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i 


A   DIGEST 


OF  ALL  THE 


REPORTED    DECISIONS 


OF   THE    SUPERIOR   COURTS, 


From  1884  to  1888  inclusive. 


TOOETHBB  WITH  A 


SELECTION   FROM  THOSE  OF  THE  IRISH  COURTS. 


BT 


JOHN   MEWS, 


BABBUTTKB-A'-LA.W. 


LONDON: 

SWEET    AND    MAXWELL,    Limited, 

3,  CHANCERY     LANE; 

STEVENS    AND    SONS,    Limited, 

119  add  120,  CHANCERY    LANE  ; 

late  $vb\id)tti. 

1889. 


LdHA\/  OF  T-.t 


$<*  \\* 


London: 
bbadbuky,  aqnbw,  ft  co.,  printers,  whitbfbiar3. 


THE 


REPORTS  COMPRISED  IN   THIS  DIGEST. 


REPORTS. 


Aspinall's  Maritime  Cases 
Cababefc  Ellis... 

Coltman 

Cox's  Criminal  Cases 

Fox 

Irish  Reports    ... 

Justice  of  the  Peace 

Law  Journal     . . . 

Law  Reports     . . . 

Law  Times  (N.  S.) 

Megone 

Morrell  ... 

Herille  k  Macnamara 
O'Malley  k  Hardcastle 
Weekly  Reporter 


ABBREVIATIONS. 


Asp.  M.  C. 

\Jm   Ob   J£«       .  .  . 

Colt. 

Cox,  C.  C. 
Fox 
L.  R.,  It. 

J .    X  .  ... 

.  ,  -Li.  «•  ••  • 

.  ,  Li.  A. 

.  '  L.  T. 
Meg. 

M.  S.  R. . . . 
Nev.  &  Mac. 
O'M.  k  H. 
W.  R.      ... 


COURTS. 


All. 

Nisi  Prius. 

Registration  Cases. 

Central  Criminal  and  Crown. 

Registration  Cases. 

All. 


Cases  under  Companies  Acts. 
Bankruptcy  Cases. 
Railway  Commission. 
Election  Petitions. 
All. 


ABBREVIATIONS. 


H.  L.,  House  of  Lords. 

P.  C.  Privy  Council. 

LJJ.  and  L-J.,  Lords  Justices,  Lord  Justice. 

L  CL,  Lord  Chancellor. 

U.  and  J.,  Justices,  Justice. 

*X  Master  of  the  Rolls. 

Ch.  D„  Chancery  Division. 

Q.  B.  D.,  Queen's  Bench  Division. 

C.  P.  D„  Common  Pleat  Division. 

Ix.  D„  Exchequer  Division. 

D->  Divisional  Court. 

P.  D.,  Probate,  Divorce  and  Admiralty  Division. 

Mat,  Matrimonial. 

ftob.  or  P.,  Probate. 

Qi,  Chancery. 

V.-C.  B.,  Vice- Chancellor  Bacon. 


C.J.B.,  Chief  Judge  in  Bankuptcy. 

Q.  B.,  Queen's  Bench. 

Bk.,  Bankruptcy. 

C.  C.  R.,  Crown  Cases  Reserved. 

C.  A.,  Court  of  Appeal. 

App.  Cas.,  Appeal  Cases  (Law  Reports). 

M.  C,  Magistrates'  Cases. 

S.  C,  Same  Case. 

S.  P.,  Same  Point  or  Principle. 

E.,  England. 

Sc,  Scotland. 

It.,  Ireland. 

W.  N.,  Weekly  Notes  (Law  Reports). 

L.  R.,  Law  Reports. 

S.  JM  Solicitor's  Journal. 

L.  T.  Journ.,  Law  Times'  Journal. 


&  digest 

OF  ALL   THE 

CASES    REPORTED 


From   1884   to    1888   inclusive. 


Akeehtte.]— A  husband  who  had  obtained 
decree  nisi  for  dissolution  of  bin  marriage  died 
Mote  the  time  for  making'  It  absolute  had 
armed: — Held,  that  the  legal  personal  repre- 
sentative of  the  hnsband  could  not  revive  the 
suit  for  the  purpose  of  applying  to  make  the 
decree  absolute.  Stanhope  v.  Stankope,  11  P.  D, 
103  ;  65  L.  J.,  P.  38 ;  64  L.  T,  906  ;  34  W.  E. 
4*6  ;  50  J.  P.  276— C.  A. 


ABDUCTION. 

See   CRIMINAL   LAW.. 


ABSTRACT  OF  TITLE. 

See  VENDOR  AND  PDBCHASEB. 


ACCIDENT. 

See   HKQUQKNCB, 


Contrast  by  Creditor  to  take  lata  than  Bum 
dua.] — An  agreement  between  judgment  debtor 
and  creditor  that,  in  consideration  of  the  debtor 
paying  down  part  of  the  judgment  debt  and 
costs,  and  on  condition  of  his  paying  to  the 
creditor  or  his  nominee  the  residue  by  instal- 
ments, the  creditor  will  not  take  any  proceed- 
ings on  the  judgment,  is  nudum  pactum,  being 
without  consideration,  and  does  not  prevent  the 
creditor,  after  payment  of  the  whole  debt  and 
coats,  from  proceeding  to  enforce  payment  of 
the  interest  upon  the  judgment.  Pinel't  cat* 
(5  Rep.  117  a),  and  Cumber  v.  Wane  (1  Str. 
+26)  followed.  Fbakei  t.  Beer,  9  App.  Cas.  605  ; 
64  L.  J.,  Q.  B.  130 :  61  L.  T.  833  ;  33  W.  R,  233 
-H.  L.  (E.). 

Cheque  sent  "  to  Balanea  Account " — Cheque 
retained  "  on  account"  and  cashed.]— A. sent  B. 
a  "cheque  to  balance  account,  as  per  Inclosed 
statement,"  The  inclosed  statement  debited  B. 
with  a  sum  claimed  on  account  of  defects  in 
work  done.  8.  replied  acknowledging  the  re- 
ceipt of  the  cheque  "on  account,"  and  shortly 
afterwards  sent  A.  a  statement  of  account, 
omitting  the  sum  claimed  by  A.  for  defective 
work,  and  debiting  A.  with  a  small  sum  for  dis- 
count not  allowed  in  his  account,  and  in  the 
accompanying  memorandum  said  :  "We  would 
thank  you  for  a  remittance  of  the  balance,  or  we 
shall  be  obliged  to  take  proceedings  to  recover 
same."  A.  replied,  sending  a  cheque  for  the 
discount  claimed.  B,  kept  and  cashed  the 
cheques.  In  an  action  for  the  balance  B.  was 
nonsuited  on  the  ground  that,  having  taken  and 
cashed  the  first  cheque,  he  was  bound  to  apply 
it  according  to  A.'s  intention : — Held,  that  the 
nonsuit  was  wrong.  Ackroyd  t.  SmilhUt,  64 
L.  T.  130 ;  CO  J.  P.  S38--D, 


a  ©igest 

OF  ALL   THE 

CASES   KEPOKTED 


From   1884   to    1888   inclusive. 


Divorce — Death  of  Petitioner  before  Decree 
Ahaolute.  ] — A  husband  irho  had  obtained  a 
decree  nisi  for  dissolution  of  his  marriage  died 
before  the  time  for  making  it  absolute  bad 
arrived : — Held,  that  the  legal  personal  repre- 
sentative of  the  husband  could  not  roYiyc  the 
suit  for  the  purpose  of  applying  to  make  the 
decree  absolute.  Stanhope  v.  Stanhope,  11 
103  ;  65  L.  J.,  P.  36  ;  54  L.  T.  906  ;  34  T 
446  ;  SO  J.  P.  276— C.  A. 


ABDUCTION. 

See   CRIMINAL    LAW.. 


ABSTRACT  OF  TITLE. 

See  VENDOK  AND  PURCHASES. 


ACCIDENT. 

&*   NKQIJHENCa. 


ND   SATIS- 
^-wxION. 

Contract  by  Creditor  to  take  leu  than  Bom 

due.] — An  agreement  between  judgment  debtor 
and  creditor  that,  in  consideration  of  the  debtor 
paying  down  part  of  the  judgment  debt  and 
'       ->  the 


ments,  the  creditor  will  not  take  any  proceed* 
ings  on  the  judgment,  La  nudum  pactum,  being 
without  consideration,  and  does  not  prevent  the 
creditor,  after  payment  of  the  whole  debt  and 
costs,  from  proceeding  to  enforce  payment  of 
the  interest  upon  the  judgment.  Piiul't  cote 
(5  Sep.  117  a),  and  Cumber  r.  Wane  (1  Btr. 
426)  followed.  Faakei  T.  Beer,  9  App.  Cas.  606  ; 
54  L.  J.,Q.  B.  130;  61  L.  T.  833;  33  W.  K.  233 
— H.  L.  (B-). 

Cheque  lent  "  to  Balance  Account " — Cheque 
retained  "  on  account"  and  cashed.  J— A.  sent  B. 
a  "  cheque  to  balance  account,  as  per  Inclosed 
statement"  The  inclosed  statement  debited  B. 
with  a  sum  claimed  on  account  of  defects  in 
work  done.  B-  replied  acknowledging  the  re- 
ceipt of  the  cheque  "  on  account,"  and  shortly 
afterwards  sent  A.  a  statement  of  account, 
omitting  the  sum  claimed  by  A.  for  defective 
work,  and  debiting  A.  with  a  small  sum  for  dis- 
count not  allowed  in  his  account,  and  in  the 
accompanying  memorandum  said:  "We  would 
thank  yon  for  a  remittance  of  the  balance,  or  we 
shall  be  obliged  to  take  proceedings  to  recover 
same."  A.  replied,  sending  a  cheque  for  the 
discount  claimed.  B.  kept  and  cashed  the 
cheques.  In  an  action  for  the  balance  B.  was 
nonsuited  on  the  ground  that,  having  taken  and 
cashed  the  first  cheque,  he  was  bound  to  apply 
it  according  to  A.'s  intention : — Held,  that  the 
nonsuit  was  wrong.     AcJtrtiyd  v.  Smit/iin,   04 

L.T.130;  60J.P.858— D. 


ACTION— Parties. 


Cheque  by  Third  Party  for  a  imaller  (tarn — 
Payment  of  Costs  without  Intereit  by  Mistake.] 
— An  action  having  been  dismissed  with  costs, 
the  defendant's  solicitor  got  the  costs  taxed,  and 
took  the  taxing-master's  certificate  to  the  plain- 
tiffs solicitor,  who  gave  him  a  cheque  for  the 
amount  of  the  costs,  and  received  the  certificate 
with  a  receipt  indorsed.  After  the  cheque  had 
been  paid,  the  defendant's  solicitor  discovered 
that  the  defendant  was  entitled  to  interest  on 
the  amount  of  taxed  costs,  and  applied  to  the 
plaintiff  to  pay  it.  The  plaintiff  having  refused 
to  pay  the  interest,  the  defendant  moved  for  an 
order  directing  the  plaintiff  to  attend  before  the 
proper  officer  and  produce  the  certificate  in 
order  that  a  writ  of  execution  might  be  issued 
for  the  interest : — Held,  that  the  defendant 
acting  by  his  solicitor  must  be  taken  to  have 
accepted  the  cheque  of  the  plaintiff's  solicitor  in 
full  accord  and  satisfaction  of  the  whole  debt 
due  from  the  plaintiff,  and  the  motion  was 
accordingly  refused.  Foakes  v.  Beer  (9  App. 
Cas.  605)  distinguished  Bidder  v.  Bridges^ 
37  Ch.  D.  406  ;  57  L.  J.,  Ch.  300 ;  58  L.  T.  656 
— C.  A. 

Forgiveness  of  Amount  of  Promissory  Hote.l 
Where  a  promissory  note  was  payable  a  month 
after  demand,  forgiveness  of  the  amount  of  the 
note  is  no  defence  unless  the  forgiveness  be 
before  the  note  has  become  payable.  Smith  v. 
Gordon,  1  C.  &  B.  105— Day,  J. 


ACCOUNTS. 

See  PRACTICE. 
Aocounts  stated.] — See  Money  Counts, 


ACKNOWLEDGMENT. 

•  * 

I.  Of  Debts  and  Demands  to  bab  Sta- 
tute of  Limitations. — See  Limi- 
tation (8TATUTE8  OF). 

II.  To  bar  Wife's  Interest  in  Pbopebty. 
—See  Husband  and  Wife. 


ACQUIESCENCE. 

Sea  WAIVER. 


ACT  OF   PARLIAMENT. 

■  ■  ■  • 

See  STATUTE. 


ACTION. 

I.  Parties. 

II.  Causes  of  Action. 

in.  Notice  of  Action. 

IV.  Choses  in  Action. 

V.  When  Action  abates   by  Death  of 
Parties.— &?«  Practice  (Parties). 

VI.  Whether  Arbitration  a   Condition 
Precedent. — See  Arbitration. 

I.  PARTIES. 

By  some  Members  of  Committee  (on  behalf  of 
all)  against  former  Member.]— An  action  by 
certain  members  of  a  church  building  com- 
mittee, on  behalf  of  themselves  "  and  all  others 
the  subscribers  "  to  the  building  fund,  against  a 
former  member  of  the  committee  for  an  account, 
cannot  be  maintained.  Strickland  v.  Weldon, 
28  Ch.  D.  426  ;  54  L.  J.,  Ch.  452  ;  52  L.  T.  247  ; 
33  W.  R.  545— Pearson,  J. 

On  Contract— Third  Party.] — To  entitle  a 
third  person,  not  named  as  a  party  to  the  con- 
tract, to  sue  either  of  the  contracting  parties, 
that  third  person  must  possess  an  actual  benefi- 
cial right  which  places  him  in  the  position  of 
cestui  que  trust  under  the  contract.  Qandy  v. 
Gandy,  30  Ch.  D.  57  ;  54  L.  J.,  Ch.  1164 ;  53 
L.  T.  306  ;  33  W.  R.  803— C.  A. 

Felony— Effect  of,  on  acquiring  Property.] — 
A  testatrix,  by  her  will,  dated  in  July,  1869, 
devised  and  bequeathed  all  her  real  and  personal 
estate  to  T.  K.  in  trust  for  her  sister  M.  C.  for 
life,  and  after  her  decease  npon  trust  to  pay  to 
or  permit  H.  C.  D.  to  receive  the  interest  for  his 
life,  but  if  he  should  become  bankrupt  or  pub- 
licly insolvent,  or  should  compound  with  his 
creditors,  or  should  assign  or  incumber  his 
interest  under  the  trust,  or  any  part  thereof,  or 
should  otherwise  by  his  own  act,  or  by  operation 
of  law,  be  deprived  of  the  absolute  personal 
enjoyment  of  the  same  interest,  or  any  part 
thereof,  then,  and  in  either  of  such  cases,  the 
trust  in  favour  of  H.  C.  D.  should  be  void,  and 
T.  K.  should  thenceforth  apply  the  interest  for 
the  maintenance,  education,  and  support  of  the 
children  of  H.  C.  D.  The  testatrix  died  in  1871, 
and  M.  C.  died  in  1881.  In  July,  1878,  H.  C.  D. 
was  convicted  of  felony,  and  sentenced  to  ten 
years'  penal  servitude.  Before  the  expiration  of 
his  sentence  he  obtained  a  ticket-of -leave,  and 
commenced  this  action  for  the  administration  of 
the  estate  of  the  testatrix,  and  claimed  the 
arrears  of  interest : — Held,  that,  under  s.  30  of 
the  Act  38  &  34  Vict.  c.  23,  he  could  commence 
the  action.  Held,  also,  that  he  had  not  been 
deprived  of  the  actual  enjoyment  of  the  life 
interest  by  any  operation  of  law ;  and  that  he 
was  entitled  to  all  arrears  of  interest.  Dash,  In, 
re,  Barley  v.  King,  57  L.  T.  219— Chitty,  J. 

Statutory  Bights— Provision  for  special  benefit 
of  Individual.]— Where  'an  act  of  parliament 
contains  a  provision  for  the  special  protection  or 
benefit  of  an  individual,  he  may  enforce  his 


ACTION— Causes  of  Action. 


6 


rights  thereunder  by  an  action  without  either 
joining  the  attorney-general  as  a  party  or  showing 
that  he  has  sustained  any  particular  damage. 
Betonport  (Mayor)  v.  Plymouth  Tramways 
Company,  52  L.  T.  161  ;  49  J.  P.  405 — C.  A. 


II.  CAUSES  OF  ACTION. 

"Cause  of  Action.1']  —  A  cause  of  action 
includes  every  fact  which  it  would  be  necessary 
to  prove,  if  traversed,  in  order  to  enable  a 
plaintiff  to  sustain  his  action.  Read  v.  Brown, 
22  Q.  B.  D.  128  ;  58  L.  J.,  Q.  B.  120  ;  60  L.  T. 
250  ;  37  W.  B.  131— C.  A. 

Tetany  disclosed  —  Aotion  whether  main- 
tainable.]— In  an  action  for  the  seduction  of 
the  plaintiff's  daughter  a  paragraph  of  the  state- 
ment of  claim  alleged  that  the  defendant 
administered  noxious  drugs  to  the  daughter  for 
the  purpose  of  procuring  abortion  : — Held,  that 
the  paragraph  could  not  be  struck  out  as  dis- 
closing a  felony  for  which  the  defendant  ought 
to  have  been  prosecuted,  inasmuch  as  the  plaintiff 
was  not  the  person  upon  whom  the  felonious  act 
was  committed,  and  had  no  duty  to  prosecute. 
Appleby  v.  Franklin,  17  Q.  B.  D.  93  ;  65  L.  J., 
Q.  B.  129  ;  54  L.  T.  135  ;  34  W.  B.  231 ;  50  J.  P. 
359— D. 

Waiver  of  Tort— Aotion  on  Contraet.]— After 
the  death  of  a  sheriff  and  before  the  appoint- 
ment of  his  successor,  the  under-sheriff  sold 
goods  under  a  writ  delivered  to  him  before  the 
death  of  the  sheriff.  He  did  not  pay  over  all  the 
proceeds  to  the  execution  creditor,  who  more 
than  six  months  after  the  death  of  the  under- 
sheriff  and  also  more  than  six  months  after  they 
had  undertaken  administration,  sued  his  executors 
for  money  had  and  received  and  also  for  the 
tort : — Held,  that  the  action  for  money  had  and 
received  would  lie  ;  and  that  as  that  action  did 
not  require  the  same  evidence  to  support  it  as 
the  action  for  tort,  it  was  not  necessary  to  waive 
the  tort.  Gloucestershire  Banking  Co.  v. 
Edward*,  19  Q.  B.  D.  575  ;  56  L.  J.,  Q.  B.  614  ; 
35  W.  R.  842— D. 

Bemedy  for  Breach  of  Statutory  Duty.]— 
There  are  three  classes  of  cases  in  which  a  lia- 
bility may  be  established  by  statute :— (1) 
Where  a  liability  existed  at  common  law  and 
was  only  re-enacted  by  the  statute  with  especial 
form  of  remedy,  in  such  cases  the  plaintiff  had 
his  election  unless  the  statute  contained  words 
necessarily  excluding  the  common  law  remedy  ; 
<2)  where  a  statute  has  created  a  liability  but 
given  no  remedy,  then  the  party  may  adopt  an 
action  of  debt  or  other  remedy  at  common  law 
to  enforce  it ;  (3)  where  the  statute  creates  a 
liability  not  existing  at  common  law  and  gives  a 
particular  remedy,  here  the  party  must  adopt 
the  form  of  remedy  given  by  the  statute.  Vol- 
Janee  v.  Falle,  13  Q.  B.  D.  109  ;  35  L.  J.,  Q.  B. 
459  ;  51  L.  T.  168 ;  32  W.  R.  770  ;  48  J.  P.  619  ; 
5  Asp.  M.  C.  280— Per  Mathew,  J. 

Bannum  absque  Injuria— Assuming  Business 
*ame.J — The  short  address  "Street,  London," 
was  used  for  many  years  in  sending  telegrams 
from  abroad  to  Street  fc  Co.,  of  Commit    A 


bank  adopted  by  arrangement  with  the  Post- 
office  the  phrase  "  Street,  London,*1  as  a  cypher 
address  for  telegrams  from  abroad  to  them- 
selves : — Held,  that  the  court  had  no  jurisdiction 
to  grant  an  injunction  restraining  the  bank  from 
using  such  address,  as  there  was  no  attempt  to 
interfere  with  trade,  no  legal  injury  done,  but 
simply  a  matter  of  inconvenience.  Street  v. 
Union  Bank  of  Spain  and  England,  30  Ch.  D. 
156 ;  55  L.  J.,  Ch.  81  ;  53  L.  T.  262 ;  33  W.  B. 
901— Pearson,  J. 

Beal  Aotion— Aotion  for  Debt/]— The  defen- 
dant was  the  owner  and  occupier  of  certain 
lands  in  the  parish  of  P.,  whioh  by  a  private  act 
were  charged  with  the  payment  to  the  vicar  of 
2101.  in  lieu  of  all  tithes.  The  act  provided  that 
if  the  annual  rents  were  in  arrear,  the  vicar  was 
to  have  such  and  the  same  powers  and  remedies 
for  recovering  the  same  as  by  the  laws  and 
statutes  of  the  realm  are  provided  for  the  recovery 
of  rent  in  arrear ;  and  also  that  if  no  sufficient 
distress  was  found  on  the  premises,  the  vicar 
might  enter  and  take  possession  of  the  same 
until  the  arrears  were  satisfied.  Four  years1 
arrears  of  the  annual  rent  accrued  in  respect  of 
the  whole  of  the  lands  charged,  during  the  whole 
of  which  period  the  defendant  was  the  owner 
and  occupier  of  a  portion  only  of  such  lands  :— 
Held,  that  the  vicar  might  maintain  an  action 
of  debt  against  the  defendant  for  the  whole 
amount  in  arrear,  the  remedy  by  real  action, 
which  was  a  higher  remedy  than  the  action  by 
debt,  having  been  abolished  by  3  &  4  Will.  4,  c. 
27,  s.  36.  Christie  v.  Barker,  53  L.  J.,  Q.  B. 
537— C.  A. 

Balance  Order.] — By  a  balance  order  made  in 
the  winding-up  of  a  company,  the  defendant, 
who  was  a  shareholder  and  director  of  the  com- 
pany, was  ordered  to  pay  a  sum  of  252/.  due  in 
respect  of  calls  to  the  official  liquidator  of  the 
company.  The  liquidator  brought  an  action 
against  the  defendant  for  the  sum  due  under  the 
balance  order  and  the  defendant  claimed  to  set 
off  a  sum  due  to  him  from  the  company  : — Held, 
that  no  action  can  be  brought  upon  a  balance 
order.  Chalk  $  Co.  v.  Tennent,  67  L.  T.  698  ; 
36  W.  B.  263— North,  J.  8ee  Maekay,  Ex  parte, 
Shirley,  In  re,  68  L.  T.  287— D. 

Action  for  Costs — Appeal  to  Quarter  Sessions.] 
— An  action  lies  to  recover  costs  which  have 
been  taxed  by  the  clerk  of  the  peace,  and  which 
arise  out  of  an  order  made  by  justices  in  the  case 
of  a  pauper  lunatic  under  16  &  17  Vict.  c.  97,  s. 
97,  and  subsequently  abandoned  after  notice  of 
appeal  to  sessions  Las  been  given.  Bewsbnry 
Union  v.  West  Ham  Union,  56  L.  J.,  M.  C.  89  ; 
52  J.  P.  151— D. 

High  Court— Hot  below  £10.]— An  action  in 
the  High  Court  claiming  relief  which,  before  the 
Judicature  Act,  could  have  been  given  only  in 
the  Court  of  Chancery,  cannot  now  be  main- 
tained if  the  subject-matter  is  below  10/.  in 
value.  The  old  rule  of  the  Court  of  Chancery  in 
this  respect  still  remains  in  force.  Westbury-on- 
Severn  Rural  Sanitary  Authority  v.  Meredith, 
30  Ch.  D.  387  ;  65  L.  J.,  Ch.  744  ;  52  L.  T.  839  ; 
34  W.  R.  217— C.  A.  [By  Bules  of  Supreme 
Court,  1883,  the  Chancery  Consolidated  General 
Orders  of  1860  are  repealed.  ] 

B  2 


ACTION — Notice  of  Action — Chose*  in  Action* 


8 


III,  NOTICE  OF  ACTION, 


Constable— Contagious  Diseases  (Animals).]— 
Section  19  of  1  &  2  Will.  4,  c.  41,  by  which,  in 
all  actions  for  anything  dotie  in  pursuance  of 
that  act,  the  venue  is  to  be  local,  and  the  defen- 
dant to  receive  notice  of  action,  applies  only  to 
such  acts  as  a  constable  might  at  the  date  of  the 
statute  have  been  called  upon  to  perform  ;  there- 
fore the  section  does  not  apply  in  the  case  of  a 
constable  acting  under  the  Contagious  Diseases 
(Animals)  Act,  1878.  Bryson  v.  Russell,  14 
Q.  B.  D.  720  ;  54  L.  J.,  Q.  B.  144  ;  52  L.  Tf  208  ; 
33  W.  R.  34  ;  49  J,  P.  293— C.  A. 

Highways  Act— Injunction.] — The  provision 
of  section  109  of  the  Highways  Act,  1835,  as  to 
notice  of  action,  does  not  apply  where  the 
principal  object  of  the  action  is  an  injunction. 
Phelips  v.  Hadham  District  Board,  1  C,  &  E. 
67— Coleridge,  C.  J. 

Public  Health  Act— Act  "done  under  the 
provisions  of  this  Act."] —The  effect  of  the 
Public  Health  Act,  1875,  which  makes  improve- 
ment commissioners  under  local  acts  urban 
sanitary  authorities,  is  to 'reconstitute  them  as 
new  bodies  under  the  act,  vesting  in  them  as  such 
new  bodies  the  powers  given  by  the  local  acts  as 
well  as  those  given  by  the  Public  Health  Act ; 
and  such  commissioners  in  subsequently  doing 
any  act  in  the  exercise  of  the  powers  originally 
conferred  by  their  local  acts  are  acting  under 
the  Publio  Health  Act,  1875,  and  consequently 
are  entitled  in  respect  of  such  act  to  any  protec- 
tion or  privilege  given  by  that  act  to  members  of 
local  authorities  acting  under  its  provisions. 
Lea  v.  Facey,  19  Q.  B.  D.  352  ;  56  L.  J.,  Q.  B. 
536  ;  58  L.  T.  32  ;  35  W.  B.  721  :  51  J.  P.  756— 
CA. 

A  local  board,  assuming  to  act  under  the 
authority  of  s.  39  of  the  Public  Health  Act,  1875 
(38  &  39  Vict.  c.  55),  erected  a  public  urinal 
partly  upon  a  highway  and  partly  upon  a  strip 
of  land  belonging  to  the  plaintiff,  and  so  near  to 
other  adjoining  land  of  the  plaintiff  as  to  be  a 
nuisance  to  her  and  her  tenants,  and  to  depreciate 
the  vaJue  of  her  property : — Held,  that  the  plain- 
tiff was  entitled  to  a  mandatory  injunction  to 
restrain  the  board  from  continuing  the  urinal 
upon  her  land  or  so  near  thereto  as  to  cause 
injury  or  annoyance  to  her  or  her  tenants,  and 
that  in  such  a  case  notice  of  action  under  s.  264 
is  not  required.  Sellors  v.  Matlock  Bath  Local 
Board,  14  Q.  B.  D.  928  ;  52  L.  T.  762— Den- 
man,  J. 

Person  Acting  when  Disqualified.]  —A 

person  who  is  in  fact  disqualified  from  being  a 
member  of  a  local  authority  but  who  acts  in  the 
bonfi,  fide  belief  that  he  is  a  member  is  entitled 
to  notice  of  action  under  s.  264  of  tho  Public 
Health  Act,  1875.    Lea  v.  Facey,  supra, 

Justices  —  Negligence  in  building  Police 
Station.] — The  building  of  a  police  station  is  an 
act  done  by  justices  in  the  execution  of  their 
office  ;  and  the  justices,  if  sued  for  negligence  in 
the  building  or  maintaining  thereof,  and  for 
damage  arising  therefrom,  are  entitled  to  the 

?rotection   afforded   by  11  &  12  Vict.  c.  44. 
tardy  v.  North  Biding  Justices,  50  J.  P.  663— 
Hnddleston,  B, 


Metropolis  Management— Actions  in  Equity- 
Injunction.]— Section  106  of  the  Metropolis 
Local  Management  Acts  Amendment  Act,  1862, 
which  requires  that  before  any  proceeding  is 
instituted  against  a  district  board  a  month's 
notice  shall  be  served  on  them  by  the  person  in- 
tending to  take  the  proceeding,  does  not  apply 
to  actions  in  equity — per  North,  J.  That  section 
does  not  apply  to  an  action  for  an  injunction  to 
restrain  a  nuisancer— per  Lopes,  L.J,  (Cotton  and 
Lindley,  KJJ.,  not  dissenting).  Bateman  v. 
Poplar  Board  of  Works.  33  Ch.  D.  360 ;  56  L.  J., 
Ch.  149  ;  55  L,  T.  374— C.  A, 

General  Beqnirements.] — An  action  against 
the  Melbourne  Harbour  Trust  Commissioners  is 
an  action  brought  against  a  "person"  within 
the  meaning  of  s.  46  of  the  Melbourne  Harbour 
Trust  Act ;  and  notice  in  writing  thereof  com- 
plying in  form  or  in  substance  with  the  require* 
ments  of  the  section  is  necessary.  Union  Steam- 
ship Company  of  New  Zealand  v.  Melbourne 
Harbour  Commissioners,  9  App.  Ca&  365  ;  53  L. 
J.,  P.  C.  59  ;  60  L.  T.  337  ;  5  Asp,  M.  C,  222— 
P,  C. 

IV.— CHOSBS  IN  ACTION. 

What  are.] — Choses  in  action  include  all  per- 
sonal chattels  not  in  possession.  Shares  in  a 
railway  company  are  choses  in  action.  Colonial 
Bank  v.  Whinney,  11  App.  Cas.  426  ;  56  L.  J., 
Ch.  43  ;  56  L.  T.  362  ;  84  W.  R.  705  ;•  3H.B.B. 
207— H.  L.  (E.). 

Voluntary  Assignment  —  Incomplete  Gift  — 
Intention  of  Donor.] — A.  held  certain  bank 
shares  in  trust  for  his  father  B.,  under  a  written 
acknowledgment  of  the  trust.  B.  indorsed  on 
the  acknowledgment :  "  I  transfer  these  shares 
to  my  daughter  C.  for  her  sole  use  and  benefit," 
— B.  also  held  two  I  O  XTb,  one  from  A.,  the 
second  from  another  person  indebted  to  him. 
Upon  each  of  these  B.  indorsed  :  "  I  transfer  the 
debt  of  £  to  my  daughter  C,  for  her  sole 

use  and  benefit."  B.  signed  these  indorsements, 
and  handed  the  acknowledgment  and  I  O  TTs  to 
C.  There  was  no  consideration  for  the  transfer. 
B.  did  not  give  any  notice  of  it  to  A.  or  the 
debtor  upon  the  second  I O  U,  and  continued 
till  his  death,  five  years  later,  to  receive  the 
dividends  on  the  shares  and  the  interest  on  A's 
I  O  IT : — Held,  that,  although  the  indorsements, 
accompanied  by  the  delivery  of  the  acknowledg- 
ment and  I  O  U's  were  capable,  if  followed  by 
notice  to  the  trustees  and  debtors,  of  operating 
as  equitable  assignments,  yet  as  it  appeared, 
having  regard  to  the  evidence  and  especially 
to  B.'s  receipt  of  the  subsequent  dividends  and 
interest,  that  he  did  not  intend  at  the  time  of 
the  indorsement  to  divest  himself  absolutely  of 
his  property  in  the  shares  or  debts,  but  attempted 
at  most  to  effect  a  disposition  to  become  opera- 
tive only  at  his  death,  and  in  the  meanwhile  to 
be  ambulatory  and  revocable,  they  did  not  con- 
stitute a  complete  gift  enforceable  in  equity. 
Qason  v.  Rich,  19  L.  R.,  Ir.  391— C.  A, 

Marriage— Severance  of  Wife's  Joint  Tenanoy. 
— Marriage  does  not  operate  as  a  severance  of  the 
wife's  joint  tenancy  in  a  chose  in  action  (Bank 
stock)  which  has  not  been  reduced  into  pos- 
session by  the  husband.    Baillic  v,  Treharnc, 


ADVANCEMENT* 


10 


(17Ch.D.388)  disapproved.  Butler* $  Trust*, 
I*  rt,  Hughes  v.  Anderson,  38  Ch.  D.  286  ;  57 
L  J^  CK  643  ;  69  L.  T.  386 ;  36  W.  R.  817— 
CI 


ADEMPTION. 

Of  Legacies.]— &*  Will. 


ADJUDICATION. 

Of  Bankrupt!.]—^  Bankruptcy. 


ADMINISTRATION. 

Of  Asset*,] — See  Executor  and  Adminis- 
trator— Will  CPayment  of  Legacies). 

Aetkn.] — See   Bxecutob    and    Adminis- 
trator 

Letter!  ©£] — See  Will. 


ADMIRALTY. 

A*?  SHIPPING. 


ADMISSIONS. 

Ia  Pleading!.] — See  Practice. 
As  Evidence.] — &«  Evidence. 


ADULTERATION. 

A?t?  HEALTH. 

Krng  Been  of  different  Strength!.]— See 
Bbtotoi  (Excise). 


ADULTERY. 

8ee  HUSBAND  AND  WIFE 


ADVANCEMENT. 


What  if.] — Advancement  is  a  payment  to 
persons  who  are  presumably  entitled  to,  or  have 
a  vested  or  contingent  interest  in,  an  estate  or  a 
legacy  before  the  time  fixed  by  the  trust  instru- 
ment for  their  obtaining  the  absolute  interest  in 
a  portion  or  a  whole  of  that  to  which  they  would 
be  entitled.  (Per  Cotton,  L.  J.)  Aldridge,  In 
re,  Abram  v.  Aldridge,  66  L.  T.  654 — C.  A. 
Beversing  50  J.  P.  723— Kay,  J. 


Absence  of  express  Words— Power  whether 
inferred.] — In  the  absence  of  express  words 
authorising  the  payment,  by  way  of  advance- 
ment, of  part  oi  the  corpus  of  an  estate  to  a 
person  who,  under  the  trust  instrument,  can 
never  become  absolutely  entitled  to  a  share  of  the 
corpus,  the  court  will  not  infer  a  power  to  the 
trustees  to  advance  a  sum  out  of  the  corpus  from 
the  mere  fact  that  the  instrument  contains  a 
power  of  advancement  simpliciter.    lb. 

In  favour  of  Children— Gift  of  Income  to 
Children  and  Corpus  to  Grandchildren.] — A 
testator  directed  his  trustees  to  invest  the  pro- 
ceeds of  sale  of  his  residuary  estate,  and  to 
pay  the  income  to  his  eight  sons  and  daughters 
in  equal  shares.  The  will  then  contained  the 
following  clause:  "And  I  give  a  power  of  ad- 
vancement to  my  trustees."  After  the  death  of 
the  survivor  of  the  children,  the  corpus  of  the 
estate  was  directed  to  be  paid  to  the  testator's 
grandchildren.  The  will  contained  a  special 
power  of  advancement  out  of  corpus  in  the  case 
of  grandchildren  and  a  clause  of  forfeiture  in 
case  a  child  or  other  object  of  the  trusts  should 
attempt  to  anticipate  his  share  : — Held,  that  the 
trustees  had  no  power  to  make  advances  out  of 
the  corpus  to  the  children.    lb. 

Power  of,  exercisable  with  Consent  of  Life 
Tenant — Bankruptcy.]— A  testatrix,  who  died 
in  1884,  gave  a  moiety  of  a  trust  fund  to 
trustees  upon  trust  to  pay  the  income  to 
J.  C,  during  his  life,  and  after  his  death  in  trust 
for  W.  J.  (an  infant),  empowering  the  trustees 
to  raise  any  part  not  'exceeding  one-half  of 
W.  J.'s  share  for  his  advancement,  subject  to 
the  iconsent  in  writing  of  J.  C.  during  his  life. 
The  trustees  were  desirous  of  exercising  the 
power,  but  J.  C.  had  become  a  bankrupt,  and 
was  still  undischarged : — Held,  that  J.  C.'s  power 
of  consenting  to  the  advancement  was  not  ex- 
tinguished by  his  bankruptcy,  but  could  not  be 
exercised  without  the  sanction  of  his  trustee  in 
bankruptcy  acting  under  the  direction  of  the 
Court  of  Bankruptcy.  Cooper,  In  re,  Cooper  v. 
Slight,  27  Ch.  D.  565  ;  51  L.  T.  113  ;  32  W.  R. 
1016— Kay,  J. 

Father  and  Child— "Advancement  by  por- 
tion."]— A  gift  was  made  by  a  father  to  a  son 
to  enable  the  son  to  pay  a  debt : — Held,  on  the 
death  of  the  father  intestate,  to  be  an  "  advance- 
ment by  portion  "  of  the  son,  within  sect.  6  of 
the  Statute  of  Distributions.  The  opinion 
expressed  by  Jessel,  M.R.,  in  Taylor  v.  Taylor, 
(20  L.  B.,  Eq.,  155)  dissented  from.  Blochley, 
In  re,  Blochley  v.  Blochley,  29  Ch.  D.  250  ;  54 
L.  J.,  Ch.  722  ;  33  W.  R.  777— Pearson,  J. 

Set-off— Debt  due  to  Father  from  Son.] — 


11 


ADVANCEMENT. 


12 


A  father  borrowed  and  advanced  to  his  son  200Z., 
to  enable  him  to  stock  a  farm.  The  father  sub- 
sequently paid  off  the  lender  without  taking  any 
acknowledgment  of  any  kind  from  the  son,  ex- 
cept that  he  received  interest  from  him  -for 
some  years  : — Held,  that  there  was  a  debt  due 
from  the  son  to  the  father  which  could  be  set-off 
against  a  share  of  the  father's  residuary  personal 
estate  coming  to  the  son  as  one  of  the  next  of 
kin.    Milne*  v.  Sherwin,  33  W.  R.  927— North,  J. 


Evidence  of  Intention.] — After  a  testator 


had  made  his  will,  giving  his  son  a  share  in  his 
residuary  estate,  he  purchased  for  such  son 
certain  farming  stock,  and  placed  him  in  a  farm. 
Shortly  afterwards  the  testator  died,  and  the 
trustees  of  the  will  debited  the  son  with  a  sum 
of  money  equal  to  the  value  of  the  farming 
stock,  as  having  been  advanced  to  him  by  the 
testator  by  way  of  loan,  and  as  a  debt  due  from 
him  to  the  estate  : — Held,  that  although  Orate 
v.  Earl  of  Salisbury  (3  Bro.  C.  C.  425)  laid 
down  that  where  there  had  been  a  gift  of  farm- 
ing stock  there  was  no  presumption  that  it  was 
intended  as  an  advance  to  be  set-off  as  against  a 
legacy  receivable  under  a  will,  yet  Kirk  v. 
Eddowes  (3  Hare,  509),  was  an  authority  that 
evidence  was  admissible  to  show  that  at  the  time 
of  the  gift,  the  testator  expressed  his  intention 
that  such  gift  was  an  advance  to  be  set  off  ;  that 
in  this  case  the  court  was  of  opinion  that  such  an 
intention  had  been  proved,  and  that,  there- 
fore, the  value  of  the  farming  stock  must  be 
deducted  from  the  share  of  the  son.  Turner,  In 
re,  Turner  v.  Turner,  53  L.  T.  379— Kay,  J. 


Contract  by  Son — Payment  by  joint  and 


several  Notes  of  Father  and  Son.] — In  March, 
1885,  W.  entered  into  an  agreement  with  C.  to 
purchase  a  business  for  1,5001.,  300Z.  to  be  paid 
in  cash  and  the  balance  to  be  secured  by  joint 
and  several  promissory  notes  of  W.  and  his 
father  payable  at  various  times.  By  his  will 
dated  in  October,  1885,  the  father  divided  his 
residuary  estate  into  fifths,  to  be  held  upon 
trust  for  his  five  children,  but  W.'s  share  was 
settled,  and  the  testator  declared  that  before 
any  of  his  sons  should  participate  under  the 
trusts  of  the  will  they  should  repay  all  sums 
advanced  by  him  in  his  lifetime ;  but  if  they 
should  be  unable  to  repay  such  advances,  they 
should  be  treated  as  part  of  their  shares.  W. 
had  no  means  of  his  own.  The  300Z.  and  the 
amount  due  on  the  first  promissory  note  were 
paid  by  the  father  in  his  lifetime.  After  the 
father's  death  W.  entered  into  a  deed  of  arrange- 
ment whereby  he  assigned  all  his  property  for 
the  benefit  of  his  creditors,  who  released  him 
from  his  debts  saving  their  rights  against 
sureties.  C.  proved  under  the  deed  for  the 
balance  of  the  purchase-money,  but  did  not 
obtain  complete  satisfaction,  and  he  recovered 
the  residue  from  the  father's  estate : — Held, 
first,  that  all  the  sums  paid  by  the  father  or  his 
executors  were  debts  due  from  W.  to  the  father's 
estate.  Secondly,  that  the  sums  recovered  from 
the  father's  estate  after  his  death  (including 
sums  in  payment  of  notes  which  fell  due  in  his 
lifetime)  were  not  within  the  clause  in  the  will 
relating  to  advances,  but  that  the  sums  paid  by 
the  father  in  his  lifetime  were,  and  that  the 
latter  ought  to  be  set  off  against  the  corpus  of 
W.'s  share.  Thirdly,  that  as  to  the  former  sums, 
the  executors  might  elect  whether  they  would 


recover  against  W.  upon  the  agreement  for 
indemnity  arising  out  of  the  contract  of  surety* 
ship,  in  which  case  they  might  retain  W.'s  life 
interest  in  his  share  in  satisfaction,  or  whether 
they  would  stand  in  the  place  of  C. ;  but  that  in 
the  latter  event  the  release  given  by  C.  to  W. 
would  be  effective  as  between  the  executors  and 
W.  Wnitehouse,  In  re,  Whitehouse  v.  Edwards, 
37  Ch.  D.  683  ;  57  L.  J.,  Ch.  161 ;  67  L,  T.  761 ; 
36  W.  R.  181— Stirling,  J. 


Bight  of  Father  to  charge  on  Contingent 


Interest  of  Infant  Son.] — The  Court  refused  to 
declare  that  sums  advanced  by  a  father  for  the 
benefit  of  his  infant  son  were  a  charge  on  pro- 
perty to  which  the  son  would  become  entitled 
only  in  the  event  of  his  attaining  twenty-one, 
Semble,  the  court  has  no  jurisdiction  to  make 
such  a  charge,  and  the  only  proper  form  of 
order  in  such  a  case  is  that  in  Arbue kle,  In  re 
(14  W.  R.  435).  Tanner,  In  re,  53  L.  J.r  Ch. 
1108  ;  51  L.  T.  507— Kay,  J. 

Widowed  Mother— Person  in  loco  parentis — 
Presumption.] — An  action  was  brought  by  credi- 
tors for  the  administration  of  the  estate  of  an 
intestate,  a  widow,  against  the  administrator,  who 
was  her  eldest  son,  and  who  was  acting  under 
letters  of  administration  granted  to  Mm  pre- 
viously. The  defendant  had  joined  as  surety 
with  the  intestate  in  giving  a  security  for  certain 
loans  which  had  been  procured  by  her  for  her 
own  purposes,  and  he  claimed  to  retain  oat  of 
the  assets  of  the  intestate,  in  or  coming  to  his 
hands  as  administrator,  a  sum  sufficient  to  repay 
thefe  loans  with  interest.  He  had  not,  in  tact, 
repaid  them,  although  he  was  personally  liable 
to  do  so.  The  defendant  was  at  one  period  en- 
gaged in  farming,  and  the  intestate  from  time  to 
time  made  him  small  advances  when  he  was  in 
want  of  money  to  assist  him  in  carrying  on  his 
business,  or  for  his  maintenance.  The  intestate 
never  attempted  to  recover  these  moneys  and  she 
took  no  acknowledgment  for  them.  The  plaintiffs 
sought  to  charge  the  defendant  with  the  moneys 
so  received  by  him.  By  the  chief  clerk's  certifi- 
cate it  was  certified  that  the  defendant  had  made 
the  claim  above  mentioned,  which  the  chief  clerk 
had  allowed,  and  that  the  plaintiffs  had  brought 
in  the  set-off  above  referred  to,  but  which  the 
chief  clerk  had  disallowed.  The  plaintiffs  took 
out  a  summons  to  vary  the  chief  clerk's  certificate : 
— Held,  that  the  moneys  advanced  to  the  de- 
fendant by  the  intestate  (who  was  in  loco  parentis 
at  the  time)  to  provide  for  his  necessities,  were 
presumably  gifts  to  him,  and  accordingly  the 
plaintiffs  set-off  could  not  be  allowed.  Ormc9 
In  re,  Beans  v.  Maxwell,  50  L.  T.  51 — Kay,  J, 

Godmother  —  Transfer  of  Btoek  into  Joint 
Names — Intention  to  Benefit.] — The  plaintiff,  a 
widow,  in  the  year  1880,  caused  6,000/.  Consols  to 
be  transferred  into  the  joint  names  of  herself  and 
the  defendant,  who  was  her  godson.  She  did  so 
with  the  express  intention  that  the  defendant,  in 
the  event  of  his  surviving  her,  should  have  the 
Consols  for  his  own  benefit,  but  that  she  should 
have  the  dividends  during  her  life  ;  and  she  had 
previously  been  warned  that  if  she  made  the 
transfer  she  could  not  revoke  it.  The  first  notice 
the  defendant  had  of  the  transaction  was  a  letter 
from  the  plaintiff's  solicitors  about  the  end  of 
1882,  claiming  to  have  the  fund  re-transferred  to 
the  plaintiff  :— Held,  that  the  legal  title  of  the 


13 


ADVERTISEMENT. 


14 


defendant  as  a  joint  tenant  of  the  stock  was 
complete,  although  he  had  not  assented  to  the 
transfer  until  he  was  requested  to  join  in  re- 
transferring  the  stock,  for  that  the  legal  title  of 
a  transferee  of  stock  is  complete  without  accept- 
ance. A  transfer  of  property  to  a  person  without 
Ms  knowledge,  if  made  in  proper  form,  Tests  the 
property  in  him  at  once,  subject  to  his  right  to 
repudiate  it  when  informed  of  the  transfer. 
Standing  v.  Bowring,  31  Ch.  D.  282 ;  55  L.  J., 
Ch.  218 ;  54  L.  T.  191 ;  34  W.  R.  204— C.  A. 

Held,  further,  that  the  plaintiff  could  not  claim 
a  re-transfer  on  equitable  grounds,  the  evidence 
clearly  showing  that  she  did  not,  when  she  made 
the  transfer,  intend  to  make  the  defendant  a 
mere  trustee  for  her  except  as  to  the  dividends. 
It. 


ADVERTISEMENT. 

For  Kvidenee — Contempt  of  Court] — A  co- 
respondent in  a  suit  for  divorce,  immediately 
after  the  service  of  the  citation,  caused  adver- 
tisements to  be  published  denying  the  charges 
made  in  the  petition,  and  offering  a  reward  for 
information  which  would  lead  to  the  discovery 
and  conviction  of  the  authors  of  them  : — Held, 
that  these  advertisements  constituted  a  contempt 
of  court.  Brodribb  v.  Brodribb,  11  P.  D.  66  ; 
65  L.  J.,  P.  47  ;  56  L.  T.  672  ;  34  W.  R.  580  ;  50 
J.  P.  407— Hanzien,  P. 

In  a  suit  for  divorce  on  the  wife's  petition  on 
the  grounds  of  adultery  and  cruelty,  the  hus- 
band caused  to  be  printed  and  published  about 
the  district  in  which  the  wife  and  her  family 
resided  a  notice  purporting  to  be  signed  by  him, 
offering  a  reward  of  25Z.  for  evidence  of  the 
confinement  of  a  young  married  woman  of  a 
female  child, "  probably  not  registered  "  :— Held, 
that  this  was  a  contempt  of  court  as  tending  to 
prejudice  the  petitioner,  and  discrediting  her  in 
the  assertion  ox  her  rights,  and  a  writ  of  attach- 
ment ordered  to  issue.  Pool  v.  Saeheverel  (IP. 
Wm.  675)  questioned.  Butler  v.  Butler,  13 
P.  D.  73  ;  57  L.  J.,  P.  42  ;  58  L.  T.  663— Butt,  J. 


ADVOWSON. 

See  ECCLESIASTICAL  LAW. 


AFFIDAVIT. 

Ndtnoa  hy.y-See  Evidence. 


Acoompanying  Bill  of  Sale.]— See  Bill  of 

SiLB  (REGISTRATION). 


AFFILIATION. 

See  BASTARDY. 


AGENT. 

See  PRINCIPAL  AND  AGENT. 


AGREEMENT. 

See  CONTRACT. 

Of  Guarantee.]— See  Principal  and  Surety. 

For  Leases.]— &*  Landlord  and  Tenant. 

For  Bale  of  Goods.]— See  Sale. 

Tor  Sale  of  Land.]— See  Vendoe  and  Pur- 
chaser, 


AIR. 


See  EASEMENT. 


ALDERMAN. 

See  CORPORATION. 


ALE    AND    BEER    HOUSE. 

See  INTOXICATING  LIQUORS. 


ALIMONY. 

See  HUSBAND  AND  WIFE. 


ALLOTMENT. 

See  COMMONS. 
Of  Shares.]— See  Company. 


15 


ANIMALS. 


16 


AMENDMENT* 

.See  PRACTICE. 


ANCIENT    LIGHTS. 

See  EASEMENT. 


ANIMALS. 

I.  Cbubltyto. 
II.  Contagious  Diseases. 
IIL  Bights  Am>  Liabilities  of  Owkeb. 


I.   CRUELTY  TO. 

Domestic  Animals— Decoy  Bird.] — Linnets 
caught,  kept  in  captivity,  and  trained  to  act  as 
decoy  birds,  for  the  purpose  of  catching  other 
birds,  were  treated  with  cruelty: — Held,  that 
they  were  "domestic  animals"  under  the  pro- 
tection of  12  &  13  Vict,  c,  92,  ss.  2  and  29,  as 
amended  by  17  &  18  Vict.  c.  60,  s.  3.  Colam  v. 
Pagett,  12  Q.  B.  D.  66  ;  53  L.  J.,  M.  C.  64  ;  32 
W.  B.  289  ;  48  J,  P.  263— D. 

Operation  for  Purpose  of  Improving  AnimaL] 

— A  person  who,  with  reasonable  care  and  skill, 
performs  on  an  animal  a  painful  operation,  which 
is  customary,  and  is  performed  bona  fide  for  the 
purpose  of  benefiting  the  owner  by  increasing 
the  value  of  the  animal,  is  not  guilty  of  the 
offence  of  cruelly  ill-treating,  abusing,  or 
torturing  the  animal,  within  the  meaning  of  12 
k  13  Vict  c.  92,  s.  2,  even  though  the  operation 
is  in  fact  unnecessary  and  useless.  Lewis  v. 
Ikrmor,  18  Q.  B.  D.  532 ;  56  L.  J.,  M.  C.  45 ; 
56  L.  T.  236  ;  35  W#  B.  378  ;  51  J.  P.  371  j  16 
Cox,  C.  C.  176— D. 

Dishorning  Cattle.} — Upon  a  summons 

against  the  respondent,  under  12  &  13  Vict.  c. 
92,  s.  2,  for  dishorning  cattle,  evidence  was  given 
that  the  operation  caused  very  great  pain  and 
suffering,  and  was  inflicted  for  greater  con- 
venience in  yard  feeding,  and  because  dishorned 
cattle  would  sell  for  about  21.  a  head  more  than 
those  with  horns.  The  magistrate  having 
referred  to  this  court  the  question  whether  the 
case  was  one  of  the  class  contemplated  by  the 
statute : — Held,  that  the  respondent  did  "cruelly 
ill-treat,  abuse,  and  torture  animals,  within  the 
meaning  of  12  &  13  Vict.  c.  92,  s.  2  ;  and  that 
the  act  could  not  be  justified  as  being  either 
necessary  or  reasonable  for  the  purposes  of 
general  convenience,  and  that  the  respondent 
ought  to  have  been  convicted.  Brady  v. 
MArgle,  14  L.  B.,  Ir.  174 ;  15  Cox,  C.  C.  516— 
Ex.D. 


The  practice  of  dishorning  cattle,  if  performed 
with  due  care  and  skill,  and  for  the  purpose  of 
rendering  them  more  profitable  to  farmers  in  the 
course  of  their  trade,  is  not  cruelty  to  the 
animals  within  the  12  &  13  Vict,  c  92,  a.  2. 
Brady  v.  JPArgle  (14  L.  R.,  Ir.  174)  not 
followed.  Callaglian  v.  Society  for  Prevention 
of  Cruelty  to  Animals,  16  Cox,  C.  C.  101  ;  16  L. 
R.,  Ir.  825— C.  P.  D. 

Evidence.]— F.  was  charged  with  causing  a 
sheep  to  be  tortured.  The  only  evidence  was 
that  he  conveyed  nine  sheep  in  a  waggon,  and  one 
of  them  broke  its  leg  on  getting  out  of  the 
waggon  ;  the  drover,  on  driving  them  to  a  pen 
at  the  market  for  sale,  put  the  sheep  with  the* 
broken  leg  along  with  the  othere,  and  they 
trampled  on  it : — Held,  though  the  facts  showed 
carelessness,  there  was  no  evidence  of  causing  the 
sheep  to  be  tortured.  Westbrook  v.  Field,  51  J. 
P.  726— D. 


II.  CONTAGIOUS  DISEASES. 

Movement  of  Animals  in  Infected  District 
Railway  Company.] — By  an  Order  in  Council  of 
the  23rd  February,  1883,  made  in  exercise  of  the 
powers   given  under  the  Contagious    Diseases 
(Animals)  Act,  1878,  41  k  42  Vict  c.  74,  it  was 
ordered  that  any  local  authority  in  England  or 
.Wales  might,  with  the  view  of  preventing  the 
introduction  of  foot  and  mouth   disease  into 
their  district,  make  regulations  for  prohibiting 
or  regulating  the  movement  by  land  or  water  of 
unimitla  into  their  district  from  the  district  of 
any  other  local  authority,  provided  that  any 
regulation  made  by  a  local  authority  under  the 
Order  shall  not  restrict  movement  of  animals  by 
railway  through   the    district    of   that   local 
authority ;  and  that  if  an  animal  is  moved  in 
contravention  of  the  Order,  or  of  a  regulation  of 
a  local  authority  thereunder,  the  owner  of  the 
animal,  and  the  person  for  the  time  being  in 
charge  of  the  animal,  and  the  person  causing, 
directing,  or  permitting  the  movement,  and  the 
person  or  company  moving  or  conveying  the 
animal,  shall  be  deemed  guilty  of  an  offence 
against  the  Act  of  1878.    The  local  authority  of 
the  county  of  Glamorgan  made  a  regulation  that 
'*  no  animal  may  be  moved  into  the  district  of 
the*lQcal  authority,"  except  that  fat  animals,  for 
immediate  slaughter,  might  be  moved  in  from 
districts  free  from  disease,  subject  to  the  follow- 
ing regulation :   ts  Before  any  movement  into 
the  county  district,  or  removal  from  the  railway 
truck  in  the  county  district,  takes  place,  the 
owner,  consignee,  or   person   in   charge  shall 
deliver  to  the  inspector  of  the  local  authority  a 
declaration  under  the  act.'*    W.  tendered   fat 
animals  to  the  Great  Western  Railway  Company, 
in  a  district  free  from  disease,  for  carriage  into 
the  Glamorganshire  district,  but  the  Great  West- 
ern Bail  way  Company  refused  to  carry  the  said 
cattle  unless  furnished  by  W.  with  a  "  declara- 
tion under  the  act."    In  an  action  by  W.  against 
the  Great  Western  Railway  Company  to  recover 
damages  and  expenses  incurred  by  him  through 
breach  of  duty  on  the  part  of  the  defendant 
company  : — Held,   that,    notwithstanding     the 
words  of  the  regulation  "or  before    removal 
from  the  railway  truck  in  the  county  district 
takes   place,"   the   defendant    company   were 
entitled  to  refuse  to  carry  the  said  cattle  with- 


17 


ANNUITY. 


18 


cut  a  declaration,  and  committed  no  breach  of 
doty  in  refusing  bo  to  do.  Williams  v.  Great 
Western  Railway,  52  L.  T.  250 ;  49  J.  P.  439 
— D. 

By  in  Order  of  Council  made  under  the  Con* 
tagioos  Diseases  (Animals)  Act,  1878,  if  an 
animal  is  moved  in  contravention  of  the  regula- 
tions of  any  local  authority,  the  person  "  causing, 
directing,  or  permitting"  the  movement  shall  be 
deemed  guilty  of  an  offence  against  the  act. 
The  local  authority  of  the  county  of  Dorset 
having  by  regulations  prohibited  the  movement 
of  animals  into  their  district  except  under  speci- 
fied conditions,  animals  were  consigned  to  a  place 
within  the  district,  with  through  bills  from  Cork 
▼UL  Bristol  and  a  specified  route.  The  appellants 
were  no  parties  to  the  contract  with  tne  con- 
signor, but  in  furtherance  of  the  scheme  of 
carriage  carried  the  animals  on  their  railway 
over  a  portion  of  the  route  to  a  point  outside  the 
county  of  Dorset,  whence  they  were  subsequently 
carried  into  that  county  by  another  company : — 
Held,  that  the  appellants  were  liable  to  be  con- 
victed of  an  offence  against  the  act  as  persons 
"causing,  directing,  or  permitting"  the  move- 
ment of  the  animate  within  the  meaning  of  the 
Order  of  Council ;  and  that  the  justices  of  the 
county  of  Dorset  had  jurisdiction  to  conviet. 
Midland  Railway  v.  Freeman,  12  Q.  B.  D;  629 ; 
53  L.  J.,  M.  C.  79  j  32  W.  R.  830 ;  48  J.  P. 

eso-D. 


to  Constable— Local  Venue.] — 
8cction  19  of  1  &  2  Will.  4,  c.  41,  by  which,  in 
all  actions  for  anything  done  in  pursuance  of 
that  act,  tine  venue  -is  -to  be  local,*  and  the 
defendant  is  to  receive  notice  of  action,  applies 
only  to  such  acts  as  a  constable  might  at  the 
date  of  the  statute  have  been  called  upon  to 
perform;  therefore  the  section  does  not  apply 
in  the  case  of  a  constable  acting  under  the 
Contagious  Diseases  (Animals)  Act,  1878.  Bry- 
w»  T.  JbuseU,  14  Q.  B.  D.  720 ;  54  L.  J.,  Q.  B. 
H4;  52  L.  T.  208 :  33  W.  B.  84:  49  J.  P.  293 
-C.A. 

Baoffctariiig  diseased  Animals — Compensa- 
tieo.]— By  the  42nd  section  of  the  Contagious 
Diseases  (Animals)  Act,  1878  (41  &  42  Vict.  c. 
74),  it  is  provided  that  every  local  authority 
ahall,  from  time  to  time,  appoint  so  many  in- 
spectors and  other  officers  as  they  think  necessary 
for  the  execution  and  enforcement  of  this  act, 
and  shall  assign  to  those  inspectors  and  officers 
each  duties  and  salaries  or  allowances,  and  may 
delegate  to  any  of  them  such  authorities  and 
discretion  as  to  the  local  authority  may  seem  fit, 
and  may  at  any  time  revoke  any  appointment  so 
nade.  The  local  authority  failed  to  appoint  an 
inspector,  and  disease  having  broken  out  amongst 
the  plaintiffs  cattle,  some  of  them  died.  The 
fecal  authority  did  not  slaughter  any  of  the 
plaintiffs  cattle,  nor  -  did  they  pay  him  any 
compensation: — Held,  that  the  plaintiff  could 
not  maintain  an  action  for  damages  nor  for  a 
peremptory  mandamus.  Mulcahy  v.  Kilmac- 
thsnas  Guardians,  18  L.  Bi,  Ir.  200— Q.  B.  D. 


UI.  BIGHTS   AND   LIABILITIES    OF 
OWNEB. 


Vict.  c.  71,  confers  upon  a  magistrate  power  to 
order  delivery  of  goods,  under  the  value  of  152., 
unlawfully  detained  within  the  limits  of  the 
Metropolitan  Police  District,  to  the  owner: — 
Held,  that  the  term  "goods "  includes  a  dog,  and 
that  a  magistrate  can  entertain  an  application 
for  delivery  up  of  a  dog  alleged  to  be  unlawfully 
detained.  Meg.  v.  Slade,  21  Q.  B.  D.  433 ;  57 
L.  J.,  M.  C.  120 ;  69  L.  T.  640  ;  37  W.  B.  141 ; 
52  J.  P.  599 ;  16  Cox,  C.  C.  496— D. 

Liability  of  Owner  for  Injuries.]— The  plaintiff 
was  engaged  in  digging  a  hole  in  a  garden  of  a 
house  adjoining  that  of  the  defendant  T.  .  The 
gardens  were  separated  from  one  another  and 
the  adjacent  gardens  by  low  walls.  A .  dog 
belonging  to  the  defendant  T.,  which  had  been 
taken  out  by  the  other  defendant  S.,  in  returning 
sprang  over  the  wall,  under  which  the  plaintiff 
was  working,  and  falling  into  the  hole  injured 
the  plaintiff: — Held,  that  as  the  dog  was  not 
shewn  to  be  mischievous  to  the  knowledge  of 
the  owner,  the  plaintiff  had  no  cause  of  action 
against  either  of  the  defendants,  either  for  tres- 
pass or  breach  of  duty,  Sanders  y.  Teape,  51 
L.  T.  263  ;  48  J.  P.  757— D. 

Evidence— Dog  Worrying  Sheep.  V-L.'s 

dog  was  seen  with  another  dog  on  a  Welsh 
mountain  worrying  two  lambs.  The  same  day 
the  shepherd  found  near  the  place  four  lambs 
dead,  and  next  day  ten  more.  L.  being  sum- 
moned for  damage  under  28  &  29  Vict.  c.  60  : — 
Held,  that  the  evidence  was  sufficient  to  justify 
the  justices  in  ordering  L.  to  pay  part  of  the 
value  of  the  whole  loss.  Lewis  v.  Jones,  49  J.  P. 
198— D.. 


Detention  of 
JtfUaFoIiet 


for  Delivery— Ketro- 
.] — Section  40  of  2  &  3 


ANNUITY, 

Under  Bent-charges.]— See  Rent-Chabgb. 

Under  Wills.]— See  Will. 

Valuation — Insufficient  Funds — Arrears.] — • 
By  a  separation  deed  provision  was  made  for 
the  payment  of  an  annuity  by  the  husband  to 
trustees  for  the  wife.  Upon  the  husband's  death 
children  of  the  marriage  claimed  to  be  entitled 
under  the  same  deed  to  a  large  amount  in  the 
funds  held  by  the  trustees;  such  funds  were, 
however,  insufficient  to  satisfy  their  claims  and 
also  to  answer  the  annuity,  besides  paying  off 
arrears.  Upon  an  originating  summons,  taken 
out  to  decide  (inter  alia)  the  mode  in  which  the 
available  funds  should  be  apportioned  between 
the  widow  and  the  children : — Held,  that,  for 
the  purpose  of  such  apportionment,  the  amount 
of  the  arrears  of  the  annuity  to  the  date  of  the 
hearing  of  the  summons  must  be  added  to  the 
value  of  the  annuity  at  the  same  date  ascertained 
according  to  the  table  of  values  of  Government 
annuities,  and  that  the  fund  must  be  divided 
in  the  proportion  borne  by  the  total  so  arrived 
at  to  the  full  amount  claimed  by  the  children. 
Delves  v.  Newington,  52  L.  T.  512 — Pearson,  J, 


19 


APPEAL— To  the  House  of  Lords. 


20 


APPEAL. 


L  To  the  House  of  Lords. 

II.  TO  THE  COUBT  OP  APPEAL. 

III.  To  the  Divisional  Coubt. 

IV,  From  the  Judge  is  Chambers. 
V,  From  Master  to  the  Judge* 

VI,  For  Costs,— See  Costs. 

VII,  Bankruptcy     Appeals.  —  See    Bank- 
ruptcy. 

VIII.  Admiralty  Appeals.— See  Shipping. 

IX.  Divorce  Appeals. — See  Husband  and 
Wipe. 

X.  To  Privy  Council.— See  Colony, 

XI.  From   County  Courts.  —  See  County 

Court. 

XII.  Bill     op    Review.  —  See     Practice 

(Jubisdiction). 

XIII,  Separation  Order  of  Justices.— See 

Husband  and  Wife, 

XIV.  Local     Government     Boabd.  —  See 

Health, 

I,     TO  THE  HOUSE  OF  LORDS, 

Time  for— Matrimonial  Cause.] — Since  the 
Judicature  Act  of  1881,  an  appeal  to  the  House 
of  Lords  in  a  matrimonial  cause  (where  an 
appeal  lies)  can  only  be  from  a  decision  of  the 
Court  of  Appeal ;  and  such  an  appeal  must  be 
brought  within  one  month  after  the  decision 
appealed  against  is  pronounced  by  the  Court  of 
Appeal,  if  the  House  of  Lords  is  then  sitting,  or 
if  not,  within  fourteen  days  after  the  House  of 
Lords  next  sits.  Cleaver  v.  Cleaver,  9  App.  Cas. 
631— H.  L.  (E.) 

Petition  not  Lodged  within  a  Year. J — 

The  House  of  Lords  refused  to  enlarge  the  time 
for  presenting  an  appeal  provided  by  Standing 
Order  No.  1,  which  is  to  the  effect  that  no 
petition  of  appeal  shall  be  received  unless  the 
same  be  lodged  within  one  year  from  the  date  of 
the  last  decree,  order,  judgment  or  interlocutor 
appealed  from.  Phillips  v.  Hom/ray,  11  App. 
Cas.  466— H.  L.  (E.). 


Stay  of  Proceedings  pending  Appeal — Special 
Grounds.]  —  Execution  for  costs  pending  an 
appeal  from  the  Court  of  Appeal  to  the  House 
of  Lords  will  not  be  stayed,  unless  evidence  be 
adduced  to  show  that  the  respondent  to  the 
appeal  will  be  unable  to  repay  the  amount 
levied  by  execution,  if  the  appellant  be  successful 
before  the  House  of  Lords.  Barkery.  Lavery, 
14  Q.  B.  D.  769  ;  64  L.  J.,  Q.  B.  241 ;  38  W.  R. 
770— C.  A. 

The  defendants  in  an  action  had  been  ordered 
by  the  Court  of  Appeal  to  produce  certain 
documents :  an  application  was  thereupon  made 


by  the  defendants  for  a  stay  of  the  order  pending 
their  appeal  to  the  House  of  Lords  ;  the  applica- 
tion was  granted  on  their  undertaking  to  present 
the  appeal  within  a  week  and  to  duly  prosecute 
it,  and  that  the  deeds  should  be  deposited  in 
court  upon  oath,  on  the  ground  that  if  the 
defendants  produced  their  deeds,  the  appeal 
would  be  useless.  JBmmereon  v.  Ind,  55  L.  J* 
Ch.  903  ;  55  L.  T.  422  ;  34  W.  R.  778— C.  A. 

The  practice  as  to  staying  execution  pending 
an  appeal  from  the  Court  of  Appeal  to  the 
House  of  Lords  in  actions  in  the  Queen's  Bench 
Division  of  the  High  Court  applies  to  Admiralty 
actions.  The  fact  that  bail  has  been  given  in  an 
Admiralty  action  in  rem  is  not  a  special  ground 
for  staying  execution  pending  an  appeal  from 
the  Court  of  Appeal  to  the  House  of  Lords, 
TJie  Annot  Lyle,  11  P.  D.  114  ;  55  L.  J.,  P.  62  ; 
55  L.  T.  576  ;  34  W.  B.  647  ;  6  Asp.  M.  C.  50-^ 
C.A. 

Application,  where  to  be  made.] — An 

application  for  a  stay  of  execution  pending  an 
appeal  to  the  House  of  Lords  from  the  Court 
of  Appeal  ought  in  all  cases  to  be  made  to 
the  Court  of  Appeal.  Uamill  v.  Lilleyt  19 
Q.  B.  D.  83  ;  56  L.  J.,  Q.  B.  337 ;  56  L.  T.  620  ; 
35  W,  B.  437— C.  A, 


Security  for  Costs  of  Foreign  Respondent.  ] 


— The  amount  paid  into  court  by  a  foreign  plain- 
tiff as  security  for  costs  will  not,  after  he  has 
succeeded  in  his  action,  be  ordered  to  remain 
in  court  pending  an  appeal  by  the  defendant, 
HamUl  v.  LUley,  56  L.  T.  620— C.A, 

Bankruptcy  of  Appellant— Effect  of.]— Where 
an  appeal  involves  a  question  of  the  appellant's 
status,  the  House  of  Lords  will  allow  it  to  be 
proceeded  with  notwithstanding  the  bankruptcy 
of  the  appellant,  G.  v.  M.t  10  App,  Cas.  171 — 
H.  L.  (Sc). 

Appeal  in  Fonni  Pauperis — Public  Bight — 
Subscriptions.] — Upon  a  petition  for  leave  to 
prosecute  an  appeal  in  forma  pauperis,  it  ap- 
peared that  the  petitioner  sought  as  one  of  the 
public  to  establish  a  right  of  fishing  in  a  tidal 
river  adjoining  land  belonging  to  the  defender, 
and  that  subscriptions  had  been  collected  to 
assist  the  petitioner  in  the  litigation: — Held, 
that  in  the  circumstances  the  application  could 
not  be  granted.  Bowie  v.  Ailta  (Marquit\ 
13  App.  Cas.  371 ;  58  L,  J.,  P.  C.  7 ;  60  L.  T. 
162— H.  L.  (Sc.) 

Findings  of  Court  of  Session — How  far  conclu- 
sive.]— The  House  of  Lords  is  bound  by  the  facts 
found  by  the  Court  of  Session,  and  cannot  look 
at  the  evidence  adduced  by  either  party  in  that 
court.  McLean  v.  Clydesdale  Banking  Co.,  9 
App.  Cas.  95— H.  L.  (Sc). 

Judicial  Notice  of  Law  of  any  part  of  the 
United  Kingdom.] — It  is  not  competent  for  the 
House  of  Lords  to  divest  themselves  of  their 
judicial  knowledge  of  the  law  of  any  part  of  the 
United  Kingdom,  though  the  point  may  arise  in 
an  appeal  from  another  part  of  the  United  King, 
dom,  and  may  not  have  been  argued  in  the  court 
below.  The  appellant,  a  domiciled  Irishwoman, 
being  an  infant  without  legal  guardian,  married 
in  Ireland,  before  the  passing  of  the  Infanta* 


SI 


APPEAL— To  the  Court  of  Appeal. 


22 


Settlement  Act  (18  &  19  Vict.  c.  43),  a  domiciled 
Scotchman.     An  ante-nuptial  settlement  was 
executed.    After  the  death  of  her  husband  she 
commenced  the  present  action  in  the  Scotch 
courts  to  set  aside  the  settlement.    No  evidence 
ww  given  as  to  the  capacity  of  an  infant  to  exe- 
cute a  binding  contract  by  the  law  of  Ireland  : 
—Held,  that  the  point  being   raised   in    the 
pleadings,  the  House  must  take  judicial  notice 
that  by  the  law  of  Ireland  the  settlement  was 
not  binding  on  the  appellant,  without  regard  to 
whether  any,  or  what,  evidence  of  the  law  of 
Ireland,  as  a  matter  of  fact,  had  been  given  in 
the  court  below  ;  and  further,  that  the  validity 
of  the  settlement  was  not  affected  by  the  fact 
that  at  the  time  of  its  execution  both  parties 
contemplated  a  Scottish  domicile  during  their 
married  life.     Cooper  v.  Cooper,  13  App.  Cas. 
88;  59 L.  T.  1— H.  L.  (8c.). 

Costs— Feint  not  raised  below.] — Where  an 
appeal  succeeds  upon  a  point  not  raised  in  the 
court  below,  the  appellant  will  not  get  costs. 

n. 

II.  TO  THE  COURT  OF  APPEAL. 

1.  Jurisdiction. 

2.  In  what  Case*  Appeal  lies. 

a.  Criminal  Cause  or  Matter. 

b.  In  Interpleader  Proceedings* 
r.  On  Cases  Stated. 

d.  In  other  Matters, 

3.  Parties  to  Appeal. 

4.  Time  within  which  Appeal  must  be  brought. 

a.  In  what  cases. 

b.  From  what  Period  Time  runs, 

e.  Extension  of  Time. 

5.  Notice  of  Appeal. 
S.  Security  for  Costs. 

7.  Staying  Proceedings  pending  Appeal, 

8.  Evidence  on  Appeal. 

9.  Hearing  of  the  Appeal. 
10.  Costs  of  the  Appeal, 

1.  JURISDICTION, 

To  Strike  Solicitor  off  Bolls  not  by  way  of 

AiptaL] — On  the  hearing  of  an  appeal  from  a 
decision  in  the  County  Palatine  Court,  the  at- 
tention of  the  Court  of  Appeal  was  called  to  the 
evidence  given  by  a  solicitor  in  the  court  below, 
from  which  it  appeared  that  he  had  been  guilty 
of  gross  misconduct  in  his  character  of  solicitor 
with  regard  to  a  mortgage  on  which  a  question 
arose  in  the  action.  The  Court  of  Appeal  directed 
the  official  solicitor  to  take  proceedings  against 
him.  The  official  solicitor  moved  the  court  for 
an  order  calling  on  the  solicitor  to  explain  his 
conduct  or  that  he  should  be  struck  off  the  rolL 
The  solicitor  took  no  notice  of  the  application  : 
—Held,  that  the  court  had  jurisdiction  to  enter- 
tain the  application ;  but,  having  regard  to  the 
circumstances  of  the  case,  and  that  the  solicitor 
had  not  taken  out  a  certificate  for  several  years, 
the  court  did  not  order  him  to  be  struck  off  the 
roll,  or  suspend  him,  but  granted  an  injunction 
restraining  him  from  renewing  his  certificate 
without  the  leave  of  the  court.  Whitehead,  In 
re,  »  Ch.  D.  614  ;  54  L.  J.,  Ch.  796  ;  52  L.  T. 
708 ;  33  W.  B.  601— C.  A. 


SoUaitara  of  suoeeesfal  Party  below 


to  repay  Costs  on  Bevortal  of  Judgment.] — An 
action  being  dismissed  at  the  hearing  with  costs, 
a  sum  of  money  which  had  been  paid  into  court 
as  security  for  the  defendants'  costs  was  ordered 
to  be  paid  out  to  the  solicitors  for  the  defendants 
in  part  payment  of  the  defendants'  costs.  The 
judgment  was  reversed  by  the  Court  of  Appeal, 
and  the  costs  ordered  to  be  paid  by  the  defen- 
dants. The  plaintiffs  asked  for  an  order  against 
the  defendants'  solicitors  for  repayment  by 
them  : — Held,  that  the  court  had  no  jurisdiction 
on  the  appeal  to  order  the  defendants'  solicitors 
to  refund  the  money,  the  solicitors  not  being 
present.  Nor,  semble,  could  such  an  order  have 
been  made  if  they  had  been  served  with  notice 
of  the  application.  Lydney  and  Wigpool  Iron 
Ore  Co.  v.  Bird,  33  Ch,  D.  85 ;  55  L  T,  558  ; 
34  W.  R.  749— C.  A. 

To  enter  Judgment  instead  of  ordering  Hew 
Mai.] — On  the  appeal  from  the  order  of  a 
divisional  court,  upon  an  application  for  a  new 
trial,  the  Court  of  Appeal  has  power,  under 
Ord.  LVIII.  r.  4,  if  all  the  facts  are  before  the 
court,  to  give  judgment  for  the  party  in  whose 
favour  the  verdict  ought  to  have  been  given, 
instead  of  directing  a  new  trial.  Millar  v. 
Toulmin,  17  Q.  B.  D.  603  ;  55  L.  J.,  Q.  B.  445  ; 
34  W.  R.  695— C.  A. 

Qusere,  whether  on  appeal  from  an  order 
of  a  divisional  court  upon  an  application  for  a 
new  trial  on  the  ground  of  the  verdict  being 
against  the  weight  of  evidence,  the  Court  of 
Appeal  has  power  to  give  judgment  for  the 
appellants  instead  of  directing  a  new  trial. 
Millar  v.  Toulmin  (17  Q.  B.  D.  603)  doubted. 
Toulmin  v.  Millar,  12  App.  Cas.  746  ;  67  L.  J., 
Q.  B.  301  ;  58  L.  T.  96.— H.  L.  (B.). 

Patent  —  Certificate  —  Particulars  of  Objec- 
tion.]— In  an  action  for  infringement  of  a 
Satent,  the  defendant  disputed  its  validity, 
elivered  particulars  of  objections,  stating  the 
grounds,  and  adduced  evidence  in  support 
thereof.  At  the  trial  judgment  was  given  in 
favour  of  the  plaintiff,  and  the  validity  of  the 
patent  was  upheld.  On  appeal  this  judgment 
was  reversed  and  the  patent  was  declared  in- 
valid. The  defendant,  the  successful  appellant, 
applied  to  the  Court  of  Appeal  for  a  certificate 
under  s.  29,  sub-s.  (6)  of  the  Patents  Act,  1883, 
that  the  particulars  of  objection  delivered  by 
him  were  reasonable  and  proper : — Held,  that 
the  Court  of  Appeal,  having  power  to  make 
such  order  as  ought  to  have  been  made  in  the 
first  instance,  had  power  to  grant — and  under 
the  circumstances  of  the  case,  would  grant — 
such  certificate.  Cole  v.  Saqui,  40  Ch.  D.  132  ; 
58  L.  J,  Ch.  237 ;  59  L.  T.  877  ;  37  W.  R.  109 
— C.A. 

2.  IN  WHAT  CASES  APPEAL  LIES. 

a*  Criminal  Cause  or  Matter. 

Property  obtained  by  False  Pretenoes — Power 
to  order  Restitution.]— By  24  &  25  Vict.  c.  96, 
s.  100,  if  any  person  guilty  (inter  alia)  of  obtain- 
ing any  property  by  false  pretences  is  convicted 
thereof,  in  such  case  the  property  shall  be  re- 
stored to  the  owner  or  his  representative,  and  in 
every  such  case  the  court  before  whom  any  such 
person  shall  be  tried  shall  have  power  to  order 
the  restitution  thereof  in  a  summary  manner. 


28 


APPEAL— To  the  Court  of  Appeal. 


24 


The  Queen's  Bench  Division  haying  discharged 
a  role  for  a  certiorari  to  remove  an  order  for 
restitution  made  under  the  above  section: — 
Held,  that  the  order  of  the  Queen's  Bench 
Division  was  a  judgment "  in  a  criminal  cause 
or  matter  "  within  s.  47  of  the  Judicature  Act, 
1873,  and  that  there  was  no  appeal  to  the  Court 
of  Appeal.  Beg.  v.  Central  Criminal  Court 
Justices,  18  Q.  B.  D.  314 ;  56  L.  J.,  M.  C.  25  ; 
56  L.  T.  352  ;  35  W.  R.  243 ;  51  J.  P.  229 ;  16 
Cox,  C.  C.  196— C.  A. 

Habeas  Corpus.] — An  order  of  the  Queen's 
Bench  Division,  refusing  to  grant  a  writ  of 
habeas  corpus  ad  subjiciendum  was  not  a  judg- 
ment in  a  criminal  cause  or  matter,  and  there- 
fore an  appeal  from  the  order  was  competent. 
Keller,  In  re,  22  L.  R.,  Ir.  168— C.  A. 


Extradition  Proceedings.]— The  Queen's 


Bench  Division  having  refused  an  application 
for  a  writ  of  habeas  corpus  made  on  behalf  of  a 
person  who  had  been  committed  to  prison  under 
s.  10  of  the  Extradition  Act,  1870,  as  a  fugitive 
criminal  accused  of  an  extradition  crime : — 
Held,  that  the  decision  of  the  Queen's  Bench 
Division  was  given  in  a  M  criminal  cause  or 
matter"  within  the  meaning  of  s.  47  of  the 
Judicature  Act,  1873,  and  therefore  that  no 
appeal  would  lie  to  the  Court  of  Appeal. 
Woodhall,  Ex  parte,  or  Woodall,  In  re,  20 
Q.  B.  D.  832 ;  57  L.  X,  M.  C.  71  ;  59  L.  T. 
$41 ;  36  W.  R.  655  ;  52  J.  P.  581— C.  A. 

Whether  the  Court  of  Appeal  has  any  juris- 
diction to  entertain  an  appeal  from  the  refusal 
of  a  divisional  court  to  issue  a  writ  of  habeas 
corpus,  on  the  application  of  a  person  who  has 
been  arrested  for  an  alleged  extradition  crime, 
quaere.  Beg.  v.  Weil,  9  Q.  B.  D.  701 ;  53  L.  J., 
M.  C.  74  ;  47  L.  T.  630 ;  31  W.  R.  60 ;  15  Cox, 
C.  C.  189— C.  A. 

Order  striking  Solicitor  off  the  Rolls.]— When 
the  High  Court  makes  an  order  ordering  a  solicitor 
to  be  struck  off  the  rolls  for  misconduct,  it  does 
so  in  exercise  of  a  disciplinary  jurisdiction  over 
its  own  officers,  and  not  of  a  jurisdiction  in  any 
criminal  cause  or  matter  within  the  meaning 
of  s.  47  of  the  Judicature  Act,  1873,  and  there- 
fore an  appeal  lies  from  such  order  to  the  Court 
of  Appeal.  Hardvoick,  In,  re,  12  Q.  B.  D.  148  ; 
53  L.  J.,  Q.  B.  64  ;  49  L.  T.  584  ;  32  W.  R.  191 
— C.A. 

Refusal  of  Justiees  to  state  Case.]— Under  the 
Judicature  Act,  1877,  there  is  no  appeal  to  the 
Court  of  Appeal  in  a  criminal  case,  except  for 
error  on  the  record.  B.  was  convicted  at  Petty 
Sessions  before  a  court  of  summary  jurisdiction, 
and  sentenced  to  one  month's  imprisonment. 
He  applied  to  the  magistrates  to  state  a  case 
for  the  opinion  of  the  court.  Upon  their 
refusal  to  do  so  he  applied  for  a  rule,  calling 
upon  the  justices  to  show  cause  why  such  case 
should  not  be  stated.  The  court  refused  to 
make  the  order,  and  B.  appealed  to  the  Court 
of  Appeal  : — Held,  that  the  refusal  of  the 
Queen's  Bench  Division  to  make  the  order 
applied  for  was  a  judgment  in  a  criminal 
cause  or  matter  within  the  meaning  of  section 
50  of  the  Act;  and  that  the  Court  of  Appeal 
had  no  jurisdiction  to  entertain  an  appeal  from 


such  refusal.    Brosnan,  Em  parte,  22  L.  R.,  Ir. 
334— C.  A. 


—Indictment.] — No  appeal  lies  to 
the  Court  of  Appeal  from  the  refusal  of  the 
Queen's  Bench  Division  to  grant  a  certiorari 
to  remove  an  indictment  to  the  Central 
Criminal  Court  under  19  &  20  Vict,  c  16. 
Reg.  v.  Budge,  16  Q.  B.  D.  459 ;  55  L.  J.,  M.  C. 
112  ;  53  L.  T.  851 ;  34  W.  R.  207  ;  50  J.  P.  766 
—C.A. 

Bail.] — A  prisoner  applied  for  bail  to  a 
divisional  court  of  the  Queen's  Bench  Division 
but  was  refused  ;  he  then  appealed  to  the  Court 
of  Appeal : — Held,  that  the  decision  of  the  divi- 
sional court  was  a  judgment  of  the  High  Court 
in  a  criminal  matter,  and  therefore  that  the 
Court  of  Appeal  had  no  jurisdiction  to  entertain 
the  appeal.  Beg.  v.'Foote,  10  Q.  B.  D.  378  ;  52 
L.  J.,  Q.  B.  628 ;  48L.T.394;  31  W.R.490;  48 
J.  P.  36  ;  15  Cox,  C.  C.  240— C.  A. 

Special  Case — Non-repair  of  Highway.] — See 
Loughborough  Highway  Board  v.  Curzon,  post, 
coL  26. 

Information  by  Attorney-General— Parlia- 
mentary Oaths  Act,  1866.] — Upon  the  trial  of  an 
information  at  the  suit  of  the  Attorney-General 
against  a  member  of  the  House  of  Commons  for 
voting  without  having  taken  the  oath  of  allegi- 
ance within  the  meaning  of  the  Parliamentary 
Oaths  Act,  1866,  as  amended  by  the  Promissory 
Oaths  Act,  1868,  judgment  was  given  for  the 
Crown,  and  the  Divisional  Court  refused  to  grant 
a  rule  for  a  new  trial,  on  the  ground  of  misdirec- 
tion and  misreception  of  evidence.  On  applica- 
tion by  the  defendant  to  the  Court  of  Appeal : — 
Held,  that  the  Court  of  Appeal  had  power  to 
hear  the  application  and  to  grant  a  new  trial  in 
such  a  case. — By  Brett,  M.R.,  and  Lindley,  L. J.f 
Cotton,  L.J.,  doubting,  an  information  at  the 
suit  of  the  Attorney -General  to  recover  penalties 
under  s.  5  of  the  Parliamentary  Oaths  Act,  1866, 
from  a  member  of  Parliament  for  voting  without 
having  taken  the  oath  of  allegiance  required  by 
that  statute,  as  amended  by  the  Promissory  Oaths 
Act,  1868,  is  not  a  "  criminal  cause  or  matter  " 
within  the  meaning  of  the  Supreme  Court  of 
Judicature  Act,  s.  47,  and  an  appeal  may  be 
brought  from  any  order  or  judgment  therein  of 
the  High  Court  to  the  Court  of  Appeal : — By 
Brett,  M.R.,  on  the  ground  that  the  information 
is  in  its  nature  a  civil  proceeding,  and,  therefore, 
that  an  appeal  lies  under  the  Supreme  Court  of 
Judicature  Act,  1873,  s.  19  : — By  Lindley,  L.J., 
on  the  ground  that  even  although  the  informa- 
tion may  be  to  some  extent  of  a  criminal  nature, 
nevertheless  before  the  passing  of  the  Supreme 
Court  of  Judicature  Acts,  1873, 1875,  an  appeal 
would  have  lain  under  the  Crown  Suits  Act, 
1865  (28  &  29  Vict.  c.  104),  ss.  31,  34,  35,  from  a 
decision  of  the  Court  of  Exchequer  to  the  Court 
of  Exchequer  Chamber,  and  that  the  Supreme 
Court  of  Judicature  Acts,  1873, 1875,  do  not  take 
away  any  right  of  appeal  existing  before  the 
passing  of  those  statutes.— Semble,  by  Brett, 
M.R.,  that  even  if  the  information  could  be  re- 
garded as  a  criminal  proceeding,  nevertheless  an 
appeal  would  lie,  for  by  the  Supreme  Court  of 
Judicature  Act,  1873,  s.  47,  the  right  of  appeal 
is  taken  away  only  in  the  case  of  indictments,  of 
criminal  informations  for  indictable  misde- 
meanors filed  in  the  Queen's  Bench  Division,  and 


as 


APPEAL— To  the  Court  of  Appeal 


26 


of  crimina  proceedings  before  justices.  At- 
tency- General  ▼.  Bradlaugh,  14  Q.  B.  D.  667  ; 
M  L.  JMQ.  B.  205  ;  62  L.  T.  589 ;  33  W.  R.  673 
— -C.  A. 

b.  In  Interpleader  Proceedings. 

Appeal  from  Judgment  and  Motion  for  Hew 
TriaL] — After  the  trial  of  an  interpleader  issue 
the  judge  before  whom  the  issue  was  tried  gave 
judgment  for  the  plaintiff  on  the  finding  of  the 
jury,  and  gave  the  defendant  leave  to  appeal : — 
Held,  that  the  defendant,  having  obtained  leave, 
was  entitled,  under  Ord.  LVII.  r.  11,  to  appeal 
against  the  judgment,  and  that,  by  Ord.  XL.  r.  5, 
the  appeal  ought  to  be  to  the  divisional  court, 
and  therefore  that  both  the  application  for  a 
new  trial  and  the  appeal  from  the  judgment 
ought  to  be  entertained  on  the  merits  by  the 
Court  of  Appeal  on  appeal  from  the  divisional 
court.  Robinson  v.  Tucker,  14  Q.  B.  D.  371 ; 
53  L.  J.,  Q.  B.  317  ;  50  L.  T,  380 ;  32  W.  B.  697 
— C.A. 

Appeal  from  Judgment  of  Judge  at  Trial.] 

— Where  it  is  sought  to  impeach  the  judgment 
of  a  judge  on  the  trial  of  an  interpleader  issue 
with  respect  only  to  the  finding  of  the  facts  or 
the  ruling  of  the  law,  and  not  with  respect  to 
the  final  disposal  of  the  whole  matter  of  the 
interpleader  proceedings,  an  appeal  will  lie  from 
such  judgment  under  s.  19  of  the  Judicature 
Act,  1873,  as  it  will  from  any  other  judgment 
or  order  of  a  judge.  Dawson  v.  Fox,  or  Fox  v. 
Smith,  14  Q.  B.  D.  377  :  54  L,  J.,  Q.  B.  299  ;  33 
W.  R,  514— C.  A. 


Decision.] — By  the  combined  opera- 
tion of  the  Common  Law  Procedure  Act,  I860, 
s.  17,  and  of  the  Appellate  Jurisdiction  Act, 
1876,  s.  20,  no  appeal  lies  to  the  Court  of  Appeal 
from  a  decision  of  the  Queen's  Bench  Division 
upon  an  appeal  from  the  summary  decision  at 
chambers  of  an  interpleader  summons,  and  Ord. 
LVII.  r.  11,  does  not  confer  any  power  to  give 
leave  to  appeal.  Waterhouse  v.  Gilbert,  15 
Q.  B.  D.  669  ;  54  L.  J.,  Q.  B.  440  ;  52  L.  T.  784 

—a  A. 

Under  Ord.  LVII.  r.  11,  no  appeal  lies,  unless 
by  special  leave,  from  the  divisional  court  to  the 
Court  of  Appeal,  in  respect  of  the  decision  of  an 
interpleader  summons  m  a  summary  way  under 
Ord.  LVIL  r.  8.  Waterhouse  v.  Gilbert  (15 
Q.  B.  D.  569),  followed.  Bryant  v.  Beading,  17 
Q.  B.  D.  128 ;  55  L.  J.,  Q.  B.  253  ;  54  L.  T.  524 ; 
34  W.  B.  496— C.  A. 

Appeal  by  Sherift]— When  the  court  or 

a  judge  decides  summarily,  under  88. 14  and  17 
of  the  Common  Law  Procedure  Act,  1860,  the 
sheriff  is  not  a  party  so  as  to  be  concluded  by  the 
decision,  but  may  appeal  therefrom.  Smith  v. 
Barlow,  26  Ch.  D.  605  ;  53  L.  J.,  Ch,  696 ;  50 
L.  T.  671 ;  32  W.  R.  665— C.  A, 

Proceedings  transferred  to  County  Court]— 
Interpleader  proceedings  were  transferred  under 
the  Judicature  Act,  1884,  s.  17,  from  the  Queen's 
Bench  Division  to  a  county  court.  On  appeal 
from  the  judgment  of  the  county  court  the 
Queen's  Bench  Division  affirmed  that  judgment, 
but  gave  leave  to  appeal  to  the  Court  of  Appeal : 
— Held,  that  the  Court  of  Appeal  had  jurisdic- 
tion under  the  Judicature  Act,  1873,  s.  45,  to 
hear  the  appeal,  that  jurisdiction  not  having 


been  taken  away  by  the  Appellate  Jurisdiction 
Act,  1876,  s.  20.  Crush  y.  Tamer  (3  Ex.  D.  303) 
approved.  Thomas  v.  Kelly.  13  App.  Cas.  506  ; 
68  L.  J.,  Q.  B.  66  ;  60  L.  T.  114  ;  37  W.  R.  353— 
H.  L.  (E.) 

o.  On  Caaes  Stated. 

Tinder  Highway  Aot— Quarter  Sessions.] — 
An  appeal  lies  without  leave  from  a  judgment  of 
the  Queen's  Bench  Division  on  a  special  case 
stated  by  quarter  sessions  pursuant  to  the  High- 
way Act,  1835,  s.  108,  as  the  Queen's  Bench 
Division,  in  giving  judgment  on  such  a  case, 
exercises  its  own  original  common  law  jurisdic- 
tion, and  not  any  new  statutory  appellate  jurisdic- 
tion. Illingworth  y.  Bulmer  East  Highway 
Board,  53  L.  J.,  M.  C.  60  ;  32  W.  B.  450— C,  A. 

Agreement— Judge's  Order— Poor-rate.]— An 

appeal  will  lie  to  the  Court  of  Appeal  from  the 
decision  of  the  Queen's  Bench  Division  upon  a 
case  stated  under  12  ft  13  Vict  c.  45,  s.  11,  in  an 
appeal  against  a  poor-rate ;  for  the  decision  of 
the  Queen's  Bench  Division  is  an  "order" 
within  the  meaning  of  the  Supreme  Court  o£ 
Judicature  Act,  1873,  s.  19.  Peterborough 
Corporation  v.  Wilsthorpe  Overseers,  12  Q.  B.  D. 
1  ;  63  L.  J.,  M.  C.  33  ;  60  L.  T,  189  ;  82  W.  R. 
458  ;  48  J.  P.  373— C.  A. 

Under  12  ft  13  Viet  o.  45,  s.  11.]— An  appeal 
lies  to  the  Court  of  Appeal  from  the  decision  of 
the  divisional  court  upon  a  case  stated  under 
12  ft  13  Vict.  c.  45,  s.  11,  on  an  appeal  from  an 
order  of  justices  to  the  quarter  sessions,  it  not 
being  a  decision  of  the  divisional  court  on  an 
appeal  from  petty  or  quarter  sessions  within  the 
meaning  of  8.  45  of  the  Judicature  Act,  1873, 
and  it  being  an  "order"  within  s.  19  of  that 
act.  Holborn  Union  v.  Chertsey  Union,  15 
Q.  B.  D.  76  ;  54  L.  J.,  M.  C.  137  ;  53  L.  T.  656  ; 
33  W.  R.  698  ;  60  J.  P.  36— C.  A. 

Bankruptcy— County  Court  Judge.]— An  ap. 
peal  will  lie  to  the  Court  of  Appeal  from  a 
decision  of  the  High  Court  on  special  case  stated 
by  a  county  court  judge  under  s.  97,  sub-s.  3- 
of  the  Bankruptcy  Act,  1883.  Dawes,  Ex  parte t 
Moon,  In  re,  17  Q.  B.  D.  275  ;  55  L,  T.  114  ;  84 
W.  B.  752  ;3M.B,  B.  105— C.  A, 

Under  Summary  Jurisdietion  Act,  1879,  s.  8ft 

—Highway.]— An  appeal  lies  to  the  Court  of 
Appeal  from  the  judgment  of  the  Queen's. 
Bench  Division  upon  a  special  case  stated  under 
s.  33  of  the  Summary  Jurisdiction  Act,  1879,  in 
proceedings  before  justices  for  the  non-repair  of 
a  highway,  the  judgment  not  being"  a  judgment 
in  any  criminal  cause  or  matter"  within  s.  47 
of  the  Judicature  Act,  1873.  Loughborough 
Highway  Board  v.  Curzon,  17  Q,  Bf  D.  344  ; 
65  L.  T.  50 ;  50  J.  P.  788— C.  A, 

By  Railway  Commissioners.]— There  is  no 
appeal  to  the  Court  of  Appeal  from  the  decision 
of  a  divisional  court  upon  a  case  stated  by  the 
Railway  Commissioners  under  s.  26  of  the  Re- 
gulation of  Railways  Act,  1873,  even  though 
leave  to  appeal  has  been  given.  Sect.  45  of  the 
Judicature  Act,  1873,  does  not  apply  to  appeals 
from  the  Railway  Commissioners.  Hall  v. 
London,  Brighton,  and  South  Coast  Railway, 
17  Q.  B.  D.  230 ;  65  L.  J.,  Q.  B.  328 ;  54  L.  T> 
713 ;  34  W.  B.  558  ;  5  Nev,  ft  Mac.  28—0.  A, 


27 


APPEAL—  To  the  Court  of  Appeal. 


28 


d.  In  other  Blatters. 


Trial  at  Bar.] — An  appeal  lies  to  the  Court  of 
Appeal  from  any  order  or  judgment  made  or 
given  by  the  Queen's  Bench  Division  either  daring 
or  afterwards  with  respect  to  a  trial  at  bar  of  a 
civil  proceeding,  and  whether  or  not  the  appeal 
is  brought  from  a  decision  upon  a  motion  for  a 
new  trial  on  the  ground  of  misdirection  or  wrong- 
ful reception  of  evidence ;  but  the  appeal  must 
be  brought  on  by  notice  of  motion,  an  ex  parte 
application  for  a  rule  nisi  to  the  Court  of  Appeal 
being  irregular.  Attorney-General  v.  Brad* 
laug\  ante,  col.  25. 

Judgment  by  Default] — The  Court  of  Appeal 
lias  jurisdiction  to  entertain  an  appeal  from  a 
judgment  given  on  default;  but  the  proper 
course  to  be  taken  by  the  party  against  whom 
such  judgment  has  been  given  is  for  him  to 
apply  in  the  first  instance  to  the  judge  who  gave 
the  judgment  to  restore  the  action.  Vint  v. 
Hudspctht29  Ch.  D.  322 ;  54  L.  J.,  Ch.  844  ;  52 
L.  T.  741  ;  33  W.  R.  738— C.  A. 

Municipal  Election  Petition— Leave  Given.  ] — 

Notwithstanding  s.  93,  sub-s.  7,  of  the  Municipal 
Corporations  Act,  1882,  which  enacts  that  the 
decision  of  the  High  Court  upon  a  petition 
questioning  municipal  election  shall  be  final ; 
nevertheless  an  appeal,  if  leave  be  given,  lies 
from  a  judgment  of  the  Queen's  Bench  Division 
upon  a  petition  of  that  nature  to  the  Court  of 
Appeal,  owing  to  s.  242  of  the  statute  above 
mentioned,  which  in  effect  incorporates  the 
Supreme  Court  of  Judicature  Act,  1881, 
s.  14,  whereby  in  certain  cases  an  appeal  is 
allowed  from  the  High  Court  of  Justice  to  the 
Court  of  Appeal,  if  special  leave  be  given.  Line 
v.  Warren,  14  Q.  B.  D.  648  ;  54  L.  J.,  Q.  B.  291  ; 
53  L.  T.  446— C.  A. 

Habeas  Corpus.] — Section  19  of  the  Judica- 
ture Act,  1873,  gives  an  appeal  from  orders  made 
by  the  High  Court  of  Justice  on  application  for 
habeas  corpus,  whether  the  order  grants  or 
.refuses  the  writ.  Cox,  Ex  parte,  20  Q.  B.  D.  1  ; 
57  L.  J.,  Q.  B.  98  ;  68  L.  T.  323  ;  36  W.  R.  209 
— C.A. 

Patent— Certificate  of  Validity.]— By  s.  31 
of  the  Patents,  Designs,  and  Trades  Marks  Act, 
1883,  in  an  action  for  infringement  of  a  patent, 
the  court  or  a  judge  may  certify  that  the  validity 
of  the  patent  came  in  question  : — Held,  that 
such  a  certificate  is  not  a  judgment  or  order 
against  which  an  appeal  lies  to  the  Court  of 
Appeal  under  s.  19  of  the  Judicature  Act,  1873. 
Haslam  Engineering  Company  v.  Hall,  20  Q.  B. 
D.  491  ;  57  L.  J.,  Q.  B.  352 ;  59  L.  T.  102 ;  36 
W.  R.  407— C.  A. 

Under  Debtors  Act.]— The  jurisdiction  of  the 
High  Court  under  s.  5  of  the  Debtors  Act,  1869, 
has  been,  by  virtue  of  s.  103  of  the  Bankruptcy 
Act,  1883,  and  orders  under  it  assigned  to  the 
judge  in  bankruptcy,  and  the  exercise  of  it  dele- 
gated to  the  bankruptcy  registrars.  An  appeal 
from  an  order  of  a  registrar,  approved  by  the 
judge  in  bankruptcy,  will  therefore  not  lie  to  the 
divisional  court,  but  will  be  regulated  by  s.  104 
of  the  Bankruptcy  Act.  Genese,  Ex  parte,  Las- 
sella*,  In  re,  63  L.  J.,  Q.  B.  578  ;  32  W.  R.  794  ; 
1  M.  B.  R.  183— D. 


Where  party  has  conformed  to  Order  of  Court 
below.] — A  plaintiff  signed  judgment  for  default 
of  delivery  of  defence  which  a  divisional  court 
set  aside  upon  the  defendant  paying  a  certain 
sum  into  court ;  the  defendant  appealed  after 
paying  into  the  court  the  money: — Held,  that 
by  paying  the  money  into  court  the  defendant 
had  not  so  availed  himself  of  the  order  of  the 
divisional  court  as  to  be  precluded  from  appeal- 
ing. Anlaby  v.  Prattorivs,  20  Q.  B.  D.  764  ;  57 
L.  J.,  Q.  B.  287  ;  58  L.  T.  671 ;  36  W.  R.  487— 
C.A. 

From  Discretion  of  Court  below.  1 — Although 
an  appeal  lies  from  the  exercise  of  discretion  by 
the  judge  in  the^ court  below,  yet  the  Court  of 
Appeal  will  only  interfere  (1)  when  the  judge 
has  decided  on  a  matter  not  within  his  discre- 
tion ;  (2)  when  his  assumed  discretion  has  been 
exercised  on  wrong  principles ;  (3)  when  some 
great  loss  will  be  occasioned  by  a  clearly 
erroneous  exercise  of  discretion.  Oriental  Bank 
Corporation,  In  re,  66  L.  T.  868— C.  A. 

when  a  winding-up  order  is  made  on  two 
petitions,  there  is  no  rule  which  absolutely  binds 
the  judge  making  the  order  to  give  the  carriage 
of  it  to  the  petitioner  who  presented  the  first 
petition.  He  has  a  discretion  as  to  which  of  the 
petitioners  shall  have  it.  An  order  made  in 
exercise  of  that  discretion  is  an  appealable  one, 
but  the  Court  of  Appeal  will  not  encourage  such 
appeals.  Canning Itam  <fc  Co,,  In  re,  53  L.  J.,  Ch. 
2*6  ;  50  L.  T.  246— C.  A. 

Winding  up  of  Building  Society.]  —  See 
Building  Society. 

3.  PARTIES  TO  APPEAL. 

In  forma  pauperis.] — Where  a  party  who  has 
not  sued  or  defended  as  a  pauper  in  the  court 
below,  applies  for  leave  to  appeal  in  formft 
pauperis,  the  court  will  follow  by  analogy 
Ord.  XVI.  rr.  22,  23,  and  24,  and  not  the  old 
practice  as  to  such  appeals.  A  married  woman 
suing  without  a  next  friend,  her  husband  not 
being  a  party,  applied  for  leave  to  appeal  in 
forma  pauperis: — Held,  that  her  husband  as 
well  as  herself  must  make  the  affidavit  required 
by  rule  22.  Roberts,  In  re,  Kiff  v.  Roberts 
(No.  2),  33  Ch.  D.  265 ;  35  W.  R.  176— C.  A. 

Liquidator — Removal  of.]— A  liquidator  who 
has  been  removed  by  a  judge  may  appeal  against 
his  removal.  Charle/noorth,  Ex  parte,  Adam. 
Eyton,  In  re,  36  Ch.  D.  299  ;  57  L.  J.,  Ch.  127  ; 
57  L.  T.  899  ;  36  W.  R.  275— C.  A. 

Executor— Residuary  Legatee.]— A  bill' had 
been  filed  against  executors  asking  for  certain 
inquiries  and  directions,  and  the  court  ultimately 
ordered  that  the  conduct  of  the  cause  should  be 
transferred  from  the  surviving  executor  to  the 
residuary  legatee,  that  service  of  all  notices  or 
proceedings  upon  the  executor  should  be  dis- 
pensed with,  and  directed  certain  inquiries, 
certain  other  inquiries  dependent  upon  them 
being  directed  to  stand  over.  Upon  answers 
being  returned  to  the  first-mentioned  inquiries  a 
further  inquiry  was  ordered.  Against  this  order 
the  residuary  legatee  appealed.  Upon  this 
appeal  the  court  refused  to  allow  counsel  for  the 
executor  to  be  heard.  Be  Mora  v.  Concha,  29 
Ch.  D.  268 ;  33  W.  R.  846— C.  A, 


29 


APPEAL— To  the  Court  of  Appeal. 


80 


Creditor's  Ao^miiiiitration  Action— -Appeal 

by  Penan  not  a  Party.] — D.,  the  residuary  legatee 
of  Mrs.  YM  brought  her  action  for  administration 
of  Mia.  Y.'s  estate  against  R.,  the  surviving 
executor.    Mrs.  Y.  had  been  the  surviving  exe- 
cutrix of  her  husband.    V.,  one  of  the  residuary 
legatees  of  the   husband,   shortly   afterwards 
brought  her  action  against  R.  as  sole  defendant, 
for  administration  of  the  husband's  estate,  alleg- 
ing breaches  of  trust  by  Mrs.  Y.,  and  asking 
administration  of  her  estate  if  R.,  as  her  repre- 
sentative, did  not  admit   assets  to  pay  what 
should  be  found  due  from  her  estate  to  the 
husband's  estate.    On  the  28th  February,  1885, 
V.  moved  for  judgment.    There  was  no  evidence 
before  the  court  that  Mrs.  Y.  was  indebted  to 
her  husband's  estate,  or  that  she  had  been  guilty 
of  wilful  neglect  and  default.   R.,  by  his  counsel, 
admitted  that  she  was  so  indebted,  and  he  sub- 
mitted to  a  judgment  directing  an  account  of 
personal  estate  of  the  husband  which  she  had 
received,  or  but  for  her  wilful  neglect  or  default 
might  have   received,  with  an  inquiry  as  to 
balances  in  her  hands,  and  directing  adminis- 
tiation  of  her  estate.    It  appeared  that,  from 
information  R.  had  received,  he  felt  sure  that 
Mrs.  Y.  would  be  found  a  debtor  to  her  husband's 
estate,  and  that  wilful  default  would  be  esta- 
blished against  her,  and  that  it  was  not  advisable 
to  incur  the  expense  of  contesting  these  points 
at  the  hearing.     D.,  on  the  26th  of  June,  1885, 
moved  before  Pearson,  J.,  under  Ord.  XVI.,  r.  40, 
to  discharge  or  vary  the  judgment  of  February, 
1885.    This  motion  was  refused  on  the  ground 
that  D.  had  not  been  served  with  the  judgment. 
D.  appealed  from  this  refusal,  and  also  applied 
for  leave  to  appeal  from  the  judgment : — Held, 
that  leave  cannot  be  given  to  a  residuary  legatee 
to  appeal  from  a  decree  made  against  the  exe- 
cutor at  the  suit  of  a  creditor,  as  the  executor 
completely  represents  the  estate  for  the  purposes 
<rf  such  a  suit,  and  the  residuary  legatee  could 
not  be  made  a  party  to  the  suit,  and  the  case  is 
quite  different  from  one  where  leave  to  appeal 
»  applied  for  by  a  person  who,  though  not 
according  to  the  present  practice  a  necessary 
parry  to  the  suit,  would  have  been  a  proper 
party  to  it.    Held,  further,  that  the  application 
<&  June,  1885,  to  vary  the  judgment  was  not 
supported  by  Ord.  XVI.,  r.  40,  the  case  not 
falling  within  that  rule,  which  only  applies  to 
cases  where  service  of  an  order  is  necessary  in 
oider  to  make  it  binding,  whereas  here  the  order 
was  binding  without  service,  and  D.  was  not  a 
proper  person  to  be  served.     Youngs,  In  re, 
Ifygett  v.  Rcvrtt,  Vellum  v.  Revet  t,  30  Ch.  D. 
421 ;  53  L.  T.  682  ;  33  W.  R.  880— C.  A. 

1  TIME  WITHIN  WHICH  APPEAL  MUST 
BE  BROUGHT. 

a.  In  what  Oases. 

Rial  or  Interlocutory — Case  stated.] — A 
judgment  given  by  the  Queen's  Bench  Division 
on  a  esse  stated  by  quarter  sessions  under  12  & 
13  Vict  c  45,  s,  11,  is  an  interlocutory  and  not 
a  final  order.  Peterborough  Corporation  v.  Wils- 
thorpe  Overseers,  12  Q.  B.  D.  1 ;  63  L.  J.,  M.  C. 
33;  GO L.  T.  189  ;  32  W.  R.  458 :  48  J.  P.  373— 
C.A. 

v— -  Order  In  Administration  Action.] — Al- 
though an  order  made  on  a  summons  by  a  ere* 


ditor  in  an  administration  action  is  considered 
as  interlocutory  for  the  purpose  of  determining 
the  time  within  which  an  appeal  must  be 
brought,  for  other  purposes  it  is  a  final  order, 
and  therefore  fresh  evidence  cannot  be  given  on 
the  appeal  without  the  special  leave  of  the  court. 
Compton,  In  re,  Norton  v.  Compton,  27  Ch.  D. 
392  ;  61  L.  T.  277  ;  33  W.  R.  160— C.  A, 


Interpleader  Issue.] — The  judgment  of 


the  divisional  court,  affirming  the  judgment  of 
a  county  court  judge  in  an  interpleader  issue 
transferred  to  the  county  court  under  s.  17 
of  the  Judicature  Act,  1884,  is  a  "  final  order  " 
within  Ord.  LVIII.  r.  3.  Hughes  v.  Little,  18 
Q.  B.  D.  32  ;  66  L.  J.,  Q.  B.  96  ;  55  L.  T.  476  ; 
35  W.  R.  36— C.  A. 


Review  of  Taxation.] — An  appeal  from 


an  order  directing  a  review  of  taxation  must  be 
brought  within  twenty-one  days.  Phillips,  Ex 
parte,  Watson,  In  re,  19  Q.  B.  D.  234  ;  56  L.  J., 
Q.  B.  619  ;  57  L.  T.  216— C.  A. 


Foreclosure  Judgment] — Under   Ord. 


LVIII.  r.  15,  an  order  in  the  ordinary  form  of  a 
foreclosure  judgment,  made  under  Ord.  XV.,  is, 
for  the  purpose  of  an  appeal  from  it,  to  be 
treated  as  a  final  order,  and  it  can  be  appealed 
from  at  any  time  within  a  year,  and  the  appeal 
can  be  heard  though,  since  the  notice  was  served, 
the  foreclosure  has  been  made  absolute.  Smith 
v.  Davies,  31  Ch.  D.  595  j  55  L.  J.,  Ch.  496  ;  54 
L.  T.  478— C.  A. 

Originating  Summons.]— An  originating  sum- 
mons taken  out  under  Ord.  XV.  r.  3,  is  a  civil 
proceeding  commenced  otherwise  than  by  writ 
in  manner  prescribed  by  a  rule  of  court,  and  is 
consequently  an  action  within  the  definition  of 
that  word  in  s.  100  of  the  Judicature  Act,  1873. 
Therefore  an  order  made  upon  such  a  summons 
is  appealable  at  any  time  within  one  year  from 
its  date.  Fawsitt,  In  re,  Oalland  v.  Burton,  30 
Ch.  D.  231  ;  54  L.  J.,  Ch.  1131  ;  55  L.  J.,  Ch.  568  ; 
53  L.  T.  271 ;  34  W.  R.  26— C.  A. 

An  originating  summons  under  Ord.  LV.  r.  3, 
is  an  action  within  the  meaning  of  the  Judica- 
ture Act,  1873,  s.  100,  and  therefore  it  is  not  a 
"matter  not  being  an  action"  within  Ord. 
LVIII.  r.  15.  An  appeal,  therefore,  can  be 
brought  from  an  order  made  on  such  a  summons 
within  a  year  from  the  date  of  the  order.  "Par- 
don's Trusts,  In  re,  55  L.  J.,  Ch.  259 — C.  A. 

Order  on  Further  Consideration  and  on  Sum- 
mons to  Vary  Certificate.] — Where  an  order  was 
made  on  further  consideration  and  another  order 
separate  in  form  was  made  the  same  day  dismiss- 
ing a  summons  to  vary  the  certificate  on  which 
the  order  on  further  consideration  was  made, 
and  the  two  orders  were  separately  drawn  up  on 
consecutive  days : — Held,  that  there  was  in  sub- 
stance only  one  order,  and  consequently  that 
Ord.  LVIII.  r.  15  (a),  applied,  and  that  the  time 
for  appealing  would  be  the  same  as  the  time  for 
appealing  against  the  order  on  further  considera- 
tion. The  object  of  that  rule  was  to  get  rid  of 
the  anomaly  of  having  two  different  periods  of 
time  for  appealing  where  a  summons  to  vary 
and  further  consideration  were  heard  together. 
Mar  stand  v.  Mole,  40  Ch.  D.  110 ;  59  L.  T.  593  ; 
37  W.  R..81-*aA. 


31 


APPEAL— To  the  Court  of  Appeal 


32 


Application  Partly  Borused  and  Partly 
Granted.] — On  appeal  by  the  plaintiff  from  an 
order  made  upon  an  application  to  unseal  certain 
books  and  documents  which  was  partly  refused 
and  partly  granted,  the  defendants  objected 
that,  though  the  appeal  was  brought  within 
twenty-one  days  of  the  drawing  up  of  the  order 
embodying  the  decision  appealed  from,  it  was 
not  within  twenty-one  dayB  from  the  date  of  the 
decision  itself,  and  therefore  the  appeal  was  out 
of  time: — Held,  that,  as  the  matters  decided 
were  not  clearly  severable,  the  objection  failed. 
Jones  v,  Andrews,  58  L.  T.  601— C.  A. 

b.  From  what  Period  Time  runs. 

Two  different  Periods.] — See  two  preceding 
cases. 

Refusal  of  Application— Special  Direction  as 
to  Costs.] — Where  an  application  to  a  judge  is 
refused,  and  the  judge  adds  special  directions  as 
to  the  payment  of  the  costs,  that  is  a  refusal  of 
the  application  within  the  meaning  of  Ord. 
LVIII.  r.  15,  and  the  time  for  appeal  runs  from 
the  date  of  the  refusal,  not  from  the  drawing-up 
of  the  order.  Smith,  In  re,  Hooper  v.  Smith,  26 
Ch.  D.  614  ;  53  L.  J.,  Ch.  1149 ;  33  W.  B.  18— 
C.A. 

Appeal  when  "Brought."] — At  the  trial  of 
an  action  on  the  23rd  of  June,  1884,  judgment  of 
nonsuit  was  given.  The  judgment  was  entered 
on  the  2nd  of  July,  1884.  The  plaintiffs  served 
a  notice  of  appeal  on  the  22nd  of  June,  1885  ; 
the  appeal  was  not  entered  till  the  4th  of  July, 
1885  :— Held,  that  the  appeal  was  w  brought " 
when  the  notice  of  appeal  was  served  on  the 
defendant,  and  that,  as  this  was  done  within  a 
year  from  the  pronouncing  of  the  judgment,  the 
appeal  was  in  time.  Christopher  v.  Croll,  16 
Q.  B.  D.  66  ;  55  L.  J.,  Q.  B.  78  ;  53  L,  T.  655  ; 
34  W.  R.  134— C.  A, 

ov   Extension  of  Time. 

Where  some  Parties  have  Appealed.] — Three 
of  six  directors  sold  their  shares  to  the  company 
and  received  the  price  out  of  the  funds  of  the 
company.  In  the  winding-up  of  the  company 
an  order  was  made  upon  the  six  directors  jointly 
and  severally  to  replace  these  sums,  with  liberty 
to  the  three  who  had  not  received  them  to  apply 
as  to  the  liability  of  those  who  had.  On  the 
last  day  for  appealing  the  three  who  had  received 
the  sums  appealed  from  the  order,  without  the 
knowledge  of  the  other  three  : — Held,  that  leave 
to  appeal  after  time  ought  to  be  given  to  the 
other  three.  Clayton  Mill*  Manufacturing 
Company,  In  re,  37  Ch.  D,  28  ;  57  L.  J.,  Ch. 
325  ;  58  L.  T.  317— C.  A. 

Doubts  as  to  Practice — Interlocutory  Order.] 
— On  an  appeal  from  the  refusal  by  the  registrar 
of  the  application  of  the  debtor  for  leave  to 
summon  a  fresh  first  meeting  of  his  creditors, 
the  objection  was  taken  that  the  appeal  was  out 
of  time.  The  appellant's  solicitor  deposed  that 
he  had  mistaken  the  effect  of  the  rules,  and  was 
of  opinion  that  the  time  for  appealing  ran  from 
the  date  of  the  perfecting  of  the  order,  instead 
of  the  date  when  it  was  pronounced  : — Held, 
that  the  order  appealed  from  was  in  the  nature 
of  an  interlocutory  order,  and  as  no  harm  could  | 


be  done  to  anyone,  the  time  would  now  be  ex- 
tended. Tippett,  Em  parte,  Tippet t,  In  re, 
2  M.  B.  R.  229— C.  A. 

Where  an  interlocutory  report  or  certificate 
from  chambers  has  been  made  up,  and  confirmed 
by  the  judge,  an  appeal  lies,  and  is  to  be  regu- 
lated by  the  general  order  dealing  with  interlo- 
cutory appeals ;  and  it  makes  no  difference  that 
the  confirmation  takes  the  form  of  a  refusal  of  a 
motion  to  vary  the  report  or  certificate,  and  that 
such  refusal  is  made  part  of  an  order  of  the 
court  or  judge,  which  also  contains  a  final  decree 
upon  further  consideration.  Leave  was  given  to 
appeal  after  the  proper  time,  where  there  was  a 
reasonable  doubt  as  to  the  practice  applicable. 
CTDonnell  v.  O'Donncll,  13  L.  R.,  Ir.  226— C.  A. 

Special  Grounds — Company — Order  on  Wind- 
ing-up Petition.] — The  shareholders  in  a  com- 
pany passed  an  extraordinary  resolution  to  wind 
up  the  company  voluntarily,  but  the  resolution 
was  void,  the  majority  of  members  who  voted 
not  being  entitled  to  vote.  A  creditor  filed  a 
petition  in  the  Chancery  Court  of  the  Duchy  of 
Lancaster  for  a  supervision  order,  or  for  a  com- 
pulsory winding-up  order,  and  as  the  court  and 
the  petitioner  were  ignorant  of  the  fact  that  the 
resolution  was  invalid,  a  supervision  order  was 
made.  Five  months  afterwards  the  petitioner 
discovered  the  invalidity  of  the  resolution,  and 
then  moved  before  the  Vice- Chancellor  that  the 
supervision  order  might  be  discharged,  and  a 
compulsory  winding-up  order  made.  This  motion 
having  been  refused  bv  the  Vice-Chancellor  on 
the  ground  of  want  of  jurisdiction  to  rehear  the 
petition,  the  petitioner  appealed  from  the  refusal 
of  the  motion,  and  also  applied  to  the  Court  of 
Appeal  for  leave  to  appeal  against  the  original 
order  notwithstanding  the  lapse  of  time.  The 
application  for  leave  to  appeal  was  opposed  by 
the  executors  of  a  previous  member,  who  had 
transferred  their  testator's  shares  to  escape  lia- 
bility less  than  twelve  months  before  the  pre- 
senting of  the  original  petition,  but  more  than 
twelve  months  before  the  case  came  before  the 
Court  of  Appeal,  on  the  ground  that  if  an  order 
were  now  made  on  the  original  petition  they 
would  be  made  liable  under  the  38th  section  of 
the  Companies  Act,  1862  : — Held,  that  leave  to 
appeal,  notwithstanding  the  lapse  of  time,  ought 
to  be  given,  the  mistake  as  to  the  validity  of  the 
resolution  forming  a  special  ground  for  the 
application,  and  the  respondents  having  no 
equity  to  resist  it.  Observations  on  the  prin- 
ciple on  which  the  court  grants  extension  of 
time  for  appeal.  New  Callao,  In  re  (22  Ch.  D. 
484),  approved.  Manchester  Economic  Building 
Society,  In  re,  24  Ch.  D.  488  ;  53  L.  J.,  Ch.  115  ; 
49  L.  T.  793  j  32  W.  R.  325— C.  A. 

Informal  Notice  given  within  Time.]— Within 
twenty-one  days  from  the  date  of  an  order 
allowing  a  creditor's  claim  in  an  administration 
action  the  defendant  gave  a  four  days'  notice  of 
appeal.  After  the  time  for  appealing  had  ex- 
pired the  respondent  wrote  to  say  that  the  notice 
was  bad,  as  it  ought  to  have  been  a  fourteen 
days'  notice.  The  appellant  thereupon  gave 
notice  of  motion  for  leave  to  amend  his  notice 
of  appeal  by  substituting  the  fourteen  days* 
period  for  that  of  four.  At  this  time  more  than 
fourteen  days  from  the  service  of  the  notice  of 
appeal  had  passed :— Held,  that  the  notice  of 
appeal  was  bad,  for  that  it  ought  to  have  been  a 


83 


APPEAL— To  the  Court  of  Appeal. 


34 


fourteen  days'  notice,  and  that  leave  to  amend 
it  in  the  way  proposed  ought  not  to  be  given 
after  the  fourteen  days,  bat  as  the  applicant  had 
given  a  distinct  notice  of  appeal  in  proper  time, 
the  time  for  appealing  ought  to  be  extended. 
Croslry  or  Crosby,  In  re,  Afunns  v.  Burn,  34 
Ch,  D.  664 ;  56  L.  J.,  Ch.  509  ;  56  L.  T.  103  ;  35 
W.  R.  294— C.  A. 


5.    NOTICE  OF  APPEAL. 

Length  of  Hotioe— Waiver.] — Where  a  sum- 
mons in  an  administration  action  was  heard  and 
determined  on  the  9th  June,  and  the  notice  of 
appeal  served  on  20th  June  : — Held,  upon  a  pre- 
liminary objection,  that  as  the  respondent  bad 
appeared  he  had  waived  the  irregularity  of  the 
notice.  MeBae,  In  re,  Fortter  v.  Davis,  25  Ch. 
D.  19  ;  32  W.  R.  304— C.  A. 

Service— On  former  Solioitor.] — By  order  on 
farther  consideration  the  defendant  was  ordered 
to  pay  money  into  court,  which  was  then  to  be 
carried  to  the  credit  of  an  action  for  adminis- 
tering the  estate  of  a  testator  whose  executrix 
was  the  plaintiff  in  the  present  action.  The 
defendant  went  abroad  without  complying  with 
the  order.  On  appeal  the  order  was  varied  by 
ordering  the  defendant  to  pay  the  money  to  the 
plaintiff,  who  was  then  to  pay  it  into  court  in 
the  administration  action,  such  an  order  being 
capable  of  being  better  enforced  against  the 
defendant's  property  than  the  order  as  originally 
framed.  The  notice  of  appeal  was  served  on 
the  defendant's  solicitors,  who  stated  that  they 
had  ceased  to  act  for  him,  but  they  were  still  his 
solicitor  on  the  record  : — Held,  that  as  the  order 
on  further  consideration  had  not  been  worked 
oat,  they  still  represented  him,  and  that  service 
of  the  notice  on  them  was  good  service. 
Whether  the  solicitors  on  the  record  do  not  con- 
tinue to  represent  their  client  until  the  ex- 
piration of  the  time  allowed  for  appealing, 
quaere.  De  la  Pole  v.  Dick,  29  Ch.  D.  351 ; 
54  L.  J.,  Ch.  940  ;  52  L.  T.  457  ;  33  W.  R.  585— 
C.A. 

Votiee  of  Motion— Day  in  Vacation.] — See 
Practice  (Motions). 

6.  SECURITY  FOR  COSTS. 

Time  when  Application  should  be  Made.] — 
Notice  of  appeal  from  dismissal  of  an  action  was 
served  by  the  plaintiff  on  the  1st  of  March.  On 
the  5th  of  June  a  defendant  gave  notice  of 
motion  for  security  for  costs,  supporting  it  by 
an  affidavit  that  on  the  1st  of  June  writs  of  n.  fa. 
for  costs  payable  to  him  by  the  appellant  had 
been  issued  to  which  the  sheriff  returned  nulla 
bona;  but  the  affidavit  did  not  state  that  the 
applicant  had  not  up  to  that  time  any  reasonable 
evidence  of  the  appellant's  insolvency.  The 
appellant's  briefs  had  been  delivered  and  the 
fees  paid  on  the  22nd  of  May,  and  on  the  10th 
of  June,  when  the  application  was  heard,  the 
appeal  was  only  two  out  of  the  paper : — Held, 
that  although  there  was  such  evidence  of  in- 
solvency that  an  order  for  security  would  have 
been  made  if  applied  for  in  due  time,  the  appli- 
cation must  be  refused  as  having  been  made  too 
late,  when  the  appellant  had  incurred  all  the 

costs  of  the  appeal,  though  it  might  even  then 


have  been  granted  if  the  applicant  had  shown 
that  until  the  return  of  nulla  bona  he  had  no 
reasonable  evidence  of  the  appellant's  insolvency. 
Poolers  Trustee  v.  Whetham  (No.  2),  33  Ch.  D. 
76  ;  56  L.  J.,  Ch.  41 ;  55  L.  T.  462— C.  A. 


Motion  and  Appeal  in  Paper  on  same 


Bay.] — Notice  of  appeal  from  an  interlocutory 
order  was  served  on  8th  of  February.  On  the 
10th  of  February  the  respondent  gave  notice  of 
motion  for  security  for  costs.  The  appeal  mo- 
tion and  the  motion  for  security  came  into  the 
paper  on  the  16th.  Poverty  was  sufficiently 
established,  and  it  was  also  sworn  to  and  not 
denied  that  the  person  really  promoting  the 
appeal  was  a  person  of  substance :— Held,  that 
security  ought  to  be  given.  Poolers  Trustee  v. 
Whetham  (33  Ch.  D.  76)  distinguished.  Clough, 
In  re,  Bradford  Commercial  Banking  Company 
v.  Cure,  35  Ch.  D.  7  ;  66  L.  J.,  Ch.  338  ;  56  L. 
T.  104  ;  35  W.  R.  353— C.  A. 

Order  for  security  for  costs  made  although  the 
appeal  was  in  that  day's  paper  for  hearing,  there 
haying  been  no  delay  in  making  the  application 
except  a  slight  delay  which  was  attributable  to 
the  appellant.  Ellis  v.  Stewart,  35  Ch.  D.  459  ; 
57  L.  T.  30— C.  A. 

In  what  Cases — Order  striking  Solicitor  off 
Roll.] — Whether  the  court  will  require  a  soli- 
citor who  is  insolvent  to  give  security  for  the 
costs  of  an  appeal  against  an  order  striking  him 
off  the  roll,  quaere.  But  where  such  an  order  is 
not  the  whole  order,  but  comprises  other  direc- 
tions, and  the  solicitor  appeals  against  the  whole 
order,  then  the  general  rule  applies,  and  if  in- 
solvent he  will  be  required  to  give  security. 
Strong,  In  re  (No.  2),  31  Ch.  D.  273  ;  55  L.  J.,  Ch. 
506  ;  54  L.  T.  219 ;  34  W.  R.  420-C.  A. 


Executor — Set-off] — In  an  administra- 


tion action  P.  was  found  to  be  heir-at-law.  K., 
who  claimed  to  be  heir,  appealed  against  this 
decision.  P.  then  died,  and  K.  revived  against 
H.,  his  executor  and  devisee  in  trust.  H.  ap- 
plied for  security  for  the  costs  of  the  appeal  on 
the  ground  of  K.s  proved  insolvency.  K.  re- 
sisted on  the  ground  that  P.  had  been  ordered  to 
pay  to  him  the  costs  of  a  previous  appeal,  which 
were  of  sufficient  amount  to  be  a  security : — 
Held,  that  if  P.  had  been  the  respondent  this 
would  have  been  a  sufficient  answer,  but  that 
H.  being  only  a  representative  was  entitled  to 
be  indemnified,  and  that  security  must  be  given. 
Knigld,  In  re,  Knight  v.  Gardner,  38  Ch.  D. 
108  ;  58  L.  T.  699— C.  A. 


Special  Circumstances.] — An  appellant 


may  be  ordered  to  give  security  for  the  costs  of  an 
appeal  where  a  prima  facie  case  of  abuse  of  the 
process  of  the  court  has  been  made  out.  Weldon 
v.  Maples,  20  Q.  B.  D.  331  ;  57  L.  J.,  Q.  B.  224  ; 
57  L.  T.  672  ;  86  W.  R.  154— C.  A. 


Inference  of  Insolvency.  ]  —  Where  a 


plaintiff  in  an  action  had  been  served  with  a 
bankruptcy  notice  by  the  defendant,  with  the 
terms  of  which  he  had  not  complied,  the  court 
inferred,  in  absence  of  evidence  to  the  contrary, 
that  he  was  insolvent,  and  directed  him  to 
give  security  for  the  costs  of  an  appeal.  Nixon 
v.  Sheldon,  50  L.  J..  Ch.  624  ;  60  L.  T.  245— 
C.A. 

C 


85 


APPEAL— To  the  Court  of  Appeal 


86 


Bankruptcy  of  Appellants — Bankrupts 

personally  interested  in  Action,] — An  injunction 
was  granted  restraining  the  defendants  from 
making  instruments  infringing  the  plaintiffs' 
patent  and  ordering  delivery  up  of  all  instru- 
ments so  constructed.  The  defendants  appealed 
from  this  decision  and  set  down  the  appeal  for 
hearing,  but  before  the  appeal  came  on  they 
became  bankrupt.  No  trustee  was  appointed, 
but  there  was  an  official  receiver.  The  plaintiffs 
moved  to  have  the  appeal  dismissed  for  want  of 
prosecution.  The  learned  judge  who  had  granted 
the  injunction  had  not  given  the  reasons  for  his 
judgment : — Held,  that  the  bankrupts  were  still 
interested,  as  the  injunction  restrained  them 
from  selling  a  particular  class  of  machines,  and 
they  might  be  sent  to  prison  for  a  breach  of  the 
injunction  ;  and  it  was  ordered  that,  unless 
within  fourteen  days  from  the  learned  judge 
giving  his  reasons  the  bankrupts  gave  security 
for  costs  or  the  official  receiver  made  himself  a 
party  to  the  proceedings,  the  appeal  should 
without  further  order  be  dismissed.  United 
Telephone  Company  v.  Bassano,  31  Ch.  D.  630 ; 
55  L.  J.,  Ch.  625  ;  64  L.  T.  479  ;  34  W.  R.  537— 
C.  A. 


New  Point  of  Law  raised.] — There  is  no 


general  rule  that  an  insolvent  appellant  will  be 
exempted  from  giving  security  for  the  costs  of 
the  appeal  because  the  case  involves  a  question 
of  law  which  has  not  been  previously  considered 
by  a  Court  of  Error.  Rourke  v.  Wliite  Moss 
Colliery  Company  (1  C.  P.  D.  656)  explained. 
Farrer  v.  Lacy,  28  Ch.  D.  482 ;  54  L.  J.,  Ch. 
808  ;  52  L.  T.  38  ;  33  W.  R.  265— C.  A. 

Order  not  complied  with — Dismissal  of  Appeal 
— Time.] — Where  an  order  has  been  made  for 
the  appellant  to  give  security  for  the  costs  of  an 
appeal,  if  he  does  not  give  it  within  a  reasonable 
time,  the  court  will  dismiss  the  appeal  without 
giving  further  time,  unless  there  are  extenuating 
circumstances.  As  a  general  rule  a  period  of 
three  months  is  more  than  a  reasonable  time. 
Washburn  and  Moen  Manufacturing  Company 
v.  Patterson,  29  Ch.  D.  48 ;  54  L.  J.,  Ch.  643  ; 
52  L.  T.  705  ;  33  W.  R.  403— C.  A. 

Increase  of  Deposit — Special  circumstances.] 
— Protracted  litigation  in  regard  to  the  same 
matter  held  a  ground  for  increasing  the  deposit 
to  secure  costs  on  appeal.  Mc  Henry,  In  re,  17 
Q.  B.  D.  351 ;  55  L.  J.,  Q.  B.  496  ;  35  W.  R.  20 
— C.  A. 

7.    STAYING  PROCEEDINGS  PENDING 

APPEAL. 

Jurisdiction  of  Master.] — A  master  has  juris- 
diction under  Ord.  LVIIl.  r.  16,  to  stay  execu- 
tion on  a  judgment  pending  an  appeal  to  the 
Court  of  Appeal.  Oppert  v.  Beaumont,  18  Q.  B. 
D.  435  ;  56  L.  J.,  Q.  B.  216 ;  35  W.  R.  266— 
C.  A. 

Refusal  by  Court  below— Time  for  Application 
to  Court  of  Appeal*] — In  an  action  by  patentees 
judgment  was  given  referring  it  to  the  official 
referee  to  assess  the  damages  occasioned  to  the 
plaintiffs  by  the  defendants1  infringement,  and 
ordering  payment  within  twenty-one  dayB  after 
service  of  the  report.  The  defendants  ap- 
pealed, and  set  down  their  appeal  on  the  18th 


of  April,  and  then  moved  to  stay  proceedings 
under  the  judgment  pending  the  appeal  This 
was  refused  by  Chitty,  J.  On  the  25th  of  June, 
the  official  referee  made  his  report,  and  on  the 
14th  of  July,  more  than  twenty-one  days  after 
the  above  refusal,  the  defendants  gave  notice  of 
motion  before  the  Court  of  Appeal  that  the  time 
for  payment  of  the  damages  might  be  extended 
till  after  the  hearing  of  the  appeal.  The  plain- 
tiffs took  the  objection  that  the  application  could 
not  be  made  as  an  original  motion,  and  as  an 
appeal  motion  was  out  of  time : — Held,  that 
Ord.  LVIIL  r.  16,  gives  concurrent  jurisdiction 
to  the  court  below  and  to  the  Court  of  Appeal 
as  to  staying  proceedings  pending  an  appeal ; 
that  rule  17  does  not  take  away  any  of  the  juris- 
diction thus  given  to  the  Court  of  Appeal,  but 
only  requires  that  it  shall  not  be  exercised  till 
an  application  has  first  been  made  to  the  court 
below,  and  that  the  application  to  the  Court  of 
Appeal  to  stay  proceedings  when  an  order  for 
that  purpose  has  been  refused  by  the  court 
below,  is  not  properly  an  appeal  motion,  and 
need  not  be  brought  within  twenty-one  days 
from  the  refusal.  Attorney- General  v.  Swansea 
Improvements  and  Tramways  Company  (9  Ch.  D. 
46)  considered.  Cropper  v.  Smith,  24  Ch.  D. 
305 ;  53  L.  J.,  Ch.  170 ;  49  L.  T.  648  ;  32  W.  R. 
212— C.  A. 

Payment  oat  of  Fund  in  Court — Terms.] — In 

the  absence  of  special  circumstances  it  is  not  the 
practice  of  the  court  to  retain  in  court  pending 
an  appeal  a  fund  which  has  been  ordered  to  be 
paid  out,  because  there  is  an  appeal  from  the 
order.  An  order  directing  the  payment  of  a 
fund  out  of  court  to  the  plaintiff  having  been 
made  just  before  the  commencement  of  the 
Long  Vacation,  and  an  appeal  having  been  pre- 
sented, a  suspension  of  the  payment  out  was 
granted  over  the  Long  Vacation,  in  order  to  enable 
the  appellant  to  apply  to  the  Court  of  Appeal. 
On  appeal,  it  being  shown  that  the  plaintiff 
had  been  abroad  for  two  years,  and  that  the 
applicant  could  not  discover  his  address,  it  was 
held  that  payment  out  ought  to  be  stayed  if  the 
applicant  would  give  security  to  pay  to  the  plain- 
tiff interest  at  4  per  cent,  on  the  present  value 
of  the  funds  in  court,  and  to  make  good  to  the 
plaintiff,  if  the  appeal  was  unsuccessful,  the 
difference  between  the  highest  market  price  of 
the  investments  at  any  time  before  the  hearing 
of  the  appeal  and  their  market  price  on  the  day 
of  the  hearing  of  the  appeal.  Bradford  v.  Young, 
Falconer's  Trusts,  In  re,  28  Ch.  D.  18  ;  54  K  J., 
Ch.  368  ;  61  L.  T.  550  ;  33  W.  R.  159— C.  A. 

Grounds  of   Application — Affidavit.] — The 

power  to  stay  execution  pending  an  appeal  is 
purely  discretionary,  and  may  be  exercised  in  a 
proper  case  though  the  application  is  not  made 
upon  affidavit.  Execution  was  stayed  pending 
an  appeal  by  a  railway  company,  defendants, 
from  an  order  refusing  a  new  trial,  on  the  terms 
of  their  lodging  in  court  the  amount  of  the 
verdict  and  a  sum  to  cover  costs,  although  the 
application  was  not  grounded  upon  affidavit 
stating  special  circumstances.  Barker  v.  Lavery 
(14  Q.  B.  D.  769)  distinguished.  McCarthy  v. 
Cork  Steam  Packet  Company,  16  L.  R.,  Ir.  164 — 
Ex.  D. 

Costs  of  Summons — Power  of  Court  below  to 
order  Sum  to  be  paid  out  of  Court.]— Where  a 


87 


APPEAL— To  the  Court  of  Appeal. 


88 


contributory  of  a  company  was  ordered  to  pay  a 
certain  snm  of  money  to  the  liquidator,  the  con- 
tributory took  out  a  summons  to  stay  execution 
pending  an  appeal,  and  stay  of  execution  was 
ordered  npon  the  terms  of  his  paying  the  money 
and  50?.  for  costs  into  court,  no  order  being 
made  as  to  the  costs  of  the  summons  to  stay. 
The  appeal  was  dismissed  with  costs,  but  no 
reference  was  made  as  to  the  costs  of  the  sum- 
mons to  stay,  and  the  taxing  master  disallowed 
the  costs  of  that  summons.    On  summons  to 
review  the  taxation : — Held,  that  the  contribu- 
tory was  ordered  to  pay  the  50Z.  into  court  to 
satisfy  such  costs  as  the  court  should  think  he 
ought  to  pay,  and  that  the  costs  of  the  summons 
to  stay,  being  caused  by  the  appeal,  must  be 
paid  oat  of  the  60/.  in  court,  ana  that  the  court 
had  jurisdiction  at  any  time  to  make  such  order. 
Brighton  Livery  Stable*  Company,  In  re,  52 
L  T.  745— V.-C.  B. 


8.    EVIDENCE  ON  APPEAL. 

Copy  of  Judge's  Votes  of  Evidenoe.l — When 
oral  evidence  taken  in  the  court  below  has  to  be 
considered  on  appeal,  it  is  the  duty  of  the  appel- 
lant to  apply  to  one  of  the  judges  of  the  Court 
of  Appeal  through  his  clerk  to  ask  the  judge 
before  whom  the  evidence  was  taken  to  send  to 
the  Court  of  Appeal  a  copy  of  the  judge's  notes, 
and  if  this  is  not  done  the  appeal  will  be  ordered 
to  stand  over  at  the  expense  of  the  appellant. 
EUinfton  v.  Clark,  38  Ch.  D.  332 ;  57  L.  J., 
Ch.  958 ;  58  L.  T.  818  ;  36  W.  R.  873— C.  A. 

flhorthand  Votes  of  Evidenoe.]— The  Court  of 
Appeal  will  not  allow  a  shorthand  note  of  evi- 
dence taken  by  a  clerk  of  one  of  the  solicitors  in 
the  action  to  be  referred  to.    lb. 

Froth  Evidence.] — An  appellant  applied  to 
the  court  for  leave  to  adduce  further  evidence, 
the  court  granted  the  application,  considering  it 
a  very  special  case,  but  not  in  any  way  departing 
from  the  rule  that  parties  ought  not  to  be  allowed 
to  bolster  up  their  case  by  adducing  fresh  evi- 
dence before  the  Court  of  Appeal.  The  costs  of 
the  motion  to  be  paid  by  the  appellant.  Evan* 
▼.  Benyon,  37  Ch.  D.  p.  345  ;  58  L.  T.  p.  704— 
C.A 

Leave  of  Court — Interlocutory  Order — 

Cross-examination.]  —  The  plaintiff  appealed 
from  the  refusal  of  a  judge  to  issue  a  writ  of 
sequestration  against  the  defendant  company 
for  an  alleged  breach  of  an  injunction  to  restrain 
the  infringement  of  the  plaintiff's  patent.  On 
the  appeal  coming  on  for  hearing  it  was  pro- 
posed to  read  certain  further  affidavits  which 
sad  been  filed  on  behalf  of  the  appellant  since 
the  order  was  made  in  the  court  below.  The 
defendant  company  had  been  duly  furnished 
with  copies  of  such  affidavits.  The  defendant 
company  objected  to  the  reception  of  the  fresh 
evidence,  as  leave  had  not  been  obtained  for 
that  purpose  from  the  court,  and  no  special 
grounds  had  been  shown  under  Order  LVIIL 
r.  4,  the  order  refusing  the  writ  being,  they 
contended,  a  final  order  as  to  the  matter  in 
dispute,  and  not  an  interlocutory  order ; — Held, 
that  the  order  appealed  from  was  an  interlocu- 
tory order  within  the  rule  referred  to ;  and  that, 
therefore,  the  appellant  had-*  right  to  adduce  [ 


fresh  evidence,  but  that  the  appeal  must  stand 
over  to  enable  the  respondents  to  answer  the 
further  affidavits ;  and  that,  after  the  affidavits 
on  both  sides  had  been  filed,  either  party  might 
cross-examine  the  deponents.  Spencer  v.  Ancoats 
Vale  Rubber  Company,  58  L.  T.  363— C.  A. 


Order  in   Administration   Action.]  — 


Although  an  order  made  on  a  summons  by  a 
creditor  in  an  administration  action  is  considered 
as  interlocutory  for  the  purpose  of  determining 
the  time  within  which  an  appeal  must  be  brought, 
for  other  purposes  it  is  a  final  order,  and  there- 
fore fresh  evidence  cannot  be  given  on  the  appeal 
without  the  special  leave  of  the  court.  Compton, 
In  re,  Norton  v.  Compton,  27  Ch.  D.  392  ;  51 
L.  T.  277 ;  33  W.  R.  160— C.  A. 


9.    HEARING  OF  THE  APPEAL. 

In  Camera — Jurisdiction  ]— When  the  public 
hearing  of  a  case  will  defeat  the  object  of  the 

Elaintiff  in  commencing  proceedings,  the  court 
as  jurisdiction  to  hear  the  case  in  private,  not- 
withstanding the  opposition  of  the  defendant. 
Mellor  v.  Thompson,  31  Ch.  D.  55 ;  55  L.  J., 
Ch.  942 ;  64  L.  T.  219— C.  A. 

Postponement  of  Hearing.] — An  application 
to  postpone  the  hearing  of  an  appeal  which  is  in 
the  general  list,  though  made  with  the  consent 
of  all  parties,  will  not  be  granted  as  a  matter  of 
course.  The  court  requires  some  sufficient  reason 
for  the  postponement  to  be  shown.  The  fact 
that  negotiations  with  a  view  to  settlement  of 
an  appeal  are  pending  is  a  sufficient  reason. 
BirdY.  Andrew,  36  W.  R.  1— C.  A. 

Ee-argument,  when  allowed.] — The  court  de- 
clined to  allow  a  case  to  be  re-argued  on  the 
ground  that  an  enactment  in  the  Conveyancing 
and  Law  of  Property  Act,  1881,  had  been  over- 
looked. Birmingham  Land  Company  v.  London 
and  North-Western  Railway,  34  Ch.  D.  261  ; 
56  L.  J.,  Ch.  966  ;  65  L.  T.  699 ;  35  W.  R.  173 
—C.A. 

Dismissal— Ex  parte.]— The  Court  of  Appeal 
will  not  make  an  order  dismissing  an  appeal 
with  costs  on  the  ex  parte  application  of  the 
appellant.  Ormerod  v.  Bleasdale,  54  L.  T.  343 
—C.A. 

Withdrawal  of  Appeal.]— Where  an  appeal 
has  once  been  set  down  it  cannot  be  withdrawn 
by  the  appellant  on  merely  procuring  the  written 
consent  thereto  of  the  respondent,  but  the  leave 
of  the  court  to  withdraw  the  appeal  must  be  ob- 
tained. West  Devon  Cheat  Consols  Mine,  In  re, 
38  Ch.  D.  51;  57  L.  J.,  Ch.  850;  58  L.  T.  61;  36 
W.  R.  342— C.  A. 

Bight  of  Respondent  to  continue  Cross- 
Appeal— Bight  of  Original  Appellant.]— When 
a  respondent  under  Ord.  LVIII.  r.  6,  has  given 
notice  that  he  will  on  the  hearing  of  an  appeal 
contend  that  the  decision  of  the  court  below 
should  be  varied,  and  the  appellant  subsequently 
withdraws  bis  appeal,  such  notice  entitles  the 
respondent  to  elect  whether  to  continue  or  with- 
draw his  cross-appeal.  If  he  continues  his  cross- 
appeal  the  appellant  has  the  right  to  give  a 
cross-notice  that  he  will  bring  forward  his  ori- 
el 2 


89 


APPEAL — To  the  Court  of  Appeal. 


40 


ginal  contention  on  the  hearing  of  the  respon- 
dent's appeal.  The  Beeswing,  10  P.  D.  18  ;  54 
L.  J.,  P.  7;  51  L.  T.  883;  33  W.  R.  319;  5  Asp. 
M.  C.  385—0.  A. 

Power  to  Amend  Order.] — See  Practice 
(Order  ). 

Amendment  of  Fotioe  of  Motion.] — A  defence 
delivered  after  the  expiration  of  the  time  limited 
by  the  rales  cannot  be  treated  as  a  nullity. 
Where,  therefore,  the  court,  treating  suoh  a  de- 
fence as  a  nullity,  had,  upon  a  motion  for  judg- 
ment in  default  of  delivering  a  defence  (Ord. 
XXIX.  r.  10,  Rules  of  1875),  given  a  judgment 
for  foreclosure,  the  Court  of  Appeal  held  the 
judgment  improperly  given.  But  as  the  defence 
substantially  admitted  the  plaintiffs  claim,  the 
Court  of  Appeal,  under  Ord.  L VIII.  r.  4  (Rules 
of  1883),  ordered  the  notice  of  motion  ^to  be 
amended,  and  the  notice  being  treated  as 
amended,  gave  judgment  for  the  plaintiff  upon 
admissions  in  the  defence.  Gill  v.  Woodfin,  25 
Ch.  D.  707;  53  L.  J.,  Ch.  617;  50  L.  T.  490 ;  32 
W.  R.  393— C.  A. 

Effect  of  equally  divided  Judgment.]— -The 
Court  of  Appeal  is  not  bound  by  a  decision  of 
its  own  where  that  decision  was  come  to  by 
reason  of  the  judges  who  heard  the  case  being 
equally  divided  in  opinion.  The  Vera  Cruz,  9 
P.  D.  96  ;  53  L.  J.,  P.  33  ;  51  L.  T.  104  ;  32  W.  R. 
783  ;  5  Asp.  M.  C.  270— O.  A. 

Reviewing  Findings  of  Pact  by  Judge  below.] 

— Where  the  testimony  of  a  witness  as  to  a 
material  fact  was  not  shaken  at  the  trial  on 
cross-examination,  and  was  believed  by  the 
judge  who  saw  and  heard  the  witness,  the  Court 
of  Appeal  will  not  differ  from  the  conclusion 
at  which  the  judge  arrived  at  as  to  the  nature 
of  that  evidence,  although  if  it  had  been  on 
affidavit,  the  court  might  not  have  treated  it  as 
satisfactory.  Smith  v.  Land  and  House  Pro- 
perty Corporation,  28  Ch.  D.  7 — C.  A. 

8.  P.  Cleather  v.  Tuoisden,  28  Ch.  D.  353; 
62  L.  T.  330— C.  A. 

On  the  evidence  before  the  Court  of  Appeal, 
one  of  the  judges  would  have  come  to  the  con- 
trary conclusion,  but  that  the  finding  of  the 
president,  who  had  seen  and  heard  the  witnesses, 
ought  not  to  be  reversed.  Wright  v.  Sanderson, 
Sanderson,  In  re,  9  P.  D.  149  ;  53  L.  J.,  P.  49  ; 
50  L.  T.  769  ;  32  W.  R.  560 ;  48  J.  P.  180— C.  A. 
Per  Cotton,  L.  J. 

Entering  Judgment  instead  of  Ordering  New 
Trial.]— See  ante,  col.  22. 


10.  COSTS  OF  THE  APPEAL. 

No  Note  of  Judgment  of  Court  below.]— A 
decision  on  the  construction  of  a  will  was  re- 
versed on  appeal,  but  the  court,  on  the  ground 
that  it  was  not  furnished  with  any  information 
as  to  the  reasons  given  by  the  judge  for  his 
decision,  refused  to  make  any  order  as  to  the 
costs  of  the  appeal.  McConnell,  In  re,  Saunders 
v.  McConnell,  29  Ch.  D.  76 ;  52  L.  T.  80 ;  33  W.  R. 
359— C.  A. 

Judgment  below  varied.]— Where  the  Court 
of  Appeal  varies  an  order  of  the  court  below 


upon  a  point  not  argued  in  that  court,  that  is 
not  enough  to  entitle  the  appellant  to  the  costs 
of  the  appeal.  Games  v.  JBonnor,  54  L.  J.,  Ch. 
617;  33  W.  R.  64— C.  A. 

Where  the  Court  of  Appeal  vary  a  judgment 
of  the  Admiralty  Division  that  one  of  two  vessels 
only  is  to  blame  for  a  collision  by  finding  both  to 
blame,  no  order  will  be  made  as  to  costs  either 
in  the  Court  of  Appeal  or  in  the  court  below,  but 
each  party  will  pay  his  own  costs  of  the  whole 
litigation.  The  Hector  (No.  1),  52  L.  J.,  P.  47; 
48  L.  T.  890 ;  5  Asp.  M.  C.  101— C.  A. 

• 

Payment  of,  out  of  Fund  in  Court] — Where 
a  fund  is  the  subject  of  an  action,  the  costs  of 
an  unsuccessful  appeal  ought  not,  except  on  rare 
occasions,  to  come  out  of  the  fund,  but  ought  to 
be  borne  by  the  unsuccessful  appellant.  Barlow, 
In  re,  Barton  v.  Spencer,  56  L.  J.,  Ch.  795 ;  57 
L.  T.  95  ;  85  W.  R.  737— C.  A. 

Several  Parties  Appearing  Separately.]  — 
Where  a  number  of  parties,  having  similar  in- 
terests, have  appeared  by  counsel  in  the  court 
below,  and  an  appeal  is  brought  by  one  of  them, 
all  parties  having  similar  interests  as  against  the 
appellant  should  join,  or  be  represented  by  one 
party  alone,  as  but  one  set  of  costs  will  be 
allowed  them  against  the  appellant  if  the  appeal 
is  dismissed.  Cernwall  v.  Saurin,  17  L.  R.,  Ir. 
595— C.  A. 

Copies  of  Documents  for  use  of  Court.]— The 
three  judges  in  the  Court  of  Appeal  should  each 
be  provided  with  a  copy  of  material  documents 
(such  as  a  copy  of  a  will,  the  construction  of 
which  is  in  question)  and  the  costs  of  the  three 
copies  should  be  allowed  by  the  taxing-masters. 
Randell,  In  re,  Hood  v.  Randell,  56  L.  T.  8— 
C.A. 

Shorthand  Notes — Judgment] — In  future,  the 
costs  of  appeal  will  include  the  costs  of  the 
shorthand  writer's  notes  of  the  judgment  appealed 
from,  unless  otherwise  specially  ordered.  Hum- 
phery  v.  Sumner,  55  L.  T.  649 — C.  A. 

It  is  unnecessary  for  a  successful  appellant  to 
make  special  application  for  allowance  of  the 
costs  of  the  shorthand  writer's  note  of  the  judg- 
ment of  the  court  below.  Morgan,  In  re,  Owe* 
v.  Morgan,  35  Ch.  D.  492— C.  A. 

Evidence— Trustees.] — An   action  was 

brought  by  a  beneficiary  under  a  will  against 
trustees,  and  was  dismissed  with  costs,  the 
defendants  being  allowed  their  "  costs,  charges, 
and  expenses."  The  taxing-master  then  dis- 
allowed the  costs  of  the  shorthand-writer's  notes 
of  the  evidence.  The  plaintiff  appealed,  and  at 
the  hearing  of  the  appeal  used  and  referred  to 
the  shorthand-writer's  notes.  The  trustees  also 
had  a  copy  of  the  notes,  but  were  not  called  on. 
Counsel  for  the  trustees  asked  for  the  costs  of  the 
notes,  but  the  lords  justices  refused  to  allow  them 
as  party  and  party  costs  against  the  appellant, 
but  added :  "It  may  be  these  costs  are  included 
in  costs,  charges,  and  expenses.  On  that  we  give 
no  opinion."  The  taxing-master  allowed  the 
costs  of  the  notes : — Held  that  the  disallowance 
of  the  costs  of  the  notes  by  the  taxing-master, 
when  taxing  the  costs  of  the  trial  of  the  action 
in  the  court  below,  did  not  affect  the  question  as 
to  their  allowance  in  taxing 'the  costs  of  the  ap- 
peal :— Held  f  urther,thatthe  use  of  the  notes  bythe 


41 


APPEAL— To  the  Divisional  Court. 


42 


appellant  at  the  hearing  of  the  appeal  was  con- 
efusTe  that  the  notes  were  required  on  the 
appeal,  and  that  the  taxing-master  was  right  in 
allowing  them.  Nation,  In  re,  Nation  v. 
HsMOton,  57  L.  T.  648— Kay,  J. 

Against  Solicitor  personally— Appellant  in 
ftna  pauperis.] — A  former  solicitor  of  the  plain- 
tiffin  an  action,  who  was  suing  in  forma  pauperis, 
serred  notice  of  appeal  on  all  the  defendants  who 
had  been  successful  in  the  court  below.  These 
respondents  appeared  by  counsel  on  the  hearing 
of  .the  appeal,  but  no  relief  was  then  asked  as 
against  one  of  them.  He  had  not  been  previously 
informed  that  the  appeal  would  not  be  pressed 
against  him,  and  had  incurred  expense  in  pre- 
paring to  resist  the  appeal : — Held,  that  it  was 
a  proper  case  for  giving  leave  to  the  respondent 
to  serve  the  solicitor  with  a  notice  of  motion  for 
an  order  to  show  cause  why  he  should  not  pay 
the  costs  incurred  by  serving  notice  of  appeal 
without  good  cause.  Martinson  v.  Clowes,  52 
L.  T.  706  ;  33  W.  R.  556— C.  A. 


DL    TO  THE  DIVISIONAL  COURT. 

Leave  to  appeal  to  Court  of  AppsaL] — That  the 
divisional  court  is  satisfied  that  its  own  judgment 
is  right,  is  not  a  valid  reason  for  not  giving  leave 
to  appeal  to  the  Court  of  Appeal.  Gilchrist,  Ex 
f*rU,  Armstrong,  In  re,  17  Q.  B.  D.  521 ;  55  L.  J., 
Q.  B.  578 ;  66  L.  T.  538— Per  Esher,  Ld.,  M.B. 

Sohoal  Board  Election  Petition— Appeal  from 
Csmaisaumer.] — The  High  Court  has  no  juris- 
diction to  entertain  an  appeal  against  the  decision 
of  a  commissioner  appointed  to  inquire  into 
alleged  corrupt  or  illegal  practices  at  a  school 
board  election,  except  on  points  of  law  reserved 
for  its  decision  by  way  of  a  case  stated  by  the 
commissioner,  Mnsbury  School  Board\Election, 
In  re,  Ay  res,  Ex  parte,  54  L.  T.  296— D. 

From  Quarter  Sessions.]—^  Justice  of 
the  Peace. 


Comity  Court.]— See  County  Coubt. 
In  Interpleader.]— &•«  Interpleader. 
From  Major's  Court.]— See  Mayor's  Court. 

IV.   FROM  THE  JUDGE  IV  CHAMBERS. 

To  Divisional  Court— Time  for— Vacation.]— 
An  order  was  made  by  the  vacation  judge  in 
chambers  on  11th  Sept.  and  on  1st  Oct.  the 
plaintiff  gave  notice  of  appeal  for  the  24th 
Oct :— Held,  that  Order  LIV.  rule  24.  and  Order 
LIL  rule  5,  applied,  and  that  the  plaintiff  should 
have  given  notice  of  appeal  within  five  days  from 
the  decision  appealed  against,  and  that  therefore 
the  notice  of  appeal  was  out  of  time.  Steedman 
v.  Jffakin,  59  L.  T.  607.— D.  Affirmed,  22  Q.  B. 
D.  16;  58  L.  J.,  Q.  B.  57  ;  37  W.  R.  208— C.  A. 

atetion  to  Discharge — Judge  in  Court — Counsel 
—Appeal] — When  an  order  has  been  made  by  a 
judge  in  chambers,  the  court  has  no  power  to 
alter  that  order  unless  upon  motion,  under  sect. 
3«  of  the  Judicature  Act,  1873,  to  discharge  the 
order.    Where  all  parties  concerned  have  been 


represented  by  counsel  in  chambers,  the  practice 
is  for  the  chief  clerk  to  give  a  certificate,  and 
upon  that  the  parties  may  go  direct  to  the  Court 
of  Appeal.  Attorney-  General  v.  Llewellyn,  68 
L.  T.  367.— Kay,  J. 

Where  an  order  had  been  made  in  chambers 
by  way  of  final  judgment  against  an  executor,  on 
motion  ex  parte,  on  behalf  of  the  executor,  for 
leave  to  appeal  direct  to  the  Court  of  Appeal  from 
such  order  : — Held,  that  the  court  would  not  give 
such  leave  unless  all  the  parties  were  represented 
by  counsel  in  chambers :  the  proper  course  is  to 
move  to  discharge  the  order.  Sonierville,  In  re, 
Dowries  v.  Somerville,  56  L.  T.  424 — Kay,  J. 


Time.] — In  an  administration  action  by 


next  of  kin  against  administratrix,  the  conduct 
of  which  had  been  given  to  a  creditor,  an  order 
was  made,  on  the  application  of  the  administra- 
trix, by  the  judge  in  chambers,  directing  the  taxa- 
tion of  the  costs  of  the  plaintiff,  the  defendant, 
and  the  creditor,  and  the  application  of  the  funds 
in  court  in  payment  of  a  debt  and  then  pro  tanto 
of  the  costs  when  taxed,  priority  being  given  to 
the  costs  of  the  defendant.  Liberty  was  also 
given  to  any  of  the  parties  to  apply  in  chambers 
as  to  the  getting  in  of  an  outstanding  asset,  and 
generally : — Held,  that  this  was  an  interlocutory 
order,  and  that  a  notice  of  motion  in  court  to 
vary  it,  given  after  the  expiration  of  twenty-one 
days,  was  too  late.  Lewis,  In  re,  Lewis  v. 
Williams,  31  Ch.  D.  623  ;  54  L.  T.  198  ;  34  W.  R. 
410— C.  A. 

Where  a  motion  was  made  to  discharge  an 
order  made  in  chambers  more  than  twenty-one 
days  after  such  order  had  been  pronounced,  the 
court  held  that  the  motion  was  made  too  late, 
and  refused  it  with  costs.  Hardwidge,  In  re, 
52  L.  T.  40— Kay,  J. 

Where  a  summons,  taken  out  on  the  25th 
March,  was  heard  on  the  30th  June,  when  the 
chief  clerk  made  no  order,  and  on  the  23rd  Oct. 
the  chief  clerk  refused  an  application  to  adjourn 
it  into  court  on  the  ground  of  lapse  of  time ;  on 
summons  on  the  29th  Oct.  for  the  opinion  of  the 
judge  upon  the  chief  clerk's  refusal  to  make  an 
order  upon  the  summons  of  the  25th  March  : — 
Held,  that  though  no  time  was  limited  for  an 
adjournment  into  court  by  sect.  50  of  the  Judi- 
cature Act,  1873,  the  court  would  not  hesitate 
to  act  by  analogy,  and  the  application  being  in 
the  nature  of  an  appeal  from  the  summons  of 
the  25th  March,  should  have  been  made  within 
twenty-one  days  from  the  hearing  of  that  sum- 
mons. Norwich  Equitable  Fire  Assurance  Com," 
pany,  In  re,  BrasnetVs  Case,  51  L.  T.  620  ;  33 
W.  K.  270— V.-C.  B. 


Fresh  Evidence.] — After  a  summons  has 


been  heard  by  the  judge  specially  in  chambers, 
and  he  has  given  his  decision  upon  it,  further 
evidence,  which  was  not  before  him  in  cham- 
bers, will  not  be  received  upon  motion  in  court 
to  discharge  the  order  made  in  chambers. 
Munns  and  Longden,  In  re,  50  L.  T.  536 — Kay,  J. 

Probate  Division— Special  Leave.] — The  prac- 
tice with  reference  to  appealing  from  orders  in 
chambers  in  the  Probate  Division  is  the  same  as 
that  which  is  followed  in  the  Chancery  Division 
— namely,  that  special  leave  must  be  obtained 
from  the  judge,  which  leave  is  signified  by  a 
certificate  from  the  judge  that  he  does  not  re- 


43 


APPORTIONMENT— APPRENTICE. 


44 


quire  to  hear  any  further  argument  in  the  case. 
Smith,  In  re,  Rigg  v.  Hughes,  9  P.  D.  68  ;  53 
L.  J.,  P.  62  ;  BO  L.  T.  293  ;  32  W.  B.  365— C.  A. 


V.  FBOX  MASTER  TO  THE  JUDGE. 

Interpleader — Summary  Decision — Leave.] — 

An  appeal  lies  to  a  judge  at  chambers  from  the 
summary  decision  by  a  master  disposing  of  the 
merits  of  the  claims  in  an  interpleader  where 
special  leave  to  appeal  has  been  given  by  such 
master.  Webb  v.  Shaw,  16  Q.  B.  D.  658 ;  55 
L.  J.,  Q.  B.  249  ;  54  L.  T.  216  ;  34  W.  B.415— D. 

Quaere  whether  an  appeal  does  not  lie  without 
leave  to  a  judge  at  chambers,  under  Ord.  LIV. 
r.  21,  from  every  order  or  decision  of  a  master  at 
chambers,  including  a  decision  in  an  interpleader 
proceeding  by  a  master  in  a  summary  way  under 
Ord.  LVII.  r.  8.  Bryant  v.  Reading,  17  Q.  B.  D. 
128  ;  55  L.  J.,  Q.  B.  253  ;  64  L.  T.  524  ;  34  W.  R. 
496—0.  A. 

Upon  the  true  construction  of  Ord.  LIV.  rr.  12 
and  21,  and  Ord.  LVII.  rr.  8  and  11,  an  appeal 
lies  from  a  summary  decision  of  a  master  in  an 
interpleader  proceeding  to  a  judge  at  chambers. 
Clench  v.  Booley,  56  L.  T.  122— D. 


APPOINTMENT,   POWER 

OP. 

Exercise  by  Will.]— See  Will. 

Under  Marriage  Settlements.]— See  Husband 
a»d  Wife. 

In  other  Cases.] — See  Settlement. 


APPORTIONMENT. 

Will  coming  into  Operation  before,  Death 
of  Tenant  for  Life  after,  Apportionment  Act, 
1870.]— A  testator  who  died  before  the  Ap- 
portionment Act,  1870,  came  into  operation, 
gave  the  income  of  his  residuary  estate,  which 
included  railway,  preference,  and  ordinary  stock, 
to  his  wife  for  life,  with  remainder  to  his 
nephews.  The  widow  claimed  under  the  old 
law  and  received  the  entire  .dividends  upon  the 
railway  stock  which  were  declared  and  became 
receivable  after  the  testator's  death.  On  the 
death  of  the  widow  the  residuary  legatees 
claimed  the  whole  of  the  railway  dividends  be- 
coming payable  after  the  death  of  the  widow  : — 
Held,  that  the  executors  of  the  widow  were 
entitled,  under  the  new  law,  to  an  apportioned 
part  of  the  dividends  up  to  her  death.  Lawrence 
v.  Lawrence,  26  Ch.  D.  795  ;  53  L.  J.,  Ch.  982  : 
60  L.  T.  715  ;  32  W.  B.  791— Pearson,  J. 

Dividends  on  Consols.]— A  testator,  who  died 
in  1878,  bequeathed  all  his  "moneys  due  on 
mortgage,  securities  for  money,  and  ready 
money,"  to  trustees  upon  trust  for  his  children. 


Part  of  the  testator's  property  consisted  of  the 
proportion  of  dividend  on  Consols  to  the  date  of 
the  testator's  death : — Held,  that  the  proportion 
of  dividend  on  the  Consols  did  not  pass,  as  the 
Apportionment  Act,  1870,  applied,  and  the  divi- 
dend must  therefore  be  apportioned  as  at  the 
date  of  the  testator's  death.  Beaten,  In  re, 
Beaven  v.  Beaxen,  53  L.  T.  245— Kay,  J. 

Sent.] — Bent  as  between  landlord  and  tenant 
is  apportionable  under  the  Apportionment  Act, 
1870.  Hartcup  v.  Bell,  1C.&E.  19— Manisty,  J. 


Eviction   between   Quarter   Days.]— A 


landlord  who  has  wrongfully  evicted  his  tenant 
between  two  quarter  days  is  not  entitled  to  the 
apportioned  rent  up  to  the  day  of  eviction  under 
the  Apportionment  Act,  1870.  Clapham  v. 
Draper,  1  C.  &  E.  484— Mathew,  J. 


Will   excusing   Sent   due   at  time  of 


Death.] — A  testator  directed  his  executors  "to 
forgive  to  my  tenant  all  rent  or  arrears  of  rent 
which  may  be  due  and  owing  from  him  at  the 
time  of  my  decease."  The  rent  was  due  at 
Lady-day  and  Michaelmas.  The  testator  died 
in  February  : — Held  (dissentiente  Fry,  L.J.), 
that  the  effect  of  the  clause  in  the  will  was  to 
forgive  to  the  tenant  the  rent  due  at  the  quarter- 
day  preceding  the  testator's  death,  and  that  the 
Apportionment  Act,  1870,  did  not  affect  the 
bequest  so  as  to  entitle  the  tenant  to  be  for- 
given the  rent  down  to  the  day  of  the  testator's 
death.  Lucas,  In  re,  Parish  v.  Hudson,  55  L.  J., 
Ch.  101  ;  64  L.  T.  30— C.  A. 


APPRENTICE. 

Infant — Validity  of  Indenture.] — By  an  ap- 
prenticeship deed  the  master  covenanted  to 
find  the  apprentice  fair  and  reasonable  work 
during  the  term,  and  pay  him  wages  at  a  certain 
rate  during  the  term.  The  apprentice  (an  in- 
fant) and  his  father  covenanted  that  the  master 
should  not  be  liable  to  pay  any  wages  to  the 
apprentice  so  long  as  his  business  should  be 
interrupted  by  any  turn  out,  and  the  apprentice 
was  expressly  authorized  by  the  deed,  during 
any  such  turn  out,  to  employ  himself  in  any 
other  manner  or  with  any  other  person  for  his 
own  benefit.  The  apprentice  absented  himself 
from  work,  and  the  master  applied,  under  38  & 
39  Vict.  c.  90,  for  an  order  to  compel  him  to 
return.  The  magistrate  refused  the  application : 
— Held,  that  the  magistrate  was  right,  as  the 
deed  was  invalid  and  incapable  of  being  en- 
forced against  the  infant,  by  reason  of  the 
clause  providing  for  the  cessation  of  wages, 
which  was  a  stipulation  necessarily  to  the  pre- 
judice of  the  infant.  The  proviso  entitling  the 
infant  to  earn  money  elsewhere  did  not  alter 
the  character  of  the  preceding  clause  so  as  to 
make  the  whole  deed  equitable  or  capable  of 
being  upheld.  Leslie  v.  FitzPatrick  (3  Q.  B.  D. 
229),  questioned.  Meakin  v.  Morris,  12  Q.  B.  D. 
352  ;  53  L.  J.,  M.  C.  72  ;  32  W.  B.  661 ;  48  J.  P. 
344— D. 


49 


ARBITRATION,  REFERENCE,  AND  AWARD. 


50 


no  sabnstiog  agreement  to  refer  capable  of  being 
carried  into  effect.  Deutsche  Spring nt  off  Ac tien 
GmUtehafl  r.  Briscoe,  20  Q.  B.  D.  177  ;  57  L.  J., 
Q.  K  4 ;  36  W.  B.  557— D.  See  Moyers  v.  Soady, 
supra,  and  cf.  Mitchell  and  Governor  of  Ceylon, 
In  re,  infra. 

d.  Revocation. 

laikruptcy.J — Bankruptcy  of  one  of  the 
parties  to  an  arbitration,  during  the  course  of 
the  arbitration,  and  before  the  making  of  the 
award,  does  not  operate  as  a  revocation  of  the 
submission.  Edward*,  Ex  parte,  Smith,  In  re, 
3  M.  B.  B.  179— D. 

Appointment  of  Arbitrator  by  one  Party.] — 
Where  there  is  an  agreement  to  refer  a  dispute 
to  two  arbitrators,  one  to  be  appointed  by  each 
party,  but  no  agreement  to  make  the  submission 
a  rale  of  court,  and  one  of  the  parties  having 
failed  to  appoint  an  arbitrator,  the  other  party, 
by  virtue  of  s.  13  of  the  Common  Law  Procedure 
Act,  1854,  appoints  his  arbitrator  to  act  as  sole 
arbitrator,  the  authority  of  such  arbitrator  may 
be  reToked  by  either  party  before  an  award  is 
made.  Frasrr  v.  Ehrensperger,  or  F rater,  In 
re,  12  Q.  B.  D.  310  ;  33  L.  J.,  Q.  B.  73  ;  49  L.  T. 
646;  32  W.  B.  240— C.  A. 

Iaeorporation  of  Common  Law  Procedure  Aot, 
1154.] — By  a  contract  in  writing  it  was  pro- 
Tided  that  disputes  between  the  contracting 
parties  should  be  referred  to  arbitration.  The 
contract  did  not  contain  an  express  stipulation 
that  the  submission  should  be  made  a  rule  of 
court  but  by  one  of  its  clauses  it  was  agreed  that 
the  provisions  of  the  Common  Law  Procedure 
Act,  1854,  with  regard  to  arbitration,  as  far  as 
they  were  applicable,  should  apply  to  the  arbi- 
tration therein  agreed  to.  A  dispute  arising  out 
of  the  contract  having  been  referred,  one  of  the 
parties  revoked  the  submission.  The  arbitrator 
proceeded  ex  parte,  and  made  his  award  : — 
Held,  that  the  submission  was  not  duly  revoked ; 
that  the  incorporation  in  the  submission  of  the 
Common  Law  Procedure  Act,  1854,  was  equiva- 
lent to  an  agreement  that  the  submission  should 
be  made  a  rule  of  court ;  and  that  the  case  was, 
therefore,  within  the  provisions  of  3  &  4  Will.  4, 
c  42,  s.  39,  and  the  submission  was  not  revocable 
without  the  leave  of  the  court.  MitcJiell  and 
Gntnor  of  Ceylon,  In  re,  21  Q.  B.  D.  408  ;  57 
L  J.,  Q.  B.  524  ;  69  L.  T.  812  ;  36  W.  B.  873— 
C.  A.    Cf.,  Deutsche,  etc.  v.  Briscoe,  supra. 

Kitako  of  Arbitrator  in  Law.]— The  court 
has  power  to  give  leave  to  revoke  a  submission 
to  arbitration  where  it  appears  that  the  arbi- 
trator is  going  wrong  in  point  of  law,  even  in 
a 'matter  within  his  jurisdiction.  East  and 
Wat  India  Dock  Company  v.  Kirh,  12  App. 
Caj.  738 ;  57  L.  J.,  Q.  B.  295 ;  58  L.  T.  158— 

e.  Broach  of  Agreement  to  Befer. 

Daaafts.] — In  an  action  for  damages  for 
breach  of  an  agreement  to  refer  disputes  to  arbi- 
tration, ihe  plaintiff  can  recover  only  nominal 
damages  if  he  would  not  have  been  entitled  to 
racceed  in  the  arbitration.  Brunsden  v.  Staines 
Ueal  Board,  1  C.  &  £.  272— Mathew,  J. 


f.  Condition  Precedent  to  Action. 


Fire  Insurance — Proviso  against  suing  before 
Arbitration.] — In  an  action  on  a  fire  policy  the 
defendant  pleaded  that  the  policy  was  made 
subject  to  a  condition  that,  if  any  difference 
should  arise  in  the  adjustment  of  a  loss,  the 
amount  to  be  paid  should  be  submitted  to  arbi- 
tration, and  the  insured  should  not  be  entitled  to 
commence  or  maintain  any  action  upon  the 
policy  until  the  amount  of  the  loss  should  have 
been  referred  and  determined  as  therein  pro- 
vided, and  then  only  for  the  amount  so  deter- 
mined, that  a  difference  had  arisen,  and  the 
amount  had  not  been  referred  or  determined : 
— Held,  that  the  determination  of  the  amount 
by  arbitration  was  a  condition  precedent  to  the 
right  to  recover  on  the  policy,  and  the  defence 
was  an  answer  to  the  action.  Collins  v.  Locke 
(4  App.  Cas.  674)  distinguished.  Viney  v.  Big- 
nold  or  Norwich  Union,  20  Q.  B.  D.  172  ;  57  L. 
J.,  Q.  B.  82  ;  58  L.  T.  26  ;  36  W.  R.  479— D. 

Burden  of  Proof  that  Reference  required.] — 
The  Railway  Passengers'  Assurance  Company's 
Act,  1864,  provides  by  s.  3  that  any  question 
arising  on  any  contract  of  insurance  shall,  if 
either  party  require  it,  be  referred  to  arbitration, 
and  by  s.  16  that  if  there  be  any  question  or 
difference  as  to  the  liability  of  the  company,  it 
shall,  if  either  the  company  or  the  persons 
claiming  require  it,  and  as  a  condition  precedent 
to  the  enforcing  of  any  claim  to  which  the  ques- 
tion or  difference  relates,  be  referred  to  arbitra- 
tion. S.  33  provides  that  if  any  policy-holder  or 
his  representatives  begin  any  action  against  the 
company  in  respect  of  the  matters  to  be  referred 
to  arbitration  under  the  provisions  of  the  act, 
the  court  or  a  judge,  on  application  by  the  com- 
pany after  appearance,  "upon  being  satisfied 
that  no  sufficient  reason  exists  why  the  matters 
cannot  be  or  ought  not  to  be  referred  to  arbi- 
tration, and  that  the  company  were,  at  the  time 
of  the  bringing  of  the  action  or  suit,  and  still 
are,  ready  and  willing  to  concur  in  all  acts 
necessary  and  proper  for  causing  the  matters  to 
be  decided  by  arbitration,"  may  make  an  order 
staying  all  proceedings  in  the  action  or  suit. 
The  representatives  of  a  policy-holder  in  the 
company  made  a  claim  against  the  company. 
The  company  disputed  it,  but  did  not  give 
notice  that  they  required  the  question  to  be 
referred  to  arbitration.  The  claimants  then 
brought  an  action,  whereupon  the  company  took 
out  a  summons  to  stay  proceedings  in  the  ac- 
tion : — Held,  that  the  provisions  of  ss.  3  and 
16  apply  to  cases  in  which  a  reference  to  arbi- 
tration is  required  before  an  action  is  begun; 
that  8.  33  applies  to  cases  in  which  an  action 
has  been  begun  before  a  reference  is  asked  for, 
and  that  in  such  cases  the  party  claiming  has  a 
right  to  bring  an  action,  and  that  it  must  then 
be  a  question  of  discretion  in  each  case  whether 
the  action  ought  or  ought  not  to  be  stayed. 
Hodgson  v.  Railway  Passengers''  Assurance 
Company  (9  Q.  B.  D.  188)  explained.  Fox  v. 
Railway  Passengers'  Assurance  Company,  54 
L.  J.,  Q.  B.  605  j  52  L.  T.  672— C.  A. 


g.  Powers  of  High  Court. 

To  appoint  Reoeiver,  and  stay  all   further 
Proceedings.]— Where  there  is  an  agreement  to 


47 


ARBITRATION,  REFERENCE,  AND  AWARD, 


48 


plans,  sections,  specifications,  descriptions,  or 
particulars,  or  to  any  money  to  be   paid  or 
retained,  or  to  any  act,  matter  or  thing  done,  or 
omitted  to  be  done,  by  either  of  the  parties 
hereto,  under  or  by  virtue  of  any  of  the  provi- 
soes, covenants  or  stipulations  of  these  presents, 
and  whether  such  difference  shall  relate  to  any 
act  done  by  the  Commissioners  for  the  purpose 
of  determining  this  contract  .  .  .  then,  ana  in 
any  such  case,  the  same  shall  be  referred  to  such 
arbitrator  as  the  Commissioners  shall  appoint, 
whose  decision  shall  be  based  upon  the  provisions 
of  these  articles,  and  shall  be  final,  binding  and 
conclusive  upon  the  parties  hereto."    The  plain- 
tiff alleged  that,  whilst  the  works  were  in  pro- 
gress the  Commissioners  directed  some  of  them 
to  be  suspended,  and  that  they  directed  addi- 
tional works,  not  provided  for  by  the  contract, 
to  be  executed ;  and  in  the  present  action,  he 
claimed;  (1)  11121.  10*.  damages  for  the  sus- 
pension;  (2)  36581.  8*.  (>d.  for  materials  and 
labour  in  the  additional  works  ;  (3)  5701. 10*.  2d. 
for  furniture  supplied  to  the  Commissioners  at 
their  request ;  and  (4)  661.  15*.  id.  interest  on 
these  sums.    After  notice  of  action,  the  Com- 
missioners, by   deed-poll,  also   signed   by  the 
plaintiff  (and  with  his  assent  so  testified),  referred 
the  plaintiffs  claim  for  54082.  (being  the  total  of 
the  said  sums)  to  the  arbitration  of  K.     The 
plaintiff,  before  any  award  was  made,  and  before 
the  submissions  in  the  original  contract  or  the 
last  mentioned  deed-poll  were  made  rules  of 
court,  revoked  the  authority  of  E.  as  arbitrator 
and  commenced   the   present   action   for   the 
moneys  claimed,  in  which  the  Commissioners 
undertook  to  appear  without  prejudice  to  any  of 
their  rights,  and  before   appearance   entered, 
they  applied  to  the  court  to  stay  the  action,  and 
for  a  compulsory  order  of  reference  to  K.  as 
arbitrator: — Held,  (1),  that  the  plaintiff  was 
entitled  to  revoke  the  appointment  of  K.  and 
had  effectively  done  so ;  (2)  that  item  No.  1  of 
the  claim  was  clearly  outside  the  submission  in 
the  building  contract ;  and  the  remaining  items 
not  being  satisfactorily  shown  to  be  within  the 
submission,  and  all  the  items  being  so  far  con- 
nected as  to  make  it  doubtful  whether  complete 
justice  would  be  done  to  the  parties,  unless  all 
were  disposed  of  by  the  same  tribunal,  the  court, 
in  the  exercise  of  its  discretion,  refused  the 
application.    Mayers  v.  Soady,  18  L.  R.,  Ir.  499 
— Ex.  D. 

Partnership  Artioles— Continuance  after  Ex- 
piration of  Term.] — A  partnership  was  continued 
after  the  expiration  of  the  term  specified  in  the 
articles  of  partnership.  The  articles  contained 
an  arbitration  clause,  providing,  in  effect,  that 
all  disputes  or  questions  respecting  the  partner- 
ship affairs,  or  the  construction  of  the  articles, 
should  be  referred  to  arbitration.  There  were 
also  clauses  providing  for  the  purchasing  by  the 
continuing  partners  of  the  share  of  a  deceased 
partner.  An  action  was  brought  by  the  executors 
of  a  deceased  partner  against  the  surviving 
partner  for  the  winding-up  of  the  partnership. 
The  defendant  moved  for  a  stay  of  proceedings 
and  a  reference  of  the  matters  in  difference 
between  the  parties  to  arbitration.  One  of  the 
questions  was,  whether  it  was  for  the  court  or 
for  the  arbitrators  to  determine  which  of  the 
clauses  in  the  articles,  and  in  particular  whether 
the  purchasing  clauses,  applied  to  the  partner- 
ship so  carried  on  after  the  expiration  of  the 


term :— Held,  that  it  was  for  the  arbitrators,  and 
not  for  the  court,  to  determine  which  of  the 
articles  applied ;  and  that  a  stay  of  proceedings 
must  be  directed,  and  a  reference  of  all  matters 
in  difference  to  arbitration.  Cope  v.  Cope,  52 
L.  T.  607— Kay,  J. 

b.  Makings  Submission  a  Rule  of  Court. 

Agreement  to  appoint  Valuers.! — An  agree- 
ment between  landlord  and  tenant  for  the  letting 
of  a  farm  provided,  that  the  tenant  should  be 
paid  at  the  expiration  of  the  tenancy  the  usual 
and  customary  valuation,  as  between  outgoing 
and  incoming  tenant,  in  the  same  manner  as  he 
paid  on  entering  the  premises.     And  it  was 
thereby  mutually  agreed  by  and  between  the 
parties  thereto,  that,  when  any  valuation  of  the 
covenants  should  be  made  between  the  tenant 
and  the  landlord,  or  his  incoming  tenant,  the 
persons  making  such  valuation  should  take  into 
consideration  the  state,  condition,  and  usage  of 
the  farm,  and,  if  not  left  in  a  proper  and  credit- 
able state,  should  determine  what  sum  of  money 
should  be  paid  to  the  landlord  as  compensation 
therefor,  and  should  deduct  such  sum  from  the 
amount  of  the  valuation.    On  the  expiration  of 
the  tenancy,  there  being  no  incoming  tenant, 
the  landlord  and  tenant  respectively  appointed 
a  valuer.    The  valuers  could  not  agree  upon  the 
amount  of  the  valuation,  and  they  appointed  an 
umpire,  who  held  a  sitting  and  heard  witnesses, 
and   then  made  and  published  an    award  in 
writing.    The  tenant,  with  the  view  of  obtaining 
an  order  remitting  the  matters  in  dispute  to  the 
umpire  for  reconsideration,  applied  for  an  order 
to  make  the  submission  to  arbitration  contained 
in  the  agreement,  together  with  the  appointment 
of  arbitrators  and  umpire,  a  rule  of  court,  under 
s.  17  of  the  Common  Law  Procedure  Act,  1854 : 
— Held,  that  the  agreement  did  not  contain  any 
submission  to  arbitration,  but  that  it  provided 
only  for  the  appointment  of  valuers,  and  that  it 
could  not,  therefore,  be  made  a  rule  of  court 
Hopper,  In  re  (2  L.  R.,  Q.  B.  867),  explained  and 
distinguished.    Bawdy,  In  re,  15  Q.  B.  D.  426 ; 
54  L.  J.,  Q.  B.  574  ;  53  L.  T.  800— C.  A. 


c.  Staying  Proceedings. 
In  what  Cases.]— See  Cope  v.  Cope,  supra. 


General  Agreement  to  refer  future 
Submission   to   particular  Arbitrators.]  —  An 

arbitration  clause  in  an  agreement  between  the 
plaintiffs  and  the  defendant  provided  that,  if  any 
dispute  should  arise  between  the  parties  touching 
that  agreement,  the  dispute  should  be  referred  to 
two  named  arbitrators,  or  their  umpire,  the  pro- 
visions of  the  Common  Law  Procedure  Act, 
1854,  to  apply  to  the  reference.  A  dispute 
having  arisen  in  respect  of  moneys  alleged  to 
have  become  due  and  payable  from  the  defen- 
dant to  the  plaintiffs  under  the  agreement,  the 
defendant  gave  notice  to  proceed  to  arbitration. 
The  plaintiffs  thereupon  brought  an  action  for 
the  moneys  and  revoked  their  submission  to  the 
arbitrators  : — Held,  that  the  defendant  was  not 
entitled  to  have  the  proceedings  in  the  action 
stayed  under  s.  11  of  the  Common  Law  Pro- 
cedure Act,  1854,  because  after  the  plaintiffs' 
revocation  of  the  submission,  there  was,  in  re- 
spect of  the  particular  dispute  which  had  arisen, 


49 


ARBITRATION,  REFERENCE,  AND  AWARD. 


50 


nosobsstiog  agreement  to  refer  capable  of  being 
carried  into  effect,  Deutsche  Springstoff  Actien 
GeseUsckafl  v.  Briscoe,  20  Q.  B.  D.  177  ;  57  L.  J., 
Q.  R.  4  ;  36  W.  B.  557— D.  See  Mayers  v.  Soady , 
supra,  and  cf.  Mitchell  and  Governor  of  Ceylon, 
I*  re,  infra. 

d.  Revocation. 

Bankruptcy.  J — Bankruptcy  of  one  of  the 
parties  to  an  arbitration,  daring  the  course  of 
the  arbitration,  and  before  the  making  of  the 
award,  does  not  operate  as  a  revocation  of  the 
submission.  Edward*,  Ex  parte,  Smith,  In  re, 
3  M.  B.  B.  179— D. 

Appointment  of  Arbitrator  by  one  Party.] — 
Where  there  is  an  agreement  to  refer  a  dispute 
to  two  arbitrators,  one  to  be  appointed  by  each 
party,  but  no  agreement  to  make  the  submission 
a  role  of  court,  and  one  of  the  parties  having 
Med  to  appoint  an  arbitrator,  the  other  party, 
by  virtue  of  s.  13  of  the  Common  Law  Procedure 
Act,  1854,  appoints  his  arbitrator  to  act  as  sole 
arbitrator,  the  authority  of  such  arbitrator  may 
be  revoked  by  either  party  before  an  award  is 
made.  Eraser  v.  Ehrensperger,  or  Eraser,  In 
w,  12  Q.  B.  D.  310  ;  33  L.  J.,  Q.  B.  73  ;  49  L.  T. 
M ;  32  W.  R.  240— C.  A. 

Incorporation  of  Common  Law  Procedure  Aet, 
ISM.] — By  a  contract  in  writing  it  was  pro- 
vided that  disputes  between  the  contracting 
parties  should  be  referred  to  arbitration.  The 
contract  did  not  contain  an  express  stipulation 
that  the  submission  6hould  be  made  a  rule  of 
court,  but  by  one  of  its  clauses  it  was  agreed  that 
the  provisions  of  the  Common  Law  Procedure 
Act,  1854,  with  regard  to  arbitration,  as  far  as 
they  were  applicable,  should  apply  to  the  arbi- 
tration therein  agreed  to.  A  dispute  arising  out 
of  the  contract  having  been  referred,  one  of  the 
parties  revoked  the  submission.  The  arbitrator 
proceeded  ex  parte,  and  made  his  award  : — 
Held,  that  the  submission  was  not  duly  revoked ; 
that  the  incorporation  in  the  submission  of  the 
Common  Law  Procedure  Act,  1854,  was  equiva- 
lent to  an  agreement  that  the  submission  should 
be  made  a  rule  of  court ;  and  that  the  case  was, 
therefore,  within  the  provisions  of  3  &  4  Will.  4, 
c  42,  a.  39,  and  the  submission  was  not  revocable 
without  the  leave  of  the  court.  Mitchell  and 
Governor  of  Ceylon,  In  re,  21  Q.  B.  D.  408  ;  57 
L  J.,  Q.  B.  524  ;  69  L.  T.  812  ;  36  W.  R.  873— 
C.  A.    Ct,  Deutsche,  etc.  v.  Briscoe,  supra. 

Kstake  of  Arbitrator  in  Law.]— The  court 
has  power  to  give  leave  to  revoke  a  submission 
to  arbitration  where  it  appears  that  the  arbi- 
trator is  going  wrong  in  point  of  law,  even  in 
a 'matter  within  his  jurisdiction.  East  and 
West  India  Dock  Company  v.  Kirk,  12  App. 
Cat  738 ;  57  L.  J.,  Q.  B.  295  ;  58  L.  T.  158— 
H.L.(E.) 

e.  Breach  of  Agreement  to  Refer. 


f  .  Condition  Precedent  to  Action. 


wis.] — In  an  action  for  damages  for 
breach  of  an  agreement  to  refer  disputes  to  arbi- 
tration, the  plaintiff  can  recover  only  nominal 
damages  if  be  would  not  have  been  entitled  to 
•Kceed  in  the  arbitration.  Brunsden  v.  Staines 
Ueal  Board,  1  C.  &  &  272— Mathew,  J. 


Fire  Insurance— Proviso  against  suing  before 
Arbitration.] — In  an  action  on  a  fire  policy  the 
defendant  pleaded  that  the  policy  was  made 
subject  to  a  condition  that,  if  any  difference 
should  arise  in  the  adjustment  of  a  loss,  the 
amount  to  be  paid  should  be  submitted  to  arbi- 
tration, and  the  insured  should  not  be  entitled  to 
commence  or  maintain  any  action  upon  the 
policy  until  the  amount  of  the  loss  should  have 
been  referred  and  determined  as  therein  pro- 
vided, and  then  only  for  the  amount  so  deter- 
mined, that  a  difference  had  arisen,  and  the 
amount  had  not  been  referred  or  determined : 
— Held,  that  the  determination  of  the  amount 
by  arbitration  was  a  condition  precedent  to  the 
right  to  recover  on  the  policy,  and  the  defence 
was  an  answer  to  the  action.  Collins  v.  Locke 
(4  App.  Cas.  674)  distinguished.  Viney  v.  Big- 
nold  or  Norwieh  Union,  20  Q.  B.  D.  172  ;  57  L. 
J.,  Q.  B.  82  ;  68  L.  T.  26  ;  86  W.  R.  479— D. 

Burden  of  Proof  that  Reference  required.] — 

The  Railway  Passengers'  Assurance  Company's 
Act,  1864,  provides  by  s.  3  that  any  question 
arising  on  any  contract  of  insurance  shall,  if 
either  party  require  it,  be  referred  to  arbitration, 
and  by  s.  16  tnat  if  there  be  any  question  or 
difference  as  to  the  liability  of  the  company,  it 
shall,  if  either  the  company  or  the  persons 
claiming  require  it,  and  as  a  condition  precedent 
to  the  enforcing  of  any  claim  to  which  the  ques- 
tion or  difference  relates,  be  referred  to  arbitra- 
tion. S.  33  provides  that  if  any  policy-holder  or 
his  representatives  begin  any  action  against  the 
company  in  respect  of  the  matters  to  be  referred 
to  arbitration  under  the  provisions  of  the  aet, 
the  court  or  a  judge,  on  application  by  the  com- 
pany after  appearance,  "upon  being  satisfied 
that  no  sufficient  reason  exists  why  the  matters 
cannot  be  or  ought  not  to  be  referred  to  arbi- 
tration, and  that  the  company  were,  at  the  time 
of  the  bringing  of  the  action  or  suit,  and  still 
are,  ready  and  willing  to  concur  in  all  acts 
necessary  and  proper  for  causing  the  matters  to 
be  decided  by  arbitration,"  may  make  an  order 
staying  all  proceedings  in  the  action  or  suit. 
The  representatives  of  a  policy-holder  in  the 
company  made  a  claim  against  the  company. 
The  company  disputed  it,  but  did  not  give 
notice  that  they  required  the  question  to  be 
referred  to  arbitration.  The  claimants  then 
brought  an  action,  whereupon  the  company  took 
out  a  summons  to  stay  proceedings  in  the  ac- 
tion : — Held,  that  the  provisions  of  ss.  3  and 
16  apply  to  cases  in  which  a  reference  to  arbi- 
tration is  required  before  an  action  is  begun ; 
that  8.  33  applies  to  cases  in  which  an  action 
has  been  begun  before  a  reference  is  asked  for, 
and  that  in  such  cases  the  party  claiming  has  a 
right  to  bring  an  action,  and  that  it  must  then 
be  a  question  of  discretion  in  each  case  whether 
the  action  ought  or  ought  not  to  be  stayed. 
Hodgson  v.  Railway  Passengers'  Assurance 
Company  (9  Q.  B.  D.  188)  explained.  Fox  v. 
Railway  Passengers'  Assurance  Company,  54 
L.  J.,  Q.  B.  505  ;  52  L.  T.  672— C.  A. 


g.  Powers  of  High  Court. 

To  appoint  Beeeiver,  and  stay  all  further 
Proceedings. ]  —Where  there  is  an  agreement  to 


51 


ARBITRATION,  REFERENCE,  AND  AWARD. 


52 


refer  all  matters  in  dispute  under  a  contract  to 
arbitration,  and  an  action  is  subsequently  brought 
under  the  contract,  in  which  it  is  found  to  be 
desirable,  for  the  protection  of  the  property 
which  is  the  subject  of  the  contract,  that  a  re- 
ceiver should  be  appointed  or  an  injunction 
granted,  it  is  competent  for  the  court  to  appoint 
a  receiver  or  grant  an  injunction,  and  by  the 
same  order  to  stay  all  further  proceedings  in  the 
action,  except  for  the  purpose  of  carrying  out 
the  order  for  a  receiver  or  an  injunction,  with  a 
view  to  a  reference  to  arbitration.  The  form  of 
order  to  be  made  in  such  a  case  considered. 
Compagnie  du  Senegal  v.  Woods  or  Smith,  53 
L.  J.,  Ch.  166  ;  49  L.  T.  527;  32  W.  R.  Ill— 
Kay,  J. 

Injunction  to  restrain  Proceedings.  ]  —  The 
lessee  of  a  ferry  served  a  notice  on  a  railway 
company  on  behalf  of  himself  and  his  lessors 
claiming  compensation  for  injury  to  the  ferry, 
and  requiring  the  dispute  to  be  submitted  to 
arbitration  under  the  Lands  Clauses  Act.  The 
lessors  had  not  given  authority  to  use  their 
names ;  the  act  of  the  railway  company  provided 
for  compensating  the  lessors  of  the  ferry,  but  did 
not  mention  their  lessee  ;  and  the  notice  claimed 
one  lump  sum  without  distinguishing  the  interests 
of  the  lessors  and  the  lessee.  The  railway  com- 
pany brought  an  action  for  an  injunction  to  re- 
strain the  lessee  from  proceeding  to  arbitration 
under  the  notice  : — Held,  that  a  proceeding  in 
the  name  of  a  person  who  had  given  no  authority 
ought  to  be  stayed,  and  that  an  injunction  ought 
to  be  granted,  the  unauthorised  use  of  the  name 
of  the  lessors  distinguishing  the  case  from  North 
London  Railway  v.  Cheat  Northern  Railway 
(11  Q.  B.  D.  30)  :— But  held,  on  appeal,  that 
though  the  court  in  which  an  action  is  brought 
has  jurisdiction  to  stay  proceedings  in  it  if  it  has 
been  brought  without  authority,  the  court  has 
no  general  jurisdiction  to  restrain  persons  from 
acting  without  authority,  and  that  an  injunction 
could  not  be  granted  to  restrain  a  person  from 
taking  proceedings  out  of  court  in  the  name  of  a 
person  who  had  given  no  authority  to  use  it. 
London  and  Blackmail  Railway  v.  Crow,  31  Ch. 

D.  354  ;  55  L.  J.,  Ch.  313  ;  54  L.  T.  309  ;  34  W. 

E.  201— C.  A. 

To  stay  Proceedings.]—^  supra. 


3.  THE  ARBITRATOR. 

Power  to  strike  out  and  add  Claims.] — Where 
an  arbitrator  was  appointed  having  all  the 
powers  of  a  judge  at  nisi  prius,  and  of  a  judge 
at  chambers  : — Held,  that  such  arbitrator  had  no 
power  to  strike  out  or  add  claims,  but  must  make 
a  final  end  and  determination  of  all  the  matters 
before  him.  Wilson  v.  Condi  D'Eu,  Railway, 
51  J.  P.  230— D. 

Enforcing  Attendance  of  Witnesses.] — A  refer- 
ence  of  a  cause  and  of  "  all  matters  in  difference 
between  the  parties  "  to  a  referee  empowered  to 
enter  judgment  on  the  award,  is  not  a  "  trial " 
within  the  meaning  of  17  &  18  Vict.  c.  34,  8. 1, 
so  as  to  enable  a  party  to  enforce  by  subpoena 
the  attendance  before  the  referee  of  a  witness 
not  within  the  jurisdiction.  Hall  v.  Brand,  12 
Q.  B.  D.  39 ;  53  L.  J.,  Q.  B.  19 ;  49  L.  T.  492 ; 
32  W.  R.  133— C.  A. 


Mercantile  Reference  —  Implied  Contract  to 
Pay  Remuneration.] — The  parties  in  a  mercantile 
dispute  agreed  to  refer  their  differences  to  arbi- 
trators (who  were  not  in  the  legal  profession),  or 
in  case  of  disagreement  to  their  umpire.  The 
arbitrators  disagreed  and  appointed  an  umpire 
who  made  his  award  : — Semble,  that  there  was 
an  implied  contract  by  the  parties  jointly  to  pay 
the  arbitrators  and  umpire  reasonable  remunera- 
tion for  their  services.  Crampton  v.  Ridley,  20 
Q.  B.  D.  48 ;  57  L.  T.  809 ;  36  W.  R.  664- 
A.  L.  Smith,  J. 


4.    THE    UMPIRE. 

Election  of— Validity.] — Where  in  an  action 
for  dissolution  of  partnership  the  matters  in  dif- 
ference were  referred  to  arbitration,  and  two 
arbitrators  were  appointed,  and  the  two  arbitra- 
tors met  at  an  hotel  to  appoint  an  umpire,  and 
each  man  nominated  a  man  unknown  to  the 
other,  and  put  the  two  names  into  a  hat,  and 
directed  the  waiter  to  draw  one  out,  and  the  lot 
fell  upon  Brown,  the  person  nominated  by  the 
plaintiff's  umpire,  on  motion  on  behalf  of  the 
defendant : —  Held,  that  the  arbitrators  not 
knowing  whether  the  persons  respectively  nomi- 
nated by  each  other  were  fit  to  act  as  umpire, 
the  appointment  was  bad.  An  arbitrator  in- 
trusted with  the  duty  of  appointing  an  umpire 
has  no  right  to  evade  his  judicial  duty  by 
leaving  the  appointment  to  chance.  Peseodx. 
Peseod,  58  L.  T.  76— Kay,  J. 

Remuneration,  ]i&e  Crampton  v.  Ridley,  supra. 


6.    THE  AWARD. 

Time  for  making  Award — Enlargement  by 
Court.] — By  a  submission  in  writing  the  time 
within  which  the  award  was  to  be  made  was 
fixed  at  one  month.  The  submission  contained 
no  power  to  enlarge  the  time.  The  award  was 
in  fact  made  after  the  expiration  of  the  month : 
— Held,  that  the  court  had  power  subsequently 
to  the  making  of  the  award  to  enlarge  the  time 
under  8.  15  of  the  Common  Law  Procedure  Act, 
1854.    May  v.  Harcourt,  13  Q.  B.  D.  688— D. 

The  court  cannot  enlarge  the  time  for  making 
an  award  under  the  Public  Health  Act,  1875  (38 
&  39  Vict.  c.  55),  beyond  the  period  limited  ins. 
180.  Mackenzie  and  Ascot  Gas  Company,  In  re, 
17  Q.  B.  D.  114  ;  55  L.  J.,  Q.  B.  309  ;  34  W.  R. 
487— D. 

Application  to  Set  aside — Valuation.] — On  the 

sale  of  land  one  of  the  conditions  of  sale  was 
that  the  purchaser  should  pay  for  the  timber  on 
the  land  at  a  valuation,  and  it  was  provided  for 
the  purpose  of  such  valuation  that  each  party 
should  appoint  a  valuer,  and  the  valuers  thus 
appointed  should,  before  they  proceeded  to  act, 
appoint  by  writing  an  umpire,  and  that  the  two 
valuers,  or,  if  they  disagreed,  their  umpire,  should 
make  the  valuation.  The  two  valuers  appointed 
being  unable  to  agree,  the  umpire  made  the 
valuation  : — Held,  that  such  valuation  was  not 
in  the  nature  of  an  award  on  an  arbitration,  and 
therefore  an  application  to  set  it  aside  must  be 
refused.  Gurus-  Wilson,  In  re,  or  Wilson  and 
Green,  In  re,  18  Q.  B.  D.  7 ;  56  L.  J.,  Q.  B.530; 
56  L.  T.  864  ;  36  W.  B.  43— C.  A. 


53 


ARBITRATION,  REFERENCE,  AND  AWARD. 


54 


—  Svidenee  of  Witness  contrary  to  his  pre- 
riouTtstiitony.]— The  court  will  refuse  to  set 
aside  an  award  of  an  arbitrator  on  the  ground  that 
the  eridenee  of  a  material  witness  differed  from 
and  was  contrary  to  evidence  he  had  previously 
given  in  another  arbitration,  which  fact  the 
party  against  whom  the  evidence  was  given  only 
discovered  subsequently  to  the  award.  Smith  v. 
Sainsbvry  (8  Bing.  SI)  followed.  Glasgow  and 
Sivth  Western  Railway  and  London  and  North 
Water*  Railway,  In  re,  52  J.  P.  215— D. 

— —  Affidavits  not  served  with  Notice  of 
Kttien.]  — A  party  to  an  arbitration  gave  notice 
of  motion  to  set  aside  the  award,  and  intended  to 
rely  upon  affidavits  in  support  of  the  motion  ;  the 
affidavits  were  not  served  withthe  notice  of  motion, 
and  not  until  the  day  after.  At  the  hearing  it  was 
contended,  by  way  of  preliminary  objection,  that 
the  affidavits  could  not  be  used  because  of  non- 
compliance with  the  provision  of  Ord.  LII.  r.  4. 
On  the  other  hand,  it  was  submitted  that  such 
non-compliance  was  an  irregularity  which 
might  be  amended  by  the  court  under  Ord. 
LXX.  r.  1 : — Held,  that  the  court  had  power 
under  Ord.  LXX.  r.  1,  to  give  relief,  and  cure 
the  irregularity  of  non-compliance  with  the  pro- 
vision of  Ord.  LII.  r.  4,  and  that  the  affidavits 
might  be  read.  Wyggeston  Hospital  and  Ste- 
flewm.  In  re,  54  L.  J.,  Q.  B.  248  ;  52  L.  T.  101  ; 
33  W.  R.  551— D. 

6.     COSTS. 

Befoenee  of  all  Matters  in  Difference— Costs 
in  the  Cause.]— Where  after  writ  in  an  action 
u  all  matters  in  difference  between  the  parties  " 
are  referred  to  an  arbitrator,  and  the  order  of 
reference  contains  a  clause  that  "  the  costs  of 
the  said  cause,  and  the  costs  of  the  reference  and 
award,  shall  be  costs  in  the  cause,"  the  arbitrator 
has  power  to  deal  with  all  the  costs,  and  may 
onfer  the  successful  plaintiff  to  pay  the  defen- 
dant's costs.    Hayward  v.  Moss,  49  J.  P.  248 

To  abide  "Event"— All  matters  in  Difference.] 
—An  action  and  all  matters  in  difference  were 
referred,  the  costs  of  the  cause,  reference,  and 
award  to  abide  the  event : — Held,  on  the  autho- 
rity of  Ellis  v.  Desilva  (6  Q.  B.  D.  521),  that 
the  word  "  event "  must  be  construed  distribu- 
nvely  ;  and  that,  consequently,  upon  an  award 
by  which  the  arbitrator  decided  in  the  plaintiff's 
favour  upon  the  claim  in  the  action,  but  in  the 
defendant's  favour  upon  a  matter  in  difference 
not  raised  in  the  action,  the  plaintiff  was  en- 
titled to  the  costs  of  the  action  and  the  defen- 
dant to  the  costs  of  the  matter  on  which  he  had 
weeeeded.  Gribble  v.  Buchanan  (18  C.  B.  691) 
not  followed.  Ilawhe  v.  Brear,  14  Q.  B.  D. 
Ml;  54  L.  J.,  Q.  B.  315;  52  L.  T.  432;  33 
W.  K.  613-D. 

Cause  referred.] — In  an  action  the  defen- 
dants denied  all  the  allegations  of  the  statement 
of  claim,  and,  as  an  alternative  defence,  paid  a 
anncf  money  into  court  in  satisfaction  of  the 
paortmV  claim.  This  sum  the  plaintiffs  did  not 
accept.  The  cause  was  referred,  the  costs  of  the 
Ja*Be< Reference  and  award  to  abide  the  event. 
*■*  arbitrator  found  all  the  issues,  except  one 
^special damage,  in  favour  of  the  plaintiffs  ; 
•Bdhealso  found  that  the  money  paid  into  court 


was  enough  to  satisfy  the  'plaintiffs1  claim  in  re- 
spect of  the  subject-matters  of  the  action : — 
Held,  that  the  defendants  were  entitled  to  the 
general  costs  of  the  action  and  award,  and  to 
the  costs  of  the  issues  found  in  their  favour ; 
but  that  the  plaintiffs  were  entitled  to  the  costs 
of  the  issues  on  which  they  had  succeeded,  for 
that  the  costs  ought  in  such  a  case  to  be  taxed 
in  the  same  manner  as  though  the  action  had 
been  tried  out  in  the  ordinary  course  of  law. 
Goutard  v.  Carr,  53  L.  J.,  Q.  B.  55  ;  32  W.  R. 
242— C.  A. 


Counter-claim.] — Where  an  action  is  re- 


ferred to  an  arbitrator, "  the  costs  of  the  said 
cause,  of  the  reference,  and  of  the  award  to 
abide  the  event,"  and  the  plaintiff  is  successful 
on  his  claim,  and  the  defendant  on  his  counter- 
claim, the  amount  recovered  by  the  plaintiff 
exceeding  the  amount  recovered  by  the  defen- 
dant on  his  counter-claim,  the  defendant  is 
entitled  to  the  costs  of  the  issues  on  which  he  is 
successful,  notwithstanding  that  the  subject- 
matter  of  the  claim  and  counter-claim  is  the 
same.  Pearson  v.  Ripley,  50  L.  T.  629  ;  32  W. 
R.  463— D. 

On  a  reference  to  arbitration  the  costs  to 
"abide  the  event,"  the  word  "event"  means 
the  event  of  the  whole  action,  and  where  the 

Elaintiff  is  substantially  successful  in  the  action 
e  is  entitled  to  the  general  costs  of  the  action, 
and  the  defendant  only  to  the  costs  of  those 
issues  on  which  he  has  been  successful,  notwith- 
standing that  on  the  reference  the  defendant  has 
recovered  more  upon  his  counter-claim  than  the 
plaintiff  on  his  claim,  and  that  the  success  of  the 
plaintiff  on  the  whole  action  is  due  to  the  defen- 
dant having  paid  money  into  court  prior  to  the 
reference.  In  an  action  to  recover  41 11.  for  work 
and  labour  done,  the  defendant  paid  into  court 
1782.,  and  as  to  the  residue  pleaded  negligence 
and  disobedience  to  orders  as  a  defence,  and  also 
counter-claimed  for  5002.  damages  in  respect 
thereof.  The  action  being  referred,  "  the  costs 
of  the  cause  to  abide  the  event,"  the  arbitrator 
awarded  the  plaintiff  11.  beyond  the  amount 
paid  into  court  and  awarded  the  defendant  182. 
on  his  counter-claim  : — Held,  that  as  the  plain- 
tiff had  been  substantially  successful  in  the 
action,  the  proper  order  was  that  the  plaintiff 
should  tax  the  general  costs  of  the  action  and 
the  defendant  the  costs  of  those  issues  raised  by 
his  counter-claim  on  which  he  had  been  success- 
ful. Waring  v.  Pearman,  60  L.  T.  633  ;  32  W. 
R.  429— D. 

Where  in  an  action  which  was  referred  to 
arbitration — costs  of  the  cause  and  of  the 
reference  and  award  to  follow  the  event — the 
amount  found  to  be  due  on  a  counter-claim 
arising  out  of  the  contract  exceeded  the  amount 
found  to  be  due  on  a  claim  also  arising  out  of 
the  contract,  and  the  arbitrator  awarded  that 
the  plaintiff,  should  pay  the  balance  due  to  the 
defendant : — Held,  that  the  defendant  was 
entitled  to  the  costs  of  the  cause  and  of  the 
reference  and  award,  but  that  the  plaintiff  was 
entitled  to  the  costs  of  those  issues  upon  which  he 
had  succeeded ;  and  that  judgment  should  be 
entered  accordingly.  Lund  v.  Campbell,  14  Q. 
B.  D.  821  ;  54  L.  J.,  Q.  B.  281  ;  53  L.  T.  900 ; 
33  W.  R.  510— C.  A. 

Leu  than  £50  recovered — Counterclaim.] — 
The  plaintiffs  having  claimed  from  the  def en- 


55 


ARBITRATION,  REFERENCE,  AND  AWARD. 


56 


dant,  in  respect  of  a  contract!  a  sum  greater  than 
50Z.,  and  having  been  awarded  upon  certain 
issues  a  sum  less  than  20Z.,  and  the  defendant 
having  been  awarded  63Z.  upon  his  counterclaim, 
upon  an  application  by  the  plaintiffs  to  be 
allowed  the  costs  of  the  issues  found  in  their 
favour : — Held,  that  the  plaintiffs,  having  re- 
covered a  sum  less  than  202.  were,  by  virtue  of 
the  operation  of  s.  5  of  the  County  Courts  Act, 
1867,  not  entitled  to  the  costs  of  the  issues  upon 
which  they  had  succeeded.  Ahrbecher,  or 
Ahrbecltct  v.  Frost,  17  Q.  B.  D.  606  ;  55  L.  J., 
Q.  B.  477  ;  55  L.  T.  264  ;  34  W.  R.  789— D. 


On  High  Court  Scale— Jurisdiction.] — An 


action  of  contract  was  referred  by  consent,  the 
costs  to  abide  the  event  of  the  award,  and  judg- 
ment on  the  award  to  be  entered  in  the  High 
Court.  The  arbitrator  found  for  the  plaintiff  for 
a  sum  less  than  50/.,  and  judgment  was  entered 
accordingly : — Held,  that  a  judge  at  chambers 
had  jurisdiction  under  OnL  XLV.  r.  12,  to  order 
the  plaintiff's  costs  |to  be  taxed  on  the  High 
Court  scale.  Hyde  v.  Beardsley,  18  Q.  B.  D. 
244  ;  56  L.  J.,  Q.  B.  81  ;  57  L.  T.  802  ;  35  W.  R. 
140— D. 

Taxation— negotiating  and  settling  Term*  of 
Submission— "  Costs  of  Reference."] —  Where 
upon  a  reference  by  consent,  but  not  in  a  cause, 
the  costs  of  the  reference  are  left  in  the  discre- 
tion of  the  arbitrator,  the  costs  of  negotiating 
and  settling  the  terms  of  the  submission  may  be 
allowed  on  taxation  as  "  costs  of  the  reference." 
Autothreptic  Steam  Boiler  Company,  In  re,  21 
Q.  B.  D.  182 ;  57  L.  J.,  Q.  B.  488  ;  59  L.  T.  632  ; 
37  W.  R.  15— D. 

Special  Case.]— The  costs  of  a  special 

case  stated  by  the  arbitrator  are  costs  incidental 
to  the  arbitration  within  the  meaning  of  s.  34 
of  the  Lands  Clauses  Consolidation  Act,  1845, 
and  are  therefore  costs  over  which  the  Court  of 
Appeal  has  no  jurisdiction.  Holliday  and 
WakrfiM  (Mayor),  In  re  20  Q.  B.  D.  699 ;  57 
L.  J.,  Q.  B.  620  :  59  L.  T.  248  :  52  J.  P.  644— 
C.A. 

—  Shorthand  Writer's  Notes.]— Before  an 
arbitration  an  arrangement  was  made  between 
the  parties  that  a  shorthand  writer  should,  on 
behalf  of  both  parties,  take  notes  of  the  arbitra- 
tion, and  that  the  costs  of  the  notes  and 
transcripts  should  be  costs  in  the  arbitration. 
After  four  days  this  arrangement  was  rescinded, 
On  taxation  the  master  disallowed  the  costs  of 
these  notes  except  those  taken  during  the  time 
the  arrangement  lasted  : — Held,  that  these  costs 
were  rightly  disallowed  as  on  a  reference  the 
costs  of  shorthand  notes  ought  not,  as  a  general 
rule,  to  be  allowed.  AutotJireptic  Steam  Boiler 
Company,  In  re,  59  L.  T.  632— D. 

■ 

Number  of  Counsel  1 — There  is  no  uni- 

n  ■*■■  *    ■ .  . *  . •  *  _ 


versal  rule  that  in  an  arbitration  the  fees  of  one 
counsel  only  can  be  allowed.  Orient  Steam 
Navigation  Company  v.  Ocean  Marine  Insur- 
ance Company,  35  W.  R.  771 — D. 

Public  Health  Act.]  — Two  local  au- 
thorities, whose  districts  were  adjacent,  agreed  to 
carry  out  a  joint  sewage  scheme  by  an  agreement, 
in  which  it  was  stipulated  that  all  disputes  as  to 
the  matters  comprised  therein  should  be  settled 


by  arbitration  in  the  manner  provided  by  sec- 
tions 179  and  180  of  the  Public  Health  Act, 
1875.  An  award  was  made  which  provided  that 
one  of  the  authorities  should  pay  to  the  other 
the  costs  of  the  reference  and  award,  without 
stating  the  amount  of  such  costs.  Upon  motion 
for  an  order  directing  the  taxation  of  the 
costs  : — Held,  that  as  the  submission  to  arbitra- 
tion had  been  made  a  rule  of  court,  the  taxing- 
master  was  bound  to  tax  the  costs  upon  the 
application  of  the  successful  party,  and  that  it 
was  not  obligatory  to  bring  an  action  upon  the 
award  in  order  to  enable  him  to  do  so.  Chester' 
field  Corporation  and  Brampton  Local  Board, 
In  re,  50  J.  P.  824— D. 


II.    COMPULSORY  REFERENCES. 
1.  COMMON  LAW  PROCEDURE  ACT. 

What  may  be  referred.] — An  action  may  be 
referred  under  s.  3  of  the  Common  Law  Pro- 
cedure Act,  1854,  although  the  question  in  dis- 
pute does  not  consist  entirely  of  matters  of  mere 
account.  Martin  v.  Fyfe,  49  L.  T.  107  ;  31  W.  B. 
840 — D.  But  in  C.  A.  though  not  reversed,  the 
matter  was  referred  to  an  official  referee. 
50  L.  T.  72— C.  A. 

Under  s.  3  of  the  Common  Law  Procedure 
Act,  1854,  the  court  or  a  judge  has  jurisdiction 
to  refer  compulsorily  the  whole  matter  in  dis- 
pute in  an  action,  if  any  part  of  the  matter  in 
dispute  consists  of  matter  of  mere  account 
which  cannot  conveniently  be  tried  in  the 
ordinary  way.  Knight  v.  Coales,  19  Q.  B.  D. 
296  ;  56  L.  J.,  Q.  B.  486  ;  35  W.  R.  679— C.  A. 
Fry  and  Lopes,  L  J  J. 


2.    JUDICATURE  ACT,  1873,  88.  56,  57. 

What  may  be  referred.] — If  any  part  of  the 
matter  in  dispute  can  be  brought  within  s.  3  of 
the  Common  Law  Procedure  Act,  1854,  as  being 
matter  of  mere  account  which  cannot  con- 
veniently be  tried  in  the  ordinary  way,  then 
s.  57  of  the  Judicature  Act,  1873,  applies,  and 
the  court  or  a  judge  has  jurisdiction  to  refer 
compulsorily,  under  that  section,  all  the  issues 
in  the  cause.  Knight  v.  Coales,  supra.— By 
Lord  Esher,  M.R. 

Upon  what  Terms — Special  Referee.]— The 
court  or  a  judge  has  no  power  to  refer  any 
cause  or  matter  to  a  special  referee  without  the 
consent  of  the  parties  thereto.  Where  one  of 
the  parties  to  a  cause  objected  to  a  reference  to 
a  special  referee,  the  judge,  in  ordering  the 
cause  to  be  tried  by  an  official  referee,  ordered 
that "  the  extra  costs  occasioned  by  a  trial  before 
an  official  referee  instead  of  a  special  referee  be 
reserved  "  :— Held,  that  the  judge  had  jurisdic- 
tion to  insert  these  terms  in  the  order.  London 
and  Lancashire  Fire  Insurance  Company  v. 
British  American  Association,  54  L.  J.,  Q*  B. 
302  ;  52  L.  T.  385— D. 

Peremptory  Appointment  for  proceeding  with 
Reference.] — A  referee,  whether  official  or  special, 
and  whether  he  has  to  try  a  matter  or  report 
thereon,  has  power,  subject  to  the  control  of  the 


57 


ARCHITECT— ARMY  AND  NAVY. 


58 


court,  to  peremptorily  appoint  a  day  for  the 
tearing  of  the  reference,  and,  in  the  absence  of 
either  party,  to  proceed  with  the  same.  Wen- 
l«ci  (Baroness)  v.  River  Dee  Co.,  53  L.  J.,  Q.  B. 
208 ;  49  L.  T.  617 ;  32  W.  B.  220— C.  A. 

Xode  of  Conducting  Inquiry.] — The  Judica- 
ture Act,  1873,  s.  56,  contemplates  an  inquiry  by 
the  examination  of  witnesses,  and  not  only  an 
inquiry  by  personal  observation  of  the  referee. 
Wenloek  (Baroness)  v.  River  Dee  Company, 
19  Q.  B.  D.  155  ;  66  L.  J..  Q.  B.  589 ;  67  L.  T. 
320 ;  35  W.  B.  822— C.  A. 

It  was  not  intended  by  the  •Judicature  Act 
that  an  official  referee  should  decide  the  issue 
in  an  action ;  he  is  only  to  ascertain  the  facts  so 
as  to  enable  the  court  to  decide  the  issue. 
Cariinall  v.  Cardinall.  25  Ch.  D.  772  ;  53  L.  J., 
Ch.  636  ;  32  W.  B.  411— Pearson,  J. 

Application  to  set  aside  Report — Time.] — 
Where  there  has  been  a  reference  under  s.  57  of 
the  Judicature  Act,  1873,  and  one  of  the  parties 
is  dissatisfied  with  the  findings  of  the  referee,  he 
may  more  to  set  the  report  aside  at  any  time 
before  judgment  has  been  given  upon  it.  The 
practice  as  laid  down  in  Dyke  v.  Cannell  (11 
Q.  B.  D.  180),  is  not  altered  by  the  rules  of  the 
Supreme  Court,  1883.  Bedborough  v.  A  rmy  and 
JTary  Hotel  Co.,  53  L.  J.,  Ch.  658  ;  50  L.  T.  173 
-Kay,  J. 


IIL    SSFEBSHCS  TO  A  MASTEB. 

Power  of  Court  to  inquire  into  Report.] — 
Where  a  receiver  has  been  appointed  and  certain 
questions  have  been  referred  to  a  master  of  the 
Queen's  Bench  Division  to  report,  the  report  of 
the  master,  by  analogy  to  the  practice  in  the 
Chancery  Division  in  respect  to  the  certificate  of 
a  chief  cleric,  is  not  final  and  conclusive  ;  the 
court  therefore  has  power  to  inquire  into  the 
accuracy  of  such  report.  Walmsley  v.  Mundy, 
Ex  varte  Goodenough,  13  Q.  B.  D.  807 ;  53  L.  J., 
Q.  B.  304 ;  50  L.  T.  317 ;  32  W.  B.  602— C.  A. 

The  court  will,  as  a  rule,  accept  the  findings  of 
a  master  upon  the  evidence  brought  before  him, 
and  this  rule  is  hardly  ever  departed  from.  Still 
there  is  no  rule  to  prevent  the  court  entering 
into  such  matters;  and  if  something  in  the 
findings  appeared  to  be  manifestly  wrong,  or  if 
some  fresh  evidence  had  since  been  adduced,  the 
court  would  not  be  bound  to  accept  the  master's 
report,  which  would  otherwise  acquire  the  sem- 
blance of  a  judgment.  Simmons.  In  re.  33  W.  B. 
7<*-D. 


ARCHITECT. 

drtifieato  ot] — See  Building  Contracts. 

BvtiM  and  Powers  as  to  Buildings  under 
Bttnpolia  Management  Acta.]— See  Metro- 
polis. 


sation  cases  on  the   compulsory  purchase   of 
property  are  entitled  to   be  remunerated  on  a 

gjreentage  of  the  sum  awarded,  according  to 
yde's    scale.      Dehenham    v.   King's    College, 
Cambridge,  1  C.  &  E.  438— Wills,  J. 


'■    Scale.] — No   custom 
exists  by  which  surveyors  engaged  in  oompen- 


ARMY  AND  NAVY. 

Person  subject  to  Military  Law  —  Canteen 
Steward.] — A  canteen  steward  appointed  by 
the  commanding  officer  of  the  district,  acting 
under  a  committee  consisting  of  three  officers, 
and  having  no  interest  in  the  profits  of  the 
canteen,  but  receiving  such  pay  or  allowance 
as  the  committee  may  think  fit  to  award  himr 
and  being  liable  to  dismissal  at  the  pleasure  of 
the  committee,  though  performing  no  military 
duty,  wearing  nonuniform,  bearing  no  arms,  and 
having  free  ingress  and  egress  at  his  pleasure 
to  and  from  the  barracks,  is  still  a  person  sub- 
ject to  military  law  within  s.  176,  sub-s.  4,  of  the 
Army  Act,  1881.  Flint,  Ex  parte,  15  Q.  B.  D. 
488  ;  33  W.  B.  936  ;  50  J.  P.  454— D. 

Officer  in  Navy— Bight  to  resign  Com- 
mission.]— A  commissioned  officer  in  the  Boyal 
Navy  who  has  accepted  an  appointment  to  serve 
on  board  one  of  her  Majesty's  ships  in  commis- 
sion, and  who  is  entered  on  the  ship's  books  is 
not  entitled  without  permission  from  the  Ad- 
miralty to  resign  his  commission  and  to  leave  his 
ship.  Such  an  officer  does  not  by  resigning  his 
commission  without  the  permission  of  the  Ad- 
miralty cease  to  be  "  a  person  belonging  to  her 
Majesty's  navy  "  within  s.  87  of  the  Naval  Dis- 
cipline Act,  1866  (29  &  30  Vict  c.  109).  Section  50 
of  the  Naval  Discipline  Act,  1886,  which  pro- 
vides that  every  officer  in  command  of  one  of 
her  Majesty's  ships,  or  the  senior  officer  present 
at  a  port,  may  by  warrant  under  his  hand 
authorise  any  person  to  arrest  any  offender  sub- 
ject to  this  act  for  any  offence  against  the  act 
mentioned  in  such  warrant,  does  not  prevent  a 
naval  officer,  being  "a  person  subject  to  the 
act "  within  the  meaning  of  s.  51,  from  arresting 
such  offender  without  a  warrant.  Reg.  v. 
Cuming,  Hall,  Ex  parte,  19  Q.  B.  D.  13  ;  56  L. 
J.,  Q.  B.  287  ;  57  L.  T.  477  ;  36  W.  B.  9 ;  51  J. 
P.  326 ;  6  Asp.  M.  C.  189 ;  16  Cox,  C.  C.  315 
— D. 

Pay  of  Surgeon  in  Navy— Attachment.]— The 
pay  of  a  surgeon  in  her  Majesty's  navy  who  is 
in  active  service  cannot  be  assigned,  and  there- 
fore cannot  be  attached  for  costs.  Apthorpe  v. 
Apthorpe,  12  P.  D.  192  ;  57  L.  T.  518  ;  35  W.  B. 
728— C.  A. 

Indian  Officer's  Pension — Execution.] — The 

pension  of  an  officer  of  her  Majesty's  forces,, 
being  by  s.  141  of  the  Army  Act,  1881,  made  in- 
alienable by  the  voluntary  act  of  the  person 
entitled  to  it,  cannot  be  taken  in  execution,. 
even  though  such  pension  be  given  solely  in 
respect  of  past  services,  and  the  officer  cannot 
again  be  called  upon  to  serve  : — Held,  that  an 
order  appointing  a  receiver  of  such  pension  was 
bad.    Birch  v.  Birch  (8  P.  D.  163)  approved  ; 


59 


AKTIZANS. 


60 


Dent  v.  Dent  (1  L.  R.,  P.  366)  distinguished. 
Lucas  v.  Harris,  18  Q.  B.  D.  127  ;  56  L.  JM  Q.  B. 
15  ;  65  L.  T.  658  ;  35  W.  R.  112 ;  61  J.  P.  261 
— C.A. 

Domicil  of  Choice— Military  Service  of  Crown.  ] 

— The  rale  that  a  British  subject  does  not,  by 
entering  into  and  remaining  in  the  military  ser- 
vice of  the  Grown,  abandon  the  domicil  which 
he  had  when  he  entered  into  the  service,  applies 
to  an  acquired  domicil  as  well  as  to  a  domicil  of 
origin.  An  infant,  whose  father  was  then  living 
in  Jersey,  where  he  had  acquired  a  domicil  in 
place  of  his  English  domicil  of  origin,  obtained 
a  commission  in  the  British  army  in  1854  and 
joined  his  regiment  in  England.  He  served  with 
the  regiment  in  different  parts  of  the  world,  and 
ultimately,  in  1863,  he  died  in  Canada,  where  he 
then  was  with  the  regiment  He  had  in  the 
meantime  paid  occasional  visits  to  Jersey  while 
on  leave : — Held,  that  he  retained  his  Jersey 
domicil  at  the  time  of  his  death.  Maereight, 
In  re,  Paxton  v.  Maereight,  30  Ch.  D.  165  ;  55 
L.  J.,  Ch.  18  ;  63  L.  T.  146  ;  33  W.  R.  838— 
Pearson,  J. 

Right  of  Soldiers  to  Vote.]— See  Election 
Law. 


ARREST. 


See  DEBTORS  ACT. 


ARTIZANS. 

Dwellings — "Owner" — Time  when  Ownership 
to  be  ascertained.] — By  various  sections  of  the 
Artizans'  and  Labourers'  Dwellings  Act,  1868, 
notice  of  all  proceedings,  &c,  under  the  act 
are  directed  to  be  served  upon  the  "  owner  "  of 
the  premises  which  are  being  dealt  with  by  the 
local  authority  ;  by  s.  3  "  owner  "  is  to  include 
■"  all  lessees  or  mortgagees  of  any  premises 
required  to  be  dealt  with  under  this  act,  except 
persons  holding  or  entitled  to  the  rents  and 
profits  of  such  premises  for  a  term  of  years,  of 
which  twenty-one  years  do  not  remain  un- 
expired."—In  July,  1886,  the  tenant  of  premises 
was  possessed  of  them  as  assignee  of  a  lease 
expiring  at  Michaelmas,  1886,  and  was  also  the 
assignee  of  another  lease  of  the  same  premises 
for  twenty-one  years,  commencing  on  the  expira- 
tion of  the  first  lease.  In  the  same  month  the 
vestry,  in  the  exercise  of  their  powers  under  the 
act,  caused  copies  of  the  reports  of  their  officer 
of  health  and  their  surveyor,  with  a  notice  of 
the  time  and  place  appointed  for  their  con- 
sideration, to  be  served  upon  the  tenant,  as  being 
the  "owner"  under  8.  7  of  the  act.  In  the 
following  October  an  order  was  made  by  the 
vestry  for  the  demolition  of  the  premises.  The 
work  required  was  done  by  the  tenant,  who  upon 


its  completion  applied  to  and  obtained  from  the 
vestry  a  charging  order  upon  the  premises : — 
Held,  that  although  the  interest  of  the  tenant  in 
the  new  lease  was  in  law  only  an  interesse 
termini,  he  had  such  an  interest  in  the  premises 
at  the  time  when  the  proceedings  were  initiated 
by  service  of  the  notices  upon  him  as  to  make 
him  the  "owner"  within  the  meaning  of  the 
section,  and,  that  the  point  of  time  to  be  looked 
at  in  order  to  determine  the  ownership  for  the 
purposes  of  the  act  was  the  date  of  the  service 
of  the  notices  and  not  of  the  making  of  the 
order  for  demolition.  Reg.  v.  St.  Marylebone 
Vestry,  20  Q.  B.  D.  415  ;  57  L.  J.,  M.  C.  9 ;  68 
L.  T.  180 ;  36  W.  R.  271  ;  52  J.  P.  534— D. 


Compensation — Duty   of  Arbitrator.]— 


When  an  arbitrator  has  been  appointed  under 
the  Artizans'  and  Labourers'  Dwellings  Improve- 
ment Act,  1875,  to  assess  compensation  for  lands 
proposed  to  be  taken  compulsorily  under  that 
act,  it  is  his  duty  to  assess  the  compensation  for 
Buch  lands  upon  the  footing  that  the  interest  in 
respect  of  which  a  claim  is  made  is  an  existing 
interest,  and  it  is  not  his  duty  to  decide  whether 
the  interest  does  or  does  not  exist.  Wilkins  v. 
Birmingham  (Mayor),  25  Ch.  D.  78  ;  53  L.  J., 
Ch.  93  ;  49  L.  T.  468  ;  32  W.  R.  118  ;  48  J.  P. 
231— Mathew,  J. 

From  the  date  when  the  local  authority  shall 
have  published  once  in  three  successive  weeks 
the  particulars  mentioned  in  s.  6  of  the  schedule 
to  the  Artizans'  Dwellings  Act,  the  relation  of 
vendor  and  purchaser  is  created  for  the  purpose 
of  fixing  the  subject-matter  of  compensation, 
and  the  effect  of  the  publication  of  such  par- 
ticulars is  analogous  to  the  effect  of  a  notice  to 
treat  under  the  Lands  Clauses  Consolidation 
Act,  1846.  Section  121  of  the  Lands  Clauses 
Consolidation  Act,  1845,  is  incorporated  in  the 
Artizans'  Dwellings  Act.    Ibt 

Appeal— Verdict  of  Jury — Interest  pay- 
able.]— Where  a  corporation  had  lodged  in  court 
the  6um  awarded  by  an  arbitrator  as  compensa- 
tion in  respect  of  land  taken  compulsorily  under 
the  Artizans'  and  Labourers'  Dwellings  Act, 
1875,  and  entered  into  possession,  and  such  sum 
was  afterwards  increased  by  the  verdict  of  a 
jury : — Held,  that  interest  at  the  rate  of  4  per 
cent,  upon  the  difference  was  payable  from  the 
time  when  the  corporation  entered  into  posses- 
sion until  payment  thereof  into  court :  that  in 
the  case  of  an  appeal  under  the  act  from  the 
arbitrator's  award,  to  a  jury,  the  function  of  the 
jury  is  to  assess  the  compensation  to  be  paid  as 
at  the  date  of  the  final  award,  and  the  jury's 
verdict  expresses  the  sum  which  ought  to  have 
been  certified  by  the  award.  Shaw  and  the 
Birmingham  Corporation,  In  re,  27  Ch.  D.  614  ; 
54  L.  J.,  Ch.  61 ;  51  L.  T.  684  ;  33  W.  R.  74— 
Chitty,  J. 

Power  to  Enter  into  Possession.]— The 

Artizans'  and  Labourers'  Dwellings  Act,  1875 
schedule,  ss.  18  and  20,  empower  a  local  autho- 
rity to  enter  into  possession  after  payment  to 
the  party  entitled,  or  after  payment  into  court 
of  the  sum  awarded  by  the  arbitrator.    lb. 


61 


ASSIGNMENT. 


62 


ASSIGNMENT. 


1.  Equitable  Assignment. 

2.  Bight  of  Auignee  to  Sue  in  his  own  Name. 

3.  Other  Point*. 


1.  Equitable  Assignment. 

Fud  nut  be  Mentioned.] — An  order  by  a 
creditor  to  his  debtor  to  pay  a  sum  of  money  to 
a  third  person  is  not  an  equitable  assignment 
unless  it  specifies  the  fund  or  debt  out  of  which 
the  payment  is  to  be  made.  Thus,  where  A.,  a 
builder,  being  a  debtor  to  the  plaintiff,  P.,  but 
a  creditor  of  the  defendant,  handed  to  P.  the 
following  order  signed  by  A.  and  addressed  to 
the  defendant,  who  received  due  notice  thereof : 
44  Please  pay  P.  the  amount  of  his  account, 
42/.  14*.  6d.  for  goods  supplied  "  :— Held,  that 
the  order  did  not  operate  as  an  equitable  assign- 
ment, and  that  the  document  was  merely  a  polite 
note  by  one  person  asking  another  person  to  pay 
his  debt,  and  imposed  no  kind  of  obligation  upon 
that  other  person  to  do  so.  Percival  v.  Dunn, 
29  Ch.  D.  128  ;  54  L.  J.,  Ch.  570  ;  52  L.  T.  320— 
T.-C.  B. 

Iisoranoe  Money — Cash.] — A.,  haying  made 
his  will  in  1880,  by  which  he  gave  the  income  of 
his  property  to  his  wife  B.,  fell  ill  in  1887,  and, 
bong  in  anticipation  of  death,  signed  the  follow- 
ing document : — "  1887,  March  1, — I  give  all  my 
insurance  money  that  is  coming  to  me  to  my 
wife  B.  for  her  own  use,  as  well  as  2002.  in  the 
bank.  This  is  my  wish.— A.,  witness,  C."  This 
document  was,  at  A/s  request,  placed  with  his 
will,  and  remained  there  till  his  death  in  April, 
1887.  Evidence  having  been  admitted  as  to  the 
circumstances  attending  the  execution  of  the 
document : — Held,  that  effect  could  not  be  given 
to  the  document  as  an  immediate  assignment  of 
the  property  therein  mentioned.  Hughes,  In  re, 
59  L.  T.  586  ;  36  W.  B.  821— C.  A. 

VctiM.] — In  1885  a  limited  company  made 
an  equitable  assignment  to  H.  &  Co.  in  the  fol- 
lowing terms : — '*  We  hold  at  your  disposal  the 
sam  of  425J .  due  from  Messrs.  Cayzer,  Irvine  & 
Cou,  for  goods  delivered  by  us  to  them  up  to  the 
31st  December,  1884.  until  the  balance  of  our 
acceptance  of  6601.  has  been  paid."  No  notice 
of  this  assignment  to  the  debtor  was  given  by 
H.  k  Co.  until  after  a  petition  for  winding-up 
the  company  had  been  presented : — Held,  on  the 
true  construction  of  the  letter,  that  H.  &  Co. 
were  entitled  to  the  whole  debt  up  to  the 
amount  of  4252.;  and  that  no  notice  of  the 
asBgnment  was  necessary  to  perfect  the  assign- 
neat  as  between  the  assignor  and  the  assignees, 
and  that  the  assignment  was  therefore  complete 
before  the  winding-up.  Oorringe  v.  Irwell  India 
Rnbber  Works,  34  Ch.  D.  128  ;  56  L.  J.,  Ch.  85 ; 
53  L.  T.  572  ;  35  W.  R.  86— C.  A. 

The  defendants  were  auctioneers,  and  had  sold 
for  a  customer  a  brewery,  and  part  of  the  pro- 
ceeds of  the  sale  was  in  their  hands  subject  to 
their  claim  for  charges  incurred  in  connexion 
with  the  sale ;  they  had  also  in  their  hands  the 
balance  of  the  price  of  some  furniture  sold  by 
them  for  the  same  customer.  The  plaintiff  was 
a  creditor  of  the  defendants'  customer,  and  the 
by  letter  charged  the  proceeds  of  the 


sale  of  the  brewery  in  favour  of  the  plaintiff. 
The  defendants  wrote  to  the  plaintiff  acknow- 
ledging the  receipt  of  the  letter  of  charge : — 
Held,  that  the  letter  of  charge  and  the  defen- 
dants' acknowledgment  thereof  amounted  to  a 
good  equitable  assignment  in  favour  of  the 
plaintiff.  Webb  v.  Smith,  30  Ch.  D.  192  ;  53 
L.  T.  737— C.  A. 
See  also  Gason  v.  Rich,  ante,  col.  8. 


2.  Bight  of  Assignee  to  sue  in  his  own 

Name. 

"  Absolute  Assignment"  —  Judicature  Act, 
1873,  s.  25,  sub-s.  6.] — A  deed  by  which  debts 
were  assigned  to  the  plaintiff  upon  trust  that  he 
should  receive  them  and  out  of  them  pay  himself 
a  sum  due  to  him  from  the  assignor,  and  pay  the 
surplus  to  the  assignor  : — Held,  an  "  absolute 
assignment  (not  purporting  to  be  by  way  of 
charge  only)  "  within  the  Judicature  Act,  1873, 
in  his  own  name  for  the  debts.  Burlinson  v. 
Hall,  12  Q.  B.  D.  347 ;  53  L.  J.,  Q.  B.  222  ;  50 
L.  T.  723  ;  32  W.  B.  492  ;  48  J.  P.  216— D. 

A  landlord  borrowed  money  of  the  plaintiff 
and  gave  him  a  letter  addressed  to  his  tenant  (of 
which  the  tenant  had  notice)  directing  him  to 
pay  to  the  plaintiff  the  rent  until  the  order  should 
be  countermanded  by  the  plaintiff  : — Held,  that 
this  was  an  absolute  assignment  under  s.  25, 
sub-s.  6,  of  the  Judicature  Act,  1873,  and  that 
the  plaintiff  could  sue  the  tenant  for  the  rent. 
KniU  v.  Prowse,  33  W.  B.  163— D. 

The  defendants,  who  were  executors  and 
trustees  under  a  will,  sent  to  G.,  one  of  the 
residuary  legatees,  a  statement  of  account  show- 
ing a  balance  to  be  due  to  him  on  account  of  his 
share  of  the  residuary  estate.  G.,  who  lived  in 
Australia,  sent  this  account  to  his  daughter,  the 

Slain  tiff,  with  the  following  direction  on  it  in  his 
andwriting :  "  I  hereby  instruct  the  trustees  in 
power  to  pay  to  my  daughter,  Laura  Harding, 
the  balance  shown  in  the  above  statement ..." 
Notice  in  writing  of  this  document  was  given  by 
the  plaintiff  to  the  defendants,  but  they  refused 
to  be  bound  by  it : — Held,  that  the  document 
was  a  valid  assignment  of  the  balance  in  the 
hands  of  the  defendants,  and  that  the  plaintiff 
was  entitled  to  recover  the  amount.  Harding 
v.  Harding,  17  Q.  B.  D.  442 ;  55  L.  J.,  Q.  B. 
462  ;  34  W.  B.  775— D. 

notice  of  Assignment  after  Assignor's 

Death.] — By  a  deed  of  assignment  all  moneys 
then  or  hereafter  to  be  standing  to  the  credit 
of  the  assignor  at  a  bank  were  assigned  to  a 
trustee,  on  trust  for  the  assignor  for  his  life, 
and  after  his  death  on  other  trusts.  At  the 
date  of  the  assignment  the  assignors  balance  at 
the  bank  was  48/.,  at  his  death  it  was  2172. 
Notice  of  the  assignment  was  not  given  to  the 
bank  until  after  the  assignors  death.  In  an 
action  by  the  trustee  against  the  bank  to  recover 
the  balance  of  2171. : — Held,  that  the  bank, 
being  a  stranger  to  the  assignment,  could  not 
set  up  the  defence  that  it  was  voluntary  and 
therefore  invalid  in  equity ;  that  the  balance  at 
the  time  of  the  assignor's  death  was  a  debt  or 
legal  chose  in  action  within  the  meaning  of 
s.  25,  sub-s.  6,  of  the  Judicature  Act,  1873  ;  that 
notice  after  the  death  of  the  assignor  was 
sufficient ;  and  that  the  plaintiff  was  entitled  to 
recover.     Walker  v.  Bradford   Old  Bank,  12 


63 


ASSIGNMENT. 


64 


Q.  B.  D.  511 ;  53  L.  J.,  Q.  B.  280  ;  32  W.  B.  645 
— D. 

Chose  in  Action.]— Sub-s.  6  of  s.  25  of 


the  Judicature  Act,  1873,  does  not  prevent  the 
ultimate  assignee  of  a  debt  from  suing  in  respect 
of  it  in  the  name  of  the  original  creditor,  free 
from  any  equities  which  would  have  been  avail- 
able against  an  intermediate  assignee,  but  not 
against  the  original  creditor.  Milan  Tramways 
Company,  In  re,  Theys,  Ex  parte,  25  Ch.  D. 
587  ;  50  L.  T.  545  ;  32  W.  R.  601— C.  A. 

Action  for  Specific  Performance.] — A  local 
authority,  having  compulsory  powers  of  pur- 
chase, gave  notice  to  a  landowner  to  treat,  and 
the  amount  of  compensation  was  assessed  by  a 
jury.  Before  completion  the  landowner  con- 
veyed the  land  to  the  plaintiffs,  subject  to  the 
claim  of  the  local  authority  :— Held,  that  the 
plaintiffs  could  maintain  an  action  against  the 
local  authority  for  the  specific  performance  of 
the  contract  arising  out  of  the  notice  to  treat 
and  subsequent  assessment  of  value,  without 
joining  as  plaintiff  the  landowner  to  whom  the 
notice  was  given.  Burr  v.  Wimbledon  Local 
Board,  56  L.  T.  329 ;  35  W.  B.  404— Keke- 
wich,  J. 

Bestraint  of  Trade— Action  to  enforce  Coven- 
ant.]— See  Contract. 

Solicitor's  Bill  of  Costs.] — A  solicitor  assigned 
his  bill  of  costs  and  the  right  to  recover  on  it, 
and  the  assignee  gave  notice  of  the  assignment, 
and  delivered  the  bill  to  the  party  to  be  charged, 
inclosed  in  a  letter  signed  by  himself.  Aiter 
the  expiration  of  a  month  he  brought  an  action 
in  his  own  name  on  the  bill  of  costs : — Held, 
that  the  plaintiff  was  an  assignee  within  s.  37 
of  the  Solicitors1  Act,  1843,  and  was  entitled  to 
maintain  the  action.  Ingle  v.  MCutchan,  12 
Q.  B.  D.  518  ;  53  L.  J.,  Q.  B.  311— D. 


3.  Otheb  Points. 

Stamping  Document]— 0*0.  &  Co.  contracted 
with  the  defendants  to  supply  them  with  timber, 
and  the  defendants  thereupon  became  indebted 
to  O'C.  k  Co.  in  the  sum  of  460Z.  O'C.  &  Co., 
when  the  defendants  were  so  indebted  to  them, 
addressed  a  letter  to  the  defendants  as  follows : 
— "  We  do  hereby  authorise  and  request  you  to 
pay  to  A.  the  sum  of  395?.  10*.,  due  from  you  to 
us  for  goods  sold  and  delivered  by  us  to  you, 
and  the  receipt  of  A.  will  be  a  good  discharge." 
This  instrument  was  duly  stamped  as  an  assign- 
ment but  was  not  stamped  with  an  impressed 
stamp  as  a  bill  of  exchange.  In  an  action  on 
the  instrument,  the  defence  denied  its  validity, 
on  the  ground  that  it  was  a  bill  of  exchange 
within  the  Stamp  Act,  1870  (33  &  34  Vict.  c. 
97),  and  had  not  been  stamped  as  such  before 
its  execution.  On  demurrer  by  the  plaintiff : — 
Held,  that  the  defence  was  bad.  Adams  v. 
Morgan,  14  L.  B.,  Ir.  140— C.  A. 

Moneys  dne  under  Building  Contract — Con- 
tractor  bankrupt— Validity.]— A  building  con- 
tract provided  that  payments  should  be  made, 
as  the  work  proceeded,  of  such  sums  on  account 
of  the  Diice  of  the  work  as  should  be  stated  in 
the  certificates  of  an  architect,  such  certificates 


to  be  given  at  the  architect's  discretion  at  the 
rate  of  80  per  cent,  upon  the  contract  value 
of  the  work  done  at  the  dates  of  such  certifi- 
cates, and  that  the  remaining  20  per  cent 
should  be  retained  till  the  completion  of  the 
work.  The  contract  empowered  the  building 
owners,  in  the  event  of  the  contractors  com- 
mitting an  act  of  bankruptcy,  to  discharge  them 
from  the  further  execution  of  the  work,  and 
employ  some  other  person  to  complete  it,  and  to 
deduct  the  amount  paid  to  such  other  person  for 
completing  the  same  from  the  contract  price. 
The  contractors  assigned  a  portion  of  the  reten- 
tion moneys,  i.e.,  the  price  of  work  done  under 
the  contract  retained  under  the  before-mentioned 
provision,  by  way  of  mortgage  to  secure  a  debt, 
and  notice  of  the  assignment  was  given  to  the 
building  owners.  After  making  such  assignment 
the  contractors  filed  a  petition  for  liquidation, 
the  works  then  remaining  incomplete.  A  trustee 
in  liquidation  and  a  committee  of  inspection 
were  appointed.  The  trustee,  in  pursuance  of  a 
resolution  of  the  committee,  completed  the  work, 
himself  advancing  money  for  that  purpose,  of 
which  an  amount  exceeding  that  of  the  retention 
moneys  assigned  as  aforesaid  was  still  unpaid, 
there  being  no  other  assets  from  which  he  could 
be  recouped  in  respect  thereof.  The  trustee 
and  the  mortgagee  both  claimed  the  amount  of 
the  retention  moneys  assigned  as  aforesaid  from 
the  building  owners.  On  an  interpleader  issue 
to  try  the  title  to  such  moneys  : — Held,  that,  in 
the  absence  of  anything  to  show  that  the  build- 
ing owners  had  exercised  the  power  of  taking 
the  work  out  of  the  contractors'  hands,  the 
trustee  must  be  taken  to  have  completed  the 
work  under  the  original  contract  as  trustee  of 
the  contractors'  estate,  and  not  as  a  person 
employed  to  complete  the  work  in  substitution 
for  the  contractors  ;  that  the  assignment  of  the 
retention  moneys  held  good  as  against  the 
trustee  ;  and  that  the  mortgagees  were  therefore 
entitled  to  succeed.  Tooth  v.  Hallett  (4  L.  B., 
Ch.  242)  distinguished.  Drew  v.  Josolyne,  18 
Q.  B.  D.  590  ;  56  L.  J.,  Q.  B.  490 ;  57  L.  T.  5  ; 
35  W.  B.  570— C.  A. 

Divisibility  of  Contract.  J — A  colonial  statute 
embodied  a  contract  by  which  a  company  agreed 
to  construct  and  complete  a  railway  in  the 
colony,  on  behalf  of  the  Colonial  Government, 
in  a  certain  time,  in  consideration  of  an  anneal 
subsidy,  to  be  paid  for  a  certain  period, "  such 
annual  subsidy  to  attach  in  proportionate  parts 
and  form  part  of  the  assets  of  the  company  as 
and  when  each  section  is  completed,"  and  of  a 
grant  of  land  "upon  completion  of  each  section." 
The  company,  under  the  powers  of  their  charter, 
afterwards  assigned  a  portion  of  the  undertaking 
and  "  all  their  interest  in  the  subsidy  "  to  trustees 
to  secure  the  payment  of  certain  bonds.  The 
company  failed  to  complete  the  railway : — Held, 
first,  that. on  completion  of  each  section  of  the 
railway  a  proportionate  part  of  the  subsidy 
became  payable  for  the  whole  period ;  secondly, 
that  the  claim  of  the  company  to  the  grant  of 
land  became  complete  as  each  section  of  the 
railway  was  completed;  thirdly,  that  if  the 
Colonial  Government  had  claims  against  the 
company,  such  Government  might  relieve  itself 
pro  tanto  from  payment  of  the  subsidy  by 
counter-claim ;  fourthly,  that  as  the  claims  of 
the  trustees  arose  out  of  the  same  contract,  such 
claims  were  subject  to  a  similar  counter-claim. 


65 


ATTACHMENT. 


66 


Katfmuiland  Government  v.  Newfoundland 
M*Uw*s.  13  App.  Cas.  199  ;  67  L.  J.,  P.  C.  35  ; 
58  L.  T.  285—  P.  C. 

ADswanes  out  of  Lunatio's  Estate  not  Assign- 
tola] — On  a  decree  for  judicial  separation  an 
order  was  made  for  payment  of  602.  a  year  to  the 
wife  as  permanent  alimony.  The  husband  was 
afterwards  found  lunatic  by  inquisition,  and  by 
an  orler  in  lunacy  and  chancery  the  dividends  of 
a  mm  of  stock  to  which  he  was  entitled  in  a 
chancery  suit  were  ordered  to  be  carried  to  his 
account  in  the  lunacy,  and  602.  a  year  to  be  paid 
cat  of  them  to  his  wife  in  respect  of  her  alimony 
till  further  order.  The  wife  assigned  the  annuity 
to  a  purchaser,  who  presented  a  petition  in 
lunacy,  and  in  the  suit  to  have  the  annuity  paid 
to  her :— Held,  that  the  petition  must  be  refused, 
on  the  ground  that  whether  the  annuity  was 
considered  as  alimony  or  as  an  allowance  made 
to  the  wife  by  the  court  in  lunacy,  it  was  not 
assignable.  Robiruon,  In  re,  27  Ch.  D.  160 ;  53 
L  J.?  Ch.  986  ;  33  W.  B.  17— C.  A. 

W  Trait  Fund  —  Duty  of  Assignee  as  to 
Istiee.] — When  an  assignment  is  made  of  an 
interest  in  trust  funds,  part  of  which  is  in  court 
and  part  in  the  hands  of  trustees,  the  assignee  in 
<xuer  to  complete  his  title  must,  as  regards  the 
lands  in  the  hands  of  the  trustees,  give  notice  to 
the  trustees.  Notice  to  the  trustees  will  be  in- 
effectual as  regards  the  fund  in  court,  and  as  to 
that  fond  the  priorities  of  different  assignees  will 
be  determined  by  the  dates  at  which  they  have 
obtained  stop-orders.  An  assignee  who  has  ob- 
tained a  stop-order  is  entitled  (as  regards  the 
fond  in  court)  to  priority  over  a  prior  assignee 
(of  whose  assignment  he  had  no  notice)  who  had 
given  notice  to  the  trustees  before  the  date  of  the 
stop-order,  but  who  had  not  himself  obtained  a 
stop-order.  Mutual  Life  Assurance  Society  v. 
Ltnjley.  26  Ch.  D.  686  ;  51  L.  T.  284  ;  32  W.  B. 
ft2— Pearson,  J. 

Iifr  and  Accident  Policies.]—^  Insurance. 

Of  Leases.]— &«  Landlord  and  Tenant. 

Of  Bill  of  Sale— Whethor  Begistration  Be- 
tpini.]— See  Bills  of  Sale. 

wVen  am  Aet  of  Bankruptcy.]— See  Bank- 

STPTCT. 

Bight  of  Assignee  of  Judgment  to  Garnishee 
War.]— See  Attachment  of  Debts. 

Of  Debt -Specially  Indorsed  Writ  — Suffl- 
tkaty.]— Set  Practice  (Writ;. 


ATTACHMENT. 

I.  Of  Persons. 
II.  Of  Debts. 

L  OF    PEBSONS. 

tab&tion  of  Judge  at  Chambers.]— A  judge 
at  chambers  has  power  to  give  leave  to  issue  a 


writ  of  attachment.  Salm  Kyrburg  v.  Potnanski, 
12  Q.  B.  D.  218  ;  53  L.  J.,  Q.  B.  428 ;  32  W.  B. 
752— D. 

Application  in  Chancery  Division,  how  made.] 
— An  application  in  the  Chancery  Division  for 
leave  to  issue  a  writ  of  attachment  is  not 
properly  made  by  summons  in  Chambers,  but 
should  be  made  in  open  Court  by  motion.  Davit 
v.  Galmoye,  39  Ch.  D.  322  ;  58  L.  J.,  Ch.  120  ; 
60  L.  T.  130  ;37  W.  B.  227— C.  A. 

Breach  of  Injunction— Non-service  of  Order- 
Notice.  ] — In  order  to  justify  the  committal  of  a 
defendant  for  breach  of  aninjanction  it  is  not 
necessary  that  the  order  granting  the  injunction 
should  have  been  served  upon  him,  if  it  is  proved 
that  he  had  notice  of  the  order  aliunde,  ana  knew 
that  the  plaintiff  intended  to  enforce  it.  This 
rule  is  not  limited  to  cases  in  which  a  breach  is 
committed  before  there  has  been  time  for  the 
plaintiff  to  get  the  order  drawn  up  and  entered. 
James  v.  Downes  (18  Ves.  522),  and  Vafuandau 
v.  Base  (2  Jac.  &  W.  264),  discussed  and  ex- 
plained. United  Telephone  Company  t.  Daley 
25  Ch.  D.  778  ;  53  L.  J.,  Ch.  296  ;  50  L.  T.  85  ; 
32  W.  B.  428— Pearson,  J. 

Writ  not  Issued.  ]— An  attachment  maybe 

issued  for  breach  of  an  injunction,  although  no 
writ  of  injunction  has  been  actually  issued,  when 
the  defendant,  after  being  served  with  the  decree 
or  order  for  injunction,  has  disobeyed  it.  Mining 
Company  of  Ireland  v.  Delany,  21  L.  B.,  Ir.  8 — 
V.  C. 

For  Non-payment  of  Debt  and  of  Costs.] — See 
Debtors  Act. 

For  Non-oomplianoe  with  Decree  in  Bestitu- 
tion  Suit.  ]—See  Husband  and  Wife. 

Contempt  of  Court.]  —  See  Contempt  of 
Court. 

Of  Solicitors— Summary  Jurisdiction.]—^ 
Solicitor. 

Committal  or  Attachment  —  Amendment  of 
Notice  of  Motion.] — A  motion  having  been  made 
by  the  plaintiff  to  attach  the  defendant  for  dis- 
obedience to  an  order,  it  was  objected  by  the 
defendant  that  the  plaintiffs  remedy,  if  any, 
was  by  committal : — Held,  that  the  distinction 
between  committal  and  attachment  still  existed, 
and  that,  although  permission  would  be  given 
to  the  plaintiff  to  amend  his  notice  of  motion, 
yet  the  motion  must  stand  over  for  service  of 
the  notice  as  amended.  Callow  v.  Young,  56 
L.  J.,  Ch.  690  ;  56  L.  T.  147— Chitty,  J. 

Personal  Service— Waiver.] — A  motion  was 
made  for  the  attachment  of  a  solicitor  for  non- 
compliance with  an  order  of  the  court  upon 
him,  to  deliver  a  bill  of  costs  within  a  fortnight. 
It  appeared  that  the  order  had  not  been  per* 
sonally  served  upon  him,  but  had  been  left  with 
his  clerk  at  his  office.  The  solicitor  had  written 
giving  reasons  for  his  delay,  and  promising  the 
bill  of  costs  during  the  then  ensuing  week : — 
Held,  that  personal  service  of  the  order,  was 
necessary,  and  that  the  necessity  for  such 
personal  service  had  not  been  waived  by  the 
letter,  and  that  therefore  the  motion  for  attach- 


67 


ATTACHMENT. 


68 


ment  must  be  dismissed.     Cunningham,  In  re, 
55  L.  T.  766— North,  J. 

Service  on  Solicitor— Indorsement  on  Order — 
Waiver.) — Ord.  XLI.  r.  5,  which  requires  any 
order  to  Dear  an  indorsement  warning  the  party 
bound  by  it  of  the  consequences  of  disobedience, 
applies  to  an  order  for  discovery  of  documents 
of  which  service  on  the  solicitor  is  permitted. 
And  a  writ  of  attachment  cannot  be  issued 
against  a  person  who  disobeys  such  an  order 
unless  the  copy  served  on  his  solicitor  bore  the 
required  indorsement.  A  party  whose  solicitor 
was  served  with  such  an  order  without  the 
required  indorsement,  took  out  a  summons  for 
further  time  : — Held,  that  he  did  not  thereby 
waive  the  irregularity  of  the  service.  Hampden 
v.  Wallis,  26  Ch.  D.  746 ;  54  L.  J.,  Ch.  83  ;  50 
L.  T.  515  ;  32  W.  R.  808—0.  A. 


Breach  of  Undertaking.]— There  is  no 


distinction  in  regard  to  the  service  of  a  notice  of 
motion  for  leave  to  issue  a  writ  of  attachment 
between  contempt  in  breach  of  an  undertaking, 
and  contempt  in  breach  of  an  injunction.  Where, 
therefore,  the  defendant,  in  an  action,  had  com- 
mitted  a  breach  of  his  undertaking  contained  in 
an  order  of  the  court,  made  on  motion  for  an 
injunction,  and  personal  service  of  a  motion  for 
leave  to  issue  an  attachment  against  him  could 
not  be  effected,  the  order  was  made  upon  affi- 
davit of  service  upon  the  solicitor  who  had  acted 
for  the  defendant  in  the  action,  notwithstanding 
that  he  had  ceased  so  to  act  shortly  after  the 
date  of  the  undertaking.  Callow  v.  Young,  55 
L.  T.  543— Chitty,  J. 

Indorsement  of  Order— Tender  of  Expenses.] 

— An  order  for  attachment  of  the  defendant  was 
made  by  a  district  registrar  in  respect  of  default 
in  attendance  on  a  future  appointment ;  it  also 
appeared  that  there  was  no  tender  of  conduct 
money  in  respect  of  her  expenses  and  that  the 
order  was  not  properly  endorsed  under  Ord. 
XLI.  r.  5  :— Held,  that  any  one  of  these  points 
was  fatal  to  the  validity  of  the  order  for  attach- 
ment.   Shurrock  v.  Lillie,  52  J.  P.  263— D. 

Form  of  Notice  of  Motion  for  Attachment 


— Sufficiency  of  Affidavit.]— By  order  of  the  28th 
of  February,  1884,  the  defendant  was  directed  to 
pay  a  sum  into  court  by  the  13  th  of  March. 
This  order  not  having  been  served  before  the 
13th  of  March,  an  order  was  made  on  the  3rd  of 
April,  enlarging  the  time  until  four  days  after 
service  of  the  two  orders.  The  plaintiff  served 
the  two  orders,  indorsing  on  the  former  the 
notice  given  in  Ord.  I.  of  the  7th  of  January, 
1870,  but  putting  no  indorsement  on  the  latter. 
The  money  not  having  been  paid  in,  the  plaintiff 
moved  for  an  attachment "  for  your  default  in 
obeying  the  orders  made  herein  on  the  28th  of 
February  last  and  the  3rd  of  April  last,"  sup- 
porting it  by  an  affidavit  that  the  defendant  had 
not  borrowed  the  order  for  the  purpose  of  paying 
in  the  money,  nor  given  notice  of  having  paid  in 
the  money  : — Held,  that  as  the  second  order  did 
not  require  the  defendant  to  do  any  act,  but  only 
extended  the  time  for  doing  the  act  mentioned 
in  the  first  order,  it  was  sufficient  to  endorse  the 
first  order  only.  Treherne  v.  Dale,  27  Ch.  D.  66  ; 
51  L.  T.  553  :  33  W.  R.  96— C.  A. 

Held,  also,  that  the  indorsement  was  sufficient 
in  form,  for  that  although  not  in  the  words  of 


the  indorsement  given  in  the  rules  of  1883,  Ord. 
XLI.,  r.  5,  it  was  to  the  same  effect.    lb. 

Held,  also,  that  having  regard  to  the  nature  of 
the  orders,  a  notice  of  motion  to  attach  "for 
default  in  obeying  "  them  sufficiently  stated  the 
grounds  of  the  application  within  the  meaning 
of  Ord.  LIL,  r.  4.    lb. 

Held,  also,  that  though  the  affidavit  in  support 
of  the  application  would  probably  have  been 
held  insufficient  to  support  an  attachment,  if 
the  motion  had  been  heard  on  affidavit  of 
service,  the  defect  was  cured  by  the  defen- 
dant's appearing  and  resisting  the  application 
on  other  grounds.    lb. 

Service  of  Copy  of  Affidavit  with  Motion,]— 
On  giving  a  notice  of  motion  to  commit  a  defen- 
dant for  contempt  in  disobeying  an  order  for 
discovery,  the  plaintiffs  omitted  to  serve  with 
the  notice  of  motion  a  copy  of  an  affidavit  which 
they  stated  in  the  notice  that  they  should  read 
in  support  of  the  motion  : — Held,  that  Ord.  LIL, 
r.  4,  applied  to  such  a  notice  of  motion,  and  not 
only  to  a  case  in  which  a  writ  of  attachment 
would  have  issued  under  the  old  common  law 
practice,  and  that  the  notice  of  motion  was 
therefore  irregular.  Litchfield  v.  Jones,  25  Oh. 
D.  64  ;  32  W.  R.  288— North,  J. 

But  held,  that  the  motion  should  not  he  at 
once  dismissed,  but  should  be  ordered  to  stand 
over  until  after  the  hearing  of  a  summons  by 
the  defendant  for  further  time  to  make  the 
discovery.    lb. 


Irregularity.] — The  affidavit  in  support 


of  a  motion  for  attachment  was  not  served  with 
the  notice  of  motion  as  it  ought  to  have  been 
under  Ord.  LI  I.,  r.  4,  but  was  served  two  clear 
days  before  the  day  named  in  the  notice  of 
motion  for  moving  the  court : — Held,  that  this 
was  not  such  an  irregularity  as  made  the 
notice  invalid.  Hampden  v.  Wallis,  supra,  per 
Chitty,  J. 

It  is  irregular  under  Rules  of  Supreme  Court, 
1883,  Ord.  LIL,  r.  4,  not  to  serve  with  a  notice 
of  motion  for  attachment  copies  of  the  affidavits 
intended  to  be  used  on  the  motion  ;  the  copy 
affidavits,  and  the  notice  should  be  served 
together,  and,  if  not  served  personally,  at  the 
address  for  service.  (See  Ord.  IV.,  r.  1  ;  XH., 
r.  10  ;  LXVIL,  r.  2.)  Petty  v.  Daniel,  34  Ch. 
D.  172  ;  56  L.  J.,  Ch.  192  ;  55  L.  T.  745 ;  35  W. 
R.  151— Kay,  J. 

An  irregularity  committed  in  the  course  of 
any  proceedings  under  the  Rules  of  the  court 
does  not  necessarily  render  the  proceedings 
void ;  under  Ord.  LXX.,  r.  1,  the  court  has 
power  to  condone  the  irregularity.  Therefore, 
where  an  order  for  attachment  for  contempt  of 
court  had  been  made  against  a  defendant  on  a 
motion  the  affidavits  in  support  of  which  had 
not  been  served  with  the  notice  of  motion,  as 
required  by  Ord.  LIL,  r.  4,  the  court,  being 
satisfied  that  a  contempt  had  been  committed, 
refused,  in  the  exercise  of  the  discretion  con- 
ferred on  it  by  Ord.  LXX.,  r.  1,  to  set  it  aside ; 
but  under  the  circumstances  the  defendant,  who 
was  in  prison  under  the  attachment,  was  ordered 
to  be  released.  Hampden  v.  Wallis  (26  Ch.  D. 
746),  and  Wyggeston  Arbitration,  In  re  (83  W. 
R.  551),  considered.    lb. 

A  summons  or  notice  of  motion  to  set  aside 
proceedings  for  irregularity  should  state  the 


69 


ATTACHMENT. 


70 


several  objections  on  which  the  applicant  in- 
tends to  insist.    (See  Ord.  LXX.,  r.  3.)    lb. 

Sheriff— Execution  of  Writ — Breaking  open 
Otter  Door.] — Where  a  writ  of  attachment  has 
issued  against  a  party  to  an  action  for  contempt 
of  coon  in  non-compliance  with  an  order  for  the 
delivery  over  of  deeds  and  documents,  the  officer 
charged  with  the  execution  of  the  writ  may 
break  open  the  outer  door  of  the  house  in  order 
to  execute  it  Burdett  v.  Abbott  (14  Bast,  1), 
and  Prteston,  In  re  (1 1  Q.  B.  D.  545),  discussed. 
Hkrtey  r.  Harvey,  26  Gh.  D.  644  ;  33  W.  R.  76  ; 
48  J.  P.  468— Chittj,  J. 


II.    OF  DEBTS. 

Who  entitled  to — Assignee  of  Judgment.]— 
The  ssajroee  of  a  judgment  debt  is  a  person  who 
has  **obra'netl "  a  judgment  within  the  meaning 
of  Ord.  XL  V..  r.  1,  and  is  entitled  to  a  garnishee 
order  attaching  debts  due  to  the  judgment 
debtor.  Goodman  v.  Robinson,  18  Q.  B.  D.  332  ; 
56  L.  J.,  Q.  B.  392  ;  55  L.  T.  811  ;  36  W.  R.  274 
-D. 

What  Attachable— "  Debt,  Legal  or  Equit- 
aeWj— In  July,  1882,  the  plaintiff  obtained  a 
judgment  agaii.st  W.  for  574/.  in  an  action  for 
breach  of  promise  of  marriage  commenced  in 
August  1881.  In  May.  1*81,  W.  became  en- 
titled  to  a  legacy  of  5002.  under  a  will  of  which 
the  defendant  «  as  executor.  This  legacy  was  in 
hand  and  ready  to  be  paid  over  in  October,  1881. 
On  the  31st  of  May,  1841,  and  before  the  legacy 
became  actually  payable  to  W.,  he  married ;  and 
on  the  17th  October,  1881,  he,  by  deed  between 
himself  of  the  one  part  and  the  defendant  of  the 
other  part,  assigned  the  500/.  to  the  defendant 
upon  trust  to  invest  the  money  and  pay  the 
annual  income  to  his  wife  for  her  separate  use 
|  far  life,  and  afterwards  upon  other  trusts.  On 
toe  4th  of  January,  1883,  the  plaintiff  obtained 
an  order  under  a.  61  of  the  Common  Law  Pro- 
cedure Act,  1854,  attaching  any  sum  or  sums  of 
nooey  then  in  or  which  might  come  to  the  hands 
of  the  defendant,  to  answer  the  judgment  re- 
covered by  her  asamst  W.  Upon  an  issue 
directed  to  try  whether  on  the  4th  of  January, 
1883,  there  was  a  sum  of  money  which  the 
plaintiff  was  entitled,  under  Ord.  XLV.  (1883), 
and  under  the  Common  Law  Procedure  Act, 
18M,  to  attach  in  the  hands  of  the  defendant,  to 
atitry  the  plaintiffs  judgment  debt  against 
^  : — Held,  that,  even  assuming  the  settlement 
of  October,  1831.  to  be  impeachable,  there  was 
nothing  in  the  nature  of  a  debt,  either  legal  or 
equitable,  due  or  accruing  due  from  the  defendant 
to  W.  (the  judgment  debtor)  which  could  be 
attached  to  madefy  the  judgment  debt.  Vyse  v. 
Brmtm,  13  Q.  B.  D.  199  ;  33  W.R.  168  ;  48  J.  P. 
151 ;  1  C.  k  E.  223— Williams,  J. 

Honeys  aeeruing  doe— Sale  of  Lands.] — 

A.  mortp.igi»d  leaseholds  by  underlease  to  B.,  to 
•care  800/.  A.  subsequently  agreed  to  sell  the 
leaseholds  to  C.  for  900/.  6.  paid  a  deposit  of 
«*m  and  agreed  to  pay  the  balance  of  the 
porchase-money  payable  on  a  given  day.  By 
tbe*greement  800/.  of  the  purchase-money  was 
to  be  left  on  mortgage  of  the  property  sold. 
Tie  same  solicitor*  >icted  for  A.,  B.,  and  C. 
throughout  the  matter.    A.  executed  an  assign- 


ment of  the  leaseholds  to  C,  and  C.  entered 
into  possession  thereof  : — Held,  that  A.  was 
entitled  to  the  70/.  balance  of  purchase-money 
from  C,  although  no  surrender  had  been  ob- 
tained of  B.'s  underlease,  and  that  therefore  the 
sum  of  70/.  could  be  attached  by  the  judgment 
creditor  of  A.  Owens  v.  Shield,  1  C.  &  E.  356— 
Denman,  J. 

Debt   dne   to   Judgment    Debtor   and 


Another  jointly.] — The  debt,  legal  or  equitable, 
owing  by  a  garnishee  to  a  judgment  debtor, 
which  can  be  attached  to  answer  the  judgment 
debt,  must  be  a  debt  due  to  such  judgment 
debtor  alone,  and  where  it  is  only  due  to  him 
jointly  with  another  person  it  cannot  be  so 
attached.  Maedonald  v.  Tacquah  Gold  Mines 
Company,  13  Q.  B.  D.  535  ;  53  L.  J.,  Q.  B.  376  ; 

61  L.  T.  210  ;  32  W.  R.  760— C.  A. 

« 

Pension— Quarterly  Instalment  dne  and 

to  become  dne.]— A  quarterly  instalment  of  a 
police  constable  s  pension  which  is  actually  due 
to  him  may  be  attached  under  Ord.  XLV.,  being 
"  a  debt  owing  "  to  him.  Otherwise  as  to  further 
instalments  to  become  due  in  the  future.  Booth 
v.  Trail,  Hay  son,  In  re,  12  Q.  B.  D.  8  ;  53  L.J., 
Q.  B.  24  ;  49  L.  T.  471 ;  32  W.  B.  122— D.       * 


Pay  of  Surgeon  in  Havy.] — The  pay  of  a 


surgeon  in  her  Majesty's  navy  who  is  in  active 
service,  cannot  be  assigned,  and  therefore  cannot 
be  attached  for  costs.  Apthorpe  v.  Apthorpe, 
12  P.  D.  192 ;  57  L.  T.  618 ;  35  W.  t  728— 
C.A. 


Money  found  on  Prisoner  and  retained 


by  Police.] — Money  in  the  possession  of  a  prisoner 
which  is  taken  by  the  police  upon  his  apprehen- 
sion, and  retained  by  them  after  his  conviction, 
does  not  render  the  police  debtors  to  the  prisoner, 
and  is  not  a  debt  due  from  them  to  the  prisoner 
which  can  be  attached  by  a  judgment  creditor 
of  the  prisoner  by  garnishee  proceedings  under 
Ord.  XLV.  r.  1.  Bice  v.  Jarvis,  49  J.  P.  264 
— D. 

Priorities — Equitable    Charge — Hotiee J  — A 

garnishee  order  under  Rules  of  Supreme  Court, 
1883,  Ord.  XLV.,  binds  only  so  much  of  the 
debt  owing  to  the  debtor  from  a  third  party  as 
the  debtor  can  honestly  deal  with  at  the  time 
the  garnishee  order  nisi  was  obtained  and  served, 
consequently  it  is  postponed  to  a  prior  equitable 
assignment  of  the  debt,  even  in  the  absence  of 
notice.  General  Horticultural  Company,  In  re, 
Whitehouse,  Ex  parte,  32  Ch.  D.  512  ;  65  L.  J., 
Ch.  608 ;  54  L.  T.  898  ;  34  W.  R.  681— 
Chitty,  J. 

A  creditor  can  only  attach  by  a  garnishee  order 
such  property  of  his  debtor  as  the  debtor  could 
deal  with  properly  and  without  violation  of  the 
rights  of  other  persons.  Therefore  an  equitable 
charge,  obtained  before  a  garnishee  order,  takes 
priority  of  the  order,  even  where  no  notice  of 
the  charge  was  given.  Badeley  v.  Consolidated 
Bank,  38  Ch.  D.  238  ;  57  L.  J.,  Ch.  468  ;  59  L.  T. 
419  ;  36  W.  R.  745— C.  A. 

Solicitor's  Lien.]—  Costs  awarded  upon  an 

interlocutory  application  are  subject  to  the  lien 
of  the  solicitor  for  the  party  to  whom  they  are 
given  and  cannot  be  attached  by  a  judgment 

D  2 


71 


ATTACHMENT. 


72 


creditor  of  the  party  to  the  prejudice  of  the  lien. 
Cormick  v.  Ronayne,  22  L.  ft.,  lr.  140 — Ex.  D. 

Solicitor's  Charging  Order.] — The  amount 

of  the  debt  and  costs  recovered  by  a  plaintiff  in 
an  action  had  been  levied,  and  were  in  the  hands 
of  the  sheriff,  when  a  judgment  creditor  of  the 
plaintiff  took  out  a  garnishee  summons  to  attach 
this  money.  After  the  summons  was  taken  out, 
but  before  any  order  was  made  thereon,  the 
solicitor  who  had  acted  for  the  plaintiff  in  the 
action,  the  proceeds  of  the  judgment  in  which  it 
was  sought  to  attach,  obtained  under  23  &  24 
Vict.  c.  127,  s.  28,  from  a  judge  at  chambers,  an 
order  charging  in  his  favour  the  money  in  the 
hands  of  the  sheriff.  The  judgment  creditor 
applied  to  set  this  order  aside : — Held,  that 
the  charging  order  had  priority  and  ought  not 
to  be  set  aside,  that  the  judgment  creditor  who 
had  taken  out  the  garnishee  summons  was  not  a 
bona  fide  purchaser  for  value  within  23  &  24 
Vict  c  127,  a,  28,  and  that  the  word  "  property  " 
in  that  section  included  both  the  debt  and  the 
costs  recovered  in  the  action.  Dallow  v.  Gar- 
rold,  14  Q.  B.  D.  643  ;  54  L.  J.,  Q.  B.  76  j  33 
W.  R.  219— C.  A. 

Bankruptcy— When  Payment  Protected.] — 
A  judge's  order  made  by  consent  was  given  by 
the  defendant  in  a  personal  action  to  the  plain- 
tiffs authorising  them  to  sign  judgment  for  a 
certain  amount,  and  judgment  was  accordingly 
signed.  The  consent  order  was  not  filed  within 
twenty-one  days  after  the  making  of  the  order, 
as  required  by  section  27  of  the  Debtors  Act, 
1869.  The  judgment  creditors  subsequently 
obtained  payment  under  a  garnishee  order  of 
certain  money  owed  by  one  Y .  to  the  judgment 
debtor,  and  after  such  payment  had  been  made 
the  debtor  was  adjudged  bankrupt : — Held,  that 
as  the  consent  order  had  not  been  filed  within 
twenty-one  days,  and  the  bankruptcy  of  the 
debtor  had  intervened,  both  the  order  and  the 
judgment  upon  which  the  garnishee  order  was 
based  were  void  under  s.  27  ;  and  that  the 
trustee  in  bankruptcy  was  entitled  to  recover 
from  the  judgment  creditors  the  money  received 
by  them  under  the  garnishee  order  as  money 
paid  to  the  use  of  the  trustee.  Brown,  Ex 
parte,  Smith,  In  re,  20  Q.  B.  D.  821 ;  57  L.  J., 
Q.  B.  212  ;  36  W.  R.  403— C.  A. 


Payment  into  Court  to  abide  farther 


Ordor—"  Receipt  of  Debt."  J—  A  creditor  having 
obtained  a  garnishee  order  in  respect  of  a  debt 
due  to  the  judgment  debtor,  a  third  person  in- 
tervened claiming  that  the  debt  was  due  to  her ; 
and  the  garnishee,  under  an  order  of  the  court, 
paid  the  amount  into  court  to  abide  further 
order.  A  receiving  order  having  been  subse- 
quently made  against  the  judgment  debtor,  the 
third  person  withdrew  her  claim  : — Held,  that 
there  had  been  no  "  receipt  of  the  debt "  bv  the 
creditor  within  the  meaning  of  s.  45  of  the 
Bankruptcy  Act,  1883,  so  as  to  entitle  him  to 
retain  it  against  the  judgment  debtor's  trustee 
in  bankruptcy.  Butler  v.  Wearing,  17  Q.  B.  D. 
182  ;  3M.6.B.  6— Manisty,  J. 

Right  of  Garnishee  to  set  oft] — A  garnishee 
cannot  set  off  against  a  judgment  creditor  a  debt 
due  to  him  (the  garnishee)  from  the  judgment 
debtor,  if  the  garnishee  was  aware,  from  the 
commencement  of  the  transaction  which  resulted 


in  his  becoming  indebted  to  the  judgment 
debtor,  that  the  judgment  debtor's  right  to  such 
debt  could  only  be  as  trustee  for  the  judgment 
creditor.  Fitt  v.  Bryant,  1  C.  &  £.  194— 
Denman,  J. 

A  garnishee  can  set  off  against  a  judgment 
creditor  costs  incurred  by  him  but  not  paid 
at  the  time  the  issue  is  directed,  against  which 
the  judgment  debtor  is  bound  to  indemnify  the 
garnishee."ifyjf!itf  v.  WandsworthDistrictBoard, 
1  C.  &  B.  92— Day,  J. 

Lapse  of  Six  Tears  from  Date  of  Judgment] 
— A  garnishee  against  whom  proceedings  under 
Ord.  XLV.  have  been  duly  taken,  may  be  ordered 
to  pay  to  a  judgment  creditor  a  debt  due  from 
such  garnishee  to  the  judgment  debtor,  although 
more  than  six  years  have  elapsed  since  the 
judgment.  Fellows  v.  Thornton,  14  Q.  B.  D. 
335 ;  64  L.  J.,  Q.  B.  279 ;  52  L.  T.  389 ;  33 
W.  R.  25g— D. 

Effect  of  Order  Rial.]— By  a  decree  of  the 
Master  of  the  Rolls,  it  was  ordered  that  the 
plaintiff  F.  do  pay  to  the  defendant  W.  his  costs 
of  the  action.  By  the  decree  of  the  Court  of 
Appeal  in  the  same  case,  the  action  was  dis- 
missed with  costs  to  be  paid  by  F.  to  the  defen- 
dant S.,  when  taxed.  W.'s  costs  were  taxed ;  8. 
was  indebted  to  F.  in  a  sum  for  rent,  and  W. 
obtained  an  order  that  the  debt  be  attached  for 
W.'s  costs,  unless  within  ten  days  cause  be  shewn 
to  the  contrary.  When  this  order  was  obtained, 
S.'s  costs  had  not  been  taxed,  but  they  were 
taxed  and  certified  before  it  was  made  absolute : 
— Held,  that  the  order  nisi  had  attached  the 
debt,  and  it  was  ordered  to  be  paid  to  W.'s 
administrators.  FUzpatrich  v.  Waring,  13 
L.  R.,  lr.  2— M.  R. 


Duty  to  Stop  Payment  of  Cheque.]  — 


Where  a  debtor  draws  a  cheque  in  payment  of  a 
debt,  which  cheque  is  duly  honoured  and  paid, 
there  is  no  debt  owing  or  accruing  from  the 
debtor  to  the  creditor  between  the  giving  of  the 
cheque  and  payment  thereof.  There  is  no  duty 
upon  the  deotor  who  is  served  with  a  garnishee 
order  nisi  between  such  dates  to  stop  payment  of 
the  cheque.  ElweU  v.  Jackson,  1  C.  &  E.  362— 
Denman,  J.    Affirmed  in  C.  A.     * 

Conditional  Order  to  Pay — Appearance  by 
Defendant.] — Though  a  defendant  cannot  shew 
cause  against  a  conditional  order  made  on  a  gar* 
nishee  to  pay  money  alleged  to  be  due  to  the 
defendant,  yet,  if  served  with  the  order,  he  is 
entitled  to  appear  on  the  motion  to  make  it 
absolute,  and  to  inform  the  court  by  affidavit  of 
such  facts  as  may  be  material.  And  where  a 
conditional  order  was  made  on  occupying  tenants 
to  pay  to  the  plaintiff  rents  alleged  to  be  then 
due  to  the  defendant,  and  the  defendant  made 
an  affidavit  shewing  that  the  rents  were  not  due 
to  her,  inasmuch  as  the  lands  had  been  sold  some 
years  previously  to  a  third  party  : — Held,  that 
the  defendant  was  entitled  to  appear  on  the 
motion,  and  the  conditional  order  was  discharged. 
Lorely  v.  White,  12  L.  R.,  Ir.  384— Q.  B.  D. 

Order  for  Examination  of  Garnishee,]— A 
garnishee  against  whom  an  order  absolute  has 
been  made  and  execution  issued  under  Ord. 
XLV.  rr.  3,  4,  is  a  debtor  within  Ord.  XLII.  r. 
32,  and  the  judgment  creditor  is  entitled  under 


73 


BAILMENT— BAKEE. 


74 


that  rale  to  an  order  for  the  garnishee's  examina- 
tion is  to  his  means.  Cowan  v.  Carlill,  52  L.  T. 
131 ;  33  W.  K.  583— D. 

OandikM  Order  absolute  on  Default  of  Appear- 
saot— Effect  of  Debt  not  attachable.] — A  claim 
on  a  fire  policy  having  been  made  against  an 
insurance  company  for  unliquidated  damages, 
the  plaintiff,  a  judgment  creditor  of  the  assured 
for  127/.,  duly  served  an  ex  parte  garnishee  order, 
under  Ord.  XLV.,  r.  1,  on  the  company,  attach- 
ing all  debts  owing  or  accruing  trom  them  to 
the  assured.  The  company  did  not  appear  to 
•hew  cause  against  it,  and  the  order  was  made 
absolute.  An  award  on  the  claim  was  afterwards 
made  of  24$/.  due  to  the  assured,  who  assigned 
it  to  trustees  for  his  creditors.  The  plaintiff  de- 
manded payment  under  his  garnishee  order  of 
127/.  out  of  the  sum  payable  by  the  company, 
and  threatened  them  with  execution,  ana  the 
trustees  claiming  the  248Z.,  the  company  took  out 
an  interpleader  summons  on  which  an  order  was 
made  directing  the  sum  of  127/.  to  be  paid  into 
wart,  and  an  issue  to  be  tried  as  to  whether  that 
asm  was  the  property  of  the  plaintiff  or  the 
trustees.  On  appeal : — Held,  that  although  no 
attachable  debt  was  in  existence  at  the  date  of 
the  garnishee  order,  yet  it,  not  having  been  set 
aside,  entitled  the  plaintiff  to  issue  execution  for 
1271,  and  that  the  interpleader  order  was  wrong. 
Randall  v.  Lithgow,  12  Q.  B.  D.  525  ;  53  L.  J., 
Q.  B.  518 ;  50  L.  T.  587  ;  32  W.  R.  794—  D. 


ATTORNEY. 

See  SOLICITOR. 
Power  at]— See  Power  of  Attorney. 


ATTORNEY-GENERAL. 

See   CROWN. 


AUCTIONEER. 


See  SALE. 


AUDITOR. 

See   COMPANY. 


AUSTRALIA. 

See  COLONY. 


AVERAGE. 

See  INSURANCE— SHIPPING. 


AWARD. 

See  ARBITRATION. 


BAIL. 


In  Shipping  Matters.]— See  Shipping. 

Contract   to   Indemnify.]  —  See    Criminal 
Law. 


BAILMENT. 

Power  of  Sale  in  case  of  Pledge.  ]— See  France 
v  Clark,  26  Ch.  D.  257  ;  53  L.  J.,  Ch.  585  ;  50 
L.  T.  1 ;  32  W.  R.  466— C.  A. 

To  Innkeeper.  ]—See  Innkeeper. 

Of  Goods  and  Animals  for  Carriage.]— See 
Cabbies. 

Involuntary  Bailee — Duty  of.]— There  is  no 
duty  cast  upon  the  recipient  with  respect  to 
goods  sent  to  him  voluntarily  by  another,  and 
unsolicited  by  the  recipient.  Howard  v.  Harris^ 
1  C.  &  E.  253— Williams,  J. 


BAKER. 

Sale  of  Bread— Delivery  by  Cart  without  Beam 
and  Scales.]— The  appellant,  a  baker,  having 
received  through  his  traveller  an  order  from  a 
customer  for  a  quartern  loaf,  the  manager  of  the 
baker's  shop  selected,  weighed,  and  appropriated 
to  the  customer  a  loaf,  which  was  tnen  carried 
out  in  a  cart  and  delivered  to  the  customer,  on 
credit,  by  a  servant  of  the  baker,  without  being 
provided  with  any  beam  and  scales  with  proper 
weights  :— Held,  that  the  appellant  was  rightly 
convicted  under  6  &  7  Will.  4,  c.  37,  s.  7,  which 
enacts  that  every  baker  beyond  certain  metro- 
politan limits  who  shall  "carry  out  bread  for 
sale  in  and  from  any  cart"  shall  be  provided 
with  a  correct  beam  and  scales  with  proper 
weights,  in  order  that  all  bread  sold  by  him  may 
be  weighed  in  the  presence  of  the  purchaser ; 
and  in  case  any  Buch  baker  shall  "  carry  out  or 
deliver  any  bread  "  without  being  provided  with 
such  beam  and  scales  with  proper  weights,  he 
shall  be  liable  to  a  penalty.  Bidgway  v.  Ward, 
14  Q.  B.  D.  110 ;  54  L.  J.,  M.  C.  20 ;  51  L,  T 


75 


BANKER. 


76 


704  ;  33  W.  R.  166 ;  49  J.  P.  150  ;  16  Cox,  C.  C. 
603— D. 

Sect.  7  of  6  &  7  Will.  4,  c.  37,  provides  that 
every  baker  or  seller  of  bread,  and  every  servant 
employed  by  such  baker  or  seller  of  bread,  who 
shall  convey  or  carry  oat  bread  for  sale  in  and 
from  any  cart,  shall  be  provided  with  a  beam 
and  scales  with  proper  weights,  in  order  that  all 
bread  sold  by  any  such  baker  or  seller  of  bread, 
or  his  servant,  may  be  weighed  in  the  presence 
of  the  purchaser  thereof  :  and  in  case  any  "  such 
baker  or  seller  of  bread"  or  his  servant  shall 
carry  out  or  deliver  any  bread  without  being 
provided  with  such  beam  and  scales,  every  such 
baker  or  seller  of  bread  shall  be  liable  to  a 
penalty.  A  customer  bought  three  loaves  in  a 
baker's  shop.  The  baker  weighed  the  loaves  in 
her  presence,  and  subsequently,  at  her  request 
and  to  oblige  her,  his  servant  carried  them  out 
in  a  cart  and  delivered  them  at  her  house, 
without  being  provided  with  any  beam  and 
scales : — Held,  that  the  baker  had  not  carried 
out  or  delivered  the  loaves  as  "such  baker  or 
seller  of  bread,"  and  therefore  could  not  be  con- 
victed of  an  offence  under  s.  7.  Daniel  v. 
Whitfield,  15  Q.  B.  D.  408  ;  54  L.  J.f  M.  C.  134  ; 
53  L.  T.  471  ;  33  W.  R.  905  ;  49  J.  P.  694  ;  15 
Cox,  C.  C.  762— D. 


BANKER. 

1.  Liability  in  General. 

2.  Lien. 

3.  Customers'  Accounts. 

4.  Bank  Notes. 

5.  Savings  Banks. 

6.  Bank  Books  as  Evidence. — See  Evidence 
(Documents). 

1.  Liability  in  General. 

Estoppel— Hegligence— Custody  of  Seal— Loss 
by  unauthorised  use  of  Seal— Proximate  Cause 
of  Lots.] — The  plaintiffs,  a  corporate  body,  left 
their  seal  in  the  custody  of  their  clerk,  who,  with- 
out  authority,  affixed  it  to  powers  of  attorney, 
under  which  certain  stock  in  the  public  funds, 
the  property  of  the  plaintiffs,  was  sold.  The 
clerk  appropriated  the  proceeds.  In  an  action  in 
which  the  plaintiffs  claimed  that  they  were  en- 
titled  to  the  stock  on  the  ground  that  it  had 
been  transferred  without  their  authority  by  the 
defendants  : — Held,  on  the  authority  of  Bank  of 
Ireland  v.  Trustees  of  Evans*  Charities  (5  H.  L. 
C.  389),  that  assuming  the  plaintiffs  had  been 
negligent  their  negligence  was  not  the  proximate 
cause  of  the  loss,  and  did  not  disentitle  them 
from  recovering  in  the  action.  Merchants  of 
Staple  of  England  v.  Bank  of  England,  21  Q. 
B.  D.  160 ;  67  L.  J.,  Q.  B.  418 ;  36  W.  R.  880  ; 
62  J.  P.  680— C.  A. 

Deposit  by  Money-dealer  of  Customer's  Secu- 
rities—Custom— Negotiable  Securities— Holder 
for  Valuo  without  Notice.]— The  appellant, 
who  was  associated  with  B.  in  a  financial 
speculation,  gave  him,  for  the  purpose  of  raising 
a  loan,  certificates  of  stock  in  a  foreign  railway, 
of  which  he  executed  transfers  in  blank,  and 
some  bonds  of  foreign  companies.    Some  of  the 


bonds  were  payable  to  bearer,  and  in  others  the 
name  of  the  obligee  was  left  blank,  and  they 
were  transferable,  after  the  name  Lad  been  filled 
in,  by  entry  in  the  company's  books.  There  was 
evidence  that  both  classes  of  bonds  were  treated 
as  negotiable  securities  transferable  by  delivery. 
£.,  with  the  consent  of  the  appellant,  gave  these 
securities  to  M.,  a  money  •dealer,  for  the  purpose 
of  raising  money.  M.  obtained  advances  from 
the  respondent  banks  by  depositing  these  seen- 
rities,  together  with  others,  having  first  filled  up 
the  blank  transfers  of  railway  stock.  M.  became 
bankrupt,  and  the  banks  claimed  a  right  to  hold 
the  stock  and  bonds  as  security  for  the  whole 
debt  due  from  him  to  them.  There  was  evidence 
that  it  was  the  custom  of  banks  dealing  with 
money-dealers  to  make  advances  to  them  on 
deposit  of  securities  en  bloc,  without  regard  to 
particular  interests  : — Hel  1,  that,  under  the  cir- 
cumstances, the  banks  could  not  be  considered 
as  holders  for  value  without  notice,  and,  as 
against  the  appellant,  could  not  hold  the  certi- 
ficates and  bonds  as  security  for  the  whole  debt 
due  from  M.,  but  only  for  the  specific  advances 
made  on  them.  Sheffield  (Earl)  v.  London 
Joint  Stock  Bank,  13  App.  Cas.  333;  57  L.  J., 
Ch.  986  ;  58  L.  T.  735  ;  37  W.  R.  33— H.  L.  (B.). 


Duty  m  to  Inquiry  —  Securities.]  —  The 
English  executors  of  a  deceased  hnglish  owner 
of  shares  in  an  American  company  desired  to  be 
entered  in  the  New  York  registry  in  respect  of 
them  to  enable  them  to  receive  the  dividends, 
and  if  necessary  to  sell.  On  the  instructions  of 
their  broker  they  signed  in  blank  a  form  of 
transfer  and  power  of  attorney,  which  was  in- 
dorsed on  the  share  certificates,  and  sent  them 
to  the  broker  in  London  to  be  forwarded  to 
New  York  for  registration.  The  broker  fraudu- 
lently deposited  the  certificates  with  the  defen- 
dant bankers  as  security  for  advances,  and 
afterwards  became  bankrupt.  A  question  then 
arose  as  to  whether  the  executors  or  the  banks 
were  entitled  to  the  certificates : — Held,  that  as 
the  question  depended  on  transactions  in  England, 
it  must  be  decided  by  English  and  not  by 
American  law  : — that  the  state  of  the  certificates 
put  the  defendant  banks  on  inquiry,  and  that  the 
executors  were  entitled  to  the  shares,  and  were 
not  estopped  from  denying  the  title  of  the  banks 
to  them.  Williams  v.  Colmial  Bank,  38  Ch.  D. 
388  ;  57  L.  J.,  Ch.  826  ;  59  L.  T.  643  ;  36  W.  B. 
625— C.  A. 

A  holder  of  shares  "  in  trust "  is  not  a  mnnda- 
taire  prete-nom  and  holds  subject  to  a  prior  title 
on  the  part  of  some  person  undisclosed.  Such 
holding  not  being  forbidden  by  the  law  of  the 
colony,  a  transferee  from  such  holder  is  boond 
to  inquire  whether  the  transfer  is  authorised  by 
the  nature  of  the  trust.  Bank  of  Montreal  v. 
Sweeny,  12  App.  Cas.  617 ;  56  L.  J.,  P.  C.  79  ;  66 
L.  T.  897— P.  C. 

Loan  to  Customer— Transfer  by  Three  Persons 
to  secure  Loan — Authority  to  Sell— Transfer  to 
Nominoos  of  Customer.]— G.,  a  stock-broker,  who 
was  one  of  three  trustees  and  acted  as  broker  to 
the  trust,  proposed  to  his  co-trustees  to  sell  B. 
stock  belonging  to  the  trust  and  re-invest  in 
N.  E.  stock.  The  three  trustees  then,  on  the 
27th  of  January,  1882,  executed  a  transfer  of 
the  B.  stock  for  a  nominal  consideration  to  two 
persons  who  were  officers  of  a  bank  of  which 
G.  was  a  customer.    G.  gave  the  transfer  to  the 


77 


BANKER. 


78 


hank  as  security  for  a  loan  by  them  to  him,  and 
the  transfer  was  registered.    G.,  in  February, 
1882,  paid  off  the  loan,  and  on  the   15th  of 
February  the  bank  transferred  the  stock  to  pur- 
chasers from  G.,  and,  without  giving  any  notice 
to  O.'s  co-trustees,  allowed  him  to  receive  the 
purchase-money.    He  invested  it  in  N.  E.  stock 
in  his  own  name.    In  1883  he  sold  the  N.  E. 
stock  and  misappropriated  the  proceeds.    Shortly 
after  the  sale  of  the  B.  stock  G.  had  given  an 
account  to  his  co-trustees  shewing  the  sale  of  B. 
stock  and  a  re-investment  in  N.  K.  stock,  and  in 
18&  he  rendered  another  account  in  which  he 
represented  the  N.  E.  stock  as  still  forming  part 
of  the  trust  funda     In  1885  he  absconded.    The 
co-trustees  remembered  hardly  anything  about 
the  transaction,  but  admitted  the  genuineness  of 
their  signatures  to  the  deed  of  transfer  : — Held, 
that  the  bank  had  occasioned  the  loss  to  the 
trust  estate  by  allowing  the  purchase-money  to 
come  to  the  hands  of  G.  who  had  no  authority  to 
lecetve  it,  and  whom  they  had  no  sufficient  rea- 
son for  believing  to  have  authority  to  receive  it, 
and  that  the  bank  must  therefore  make  it  good 
at  the  suit  of  the  co-trustees,  although  the  co- 
trustees had  been  negligent  in  not  seeing  that 
the  N.  E.  stock  was  registered  in  the  joint  names 
of  the  trustees.     Magna*  v.   Queensland  Na- 
tional Bank,  37  Ch.   D.  466  ;  57  L.  J.,  Ch.  413  ; 
38  L.  T.  248  ;  36  W.  R.  577— C.  A.    Affirming 
52  J.  P.  246— Kay,  J. 

Post  Office  Order  cashed— negotiable  Instxn- 
attt.] — The  plaintiffs  banked  with  the  defen- 
dants. It  was  the  duty  of  the  plaintiffs' 
secretary  to  pay  all  moneys  received  by  him 
on  behalf  of  the  plaintiffs  into  the  defendants1 
bank  to  the  credit  of  the  plaintiffs.  The  secre- 
tary without  the  knowledge  of  the  plaintiffs 
kept  an  account  at  the  defendants'  bank.  He 
paid  into  the  defendants'  bank  to  his  own 
credit  certain  post-office  orders  belonging  to  the 
plaintiffs  which  the  defendants  subsequently 
cashed.  The  post-office  regulations  with  regard 
to  post-office  orders  provide  that,  when  pre- 
sented for  payment  by  a  banker,  they  shall  be 
payable  without  the  signature  by  the  payee  of 
the  receipt  contained  in  the  order,  provided  the 
name  or  the  banker  presenting  the  order  is 
written  or  stamped  upon  it : — Held,  that  there 
had  been  a  wrongful  conversion  of  the  post- 
office  orders  above  mentioned  by  the  defendants ; 
and  that  the  regulations  of  the  post-office  with 
regard  to  the  payments  of  post-office  orders  pre- 
sented through  bankers  did  not  give  to  those 
instruments  in  the  hands  of  bankers  the  cha- 
ncier of  instruments  transferable  to  bearer 
by  delivery  so  as  to  bring  the  case  within  the 
doctrine  of  Goodwin  v.  Robarts  (1  App.  Cas. 
476),  and  thus  give  the  defendants  a  good  title 
to  the  post-office  orders  independently  of  the 
authority  given  to  the  plaintiffs'  secretary.  Fine 
AH  Society  v.  Union  Bank,  17  Q.  B.  D.  705  ;  56 
L.  J.,  Q.  B.  70  ;  55  L.  T.  536  ;  35  W.  R.  114  ;  51 
J.  P.  69— C  A. 

2.  Lien. 

General— Memorandum  of  Deposit.] — A  cus- 
tomer deposited  a  policy  of  life  assurance  with 
his  hankers,  accompanied  by  a  memorandum 
of  charge  to  secure  overdrafts,  not  exceeding  a 
■periled  amount.  In  an  action  to  administer 
«e  customer's  estate : — Held,  that  the  banker's 


general  lien  was  displaced,  and  the  charge  was 
limited  to  the  amount  specified.  Bowes,  In  re, 
Strathmore  (Barl)  v.  Vane,  33  Ch.  D.  586; 
66  L.  J.,  Ch.  143  ;  55  L.  T.  260  ;  35  W.  R.  166— 
North,  J. 


Deposit  of  8eourity  by  partner— Claim 


to  apply  to  Firm's  general  Account]  —  A 
partnership  firm  had  an  account  with  certain 
bankers,  and  A.,  the  senior  partner  of  the  firm, 
had  also  a  private  account  with  the  same  bankers. 
The  two  accounts  were  treated  as  separate 
accounts  by  the  bankers.  Both  the  accounts 
had  been  considerably  overdrawn,  and  certain 
deeds  had  been  deposited  with  the  bankers  by 
A.  as  security  for  the  two  accounts.  An  ex- 
tension of  credit  to  the  amount  of  500Z.  beine 
required  by  the  partnership  firm  f ora  short  period, 
A.,  in  the  name  of  his  firm,  deposited  the  lease 
of  his  house  as  security  for  the  temporary  accom- 
modation. Some  time  later  the  firm's  account 
being  above  the  limit  agreed  upon,  it  was  closed. 
The  lease  of  the  house  was  then  sold,  and  the 
proceeds  were  handed  to  the  bankers.  Sub- 
sequently A.  was  adjudicated  bankrupt,  and  his 
trustees  in  bankruptcy  brought  an  action  against 
the  bankers  to  recover  the  surplus  of  the  proceeds 
of  the  sale  after  settlement  of  the  overdraft  on 
A.'s  private  account.  The  bankers  alleged  that 
the  lease  was  deposited  with  them  by  A.  in  order 
to  secure  advances  made  to  him  upon  the  two 
banking  accounts ;  and  they  claimed,  therefore, 
to  retain  the  proceeds  of  the  sale  of  the  lease  for 
the  purpose  of  repaying  both  such  advances : — 
Held,  that  the  lease  was  deposited  by  A.  with 
the  bankers  merely  for  the  purpose  of  securing 
to  them  repayment  of  the  particular  overdraft  of 
500Z. ;  that  the  bankers  had  no  such  general  lien 
on  the  proceeds  of  sale  so  as  to  entitle  them  to 
retain  the  surplus  of  such  proceeds  in  respect  of 
the  firm's  overdrawn  amount ;  and  that  the  same 
must  accordingly  be  refunded.  Wolstenholme  v. 
Sheffield  Union  Banking  Company,  54  L.  T.  746 
— C.A. 

Building  Society— Overdrawing  Account] — 
See  Building  Society  (Borrowing  Powers). 


3.  Customers'  Accounts. 

Right  to  apply  Proceeds  to  reduce  Overdraft 
— Auctioneer.] — An  auctioneer  received  moneys 
from  a  sale  of  live  stock  and  paid  them  into  his 
private  account  at  the  defendant's  bank.  His 
account  was  overdrawn  to  an  amount  not 
exceeding  2,500/.,  but  under  an  arrangement 
which  was  then  subsisting  he  was  permitted  to 
overdraw  up  to  2,500Z.,  and  he  had  no  suspicion 
at  the  time  when  he  paid  in  such  moneys  of  any 
intention  on  the  part  of  the  bank  to  close  his 
account.  The  bank  shortly  afterwards  closed 
the  account,  and  applied  the  proceeds  of  the 
sale  in  reduction  of  the  overdraft.  The  bank 
had  notice  that  the  moneys  so  paid  in  were  sub- 
stantially the  produce  of  the  sale  of  stock. 
An  action  was  brought  by  the  plaintiff  on 
behalf  of  all  the  vendors  at  the  sale,  against  the 
bank,  to  recover  their  respective  purchase- 
moneys,  less  the  auctioneer's  commission : — 
Held,  that  the  auctioneer  paid  the  proceeds  of 
the  sale  to  his  private  account  in  the  ordinary 
course  of  business,  and  was  not  guilty  of  a 
breach  of  trust  in  so  doing,  and  that  therefore 


1 


79 


BANKER. 


80 


the  plaintiff  had  no  remedy  against  the  bank. 
Marten  v.  Roche,  63  L.  T.  946 ;  34  W.  B.  263— 
North,  J. 

Deposit  for  Special  Purpose— Payment  into 
another  Account.] — Where  a  company's  bank 
received  a  money  deposit  from  an  applicant  for 
shares  in  the  company,  and  placed  it  to  a  separate 
account  kept  for  such  deposits  ;  the  bank  having 
at  the  request  of  the  company,  and  on  receiving 
notice  of  allotment  to  the  applicant  of  the  shares 
in  respect  of  which  the  deposit  had  been  paid 
(which  allotment  was  in  fact  invalid),  transferred 
the  deposit  to  the  overdrawn  general  account  of 
the  company,  with  knowledge  that  a  meeting  had 
been  held  with  the  object  of  winding  up  the  com- 
pany, and  that  its  reconstruction  was  contem- 
plated, and  in  spite  of  notice  from  the  applicant 
not  to  part  with  the  deposit  without  his  au- 
thority : — Held,  that  the  bank  was  liable  to 
repay  the  amount  of  the  deposit  to  the  ap- 
plicant. Greentoell  v.  National  and  Provincial 
Bank,  1  C.  &  B.  66 — Denman,  J. 

Cheques — Course  of  Business.] — Where  a  bank 
has,  as  a  matter  of  fact,  always  treated  cheques 
paid  in  by  a  particular  customer  as  cash  before 
clearance,  it  cannot,  as  against  such  customer, 
set  up  a  usage  entitling  it  to  exercise  a  discretion 
as  to  whether  each  particular  cheque  should  be 
so  treated.  Armfiela  v.  London  and  Westminster 
Bank,  1  C.  &  E.  170— Cave,  J. 

Dishonouring  —  Damages.]  —  Where 

bankers,  owing  to  a  mistake,  dishonoured  a 
cheque  of  a  customer,  given  in  course  of  business, 
which  mistake  was  subsequently  satisfactorily 
explained  to  the  payee,  but  still  the  payee 
declined  to  deal  further  with  the  customer : — 
Held,  in  an  action  for  damages  against  the 
bank,  that  the  customer  could  not  recover 
damages  for  the  loss  of  the  payee's  custom. 
Morris  v.  London  and  Westminster  Bank,  1 
C.  &  E.  498— Day,  J. 

Cashing  Crossed  Cheque  with  unauthorised 
Signature  per  pro.]— See  Bills  of  Exchange 
(Cheques). 

Guarantee — Current  Account— Death  of  Suroty 
— Appropriation  of  Payments.] — S.  guaranteed 
the  account  of  T.  at  a  bank  by  two  guarantees, 
one  for  160/.,  the  other  for  400?.  By  the  terms 
of  the  guarantees  the  surety  guaranteed  to  the 
bank  "  the  repayment  of  all  moneys  which  shall 
at  any  time  be  due  from  "  the  customer  "  to 
yon  on  the  general  balance  of  his  account  with 
you  ; "  the  guarantee  was  moreover  to  be  "  a 
continuing  guarantee  to  the  extent  at  any  one 
time  of  "  the  sums  respectively  named,  and  was 
not  to  be  considered  as  wholly  or  partially  satis- 
fied by  the  payment  at  any  time  of  any  sums  due 
on  such  general  balance ;  and  any  indulgence 
granted  by  the  bank  was  not  to  prejudice  the 
guarantee.  S.  died,  leaving  T.  and  another  exe- 
cutors. The  bank  on  receiving  notice  of  his  death, 
without  any  communication  with  the  executors 
beyond  what  would  appear  in  T.'s  pass-book, 
closed  T.'s  account,  which  was  overdrawn,  and 
opened  a  new  account  with  him,  in  which  they 
did  not  debit  him  with  the  amount  of  the  over- 
draft, but  debited  him  with  interest  on  the 
same,  and  continued  the  account  until  he  went 
into  liquidation,  when  it  also  was  overdrawn  : — 


Held,  that  there  was  no  contract,  express  or  im- 
plied, which  obliged  the  debtor  and  creditor  to 
appropriate  to  the  old  overdraft  the  payments 
made  by  the  debtor  after  the  determination  of  the 
guarantee,  and  that  the  bank  was  entitled  to 
prove  against  the  estate  of  S.  for  the  amount  of 
the  old  overdraft,  less  the  amount  of  the  dividend 
which  they  had  received  on  it  in  the  liquidation. 
Sherry,  In  re,  London  and  County  Banking 
Company  v.  Terry,  25  Ch.  D.  692  ;  53  L.  J.,  Ch. 
404  ;  50  L.  T.  227  ;  32  W.  R.  394— C.  A. 

Advances — Construction — Parol  Evidence 

—Discounting  Bills  and  Notes- Surety,  Bights 
of— (Jiving  Time  1 — G.,  knowing  that  his  son  C, 
who  was  a  stock-broker  in  London,  required 
advances  for  the  purpose  of  his  business,  gave 
to  a  bank  a  letter  of  guarantee,  undertaking  to 
guarantee  any  advances  made  to  C.  to  the 
extent  of  1,0002.  After  the  death  of  G.,  the 
bank  sought  to  prove  on  his  estate  in  respect 
of  four  items: — 1,  a  promissory  note  of  C.  to 
the  bank  for  4402.,  dated  the  30th  August, 
1880,  at  six  months ;  2,  a  sum  of  32/.,  balance 
due  on  a  bill  of  exchange  drawn  by  D.,  and 
accepted  by  E.,  dated  the  6th  October,  1880,  at 
six  months  ;  3,  a  promissory  note  for  490/.,  of  B. 
to  the  bank,  dated  the  18th  October,  1880,  at  six 
months,  and  4,  11.  6s.  6d.,  the  overdraft  of  C.'s 
current  account.  The  promissory  note  for  4401. 
had  been  renewed  more  than  once,  and  this  note, 
and  the  renewals,  and  the  bill  of  exchange  had 
been  placed  to  the  credit  of  C.'s  account  with 
the  bank  while  current,  and  transferred  to  the 
debit  side  of  his  account  when  due,  discount 
being  charged  in  cases  of  renewal  to  C.'s  account. 
C.  dicw  upon  the  bank  to  the  full  amount  for 
which  he  was  thus  credited.  C.'s  name  was  not 
on  the  bill  of  exchange,  but  the  bank  cashed  it 
on  his  guarantee,  and  the  proceeds  were  placed 
to  C.'s  credit.  The  promissory  note  for  490/. 
represented  a  note  given  to  the  bank  by  B. 
some  years  previously  to  the  date  of  G.'s 
guarantee,  the  amount  of  which  had  been  then 
advanced  to  C.  No  entry  of  this  note  or  its 
renewals  appeared  in  C.'s  current  account, 
although  the  amount  of  the  discounts  on  it 
were  charged : — Held,  (1),  that  to  aid  in  the 
construction  of  the  guarantee,  parol  evidence 
was  admissible  of  the  circumstances  under  which 
it  was  given  ;  (2),  that  under  the  circumstances, 
the  guarantee  was  a  continuing  guarantee,  ex- 
tending to  advances  made  after  its  date;  (3), 
that  "  advances "  was  not  confined  to  cash 
advances  or  overdrafts,  but  included  the  pro- 
ceeds of  bills  or  notes  discounted  by  the  bank, 
and  placed  to  C.'s  credit ;  (4),  that  the  right  of 
the  bank  to  sue  on  bills  and  notes  being  sus- 
pended during  their  currency  was  not  a  giving 
of  time  within  the  rule  which  discharges  a 
surety ;  but  that,  whether  each  renewal  was 
equivalent  to  a  fresh  and  independent  advance 
or  not,  the  amount  advanced  by  the  bank  to  C. 
was  within  the  guarantee ;  (5),  that  the  bank 
could  not  sustain  against  G.'s  estate  a  claim 
upon  the  note  for  490/.  Grahame  v.  Grakame, 
19  L.  R.,  Ir.  249— V.-C. 


4.  Bank  Notes. 

Issue  of— Penalties.] — By  s.  11  of  the  Bank 
Charter  Act,  1844,  it  shall  not  be  lawful  for 
any  banker  to  "  issue "  any  note  payable  on 


81 


BANKRUPTCY. 


82 


demand,  except  that  any  banker  carrying  on 
business  as  such  on  the  6th  of  May,  1844,  and 
then  lawfully  issuing  his  own  notes,  may  con- 
tinue to  issue  them  under  specified  conditions  ; 
and  by  a,  12,  if  any  banker,  entitled  after  the 
passing  of  the  act  to  issue  bank  notes,  "shall 
cease  to  carry  on  the  business  of  a  banker,"  it 
shall  not  be  lawful  for  him  to  issue  such  notes  at 
any  time  thereafter.    In  1880  a  firm  of  bankers 
entitled  to  issue  their  own  notes  under  the  ex- 
ception in  s.  11,  sold  their  business  to  a  limited 
liability  company  upon  the  following  terms  :— 
The  company  took  over  the  whole  of  the  business 
as  a  going  concern,  and  the  goodwill,  except  and 
reserving  to  the  firm  tbe  right  to  issue  their  own 
notes,  but  including  in  the  sale  and  purchase 
such  benefit  of  the  issue  as  was  thereby  agreed 
to  be  given  to  the  company ;  the  firm  were  to 
issue  their  notes  in  the  same  form  as  theretofore, 
but  through  the  company's  officers  only,  and 
might  nominate  those  officers  and  make  the  re- 
turns required  by  statute  through  them :  the 
company  were  to  allow  and  pay  the  firm  21.  per 
cent,  interest  on  the  amount  of  all  notes  from 
time  to  time  in  circulation  :  for  the  purposes  of 
the  issue  only  the  firm  might  continue  to  use 
their  accustomed  name,  but  they  were  not  to 
assign  their  rights,  nor  to  take  new  partners  for 
the  purpose  of  continuing  the  issue  without  the 
consent  of  the  company,  nor  to  carry  on  the  busi- 
ness of  banking  within  a  defined  district  without 
the  like  consent,  except  so  far  as  related  to  the 
issue  of  their  notes  under  the  agreement :  if  the 
right  of  issue  should  at  any  time  be  taken  away 
from  the  firm  they  were  to  pay  any  compensation 
they  might  receive  to  the  company,  unless  the 
company  should  get  an  equal  right  of  issue,  in 
which  case  the  firm  might  retain  the  compensa- 
tion :  if  the  company  acquired  a  right  to  issue 
their  own  notes,  the  firm's  right  of  issue  was  to 
cease.   When  the  business  was  taken  over  by  the 
company,  a  large  number  of  the  firm's  notes 
being  in  circulation,  the  amount  of  them  was 
deducted   from    the   purchase-money,  and  the 
notes,  when  presented  for  payment,  were  cashed 
by  the  company,  and  reissued  by  them.    Notes 
in  hand  when  the  business  was  taken  over  were 
treated  as  cash  lent  by  the  firm  to  the  company. 
Ruly  returns  were  made  by  the  company  shew- 
ing the  number  of  the  firm's  notes  in  circulation, 
and  twice  a  year  the  company  paid  21.  per  cent. 
interest  to  the  firm  on  the  amount  so  ascertained. 
On  an  information  against  the  firm  and  the  com- 
pany for  penalties  in  respect  of  their  having 
issued  the  notes  contrary  to  the  provisions  of  the 
act :— Held,  that  the  company  had  "issued"  the 
notes  within  the  meaning  of  s.  11  of  the  Bank 
Charter  Act,  1844  ;  that  the  firm,  in  issuing  the 
notes,  were  not  protected  by  the  exception  in 
a.  11,  because  after  the  making  of  the  agreement 
they  had  "ceased  to  carry  on  the  business  of 
hankers "  within  the  meaning  of  s.   12;    and 
therefore  that  all  the  defendants  were  liable. 
Mttnev-Gentral  v.  Birkbeclt,  12  Q.  B.  D.  605 ; 
S3  L.  J.f  Q.  B.  378 ;  51  L.  T.  199;  32  W.  B. 
**-D. 

5.  Savings  Banks. 

Ofieer  of  Bank — Bight  of  preference— Bank- 
nptey  Act—  Administration  of  Estate  in  Chan- 
try Division.] — The  provision  of  s.  14  of  the 
Savings  Bank  Act,  1863,  by  which  a  savings 
tak  is  enabled  to  obtain  payment  of  a  debt 


due  to  it  from  an  officer  of  the  bank  in  prefer- 
ence to  the  other  creditors  of  the  officer,  is 
repealed  by  s.  40  of  the  Bankruptcy  Act,  1883, 
so  far  as  regards  administration  in  bankruptcy, 
but  not  as  regards  the  administration  of  an 
estate  in  the  Chancery  Division ;  and  s.  10  of 
the  Judicature  Act,  1875,  does  not  incorporate 
the  provisions  of  8.  40  of  the  Bankruptcy  Act, 
1883,  into  the  rules  of  administration  of  an 
estate  in  the  Chancery  Division  so  as  to  take 
away  such  right  of  preference  of  a  savings  bank. 
Williams,  In  re,  Jones  v.  Williams,  36  Ch.  D. 
573  ;  57  L.  J.,  Ch.  264  j  57  L.  T.  756 ;  36  W.  R. 
34r— North,  J. 

In  the  administration  of  the  insolvent  estate 
of  an  officer  of  a  savings  bank  in  the  Chancery 
Division,  the  bank  is  therefore  entitled  to  pay- 
ment of  a  debt  due  to  it  in  preference  to  the 
other  creditors.  But  the  court  may,  under  the 
125th  section  of  the  Bankruptcy  Act,  1883,  on 
the  application  of  a  creditor,  order  a  transfer  of 
the  proceedings  to  the  Court  of  Bankruptcy,  lb. 


BANKRUPTCY. 

I.  Jurisdiction,  84. 

1L  Officers  op  the  Court. 

1.  Registrars,  87. 

2.  Official  Receiver,  88. 

3.  Trustees,  91. 

a.  Appointment,  91. 

b.  Bemoval,  91. 

c.  Order  to  Account   and    Pay 

Money,  92. 

d.  Actions  by,  93. 

e.  Liability  for  costs,  94. 

/.  Other  Points  relating  to,  94. 

III.  Who  may  be  Bankrupt,  95. 

IV.  Act  of  Bankruptcy,  96. 
V.  Debtor's  Summons,  101. 

VI.  Bankruptcy  Notice,  Petition  and 

Receiving  Order. 

1.  Parties  to,  102. 

2.  Amount  and  Nature  of  Debt,  105. 

3.  Powers  of  the  Court,  109. 

4.  Practice. 

a.  In  General,  111. 

b.  Staying  Proceedings,  113. 

c.  Application  to  Rescind  Order, 

114. 

VII.  Adjudication,  117. 

VIII.  Property. 

1.   What  passes  to  Trustee. 

a.  Leaseholds — Disclaimer,  119. 

b.  Order  and  Disposition,  124. 

c.  Property  appropriated  to  meet 

Bills  of  Exchange,  127. 

d.  Property  held  by  Bankrupt  as 

Trustee,  131. 


88 


BANKRUPT  C  Y— Jurisdiction. 


84 


e.  Salary  and  Income,  132. 

/.  Materials  being  used  by  Bank- 
rupt in  Execution  of  Con- 
tracts, 133. 

g.  Of  Married  Women,  134. 

h.  In  other  Cases,  135. 
2.  Proceedings  for    Discovery   and 

Protection  of  Property,  136. 

IX.  Pboop  of  Debts. 

1.  Debts  entitled  to  Priority,  139. 

2.  In  respect  of  what  Debts,  141. 

3.  By     and     against      Particular 

Persons,  143. 

4.  Practice  on  Proof,  148. 

5.  Expunging  Proof,  150. 

6.  Rejection  of  Proof  ,  151. 

X.  Mutual  Dealings— Set- Opf,  152. 

XI.   Invalid    and    Protected    Trans- 
actions. 

1.  Executions,  154. 

2.  Distresses,  159. 

3.  Fraudulent  Conveyances,  159. 

4.  Fraudulent  Preferences,  161. 

5.  Assignments  of  Property,  164. 

6.  Other  Dealings  by  Bankrupt,  166. 

7.  Dealings  with  Property  by  Agent, 

168. 

XII.    Composition,     Liquidation     and 
Schemes  of  Arrangement. 

1.  Under  the  Bankruptcy  Act,  1883, 

169. 

2.  Under  Prior  Statutes,  174. 

a.  Liquidation,  174. 

b.  Composition,  176. 

XIII.  Composition  Deeds,  178. 

XIV.  The    Discharge    and    Re-opening 

Bankruptcy. 

1.  Discharge  under  the  Bankruptcy 

Act,  1883,  180. 

2.  Discharge  under  Prior  Statutes, 

184. 

3.  Re-opening  Bankruptcy,  185. 

4.  Effect  of  Discharge,  185. 

XV.  Offences,  187. 
XVI.  The  Bankrupt,  187. 
XVII.  Effect  of  Bankruptcy,  190. 

XVIII.  Practice. 

1.  Generally,  198. 

2.  Staying  Proceedings,  194. 

3.  Transfer  of  Proceedings,  196. 

4.  Evidence,  197. 

5.  Costs,  198. 

XIX.  Appeal. 

1.  Jurisdiction,  201. 

2.  Parties,  201. 

3.  In  what  Cases,  202. 

4.  Notice  of— Time  for,  204. 

5.  TJw  Deposit — Security  for  Costs, 

205. 


XX. 


6.  Leave  to  Appeal,  206. 

7.  Costs,  207. 

8.  Other  Points,  208. 

Administration      of     Insolvent 
Estates  in  Bankruptcy,  209. 


I.  JTOI8DICTI0N. 

Claims  arising  out  of  the  Bankruptcy- 
Strangers.] — The  jurisdiction  conferred  on  the 
Court  of  Bankruptcy  by  sub-s.  1  of  s.  102  of  the 
Bankruptcy  Act,  1883,  is  identical  with  that 
conferred  on  that  court  by  8.  72  of  the  Bank- 
ruptcy Act,  1869.  Where,  therefore,  there  are 
conflicting  claims  to  any  part  of  a  bankrupt's 
property,  between  parties  who  are  strangers  to 
the  bankruptcy,  and  in  which  the  trustee  in 
bankruptcy  has  no  interest,  the  Court  of  Bank- 
ruptcy will  decline  to  adjudicate  upon  the  ques- 
tions at  issue.  Beesty,  Ex  parte,  Lowenthd,  1% 
re,  13  Q.  B.  D.  238 ;  53  L.  J.,  Q.  B.  524 ;  51 
L.  T.  431  ;  33  W.  R.  138 ;  1  M.  B.  B.  117— 
Cave,  J. 

The  bankrupt  carried  on  business  as  a  corn- 
merchant  at  Southampton,  where  his  stores 
were  under  the  charge  of  a  manager.  On 
the  8th  of  June  the  appellants,  to  whom  the 
bankrupt  was  largely  indebted  for  wheat  then  in 
his  stores,  were  informed  that  the  bankrupt  was 
in  difficulties,  and  thereupon  arranged  with  the 
manager  to  repurchase  the  wheat  on  credit  at  a 
price  exceeding  2002.  The  wheat  was  accord- 
ingly delivered  to  them  on  the  following  day. 
This  sale  was  unknown  to  the  bankrupt,  who  on 
the  8th  of  June  sent  out  by  post  notices  of  sus- 
pension, which  were  delivered  to  the  manager  at 
Southampton  and  to  the  appellants-  on  the 
following  morning : — Held,  that  under  s.  102  of 
the  Bankruptcy  Act,  1883,  it  was  competent 
for  the  county  court  acting  in  bankruptcy  to 
adjudicate  upon  a  claim  by  the  bankrupt's 
trustee  for  the  return  of  the  wheat  by  the 
appellants  or  payment  of  its  value,  for  it  must 
be  taken  to  be  "  a  claim  arising  out  of  the  bank- 
ruptcy." Scott,  Ex  parte,  Hawke,  In  re,  16 
Q.  B.  D.  503  ;  56  L.  J.,  Q.  B.  302  ;  64  L.  T.  54 ; 
34  W.  R.  167 ;  3  M.  B.  B.  1— D.  See,  also, 
Ellis,  Ex  parte,  Crowthcr,  In  re,  20  Q.  B.  D. 
38  ;  57  L.  J.,  Q.  B.  67  ;  58  L.  T.  115  ;  36  W.  B. 
189  ;  4  M.  B.  R.  305— D. 


Death  of  Debtor— Effect  o£] — A  debtor  having 
died  two  days  after  filing  his  petition  : — Held, 
that  the  bankruptcy  proceedings  might  continue 
as  though  the  debtor  were  alive.  Semble,  that 
if  under  the  above  circumstances,  tue  debtor's 
representatives  make  arrangements  with  the 
creditors,  the  court  will  use  the  discretion  given 
to  it  by  s.  108  of  the  Bankruptcy  Act,  1883. 
Sharp,  Ex  parte,  Walker,  In  re,  54  L.  T.  682 ; 
34  W.  R.  550  ;  3  M.  B.  R.  69— D. 

Where  a  debtor  against  whom  a  creditors' 
petition  in  bankruptcy  has  been  presented  dies 
before  service  of  the  petition  upon  him,  there  is 
no  power  under  s.  108  of  the  Bankruptcy  Act, 
1883,  or  the  Bankruptcy  Rules,  to  dispense  with 
service  or  to  order  substituted  service  of  the 
petition,  and  the  bankruptcy  proceedings  must 
necessarily  be  stayed.  Hill,  Ex  parte,  Easy,  In 
re,  19  Q.  B.  D.  538  ;  56  L.  J.,  Q.  B.  624  ;  35 
W.  R.  819  ;  4  M.  B.  R.  281— C.  A. 


85 


BANKRUPTCY— Jurisdiction. 


86 


High  Court— Judgment  Summons.  ] — The  High 
Court  has  authority  to  issue  a  judgment  sum- 
mons on  a  judgment  of  the  High  Court  where 
the  debtor  does  not  reside  within  its  bankruptcy 
jurisdiction.  Nicholson,  Ex  parte,  Stone,  In  re, 
1  M.  R  R  177— Cave,  J. 

Govt  ordering  Prosecution  of  Bankrupt — 
Setter's  Petition.] — Where  a  bankrupt  presents 
his  own  petition,  a  court  exercising  jurisdiction 
in  bankruptcy  has  no  power  since  the  coming 
into  operation  of  the  Bankruptcy  Act,  1883,  to 
order  toe  trustee  to  prosecute  him  for  any  of  the 
statutable  misdemeanours  created  by  8.  11, 
rab-s<i  13, 14,  and  15,  of  the  Debtors  Act,  1869. 
Woed,  Ex  parte,  Burden,  In  re,  21  Q.  B.  D.  24  ; 
57  L.  J.,  Q.  B.  570  ;  59  L.  T.  149  ;  36  W.  R.  896  ; 
5  M.  B.  R.  166— D. 

Charging  Order  whether  made  under  Bank- 
ruptcy or  Ordinary  Jurisdiction— Power  to 
BsVisw.] — In  an  action  in  the  Chancery  Division, 
by  one  partner  against  another,  for  a  dissolution 
of  the  partnership,  judgment  was  given  for  a 
dissolution,  and  the  appointment  of  a  receiver 
of  the  assets  of  the  partnership.  Both  the 
partners  were  afterwards  adjudged  bankrupt ; 
the  action  was  transferred  to  the  Queen's  Bench 
Division  in  bankruptcy,  and  the  judge  having 
jurisdiction  in  bankruptcy  made  an  order  under 
23  k  24  Vict  c.  127,  s.  28,  charging  the  costs  of 
the  plaintiff's  solicitor  on  the  funds  in  the  hands 
of  the  receiver.  Before  this  order  was  made, 
the  landlord  of  the  premises  in  which  the  bank- 
rupts had  carried  on  their  business  had  given 
notice  to  the  receiver  of  a  claim  for  rent  due  to 
him,  but  had  not  attempted  to  distrain.  The 
judge  was  not  informed  of  this  claim  before  he 
made  the  order,  and  he  subsequently  made  a 
farther  order  by  which  he  directed  the  receiver 
to  pay  the  rent  due  to  the  landlord,  and  to  pay 
the  balance  in  his  hands  to  the  solicitor : — Held, 
that  the  charging  order  was  not  made  by  the 
judge  in  the  exercise  of  his  bankruptcy  jurisdic- 
tion, and  that  he  had  consequently  no  power  to 
rescind  or  vary  it  under  a  104  of  the  Bankruptcy 
Act,  1883.  Brown,  Ex  parte,  Snffield  and  Watts, 
h  re,  20  Q.  B.  D.  693 ;  58  L.  T.  911  ;  36  W.  R. 
»4 ;  5  M.  B.  R.  83—  C.  A. 

Debtor  mutt  have  English  Domicil.]—  See 
post,  col.  96. 

County  Court— Order,  of  High  Court  to  Pay 
Carta— Payment  by  Instalments.]— Where  the 
High  Court  has  simply  made  an  order  for  the 
payment  of  costs,  or  given  judgment  for  the 
payment  of  a  sum  of  money,  a  county  court 
can,  by  virtue  of  the  Debtors  Act,  1869,  8.  5,  and 
the  Bankruptcy  Act,  1883,  s.  103,  sub-s.  4,  enforce 
that  order  or  judgment  by  directing  payment  of 
the  amount  thereof  by  instalments.  A  county 
court  cannot,  however,  rescind  or  vary  an  order 
of  the  High  Court  for  the  payment  of  a  judg- 
ment debt  by  instalments  since  in  such  a  case 
the  High  Court  has  considered  and  adjudicated 
apoo  the  question  of  the  debtor's  ability  to  pay 
forthwith.  Wanker  v.  Elliot  (1  C.  P.  D.  169) 
explained.  Addington,  Ex  parte,  Ives,  In  re, 
W  Q.  B.  D.  665  ;  55  L.  J.,  Q.  B.  246  ;  34  W.  R. 
5W ;  3  M.  B.  R.  83— Cave,  J. 

- — Alleged  Fraudulent  Deed— Question  of 
w*etar--Large  Amount  involved.] — Section 


102  of  the  Bankruptcy  Act,  1883,  defines  the 
general  powers  of  the  courts  in  bankruptcy,  and 
goes  on  to  enact,  "  provided  that  the  jurisdiction 
hereby  given  shall  not  be  exercised  by  the 
county  court  for  the  purpose  of  adjudicating 
upon  any  claim  not  arising  out  of  the  bank- 
ruptcy, which  might  heretofore  have  been  en- 
forced by  action  in  the  High  Court,  unless  all 
parties  to  the  proceedings  consent  thereto,  or  the 
money,  money's  worth,  or  right  in  dispute,  does 
not,  in  the  opinion  of  the  judge,  exceed  in  value 
two  hundred  pounds."  A.  was  tenant  under  a 
lease  to  H.,  who  was  also  his  mortgagee.  In 
May,  1885,  certain  transactions  were  entered 
into  between  H.  and  A.  with  a  view  of  assisting 
A.,  who  was  then  in  money  difficulties.  A.  be- 
came bankrupt,  and  a  motion  was  made  in  the 
county  court  by  his  trustee  in  bankruptcy  to 
have  these  transactions  declared  fraudulent  and 
void  as  against  the  trustee.  The  amount  at 
stake  was  13,7002.  On  the  hearing  objection 
was  taken  that  the  county  court  had  no  juris- 
diction as  the  amount  at  stake  was  very  large, 
and  a  question  of  character  was  involved.  The 
county  court  judge  decided  that  he  had  juris- 
diction, but  adjourned  the  hearing  to  enable  this 
appeal  to  be  brought : — Held,  on  appeal,  that 
assuming  the  county  court  judge  had  jurisdic- 
tion, yet  that  he  ought  not  to  exercise  it  unless 
there  were  special  circumstances  showing  him 
he  ought  to  do  so,  and  that  here  there  were  no 
such  Bpecial  circumstances.  Hazlehurst,  Ex 
parte,  Beswieh,  In  re,  58  L.  T.  591 ;  5  M.  B.  R. 
105— D. 


Consent  to  Jurisdiction — Mistake.] — By 


a  proviso  to  s.  102  of  the  Bankruptcy  Act,  1883, 
it  is  provided  that "  the  jurisdiction  hereby  given 
shall  not  be  exercised  by  the  county  court  for 
the  purpose  of  adjudicating  on  any  claim,  not 
arising  out  of  the  bankruptcy,  which  might 
heretofore  have  been  enforced  by  action  in  the 
High  Court,  unless  all  parties  to  the  proceedings 
consent  thereto,"  &c.  Consent  to  the  jurisdic- 
tion was  given  in  ignorance  of  the  fact  that  an 
order  for  summary  administration  bad  been 
made  : — Held,  that  the  consent  to  the  jurisdic- 
tion was  vitiated  by  the  fact  that  it  had  been 
given  under  a  mistaken  impression  of  facts  not 
easily  to  be  ascertained.  Sergeant,  Ex  parte, 
Sandars,  In  re,  52  L.  T.  516— D. 


Power  to  Restrain  Proceedings  in  High 


Court.] — Under  the  Bankruptcy  Act,  1883,  a 
county  court  sitting  in  bankruptcy  has  no  power 
to  restrain  proceedings  in  an  action  in  the  High 
Court.  Reynolds,  Ex  parte,  Barnett,  In  re,  15 
Q.  B.  D.  169  ;  54  L.  J.,  Q.  B.  354  ;  53  L.  T.  448  ; 
33  W.  R.  715  ;  2  M.  B.  R.  147— C.  A. 

Question  whether  to  he  determined  in  Bank- 
ruptcy or  High  Court.]— See  infra,  Practice 
(Tbansfeb  of  Proceedings). 

Jurisdiction  of  Judge  to  review  Order  of 
Registrar.] — The  power  given  to  the  court  by 
8.  104  of  the  Bankruptcy  Act,  1883,  "to  review, 
rescind,  or  vary  any  order  made  by  it,"  is  only 
given  to  the  court  by  which  the  order  is  in  fact 
made.  Where,  therefore,  an  order  dismissing  a 
bankruptcy  petition  was  made  by  the  registrar 
of  a  county  court : — Held,  that  the  county  court 
judge  had  no  jurisdiction  to  review,  rescind,  or 
vary  the  registrar's  order.    Maugham,  Ex  parte, 


87 


BANKEUPTCY— Officers  of  the  Court. 


88 


Maugham,  In  re,  21  Q.  B.  D.  21  ;  57  L.  J.,  Q.  B. 
487  ;  59  L.  T.  253  j  36  W.  R.  846  ;  5  M.  B.  R. 
152— D. 

Where,  on  the  refusal  of  an  application  by  the 
registrar,  application  was  subsequently  made  to 
the  judge  sitting  in  bankruptcy  to  review  the 
decision  : — Held,  that  there  was  no  power  to 
accede  to  the  request,  and  that  in  the  event  of  the 
registrar  declining  to  review  his  own  decision, 
the  proper  course  was  by  way  of  appeal  to  the 
Court  of  Appeal.  Moore,  In  re,  2  M.  B.  B.  78 — 
Cave,  J. 

Power  of  Court  to  go  behind  Judgment.]— &# 
post,  cols.  110,  111. 


II.  OFFICERS  OF  THE  COTJET. 

i 

1.  Registrars, 

2.  Official  Receiver. 

3.  Trustees. 

1.  REGISTRARS. 

Jurisdiction  —  Pending  Proceedings.]  —The 
jurisdiction  which  registrars  in  bankruptcy  had 
by  delegation  or  otherwise  under  the  Bankruptcy 
Act,  1869  (32  k  33  Vict,  a  71),  is  preserved  by 
46  &  47  Vict.  c.  52,  s.  169,  sub-s.  3,  in  respect  of 
proceedings  pending  when  the  latter  act  came 
into  operation  on  the  1st  of  January,  1884  ;  and 
rule  264  of  the  Bankruptcy  Rules,  1883,  which 
provides  for  the  exercise  of  their  jurisdiction,  is 
a  valid  rule,  and  is  properly  made  pursuant  to 
s.  127  of  the  Bankruptcy  Act,  1883.  Edwards, 
Ex  parte,  Home,  In  re,  54  L.  J.,  Q.  B.  447 ;  2 
M.  B.  R.  203— C.  A. 


Delegation    of    Judge's   Authority.]  — 


H.  J.  died  in  1871,  and  application  for  letters  of 
administration  was  made  by  C.  and  E.  J.  Large 
sums  of  money  were  required  for  the  purposes  of 
administration,  which  were  paid  to  B.  by  C.  and 
E.  J.,  and  B.  paid  3,1602.  to  the  Inland  Revenue 
Office  for  probate  purposes.  E .  J.  was  adjudicated 
a  bankrupt  in  1875,  and,  in  1878,  B.  applied  for  a 
return  of  the  surplus.  Upon  an  application  to 
the  registrar  by  the  trustee  in  bankruptcy  that 
the  said  moneys  should  be  paid  to  him,  it  was 
objected  that  under  the  terms  of  the  Bankruptcy 
Act,  1883,  the  registrars  had  no  jurisdiction  in 
pending  business.  The  question  was  referred  to 
the  judge  for  decision  : — Held,  that  the  registrar 
had  jurisdiction,  and  that  the  application  had 
been  rightly  made  to  him  and  must  be  remitted 
to  him.  Jones  v.  Cheverton,  49  L.  T.  745  ;  1  M. 
B.  R.  17— Mathew,  J. 

Duty  of  Registrar.]— It  is  the  duty  of  the 
registrar  to  hear  and  decide  those  cases  brought 
before  him,  and  which  he  is  not  prevented  from 
so  deciding  by  any  order  of  the  judge  or  by  the 
rules  or  statute.  The  registrar  ought  not  to 
adjourn  any  such  case  for  the  purpose  of  its 
being  heard  before  the  judge  unless  there  is  good 
cause  or  the  case  presents  points  of  novelty  or 
difficulty.  Foster,  Ex  parte,  Webster,  In  re,  3 
M.  B.  R.  132— Cave,  J. 

It  is  the  duty  of  the  registrar  to  hear  and 
determine  an  application  made  ex  parte  for  an 
injunction,  even  though  at  the  time  of  such 
application  the  judge  in  bankruptcy  may  be 
sitting.    Brooks,  In  re,  3  M.  B.  R.  62 — Cave,  J. 


Roquest  from  Foreign  Court  in  aid- 
Order  to  hand  over  Books.]— An  application  for 
an  order  to  hand  over  books  and  papers  under 
s.  118  of  the  Bankruptcy  Act,  1883,  which  pro- 
vides that  every  British  court  having  jurisdiction 
in  bankruptcy,  or  insolvency,  shall  be  auxiliary 
to  each  other,  ought  to  be  made  to  the  registrar 
and  not  to  the  judge  in  court.  Although  the 
registrar  may  in  a  case  of  difficulty  refer  a 
matter  to  the  judge  in  bankruptcy  for  his  deci- 
sion, yet  there  is  no  authority  for  him  without 
reason  to  delegate  his  work  to  the  judge,  and 
unless  a  matter  is  especially  reserved  to  the 
judge,  or  some  difficulty  arises,  the  registrar 
ought  to  deal  with  it.  Knight,  Ex  parte,  Fir- 
bank,  In  re,  4  M.  B.  R.  50— Cave,  J. 


Apprenticeship   Premium — Application 


for  return  of]— An  application  under  s.  41  of 
the  Bankruptcy  Act,  1883,  for  the  return  of  an 
apprenticeship  premium  paid  to  the  bankrupt  as 
a  fee,  ought  to  be  made  to  the  registrar  and  not 
to  the  judge  in  court.  Gould,  Ex  parte,  Richard- 
son, In  re,  35  W.  R.  381  ;  4  M.  B.  R.  47- 
Cave,  J. 

Jurisdiction  of  Judge  over  Order  of  Regis- 
trar.]— See  ante,  cols.  86,  87. 

Refusal  to  carry  out  Order  of  Court  of 
Appeal — Procedure  to  compel  Obedience.]  — 
Upon  appeal  from  a  county  court  in  a  bank- 
ruptcy proceeding,  the  divisional  court  allowed 
the  appeal,  and  ordered  money,  which  had  been 
paid  into  the  county  court  to  abide  the  result  of 
the  appeal,  to  be  paid  out  to  the  appellant 
The  divisional  court  also  gave  leave  to  appeal  to 
the  Court  of  Appeal,  but  made  no  order  for  a 
stay  of  proceedings.  The  registrar  of  the  county 
court  having  refused  to  pay  out  the  money  until 
the  time  for  appealing  to  the  Court  of  Appeal 
had  elapsed  : — Held,  that  the  refusal  was  unjusti- 
fiable, but  that,  the  registrar  being  an  officer  of 
the  county  court,  the  divisional  court  had  no 
jurisdiction  over  him  personally  to  enforce  com- 
pliance with  the  order.  Croydon  County  Court 
{Registrar),  Ex  parte,  or  Briton,  Ex  parte, 
Wise,  In  re,  17  Q.  B.  D.  389  ;  65  L.  J.,  Q.  B. 
362  ;  54  L.  T.  722  ;  34  W.  R.  711  ;  3  M.  B.  R.  174 
— C.  A. 

Fees— County  Court— Discharge  of  Bankrupt 
— Consent  Judgment  for  over  £60.] — Where  a 
county  court  grants  a  bankrupt  his  discharge 
subject  to  his  consenting  to  judgment  being 
entered  up  against  him  by  the  trustee  for  the 
balance  of  debts  provable  under  the  bankruptcy, 
the  county  court  has  jurisdiction  under  r.  240  of 
the  Bankruptcy  Rules,  1886,  to  enter  up  such 
judgment,  although  the  amount  exceeds  50/.; 
but,  the  rule  being  silent  as  to  fees,  the  registrar 
is  not  entitled  to  any  fee  in  respect  of  such  judg- 
ment. Howe,  In  re,  18  Q.  B.  D.  573  ;  56  L.  J., 
Q.  B.  257  ;  35  W.  R.  380 ;  4  M.  B.  R.  57- 
Cave,  J. 

2.  OFFICIAL  RECEIVER. 

Acting  at  Trustee— Power  to  sell  Bankrupti 

Property.] — Under  the  Bankruptcy  Act,  1883 
(46  &  47  Vict.  c.  52),  the  official  receiver,  when 
acting  as  trustee  in  a  bankruptcy  in  the  interval 
between  the  adjudication  and  the  appointment 


89 


BANKRUPTCY— Officers  of  the  Court. 


90 


of  t  trustee  by  the  creditors,  has  power  to  sell ' 
the  bankrupt's'  property,  though  it  be  not  of  a 
perishable  nature.  Turquand  v.  Board  of  Trade, 
II  App.  Cas,  286 ;  55  L.  J.,  Q.  B.  417  ;  55  L.  T. 
30— H.  L  (E.).  Affirming  S.  C,  sub  nom.  Tur- 
fuW,  Ex  parte,  Parker*,  In  re,  2  M.  B.  R.  158 
-C.A 

Power  to  Compromise.]  —  A  debtor  on  6th 
May,  presented  his  own  petition  upon  which  a 
receiving  order  was  made,  and  on  7th  May  the 
official  ieeeiTer  took  possession  of  the  debtor's 
property.  On  30th  June  a  compromise  was 
entered*  into  between  the  official  receiver  and 
two  holders  of  bills  of  sale  over  the  property  of 
the  debtor.  On  9th  July  the  debtor  was  adjudi- 
cated bankrupt,  and  on  23rd  July  the  certificate 
of  approval  of  the  trustee  in  the  bankruptcy  was 
panted  by  the  Board  of  Trade.  The  trustee 
nbsequentiy  applied  to  the  court  to  set  aside 
the  compromise : — Held,  that  on  its  appearing 
that  the  official  receiver  had  the  permission  of 
the  Board  of  Trade  to  make  this  compromise, 
the  application  of  the  trustee  must  be  refused. 
&%glk**,  Ex  parte,  Johnstone,  In  re,  2  M.  B.  R. 
2K-D. 


carried  on— Repayment  by  Trustee 

af  Expenses.]— Where  the  business  of  a  debtor 
■  carried  on  by  the  official  receiver,  who  makes 
payments  out  of  his  own  pocket  for  the  purpose, 
ad  a  composition  is  then  sanctioned,  the  right 
order  for  the  county  court  judge  to  make  is,  that 
the  official  receiver  shall  forthwith  deliver  up 
poaesakni  of  the  debtor's  estate  to  the  trustee 
mder  the  composition,  and  that  the  trustee 
shall  reimburse  the  official  receiver  out  of  the 
first  monies  which  come  to  his  hand  from  the 
realisation  of  the  assets.  Board  of  Trade,  Ex 
fsrte,  Taylor,  In  re,  51  L.  T.  711  ;1M.B.  R. 
tM-D. 

Application  to  Court — In  what  eases.]— The 
court  does  not  sit  to  assist  the  official  receiver  or 
the  trustee  in  simple  matters  relating  to  the 
Btnagement  of  the  estate,  but  it  sits  for  a  judi- 
cial purpose ;  and  where  there  is  no  question  of 
lav  arising,  there  is  no  justification  for  coming 
to  the  court  Honygar,  Ex  parte,  Mahler,  In 
",  1 M.  B.  R.  272— Cave,  J. 

The  official  receiver  must  be  prepared  to  under- 
take the  proper  responsibility  of  his  position,  and 
**  has  no  right  in  a  simple  case  to  come  to  the 
ewnt  merely  for  information.     lb. 

Cannot  act  as  Solicitor  in  his  own  behalf.]— 
The  effect  of  s.  116,  sub-s.  2,  of  the  Bankruptcy 
Ad,  1883,  which  provides  that  no  official  receiver 
shall  daring  his  continuance  in  office,  either 
directly  or  indirectly,  by  himself,  his  clerk  or 
partner,  act  as  solicitor  m  any  proceeding  in 
takroptcy,  is  not  limited  to  cases  of  the  official 
receiver  acting  as  solicitor  by  himself,  his  clerk, 
or  partner,  for  another  person,  or  on  an  applica- 
tion for  the  benefit  of  the  estate,  but  extends 
aho  to  cases  where  the  official  receiver  is  acting 
as  solicitor  for  himself  and  conducting  a  case  on 
a»  own  behalf.  Official  Receiver,  Ex  parte, 
Tijhrr,  In  re,  2  M.  B.  R.  127— D. 

taaU  Bankruptcy  —  Personal  Liability  for 
Gut*.]— The  official  receiver,  acting  as  trustee 
°f  an  estate  being  administered  in  a  summary 
■anner  under  s.  121  of  the  Bankruptcy  Act, 


1883,  on  an  unsuccessful  motion  by  him  was 
ordered  personally  to  pay  the  costs  of  the  re- 
spondent, with  liberty  to  take  the  costs  out  of 
the  estate,  if  any.  Jenkins,  Ex  parte,  Glanville, 
In  re,  33  W.  R.  523  ;  2  M.  B.  R.  71— Cave,  J. 

Application  —  Evidence]  —  The  official 

receiver,  having  reported  to  the  registrar  of  a 
county  court  sitting  in  bankruptcy  that  the 
property  of  the  bankrupt  was  not  likely  to 
exceed  300Z.  in  value,  asked  for  an  order  for 
summary  administration  of  the  estate  under 
8.  121  of  the  Bankruptcy  Act,  1883 ;  but  the 
registrar  refused  to  make  the  order  required 
unless  the  official  receiver  would  support  his 
report  by  affidavit,  assigning  no  other  reason  for 
refusal :— Held,  on  appeal,  that  the  registrar  was 
not  entitled  to  require  an  affidavit  in  support  of 
the  official  receiver's  report,  and  that  such  re- 
ports were  intended  to  be  received  by  the  court 
as  prima  facie  evidence,  and  to  be  acted  upon  as 
such.  Semble,  that  8.  121  gives  a  certain  dis- 
cretion to  the  court,  and  that  a  refusal  must  be 
based  upon  reasonable  grounds.  Official  Receiver, 
Ex  parte,  Horniblow,  In  re,  53  L.  T.  155 ;  2 
M.  B.  R.  124— D. 

Appointment  of  Receiver  and  Manager  — 
Mortgage.] — A  receiver  and  manager  had  been 
appointed  on  an  ex  parte  application  by  the 
plaintiff  in  a  foreclosure  action  under  a  mortgage 
of  brewery  premises.  The  mortgagor,  the  defen- 
dant, afterwards  became  bankrupt  on  his  own 
petition.  The  official  receiver  opposed  a  motion 
by  the  plaintiff  for  the  continuance  of  the  original 
receiver  and  manager,  contending  that  he  ought 
to  be  substituted  : — Held,  that  an  order  must  be 
made  confirming  the  previous  appointment,  and 
continuing  the  person  then  appointed  as  receiver 
of  the  rents  and:  profits  of  the  premises  comprised 
in  the  mortgage,  and  as  manager  of  the  business, 
he  to  be  at  liberty  to  use  any  of  the  vats,  fixed 
motive  machinery,  and  other  property  comprised 
in  the  mortgage,  but  nothing  else.  Deacon  v. 
Arden,  60  L.  T.  584— Pearson,  J. 

Special  Manager  —  Appointment  of.]  —By 
8.  12  of  the  Bankruptcy  Act,  1883,  sub-s.  1,  it 
is  provided  that  the  "official  receiver  of  a 
debtor's  estate  may,  on  the  application  of  any 
creditor  or  creditors,  and  if  satisfied  that  the 
nature  of  the  debtor's  estate  or  business  or  the 
interests  of  the  creditors  generally  require  the 
appointment  of  a  special  manager  of  the  estate  or 
business  other  than  the  official  receiver,  appoint 
a  manager  thereof  accordingly  to  act  until  the 
trustee  is  appointed,  and  with  such  powers  (in- 
cluding any  of  the  powers  of  a  receiver)  as  may 
be  intrusted  to  him  by  the  official  receiver."  By 
s.  66  it  is  provided  (inter  alia),  that  the  official 
receivers,  besides  acting  under  the  general  autho- 
rity and  directions  of  the  Board  of  Trade,  shall 
also  be  officers  of  the  courts  to  which  they  are 
respectively  attached.  Upon  an  appeal  from  a 
decision  of  the  chief  official  receiver,  refusing  to 
sanction  the  appointment  of  a  manager  named 
by  the  creditors  :— Held,  that  the  court  had  no 
jurisdiction  to  interfere  with  the  discretion  of  the 
official  receiver  in  this  matter.  Whittaker,  In  re, 
50  L.  T.  510  ;1M.B.  R.  36— Cave,  J. 

Appearing  to  oppose  Discharge  of  Receiving 

Order.]— See  post,  col.  116. 


91 


BANKRUPTCY— Officers  of  the  Court. 


92 


Liability  for  Costf.] — See  Jenkins,  Ex  parte, 
supra. 

On  Appeals.]— See  infra,  Appeal,  XIX. 


3.  TRUSTEES. 

a.  Appointment. 

b.  Removal. 

c.  Order  to  Account  and  Pay  Money. 

d.  Actions  by. 

e.  Liability  for  costs. 

/.  Other  Points  relating  to. 


a.  Appointment. 

Liquidation  Petition.] — A  trustee  can  be  ap- 
pointed by  the  creditors  under  a  liquidation 
petition,  though  more  than  six  months  have 
elapsed  since  the  filing  of  the  petition.  Fenning, 
Ex  parte  (3  Ch.  D.  455),  discussed.  Credit 
Company,  Ex  parte,  McHenry,  In  re,  24  Ch.  D. 
353  ;  53  L.  J.,  Ch.  161 ;  49  L.  T.  385  ;  32  W.  R. 
47— C.  A. 

The  last  clause  of  sub-s.  7  of  s.  125,  relates 
only  to  the  effect  of  the  appointment  of  a  trustee 
under  a  liquidation  after  he  has  been  appointed, 
and  does  not  impose  on  the  making  of  the  ap- 
pointment any  limitation  similar  to  that  which 
by  s.  6  is  imposed  on  the  making  of  an  adjudica- 
tion of  bankruptcy,  viz.,  that  the  act  of  bank- 
ruptcy on  which  the  adjudication  is  founded 
must  have  occurred  within  six  months  before  the 
presentation  of  the  petition  for  adjudication,  lb. 

Objection  to,  by  Board  of  Trade — Grounds  for.] 

— The  fact  that  a  trusteee  has  been  proposed  by 
the  brother  of  a  bankrupt,  that  such  trustee  has 
previously  voted  in  favour  of  a  composition  and 
scheme  of  arrangement  of  the  debtor's  affairs, 
and  that  no  committee  of  inspection  is  appointed, 
will  not  justify  the  Board  of  Trade  in  objecting 
to  the  appointment  of  such  trustee  under  s.  21, 
sub-s.  2,  of  the  Bankruptcy  Act,  1883,  even  though 
the  majority  in  number  of  the  creditors  are  de- 
sirous that  such  objection  shall  be  made.  Board 
of  Trade,  Ex  parte,  Garnet,  In  re,  1  M.  B.  R.  216 
— Cave,  J. 

When  creditors  acting  under  s.  21  of  the 
Bankruptcy  Act,  1883,  have  appointed  a  trustee 
of  the  property  of  the  bankrupt,  and  it  appears 
that  the  person  so  appointed  is  an  accounting 
party  to  the  estate,  and  that  questions  will  arise 
between  him  and  the  estate  which  will  render  it 
difficult  for  him  to  act  with  impartiality  by 
reason  of  the  conflict  between  his  own  interests 
and  his  duty  to  the  creditors,  these  circumstances 
will,  as  a  general  rule,  justify  the  Board  of 
Trade  in  objecting  to  the  appointment  under 
the  powers  conferred  on  them  by  sub-s.  2  of  s.  21. 
Board  of  Trade,  Ex  parte,  Martin,  In  re,  21 
Q.  B.  D.  29 ;  57  L.  J.,  Q.  B.  384  ;  58  L.  T.  889  ; 
36  W.  R.  698  ;  6  M.  B.  R.  129— Cave,  J. 


b.  Removal. 

Discretion  of  Registrar — "Cause  shown."] — 

The  power  given  to  the  court  by  sub-s.  4  of  s.  83 
of  the  Bankruptcy  Act,  1869,  to  "  remove  any 
trustee  upon  cause  shown,"  authorises  the  re- 
moval of  one  of  several  co-trustees  without  the 


removal  of  all.  "  Cause  shown  "  does  not  mean 
only  conduct  amounting  to  fraud  or  dishonesty 
on  the  part  of  the  trustee  ;  it  is  enough  to  prove 
conduct — such  as  vexatious  obstruction  of  the 
realization  of  the  estate  in  the  interest  of  the 
debtor — which  shows  that  it  is  no  longer  fit  that 
the  trustee  should  remain  a  trustee.  Though  the 
making  of  an  order  to  remove  a  trustee  is  not  a 
matter  of  pure  discretion,  and  the  Court  of 
Appeal  is  bound  to  see  that  cause  was  shown 
in  order  to  found  the  jurisdiction  of  the  registrar, 
yet,  if  the  facts  are  capable  of  two  reasonable 
interpretations,  the  Court  of  Appeal  will  trust 
to  the  discretion  of  the  registrar  in  determining 
which  is  the  more  reasonable  interpretation  of 
the  two,  and  will  not  disturb  his  order  for  the 
removal  of  a  trustee,  he,  from  his  acquaintance 
with  the  proceedings  throughout,  having  far 
better  means  of  judging  than  the  Court  of 
Appeal  has.  Newitt,  Ex  parte,  Mantel,  In  re, 
14  Q.  B.  D.  177  ;  54  L.  J.,  Q.  B.  245  ;  52  L.  T. 
202  ;  33  W.  R.  142— C.  A. 

Court  Restraining  Creditors'  Meeting  for  Pur- 
pose of.] — There  is  jurisdiction  in  bankruptcy  to 
restrain  creditors  from  holding  a  meeting  for 
the  purpose  of  removing  a  trustee  by  resolution. 
Such  a  meeting  was  restrained  when  notice  of  it 
was  given  by  creditors  interested  in  a  large  debt, 
which  the  trustee  had  obtained  an  appointment 
for  moving  to  expunge.  Sayer,  Ex  parte,  Mantel, 
In  re,  19  Q.  B.  D.  679;  56  L.  J.,  Q.  B.  605 
— C.  A. 


o.  Order  to  Aooonnt  and  Pay  Money. 

After  Discharge  of  Trustee.]— A  trustee  under 
the  Bankruptcy  Act,  1869,  who  has  obtained  his 
statutory  release  and  discharge  under  that  Act, 
after  the  25th  of  August,  1883  (the  date  of  the 
passing  of  the  Bankruptcy  Act,  1883),  is  not 
thereby  relieved  from  rendering  an  account  to 
the  Board  of  Trade  of  his  receipts  and  payments 
as  such  trustee,  if,  on  that  date,  he  had  in  his 
hands  any  undistributed  funds,  although  sach 
funds  may  have  been  disposed  of  by  a  subsequent 
resolution  of  the  creditors.  Board  of  Trade,  Ex 
parte,  Cliudley,  In  re,  14  Q.  B.  D.  402  ;  33  W.  B. 
708  ;  2  M.  B.  R.  8— Cave,  J. 

After  Removal — Scheme  of  Arrangement]— 

The  Board  of  Trade  has  power  to  require  a 
trustee  appointed  under  a  scheme  of  arrange- 
ment to  transmit  a  verified  account  of  all  his 
receipts  and  payments,  even  though  such  trustee 
may  have  been  removed  from  office ;  and,  in 
case  of  refusal,  the  court  will  make  an  order 
against  such  trustee  to  enforce  compliance  with 
the  requirements  of  the  Board  of  Trade.  Board 
of  Trade,  Ex  parte,  Rogers,  In  re,  35  W.  R.  457 ; 
4  M.  B.  R.  67— Cave,  J; 

Order  to  pay  over  Funds.] — Upon  an  applica- 
tion on  behalf  of  the  Board  of  Trade,  an  order 
was  made  under  s.  162  of  the  Bankruptcy  Act, 
1883,  directing  the  trustees  of  an  estate  to  pay 
over  certain  undistributed  funds  and  dividends 
into  the  Bank  of  England.  Board  of  Trade, 
Ex  parte,  Pearce,  In  re,  1  M.  B.  R.  56 — Cave,  J. 

Order  for  Account— Hon-complianoe.] — When 
the  Board  of  Trade  applies  to  the  court  under 
s.  102,  sub-s.  5,  of  the  Bankruptcy  Act,  1883,  to 


98 


BANKRUPTCY— Officers  of  the  Court. 


94 


enforce  an  order  made  by  the  Board  under  s.  162, 
sob-s.  2,  against  a  trustee  to  submit  to  them  an 
account  of  receipts  and  expenditure,  the  court 
will  in  the  first  instance  make  an  order  that  the 
trustee  obey  the  order  of  the  Board  of  Trade, 
bat  will  not  add  to  that  order  a  conditional 
aider  for  tbe  committal  of  such  trustee.  Board 
*f  Trade,  Ex  parte,  Margetts,  In  re,  32  W.  K. 
1002;  1  M.  R  B.  211— Cave,  J. 


lafcrting  Payment  of  Money— Application  to 
what  Court.] — An  order  having  been  made  by  a 
county  court  judge  against  a  trustee  in  liquida- 
tion to  credit  the  estate  of  the  debtor  with  certain 
moneys,  tbe  trustee  appealed  to  the  bankruptcy 
jndgt*,  by  whom  the  decision  was  substantially 
affirmed,  and  a  special  order  was  made  as  to  costs, 
and  as  to  the  payments  to  be  made  by  the  trustee. 
Tbe  trustee  having  failed  to  comply  with  the 
order,  an  application  was  made  to  the  bankruptcy 
judge  to  enforce  the  order : — Held,  that  the  ap- 
plication should  hare  been  made  to  the  county 
court  jodge.  Comptroller,  Ex  parte,  Thomas, 
I*  re,  3  31  B.  R.  49— Cave,  J. 


d.  Actions  by. 

Itv  Trustee  appointed.]  —When  a  trustee  in 
bankruptcy  suing  in  his  official  name  is  removed, 
sod  a  new  trustee  appointed,  the  new  trustee 
must  obtain  an  order  to  continue  the  action,  and 
give  notice  thereof  to  the  other  parties,  under 
Old.  XVII.  rr.  4,  5.  Poolers  Trustee  v.  Whet- 
iam,  28  Co.  D.  38  ;  64  L.  J.,  Ch.  182  ;  51  L.  T. 
;  33  W.  B.  423— C.  A. 


e.  Liability  for  Costs. 


Sacmrity  for  Coots — 8ning  in  Official  Hame— 
Iuolveney.] — A  trustee  of  the  property  of  a 
bankrapt  brought  an  action  in  his  official  name, 
b»  own  name  not  being  mentioned.  The  de- 
fendants moved  for  security  for  costs  on  the 
ground  of  his  insolvency,  and  of  his  suing  solely 
in  bis  official  name.  Evidence  was  given  that 
be  bad  been  bankrapt  ten  years  previously,  and 
bad  also  compounded  with  his  creditors  four 
yean  before  the  action  was  brought : — Held, 
that  tbe  evidence  of  the  insolvency  of  the  plain- 
tiff was  insufficient ;  and  that  the  fact  of  his 
■nog  solely  in  his  official  name  was  not  a  ground 
6t  ordering  him  to  give  security  for  costs. 
Whether  a  trustee  in  bankruptcy  suing  in  his 
official  name  would,  if  insolvent,  be  ordered  to 
give  security  for  costs,  quare.    lb. 

The  court  will  not  require  security  for  costs 
to  be  given  by  a  plaintiff  who  sues  as  the  trustee 
in  liquidation  for  the  benefit  of  the  estate,  even 
though  he  be  insolvent.  Dentton  v.  Ashton  (4 
L.  fc\,  Q  B.  590)  approved.  CoweU  v.  Tayhvr, 
A  Cb.  D.  34 ;  55  L.  J.,  Ch.  92  ;  53  L.  T.  483 ; 
H  W.  R.  24— C.  A. 


Maooieiy  and  Particulari.]  —  The  court 
<adered  that  the  defendant  in  an  action  brought 
by  a  trustee  in  bankruptcy  of  a  firm  which  had 
been  aijodicited  bankrupt  before  the  passing  of 
the  Bankruptcy  Act,  1883,  should  be  allowed  to 
<faaio  particulars  from  and  deliver  interroga- 
torks  to  the  trustee,  and  that  the  action  should 
he  trir-l  bv  a  jury.  Carvill,  In  re,  1M.B.R. 
l50-Cave,J. 


Costs  of  Appeals.] — Where,  in  a  case  of  legal 
difficulty,  a  trustee  in  a  bankruptcy  has  obtained 
the  decision  of  the  court,  and  he  appeals  from 
such  decision  unsuccessfully,  the  order  for  costs 
will  be  made  against  him  personally.  James, 
Ex  parte,  Maiden,  In  re,  55  L.  T.  708  ;  3  M.  B. 
R.  185— D. 

Where  the  county  court  had  refused  to  approve 
of  resolutions  for  a  scheme  of  settlement  under 
8. 28  of  the  Bankruptcy  Act,  1869,  and  the  trustee 
appealed  to  the  chief  judge,  who  reversed  the 
order,  and  the  Court  of  Appeal  finally  restored 
the  order  of  the  county  court  judge,  the  trustee 
was  allowed  the  costs  of  his  application  to  the 
county  court  judge  out  of  the  assets,  if  any,  but 
was  ordered  to  pay  the  costs  of  the  appeals  to 
the  chief  judge  and  to  the  Court  of  Appeal. 
Strawbridge,  Ex  parte ■,  Hickman,  In  re,  25  Ch. 
D.  266  ;  53  L.  J.,  Ch.  323  ;  49  L.  T.  638  ;  32  W. 
R.  173— C.  A. 

Rejection  of  Proof]— The  court,  in  reversing 
the  decision  of  the  trustee  in  a  bankruptcy 
rejecting  a  proof,  ordered  him  to  pay  the  costs 
personally,  oeing  of  opinion  that  he  had  acted 
unreasonably  and  improperly  in  rejecting  it 
Brown,  Ex  parte,  Smith,  In  re,  17  Q.  B.  D.  488  ; 
3  M.  B.  R.  202— C.  A.  See  Edmunds,  Ex  parte, 
Green,  In  re,  63  L.  T.  967— D. 

Adoption  of  Bankrupt's  Defence. ]— An  inter- 
locutory order  for  an  injunction  and  receiver 
having  been  made  against  the  defendants  in  an 
action,  they  gave  notice  of  appeal,  and  shortly 
afterwards  became  bankrupt.  An  order  was 
made  for  carrying  on  the  proceedings  against 
their  trustee.  The  trustee  gave  notice  to  the 
plaintiff  that  he  should  not  proceed  with  the 
appeal.  Shortly  after  this  the  trustee  entered 
an  appearance  and  demanded  a  statement  of 
claim.  He  declined  to  undertake  to  pay  the 
costs  of  the  appeal  incurred  by  the  plaintiff 
before  the  notice  that  the  appeal  would  not  be 
proceeded  with,  and  the  appeal  came  on  that  the 
question  as  to  the  costs  might  be  decided : — 
Held,  that  the  appeal  must  be  dismissed  with 
costs  to  be  paid  by  the  trustee,  for  that  having 
adopted  the  defence  of  the  bankrupts  he  had 
placed  himself  in  their  position  as  to  the  whole 
of  the  action,  and  could  not  reject  part  of  the 
proceedings  in  it.  Bomeman  v.  Wilson,  28  Ch. 
D.  53  ;  54  L.  J.,  Ch.  631  ;  61  L.  T.  728  ;  33  W. 
R.  141— C.  A. 


f.  Other  points  relating  to. 

Affidavit  of  no  Receipts— Duty  as  to  Stamp- 
ing Affidavit.] — Where  no  money  on  account  of 
the  debtor's  estate  has  come  into  the  hands  of  a 
trustee,  he  must,  at  his  own  expense,  provide  the 
stamp  for  the  affidavit  of  no  receipts  or  pay- 
ments which  is  required  to  be  forwarded  to  the 
Board  of  Trade  in  such  case.  Board  of  Trade, 
Ex  parte,  Rowlands,  In  re,  35  W.  R.  457  ;  4  M. 
B.  R.  70— Cave.  J. 

Duty  where  Official  Receiver' •  Aeeount  Un- 
satisfactory.]— When  the  trustee  in  bankruptcy 
is  dissatisfied  with  the  accounts  rendered  to  trim 
by  the  official  receiver,  he  should  make  a  report 
thereon  to  the  Board  of  Trade  pursuant  to  the 


95 


BANKRUPTCY— Who  may  be  Bankrupt. 


96 


249th  rale  of  the  Bankruptcy  rales,  1883  ;  and  if 
the  Board  neglect  or  refuse  to  act  in  the  matter, 
he  should  then  apply  to  the  court  for  directions 
under  s.  101  of  tne  Act.  Fox,  Ex  parte,  Smith, 
In  re,  17  Q.  B.  D.  4  ;  55  L.  J.,  Q.  B.  288  ;  54  L. 
T.  307  ;  34  W.  R.  535  ;  3  M.  B.  R.  63— Cave,  J. 

Duty  as  to  Appealing.] — A  trustee,  to  protect 
himself,  should,  before  appealing,  obtain  the 
consent  of  the  creditors  to  do  so,  and  also  obtain 
a  guarantee  from  such  creditors  for  his  own  pro- 
tection. James,  Ex  parte,  Maiden,  In  re,  55  L. 
T.  708  ;  8  M.  B.  R.  185— D. 

Payment  of  Money  to  Trustee  under  Mistake 
of  Law— Bight  to  recover.]— The  ordinary  rule, 
as  between  litigant  parties,  that  money  paid  under 
a  mistake  of  law  cannot  be  recovered,  does  not 
apply  to  a  payment  made  under  such  a  mistake 
to  the  trustee  in  a  bankruptcy.  The  trustee 
being  an  officer  of  the  court,  the  court,  when  the 
mistake  is  discovered,  will  direct  him  to  refund 
the  money,  if  it  is  still  in  his  hands ;  and,  if  it 
has  been  applied  in  the  payment  of  dividends  to 
the  creditors  under  the  bankruptcy,  the  court 
will  direct  the  trustee  to  repay  it  out  of  other 
moneys  coming  to  his  hands,  and  applicable  to 
the  payment  of  dividends  to  the  creditors.  James, 
Ex  parte  (9  L.  R.  Ch.  609),  followed  and  extended. 
Simmonds,  Ex  parte,  Carnac,  In  re,  16  Q.  B.  D. 
308  ;  55  L.  J.,  Q.  B.  74  ;  54  L.  T.  439 ;  34  W.  R. 
421— C.  A. 

Relation  back  of  Title— Adjudication  after 
Liquidation  Petition.] — See  Sharp  v.  McHenry, 
post,  col.  175. 

Title  to  Property.]— See  post,  Property,  VIII. 

What  Transactions  are  protected.] — See  post, 
Protected  Transactions,  XI. 


III.    WHO  MAT  BE  BANKRUPT. 

Lunatic— Leave  to  Committee.]— The  court 
gave  leave  to  the  committee  of  a  lunatic  to  file  a 
petition  in  bankruptcy  under  s.  4  (f)  of  the 
Bankruptcy  Act,  1883,  on  behalf  of  the  lunatic 

rn  evidence  that  it  would  be  for  the  benefit  of 
lunatic  that  he  should  be  made  a  bankrupt, 
and  that  the  creditors  were  willing  to  make  him 
an  allowance.  James,  In  re,  12  Q.  B.  D.  332  ; 
53  L.  J.,  Q.  B.  675  ;  50  L.  T.  471— C.  A. 

Married  Woman  —  Separate  Estate  —  Eon- 
Trader.]  —  A  married  woman,  possessed  of 
separate  estate,  but  not  carrying  on  a  trade 
separately  from  her  husband,  is  not  subjected  to 
the  operation  of  the  bankruptcy  laws,  and 
cannot  commit  an  act  of  bankruptcy  under  s.  4 
of  the  Bankruptcy  Act,  1883.  Coulson,  Ex  parte, 
Gardiner,  In  re,  20  Q.  B.  D.  249  ;  57  L.  J.,  Q.  B. 
149  ;  58  L.  T.  119  ;  36  W.  R.  142  ;  5  M.  B.  R.  1 
— D. 

Medical  Practitioner— "Trader.*7]— A  medical 
man  practising  as  a  general  practitioner  dis- 
pensed medicines  to  his  patients  but  charged  by 
the  visit  irrespectively  of  the  medicine  supplied, 
which  was  covered  by  the  charge  for  the  visit : 
— Held,  that  he  was  not  a  trader  in  drugs 
within  the  meaning  of  the  Bankruptcv  Act, 
1 869.    Ilance  v.  Harding,  20  Q.  B.  D.  732  ;  57 


L.  J.,  Q.  B.  403  ;  59  L.  T.  659 ;  36  W.  R.  629- 
C.A. 

Domicil  of  Debtor.]— Sub-s.  1  (<1)  of  s.  6 
of  the  Bankruptcy  Act,  1883,  enacts  that  s 
creditor  shall  not  be  entitled  to  present  a 
bankruptcy  petition  against  a  debtor  unless 
(inter  alia)  "the  debtor  is  domiciled  in  Eng- 
land : " — Held,  that  this  must  be  taken  to  mean 
domiciled  in  England,  as  distinguished  from 
Scotland  or  Ireland.  Cunningham,  Ex  parte, 
Mitchell,  In  re,  13  Q.  B.  D.  418  ;  53  L.  J.,  Ch. 
1067 ;  51  L.  T.  447 ;  33  W.  R.  22 ;  1  M.  B.  B. 
137— C.  A. 


Onus  of  Proof.]— The  onus  is,  in  the  first 


instance,  on  the  petitioning  creditor  to  prove  the 
domicil,  though  he  may  adduce  such  prima  facie 
evidence  as  will  throw  the  burden  of  disproving 
the  domicil  on  the  debtor.  But  the  mere  fact 
that  the  debtor  bears  an  English  name,  and  is  an 
officer  in  the  British  army,  does  not  raise  any 
presumption  that  his  domicil  is  English  as  dis- 
tinguished from  Scotch  or  Irish,  inasmuch  as  his 
domicil  of  origin  might  have  been  Scotch  or  Irish, 
and  in  either  of  those  cases  he  would  not  by  en- 
tering; into  the  British  army  have  lost  his  domicil 
of  origin.  Yelverton  v.  Yelverton  (1  Sw.  &  Tr. 
574),  and  JBrotvn  v.  Smith  (15  Beav.  444),  ap- 
proved and  followed,    lb. 

The  onus  is  on  the  petitioning  creditor  to 
prove  that  the  debtor's  domicil  is  English,  as 
required  by  8.  6,  sub-s.  1  (d),  of  the  Bankruptcv 
Act,  1883,  and  that  his  residence  has  been  such 
as  to  give  the  High  Court  jurisdiction  under  s. 
95.  But,  if  there  is  no  reason  to  suppose  that 
the  debtor  will  dispute  that  his  domicil  is 
English,  or  that  the  petition  is  presented  in  the 
right  court,  the  petitioning  creditor  need  not  in 
the  first  instance  adduce  evidence  of  either  of 
those  facts,  Cunningham,  Ex  parte  (13  Q.  B.  D. 
418),  explained.  Barne,  Ex  parte,  Barne,  In 
re,  16  Q.  B.  D.  522  ;  54  L.  T.  662 ;  3  M.  B.  R.  3S 
— C.A. 


Debtor  ordinarily  residing  in  England.] 


— Where  a  debtor  who  was  not  domiciled  in  nor 
had  a  dwelling-house  or  place  of  business  in 
England,  had  for  eighteen  months  previous  to 
the  presentation  of  a  bankruptcy  petition  against 
him,  a  room  at  an  hotel  in  London,  which  he 
paid  for  continuously  during  that  time,  and  was 
treated  as  an  ordinary  resident  there  : — Held, 
that  the  debtor  had  "  ordinarily  resided  in  Eng- 
land," within  the  meaning  of  s.  6,  sub-s.  1  (d),of 
the  Bankruptcy  Act,  1883,  and  that  the  creditor 
was  entitled  to  present  a  bankruptcy  petition 
against  him.  Reynolds,  Ex  parte,  North,  I* 
re,  5  M.  B.  R.  Ill— C.  A. 


IV.    ACT  OF  BANKRUPTCY. 

"  Remaining  out  of  England" — Domiciled 
Englishman  residing  Abroad.]  —  A  domiciled 
Englishman  went,  in  1876,  with  his  family,  to 
reside  in  France,  where  he  took  a  house.  He 
was  not  then  being  pressed  by  any  creditors  in 
England.  For  a  period  of  fourteen  months  in 
1877  and  1878  he  was  in  England,  carrying  on 
the  business  of  a  newspaper  which  he  had  pur- 
chased, and  he  then  had  a  furnished  lodging  in 
London.  During  that  period  he  retained  his 
house  in  France,  and  his  wife  and  family  lived 


97 


BANKRUPTCY— Act  of  Bankruptcy. 


98 


in  it    Daring  the  same  period  he  contracted  a 
debt  for  costs  to  a  solicitor  in  London.    At  the 
end  of  the  fourteen  months  he  discontinued  the 
business,  and  went   back  to  his  residence  in 
France.    In  1880  he,  with  his  family,  occupied 
for  nine  months  a  furnished  house  in  England, 
his  house  in  France  being  let  furnished ;  at  the 
end  of  the  nine  months  he  returned  to  that 
boose.  He  then  continued  to  reside  there,  paying 
occasional  visits  to  England.    During  one  of 
these  visit*  he  accidentally  met  the  solicitor,  who 
asked  him  why  he  had  not  paid  his  debt,  and  he 
answered  that  his  newspaper  speculation  had 
left  him  with   a  number  of   claims,  and  he 
thought  if  he  kept  abroad  he  should  be  able  to 
settle  them  more  easily.    The  solicitor  presented 
a    bankruptcy    petition   against    the    debtor, 
alleging  as  an  act  of  bankruptcy  that  he  had 
remained  out  of  England  with  intent  to  defeat 
or  delay  his    creditors  : — Held,   that    as   the 
debtor  was  remaining  out  of  England  at  his  own 
permanent  residence  abroad,  no  intent  to  defeat 
or  delay  his  creditors  could  be  imputed  to  him 
from  that  circumstance  alone,  and  that  the  con- 
versation with  the  petitioning  creditor  was  not 
sufficient  to  prove  such  an  intent    Brandon, 
&  parte,  Trench,  In  re,  25  Gh.   D.  500 ;   53 
L.  Jn  Ch.  576 ;  50  L.  T.  41 ;   32  W.  R.  601— 
C.A. 

Intent  to  Defeat  or  Delay  Creditors.]— 

In  January,  1886,  the  debtor,  whose  business  was 
connected  with  Central  America,  called  on  his 
bankers  and  informed  them  that  he  was  about 
to  visit  that  country  and  obtained  from  them  an 
advance  of  2,0002.  The  money  was  not  repaid, 
and  in  July,  1886,  a  circular  was  sent  to  the 
creditors  by  the  debtor's  solicitors  stating  that 
he  vat  in  difficulties  and  calling  a  meeting  of 
creditors.  The  creditors  resolved  that  the  debtor 
should  be  requested  to  stay  in  America  to  realise 
Ins  assets  there,  and  a  telegram  was  thereupon 
•at  to  him  by  his  solicitors  to  that  effect.  No 
communications  having  arrived  from  the  debtor, 
and  his  solicitors  having  declined  to  accept 
service  of  a  writ,  it  was  ascertained  that  the 
debtor's  London  office  had  been  closed,  and  in 
September,  1886,  the  bank  presented  a  petition  : 
—Held,  that  the  object  for  which  the  creditors 
accorded  permission  to  the  debtor  to  remain  in 
America  was  in  order  that  he  might  realise  his 
atsets;  that  the  conduct  of  the  debtor  in  not 
communicating  with  the  creditors,  and  also  in 
respect  of  the  non-acceptance  of  service  of  the 
writ,  afforded  ample  evidence  of  an  intention  to 
•lav  abroad  for  the  purpose  of  defeating  his 
creditors  within  the  meaning  of  s.  4,sub-s.  1  (d), 
d  the  Bankruptcy  Act,  1883 ;  and  that  the  court 
vis  right  in  making  a  receiving  order.  Campbell, 
Bz  parte,  Campbell,  In  re,  4  M.  B.  R.  198— D. 
and  see  preceding  case. 


House."] — Where  a  debtor  keeps 
himself  to  a  creditor,  though  not 
with  the  intention  of  defeating  him,  but  rather 
with  the  view  of  gaining  time  for  the  purpose  of 
paying  his  creditors,  he  delays  him  and  commits 
an  act  of  bankruptcy  within  the  meaning  of  the 
provisions  of  the  Bankruptcy  Act.  Richardson 
*.  Pratt,  52  Ll  T.  614— D. 

'*  Departing  from  Bwelling-house  "—Intent  to 
*by  and  Meat  Creditors.]— On  March  8th 
the  debtor,  who  was  a  farmer,  instructed  an 


auctioneer  to  sell  off  all  the  stock,  furniture,  and 
effects  on  his  farms,  and  the  sale  was  advertised 
to  take  place  on  March  16th  and  18th,  the  ad- 
vertisements stating  that  the  debtor  was  leaving 
the  neighbourhood.  On  March  15th  a  creditor, 
having  heard  of  the  sale,  wrote  to  the  debtor, 
and  on  the  same  day  another  creditor  served  the 
debtor  with  a  writ.  On  March  16th  the  debtor 
departed  from  his  house  but  left  his  brother  at 
the  farm,  who  superintended  the  conduct  of  the 
sale,  and  informed  the  auctioneer  that  letters 
addressed  to  him  would  reach  the  debtor.  On 
March  17th  the  debtor  wrote  to  the  first-men- 
tioned creditor  stating  that  he  would  call  and 
explain  matters,  but  did  not  do  so.  A  petition 
was  subsequently  presented,  the  act  of  bank- 
ruptcy alleged  being  that  the  debtor  had  departed 
from  his  dwelling-house  with  intent  to  delay  and 
defeat  creditors ;  but  the  county  court  judge 
refused  to  make  a  receiving  order  : — Held,  that 
the  debtor  was  not  bound  to  stay  on  the  farm 
while  his  effects  were  being  sold ;  that  he  left 
his  brother  as  his  representative,  and  no  evidence 
had  been  given  to  show  that  if  inquiries  had 
been  made  as  to  the  debtor  they  would  not  have 
been  answered ;  and  that  as  the  county  court 
judge  had  come  to  the  conclusion  that  there  was 
no  intention  to  defeat  creditors,  the  court  would 
not  interfere  with  his  decision.  Foster,  Ex 
parte,  Woolstenhclme.  In  re,  4  M.  B.  R.  258 
— D. 


-Onus  of  Proof.] — A  petitioning  creditor, 


who  alleges  that  his  debtor  has  committed  an 
act  of  bankruptcy,  by  departing  from  his  dwell- 
ing-house with  intent  to  defeat  and  delay  his 
creditors,  is  bound  to  show  that  the  debtor  is 
alive  and  in  some  other  place.  Oeisel,  Ex  parte, 
Stanger,  In  re,  22  Ch.  D.  436 ;  53  L.  J.,  Oh. 
349  ;  48  L.  T.  405  ;  31  W.  R.  264— C.  A. 

"  Hotioe  of  Suspension  of  Payment " — Verbal 
Hotioe.] — A  notice  by  a  debtor  that  he  has  sus- 
pended, or  that  he  is  about  to  suspend,  payment 
of  his  debts  need  not,  in  order  that  it  may  con- 
stitute an  act  of  bankruptcy,  be  in  writing.  It 
is  sufficient  if  a  verbal  statement  to  that  effect 
be  made  by  the  debtor  to  one  of  his  creditors. 
NicJtoll,  Ex  parte,  Walker,  In  re,  13  Q.  B.  D. 
469;  1  M.  B.  R.  188— D.  Compromised  on 
appeal,  W.  N.  1884,  222. 

An  oral  statement  made  by  a  debtor  to  a  cre- 
ditor that  he  is  unable  to  pay  his  debts  in  full,  is 
not  a  notice  that  he  has  suspended,  or  is  about  to 
suspend,  payment  of  his  debts,  so  as  to  constitute 
an  act  of  bankruptcy  within  sub-s.  1  (h)  of  s.  4 
of  the  Bankruptcy  Act,  1883.  Such  a  notice 
may  be  given  orally,  but  it  must  be  given 
formally  and  deliberately,  and  with  the  inten- 
tion of  giving  notice.  Oastler,  Ex  parte,  Fried- 
lander,  In  re,  13  Q.  B.  D.  471  ;  54  L.  J.,  Q.  B. 
23  ;  61  L.  T.  309  ;  33  W.  R.  126  ;  1  M.  B.  R.  207 
— C.  A. 

By  8.  4,  sub-8.  1  (h),  of  the  Bankruptcy  Act, 
1883,  it  is  provided  that  a  debtor  commits  an 
act  of  bankruptcy  if  he  gives  notice  to  any  of 
his  creditors  that  he  has  suspended,  or  that  he 
is  about  to  suspend,  payment  of  his  debts.  A 
debtor  having  called  his  creditors  together,  and 
having  made  to  them  an  offer  of  a  certain 
amount  in  the  pound  : — Held,  that  this  did  not 
amount  to  a  declaration  of  intention  to  suspend 
payment,  and  did  not,  therefore,  constitute  an 

B 


99 


BANKRUPTCY— Act  of  Bankruptcy. 


100 


act  of  bankruptcy.    Trustee,  Ex  parte,  Walsh, 
In  re,  52  L.  T.  694  ;  2  M.  B.  R.  112— D. 


What  Constitutes.]— By  s.  4,  sub-s.  1(A) 

of  the  Bankruptcy  Act,  1883,  it  is  provided  that 
a  debtor  commits  an  act  of  bankruptcy  if  he  gives 
notice  to  any  of  his  creditors  that  he  has  sus- 
pended, or  that  he  is  about  to  suspend,  payment 
of  his  debts.  A  debtor  through  his  agents  issued 
a  circular  to  his  creditors,  setting  out  a  state- 
ment of  his  affairs  and  offering  them  a  certain 
amount  in  the  pound,  adding  that  he  had  no 
other  property,  that  he  was  going  out  of  business 
and  into  some  situation.  The  agents  after  the  issue 
of  the  circular  paid  some  debts  by  the  debtor's 
direction  : — Held,  that  this  circular  issued  by  the 
agents  amounted  to  a  declaration  by  the  debtor 
that  he  was  about  to  suspend  payment,  and  as 
such  was  an  act  of  bankruptcy.  Gibson,  Ex 
parte,  Lamb,  In  re,  55  L.  T.  817— D.  Affirmed 
4  M.  B.  R.  25— C.  A. 

Where  two  circulars  were  sent  out  by  the 
solicitors  of  the  debtor  to  the  creditors,  calling  a 
meeting  of  the  creditors,  and  laying  before  them 
the  position  of  the  debtor,  and  further  stating 
that  by  the  kindness  of  friends,  and  by  raising 
money  upon  his  furniture,  such  debtor  might  be 
enabled  to  pay  10*.  in  the  pound,  provided  all 
the  creditors  would  accept  it  to  save  bankruptcy 
proceedings,  but  that  if  all  the  creditors  would 
not  agree,  there  was  no  alternative  but  to  seek 
the  protection  of  the  court : — Held,  that  such 
statements  amounted  to  a  notice  by  the  debtor 
"  that  he  has  suspended,  or  that  he  is  about  to 
suspend,  payment  of  his  debts,"  so  as  to  consti- 
tute an  act  of  bankruptcy  under  s.  4,  sub-s.  1 
(h),of  the  Bankruptcy  Act,  1883.  Wolstenholme, 
Ex  parte,  Wolstenholme,  In  re,  2  M.  B.  R.  213 
— D. 

Assignment  of  Proceeds  of  Sale  of  Property.] 
— G.,  a  farmer,  whose  lease  was  about  to  expire 
in  September,  1884,  placed  all  his  live  and  dead 
stock  in  the  hands  of  an  auctioneer  to  realize, 
and  in  order  to  prevent  H.,  who  held  a  judgment 
for  1302.  against  him,  and  also  a  promissory  note 
for  38/.,  from  stopping  the  sale,  G.  signed  and 
gave  the  following  letter  addressed  to  the  auc- 
tioneer : — "  I  authorize  and  request  you  to  pay 
to  H.  out  of  the  first  proceeds  of  the  sale  of  my 
farming  live  and  dead  stock  (after  satisfying 
the  landlord's  claim  for  rent)  the  sum  of  1682., 
being  the  amount  due  from  me  to  him,  and  I 
hereby  appropriate  the  sum  of  1682.  out  of  the 
proceeds  of  such  sale  for  the  purpose  of  such 
payment  accordingly — Dated.  August  18, 1884." 
G.  then  owed  other  debts  of  about  1502.  The 
goods  were  sold  by  the  auctioneer  on  August  21, 
and  realized  2762.  gross.  The  net  proceeds  after 
payment  of  rent  amounted  to  1422.  A  receiving 
order  was  made  on  October  22.  The  crops  on 
the  farm  sold  or  paid  for  by  the  incoming  tenant 
realized  1482.,  and  G.'s  furniture  122.  G.  had 
no  other  property.  The  trustee  in  bankruptcy 
claimed  the  1422. : — Held,  that  H.  was  entitled 
to  the  1422.,  and  the  transaction  in  question 
was  not  an  act  of  bankruptcy.  Jenkins,  Ex 
parte,  Glanville,  In  re,  33  W.  R.  523  ;  2  M.  B.  R. 
71 — Cave,  J. 

Fraudulent  Conveyance — Assignment  of  all 
Debtor's  Property— Intent  to  defeat  or  delay 
Creditors.] — A  trader  in  embarrassed  circum- 
stances in  July,  1882,  assigned  substantially  the 


whole  of  his  property  (including  his  stock  in 
trade,  book  debts,  and  the  goodwill  of  his  busi- 
ness) to  a  single  creditor,  in  consideration  (as> 
expressed  in  the  deed)  of  the  release  by  that 
creditor  of  a  debt  of  3,2712.  then  owing  to  him 
by  the  debtor.  In  fact,  at  the  date  of  the 
assignment,  only  1,3702.  was  due  by  the  assignor 
to  the  assignee,  and  the  real  consideration  was 
the  release  by  the  assignee  of  that  debt,  and  a 
secret  verbal  agreement  between  him  and  the 
assignor  that  he  should  undertake  the  payment 
of  the  assignor's  debts  (either  the  whole  of  his 
debts,  or,  at  any  rate,  his  trade  debts).  On  the 
same  day  the  assignor  entered  into  a  written 
agreement  to  manage  the  business  as  the  servant 
of  the  assignee  at  a  weekly  salary.  The  assignee, 
a  few  days  before  the  execution  of  the  deed,  but 
after  the  arrangement  between  the  parties  had 
been  come  to,  paid  out  some  executions  for  the 
assignor,  and  shortly  after  the  execution  of  the 
deed  he  paid  anarrearof  rent  which  the  assignor 
owed  to  his  landlord.  The  business  was,  after 
the  execution  of  the  deed,  carried  on  by  the 
assignor  in  his  own  name,  just  as  it  was  before, 
there  being  nothing  to  show  that  he  was  not  the 
real  as  well  as  the  apparent  owner  of  it,  though 
he  was  in  fact  acting  under  the  directions  of  the 
assignee.  None  of  the  other  creditors  knew  of 
the  assignment.  In  March,  1883,  the  assignor 
was  adjudged  a  bankrupt.  At  the  date  of  the 
bankruptcy  nearly  all  the  trade  debts  due  by 
the  assignor  at  the  date  of  the  deed  had  been 
paid  in  the  course  of  the  carrying  on  of  the 
business : — Held,  by  Cotton  and  Bowen,  L.JJ., 
that  the  deed  was  void  as  against  the  trustee  in 
the  bankruptcy  as  an  act  of  bankruptcy,  its 
necessary  effect  being  to  defeat  and  delay  the 
assignor  s  creditors  in  enforcing  their  ordinary 
remedies  for  the  recovery  of  their  debts,  and 
there  being  no  means  by  which  they  could 
compel  the  fulfilment  by  the  assignee  of  hi* 
agreement  to  pay  their  debts.  Chaplin,  Ex 
parte,  Sinclair,  In  re,  26  Ch.  D.  319 ;  53  L.  J.r 
Ch.  732  ;  51  L.  T.  345— C.  A. 

Held,  by  Fry,  L.  J.,  that  the  deed  was  void 
as  against  the  assignor's  creditors  under  the 
statute,  13  Eliz.  c.  5.    lb. 

Assignment  of  whole  Property  to  secur* 
existing  Debt  and  farther  Advance.  ] — When  a 
bill  of  sale  of  the  whole  of  a  trader's  property  is 
executed  as  security  for  an  existing  debt  and  a 
fresh  advance,  the  true  test  whether  the  execu- 
tion of  the  deed  is  an  act  of  bankruptcy,  is,  was 
the  fresh  advance  made  by  the  lender  with  the 
intention  of  enabling  the  borrower  to  continue 
his  business,  and  had  he  reasonable  grounds  for 
believing  that  the  advance  would  enable  the 
borrower  to  do  so  ?  If  these  questions  can  be 
answered  in  the  affirmative,  the  execution  of  the 
deed  is  not  an  act  of  bankruptcy.  Johnson,  E& 
parte,  Chapman,  In  re,  26  Ch.  D.  338  ;  53  L.  J., 
Ch.  763  ;  60  L.  T.  214  ;  32  W.  R.  693— C.  A. 

The  court  ought  not  to  look  at  the  uncommu- 
nicated  intention  of  the  borrower,  nor  at  the 
actual  result  of  the  loan.    lb. 

Fraudulent  Transfer  of  Property— Payment 
by  Agent.] — An  agent,  who,  in  obedience  to  the 
previous  direction  of  his  principal,  pays  away 
money  of  the  principal  which  is  in  his  hands, 
knowing  before  he  makes  the  payment  (though 
he  did  not  know  when  he  received  the  money) 
that  the  payment  will  when  completed  consti- 


101 


BANKRUPTCY— Debtor's  Summons. 


102 


tote  an  act  of  bankruptcy  on  the  part  of  the 
principal,  is  not  liable  to  the  trustee  in  the  sab- 
sequent  bankruptcy  of  the  principal  for  the 
money  so  paid  away.  The  trustee  could  recover 
the  money  from  the  agent  only  on  the  ground 
that  he  had  paid  away  the  money  of  the  trustee, 
and  in  such  a  case  the  money  would  become  the 
trustee's  money  only  on  the  completion  of  the 
act  of  bankruptcy  to  which  his  title  would  relate 
back,  Le.,  not  until  after  the  money  had  left  the 
agent's  hands.  Helder,  Ex  parte,  Lewis,  In  re, 
24  Ch.  D.  339  ;  53  L.  J.,  Ch.  106  ;  49  L.  T.  612 
— C.A. 

Fraudulent  Preference.] — A  fraudulent  pre- 
ference is  not  per  se  an  act  of  bankruptcy. 
Luck,  Ex  parte,  Kemp,  In  re,  49  L.  T.  809  ;  32 
W.  R.  296— C.  J.  B. 

Computation    of    Time  —  "  Within    Three 
Months."]— By  a.  6,  sub-s.  1  (c),  Bankruptcy 
Act,  1883,  "a  creditor  shall  not  be  entitled  to 
present  a  bankruptcy  petition  against  a  debtor 
unless  the  act  of  bankruptcy  on  which  the  peti- 
tion is  grounded    has   occurred  within    three 
months  before  the  presentation  of  the  petition." 
A  debtor  committed  an  act  of  bankruptcy  on  the 
13th  August,  and  a  petition  was  presented  on 
the  13th  November  : — Held,  that  the  petition  was 
presented  in  time.     Foster,  Ex  parte,  Hanson, 
In  re,  56  L.  T.  573  ;  35  W.  R.  466  ;  4  M.  B.  R. 
98— D. 

Act  of  Bankruptcy  committed  before  the  1st 
of  January,  1834.] — A  receiving  order  can  be 
made  on  a  bankruptcy  petition  presented  under 
the  Bankruptcy  Act,  1883,  founded  on  an  act  of 
bankruptcy  committed  before  that  act  came  into 
operation,  but  in  respect  of  which  no  bankruptcy 
proceedings  had  been  taken  before  that  date.  And 
the  fact  that  liquidation  proceedings  under  the 
Bankruptcy  Act,  1869,  were  pending  when  the 
act  of  1883  came  into  operation,  and  that  those 
proceedings  afterwards  came  to  an  end  by  reason 
of  the  creditors  failing  to  pass  any  resolution, 
dees  not  affect  the  power  of  the  court  to  make 
the  receiving  order.  Pratt,  Ex  parte,  Pratt,  In 
re,  infra. 

Waiver  of  Proof.] — A  debtor  who  has 
appeared  on  a  bankruptcy  petition  and  not  taken 
the  objection  that  the  act  of  bankruptcy  has  not 
been  strictly  proved,  will  be  deemed  to  have 
waived  his  right  of  proof.  Evans,  Ex  parte, 
Emm,  In  re,  50  L.  T.  158  ;  32  W.  R.  281— C.  A. 

If,  on  the  hearing  of  a  bankruptcy  petition, 
the  act  of  bankruptcy  alleged  is  not  strictly 
proved,  but  the  debtor  appears  and  does  not  raise 
the  objection,  and  a  receiving  order  is  made,  he 
cannot  on  an  appeal  from  that  order  raise  the 
objection.  Pratt,  Ex  parte,  Pratt,  In  re,  12 
Q.  B.  D.  334  ;  53  L.  J.,  Ch.  613  ;  50  L.  T.  294  ; 
32  W.  R.  420;  1  M.  B.  R.  27— C.  A. 


V.    DEBTOR'S    BTOTHOHS. 

lerviee— Inaccurate  Copy —  "Formal  Defect 
*  Irregularity."]— Od  serving  a  debtor  with  a 
debtor's  summons  the  sealed  copy  which  was 
delivered  to  him  stated  the  amount  of  the  debt 
claimed  by  the  creditor  to  be  24J.  (instead  of 
74in  the  real  amount),  but  these  words  were 
tdded, "  being  the  sum  claimed  of  you  by  him 
according  to  the  particulars  hereunto  annexed." 


The  particulars  thus  referred  to  were  set  forth  on 
the  second  half  of  a  sheet  of  paper,  the  first  half 
of  which  contained  the  summons.  The  par- 
ticulars stated  the  amount  of  the  debt,  and  the 
circumstances  under  which  it  arose,  correctly : — 
Held,  that  the  error  in  the  summons  was  a  merely 
"formal  defect"  within  the  meaning  of  s.  82  of 
the  Bankruptcy  Act,  1869,  by  which  the  debtor 
could  not  possibly  have  been  misled,  and  that  no 
substantial  injustice  had  been  caused  to  him  by 
it,  and,  consequently,  that  the  service  of  the 
summons  was  not  invalidated  by  it,  and  an 
adjudication  of  bankruptcy  founded  on  the 
summons  could  not  be  impeached.  Johnson,  Ex 
parte,  Johnson,  In  re,  25  Ch.  D.  112  ;  53  L.  J., 
Ch.  309 ;  50  L.  T.  157  ;  32  W.  R.  175— C.  A. 

By  Clerk  of  Creditor.] — The  summoning 

creditor  was  a  solicitor,  and  the  service  of  the 
summons  was  effected  by  his  clerk,  instead  of  by 
himself  or  his  attorney,  or  by  an  officer  of  the 
court,  as  required  by  r.  61  of  the  Bankruptcy 
Rules,  1870 : — Held,  that  this  irregularity  also 
was  cured  by  s.  82.    lb. 

Time— Substituted  Service.]— R.  59  of 

the  Bankruptcy  Rules,  1870,  does  not  apply  to 
substituted  service  of  a  debtor's  summons,  but, 
if  personal  service  cannot  be  effected,  an  order 
for  substituted  service  may  be  made  under  r.  61 
after  the  expiration  of  the  time  limited  by  r.  59 
for  effecting  personal  service,  and  the  substituted  - 
service  must  be  effected  within  such  reasonable 
time  as  the  court  may  fix.  Warburg,  Ex  parte, 
Whalley,  In  re,  25  Ch.  D.  336 ;  53  L.  J.,  Ch.  336  ; 
32  W.  &  542— C.  A. 

Security.] — Where  a  debtor's  summons  had 
been  served  for  non-payment  of  250/.,  part  of  a 
larger  debt  of  1,400Z.,  and  after  service  of  the 
summons  the  entire  debt  became  payable,  and 
was  disputed  by  the  debtor,  the  court  held  that 
the  registrar  had,  under  s.  9  of  the  Bankruptcy 
Act.  1869,  upon  a  bankruptcy  petition,  founded 
on  non-compliance  with  the  summons,  an  absolute 
discretion  to  order  security  to  be  given  for  the 
larger  amount.  Evans,  Ex  parte,  Evans,  In  re, 
50  L.  T.  158  ;  32  W.  R.  281— C.  A. 

What  included  in  Surety's  Bond.]— The  prose- 
cution of  a  counter-claim  is  a  "  proceeding  con- 
tinued," within  the  meaning  of  the  surety's 
bond  given  in  pursuance  of  s.  7  of  the  Bank- 
ruptcy Act,  1869.  Norman  v.  Bolt,  1  C.  &  E.  77 
—Field,  J. 


VI.    BANKRUPTCY  HOTICB,  PETTTIOH  ATO 
BSCSIYIHO  ORDER. 

1.  Parties  to. 

2.  Amount  and  Nature  of  Debt* 

3.  Powers  of  the  Court, 

4.  Practice, 

a.  In  General. 

b,  Staying  Proceedings. 

o.  Application  to  Rescind  Order. 


1.    PARTIES  TO. 

Any  Creditor  —  Hotioe  served  by  another 
Creditor.]— When  an  act  of  bankruptcy  has  been 
committed  by  the  failure  of  a  debtor  to  comply 

B  2 


103 


BANKRUPTCY— Notice,  Petition  and  Receiving  Order. 


104 


with  a  bankruptcy  summons,  any  creditor  may 
avail  himself  of  it  for  the  purpose  of  presenting 
a  bankruptcy  petition  against  the  debtor  ;  the 
right  to  petition  is  not  limited  to  the  creditor 
who  has  served  the  bankruptcy  notice.  Dearie, 
Ex  parte,  Hastings,  In  re,  infra. 

Trustee  for  absolute  Owner.]— Under  the 
Bankruptcy  Act,  1883,  as  under  the  Bankruptcy 
Act,  1869,  a  mere  trustee  of  a  debt  for  an 
absolute  beneficial  owner  is  not  entitled  to  pre- 
Kent  a  bankruptcy  petition  against  the  debtor 
unless  the  cestui  que  trust,  if  capable  of  dealing 
with  the  debt,  joins  as  a  co-petitioner.  Oulley, 
Ex  parte  (9  Gh.  D.  307),  followed.  Dearie,  Ex 
parte,  Hastings,  In  re,  14  Q.  B.  D.  184  ;  54  L.  J., 
Q.  B.  74 ;  83  W.  R.  440 ;  1  M.  B.  R.  281— C.  A. 

Leave  to  Amend.] — A  bankruptcy  peti- 
tion having  been  presented  by  a  bare  trustee  of 
a  debt,  and  dismissed  on  the  ground  that  the 
cestui  que  trust  ought  to  have  been  joined  as  a 
petitioner,  leave  was  given  by  the  Court  of 
Appeal  (though  more  than  three  months  had 
elapsed  since  the  presentation  of  the  petition)  to 
amend  it  by  joining  the  cestui  que  trust,  with 
her  consent,  but  the  appellant  was  ordered  to 
pay  the  costs  of  the  appeal,  and  the  costs  (if 
any)  occasioned  by  the  amendment.  Dearie, 
Ex  parte,  Hastings,  In  re,  supra. 

At  the  hearing  of  a  bankruptcy  petition  the 
objection  was  raised  on  behalf  of  the  debtor  that 
the  petitioning  creditor  was  a  mere  trustee  for 
his  father,  and  the  registrar  after  hearing  the 
evidence,  having  come  to  that  conclusion,  the 
petition  was  dismissed  without  leave  to  amend : — 
Held,  that  although  the  registrar  was  justified 
in  so  doing,  as  a  matter  of  indulgence,  leave  to 
amend  the  petition  by  joining  the  father  would 
be  granted,  but  such  leave  must  be  subject  to 
the. condition  that  all  costs  thrown  away  should 
be  paid  by  the  father  within  one  month,  includ- 
ing the  costs  of  the  appeal.  Hinshelwood,  Ex 
parte,  Ellis,  In  re,  4  M.  B.  R.  283— C.  A. 

Substitution   of    Petitioning   Creditors.] — A 

creditor's  petition  in  bankruptcy  founded  on  the 
execution  by  the  debtor  of  a  deed  of  assignment 
for  the  benefit  of  creditors,  was  dismissed  on  the 
ground  that  the  petitioning  creditors  had  assented 
to  the  deed.  More  than  three  months  after  the 
execution  of  the  deed,  two  non-assenting  creditors 
applied  to  rescind  the  order  dismissing  the  peti- 
tion, and  asked  that  their  names  might,  under 
s.  107  of  the  Bankruptcy  Act,  1883,  be  substituted 
for  those  of  the  original  petitioning  creditors : — 
Held,  that  the  court  had  no  jurisdiction  under 
8. 107  to  entertain  the  application,  the  petition 
having  been  dismissed,  and  more  than  three 
months  having  elapsed  since  the  act  of  bank- 
ruptcy upon  which  it  was  founded.  Maugham, 
Ex  parte,  Maugham,  In  re,  21  Q.  B.  D.  21  ;  67 
L.  J.,  Q.  B.  487  ;  69  L.  T.  263  ;  36  W.  R.  846  ;  5 
M.  B.  R.  162— D. 

Liquidator  of  Company.]  —  The  liquidator 
appointed  in  the  voluntary  winding-up  of  a 
company  may  serve  a  bankruptcy  notice,  under 
the  Bankruptcy  Act,  1883,  upon  a  judgment 
debtor   of    the   company.     Winter  hot  torn.    Ex 

£%rtet  Winterbottom,  In  re,  18  Q.  B.  D.  446  ;  66 
.  J.,  Q.  B.  238  ;  56  L.  T.  168  ;  4  M.  B.  R.  6— D. 

— —  Hot  in   his   own  Hame.]— *A   balance 


order  was  made  against  A.  to  pay  to  the  official 
liquidator  of  the  Land  Development  Association 
a  certain  sum  for  calls  due  from  A.  to  the  com- 
pany. The  official  liquidator  brought  an  action 
as  official  liquidator  on  that  order,  and  obtained 
judgment  against  A.,  and  thereupon  issued  a 
bankruptcy  notice  in  his  own  name  as  official 
liquidator  of  the  company.  A  petition  was  pre- 
sented against  A.,  founded  on  that  notice,  and 
came  on  for  hearing  before  the  registrar,  who 
dismissed  it,  and  from  his  dismissal  this  appeal 
was  brought: — Held,  that  the  petition  was 
rightly  dismissed  by  the  registrar,  as  it  was 
irregular.  Mackay,  Ex  parte,  Shirley,  In  re,  58 
L.  T.  237— D. 

Purchase  by  Creditor  of  Debt — Absence  of  mala 
fides.] — A.  was  secretary  to  a  death  club,  and  as 
such  received  sums  of  money  and  paid  all  claims 
owing  to  members.  Certain  mistakes  having 
occurred  in  A.'s  accounts,  A.  agreed  to  refund  all 
sums  missing,  and  in  addition  A.  paid  by  bills 
45Z.  each  to  B.  and  C,  members  of  the  club,  for 
claims  which  they  were  entitled  to  have  paid  by 
the  club.  A.  absconded,  and  his  whereabouts 
was  unknown.  B.  purchased  bona  fide  for  152. 
C.'s  debt  of  452.,  so  as  to  enable  him  to  take  pro- 
ceedings in  bankruptcy  against  A.  B.  presented 
a  petition,  and  a  receiving  order  was  obtained. 
Against  that  order  A.  appealed  : — Held,  that  as 
B.'s  purchase  of  C.'s  debt  was  made  perfectly 
bona  fide,  it  was  valid  and  not  an  abuse  of  the 
bankruptcy  laws,  and  that  the  receiving  order 
was  therefore  well  founded.  Baker,  JSx  parte, 
Baker,  in  re,  58  L.  T.  233 ;  36  W.  R.  558 ;  5 
M.  B.  R.  5— D. 

Joint  Petition  by  Persons  not  Joint  Traders.] 

— Where  debtors  who  are  neither  partners  nor 
joint  traders  join  in  presenting  a  bankruptcy 
petition,  the  petition  is  an  abuse  of  the  process 
of  the  court,  and  the  court  has  jurisdiction,  not- 
withstanding s.  8  of  the  Bankruptcy  Act,  1883, 
to  refuse  to  make  a  joint  receiving  order.  Official 
Beeeiver,  Ex  parte,  Bond,  In  re,  21  Q.  B.  D.  17  ; 
57  L.  J.,  Q.  B.  501 ;  58  L.  T.  887  ;  36  W.  R.  700 ; 
5  M.  B.  R.  146— Cave,  J. 

Hotioe  in  Hame  of  Partners. — Bankruptey  of 
one  Partner  before  Hearing  of  Petition.]— After 
the  bankruptcy  of  a  partner  and  the  appointment 
of  a  trustee  of  his  property  his  solvent  partner 
has  a  right  to  receive,  and  can  give  a  good  dis- 
charge for,  the  partnership  assets,  and  is  entitled, 
for  the  purpose  of  collecting  or  recovering  the 
assets,  to  use  the  name  of  the  trustee,  upon  giving 
him  an  indemnity.  After  one  of  two  partners 
had  filed  a  liquidation  petition  and  a  receiver 
had  been  appointed,  a  judgment  was  recovered 
in  an  action  previously  commenced  in  the  names 
of  the  two  partners  against  O.,  a  debtor  of  the 
firm.  A  bankruptcy  notice  in  the  names  of  the  two 
partners  was  then  served  on  O. ;  he  failed  to 
comply  with  it  within  the  seven  days  limited  for 
the  purpose,  and  a  bankruptcy  petition  was  pre- 
sented against  him  in  the  names  of  the  two 
partners.  Before  this  petition  came  on  to  be' 
heard,  the  creditors  of  the  partner  who  had  filed 
the  liquidation  petition  had  resolved  on  a  liqui- 
dation by  arrangement,  and  had  appointed  a 
trustee  of  his  property  : — Held,  that  though  there 
was  a  good  act  of  bankruptcy,  a  receiving  order 
could  not  properly  be  made  against  O.,  unless  the 
trustee  in  the  liquidation  was  joined  as  a  co- 


105         BANKRUPTCY— Notice,  Petition  and  Receiving  Order. 


106 


petitioner.  Owen,  Ex  parte,  Owen,  In  re,  13  Q. 
B,  D.  113 ;  53  L.  J.,  Ch.  863  ;  50  L.  T.  514  ;  32 
Wm  R  811  ;  1  M.  B.  R.  93— C.  A. 

**Crtditor  who  has  obtained  final  Judgment." 
— AstigBM  of  Judgment  Debt.]— In  the  Bank- 
ruptcy Act,  1883  (46  &  47  Vict.  c.  52),  8. 4,  sub-s. 
1  (V)— which  enables  a  creditor  who  has  obtained 
t  final  judgment  against  a  debtor  to  issue  a 
bankruptcy  notice  requiring  him  to  pay  or  secure 
the  debt — the  words  "creditor  who  has  obtained 
i  final  judgment "  do  not  include  an  assignee  of 
the  judgment  debt.  Ex  parte  Woodall  (13  Q. 
B.  D.  479),  explained.  Blanchett,  Ex  parte. 
Keeling,  In  re,  17  Q.  B.  D.  303  ;  55  L.  J.,  Q.  B. 
327 ;  34  W.  R.  438  ;  3  M.  B.  R.  157— C.  A. 

M  Judgment  Creditor"— Alimony— Wife.]— By 
a 103, sub-s.  5,  Bankruptcy  Act,  1883,  "Where 
under  s.  5  of  the  Debtors  Act,  1869,  application 
m  made  by  a  judgment  creditor  to  a  court  having 
bankruptcy  jurisdiction  for  the  committal  of  a 
judgment  debtor,  the  court  may,  if  it  think  fit, 
decline  to  commit,  and  in  lieu  thereof,  with  the 
consent  of  the  judgment  creditor  .  . 
make  a  receiving  order  against  the  debtor."  An 
older  was  made  in  the  Divorce  Court  for  pay- 
ment of  alimony.  The  payments  having  fallen 
into  arrear,  a  judgment  summons  was  issued  by 
the  wife  against  her  husband,  and,  with  the  con- 
sent of  the  wife  and  in  the  absence  of  the 
husband,  a  receiving  order  was  made  in  lieu  of  an 
older  for  committal.  The  case  was  ordered  to  be 
reheard : — Held,  that  the  wife  was  not  a  judgment 
creditor  within  the  meaning  of  sub-s.  5  of  s.  103, 
and  that  a  receiving  order  could  not  be  made. 
Otway.  Ex  parte y  Otway,  In  re,  58  L.  T.  885  ;  36 
W.  R.  698  ;  5  M.  B.  R.  115— Cave,  J. 

Damages    in   Divorce   Suit  —  Payment 

to  Husband*}— In  a  divorce  suit  by  a  husband  a 
decree  of  dissolution  of  the  marriage  was  made 
whereby  F.,  the  co-respondent,  was  ordered  to 
pay  into  court  the  amount  of  damages  assessed  by 
the  jury.  A  further  order  was  made  that  E. 
Aould  pay  the  money  to  the  husband  for  the 
purposes  of  settlement  upon  the  children  of  the 
carriage.  F.  failed  to  pay,  whereupon  the  hus- 
band applied  to  the  judge  in  bankruptcy  for  a 
committal  order  under  s.  5  of  the  Debtors  Act, 
1969.  F.  had  means  sufficient  to  pay  part  only 
of  the  money.  The  judge,  acting  under  s.  103, 
■dML5,of  the  Bankruptcy  Act,  1883,  made  a 
receiving  order  in  lieu  of  an  order  for  committal : 
—field,  that  the  judge  bad  no  jurisdiction  to 
nske  the  order,  inasmuch  as  the  husband,  being 

*  mere  receiver  or  collector  for  the  court  of  money 
not  to  be  applied  for  his  own  benefit,  was  not 

•  ""judgment  creditor"  within  the  meaning  of  s. 
101,  sub-*.  5,  of  the  Bankruptcy  Act,  1883 ;  but 
that  an  order  should  be  made  against  F„  under 
t.  5  of  the  Debtors  Act,  1869,  for  payment  of  the 
money  by  instalments.  Fryer,  Ex  pa  He,  Fryer, 
/*  re,  17  Q.  B.  D.  718  ;  55  L.  J.,  Q.  B.  478  ;  55 
LT.276;  34  W.  R.  766  ;  3M.B.R.  231— C.  A. 


1  AMOUNT  AND  NATURE  OF  DEBT. 

Amount—Costs  of  issuing  abortive  Exeeu- 
■•*.] — The  costs  of  an  abortive  execution 
cannot  be  added  to  the  judgment  debt  for  the 
pvpose  of  making  up  the  amount  of  debt  re- 
Vand  by  the  Bankruptcy  Act,  1883,  s.  6,  to 


support  a  bankruptcy  petition.  Long,  Ex  parte, 
Ouddeford,  Ex  parte,  Long,  In  re,  20  Q.  B.  D. 
316  ;  57  L.  J.,  Q.  B.  360  ;  58  L.  T.  664  ;  36  W.  R. 
346  ;  5  M.  B.  R.  29— C.  A. 

Valuation  of  Security  by  Secured  Creditor.] — 
When  a  secured  creditor  presents  a  bankruptcy 
petition  against  his  debtor  it  is  not  necessary 
that  the  estimate  given  by  the  petitioner  of  the 
value  of  his  security  should  be  a  true  estimate  ; 
but,  if  an  adjudication  is  made,  the  trustee  in 
the  bankruptcy  will  be  entitled  to  redeem  the 
security  at  the  amount  of  the  petitioner's  esti- 
mate. Taylor,  Ex  parte,  Lacey,  In  re,  13  Q.  B. 
D.  128  ;  1  M.  B.  R.  113— D. 

Judgment  on  which  Execution  stayed — Gar- 
nishee Order  absolute  against  Debtor.] — Where 
a  creditor  has  obtained  final  judgment  and  a 
garnishee  order  absolute  has  been  made  against 
the  judgment  debtor  as  garnishee,  execution  on 
the  judgment  must  be  taken  to  be  stayed  so  long 
as  the  garnishee  order  remains  undischarged, 
and  the  creditor  is  not  entitled  to  serve  a  bank- 
ruptcy notice  on  the  garnishee  in  respect  of  the 
judgment  debt,  even  though  the  debt  in  respect 
of  which  the  garnishee  order  was  made  has  been 
in  fact  paid.  Hyde,  Ex  parte.  Connan,  In  re,  20 
Q.  B.  D.  690  ;  57  L.  J.,  Q.  B.  472  ;  59  L.  T.  281  ; 
5  M.  B.  R.  89— C.  A. 

Interpleader  Order.] — Where  goods  taken 

in  execution  under  a  judgment  are  claimed  by  a 
third  party,  and  an  interpleader  order  is  made, 
under  which  the  sheriff  withdraws  from  posses- 
sion, execution  on  the  judgment  has  been  stayed, 
within  the  meaning  of  s.  4,  sub-s.  1  (^),  of  the 
Bankruptcy  Act,  1883,  and  therefore  the  judg- 
ment creditor  cannot  issue  a  bankruptcy  notice. 
Ford,  Ex  parte,  Ford,  In  re,  18  Q.  B.  D.  369  ; 
56  L.  J.,  Q.  B.  188  ;  56  L.  T.  166  ;  3  M.  B.  R. 
283— D. 

On  14th  Jan.,  judgment  was  recovered  against 
the  debtor  for  4462.  and  execution  was  issued 
under  which  the  sheriff  levied,  but  a  third  per- 
son having  claimed  the  goods,  an  interpleader 
order  was  obtained,  whereby  upon  payment  of 
20/.  into  court  by  the  claimant,  the  sheriff  was 
directed  to  withdraw.  On  14th  March,  a  bank- 
ruptcy notice  under  8.  4,  sub-s.  1  (^),  of  the 
Bankruptcy  Act,  1883,  requiring  payment  of  the 
debt,  was  served  upon  the  debtor,  but  the  notice 
was  dismissed  by  the  registrar  of  the  county 
court  on  the  ground  that  within  the  meaning  of 
the  section,  execution  had  been  stayed : — Held, 
that  there  had  been  no  stay,  and  that  the  cre- 
ditor was  entitled  to  issue  a  bankruptcy  notice. 
Lindsey,  Ex  parte,  Bates,  In  re,  57  L.  T.  417  ; 
35  W.  R.  668  ;  4  M.  B.  R.  192— D. 

On  July  8th  judgment  was  recovered  against 
the  debtor,  and  execution  was  issued  under 
which  the  sheriff  levied  on  July  11th.  On  July 
13th,  a  third  person  having  claimed  the  goods, 
an  interpleader  summons  was  issued  by  the 
sheriff ;  on  the  same  day  a  bankruptcy  notice 
under  s.  4,  sub-s.  1  (?),  of  the  Bankruptcy  Act, 
1883,  was  served  by  the  judgment  creditor 
upon  the  debtor,  on  which  a  receiving  order  was 
subsequently  made  against  him  :  —Held,  that  at 
the  time  when  the  bankruptcy  notice  was  issued 
the  creditor  was  not  in  a  position  to  issue  execu- 
tion, and  that  the  receiving  order  must  be  set 
aside.  Phillip*,  Ex  parte,  Phillips,  In  re, 
5  M.  B.  R.  40— D. 


107 


BANKRUPTCY— Notice,  Petition  and  Receiving  Order. 


108 


Foreclosure  Decree.] — A  creditor  who,  as 

equitable  mortgagee,  has  obtained'  a  foreclosure 
decree  and  an  order  for  sale  of  the  property  of 
the  debtor  is  still,  if  no  such  sale  is  found  to  be 
possible,  at  liberty  to  serve  a  bankruptcy  notice 
on  the  debtor  and  to  take  further  proceedings  ; 
and  the  fact  of  such  an  order  for  sale  not  having 
been  carried  out  is  not  sufficient  ground  for  an 
adjournment  by  the  registrar  of  further  pro- 
ceedings on  the  notice  on  the  application  of  the 
debtor  under  r.  139  of  the  Bankruptcy  Rules, 
1886.  Me*ton,  Ex  parte,  Kelday,  In  re,  36 
W.  B.  685— C.  A. 


Agreement  for  Payment  by  Instalments 


— Sight  to  issue  Second  Hotice  on  Default] — If 
execution  may  be  issued  on  a  judgment,  a  bank- 
ruptcy notice  under  s.  4,  sub-s.  1  (g),  of  the 
Bankruptcy  Act,  1883,  may  be  issued;  where, 
therefore,  a  bankruptcy  notice  had  been  issued 
in  respect  of  a  judgment  debt  and  withdrawn,  a 
second  bankruptcy  notice  may  be  issued  in  respect 
of  the  same  debt.  Feast,  Ex  parte,  Feast,  In  re, 
4  M.  B.  R.  37— C.  A. 

Judgment  for  debt  and  costs  having  been 
recovered  against  a  debtor,  the  costs  were  taxed 
and  the  creditor  issued  a  bankruptcy  notice  in 
respect  of  the  judgment  debt  and  costs.  An 
agreement  was  thereupon  come  to  between  the 
debtor  and  the  creditor,  by  which  the  debt  and 
costs  were  agreed  at  500/.,  and  the  debtor  agreed 
to  pay  100/.  at  once,  and  the  balance  by  monthly 
instalments  of  20/.  ;  in  case  any  instalment  was 
not  duly  paid,  the  whole  amount  then  unpaid 
was  forthwith  to  become  due  and  payable.  The 
100/.  and  some  of  the  instalments  were  duly 
paid,  but  on  default  subsequently  being  made,  a 
bankruptcy  notice  for  the  unpaid  balance  was 
issued  by  the  creditor : — Held,  that  the  agree- 
ment entered  into  was  to  the  effect  that,  upon 
default  of  payment  of  any  instalment,  the  unpaid 
balance  was  to  become  due  under  the  judgment, 
and  that  the  creditor  was  entitled  to  issue  a 
bankruptcy  notice  in  respect  of  the  debt.    lb. 

Where  Execution  cannot  be  Issued  without 
Leave.] — A  judgment  against  a  firm  cannot  be 
made  the  subject  of  a  bankruptcy  notice  under 
s.  4,  sub-s.  1  (<7),  of  the  Bankruptcy  Act,  1883, 
against  a  partner  against  whom  execution  could 
not,  under  Ord.  XLII.  r.  10,  have  issued  upon 
the  judgment  without  leave.  Ide,  Ex  parte, 
Ide,  In  re,  17  Q.  B.  D.  756  ;  55  L.  J.,  Q.  B.  484  ; 
35  W.  R.  20 ;  3  M.  B.  R.  239— C.  A. 

The  executor  of  a  creditor  who  has  obtained  a 
final  judgment  is  not  entitled  to  issue  a  bank- 
ruptcy notice  against  the  judgment-debtor,  un- 
less he  has  obtained  leave  from  the  court,  under 
rule  23  of  Ord.  XLII.  of  the  rules  of  the  Supreme 
Court  of  1883,  to  issue  execution  on  the  judg- 
ment Under  sub-s.  1  (g)  of  s.  4  of  the  Bank- 
ruptcy Act,  1883,  the  creditor  who  issues  a  bank- 
ruptcy notice  must  be  in  a  position  to  issue 
execution  on  the  judgment  WoodhaU,  Ex 
paHe,  WoodhaU,  In  re,  13  Q.  B.  D.  479 ;  53 
L.  J.,  Ch.  966 ;  50  L.  T.  747 ;  32  W.  R.  774  ;  1 
M.  B.  R.  201— C.  A. 

Conditional  Payment  of  Debt.]— Within  seven 
days  after  the  service  of  a  bankruptcy  notice  the 
debtor  gave  to  the  creditor  a  promissory  note, 
payable  two  months  after  date,  for  the  amount 
of  the  debt,  which  note  the  creditoi  accepted  : — 
Held,  that,  the  note  being  a  conditional  payment 


of  the  debt,  the  creditor  could  not,  during  the 
currency  of  the  note,  avail  himself  of  the  bank- 
ruptcy notice  to  obtain  a  receiving  order  against 
the  debtor.  Matthew,  Ex  parte,  Matthew,  In  re, 
12  Q.  B.  D.  506  ;  51  L.  lC  179 ;  32  W.  R.  813; 
1  M.  B.  R.47-C.A. 

Payment  prevented  —  Attachment  of  Sham 
by  Judgment  Creditor.] — A  judgment  creditor 
having  served  a  bankruptcy  notice  on  the  debtor, 
within  the  seven  days  allowed  for  complying 
with  the  notice,  obtained  a  charging  order  on 
certain  shares  belonging  to  the  debtor: — Held, 
that  the  creditor  had  not,  by  attaching  the  shares, 
prevented  the  debtor  from  paying  the  judgment 
debt,  and  that  the  debtor  was  not  entitled  to 
have  the  bankruptcy  notice  set  aside.  McMurdo, 
Ex  parte,  Sedgwick,  In  re,  60  L.  T.  9  ;  37  W.  R. 
72  ;  5  M.  B.  R.  262— C.  A. 

"Final  Judgment"— Judgment  for  Costa.  J  - 
At  the  trial  of  an  action  in  the  Chancery  Divi- 
sion, upon  motion  for  judgment  in  default  of 
pleading,  judgment  was  given  ordering  and 
adjudging  that  the  defendant  should  be  per- 
petually restrained  from  practising  as  a  solicitor 
at  Liverpool  or  otherwise,  in  violation  of  his 
covenant  with  the  plaintiff.  And  the  court 
declared  that  the  partnership  between  the  plain- 
tiff and  the  defendant  ought  to  be  dissolved  as 
from  the  date  of  the  plaintiff's  notice,  and 
ordered  and  decreed  the  same  accordingly.  And 
it  was  ordered  that  an  inquiry  should  be  made 
what  was  the  amount  of  the  damages  which  the 

Slaintiff  had  sustained  by  reason  of  the  defen- 
ant's  breach  of  covenant,  and  that  the  defen- 
dant should  within  fourteen  days  from  the  date 
of  the  chief  clerk's  certificate,  pay  the  amount 
of  the  damages,  when  certified,  to  the  plaintiff. 
And  it  was  ordered  that  the  defendant  should 

y  to  the  plaintiff  his  taxed  costs  of  the  action, 
he  costs  were  taxed,  and  were  partly  paid  by 
the  defendant.  The  inquiry  as  to  damages  was 
not  prosecuted : — Held,  that  the  order  for  the 
payment  of  costs  was  a  "  final  judgment "  with- 
in the  meaning  of  s.  4,  sub-s.  1  ($0,  of  the  Bank- 
ruptcy Act,  1883,  and  that  the  plaintiff  was 
entitled  to  serve  the  defendant  with  a  bank- 
ruptcy notice  for  the  unpaid  balance  of  costs. 
Chinery,  Ex  parte  (12  Q.  B.  D.  342),  explained. 
Moore,  Ex  parte,  Faithfull,  In  re,  14  Q.  B.  D. 
627  ;  54  L.  J.,  Q.  B.  190  ;  52  L.  T.  376  ;  33  W.  R. 
438  ;  2  M.  B.  R.  52— C.  A. 

The  defendants  to  an  action  for  the  specific 
performance  of  a  contract  executed  the  deeds 
necessary  to  carry  out  the  contract,  and  an  order 
was  then  made  by  consent  that,  on  the  defen- 
dants paying  the  plaintiff 's  taxed  costs  of  the 
action,  all  further  proceedings  in  the  action 
should  be  stayed.  The  costs  were  taxed,  and  an 
order  was  made  that  the  defendants  should,  on 
or  before  a  day  named,  pay  the  taxed  amount 
Payment  was  not  made  within  the  time  ap- 
pointed : — Held,  that  the  order  for  payment  was 
not  a  "  final  judgment,"  within  the  meaning  of 
sub-s.  1  (y)  of  8.  4  of  the  Bankruptcy  Act,  1883, 
and  that  a  bankruptcy  notice  could  not  be 
founded  on  it.  Schmitz,  Ex  parte,  Cohen,  In  re, 
12  Q.  B.  D.  609 ;  53  L.  J.,  Ch.  1168  ,*  50  L.  T. 
747  ;  32  W.  R.  812  ;  1  M.  B.  R.  65— C.  A. 

In  an  action  in  the  Chancery  Division  the 
defendant  obtained  under  Ord.  XXVII.,  r.  1,  an 
order  for  the  dismissal  of  the  action  for  want  of 
prosecution,  and  the  payment  of  costs  by  the 


B 


109        BANKRUPTCY— Notice,  Petition  and  Receiving  Order. 


110 


plaintiff  .—Held,  that  the  order  was  not  a  "  final 
jodpuent"  within  the  meaning  of  sub-s.  1  (g)  of 
a  4  of  the  Bankruptcy  Act,  1883,  and  that  the 
defendant  was  not  entitled  to  serve  the  plaintiff 
with  a  bankruptcy  notice  in  respect  of  such 
order.  Strathmore  (Earl),  Ex  parte,  Riddell, 
h  re,  20  a  B.  D.  612 ;  57  L.  J.,  Q.  B.  259  ; 
ML.T.838;  86  W.  R.  532  ;  5  M.  B.  R.  59— 
CLA. 

—  "Balance  Order."]— A  " balance  order" 
in  respect  of  calls  made  on  a  contributory  in 
the  winding-up  of  a  company  is  not  a  "  final 
judgment "  within  the  meaning  of  sub-s.  1  (0) 
of  a  4  of  the  Bankruptcy  Act,  1883,  and  a  bank- 
raptcy  notice  cannot  be  issued  in  respect  of  such 
an  order.  Ex  parte  Whinney  (13  Q.  B.  D.  476), 
followed.  Grimtoade,  Ex  parte  Tennent,  In  re, 
17Q.B.  D.  357;  55  L.  J.,  Q.  B.  495  ;  3M.B.R. 
1S6-C.A. 

A  **  balance  order n  made  in  the  voluntary 
winding-op  of  a  company  on  a  contributory,  for 
the  payment  cf  calls  which  had  been  made  upon 
him  before  the  commencement  of  the  winding-up, 
is  not  a  "final  judgment"  within  the  meaning 
of  snb-a.  1  (g)  of  s.  4  of  the  Bankruptcy  Act, 
1883,  and  therefore  a  bankruptcy  notice  cannot 
be  issued  in  respect  of  such  an  order.  Whinney, 
Eat  parte,  Sanders,  In  re,  13  Q.  B.  D.  476; 
lM.aH  185— D. 

Garnishee  Order  Absolute.] — A  garnishee 

order  absolute  is  not  a  "  final  judgment "  against 
the  garnishee  within  sub-s.  1  (g)  of  s.  4  of  the 
Bankruptcy  Act,  1883.  and  the  judgment  creditor 
who  has  obtained  the  order  cannot  issue  a  bank- 
ruptcy notice  against  the  garnishee  in  respect  of 
it  Ckinery,  Ex  parte,  Ckinery,  Inre,  12  Q.B.D. 
342;  53  L.  J.,  Ch.  662  ;  50  L.  T.  342  ;  32  W.  R. 
4» ;  1  M.  B.  R.  31— C.  A. 

—  Order  for  Payment  of  Alimony,  pendente 
HtaT— An  order  for  the  payment  of  alimony 
pendente  lite  is  not  a  "final  judgment "  against 
the  husband  within  the  meaning  of  sub-s.  1  (0) 
«f  a  4  of  the  Bankruptcy  Act,  1883,  and  a  bank- 
ruptcy notice  cannot  be  issued  against  the 
BnsBand  in  respect  of  arrears  due  under  such  an 
«der.  Moore,  Ex  parte  (14  Q.  B.  D.  627) 
tfstinguiahed.  Henderson,  Ex  parte,  Henderson, 
h  r»,20  Q.  B.  D.  509 ;  67  L.  J.,  Q.  B.  258  ; 
WL.  T.  835  :  36  W.  R.  567 ;  5  M.  B.  R.  52— 
C.A, 

Jtdgment  by  Consent— Failure  to  file  Judge's 
Wor.  J  —  Where  a  creditor  in  whose  favour  a 
judgment  has  been  entered  up  by  consent  omits 
to  tie  the  judge's  order  in  accordance  with 
a  27  of  the  Debtors  Act,  1869,  he  is  nevertheless 
entitled  to  serve  the  debtor  with  a  bankruptcy 
■otice  founded  on  such  judgment  Quest,  Ex 
f*rte,  Russell,  In  re,  37  W.  R.  21  ;  6  M.  B.  R. 
266-C.A. 


3.  POWERS  OF  THE  COURT. 


to  Refuse  "  Sufficient  Cause."]— The 
fact  that  shortly  before  the  presentation  of  a 
taknrptcy  petition  against  a  debtor  he  has, 
vita  the  assent  of  a  large  majority  of  his 
creditors!  executed  a  deed  assigning  the  whole 
*f  *■  property  to  trustees  appointed  by  the 
creditors,  to  be  administered  by  them  as  in  bank- 


ruptcy, is  not,  within  the  meaning  of  sub-s.  3  of 
8.  7  of  the  Bankruptcy  Act,  1883,  a  "  sufficient 
cause  "  for  refusing  to  make  a  receiving  order  on 
the  petition.  Dixon,  Ex  parte,  Dixon,  In  re, 
13  Q.  B.  D.  118  ;  50  L.  J.,  Ch.  769  ;  50  L.  T.  414  ; 
32  W.  R.  887  ;  1  M.  B.  R.  98— C.  A. 
The  fact  that  a  debtor  has,  shortly  before  the 

Presentation  of  a  bankruptcy  petition  against 
im,  entered  into  an  arrangement  with  his 
creditors  (to  which  the  petitioner  has  not 
assented),  is  not,  however  beneficial  to  the 
creditors  the  terms  of  the  arrangement  may 
be,  a  u  sufficient  cause  "  within  the  meaning  of 
8.  7  (3)  of  the  Bankruptcy  Act,  1883,  for  dis- 
missing the  petition.  There  is  no  jurisdiction 
under  such  circumstances  to  dismiss  the  peti- 
tion, and  there  is  no  jurisdiction  to  adjourn  the 
hearing  of  it  with  a  view  to  its  ultimate  dis- 
missal in  case  the  arrangement  shall  be  found  to 
work  well.  Oram,  Exparte,  Watson,  In  re,  16 
Q.  B.  D.  399  ;  52  L.  T.  785  ;  33  W.  R.  890 ;  2 
M.  B.  R.  199— C.  A. 

The  decision  in  Dixon,  Ex  parte  (13  Q.  B.  D. 
118)  did  not  depend  upon  the  particular  terms 
of  the  arrangement  in  that  case,  but  on  the 
fact  that  the  arrangement  was  made  at  such  a 
time  and  in  such  a  manner  as  not  to  bind 
dissentient  creditors.    lb. 

Power  to  make  Receiving  Order  "  in  lion  of" 
Committal  Order.] — A  judgment  creditor  for  a 
sum  of  311.  applied  in  a  county  court  for  the 
committal  of  the  judgment  debtor  on  the  ground 
that  he  had  means  to  satisfy  the  debt,  and  had 
not  done  so.  The  judge,  after  hearing  evidence, 
held  that  the  debtor  had  no  means  of  satisfying 
the  debt,  and  consequently  he  refused  to  com- 
mit, but  on  the  application  of  the  creditor  made 
a  receiving  order  m  lieu  of  a  committal  order 
under  sub-s.  (5)  of  s.  103  of  the  Bankruptcy  Act, 
1883.  On  a  summons  for  a  prohibition  it  was 
held  that  the  learned  judge  had  a  discretion  to 
make,  and  had  properly  made,  the  receiving 
order  "  in  lieu  of  "  a  committal  order,  although 
he  could  not  have  made  a  committal  order  in 
consequence  of  the  inability  of  the  judgment 
debtor  to  satisfy  the  debt.  Reg.  v.  Sussex 
County  Court  Judge,  59  L.  T.  82— D. 


Petition  presented  in  wrong  Court.]— If 


a  bankruptcy  petition  is  by  inadvertence  pre- 
sented in  a  wrong  bankruptcy  court,  the  court 
to  which  it  is  presented  has  jurisdiction  to  make 
a  receiving  order.  If,  however,  the  petition  is 
wilfully  presented  in  a  wrong  court,  this  is  a 
ground  for  dismissing  it.  The  divisional  court 
made  a  receiving  order,  which  it  held  that  the 
court  ought  to  have  made,  and  to  which  the 
debtor  had  raised  no  other  objection  than  want 
of  jurisdiction,  giving  leave  to  the  debtor  to 
apply  af terwards  to  the  divisional  court  to  dis- 
charge the  order  on  any  ground  arising  since  the 
hearing  in  the  county  court.  May,  Ex  parte, 
Drightmore,  In  re,  14  Q.  B.  D.  37  ;  51  L.  T.  710  ; 
33  W.  R.  598 ;  1  M.  B.  R.  263— D. 

Judgment  Debt— Power  of  Court  to  inquire 
into.] — The  court  of  bankruptcy  has  power  to  go 
behind  a  judgment  and  inquire  into  the  considera- 
tion for  the  judgment  debt,not  only  at  the  instance 
of  the  trustee  in  the  bankruptcy  of  the  debtor 
upon  the  question  of  the  proof  of  the  debt,  but 
also  at  the  instance  of  the  judgment  debtor  him- 


Ill 


BANKRUPTCY— Notice,  Petition  and  Receiving  Order. 


112 


self  upon  the  hearing  of  a  petition  by  the  judg- 
ment creditor  for  a  receiving  order,  even  though 
the  debtor  has  consented  to  the  judgment ;  and, 
if  on  the  hearing  of  the  petition  facts  are  alleged 
by  the  debtor,  of  which  evidence  is  tendered, 
and  which,  if  proved,  would  show  that,  notwith- 
standing the  judgment,  there  is,  by  reason  of 
fraud  or  otherwise,  no  real  debt,  the  court 
ought  not  to  make  a  receiving  order  without 
first  inquiring  into  the  truth  of  the  debtor's 
allegations.  Kibble,  Ex  parte  (10  L.  B.  Ch. 
373),  discussed  and  followed.  Lennox,  Ex  parte, 
Lennox,  In  re,  16  Q.  B.  D.  315  ;  55  L.  J.,  Q.  B.  45  ; 
54  L.  T.  452 ;  34  W.  B.  51— C.  A. 

Although  upon  a  petition  by  a  judgment 
creditor  for  a  receiving  order,  the  court  has 
power  at  the  instance  of  the  judgment  debtor  to 
go  behind  the  judgment,  yet,  if  the  facts  alleged 
by  the  debtor  as  a  reason  for  so  doing,  are  in  the 
opinion  of  the  registrar  immaterial  and  insuffi- 
cient, he  is  right  in  refusing  to  hear  evidence  in 
support  of  such  facts  and  in  making  a  receiving 
order  as  prayed.  Lipsoombe,  Em  parte,  Lips- 
combe,  In  re,  4  M.  B.  B.  43— C.  A. 

The  Court  of  Bankruptcy  has  power  to  go 
behind  a  judgment  at  the  instance  of  the 
debtor,  upon  the  hearing  of  a  petition  presented 
by  the  judgment  creditor  for  a  receiving  order  ; 
but  the  court  will  not  do  so  on  the  mere  sugges- 
tion by  the  debtor  that  the  judgment  debt  is  bad, 
if  it  considers  that  the  objections  raised  are 
frivolous.  Beyfu*,  Ex  parte,  or  Saville,  Ex  parte, 
SaviUe,  In  re,  35  W.  B.  791  ;  4  M.  B.  B.  277— 

a  a. 

A  judgment  debtor  having  been  served  with  a 
bankruptcy  notice,  without  alleging  fraud  or 
that  there  had  been  a  miscarriage  of  justice  at 
the  trial,  proposed  to  give  evidence  before  the 
registrar  to  show  that  the  issues  in  the  action, 
which  had  been  tried  before  a  judge  and  jury, 
had  been  wrongly  decided :— Held,  that  the 
registrar  rightly  refused  to  admit  such  evidence. 
Scotch  Whiskey  Distillers,  Ex  parte,  Flatau, 
In  re,  22  Q.  B.  D.  83  ;  37  W.  B.  42— C.  A. 


4.  PBACTICE. 
a.  In  General. 

Form  of  Notice— Liquidator.]— By  the  Com- 
panies Act,  1862,  ss.  95  and  133,  a  liquidator 
appointed  in  the  voluntary  winding-up  of  a 
company  is  empowered  "  to  bring  or  defend  any 
action,  suit,  or  prosecution,  or  other  legal  pro- 
ceeding, civil  or  criminal,  in  the  name  and  on 
behalf  of  the  company/'  A  liquidator  appointed 
in  the  voluntary  winding-up  of  a  company  served 
upon  the  judgment  debtor  of  the  company  a 
bankruptcy  notice  headed  "  Ex  parte  K,  liqui- 
dator of  the  M.  Bank,  Limited/'  In  the  body 
of  the  notice  the  debtor  was  required  to  pay  to 
N.,  "the  liquidator  of  the  bank,"  the  sum 
"claimed  by  him"  as  the  amount  due  on  the 
judgment,  or  to  secure  or  compound  for  the 
same  sum  "  to  his  satisfaction,"  &c.  The  debtor 
was  not  in  any  way  misled  by  the  terms  of  the 
notice : — Held,  that  the  form  of  the  notice  must 
comply  strictly  with  the  provisions  of  s.  95,  a 
substantial  compliance  not  being  sufficient,  and 
therefore,  that  the  notice,  not  being  in  the  name 
of  the  company,  was  bad.  Winterbottom,  Ex 
parte,  Winterbottom,  In  re,  18  Q.  B.  D.  446  ;  66 
L.  J.,  Q.  B.  238  ;  56  L.  T.  168  ;  4  M.  B.  B.  5— D. 


Omission  of  Hame— Amount  of  Debt]— 

On  14th  Jan.,  judgment  was  recovered  against 
the  debtor  for  446/.  and  execution  was  issued 
under  which  the  sheriff  levied,  but  a  third  person 
having  claimed  the  goods,  an  interpleader  order 
was  obtained,  whereby  upon  payment  of  2W. 
into  court  by  the  claimant,  the  sheriff  was 
directed  to  withdraw  :— Held,  that  the  fact  that 
the  creditor  had  omitted  to  insert  his  name  in 
the   heading  of   the  bankruptcy  notice,  such 

heading  being  left "  Ex  parte "  —the  notice 

being  sued  out  by  him  in  person  and  giving 
complete  information  on  the  face  of  it  who  the 
creditor  was — did  not  render  the  notice  invalid ; 
that  the  fact  of  the  notice  claiming  the  whole 
debt  of  446/.  without  considering  the  20/.  which 
might  be  stayed,  only  amounted  to  a  formal 
error  which  the  court  would  rectify.  Lindtey, 
Ex  parte,  Bates,  In  re,  57  L.  T.  417 ;  36  W.  B.  668 ; 
4  M.  B.  B.  192— D. 

Signature  of  Petition  by  Attorney.  J — A  bank- 
ruptcy petition  by  a  creditor  may  be  signed  on 
his  behalf  by  his  duly  constituted  attorney.  A 
power  of  attorney  authorised  the  attorney  (inter 
alia)  "  to  commence  and  carry  on,  or  to  defend, 
at  law  or  in  equity,  all  actions,  suits,  or  other 
proceedings  touching  anything  in  which  lor  my 
ships  or  other  personal  estate  may  be  in  anywise 
concerned  "  : — Held,  that  this  power  authorised 
the  attorney  to  sign  on  behalf  of  his  principal 
a  bankruptcy  petition  against  a  debtor  of  the 
principal.  Richards,  Ex  parte,  or  Wallace,  Eat 
parte,  Wallace,  In  re,  14  Q.  B.  D.  22 ;  54  L.  J., 
Q.  B.  293  ;  51  L.  T.  551  ;  33  W.  B.  66 ;  1 
M.  B.  B.  246— C.  A. 

Substituted  Service— Death  of  Debtor  before 
Service.] — Where  a  debtor  against  whom  a 
creditors'  petition  in  bankruptcy  has  been  pre- 
sented dies  before  service  of  the  petition  upon 
him,  there  is  no  power  under  s.  108  of  the 
Bankruptcy  Act,  1883,  or  the  Bankruptcy  Rules, 
to  dispense  with  service  or  to  order  substituted 
service  of  the  petition,  and  the  bankruptcy 
proceedings  must  necessarily  be  stayed.  HiU, 
Ex  parte,  Easy,  In  re,  19  Q.  B.  D.  538 ;  66 
L.  f.,  Q.  B.  624  ;  35  W.  R.  819  ;  4  M.  B.  R.  281 
— C.  A. 

Advertisement  in  Newspaper — Discre- 
tion.]— On  appeal  from  an  order  directing  that 
publication  of  a  notice  in  the  London  Gazette 
and  in  the  Times  newspaper  should  be  deemed 
to  be  good  service  of  a  bankruptcy  petition  upon 
the  debtor : — Held,  that  under  Bule  154  and 
Form  16  of  the  Bankruptcy  Rules,  1886,  the 
registrar,  on  being  satisfied  that  the  debtor  was 
avoiding  personal  service,  bad  jurisdiction  to 
make  the  order  in  question  and  that  upon  the 
facts  of  the  case  there  was  no  ground  for  the 
appeal.  Collinson,  Ex  parte,  Collinson,  In  re, 
4  M.  B.  B.  161— C.  A. 

Affidavit — Committee  of  Lunatic] — When  the 
petitioning  creditor  is  a  lunatic  so  found  by 
inquisition,  the  affidavit  verifying  the  petition 
may  be  sworn  by  the  committee  of  the  lunatic 
Brady,  In  re,  19  L.  B.,  Ir.  71— Bk. 

Petition  by  Company.]— Where  a  bank- 
ruptcy petition  presented  by  a  company  under 
s.  148  of  the  Bankruptcy  Act,  1883,  was  not 
I  accompanied  by  the  affidavit  required  by  rale 


113         BANKRUPTCY— Notice,  Petition  and  Receiving  Order.  114 

could  not  have  been  right.  If  the  appeal  ap- 
pears to  be  a  bona  fide  one,  the  hearing  of  the 
bankruptcy  petition  ought  to  be  adjourned.  If 
the  appeal  is  evidently  frivolous,  a  receiving- 
order  ought  to  be  made,  notwithstanding  it* 
pendency.  Hey  worth.  Ex  parte,  Rhodes,  In  re, 
14  Q.  B.  D.  49 ;  54  L.  J.,  Q.  B.  198  ;  52  L.  T. 
201  ;  1  M.  B.  R.  269— C.  A. 

Evidence  of  Seasonable  Ground.] — A  debtor, 
after  the  service  of  a  bankruptcy  notice  upon 
him  under  s.  4,  sub-s.  1  {g),  of  the  Bankruptcy 
Act,  1883,  commenced  an  action  against  his  cre- 
ditor to  set  aside  the  judgment  on  which  such 
notice  was  founded,  and  prayed  that  an  account 
might  be  taken,  and  made  other  claims  in  the 
nature  of  a  counterclaim.  The  debtor  delivered 
the  statement  of  claim  in  the  action,  and  applied 
to  the  court  to  dismiss  the  bankruptcy  notice. 
The  registrar,  after  reading  the  statement  of 
claim,  adjourned  the  application  sine  die,  with 
liberty  to  apply : — Held,  that  the  statement 
of  claim  was  not  evidence,  and  that  the  registrar, 
before  interfering  with  the  operation  of  the 
bankruptcy  notice,  ought  to  have  been  satisfied 
by  evidence  that  the  debtor  had  at  any  rate 
some  reasonable  ground  for  bringing  the  action. 
Basan,  Ex  parte,  Foster,  In  re,  2  M.  B.  R.  29 — 
C.  A.  See  also  Meston,  Ex  parte,  Kilday,  In  r<\ 
ante,  col.  107. 


258  of  the  Bankruptcy  Rules,  1886,  stating  that 
the  person  presenting  the  petition  was  the 
iDtaariied  public  officer  or  agent  of  such  com- 
pany :— Held,  that  the  petition  was  rightly  re- 
fused. Ross,  Ex  parte,  Cripps,  In  re,  5  M.  B.  R. 
«6-Gave,J. 

Evidence  in  Support  of  Petition— Adjourn- 
■ant]— Where,  upon  the  hearing  of  a  bank- 
ruptcy petition  against  a  debtor,  the  evidence 
requisite  under  s.  7,  sub-s.  2,  of  the  Bankruptcy 
Act,  1883.  is  adduced,  it  is  not  necessary,  in  the 
event  of  the  hearing  being  adjourned,  to  give  at 
such  adjourned  hearing  similar  evidence  under 
the  above  sub-section.  Winby,  Ex  parte, 
Wiuky,  In  re,  3  M.  B.  R.  10&— C.  A. . 

Transfer  to  Bankruptcy  Court— Hotice  to 
/segment  Debtor.  ] — When  a  judgment  summons 
for  a  committal  comes  before  the  judge  of  a 
comity  court,  not  having  jurisdiction  in  bank- 
ruptcy, and  he,  being  of  opinion  that  a  receiving 
older  should  be  made  in  lieu  of  a  committal, 
■nkes  an  order  transferring  the  matter  to  the 
Bankruptcy  Court,  notice  of  the  subsequent  pro- 
ceedings under  the  order  of  transfer  must  be 
served  on  the  judgment  debtor.  In  such  a  case 
the  Court  of  Bankruptcy  is  not  bound  to  act  on 
the  opinion  of  the  county  court  judge,  and  to 
make  a  receiving  order  as  of  course,  but  mast 
exercise  its  judicial  discretion  on  hearing  the 
ease  on  its  merits.  Andrews,  Ex  parte,  Andrews, 
It  re,  15  Q.  B.  D.  335 ;  54  L.  J.,  Q.  B.  572 ;  2 
M.  B.  R.  244— Cave,  J. 

iseervins;  Order,  Effect  of— Order  for  Payment 
sf  Honey.] — An  order  was  made  upon  W.  to  pay 
a  sum  of  money,  due  from  him,  as  solicitor,  to 
the  trustee  of  a  will.  W.  made  default  in  pay- 
ment of  the  money ;  and,  on  the  25th  April, 
1887,  a  receiving  order  was  made  against  him 
apon  a  creditors  petition.  Two  days  afterwards, 
W.  was  served  with  a  notice  of  motion  (dated 
the  22nd  of  April)  for  leave  to  issue  an  attach- 
ment against  him  for  non-compliance  with  the 
order:— Held,  that,  as  the  attachment  applied 
for  was  not  mere  civil  process,  but  process  of  a 
positive  or  disciplinary  nature,  the  existence  of 
the  receiving  order  was  no  bar  to  the  application. 
Bat  application  refused,  as,  looking  at  all  the 
oicunistance8,  no  benefit  was  likely  to  accrue  to 
the  applicant  from  making  the  order.  Wray,  In 
ft,  36  Ch.  D.  138  ;  56  L.  J.,  Ch.  1106  ;  57  L.  T. 
«K ;  36  W.  R.  67— C.  A. 

b.  Staying*  Proceedings. 

Pending  Appeal — Discretion.] — A  judgment 
debtor,  after  having  been  served  with  a  bank- 

acy  notice,  gave  notice  of  appeal  from  the 
[menton  which  the  bankruptcy  notice  was 
founded :— Held,  that  it  was  a  matter  of  discre- 
tion of  the  registrar  whether  he  should  stay  the 
petition  pending  the  appeal.  Scotch  Whisftey 
Distillers,  Ex  parte,  Flateau,  In  re,  22  Q.  B.  D. 
© ;  57  W.  R.  42— C.  A. 

The  Court  of  Appeal  will  not  interfere  with 
the  exercise  of  discretion  by  the  registrar,  under 
sab*  4  of  s.  7  of  the  Bankruptcy  Act,  1883,  in 
adjourning  the  hearing  of,  or  dismissing,  a 
bankruptcy  petition  founded  on  non-compliance 
sith  a  bankruptcy  notice  in  respect  of  a  judg- 
ment debt,  when  an  appeal  is  pending  from  the 
lodgment,  unless  it  is  clear  that  the  registrar 


Two  Petitions.]— On  19th  Feb.,  1885,  a 

petition  was  presented  in  the  London  Bank- 
ruptcy Court,  but  the  hearing  of  the  petition  was 
adjourned  from  time  to  time  with  the  consent  of 
the  petitioning  creditor.  On  5th  Jan.,  1886,  a 
receiving  order  was  made  on  this  petition  in  the 
High  Court  at  11.30  o'clock,  and  on  the  same 
day  at  1  o'clock  a  receiving  order  was  also  made 
against  the  debtor  in  the  Swansea  County  Court 
at  the  instance  of  another  creditor.  On  an  ap- 
peal by  the  creditor  presenting  the  petition  in 
London  to  set  aside  such  order  of  the  county 
court :— Held,  that  from  the  evidence  it  was 
clear  that  the  legitimate  business  of  the  debtor 
was  carried  on  at  Swansea,  which  was  primft 
facie  the  place  where  his  business  transactions 
ought  to  be  investigated,  and  that  the  petition- 
ing creditor  in  London,  having  for  his  own  pur- 
Eose  delayed  for  several  months  to  proceed  with 
is  petition,  the  proper  course  was  not  to  inter- 
fere with  the  order  of  the  county  court,  and 
that  an  application  should  be  made  to  the 
London  Court  to  stay  the  proceedings  in  London. 
Martin,  Ex  parte,  St  rick,  In  re,  3  M.  B.  R. 
78— D. 

o.  Application  to  Rescind  Order. 

Payment  of  Creditors  in  full— Jurisdiction.] — 
A  debtor  presented  a  bankruptcy  petition  and 
a  receiving  order  was  made.  The  debtor's  father, 
who  was  a  partly  secured  creditor,  immediately 
afterwards  paid  all  the  unsecured  creditors  in 
full.  The  only  other  creditor  was  fully  secured. 
The  debtor  then  applied  to  the  court  to  rescind 
the  receiving  order  and  to  allow  him  to  withdraw 
his  petition.  The  application  was  assented  to  by 
the  fully  secured  creditor  and  by  the  father.  The 
judge  held  that  he  had  no  jurisdiction  to  rescind 
the  order,  but  he  made  an  order  staying  all 
further  proceedings  under  the  order  : — Held,  that 
there  was  jurisdiction  to  grant  the  application. 
Wemyss,  Ex  parte,  Wemyss,  In  re,  13  Q.  B.  D. 


115 


BANKRUPTCY— Notice,  Petition  and  Receiving  Order.         116 


244  ;  63  L.  J.,  Q.  B.  496  ;  32  W.  R  1002  ;  1  M. 
B.  B.  167— D. 

Consent  of  Creditor! — Proof.] — The  registrar, 
before  rescinding  the  appointment  of  a  receiver, 
or  granting  a  stay  of  proceedings,  is  not  bound 
to  be  satisfied  that  the  consent  of  all  the 
creditors  has  been  obtained ;  but  he  must  ex- 
ercise his  discretion  as  to  the  sufficiency  of  the 
consent  obtained  in  each  case.  Pending  such 
rescission  or  stay  of  proceedings  the  debtor 
should  not,  even  with  the  consent  of  all  the  peti- 
tioning creditors,  be  left  in  unfettered  control  of 
the  estate  ;  but  a  stay  of  the  advertisement  by 
the  receiver  may  properly  be  granted.  Carr, 
Est  parte,  Carr,  In  re,  36  W.  R.  160— C.  A. 


Substitution  of  Scheme.] — After  a  re- 


ceiving order  had  been  made  against  the  debtor 
on  his  own  petition,  a  scheme  was  put  forward 
by  him  which  the  creditors  were  willing  to 
accept,  and  the  debtor  thereupon,  with  the 
Assent  of  the  creditors,  applied  to  the  county 
court  to  rescind  the  receiving  order  : — Held, 
that  the  registrar  was  right  in  refusing  to 
rescind  the  receiving  order  under  the  circum- 
stances, and  that  if  the  debtor  was  desirous  of 
substituting  a  scheme,  he  must  proceed  in  the 
manner  provided  by  s.  18  of  the  Bankruptcy 
Act,  1883.  Dixon,  Ex  parte,  Dixon,  In  re,  37 
W.  R.  161  ;  5  M.  B.  R.  291— C.  A.  Affirming 
*9  L.  T.  776— D. 


Judgment  Debt  paid.]— On  30th  Dec., 


1886,  judgment  for  332.  was  recovered  against 
the  debtor,  and  in  January,  1887,  a  judgment 
summons  was  issued;  on  11th  Feb.  1887,  a 
receiving  order  in  lieu  of  a  committal,  was 
made  against  the  debtor  under  s.  103,  sub-s. 
5,  of  the  Bankruptcy  Act,  1883.  The  debtor 
thereupon  paid  the  debt  and  the  judgment 
creditor  consented  to  the  receiving  order  being 
rescinded,  but  on  application  being  made  for 
that  purpose,  the  county  court  judge  held  that 
the  debtor  had  not  shown  that  the  consent  of 
the  creditors  to  such  rescission  had  been  obtained 
and  he  declined  to  make  any  order : — Held,  that 
the  debtor  was  entitled  to  have  the  matter 
referred  to  the  registrar  to  report  whether  a 
majority  of  the  creditors  did  assent  or  not. 
Whether  where  a  receiving  order  in  lieu  of  a 
committal  is  made  under  s.  103,  sub-s.  6,  of  the 
Bankruptcy  Act,  1883,  it  is  necessary  that  the 
consent  of  the  creditors  should  be  shown,  if  the 
debtor  pays  the  judgment  creditor  and  applies 
to  rescind,  quaere.  Hughes,  Ex  parte,  Hughes, 
In  re,  4  M.  B.  R.  236— D. 

To  what  Court  made.]— A  receiving  order 
having  been  made  in  the  oounty  court  against 
a  debtor,  a  compromise  was  subsequently  agreed 
upon  between  the  petitioning  creditor  and  the 
debtor,  and  an  application  was  made  by  the 
debtor  with  the  consent  of  the  petitioning 
creditor  to  the  Divisional  Court  in  Bankruptcy, 
to  rescind  the  receiving  order  on  the  terms  of 
such  compromise  : — Held,  that  the  court  had  no 
jurisdiction  to  entertain  such  an  application. 
Skurly,  Ex  parte,  Shurly,  In  re,  5  M.  B.  B.  168 
— D. 

Transfer  of  Proceedings.]— On  the  hear- 
ing of  a  judgment  summons  in  the  county  court, 
a  receiving  order  was  made  against  the  debtor 


under  s.  103,  sub-s.  6,  of  the  Bankruptcy  Act,  | 
1883,  and  the  proceedings  were  thereupon  trans- 
ferred under  Rule  360  (1)  of  the  Bankruptcy 
Rules,  1886,  to  the  London  Bankruptcy  Gout, 
as  being  the  court  to  which  a  bankruptcy  peti- 
tion against  the  debtor  would  properly  he  pre- 
sented. The  debtor  paid  the  debt  and  appealed 
to  the  Divisional  Court  in  Bankruptcy  to  rescind 
the  receiving  order : — Held,  that  the  proper 
course  for  the  debtor  to  pursue  was  to  apply 
to  the  county  court  judge  for  a  rehearing. 
Hughes,  Ex  parte,  Huglies,  In  re,  4  M.  B.  £. 
73— D. 

Official  Receiver— Appearance  at  Hearing.]— 

A  receiving  order  having  been  made  against  a 
debtor  upon  his  own  petition,  his  public  ex- 
amination was  adjourned ;  and  ultimately,  the 
creditors  accepted  a  scheme  of  arrangement 
under  which  they  -received  less  than  the  full 
amount  of  their  debts.  In  an  application  to 
have  the  receiving  order  discharged,  made  by 
the  debtor  with  the  concurrence  of  all  the 
creditors,  the  official  receiver  appeared  and  ob- 
jected to  the  discharge  of  the  order  until  after 
the  public  examination  had  been  held,  on  the 
ground  that  he  was  not  satisfied  with  the 
debtor's  conduct: — Held,  that  the  official  re- 
ceiver was  entitled,  under  the  Bankruptcy  Act, 
1883,  to  appear  in  the  application  and  oppose 
the  discharge  of  the  receiving  order;  and  that 
the  county  court  judge  had  a  discretion  to  refuse 
the  discharge.  Leslie,  Ex  parte,  Leslie,  In  re, 
18  Q.  B.  D.  619  ;  56  L.  T.  569  ;  35  W.  R.  395 ;  i 
M.  B.  R.  75— D. 


Hotice  to,  of  Application.] — Where  after 


a  receiving  order  has  been  made  against  a 
debtor  on  a  bankruptcy  notice,  the  petitioning 
creditor  is  settled  with,  and  with  his  assent  the 
debtor  appeals  for  the  purpose  of  having  the 
receiving  order  set  aside,  it  would  appear  that 
notice  should  be  given  to  the  official  receiver, 
and  where  this  was  not  done,  the  court  dis- 
charged the  receiving  order  as  prayed,  bat 
directed  that  the  order  should  not  be  drawn  up 
for  four  days  and  notice  given  to  the  official 
receiver  so  as  to  enable  him  to  come  forward  if 
he  thought  fit.  Fletcher,  Ex  parte,  Fletcher, 
In  re,  4  M.  B.  R.  113— D. 

Appeal  — Delay  in  Proceedings.] — After  a 
bankruptcy  petition  had  been  presented,  but 
before  the  day  appointed  for  the  hearing,  the 
debtor  obtained  the  consent  of  the  petitioning 
creditor  to  an  adjournment  with  a  view  to  a 
settlement,  and  a  form  of  consent  to  an  exten- 
sion of  time  was  sent  to  the  County  Court 
Registrar  by  post,  but  on  the  day  appointed  for 
the  hearing  the  Registrar  dismissed  the  petition 
for  non-appearance.  Notice  of  appeal  having 
been  given  by  the  creditor  the  debtor  filed  his 
own  petition,  on  which  a  receiving  order  was 
made.  When  the  appeal  came  on  for  hearing 
an  adjournment  was  taken  by  consent,  in  order 
that  a  scheme  of  arrangement  proposed  by  the 
debtor  might  be  considered,  but  this  subsequently 
fell  through,  and  the  petitioning  creditor  now 
proceeded  with  the  appeal  a  year  after  the 
notice  thereof  had  been  given  : — Held,  that  the 
delay  which  had  occurred  was  fatal  to  the 
appeal,  and  that  no  sufficient  reason  having 
been  adduced  to  justify  the  court  in  hearing  it, 
notwithstanding  such  delay,  the  appeal  most  be 


117 


BANKRUPTCY— Adjudication. 


118 


dwmwwri.     Ward,  Ex  parte,  Gamlen,  In  re,  4 
M.  B.  R.  301— D. 

VII.    ADJUDICATION. 

Jurisdiction — Act  of  Bankruptcy  committed 
Mm  commencement  of  Bankruptcy  Act,  1883.] 
—A  debtor  filed  a  liquidation  petition  in 
December,  1883,  and  a  receiver  of  his  property 
vat  appointed.  On  the  15th  of  January,  1884, 
the  adjourned  first  meeting  of  the  creditors  was 
held,  when  the  creditors  separated  without  pass- 
ing any  resolutions,  and  without  again  adjourn- 
ing the  meeting.  On  the  21st  of  January  one  of 
the  creditors  presented  a  bankruptcy  petition 
against  the  debtor  under  the  Act  of  1869.  alleging 
the  filing  of  the  liquidation  petition  as  an  act  of 
bankruptcy.  On  the  1st  of  February,  the  regis- 
trar adjudicated  the  debtor  bankrupt  on  the 
petition.  The  debtor  was  present,  and  raised  no 
objection  to  the  jurisdiction  of  the  court  to  make 
the  order.  The  receiver  had  not  been  discharged. 
On  the  14th  of  March  (Pratt,  Ex  parte,  12  Q.  B. 
D.  334,  having  meanwhile  been  decided),  the 
debtor  applied  to  the  registrar  for  a  rehearing 
of  the  petition,  and  a  reversal  of  the  order  of 
adjudication,  on  the  ground  that  there  was  no 
jurisdiction  to  make  it.  The  registrar  refused 
the  application  : — Held,  that  the  court  had  no 
jurisdiction  to  make  the  adjudication  under  the 
Act  of  1869  on  the  ground  that  an  act  of  bank- 
ruptcy had  been  committed,  but  that  it  would 
have  had  jurisdiction  to  make  it  under  the  power 
given  by  sub-s.  12  of  s.  125  of  that  act  Held, 
therefore,  that,  as  the  objection  had  not  been 
raised  before  the  registrar,  a  rehearing  ought 
not  to  be  allowed.  May,  Ebb  parte,  May,  In  re, 
12  Q.  B.  D.  497  ;  53  L.  J.,  Q.  B.  571 ;  50  L.  T. 
744  ;  32  W.  R.  839  ;1M.B.  R.  60— C.  A. 

Application  for,  after  Abortive  Liquidation 
Petition— Payment    of  Applicant's  Debt]— A 
debtor  filed  a  liquidation  petition  in  August, 
1879.    A  receiver  of  his  property  was  at  once 
appointed,  and  injunctions    were   granted   to 
restrain  some  of  the  creditors  from  proceeding 
against  him  for  their  debts.    The  first  meeting 
of  the  creditors  was  held  on  the  20th  of  October, 
1879,  when  it  was  resolved  to  adjourn  to  the  15th 
of  December,    1879.      Similar  resolutions   for 
adjournment  were  passed  again  and  again,  the 
netting  being  ultimately,  on  the  15th  of  Novem- 
ber, 1882,  adjourned  to  the  28th  of  March,  1883. 
No  reaolutions  for  liquidation  by  arrangement  or 
composition  were  passed.    In  January,  1883,  two 
of  the  creditors  applied  to  the  Court  of  Bank- 
ruptcy by  motion,  under  sub-s.  12  of  s.  125  of 
the  Bankruptcy  Act,  1869,  for  an  adjudication  of 
bankruptcy  against  the  debtor.  At  the  adjourned 
meeting  on  the  28th  of  March,  1883,  the  credi- 
tots  resolved  that  it  was  inexpedient  in  the 
interests  of  the  creditors  that  any  further  pro- 
ceeding should  be  taken  under  the  petition,  and 
that  application  should  be  made  to  the  court  to 
discharge  the  receiver,  and  dismiss  the  petition, 
or  stay  all  further  proceedings  under  it.    The 
registrar,  on  the  3rd  of  May,  made  an  adjudica- 
tion.   The  debtor  appealed,  and  on  the  hearing 
ot  the  appeal  an  offer  was  made  by  a  friend  of 
&  to  pay  the  debts  of  the  two  creditors  in  full 
■ad  to  provide  for  their  costs  of  the  application, 
tte  payment  to  be  made  by  the  friend  out  of  his 
own  moneys,  and  an  undertaking  being  given  by 
fa  Uiat  neither  directly  nor  indirectly  should  the 


payment  be  made  out  of  the  debtor's  assets  : — 
Held,  that,  notwithstanding  the  resolution  of 
the  28th  of  March,  and  having  regard  to  the 
fact  that  the  receiver  had  not  been  discharged, 
the  liquidation  proceedings  were  still  pending, 
and  that  if  the  adjudication  order  was  discharged, 
no  other  creditor  would  be  injured,  for  that  the 
court  would  have  jurisdiction  to  adjudicate  the 
debtor  a  bankrupt  on  the  application  of  any  other 
creditor.  The  adjudication  was  accordingly  dis- 
charged on  the  terms  of  payment  proposed,  and 
on  the  undertaking  of  the  debtor  to  apply  to  the 
Court  of  Bankruptcy  for  leave  to  summon  a  fresh 
first  meeting  of  the  creditors.  M'Henry,  Ex 
parte,  M'llenry*  In  re,  24  Ch.  D.  35  ;  63  L.  J., 
Ch.  27  ;  48  L.  T.  921  ;  31  W.  R.  873— C.  A. 

Held,  by  Baggallay  and  Cotton,  L.JJ.,  and 
semble,  per  Bowen,  L.J.,  that  the  court  had 
jurisdiction  to  order  a  fresh  first  meeting  of  the 
creditors  under  the  petition.    lb. 

Annulling  of  Adjudication — Jurisdiction.] — 

The  discharge  of  a  bankrupt  having  been  granted 
on  payment  of  a  dividend  of  Is.  6d.  in  the  pound 
to  the  creditors,  the  county  court  judge,  on 
application  made  to  him,  subsequently  annulled 
the  bankruptcy  : — Held,  that  there  was  no  power 
to  annul  a  bankruptcy  outside  the  provisions  of 
the  Bankruptcy  Act,  and  that  in  any  event",  the 
county  court  judge  was  wrong  in  making  the 
order  under  the  circumstances  of  the  present 
case.  Board  of  Trade,  Ex  parte,  Qyll,  In  re, 
58  L.  J.,  Q.  B.  8  ;  69  L.  T.  778  ;  37  W.  R.  164  ; 
5  M.  B.  R.  272— D. 


Limit  of  Time.]— In  a  proper  case  an 


adjudication  of  bankruptcy  may  be  annulled 
upon  an  application  made  after  the  expiration  of 
the  time  limited  for  appealing  from  it.  Sect. 
10  of  the  Bankruptcy  Act,  1869,  has  no  applica- 
tion to  an  appeal  from  an  adjudication,  or  to  an 
application  to  annul  it  Brown,  Ex  parte  (9 
L.  R.,  Ch.  304),  explained  ;  Johnson,  Ex  parte 
(1 2  Ch.  D.  905),  distinguished.  Oeisel,  Ex  parte, 
Stanger,  In  re,  22  Ch.  D.  436  ;  53  L.  J.,  Ch.  349  ; 
48  L.  T.  405  ;  81  W.  R.  264— C.  A. 

Costs.] — An    order   was    made  by  the 

Court  of  Appeal  to  annul  an  adjudication  of 
bankruptcy,  on  the  ground  that  the  debtor  must 
be  presumed  to  have  been  dead  when  it  was 
made.  Probate  had  been  granted  of  a  will  executed 
by  the  debtor  : — Held,  that  the  costs  and  charges 
of  the  trustee  properly  incurred,  and  the  costs 
of  all  parties  of  the  application  to  annul  and  of 
the  appeal,  must  be  paid  out  of  the  estate,  and 
that  the  executors  must  confirm  all  acts  properly 
done  by  the  trustee  in  the  bankruptcy.    lb. 

VIII.     PROPERTY. 

1.  What  passes  to  Trustee. 

a.  Leaseholds — Disclaimer. 

b.  Order  and  Disposition. 

e.  Property  appropriated  to  meet  Bills  of 
Exchange. 

d.  Property  held  by  Bankrupt  as  Trustee. 

e.  Salary  and  Income. 

/.   Materials  being  used  by  Bankrupt  in 
Execution  of  Contract. 
Of  Married  Women. 
In  other  Cases. 

2.  Proceedings  for  Discovery  and  Protection  of 

Property. 


£ 


119 


BANKRUPTCY— Property. 


120 


1.  WHAT  PASSES  TO  TRUSTEB. 
a.  Leaseholds— Disclaimer. 

Agreement  for  a  Lease.]— The  right  of  dis- 
claimer conferred  on  trustees  by  s.  55  of  the 
Bankruptcy  Act,  1883,  is  not  limited  to  property 
of  the  bankrupt  divisible  amongst  his  creditors 
as  defined  by  s.  44,  but  extends  to  any  property 
as  defined  by  s.  168,  from  which  no  benefit  can 
accrue  to  the  bankrupt's  estate.  A  debtor  held 
his  business  premises  for  a  term  of  years  under 
an  agreement  for  a  lease,  and  entered  into  a 
binding  contract  for  the  sale  and  assignment  of 
his  business  and  his  business  premises  to  a  com- 
pany, but  became  bankrupt  before  the  completion 
of  the  contract  : — Held,  that  the  debtor's  in- 
terest in  the  agreement  for  a  lease  was  in  the 
nature  of  land  burdened  with  onerous  covenants 
which  his  trustee  in  bankruptcy  could  under 
the  circumstances  disclaim.  Monkhovse,  Ex 
parte,  Mavghan,  In  re,  14  Q.  B.  D.  956  ;  54 
L.  J.,  Q.  B.  128  ;  33  W.  R.  308 ;  2  M.  B.  R.  25— 
Field,  J. 

Disclaimer  binding  on  Crown.]  —  The  pro- 
visions of  s.  55  of  the  Bankruptcy  Act,  1883,  as 
to  the  disclaimer  of  onerous  property,  are  "  pro- 
visions relating  to  the  remedies  against  the 
property  of  a  debtor"  within  the  meaning  of 
s.  150  of  that  Act,  and  are  therefore  binding 
upon  the  Crown.  Commissioners  of  Woods  and 
Forests,  Ex  parte,  Thomas,  In  re,  or  Thomas, 
Em  parte,  Trotter,  In  re,  21  Q.  B.  D.  380 ;  57 
L.  JT,  Q.  B.  574 ;  59  L.  T.  447 ;  36  W.  R.  375  ;  5 
M.  B.  R.  209— D. 

Application  for  leave  to  Disclaim— Extension 
of  Time.] — Although  the  three  months  given  to  a 
trustee  by  s.  55,  sub-s.  1,  within  which  to  disclaim 
onerous  property,  may  have  expired,  the  court  has 
power  under  s.  105,  sub-s.  4,  to  grant  the  trustee 
an  extension  of  time.  When  a  trustee  applies  for 
an  extension  of  time,  he  should  give  some  good 
reason  for  the  indulgence  he  asks,  and  if  the 
rights  of  other  parties  will  be  prejudiced  by  the 
time  being  extended,  the  court  will,  as  a  general 
rule,  put  the  trustee  upon  terms.  Foreman,  Ex 
parte,  Price,  In  re,  13  Q.  B.  D.  466 ;  33  W.  R. 
139  ;  1  M.  B.  R.  153— Cave,  J. 

8ervioe  of  Hotioe  out  of  the  Jurisdiction.] 

— Notice  of  motion  by  the  trustee  for  leave  to 
disclaim  may  be  served  out  of  the  jurisdiction 
upon  persons  whose  interests  may  be  affected. 
Paterson,  Ex  parte,  Rathbone,  In  re,  56  L.  J., 
Q.  B.  604  ;  57  L.  T.  420 ;  35  W.  R.  735  ;  4  M.  B. 
R.  270— Cave,  J. 

Joinder  of  Respondents.] —A   trustee 

when  applying  to  the  court  under  the  Bank- 
ruptcy Act,  1883,  s.  55,  sub-s.  3,  for  leave  to 
disclaim  property  may  include  in  one  application 
several  distinct  premises  so  long  as  there  is  one 
landlord  or  chief  respondent  who  is  affected  by 
the  whole  application,  although  there  may  be 
other  respondents  who  are  only  affected  by  part 
of  it.  Trustee,  Ex  parte,  W hi taker,  In  re,  21  Q. 
B.  D.  261  ;57  L.  J.,  Q.  B.  527  ;  69  L.  T.  255  ;  36 
W.  B.  736  ;  5  M.  B.  R.  178— Cave,  J. 

Terms  on  which  Leave  granted.]— In  deter- 
mining whether,  on  giving  leave  to  the  trustee 
in  a  bankruptcy  to  disclaim  a  lease  of  the  bank- 


rupt, the  trustee  should  be  ordered  to  pay  com- 
pensation to  the  landlord  in  respect  of  his  occu- 
pation of  the  leasehold  premises,  the  court  will 
have  regard  not  merely  to  the  question  whether 
the  occupation  has  actually  produced  a  profit  to 
the  bankrupt's  estate,  but  also  to  the  question 
whether  the  possession  was  retained  by  the 
trustee  with  a  view  to  obtaining  such  a  profit 
Arnal,  Ex  parte,  Whitton,  In  re,  24  Ch.  D.  26; 
53  L.  J.,  Ch.  184  ;  49  L.  T.  221— C.  A. 

The  rule  as  laid  down  by  Cotton,  L.  J.,  in 
Isherwood,  Ex  parte  (22  Ch.  D.  384),  adopted 
in  preference  to  that  expressed  by  Jessel,  M.  B., 
in  Izard,  Ex  parte  (23  Ch.  D.  116).    lb. 

The  court  ordered  compensation  to  be  paid  by 
the  trustee  in  a  bankruptcy  as  a  condition  of 
giving  him  leave  to  disclaim  the  lease  of  the 
bankrupt's  place  of  business,  although  daring 
part  of  the  time  during  which  the  trustee  bad 
been  in  occupation  a  bailiff  had  been  in  pos- 
8e8sion  of  the  bankrupt's  goods  under  a  distress 
for  rent,  and  the  landlord  had  been  allowed  to 
place  bills  on  the  premises  stating  that  they  were 
to  be  let,  and  that  application  for  that  purpose 
was  to  be  made  to  him.    lb. 

Where  a  trustee  in  bankruptcy  seeks  to  dis- 
claim, the  landlord  is  entitled  to  be  paid  if  any 
advantage  has  accrued  to  the  creditors  from  the 
use  of  the  landlord's  property  subsequent  to  the 
adjudication.  Brooke,  In  re,  1  M.  B.  R.  82— 
Cave,  J. 

Where  an  application  for  leave  to  disclaim  is 
made  by  a  trustee  in  bankruptcy,  a  demand  of 
the  landlord  for  rent  in  respect  of  the  premises 
sought  to  be  disclaimed,  will  not  be  entertained 
by  the  court  unless  the  landlord  has  been  kept 
out  of  the  property  for  the  benefit  of  the  cre- 
ditors, and  the  creditors  have  obtained  some 
advantage  therefrom.  Zappert,In  re,  1M.B.K 
72— Cave,  J. 

A  lease  was  granted  to  T.  and  8.,  co-partners. 
Upon  dissolution  of  the  partnership  T.  cove- 
nanted to  hold  his  share  of  the  lease  upon  trust 
for  S.,  who  continued  the  business.  S.  after- 
wards went  into  liquidation,  and  the  trustee  in 
liquidation  remained  in  possession  of  the  lease- 
hold premises.  During  the  occupation  of  the 
trustee,  T.  was  obliged  to  pay  rent  to  the  land- 
lord. Upon  an  application  by  the  trustee  for 
leave  to  disclaim  the  lease : — Held,  that  leave  to 
disclaim  ought  only  to  be  given  upon  condition 
of  the  trustee  repaying  to  T.  the  rent  paid 
during  the  trustee's  occupation.  Good,  Ex 
parte,  Salkeld,  In  re,  13  Q.  B.  D.  781  ;  64  L.  J., 
Q.  B.  96  ;  51  L.  T.  876  ;  33  W.  R.  22— C.  A. 

Where  a  trustee  seeks  to  disclaim  a  lease  under 
s.  55  of  the  Bankruptcy  Act,  1883,  the  court 
may,  under  sub-s.  3,  permit  him  to  remove  the 
fixtures.  Painter,  Ex  parte,  Moser,  In  re,  13 
Q.  B.  D.  738 ;  33  W.  R.  16 ;  1  M.  B.  R.  244— 
Wills,  J. 


Conduct  of  Trustee — Delay.]  —  On  4th 


August,  1886,  the  agent  on  behalf  of  a  banking 
company  took  possession  of  a  quarry  under  a 
sub-lease  previously  granted  by  the  debtor,  the 
original  lessee,  as  security  for  a  loan.  On  11th 
August,  the  debtor  was  adjudged  bankrupt,  and 
such  agent  was  appointed  trustee  in  the  bank- 
ruptcy, but  he  nevertheless  continued  in  pos- 
session of  the  said  quarry  on  the  part  of  the 
bank,  which  was  worked  for  the  bank's  benefit 
On  6th  Nov.  the  agent,  as  trustee  in  the  bank- 
ruptcy, applied   to  the  county  court   for  un- 


131 


BANKRUPTCY— Property. 


122 


conStioBal  leave  to  disclaim  the  lease ;    this 
application  was  opposed  by  the  landlord  and 
nfned  by  the  judge  without  prejudice  to  the 
trustee's  applying  for  leave  to  disclaim  upon 
terms :— Held,  that  the  county  court  judge  was 
ijglit  in  refusing  unconditional  leave  to  dis- 
eUim ;  that  the  trustee  had  taken  upon  himself 
two  ineconcileable  duties,  and  that  haying  re- 
gard to  his  conduct  and  to  the  fact  that  no 
eride&oe  was  before  the  county  court  judge  to 
enable  him  to  come  to  a  proper  conclusion  as  to 
terms,  the  order  made  by  him  was  right.    Duff, 
Ex  parte,  Crewtker,  In  re,  4  M.  B.  B.  100— D. 

—  Whether  Discretion  the  subject  of  Ap- 
)ML]— The  imposing  of  conditions  on  the  trus- 
tee is  a  matter  of  judicial  discretion,  and  the 
Court  of  Appeal  will  not  readily  interfere  with 
the  exercise  of  discretion  by  the  judge  of  first 
instance.  Anal,  Ex  parte,  Witt  on,  In  re,  24 
Ch.  D.  26 ;  63  L.  J.,  Ch.  134  ;  49  L.  T.  221— 
CI 

Jirisdietum — Small  Bankruptcy— Landlord's 
Caimtasetion.] — Where  an  order  is  made  under 
1 121  of  the  Bankruptcy  Act,  1883.  for  the  sum- 
aary  administration  of  a  bankrupt's  estate,  and 
the  trustee,  in  pursuance  of  the  power  conferred 
«  him  by  r.  232  of  the  Bankruptcy  Rules,  1883, 
dJarlsims,  without  any  application  to  the  court, 
the  leasehold  premises  of  the  bankrupt,  the 
emit  has  no  jurisdiction  to  give  any  compensa- 
tion to  the  landlord  oat  of  the  bankrupt's  estate 
far  the  use  and  occupation  by  the  trustee  of  the 
knehold  premises  for  the  purposes  of  the  bank- 
ruptcy, even  although  a  benefit  has  thereby  re- 
SBlted  to  the  estate.  Zerfaes,  Ex  parte,  Sand- 
wtU,  In  re,  14  Q.  B.  D.  960  ;  64  L.  J.,  Q.  B.  323; 
St  L  T.  692 ;  33  W.  B.  522 ;  2M.B.R.  95— 
Owe,  J. 

Isrtgage  by  Sub-demise — Vesting  Order— 
Irriitien  Application  by  Lessor.]— A  lessee 
mortgaged  the  leasehold  property  by  sub- 
eauae,  and  was  subsequently  adjudicated  a 
Bmkrapt.  The  trustee  obtained  leave  to  dis- 
dtim,  and  thereupon  the  lessor  applied  for  and 
obtained  an  order,  under  s.  55,  sub-s.  6,  of  the 
Bankruptcy  Act,  1883,  that  the  mortgagee 
should  be  excluded  from  all  interest  in  and 
•eearity  upon  the  property,  unless  within  seven 
fcyt  he  elected  to  accept  an  order  vesting  in 
him  the  disclaimed  property,  subject  to  the 
ane  liabilities  and  obligations  as  the  bankrupt 
vai  subject  to  under  the  lease  : — Held,  that  the 
osfer  excluding  the  mortgagee's  interest,  unless 
he  accepted  the  terms  proposed,  could  be  made 
«poo  the  application  of  the  lessor.  ShUson,  Ex 
fit,  Oct,  In  re,  20  Q.  B.  D.  343 ;  57  L.  J., 
Q.  &  169 ;  58  L.  T.  586  ;  36  W.  R.  187  ;  5  M.  B. 
«M4-D. 

If  the  mortgagee  refused  to  accept  a  vesting 
ate  on  the  terms  offered  by  the  order  of  the 
owrt,  H  was  competent  for  the  court  to  order 
**ftt  the  property  be  vested  in  or  delivered  to 
tie  lessor.  Turquand,  Ex  parte  (14  Q.  B.  D. 
405).  discussed.    lb. 

where  a  trustee  in  bankruptcy  disclaims  lease- 
hold property  of  the  bankrupt  which  the  bank- 
rupt has  mortgaged  by  sab-demise,  the  court  has 
power  anders.  55  of  the  Bankruptcy  Act,  1883, 
ft —he  an  order  on  the  application  of  the  original 
fasor,  ficlnrlmg  the  sub-lessee  from  all  interest 

**  **d  security  upon  the  property  unless  he  elects 


to  take  a  vesting  order  vesting  the  property  in 
him  subject  to  the  same  liabilities  and  obliga- 
tions as  the  bankrupt  was  subject  to  under  the 
lease  in  respect  of  such  property  at  the  date  of 
the  filing  of  the  bankruptcy  petition.  Shilgon, 
Ex  parte  (20  Q.  B.  D.  343),  followed.  Cloth- 
workers'  Company,  Ex  parte,  or  Hanbury,  Ex 
parte,  Finley,  In  re,  21  Q.  B.  D.  475  ;  67  L.  J., 
Q.  B.  626  ;  60  L.  T.  134  ;  37  W.R.  6  ;  5  M.  B.R. 
248— C.  A. 

On  a  disclaimer  of  leaseholds  by  a  trustee  in 
bankruptcy  under  sub-s.  6,  s.  55,  of  the  Bank- 
ruptcy Act,  1883,  the  landlord  has  not  such  an 
interest  in  the  "  disclaimed  property  "  as  to  be 
entitled  to  a  vesting  order  under  the  sub-section. 
— The  right  to  a  vesting  order  is  only  conferred 
on  a  person  claiming  an  interest  in  the  property 
through  or  under  the  bankrupt. — Where  in  such 
a  case  a  mortgagee  does  not  appear  on  the  trus- 
tee's application  to  disclaim,  the  proper  coune 
is  to  order  that  the  mortgagee  be  excluded  from 
all  interest  in  and  security  upon  the  property 
unless  he  shall  by  a  short  date  declare  his  option 
to  take  a  vesting  order  in  the  terms  of  the  sub- 
section. Turquand,  Ex  parte,  Parkers,  In  re 
(1),  14  Q.  B.  D.  405 ;  51  L.  T.  667 ;  33  W.  R. 
762  ;1M.B.  B.  276— Cave,  J. 

Liability  of  Trustee— Relation  hack  to  Adjudi- 
cation.]— WM  who  occupied  premises  as  a  yearly 
tenant,  was  adjudicated  bankrupt  on  the  7th  of 
September,  1883.  The  defendant,  as  trustee, 
entered  into  possession  of  the  premises  and  held 
them  until  the  29th  of  January,  1884  (when  he 
tendered  the  keys  to  the  plaintiff,  the  landlord), 
for  the  purpose  of  winding  up  the  bankrupt's 
business  and  realizing  his  assets  for  the  benefit 
of  the  estate, — paying  rent  down  to  the  25th  of 
December,  1883.  On  the  26th  of  February,  1884, 
the  trustee  with  the  leave  of  the  court,  and  after 
notice  to  the  landlord,  disclaimed  all  interest  in 
the  term  : — Held,  that  the  disclaimer  relating 
back  by  force  of  s.  23  of  the  Bankruptcy  Act, 
1869,  to  the  date  of  the  adjudication,  the  trustee 
was  not  liable  to  an  action  in  respect  of  his  sub- 
sequent occupation  of  the  premises  (either  as 
assignee  or  as  a  trespasser),  the  landlord's  only 
remedy  being  by  application  to  the  Court  of 
Bankruptcy  under  r.  8  of  the  Bankruptcy  Rules, 
1871.  Oabrielv.  Blankenstein,  13  Q.  B.  D.  684  ; 
33  W.  R.  161— D. 

Covenant  not  to  sell  Eay,  Straw,  Ac.]— 

The  enactment  in  statute  56  Geo.  3,  c.  50,  8.  11, 
that  the  assignee  of  any  bankrupt  shall  not  take 
or  use  any  hay,  straw,  &c,  on  any  farm  of  the 
bankrupt  in  any  other  way  than  the  bankrupt 
ought  to  have  done,  is  still  in  force,  and  applies 
to  a  trustee  in  bankruptcy  or  liquidation  under 
the  Bankruptcy  Act,  1869.  A  lessee  was  bound 
by  the  covenants  in  his  lease  not  to  sell  the  hay, 
straw,  &c,  grown  on  his  farm  without  the  consent 
of  the  landlord.  The  lessee  became  a  liquidating 
debtor  under  the  Bankruptcy  Act,  1869,  s.  125, 
and  the  trustee  in  the  liquidation  disclaimed  the 
lease : — Held,  that  the  trustee  was  bound  by  56 
Geo.  3,  c.  50,  s.  11,  notwithstanding  the  dis- 
claimer, and  an  injunction  was  granted  to 
restrain  him  from  selling  the  hay,  straw,  &<x, 
grown  on  the  farm.  Lybbe  v.  Hart,  29  Ch.  D.  8  ; 
64  L.  J.,  Ch.  860  ;  52  L.  T.  634— C.  A. 

A  tenant  of  a  farm,  restrained  by  agreement 
from  .selling  the  hay  and  straw  grown  on  the 
farm,  became  bankrupt.    The  trustee  in  bank- 


123 


BANKRUPTCY— Property. 


124 


ruptcy  removed  and  sold  a  quantity  of  the  hay 
in  breach  of  the  agreement  and  then  disclaimed 
the  lease.  The  landlord  sued  the  trustee  for  the 
removal  of  the  hay,  and  the  trustee  counter- 
claimed  for  unexhausted  improvements : — Held, 
that  the  trustee  was  personally  liable  for  his 
wrongful  act  in  selling  the  hay  ;  that  he  was  not 
protected  by  s.  55,  sub-s.  2,  of  the  Bankruptcy 
Act,  1883 ;  and  also,  that  the  counter-claim 
could  not  be  sustained,  as  by  the  Agricultural 
Holdings  Act,  1883,  s.  8,  arbitration  is  rendered 
compulsory  in  cases  of  dispute  between  landlord 
and  tenant.  Schofitld  v.  Hincks,  58  L.  J.,  Q.  B. 
147  ;  60  L.  T.  573  ;  37  W.  R.  157— D. 


Landlord's  Hotice — Trustee's  Heglect — 


Costs.] — When  a  landlord  gives  a  trustee  notice 
under  sub-s.  4  of  the  55th  section  of  the  Bank- 
ruptcy Act,  1883,  requiring  him  to  decide  whether 
he  will  disclaim  or  not  the  bankrupt's  leaseholds, 
and  the  trustee  declines  or  neglects  within  the 
twenty-eight  days  limited  by  the  sub-section  to 
give  notice  whether  he  disclaims  or  not,  and 
subsequently  applies  to  the  court  for  leave  to 
disclaim,  he  may  render  himself  personally  liable 
to  the  payment  of  rent  and  costs.  Mackay,  Ex 
parte,  Page,  In  re,  14  Q.  B.  D.  401  ;  33  W.  R. 
825  ;  1  M.  B.  R.  287— Cave,  J. 

Liability  of  Lessee— Disclaimer  by  Trustee  of 
Assignee  of  Lease.] — The  assignee  of  a  lease  for 
a  term  of  years  became  bankrupt,  and  his  trustee 
by  leave  of  the  court  disclaimed  under  s.  23  of 
the  Bankruptcy  Act,  1869  (32  &  33  Vict.  c.  71), 
all  the  bankrupt's  property  and  interest  in  the 
premises.  The  lessor  having  brought  an  action 
against  the  original  lessee  upon  his  covenant  to  pay 
rent  for  the  rent  accrued  due  since  the  appoint- 
ment of  the  trustee  : — Held  (Lord  Bramwell  dis- 
senting), that  notwithstanding  the  disclaimer 
the  lessee  remained  liable  upon  his  covenant. 
Mill  v.  East  and  West  India  Dock  Company,  9 
App.  Cas.  448  ;  53  L.  J.,  Ch.  842  ;  51  L.  T.  163  ; 
32  W.  R.  925  ;  48  J.  P.  788— H.  L.  (E.) 

Sight  to  Fixtures — Removal  on  Termination 
of  Lease.] — A  lease  of  a  mill  and  warehouse  for 
twenty-one  years  contained  a  covenant  by  the 
lessors  with  the  lessees  (inter  alia)  :  (4)  that 
certain  articles  mentioned  in  a  schedule  should 
be  the  property  of  the  lessees,  and  should  be 
removable  by  them,  they  making  good  all  damage 
done  by  such  removal.  The  articles  mentioned 
in  the  schedule  were  iron  columns,  beams,  floors, 
brick  piers,  and  things  ejusdem  generis.  There 
was  a  proviso  (2)  that  the  lessees  might  by  notice 
determine  the  term  at  the  end  of  seven  or  four- 
teen years,  (1)  that  on  the  tenant's  bankruptcy 
the  term  should  cease,  and  (3)  that  on  the  deter- 
mination or  cesser  of  the  term  all  the  machinery 
and  also  all  the  buildings  erected  by  the  lessees 
should  be  their  property,  and  should  be  removed 
by  them  previously  to  the  determination  or 
cesser  of  the  term  unless  it  should  then  be 
mutually  agreed  that  the  lessors  should  purchase 
them,  the  lessees  in  cases  of  removal  to  make 
good  all  damages  which  might  be  caused 
by  such  removal.  The  tenants  failed  and  the 
lease  determined: — Held,  that  the  official  receiver 
was  nevertheless  entitled  to  the  articles  men- 
tioned in  clause  (4)  of  this  covenant  and  clause 
(3)  of  the  proviso  as  being  the  property  of  the 
lessees.     Gould  or  Ooold,  Ex  parte,  Walker,  In 


re,  13  Q.  B.  D.  454  ;  51  L.  T.  368  ;1M.B.R 
168— D. 

b.  Order  and  Disposition. 

' '  Trade  or  Business  " — Sale  of  Surplus  Prodis* 
of  Farm.] — A  person  who  occupies  a  residential 
property  and  engages  in  farming  and  market 
gardening  for  his  pleasure,  and  carries  on  the 
same  at  a  profit,  is  not  carrying  on  a  "  trade  or 
business "  within  the  meaning  of  s.  44  of  the 
Bankruptcy  Act,  1883,  even  although  he  sells  his 
surplus  produce  after  supplying  his  household. 
But  if  the  primary  intention  is  abandoned,  and 
the  business  is  carried  on  with  a  view  to  profit  as 
a  means  of  livelihood,  he  will  come  within  the 
mischief  of  the  section.  Sully,  Etc  parte,  Wallit, 
In  re,  14  Q.  B.  D.  950  ;  52  L.  T.  625  ;  33  W.  B. 
733  ;  2  M.  B.  R.  79— Cave,  J. 

Articles  not  connected  with  Business— 0ms 
of  Proof.] — When  a  trader  is  in  possession  at  his 
place  of  business  of  articles  not  in  their  nature 
connected  with  his  business,  and  the  trustee  in 
his  bankruptcy  claims  the  articles  on  the  ground 
that  the  bankrupt  was  the  reputed  owner  of 
them,  much  stronger  evidence  will  be  required 
to  prove  the  reputed  ownership  than  in  the  case 
of  articles  connected  with  the  business,  the  in- 
ference from  the  nature  of  the  articles  being' 
that  they  are  not  connected  with  the  business. 
Lovering,  Ex  parte,  Murrell,  In  re,  24  Ch.  D. 
31  ;  52  L.  J„  Ch.  951 ;  49  L.  T.  242 ;  32  W.  B. 
217— C.  A. 

Artist's  Pictures.] — Where  a  picture  was  lent 
by  the  owner  of  it  to  the  artist  who  had  painted 
it  for  the  purpose  of  being  exhibited  by  him  in 
a  public  gallery  amongst  other  pictures  painted 
by  him,  and  exhibited  there  for  sale,  such  pic- 
ture does  not  pass  to  the  trustee  in  bankruptcy 
on  the  artist  becoming  bankrupt,  as  being  in 
his  order  and  disposition  within  s.  44,  sub-s.  3, 
of  the  Bankruptcy  Act,  1883.  Dudgeon,  E* 
parte,  Cook,  In  re,  1  M.  B.  R.  108— Mathew,  J. 

Shares  in  Company — Chose  in  Action.] — Shares 
in  a  railway  company  are  "  choses  in  action n 
such  as  to  be  excepted  from  the  doctrine  of  re- 
puted ownership  by  s.  44,  sub-s.  3,  of  the  Bank- 
ruptcy Act,  1883.  "  Chose  in  action  "  includes 
all  personal  chattels  not  in  possession.  Colonial 
Bank  v.  Whinney,  11  App.  Cas.  426  ;  56  L.  J.. 
Ch.  43  ;  55  L.  T.  362 ;  34  W.  R.  705  ;  3  M.  B.B. 
207— H.  L.  (R). 

B.  and  I.  were  in  partnership  as  stockbrokers. 
Some  shares  in  a  railway  company  were  bought 
with  partnership  money,  and  equitably  mort- 
gaged by  B.  by  deposit  with  the  appellant  bank 
to  secure  the  firm's  banking  account.  Before 
notice  of  deposit  had  been  given  to  the  company, 
B.  and  1.,  separately,  and  as  members  of  the 
firm,  were  made  bankrupts  : — Held,  that  the 
circumstances  were  such  as  to  prove  that  the 
bankrupts  were  not  reputed  owners  of  the  inte- 
rest of  the  appellant  bank  in  the  shares.    lb. 

"  In  possession  of  Bankrupt  in  his  Trade 

or  Business.'] — J.,  who  carried  on  business  as  a 
stockbroker,  silversmith,  and  watchmaker,  depo- 
sited with  his  bankers  the  certificates  of  thirty 
shares  in  a  joint  stock  company  as  security  for 
the  balance  of  his  overdrawn  account  There 
was  no  formal   transfer  of   the   shares.   The 


135 


BANKRUPTCY— Property. 


126 


company  had  notice  of  the  deposit  on  the  31st 
of  January,  1884.  On  the  2nd  of  February  a 
petition  in  bankruptcy  was  filed  against  J.,  and 
a  receiving  order  made,  and  he  was  subsequently 
adjudged  bankrupt : — Held,  that  the  shares  were 
not  at  the  commencement  of  the  bankruptcy 
M  in  the  possession,  order,  or  disposition  of  the 
btnkropt  in  his  trade  or  business,"  within  s.  44 
of  the  Bankruptcy  Act,  1883.  Nottingham 
B**k,  Eg  parte,  Jenhinson,  In  re,  15  Q.  B.  D. 
441 ;  54  L.  J.,  Q.  B.  601  ;  2  M.  B.  R.  131— D. 

Billi  of  Sale  Acts,  1878  and  1882.]— On  the 
18th  of  September,  1882,  a  debtor  executed  a 
bill  of  sale  of  his  furniture,  &c.  The  deed  was 
registered  under  the. Bills  of  Sale  Act,  1878. 
The  debtor  remained  in  possession  of  the  goods 
antfl  the  2nd  of  November,  1882,  when  he  filed 
a  liquidation  petition.  By  s.  15  of  the  Bills  of 
Sale  Act,  1882,  s.  20  of  the  Act  of  1878,  by 
Tirtae  of  which  the  registration  of  a  bill  of  sale 
takes  the  goods  out  of  the  order  and  disposition 
of  the  grantor,  is  repealed ;  but  s.  3  of  the  Act 
of  1882  provides  that  that  act  shall  not,  "  unless 
the  context  otherwise  requires,"  apply  to  any 
\m  of  sale  dnly  registered  nef  ore  the  commence- 
ment of  the  act  (1st  of  November,  1882),  and  of 
which  the  registration  is  subsisting  : — Held,  that 
the  effect  of  s.  3  was  to  continue  the  protection 
afforded  by  a,  20,  and  that  the  bill  of  sale  holder 
was  entitled  to  the  goods  as  against  the  trustee 
in  the  liquidation.  Izard,  Ex  parte,  Chappie, 
/«  re,  23  Ch.  D.  409  ;  52  L.  J.,  Ch.  802  ;  49 
UT.  230:  32  W.  R  218— C.  A. 

The  repeal  of  s.  20  of  the  Bills  of  Sale  Act. 
1878,  by  s.  15  of  the  Bills  of  Sale  Act,  1882,  is 
limited  by  the  effect  of  s.  3  of  the  latter  act  to 
hills  of  sale  given  by  way  of  security  for  the 
payment  of  money,  and  does  not  operate  to 
ftfect  bills  of  sale  given  bv  way  of  absolute 
transfer.  Swift  v.  Pannell.  24  Ch.  D.  210 ;  53 
L  J,  Ch.  541  ;  48  L.  T.  351  ;  31  W.  R.  543— 

fty,J. 

Cotton  of  Trade — Van  let  to  Grocer  on  Con- 
iitkaal  Sale  mad  Hire.] — A  county  court  judge 
decided  that  no  custom  existed  for  a  grocer  and 
provision  merchant  to  hire  vans  in  the  business,  so 
ft»  to  prevent  the  operation  of  the  reputed  owner- 
chip  clause,  8.  44,  sub-s.  (iii.),  of  the  Bankruptcy 
act,  1883 : — Held,  on  appeal,  that  upon  the  evi- 
dence cm  affidavit  before  the  county  court  judge  it 
it  open  to  him  to  come  to  the  conclusion  to  which 
he  did,  and  that  being  so,  his  decision  would  not 
fee  set  aside ;  but  held  further  that  where  the 
fret  of  a  custom  existing  in  a  particular  trade 
■»■  to  be  decided,  the  case  is  one  proper  to  be 
tried  with  the  assistance  of  a  jury  and  with  wit- 
nesses, and  not  upon  affidavit  evidence  only. 
C&ew,  Ex  parte,  Jensen,  In  re,  4  M.  B.  R.  1 

Hiring  of  Furniture— Hotel-Keeper.]— 

The  custom  for  hotel-keepers  to  hire  the  furni- 
ture of  their  hotels  is  so  notorious,  and  has  been 
»  often  proved,  that  it  need  not  now  be  proved, 
hot  the  court  will  take  judicial  notice  of  it. 
And  the  custom  extends,  not  only  to  furniture 
in  the  strictest  sense  of  the  word,  but  to  all  the 
articles  which  are  necessary  for  the  furnishing 
of  as  hotel  for  the  purpose  of  using  it  as  an 
taeL  The  effect  of  the  custom  is  absolutely  to 
exclude  the  reputation  of  ownership  by  the  hotel- 
toper  of  all  those  articles  in  the  hotel,  at  the 


time  of  his  bankruptcy,  which  are  within  the 
scope  of  the  custom,  without  regard  to  the  ques- 
tion whether  the  particular  articles  are  or  are 
not  in  fact  hired  by  him.  Consequently,  articles 
which  are  his  property  subject  to  a  mortgage  by 
bill  of  sale,  will  be  excluded  from  the  operation 
of  the  reputed  ownership  clause.  Turquand,  Ex 
parte.  Parkers,  In  re  (No.  3),  14  Q.  B.  D.  636  ; 
54  L.  J.,  Q.  B.  242  ;  58  L.  T.  579  ;  33  W.  R.  437 
— C.  A. 


Upholsterer  —  Patterns.]  —  There  is  a 


custom  in  the  upholstering  trade  for  an  up- 
holsterer to  have  in  his  possession  patterns 
belonging  to  the  wholesale  manufacturer,  and, 
consequently,  such  patterns  are  not  in  the 
reputed  ownership  of  the  trader  so  as  to  pass  to 
his  trustee  on  bankruptcy.  Woodward,  Ex 
parte,  Lay,  In  re,  54  L.  T.  683— D. 

Goods  sent  to  Person  in  Furniture  Trade 


"on  Sale  or  Return."] — There  is  no  custom  in 
the  furniture  trade  to  deliver  goods  to  dealers 
upon  "  sale  or  return,"  so  as  to  prevent  the  ope- 
ration of  the  reputed  ownership  clause  (s.  44, 
snb-s.  3)  of  the  Bankruptcy  Act,  1883.  Nassau, 
Ex  parte,  Home,  In  re,  3  M.  B.  R.  51 — Cave,  J. 
The  applicants  deposited  with  the  debtor 
certain  goods  upon  the  terms  of  "  sale  or  return," 
which  were  in  the  possession  of  the  debtor  at 
the  time  of  the  bankruptcy,  and  were  retained 
by  the  trustee : — Held,  that  where  a  custom  is 
sought  to  be  established,  it  lies  on  the  persons 
who  affirm  the  existence  of  a  custom  to  prove  it, 
and  that  although  a  practice  was  undoubtedly 
creeping  into  the  furniture  trade  of  sending 
goods  on  sale  or  return,  the  evidence  given  was 
not  sufficient  to  justify  the  court  in  saying  that 
the  custom  is  an  established  one,  and  so  common 
and  notorious  that  a  person  making  inquiry  of 
those  cognisant  of  the  trade  would  be  told  there 
was  no  doubt  of  such  custom.    lb. 


Hop  Trade.]— There  is  a  custom  in  the 


hop  trade  that  when  hops  are  purchased  from  a 
merchant  and  not  immediately  delivered  to  the 
customer,  they  remain  in  the  merchant's  ware- 
house to  the  customer's  order.  On  the  bank- 
ruptcy of  the  merchant,  hops  in  his  warehouse, 
purchased  and  so  left  to  a  customer's  order,  arc 
not  in  the  order  and  disposition  of  the  bankrupt, 
but  must  be  delivered  up  to  the  customer.  Dyer, 
Ex  parte,  Taylor,  In  re.  53  L.  T.  768  ;  34  W.  R. 
108— Cave,  J. 


Agistment] — H.  placed  certain  stock 


upon  the  lands  of  W.  upon  an  agreement, 
whereby  the  stock  remained  the  property  of  H., 
who,  at  the  end  of  a  fixed  period,  was  to  sell  the 
stock ;  and,  after  deducting  the  original  price 
and  a  percentage  for  profit,  to  hand  over  the 
balance  to  W.  During  the  continuance  of  the 
agreement,  W.  became  bankrupt,  and  the  trustee 
claimed  the  stock  in  question  as  being  within 
the  reputed  ownership  of  the  bankrupt : — Held, 
on  appeal,  that  the  custom  of  agistment  was 
notorious,  and,  that  being  the  case,  that  no 
reputation  of  ownership  could  arise  in  the  case 
of  stock  upon  the  lands  of  a  farmer.  Huggins, 
Ex  parte,  Woodward,  In  re,  54  L.  T.  683  ;  3 
M.  B.  R.  75— D. 

The  custom  of  agistment  is  notorious,  and 
therefore  no  reputation  of  ownership  can  arise 


127 


BANKRUPTCY-^Properfy. 


128 


in  the  case  of  stock  upon  the  lands  of  a  farmer. 
Burke,  In  re,  19  L.  R.,  Ir.  564— Bk. 


Hiring  of  Printing  Machinery  and  Type.] 


— A  custom  exists  in  the  printing  trade  to  let 
printing  machinery  on  hire  so  as  to  exclude  the 
doctrine  of  reputed  ownership  in  the  event  of 
the  bankruptcy  of  the  hirer ;  but  such  custom 
does  not  extend  so  as  to  include  the  hiring  of 
type.  Hughes,  Ex  parte,  Thackrah,  In  re,  5 
M.  B.  R.  235— Cave,  J. 

Debts  growing  due  to  Bankrupt  in  course  of 
Trade— Deposit  of  Hiring  Agreemant.J  — The 
deb  tore  deposited  with  a  creditor  as  security  for 
his  debt  a  hire-purchase  agreement  by  which 
they  had  agreed  to  let  certain  furniture  on  the 
hire-purchase  system,  to  be  paid  for  by  half- 
yearly  instalments,  with  the  usual  conditions  in 
case  of  default,  etc  No  notice  of  the  assign- 
ment was  given  to  the  hirer,  and,  before  the 
second  instalment  became  due,  the  debtors  were 
adjudicated  bankrupt : — Held,  that  the  amount 
payable  under  the  agreement  was  a  debt  grow- 
ing  due  to  the  bankrupts  in  the  course  of  their 
trade,  and,  no  notice  of  the  assignment  having 
been  given,  the  trustee  in  bankruptcy  was  en- 
titled to  the  benefit  of  the  agreement  under  the 
order  and  disposition  clause  of  the  Bankruptcy 
Act,  1883.  Bawling*,  Ex  parte,  Davis,  In  re, 
60  L.  T.  156 ;  37  W.  R.  141— Cave,  J. 


c,  Property  appropriated  to  meet  Bills  of 


Appropriation  of  Remittances.]  —  A  liqui- 
dating debtor  was  in  the  habit  of  accepting  bills 
for  a  trader  abroad,  receiving  from  him  remit- 
tances sufficient  to  meet  the  bills.  The  proceeds 
of  the  remittances  were  carried  by  the  debtor  to 
the  credit  of  the  trader  in  a  general  account 
between  them,  and  he  was  allowed  interest 
thereon  until  the  time  when  the  bills  fell  due. 
On  a  claim  by  the  trader  that  a  draft  remitted 
by  him  was  specifically  appropriated  to  meet  a 
bill  to  the  same  amount,  falling  due  a  few  days 
after  the  remittance : — Held,  that  as  the  draft 
was  no  longer  in  specie  at  the  time  the  debtor 
failed,  there  was  no  appropriation,  and  that  he 
was  not  entitled  to  the  proceeds  of  the  bill. 
Broad,  Ex  parte,  Keek,  In  re,  13  Q.  B.  D.  740  ; 
54  L.  J.,  Q.  B.  79 ;  21  L.  T.  388  ;  32  W.  R.  912— 
C.  A. 

Insolvency  of  Drawer  and  Acceptor— Appli- 
cation of  Remittances  remaining  in  Specie.] — 
Bankers  in  London  granted  to  merchants  in 
Ceylon  a  letter  of  credit,  authorising  the  mer- 
chants to  draw  on  them  at  three,  four,  or  eix 
months'  sight,  for  any  sums  not  exceeding 
10,0002.  at  one  time,  the  drafts  to  be  covered 
within  two,  three,  or  five  months  (according  as 
they  had  been  issued  at  three,  four,  or  six 
months),  by  remittances  on  good  London  houses. 
And  the  bankers  thereby  agreed  with  the  mer- 
chants, and  also,  as  a  separate  engagement,  with 
the  bona  fide  holders  respectively  of  the  bills, 
that  the  bills  should  be  duly  accepted  on  pre- 
sentation and  paid  at  maturity.  The  course  of 
dealing  between  the  parties  was  this — if  the 
remittances  sent  as  cover  for  the  merchants' 
draf ts  matured  later  than  the  drafts  accepted, 
interest  was  debited  by  the  bankers  against  the 


merchants  from  the  date  of  the  maturity  of  the 
acceptances  to  that  of  the  maturity  of  the  re- 
mittances, while  if  the  remittances  matured 
earlier  than  the  acceptances,  interest  was  credited 
to  the  merchants.  In  all  cases  the  bankers  dealt 
with  the  remittances  as  they  thought  expedient, 
and  the  proceeds  were  paid  into  the  general 
banking  account  of  their  firm.  Under  this 
letter  of  credit  a  number  of  bills  were  drawn 
by  tha  merchants  on  the  bankers,  and  were 
accep  d  by  them,  and  other  bills  were  remitted 
by  the  merchants  to  cover  the  acceptances,  the 
letters  which  accompanied  the  remittanca 
always  describing  them  as  sent  to  cover  par- 
ticular drafts  which  were  specified  in  the  letters. 
The  bankers  stopped  payment  and  filed  a  liqui- 
dation petition,  under  which  a  trustee  was  after- 
wards appointed.  In  consequence  of  their 
stoppage  the  merchants  also  stopped  payment 
At  the  date  of  the  liquidation  petition  accept- 
ances under  the  letter  of  credit  to  the  amount 
of  U,535Z.  were  outstanding,  to  meet  which  the 
bankers  had  received  from  the  merchants  re- 
mittances to  the  amount  of  3,009/.,  of  which  two 
bills  remained  in  specie  in  the  hands  of  the 
bankers,  the  others  naving  been  converted  by 
them  into  cash.  After  the  filing  of  the  petition 
two  other  bills,  which  had  been  posted  by  the 
merchants  before  they  knew  of  the  stoppage  of 
the  bankers,  came  into  the  hands  of  the  receiver 
appointed  under  the  petition.  The  merchants' 
firm  consisted  of  two  partners,  one  of  whom 
was  insane,  and  resident  in  Germany.  The  sane 
partner  procured  an  adjudication  of  insolvency 
against  himself  in  Ceylon,  and  under  this  in- 
solvency an  assignee  was  appointed.  The  sane 
partner  deposed  that  "under  this  insolvency 
my  estate,  and  also  the  estate  of  my  firm,  so  far 
as  legally  can  be,  is  now  being  administered,"  and 
this  evidence  was  not  contradicted : — Held,  that 
the  joint  estate  of  the  merchants,  as  well  as  that 
of  the  bankers,  was  under  a  forced  administra- 
tion, and  that  consequently  the  rule  in  Waring, 
Ex  parte  (19  Ves.  345),  applied.  Held,  there- 
fore, that  the  proceeds  of  the  four  remitted  bills 
which  were  in  specie  at  the  commencement  of 
the  liquidation  must  be  applied,  not  in  paying 
the  whole  of  the  acceptances  rateably,  nor  in 
paying  rateably  all  those  acceptances  to  meet 
which  remittances  had  been  sent  before  the 
filing  of  the  liquidation  petition,  but  in  paying 
those  acceptances  to  meet  which  the  four  bills 
had  been  appropriated  by  the  letters  with 
which  they  were  sent.  When  remittances  are 
sent  under  such  circumstances  to  cover  drafts  of 
the  remitter  accepted  by  the  remittee,  the  re- 
mittee may,  so  long  as  he  is  solvent,  be  entitled 
by  mercantile  usage  or  the  course  of  dealing 
between  the  parties,  to  deal  with  the  remittances 
as  he  pleases ;  but  so  soon  as  he  becomes  in- 
solvent, the  remitter  is  entitled  to  insist  on 
having  the  remittances  applied  in  paying  the 
acceptances,  and  that  right  is  the  foundation  of 
the  rule  in  Waring,  Ex  parte  (19  Ves.  345),  bnt 
the  right  extends  only  to  those  remittances 
which  remain  in  specie  at  the  date  of  the  in- 
solvency. Dever,  Ex  parte,  Suse,  In  Te,  j4 
Q.  B.  D.  611 ;  54  L.  J.,  Q.  B.  890;  53  L.  T. 
131 ;  33  W.  R.  625— CI  A. 

Specific  Appropriation  of  Goods  to  meet]— 
J.  carried  on  business  as  a  merchant  at  Liver- 
pool under  the  firm  of  •«  8.,  J.,  &  Co.,"  and  also 
at  Pernambuco,  in  partnership  with  the  defen- 


129 


BANKEUPTCY— Property. 


180 


dant  C,  under  the  firm  of  M  J.,  P.,  &  Co."    Both 
firau  employed  B.  as  their  agent  in  New  York. 
The  firm  at  Pernambuco  were  in  the  habit  of 
receiving  orders  from  persons  there  for  the  pur- 
chase of  goods  in  New  York.    Upon  receipt  of 
these  orders  that  firm  instructed  the  Liverpool 
firm,  who  instructed  B.    B.  then  purchased  the 
goods  and  shipped  them  to  the  Pernambuco  firm, 
at  the  same  time  sending  the  bills  of  lading 
to  that  firm.    To  enable  him  to  pay  for  the 
goods,  B.  drew  bills  of  exchange  on  the  Liver- 
pool firm  and  sold  them  in  New  York.   The  bills 
were  not  drawn  for  the  precise  amount  of  the 
shipments,  but  for    round   sums    which  were 
brooght  into  the  account  current  between  B. 
and  the  Liverpool  firm.    B.  advised  the  Liver- 
pool firm   of   the  bills,  and  with  the  advice 
forwarded  a   statement   of   his  account  with 
them.    To  each  bill  was  attached  a  counterfoil 
headed  "Advice  of  draft/'  and  containing  a 
memorandum  of  the  date  and  amount  of  the 
hill  and  the  name  of  the  drawer,  with  the  words 
b Against  shipments  per  "  (naming  the  vessel). 
"Please  protect  the  draft  as  advised  above." 
The  Liverpool  firm,  on  the  bills  being  presented 
to  them  for  acceptance,  detached  the  counter- 
foils and  retained  them  in  their  own  possession. 
The  plaintiffs  were  the  holders  for  value  of  three 
tills  drawn  by  B.  on  the  Liverpool  firm  in 
accordance  with  the  above  course  of  dealing, 
the  goods  purchased  with  the  proceeds  of  the 
hills  being  shipped  by  B.  to  the  Pernambuco 
firm,  and  the  bills  of  lading  being  also  sent  to 
that  firm.    On  the  10th  of  June,  1879,  the  Liver- 

Sol  firm  stopped  payment,  and  on  the  following 
y  the  goods  arrived  at  Pernambuco,  and 
were,  with  the  bills  of  lading,  delivered  to  the 
persons  who  had  ordered  them,  the  purchase- 
money  being  received  by  the  Pernambuco  firm. 
The  three  bills  of  exchange  being  dishonoured 
by  the  Liverpool  firm,  the  plaintiffs  brought  an 
action  against  the  Pernambuco  firm  claiming 
to  hare  the  bills  paid  out  of  the  proceeds  of  the 
goods,  on  the  ground  that  the  latter  had  been 
specifically  appropriated  to  meet  the  bills,  but 
the  defendants  claimed  to  retain  the  proceeds 
against  a  debt  due  to  them  from  the  Liverpool 
firm :— Held,  that  there  had  been  no  such 
specific  appropriation.  Banner,  Ex  parte  (2 
Cfa.  D.  278),  considered.  Phelps  v.  Comber,  29 
Ol  D.  813 ;  54  L.  J.,  Ch.  1017  ;  52  L.  T.  873  ; 
33  W.  B.  829 ;  5  Asp.  M.  C.  428— C.  A. 

Iisorrcmeyof  Acceptor-- Sights  of  Holder 

ni  Drawer— Interest  credited  by  Accepter  to 

Drawer.] — Bankers  in  London,  at  the  request  of 
H,  who  was  acting  as  the  agent  in  London  of  S., 
a  merchant  at  Shanghai,  on  the  16th  of  March, 
1883,  granted  to  S.  a  letter  of  credit  for  20,0002. 
The  letter  authorized  8.  "  to  draw  on  us  at  four 
months'  sight  for  any  sums  not  exceeding 
20,000*.,  such  draft  or  drafts  to  be  accompanied 
by  bills  of  lading  and  invoices  of  tea,  purchased 
according  to  order  of  K.,  and  shipped  by  steamers 
to  London,  and  marine  insurance  policies  re- 
lating thereto,  and  these  documents  to  be  sur- 
rendered to  us  against  our  acceptances.  And 
we  hereby  agree  with  you,  and  also  as  a  separate 
engagement  with  the  bona  fide  holders  respec- 
tively of  the  bills  drawn  in  compliance  with  the 
tons  of  this  credit,  that  the  same  shall  be  duly 
accepted  on  presentation,  and  paid  at  maturity, 
d  drawn  and  negotiated  on  or  before  the  31st  of 
1883."    It  was  agreed  that  a  com- 


mission .  of  1  per  cent,  should  be  paid  to  the 
bankers  on  all  drafts  drawn  under  the  credit, 
and  M.  agreed  that  he  would  meet  all  the  ac- 
ceptances on  or  before  their  due  dates,  "the 
usual  rate  of  2£  per  cent,  being  allowed  on  all 
prepayments."  Bills  were  drawn  by  S.  under 
this  credit  against  various  parcels  of  tea  con- 
signed by  him  to  M.  for  sale.  In  each  case  the 
bill  mentioned  the  parcel  of  tea  against  which 
it  was  drawn,  and  purported  to  be  drawn  under 
the  letter  of  credit,  the  date  of  which  was  men- 
tioned, and  the  bills  of  lading  and  other  shipping 
documents  were  in  each  case  attached  to  the 
bill.  S.,  in  each  case,  advised  the  bankers  of 
the  drawing  of  the  bill,  mentioning  the  tea 
against  which  it  was  drawn,  and  the  name  of  the 
vessel  by  which  it  was  shipped.  S.  discounted 
the  bills  with  a  Chinese  bank,  and  their  agent  in 
London  presented  the  bills  for  acceptance,  and 
in  exchange  for  the  acceptance  delivered  the 
bills  of  lading  and  other  documents  attached  to 
the  London  bankers,  in  whose  name  the  tea  was 
then  warehoused  with  a  dock  company.  As  M. 
from  time  to  time  required  portions  of  the  tea 
for  delivery  to  purchasers,  the  bankers  handed  to 
him  warrants  or  delivery  orders,  he  paying  them 
the  value  of  the  tea  comprised  therein.  The 
moneys  thus  received  were  paid  to  the  credit  of 
the  general  current  account  of  the  bankers  with 
their  own  bankers.  In  an  account  in  their  books 
with  M.,  they  debited  him  with  the  amounts  of 
the  acceptances,  and  credited  him  with  the 
amounts  received  by  the  sales,  and  with  2£  per 
cent,  according  to  the  agreement.  The  London 
bankers  suspended  payment,  and  filed  a  liquida- 
tion petition  before  their  acceptances  matured : 
— Held,  that,  having  regard  to  the  terms  of  the 
letter  of  credit,  the  bill-holders  could  not  claim 
any  specific  appropriation  of  the  teas  to  meet 
the  acceptances.  Frith  v.  Forbes  (4  D.,  F.  &  J. 
409)  distinguished.  Dever,  Ex  parte,  Suse,  In 
re,  13  Q.  B.  D.  766 ;  51  L.  T.  437 ;  33  W.  B. 
290— C.  A. 

But  held,  that  8.  was  entitled  to  have  the  teas 
which  remained  in  specie  at  the  date  of  the  sus- 
pension (but  not  the  proceeds  of  the  sale  of  the 
teas  which  were  sold  before  the  suspension), 
applied  in  payment  of  the  acceptances.    lb. 


Direction  on  Bill  to  charge  it  to  Account 


of  Cargo  as  advised — Contemporaneous  Letter 
of  Advice] — A.  purchased  from  B.  &  Co.  in 
America  a  bill  of  exchange,  dated  the  5th  of 
August,  1875,  payable  sixty  days  after  sight,  for 
2,500Z.,  drawn  upon  K.  in  London,  on  the  face  of 
which  was  a  direction  "  to  charge  the  same  on 
account  of  cheese  per  Britannic,  and  lard  per 
Greece  as  advised,"  and  on  the  same  day  B.  &  Co. 
wrote  to  K.  a  letter  of  advice,  inclosing  bills  of 
lading  for  the  cheese  and  lard,  and  informing  K. 
that  as  against  these  they  valued  on  him  at  sixty 
dayB'  sight  for  2,500Z.  in  favour  of  A.  The  bill  was 
not  accepted,  K.  having  heard  that  B.  &  Co.  had 
suspended  payment  on  the  7th  of  August ;  but, 
on  the  arrival  of  the  consignments  in  England, 
K.  took  possession  of  them,  and  realized  them, 
receiving  the  proceeds,  out  of  which  he  claimed 
to  retain  a  balance  due  to  him  on  the  general 
account  between  him  and  B.  &  Co.  From  the 
evidence  as  to  the  course  of  dealing  between 
A.  and  B.  &  Co.,  it  appeared  that  B.  &  Co.  had  for 
many  years  previously  been  in  the  habit  of  con- 
signing American  produce  to  E.,  and  drawing 
bills  on  him  in  a  similar  form  to  that  of  the 


181 


BANKRUPTCY— Property. 


132 


5th  of  August,  but  that  there  had  not  been  any 
practice  of  specifically  appropriating  the  re- 
mittances to  meet  any  particular  bills.  A. 
brought  an  action  against  B.,  and  the  trustee  in 
bankruptcy  of  B.  &  Go.  claiming  to  be  entitled 
to  a  charge  on  the  proceeds  of  the  cheese  and 
lard  in  priority  to  all  other  persons.  No  ques- 
tion was  raised  as  between  K.  and  the  trustee 
in  bankruptcy  as  to  their  respective  rights : — 
Held,  that  A.  was  not  entitled  to  the  charge 
claimed,  either  (1)  on  the  ground  that  the  direc- 
tion on  the  face  of  the  bill  of  exchange  operated 
as  an  equitable  assignment ;  or  (2)  that  on  the 
authority  of  Frith  v.  Forbes  (4  D.  F.  &  J.  409), 
the  letter  of  advice  created  a  specific  appropria- 
tion of  the  remittances  to  meet  the  bill  in  favour 
of  B.  &  Co.,  the  benefit  of  which  was  transferred 
to  A.  by  the  direction  on  the  bill  of  exchange. 
Brown  v.  Kwgh,  29  Ch.  D.  848  ;  54  L.  J.,  Ch. 
1024  ;  52  L.  T.  878  ;  34  W.  R.  2 ;  5  Asp.  M.  C. 
433— C.  A. 

The  case  of  Frith  v.  Forbes,  if  and  in  so  far  as 
it  is  intended  to  lay  down  that,  as  a  general 
principle  of  law,  such  a  letter  of  advice  created 
a  specific  appropriation  in  favour  of  the  con- 
signors and  drawers  of  the  bill,  the  benefit  of 
which  was  transferred  by  the  direction  on  the 
bill  to  the  bill-holders — is  erroneous,  and  must 
not  be  followed.    lb. 


d.  Property  held  by  Bankrupt  as  Trustee. 

Sale  of  Goods.] — Where  goods  have  been  sold 
to  a  debtor  and  there  is  no  evidence  to  show  that 
the  sale  was  by  sample,  the  mere  fact  that  a 
letter  is  subsequently  written  by  the  vendee  to 
the  vendor  stating  that  he  would  not  accept  the 
goods  but  would  hold  them  for  the  vendor  and 
try  to  sell  them  for  him  (to  which  letter  no 
answer  is  returned  by  the  vendor),  will  not  con- 
stitute the  vendee  a  trustee  for  the  vendor  within 
s.  44  of  the  Bankruptcy  Act,  1883,  bo  as  to  prevent 
the  vendee's  trustee  in  bankruptcy  from  claiming 
such  goods  as  part  of  the  estate  of  the  bankrupt. 
Fabian,  Ex  parte,  Landroch,  In  re,  1  M.  B.  R. 
62— Cave,  J. 

Wife's  Separate  Property  in  Possession  of 
Husband— Carriage  Settlement  made  Abroad.] 
— The  rule  that  a  husband  is  a  trustee  for  his 
wife  of  her  separate  property  when  no  other 
trustee  has  been  appointed,  applies  to  that  which 
becomes  her  separate  property  by  virtue  of  a 
marriage  contract  entered  into  in  a  foreign 
country.  When,  therefore,  Buch  property  is  in 
the  possession  of  a  husband  at  the  commence- 
ment of  his  bankruptcy  it  does  not  pass  to  his 
trustee.  Sibeth,  Ex  parte,  Sibeth,  In  re,  14 
Q.  B.  D.  417  ;  54  L.  J.,  Q.  B.  322  j  33  W.  R.  556 
— C.A. 

Wife's  Chose  in  Action— Ante-nuptial  Parol 
Agreement  to  Settle— Gift  by  Husband  to  Wife.] 
— On  a  marriage  it  was  verbally  agreed  between 
the  husband  and  the  wife  that  a  sum  of  money 
standing  to  the  credit  of  the  wife  on  deposit  at 
a  bank  in  her  maiden  name  should  be  her  sepa- 
rate property.  Nothing  further  was  done  ;  but 
after  the  marriage  the  money,  with  the  husband's 
consent,  remained  at  the  bank  in  the  wife's 
maiden  name  ;  and  she  received  the  interest  on 
it  for  two  years  after  the  marriage,  when  she 
drew  the  money  out  of  the  bank.    The  trustee 


in  the  subsequent  liquidation  of  the  husband 
having  claimed  payment  of  the  money  from  the 
wife  as  part  of  her  husband's  property  -.—Held, 
that  there  had  been  a  gift  of  the  money  by  the 
husband  to  the  wife  after  the  marriage  ;  that  he 
had  become  a  trustee  of  it  for  her  as  her  separate 
property  ;  and  that  consequently,  it  did  not  pass 
to  the  trustee  in  his  liquidation.  Whitehead, 
Ex  parte.  Whitehead,  In  re,  14  Q.  B.  D.  419 ;  54 
L.  J.,  Q.  B.,  240  ;  52  L.  T.  597  ;33  W.R.  471 ; 
49  J.  P.  405— C.  A. 

Loan  for  Specific  Purpose  —  Bankruptcy  of 
Borrower.] — Where  money  is  advanced  by  way 
of  loan  for  the  purpose  of  being  applied  for  a 
specific  purpose  and  upon  the  undertaking  of  the 
borrower  so  to  apply  it,  a  duty  is  cast  upon  the 
borrower  which  places  him  in  the  position  of  a 
trustee  of  the  money  advanced,  and  in  the  event 
of  the  bankruptcy  of  the  borrower  before  the 
undertaking  has  been  fulfilled  the  lender  is 
entitled  to  follow  and  recover  the  money  in  the 
same  manner  as  if  it  had  been  in  terms  a  trust 
fund.  Qibert  v.  Qonard,  54  L.  J.,  Ch.  439 ;  52 
L.  T.  54  ;  33  W.  R.  302— North,  J. 

Payment  to  Cestui  qua  Trust— Terms— Costs.] 

— The  bankrupts  were  stockbrokers  who  had  been 
employed  by  the  applicant  to  buy  certain  specific 
shares  for  him,  ana  had  received  payment  for 
the  same.  These  shares,  with  others,  were 
deposited  by  the  bankrupts  with  B.  &  Co.,  a* 
security  for  an  advance.  When  the  bankruptcy 
became  known  B.  &  Co.  sold  the  shares,  reim- 
bursed themselves,  and  handed  over  the  balance 
to  the  trustee.  Upon  the  applicants  sending  in 
a  claim  for  the  balance  another  claimant 
retired  : — Held,  that  the  money  might  be  paid 
over  to  the  applicant  on  the  terms  that  his 
solicitor  would  give  a  personal  undertaking  to 
repay  so  much  as  the  court  might  order  at  any 
time  within  three  years.  Held,  also,  that  the 
costs  of  the  applicant  must  be  borne  by  him, 
since  it  would  be  unjust  that  the  expense  of  en- 
forcing his  claim  should  be  borne  by  the  general 
body  of  the  creditors.  Banhart,  Ex  parte, 
Blakcway,  In  re,  62  L.  T.  630— Cave,  J. 


e.  Salary  and  Income. 

"Salary" — Service  Terminable  by  Hotice— 
Commercial  Traveller.] — A.  was  employed  as  a 
commercial  traveller  at  a  salary  of  100Z.  a  year, 
terminable  by  a  week's  notice.  A.  became  bank- 
rupt, and  the  county  court  judge  ordered  him 
to  pay  202.  every  year  out  of  such  salary  to  his 
trustee  in  bankruptcy  according  to  the  provisions 
of  the  Bankruptcy  Act,  1883,  s,  53,  sub-s.  2  :— 
Held,  that  A.  received  a  "salary"  within  the 
meaning  of  the  section,  and  that  the  order  was 
right.  Brindle,  Ex  parte,  Brindle,  In  re,  or 
Brindley,  Ex  parte,  Brindley,  In  re,  56  L.  T. 
498  ;  35  W.  R.  596  ;  4  M.  B.  R.  104— D. 

' '  Income  " — Voluntary  Allowance  —  Retired 
Officer  of  Indian  Army.] — A  voluntary  allow- 
ance granted  by  the  Secretary  of  State  for  India 
to  an  officer  of  the  Indian  army  on  compulsory 
retirement,  to  which  the  recipient  has  no  claim 
or  right,  and  which  can  be  withdrawn  at  any 
time  at  the  discretion  of  the  Secretary  of  State, 
is  not  4* income"  within  the  meaning  of  the 
Bankruptcy  Act,  1883  (46  &  47  Vict.  c.  52),  s.  53, 


133 


BANKRUPTCY— Property. 


184 


snb-s.  2,  and  therefore  an  order  cannot  be  made 
for  the  payment  of  such  allowance  to  the  trustee 
in  bankruptcy  of  the  recipient.  Webber,  Ex 
parte,  Webber,  In  re,  18  Q.  B.  D.  Ill  ;  56  L.  J., 
a  B.  209 ;  55  L.  T.  816  ;  35  W.  R.  308 ;  3  M. 
B.  R.  288— D. 

Future  Earnings  of  Professional  Kan.] 

—The  word  "  income"  in  s.  90  of  the  Bankruptcy 
Act.  1869,  applies  only  to  an  "  income  "  ejusdem 
generis  with  a  "  salary,"  and  does  not  enable  the 
court  to  set  aside  for  the  benefit  of  the  creditors 
of  a  professional  man,  who  is  an  undischarged 
bankrupt,  any  part  of  his  prospective  and  con- 
tingent earnings  in  the  exercise  of  his  personal 
skill  and  knowledge.  Benwell,  Ex  parte,  Button, 
1*  re,  14  Q.  B.  D.  301 ;  54  L.  J.,  Q.  B.  53 ;  51 
L.  T.  677  ;  33  W.  R.  242-C.  A. 

The  remuneration  of  an  uncertified  bankrupt, 
acting  as  an  election  agent  or  as  a  solicitor  in 
legal  proceedings,  is  within  the  term  "  personal 
earnings"  and  does  not  vest  in  the  official 
assignees.    Ebbs,  In  re,  19  L.  R»,  Ir.  81— Bk. 


£  Material ■  being1  used  by  Bankrupt  in 
Execution  of  Contracts. 

What  passes  to  Trustee.] — The  principles 
applicable  to  the  sale  of  part  of  a  ship  are 
equally  applicable  to  the  sale  of  part  of  any 
corpus  manufactum  in  course  of  construction. 
And  it  follows  that  it  is  competent  for  parties  to 
agree  for  a  valuable  consideration  that  a  specific 
article  shall  be  sold  and  become  the  property  of 
the  purchaser  as  soon  as  it  has  reached  a  certain 
stage  ;  but  it  is  a  question  of  construction  in  each 
case  at  what  stage  the  property  shall  pass ;  and 
a  question  of  fact  whether  that  stage  has  been 
reached.  On  the  other  hand,  materials  provided 
by  the  builders  as  portions  of  the  fabrics,  whether 
wholly  or  partially  finished,  cannot  be  regarded 
as  appropriated  to  the  contract,  or  aB  "  sold," 
unless  they  have  been  "affixed,"  or  in  a  reason- 
able sense  made  part  of  the  corpus.  Wood  v. 
Bell  (6  E.  &  B.  355),  and  Tripp  v.  Armitage  (4 
M.  &  W.  687)  approved.  Seath  v.  Moore,  11 
App.  Cas.  350  ;  55  L.  J.,  P.  C.  54  ;  54  L.  T.  690  ; 
»  Asp.  M.  C.  586— H.  L.  (Sc). 

A  contract  for  the  building  of  a  ship  provided 
that,  if  at  any  time  the  builder  should  cease 
working  on  the  ship  for  fourteen  days,  or  should 
allow  the  time  for  completion  and  delivery  of 
the  ship  to  expire  for  one  month  without  the 
same  having  been  completed  and   ready    for 
delivery,  or  in  the  event  of  the  bankruptcy  or 
insolvency  of  the  builder,  it  should  be  lawful 
then  and  thenceforth  for  the  buyer  to  cause  the 
ship  to  be  completed  by  any  person  he  might 
see  fit  to  employ,  or  to  contract  with  some  other 
person  for  the  completion  of  the  work  agreed  to 
be  done  by  the  builder,  and  to  employ  such 
materials  belonging  to  the  builder  as  should  be 
then  on  his  premises,  and  which  should  either 
have  been  intended  to  be,  or  be  considered  fit 
and  applicable  for  the  purpose  : — Held,  that,  so 
far  as  this  clause  applied  to  the  bankruptcy  of 
the  builder,  it  was  void  as  against  the  trustee 
in  his  bankruptcy  as  being  an  attempt  to  con- 
trol the   user   after   bankruptcy  of    property 
vested  in  the  bankrupt  at  the  date  of  the  bank- 
ruptcy, and  as  depriving  the  trustee  of  the  right 
to  elect  whether  he  would  complete  the  ship  or 
not  at  might  seem  most  advantageous  fox  the 


creditors  under  the  bankruptcy,  and  transferring 
that  right  of  election  to  the  buyer.  Barter,  Ex 
parte,  Walker,  In  re,  26  Ch.  D.  510 ;  53  L.  J., 
Ch.  802  ;  51  L.  T.  811 ;  32  W.  R.  809— C.  A. 

Held,  also,  that,  this  clause  having  been  put 
in  force  by  the  buyer  on  the  filing  of  a  liquida- 
tion petition  by  the  builder,  the  user  of  the 
builder's  goods  in  the  completion  of  the  ship 
could  not  be  justified  on  the  ground  of  a  sub- 
sequent cesser  of  work  on  the  ship.    lb. 


8.  Of  Harried  Women. 

Trade  carried  on  separately  from  Husband 
— Life  Estate  —  Marriage  Settlement]  —  Real 
property  was  by  a  marriage  settlement  vested 
in  a  trustee  for  trust  for  a  married  woman  for 
life  and  her  separate  use  without  restriction  on 
anticipation,  with  remainder  to  such  persons  as 
she  might  appoint,  with  remainder  in  default 
of  appointment.  The  married  woman  carried 
on  a  trade  separately  from  her  husband  and 
became  bankrupt : — Held  (Lord  Esher,  M.  R., 
dissenting),  that  the  trustee  in  bankruptcy  in 
claiming  the  life  estate  was  not  interfering  with 
or  affecting  the  settlement  within  s.  19  of  the 
Married  Women's  Property  Act,  1882,  and  that 
it  passed  to  him  under  the  bankruptcy  under 
s.  1,  snb-s.  5  of  the  Act.  Boyd,  Ex  parte,  Arm- 
strong, In  re,  21  Q.  B.  D.  264 ;  57  L.  J.,  Q.  B. 
553  ;  59  L.  T.  806  ;  36  W.  R.  772 ;  5  M.  B.  R. 
200— C.  A. 

Separate   Property — General  Power   of 

Appointment  J — By  the  Married  Women's  Pro- 
perty Act,  1882  (45  &  46  Vict.  c.  75),  s.  1, 
sub-s.  5,  "  Every  married  woman  carrying  on  a 
trade  separately  from  her  husband  shall,  in 
respect  of  her  separate  property,  be  subject  to 
the  bankruptcy  laws  in  the  same  way  as  if  she 
were  a  feme  sole  "  : — Held,  that  the  expression 
"separate  property"  includes  only  that  which 
would,  if  the  woman  was  unmarried,  be  her  "  pro- 
perty," and  does  not  therefore,  include  a  general 
power  of  appointment  by  deed  or  will,  of  which 
she  is  the  donee,  but  which  she  has  not  exercised ; 
and  a  married  woman  who  has  traded  separately 
from  her  husband,  and  who  has  been  adjudicated 
a  bankrupt,  cannot  be  compelled  to  execute  a 
deed  exercising  such  a  power  in  favour  of  the 
trustee  in  the  bankruptcy.  Gilchrist,  Ex  parte, 
or  Armstrong,  Ex  parte,  Armstrong,  In  re,  17 
Q.  B.  D.  521  ;  55  L.  J.,  Q.  B.  578  ;  55  L.  T.  638  ; 


34  W.  R.  709  ; 
C.A. 


51  J.  P.  292 ;  3  M.  B.  R.  193— 


Wife's  Estate— Bankruptcy  of  Husband- 
Sight  of  Trustee  in  Bankruptcy  to  administer.] 
— A  husband's  right  to  administer  to  his  wife's 
estate  is  not  such  a  right  as  will  vest  in  the 
trustee  under  his  bankruptcy.  Where  the 
husband  of  a  deceased  intestate  had  left  this 
country  and  had  been  adjudicated  bankrupt 
before  he  had  administered  to  his  wife's  estate, 
the  court  refused  to  regard  his  right  to  administer 
as  property  divisible  among  his  creditors  under 
s.  44  of  the  Bankruptcy  Act,  but  made  a  grant 
of  administration  to  the  wife's  estate  to  the 
trustee,  under  s.  73  of  the  Court  of  Probate  Act 
Turner,  In  goods  of,  12  P.  D.  18  ;  56  L.  J.,  P. 
41 ;  57  L.  T.  372  ;  35  W.  B.  384— Butt,  J. 

»  2 


181 


BANKRUPTCY— Property. 


132 


5th  of  August,  but  that  there  had  not  been  any 
practice  of  specifically  appropriating  the  re- 
mittances to  meet  any  particular  bills.  A. 
brought  an  action  against  B.,  and  the  trustee  in 
bankruptcy  of  B.  &  Co.  claiming  to  be  entitled 
to  a  charge  on  the  proceeds  of  the  cheese  and 
lard  in  priority  to  all  other  persons.  No  ques- 
tion was  raised  as  between  K.  and  the  trustee 
in  bankruptcy  as  to  their  respective  rights : — 
Held,  that  A.  was  not  entitled  to  the  charge 
claimed,  either  (1)  on  the  ground  that  the  direc- 
tion on  the  face  of  the  bill  of  exchange  operated 
as  an  equitable  assignment ;  or  (2)  that  on  the 
authority  of  Frith  v.  Forbes  (4  D.  F.  &  J.  409), 
the  letter  of  advice  created  a  specific  appropria- 
tion of  the  remittances  to  meet  the  bill  in  favour 
of  B.  &  Co.,  the  benefit  of  which  was  transferred 
to  A.  by  the  direction  on  the  bill  of  exchange. 
Brown,  v.  Koujh,  29  Ch.  D.  848  ;  54  L.  J.,  Ch. 
1024  ;  52  L.  T.  878  ;  34  W.  R.  2  ;  5  Asp.  M.  C. 
433— C.  A. 

The  case  of  Frith  v.  Forbes,  if  and  in  so  far  as 
it  is  intended  to  lav  down  that,  as  a  general 
principle  of  law,  suet  a  letter  of  advice  created 
a^  specific  appropriation  in  favour  of  the  con- 
signors and  drawers  of  the  bill,  the  benefit  of 
which  was  transferred  by  the  direction  on  the 
bill  to  the  bill-holders — is  erroneous,  and  must 
not  be  followed.    lb. 


d.  Property  held  by  Bankrupt  aa  Trustee. 

Sale  of  Goods.] — Where  goods  have  been  sold 
to  a  debtor  and  there  is  no  evidence  to  show  that 
the  sale  was  by  sample,  the  mere  fact  that  a 
letter  is  subsequently  written  by  the  vendee  to 
the  vendor  stating  that  he  would  not  accept  the 
goods  but  would  hold  them  for  the  vendor  and 
try  to  sell  them  for  him  (to  which  letter  no 
answer  is  returned  by  the  vendor),  will  not  con- 
stitute the  vendee  a  trustee  for  the  vendor  within 
s.  44  of  the  Bankruptcy  Act,  1888,  bo  as  to  prevent 
the  vendee's  trustee  in  bankruptcy  from  claiming 
such  goods  as  part  of  the  estate  of  the  bankrupt. 
Fabian,  Ex  parte,  Landrock,  In  re,  1  M.  B.  R. 
62— Cave,  J. 

Wife's  Separate  Property  in  Possession  of 
Husband— Marriage  Settlement  made  Abroad.] 

— The  rule  that  a  husband  is  a  trustee  for  his 
wife  of  her  separate  property  when  no  other 
trustee  has  been  appointed,  applies  to  that  which 
becomes  her  separate  property  by  virtue  of  a 
marriage  contract  entered  into  in  a  foreign 
country.  When,  therefore,  such  property  is  in 
the  possession  of  a  husband  at  the  commence- 
ment of  his  bankruptcy  it  does  not  pass  to  his 
trustee.  Sibeth,  Ex  parte,  Sibeth,  In  re,  14 
Q.  B.  D.  417  ;  54  L.  J.,  Q.  B.  322 ;  33  W.  R.  556 
— C.  A. 

Wife's  Chose  in  Action— Ante-nuptial  Parol 
Agreement  to  8ettle— Gift  by  Husband  to  Wife.] 
— On  a  marriage  it  was  verbally  agreed  between 
the  husband  and  the  wife  that  a  sum  of  money 
standing  to  the  credit  of  the  wife  on  deposit  at 
a  bank  in  her  maiden  name  should  be  her  sepa- 
rate property.  Nothing  further  was  done  ;  but 
after  the  marriage  the  money,  with  the  husband's 
consent,  remained  at  the  bank  in  the  wife's 
maiden  name  ,*  and  she  received  the  interest  on 
it  for  two  years  after  the  marriage,  when  she 
drew  the  money  out  of  the  bank.    The  trustee 


in  the  subsequent  liquidation  of  the  husband 
having  claimed  payment  of  the  money  from  the 
wife  as  part  of  her  husband's  property :— Held, 
that  there  had  been  a  gift  of  the  money  by  the 
husband  to  the  wife  after  the  marriage ;  that  be 
had  become  a  trustee  of  it  for  her  as  her  separate 
property  ;  and  that,  consequently,  it  did  not  pas 
to  the  trustee  in  his  liquidation.  Whitehead, 
Ex  parte.  Whitehead,  In  re,  14  Q.  B.  D.  419 ;  64 
L.  J.,  Q.  B.,  240 ;  52  L.  T.  597  ;  33  W.  R.  471 ; 
49  J.  P.  405— C.  A. 

Loan  for  Specific  Purpose — Bankruptcy  of 
Borrower.] — Where  money  is  advanced  by  way 
of  loan  for  the  purpose  of  being  applied  for  a 
specific  purpose  and  upon  the  undertaking  of  the 
borrower  so  to  apply  it,  a  duty  is  cast  upon  the 
borrower  which  places  him  in  the  position  of  a 
trustee  of  the  money  advanced,  and  in  the  event 
of  the  bankruptcy  of  the  borrower  before  the 
undertaking  has  been  fulfilled  the  lender  is 
entitled  to  follow  and  recover  the  money  in  the 
same  manner  as  if  it  had  been  in  terms  a  trust 
fund.  Gibert  v.  Qonard.  54  L.  J.,  Ch.  439 ;  52 
L.  T.  54  ;  33  W.  R.  302— North,  J. 

Payment  to  Cestui  que  Trust — Terms— Costa.] 

— The  bankrupts  were  stockbrokers  who  had  been 
employed  by  tne  applicant  to  buy  certain  speci6c 
shares  for  him,  and  had  received  payment  for 
the  same.  These  shares,  with  others,  were 
deposited  by  the  bankrupts  with  B.  k  Co.,  as 
security  for  an  advance.  When  the  bankruptcy 
became  known  B.  &  Co.  sold  the  shares,  reim- 
bursed themselves,  and  handed  over  the  balance 
to  the  trustee.  Upon  the  applicants  sending  in 
a  claim  for  the  balance  another  claimant 
retired  : — Held,  that  the  money  might  be  paid 
over  to  the  applicant  on  the  terms  that  his 
solicitor  would  give  a  personal  undertaking  to 
repay  so  much  as  the  court  might  order  at  any 
time  within  three  years.  Held,  also,  that  the 
costs  of  the  applicant  must  be  borne  by  him, 
since  it  would  be  unjust  that  the  expense  of  en- 
forcing his  claim  should  be  borne  by  the  general 
body  of  the  creditors.  Rankart,  Ex  parte, 
Blakcway,  In  re,  62  L.  T.  630— Cave,  J. 


e.  Salary  and  Income. 

"Salary" — Service  Terminable  by  Notice- 
Commercial  Traveller.] — A.  was  employed  as  a 
commercial  traveller  at  a  salary  of  1001.  a  year, 
terminable  by  a  week's  notice.  A.  became  bank- 
rupt, and  the  county  court  judge  ordered  him 
to  pay  20Z.  every  year  out  of  such  salary  to  his 
trustee  in  bankruptcy  according  to  the  provisions 
of  the  Bankruptcy  Act,  1883,  s.  53,  sub-s.  2  :— 
Held,  that  A.  received  a  "  salary  "  within  the 
meaning  of  the  section,  and  that  the  order  was 
right.  Brindle,  Ex  parte,  Brindle,  In  re,  or 
Brindley,  Ex  parte,  Brindley,  In  re,  56  L.  T. 
498  ;  35  W.  R.  596  ;  4  M.  B.  R.  104— D. 

' '  Income  " — Voluntary  Allowance  —  Retired 
Officer  of  Indian  Army.] — A  voluntary  allow- 
ance  granted  by  the  Secretary  of  State  for  India 
to  an  officer  of  the  Indian  army  on  compulsory 
retirement,  to  which  the  recipient  has  no  claim 
or  right,  and  which  can  be  withdrawn  at  any 
time  at  the  discretion  of  the  Secretary  of  State, 
is  not  "  income "  within  the  meaning  of  the 
Bankruptcy  Act,  1883  (46  &  47  Vict  c.  52),  a.  53, 


187 


BANKKUPTCY— Property. 


138 


258 ;  55  L.  J.,Q.  B.  369  ;  54  L.  T.  632  ;  34  W.  R. 
539 ;  3  M.  B.  R.  118— C.  A. 

The  provisions  of  s.  27  of  the  Bankruptcy  Act, 
1883,  do  not  apply  to  an  administration  of  the 
estate  of  a  person  dying  insolvent  under  a.  125 
of  the  act.  There  is  no  power  in  cases  of  such 
administration,  either  under  s.  27  or  under  r.  58 
(Bankruptcy  Rules,  1883),  to  summon  a  person 
to  he  examined  for  the  purpose  of  discovery  of 
the  deceased  debtor's  estate.  Hewitt,  Ex  parte •, 
Hewitt,  In  re,  15  Q.  B.  D.  159 ;  54  L.  J.,  Q.  B. 
402;  53  L.  T.  156 ;  2  M.  B.  R.  184— D. 

Examination  of  Trustee — Hotioe.] — Where  an 
application  is  made  under  8.  27  of  the  Bank- 
ruptcy Act,  1883,  for  the  examination  of  a  trus- 
tee in  bankruptcy,  it  would  seem  that  notice  of 
such  application  should  be  served  on  the  trustee. 
£rr«w,  Ex  parte,  Whicker,  In  re,  5  M.  B.  R. 
173-D. 

Against  whom  Order  granted.] — The  property 
of  the  bankrupt  was  sold  by  the  trustee  to  the 
bankrupt's  brother  for  a  sum  sufficient  to  pay  in 
full  all  the  creditors  whose  names  were  set  out 
in  the  statement  of  affairs.  After  the  assets  had 
been  distributed,  the  fact  of  the  bankruptcy  was 
ascertained  by  a  creditor  whose  name  had  been 
omitted  from  the  statement,  and  it  being  ad- 
mitted that  a  better  price  might  probably  have 
been  obtained  for  the  property  than  had  actually 
been  realised,  an  application  was  made  by  the 
creditor  under  s.  27  of  the  Bankruptcy  Act,  1883, 
for  an  order  for  the  examination  of  the  trustee, 
the  bankrupt,  and  his  brother : — Held,  that  the 
creditor  was  entitled  to  make  such  an  applica- 
tion, and  that  the  order  ought  to  be  made  as 
against  the  bankrupt  and  his  brother,  but  that 
in  the  absence  of  evidence  of  mala  fides  or  col- 
lusion there  was  nothing  to  justify  the  court  in 
making  an  order  against  the  trustee.    lb. 

Serosal  of  Witness  to  Answer.]— When  a 
witness  is  summoned,  under  s.  27  of  the  Bank- 
ruptcy Act,  1883,  for  examination  concerning 
the  debtor's  dealings  or  property,  the  judge  is 
not  bound  to  accept  at  once  as  conclusive  the 
denial  of  the  witness  that  he  has  dealt  with  such 
property,  but  the  witness  may  be  further  ques- 
tioned in  order  to  test  his  credibility.  Purvis, 
In  re  (36  L.  T.  679),  explained.  TiUy,  Exparte, 
Sekarrer,  In  re,  20  Q.  B.  D.  518  ;  59  L,  T.  188  ; 
36  W.  R.  388 ;  5  M.  B.  R.  79— C,  A. 

Serosal  to  produce  Letter-book.] — A  witness 
was  examined  under  this  sect.  27  of  the  Bank- 
ruptcy Act,  1883,  before  the  registrar,  and  pro- 
duced certain  letters  torn  from  a  letter-book  in 
jus  possession,  but  refused  to  produce  the  book 
itself,  as  he  swore  that  it  contained  no  letters 
relating  to  the  debtor,  his  dealings  or  his  pro- 
perty, other  than  those  produced.  On  an  appli- 
cation being  made  to  commit  the  witness  under 
rale  88  (Bankruptcy  Rules,  1883)  :— Held,  that 
the  witness's  answer  must  be  accepted,  as  the 
object  of  the  section  was  not  to  enable  a  trustee 
by  cross-examination  to  make  out  a  case.  Rooke, 
Bt  parte,  Purvis,  In  re,  56  L.  T.  579 — Cave,  J. 

Application  by  Friendly  Creditor— Abuse  of 
rroeen  of  Court.]— The  court  will  not  allow  its 
process  to  be  used  to  do  indirectly  that  which 
the  process  of  the  court  will  not  allow  to  be 
done  directly .    Where  therefore  an  application 


was  made  by  a  friendly  creditor  for  discovery  of 
documents,  nominally  for  the  purpose  of  carry- 
ing out  proceedings  to  expunge  a  proof,  but  in 
reality  for  the  purpose  of  reopening,  after  the 
time  for  appeal  had  elapsed,  the  question  as  to 
whether  the  receiving  order  had  been  properly 
made  against  the  bankrupt  or  not : — Held,  that 
the  application  was  an  attempt  by  the  contriv- 
ance of  the  creditor  and  the  bankrupt,  in  the 
interest  of  the  bankrupt,  to  use  the  process  of 
the  court  to  do  that  which,  if  the  bankrupt 
himself  asked  the  court,  the  court  would  not 
allow  to  be  done ;  and  that  the  registrar  was 
right  in  refusing  the  application.  Kirk,  Ex 
parte,  Dash  wood,  In  re,  3  M.  B.  R.  257 — C.  A. 

County  Court  Judge— Contempt  of  Court — 
Committal.]— By  the  Bankruptcy  Act,  1869  (32 
&  33  Vict,  c  71),  s.  96  (which  is  substantially 
re-enacted  by  the  Bankruptcy  Act,  1883  (46  & 
47  Vict.  c.  52),  s.  57,  the  court  had  power  under 
certain  circumstances  to  summon  persons  to  at- 
tend and  give  evidence  or  produce  documents, 
and  in  case  of  refusal  to  cause  such  persons  to  be 
apprehended  and  brought  up  for  examination. 
By  s.  66  (which  is  substantially  re-enacted  by 
s.  100  of  the  Act  of  1883)  judges  of  local  courts 
of  bankruptcy  had  for  the  purposes  of  the  act,  in 
addition  to  their  ordinary  powers  as  county  court 
judges,  all  the  powers  and  jurisdiction  of  judges 
of  the  High  Court  of  Chancery,  and  their  orders 
might  be  enforced  accordingly.  A  county  court 
judge  sitting  in  bankruptcy  summoned  a  person 
to  attend  under  s.  96 ;  this  summons  was  dis- 
obeyed, and  the  judge  thereupon  made  an  order 
for  the  committal  of  the  person  so  summoned  : — 
Held,  that  the  remedy  for  disobedience  to  the 
summons  was  not  confined  to  that  prescribed  by 
s.  96,  but  the  judge  had  power,  under  s.  66,  to 
make  the  order  for  committal.  Ilea.  r.  Croydon 
County  Court  Judge,  13  Q.  B.  D.  963  ;  53  L.  J.. 
Q.  B.  545  ;  51  L.  T.  102  ;  33  W.  R.  68— C.  A. 

Protection  of  Property — Injunction — Under- 
taking as  to  Damages.]— H.  A.  advanced  to  J. 
the  sum  of  90/.  upon  a  bill  of  sale  void  under  the 
Bills  of  Sale  Act,  1882,  inasmuch  as  the  whole 
amount  of  interest  was  calculated  in  a  lump  sum 
which  was  to  become  due  and  payable  upon 
failure  in  payment  of  any  instalment.  Default 
was  made  m  the  payment  of  the  second  instal- 
ment, and  H.  A.  entered  into  possession,  where- 
upon H.  N.  A.,  a  son  of  H.  A.,  advanced  a  sum 
or  130/.  in  order  to  pay  off  his  father,  whose 
partner  he  had  recently  become.  Upon  the  debtor 
filing  his  petition  in  bankruptcy,  the  registrar 
granted  an  injunction  restraining  H.  N.  A. 
from  further  proceedings  under  the  second  bill 
of  sale  until  further  order : — Held,  that  the  in- 
junction was  wrong  in  form  and  ought  to  have 
been  until  a  certain  day,  and  to  have  contained 
an  undertaking  as  to  damages.  Abrams,  Ex 
parte,  Johnstone,  In  re,  50  L.  T.  184  ;  1  M.  B. 
R.  32— Cave,  J. 

Application  by  Equitable  Mortgagee  for  a 
Bale— Conduct  of  Sale.] — When  an  equitable 
mortgagee  applies  to  the  court  to  realize  his 
security,  the  conduct  of  the  sale  is  in  the  discre- 
tion of  the  court.  As  a  general  rule,  where  the 
security  is  sufficient,  the  conduct  of  the  sale  will 
be  given  to  the  trustee,  but  where  the  security  is 
insufficient  the  conduct  of  the  sale  will  be  given 
to   the  mortgagee.     In  either  case  the  costs 


185 


BANKRUPTCY— Property. 


186 


h.  In  Other  Cases. 


Power  of  Appointment.]— A  debtor  bad  a 
general  power  of  appointment  by  deed  or  will : — 
Held,  that  his  trustee  in  liquidation  had  no 
power  after  the  death  of  the  debtor  to  appoint 
the  property  the  subject  of  the  power.  Nichols 
to  Xixey,  29  Ch.  D.  1005  ;  65  L.  J.  Ch.  146 ;  52 
L.  T.  803  ;  33  W.  R.  840— Pearson,  J. 

Contingent  Interest— Potability — Interest  in 
Policy  of  Assurance  for  benefit  of  Wife.  1—  A 
policy  of  insurance  on  the  life  of  a  husband  for 
the  benefit  of  his  wife  was,  in  1876,  effected  with 
an  insurance  company  which  carried  on  business 
at  New  York,  through  their  branch  office  in 
London.  The  application  of  the  policy  was  made 
by  him  on  behalf  of  his  wife.  The  premiums 
were  made  payable  in  London.  By  the  policy 
the  company  promised  to  pay  the  amount  assured 
to  the  wife  for  her  sole  use,  if  living,  and,  if  she 
were  not  living,  to  the  children  of  the  husband, 
or,  if  there  should  be  no  such  children,  to  the 
executors  or  assigns  of  the  husband,  at  the  Lon- 
don office.  The  policy  also  provided  that,  on 
the  completion  of  a  period  of  ten  years  from  its 
issue,  provided  it  should  not  have  been  previously 
terminated  by  lapse  or  death,  the  legal  owner 
should  have  the  option  of  withdrawing  the 
accumulated  reserve  and  surplus  appropriated  by 
the  company  to  the  policy.  The  husband  paid 
the  premiums  until  July,  1883,  when  he  filed  a 
liquidation  petition  under  the  Bankruptcy  Act, 
1869.  In  1884  he  obtained  his  discharge.  After 
1883  the  wife  paid  the  premiums  out  of  her 
separate  estate.  In  1886  the  wife  exercised  the 
right  of  withdrawal,  and  the  company  paid 
29592.  in  respect  of  the  policy: — Held,  that, 
even  %if  the  sum  thus  paid  did  not  by  virtue  of 
the  policy  belong  to  the  wife  for  her  separate 
use.  the  husband's  contingent  interest  in  it  at  the 
time  when  he  obtained  his  discharge  was  a  mere 
possibility,  and  that,  consequently,  it  did  not 
pass  to  the  trustee  in  the  liquidation.  Dcver, 
Ex  parte,  Sums,  In  re,  18  Q.  B.  D.  660  ;  56  L.  J., 
Q.  B.  562— C.  A. 

Title  Deeds — Bankrupt's  Wife  Tenant  for 
life.] — Under  the  will  of  her  father,  the  wife 
of  a  bankrupt  was  tenant  for  life  of  some 
land,  though  not  for  her  separate  use.  The 
trustee  in  bankruptcy  of  the  husband  applied  to 
the  court  to  order  the  title  deeds  of  the  property, 
which  were  in  the  custody  of  the  registrar  by 
order  of  the  county  court  judge,  to  be  delivered 
up  to  him  in  order  that  he  might  sell  the  life 
interest,  and  hand  over  the  deeds  to  the  purchaser. 
It  appeared  that  the  wife  was  about  to  apply  to 
the  Divorce  Court  for  a  divorce  : — Held,  that  the 
trustee  had  no  absolute  right  to  the  deeds,  and 
the  court  having  a  discretion  in  the  matter,  under 
the  circumstances  ordered  the  deeds  to  remain  in 
court.  Rogers,  Ex  parte,  Pyatt,  In  re,  26  Ch.  D. 
31 ;  53  L.  J.,  Ch.  936  ;  61  L.  T.  177  :  32  W.  R. 
737— C.  A. 

Assignment  of  Book  Debts  carries  the  Books.] 
— An  assignment  of  the  book  debts  of  a  debtor 
will  carry  the  books,  so  that  the  person  entitled 
to  the  book  debts  under  the  deed  is  entitled  to 
the  books  of  account :  rule  259  of  the  Bankruptcy 
Rules,  1883,  only  applies  to  the  case  of  a  person 
not  entitled  to  the  books  setting  up  a  claim  to 


them.     Official  Receiver,  Ex  parte,  White,  1%  re, 
1M.B.B.  77— Cave,  J. 

Bight  to  "Books  of  Account"]— The  259th 
rule  of  the  Bankruptcy  Rules,  1883,  which  pro- 
vides that "  no  person  shall, as  against  the  official 
receiver  or  trustee,  be  entitled  to  withhold  posses- 
sion of  the  books  of  accounts  belonging  to  the 
debtor,  or  to  set  up  any  lien  thereon,"  is  to  be 
construed  strictly,  and  will  not  be  extended  to 
vouchers,  counterfoils  of  cheques,  books,  corre- 
spondence, and  other  papers,  in  the  hands  of 
another  person,  although  such  documents  would 
be  of  material  assistance  to  the  trustee  in  prepar- 
ing his  accounts  of  the  bankrupt's  estate.  God- 
frey, Ex  parte,  Winslow,  In  re,  16  Q.  B.  D.  696 ; 
55  L.  J.,  Q.  B.  238  ;  54  L.  T.  306  ;  34  W.  B.534 ; 
3  M.  B.  R.  60— Cave,  J. 


Trustee  under  Deed  of  Assignment— Honeys 
and  Property  received.] — The  bankrupts  had 
executed  a  deed  of  assignment  to  F.  of  the  whole 
of  their  property  for  the  benefit  of  creditors. 
The  deed  contained  a  provision  for  the  payment 
in  the  first  instance  out  of  assets  of  the  costs  and 
expenses  of  F.  The  petition  was  founded  on 
the  deed  as  an  act  of  bankruptcy,  and  when  the 
trustee  in  bankruptcy  applied  to  F.  for  payment 
to  him  of  assets  in  his  hands,  F.  claimed  to 
retain  them  against  a  larger  sum  due  to  him  for 
expenses  of  work  and  labour  done  by  him  :— 
Held,  that  the  only  right  of  F.  was  to  prove  for 
his  claim,  and  the  court,  on  motion,  ordered  him 
to  pay  to  the  trustee  the  assets  in  his  hands. 
Official  Receiver,  Ex  parte,  Richards,  In  re,  32 
W.  R.  1001 ;  1  M.  B.  R.  242— Wills,  J. 

When  a  debtor  executes  a  general  assignment 
for  the  benefit  of  creditors,  and  the  trustee  carries 
on  the  business  under  the  deed,  receiving  and 
making  payments  until  a  receiving  order  is  made 
in  bankruptcy  on  the  petition  of  certain  creditors 
who  have  not  signed  the  deed,  and  whose  peti- 
tion is  founded  on  the  general  assignment  as  an 
act  of  bankruptcy,  the  official  receiver  is  entitled 
to  delivery  up  of  the  property  in  the  possession 
of  the  trustee  under  the  deed,  and  an  account 
from  him  of  the  value  of  the  property  of  the 
debtor,  of  which  he  took  possession  and  which  he 
has  converted,  ie.,  an  account  treating  him  as  a 
trespasser,  or  he  may  adopt  his  actions  and  have 
an  account  treating  the  trustee  as  his  agent. 
Vaughan,  Ex  parte,  Riddeongh,  In  re,  14 
Q.  B.  D.  25  ;  33  W.  R.  151  ;  1M.B.R.  258-D. 


2.  PROCEEDINGS  FOR  DISCOVERY  AND 
PROTECTION  OF  PROPERTY. 

Power  to  summon  Witnesses — In  what  Cases,] 
—The  Bankruptcy  Act,  1883  (46  k  47  Vict 
c,  52),  s.  27 — which  enables  the  court  on  the 
application  of  the  trustee  to  summon  before  it 
for  examination  the  debtor  or  his  wife,  or  any 
person  known  or  suspected  to  have  in  his  pos- 
session any  of  the  estate  or  effects  belonging  to 
the  debtor,  or  supposed  to  be  indebted  to  the 
debtor,  or  any  person  whom  the  court  may  deem 
capable  of  giving  information  respecting  the 
debtor,  his  dealings  or  property,  &c— does  not 
apply  to  the  trustee  under  a  composition  or 
scheme  of  arrangement  which  has  been  duly 
approved  by  the  court  under  s.  18  of  the  act. 
Whinney,  Ex  parte,  Grant,  In  re,  17  Q.  B.  D. 


187 


BANKKUPTCY— Property. 


188 


S3;  55  L.  J..Q.  B.  369  ;  54  L.  T.  632  ;  34  W.  R. 

«9;3H.B.  R.118— C.  A. 
The  provisions  of  s.  27  of  the  Bankruptcy  Act, 

1883,  do  not  apply  to  an  administration  of  the 

estate  of  a  person  dying  insolvent  under  s.  125 
of  the  act.  There  is  no  power  in  cases  of  such 
administration,  either  under  s.  27  or  nnder  r.  58 
(Bankruptcy  Bales,  1883),  to  summon  a  person 
to  be  examined  for  the  purpose  of  discovery  of 
the  deceased  debtor's  estate.  Hewitt,  Ex  parte, 
Beteitt,  In  re,  15  Q.  B.  D.  159 ;  64  L.  J.,  Q,  B. 
402;  53  L.  T.  156 ;  2  M.  B.  R.  184— D. 

Examination  of  Trustee — Notice.] — Where  an 
application  is  made  under  s.  27  of  the  Bank- 
ruptcy Act,  1883,  for  the  examination  of  a  trus- 
tee in  bankruptcy,  it  would  seem  that  notice  of 
such  application  should  be  served  on  the  trustee. 
Stem*,  Ex  parte,  Whieher,  In  re,  6  M.  B.  R. 
173-D. 

Against  whom  Order  granted.] — The  property 
of  the  bankrupt  was  sold  by  the  trustee  to  the 
bankrupt's  brother  for  a  sum  sufficient  to  pay  in 
fall  all  the  creditors  whose  names  were  set  out 
in  toe  statement  of  affairs.    After  the  assets  had 
been  distributed,  the  met  of  the  bankruptcy  was 
ascertained  by  a  creditor  whose  name  had  been 
omitted  from  the  statement,  and  it  being  ad- 
mitted that  a  better  price  might  probably  have 
been  obtained  for  the  property  than  had  actually 
been  realised,  an  application  was  made  by  the 
creditor  under  s.  27  of  the  Bankruptcy  Act,  1883, 
for  an  order  for  the  examination  of  the  trustee, 
the  bankrupt,  and  his  brother : — Held,  that  the 
creditor  was  entitled  to  make  such  an  applica- 
tion, and  that  the  order  ought  to  be  made  as 
against  the  bankrupt  and  his  brother,  but  that 
in  the  absence  of  evidence  of  mala  fides  or  col- 
lusion there  was  nothing  to  justify  the  court  in 
making  an  order  against  the  trustee.    lb. 

Befusal  of  Witness  to  Answer.]— When  a 
witness  is  summoned,  under  s.  27  of  the  Bank- 
ruptcy Act,  1883,  for  examination  concerning 
the  debtor's  dealings  or  property,  the  judge  is 
not  bound  to  accept  at  once  as  conclusive  the 
denial  of  the  witness  that  he  has  dealt  with  such 
property,  but  the  witness  may  be  further  ques- 
tioned in  order  to  test  his  credibility.  Purvis, 
I*  re  (56  I*  T.  579),  explained.  Tilly,  Ex  parte, 
Sekarrer,  In  re,  20  Q.  B.  D.  518  ;  59  L.  T.  188  ; 
36  W.  R.  388  ;  5  M.  B.  R.  79— C.  A. 

Itfisal  to  produce  Letter-book.] — A  witness 
was  examined  nnder  this  sect.  27  of  the  Bank- 
ruptcy Act,  1883,  before  the  registrar,  and  pro- 
duced certain  letters  torn  from  a  letter-book  in 
bis  possession,  but  refused  to  produce  the  book 
itself,  as  he  swore  that  it  contained  no  letters 
relating  to  the  debtor,  his  dealings  or  his  pro- 
perty, other  than  those  produced.  On  an  appli- 
cation being  made  to  commit  the  witness  under 
role  88  (Bankruptcy  Rules,  1883)  :— Held,  that 
the  witness's  answer  must  be  accepted,  as  the 
object  of  the  section  was  not  to  enable  a  trustee 
by  cross-examination  to  make  out  a  case.  Roohe, 
&*  parte,  Purvis,  In  re,  56  L.  T.  579— Cave,  J. 

Application  by  Friendly  Creditor— Abuse  of 
toeets  of  Court.] — The  court  will  not  allow  its 
Process  to  be  used  to  do  indirectly  that  which 
the  process  of  the  court  will  not  allow  to  be 
*»e  directly.    Where  therefore  an  application 


was  made  by  a  friendly  creditor  for  discovery  of 
documents,  nominally  for  the  purpose  of  carry- 
ing out  proceedings  to  expunge  a  proof,  but  in 
reality  for  the  purpose  of  reopening,  after  the 
time  for  appeal  had  elapsed,  the  question  as  to 
whether  the  receiving  order  had  been  properly 
made  against  the  bankrupt  or  not : — Held,  that 
the  application  was  an  attempt  by  the  contriv- 
ance of  the  creditor  and  the  bankrupt,  in  the 
interest  of  the  bankrupt,  to  use  the  process  of 
the  court  to  do  that  which,  if  the  bankrupt 
himself  asked  the  court,  the  court  would  not 
allow  to  be  done ;  and  that  the  registrar  was 
right  in  refusing  the  application.  Kirk,  Ex 
parte,  Dash  wood,  In  re,  8  M.  B.  R.  257 — 0.  A. 

County  Court  Judge — Contempt  of  Court — 
Committal.]— By  the  Bankruptcy  Act,  1869  (32 
&  33  Vict.  c.  71),  s.  96  (which  is  substantially 
re-enacted  by  the  Bankruptcy  Act,  1883  (46  & 
47  Vict.  c.  52),  s.  57,  the  court  had  power  under 
certain  circumstances  to  summon  persons  to  at- 
tend and  give  evidence  or  produce  documents, 
and  in  case  of  refusal  to  cause  such  persons  to  be 
apprehended  and  brought  up  for  examination. 
By  s.  66  (which  is  substantially  re-enacted  by 
s.  100  of  the  Act  of  1883)  judges  of  local  courts 
of  bankruptcy  had  for  the  purposes  of  the  act,  in 
addition  to  their  ordinary  powers  as  county  court 
judges,  all  the  powers  and  jurisdiction  of  judges 
of  the  High  Court  of  Chancery,  and  their  orders 
might  be  enforced  accordingly.  A  county  court 
judge  sitting  in  bankruptcy  summoned  a  person 
to  attend  under  s.  96 ;  this  summons  was  dis- 
obeyed, and  the  judge  thereupon  made  an  order 
for  the  committal  of  the  person  so  summoned  : — 
Held,  that  the  remedy  for  disobedience  to  the 
summons  was  not  confined  to  that  prescribed  by 
s.  96,  but  the  judge  had  power,  under  s.  66,  to 
make  the  order  for  committal.  Peg.  v.  Croydon 
County  Court  Judge,  13  Q.  B.  D.  963  ;  53  L.  J., 
Q.  B.  545  ;  51  L.  T.  102  ;  33  W.  R.  68— C.  A. 

Protection  of  Property — Injunction — Under- 
taking as  to  Damages.]— H.  A.  advanced  to  J. 
the  sum  of  90/.  upon  a  bill  of  sale  void  under  the 
Bills  of  Sale  Act,  1882,  inasmuch  as  the  whole 
amount  of  interest  was  calculated  in  a  lump  sum 
which  was  to  become  due  and  payable  upon 
failure  in  payment  of  any  instalment.  Default 
was  made  in  the  payment  of  the  second  instal- 
ment, and  H.  A.  entered  into  possession,  where- 
upon H.  N.  A.,  a  son  of  H.  A.,  advanced  a  sum 
of  130Z.  in  order  to  pay  off  his  father,  whose 
partner  he  had  recently  become.  Upon  the  debtor 
filing  his  petition  in  bankruptcy,  the  registrar 
granted  an  injunction  restraining  H.  N.  A. 
from  further  proceedings  under  the  second  bill 
of  sale  until  further  order : — Held,  that  the  in- 
junction was  wrong  in  form  and  ought  to  have 
been  until  a  certain  day,  and  to  have  contained 
an  undertaking  as  to  damages.  Abrams,  Ex 
parte,  Johnstone,  In  re,  50  L.  T.  184  ;  1  M.  B. 
R.32— Cave,  J. 

Application  by  Equitable  Mortgagee  for  a 
Sale — Conduct  of  Bale.] — When  an  equitable 
mortgagee  applies  to  the  court  to  realize  his 
security,  the  conduct  of  the  sale  is  in  the  discre- 
tion of  the  court.  As  a  general  rule,  where  the 
security  is  sufficient,  the  conduct  of  the  sale  will 
be  given  to  the  trustee,  but  where  the  security  is 
insufficient  the  conduct  of  the  sale  will  be  given 
to   the  mortgagee.     In  either  case  the  costs 


189 


BANKRUPTCY— Proof  of  Debts. 


140 


charges,  and  expenses  of  the  trustee,  properly 
incurred,  will  be  a  first  charge  upon  the  pro- 
ceeds of  sale.  Harrison,  Ex  parte,  Jordan,  In 
re,  13  Q.  B.  D.  228  ;  53  L.  J.,  Q.  B.  654  ;  50  L.  T. 
594  ;  33  W.  B.  153  ;  1  M.  B.  R.  51— Cave,  J. 

Majority  of  Creditors  opposed  to  litigation — 
Proceedings  by  Minority  to  set  aside  Settle- 
ment. ] — When  a  minority  of  the  creditors  of  a 
bankrupt  are  dissatisfied  with  the  refusal  of  the 
trustee  to  take  proceedings  to  recover  property 
alleged  to  be  part  of  the  bankrupt's  estate,  and 
desire  to  institute  such  proceedings  themselves, 
they  must,  in  the  first  instance,  apply  to  the 
trustee  for  leave  to  use  his  name,  and  offer  him 
a  proper  indemnity.  If  he  refuses,  they  are 
entitled  to  apply  to  the  court  for  leave  to  use 
the  name  of  the  trustee  on  giving  him  an  in- 
demnity against  costs.  Kearsley,  Ex  parte, 
Qene.se,  In  re,  17  Q.  B.  D.  1  ;  55  L.  J.,  Q.  B.  325  ; 
34  W.  R.  474 ;  3  M.  B.  R.  57— Cave,  J. 

Debtor  Retaining  Possession  of  Premises 
— Committal. J  —Where  a  debtor  refused  to 
deliver  up  possession  of  the  premises  occupied  by 
him  at  the  request  of  the  trustee  in  bankruptcy, 
the  court  made  an  order  for  his  committal  for 
contempt.  Trustee,  Ex  parte,  Cox,  In  re,  2  M. 
B.  R.  23— Field,  J. 


IX.  PROOF  OF  DEBTS. 

1.  Debts  entitled  to  Priority. 

2.  In  respect  of  what  Debts. 

3.  By  and  against  Particular  Persons. 

4.  Practice  on  Proof. 

5.  Expunging  Proof. 

6.  Rejection  of  Proof 

1.  DEBTS  ENTITLED  TO  PRIORITY. 

Wages— "Workman,"  who  is— Piecework.]— 
H.,  who  acted  for  the  bankrupt  as  general  fore- 
man and  overlooker  of  a  brickyard  in  which  he 
also  worked,  in  the  place  of  a  weekly  wage 
undertook  the  manufacture  of  bricks  by  piece- 
work, and  to  be  paid  so  much  per  thousand 
for  the  bricks  produced.  For  this  purpose  he 
continued  to  employ  the  men  who  had  been 
working  for  the  bankrupt  at  the  same  rate  of 
wages,  other  persons  being  engaged  and  paid 
separately  by  the  bankrupt  to  do  part  of 
the  work.  ^  He  also  continued  exclusively 
in  the  service  of  the  bankrupt,  and  to  act  as 
general  manager  of  the  brickworks.  He  was 
liable  to  be  discharged  at  a  week's  notice  by  the 
bankrupt,  who  had  the  right  to  discharge  and 
engage  all  men  working  under  H.,  and  to  make 
alterations  in  the  rate  paid  per  thousand  for  the 
bricks  :— Held,  that  the  position  occupied  by  H. 
was  that  of  a  workman  within  the  meaning  of 
a  40,  8ub-8.  1  (c),  of  the  Bankruptcy  Act,  1883, 
and  not  that  of  a  contractor ;  and  that  he  was 
entitled  in  priority  under  that  section  to  the 
wages  due  to  him  in  respect  of  services  rendered 
to  the  bankrupt  before  the  date  of  the  receiving 
order.  Holly  oak,  Ex  parte,  Field,  In  re,  35  W. 
R.  396 ;  4  M.  B.  R.  63— Cave,  J. 

Computation   of  Time— "Pour   months 

before   date   of  Receiving   Order."]  — In   the 
Bankruptcy  Act,  1883  (46  &  47  Vict  c.  52), 


s.  40,  sub-s.  1  (b) — which  directs  that  the  wages 
or  salary  of  any  clerk  or  servant  in  respect  of 
services  rendered  to  the  bankrupt  during  four 
months  before  the  date  of  the  receiving  order, 
not  exceeding  502.,  shall  be  paid  in  priority  to 
all  other  debts — the  four  months  are  those 
"  next "  before  the  date  of  the  receiving  order ; 
and  where  an  interim  receiver  has  been  ap- 
pointed, the  four  months  are  to  be  computed 
from  the  date  of  the  order  appointing  the 
interim  receiver.  Fox,  Ex  parte,  Smith,  In  rt, 
17  Q.  B.  D.  4  ;  55  L.  J.,  Q.  B.  288  ;  54  L.T.307; 
34  W.  R.  535  ;  3M.B.B.  63— Cave,  J. 


Deductions   to   pay   Doctor.]  —  By  an 


arrangement  between  employers  and  their 
workmen  certain  deductions  were  made  from 
the  workmen's  wages  (which  were  paid 
monthly)  for  a  "doctor's  fund"  which  was 
established  for  the  purpose  of  paying  a  doctor, 
who  attended  the  workmen  and  their  families 
and  supplied  them  with  medicines  in  case  of 
illness.  The  sums  thus  deducted  were  handed 
over  by  the  employers  to  the  doctor  from  time 
to  time.  There  was  no  contract  in  writing 
between  the  employers  and  the  workmen 
authorizing  the  employers  to  make  the  deduc- 
tions, nor  was  there  any  evidence  that  the 
doctor  had  accepted  the  liability  of  the  em- 
ployers. The  employers  filed  a  liquidation 
petition,  and  at  this  time  there  stood  to  the 
credit  of  the  M  doctor's  fund,"  in  their  books,  a 
sum  of  1491.,  which  had  arisen  from  deductions 
thus  made  from  the  workmen's  wages,  and  had 
not  yet  been  paid  over  to  the  doctor: — Held, 
that  there  had  been  no  valid  payment  (within 
the  Truck  Act)  of  the  149Z.  to  the  workmen,  and 
that  they  were  entitled  to  be  paid  the  149Z.in 
full  out  of  the  employers'  estate  as  unpaid 
wages.  Cooper,  Ex  parte,  Morris,  In  re,  26 
Ch.  D.  693  ;  51  L.  T.  374—0.  A. 

Whether,  if  the  149/.  had  been,  in  pursuance 
of  the  arrangement,  actually  paid  over  by  the 
employers  to  the  doctor,  in  discbarge  of  a  debt 
for  which  the  workmen  were  liable,  or  if  the 
doctor  had  accepted  the  liability  of  the  em- 
ployers, the  Truck  Act  would,  notwithstanding 
the  absence  of  a  contract  in  writing  signed  by 
the  workmen,  have  applied— Quaere.    lb. 

Local  Rate.]— On  12th  Jan.,  1887,  at  the 
time  of  filing  his  petition  the  bankrupt  was 
tenant  of  a  house  under  a  lease  for  twenty-one 
years.  The  trustee  in  bankruptcy  did  not  dis- 
claim, but  on  the  1st  Feb.,  1887,  he  sold  his 
interest  in  the  lease,  the  bankrupt  remaining  in 
occupation  as  tenant  under  the  purchaser.  There 
was  due  from  the  bankrupt  at  the  date  of  the 
receiving  order,  a  local  board  rate  made  on  8th 
October,  1886,  for  the  half  year  from  the  30th 
September,  1886,  to  25th  March,  1887,  and  pay- 
able in  advance : — Held,  that  the  estate  of  the 
bankrupt  was  liable  to  pay  the  rate  for  the 
whole  half-year.  Ystradfodtog  Local  Beard, 
Ex  parte.  Thomas,  In  re,  67  L.  J.,  Q.  B.  39 ; 
58  L.  T.  113  ;  36  W.  R.  143  ;  4  M.  B.  B.  295- 
Cave,  J. 

Apprenticeship  Premium— Application  to  whom 
made.] — An  application  under  s.  41  of  the  Bank- 
ruptcy Act,  1883,  for  the  return  of  an  apprentice- 
ship premium  paid  to  the  bankrupt  as  a  fee 
ought  to  be  made  to  the  registrar  and  not 
to    the  judge   in   court      Gould,   Ex  parte, 


141 

EkUfdum,  In  re, 
47-Cfcfe,  J. 


BANKRUPTCY— Proof  of  Debts. 


142 


35  W.  R.  381 ;  4  M.  B.  R. 


2.  IN  RESPECT  OF  WHAT  DEBTS. 

Cslls-Unsjeertained    Liability.]— The    lia- 
bility in    respect    of    calls   of  a    liquidating 
member  of  a  company  where  the  liquidation  pro- 
ceedings commenced  prior  to  the  winding-up  of 
the  company,  and  are  pending  at  the  time  of  the 
winding-up,  is  a  debt  or  liability  which  is  not 
"incapable   of   being   fairly    estimated,"    and 
which  is  therefore  provable  in  the  liquidation. 
When,  therefore,  under  those  circumstances,  a 
company  in  the  course  of  winding-up  has  failed 
to  carry  in  a  proof  for  calls  in  the  liquidation  pro- 
ceedings of  a  member  of  the  company,  and  the 
liquidating  member  obtains  his  discharge,  he  can- 
not afterwards  be  placed  on  the  list  of  contribu- 
tories.  Furdoonjee* tease  (3  Ch.  D.  264)  discussed 
and  not  followed.    Mercantile  Mutual  Marine 
Insurance  Association*  In  re,  Jenkin's  case,  25 
Ch.  D.  415  ;  53  L.  J.,  Ch.  593  ;  50  L.  T.  150  ;  32 
W.B.360— Chitty,J. 

Mortgage — Building  Society — Premiums  on 
Aivanco.i— Under  a  mortgage  to  a  building 
society  the  principal  sum  advanced,  together 
with  a  fixed  sum  by  way  of  premium  for  the 
advance  and  interest  on  the  whole  amount  due, 
was  payable  by  monthly  instalments  : — Held, 
that  m  the  liquidation  of  the  mortgagor,  the 
society  was  entitled  to  prove  for  the  whole 
amount  of  the  premium,  and  was  not  restricted 
to  the  proportionate  part  which  had  accrued  due 
at  the  date  of  the  liquidation.  Bath,  Ex  parte, 
Phillips,  In  re,  27  Ch.  D.  609  ;  51  L.  T.  520  ;  32 
W.  H  808— C.  A. 

Ptstponsment  of  Charge  at  request  of  Bank- 
rupt—Implied  Promise  to  indemnify.] — in  order 
to  enable  a  mortgagor  to  obtain  a  further 
advance  from  the  first  mortgagee  on  the  security 
of  the  mortgaged  property,  the  second  mort- 
gagee agreed  to  postpone  his  charge  to  a  then 
existing  third  charge  in  favour  of  the  first 
mortgagee,  and  to  the  fresh  advance.  The  mort- 
gagor became  bankrupt,  and,  when  the  property 
vu  afterwards  sold  by  the  first  mortgagee,  the 
proceeds  of  the  sale  were  insufficient  to  pay  the 
whole  of  the  amount  due  to  him,  though  they 
exceeded  the  amount  of  the  first  mortgage : — 
Held,  that  the  second  mortgagee  was  entitled  to 
prove  in  the  bankruptcy  for  the  amount  which 
he  would  have  received  out  of  the  proceeds  of 
■Je  if  be  bad  not  consented  to  postpone  his 
charge,  on  the  ground  that  the  court  was  entitled 
to  infer  an  implied  promise  by  the  bankrupt  to 
indemnify  the  second  mortgagee  against  any  loss 
which  might  result  from  the  postponement  of 
Discharge.  Ford, Ex  parte,  Ckappell,  In  re, 
16  Q.  B.  D.  305  ;  55  L.  J.,  Q.  B.  406— C.  A. 

Coots— Award — Bankruptcy  before  Award.] — 
An  order  was  made  by  consent  that  all  matters 
in  dispute  in  an  action  should  be  referred,  the 
costs  to  be  in  the  arbitrator's  discretion  ;  during 
the  arbitration  the  defendant  became  bankrupt, 
sad  bis  trustee  wrote  to  the  arbitrator  denying 
that  the  award  would  be  binding  and  revoking 
the  submission.  The  arbitrator  in  his  award 
ordered  the  defendant  to  pay  certain  costs  : — 
Held,  that  the  bankruptcy  did  not  operate  as  a 
revocation  of  the  submission,  and  that  the  trustee 


had  no  power  to  revoke  the  submission,  and  that 
therefore  the  creditor  could  prove  for  his  costs  in 
the  bankruptcy.  Edwards,  Ex  parte,  Smith,  In 
re,  3  M.  B.  R.  179— D. 

Contingent  Liability.] — A  possibility  of 

having  to  pay  costs  is  not  a  debt  provable  in 
bankruptcy,  though  it  may  in  some  cases  be  a 
"contingent  liability."  Semble,  per  Lindley, 
L.  J.,  Vint  v.  Iludspith,  30  Ch.  D.  24  ;  54  L.  J., 
Ch.  844  ;  52  L.  T.  774  ;  33  W.  R.  738— C.  A.  See 
also  Bluck,  Ex  parte,  Blnck,  In  re,  post,  col.  151. 

Covenant  to  Pay  Premiums  on  Policy  of  Assn- 
ranoe — Value  of— Mode  of  Ascertainment.] — 
Where,  in  an  arrangement  matter,  a  creditor 
held  policies  of  insurance  which  the  arranging 
debtor  had  covenanted  to  keep  up  : — Held,  that 
the  value  of  the  creditor's  interest  in  the  covenant 
was  a  sum  which  the  insurance  company  would 
accept  as  a  present  payment,  by  way  of  commu- 
tation of  the  annual  premiums,  to  keep  the 
policies  subsisting.  Bank  of  Ireland,  Ex  parte, 
S.,  In  re,  17  L.  R.,  Ir.  507— Bk. 

Lease— Assignment  of— Liability  of  Assignor 
for  Bent,  Ac.] — The  assignee  of  a  lease  of  certain 
premises  became  bankrupt,  and  rent  being  in 
arrear,  judgment  was  recovered  by  the  landlord 
against  the  assignor  of  the  lease,  who  had  cove- 
nanted to  pay  the  rent.  The  assignor  proved 
against  the  estate  of  the  bankrupt  for  the  amount 
so  paid,  and  also  in  respect  of  his  contingent 
liability  for  the  rent  for  the  remainder  of  the 
term  ;  the  last-mentioned  proof  was  rejected  by 
the  trustee : — Held,  that  the  proof  must  be 
admitted,  and  that  an  estimate  must  be  made 
by  the  trustee  of  the  value  of  the  liability  under 
s.  37,  sub-s.  4  of  the  Bankruptcy  Act,  1883. 
Verdi,  Ex  parte,  Minks,  In  re,  3  M.  B.  R.  218— 
Cave,  J.  See  also  Hardy  v.  Fothergill,  post, 
col.  186. 

Proviso  for  Determination  on  Bankruptcy 

— Proof  by  Lessors.] — When  a  lease  contains  a 
proviso  or  condition:  "that  on  breach  of  any  of 
the  covenants,  such  lease  shall  cease,  determine, 
and  be  void,  to  all  intents  and  purposes  whatso- 
ever," such  words  must  be  construed  to  mean 
void  at  the  election  of  the  lessor.  A  lease  con- 
tained a  proviso  that  if  the  lessee  should 
become  bankrupt  or  insolvent,  the  lease  should 
cease,  determine,  and  be  void.  The  lessee  having 
become  bankrupt,  the  trustee  in  bankruptcy 
rejected  a  proof  put  in  by  the  lessor  founded  on 
such  lease,  upon  the  ground  that  on  the  bank- 
ruptcy, the  lease  became  void  : — Held,  that  such 
rejection  by  the  trustee  was  wrong,  and  the 
proof  must  be  allowed.  Lcathersellers*  Company, 
Ex  parte,  Tickle,  In  re,  3  M.  B.  R.126— Cave,  J. 

Covenant  for  Future  Settlement  of  Money.] 
— Where  by  a  marriage  settlement,  the  settlor 
covenanted  that  he,  during  his  life  or  his  repre- 
sentatives within  twelve  months  after  his  death, 
would  pay  the  sum  of  5,000/.  to  the  trustees  to 
be  held  by  them  on  the  trusts  of  the  settlement, 
and  the  settlor  subsequently  became  bankrupt : — 
Held,  that  a  covenant  for  payment  of  a  sum  of 
money  not  specifically  ear-marked,  was  not 
within  s.  47,  sub-s.  2  of  the  Bankruptcy  Act, 
1883,  as  a  covenant  for  the  future  settlement  of 
money  or  property  in  which  the  settlor  had  no 
interest  at  the  date  of  his  marriage,  but  that  the 
trustees   were  entitled   to  prove   against  the 


148 


BANKRUPTCY— Proof  of  Debts. 


144 


estate.  Bishop,  Ex  parte  (8  L.  R.  Ch.  718), 
followed.  Cooper,  Ex  parte,  Knight.  In  re. 
2  M.  B.  R.  223— D. 

Order  for  Payment  of  Alimony.] — Future 
weekly  or  monthly  payments  of  alimony,  pay- 
able by  a  husband  by  virtue  of  an  order  of  the 
Divorce  Court  made  under  s.  1  of  the  Act  29  & 
30  Yict.  c  32,  are  not  capable  of  valuation,  and 
are  not  a  "  debt  or  liability  "  within  the  meaning 
of  s.  37  of  the  Bankruptcy  Act,  1883.  They 
cannot,  therefore,  be  proved  in  the  bankruptcy 
of  the  husband,  and  he  is,  notwithstanding  his 
bankruptcy,  liable  to  continue  the  payments. 
Linton,  Ex  parte,  Linton,  In  re,  16  Q.  B.  D.  239  ; 
54  L.  J.,  Q.  B.  529  ;  62  L.  T.  782  ;  33  W.  R.  714  : 
49  J.  P.  597  ;2M.fi.  R.  179— C.  A. 

Bill  drawn  abroad  on  Acceptor  in  England- 
Proof  by  Drawer  for  Re-Bxchange.]— Notwith- 
standing the  provisions  of  s.  57  of  the  Bills  of 
Exchange  Act,  1882,  the  drawer  of  a  foreign  bill 
of  exchange  upon  an  acceptor  in  England  is 
entitled,  upon  the  bill  being  dishonoured  and  pro- 
tested, to  recover  from  the  acceptor  damages  in 
the  nature  of  re-exchange,  which  the  drawer  is 
by  the  foreign  law  liable  to  pay  to  the  holder  of 
the  bill.  And,  under  s.  37  of  the  Bankruptcy 
Act,  1883,  the  drawer,  though  he  has  not  paid 
these  damages,  can  prove  in  the  bankruptcy  of 
the  acceptor  in  respect  of  his  contingent  liability 
to  pay  them.  Robarts,  Ex  parte,  Gillespie,  In 
re,  18  Q.  B.  D.  286  ;  56  L.  J.,  Q.  B.  74  ;  66  L.  T. 
699  ;  35  W.  R.  128— C.  A. 

Receiver  in  Administration  Action  against 
Trustee  of  Testator's  Estate.]— In  an  action  to 
administer  a  testator's  estate,  11,000/.  was  found 
due  from  the  two  trustees  of  the  will.  One  of 
the  trustees  having  been  adjudicated  a  bankrupt, 
his  co-trustee  sought  to  prove  for  6,400/.,  part  of 
the  11,000/. ;  and  the  receiver  in  the  admi- 
nistration action  sought  to  prove  for  4,600/.,  the 
balance  of  the  11,000/.  The  bankrupt's  own 
beneficial  share  in  the  testator's  estate  Jwas 
1,600/. : — Held,  that  the  receiver  was  only 
entitled  to  prove  for  the  4,600/.  less  the  1,600/., 
the  bankrupt's  beneficial  share.  Parker,  Ex 
parte,  Cliapman,  In  re,  35  W.  R.  595  ;  4  M.  B.  R. 


3.  BY  AND  AGAINST  PARTICULAR 
PERSONS. 

Bights  of  Parties  to  Deed  of  Assignment.]— 
The  debtor  executed  an  assignment  of  his  pro- 
perty to  a  trustee  for  the  benefit  of  his  creditors. 
The  deed  provided  for  the  distribution  of  the 
assets  by  the  trustee  rateably  among  all  the 
creditors,  and  contained  a  covenant  by  which 
"  in  consideration  of  the  premises,"  the  creditors, 
parties  to  the  deed,  agreed  to  "  release  the  debtor 
from  all  claims  and  demands  "  against  him.  The 
debtor  was  adjudicated  bankrupt  upon  the  peti- 
tion of  a  non-executing  creditor,  the  act  of 
bankruptcy  proceeded  upon  being  the  execution 
of  the  deed :— Held,  that  the  deed  sufficiently 
showed  that  the  release  was  not  intended  to 
bind  the  executing  creditors  in  the  event  of 
bankruptcy,  and   that   they  were  entitled  to 

§rove.     Official  Receiver,  Ex  parte,  Stephenson, 
nre,  20  Q.  B.  D.  540 ;  57  L.  J„  Q.  B.  451 ;  58 
L.  T.  589  j  36  W.  R.  624 ;  5  M.  B.  R.  44— D. 


A  trader  assigned  substantially  the  whole  of 
his  property  to  a  creditor  in  consideration  of  a 
release  by  the  creditor  of  the  debt.  There  was 
a  secret  verbal  agreement  that  the  assignee 
should  pay  the  assignor's  debts,  and  in  pur- 
suance of  this  the  assignee  paid  out  several 
executions  and  also  paid  some  arrears  of  rent 
due  to  the  landlord  of  the  assignor.  On  it  being 
decided  that  the  deed  was  void  as  against  the 
assignor's  trustee  in  bankruptcy : — Held,  that 
the  assignee  was  not  entitled  to  payment  in  foil 
out  of  the  bankrupt's  estate  of  the  sums  which 
he  had  paid  under  the  agreement,  but  that  he 
could  only  prove  for  them  in  the  bankruptcy. 
Chaplin,  Ex  parte,  Sinclair,  In  re,  26  Ch,  D. 
319  ;  53  L.  J.,  Ch.  732  ;  51  L.  T.  345—0.  A. 

Husband  and  Wife— Loan  by  Wife  to  Hus- 
band's Finn.]— By  the  Married  Women's  Pro- 
perty  Act,  1882  (45  &  46  Vict.  c.  76),  s.  3,  any 
money  of  a  wife  lent  by  her  to  her  husband  for 
the  purpose  of  any  trade  or  business  carried  on 
by  him  shall  be  treated  as  assets  of  her  husband's 
estate  in  case  of  his  bankruptcy,  under  reserva- 
tion of  the  wife's  claim  to  a  dividend  as  a 
creditor  for  the  amount  of  such  money  after, 
but  not  before,  all  claims  of  the  other  creditors 
of  the  husband  for  valuable  consideration  in 
money  or  money's  worth  have  been  satisfied  :— 
Held,  that  where  a  wife  lends  her  money  to  a 
trading  partnership,  of  which  her  husband  is  a 
member,  she  is,  notwithstanding  the  section, 
entitled  to  prove,  on  the  bankruptcy  of  the 
partnership,  against  the  joint  estate  in  com- 
petition with  other  creditors.  Nottingham,  Ex 
parte,  Tuff,  In  re,  19  Q.  B.  D.  88 ;  56  L.  J., 
Q.  B.  440 ;  56  L.  T.  573;  35  W.  R.  567 ;  4M.B, 
R.  116— Cave,  J. 

Loan  by  Wife  to  Husband.]— S.  3  of  the 
Married  Women's  Property  Act,  1882  (45  &  46 
Vict.  c.  75),  has  no  application  to  a  loan  by  a 
wife  to  her  husband  for  purposes  unconnected 
with  his  trade  or  business.  Tidswell,  Ex  parte, 
Tidswell,  In  re,  56  L.  J.,  Q.  B.  548 ;  57  L.  T. 
416  ;  35  W.  R.  669  ;  4  M.  B.  B.  219— Cave,  J. 

H.  was  married  to  his  wife  in  1864,  and  she 
subsequently  became  entitled  to  certain  moneys 
under  the  wills  of  her  father  and  grandfather. 
These  moneys  she  lent  to  her  husband  for  the 
purposes  of  his  business,  upon  the  terms  that  he 
would  execute  a  settlement  of  the  moneys  upon 
her,  which  was  done.  Upon  the  bankruptcy  of 
H.  a  proof  was  tendered  upon  the  settlement 
and  rejected :— Held,  that  the  settlement  was 
not  invalidated  by  s.  3  of  the  Married  Women's 
Property  Act,  1882,  since  that  section  was  not 
retrospective  and  could  not  affect  previously 
existing  rights.  Home,  Ex  parte.  Some.  In  re9 
54  L.  T.  301— Cave,  J. 

Wife  in  Husband's  Liquidation— Onus  of 
Proof.]— The  meaning  of  s.  3  of  the  Married 
Women's  Property  Act,  1882,  is  that  where 
money  or  other  estate  of  the  wife  is  lent  or 
entrusted  by  her  to  her  husband  for  the  purpose 
of  any  trade  or  business  carried  on  by  him  or 
otherwise,  she  cannot  prove,  for  the  purpose  of 
voting  only  or  at  all,  until  after  the  other 
creditors  are  satisfied.  The  onus  of  proof  that 
the  money  was  not  lent  for  such  purpose  is  on 
the  wife,  district  Bank  of  London,  Ex  parte, 
Genese,  In  re,  16  Q.  B.  D.  700 ;  65  L.  J.,  Q,  B. 
118  ;  34  W  R.  79— Cave,  J. 


145 


BANKRUPTCY— Proof  of  Debts. 


146 


hum  and  Assignees  —  Mortgage.]  —  The 
bankrupts  were  assignees  of  a  lease;  and  the  trus- 
tees refused  to  admit  a  proof  by  the  lessor,  who 
was  also  mortgagor,  against  their  joint  estate  : — 
Held,  that  privity  of  estate  remained  between 
the  mortgagor  and  the  bankrupts,  and  that  the 
proof  most  be  admitted.  James,  Ex  parte, 
Maiden,  In  re,  55  L.  T.  708— D. 

See,  also,  cases  ante,  coL  142. 

letired  Partner  against  Surviving  Partners — 
Competition  with  Creditors.]— A  devise  of  real 
estate  upon  trust  to  pay  debts  does  not  prevent 
the  operation  of  the  Statute  of  Limitations  when 
the  testator  leaves  no  real  estate  to  support  the 
trust— A.,  B.  and  C,  carried  on  business  in  co- 
partnership. In  1875,  A.  retired  from  the  firm, 
his  share  being  purchased  by  B.  and  C,  the  con- 
tinuing partners.  On  his  retirement,  A.,  at  the 
request  of  J  the  continuing  partners,  paid  certain 
mortgage  debts  of  the  business,  and  took  trans- 
fers to  himself  of  these  mortgage  debts  with  the 
securities  for  the  same,  He  also  at  their  request 
lent  them  money  on  mortgage  of  other  portions 
of  the  partnership  property*  He  died  in  1876. 
R  and  C.  continued  the  business  until  1883, 
when  they  became  bankrupt.  At  this  time  there 
were  cash  creditors  of  the  old  firm  still  unpaid, 
who  carried  in  proofs  against  the  joint  estate  of 

B.  and  C.  The  executors  of  A.  also  carried  in 
t  proof  against  the  separate  estates  of  B.  and  C. 
far  (1)  the  balance  of  the  purchase-money  of  A.'s 
share ;  (2)  the  mortgage  debts  paid  off  by  A.  on 
transfer  to  himself ;  (3)  the  moneys  lent  by  A. 
on  mortgage  after  his  retirement.  This  proof 
was  rejected  by  the  trustee  on  the  ground  that 
to  admit  it  would  infringe  against  the  rule  for- 
bidding a  partner  to  prove  in  competition  with 
Iris  own  creditors : — Held,  that  as  the  debts 
proved  by  the  cash  creditors  were,  as  against  A.'s 
estate,  statute-barred,  the  rule  did  not  apply, 
and  that  the  proof  must  be  admitted.  Smith, 
E*  parte,  Hepburn,  In  re,  14  Q.  B.  D.  394  ;  54 
LJnQ.B.422— Cave,  J. 

The  rule  that  neither  a  partner,  nor  a  retired 
partner,  nor  the  representatives  of  a  deceased 
partner,  can  prove  in  the  bankruptcy  of  the 
continuing  or  surviving  partner  or  partners  in 
competition  with  the  joint  creditors  of  the  firm 
of  which  the  partner,  or  retired  or  deceased 
partner  was  a  member,  has  no  application  unless 
there  has  been  actually  proved  in  the  bankruptcy 
**ae  debt  in  respect  of  which  the  bankrupt  or 
bankrupts  and  the  retired  or  deceased  partner 
were  jointly  liable.  The  mere  possibility  that 
saeh  debts  may  be  proved  in  the  bankruptcy  is 
net  sufficient  to  introduce  the  application  of  the 
rale.  Andrews,  Ex  parte,  WUcoxon,  In  re,  25 
Ch.D.505;  53  L.  J.,  Ch.  411 ;  50  L.  T.  679 ;  32 
W.  R.  650-C.  A. 

Partner  in  one  Firm  the  secret  and  sole  Prin- 
cipal in  another  Firm— Proof  by  one  Firm 
■gtiast  tee  other.] — A.  and  B.  traded  in  partner- 
ship as  A.  fc  Co.  in  England  and  abroad,  A. 
managing  the  home  business  and  B.  the  branch 
abroad.  C.  and  D.  carried  on  business  in  Eng- 
land as  D.  k  Co.  under  an  agreement  by  which 

C.  was  to  be  the  sole  principal  of  D.,  who  was  to 
be  the  manager  of  the  business  at  a  salary  with 
*  (hare  of  profits.  Business  transactions  took 
place  in  England  between  A.  &  Co.  and  D.&  Co., 
and  on  the  bankruptcy  of  both  firms  a  large 
"lance  was  due  to  A.  &  Co.  from  D.  &  Co.    C. 


was  in  mot  the  agent  of  A.,  who  was  the  secret 
and  sole  principal  of  D.,  but  this  was  unknown 
to  B.  and  D.  until  after  the  bankruptcy,  and  D. 
had  held  himself  out  to  A.  &  Co.  and  others  as  a 
principal.  The  trustee  of  A.  &  Co.  tendered  a 
proof  against  the  estate  of  D.  for  the  balance  due 
from  D.  &  Co.  to  A.  &  Co. : — Held,  that  the  proof 
could  not  be  sustained,  for  that,  under  the  cir- 
cumstances, there  was  no  contract  between  D. 
and  A.  that  D.  should  pay  for  the  goods  that  had 
been  supplied.  Gliddon,  Ex  parte,  Wakeham, 
In  re,  13  Q.  B.  D.  43— Cave,  J. 

Against  Separate  Estate  of  Partners — Breach 
of  Trust  by  Firm — Joint  Judgment.] — Where  a 
firm  is  adjudicated  bankrupt  on  a  judgment 
debt  recovered  against  the  firm  jointly,  if  the 
partners  are  also  severally  liable  in  respect  of  the 
same  matter  by  reason,  for  instance,  of  its  arising 
out  of  breach  of  trust,  the  several  liability  of  the 

Eartners  is  not,  solely  by  reason  of  the  creditor 
aving  sued  for  and  obtained  a  joint  judgment, 
merged  in  such  judgment,  so  as  to  preclude  a 
proof  by  the  judgment  creditor  against  tbeir 
respective  separate  estates.  Chandler,  Ex  parte, 
Davison,  In  re,  13  Q.  B.  D.  50  ;  50  L.  T.  635— 
Cave,  J. 


Fraudulent  Pledge  by  Partnership  Firm.  ] 


— A  partnership  firm  wrongfully  pledged  to  their 
bankers,  to  secure  a  debt  of  the  firm,  the  de- 
livery warrants  of  some  brandy  which  had  been 
left  in  their  custody  in  the  ordinary  course  of 
business  by  the  owner.  One  of  the  partners  in 
the  firm  had  no  knowledge  of  the  fraud.  The 
debt  due  by  the  firm  to  the  bankers  was  also 
secured  by  a  separate  guarantee  of  the  innocent 
partner.  The  firm  filed  a  liquidation  petition, 
and  the  bankers  sold  the  brandy,  and  applied  the 
proceeds  of  sale  in  part  payment  of  their  debt. 
The  owner  of  the  brandy  knew  nothing  of  the 
pledge  until  the  stoppage  of  the  firm.  The  sepa- 
rate estate  of  the  innocent  partner  was  sufficient 
to  pay  all  his  separate  creditors  in  full  (including 
the  balance  remaining  due  to  the  bankers),  and 
to  leave  a  surplus  : — Held,  that  the  owner  of  the 
brandy  was  entitled  to  have  the  bankers'  secu- 
rities marshalled,  and,  to  the  extent  of  the  value 
of  the  brandy,  to  have  the  benefit  of  the  gua- 
rantee, and  to  prove  against  the  separate  estate  of 
the  innocent  partner.  Alston,  Ex  parte  (4  L.  B., 
Ch.  168),  followed.  Salting,  Ex  parte,  Stratton, 
In  re,  25  Ch.  D.  148 ;  53  L.  J.,  Ch.  415  j  4d 
L.  T  694  ;  W.  R.  450— C.  A. 


Trust  Money  paid  by  Trustee  to  hie 


own  Firm.] — A  testator  bequeathed  to  trustees, 
for  the  benefit  of  a  person  who  subsequently 
became  insane,  certain  securities  producing 
250Z.  per  annum.  The  trustees,  after  payment 
of  the  expenses  of  the  lunatic,  had  a  balance  in 
hand ;  one  of  the  trustees  paid  in  the  balance  to 
a  bank  in  which  he  was  partner.  The  firm 
became  bankrupt,  and  a  proof  for  the  balance 
was  lodged  by  the  administrator  of  the  lunatic, 
who  was  also  a  trustee  under  the  will,  against 
the  separate  estate  of  the  bankrupt  trustee : — 
Held,  that  proof  against  the  separate  estate 
must  be  admitted,  but  without  prejudice  to  any 
right  which  the  trustee  in  bankruptcy  might 
have  to  claim  contribution  from  the  bankrupt's 
co-trustees.  Main,  Ex  parte,  Ridgway,  In  re, 
3  M.  B.  R.  212— Cave  J. 


147 


BANKRUPTCY— Proof  of  Debts. 


148 


Double  Proof — Breach  of  Trait — Partner- 
ship.]— Trust  funds  were  handed  by  the  trustees 
for  investment  to  a  firm  in  which  one  of  the 
trustees  was  a  partner.  These  funds  were  mis- 
appropriated by  the  firm,  who  subsequently 
became  bankrupt: — Held,  that  the  trustees 
could,  under  Sched.  II.,  r.  18,  prove  for  the 
amount  so  misappropriated  both  against  the 
joint  estate  of  the  firm  and  also  against  the 
separate  estate  of  the  defaulting  trustee.  Shep- 
pard,  Ex  parte,  Parkers,  In  re,  19  Q.  B.  D.  84  ; 
56  L.  J.,  Q.  B.  338  ;  57  L.  T.  198  ;  35  W.  R.  566  ; 
4  M.  B.  R.  135— Cave,  J. 

Joint    and    Several    Contract  —  Part- 


ners.] —  Two  partners  entered  into  a  joint 
and  several  covenant  to  pay  A.  B.  a  certain 
sum.  The  firm  having  become  bankrupt,  A.  B. 
tendered  proof  against  the  joint  estate  as  well  as 
against  the  separate  estates  of  the  partners : — 
Held,  that,  there  being  a  joint  and  several 
liability,  the  creditor  was  entitled  to  prove 
'nst  both  estates,  and  that  it  was  immaterial 
jther  the  money  had  been  advanced  for  the 
purposes  of  the  partnership  or  not.  Stone,  Ex 
parte  (8  L.  E.,  Ch.  914)  commented  on.  Berner, 
Ex  parte,  Laine,  In  ret  56  L.  J.,  Q.  B,  153 ; 
56  L.  T.  170— Cave,  J. 

Against  Firm  by  Secured  Creditor  —  Part- 
nership Debt — Security  on  Separate  Estate.]— 
A  father  and  son  were  partners  in  business. 
The  father  mortgaged  real  estate,  which  was  his 
separate  property,  to  the  bankers  of  the  firm,  to 
secure  the  balance  for  the  time  being  of  the 
current  account  of  the  firm.  Afterwards  he 
contracted  to  sell  the  real  estate,  and  the  bankers 
joined  in  the  conveyance  to  the  purchaser  on  the 
terms  of  an  agreement  that  the  father  should 
deposit  the  purchase-money  with  the  bankers  in 
his  own  name,  at  interest ;  that  the  deposit 
should  be  a  security  to  the  bankers  for  the  debt 
of  the  firm,  but  that,  subject  to  that  security, 
the  deposit  should  remain  the  separate  property 
of  the  father ;  that,  until  payment  of  the  debt 
of  the  firm,  the  father  should  not  be  entitled  to 
withdraw  any  part  of  the  deposit,  but,  until 
demand  by  the  bankers  for  payment  of  the 
debt,  he  should  be  at  liberty  to  draw  out  half- 
yearly  the  interest  on  the  deposit ;  and  that,  in 
case  demand  should  be  made  by  the  bankers  for 
payment,  they  might,  at  any  time  after  the 
expiration  of  twelve  months  from  the  making  of 
the  demand,  but  not  sooner,  apply  the  deposit, 
and  the  interest  thereon  from  the  time  of  making 
the  demand,  in  or  towards  the  payment  of  the 
debt  of  the  firm.  The  father  also  entered  into  a 
covenant  for  payment  of  the  debt  of  the  firm. 
This  arrangement  was  carried  out : — Held,  that, 
the  arrangement  being  a  bona  fide  one  for  the 
purpose  of  giving  a  security  to  the  bankers,  in 
substitution  for  their  security  on  the  real  estate, 
the  bankers  could  prove  in  the  liquidation  of  the 
father  and  son  against  the  joint  estate  for  the 
full  amount  of  their  debt,  without  deducting  the 
amount  of  the  deposit,  and  that  no  set-off  arose 
by  virtue  of  s.  39  of  the  Bankruptcy  Act,  1869. 
Caldicott,  Ex  parte,  Hart,  In  re,  25  Ch.  D.  716  ; 
63  L.  J.,  Ch.  618 ;  50  L.  T.  651  ;  32  W.  K.  396 
— C.  A. 

Trustee  and  cestui  que  trust  —  Joint  and 
several    Liability  —  Proof    against    Separate 

Estate.] — A  testator  bequeathed  certain  sums  to 


each  of  his  children,  and  directed  the  trustees 
of  his  will  to  continue  his  business,  and  with  tee 
consent  of  his  children  to  employ  in  the  business 
any  part  of  the  general  estate,  paying  interest 
for  it.  A  bill  in  equity  having  been  filed  against 
the  trustees  by  parties  interested  under  the  will, 
an  arrangement  was  entered  into,  by  which  the 
sums  to  be  paid  to  the  testator's  children  under 
the  will  were  fixed  at  a  certain  amount,  and  the 
times  of  payment  fixed,  the  trustees  undertaking 
to  secure  payment  by  mortgages  of  the  testator's 
estate,  and  to  make  such  assurances  as  the  court 
should  think  necessary  or  proper.  This  arrange- 
ment was  sanctioned  by  the  court,  and  the 
appellants,  who  were  children  of  the  testator, 
assented  to  it.  The  mortgages  were  not  exe- 
cuted, nor  was  the  money  due  to  the  appellants 
paid.  One  of  the  trustees  became  possessed  of 
the  whole  property,  and  carried  on  the  business 
alone,  and  afterwards  filed  a  petition  for  liquida- 
tion. An  order  was  made  in  the  Chancery  suit, 
declaring  that  the  appellants  were  entitled  to  a 
lien  on  the  property  for  the  money  due  to  them. 
The  appellants  claimed  to  prove  against  the 
separate  estate  of  the  liquidating  debtor : — Held, 
that  until  the  arrangement  was  carried  out  the 
trustees  of  the  will  remained  trustees  for  the 
appellants  in  respect  of  the  money  due  to  them, 
and  therefore  were  severally  as  well  as  jointly 
liable,  and  were  also  severally  liable  because 
they  had  agreed  to  give  mortgages,  which,  if 
properly  drawn,  would  contain  several  covenants 
to  pay,  and  therefore  the  appellants  were  entitled 
to  prove  against  the  debtor's  separate  estate. 
Craven,  Ex  parte,  King,  Ex  parte,  Ingham, 
In  re,  52  L.  T.  714— C.  A. 

Secured  Creditor— Mortgage  of  Policy  of  In- 
surance— Covenant  to  pay  Premiums  -Valuing 
Security.] — The  holder  of  a  policy  of  insurance 
on  his  own  life  mortgaged  it  as  security  for  a 
debt  and  covenanted  with  the  mortgagees  to 

Eay  the  annual  premiums.  The  mortgagor 
aving  become  bankrupt  the  mortgagees  valued 
the  policy  and  proved  in  the  Irish  Court  of 
Bankruptcy  for  the  difference  between  that 
value  and  the  debt,  as  provided  by  the  Bank- 
ruptcy (Ireland)  Amendment  Act,  1872  (35  & 
36  Vict.  c.  58)  :— Held,  that  the  mortgagees  were 
not  entitled  under  sect.  47  to  prove  in  addition 
for  the  value  of  the  covenant  to  pay  premiums. 
Leering  v.  Bank  of  Ireland,  12  App.  Cas.  20 ; 
56  L.  J.,  P.  C.  47  ;  56  L.  T.  66  ;  35  W.  B.  634- 
H.  L,  (Ir.) 

Who  are.]— The  vesting  of  an  arranging 


debtor's  property  in  the  official  assignees  of  the 
Court  of  Bankruptcy  and  a  trustee,  pursuant  to 
resolution,  upon  trust  to  secure  the  payment  to 
the  creditors  in  the  arrangement  matter  of  the 
composition  agreed  on  does  not  place  such 
creditors  in  the  position  of  secured  creditors 
within  the  Bankruptcy  Acts.  Ouilfoyle,  In  re, 
15  L.  R.,  Ir.  238— C.  A.  See  Charrington,  Bt 
parte,  Dickinson,  In  re,  post,  coL  155. 


4.  PRACTICE  ON  PROOF. 

Judgment  recovered  after  Act  of  Bankruptcy.] 
— When  a  creditor  claims  to  prove  in  a  bank- 
ruptcy in  respect  of  a  debt  which  came  into 
existence  after  the  commission  of  the  act  of 
bankruptcy  on  which  the  fiat  was  based  (the 


149 


BANKRUPTCY— Proof  of  Belts. 


150 


bankruptcy  being  under  the  Bankruptcy  Act, 
1849),  toe  onus  is  on  him  to  prove  that  he  had  no 
fiotice  of  the  act  of  bankruptcy  before  the 
creation  of  the  debt.  Retell,  Ex  parte,  Tolle- 
mtehe.  In  re  (No.  2),  13  Q.  B.  D.  727  ;  54  L.  J., 
d  R  92 ;  51  L.  T.  379  ;  38  W.  R.  289— C.  A. 

When  in  support  of  a  claim  to  prove  a  debt  in 
a  bankruptcy  the  only  evidence  of  the  debt  is  a 
judgment,  and  that  judgment  has  been  obtained 
after  the  act  of  bankruptcy,  the  judgment  debt 
cannot  be  proved.  Ronham,  Ex  parte,  Tolle- 
macke.  In  rr,  14  Q.  B.  D.  604  ;  54  L.  J.,  Q.  B. 
388 ;  52  L.  T.  17 ;  33  W.  R.  628— C.  A. 

Jidgnent— Proof  of  Consideration.]— When 
a  claim  is  made  to  prove  in  a  bankruptcy  in 
respect  of  a  judgment  debt,  though  the  judgment 
jg  prima  facie  evidence  of  the  debt,  it  is  not 
conclusive  evidence,.,  and,  if  the  circumstances 
are  suspicious,  the "  court  will  call  upon  the 
claimant  to  prove  the  consideration  for  the  judg- 
ment and  if  he  is  unable  to  prove  it,  by  reason 
of  the  loss  of  documents,  or  the  lapse  of  time  or 
otherwise,  the  proof  will  be  rejected.  Anderson, 
JSr  parte,  ToUemoehe,  In  re,  14  Q.  B.  D.  606  ; 
M  L  J.,  Q.  B.  383  ;  62  L.  T.  786— C.  A. 

The  Court  of  Bankruptcy  is  not  conclusively 
bound  by  a  judgment  for  a  debt,  but  has  power, 
on  a  claim  to  prove  the  debt  in  the  bankruptcy 
of  the  judgment  debtor,  to  inquire  into  the  con- 
sideration for  the  debt.  Retell,  Ex  parte, 
TvUemaeke,  In  re,  13  Q.  B.  D.  720 ;  54  L.  J.,  Q.  B. 
89;  51  L.  T.  376  ;  38  W.  B.  288— C.  A.  S.  C. 
and  a  P.  Edward*,  Ex  parte,  ToUemoehe,  In 
re,  14  Q.  B.  D.  415— C.  A.,  on  application  for 
leave  to  appeal  to  the  House  of  Lords. 

Evidence— Bankrupt's  Statement  of  Affairs.] — 
in  admission  made  by  a  bankrupt  in  his  state- 
nent  of  affairs  that  a  debt  is  due  from  him,  is 
not  after  his  death  admissible  evidence  as  against 
his  assignee  in  bankruptcy  of  the  existence  of 
the  debt,  merely  because  it  might  turn  out  that 
there  was  a  surplus  after  paying  the  creditors. 
Edicardt,  Ex  parte,  Tollcmaehe,  In  re,  14 
Q.  B.  D.  415— C.  A. 

Bme  for  sending  in  Proof— Bos  Judicata.] — 
On  appeal  from  the  rejection  by  the  trustee 
in  bankruptcy  of  a  proof  of  debt  carried  in  by 
the  liquidator  of  a  mutual  insurance  company 
far  the  sum  of  85/.,  the  amount  due  from  the 
bankrupts  as  contributors  in  respect  of  calls, 
sad  also  for  the  estimated  sum  of  100 J.  for 
farther  calls  which  had  accrued  before  the  date 
of  the  receiving  order  but  had  not  been  then 
ascertained,  the  county  court  judge  allowed  the 
proof  as  to  the  85/.,  and  directed  the  proof  as  to 
the  100JL  to  stand  over.  On  30th  July,  1886, 
proof  for  the  ascertained  sum  of  74/.  in  sub- 
stitution for  the  100/.  was  tendered  and  was 
rejected  by  the  trustee  on  the  grounds  (1)  that 
the  claim  was  made  too  late  by  reason  of  the 
fact,  that  on  9th  July  notice  to  declare  a 
dividend  had  been  inserted  in  the  Gazette,  by 
which  28th  July  was  specified  as  the  last  day 
for  claims  to  be  sent  in  ;  and  (2)  that  the 
alleged  claim  had  already  been  adjudicated 
upon  by  the  court : — Held,  that  the  notice  in 
question  did  not  prevent  the  creditor  from 
making  the  claim,  and  that  the  proof  in  respect 
of  the  further  calls  was  not  res  judicata,  and 
bum*  be  allowed.     Whitehaven  Mutual  Insur- 


ance Society,  Ex  parte,  SJiepherd,  In  re,  4 
M.  B.  R.  130— D. 

Re-Proof —  Dispensing  with.] — If,  in  the 
opinion  of  the  court,  a  debt  has  been  sufficiently 
established,  it  may  dispense  with  a  proof  over 
again  for  the  purpose  of  voting,  under  s.  16, 
sub-8.  2,  of  the  Bankruptcy  Act,  1869,  and  Rule 
67  of  the  Bankruptcy  Rules,  1870.  McHenry, 
In  re,  35  W.  R.  20— C.  A. 

Amendment  of  Proof] — Where  an  application 
made  by  a  secured  creditor  for  leave  to  withdraw 
or  amend  his  proof  put  in  from  inadvertence  for 
the  full  amount  of  the  debt,  and  without  men- 
tioning the  security,  was  refused  by  the  county 
court  judge : — Held,  that  there  was  clearly  no 
intention  to  give  up  the  security,  and  that  proof 
for  the  full  amount  of  the  debt  having  been  put 
in  from  inadvertence,  leave  to  amend  ought  to 
have  been  granted.  Mesham,  Ex  parte,  King, 
In  re,  2  M.  B.  R.  119— D. 

A  mortgagee  who  has  valued  his  security,  will 
in  a  proper  case  be  allowed,  under  rule  13  in 
Schedule  2  to  the  Bankruptcy  Act,  1883,  to 
amend  his  valuation  and  proof,  notwithstand- 
ing the  opposition  of  a  subsequent  mortgagee 
Arden,  Ex  parte,  Arden,  In  re,  or  Arden  v 
Deacon,  14  Q.  B.  D.  121 ;  51  L.  T.712  ;  33  W.  R. 
460  ;  2  M,  B.  R.  1— D. 

Where,  in  an  arrangement  matter,  a  creditor 
made  his  proof  of  debt,  including  a  sum  for 
which  he  held  security,  and  was  represented  by 
a  solicitor  at  both  sittings  at  which  the  arrange- 
ment was  carried,  the  court  refused  leave  to 
withdraw  or  amend  the  proof  by  excluding  the 
secured  debt.  Robinson,  Ex  parte,  0,  D.,  In  re, 
15  L.  R.  Ir.  496— Bk. 

Secured   Creditor.]  —  A   creditor   of   a 

bankrupt  held  as  security  for  his  debt  a  policy 
of  insurance  on  the  life  of  the  bankrupt  for  200/. 
This  security  the  creditor  in  his  proof  in  the 
bankruptcy  valued  at  21/.  The  trustee  gave 
notice  of  his  intention  to  redeem  at  that  value. 
Shortly  afterwards  the  bankrupt  died,  and  200/. 
became  due  on  the  policy  ;  the  creditor  claimed 
to  amend  his  valuation  and  proof  by  increasing 
the  value  of  the  security  to  200/. : — Held,  that 
the  creditor  was  entitled  to  amend  at  any  time 
before  the  trustee  had  redeemed  it  by  payment 
to  the  creditor  of  its  assessed  value.  Korris,  Ex 
parte,  Sadler,  In  re,  17  Q.  B.  D.  728  ;  56  L.  J., 
Q.  B.  93  ;  85  W.  B.  19  ;  3  M.  B.  R.  260— C.  A. 


5.  EXPUNGING  PROOF. 

Judgment  for  Costs— Liability  incurred  subse- 
quently to  Receiving  Order— Loons  Standi  of 
Bankrupt.]— The  plaintiff  in  an  action  filed  his 
petition,  and  a  receiving  order  was  made  during 
the  hearing  of  the  action.  The  action  was 
continued  in  the  name  of  the  plaintiff,  and  two 
days  after  the  date  of  the  receiving  order  the 
defendant  recovered  judgment,  with  costs.  At 
a  meeting  of  creditors  to  consider  a  scheme  for 
composition,  the  chairman  allowed  the  defendant 
to  vote  in  respect  of  his  claim  for  costs,  and  by 
reason  of  his  vote  the  scheme  was  rejected  and 
the  debtor  made  a  bankrupt: — Held,  that  the 
debtor  was  entitled  to  move  to  expunge  the 
vote  of  the  defendant,  and  also  that  the  de- 
fendant's debt  was  not  provable  in  bankruptcy, 


151 


BANKRUPTCY— Proof  of  DebU. 


152 


as  the  bankrupt's  liability  did  not  arise  oat  of 
an  obligation  incurred  before  the  date  of  the 
receiving  order,  and  that  the  proof  must,  there- 
fore, be  expunged.  Bluck,  Ex  parte,  Bluck,  In 
re,  56  L.  J..  Q.  B.  607  ;  57  L.  T.  419  ;  35  W.  R. 
720 ;  4  M.  B.  B.  273— Cave,  J. 

Application  by  Creditor.] — A  creditor  who  has 
proved  a  debt  in  a  bankruptcy  has  an  interest 
which  entitles  him  to  apply  to  the  court  to 
expunge  the  proof  of  another  creditor  which  has 
been  admitted  by  the  trustee.  Merriman,  Ex 
parte,  Stenson,  In  re,  25  Ch.  D.  144 ;  53  L.  J., 
Ch.  403  ;  50  L.  T.  226  :  32  W.  R.  281  -0.  A. 

Application  by  Creditor  for  Bankrupt1  ■  be- 
nefit.]— An  application  made  by  one  creditor 
under  r.  25  of  sched.  2  of  the  Bankruptcy  Act, 
1883,  to  expunge  another  creditor's  proof,  will 
not  be  granted  if  it  appears  that  the  sole  object 
of  the  application,  though  nominally  made  in 
the  name  of  a  creditor,  is  to  benefit  the  bank- 
rupt. Rooney,  Ex  parte,  Tallerman,  In  re,  57 
L.  J.,  Q.  B.  509  ;  58  L.  T.  886 ;  36  W.  R.  864  ;  5 
M.  B.  R.  119— Cave,  J. 


6.  REJECTION  OF  PROOF. 

Appeal  against — Time  and  Procedure.] — If  a 

creditor  desires  to  appeal  against  the  rejection 
of  his  proof  by  the  trustee  he  must  give  notice 
of  motion  in  the  usual  way  under  r.  19  of  the 
Bankruptcy  Rules,  1883,  and  within  the  twenty- 
one  days  limited  by  the  174th  rule.  The  old 
practice  of  applying  to  the  court,  in  the  first 
instance,  to  fix  a  time  and  day  for  hearing  such 
an  application  no  longer  obtains.  Morrison,  Ex 
parte,  Gillespie,  In  re,  14  Q.  B.  D.  385  ;  52  L.  T. 
55  ;  33  W.  R.  751 ;  1  M.  B.  R.  278— Cave,  J. 

A  proof  against  the  estate  of  the  bankrupt 
was  filed  in  Sept.,  1884,  and  rejected  by  the 
trustee.  Upon  an  appeal  against  the  rejection 
of  the  proof,  a  preliminary  objection  was  raised 
to  the  effect  that  the  rejection  was  out  of  time. 
Rule  173  provides  that,  subject  to  the  power  of 
the  court  to  extend  the  time,  the  trustee  within 
fourteen  days  after  the  receipt  of  a  proof  shall, 
in  writing,  either  admit  or  reject  it  wholly  or  in 
part,  or  require  further  evidence  in  support  of 
it : — Held,  that  the  objection  was  not  good,  and 
that  the  question  being  one  merely  of  procedure, 
the  right  course  for  the  registrar  of  the  county 
court  to  have  taken  would  have  been  to  have 
treated  the  application  as  a  motion  to  expunge 
the  proof  on  benalf  of  the  trustee.  Fenton,  Ex 
parte,  Sissling,  In  re,  53  L.  T.  967  ;  2  M.  B.  R. 
289— D. 

Where,  on  an  appeal  from  the  rejection  of  a 
proof  by  the  trustee  the  objection  is  taken  that 
such  rejection  was  not  made  within  the  fourteen 
days  required  by  Rule  173  of  the  Bankruptcy 
Rules,  1883,  the  court  will  allow  such  objection, 
but  will  treat  the  application  as  a  motion  to 
expunge  the  proof  on  behalf  of  the  trustee,  and 
will  deal  with  the  case  accordingly.  Spamer, 
Ex  parte,  Voght,  In  re,  3  M.  B.  R.  164— Cave,  J. 


Costs — Unreasonable  Rejection  by  Trustee.] — 

The  court  in  reversing  the  decision  of  the  trustee 
in  a  bankruptcy  rejecting  a  proof,  ordered  him  to 
pay  the  costs  personally,  being  of  opinion  that 
he  had  acted  unreasonably  and  improperly  in  |     Claim  to  Return  of  Goods  Pledged— Detinue.] 


rejecting  it.    Brown,  Ex  parte,  Smith,  In  re,  17 
Q.  B.  D.  488  ;  3  M.  B.  R.  202— C.  A. 

A  trustee  in  bankruptcy  rejected  a  proof  ten- 
dered in  respect  of  a  debt  for  which  judgment 
had  been  entered  against  the  bankrupt  in  the 
Queen's  Bench  Division  under  a  judge's  order  by 
consent,  on  the  ground  that  the  order  had  not 
been  filed  as  required  by  s.  27  of  the  Debtore 
Act  (32  &  33  Vict.  c.  62),  so  that  the  judgment 
was  void.  The  trustee  in  rejecting  the  proof 
acted  under  the  directions  of  the  committee  of 
inspection  : — Held,  that  there  was  no  ground  for 
contending  that  the  invalidity  of  the  judgment 
affected  the  right  of  the  plaintiff  to  prove  for 
the  debt  for  which  the  action  was  brought ;  that 
the  decision  of  the  trustee  must  be  reversed 
with  costs,  to  be  paid  by  him  personally ;  and 
that  the  fact  that  he  had  acted  under  the  direc- 
tions of  the  committee  of  inspection  did  not 
affect  his  liability.    lb. 


Couduet  of  Creditor.] — A  proof  in  respect 


of  money  lent  was  tendered  against  the  estate  by 
the  father  of  the  bankrupt,  but  rejected  by  the 
trustee,  on  the  ground  that  no  notice  of  the 
alleged  debt  appeared  in  the  bankrupt's  books, 
and  that  it  was  barred  by  the  Statute  of  Limi- 
tations : — Held  that,  though  the  Statute  of  Limi- 
tations did  not  apply,  the  court  considered  that 
the  difficulty  had  arisen  from  the  conduct  of  the 
creditor  himself  in  allowing  the  debt  to  remain 
without  formal  acknowledgment  or  entry  in  the 
books,  by  reason  of  which  the  trustee  had  been 
compelled  to  come  to  the  court  in  the  course  of 
his  duty ;  and  that  though  the  proof  would  be 
allowed,  such  order  must  be  without  costs,  the 
trustee  to  take  his  costs  out  of  the  estate.  De* 
Vignes,  Ex  parte,  Des  Vignes,  In  re,  5M.B.B, 
143— Cave,  J. 

Security  for  Costs — Creditor  resident  Abroad.] 
—The  court  has  no  jurisdiction  to  order  a 
creditor  resident  abroad,  who  is  appealing  from 
the  rejection  of  his  proof  by  the  trustee,  to  give 
security  for  the  costs  of  such  appeal.  Izard, 
Ex  parte,  Vanderhaege,  In  re,  20  Q.  B.  D.  146 ; 
68  L.  T.  236 ;  36  W.  B.  525  ;  4  M.  B.  R  27- 
Cave,  J. 

Appeal  by  Creditor— Loeus  Standi  of  Bank- 
rupt]— At  the  first  meeting  of  the  creditors 
of  a  Dankrupt  the  chairman  rejected  the  proof 
tendered  by  a  creditor  for  the  sum  at  which  the 
bankrupt  had  entered  and  sworn  to  the  debt  in 
his  statement  of  affairs.  On  appeal  by  the  creditor 
from  such  rejection  : — Held,  that  the  bankrupt 
had  no  locus  standi  to  appear  and  oppose  the 
appeal,  even  though  he  had  been  served  with 
notice  of  appeal.  Smith,  Ex  parte,  Knight,  1% 
re,  1  M.  B.  R.  74— Cave,  J. 


X.    MUTUAL  DEALINGS— SET-OFF. 

Time  for.]— Where  there  are  mutual  dealings 
between  a  debtor  and  his  creditors,  the  line  as  to 
set-off  must,  as  a  general  rule,  and  in  the  ab- 
sence of  special  circumstances,  be  drawn  at  the 
date  of  the  commencement  of  the  bankruptcy. 
Reid,  Ex  parte,  Gillespie,  In  re,  14  Q.  B.  D. 
963  ;  54  L.  J.,  Q.  B.  342  ;  52  L.  T.  692  ;  33  W.  B. 
707  ;  2  M.  B.  R.  100— Cave,  J. 


153 


BANKRUPTCY— Invalid  and  Protected  Transactions. 


154 


— Tbe  plaintiff  company  had  deposited  cigars 
with  toe  defendants  to  secure  a  debt.    An  order 
tar  winding  np  the  company  was  afterwards 
made,  and,  the  secured  debt  having  been  paid 
off,  the  liquidator  of  the  company  claimed  a 
return  of  the  cigars,  but  the  defendants  refused 
to  pre  them  up.     The  liquidator  brought  an 
action  of  detinue  for  the  cigars.    Their  value 
having  been  assessed  in  the  action,  the  defen- 
dants claimed  by  way  of  counterclaim  to  set  off 
another  debt  due  from  the  company  to  them 
against  snch  value  by  virtue  of  the  conjoint 
effect  of  s.  38  of  the  Bankruptcy  Act,  1883  (the 
"matual  dealings'*  section),  and  s.  10  of  the 
Judicature  Act,  1875,  which  applies  the  rules  of 
bankruptcy  law  to  cases  of  winding  up : — Held, 
that  they  were  not  entitled  to  do  so  on  the 
ground  that  s.  38  is  only  applicable  where  the 
claims  on  each  side  are  such  as  result  in  pe- 
cuniary liabilities,  whereas  the   right   of   the 
plaintiffs  was  to  a  return  of  the  goods.    EberWs 
H&l  Company  v.  Jonas,  18  Q.  B.  D.  459  ;  56 
L.  J.,  Q.  B.  278  ;  35  W.  R.  467— C.  A. 


Deposit  for  Special  Purpose— Debts.]— Where 
money  has  been  deposited  with  a  person  for  a 
specific  purpose,  which  fails,  it  cannot,  upon  the 
bankruptcy  of  the  depositor,  be  retained  as  a 
set-off  by  the  depositary  against  debts  due  to 
him  from  the  depositor.  Wright  v.  Watson,  1 
C.4E.171— Pollock,  B. 


Partnership  Debt — Security  on  Separate  Ba- 
tata.]— A  father  and  son  were  partners  in  busi- 
ness. The  father  mortgaged  real  estate,  which 
was  his  separate  property,  to  the  bankers  of  the 
firm,  to  secure  the  balance  for  the  time  being  of 
the  current  account  of  the  firm.  Afterwards  he 
contracted  to  sell  the  real  estate,  and  the  bankers 
joined  in  the  conveyance  to  the  purchaser  on  the 
terms  of  an  agreement  that  the  father  should 
deposit  the  purchase-money  with  the  bankers  in 
his  own  name,  at  interest ;  that  the  deposit 
should  be  a  security  to  the  bankers  for  the  debt 
of  the  firm,  but  that,  subject  to  that  security, 
the  deposit  should  remain  the  separate  property 
of  the  father  ;  that,  until  payment  of  the  debt 
of  the  firm,  the  father  should  not  be  entitled  to 
withdraw  any  part  of  the  deposit,  but.  until 
demand  by  the  bankers  for  payment  of  the 
debt,  he  should  be  at  liberty  to  draw  out  half- 
yearly  the  interest  on  the  deposit ;  and  that,  in 
erne  demand  should  be  made  by  the  bankers  for 
payment,  they  might,  at  any  time  after  the  ex- 
piration of  twelve  months  from  the  making  of 
the  demand,  bat  not  sooner,  apply  the  deposit, 
«nd  the  interest  thereon  from  the  time  of  making 
the  demand,  in  or  towards  the  payment  of  the 
debt  of  the  firm.  The  father  also  entered  into  a 
covenant  for  payment  of  the  debt  of  the  firm. 
This  arrangement  was  carried  out : — Held,  that, 
the  arrangement  being  a  bona  fide  one  for  the 
Purpose  of  giving  a  security  to  the  bankers,  in 
sshatitation  for  their  security  on  the  real  estate, 
the  bankers  could  prove  in  the  liquidation  of  the 
father  and  son  against  the  joint  estate  for  the 
fsil  amount  of  their  debt,  without  deducting  the 
snwxmt  of  the  deposit,  and  that  no  set-off  arose 
by  virtue  of  a  39  of  the  Bankruptcy  Act,  1869. 
OtWertt,  Ex  parte,  Hart,  In  re,  25  Ch.  D.  716  ; 
*3  W.,  Ch.  618  ;  50  L.  T.  651 ;  32  W.  R.  396 
-<XA. 


XI.     INVALID  AND  PBOTECTSD  TRANS- 
ACTIONS. 

1.  Executions. 

2.  Distresses. 

3.  Fraudulent  Conveyances. 

4.  Fraudulent  Preferences. 
6.  Assignments  of  Property. 

6.  Other  Dealings  by  Bankrupt. 

7.  Dealings  with  Property  by  Agent. 


1.  EXECUTIONS. 

Elegit— Delivery  in  Execution — Seizure.] — 
An  execution  against  lands  is  "completed  by 
seizure"  within  s.  45,  sub-s.  2,  of  the  Bank- 
ruptcy Act,  1883,  as  soon  as  the  sheriff  has  de- 
livered the  lands  to  the  execution  creditor  under 
a  writ  of  elegit,  though  a  receiving  order  is 
afterwards  made  before  the  sheriff  makes  a 
return  to  the  writ.  Hobson,  In  re,  33  Ch.  D. 
493  ;  55  L.  J.,  Ch.  754  ;  55  L.  T.  255  ;  34  W.  B. 
786— V.-C.  B. 


Goods — Seizure  but  no  Delivery.] — By 


the  Bankruptcy  Act,  1883,  s.  146,  "the  sheriff 
shall  not  under  a  writ  of  elegit  deliver  the  goods 
of  a  debtor,  nor  shall  a  writ  of  elegit  extend  to 
goods,"  and  by  s.  169,  which  repeals,  amongst 
other  enactments,  so  much  of  13  Edw.  1,  c.  18, 
as  relates  to  the  chattels  of  the  debtor,  save  only 
his  oxen  and  beasts  of  the  plough,  it  is  enacted 
that "  the  repeal  effected  by  this  act  shall  not 
affect  any  thing  done  before  the  commencement 
of  this  act  under  any  enactment  repealed  by 
this  act ;  nor  any  right  or  privilege  acquired  or 
duty  imposed,  or  liability  or  disqualification  in- 
curred, under  any  enactment  so  repealed.1  *  Some 
days  before  the  1st  of  January,  1884,  when  the 
Bankruptcy  Act,  1883,  came  into  operation,  the 
sheriff  entered  into  possession  and  seized  goods 
of  the  defendant,  under  a  writ  of  elegit  issued 
under  statute  13  Edw.  1,  c.  18,  at  the  suit  of  the 
plaintiff,  a  judgment  creditor  of  the  defendant, 
but  no  delivery  of  such  goods  had  been  made  to 
the  plaintiff  before  the  1st  of  January,  1884 : — 
Held,  that  the  Bankruptcy  Act,  1883,  bad  not 
deprived  the  plaintiff  of  his  right  to  the  delivery 
of  such  goods.  Hough  v.  Windus,  12  Q.  B.  D. 
224  ;  53  L.  J.,  Q.  B.  165  ;  50  L.  T.  312  ;  32  W.  R. 
452  ;  1  M.  B.  R.  1— C.  A. 

On  the  22nd  December,  1883,  the  sheriff 
entered  into  possession  of  the  goods  of  W.  by 
virtue  of  a  writ  of  elegit,  but  had  not,  at  the 
time  that  the  Bankruptcy  Act,  1883,  came  into 
operation,  nor  subsequently,  delivered  them  to 
the  creditor.  On  the  31st  January,  1884,  the 
debtor  was  adjudicated  a  bankrupt,  and  an  order 
was  made  by  the  registrar  restraining  the  sheriff 
from  proceeding  further  upon  the  writ  of  elegit 
in  order  that  the  matter  might  be  referred  to 
the  bankruptcy  judge  to  determine  the  question 
whether  an  act  of  bankruptcy  committed  sub- 
sequently to  the  time  when  the  Bankruptcy  Acl, 
1683,  came  into  operation,  and  intervening  be- 
tween seizure  ana  delivery,  had  affected  the 
rights  of  the  creditor : — Held,  that  the  creditor's 
rights  were  not  impaired,  and  that  the  circum- 
stances were  such  as  were  intended  to  be  dealt 
with  by  the  temporary  provisions  of  s.  169  of  the 
Bankruptcy  Act,  1883,  and  not  by  the  perma- 
nent provisions  of  s.  45  of  the  same  act.   Hough, 


155 


BANKRUPTCY— Invalid  and  Protected  Transactions. 


156 


Ex  parte,  Windns,  In  re,  50  L.  T.  212 ;  32  W.  B. 
540  ;  1  M.  B.  B.  22— Cave,  J. 


Assignment  to  Trustees  under  Resolu- 


tion of  Creditors  after  Writ  lodged  with 
Sheriff] — The  plaintiffs  signed  judgment  against 
the  defendants  on  the  12th  July,  and  on  the 
same  day  delivered  a  writ  of  elegit  to  the  sheriff, 
who  did  not  seize  the  goods  until  the  20th  Sep- 
tember, when  they  were  in  the  possession  of  the 
claimants.  On  the  11th  July  the  defendants 
closed  their  place  of  business  in  order  to  pre- 
vent executions  being  levied,  and  kept  them 
closed  until  the  16th  July,  when  they  filed  a 
petition  for  the  liquidation  of  their  affairs  by 
arrangement  or  composition  under  the  Bank- 
ruptcy Act,  1869,  and  at  a  meeting  of  creditors 
on  the  27th  August  it  was  resolved  that  a  com- 
position cf  7*.  Qd.  in  the  pound  should  be 
accepted  and  secured  by  an  assignment  of  the 
whole  of  the  assets  of  the  defendants  to  the 
claimants  as  trustees,  and  that  a  proper  deed  of 
assignment  should  be  executed  by  the  defen- 
dants. On  the  11th  September  the  claimants 
received  a  written  notice  from  the  plaintiffs  that 
the  writ  of  elegit  had  been  lodged  with  the 
sheriff,  and  on  the  17th  September,  that  is,  before 
the  goods  were  seized,  the  defendants  executed 
tbe  deed  of  assignment  to  the  claimants  in  pur- 
suance of  the  resolution  of  the  creditors : — 
Held,  that  the  plaintiffs  were  entitled  to  the 
goods.    Elders  v.  Kaufman,  49  L.  T.  806— D. 

Equitable  Execution  —  Completion — Secured 
Creditor.] — Execution  was  issued  against  the 
goods  of  a  debtor  by  a  judgment  creditor,  and 
two  days  afterwards  the  creditor  obtained  an 
order  for  the  appointment  of  a  receiver.  The 
debtor  was  shortly  after  this  adjudicated  bank- 
rupt on  his  own  petition,  at  which  time  the 
goods  were  unsold  : — Held,  first,  that  the  order 
appointing  a  receiver  of  the  debtors  goods  did 
not  constitute  the  execution  creditor  a  secured 
creditor ;  secondly,  that  the  order  did  not 
amount  to  equitable  execution  ;  and  thirdly, 
that  if  it  did,  s.  45  of  the  Bankruptcy  Act,  1883, 
applied,  and  the  execution  not  having  been  com- 
pleted by  sale  at  the  time  of  the  making  of  the 
receiving  order  in  bankruptcy,  the  execution 
creditor  was  not  entitled  to  retain  the  benefit 
of  it  against  the  trustee.  Charrington,  Ex 
parte,  or  Moore,  Ex  parte,  Dickinson,  In  re,  22 
Q.  B.  D.  187  ;  58  L.  J.,  Q.  B.  1 ;  60  L.  T.  138  ; 
37  W.  B.  130  ;  6  M.  B.  B.  1— C.  A. 

Charging  Order  HisL] — An  order  nisi  charging 
shares  under  1  &  2  Vict.  c.  110,  s.  14,  is  not  "  an 
execution  against  the  goods  of  a  debtor  "  within 
s.  45  of  46  &  47  Vict.  c.  52  (the  Bankruptcy  Act, 
1883).  Hutchinson,  Ex  parte,  or  Plowden,  Ex 
parte,  Hutchinson,  In  re,  16  Q.  B.  D.  515  ;  55 
L.  J.,  Q.  B.  582  ;  54  L.  T.  302  ;  34  W.  B.  475  ;  3 
M.  B.  B.  19— D. 

Garnishee  Order — "  Receipt  of  Debt " — Money 
paid  into  Court.] — A  creditor  having  obtained  a 
garnishee  order  in  respeot  of  a  debt  due  to  the 
judgment  debtor,  a  third  person  intervened 
claiming  that  the  debt  was  due  to  her  ;  and  the 
garnishee,  under  an  order  of  the  court,  paid  the 
amount  into  court  to  abide  further  order.  A 
receiving  order  having  been  subsequently  made 
against  the  judgment  debtor,  the  third  person 
withdrew  her  claim  : — Held,  that  there  had  been 


no  "  receipt  of  the  debt "  by  the  creditor  within 
the  meaning  of  s.  45  of  the  Bankruptcy  Act,  1883, 
so  as  to  entitle  him  to  retain  it  against  the  judg- 
ment debtor's  trustee  in  bankruptcy.  Butler  t. 
Wearing,  17  Q.  B.  D.  182  ;  3  M.  B.  R.  5- 
Manisty,  J. 

"Beiiure  and  Sale" — Interpleader— Con. 
pletion  of  Execution.  J— Goods  of  the  debtor  were 
taken  in  execution  by  the  plaintiff  under  a  judg- 
ment for  a  sum  exceeding  20Z.  The  goods  haying 
been  claimed  by  a  third  person,  an  interpleader 
order  was  made  on  March  16  directing  that,  un- 
less payment  were  made  or  security  given  hy  the 
claimant  according  to  the  provisions  of  the  order, 
the  sheriff  should  sell  the  goods  and  pay  the  pro- 
ceeds of  the  sale  into  court.  The  claimant  did 
not  comply  with  the  provisions  of  the  order,  and 
ultimately  withdrew  his  claim.  On  March  28 
the  goods  were  sold  and  the  proceeds  paid  into 
court  on  April  6.  On  April  7  notice  of  a  bank- 
ruptcy petition  having  been  presented  against 
the  debtor  was  served  on  the  sheriff,  and  the 
debtor  was  adjudged  bankrupt  on  such  petition : 
— Held,  that  under  ss.  45  and  46  of  the  Bank- 
ruptcy Act,  1883,  the  trustee  in  bankruptcy  of 
the  debtor  was  entitled  as  against  the  plaintiff 
to  the  money  in  court.  Heathcote  v.  Litedeif, 
or  Livesey,  In  re,  19  Q.  B.  D.  285 ;  56  L.  Jn 
Q.  B.  645  ;  36  W.  B.  127  ;  51  J.  P.  471— D. 

Where  a  sheriff  has  seized  goods  on  behalf  of 
an  execution  creditor,  but  is  ordered  before  sale 
to  withdraw  in  favour  of  the  receiver  in  an  action 
in  the  Chancery  Division,  the  execution  has  not 
been  "completed"  within  s.  45  of  the  Bank- 
ruptcy Act,  1883,  and  the  goods  seized  pass  to  the 
trustee  in  bankruptcy  of  the  debtor.  Maeltay  t, 
Merritt,  34  W.  R.  433— V.-C.  B. 

Payment  by  Judgment   Debtor  befwe 


Sale— Bight  to  Proceeds.]— On  3rd  February, 
the  sheriff  seized  goods  of  a  debtor  under  an 
execution  for  more  than  20Z.,  and  on  4th  Feb- 
ruary, before  sale,  the  debtor  paid  the  amount  of 
debt  and  costs.  On  13th  February,  a  petition 
was  presented  against  the  debtor,  on  which  he 
was  adjudicated  bankrupt ;  the  trustee  claimed 
the  money  from  the  sheriff : — Held,  that  the 
payment  out  by  a  debtor  of  an  execution  upon 
his  goods  is  not  a  "  sale  "  within  the  meaning  of 
s.  46.  sub.-s.  2,  of  the  Bankruptcy  Act,  1883,  and 
that  the  money  was  received  by  the  sheriff  for 
the  judgment  creditors,  who  were  entitled  to  it, 
as  against  the  trustee  in  bankruptcy.  We& 
Cannock  Colliery  Company,  Ex  parte,  Pearson, 
In  re,  3  M.  B.  B.  187— D. 

Writs  of  Fi  Fa.  for  more  and  for  leu  that 
20/.— Title  to  Proceeds.]— Where  the  sheriff  sells 
under  an  execution  for  more  than  20?.,  and  with- 
in fourteen  days  afterwards  receives  notice  of  a 
bankruptcy  petition,  the  effect  of  s.  46,  sub.-s.  2. 
of  the  Bankruptcy  Act,  1883,  is  not  to  render 
the  sale  absolutely  void,  but  to  deprive  the 
execution  creditor  of  the  fruits  of  the  sale,  and 
to  transfer  them  to  the  trustee  in  the  bankruptcy 
for  the  benefit  of  the  general  body  of  the  credi- 
tors.— Where,  therefore,  a  sheriff  is  in  possession 
under  several  writs,  some  for  more  and  some  for 
less  than  20/.,  and  proceeds  to  sell,  the  writs  are 
payable  in  order  of  priority  so  long  as  there  are 
funds  to  pay  ;  but,  if  he  receives  notice  of  a 
bankruptcy  petition  within  fourteen  days  after 
the  sale,  only  those  writs  are  entitled  to  be  paid 


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BANKRUPTCY— Invalid  and  Protected  Transactions. 


158 


which  are  for  less  than  20/.,  and  which  would 
hare  been  paid  had  not  bankruptcy  supervened. 
CiwthwaUe,  Ex  parte,  Pearee,  In  re,  14  Q.  B.  D. 
966;  54  L.  J.,Q.  B.  316  ;  52  L.T.  518  ;  33  W.  R. 
€14 ;  2  M.  B.  B.  105— Cave,  J. 


of  Petition— «  Sheriff"]— The  notice 
of  a  bankruptcy  petition  mentioned  in  sub-s.  2 
of  s.  46  of  the  Bankruptcy  Act,  1883,  must  be 
served  on  the  sheriff  or  his  recognized  agent 
(such  as  the  under-sheriff)  for  the  purpose  of 
receiring  such  notices ;  it  is  not  sufficient  to 
eerre  it  upon  an  ordinary  bailiff  or  man  in  pos- 
sesion.—The  effect  of  the  provision  of  s.  168 
that  "  sheriff  includes  any  officer  charged  with 
the  execution  of  a  writ  or  other  process/'  is  to 
bring  within  s.  46  officers  of  inferior  courts  who 
discharge  for  those  courts  duties  similar  to  those 
which  the  sheriff  discharges  for  the  High  Court. 
—On  F.,  the  sergeant-at-mace  of  the  Mayor's 
Court  of  London,  proceeding  to  execute  a  warrant 
iamed  to  enforce  a  judgment  for  more  than  201. 
obtained  in  that  court,  he  found  H.,  an  officer  of 
the  sheriffs  of  London,  in  possession  of  the  goods 
of  the  debtor  under  a  writ  issued  by  the  Queen's 
Bench  Division,  and  thereupon,  in  accordance 
with  the  usual  practice,  he  delivered  the  warrant 
to  H.  for  execution.  H.  sold  the  goods,  and  out 
of  the  proceeds  paid  the  amount  of  the  warrant 
to  F.  The  next  day  notice  was  served  on  H.  of 
a  bankruptcy  petition  having  been  presented 
against  the  debtor  on  which  he  was  afterwards 
adjudged  bankrupt.  No  notice  of  the  petition 
was  served  on  F. : — Held,  by  Cave,  J.,  that,  by 
virtue  of  s.  168,  H.  must  under  the  circumstances 
be  deemed  to  be  "  the  sheriff  "  for  the  purposes 
of  a.  46,  sub-s.  2  ;  and  that  therefore  the  trustee 
in  the  bankruptcy  was,  as  against  the  execution 
creditor,  entitled  to  the  money. — Held,  by  the 
Court  of  Appeal,  that,  even  if  an  effectual  notice 
conkl  ever  have  been*  served  on  H.,  a  notice 
•erred  on  him  after  he  had  handed  over  the 
money  to  F.,  and  his  agency  for  F.  had  thus 
been  determined,  was  ineffectual,  and  that  con- 
sequently the  execution  creditor  was  entitled  to 
the  proceeds  of  sale.  Warren,  Ex  parte,  HoU 
l**d,  In  re,  15  Q.  B.  D.  48  ;  54  L.  J.,  Q.  B.  820  ; 
53  L.T.  68 ;  33  W.  R.  572  ;  2  M.  B.  R.  142— C.  A. 

Form — Writing.]  —  The  notice  to  be 

asrred  on  a  sheriff  of  a  bankruptcy  petition  hav- 
ing been  presented  against  or  by  the  debtor 
nnder  a.  46,  sub-s.  2,  of  the  Bankruptcy  Act, 
need  not  necessarily  be  in  writing.  Curtis  v. 
Wainbrook  Iran  Con  1  C.  &  B.  351 — Grove,  J. 

letentum  of  Proceeds — Period  from  which 
Foutesm  Days  runs.]— By  sub-s.  2,  s.  46,  Bank- 
mptcy  Act,  1883,  "  Where  the  goods  of  a  debtor 
are  sold  under  an  execution  in  respect  of  a  judg- 
ment for  a  sum  exceeding  20/.,  the  sheriff  shall 
deduct  the  costs  of  the  execution  from  the  pro- 
ceeds of  sale,  and  retain  the  balance  for  fourteen 
days,  and  if  within  that  time  notice  is  served  on 
him  of  a  bankruptcy  petition  having  been  pre- 
sented against  or  by  the  debtor,  and  the  debtor 
*  adjudged  bankrupt  thereon  ...  the 
sheriff  shall  pay  the  balance  to  the  trustee  in  the 
bankruptcy."  On  the  9th  Feb.,  1888,  the  sale  by 
the  sheriff  of  the  debtor's  goods  under  an  execu- 
tion was  completed,  but  the  proceeds  were  not 
paid  over  by  the  purchaser  until  after  that  date. 
On  the  23rd  February  a  petition  was  taken  to 
the  office  to  be  filed  against  the  debtor,  but  was 


refused  by  the  clerk  as  irregular,  and  on  the  24th 
February  a  proper  petition  was  presented  and 
filed.  The  execution  creditor  moved  for  a 
declaration  that  he  was  entitled  to  the  proceeds 
of  sale  as  against  tbe  trustee  in  bankruptcy: — 
Held,  that  no  petition  was  presented  within  the 
meaning  of  the  section'  until  the  24th  February ; 
that  the  fourteen  days  commenced  to  run  from 
the  completion  of  the  sale,  and  not  from  the 
receipt  of  the  proceeds  of  sale  by  the  sheriff ; 
that  the  petition  was  therefore  filed  too  late,  and 
the  execution  creditor  was  entitled  to  the  money. 
Ross,  Ex  parte,  Cripps,  In  re,  21  Q.  B.  D.  472  ; 
58  L.  J.,  Q.  B.  19  ;  50  L.  T.  341  ;  36  W.  R.  845  ; 
5  M.  B.  R.  226 — Cave,  J.  Appeal  compromised, 
33  S.  J.  28— C.  A. 

"  Costs  of  the  Execution  "—What  are.]— 
Expenses  incurred  by  a  sheriff  for  the  cost  of 
cutting,  carrying,  threshing,  and  dressing  corn 
which  has  been  taken  in  execution,  are  not 
"  costs  of  the  execution  "  within  the  meaning  of 
s.  46,  sub-s.  1,  of  the  Bankruptcy  Act,  1883.  and 
therefore  if  before  sale  notice  of  a  receiving 
order  against  the  execution  debtor  is  served  on 
the  sheriff,  and  the  goods  are  delivered  to  the 
official  receiver  or  trustee,  such  expenses  are  not 
a  charge  on  the  goods,  and  must  be  disallowed 
on  taxation  of  the  sheriff's  costs.  Conder,  Ex- 
parte,  Woodham,  In  re,  20  Q.  B.  D.  40  ;  57  L.  J., 
Q.  B.  46  ;  58  L.  T.  116  ;  36  W.  R.  226.— D. 

When  the  bankruptcy  of  a  judgment  debtor 
supervenes  after  seizure,  but  before  sale,  by  the 
sheriff  under  a  writ  of  fi.  fa.,  the  sheriff  is  not 
entitled  to  poundage  under  the  words  "  costs  of 
execution  "  in  sub-s.  1  of  s.  46  of  the  Bankruptcy 
Act,  1883.  Lndmore  or  Ludford,  In  re,  1ft 
Q.  B.  D.  415  ;  53  L.  J.,  Q.  B.  418  :  51  L.  T.  240  ; 
33  W.  R.  152  ;  1  M.  B.  R.  131— Cave,  J. 

Relation  hack  of  Trustee's  Title — Composition 
falling  through.]— The  title  of  a  trustee  in 
bankruptcy  to  the  bankrupt's  property  relates 
back  under  s.  11  of  the  Bankruptcy  Act,  1869,  to 
the  original  act  of  bankruptcy,  although  com- 
position proceedings  were  taken  in  the  first 
instance  which  were  afterwards  superseded  by 
bankruptcy.  When  such  a  supersession  takes- 
place  the  title  of  the  trustee  in  bankruptcy  is- 
prior  to  that  of  a  creditor  who  has  seized  and 
sold  the  debtor's  goods  with  notice  of  the  original 
act  of  bankruptcy.  Barron  v.  Ehlers,  1  C.  &  E. 
432— Mathew,  J. 

Expiration  of  Restraining  Order.] — Judgment 
having  been  obtained  against  W.  H.  S.,  and 
execution  having  been  issued  but  not  levied,. 
W.  H.  S.  filed  his  petition  for  liquidation,  and 
an  order  was  made  appointing  L.  receiver  and 
manager,  and  an  order  restraining  the  creditor 
from  further  proceedings  under  the  judgment 
until  four  days  after  the  first  meeting  of  cre- 
ditors. This  being  held,  no  resolutions  were 
passed,  and  the  sheriff  went  into  possession. 
Upon  the  receiver  claiming  all  moneys  in  respect 
of  the  estate,  an  interpleader  summons  was  taken 
out,  and  ultimately  an  issue  was  directed  to  be 
tried  : — Held,  that  the  restraining  order  having 
expired,  tbe  execution  creditor  was  entitled  to- 

Eroceed  with  his  execution.    Lomax  v.  Ward,  50 
..  T.  275— Cave,  J. 

Sights  of  Landlord  of  Premises — Rent.] — A 
landlord  can  only  claim  under  8  Anne,  c.  14, 


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BANKBUPTCY— Invalid  and  Protected  Transactions. 


164 


in  the  former  capacity  haying  in  his  hands  moneys 
of  the  firm,  as  well  as  being  indebted  to  them 
for  goods  supplied,  on  the  eye  of  bankruptcy  de- 
livered to  them,  upon  a  threat  of  immediate 
prosecution,  certain  unopened  chests  of  tea 
which  he  had  received  from  them,  and  also  gave 
them  a  mortgage  security  for  the  balance  of  his 
debt.    Boyd,  In  re,  16  L.  R.  Ir.  521— C.  A. 

Motive  of  Debtor— Payment  to  make  good 
Breaoh  of  Trust] — In  order  that  a  payment  or 
transfer  of  property,  made  by  a  bankrupt  within 
three  months  before  the  presentation  of  the 
petition  on  which  he  was  adjudicated  a  bankrupt, 
should  amount  to  a  fraudulent  preference  within 
s.  48  of  the  Bankruptcy  Act,  1883,  it  is  essential 
that  it  should  have  been  made  by  him  "  with  a 
view  of  giving  a  preference  "  to  the  creditor  to 
whom  it  was  made  ;  it  is  not  sufficient  that  the 
creditor  was  in  fact  preferred.  The  court  must, 
therefore,  in  each  case  consider  as  a  question  of 
fact  what  was  the  real  or  dominant  motive  of 
the  bankrupt  in  making  the  payment  or  trans- 
fer, and,  if  the  court  comes  to  the  conclusion 
that  the  bankrupt's  real  motive  was  (e.g.)  to  save 
himself  from  exposure  or  from  a  criminal 
prosecution,  the  payment  or  transfer  is  not  a 
fraudulent  preference.  It  is  also  essential  that 
the  relation  of  debtor  and  creditor  should  have 
existed  between  the  parties  at  the  time  when 
the  payment  or  transfer  was  made.  Conse- 
quently, a  voluntary  payment  to  make  good  a 
breach  of  trust  committed  by  the  bankrupt  is 
not  within  8.  48.  Stubbing,  Ex  parte  (17  Ch.  D. 
68),  followed.  Taylor,  Ex  parte,  Golds  mid y  In 
re,  18  Q.  B.  D.  295  ;  56  L.  J.,  Q.  B.  195  ;  35  W. 
R.  148— C.  A. 

Payments  made  previous  to  bankruptcy,  in 
restitution  of  a  breach  of  trust  by  a  person 
"  unable  to  pay  his  debts  as  they  become  due  " 
cannot  be  recovered  by  the  trustee  on  the  ground 
of  fraudulent  preference,  since  the  relation  of 
debtor  and  creditor  has  been  held  not  to  be 
created  between  co-trustees,  or  between  a  trustee 
and  his  cestui  que  trust,  within  the  meaning  of 
s.  48  of  the  Bankruptcy  Act,  1883.  Stubbing, 
Ex  parte  (17  Ch.  D.  58),  and  Taylor,  Esc  parte 
(18  Q.  B.  D.  295),  followed.  Ball,  Ex  parte, 
Hutchinson,  In  re,  35  W.  R.  264— C.  A. 

Payment   to   Creditor  with   object   of 

benefiting  Debtor's  Surety.] — A  payment  that  is 
made  by  a  debtor  on  the  eve  of  bankruptcy  to  a 
particular  creditor,  not  with  the  object  of  pre- 
ferring that  creditor,  but  with  the  object  of 
benefiting  the  debtor's  surety,  is  not  a  payment 
"  with  a  view  of  giving  such  creditor  a  preference 
over  the  other  creditors  "  within  the  meaning  of 
s.  48  of  the  Bankruptcy  Act,  1883,  and  is  there- 
fore not  void  as  against  the  trustee  in  bank- 
ruptcy. Official  Receiver,  Ex  parte,  Mill*,  In 
re,  58  L.  T.  871  ;  5  M.  B.  R.  55— C.  A. 

On  an  application  by  the  trustee  to  declare 
void,  on  the  ground  of  fraudulent  preference,  an 
assignment  of  certain  patent  rights,  and  also 
the  payment  of  a  sum  of  money  made  by  the 
debtor  within  three  months  of  a  bankruptcy 
petition  being  presented  against  him,  to  his 
uncle,  who  had  guaranteed  the  payment  of  a  debt 
due  from  such  debtor  to  another  person,  the 
objection  was  raised  that  the  payment  now 
sought  to  be  set  aside  had  been  made  in  con- 
sequence of  the  guarantee  and  not  "  in  favour  of 
any  creditor : " — Held,  that  the  assignment  was 


clearly  a  fraudulent  preference,  and  that  on  tbc 
facts  of  the  case,  the  uncle  of  the  debtor  at  the 
time  of  the  payment  of  the  money  to  him,  being 
independently  of  the  guarantee  a  creditor  for 
goods  sold,  such  payment  was  also  void.  Official 
Receiver,  Ex  parte,  Bear,  In  re,  3  M.  B.  B.  129 
— Cave,  J. 

Alleged  Purchase  of  Debt  by  Third  Party.]- 
Where  a  creditor  having  knowledge  of  an  act  of 
bankruptcy  refused  to  accept  money  from  his 
debtor,  but  subsequently  executed  an  assignment 
of  the  debt  to  a  friend  of  the  debtor  who  was 
stated  to  be  willing  to  purchase  the  debt  at  its 
full  value,  and  it  appeared  that  such  alleged 
purchaser  was  altogether  ignorant  of  the  matter, 
the  money  paid  to  the  creditor  being  in  reality 
borrowed  by  the  debtor  himself  for  that  purpose 
a  few  days  prior  to  a  receiving  order  being  made 
against  him  : — Held,  that  the  trustee  in  bank- 
ruptcy was  entitled  to  the  money  so  paid. 
Daniel,  Ex  parte,  Roberts,  In  re,  5  M.  B.  R.  213 
— Cave,  J. 

Assignment  of  Proceeds  of  Sale  of  Property.] 
— G.,  a  farmer,  whose  lease  was  about  to  expire 
in  September,  1884,  placed  all  his  live  and  dead 
stock  in  the  hands  of  an  auctioneer  to  realize, 
and  in  order  to  prevent  H.,  who  held  a  judgment 
for  1807.  against  him,  and  also  a  promissory  note 
for  387.,  from  stopping  the  sale,  6.  signed  and 
gave  the  following  letter  addressed  to  the 
auctioneer : — "  I  authorise  and  request  you  to  pay 
to  H.  out  of  the  first  proceeds  of  the  sale  of  my 
farming  live  and  dead  stock  (after  satisfying  the 
landlord's  claim  for  rent)  the  sum  of  1687.,  being 
the  amount  due  from  me  to  him,  and  I  hereby 
appropriate  the  sum  of  1687.  out  of  the  proceeds 
of  such  sale  for  the  purpose  of  such  payment  ac- 
cordingly—Dated, August  18,  1884."  G.  then 
owed  other  debts  of  about  1502.  The  goods  were 
sold  by  the  auctioneer  on  August  21,  and  realized 
2767.  gross.  The  net  proceeds  after  payment  of 
rent  amounted  to  1427.  A  receiving  order  was 
made  on  October  22.  The  crops  on  the  farm 
sold  or  paid  for  by  the  incoming  tenant  realised 
1487.,  and  G.'s  furniture  127.  G.  had  no  other 
property.  The  trustee  in  bankruptcy  claimed  the 
1427. :— Held,  that  H.  was  entitled  to  the  1427., 
and  the  transaction  in  question  was  not  a  fraudu- 
lent preference.  Jenkins,  Ex  parte,  GlanriUe, 
In  re,  83  W.  R.  528  ;  2  M.  B.  R.  71— Cave,  J. 


5.  ASSIGNMENTS  OF  PROPERTY. 

Moneys  due  under   Building   Contract.  J— A 

building  contract  provided  that  payments  should 
be  made,  as  the  work  proceeded,  of  such  sums  on 
account  of  the  price  of  the  work  as  should  be 
stated  in  the  certificates  of  an  architect,  snch 
certificates  to  be  given  at  the  architect's  dis- 
cretion at  the  rate  of  80  per  cent,  upon  the 
contract  value  of  the  work  done  at  the  dates 
of  such  certificates,  and  that  the  remaining  20 
per  cent,  should  be  retained  till  the  completion 
of  the  work.  The  contract  em  powered  the  build- 
ing owners,  in  the  event  of  the  contractors  com- 
mitting an  act  of  bankruptcy,  to  discharge  them 
from  the  further  execution  of  the  work  and 
employ  some  other  person  to  complete  it,  and  to 
deduct  the  amount  paid  to  such  other  person  for 
completing  the  same  from  the  contract  price. 
The  contractors  assigned  a  portion  of  the  reten- 


165 


BANKRUPTCY — Invalid  and  Protected  Transactions. 


166 


tioo  moneys,  Le~,  the  price  of  work  done  under 
the  contact  retained  under  the  before-mentioned 
provision,  by  way  of  mortgage  to  secure  a  debt, 
and  notice  of  the  assignment  was  given  to  the 
tailffing  owners.  After  making  such  assignment 
the  contractors  filed  a  petition  for  liquidation, 
the  works  then  remaining  incomplete.  A  trustee 
in  liquidation  and  a  committee  of  inspection 
were  appointed.    The  trustee,  in  pursuance  of  a 
resolution  of  the  committee,  completed  the  work, 
himself  advancing  money  for  that  purpose,  of 
which  an  amount  exceeding  that  of  the  retention 
moneys  assigned  as  aforesaid  was  still  unpaid, 
there  being  no  other  assets  from  which  he  could 
he  recouped  in  respect   thereof.     The  trustee 
and  the  mortgagees  both  claimed  the  amount  of 
the  retention  moneys  assigned  as  aforesaid  from 
the  building  owners.    On  an  interpleader  issue 
to  try  the  title  to  such  moneys : — Held,  that,  in 
the  absence  of  anything  to  show  that  the  build- 
ing owners  had  exercised  the  power  of  taking 
the  work  out  of   the  contractor's  hands,  the 
trustee  must  be  taken  to  have  completed  the 
work  under  the  original  contract  as  trustee  of 
the  contractors'  estate,  and   not  as  a  person 
employed  to  complete  the  work  in  substitution 
for  the  contractors ;  that  the  assignment  of  the 
retention   moneys    held   good   as  against   the 
trortee ;  and  that  the  mortgagees  were  therefore 
entitled  to  succeed.     Tooth  v.  Eallett  (4  L.  R., 
Ch.  242)  distinguished.    Drew  v.  Josolyne,  18 
Q.  R  D.  590 ;  66  L.  J.t  Q.  B.  490  ;  67  L.  T.  5  ; 
S5  W.  R.  670— C.  A. 

A  shipbuilder  agreed  to  build  a  vessel,  the 
price  to  be  paid  in  specified  instalments.  Part 
of  the  work  having  been  done,  but  less  than 
the  value  of  such  part  having  been  paid  to  the 
builder,  he  charged  in  favour  of  a  creditor  the 
instalment  due  to  him  on  the  delivery  of  the 
vcmel.  Before  the  ship  was  completed  he  be- 
came bankrupt.  The  trustee  in  the  bankruptcy 
completed  the  Teasel,  and  in  so  doing  expended 
fern  than  the  amount  which  remained  to  be  paid 
by  the  purchaser  : — Held,  that  the  charge,  being 
■pm  money  which  had  been  already  earned  by 
the  builder,  was  valid  as  against  the  trustee. 
Airirib,  Ex  parte  (22  Ch.  D.  782)  and  Tooth  v. 
IklUtt  (4  L.  R.,  Ch.  242)  distinguished.  Moss, 
£*  parte,  Toward,  In  re,  14  Q.  B.  D.  S10— C.  A. 
Affirming  54  L.  J.,  Q.  B.  126  ;  52  L.  T.  188— D. 

Istarial*  Used  by  Bankrupt  in  Execution  of 
Cmrtneta.]— See  Barter,  Ex  parte,  Walker, 
ia  re,  ante,  coL  134. 

Bsaett  of  Creditors— Bights  of  Trustee  under 
*•*  aid  Official  Beeeiver.]— When  a  debtor 
executes  a  general  assignment  for  the  benefit 
tf  creditors,  and  the  trustee  carries  on  the 
tames  under  the  deed,  receiving  and  making 
pymenta  until  a  receiving  order  is  made  in 
mmkraptcy  on  the  petition  of  certain  creditors 
vao  have  not  signed  the  deed,  and  whose  peti- 
tion is  founded  on  the  general  assignment  as  an 
act  of  bankruptcy,  the  official  receiver  is  entitled 
to  delivery  up  of  the  property  in  the  possession 
*f  the  trustee  under  the  deed,  and  an  account 
fmm  him  of  the  value  of  the  property  of  the 
debtor,  of  which  he  took  possession  and  which  he 
ta  converted,  Le.,  an  account  treating  him  as  a 
trespasser,  or  he  may  adopt  his  actions  and  have 
■a  account  treating  the  trustee  as  his  agent. 
Tttjasa,  Ex  parte,  Riddeough,  In  re,  14 
Q.B.D.25;  33  W.  R.  151 ;  1  M.  B.  B.  258— D. 


See  also  Official  Receiver,  Ex  parte,  Richard*, 
In  re,  32  W.  R.  1001 ;  1  M.  B.  R.  242— Wills,  J. 

A  trader  assigned  substantially  the  whole 
of  his  property  to  a  creditor  in  consideration 
of  a  release  by  the  creditor  of  the  debt.  There 
was  a  secret  verbal  agreement  that  the  assignee 
should  pay  the  assignor's  debts,  and  in  pur- 
suance of  this  the  assignee  paid  out  several 
executions  and  also  paid  some  arrears  of  rent 
due  to  the  landlord  of  the  assignor.  On  it  being 
decided  that  the  deed  was  void  as  against  the 
assignor's  trustee  in  bankruptcy  : — Held,  that 
the  assignee  was  not  entitled  to  payment  in  full 
out  of  the  bankrupt's  estate  of  the  sums  which 
he  had  paid  under  the  agreement,  but  that  he 
could  only  prove  for  them  in  the  bankruptcy. 
Chaplin,  Ex  parte,  Sinclair,  In  re,  26  Ch.  D.  319  ; 
53  L.  J.,  Ch.  732  ;  51  L.  T.  345— C.  A. 

On  20th  August,  1885,  in  pursuance  of  a  resolu- 
tion passed  at  a  meeting  of  creditors,  the  debtor 
executed  a  deed  of  assignment  vesting  the  estate 
in  a  trustee  for  their  benefit.  On  28th  October, 
1885,  a  petition  was  presented  against  the  debtor, 
the  act  of  bankruptcy  alleged  being  the  execu- 
tion of  the  deed ;  and  on  31st  October  the 
trustee  under  the  deed  paid  out  of  moneys  col- 
lected by  him  from  the  assets,  the  sum  of  201.  to 
a  firm  of  solicitors,  being  the  amount  of  their 
bill  of  costs  incurred  in  connexion  with  the 
meeting  of  creditors,  and  collecting  certain  book- 
debts  and  in  preparing  the  deed  of  assignment 
On  the  20th  January,  1886,  a  receiving  order  was 
made  against  the  debtor,  and  subsequently  the 
trustee  under  the  deed  sent  to  the  official  receiver 
a  cheque  for  the  balance  in  his  hands  after  de- 
ducting the  amount  paid  to  his  solicitors,  together 
with  an  account  of  receipts  and  payments  in 
connexion  with  the  estate : — Held,  that  the 
trustee  under  the  deed  must  refund  the  money 
so  paid  to  the  solicitors.  Rawlings,  Ex  parte, 
Forster,  In  re,  58  L.  T.  114  ;  36  W.  B.  144  ;  4 
M.  B.  R.  292— Cave,  J. 


Application  for  re-payment  of  Money 


paid  at  Creditors'  request  before  Receiving 
Order.]— In  June,  1886,  the  debtor  executed  an 
assignment  for  the  benefit  of  his  creditors,  under 
which  the  applicant  was  employed  to  prepare  a 
statement  of  affairs,  and,  it  appearing  that  the 
landlord  was  threatening  a  distress  for  rent,  the 
applicant,  upon  the  instructions  of  the  creditors, 
paid  the  amount  due.  In  July,  1886,  a  receiving 
order  was  made  against  the  debtor,  and  the 
official  receiver  declined  to  repay  the  money  so 
advanced  by  the  applicant  for  the  benefit  of  the 
creditors  without  an  order  of  the  court : — Held, 
that  under  the  circumstances  and  looking  to 
the  fact  that  a  majority  of  the  creditors  in 
number  and  value  were  of  opinion  that  the 
payment  made  by  the  applicant  was  beneficial 
and  should  be  refunded,  repayment  ought  to  be 
allowed,  but  that  the  official  receiver  was  en- 
titled to  deduct  his  costs  of  the  hearing  from 
the  amount.  Lover ing,  Ex  parte,  Ayshford, 
In  re,  35  W.  R.  652  ;  4  M.  B.  R.  164— Cave,  J. 


6.    OTHER  DEALINGS  BY  BANKBTJPT. 

Advance  to  Bon  to  Start  in  Business.]— The 
bankrupt,  in  or  about  1882,  more  than  two  years 
before  bankruptcy,  advanced  to  his  son  E.  the 
sum  of  6502.  to  purchase  building  stock  and  set 
up  in  business.    E.  found  1601.  for  capital,  and 

G  2 


167 


BANKRUPTCY— Invalid  and  Protected  Transactions. 


168 


carried  on  the  business,  and  at  the  date  of  the  | 
bankruptcy  was  possessed  of  stock  and  capital 
to  the  value  of  about  5001. : — Held,  that,  this 
was  not  a  voluntary  settlement  under  s.  47  as 
interpreted  by  sub-s.  3  of  that  section.  Harvey, 
Me  parts,  Player,  In  re,  15  Q.  B.  D.  682 ;  54 
L.  JT,  Q.  B.  564— D. 

Ottof  Chattels.]— In  1866  A.,  soon  after  the 
birth  of  his  son  T.,  purchased  a  pipe  of  wine  for 
his  son,  and  had  it  bottled  and  laid  down  in  his 
cellar,  and  from  that  time  it  remained  intact  in 
the  cellar  and  was  known  in  the  family  and 
amongst  their  friends  as  T.'s  wine.  In  1885  A. 
became  bankrupt : — Held,  that  there  was  not 
sufficient  evidence  of  an  intention  to  make  an 
immediate  present  gift  of  the  wine  to  T.,  and 
that  it  passed  to  the  trustee  in  bankruptcy. 
Ridgway,  Ex  parte,  Ridgtoay,  In  re,  15  Q.  B.  D. 
447  ;  54  L.  J.,Q.  B.  570  ;  34  W.  B.  80  ;  2  M.  B.  B. 
248— Cave,  J. 

Transfer  of  Shares  to  Bon.]— The  bankrupt,  in 
1880,  handed  to  his  son  a  sum  of  money  to  be 
invested  in  shares  in  a  ship,  which  was  so  in- 
vested by  the  son.  The  shares  were  afterwards 
sold  by  the  son  for  4502.,  which  sum  he  handed 
over  to  his  sister  upon  a  sort  of  implied  trust  for 
the  benefit  of  their  father  and  mother : — Held, 
that  handing  the  sum  for  investment  was  a 
conveyance  or  transfer  of  property  within  the 
meaning  of  46  ft  47  Vict  c.  52,  s.  47,  sub-s.  3. 
Harvey,  Eos  parte,  Player,  In  re,  54  L.  J.,  Q.  B. 
553  ;  53  L.  T.  768— D. 

Honey  paid  to  procure  Withdrawal  of  Pro- 
secution.]— A  banking  company  commenced  a 
prosecution  against  a  customer  for  having  ob- 
tained credit  from  them  under  false  pretences, 
which  is,  by  s.  13  of  the  Debtors  Act,  1869, 
made  a  misdemeanor.  At  this  time  the  bank 
had  notice  of  an  act  of  bankruptcy  committed 
by  the  customer.  On  the  day  on  which  the 
summons  was  to  be  heard  by  the  magistrate,  H. 
(whose  wife  was  an  aunt  of  the  customer's 
wife)  signed  an  undertaking  that,  if  the  magis- 
trate would  allow  the  summons  to  be  withdrawn, 
he  would  pay  the  bank  the  sum  which  the 
customer  had  obtained  from  them  by  the  false 
pretences.  An  application  was  made  to  the 
magistrate  by  the  customer's  solicitor  to  allow 
the  summons  to  be  withdrawn.  The  appli- 
cation was  assented  to  by  the  bank's  solicitor, 
and  was  granted  by  the  magistrate.  H.  then 
paid  the  money  to  the  bank.  The  bank  manager 
believed  that  H.  was  paying  the  money  out  of 
his  own  Docket.  The  customer  was  soon  after- 
wards adjudicated  a  bankrupt,  upon  the  act  of 
bankruptcy  of  which  the  bank  had  notice.  The 
trustee  in  the  bankruptcy  discovered  that  the 
money  which  H.  had  paid  to  the  bank  had  been 
previously  handed  to  him  by  the  bankrupt's 
wife,  she  having,  with  the  bankrupt's  knowledge, 
taken  it  for  the  purpose  of  paying  the  bank  out 
of  a  bag  of  money  belonging  to  the  bankrupt : — 
Held,  that,  the  consideration  for  the  payment  to 
the  bank  being  the  stifling  of  a  prosecution,  there 
was  no  legal  consideration,  ana  that,  though  H., 
being  in  pari  delicto,  could  not  have  recovered 
the  money  from  the  bank,  the  trustee,  to  whom 
by  virtue  of  the  relation  back  of  his  title  to  the 
act  of  bankruptcy,  the  money  really  belonged, 
could  recover  it  Caldecott,  Ex  parte  (4  Ch.  D. 
150)  distinguished.  Wolverhamptonand  Stafford- 


shire Banking  Company,  Ex  parte,  Campbell, 
In  re,  14  Q.  B.  D.  32  ;  33  W.  B.  642  ;  1  M.  B.  B. 
261— D. 

Money  paid  to  Avoid  Arrest  ]— Where  a  bank- 
rupt, after  the  making  of  the  receiving  order, 
pays  money  out  of  his  estate  to  avoid  arrest 
under  an  order  of  commitment  made  prior  to 
the  date  of  the  receiving  order  for  default 
in  payment  of  an  instalment  of  a  judgment 
debt,  the  money  so  paid  can  be  recovered  by 
the  trustee  in  bankruptcy.  Stewart,  Ex  parte, 
Ryley,  In  re,  15  Q.  B.  D.  329 ;  54  L.  J.,  Q.  B. 
420  ;  33  W.  B.  656 ;  2  M.  B.  B.  171— Cave,  J. 
Compare  Manning,  In  re,  30  Ch.  D.  480 ;  34 
W.  B.  Ill— C.  A. 

Money  paid  by  Debtor  to  Solicitor  to  opposs 
Petition.] — On  the  presentation  of  a  bankruptcy 
petition  against  a  debtor,  and  an  order  for  the 
appointment  of  an  interim  receiver  having  been 
made,  such  debtor  instructed  his  solicitor  to 
oppose  the  petition,  and  to  move  to  rescind  the 
interim  order,  and  then  paid  to  such  solicitor  at 
his  request  251.  on  account  of  costs  of  counsel's 
fees  and  other  expenses  for  that  purpose.  The 
application  to  rescind  the  interim  order  was  dis- 
missed, and  the  debtor  was  subsequently  adjudi- 
cated bankrupt  The  trustee  in  the  bankruptcy 
thereupon  claimed  the  25Z.  from  the  solicitor 
as  money  received  by  him  from  the  debtor  with 
knowledge  of  the  act  of  bankruptcy  on  which 
the  receiving  order  was  made  : — Held,  that  the 
application  of  the  trustee  must  be  refused ;  that 
it  was  right  that  a  debtor  should  have  legal 
assistance  and  advice  against  a  bankruptcy 
petition;  and  that  a  debtor  would  be  prac- 
tically defenceless  if  money  paid  to  a  solicitor 
for  services  rendered  on  such  an  occasion  could 
afterwards  be  recovered  by  the  trustee.  Payne, 
Ex  parte,  Sinclair,  In  re,  15  Q.  B.  D.  616; 
53  L.  T.  767  ;  2  M.  B.  B.  255— Cave,  J. 


7.  DEALINGS  WITH   PBOPEBTY  BT 

AGENT. 

With  regard  to  dealing  with  a  debtor's  pro- 
perty after  an  act  of  bankruptcy  has  been  com- 
mitted, an  agent  is  on  the  same  footing  as  other 
persons.  CHbson,  Ex  parte,  Lamb,  In  re,  55  L. 
T.  817— D. 

Payment  by  Agent— Act  of  Bankruptcy  of 
Principal— Liability  to  Bepay^to  Trustee.]— An 
agent,  who,  in  obedience  to  the  previous  direc- 
tion of  his  principal,  pays  away  money  of  the 
Erincipal  which  is  in  his  hands,  knowing  before 
e  makes  the  payment  (though  he  did  not  know 
when  he  received  the  money)  that  the  payment 
will  when  completed  constitute  an  act  of  bank- 
ruptcy on  the  part  of  the  principal,  is  not  liable 
to  the  trustee  in  the  subsequent  bankruptcy  of 
the  principal  for  the  money  so  paid  away.  The 
trustee  could  recover  the  money  from  the  agent 
only  on  the  ground  that  he  had  paid  away  the 
money  of  the  trustee,  and  in  such  a  case  the 
money  would  become  the  trustee's  money  only 
on  the  completion  of  the  act  of  bankruptcy 
to  which  his  title  would  relate  back,  Le.,  not 
until  after  the  money  had  left  the  agent's 
hands.  Jffielder,  Ex  parte,  Lewie,  In  re,  24 
Ch.  D.  S89 ;  53  L.  f.,  Ch.  106 ;  49  L.  T.  612 
— C.  A. 


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166 


tion  moneys,  ie.,  the  price  of  work  done  under 
the  contract  retained  under  the  before-mentioned 
provision,  by  way  of  mortgage  to  secure  a  debt, 
and  notice  of  the  assignment  was  given  to  the 
building  owners.   After  making  such  assignment 
the  contractors  filed  a  petition  for  liquidation, 
the  works  then  remaining  incomplete.  A  trustee 
in  liquidation  and  a  committee  of  inspection 
were  appointed.    The  trustee,  in  pursuance  of  a 
resolntion  of  the  committee,  completed  the  work, 
himself  advancing  money  for  that  purpose,  of 
which  an  amount  exceeding  that  of  the  retention 
moneys  assigned  as  aforesaid  was  still  unpaid, 
there  being  no  other  assets  from  which  he  could 
be  recouped  in  respect   thereof.    The  trustee 
&nd  the  mortgagees  both  claimed  the  amount  of 
the  retention  moneys  assigned  as  aforesaid  from 
the  building  owners.    On  an  interpleader  issue 
to  try  the  title  to  such  moneys : — Held,  that,  in 
the  absence  of  anything  to  show  that  the  build- 
ing owners  had  exercised  the  power  of  taking 
the  work  out  of   the  contractor's  hands,  the 
trustee  must  be  taken  to  have  completed  the 
work  under  the  original  contract  as  trustee  of 
the  contractors'  estate,  and   not  as  a  person 
employed  to  complete  the  work  in  substitution 
for  the  contractors  ;  that  the  assignment  of  the 
retention   moneys   held   good   as  against   the 
trustee ;  and  that  the  mortgagees  were  therefore 
entitled  to  succeed.     Tooth  v.  HaXlett  (4  L.  R., 
Ch.  242)  distinguished.    Drew  v.  Josilyne,  18 
a  a  D.  590  ;  56  L.  J.,  Q.  B.  490  ;  67  L.  T.  6  ; 
So  W.  B.  670— C.  A. 

A  shipbuilder  agreed  to  build  a  vessel,  the 
price  to  be  paid  in  specified  instalments.  Part 
of  the  work  having  been  done,  but  less  than 
the  value  of  such,  part  having  been  paid  to  the 
boilder,  he  charged  in  favour  of  a  creditor  the 
instalment  due  to  him  on  the  delivery  of  the 
Teasel  Before  the  ship  was  completed  he  be- 
came bankrupt.  The  trustee  in  the  bankruptcy 
completed  the  vessel,  and  in  so  doing  expended 
less  than  the  amount  which  remained  to  be  paid 
by  the  purchaser  : — Held,  that  the  charge,  being 
spun  money  which  had  been  already  earned  by 
the  builder,  was  valid  as  against  the  trustee. 
KckolU,  Ex  parte  (22  Ch.  D.  782)  and  Tooth  v. 
IhUHt  (4  L.  B.,  Ch.  242)  distinguished.  Mom, 
Er  parte,  Toward,  In  re,  14  Q.  B.  D.  310— C.  A. 
Affirming  54  L.  J.,  Q.  B.  126  ;  52  L.  T.  188— D. 

Materials  Used  by  Bankrupt  in  Execution  of 

Cwtracti.] — See    Barter,  Ex  parte,    Walker, 
is  re,  ante,  coL  134. 

Bsaett  of  Creditors— Bights  of  Trustee  under 
fcoi  and  OfBLeial  Beeeiver.] — When  a  debtor 
executes  a  general  assignment  for  the  benefit 
of  creditors,  and  the  trustee  carries  on  the 
tames  under  the  deed,  receiving  and  making 
payments  until  a  receiving  order  is  made  in 
bankruptcy  on  the  petition  of  certain  creditors 
who  have  not  signed  the  deed,  and  whose  peti- 
tion is  founded  on  the  general  assignment  as  an 
set  of  bankruptcy,  the  official  receiver  is  entitled 
to  delivery  up  of  the  property  in  the  possession 
of  the  trustee  under  the  deed,  and  an  account 
bom  him  of  the  value  of  the  property  of  the 
debtor,  of  which  he  took  possession  and  which  he 
ta  converted,  Le.,  an  account  treating  him  as  a 
trespasser,  or  he  may  adopt  his  actions  and  have 
an  account  treating  the  trustee  as  his  agent 
Tangkan,  Ex  parte,  Riddeough,  In  re,  14 
Q. B. D. 25;  33  W.  B.  151 ;  1  M.  B.  B.  258— D. 


See  also  Official  Receiver,  Ex  parte,  Richards, 
In  re,  32  W.  B.  1001 ;  1  M.  B.  B.  242— Wills,  J. 

A  trader  assigned  substantially  the  whole 
of  his  property  to  a  creditor  in  consideration 
of  a  release  by  the  creditor  of  the  debt.  There 
was  a  secret  verbal  agreement  that  the  assignee 
should  pay  the  assignor's  debts,  and  in  pur- 
suance of  this  the  assignee  paid  out  several 
executions  and  also  paid  some  arrears  of  rent 
due  to  the  landlord  of  the  assignor.  On  it  being 
decided  that  the  deed  was  void  as  against  the 
assignor's  trustee  in  bankruptcy  : — Held,  that 
the  assignee  was  not  entitled  to  payment  in  full 
out  of  the  bankrupt's  estate  of  the  sums  which 
he  had  paid  under  the  agreement,  but  that  he 
could  only  prove  for  them  in  the  bankruptcy. 
Chaplin,  Ex  parte,  Sinclair,  In  re,  26  Ch.  D.  319  ; 
53  L.  J.,  Ch.  732 ;  51  L.  T.  345— C.  A. 

On  20th  August,  1885,  in  pursuance  of  a  resolu- 
tion passed  at  a  meeting  of  creditors,  the  debtor 
executed  a  deed  of  assignment  vesting  the  estate 
in  a  trustee  for  their  benefit  On  28th  October, 
1885,  a  petition  was  presented  against  the  debtor, 
the  act  of  bankruptcy  alleged  being  the  execu- 
tion of  the  deed;  and  on  31st  October  the 
trustee  under  the  deed  paid  out  of  moneys  col- 
lected by  him  from  the  assets,  the  sum  of  202.  to 
a  firm  of  solicitors,  being  the  amount  of  their 
bill  of  costs  incurred  in  connexion  with  the 
meeting  of  creditors,  and  collecting  certain  book- 
debts  and  in  preparing  the  deed  of  assignment 
On  the  20th  January,  1886,  a  receiving  order  was 
made  against  the  debtor,  and  subsequently  the 
trustee  under  the  deed  sent  to  the  official  receiver 
a  cheque  for  the  balance  in  his  hands  after  de- 
ducting the  amount  paid  to  his  solicitors,  together 
with  an  account  of  receipts  and  payments  in 
connexion  with  the  estate  : — Held,  that  the 
trustee  under  the  deed  must  refund  the  money 
so  paid  to  the  solicitors.  Rawlings,  Ex  parte, 
Forster,  In  re,  58  L.  T.  114  ;  86  W.  B.  144  ;  4 
M.  B.  R.  292— Cave,  J. 

Application  for  re-payment  of  Money 

paid  at  Creditors'  request  before  Receiving 
Order.]— In  June,  1886,  the  debtor  executed  an 
assignment  for  the  benefit  of  his  creditors,  under 
which  the  applicant  was  employed  to  prepare  a 
statement  of  affairs,  and,  it  appearing  that  the 
landlord  was  threatening  a  distress  for  rent,  the 
applicant,  upon  the  instructions  of  the  creditors, 
paid  the  amount  due.  In  July,  1886,  a  receiving 
order  was  made  against  the  debtor,  and  the 
official  receiver  declined  to  repay  the  money  so 
advanced  by  the  applicant  for  the  benefit  of  the 
creditors  without  an  order  of  the  court : — Held, 
that  under  the  circumstances  and  looking  to 
the  fact  that  a  majority  of  the  creditors  in 
number  and  value  were  of  opinion  that  the 
payment  made  by  the  applicant  was  beneficial 
and  should  be  refunded,  repayment  ought  to  be 
allowed,  but  that  the  official  receiver  was  en- 
titled to  deduct  his  costs  of  the  hearing  from 
the  amount.  Lowering,  Ex  parte,  Ayshford, 
In  re,  35  W.  B.  652  ;  4  M.  B.  B.  164— Cave,  J. 


6.    OTHBB  DEALINGS  BY  BANKBTJPT. 

Advance  to  Bon  to  Start  in  Business.] —The 
bankrupt,  in  or  about  1882,  more  than  two  years 
before  bankruptcy,  advanced  to  his  son  E.  the 
sum  of  6501.  to  purchase  building  stock  and  set 
up  in  business.    E.  found  150/.  for  capital,  and 

G  2 


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168 


carried  on  the  business,  and  at  the  date  of  the  | 
bankruptcy  was  possessed  of  stock  and  capital 
to  the  value  of  about  6002.: — Held,  that,  this 
was  not  a  voluntary  settlement  under  s.  47  as 
interpreted  by  sub-s.  3  of  that  section.  Harvey r, 
Ex  part;  Player,  In  re,  15  Q.  B.  D.  682 ;  54 
L.  f.,  Q.  B.  564— D. 

Giftof  Chattels.]— In  1866  A.,  soon  after  the 
birth  of  his  son  T.,  purchased  a  pipe  of  wine  for 
his  son,  and  had  it  Dottled  and  laid  down  in  his 
cellar,  and  from  that  time  it  remained  intact  in 
the  cellar  and  was  known  in  the  family  and 
amongst  their  friends  as  T.'s  wine.  In  1886  A. 
became  bankrupt : — Held,  that  there  was  not 
sufficient  evidence  of  an  intention  to  make  an 
immediate  present  gift  of  the  wine  to  T.,  and 
that  it  passed  to  the  trustee  in  bankruptcy. 
Ridgway,  Ess  parte,  Hidgtoay,  In  re,  15  Q.  B.  D. 
447  ;  54  L.  J.,Q.  B.  570  ;  34  W.  B.  80  ;  2  M.B.B. 
248— Cave,  J. 

Transfer  of  Shares  to  Son.] — The  bankrupt,  in 
1880,  handed  to  his  son  a  sum  of  money  to  be 
invested  in  shares  in  a  ship,  which  was  so  in- 
vested by  the  son.  The  shares  were  afterwards 
sold  by  the  son  for  450/.,  which  sum  he  handed 
over  to  his  sister  upon  a  sort  of  implied  trust  for 
the  benefit  of  their  father  and  mother : — Held, 
that  handing  the  sum  for  investment  was  a 
conveyance  or  transfer  of  property  within  the 
meaning  of  46  &  47  Vict  c.  62,  s.  47,  sub-s.  3. 
Harvey,  Em  parte,  Player,  In  re,  54  L.  J.,  Q.  B. 
553  ;  53  L.  T.  768— D. 

Money  paid  to  procure  Withdrawal  of  Pro- 
secution.]— A  banking  company  commenced  a 
prosecution  against  a  customer  for  having  ob- 
tained credit  from  them  under  false  pretences, 
which  is,  by  s.  18  of  the  Debtors  Act,  1869, 
made  a  misdemeanor.  At  this  time  the  bank 
had  notice  of  an  act  of  bankruptcy  committed 
by  the  customer.  On  the  day  on  which  the 
summons  was  to  be  heard  by  the  magistrate,  H. 
(whose  wife  was  an  aunt  of  the  customer's 
wife)  signed  an  undertaking  that,  if  the  magis- 
trate would  allow  the  summons  to  be  withdrawn, 
he  would  pay  the  bank  the  sum  which  the 
customer  had  obtained  from  them  by  the  false 
pretences.  An  application  was  made  to  the 
magistrate  by  the  customer's  solicitor  to  allow 
the  summons  to  be  withdrawn.  The  appli- 
cation was  assented  to  by  the  bank's  solicitor, 
and  was  granted  by  the  magistrate.  H.  then 
paid  the  money  to  the  bank.  The  bank  manager 
believed  that  H.  was  paying  the  money  out  of 
his  own  pocket.  The  customer  was  soon  after- 
wards adjudicated  a  bankrupt,  upon  the  act  of 
bankruptcy  of  which  the  bank  had  notice.  The 
trustee  in  the  bankruptcy  discovered  that  the 
money  which  H.  had  paid  to  the  bank  had  been 
previously  handed  to  him  by  the  bankrupt's 
wife,  she  having,  with  the  bankrupt's  knowledge, 
taken  it  for  the  purpose  of  paying  the  bank  out 
of  a  bag  of  money  belonging  to  the  bankrupt : — 
Held,  that,  the  consideration  for  the  payment  to 
the  bank  being  the  stifling  of  a  prosecution,  there 
was  no  legal  consideration,  ana  that,  though  H., 
being  in  pari  delicto,  could  not  have  recovered 
the  money  from  the  bank,  the  trustee,  to  whom 
by  virtue  of  the  relation  back  of  his  title  to  the 
act  of  bankruptcy,  the  money  really  belonged, 
could  recover  it.  Caldeeott,  Ex  parte  (i  Ch.  D. 
150)  distinguished.  Wolvfirhampt<m  and  Stafford- 


shire Banking  Company,  Ex  parte,  Campbell, 
In  re,  14  Q.  B.  D.  32  ;  33  W.  R.  642  ;  1  M.  B.  B. 
261— D. 

Money  paid  to  Avoid  Arrest] — Where  a  bank- 
rupt, after  the  making  of  the  receiving  order, 
pays  money  out  of  his  estate  to  avoid  arrest 
under  an  order  of  commitment  made  prior  to 
the  date  of  the  receiving  order  for  default 
in  payment  of  an  instalment  of  a  judgment 
debt,  the  money  so  paid  can  be  recovered  by 
the  trustee  in  bankruptcy.  Stewart,  Ex  parte, 
Ryley,  In  re,  15  Q.  B.  D.  329 ;  54  L.  J.,  Q.  B. 
420  ;  33  W.  R.  666 ;  2  M,  B.  R.  171— Cave,  J. 
Compare  Manning,  In  re,  30  Ch.  D.  480 ;  34 
W.  R.  Ill— C.  A. 

Honey  paid  by  Debtor  to  Solicitor  to  oppose 
Petition.] — On  the  presentation  of  a  bankruptcy 
petition  against  a  debtor,  and  an  order  for  the 
appointment  of  an  interim  receiver  having  been 
made,  such  debtor  instructed  his  solicitor  to 
oppose  the  petition,  and  to  move  to  rescind  the 
interim  order,  and  then  paid  to  such  solicitor  at 
his  request  257.  on  account  of  costs  of  counsel's 
fees  and  other  expenses  for  that  purpose.  The 
application  to  rescind  the  interim  order  was  dis- 
missed, and  the  debtor  was  subsequently  adjudi- 
cated bankrupt.  The  trustee  in  the  bankruptcy 
thereupon  claimed  the  25Z.  from  the  solicitor 
as  money  received  by  him  from  the  debtor  with 
knowledge  of  the  act  of  bankruptcy  on  which 
the  receiving  order  was  made  :— Held,  that  the 
application  of  the  trustee  must  be  refused ;  that 
it  was  right  that  a  debtor  should  have  legal 
assistance  and  advice  against  a  bankruptcy 
petition ;  and  that  a  debtor  would  be  prac- 
tically defenceless  if  money  paid  to  a  solicitor 
for  services  rendered  on  such  an  occasion  could 
afterwards  be  recovered  by  the  trustee.  Payne, 
Ex  parte,  Sinclair,  In  re,  15  Q.  B.  D.  616; 
53  L.  T.  767  ;  2  M.  B.  B.  255— Cave,  J. 


7.  DEALINGS  WITH  PROPERTY  BT 

AGENT. 

With  regard  to  dealing  with  a  debtor's  pro- 
perty after  an  act  of  bankruptcy  has  been  com- 
mitted, an  agent  is  on  the  same  footing  as  other 
? arsons.  Gibson,  Ex  parte,  Lamb,  In  re,  55  L. 
.  817— D. 

Payment  by  Agent — Act  of  Bankruptcy  of 
Principal— Liability  to  Repay^to  Trustee.]-- An 
agent,  who,  in  obedience  to  the  previous  direc- 
tion of  his  principal,  pays  away  money  of  the 
Erincipal  which  is  in  his  hands,  knowing  before 
e  makes  the  payment  (though  he  did  not  know 
when  he  received  the  money)  that  the  payment 
will  when  completed  constitute  an  act  of  bank- 
ruptcy on  the  part  of  the  principal,  is  not  liable 
to  the  trustee  in  the  subsequent  bankruptcy  of 
the  principal  for  the  money  so  paid  away.  The 
trustee  could  recover  the  money  from  the  agent 
only  on  the  ground  that  he  had  paid  away  the 
money  of  the  trustee,  and  in  such  a  case  the 
money  would  become  the  trustee's  money  only 
on  the  completion  of  the  act  of  bankruptcy 
to  which  his  title  would  relate  back,  Le.,  not 
until  after  the  money  had  left  the  agent's 
hands.  Helder,  Ex  parte,  Lewi*,  In  re,  24 
Ch.  D.  SS9 ;  63  L.  J.,  Ch.  106 ;  49  L.  T.  612 
— C.  A. 


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170 


Ftyaemt  by  Bankrupt  to  Creditor'!  Agent— 
UssUay  of  Agent]— Pending  the  hearing  of  a 
bsnkraptcy  petition,  and  with  notice  of  the  act 
of  bankniptcy  on  which  it  was  founded,  the  solici- 
tor of  the  petitioning  creditor,  as  his  agent,  re- 
ceived from  the  debtor  various  stuns  of  money 
as  consideration  for  successive  adjournments  ox 
the  bearing  of  the  petition,  and  these  sums  he 
paid  over,  or  accounted  for  to  his  client  (the 
petitioning  creditor).  Afterwards  an  adjudica- 
tion was  made  on  the  petition  :— Held,  that  the 
•abator  having  received  the  money  with  notice 
of  the  act  of  bankruptcy  to  which  the  title  of 
the  trustee  related  back,  the  payment  by  him 
wis  a  wrongful  act,  and  he  was  liable  to  repay 
the  money  to  the  trustee,  and  was  not  dis- 
charged by  the  payment  to  his  own  principal. 
Edwerdt,  Ex  parte,  Chapman,  In  re,  IS  Q.  B. 
D.  747 ;  51  L.  T.  881 ;  33  W.  B.  268  ;  1  M.  B. 
B.238-C.  A. 

XH    COMPOSITION,  LIQUIDATION,  AND 
SCHEMES  07  ARRANGEMENT. 

1.  Under  the  Bankruptcy  Act,  1883. 
1  Under  Prior  Statutes. 

1.  UNDER  THE   BANKRUPTCY  ACT,  1883. 

General  Principles  —  Approval  of  Court  — 
wishes  of  Creditors.] — In  determining  whether 
to  approve  a  scheme  of  arrangement  of  the 
sfsirs  of  a  debtor,  which  has  been  accepted  by 
his  creditors  under  the  provisions  of  &  18  of  the 
Bankruptcy  Act,  1883,  the  Court  must  form  its 
own  judgment  whether  the  terms  of  the  scheme 
sit  reasonable  or  calculated  to  benefit  the  general 
body  of  creditors,  and  must  not  be  influenced  by 
the  wishes  of  the  majority  of  the  creditors. 
Seed,  Ex  parte,  Reed,  In  re,  17  Q.  B.  D.  244  ; 
65  L.  J.,  Q.  B.  244  ;  34  W.  R.  493  ;  3  M.  B.  B. 
»-C.A. 

By  s.  18,  sub-6.  6  of  the  Bankruptcy  Act,  1883, 
it  is  provided  that  if  any  such  facts  are  proved 
si  would  under  this  Act  justify  the  court  in  re- 
futing, qualifying,  or  suspending  the  debtor's 
discharge,  the  court  may,  in  its  discretion,  refuse 
to  approve  the  composition  or  scheme : — Held, 
on  an  appeal  by  the  petitioning  creditor,  from  an 
older  of  the  court  approving  a  scheme  of  arrange- 
Bent,  that  it  is  in  the  discretion  of  the  court 
whether  it  will  refuse  to  approve  a  scheme  or 
not ;  that  all  matters  must  be  duly  weighed  by 
the  court,  and  discretion  exercised,  and  that  the 
derision  of  the  court  will  not  be  set  aside  on 

real  unless  it  is  manifestly  wrong.    Ledger, 
parte,  Postlethwaite,  In  re,  3M.B.B.  169 
-C.A. 

The  registrar,  in  deciding  whether  he  will  or 
will  not  approve  a  composition  or  scheme  of 
anaagement  accepted  by  the  creditors  of  a 
bankrupt,  is  exereising.a  judicial  discretion,  and 
the  Court  of  Appeal  will  not  readily  set  aside 
his  order.  It  is  the  duty  of  the  registrar  to  form 
his  own  judgment,  and  not  to  be  influenced  by 
the  wishes  of  the  creditors.  Campbell,  Ex  parte, 
Wattaee,  In  re,  15  Q.  B.  D.  213  ;  54  L.  J.,  Q.  B. 
»2  ;  53  L.  T.  208  ;  2  M.  B.  R.  167— C.  A. 

In  the  exercise  of  his  discretion  as  to  the 
approval  of  a  composition  or  scheme,  the  regis- 
ter ought  to  consider  both  the  interest  of  the 
oeditojs  and  the  conduct  of  the  debtor,  and  if  it 
is  Manifest  that  the  composition  or  scheme  is  the 
best  thing  for  the  creditors,  the  registrar  is  not 


bound  to  refuse  to  approve  of  it  because  the 
debtor  has  been  guilty  of  offences  under  s.  28, 
sub-s.  3,  of  the  act.  Eearsleg,  Ex  parte,  Oenese, 
In  re,  18  Q.  B.  D.  168  ;  56  L.  J.,  Q.  B.  220 ; 
56  L.  T.  79  ;  3  M.  B.  B.  274—0.  A. 

In  determining  whether  a  composition  accepted 
by  creditors  under  the  provisions  of  s.  18  is 
reasonable,  the  court  must  exercise  its  own  judg- 
ment, though  it  will  take  into  account  the  fact 
that  the  creditors  are  mainly  interested  in  the 
question.  The  court  must  have  regard  to  the 
debtor's  assets  and  liabilities,  and  if,  for  a  large 
proportion  of  the  debts  set  down  in  his  statement 
of  affairs,  proofs  have  not  been  tendered,  or  if 
the  court  considers  that  the  proofs  which  have 
been  tendered  require  to  be  investigated  by  a 
trustee,  the  court  ought  to  decline  to  approve  of 
the  composition.  Hogere,  Ex  parte,  Rogers,  In 
re,  13  Q.  B.  D.  438  ;  33  W.  R.  354  \  1  M.  B.  R. 
159— D. 

The  county  court  judge,  before  giving  his 
approval  to  a  composition  or  scheme,  which  has 
been  accepted  by 'the  majority  of  creditors, 
should  consider  not  only  whether  or  not  the 
creditors  are  likely  to  be  benefited  by  it,  but 
also  the  requirements  of  commercial  morality  by 
examining  into  the  conduct  of  the  debtor  with 
reference  to  trading.  A.  carried  on  business 
and  became  bankrupt.  After  two  yean  A. 
started  in  business  again  without  capital,  but  took 
into  partnership  a  man  who  had  some  capital. 
The  firm  tidied,  and  paid  their  creditors  8*.  8^4. 
in  the  pound.  Both  partners  applied  for  their 
discharge,  but  the  court  refused  to  discharge  A., 
as  he  had  committed  certain  offences  under  the 
Bankruptcy  Act.  Two  years  afterwards,  A. 
offered  his  creditors  a  composition  of  1*.  in  the 
pound,  all  the  estate  to  be  handed  over  to  him, 
and  the  bankruptcy  annulled ;  the  majority  of 
the  creditors  accepted  the  offer,  but  the  county 
court  judge  refused  his  approval: — Held,  that 
the  decision  was  correct,  and  that  the  approval 
must  be  refused.  McTear,  Ex  parte,  MoTear, 
In  re,  59  L.  T.  150  ;  5  M.  B.  R.  182— D. 


Court  of  Appeal  overruling  Judge  below.] 


— The  Court  of  Appeal  will  not  overrule  the 
exercise  of  the  discretion  of  the  judge  of  first 
instance  as  to  the  approval  of  a  composition  or 
scheme  unless  clearly  satisfied  that  he  was  wrong. 
Rogers,  Ex  parte,  Rogers,  In  re,  supra  ;  Reed, 
Ex  parte,  Reed,  In  re,  supra;  KearsUy,  Em 
parte,  Qenese,  In  re,  supra,  and  cp.  cases,  post, 
cols.  182,  182. 

"  Injustice  to  Creditors."] — A  scheme  of 

arrangement  confirmed  by  the  creditors  on  an 
exaggerated,  but  not  fraudulent,  valuation  of 
certain  property  of  the  debtor  by  which  twenty 
shillings  in  the  pound  was  to  be  paid  out  of  such 
property,  and  it  was  assigned  to  trustees  for  the 
purpose  : — Held,  on  its  appearing  that  the  pro- 
perty did  not  realise  enough  to  pay  the  composi- 
tion, that  the  scheme  could  not "  proceed  without 
injustice  to  the  creditors  "  within  the  meaning 
of  a  18,  sub-s.  11,  of  the  Bankruptcy  Act,  and 
the  debtor  was  adjudicated  bankrupt.  Moon, 
Ex  parte,  Moon,  In  re,  19  Q.  B.  D.  669  ;  56  L.  J., 
Q.  B.  496  ;  36  W.  R.  743  ;  4  M.  B.  R.  263— C.  A. 


Sale  of  Assets  without  the  Jurisdiction.] 


— The  debtors  were  merchants  having  a  house 
in  England  and  a  house  in  South  America. 
Assets  of  large  amount,  forming  the  principal 


1 


171 


BANKRUPTCY — Composition,  Liquidation,  dc. 


172 


part  of  the  estate,  were  in  South  America,  with- 
out the  jurisdiction.  A  scheme  was  proposed 
for  the  sale  of  these  assets  to  one  of  the  partners 
who  resided  in  South  America  for  about  their 
estimated  value,  such  partner  agreeing  to  pay 
the  purchase-money  by  quarterly  instalments 
extending  over  four  years.  Under  the  scheme 
the  trustee  was  to  insure  the  purchaser's  life  for 
about  one-sixth  of  the  amount  payable,  but 
there  was  no  other  provision  as  to  security. 
The  scheme  was  recommended  by  the  committee 
of  inspection,  who  were  creditors  for  a  large 
amount,  and  by  an  accountant  who,  at  their 
instance,  had  gone  to  South  America  and  ex- 
amined the  affairs  of  the  house  there.  The 
official  receiver  also  made  a  report  in  favour  of 
the  proposal.  The  county  court  judge  refused  to 
approve  of  the  scheme  : — Held,  that  the  judge 
had  exercised  his  discretion  wrongly,  and  that 
the  scheme  ought  to  be  approved  by  the  court 
as  being  reasonable  and  for  the  benefit  of  the 
general  body  of  the  creditors.  Smith,  Ex  parte, 
Staniar,  In  re,  20  Q.  B.  D.  544  ;  68  L.  T.  884  ; 
36  W.  R.  608 ;  6  M.  B.  B.  67— D. 

—  Reasonableness— Attempt  to  give  Trus- 
tee under  Scheme  Powers  of  Trustee  in  Bank- 
ruptcy.]— A  scheme  of  arrangement  of  the 
affairs  of  a  debtor  provided  that  his  property, 
which  would  become  divisible  among  his  credi- 
tors if  he  were  adjudged  a  bankrupt,  should  vest 
in  a  trustee  to  be  appointed  by  the  creditors, 
and  that  the  trustee  should  administer  the  pro- 
perty under  the  supervision  of  a  committee  of 
inspection  in  the  like  manner,  and  with  the  like 
powers  and  duties,  and  subject  to  the  like  con- 
ditions in  all  respects,  as  though  the  debtor  had 
been  adjudged  bankrupt,  and  the  trustee  had 
been  appointed  trustee  in  the  bankruptcy ;  and 
that  the  provisions  of  s.  27  of  the  Bankruptcy 
Act,  1883,  relating  to  the  discovery  of  the  pro- 
perty of  a  bankrupt,  should,  so  far  as  the  same 
were  applicable,  apply  to  the  proceedings  under 
the  scheme  : — Held,  that,  inasmuch  as  s.  27  does 
not  apply  to  a  scheme  of  arrangement  under 
8. 18,  and  cannot  by  agreement  between  a  debtor 
and  his  creditors  be  incorporated  in  such  a 
scheme,  the  scheme  gave  the  creditors  no  greater 
advantage  than  they  would  have  had  in  a  bank- 
ruptcy, while  it  deprived  them  of  some  of  the 
powers  which  they  would  have  had,  and  of  the 
control  of  the  court  in  the  administration  of  the 
estate.  That,  consequently,  the  scheme  was 
neither  reasonable  nor  calculated  to  benefit  the 
general  body  of  creditors,  and  ought  not  to  be 
approved  by  the  court.  Bischoffsheim,  Ex  parte, 
Aylmer,  In  re,  19  Q.  B.  D.  33  ;  66  L.  J.,  Q.  B. 
460 ;  56  L.  T.  801 ;  35  W.  R.  532  ;  4  M.  B.  R. 
152— C.  A. 

The  provisions  of  sub-s.  6  of  s.  28  of  the  Bank- 
ruptcy Act,  1883,  cannot,  by  agreement  between 
a  debtor  and  his  creditors,  be  incorporated  into 
a  scheme  of  arrangement  of  the  debtor's  affairs 
under  s.  18,  nor  can  a  jurisdiction,  similar  to 
that  which  is  conferred  on  the  court  by  sub-s.  6 
in  the  case  of  a  bankruptcy,  be  given  to  the 
court  by  agreement  between  the  debtor  and  his 
creditors  in  the  case  of  a  scheme  of  arrangement. 
Bischqffsheim,  Ex  parte,  Aylmer,  In  re,  20 
Q.  B.  D.  258  ;  57  L.  J.,  Q.  B.  168  ;  36  W.  R.  231 
— C.A. 

A  scheme  of  arrangement  of  a  debtor's  affairs 
accepted  by  his  creditors  under  s.  18,  provided 
that  the  debtor  should,  prior  to  the  approval  of 


the  scheme,  consent  to  judgment  being  entered 
against  him  by  the  trustee  under  the  scheme  for 
the  full  amount  of  the  debts  proveable  there* 
under,  such  judgment  to  have  the  same  effect, 
and  to  be  enforceable  in  the  like  manner  and  to 
the  like  extent,  as  though  the  debtor  had  been 
adjudged  bankrupt  under  the  proceedings,  and 
the  court  had  granted  him  an  order  of  discharge 
conditional  upon  his  consenting  to  judgment 
being  entered  against  him  by  the  trustee,  and 
such  judgment  had  been  entered  accordingly  :— 
Held,  that,  as  the  judgment  could  not  be  en- 
forced either  at  common  law  or  under  the  act, 
or  by  agreement,  the  scheme,  so  far  as  it  par- 
ported  to  give  the  judgment,  was  illusory  and  of 
no  effect,  and  that  it  ought  not  to  be  approved 
by  the  court.    lb. 

Provision  for  Debtor's  Discharge.]— A 

scheme  for  the  arrangement  of  the  affairs  of 
debtors  who  had  presented  a  bankruptcy  peti- 
tion, duly  assented  to  by  the  creditors,  as  pro- 
vided by  s.  18  of  the  Bankruptcy  Act,  1883, 
contained,  inter  alia,  provisions  for  the  appoint- 
ment of  a  trustee  and  a  committee  of  inspection, 
and  also  a  provision  that  "  the  debtors  shall  be 
discharged  when  the  committee  of  inspection 
shall  so  resolve  " : — Held,  that  the  latter  provi- 
sion was  not  in  accordance  with  the  intention  of 
the  act,  and  was  unreasonable,  and  that,  though 
the  debtors  asked  that  the  scheme  might  be 
approved  by  the  court,  the  approval  ought  not 
to  be  given.  Clark,  Ex  parte,  Clark,  In  re,  13 
Q.  B.  D.  426  ;  53  L.  J.,  Ch.  1062  ;  51  L.  T.  684 ; 
32  W.  R.  775  ;  1  M.  B.  R.  143— C.  A. 

Retrospective  Effect.] — The  quasi  penal  pro- 
visions of  sub-ss.  2  and  3  of  s.  28  of  the  Bank- 
ruptcy Act,  1883,  are  retrospective,  Le.,  they 
apply  to  acts  done  by  the  debtor  before  the  act 
came  into  operation,  if  the  proceedings  are 
instituted  under  that  act.  Rogers,  Ex  parte, 
Rogers,  In  re,  13  Q.  B.  D.  438  ;  33  W.  R.  364 ; 
1M.5.B.  159— D. 

Rash  and  Haiardous  Speculation.] — A  trader, 
after  he  knew  that  one  of  his  debtors  who  owed 
him  about  32,000Z.  was  in  pecuniary  difficulties, 
allowed  him,  in  the  course  of  eighteen  months, 
to  increase  his  debt  to  65,0001.,  and  to  the  extent 
of  1 1,0002.  this  increase  was  due  to  accommoda- 
tion bills.  The  trader  then  stopped  payment, 
and  presented  a  bankruptcy  petition.  The  debt 
of  65,000/.  was  apparently  irrecoverable: — Held, 
that  the  debtor  had  been  guilty  of  rash  and 
hazardous  speculations,  and  that  on  this  ground 
(inter  alia)  the  court  ought  to  refuse  to  approve 
of  a  composition  which  his  creditors  had,  under 
the  provisions  of  s.  18,  agreed  to  accept.    lb. 

Where  a  debtor,  as  the  managing  director  of  a 
mining  company  (the  mines  being  undeveloped), 
advanced  both  his  own  and  borrowed  money  to 
the  company,  which  subsequently  became  insol- 
vent : — Held,  that  the  debtor  had  been  guilty  of 
rash  and  hazardous  speculation,  and  that  on  a 
petition  in  bankruptcy  being  presented  against 
him,  the  registrar  was  right  in  refusing  to 
approve  of  the  composition  offered.  Young,  Ex 
parte,  Young,  In  re,  2  M.  B.  R.  37 — C.  A. 

A  debtor  having  incurred  large  debts  by 
gambling  and  Stock  Exchange  transactions,  his 
creditors  accepted  a  composition  of  2s.  in  the 
pound.  The  county  court  judge  refused  to 
sanction  the  composition  on  the  ground  that  the 


173 


BANKRUPTCY — Composition,  Liquidation,  dtc. 


174 


debtor  had  been  guilty  of  "  rash  and  hazardous 
speculation"  within  the  meaning  of  as.  18,  28, 
Bankruptcy  Act,  1883  :— Held,  that  the  county 
court  judge  had  exercised  his  discretion  rightly. 
Tkomber,  Ex  parte,  Barlow,  In  re,  3  M.  B.  R. 
304— C.  A.  Affirming  56  L.  T.  168— D.  See 
also  post,  coL  181. 

Report  of  Official  Receiver  ]— The  report  of 
the  official  receiver  is  under  s.  18  of  the  Bank- 
ruptcy Act,  1883  (as  it  is  under  s.  28),  prima* 
facie  eridence  of  the  statements  contained  in  it. 
Campbell,  Ex  parte,  Wallace,  In  re,  15  Q.  B.  D. 
213;  64  L.  J.,  Q.  B.382 ;  53 L.  T.  208  ;  2  M.  B.  B. 
I67-C.  A. 


ion  after  Adjudication  —  Confirma- 
tion.]— A  special  resolution  of  creditors  under 
a,  23  of  the  Bankruptcy  Act,  1883,  entertaining 
*  proposal  for  a  composition  after  an  adjudication 
of  bankruptcy,  requires  confirmation  at  a  second 
meeting  of  the  creditors,  in  the  same  way  as  a 
special  resolution  under  s.  18  entertaining  a 
similar  proposal  before  adjudication.  Keardey, 
Ex  parte,  Genese,  In  re,  18  Q.  B.  D.  168 ;  56  L.  J., 
Q.B.220;  56L.T.79;  3  M.  B.  R.  274— C.  A. 

Power  of  Court  to  Enforce.] — The  court 

has  the  same  power  to  enforce  the  payment  of  a 
composition  agreed  to  under  s.  23  of  the  Bank- 
ruptcy Act,  1883,  after  an  adjudication  of  bank- 
ruptcy, as  it  has,  under  sub-s.  10  of  s.  18,  to 
enforce  the  payment  of  a  composition  agreed  to 
under  that  section  before  any  adjudication  of 
bankruptcy  has  been  made.  Godfrey,  Ex  parte, 
Lasartu,  In  re,  18  Q.  B.  D.  670  ;  56  L.  J.,  Q.  B. 
369 ;  35  W.  R.  633  ;  4  M.  B.  R.  121— C.  A. 

Specific  Performance  against  Person  giving 
Bend—Alteration  in  Scheme.] — The  trustee  in  a 
bankruptcy  entered  into  a  written  agreement 
frith  the  defendants  whereby  it  was  agreed  that 
the  defendants  should  purchase  the  assets  of  the 
bankrupt  for  such  a  sum  as  would  pay  the  ex- 
penses of  the  bankruptcy  and  the  preferential 
debts  in  full  within  fourteen  days  after  the 
approval  of  the  scheme  by  the  court,  and  a  cer- 
tain composition  to  the  unsecured  creditors,  and 
that  on  tne  approval  of  the  scheme  by  the  court 
the  bankruptcy  should  be  annulled.  The  credi- 
tors by  a  requisite  majority  passed  a  resolution 
agreeing  to  the  scheme  of  arrangement  as  pro- 
posed, but  adding  a  clause  that  a  bond  should 
be  given  by  the  defendants  for  payment  of  the 
money.  The  court  afterwards  approved  the 
agreement  signed  by  the  defendants,  and  an- 
nulled the  bankruptcy : — Held,  in  an  action  by 
the  trustee  against  the  defendants  for  specific 
performance  of  their  agreement,  that  the  credi- 
tors not  having  accepted  the  scheme  proposed  in 
the  form  in  which  the  defendants  had  agreed  to 
it,  there  had  been  no  approval  of  the  scheme  by 
the  court,  and  the  agreement  could  not  be  en- 
forced against  the  defendants.  Lucas  v.  Martin, 
37  Ch.  D.  597  ;  57  L.  J.,  Cb,  261 ;  58  L.  T.  862 ; 
36  W.  R.  627— C.  A- 


to  Pay — Order  to  be  made — Official 

r.]— On  an  application  to  the  court  to 
approve  a  composition,  the  official  receiver  re- 
ported that  he  had  a  sufficient  sum  in  his  hands 
for  payment  thereof  ;  the  report  was  founded  on 
the  estimate  given  by  the  debtor  in  his  state- 
ment of  affairs  which  subsequently  proved  to  be 
wrong ;  an  order  was  asked  for  against  the  official 


receiver  personally  to  make  up  the  required 
sum  : — Held,  first,  that  the  applicants  were  not 
entitled  to  an  order  against  tne  official  receiver 
personally,  and  secondly,  that  if  a  debtor  forms 
a  wrong  estimate  of  his  position,  unless  the 
amount  found  to  be  necessary  to  pay  the  com- 
position agreed  upon  is  procured,  the  proper 
order  for  the  court  to  make  is  one  adjudging 
such  debtor  bankrupt,  and  annulling  the  com- 
position. Foster,  Ex  parte,  Webster,  In  re,  3 
M.  B.  R.  132— Cave,  J. 

Discovery  of  Debtor's  property— Power  to  sum- 
mon Witnesses.]— The  Bankruptcy  Act,  1883  (46 
&  47  Vict.  c.  52),  8.  27 — which  enables  the  court 
on  the  application  of  the  trustee  to  summon 
before  it  for  examination  the  debtor  or  his  wife, 
or  any  person  known  or  suspected  to  have  in  his 
possession  any  of  the  estate  or  effects  belonging 
to  the  debtor,  or  supposed  to  be  indebted  to  the 
debtor,  or  any  person  whom  the  court  may 
deem  capable  of  giving  information  respecting 
the  debtor,  his  dealings  or  property,  &c— does 
not  apply  to  the  trustee  under  a  composition  or 
scheme  of  arrangement  which  has  been  duly 
approved  by  the  court  under  s.  18  of  the  act. 
Whinney,  Ex  parte,  Grant,  In  re,  17  Q.  B.  D. 
238  ;  55  L.  J.,  Q.  B.  369  ;  64  L.  T.  632  ;  34  W.  R. 
539;  3M.  B.  R.  118— C.  A. 

Application  to  Rescind  Receiving  Order — 
Scheme.] — After  a  receiving  order  had  been  made 
against  the  debtor  on  his  own  petition,  a  scheme 
was  put  forward  by  him  which  the  creditors  were 
willing  to  accept,  and  the  debtor  thereupon,  with 
the  assent  of  the  creditors,  applied  to  the  county 
court  to  rescind  the  receiving  order : — Held,  that 
the  registrar  was  right  in  refusing  to  rescind  the 
receiving  order  under  the  circumstances,  and 
that  if  the  debtor  was  desirous  of  substituting  a 
scheme,  he  most  proceed  in  the  manner  provided 
by  s.  18  of  the  bankruptcy  Act,  1883.  Dixon, 
Ex  parte,  Dixon,  In  re,  37  W.  R.  161  ;  5  M.  B. 
R.  291— C.  A.    Affirming  59  L.  T.  776— D. 

Court  foes — Scheme  or  Composition.] — The 
proposal  put  forward  by  a  debtor  provided,  that 
all  the  property  of  such  debtor  divisible  amongst 
his  creditors  should  vest  in  a  trustee,  and  subject 
to  the  provisions  of  the  scheme,  be  administered 
according  to  the  law  of  bankruptcy ;  that  in 
addition  the  sum  of  100Z.  a  year  out  of  a  pension 
of  297Z.  belonging  to  the  debtor  should  be  paid 
to  the  trustee  under  the  scheme  until,  with  the 
rest  of  the  debtor's  property,  all  the  costs  re- 
lating to  the  bankruptcy  should  have  been  paid, 
and  the  creditors  should  have  received  15«.  in 
the  pound  ;  that  after  payment  of  15*.  in  the 
pound  and  of  all  the  costs,  the  trustee  should 
hand  over  the  surplus  of  the  estate  to  the  debtor ; 
and  that,  as  from  the  date  of  the  confirmation  of 
the  scheme  by  the  court,  the  debtor  should  be 
released  and  discharged  from  all  debts  provable 
under  the  bankruptcy.  On  the  application  to 
the  court  for  approval : — Held,  that  the  arrange* 
ment  had  more  of  the  elements  of  a  scheme  than 
of  a  composition,  and  that  the  fee  must  be  paid 
on  the  estimated  value  of  the  1002.  a  year  as  an 
asset.      Griffith,  in  re,  3  M.  B.  R.  Ill— Cave,  J 

2.  UNDER  PRIOR  STATUTES. 

a.    Liquidation. 

Application  by  Trustee  for  Directions — Right 
of  Debtor  to  be  heard.]- Where  a  trustee  in  a 


175 


BANKRUPTCY— Competition,  Liquidation,  dec. 


176 


liquidation  applied  to  the  county  coort  for 
directions  as  to  the  acceptance  of  an  offer  for 
the  purchase  of  the  debtors'  property,  and 
notice  was  given  to  the  debtors,  but  at  the  hear- 
ing of  the  application  the  county  court  judge 
refused  to  hear  the  solicitor  for  the  debtors  or 
to  receive  evidence  on  their  behalf : — Held,  that 
notice  having  been  given  to  the  debtors,  they 
ought  to  have  been  heard,  and  that  an  appeal 
lay  from  such  refusal  of  the  county  court  judge 
to  do  so.  Whether,  when  a  trustee  applies  to  the 
court  for  directions  in  any  particular  matter,  the 
debtor  is,  in  any  event,  entitled  to  appear  and  be 
heard,  quaere.  Webb,  Ex  parte,  Webb,  In  re,  4 
M.  B.  R.  52— Cave,  J. 

Adjudication  —  Relation  baek  of  Trustee's 
Title.] — The  power  to  adjudicate  a  debtor  a 
bankrupt  under  s.  126  of  the  Bankruptcy  Act, 
1869,  was  an  independent  power,  and  was  not 
made  on  the  act  of  bankruptcy  constituted  by 
the  filing  of  the  liquidation  petition,  and  conse- 
quently there  was  no  relation  back  of  the  trus- 
tee's title  to  that  act  of  bankruptcy  unless 
committed  within  six  months,  or  at  the  most 
twelve  months,  of  the  adjudication.  Sharp  v. 
Mc Henry,  88  Ch.  D.  428  ;  57  L.  J.,  Oh.  961 ;  57 
L.  T.  606— Kay,  J. 

Resolutions— Registration— Locus  Standi  to 
oppose — "Creditor."] — Upon  the  hearing  of  an 
application  to  register  liquidation  resolutions, 
no  one  has  a  locus  standi  to  be  beard  in  opposition 
but  a  creditor  who  has  previously  proved  a  debt 
in  the  mode  prescribed  by  the  rules.  A  person 
who  claims  to  be  a  creditor,  and  in  that  character 
to  oppose  the  registration,  cannot  prove  his  debt 
when  he  comes  before  the  registrar  to  oppose.  If 
he  has  not  previously  proved  a  debt  he  cannot 
be  heard.  Baggier,  Ex  parte,  Bag  iter,  In  re, 
24  Ch.  D.  477  ;  53  L.  J.,  Ch.  124  ;  49  L.  T.  272  ; 
32  W.  R.  216— C.  A. 

Composition  or  Scheme  of  Settlement  of  Bank- 
rupt's Affairs — Approval  of  Court.] — Under  s. 
28  of  the  Bankruptcy  Act,  1869,  the  court  is  not 
bound  to  approve  of  resolutions  passed  by  the 
creditors  of  a  bankrupt  authorizing  the  trustee 
to  accept  a  composition,  or  assent  to  a  general 
scheme  of  settlement  of  the  bankrupt's  affairs, 
even  if  it  sees  that  the  majority  have  been  acting 
bona  fide  in  the  interest  of  the  creditors,  and 
that  better  terms  cannot  be  obtained  for  the 
creditors.  Strawbridge,  Em  parte,  Hickman,  In 
re,  infra. 

It  is  the  duty  of  the  court  to  look  at  all  the 
circumstances,  and  to  have  regard  to  the  moral 
aspect  of  the  case,  and  not  to  give  itB  approval  to 
the  proposed  arrangement,  although  it  may  be 
for  the  benefit  of  the  creditors,  if  it  can  see  that 
the  money  which  they  are  to  receive  under  it  is 
to  be  paid  in  order  to  hush  up  and  prevent 
investigation  into  some  discreditable  transac- 
tion, lb. 

In  determining  whether  it  shall  sanction  a 
composition  or  liquidation  by  arrangement 
entered  into  under  ss.  125  and  126  of  the 
Bankruptcy  Act,  1869,  in  accordance  with  the 
provisions  of  s.  170  of  the  Bankruptcy  Act,  1883, 
the  court  or  registrar  is  not  bound  by  the  state- 
ment of  affairs  of  the  debtor  put  forward  and 
agreed  to  by  the  creditors,  but  is  entitled  to 
inquire  into  the  statement  for  the  purpose  of 
seeing  whether  such  composition  or  liquidation  is 


reasonable  and  calculated  to  benefit  the  general 
body  of  creditors.  Me  Alpine,  Ex  parte,  Me 
Alpine,  In  re,  I  M.  B.  R.  126— Cave,  J. 

b.  Composition. 

Votiee  of  Keating.] — The  notice  of  meeting  for 
the  purpose  of  approving  of  a  scheme  under  a.  28 
of  the  Bankruptcy  Act,  1869,  should  state  clearly 
and  fairly  the  nature  of  the  proposals  to  be 
brought  forward.  Strawbridge,  Ex  parte,  Hick- 
man, In  re,  25  Ch.  D.  266  ;  63  L.  J.,  Ch.323;  49 
L.  T.  638 ;  32  W.  R.  173— C.  A. 

Secured  Creditor  proving  for  Balance  of  Dtvt 
above  assessed  Value  of  Security.]— The  effect  of 
rule  272  of  the  General  Rules,  1870,  read  together 
with  s.  126  of  the  Bankruptcy  Act,  1869  (82  &  33 
Vict,  c  71),  is  that  in  composition  proceedings 
under  &  126  a  secured  creditor,  who  proves  for 
the  balance  of  his  debt  after  deducting  the 
assessed  value  of  his  security,  and  afterwards 
realises  the  security,  must  pay  to  the  debtor  any 
surplus  realised  above  the  assessed  value,  after 
allowing  interest  upon  the  assessed  value  from 
the  assessment  until  the  realization.  8ocieU 
GMralc  de  Paris  v.  Qeen,  8  App.  Cas.  606 ;  63 
L.  J.,  Ch.  163  ;  49  L.  T.  750 ;  32  W.  R.  97- 
H.  L.  (E.). 

Valuation  of  Security— Duty  of  Creditor  to 
assent  to  Debtor's  Valuation.] — Where  in  com- 
position proceedings  under  s.  126  of  the  Bank- 
ruptcy Act,  1869,  a  creditor  appeared  in  the 
debtor's  statement  of  affairs  as  a  partly  secured 
creditor  in  respect  of  a  certain  debt,  and  the 
debtor  in  the  statement  valued  the  security  at 
"  nil,"  the  creditor  need  not  take  any  step  to 
signify  his  assent  to  such  valuation,  but  the 
debtor  must  pay  or  tender  the  amount  of  the 
composition  on  that  debt,  and  in  default  thereof 
the  original  debt  revives.  Ilatoes  v.  Bmmtm, 
34  W.  R.  116— C.  A. 

Secured  Creditor  —  Deposit  of  Goods -Bill 
given  —  Composition  paid  to  Indorsee.]— The 
plaintiff  gave  credit  to  the  defendants  for  goods 
sold  and  made  advances  to  them ;  goods  were 
deposited  by  the  defendants  with  the  plaintiff 
as  security,  and  bills  were  drawn  by  the  plaintiff 
and  accepted  by  the  defendants  for  the  amounts 
of  the  goods  sold  and  advances  made.  The 
plaintiff  indorsed  away  such  bills  for  value. 
During  the  currency  thereof  the  defendants  filed 
a  petition  for  liquidation  under  the  Bankruptcy 
Act,  1869,  and  their  creditors  duly  resolved  to 
accept  a  composition.  The  holders  of  the  bills, 
by  arrangement  between  themselves  and  the 
plaintiff,  claimed  and  were  paid  the  composition 
on  the  total  amounts  of  the  bills,  the  plaintiff 
paying  them  the  balance  thereof.  The  plaintiff 
did  not  send  in  any  proof  or  claim  any  dividend, 
but  he  realized  his  security  by  sale  of  the  goods 
deposited,  and  claimed  to  hold  the  proceeds 
against  the  balance  so  paid  by  him  upon  the 
bills :— Held,  that  the  plaintiff  had  no  right  to 
do  so,  as  by  such  arrangement  the  holders  of  the 
bills  had  in  effect  received  the  composition  for 
the  benefit  of  the  plaintiff,  so  that  according  to 
the  bankrupt  law  ne  was  bound  to  account  to 
the  defendants  for  the  amount  by  which  the 
composition  paid  on  the  bills  exceeded  that  which 
would  have  been  paid  if  the  value  of  the  security 
had  been  previously  deducted.  Baines  v.  WrigM, 


177 


BANKRUPTCY — Composition,  Liquidation,  die. 


178 


16  Q.  B.  D.  330  ;  65  L.  J.,  Q.  B.  99  ;  54  L.  T. 
734;  34  W.B.211— C.A. 

Subsequent  Adjudication— Halation  back  of 
Xrutec 's  Title. ] — Where  the  creditors  of  a  debtor 
have  resolved  to  accept  a  composition  under 
a.  126  of  the  Bankruptcy  Act,  1869,  and  the 
debtor  is  subsequently  adjudicated  a  bankrupt 
under  the  last  clause  of  that  section,  there  is  no 
relation  back  of  the  trustee's  title  to  the  act  of 
bankruptcy  committed  by  the  debtor  in  filing 
his  petition,  so  as  to  invalidate  a  payment  made 
by  him  between  the  filing  of  the  petition  and 
the  adjudication  of  bankruptcy.  McDermott, 
&  parte,  Me  Henry,  In  re,  21  Q.  B.  D.  580  ;  36 
W.  k  725— C.  A. 

Testing  of  Property — Subsequent  Bankruptcy 
—Waiver  of  Sights.] — An  arranging  debtor 
carried  a  composition  of  20*.  in  the  pound,  pay- 
able by  instalments,  secured  by  vesting  all  the 
debtor's  property  in  the  official  assignees  and 
a  trustee,  to  whom  power  was  given,  in  the 
event  of  the  debtor  making  default  in  payment 
of  any  of  the  instalments,  to  realize  the  pro- 
perty and  apply  the  proceeds  in  payment  of  the 
composition.  After  payment  of  some  of  the 
instalments,  the  debtor  made  default  in  pay- 
ment of  the  composition.  Subsequently  the 
debtor  was  adjudicated  a  bankrupt,  and  he 
carried  a  composition  after  bankruptcy  of  2s.  §d. 
in  the  pound,  which  composition  was  paid  to 
all  his  creditors,  including  those  under  the 
arrangement,  and  amongst  others  to  A.  and  B. 
Neither  A-  nor  B.  attended  or  voted  at  the  meet- 
ing at  which  the  composition  in  the  bankruptcy 
was  carried,  but  A.  proved,  and  A.  and  B.  received 
the  2*.  6d.  in  -the  pound  : — Held  that  neither 
A  nor  B.  had  thereby  waived  or  released  their 
rights  under  the  arrangement.  Ouil/oyle,  In  re, 
15  L.  B.,  It.  238— C.  A. 

Unpunotual    Payments— Discharge    of 

Moor.] — By  composition  resolutions  it  was 
agreed  to  accept  2s.  in  the  pound,  payable  within 
three  months,  and  secured  to  the  satisfaction  of  the 
trustee  ;  the  debtor  to  be  allowed  his  discharge 
on  the  trustee  certifying  that  he  was  satis- 
fied with  the  security ;  the  liquidation  to  be 
closed  on  payment  of  the  composition.  The 
trostee  certified  that  he  was  satisfied  with  the 
sureties,  but  the  debtor  did  not  apply  for  his 
discharge.  The  first  instalment  was  paid  with 
the  aid  of  the  sureties,  and  the  last,  three  months 
after  the  time  fixed  by  the  resolutions,  out  of  af  ter- 
acqTOed  property.  The  debtor  subsequently  ap- 
plied for,  but  had  been  refused,  his  discharge,  and 
the  liquidation  had  not  been  closed  : — Held,  that 
the  bargain  between  the  debtor  and  his  creditors 
contained  in  the  resolutions  must  be  carried  out 
in  its  entirety,  and  that  the  debtor  having  failed 
to  pay  the  composition,  was  not  entitled  to  his 
discharge,  and  consequently  that  the  after- 
acquired  property  vested  in  the  trustee.  Hintz, 
Bt  parte,  Hintz,  In  re,  or  Heintz,  Ex  parte, 
Beints,  In  re,  53  L.  J.,  Ch.  398  ;  49  L.  T.  683  ; 
»  W.  B.  295— C.  J.  B. 

Punctual  Payment  of  Instalments — Default.] 
—A  trustee  appointed  by  the  creditors  in 
composition  proceedings  to  receive  and  dis- 
tribute the  debtor's  assets  is  entitled  to  be  pat  in 
fads  in  cash  by  the  debtor  in  time  to  enable 
him  to  pay  the  instalments  upon  the  date  fixed 
to  payment  thereof.    A  right  to  seize  and  sell 


the  debtor's  property  given  as  security  for  the 
punctual  payment  of  an  instalment  does  not 
upon  default  of  punctual  payment  postpone 
the  relegation  of  the  creditors  to  their  common 
law  rights  till  after  the  realization  of  the 
security.  Brinton  v.  Maddimn,  1  C.  &  E.  68— 
Lopes,  J. 

Non-payment — Trustee    in   Funds.] — 

Where  a  trustee  for  creditors  in  composition 
proceedings  under  the  Bankruptcy  Act  of  1869 
might,  but  for  his  default,  have  been  in  funds  to 
pay  an  instalment  on  the  due  date,  the  legal 
consequences,  so  far  as  the  debtor  is  concerned,, 
are  the  same  as  if  the  trustee  had  been  in 
funds.  Burgess  v.  Gillespie,  1  C.  &  B.  321— 
Cave,  J. 

Amended  Proof— Time  for  Payment.] — Where, 
after  a  composition  payable  at  fixed  dates  haa 
been  agreed  upon,  a  creditor  sends  in  an  amended 
proof  for  a  larger  sum,  the  trustee  is  entitled  to 
a  reasonable  time  from  the  sending  in  of  such 
amended  proof  for  payment  of  the  amount  due 
thereon.    lb. 

Withdrawal  of  Proof— Creditor  procuring 
Composition  Arrangement — Fraud  discovered.  ] 

— The  plaintiffs,  who  were  creditors  of  the  de- 
fendant, a  trader,  in  insolvent  circumstances, 
took  an  active  part  in  procuring  the  acceptance 
of  a  scheme  of  composition  of  the  defendant's 
affairs,  and  obtained  proxies  from  the  debtor's 
other  creditors.  At  a  meeting  of  the  creditors 
the  plaintiffs  withdrew  the  proof  of  their  debt 
against  the  estate  of  the  defendant  on  the  ground 
that,  owing  to  a  fraudulent  statement  on  hia 

Sart  on  an  earlier  occasion,  they  had  been  in- 
uced  to  forbear  to  press  their  claim  against 
him.  They,  however,  proposed  a  resolution  that 
a  composition  of  11*.  3a.  in  the  pound  should  be 
accepted  in  satisfaction  of  the  debts  due  from 
the  debtor,  and  by  using  the  proxies  held  by 
them  they  carried  the  resolution.  A  dividend 
of  11*.  3rf.  in  the  pound  was  received  by  the 
plaintiffs  on  their  proof.  They  subsequently 
brought  their  action  in  the  county  court  for  the 
unpaid  balance  of  their  debt,  and  the  county 
court  judge  gave  a  verdict  and  judgment  for  the 
amount  claimed.  The  defendant  obtained  a  rule 
nisi  to  set  aside  the  verdict  and  judgment  or  for 
a  new  trial : — Held,  on  the  argument  of  the  rule, 
that  the  plaintiffs,  having  acted  as  they  had 
done,  had  assented  to  the  composition  otherwise 
than  by  proving  their  debt  and  accepting  a  divi- 
dend on  it,  and  that  they  could  not  maintain 
an  action  for  the  unpaid  balance  of  their 
debt,  and  that  judgment  should  be  entered  for 
the  defendant.  Thorp  v.  Dakin.  52  L.  T. 
856— D. 

xiii.  coicposrnoH  deeds. 

Preference  of  One  Creditor— Effect  of] — A 
deed  of  arrangement  for  the  payment  of  a  com- 
position made  between  a  debtor  and  his  creditors 
must,  whether  it  is  or  is  not  made  under  the  pro- 
visions of  a  statute,  be  based  and  carried  out  on 
the  principle  of  perfect  equality.  The  law  im- 
plies, in  the  absence  of  any  express  provision  to 
the  contrary,  a  term  or  condition  in  such  a  deed 
that  the  debtor  agrees  with  the  creditors,  and 
the  creditors  agree  with  him  and  with  each 
other,  that  all  who  are  parties  to  the  deed  shall 
come  in  and  be  placed  on  exactly  the  same 


179 


BANKRUPTCY— Composition  Deeds. 


180 


footing ;  so  that  the  acceptance  by  one  creditor 
of  a  bonus  or  gratuity  beyond  that  secured  to  all 
by  the  deed  will,  if  that  bonus  is  paid  with  the 
knowledge  of  the  debtor,  though  not  by  him  or 
out  of  his  estate,  entitle  any  other  creditor  who 
is  a  party  to  the  deed  to  avoid  it,  and  to  proceed 
as  though  the  deed  were  cancelled.  DaugJish  v. 
Tennent  (2  L.  R.,  Q.  B.  49)  approved.  Milner, 
Ex  parte,  Milner,  In  re,  15  Q.  B.  D.  605  ;  54 
L.  J.,  Q.  B.  425  ;  53  L.  T.  652  ;  33  VV.  R.  867  ; 
2  M.  B.  R.  190— C.  A. 

Beeret  Bargain  with  Particular  Creditor — 
Effect  of.] — By  a  composition  deed  the  creditors 
of  H.,  in  consideration  of  the  payment  of  the 
composition,  agreed  to  release  to  H.  all  debts 
owing  from  him  to  them  respectively,  on  condi- 
tion that,  if  H.  made  default  in  payment  of  the 
composition,  the  deed  should  be  void.  P.,  one 
of  the  creditors,  at  the  time  of  executing  the 
deed,  made  a  secret  bargain  with  H.,  by  which 
he  was  to  receive  from  H.  a  larger  proportion  of 
his  debt  than  any  of  the  other  creditors.  H. 
having  made  default  in  paying  the  composition, 
P.  presented  a  bankruptcy  petition  against  him. 
The  registrar  refused  to  make  a  receiving  order  : 
— Held,  that  the  effect  of  the  secret  bargain  was 
that  the  release  of  P.'s  debt  was  absolute  and 
the  condition  void,  and  that  the  refusal  of  the 
registrar  to  make  a  receiving  order  was  right. 
Phillips,  Ex  parte,  Harvey,  In  re,  36  W.  R.  667 
— C.  A. 

Instalment  unpaid  —  Bight  of  Creditor.] — 
Under  a  composition  arrangement,  payable  in 
three  instalments,  each  secured  by  the  promissory 
note  of  the  arranging  debtor  and  his  sureties, 
default  was  made  in  the  payment  of  the  second 
instalment,  but  the  third  was  paid.  The  creditor 
thereupon  sued  for  the  original  debt,  less  the 
amount  cf  the  first  and  third  instalments : — 
Held,  that  the  creditor  was  entitled  to  revert  to 
his  right  to  sue  for  the  original  debt,  and  the 
court  refused  to  restrain  him  from  doing  so. 
D.,  In  re,  21  L.  R.,  Ir.  281— Bk. 

Construction — Failure  of  Debtor  to  comply 
with  terms.] — Where  a  deed  of  arrangement, 
by  which  a  debtor  agreed  to  pay  his  creditors  in 
full  by  certain  quarterly  instalments,  contained 
a  clause  that  if  default  be  made  for  the  space  of 
21  days  in  paying  any  one  instalment,  then  it 
should  be  lawful  for  the  trustee  under  the  deed 
by  notice  in  writing  to  declare  such  deed  void, 
"  and  in  such  event  the  creditors  shall  be  entitled 
to  enforce  their  claims  as  if  the  deed  had  never 
been  made  or  executed  " : — Held,  that  the  specific 
and  limited  condition  was  meant  to  take  the 
place  of  the  general  and  implied  condition,  and 
that  as  the  trustee  had  not  given  the  notice,  a 
creditor  under  the  deed  was  not  entitled  to  serve 
a  bankruptcy  notice  and  present  a  petition  on 
account  of  the  debt  due  to  him.  Goas,  Ex  parte, 
Clement,  In  re,  3  M.  B.  R.  153— C.  A. 

^  Inconsistency    between    Recitals    and 

Operative  part.] — A  deed  of  composition  exe- 
cuted by  a  debtor  who  had  filed  a  bankruptcy 
petition  recited  that  the  debtor  was  possessed  of 
or  entitled  to  the  real  and  personal  estate  specified 
in  a  schedule  to  the  deed,  and  that  in  accordance 
with  his  desire  to  pay  his  creditors  20*.  in  the 
pound,  and  in  order  that  the  composition  should 
be  secured,  he  had  agreed  with  the  trustee  to 
assign  to  him  all  the  property  set  forth  in  the 


schedule,  upon  the  trusts  thereinafter  contained. 
By  the  operative  part  the  debtor,  "  for  effectnat- 1 
ing  the  said  desire,  and  in  pursuance  of  the 
said  agreement,"  assigned  to  the  trustee  "all 
and  singular  the  several  properties,  chattels,  and  :i 
effects  set  forth  in  the  said  schedule  hereto,  and 
all  the  estate,  right,  title,  interest,  claim,  and 
demand  "  of  the  debtor  "  in,  to,  and  upon  the 
said  chattels,  properties,  and  effects,  and  all 
other  the  estate  (if  any)  "  of  the  debtor.  The 
debtor  was,  under  the  trusts  of  a  poet-nuptial 
settlement,  entitled  to  a  life  interest  in  certain 
property.  This  life  interest  was  not  mentioned 
in  the  schedule : — Held,  that  the  general  words 
of  the  assignment  were  controlled  by  the  recital, 
which  showed  that  the  deed  was  intended  to  apply 
only  to  the  property  specified  in  the  schedule,  and 
that  the  life  interest  did  not  pass  to  the  trustee. 
Dawes,  Ex  parte,  Moon,  In  re,  17  Q.  B.  D.  275; 
55  L.  T.  114  ;  34  W.  R.  752— C.  A. 

Creditors  setting  up  adverse  Claim— Execu- 
tion refused.] — Incumbrancers  who  had  claimed 
priority  over  a  creditors'  deed  and  failed  in  their 
contention,  were  not  allowed  afterwards  to  exe- 
cute and  take  the  benefit  of  the  deed.  Meredith, 
In  re,  Meredith  v.  Faeey,  29  Ch.  D.  745;  54 
L.  J.,  Ch.  1106  ;  33  W.  R.  778— Pearson,  J. 


XIV.    THE  DISCHARGE  AND   BE-OPEHUG 

BANKRUPTCY. 

1.  Discharge  under  the  Bankruptcy  Act, 

1883. 

2.  Discharge  under  Prior  Statutes. 

3.  He-opening  Bankruptcy. 

4.  Effect  of  Discharge. 

1.  DISCHARGE  UNDER  THE   BANK- 
RUPTCY ACT,  1883. 

Duty  of  Court  where  any  Offences  committal] 
— Upon  an  application  by  a  bankrupt  for  hii 
discharge  under  s.  28  of  the  Bankruptcy  let, 
1883,  where  any  of  the  offences  specified  in 
sub-s.  (3)  of  that  section  are  proved  to  have  been 
committed,  the  court  must  either  refuse  the 
order  or  suspend  its  operation,  or  grant  an  order 
subject  to  conditions ;  and  the  court  cannot  in 
such  a  case  grant  an  unconditional  discharge. 
Board  of  Tragic,  Ex  parte,  Heap,  In  re,  4  M.B. 
R.  314— D. 

General  Principles  on  which  Court  acta.1-- 

In  considering  the  question  of  a  bankrupt's  dis- 
charge, the  court  is  bound  to  have  regard,  not  to 
the  interests  of  the  bankrupt,  or  of  the  creditors 
alone,  but  also  to  the  interests  of  the  public,  and 
of  commercial  morality.  Although  facts  may 
not  be  absolutely  proved,  which  would,  under 
s.  28,  sub-s.  2,  of  the  Bankruptcy  Act,  1883, 
compel  the  court  to  refuse  any  discharge,  yet, 
where  gross  misconduct  within  the  section  is 
shown  on  the  part  of  the  bankrupt,  the  court  is 
perfectly  justified  in  declining  to  grant  a  dis- 
charge upon  conditions,  and  in  making  an  order 
absolutely  refusing  to  such  bankrupt  any  dis- 
charge at  all.  Badcoek,  Ex  parte,  Badeoek,  2» 
re,  3  M.  B.  R.  138— D. 

Conduct  of  Bankrupt  before  Conunenet- 

ment  of  Act.] — Upon  an  application  by  a  bank- 
rupt under  s.  28  of  the  Bankruptcy  Act,  1883} 


181 


BANKRUPTCY—  The  Discharge  and  Re-opening. 


182 


for  an  order  of  discharge,  the  court  may  take 
into  consideration  conduct  of  the  bankrupt  of 
tie  nature  mentioned  in  sub-s.  3,  though  it  took 
place  before  the  commencement  of  the  act,  and 
m  that  sense  s.  28  is  retrospective.  White,  In  re 
(S3  L.  J.,  Bk.  22),  explained  and  distinguished. 
Salaaan,  Ex  parte,  Salaman,  In  re,  14  Q.  B.  D. 
SK ;  54  L.  J.t  Q.  B.  238 ;  52  L.  T.  378  ;  2  M.  B.  R. 
<1-C.  A. 

lash  tad  Hazardous  Speculations.]— A  soli- 
citor who  had  no  capital  of  his  own  bought  land 
in  the  city  of  London  by  means  of  money  which 
he  borrowed  on  the  security  of  mortgages  of  the 
land,  his  intention  being  to  sell  it  at  an  advanced 
pice.  He  afterwards  borrowed  more  money  on 
a  farther  mortgage  for  the  purpose  of  building 
on  the  land.  The  land  was  valued  by  profes- 
sional valuers  at  considerably  more  than  the 
amount  borrowed.  He  was  unable  to  sell  or  to 
let  the  property,  and  he  became  a  bankrupt  :— 
Held,  that  he  had  been  guilty  of  "rash  and 
hazardous  speculations,* '  and  that  the  registrar 
wm  right  in  granting  him  an  order  of  discharge 
abject  to  the  condition  that,  after  setting  aside 
out  of  his  earnings  300/.  a  year  for  the  main- 
tenance of  himself  and  his  family,  he  should  pay 
orer  to  the  official  receiver  the  balance  of  his 
earnings,  until  he  should  have  paid  10*.  in  the 
porad  on  all  the  debts  which  had  been,  or  might 
be,  proved  in  the  bankruptcy.  Tb.  See  also 
ante,  col.  172. 

Cutraethig  Debt  without  Expectation  of 
raying.] — Two  partners,  who  had  no  capital  of 
their  own,  commenced  business  by  means  of 
borrowed  money,  assigning  to  the  lender  as 
security  their  leasehold  premises,  the  goodwill  of 
their  business,  and  all  their  existing  and  after- 
acquired  stock-in-trade,  fixtures,  furniture,  and 
book-debts,  giving  him  the  power  to  take  pos- 
sesion at  any  time.  They  contracted  debts  in 
carrying  on  the  business,  and  became  bankrupts. 
The  mortgagee  took  possession  under  his  deed, 
and  his  security  was  insufficient.  The  registrar 
panted  the  bankrupts  a  discharge,  on  condition 
cf  their  consenting  to  judgment  being  entered  up 
against  them  by  the  trustee  for  the  whole  of  the 
debts  provable  in  the  bankruptcy : — Held,  that 
the  bankrupts  had  contracted  debts  without 
having  at  the  time  of  contracting  them  any 
reasonable  or  probable  ground  of  expectation  of 
being  able  to  pay  them,  and  that  the  registrar's 
derision  was  right.  White,  Ex  parte,  White, 
A  n,  14  Q.  B.  D.  600 ;  54  L.  J.,  Q.  B.  384  :  88 
W.R.670;  2KB.  B.  42— €.  A. 

Jiigamt  entered  against  Debtor  for  Debt.]— 
A  debtor  at  the  time  when  the  action  was  com- 
menced in  which  final  judgment  was  obtained 
against  him,  upon  which  the  receiving  order  was 
«hseqnently  made,  carried  on  business  in  part- 
nenhip  with  his  father,  and  had  a  considerable 
ncome.  During  the  pendency  of  the  proceedings 
in  the  action,  the  deDtor  paid  away  the  money 
belonging  to  him  in  the  business,  and  also 
<j»eived  notice  from  his  father  to  quit  the 
Partnership.  The  county  court  judge  granted 
the  bankrupt  his  discharge  on  the  terms  that  he 
"honld  pay  to  the  trustee  in  his  bankruptcy  the 
•nn  of  TOW.  out  of  his  earnings  or  income  or 
«T  after-acquired  property  :— Held,  on  appeal, 
that  the  order  of  the  county  court  judge  must  be 
■dined,  and  that  there  would  be  an  order 


granting  to  the  bankrupt  his  discharge  on  con- 
senting to  judgment  being  entered  against  him 
in  the  terms  of  s.  28,  sub-s.  6,  of  the  Bankruptcy 
Act,  1888.  Allestree,  Ex  parte,  Clarkson,  In  re, 
2  M.  B.  R.  219— D. 

An  order  was  made  by  a  county  court  judge, 
directing  that  the  discharge  of  the  bankrupts 
should  be  allowed  as  soon  as  a  sufficient  sum 
was  paid  to  the  trustee  in  the  bankruptcy  to 
make  up  a  dividend  of  5«.  in  the  pound.  On 
appeal,  the  objection  was  taken  that  the  order 
in  question  was  wrong  in  form  : — Held,  that  the 
proper  order  to  be  made  under  the  circumstances 
was  that  the  discharge  of  the  bankrupts  should 
be  granted,  subject  to  judgment  being  entered 
against  them  under  s.  28,  sub-s.  6,  of  the  Bank- 
ruptcy Act,  1883,  for  such  amount  and  under 
such  conditions  as  set  out  in  the  order.  Small, 
Ex  parte,  Small,  In  re,  3  M.  B.  R.  296— D. 


Consent  to  Judgment,  when  Required.] 


— The  court  will  not  require  a  bankrupt,  as  a 
condition  of  his  discharge,  to  consent  to  judg- 
ment being  entered  against  him  for  the  balance 
of  his  debts,  unless  there  is  some  evidence  that 
he  is  likely  to  acquire  property  sufficient  to 
satisfy  such  judgment.  Amaud,  Ex  parte, 
Bidlen,  In  re,  36  W.  R.  836  ;  5  M.  B.  R.  243— 
C.  A. 

Omission  to  keep  "  usual  and  proper  Books 
of  Account."] — By  s.  28  of  the  Bankruptcy  Act, 
1883,  it  is  provided  that  the  court  shall  refuse  a 
bankrupt  an  order  of  discharge,  or  suspend  the 
operation  of  the  order,  or  grant  a  conditional 
order,  upon  proof  "that  the  bankrupt  has 
omitted  to  keep  such  books  of  account  as  are 
usual  and  proper  in  the  business  carried  on  by 
him,  and  as  sufficiently  disclose  his  business 
transactions  and  financial  position  within  the 
three  years  immediately  preceding  his  bank- 
ruptcy." A  bankrupt,  who  carried  on  business 
as  a  hatter,  bought  some  houses  with  the  inten- 
tion of  selling  them  at  a  profit  for  building 
purposes,  and  also  incurred  liabilities  in  pro- 
moting an  hotel  company.  He  had  kept  proper 
books  of  account  in  relation  to  his  business  as  a 
hatter,  but  he  had  kept  no  books  in  respect  of 
his  purchases  of  houses,  or  of  his  transactions 
in  relation  to  the  hotel  company  : — Held,  by 
Lord  Esher,  M.R.,  and  Lopes,  L.J.,  that  the 
bankrupt  was  not  required  to  keep  any  books 
relating  to  the  building  speculations,  and  that 
the  omission  to  keep  such  books  could  not  be 
taken  into  account  as  a  reason  for  refusing  or 
suspending  his  order  of  discharge : — By  Fry, 
L.J.,  that  the  building  speculations  were  "  busi- 
ness "  transactions,  and  that  the  bankrupt  was 
bound  to  keep  books  in  relation  to  them.  Board 
of  Trade,  Ex  parte,  Mutton,  In  re  ;  or  Mutton, 
Ex  parte,  Multon,  In  re,  19  Q.  B.  D.  102 ;  56 
L.  J.,  Q.  B.  395  ;  56  L.  T.  802 ;  35  W.  R.  561 ;  4 
M.  B.  R.  180— C.  A.  See  Reed,  Ex  parte,  Reed, 
In  re,  post,  col.  187. 

Appeal  from  Discretion.] — Where  all  the  facts 
have  been  brought  before  the  registrar,  and  he 
has  exercised  his  discretion  as  to  the  terms  on 
which  a  bankrupt  should  obtain  his  discharge, 
the  Court  of  Appeal  will  not  interfere  with  such 
decision  on  an  allegation  that  the  punishment 
imposed  was  too  lenient,  unless  it  is  perfectly 
clear  that  the  decision  was  wrong.  Cooper,  Ex 
parte,  Chase,  In  re,  3  M.  B.  R.  228— C.  A. 


188 


BANKRUPTCY—  The  Discharge  and  Re-opening. 


164 


On  an  application  by  a  bankrupt  for  his  dis- 
charge, the  official  receiver  reported  that  the 
bankrupt  had  brought  himself  within  the  pro- 
visions of  s.  28,  sub-s.  (3),  of  the  Bankruptcy 
Act,  1883,  in  that  he  had  been  guilty  of  rash  and 
hazardous  speculations  by  reason  of  certain 
gambling  transactions  upon  the  Stock  Exchange, 
and  the  county  court  judge  refused  to  grant 
any  order  of  discharge  : — Held,  that  under  the 
circumstances  and  taking  into  consideration  the 
facts  that  the  bankrupt  was  not  a  trader,  and 
that  only  one  of  the  offences  specified  in  the  sub- 
section had  been  reported  against  him,  the  proper 
order  was  to  suspend  the  order  of  discharge  for 
three  years.  Rankin,  Ike  parte,  Rankin,  In  re, 
5  IL  B.  R.  23— D.     And  see  ante,  col.  170. 

Wrong  Conclusion  of  Fast] — Though 

the  registrar  has,  under  s.  28  of  the  Bankruptcy 
Act,  1883,  a  judicial  discretion  as  to  granting,  or 
refusing,  or  suspending  a  bankrupt's  order  of 
discharge,  and  the  Court  of  Appeal  will  not 
readily  interfere  with  the  exercise  of  his  discre- 
tion, if  he  has  taken  a  right  view  of  the  facts, 
yet  if,  in  the  opinion  of  that  court,  he  has  come 
to  a  wrong  conclusion  of  fact  with  regard  to  the 
bankrupt's  conduct,  they  will  vary  his  decision 
by  absolutely  refusing  an  order  of  discharge 
when  he  has  only  suspended  it.  Cattle  Mail 
Packet*  Company,  Ex  parte,  Payne,  In  re, 
18  Q.  B.  D.  154  ;  35  W.  R.  89  ;  3  M.  B.  B.  270— 
C.A. 


Report  of  Official  Receiver  Unfounded.] 


— Although  the  Divisional  Court  in  Bankruptcy 
will  not  readily  interfere  with  the  exercise  or  the 
discretion  of  a  county  court  judge  refusing  the 
discharge  of  a  bankrupt,  yet  if  the  decision  of 
such  judge  is  founded  solely  on  the  report  of  the 
official  receiver,  and,  on  appeal,  the  statements 
contained  in  such  report  are  proved  to  be  un- 
founded and  are  capable  of  explanation,  the 
Divisional  Court  will  vary  the  order  of  the 
county  court  judge,  and  will  grant  to  the  bank- 
rupt his  order  of  discharge,  subject  to  such  con- 
ditions as  in  the  nature  of  the  case  it  may  think 
fit.  Sultzberger,  Ex  parte,  8ultzberger,  In  re, 
4  M.  B.  R.  82— D. 

Order  made  under  a  Mistake — Course  to  be 
pursued.] — After  an  order  had  been  made  sus- 
pending the  discharge  of  a  bankrupt  for  five 
years,  certain  facts  were  brought  to  the  notice  of 
the  county  court  judge  from  which  he  came  to 
the  conclusion  that  the  opinion  he  had  formed 
of  the  debtor's  conduct  at  the  time  of  the  appli- 
cation for  discharge  was  a  mistaken  one.  On 
appeal  by  the  bankrupt  from  the  order  made  on 
the  application  for  his  discharge  : — Held,  that 
the  proper  course  was  for  the  appeal  to  stand 
over  in  order  that  an  application  might  be  made 
to  the  county  court  judge  to  review  his  decision. 
Dowson,  Ex  parte,  Dowson,  In  re,  4  M.  B.  B. 
310— D. 

Duty  of  Debtor  to  aid  in  Realisation  of 
Estate— Medioal  Examination.] — The  principal 
asset  of  a  bankrupt  was  a  contingent  rever- 
sionary interest  which  was  saleable  if  the  bank- 
rupt's life  were  insured.  The  trustee  having 
requested  the  bankrupt  to  submit  to  a  medical 
examination  with  a  view  to  a  policy  being 
effected,  the  bankrupt  refused  to  do  so  without 
giving  any  reason,  although  he  had  not  long 


before  his  bankruptcy  submitted  to  such  an 
examination  for  the  purpose  of  raising  money 
on  his  interest,  and  although  he  admitted  thst 
since  then  he  had  contracted  no  disease,  and 
that  he  knew  of  no  reason  why  he  should  not 
submit  to  such  an  examination : —  Held  (Lord 
FitzGerald  dissenting),  that  the  obligation  im- 
posed upon  a  bankrupt  by  s.  24  of  the  Bank- 
ruptcy Act,  1883,  to  "  do  all  such  acts  and  things 
in  relation  to  his  property,  and  the  distribution 
of  his  property  among  his  creditors,  as  may  be 
reasonably  required  by  the  trustee  "  and  to  "  aid 
to  the  utmost  of  his  power  in  the  realisation  of 
his  property  and  the  distribution  of  the  proceeds 
among  his  creditors,"  did  not  include  an  obli- 
gation to  submit  to  a  medical  examination,  and 
that  the  refusal  to  submit  was  not  a  ground 
upon  which  the  bankrupt's  discharge  eould  be 
refused  or  suspended  under  s.  28.  Board  «/ 
Trade  v.  Block,  13  App.  Cas.  570  ;  58  L.  J..Q.& 
113  ;  69  L.  T.  734  ;  87  W.  R.  259  ;  53  J.  P.  164 
— -fl.  L.  (]£•)• 

Application  for  Discharge  —  Appeal.]— &t 
Williams,  Ex  parte,  Williams,  In  re,  and  AanhU, 
Ex  parte,  Rankin,  In  re,  post,  coL  203. 

Registrar's  Fee— Consent  Judgment  for  over 
501. — County  Court] — Where  a  county  court 
grants  a  bankrupt  his  discharge  subject  to  his 
consenting  to  judgment  being  entered  up  against 
him  by  the  trustee  for  the  balance  of  debts 
provable  under  the  bankruptcy,  the  county  court 
has  jurisdiction  under  r.  240  of  the  Bankruptcy 
Rules,  1886,  to  enter  up  such  judgment,  although 
the  amount  exceeds  502. ;  but,  the  rule  being 
silent  as  to  fees,  the  registrar  is  not  entitled  to 
any  fee  in  respect  of  such  judgment.  Move,  1% 
re,  18  Q.  B.  D.  573  ;  56  L.  J.,  Q.  B.  257 ;  35  W. 
R.  380 ;  4  M.  B.  R.  57— Cave,  J. 


2.  DISCHARGE  UNDER  PRIOR  STATUTES- 

Application  for,  before  close  of  Bankruptcy- 
Meeting,  how  Summoned.]  — When  a  meeting 
of  the  creditors  of  a  bankrupt  under  the  Bank- 
ruptcy Act,  1869,  is  summoned  by  the  trustee 
(for  the  purpose,  e.g.,  of  ascertaining  whether 
the  creditors  will  assent  to  an  application  by  the 
bankrupt  for  an  order  of  discharge),  it  is  only 
necessary  that  it  should  be  summoned  by  means 
of  a  notice  sent  by  the  trustee  to  each  creditor 
in  accordance  with  the  provisions  of  rule  95 ;  it 
is  not  necessary  that  advertisements  of  the  meet- 
ing should  be  published,  as  provided  by  role  89 
in  reference  to  the  first  meeting  of  the  creditors* 
Sect.  78  has  not  the  effect  of  incorporating  the 
Bankruptcy  Rules  into  the  act  for  the  purposes  of 
construction.  But  even  if  the  rules  are  to  be 
considered  as,  by  virtue  of  s.  78,  incorporated 
into  the  act,  s.  21  does  not  make  rule  89  appli- 
cable to  meetings  summoned  by  the  trustee,  a 
special  provision  for  the  summoning  of  such 
meetings  being  made  by  rule  95.  Cohen,  Ex 
parte,  Cohen,  In  re,  13  Q.  B.  D.  66 ;  63  L,  J., 
Ch.  641 ;  60  L.  T.  347  j  32  W.  R.  669—C.  A 

Discharge  by  Composition  Resolutions.]— Set 
Heintz,  Ex  parte,  Heintz,  In  re,  ante,  coL  177. 

Certificate  of  Conformity— Effect  of  Suspend- 
ing Order.]— In  July,  1848,  an  order  was  made 
that  the  grant  of  a  certificate  of  conformity  to  a 
bankrupt  be  suspended  for  three  years.    Daring 


185 


BANKRUPTCY—  The  Discharge  and  Re-opening. 


186 


the  period  of  suspension  the  Bankruptcy  Act 
of  1M9  came  into  operation  ;    which  provided 
(a.  199)  that  "  every  certificate  of  conformity, 
allowed  by  any  commissioner  before  the  time 
appointed  for  the  commencement  of  this  act, 
thoogh  not  confirmed  according  to  the  laws  in 
farce  before  that  time,  shall  discharge  the  bank- 
rupt from  til  debts  due  by  him  when  he  became 
bankrupt,  and  from  all  claims   and  demands 
nade  provable  under  the  fiat "  : — Held,  that  as 
by  virtue  of  that  section,  confirmation  of  the 
order  of  July,  1848,  was  no  longer  required,  that 
order  became,  at  the  expiration  of  the  period  of 
suspension,  of  itself  a  complete  discharge  to  the 
bankrupt,  and  that  property  acquired  by  him 
after  the  expiration  of  that  period  belonged  to 
him  and  not  to  the  assignee  in  the  bankruptcy. 
Dev,l*re,B<ntsJu;ld  v.  Dove,  27  Ch.  D.  687; 
33  L  J.,  Ch.  1099 ;  33  W.  R.  197— Pearson,  J. 


3.  KE-OPENING  BANKRUPTCY. 

ftaii  aid    Misrepresentation —  Borden  of 

Frist] — H.  C.  O.  and  E.  having  for  some  time 
previous  to  1879  carried  on  business  in  partner- 
ship, sad  the  firm  being  at  that  time  largely  in- 
debted, H.  C.  0.,  at  that  date,  retired  in  favour 
of  F.  0.,  bis  son,  leaving  to  him  his  share  of  the 
debts  and  liabilities.  H.  C.  O.  retained  a  lien 
ipon  the  partnership  property.  On  the  '  12th 
My,  1879,  H.  C.  O.  died,  having  executed  a 
codicil  to  his  will  authorising  his  executors  to 
sell  bis  share  in  the  business.  The  executors 
allowed  K.  and  F.  O.  to  carry  on  the  business 
object  to  a  lien  upon  the  property,  machinery, 
Acl,  retained  by  the  executors.  In  May,  1880, 
F.  0.  and  B.  filed  their  petition,  and  a  receiver 
vu  appointed,  who  carried  on  the  business  as 
tenant  to  the  executors,  and  to  whom  E.  and 
F.  0.  rendered  a  statement  of  affairs,  from  which 
it  was  alleged  that  a  certain  claim  which  the 
fn*  bad  against  J.  was  omitted,  and  in  which  a 
patent,  which  was  afterwards  sold  for  800Z.,  was 
sod  to  have  been  mentioned  as  being  of  no 
Talne.  On  the  20th  May  a  composition  of  1*.  Sd. 
via  accepted,  and  the  bankruptcy  was  closed. 
The  trustee  applied  to  the  county  court  judge  to 
iwpen  the  bankruptcy,  and  appealed  from  his 
refusal  to  do  so :— Held,  that  if  it  had  been 
proved  that  the  bankrupts  were  aware  of  their 
daima  against  J.,  and  of  the  value  of  the  patent 
at  the  time  when  the  statement  of  affairs  was 
■ade,  the  bankruptcy  ought  to  be  reopened,  but 
tkat  the  trustee  had  failed  to  make  out  an  affirma- 
tive esse,  and  that  the  burden  of  proof  lay  upon 
■ha.  Outran,  In  re,  Marshall  v.  Edeliton.  50 
L  T.  W— Cave,  J. 


4.  KFFECT  OF  DISCHARGE. 

Htrnt  tad  Contingent  Liabilities—41  Liability 
astpabU  of  being  estimated."]— The  assignee  of 
ajease  for  a  term  of  years  covenanted  to  in- 
fcnnify  the  lessees  against  damages  for  breach 
« their  covenants  with  the  lessors  to  repair  and 
yield  up  the  demised  premises  in  repair  at  the 
«of  the  term.  Bight  years  before  the  term 
j*putd,  the  assignee  lied  a  petition  forliquida- 
j»  toy  arrangement  under  the  Bankruptcy  Act, 
fy?  and  obtained  an  order  of  discharge.  The 
«■»*»  were  not  scheduled  in  the  debtor's  state- 
*oit  of  affairs,  no  notices  were  sent  to  them, 


and  they  tendered  no  proof  in  the  liquidation  in 
respect  of  the  assignee's  possible  liability  at  the 
end  of  the  term  upon  his  covenant  to  indemnify. 
After  the  term  expired,  the  lessors  having  re- 
covered damages  against  the  lessees  upon  the 
covenants  for  repair,  the  lessees  claimed  an 
indemnity  from  the  assignee  in  respect  of  bis 
covenant  to  indemnify  : — Held,  that  the  claim 
of  the  lessees  was  barred,  under  s.  49  of  the 
Bankruptcy  Act,  1869,  by  the  order  of  dis- 
charge, the  effect  of  s.  31  being  to  make  the 
assignee's  future  and  contingent  liability  on  his 
covenant  to  indemnify  a  debt  provable  in  the 
liquidation,  unless  an  order  of  the  court  declared 
it  to  be  a  liability  incapable  of  being  fairly  esti- 
mated. Hardy  v.  Fotkergill,  18  App.  Cas.  351 ; 
58  L.  J„  Q.  B.  44  ;  69  L.  T.  273  ;  37  W.  R.  177  ; 
53  J.  P.  36— H.  L.  (E.). 

A  tenant  in  possession  of  premises  under  an 
agreement  for  a  lease  for  twenty-one  years,  from 
Michaelmas,  1861  (the  lease  to  contain  a  cove- 
nant to  repair  and  leave  in  repair)  liquidated 
by  arrangement  in  1872,  and  got  his  discharge 
in  1880.  The  trustee  took  no  steps  with  regard 
to  the  premises  which  the  tenant  continued  to 
occupy  till  Michaelmas,  1882  : — Held,  that  the 
tenant  was  bound  to  leave  the  premises  in  the 
state  of  repair  required  by  the  agreement.  Pon$- 
ford  v.  Abbott,  1  C.  &  E.  225— Lopes,  J. 

Liability  incurred  by  means  of  Fraud.] — Three 
directors  of  a  bank  passed  resolutions  for  loans 
to  be  paid  by  the  company  to  certain  persons, 
and  the  company  afterwards  sued  another 
director  and  recovered  judgment  against  bim 
for  some  of  the  loans  which  were  unpaid  ;  in  an 
action  by  the  director  against  his  three  co- 
directors,  one  of  whom  went  into  liquidation 
and  obtained  his  discharge : —  Held,  that  his 
liability,  being  a  "liability  incurred  by  means 
of  breach  of  trust  "  within  the  meaning  of  s.  49 
of  the  Bankruptcy  Act,  1869,  his  discharge  did 
not  release  him.  RarMkill  v,  Edwards,  31 
Ch.  D.  100 ;  55  L.  J.,  Ch.  81 ;  58  L.  T.  949 ; 
34  W.  R.  96— Pearson,  J. 

Statute  of  Limitations.]— C,  a  broker, 

sold  without  authority  bonds  left  with  him  by 
A.,  a  customer,  for  safe  custody,  and  misappro- 
priated the  proceeds.  C.  became  bankrupt,  and 
the  sale  being  then  discovered,  A.  proved  for  the 
value.  The  creditors  passed  a  resolution  under 
the  Bankruptcy  Act,  1869,  s.  28,  accepting  a 
proposal  that  T.,  a  friend  of  the  bankrupt, 
should  pay  a  composition  of  6d.  in  the  pound 
on  all  the  debts  in  full  discharge  thereof,  and 
that  on  Buch  payment  the  bankruptcy  should  be 
annulled.  A.  received  the  composition,  but  did 
not  otherwise  assent  to  the  arrangement.  In 
August,  1880,  the  bankruptcy  was  annulled.  In 
May,  1886,  an  order  in  the  Chancery  Division 
was  made  for  administration  of  the  estate  of  C, 
who  had  died  in  the  interval : — Held,  that  the 
debt  due  from  C.  to  A.  was  incurred  by  fraud 
within  the  meaning  of  s.  15  of  the  Debtors  Act, 
1869 ;  that  s.  15  applied  not  only  to  composi- 
tions and  arrangements  under  ss.  125  and  126  of 
the  Bankruptcy  Act,  1869,  but  to  arrangements 
under  s.  28,  and  that  the  debt,  therefore,  was 
not  discharged  by  the  arrangement :  —  Held, 
also,  that  as  the  debt  was  incurred  by  fraud 
which  was  not  discovered  till  after  the  adjudi- 
cation, and  an  action  could  not  be  brought 
while  the  bankruptcy  was  in  force,  the  Statute 


187 


BANKRUPTCY— Offences. 


188 


of  Limitations  did  not  begin  to  ran  till  the 
bankruptcy  was  annulled,  and  as  an  order  for 
administration  was  made  within  six  years  from 
that  time,  A.  was  entitled  to  prove  in  the 
administration  for  the  unpaid  part  of  his  debt. 
Crosley,  In  re,  Munns  v.  Burn,  35  Ch.  D.  266  ; 
57  L.  T.  298  ;  35  W.  R.  790— C.  A. 


XV.    0FFEVCE8. 

"  Obtaining  credit  "—Undischarged  Bankrupt 
— Jurisdiction.] — In  order  to  convict  an  undis- 
charged bankrupt  under  46  &  47  Vict.  c.  52, 
s.  31,  of  the  offence  of  "  obtaining  credit  to  the 
amount  of  twenty  pounds  or  upwards  from  any 
person  without  informing  such  person  that  he  is 
an  undischarged  bankrupt,"  it  is  not  necessary 
that  there  should  be  a  stipulation  to  grant  credit 
in  the  contract  between  the  parties ;  it  is  suffi- 
cient if  a  credit  in  fact  is  obtained.  The 
Prisoner,  an  undischarged  bankrupt,  living  in 
fewcastle-on-Tyne,  bought  a  horse  from  the 
prosecutor,  a  farmer  in  Ireland,  for  221.,  free  of 
expenses  to  the  vendor,  who  by  the  prisoner's 
direction  delivered  the  horse  on  board  a  steamer 
at  Larne ;  no  stipulation  was  made  as  to  the 
time  or  mode  of  payment,  and  the  prisoner  did 
not  disclose  the  fact  that  he  was  an  undis- 
cliarged  bankrupt.  The  prisoner  paid  for  the 
carriage  of  the  horse  on  its  delivery  to  him  at 
Newcastle,  and  immediately  sold  it,  and  refused 
to  pay  the  price  to  the  prosecutor  : —  Held 
(Manisty,  J.,  dissenting),  that  there  was  evi- 
dence to  go  to  the  jury  of  an  obtaining  of 
credit  by  the  prisoner  within  the  meaning  of 
s.  31  of  the  Bankruptcy  Act,  1883  :— Held,  also, 
that  the  offence  was  committed  in  Newcastle- 
on-Tyne.  Beg.  v.  Peters,  16  Q.  B.  D.  636  ;  55 
L.  J.,  M.  C.  173  ;  54  L.  T.  545 ;  34  W.  R.  399  ; 
50  J.  P.  631 ;  16  Cox,  C.  C.  36— C.  C.  R. 


Order  for  Goods  less  than  £20,  delivery 


of  Goods  over  £80.]— The  offence  of  obtaining 
credit  to  the  extent  of  202.  or  upwards  by  an 
undischarged  bankrupt  is  committed  where  the 
bankrupt  receives  and  keeps  goods  of  the  value 
of  20Z.  or  upwards  without  paying  for  them,  or 
informing  the  creditor  of  the  fact  of  his  being 
an  undischarged  bankrupt,  or  repudiating  the 
contract,  although  the  goods  were  sent  in  exe- 
cution of  an  order  for  goods  of  a  less  value  than 
20Z.  Beg.  v.  July,  55  L.  T.  788  ;  35  W.  R.  168  ; 
51  J.  P.  310  ;  16  Cox,  C.  C.  160— C.  C.  R. 


XVI.    THE  BANKRUPT. 

Duty  of  Trader  as  to  keeping  Accounts.] — In 

order  that  a  trader  may  fulfil  the  requirements 
of  sub-s.  3  (a)  of  s.  28  of  the  Bankruptcy  Act, 
1883,  his  books  must  be  kept  in  such  a  way  as  to 
show  at  once,  without  the  necessity  of  a  pro- 
longed investigation  by  a  skilled  accountant, 
the  state  of  his  business.  Beed,  Ex  parte,  Reed, 
In  re,  17  Q.  B.  D.  244  ;  65  L.  J.,  Q.  B.  244  ;  34 
W.  R.  493  ;  3  M.  B.  R.  90— C.  A. 

Statement  of  Affairs — Contents  of.]— In  a 
debtor's  statement  of  his  affairs  presented  to  the 
first  meeting  of  his  creditors  under  a  liquidation 
petition  under  the  Bankruptcy  Act,  1869,  he  is 
bound  only  to  show  the  state  of  his  affairs  at  the 
date  of  the  filing  of  the  petition,  and  is  not, 


therefore,  bound  to  calculate  interest  on  interest- 
bearing  debts  beyond  that  date.  Fewingt,  Est 
parte,  Sneyd,  In  re.  25  Ch.  D.  338  ;  53  L.  J.,  Ch. 
545  ;  50  L.  T.  109  ;  32  W.  R.  352. 


Estoppel.]— The  plaintiff  gave  a  bill  of 


sale  on  his  furniture  to  the  defendants  to  secure 
an  advance.  Before  the  payment  of  the  first 
instalment  due  under  the  bill  of  sale  he  filed  a 
petition  in  bankruptcy,  and  in  his  statement  of 
affairs  returned  the  defendants  as  secured  cre- 
ditors. The  defendants  seized  and  sold  the 
furniture,  and  the  proceeds  being  insufficient  to 
pay  their  debt  they  proved  for  the  residue.  A 
composition  of  2s.  6d.  in  the  pound  was  proposed, 
and  on  the  report  of  the  official  receiver  was 
sanctioned  by  the  court  and  paid  to  the  creditors, 
including  the  defendants.  The  plaintiff  subse- 
quently brought  an  action  for  the  wrongful 
seizure  of  his  goods,  alleging  that  the  bill  of  sale 
was  invalid : — Held,  that  the  plaintiff  having  in 
the  bankruptcy  proceedings  treated  the  bill  of 
sale  as  valid,  and  obtained  thereby  an  advantage 
to  himself,  could  not  afterwards  allege  that  the 
bill  of  sale  was  invalid  so  as  to  entitle  him  to 
recover  in  this  action.  Roe  v.  Mutual  Lean 
Ihind,  19  Q.  B.  D.  347  ;  56  L.  J.,  Q.  B.  541 ;  35 
W.  R.  723— C.  A. 

Liability  for  Costs — Action  by  Executrix  and 
Husband— Bankruptcy  of  Husband.]— A  feme 
covert  sued  as  executrix,  and  (the  action  being 
brought  before  the  Married  Women's  Property 
Act,  1882,  came  into  operation)  her  husband  was 
joined  as  co-plaintiff.  After  the  action  was  set 
down,  but  before  trial,  the  husband  filed  a  liqui- 
dation petition,  and  obtained  his  discharge  there- 
under. When  the  action  came  on  for  trial  the 
plaintiffs  did  not  appear,  and  the  action  was 
dismissed  with  costs  : — Held,  that  the  husband, 
who  had  no  beneficial  interest  which  could  pass 
to  the  trustee  under  his  liquidation,  having 
allowed  the  action  (which  was  a  continuing 
action  after  his  liquidation)  to  come  on  for  trial 
was  liable  for  the  costs.  Vint  v.  Hudspitk,  30 
Ch.  D.  24  ;  54  L.  J.,  Ch.  844  ;  52  L.  T.  774  ;  33 
W.  R.  738-C.  A. 

Order  against,  to  pay  Costs.] — The  court  has 
jurisdiction  to  order  an  undischarged  bankrupt 
to  pay  costs.  Castle  Mail  Packets  Co.,  Ex  parte, 
Payne,  In  re,  18  Q.  B.  D.  154  ;  35  W.  R.  89 ;  3 
M.  B.  R.  270— C.  A. 

Aotion  for  maliciously  procuring  Bankruptcy.] 
— A  bankrupt  whose  adjudication  in  bankruptcy 
has  not  been  set  aside  cannot  maintain  an  action 
for  maliciously  procuring  the  bankruptcy ;  and 
such  an  action  may  be  summarily  dismissed 
upon  summons  as  frivolous  and  vexatious.  Whit- 
worth  v.  Hall  (2  B.  &  Ad.  695)  approved. 
Metropolitan  Bank  v.  Pooley,  10  App.  Cas.  210 ; 
54  L.  J.,  Q.  B.  449  ;  53  L.  T.  163  ;  33  W.  R.  709; 
49  J.  P.  756— H.  L.  (B.). 

Action  for  Maintenance.] — A  bankrupt  cannot 
maintain  an  action  for  maintenance  on  the 
ground  that  the  defendant  incited  and  supported 
bankruptcy  proceedings  in  which  he  had  no 
common  interest,  since  the  cause  of  action  (if 
any)  passed  to  the  trustee  in  bankruptcy ;  and 
such  an  action  may  be  summarily  dismissed  upon 
summons  as  frivolous  and  vexatious.    lb. 


189 


BANKRUPTCY—  The  Bankrupt. 


190 


iseirity  to  Costs— When  required.]-— Judg- 
ment taring  been  given  restraining  the  defen- 
dants from  making,  selling,  or  using  instru- 
ments of  a  certain  construction,  as  being  an  in- 
fringement of  the  plaintiffs  patent,  and  order- 
ing delivery  of  all  instruments  so  constructed, 
the  defendants  appealed,  but  before  the  appeal 
vis  ready  for  hearing  became  bankrupt : — Held, 
that  the  defendants,  though  bankrupts,  had  still 
neh  an  interest  in  being  relieved  from  the 
injunction  as  entitled  them  to  proceed  with  the 
appeal  on  giving  security  for  costs.      United 
Tdepkone  Company  v.  Bassano,  31  Ch.  D.  630  ; 
KL  J.,  Ch.  625 ;  54  L.  T.  479  ;  34  W.  R.  537 
-C.A. 

An  order  was  made  dismissing  the  appeal 
mlea  within  a  certain  time  the  bankrupts  gave 
security  for  costs,  or  the  trustee  in  bankruptcy 
■ade  himself  a  party  to  the  proceedings.    lb. 

That  a  receiving  order  in  bankruptcy  has  been 
mde  against  a  plaintiff  is  no  ground  for  requir- 
ing him  to  give  security  for  costs.  Rhodes  v. 
town,  16  Q.  B.  D.  548  ;  55  L.  J.,  Q.  B.  134  ;  34 
W.  K  240-C.  A. 

Notwithstanding  a  receiving  order,  the  debtor 
en  sue  for  the  recovery  of  what  belongs  to  him, 
sad  he  cannot  be  regarded  as  the  mere  instru- 
ment of  the  official  receiver  or  the  creditors  so 
that  security  for  costs  can  be  required  of  him. 
Matcdm  v.  Hodgkinum  (8  L.  R.,  Q.  B.  209) 
commented  on.    lb. 

ltdieal  Examination  of,  to  effect  Life  Injur- 
am]— A  bankrupt  cannot  be  compelled  to 
answer  questions  or  submit  to  a  medical  exami- 
nation of  which  the  sole  object  is  to  enable  an 
insurance  to  be  effected  on  the  bankrupt's  life, 
with  a  view  to  the  better  or  more  profitable 
realisation  of  the  bankrupt's  life  interest  in 
certain  property.  Bulloch,  Ex  parte,  Garnett, 
hrt%  16  Q.  B.  D.  698  ;  55  L.  J.,  Q.  B.  77 ;  53 L. 
1 769 ;  34  W.  R.  79— Cave,  J. 

The  principal  asset  of  a  bankrupt  was  a  con- 
tingent reversionary  interest,  which  was  saleable 
if  the  bankrupt's  life  were  insured.  The  trustee 
having  requested  the  bankrupt  to  submit  to  a 
radical  examination  with  a  view  to  a  policy  being 
efeeted,  the  bankrupt  refused  to  do  so  without 
giving  any  reason,  although  he  had  not  long 
before  his  bankruptcy  submitted  to  such  an 
examination  for  the  purpose  of  raising  money 
«  his  interest,  and  although  he  admitted  that 
■ace  then  he  had  contracted  no  disease,  and 
that  he  knew  of  no  reason  why  he  should  not 
submit  to  such  an  examination  : — Held  (Lord 
HtxGeratd  dissenting),  that  the  obligation  im- 
posed upon  a  bankrupt  by  s.  24  of  the  Bank- 
Jtptcy  Act,  1883,  to  "  do  all  such  acts  and  things 
tt  relation  to  his  property,  and  the  distribution 
of  his  property  among  his  creditors,  as  may  be 
^■woably  required  by  the  trustee  n  and  to  "  aid 
to  the  utmost  of  his  power  in  the  realisation  of 
™  property  and  the  distribution  of  the  proceeds 
"wng  his  creditors,"  did  not  include  an  obli- 
Ptic*  to  submit  to  a  medical  examination,  and 
■"*  the  refusal  to  submit  was  not  a  ground 
■gawhich  the  bankrupt's  discharge  could  be 
™ed  or  suspended  under  s.  28.  Board  of 
Tnde  t.  Eloet,  13  App.  Cas.  570  ;  58  L.  J.,  Q.  B. 

113 ;  59  L.  T.  734  ;  37  W.  R.  259  ;  53  J.  P.  164 
~H.L.(E.). 

Afftitation  by  Bankrupt  for  delivery  of  Docu- 
■ttt^Feriing  Criminal  Proceedings.]— Where 


after  the  annulment  of  bankruptcy  proceedings, 
application  was  made  by  the  bankrupt  for  an 
order  against  the  trustee  to  deliver  up  books  and 
papers,  and  a  statement  of  account,  and  it  ap- 
peared that  the  trustee,  with  the  solicitors  and 
committee  of  inspection,  had  been  indicted  by 
the  bankrupt  for  conspiracy  in  bringing  about 
the  bankruptcy  with  intent  to  defraud,  which 
indictment  was  then  pending :— Held,  that  in  the 
face  of  the  criminal  proceedings,  the  application 
could  not  then  be  allowed  ;  and  that  the  proper 
course  under  the  circumstances  was  to  order  the 
case  to  stand  over  until  after  the  trial  upon  the 
indictment  had  taken  place,  or  until  its  aban- 
donment. Palmer,  Ex  parte,  Palmar,  In  re,  3 
M.  B.  R.  267— C.  A. 

Disqualification  of— Refusal  of  Certificate — 
11  Misfortune  without  any  Misconduct."]  —  By 
the  Bankruptcy  Act,  1883  (46  &  47  Vict.  c.  52),  s. 
32,  sub-s.  1,  bankruptcy  disqualifies  a  person  from 
exercising  certain  offices,  but  by  (2)  this  dis- 
qualification is  removed  if  the  bankrupt "  obtains 
from  the  court  his  discharge  with  a  certificate  to 
the  effect  that  his  bankruptcy  was  caused  by 
misfortune  without  any  misconduct  on  his  part." 
A.  was  convicted  for  libel,  and  sentenced  to 
three  months'  imprisonment  with  hard  labour, 
and  ordered  to  pay  the  costs  of  the  prosecution. 
A.  had  borrowed  on  a  bill  of  sale  to  pay  the  costs 
of  his  defence,  and  on  conviction  borrowed  on  a 
second  bill  of  sale  to  pay  off  the  former  one,  and 
to  meet  the  newly  accrued  costs.  The  prosecu- 
tion caused  his  bankruptcy,  and  he  was  thereby 
disqualified  from  exercising  the  office  of  vestry- 
man. The  county  court  judge  granted  him  his 
discharge,  but  refused  a  certificate  under  s.  32 : — 
Held,  that  the  county  court  judge  was  right,  and 
that  the  bankruptcy  was  not  caused  by  "  misfor- 
tune without  any  misconduct "  : — Held,  also, 
that  the  **  misconduct "  in  s.  32  is  not  limited  to 
the  cases  referred  to  in  88.  24, 28.  Barges*,  Ex 
parte,  Burg  est,  In  re,  57  L.  T.  200 ;  35  W.  R. 
702  ;  4  M.  B.  R.  186— D. 

By  s.  32  of  the  Bankruptcy  Act,  1883  (46  &  47 
Vict.  c.  52),  certain  disqualifications  are  imposed 
upon  a  bankrupt,  which  are  to  be  removed  if  he 
obtains  from  the  court  his  discharge,  with  a 
certificate  that  his  bankruptcy  was  "  caused  by 
misfortune  without  any  misconduct  on  his  part." 
The  debtor  instituted  a  suit  for  a  divorce  against 
his  wife  and  co-respondents  on  the  ground  of  her 
adultery.  At  the  trial  the  jury  found  that  the 
wife  had  not  committed  adultery,  and  the  peti- 
tion was  dismissed,  and  the  debtor  was  ordered 
to  pay  the  costs  of  his  wife  and  of  the  co- 
respondents. The  means  of  the  debtor  both 
before  and  after  the  commencement  of  the  pro- 
ceedings were  wholly  insufficient  to  pay  these 
costs,  and  he  was  adjudged  a  bankrupt  on  the 
petition  of  one  of  the  co-respondents : — Held, 
that  the  bankruptcy  of  the  debtor  had  not  been 
"  caused  by  misfortune  without  any  misconduct 
on  his  part "  within  the  meaning  of  s.  32,  and 
that  he  was  not  entitled  to  the  certificate 
described  in  the  section.  Campbell,  Lord  Colin, 
In  re,  20  Q.  B.  D.  816  ;  59  L.  T.  194 ;  36  W.  R. 
582:  5M.  B.  R.  94— C.A. 


XVII.    EFFECT  OF  BANKRUPTCY. 

Forfeiture  of  Interest— Discharge  of  Bank- 
rupt.]— Under  a  marriage  settlement,  the  hus- 
band was,  subject  to  the  life  interest  therein  of 


191 


BANKRUPTCY— Effect  of. 


192 


his  wife,  entitled  to  receive  the  income  of  certain 
property  settled  by  the  wife  during  his  life, 
provided  always  that  if  the  husband  should 
41  charge,  assign,  or  otherwise  dispose  of  the  said 
income,  or  any  part  thereof,  or  purport  so  to  do. 
or  shall  become  bankrupt,  or  present  a  petition, 
or  call  a  meeting,  to  do  any  other  definite  legal 
act  for  the  liquidation  of  his  affairs,"  the  trust 
declared  of  the  income  in  his  favour  should  cease, 
and  during  the  remainder  of  his  life  the  trustees 
might  at  their  discretion  apply  the  whole  or  any 
part  of  the  income  for  the  support  and  benefit  of 
the  husband  and  two  specified  children  of  the 
wife,  or  any  one  or  more  of  them,  as  the  trustees 
should  think  fit,  and  should  apply  the  surplus 
(if  any)  of  the  income  in  another  way.  The 
husband  during  the  lifetime  of  the  wife  filed  a 
liquidation  petition,  and  a  trustee  of  his  property 
was  appointed.  The  husband  obtained  his  dis- 
charge before  the  death  of  the  wife.  After  the 
death  of  the  wife,  the  trustee  assigned  for  value 
to  the  husband  all  the  property  belonging  to  him 
at  the  commencement  of  the  liquidation,  and 
devolving  on  him  subsequently  up  to  the  date  of 
his  discharge,  other  than  what  had  been  already 
received  by  the  trustee.  The  liquidation  was 
not  formally  closed,  but  the  trustee  never  made 
any  claim  to  the  income  of  the  settled  property  : 
— Held,  that  a  forfeiture  of  the  life  interest  had 
taken  place.  Robertson  v.  Richardson,  80  Ch.  D. 
628 ;  65  L.  J.,  Ch.  275  ;  33  W.  R.  897— Pearson,  J. 

Bankruptcy  annulled.] — A  testator  gave 

his  residuary  real  and  personal  estate  to  trustees 
upon  trust,  to  pay  one-third  of  the  rents  and 
proceeds  to  his  son  until  he  Bhould  die  or  become 
bankrupt,  or  assign,  charge,  or  incumber,  or 
attempt  to  assign,  charge,  or  incumber  the 
same  or  any  part  thereof,  or  do  something 
whereby  the  same  or  some  part  thereof  would  by 
operation  of  law  or  otherwise  if  belonging  abso- 
lutely to  him  become  vested  in,  or  payable  to, 
some  other  person  or  persons,  with  a  gift  over  on 
the  failure  or  determination  of  the  trust.  Shortly 
before  the  death  of  the  testator,  insolvency  pro- 
ceedings were  instituted  against  the  son  in 
Melbourne,  where  he  was  living,  and  trustees  of 
his  estate  were  appointed,  who  gave  notice  to  the 
trustees  of  the  testator's  will  to  pay  over  to  them 
any  sums  in  their  hands  to  which  the  bankrupt 
was  entitled.  The  insolvency  proceedings  were 
very  shortly  afterwards  annulled,  and  it  appeared 
that  the  insolvency  trustees  had  not  received  any 
thing  from  the  trustees  of  the  will : — Held,  that, 
notwithstanding  the  annulment  of  the  insolvency 
proceedings,  the  clause  of  forfeiture  had  taken 
effect.  Broughton,  In  re,  Peat  v.  Broughton, 
57  L.  T.  8— Chitty,  J. 

Goods  seised  under  Execution  but  not  Sold.  ] 

— Under  the  terms  of  a  marriage  settlement,  the 
rent  and  profits  of  land  were  payable  to  H.  for 
life,  or  until  he  should  be  adjudged  a  bankrupt 
"  or  should  commit  or  knowingly  permit,  or  suffer 
to  be  committed  any  act  whereby  his  interest  in 
all  or  any  of  the  said  several  lands,  or  any  part 
thereof,  might  become  the  property  of  a  third 
party  for  any  time  or  term  whatsoever, "  or  that 
the  lands,  or  any  part  of  them,  should  be  taken 
in  execution  or  any  proceedings  taken  to  sell  the 
same  by  any  person  or  persons  whatsoever.  A 
judgment  was  obtained  against  M.,  a  writ  of  fi. 
fa.  issued,  and  some  cows  were  seized  by  the 
sheriff,  but  returned,  the  debt  having  been  paid  : 


— Held,  that  under  the  words  "  commit,  or  know, 
ingly  permit,  or  suffer  to  be  committed,  any  set 
whereby  his  interest  might  become  the  property 
of  a  third  party,"  no  forfeiture  of  M.'s  interest 
in  the  lands  had  occurred.  Ryan,  In  re,  19  L 
R.,  It.  24— Bk. 

Filing  Petition— Composition  Dtsd.]- 

A  debtor  was  entitled  under  a  post-nuptial  settle- 
ment to  a  life  interest  subject  to  a  proviso 
that  if  he  should  assign,  charge,  or  otherwise 
dispose  of  the  income,  or  should  become  bankrupt, 
"  or  do  or  suffer  anything  whereby  the  income,  if 
payable  to  him  absolutely,  would  become  Tested 
in  any  other  person,"  then  the  trust  declared  in 
his  favour  should  cease,  and  during  the  re- 
mainder of  his  life  the  trustees  might  apply  the 
income  for  the  benefit  of  his  wife  and  dnldren: 
—Held,  that  neither  the  filing  of  a  bankruptcy 
petition  nor  the  execution  of  a  composition 
deed  worked  a  forfeiture  of  the  debtor's  life 
interest.  Amherst *s  Trusts,  In  re  (13  L.  R.,Sq- 
464)  distinguished.  Dawes,  Bx  parte,  Moon,  h 
re,  17  Q.  B.  D.  275  ;  56  L.  T.  114— Cave,  J. 

Composition  —  By  Firm  of  whiek  i 


Member.] — Presentation  by  a  firm  of  a  petition 
for  liquidation  under  the  Bankruptcy  Act,  1869, 
followed  by  acceptance  by  the  creditors  of  a 
composition,  operates  as  a  forfeiture  of  an  interest 
limited  in  1862  to  the  use  of  A.,  who  was  a 
member  of  the  firm,  during  his  life  "  or  until  he 
should  be  outlawed  or  declared  bankrupt,  or 
become  an  insolvent  within  the  meaning  of  some 
act  of  Parliament  for  the  relief  of  insolvent 
debtors."  Nimon  v.  Verry,  29  Ch.  D.  196 ;  M 
L.  J.,  Ch.  736  ;  53  L.  T.  18 ;  33  W.  R.  633- 
— Chitty,  J. 

Colonial  Bankruptcy.]— In  1838  a  settle- 
ment of  real  estate  in  England  was  made,  and 
thereby  the  trustees  were  to  pay  the  rents  and 
profits  to  8.  L.  for  life  or  until  he  should  commit 
an  act  of  bankruptcy,  or  commit  any  act,  or  any 
event  should  occur,  whereby  the  rents,  if  settled 
absolutely  upon  or  in  trust  for  him,  should  be 
forfeited  to  or  become  vested  in  any  other  person 
whomsoever,  and  there  was  a  gift  over  upon  the 
happening  of  any  such  event.  8.  L.  in  1875  was 
residing  in  New  South  Wales,  and  was  adjudged 
insolvent  by  the  court  of  the  colony,  the  act  of 
the  colony  vesting  all  property  of  the  insolfent 
"wheresoever  the  same  might  be  known  or 
found  "  in,  the  commissioner  therein  mentioned. 
On  summons  taken  out  by  8.  L.  under  the  Settled 
Land  Act,  1882,  to  have  trustees  appointed:— 
Held,  that  in  consequence  of  the  insolvency  in 
New  South  Wales,  the  property  had  become 
forfeited,  and  had  gone  over  to  those  in  re* 
mainder.  Levy's  Trusts,  In  re,  30  Ch.  D.  119 ; 
64  L.  J.,  Ch.  968  ;  53  L.  T.  200  ;  33  W.  R  895- 
Kay,  J. 

Forfeiture  of  Lease— On  Tenant "  being  Bank- 

runt."]— A  lease  (executed  in  1880)  of  a  miU 
and  warehouse,  for  twenty-one  years,  contained 
a  proviso  that  in  case  (inter  alia)  the  lessees 
should  during  the  term  be  bankrupts,  or  file  a 
petition  in  liquidation,  the  term  should  cease. 
After  the  Bankruptcy  Act,  1883,  came  into 
operation,  the  lessees  presented  a  bankruptcy 
petition,  and  a  receiving  order  was  made : — Held, 
that  the  presentation  of  the  petition  caused 
a  forfeiture  of  the  term.     Gould  or  Ooold,  B* 


198 


BANKRUPTCY— Practice. 


194 


/*rfe  Walker,  In  re,  13  Q.  B.  D.  454  ;  61  L.  T. 
£8 ;  1  M.  B.  B.  168— D. 

—  Election  of  Lessor.] — When  a  lease  con- 
tains a  proviso  or  condition,  "  that  on  breach  of 
anj  of  the  covenants,  such  lease  shall  cease, 
determine,  and  be  void,  to  all  intents  and  pur- 
poses whatsoever,"  such  words  must  be  construed 
to  mean  void  at  the  election  of  the  lessor.  A 
lease  contained  a  proviso  that  if  the  lessee  should 
become  bankrupt  or  insolvent,  the  lease  should 
cease,  determine,  and  be  void.  The  lessee  having 
become  bankrupt,  the  trustee  in  bankruptcy 
rejected  a  proof  put  in  by  the  lessor  founded  on 
win  lease,  upon  the  ground  that  on  the  bank- 
ruptcy, the  lease  became  void : — Held,  that  such 
rejection  by  the  trustee  was  wrong,  and  the 
proof  most  be  allowed.  Leather seUeri  Company, 
&  parte,  Tickle,  In  re,  3  If.  B.  R.  126— Cave,  J. 

Arbitration — Bankruptcy  before  Award.] — 
An  order  was  made  by  consent  that  all  matters 
is  dispute  in  an  action  should  be  referred ; 
daring  the  arbitration  and  before  award  the 
defendant  became  bankrupt : — Held,  that  bank- 
ruptcy did  not  operate  as  a  revocation  of  the 
abflnanon.  Edward*,  Ex  parte,  Smith,  In  re, 
3M.B.B.179— D. 


XVIII.   PRACTICE. 

1.  Generally. 

2.  Staying  Proceeding*. 

3.  Transfer  of  Proceeding*. 

4.  Evidence. 

5.  Cost*. 

1.  GENERALLY. 

Solicitor's  Bight  of  Audience.]— A  solicitor 
bat  a  right  of  audience  on  an  appeal  to  the 
divisional  court  from  a  county  court  sitting  in 
cukroptcy.  Reynold*,  Ex  parte,  Barnett,  In 
«,15  Q.  B.  D.  169  ;  54  L.  J.,  Q.  B.  364  ;  58  L.  T. 
*« ;  2  If.  B.  R.  122— D.  See  Ruuell,  Ex  parte, 
Bderton,  In  re,  poet,  col.  208. 

Wieitor  to  be  authorised  in  Writing.]— The 
Bankruptcy  Act,  18S3,  s.  17,  sub-s.  4,  enacts  with 
reference  to  the  public  examination  of  a  debtor 
voder  that  act,  ''that  any  creditor  who  has 
tendered  a  proof,  or  his  representative  authorised 
in  writing,  may  question  the  debtor  concerning 
bit  affairs,  and  the  causes  of  his  failure  "  : — Held, 
tt»t  a  solicitor  who  appears  at  a  bankruptcy 
exit  for  a  creditor  who  has  tendered  a  proof,  is 
the  creditor's  representative  within  the  meaning 
of  that  snb-section,  and  is  therefore  not  entitled 
®  to  question  the  debtor  without  being  authorised 
in  writing  and  producing  his  authority  if  required 
*T  the  court  to  do  so.  Reg.  v.  Greenwich  County 
Cmt  BecUtrar,  16  Q.  B.  D.  64  ;  64  L.  J.,  Q.  B. 
*»;  53  L.  T.  902 :  33  W.  R.  671 ;  2M.B.R, 
ifc-C.  A. 

-—Application  for  Rule.]— Query,  if  such 
•oKeitar,  when  his  right  of  audience  has  been  so 
denied  to  him,  is  "  a  party,"  within  the  meaning 
«U  43  of  the  County  Courts  Act,  1866  (19  &  20 
vict  c.  108),  who  is  entitled  to  apply  to  the 
•yerior  court  for  a  rule  to  compel  the  county 
court  judge  to  give  him  audience.    lb. 


Bringing  Infants  before  the  Court— Avoid- 
ance of  Settlement.] — When  it  is  desired  to  bring 
an  infant  before  the  court,  the  proper  course  is 
to  apply  for  the  appointment  of  a  guardian  ad 
litem.  Where  on  an  appeal  from  a  county 
court,  the  divisional  court  in  bankruptcy  directs 
such  appeal  to  stand  over  in  order  that  certain 
persons,  some  of  whom  are  infants,  may  be  made 
parties,  it  would  appear  that  an  application  for 
the  appointment  for  a  guardian  ad  litem  should 
be  made  to  the  county  court.  Trustee,  Ex  parte, 
Lowndes,  In  re,  3  M.  B.  R.  216— Gave,  J. 

Motion  to  Commit — Affidavit  of  Service — Sub- 
stituted Service.] — The  motion  to  commit  should 
refer  to  the  affidavit  of  service.  In  order  to 
obtain  an  order  for  substituted  service,  it  must 
be  shown  that  the  person  sought  to  be  served 
knows  of  the  motion  and  intentionally  keeps  out 
of  the  way.  Board  of  Trade,  Ex  parte,  Pearce, 
In  re,  1  M.  B.  R.  Ill,  136— Cave,  J. 

Court  Feos — Application  by  Official  Receiver 
as  Trustee.] — An  official  receiver  when  applying 
to  the  court  in  his  capacity  of  trustee,  is  not 
exempt  from  the  fee  of  b*.  prescribed  in  Table  A. 
to  the  order  of  October  26,  1886.  The  exemp- 
tion only  applies  when  he  makes  the  application 
in  his  capacity  of  official  receiver.    Trustee,  Ex 

rrte,  Whitaker,  In  re,  21  Q.  B.  D.  261 ;  57 
J.,  Q.  B.  527  ;  59  L.  T.  255  ;  36  W.  R.  736 ;  5 
M.  B.  R.  178— Cave,  J.  See  Board  of  Trade, 
Ex  parte,  Rowland*,  In  re,  ante,  col.  94. 

Fresh  First  Meeting,  when  ordered.}-— See 
MHenry,  Ex  parte,  M Henry,  In  re,  24  Ch.  D. 
36 ;  53  L.  J.,  Ch.  27 ;  48  L.  T.  921 ;  31  W.  R. 
873 — C.  A.  May,  Ex  parte,  May,  In  re,  12 
Q.  B.  D.  497  ;  53  L.  J.,  Q.  B.  671 ;  50  L.  T.  744  ; 
32  W.  R.  839 ;  1  M.  B.  R.  60— C.  A. 


2.  STAYING  PROCEEDINGS. 

Effect  of— Receiver.] — When  receivers  ap- 
pointed in  an  action  commenced  in  the  Chancery 
Division  are  discharged  by  order  of  the  judge  in 
bankruptcy,  their  office  determines  from  the  date 
of  the  order  by  which  they  were  discharged. 
The  remuneration  of  such  receivers  is  to  be 
assessed  by  the  registrar.  Official  Receiver,  Ex 
parte,  Parker,  In  re,  1  M.  B.  R.  39 — Cave,  J. 

Personal   Misconduot   of   Bankrupt.] —  The 

Elaintiff  in  an  action  in  the  Chancery  Division 
aving  failed  to  pay  into  court,  when  ordered, 
a  sum  of  money  which  he  had  received  in  a 
fiduciary  capacity,  was  served  with  a  notice  of 
motion  for  a  writ  of  attachment  against  him. 
He  thereupon  filed  his  petition  in  bankruptcy, 
and  applied  to  the  Court  of  Bankruptcy,  under 
8.  9  of  the  Bankruptcy  Act,  1883,  to  stay  further 
proceedings  in  the  action  on  the  ground  that  the 
claim  against  him  was  a  debt  provable  in  his 
bankruptcy: — Held,  that  his  application  must 
be  refused,  for  that  no  good  reason  was  shewn 
why  the  Court  of  Bankruptcy  should  interfere. 
Mackintosh,  Ex  parte,  Mackintosh,  In  re,  13 
Q.  B.  D.  235 ;  51  L.  T.  208 ;  33  W.  R.  140 ;  1 
M.  B.  R.  84— Cave,  J. 

Semble,  the  jurisdiction  conferred  on  the  Court 

of  Bankruptcy  by  s.  9  of  the  Bankruptcy  Act, 

1883,  is  discretionary,  and  will  not,  as  a  general 

I  rule,  be  exercised  in  favour  of  a  bankrupt  per- 


195 


BANKRUPTCY— Practice. 


196 


sonally,  where  he  has  by  some  misconduct  in 
some  other  proceedings  rendered  himself  liable 
to  imprisonment.    lb. 

Action  for  Debt  provable.] — The  defendant 
presented  a  petition  in  bankruptcy  on  which  a 
receiving  order  was  made  on  the  24th  October, 
1885.  The  plaintiff  brought  his  action  againBt 
the  defendant  on  the  balance  of  an  account  on 
the  19th  September,  1687.  The  defendant  ap- 
plied for  an  order  to  stay  the  action  on  the 
ground  that  a  bankruptcy  petition  had  been  pre- 
sented by  him  and  a  receiving  order  made  against 
him,  and  that  the  action  being  in  respect  of  a 
debt  provable  in  the  bankruptcy,  had  been  com- 
menced without  leave  of  the  court.  Both  the 
master  and  the  judge  at  chambers  refused  to 
make  the  order  as  prayed.  The  defendant  ap- 
pealed :— Held,  that  the.  appeal  ought  to  be 
allowed,  and  the  action  restrained,  as  there  were 
no  special  or  exceptional  circumstances  which 
would  entitle  the  court  to  allow  it  to  continue. 
Browmoombe v.Fair, £8 L.  T.  86—  D. 


Actions  in  'Chanoery  Hvision-~P«mding  Ap- 
plication is  Court  of  Bankruptcy.]— In  January, 
1885,  S.  commenced  an  action  against  M.  for  an 
account  of  what  was  due  to  him  on  the  security 
of  a  mortgage  of  certain  freehold  property  and  a 
bill  of  sale  of  certain  chattels,  both  dated  the  7th 
of  August,  1879,  and  to  enforce  those  securities 
by  foreclosure  or  sale.  It  was  subsequently 
agreed  that  M.  should  execute  a  further  bill  of 
sale  in  favour  of  S.,  and  that  nothing  should  be 
done  by  8.  to  enforce  his  -securities  before  the 
30th  June,  1886.  A  bill  of  sale  was  accordingly 
executed  on  the  3rd  July,  1885.  On  the  25th 
March,  1886,  M.  was  adjudicated  a  bankrupt ; 
and  on  the  26th  Hay,  1886,  two  persons  were 
duly  appointed  trustees  in  his  bankruptcy,  and 
were  afterwards  added  as  parties  to  the  action. 
On  the  27th  May,  1886,  S.  applied  to  the  Court 
of  Bankruptcy  for  an  order  that  one  of  such 
trustees  in  bankruptcy,  who  had  also  been  ap- 
pointed receiver  of  the  bankrupt's  property, 
might  be  directed  to  withdraw  from  possession 
of  the  chattels  comprised  in  the  bills  of  sale. 
This  application  was,  however,  adjourned  at  the 
request  of  the  trustees,  and,  for  various  reasons, 
had  never  been  brought  on  again,  and  was  still 
pending  in  the  Court  of  Bankruptcy.  In  July, 
1886, 8.  commenced  an  action  against  the  trustees 
in  bankruptcy  for  an  account  of  what  was  due 
to  him  on  the  security  of  the  bill  of  sale  dated 
the  3rd  July,  1885,  and  to  enforce  such  security 
by  foreclosure  or  sale.  A  motion  was  subse- 
quently made  by  the  trustees  in  bankruptcy, 
under  s.  10  (2)  of  the  Bankruptcy  Act,  1883, 
that  all  further  proceedings  in  the  two  actions 
might  be  stayed  until  further  order,  on  the 
ground  that  S.'s  application  to  the  Court  of 
Bankruptcy  was  still  pending,  and  had  not  been 
adjudicated  upon,  and  that  the  same  questions 
would  have  to  be  determined  on  the  hearing  of 
that  application  as  those  which  arose  in  the 
actions,  viz.,  whether  the  bills  of  sale  were  or 
were  not  fraudulent  and  void,  and  that  such 
questions  would  be  better  tried  in  the  Court  of 
Bankruptcy  than  in  the  Chanoery  Division  :— 
Held,  that  under  the  circumstances  of  the  case, 
it  would  not  be  proper  that  the  actions  should 
be  stayed,  as  questions  would  probably  arise  fitter 
for  the  consideration  of  the  Chancery  Division 
than  of  the  Court  of   Bankruptcy :   that  the 


question  in  each  case  must  be  decided  on  the 
facts  therein,  and  that  the  discretion  of  the 
court  was  unlimited ;  and  that  the  fact  of  8. 
having  made  an  application  to  the  Court  of 
Bankruptcy  did  not  deprive  him  of  his  right  to 
proceed  in  the  actions,  as  such  application 
only  related  to  the  chattels,  and  not  to  the  real 
estate.  Sharp  v.  Mc Henry y  55  L.  T.  747— 
Kay,  J. 

Pending  Appeal  from  Bankruptcy  Noties.]— 
See  ante,  col.  113. 


3.  TRANSFER  OP  PROCEEDINGS. 

Notice— Parties  to  be  Served.] — Notice  of  an 
application  to  transfer  the  proceedings  in  a 
bankruptcy  from  a  county  court  to  the  High 
Court,  or  vice  versa,  must  be  served  upon  the 
official  receiver.  Jack,  In  re,  18  Q.  B.  D.  682  j 
35  W.  R.  735  ;  4.  M.  B.  R.  150— Cave,  J. 

Upon  an  application  for  transfer  of  proceed- 
ings, notice  should  be  served  on  the  bankrupt 
and  the  official  receiver,  notwithstanding  that  a 
trustee  may  have  been  appointed.  Trustee,  Ess 
parte,  Yapp,  In  re,  55  L.  T.  820 — Cave,  J.  See 
also  Andrews,  Ex  parte,  Andrew*,  In  re,  ante, 
col.  113. 

When  ordered— Proof.] — When  an  application 
is  made  under  s.  102,  sub-s.  4,  of  the  Bankruptcy 
Act,  1883,  for  the  transfer  of  an  action  penning 
in  another  Division  of  the  High  Court,  some 
proof  must  be  adduced  that  advantage  is  likely 
to  be  derived  by  reason  of  such  transfer  to  the 
judge  in  bankruptcy.  Whether  in  a  case  where 
a  receiving  order  has  been  made,  but  the  debtor 
has  not  been  adjudicated  a  bankrupt,  the  court 
has  any  jurisdiction  to  make  such  order,  quaere. 
Official  Receiver^  Ex  parter  White,  In  re,  1  M. 
B.  R.  77— Cave,  J. ' 

. Discretion-Appeal.]— There  is  no  abso- 
lute rule  that  a  question  relating  to  the  estate 
of  a  bankrupt  ought  to  be  determined  by  the 
Court  of  Bankruptcy,  and  not  by  the  High 
Court,  whenever  the  trustee  in  the  bankruptcy 
is,  by  virtue  of  the  bankruptcy  law,  claiming  by 
a  higher  title  than  that  of  the  bankrupt  himself. 
It  is  a  matter  of  judicial  discretion  in  each  case 
how  the  question  shall  best  be  tried.  In  such  a 
matter  the  Court  of  Appeal  ought  not  readily  to 
overrule  the  discretion  of  the  bankruptcy  judge. 
Reynold*,  Est  parte,  Barnett,  In  re,  15  Q.  B.  D. 
169 ;  54  L.  J..  Q.  B.  354  ;  63  L.  T.  448  ;  33  W. 
R.  715  ;  2  M.  B,  R.  147— C.  A. 

To  what  Court  and  to  whom  made.l — On  4th 
February  a  receiving  order  was  made  against 
one  partner  in  the  High  Court ;  and  on  6th 
February  the  other  partner  presented  a  petition 
in  a  county  court.  On  an  application  by  the 
partner  against  whom  a  receiving  order  had 
been  made  in  the  High  Court  for  an  order  to 
transfer  the  proceedings  in  the  county  court 
against  the  other  partner  to  the  High  Court :— - 
Held,  that  the  application  for  transfer  ought  to- 
be  made  to  the  county  court  and  that  in  any; 
event  the  application  was  one  that  ought  to  haTftj 
been  made  to  the  registrar  and  not  to  the  judgtj 
in  court.  NiehoUon,  Ex  parte,  Nicholson,  2* 
re,  3  M.  B.  R.  46—  Cave,  J. 


197 


BANKRUPTCY— Practice. 


198 


An  application  for  the  transfer  of  bankruptcy 
proceedings  from  the  London  Court  of  Bank- 
ruptcy to  the  county  court  is  an  application 
which  should  be  made  to  the  bankruptcy  judge 
at  chambers.  Official  Receiver,  Ex  parte,  Wil- 
liam, In  re,  5  M.  B.  R.  103— Cave,  J. 

Two  partners  in  trade  presented  a  bankruptcy 
petition  in  a  county  court.  Their  statement  of 
affairs  showed  that  they  had  lost  nearly  200,000/. 
in  fire  years'  trading.  Some  of  the  creditors  ap- 
plied to  the  judge  for  a  certificate  that  in  his 
opinion  the  proceedings  would  be  more  advan- 
tageously conducted  in  the  London  court.  The 
judge  refused  the  application,  on  the  ground  that 
it  was  premature,  An  appeal  was  presented,  but 
vis  afterwards  withdrawn,  and  on  this  occasion 
some  correspondence  took  place  between  the  soli- 
ctors of  the  applicants  and  the  solicitors  of  other 
creditors  who  opposed  the  proposed  transfer.  The 
application  was  afterwards  renewed,  and  there 
was  evidence  that  the  debtors  owed  a  large 
amount  to  creditors  in  London,  Liverpool,  and 
other  places,  and  that,  in  order  to  carry  out  a 
proper  investigation  of  their  accounts,  it  would 
be  necessary  to  refer  to  the  books  of  various 
merchants  in  London  with  whom  they  had 
traded,  and  also  to  the  books  of  their  bankers 
and  of  the  bankers'  London  agents.  The  judge 
refosed  the  application,  on  the  ground  that  the 
applicants  were  estopped  by  the  correspondence 
between  the  solicitors  from  making  it : — Held, 
that  there  was  no  such  estoppel,  and  that,  as  the 
judge  had  therefore  decided  on  a  wrong  ground, 
he  had  in  effect  refused  to  exercise  his  dis- 
cretionary power,  and  there  was  an  appeal  from 
hk  decision :  that  under  the  circumstances  the 
proceedings  would  be  more  advantageously  con- 
ducted in  the  London  court,  and  that  the  certi- 
ficate asked  for  ought  to  have  been  granted,  and 
the  Divisional  Court  itself  granted  the  certificate. 
&n*t,  Ex  parte,  Walker,  In  re,  13  Q.  B.  D. 
4W ;  1  M.  B.  B.  193— D. 

Costs.] — If  an  agreement  not  to  renew  the  ap- 
plication for  a  certificate  had  been  in  fact  entered 
into  between  the  solicitors  of  the  applicants  and 
the  solicitors  of  the  other  creditors,  it  could  not 
have  affected  the  power  of  the  court  to  make  the 
certificate,  though  it  might  have  affected  the 
right  of  the  applicants  to  costs. — Per  Cave,  J. 
Order  made  that  the  applicants  should  have  their 
easts  out  of  the  debtors*  assets,  in  case  the  cre- 
ditors should  ultimately  approve  of  the  proposed 
transfer.    lb. 


4.  EVIDENCE. 

vr**  Voce — Leave.] — Where  in  a  case  to  be 
featd*.  before  the  judge  in  bankruptcy  it  is 
desired  to  use  viva  voce  evidence,  the  applica- 
tion for  leave  to  give  such  viva  voce  evidence 
must  be  made  beforehand  to  the  judge  and  not 
to  the  registrar.  Adamson,  Ex  parte,  Hagan, 
h  re,  3M.RR.  117— Cave,  J. 

Viva  voce  evidence  in  support  of  a  motion  may 
be  given  at  the  hearing ;  but  special  leave  for 
tbat  purpose  must  be  previously  obtained. 
Stanley,  Ex  parte,  Qeneae,  In  re,  17  Q.  B.  D. 
1;56L.J.,Q.B.  326;  34  W.  R.  474  ;  3M.B.B. 
57-Cave,  J. 

Where  parties  agree  that  the  evidence  on  the 
tearing  of  a  motion  shall  be  taken  viva  voce 
instead  of  by  affidavit,  it  is  unnecessary  to  obtain 


the  leave  of  the  judge,  but  written  notice  must 
be  given  to  the  clerk  of  the  court,  who  will  enter 
the  case  in  a  special  list  of  motions  to  be  heard 
with  viva  voce  evidence,  and  an  application  must 
subsequently  be  made  to  the  court  to  fix  a  day 
for  the  hearing  of  the  motion.  Where  there  is  no 
such  agreement  a  motion  for  leave  to  take  the 
evidence  viva  voce  must  be  made  in  the  usual 
way.  Budden,  Ex  parte,  Under  hill,  In  re,  18 
Q.  B.  D.  115  ;  35  W.  R.  336 ;  3  M.  B.  B.  282— 
Cave,  J. 

County  Court.]— The  rule  laid  down,  that 

leave  to  use  viva  voce  evidence  at  the  hearing 
of  a  motion  in  bankruptcy  must  be  obtained  on 
a  separate  application  made  before  the  motion 
comes  on  to  be  heard,  does  not  apply  to  the 
county  courts.  Watkin*  or  Watkinton,  Ex 
parte,  Wilton,  In  re,  57  L.  T.  201  ;  35  W.  B.  668  ; 
4M.B.B.  238— D. 

Affidavit  sworn  Abroad.]— When  an  affidavit 
or  proof  in  bankruptcy  is  sworn  abroad  before  a 
British  consul,  or  vice-consul,  a  notarial  certifi- 
cate in  verification  of  the  signature  and  qualifi- 
cation of  the  consul  or  vice-consul,  is  not 
required.  The  notarial  certificate  is  only 
required  when  such  an  affidavit  or  proof  is 
sworn  before  a  foreign  functionary.  Magee,  Ex 
parte,  Magee,  In  re  15  Q.  B.  D.  332 ;  54  L.  J., 
Q.  B.  394  ;  33  W.  B.  655— Cave,  J. 

Of  Custom-— Witnesses.] — Where  the  fact  of  a 
custom  existing  in  a  particular  trade  has  to  be 
decided,  the  case  is  one  proper  to  be  tried  with 
the  assistance  of  a  jury,  and  with  witnesses,  and 
not  upon  affidavit  evidence  only.  Callow,  Ex 
parte,  Jensen,  In  re,  4  M.  B.  B.  1 — D. 

Publio  Examination  of  Bankrupt — Admissi- 
bility of.] — The  answers  of  a  bankrupt  on  his 
public  examination  are  not  admissible  in  sub- 
sequent motions  in  the  same  bankruptcy  against 
parties  other  than  the  bankrupt  Upon  a 
motion  by  the  trustee  against  a  creditor  to 
set  aside  as  fraudulent  a  transfer  of  certain 
goods  to  him  by  the  bankrupt,  the  trustee 
tendered  in  evidence  the  answers  of  the  bank- 
rupt upon  his  public  examination : — Held,  that 
such  evidence  was  not  admissible.  Board  of 
Trade,  Ex  parte,  Brunner,  In  re,  19  Q.  B.  D. 
572  ;  56  L.  J.,  Q.  B.  606  ;  57  L.  T.  418  ;  35  W.  B. 
719  ;  4  M.  B.  B.  255— Cave,  J. 


5.  COSTS. 

Trustees'  Solicitor— Scale  where  Assets  do  not 
exceed  £300— Costs  "  payable  out  of  the  Estate."] 
—By  the  Bankruptcy  Rules,  1886,  r.  112  : 
(2)  Subject  to  the  provisions  of  No.  1  of  the 
scale  of  costs,  where  the  estimated  assets  of  the 
debtor  do  not  exceed  the  sum  of  3002.  a  lower 
scale  of  solicitors*  costs  shall  be  allowed  in  all 
proceedings  under  the  act  in  which  costs  are 
payable  out  of  the  estate.  The  trustee  having 
been  ordered  by  the  court  to  pay  the  costs 
of  unsuccessful  proceedings  under  the  act  with 

S>wer  to  recover  them  out  of  the  estate  : — 
eld,  that  such  costs  were  not  liable  to  be  taxed 
upon  the  lower  scale  above  mentioned.  Jaynea, 
Ex  parte,  Dovoson,  In  re,  21  Q.  B.  D.  417 ;  57 

E  2 


199 


BANKRUPTCY— Practice. 


200 


L.  J.,  Q.  B.  522  ;  59  L.  T.  446  ;  36  W.  R.  864  ; 
5  M.  B.  R.  240— Cave,  J. 

Sale  of  Bankrupt'!  Property  inbjeot  to 

Incumbrances.] — Where  the  property  of  a  bank- 
rapt  is  sold  subject  to  incumbrances,  the  solicitor 
of  the  trustee  in  bankruptcy  is — under  r.  9  of 
Schedule  I.  of  the  General  Order  under  the 
Solicitors'  Remuneration  Act,  1881,  and  the 
Bankruptcy  Rules,  1886,  General  Regulations, 
Part  Vn.,  r.  2 — entitled  to  a  percentage  on  the 
gross  amount  of  the  purchase-money  and  not 
merely  on  the  amount  realised  from  the  equity 
of  redemption.  Harris,  Ex  parte,  Gallard,  In 
re,  21  Q.  B.  D.  3&  ;  57  L.  J.,  Q.  B.  628 ;  59  L.  T. 
147  ;  86  W.  R.  592  ;  5  M.  B.  R.  123— Cave,  J. 


Administrative   Work— Work   done. 


When  a  trustee  in  bankruptcy  has,  with  the  au- 
thority of  the  committee  of  inspection,  employed 
a  solicitor  to  assist  him  in  the  performance  of 
his  duties  as  trustee  in  reference  to  the  distribu- 
tion of  the  bankrupt's  estate,  the  giving  of 
notices,  and  winding-up  the  bankruptcy,  the 
costs  of  such  solicitor  must  be  taxed  upon  the 
principle  that  a  solicitor  is  not  to  charge  solici- 
tor's charges  for  administrative  work,  but  only 
such  charges  as  are  fair  and  reasonable,  having 
regard  to  the  work  done.  Board  of  Trade,  Ex 
parte,  Pryor,  In  re,  59  L.  T.  256 ;  5  M.  B.  R. 
232— Cave,  J. 

Costs  of  Taxation.]— Under  an  ordinary 

reference  to  tax  the  costs  of  the  solicitor  to  a 
trustee  in  bankruptcy,  the  taxation  is  regulated  by 
the  practice  of  the  Court  of  Bankruptcy,  and  the 
provisions  of  the  Act  6  &  7  Vict.  c.  73,  have  no 
application.  There  is  no  rule  in  the  Court  of 
Bankruptcy  that,  if  on  such  a  taxation  the 
amount  of  the  solicitor's  bill  is  reduced  by  more 
than  one-sixth,  he  is  to  pay  the  costs  of  the 
taxation.  Marsh,  Ex  parte,  Marsh,  In  re,  15 
Q.  B.  D.  340  ;  54  L.  J.,  Q.  B.  557  ;  53  L.  T.  418  ; 
34  W.  R.  620  ;  2  M.  B.  R.  232— C.  A. 

Review  of  Taxation  of  Bill.] — An  appli- 
cation by  the  Board  of  Trade  for  a  review  of 
taxation  of  the  costs  of  a  solicitor  under  r.  104  of 
the  Bankruptcy  Rules,  1883,  can  only  be  made 
for  the  benefit  of  the  estate,  and  where  there  is  no 
estate  and  no  trustee  such  rule  will  not  apply. 
Phillips,  Ex  parte,  Rod  way,  In  re,  1  M.  B.  R. 
228— Wills,  J. 

Order  for  Taxation  as  between  Solicitor  and 
Client — Time  for.] — Rule  98  of  the  Bankruptcy 
Rules,  1883,  only  empowers  the  court  to  direct 
that  costs  shall  be  taxed  and  paid  as  between 
solicitor  and  client  at  the  time  when  the  order 
is  made  awarding  the  costs.  If  such  a  direction 
is  not  given  at  that  time,  the  court  has  no  power 
to  give  it  subsequently.  Shoolbred,  Ex  parte, 
Angell,  In  re,  14  Q.  B.  D.  298 ;  54  L.  J.,  Q.  B. 
87  ;  51  L.  T.  678  ;  33  W.  R.  202  ;  2  M.  B.  R.  5— 
C.A. 

— -  Taxation  refused.] — On  the  bankruptcy 
of  G.  his  father  tendered  a  proof,  which  was 
objected  to  as  to  two-thirds  by  the  trustee  and 
expunged  by  the  county  court  judge.  The  proof, 
after  amendment,  was  again  rejected  and  ex- 
punged, against  which  an  appeal  was  lodged. 
Pending  the  hearing  of  the  appeal  the  trustee 
was  advised  that  the  proof  was  good,  and  entered 


into  a  compromise  with  G.  (the  rather),  whereby 
his  claim  was  considerably  reduced  on  the  terms 
that  his  costs  and  those  of  an  opposing  creditor 
should  be  taxed  as  between  solicitor  and  client. 
Against  a  refusal  to  order  taxation  the  trustee 
appealed  : — Held,  that  the  refusal  was  right; 
that  the  application  to  the  county  court  judge 
for  an  order  for  taxation  amounted  to  an  invita- 
tion to  him  to  declare  that  his  unreversed  decision 
was  wrong  ;  and  that  the  costs  must  be  paid  by 
the  trustee  personally.  Edmunds,  Ex  parte, 
Oreen,  In  re,  53  L.  T.  967— D. 


Consent  Order — Approval  by  Court]— 


Where  a  form  of  order  by  consent  in  a  motion 
contained  an  agreement  by  one  of  the  parties— 
the  trustee  in  bankruptcy — to  pay  the  costs  of 
the  other  "  as  between  solicitor  and  client"  :— 
Held,  that  such  a  form  of  order  could  not  be 
approved  by  the  court.  Scantlebury,  Ex  parte, 
Guy,  In  re,  4  M.  B.  R.  30O— Cave,  J. 

Of  Petitioner — Power  of  Court  to  order.]— 
The  second  meeting  of  creditors  under  a  bank- 
ruptcy petition  (held  to  consider  the  confirmation 
of  a  scheme  of  arrangement  of  the  debtor's  affaire 
accepted  at  the  first  meeting)  is  not  a  "  proceed- 
ing in  court "  within  the  meaning  of  sub-s.  1  of 
8. 105  of  the  Bankruptcy  Act,  1883,  and  the  court 
has  no  power  to  order  the  costs  of  the  petitioner 
incidental  to  that  meeting  to  be  paid  out  of  the 
debtor's  estate.  But  the  court  has  power  to 
order  the  petitioner's  costs  incidental  to  the 
public  examination  of  the  debtor  to  be  paid  oat 
of  the  estate.  Board  of  Trade,  Ex  parte, 
Strand,  In  re,  13  Q.  B.  D  492  ;  63  L.  J.,  Q.  B. 
563  ;  1  M.  B.  R.  196— D. 

Payment  to  Creditor  —  Protection  of 

Estate.] — Where  a  petitioning  creditor  incurs 
costs  in  trying  to  protect  the  estate,  and  the 
official  receiver  comes  to  the  conclusion  that  the 
estate  has  been  thereby  substantially  benefited, 
these  costs  should  in  general  be  allowed  and 
paid  to  the  petitioning  creditor.  Angier,  Bx 
parte,  Johnstone,  In  re,  32  W.  R.  1001  ;  1  M.  B. 
R.  213— Cave,  J. 

Shorthand  Notes.] — It  is  the  invariable  prac- 
tice of  the  Bankruptcy  Court  to  refuse  the  costs 
of  shorthand  writer's  notes  unless  the  application 
is  made  at  the  commencement  of  the  case.  Reid, 
Ex  parte,  Gillespie,  In  re,  33  W.  R.  707— 
Cave,  J. 

Against  Board  of  Trade.]  —  Although  the 
Board  of  Trade  act  in  a  public  capacity,  the 
court  will  not  in  a  proper  case  consider  them  as 
differing  from  an  ordinary  litigant.  Phillips, 
Ex  parte,  Rodway,  In  re,  1  M.  B.  R.  282— 
Wills,  J. 

Payment  to  Applicant  of  Balance  paid  to 
Trustee.  ]  —  The  bankrupts  were  stockbrokers 
who  had  been  employed  by  the  applicant  to  buy 
certain  specific  shares  for  him,  and  had  received 
payment  for  the  same.  These  shares,  with  others, 
were  deposited  by  the  bankrupts  with  B.  &  Co., 
as  security  for  an  advance.  When  the  bank- 
ruptcy became  known  B.  &  Co.  sold  the  shares, 
reimbursed  themselves,  and  handed  over  the 
balance  to  the  trustee.  Upon  the  applicants 
sending  in  a  claim  for  the  balance  another 
claimant  retired : — Held,  that  the  money  might 


201 


BANKRUPTCY— Appeal. 


202 


be  paid  over  to  the  applicant  on  the  terms  that 
his  solicitor  would  give  a  personal  undertaking 
to  repay  so  much  as  the  court  might  order  at 
any  time  within  three  years.  Held,  also,  that 
the  costs  of  the  applicant  most  be  borne  by  him, 
since  it  would  be  unjust  that  the  expense  of 
enforcing  his  claim  should  be  borne  by  the 
general  body  of  the  creditors.  Ranhart,  Ex 
prte,  Blaheway,  In  re,  52  L.  T.  630— Cave,  J. 

Costs  against  Bankrupt.]— See  ante,  col.  188. 

Costs  against  Trustee.]— See  ante,  col.  94. 

Costs  of  Appeal.] — See  infra. 

XIX.    APPEAL. 

1.  Jurisdiction. 

2.  Parties. 

3.  In  what  Cases. 

4.  Notice  of— Time  for. 

5.  The  Deposit — Security  for  Costs. 

6.  Leave  to  Appeal. 

7.  Costs. 

8.  Other  Points. 

1.  JURISDICTION. 

To  what  Court.] — All  appeals  from  decisions 
of  the  High  Court  of  Justice  in  bankruptcy 
matters,  whether  given  in  court  or  chambers,  lie 
to  her  Majesty's  Court  of  Appeal  and  not  to  a 
divisional  court  of  the  High  Court.  Oastler,  Ex 
/arte,  Friedlandcr,  In  re,  51  L.  T.  309— C.  A. 

Agreement  for  Costs  of  Solicitor.]— A  solicitor 
agreed  to  conduct  certain  bankruptcy  proceed- 
ings on  the  terms  that  his  costs  should  not 
exceed  10/.  In  the  course  of  the  proceedings 
his  clients  left  him  and  employed  other  solicitors, 
sad  he  sent  in  a  bill  of  costs  for  a  larger  amount 
than  101.  The  county  court  judge,  sitting  in 
bankruptcy,  declared  the  agreement  to  be  void, 
because  it  did  not  contain  a  provision  that  the 
solicitor  originally  employed  might  conduct  the 
bankruptcy  proceedings  to  an  end.  At  the  hear- 
ing of  the  appeal  a  preliminary  objection  was 
lodged  on  behalf  of  the  respondent  that  the 
court  sitting  as  a  court  of  appeal  in  bankruptcy 
matters  only,  had  no  jurisdiction  to  deal  with 
the  question  at  all : — Held,  that  by  virtue  of  the 
Bankruptcy  Amendment  Act,  1884,  the  court 
had  jurisdiction  to  hear  the  appeal.  Payton, 
B*  parte,  Owen,  In  re,  52  L.  T.  628  ;  2  M.  B.  R. 
87— D. 

2.  PARTIES. 

"Person  aggrieved."]— An  unpaid  creditor  of 
a  bankrupt  is  a  "  person  aggrieved  "  by  the  im- 
proper granting  of  an  order  of  discharge  to  the 
bankrupt,  and  as  such  is  entitled  to  appeal 
against  the  order.  Castle  Mail  Packets  Com- 
P*y*  &t  parte,  Payne,  In  re,  18  Q.  B.  D.  154  ; 
56  L.J.,  Q.  B.  626  ;  35  W.  R.  89 ;  3  M.  B.  R.  270 
-€.A 

When  an  application  made  by  the  official 
leceiver  under  s.  20  of  the  Bankruptcy  Act, 
1883,  and  r.  191  of  the  Bankruptcy  Rules,  1886, 
for  an  immediate  adjudication  of  bankruptcy 
■gainst  a  debtor,  on  the  non-approval  of  a 
ttheme  of  arrangement,  has  been  refused  or 


adjourned,  the  official  receiver  is  a  "  person 
aggrieved  "  by  the  order,  and  as  such  is  entitled 
to  appeal  against  it.  (Fry,  L.J.,  dissenting.) 
Official  Receiver,  Ex  parte,  Reed,  In  re,  19 
Q.  B.  D.  174  ;  56  L.  J.,  Q.  B.  447  ;  56  L.  T.  876  ; 
35  W.  R.  660  ;  4  M.  B.  R.  225— C.  A. 

Board  of  Trade— Order  of  Discharge.] — Rule 
237  of  the  Bankruptcy  Rules,  1886,  which  gives 
the  Board  of  Trade  a  right  to  appeal  from  an 
order  of  discharge  where  the  official  receiver  has 
reported  facts  which  would  justify  the  refusal  of 
an  unconditional  discharge,  is  a  rule  for  carrying 
into  effect  the  objects  of  the  Bankruptcy  Act, 
1883,  within  the  meaning  of  s.  127,  and  is  there- 
fore valid.  Board  of  Trade,  Ex  parte,  Stainton, 
In  re,  19  Q.  B.  D.  182  ;  67  L.  T.  202  ;  36  W.  R. 
667  ;  4  M.  B.  R.  242— D. 


of  Court  to  order  Witness 
to  answer.] — When  an  appeal  is  brought  against 
the  refusal  of  the  court  to  order  a  witness  to 
answer  questions  put  to  him  during  his  exami- 
nation, the  witness  cannot  be  made  a  party  to 
the  appeal.  Tilly,  Ex  parte,  Scharrer,  In  re, 
20  Q.  B.  D.  518 ;  59  L.  T.  188 ;  36  W.  R.  388  ; 
6M.B.B.  79— C.  A. 


3.  IN  WHAT  CASE8. 

Court  of  Appeal— Special  Case.]— An  appeal 
lies  to  the  Court  of  Appeal  from  the  decision 
of  the  High  Court  upon  a  special  case  fop  its 
opinion  stated  by  a  county  court  judge  sitting 
in  bankruptcy  under  sub-s.  3  of  s.  97  of  the 
Bankruptcy  Act,  1883.  Dawes,  Ex  parte,  Moon, 
In  re,  17  Q.  B.  D.  275  ;  56  L.  T.  114 ;  34  W.  R. 
752  ;  3  M.  B.  R.  106— C.  A. 

Summons  wrongly  entitled  "  In  Bankruptcy."] 
— The  judge  of  a  county  court  not  having  juris- 
diction in  bankruptcy  made  an  order  of  com- 
mittal against  the  appellant  upon  a  judgment 
summons  under  s.  5  of  the  Debtors  Act,  1869. 
The  judgment  summons  having  by  mistake  been 
marked  with  the  words  "  In  bankruptcy,"  an 
appeal  was  brought  to  the  divisional  court : — 
Held,  that  no  appeal  could  lie  from  the  order 
complained  of,  to  the  divisional  court  in  bank- 
ruptcy. Watkins,  Ex  parte,  Wathins,  In  re,  3 
M.  B.  R.  146— D. 

Application  for  Directions — Bight  of  Debtor 
to  be  heard.] — Where  a  trustee  in  a  liquidation 
applied  to  the  county  court  for  directions  as  to 
the  acceptance  of  an  offer  for  the  purchase  of 
the  debtors'  property,  and  notice  was  given  to 
the  debtors,  but  at  the  hearing  of  the  applica- 
tion the  county  court  judge  refused  to  hear  the 
solicitor  for  the  debtors  or  to  receive  evidence 
on  their  behalf : — Held,  that  notice  having  been 
given  to  the  debtors,  they  ought  to  have  been 
heard,  and  that  an  appeal  lay  from  such  refusal 
of  the  county  court  judge  to  do  so.  Whether, 
when  a  trustee  applies  to  the  court  for  directions 
in  any  particular  matter,  the  debtor  is,  in  any 
event,  entitled  to  appear  and  be  heard,  qussre. 
Webb,  Ex  parte,  Webb,  In  re,  4  M.  B.  R.  52— 
Cave,  J. 

Transfer  of  Proceedings— Certificate  of  Judge.] 
— The  refusal  of  the  judge  of  a  county  court  to 
grant  a  certificate,  under  rule  16  of  the  Bank- 


203 


BANKRUPTCY— Appeal. 


204 


ruptcy  Rules,  1883,  that  in  his  opinion  the  pro- 
ceedings under  a  bankruptcy  petition  would  be 
more  advantageously  conducted  in  another  court, 
is  an  order  from  which  an  appeal  lies,  if  the 
judge  has  refused  to  exercise  his  discretion  in 
the  matter.  In  such  a  case  the  Court  of  Appeal, 
if  it  is  of  opinion  that  the  certificate  ought  to 
have  been  granted,  will  not  refer  the  matter 
back  to  the  county  court,  but  will  itself  grant 
the  certificate.  Soane*.  Ex  parte,  Walker,  In  re, 
13  Q.  B.  D.  484  ;  1  M.  B.  R.  193— D. 

Order  refusing  Prosecution  of  Bankrupt.] — An 

appeal  will  lie  to  the  divisional  court  from  the 
refusal  of  the  county  court  judge  to  order  the 
prosecution  of  a  fraudulent  bankrupt.  Jones, 
Ex  parte,  Stephen*,  In  re,  2  M.  B.  R.  20— D. 

Order  for  Discharge.]— Semble,  that  an  order 
made  in  the  county  court  under  the  Bankruptcy 
(Discharge  and  Closure)  Act,  1887,  being  an 
order  made  in  a  bankruptcy  matter,  may  be 
appealed  from  to  the  Divisional  Court  in  Bank- 
ruptcy, though  no  right  of  appeal  is  expressly 
given  by  the  act  itself.  William*,  Ex  parte, 
William*,  In  re,  5  Jf .  B.  R.  162— D. 

From  Receiving  Orders.]- See  ante,  VI.,  4,  c. 

Small  Bankruptcy — No  Leave  to  Appeal,  ] — 

Upon  an  appeal  against  the  decision  of  a  county 
court  registrar  sitting  in  bankruptcy  a  pre- 
liminary objection  was  lodged  that,  the  case 
being  one  of  a  small  bankruptcy  under  s.  121 
of  the  Bankruptcy  Act,  1883,  the  leave  to  appeal 
rendered  necessary  by  r.  199  of  the  Bankruptcy 
Rules,  1883,  had  not  been  obtained.  On  a  con- 
tention that  this  rule  was  ultra  vires: — Held, 
that  the  appeal  could  not  be  heard,  that  this 
right  of  appeal  was  not  a  common  law  but  a 
statutory  right,  and  that  the  same  statute  which 
gave  the  right  of  appeal  was  competent  to  give 
an  authority  to  modify  the  right  by  general  rules 
framed  in  a  prescribed  manner.  Dale,  Ex  parte, 
Dale,  In  re,  52  L.  T.  627  ;  33  W.  R.  476 ;  2 
M.  B.  R.  92— D. 

Application  for  Discharge.]— Rule  273  (6) 

of  the  Bankruptcy  Rules,  1886,  which  provides  that 
in  small  bankruptcies  no  appeal  shall  lie  from 
any  order  of  the  court  except  by  leave  of  the 
court,  does  not  preclude  the  debtor  from  appeal- 
ing, without  leave,  against  a  refusal  to  grant  him 
his  discharge.  Rankin,  Ex  parte,  Rankin,  In  re 
(No.  1),  20  Q.  B.  D.  341  ;  58  L.  T.  120 ;  36  W.  R. 
626;  4  M.  B.  R.  311— D. 

Leave  obtained  after  Notice  of  Appeal.]— 

In  a  small  bankruptcy  under  section  121  of  the 
Bankruptcy  Act,  1883,  an  appeal  to  the  Divisional 
Court  was  heard,  although  the  leave  of  the 
county  court  judge  was  not  obtained  when  the 
notice  of  appeal  was  given  and  served.  Gibson, 
Ex  parte,  Stockton,  In  re,  2  M.  B.  R.  189— D. 

Appointment  of  Trustee — Time.] — The 

difficulty  caused  by  the  refusal  of  a  county  court 
judge  to  give  leave  to  appeal  from  an  order 
made  by  him  in  a  small  bankruptcy  cannot  be 
got  rid  of  by  the  creditors,  after  such  leave  has 
been  refused,  appointing  a  trustee  under  s.  121 
of  the  Bankruptcy  Act,  1883,  whereupon  "  the 
bankruptcy  shall  proceed  as  if  an  order  for 
summary  administration  had  not  been  made,"  at 


any  rate  where  the  appeal  by  such  trustee  is  not 
brought  within  21  days.  Whether  the  difficulty 
can  be  so  got  rid  of,  even  though  the  trustee 
appointed  does  appeal  within  that  time,  qucre. 
March,  Ex  parte,  Richard*,  In  re,  4  M.  B.  R. 
233— D. 


4.  NOTICE  OF— TIME  FOR. 

Notice — Debtor  not  shewing  cause  agtiut 
Petition.] — When  a  debtor  gives  no  notice  under 
r.  36  of  nis  intention  to  shew  cause  against  a 
bankruptcy  petition,  and  the  petition  is  con- 
sequently heard  in  his  absence,  and  the  court 
refuses  to  make  an  adjudication,  if  the  petitioning 
creditor  desires  to  appeal  against  the  refusal  he 
must  serve  notice  of  the  appeal  on  the  debtor. 
Warburg,  Ex  parte,  Whalley,  In  re  (No.  1),  24 
Ch.  D.  364  ;  53  L.  J.,  Ch.  336  ;  49  L.  T.  243— 
C.  A. 


Substituted  Service.] — In  a  proper  case 


the  Court  of  Appeal  has  jurisdiction  to  make  an 
order  for  substituted  service  of  a  notice  of 
appeal,  though  no  express  provision  to  that 
effect  is  contained  in  the  rules  of  court.   lb. 

Time  for — Appeal  from  Registrar.  ]  —An  appeal 
from  the  decision  of  the  registrar  declining  to 
make  a  receiving  order  must  be  brought  within 
twenty-one  days.  Dear,  Ex  parte,  CourUn*^, 
In  re,  1M.6.B.  89— C.  A. 


From  County  Court  to  Judge.]— Unlert 


the  notice  of  appeal  appears  on  the  face  of  it  to 
have  been  filed  within  twenty-one  days,  it  is 
incumbent  upon  an  appellant  to  be  prepared 
with  evidence  to  shew  that  the  notice  was  sent 
off  to  the  registrar  of  the  county  court  "  forth* 
with."  Hill,  Ex  parte,  Darbyshire,  In  re,  68 
L.  J.,  Ch.  247— C.  J.  B. 

Notice  sent  by  Post] — If  notice  of  a 

bankruptcy  appeal  is  sent  by  post,  as  provided 
by  s.  142  of  the  Bankruptcy  Act,  1883,  qna» 
whether  the  notice  will  be  in  time  unless  the 
letter  is  received  by  the  respondent  before  the 
expiration  of  the  twenty-one  days  limited  for 
appealing.  Arden,  Ex  parte,  Arden,  In  re,  or 
Arden  v.  Deacon,  14  Q.  B.  D.  121  ;  51  L.  T.  712; 
33  W.  a  460  ;  2  M.  B.  R.  1— D. 

Rejection  of  Proof.] — If  a  creditor  desires 


to  appeal  against  the  rejection  of  his  proof  by 
the  trustee,  he  must  give  notice  of  motion  in  the 
usual  way  under  r.  19  of  the  Bankruptcy  Bales, 
1883,  and  within  twenty-one  days  limited  by 
r.  174.  Morruon,  Ex  parte,  Gillespie,  In  re,  H 
Q.  B.  D.  385  ;  52  L.  T.  55  ;  33  W.  R.  751 ;  1 
M.  B.  R.  278— Cave,  J. 

Application  for  Discharge.]— Notioe  of 

appeal  from  an  order  made  by  the  court  on 
application  by  a  bankrupt  for  his  discharge 
should  be  a  fourteen  days'  notice.  Where  such 
notice  was  not  given  and  the  objection  was 
taken  at  the  hearing,  the  court  directed  the  case 
to  stand  over  for  a  week  until  the  required  time 
had  elapsed.  Brown,  Ex  parte,  Landau,  In  re, 
4  M.  B.  R.  253— C.  A. 

m 

Setting    aside   Bankruptcy  Votise.]— 

Notice  of  appeal  from  the  refusal  of  an  order  to 


i 


*K 


BANKRUPTCY— Appeal. 


206 


set  ante  *  bankruptcy  notice  should  be  a  four- 
teen days'  notice.  Where  such  notice  was  not 
gran,  the  court  directed  the  case'  to  stand  over 
to  *  certain  daj  until  the  required  time  had 
elapsed,  and  that  notice  was  to  be  given  to  the 
creditor  that  the  court  had  appointed  such  day 
far  the  bearing  of  the  appeal.  Phillips,  Ex 
jerit,  Phillips,  In  re,  5  M.  B.  R.  187— D. 

—  Mention  of— Bona  tide  Mistake— Delay.] 

—Although  the  time  allowed  for  appeal  in  bank- 
ruptcy matters  may  be  'extended  by  the  court, 
jet  some  ground  must  always  be  shown  why 
this  should  be  done.  Where  a  bona  fide  mistake 
in  the  estimation  of  a  proof  has  been  committed, 
the  trustee  in  bankruptcy  ought  not  to  be  per- 
nutted  to  take  advantage  of  such  a  mistake,  but 
ifaen  a  creditor  took  no  steps  to  reverse  the 
decision  of  a  county  court  judge  refusing  to 
aQov  such  proof  to  be  amended  or  withdrawn 
lor  more  than  a  year  and  a  half,  the  court  could 
tot  permit  the  case  to  be  reopened.  Charles, 
Expert*,  Tricks,  In  re,  3  M.  B.  R.  15— Cave,  J. 


5.  THE  DEPOSIT— SECURITY  FOR  COST8. 


it,  dispensing  with— Appeal  by  Board 

•tirade.] — In  the  case  of  an  appeal  to  the  Divi- 
soul  Court  in  Bankruptcy  by  the  Board  of 
Trade,  Rule  131  of  the  Bankruptcy  Rules,  1886, 
does  not  apply,  and  the  Board  of  Trade  being  a 
government  department  is  entitled  to  have  the 
appeal  entered  without  lodging  any  deposit. 
Herd  of  Trade,  Ex  parte,  Mutton,  In  re,  4  M. 
B.  &  116— D. 

—  Bankrupt  unable  to  find  Amount] — 
Where  an  application  was  made  by  a  bankrupt 
voder  Rule  131  of  the  Bankruptcy  Rules,  1886, 
far  leave  to  dispense  with  the  deposit  of  201.  re- 
quired to  be  lodged  upon  an  appeal  by  him  from 
sa  order  of  the  registrar  refusing  to  annul  the 
adjudication: — Held,  that  the  inability  of  the 
ssakrupt  himself  to  find  the  means  for  making 
the  deposit,  or  to  obtain  the  necessary  sum  from 
hs  friends,  did  not  constitute  such  grounds  as 
would  justify  the  court  in  granting  the  applica- 
tion, Orepe,  Ex  parte,  Orepe,  In  re,  4  M.  B.  R. 
U6-C.A. 

• 

Where  an  application  was  made  by  a  debtor 
who  had  presented  a  bankruptcy  petition  against 
himself,  to  dispense  with  the  deposit  of  201. 
lequired  to  be  lodged  upon  an  appeal  against  a 
detisfcm  of  the  registrar  rescinding  the  receiving 
oner  at  the  request  of  the  official  receiver  under 
ft.  14  of  the  Bankruptcy  Act,  1883  :—  Held,  that 
the  debtor's  alleged  inability  to  raise  the  neoe*- 
mrj  sum  did  not  on  the  facts  of  the  case  consti- 
tute such  a  special  circumstance  under  r.  113  of 
the  Bankruptcy  Rules,  1883,  as  to  justify  the 
«urt  in  granting  the  application.  Robertson, 
**,2M.B.  R.117— C.  A. 

— -  IsttsasiBs;  Amount  of  Deposit.]— The 
deposit  paid  by  a  bankrupt  on  entering  a  bank- 
ztftey  appeal  was  ordered  to  be  increased,  on 
the  ground  that  he  had  been  already  engaged  in 
ffotocted  and  uniformly  unsuccessful  litigation 
■na  the  respondents  respecting  the  matters  in 
pas**.  McHenry,  In  re,  17  Q.  B.  D.  361 ;  66 
LJ.,Q.B.4t6;  86  W.  R.  20— C.  A. 


Security  for  Coots— Proof  by  Creditor  rssids&t 
Abroad.] — The  court  has  no  jurisdiction  to  order 
a  creditor  resident  abroad,  who  is  appealing 
from  the  rejection  of  his  proof  by  the  trustee, 
to  give  security  for  the  costs  of  such  appeal. 
Izard,  Ex  parte,  Vanderhaege,  In  re,  20  Q.  B.  D. 
146  ;  68  L.  T.  236  ;  36  W.  R.  626  ;  5  M.  B.  R.  27 
— Cave,  J. 


6.  LEAVE  TO  APPEAL. 

When  granted.] — Upon  a  question  of  fact  the 
Court  of  Appeal  will  not  give  leave  to  appeal  to 
the  House  of  Lords.  Miles,  En  parte,  Isaacs, 
In  re,  16  Q.  B.  D.  47— C.  A. 

Where  the  sum  at  stake  is  not  large  and  the 
court  entertains  no  doubt  as  to  the  principle  in- 
volved, leave  to  appeal  to  the  Court  of  Appeal 
will  not  be  given.  Wolverhampton  Banking 
Company,  Ex  parte,  Campbell,  In  re,  14  Q.  B. 
D.  37— D. 

To  what  Court  application  made.] — An  appli- 
cation for  leave  to  appeal  under  s.  2  of  the 
Bankruptcy  Appeals  (County  Court)  Act,  1884, 
from  the  decision  of  a  divisional  court  sitting  as 
a  court  of  appeal  from  a  county  court  in  bank- 
ruptcy, should  be  made  in  the  first  instance  to  a 
divisional  court.  Niekoll,  Em  parte,  Walker, 
In  re,  1  M.  B.  R.  249— C.  A. 

Such  an  application  for  leave  to  appeal  ought 
to  be  made  to  the  divisional  court  immediately 
after  such  divisional  court  has  pronounced  its 
decision.    lb. 

From  County  Courts — Terms.] — In  granting 
leave  to  appeal  a  county  court  judge  ought  not 
to  limit  or  qualify  his  leave  to  appeal.  Serjeant, 
Ex  parte,  Bandars,  In  re,  62  L.  T.  516—  D. 

Amount  involved  under  602.]— Rule  111  (2) 
of  the  Bankruptcy  Rules,  1883,  which  provides 
that  no  appeal  to  the  Court  of  Appeal  shall  be 
brought  from  any  order  relating  to  property 
when  it  is  apparent  from  the  proceeding  that  the 
money  or  money's  worth  involved  does  not  ex- 
ceed 50Z.,  unless  by  leave  of  the  court,  was 
authorised  by  s.  127  of  the  Bankruptcy  Act,  1883, 
taken  in  connexion  with  s.  104,  sub-s.  2  (d)  : — 
Quaere,  whether,  even  if  a  rule  was  made  in 
excess  of  the  power  given  by  s.  127,  it  would, 
after  it  had  been  laid  before  Parliament  and 
issued,  acquire  the  force  of  a  statute  under  s.  127 
(2).  Foreman,  Ex  parte,  Hann,  In  re,  18  Q.  B.  D. 
393  ;  66  L.  J.,  Q.  B.  161 ;  56  L.  T.  820  ;  35  W.  R. 
370  ;  4  M.  B.  R.  16— C.  A. 

Receiving  Order  rescinded  —  Summary  Ad- 
ministration.]—On  2nd  July,  1886,  a  receiving 
order  was  made  against  the  debtor,  and  on 
15th  July,  1886,  an  order  for  the  summary 
administration  of  the  estate.  On  10th  Septem- 
ber, 1886,  an  application  by  the  debtor  to 
rescind  the  receiving  order  was  allowed  ;  the 
petitioning  creditor  having  appealed  against 
such  rescission,  the  objection  was  taken  that  no 
leave  to  appeal  had  been  obtained,  but  the 
court  allowed  the  appeal  to  proceed.  Whether 
in  such  a  case  where  the  receiving  order  has  been 
rescinded,  an  appeal  by  the  petitioning  creditor 
against  the  rescission  is  an  appeal  against  an 
order  made  in  a  summary  administration  for 


207 


BANKRUPTCY— Appeal. 


208 


which  leave  is  necessary,  Quaere.    Bay  net,  Ex 
parte,  Clarke,  In  re,  4  M.  B.  R.  80— D. 


In  Small 
col.  203. 


Bankruptcies.]  —  See  cases  ante, 


7.    COSTS. 


Appearance  of  Trustee.  ]— A  trustee  in  bank- 
ruptcy who  is  served  with  notice  of  an  appeal, 
and  who  appears,  and  only  asks  for  his  costs, 
will  not  be  allowed  his  costs  of  appearance. 
Arden,  Ex  parte,  Arden,  In  re,  or  Arden  v. 
Deacon,  14  Q.  B.  D.  121  ;  61  L.  T.  712  ;  33  W.  R. 
460  ;  2  M.  B.  R.  1— D. 

Official  Receiver  appearing.]— As  a  general 
rule,  and  in  the  absence  of  special  circumstances, 
the  official  receiver  ought  not  to  appear  upon  the 
hearing  of  an  appeal,  unless  he  is  required  to  do 
so  by  the  court,  and,  if  he  appears  unnecessarily, 
he  will  not  be  allowed  any  costs.  He  is  not 
justified  in  appearing  merely  to  defend  his  report. 
Reed,  Ex  parte,  Heed,  In  re,  17  Q.B.  D.  244  ;  55 
L.  J.,  Q.  B.  244  ;  34  W.  R.  493  ;3M.B.  R.  90— 
C.  A. 

As  a  general  rule  the  official  receiver,  though 
served  with  a  notice  of  appeal,  ought  not  to 
appear  on  the  hearing,  unless  there  are  special 
circumstances  which  he  desires  to  bring  before 
the  court,  and,  in  the  absence  of  special  circum- 
stances, he  will  not  be  allowed  his  costs  of 
appearance.  Dixon,  Ex  parte,  Dixon,  In  re, 
13  Q.  B.  D.  118 ;  53  L.  J.,  Ch.  769 ;  50  L.  T. 
414  ;  32  W.  R.  837  ;  1  M.  B.  R.  98— C.  A. 

The  official  receiver  will  not  be  allowed  his 
costs  of  appeal,  even  if  he  was  served  with  notice 
of  appeal,  unless  his  appearance  was  necessary. 
White,  Ex  parte,  White,  In  re,  14  Q.  B.  D.  600— 
C.A. 

Creditors  appearing.]— Creditors  served  with 
notice  of  appeal  by  a  bankrupt,  from  an  order 
granting  him  a  conditional  discharge,  will  not 
be  allowed  their  costs  of  appearing  on  the 
hearing  of  the  appeal  when  the  official  receiver 
or  trustee  appears.  Salaman,  Ex  parte,  Sola- 
man,  In  re,  14  Q.  B.  D.  936— C.  A. 

Official  Receiver  —  Successful  Appellant  — 
Priority.] — An  order  made  by  a  county  court, 
on  the  application  of  the  official  receiver,  setting 
aside  a  payment  made  by  a  debtor  as  a  fraudulent 
preference,  having  been  reversed  on  appeal : — 
Held,  that  the  costs  of  the  appellants  and  of  the 
official  receiver  in  both  courts  must  be  paid  out 
of  the  debtor's  assets,  the  costs  of  the  appellants 
having  priority.  Leicestershire  Banking  Com- 
pany, Ex  parte,  Dale,  In  re,  14  Q.  B.  D.  48  ;  33 
W.  R.  354— D. 

Preliminary  Objection— Notice.]— The  solicitor 
of  a  respondent,  if  he  is  aware  of  a  preliminary 
objection  to  an  appeal,  ought,  as  a  matter  of 
courtesy,  to  inform  his  opponent  of  it  without 
delay,  but  the  omission  to  do  so  is  not,  if  the 
appeal  is  dismissed  on  the  preliminary  objection, 
a  sufficient  reason  for  depriving  the  respondent 
of  the  costs  of  the  appeal.  Speight,  In  re  (13 
Q.  B.  D.  42),  and  Blease,  Ex  parte  (14  Q.  B.  D. 
123),  not  followed.  Shead,  Ex  parte,  Mvndy, 
In  re,  15  Q.  B.  D.  338  ;  53  L.  T.  655  ;  2  M.  B.  R. 
227— C.  A. 

When  the  respondent  to  an  appeal  intends  to 


take  a  preliminary  objection  he  should  give  notice 
to  the  appellant  of  his  intention  so  to  do.  If  so 
such  notice  is  given  and  the  objection  prevails, 
the  appeal  will  be  dismissed  without  costs. 
Brooks,  Ex  parte,  Speight,  In  re,  13  Q.  B.  D.  42— 
Cave,  J. 

A  respondent  to  an  appeal  who  intends  to  rely 
on  a  preliminary  objection  ought  to  give  notice 
to  the  appellant  of  his  intention  so  to  do.  If  he 
does  not,  and  the  objection  is  successful,  the 
appeal  will  be  dismissed  without  costs.  Speight, 
In  re  (13  Q.  B.  D.  42)  followed.  Blease,  E* 
parte,  Blinkhom,  In  re,  14  Q.  B.  D.  123 ;  33 
W.  R.  432 ;  1  M.  B.  R.  280— D. 

Shorthand  Writer's  Notes.] — As  a  general 
rule  the  application  to  allow  the  costs  of  short- 
hand writer's  notes  of  evidence  as  the  costs  of  a 
successful  appellant  should  be  made  at  the 
hearing,  but  the  mere  omission  to  make  the 
application  then  does  not  prevent  its  being  made 
subsequently  : — Semble,  if  the  application  is 
made  on  a  subsequent  day  and  is  successful,  the 
court  ought  to  make  the  applicant  pay  the  costs 
of  the  application,  as  they  were  caused  by  his 
own  omission.  Steed,  Ex  parte,  Day,  In  re,  33 
W.  R.  80  ;  1  M.  B.  R.  251— Cave,  J. 

By  whom  Appointed.] — Where  the  short- 
hand writer  is  appointed  at  the  instance  of  one 
party,  he  cannot  recover  the  costs  of  the  notes  un- 
less under  special  circumstances.  Where  the 
appointment  is  made  by  both  parties,  the  costs 
should  be  paid  by  the  unsuccessful  party.    lb. 


8.  OTHER  POINTS. 

Solicitor's  Bight  of  Audience.]— The  right  of 
audience  given  to  a  solicitor  in  bankruptcy 
matters  by  s.  151  of  the  Bankruptcy  Act,  1883, 
is  limited  to  the  High  Court,  and  does  not  extend 
to  the  Court  of  Appeal.  Russell,  Ex  parte, 
Elderton,  In  re,  4  M.  B.  R.  36 — C.  A.  See  Rey- 
nolds, Ex  parte,  Barnett,  In  re,  ante,  coL  193. 

Application  to  Stay  Proceedings— To  what 
Court  made.] — Where  an  application  was  made 
to  a  divisional  court  of  which  the  judge  in 
bankruptcy  was  not  a  member,  for  an  order  to 
stay  proceedings  pending  an  appeal  from  an 
order  of  a  county  court  judge : — Held,  that  the 
divisional  court  had  no  jurisdiction  to  hear  or 
decide  the  application.  Moon,  In  re,  3  M.  B.  B. 
74— D. 

Refusal  of  Registrar  to  carry  out  Order- 
Procedure  to  compel  Obedience.] — Upon  appeal 
from  a  county  court  in  a  bankruptcy  proceeding, 
the  divisional  court  allowed  the  appeal,  and 
ordered  money,  which  had  been  paid  into  the 
county  court  to  abide  the  result  of  the  appeal, 
to  be  paid  out  to  the  appellant  The  divisional 
court  also  gave  leave  to  appeal  to  the  Court  of 
Appeal,  but  made  no  order  for  a  stay  of  pro- 
ceedings. The  registrar  of  the  county  court 
having  refused  to  pay  out  the  money  until  the 
time  for  appealing  to  the  Court  of  Appeal  had 
elapsed  : — Held,  that  the  refusal  was  unjustifi- 
able, but  that,  the  registrar  being  an  officer  of 
the  county  court,  the  divisional  court  had  no 
jurisdiction  over  him  personally  to  enforce  com- 
pliance with  the  order.  Croydon  County  Gtmrt 
(Registrar),  Ex  parte,  or  Brown,  Ex  parte, 


909 


BARRISTER. 


210 


Wife,  In  re,  17  Q.  B.  D.  389 ;  55  L.  J.,  Q.  6. 
362;  54  L.  T.  722 ;  34  W.  R.  711  ;  3  M.  B.  R. 
174-C.  A. 


XX.    ADMINISTRATION  OF  INSOLVENT 
E8TATB8  DT  BANKRUPTCY. 

Jurisdietion— Order  affecting  Rights  of 
stranger.] — A  county  court  judge  Bitting  in 
bankruptcy  has  no  jurisdiction,  unless  by  con- 
sent, to  order  payment  to  the  official  receiver  of 
money  received  under  a  garnishee  order  attach- 
ing a  debt  due  to  the  estate  of  a  deceased  debtor, 
which  is  being  administered  according  to  the  law 
of  bankruptcy  under  s.  125  of  the  Bankruptcy 
Act,  1883.  Ellis,  Ex  parte,  Orowther,  In  re,  20 
Q.  B.  D.  38 ;  57  L.  J.,  Q.  B.  57 ;  58  L.  T.  115  ; 
36  W.  R.  189  ;  4  M.  B.  R.  305— D. 

To  order  Transfer.] — Where  a  testator, 

having  previously  carried  on  business  in  England, 
was  for  more  than  six  months  previous  to  his  death 
an  inmate  of  a  lunatic  asylum  in  Scotland,  and 
died  insolvent,  and  an  administration  action  was 
commenced  by  a  creditor  ;  on  motion,  on  behalf 
of  the  plaintiff  : — Held,  that  the  court  had  juris- 
diction, under  sub-s.  4  of  s.  125  of  the  Bank- 
ruptcy Act,  1883,  to  make  an  order  transferring 
the  proceedings  to  the  county  court  within  the 
jurisdiction  of  which  the  testator  formerly  car- 
ried on  his  business.  Senhovse  v.  Mawson,  52 
L  T.  745— V.-C.  B. 

Transfer  when  Ordered.] — The  power  given 
by  a.  125  of  the  Bankruptcy  Act,  1883,  to  transfer 
the  proceedings  in  an  action  brought  for  the 
administration  of  an  insolvent  estate  to  the 
Court  of  Bankruptcy,  is  a  discretionary  one,  and 
it  will  not  be  exercised  where  the  estate  is  small, 
the  number  of  creditors  is  small,  and  consider- 
able expense  has  been  already  incurred  in 
chambers  in  the  proceedings  under  an  adminis- 
tration judgment : — Semble,  that  an  application 
for  transfer  can  only  be  made  by  a  creditor  who 
has  absolutely  proved  his  debt.  Weaver,  In  re, 
Biggs  t.  Weaver,  29  Ch.  £>.  236 ;  54  L.  J.,  Gh. 
749 ;  52  L.  T.  512  ;  33  W.  R.  874— Pearson,  J. 

Order,  how  made — Time.]— When  proceedings 
far  the  administration  of  a  deceased  debtor's 
estate  have  been  commenced  in  the  Chancery 
Division  of  the  High  Court,  and  an  order  has 
been  made,  under  sub-s.  4  of  s.  125  of  the 
Bankruptcy  Act,  1883,  for  the  transfer  of  the 
proceedings  to  the  court  exercising  jurisdiction  in 
bankruptcy,  that  court  may  make  an  adminis- 
tration order  on  an  ex  parte  application  by  a 
creditor,  but  the  order  cannot  be  made  until  the 
expiration  of  two  months  from  the  date  of  the 
pant  of  probate  or  letters  of  administration, 
unless  with  the  concurrence  of  the  legal  personal 
representative,  or  unless  it  is  proved  that  the 
debtor  committed  an  act  of  bankruptcy  within 
three  months  prior  to  his  decease.  May,  Ex 
parte,  May,  In  re,  13  Q.  B.  D.  552  ;  1  M.  B.  R. 
233-D. 

Under  s.  125  of  the  Bankruptcy  Act,  1883,  a 
transfer  to  the  county  court  may  be  ordered 
after  judgment  and  further  subsequent  proceed- 
ings in  the  administration  action.  Any  right 
<*  retainer  of  the  legal  personal  representative, 
when  the  transfer  will  be  for  the  benefit  of 
the  creditors  generally,  cannot  be  permitted  to 


stand  in  the  way  of  a  transfer  being  ordered. 
York,  In  re,  Atkinson  v.  Powell,  36  Ch.  D.  233  \ 
56  L.  J.,  Ch.  552  ;  56  L.  T.  704  ;  35  W.  R.  609— 
Stirling,  J. 

Discovery— Order  for  Examination  of  Debtor's 
Widow.  ]— The  provisions  of  s.  27  of  the  Bank- 
ruptcy Act,  1883,  do  not  apply  to  an  adminis- 
tration of  the  estate  of  a  person  dying  insolvent 
under  s.  125  of  the  Act.  There  is  no  power  in 
cases  of  such  administration,  either  under  s.  27 
or  under  r.  58  (Bankruptcy  Rules,  1883),  to 
summon  a  person  to  be  examined  for  the  purpose 
of  discovery  of  the  deceased  debtor's  estate. 
Hewitt,  Ex  parte,  Hewitt,  In  re,  15  Q.  B.  D. 
159  ;  54  L.  J.,  Q.  B.  402  ;  53  L.  T.  156  ;2M.B. 
R.  184— D. 

Avoidance  of  Voluntary  Settlements.]— Sec- 
tion 47  of  the  Bankruptcy  Act,  1883,  which 
avoids  certain  voluntary  settlements  executed  by 
a  bankrupt,  does  not  apply  to  the  administration 
of  the  estate  of  a  deceased  insolvent  by  the  court 
of  bankruptcy  under  s.  125  of  the  Act.  Official 
Receiver,  Ex  parte,  Gould,  In  re,  19  Q.  B.  D.  92  -r 
56  L.  J.,  Q.  B.  333  ;  56  L.  T.  806  ;  35  W.  R.  569  ; 
4  M.  B.  R.  202— C.  A. 

Savings  Bank  Officer— Priority.  ] — The  actuary 
of  a  savings  bank  died  insolvent,  owing  the 
bank  money  received  in  his  capacity  of  actuary : 
— Held,  that  in  an  action  in  the  Chancery  Divi- 
sion for  the  administration  of  the  actuary's 
estate  the  bank  would  be  entitled  to  priority  by 
virtue  of  s.  14  of  the  Savings  Banks  Acts,  1863  ; 
but  that  s.  40  of  the  Bankruptcy  Act,  1883,  takes 
away  the  right  to  such  priority  in  bankruptcy 
proceedings.  Section  1 25  of  the  Bankruptcy  Act, 
1883,  discussed.  Williams,  In  re,  Jones  v.  Wil- 
liams, 36  Ch.  D.  573 ;  57  L.  J.,  Ch.  264 ;  57  L.  T. 
756  ;  36  W.  R.  34— North,  J. 

Landlord's  Claim  for  Bent — What  Arrears.] — 
Upon  the  construction  of  ss.  42  and  125  of  the 
Bankruptcy  Act,  1883,  an  order  obtained  in  the 
Chancery  Division  by  a  creditor  for  administra- 
tion of  a  deceased  debtor's  estate,  not  followed 
by  any  proceedings  in  bankruptcy,  is  not  equiva- 
lent to  or  included  in  the  term  "  order  of  adju- 
dication "  (s.  42)  so  as  to  limit  the  power  of  the 
landlord,  or  other  person  to  whom  rent  is  due 
from  the  deceased  person's  estate,  to  recover  by 
distress  one  year's  rent  only  accrued  due  prior 
to  the  date  of  the  administration  order.  Fry- 
man's Estate,  In  re,  Fryman  v.  Fryman,  38  Ch. 
D.  468  ;  57  L.  J.,  Ch.  862  ;  58  L.  T.  872  ;  36  W. 
R.  631— Chitty,  J. 


BARRISTER. 

Conduct  of  Action — Authority  to  Compro- 
mise.]— On  the  trial  of  an  action  for  malicious 
prosecution,  the  defendant's  counsel,  in  the  ab- 
sence of  the  defendant  and  without  his  express 
authority,  assented  to  a  verdict  for  the  plaintiff 
for  3501.  with  costs  upon  the  understanding  that 
all  imputations  against  the  plaintiff  were  with- 
drawn : — Held,  that  this  settlement  was  a  matter 
which  was  within  the  apparent  general  authority 
of  counsel,  and  was  binding  on  the  defendant. 


211 


BASTARDY. 


212 


Matthews  v.  Munster,  20  Q.  B.  D.  141 ;  57  L.  J., 
Q.  B.  49  ;  57  L.  T.  922  ;  36  W.  R.  178  ;  52  J.  P. 
260— C.  A. 

Undertaking  not  to  Appeal.] — Counsel 

has  authority  to  undertake  on  behalf  of  his 
clients  not  to  appeal,  and  not  the  less  so  after 
the  judge  has  given  judgment  on  the  merits. 
West  Bevon  Great  Consols  Mine,  In  re,  38 
Ch.  D.  51 ;  57  L.  J.,  Ch.  850  ;  58  L.  T.  61  ;  36 
W.  R.  342— C.  A. 

Admission  of  Facts— Proof  dispensed  with.]— 
At  the  trial  of  an  action  counsel  for  one  of  the 
parties  made  an  admission  that  an  order  made 
by  the  Court  of  Session  in  Scotland,  nomi- 
nating the  curator  of  a  lunatic  subscriber  to  the 
Customs  Annuity  and  Benevolent  Fund  on  be- 
half of  the  lunatic  as  "  nominee,"  had  the  same 
effect  as  if  it  had  been  a  nomination  made  by  the 
subscriber  himself  (being  sane),  but  the  judge 
did  not  consider  himself  bound  by  that  admis- 
sion, and  held  that  the  Scotch  court  had  no  juris- 
diction to  appoint  a  "  nominee  "  on  behalf  of  the 
lunatic  subscriber  : — Held,  that  as  the  question 
of  the  jurisdiction  of  the  Scotch  court  to  make 
such  an  order  was  a  question  of  fact,  proof  of 
which,  like  proof  of  other  facts,  might  be  dis- 
pensed with  by  the  admission  of  counsel,  the 
judge  was  wrong  in  going  into  that  question. 
Urquhart  v.  Butterfyld,  37  Ch.  D.  357;  57 
L.  J.,  Ch.  521  ;  57  L.  T.  780  ;  36  W.  R.  376— 
C.  A. 

Jurisdiction  of  Court  to  Commit  —  Untrue 
Affidavits.] — On  a  motion  to  commit  a  barrister 
and  counsel  in  a  case  to  prison  for  contempt  of 
court,  the  court  held  that  it  is  the  barrister's 
duty  when  he  knew  affidavits  were  about  to  be 
used  which  amounted  to  chicanery  to  disclose 
the  fact,  and  that  his  fault  did  not  consist  in  not 
throwing  up  his  brief,  but  in  having  made  him- 
self a  party  to  a  fraud,  by  conspiring  with  others 
in  inducing  a  person  to  make  these  affidavits, 
which  were  used  to  delude  the  court.  Linwood 
v.  Andrews,  58  L.  T.  612— Kay,  J. 

In  Canada  —  Recovering  Fees — Petition  of 
Sight.] — According  to  the  law  of  Quebec,  a 
member  of  the  bar  is  entitled,  in  the  absence  of 
special  stipulation,  to  sue  for  and  recover  on  a 
quantum  meruit  in  respect  of  professional  ser- 
vices rendered  by  him,  and  may  lawfully  con- 
tract for  any  rate  of  remuneration  which  is  not 
contra  bonos  mores,  or  in  violation  of  the  rules  of 
the  bar.  Where  a  member  of  the  bar  of  Lower 
Canada  (Quebec)  was  retained  by  the  govern- 
ment as  one  of  their  counsel  before  the  Fisheries 
Commission  sitting  in  Nova  Scotia  : — Held,  that 
in  absence  of  stipulation  to  the  contrary,  express 
or  implied,  he  must  be  deemed  to  have  been 
employed  on  the  usual  terms  according  to  which 
such  services  are  rendered,  and  that  his  status 
in  respect  both  of  right  and  remedy  was  not 
affected  either  by  the  lex  loci  contractus  or  the 
lex  loci  solutionis.  Kennedy  v.  Brown  (13  C.  B., 
N.  S.  677)  commented  upon.  Reg.  v.  Boutre,  9 
App.  Cas.  745  ;  53  L.  J.,  P.  C.  84  ;  51  L.  T.  669— 
P.  C. 

Held,  further,  that  the  Petition  of  Right 
{Canada)  Act,  1876,  s.  19,  sub-s.  3,  does  not  in 
such  case  bar  the  remedy  against  the  Crown  by 
petition.     lb. 


BASTARDY. 

Service  of  Summons — "  Last  Place  of  Abode/'] 
— A  bastardy  summons  was  on  the  18th  Kay  left 
at  the  house  of  a  baker  at  Sunbury,  in  whose 
employ  the  defendant  had  been  from  the  25th 
September  previous  to  the  20th  April,  when  he 
went  to  Southampton  and  took  lodgings  there, 
but  left  certain  effects  at  the  former  place  until 
the  14th  May,  when  he  removed  them.  On  the 
19th  May  he  sailed  for  the  West  Indies  with  a 
ship  on  which  he  had  obtained  a  situation  ;— 
Held,  that  the  summons  was  left  at  his  last  place 
of  abode  within  the  meaning  of  the  4th  section 
of  the  Bastardy  Laws  Amendment  Act,  1872, 
and  that  the  justices  had  therefore  jurisdiction 
on  the  hearing  of  it  to  make  an  order  against 
him  in  his  absence.  Reg.  v.  Lee,  58  L.  T.  384 ; 
36  W.  R.  415  ;  52  J.  P.  344— D. 

A  bastardy  summons  was  taken  out  on  8th 
October,  and  served  on  the  defendant  by  being 
left  at  the  house  of  the  defendant's  father  where 
the  defendant  had  lived  for  some  years,  bat  the 
father  stated  to  the  constable  who  served  the 
summons  that  his  son  had  gone  away  and  that 
he  did  not  know  where  he  was.  The  defendant 
afterwards  made  an  affidavit,  in  which  he  said 
that  in  September  he  left  his  father's  house  as 
he  had  found  employment  with  a  farmer  at 
Gloucester,  that  he  had  no  intention  of  return- 
ing, and  that  from  26th  September  to  12th  May 
he  had  lived  continuously  in  lodgings  where  he 
was  employed,  and  that  he  knew  nothing  of  the 
summons  until  he  saw  a  report  of  it  in  a  news- 
paper : — Held,  by  Manisty,  J.,  that  his  father's 
house  was  "  the  last  place  of  abode  "  of  the  de- 
fendant and  that  the  service  was  good,  following 
Reg.  v.  Higham  (7  E.  &  B.  557),  but  held  by 
Stephen,  J.,  that  the  defendant's  "  last  place  of 
abode  "  was  at  Gloucester,  and  that  the  service 
at  the  father's  house  was  bad,  following  Reg.  v. 
Evans  (19  L.  J.,  M.  C.  151).  Reg.  v.  Be  Winter 
59  L.  T.  382— D.   See  S.  C.  in  C.  A.,  53  J.  P.  292. 

In  Scotland— Jurisdiction  of  Justice*.] 

— The  Summary  Jurisdiction  (Process)  Act,  1881 
(44  &45  Vict.  c.  24),  does  not  enable  a  bastardy 
summons  to  be  issued  by  justices  in  England  and 
served  in  Scotland  upon  the  putative  father 
domiciled  and  resident  in  Scotland;  and  if  a  sum- 
mons is  so  served  and  the  putative  father  does  not 
appear  before  the  justices  they  have  no  juris- 
diction to  make  a  bastardy  order  against  him. 
Berkley  v.  Thompson^  10  App.  Cas.  45  ;  54  L.  J., 
M.  C.  57  ;  52  L.  T.  1  ;  33  W.  R.  525  ;  49  J.  P. 
276— H.  L.  (E.). 

Evidence — Power  to  compel  Witnesses  to 
Answer.]— By  7  &  8  Vict.  c.  101,  s.  70,  justices 
may,  at  the  request  of  any  party  to  bastardy 
proceedings  before  them,  summon  any  person  to 
appear  and  give  evidence  upon  the  matter  of 
such  proceedings,  and  if  the  person  summoned 
neglect  or  refuse  to  appear,  the  justices,  by  war- 
rant, may  require  such  person  to  be  brought 
before  them  or  any  justices  before  whom  such 
proceedings  are  to  be  had,  "  and  if  any  person 
coming  or  brought  before  any  such  justice  in 
any  such  proceedings  refuse  to  give  evidence 
thereon,"  the  justices  may  commit  such  person 
to  the  house  of  correction : — Held  (A.  L.  Smith,  JM 
dissenting),  that  the  power  to  commit  extended 


213 


BASTARDY. 


214 


to  any  witness,  and  was  not  confined  to  witnesses 
who  appeared  in  answer  to  a  summons  or  war- 
nut  Reg.  v.  Flavell,  14  Q.  B.  D.  364  ;  52  L.  T. 
133;  33  W.R.  343  ;  49  J.  P.  406— D. 

Order— Defect  in  issue  of  Summons — Waiver.] 
—By  the  3rd  section  of  the  Bastardy  Laws 
Amendment  Act,  1872  (35  &  36  Vict.  c.  65),  any 
single  woman  who  may  be  with  child,  or  who 
may  be  delivered  of  a  bastard  child,  may,  within 
the  time  therein  specified,  making  application  to 
any  one  justice  of  the  peace  acting  for  the  petty 
seasonal  division  of  the  county,  or  for  the  city, 
borough  or  place  in  which  she  may  reside,  for  a 
summons  to  be  served  on  the  man  alleged  by  her 
to  be  the  father  of  the  child,  u  and  such  justice 
of  the  peace  shall  thereupon  issue  his  summons 
to  the  person  alleged  to  be  the  father  of  such 
child  to  appear  at  a  petty  sessions  to  be  holden, 
after  the  expiration  of  six  days  at  least,  for  the 
petty  sessional  division,  city  or  borough,  or  other 
place  in  which  such  justice  usually  acts."  On  the 
15th  of  January,  1884,  a  single  woman  made 
application  under  this  section  to  a  justice,  who 
thereupon  issued  a  summons  to  the  putative 
father  to  appear  on  the  1st  of  February.  On  that 
day,  the  putative  father  objected  to  the  summons, 
on  the  ground  that  it  was  not  duly  served,  and 
thereupon  another  jastice  issued  a  fresh  summons, 
returnable  on  the  15th  February.  On  that  date 
the  case  was  heard  on  its  merits,  no  objection 
being  taken  to  the  summons,  and  an  order  was 
made  on  the  putative  father  for  payment  of  5*. 
per  week  : — Held,  on  rule  for  certiorari,  that  the 
iasoing  of  the  summons  by  a  justice  of  the  peace, 
other  than  the  justice  to  whom  the  application 
was  made,  was  an  irregularity  waived  by  the 
appearance  of  the  putative  father,  and  his  failing 
to  take  the  objection  at  petty  sessions,  and  not  an 
illegality  nullifying  the  order.  Reg.  v.  Fletcher, 
51  L.  T.  334  ;  32  W.  B.  828  ;  48  J.  P.  407— D. 

Io  Application  by  Mother  within  a  Year— 
Order  obtained  by  Guardians.]— On  the  3rd 
August,  1883,  the  respondent,  an  inmate  of  the 
workhouse  of  the  parish  of  8.,  gave  birth  to  a 
bastard  child.  On  the  26th  July,  1884,  while 
she  was  still  an  inmate  of  the  S.  workhouse  with 
her  ehild,  the  guardians  of  the  said  parish  applied 
for  a  bastardy  summons  against  the  appellant  as 
the  putative  father  of  the  child,  and  on  the  11th 
August,  1884,  an  order  was  made  against  the 
appellant,  adjudging  him  to  pay  a  weekly  sum 
towards  the  relief  of  the  child.  On  the  1st 
September,  1884,  the  appellant  paid  two  several 
suns  to  the  guardians  under  the  said  order,  but 
at  no  other  time  made  any  payment  either  to 
the  guardians  or  to  the  respondent.  Subse- 
quently the  respondent  discharged  herself  and 
her  child  from  the  workhouse,  so  that  the  child 
became  no  longer  chargeable  to  the  parish.  On 
the  8th  December,  1884,  the  respondent  applied 
for  a  bastardy  summons  against  the  appellant. 
The  summons  was  heard  on  the  22nd  December, 
and  the  appellant  appeared  and  contended  that 
the  order  could  not  be  made,  as  the  respondent 
was  too  late  in  her  application.  The  magis- 
trate made  the  order : — Held,  that  the  magis- 
trate had  no  jurisdiction  to  make  the  order,  as 
the  order  obtained  by  the  guardians  could  not  be 
treated  as  though  obtained  by  the  mother, 
whose  application  on  her  own  behalf  was  not 
made  until  more  than  twelve  months  after  the 

birth  of  the  child,  and  was  consequently  out  of 


time.    Billington  v.  Cyple*,  52  L.  T.  854  ;  49 
J.  P.  582— D. 


Dismissal  of  Application  on  the  Merits — Bes 
judicata.] — The  mother  of  a  bastard  child,  whose 
applications  at  petty  sessions  for  a  summons 
against  the  putative  father  are  dismissed,  may 
within  twelve  months  of  the  birth  of  the  child 
renew  such  application  any  number  of  times ; 
and  a  dismissal  on  the  merits  of  an  application  is 
no  bar  to  the  jurisdiction  of  the  justice  to 
entertain  a  fresh  application.  Beg.  v.  Hall,  57 
L.  T.  306— D. 

Appeal  to  Quarter  Sessions — Form  of  Notice 

of.  J — An  appeal  to  sessions  against  an  order 
made  on  a  bastardy  summons  can,  Bince  the 
passing  of  the  Summary  Jurisdiction  Act,  1884 
(47  &  48  Vict.  c.  43),  only  be  brought  subject  to 
the  conditions  and  regulations  contained  in  the 
Summary  Jurisdiction  Act,  1879  (42  &  43  Vict, 
c.  49).  The  notice  of  appeal  must  therefore 
state  the  general  grounds  of  appeal  as  required 
by  s.  31,  sub-s.  2,  of  that  act  Reg.  v.  Shitwler, 
or  Shingler  v.  Smith,  17  Q.  B.  D.  49  ;  55  L.  J., 
M.  C.  147  ;  54  L.  T.  759  ;  84  W.  R.  490;  51  J.  P. 
152— D. 


BEER-HOUSE  AND  BEER- 
SHOP. 

See  INTOXICATING  LIQUORS. 


BENEFICE. 

See  ECCLESIASTICAL  LAW. 


BENEFIT  SOCIETY, 

See  FRIENDLY  SOCIETY. 


BETTING. 


See  GAMING. 


BIGAMY. 


See  CRIMINAL  LAW. 


1 


215 


BILLS   OF  EXCHANGE,   CHEQUES,  ETC. 


216 


BILLS    OF    EXCHANGE, 

CHEQUES   AND 

PROMISSORY   NOTES. 

L  Form  and  Operation  of,  215. 
IL  The  Consideration,  216. 

III.  Parties  to,  217. 

IV.  Cheques,  218. 

Y.  Indorsement  and  Transfer,  220. 

VI.  Acceptance,  221. 

VII.  Presentment,  221. 

VIII.  Payment— Effect   of,   as   Payment, 
221. 

IX.  Actions  on. 

1.  Statute  of  Limitations,  222. 

2.  Damages,  223. 

X.  Appropriation    of   Property.  —  See 
Bankruptcy  (Property). 

XI.  Sending  with  Bills  of  Lading.— See 
Shipping  (Bills  of  Lading). 

I.     FORM  AND  OPERATION  OF. 

When  Negotiable.] — A  bill  of  exchange  was 
drawn  on  the  Bank  of  England  for  7,0002. 
"  which  sum  is  on  account  of  the  dividends  and 
interest  due  on  the  capital  and  deeds  registered 
in  the  books  of  the  "  bank  in  the  names  of  C.  and 
B.,  "  which  you  will  please  charge  to  my  account 
and  credit  according  to  a  registered  letter  I  have 
addressed  to  you": — Held,  that  the  bill  was 
negotiable.  Boyse,  In  re,  Crofton  v.  Crqfton, 
infra. 

Agreement  or  Promissory  Note.] — A  policy  of 
assurance  providing  for  payment  of  1002.  on  the 
18th  of  May,  1967,  or,  upon  notice  by  the  assured, 
of  the  surrender  value  of  his  policy  as  on  the 
18th  of  May  last  preceding  notice  to  surrender, 
such  value  to  be  fixed  according  to  specified 
tables,  is  chargeable  with  the  stamp  duty  of  6d. 
as  an  agreement,  and  not  with  the  stamp  duty  of 
Is.  as  a  promissory  note  for  1002.  Mortgage  In- 
surance Corporation  v.  Inland  Revenue  Commis- 
sioners, 21  Q.  B.  D.  352  ;  57  L.  J.,  Q.  B.  630 ;  36 
W.  R.  833— C.  A.    Affirming  58  L.  T.  766— D. 

At  the  trial  of  an  action  to  recover  money 
alleged  to  be  due  under  an  agreement,  the  plain- 
tiff put  in  evidence  (inter  alia)  the  following 
document : — "  1,  J.  Dawe,  promise  to  pay  J.  Yeo 
on  his  signing  a  lease  ....  the  sum  of  1502. — 
J.  Dawe."  The  document,  which  bore  a  penny 
stamp,  was  stamped  at  the  trial  as  an  agreement. 
The  plaintiff  alleged  that  it  embodied  the  result 
of  previous  negotiations  in  reference  to  a  lease. 
The  defendant  alleged  that  the  document  was 
a  promissory  note  within  s.  49  of  the  Stamp  Act, 
1870.  A  verdict  was  given  for  the  plaintiff,  and 
it  being  doubtful  whether  there  was  evidence  of 
the  agreement,  he  was  left  to  move  for  judg- 
ment : — Held  (diss.  Bowen,  L.J.),  that  the  docu- 
ment was  not  a   promissory  note  within  the 


meaning  of  s.  49  of  the  Stamp  Act,  1870,  inas- 
much as  that  act  does  not  apply  to  a  document 
which  is  neither  given  nor  accepted  as  a  pro- 
missory note  and  is  not  in  fact  such  a  note.  Yeo 
v.  Dawe,  53  L.  T.  125  ;  33  W.  R.  739— C.  A. 

Per  Bowen,  L  J.  The  section  applies  to  every 
document  which  substantially  comprises  an 
effective  promise  to  pay.    lb. 

Stamping.  ] — Section  51,sub-s.  2,  of  the  Stamp 
Act,  1870,  includes  bills  payable  on  demand. 
Therefore  a  bill  drawn  in  France  on  the  Bank 
of  England  was  properly  stamped  by  the  holder 
affixing  to  it  and  cancelling  a  penny  adhere 
stamp.  Boyse,  In  re,  'Crofton  v.  Crofton,  33 
Ch.  D.  612  ;  66  L.  J.,  6h.  135  ;  55  L.  T.  391 \ 
36  W.  R.  247— North,  J. 

As  Donatio  Mortis  Cans!  ]—See  Will. 


II.     THE    CONSIDERATION. 

Debt  in  Presenti  payable  in  Futuro.]— The  ex- 
istence of  an  agreement  by  which  A.  has  under- 
taken, for  good  consideration,  to  pay  B.  a  sum  of 
money  at  a  stipulated  time,  is  a  good  considera- 
tion for  a  promissory  note  for  the  same  sum  given 
by  A.  to  B.,  and  payable  on  demand.  Upon  a 
dissolution  of  partnership,  an  agreement  was 
entered  into,  which,  after  reciting  that  one  of  the  ' 
partners  had  brought  2,0002.  into  the  business, 
provided  that  the  other  partner  should  pay  him 
that  sum  within  three  years,  with  interest  at 
five  per  cent.,  in  full  satisfaction  of  all  his  share 
in  the  stock,  credits  and  effects  of  the  partner- 
ship, and  should  indemnify  him  against  trie  debts 
of  the  partnership.  Subsequently,  a  promissory 
note  for  the  same  2,0001.,  payable  on  demand, 
was  given  to  the  retiring  partner  : — Held,  that 
there  was  a  sufficient  consideration  for  the  note. 
Stott  v.  Fairlamb,  63  L.  J.,  Q.  B.  47  ;  49  L  T. 
525  ;  32  W.  R.  354— C.  A. 

Renewal  of  Promissory  Vote.] — A  promissory 
note  was  made  by  the  defendant  in  favour  of  the 
plaintiff,  and  the  jury  found  that  there  was  no 
consideration  for  that  note.  The  note  had  been 
renewed  from  time  to  time  during  a  period  of 
two  years  for  an  increased  amount  at  each  renewal 
without  any  further  pecuniary  or  tangible  con- 
sideration actually  passing.  An  action  was 
brought  on  the  last  note  so  made  : — Held,  that 
such  note  was  void  for  want  of  consideration. 
Forman  v.  Wright  (11  C.  B.  481)  and  Southall 
v.  Bigg  (11  C.  B.  481),  followed.  Edwards  v. 
Chancellor,  52  J.  P.  454 — D. 

Vote  given  for  Gambling  Transactions— In- 
dorsement.]— The  plaintiff  brought  an  action  to 
recover  the  amount  due  on  two  promissory  notes 
given  by  the  defendant  to  B.  in  respect  of  certain 
gambling  transactions  on  the  Stock  Exchange, 
and  indorsed  over  by  B.  to  the  plaintiff  for  valu- 
able consideration  :— Held,  that  the  plaintiff's 
right  to  recover  was  not  affected  by  the  fact  that 
he  had  notice  of  the  notes  having  been  given  by 
the  defendant  to  B.  in  respect  of  gambling  trans- 
actions, the  consideration  for  the  notes  not  being 
illegal,  but  falling  only  within  the  category  of 
void  contracts  under  8  &  9  Vict.  c.  109.  Lilley 
v.  Rankin,  56  L.  J.,  Q.  B.  248  ;  55  L.  T.  814— D. 

Validity— Security  for  Sums  secured  by  void 


217 


BILLS    OF    EXCHANGE,   CHEQUES,  ETC. 


218 


Mil  of  Bale.]— The  defendant  gave  the  plaintiffs 
a  bill  of  sale  of  personal  chattels  to  secure  the 
repayment  of  a  sum  of  money  and  interest ;  and 
at  the  same  time,  and  as  part  of  the  same  trans- 
action, gave  them  his  promissory  note  for  the 
payment  of  the  same  sum  and  interest  by  instal- 
ments of  the  same  amounts,  and  to  be  paid  on  the 
same  days,  as  provided  by  the  bill  of  sale.  The 
promissory  note  also  stipulated  that  in  the  event 
of  any  of  the  instalments  falling  into  arrear  the 
whole  amount  outstanding  should  immediately 
become  due  and  payable.  In  an  action  on  the 
promissory  note  : — Held,  that,  though  the  stipu- 
lation in  the  promissory  note  rendered  the  bill  of 
sale  void,  the  promissory  note  was  good,  and  the 
plaintiffs  were  entitled  to  recover.  Monetary 
Advance  Company  v.  Cater,  20  Q.  B.  D.  7S5  ;  57 
L.  J„  Q.  B.  463 ;  59  L.  T.  311— D. 


IH     PARTIES  TO. 

Drawn  on  Partnership— Acceptance  by  Firm 
and  one  Partner.]— A  bill  of  exchange  was  drawn 
against  a  firm  of  B.  k  Co.  B. ,  one  of  the  partners, 
accepted  the  bill,  signing  the  name  of  the  firm 
*B.  k  Co.,"  and  adding  his  own  underneath. 

B.  died,  and  the  holder  of  the  bill  took  out  an 
originating  summons  for  the  administration  of 
B.'s  estate,  on  which  an  order  was  made  for  the 
administration  of  the  estate,  distinguishing  the 
separate  from  the  partnership  debts : — Held, 
that  the  acceptance  of  the  bill  was  the  acceptance 
of  the  firm,  and  that  the  addition  of  B.'s  name 
did  not  make  him  separately  liable.  And,  it 
having  been  proved  that  B.'s  estate  was  insufficient 
lor  the  payment  of  his  separate  debts,  and  there- 
fore that  no  part  would  be  available  for  payment 
of  the  partnership  debts,  the  summons  was 
dismissed.  Barnard,  In  re,  Edwards  v.  Bar- 
nard, 32  Ch.  D.  447  ;  55  L.  J.,  Ch.  935 ;  55  L.  T. 
40 ;  34  W.  R.  782— C.  A. 

Acceptance   in   Name    of  Individual — 

Aatfcerity  to  accept.]— The  defendant,  a  partner 
in  a  firm  of  C.  Brothers,  agreed  with  her  co- 
partner that  the  partnership  should  be  dissolved, 
that  the  affairs  of  the  firm  should  be  liquidated  by 
an  agent,  who  should  realise  the  assets,  and  pay 
the  creditors,  and  that  the  business  should  there- 
after be  carried  on  by  the  defendant.  The 
defendant  and  the  agent  opened  a  joint  banking 
account,  and  requested  the  bank  to  honour  drafts 
signed  by  either  of  them.  Cheques  were  drawn 
on  the  joint  account,  signed  by  the  agent  in  the 
names  of  the  defendant  and  himself,  and  bills 
were  drawn  on  C.  Brothers,  and  accepted  by  the 
agent  in  the  names  of  the  defendant  and  himself, 
and  honoured.  The  defendant  knew  nothing  of 
these  cheques  and  bills.  The  plaintiff  sued  as 
indorsee  for  value  of  a  bill  of  exchange,  drawn  on 

C.  Brothers,  accepted  by  the  agent  in  the  names 
of  himself  and  the  defendant,  and  made  payable 
at  the  bank  where  the  joint  account  was  opened  : 
—Held,  that  the  agent  had  no  authority  to  accept 
the  bill  in  the  defendant's  name,  so  as  to  bind 
her,  and  that,  not  being  a  partner  in  the  firm  of 
C  Brothers,  he  had  no  authority  to  accept  bills 
drawn  on  the  firm,  and  the  defendant  was  not 
liable.  Kirk  v.  Blurton  (9  M.  k  W.  284)  com- 
mented on  and  distinguished.  Odell  v.  Cormaek, 
19  Q.  B.  D.  223— Hawkins,  J. 

Istiitd  Partner— Compromise  of  Actions.]— 


The  defendant  was  a  partner  in  the  firm  of 
G.  k  Co.  from  1st  January  to  30th  June,  1885, 
and  no  notice  was  given  to  the  plaintiff  of  his 
retirement.  Between  those  dates  the  plaintiff 
discounted  an  acceptance  indorsed  by  6.  k  Co., 
which  was  dishonoured.  The  plaintiff  sued 
G.  k  Co.  for  the  amount,  and  G.  k  Co.  brought  a 
cross-action  against  the  plaintiff  for  recovery  of 
the  bilL  Both  actions  were  stayed  by  order  of 
the  court  on  G.  k  Co.  giving  to  the  plaintiff  a 
second  acceptance  for  the  amount  of  the  first 
and  10/.  for  costs,  and  the  plaintiff  giving  up 
certain  securities  for  the  debt  which  were  in  his 
possession.  The  second  acceptance  was  dis- 
honoured, and  the  plaintiff  sued  the  defendant 
upon  it  as  a  member  of  the  firm  of  G.  k  Co. : — 
Held,  that  the  defendant  was  not  liable,  as  the 
bill  of  exchange  was  given  in  settlement  of  legal 

Eroceedings,  which  involved  a  give-and-take 
etween  the  parties,  and  was  made  without  his 
knowledge  or  consent  Crane  v.  Lewie,  36  W.  R. 
480 — Denman,  J. 

Director! — Bills  accepted  ultra  vires.]  —  A 
bill  of  exchange  payable  to  order  and  addressed 
to  the  B.  k  I.  Co.,  which  was  incorporated  under 
local  acts  and  had  no  power  to  accept  bills,  was 
accepted  by  the  defendants,  who  were  two  of 
the  directors  of  the  company,  and  also  by  the 
secretary,  as  follows  : — "  Accepted  for  and  on 
behalf  of  the  B.  k  I.  Co.,  G.  K.,  F.  S.  P., 
directors — B.  W.,  secretary."  The  bill  was  so 
accepted  and  given  by  the  defendants  to  the 
drawer,  the  engineer  of  the  company,  on  account 
of  the  company's  debt  to  him  for  professional 
services,  and  although  he  was  told  by  the  defen- 
dants that  they  gave  him  the  bill  on  the  under- 
standing that  he  should  not  negotiate  it,  but 
merely  as  a  recognition  of  the  company's  debt 
to  him,  as  the  company  had  no  power  to  accept 
bills,  yet  the  defendants  knew  that  he  would 
get  it  discounted,  and  they  meant  that  he  should 
have  the  power  of  doing  so.  The  bill  was  in- 
dorsed by  the  drawer  to  the  plaintiffs  for  value, 
and  without  notice  of  the  understanding  between 
him  and  the  defendants  : — Held,  that  the  defen- 
dants were  personally  liable,  as  by  their  accept- 
ance they  represented  that  they  had  authority 
to  accept  on  behalf  of  the  company,  which 
being  a  false  representation  of  a  matter  of  fact 
and  not  of  law,  gave  a  cause  of  action  to  the 
plaintiffs,  who  had  acted  upon  it.  West  London 
Commercial  Bank  v.  Kitson,  13  Q.  B.  D^360 ; 
53  L.  J.,  Q.  B.  345 ;  50  L.  T.  656  ;  32  W.  R. 
767— C.  A.  ^Affirming  47  J.  P.  824— D. 


IV.    CHEQUES. 

negotiability  —  Holders  for  Value.]  —  A 
banker's  draft  or  cheque  is  substantially  a  bill 
of  exchange,  attended  with  many,  though  not 
all  the  privileges  of  such  a  document ;  and  both 
in  England  and  Scotland  it  is  regarded  as  a 
negotiable  instrument ;  consequently  the  holder, 
to  whom  the  property  in  it  has  been  transferred 
for  value,  either  by  delivery  or  by  indorsation, 
is  entitled  to  sue  upon  it  if  upon  due  presenta- 
tion it  is  not  paid.  McLean  v.  Clydesdale 
Banking  Company,  9  App.  Cas.  95 ;  50  L.  T. 
457— H.  L.  (8c.) 

Per  Lord  Blackburn :  The  definition  given  in 
s.  3  of  the  Bills  of  Exchange  Act,  1882,  embraces 


219 


BILLS   OF    EXCHANGE,   CHEQUES,  ETC. 


220 


in  it  a  cheque,  and  that  act  is  declaratory  of  the 
prior  law.    lb. 

On  a  Saturday  A.  gave  a  cheque  on  his  account 
with  the  bank  of  S.  in  favour  of  B.  for  inter  alia 
250Z.,  croeBed  in  blank.  On  the  same  day  B. 
indorsed  the  cheque,  and  paid  it  into  the  bank 
of  C,  of  which  he  was  a  customer.  The  bank 
of  C.,  immediately  on  the  receipt  of  the  cheque 
carried  the  amount  to  B.'s  credit,  and  thus 
reduced  a  debit  balance  standing  against  him. 
On  the  Monday  following  A.  stopped  payment  of 
the  cheque  at  the  bank  of  S.,  consequently  when 
the  bank  of  C.  presented  it,  payment  was  refused. 
The  bank  of  C.  sued  A.  in  the  sheriffs  court  for 
the  amount.  On  appeal,  the  court  of  Bession 
found  that  the  cheque  was  given  to  B.  to  reduce 
the  balance  at  his  debit  with  the  bank  of  C. ; 
that  A.  agreed  the  cheque  should  be  so  used ; 
and  that  in  pursuance  of  that  agreement  the 
cheque  was  indorsed  to  the  bank  of  0.,  and  given 
to  them  as  cash,  and  the  contents  being  put  to 
B.'s  credit  the  balance  of  his  debit  was  thereby 
reduced  : — Held,  that  in  accordance  with  Mackay 
v.  Dick  (6  App.  Cas.  262),  this  house  was  limited 
to  the  finding  of  the  court  of  session  and  the 
record  ;  that  the  findings  in  fact  were  distinct, 
intelligible,  and  within  the  record;  that  it 
followed  from  them  as  a  matter  of  law  that  the 
bank  of  C.  were  onerous  holders  of  the  cheque, 
and  therefore  the  bank  of  S.,  not  having  paid  the 
cheque  on  demand,  the  court  below  was  right  in 
holding  that  A.  was  liable.  Currie  v.  Misa 
(10  L.  R.,  Ex.  158  ;  1  App.  Cas.  554)  commented 
on.  Be  la  Chaumette  v.  Bank  of  England 
(9  B.  &  C.  208)  explained.    lb. 


Crossed — Unauthorised  Signature  per  pro — 
liability  of  Collecting  Bankers.]— The  plaintiffs 
employed  a  traveller,  who  was  to  remit  all  cash, 
bills,  and  cheques  to  the  plaintiffs  every  week. 
The  traveller  afterwards  opened  an  account  at 
the  defendants'  bank,  and  paid  into  this  account, 
without  the  sanction  or  knowledge  of  the  plain- 
tiffs, seven  cheques  received  by  him  on  account 
of  the  plaintiffs  and  payable  to  the  plaintiffs  or 
order.  These  cheques  were  indorsed  by  the 
traveller  "per  pro  B.  &  Co.,  H.  &,"  without 
authority.  The  defendants,  without  inquiry  as 
to  the  traveller's  authority  to  indorse,  and  with 
knowledge  of  his  position,  received  the  cheques 
as  cash,  and  placed  them  at  once  to  the  traveller's 
credit.  Six  of  these  cheques  were  drawn  on 
other  bankers  than  the  defendants,  three  of 
these  being  crossed  "  and  Co."  when  received  by 
them,  and  three  being  uncrossed.  These  six 
cheques  were  crossed  by  the  defendants  with  the 
name  of  their  London  agents  for  collection. 
The  seventh  cheque  was  drawn  upon  the  defen- 
dants themselves,  and  was  not  crossed.  The 
traveller  afterwards  absconded  with  the  proceeds 
of  these  cheques : — Held,  in  an  action  by  the 
plaintiffs  to  recover  the  proceeds  of  these  seven 
cheques,  that  the  defendants  were  not  protected 
by  s.  82  of  the  Bills  of  Exchange  Act,  1882, 
because,  as  regards  the  six  cheques  not  drawn  on 
the  defendants,  they  had  not  received  payment 
"without  negligence."  Held,  also,  that  as 
regards  the  cheque  drawn  on  the  defendants 
themselves,  they  were  protected  by  16  &  17  Vict. 
c.  59,  s.  19,  because  they  had  paid  the  cheque 
within  the  meaning  of  that  section.  Bvtsell  v. 
Foe,  53  L.  T.  193— C.  A.  Varying  1  C.  &  B.  395 
— Denman,  J. 


V.  INDORSEMENT  AND  TRANSFER. 
Of  Cheques.] — See  supra. 

*  Indorsement— What  is.] — The  fact  that  one 
person  writes  hrS  name  on  the  back  of  a  bill  of 
exchange  and  hands  it  to  another,  does  not 
necessarily  constitute  the  former  an  indorser. 
Westaeott  v.  Smalley,  1  C.  &  E.  124— Wil- 
Hams,  J. 

Liability  of  Indorser— Action  by  Drawer.]— 
The  rule  that  a  drawer  of  a  bill  of  exchange 
cannot  sue  an  indorser,  only  applies  where  cir- 
cuity of  action  would  otherwise  arise.  Where 
the  contract  between  a  creditor,  debtor  and 
surety  is  embodied  in  a  bill  of  exchange,  in  an 
action  by  the  creditor  against  the  surety  on  the 
bill,  no  other  evidence  save  the  bill  is  required  to 
satisfy  the  Statute  of  Frauds  if  the  obligation 
revealed  on  the  face  of  the  bill  is  the  precise 
obligation  the  surety  has  agreed  to  undertake. 
Holmes  v.  Durkee,  1  C.  &  E.  23—  Williams,  J. 

By  Partner  to  Firm  as  Indorsees.]— No 

action  will  lie  by  a  firm  as  indorsees  of  a  bill  of 
exchange  against  their  indorsere  if  a  member 
of  the  plaintiffs'  firm  be  one  of  the  indorses. 
Foster  v.  War d,  1  C.  &  E.  168— Williams,  J. 

Contribution  inter  se.] — The  liabilities 

inter  se  of  successive  indorsere  of  a  bill  or  note 
must  in  the  absence  of  all  evidence  to  the  con* 
trary  be  determined  according  to  the  ordinary 
principles  of  the  law  merchant,  whereby  a  prior 
indorser  must  indemnify  a  subsequent  one.  But 
the  whole  circumstances  attendant  upon  the 
making,  issue  and  transference  of  a  bill  or  note 
may  be  legitimately  referred  to  for  the  purpose 
of  ascertaining  the  true  relation  to  each  other  of 
the  parties  who  put  their  signatures  upon  it 
either  as  makers  or  indorsere ;  and  reasonable 
inferences  derived  from  these  facts  and  dream- 
stances  are  admitted  to  the  effect  of  qualifying, 
altering,  or  even  inverting  the  relative  liabilities 
which  the  law  merchant  would  otherwise  assign 
to  them.  Maedonald  v.  Whitfield,  8  App.  Cas. 
733  ;  52  L.  J.,  P.  C.  70 ;  49  L.  T.  446  ;  32  W.  IL 
730— P.  C. 

Where  the  directors  of  a  company  mutually 
agree  with  each  other  to  become  sureties  to  the 
bank  for  the  same  debts  of  the  company,  and  in 
pursuance  of  that  agreement  successively  in- 
dorsed three  promissory  notes  of  the  company : 
— Held,  that  they  were  entitled  and  liable  to 
equal  contribution  inter  se,  and  were  not  liable 
to  indemnify  each  other  successively  according 
to  the  priority  of  their  indorsements.  Reynold* 
v.  Wheeler  (10  C.  B.,  N.  S.  561)  approved.  Steele 
v.  APKinlay  (5  App.  Cas.  754)  distinguished.  lb. 

Foreign  Indorsement  —  Acceptor  Disputing" 
Liability,] — Bills  of  exchange  were  drawn  in 
France  by  a  domiciled  Frenchman  in  the  French 
language,  in  English  form,  on  an  English  com- 
pany, who  duly  accepted  them.  The  drawer 
indorsed  the  bills  and  sent  them  to  an  English- 
man in  England : — Held,  that  the  acceptor 
could  not  dispute  the  negotiability  of  the  bills 
by  reason  of  the  indorsements  being  invalid  ac- 
cording to  French  law.  Marseille!  Extension 
Railway  and  Land  Company,  Smallpage  and 
Brandon,  In  re,  30  Ch.  D.  698  ;  55  L.  J.,  Ch.  116 
— Pearson,  J. 


821 


BILLS    OF   EXCHANGE,   CHEQUES,  ETC. 


222 


Tor  Collection— Righto  against  Acceptor.] — 
A  person  to  whom  a  bill  is  restrictively  indorsed 
for  collection,  who  has  paid  the  amount  of  such 
bill  to  the  indorser,  cannot,  by  reason  of  such 
payment,  acquire  rights  on  the  bill  against  the 
acceptor  where  the  amount  of  the  bill  has  been 
paid  to  the  indorser  before  maturity.  William* 
v.  Skadbolty  lC.kK  529— Cave,  J. 

VI.   ACCEPTANCE. 

la  Blank— Bight  to  nil  up  Drawer's  Name 
after  Death  of  Acceptor.] — A  bill  of  exchange 
accepted  for  valuable  consideration,  with  the 
drawer's  name  left  blank,  may  be  completed  by 
the  drawer's  name  being  added  after  the  death 
of  the  acceptor.  A  debtor  gave  his  creditor  a 
bill  of  exchange  accepted  by  himself,  but  with 
the  drawer's  name  left  blank.  The  plaintiff  at 
the  same  time,  as  a  surety,  deposited  with  the 
creditor  certificates  of  stock  in  a  joint  stock 
company  as  collateral  security  for  the  debt. 
The  debtor  died  without  the  creditor  having 
filled  in  the  name  of  the  drawer,  and  his  estate 
was  insolvent.  The  bill  was  never  presented  for 
payment,  nor  was  notice  given  to  the  plaintiff 
of  Its  non-payment : — Held,  that  the  creditor 
had  not  discharged  the  plaintiff  from  his  surety- 
ship by  his  omission  to  fill  up  the  drawer's 
name  and  to  give  notice  of  the  non-payment  of 
the  tell  to  the  plaintiff.  Carter  v.  White,  25 
Ch.  D.  666  ;  54  L.  J.,  Ch.  138  ;  50  L.  T.  670 ; 
32  W.  R.  692— C.  A. 


VII.    PRESENTMENT. 

Dispensing  with.] — The  drawer  of  a  bill,  after 
its  maturity,  wrote  a  letter  to  the  holder  in  the 
following  terms  :  "  I  accept  notice  of  non-pay- 
ment of  my  draft,  and  admit  my  liability  to  you 
therein  in  every  manner  as  though  the  same  had 
been  given  in  a  regular  way."  The  bill  in  ques- 
tion had  ootin  factheen  presented  for  payment, 
bat  of  this  the  drawer,  when  he  wrote  the  letter, 
was  ignorant : — Held,  that  there  had  been  no 
dispensation  by  the  drawer  of  the  consequences 
of  non-presentment  for  payment.  Keith  v. 
Bwrle,  1  C.  fc  B.  651— Pollock,  B. 

Delay.]— A  bill  was  drawn  by  B.  in  1872  on 
the  Bank  of  England.  She  had  no  account  with 
the  Bank  of  England ;  she  had  Government 
securities  on  which  large  dividends  were  due  ; 
the  bill  was  presented  for  payment  in  1880, 
after  her  death  : — Held,  that  the  delay  in  pre- 
sentment did  not  release  her  estate,  as  she  had 
no  reason  when  ahe  drew  the  bill  to  believe  that 
the  bill  would  be  paid  if  presented.  JBoyse,  In 
re,  OmfUm  v.  Crofton,  33  Ch.  D.  612  ;  56  L.  J., 
Ch.  135  ;  55  L.  T.  391 ;  35  W.  R.  247— North,  J. 


VIII.    PAYMENT— EFFECT  OF,  AS 
PAYMENT. 

Payment-— Accommodation  Bill.] — The  rule 
that  payment  by  the  drawer  of  a  bill  of  exchange 
to  the  holder  does  not  discharge  the  holder's 
daim  against  the  acceptor,  does  not  apply  where 
the  bill  has  been  accepted  for  the  accommoda- 
tion of  the  drawer.  Solomon  v.  Davit,  1  C.  & 
E.  83-8tephen,  J. 


Effect  of,  as  Payment — Conditional  Pay- 
ment of  Debt.] — Within  seven  days  after  the 
service  of  a  bankruptcy  notice  the  debtor  gave 
to  the  creditor  a  promissory  note,  payable  two 
months  after  date,  for  the  amount  of  the  debt, 
which  note  the  creditor  accepted  : — Held,  that 
the  note  being  a  conditional  payment  of  the  debt, 
the  creditor  could  not,  during  the  currency  of 
the  note,  avail  himself  of  the  bankruptcy  notice 
to  obtain  a  receiving  order  against  the  debtor. 
Matthew,  Ex  parte,  Matthew,  In  re,  12  Q.  B.  D. 
506  ;  51  L.  T.  179  ;  32  W.  R.  813  ;  1  M.  B.  R.47 
— C.  A. 


Duty  to  stop  Cheque.] — Where  a  debtor 


draws  a  cheque  in  payment  of  a  debt,  which 
cheque  is  duly  honoured  and  paid,  there  is  no 
debt  owing  or  accruing  from  debtor  to  creditor 
between  the  giving  of  the  cheque  and  payment 
thereof.  There  is  no  duty  upon  the  debtor  who 
is  served  with  a  garnishee  order  nisi  between 
such  dates  to  stop  payment  of  the  cheque.  El- 
well  v.  Jaekson,  1  C.  &  E.  362 — Denman,  J. 

Of  part    of    Acoount — Cheque   to    Balanoe 
Aooonnt— Cheque  retained   "on  Account."] — 

A.  sent  B.  a  "  cheque  to  balance  account  as  per 
enclosed  statement."  The  enclosed  statement 
debited  B.  with  a  sum  claimed  on  account  of 
defects  in  work  done.  B.  replied,  acknowledging 
the  receipt  of  the  cheque  "on  account."  and 
shortly  afterwards  sent  A.  a  statement  of  ac- 
count, omitting  the  sum  claimed  by  A.  for 
defective  work,  and  debiting  A.  with  a  small 
sum  for  discount  not  allowed  in  his  account, 
and,  in  the  accompanying  memorandum,  said  : 
"  We  would  thank  you  for  a  remittance  of  the 
balance,  or  we  shall  be  obliged  to  take  proceed- 
ings to  recover  same."  A.  replied,  sending  a 
cheque  for  the  discount  claimed.  B.  kept  and 
cashed  the  cheques.  In  an  action  for  the  balance, 

B.  was  nonsuited  on  the  ground  that  having 
taken  and  cashed  the  first  cheque,  he  was  bound 
to  apply  it  according  to  A.*s  Intention  : — Held, 
that  the  nonsuit  was  wrong.  Achroyd  v. 
Smithies,  54  L.  T.  130  ;  50  J.  P.  358— D. 


IX.     ACTIONS  ON. 
1.  Statute  of  Limitations. 

When  Time  begins  to  run.] — B.  in  March, 
1878,  gave  P.  a  cheque  for  100/.,  which  was  ac- 
cepted by  P.  in  discharge  of  a  larger  sum ;  in 
1885,  P.  made  a  claim  against  B.'s  estate  in  respect 
of  this  cheque.  B.  had  not  at  the  time  of 
drawing  the  cheque  sufficient  moneys  at  his  bank 
to  meet  it,  and  was  negotiating  a  loan,  which  he 
expected  shortly  to  complete,  out  of  which  the 
cheque  would  be  paid.  The  loan  was  not  com- 
pleted. P.  was  informed  of  that  fact.  The 
cheque  remained  undated,  and  was  never  pre- 
sented for  payment : — Held,  that  the  Statute  of 
Limitations  barred  the  claim,  as  the  six  years 
began  to  run  when  the  letter  was  received  stating 
that  the  loan  would  not  be  completed,  and  had 
long  since  elapsed.  Bcthell,  In  re,  Bethell  v. 
Bethell,  34  Ch.  D.  561 ;  56  L.  J.,  Ch.  334 ;  56 
L.  T.  92  ;  35  W.  R.  330— Stirling,  J. 

In  1872,  B.  drew  a  bill  of  exchange  at  sight  to 
her  own  order  ;  she  lived  from  that  time  to  her 
death  in  1878  at  Marseilles  with  G.,  as  his  wife ; 


228 


BILLS    OF    SALE. 


224 


she  indorsed  the  bill  to  G.  In  1876,  G.  indorsed 
it  to  C.  The  bill  was  presented  for  payment  in 
1880  : — Held,  that  time  did  not  begin  to  run  for 
the  purpose  of  barring  the  right  of  action  on  the 
bill  till  presentation.  Boyse,  In  re,  Crofton  v. 
Orofton,  33  Ch.  D.  612  ;  56  L.  J.,  Ch.  135 ;  55 
L.  T.  391  ;  35  W.  R.  247-  North,  J. 


2.  Damages. 

Bill  drawn  Abroad  on  Acceptor  in  England 
— Bankruptcy  of  Acceptor— Proof  by  Drawer  for 
He-exchange.] — Notwithstanding  the  provisions 
of  s.  57  of  the  Bills  of  Exchange  Act,  1882,  the 
drawer  of  a  foreign  bill  of  exchange  upon  an 
acceptor  in  England  is  entitled,  upon  the  bill 
being  dishonoured  and  protested,  to  recover 
from  the  acceptor  damages  in  the  nature  of 
re-exchange,  wnich  the  drawer  is  by  the  foreign 
law  liable  to  pay  to  the  holder  of  the  bill.  And, 
under  s.  37  of  the  Bankruptcy  Act,  1883,  the 
drawer,  though  he  has  not  paid  these  damages, 
can  prove  in  the  bankruptcy  of  the  acceptor 
in  respect  of  his  contingent  liability  to  pay 
them.  Robarts,  Ex  varte,  Gillespie,  In  re, 
18  Q.  B.  D.  286  ;  56  L.  J.,  Q.  B.  74  ;  56  L.  T.  599 ; 
86  W.  R.  128— C.  A. 

Dishonour  for  non-acoeptanoe — Bights 

of  Holder — Bate  of  Interest.]— The  A.  Bank  in 
1886  drew  two  bills  in  Adelaide  upon  their 
London  branch  for  15,000Z.  and  20,0002.  at  sixty 
days  after  sight  in  favour  of  the  B.  Bank  at 
Sydney.  The  bills  were  presented  on  the  1st 
and  23rd  March,  but  acceptance  was  refused. 
An  order  for  the  compulsory  winding-up  of  the 

A.  Bank  was  made  in  the  colony  of  South  Aus- 
tralia on  12th  April,  1886,  and  a  similar  order 
was  made  in  England  on  the  8th  June.  The  B. 
Bank  brought  in  a  claim  in  the  English  winding- 
up  for  the  amount  of  the  bills,  expenses  of 
protest,  and  interest  at  10  per  cent.  The  amount 
of  the  bills  and  expenses  of  protest  and  interest 
at  5  per  cent,  was  paid  without  prejudice  to  the 

B.  Bank's  claim  for  further  interest.  This  was 
a  new  claim  by  the  B.  Bank  for  5  per  cent, 
additional  interest,  to  make  up  the  original  10 
per  cent.  It  was  admitted  that  the  assets  of  the 
A.  Bank  would  be  sufficient  to  pay  all  claims  in 
full,  and  that  bills  dishonoured  in  South  Aus- 
tralia had  been  paid  in  the  Australian  winding- 
up  with  interest  at  10  per  cent.  The  law  of 
South  Australia  as  to  bills  of  exchange  is  codified 
by  a  statute  which  is  in  precisely  the  same  words 
as  the  Bills  of  Exchange  Act,  1882,  except  that 
the  rate  of  interest  allowed  for  a  dishonoured  bill 
in  which  no  special  rate  is  mentioned  is  10  per 
cent,  instead  of  5  : — Held,  that  the  bills  having 
been  purchased  in  Adelaide,  the  rights  of  the  B. 
Bank  were  governed  by  s.  57  of  the  Act  No.  112 
of  1884  of  South  Australia,  which  is  the  same  as 
8.  57,  sub-s.  2,  of  the  English  Act,  and  provides 
for  the  case  of  bills  dishonoured  abroad :  that 
Robarts,  Ex  parte  (18  Q.  B.  D.  286),  is  an 
authority  that  the  holder  of  a  bill  dishonoured 
abroad  is  only  entitled  to  re-exchange  as  provided 
by  8.  57,  sub4.  2,  and  not  to  interest  provided  by 
8.  57,  sub-s.  1 :  that  the  B.  Bank  was  therefore  not 
entitled  to  interest,  and  that  it  was  impossible  to 
treat  the  interest  at  10  per  cent,  claimed  by  them 
as  a  fixed  sum  due  by  the  custom  of  Australia 
instead  of  re-exchange.  Commercial  Banking  Co. 
of  Sydney ,  Ex  parte,  Commercial  Bank  of  South 


Australia,  In  re,  36  Ch.  D.  522  ;  67  L.  J.,  Ch. 
131 ;  57  L.  T.  395  ;  36  W.  R.  550— North,  J. 


BILLS  OF   SALE. 

I.  Registration. 

1.  What  Documents  require  Registra- 

tion, 224. 

2.  Rectification  and  Renewal  of  Be- 

gist  ration,  232. 

3.  Local  Registration,  234. 

4.  Description  of  Grantor  and  Wit- 

nesses, 234. 

5.  Other  Points,  236. 

II.  Statutory  Fobm. 

1.  General  Principles,  236. 

2.  Time  of  Payment,  238. 

3.  Property  comprised  in,  240. 

4.  The  Sum  secured,  242. 

6.  Power  of  Seizure,  245. 

6.  Power  of  Sale,  247. 

7.  Maintenance  of  the  Security,  249. 

8.  Defeasance  of  the  Security,  253. 

III.  Statement  of  Consideration,  255. 

IV.  Other  Matters  relating  to. 


I.  REGISTRATION. 

1.  WHAT  DOCUMENTS  REQUIRE 
REGISTRATION. 

Af  ligament  of  Ship  or  Vessel — Dumb  Barge.] 
— A  dumb  barge,  propelled  by  oars,  plying  on 
the  River  Thames  and  carrying  goods,  wares, 
and  merchandise  (without  passengers)  is  a  vessel 
within  the  exception  of  the  Bills  of  Sale  Acts, 
1878  and  1882,  which  excepts  from  registration 
as  a  bill  of  sale  transfers  or  assignments  of  a 
ship  or  vessel  or  any  share  thereof.  Gapp  v. 
Bond,  19  Q.  B.  D.  200  ;  56  L.  J.,  Q.  B.  438 ;  67 
L.  T.  437 ;  36  W.  R.  683— C.  A. 

Apparent  possession.]— Sect  8  of  the  Bills  of 
Sale  Act,  1878,  is  still  in  force  as  regards  ab- 
solute bills  of  sale.  "  Apparent  possession  "  in 
that  section  means,  "  apparently  in  the  possession 
of,"  as  distinguished  from  "  actually  in  the  pos- 
session of,"  and  goods  may  at  the  same  time  be 
in  the  true  and  actual  possession  of  one  person 
and  in  the  apparent  possession  of  another. 
Robinson  v.  Tucker,  1  C.  &  E.  173— Williams,  J. 
Affirmed  in  C.  A. 

The  plaintiff  having  purchased  from  an  execu- 
tion debtor  his  business  and  stock-in-trade,  re- 
tained the  vendor  in  his  service  as  salesman  at 
weekly  wages,  but  sent  notice  of  the  change  of 
ownership  to  the  defendant,  the  execution  cre- 
ditor, as  well  as  to  the  vendor's  customers,  ad- 
vertised it  three  times  in  the  newspapers,  and 
changed  the  name  over  the  door  of  the  shop. 
The  deed  of  assignment  by  the  vendor  to  the 
plaintiff  of  the  business,  &c.,  was  not  registered 
as  a  bill  of  sale : — Held,  that  the  goods  were  not 
in  the  "  apparent  possession  "  of  the  vendor 
within  the  meaning  of  the  Bills  of  Sale  Act, 
1878,  and  that,  therefore,  the  deed  of  assignment 


225 


BILLS    OF    SALE— Registration. 


226 


<fid  not  require  registration.  Gibbons  v.  Hickson, 
55  L  J„  Q.  B.  119 ;  53  L.  T.  910 ;  34  W.  R. 

HO-D. 

Declaration  of  Trust—"  Goods  at  Sea."J— T. 
on  obtaining  an  advance  from  his  bankers  signed 
aa  hypothecation  note  by  which  he  undertook 
to  hold  certain  goods,  which  had  been  shipped 
to  him,  in  trust  for  the  bankers,  and  to  hand 
over  the  proceeds  when  he  received  the  amount 
of  the  advance : — Held,  that  this  note  was 
a  bill  of  sale  within  the  definition  of  the  Acts 
of  1878  and  1882,  as  being  a  declaration  of 
trait  without  transfer  and  liable  to  the  registra- 
tion provisions,  but  that,  the  goods  not  having 
arrived  at  the  date  of  the  execution,  it  came 
within  the  exception  as  to  "  goods  at  sea  "  con- 
tained in  the  same  definition,  and  so  was  not 
affected  by  these  provisions.  Reg.  v.  Totonshend, 
15  Cox,  C.  C.  466— Day,  J. 

"Assigasunt  for  Benefit  of  Creditors"  — 
Isrtgagt  of  Leasehold  and  Fixtures.] — A  mort- 
gage of  leasehold  property,  and  by  a  separate  opera- 
tive part  of  all  and  all  manner  of  mill  gear,  mill- 
wright work,  plant  of  wheelwright's  shop,  fixed 
and  moveable  machinery  and  plant  then  being,  or 
which  at  any  time  thereafter  during  the  sub- 
BBtence  of  the  security  should  be  thereon,  is, 
nnlesj  registered,  null  and  void  under  section  1 
cf  the  Bills  of  Sale  Act,  1854,  as  against  a 
trustee  to  whom  the  mortgagor  has  assigned  all 
hi*  estate  and  effects  for  the  benefit  of  all  such 
of  bis  creditors  as  should  elect  to  execute  the 
suae,  such  an  assignment  being  "  an  assignment 
for  the  benefit  of  the  creditors  of  such  person  " 
within  the  meaning  of  the  section.  Paine  v. 
Mstthevs,  53  L.  T.  872— D. 

Bsildims;  Agreement—Clause  wetting  Ma- 
terials in  Landowner.] — An  agreement  by  a 
dsose  in  an  ordinary  building  contract  that  all 
building  and  other  materials  brought  by  the 
builder  upon  the  land  shall  become  the  property 
of  the  landowner,  is  not  a  bill  of  sale  within  the 
Mb)  of  Sale  Act,  1878  (41  &  42  Vict.  c.  31). 
Brm  t.  Bateman  (2  L.  R.,  C.  P.  272),  and 
Blake  v.  Izard  (16  W.  R.  108),  followed.  Reeve 
r.  mtimore  (4  De  G.f  J.&S.  1),  and  Holroyd  v. 
MankallQO  H.  L.  C.  191), distinguished.  Reeves 
v.  Barlow,  12  Q.  B.  D.  436  ;  53  L.  J.,  Q.  B.  192  ; 
50  L.  T.  782  ;  32  W.  K.  672-C.  A. 


to  take  possession  of  Chattels  as 
fauity  for  Debt.] — A  document  giving  a 
license  to  take  immediate  possession  of  goods 
si  a  security  for  a  debt  is  a  bill  of  sale  within 
i  4  of  the  Bills  of  Bale  Act,  1878,  and  is,  there- 
fore, alio  a  bill  of  sale  within  the  Bills  of  Sale 
Act,  1882.  And  although  it  is,  from  its  nature, 
unponrible  that  it  should  be  made  in  the  form 
oven  in  the  schedule  to  the  Act  of  1882,  such  a 
wane  is  void  under  s.  9  of  that  Act  as  sub- 
stantially deviating  from  the  prescribed  form, 
ftentiodecidcndi  of  Close,  Ex  parte  (14  Q.  B.  D. 
306)  and  Cunningham  and  Co.,  In  re  (28  Gh.  D. 
®2)  disapproved.  Cla rk,  Ex  parte,  or  Parsons, 
B*  parte,  Totcnsend,  In  re.  16  Q.  B.  D.  532  ;  55 
LX^Q.  B.  137  ;  53  L.  T.  897  j  34  W.  B.  329  ; 
3  H.  B.  R.  36— C.  A. 

A.  document  which  gives  a  license  to  take 
nnafrjiate  possession  of  goods  as  a  security  for 
*  debt  is  a  bill  of  sale  within  the  acts,  although 
it  cannot  be  framed  according  to  the  scheduled 


form ;  and  it  is  void  as  not  being  in  the  pre- 
scribed form.  Hilton  v.  Tucker,  39  Ch.  D.  669  ; 
57  L.  J.,  Ch.  973  ;  59  L.  T.  172 ;  36  W.  R.  762— 
Kekewich,  J. 

Pledge  of  Goods  bought  on  Credit.]— Whatever 
documents  are  included  in  the  expression  "  bill 
of  sale  "  as  defined  by  the  Bills  of  Sale  Acts, 
they  must  still,  by  force  of  s.  3  of  the  Bills  of 
Sale  Act,  1878,  be  limited  to  documents  "  whereby 
the  holder  or  grantee  has  power  to  seise  or  take 
possession  of  any  personal  chattels  comprised  in 
o*  made  subject  to  such  "  document  The  acts 
therefore  do  not  include  letters  of  hypothecation 
accompanying  a  deposit  of  goods  or  pawn  tickets 
given  by  a  pawnbroker  or  in  fact  any  case  where 
the  object  and  effect  of  the  transaction  are  im- 
mediately to  transfer  the  possession  of  the  chattels 
from  the  grantor  to  the  grantee. — A  trader,  whose 
banking  account  was  largely  overdrawn,  and 
who  required  a  further  advance  of  500/.,  depo- 
sited with  his  bank  the  invoice  of  goods  bought 
by  him  on  credit  and  consigned  to  him  by  rail, 
and  gave  the  bank  a  delivery  order  directed  to 
the  railway  company  requiring  the  company  to 
hold  the  goods  to  the  order  of  the  bank.  The 
invoice  showed  that  the  goods  were  bought  on 
credit.  On  arrival  of  the  goods  the  company 
sent  the  usual  advice  note  to  the  bank  stating 
that  they  held  the  goods  to  the  order  of  the  bank. 
The  500/.  was  then  advanced,  and  a  minute  of 
the  transaction,  stating  the  rate  of  interest  on 
the  advance,  the  terms  on  which  the  goods  were 
to  be  redeemed,  &c,  was  entered  in  the  bank 
ledger  and  was  signed  by  the  trader  and  stamped. 
Eleven  months  afterwards  the  trader  became 
bankrupt : — Held,  that  as  the  effect  of  the  trans- 
action was  immediately  to  transfer  the  possession 
of  the  goods  to  the  bank,  the  delivery  order  and 
minute  did  not  require  registration  as  a  bill  of 
sale,  and  that  the  title  of  the  bank  was  good  as 
against  the  trustee  in  bankruptcy.  Close,  Ex 
parte,  Hall,  In  re,  infra. 

Document  accompanying  Pledge — Power  of 

Sale.] — A  document  signed  by  the  borrower  of 
money  at  the  time  of  depositing  goods  as  security 
for  the  loan  with  the  lender,  and  containing  the 
terms  of  repayment  and  a  power  of  sale,  is  not  a 
bill  of  sale  within  the  meaning  of  the  Bills  of 
Sale  Act,  1882.  Hubbard,  Ex  parte,  Harduneh, 
In  re,  17  Q.  B.  D.  690 ;  55  L.  J.,  Q.  B.  490 ;  59 
L.  T.  172,  n. ;  35  W.  R.  2 ;  3  M.  B.  R.  246— 
0.  A. 

Where  goods  are  pledged  and  delivered  to  the 
pledgee,  a  document  explaining  the  transaction 
and  stating  what  are  the  lights  of  the  pledgee  is 
not  a  bill  of  sale  within  the  acts.  Hilton  v. 
Tucker,  supra. 

Transfer  in  Course  of  Business.] — Semble,  a 
pledge  by  a  trader  of  stock-in-trade  which  he  has 
bought  on  credit,  and  not  paid  for,  is  not  a 
"  transfer  in  the  ordinary  course  of  business  of 
his  trade  or  calling,"  within  the  exception  con- 
tained in  s.  4  of  the  Bills  of  Sale  Act,  1878. 
Close,  Ex  parte,  Hall,  In  re,  14  Q.  B.  D.  386  ; 
54  L.  J.,  Q.  B.  43  ;  51  L.  T.  795  ;  33  W.  R.  228— 
Cave,  J. 

Where  Grantor  a  Joint  Stock  Company.]— Bills 
of  sale  given  by  joint  stock  companies  are  within 
the  Bills  of  Sale  Act,  1882.  Cunningham  &  Co., 
In  re,  AttenborougKs  Case,  28  Ch.  D.  682 ;  54 


227 


BILLS    OF    SALE— Registration. 


m 


L.  J.,  Ch.  448 ;  62  L.  T.  214 ;  33  W.  R.  387— 
Pearson,  J. 

Dock  Warrant— Possession  given  to  Grantee.] 

— Where  a  security  on  goods  with  possession  is 
given,  the  security  is  valid  without  registration. 
A  wharfinger's  warrant  was  indorsed  over  to  a 
lender  with  an  accompanying  memorandum  of 
terms  of  security  including  a  power  of  sale  : — 
Held,  that  there  was  a  good  security  which  did 
not  require  registration.    lb. 

"  Trade  Machinery  "— «« Fixed  Motive  Powers 
and  fixed  Power  Machinery."] — The  effect  of  s. 
6  of  the  Bills  of  Sale  Act,  1878,  is  to  prevent  the 
articles  which  by  it  are  excluded  from  the  defini- 
tion of  "  trade  machinery  "  from  being  "  personal 
•chattels "  for  any  of  the  purposes  of  the  Act. 
Consequently,  an  assignment  of  certain  "  fixed 
motive  powers  and  fixed  power  machinery  "  does 
not  require  registration,  although  such  machinery 
is  fixed  to  the  surface  only  and  separated  by 
intervening  strata  from  the  minerals  charged. 
Topham  v.  Greenside  Glazed  Fire  Brick  Com- 
pany, 37  Ch.  D.  281  ;  57  L.  J.,  Ch.  683  ;  58  L.  T. 
274  ;  36  W.  R.  464— North,  J. 

Mortgage  of  Land  not  mentioning  Fixtures — 
Tower  of  Sale.] — The  owner  of  land  and  build- 
ings which  he  used  for  the  purposes  of  his  busi- 
ness, and  in  which  there  was  fixed  machinery 
belonging  to  him,  being  "  trade  machinery " 
within  the  meaning  of  the  Bills  of  Sale  Act, 
1878,  mortgaged  them  in  fee  without  any  general 
.words  or  any  reference  to  fixtures  or  machinery. 
By  the  mortgage  deed  it  was  agreed  that  the 
powers  in  s.  19  of  the  Conveyancing  and  Law  of 
Property  Act,  1881,  should  be  exercisable  with- 
out such  notice  as  required  by  the  act.  After 
the  death  of  the  mortgagor,  his  creditors  insisted 
that  this  mortgage  was  void  as  to  the  trade 
machinery  under  the  Bills  of  Sale  Acts,  1878 
and  1882  : — Held,  that  the  mortgage  was  not  an 
assignment  of  the  trade  machinery,  since  the 
trade  machinery  only  passed  by  virtue  of  being 
affixed  to  the  freehold,  and  that  the  deed  did 
not,  apart  from  the  power  of  sale,  give  a  power 
to  seize  or  to  take  possession  of  the  trade 
machinery  as  chattels,  since  the  mortgagee 
could  only  take  possession  of  them  by  taking 
possession  of  the  freehold  :  that  the  power  of 
sale  did  not  authorize  the  mortgagee  to  sell  tye 
trade  machinery  apart  from  the  freehold :  and, 
therefore,  that  the  instrument  was  not  a  bill  of 
sale  within  the  meaning  of  the  acts,  and  gave  a 
valid  security  on  the  trade  machinery.  Yates, 
In  re,  Bate  held  or  or  Batehelor  v.  Yates,  38  Ch. 
D.  112  ;  57  L.  J.,  Ch.  697  ;  59  L.  T.  47  ;  36  W.  B. 
563— C.  A. 

Part  of  Machinery.] — By  an  unregistered  deed 
made  in  1875,  the  owners  of  a  mill  mortgaged 
in  fee  to  the  plaintiffs  the  mill,  together  with  all 
the  engines,  plant,  machinery,  and  gear  de- 
scribed in  the  schedule.  The  schedule  included 
certain  driving  belts  which  connected  the  power 
machinery  with  certain  machines  which  were 
so  affixed  as  to  be  part  of  the  realty.  The 
machines  could  not  be  worked  without  the  belts, 
which  would  only  fit  other  machines  of  nearly 
the  same  size.  These  belts  were  passed  round 
the  shafting  and  then  laced  together,  and  could 
not  be  removed  from  the  shafting  without  being 
unlaced.  They  could  be  slipped  off  the  machines 


when  the  machines  and  shafting  were  not  in 
motion.  The  mortgage  contained  no  power  to 
the  mortgagee  to  deal  with  the  belts  separately 
from  the  freehold.  The  defendant,  a  trustee  in 
bankruptcy  of  one  of  the  mortgagors,  removed 
the  belts.  In  an  action  against  him  by  the 
plaintiffs  to  recover  the  value : — Held,  that  the 
belts  being  essential  parts  of  the  fixed  machines, 
formed  part  of  the  realty,  and  as  such  passed 
under  the  mortgage  deed,  which,  therefore,  did 
not  require  registration  under  the  Bills  of  Sale 
Act,  1854.  Longbottom  v.  Berry  (5  L.  R.,  Q.  B. 
123)  followed.  Sheffield  and  South  Yorkshire 
Permanent  Budding  Society  v.  Harrison  64 
L.  J.,  Q.  B.  15  ;  51  L.  T.  649  ;  33  W.  R.  144- 

C.  A. 

Growing  Crops.}— By  s.  6  of  the  Bills  of  Sale 
Act,  1882,  a  bill  of  sale  is  valid  as  to  growing 
crops  separately  assigned  :  —  Held,  that  this 
means  separately  from  the  land,  and  that  a  bill 
of  sale  which  assigns  growing  crops  together 
with  other  articles  is  valid.  Roberts  v.  Roberts, 
13  Q.  B.  D.  794  ;  58  L.  J.,  Q.  B.  313  ;  50L.T. 
351 ;  32  W.  R.  605— C.  A. 

Attornment  Clause— Mortgage.] — By  8.  6  of 
the  Bills  of  Sale  Act,  1878,  "  Every  attornment, 
instrument,  or  agreement,  not  being  a  mining 
lease,  whereby  a  power  of  distress  is  given,  or 
agreed  to  be  given,  by  any  person  to  any  other 
person  by  way  of  security  for  any  .  .  .  debt 
or  advance,  and  whereby  any  rent  is  reserved  or 
made  payable  as  a  mode  of  providing  for  the 
payment  of  interest  on  such  debt  or  advance,  or 
otherwise  for  the  purpose  of  such  security  only, 
shall  be  deemed  to  be  a  bill  of  sale  within  the 
meaning  of  this  act,  of  any  personal  chattels 
which  may  be  seized  under  such  power  of  dis- 
tress ;  provided,  that  nothing  in  this  section 
shall  extend  to  any  mortgage  of  any  estate  or 
interest  in  any  land,  tenement,  or  hereditament, 
which  the  mortgagee,  being  in  possession, 
shall  have  demised  to  the  mortgagor  as  his 
tenant  at  a  fair  and  reasonable  rent " : — Held, 
that  an  attornment  clause  in  a  mortgage  of  land, 
whereby,  by  reason  of  the  relation  of  landlord 
and  tenant  thereby  created,  a  power  of  distress 
is  given  to  the  mortgagee  as  security  for  the  pay- 
ment of  interest  in  arrear,  is  a  bill  of  sale  within 
s.  6,  and  that  the  proviso  applies  only  to  cases 
in  which  the  mortgagee,  having  previously  taken 
possession  of  the  mortgaged  premises,  has  de- 
mised them  to  the  mortgagor,  and  not  to  a  case 
where  the  demise  is  created  by  the  mortgage 
deed  itself.    Dicta  in  Hall  v.  Comfort  (18  Q.  & 

D.  11)  disapproved.  Kennedy,  Ex  parte,  WiUis, 
In  re,  21  Q.  B.  D.  884 ;  57  L.  J.t  Q.  B.  634 ;  59 
L.  T.  749  ;  36  W.  R.  793  ;  5H.B.R.  189— C.  A. 

An  attornment  clause  in  a  mortgage  made  by 
way  of  demise  is  not  rendered  void  by  the  Bills 
of  Sale  Acts,  1878  and  1882.  Hall  v.  Comfort, 
18  Q.  B.  D.  11  ;  56  L.  J.,  Q.  B.  185  ;  55  L.T. 
550  ;  85  W.  R.  48— D. 

Publio-house  —  Power  to  Distrain  to 


Moneys  dne  for  Goods  supplied.] — An  agree- 
ment for  the  letting  of  a  public-house,  whereby 
the  tenant  agreed  not  to  take  or  sell  any  malt 
liquors  or  mineral  waters  other  than  such  as 
should  be  purchased  of  the  landlord,  contained  a 
proviso  that  if  during  the  tenancy  any  sum  or 
sums  of  money  should  be  due  from  the  tenant  to 
the  landlords  in  respect  of  any  malt  liquors  or 


229 


BILLS    OF    SALE— Registration. 


280 


mineral  waters  supplied  by  them  to  him,  and 
such  sum  or  sums  should  remain  unpaid  for  the 
space  of  twenty-foar  hours  after  a  demand  in 
writing  for  payment  thereof  had  been  left  upon 
the  premises,  it  should  be  lawful  for  the  land- 
lords to  enter  and  distrain  upon  the  premises 
ia  respect  of  the  amount  due,  &c  : — Held,  that 
the  agreement  required  registration  as  a  bill  of 
sale,  Pulbrook  v.  Ashby,  66  L.  J.,  Q.  B.  376  ; 
35  W.  B.  779— Denman.  J. 

"Assurance   of    personal    Chattels "  —  Sole 
of  Goods — Entry   in    Auctioneer's    Book.]  — 

Where  a  contract  for  sale  of  goods  within  s.  17, 
of  the  Statote  of  Frauds  is  valid  solely  by  virtue 
of  a  memorandum  in  writing,  such  memorandum 
is  an  assurance  of  personal  chattels  within  the 
Bills  of  Sale  Act,  1878.  Roberts \  In  re,  Evans 
t.  Roberts,  36  Ch-  D.  196  ;  56  L.  J.,  Ch.  952  ; 
57  L.  T.  79  ;  35  W.  R.  684  ;  61  J.  P.  757— 
Kay,  J. 

At  a  sale  of  farm  produce  by  auction,  W.  bought 
a  stack  of  hay  for  40Z.  5*.  The  auctioneer's 
clerk  signed  the  name  of  W.  as  purchaser  in 
the  auctioneer's  book,  which  was  also  signed 
by  the  auctioneer,  and  contained  a  copy  of  the 
conditions  of  sale,  and  specified  the  lot  and  the 
price.  No  part  of  the  purchase-money  was  paid, 
one  of  the  conditions  being  that  the  purchaser 
was  to  have  six  months'  credit,  and  the  whole  of 
the  hay  remained  on  the  premises  of  the  vendor 
and  in  his  apparent  possession.  The  entry  in 
the  auctioneer's  book,  was  not  registered  as  a  bill 
of  sale  under  the  Bills  of  Sale  Act,  1878.  The 
hay  was  seized  in  execution  under  a  judgment 
obtained  by  creditors  of  the  vendor  : — Held,  that 
as  the  sale  would  have  been  void  under  8.  17  of 
the  Statute  of  Frauds  but  for  the  memorandum 
of  the  contract  contained  in  the  auctioneer's 
book,  such  memorandum  was  an  assurance  and 
a  bill  of  sale  under  the  Bills  of  Sale  Act,  1878, 
and  therefore  void  as  against  the  execution 
creditors  for  want  of  registration,    lb. 

Lien  or  Charge  for   Purchase-money.  ]  —  A 
testator,  who  died  in  1867,  bequeathed  all  his 
property  to  his  wife  and  two  other  persons  upon 
certain  trusts,  and  appointed  them  his  executors, 
and  empowered  them  to  carry  on  his  business  of 
a  wine  merchant,  with  a  direction  that,  on  bis 
youngest   son    attaining  twenty-one.  his   sons 
should  successively  have  the  option  of  purchasing 
the  business  npon  certain  terms.    The  widow 
alone  proved  the  will,  and  carried  on  the  busi- 
ness until  1873,  when  a  suit  was  instituted  to 
administer  the  estate,  and  the  business  was  con- 
tinued under  the  direction  of  the  court.    In 
December,  1880,  the  widow  died,  having  by  her 
will  appointed  J.  (a  son  of  the  testator)  and  one 
€.  her  executors,  who  were  then  made  defendants 
to  the  administration  action.    In  March.  1880, 
the  youngest  son  attained  twenty-one,  and  shortly 
afterwards  J.  (the  other  sons  not  desiring  to 
purchase)  offered  to  purchase  the  business  as 
nom  the  30th  of  November,  1880,  for  10,329?.  18*. 
The  offer  was  accepted  and  sanctioned  by  the 
court,  and  the  arrangemeut  was  embodied  in  an 
agreement   dated    the   15th    September,  1882, 
which  provided  for  the  payment  of  the  purchase- 
money  with  interest  at  a  future  time,  and  con- 
tained a  declaration  t  hat  J.  and  C,  or  other  the 
trostees  of  the  will  of  the  testator,  should  have  a 
hen  or  charge  upon  the  business  and  effects 
agreed  to  be  sold  for  the  purchase-money  and 


interest,  and  that  if  default  should  be  made  in 
payment  of  the  purchase-money  and  interest  at 
the  time  appointed,  or  if  J.  should  become  bank- 
rupt, then  the  same  might  be  recovered  by  the 
said  trustees  by  action  at  law.  From  the  date 
of  this  agreement  J.  carried  on  the  business  as 
his  own  until  October,  1885,  when  he  was  adju- 
dicated a  bankrupt.  At  this  time  the  purchase- 
money  was  unpaid,  and  there  still  remained  in 
specie  certain  wines  and  office  furniture,  which 
formed  part  of  the  testator's  estate,  and  which 
were  sold  by  arrangement  with  the  trustee  in 
bankruptcy  for  632/.  18*.  C.  claimed  this  sum 
as  representing  trust  chattels  which  he  was  en- 
titled to  follow  : — Held,  that  under  the  agree- 
ment the  property  in  the  chattels  passed  to  J. ; 
that  the  clause  in  the  agreement  conferring  a 
lien  or  charge  for  the  purchase-money  operated 
as  a  bill  of  sale  within  sects.  4,  8,  of  the  Bills  of 
Sale  Act,  1878,  and.  not  having  been  registered, 
was  void  as  against  J.'s  trustee  in  bankruptcy ; 
and  therefore  that  C.  was  not  entitled  to  the 
money.  Coburn  v.  Collins,  35  Ch.  D.  373 ;  56 
L.  J.,  Ch.  504  ;  56  L.  T.  431 ;  35  W.  R.  610— 
Kekewich,  J. 

11  Receipt  for  Purchase -meney."] — Where  a 
receipt  was  given  for  80*.  as  the  purchase-money 
of  60,000  bricks,  which  remained  in  the  posses* 
sion  of  the  seller  : — Held,  a  document  needing 
registration  under  the  Bills  of  Sale  Act,  1878. 
Snell  v.  Heighten,  1  C.  &  E.  95— Grove,  J. 

t 

Document  not  constituting  Contract.  ]— » 

By  the  3rd  section  of  the  Bills  of  Sale  Act,  1878 
(41  &  42  Vict  c.  31),  that  Act  applies  to  every 
bill  of  sale  whereby  the  holder  or  grantee  has 
power  to  seize  or  take  possession  of  any  personal 
chattels  comprised  in  or  made  subject  to  such 
bill  of  sale,  and  by  the  4th  section  the  expression 
"  bill  of  sale  "  shall  include  receipts  for  purchase 
moneys  of  goods.  On  the  4th  March,  1884,  A. 
paid  B.  200?.  for  the  purchase  of  his  furniture, 
taking  at  the  time  of  the  purchase  and  payment 
a  receipt  for  the  purchase-money.  The  furniture 
remained  in  the  possession  of  B.  until  the  15th 
March,  1884,  when  A.  removed  it  to  a  warehouse, 
paying  for  the  removal  and  warehousing.  On 
the  26th  March,  A.  again  removed  it  to  a  bouse 
which  she  let  to  B.  from  the  29th  March,  together 
with  the  furniture  therein.  On  the  14th  Novem- 
ber the  furniture  was  taken  in  execution  under 
a  judgment  obtained  against  B.  in  proceedings 
commenced  in  July  : — Held,  in  an  interpleader 
issue,  that  the  purchase  of  the  furniture  being  a 
bona  fide  transaction,  the  claimant  had  a  good 
title  thereto  apart  from  the  receipt,  and  the 
receipt  was  therefore  not  a  bill  of  sale  within 
the  meaning  of  the  4th  section  of  the  Bills  of 
Sale  Act,  1878,  and  did  not  require  attestation 
and  registration  thereunder.  Preece  v.  Chilling, 
63  L.  T.  763— D. 

Where,  upon  an  oral  agreement  by  which  title 
to  a  personal  chattel  was  given  by  way  of  se- 
curity for  an  advance,  the  grantor  of  such  chattel 
signed  a  "  receipt "  which  was  not  intended  to 
and  did  not  express  the  contract  between  the 
parties  :— Held,  that  such  document,  not  being 
an  assurance,  was  not  a  bill  of  sale  within  the 
4th  section  of  the  Bills  of  Sale  Act,  1878 ;  and 
that,  the  grantee  in  possession  of  the  chattel 
under  such  agreement  being  able  to  defend  his 
possession  without  reference  to  such  document, 
his  title  was  not  affected  by  the  provisions  of  the 

I  2 


231 


BILLS    OF    SALE— Registration. 


282 


Bills  of  Sale  Acts.  Newlove  v.  Shrewsbury,  21 
Q.  B.  D.  41  ;  57  L.  J.,  Q.  B.  476  ;  36  W.  R.  835— 
C.  A. 

"  Inventory  with  Receipt  "—Transaction  com- 
plete without  Document  ] — By  b.  4  of  the  Bills 
of  Sale  Act,  1878,  it  is  provided  that  the  "  ex- 
pression '  bill  of  sale '  shall  include  bills  of  sale, 
assignments,  transfers,  declarations  of  trust  with- 
out transfer,  inventories  of  goods  with  receipt 
thereto  attached,  or  receipts  for  purchase-moneys 
of  goods,  and  other  assurances  of  personal  chat- 
tels." Furniture,  which  was  the  property  of  C, 
was  deposited  in  a  warehouse  in  the  name  of  J., 
who  paid  the  warehouse  charges.  C.  subsequently 
agreed  to  sell  the  furniture  to  J.  and  R.  for  55/., 
and  they  sent  C.  a  cheque  for  that  amount.  C. 
then  sent  them  a  list  of  the  furniture,  with  a 
receipt  written  at  the  end,  and  the  furniture  was 
shortly  afterwards  sent  to  them  from  the  ware- 
house, the  delivery  order  to  the  warehouse  being 
signed  by  J.: — Held,  that  there  had  been  a 
perfect  and  complete  transaction  of  purchase 
and  sale,  by  which  J.  and  B.  acquired  a  good 
title  to  the  furniture,  independently  of  the  list 
and  receipt,  and  that  the  document,  therefore, 
was  not  a  bill  of  sale  within  the  meaning  of  the 
Bills  of  Sale  Act,  1878.  Shepherd  v.  Pulbrook, 
59  L.  T.  288— C.  A. 

The  goods  of  B.  were  seized  by  the  sheriff 
nnder  a  writ  of  fi.  fa.,  issued  by  E.,  and  were 
sold  by  private  contract  to  E.,  who  agreed  to  let 
them  to  B.'s  wife  on  certain  terms.  On  com- 
pletion of  the  sale  the  sheriff  gave  E.  an  inven- 
tory of  the  goods,  and  a  receipt  for  the  purchase- 
money.  These  documents  were  not  registered 
under  the  Bills  of  Sale  Act,  1878.  B.  remained 
in  possession  of  the  goods,  which  were  afterwards 
seized  by  the  sheriff  under  a  writ  of  fi.  fa., 
issued  by  H. : — Held,  that  £.  had  a  good  title 
to  the  goods  independently  of  the  inventory  and 
receipt,  that  those  documents  did  not  constitute 
a  bill  of  sale  within  the  meaning  of  the  Bills  of 
Sale  Acts,  and  that  E.  was  entitled  to  the  goods 
as  against  H.  Hay  don  v.  Br  own,  59  L.  T.  810 
— C.A. 

Invoice  and  Receipt  —  Hire  and  Purchase 
Agreement.] — The  B.  Company,  being  in  want 
of  money,  and  being  in  possession  of  certain 
waggons  in  which  they  had  an  interest,  applied 
to  the  respondents,  who  agreed  to  bny  the 
waggons  for  1,0002.,  and  advanced  that  sum, 
257/.  thereof  being  paid  to  the  owners  of  the 
waggons,  and  the  rest,  743/.,  to  the  B.  Company, 
The  respondents  received  from  the  B.  Company 
an  invoice  for  the  waggons  and  a  receipt  for  the 
743/.,  and  from  the  owners  of  the  waggons  a 
receipt  for  the  257/.  At  the  same  time  the 
respondents  leased  the  waggons  to  the  B.  Com- 
pany for  three  years,  at  a  yearly  rent,  payable 
quarterly,  and  calculated  to  replace  the  1,000/. 
with  seven  per  cent,  interest,  upon  the  terms  that 
if  all  the  payments  were  duly  made  the  B.  Com- 
pany should  have  the  option  of  purchasing  the 
waggons  at  the  end  of  the  lease  for  a  nominal 
sum,  and  that  if  the  rent  was  not  duly  paid  after 
demand  the  respondents  should  be  entitled  to  re- 
possess and  enjoy  the  waggons  as  in  their  former 
estate,  and  that  the  agreement  should  thereupon 
cease  and  determine.  The  B.  Company  having 
made  default  in  payment  of  the  rent,  the  re- 
spondents claimed  the  waggons  from  a  railway 
company  into  whose  possession  they  had  come, 


bnt  were  resisted  on  the  ground  that  the  trans- 
action was  void  under  the  Bills  of  Sale  Acts, 
1878  and  1882,  the  documents  not  being  in  the 
form  prescribed  by  those  acts  for  bills  of  sale : 
— Held,  that  the  transaction  was  in  fact  a  pur- 
chase by  the  respondents,  and  was  not  a  mort- 
gage by  the  B.  Company  or  a  security  for  the 
payment  of  money ;  that  the  documents  in  ques- 
tion were  not  bills  of  sale  within  the  Bills  of  Sale 
Acts,  but  that  even  if  they  had  been  the  respon- 
dents had  made  an  independent  title  to  the 
waggons.  Manchester,  Sheffield,and LincdtuHre 
Railway  v.  North  Central  Waggon  Company,  IS 
App.  Cas.  554  ;  58  L.  J.,  Ch.  219  ;  59  L.  T.  730 ; 
37  W.  R.  305— H.  L.  (E.). 

Hiring  Agreement — Loan.] — In  June,  1886, 
B.  sold  the  furniture  in  his  house  to  W.  for  100/., 
who  handed  him  a  cheque  for  the  money,  bnt  no 
receipt  was  given.  Shortly  afterwards,  by  an 
agreement  in  writing,  W.  agreed  to  let  the 
furniture  to  B.  until  the  10th  July  then  next, 
and  R.  agreed  to  pay  a  rent  of  100/.  for  the  use 
of  it  during  the  term,  as  follows  : — 1/.  (interest) 
on  the  signing  thereof,  50/.  on  or  before  the  25th 
June  then  next,  and  50/.  on  or  before  the  10th 
July  then  next.  On  breach  of  any  of  the 
stipulations,  W.  was  to  have  power  to  remove 
and  sell  the  furniture : — Held,  that  the  agree- 
ment was  a  valid  agreement  for  hire  and  not  a 
bill  of  sale  ;  and  that  therefore  the  transaction 
was  unaffected  by  the  Bills  of  Sale  Acts,  1878 
and  1882.  Redhead  v.  West  wood,  59  L.  T.  28 
— Kay,  J. 


Assignment    of,    as    Security.]  —  The 


debtors  deposited  with  a  creditor  as  security  for 
his  debt  certain  hire-purchase  agreements  of 
furniture,  and  subsequently  executed  an  assign- 
ment by  which  they  assigned  all  their  rights 
under  the  said  agreements  to  the  creditor.  Dne 
notice  of  the  assignment  was  given  to  the  hiren, 
and  the  debtors  shortly  afterwards  became  bank- 
rupt : — Held,  that  the  assignment  was  merely 
the  assignment  of  a  chose  in  action  and  that  it 
did  not  require  to  be  registered  as  a  bill  of  sale, 
and  that  the  creditor  was  entitled  to  the  benefits 
of  the  agreements  as  against  the  trustee  in  the 
bankruptcy.  Rawlings,  Ex  parte,  Davis,  In  ft, 
60  L.  T.  157  ;  37  W.  R.  142— Cave,  J. 

Equitable  Transfer  of  Existing  Security.]-- 

An  agreement  accompanying  the  deposit  of  a 
registered  bill  of  sale  by  way  of  equitable  sub- 
mortgage is  a  "  transfer  or  assignment "  of  a  bill 
of  sale  which  by  section  10  of  the  Bills  of  Sale 
Act,  1878,  need  not  be  registered.  Turquand, 
Ex  parte,  Parkers,  In  re,  14  Q.  B.  D.  636; 
•  54  L.  J.,  Q.  B.  242  j  53  L.  T.  679  ;  33  W.  R.  437 
— C.A. 

Debentures  of  Company.  ]—See  Company  (De- 
bentures). 


2.    BECTIFICATION    AND    RENEWAL  OF 
REGISTRATION. 

Jurisdiction  of  Judge.]  —  In  1875,  a  post- 
nuptial settlement  was  executed  and  registered 
as  a  bill  of  sale.  In  1880,  it  was  re-registered, 
but  owing  to  inadvertence  the  registration  was 
not  renewed  in  1885.  Upon  this  omission  being 
discovered,  application  was  made  to  a  judge  in 


238 


BILLS    OF    SALE— Registration. 


234 


chambers,  and  in  October,  1886,  leave  under  s.  14 
of  the  Act  of  1878  to  renew  the  registration  was 
granted  In  November,  1886,  the  settlor  became 
bankrupt  By  an  error  in  the  affidavit  filed  in 
accordance  with  s.  11  upon  the  renewed  regis- 
tration in  October,  1886,  such  registration  became 
void.    Upon  this  being  discovered  in  February, 
1887,  the  trustees  of  the  settlement  applied  ex 
parte  to  the  same  judge  to  allow  the  error  to  be 
amended  and  the  register  rectified.    An  order 
was  made  to  this  effect,  the  judge  stating  his  in- 
tention to  be  that  the  parties  should  be  put 
hack  in  the  position  they  would  have  been  in, 
in  October,  1886,  had  no  mistake  been  made. 
Upon  an  application  by  the  settlor's  trustee  in 
bankruptcy  to  discharge  or  vary  this  order  for 
the  benefit  of  the  creditors  : — Held,  that  s.  14 
conferred  full  power  upon  the  judge  in  his  dis- 
cretion both  to  grant  leave  to  renew  the  regis- 
tration and   to   rectify  the    subsequent  error. 
Dobbin's  Settlement,  In  re,  56  L.  J.,  Q.  B.  295  ; 
57  L.  T.  277— D. 

Sect  14  of  the  Bills  of  Sale  Act,  1878  (41  &  42 
Tict  c  31),  enacts  that  a  judge  on  being  satisfied 
that  the  omission  to  register  a  bill  of  sale,  or  the 
omission  or  misstatement  of  the  name,  residence, 
or  occupation  of  any  person  was  accidental,  or 
doe  to  inadvertence,  may  in  his  discretion  order 
men  omission  or  misstatement  to  be  rectified  by 
the  insertion  in  the  register  of  the  true  name, 
residence,  or  occupation,  or  by  extending  the 
time  for  such  registration  on  such  terms  and  con- 
ditions (if  any)  as  to  security,  &c,  as  he  thinks 
fit  to  direct : — Held,  that  the  power  of  rectifica- 
tion given  by  the  section  is  limited  by  the 
description  of  "  register  "  in  s.  12  of  the  Act,  and 
therefore,  where  the  affidavit  filed  with  the 
registrar  under  s.  10,  sub-s.  2,  has  by  inadver- 
tence omitted  to  describe  the  residence  and 
occupation  of  an  attesting  witness,  the  judge  has 
no  power  to  allow  a  supplemental  affidavit  to  be 
filed  supplying  such  particulars.  Crew  v.  Cum- 
mhf*,  21  Q.  B.  D.  420  ;  57  L.  J.,  Q.  B.  641 ;  59 
L.T.  886  ;  36  W.  R  903— C.  A. 

Extension  of  Time.] — The  time  for  regis- 
tration cannot  be  extended  under  the  14th 
section  of  the  Bills  of  Sale  Act,  1878,  so  as  to 
defeat  the  vested  right  of  an  execution  creditor. 
lb. 

Cine,  how  computed.] — The  bill  of  sale, 

through  inadvertence  not  being  registered  within 
the  time  limited  by  the  Bills  of  Sale  Act,  1879, 
leave  was  given  on  the  ex  parte  application  of 
the  grantee  to  register  within  three  days  ;  and 
the  bill  of  sale  was  registered  on  the  fourth  day 
from  the  order,  reckoning  an  intervening  Sunday. 
Prior  to  the  ex  parte  application  the  grantors 
had  executed  a  deed  vesting  all  their  property  in 
trustees  for  the  benefit  of  their  creditors.  On 
this  act  of  bankruptcy  they  were  subsequently 
adjudicated  bankrupts,  and  the  assignees  filed  a 
charge  impeaching  the  validity  of  the  bill  of 
«le:— HekL  first,  that  Sunday  was  not  to  be 
coasted  in  the  three  days  limited  by  the  order 
for  registration,  and  that  therefore  the  registra- 
tion had  been  effected  within  the  time  prescribed 
by  that  order.  Secondly,  that  the  validity  of  the 
«der  could  only  be  questioned  in  the  court  in 
which  it  was  made.  Semble,  also,  that  there 
was  roll  jurisdiction  to  make  the  order  under 
the  circumstances  as  they  existed  at  its  date, 
aad  that  the  only  ground  for  setting  it  aside 


would  be  the  suppression  from  the  court  of  the 
creditor's  deed,  and  the  consequent  act  of 
bankruptcy.  Parke,  In  re,  13  L.  R.,  Ir.  85— 
Bk. 

Section  14  not  Retrospective.]— A  bill  of  sale, 
void  for  want  of  renewal  of  registration  at  the 
commencement  of  the  Bills  of  Sale  Act,  1878, 
cannot  be  renewed  under  s.  14  of  that  act. 
Askew  v.  Lewis,  or  Lewis  v.  DrUeoll,  10  Q.  B.  D. 
477  ;  48  L.  T.  534  ;  31  W.  R.  567  ;  47  J.  P.  312  ; 
1  C.  &  E.  34— Cave,  J. 

Where  a  bill  of  sale  was,  at  the  commence- 
ment of  the  Bills  of  Sale  Act,  1878,  void  for 
want  of  renewal  of  registration,  the  time  for 
renewal  cannot  be  extended  under  s.  14  of  that 
act.  Askew  v.  Lewis  (10  Q.  B.  D.  477)  approved. 
Official  Receiver,  Ex  parte,  Emery,  In  re,  21 
Q.  B.  D.  405 ;  57  L.  J.,  Q.  B.  629  ;  37  W.  B.  21 
— C.  A. 

Bill  of  8ale  under  Act  of  1854 — Grantor  and 
Grantee— Registration  not  renewed.] — In  1873 
S.  executed  a  bill  of  sale  of  furniture  to  the 
respondents  to  secure  a  loan,  with  an  absolute 
unconditional  power  to  take  possession  and  sell 
in  case  of  default  of  payment  upon  demand. 
The  bill  was  duly  registered,  but  never  re- 
registered. In  1883  the  respondents,  in  order 
to  protect  the  furniture  from  S.'s  creditors,  de- 
manded payment  and  on  default  took  possession 
of  the  furniture  and  sold  it  to  C,  giving  him  a 
receipt  for  the  purchase-money  though  no  money 
actually  passed.  At  the  same  time  C.,  not  being 
able  to  pay,  executed  a  bill  of  sale  of  the  furni- 
ture to  the  respondents  to  secure  the  purchase- 
money.  This  bill  was  duly  registered :  the 
receipt  was  not  registered.  The  transaction 
with  C.  was  found  by  the  jury  to  be  a  bona  fide 
one.  The  furniture  having  been  afterwards  seized 
under  a  fi.  fa.  against  S. : — Held,  that  the  sale 
to  C,  being  an  absolute  and  bona  fide  transfer  of 
the  property,  the  bill  of  1873  was  spent  and 
satisfied,  and  the  Bills  of  Sale  Acts  of  1854, 1866, 
1878,  and  1882  had  no  application  whatever  to 
it  at  the  time  of  the  execution,  whether  the  fur- 
niture was  or  was  not  at  that  time  in  the 
apparent  possession  of  S. :  and  that  the  re- 
spondents were  entitled  to  the  furniture.  Cook- 
stm  v.  Swire,  9  App.  Cas.  653  ;  54  L.  J.,  Q.  B. 
249  ;  52  L.  T.  30 ;  S3  W.  R.  181— H.  L.  (E.). 


3.  LOCAL  REGISTRATION. 

Effect  of  Omission.1— The  omission  of  the 
registrar  of  bills  of  sale  to  transmit  an  abstract 
of  a  registered  bill  of  sale  to  the  registrar  of  the 
county  court,  within  the  district  of  which  the 
chattels  enumerated  in  the  bill  are  situated,  does 
not  avoid  the  bill.  Trinder  v.  Ray  nor,  56  L.  J., 
Q.  B.  422— D. 


4.   DESCRIPTION   OF   GRANTOR  AND 
WITNESSES. 

Grantor's  Name— Intent  to  Mislead.]— In  a 
bill  of  sale  given  by  husband  and  wife,  and  in 
the  affidavit  filed  on  registration,  the  grantors' 
names  were  described  as  "Alfred  Salmon  and 
Edith  Campbell  Salmon,  wife  of  Alfred  Salmon." 
The  husband's  true  name  was  George  Henry 


285 


BILLS    OF    SALE— Registration. 


286 


Arthur  Salmon,  and  the  misdescriptions  were 
purposely  made  by  both  the  grantors  in  order  to 
conceal  the  fact  that  they  had  given  a  bill  of 
sale  : — Held,  that  the  registration  of  the  bill  of 
sale  was  not  thereby  rendered  invalid.  Down* 
v.  Salmon,  20  Q.  B.  fa.  775 ;  57  L.  J.,  Q.  B.  454  ; 
59  L.  T.  374  ;  36  W.  R.  810— D.  Cp.  Lee  v. 
Turner,  infra. 

Grantor's  Occupation— Two  distinct  Trades — 
One  Trade  described.] — Where  the  grantor  of 
a  bill  of  sale  is  otherwise  rightly  described,  the 
omission  of  some  other  description,  which  was 
not  intended  nor  calculated  to  deceive,  and  did 
not  in  fact  deceive,  does  not  invalidate  the  bill 
of  sale.  The  onus  of  proof  of  the  omission  being 
intended  or  calculated  to  deceive  is  upon  the 
person  who  impugns  the  validity  of  the  bill  of 
sale  on  such  ground.  Throuel  v.  Marsh,  53 
L.  T.  321— D. 

To  comply  with  section  10  of  42  &  43  Vict. 
c.  50,  sub-s.  2,  it  is  necessary,  in  registering  a 
bill  of  sale,  to  file  a  description  of  all,  and  not 
one  alone  out  of  several  businesses  followed  by 
the  grantor  at  the  time  of  its  execution,  for  the 
purpose  of  seeking  to  obtain  a  livelihood  or 
wealth ;  and,  therefore,  when  the  grantor,  a 
widow,  at  the  time  of  the  execution  of  a  bill  of 
sale,  besides  being  possessed  of  a  farm,  carried 
on  the  business  of  a  grocer  and  licensed  vintner, 
and  was  described  in  the  affidavit  of  the  attest- 
ing witness  as  "  widow  and  farmer ; "  it  was 
held,  that  this  was  an  insufficient  description, 
and  that  the  registration  was  bad.  Fitzpatrick, 
In  re,  19  L.  R.,  Ir.  206— Bk. 

Misdescription.]— The  grantor  of  a  bill 

of  sale  was  described  in  the  bill  of  sale  and  in 
the  affidavit  filed  upon  registration  as  "  Kendrick 
Turner,  tutor,"  whereas,  in  fact,  his  name  was 
Frederick  Henry  Turner,  and  he  was  a  school- 
master : — Held,  that  the  misdescription  rendered 
the  registration  of  the  bill  of  sale  void.  Lee  v. 
Turner,  20  Q.  B.  D.  773  ;  59  L.  T.  320— D. 

In  a  bill  of  sale  the  grantor  was  described  as 
"  contractor  and  financial  agent "  : — Held,  that 
the  object  of  requiring  the  occupation  of  the 
grantor  to  be  stated  was  merely  to  identify 
him  and  that  there  could  not  be  a  description 
of  the  grantor's  occupation  which  could  better 
tend  to  identify  him.  Sharp  v.  McHenry, 
38  Ch.  D.  428  ;  57  L.  J.,  Ch.  961  ;  57  L.  T. 
606— Kay,  J. 

In  an  affidavit  filed  with  a  bill  of  sale  under 
the  Bills  of  Sale  Act,  1878  (41  k  42  Vict.  c.  31), 
8.  10,  sub-s.  2,  R.,  the  grantor  of  the  bill  of  sale 
was  described  as  "  carrying  on  the  business  of  a 
wine  and  spirit  merchant,  and  dealer  in  provi- 
sions and  general  goods,  at  4A»  Dean  Street, 
Liverpool,  under  the  style  of  the  London  and 
Westminster  Supply  Association."  At  the  time 
the  bill  of  sale  was  granted,  R.,  who  formerly 
'owned  the  business,  was  the  manager,  and  re- 
ceived a  salary  : — Held,  a  misdescription.  Cooper 
v.  Davis,  32  W.  R.  329— C.  A.  Affirming,  48  L.  T. 
831— D. 

Description  of  Attesting  Witness.]  — "  Walter 
Neve,  of  Luton,  in  the  county  of  Bedford,  soli- 
citor : " — Held,  a  sufficient  description  of  an 
attesting  witness  within  the  meaning  of  the  Bills 
of  Sale  Act,  1878.  Gardner  v.  Smart,  1  C.  &  E. 
14 — Lopes,  J. 


5.  OTHER  POINTS. 


Proof  of  Registration— Filing  Affidavit]— 
The  production  at  the  hearing  of  an  interpleader 
issue,  of  a  bill  of  sale,  together  with  a  certificate 
of  registration,  is  no  evidence  that  the  proper 
affidavit  was  also  filed  in  accordance  with  the 
Bills  of  Sale  Act,  1878,  s.  10,  but  the  proper 
course  is  to  adjourn  the  hearing  for  the  produc- 
tion of  evidence,  and  not  hold  the  bill  of  sale 
void  on  this  ground  alone.  Turner  v.  Culpa*, 
36  W.  R.  278— D. 

Registration  of  "  Copy  "—Blanks  in  Copy  not 
in  Original] — A  bill  of  sale  was  in  due  form 
and  had  no  blanks  left  in  it,  but  the  copy  that 
was  registered  contained  blanks  in  the  place 
where  the  principal  sum  was  mentioned ;  in  an 
action  in  which  the  validity  of  the  bill  of  sale 
oame  in  question  : — Held,  that  the  words  "  true 
copy  "  in  s.  10,  sub-s.  2,  of  the  Bills  of  Sale  Act, 
1878,  meant  a  copy  that  was  essentially  true, 
and  it  was  not  an  essential  matter  with  refer- 
ence to  the  truth  of  the  copy  that  it  contained 
blanks  which  could  not  mislead  anvone  as  to  its 
effect.  Sharp  v.  McHenry,  38  Ch.  D.  428; 
57  L.  J.,  Ch.  961 ;  57  L.  T.  606— Kay,  J. 

Statement  that  Attesting  Solicitor  wis  pre- 
sent.]— G.  executed  a  bill  of  sale  of  chattels  in 
favour  of  the  plaintiff  to  secure  a  debt  The 
affidavit  of  attestation  and  execution  did  not,  in 
terms,  state  that  the  attesting  solicitor  was  pre- 
sent when  the  deed  was  executed,  but  it  did 
state  that  the  deponent  was  present,  that  it  was 
duly  attested,  and  that  the  deponent  and  the 
attesting  solicitor  were  the  only  attesting  wit- 
nesses : — Held,  that  the  affidavit  in  effect  stated 
that  the  attesting  solicitor  was  present  when  the 
deed  was  executed,  and  that  it  was  therefore  in 
compliance  with  s.  10  of  the  Bills  of  Sale  Act, 
1878.     Cooper  v.  Zeffert,  32  W.  R.  402— C.  A 

Attestation  of  Absolute  Bill  of  Sale.]— An 
absolute  bill  of  sale  must  be  attested  in  the 
manner  directed  by  s.  10,  sub-s.  1,  of  the  Bills 
of  Sale  Act,  1878,  and  therefore  the  attestation 
must  state  that,  before  the  execution  of  the  bill 
of  sale,  the  effect  thereof  has  been  explained  to 
the  grantor  by  the  attesting  solicitor  ;  otherwise 
the  bill  of  sale  will  be  void.  Canon  v.  Church!*!, 
53  L.  J.,  Q.  B.  335  ;  50  L.  T.  568— D. 

Affidavit — Omission  of  Commissioner's  Title.) 
— The  affidavit  filed  on  the  registration  of  a  bill 
of  sale  was  sworn  before  a  commissioner  to 
administer  oaths,  but  in  the  jurat  he  merely 
signed  his  name,  and  did  not  add  his  title  aft 
commissioner  :  —  Held,  that,  notwithstanding 
this  omission,  the  affidavit  was  sufficient.  John- 
son, Ex  parte,  Chapman,  In  re,  26  Ch.  D.  338 ; 
53  L.  J.,  Ch.  763  ;  60  L.  T.  214  ;  32  W.  R.  693^ 
48  J.  P.  648— C.  A. 


II.    8TATTTT0RY  F0BM. 
1.  GENERAL  PRINCIPLES. 

Same  Legal  Effect.]— A  bill  of  sale  which 
deviated  from  the  statutory  form  will  not  be 
made  void  by  s.  9  of  the  Bills  of  Sale  Act,  1882r 
if  it  produces  the  precise  legal  effect — neither 
more  nor  less — of  that  form,  and  if  the  variance 
is  not  calculated  reasonably  to  deceive  those  for 


237 


BILLS    OF    SALE— Statutory  Form. 


288 


whose  benefit  the  statutory  form  is  provided. 
Stanford,  Ex  parte,  Barber,  In  re,  17  Q.  B.  D. 
259;  55  L.  J.,  Q.  B.  341  ;  54  L.  T.  894  ;  34  W.  R. 
287,  507— C.  A. 

Semble,  that  a  bill  of  sale  which  produces 
precisely  the  same  legal  effect  as  a  document  in 
the  statutory  form  may  still  be  void  under  s.  9, 
it  for  instance,  it  contains  prolix  and  useless 
recitals,  and  is  generally  framed  with  unneces- 
sary prolixity.    lb. — Per  Fry,  L.  J. 

By  s.  9  of  the  Bills  of  Sale  Act,  1882,  a  bill 
of  sale  is  void  unless  made  in  accordance  with 
the  form  in  the  schedule  to  the  act : — Held,  that 
a  bill  of  sale  is  valid  if  it  is  substantially  like  the 
form.  Robert*  v.  Robert*,  13  Q.  B.  D.  794  ;  53 
L  J.,  Q.  B.  313  ;  50  L.  T.  351  ;  32  W.  R.  605— 
C.A. 

Statutory  Form  impossible.] — Where  it  is  im- 
possible to  make  a  bill  of  sale  in  the  form  given 
in  the  schedule  to  the  Bills  of  Sale  Act,  1882, 
such  a  document  is  void.  Parsons,  Ex  parte,  or 
Clark,  Ex  parte,  Totcnsend,  In  re.  16  Q.  B.  D. 
532 ;  55  L.  J.,  Q.  B.  137  ;  53  L.  T.897  ;  34  W.  R. 
329;  3  M.  B.  R.  36—0.  A.  See  also  Hilton  v. 
Tueier,  ante,  col.  226. 

Indemnity  to  Surety — Amount  and  Time 

•f  Payment  uncertain.] — A  bill  of  sale  given  by 
the  grantor,  "in  consideration  of  the  grantee 
having  at  the  request  of  the  grantor  become 
guarantee,  and  having  signed  a  promissory  note 
for  the  payment  of  a  Bum  of  452.  obtained  by 
the  grantor  from  one  B.,  of  which  322.  or  there- 
abouts is  now  owing,"  and  further  expressed  to 
assign  the  chattels  "  by  way  of  security  for  the 
payment  of  any  moneys  the  grantee  may  be 
called  upon  to  pay  in  respect  of  the  guarantee, 
and  interest  thereon  at  the  rate  of  five  per  cent, 
per  annum,"  and  the  grantor  further  agreeing 
"to  pay  the  principal  sum,  and  any  further  sums, 
together  with  interest  then  due,  by  monthly 
payments  of  21.  on  the  first  of  every  month/'  is 
void  under  a.  9  of  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882,  as  not  being  in  accord- 
ance with  the  form  prescribed  by  the  act  by 
reason  of  both  the  amount  payable  by  the 
grantee  under  the  guarantee  and  the  time  when 
rach  amount  would  become  payable  being  un- 
certain. Hughes  v.  Little,  18  Q.  B.  D.  32  ;  56 
L  J„  Q.  B.  96  ;  55  L.  T.  476 ;  35  W.  R.  36— 
C.A. 

Departure  Jtiwm  Statutory  Form— Extent  of 
Avaidanee.] — Where  personal  chattels  and  other 
property  are  mortgaged  by  a  deed  which  is  not 

ie  in  accordance  with  the  statutory  form  of  a 
bill  of  sale,  and  is  therefore,  by  s.  9  of  the  Bills 
of  Sale  Act,  1S82,  void  as  regards  the  "  personal 
chattels,"  such  deed  is  valid  as  to  the  other  pro- 
perty comprised  in  it,  if  it  is  possible  to  sever 
the  security  upon  the  personal  chattels  from  that 
upon  the  other  property.  Byrne,  Ex  parte, 
Bnrdett,  In  re,  20  Q.  B.  D.  310  ;  67  L.  J.,  Q.  B. 
263;  58L.T.708;  36  W.  R.  345  ;  5  M.  B.  R.  32 
-C.A. 

A  deed  assigned  to  the  grantee  as  security  for 
a  debt  "  the  several  chattels  and  things  speci- 
fically described  "  in  the  schedule  to  the  deed. 
The  schedule  comprised  "  personal  chattels,"  and 
also  a  gas  engine,  which  did  not  come  within 
the  definition  of  "  personal  chattels  "  contained 
in  s.  4  of  the  Bills  of  Sale  Act,  1878.  The  deed 
was  not  made  in  accordance  with  the  statutory 
form  of  bill  of  sale  contained  in  the  schedule  to 


the  Bills  of  Sale  Act,  1882  .-—Held,  that  the 
deed  was,  under  s.  9  of  the  Bills  of  Sale  Act, 
1882,  void  as  to  the  "  personal  chattels,"  but 
that  it  remained  valid  as  to  the  gas  engine. 
Davits  v.  Rues  (17  Q.  B.  D.  408),  explained  and 
distinguished.  lb.  S.  P.  Banska  Woollen  Mills 
Co.,  In  re,  21  L.  R.,  Ir.  181— M.  R. 

When  a  bill  of  sale  includes  a  mortgage  of 
chattels  real,  a  deviation  from  the  statutory 
form  invalidates  the  instrument  so  far  only  as 
regards  the  chattels  personal  comprised  in  it, 
and  does  not  avoid  it  so  far  as  it  is  a  mortgage  of 
chattels  real.  Davie*  v.  Rees  (17  Q.  B.  D.  408) 
distinguished.  O'Duwer,  In  re,  19  L.  R.,  Ir.  19 
-Bk. 

Sect.  9  of  the  Bills  of  Sale  Act,  1882,  in 
avoiding  a  bill  of  sale  which  is  not  made  in 
accordance  with  the  form  in  the  schedule  to  the 
Act,  avoids  it  in  toto — not  merely  as  regards  the 
personal  chattels  comprised  in  it — so  that  a  cove- 
nant contained  in  it  for  the  payment  by  the 
grantee  of  the  principal  and  interest  thereby 
secured  is  rendered  void  as  against  him.  Davie* 
v.  Rees,  17  Q.  B.  D.  408  ;  55  L.  J.,  Q.  B.  363  ;  64 
L.  T.  813  ;  34  W.  R.  673— C.  A. 


of  Chattels  as  "beneficial 
owner."] — A  bill  of  sale  of  chattels  given  by 
way  of  security  for  the  payment  of  money  by 
which  the  grantor  purports  to  assign  the  chattels 
" as  beneficial  owner,  is  not  "in  accordance" 
with  the  form  given  in  the  schedule  to  the  Bills 
of  Sale  Act  of  1882,  and  is  therefore  made  void 
by  s.  9  of  that  Act.  Stanford,  Ex  parte,  Barber, 
In  re,  supra. 

Provision  as  to  Possession  of  Instrument  after 
Payment.] — A  bill  of  sale  given  as  a  security  for 
the  payment  of  money  contained  a  stipulation 
that,  as  soon  as  the  sums  secured  were  satisfied, 
the  grantee  would  give  a  receipt  in  full  of  all 
demands  and  indorse  a  copy  of  the  same  on  the 
bill  of  sale,  but  the  bill  of  sale  and  any  docu- 
ments signed  by  the  grantor  or  any  other  person 
in  relation  to  the  loan  should  remain  in  the 
custody  and  be  the  property  of  the  grantee  : — 
Held,  that  this  stipulation  was  a  deviation  from 
the  statutory  form  given  by  the  Bills  of  Sale  Act, 
1882,  and  that  the  bill  of  sale  was  therefore  void. 
Watson  v.  Strickland,  19  Q.  B.  D.  391  ;  66  L.  J., 
Q.  B.  594  ;  35  W.  R.  769— C.  A. 


2.  TIME  OF  PAYMENT. 

Principal  payable  in  one  sum.] — A  bill  of  sale 
given  as  security  for  money,  by  which  the  mort- 
gage debt  is  made  payable  in  one  entire  sum,  is 
"  in  accordance  with "  the  statutory  form. 
Watkins  v.  Eoans,  18  Q.  B.  D.  386 ;  56  L.  J., 
Q.  B.  200 ;  56  L.  T.  177;  36  W.  R.  313— C.  A. 

Instalments  on  Conditions.  ] — A.  was  the 


grantor  of  a  bill  of  sale,  by  the  terms  of  which 
he  covenanted  to  pay  the  principal  sum  with 
interest  thereon  at  a  fixed  rate  upon  the  1st 
June.  The  bill  of  sale  further  contained  a  cove- 
nant that,  if  the  grantor  did  not  break  any  of 
the  covenants  contained  in  the  bill  of  sale,  and 
paid  to  the  grantee  the  principal  sum  and 
interest  by  monthly  instalments,  the  first  instal- 
ment being  payable  on  the  1st  June,  the  grantee 
would  accept  payment  by  such  instalments. 
Upon  the  bankruptcy  of  A.  the  official  receiver 
impugned  the  validity  of  the  bill  of  sale : — 


1 


289 


BILLS    OF    SALE— Statutory  Farm. 


240 


Held,  that  the  condition  in  question  was  inserted 
in  ease  of  the  debtor,  that  the  time  of  payment 
was  certain  and  the  bill  of  sale  valid.  Payne, 
Ex  parte,  Coton,  In  re,  66  L.  T.  671 ;  85  W.  R. 
476  ;4M.B.B.  90— D. 

Unequal  Payment  of  Principal.] — The  form 
in  the  schedule  to  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882,  is,  in  respect  of  the  cove- 
nant by  the  grantor  to  pay  the  principal  sum 
secured  "  by  equal  payments  "  at  specified  times, 
directory  and  not  obligatory  ;  so  that  a  covenant 
to  pay  the  principal  sum  by  unequal  payments 
at  the  specified  times  does  not  render  a  bill  of 
sale  void.  Bawling*,  Ex  parte,  Cleaver,  In  re, 
18  Q.  B.  D.  489 ;  66  L.  J.,  Q.  B.  197  ;  56  L.  T. 
593  ;  86  W.  R.  281— C.  A. 

Payment  Monthly — Whole  Amount  remaining 
Unpaid  to  be  Due  on  Default]— A  bill  of  sale  of 
personal  chattels  granted  in  1884  to  secure  80Z. 
stated  the  stipulated  times  or  time  of  payment  of 
principal  and  interest  as  "  by  equal  monthly  pay- 
ments of  82.,  the  first  payment  to  be  made  on  the 
1st  of  March  next,  but  if  default  be  made  in  any 
payment  when  it  becomes  due  then  the  whole  of 
the  principal  unpaid  and  the  interest  then  due 
shall  be  at  once  payable  "  : — Held,  that  the  bill 
of  sale  was  in  accordance  with  the  form  in  the 
Bills  of  Sale  Act  (1878)  Amendment  Act,  1882. 
Lnmley  v.  Simmon*,  34  Ch.  D.  698  ;  66  L.  J.,  Ch. 
134  ;  35  W.  R.  422— C.  A. 

Time  must  be  Certain.] — See  Hughes  v.  Little, 
supra,  and  cases  infra. 

Payment  upon  Demand.] — A  bill  of  sale,  given 
by  way  of  security  for  payment  of  money,  con- 
tained an  agreement  by  the  grantor  to  pay  the 
sum  advanced  and  interest  upon  demand  made 
in  writing,  and  gave  power  to  the  grantee  to 
seize  and  sell  the  goods  on  default  in  payment  on 
demand  in  writing  : — Held,  that  the  agreement 
to  pay  the  money  on  demand  was  not  an  agree- 
ment to  pay  it  at  a  stipulated  time  in  accordance 
with  the  form  in  the  schedule  to  the  Bills  of  Sale 
Act  (1878)  Amendment  Act,  1882,  and  that 
therefore  the  bill  of  sale  was  void  by  s.  9  of  that 
act.  Hetherington  v.  Oroome,  13  Q.  B.  D.  789  ; 
58  L.  J.,  Q.  B.  577  ;  51  L.  T.  412  ;  33  W.  R.  103 
— C.  A. 

Semble,  the  sum  secured  should  be  made  pay- 
able on  a  specified  day,  and  a  bill  of  sale  making 
it  payable  on  demand  is  contrary  to  such  form. 
Melville  v.  Stringer,  13  Q.  B.  D.  392  ;  53  L.  J., 
Q.  B.  482  ;  50  L.  T.  774  ;  32  W.  R.  890— C.  A. 

A  bill  of  sale  which  provides  for  repayment  of 
the  loan  "  on  demand "  is  void.  Mackay  v. 
Merritt,  34  W.  R.  433— V.-C.  B. 

A  bill  of  sale  was  given  by  way  of  indemnity 
to  the  grantee  on  his  becoming  security  for  the 
payment  by  the  grantor  of  a  sum  of  money, 
being  an  instalment  of  a  composition  due  by  him 
to  his  creditors.  The  grantor  agreed  that  he 
would  pay  the  said  sum  of  money  to  his  creditors 
on  a  given  day,  and  the  bill  of  sale  provided 
that  if  he  did  not  pay  the  money  on  the  day 
named,  and  the  grantee  should  be  obliged  to  pay 
the  same,  the  grantor  would  repay  to  the  grantee 
the  amount  within  seven  days  after  demand  in 
writing,  with  power  in  default  to  the  grantee  to 
seize  and  sell  the  goods  : — Held,  that  the  bill  of 
sale  did  not  contain  an  agreement  to  pay  the 
money  secured  at  a  stipulated  time  in  accord- 


ance with  the  form  given  in  the  schedule  of  the 
Bills  of  Sale  Act  (1878)  Amendment  Act,  1882, 
and  was  therefore  void.  Sibley  v.  Higg*,  15  Q. 
B.  D.  619  ;  54  L.  J.,  Q.  B.  525  ;  33  W.  R.  748-D. 
A  bill  of  sale  given  by  way  of  security  for 
payment  of  money  contained  an  agreement  by 
the  grantor  to  pay  principal  and  interest  up  to 
demand,  within  twenty-four  hours  after  demand 
in  writing :— Held,  that  the  bill  of  sale  was  void 
under  s.  9  of  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882,  as  not  being  in  accord- 
ance with  the  form  prescribed  by  that  statute, 
the  agreement  to  pay  twenty-four  hours  after 
demand  not  being  an  agreement  to  pay  within  a 
stipulated  time.  Clenaon  v.  Towntend,  1 C.  &E. 
418 — Lopes,  J. 

Premiums  paid  by  Grantee.]— A  clause 

in  a  bill  of  sale  under  which  a  grantor  agrees  to 
keep  up  a  fire  insurance  on  the  goods  assigned, 
and  which  contains  a  stipulation  that,  in  case  of 
default  by  the  grantor,  all  moneys  expended  by 
the  grantee  for  keeping  up  the  insurance,  to- 
gether with  interest  at  a  given  rate,  should  "on 
demand  be  repaid "  by  the  grantor,  is  not  in 
contravention  of  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882.  Stanford,  Ex  parte, 
Barber,  In  re,  17  Q.  B.  D.  259  ;  34  W.  ft.  237 
— C.  A.    Affirming  55  L.  J.,  Q.  B.  339-D. 


3.  PROPERTY   COMPRISED  IN. 

Specifically  Described — Inventory.]— By  45  fc 

46  Vict.  c.  43,  s.  4,  the  chattels  comprised  in  a 
bill  of  sale  are  to  be  specifically  described  in  the 
schedule  : — Held,  that  the  description  "  house- 
hold furniture  and  effects,  implements  of  hus- 
bandry "  is  insufficient,  and  an  inventory  of  the 
chattels  is  necessary.  Robert*  v.  Huberts,  13 
Q.  B.  D.  794  ;  68  L.  J.,  Q.  B.  313  ;  50  L.  T.  351 ; 
32  W.  R.  605— C.  A. 

A  bill  of  sale  was  given  by  a  picture-dealer 
with  regard  to  (among  other  things,  as  to  which 
no  question  arose)  pictures,  &c.,  forming  stock- 
in-trade.  Such  bill  of  sale  purported  to  assign 
"  all  and  singular  the  several  chattels  and  things 
specifically  described  in  the  schedule  hereto  an- 
nexed." The  description  in  the  schedule  was 
14  At  47,  Mortimer  Street ;  four  hundred  and 
fifty  oil-paintings  in  gilt  frames,  three  hundred 
oil-paintings  unframed,  fifty  water-colours  in 
gilt  frames,  twenty  water-colours  unframed,  and 
twenty  gilt  frames": — Held,  that  the  bill  of 
sale  did  not  comply  with  the  requirements  of 
section  4  of  the  Bills  of  Sale  Act  (1878)  Amend- 
ment Act,  1882,  and  therefore  was  void  as  against 
an  execution  creditor  so  far  as  chattels  claimed 
under  the  above  description  were  concerned. 
Witt  v.  Banner,  20  Q.  B.  D.  1 14  ;  57  L.  J.,  Q.  B. 
141  ;  58  L.  T.  34  ;  36  W.  R.  115— C.  A. 

Place  where  Goods  Situated.]  —  Under  the 
Bills  of  Sale  Act,  1882  (45  &  46  Vict  c.  43),  a 
bill  of  sale  is  not  void  for  omitting  to  specify 
the  house  or  place  at  which  the  goods  assigned 
are  situated.  Hill,  Ex  parte,  Lane,  In  re,  17 
Q.  B.  D.  74  ;  3  M.  B.  R.  148— D. 

After-acquired  Property.] — A  bill  of  sale  as- 
signed by  way  of  security  for  the  payment  of 
money,  chattels  specifically  described  in  the 
schedule  to  the  bill  of  sale,  "  together  with  all 
other  chattels  and  things  the  property  of  the 
mortgagor  now  in  and  about  the  premises  [de- 


241 


BILLS    OF    SALE— Statutory  Form. 


242 


I 


scribed],  and  also  all  chattels  and  things  which 
nay  at  any  time  daring  the  continuance  of  this 
security  be  in  or  about  the  same  or  any  other 
premises  of  the  mortgagor  (to  which  the  said 
chattels  or  things,  or  any  part  thereof,  may  have 
been  removed),  whether  brought  there  in  substi- 
tution for,  or  renewal  of,  or  in  addition  to  the 
chattels  and  things  hereby  assigned  by  way  of 
security  for  the  payment  of  the  "  money.  The 
grantor's  goods  assigned  by  the  bill  having  been 
setted  under  an  execution,  the  grantee  under 
the  bill  claimed  the  goods  specifically  described 
in  the  schedule,  and  abandoned  all  claim  to  the 
rest :— Held,  that  the  bill  was  not  "  in  accord- 
ance with  the  form  in  the  schedule  to  this  Act 
annexed  "  as  required  by  s.  9  of  the  Bills  of 
Sale  Act  (1878)  Amendment  Act,  1882,  and  was 
therefore  altogether  void  notwithstanding  ss.  4, 
5,  and  6.  Thomas  v.  Kelly,  13  App.  Cas.  606  ; 
58  L  J.,  Q.  B.  66  ;  60  L.  T.  114  ;  37  W.  R.  353 
-H.  L.  (E.). 

A  bill  of  sale  to  secure  an  advance  of  money 
is  void  as  not  being  in  accordance  with  the  form 
giren  in  the  schedule  to  the  Bills  of  Sale  (1878) 
Amendment  Act,  1882,  which  contains  a  clause 
purporting  to  assign  by  way  of  security  property 
which  during  the  continuance  of  the  security 
mar  be  brought  upon  the  premises  in  addition 
to  or  in  substitution  of  that  specifically  assigned 
by  it    Levy  ▼.  Polaek,  52  L.  T.  551— D. 

A  bill   of  sale  dealing  with   after-acquired 

roperty  is  not  by  force  ef  b.  4  void  altogether. 

t  is  good  against  the  grantor,  and  it  is  good 
against  the  execution  creditors  as  to  existing 
property,  although  void  against  them  as  to  after- 
acquired  property.  Roberts  v.  Roberts,  supra. 
But  see  preceding  cases. 

Fledge  of,  in  course  of  Business.]— By 

a  bill  of  sale  dated  February  3, 1881,  M.,  by  way 
of  security,  assigned  to  the  plaintiff  his  good- 
will and  interest  in  a  business  carried  on  by  him 
at  W.,and  all  the  existing  stock-in-trade,  and  all 
future  stock-in-trade  to  be  brought  on  to  the 
business  premises.  M.  pledged  with  the  defen- 
dant, a  pawnbroker,  stock-in-trade  which  had 
been  brought  on  to  the  premises  after  the  date 
of  the  bill  of  sale  ;  the  defendant  received  the 
pledge  in  the  ordinary  course  of  business  with- 
out notice,  actual  or  constructive,  of  the  bill  of 
ale.  In  an  action  for  detinue  or  conversion  of 
the  property  so  pledged  : — Held,  that  the  plain- 
tiff had  an  equitable  title  to  the  after-acquired 
property,  but  that  the  legal  property  was  in  M., 
from  whom  the  defendant  derived  a  legal  in- 
terest, which,  in  the  absence  of  notice  to  the 
defendant  of  the  prior  equity,  was  to  be  pre- 
ferred. Joseph  v.  Lyons,  54  L.  J.,  Q.  B.  1  ;  33 
W.  B.  145 ;  15  Q.  B.  D.  280  ;  51  L.  T.  740 
-C.  A.  See  also  HaJXas  v.  Robinson,  15  Q.  B.  D. 
288 ;  64  L.  J.,  Q.  B.  364  ;  33  W.  R.  246— C.  A. 

Chose  in  Action— Future  Book  Debts.] — 

A  bill  of  sale  assigned  (inter  alia)  all  the  book 
debts  due  and  owing,  or  which  might  during  the 
continuance  of  the  security  become  due  and 
owing  to  the  mortgagor : — Held,  that  the  as- 
signment of  future  book  debts,  though  not 
limited  to  book  debts  in  any  particular  business, 
was  BurBciently  defined,  and  passed  the  equitable 
interest  in  book  debts  incurred  after  the  assign- 
ment, whether  in  the  business  carried  on  by  the 
mortgagor  at  the  time  of  the  assignment  or  in 
any  other  business.    Belding  v.  Read  (3  H.  & 


C.  965),  and  D'Epineuil,  In  re  (20  Ch.  D.  758) 
overruled  ;  Clarke,  In  re,  Coombe  v.  Carter  (36 
Ch.  D.  348),  approved.  Tailby  v.  Official  Re- 
ceiver, 13  App.  Cas.  523  ;  58  L.  J.,  Q.  B.  75  ;  60 
L.  T.  162  ;  37  W.  R.  513— H.  L.  (E.) 

4.  THE  SUM  SECURED. 

Amount  payable  must  be  certain.]— A  bill  of 
sale  given  by  the  grantor,  "  in  consideration  of 
the  grantee  having  at  the  request  of  the  grantor 
become  guarantee,  and  having  signed  a  pro- 
missory note  for  the  payment  of  a  sum  of  45/. 
obtained  by  the  grantor  from  one  B.,  of  which 
322.  or  thereabouts  is  now  owing,"  and  further 
expressed  to  assign  the  chattels  "  by  way  of 
security  for  the  payment  of  any  moneys  the 
grantee  may  be  called  upon  to  pay  in  respect  of 
the  guarantee,  and  interest  thereon  at  the  rate 
of  five  per  cent,  per  annum,"  and  the  grantor 
further  agreeing  "  to  pay  the  principal  sum,  and 
any  further  sums,  together  with  interest  then 
due,  by  monthly  payments  of  21.  on  the  first  of 
every  month,"  is  void  under  s.  9  of  the  Bills  of 
Sale  Act  (1878)  Amendment  Act,  1882,  as  not 
being  in  accordance  with  the  form  prescribed  by 
the  act  by  reason  of  both  the  amount  payable 
by  the  grantee  under  the  guarantee  and  the 
time  when  such  amount  would  become  payable 
being  uncertain.  Hvahes  v.  Little,  18  Q.  B.  D. 
32  ;  56  L.  J.,  Q.  B.  96  ;  55  L.  T.  476  ;  35  W.  R. 
36— C.  A. 

Premiums,  Bent,  ftc,  added  to  Principal  if 
unpaid  by  Grantor.] — The  grantor  agreed  (inter 
alia)  to  insure  the  assigned  goods,  and  pay  all 
premiums,  and  that  upon  default  the  grantee 
might  do  so,  and  "  charge  the  costs  thereof,  with 
interest  at  the  rate  of  20  per  cent,  per  annum," 
to  the  grantor,  and  that  the  same  should  be 
considered  to  be  included  in  the  security,  and 
that  the  grantee  might  pay  all  rent,  rates,  and 
taxes  at  any  time  due  in  respect  of  the  messuage 
in  which  the  goods  might  be,  and  that  thereupon 
all  such  payments  made  by  the  grantee,  together 
with  interest  at  the  rate  of  20  per  cent,  per 
annum,  should  be  a  charge  on  the  goods,  which 
should  not  be  redeemed  until  full  payment  of 
all  such  sums  and  interest  : — Held,  on  the 
authority  of  Ex  parte  Stanford  (17  Q.  B.  D.  259), 
that  the  provisions  for  the  payment  of  rent, 
rates,  taxes  and  premiums  by  the  grantee,  and 
the  charge  of  the  sums  so  paid  by  him  upon  the 
goods,  did  not  rentier  the  bill  of  sale  void. 
Goldstrom  v.  Tallerman,  18  Q.B.  D.  1  ;  56  L.  J., 
Q.  B.  22  ;  55  L.  T.  866  ;  35  W.  R.  68— C.  A. 

Beiiure  on  Default] — By  a  bill  of  sale 

given  by  way  of  security  for  the  payment  of 
money,  the  mortgagor  covenanted  to  repay  the 
principal  sum  of  3001.,  with  interest  thereon  at 
the  rate  of  40  per  cent,  per  annum,  by  equal 
quarterly  payments  of  1802.  each,  on  certain 
dates  specified,  until  the  whole  of  the  said 
principal  money  and  interest  was  repaid,  and  it 
was  provided  that,  if  the  mortgagor  did  not  pay 
the  rent,  rates,  taxes  and  outgoings  of  the 
premises  on  which  the  goods  assigned  might  be 
within  seven  days  after  the  same  respectively 
became  payable,  the  mortgagees  might,  if  they 
thought  fit,  pay  such  rent,  rates,  taxes  and  out- 
goings, and  all  sums  of  money  so  paid  by  the 
mortgagees,  with  interest  thereon  at  the  same 
rate  as  aforesaid,  should  be  charged  on  the  goods 


243 


BILLS    OF    SALE— Statutory  Form. 


244 


assigned,  and  be  recoverable  in  the  Fame  manner 
as  the  principal  moneys  and  interest  secured  by 
the  bill  of  sale : — Held,  that  such  bill  of  sale 
was  void  as  not  being  in  accordance  with  the 
form  in  the  schedule  to  the  Bills  of  Sale  Act 
(1878)  Amendment  Act,  1882.  Bianrhiv.  Offord, 
17  Q.  B.  D.  484 ;  55  L.  J.,  Q.  B.  486— Bowen,  L.  J. 
By  a  bill  of  sale  given  to  secure  the  repayment 
of  an  advance  with  interest  thereon,  at  the  rate 
of  40  per  cent,  per  annum,  by  equal  monthly 
payments  of  41.  each  until  the  whole  of  the 
principal  money  and  interest  should  be  paid,  it 
was  provided  that,  if  the  mortgagor  did  not 
pay  the  rent,  rates,  taxes  and  outgoings  of  the 
premises  on  which  the  goods  assigned  might  be 
within  seven  days  after  the  same  should  respec- 
tively become  payable,  the  mortgagees  might,  if 
tbey  thought  fit,  pay  such  rent,  rates,  taxes  and 
outgoings,  and  all  sums  of  money  so  paid  by  the 
mortgagees,  together  with  interest  thereon  after 
the  rate  aforesaid,  should  be  charged  on  the  goods 
assigned,  and  should  be  recoverable  in  the  same 
manner  as  the  principal  moneys  and  interest 
secured  by  the  bill  of  sale ;  it  was  further  pro- 
vided that  the  goods  assigned  should  be  liable  to 
seizure  for  any  of  the  causes  specified  in  s.  7  of 
the  Bills  of  Sale  Act  (1878)  Amendment  Act, 
1882,  but  should  not  be  liable  to  seizure  for  any 
other  cause  : — Held,  that  such  bill  of  sale  was 
void  as  not  being  in  accordance  with  the  form 
in  the  schedule  to  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882,  on  the  ground  that  it 
contained  terms  importing  a  power  of  seizure  in 
contravention  of  the  provisions  of  s.  7  of  the 
Act  Bianchi  v.  Offord  (17  Q.  B.  D.  484)  fol- 
lowed ;  Stanford,  Ex  parte,  Barber,  In  re  (17 
Q.  B.  D.  259),  and  Goldstrom  v.  Tallerman  (18 
Q.  B.  D.  1),  distinguished.  Real  and  Personal 
Advance  Company  v.  Clears,  20  Q.  B.  D.  304  ; 
67  L.  J.,  Q.  B.  164  ;  58  L.  T.  610 ;  36  W.  B.  256 
— C.A. 

Whole  amount  for  Interest  due  on  non-payment 
of  Instalment]— By  a  bill  of  sale  the  grantor 
assigned  to  the  grantee  the  goods  enumerated  in 
the  schedule  thereto,  by  way  of  security  for  the 
payment  of  300/.  money  advanced,  and*  180/.  for 
agreed  capitalized  interest  thereon  at  the  rate  of 
60  per  cent,  per  annum,  making  together  the 
sum  of  480/ ,  by  instalments  of  a  certain  amount, 
at  certain  specified'  dates.  The  grantor  also 
covenanted,  amongst  other  things,  that  she  would 
deliver  to  the  grantee  the  receipts  for  rent,  rates 
and  taxes,  in  respect  of  the  premises  on  which 
the  goods  assigned  might  be,  when  demanded, 
"  in  writing  or  otherwise ;"  and  also  that  she 
would  not  make  any  assignment  for  the  benefit 
of  creditors,  or  file  a  petition  for  liquidation  or 
composition  with  creditors,  or  do  or  suffer  any- 
thing whereby  she  should  render  herself  liable  to 
be  made  or  become  a  bankrupt.  It  was  also  by 
the  said  bill  of  sale  agreed,  that  if  the  grantor 
should  break  any  of  the  covenants,  all  the  moneys 
thereby  secured  should  immediately  become  due 
and  be  forthwith  paid  to  the  grantee,  and  it  was 
provided  that  the  chattels  assigned  should  not  be 
liable  to  seizure  for  any  other  cause  than  those 
specified  in  the  Bills  of  Sale  Act  (1878)  Amend- 
ment Act,  1882  : — Held,  that  the  bill  of  sale  was 
void,  as  not  made  in  the  form  given  in  the 
schedule.  Davis  v.  Burton,  11  Q.  B.  D.  537  ;  52 
L.  J.,  Q.  B.  636  ;  32  W.  R.  423— C.  A.  Affirming, 
48  L.  T.  433  ;  47  J.  P.  392— D.  See  also  Myers 
v.  Elliott,  infra. 


A  bill  of  sale  was  given  on  the  19th  June, 
1885,  to  secure  the  repayment  of  a  principal 
sum  of  80/.  and  interest  at  the  rate  of  27  per 
cent  per   annum,  and    it  provided   that  the 
grantor  will  "duly  pay  to  the   grantees  the 
principal  sum  aforesaid,  together  with  the  inte- 
rest due,  by  eight  equal  payments  of  13/.  on  the 
19th  September  next,  and  on  the  19th  day  in 
every  succeeding  third  month,  and  that  in  case 
default  is  made  in  any  one  of  the  said  instal- 
ments, then  he  will  immediately  thereafter  pay 
to  the  grantees  the  whole  amount  remaining 
unpaid  upon  this  security."    This  sum  of  13/. 
was  arrived  at  by  lumping  together  the  principal 
and  interest,  and  making  the  whole  repayable 
over  a  certain  number  of  months  by  instalments 
amounting  in  all  to  104/.,  and  as  a  further  secu- 
rity a  promissory  note  for  104/.  was  given  by  the 
grantor  to  the  grantees : — Held,  that  the  bill  of 
sale  was  void  on  the  ground  that  it  made  interest 
payable  on  a  day  certain  irrespective  of  the  period 
at  which  the  interest  would  become  due  accord- 
ing to  the  ordinary  course  of  events,  and  that  the 
grantor  had  a  cause  of  action  for  the  seizure  of 
the  goods  under  the  bill  of  sale.    Roe  v.  Mutual 
Loan  Fund,  56  L.  T.  631— Pollock,  B. 

In  default  Principal  and  Interest  due  at  one* 
Payable.] — A  bill  of  sale  of  personal  chattels 
granted  in  1884  to  secure  80/.  stated  the  stipu- 
lated times  or  time  of  payment  of  principal  and 
interest  as  "  by  equal  monthly  payments  of  8/., 
the  first  payment  to  be  made  on  the  1st  of 
March  next,  but  if  default  be  made  in  any  pay- 
ment when  it  becomes  due  then  the  whole  of  the 
principal  unpaid  and  the  interest  then  due  shall 
be  at  once  payable  "  : — Held,  that  the  bill  of 
sale  was  in  accordance  with  the  form  in  the 
Bills  of  Sale  Act  (1878)  Amendment  Act,  1882. 
Lumley  v.  Simmons,  34  Ch.  D.  698  ;  56  L.  J.,  Ch. 
329  ;  56  L.  T.  134  ;  35  W.  R.  422— C.  A. 

Interest— Bonne — Lump  Sum.] — A  bill  of  sale, 
given  to  secure  repayment  of  money,  provided 
that  the  sum  advanced,  together  with  15/.  for 
agreed  interest  and  bonus  thereon,  making  in 
all  130/.,  should  be  paid  by  monthly  instalments 
of  10/.  16*.  &d. ;  that  the  grantee  might  seize  the 
goods  assigned  if  the  grantor  made  default  in 
payment  of  the  sum  thereby  secured  at  the  time 
therein  provided  for  payment,  or  in  the  perform- 
ance of  any  of  the  covenants  therein  contained 
and  necessary  for  maintaining  the  security ;  and 
that,  if  the  grantee  seized  the  goods  in  conse- 
quence of  a  breach  of  any  of  the  covenants 
therein  contained,  he  might  sell  the  same  or  any 
part  thereof  at  the  expiration  of  five  clear  days 
from  the  day  of  seizure  : — Held,  that  the  bill  of 
sale  was  void  as  substantially  deviating  from 
the  form  given  in  the  schedule  to  the  Bills  of 
Sale  Act  (1878)  Amendment  Act,  1882,  first, 
because  it  would  entitle  the  grantee  to  seize  and 
sell  the  goods  for  the  whole  1307.  secured  on 
failure  in  payment  of  any  one  monthly  instal- 
ment ;  secondly,  because,  the  bill  of  sale  not 
stating  how  much  of  the  15/.  was  bonus  and 
how  much  interest,  it  was  impossible  to  tell 
from  its  terms  what  was  to  be  paid  for  interest 
Myers  v.  Elliot r.  16  Q.  B.  D.  526  ;  55  L.  J.,  Q.  B. 
23*3  ;  54  L.  T.  552  ;  34  W.  R.  338— C.  A. 

Semble,  that,  even  if  the  whole  15/.  were  to- 
be  regarded  as  interest,  the  bill  of  sale  was  void 
because  it  did  not  show  the  rate  of  interest  to 
be   paid  as  required   by  the   statutory  form. 


245 


BILLS    OF    SALE— Statutory  Form. 


246 


* 

Tktrpt  r.  Cregeen,  infra,  questioned,  lb.  See 
abo  /*««*,  £x  parte,  Williams f  In  re,  post, 
wl.247. 

In  a  bill  of  sale,  given  by  way  of  security  for 
30/.  advanced  and  5/.  interest  thereon,  the 
tnntor  agreed  to  pay  the  principal  sum,  to- 
gether with  the  interest  then  due,  oy  five  equal 
monthly  payments  of  11.  each.  There  was  a 
power  to  seize  and  sell  the  goods  (inter  alia)  on 
default  in  payment  of  the  sum  secured  at  the 
time  provided  for  payment : — Held,  that  the 
interest  was  properly  stated  in  accordance  with 
the  form  in  the  schedule  to  the  Bills  of  Sale  Act, 
1882, and  that  the  bill  of  sale  was  valid.  Thorpe 
t.  Cregeen,  55  L.  J.,  Q.  B.  80  ;  33  W.  B.  844— D. 
But  see  preceding  case. 

—  Bate  per  Month.]— A  bill  of  sale  of  per- 
sonal chattels  granted  in  1884  to  secure  80/. 
dated  the  rate  of  interest  as  1*.  hd.  in  the 
pound  per  month  : — Held,  that  the  bill  of  sale 
wis  in  accordance  with  the  form  in  the  schedule 
to  the  Bills  of  Sale  Act,  1878,  Amendment  Act, 
1882.    Lumley  r.  Simmons,  supra. 

—  Upon  Interest — Unequal  Payments.] — 
By  a  bill  of  sale  goods  were  assigned  as  security 
for  the  repayment  of  500?.  and  interest  thereon 
at  the  rate  of  60/.  per  cent,  per  annum,  and  the 
grantor  agreed  to  pay  "  the  principal  sum  afore- 
said, together  with  the  interest  then  due  by 
twelve  equal  monthly  payments  of  ill.  13*.  4d., 
until  the  whole  of  the  said  sum  and  interest 
shall  be  fully  paid,"  and  that  in  default  of  pay- 
ment of  any  "  instalment "  then  the  grantor 
would  pay  interest  thereon  at  the  rate  aforesaid 
from  the  date  when  such  instalment  should 
become  due  until  full  payment  thereof : — Held, 
that  npon  the  true  construction  of  the  bill  of 
sale  interest  upon  interest  was  not  reserved,  but 
that  the  word  "instalment"  referred  only  to  the 
monthly  payments  of  principal  : — Held,  also, 
that  the  form  of  bill  of  sale  in  the  schedule  to 
the  Buls  of  Sale  Act,  1882,  does  not  require  that 
the  payments  of  interest  should  be  always  of 
equal  amount,  and  that  therefore  the  bill  of  sale 
vis  not  void  on  the  ground  that  the  payments 
of  interest  would  vary  in  amount  from  time  to 
time.  Qoldstrom  v.  Tallerman,  18  Q.  B.  D.  1 ;  56 
i.  J..  Q.  B.  22  ;  55  L.  T.  866 ;  35  W.  B.  68— C.  A. 

5.    POWER  OF  SEIZUBE. 

Largs  Bulbar  of  grantees    Different  Debts.] 

—A  bill  of  sale  which  is  in  its  terms  so  com- 
plicated as  to  substantially  vary  from  the  form 
at  the  schedule  to  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882,  is  void  by  s.  9  of  that 
■ct,  notwithstanding  it  may  not  contravene  any 
of  the  other  sections.  Therefore  a  bill  of  sale 
made  between  the  grantor  and  four  sets  of 
mortgagees  to  secure  different  debts  owing  to 
tteh  respectively  at  different  times,  with  a 
declaration  that  in  case  of  default  in  payment  of 
uy  sum  thereby  secured  or  of  any  other  default 
mentioned  as  a  cause  of  seizure  in  s.  7  of  that 
set.  it  should  be  lawful  for  the  mortgagees  to 
wie  and  sell  the  goods  assigned : — Held,  to  be 
aot  in  conformity  with  the  form  in  the  schedule, 
and  void.  Melville  v.  Stringer,  13  Q.  B.  D. 
»2;  53  L.  JM  Q.  B.  482  ;  50  L.  T.  774  ;  32 
W.  R.  890— C.  A. 

0i  Bankruptey.] — A  bill  of  sale  empowered 


the  grantee  to  seize  the  property  in  case  (inter 
alia')  the  grantor  "  shall  ao  or  suffer  any  matter 
or  thing  whereby  he  shall  become  a  bankrupt  "  : 
— Held,  that  this  event  was  in  substance  equiva- 
lent to  the  event  "  if  the  grantor  shall  become  a 
bankrupt "  in  which,  by  s.  7  of  the  Bills  of  Sale 
Act,  1882,  a  grantee  is  permitted  to  seize  under 
a  bill  of  sale,  and  that  consequently  the  bill  of 
sale  was  not  void  under  s.  9.  Allam,  Ex  parte, 
Munday,  In,  re,  14  Q.  B.  D.  43  ;  33  W.  R. 
231— D. 

If  Grantor  take  benefit  of  "  any  Bankruptcy 

Act."] — A  bill  of  sale  contained  a  proviso  giving 
power  to  the  grantees  to  seize  the  chattels 
granted  by  the  instrument  if  the  "  mortgagors 
should  take  the  benefit  of  any  Bankruptcy  Act." 
The  Bankruptcy  Act,  1883,  enables  a  person 
not  only  to  become  a  bankrupt  but  to  effect  a 
composition  with  his  creditors : — Held,  that  the 
bill  of  sale  was  bad,  as  it  conferred  upon  the 
grantees  the  power  to  seize  on  the  grantors 
taking  the  benefit  of  any  Bankruptcy  Act, 
which  was  a  larger  power  than  the  statutory 
power  to  seize  conferred  by  the  Bills  of  Sale 
Act,  1882,  which  was  limited  to  the  event  of  a 
grantor  becoming  a  bankrupt.  Oilroy  v.  Bowey, 
59  L.  T.  223— D. 

Power  to  break  open  Doors.] — A  bill  of  sale 
contained  a  power,  in  case  the  grantee  became 
entitled  to  seize  the  chattels,  to  break  open  doors 
and  windows  in  order  to  obtain  admission  : — 
Held,  that  this  did  not  constitute  a  departure 
from  the  form  in  the  Bills  of  Sale  Act,  1882, 
and  that  the  bill  of  sale  was  valid.  Morritt, 
In  re  (infra),  followed.     Lumley  v.  Simmons, 

34  Ch.  D.  698  ;  56  L.  J.,  Ch.  329  ;  56  L.  T.  134  ; 

35  W.  R.  422— C.  A. 

A  bill  of  sale  of  personal  chattels,  given 
as  security  for  money  lent,  contained  a  provision 
"  that  the  power  of  Bale  conferred  on  the  mort- 
gagees by  the  Conveyancing  Act,  1881,  shall 
be  exercisable  by  them  in  every  respect  as 
the  20th  section  of  the  said  act  had  not  been 
enacted."  An  express  power  was  given  to  seize 
the  chattels  for  any  of  the  causes  specified  in  s.  7 
of  the  Bills  of  Sale  Act,  1882,  but  for  no  other 
cause,  and  for  that  purpose  to  break  open  the 
doors  and  windows  of  the  premises  where  the 
chattels  might  be : — Held  (Fry,  L.  J.,  dissent- 
ing), that  the  bill  of  sale  was  not  made  void  by 
s.  9  of  the  Bills  of  Sale  Act,  1882.  Official 
Receiver,  Eso  parte,  Morritt,  In  re,  18  Q.  B.  D. 
222  ;  56  L.  J.,  Q.  B.  139  ;  56  L.  T.  42  ;  35  W.  R. 
277— C.  A. 

In  Unauthorised  Event— Effect  of  Beferenoe 
to  Statute.] — Semble,  that  if  a  bill  of  sale  con- 
tains a  power  to  seize  in  an  event  not  authorized 
by  the  act,  the  insertion  of  a  proviso  that  the 
goods  shall  not  be  liable  to  seizure  for  any  cause 
other  than  those  specified  in  s.  7  of  the  act,  will 
not  render  the  deed  valid.  Furber  v.  Cobb,  18 
Q.  B.  D.  494  ;  56  L.  J.,  Q.  B.  273  ;  56  L.  T.  689  \ 
35  W.  R.  398— C.  A. 

The  grantor  of  a  bill  of  sale  agreed  therein 
with  the  grantee  that  during  the  continuance 
of  the  security  he  would,  on  demand,  produce  to 
him  his  last  receipts  for  rent,  rates,  and  taxes, 
and  would  keep  the  assigned  chattels  insured, 
and,  on  demand,  produce  to  the  grantee  the 
current  premium  for  such  insurance,  and  that, 
in  case  the  borrower  should  at  any  time  make 


247 


BILLS    OF    SALE— Statutory  Form. 


246 


default  in  performance  of  any  of  the  covenants, 
or  should  become  bankrupt,  or  enter  into 
liquidation  for  the  benefit  of,  or  compound 
with,  his  creditors,  the  principal  and  interest 
should  become  immediately  payable  without  the 
necessity  for  any  demand  of  payment,  provided 
that  the  chattels  assigned  should  not  be  liable  to 
seizure  for  any  cause  other  than  those  specified 
in  s.  7  of  the  Bills  of  Sale  Act  (1878)  Amend- 
ment Act,  1882  : — Held,  that  the  bill  of  sale  was 
not  in  accordance  with  the  form  in  the  schedule 
to  the  act  annexed,  and  was  therefore  void 
under  the  9th  section.  Barr  v.  Kingsford,  56 
L.  T.  861— D. 

By  a  bill  of  sale  executed  two  days  before  his 
bankruptcy,  A.  (the  grantor),  in  consideration  of 
SOL  paid  to  him  by  B.,  and  also  in  consideration 
of  101.  charged  by  B.  by  way  of  bonus,  assigned 
chattels  to  B.  by  way  of  mortgage  for  payment 
of  401.  A.  thereby  agreed  that  he  would  "  forth- 
with "  pay  to  B.  the  401.,  together  with  interest 
and  costs  then  due  thereon,  and  also  pay  the  rent, 
rates  and  taxes,  and  the  premiums  for  insurance, 
and  would  "forthwith  after  every  payment 
produce  and  deliver  to  B.  the  receipts  for  the 
same.  On  default  in  payment  of  the  sums  thereby 
secured,  "  or  if  he  should  do  or  suffer  anything 
whereby  he  should  render  himself  liable  to  be- 
come a  bankrupt,  or  remove,  or  suffer  the  chattels 
to  be  removed  from  the  premises,  or  if  execution 
should  be  or  should  have  been  levied  against  the 
goods  of  A.,1'  or  if  he  should  make  default  in  the 
performance  of  any  of  the  covenants,  or  commit 
any  breach  thereof,  it  should  be  lawful  for  B. 
"  forthwith  or  when  and  as  soon  as  he  should 
think  fit "  to  enter  and  take  possession,  and  after 
taking  possession  to  relinquish  and  again  take 
possession  as  often  and  whenever  he  should  think 
fit.  All  expenses  of  entry  and  seizure  (including 
a  fee  of  5  per  cent,  on  the  whole  amount  then 
due  and  secured  by  the  bill  of  sale),  and  in  the 
exercise  by  B.  of  any  of  the  powers,  rights  and 
remedies  therein  contained,  were  to  be  added 
thereto  and  to  form  part  of  the  sum  secured,  as 
if  such  costs,  charges,  payments,  damages  and 
expenses  had  originally  constituted  an  integral 
part  of  the  advance.  It  was  also  provided  that 
further  advances,  not  exceeding  100/.,  might  be 
made  and  added  to  the  security  ;  and  it  was 
finally  provided  (in  the  terms  of  the  form  in  the 
schedule  to  the  Bills  of  Sale  Act,  1882),  that  the 
chattels  thereby  assigned  should  not  be  liable  to 
seizure  or  to  be  taken  possession  of  by  B.,  for  any 
cause  other  than  those  expressed  in  s.  7  of  the 
act : — Held,  having  regard  to  the  provision  for 
bonus  in  addition  to  the  sum  actually  paid  by  the 
grantee,  and  especially  to  the  power  to  seize  in 
events  other  than  those  mentioned  in  8.  7,  that 
this  bill  of  sale  was  void  as  being  plainly  in  con- 
travention of  the  provisions  of  the  Act  of  1882, 
and  the  form  in  the  schedule  thereto  ;  and  that 
the  defects  were  not  cured  by  the  final  proviso. 
Peace,  Ex  parte,  Williams,  In  re,  25  Ch.  D.  656  ; 
53  L.  J.,  Ch.  500  ;  49  L.  T.  475  ;  32  W.  R.  187 
■^— C  J.  B, 

Actions  against  Grantee  for  Soiling.]    See 
post,  col.  260. 

6.    POWER  OF  SALE. 

Whether  to  be  Implied — Conveyancing  Act.] 

— A  mortgagee  of  personal  chattels,  of  which  he 
has  taken  possession,  has,  without  any  express 


power  in  the  mortgage  deed,  upon  default  in 
payment  of  the  mortgage  money  by  the  mort- 
gagor, and  after  reasonable  notice  to  him.  power 
to  sell  the  chattels.  Consequently,  if  a  bill  of 
sale  to  which  the  Bills  of  Sale  Act,  1882,  is 
applicable,  contains  an  express  power  for  the 
grantee  to  seize  the  goods  (such  a  power  being 
authorised  by  that  act  as  a  provision  "  for  the 
maintenance  of  the  security  "),  the  grantee,  when 
he  has  seized  the  goods,  has  power  to  sell  them 
after  the  expiration  of  the  five  days  fixed  by 
ss.  7  and  13  of  that  act.  In  such  a  case,  there- 
fore, the  power  of  sale  conferred  by  s.  19  of  the 
Conveyancing  Act,  1881,  is  not  required,  and  is 
not  incorporated,  and  a  proviso  in  the  deed 
excluding  the  operation  of  s.  20  of  that  act 
is  merely  superfluous,  and  does  not  invalidate 
the  deed  under  s.  9  of  the  act  of  1882.  If  a 
bill  of  pale  subject  to  the  act  of  1882  contains 
provisions  relating  to  the  seizure  of  the  goods, 
which  are  not  contrary  to  any  express  provision 
of  that  act,  though  they  may  be  in  part  void 
under  the  general  law,  it  is  not  thereby 
rendered  invalid.  Official  Receiver,  Ex  parte, 
Morritt,  In  re,  ante,  col.  246 — Per  Cotton,  Land- 
ley,  and  Bowen,  L.JJ. 

The  enactment  by  the  act  of  1882  of  a  statu- 
tory form  of  bill  of  sale  negatives,  and  is  incon- 
sistent with,  the  incorporation  in  a  bill  of  sale 
subject  to  that  act  of  the  power  of  sale  conferred 
by  the  Conveyancing  Act,  1881,  and  the  act  of 
1882  gives  by  implication  to  the  grantee  under 
such  a  bill  of  sale  power  to  sell  the  goods  at  the 
expiration  of  five  days  after  they  have  been  seized. 
And,  even  if  a  power  of  sale  is  not  given  by  im- 
plication, a  power  to  seize  the  goods  may  be 
lawfully  inserted  in  the  deed,  and  the  grantee, 
having  seized  the  goods,  can  sell  them  as 
assignee  of  them,  and,  if  the  grantor  does  not 
redeem  them  within  five  days,  his  right  of 
redemption  will  be  barred.  lb. —  Per  Lord 
Esher,  M.R.,  and  Lopes,  L.J. 

A  mortgagee  (as  distinguished  from  a  pledgee) 
of  chattels  has  in  the  absence  of  statute,  no  im- 
plied power  to  sell  them  on  default  by  the  mort- 
gagor, even  if  he  has  taken  possession  of  them. 
But,  at  any  rate,  the  Bills  of  Sale  Act,  1882, 
implies  that  the  power  of  sale  conferred  by 
s.  19  of  the  Conveyancing  Act  is,  with  the 
fetters  on  its  exercise  imposed  by  s.  20  of  that 
act,  imported  into  the  scheduled  form  of  bill  of 
sale,  and  an  attempt  to  exclude  the  operation  of 
s.  20  will  render  a  bill  of  sale  void  under  s.  9  of 
the  act  of  1882.     Tb.— Per  Fry,  L.J. 

A  bill  of  sale,  given  as  security  for  money,  was 
in  the  form  set  forth  in  the  schedule  to  the  Bills 
of  Sale  Act,  1882,  except  that  the  mortgage  debt 
(instead  of  being  made  payable  by  instalments) 
was  made  payable,  with  interest,  in  one  sum,  t 
month  after  the  date  of  the  deed,  and  there  was 
a  covenant  by  the  grantor,  in  case  the  principal 
money  should  not  be  then  paid,  to  pay  interest 
half-yearly  on  the  principal  money  remaining 
unpaid.  There  was  also  a  covenant  by  the 
grantor  to  insure  the  chattels  comprised  in  the 
deed,  and  to  produce  the  receipts  for  premiums 
to  the  grantee : — Held,  that  the  bill  of  sale  was 
valid,  and  that,  interest  being  in  arrear  for  more 
than  two  months,  the  grantee  had  power  to  seize 
the  chattels,  and  to  sell  them  after  the  expira- 
tion of  five  days  from  the  seizure.  Watkint  v. 
Beam,  18  Q.  B.  D.  386  ;  56  L.  J.,  Q.  B.  200 ;  56 
L.  T.  177  ;  35  W.  R.  813— C.  A. 

The  power  of  sale  was  conferred  by  s.  19  of  the 


249 


BILLS    OF    SALE— Statutory  Form. 


250 


Conveyancing  Act,  1881,  subject  to  the  restric- 
tions imposed  by  s.  20  of  that  act  and  by  s.  13 
of  the  Bills  of  Sale  Act  of  1882.  lb.— Per 
Bowen  and  Fry,  L.JJ. 

The  Conreyancing  Act  did  not  apply,  bat  there 
lis  an  implied  power  to  seize  and  sell  under  the 
act  of  1882.    lb.— Per  Lord  Esher,  M.R. 

The  provisions  of  the  Conveyancing  Act,  1881, 
with  regard  to  power  of  sale  are  not  incorporated 
by  the  statutory  form  given  by  the  Bills  of  Sale 
Act,  1882.  Calvert  v.  Thomas,  19  Q.  B.  D.  204  ; 
56  L.  J.t  Q.  B.  470  ;  57  L.  T.  441  ;  35  W.  R.  616 
-C.A. 

Ismliad  Trust  of  Purchase  -  Moneys.] — The 
power  to  sell  the  chattels  assigned  by  a  bill  of 
sale  carries  with  it  implied  trusts  with  respect 
to  the  moneys  produced  by  the  sale.  Where  the 
hill  of  sale  contained  an  express  declaration  that 
the  grantee  should  retain  out  of  the  sale  moneys 
the  principal  sum,  or  so  much  thereof  as  might 
lor  the  time  being  remain  unpaid,  and  the  in- 
terest then  due,  together  with  all  costs,  charges, 
payments,  and  expenses  incurred  or  sustained  in 
and  about  entering  the  grantor's  premises  and 
in  discharging  any  distress,  execution,  or  other 
incumbrance  on  the  chattels  assigned,  and 
seizing,  taking,  retaining,  and  keeping  posses- 
son  thereof,  and  in  and  about  the  carriage, 
removal,  warehousing,  valuing,  or  sale  thereof 
(mdoding  the  cost  of  inventories,  catalogues, 
or  advertising)  : — Held,  that  the  trusts  declared 
of  the  sale  moneys  were  such  as  might  reason- 
ably and  properly  be  inserted,  and  did  not  differ 
from  the  trusts  that  would  have  been  implied 
if  there  had  been  no  such  express  declaration. 
BawliM*,  Ex  parte,  Cleaver,  In  re,  18  Q.  B.  D. 
489 ;  56  L.  J.,  Q.  B.  197 ;  56  L.  T.  593  ;  35  W.  R. 
81-C.A. 

Provision  excusing  Purchaser  from  Inquiry 
ftt  to  Default.] — A  bill  of  sale  which  contains 
a  provision 'that  a  purchaser  on  a  sale  after 
default  in  payment  of  an  instalment  due 
under  the  bill  of  sale,  shall  not  be  bound  to 
inquire  whether  any  such  default  has  been 
nadfj  is  void,  as  substantially  deviating  from 
the  form  given  in  the  schedule  to  the  Bills  of 
Sale  Act  (1878)  Amendment  Act,  1882  (45  &  46 
Vict,  c  43),  s.  9.  Blaiberg  v.  Parsons,  or  Par- 
***  v.  Hargreaves,  17  Q.  B.  D.  633;  55  L.  J., 
Q.  B.  408  ;  34  W.  R.  717— D. 

S.P.  Blaiberg  v.  Beckett,  18  Q.  B.  D.  96  ;  56 
L  J,  Q.  B.  35  ;  55  L.  T.  876  ;  35  W.  R.  34—0.  A. 


for.] — A  bill  of  sale  giving  power  to  the 
pantee  to  sell  on  default  in  payment  on  demand 
without  waiting  for  five  clear  days  as  required 
br  ft.  13  of  the  Bills  of  Sale  Act,  1882,  is  invalid. 
UHkerington  v.  Groome,  13  Q.  B.  D.  789 ;  53  L. 
J,  Q.  B.  577 ;  51  L.  T.  412  ;  33  W.  R.  103— 
C.A. 


7.  MAINTENANCE  OF  THE  SECURITY. 

Generally— Effect  of  Agreement  as  to.]— A 
covenant  not  to  remove  the  chattels  without 
the  consent  of  the  grantees,  is  necessary  for 
maintaining  the  security ;  and,  semble,  that  an 
unqualified  covenant  to  produce  the  receipts  for 
rent,  rates,  and  taxes  on  demand  is  also  neces- 
■rjr.    The  expression  "necessary  for  maintain- 


ing the  security,"  means,  not  the  maintenance 
of  a  sufficient  security  less  than  that  agreed  to 
be  given,  but  the  maintenance  of  the  security 
created  by  the  bill  of  sale,  and  the  security  is 
maintained  only  when  the  subject-matter  of  the 
charge,  and  the  grantee's  title  to  it,  are  preserved 
in  as  good  plight  and  condition  as  at  the  date  of 
the  bill  of  sale.  If  a  stipulation  is  not  necessary 
for  the  maintenance  of  the  security,  it  cannot 
be  made  so  by  the  agreement  of  the  parties. 
Ihirber  v.  Cobb,  infra. — Per  Sir  James  Hannen. 

Chattels  wearing  out — Replacing  by  others.  ] 
— A  bill  of  sale  of  leasehold  furniture  con- 
tained an  agreement  that  the  grantor  should 
replace  any  chattels  and  things  that  should  be 
worn  out  by  other  articles  of  equal  value,  a 
clause  permitting  seizure  and  sale  in  certain 
events,  and  an  agreement  that  the  grantee  after 
the  sale  might  retain  out  of  the  sale  moneys  the 
cost  of  (among  other  things)  discharging  any 
distress,  execution,  or  other  encumbrance  on  the 
chattels,  and  of  their  removal,  warehousing,  valu- 
ing or  sale.  The  form  in  the  schedule  to  the  Act 
permits  the  introduction  of  terms  as  to  insurance, 
payment  of  rent,  or  otherwise,  which  the  parties 
may  agree  to  for  the  maintenance  or  defeasance 
of  the  security  : — Held,  that  the  expression 
"  defeasance  "  is  large  enough  to  include  realiza- 
tion ;  that  the  stipulations  in  the  deed  related 
either  to  the  maintenance  or  the  realization  of 
the  security ;  and  that  the  deed  was  substan- 
tially in  conformity  with  the  statutory  form, 
and  was  valid.  Consolidated  Credit  Corporation 
v.  Gosney,  16  Q.  B.  D.  24  ;  55  L.  J.,  Q.  B.  61 ; 
54  L.  T.  21  ;  34  W.  R.  106— D. 

A  bill  of  sale,  given  as  security  for  money, 
assigned  to  the  grantees,  the  chattels  specifically 
described  in  a  schedule,  and  which  were  stated 
to  be  then  in  a  certain  house.  The  grantor  cove- 
nanted (inter  alia)  that  he  would  not  remove 
the  chattels  from  the  premises  where  they  then 
were,  without  the  previous  consent  in  writing  of 
the  grantees ;  that  he  would  not  permit  the 
chattels,  or  any  part  thereof,  to  be  destroyed  or 
injured,  or  to  deteriorate  in  a  greater  degree 
than  they  would  deteriorate  by  reasonable  use 
and  wear  thereof,  and  would,  whenever  any  of 
the  chattels  were  destroyed,  injured,  or  deterio- 
rated, forthwith  replace,  repair,  and  make  good 
the  same ;  and  that  he  would,  on  demand  in 
writing,  produce  to  the  grantees  his  last  receipt 
or  receipts  for  the  rents,  rates,  and  taxes  in 
respect  of  the  premises  where  the  chattels  then 
were.  And  it  was  agreed  that,  in  case  default 
should  be  made  by  the  grantor  (inter  alia)  in 
the  performance  of  any  of  the  covenants  therein- 
before contained  on  his  part,  all  of  which  cove- 
nants were  thereby  declared  and  agreed  to  be 
necessary  for  the  maintenance  of  the  security 
thereby  created,  it  should  be  lawful  for  the 
grantees  after  any  such  default  without  notice, 
immediately  or  whenever  they  Bhould  think  fit, 
to  seize  and  take  possession  of  the  chattels,  and 
after  the  expiration  of  five  clear  days,  to  sell  the 
same.  At  the  end  of  the  deed  was  a  proviso 
that  the  chattels  should  not  be  liable  to  seizure 
or  to  be  taken  possession  of  by  the  grantees  for 
any  cause  other  than  those  specified  in  s.  7  of 
the  Bills  of  Sale  Act,  1882  :— Held,  that  the 
covenants  to  replace  and  repair  articles 
destroyed,  injured,  or  deteriorated,  was 
"  necessary  for  maintaining  the  security,"  and 
that  the  bill  of  sale  was  not  void  because  power 


1 


251 


BILLS    OF    SALE— Statutory  Form. 


252 


was  given  to  seize  on  a  breach  of  that  covenant. 
Furber  v.  Cobb,  18  Q.  B.  D.  494  ;  56  L.  J.,  Q.  B. 
273 ;  56  L.  T.  689  ;  35  W.  R.  398— C.  A 


Grantor  not  to  Permit  to  Suffer  himself  to  he 
sued.] — By  a  bill  of  sale  the  mortgagor  agreed  : 
(1)  Not  to  permit  or  suffer  himself  to  be  sued  for 
any  debt  or  debts  justly  due  or  owing,  &c.  (2) 
On  demand  in  writing  to  produce  and  show  to 
the  mortgagee  the  receipts  for  the  rent,  rates  and 
taxes.  (3)  To  insure  the  property  assigned  in 
offices  in  London  or  Westminster  to  be  approved 
by  the  mortgagee,  in  default  whereof  it  should 
be  lawful  for  the  mortgagee  to  insure  and  add 
the  premiums  paid  by  him  to  the  security.  The 
bill  of  sale  empowered  the  mortgagee,  on  breach 
of  any  of  the  mortgagor's  covenants,  to  seize, 
&c.,  and  also  contained  a  clause  to  the  effect  that 
the  property  should  not  be  liable  to  seizure  for 
any  cause  other  than  those  specified  in  s.  7  of  the 
Bills  of  Sale  Act  (1878)  Amendment  Act,  1882  : 
— Held,  that  the  bill  of  sale  was  not  void  as  fail- 
ing to  comply  with  the  form  required  by  the 
Bills  of  Sale  Act,  1882.  Furber  v.  A brey,  1  C.  k 
£.  186— Williams,  J.    Sed  quaere. 

Insurance  Premiums — Production  of  Beeeipts.  ] 

— An  agreement  in  a  bill  of  sale  of  chattels,  that 
the  grantor  will  pay  all  premiums  necessary  for 
insuring  and  keeping  insured  the  chattels 
against  loss  by  fire,  and  forthwith  after  every 
payment  in  respect  of  such  insurance  produce, 
and,  if  required,  deliver  to  the  grantee,  the 
receipt  or  voucher  for  the  same,  is  not  un- 
necessary for  the  maintenance  of  the  security, 
and  does  not  contravene  the  Bills  of  Sale  Act, 
(1878)  Amendment  Act,  1882  (45  &  46  Vict.  c. 
43).  Hammond  v.  Hocking,  12  Q.  B.  D.  291  ; 
63  L.  J.,  Q.  B.  205  ;  50  L.  T.  267— D. 

Covenant  for  farther  Assurance.]— A  cove- 
nant that  the  grantor,  and  all  persons  claiming 
through  or  under  him,  will  at  all  times  at  his 
cost  execute  and  do  all  such  assurances  and 
things  for  the  further  and  better  assuring  all  or 
any  of  the  chattels  assigned  to  the  grantee,  and 
enabling  him  to  obtain  possession  of  the  same,  as 
may  by  him  be  lawfully  required,  is  a  provision 
"  for  the  maintenance  of  the  security,"  the  inser- 
tion of  which  in  a  bill  of  sale  is  permitted  by  the 
Act  of  1882.  Rawlingx,  Ex  parte.  Cleaver,  In 
re,  18  Q.  B.  D.  489  ;  56  L.  J.,  Q.  B.  197  ;  66  L.  T. 
593  ;  35  W.  R.  281— C.  A. 

Provision  exempting  Purchaser  from  Inquiry 
as  to  Default.] — A  bill  of  sale  contained  powers 
for  the  grantees,  upon  default  being  made  by  the 
grantor  in  payment  of  any  of  the  sums  secured, 
to  enter  upon  the  premises  and  seize  and  sell  the 
goods  assigned,  and  a  stipulation  that  upon  any 
such  sale  the  purchaser  should  not  be  bound  to 
see  or  inquire  whether  any  such  default  had  been 
made  : — Held,  that  this  stipulation  was  not  for 
the  '*  maintenance  "  or  for  the  "  defeasance  "  of 
the  security,  within  the  meaning  of  s.  7  of  the 
Bills  of  Sale  Act  (1878)  Amendment  Act,  1882, 
and  of  the  instructions  given  in  the  form  in  the 
schedule  to  that  act ;  that  the  effect  of  the  stipu- 
lation was  to  alter,  to  the  prejudice  of  the  grantor, 
the  legal  rights  which  the  act  and  the  form  were 
intended  to  secure  to  him,  and  therefore  that  the 
bill  of  sale  was  void  under  s.  9  as  not  being  in 
accordance  with  the  form.  Blaiberg  v.  Beckett 
18  Q.  B.  D.  96  ;  56  L.  J.,  Q.  B.  35 ;  55  L.  T.  876  ; 


35  W.  R.  34— C.  A.  S.  P.  Blaiberg  v.  Parson*. 
or  Parians  v.  Hargreaves,  17  Q.  B.  D.  336  ;  55 
L.  J.,  Q.  B.  408  ;  34  W.  R.  717— D. 

Power  to  Value  Goods  and  Purchase  at  Valua- 
tion. ] — A  power  given  to  the  grantee  of  a  bill  of 
sale  to  sell  the  goods  "  or  to  have  them  valued, 
and  to  purchase  them  at  such  valuation,  and 
receive  the  moneys  to  arise  from  such  rale  or 
valuation,"  is  not  a  term  for  the  maintenance  of 
the  security  within  the  meaning  of  the  form  in 
the  schedule  to  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882,  and,  therefore,  a  bill  of 
sale  which  contains  a  clause  giving  such  power 
is  void  by  8.  9.  Lyon  v.  Morris,  19  Q.  B.  D.  139  : 
56  L.  J.,  Q.  B.  378  ;  56  L.  T.  915— D. 

What  Expenses  and  Costs  may  be  added  to 
Security.] — A  bill  of  sale  contained  a  proviso 
making  void  the  security  on  payment  of  the 
principal  sum  and  interest  and  any  expenses 
which  the  grantee  might  properly  incur  in  law- 
fully seizing  and  removing  the  chattels,  and  any 
costs  he  might  properly  incur  in  defending  and 
maintaining  his  rights  under  the  bill ;  and  a 
further  power  after  five  clear  days  from  tbe 
day  of  seizure  to  remove  and  sell  the  chattels 
and  retain  out  of  the  proceeds  the  principal  un- 
paid and  interest  due,  and  all  costs  and  expenses 
he  might  incur  as  aforesaid,  and  the  expenses  of 
sale.  In  an  action  for  a  declaration  that  the  bill 
of  sale  was  void  as  not  being  in  accordance  with 
the  form  given  in  the  schedule  to  the  Bills  of 
Sale  Act  (1878)  Amendment  Act,  1882  :— Held, 
that  the  bill  was  valid  and  did  not  in  either  of 
these  respects  offend  Against  the  statute,  ten- 
ley  v.  Simmons,  34  Ch.  D.  698 ;  56  L.  J.,  Ch. 
329  ;  66  L.  T.  134  ;  35  W.  R.  422— C.  A. 

A  bill  of  sale,  which  contained  an  express 
power  of  seizure  and  sale,  provided  that  the 
mortgagee  should  out  of  the  moneys  to  arise 
from  any  such  sale  as  aforesaid  in  the  first  place 
pay  "  the  expenses  attending  such  sale  or  other- 
wise incurred  in  relation  to  this  security :  "— 
Held,  that  the  bill  of  sale  was  void  as  not  being 
in  conformity  with  the  statutory  form  given  by 
the  Bills  of  Sale  Act,  1882.  Calvert  v.  Thome*, 
19  Q.  B.  D.  204  ;  56  L.  J.,  Q.  B.  470 ;  57' L.  T. 
441  ;  35  W.  R.  616— C.  A. 

A  bill  of  sale  contained  a  covenant  for  the 
payment  by  the  grantor  of  all  rates,  taxes,  and 
outgoings  whatsoever  in  respect  of  the  house 
and  premises,  in  default  of  which  the  grantor 
should  pay  the  same  and  "  charge  the  amount  to 
the  grantor,"  and  all  expenses  to  which  he 
"  might "  be  put,  and  "  which  said  sums  "  should 
be  "  added  to  and  form  part  of  this  security." 
The  bill  contained  a  power  to  seize  for  the  causes 
mentioned  in  s.  7  of  the  Bills  of  Sale  Act  (1878) 
Amendment  Act.  1882  :— Held,  that  the  bill  of 
sale  was  bad,  as  being  against  the  statutory  form 
in  giving  to  the  grantee  a  larger  right  than  he 
would  have  had  if  the  form  had  been  followed. 
Macey  v.  Gilbert,  57  L.  J.,  Q.  B.  461— D. 

Profits  of  Auctioneers  allowed  to  Grantee.]— 

By  a  bill  of  sale  given  to  grantees  who  were 
auctioneers,  it  was  provided  that  in  case  of  sale 
of  the  goods,  they  might  out  of  the  proceeds  of 
sale,  in  the  first  place  reimburse  themselves  the 
costs,  charges,  and  expenses  of  and  attending 
such  sale,  including  therein  their  full  charges 
and  commission  as  auctioneers,  as  if  they  were 
selling  on  behalf  of  the  grantor : — Held,  that  the 


253 


BILLS    OF    SALE— Statutory  Form. 


254 


bill  of  sale  was  void,  as  this  provision  was  not 
for  the  maintenance  of  the  security,  bat  for 
obtaining  for  the  grantees,  in  addition  to  the 
security,  their  trade  profit  as  auctioneers  by  the 
sale,  an  advantage  they  would  not  have  had  if 
the  statutory  form  had  been  followed.  Furber 
t.  CM,  18  Q.  B.  D.  494  ;  66  L.  J.,  Q.  B.  273 ;  56 
LT.689;  35  W.  R.  398— C.  A. 


Vnseemry  Terms — Vo  Power  to  Seise.] — The 
insertion  in  a  bill  of  sale  of  terms  agreed  to  by 
the  parties  for  the  maintenance  of  the  security, 
bat  which  are  not  necessary  for  maintaining  the 
security  within  the  meaning  of  s.  7  of  the  Bills  of 
Sale  Act  (1878)  Amendment  Act,  1882,  does 
not  render  the  bill  of  sale  void,  provided  power 
is  not  given  to  the  grantee  to  seize  the  goods  for 
default  in  the  performance  of  any  covenant  or 
agreement  not  necessary  for  maintaining  the 
security.  Topley  v.  Corsbie,  20  Q.  B.  D.  350 ; 
57  L.  J.,  Q.  B.  271 ;  58  L.  T.  342  ;  36  W.  B.  352 
-D. 


unqualified  Covenant  to  Produoe 
lower  to  seise.] — A  bill  of  sale  contained  a 
clause  in  which  the  grantor  agreed  with  the 
grantees  that  he  would,  during  the  continuance 
of  the  security,  pay  all  rents,  rates,  taxes, 
assessments,  or  outgoings  which  ought  to  be 
paid  by  the  tenant  or  occupier  of  the  premises 
then  occupied  by  him,  on  which  the  said 
chattels  and  things  then  were,  or  any  other 
place  or  places  where  any  of  the  said  chattels 
and  things  inclnded  in  the  security  might 
during  its  continuance  be,  and  would  take 
proper  receipts  for  such  payments,  and  would, 
<m  demand  in  writing,  produce  to  the  grantees 
or  their  authorised  agents  the  receipts  for  every 
such  payment  as  aforesaid  .  .  .  provided 
always,  that  the  chattels  thereby  assigned  should 
not  be  liable  to  seizure  or  be  taken  possession  of 
by  the  grantees  for  anv  cause  other  than  those 
specified  in  s.  7  of  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882  : — Held,  that,  as  the  cove- 
nant to  produce  the  receipts  was  one  for  the 
maintenance  of  the  security,  there  was  a  power 
to  seize  for  a  breach  of  it ;  but  that  though  the 
covenant  to  produce  was  not  qualified  by  the 
condition  that  the  non-production  of  the  receipts 
might  be  excused,  yet  the  power  to  seise  under 
the  covenant  was  not  unqualified,  but  limited  to 
the  ground  provided  by  8.  7  of  the  Bills  of  Sale 
Act,  1882,  and  was  not  contrary  to  the  form  in 
the  schedule,  and  the  bill  of  sale  was  therefore 
good.  Turner  r.  Culpan,6&L.  T.  340:  36  W.  R. 
J78-D. 

A  bill  of  sale  by  which  the  grantee  is  em- 
powered to  seize  goods  upon  failure  by  the 
gnntor  to  produce  the  receipts  for  rent,  rates 
sad  taxes,  after  a  verbal  demand,  is  invalid. 
Ascif  v.  Burton,  11  Q.  B.  D.  537;  52  L.  J., 
Q.  B.  636 ;  32  W.  B.  423— C.  A.  Affirming  48 
LT.433;  47  J.  P.  392— D. 

Covenant  to  pay  Interest  on  Mortgages  of 

ftiisiiss.  ]— A  bill  of  sale  given  as  a  security  for 
the  payment  of  money  contained  a  covenant  for 
the  payment  by  the  grantor  of  all  interest  on 
mortgages,  if  any,  of  the  premises  on  which  the 
gwds  assigned  were  or  to  which  they  might  be 
removed: — Held,  that  this  stipulation  was  a 
deration  from  the  statutory  form  and  that  the 
oil!  of  sale  was  therefore  void.  Watson  v.  Strick- 


land, 19  Q.  B.  D.  391  ;  56  L.  J.,  Q.  B.  594 ;  35 
W.  R.  769— C.  A. 


8.     DEFEASANCE  OF  THE   SECURITY. 

Defeasance— What  is — Replacing  Chattels.] — 
Set-  Consolidated  Credit  Corporation  v.  Oosney, 
ante,  col.  250. 

Recited  Indenture— Agreement  to  perform 
Covenants.] — A-  bill  of  Bale  after  reciting  a 
certain  indenture,  contained,  inter  alia,  an 
agreement  by  the  grantor  that  he  would  "  per- 
form the  covenants  and  stipulations  contained 
in  the  said  recited  indenture  ;  "  but  those  cove- 
nants and  stipulations  did  not  appear  in  the 
bill  of  sale : — Held,  that  the  bill  of  sale  was 
therefore  void  under  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882  (45  &  46  Vict.  c.  43), 
s.  9.  Lee  v.  Barnes,  17  Q.  B.  D.  77  ;  34  W.  R. 
640— D. 

Two  Documents — Promissory  Koto  and  Bill 
of  Sale.] — Where  a  bill  of  sale,  proper  in  its 
terms,  is  accompanied  by  another  document 
which  contains  terms  not  allowed  by  the  Bills 
of  Sale  'Act,  1882,  and  the  whole  of  the  con- 
ditions of  the  transaction  are  gathered  from  the 
joint  effect  of  the  two  documents,  the  bill  of 
sale  is  void.  Simpson  v.  Charing  Cross  Bank, 
34  W.  R.  568— D. 

By  a  bill  of  sale,  drawn  in  accordance  with 
the  form  in  the  schedule  of  the  Bills  of  Sale 
Act,  1882,  and  duly  registered,  the  grantor 
assigned  certain  specified  chattels  to  secure 
to  the  grantees  the  repayment  of  a  sum  of 
80/.,  and  interest  thereon  at  30  per  cent. ;  the 
principal  sum  to  be  paid,  together  with  the 
interest  then  due,  by  equal  monthly  payments 
of  5/.  6«.  on  specified  days  until  the  whole  sum 
and  interest  should  be  fully  paid.  The  grantor 
at  the  same  time  gave  a  separate,  promissory 
note  bearing  the  same  date  as  the  bill  of  sale, 
promising  to  pay  the  grantees,  or  order,  951. 12*., 
oy  equal  monthly  instalments  of  52.  6s.,  payable 
on  the  same  days  as  the  monthly  payments  in 
the  bill  of  sale,  until  the  whole  sum  of  95/.  12*. 
should  be  fully  paid  ;  and  the  note  contained  a 
stipulation  that  in  case  of  default  in  payment  of 
any  instalment  the  whole  of  the  same  sum  should 
become  due  and  payable: — Held,  that  by  reason 
of  this  stipulation  the  promissory  note  was  a 
defeasance  of  the  bill  of  sale  within  the  meaning 
of  the  Bills  of  Sale  Act,  1878,  s.  10,  because  if  at 
any  time  the  whole  sum  payable  on  the  note  were 
paid,  the  right  of  the  grantees  under  the  bill  of 
sale  would  cease,  and  therefore  the  bill  of  sale 
was  void.  Counsell  v.  London  and  Westminster 
Loan  and  Discount  Company,  19  Q.  B.  D.  512  ; 
56  L.  J.,  Q.  B.  D.  622  ;  36  W.  R.  53— C.  A. 

The  defendant  gave  to  the  plaintiffs  a  bill 
of  sale  of  personal  chattels  to  secure  the  repay- 
ment of  a  sum  of  money  and  interest ;  and  at  the 
same  time,  and  as  part  of  the  same  transaction, 
gave  them  his  promissory  note  for  the  payment 
of  the  same  sum  and  interest  by  instalments  of 
the  same  amounts,  and  to  be  paid  on  the  same 
days,  as  provided  by  the  bill  of  sale.  The  pro- 
missory note  also  stipulated  that  in  the  event  of 
any  of  the  instalments  falling  into  arrear  the 
whole  amount  outstanding  should  immediately 
become  due  and  payable.  In  an  action  on  the 
promissory  note  : — Held,  that,  though  the  stipu- 


255 


BILLS   OF   SALE— Statement  of  Consideration. 


866 


lation  in  the  promissory  note  rendered  the  bill 
of  sale  void,  the  promissory  note  was  good  and 
the  plaintiffs  were  entitled  to  recover.  Monetary 
Advance  Company  v.  Cater,  20  Q.  B.  D.  785  ;  57 
L.  J..  Q.  B.  463  ;  59  L.  T.  311.— D. 


Agreement  and  Bill  of  Sale.] — Under 


s.  8  of  the  Bills  of  Sale  Act  (1878)  Amendment 
Act,  1882,  a  bill  of  sale  is  void  unless  it  "  truly 
set  forth  the  consideration  for  which  it  was 
given  ;  "  that  is  to  say,  it  most  show,  on  the  face 
of  it,  the  true  agreement  between  the  parties, 
and  must  not  be  dependent  for  its  real  effect 
upon  some  other  instrument.  Thus,  when  M. 
agreed  in  writing  to  execute  in  favour  of  S. 
certain  instruments,  including  a  bill  of  sale,  as 
securities  for  a  debt,  the  agreement  providing, 
amongst  other  things,  for  payment  of  compound 
interest,  and  M.  accordingly  executed  a  bill  of 
sale,  which  did  not  explain  the  real  nature  or 
extent  of  the  agreement,  and  contained  only 
such  part  of  it  as  could  properly  be  embodied  in 
a  bill  of  sale,  it  was  held  that  the  bill  of  sale 
was  void.  Simpson  v.  Charing  Cross  Bank  (34 
W.  R.  568)  followed.  Sharp  v.  McIIenry,SS  Ch. 
D.  428  ;  57  L.  J.,  Ch.  961 ;  57  L.  T.  606— Kay,  J. 

Provision  exempting  Purchaser  from  Inquiry 
as  to  Default.] — See  Blaiberg  v.  Beckett,  ante, 
col.  251. 


111.  STATEMENT  OF  C0H8IDERATI0H. 

General  Requisites.  ] — The  consideration  for  a 
bill  of  sale  is  sufficiently  stated,  so  as  to  satisfy 
the  requirements  of  s.  8  of  the  Bills  of  Sale  Act, 
1878,  if  it  is  stated  with  substantial  accuracy — if 
the  true  legal  or  business  effect  of  what  actually 
took  place  is  stated.  Strict  literal  accuracy  of 
statement  is  not  necessary.  Johnson,  Ex  parte. 
Chapman,  In  re,  26  Ch.  D.  338  ;  53  L.  J.,  Ch. 
763  ;  50  L.  T.  214  ;  32  W.  R.  693  ;  48  J.  P.  648 
— C.  A. 

By  s.  8  every  bill  of  sale  shall  truly  set  forth 
the  consideration  for  which  it  was  given  : — Held, 
that  inaccuracies  in  the  statement  will  not  in- 
validate a  bill  of  sale,  if  it  is  apparent  from  the 
terms  of  the  instrument  what  the  consideration 
really  was.  Roberts  v.  Roberts,  13  Q.  B.  D.  794  ; 
53  L.  J.,  Q.  B.  313  ;  50  L.  T.  351 ;  32  W.  R.  605 
— C.  A. 

Consideration,  802. — 16Z.  Repayable  on  Demand 
— Immediate  Demand.] — A  bill  of  sale  expressed 
to  be  in  consideration  of  30/.  of  which  15/.  is  re- 
payable on  demand  and  the  rest  by  monthly  in- 
stalments, may,  in  the  absence  of  evidence  that 
the  transaction  is  a  sham,  be  valid,  notwith- 
standing the  Bills  of  Sale  Act  (1878)  Amend- 
ment Act,  1882,  s.  12,  if  302.  is  bona  fide  paid  to 
the  grantor,  even  although,  at  his  own  request, 
demand  for  15/.  is  immediately  made  by  the 
grantee,  and  is  at  once  returned  to  him.  Dams 
v.  Usher,  12  Q.  B.  D.  490 ;  53  L.  J.,  Q.  B.  422  ; 
51  L.  T.  297  ;  32  W.  R.  832— D. 

Deduction  of  Bill  of  Costs.]— A  bill  of  sale  in 
its  operative  part  was  stated  to  be  given  "in 
consideration  of  the  sum  of  102.  now  paid  by  H. 
to  C."  In  the  preparation  of  the  bill  of  sale  D. 
acted  as  solicitor  for  both  H.  and  C,  and  on  the 
execution  of  the  deed  retained,  with  C.'s  consent. 
9/.  out  of  the  10/.  in  payment  of  his  bill  of  costs 
in  the  matter,  and  only  handed  C.  the  balance 


of  17. : — Held,  that  under  the  circumstances,  the 
consideration  was  truly  stated  in  the  deed  so  as 
to  satisfy  s.  8  of  the  Bills  of  Sale  Act,  1878,  for 
that,  on  the  execution  of  the  deed,  D.  no  longer 
held  the  money  as  agent  for  H.  or  had  any  doty 
to  perform  towards  him,  but  held  the  money  as 
C.'s  agent,  and  could,  with  C.'s  consent,  retain 
the  amount  of  his  bill  of  costs.  Firth,  In  re 
(19  Ch.  D.  419),  distinguished.  Hunt,  Ex  parte, 
Cann,  In  re,  13  Q.  B.  D.  36— Cave,  J. 

Pre-existing  Debt]— A  bill  of  sale  of  stock-in- 
trade,  fixtures  and  effects,  was  given  in  1882  to 
secure  the  payment  of  100/.  and  interest,  the 
money  being  in  the  operative  part  of  the  instru- 
ment made  payable  on  demand,  though  the 
agreement  was  recited  as  for  a  loan  repayable 
"  by  instalments,"  the  amount  of  which  instal- 
ments was  not  specified.  The  bill  of  sale  repre- 
sented the  100/.  consideration  as  a  pre-existing 
debt.  It  appeared  that  98/.  had  been  owing 
from  the  grantor  to  the  grantee,  and  that  the 
attesting  solicitor  required  the  balance  of  22.  to 
be  paid  over  before  execution.  A  payment  was  i 
accordingly  made,  but  the  sum  actually  advanced 
was  20/. : — Held,  that  the  consideration  for  the 
bill  of  sale  was  sufficiently  stated.  Parke,  1% 
re,  13  L.  R.,  Ir.  85— Bank. 

True  Agreement — Two  Documents.]— Under 
s.  8  of  the  Bills  of  Sale  Act  (1878)  Amendment 
Act,  1882,  a  bill  of  sale  is  void  unless  it  "truly 
set  forth  the  consideration  for  which  it  was 
given  ; "  that  is  to  say,  it  must  show,  on  the  face 
of  it,  the  true  agreement  between  the  parties, 
and  must  not  be  dependent  for  its  real  effect 
upon  some  other  instrument.  Thus,  where  H.  ' 
agreed  in  writing  to  execute  in  favour  of  8. 
certain  instruments,  including  a  bill  of  sale,  as 
securities  for  a  debt,  the  agreement  providing, 
amongst  other  things,  for  payment  of  compound 
interest,  and  M.  accordingly  executed  a  bill  of 
sale,  which  did  not  explain  the  real  nature  or 
extent  of  the  agreement,  and  contained  only 
such  part  of  it  as  could  properly  be  embodied  in 
a  bill  of  sale,  it  was  held  that  the  bill  of  sale 
was  void.  Simpson  v.  Charing  Cross  Bank  (34 
W.  R.  568)  followed.  Sharp  v.  McHenry, 
38  Ch.  D.  428 ;  57  L.  J.,  Ch.  961 ;  57  L.  T. 
606 — Kay,  J.,  and  see  cases,  ante,  col.  254. 

Sum  "  then  owing  " — Acceptances  unpaid.]— 

A  bill  of  sale  purported  to  be  given  for  312/. 
"  then  owing "  by  the  grantor  to  the  grantee. 
As  to  126/.,  part  of  that  sum,  the  facts  were  as 
follows :  The  grantee  at  the  grantor's  request 
accepted  certain  bills  of  exchange  for  126/.  drawn 
on  the  grantor  and  made  payable  to  the  grantor  s 
creditors,  in  order  to  secure  a  composition  made 
by  the  grantor  with  his  creditors.  It  was  ar- 
ranged that  the  grantee  should  pay,  and  he  did 
pay,  the  bills  at  maturity.  It  was  admitted  that 
the  transaction  was  bona  fide,  and  that  there 
was  no  intention  to  mislead.  At  the  time  of 
the  execution  of  the  bill  of  sale,  the  bills  were 
not  due  and  the  grantee  had  not  paid  them  :— 
Held,  that  the  sum  of  126/.  was  not  "then 
owing  "  and  that  the  consideration  was  not  truly 
set  forth,  and  therefore  the  bill  of  sale  was  bad. 
Mayer  v.  Mindlevich,  59  L.  T.  40O— D. 

Bill  of  Sale  given  by  way  of  Indemnity  to  a 

Surety.] — By  a  bill  of  sale  expressed  to  be  given 
in  consideration  of  the  grantee  thereof  having  at 


857 


BILLS   OF   SALE— Other  Matters  Relating  to. 


258 


the  request  of  the  grantor  become  guarantee, 

and  signed  a  promissory  note  for  the  payment  of 

a  sun  of  457.  by  the  grantor  of  which  322.  or 

thereabouts  was  then  owing,  the  grantor  assigned 

id  the  grantee  certain  chattels,  described  in  a 

schedule,  by  way  of  security  for  any  moneys 

winch  the  grantee  might  be  called  upon  to  pay 

in  respect  of  such  guarantee  and  interest  thereon 

at  the  rate  of  5/.  per  cent,  per  annum,  and  the 

grantor  agreed  that  he  would  pay  to  the  grantee 

any  nuns  as  aforesaid  together  with  interest  then 

doe  by  monthly  payments  of  21.  on  the  first  of 

erery  month : — Held,  that  the  consideration  for 

which  the  bill  of  sale  was  given  was  sufficiently 

set  forth.     Hughes  v.  Little,  18  Q.  B.  D.  32 ; 

»  h.  J.t  Q.  B.  96 ;  55  L.  T.  476  ;  35  W.  R.  36 

-C.A. 

fan  "mow  paid  "—Hew  BUI  of  Sale  in  place 
if  Invalid  one.]-— A.  made  a  bona  fide  advance 
to  B.  of  220/.  which  was  secured  by  a  bill  of  sale ; 
after  the  day  for  repayment  was  past,  the  bill  of 
arte  was  found  to  be  invalid,  thereupon  a  new 
bill  of  sale  was  by  the  agreement  of  all  parties 
dnwn  up  according  to  the  form  given  in  the 
fills  of  Sale  Act,  1882 ;  it  contained  the  words, 
"In  consideration  of  the  sum  of  220/.  now  paid 
to  B.  by  A.  the  receipt  of  which  the  said  B. 
hereby  acknowledges."  No  interest  was  charged, 
though  it  continued  to  be  paid  under  the  terms 
of  the  first  bill  of  sale,  and  no  fresh  advance  was 
ude  to  B. : — Held,  that  the  consideration  was 
truly  stated,  and  the  bill  of  sale  valid.  Nelson, 
&p*rtc,  Hockaday,  In  re,  55  L.  T.  819 ;  35 
W.R.264;  4  M.  B.  k  12— C.  A. 

On  the  12th  of  February  a  bill  of  sale  was 
executed  to  secure  an  actual  advance  in  cash  of 
ItMXV.  After  its  execution  it  was  discovered 
that  it  contained  some  clauses  which  made  it 
toid  under  the  Bills  of  Sale  Acts.    It  was  there- 

ri  cancelled,  and  a  new  bill  of  sale  was,  on 
16th  of  February,  executed  in  substitution 
far  the  first,  and  was  registered  on  the  18  th  of 
February .  The  second  deed  contained  nothing 
to  show  that  it  was  given  in  place  of  a  prior  bill 
of  sale,  but  it  purported  to  be  given  "  in  con- 
wfeimtion  of  1,500/.  now  paid  "  by  the  grantee 
to  the  grantor  : — Held,  that  the  consideration 
was  truly  stated,  and  that  it  was  not  necessary 
to  state  the  whole  history  of  the  transaction. 
All**,  Ex  parte,  Munday,  In  re,  14  Q.  B.  D.  43  ; 
8  W.  E.  231— D. 

IV.    OTHER  MATTERS  RELATIXG  TO. 

.  Was  nay  give— Equitable  Owner.]— Upon  a 
judgment  against  a  husband  and  wife  jointly, 
«rtain  household  furniture  was  taken  in  execu- 
te at  the  house  where  they  resided.  On  an 
interpleader  issue  to  try  the  title  to  such  furni- 
ture as  between  the  execution  creditors  and 
claimants,  it  appeared  that  before  the  marriage 
the  husband  had  executed  a  deed  declaring 
jjatthe  goods  in  question,  which  then  be- 
taged  to  the  wife,  should  after  the  marriage 
continue  to  belong  to  her  for  her  sole  and 
*4*iate  use.  The  wife  assigned  the  goods  to 
the  claimants  by  a  bill  of  sale  made  prior 
to  the  execution  and  duly  registered  under 
the  BiUi  of  Sale  Acts,  1878  and  1882,  to  which 
the  husband  was  no  party  -.—Held,  that  the  bill 
tiftte  executed  by  the  wife  was  valid  under  the 
Bull  of  Sale  Acts,  and  that  the  claimants  were 
^titled  to  the  goods  as  against  the  execution 


creditors.  Chapman  y.  Knight  (5  C.  P.  D.  308), 
discussed.  Walrond  v.  Qoldmann,  16  Q.  B.  D. 
121 ;  55  L.  J.,  Q.  B.  323  ;  63  L.  T.  963  ;  34  W.  R. 
272— D. 

Retrospective  Effoot  of  Bills  of  Sale  Aots.] — 
In  1873,  S.  executed  a  bill  of  sale  of  furniture  to 
the  respondents  to  secure  a  loan,  with  an 
absolute  unconditional  power  to  take  possession 
and  sell  in  case  of  default  of  payment  upon 
demand.  The  bill  was  duly  registered,  but 
never  re-registered.  In  1883  the  respondents,  in 
order  to  protect  the  furniture  from  S.'s  creditors, 
demanded  payment  and  on  default  took  posses- 
sion of  the  furniture  and  sold  it  to  C,  giving 
him  a  receipt  for  the  purchase-money  though 
no  money  actually  passed.  At  the  same  time  C., 
not  being  able  to  pay,  executed  a  bill  of  sale  of 
the  furniture  to  the  respondents  to  secure  the 
purchase-money.  This  bill  was  duly  registered : 
the  receipt  was  not  registered.  The  transaction 
with  C.  was  found  by  the  jury  to  be  a  bona  fide 
one.  The  furniture  having  been  afterwards  seized 
under  a  fi.  fa.  against  S. : — Held,  that  the  sale 
to  C.  being  an  absolute  and  bona  fide  transfer 
of  the  property,  the  bill  of  1873  was  spent  and 
satisfied,  and  the  Bills  of  Sale  Acts  of  1854, 1866, 
1878,  and  1882  had  no  application  whatever  to 
it  at  the  time  of  the  execution,  whether  the 
furniture  was  or  was  not  at  that  time  in  the  ap- 
parent possession  of  S. ;  and  that  the  respondents 
were  entitled  to  the  furniture.  Cookson  v.  Swire, 
9  App.  Cas.  653  ;  54  L.  J.,  Q.  B.  249  ;  52  L.  T.  30 ; 
33  W.  R.  181— H.  L.  (E.). 

"  Order  and  Disposition."]— The  Bills  of  Sale 
Act,  1882,  repeals  the  20th  section  of  the  Bills  of 
Sale  Act,  1878,  in  respect  of  bills  of  sale  given 
by  way  of  security,  but  not  in  respect  of  bills  of 
sale  given  by  way  of  absolute  transfer,  and  there- 
fore chattels  comprised  in  a  registered  bill  of  sale 
given  by  way  of  absolute  transfer  are  not  in  the 
order  and  disposition  of  the  grantor  within  the 
Bankruptcy  Act.  Swift  v.  Pannell,  24  Ch.  D. 
210  ;  53  L.  J.,  Ch.  341  ;  48  L.  T.  351  ;  31  W.  R. 
543— Fry,  J. 

Notwithstanding  the  repeal  of  s.  20  of  the 
Bills  of  Sale  Act,  1878,  by  s.  15  of  the  Bills  of 
Sale  Act,  1882,  the  effect  of  s.  3  of  the  latter  act 
is,  that  the  grantee  of  a  bill  of  sale,  registered 
under  the  Act  of  1878  before  the  coming  into 
operation  of  the  Act  of  1882,  is,  so  long  as  the 
registration  is  subsisting,  entitled  to  the  protec- 
tion afforded  by  s.  20  against  the  "order  and 
disposition  "  of  the  grantor,  even  when  an  act  of 
bankruptcy  is  committed  by  the  grantor  after 
the  coming  into  operation  of  the  Act  of  1882. 
Izard,  Ex  parte,  Chappie,  In  re,  23  Ch.  D.  409  ; 
52  L.  J.,  Ch.  802  ;  49  L.  T.  230  ;  32  W.  R.  218— 
C.  A. 

Second  Bill  of  Sale— Cancellation  of  First]— 
Where  doubts  had  arisen  as  to  the  validity  of  a 
bill  of  sale,  and  another  was  subsequently 
executed,  which  recited  that  it  had  been  executed 
because  doubts  had  arisen  whether  the  first 
affidavit  was  sufficient : — Held,  that  the  second 
bill  of  sale  was  intended  to  be  effective  only  in 
the  event  of  the  first  being  invalid,  and  did  not 
therefore  cancel  it  Cooper  v.  Zeffert,  32  W.  R. 
402— C.  A. 

Sale  of  Goods  in  ordinary  course  of  Business.] 
— Farm  produce.  &&.  over  which  a  bill  of  sale 

K 


259 


BILLS    OF    SALE— Other  Matters  Relating  to. 


260 


had  been  granted,  were  seized  by  the  landlord 
of  a  farm  under  a  distress  for  rent,  and  were 
appraised  at  a  considerably  greater  amount  than 
the  amount  of  rent  due.  The  agent  of  the  land- 
lord, knowing  that  the  tenant  was  indebted  to 
the  landlord  in  respect  of  the  incoming  valua- 
tion, but  in  ignorance  of  the  bill  of  sale,  allowed 
the  tenant  to  sell  a  quantity  of  wheat  which  had 
been  seized  under  the  distress.  Upon  obtaining 
the  amount  realized  by  the  sale  of  the  wheat,  the 
agent  paid  to  the  landlord  the  amount  due  under 
the  valuation.  In  an  action  by  the  landlord 
against  the  tenant  and  the  grantor  of  the  bill 
of  sale,  for  breach  of  the  covenants  of  the  lease 
of  the  farm,  and  for  an  injunction  to  restrain 
the  removal  of  the  goods,  &c.,  the  grantor  of  the 
bill  of  sale  counter-claimed  in  respect  of  the 
amount  so  paid  to  the  landlord : — Held,  that 
the  sale  of  the  wheat  under  the  circumstances 
was  not  a  sale  in  the  ordinary  course  of  business, 
and  that  the  grantee  of  the  bill  of  sale  was 
entitled  to  recover  the  amount  realized  thereon 
from  the  landlord.  Musgrave  v.  Stephens,  47 
J.  P.  295  ;  1  C.  fc  B.  38— Field,  J. 

Priority— Two  Bills— Future  Chattels.]— By 
a  bill  of  sale  executed  in  1875,  R.  granted  to  M. 
the  after-acquired  chattels  which  should  be  upon 
certain  premises  of  B.  The  title  of  M.  under  the 
bill  of  sale  ultimately  vested  in  the  defendant. 
R.  brought  upon  the  premises  chattels  acquired 
by  him  after  1875,  and  before  the  coming  into 
operation  of  the  Bills  of  Sale  Act,  1882,  by  a 
bill  of  sale  granted  to  the  plaintiff  these  after- 
acquired  chattels.  The  plaintiff  had  no  notice 
of  the  bill  of  sale  in  favour  of  M.  In  January, 
1884,  the  defendant  seized  the  after-acquired 
chattels  then  upon  the  premises  of  B.     The 

Slaintiff  demanded  possession  of  them  from  the 
efendant,  who  refused  to  give  them  up ;  and 
the  plaintiff  thereupon  brought  an  action  to 
recover  their  value : — Held,  that  the  plaintiff 
was  entitled  to  recover  from  the  defendant  the 
value  of  the  goods  in  question  ;  for  the  grant  of 
the  after-acquired  chattels  to  M.  carried  only 
an  equitable  interest,  while  the  plaintiff,  by  the 
grant  to  him,  took  the  legal  interest  without 
notice  of  the  prior  equitable  interest  vested  in 
M.,  and  had  a  better  title  than  the  defendant. 
Joseph  v.  Dyons,  infra,  followed.  Hollas  v. 
Robinson,  15  Q.  B.  D.  288  ;  54  L.  J.,  Q.  B.  364  ; 
83  W.  R.  426— C.  A. 


Pledge  of,  in  course  of  Business.]  —By  a 


bill  of  sale  dated  February  3, 1881,  M.,  by  way 
of  security,  assigned  to  the  plaintiff  his  good-will 
and  interest  in  a  business  carried  on  by  him  at 
W.,  and  all  the  existing  stock-in-trade,  and  all 
future  stock-in-trade  to  be  brought  on  to  the 
business  premises.  M.  pledged  with  the  defen- 
dant, a  pawnbroker,  stock-in-trade  which  had 
been  brought  on  to  the  premises  after  the  date 
of  the  bill  of  sale ;  the  defendant  received  the 
pledge  in  the  ordinary  course  of  business  with- 
out notice,  actual  or  constructive,  of  the  bill  of 
sale.  In  an  action  for  detinue  or  conversion  of 
the  property  so  pledged : — Held,  that  the  plain- 
tiff had  an  equitable  title  to  the  after-acquired 
property,  but  that  the  legal  property  was  in  M., 
from  whom  the  defendant  derived  a  legal  inte- 
rest, which,  in  the  absence  of  notice  to  the  de- 
fendant of  the  prior  equity,  was  to  be  preferred. 
Joseph  v.  Lyons,  J5  Q.  B.  D.  280 ;  54  L.  J.,  Q.  B. 
1 ;  61  L.  T.  740  ;  33  W.  B.  145— C.  A. 


Seizure— Goods  on  Highway— Removal  witkfat 
Five  Days.>-By  the  Bills  of  Sale  Act  (1878) 
Amendment  Act,  1882  (45  &  46  Vict  c  43), 
s.  13,  chattels  seized  or  taken  possession  of  under 
a  bill  of  sale  "shall  remain  on  the  premises 
where  they  were  so  seized  or  so  taken  possession 
of,  and  shall  not  be  removed  or  sold  until  after 
the  expiration  of  five  clear  days."  A  horse  and 
carriage  were  seized,  under  a  bill  of  sale,  in  a 
public  street,  and  at  once  removed  to  premises 
of  the  grantee,  and  after  five  days  were  sold  by 
him : — Held,  that  the  seizure  in  the  street  w» 
lawful,  and,  in  the  absence  of  actual  damage 
arising  from  the  removal  within  the  five  days, 
no  action  would  lie.  (TNttil  v.  City  and  Cmsiy 
Finance  Company,  17  Q.  B.  D.  234 ;  55  L.  T. 
408  ;  34  W.  R.  545— D. 

Removal  within  Five  Days— Constat  of 

Grantor.]— The  Bills  of  Sale  Act  (1878)  Amend- 
ment  Act,  1882  (45  k  46  Viet,  c  43),  s.  13,  which 
provides  that  all  chattels  seized  under  a  bill  of 
sale  shall  remain  on  the  premises  where  far 
were  so  seized  for  five  clear  days  after  seizure,  is 
for  the  benefit  of  grantors  only.  Where,  there- 
fore, goods  are  seized  and  removed  by  the 
grantee,  with  the  grantor's  consent,  within  such 
period  of  five  days,  the  grantor's  landlord  has 
no  right  of  action  against  the  grantee  for  kesof 
rent  owing  to  such  removal.  Lane  v.  Tyler,  66 
L.  J.,  Q.  B.  461— D. 

Statement  of  Affairs,  showing  Gnat*  a 
Secured  Creditor  —  Estoppel. J  —  The  plaintiff 
gave  a  bill  of  sale  on  his  furniture  to  the  defen- 
dants to  secure  an  advance.  Before  the  payment 
of  the  first  instalment  due  under  the  bill  of  eete 
he  filed  a  petition  in  bankruptcy,  and  in  his 
statement  of  affairs  returned  the  defendants  as 
secured  creditors.  The  defendants  seized  and 
sold  the  furniture,  and  the  proceeds  being  in- 
sufficient to  pay  their  debt  they  proved  for  the 
residue.  A  composition  of  2s.  6<t*.  in  the  pound 
was  proposed,  and  on  the  report  of  the  official 
receiver  was  sanctioned  by  the  court  and  paid  to 
the  creditors,  including  the  defendants.  The 
plaintiff  subsequently  brought  an  action  for  the 
wrongful  seizure  of  his  goods,  alleging  that  the 
bill  of  sale  was  invalid  :— Held,  that  the  plaintiff 
having  in  the  bankruptcy  proceedings  treated 
the  bill  of  sale  as  valid,  and  obtained  thereby  an 
advantage  to  himself,  could  not  afterwards  allege 
that  the  bill  of  sale  was  invalid  so  as  to  entitle 
him  to  recover  in  this  action.  Roe  v.  Mutid 
Loan  Fund,  19  a  B.  D.  347  ;  56  L.  J.,  Q.  B.  641  j 
35  W.  R.  723— C.  A. 

Act  of  Bankruptcy.]— When  a  bill  of  sale  of 
the  whole  of  a  traders  property  is  executed  at 
security  for  an  existing  debt  and  a  fresh  advance, 
the  true  test  whether  the  execution  of  the  deed  » 
an  act  of  bankruptcy,  is,  was  the  fresh  adfance 
made  by  the  lender  with  the  intention  of  enabling 
the  borrower  to  continue  his  business,  and  had 
he  reasonable  grounds  for  believing  that  the 
advance  would  enable  the  borrower  to  do  so* 
If  these  questions  can  be  answered  in  the 
affirmative,  the  execution  of  the  deed  is  not  an 
act  of  bankruptcy.  Johnson,  Ea  parte,  Chap- 
man, In  re,  26  Ch.  D.  338  ;  53  L.  J.,  Ch.  763 ; 
50  L.  T.  214  ;  32  W.  R.  693— C.  A. 

The  court  ought  not  to  look  at  the  n**0* 
muni oated  intention  of  the  borrower,  nor  at  the 
actual  result  of  the  loan.    lb. 


961     BUILDING  CONTRACTS,  LEASES,  AND  ESTATES.      268 


BIRDS. 

See  WILD  BIRDS. 


BISHOP. 

See  ECCLESIASTICAL  LAW. 


BOARD. 

Of  Htaltk.]—Jfe»  Health. 
Of  W«rto.]— See  Metropolis. 
Loss!  Government.] — See  Health. 


BOMBAY    CIVIL    FUND. 

See  INDIA. 


BOND. 

See  DEED. 


BOOKS. 

See  COPYRIGHT. 


BOROUGH. 

See  CORPORATION. 

Vote.]— See  Election  Law. 


BOTTOMRY. 

See  SHIPPING. 


BREWER. 

See  INTOXICATING  LIQUORS. 


BRIDGE. 

See  WAY. 


BROKER. 

See  PRINCIPAL  AND  AGENT. 


BUILDING    CONTRACTS, 
LEASES    AND    ESTATES. 

I.  Building  Contracts. 
II.  Building  Leases. 
III.  Building  Estates. 

I.  BUILDING    CONTRACTS. 

Submission,  what  included  in — Revocation.] — 
A  building  contract  between  the  plaintiff  and 
the  defendants  (Commissioners  of  Public  Works), 
contained  the  following  arbitration  clause  : — "  It 
is  hereby  agreed  that  in  case  of  any  difference 
between  the  Commissioners  and  the  contractor 
in  relation  to  any  of  the  works,  matters,  and 
things  herein  contracted  for,  or  to  the  meaning 
of  these  presents  or  to  the  plans,  sections,  speci- 
fications, descriptions,  or  particulars,  or  to  any 
money  to  be  paid  or  retained,  or  to  any  act, 
matter  or  thing  done,  or  omitted  to  be  done,  by 
either  of  the  parties  hereto,  under  or  by  virtue 
of  any  of  the  provisoes,  covenants  or  stipulations 
of  these  presents,  and  whether  such  difference 
shall  relate  to  any  act  done  by  the  Commissioners 
for  the  purpose  of  determining  this  contract 
.  .  .  then,  and  in  any  such  case,  the  same  shall  be 
referred  to  such  arbitrator  as  the  Commissioners 
shall  appoint,  whose  decision  shall  be  based  upon 
the  provisions  of  these  articles,  and  shall  be  final, 
binding  and  conclusive  upon  the  parties  hereto." 
The  plaintiff  alleged  that,  whilst  the  works  were 
in  progress  the  Commissioners  directed  some  of 
them  to  be  suspended,  and  that  they  directed 
additional  works,  not  provided  for  by  the  con- 
tract, to  be  executed  ;  and  in  the  present  action, 
he  claimed  ;  (1)  1,1 12 J.  10*.  damages  for  the  sus- 
pension ;  (2)  3,6582.  8*.  Qd.  for  materials  and 
labour  in  the  additional  works ;  (8)  5702. 10*.  24. 
for  furniture  supplied  to  the  Commissioners  at 
their  request ;  and  (4)  662.  16>.  id.  interest  on 
these  sums.  After  notice  of  action  the  Commis- 
sioners, by  deed-poll,  also  signed  by  the  plaintiff 
(and  with  his  assent  so  testified),  referred  the 
plaintiffs  claim  for  5,4082.  (being  the  total  of  the 
said  sums)  to  the  arbitration  of  K.  The  plain- 
tiff, before  any  award  was  made,  and  before  the 
submissions  in  the  original  contract  or  the  last 
mentioned  deed-poll  were  made  rules  of  court, 
revoked  the  authority  of  K.  as  arbitrator  and 
commenced  the  present  action  for  the  monies 
claimed,  in  which  the  Commissioners  undertook 
to  appear  without  prejudice  to  any  of  their 
rights,  and  before  appearance  entered,  they 
applied  to  the  court  to  stay  the  action,  and  for  a 
compulsory  order  of  reference  to  K.  as  arbi- 
trator : — Held  (l),that  the  plaintiff  was  entitled 
to  revoke  the  appointment  of  K.  and  had  effec- 
tively done  so  ;  (2)  that  item  No.  1  of  the  claim 
was  clearly  outside  the  submission  in  the  build- 
ing contract ;  and  the  remaining  items  not  being 
satisfactorily  shown  to  be  within  the  submission, 
and  all  the  items  being  so  far  connected  as  to 
make  it  doubtful  whether  complete  justice  would 
be  done  to  the  parties,  unless  all  were  disposed 
of  by  the  same  tribunal,  the  court,  in  the  exer- 
cise of  its  discretion,  refused  the  application. 
Moyers  v.  Soady,  18  L.  R.,  Ir.  499— Ex.  D. 

Assignment  of  Moneys  due—Contractor  Bank- 

k  2 


268       BUILDING   CONTKACTS,   LEASES  AND   ESTATES-      264 


rapt— Completion  by  Trustee— Power  to  take 
Work  out  of  Contractor's  Hands.]— A  building 
contract  provided  that  payments  should  be  made, 
as  the  work  proceeded,  of  such  sums  on  account 
of  the  price  of  the  work  as  should  be  stated  in 
the  certificates  of  an  architect,  such  certificates 
to  be  given  at  the  architect's  discretion  at  the 
rate  of  80  per  cent,  upon  the  contract  value  of 
the  work  done  at  the  dates  of  such  certificates, 
and  that  the  remaining  20  per  cent,  should  be 
retained  till  the  completion  of  the  work.  The 
contract  empowered  the  building  owners,  in  the 
event  of  the  contractors  committing  an  act  of 
bankruptcy,  to  discharge  them  from  the  further 
execution  of  the  work,  and  employ  some  other 
person  to  complete  it,  and  to  deduct  the  amount 
paid  to  such  other  person  for  completing  the 
same  from  the  contract  price.  The  contractors 
assigned  a  portion  of  the  retention  moneys,  i.e., 
the  price  of  work  done  under  the  contract  re- 
tained under  the  before-mentioned  provision,  by 
way  of  mortgage  to  secure  a  debt,  and  notice  of 
the  assignment  was  given  to  the  building  owners. 
After  making  such  assignment  the  contractors 
filed  a  petition  for  liquidation,  the  works  then 
remaining  incomplete.  A  trustee  in  liquidation 
and  a  committee  of  inspection  were  appointed. 
The  trustee,  in  pursuance  of  a  resolution  of  the 
committee,  completed  the  work,  himself  ad- 
vancing money  for  that  purpose,  of  which  an 
amount  exceeding  that  of  the  retention  moneys 
assigned  as  aforesaid  was  still  unpaid,  there 
being  no  other  assets  from  which  he  could 
be  recouped  in  respect  thereof.  The  trustee  and 
the  mortgagees  both  claimed  the  amount  of  the 
retention  moneys  assigned  as  aforesaid  from 
the  building  owners.  On  an  interpleader  issue 
to  try  the  title  to  such  moneys  : — Held,  that,  in 
the  absence  of  anything  to  show  that  the  build- 
ing owners  had  exercised  the  power  of  taking 
the  work  out  of  the  contractor's  hands,  the 
trustee  must  be  taken  to  have  completed  the 
work  under  the  original  contract  as  trustee  of 
the  contractors'  estate,  and  not  as  a  person 
employed  to  complete  the  work  in  substitution 
for  the  contractors  ;  that  the  assignment  of  the 
retention  moneys  held  good  as  against  the 
trustee  ;  and  that  the  mortgagees  were  therefore 
entitled  to  succeed.  Tooth  v.  Hallett  (4  L.  R. 
Ch.  242)  distinguished.  Drew  v.  Josolyne,  18 
Q.  B.  D.  590  ;  56  L.  J.,  Q.  B.  490 ;  57  L.  T.  5  ; 
35  W.  R.  570—0.  A. 


Fraud  on  Bankruptcy  Law— Power  for  Buyer, 
in  the  event  of  Bankruptcy  of  Builder,  to  use 
Materials.  ] — A  shipbuilding  contract  contained 
a  clause  to  the  effect  that  if  at  any  time  the 
builder  should  cease  working  on  the  ship  for 
fourteen  days,  or  should  allow  the  time  for  com- 
pletion and  delivery  of  the  ship  to  expire  for  one 
month  without  the  same  having  been  completed 
and  ready  for  delivery,  or  in  the  event  of  the 
bankruptcy  or  insolvency  of  the  builder,  it 
should  be  lawful  for  the  buyer  to  cause  the  ship 
to  be  completed  by  any  person  he  might  see  fit 
to  employ,  and  to  employ  such  materials  belong- 
ing to  the  builder  as  should  be  then  on  his 
premises,  and  which  should  either  have  been  in- 
tended to  be  or  be  considered  fit  and  applicable 
for  the  purpose  : — Held,  that  the  clause,  so  far 
as  it  related  to  the  bankruptcy  of  the  builder, 
was  a  fraud  upon  the  bankrupt  law  and  void  as 
against  the  trustee.    Barter,  Ex  parte,  Walker, 


In  re,  26  Ch.  D.  510  ;  53  L.  J.,  Ch.  802  ;  51  L.  T. 
811  ;  32  W.  R.  809— C.  A. 

The  buyer  having  on  the  liquidation  of  the 
builder  seized  and  used  materials  belonging  to 
him  for  the  purpose  of  completing  the  ship  :— 
Held,  that  such  user  could  not  be  justified  under 
the  contract  by  a  subsequent  cesser  of  work  upon 
the  ship.    lb. 

Property  in  Materials  delivered  but  not  fixed 
— Engineer's  Certificates.] — By  an  agreement 
made  between  the  plaintiff  company  and  the 
defendant,  a  contractor,  for  the  construction  of 
a  railway,  it  was  provided  that,  once  a  month, 
the  company's  engineer  should  certify  the 
amount  payable  to  the  contractor  in  respect  of 
the  value  of  the  materials  delivered,  and  that 
such  certificates  should  be  paid  by  the  company 
seven  days  after  presentation  : — Held,  that  the 
property  in  the  "  materials  delivered,"  upon  their 
being  certified  for  by  the  engineer,  passed  to  the 
company,  though  the  materials  were  not  fixed. 
Banbury  and  Clteltenham  Direct  Railway  t. 
DantelM  L.  J.,Ch.265 ;  33  W.  R.  321— Pearson, J. 

Clause  Testing  Materials  in  Landowner— 
Bill  of  Sale.] — An  agreement,  by  a  clause  in 
an  ordinary  building  contract,  that  all  building 
and  other  materials  brought  by  the  builder  upon 
the  land  shall  become  the  property  of  the  land- 
owner, is  not  a  bill  of  sale  within  the  Bills  of 
Sale  Act,  1878  (41  &  42  Vict.  c.  31).  Brown  v. 
Bateman  (2  L.  R.,  C.  P.  272),  and  Blake  v.  hard 
(16  W.  R.  108),  followed.  Reeve  y.  Whitmm 
(4  De  G.,  J.  &  S.  1),  and  Uolroyd  v.  Marshall 
(10  H.  L.  C.  191),  distinguished.  Beeves  ▼. 
Barlow,  12  Q.  B.  D.  436  ;  53  L.  J.,  Q.  B.  192; 
50  L.  T.  782  ;  32  W.  R.  672— C.  A. 

Architect's  Certificate— Mistake.]— A  building 
contract  provided  (1)  that  the  builders  were  not 
to  vary  or  deviate  from  the  drawings  or  specifi- 
cations, or  execute  any  extra  work  of  any  kind 
whatsoever,  unless  upon  the  authority  of  the 
architect,  to  be  shown,  as  in  the  contract  stated, 
and  that  in  all  cases  where  such  extras  or 
variations  exceeded  the  sum  of  101.  the  order  or 
plan  was  to  be  further  countersigned  by  two 
members  of  the  building  committee :  (2)  that 
the  contract  price  should  be  paid  within  one 
month  after  the  architect  should  be  certified  in 
writing  that  the  whole  of  the  said  building  had 
been  completed  and  finished  to  his  satisfaction ; 
(3)  that  the  decision  of  the  architect  with 
respect  to  the  amount,  state,  and  condition  of 
the  works  actually  executed,  and  also  in  respect 
of  any  and  every  question  that  might  arise  con- 
cerning the  construction  of  the  present  contract, 
or  the  said  plans, drawings,  elevations,  and  specifi- 
cations, or  the  execution  of  the  work  thereby  con- 
tracted for,  or  in  anywise  relating  thereto,  should 
be  final  and  without  appeal.  On  the  completion 
of  the  work,  the  architect  certified  that  a  certain 
sum  was  due,  which  sum  included  the  price  of 
extras  above  101.  which  had  not  been  counter- 
signed as  required  by  the  contract : — Held,  that 
the  building  owners  could  not  resist  payment 
of  any  part  of  this  sum,  on  the  grounds  (1) 
that  the  architect  had  by  mistake  certified  for 
work  not  done  and  improperly  done ;  (2)  that 
his  certificate  included  extras  for  an  amount 
over  101.,  the  order  for  which  had  not  been 
countersigned  by  two  members  of  the  building 
committee;    (3)    that   the   architect   had  not 


sufficient  allowances  for  work  not  done. 
Uptkoru  v.  St.  Aubyn,  1  C.  k  E.  486— A.  L. 
butt,  J. 

—  Ooadition  Precedent.]  —  Although  the 
giring  of  a  certificate  by  the  architect  be  a  con- 
dition precedent  to  a  builder's  right  of  payment 
for  work  done,  the  bnilder  may  nevertheless  re- 
cover for  the  work  done  if  the  withholding  of  the 
certificate  be  doe  to  the  improper  interposition 
of  the  employer,  who  prevented  the  architect 
from  giving  his  certificate.  Brunsden  v.  Beret- 
fsrd,  1  C.  k  B.  125— Williams,  J. 


865     BUILDING  CONTRACTS,  LEASES,  AND  ESTATES.      266 

and  also  a  restricted  lot,  not  being  one  of  the 
first-named.  Next  year  the  unsold  lots,  together 
with  another  piece  of  land  forming  together  the 
whole  of  the  unsold  parts  of  the  estate,  were  put 
up  for  sale,  with  similar  conditions  as  to  the 
first-named  lots ;  but  as  to  other  lots  free  from 
restrictions.  All  the  lots  were  then  sold,  except 
the  first-named  lots,  both  plaintiffs  being  pur- 
chasers of  free  lots.  The  first-named  lots  were 
in  the  following  year  sold  to  the  defendant,  who 
entered  into  a  covenant  with  the  vendors  not  to 
build  houses  of  less  value  than  1,200Z.  He  now 
proposed  to  build  houses  of  less  value : — Held, 
that  the  doctrine  of  Nottingham  Patent  Brick 
and  TUe  Company  v.  Butler  (16  Q.  B.  D.  778), 
ought  to  be  extended  to  cover  the  present  case, 
and  that  the  plaintiffs  were  entitled  to  restrain 
the  defendant  from  building  houses  of  less  value. 
The  plaintiff  in  such  a  case  is  not  obliged  to 
prove  damage  in  order  to  obtain  an  injunction. 
Collins  v.  Castle,  36  Ch.  D.  243  ;  57  L.  J.,  Ch. 
76  ;  57  L.  T.  764  ;  36  W.  R.  300— Kekewich,  J. 

Assignees  of  Purchasers— Right  to  enforoe 
against  one  another.] — Sites  of  a  row  of  houses 
in  a  town  were  conveyed  by  the  same  vendors 
to  various  persons,  all  about  the  same  time,  and 
the  conveyances  were  substantially  in  the  same 
form.  In  each  case  a  rent-charge  was  reserved, 
and  the  purchasers  covenanted  that  they  would 
build  the  houses  according  to  a  plan,  and  that 
the  outside  of  the  houses  should  not  after  it  was 
finished  ever  be  altered.  The  assignees  of  a 
purchaser  were  making  an  addition  to  the  front 
of  one  house  and  the  assignees  of  the  purchaser 
of  an  adjoining  house  sought  to  restrain  the 
alteration  : — Held,  that  it  was  a  question  of  fact 
in  each  case  whether  the  restrictions  were  merely 
matters  of  agreement  between  the  vendor  and 
the  several  purchasers  for  the  protection  of  the 
vendor,  or  were  intended  to  be  for  the  common 
advantage  of  the  several  purchasers,  and  that  in 
this  case  it  was  not  shown  that  they  were  in- 
tended to  be  otherwise  than  for  the  benefit  of 
the  vendor,  and  the  plaintiffs  could  not  enforoe 
them.  Western  v.  MacDermott  (2  L.  R.  Ch.  72) 
discussed.  Sheppard  v.  GUmore,  57  L.  J.,  Ch. 
6  ;  57  L.  T.  614— Stirling,  J. 

Sights  of  Owner  —  Compensation —  "In- 
juriously affeo  ting."] — Fart  of  land  laid  out  as  a 
building  estate  was  taken  by  a  local  board  under 
an  act  incorporating  the  Lands  Clauses  Act,  1845 
(8  &  9  Vict.  c.  18),  for  the  purposes  of  a  sewage 
farm,  whereby  the  value  of  other  parts  of  the 
land  near  to  the  part  so  taken  was  depreciated, 
even  in  the  absence  of  any  nuisance  arising  from 
the  sewage  farm  when  made  : — Held,  that  the 
owner  of  the  estate  was  entitled  to  compensation 
under  the  lands  Clauses  Act,  1845  (8  &  9  Vict, 
c.  18),  s.  63,  not  only  in  respect  of  the  land  taken, 
but  also  for  damage  sustained  by  reason  of  the 
"  injuriously  affecting  "  the  other  lands  by  the 
exercise  of  the  statutory  powers.  Reg.  v.  Essex 
14  Q.  B.  D.  753  ;  54  L.  J.,  Q.  B.  459 ;  52  L.  T. 
926  ;  33  W.  R.  214  ;  49  J.  P.  87— D.  Aftirmed 
in  H.  L.,  W.  N.,  1889,  p.  76,  sub  nom.  Esscm  v. 
Acton  Local  Board. 


Where  a  building  contract 
contained  a  clause  that  no  extras  should  be  paid 
for  unless  ordered  in  writing,  and  weekly  bills 
delivered  for  the  same,  and  this  had  not  been 
done,  though  extras  had  been  executed  : — Held, 
that  the  fact  that  the  architect's  certificate  for 
the  final  balance  awarded  a  certain  sum  in  re- 
spect of  extras  did  not  entitle  the  builder  to  re- 
cover, beyond  the  certified  sum,  for  extras  in 
respect  of  which  no  written  orders  had  been 
given  nor  weekly  bills  delivered.  Brunsden  v. 
ftrtut  Local  Board,  1  C.  k  B.  272— Mathew,  J. 
And  see  Lapthorne  v.  St.  Aubyn,  supra. 

Extension  of  Time.] — A  contractor  under- 
took to  execute  works,  with  additions,  enlarg- 
ment,  Jcc.,  within  a  specified  time,  the  architect 
hiving  power  to  extend  the  time  for  completion 
in  proportion  to  the  extra  work  so  ordered. 
Additions  were  ordered  and  executed,  and  caused 
delay  in  completion  of  the  works  beyond  the 
time  specified,  but  the  architect  did  not  extend 
the  time  :— Held,  that  the  contractor  was  bound 
to  complete  the  works  within  the  time  specified 
tnd  was  liable  to  pay  damages  for  non-comple- 
tion within  the  specified  time.  Tew  v.  Newbold- 
n- Alton  District  School  Board,  1  C.  &  B.  260— 
A.  L  Smith,  J. 


II.  BUILDING  LEASES. 

Isssrvation  of  Minerals.] —  The  holder  of  a 
balding  lease,  where  minerals  are  reserved,  has 
aright  to  dig  foundations  for  buildings  about  to 
he  evected  and  dispose  of  the  materials  dug  out, 
hat  not  to  do  so  in  order  to  improve  the  surface 
si  a  building  site.  Robinson  v.  Milne,  53  L.  J., 
Ch.  1070— North,  J. 

SfitssMnt  —  Specific  Performance.]  —  The 
court  will  not  decree  the  specific  performance  of 
t  preliminary  building  agreement,  nor  give 
damages  for  the  breach  of  such  an  agreement. 
»W>.  SOeoch,  50  L.  T.  251  ;  82  W.  R.  845— 

y.-c  B. 


III.  BUILDING  ESTATES. 

lastrietive  Covenant— Bights  of  Purchaser — 
Jsjostien,]— An  estate  was  laid  out  for  build- 
iagt  and  a  great  part  of  it  had  been  sold.  In 
1882  some  of  the  unsold  part  was  put  up  for  sale 
by  taction,  with  a  condition  that  the  purchaser 
of  certain  lots  was  to  covenant  to  expend  on 
tteh  of  the  dwelling-houses  built  not  less  than 
1*3001.  As  to  some  lots  there  were  other  re- 
strictions ;  and  some  were  free  from  restriction. 
Oaeof  the  plaintiffs  bought  some  of  the  free  lots. 


267 


BUILDING    SOCIETY— Borrowing  Powers. 


268 


BUILDING  SOCIETY. 


L  Borrowing  Powers. 
IL  Mobtqage8 — Statutory  Receipt. 

III.  Shares,  Fines  and  Deductions. 

IV.  Arbitration  in  case  op  Disputes. 
V.  Accounts. 

VI.  Guarantees. 
VIL  Winding-up. 

1.  BORROWING  POWERS. 

From  non-members — By  Directors — Power  to 
Bind.] — One  of  the  rules  of  a  building  society, 
formed  under  6  &  7  Will.  4,  c.  32,  provided  that 
the  society  "is  established  for  the  purpose  of 
raising  by  monthly  subscriptions  and  deposits  on 
loans  a  fund  to  make  advances  to  members  of 
the  value  of  their  shares,"  &c.  Another  rule 
provided  that   the   directors   should   meet   at 

rifled  times,  "  for  the  purpose  of  conducting 
business  of  the  society.''  A  third  rule  pro- 
vided that  at  the  end  of  every  five  years  a 
general  account  of  the  affairs  of  the  society 
should  be  prepared,  showing  the  gross  receipts 
and  expenditure  and  liabilities,  and  that  "  if  on 
taking  the  accounts  there  appears  to  be  a 
deficiency  of  income,  by  which  the  society  may 
be  prevented  from  meeting  its  anticipated 
expenditure  and  liabilities,  the  amount  of  such 
deficiency  shall  be  equitably  and  equally  appor- 
tioned by  the  directors  between  the  investing 
and  borrowing  members,  and  be  paid  forthwith 
by  such  monthly  or  quarterly  instalments  as  the 
directors  shall  determine  "  : — Held,  that  the  first 
rule  authorized  the  borrowing  of  money  from 
persons  not  members  of  the  society ;  that  the 
second  rule  enabled  the  directors  to  exercise  the 
power ;  and  that  the  third  rule  did  not  enable 
the  directors  to  pledge  the  individual  credit  of 
the  members  to  the  lenders  of  money  to  the 
society,  but  that,  even  if  it  did,  and  was  thus 
ultra  vires,  as  being  inconsistent  with  the  nature 
of  a  building  society  under  the  act,  that  rule 
might  be  rejected,  leaving  the  borrowing  power 
unaffected : — Held,  that  the  lenders  of  money  to 
the  society  were  entitled,  on  its  being  wound  up, 
to  be  paid  out  of  the  assets  in  priority  to  any  of 
the  members.  Mutual  Aid  Permanent  Benefit 
Building  Society,  In  re,  Anson,  Ex  parte,  30 
Ch.  D.  434  ;  55  L.  J.,  Ch.  Ill ;  53  L.  T.  802 ; 
34  W.  R.  143— C.  A. 

Unlimited  Power — Deposit  of  Deeds.]  —  A 
benefit  building  society,  enrolled  under  6  &  7 
Will.  4,  c.  32,  by  its  32nd  rule  authorized  the 
directors  from  time  to  time,  as  occasion  might 
require,  to  borrow  any  sums  of  money  at  interest 
from  any  persons ;  the  borrowed  money  to  be  a 
first  charge  upon  the  funds  and  property  of  the 
society.  Under  this  rule  the  directors  borrowed 
large  sums  for  the  proper  purposes  of  the  society, 
and  deposited  with  the  lenders,  as  security,  title 
deeds  of  properties  which  had  been  mortgaged 
to  the  society  by  advanced  members : — Held, 
that  the  rule  was  valid,  and  that  the  lenders 


were  entitled  in  the  winding-up  to  payment  out 
of  the  assets,  after  satisfaction  of  the  outside 
creditors,  and  in  priority  to  the  claims  of  all 
shareholders  or  members  ;  but  that  the  lenders 
must  give  up  their  securities  to  the  official 
liquidator,  the  claim  to  special  equitable  charges 
upon  specific  properties  being  inconsistent  with 
the  true  meaning  of  the  rule,  which  was  that  all 
the  moneys  borrowed  under  it  were  to  have  the 
benefit,  equally  and  pari  passu,  of  a  first  charge 
upon  the  general  funds  and  property.  Lord 
Hatherley's  dictum  in  Laing  v.  Reed  (6  L.  R., 
Ch.  8),  as  to  an  unlimited  power  of  borrowing, 
overruled.    Murray  v.  Scott,  9  App.  Cas,  519 ; 

53  L.  J.,  Ch.  745  ;  51  L.  T.  462  ;  33  W.  R.175- 
H.  L.  (E.) 

Society  not  authorized  to  Borrow  — Over- 
drawing  Banker's  Account — Lien,] — A  benefit 
building  society  which  had  no  power  to  borrow 
money,  were  permitted  by  their  bankers  to 
overdraw  their  account  to  a  large  amount ;  and 
in  1876  a  memorandum  of  agreement  was  signed 
by  the  officers  of  the  society  and  confirmed  by 
the  directors,  stating  that  certain  deeds  of 
borrowing  members  which  had  been  deposited 
with  the  bankers  were  deposited  not  only  for 
safe  custody  but  as  a  security  for  the  balance 
from  time  to  time  due.  In  1881  an  order  for 
winding  up  the  society  was  made,  and  the 
bankers  claimed  to  retain  the  deeds  as  security 
for  the  balance  of  their  account.  No  evidence 
was  given  as  to  the  application  of  the  money 
which  was  advanced  by  the  bankers ;  but  the 
solicitors  on  both  sides  signed  an  admission  that 
some  part  was  applied  in  payment  of  members 
withdrawing  from  the  society  and  the  remainder 
in  payment  of  salaries,  legal  expenses,  and 
expenses  of  mortgaged  property  : — Held,  that 
the  overdrawing  of  the  bankers'  account  was 
ultra  vires,  being  a  borrowing  unauthorized 
either  by  the  rules  or  the  objects  of  the  society, 
and  therefore  that  the  bankers  had  no  lien  on 
the  deeds  either  under  the  agreement  or  by  the 
course  of  dealing  with  the  society.  Brooktv. 
Blackburn  Building  Society,  9  App.  Cas.  857 ; 

54  L.  J.,  Ch.  376  ;  52  L.  T.  225  ;  33  W.  R.  80»- 
H.  L.  (B.). 


-Money  paid  in  Mistake  of  Law— Bati- 


floation.] — A  benefit  building  society  which  had 
never  been  incorporated,  and  had  no  power  to 
borrow  money,  was  allowed  by  its  bankers  to 
make  large  overdrafts,  and  the  directors  of  the 
society  signed  a  memorandum  giving  the  bankers 
a  lien  upon  all  the  society's  deeds,  to  secure  all 
moneys  which  from  time  to  time  might  be  owing 
by  the  society  to  the  bankers  on  the  balance  01 
the  banking  account.  Annual  balance-sheets, 
showing  the  amounts  due  to  the  bankers,  were 
sent  to  all  the  members  of  the  society,  and 
adop'  3d  at  the  annual  meetings.  The  society 
was  iterwards  ordered  to  be  wound  up,  and  as 
the  overdrafts  were  ultra  vires,  being  a  borrowing 
unauthorized  by  the  rules,  the  official  liquidator 
brought  an  action  against  the  bankers  to  recover 
all  moneys  which  had  been  paid  to  them  by  the 
society,  and  applied  by  the  bankers  in  discbarge 
of  their  loan  to  the  society : — Held,  that  it  was 
no  answer  to  such  action  that  the  moneys  had 
been  so  applied  by  the  order  of  the  directors  of 
the  society  under  a  mistake  of  law  as  to  their 
power  to  borrow,  since  the  acts  of  the  directors, 
both  in  borrowing  and  in  directing  the  application 


269 


BUILDING    SOCIETY— Borrowing  Powers. 


270 


of  the  moneys,  were  unauthorized  and  not  bind- 
ing on  the  society.  Held,  also,  that  there  had 
bun  no  ratification  of  such  acts  of  the  directors 
by  all  the  members  of  the  society,  as  such  ratifi- 
cation could  not  be  implied  from  merely  seeing 
and  not  questioning  the  balance-sheet  accounts 
which  had  been  sent  to  them,  and  no  ratification 
cf  iuch  acts  by  the  majority  would  bind  the 
■nority  of  the  members.  The  bankers  were, 
however,  allowed  to  stand  in  the  place  of  with- 
drawing members  of  the  society  who  had  been 
said  on  notice  of  withdrawal  out  of  moneys  so 
advanced  by  the  bankers,  and  to  receive  the 
amounts  which  would  be  payable  to  such  mem- 
hot  if  they  had  not  been  paid  off.  The  bankers 
were  also  to  have  the  benefit  of  securities  obtained 
by  the  society  by  means  of  the  overdrafts  allowed 
by  the  bankers,  and  to  have  the  benefit  of  such 
securities  according  to  their  order  of  priority 
without  being  postponed  until  after  other  securi- 
ties granted  to  the  society .  Blackburn  District 
Bateft  Budding  Society  v.  Brook*,  29  Ch.  D. 
$02 ;  54  L.  J.,  Ch.  1091 ;  53  L.  T.  741—0.  A. 

lubooqnant  Powers— Deposit   Note  for 

M*Uaa-~Estoppel.]— The  directors  of  an  un- 
isosrporated  building  society  which  had  no 
bonowing  powers  borrowed  money  for  the  benefit 
of  the  society  and  gave  to  the  lender  as  security 
the  uromissory  notes  of  the  directors.  The  society 
wis  afterwards  incorporated  under  The  Building 
Societies  Act,  1874  (37  &  38  Vict.  c.  42),  and 
acquired  borrowing  powers.  The  appellant,  who 
was  the  representative  of  the  lender,  applied  to 
the  society  for  repayment  of  the  loan,  but  ulti- 
mately agreed  to  retrain  from  legal  proceedings 
ftjaiost  the  society  on  the  directors  giving  him 
*  deposit  note  for  the  amount  due.  The  directors 
soosramgly  gave  him  a  deposit  note  under  the 
fesi  of  the  society,  stating  that  the  money  was 
lest  by  the  appellant  on  the  date  of  the  deposit 
sote,  and  he  thereupon  gave  up  to  them  the  pro- 
isiswry  notes  above  mentioned  : — Held,  that  the 
deposit  note  was  not  binding  on  the  society. 
Sktffdd  Building  Society,  In  re,  Watson,  Em 

rite,  21  Q.  B.  D.  301  ;  67  L.  J.,  Q.  B.  609  ;  59 
T.  401  ;  36  W.  R.  829  ;  52  J.  P.  742— D. 

— Trustees — liabilities  of  Society  discharged 

«t  of  Borrowed  Money.]— By  rule  34  of  a  benefit 

bidding  society  it  was  provided  that  when  the 

mm  of  1002.  for  every  share  given  out,  together 

with  all  costs  and  other  expenses  of  the  society, 

wjosld  have  been  fully  paid    .    .    .    the  society 

vts  to  be  terminated,  and  the  trustees  were  to 

adone  a  receipt  on  the  mortgage  deeds,  and 

deliver  them  up  to  the  members.    This  was  an 

action  by  advanced    members  of  the  society, 

which  was  established  on  the  11th  April,  1864, 

spinet  the  trustees,  to  redeem  their  mortgages, 

uo  the  ground  that  their  monthly  instalments 

kid  all  been  paid,  all  the  unadvanced  members 

bad  been  paia  off  ;  there  was  no  valid  subsisting 

debt  or  liability,  and  the  society  terminated  on 

fit  11th  April,  1884.    There  was  no  power  for 

the  trustees  of  the  society  to  borrow,  but  the 

defendants,  with  the  assent  of  the  plaintiffs  and 

other  members  of  the  society,  borrowed  money 

far  the  purposes  of  the  society.    The  defendants 

darned  to  stand  in  the  place  of  the  persons  to 

whom  they  had  made  payments,  for  which  the 

mciftty  was  liable,  out  of  the  borrowed,  money. 

tts  court  declared,  that  if  any  of  the  officers  of 

mo  moiety  had  made  any  payments  for  which 


the  society  was  liable,  there  not  being  any  moneys 
of  the  society  out  of  which  such  payments  could 
be  made,  such  officers  were  entitled  to  stand  in 
the  place  of  the  persons  to  whom  such  payments 
were  made,  and  to  maintain  a  claim  against  the 
society  for  the  amount  of  such  payments.  Owen 
v.  Roberts,  57  L.  T.  81— Kay,  J. 


II.     MORTGAGES— STATUTORY   RECEIPT. 

Priority— Tacking.]— The  lessee  of  a  term,  in 
November,  1865,  mortgaged  it  to  the  trustees  of 
a  building  society  of  which  he  was  a  member,  to 
secure  the  payment  by  him  of  all  moneys  which 
might  become  due  from  him  pursuant  to  the 
rules  of  the  society.  In  September,  1868,  the 
lessee  of  the  term  again  mortgaged  it  to  the 

C'ntiff  to  secure  the  sum  of  702.  then  due  from 
to  the  plaintiff,  and  such  further  sums  as 
should  thereafter  be  advanced  by  the  plaintiff. 
Notice  of  the  mortgage  to  the  plaintiff  was  not 
given  to  the  building  society.  Previously  to 
June,  1875,  the  lessee  of  the  term  applied  to  the 
defendants  to  advance  to  him  the  sum  of  1502.  on 
the  security  thereof.  He  informed  them  that 
the  property  was  subject  to  the  mortgage  to  the 
building  society,  but  was  not  subject  to  any  other 
incumbrance.  In  July,  1875,  the  defendants 
paid  to  the  trustees  of  the  building  society  the 
sum  of  572. 18*.  lid.,  being  the  full  amount  due 
from  the  lessee  of  the  term,  and  thereupon  the 
trustees,  under  6  &  7  Will.  4,  c.  32,  s.  5,  signed  a 
receipt  indorsed  on  the  deed  of  mortgage  to  the 
society,  acknowledging  that  all  moneys  intended 
to  be  secured  by  the  mortgage  to  the  building 
society  had  been  paid.  In  the  same  month  the 
defendants  paid  to  the  lessee  of  the  term  the  sum 
of  922. 1*.  Id.,  being  the  balance  of  the  sum  of. 
1502.  agreed  to  be  advanced,  and  thereupon  he 
executed  a  mortgage  of  the  term  to  the  defen- 
dants to  secure  payment  of  the  sum  of  1502.  The 
lessee  of  the  term  afterwards  became  insolvent. 
The  present  action  for  foreclosure  having  been 
brought  in  a  county  court,  the  judge,  by  his 
decree,  declared  that  the  hereditaments  were 
subject,  first,  to  a  charge  of  what  might  be  due 
to  the  defendants  in  respect  of  the  572. 18#.  l}d\ 
paid  by  them  to  the  building  society  ;  secondly, 
to  a  charge  of  what  might  be  due  to  the  plaintiff 
by  virtue  of  the  mortgage  to  him  ;  thirdly,  to  a 
charge  of  what  might  be  due  to  the  defendants 
on  the  security  of  their  mortgage,  so  far  as  the 
same  might  not  be  included  in  the  first  charge : — 
Held,  that  the  priorities  were  correctly  ascer- 
tained, and  that  the  decree  of  the  county  court 
was  right.  Robinson  v.  Trevor,  12  Q.  B.  D.  423  ; 
53  L.  J.,  Q.  B.  85  ;  50  L.  T.  190  ;  32  W-  R.  374— 
C.  A. 

Per  Brett,  M.  R.,  and  Bowen,  L.  J.,  that  the 
present  case  fell  within  the  principles  laid  down 
in  Pease  v.  Jackson  (3  L.  R.,  Ch.  576).    lb. 

Per  Baggallay,  L.  J.,  first,  on  the  authority  of 
Pease  v.  Jackson  (3  L.  R.,  Ch.  576),  that  the  de- 
fendants had  the  better  equity,  and  consequently 
the  better  right  to  call  for  the  legal  estate,  and 
that  the  legal  estate  in  the  property  comprised  in 
the  mortgage  to  the  building  society  had  vested 
in  the  defendants  by  virtue  of  the  indorsed  re- 
ceipt ;  nevertheless  that  the  security  acquired 
by  the  defendants,  by  reason  of  the  legal  estate 
becoming  vested  in  them,  did  not  extend  beyond 
the  amount  advanced  by  them  to  pay  off  the 
building  society,  and  that,  as  regarded  the  fur- 


271 


BUILDING    SOCIETY— Mortgages. 


272 


ther  advance,  they  were  incumbrancers  puisne 
to  the  plaintiff  ;  secondly,  that  notwithstanding 
the  Land  Transfer  Act,  1875,  s.  129,  the  de- 
fendants, owing  to  the  Vendor  and  Purchaser 
Act,  1874,  were  precluded  from  treating  the  pro- 
perty vested  in  them  as  security  for  the  further 
sum  advanced  by  them  to  the  lessee  of  the  term. 
Fourth  City  Mutual  Benefit  Building  Society  v. 
Williams  (14  Ch.  D.  140)  commented  on.    lb. 

Land  and  four  houses  thereon  were  vested  in  a 
building  society  as  mortgagees  ;  and  on  the 
society  being  paid  off  by  the  plaintiff,  by  request 
of  the  mortgagor,  the  mortgage  deed,  with  a 
receipt  indorsed  in  accordance  with  the  42nd 
section  of  the  Building  Societies  Act,' 1874  (37  & 
38  Vict.  c.  42),  was  with  other  title-deeds  handed 
to  him,  and  the  mortgagor  shortly  afterwards 
conveyed  to  him  the  property,  on  mortgage  for  a 
larger  loan.     The  mortgagor  had  prior  to  the 

Eayment  to  the  building  society  conveyed  one 
ouse  in  fee  to  the  defendant,  who  was  ignorant 
of  the  mortgage  to  the  society,  and  he  at  once 
took  possession  of  it,  but  the  plaintiff  knew  no- 
thing of  the  sale  and  purchase : — Held,  that  the 
effect  of  the  indorsed  receipt  was  to  vest  the 
legal  estate  in  the  plaintiff,  and  to  give  him,  to 
the  extent  of  the  money  paid  to  the  society 
and  the  interest  thereon,  priority  over  the  de- 
fendant's claim.  Pease  v.  Jackson  (3  L.  B.,  Ch. 
676),  Fourth  City  Mutual  Benefit  Building 
Society  v.  Williams  (14  Ch.  D.  140),  and  Robin- 
son v.  Trevor  (12  Q.  B.  D.  423)  discussed.  Sang- 
ster  v.  Cochrane,  28  Ch.  D.  298  ;  54  L.  J.,  Ch. 
301  ;  51  L.  T.  889  ;  33  W.  R.  221  ;  49  J.  P.  327— 
Kay,  J. 

A  piece  of  land  was  mortgaged  to  a  friendly 
society,  and  by  way  of  second  mortgage  to  a 
banking  company.  A  building  society  agreed  to 
pay  off  the  first  mortgage,  and  to  make  a  further 
advance,  having  no  notice  of  the  second  mort- 
gage. Accordingly  by  a  deed  indorsed  on  the 
first  mortgage  deed,  the  first  mortgagees  recon- 
veyed  to  the  mortgagor  ;  and  by  another  deed 
he  conveyed  the  land  to  the  building  society  to 
secure  the  repayment  of  the  sum  paid  to  the 
first  mortgagees,  and  the  further  advance : — 
Held,  that  as  the  legal  estate  had  passed  by  a 
reconveyance  and  not  by  a  receipt  under  38  & 
89  Vict.  c.  60,  s.  16,  sub-s.  7,  it  was  vested  in  the 
building  society,  and  gave  them  priority  over 
the  second  mortgagees.  Robinson  v.  Trevor  (12 
Q.  B.  D.  423)  distinguished.  Carlisle  Banking 
Company  v.  Thompson,  28  Ch.  D.  398  ;  53  L.  T. 
115  ;  33  W.  R.  119— North,  J. 

H.  mortgaged  leaseholds  to  building  societies 
established  under  6  &  7  Will.  4,  c.  32,  and 
executed  a  second  mortgage  to  the  respondents. 
H.  afterwards  borrowed  a  sum  from  the  appel- 
lants, part  of  the  loan  being  applied  in  paying 
off  the  building  societies,  and  the  balance  being 
paid  directly  to  H.,  who  executed  a  mortgage  to 
the  appellants  to  secure  the  loan.  Upon  being 
so  paid  off  the  building  societies  indorsed  on 
their  respective  mortgages  receipts  to  the  mort- 
gagor in  accordance  with  6  &  7  Will.  4,  c.  32, 
s.  5,  and  delivered  the  indorsed  deeds  with  the 
title-deeds  to  the  appellants.  Neither  the  build- 
ing societies  nor  the  appellants  had  any  notice 
of  the  respondents'  mortgage.  The  respondents 
having  brought  an  action  against  the  appellants 
for  foreclosure  and  sale  : — Held,  that  the  appel- 
lants' mortgage  had  priority  over  the  respondents' 
mortgage,  not  only  in  respect  of  the  moneys  ap- 
plied in  paying  off  the  building  societies,  but 


also  in  respect  of  the  balance  of  the  loan  paid 
directly  to  H.  Pease  v.  Jackson  (3  L.  fL,  Ch. 
576)  and  Robinson  v.  Trevor  (12  Q.  B.  D.  428) 
overruled  upon  this  point.  Hosking  v.  Smith, 
13  A  pp.  Cas.  682  ;  58  L.  J.,  Ch.  367  ;  59  L.  T. 
565  ;  37  W.  B.  257— H.  L.  (E.) 

Loan  repayable  by  Instalments  and  Pre- 
miums— Interest  on  Premiums.]  —  Under  the 
rules  of  a  building  society  which  required  that 
loans  upon  a  mortgage  should  be  repaid  bj 
annual  instalments  and  premiums  spread  over  a 
certain  number  of  years,  it  was  held  that  the 
society  was  justified  in  adding  the  whole  of  the 
annual  premiums  to  the  capital,  and  charging 
interest  upon  the  combined  amount ;  and  upon 
the  borrower  redeeming  before  the  end  of  the 
period  he  was  not  entitled  to  a  rebate  in  respect 
of  the  premiums  contracted  to  be  paid.  Harvey 
v.  Municipal  Permanent  Investment  Building 
Society,  26  Ch.  D.  273  ;  53  L.  J.,  Ch.  1126 ;  51 
L.  T.  408  ;  32  W.  R.  557— C.  A. 

Payment  off— Statutory  Beceipt.] — Where  a 
borrowing  member  of  a  building  society  has  mort- 
gaged property  to  the  society  to  secure  advances, 
and  all  payments  due  from  him  to  the  society, 
and  the  society  on  payment  off  of  the  mortgage 
indorses  a  statutory  receipt  under  the  42nd 
section  of  the  Building  Societies  Act,  1874,  such 
receipt  precludes  them  from  questioning  the 
sufficiency  of  the  payment,  and  from  making 
any  further  claim  against  the  mortgagor  in  re- 
spect of  the  debt.  Sparrow  v.  Farmer  (28  L.  J., 
Ch.  537),  distinguished.    lb. 

Proof  in  Bankruptcy — Premiums.]  —  Under  ; 
a  mortgage  to  a  building  society  the  principal 
sum  advanced,  together  with  a  fixed  sum  byway 
of  premium  for  the  advance  and  interest  on  the 
amount  due,  was  payable  by  monthly  instal- 
ments : — Held,  that  the  premiums  were  not 
interest  at  all,  and  that  in  the  liquidation  of 
the  mortgagor  the  society  were  entitled  to  prove 
for  the  whole  amount  of  the  premiums,  and 
were  not  restricted  to  the  proportionate  part 
which  had  accrued  due  at  the  date  of  the  liqui- 
dation. Bath,  Ex  parte,  Phillips,  In  re,  27 
Ch.  D.  509 ;  51  L.  T.  520  ;  32  W.  R.  808— C.  A. 

Assignment  to  Person  other  than  Mortgager.] 

— A  building  society  is  not  precluded  by  the 
provisions  of  the  Building  Societies  Act,  1874 
(37  &  38  Vict,  c  42),  from  exercising  the  ordinary 
right  of  a  mortgagee  to  transfer  his  mortgage,  by 
way  of  assignment,  to  any  third  person.  Ulster 
Permanent  Building  Society  v.  Olento*,  21 
L.  B.,  Ir.  124 — Monroe,  J. 

Disputes  as  to.] — See  infra,  IV. 


III.  SHABES,   FINES,  AND   DEDUCTIONS. 

Shares  held  on  Trust — Payment  to  Begistertt 
Owner  without  Notice.] — A.  N.  was  the  registered 
owner  of  shares  in  a  building  society  which  be 
held  on  trust  for  the  plaintiff.  The  certificates 
for  the  shares  were  in  the  possession  of  the 
plaintiff,  but  the  society  never  received  any 
notice  of  her  interest  in  the  shares.  By  the 
rules  of  the  society,  the  certificates  must  be 
produced  on  withdrawal  of  the  money  invested. 
A.  N.  was  allowed  to  withdraw  the   amount 


278       BUILDING    SOCIETY— Shares,  Fines,  and  Deductions.         274 


invested  without  producing  the  certificates ;  he 
then  absconded,  and  did  not  account  to  the 
plaintiff  for  the  sums  which  he  had  received  from 
die  society : — Held,  that  the  plaintiff  could  not 
compel  the  society  to  register  her  as  the  owner 
of  the  shares,  and  credit  her  with  the  money 
paid  to  A.  N.  Xolloth  v.  Simplified  Permanent 
BnUiMg  Society,  63  L.  T.  859  :  34  W.  R.  73— 
North,  J. 

lastliitios  to  make  Deduction  from  Amount 
it  Credit  of  Member*]— The  rules  of  a 
benefit  building  society  under  the  Building 
Societies  Act,  1874,  provided  that  the  un- 
adranced  members  might  withdraw  the  sum 
at  their  credit  in  the  society's  books  after 
certain  notice.  The  society's  property  fell  in 
talne.  and  a  majority  of  the  members  passed 
a  resolution  that  Is.  6d.  per  pound  should  be 
deducted  from  the  amounts  at  the  credit  of  the 
members  and  placed  to  a  suspense  account.  No 
proceedings  for  winding  up  tne  society  had  been 
commenced ;  and  there  was  no  rule  as  to  the 
manner  in  which  losses  were  to  be  borne : — 
field,  that  the  resolution  was  ultra  vires  ;  and 
that  the  members  who  had  given  notice  of  with- 
drawal after  the  resolution  were  entitled  to  be 
paid  the  whole  amount  at  their  credit  Auld  v. 
Gtugow  Working  Men*  Building  Society,  12 
App.  Cat.  197  ;  66  L.  J.,  P.  C.  57  ;  56  L.  T.  776  ; 
SW.R.632— H.  L.  (8a) 

Intarest  on  Shares  withdrawn— Payment  of, 
it  Interval  between  last  Dividend  and  Notice 
•f  withdrawal.] — The  plaintiff  was  a  member 
and  a  shareholder  of  the  defendant  building 
meiety,  and  in  March,  1887,  was  the  holder  of 
KOf.  paid-up  investment  shares.  On  the  2nd 
March  be  gave  notice  of  withdrawal  of  1252., 
part  thereof,  at  a  month's  date,  and  that  sum 
waadnly  paid  to  him.  On  the  15th  July,  1887, 
the  directors  apportioned  to  the  paid-up  invest- 
ment shares  then  on  the  register  an  interim 
dividend  at  the  rate  of  5  per  cent,  per  annum, 
far  the  half-year  ending  the  30th  June,  1887 ; 
bit  they  refused  to  pay  any  interest  or  dividend 
to  the  plaintiff  on  the  1267.  withdrawn.    There- 

rthe  plaintiff  claimed  15*.  as  interest  on 
sum  from  the  iim  of  January,  the  date  of 
the  last  dividend,  to  the  2nd  March,  1887,  the 
date  of  notice  of  withdrawal,  at  the  rate  allowed 
on  deposits,  namely  4  per  cent,  pursuant  to 
njesld and 21  of  the  society.  The  directors  had 
pamed  the  following  resolutions,  on  the  5th 
November,  1886,  that  "subject  to  the  rules  the 
interest  allowed  on  moneys  withdrawn  do  not 
far  the  present  exceed  2\  per  cent  per  annum  ;" 
•nd  on  the  18th  February,  1887,  that  "  no  in- 
terert  be  allowed  upon  interim  withdrawals 
mttt  farther  consideration."  The  plaintiff  had 
bo  notice  of  the  resolutions.  By  rule  9  of  the 
Hciety,  **  paid-up  shares  may  be  withdrawn  or 
Rand  upon  the  terms  set  forth  in  rule  21."  By 
rue  19,  "  interest  shall  be  allowed  on  invest- 
ment shares  at  such  rates  as  the  board  shall 
from  time  to  time  fix."  By  rule  21,  '«  any  mem- 
ber may  withdraw  the  subscriptions  in  respect 
<rf  investment  shares,  subject  to  the  conditions 
•?ecined  below,  after  one  month's  notice  in 
anting.  ...  A  member  withdrawing  a  portion 
«dy  of  the  amount  at  the  credit  of  his  share 
•Meant,  shall  not  be  paid  interest  thereon  at  a 
ftte  exceeding  that  for  the  time  being  allowed 
<*  deposits.    Interest  on  all  shares  shall  cease 


at  the  date  of  notice  of  withdrawal."  For  the 
defendants  it  was  contended  that,  as  there  was 
no  contract  to  pay  interest,  the  only  interest 
the  plaintiff  was  entitled  to  was  the  interest 
fixed  by  the  board,  and  here  the  board  had  fixed 
no  interest,  and  that  the  resolution  of  the  18th 
February,  1887,  was  fatal  to  the  plaintiffs 
claim  : — Held,  that  the  plaintiff  was  entitled  to 
interest  on  the  1252.  withdrawn,  from  the  date 
of  the  last  dividend  up  to  the  date  of  notice  of 
withdrawal,  and  that  such  interest  ought  to  be 
at  the  rate  allowed  on  deposits,  namely,  4  per 
cent  Perratt  v.  London  Scottish  Permanent 
Benefit  Building  Society,  59  L.  T.  31— D. 

Fine — Compound  Interest — Advanced  Mem- 
ber.]— One  of  the  rules  of  a  building  society 
was  as  follows :  "  The  fines  incurred  by  all 
present  or  future  mortgagors,  by  neglecting  to 
make  their  monthly  payments  of  principal,  in- 
terest, fines,  and  other  payments,  will  be  at  the 
rate  of  five  per  cent  per  month  on  the  total 
amount  in  arrear "  : — Held,  that  the  monthly 
fine  was  to  be  calculated  at  the  rate  of  five  per 
cent,  per  month  on  the  amount  of  the  previous 
fines  and  other  payments  as  well  as  of  the  prin- 
cipal and  interest  in  arrear.  Held  also,  that 
the  amount  of  the  fine  was  not  unreasonable. 
Middlesborough  Building  Society,  In  re,  54 
L.  J.,  Ch.  692  ;  51  L.  T.  743  ;  49  J.  P.  278— 
Kay,  J. 

Bight  to  deduct  Income-tax  from  Repay- 
ments.]— W.  borrowed  from  a  building  society 
moneys  on  mortgage,  to  be  repaid  by  instal- 
ments, covering  principal,  interest,  and  charges 
for  working  expenses.  These  repayments  were 
regularly  made  till  W.'s  death,  in  1881.  His 
executors  claimed  to  deduct  income-tax  from 
the  remaining  instalments.  The  society  was 
subsequently  wound  up,  and  the  liquidators  re- 
fused to  allow  deductions  for  income-tax.  The 
executors,  however,  did  in  fact  deduct,  under 
protest  from  the  liquidators,  income-tax  in  re- 
spect of  repayments  since  1877.  No  mention  of 
income-tax  was  contained  in  the  rules,  and  the 
society  had  always  refused  to  allow  deductions 
in  respect  thereof.  On  summons  by  the  liqui- 
dators calling  upon  the  executors  to  pay  the 
sums  deducted  for  income-tax  : — Held,  that  the 
executors  were  entitled  to  deduct  income-tax  in 
respect  of  the  present  repayment,  and  also  from 
future  repayments,  but  only  upon  so  much  as 
represented  interest,  but  that  they  could  not  be 
allowed  to  deduct  anything  for  income-tax  in 
respect  of  past  repayments.  Middlesboraugh 
Building  Society,  In  re,  Wythes,  Ex  parte,  63. 
L.  T.  492— Kay,  J. 


IV.  ARBITRATION  IN   CASK   OF  DIS- 
PUTES. 

Mortgages— Before  Aot  of  1884.] — When  the 
rules  of  a  benefit  building  society  governed  by 
37  &  38  Vict  c.  42,  provide  for  the  settlement  by 
arbitration  of  disputes  between  the  society  and 
any  of  its  members,  the  High  Court  has  no 
jurisdiction  to  entertain  an  action  by  the  society 
against  a  member  for  moneys  due  to  it  under 
covenants  in  mortgage  deeds  executed  by  the 
member,  as  such,  to  the  society.  Wright  v. 
Monarch  Investment  Building  Society  (5  Ch.  D. 
726),  and  Hack  v.  London  Provident  Building 


275 


BUILDING    SOCIETY— Arbitration. 


276 


Satiety  (23  Ch.  D.  103),  approved.  Municipal 
Permanent  Investment  Building  Society  v.  Kent, 
tf  App.  Cas.  260  ;  63  L.  J.,  Q.  B.  290  ;  61  L.  T. 
« ;  32  W.  R.  681  ;  48  J.  P.  362— H.  L.  (E.). 

A  building  society  registered  under  the  Act  of 
1874,  by  whose  rules  it  was  provided  that  dis- 
putes between  the  society  and  any  of  its  mem- 
bers should  be  settled  by  arbitration,  sold  to  one 
of  its  members  leaseholds  mortgaged  to  it  by 
others  of  its  members.  The  mortgagors  brought 
an  action  to  set  aside  the  sale  on  various  grounds 
of  fraud  : — Held,  that  the  questions  raised  on  the 
action  were  not  compulsorily  referable  to  arbitra- 
tion, as  being  a  dispute  between  the  society  and 
some  of  its  members.  Hack  v.  London  Provident 
Building  Society  (23  Ch.  D.  103),  and  Municipal 
Permanent  Building  Society  v.  Kent  (9  App.  Cas. 
260),  distinguished.  French  v.  Municipal  Per- 
manent Building  Society,  53  L.  J.,  Ch.  743  ;  50 
L.  T.  667— Pearson,  J. 

In  1867,  the  plaintiff,  who  was  an  advanced 
member  of  a  building  society,  gave  a  mortgage 
to  the  defendants,  the  trustees  of  the  society,  to 
secure  all  such  principal  or  interest  moneys  and 
other  payments  as  he  ought  to  pay  according  to 
the  rules.    The  plaintiff  made  all  the  required 

Payments,  the  term  of  which  expired  in  1884. 
he  rules  of  the  society  provided  that  disputes 
were  to  be  referred  to  arbitration,  and  that 
when  any  advanced  member  had  made  all  his 
payments  during  the  term  they  were  to  cease 
And  the  trustees  were  to  return  his  title-deeds 
and  indorse  a  receipt ;  and  on  completion  of  bis 
term  the  member  was  entitled  to  share  in  sur- 
plus profits.  The  rules  were  silent  as  to  losses. 
After  the  advance  to  the  plaintiff  the  society 
suffered  losses,  and  the  defendants  claimed  to 
retain  the  mortgage  as  a  security  for  the  share 
of  those  losses  to  which  they  contended  the 
plaintiff  was  liable  to  contribute.  The  society 
was  not  incorporated  under  the  Building  Socie- 
ties Act,  1874.  There  were  no  outside  creditors, 
and  the  society  was  solvent.  In  an  action  by 
the  plaintiff  for  a  discharge  of  his  mortgage  and 
delivery  up  of  his  title-deeds,  and  repayment  of 
moneys  alleged  to  have  been  paid  by  him  in 
excess  of  the  proper  amount  through  mistake  of 
fact : — Held,  that  the  subject  of  the  action  was 
not  within  the  arbitration  clause,  that  the 
plaintiff  could  not  be  called  on  to  contribute  to 
losses,  and  was  entitled  to  the  relief  claimed. 
Buckle  v.  Lordonny,  56  L.  J.,  Ch.  437  ;  56  L.  T. 
273  ;  35  W.  R.  360  ;  51  J.  P.  422— Kay,  J. 

- —  After  Aot  of  1884.]— By  s.  2  of  the 
Building  Societies  Act,  1884,  unless  otherwise 
expressly  provided,  the  word  "  disputes  "  in  the 
Building  Societies  Acts,  or  in  the  rules  of  any 
society  thereunder,  shall  be  deemed  to  refer  only 
to  disputes  between  the  society  and  a  member  in 
his  capacity  of  member  of  the  society,  and  shall 
not  apply  to  any  dispute  between  any  such 
society  and  any  member  thereof  as  to  the  con- 
struction or  effect  of  any  mortgage  deed,  and 
shall  not  prevent  any  society,  or  any  member 
thereof,  from  obtaining  in  the  ordinary  course 
of  law  any  remedy  in  respect  of  any  such  mort- 
gage, to  which  he  or  the  society  would  otherwise 
be  by  law  entitled.  The  rules  of  a  building 
society  provided  that  any  dispute  arising  between 
the  society  and  any  member  thereof  should  be 
referred  to  arbitration  : — Held,  in  an  action  by 
the  society  to  recover  money  due  from  a  member 
under  a  covenant  in  a  mortgage  deed,  that  the 


words  "  any  such  mortgage  "  in  the  latter  part 
of  the  section  referred  to  any  mortgage  between 
the  society  and  one  of  its  members,  and  not  only 
to  mortgages  as  to  the  construction  or  effect  of 
which  there  was  a  dispute,  and,  therefore, 
whether  the  dispute  was  one  between  the  society 
and  a  member  in  his  capacity  of  member  of  tbe 
society,  or  not,  and  whether  it  was  a  dispute 
as  to  the  construction  or  effect  of  the  mortgage 
deed  or  not,  the  rule  did  not  apply,  and  the 
plaintiffs  were  entitled  to  proceed  with  their 
action.  Western  Suburban,  $c,  Permdment 
Benefit  Building  Society  v.  Martin,  17  Q.  B.  D. 
609  ;  65  L.  J.,  Q.  B.  382  ;  54  L.  T.  822  ;  34  W.R. 
630  ;  51  J.  P.  36— C.  A. 

Notice  of  Withdrawal— Refusal  to  Beptr.]— 
A  statement  of  claim  alleged  that  the  plaintiff 
was  an  unadvanced  member  of  the  defendant 
society,  which  was  certified  and  enrolled  pur- 
suant to  the  Statute  6  &  7  Will.  4,  c.  32,  and  up 
to  the  10th  July,  1882,  subscribed  moneys  to  the 
society  in  respect  of  three  paid-up  shares  amount- 
ing to  227/.  10*.,  which,  according  to  the  rules  of 
the  society,  were  of  the  value  of  303/.  is.  H. ; 
that  the  plaintiff  gave  notice  to  withdraw,  and 
the  defendants  refused  to  repay  the  sum  of 
303/.  4«.  id. :  —  Held,  on  demurrer,  that  the 
statement  of  claim  was  bad  ;  that  it  disclosed  a 
dispute  between  a  building  society  and  a  mem- 
ber, and  it  must  be  assumed  that  a  rule  existed 
referring  such  a  dispute  to  arbitration  pursuant 
to  10  Geo.  4,  c.  56,  a  27.  Johnson  v.  Altrineha* 
Permanent  Benefit  Building  Society,  49  L.  T. 
568  ;  48  J.  P.  24— D. 

A  member  of  a  building  society  who  had 
given  notice  to  withdraw,  brought  an  action 
to  restrain  the  society  from  distributing  any 
profits  until  the  shares  of  the  withdrawing 
members  had  been  paid.  The  rules  of  the 
society  contained  the  usual  rule  that  ail  disputes 
between  the  society  and  any  member  should  be 
referred  to  arbitration.  On  a  motion  by  the 
plaintiff  for  an  injunction,  the  court  held,  that  a 
withdrawing  member  was  still  a  member  of  the 
society  within  the  meaning  of  the  rule,  and  that 
the  dispute  not  being  as  to  the  construction  of 
any  mortgage  deed  or  any  contract  in  any 
document  other  than  the  rules  of  the  society, 
within  the  meaning  of  the  Building  Societies 
Act,  1884,  the  court  had  no  jurisdiction  to  try 
the  action  ;  on  appeal  from  this  decision : — Held, 
that  the  plaintiff  was  either  a  member  or  a 
person  claiming  by  or  through  a  member 
within  the  meaning  of  the  rule.  Walker  v. 
General  Mutual  Investment  Building  Society, 
36  Ch.  D.  777  ;  67  L.  T.  674  ;  52  J.  P.  278- 
C.  A. 

Action  against  Directors  for  Retaining 
Moneys.] — An  action  was  brought  by  a  building 
society,  registered  under  the  Building  Societies 
Acts,  against  former  directors  and  the  former 
secretary  for  an  account  of  sums  of  money 
which,  as  alleged,  they  had  received  on  behalf 
of,  and  had  not  accounted  for  to  the  society, 
but  had  appropriated  them  to  their  own  use. 
The  defendants  were  members  of  the  society, 
the  49th  rule  of  which  stated  that  in  case  of 
dispute  arising  between  the  society  and  any 
members  thereof  it  should  be  settled  by  arbi- 
tration. On  a  summons  taken  out  by  one  of 
the  defendants  asking  that  the  action  qbould  be 
stayed,  and  that  the  dispute  should  be  referred 


JTT 


BUILDING    SOCIETY— Accounts— Guarantees. 


278 


to  arbitration,  in  accordance  with  the  rule,  and 
is  paramos  of  the  Building  Societies  Act,  1884 
(W*  48  Vict  c.  41,  s.  2)  :— Held,  that  a  claim 
bf  a  society  against  its  officer  for  misappro- 
priating and  keeping  in  his  hands  moneys  of  the 
fBoety.  wis  not  a  dispute  between  the  society 
nd  a  member  thereof  "  in  his  capacity  of  a 
amber"  within  the  meaning  of  the  Building 
fetieties  Act,  1894,  and  that  the  action  ought 
oat  to  be  stayed.    Municipal  Permanent  Invest- 
mmt  B*Udi*g  Society  v.  Richards,  39  Gh.  D. 
871;  «  L.  J.,  Cb.  8;   59  L.  T.  883  ;  37  W.  B. 
IH-C.A. 

V.    ACCOUNTS. 

Awfitsd  Aaeountff— Impeaching  on  Ground  of 
Rtwi]— One  of  the  rules  of  a  building  society 
provided  for  an  annual  audit  of  accounts,  and 
that  after  the  auditing  and  signing  of  the 
accounts  the  treasurer  should  not  be  answerable 
far  mistakes,  omissions  or  errors  afterwards 
proved  in  the  accounts.  In  an  action  by 
nanbexs  against  the  treasurer  for  accounts : 
—Held,  that  though  the  audited  accounts  must 
be  icceiTed  as  prima  facie  evidence,  the  rule 
•forded  no  protection  against  the  right  of  the 
members  to  impeach  the  accounts  on  the  ground 
of fraud  Holgate  t.  Shutt,  27  Ch.  D.  Ill  ;  53 
L  J.,  Ch.  774  ;  51  L.  T.  433 ;  32  W.  K.  773— 
CA. 

—  Form  of— Settled  Accounts.]— By  the 
rales  of  a  benefit  society  it  was  provided  that  the 
accounts  should  be  audited,  and  that  after  they 
tad  been  audited  and  signed  by  the  auditors, 
the  secretary  and  treasurer  should  not  be 
answerable  for  any  mistakes,  omissions,  or  errors 
that  might  afterwards  be  proved  in  them.  By 
stal  10  Geo,  4,  c.  56,  s.  33,  it  was  directed  that 
the  accounts  of  a  society  of  this  description 
should  be  audited  by  two  or  more  members  of 
the  society.  In  December,  1883,  an  order  was 
aade  for  an  account  of  all  moneys  received  by 
&,  the  late  secretary.  S.  carried  in  audited 
aocovnts  down  to  October,  1880,  and  claimed  to 
have  them  treated  as  conclusive,  while  the 
plaintiffs  claimed  to  have  them  disregarded. 
The  Court  of  Appeal  decided  (27  Ch.  D.  Ill) 
that  accounts  audited  and  signed  according  to 
the  roles  were  primaV  facie  evidence  in  favour  of 
&,  bat  that  the  plaintiffs,  in  taking  the  accounts 
directed  by  the  order,  might  impeach  such 
udited  account]*  for  fraud.  On  examination  of 
the  audited  accounts,  it  appeared  that  they  had 
throughout  been  audited  and  signed  by  one  per- 
son only,  who  was  not  a  member  of  the  society  : 
—Held,  that  the  accounts  had  not  been  duly 
ttdited  in  accordance  with  the  statute  and 
the  rales,  and  that  the  original  order  must 
be  discharged,  but  without  prejudice  to  the 
right  of  the  defendant  to  show  that  the  accounts 
i&  question  were  to  be  treated  as  settled  accounts 
*  any  other  ground  than  that  they  were  audited 
m  accordance  with  the  statute  and  the  rules. 
&b*te  v.  Skutt,  28  Ch.  D.  Ill  ;  54  L.  J., 
<*. 436;  51  L.  T.  673 ;  49  J.  P.  228— C.  A. 


VL    GUARANTEES. 

Of  yrkr  afertgage— Ultra  Tires.]— A  building 
**«J  advanced  in  1876  to  A.,  a  member,  1,000/. 
A.  disponed  in  security  an  ex  facie  absolute  dis- 


position of  certain  subjects,  which  were  already 
burdened  by  a  prior  mortgage.  In  1879  A.'s 
estates  were  sequestrated,  and  the  directors  of 
the  society,  in  order  to  prevent  a  sale  of  the 
subjects  at  an  alleged  loss,  granted  B.  a  bond  of 
corroboration  guaranteeing  the  payment  of  his 
prior  mortgage.  In  1882  an  order  for  the  volun- 
tary winding-up  of  the  society  was  made,  and 
the  liquidators  instituted  this  action  concluding 
for  reduction  of  the  bond  of  corroboration 
granted  to  B.  as  being  ultra  vires  of  the  direc- 
tors, and  in  violation  of  the  rules  and  constitution 
of  the  society : — Held,  that  the  bond  was  ultra 
vires,  being  a  transaction  not  authorized  by  the 
rules,  and  not  incidental  to  the  conduct  of  the 
society's  business.  Small  v.  Smith,  10  App.  Cas, 
119— a  L.  (Sc.) 


VII.  WINDING-UP. 

Under  Companies  Act — Claim  against  Debtor — 
Summons.] — A  building  society  established  under 
the  Building  Societies  Act,  1874,  may  be  wound 
up  voluntarily  under  the  Companies  Acts,  1862 
and  1867.  In  such  a  winding-up  a  claim  for  the 
repayment  of  money  lent  to  the  defendant  out 
of  the  funds  of  the  society  contrary  to  its  rules 
may  be  made  by  summons.  Sunderland  32nd 
Universal  Building  Society,  In  re,  Jackson,  Em 
parte,  21  Q.  B.  D.  349 ;  37  W.  R.  95— D. 

Unincorporated  Society — Dismissal — Appeal — 
Subsequent  Incorporation.]— A  petition  for  a 
compulsory  winding-up  of  a  building  society  was 
presented  in  the  Chancery  Court  of  the  County 
Palatine  of  Lancaster.  The  society  was  estab- 
lished under  the  Building  Societies  Act,  1836, 
and  at  the  date  of  the  presentation  of  the  petition 
it  had  not  become  incorporated  under  the 
Building  Societies  Act,  1874.  The  winding-up 
petition  was  therefore  presented  in  the  Court  of 
Chancery  under  the  provisions  of  part  8  of  the 
Companies  Act,  1862.  The  petition  was  dis- 
missed and  notice  of  appeal  was  given.  Between 
the  date  of  the  notice  of  appeal  and  the  hearing 
the  society  obtained  a  certificate  of  incorporation 
under  the  Building  Societies  Act,  1874.  On  the 
hearing  of  the  appeal  the  objection  was  taken 
that  the  Court  of  Appeal  had  no  longer  juris- 
diction over  the  society  : — Held,  that  the  objec- 
tion was  fatal  to  the  appeal,  and  that  it  must  be 
dismissed.  Old  Swan,  jc,  Benefit  Building 
Society,  In  re,  Dvatt,  Em  parte,  57  L.  T.  381— 
C.  A. 

Borrowing  Members  and  Losses  inter  se.]— 
The  rules  of  a  benefit  building  society  provided 
that  borrowing  members  who  have  given  herit- 
able securities  for  an  advance  could  redeem  their 
bonds  either  by  (1)  giving  three  months1  notice 
that  they  renounce  their  shares,  and  paying  the 
amount  of  the  advance  under  deduction  of  in- 
stalments paid  and  interest  thereon  ;  or  (2)  by 
payment  of  the  whole  sum  borrowed,  retaining 
their  shares ;  and  that  when  the  subscriptions 
with  the  share  of  profits  of  such  members  were 
equal  to  the  amount  advanced,  then  their  pay- 
ments and  connexion  with  the  society  were  to 
cease.  In  1884,  losses  having  occurred,  the 
society  was  ordered  by  the  court  to  be  wound 
up.  There  were  no  outside  creditors  : — Held, 
that  the  case  was  governed  by  Brottmlie  v. 
Russell  (8  App.  Cas.  235),  and  that  the  borrowing 


■■ 


279 


BUILDING    SOCIETY— Winding-up. 


280 


members  were  entitled  to  have  their  securities 
discharged  in  the  terms  of  the  rales  and  were 
not  bound  to  remain  members  and  bear  a  share 
of  the  losses  incurred  by  the  society.  Tosh  v. 
North  British  Building  Society,  11  App.  Cas. 
489  ;  35  W.  R.  413— H.  L.  (Sc.). 

Priority  —  Preference  8har©8  —  Unadvanoed 
Members.] — A  benefit  building  society,  enrolled 
under  6  &  7  Will.  4,  c.  32,  by  its  31st  rule 
authorized  the  board  to  issue  deposit  or  paid-up 
shares  for  302.  each  at  5  per  cent,  interest,  with 
the  right  of  withdrawing  the  whole  or  part  of 
the  deposit  upon  notice  in  preference  to  all  other 
shares.  This  rule  was  struck  out  by  the  certifying 
barrister,  but  the  directors  printed  and  acted 
upon  it  by  issuing  shares  accordingly.  Some 
years  afterwards  the  rule  was  amended,  by 
altering  30/.  into  \L,  and  the  amendment  was 
certified  by  the  barrister ;  and  those  who  had 
taken  30Z.  shares  had  them  exchanged  for  11. 
shares,  and  other  11.  shares  were  issued  to  new 
shareholders.  The  moneys  paid  by  these  share- 
holders were  applied  for  the  purposes  of  the 
society  : — Held,  that  such  shareholders,  whether 
they  had  become  so  before  or  after  the  amend- 
ment was  certified,  and  whether  they  had  given 
notice  of  the  withdrawal  or  not,  were  entitled  to 
be  paid  in  the  winding-up  in  preference  to  the 
unadvanced  members.  Murray  v.  Scott,  9  App. 
Cas.  619  ;  53  L.  J.,  Ch.  746  ;  51  L.  T.  462 ;  33 
W.  R.  173— H.  L.  (B.). 

Depositors  —  Outside  Creditors  —  Notice 

of  Withdrawal.] — A  registered  company,  carrying 
on  business  in  the  nature  of  that  of  a  building 
society,  had  power  to  receive  money  by  way  of 
deposit  from  any  person  or  partnership.  Deposits 
were  withdrawable  upon  giving  a  certain  notice, 
according  to  the  amount  thereof.  In  December, 
1881,  C.  deposited  3002.  with  the  company,  upon 
which  interest  was  duly  paid  until  June,  1884. 
In  December,  1884,  C.  gave  notice  that  he 
required  to  withdraw  his  deposit,  but  the  same 
was  not  repaid,  nor  was  any  date  fixed  for  its 
repayment.  In  January,  1886,  a  petition  was 
presented  for  the  winding-up  of  the  company, 
and  it  was  accordingly  ordered  to  be  wound  up. 
The  question  arose  whether,  in  the  distribution 
of  the  funds  of  the  company,  C.  and  all  other 
unpaid  depositors  who  had  given  notice  of  with- 
drawal of  their  deposits  before  the  date  of  the 
presentation  of  the  petition,  were  entitled  to  rank 
as  creditors  of  the  company  in  priority  to  those 
depositors  who  had  not  given  such  notice  at  that 
time : — Held,  that  there  was  no  priority  as 
between  the  depositors,  or  between  them  and  the 
outside  creditors,  but  that  they  must  all  rank 
pari  passu.  Progressive  Investment  and  Build' 
ing  Society,  In  re.  Corbold,  Ex  parte,  54  L.  T. 
45—  Chitty,  J. 

The  rules  of  a  benefit  building  society  allowed 
any  investing  member  to  withdraw  "  provided 
the  funds  permit,"  upon  giving  notice  ;  and 
declared  that  "no  further  liabilities  shall  be 
incurred  by  the  society  till  such  member  has  been 
repaid."  The  society  was  ordered  to  be  wound 
up  and  the  assets  were  insufficient  to  pay  every- 
body : — Held,  that  those  investing  members  who 
had  given  notice  of  withdrawal,  and  whose 
notices  had  expired  before  the  winding-up  began, 
were  entitled  to  be  paid  out  of  the  assets  (after 
the  outside  creditors)  in  priority  to  those  members 
who  had  not  given  notice  of  withdrawal,  not- 


withstanding the  fact  that  between  the  giving 
of  the  notices  and  the  winding-up  there  never 
were  any  funds  for  payment.  Walton  v.  Edge, 
10  App.  Gas.  33  ;  54  L.  J.,  Ch.  362  ;  52  L.  T.  666 ; 
33  W.  R.  417 ;  49  J.  P.  468— H.  L.  (B.). 

The  rules  of  a  building  society  provided  that 
any  member  desirous  of  withdrawing  should,  by 
giving  a  month's  notice  in  writing,  be  entitled 
to  receive  back  his  subscription  money  in  the 
manner  therein  mentioned ;  that  members  with- 
drawing whose  shares  were  fully  paid  up,  should 
be  entitled  to  5  per  cent,  interest  from  the  time 
such  shares  were  so  paid  up,  or  from  the  time 
the  previous  dividend  was  paid ;  and  that  if  more 
than  one  member  should  give  notice  to  withdraw 
they  should  be  paid  in  rotation  according  to  the 
priority  of  their  notices.  The  society  was  ordered 
to  be  wound  up  under  the  Companies  Acts,  and 
at  the  date  of  the  winding-up  the  shareholders 
consisted  of  three  classes,  viz.,  (1)  members  who 
gave  early  notices  of  withdrawal  of  their  shares, 
and  who  claimed  to  be  paid  out  of  the  assets  in 
priority  to  those  who  gave  later  notices;  (2) 
members  who  gave  later  notices  and  who  claimed 
that  all  the  withdrawing  members  should  be  paid 
pari  passu ;  and  (3)  members  who  gave  no  notices : 
—Held,  that  the  principle  of  Walton  v.  Edge 
(supra)  applied,  and  that  the  members  who  gave 
notice  of  withdrawal  prior  to  the  commence- 
ment of  the  winding-up  were  entitled  to  he 
repaid  the  amount  of  their  shares  in  priority  to 
the  other  members  according  to  the  respective 
dates  of  their  notices  : — Held,  also,  that  such  of 
the  members  whose  shares  were  fully  paid  up  at 
the  dates  of  their  respective  notices  were  en- 
titled to  be  paid  interest  on  the  amounts  due  to 
them  in  the  same  order  of  priority,  from  the 
times  when  such  shares  were  fully  paid  up,  or 
from  the  times  of  the  payment  of  the  last 
dividend  until  the  times  of  the  payment  of  the 
amounts  due  to  them.  Middlesborough  Building 
Society,  53  L.  T.  203— Kay,  J. 

Bights  of  Lenders  who  were  not  Mem- 


bers.]— See  cases  ante,  cols.  267,  268. 


BUILDINGS. 

In  Metropolis.]—/^  Metropolis. 
In  Other  Places.]— See  Health. 


BURGESS. 


See    CORPORATION. 


BURIAL. 

See  ECCLESIASTICAL  LAW. 


281 


BYE-LAWS— CARRIERS. 


282 


BYE-LAWS. 

Fireesonableness — intra  Vires.] — A  bye-law 
not  ultra  Tires  because  in  certain  circum- 
it  may  have  the  effect  of  taking  away  an 
enjoyment  of  property  for  which  alone  that  pro- 
perty was  acquired  and  used.  A  bye-law  cannot 
be  treated  as  unreasonable  merely  because  it 
does  not  contain  qualifications  which  commend 
themselves  to  the  minds  of  judges.  Slattery  v. 
Nailer,  15  App.  Cas.  446  ;  57  L.  J.,  P.  C.  73  ; 
59  L  T.41 ;  36  W.  R.  897— P.  C. 

For  Begulation  of  Markets.]— See  Market. 

Mm  to  Attendance  at  Board  Schools.] — See 
School. 

For  Navigation  of  Biver.]— See  Wateb. 

Uaiar  Commons  Act,  1876.] — See  Commons. 

For  Preaervation  of  Salmon.]—  See  Fish  and 


Vndar  Cemeteries  Clauses  Act] — See  Eccle- 
siastical. Law  (Burial). 

Vmdar  Local  Government  Act.] — See  Health. 

Under    Metropolitan    Building    Act.]  —  See 
Metropolis  (Buildings). 

Vndar  Public  Health  Act.] — See  Health. 

Under   Municipal  Corporations  Aot]  —  See 
Corporation. 

Under  Tramways  Act.] — See  Tramways. 


CALLS. 


See  COMPANY. 


CAMPBELL'S  (LORD)  ACT. 

See  NEGLIGENCE. 


CANADA. 

See  COLONY. 


CAPE  OP  GOOD  HOPE. 


See  COLONY. 


CARGO. 

See  SHIPPING. 


CANAL. 

See  WATER. 


CARRIERS. 

I.  Passengers. 
II.  Passenger's  Luggage. 

III.  Goods  and  Animals. 

IV.  Remuneration  and  Lien. 

V.  Carriers  Act. 

VI.  Railway  and  Canal  Traffic  Act, 
1854. 

1.  Just  and  Reasonable  Conditions. 

2.  Undue  Preference. 

VII.  Railway  Commissioners.— &*  Rail- 
way. 

I.  PASSENGERS. 

Dnty  of  Carrier— Construction  of  Carriage!.] 
— The  duty  of  a  carrier  who  manufactures  his 
own  carriages  towards  passengers  whom  he 
carries  is  to  use  due  skill  and  care  in  the  manufac- 
ture. If  injury  occur  through  imperfect  con- 
struction, the  onus  is  on  the  carrier  to  show  that 
such  due  skill  and  care  has  in  fact  been  exercised. 
Holton  v.  London  and  South- Western  Railway, 
1  C.  k  E.  542— Lopes,  J. 

Condition  of  Line — Latent  Defect] — 

Where  an  accident  happened  on  a  railway  com- 
pany's line,  owing  to  a  latent  defect  in  a  foreign 
truck  which  could  not  have  been  detected  by  the 
ordinary  examination  : — Held,  that  as  the  facts 

S  roved  were  as  consistent  with  the  exercise  of 
ue  and  reasonable  care  as  with  negligence,  the 
plaintiff  must  be  nonsuited.  Gilbert  v.  North 
London  Railway,  1  C.  &  E.  31— Field,  J. 

Evidence  of  Negligence — Injury  proximately 
caused  by  Passenger's  own  conduct.] — E.  was 
a  passenger  on  the  defendant's  railway,  when  an 
accident  happened  to  the  engine  by  reason  of 
the  connexion-rod  breaking.  The  compartment 
in  which  K.  was  travelling  was  filled  with  smoke, 
and  some  pebbles  were  dashed  against  the  win- 
dows. A  man,  in  the  compartment  with  E.,  said 
that  the  train  was  on  fire.  E.  jumped  out  and 
was  injured.  The  learned  judge,  at  the  trial, 
directed  a  verdict  for  the  defendants,  on  the 
ground  that  there  was  no  evidence  of  negligence, 


283 


CAREIERS— Passengers. 


284 


and  that  even  if  there  was  negligence,  it  was 
not  the  cause  of  the  injury  complained  of.  The 
plaintiff  having  obtained  a  conditional  order  for 
a  new  trial: — Held,  that  the  injury  to  the  plaintiff 
was  not  the  result  of  any  negligence  by  the  de- 
fendants, and  that  the  direction  of  the  learned 
judge  at  the  trial  was  right.  Kearney  v.  Great 
Southern  and  Western  Railway ,  18  L.  R.,  Ir.  303 
— Q.  B.  D. 

Accidents  at  Level  .Crossings.]  —  See  Neg- 
ligence. 

Ticket — Liability  for  Injury — "Loss  or 
Damage."] — The  personal  representatives  of  a 
deceased  man  cannot  maintain  an  action  under 
Lord  Campbell's  Act  (9  &  10  Vict.  c.  93),  where 
the  deceased,  if  he  had  survived,  would  not  have 
been  entitled  to  recover.  The  defendants,  a 
steamship  company,  issued  a  passenger's  ticket, 
which  contained,  amongst  others,  the  following 
conditions  : — "  The  company  will  not  be  respon- 
sible for  any  loss,  damage  or  detention  of  luggage 
under  any  circumstances.  .  .  .  The  company  will 
not  be  responsible  for  the  maintenance  of  pas- 
sengers, or  for  their  loss  of  time  or  any  conse- 
quence arising  therefrom  .  .  .  nor  for  any  delay 
arising  out  of  accidents ;  nor  for  any  loss  or 
damage  arising  from  the  perils  of  the  sea,  or 
from  machinery,  boilers  or  steam,  or  from  any 
act,  neglect  or  default  whatsoever  of  the  pilot, 
master  or  mariner : " — Held,  that  the  words  "  loss 
or  damage  arising  from  the  perils  of  the  sea," 
as  contained  in  the  above  conditions,  exempted 
the  defendants  from  liability  for  injury  or  loss 
of  life  to  a  passenger  occasioned  on  the  voyage 
by  the  negligence  of  the  defendants'  servants. 
Haigh  v.  Royal  Mail  Steam  Packet  Company, 
52  L.  J.,  Q.  B.  640  ;  49  L.  T.  802 ;  48  J.  P.  230  ; 
5  Asp.  M.  C.  189— C.  A. 

Failure  to  produce  —  Condition  Incor- 
porated—Faroeable  fiemoval  from  Carriage.]— 
The  plaintiff  was  a  passenger  by  the  defendants' 
railway.  The  ticket  issued  to  him  incorporated 
by  reference  certain  conditions  published  in  the 
defendants'  time-tables,  one  of  which  was  that 
every  passenger  should  show  and  deliver  up  his 
ticket  to  any  duly  authorized  servant  of  the 
company,  when  required  to  do  so  for  any  pur- 
pose, and  any  passenger  travelling  without  a 
ticket,  or  failing,  or  refusing  to  show  or  deliver 
up  such  ticket  as  aforesaid,  should  be  required 
to  pay  the  fare  from  the  station  whence  the  train 
originally  started.  The  plaintiff  having  lost  the 
ticket  was  unable  to  produce  it  when  required  to 
do  so  during  the  journey  by  one  of  the  defen- 
dants' servants.  The  plaintiff  was  thereupon 
required  to  pay  the  fare  from  the  station  whence 
the  train  had  started,  and,  on  his  declining  to  do 
so,  was  forcibly  removed  by  the  defendants' 
servants  from  the  carriage  in  which  he  was  tra- 
velling, no  more  force,  however,  being  used  than 
was  necessary  for  his  removal.  He  thereupon 
sued  the  defendants  for  assault :  — Held,  that 
the  contract  between  the  plaintiff  and  the  defen- 
dants did  not  by  implication  authorize  the  de- 
fendants to  remove  the  plaintiff  from  the  carriage 
on  his  failing  to  produce  a  ticket  and  refusing  to 
pay  the  fare  as  provided  by  the  condition ;  that 
the  defendants  were  not  justified  in  so  removing 
him  ;  and  that  the  action  was  therefore  main- 
tainable. Butler  v.  Manchester,  Sheffield  and 
Lincolnshire  Railway,  21  Q.  B.  D.  207  ;  57  L.  J., 


Q.  B.  564  ;   60  L.  T.  89  ;  36  W.  R.  726  ;  52  J.  P. 
611— C.  A. 

Unpunotuality— Effect  of  Conditions  and  tine 
Bills — Through     Communication— Damages.]— 

The  plaintiff  took  four  third-class  tickets  at  the 
defendants'  station  at  Durham  by  the  2.11  am. 
train  for  Belfast  via  Leeds  and  Barrow,  which 
was  printed  on  the  tickets,  and  it  was  farther 
stated  that  they  were  "  issued  subject  to  regula- 
tions in  time-table."    At  the  end  of  the  time 
bills  there  were  a  number  of  pages  entitled 
"  Connexion  with  other  railways,"  and  one  xrf 
such  pages  was  printed  "  Through  communica- 
tion between  the  North-Eastern  I  one  and  Ireland. 
Belfast  via  Leeds  and  Barrow,"  from  which  it 
appeared  that  the  2.11  p.m.  train  should  arrive 
at  Leeds  at  4.45,  and  leave  there  at  5.10  by  the 
Midland  Company's  line.    The  Midland  Com- 
pany's station  at  Leeds  adjoins  the  North-Eastern 
station,  but  is  a  separate  building.    The  train  by 
which  the  plaintiff  and  his  family  travelled iid 
not  reach  Leeds  till  5.22,  or  thirty-seven  minutes 
late,  and  the  Midland  Company's  train  having 
left  at  the  proper  time,  the  plaintiff's  family 
were  unable  to  proceed  to  Belfast  that  night, 
and  were  compelled  to  put  up  at  an  hotel  at 
Leeds.    The  conditions  in  the  defendant's  time- 
tables comprised   the  following  : — ''The  hoars 
stated  in  these  time-tables  are    appointed  as 
those  at  which  it  is  intended,  as  far  as  circum- 
stances will  permit,  the  passenger  trains  should 
arrive  at  and  depart  from  the  several  stations ; 
but  their  departure  or  arrival  at  the  times  stated, 
or  the  arrival  of  any  train  passing  over  any  por- 
tion of  the  company's  lines  in  time  for  any 
nominally  corresponding  train  passing  over  any 
portion  of  their  lines,  is  not  guaranteed ;  nor 
will  the  company,  under  any  circumstances,  be 
held  responsible  for  delay  or  detention,  howe?er 
occasioned,  or  any  consequences  arising  there- 
from.   The  issuing  of  tickets  to  passengers  to 
places  off  this  company's  lines  is  an  arrangement 
made  for  the  greater  convenience  of  the  public ; 
but  the  company  will  not  be  held  responsible 
for  the  non-arrival  of  this  company's  own  trains 
in  time  for  any  nominally  corresponding  train 
on  the  lines  of  other  companies,  nor  for  any 
delay,  detention,  or  other  loss  or  injury  what* 
soever  which  may  arise  therefrom,  or  off  their 
lines."     In  an  action  brought  in  the  county 
court  to  recover  the  expenses  to  which  the  plain- 
tiff had  been  put  by  an  alleged  breach  of  con- 
tract on  the  part  of  the  defendants  : — Held,  that 
inasmuch  as  the  conditions  formed  part  of  the 
contract,  and   the    true    construction  of  such 
conditions  was  that  the  defendants  refused  to 
guarantee  the  punctuality  of  their  trains  accord- 
ing to  the  times  mentioned  in  the  tables,  from 
whatever  cause  the  irregularity  or  want  of  punc- 
tuality might    arise,    the    plaintiff    could  not 
succeed.    Mc  Car  tan  v.  North' Eastern  Railway, 
54  L.  J.,  Q.  B.  441— D. 


Delay— Wilful     Misconduct.]— Plaintiff 


took  a  return  first-class  ticket  from  Paddington  to 
Bridgnorth,  a  station  on  a  branch  of  the  defen- 
dants' main  line,  intending  to  travel  by  a  train 
advertised  to  run  through  without  interruption. 
There  were  printed  on  the  face  of  the  return 
half  of  the  ticket  the  words  "  See  back,"  and  on 
the  back  of  each  half  the  words  "  Issued  subject 
to  the  conditions  stated  on  the  company's  time 
bills."    The  tame  bills  wexa published  month!/ 


285 


CARRIERS — Passenger's  Luggage. 


286 


in  i  book  of  about  one  hundred  pages,  and  on 
the  fist  or  outside  page  was  a  notice  headed 
"Train  bills,"  that  the  company  would  not  be 
accountable  for  injury  which  might  arise  from 
delays,  unless  in  consequence  of  the  wilful  mis- 
conduct  of  the  company's  servants.     On  the  day 
of  the  plaintiffs  journey,  being  Christmas  Eve, 
there  was  an  usually  large  number  of  persons 
travelling  on  the  defendants'  lines.  The  weather 
was  foggy,  and  some  five  hours  earlier  there  had 
been  a  collision  between  two  trains  on  the  main 
line.    The  advertised  train  was  divided  into  two 
puts,  and  the  plaintiff  was  put  into  the  second 
part,  which  started  thirteen  minutes  late  ;  it  was 
also  delayed  by  the  fog  and  the  excessive  traffic 
on  the  journey.    In  consequence  the  plaintiff 
missed  the  train  which  was  advertised  to  run 
along  the  branch  in  connexion  with  the  main 
line  tssin.    He  was  detained  at  the  junction, 
where  there  was  but  little  accommodation,  and 
being  refused  a  special  train,  proceeded  at  his 
own  request  in  a  carriage  attached  to  a  goods 
train.     This   carriage    was   second-class,    the 
statKHMnaster  at  the  junction  having  no  first- 
clam  carriage  available.    The  plaintiff's  journey 
took  about  ten  hours  instead  of  six  hours  as 
advertised.    In  a  county  court  action,  on  proof 
of  these  facta  and  the  evidence  of  a  letter  from 
the  defendants  to  another  passenger  by  the  same 
tain,  forwarding  a  sum  of  money  demanded  for 
compensation,  the  judge  awarded  the  plaintiff 
U.  damages  for  the  delay  and  inconvenience  he 
saffered : — Held,  that  the  conditions  on  the  time 
bills  were  incorporated  in  the  plaintiff's  contract 
with  the  company ;  that  there  was  no  evidence 
suder  the    circumstances   of    the   defendants' 
wilful  misconduct,  or  of  their  liability ;  and  that 
the  county  court  judge  was  wrong.     Woodgate 
r.  Gtmt  Western  Railway,  51  L.  T.  826 ;  33  W. 
B.48 ;  49  J.  P.  196— D. 


H.     PASSENGERS    LUGGAGE. 

Iwd  Tnggage  Delivery  to  Porter— ITegli- 
|wass.] — The  female  respondent  arrived  at  the 
raddmgton  station  on  the  appellants'  railway  at 
4-»  fjl  on  Christmas  Eve  with  a  bag  and  two 
other  articles  of  luggage,  in  order  to  travel  by 
the  5  pjl  train.  A  porter  labelled  the  two 
tracks  and  took  all  the  luggage  to  the  platform, 
the  train  not  then  being  at  the  platform.  The 
female  respondent  told  the  porter  she  wished  the 
hag  to  be  put  into  a  carriage  with  her  and  asked 
if  it  would  be  safe  to  leave  it  with  him.  He  re- 
ared that  it  would  be  quite  safe,  and  that  he 
voald  take  care  of  the  luggage  and  put  it  into 
the  tain.  She  then  went  to  meet  her  husband 
•ad  get  her  ticket.  Ten  minutes  after  she  had 
jeftthe  luggage  she  and  her  husband  returned 
together  to  the  platform  and  found  that  the  two 
labelled  articles  had  been  put  into  the  van  of  the 
tain  but  that  the  porter  and  the  bag  had  dis- 
appeared. In  an  action  in  the  county  court 
■gainst  the  railway  company  for  the  loss  of  the 
■f  the  judge  found  that  the  time  when  the 
l*9Pge  was  entrusted  to  the  porter  was  a  reason- 
*We  and  proper  time  before  the  departure  of  the 
taw*  and  that  the  porter  was  guilty-  of  negli- 
fesee  in  not  being  in  readiness  to  put  the  bag 
■*»  the  carriage  when  the  female  respondent 
fe^ned,  and  held  the  company  liable  -.—Held 
(bed  Bramwell  dissenting),  that  there  was 
"ttnee  upon  which  the  county  court  judge1 


might  reasonably  find,  first,  that  the  bag  was  in 
the  custody  of  the  railway  company  for  the  pur- 
poses of  present  and  not  of  future  transit  from 
the  time  when  it  was  delivered  to  their  porter 
until  its  disappearance,  and  secondly  that  its 
loss  was  due  to  their  negligence.  Great  Western 
Railway  v.  Bunch,  13  App.  Cas.  31  ;  57  L.  J., 
Q.  B.  361  ;  58  L.  T.  128  ;  36  W.  R.  785  ;  52  J.  P. 
147— H.  L.  (E.). 

Semble  (Lord  Bramwell  dissenting),  that  a 
railway  company  accepting  passengers'  luggage 
to  be  carried  in  a  carriage  with  the  passenger, 
enter  into  a  contract  as  common  carriers,  subject 
to  this  modification,  that  in  respect  of  his  inter- 
ference with  their  exclusive  control  of  his  lug- 
gage, the  company  are  not  liable  for  any  loss  or 
injury  occurring  during  its  transit,  to  whioh  the 
act  or  default  of  the  passenger  has  been  contri- 
butory. The  reasoning  in  Rergheim  v.  Great 
Eastern  Railway  (3  C.  P.  D.  221)  disapproved. 
lb. 

Luggage  in  Van — Delivery  to  Passenger — 
Termination  of  Bisk.]— It  is  the  duty  of  a  rail- 
way company,  with  regard  to  the  luggage  of  a 
passenger  which  travels  by  the  same  train  with 
him,  but  not  under  his  control,  when  it  has 
reached  its  destination,  to  have  it  ready  for 
delivery  upon  the  platform  at  the  usual  place  of 
delivery  until  the  owner,  in  the  exercise  of  due 
diligence,  can  receive  it ;  but  the  liability  of  the 
company  as  carriers  will  cease  after  a  reasonable 
time  has  been  allowed  to  the  owner  to  do  so. 
Firth  v.  North  Eastern  Railway,  36  W.  B.  467 
— D. 

The  plaintiff  arrived  at  a  station  on  the  defen- 
dants' railway  with  her  luggage  contained  in  two 
boxes,  which  were  taken  from  the  luggage-van 
by  a  porter  in  the  employ  of  the  company.  The 
porter  asked  the  plaintiff  if  he  should  engage  a 
cab  for  her.  In  reply  she  said  she  would  walk 
to  her  destination,  and  would  leave  her  luggage 
at  the  station  for  a  short  time,  and  send  for  it. 
The  porter  said  :  "  All  right;  I'll  put  them  on 
one  side  and  take  care  of  them  ; "  whereupon  the 
plaintiff  quitted  the  station,  leaving  her  boxes  in 
the  custody  of  the  porter.  One  of  them  was 
lost : — Held,  that  the  transaction  amounted  to  a 
delivery  of  the  luggage  by  the  company  to  the 
plaintiff,  and  a  re-delivery  of  it  by  her  to  the 
porter  as  her  agent  to  take  care  of,  and  that 
consequently  the  company  were  not  responsible 
for  the  loss.  Patscheider  v.  Great  Western 
Railway  (3  Ex.  D.  153)  distinguished.  Hod* 
kinson  v.  London  and  North-  Western  Railway, 
14  Q.  B.  D.  228  ;  32  W.  R.  662— D. 

Loft  in  Porter's  charge— Absence  of  Passenger 
from  Station— Authority  of  Porter.]— A  pas- 
senger having  missed  his  intended  train,  left  his 
luggage  on  the  platform  in  charge  of  a  porter, 
saying  that  he  would  travel  by  the  next  train. 
This  train  was  timed  not  to  start  for  an  hour. 
He  left  the  station  and  went  into  the  billiard* 
room  of  an  hotel  for  that  interval.  His  luggage 
was  afterwards  missed : — Held,  that  luggage  so 
left  was  not  taken  charge  of  by  the  porter  on 
behalf  of  the  company  for  carriage,  but  was 
watched  by  the  porter  on  his  own  responsibility. 
Semble,  that  the  company  would  nave  been 
liable  if  the  plaintiff  had  on)y  gone  to  some 
other  part  of  the  same  station  for  a  purpose 
strictly  necessary  to  travelling  (such  as  to  take 


i 


1 


287 


CARRIERS — Goods  and  Animals. 


288 


-a  ticket),  and  for  a  brief  period.  Welch  v. 
London  and  North  Western  Railway,  34  W.  R. 
166— D. 

Condition  exempting  from  Liability  —  Non- 
delivery.]— A  passenger  from  Southampton  to 
Colon,  on  board  a  steamship  of  the  defendant's, 
had  signed  a  ticket  containing  a  condition  that 
"the  company  will  not  be  responsible  for  any 
loss  or  damage  to  luggage  in  any  circumstances," 
and  that  the  company  should  be  at  liberty  to 
land  any  passenger  suffering  from  infectious 
disease.  Some  days  after  sailing,  the  plaintiff 
fell  ill  of  typhoid  fever  and  was  landed  at 
Jamaica  in  an  insensible  condition.  His  box 
was  also  landed  by  the  defendants,  but  the 
plaintiff  never  saw  it  again  : — Held,  in  an  action 
to  recover  damages  for  the  loss,  that  the  defen- 
dants were  not  liable.  Thompson  v.  Royal  Mail 
Steam  Packet  Company ',  5  Asp.  M.  C.  190,  n. 
— Exch. 

"Just  and  Reasonable  Conditions."]  —  See 
Cutler  v.  North  London  Railway,  post,  col.  294. 

Cloak  Room— Condition— Misdelivery.]— The 
owner  of  a  bag  exceeding  the  value  of  5Z. 
deposited  it  in  a  railway  cloak-room  and  re- 
ceived a  ticket  with  the  following  condition  : — 
"  The  company  are  not  to  be  answerable  for  loss 
of  any  article  exceeding  the  value  of  52.  unless 
at  the  time  of  delivery  the  true  value  be  de- 
clared and  a  sum  at  the  rate  of  Id.  for  every  20*. 
of  the  declared  value  be  paid  for  such  article," 
above  the  ordinary  charge.  The  bag  was  de- 
livered by  mistake  to  a  wrong  person  and  never 
recovered  : — Held,  that  the  word  "  loss  "  included 
misdelivery  and  that  the  defendants  were  not 
liable.  Skipwith  v.  Great  Western  Railway, 
59  L.  T.  620— D. 


III.    GOODS  AND  ANIMALS. 

Common  Carriers — Who  are.] — The  question 
whether  the  liability  of  a  common  carrier  has  been 
undertaken  in  a  particular  case  is  one  of  fact  and 
not  of  law.  Tamvaco  v.  Timothy,  1  C.  &  E.  1 — 
Cave,  J.  And  see  Cutler  v.  North  London  Rail- 
way, post,  col.  294. 

Hot  forwarding  Goods — Reasonable  Facilities 
— Late  Arrival  of  Goods.] —  An  action  was 
brought  against  a  railway  company  for  non- 
delivery of  goods  within  a  reasonable  time.  The 
goods,  which  consisted  of  poultry  in  four  hampers, 
arrived  at  the  station  at  one  minute  after  11 
o'clock,  the  train  by  which  they  were  to  be  for- 
warded being  advertised  to  leave  at  11,  so  that 
the  goods  arrived  after  the  advertised  time  for 
starting  the  train.  The  porters  had  to  attend  to 
a  passenger  train  which  ought  to  have  left  at 
10.56,  but  in  point  of  fact  did  not  leave  until 
1 1 .3.  After  that  passenger  train  had  left,  porters 
came  and  attended  to  the  plaintiffs  goods,  which 
were  then  weighed  and  booked  and  taken  to  the 
platform  to  be  placed  in  the  train,  but  the  train, 
which  was  eight  minutes  late  in  starting,  went 
off  before  the  goods  could  be  placed  in  it.  The 
goods  were  then  forwarded  by  the  next  train  at 
1.25,  and  arrived  at  their  destination  in  the 
afternoon.  They  had  been  ordered  by  the 
plaintiff's  customers  for  use  on  that  day,  but  no 
notice  of  that  had  been  given  to  the  defendants : 
— Held,  that  the  railway  company  were  not  liable 


as  they  had,  under  the  circumstances,  afforded 
the  plaintiff  all  reasonable  facilities  for  the  for- 
warding of  the  goods.  Nicholls  v.  North-Eutm 
Railway,  59  L.  T.  137— D. 


Refusal  to  Receive— Movement  of  Animali  it  < 
Infected  District — Contagions  Diseases.]  — A 
regulation  made  under  an  Order  in  Council,  with 
regard  to  the  movement  of  "fat  animals  intended 
for  immediate  slaughter,"  in  force  in  the  comity 
of  G.,  required  that  a  declaration  under  the 
Contagious  Diseases  (Animals)  Act,  1878,  should 
be  delivered  to  the  inspector  of  the  local  authority 
of  the  county  of  G.  "  before  any  movement  into 
the  county  district,  or  removal  from  the  railway 
truck  in  the  county  district  takes  place."  .  .  . 
And  the  inspector  was  required  thereupon  to  . 
deliver  to  the  owner,  his  agent,  or  the  consignee, 
a  licence  specifying  the  conditions  upon  which 
such  animals  were  admitted  into  the  district 
In  an  action  against  a  railway  company  for 
damages  sustained  by  reason  of  their  refusal  to< 
receive  certain  fat  animals  at  C.,in  the  county  of 
M.,  a  district  free  from  disease,  for  conveyance 
to  B.,  in  the  county  of  G.,  because  no  declaration, 
or  licence  was  produced  at  C. : — Held,  that  "any 
movement  into  the  county  district "  included  thai 
commencement  of  a  railway  journey,  the  result 
of  which  would  be  to  bring  the  cattle  into  that 
district ;  and  that,  therefore,  the  railway  com*- 
pany  were  justified  in  their  refusal.     Willuimt. 
v.  Great  Western  Railway,  52  L.  T.  250 ;  49  J., 
P.  439— D. 

Contract — Obligation  to  provide  reasonably 
fit  Ship.]— The  plaintiff  shipped  certain  cat' 
on  board  the  defendant's  ship  for  carriage  fn 
London  to  New  York  under  a  bill  of  lading  whi 
provided  as  follows  : — "  These  animals  being 
sole  charge  of  shipper's  servants,  it  is  hereby  e>' 
pressly  agreed  that  the  shipowners,  or  their  agen  ' 
or  servants,  are,  as  respects  these  animals,  in 
way  responsible  either  for  their  escape  from  the 
steamer  or  for  accidents,  disease,  or  mortality, 
and  that  under  no  circumstances  shall  they  be 
held  liable  for  more  than  5/.  for  each  of  the 
animals."  The  ship  had  on  her  previous  voyage 
carried  cattle  Buffering  from  foot  and  mouth  di- 
sease. Some  of  the  cattle  shipped  under  the  bill 
of  lading  were  during  the  voyage  infected  with 
that  disease,  owing  to  the  negligence  of  the  de- 
fendants' servants  in  not  cleansing  and  disinfect- 
ing the  ship  before  receiving  the  plaintiff's  cattle 
on  board  and  signing  the  bill  of  lading,  and  the 
plaintiff  in  consequence  suffered  damage  amount- 
ing to  more  than  bl.  for  each  of  the  said  cattle : 
— Held,  that  the  provision  in  the  bill  of  lading 
limiting  liability  to  51.  for  each  of  the  cattle  did 
not  apply  to  damage  occasioned  by  the  defendants 
not  providing  a  ship  reasonably  fit  for  the  pur- 
poses of  the  carriage  of  the  cattle  which  they  had 
contracted  to  carry.  Tattersall  v.  Natumal 
Steamship  Company,  12  Q.  B.  D.  297  ;  53  L.  J., 
Q.  B.  332  ;  50  L  T.  299  ;  32  W.  R.  566  ;  5  Asp. 
M.  C.  206— D. 

To  oarry  by  special  Train  and  Boat— 

"Wind,  Weather,  and  Tide  permitting"  — 
Measure  of  Damages.] — Two  consignments  of 
fish  for  transport  by  special  train  and  tidal  boat 
from  London  via  Folkestone  to  Boulogne  were 
made  to  a  railway  company  who  advertised 
special  trains  and  boats  at  special  rates,  subject 
to  the  conditions  contained  in  their  tables.    One 


889 


CARRIERS— Goods  and  Animals. 


29Q 


of  these  conditions  was  that  the  company  would 
■ol  be  answerable  for  Ion  occasioned  by  the 
tniuor  boats  not  starting  or  arriving  at  the  time 
specified;  and  another  that  the  boats  started 
"wind,  weather,  and  tide  permitting."    In  each 
eve,  on  arrival  at  Folkestone,  it  was  fonnd  that 
it  w«  not  prudent  to  load  the  fish  on  the  tidal 
best  owing  to  the  state  of  the  weather,  and  the 
fan  had  to  be  sent  in  the  cargo  boat,  in  conse- 
quence of  which  the  Paris  train  at  Boulogne  was 
mimed  sod  the  fish  delayed  for  twenty-four 
sous,  and  deteriorated,    besides    losing    the 
■arket:— Held,  that  there  was  no  absolute 
guvsnty  that  the  fish  would  go  by  that  par- 
ticular train  and  boat,  but  that  it  was  for  the 
jbtj  to  say  whether  under  the  circumstances  the 
defendants  had  been  guilty  of  negligence,  or 
whether  they  bad  substantially  fulfilled  their 
contact     Held  also,  that  in  estimating  the 
damages,  the  loss  of  the  market  in  Paris  by  the 
Doa-trriTal  of  the  fish  at  Boulogne  in  time  to 
eaten  the  train  for  Paris  was  not  to  be  taken 
into  account.    Uaxoes  v.  South- Eat  tern  RaiU 
wt,  54  L,  J.,  Q.  B.  174  ;  62  L.  T.  514— D. 

—  "without  Risk  of  Craft*']— Where  a 
lighter  was  let  out  "without  risk  of  craft,"  and 
the  goods  on  board  were  damaged  by  sea-water  : 
—Held,  that  the  owner  of  the  lighter  was  not 
bable  for  the  loss.  Webster  v.  Bond,  1  C.  &  E. 
%-Mathew,  J. 

Dttj  af  Consignor— BMsaiiable  Precautions.] 
—Where  goods  are  transmitted  through  a  com- 
ma carrier,  it  is  incumbent  upon  the  consignor 
to  take  reasonable  precautions  to  insure  their 
ale  delivery  to  the  consignee  ;  and  whether  the 
precautions  taken  were  reasonable  or  not  de- 
pends npon  whether  they  were  such  as  to  have 
rendered  the  carrier  liable  to  the  consignee  in 
iwpect  of  the  goods  in  case  of  their  loss 
tonng  the  transit    Paintin  v.  Porrier,  49  J.  P. 

m-D. 

Owisr,  Agent  for  whom.]— Quaere,  whether 
the  rale  that  delivery  of  goods  fto  a  common 
*rrier  by  the  consignor  is  a  delivery  to  the  con- 
ague,  applies  to  the  delivery  of  goods  to  a 
aflway  company  abroad  for  conveyance  to  a 
wwignee  resident  in  England.    lb. 

Ufo  Botes— Hegligenee— Two  Notes— One 
taiifimaat  —  Estoppel.]  —  The  defendants, 
■JJJBgreceived  a  consignment  of  wheat,  sent  to 
the  consignees  an  advice  note,  which  described 
the  consignment  as  "  sacks  wheat,  four  trucks," 
*»  did  not  contain  any  details  as  to  weight, 
'tet  or  charges,  but  across  the  printed  form 
g»  written,  u  account  to  follow."  The  con- 
JJjJ**  gave  B.  a  delivery  order  in  respect  of 
tjni  wheat,  and  he  obtained  an  advance  from 
«e  plaintiffs  upon  it ;  the  plaintiffs  sent  this 
*®*trj  order  to  the  defendants,  and  they 
j£«pted  it.  On  the  following  day  the  defen- 
Juiti  tent  to  B.  another  advice  note  on  a  printed 
form  similar  to  the  one  already  sent,  but  across 
^iipoer  part  were  written  the  words,  "  charges 
^fr;M  the  invoice  number  was  different ;  the 
Jjjjgnment  was  described  as  161  sacks  of 
*w ;  the  weight,  the  rate,  and  the  amount  of 
**&*  were  filled  in.  B.  filled  up  the  de- 
b*»y  order  at  the  bottom  in  favour  of  the 
rwtms,  produced  it  to  them,  and  obtained  a 
"eoadadfance  from  them,  as  they  believed  it  to 


relate  to  a  second  parcel  of  wheat.  The  plain- 
tiffs delivered  this  order  to  the  defendants,  who 
accepted  it,  and  who  allowed  the  plaintiffs  on 
both  occasions  to  take  samples  of  the  wheat. 
There  was,  in  fact,  only  one  parcel  of  wheat,  and 
the  two  advice  notes  related  to  the  same  parcel. 
B.  went  into  liquidation,  and  the  plaintiffs, 
having  lost  the  amount  of  one  of  the  advances 
so  made  by  them,  sued  the  defendants  for  the 
amount : — Held,  that  the  plaintiffs  were  entitled 
to  recover  the  amount  claimed,  for  that  the 
defendants  had  so  dealt  with  the  wheat  and 
advice  notes  as  to  lead  the  plaintiffs  to  believe 
that  there  were  in  fact  two  consignments  of 
wheat,  and  that  they  were  in  consequence 
estopped  from  afterwards  alleging  that  there 
was  in  mot  but  one  consignment  of  wheat. 
Coventry  v.  Cheat  Eastern  Railway,  11  Q.  B.  D, 
776 ;  52  L.  J.,  Q.  B.  694  ;  49  L.  T.  641—0.  A. 

Action  for  Negligence— Cattle,  Injury  to— 
Onus  of  Proof.] — Eight  cows  having  been  safely 
loaded  in  a  truck  at  D.  for  conveyance  to  B.t 
on  the  arrival  of  the  train  at  B.  it  was  found 
that  of  these  one  had  a  leg  broken  and  that 
three  others  were  injured  about  the  hips  and 
rump.  The  owner  of  the  cows  having  brought 
an  action  for  negligence  against  the  railway 
company,  and  having  proved  the  injuries,  and 
given  his  opinion  that  they  were  caused  bv 
undue  shunting  and  jerking  of  the  train : — Held, 
that  the  onus  of  proof  being  on  the  plaintiff  and 
no  affirmative  evidence  having  been  given  by 
him  of  negligence  on  the  part  of  the  railway 
company,  the  defendants  were  entitled  to  judg- 
ment. Smith  v.  Midland  Railway,  57  L.  T. 
813  ;  52  J.  P.  262— D. 

Owner's  Bisk  Bate— Wilful  Misconduct 


— Misdelivery.] — Goods  consigned  by  the  plain- 
tiffs to  B.  &  Co.  were  carried  by  a  railway  com- 
pany at  the  owner's  risk  rate,  the  contract  con- 
taining the  condition  that  the  company  were  not 
to  be  liable  for  loss,  damage  or  delay,  except 
upon  proof  that  such  loss,  damage  or  delay  arose 
from  wilful  misconduct  on  the  part  of  the  com- 
pany's servants.  The  goods  were  misdelivered 
to  another  firm,  and  on  being  found  were  ten- 
dered to  the  consignees,  who  refused  to  accept 
them  : — Held,  that  in  the  absence  of  evidence 
on  the  part  of  the  plaintiffs  as  to  the  cause  of 
the  misdelivery,  such  misdelivery  did  not  amount 
to  wilful  misconduct  so  as  to  render  the  defen- 
dants liable.  Stevens  v.  Cheat  Western  Rail- 
way, 52  L.  T.  324  ;  49  J.  P.  310— D. 


Measure  of  Damages — Late  Delivery— Be- 


motenees.] — The  plaintiff  delivered  a  parcel  at 
the  receiving  office  of  the  defendant  company 
in  London  addressed  to  "  W.  H.  Moore  &  Co., 
Stand  23,  Show-ground,  Lichfield,  Staffordshire, 
van  train."  Nothing  was  said  by  the  person 
who  delivered  the  parcel  at  the  receiving-office 
as  to  the  purpose  for  which  it  was  being  sent  to 
Lichfield,  or  to  draw  attention  to  the  label : — 
Held,  that  the  label  was  sufficient  notice  to  the 
defendants  that  the  goods  were  being  sent  to  a 
show,  and  that  the  plaintiffs  were  entitled  to 
recover  damages  for  loss  of  profits  and  expenses 
incurred  by  the  goods  being  delayed  and  not 
delivered  at  Lichfield  in  time  for  the  show. 
Jameson  v.  Midland  Railway,  60  L.  T.  426— D. 
A  parcel  of  samples  was  delivered  to  the  de- 
fendants, a  railway  company,  to  be  forwarded 

L 


291 


CARRIEES — Remuneration  and  Lien. 


m 


to  the  plaintiffs.  87  the  negligence  of  the 
defendants,  who  had  notice  that  the  parcel  con- 
tained samples,  it  was  delayed  on  the  way  until 
the  season  at  which  the  samples  could  be  used 
for  procuring  orders  had  elapsed,  and  they  had 
in  consequence  become  valueless.  The  plaintiffs 
could  not  have  procured  similar  samples  in  the 
market.  In  an  action  for  the  non-delivery  in  a 
reasonable  time  : — Held,  that  the  plaintiffs  were 
entitled  to  recover  as  damages  the  value  to  them 
of  the  samples  at  the  time  when  they  should 
have  been  delivered.  Schulze  v.  Great  Eastern 
Railway,  19  Q.  B.  D.  30 ;  56  L.  J.,  Q.  B.  442 ; 
57  L.  T.  438  ;  35  W.  R.  683—0.  A.  And  see 
Hawes  v.  South-Eastern  Railway,  ante,  coL  289. 

Wrong  Delivery  by  Carrier— Damages.]— A 

statement  of  claim  alleged  that  the  defendants 
were  common  carriers  ;  that  C.  and  B.  were  in 
the  habit  of  sending  empty  casks  by  defendants' 
railway  to  plaintiff,  which  plaintiff  filled  with 
ketchup  and  returned ;  that  defendants,  by  their 
agents  and  servants,  knew  the  purpose  for  which 
the  casks  were  delivered  to  plaintiff  ;  that  de- 
fendants negligently  and  improperly  delivered 
to  plaintiff,  as  C.  and  B.'s  casks,  certain  other 
casks  not  belonging  to  G.  and  B.,  and  which  had 
contained  turpentine ;  that  plaintiff  not  know- 
ing, or  having  reasonable  means  of  knowing, 
that  the  empty  casks  delivered  were  not  G.  and 
B.'s,  filled  them  with  ketchup,  which  was  spoiled : 
— Held,  on  demurrer,  that  the  statement  of  claim 
showed  no  duty  on  the  part  of  the  defendants 
which  could  give  rise  to  a  cause  of  action,  and 
therefore  they  were  not  liable.  Cunnington  v. 
Great  Northern  Railway,  49  L.  T.  392  ;  48  J.  P. 
134— C.  A. 


IV.  REMUNERATION  AND  LIEN. 

Liability  of  Consignor  for  Freight— Delivery 
to  Consignee.] — The  defendants  hired  a  trolly, 
and  agreed  with  the  owner  to  pay  for  the  car- 
riage both  ways.  The  defendants  delivered  the 
trolly  to  the  plaintiffs,  to  be  returned  to  the 
owner,  under  a  consignment  note  which  stated 
that  the  defendants  requested  the  plaintiffs  to 
receive  and  forward  the  trolly  as  per  address 
and  particulars  on  the  note,  and  on  the  condi- 
tions stated  therein.  The  note  gave  the  name  of 
the  owner  as  consignee,  and  in  a  column  headed 
41  who  pays  carriage  "  was  inserted  "  consignee." 
The  plaintiffs  delivered  the  goods  to  the  con- 
signee, who  declined  to  pay  the  freight  on  the 
ground  that  the  defendants  had  agreed  to  pay  it. 
In  an  action  to  recover  the  freight  from  the  de- 
fendants : — Held,  that  under  the  circumstances 
the  defendants  could  not  be  treated  merely  as 
agents  of  the  consignee  to  make  the  contract  for 
the  carriage  of  the  trolly,  but  were  themselves 
contracting  parties,  and  liable  to  pay  the  freight. 
Great  Western  Railway  v.  Bagge,  15  Q.  B.  D. 
625  ;  54  L.  J.,  Q.  B.  599  ;  53  L.  T.  225  ;  34  W.  R. 
46— D. 


Agreement  to  Reduce  Unequal  Rates— "Lower 

Bates."] — A  railway  company  agreed  with  A. 
&  B.,  coal-owners,  that  they  would  carry  their 
coal,  subject  to  clause  11»  at  certain  charges 
given  in  the  schedule;  and  they  also  agreed 
(clause  9)  that  in  the  event  of  their  charging 
any  other  trader  for  the  same  description  of 
traffic  lower  rates   than   those   stipulated   to 


any  station,  then  in  that  event  A.  k  B.  were 
to  have  a  corresponding  reduction  in  the  rates 
payable  by  them  to  such  station.  Clause  11 
was  to  the  effect  that  notwithstanding  the 
rates  or  charges  before  specified,  they  were 
entitled  to  charge  A.  &  B.  rates  or  charges  similar 
to  those  charged  and  paid  by  the  Eglinton  Coal 
Company  ;  and  in  the  event  of  any  consideration 
being  given  to  the  Eglinton  Company  fbrraising 
them,  a  similar  consideration  shall  be  given  to 

A.  &  B.  The  railway  company  charged  D- 
another  coal-owner,  not  a  party  to  the  agreement, 
a  lower  rate  per  ton,  taking  into  account  the 
greater  distance  the  coal  was  carried.  The  agree- 
ment with  the  Eglinton  Company  was  not  in 
evidence.    It  was  alleged  the  rate  charged  A  & 

B.  was  not  higher  than  that  charged  to  the 
Eglinton  Company : — Held,  that  there  was 
nothing  in  clause  11  to  supersede  the  effect  of 
clause  9,  and  that  upon  the  true  construction  of 
the  latter  clause,  A.  &  B.  were  entitled  to  a  cor- 
responding reduction  with  D.,  and  repayment  of 
over-charges ;  "  lower  rates  "  meaning  propor- 
tionately lower  rates  per  ton  per  mile,  and  not  a 
less  sum  per  ton  irrespective  of  the  distance 
carried.  Glasgow  and  South  Western  Railway 
v.  MacHnnon,  11  App.  Cas.  386 — H.  L.  (Sc). 

Action  for  Charges — Defence  of  Vnream- 
ableness — Counter-claim.  ] — It  is  no  defence  toan 
action  by  a  railway  company  to  recover  charges 
for  the  carriage  of  goods  that  the  charges  sued 
for  are  unreasonable,  so  as  to  give  an  undue 
preference  to  other  persons,  or  to  subject  the 
defendant  to  undue  prejudice  or  disadvantage, 
within  the  meaning  of  s.  2  of  the  Railway  and 
Canal  Traffic  Act,  1854,  nor  can  the  defendant 
in  such  an  action  set  off,  or  recover  by  counter* 
claim,  over-payments  in  respect  of  previous 
charges  which  were  unreasonable  within  that 
section.  Lancashire  and  Yorkshire  RaUvt^f 
v.  Greenwood,  21  Q.  B.  D.  215  ;  58  L.  J.,  Q.  8. 
16  ;  69  L.  T.  930— Cave,  J. 

Terminal  Charges — Services  incidental  to 
Business  of  a  Carrier.] — By  the  London, 
Brighton,  and  South  Coast  Railway  Act,  1863 
(26  &  27  Vict.  c.  218),  s.  51,  "  The  maximum 
rates  of  charges  to  be  made  by  the  company  for 
the  conveyance  of  animals  and  goods,  including 
the  tolls  for  the  use  of  their  railways  and  wag- 
gons or  trucks,  and  for  locomotive  power,  and 
every  other  expense  incidental  to  such  convey- 
ance (except  a  reasonable  sum  for  loading,  cover- 
ing, and  unloading  the  goods  at  any  terminal 
station)  of  such  goods,  and  for  delivery  and  col- 
lection, and  any  other  services  incidental  to  the 
duty  or  business  of  a  carrier,  where  such  services, 
or  any  of  them,  are  or  is  performed  by  the  com- 
pany,  shall  not  exceed  "  certain  sums  prescribed : 
— Held,  that  station  accommodation,  the  use  of 
sidings,  weighing,  checking,  clerkage,  watching, 
and  labelling,  provided  and  performed  by  the 
company  in  respect  of  goods  traffic  carried  by 
them  as  carriers,  may  be,  and  prima  facie  are, 
"  services  incidental  to  the  duty  or  business  of  a 
carrier  "  within  s.  51 ;  whether  they  are  so  in 
any  particular  case  is  a  question  of  fact,  for  the 
Railway  Commissioners  to  decide,  and,  if  found 
by  them  to  be  so,  such  services  may  be  the  sub- 
ject of  a  separate  reasonable  charge  in  addition 
to  the  rates  prescribed.  Ball  v.  Lonie^ 
Brighton,   and     South     Coast    Railway,    15 


498 


CARRIERS— Carriers  Act 


294 


Q.  B.  D.  505 ;  53  L.  T.   345 ;  5  Nev.  &  Mac 
28-D. 


Iktt— Bight  of  Hallway  to  Detain  for  non- 
ptynsnt] — A  railway  company  claimed  under 
tkt  Bail  ways  Clauses  Consolidation  Act,  1845 
(8*9  Vict.  c.  20),  s.  97,  to  detain  waggons 
belonging  to  the    respondents    for  tolls    due 
from  the   B.    Company  for    the   carriage   of 
goods  in  the  waggons  : — Held,  that  the  claim 
could  not  be  sustained  under  the  earlier  or  the 
later  part  of  s.  97  :  not  under  the  later,  because 
the  waggons  did  not  belong  to  the  persons  from 
whom  the  tolls  were  due ;  not  under  the  earlier, 
because  that  part  of  the  section  does  not  entitle 
a  railway  company  to  detain  waggons  for  tolls 
doe  only  in  respect  of  the  goods  carried  in  such 
waggons.    Manchester,  Sheffield,  and  Lincoln- 
shire Railway  v.  North  Central  Wagon  Com- 
/My,  13  App.  Cas.  554 ;  58  L.  J.,  Ch.  219 ;  59  L.  T. 
730;  37  W.  R.  305— H.  L.  (E.) 

—  Agreement  for  General  Lien— Winding- 
ip  ef  Company.] — In  1876  an  agreement  was 
enteral  into  between  the  L.  Coal  Company  and 
the  G.  W.  Railway  Company,  by  which  the 
charges  for  coals  consigned  by  the  coal  company 
were  carried  to  a  "ledger  account,"  one  con- 
dition of  which  was,  that  the  goods  and  waggons 
belonging  to  or  sent  by  the  person  having  a 
ledger  account  should  be  subject  to  a  general 
hen  in  favour  of  the  railway  company  for  all 
moneys  due  to  them,  &c.,  from  the  person  on  any 
aeoonnt,  such   lien  to  take  effect  immediately 
after  the  failure  of  payment  on  demand  of 
any  Bums  appearing  to  be  due  on  the  ledger 
account ;  "in  case  of  bankruptcy,  insolvency, or 
stoppage  of  payment,  such  lien  to  take  effect 
immediately  for  any  sum  appearing  due  in  the 
books  of  the  company,"  with  a  right  to  sell  such 
goods  and  waggons,  and  out  of  the  proceeds  to 
retain  the  sums  due.    The  coal  company  became 
insolvent,  and  on  the   16th  December,  1885,  a 
petition  was  presented  for  winding-up ;  on  the 
30th  January,   1886,  a   provisional   liquidator 
▼as  appointed,  and  in  February,  1886,  an  order 
to  wind  up   was   made.     When  the  petition 
was  presented  the  coal  company  was  indebted  to 
the  railway  company  in  respect  of  charges  for 
freight.    Of  the  fifteen  waggons  in  use  by  the 
coal  company,  and  employed   in  carrying  coal 
over  the  railway  company's  line,  nine  had  been 
waved  by  the  railway  company  prior  to  presen- 
tation of  the  winding-up  petition,  and  had  been 
detained  by  them  ever  since  ;  four  in  the  posses- 
tkm  of  the  railway  company  when  the  petition 
*m  presented  had  travelled  up  and  down  the 
Use  since,  but  returned  into  the  possession  of 
the  railway  company  before  the  date  of  the 
winding-op  order ;   two  did  not  come  into  the 
pnswiiion  of  the  railway  company  until  between 
the  presentation  of  the  petition  and  the  winding- 
■P  order.    The  liquidator  claimed  delivery  up  by 
the  railway  company  of  the  fifteen   waggons 
v&cfa  the  company  claimed  to  retain  in  satis- 
faction of  the  general  lien  under  the  agree- 
ment:—Held,  that  the  lien  given  to  the  railway 
company  by  the  agreement,  which  was  made  for 
Jeoidmary  purposes  of  the  coal  company's 
taraeas.  was  good  and  valid,  and  took  effect 
■pon  the  insolvency  of  that  company,  and  had  not 
wen  displaced  by  anything  that  had  taken  place 
ffl  the  winding-up  proceedings.    Llangennech 
Oml  Qmpany,  In  re,  56  L.  T.  475  -Chitty,  J. 


V.  CARRIERS  ACT. 


Receiving  Offioe — Loss  of  Goods —Felonious 
Act  of  Servant.] — A  parcel  of  silk  was  delivered 
at  the  receiving  office  for  transmission  to  a  station 
on  the  defendants'  railway.  No  declaration  of 
value  was  made  at  the  time  of  delivery.  The 
place  where  the  goods  were  delivered  was  stated 
in  the  published  time-tables  of  the  defendants  to 
be  a  receiving  office  for  parcels  and  goods  in- 
tended for  carriage  by  the  defendants.  The  goods 
were  collected  in  due  course  by  the  defendants, 
and  taken  to  one  of  their  stations  ;  while  there, 
they  were  obtained  by  a  person  in  the  employ  of 
the  proprietor  of  the  receiving-office,  by  means 
of  a  forged  order,  and  were  stolen  : — Held,  that 
the  defendants  were  not  protected  by  the  pro- 
visions of  the  Camera  Act  (11  Geo.  4  &  1  Wm.  4, 
c.  68),  as  the  loss  had  arisen  from  the  felonious 
act  of  a  person  who  was  a  servant  of  the  defen- 
dants within  the  meaning  of  s.  8  of  that  Act. 
Stephens  v.  London  and  South  Western  Railway, 
18  Q.  B.  D.  121 ;  56  L.  J.,  Q.  B.  171 ;  56  L.  T. 
226  ;  35  W.  R.  161 ;  51  J.  P.  324— C.  A, 


VI.     RAILWAY  AND  CANAL  TRAFFIC 

ACT,  1854. 

1.  Just  and  Reasonable  Conditions. 

Passenger's  Luggage  —  Speoial  Contraot — 
Conditions  of  non-liability.]  —The  plaintiff  was 
a  season  ticket  holder  on  the  defendants'  line 
from  B.  to  K.  under  a  special  contract,  by  which 
he  undertook  to  abide  by  all  the  rules,  regula- 
tions, and  bye-laws  of  the  defendants.  One  of 
such  regulations  was  that  the  defendants  would 
not  be  responsible  for  any  passenger's  luggage 
unless  fully  and  properly  addressed  with  the 
name  and  destination  of  the  owner.  The  plaintiff 
having  with  him  a  bag  which  was  not  so  ad- 
dressed saw  it  labelled  for  E.  by  one  of  the 
defendants'  servants  ;  be  left  the  train  at  C,  an 
intermediate  station,  and  proceeded  to  E.  by  a 
subsequent  train  ;  on  his  arrival  at  E.  his  bag 
was  missing.  There  was  no  evidence  that  the 
bag  ever  reached  E. : — Held,  that  the  regula- 
tion of  the  defendants  was  not  a  just  and  reason- 
able condition  within  s.  7  of  the  Railway  and 
Canal  Traffic  Act,  1854  (17  &  18  Vict.  c.  31),  and 
could  not  be  enforced  against  the  plaintiff. 
Cutler  v.  North  London  Railway,  19  Q.  B.  D. 
64  ;  56  L.  J.,  Q.  B.  648  ;  56  L.  T.  639  ;  35  W.  R. 
575  ;  51  J.  P.  774.— D. 

Quaere,  whether  the  liability  of  the  defendants 
in  respect  of  the  portion  of  the  journey  from  C. 
to  E.  was  that  of  common  carriers  or  merely  of 
gratuitous  bailees.    lb. 


Alternative  Rates — Limitation  as  to  Value.] 
Cattle  were  carried  by  a  railway  company  under 
a  special  contract  signed  by  the  consignor  which 
stated  that  the  company  had  two  rates  for  the 
conveyance  of  cattle :  one  the  ordinary  rate 
when  they  took  the  ordinary  liability  of  the 
carrier ;  the  other  a  reduced  rate ;  that  these 
cattle  were  to  be  carried  at  the  reduced  rate,  the 
company  to  be  relieved  from  all  liability  in  case 
of  damage  or  delay  except  upon  proof  that  such 
loss,  detention  or  injury  arose  from  wilful  mis- 
conduct on  the  part  of  the  company's  servants. 
A  notice  was  posted  up  in  the  company's  office 
which  stated  that  the  company  haa  two  rates, 

L  2 


295 


CARRIERS — Just  and  Reasonable  Conditions. 


296 


namely  the  owner's  risk  rate  on  the  terms  above 
given,  and  the  company's  risk  rate,  which  was 
ten  per  cent,  above  the  owner's  risk  rate,  at 
which  the  company  undertook  the  ordinary  risk 
of  carriers  in  respect  of  rail  transit,  limited  for 
neat  cattle  to  15/.,  for  pigs  and  sheep  to  21.,  but 
did  "  not  admit  liability  for  any  animals  dying 
of  disease  or  arriving  at  destination  in  such  con- 
dition as  to  be  able  to  walk  from  the  truck." 
The  consignor  had  never  seen  any  rate  but  the 
owner's  risk  rate.  After  two  trials  cattle  had 
ceased  to  go  at  the  higher  rate.  The  higher 
rate  was  less  than  the  maximum  allowed  by  the 
company's  acta  No  list  of  rates  was  exhibited. 
The  cattle  having  been  injured  through  the 
negligence  (but  not  the  wilful  misconduct)  of  the 
company's  servants  : — Held,  that  the  notice  of 
the  higher  rate  was  not  invalidated  by  the  limi- 
tation as  to  value,  nor  by  the  fact  that  it  did  not 
mention  the  terms  upon  which  cattle  could  be 
carried  without  limitation  of  value  as  provided 
by  the  Railway  and  Canal  Traffic  Act,  1854, 
s.  7  ;  that  the  clause  as  to  not  admitting  liability 
meant  only  that  the  liability  must  be  established 
by  proof ;  that  so  construed  the  condition  was 
just  and  reasonable  within  s.  7  ;  that  the  con- 
signor might  have  known  and  must  be  taken  to 
have  known  the  terms  of  the  higher  rate,  and 
had  the  offer  of  a  just  and  reasonable  alternative ; 
and  that  the  company  were  therefore  protected 
by  the  special  contract.  Great  Western  Railway 
v.  McCarthy,  12  App.  Cas.  218  ;  56  L.  J.,  P.  C. 
33  ;  56  L  T.  582  ;  85  W.  R.  429  ;  61  J.  P.  532— 
H.  L.  (Ir.). 

Condition  excluding  all  liability.]— A  fish 
merchant  delivered  fish  to  a  railway  company  to 
carry  upon  a  signed  contract  relieving  the  com- 

Eany  as  to  all  fish  delivered  by  him  "from  all 
ability  for  loss  or  damage  by  delay  in  transit, 
or  from  whatever  other  cause  arising,"  in  con- 
sideration of  the  rates  being  one-fith  lower  than 
where  no  such  undertaking  was  granted ;  the 
contract  to  endure  for  five  years.  The  servants 
of  the  company  accepted  the  fish,  although  from 
pressure  of  business  they  could  not  carry  it  in 
time  for  the  intended  market,  and  the  fish  lost 
the  market : — Held,  that  upon  the  facts  the 
merchant  had  a  bona  fide  option  to  send  fish  at 
a  reasonable  rate  with  liability  on  the  company 
as  common  carriers,  or  at  the  lower  rate  upon 
the  terms  of  the  contract ;  that  the  contract  was 
in  point  of  fact  just  and  reasonable  within  the 
Railway  and  Canal  Traffic  Act,  1854  (17  &  18 
Vict.  c.  31).  s.  7,  and  covered  the  delay  ;  and 
that  the  company  were  not  liable  for  the  loss. 
Manchester,  Sheffield,  and  Lincolnshire  Railway 
v.  Brown,  8  App.  Cas.  703 ;  63  L.  J.,  Q.  B.  124  ; 
50  L.  T.  281 ;  32  W.  R.  207  ;  48  J.  P.  388— H. 
L.  (B.). 

Wilful  Misconduct  of  Servants.] — An 


action  was  brought  against  a  railway  company 
for  injury  to  the  plaintiff's  cattle,  on  the  way 
from  Dublin  to  Market  Harboro,  via  Liverpool, 
caused  by  the  wilful  misconduct  and  default  of 
the  defendants'  servants  on  the  voyage  between 
Dublin  and  Liverpool.  The  defendants  pleaded 
that  the  plaintiff  having  been  informed  tnat  the 
defendants  carried  cattle  at  alternative  rates, 
selected  the  reduced  rate,  and  signed  a  special 
contract  for  the  carriage  of  the  cattle,  upon 
which  the  defendants  relied  as  exempting  them 
from  liability.    One  of  the  conditions  of  the 


contract  was  as  follows :  "  that  the  company  in 
consideration  of  the  reduced  rate  of  freight 
charged,  will  not  be  accountable  for  any  loss 
caused  by  delay  or  injury  to  live  stock  taking 
place  before  or  at  shipment,  on  the  journey,  or 
at  or  after  landing ;  nor  for  any  loss  or  injury 
to  live  stock,  whether  arising  from  or  consequent 
upon  the  dangers  or  accidents  of  the  seas,  riven, 
harbours  or  navigation,  or  from  the  act  of  God, 
the  Queen's  enemies,  &c.  .  .  .  improper,  care- 
less or  unskilful  navigation,  or  from  accidents 
connected  with  machinery  or  boilers,  or  from 
any  fault,  negligence,  or  mistake  of  the  master, 
officers,  seamen  or  crew  of  the  vessels."  The 
plaintiff  replied  that  the  injuries  complained  of 
were  caused  by  the  wilful  misconduct  of  the 
seamen,  or  crew,  or  employes  of  the  steam- 
vessels,  in  wilfully  mutilating,  disfiguring,  and 
wounding  the  cattle.  On  demurrer  to  the  reply : 
—Held,  1st,  that  the  contract  did  not  in  its 
terms  exempt  the  defendants  from  liability  for 
acts  of  wilful  misconduct  on  the  part  of  the 
seamen  and  crew ;  2ndly,  that  a  contract  ex- 
empting them  from  liability  for  such  acts  would 
be  unreasonable.  Ronan  v.  Midland  Railwy, 
14  L.  R.,  Ir.  167— C.  P.  D. 

Carriage  of  Dogs— limit  of  Value.]— A  con- 
dition, contained  in  a  ticket  signed  by  a  person 
delivering  a  dog  for  carriage  to  a  railway  com- 
pany, stated  that  "the  company  are  not  and 
will  not  be  common  carriers  of  dogs,  nor  will 
they  receive  dogs  for  conveyance  except  on  the 
terms  that  they  shall  not  be  responsible  for  any 
amount  of  damages  for  the  loss  thereof,  or  for 
injury  thereto  beyond  the  sum  of  21.  unless  a 
higher  value  be  declared  at  the  time  of  deli?ery 
to  the  company  and  a  percentage  of  5  per  cent 

Said  upon  the  excess  of  value  beyond  the  21.  so 
eclared "  :— Held,  that,  although  the  railway 
company  were  not  bound  to  be  common  carriers 
of  dogs,  yet,  being  bound  by  the  Railway  and 
Canal  Traffic  Act,  1854,  to  afford  reasonable 
facilities  for  the  carriage  of  dogs,  they  eoald 
only  limit  their  liability  in  respect  thereof  by 
reasonable  conditions:  and  that  the  afore- 
mentioned condition  was  not  just  and  reasonable 
within  the  meaning  of  the  7th  section  of  the  Act, 
and  therefore  did  not  protect  the  railway  com- 
pany from  liability  to  an  amount  exceeding  ft 
in  respect  of  damage  done  to  the  dog  through 
the  negligence  of  their  servants.  Dickson  v. 
Great  Northern  Railway,  18  Q.  8.  D.  176;  66 
L.  J.,  Q.  B.  Ill ;  55  L.  T.  868 ;  85  W.  R.  202; 
51  J.  P.  888— C.  A. 

Terminal  Charges— Demurrage.] — A  charge 
by  a  railway  company  for  demurrage  for  goods 
delivered,  but  not  removed  by  the  consignee 
after  notice  of  arrival  and  of  the  conditions  as  to 
such  charge,  is  not  affected  by  any  decision  of 
the  Railway  Commissioners  as  to  the  reasonable- 
ness of  such  charges.  North  Eastern  Railway 
v.  Cairns,  32  W.  R.  829— D. 


2.  Undue  Preference. 

"  Passing  only  over  the  same  portion  of  the 
Line" — "Under  the  same  oircumstanoef"— 
Whether  action  maintainable.] — The  provision 
in  s.  90  of  the  Railways  Clauses  Consolidation 
Act,  1845  (8  &  9  Vict.  c.  20),  requiring  equality 
of  rates  for  carriage  of  goods  "  passing  only  over 


807 


CARRIERS—  Undue  Preference. 


298 


the  same  portion  of  the  line  of  railway  under 
the  ame  circumstances  "  applies  only  to  goods 
passing  between  the  same  points  of  departure 
and  arrival,  and  passing  over  no  other  part  of 
the  line.    And  mere  inequality  in  the  rate  of 
charge  when  unequal  distances  are  traversed 
does  not  constitute  a  preference  inconsistent 
with  the  concluding  words  of    that  section. 
Therefore,  where   a  railway  company  carried 
coals  from  a  group  of  collieries  situate  at  diffe- 
rent points  along  their  line,  and  charged  all  the 
collieries  with  one  uniform  set  of  rates  in  respect 
of  soch  carriage,  and  the  owners  of  the  colliery 
lying  nearest  to  the  point  of  arrival  brought  an 
action  for  overcharges : — Held,  that  the  railway 
company  had  not  infringed  the  provisions  of 
l  90  of  the  Railways  Clauses  Consolidation  Act, 
Iftto.    Held,  also,  that  in  this  case  an  action  did 
not  lie  for  breach  of  s.  2  of  the  Railway  and 
Canal  Traffic  Act,  1854  (17  &  18  Vict.  c.  31), 
endue  or  unreasonable  preference  or  prejudice 
Dot  having  been  made  out.    Quaere,  whether 
under  any  circumstances  an  action  lies  for  breach 
of  that  section.    Denaby  Main  Colliery  Company 
?.  Manchester,  Sheffield,  and  Lincolnshire  Mail- 
«•»,  11  App.  Cas.  97;  55  L.  J.,  Q.  B.  181  ;  64 
L  T.  1 ;  50  J.  P.  340  ;  6  Nev.  &  Mac.  138— H.  L. 

A  trader  complained  that  a  railway  company 
bad  for  many  years  charged  higher  rates  for  the 
carriage  of  his  goods  than  for  that  of  a  neigh- 
bour's, the  distance  being  eight  miles  in  tbe 
Conner  case,  and  in  the  latter,  twelve,  starting 
from  the  same  point : — Held,  that  no  action 
*wdd  lie  to  recover  overcharges.  Murray  v. 
GUqow  and  South-  Western  Railway,  4  Nev. 
*  Mac  456— Ct  of  Session. 

The  83rd  section  of  tbe  Railway  Clauses  Con- 
tolidatiun  (Scotland)  Act,  1845,  provided  for  the 
attention  or  variation  of  such  tolls  as  a  railway 
company  might  by  special  act  be  entitled  to 
charge,  M  provided  that  all  such  tolls  be  at  all 
unes  charged  equally  to  all  persons,  and  after 
the  tame  rate  ....  in  respect  of  all  goods  and 
carnages  of  the  same  description  and  conveyed 
....  over  the  same  portion  of  the  same  line  of 
nflwsy,  under  the  same  circumstances" : — Held, 
that  to  justify  proceedings  under  that  section  by 
a  person  complaining  of  an  undue  preference  to 
Mother  trader,  the  goods  of  the  two  traders  must 
be  carried  on  precisely  the  same  journey.    lb. 

Where  goods  are  carried  for  different  cus- 
tomers4* over  tbe  same  portion  of  the  line  of 
railway  "  the  fact  that  the  goods  carried  for  one 
catfomer  are  to  be  shipped  to  certain  ports  in 
cider  to  develop  a  new  trade,  or  open  up  new 
■arkets,  and  so  to  increase  the  tonnage  carried, 
does  not  constitute  a  difference  in  the  "  circum- 
^ftttces"  so  as  to  justify  inequality  of  rates. 
Therefore,  where  a  railway  company  carried 
coals  over  the  same  portion  only  of  the  line  to 
G~  both  for  the  appellants  and  also  for  B.,  and 
•flowed  B.  Sd.  per  ton  in  respect  of  all  coal  car- 
ried to  G.,  and  there  shipped  for  the  West  Indian 
■■riet;  and  also  allowed  B.  6d.  per  ton  in 
B^pect  of  all  coal  carried  to  G.,  and  there 
«&pped  by  him  to  certain  ports,  in  considera- 
tion of  a  bona  fide  undertaking  by  B.  to  develop 
the  trade  to  those  ports,  to  provide  the  vessels, 
sad  to  run  the  risks  incidental  to  the  working 
<*  wch  a  traffic  : — Held,  that  the  coals  were  car- 
lied  "under  the  same  circumstances,"  and  that 
tte  allowances  were  breaches  of  s.  90  of  the 
Arivays  Clauses  Consolidation  Act,  1845.  Held, 


also,  that  the  appellants  were  entitled  to  recover 
the  overcharges  by  action  against  the  company, 
the  amount  to  be  ascertained  by  finding  what 
quantity  of  coal  carried  under  the  same  circum- 
stances, and  over  the  same  portion  only  of  the 
line  was  charged  at  the  higher  rate  to  the  appel- 
lants at  the  time  the  lower  rate  was  charged  to 
B.    lb. 

A  railway  company  which  carried  coals  for 
the  appellants  and  also  for  B.  and  J.  "  over  the 
same  portion  of  their  line  of  railway,"  and  made 
allowances  and  a  rebate  to  B.  and  J.,  proved 
that  they  carried  for  B.  and  J.  at  a  less  cost  to 
the  company,  but  did  not  show  that  the  allow- 
ances and  rebate  were  adequately  represented 
by  the  saving  to  the  company  : — Held,  that  the 
difference  in  cost  constituted  a  real  difference  in 
the  "  circumstances  "  ;  that  there  being  nothing 
to  show  any  want  of  good  faith  the  company 
were  not  bound  to  prove  that  the  allowances  and 
rebate  were  adequately  represented  by  the 
saving ;  that  there  was  no  breach  of  s.  90  of  the 
Railways  Clauses  Consolidation  Act,  1845  ;  and 
that  the  appellants  could  not  maintain  an  action 
for  overcharges  under  that  section.    lb. 

Equal  Mileage  Bate — Higher  Charge  for 
Shorter  Distance — Action  for  Overcharges.] — 
The  plaintiff  was  one  of  the  registered  officers  of 
a  company  who  were  the  proprietors  of  iron  and 
tinplate  works,  situate  near  the  defendants'  rail- 
way, and  12  miles  distant  from  the  seaport  of 
Swansea  on  the  defendants' railway  to  Liverpool. 
The  defendants  charged  the  said  company  12*.  Qd. 
per  ton  for  the  carriage  of  iron  and  tin  plates 
over  their  line  from  the  company's  works  to 
Liverpool,  while  other  manufacturers  of  iron  and 
tin  plates,  whose  works  were  situate  within  a 
radius  of  6  miles  of  the  seaport  of  Swansea,  and 
further,  therefore,  from  Liverpool  than  the  plain- 
tiff's works,  were  charged  by  the  defendants  for 
the  carriage  of  their  plates  from  Swansea  to 
Liverpool  11*.  id.  per  ton  only.  There  is  com- 
munication by  sea  between  Swansea  and  Liver- 
pool, and  the  rate  of  11*.  id.  was  fixed  by  the 
defendants  as  the  charge  for  the  carriage  of  the 
goods  of  these  manufacturers  within  the  6  miles 
radius  in  order  to  enable  the  defendants  to  com- 
pete with  the  sea  carriage  ;  and  by  reason  of  the 
lesser  charge  those  manufacturers  who  were  thus 
favoured  were  enabled  to  sell  their  plates  at  a 
lower  price  per  ton  proportionate  to  the  dif- 
ference in  the  tonnage  delivered  at  Liverpool 
than  the  plaintiff's  company : — Held,  that  the 
charging  of  a  lower  rate  to  the  manufacturers 
within  the  6  miles  radius  for  the  carriage  of 
their  goods  a  longer  distance  than  the  plaintiff's 
company  was  an  undue  and  unreasonable  pre- 
ference and  advantage  granted  to  them  by  the 
defendants,  and  was  in  contravention  of  s.  2  of 
the  Railway  and  Canal  Traffic  Act,  1854,  and 
that  the  plaintiff  was  entitled  to  maintain  an 
action  to  recover  the  amount  paid  by  his  com- 
pany to  the  defendants  in  excess  of  the  11*.  id. 
rate.  Evershed  v.  London  and  North-  Western 
Raihjyay  (2  Q.  B.  D.  254)  followed.  Budd  v. 
London  and  North-  Western  Railway,  36  L.  T. 
802  ;  26  W.  R.  752  ;  4  Nev.  &  Mac.  393— Ex.  D. 

Traffic  Arrangements — Agreement  for  through 
Bates  between  two  Railway  Companies.]— Sect, 

90  of  the  Railways  Clauses  Consolidation  Act, 
1845, — which  provides  that  all  tolls  charged  by 
a  railway  company  shall  be  at  all  times  charged 


} 


299       CERTIORARI— CHAMPERTY  AND  MAINTENANCE.      800 


equally  to  all  persons,  and  after  the  same  rate, 
in  respect  of  all  goods  of  the  same  description, 
passing  only  over  the  same  portion  of  the  line  of 
railway  under  the  same  circumstances,  and  that 
no  reduction  or  advance  in  any  such  tolls  shall 
be  made  directly  or  indirectly  in  favour  of  or 
against  any  particular  company  or  person 
travelling  upon  or  using  the  railway,— does  not 
prevent  the  company  from  making  a  special 
charge  for  goods  carried  over  their  railway,  in 
pursuance  of  a  traffic  agreement  with  another 
company  under  s.  87  of  the  act.  Hull,  Barnsleu, 
and  West  Riding  Junction  Railway  v.  York- 
shire and  Derbyshire  Coal  Company,  18  Q.  B. 
D.  761  ;  56  L.  J.,  Q.  B.  261  ;  35  W.  R.  385— C.  A. 


CATTLE. 

I.  When  in  Order  and  Disposition  of 
Bankrupt.— See  Bankruptcy,  VIIL, 
1,  b. 

II.  Diseased  or  Contagious.— See  Animals. 

III.  Injuries  to,  by  Boos.— See  Animals. 

IV.  Carriage  of— See  Carrier. 


CERTIFICATE. 

Of  Architect.]— See  Building  Contracts. 
Of  Chief  Clerk.  ]—See  Practice. 


CERTIORARI. 

Who  may  apply.] — Semble,  a  rival  publican 
has  no  locus  standi  to  apply  for  a  certiorari  to 
quash  a  publican's  licence  granted  to  another 
person.    Reg.  v.  Surrey  JJ.,  52  J.  P.  423 — D. 

Action  "  fit  to  be  tried  "  in  Superior  Court.]— 
A  party  to  an  action  in  the  Mayor's  Court  is  not 
entitled  as  of  right  to  remove  the  action  by  writ 
of  certiorari  into  the  High  Court,  but  can  only 
do  so  by  leave  of  a  judge  of  the  High  Court  in  a 
case  where  it  shall  appear  to  him  that  the  action 
is  one  which  is  fit  to  be  tried  there.  Symonds  v. 
Dimsdale  (2  Ex.  533)  explained.  Cherry  v. 
Endean,  55  L.  J.,  Q.  B.  292 ;  54  L.  T.  763  ;  34 
W.  R.  458— D. 

Rule  12  of  the  Borough  and  Local  Courts  of 
Record  Act,  1872,  which  is  applicable  to  the 
Mayor's  Court,  provides  that  "  no  action  entered 
in  the  court  shall,  before  judgment,  be  removed 
or  removable  from  the  court  into  any  superior 
court  by  any  writ  or  process,  except  by  leave  of 
a  judge  of  one  of  the  superior  courts  in  cases 
which  shall  appear  to  such  judge  fit  to  be  tried 
in  one  of  the  superior  courts,'1  &c.  The  plaintiff 
brought  an  action  in  the  Mayor's  Court  against 
the  defendant,  a  stockbroker,  for  alleged  miscon- 
duct in  connexion  with  the  purchase  of  certain 
shares,  and  claimed  110/.  as  damages : — Held, 
that  the  action  was  one  which  was  "  fit  to  be 


tried  "  in  the  superior  courts,  and  that  the 
defendant  was  accordingly  entitled  to  a  writ  of 
certiorari.  Simpson  v.  Shaw,  56  L.  J.,  Q.  B.  92 ; 
56  L.  T.  24— D. 


Transfer  from  County  Court— Employer** 


Liability.]— See  County  Coubt. 

Does  not  lie  after  Conviction  and  Judgment] 

— An  application  for  a  certiorari  to  the  Queen's 
Bench  Division  does  not  lie  after  conviction  and 
judgment.  Poole's  Case  (14  L.  R.  1,  14)  ex- 
plained.  Nally  v.  Reg.,  16  L.  R.,  Ir.  1 ;  15  Cox, 
C.  C.  638— Q.  B.  D. 

Rule  nisi— Hotioe  to  Justices,  a  Condition  pre- 
cedent.]— The  six  days'  notice  to  the  justices  re- 
quired by  rule  33  of  the  Crown  Office  Rules,  1886, 
as  a  preliminary  to  the  grant  of  a  writ  of  certio- 
rari must  precede  the  motion  for  a  rule  nisi,  and 
not  merely  the  motion  for  the  rule  absolute. 
Roberts,  Ex  parte,  50  J.  P.  667— D. 

In  action  against  Friendly  Society.]— See 
Friendly  Society. 

Time  for— Action  in  Mayor's  Court.]— See 
Mayor's  Court. 


CEYLON. 

See  COLONY. 


CHAMPERTY  AND    MAIN* 

TENANCE. 

Grounds  of  Defence — Charity.] — An  action 
will  lie  to  recover  damages  caused  to  the  plain- 
tiff by  the  defendant's  "  maintenance  "  of  a  third 
person  in  legal  proceedings  between  him  and  the 
plaintiff.  To  such  an  action  it  is  a  good  defence 
that  the  defendant  assisted  the  third  person  from 
charitable  motives,  believing  that  he  was  a  poor 
man  oppressed  by  a  rich  man.  It  is  not  neces- 
sary that  the  defendant  should  have  acted  after 
full  inquiry  into  the  circumstances,  bat  the 
defence  will  be  equally  available  even  if  the 
defendant,  had  he  made  full  inquiry,  would  hare 
ascertained  that  there  was  no  reasonable  or  pro* 
bable  ground  for  the  proceedings  which  he 
assisted.  Harris  v.  Briscoe,  17  Q.  B.  D.  504 ; 
55  L.  J.,  Q.  B.  423  ;  56  L.  T.  14  ;  34  W.  R.  729- 
C.  A. 

Action  by  Bankrupt  against  Company.]— A 
bankrupt  cannot  recover  in  an  action  for  main- 
tenance committed  in  relation  to  the  proceed- 
ings for  procuring  his  adjudication,  since  the 
cause  of  action  must  have  arisen,  if  at  all,  before 
the  bankruptcy,  and  the  right  to  sue  must  there- 
fore have  passed  to  the  trustee.  Metropolitan 
Bank  v.  Pooley,  10  App.  Cas.  210 ;  54  L.  J., 
Q.  B.  449  ;  53  L.  T.  163  ;  33  W.  R.  709 ;  49  J.  P. 
756— H.  L.  (E.) 

Per  Earl  of  Selborne,  L.C. — A  corporation  in 
liquidation,  as  distinct  from  the  liquidator 
thereof,  is  incapable  of  maintenance.    Io. 


301 


CHARITY — Bequests  and  Devises. 


302 


CHAPEL. 

See  ECCLESIASTICAL  LAW. 


CHARGING  ORDER. 

A  uui  of  Execution.] — See  Execution. 

On  Property  recovered  or  preserved.]— See 
Solicitor. 


CHARITY. 

1.  Bequests  and  Devises. 

1.  Interests  in  Land — Mortmain. 

2.  Validity  of. 

3.  Payment  of 

4.  Application  of  Funds  Qy  pris. 

II.  Uses  and  Trusts. 

ID.  Property. 

IT.  Endowed  Schools. 

V.  Actions  bt  and  against  Charitable 
Bodies. 


I.    BEQUESTS  AND  DEVISES. 
1.  Interests  in  Land— Mortmain. 

Mortgage.] — A  testator  gave  the  residue  of 
nch  part  of  his  personal  estate  as  could  by  law 
be  bequeathed  for  charitable  purposes  on  trust 
for  charities.  At  the  time  of  his  death  his 
personal  estate  comprised  a  sum  of  1001.  due 
to  him  on  the  security  of  a  mortgage  of  the  life 
interest  of  a  lady  under  the  will  of  her  father  in 
the  sum  of  3,0001.  The  3,0002.  was  invested  in 
the  names  of  the  trustees  of  the  father's  will  on 
a  mortgage  of  real  estate : — Held,  that,  under 
the  mortgage  to  secure  the  1002.  the  testator 
took  no  interest  in  land,  and  that  the  100/. 
could  be  legally  bequeathed  by  him  to  charit- 
able purposes.  Watts,  In  re,  Cornford  v. 
EUwttiW  Ch.  D.  318  ;  51  L.  T.  85 ;  32  W.  B. 
MO— Pearson,  J. 

A  testator  was  entitled  to  8002.,  secured  by 
mortgage  of  the  life  interest  of  a  widow  lady  in 
the  funds  held  on  the  trusts  of  her  marriage 
■ettlement,  and  the  reversionary  interest  of  one 
of  her  children  in  the  same  funds.  At  the  date 
of  the  mortgage  and  of  the  testators  death,  part 
of  these  funds  were  pure  personalty,  and  the  rest 
vis  invested  under  a  power  in  the  settlement 
on  mortgage  of  real  estate.  The  testator  be- 
queathed to  charities  such  part  of  his  residuary 
ertate  as  could  by  law  be  so  bequeathed : — Held, 
that  the  8002.  was  an  interest  in  land  within  the 
neaning  of  9  Geo.  2,  c.  36,  s.  3,  and  could  not 
be  given  by  will  to  a  charity,  and  that  there 
could  not  be  any  apportionment  so  as  to  make  a 
part  of  the  sum  available  for  charity.  Brook  v. 
todley,  (3  L.  R.,  Ch.  672)  approved  and  fol- 


lowed. Observations  of  Jessel,  M.B.,  in  Harris, 
In  re,  (15  Ch.  D.  561)  explained  Watts,  In  re, 
Cornford  v.  Elliott,  29  Ch.  D.  947  ;  55  L.  JM  Ch. 
332  ;  53  L.  T.  426  ;  33  W.  R.  885— C.  A. 

Assignment  of  Harbour  Duties.] — A  bond 
by  harbour  commissioners  in  the  form  prescribed 
by  their  act  assigning  the  duties  which  they  were 
empowered  to  levy  on  ships  entering  and  leaving 
the  haven,  or  loading  and  unloading  in  the  roads, 
and  which  were  to  be  applied :  1,  in  payment  of 
the  expenses  of  obtaining  the  act ;  2,  in  pay- 
ment of  the  interest  of  moneys  advanced  for 
defraying  such  expenses ;  3,  in  payment  of  the 
interest  of  moneys  borrowed  under  the  act ;  4, 
in  defraying  working  expenses  ;  and,  5,  in  pay- 
ment of  principal  moneys  borrowed  under  the 
act,  is  not  an  interest  in  or  affecting  land  within 
the  Mortmain  Act  (9  Geo.  2,  c.  36),  and  may  be 
given  by  will  for  charitable  purposes.  Knapp  v. 
Williams  (4  Yes.  430,  n.)  questioned,  ion  v. 
Ashton  (28  Beav.  379)  not  followed.  Attorney- 
General  v.  Jones  (1  Mac.  &  G.  574)  distin- 
guished.    Christmas,  In  re,  Martin  v.  Laoon, 

33  Ch.  D.  332 ;  55  L.  J.,  Ch.  878 ;  55  L.  T.  197  ; 

34  W.  B.  779  ;  50  J.  P.  759— C.  A. 

To  Build  Churoh— For  Benefit  of  Choir  Fund.] 

— See  two  next  cases. 


2.  Validity  op. 

Secrot  Trust  of  Land  to  Build  Churoh.]— A 
testator  by  his  will  executed  three  months 
before  his  death,  devised  all  his  real  estate, 
which  included  a  piece  of  land  of  about  one 
acre,  with  an  unconsecrated  building  thereon 
licensed  by  the  bishop  for  public  worship,  to 
his  wife  absolutely.  The  devise  was  in  pursu- 
ance of  a  secret  agreement  between  the  testator 
and  bis  wife,  whereby  the  latter  undertook  to 
hold  the  land  and  building  upon  trust,  after  her 
husband's  death,  to  convey  the  same  as  and  for 
a  parish  or  district  church  in  perpetuity : — 
Held,  that  the  devise  was  legal  under  the 
statute  43  Geo.  2,  c.  108,  and  was  not  rendered 
illegal  by  any  provisions  of  the  Mortmain  Act, 
9  Geo.  2,  c.  86.  O'Brien  v.  Tyssen,  28  Ch.  D. 
372  ;  54  L.  J.,  Ch.  284  ;  51  L.  T.  814  ;  33  W.  R. 
428— V.-C.  B. 

Gift  for  Church  Clock.] — A  testator  devised 
and  bequeathed  his  real  and  personal  estate  to  a 
trustee  upon  trusts  for  conversion,  and  to  pay 
the  residue  of  such  moneys  to  the  vicar  and 
churchwardens  of  two  churches,  to  be  applied 
by  them  towards  the  choir  fund  or  a  new  clock 
for  the  tower,  according  to  the  discretion  of  the 
trustees.  It  appeared  that  the  clock  of  one  of 
the  churches  mentioned  was  in  good  repair,  but 
that  of  the  other  was  an  old  and  very  inferior 
one,  and  that  a  sum  of  2002.  would  be  necessary 
for  supplying  a  new  clock  in  its  place  : — Held, 
that  the  gift  for  a  new  clock  came  within  43 
Geo.  3,  c.  108,  and  that  the  sum  of  2002.  might 
be  lawfully  applied  for  that  purpose  out  of  the 
impure  personal  estate,  but  that  the  gift  for  the 
choir  fund  was  void  under  the  Mortmain  Acts  as 
to  so  much  of  the  residue  of  the  testator's  estate 
as  consisted  of  impure  personalty  and  the  pro- 
ceeds of  sale  of  realty.  Hendry,  In  re,  Watson 
v.  Blakeney,  56  L.  T.  908  ;  35  W.  R.  780  — 
North,  J. 


803 


CHARITY — Bequests  and  Devises. 


304 


Gift  by  Married  Woman  toward!  erection  of 
Ghuxeh.]— Under  the  statute  43  Geo.  3,  c.  108, 
which  contained  a  power  to  all  persons  having 
an  interest  in  any  land  or  in  any  goods  or 
chattels,  to  give  by  deed  enrolled,  or  will 
executed,  three  months  before  death,  lands 
not  exceeding  five  acres,  or  goods  and  chattels 
not  exceeding  in  value  600/.,  for  or  towards  the 
erecting  of  any  church,  with  a  proviso  that  the 
act  should  not  extend  to  any  persons  being 
within  age,  nor  women  covert  without  their 
husbands  to  make  any  such  gift: — Held,  that 
the  proviso  was  not  affected  by  the  Married 
Women's  Property  Act,  1882,  which  by  sect.  1, 
sub-sect.  1,  gave  power  to  married  women  to 
dispose  by  will  of  any  real  or  personal  property 
as  her  separate  property  in  the  same  manner  as 
if  she  were  a  feme  sole.  Consequently  a  gift 
by  a  married  woman,  by  will  executed  three 
months  before  death,  to  the  vicar  and  church- 
wardens of  a  church  of  a  sum  of  300Z.  to  be 
applied  by  them  in  the  erection  of  a  new 
cnurch,  and  to  be  paid  out  of  personal  estate 
which  was  legally  applicable  for  the  purpose, 
was  held  to  be  invalid.  Smith's  Estate,  In  re, 
Clements  v.  Ward,  35  Ch.  D.  589  ;  56  L.  J.,  Ch. 
726  ;  56  L.  T.  850  ;  35  W.  R.  514  ;  51  J.  P.  692 
-*- Stirling,  J. 

Bepair  of  Tomb  and  Churchyard — Apportion- 
ment.]— A  bequest  of  money,  not  exceeding 
500/.,  on  trust  to  apply  the  income  in  repairing 
a  churchyard,  is  good  under  the  act  43  Geo.  3, 
c.  108,  a  1,  and  is  a  charitable  legacy.  Vemghan, 
In  re,  Vaughan  v.  Thomas,  33  Ch.  D.  187 ;  55 
L.  T.  647  ;  35  W.  R.  104  ;  51  J.  P.  70— North,  J. 

A  testator  bequeathed  500/.  on  trust  to  invest, 
and  to  apply  such  part  of  the  income  as  might 
be  necessary  in  keeping  a  family  vault  in  repair, 
and  to  apply  the  residue  of  the  income  in  keep- 
ing in  repair  a  tomb  and  the  churchyard  in 
which  the  vault  and  tomb  were  situated  : — 
Held,  that  the  trust  to  keep  in  repair  the  vault 
was  void,  and  that  the  portion  ox  the  fund  de- 
voted to  that  purpose  fell  into  the  gift  of  the 
residue  ;  that  the  residuary  trust  was  void  so  far 
as  it  related  to  keeping  in  repair  the  tomb,  and 
valid  so  far  as  it  related  to  keeping  in  repair  the 
churchyard ;  and  that  the  void  portion  of  the 
bequest  was  so  much  of  the  500/.,  the  amount 
to  be  ascertained  by  affidavit,  as  when  invested 
in  Consols  would  produce  sufficient  income  to 
keep  in  repair  the  tomb.    lb. 

Gifts  to  "  charitable  and  deserving  Objects."] 
— Gift,  by  will,  of  money  to  "  charitable  and  de- 
serving objects  "  : — Held,  a  good  charitable  be- 
quest. Sutton,  In  re,  Stone  v.  Attorney-  General, 
28  Ch.  D.  464  ;  64  L.  J.,  Ch.  613  ;  33  W.  R.  519 
— Pearson,  J. 

Gift  for  Endowment  of  Museum.] — A  testatrix 
by  her  will  bequeathed  a  collection  of  pictures, 
plate,  china,  and  books  to  trustees  to  form  an 
art  museum  at  Bath,  and  bequeathed  to  the 
trustees  a  sum  of  money  to  be  held  for  the  per- 
petual protection,  maintenance,  and  endowment 
of  the  collection.  It  appeared  that  the  testatrix 
intended  the  museum  to  be  kept  in  Bath  as  a 
public  institution  for  the  benefit  of  the  in- 
habitants of  the  city  and  the  public  generally  : 
— Held,  that  the  gift  was  a  valid  gift  for 
charitable  purposes.  Holburne,  In  re,  Coates  v. 
Mackillop,  63  L.  T.  212— Chitty,  J. 


Bequest  of  Fund  for  Hospitality  or  Charity- 
Uncertainty.] — A  testator  bequeathed  a  sum  of 
money  to  the  treasurer  of  the  corporation  of  G., 
the  interest  to  be  paid  annually  to  the  mayor 
"  to  be  expended  by  him  in  acts  of  hospitality  or 
charity  at  such  times  and  in  such  manner  as  he 
might  think  best :  "—Held,  that  the  gift  was  not 
confined  to  charitable  purposes  only  and  was 
therefore  void  for  uncertainty.  Jar  man's  Estate, 
In  re,  Leavers  v.  Clayton  (8  Ch.  684)  followed. 
Hewitt's  Estate,  In  re,  Gateshead  (Mayor)  i. 
Hudspeth,  53  L.  J.,  Ch.  132 ;  49  L.  T.  587- 
Kay,  J. 

Trust  for  Charitable  Institution  purely  Volun- 
tary.]—Bequest  of  1,000/.  to  R.  W.  B.  in  trust  to 
invest  it,  and  apply  the  interest,  in  the  first  place, 
in  keeping  up  a  family  vault,  and  the  balance  to 
any  charitable  or  religious  purpose  he  may  please, 
whether  public  or  private,  permanent  or  tempo- 
rary subscription,  provided,  however,  the  same 
be  not  connected  directly  or  indirectly  with  the 
poor  law  commissioners  acting  under  the  1  &  2 
Vict.  c.  56,  or  any  other  act  then  or  thereafter 
to  be  passed,  for  the  compulsory  support  of  the 
poor  in  Ireland  ;  it  being  the  wish  and  intention 
of  the  testatrix  that  the  same  should  from  tune 
to  time  be  applied  by  R.  W.  B.  in  charitable  in- 
stitutions, or  charitable  or  religious  subscriptions 
purely  voluntary  and  spontaneous  ;  the  sum  of 
ol.  per  annum,  at  least,  to  be  given  thereout  to 
the  B.  Lying-in  Hospital,  so  long  as  the  same 
should  remain  supported  and  managed  as  at 
present,  or  under  the  control,  guidance  and 
management  of  a  self -elected  body  or  committee 
unconnected  with  and  deriving  no  assistance 
from  the  said  poor  law  commissioners,  and  not 
longer  or  otherwise : — Held,  a  valid  charitable 
bequest.  Sinclair's  Trust,  In  re,  13  L.  R.,  lr. 
150— M.  R. 

Power  of  Trustees  to  select  Charities  Chan- 
ties  empowered  by  Law  to  hold  Land.]  —A 
testator,  after  making  various  pecuniary  be- 
quests, some  of  which  were  to  charities,  ga?e  all 
his  personal  estate  and  effects  of  which  he 
should  die  possessed,  and  which  should  not  con- 
sist of  money  or  securities  for  money,  to  B. 
absolutely.  And  he  gave  and  devised  all  the 
residue  of  his  estates,  both  real  and  personal,  to 
his  trustees,  upon  trust  thereout  in  the  first 
place  to  pay  two  specified  sums  of  500/.  and 
100/.,  and  as  to  the  residue  thereof,  or  such  part 
or  parts  thereof,  as  might  be  lawfully  appro- 
priated to  the  purpose,  for  such  one  or  more  or 
any  hospital  of  a  charitable  nature,  and  in  such 
proportions  as  they  in  their  uncontrolled  dis- 
cretion should  think  fit.  The  personal  estate 
proving  insufficient  for  the  payment  of  the 
legacies,  it  became  necessary  to  resort  to  the 
real  estate,  which  was  sold  for  the  purpose. 
There  remained  a  surplus  of  the  proceeds  of  sale 
after  paying  the  legacies  in  full.  The  trustees, 
under  the  power  in  the  will  bad  appropriated 
this  fund  among  certain  hospitals  entitled  by 
law  to  hold  real  estate  :— Held,  that  as  between 
these  hospitals  and  the  heir-at-law,  the  former 
were  entitled  to  the  fund.  (hey,  1%  «» 
Broadbent  v.  Barrow,  31  Ch.  D.  113 ;  55  L.  J. 
Ch.  103;  53  L.  T.  723;  34  W.  R.  100- 
Pearson,  J. 

Gift  to  the  Poor  as  Trustees  shall  think  fit] 
— The  testatrix  gave  the  residue  of  her  property, 


805 


CHARITY — Bequests  and  Devises. 


806 


which  consisted  of  both  pare  and  impure  per- 
wnahj,  to  her  executors  and  trustees,  "to  give 
it  to  the  poor  as  they  may  think  fit "  : — Held, 
that  the  gift  could  not  be  upheld  as  to  the  im- 
pure personalty,  on  the  ground  that  the  trustees 
night  in  their  discretion  give  it  to  charitable  in- 
stitutions by  statute  exempted  from  the  opera- 
tion of  the  Mortmain  Act,  inasmuch  as  the 
testatrix  had  not  indicated  charitable  institu- 
tions is  being  amongst  the  objects  which  she 
wished  to  benefit,     dark,  In  re,  Husband  v. 
Martin,  54  L.  J.,  Ch.  1080 ;  52  L.  T.  406  ;  S3 
W.  B.  516— Kay,  J. 

Ptwer  of  Selection— Indefinite  Gilt— Inclu- 
sion of  Objects  not  charitable — Society  for  the 
Issjfjltef  Animals.] — A  testatrix  gave  legacies 
to  several  charities  and  societies,  among  others 
to  the  Society  for  the  Protection  of  Animals 
liable  to  Vivisection  and  the  Home  for  Lost 
Dogs,  And  6he  directed  the  trustees  to  pay  and 
<nstribute  the  residue  of  that  portion  of  her 
personal  estate  which  might  by  law  be  appro- 
priated by  will  for  such  purpose  among  such 
charities,  societies,  and  institutions  (including 
or  excluding  those  thereinbefore  mentioned  as 
might  be  preferred),  and  in  such  shares  and  pro- 
portions as  Lord  S.  should  by  writing  nominate. 
Lord  S.  survived  the  testatrix  and  divided  the 
pore  residuary  personal  estate  among  a  number 
of  charities,  not  including  the  two  above-men- 
tioned societies  for  the  benefit  of  animals.  The 
next  of  kin  claimed  the  fund  on  the  ground  that 
the  gift  was  void  for  uncertainty  and  for  includ- 
ing objects  which  were  not  charitable  : — Held, 
first,  that  the  scope  of  the  will  showed  that  the 
testatrix  referred  only  to  charitable  societies  and 
institutions.  Secondly,  assuming  that  the  two 
societies  for  the  benefit  of  animals  were  not 
charities,  the  fact  that  Lord  8.  had  power  to  in- 
clude them  in  the  distribution  of  the  fund  did 
not  make  the  bequest  void.  But,  semble,  the 
Society  for  the  Protection  of  Animals  liable  to 
Vivisection  and  the  Home  for  Lost  Dogs,  were 
charities  within  the  statute  of  40  Eliz.  c.  4. 
Qwre,  whether  the  Society  for  the  Total  Sup- 
pression of  Vivisection  is  a  charity  within  the 
suae  statute.  Douglas,  In  re,  Obert  v.  Barrow, 
*5  Ch.  D.  472  ;  56  L.  J.,  Ch.  913  ;  56  L.  T.  786  ; 
35  W.  a  740 -C.  A. 

tale  against  Perpetuities.]  —  See  Randcll, 
Is  re,  Ratdell  v.  Dixon,  post,  col.  308. 

Gift  to  Endow  Private  Chapel  —  General 
CearitaUe  Intention.] — A  settlor,  by  an  inden- 
ture dated  in  1867,  granted  to  trustees  a  tithe 
rent-charge  of  360/.  a-year  issuing  out  of  certain 
tads  in  the  parish  of  D.  for  the  following  trust, 
ntmely,  as  to  80/.  upon  trust  for  the  payment  of 
the  salary  of  the  priest  in  the  private  chapel 
hoflt  by  the  settlor  adjoining  his  mansion  and 
dwdting-house,  provided  that  such  priest  should 
lot  have  any  other  ecclesiastical  or  pastoral  duty 
except  such  as  might  appertain  to  the  visitation 
cf  the  tenants  and  labourers  of  the  owners  of  the 
L  estates ;  and  as  to  the  sum  of  10/.  upon  trust 
to  apply  the  same  for  the  purpose  of  lighting  and 
cleaning  the  said  chapel ;  and  as  to  100/.  upon 
trost  for  the  teaching  and  maintenance  of  ten 
twTi  as  choristers  in  the  said  chapel ;  and  as  to 
WT  for  the  payment  of  the  schoolmaster  teaching 
sad  educating  the  poor  boys  at  the  school-house 
building  and  intended  to  be  built  on  the 


L.  estate  ;  and  as  to  302.  for  the  payment  of  the 
schoolmistress  teaching  certain  poor  girls  at  the 
8choolhouse  on  the  L.  estate  ;  and  as  to  10/.  for 
the  costs,  charges,  and  expenses  of  keeping  in 
order  the  said  schools  and  four  almshouses  for 
the  poor  labourers  on  the  L.  estate ;  and  as  to 
80/.  for  the  support  and  maintenance  of  such  poor 
labourers  as  should  be  dwelling  in  certain  four 
almshouses  on  the  L.  estate.  The  trusts  of  this 
deed  were  not  acted  on  during  the  lifetime  of  the 
settlor,  except  to  a  limited  extent.  The  chapel 
on  the  L.  estate  was  a  private  chapel,  and  had 
never  been  consecrated  or  dedicated  to  charity, 
and  no  strangers  were  allowed  into  it,  except  by 
special  permission  : — Held,  that  the  court  could 
not  impute  to  the  settlor  any  intention  of  charity 
independently  of  the  L.  estate,  and  that  no 
charitable  scheme  could  be  sanctioned  by  the 
court,  and  that  the  trusts  declared  by  the  deed 
were  void,  and  the  property  passed  under  the 
settlor's  will.  Hoare  v.  Hoare,  56  L.  T.  147 — 
Chitty,  J. 

3.  Payment  of. 

Bequest  of  Capital  Sum — Condition  in  Nature 
of  a  Trust.] — A  bequest  of  a  capital  sum  was 
made  to  the  Royal  National  Lifeboat  Institution 
on  condition  of  its  constructing  and  keeping  up 
two  lifeboats,  and  coupled  with  a  gift  over  in  the 
event  of  non-compliance  with  the  condition : — 
Held,  that  the  bequest  was  in  the  nature  of  a 
trust,  and  that  the  Lifeboat  Institution  having 
accepted  the  trust  was  entitled  to  an  absolute 
transfer  of  the  fund.  Richardson,  In  re, 
Shuldham  v.  Royal  National  Lifeboat  Institu- 
tion, 56  L.  J.,  Ch.  784 ;  57  L.  T.  17  ;  35  W.  R. 
710— Chitty,  J. 

Charitable    Bequest  —  Scheme.]  —  The 


property  of  a  religious  unincorporated  society 
was  under  the  absolute  control  of  the  general 
superintendent.  A  testator  bequeathed  legacies 
to  "General  W.  B."  (who  was  the  general 
superintendent)  "  for  the  spread  of  the  gospel "  : 
— Held,  that  the  legacies  should  be  paid  to  W.  B. 
without  a  scheme.    Lea,  In  re,  Lea  v.   Cooke, 

34  Ch.  D.  528  ;  56  L.  J.,  Ch.  671  ;  56  L.  T.  482  ; 

35  W.  R.  572— North,  J. 

Marshalling— Direction  in  Will.]— A  testator, 
after  certain  pecuniary  bequests,  gave  the  resi- 
due of  his  property  to  trustees  upon  trust  for 
sale,  and  out  of  the  proceeds  of  the  sale  and 
the  money  of  which  he  should  be  possessed  at 
the  time  of  his  death  to  pay  his  funeral  expenses, 
debts,  and  testamentary  expenses,  and  upon 
trust  to  pay  and  divide  the  net  residue  unto  and 
equally  between  the  treasurers  of  four  charities, 
A.,  B.,  C,  and  D.  The  testator  declared  that  his 
pure  personal  estate  should,  in  the  first  place,  be 
applied  in  payment  of  the  shares  of  the  charities 
C.  and  D.  Charities  A.  and  B.  were  empowered 
to  take  land  or  impure  personalty ;  C.  and  D. 
were  not.  The  testator,  at  the  time  of  his  death, 
was  entitled  to  pure  and  impure  personalty  : — 
Held,  that  there  was  in  the  will  a  sufficient 
direction  to  marshal  the  estates  so  that  the 
pure  personalty  was  first  to  be  applied  in  pay- 
ment of  the  shares  of  the  charities  C.  and  D. 
Pitt's  Estate,  In  re,  Lacy  v.  Stone,  53  L.  T. 
113  ;  33  W.  R.  653— Chitty,  J. 

A  testatrix  gave  all  her  real  and  personal 
estate  to  trustees  upon  trust  to  convert,  and 


307 


CHARITY — Bequests  and  Devises. 


308 


out  of  the  proceeds  pay  her  debts,  funeral  and 
testamentary  expenses,  and  certain  legacies 
bequeathed  to  private  individuals,  and  directed 
that  all  such  legacies  should  in  the  first  instance 
be  payable  out  of  the  proceeds  of  sale  of  her 
"  real  and  leasehold  estate,  if  any."  She  directed 
her  trustees  to  divide  the  residue  of  her  estate 
into  three  parts  and  pay  the  same  to  certain 
charities.  She  then  directed  that  "  the  foregoing 
charitable  legacies  "  should  be  paid  "  exclusively  " 
out  of  such  part  of  her  pure  personal  estate  as 
was  legally  applicable  for  that  purpose.  The 
testatrix  had  no  real  or  leasehold  estates  in  this 
country,  but  was  possessed  of  land  in  the  colony 
of  the  Cape  of  Good  Hope  (the  value  of  which 
was  less  than  the  amount  of  the  general  legacies) 
and  of  pure  and  impure  personalty  : — Held,  that 
the  direction  as  to  payment  of  the  charitable 
legacies  was  in  effect  equivalent  to  a  direction 
that  the  residue  should  consist  exclusively  of 
pure  personalty,  and  therefore  operated  as  a 
direction  to  marshall  for  the  benefit  of  the 
charities ;  that  the  general  legacies  were  pri- 
marily payable  out  of  the  proceeds  of  sale  of  the 
land  in  the  colony ;  and  that  the  debts  and 
funeral  and  testamentary  expenses  and  costs  of 
action  and  the  unpaid  portion  of  the  general 
legacies  must  be  paid  in  the  first  instance  out  of 
the  impure  personalty,  so  as  to  leave  the  pure 
personalty,  so  far  as  possible,  to  constitute  the 
ultimate  residue.  Arnold,  In  re,  Ravenscroft  v. 
Workman,  37  Ch.  D.  637;  57  L.  J..  Ch.  682; 
58  L.  T.  469  ;  36  W.  R.  424— Kay,  J. 


4.  Application  of  Funds  Cy-pb*s. 

Scheme  of  Settlement— Friendly  Society.]— 
In  1862,  on  the  occasion  of  an  accident  at  the 
Hartley  Colliery,  in  Northumberland,  a  fund 
was  raised  by  voluntary  subscriptions  and  vested 
in  trustees  for  the  relief  of  the  sufferers  and 
their  families.  There  being  an  ultimate  surplus, 
the  managers  of  the  fund  proposed  to  apportion 
it  among  several  mining  districts,  including 
South  Durham,  for  the  relief  of  suffering  occa- 
sioned by  colliery  accidents  in  those  districts, 
and  in  aid  of  relief  funds  already  in  operation 
there.  By  the  rules  of  a  Miners'  Relief  Fund 
Friendly  Society  established  in  1862  for  certain 
counties,  including  the  county  of  Durham,  pro- 
vision was  made  for  raising  funds  by  voluntary 
subscriptions  among  the  members  (required  to 
be  persons  employed  in  coal  or  other  mines),  and 
by  donations,  for  defraying  the  funeral  expenses 
of  members,  supporting  their  families,  assisting 
members  disabled  by  accident,  old  age,  or 
infirmity,  and  for  payment  of  a  sum  at  the  death 
of  a  member : — Held,  in  an  action  by  the  sur- 
viving trustee  of  the  Hartley  Colliery  Fund,  that 
the  friendly  society  was  a  "  charity,"  and  that 
that  portion  of  the  fund  intended  for  the  South 
Durham  district  might  be  applied  cy-pres  by 
payment  to  four  of  the  trustees  of  the  friendly 
society,  to  be  applied  by  them,  according  to  the 
rules  of  the  society,  for  the  relief  of  suffering 
occasioned  by  colliery  accidents  in  the  South 
Durham  district,  and  for  no  other  purpose  : — 
Held,  also,  that  the  Hartley  Colliery  Fund,  being 
a  fund  arising  wholly  from  "  voluntary  contribu- 
tions," was  exempted  by  s.  62  of  the  Charitable 
Trusts  Act,  1853,  from  the  operation  of  the  act, 
and  that,  therefore,  the  consent  of  the  Charity 
Commissioners  to  the  action,  under  s.  17,  was 


unnecessary.  Clark's  Trust,  In  re  (1  Cb.  D. 
497),  considered.  Pease  v.  Pattinson,  32  Ch.  D. 
154  ;  55  L.  J.,  Ch.  617  ;  54  L.  T.  209  ;  34  W.  R. 
361—  V.-C.  B. 

Legacy  to  Incumbent  of  Church  on  Condition!.] 
—A  testatrix  bequeathed  14,0001.  on  trust  to  pay 
the  income  to  the  incumbent  of  the  church  at 
H.  for  the  time  being  so  long  as  he  permitted  the 
sittings  to  be  occupied  free :  in  case  payment 
for  sittings  was  ever  demanded,  she  directed  the 
14.000/.  to  fall  into  her  residue :— Held,  fast, 
that  the  testatrix  had  not  expressed  a  general 
intention  to  devote  the  14,0CKM.  to  charitable 
purposes,  bo  that  in  case  of  failure  of  the  trust 
for  the  benefit  of  the  incumbent  the  fund  would 
be  applied  cy-pres  ;  secondly,  that  the  direction 
that  the  fund  should  fall  into  the  residue,  being 
a  direction  that  the  fund  should  go  as  the  law 
would  otherwise  carry  it,  did  not  offend  the  role 
against  perpetuities.  Randell,  In  re,  Banddl 
v.  Dixon,  38  Ch.  D.  213  ;  57  L.  J.,  Ch.  899 ;  58 
L.  T.  626  ;  86  W.  R.  543— North,  J. 

Lifeboat — Place.] — A  capital  sum  was  be- 

2ueathed  to  the  trustees  of  the  Royal  National 
lifeboat  Institution  on  condition  that  the  insti- 
tution should  construct  and  keep  up  two  tabular 
lifeboats  according  to  a  pattern  named,  to  be 
stationed  at  Deal  and  Pwllheli  respectively. 
There  was  a  gift  over  in  case  the  institution 
should  decline  to  construct  the  lifeboats.  The 
lifeboat  institution,  having  accepted  the  trust, 
were  held  to  be  entitled  to  an  absolute  transfer 
of  the  fund.  It  appeared,  however,  that  at  Deal 
the  coast  was  sufficiently  furnished  with  life- 
boats, and  moreover,  that  a  "  self-righting  "  and 
not  a  tubular  boat  was  required  for  that  par- 
ticular station.  It  was,  therefore,  proposed  by 
the  lifeboat  institution  to  place  a  tubular  lifeboat 
at  New  Brighton  instead  of  at  Deal ;  and  they  j 
applied  to  the  court  for  permission  so  to  do :—  j 
Held,  that  the  cy-pres  doctrine  was  applicable, 
and  that  the  application  ought  to  be  acceded  to. 
Richardson's  Will,  In  re,  58  L.  T.  45- 
Chitty,  J. 

Soup    Kitchen   and  Cottage  Hospital.  ]  —  A 

testator  directed  his  trustees  to  set  apart  a  sum 
of  money  out  of  such  part  of  his  personal  estate 
as  might  by  law  be  applied  for  charitable  pur- 
poses, and  to  apply  it  in  the  establishment  of  a 
soup  kitchen  and  cottage  hospital  for  the  parish 
of  8.  in  such  manner  as  not  to  violate  the  Mort- 
main Acts.  A  suit  having  been  instituted  to 
administer  the  trusts  of  the  will,  the  Chief  Clerk 
reported  that  it  was  impossible  to  apply  the  fund 
in  accordance  with  the  directions  in  the  will  :— 
Held,  that  the  will  showed  a  general  charitable 
intention  to  benefit  the  poor  of  the  parish  of  S., 
and  that  although  the  particular  purpose  of  the 
bequest  had  failed,  the  court  would  execute  the 
trust  cy-pres ;  and  a  scheme  was  directed  accord- 
ingly. Biscoe  v.  Jackson,  35  Ch.  D.  460;  So* 
L.  J.,  Ch.  540  ;  56  L.  T.  753  ;  35  W.  R.  554— 
C.  A.    Afl&rming  51  J.  P.  391— Kay,  J. 

Bequest  to  build  Hospital— Gift  of  Land  Void.] 
— A  testator  by  deed  poll  duly  enrolled  in 
Chancery,  conveyed  to  trustees  a  piece  of  land 
and  cottages  for  the  purpose  of  an  hospital  for 
ten  aged  poor  persons,  preference  being  given  to 

E articular  parishes.    By  his  will  made  in  1882, 
e  charged  his  copyhold  and  freehold  estates 


809 


CHARITY—  Uses  and  Trusts. 


310 


with  his  debts,  funeral  expenses,  and  legacies, 
sod  gave  the  residue  of  his  personal  property  to 
the  trustees  of  the  deed  poll  upon  trust  to  build 
an  hospital  on  the  site  or  the  premises  conveyed 
bj  the  deed  poll,  and  to  employ  the  income  of 
the  remainder  in  insurance  and  repairs,  and 
paying  18/.  or  more  to  each  of  the  ten  poor  in- 
mates, The  testator  died  within  twelve  months 
from  the  execution  of  the  deed  poll,  which 
therefore  became  void  under  the  Statute  of 
Mortmain : — Held,  that  the  paramount  intention 
of  the  testator  was  to  found  an  hospital  and 
benefit  ten  aged  poor  people,  and  that  the  bequest 
was  one  that  could  not  be  carried  out  independ- 
ently of  the  hospital ;  the  gift  of  the  hospital 
wholly  failed  and  could  not  be  carried  ont  cy- 
ris.  Taylor,  In  re,  Martin  v.  Freeman,  58 
.T.  638— Kay,  J. 


I 


Hospital  not  •Tilting.]  —  A  legacy  to  an 
ophthalmic  hospital  which  had  ceased  to  exist 
at  the  date  of  the  testator's  will  failed  :— Held 
to  have  lapsed  and  not  to  be  administered  cy- 
pres, (key,  In  re,  Broadbent  v.  Barrow,  29 
Ch.  D.  560 ;  54  L.  J.,  Ch.  752  ;  52  L.  T.  849 ; 
S3  W.  R.  821— Pearson,  J. 

Almshouses— Site  not  obtainable.]— A  testa- 
tor, a  tin  plate  worker,  bequeathed  1,000/.  Con- 
mis  to  the  master,  wardens,  &c.,  of  the  Tinplate 
Workers'  Company,  upon  trust  with  the  proceeds 
▼hen  a  proper  site  could  be  obtained  to  build 
in  men  part  of  England  as  they  should  think 
fit  almshouses  for  the  use,  first,  of  poor  livery- 
men of  the  company,  then  of  poor  freemen  of 
the  company,  and,  lastly,  of  any  poor  men  of 
the  trade  of  a  tinplate  worker ;  and  he  declared 
that  he  had  made  the  bequest  in  the  hope  that 
some  other  person,  actuated  by  the  same  chari- 
table feelings,  wonld  thereafter  sufficiently 
endow  the  almshouses ;  and  he  bequeathed  the 
residue  of  his  estate  to  various  persons.  After 
the  testator's  death  the  company  unsuccessfully 
endeavoured  to  obtain  a  site  for  the  almshouses, 
•ad  it  appeared  that  there  was  no  reasonable 
prospect  of  a  site  being  obtained,  and  that, 
even  if  it  could  be,  the  company  had  no  income 
available  for  the  endowment  and  maintenance 
of  the  almshouses  : — Held,  that  as  the  object  of 
the  gift  had  failed,  the  fund  fell  into  the  residue 
K  a  lapsed  legacy,  and  was  not  applicable 
ey-pres.  White's  Trusts,  In  re,  33  Ch.  D.  449  ; 
K  L.  J.,  Ch.  701 ;  55  L.  T.  162  ;  34  W.  R.  771 ; 
50  J.  P.  695— V.-C.  B. 


IL  TJ8ES  AND  TRUSTS. 

"  Separations,  Ornaments,  and  other  necessary 
OrmwBj  of  Church  "—Erection  of  Spire— Sala- 
°*  of  Ytrgers.  1 — By  a  decree  of  charitable  uses, 
*»de  in  1638,  the  rents  of  a  piece  of  land  were 
wRcted  to  be  applied  "for  and  towards  the 
reparations,  ornaments,  and  other  necessary  oc- 
casions" of  a  parish  church.  In  1859  a  new 
couch  was  substituted  for  the  old  parish  church, 
•ad  the  charity  transferred  to  it ;  the  new  church 
na  originally  intended  to  have  a  spire,  but 
Jjjig  to  lack  of  funds  this  had  never  been  built. 
Ihe  rents  of  the  charity  largely  increased,  and 

jkjdjthat  the  erection  of  the  spire  was  a 
-Jfccemary  occasion,**  and  that  a  part  of  the 
nmds  might  be  devoted  to  the  purpose,  but  that 


the  salaries  of  persons  employed  in  or  about  the 
church  did  not  fall  within  the  scope  of  the  ori- 
ginal charity.  Palatine  Estate  Charity,  In  re, 
39  Ch.  D.  54  ;  57  L.  J.,  Ch.  751 ;  58  L.  T.  925  ; 
36  W.  R.  732— Stirling,  J. 

Lease  of  Site  for  Workhouse — Belief  of  Poor — 
Non-enrolment.] — By  a  lease  dated  in  1747 — 
after  reciting  that  the  inhabitants  of  the  parish 
of  G.  had  resolved  to  build  a  workhouse  for  the 
better  reception  and  employment  of  the  poor  of 
the  parish,  and  had  applied  to  the  lessor  for  a 
lease  of  the  land  demised,  and  that  the  lessor, 
"in  order  to  encourage  so  good  a  work,"  had 
consented  to  grant  the  lease — a  piece  of  land 
was  demised  for  a  term  of  160  years,  to  com- 
mence from  a  day  fifteen  days  later  than  the 
date  of  the  lease,  at  the  yearly  rent  of  1*..  to 
several  persons,  one  of  whom  was  the  vicar  of 
G..  in  trust  that  the  lessees  might  build  a  work- 
house upon  the  land  "  for  the  better  reception 
and  employment,  and  for  the  lodging  and  enter- 
tainment only  of  all  the  poor  people  of  the  parish 
of  G.  for  the  time  being  during  the  said  term,  in 
such  manner  as  they,  or  the  major  part  of  them, 
shall  think  fit,  at  the  proper  costs  and  charges  of 
the  inhabitants  of  the  said  parish  of  G.,  or  other- 
wise, and  not  to  be  let,  mortgaged  for  money,  or 
assigned,  to  any  other  use,  intent,  or  purpose 
whatsoever/'  And  it  was  agreed  that,  if  the 
inhabitants  should  discontinue  the  prescribed 
use  of  the  building  so  to  be  erected,  and  should 
be  willing  to  deliver  it  to  the  landlord,  it  should 
be  lawful  for  them  to  do  so,  he  paying  to  the 
churchwardens  or  overseers  of  the  parish  the 
then  value  of  the  building.  The  deed  was  not 
enrolled  under  the  Mortmain  Act,  1736  (9  Geo.  2, 
c.  36).  A  workhouse  was  duly  erected  on  the 
demised  land  pursuant  to  the  lease.  In  1862, 
the  workhouse,  being  no  longer  required,  was 
pulled  down,  and  no  rent  having  been  paid 
under  the  lease  since  1776,  the  site  was  conveyed 
to  a  purchaser  in  fee  under  the  Act  of  5  &  6 
Will.  4,  c.  69,  enabling  the  parish  authorities  to 
sell  the  sites  of  disused  workhouses.  An  action 
having  been  brought  by  a  person  claiming  to  be 
the  reversioner  against  persons  —  as  alleged 
assigns  of  the  lease — claiming  under  the  pur- 
chase of  1862,  to  recover  the  arrears  of  rent : — 
Held,  that  the  lease  was  a  lease  for  "  charitable 
uses  : "  that  it  failed  to  comply  with  the  require- 
ments of  the  Mortmain  Act  in  that,  besides  non- 
enrolment,  it  did  not  take  effect  in  possession 
and  contained  reservations  in  favour  of  the 
grantor  in  the  shape  of  rent  and  something  in 
the  nature  of  a  right  of  pre-emption  ;  that  these 
defects  were  not  cured  by  s.  73  of  the  Poor  Law 
Act,  1844  (7  &  8  Vict.  c.  101),  that  act  curing 
only  one  defect,  namely,  want  of  enrolment ; 
and  that  the  lease  was  accordingly  void  ab 
initio,  and  that  the  Statute  of  Limitations  began 
to  run  against  the  grantor,  if  not  from  the  execu- 
tion of  the  lease,  at  all  events  from  the  time  the 
rent  ceased  to  be  paid.  Webster  v.  Southey,  36 
Ch.  D.  9  ;  56  L.  J.,  Ch.  785  ;  56  L.  T.  879  ;  35 
W.  R.  622  ;  52  J.  P.  36— Kay,  J. 

Semble,  land  acquired  by  parish  officers  to 
enable  them  to  perform  their  statutory  obliga- 
tions, as,  for  instance,  by  providing  a  workhouse, 
is  land  acquired  for  a  "  charitable  use."  Burnaby 
▼.  Barsby  (4  H.  &  N.  690)  questioned.    lb, 

Kanor  —  Grant  of  Woods  to  Copyholders  by 
Crown  as  Lord — Reparation  of  Sea  Dykes.]— By 


811 


CHARITY— Property. 


312 


a  return  to  a  commission  issued  by  Queen  Eliza- 
beth, who  was  lord  of  a  certain  manor  near  the 
sea,  the  commissioners,  in  consideration  of  the 
copyhold  tenants  undertaking  the  repair  of  a 
seaxiyke  which  had  up  to  that  time  been  charge- 
able to  the  lord,  granted  to  the  tenants  "  that 
they  shall  have  the  woods  growing  in  W.  Wood 
for  and  towards  the  reparation  of  "  a  particular 
portion  of  the'  sea-dykes  within  the  manor.  The 
surplus  proceeds  of  the  wood  cut  from  time  to 
time  by  the  tenants  were  invested  by  them,  and 
about  the  year  1765  they  cut  down  the  whole  of 
W.  Wood  (allowing  the  lord  to  take  possession 
of  the  soil),  and  invested  the  proceeds.  The  sea 
having  receded  from  the  part  of  the  manor  pro- 
tected by  the  sea-dyke,  the  copyhold  tenants  for 
the  time  being  brought  an  action  in  1882  for  a 
declaration  that,  subject  to  the  reparation  of  the 
sea-wall,  they  were  absolutely  entitled  to  the 
property  representing  the  invested  proceeds  of 
the  wood  : — Held,  that,  upon  the  true  con- 
struction of  the  return,  the  grant  of  the  wood 
made  by  Queen  Elizabeth  constituted  a  charity 
or  gift  for  charitable  purposes ;  and  a  scheme 
was  directed  for  the  management  and  applica- 
tion of  the  trust  property.  Wilson  v.  Barnes.  38 
Ch.  D.  507— C.  A. 

Common  Lands — Enclosure— Trust  for  Occu- 
piers of  a  class  of  Houses— Bights  of  Lord- 
Bights  of  Owners.] — By  a  local  enclosure  act 
commissioners  were  required  to  allot  to  the  lords 
of  the  manors, "  in  trust  for  the  occupiers  for 
the  time  being  of  all  such  cottages  and  tenements 
containing  less  than  one  acre  each  as  were 
erected  on  ancient  sites  or  have  now  been 
erected  more  than  fourteen  years,  in  lieu  of 
their  rights  or  pretended  rights  of  cutting 
turves,"  so  much  of  the  waste  grounds  as  the 
commissioners  should  think  proper  for  a  turf 
common,  which  should  be  managed  and  the 
turf  arising  therefrom  taken  and  used,  by  the 
occupiers  of  such  cottages  in  such  manner  as  the 
lords  of  the  manors  and  the  churchwardens  and 
overseers  of  the  poor  acting  within  each  manor 
should  appoint.  In  pursuance  of  the  act  the 
commissioners  allotted  lands  for  a  turf  common. 
A  portion  of  these  lands  was  taken  by  a  railway 
company,  and  the  purchase-money  was  paid  into 
court.  A  question  was  then  raised  as  to  who  was 
entitled  to  the  fund :— Held,  (1)  that  the  lord 
was  entitled  to  so  much  of  the  fund  in  court  as 
represented  the  value  of  the  soil  of  the  land 
taken  by  the  railway  company  ;  (2)  that  the 
trust  was  for  the  benefit  of  the  occupiers  for  the 
time  being  of  the  cottages,  and  not  a  trust  for 
the  owners,  who  were  only  entitled  to  benefit  by 
the  addition  to  the  value  of  the  occupation 
caused  by  the  gift  of  the  right  to  the  occupiers  : 
(3)  that  the  trust  in  favour  of  the  occupiers  was 
a  charitable  and  not  a  private  trust.  Christ- 
church  Inclosure  Act,  In  re,  38  Ch.  D.  520  ;  57 
L.  J.,  Ch.  564  ;  58  L.  T.  827— C.  A. 

Charitable  Trusts  Aet,  1853— Jurisdiction.]— 

On  a  summons  issued  under  the  Charitable 
Trusts  Act,  1853,  the  court  has  jurisdiction  to 
entertain  the  question  whether  a  trust  is  or  is  not 
charitable  under  which  the  property,  which  is 
the  subject  of  the  summons,  is  held.  Norwich 
Town  Close  Estate,  In,  re,  40  Ch.  D.  298;  60 
L.  T.  202  ;  37  W.  B.  362— C.  A.  Reversing  57 
L.  J.,  Ch.  958— Kekewich,  J. 


Duty  of  Trustees  when  main  purpose  of  Trust 
impossible.] — If  the  trustees  of  a  public  charit- 
able trust  cannot  carry  out  the  main  purpose  of 
the  trust  in  the  mode  the  donor  has  expressed,  it 
is  their  duty  to  apply  to  the  court  for  directions, 
Andrews  v.  McOuJfog,  11  App.  Cas.  313— H.  L. 
(Sc). 

Fund— Conflicting  Claims— Bomilly's  Art- 
Jurisdiction.] — The  court  has  jurisdiction  under 
Bomilly's  Act  (52  Geo.  3,  c.  101),  to  adjudicate 
between  the  conflicting  claims  of  different  chari- 
ties where  the  claims  depend  on  the  construction 
of  the  same  deed.  Upton  Warren,  In  re,  (1  My. 
&  K.  410),  followed.  Hospital  for  Incurable*, 
In  re,  13  L.  B.,  Ir.  361— M.  B. 

Trust  Deed  of  Chapel.]— See  Ecclesiastical 
Law. 

III.  PBOPEBTY. 

Bating  —  Exemption  from  General  District 
Bate.] — The  objects  of  the  Railway  Servants' 
Orphanage  at  Derby  are  restricted  to  children  of 
railway  servants  throughout  the  kingdom.  Its 
income  is  almost  altogether  derived  from  volun- 
tary contributions  of  the  public.  In  1883  it  was 
rated  under  the  Public  Health  Act,  1875.  Ex- 
emption was  claimed  on  the  ground  that  the 
orpnanage  was  a  public  charity  within  s.  103  of 
a  local  act  of  6  Geo.  4,  c.  cxxxii.  The  borough 
justices,  to  whom  application  had  been  made  by 
the  corporation  to  enforce  the  rate,  considered 
that  the  orphanage  was  in  the  nature  of  a  self- 
supporting  benevolent  institution,  and  was  not 
entitled  to  exemption,  but  stated  a  case  under 
20  &  21  Vict.  c.  43  :— Held,  that  this  was  a 
public  charity  within  the  local  act,  and  accord- 
ingly entitled  to  exemption.  Hall  v.  Derby 
Sanitary  Authority,  16  Q.  B.  D.  163 ;  55  L.  J., 
M.  C.  21  ;  54  L.  T.  175  ;  50  J.  P.  27&— D. 

London  Parochial  Charities— Jurisdiction  of 
Charity  Commissioners.] — Under  the  provisions 
of  the  Act  36  Geo.  3,  c.  61,  passed  in  1795,  s 
piece  of  land  was  vested  in  trustees  for  the 
purpose  of  building  a  workhouse  for  the  poor 
of  a  parish  in  the  city  of  London,  and  power  was 
given  to  raise  10,0002.,  to  pay  for  the  land  and 
the  building,  by  the  grant  of  annuities  for  lives 
or  years,  which  were  to  be  charged  on  rates 
which  the  act  authorized  to  be  levied  on  the 
parishioners.  The  act  provided  that  the  land 
should  be  held  "  for  the  use  and  benefit  of  the 
parish."  The  workhouse  was  built,  and  was 
used  for  many  years  for  the  poor  of  the  parish. 
In  1837  a  poor  law  union  was  formed,  and,  the 
workhouse  being  no  longer  required,  the  income 
of  the  property  was  thenceforth  applied  in  aid 
of  the  poor-rates  of  the  parish  : — Held,  that  the 
property  was  "  charity  property M  within  the 
meaning  of  the  City  of  London  Parochial 
Charities  Act,  1883,  and  was  subject  to  the  juris- 
diction of  the  Charity  Commissioners  under  that 
act.  St.  Botolph  Estates,  In  re,  35  Ch.  D.  142  ; 
56  L.  J.,  Ch.  691 ;  56  L.  T.  884  ;  35  W.  B.  688— 
North.  J. 

Advowson— Vicarage  House.] — An  im- 
propriate rectory  was  granted  to  trustees  in 
trust  for  the  benefit  of  a  parish  in  the  city  of 
London,  and  the  choice  of  the  vicar  was  made 
by  the  parishioners.    A  vicarage-house  was  also 


318 


CHAEITY— Endowed  Schools. 


314 


bdd  on  like  trusts  for  the  benefit  of  the  parish, 
and  used  by  the  vicar  for  the  time  being : — 
Hett,tbat  the  advowson,as  well  as  the  vicarage- 
hrae,  was  charity  property  within  the  City  of 
London  Parochial  Charities  Act,  1883.  St. 
9ttphe»'f,  Coleman  Street,  In  re,  St.  Mary's, 
Aldermanbury,  In  re,  39  Ch.  D.  492  ;  57  L.  J., 
Ch.  917 ;  69  L.  T.  393  ;  36  W.  R.  837— Kay,  J. 

An  advowson  is  no  exception  from  the  general 
kw  at  to  charitable  trusts.  The  dicta  in  Att.- 
Gtn.  t.  Parker  (1  Ves.  sen.  43  ;  3  Atk.  576), 
AttsGt*.  v.  Forster  (10  Ves.  335),  Att.-Qen. 
v.  Knoeembe  (14  Ves.  1),  and  AM.- Gen.  v. 
Welder  (20  L.  R.,  Kq.  483)  considered.    lb. 

—  Consecrated  Ground— User  for  Secular 
Fiipoaat] — Part  of  certain  property  consisted 
of  three  houses  on  the  site  of  a  church,  which 
church  was  Tested,  by  an  Act  of  1536,  in  the 
parson,  churchwardens,  parishioners,  and  their 
ocoeaaors,  "in  free  alms  for  ever."  The  re- 
mainder of  the  property  was  held  by  the  parson, 
churchwardens,  and  parishioners,  under  a  lease 
granted  in  1587, "  for  the  relief,  and  maintenance 
of  the  poor,  aged,  impotent,  and  diseased  persons- 
of  the  said  parish,  and  for  the  necessary  repara- 
tions of  the  6&id  parish  church  of  St.  Alphege." 
The  rents  of  all  the  properties  had  been  applied 
for  general  parish  purposes  : — Held,  that,  assum- 
ing the  houses  were  built  on  consecrated  ground, 
i  omt  of  the  rents  for  three  hundred  years  for 
general  parish  purposes  made  them  charity  pro- 
perty within  a  5  of  the  City  of  London  Parochial 
Charities  Act,  1883 ;  that  the  parson,  church- 
wardens, and  parishioners  did  not  constitute  a 
corporation  except  for  the  purpose  of  taking  the 
church  granted  by  the  Act  of  1536  ;  and  that 
"vested  interests  "  meant  interests  such  as  those 
of  persons  who  received  a  remuneration  out  of 
charity  property,  and  that  the  parson,  church- 
wardens, and  parishioners  had  no  vested  interest 
within  the  meaning  of  the  Act.  St.  Alphege, 
Lnden  Wall,  In  re,  59  L.  T.  614— Kay,  J. 

—  ''Vested  Interests  "—What  are.]  —  A 
rated  interest  under  the  City  of  London  Paro- 
chial Charities  Act,  1883,  means  an  emolument 
received  by  some  person  in  respect  of  some  office 
which  he  holds,  an  emolument  which  that  per- 
«m  receives  for  his  own  benefit.  The  word 
*  person  "  includes  amy  body  of  persons,  whether 
corporate  or  unincorporate.  Where  the  petitioners 
had  no  vested  interest  in  the  property  the  sub- 
ject of  the  petition,  the  court  has  no  jurisdiction 
under  the  above  statute.  St.  John  the  Evan- 
frfirf,  In  re,  59  L.  T.  617— Kay,  J.  See  also 
preceding  case. 

■ale  of  Lands  —  Charity  Commissioners.] — 
n"here  a  railway  company  under  its  compulsory 
powers  had  taken  a  certain  house  belonging  to  a 
city  ward  :— Declared,  on  adjourned  summons, 
that  neither  the  consent  of  the  Charity  Commis- 
aooere  nor  of  the  Lords  of  the  Treasury  was 
necessary,  and  that  it  was  not  necessary  for  the 
■le  to  be  completed  under  the  provisions  of  the 
lands  Clauses  Consolidation  Acts,  1845, 1860,  and 
1859.  Ftnnu  to  Forbes,  Finnis,  Ex  parte,  24 
Ch.  D.  587 ;  53  L.  J.,  Ch.  140  ;  48  L.  T.  813  ;  32 
W.  B.  66— V.-C.  B. 

Where  a  railway  company  under  its  compul- 
sory powers  took  a  certain  house  belonging  to  a 
charity  school : — Held,  that,  being  supported  by 
Tohmtary  contributions,  the  school  came  within 


the  exemptions  of  s.  62  of  the  Charitable  Trusts 
Act,  1853,  and  s.  48  of  the  Act  of  1855  ;  that  the 
consent  of  the  Charity  Commissioners  was  not 
necessary,  and  that  it  was  not  necessary  that  the 
sale  should  be  completed  under  the  provisions  of 
the  Lands  Clauses  Consolidation  Acts,  1845, 1860, 
and  1869.  Finnis  to  Forbes,  Tower  Ward  Softools 
Trustees,  Ex  parte,  24  Ch.  D.  591  ;  63  L.  J.,  Ch 
141 ;  48  L.  T.  814  ;  32  W.  R.  55— V.-C.  B. 


Allotments.] — The  Allotments  Extension 


Act,  1882,  has  not  taken  away  from  the  Charity 
Commissioners  the  power  of  authorising  a  sale 
of  charity  lands  vested  in  them  under  the  Charit- 
able Trusts  Act,  1853,  and  the  Charitable  Trusts 
Amendment  Act,  1855.  Sutton  (Parish  of)  to 
Church,  26  Ch.  D.  173 ;  53  L.  J„  Ch.  599  ;  50 
L.  T.  387  ;  32  W.  R.  485— Chitty,  J. 


IV.    ENDOWED   SCHOOLS. 

Soheme — Applications  of  Funds — Denomina- 
tional School.] — Where  the  commissioners  by 
their  scheme  provided  that  certain  endowments 
which  had  heretofore  been  applied  in  carrying  on 
the  schools  of  a  particular  parish,  should  thence- 
forth be  applied  in  exhibitions  for  the  benefit  of  a 
larger  area  of  schools : — Held,  that  this  was  within 
their  powers  under  s.  9  of  the  Endowed  Schools 
Act,  1869,  and  that  being  so  the  way  in  which 
those  powers  had  been  exercised  was  not  the 
proper  subject  of  appeal.  Held,  that  a  charity 
which  has  no  instrument  of  foundation,  or 
statutes,  or  duly  authorised  regulations  impress- 
ing upon  it  a  denominational  character,  does  not 
fall  within  the  19th  clause  of  the  act  of  1869,  or 
the  7th  clause  of  the  act  of  1873.  Its  trustees 
cannot  impress  upon  it  that  character,  nor  is  any 
practice  for  the  time  being  as  to  the  application 
of  its  funds,  sufficient  evidence  of  there  ever 
having  been  regulations  in  existence  which  pre- 
scribed it.  Where  a  charity  is  established  by 
subscriptions,  the  original  subscribers  alone  are 
the  founders,  the  later  benefactions  are  on  the 
footing  of  the  original  foundation.  If  its  regu- 
lations are  relied  upon  as  impressing  upon  it  a 
denominational  character,  they  must  be  shown 
to  have  been  authorised  by  all  the  founders,  and 
to  have  been  issued  before  fifty  years  from  their 
deaths.  St.  Leonard,  Shoreditoh,  Schools,  In  re, 
10  App.  Cas.  304  ;  56  L.  J.,  P.  C.  30 ;  51  L.  T. 
305  ;  33  W.  R.  766— P.  C. 

Removal  of  Site — Vested  Interests — "Due 
regard.1'] — The  removal  of  the  site  of  a  school 
is  within  the  scope  of  the  Endowed  Schools  Act, 
1869,  and  the  powers  conferred  on  the  Commis- 
sioners by  s.  9.  An  annual  sum  temporarily  ap- 
plied to  the  purposes  of  the  school  is  an  endow- 
ment within  the  meaning  of  8.  5.  Hemsworth 
Free  Grammar  School,  In  re,  12  App.  Cas.  444  ; 
66  L.  J.,  P.  C.  52  ;  66  L.  T.  212  ;  35  W.  R.  418— 
P.O. 

Section  19  does  not  relate  to  an  endowment 
which  has  been  (whatever  its  original  founda- 
tion) subjected  to  a  scheme  providing  that 
religious  instruction  in  the  liturgy,  catechism, 
and  articles  of  the  Church  of  England  shall  be 
given,  not  to  all  boys,  but  to  the  boys  of  parents 
in  that  communion  and  the  boys  of  other  parents 
who  do  not  object  thereto  in  writing.  "  Due  re- 
gard "  (see  Hodgson's  School,  In  re,  3  App.  Cas. 
869)  had  under  the  circumstances  been  paid  to 


315 


CHARITIES — Actions  by  and  against. 


316 


the  educational  interests  contemplated  by  s.  11. 
"Entitled/1  in  s.  11,  means  legally  entitled. 
Sutton  Coldjield  Grammar  School,  In  re  (7 
App.  Cas.  91),  followed.  The  interest  of  a  boy 
on  the  foundation  of  a  school  is  not  saved  or 
directed  to  be  compensated  by  the  Act  of  1869, 
unless  he  was  there  at  the  date  of  the  passing 
thereof.    lb. 


V.  ACTIONS  BY  AND  AGAINST  CHARI- 
TABLE BODIES. 

Resident  Medical  Officer— Hospital— Consent 
of  Charity  Commissioners.]— The  plaintiff  had 
been  appointed,  in  pursuance  of  certain  rules 
framed  by  the  committee  of  a  hospital  estab- 
lished by  a  trust  deed  of  March,  1879,  under  the 
powers  conferred  by  the  deed,  resident  medical 
superintendent  of  the  institution  for  life,  sub- 
ject to  his  removal  on  three  months1  notice  by 
the  committee  on  proof  to  them  of  neglect  of 
duty  ;  and  he  was  let  into  possession  of  a  house 
which  was  annexed  to  the  office.  The  funds  of 
the  hospital  not  being  sufficient  to  maintain  a 
resident  medical  officer,  the  committee  gave  the 
plaintiff  three  months'  notice  of  removal,  no 
charge  of  neglect  of  duty  being  brought  against 
him.  The  committee  gave  the  notice  with  the 
intention  of  applying  for  a  new  scheme  which 
would  render  the  office  unnecessary.  The  plain- 
tiff commenced  an  action  against  the  committee 
for  a  declaration  that  he  was  entitled  to  hold  his 
office  during  good  behaviour,  and  for  an  injunc- 
tion to  restrain  them  from  ejecting  him  from  his 
residence  and  from  otherwise  interfering  with 
the  tenure  of  his  office  : — Held,  by  Chitty,  J.,  on 
motion  for  an  injunction,  that  the  plaintiff  be- 
fore issuing  his  writ  ought  to  have  obtained  the 
certificate  of  the  Charity  Commissioners  as  re- 
quired by  s.  17  of  the  Charitable  Trusts  Act, 
1853,  and  the  motion  was  refused  with  costs  : — 
Held,  by  the  Court  of  Appeal,  that  if  the  object 
of  the  action  was  anything  beyond  preventing 
the  defendants  from  excluding  the  plaintiff,  it 
required  the  sanction  of  the  commissioners. 
And  the  defendants  at  the  bar  expressing  their 
intention  not  to  exclude  the  plaintiff  unless  and 
until  a  new  scheme  should  be  sanctioned,  or 
until  the  trial  of  the  action,  the  order  of  the 
court  below  was  affirmed.  Benthall  v.  Kilmorey 
(AW),  25  Ch.  D.  39  ;  53  L.  J.,  Ch.  298  ;  50  L.  T. 
137;  32  W.  R.  69  -C.  A. 

S.  P.,  Brittain  v.  Overtan,  26  Ch.  D.  41,  n.; 
63  L.  J.,  Ch.  299,  n. ;  49  L.  T.  128,  n. ;  32  W.  R. 
27,  n.— Jessel,  M.  R. 

Members  of  Committee  of  Church  Fund — 
Attorney-General — Consent  of  Commissioners.] 

— An  action  was  brought  by  five  of  the  members 
of  a  church  building  committee  on  behalf  of 
themselves  and  the  other  members  of  the  com- 
mittee, against  a  former  member,  claiming  an 
account  of  all  moneys  received  and  paid  by  him 
in  respect  of  the  church  building  fund  during 
the  period  of  his  membership.  The  fund  was 
raised  by  voluntary  contributions ;  seventeen 
persons  having  constituted  themselves  into  a 
committee  to  receive  subscriptions  for  the  pur- 
pose of  improving  the  parish  church  and  to 
apply  the  moneys  thus  collected : — Held,  that 
the  members  of  the  committee  being  mere 
agents  of  the  subscribers,  the  action  could  not 
be  maintained  by  some  of  the  agents  against  the 


others,  but  that  even  if  all  the  subscribers  were 
suing  the  action  could  not  be  maintained  in  the 
absence  of  the  attorney-general.  Whether  the 
action  could  be  maintained  without  the  certifi- 
cate of  the  Charity  Commissioners,  quaere. 
Strickland  v.  Weldon,  28  Ch.  D.  426 ;  54  L.  J., 
Ch.  452 ;  62  L.  T.  247  ;  33  W.  R.  545-Pesr- 
son,  J. 

Consent  of  Charity  Commissioners— "Volun- 
tary Contributions."]— See  Pease  v.  Pattmon, 
ante,  col.  308. 


CHARTER-PARTY. 

See  SHIPPING. 


CHEQUES. 

See  BILLS  OF  EXCHANGE. 


CHILDREN. 

1.  Abduction.— See  Criminal  Law. 

2.  Bastard.— See  BASTARDY. 

3.  Gifts  to,  by  Will.— See  Will. 

4.  In  other  doses. — See  Infant. 


CHINA  SETTLEMENTS. 

See  COLONY. 


CHOSE-IN-ACTION. 

See  ACTION. 


CHURCH  AND  CHURCH- 
WARDENS. 

See  ECCLESIASTICAL  LAW. 


CLERGY. 

See  ECCLESIASTICAL  LAW. 


817 


COLONY — Particular  Colonies. 


318 


CODICIL. 


See  WILL. 


COLLIERY. 

See  MIKES  AND  MINERALS. 


COLLISION. 

1.  0%  Roads  or  Hallway*. — See  Negligence. 

2.  0%  High  Seat  or  JUven.—See  Shipping. 


COLONY. 

I.  Particular  Colonies. 

1. 

Australia. 

a.  New  South  Wales. 

b.  Queensland. 

c.  South  Australia. 

d.  Victoria. 

e.  West  Australia. 

2. 

British  North  America. 

3. 

Cape  of  Good  Hope. 

4. 

Ceylon. 

5. 

China  Settlements. 

6. 

Jersey. 

7. 

Malta. 

8. 

Mauritius. 

9. 

Newfoundland. 

10. 

New  Zealand. 

11. 

Straits  Settlements. 

12. 

Trinidad. 

IL  APPEALS  TO  THE  PRIVY  COUNCIL. 

L  PABTICULAB  COLONIES. 

1.  Australia. 

a.  New  South  Wales. 

Crown  Leadi — Conditional  Furohase  forfeited.] 
—The  defendant  haying  applied  for  a  grant, 
partly  on  conditional  purchase,  and  partly  on 
conditional  lease,  of  land  within  the  external 
boundaries  of  the  plaintiff's  leasehold  area, 
u  determined  by  the  Minister  of  Lands,  under 
the  Crown  Lands  Act  of  1884,  it  appeared 
that  the  said  portions  had  prior  to  that  act  been 
oanditionally  sold  by  the  Government,  and  sub- 
sequent to  the  act  forfeited  by  the  purchaser  : — 
Held,  that  the  said  portions  of  land  did  not  on 
wch  forfeiture  become  part  of  the  pastoral  lease- 
hold, bat  became  Crown  lands  within  a  4  of  the 
act,  and  could  be  validly  regranted  by  the  Crown 
on  conditional  purchase  or  conditional  lease. 
fori*  v.  Edols,  13  App.  Cas.  183 ;  57  L.  J., 
P.  C.  68 ;  58  L.  T.  360— P.  C. 


Government — Liability  to  be  sued  in  Tort.] — 

Under  New  South  Wales  Act,  39  Vict  No.  38, 
the  government  of  the  colony  is  liable  to  be 
sued  in  an  action  of  tort.  Hettihewaye  Siman 
Appu  v.  Queen's  Advocate  (9  App.  Cas.  571), 
relates  exclusively  to  the  law  of  Ceylon,  and 
does  not  lay  down  as  a  universal  principle  that 
actions  ex  delicto  cannot  be  brought  against  the 
Crown.  Farnell  v.  Bowman,  12  App.  Cas.  643 ; 
56  L.  J.,  P.  C.  72  ;  57  L.  T.  318— P.  (J. 

Intestacy — Devolution  of  Beal  Estate.] — 
The  intention  of  the  New  South  Wales  Beal 
Estate  of  Intestates  Distribution  Act,  1862,  was 
to  introduce  a  new  rule  of  succession  to  real 
estate,  and  to  enact  that  in  cases  of  intestacy  it 
should  be  administered  and  should  devolve  pre- 
cisely as  chattels  real  did  before  : — Held,  that 
such  rule  applies  to  all  cases,  and  not  merely  to 
those  cases  in  which  the  dead  owner  has  actually 
left  an  heir.  Wenttoorth  v.  Humphrey,  11  App. 
Cas.  619 ;  55  L.  J.,  P.  C.  66  ;  55  L.  T.  532— 
P.O. 

Legislature— -Powers  of— Duties  levied  under 
Order  in  Counoil.] — A  colonial  legislature  is  not 
a  delegate  of  the  Imperial  legislature.  It  is 
restricted  in  the  area  of  its  powers,  but  within 
that  area  it  is  unrestricted.  Therefore  the 
Customs  Regulation  Act  of  1879,  s.  133,  is 
within  the  plenary  powers  of  legislation  con- 
ferred upon  the  New  South  Wales  Legislature 
by  the  Constitution  Act  (scheduled  to  18  &  19 
Vict.  c.  54),  as.  1  and  45.  Further,  duties  levied 
by  an  Order  in  Council  issued  under  s.  133,  are 
really  levied  by  authority  of  the  legislature  and 
not  of  the  executive.  Under  s.  133  "  the  opinion 
of  the  collector,"  whether  right  or  wrong,  autho- 
rises the  action  of  the  governor.  Powell  v.  Apollo 
Candle  Company,  10  App.  Cas.  282 ;  54  L.  J., 
P.  C.  7  ;  53  L.  T.  638— P.  C. 

Legislative  Assembly— Member — Power  of 
Suspension.] — The  respondent  having  entered 
the  chamber  of  the  New  South  Wales  Assembly, 
of  which  he  was  a  member,  within  a  week  after 
it  had  passed  a  resolution  that  he  be  "  suspended 
from  the  service  of  the  House,"  he  was  removed 
therefrom  and  prevented  from  re-entering  it: — 
Held,  in  an  action  of  trespass,  that  the  resolution 
must  not  be  construed  as  operating  beyond  the 
sitting  during  which  the  resolution  was  passed. 
Barton  v.  Taylor,  11  App.  Cas.  197  ;  55  L.  J., 
P.  C.  1  ;  55  L.  T.  158— P.  C. 

Held,  further,  that  the  standing  order  of  the 
Legislative  Assembly  adopting  so  far  as  is  appli- 
cable to  its  proceedings  the  rules,  forms,  and 
usages  in  force  in  the  British  House  of  Commons, 
and  assented  to  by  the  Governor,  was  valid,  but 
must  be  construed  to  relate  only  to  such  rules, 
forms,  and  usages  as  were  in  existence  at  the 
date  of  the  order.  The  powers  incident  to  or 
inherent  in  a  Colonial  Legislative  Assembly  are 
"  such  as  are  necessary  to  the  existence  of  such 
a  body  and  the  proper  exercise  of  the  functions 
which  it  is  intended  to  execute,"  and  do  not 
extend  to  justify  punitive  action,  or  uncondi- 
tional suspension  of  a  member  during  the 
pleasure  of  the  Assembly.  Doyle  v.  Falconer 
(1  L.  B.,  P.  C.  328)  approved.    lb. 


Lunatio — Payment  out  of  fund  in 
court  to  Master  in  Lunacy.]— In  October,  1860, 
F.  B.,  ha?ing  become  of   unsound  mind,  was 


319 


COLONY— Particular  Colonies. 


820 


admitted  as  an  insane  patient  into  the  public 
hospital  at  P.,  in  the  colony  of  New  South 
Wales,  where  she  still  remained.  There  had 
been  no  judicial  declaration  as  to  her  unsound- 
ness of  mind.  In  December,  1886,  a  fund  to 
which  the  lunatic  was  entitled  under  the  will  of 
her  father  was  paid  into  court  under  the 
provisions  of  the  Trustee  Relief  Act  On  a 
petition  presented  by  the  Master  in  Lunacy  of 
New  South  Wales,  and  by  the  lunatic  by  her 
next  friend,  asking  that  the  whole  of  the  fund 
might  be  paid  out  to  the  master : — Held,  that 
although  by  42  Vict.  No.  7  (the  New  South 
Wales  statute  relating  to  the  insane)  the  master 
was  empowered  to  collect  the  assets  of  the 
lunatic  in  the  colony,  no  such  power  was  given 
to  him  with  reference  to  assets  in  England  : 
that  although  the  court  had  jurisdiction  to 
direct  payment  to  the  master  of  the  corpus, 
where  such  payment  was  shown  to  be  necessary 
for  the  protection  and  maintenance  of  the 
lunatic,  no  such  necessity  had  been  shown 
in  the  present  case  : — Held,  therefore,  that  the 
dividends  only  to  arise  from  the  fund  should  be 
paid  to  the  master  during  the  life  of  the  lunatic, 
and  so  long  as  she  should  remain  an  insane 
patient  in  New  South  Wales.  Barlow,  In  re, 
Barton  v.  Spencer,  36  Ch.  D.  287  ;  56  L.  J.,  Oh. 
795  ;  67  L.  f .  95  ;  85  W.  B.  737— C.  A. 

Mortgage — Foreclosure— Banking  Company.] 

— There  is  nothing  in  the  acts  incorporating 
the  Bank  of  New  South  Wales  which  takes  away 
from  them  the  power  of  foreclosing,  the  mort- 
gage in  suit  having  been  legally  and  properly 
taken  by  the  bank,  and  in  terms  involving 
foreclosure.  The  statutory  provision  that  the 
bank  should  hold  any  security  which  it  had 
taken  "  for  the  purpose  of  reimbursement  only 
and  not  for  profit,  could  not  take  away  the 
power  of  foreclosure  expressly  attached  by 
statute  to  the  mortgage.  Bank  of  Few  South 
Wale*  v.  Campbell,  11  App.  Oas.  192  ;  55  L.  J., 
P.  C.  31  ;  54  L.  T.  340— P.  C. 

Municipality— Validity  of  Bye-law.]— A  bye- 
law  made  in  pursuance  of  s.  153  of  the  Muni- 
cipalities Act,  1867,  empowering  municipal 
councils  to  make  bye-laws  for  regulating  the 
interment  of  the  dead  is  not  ultra  vires,  by 
reason  of  its  prohibiting  interment  altogether 
in  a  particular  cemetery,  and  thereby  destroying 
the  private  property  of  the  owners  of  burial 
places  therein.  Slattery  v.  Naylor,  13  App. 
Cas.  446 ;  57  L.  J.,  P.  C.  73  ;  59  L.  T.  41 ;  36 
W.  B.  897— P.  C. 

Railway  rates — "  Colonial v  wine. 1— By  the 
merchandise  rates  for  the  railways  of  a  colony, 
issued  under  the  sanction  of  the  government, 
"  colonial "  wine  was  to  be  carried  at  a  lower 
rate  than  other  wine  : — Held,  that  the  word 
"  colonial "  could  not  be  restricted  to  the  produce 
of  the  colony  in  which  the  regulations  were  in 
force  but  included  the  produce  of  any  colony. 
Commissioners  for  Railway*  v.  Hyland,  56 
L.  J.,  P.  C.  76  ;  56  L.  T.  896— P.  C. 

Tramways — Bight  to  ran  Steam  Motors  on.] — 
The  commissioner  for  railways  in  New  South 
Wales  has,  according  to  the  true  construction 
of  the  act  43  Vict.  No.  25,  s.  3,  a  legal  right  to 


run  steam  motors  upon  the  tramway  lines 
mentioned  in  the  2nd  schedule  thereto.  Semble, 
s.  5  is  sufficient  to  legalise  the  use  of  steam 
motors  upon  the  other  tramways  governed  by 
the  said  act.  Commissioner  for  Railways  v. 
Toohey,  9  App.  Cas.  720 ;  53  L.  J.,  P.  0.  91 ;  51 
L.  T.  582— P.  0. 


b.  Queensland. 

Gold  Fields— Holders  of  Miners* 
Bights  of  Crown  Lessees.] — In  an  action  by 
the  holders  of  "  miners'  rights  "  issued  to  them 
under  the  Gold  Fields  Act,  1874,  and  regulations 
made  thereunder,  to  set  aside  the  defendants' 
mining  leases,  also  thereunder  granted,  on  the 
grounds — (1)  that  /they  had  been  granted 
contrary  to  s.  11  within  two  years  from  the 
proclamation  of  the  goldneld  within  which  the 
leased  areas  were  contained ;  (2)  that  the  for- 
malities prescribed  by  the  regulations  had  not 
been  observed  by  the  defendants  when  applying" 
therefor  : — Held,  that  neither  under  toe  act 
nor  otherwise  had  the  plaintiffs  any  right  to 
interfere  with  the  lessees'  possession.  Sect  9 
gave  them  no  rights  whatever  as  against  lands 
let  by  the  Crown,  and  no  title  to  try  the  validity 
of  Orown  leases  relating  thereto ;  and  the  whole 
tenor  of  the  regulations  is  opposed  to  such  con- 
tention.    Osborne  v.  Morgan,  13  App.  Oas.  227 ; 

57  L.  J.,  P.  C.  52  ;  58  L.  T.  597— P.  C. 

In  an  action  for  substantially  the  same  pur- 
pose as  in  the  last  preceding  case,  bat  with  the 
additional  allegation  that  the  plaintiff  had  before 
action  with  the  view  of  fortifying  his  title  gone 
to  the  leasehold  area  for  the  purpose  of  taking 
possession  of  parcels  of  ground  within  it,  and  of 
working  them  as  claims,  but  was  prevented  by 
the  defendants : — Held,  that  this  made  no  dif- 
ference, as  such  proceedings  were  unauthorized 
by  the  act,  and  could  not  set  up  a  defective 
title.     Williams  v.  Morgan,  13  App.  Oas.  238 ; 

58  L.  T.  697— P.  C. 

Member  of  Legislative  Council — Non-attend- 
anee — Beat  vacated.] — Where  a  statute  provided 
that  "  if  any  legislative  councillor  shall  for  two 
successive  sessions  fail  to  give  his  attendance, 
without  permission,  his  seat  shall  thereby  become 
vacated ; "  and  a  councillor  absented  himself 
during  the  whole  of  three  sessions,  having  pre- 
viously obtained  a  permission  for  a  year,  which 
period  of  time  in  the  event  covered  the  whole 
of  the  first  and  part  of  the  second  session  :— 
Held,  that  his  seat  was  vacated.  The  per- 
mission did  not  cover  two  successive  sessions. 
Attorney- General  (Queensland)  v.  Gibbon,  12 
App.  Oas.  442  ;  66  L.  J.,  P.  0.  64  ;  56  L.  T.  239 
—P.  C. 


o.  South  Australia. 

Registration  Act — Priorities.] — Under  Regis- 
tration Act,  6  Vict.  No.  8,  3,  a  prior  document 
of  a  registrable  nature  unregistered  cannot 
convey  a  good  title  against  a  subsequent  docu- 
ment of  a  registrable  nature  registered  ;  but 
there  is  nothing  in  the  act  to  exclude  a  claim 
upon  an  unwritten  equity,  of  which  the  sub- 
sequent registered  purchaser  has  notice.  White 
v.  Neaylon,  11  App.  Cas.  171 ;  56  L.  J.,  P.  C. 
25;  64  L.  T.  688— P.  0. 


321 


COLONY— Particular  Colonies. 


322 


d.  Victoria. 

Action,  Botiee  ot]— An  action  against  the 
Melbourne  Harbour  Trust  Commissioners  is  an 
action  brought  against  a  "  person "  within  the 
mewing  of  s.  46  of  the  Melbourne  Harbour 
Rut  Act;  and  notice  in  writing  thereof  com- 
plying in  form  or  in  substance  with  the  require- 
ments of  the  section  is  necessary.  Union  Steam- 
ikip  Company  of  Xew  Zealand  v.  Melbourne 
Htrbour  Commissioner*,  9  App.  Cas.  365  ;  53 
L  J.,P.  C.  59;  50  L.  T.  337  ;  5  Asp.  M.  C.  222 
-P.  C. 

Arts,  Interpretation  ot] — Remarks  as  to  the 
effect  npon  interpretation  of  dividing  an  act  into 
parts  with  appropriate  headings.  Eastern  Coun- 
tin  and  London  and  Blachwall  Railway  Com- 
ftnie*  v.  Marriage (9  H.  L.  C.  32)  distinguished. 

Compensation — Lands  taken  Compulsorily— 
flst-dt] — According  to  the  true  construction  of 
the  35th  section  of  the  "  Victorian  Lands  Com- 
pensation Statute,  1869,"  in  assessing  under  the 
act  compensation  for  land  compulsorily  taken 
far  a  railway,  the  enhancement  in  value  of  the 
owners  adjoining  lands  may  be  set  off  against 
the  amount  allowed  for  damage  thereto  arising 
from  such  compulsory  taking  or  severance  ;  but 
may  not  be  allowed  against  the  compensation 
for  the  land  actually  taken.  Such  "  enhance- 
ment in  value  "  includes  that  which  arises  from 
the  nse  as  well  as  the  construction  of  the  rail- 
way. Harding  v.  Board  of  Land  and  Works, 
11  App.  Cas.  208  ;  55  L.  J.,  P.  C.  11 ;  55  L.  T. 

Crown— Binding  Character  of  Statute  on.]— 
The  Fictorian  Statute,  Crown  Liability  and 
Bemedies  Act,  1865  (28  Vict.  No.  241),  s.  17, 
does  not  affect  the  prerogative  of  the  Crown 
when  suing  in  this  country.  Oriental  Bank 
Csrporation,  In  re,  The  Crown,  Ex  parte,  28 
Ch.  D.  643 ;  54  L.  J.,  Ch.  327  ;  52  L.  T.  172— 
ChittyrJ. 

Powers  of  Legislature  —  Costa  of  Aotion  of 
Under.]— The  legislature  of  New  South  Wales 
his  power  to  repeal  the  Statute  of  James  (21 
Jac  1,  c  16),  s.  6,  and  has  impliedly  done  so  by 
11  Vict,  No.  13,  s.  1,  which,  according  to  its 
true  construction,  places  an  action  for  words 
spoken  npon  the  same  footing  as  regards  costs 
and  other  matters  as  an  action  for  written 
•lander.  Harris  v.  Homes,  10  App.  Cas.  279 ; 
54  L.  J.,  P.  C.  15  ;  53  L.  T.  601— P.  C. 

Delivery  of  Solicitors  BilL]— The  Common 
I*w  Procedure  Act  of  Victoria,  by  s.  389, 
provides  that  it  shall  be  lawful  for  the  court  in 
any  case  to  make  an  order  for  the  delivery  by 
»y  attorney  of  his  bill  of  costs,  and  s.  396 
provides  that  payment  of  such  bill  shall  in  no 
cue  preclude  the  court  from  referring  such  bill 
for  taxation,  provided  the  application  for  taxa- 
tion be  made  within  twelve  months  of  payment : 
—Held,  that  the  court  may  order  a  bill  to  be 
deuVered  under  s.  389,  though  such  bill  may 
■ot  be  liable  to  taxation  by  reason  of  such 
application  not  having  been  made  within  twelve 
months  of  payment  Huffett  v.  MoHcoy,  10  App. 
£*.  300 ;  54  U  J.,  P.  C.  25 ;  52  L.  T.  633— 
P.  C. 


e.  Weat  Australia* 

Notice— Bight  of  Resumption — Compensation.] 
— Where  the  crown  has  a  power  of  resumption 
under  the  terms  of  its  grant,  and  has  given 
lawful  notice  in  exercise  of  such  power,  such 
notice  must  not  be  deemed  to  be  under  8. 12  of 
the  Railways  Act  of  1878  (entitling  the  parties 
affected  to  compensation  under  s.  14)  ;  secus 
where  notice  could  not  have  been  lawfully  given 
except  under  this  act.  Thomas  v.  Sherwood, 
9  App.  Cas.  142 ;  63  L.  J.,  P.  C.  15 ;  50  L,  T. 
101— P.  C. 

2.  British  North  America. 

Adverse  Possession— Adjaoent  Owners — Aots 
of  Ownership.]  —  The  Civil  Code  of  Lower 
Canada  by  s.  2261,  provides  that  a  person  who 
in  good  faith  acquires  land  by  purchase  pre- 
scribes the  ownership  thereof  by  effective  posses- 
sion for  ten  years  in  virtue  of  his  title.  The 
appellant  ana  respondent  were  purchasers  of 
adjacent  lots  of  land.  The  appellant  marked 
off  his  boundary,  and  the  respondent  took  posses- 
sion of  his  lot  and  occupied  it  without  challenge 
for  more  than  ten  years : — Held,  in  a  suit  to 
settle  the  respective  boundaries,  that  the  marking 
out  of  the  lot  by  the  appellant  did  not  constitute 
possession,  and  that  possession  by  the  respondent 
for  more  than  ten  years  in  good  faith  and  in 
virtue  of  his  title  perfected  his  right  in  compe- 
tition with  the  appellant,  Dunn  v,  Lareau,  57 
L.J..P.  C.  108— P.  C. 

Arbitration  —  Duties  of  Amiables  Composi- 
teurs. "|  —  Arbitrators  who  are  also  appointed 
amiables  compositeurs  may,  under  art.  1346  of 
the  Civil  Code  of  Procedure,  dispense  with  the 
strict  observance  of  those  rules  of  law  the  non- 
observance  of  which  as  applied  to  awards  results 
in  no  more  than  irregularity ;  they  cannot  be 
arbitrary  in  their  dealings  with  the  parties  or 
disregard  all  law.  Where  such  arbitrators  in 
good  faith  obtained  from  one  of  the  parties  in 
the  absence  but  to  the  knowledge  of  the  other 
correct  information  as  to  the  law  bearing  upon 
the  case  before  them :  —  Held,  that  that  was 
not  an  irregularity  which  vitiated  the  award. 
Rolland  v.  Cassidy,  13  App.  Cas.  770  ;  57  L.  J., 
P.  C.  99  ;  59  L.  T.  873— P.  C. 


Barristers— Bights  and  Bemedies  ot] — Ac- 
cording to  the  law  of  Quebec,  a  member  of  the 
bar  is  entitled,  in  the  absence  of  special  stipula- 
tion, to  sue  for  and  recover  on  a  quantum  meruit 
in  respect  of  professional  services  rendered  by 
him,  and  may  lawfully  contract  for  any  rate  of 
remuneration  which  is  not  contra  bonos  mores, 
or  in  violation  of  the  rules  of  the  bar.  Where  a 
-member  of  the  bar  of  Lower  Canada  (Quebec) 
was  retained  by  the  Government  as  one  of  their 
counsel  before  the  Fisheries  Commission  sitting 
in  Nova  Scotia  : — Held,  that  in  absence  of  stipu- 
lation to  the  contrary,  express  or  implied,  he 
must  be  deemed  to  have  been  employed  on  the 
usual  terms  according  to  which  such  services  are 
rendered,  and  that  his  status  in  respect  both  of 
right  and  remedy  was  not  affected  either  by  the 
lex  loci  contractus  or  the  lex  loci  solutionis. 
Kennedy  v.  Brown  (13  C.  B.,  N.  S.  677)  com- 
mented upon.  And  further,  that  the  Petition  of 
Right  (Canada)  Act,  1876,  s.  19,  sub-s.  3,  does 
not  in  such  case  bar  the  remedy  against  the 

M 


828 


COLONY — Particular  Colonies. 


824 


Crown  by  petition.    Reg.  v.  Doutre,  9  App.  Cas. 
745 ;  53  L.  J.,  P.  0.  84  ;  51  L.  T.  669— P.  C. 

Contract— Consideration  — Sale  of  Alleged 
Claim.] — There  is  no  difference  between  the 
French  law,  which  prevails  in  Lower  Canada, 
and  the  English  law,  on  the  subject  of  the 
necessity  that  there  should  be  valuable  con- 
sideration for  a  contract  Any  benefit  to  the 
assignee,  or  any  loss  to  the  assignor,  is  such  a 
consideration;  and  therefore  the  sale  of  an 
alleged  claim  against  a  railway  company  for 
services  rendered,  which,  though  not  admitted, 
was  not  rejected  by  them,  was  held  a  sufficient 
consideration  to  support  an  action  for  the  pur- 
chase money.  Me  Oreevy  v.  Russell,  56  L.  T.  501 
— P.  C. 

Quasi  Contract — Commencement  de  Preuve.] 
— Where  a  landowner  has  empowered  his  agent 
to  aliene,  and  such  agent  has  without  a  completed 
contract  to  sell  allowed  an  intending  purchaser 
to  take  possession  of  a  plot,  effect  substantial 
improvements  in  the  reasonable  expectation  of 
obtaining  a  transfer  on  paying  a  proper  price, 
and  then  transferred  to  the  defendant,  wno  in 
turn  effected  improvements :— Held,  that  such 
landowner  has  thereby  laid  himself  under  an 
obligation,  such  as  in  Civil  Code,  art.  1041,  is 
called  a  quasi  contract,  to  confirm  the  defen- 
dant's possession  and  title  upon  payment  of  the 
price  thereof  according  to  the  rate  ruling  at  the 
time  of  commencing  the  improvements  with 
interest  from  that  date.  Commencement  de 
preuve  must  be  some  written  evidence  which 
lends  probability  to  that  which  is  sought  to  be 
proved  by  oral  evidence.  Price  v.  Neault,  12 
App.  Cas.  110 ;  56  L.  J.,  P.  C.  29— P.  C. 

Criminal  Law— Leave  to  Appeal.]— The  rule 
of  the  Judicial  Committee  is  not  to  grant  leave 
to  appeal  in  criminal  cases  except  where  some 
clear  departure  from  the  requirements  of  justice 
is  alleged  to  have  taken  place  : — Held,  that  34 
&  35  Vict.  c.  28,  which  authorises  the  Parliament 
of  Canada  to  provide  for  "the administration, 
peace,  order,  and  good  government  of  any  terri- 
tory not  for  the  time  being  included  in  any 
province,"  vests  in  that  parliament  the  utmost 
discretion  of  enactment  for  the  attainment  of 
those  objects.  Accordingly,  the  Canadian  Act, 
43  Vict.  c.  25,  is  intra  vires  the  legislature.  Riel 
v.  Reg.,  or  Reg.  v.  Riel,  10  App.  Cas.  675  ;  55 
L.  J.,  P.  C.  28 ;  54  L.  T.  339 ;  16  Cox,  C.  C.  48 
— P.C. 

Practice.  J— S.  76,  sub-s.  7,  of  43  Vict.  c. 

25  (Canada),  which  prescribes  that  full  notes  of 
evidence  be  taken,  is  literally  complied  with 
when  those  notes  are  taken  in  shorthand,    lb. 

Crown,  Eights  of— Priority  of  Payment.]— 

The  Crown  is  bound  by  the  two  Codes  of  Lower 
Canada,  and  can  claim  no  priority  except  what 
is  allowed  by  them.  Being  an  ordinary  creditor 
of  a  bank  in  liquidation,  the  Crown  is  not 
entitled  to  priority  of  payment  over  the  other 
ordinary  creditors  of  the  bank.  Exchange  Bank 
of  Canada  v.  Reg.,  11  App.  Cas.  157 ;  55  L.  J., 
P.C.  5;  54  L.  T.  802 -P.  C. 

Prior  to  the  Codes,  the  law  relating  to  pro- 
perty in  the  province  of  Quebec  was,  except  in 
special  cases,  the  French  law,,  which  only  gave 
the  King  priority  in  respect  of  debts  due  from 


"  comptables,"  that  is,  officers  who  received  and 
were  accountable  for  the  King's  revenues.  Art. 
1994  of  the  Civil  Code  must  be  construed 
according  to  the  technical  sense  of  "  compta- 
bles." And  Art.  611  of  the  Civil  Procedure 
Code,  giving  to  the  Crown  priority  for  all  its 
claims,  must  be  modified  so  as  to  be  in  harmony 
therewith.  Accordingly,  by  its  true  construction, 
the  intention  of  the  Legislature  was  that  "in the 
absence  of  any  special  privilege  the  Crown  has  a 
preference  over  unprivileged  chirographic  credi- 
tors  for  sums  due  to  it  by  the  defendant  being  a 
person  accountable  for  its  money."    lb. 

Highways,  what  are.] — By  Canadian  as  by 
Scotch  law  when  a  street  or  road  becomes  a 
public  highway,  the  soil  of  the  road  is  vested  in 
the  Crown  or  other  public  trustee  in  trust  for 
public  use.  De  la  ChevrotHre  v.  Montreal,  12 
App.  Cas.  149 ;  56  L.  J.,  P.  C.  1 ;  56  L.  T.  3- 
P.  C. 

Where  a  road  or  place  in  Montreal  has  been 
registered  as  a  public  place  of  the  city  under  23 
Vict.  c.  72,  s.  10,  sub-s.  6,  and  had  been  enjoyed 
by  the  public  as  a  public  way  more  than  ten 
years  before  registration,  and  more  than  ten 
years  after  registration,  and  before  suit :— Held, 
that  independently  of  the  public  right  by  common 
law  (which  had  been  established  in  the  case)  such 
place  had  become  a  public  highway,  and  a  private 
right  to  resume  possession  thereof  could  not  be 
entertained,    lb. 

Legislature,  Powers  of.]— The  Canadian  Act, 
37  Vict.  c.  103,  which  created  a  corporation 
with  power  to  carry  on  certain  definite  kinds  of 
business  within  the  dominion,  is  within  the  legis- 
lative competence  of  the  Dominion  Parliament 
The  fact  that  the  corporation  chooses  to  confine 
the  exercise  of  its  powers  to  one  province  and  to 
local  and  provincial  objects  does  not  affect  its 
status  as  a  corporation,  or  operate  to  render  its 
original  incorporation  illegal,  as  ultra  vires  of  the 
said  parliament.  Colonial  Building  and  Inter- 
ment Association  v.  Attorney- General  of  Quebec, 
9  App.  Cas.  157  ;  53  L.  J.,  P.  C.  27 ;  49  L.  T. 
789— P.  C. 

Held,  further,  that  the  corporation  could  not 
be  prohibited  generally  from  acting  as  such 
within  the  province  ;  nor  could  it  be  restrained 
from  doing  specified  acts  in  violation  of  the  pro- 
vincial law  upon  a  petition  not  directed  and 
adapted  to  that  purpose.    lb. 

The  Quebec  Act,  45  Vict.  c.  22,  which  imposes 
certain  direct  taxes  on  certain  commercial 
corporations  carrying  on  business  in  the  pro- 
vince, is  intra  vires  of  the  provincial  legislature. 
Bank  of  Toronto  v.  Lam  be,  12  App.  Cas.  575 ; 
56  L.  J.,  P.  C.  87  ;  57  L.  T.  377— P.  C. 

A  tax  imposed  upon  banks  which  carry  on 
business  within  the  province,  varying  in  amount 
with  the  paid-up  capital  and  with  the  number  of 
its  offices,  whether  or  not  their  principal  place  of 
business  is  within  the  province,  is  direct  taxation 
within  clause  2  of  s.  92  of  the  British  North 
America  Act,  1867,  the  meaning  of  which  is  not 
restricted  in  this  respect  by  either  clause  2, 3,  or 
15,  of  s.  91.  Similarly,  with  regard  to  insurance 
companies  taxed  in  a  sum  specified  by  the  Act 
lb. 

Subjects  which  in  one  aspect  and  for  one  pur- 
pose fall  within  s.  92  of  the  British  North 
America  Act,  1867,  may,  in  another  aspect  and 
for  another  purpose,  fall  within  s.  91  : — Held, 


825 


COLONY — Particular  Colonies 


826 


that  the  Liquor  Licence  Act  of  1877,  c.  181, 
Revised  Statutes  of  Ontario,  which,  in  respect  of 
«.  4  and  5,  makes  regulations  in  the  nature  of 
police  or  municipal  regulations  of  a  merely 
local  character  for  the  good  government  of 
trams,  Jfcc.,  does  not,  in  respect  of  those  sections, 
interfere  with  "  the  general  regulation  of  trade 
or  commerce,1'  but  comes  within  Nos.  8,  15  and 
16  of  a.  92  of  the  Act  of  1867,  and  is  within  the 
powers  of  the  provincial  legislature.  Unwell  v. 
Reg.  (7  App.  Gas.  829)  explained  and  approved. 
Hedge  v.  Reg.,  9  App.  Cas.  117  ;  53  L.  J.,  P.  C. 
1 :  50  L.  T.  301— P.  C. 

Held,  further,  that  the  local  legislature  had 
power  by  the  said  Act  of  1867  to  entrust  to  a 
board  of  commissioners  authority  to  enact  regu- 
lations of  the  above  character,  and  thereby  to 
create  offences  and  annex  penalties  thereto.    lb. 

u  Imprisonment,"  in  No.  15  of  s.  92  of  the  Act 
•of  1867,  means  imprisonment  with  or  without 
hard  labour.    lb. 

The  Quebec  Act  (43  &  44  Vict,  a  9),  which 
imposes  a  duty  of  ten  cents  upon  every  exhibit 
filed  in  court  in  any  action  depending  therein, 
b  ultra  vires  of  the  provincial  legislature. 
Attorney- General  for  Quebec  v.  Rend,  10  App. 
Cas.  141  ;  54  L.  J.,  P.  C.  12  ;  52  L.  T.  393  ;  33 
W.  R.  618— P.  C.  See  also  Reg.  v.  Riel,  ante, 
«L323. 

Mortgagor  and  Mortgagee— Notice  —Bight  of 
littrvention.  ] — Where  a  registered  deed  referred 
to  and  by  reference  incorporated  certain  other 
transfers  and  agreements  whereby  it  appeared 
that  the  deed,  though  professedly  one  of  sale, 
was  in  substance  and  reality  the  transfer  to  the 
ostensible  purchaser  of  an  estate  which  had  been 
specifically  allotted  to  him  as  part  of  his  share 
of  the  residue  under  his  father's  will: — Held, 
that  a  mortgagee  from  the  said  purchaser  must 
he  treated  as  having  full  knowledge  that  the 
property  was  by  the  will  greve  de  substitutions 
is  favour  of  the  mortgagor's  wife  and  family, 
his  usufruct  being  not  arrestable  for  his  debts, 
especially  as  the  mortgagee's  agent  was  per- 
sonally cognizant  of  the  transfers  and  agreements 
of  which  the  deed  gave  notice.  Certain  rents 
and  dividends  of  the  said  mortgagor  having  been 
attached  :— Held,  that  under  s.  154  of  the  Civil 
Procedure  Code,  those  who  were  only  entitled 
under  the  will  to  the  corpus  of  the  property 
and  the  shares,  had  no  right  to  intervene  in  a 
proceeding  between  the  mortgagor  and  mort- 
gagee to  declare  such  rents  and  dividends  in- 
**isJasables  daring  the  mortgagor's  life.  Carter 
v.  Molton,  10  App.  Cas.  664— P.  C. 

Hitamhip — Act  of  one  Partner — Liability 
«f ^  Pirn.]— The  Civil  Code  of  Canada  by  s. 
1&5.  provides  that  a  stipulation  that  an  obliga- 
tion is  contracted  for  the  partnership  binds  only 
the  partner  contracting  when  he  acts  without 
the  authority  of  his  co-partners,  unless  the 
partnership  is  benefited  by  his  act.  One  of 
three  partners  lent  money  on  terms  that  the 
borrower,  besides  paying  interest,  should  make 
ever  one-half  his  profits  to  the  firm  to  which  the 
tender  belonged: — Held,  that  this  agreement 
<k4  not  constitute  a  partnership  between  the 
fina  and  the  borrower.  One  partner  has  no 
tathority  from  the  other  partners  to  enter  into  a 
partnership  with  other,  persons  in  another  busi- 
ness. Singleton  v.  Knight,  13  App.  Cas.  788 ;  67 
L  J..P.  C.  106 ;  59  L.  T.  738— P.  C. 


Promissory  Notes — Indorsement  as  Co-sure- 
ties.]— When  the  directors  of  a  company  mutu- 
ally agreed  with  each  other  to  become  sureties  to 
the  bank  for  the  same  debts  of  the  company,  and 
in  pursuance  of  that  agreement  successively  in- 
dorsed three  promissory  notes  of  the  company : — 
Held,  that  they  were  entitled  and  liable  to  con- 
tribution inter  se,  and  were  not  liable  to  in- 
demnify each  other  successively  according  to  the 
priority  of  their  indorsements.  Reynolds  v. 
Wheeler  (10  C.  B.,  N.  S.  561)  approved  ;  Steele 
v.  McKhday  (5  App.  Cas.  754)  distinguished. 
According  to  the  Civil  Code  of  Lower  Canada 
(Arts.  2340  and  2346)  the  law  of  England  in 
force  on  the  30th  May,  1849,  is  applicable  to  this 
question.  Macdonald  v.  Whitfield,  8  App.  Cas. 
733  ;  52  L.  J.,  P.  C.  70  ;  49  L.  T.  446  ;  32  W.  R. 
730— P.  C. 

Railways— Effect  of  Order  of  Eailway  Com- 
mittee.]— An  order  of  the  railway  committee 
under  s.  4  of  the  Dominion  Act,  46  Vict.  c.  24, 
does  not  of  itself,  and  apart  from  the  provisions 
of  law  thereby  made  applicable  to  the  case  of 
land  required  for  the  proper  carrying  out  of 
the  requirements  of  the  railway  committee, 
authorize  or  empower  the  railway  company  on 
whom  the  order  is  made  to  take  any  person's 
land  or  to  interfere  with  any  person's  right. 
Such  provisions  of  law  include  all  the  provisions 
contained  in  the  Consolidated  Railway  Act,  1879, 
under  the  headings  of  "  Plans  and  surveys  "  and 
"  Lands  and  their  valuation,"  which  are  applic- 
able to  the  case ;  the  taking  of  land  and  the 
interference  with  rights  over  land  being  placed 
on  the  same  footing  in  that  Act.  Parkdale 
Corporation  v.  West,  12  App.  Cas.  602  ;  56  L.  J., 
P.  C.  66  ;  57  L.  T.  602— P.  0. 

Where  a  railway  company,  acting  under  an 
order  of  the  railway  committee,  did  not  deposit 
a  plan  or  book  of  reference  relating  to  the  altera- 
tions required  by  such  order : — Held,  that  it  was 
not  entitled  to  commence  operations,  and  further, 
that  under  the  Act  of  1879  the  payment  of  com- 
pensation by  the  railway  company  is  a  condition 
precedent  to  its  right  of  interfering  with  the 
possession  of  land  or  the  rights  of  individuals. 
Jones  v.  Stanstead  Rail.  Co.  (4  L.  R.,  P.  C.  98) 
distinguished.    lb. 


Incorporation— Validity    of    Municipal 


Bye-law.]— Under  Ontario  Act,  34  Vict.  c.  48, 
the  Grand  Junction  Railway  Company  is  recog- 
nised as  an  incorporated  company;  otherwise 
that  it  was  actually  incorporated  by  Act  87  Vict, 
c.  43 ;  the  effect  of  the  two  acts  being  to  give 
to  the  company  so  incorporated  the  benefit  of  a 
bye-law  of  the  respondent  corporation,  which, 
under  certain  conditions,  provided  a  bonus  for 
the  railway.  Under  the  Act  of  1871  the  said 
bye-law  is  legal,  valid,  and  binding  on  the  cor- 
poration, but  the  railway  company  had  not  on 
the  evidence  complied  with  the  conditions  pre- 
cedent. The  stipulated  certificate  of  the  chief 
engineer  had  not  been  produced,  and  although 
under  par.  8  of  the  bye-law  debentures  might  be 
delivered  to  trustees  without  a  certificate,  that 
applied  to  a  time  when  the  debentures  or  their 
proceeds  were  to  be  held  in  suspense,  not  to  a 
time  when  the  trusts  were  spent  and  the  pay- 
ment, if  made  at  all,  should  be  made  direct  to 
the  company.  Grand  Junction  Railway  of 
Canada  v.  Peterborough  (Corporation),  13  App. 
Cas.  136— P.  C. 

M2 


827 


COLONY — Particular  Colonies. 


828 


Liability  of  Bailway  to   Mini*   and  I  sold  free  of  all  charges,  the  customs  authorities 

Bale.]— Section  11  of  Quebec  Act,  43  &  44  Vict.  |  on  the  next  day,  ^^fj^^^^^^f^3^ 
c.  49,  which  provides  that  nothing  in  the  act  "  "  *  ""      ~  ~ 


shall  affect  suits  then  pending,  applies  also  to 
proceedings  in  execution,  and  therefore  the  pro- 
perty of  a  railway  company  governed  by  that 
act  is  not  precluded  thereby  from  being  attached 
in  execution  of  the  respondents'  judgment 
against  the  company.  The  railway  undertaking 
in  suit,  which  had  become  a  Dominion  railway 
before  the  respondents'  writ  of  fi.  fa.  issued, 
and  was  governed  by  Dominion  Act,  46  Vict. 
c.  24,  could  be  seized  and  sold,  subject  to  its 
mortgages,  for  the  debts  of  the  company  to  which 
it  belonged.  Red  field  v.  Wickham  (Corpora- 
tion), 13  App.  Cas.  467  ;  57  L.  J.,  P.  C.  94 ;  58 
L.  T.  455— P.  C. 

Elvers— Riparian  Proprietors — Servitudes.] — 
By  s.  501  of  the  Civil  Code  of  Quebec  the  pro- 
prietor of  the  higher  land  can  do  nothing  to 
aggravate  the  servitude  of  the  lower  land. 
Where  the  plaintiffs,  being  entitled  to  a  flow  of 
water  from  their  land,  executed  certain  works 
which  had  the  effect  of  accumulating  the  volume 
of  water,  and  probably  of  increasing  the  depth 
of  its  channel : — Held,  that  to  the  extent  of 
such  accumulation  and  consequent  increase  of 
flow,  they  had  aggravated  the  servitude  of  the 
lower  land,  and  to  that  extent  had  no  right  to 
demand  a  free  course  for  the  water  sent  down 
by  them.  Having  insisted  on  their  right  to  the 
existing  flow,  and  refused  to  allege  and  prove 
a  case  for  relief  pro  tanto,  their  suit  was  dis- 
missed with  costs.  Frechette  v.  La  Compagnie 
Manufacturi'ere  de  St.  Hyacinthe,  9  App.  Cas. 
170  ;  53  L.  J.,  P.  C.  20  ;  50  L.  T.  62— P.  C. 

Bight  to  Float  Timber— Using  Improve- 
ments without  Compensation.] — The  right  con- 
ferred to  float  timber  and  logs  down  streams 
by  Canadian  statute,  12  Vict.  c.  87,  s.  5,  is  not 
limited  to  such  streams  as  in  their  natural  state, 
without  improvements,  during  freshets,  permit 
said  logs,  timber,  &c,  to  be  floated  down  them, 
but  extends  to  the  user  without  compensation  of 
all  improvements  upon  such  streams,  even  when 
such  streams  have  been  rendered  notable  thereby. 
Such  right  is  only  conferred  by  the  statute 
during  freshets  ;  quaere,  as  to  the  rights  at  other 
seasons  of  the  year  of  the  parties,  that  is,  of  the 
lumberers,  on  the  one  side,  and  the  owners  of  the 
improvements  and  the  bed  of  the  stream  whereon 
they  have  been  effected,  on  the  other.  Caldwell 
v.  McLaren,  9  App.  Cas.  392  ;  53  L.  J.,  P.  C.  33  ; 
51  L.  T.  370— P.  C. 

Shares — Transfer— Liability  of   Transferee.] 

— A  holder  of  shares  "in  trust"  is  not  a 
mandataire  pr&te-nom,  and  holds  subject  to  a 
prior  title  on  the  part  of  some  person  undis- 
closed. Such  holding  not  being  forbidden  by  the 
law  of  the  colony,  a  transferee  from  such  holder 
is  bound  to  inquire  whether  the  transfer  is 
authorised  by  the  nature  of  the  trust.  Bank  of 
Montreal  v.  Sweeny,  12  App.  Cas.  617  ;  56  L.  J., 
P.  C.  79  ;  56  L.  T.  897— P.  C. 

Sheriff's  Sale— Duty  of  Vendor  to  give  Pos- 
session— Bights  of  Purchaser.] — A  sheriffs  sale 
of  a  sugar  factory  with  the  fixed  machinery 


seized  the  whole  machinery  and  refused  to  give 
or  allow  delivery  until  the  whole  export  duties 
chargeable  in  respect  of  the  machinery  were 
paid:— Held,  that  whether  the  claim  of  the 
Crown  was  well  founded  or  not,  the  seizing  and 
detaining  the  machinery  was  in  virtue  of  a 
warrant  ex  facie  regular,  and  effectually  pre- 
vented the  seller  from  giving  possession,  and 
consequently  relieved  the  purchaser  from  his 
obligation  to  pay  the  price.  There  is  nothing 
either  in  the  Civil  or  Procedure  Code  of  Lower 
Canada  which  casts  upon  such  a  purchaser  the 
obligation  to  pay  the  price  and  thereafter  get 
possession  from  a  third  party  as  he  may.  S.  712 
of  the  Procedure  Code  of  Lower  Canada  relates 
to  dispossessing  the  judgment  debtor  only. 
Prfoost  v.  Compagnie  de  Fires  -LiUe,  10 
App.  Cas.  643  ;  54  L.  J.,  P.  C.  30 ;  64  L.  T.  97- 
P.  C. 

Timber  Limits— Warranty  on  Sale— Priority 
of  Licences.]— On  a  sale  of  "  timber  limits,"  held 
under  licences  in  pursuance  of  the  Consolidated 
Statutes  of  Canada,  c.  23,  a  clause  of  simple  war- 
ranty (garantie  de  tons  troubles  generalement 
quelconques)  does  not  operate  to  protect  the  pur- 
chaser against  eviction  by  a  person  claiming  to 
be  entitled  under  a  prior  licence  to  a  portion  of 
the  limits  sold.  Ducondu  v.  Dupuy,  9  App.  Ca& 
150 ;  53  L.  J.,  P.  C.  12  ;  50  L.  T.  129— P.  C. 

Trustees— Right  of  Suit]— Article  19  of  the 
Civil  Code  of  Procedure  is  applicable  to  mere 
agents  or  mandatories.  It  is  not  applicable  to 
trustees  in  whom  the  subject  of  the  trust  has 
been  vested  in  property  and  in  possession  for 
the  benefit  of  third  parties,  and  who  have  duties 
to  perform  in  the  protection  or  realisation  of  the 
trust  estate.  Where  trustees  sold  property  o?er 
which  they  had  possession  and  title :— Held,  that 
they  were  entitled  to  sue  the  purchaser  to  whom 
they  had  delivered  possession,  upon  his  covenant 
to  pay  the  balance  of  the  purchase-money. 
Porteout  v.  Reynar,  13  App.  Cas.  120  ;  57  L.  J-» 
P.  C.  28  ;  67  L.  T.  891— P.  C. 


Will— Construction— Testamentary  Appoint- 
ments—Where a  testator  domiciled  in  Lower 
Canada  bequeathed  a  portion  of  his  residuary 
estate  to  his  executors  upon  trust  to  *'  pay  upon 
the  death  of  his  son,  the  capital  thereof  to  such 
son's  children  in  such  proportion  as  my  said  son 
shall  decide  by  his  last  will  and  testament,  but 
in  default  of  such  decision  then  Bhare  and  share 
alike  as  their  absolute  property  for  evcr"\" 
Held,  that  the  son  had  not  only  the  right  to 
apportion  the  capital  between  all  his  children, 
as  well  those  of  his  then  existing  marriage  as 
those  of  any  future  marriage,  but  also  the  ngnt 
to  dispose  of  the  property  in  favour  of  one  or 
more  of  his  children  to  the  exclusion  of  the 
others.  The  English  doctrine  as  to  illusory  and 
unsubstantial  appointments  under  a  power  is 
not  and  never  was  any  part  of  the  old  French 
law  or  of  the  law  of  Lower  Canada.  An  Bnghsn 
will  by  a  testator  domiciled  in  Lower  Canada 
must  be  interpreted  with  regard  to  the  law  oi 
Lower  Canada,  and  not  that  of  England.  Jȣ 
^  »  DUKD1  x^u^xj  nau  mC  u^  iu»uu...CiJ  tin  v.  Lee  (14  Moore,  P.  C.  142)  explained, 
therein,  as  of  an  immeuble,  having  taken  place  McGibbon  v.  Abbott,  10  App.  Cas.  653  ;  5*  UJ., 
on  the  distinct  footing  that  the  property  was  |  P.  C.  39  ;  54  L.  T.  138— P.  C. 


829 


COLONY — Particular  Colonies. 


330 


3.  Cape  of  Good  Hope. 

aajsiaistration  of  Estates — Liability  of  Asso- 
ciation.]— An  association  for  the  administration 
of  estates  carrying  on  business  under  the  Cape 
of  Good  Hope  Act,  No.  17, 1875,  failed  to  realize 
certain  shares  of  a  testator  within  six  months, 
although  requested  to  do  so  by  beneficiaries. 
Ihe  association  having  power  by  bye-law  to  take 
orer  property  and  to  guarantee  it,  took  over 
certain  securities  of  a  testator  as  absolute  owners 
and  charged  commission,  by  way  of  guarantee, 
on  the  Value  of  such  securities: — Held,  first, 
that  the  association  was  liable  to  make  good 
any  loss  arising   from   failure  to  realize  the 
shares ;  secondly,  that  the  association  could  not 
treat  the  securities  as  its  own ;  thirdly,  that  as 
no  actual  guarantee  was  given  no  commission 
could  be  charged.    Hiddingh  v.  Be  Vttliers,  12 
App.Caa.624;  56  L.  J.,  P.  C.  107  ;  57  L.  T.  885 
-P.C. 

Ink  Motet  in  Circulation  or  Outstanding.] — 
Where  a  bank  consisted  of  a  head  office  and 
aereral  branches,  some  of  which  as  well  as  the 
head  office  issued  notes  : — Held,  that  by  the  true 
construction  of  Act  6  of  1864  a  return  of  notes 
in  circulation  or  outstanding  need  not  include 
bank  notes,  whether  issued  by  the  head  or  branch 
offices,  which  at  the  date  of  such  return  are  in 
pQBKmon  of  any  office  of  the  bank.  Section  9 
■wdy  directs  the  mode  of  making  the  returns. 
It  does  not  enlarge  the  basis  of  returns,  nor 
treat  every  office  of  issue  as,  for  the  purposes  of 
the  act,  a  separate  and  independent  bank. 
Bank  of  Africa  v.  Colonial  Government,  13 
ipp,  Cas.  215  ;  57  L.  J.,  P.  C.  66  ;  58  L.  T.  427 

Oaaproadse-— Heir  subject  to  a  Fidei-Com- 
ausraaL] — Where  testator's  daughter,  on  attain- 
ing the  age  of  twenty-five,  took  the  residue  of 
his  estate  burdened  with  a  conditional  fidei-com- 
wanm,  there  being  no  bequest  to  the  executors, 
who  were  only  appointed  administrators,  the  will 
sot  debarring  the  daughter  from  the  inheritance 
as  heir  by  birth,  and  at  twenty-five  as  heir 
hardened  with  a  fidei-commissum,  and  the 
daughter  entered  into  an  agreement  of  com- 
promise with  the  executors  of  all  her  claims 
arising  out  of  their  administration  of  the  testa- 
tor's estate,  which  compromise  did  not  involve 
a&y  alienation  of  property : — Held,  in  a  suit  by 
her  infant  children  for  substantially  the  same 
relief  as  had  been  the  subject  of  the  said  com- 
promise, that  they  were  bound  thereby.  The 
daughter,  under  the  law  of  the  Gape  of  Good 
Hope,  fully  represented  the  estate,  and  her 
children  had  the  same  interest  as  herself.  Be 
Mntfort  v.  Broers,  13  App.  Cas.  149  ;  57  L.  J., 
*.  a  47 ;  58  L.  T.  198— P.  C. 

Ittwos— Disability— Remarriage  in  England.] 
—A  and  B.  were  married  in  Ireland,  the 
donicil  of  origin  of  each  of  them  being  Irish.  A. 
afterwards  abandoned  his  Irish  domicil,  and  for 
•weal  years  lived  with  his  wife  at  various  places 
in  the  Cape  Colony  and  Natal,  where  he  engaged 
ia  various  business  enterprises,  occasionally 
stating  short  visits  to  England.  He  subse- 
quently went  to  Australia  with  the  intention 
of  settling  there,  but  soon  after  his  arrival 
tkere  he  entered  into  an  agreement  with  8.  to 
ony  on  the  business  of  ostrich-farming  in 


the  Cape  Colony  in  partnership  for  life.  A.,  B., 
and  S.  then  went  together  to  Natal,  where  B. 
left  her  husband  and  went  with  S.  to  Cape 
Colony,  where  they  lived  together  as  man  and 
wife.  A.  afterwards  obtained  in  the  court  of 
the  Eastern  District  of  the  Cape  of  Good  Hope 
a  decree  dissolving  his  marriage  on  the  ground 
of  his  wife's  adultery  with  S. ;  S.  and  B.  were 
married  in  the  Cape  Colony,  and  they  shortly 
afterwards  returned  to  England,  where  they 
intended  to  remain,  and  they  were  again  married 
at  a  registrar's  office  in  London.  A.  was 
believed  to  be  still  in  South  Africa,  but  there 
was  no  evidence  as  to  whether  he  was  still  un- 
married. By  the  Roman-Dutch  law,  which  pre- 
vails in  the  Cape  Colony  and  Natal,  parties  who 
have  been  guilty  of  adultery  are  incapable  of 
contracting  a  valid  marriage  unless  the  injured 
party  has  married  again,  but  a  decree  of  divorce 
is  an  absolute  dissolution  of  the  marriage,  and 
the  Colonial  Courts  have  no  power  to  dissolve  a 
marriage  between  parties  who  are  not  domiciled 
within  their  jurisdiction  : — Held,  that  B.'s  disa- 
bility to  contract  a  valid  marriage  so  long  as  A. 
remained  unmarried,  ceased  when  she  left  the 
Cape  Colony,  and  that  therefore  her  marriage 
with  S.  in  England  was  valid.  Scott  v.  Attorney- 
General,  11  P.  D.  128  ;  55  L.  J.,  P.  57  ;  56  L.  T. 
924  ;  50  J.  P.  824— Hannen,  P. 

Encroachment — Eemedy — Jurisdiction.]  — In 
an  action  brought  by  the  appellant  corporation 
under  ss.  60  and  64  of  the  Municipal  Corpora- 
tions Act,  1872,  to  compel  the  respondent 
company  to  remove  portions  of  certain  buildings 
which  by  virtue  of  a  survey  authorised  by  a 

Srivate  act  relating  to  the  corporation  and 
ated  the  3rd  of  August,  1866,  must  be  deemed 
an  encroachment  on  the  street : — Held,  that  the 
right  of  resort  to  the  ordinary  Courts  of  Justice 
was  according  to  the  manifest  intention  of  the 
law  of  1866,  excluded  in  reference  to  all  ques- 
tions resulting  from  such  survey  being  made 
binding  and  conclusive.  All  such  questions 
must  by  the  terms  of  the  private  act  be  referred 
to  a  Court  of  Arbitration  established  thereby. 
The  act,  however,  did  not  apply  to  future 
encroachments,  nor  to  encroachments  already 
existing  independently  of  such  survey,  on  the  face 
lines  of  streets  as  laid  down  by  the  corporation 
under  an  earlier  Act  of  1862.  Fietermaritzburg 
(Mayor)  v.  Natal  Land,  Company,  13  App.  Cas. 
478 ;  57  L.  J.,  P.  C.  82  ;  58  L.  T.  895— P.  C. 

Executor,  Purchase  by.] — The  law  of  Natal 
as  to  purchases  by  persons  in  a  fiduciary  position 
does  not  differ  from  the  law  of  England.  Bening- 
field  v.  Baxter,  12  App.  Cas.  167  ;  56  L.  J., 
P.  C.  13  ;  56  L.  T.  127— P.  C. 

Prescription— Bights  of  Owner  of  Springs.] — 

The  respondent's  predecessor  in  title,  in  1820 
constructed  a  watercourse  on  Crown  lands, 
by  means  of  which  he  diverted  the  water  of 
two  springs  which  rose  thereon,  so  that  they 
mingled  with  the  waters  of  a  private  stream 
admittedly  belonging  to  the  farm,  of  which  the 
respondent  owned  a  portion.  He  did  so  with 
the  licence  of  those  who  acted  as  agents  for  the 
Government,  in  order  to  have  the  permanent 
use  of  the  water  for  his  farm,  and  continued  his 
user  for  the  period  of  prescription,  after  which 
the  respondent  applied  for  and  obtained  from 
the  Colonial   Government  a   renewal   of  the 


881 


COLONY — Particular  Colonies. 


832 


licence  originally  granted  to  his  predecessor  : — 
Held,  that  the  user  of  the  diverted  water  by  the 
respondent's  predecessor  was  not  precarious,  and 
that  the  act  of  the  respondent  had  not  deprived 
him  of  the  prescriptive  right  acquired  by  his 
predecessor  so  as  to  enable  the  Crown  to  give  to 
the  plaintiffs  in  1881  a  title  to  the  said  water. 
It  is  very  doubtful  whether,  by  Dutch-Roman 
law,  the  owner  of  the  sources  of  streams  has 
exclusive  dominion  over  their  waters.  They  are 
at  least  subject  to  rights  of  user  acquired  by 
prescription,  and  probably  also  to  the  rights 
which  English  law  recognises  in  riparian  pro- 
prietors to  water  flowing  in  a  known  or  definite 
channel.  Miner  v.  Oilman  r  (12  Moore's  Ind. 
App.  Cas.  381)  ;  and  Van  Breda  v.  Silberbauer 
(3  L.  B.,  P.  C.  84)  approved.  French  Hock 
Commissioners  v.  Evgo.  10  App.  Cas.  336  ;  54 
L.  J.,  P.  C.  17  ;  54  L.  T.  92  ;  34  W.  R.  18— P.  C. 

Sale  of  Shares — Unreasonable  Delay  in  Deli- 
very.]— Where  a  contract  for  the  sale  of  shares 
did  not  fix  the  time  for  the  delivery  of  them  : — 
Held,  that  the  time  for  delivery  could  not 
depend  upon  circumstances  which  were  unknown 
to  the  buyer,  and  that  delay  in  tendering  the 
shares  arising  from  the  seller  having  sent  his 
certificate  to  England  for  sub-division,  as  this 
circumstance  was  unknown  to  the  buyer,  was 
unreasonable  and  justified  the  buyer  in  refusing 
to  accept  the  shares.  Such  delay  was  mora, 
assuming  the  law  of  mora  to  be  applicable.  De 
Waul  v.  Adler,  12  App.  Cas.  141  ;  66  L.  J., 
P.  C.  25— P.  C. 

Surety— Bond  by  a  Woman.]— By  the  law  which 
prevails  in  Natal  a  woman  cannot  be  effectually 
bound  as  a  surety,  unless  she  specially  renounces 
the  privileges  secured  to  her  by  the  Senatus 
Consultum  Villeianum  and  other  rules  of  law. 
Where  a  husband  under  a  general  power  of 
attorney  from  his  wife  professed  to  bind  her 
personally  as  surety  under  a  mortgage  bond 
duly  executed : — Held,  that,  there  being  no 
authority  to"  renounce  as  aforesaid,  express  or 
implied,  given  by  the  power  of  attorney,  such 
deed  was  void.  Machellar  v.  Bond,  9  App.  Cas. 
715  ;  53  L.  J.,  P.  C.  97  ;  51  L.  T.  479— P.  C. 

Will — Codicil  —  Devise — Construction.]  —  A 

testator  and  testatrix  who  had  been  married  in 
community  of  property  devised  by  codicil  cer- 
tain real  estate  to  their  two  sons,  with  provisoes, 
tirst,  in  restraint  of  alienation  ;  second,  "the 
eldest  son  among  our  grandchildren  shall  always 
have  the  same  right  thereto,  and  after  the  de- 
cease of  their  parents  remain  in  possession 
thereof,  with  this  understanding,  however,  that 
the  other  heirs  who  may  still  be  born  shall  enjoy 
equal  share  and  right  thereto  ...  to  be  for  the 
convenience  and  benefit  of  our  two  children  and 
grandchildren,  so  that  always  the  eldest  son  of 
the  grandchildren  has  the  privilege  ....  and 
the  grandchildren  can  in  our  opinion  earn  their 
living  thereon."  No  other  son  was  born,  the 
younger  entered  into  possession  of  half  thepro- 
perty  and  died,  leaving  ten  children: — Held, 
that  the  respondent,  who  was  the  eldest  of  these 
ten  children,  was  entitled  to  the  whole  of  his 
father's  moiety.  Quaere,  as  to  the  true  construc- 
tion of  the  codicil  if  there  were  any  attempt  to 
create  a  perpetuity  or  entail.  Be  Jager  v.  Be 
Jager,  11  App.  Cas.  411  ;  55  L.  J.,  P.  C.  22  ;  54 
L.  T.  806— P.  C. 


Testamentary  Power— Husband  and  Wife.] 

— The  clearly  expressed  intention  of  Natal  Ordi- 
nance No.  1  of  1856  was  to  give  to  any  subject 
of  the  Queen  resident  in  Natal  the  power  of  dis- 
posing by  will,  according  to  English  law  of  pro- 
perty both  real  and  personal,  which  otherwise 
would  devolve  according  to  Natal  law.  Sect  1 
was  operative  for  that  purpose,  except  that  it 
concluded  with  the  provision  "  as  if  such  sub- 
ject resided  in  England,"  the  effect  of  which  is 
to  leave  both  the  lex  situs  and  the  lex  domicilii 
in  operation,  thus  reducing  the  section  to  a  nul- 
lity : — Held,  that  these  words  ought  not  to  be  so 
construed  as  to  destroy  all  that  has  gone  before, 
and  therefore  should  be  treated  as  immaterial, 
the  powers  conferred  not  being  affected  by  the 
question  of  residence  in  England.  Salmon  v. 
buncombe,  11  App.  Cas.  627  ;  55  L.  J.,  P.  C.  69; 
55  L.  T.  446— P.  C. 


4.  Ceylon. 

Bight  to  sue  Crown — Set-oft] — There  is  no 
authority  for  saying  that  the  Boman-Dutch  law 
of  Holland,  which  was  in  force  in  Ceylon  at  the 
date  of  its  conquest  by  the  British,  and  has  not 
since  been  abrogated,  empowered  the  subject  to 
sue  the  government.  But  since  the  conquest  a 
very  extensive  practice  of  suing  the  Crown  has 
sprung  up  and  has  been  recognized  by  the  legis- 
lature. See  the  117th  section  of  Ordinance  No. 
11  of  1868,  which  re-enacted  an  Ordinance  of 
1856  : — Held,  therefore,  that  such  suits  are  now 
incorporated  into  the  law  of  the  land.  Held, 
further,  that  where  the  Crown  is  plaintiff  and 
the  defendants  sue  in  reconvention,  the  court  is 
not  bound  to  give  separate  judgments,  but  may 
set  off  the  amount  awarded  to  the  defendants 
against  that  awarded  to  the  Crown,  and  giro 
judgment  for  the  balance.  Uettihewagc  T. 
Queen's  Advocate,  9  App.  Cas.  571 ;  53  L.  J., 
P.  C.  72  ;  51  L.  T.  401— P.  C. 


5.  China  Settlements. 

Land^and  Municipal  Regulations — Bights  of 
Ben  ten!] — According  to  the  true  construction 
of  Art.  5  of  the  Regulations  of  1854  (1)  the  pub- 
lic uses  to  which  beach  grounds  of  the  riven  are 
thereby  dedicated  are  the  uses  to  which  such 
grounds  in  the  district  are  ordinarily  held  sub- 
ject ;  (2)  such  dedication  does  not  deprive  the 
renter  of  his  property  in  the  grounds,  bat  obliges 
him  to  respect  the  uses ;  (3)  every  renter  takes 
with  the  condition,  express  or  implied,  that  his 
holding  is  subject  to  such  uses  ;  (4)  jurisdiction 
is  conferred  to  prevent  anything  (e.g.,  building 
thereon)  being  done  inconsistent  with  or  de- 
structive to  the  rights  of  the  public  having  uses 
on  the  beach  ground.  Ince  v.  Thorburn,  11 
App.  Cas.  180 ;  55  L.  J„  P.  C.  19  ;  54  L.  T.  W9 
—P.  C. 

6.  Jeesby. 

Foreign  Judgment — Debtors'  Trustees  joined 
as  Co-defendants — Interest] — A  judgment  credi- 
tor, suing  in  Jersey  to  enforce  a  judgment  of  an 
English  court,  joined  as  co-defendants  the  attor- 
ney of  his  judgment  debtor,  and  the  attorney  of 
the  trustees  of  the  debtor's  property : — Held, 
that  the  Jersey  court  was  wrong  in  decreeing 
payment  personally  against  the  trustees.    The 


833 


COLONY — Particular  Colonies. 


834 


foreign  judgment  being  no  more  than  evidence 
of  s  debt,  it  was  incompetent  for  the  plaintiff 
to  sue  other  persons  jointly  with  the  debtor,  on 
the  allegation  that  they  held  as  trustees  pro- 
perty of  which  the  debtor  was  beneficial  owner. 
Hawhf&rd  v.  Giffard,  12  App.  Cas.  122;  56 
L  J.,  P.  C.  10 ;  56  L.  T.  32— P.  C. 

As  regards  interest  on  the  English  judgment 
ft  should  not  be  altered  by  the  Jersey  court 
except  from  the  date  of  the  Jersey  judgment  ; 
the  costs,  moreover,  occasioned  by  joining  the 
trustees  should  not  be  given.    lb.  \ 

Bight  of  Way— Creation  of  Title— Dedication 
followed  by  User.] — By  the  law  of  Jersey  a 
public  right  of  way  in  the  nature  of  an  easement 
orer  the  soil  of  another  cannot  be  created  by  a 
mere  dedication  by  the  owner  of  the  fee  simple 
at  any  time  followed  by  user  of  the  way  so  dedi- 
cated:— Quaere,  whether  an  easement  or  servitude 
can  be  created  by  any  enjoyment,  even  from 
time  immemorial,  without  proof  of  title ;  and 
whether  forty  years'  possession  by  a  parish  of  a 
way  as  a  public  way  accompanied  by  acts  of 
ownership  would  prove  title  in  the  parish  to 
either  the  soil  or  the  servitude.  Be  Carteret  v. 
BaMdains,  11  App.  Gas.  214  ;  55  L.  J.,  P.  C.  33 
-P.C. 

Set-off] — According  to  the  law  of  Jersey  a 
claim  by  way  of  compensation  or  set-off  is 
admissible,  when  it  is  for  a  liquid  demand. 
Koch  claims  having  been  dismissed  by  the  court 
below  the  case  was  remanded  to  ascertain  whether 
they  were  in  whole  or  in  part  liquid  debts  or 
debts  u  moon  testers  ou  du  moins  incontestables  " 
at  alleged  by  the  appellants.  Dyson  v.  Qodfray, 
9  App.  Cas.  726 ;  53  L.  J.,  P.  C.  94 ;  51  L.  T. 
580-P.C. 

7.  Malta. 

Legitimation — Children  ex  nefario  eoitn  — 
Itrislietion.]— By  Justinian's  Novel  89  legiti- 
mation per  rescriptum  principis  was  introduced. 
Children  ex  nefario  coitu  though  thereby  de- 
clared incapable,  were  occasionally  legitimated 
by  an  exercise  of  imperial  grace.  By  the  later 
civil  law  children  of  parents  free  to  marry  at 
the  time  of  their  conception  and  birth  could  be 
legitimated  as  a  matter  of  right ;  children  ex 
nefario  coitu  only  at  the  discretion  of  the  ruling 
power,  and  subject  to  its  conditions.  In  Malta 
ance  it  became  a  British  possession  the  power  of 
legitimation  was  exercised  by  the  governor  until 
by  an  Ordinance  of  the  25th  May,  1814,  it 
pjwed  to  the  Third  Hall  of  the  Civil  Court  :— 
Held,  that  the  law  of  Malta  as  to  legitimation  is 
to  be  found  in  the  Code  Rohan  and  Maltese 
precedents ;  and  only  where  its  provisions  fail, 
in  the  civil  law  : — Held,  further,  that  by  the 
Code  and  precedents  the  respondent  natus  ex 
nxorato  et  6oluta,  and  therefore  ex  nefario  coitu, 
had  been  iduly  legitimated  by  a  decree  of  the 
Third  Hall,  and  thereby  acquired  the  character 
and  rights  of  a  child  legitimus  et  naturalis  bo  far 
at  permitted  by  municipal  law ;  entitling  him 
to  take  under  limitations  in  favour  of  legitimate 
and  natural  children  unless  a  plain  intention 
*«s  expressed  to  the  contrary.  Oera  v.  Ciantar, 
12  App.  Cas.  557  ;  56  L.  J.,  P.  C.  93  ;  57  L.  T. 
818-Kc 

Under  the  Ordinance  of  1814  the  court  has 
jurisdiction  in  the  case  of  every  petition  for 


legitimation  which,  according  to  previous  prac- 
tice, would  have  been  referred  by  the  governor 
to  a  judge  for  inquiry  and  report.  ItB  exercise 
should  be  governed  by  considerations  derived 
from  the  state  of  the  parent's  family,  and  the 
interests  of  the  child ;  other  persons  whose  in- 
terests may  be  affected  need  not  be  cited,  and 
the  court  has  no  power  to  attach  conditions  for 
their  protection,    lb. 

Primogenitura — Descent  in  exclusively  Male 
line  derived  from  a  Female.]  —  Where  the 
founders  of  a  Maltese  primogenitura  limited  the 
succession  by  a  deed  of  settlement  in  1695  to 
the  eldest  and  other  sons  of  F.,  the  original 
donee,  and  their  respective  male  lines ;  then  on 
failure  of  all  those  lines  to  his  female  issue  and 
their  respective  descendants  after  them  in  a 
prescribed  order,  derived  from  repeated  indica- 
tions in  the  deed  that  the  line  of  descent 
was  to  be  exclusively  male  though  traced  from 
a  female  head  of  line ;  and,  lastly,  on  failure  of 
all  his  male  and  female  issue,  to  the  younger 
brothers  of  the  original  donee  and  their 
respective  issue;  and  it  appeared  that  the 
original  donee  had  daughters  only  : — Held,  that 
according  to  the  true  construction  of  such  pre- 
scribed order  of  succession,  notwithstanding  the 
general  presumption  of  Maltese  law  in  favour 
of  the  "regular"  course  of  succession,  which 
admits  females  descended  from  the  last  holder 
in  preference  to  all  collaterals,  the  succession 
from  females  was  effectively  declared  to  be  in 
lines  of  "  artificial  agnation,"  that  is  the  male 
line  of  descendants  from  a  female  ancestress 
through  males  were  intended  to  take  exclusively 
of  females  till  that  male  line  was  exhausted  ; 
and  consequently  that  the  respondent,  the  half- 
brother  of  the  last  holder,  succeeded  in  pre- 
ference to  the  daughter.  B'Amico  v.  Trig  ana, 
13  App.  Cas.  806  ;  58  L.  J.,  P.  C.  20— P.  C. 

Descent  of  Barony  established  as  Hereditary 
FendJ — F.  also  held  a  barony  (established  under 
the  Frank  Princes  in  Naples  and  Sicily  as  a 
hereditary  feud,  alienable  with  the  Boyal 
assent),  under  a  settlement  of  1674,  which 
limited  the  same  to  his  descendants  gene- 
rally. By  his  will  he  purported  to  annex 
the  same  to  his  said  primogenitura,  thereby 
purporting  to  impress  upon  it  the  character 
of  a  majorat  descendible  to  males  to  the 
exclusion  of  females : — Held,  that  assuming 
that  a  former  settlement  of  the  barony  in  1613 
did  not  establish  the  succession  unalterably  in 
favour  of  the  "regular"  lineal  descent,  F. 
could  so  annex  it  to  the  extent  permitted  by 
the  Pragmatic  of  Philip  IV.,  No.  34.  Case 
remitted  to  the  court  below  to  investigate 
whether  the  succession  to  the  barony  was  still 
prescribed  by  the  settlement  of  1613,  notwith- 
standing the  settlement  of  1674,  and,  if  not, 
within  what  limits  the  will  of  F.  was  operative 
in  regard  thereto  according  to  the  natural  con- 
struction of  the  Pragmatic ;  unless  there  be 
any  settled  usage  or  interpretation  thereof  at 
variance  with  its  natural  construction  and  so 
entitled  to  prevail.    lb. 

Trade  Mark— Bight  to  exclusive  User.] — In 
Malta  there  is  no  law  or  statute  establishing  the 
registration  of  trade-marks,  and  no  authority 
exists  from  which  an  exclusive  right  to  a  par- 
ticular trade-mark  can  be  obtained.    But  by  the 


385 


COLONY — Particular  Colonies. 


336 


general  principles  of  the  commercial  law,  as  soon 
as  a  trade-mark  has  been  so  employed  in  the 
market  as  to  indicate  to  purchasers  that  the 
goods  to  which  it  is  attached  are  the  manufacture 
of  a  particular  firm,  it  becomes  to  that  extent 
the  property  of  the  firm.  Somerville  v.  Sehembri, 
12  App.  Cas.  453 ;  56  L.  J.,  P.  C.  61 ;  56  L.  T. 
454— P.  C. 

Where  cigarettes  made  by  the  appellant's  firm 
became  favourably  known  under  the  trade-mark 
"Kaisar-i-Hind"  :— Held,  that  the  use  of  that 
trade-mark  by  others  for  hats,  soap,  pickles,  &c., 
could  not  impede  the  acquisition  of  an  exclusive 
right  to  it  as  a  trade-mark  for  cigarettes  ;  that 
the  respondents  should  be  restrained  from 
using  for  cigarettes  a  copy  of  the  said  mark  with 
colourable  variations,  such  copy  being  likely, 
even  if  not  intended,  to  deceive  purchasers  into 
the  belief  that  such  cigarettes  were  manufactured 
by  the  appellant's  firm.    lb. 


8.  Maubittus. 

Validity  of  Adjudication  of  Bankruptcy.]— The 
Court  of  Bankruptcy  of  the  Mauritius  has  juris- 
diction to  order  adjudication  against  a  firm  on 
the  petition  of  the  sole  member  of  that  firm. 
Such  order  is  valid  against  the  petitioner  per- 
sonally. Under  ss.  40,  43,  and  50  of  Ordinance 
No.  33  of  1853,  a  creditor  cannot  challenge  the 
validity  of  such  order  on  the  ground  that  the 
bankrupt  has  not  made  it  appear  to  the  satisfac- 
tion of  the  court  that  his  estate  is  sufficient  to 
pay  his  creditors  at  least  five  shillings  in  the 
pound  clear  of  all  bankruptcy  charges.  Such 
qualified  solvency  is  not  a  fact  to  be  put  in  issue 
and  proved,  but  provisionally  to  appear  to  the 
satisfaction  of  the  court,  the  propriety  of  whose 
conclusion  cannot  by  any  process  be  contested. 
Oriental  Bank  Corporation  v.  Richer,  9  App.  Cas. 
413  ;  63  L.  J.,  P.  0.  62  ;  51  L.  T.  273— P.  C. 


9.  Newfoundland. 

Contract — Apportionment  —  Counterclaim  for 
Unliquidated  Damages  —  Set-off  against  As- 
signees.]—By  contract  in  1881  embodied  in  a 
statute  the  plaintiff  company  covenanted  to 
complete  a  railway  in  five  years,  and  thereafter 
to  maintain  and  continuously  operate  the  same. 
In  consideration  thereof  the  government  cove- 
nanted :  (a)  to  pay  the  company  upon  the  con- 
struction and  continuous  operation  of  the  line  an 
annual  subsidy  for  thirty-five  years,  such  subsidy 
'*  to  attach  in  proportionate  parts  and  form  part 
of  the  assets  of  the  company  as  and  when  each 
five-mile  section  is  completed  and  operated ; " 
(b)  to  grant  to  the  company  in  fee  simple  5,000 
acres  of  land  for  each  one  mile  of  railway  com- 
pleted, on  completion  of  each  section  of  five 
miles.  It  appeared  that  the  company  completed 
a  portion  of  the  line,  and  received  from  the 
government  on  the  completion  of  each  five-mile 
section  the  specified  grant  of  land,  and  certain 
half-yearly  payments  in  respect  of  the  propor- 
tionate part  of  the  subsidy  which  was  deemed  by 
the  parties  to  attach  thereto;  thereafter  the 
contract  was  broken  by  the  company,  and  the 
government  refused  further  payments.  In  a 
suit  by  the  company  and  its  assignees  of  a 
division  of  the  railway  and  of  the  rights  relating 
thereto : — Held  (1),  that  on  the  true  construction 


of  the  contract  (a)  each  claim  to  a  grant  of  land 
was  complete  from  the  time  when  the  section 
which  had  earned  it  was  complete ;  (b)  on  the 
completion  of  each  section  a  proportionate  part 
of  the  subsidy  became  payable  for  the  specified 
term,  but  subject  to  the  condition  of  continuous 
efficient  operation  ;  (2),  that  by  the  law  of  the 
colony  the  government  were  entitled  to  set  off  a 
counterclaim  for  unliquidated  damages  for  the 
company's  breach  of  contract  in  not  completing 
the  line ;  (3),  that  the  set-off  availed  against  the 
assignees  of  the  company,  the  claim  and  counter- 
claim having  their  origin  in  the  same  portion  of 
the  same  contract,  the  obligations  which  gave 
rise  to  them  being  closely  intertwined.  Tamna 
v.  KUohin  (3  Ex.  D.  127),  approved.  Newfound- 
land Government  v.  Newfoundland  Railway,  13 
App.  Cas.  199  ;  67  L.  J.,  P.  C.  35  ;  58  L.  T.  285 
— P.  C. 

10.  New  Zealand. 

Compensation — "  Estate  or  Interest  in  land.*1] 
— Land  having  become  vested  in  the  respon- 
dents under  the  Wellington  Harbour  Board  and 
Corporation  Land  Act,  1880,  the  appellants 
claimed  compensation  under  the  Public  Works 
Act,  1882,  on  the  ground  of  their  having  some 
estate  or  interest  therein  within  the  meaning  of 
the  latter  act.  It  appeared  that  the  appellants' 
lessor  (or  his  predecessor  in  title)  had  in  1848 
erected  a  wharf  on  the  said  land,  with  the  per- 
mission of  the  government,  and  in  1856  a  jetty ; 
that  in  1856,  at  the  request  and  for  the  benefit 
of  the  government,  he  incurred  large  expendi- 
ture for  the  extension  of  his  jetty  and  for  tie 
erection  of  a  warehouse  ;  that  in  subsequent 
years  the  government  used,  paid  for,  and  with 
the  consent  of  the  said  lessor,  improved  the  said 
land  and  works  : — Held,  that  the  lessor  must  be 
deemed  to  have  occupied  the  ground  from  1848 
under  a  revocable  licence  to  use  it  for  the  pur- 
poses of  a  wharfinger ;  that  by  virtue  of  the 
transactions  of  1856  such  licence  ceased  to  be 
revocable  at  the  will  of  the  government  whereby 
the  lessor  acquired  an  indefinite,  that  is,  prac- 
tically, a  perpetual,  right  to  the  jetty  for  the 
purposes  aforesaid.  The  equitable  right  so  ac- 
quired is  an  "  estate  or  interest  in,  to,  or  out  of 
land  "  within  the  wide  meaning  of  the  Act  of 
1882,  which  directs  that  in  ascertaining  title  to 
compensation  the  court  should  not  be  bound  to 
regard  strict  legal  rights  only,  but  should  do  what 
is  reasonable  and  just.  Plimtnerv.  Wellington 
(Mayor),  9  App.  Cas.  699  ;  63  L.  J.,  P.  C.  104 ; 
51  L.  T.  475  ;  49  J.  P.  116— P.  C. 

Executive  Government— Liability  for  Wegli- 
gence— Seasonable  Care.] — Where  the  executive 
government  possessed  the  control  and  manage- 
ment of  a  tidal  harbour,  with  authority  to  remove 
obstructions  in  it,  and  the  public  had  a  right  to 
navigate  therein,  subject  to  the  harbour  regu- 
lations and  without  payment  of  harbour  dues ; 
the  staiths  and  wharves  belonging  to  the  execu- 
tive government  which  received  wharfage  and 
tonnage  dues  in  respect  of  vessels  using  them : — 
Held,  that  there  was  a  duty  imposed  by  law  upon 
the  executive  government  to  take  reasonable  care 
that  vessels  using  the  staiths  in  the  ordinary 
manner  may  do  so  without  damage  to  the  vessel 
Reasonable  care  is  not  shown  when,  after  notice 
of  danger  at  a  particular  spot,  no  inquiry  is 
made  as  to  its  existence  and  extent,  and  no 


387 


COLONY — Appeals  to  the  Privy  Council 


338 


wiming  is  given.   Reg,  v.  Williams,  9  App.  Cos.  I 
418 ;  53  L.  J.,  P.  C.  64  ;  61  L.  T.  546— P.  C. 

The  principle  of  liability  for  negligence  estab- 
lished by  Parnaby  v.  Lancaster  Canal  Company 
(11  Ad.  &  E.  223),  and  Mersey  Docks  Trustees  v. 
GObt  (1  L.  R.,  H.  L.  93),  approved  of,  and 
applied  to  the  executive  government  in  the  above 
ciraunstanoes,  which  were  distinguishable  in 
respect  of  non-receipt  of  harbour  dues,  notwith- 
standing the  Crown  Suits  Act,  1881,  s.  37.    lb. 


11.    Straits  Settlements. 

Crown  Suite— Tort]— The  Crown  Suits  Ordi- 
nance, 1876,  s.  18,  snb-s.  ii.,  provides  that  "  any 
claim  against  the  Crown  for  damages  or  com- 
pensation arising  in  the  Colony  shall  be  a  claim 
cognisable  under  the  Ordinance  "  :— Held,  that 
the  expression  M  claim"  includes  claims  arising 
oot  of  tort.  Attorney-  General  of  Straits  Settle- 
meats  v.  Wemyss,  13  App.  Can.  192  :  57  L.  J.,  P. 
C.  62 ;  68  L.  T.  368— P.  C. 


and  Lessee  Covenant  for  Eenewal — 
testation  from  Grant.]— A  lessee  of  land  with 
covenant  for  renewal  obtained  a  renewal  of  the 
lease.  The  new  lease  did  not  contain  the  whole 
of  the  land  demised  by  the  former  lease.  Prior 
to  renewal  the  lessor  had  given  the  Government 
a  licence  to  execute  certain  work  by  which  the 
land  demised  was  injuriously  affected  : — Held, 
that  the  new  lease  was  a  fulfilment  of  the 
covenant  for  renewal,  though  the  subject-matter 
was  not  identical,  and  that  the  right  of  the 
leasee  to  compensation  was  not  affected  by  the 
licence  given  by  the  lessor.    lb. 

12.  Texntdad. 

Mil  of  tale  of  Growing  Crops — Begistration.] 
—A  bill  of  sale  of  crops  actually  growing  at  the 
date  of  execution  is  void  for  want  of  registration 
under  Trindad  Ordinance,  No.  15  of  1884.  The 
words  in  s.  10  "  nothing  contained  in  this  Ordi- 
nance" mean  *4  nothing  contained  in  the  two 
next  preceding  sections  of  this  Ordinance." 
Tnmant  v.  Uowatson,  13  App.  Cas.  489 ;  57 
I*  J.,  P.  C.  110  ;  58  L.  T.  646— P.  C. 

Stains  of  Children  born  before  Marriage — 
low  of  Inheritance*] — According  to  the  Spanish 
laws  originally  in  force  in  Trinidad,  children 
horn  before  marriage  (contracted  before  the  12th 
of  March,  1846),  have  the  same  rights  of  inherit- 
ance from  their  father  and  mother  as  children 
horn  after  marriage.  Section  13  of  Ordinance 
Ha  24  of  1846,  while  preventing  marriage  after 
that  date  from  legitimating  the  ante-nati  chil- 
dren, does  not  take  away  the  status  of  legitimacy 
previously  acquired.  Where  a  mother  married 
before  that  date,  died  intestate  in  1862,  leaving 
seven  children,  three  of  whom  were  ante-nati  and 
four  post-nati,  held,  that  each  by  inheritance 
took  one-seventh  of  the  estate  which  she  had 
acquired  by  purchase  under  s.  5  of  No.  24  of 
1845 : — Held,  with  regard  to  the  shares  of  two 
ante-nati  who  had  died  thereafter  intestate 
without  issue,  that  under  s.  5  above  cited  and 
a.  7  of  No.  7  of  1858,  they  were  divisible  equally 
amongst  the  four  surviving  children  whether 
ante-nati  or  post-nati,  and  the  issue  of  a  deceased 
daughter.  Escallier  v.  Escallier,  10  App.  Cas. 
112;  54  L.  J.,  P.  C.  1 ;  53  L.  T.  884— P.  C. 


II.  APPEALS  TO  THE  PRIVY  COUNCIL. 

Criminal  Proceedings— Order  striking  off  the 
Soil  reversed.] — In  an  appeal  by  a  barrister  and 
solicitor  against  a  verdict  convicting  him  of  per- 
jury, and  against  a  consequential  order  of  court 
directing  him  to  be  struck  off  the  roll  of  prac- 
titioners :  —  Held,  that  the  conviction  having 
been  obtained  by  directions  of  the  judge,  which 
were  improper  and  grievously  unjust  to  the  appel- 
lant, could  not  be  allowed  to  stand,  and  that  the 
consequential  order  must  be  reversed.  Billet  t, 
In  re,  12  App.  Cas.  459  ;  56  L.  T.  616  ;  36  W.  B. 
81 ;  16  Cox,  0.  C.  241— P.  C. 

Her  Majesty  will  not  review  criminal  proceed- 
ings unless  it  be  shown  that  by  a  disregard  of 
the  forms  of  legal  process,  or  by  some  violation 
of  the  principles  of  natural  justice,  or  otherwise, 
substantial  and  grave  injustice  has  been  done. 
Falkland  Islands  Company  v.  Reg.  (1  Moore, 
P.  C.  (N.  S.)  312)  approved,  lb.  See  Riel  v. 
Reg.,  ante,  ooL  323. 

Special  Leave— When  granted.]  —  Special 
leave  was  granted  to  appeal  against  the  convic- 
tion limited  to  show  that  being  the  sole  founda- 
tion for  the  subsequent  order,  it  had  been 
obtained  so  unfairly  as  not  to  be  conclusive 
for  that  purpose.    Billett,  In  re,  supra. 

Canadian  Election  Petition.] — Whether 


the  prerogative  of  the  Crown  has  or  has  not 
been  taken  away  by  the  general  prohibition  of 
appeals  under  the  Canadian  Controverted  Elec- 
tions Acts,  it  ought  not  to  be  exercised  in  the 
case  of  an  appeal  from  a  decision  of  the  Supreme 
Court  of  Canada  upon  an  election  petition,  con- 
sidering the  narrow  range  of  such  cases,  and  the 
desirability  of  their  being  decided  speedily  and 
locally.  Leave  to  appeal  refused.  Kennedy  v. 
Purcell,  59  L.  T.  279— P.  C. 

Improper    Concealment    of   Material 


Facts.]— Where  an  order  granting  special  leave 
to  appeal  had  been  made  upon  a  petition  which 
improperly  concealed  from  their  lordships  the 
ground  upon  which  the  appeal  had  been  refused 
by  the  court  below : — Held,  that  a  subsequent 
petition  that  further  evidence  be  taken  must  be 
refused,  as  nothing  will  be  done  to  assist  an 
appeal  so  instituted.  Baudains  v.  Jersey  Bank- 
ing Company,  13  App.  Cas.  832 — P.  C, 

Special  Beferenee  of  Matters  in  Dis- 


pute.]— Where  by  special  agreement  sanctioned 
by  the  court  the  petitioner  had  come  in  and  con- 
sented to  be  made  a  party  to  the  cause  in  appeal, 
and  to  be  bound  by  the  order  of  the  Supreme 
Court  to  be  made  therein,  but  by  the  terms  of 
the  agreement  the  powers  of  the  Supreme  Court 
were  defined  and  restricted,  and  its  order  to  be 
"  considered  a  final  disposition  of  all  contentions, 
whether  now  in  litigation  or  not "  : — Held,  that 
the  Supreme  Court  in  deciding  the  case  was  acting 
under  the  terms  of  a  special  reference,  and  not 
in  its  ordinary  jurisdiction  as  a  court  of  appeal, 
and  special  leave  to  appeal  refused.  iVota 
Scotia  (Attorney  -  General)  v.  Gregory,  11 
App.  Cas.  229  ;  55  L.  J.,  P.  0.  40  ;  55  L  T.  270 

Ho     General     Principle  —  Unanimous 


Judgment.] — Where  the  determination  of  a  case 
will  not  be  decisive  of  any  general  principle  of 


1 


389 


COLONY — Appeals  to  the  Privy  Council. 


840 


law,  the  judicial  committee  will  not  give  leave 
to  appeal  from  a  unanimous  judgment  of  the 
court  below,  on  the  ground  that  the  questions 
involved  are  either  of  great  importance  to  the 
parties,  or  calculated  to  attract  public  attention. 
Dumoulin  v.  Lang  try,  57  L.  T.  317— P.  C. 


Appealable  Amount.] — The  measure  of 


value  for  determining  a  defendant's  right  of 
appeal  is  the  amount  which  the  plaintiff  has 
recovered ;  where  this  falls  short  of  the  appeal- 
able amount  the  court  below  cannot  give  leave 
to  appeal.  Where  such  leave  has  been  erroneously 
given,  the  appeal  will  be  dismissed,  and  an 
opportunity  to  apply  for  special  leave  will  not 
be  granted  unless  the  circumstances  are  such 
as  to  render  it  desirable.  Allan  v.  Pratt,  13 
App.  Cas.  780  ;  57  L.  J.,  P.  C.  104  ;  59  L.  T.  674 
—P.  C. 

Consolidation  of  Appeals.] — Their  lordships 
will  consolidate  appeals  at  any  stage  if  it  appears 
convenient  that  they  should  be  heard  altogether. 
An  appeal  was  struck  out  and  ordered  to  be  con- 
solidated with  two  other  appeals  arising  out  of 
the  same  will,  but  in  a  suit  which  had  not  been 
instituted  till  a  year  after  the  first  appeal  had 
been  admitted.  Hiddingh  v.  Benyssen,  12  App. 
Cas.  107  ;  57  L.  T.  885— P.  C. 

Hew  Trial — Evidence — Question  for  Jury.] — 
Where  there  is  evidence  on  both  sides  properly 
submitted  to  the  jury,  the  verdict  of  the  jury 
once  found  ought  to  stand  : — So  held,  reversing 
an  order  of  the  court  below  which  had  Bet  aside 
a  verdict  as  against  the  weight  of  evidence 
though  it  was  neither  unreasonable  nor  unfair, 
nor  dissented  from  by  the  judge  who  tried  the 
case.  Commissioner  for  Railways  v.  Brown,  13 
App.  Cas.  133 ;  57  L.  J.,  P.  C.  72  ;  57  L.  T.  895— 
P.  C. 

Concurrent  Findings  of  Faots.] — Where  there 
have  been  concurrent  findings  of  fact  by  the 
courts  below,  the  question  in  appeal  is  not  what 
conclusion  their  lordships  would  have  arrived  at 
if  the  matter  had  for  the  first  time  come  before 
them,  but  whether  it  has  been  established  that 
the  judgments  of  the  courts  below  were  clearly 
wrong.    Allen  v.  Quebec  Warehouse  Company, 

12  App.  Cas.  101  ;  56  L.  J.,  P.  C.  6  ;  56  L.  T.  30 
— P.  C. 

Judgments  of  Judges— Seasons.]— It  is  most 
desirable  that  judges  in  the  colonies  should 
comply  with  the  rule  of  the  10th  of  February, 
1845,  as  to  giving  reasons  for  their  judgments. 
Colonial  Insurance  Company  of  New  Zealand 
v.  Adelaide  Marine  Insurance  Company,  12 
App.  Cas.  128— P.  C. 

Judge's  Hotes  of  Evidence.]— Where  judge's 
notes  of  evidence  are  mere  private  memoranda 
and  are  not  taken  in  pursuance  of  any  law  or 
practice  requiring  them : — Held,  that  it  would 
be  improper  to  have  them  before  a  Court  of 
Appeal.    Baudains  v.  Jersey  Banking  Company, 

13  App.  Cas.  832— P.  C. 

Appellant  not  having  pursued  Eemedy  in 
Court  below.] — Where  a  defendant  objected  to 
a  verdict  on  the  ground  that  it  was  not  war- 
ranted by  the  evidence,  but  neglected  to  move 
the  court  for  a  new  trial  in  the  manner  directed 


by  the  rules  and  practice  of  the  court :— Held, 
that  her  Majesty  in  Council  could  not  alter  the 
verdict,  or  set  it  aside,  and  could  not  be  advised 
to  direct  a  new  trial,  the  appellant  not  having 
applied  in  that  behalf  to  the  court  in  the  regular 
course.  Bagnino  v.  Bellotti,  11  App.  Cas.  604; 
55  L.  T.  497— P.  C. 

Petition  for  Honouring.]—  In  a  petition  for 
rehearing  of  two  appeals  which  had  been  fully 
heard  upon  their  merits,  and  in  which  judgment 
had  been  given  and  reported  to  her  Majesty, 
and  confirmed  by  regular  orders  in  Council  :— 
Held,  that  assuming  that  a  relevant  case  of  new 
matter  had  been  made  out,  the  decision  was  final, 
and  the  petition  must  be  refused.  There  may 
be  exceptional  circumstances  which  will  warrant 
this  Board,  even  after  an  order  of  her  Majesty 
in  Council  has  been  made,  in  allowing  a  rehear- 
ing at  the  instance  of  one  of  the  parties ;  but 
this  is  an  indulgence  with  a  view  mainly  to  doing 
justice  when,  by  some  accident,  without  blame, 
the  party  has  not  been  heard,  and  an  order  has 
been  made  inadvertently  as  if  the  party  had  been 
heard.  Venkata  Narasimha  Row  v.  Court  of 
Wards,  11  App.  Cas.  660— P.  C. 

Point  not  raised  in  Court  below.]— On  the 
argument  of  an  appeal  to  the  judicial  committee  in 
an  action  of  trespass  for  interrupting  the  flow  of 
a  stream  to  the  respondent's  land,  the  appellants 
contended  that  the  action  was  not  maintainable, 
because  it  was  not  brought  within  three  months 
of  the  trespass  complained  of,  and  because  no 
notice  of  action  had  been  given  as  required  by  a 
colonial  statute  : — Held,  that,  as  the  points  had 
not  been  raised  in  the  court  below,  the  appellants 
could  not  be  allowed  to  take  them  on  appeal 
Adelaide  Corporation  v.  White,  65  L.  T.  3—P.C 


COMMISSION. 

For  Examination  of  Witnesses.]— &*  Evi- 
dence. 

Of  Agents.]— See  Principal  and  Agent. 


COMMISSIONERS. 

Charity  Commissioners.] — See  Chabitt. 

Eeolesiastioal  Commissioners.] — See  Ecclesi- 
astical Law. 

Wreck  Commissioners.] — See  Shipping. 


COMMITMENT. 

By  Magistrates.]—  See  Justice    of   the 
Peace. 

Under  Debtors  Act] — See  Debtors  Act. 

For  Contempt  of  Court.] — See  Contempt  of 
Court. 


341 


COMMONS. 


842 


COMMONS. 

Fewer  of  Sale — Allotment*] — Where  by  virtue 
of  the  Charitable  Trusts  Act,  1853,  s.  24, 
and  the  Charitable  Trusts  Amendment  Act, 
1855,  s.  38,  a  power  of  sale  existed  at  the  date  of 
the  passing  of  the  Allotments  Extension  Act, 
1882,  oyer  lands  within  the  scope  of  the  last- 
mentioned  act,  that  act  did  not  take  away  the 
power  of  sale.  Sutton  {Parish  of)  to  Church, 
26  Ch.  D.  173  ;  63  L.  J.,  Ch.  599  ;  50  L.  T.  387  ; 
32  W.  B.  485— Chitty,  J. 

Iaelosure— Damage  by  working  Mines.] — See 
Bdl  v.  Love,  post,  Mines  and  Minerals. 

Commonable  Lands  purchased  by  Bail- 
way— Bights  of  Lord,  Owners  and  Occupiers.] — 
Prior  to  1802  the  occupiers  of  certain  cottages 
were  accustomed  to  cut  turf  on  large  tracts  of 
commonable  and  waste  lands  of  a  manor.  In 
that  year  an  Inclosure  Act  was  passed  by  which 
commissioners  were  empowered  to  allot  lands  in 
severalty  to  the  lord  and  other  persons  interested, 
tad  to  allot  to  the  lord  in  trust  for  the  occupiers 
of  the  cottages  portions  of  the  waste  for  a  turf 
common,  to  be  managed  as  the  lord  and  the 
churchwardens  and  overseers  should  order  and 
not  to  be  depastured.  The  commissioners  by 
their  award,  made  in  1806,  allotted  to  the  lord 
of  the  manor,  in  trust  for  the  occupiers  for  the 
time  being  of  the  cottages,  425  acres  of  waste  for 
a  turf  common  for  the  use  of  the  cottagers.  The 
oommissioners  also  allotted  to  the  lord  and  other 
persons  interested  portions  of  the  inclosed  lands  in 
severalty  in  lieu  of  their  rights  and  interests.  A 
railway  company  took  for  the  purposes  of  their 
undertaking  part  of  the  land  allotted  as  a  turf 
common,  and  the  purchase-money  was  paid  into 
court.  On  a  petition  by  the  freeholders  of  the 
cottages  for  the  distribution  of  the  fund  : — Held, 
that  the  owners  of  the  cottages  had  no  claim  on 
the  fund ;  that  the  lord  of  the  manor  was 
entitled  to  such  part  of  the  fund  as  represented 
the  value  of  the  soil  in  the  land  taken  by  the 
company  ;  and  that  the  remainder  of  the  fund 
was  to  be  held  as  a  charitable  trust  for  the 
benefit  of  the  occupiers  of  the  cottages.  Good- 
man t.  Saltash  {Mayor)  (7  App.  Cas.  633)  dis- 
cussed. Christchurch  Inclosure  Act,  In  re,  38 
Ch.  D.  520  ;  57  L.  J.,  Ch.  564  ;  68  L.  T.  827.— 
C.A. 

Power  to  stop   up  Highway— Old  In- 

tkewras.]— -By  s.  62  of  the  Inclosure  Act,  1845, 
power  is  given  to  the  valuer  acting  in  the  matter 
of  any  inclosure  to  set  out  and  make  public  roads 
and  ways,  and  widen  public  roads  and  ways,  in 
or  over  the  land  to  be  inclosed,  and  to  stop  up, 
divert  or  alter  any  of  the  roads  or  ways  passing 
through  the  land  to  be  inclosed,  or  "through 
any  old  inclosures  in  the  parish  or  respective 
parishes  in  which  the  land  to  be  inclosed  shall 
be  situate  "  : — Held,  that  the  power  of  stopping 
up  roads  so  given  is  not  confined  to  roads  pass- 
ing through  old  inclosures  or  intakes  from  the 
waste  or  common,  the  subject  of  inclosure,  but 
extends  to  roads  passing  through  any  old  in- 
closures within  the  parish.  Hornby  v.  Silvester, 
»  Q.  B.  D.  797  ;  57  L.  J.,  Q.  B.  568  ;  69  L.  T. 
€66;36W.  R.679;  52  J.  P.  468.— C.  A. 


Certificate  of  Oommissioners— Validity  of 

Charge— Borrowing  Powers.]— The  Biver  Dee 
Company  was  by  act  of  parliament  empowered 
to  borrow  upon  mortgage  of  the  lands  of  the 
company  any  sums  not  exceeding  25,0002.  The 
company,  however,  borrowed  more.  After  this 
the  Lands  Improvement  Company,  having  by 
its  acts  power  to  advance  to  landowners  money 
for  the  improvement  of  land,  advanced  to  the 
Biver  Dee  Company  6,405/.,  and  by  an  order 
the  Inclosure  Commissioners  purported  to  charge 
the  lands  of  the  Biver  Dee  Company  with  the 
repayment  of  that  sum  and  interest  by  annual 
instalments : — Held,  that  the  powers  given  by 
the  Lands  Improvement  Company's  Acts  did  not 
override  the  restriction  on  the  borrowing  powers 
of  the  Biver  Dee  Company,  and  that  the  charge 
on  the  lands,  of  the  Biver  Dee  Company  was 
consequently  invalid ;  and  that  a  clause  in  one 
of  the  Lands  Improvement  Company's  Acts 
making  the  certificate  of  the  Inclosure  Com- 
missioners conclusive  evidence  of  the  validity  of  a 
charge  under  the  act  did  not  render  the  charge 
valid  in  such  a  case.  Wenlock  {Baroness)  v. 
River  Dee  Company  (No.  2),  38  Ch.  D.  534  ;  57 
L.  J.,  Ch.  946  ;  59  L.  T.  485— C.  A. 

Grant  of  Woods  to  Copyholders — Charitable 
Purpose— Bepair  of  Boa  Dykes.] — See  Wilson  v. 
Barnes,  ante,  col.  311. 

Bye-laws— Letting  for  Hire  on  Common.] — M. 

had  premises  adjoining  a  common  regulated 
under  the  bye-laws  made  under  the  Commons 
Act,  1876,  where  she  let  ponies  for  hire.  M.  at 
her  premises  let  ponies  to  be  used  by  two  per- 
sons on  the  common,  and  they  used  them  there  : 
—  Held,  this  was  no  offence  within  the 
meaning  of  the  words  "  letting  for  hire  on  the 
common  any  pony/1  &c.  Marey  v.  Morris,  52 
J.  P.  168— D. 


COMPANY, 

L  Formation,    Constitution    and    In- 

COBPOBATION. 

1.  Prospectus. 

a.  General  Principles,  344. 

b.  Misstatements   when    Material,. 

346. 

c.  Disclosure  of  Contracts,  347. 

d.  Proceedings  for  Misrepresenta- 

tion, 348. 

2.  Memorandum  and  Articles  of  Asso- 

ciation, 350. 

3.  Registration. 

a.  Of  Companies,  351. 

b.  List  of  Members  and  Summary, 

354. 

c.  Inspection  of  Registers,  354. 

d.  Of  Mortgages— See  post,  IV.,  2,  b . 

e.  Of  Shares — See  post,  VI.,  7. 

II.  Pbomotebs  and  Dibectoes. 

1.  Promoters,  355. 

2.  Directors. 

a.  Appointment,  357. 

b.  Powers  and  Liabilities  generally, 

357. 

c.  Liability  for  Misfeasance,  359. 

IIL  Auditors,  364. 


848  COMPANY — Formation,  Constitution,  and  Incorporation.         844 


IV.  Borrowing  Powers,  Mortgages  and 
Debentures. 

1.  Borrowing  Powers,,  364. 

2.  Mortgages. 

a.  Validity,  366. 

b.  Registration,  366. 

3.  Debentures  and  Debenture  Stock. 

a.  What  are— Bills  of  Sale  Act,  368. 

b.  Validity  and  Effect  of,  370. 

c.  Priorities,  371. 

d.  Issue,  372. 

e.  Rights  of  Holders,  373. 

V.  Capital,  375. 

1.  Payment  of  Dividends  out  of—See 

ante,  cols.  360,  361,  362. 

2.  Reduction  of. 

a.  In  what  Cases,  375. 

b.  Petition  for,  378.     * 

YL  Shares  and  Stock. 

1.  Sale  on  Stock  Exchange,  380. 

2.  Application  and  Allotment,  381. 

3.  Issue,  382. 

4.  Provisions  in  A  rticles  of  Association, 

384. 

5.  Transfer,  386. 

6.  Registration  of  Contract  under  s.  25 

of  Companies  Act,  1867 — See  infra, 
XL,  15,  b. 

7.  Registration  of  Shares,  389. 

8.  Calls,  392. 

9.  Certificates,  394. 
10.  Other  Points,  397. 

TIL  Dividends,  398. 

VIII.  Contracts,  400. 

IX.  Meetings  of  Shareholders,  403. 

X.  Actions  by  and  against  Companies, 

408. 

XI.  Winding  up. 

1.  What  Companies,  409. 

2.  Orders  for,  412. 

3.  Petitions. 

a.  By  whom  presented,  413. 

b.  Practice,  414. 

c.  Costs,  416. 

4.  Staying  and  Restraining  Proceed* 

ings,  417. 

5.  Liquidators  and  Receivers,  419. 

6.  Rent  and  Rates,  423. 

7.  Set-off,  425. 

8.  Assets. 

a.  Sale  of,  428. 

b.  Distribution  of,  428. 

9.  Invalid  and  Protected  Transactions, 

433. 

10.  Scheme  of  Arrangement,  437. 

11.  Reconstruction,  438. 

12.  Examination  of  Witnesses  and  Books, 

438. 

13.  Practice,  440. 

14.  Balance  Order,  443. 

15.  Contributories. 

a.  Qualification  Shares,  444. 

b.  Fully  paid  Shares,  446. 

c.  Subscribers  to  Memorandum,  450. 

d.  Allottees  and  Applicants,  451. 

e.  Transferees  and  Nominees,  453. 
/.  Trustees,  454. 

g.  Company  limited  by  Guarantee, 
455. 


I.    FORMATION,    C0H8TITUTI0*,   AHD 
IHCORPORATIOM. 

1.  PROSPECTUS. 
a.    General   Principles. 

False  Representation— Contributory  Mistake 
of  Plaintiff.] — Where  a  plaintiff  has  been  in- 
duced both  by  his  own  mistake  and  by  a  material 
misstatement  by  the  defendant  to  do  an  act  by 
which  he  receives  injury,  the  defendant  may  be 
made  liable  in  an  action  for  deceit.  Edgington 
v.  Fitzmauricc,  29  Ch.  D.  459 ;  53  L.  T.  869 ; 
33  W.  R.  911 ;  65  L.  J.,  Ch.  650  ;  60  J.  P.  52- 
C.A. 

Hot  only  Inducement.] — Where  a  mis- 
statement of  fact  by  the  defendant  materially 
tended  to  induce  the  plaintiff  to  do  an  act  by 
which  he  has  incurred  damage,  the  defendant 
may  be  made  liable  in  an  action  of  deceit, 
although  the  misstatement  was  not  the  only  in- 
ducement to  the  act.  Peek  v.  Derry,  37  Cb.  D. 
541  ;  67  L.  J.,  Ch.  347  ;  59  L.  T.  78  ;  36  W.  B. 
899— C.  A.    See  &  C.  in  H.  L.  33  S.  J.  589. 

Where  a  person  seeks  to  rescind  a  contract  to 
take  shares  on  the  ground  of  misrepresentatioD, 
it  is  not  necessary  that  he  should  prove  that  if 
the  misrepresentation  had  not  been  made  he 
would  not  have  taken  the  shares.  It  is  sufficient 
if  there  is  evidence  to  show  that  he  was  ma- 
terially influenced  by  the  misrepresentatioD. 
Carting  v.  London  and  Leeds  Bank,  56  L.  J., 
Ch.  321 ;  56  L.  T.  115 ;  36  W.  R.  344— Stir- 
ling, J. 

Reference  to  Vendor's  Report— Ho  Guarantee 
by  Promoter.]  — The  prospectus  of  a  mining 
company,  registered  under  the  Companies  Acts, 
contained  statements  which  were  based  upon  a 
report  appended  to  the  prospectus,  and  made  by 
the  vendor  to  the  company,  concerning  the 
mining  property  sold  by  him  to  it,  which  was 
situate  in  British  Burmah.  Upon  an  engineer 
being  subsequently  sent  out  by  the  company  to 
work  the  mine,  the  vendor's  report  was  found  to 
be  absolutely  untrue,  and  the  mine  was  shown 
to  be  an  entire  failure  and  utterly  worthless. 
Relying  upon  this  information  as  to  the  property 
afforded  by  the  company's  mining  engineer,  a 
shareholder  applied  to  have  his  name  removed 
from  the  register  of  members  of  the  company  on 
the  ground  of  misrepresentations  in  and  sup- 
pression of  material  facts  from  its  prospectus : — 
Held,  that  the  promoters  of  the  company  had  not 
guaranteed  the  truth  of  the  vendors  report,  nor 
were  they  the  persons  by  whom  the  shareholder 
had  been  deceived ;  that  the  shareholder  was 
aware  of  all  the  circumstances  from  the  first, 
and  knew  as  much  as  the  promoter  did,  and  he 
had  no  right  to  be  put  in  a  better  position  than 
the  other  shareholders ;  and  that  therefore  his 
application  must  be  refused.  Vichers,  Ex  parte* 
British  Burmah  Lead  Company,  In  re,  56  L.  T. 
815— Kay,  J. 

Ho  reasonable  Ground  for  Statement.]— The 
act  incorporating  a  tramway  company  provided 
that  the  carriages  might  be  moved  by  animal 
power,  and,  with  the  consent  of  the  Board  of 
Trade,  by  steam  or  other  mechanical  power.  The 
directors,  who  expected  that  they  would  without 
difficulty  obtain  the  consent  of  the  Board  of 


846         COMPANY — Formation,  Constitution,  and  Incorporation.  846 


Trade,  issued  a  prospectus  in  which  they  stated 
that  by  their  special  act  the  company  had  a 
right  to  use  steam  power  instead  of  horses.  The 
plaintiff  took  shares  on  the  faith  of  this  pro- 
spectus, and  stated  in  his  evidence  that  he  was 
induced  to  take  them  by  the  statement  that  the 
company  had  the  right  to  use  steam  power,  and 
also  bj  his  knowledge  of,  and  interest  in,  the 
locality,  and  his  confidence  in  the  character  of 
the  directors.  The  Board  of  Trade  refused  their 
sanction  to  the  use  of  steam  power,  and  the 
company  was  wound  up.  The  plaintiff  brought 
an  action  against  the  directors  claiming  damages 
for  their  misstatement  in  the  prospectus : — Held, 
that  the  directors  were  liable  for  the  misstate- 
ment, as  it  was  made  without  reasonable  ground 
for  their  believing  it.    Peek  v.  Berry,  supra. 

Adoption  by  Director.] — One  of  the  defendants 
was  not  present  at  the  meeting  which  issued  the 
prospectus,  but  a  few  days  afterwards  he  re- 
ceived some  copies  of  it  and  circulated  them : — 
Held,  that  he  had  adopted  the  prospectus,  and 
was  liable  to  the  plaintiff,  although  the  copy 
seen  by  the  plaintiff  had  not  been  supplied  to 
him  by  the  defendant    lb. 


b.  Misstatements  when  Material. 

Misstatement  of  Object  or  Intention.]— A 
misstatement  of  the  intention  of  the  defendant 
in  doing  a  particular  act  may  be  a  misstatement 
of  fact,  and  if  the  plaintiff  was  misled  by  it 
an  action  of  deceit  may  be  founded  on  it. 
Edgingtan  v.  Fitzmanrice,  29  Ch.  D.  459  ;  55 
L.  J.,  Ch.  650 ;  53  L.  T.  369 ;  33  W.  R.  911 : 
50  J.  P.  52— C.  A. 

The  directors  of  a  company  issued  a  prospectus 
inviting  subscriptions  for  debentures,  and  stating 
that  the  objects  of  the  issue  of  debentures  were 
to  complete  alterations  in  the  buildings  of  the 
company,  to  purchase  horses  and  vans,  and  to 
develop  the  trade  of  the  company.  The  real 
object  of  the  loan  was  to  enable  the  directors 
to  pay  off  pressing  liabilities.  The  plaintiff 
advanced  money  on  some  of  the  debentures 
under  the  erroneous  belief  that  the  prospectus 
afforded  a  charge  upon  the  property  of  the 
company,  and  stated  in  his  evidence  that  he 
would  not  have  advanced  his  money  but  for  such 
belief,  bnt  that  he  also  relied  upon  the  state- 
ments contained  in  the  prospectus.  The  com- 
pany became  insolvent : — Held,  that  the  mis- 
statement of  the  objects  for  which  the  deben- 
tures were  issued  was  a  material  misstatement 
of  fact,  influencing  the  conduct  of  the  plaintiff, 
sad  rendered  the  directors  liable  to  an  action 
for  deceit,  although  the  plaintiff  was  also  in- 
fluenced by  his  own  mistake.    lb. 

"Capital  already  subscribed."] —The  pro- 
pectus  of  a  company  contained  a  statement 
that  the  share  capital  was  300,000/.,  of  which 
200,000/.  had  been  already  subscribed.  At 
the  date  of  the  prospectus  only  35/.  had  been 
actually  subscribed,  but  there  were  two  con- 
tacts between  the  company  and  A.  under 
which  A.  bad  agreed  to  take  200,000/.  in  fully 
paid-up  shares  as  the  consideration  for  the  sale 
**  a  concession,  and  as  part  payment  for  the 
WMtmction  of  certain  works :— Held,  that  this 
•tatement  was  material  and  untrue.  Arnison  v. 
Wtt,  59  L.  T.  627— Kekewich,  J.  Affirmed,  41 
Ch.  D.  348— C.  A, 


Confident  belief  in  Sufficiency  of  "  Profits."  ]— 
The  defendants  were  shareholders  in  the  Date- 
Coffee  Company,  a  company  whose  objects  were 
declared  to  be  the  acquisition  of  licences  to  use 
an  invention  for  manufacturing  from  dates  a 
substitute  for  coffee,  for  which  a  patent  had 
been  granted  to  H.  (one  of  the  defendants),  and 
to  sell,  &c,  the  patent-rights  when  acquired  by 
the  company.    Of  this  company  the  other  defen- 
dants were  the  chairman  and   the    solicitor; 
H.  was  the  consulting  engineer.    H.  was  also 
possessed  of  a  patent  for  the  manufacture  and 
sale  of  date-coffee  in  France ;  and  a  company 
was  formed  for  that  purpose,  called  the  French 
Date-Coffee  Company,  with  a  capital  of  100,000/. 
in  100,000  shares  of  1/.  each,  by  whom  H/s 
patent  for  France  was  purchased  for  50,000/., 
which  sum  it  was  agreed  should  be  divided  as  a 
bonus  amongst  the  shareholders  in  the  English 
company.    The  defendants  prepared  and  issued 
a  prospectus  of  the  French  company,  containing 
the   following    passage  : — "  From    the   success 
attending  the  company  formed  for  the  working 
of  Henley's  English  patent,  when  a  duty  of 
2d.  per  lb.  is  payable,  and  the  coffee  sold  at  1*. 
per  lb.,  the  directors  feel  justified  in  stating  they 
confidently  believe  the  profits  of  this  company 
will  be  more  than  sufficient  to  pay  dividends  of 
at  least  50  per  cent,  on  the  nominal  capital,  and 
will  exceed  those  of  the  company  working  the 
English  patent,  which,  having  only  been  formed 
a  little  over  twelve  months,  has  entered  into  a 
contract  which  will  yield  the  return,  by  way  of 
annual  dividends,  of  a  sum  equal  to  the  whole 
paid-up  capital  of  the  company  of  34,000/."    At 
the  time  at  which  this  prospectus  was  issued  the 
period  had  not  arrived  at  which  "  profits  "  in  a 
commercial  sense  could  have  been  acquired  by  the 
English  company  ;  but  the  article  had  been  sold 
in  the  English  market  and  received  with  some 
favour,  and  an  agreement  had  been  entered  into 
by  the  company  with  a  merchant  or  broker  in 
London  to  take  all  they  could  make.    The  plain- 
tiff, influenced  partly  by  the  above  statement  in 
the  prospectus,  partly  from  information  derived 
from  another  source,  and  partly  by  the  favourable 
opinion  he  had  formed  of  the  article  to  be  manu- 
factured, purchased  100  shares  in  the  French 
company,  and  paid  the  deposit.     He  had  no 
connexion  with  the  English  company.    Owing 
to  various  circumstances,  the  hopes  held  out  in 
the  prospectus  were  not  realised,  and  the  French 
Date-Coffee  Company  was  ultimately  wound  up  ; 
and  the  plaintiff  sought  to  recover  from  the 
defendants  the  sum  he  had  paid  as  deposit-money 
and  the  amount  of  calls  for  which  he  had  become 
and  would  become  liable,  as  damages : — Held, 
that  the  statements  complained  of,  though  ex- 
pressing the  strongest  confidence  that  the  com- 
pany referred  to  would  be  successful  and  would 
make  large  profits  by  the  sale  of  the  article  to 
be  manufactured,  could  not  fairly  be  read  as 
alleging  that  profits  in  a  commercial  sense  had 
actually  been  made,  and  consequently  that  there 
was  no  evidence  which  could  be  properly  left  to 
a  jury.     BeUairs  v.  Tucker,  13  Q.  B.  D.  562— 
Denman,  J. 

Amount  of  Purchase-money  paid  to  Vendors.] 

— The  plaintiffs,  by  one  of  their  directors,  who 
was  also  their  stockbroker,  were  induced  to  take 
shares  in  the  defendant  company  by  means  of  a 
prospectus  issued  by  the  directors  of  the  defen- 
dant company,  also  defendants  to  the  action, 


348 


1867,  although  it  stated  where  full  prospectuses 
could  be  obtained.  White  v.  Haymen,  1  C.  &  E. 
101— Mathew,  J. 


847  COMPANY — Formation,  Constitution,  and  Incorporation. 

whereby  it  was  stated  that  the  purchase-money 
paid  to  the  vendors  for  the  company's  business 
was  36,0002.,  whereas,  in  fact,  of  that  sum  6,000/. 
was  paid  to  a  promoter  who  was  in  no  sense  a 
vendor.  Such  promotion  money  was  paid  under 
a  parol  agreement  between  the  true  vendor  and 
the  promoter,  to  which  no  reference  was  made 
by  the  prospectus  : — Held,  that  the  statement  as 
to  the  purchase-money  was  a  material  misrepre- 
sentation, and  that,  the  plaintiffs'  agent  having 
relied  upon  it,  the  plaintiffs  were  entitled  to 
rescission  as  against  the  company,  and  to 
damages  as  against  the  directors  who  issued  the 
fraudulent  prospectus.  Capel  v.  Sim's  Ships 
Compositions  Company,  57  L.  J.,  Ch.  713  ;  58 
L.  T.  807 ;  36  W.  B.  689— Kekewich,  J. 


Paragraph  and  Marginal  Ho te— Construc- 
tion.]— In  one  of  the  paragraphs  of  a  prospectus 
issued  by  the  directors  of  a  company  there  was  a 
statement  that  "  the  completion  of  the  works 
will  enable  the  company  to  increase  their  pre- 
sent capacity  for  manufacture  from  400  to  1,000 
tons  per  annum  "  ;  and  in  the  margin  there  was 
this  note :  "  Increase  of  present  manufacture." 
Each  paragraph  of  the  prospectus  had  a  mar- 
ginal note  indicating  its  contents.  The  jury 
found  that  t;ie  marginal  note,  coupled  with  the 
statement  against  which  it  was  written,  amounted 
to  a  statement  that  the  present  manufacture  of 
the  works  was  400  tons  per  annum,  and  that  this 
was  a  fraudulent  misrepresentation  : — Held,  by 
the  Court  of  Appeal,  that  the  paragraph  and  the 
marginal  note  could  only  be  construed  in  one 
way  as  referring  to  the  capacity  of  the  works 
for  manufacture,  and  that  therefore  the  question 
whether  the  two  taken  together  could  be  con- 
strued so  as  to  imply  that  the  present  manufac- 
ture was  400  tons  per  annum  ought  not  to  have 
been  left  to  the  jury : — Held,  by  the  Queen's 
Bench  Division,  that  the  construction  of  the 
prospectus  was  for  the  judge  and  not  for  the 
jury.  Moore  v.  Explosives  Co.,  56  L.  J.,  Q.  B. 
235— C.  A. 


o.  Disclosure  of  Contracts. 

Companies  Act,  1867,  s.  38 — Parol  Agree- 
ment.]— The  plaintiffs,  by  one  of  their  directors, 
who  was  also  their  stockbroker,  were  induced  to 
take  shares  in  the  defendant  company  by  means 
of  a  prospectus  issued  by  the  directors  of  the  de- 
fendant company,  also  defendants  to  the  action, 
whereby  it  was  stated  that  the  purchase-money 
paid  to  the  vendors  for  the  company's  business 
was  36,0002.,  whereas,  in  fact,  of  that  sum  6.000Z. 
was  paid  to  a  promoter  who  was  in  no  sense  a 
vendor.  Such  promotion  money  was  paid  under 
a  parol  agreement  between  the  true  vendor  and 
the  promoter,  to  which  no  reference  was  made 
by  the  prospectus : — Held,  that  the  agreement 
was  such  a  contract  as  ought  to  have  been  dis- 
closed by  the  prospectus,  as  provided  by  s.  38  of 
the  Companies  Act,  1867.  Capel  v.  Sim's  Ships 
Compositions  Company,  67  L.  J.,  Ch.  713  ;  58 
L.  T.  807 ;  36  W.  R.  689— Kekewich,  J. 


Abridged   Prospectus.] — An  "abridged 


prospectus  "  not  containing  the  date  of,  nor  the 
names  of  the  parties  to,  a  contract  for  the  sale  of 
a  patent  to  be  worked  by  the  company,  to  trus- 
tees on  behalf  of  the  company: — Held  to  be 
fraudulent  within  s.  38  of  the  Companies  Act, 


d.  Proceedings  for  Misrepresentation. 

Burden  of  Proof— Ambiguous  Meaning.]— The 
prospectus  of  a  company  which  was  being  formed 
to  take  over  ironworks,  contained  a  statement 
that  u  the  present  value  of  the  turnover  or  out- 
put of  the  entire  works  is  over  1,000,0002.  sterling 
per  annum."  If  that  statement  meant  that  the 
works  had  actually  in  one  year  turned  out  pro- 
duce worth  at  present  prices  more  than  a  million, 
or  at  that  rate  per  year,  it  was  untrue.  If  it 
meant  only  that  the  works  were  capable  of  tam- 
ing out  that  amount  of  produce  it  was  true.  In 
an  action  of  deceit  for  fraudulent  misrepresenta- 
tion whereby  the  plaintiff  was  induced  to  take 
shares,  he  swore  in  answer  to  interrogatories  that 
he  "  understood  the  meaning  "  of  the  statement 
"to  be  that  which  the  words  obviously  con- 
veyed," and  at  the  trial  was  not  asked  either  in 
examination  or  cross-examination  what  inter- 
pretation he  had  put  upon  the  words: — Held 
that  the  statement  taken  in  connexion  with 
the  context  was  ambiguous  and  capable  of 
the  two  meanings  ;  that  it  lay  on  the  plaintiff  to 
prove  that  he  had  interpreted  the  words  in  the 
sense  in  which  they  were  false,  and  had  in  fact 
been  deceived  by  them  into  taking  the  shares, 
and  that  as  he  had  as  a  matter  of  fact  failed  to 
prove  this,  the  action  could  not  be  maintained. 
Smith  v.  Chadwick,  9  App.  Cas.  187 ;  50  L.  T. 
697  ;  32  W.  B.  687  ;  48  J.  P.  644— H.  L.  (E.). 

Held,  by  Lord  Bramwell,  that  the  statement 
was  capable  only  of  the  meaning  in  which  it  was 
untrue,  and  that  the  plaintiff  had  proved  that  he 
had  understood  it  in  that  sense,  out  that  there 
was  not  sufficient  evidence  that  the  statement 
was  fraudulent  on  the  part  of  the  defendants. 
lb. 

Company  Insolvent  when  Proceedings  com- 
menced.]— Where  a  person  has  been  induced  to 
take  shares  in  a  company  by  misrepresentation 
contained  in  the  prospectus,  the  mere  circum- 
stance that  the  company  is  insolvent  at  the  time 
when  he  takes  proceedings  to  rescind  his  con- 
tract to  take  shares  does  not,  in  the  absence  of 
countervailing  equities,  deprive  him  of  his  right 
to  rescind.  Carling  v.  London  and,  Leeds  Bank, 
56  L.  J.,  Ch.  321  ;  56  L.  T.  115  ;  35  W.  B.  344- 
Stirling,  J. 

On  the  6th  of  September,  C.  applied  for  shares 
in  a  company,  being  induced  so  to  do  by  mis- 
representations in  the  company's  prospectus. 
On  the  7th  of  September  he  received  notice  of 
allotment  On  the  22nd  of  September  he  wrote 
repudiating  his  contract  on  the  ground  of  the 
misrepresentation,  and  on  the  same  day  com- 
menced an  action  for  rescission.  On  the  24th  of 
September  he  moved  to  have  the  register  of 
members  rectified  by  removing  his  name  there- 
from, and  on  the  same  day  a  petition  for  the 
winding-up  of  the  company  was  presented,  upon 
which  an  order  was  afterwards  made.  The 
company  was  insolvent,  and  had  been  so  pre- 
viously to  the  22nd  of  September,  but  had  not 
stopped  payment,  and  was  issuing  advertise- 
ments for  applications  for  shares.  Nearly  all 
the  debts  of  the  company  had  been  contracted 
before  the  6th  of  September :— Held,  that  C. 


849 


COMPANY — Formation,  Constitution,  and  Incorporation. 


350 


was  entitled  to  have  his  name  removed  from 
the  register.    lb. 

Deity  —  Waiver  —  Distinct  Misrepresenta- 
tions.]— H.  desired  to  repudiate  his  shares  in  a 
company,  and  relied  on  two  distinct  misrepre- 
sentations contained  in  the  prospectus.  The 
company  was  in  coarse  of  being  wound  up,  and 
the  liquidator  opposed  H.'s  application.  The 
court  held  that,  as  to  the  first  misrepresentation 
complained,  H.  had  applied  too  late.  The  liqui- 
dator, on  the  authority  of  Whitehmtse's  case  (3 
L.  R..  Eq.  790).  than  contended  that  H.  was 
therefore  precluded  from  raising  a  case  on  the 
second  misrepresentation  : — Held,  that  the  fact 
of  H.  failing  on  the  first  misrepresentation  did 
not  preclude  him  from  raising  a  case  on  the 
second  misrepresentation,  there  being  no  allega- 
tion of  delay  in  proceeding  after  discovery  by  H. 
of  the  second  misrepresentation,  and  no  allega- 
tion that  the  two  misrepresentations  were  in 
anywise  connected  with  each  other.  Held, 
also,  that  Whitekousc's  case  (ubi  sup.)  did  not 
decide  that  the  waiver  of  one  point  was  a 
waiver  of  all;  but  that  the  waiver  of  an 
objection  that  there  was  a  discrepancy  be- 
tween a  company's  prospectus  and  its  memo- 
randum and  articles  .of  association  amounted  to 
a  waiver  of  any  other  discrepancy.  Held, 
therefore,  that  H.  was  entitled  to  have  hiB 
name  removed  from  the  register  of  share- 
aolders.  Hale,  Ex  parte,  London,  and  Pro- 
riucial  Electric  Lighting  Company,  In  re,  55 
L.  T.  670— Chitty,  J. 

Diseontinnance  of  Proceedings.] — An  action 
was  brought  to  avoid  a  contract  to  take  shares 
on  the  ground  of  misrepresentation  in  the  pro- 
spectus. The  plaintiff  informed  the  company 
he  shonld  discontinue  proceedings  : — Held,  that 
by  so  doing  and  taking  no  further  steps  for 
nine  months,  be  had  elected  to  adopt  the 
contract,  and  could  not  avoid  it.  Acid  v. 
L*ndon  and  Staffordshire  Fire  Insurance  Com- 
pany, 53  L.  J.,  Ch.  351 ;  49  L.  T.  468  ;  32  W.  R. 
$4— Mathew,  J. 

Anterior  Sole  by  Shareholder  of  some  of  Shares 

takes.] — Where  a  shareholder  in  a  company  has 
sold  some  of  the  shares  originally  taken  by  him, 
be  is  not  thereby  deprived  of  his  right  to  have 
the  contract  (which  is  a  severable  one)  rescinded 
as  to  the  remainder  on  the  ground  of  fraudulent 
nrisrepresentations  in  the  company's  prospectus, 
provided  that  the  shares  sold  were  parted  with 
before  the  fraud  was  discovered  by  the  share- 
holder. West,  Ex  parte,  Mount  Morgan  (  West) 
BM  Mine,  In  re,  56  L.  T.  622— Kay,  J. 

Toting  at  Subsequent  Meeting.] — Where  after 
issue  joined  and  notice  of  trial  given  in  an  action 
by  a  shareholder  to  have  his  name  removed  from 
the  register  of  shareholders  on  the  ground  of 
innd,  the  plaintiff  attended  and  voted  at  a 
meeting  of  shareholders  held  in  the  liquidation 
of  the  company : — Held,  that  the  issue  of  the 
writ  was  a  definitive  election  to  rescind,  and  that 
this  election  was  not  qualified  by  the  subsequent 
voting  at  the  meeting.  Fovlkes  v.  Quartz  Hill 
^ruolidated  Gold  Mining  Company,  1  C.  &  E. 
156-C.A. 

Wotiee— Delay.] — The  provisions  of  articles 
33,  97,  of  table  A  to  the  Companies  Act,  1862, 


for  the  service  of  notices  by  a  company  on  its 
members,  apply  only  to  notices  relating  to  the 
ordinary  business  of  the  company,  and  service  in 
the  way  there  pointed  out  is  not  sufficient  for  the 
purpose  of  fixing  a  shareholder  with  knowledge 
of  a  misrepresentation  which  would  entitle  him 
to  repudiate  his  shares,  unless  he  had  been  guilty 
of  laches  after  notice  of  the  misrepresentation. 
London  and  Staffordshire  Fire  Insurance  Com- 
pany, In  re,  Wallace's  case.  24  Ch.  D.  149 ;  53 
L.  J.,  Ch.  78 ;  48  L.  T.  955 ;  31  W.  R.  781— 
Pearson,  J. 

Measure  of  Damages.]  —  The  amount  of 
damages  to  be  recovered  by  a  plaintiff  is  the 
difference  between  the  price  paid  by  him  for 
the  shares  and  the  real  value  of  the  shares  at 
the  time  of  allotment ;  such  value  must  be 
ascertained  not  by  the  market  value  of  the 
shares  at  the  time,  but  by  the  light  of  subse- 
quent events,  including  the  result  of  the 
winding-up  of  the  company.  Peck  v.  Berry, 
ante,  col.  344. 

Persons  who  had  taken  stock  upon  the  faith 
of  misrepresentations  in  a  prospectus  are  en- 
titled to  damages  to  be  measured  by  the 
difference  between  the  actual  value  of  the 
stock  purchased  and  the  price  paid  for  it. 
Arnison  v.  Smith,  59  L.  T.  627— Kekewich,,  J. 
Affirmed,  41  Ch.  D.  348— C.  A. 


2.  MEMORANDUM  AND  ARTICLES  OF 
ASSOCIATION. 

Signature  to  Memorandum  by  Agent.]— C. 
verbally  authorized  O.  to  sign  on  his  behalf 
the  memorandum  of  association  of  a  company. 
O.  accordingly  signed  the  name  of  C.  to  the 
memorandum  without  his  own  name  appearing. 
The  company  being  in  course  of  winding  up,  C. 
was  put  on  the  list,  and  applied  to  have  his 
name  removed,  on  the  ground  that  he  had  never 
signed  the  memorandum  nor  agreed  to  take 
shares  : — Held,  that  there  being  nothing  in  the 
Companies  Act,  1862,  to  show  that  the  Legis- 
lature intended  anything  special  as  to  the  mode 
of  signature  of  the  memorandum,  the  ordinary 
rule  applied  that  signature  by  an  agent  is  suffi- 
cient ;  that  although  by  s.  11  of  the  act  a  sub- 
scriber is  bound  in  the  same  way  as  if  he  had 
signed  and  sealed  the  memorandum,  still  the 
memorandum  is  not  a  deed,  and  it  is  not  neces- 
sary that  the  authority  to  sign  it  should  be  given 
by  deed ;  that  though  it  was  irregular  for  O.  to 
sign  C.'s  name  without  denoting  that  it  was 
signed  by  0.  as  his  attorney,  the  signature  was 
not  on  that  ground  invalid  ;  and  therefore  that 
C.  was  not  entitled  to  have  his  name  removed 
from  the  list.  Wliitlcy  $  Co.,  In  re,  Callanf 
Ex  parte,  32  Ch.  D.  337  ;  55  L.  J.,  Ch.  540 ;  54 
L.  £  912  ;  34  W.  R.  506— C.  A. 

Appointment  of  Directors.] — See  infra,  II., 
2,  a. 

Borrowing  Powers  and  Mortgagee.]  —  See 
infra,  IV.,  1 ;  IV.,  2,  a. 

In  relation  to  Shares  and  Calls.] — See  infra, 
VI.,  4  ;  VI.,  8. 

In  relation  to  Dividends.] — Sec  infra,  VII. 
In  relation  to  Contracts.]— See  infra,  VIII. 


1 


851  COMPANY — Formation,  Constitution,  and  Incorporation. 


362 


Alteration  of  Articles  by  Botolution.]— &« 
infra,  IX. 

Mode  of  taking  Poll.]— See  infra,  IX. 

Effect  of,  on  Distribution  of  Aiiete.]— See 
infra,  XI.,  8,  b« 

Qnalifieation  Sharei.] — See  infra,  XI.,  15,  a. 

Subscribers  to  Memorandum.] — See  infra,  XL, 
15,  c. 

Company  limited  by  Guarantee.] — See  infra, 
XI.,  16,  g. 

3.  REGISTRATION. 
a.  Of  Companies. 

Friendly  Society.] — A  society  which  has  been 
registered  under  a,  8,  sub-s.  5,  of  the  Friendly 
Societies  Act,  1875,  pursuant  to  the  special 
authority  of  the  Treasury,  is  excepted  from  the 
provisions  of  s.  4  of  the  Companies  Act,  1862. 
Peat  v.  Fowler,  55  L.  J.,  Q.  B.  271  ;  34  W.  B. 
366— D. 

Association  haying  for  its  Objeet  the  Ac- 
quisition of  Gain— Gain  by  Individual  Mem- 
ben.] — T.  was  the  president  of  a  loan  society. 
The  objects  of  the  society  were  to  form  a  fund, 
from  which  money  might  be  advanced  to  enable 
shareholders  to  build  or  purchase  a  dwelling- 
house  or  other  buildings,  or  to  lend  money  to 
each  other  on  approved  personal  security ;  five 
per  cent,  interest  was  to  be  charged  on  all 
moneys  advanced  by  the  society.  The  society 
consisted  of  more  than  twenty  members,  and 
was  not  registered  under  any  statute.  The 
society  advanced  a  sum  of  money  to  the  de- 
fendants who  signed  promissory  notes  by  way  of 
security  for  the  loan  ;  and  when  T.  went  out  of 
office,  he  indorsed  the  promissory  notes  to  the 

Elaintiff,  who  succeeded  him.  The  plaintiff 
aving  sued  upon  the  notes  for  the  benefit  of 
the  society : — Held,  that  the  society,  not  having 
been  registered,  was  rendered  illegal  by  the 
Companies  Act,  1862  (25  &  26  Vict  c.  89),  s.  4, 
it  being  an  association  having  "  for  its  object  the 
acquisition  of  gain,"  within  the  meaning  of  that 
enactment ;  that  the  plaintiff  could  not  be  in  a 
better  position  than  the  society,  and  there- 
fore could  not  recover  upon  the  promissory  notes. 
Padstoto  Total  Loss  and  Collision  Assurance 
Association,  In  re  (20  Ch.  D.  137),  followed. 
Jennings  v.  Hammond  (9  Q.  B.  D.  225)  approved. 
Shaiv  v.  Benson,  11  Q.  B.  D.  563 ;  62  L.  J.,  Q.  B. 
576  ;  49  L.  T.  651— C.  A. 

Formation  before  the   Companies  Act, 

1802 — Change  of  Members.]  —  An  association, 
consisting  of  more  than  twenty  persons,  was 
formed  before  the  commencement  of  the  Com- 
panies Act,  1862,  to  receive  contributions  from 
the  members,  and  sell  the  money  in  hand,  from 
time  to  time,  in  shares  varying  from  20?.  to  100/., 
to  the  highest  bidder  among  them.  The  pre- 
miums paid  by  the  purchasers  were  divided  as 
profits  among  all  the  members.  When  the  amount 
of  the  contributions  and  profits  of  a  member 
who  had  purchased  a  share  equalled  the  amount 
of  such  share,  or,  in  the  case  of  a  member  who 
did  not  borrow,  when  the  amount  of  his  con- 


tributions and  profits  equalled  the  amount  of 
the  share  in  respect  of  which  he  had  joined,  and 
he  was  paid  off,  membership  ceased  in  respect  of 
such  share.  New  members,  however,  were  con- 
tinually joining,  and  the  existence  of  the  society 
was  continuous : — Held,  that  the  association 
was  not  "  formed  "  within  the  meaning  of  s.  4  of 
the  act  on  each  occasion  of  a  change  of  mem- 
bership, and  did  not  require  to  be  registered 
under  the  act.  Shaw  v.  Simmons,  12  Q.  B.  D. 
117  ;  53  L.  J.,  Q.  B.  29  ;  32  W.  R.  292— D. 


Freehold  Land  Society— Trustees.]— The 


Eastwood  View  Freehold  Land  Society,  consist- 
ing of  more  than  twenty  persons,  was  constituted 
by  a  deed  of  trust,  made  between  the  trustees 
and  the  members,  incorporating  the  rules  of  the 
society.  By  the  rules  of  the  society,  its  object 
was  stated  to  be  to  purchase  a  freehold  estate, 
and  to  divide  it  into  lots,  and  to  apportion  them 
among  the  members  ;  but  the  right  to  get,  win, 
sell,  lease,  or  dispose  of  the  coal  or  minerals 
was  not  to  be  conveyed,  but  to  "  remain  Tested 
in  the  trustees,  who  shall  have  full  power  to 
sell,  lease,  get  or  win  the  coals,  at  such  price  or 
prices,  and  in  such  manner  as  they  may  think 
best,  the  profits  or  proceeds  of  which  shall  be 
divided  amongst  the  shareholders  in  the  pro- 
portion," &c.  The  trustees  of  the  society  were 
three  in  number.  In  an  action  by  the  trustees  of 
the  society  against  a  member  to  recover  arrears 
of  contributions  and  fines  payable  by  him  in 
respect  of  his  lots : — Held,  that  the  society 
carried  on  no  business  other  than  the  business  of 
mining ;  and  that  the  business  of  mining  was 
carried  on  by  the  trustees  of  the  society  as 
trustees  only,  and  not  as  agents  or  directors,  and 
that,  as  they  were  fewer  than  twenty,  the  so- 
ciety was  not  within  the  terms  of  the  Companies 
Act,  1862  (25  &  26  Vict,  c  89),  s.  4,  so  as  to 
require  registration.  Crowther  v.  Thorley,  50 
L.  T.  43  ;  32  W.  R.  330  ;  48  J.  P.  292— C.  A 

In  1873  an  association  of  more  than  twenty 
persons  was  formed  for  the  object,  as  stated  in 
its  deed  of  settlement,  of  purchasing  a  freehold 
estate  and  reselling  it  in  allotments  to  the  mem- 
bers of  the  association.  The  deed  was  executed 
by  all  the  members,  the  name  of  each,  the 
number  of  his  allotment,  the  total  amount  he 
was  to  pay,  and  the  amount  of  his  monthly  pay- 
ment to  be  made  in  respect  of  it,  being  specified 
in  a  schedule  to  the  deed.  The  property  was 
vested  in  trustees,  and  its  management  was 
vested  in  a  president,  vice-president,  treasurer, 
secretary,  and  a  committee.  The  deed  contained 
provisions  for  the  conveyance  to  the  members 
of  their  allotments  when  they  had  paid  up  the 
whole  amount  payable  in  respect  of  them,  and 
for  forfeiture  and  sale  of  the  allotments  of  de- 
faulting members.  Powers  were  given  to  the 
committee  to  make  roads,  drains,  &c,  on  the 
land,  and  powers  were  given  to  the  trustees  of 
borrowing  money  on  mortgage  with  the  consent 
of  a  general  meeting.  When  all  mortgages  had 
been  paid  off  and  all  the  allotments  had  been 
conveyed  the  society  was  to  come  to  an  end. 
The  society  was  not  registered  under  the  Com- 
pauies  Act,  1862  :— Held,  that  the  society  was 
not  an  association  formed  for  the  purpose  of 
carrying  on  any  business  that  had  for  its  object 
the  acquisition  of  gain,  and  was  not  made  illegal 
by  the  Companies  Act,  1862,  s.  4.  Cr (nether  t. 
Thorley  (32  W.  R.  330)  followed  ;  Wigfield  v. 
Potter  (45  L.  T.  612)  approved.    Siddall,  In  rs9 


858 


COMPANY— Formation,  Constitution,  and  Incorporation.  854 

of  joint-stock  companies  sent  notice  to  the  office 
of  the  company  as  required  by  s.  7  of  the  Com- 
panies Act,  1880,  bat  by  an  accident  the  notice 
could  not  be  delivered  and  it  was  returned.  In 
April,  1887,  he  struck  the  name  of  the  company 
off  the  register.  Nothing  appeared  to  have  been 
done  by  the  company  between  1883  andl888,  but 
on  petition  by  the  liquidator  to  have  the  name 
restored,  and  on  production  of  evidence  that 
some  debts  were  still  unpaid  as  also  some  calls, 
the  court  directed  the  company's  name  to  be 
restored  to  the  register.  Carpenter**  Patent 
Davit  Company,  In  re,  1  Meg.  26 — North,  J. 


»  Ch.  D.  1 ;  54  L.  J.,  Ch.  682  ;  52  L.  T.  114 ; 
33  W.  B.  609— C.  A. 

Unregistered  Loan  Sooiety  of  lesi  than 

Twenty  Members —  Subsequent  Increase  of 
mashers.] — An  unregistered  money  club,  which 
in  its  inception  comprises  less  than  twenty 
members,  becomes  an  illegal  association  within 
&  4  of  the  Companies  Act,  1862,  so  soon  as  it 
comprises  upwards  of  twenty  members.  Such  a 
society  is  none  the  less  within  the  mischief  of 
the  act  because  its  business  is  carried  on  and 
managed  by  a  committee  of  seven  members  as 
the  agents  of  the  society,  although  they  may 
hare  full  powers  as  to  management  and  may 
make  bye-laws.  Crowther  v.  Thorley  (32  W.  B. 
330)  distinguished.  Poppleton,  Ex  parte,  Thomas, 
1%  re,  14  Q.  B.  D.  379  ;  54  L.  J.,  Q.  B.  336  ;  51 
L.  T.  602 ;  33  W.  B.  583— Cave,  J. 

In  1881  seven  persons  formed  a  loan  society, 
tod  when  business  was  commenced  their  mem- 
bets  had  increased  to  twenty.  In  June,  1883,  the 
society  was  registered  under  the  Companies  Act, 
1862,  with  the  knowledge  and  consent  of  all  the 
members.  In  1881  the  society  advanced  1002.  to 
a  borrowing  member,  repayable  by  monthly 
instalments,  and  he  duly  paid  the  instalments  as 
they  fell  due  until  December,  1883,  when  he 
became  bankrupt : — Held,  that  under  the  circum- 
stances the  inference  was,  that  all  the  members 
had,  either  expressly  or  by  acquiescence,  mutually 
agreed  that  all  the  transactions  of  the  society 
previous  to  its  registration  should  continue  to  be 
binding  on  the  registered  society ;  and,  conse- 
quently that  the  registered  society  could  prove 
for  the  balance  of  the  loan.    lb. 

Company  Valid  till  Registration  held  Void.]— 
T.  as  trustee  on  behalf  of  a  company  about  to 
be  formed%purchased  from  the  trustee,  in  liqui- 
dation of  H.'s  affairs,  the  business  carried  on  by 
the  latter ;  and  by  an  agreement  made  between 
T.t  H.,  and  the  trustee,  H.  agreed  with  T.,  both 
personally  and  on  behalf  of  the  proposed  com- 
pany, that  so  long  as  the  company  carried  on 
the  business,  H.  would  not  engage  in  any  similar 
badness  within  ten  miles  of  the  Exchange.  The 
company  subsequently  formed  was  alleged  to 
consist  only  of  T.  and  his  six  nominees.  While 
the  company  was  still  carrying  on  its  business, 
B.  became  an  employe  of  B.  &  Co.,  carrying  on 
a  similar  business  in  London  : — Held,  that  H. 
bad  broken  his  covenant,  and  that  a  company, 
duly  certified,  is  a  valid  company  under  the 
Companies  Act,  till  the  certificate  is  held  void. 
Hill  £  Co.  v.  Hill,  55  L.  T.  769  ;  35  W.  B.  137  ; 
SI  J.  P.  246— Kekewich,  J. 


Warn*  struek  off— Bestoration.]— The  power 
given  to  the  court  by  sub-s.  5  of  s.  7  of  the 
Companies  Act,  1880.  to  restore  to  the  register 
of  joint  stock  companies  the  name  of  a  company 
winch  has  been  struck  off  by  the  registrar  under 
the  provisions  of  that  section,  if  the  court  is 
''satisfied  that  the  company  was  at  time  of  the 
■triking  off  carrying  on  business  or  in  operation," 
applies  to  the  case  of  a  company  which  at  the 
tune  of  the  striking  off  was  carrying  on  business 
only  for  the  purpose  of  winding  up  voluntarily 
wd  realizing  its  assets.  Outlay  Assurance 
Smgty,  1%  re,  34  Ch.  D.  479 ;  56  L.  J.,  Ch.  448  ; 
«  L.  T.  477  ;  35  W.  B.  343— North,  J. 

The  winding-up  of  a  company  began  in  1880, 
tad  a  call  was  made  in  May,  1883.  The  registrar 


b.  List  of  Members  and  Summary. 

Forwarding  to  Begistrar— Power  of  Magis- 
trate to  Inquire  into  Accuracy.]— According  to 
the  true  construction  of  s.  26  of  the  Companies 
Act,  1862,  the  forwarding  to  the  registrar  of 
joint-stock  companies  of  a  list  of  members  and 
summary  which  upon  the  face  of  them  purport 
to  satisfy  the  requirements  of  the  act,  is  not  a 
sufficient  compliance  with  that  section  unless 
such  list  and  summary  are  in  accordance  with 
the  facts ;  and  a  metropolitan  police  magistrate 
has  jurisdiction  upon  a  summons  for  penalties 
under  s.  27  to  inquire  into  the  truth  or  falsehood 
of  the  statements  contained  in  the  list  and  sum- 
mary so  forwarded,  and  is  not  precluded  from 
hearing  evidence  on  the  complaint  brought  before 
him  merely  by  the  circumstance  that  the  list  and 
summary  are  in  accordance  with  the  company's 
register.  Briton  Medical  and  General  Life 
Association,  In  re,  39  Ch.  D.  61 ;  57  L.  J.,  Ch. 
874  ;  59  L.  T.  134  ;  37  W.  B.  62— Stirling,  J. 

Such  register  is  only  prima  facie  evidence  of 
certain  matters,  and  upon  evidence  that  it  con- 
tained fictitious  entries  the  magistrate  would  be 
justified  in  disregarding  such  entries,  and  in 
treating  a  summary  based  upon  them  as  false 
and  misleading.  But  questions  of  nicety  as  to 
the  title  to  shares  and  the  right  to  be  on  the 
register  cannot  properly  be  determined  by  a 
magistrate  upon  such  a  summons,  and  with 
reference  to  such  questions  he  ought  to  accept 
the  company's  register  as  practically  conclusive. 
Orosvenor  Bank  and  Discount  Company  v» 
Boaler  (49  J.  P.  774)  followed.    lb. 

The  G.  company  bought  the  business  of  another 
company,  taking  over  all  the  assets,  the  agree- 
ment stating  that  10,000  shares,  the  nominal 
capital  of  the  old  company,  were  to  be  treated 
as  paid  up.  In  the  return  to  the  registrar  the 
summary  stated  that  there  were  10,635  shares,  a 
call  of  10*.  made  on  each  share  ;  total  calls  paid 
4,48U. ;  calls  unpaid  836J.  On  a  summons  under 
25  &  26  Vict.  c.  89,  s.  27,  for  default  in  not  for- 
warding a  summary  : — Held,  that  the  company 
were  rightly  convicted,  though  the  misrepresenta- 
tion was  not  fraudulent,  as  the  return  was  mis- 
leading, and  purported  that  calls  had  been  made 
on  each  of  the  10,000  shares.  Qrotvenor  Bank 
v.  Boaler,  49  J.  P.  774— D. 


o.  Inspection  of  Begisten. 

Taking  Copies — Shareholder  Interested  bt 
Bival  Company.] — The  right  of  inspection  and 
perusal  of  the  register  of  debenture  stockholders,, 
which  by  s.  28  of  the  Companies  Clauses  Act, 
1863,  is  given  to  mortgagees,  bondholders,  deben- 

N 


855 


COMPANY — Promoters  and  Directors. 


866 


tare  stockholders,  shareholders,  and  stockholders 
of  the  company,  includes  a  right  to  take  copies. 
The  fact  that  a  person  has  taken  his  stock  in  a 
company  at  the  instance  of  a  rival  company,  and 
for  the  purpose  of  serving  the  interests  of  the 
rival  company,  does  not  disentitle  him  to  the 
assistance  of  the  court  in  enforcing  this  statutory 
right : — Forrest  v.  Manchester,  Sheffield  and 
Lincolnshire  Railway  (4  D.  F.  k  J.  126)  held 
not  to  apply,  inasmuch  as  that  case  proceeded 
on  the  ground  that  the  plaintiff  there  purported 
to  sue  on  behalf  of  himself  and  the  other  share- 
holders. Mutter  v.  Eastern  and  Midlands 
Railway,  38  Ch.  1).  92 ;  67  L.  J.,  Ch.  615 ;  59 
L.  T.  117  ;  36  W.  R.  401—0.  A. 

Grounds  for  Inspection — Injunction.] — The 
right  given  to  holders  of  stock  and  debentures 
by  the  Companies  Clauses  Act,  1845,  ss.  45,  63, 
and  by  the  Companies  Clauses  Act,  1863,  s.  28, 
of  inspecting  the  registers  of  a  company,  is  not 
confined  to  an  inspection  of  the  names  and 
addresses  only  of  the  holders  of  stock  and 
debentures,  may  be  exercised  without  assigning 
any  reason  for  requiring  inspection,  and  can 
be  enforced  by  an  injunction  restraining  inter- 
ference by  the  company  with  the  stockholder  in 
the  exercise  at  all  reasonable  times  of  his 
statutory  right,  without  his  being  compelled  to 
apply  for  a  mandamus  calling  upon  the  directors 
to  allow  inspection.  Holland  v.  Dickson,  or 
Crystal  Palace  Company,  37  Ch.  D.  669 ;  57 
L.  J.,  Ch.  502 ;  58  L.  T.  845  ;  36  W.  R.  320— 
Chitty,  J. 


II.    PROMOTERS  AKD    DIRECTORS. 
1.    PROMOTERS. 

Who  are — Solicitor.] — A  summons  was  taken 
out  by  the  liquidator  of  a  company  under  s.  165 
of  the  Companies  Act,  1862,  for  a  declaration 
that  the  solicitor  of  the  company  was  a  promoter, 
and  guilty  of  breach  of  trust  and  misfeasance  as 
such  promoter,  and  also  as  solicitor  of  the  com- 
pany ;  that  he  was,  therefore,  not  entitled  to 
payment  for  his  professional  services,  or  that  his 
bill  of  costs  might  be  taxed,  with  a  direction 
that  all  improper  charges  and  disbursements 
should  be  disallowed,  and  that  he  might  be 
ordered  to  repay  certain  sums  received  by  him. 
The  company  had  been  fraudulently  started,  and 
had  been  ordered  to  be  wound  up  : — Held,  that 
the  solicitor  waB  not  a  promoter,  and  that  there 
was  no  evidence  to  shew  that  he  had  been  guilty 
of  fraud  or  misfeasance  within  s.  165,  and  that 
he  was  entitled  to  his  costs  on  accounting  for  the 
sums  already  received  by  him.  Great  Wheal  Pol- 
gooth,  In  re,  53  L.  J.,  Ch.  42  ;  49  L.  T.  20 ;  32 
W.  R.  107  ;  47  J.  P.  710— V.-O.  B. 

Purchase  of  Mine  by  Syndicate— Resale 

to  Company— Rescission  impossible.] — On  the 
1st  of  February,  1873,  five  persons  (one  of  whom 
was  a  solicitor  and  conducted  the  negotiations) 
purchased  a  leasehold  mine  for  6,000/.  with  the 
view  of  reselling  it  to  a  company  to  be  formed ; 
but  they  had  at  that  time  taken  no  steps  to  form 
any  company.  They  completed  their  purchase 
on  the  17th  of  March,  1873,  the  purchase-money 
being  paid  out  of  their  own  moneys,  and  on  the 
4th  of  April  they  entered  into  a  provisional  con- 
tract with  a  trustee  for  an  intended  company  for 


the  sale  of  the  mine  to  the  company  for  18,0001. 
On  the  8th  of  April  the  company  was  registered 
under  the  Companies  Acts,  its  principal  object 
being,  as  stated  in  the  memorandum  of  associa- 
tion, the  purchase  of  the  mine,  and  in  its  articles 
the  contract  of   the  4th  of  April,  1873,  wis 
adopted  and  confirmed,  and  four  of  the  vendors 
were  named  as  directors  :  but  the  contract  of  the 
1st  of  February,  1873,  was  not  disclosed  to  the 
company.    The  whole  of  the  shares  were  placed 
by  the  vendors,  and  the  share  capital  (30,0002.) 
paid  by  them.    At  the  same  time  they  received 
18,0002.  from  the  company  as  the  purchase-money 
for  the  mine.    In  1882  the  company  was  wound 
up  voluntarily,  and  in  the  course  of  the  winding- 
up  the  facts  relating  to  the  purchase  of  the  mine 
by  the  vendors  became  known  to  the  company. 
In    1883   the  company  allowed  judgment  by 
default  to  go  against  them  in  an  action  by  the 
lessor  to  recover  possession  of  the  mine.    In 
1884   the    company   commenced    two   actions 
against  the  executors  of  three  deceased  vendors 
and  the  two  surviving  vendors  to  recover  the 
secret  profits  made  by  the  vendors  on  their  sale 
to  the  company,  on  the  ground  that  they  stood 
in  a  fiduciary  position  to  the  company : — Held, 
first,  that  the  evidence  did  not  prove  that  the 
vendors  when  they  purchased  the  mine  were 
promoters  of,  or  in  a  fiduciary  position  towards, 
the   company  which  was   ultimately  formed ; 
secondly,  that  assuming  that  the  vendors  com- 
mitted a  breach  of  duty  in  not  informing  the 
company  after  it  was  formed  that  the  mine  was 
their  own  property,  and  consequently  that  the 
company  might  have  rescinded  the  contract,  yet 
as  rescission  was  now  impossible  the  company 
could  not  recover  from  them  the  profit  which 
they  had  made.    Lady  well  Mining  Company  t. 
Brookes  or  Hnggons,  35  Ch.  D.  400  ;  56  L.  J., 
Ch.  681 ;  66  L.  T.  677  ;  35  W.  R.  785— C.  A. 

Secret  Commission— Agents  for  Vendor— Right 
to  Recover.] — Although  the  promoter  of  a  com- 
pany cannot  be  considered  an  agent  or  trustee 
for  the  company,  the  company  not  being  in 
existence  at  the  time,  yet  the  principles  of  the 
law  of  agency  and  trusteeship  are  applicable  to 
his  case,  and  he  is  accountable  for  all  moneys 
obtained  by  him  from  the  funds  of  the  company 
without  the  knowledge  of  the  company.  Iydney 
and  Wigpool  Iron  Ore  Co.  v.  Bird,  33  Ch.  D. 
86  ;  55  L.  J.,  Ch.  875  ;  65  L.  T.  558 ;  34  W.  B. 
749— C.  A. 

The  fact  that  a  promoter  is  acting  as  agent 
for  the  vendors  in  getting  up  a  company  for  the 

Eurchase  of  their  property  does  not  exonerate 
im  from  accounting  to  the  company,  when 
formed,  for  any  secret  profit  made  by  him.  In 
estimating  the  amount  of  the  secret  profit  for 
which  a  promoter  was  accountable  to  the  com- 
pany, he  was  held  entitled  to  be  allowed  the 
legitimate  expenses  incurred  by  him  in  forming 
and  bringing  out  the  company,  such  as  the 
reports  of  surveyors,  the  charges  of  solicitors  and 
brokers,  and  the  costs  of  advertisements ;  but  not 
a  sum  of  money  which  he  had  expended  in 
obtaining  from  another  person  a  guarantee  for 
the  taking  of  shares,    lb. 

Whether  Partner  liable  to  Bopay.]— J.. 


a  member  of  a  firm  of  iron-merchants,  was  a 
promoter  of  a  company  for  the  purchase  of  mines, 
and  was  held  accountable  for  a  secret  profit 
which  he  had  made  in  the  course  of  such  promo- 


857 


COMPANY — Promoters  and  Directors. 


858 


tion.  W.,  his  partner,  received  from  him  a  sum 
of  money  oat  of  the  profit  made  by  him  in  con- 
skkntion  of  his  guaranteeing  the  taking  of  cer- 
tain shares.  There  was  no  evidence  that  W. 
knew  of  the  profit  that  B.  made,  or  knew  that 
the  8am  received  by  him  came  out  of  the  moneys 
of  the  company  : — Held,  that  the  promotion  of 
companies  not  being  within  the  scope  of  the 
ptrtDenhip,  W.  was  not  accountable  for  the 
profits  made  by  J.,  or  for  the  money  received 
'  by  himself  as  the  consideration  for  the  guarantee, 
it. 

2.  DIRECTORS. 

a.  Appointment. 

subscribers  of  Memorandum  of  Association.]— 
The  articles  of  association  of  a  company  followed 
Table  A  of  the  Companies  Act,  1862  ;  clauses  52 
acd  53  of  that  table  being  to  the  effect  that  the 
somber  of  directors  shall  be  determined  by  the 
subscribers  of  the  memorandum  of  association, 
and  that  until  directors  are  appointed  the  sub- 
scribers of  the  memorandum  of  association  shall 
be  deemed  to  be  directors.  There  was  also  a 
special  article  that  the  number  of  directors  should 
not  be  less  than  three  nor  more  than  ten,  and 
that  two  should  form  a  quorum.  Directors  were 
appointed  at  a  meeting  attended  by  two  only  of 
the  subscribers  of  the  memorandum  of  associa- 
tion : — Held,  that  the  special  article  only  applied 
when  the  directors  had  been  duly  appointed,  and 
that,  the  directors  having  been  appointed  at  a 
meeting  consisting  of  a  minority  of  the  sub- 
scribers of  the  memorandum  of  association,  the 
appointment  was  invalid.  Howbeaeh  Coal  Com- 
jay  v.  league  (5  H.  k  N.  151)  held  not  to  have 
been  impugned  by  York  Tramway t  Company  v. 
Willows  (8  Q.  B.  D.  685).  London  and  South- 
er%  Counties  Freehold  Land  Company,  In  re,  31 
Ch.  D.  223 ;  55  L.  J.,  Ch.  224  ;  54  L.  T.  44  ;  34 
W.  R.  163— Chitty,  J. 


b.  Powers  and  Liabilities  Generally. 

Powers  as  to  Expenditure  of  Fundi — Costs  of 
Tmi— eoisfal  Petition  to  Wind  up.J— A  com- 
mittee of  directors  presented  a  petition  to  wind 
op  a  company,  which  was  dismissed  with  costs. 
They  then  passed  a  resolution  to  pay  the  costs  of 
the  petition  oat  of  the  assets  of  toe  company  : — 
Held,  that  petition  to  wind  up  the  company  was 
not u  a  legal  proceeding  on  behalf  of  the  company 
vithin  article  100  of  the  articles  of  association  of 
the  company,"  and  that  the  resolution  to  pay  the 
costs  of  the  petition  out  of  the  company  was 
oltoa  vires.  Smith  v.  Manchester  (Duke),  24  Ch. 
D.  «11  ;  53  L.  J.,  Ch.  96  ;  49  L.  T.  96  ;  32  W.  R. 
B-V.-C.  B. 

-—  Proxies  —  Stamping  for  Jlevenue  and 
Jtstago.] — The  funds  of  a  company  ought  not 
to  be  used  for  printing  or  sending  out  proxy- 
pspen  which  tend  in  any  way  to  influence  the 
votes  of  the  shareholders  receiving  them  (e.g., 
pay-papers  with  the  names  of  the  proposed 
proxies  therein),  or  for  stamping  or  paying  the 
tttarn  postage  on  proxy-papers  of  any  kind : — 
Stable,  it  is  within  the  powers  of  a  company  to 
pint  and  send  out  proper  proxy-papers — that  is, 
sieh  as  will  not  tend  to  influence  the  votes  of 
tie  shareholders.    Studdert  v.  Qrofcenor,  33  Ch. 


D.  528 ;  66  L.  J.,  Ch.  689  ;  55  L.  T.  171 ;  34  W. 
R.  754  ;  50  J.  P.  710— Kay,  J. 

Costs  of  Prosecutions  for  Libels  on  Direc- 
tors and  Company.] — The  cost  of  actions  for  libel 
affecting  the  private  characters  of  directors,  and 
only  incidentally  injuring  a  company,  ought  not 
to  be  paid  out  of  the  funds  of  the  company ;  but 
the  costs  of  proceedings  for  libel  directly  affect- 
ing the  company  may  be  rightly  paid  out  of  the 
company's  funds,     lb. 

Power  to  Lend  on  Security  of  Society's  own 
Shares.  1 — See  Orimwade  v.  Mutual  Society, 
post,  col.  360. 

Power  to  Transfer  Qualification  Shares.}— See 
South  London  Fish  Market  Company,  "In  re, 
post,  col.  411. 

Injunction  restraining  Exclusion  by  Co-direc- 
tors.]— An'  injunction  will  be  granted  in  an 
action  by  a  director  of  a  company  against  his  co- 
directors  to  restrain  them  from  excluding  him 
from  acting  as  director,  although,  in  the  opinion 
of  the  directors,  he  is  unfit  to  be  a  director  of 
the  company  by  reason  of  alleged  misconduct. 
Kyshe  v.  Alturas  Gold  Company,  36  W.  R.  496 
—North,  J. 

Directors  of  newspaper — Liability  for  Crim- 
inal libel.]— See  Defamation. 

Liability  for  Bills  accepted  ultra  vires.]— -A 
bill  of  exchange  payable  to  order  and  addressed 
to  the  8.  &  I.  Co.,  which  was  incorporated  under 
local  acts  and  had  no  power  to  accept  bills,  was 
accepted  by  the  defendants,  who  were  two  of  the 
directors  of  the  company,  and  also  by  the 
secretary,  as  follows: — "Accepted  for  and  on 
behalf  of  the  B.  &  I.  Co.,  G.  K.,  F.  S.  P.,  directors 
— B.  W.,  secretary. "  The  bill  was  so  accepted 
and  given  by  the  defendants  to  the  drawer,  the 
engineer  of  the  company,  on  account  of  the 
company's  debt  to  him  for  professional  services, 
and  although  he  was  told  by  the  defendants  that 
they  gave  him  the  bill  on  the  understanding  that 
he  should  not  negotiate  it,  but  merely  as  a 
recognition  of  the  company's  debt  to  him,  as  the 
company  had  no  power  to  accept  bills,  yet  the 
defendants  knew  that  he  would  get  it  discounted, 
and  they  meant  that  he  should  have  the  power 
of  doing  so.  The  bill  was  indorsed  by  the 
drawer  to  the  plaintiffs  for  value,  and  without 
notice  of  the  understanding  between  him  and  the 
defendants  : — Held,  that  the  defendants  were 
personally  liable,  as  by  their  acceptance  they 
represented  that  they  had  authority  to  accept  on 
behalf  of  the  company,  which  being  a  false 
representation  of  a  matter  of  fact  and  not  of 
law,  gave  a  cause  of  action  to  the  plaintiffs,  who 
had  acted  upon  it.  West  London  Commercial 
Bank  v.  Kitson,  13  Q.  B.  D.  360  ;  53  L.  J.,  Q.  B. 
345 ;  50  L.  T.  656  ;  32  W.  R.  757— C.  A. 
Affirming  47  J.  P.  824— D. 

Liability  for  Over-issue  of  Debentures.] — See 
post,  col.  373. 

Prosecution  of,  Petition  for.] — See  Denham,  In 
re,  post,  coL  442. 

Sale  by,  to  Company-— Ratification  at  General 
Xeeting— Vendor's  Right  to  Vote.]— Where  a 

N  2 


859 


COMPANY — Promoters  and  Directors. 


360 


voidable  contract,  fair  in  its  terms  and  within 
the  powers  of  the  company,  had  been  entered 
into  by  its  directors  with  one  of  their  number  as 
sole  vendor : —  Held,  that  such  vendor  was 
entitled  to  exercise  his  voting  power  as  a  share- 
holder in  general  meeting  to  ratify  such  con- 
tract ;  his  doing  so  could  not  be  deemed  oppres- 
sive by  reason  of  his  individually  possessing  a 
majority  of  votes,  acquired  in  a  manner  autho- 
rised by  the  constitution  of  the  company. 
North-  West  Transportation  Company  v.  Beatty, 
12  App.  Oas.  598 ;  56  L.  J.,  P.  C.  102  ;  57  L.  T. 
426  ;  36  W.  R.  647— P.  C. 


o.  Liability  for  Xlsfeaaanoe. 

Hon-disolosure  of  Director's  Interest  in  Pro- 
perty Sold.] — In  1871,  a  partnership,  consisting 
of  the  respondent  and  five  other  persons,  pur- 
chased certain  coal  areas  for  5,5002.  In  187$  a 
company  was  formed  for  the  purchase  of  these 
coal  areas  at  a  price,  as  fixed  in  the  articles  of 
association,  not  exceeding  42,000/.  —  that  is, 
12,000Z.  in  cash  and  30,0002.  in  shares.  The 
directors,  of  whom  the  respondent  was  one, 
effected  the  purchase  at  the  above  maximum 
price.  The  company  was  ordered  to  be  wound 
up  in  1875,  and  in  1878  the  coal  areas  were  sold 
with  other  property  for  14,5002.  The  appellant, 
a  contributory,  as  holder  of  paid-up  shares, 
applied  under  s.  165  of  the  Companies  Act,  1862, 
to  make  the  respondent  liable  for  misfeasance  or 
breach  of  trust,  on  the  ground  that  he  had  joined 
in  purchasing  the  coal  areas  for  the  company  at 
an  overvalue,  and  without  disclosing  his  interest 
to  the  other  directors  : — Held,  upon  the  evidence, 
that  it  had  not  been  proved  that  the  price  paid 
by  the  company  was  excessive,  nor  that  the 
respondent  had  concealed  his  interest ;  and  that 
the  onus  of  proof  lay  upon  the  appellant. 
Cavendish-Bentinck  v.  Fcnn,  12  App.  Cas.  652  ; 
67  L.  J.,  Ch.  552  ;  57  L.  T.  773  ;  36  W.  R.  641— 
H.  L.  (E.) 

Rescission  Impossible— Proceedings  by 

Contributory.] — Semble,  that  if  misfeasance  had 
been  made  out,  relief  could  have  been  obtained 
against  the  respondent,  notwithstanding  that 
rescission  of  the  purchase  by  the  company  had 
become  impossible,  and  that  proceedings  under 
s.  165  cannot  be  maintained  by  a  contributory 
who  has  no  pecuniary  interest  in  any  increase  to 
the  assets  of  the  company  which  may  result  from 
the  proceedings,    lb. 

Breaches   of  Trust— Indirect   Sanction.]— A 

director  of  a  company  from  the  time  that  he 
becomes  aware  of  breaches  of  trust  by  his  co- 
directors  incurs  liability,  even  though  he  did 
not  directly  sanction  them,  and  may  be  held 
personally  answerable  for  any  losses  sustained 
thereby,  if  he  remains  passive  and  omits  to  take 
proper  steps  to  prevent  such  misconduct,  and  to 
institute,  if  necessary,  proceedings  against  his 
colleagues  in  default.  Jackson  v.  Munster  Bank, 
15  L.  R.,  Ir.  356— V.-C. 

False  Balance-sheets.!— The  official  liquidator 
of  a  loan  society,  which  was  being  wound  up, 
moved  to  make  its  directors  and  officers  liable 
for  losses  arising  from  100  loan  transactions.  He 
submitted  (1 )  that,  as  they  had  advanced  large 
sums  by  way  of  loans  on  the  security  of  the 
society's  own  certificates,  they  had  acted  ultra 


vires,  because  by  the  memorandum  of  associa- 
tion, and  the  articles,  they  were  expressly  for- 
bidden to  accept  as  security  for  re-payment  of 
advances  "  personal  securities,  either  by  bonds, 
bills  of  exchange,  or  promissory  notes;"  (2) 
that,  if  this  were  intra  vires,  the  other  securities 
which  they  had  accepted  were  not  bona  fide  ones ; 
(3)  that,  if  their  loans  were  not  fraudulent,  they 
had  been  guilty  of  such  gross  negligence  and 
imprudence  as  to  make  them  liable ;  (4)  that 
they  had  concealed  the  true  state  of  the  affairs 
of  the  society  from  the  members  by  means  of 
false  balance-sheets  : — Held,  that  the  charges  of 
fraud  and  gross  negligence  had  not  been  bob- 
tained  ;  that  the  directors  could  in  no  sense  be 
held  responsible  for  the  faulty  basis  on  which 
the  society  had  been  formed,  or  for  the  errors  of 
the  actuaries  and  accountants ;  that  the  members 
had  been  cognisant  of  and  ratified  all  that  had 
been  done ;  that  the  society's  own  certificates 
were  not  such  personal  security  for  advances  as 
was  forbidden  by  the  articles,,  and  that  it  was 
not  ultra  vires  the  directors  to  advance  money 
on  such  security  (as  it  was  security  of  personal 
estate  as  distinguished  from  personal  security) ; 
and  that  the  motion  must  be  dismissed  with 
costs.  Orimxoade  v.  Mutual  Society,  52  L.  T. 
409— Chitty,  J. 


Acts  of  Co-Directors — Payment  of  Divi- 


dend ont  of  Capital— Constructive  Notice.]— An 
innocent  director  of  a  company  is  not  liable  for 
the  fraud  of  his  co-directors  in  issuing  to  the 
shareholders  false  and  fraudulent  reports  and 
balance-sheets,  if  the  books  and  accounts  of  the 
company  have  been  kept  and  audited  by  duly 
appointed  and  responsible  officers,  and  he  has  no 
ground  for  suspecting  fraud.  Consequently,  if 
such  a  director  has  received,  together  with  the 
other  shareholders,  dividends  declared  and  paid 
in  pursuance  of  such  reports  and  balance-sheets, 
such  dividends  having  been,  in  fact,  payments 
out  of  capital,  he  cannot  be  called  upon,  under 
8. 165  of  the  Companies  Act,  1862,  to  repay  the 
dividends  so  paid,  nor  even  the  dividends  received 
by  himself.  A  director  is  not  bound  to  examine 
entries  in  any  of  the  company's  books;  nor  is  the 
doctrine  of  constructive  notice  to  be  so  extended 
as  to  impute  to  him  a  knowledge  of  the  contents 
of  the  books.  Dcnham,  In  re,  25  Ch.  D.  752  \ 
50  L.  T.  523  ;  32  W.  R.  487— Chitty,  J. 

By  the  articles  of  the  plaintiff  company,  the 
directors  were  empowered  to  declare  a  dividend 
upon  such  estimates  of  account  as  they  might 
see  proper  to  recommend,  so  that  no  dividend 
should  be  payable  except  out  of  profits,  and 
they  were  required  annually  to  lay  before  the 
company  a  statement  of  the  income  and  ex- 
penditure of  the  past  year,  and  also  a  balance- 
sheet  containing  a  summary  of  the  property 
and  liabilities  of  the  company ;  and  it  was 
provided  that  the  auditor  should  make  a  report 
to  the  members  on  the  balance-sheet  and  ac- 
counts, stating  whether  in  his  opinion  the 
balance-sheet  was  a  full  and  fair  balance-sheet 
containing  the  particulars  required  by  the 
articles,  and  properly  drawn  so  as  to  exhibit  a 
true  view  of  the  state  of  the  company's  affairs. 
The  remuneration  of  the  directors  and  the  man- 
ager was  regulated  by  the  rate  of  dividend.  From 
its  commencement  in  1870  until  its  winding  up 
in  1882,  the  company  earned  no  profits  available 
for  dividend.  The  directors  annually  submitted 
to  the  company  a  balance-sheet  purporting  to 


861 


COMPANY — Promoters  and  Directors. 


862 


show  a  profit  on  the  faith  of  which  a  dividend 
ww  declared.    No  statement  of  income  and  ex- 
penditure was  ever  submitted  to  the  company. 
The  balance-sheets  were  prepared  by  the  man- 
ager, and  contained  false  items.    The  directors 
had  no  knowledge  that  the  balance-sheets  were 
false,  but  they  relied  exclusively  upon  the  state- 
ments of  the  manager.    In  auditing  the  accounts, 
the  auditor,  without  referring  to  the  articles, 
merely  certified  that  the  accounts  were  a  true 
copy  of  those  shown  in  the  books  of  the  com- 
pany.   The  balance-sheets  were  literally  copied 
from  balance-sheets  in  the  ledger  of  the  com- 
pany, bat  the  false  items  did  not  appear  else- 
where in  the   books  of  the  company  : — Held, 
following  Oxford  Building  Society,  In  re  (35 
Ch.  D.  502),  that  the  directors,  and  the  estate  of 
a  deceased  director,  were  jointly  and  severally 
liable  to  make  good  sums  improperly  paid  out  of 
capital  for  dividends,  for  directors'  fees  and  for 
bonuses  to  the  manager,  and  that  the  manager 
and  auditor  were  liable  for  damages  on  the  same 
footing.     Leeds  Estate  Building  Company  v. 
Shepherd,  36  Ch.  D.  787  ;  57  L.  J.,  Ch.  46  ;  67 
L.  T.  684  ;  36  W.  B.  322— Stirling,  J. 

lepaymant  of  Feet.]— It  was  provided  by  one 
of  the  articles  of  association  of  a  company  that 
the  directors  should  not  receive  any  remunera- 
tion for  their  services  in  any  year  until  the 
members  should  have  received  a  dividend  for 
that  year  of  5  per  cent,  on  the  amount  paid  on 
their  shares,  and  that  then  the  directors  should 
be  paid  for  that  year  such  sum  as  the  company 
should  in  general  meeting  determine.  The 
articles  also  provided  that  the  directors  should 
be  indemnified  out  of  the  funds  of  the  company 
all  expenses  incurred  by  them  as  directors.  The 
company  never  paid  any  dividend,  and  was  on 
the  17th  April,  1886,  ordered  to  be  wound  up. 
Before  the  order  for  winding-up,  at  a  general 
meeting  held  on  the  9th  Feb.,  1885,  at  which 
some  of  the  directors  were  present,  a  resolution 
was  passed  allotting  a  sum  of  1,000?.  to  the 
directors  for  their  services  for  the  year  ending 
the  31st  Bee.,  1884.  On  the  17th  Feb.,  1885, 
four  of  the  seven  directors  held  a  meeting  and 
pawed  a  resolution  dividing  the  1,0001.  among 
the  body  of  directors  in  certain  proportions. 
At  another  meeting  in  March  the  directors 
passed  a  resolution  sanctioning  certain  bills  for 
their  expenses  "  as  settled  by  the  resolution  of 
Feb.  17th.**  On  summons  by  the  official  liqui- 
dator asking  that  the  seven  directors  might  be 
held  jointly  and  severally  liable  to  refund  the 
1/tOOf.  and  for  an  order  of  payment : — Held, 
that  the  article  of  association,  saying  that  the 
directors  were  to  receive  no  remuneration  until 
a  dividend  had  been  paid,  bad  been  broken,  and 
the  directors  were  jointly  and  severally  liable  to 
repay  the  monev  with  interest  at  4  per  cent. 
WkiUkall  Court,  In  re,  56  L.  T.  280— Kay,  J. 
And  see  preceding  and  next  case. 

Payment  of  Dividends  out  of  Capital  — 
"BeaHsed  Froflta."]— The  articles  of  associa- 
tion of  a  limited  company  provided  that  no 
dividends  should  be  payable  except  out  of 
*  realised  profits/*  and  that  no  remuneration 
should  be  paid  to  the  directors  until  a  dividend 
«C  7  per  cent,  had  been  paid  to  the  shareholders. 
The  business  of  the  company  consisted  chiefly  in 
leading  money  to  builders  on  mortgages  pay- 
able by  instalments,  and  the  directors  treated,  as 


part  of  the  profits  available  for  dividends,  the 
value  for  the  time  being  (upon  an  estimate 
made  by  their  surveyor  who  was  also  their 
secretary)  of  the  instalments  of  principal  and 
interest  remaining  unpaid  by  each  mortgagor. 
Upon  this  footing  the  directors  paid  for  several 
years,  out  of  the  floating  capital  from  time  to 
time  in  their  hands,  (1)  dividends  of  7}  per 
cent,  and  upwards ;  (2)  remuneration  to  them- 
selves. Upon  a  summons  taken  out  in  the 
winding-up  of  the  company  by  a  creditor : — 
Held,  that  "  realised  profits  "  must  be  taken  in 
its  ordinary  commercial  sense  as  meaning  at 
least "  profits  tangible  for  the  purpose  of  divi- 
sion," and  that  the  directors  having  treated 
estimated  profits  as  realised  profits,  and  having 
in  fact  paid  dividends  out  of  capital,  on  the 
chance  that  sufficient  profits  might  be  made, 
were  jointly  and  severally  liable,  as  upon  a 
breach  of  trust,  to  repay,  and  must  repay,  the 
sums  improperly  paid  as  dividends,  and  also 
the  remuneration  they  had  respectively  re- 
ceived, with  interest  in  each  case  at  4  per  cent. 
Oxford  Benefit  Building  Society,  In  re,  35  Ch. 
D.  502  ;  56  L.  J.,  Ch.  98  ;  55  L.  T.  598  ;  35  W.  R. 
116 — Kay,  J.  See  Leeds  Estate  Building  Co, 
v.  Shepherd,  supra. 

Repayment  of  Commission.]  —  The  directors 
also,  without  the  knowledge  of  the  shareholders, 
voted  and  paid  themselves  out  of  the  funds  of 
the  company  a  commission  on  certain  purchases 
and  sales,  and  entered  such  payment  in  the 
books  of  the  company,  but  made  no  mention  of 
it  in  their  reports  or  balance-sheets :  —  Held, 
that  they  were  jointly  and  severally  liable  to 
repay,  and  must  repay  this  amount  with  interest 
at  5  per  cent.    lb, 

Payments  made  after  Commencement  of  Wind- 
ing-up—Course  of  Business.]— After  the  pre- 
sentation of  a  petition  for  the  winding-up  of  a 
company  on  the  ground  that  it  had  not  com- 
menced business  within  a  year  from  its  incor- 
poration, the  directors  issued  new  shares,  and 
made  payments  for  the  purpose  of  presenting 
the  appearance  of  business  being  carried  on. 
The  company  was  ordered  to  be  wound  up,  and 
in  the  winding-up  the  official  liquidator  applied 
for  payment  by  the  directors  of  all  moneys  of 
the  company  expended  by  them  since  the  pre- 
sentation of  the  petition  : — Held,  that  the  com- 
bined effect  of  88.  153  and  165  was  to  make 
the  directors  prima  facie  liable  for  all  moneys 
of  the  company  expended  by  them,  not  in  the 
ordinary  course  of  business  since  the  commence- 
ment of  the  winding-up,  and  that  an  account  of 
moneys  so  expended  must  be  taken.  Neath 
Harbour  Smelting  and  Boiling  Works,  In  re,  56 
L.  T.  727  ;  35  W.  R.  827— Chitty,  J. 

Approval  of  Transferee  of  Shares.] — Direc- 
tors permitted  a  transfer  of  19,528  shares  from 
a  substantial  holder  .to  P.,  a  director  and  share- 
holder of  the  company.  They  had  previously 
refused  to  allot  these  shares  to  him,  and  at  the 
time  of  the  transfer  they  had  notice  of  a  charge, 
an  injunction,  and  two  charging  orders  against 
other  shares  held  by  him.  They  alleged  that 
they  believed  that  he  was  again  in  possession  of 
considerable  funds,  and  that  they  examined  into 
the  matter  and  approved  him  as  transferee 
within  the  terms  of  their  articles,  which  pro- 
vided that  every  transferee  must  be  approved  by 
the  directors.    P.  subsequently  became  insolvent 


863 


COMPANY— Auditors. 


864 


and  all  his  shares  were  forfeited : — Held,  that 
directors  are  not  in  the  same  position  as  ordinary 
trustees;  that  the  directors  had,  in  fact,  approved 
P.  as  transferee ;  and  that,  even  if  they  had 
made  a  mistake,  they  could  not  be  made  per- 
sonally liable  for  the  consequences.  Faure 
Electric  Accumulator  Company,  In  re,  40  Ch.  D. 
141  ;  58  L.  J.,  Ch.  48  ;  59  L.  T.  918  ;  37  W,  R. 
116  ;  1  Meg.  99— Kay,  J. 

Repayment  of  Brokerage  for  placing  Capital.] 

— The  directors  paid  a  brokerage  of  2s.  6d.  per 
share  to  a  broker  for  placing  a  large  number  of 
shares.  The  allottee  was  a  substantial  person, 
and  paid  the  amount  then  called  up  on  the 
shares — nearly  40,000/. — to  the  company.  There 
was  no  evidence  that  he  received  any  part  of 
the  brokerage,  but  he  wrote  a  letter  to  the  direc- 
tors stipulating  that  it  should  be  paid  to  the 
broker.  The  articles  provided  for  payment  of 
preliminary  expenses,  and  the  memorandum 
authorised  things  conducive  to  the  attainment  of 
the  objects  of  the  company : — Held,  that  pay- 
ment of  brokerage  was  not  payment  for  work 
and  labour  done  ;  that  it  was  not  conducive  to 
the  objects  of  the  company ;  that  it  was  an  un- 
authorised use  of  capital  and  ultra  vires,  and 
that  the  directors  must  repay  it.    lb. 

Present  for  placing  Shares — Statute  of  Limita- 
tions.]— $.,  a  promoter,  and  subsequently  a 
director,  of  the  company,  made  an  arrangement 
with  the  syndicate  of  vendors  by  which  he  was 
to  receive  1,000  B  shares  in  the  company  in  con- 
sideration of  his  taking  or  placing  500  A  shares. 
He  subsequently  received  his  1,000  B  shares. 
Notice  of  this  transaction  was,  after  the  forma- 
tion of  the  company,  given  to  the  directors,  but 
the  board  which  received  the  notice  consisted  of 
persons  more  or  less  implicated  in  the  transac- 
tion, and  no  action  was  taken  in  the  matter. 
The  company  was  afterwards  wound  up,  and  the 
liquidator  took  out  a  summons  to  recover  from 
S.  the  value  of  1,000  B  shares,  on  the  ground 
that  his  having  received  them  was,  under  the 
circumstances,  a  misfeasance  as  against  the  com- 
pany. It  was  contended  that  he  was  barred  by 
the  Statute  of  Limitations  from  making  his 
claim,  the  company  having,  through  its  directors, 
received  notice  of  the  transaction  more  than  six 
years  previously: — Held,  that  S.  was  guilty  of 
a  misfeasance  against  the  company,  having  re- 
ceived the  B  shares  under  these  circumstances, 
and  that  he  must,  the  shares  being  now  value- 
less, pay  to  the  liquidator  the  amount  of  the 
value  of  the  shares  when  he  received  them,  but, 
as  no  dividend  had  ever  been  paid  on  the  shares, 
he  would  not  be  required  to  pay  any  interest ; 
that,  though  notice  to  the  directors  of  a  com- 
pany was  prima  facie  notice  to  the  company,  yet 
when,  as  in  this  case,  it  was  certain  that  the 
directors  would  not  communicate  the  information 
to  the  shareholders  it  was  not,  and  this  claim 
therefore  was  not  barred  by  the  Statute  of  Limi- 
tations. Fitzroy  Bessemer  Steel  Company,  In  re, 
50  L.  T.  144  ;  32  W.  R.  475— Kay,  J.  Com- 
promised on  appeal  33  W.  R.  312. 

Gift  of  Qualification  Shares.]— A  director  of  a 
company  received  from  the  promoters  a  present 
of  the  sum  of  1,000Z.  to  buy  100  shares  in  the  com- 
pany, which  was  the  qualification  of  a  director, 
the  present  being  expressed  to  be  given  as 
part  commission,  in  respect  of  certain  contracts 


he  was  about  to  enter  into  at  the  request  of  the 
promoters,  in  relation  to  the  proposed  company. 
The  director  afterwards  took  part  in  making  an 
agreement  for  the  purchase  by  the  company  of  a 
quarry  of  which  the  promoters  were  part  owners, 
the  carrying  out  of  which  was  stated  in  the 
memorandum  and  articles  of  association  of  the 
company  to  be  the  first  object  of  the  company. 
The  company  was  subsequently  wound  up : — 
Held,  that  the  director  was  liable  to  account  to 
the  liquidator  for  the  value  of  the  shares,  at  the 
value  at  which  they  stood  at  the  date  he  received 
the  present,  together  with  interest  at  5  per  cent 
from  the  date  of  such  gift.  Drum  Slate  Quarry 
Company,  In  re,  55  L.  J.,  Ch.  36  ;  53  L.  T.  250— 
Kay,  J. 

Practice  as  to.] — See  infra,  XI.,  5. 


III.    AUDITORS. 

Duty  of.] — It  is  the  duty  of  an  auditor  in 
auditing  the  accounts  of  a  company  to  inquire 
into  the  substantial  accuracy  of  the  balance- 
sheet,  to  ascertain  that  it  contains  the  particulars 
specified  in  the  articles  of  association  and  pro- 
perly represents  the  state  of  the  company's 
affairs,  and  he  is  liable  in  damages  for  the  breach 
of  such  duty.  Leeds  Estate  Building  Company 
v.  Shepherd,  36  Ch.  D.  787 ;  57  L.  J.,  Ch.  46 ; 
57  L.  T.  684  ;  86  W.  R.  322— Stirling,  J. 

Right  to  appoint  Accountant.] — An  auditor 
appointed  under  the  Companies  Clauses  Act, 
1845,  is  entitled  to  appoint  an  accountant  under 
s.  108  of  that  act,  without  the  consent  of  his  co- 
auditor.  Steele  v.  Sutton  Gas  Company,  12  Q.  R 
D.  68  ;  53  L.  J.,  Q.  B.  207 ;  49  L.  T.  682;  32 
W.  R.  289— D. 

Remuneration.]— Sect.  91  of  the  Companies 
Clauses  Act,  1845,  prevents  auditors  from  re- 
covering any  other  remuneration  than  that  fixed 
upon  at  a  general  meeting  of  the  company.  Paff 
v.  Eastern  and  Midlands  Railway,  1  C.  &  E. 
280— Grove,  J. 


IV.    BORROWING    POWERS,    MORTGAGE* 
AND  DEBENTTJRES. 

1.    BORROWING  POWERS. 

Hypothecation  of  Freight— Charge  on  Parti- 
oular  Asset.]— The  directors  of  a  shipping  com- 
pany passed  a  resolution  authorising  its  brokers 
to  hypothecate  the  freight  of  two  ships  during 
their  present  voyages,  to  secure  a  present  advance 
of  sums  not  exceeding  6,0O0Z.  Shortly  after- 
wards the  brokers  transferred  the  freight  of  one 
of  the  ships  to  H.  &  Co.  to  secure  an  advance  of 
3,000Z.  The  transfer  was  signed  by  the  brokers 
as  managers  of  the  company,  who  also  gave  *° 
undertaking  to  collect  the  freight  as  agents  to 
H.  &  Co.  An  action  having  been  brought  by 
the  debenture-holders  of  the  company  for  tne 
enforcement  of  their  securities,  and  the  company 
having  gone  into  liquidation,  H.  &  Co.  applies 
for  an  order  that  the  liquidator  of  the  company 
should  pay  to  the  applicants  out  of  J0011*^?^ 


8(6       COMPANY — Borrowing  Powers,  Mortgage*,  and  Debenture*.        866 


iwolntions  passed  pursuant  thereto,  notwith- 
standing the  debenture  debt,  to  specifically 
charge  a  particular  asset  for  the  purpose  of 
carrying  on  the  company's  business  ;  and  that, 
therefore,  H.  fc  Co.'s  security  was  prior  to  that 
of  the  debenture-holders.  Ward  v.  Royal  Ex- 
change Skipping  Company,  68  L.  T.  174 ;  6  Asp. 
M.  a  239— Chitty,  J. 

Statutory  Prohibition— Ultra  Tim.]— The  re- 
spondents were  constituted  a  company  by  an 
act  of  Geo.  2,  for  the  purpose  of  recovering  and 
preserving  the    navigation  of  the  River  Dee. 
This  act  was  amended  by  subsequent  acts,  but 
none  of  them  expressly  authorised  or  forbade 
the  company  to  borrow,  till  the  act  of  14  &  15 
Vict  c  ixxxvii.,  which,  by  s.  24,  empowered  the 
company  to  borrow  at  interest  for  the  purposes 
of  their  acts  upon  bond  or  mortgage  of  the  lands 
recovered  and  inclosed  by  them,  or  partly  upon 
bond,  and  partly  upon  such  mortgage,  a  sum  not 
exceeding  25,000/.,  and  also  a  further  sum,  not 
exceeding  25,000/.,  upon  mortgage  of  their  tolls, 
rites  and  duties  : — Held,  that  whether  the  earlier 
acts  gave  an  implied  power  to  borrow  or  not,  the 
company  was  prohibited  by  the  14  &  15  Vict.  c. 
Ixxxvii.  from  borrowing  except  in  accordance 
with  the   provisions   of   that    act.     Wonlook 
{Baroness)  v.  River  Dee  Company,  10  App.  Cas. 
3W ;  54  L.  J.,  Q.  B.  577  ;  63  L.  T.  62  ;  49  J.  P. 
773-H.  L.  (E.). 

By  Lord  Blackburn: — The  law  laid  down  by 
the  House  of  Lords  in  Ashbury  Company  v. 
Mieke  (7  L.  B.,  H.  L.  653)  applies  to  all  com- 
panies created  by  any  statute  for  a.  particu- 
lar purpose,  and  not  only  to  companies  created 
under  the  Companies  Act,  1862  (25  &  26  Vict,  c 
89).    Ik. 

Improvement  Loan— Charge  by  Inclosure 
.] — The  Lands  Improvement  Com- 
pany's Acts,  1853, 1855,  and  1859,  which  empower 
the  company  to  make  improvement  loans  to 
landowners,  including  corporations  holding  lands, 
to  be  secured  by  a  charge  on  the  fee  of  lands  to 
be  improved  under  the  hand  and  seal  of  the 
Inclosure  Commissioners,  do  not  enable  a  cor- 
poration, bound  by  a  prior  statutory  prohibition 
against  borrowing  on  land  beyond  a  certain 
limit,  to  exceed  the  limit  for  the  purpose  of 
effecting  improvements  on  their  lands.  Wenlock 
(Baronets)  v.  River  Dee  Company,  38  Ch.  D. 
5W ;  57  L.  J.,  Ch.  946  ;  59  L.  T.  485— C.  A. 

The  Act  of  1853  provided  that  the  execution 
by  the  commissioners  of  any  charge  in  pursuance 
of  the  Act  should  be  conclusive  evidence  of  such 
charge  having  been  duly  made  and  executed, 
and  being  a  valid  charge  under  the  Act : — Held, 
that  the  section  was  conclusive  as  to  the  observ- 
ance of  the  formalities  required  by  the  Act,  but 
was  not  conclusive  as  to  the  capacity  of  the  land- 
owner to  contract.    lb. 

Ifaity  of  Lander  to  Payment  out  of  Honey 
amoved  subject  to  Creditor's  Bights.]— The 
equitable  doctrine  by  which  the  lender  of  money 
borrowed  by  a  company  ultra  vires  is  entitled  to 
be  sobrogated  to  the  rights  of  creditors  of  the 
company  paid  oat  of  such  money,  and  to  recover 
fawn  the  company  the  amount  of  their  debts  or 
nabflrties  so  paid  off,  is  not  confined  to  the 
of  debts  and  liabilities  existing  at  the 


time  of  the  advance  and  so  paid  off,  but  extends 
to  debts  and  liabilities  accruing  subsequently  to 
and  paid  out  of  such  advance.  Blackburn 
Benefit  Building  Society  v.  Cunliffe,  Brooks  $ 
Co.  (22  Ch.  D.  61)  discussed.  Wenlock  (Baroness) 
v.  River  Dee  Company,  19  Q.  B.  D.  155 ;  56 
L.  J.,  Q.  B.  589 ;  57  L.  T.  320 ;  35  W.  B.  822 
— C.A. 

2.  M0BT6AGBS. 
a.  Validity. 

Amount  Sanctioned— Ultra  Vires.]— By  the 
memorandum  of  association  of  a  limited  com- 
pany the  company  were  empowered  to  borrow 
or  raise  money  by  the  issue  of  or  upon  bonds, 
debentures,  bills  of  exchange,  promissory  notes, 
or  other  obligations  or  securities  of  the  company, 
or  by  mortgage  or  charges  on  all  or  any  part  of 
the  property  of  the  company  or  its  unpaid 
capital,  or  in  such  manner  as  the  company 
should  think  fit.  By  a  clause  in  the  articles  of 
association,  it  was  provided  that  "  the  directors 
may,  from  time  to  time,  at  their  discretion, 
borrow  from  the  directors,  members,  or  other 
persons,  any  sum  or  sums  of  money  for  the  pur- 
poses of  the  company,  but  so  that  the  moneys  at 
one  time  owing  snail  not,  without  the  sanction 
of  a  general  meeting,  exceed  one-fifth  of  the 
nominal  amount  of  the  capital,  or,  with  such 
sanction,  one-third  of  such  nominal  amount/' 
The  directors  issued  debentures  to  the  amount  of 
3,050Z.,  of  which  A.  held  1,650Z.,  the  nominal 
capital  of  the  company  being  10,0002.,  and  mort- 
gaged to  A.,  for  moneys  advanced,  lands  and 
other  property  of  the  company  for  3,9502.,  and 
the  mortgage  was  sanctioned  at  a  general  meeting 
of  the  company  : — Held,  that  the  restriction 
in  the  clause  of  the  articles  of  association  was 
imposed  on  the  company  itself,  and  not  merely 
on  the  directors  ;  that  the  sanction  by  the  com- 
pany of  the  mortgage  was  ultra  vires,  and  the 
security  void  as  to  the  excess  over  one-third  of  the 
nominal  capital.  Banska  Woollen  Mills  Com- 
pany, In  re,  21  L.  B.,  Ir.  181— M.  B. 

Powers  of  Directors — Mortgage  of  Unpaid 
Capital.] — The  directors  of  a  company  were 
authorised  to  mortgage  all  or  any  part  of  the 
company's  "  properties  or  rights  "  : — Held,  that 
the  directors  had  power  to  mortgage  the  capital 
of  the  company  for  the  time  being  uncalled. 
Bank  of  South  Australia  v.  Abrahams  (6  L.  B., 
P.  C.  265)  distinguished.  Howard  v.  Patent 
Ivory  Manufacturing  Company,  38  Ch.  D. 
156 ;  57  L.  J.,  Ch.  878  ;  58  L.  T.  395  ;  36  W.  B. 
801— Kay,  J. 

b.  Xteffistration. 

Duty  and  Liability  of  Directors,  eto.] — 
Directors,  managers  and  other  persons,  standing 
in  a  fiduciary  relation  to  a  company,  holding 
securities  affecting  its  property,  are  bound  to  see 
that  their  securities  are  properly  registered,  as 
required  by  the  Companies  Act,  1862,  s.  43 ;  and 
if  they  knowingly  and  wilfully  omit  to  do  so, 
they  not  only  subject  themselves  to  the  penalty 
imposed  by  that  section,  but  they  forfeit  their 
unregistered  securities  as  against  the  general 
creditors  of  the  company.  Dublin  Drapery 
Company,  In  re,  Cox,  Ex  parte,  13  L.  B.,  Ir. 
174— M.  B. 


867        COMPANY — Borrowing  Powers,  Mortgages,  and  Debentures.       868 


Duty  of  Solicitors.] — Solicitors  of  a  company 
who  hid,  in  the  performance  of  their  duty,  pro- 
cured a  proper  register  to  be  made  out,  but  who 
had  no  power  or  authority  to  make  or  compel 
entries  in  it : — Held,  not  liable  to  the  personal 
equity  arising  from  the  non-registration  of  secu- 
rities in  their  hands.  Dublin  Drapery  Com- 
pany, In  re,  Cox,  Kx  parte,  supra. 

Director  and  Creditors— Omission  to  Register 
without  Concealment.]  —  Debentures  in  a  com- 
pany incorporated  under  the  Companies  Act, 
1862,  were  issued  to  a  director  of  the  company. 
They  were  not  registered  in  accordance  with  the 
requirements  of  s.  43  of  the  act  The  company 
haying  gone  into  liquidation  and  the  validity  of 
these  debentures  being  contested  by  unsecured 
creditors,  and  also  by  debenture-holders,  as  to 
whom  it  was  not  shown  that  they  had  made  any 
inquiry  as  to  the  charges  on  the  company's 
property  or  the  existence  of  a  register : — Held, 
that  the  mere  omission  to  register,  without  con- 
cealment, did  not  invalidate  the  debentures  ;  at 
all  events  as  between  the  director  and  such 
creditors.  The  rule  of  construction  laid  down 
by  Native  Iron  Ore  Company,  In  re  (2  Ch.  D. 
345),  and  the  decisions  prior  to  it,  disapproved. 
The  reasoning  of  Jessel,  M.  B.,  in  Globe  New 
Patent  Iron  and  Steel  Company,  In  re  (48  L.  J., 
Ch.  296),  approved.  Wright  v.  Morton,  12  App. 
Cas.  371  ;  66  L.  J.,  Ch.  873  ;  56  L.  T.  782  ;  36  W. 
R.  17  ;  52  J.  P.  179— H.  L.  (B.). 

Sufficiency  of  Registration  —  Assign- 
ment.]— In  1874  a  limited  company  mortgaged 
their  property  to  a  partnership  consisting  of 
three  persons,  of  whom  two  were  directors  of 
the  company.  The  mortgage  was  made  for  a 
term  of  seven  years.  It  was  not  registered  as 
required  by  s.  43  of  the  Companies  Act,  1862. 
In  1876  the  partner  who  was  not  a  director 
assigned  his  interest  in  the  mortgage  to  the  other 
two.  In  1881  it  was  arranged  that  the  mortgage 
should  be  continued  for  another  seven  years. 
The  directors  having  been  then  informed  that 
the  mortgage  ought  to  be  registered,  the  secre- 
tary entered  the  particulars  required  by  s.  43  on 
a  blank  page  in  the  company's  register  of  trans- 
fers, altering  the  headings  accordingly.  The 
book  in  which  the  entries  were  made  was  marked 
on  the  outside  "  Register  of  Transfers."  No 
other  mortgage  was  ever  made  by  the  company, 
and  the  secretary  deposed  that  no  one  had  ever 
inquired  for  the  register  of  mortgages.  The 
company  being  in  liquidation  : — Held,  that  there 
had  been  a  sufficient  registration  of  the  mort- 
gage in  compliance  with  s.  43,  and  that  the  mort- 
gagees were  entitled  to  enforce  their  mortgage  ; 
that  debts  contracted  by  the  company  during 
the  seven  years  between  the  execution  and  the 
registration  of  the  mortgage  were  not  entitled 
to  priority  over  the  mortgage  debt : — Held  also, 
that,  even  if  the  registration  was  ineffectual, 
inasmuch  as  one  of  the  original  mortgagees  was 
not  a  director  of  the  company,  the  mortgage  was 
not  invalidated,  and  that  it  remained  valid  in 
the  hands  of  the  two  directors  after  the  assign- 
ment to  them  of  the  interest  of  the  third  mort- 
gagee. Underbank  Mills  Cotton  Spinning  and 
Manufacturing  Company,  In  re,  31  Ch.  D.  226  ; 
55  L.  J.,  Ch.  265 ;  53  L.  T.  967  ;  34  W.  R.  181— 
Pearson,  J. 

Mortgage  not  created  by  Company— Equitable 


Charge.] — An  equitable  charge  over  certain 
leasehold  property  had  been  given  in  1879  to 
Whitehouse  by  Wills.  On  the  18th  March, 
1880,  Wills  formed  a  company,  of  which  White- 
house  acted  as  the  solicitor.  On  the  17th  March, 
1880,  Wills  agreed  to  sell  to  a  trustee  for  the 
company  the  property  in  question,  free  from 
incumbrances.  The  purchase-money,  if  paid, 
would  have  been  sufficient  to  have  paid  off  all 
the  then  incumbrances  in  full.  The  agreement 
was  adopted  by  the  company,  but  it  was  unable 
to  carry  out  the  same,  and  in  January,  1881, 
Wills  agreed  to  waive  his  vendor's  lien  until  the 
company  should  pay  a  certain  dividend.  Before 
it  was  able  to  do  so  it  had  been  wound  up.  No 
register  of  mortgages  had  ever  been  kept  t>y  the 
company.  Whitehouse  claimed  the  property  in 
question  under  his  equitable  charge.  It  was  now 
contended  by  the  official  liquidator  that  White- 
house  was  an  officer  of  the  company ;  that  by 
8.  43  of  the  Companies  Act,  1862,  the  equitable 
charge  "specifically  affected"  property  of  the 
company,  and  ought  to  have  been  registered; 
and  that  in  default  of  registration  it  was  void : 
— Held,  that  the  words  "if  any  property  is 
mortgaged,"  in  s.  43,  had  a  future  meaning,  and 
referred  to  any  mortgages  and  charges  created 
by  the  company  itself ;  that  the  equitable  charge 
in  question,  therefore,  did  not  require  registra- 
tion, and  was  a  valid  one  which  could  be  en- 
forced ;  and  that  the  contention  of  the  official 
liquidator  failed.  General  Horticultural  Com- 
pany,  In  re,  Whitehouse'*  Claim,  63  L.  T.  699— 
Chitty,  J. 

Transfer  of  Security.] — If  securities,  transfer- 
able by  delivery,  have  been  properly  registered 
in  the  names  of  the  persons  to  whom  they  were 
originally  issued,  subsequent  transfers  of  them 
need  not  be  registered  ;  and,  semble,  the  same 
rule  applies  to  all  securities,  whether  transfer- 
able by  delivery  or  otherwise.  Debentures  pay- 
able to  bearer  taken  in  trust  for  directors,  held, 
properly  registered  in  the  names  of  the  persons 
to  whom  they  were  issued.  Dublin  Drapery 
Co.,  In  re,  Cox%  Ex  parte,  supra. 

3.  DEBENTURES  AND   DEBENTURE 

STOCK. 

a.  What  are— Billa  of  Sale  Act. 

Description  of  Documents.] — A  debenture  may 
consist  of  one  document.  It  is  not  necessary 
that  there  should  be  a  serial  issue  of  docnments 
to  constitute  them  debentures.  Edmonds  v. 
Blaina  Furnaces  Company,  36  Ch.  D.  215 ;  66 
L.  J.,  Ch.  815  ;  57  L.  T.  139 ;  36  W.  R.  798- 
Chitty,  J. 

Any  document  which  either  creates  a  debt  or 
acknowledges  it,  is  a  "debenture."  Levy  v. 
Abereorris  Slate  Company,  infra. 

Whether  Registration  required.] — A  memo- 
randum of  agreement  between  a  company  of  the 
one  part  and  the  several  persons  named  in  the 
schedule  thereto,  called  the  lenders,  of  the  other 
part,  whereby  the  company  covenanted  to  pay, 
on  a  day  named,  to  each  of  the  lenders  (nine  in 
number)  the  sum  advanced  by  him,  with  in- 
terest, and  as  security  for  the  payment  thereof 
charged  therewith  all  its  undertaking,  property, 
estate  and  effects  of  every  kind  : — Held,  to  be  a 
debenture  in  the  ordinary  acceptation  of  the 


869       COMPANY — Borrowing  Powers,  Mortgages,  and  Debentures.        870 

260  ;  57  L.  J.,  Ch.  202  ;  58  L.  T.  218  ;  36  W.  R. 
411— Chitty,  J. 


term,  and  within  b.  17  of  the  Bills  of  Sale  Act, 
1&&  Edmonds  v.  Blaina  Furnaces  Company, 
sapra. 

A  limited  company  issued  twenty  debenture 
bonds  payable  to  bearer,  each  of  which  con- 
flsted  of  a  statement  that  the  company  would 
pay  lOUi.  on  a  certain  day,  and  that  the  pay- 
ment of  the  said  money  was  secured  by  an 
indenture  of  mortgage  made  between  the  com- 
pany and  certain  trustees  for  the  benefit  of  the 
debenture-holders.  Neither  the  debenture  bonds 
nor  the  covering  deed  were  registered  under  the 
Bills  of  Sale  Act,  1882.  All  the  debenture  bonds 
came  into  the  possession  of  the  claimant : — 
Held,  on  a  sheriff's  interpleader  summons,  that 
the  claimant  was  not  entitled  to  defeat  the 
claim  of  an  execution  creditor  to  the  goods  of 
the  company.  Jenkinson  v.  Brandley  Mining 
tympany,  19  Q.  B.  D.  568  ;  35  W.  B.  834—  D. 
Sed  quaere. 

A  brick-making  company  deposited  their  title- 
deeds  to  certain  beds  of  coal  and  fire-clay  with 
their  bankers,  together  with  a  memorandum 
which  stated  that  the  deposit  was  made  to 
secure  to  the  bankers  "  payment  of  all  sums  of 
money  which  we  are  now,  or  at  any  time  here- 
after may  be  indebted  to  you,  whether  on 
current  account  for  principal,  interest,  com- 
mission and  charges,  or  on  any  other  account 
whatsoever.  And,  in  consideration  of  the 
advances  now  made  to  us,  and  of  our  account 
being  continued,  we  undertake  to  execute,  when 
thereunto  requested,  a  proper  mortgage,  with 
immediate  power  of  sale,  or  such  further  security 
a*  may  be  necessary  for  the  purpose  of  effectually 
transferring  to  any  person  or  persons  whom  you 
may  designate  for  that  purpose,  the  legal  estate 
in  the  property  to  which  this  security  relates.1' 
The  memorandum  did  not  contain  any  acknow- 
ledgment of  any  specific  debt,  nor  any  covenant 
or  agreement  by  the  company  for  payment, 
except  so  far  as  the  same  was  implied  in  the 
agreement  to  execute  a  legal  mortgage  of  the 
property.  The  company  were  not  the  owners  of 
the  surface  of  the  land  under  which  the  beds  of 
coal  and  fire-clay  lay,  but  they  had  the  right  to 
use  the  surface  for  the  purpose  of  working  the 
minerals,  and  they  had  erected  on  the  surface 
certain  trade  machinery  of  the  kind  excluded  by 
sect  6 : — Semble,  that  the  memorandum  was  not 
a u debenture"  within  the  meaning  of  sect.  17 
of  the  Bills  of  Sale  Act  of  1882.  Edmonds  v. 
Blaina  Furnaces  Company  (36  Ch.  D.  215) 
observed  upon.  Topham  v.  Qre&nside  Glazed 
Fire-Brisk  Company,  37  Ch.  D.  281 ;  57  L.  J., 
Ch.  583 :  58  L.  T.  274  ;  36  W.  B.  464— North,  J. 

An  agreement  between  a  company  of  the  one 
part  and  a  lender  of  the  other  part,  whereby  the 
company  agreed  to  pay  the  lender  the  sum  of 
€00/.  with  interest,  and  charged  certain  heredita- 
ments with  the  repayment  of  the  said  sum  of 
600/.  and  interest,  and  further  agreed  with  the 
lender  that  they  would  at  any  time  during  the 
continuance  of  the  security  at  the  request  of  the 
lender  execute  a  legal  mortgage,  and  further 
agreed  to  issue  debentures  of  the  company  to  the 
extent  of  6002.  secured  over  all  the  capital  stock, 
goods,  chattels,  and  effects  of  the  company, 
including  uncalled  capital,  both  present  and 
future : — Held,  to  be  in  effect  a  debenture,  and 
within  the  saving  of  s.  17  of  the  Bills  of  Sale 
Act,  1882.  Edmonds  v.  Blaina  Furnaces  Com- 
sway  (36  Ch.  D.  216)  followed  and  discussed. 
Ltty  v.  Abereorris  Slate  Company,  37  Ch.  D. 


Secured  on  Goods  of  Company — "  Cover- 
ing Deed."] — Debentures  were  issued  by  a  com- 
pany under  its  common  seal  with  a  condition 
annexed  that  the  holders  of  debenture  bonds  of 
that  issue  were  entitled  pari  passu    "to  the 
benefit  of  an  indenture  dated  the  24th  of  No- 
vember, 1883,  whereby — subject  to  a  sum  of 
I.  and  interest  secured  on  mortgage — the 
freehold  buildings  and  premises  of  the  company 
and  all  the  machinery,  fittings,  fixtures,  and 
furniture  of  the  company  in  and  about  the  said 
premises,  and    any  other   machinery,  fittings, 
fixtures  and  furniture  that  may  be  substituted 
therefor  during  the  continuance  of  the  security 
effected  by  the  said  indenture  are  expressed  to 
be  vested  in  trustees  to  secure  the  payment  of 
all  moneys  payable  on  such  debenture  bonds." 
The  "covering  deed"  of  November.  1883,  pur- 
ported to  be  a  conveyance  and  assignment  of  the 
hereditaments,  fixtures  and  chattels  in  terms 
rather  larger  than  those  used  in  the  condition  ; 
the  future  chattels  being  not  only  those  substi- 
tuted for  existing  chattels,  but  also  any  brought 
upon  the  premises  in  addition  thereto.    This 
deed  was  not  registered  under  the  Bills  of  Sale 
Act,   1882.    Some  months  later  the  directors, 
in  consequence  of  the  decision  in  BrocUehurst 
v.  Railway  Printing  and  Publishing  Company 
(W.  N.  1884,  p.  70),  caused  a  new  debenture  to 
be  issued,  which  was  stated  to  be  supplemental 
to  the  original  bond  of  the  holder  to  whom  it 
was  given,  and  purported  to  charge,  in  favour  of 
the  holder,  the  amount  due  on  the  debenture 
upon  "  the  undertaking  (of  the  company)  and 
all  its  property,  both  real  and  personal,  present 
and  future,  subject  as  to  any  part  thereof  to  any 
subsisting  mortgages "  : — Held,  1.  That,  assum- 
ing the  covering  deed  to  be  void  for  want  of 
registration  under  the  Bills  of  Sale  Acts,  the 
intention  to  give  the  debenture-holders  a  valid 
charge,  within  the  meaning  of  the  Bills  of  Sale 
Act,  1882,  8.  17,  on  the  property  comprised  in 
that  deed,  was  manifest  on    the  face  of  the 
debentures,  read  in  conjunction  with  the  an- 
nexed condition,  and  amounted  to  an  equitable 
contract  which  would  be  carried  into  effect  to 
give  a  charge  upon  all  the  property  of  the  com- 
pany ;  and,  accordingly,  that  the  chattels  in- 
tended to  be  charged  with  the  money  due  on  the 
original  debentures  were  subject  to  an  equitable 
charge  in  favour  of  the  holders  of  those  deben- 
tures :  and  2.  That  the  supplemental  debentures 
which  were  issued  as  part  of,  and  in  order  to 
cure  a  supposed  defect  in  the  original  issue,  did 
not  create  a  charge  upon  any  property  of  the 
company  which  was  not  comprised  in  the  ori- 
ginal debentures.     Ross  v.   Army  and  Navy 
Hotel  Company,  34  Ch.  D.  43  ;  55  L.  T.  472  ; 
35  W.  R.  40— C.  A.    Afl&rming  55  L.  J.,  Ch.  697 
— Kay.  J. 

b.  Validity  and  Effect  of. 

Charge  on  After-acquired  Property.] — A  com- 
pany may  charge  its  after-acquired  property,  if 
it  be  sufficiently  specified  in  the  contract  to 
charge  it,  and  the  rule  is  not  affected  by  s.  28, 
sub-s.  1,  of  the  Irish  Judicature  Act  (correspond- 
ing with  the  English  Judicature  Act,  1875,  s.  10). 
Debentures  issued  by  a  joint  stock  company 
charging  the  undertaking,  stock-in-trade,  land, 


871        COMPANY — Borrowing  Powers,  Mortgages,  and  Debentures.       872 


premises,  and  plant,  and  the  property  and  effects, 
present  and  future,  of  the  company  :— Held,  to 
charge  the  after-acquired  stock-in-trade  and 
other  property  of  the  company  in  priority  to  its 
general  creditors.  Dublin  Drapery  Company, 
In  re,  Cow,  Ex  parte,  ante,  col.  366. 

Whether  other  Debenture-holders  estopped 
from  denying  Validity.J—  See  Mowatt  v.  Castle 
Steel  and  Iron  Works  Company,  infra. 

Floating  Security— Power  to  deal  with  Pro- 
perty— 8ale.] — A  company,  which  carried  on 
the  business  of  ironmasters  and  manufacturers, 
issued  debentures  for  a  total  sum  of  500,0002., 
by  which  they  charged  their  undertaking,  works, 
stock-in-trade,  plant,  moneys,  and  other  real  and 
personal  property,  both  present  and  future,  with 
the  payment  of  the  sums  secured  by  the  deben- 
tures *'  to  the  intent  that  the  same  charge  shall, 
until  default  in  payment  of  the  principal  or 
interest,  to  accrue  due  or  become  payable  in 
respect  of  the  said  sum  of  500,000Z.,  or  some  part 
thereof,  be  a  floating  security  upon  the  under- 
taking, works,  and  property  of  the  company,  not 
hindering  sales  or  leases  of,  or  other  dealings 
with,  any  of  the  property  or  assets  of  the  com- 
pany in  the  course  of  its  business  as  a  going 
concern."  The  company  afterwards  contracted 
to  sell  some  of  their  land  : — Held,  that  the  pur- 
chaser was  entitled  to  reasonable  evidence  that 
there  had  been  no  default  in  the  payment  of  the 
principal  or  interest  of  the  debentures.  Florence 
Land  and  Public  Works  Company,  In  re  (10 
Ch.  D.  530),  and  Colonial  Trusts  Corporation, 
In  re  (15  Ch.  D.  465),  distinguished.  Home  and 
Hellard,  In  re,  29  Ch.  D.  736  ;  54  L.  J.,  Ch.  919  ; 
53  L.  T.  562— Pearson,  J. 


c.  Priorities. 

Debenture  Stock— Mortgages— Bonds.]— S.  30 

of  the  Companies  Clauses  Act,  1863,  saves  the 
priority  of  mortgages  and  bonds  granted  before 
the  "  creation  "  of  debenture  stock.  Burry  Port 
and  Qwendreath  Valley  Railway,  In  re,  54  L.  J., 
Ch.  710  ;  52  L.  T.  842  ;  33  W.  R.  741— Kay,  J. 

A  railway  company,  having  unexhausted 
powers  of  borrowing,  obtained  a  special  act 
giving  them  further  powers  to  borrow  on  mort- 
gage, and  "  in  lieu  thereof  "  to  create  and  issue 
debenture  stock ;  and  provided  for  the  priority 
of  existing  mortgages  or  bonds.  The  company 
exercised  such  borrowing  powers  by  the  creation 
of  debenture  stock.  Subsequently  to  such  crea- 
tion the  company  alternately  issued  debenture 
stock  and  bonds.  The  income  was  insufficient 
to  pay  the  interest  on  the  debenture  stock  and 
bonds  : — Held,  that  the  special  act  in  effect  sub- 
stituted the  time  of  the  passing  of  that  act  for 
the  creation  of  the  debenture  stock  (the  time 
specified  in  s.  24  of  the  Companies  Clauses  Act, 
1863)  as  the  period  for  determining  in  what 
order  the  stock  was  to  rank,  and  also  that  the 
interest  on  all  mortgages  or  bonds  subsisting  at 
the  time  of  the  passing  of  the  special  act  had 
priority  over  the  interest  on  debenture  stock 
granted  by  virtue  of  that  act,  and  that  the  inte- 
rest on  bonds  granted  after  the  passing  of  that 
act  ranked  pari  passu  with  the  interest  on  the 
debenture  stock.    lb. 

The  directors  of  a  company  with  power  to 
borrow,  or  create  mortgages,  or  issue  debentures, 


issued  debentures  purporting  to  charge  the 
undertaking  and  the  hereditaments  and  effects 
of  the  company  with  the  payment  of  the  sums 
mentioned  in  the  debentures  respectively,  to  the 
intent  that  the  debentures  might  rank  equally 
as  a  first  charge  on  the  undertaking,  heredita- 
ments, and  effects  of  the  company.  They  after- 
wards, in  consideration  of  4,CHX)Z.  advanced  and 
applied  to  the  purposes  of  the  company,  deposited 
with  the  plaintiff  the  title-deeds  of  the  colliery 
the  property  of  the  company,  and  by  a  written 
agreement  charged  the  property  comprised  in 
the  deeds  with  the  payment  to  the  plaintiff  of 
4,0002.  and  interest :— Held,  that  the  mortgage 
to  the  plaintiff  had  priority  over  the  debentures. 
Wheatley  v.  Silkstone  and  Haigh  Moor  Cod 
Company,  29  Ch.  D.  715  ;  54  L.  J.,  Ch.  778  ;  62 
L.  T.  798 ;  38  W.  R.  797— North,  J. 

Hypothecation  of  Freight  —  Debenture- 
holders.] — See  Ward  v.  Royal  Exchange  Ship- 
ping Company,  ante,  col.  365. 


d.  Issue. 

Sealed  bnt  not  Delivered — Payable  to  Bearer.] 
— The  directors  of  a  company  directed  their 
secretary  to  make  arrangements  for  the  issue 
of  debentures,  for  payment  of  advances  to  the 
company.  The  debentures  were  accordingly 
prepared,  being  made  payable  to  bearer,  and 
sealed  and  stamped  ;  and  were  placed  in  a  box, 
the  key  of  which  was  kept  by  the  secretary. 
The  box  was  deposited  in  the  office  of  the  com- 
pany, which  was  also  the  office  of  T.,  one  of 
the  directors,  who  bad  made  large  advances  to 
the  company.  Some  of  the  debentures  were 
given  out  by  the  secretary  to  an  agent,  for  him 
to  issue  them  to  the  public,  which  he  did  not 
succeed  in  doing.  The  company  was  wound  up 
by  order  of  the  court.  After  the  commencement 
of  the  winding-up  the  agent  returned  the  deben- 
tures to  T.,  who  gave  some  of  them  to  R.  &  Co., 
his  own  creditors.  They  took  them,  believing 
that  they  had  been  regularly  issued,  and  that  T. 
had  power  to  dispose  of  them  : — Held,  that  the 
debentures  had  not  been  issued  before  the  com- 
mencement of  the  winding-up  : — Held,  also,  that 
the  other  debenture-holders  of  the  company  were 
not  estopped  from  disputing  the  validity  of  the 
debentures  held  by  R.  &  Co.  Whether  the  com- 
pany would  have  been  estopped,  quaere.  Mowatt 
v.  Castle  Steel  and  Iron  Works  Company,  34  Ch. 
D.  58  ;  55  L.  T.  645— C.  A. 

Over-issue— Warranty  of  Authority  by  Direc- 
tors— Measure  of  Damages.] — The  plaintiff  con- 
tracted to  make  a  railway,  and  did  work  far 
which  he  was  entitled  to  be  paid  in  cash.  The 
company  not  being  in  a  position  to  pay,  an 
agreement  was  made  during  the  progress  of  the 
works  by  which  the  plaintiff  agreed  to  accept 
debenture  stock  in  lieu  of  cash.  The  defen- 
dants, who  were  directors  of  the  company, 
thereupon  issued  to  the  plaintiff  certificates  for 
the  agreed  amount  of  debenture  stock,  such 
certificates  being  signed  by  two  of  the  defen- 
dants. At  that  time,  although  the  fact  was  not 
known  to  the  defendants)  all  the  debenture  stock 
which  the  company  were  entitled  to  issue  had 
been  issued,  and  consequently  that  which  the 
plaintiff  received  was  an  over-issue  and  valueless. 
The  company  subsequently  went  into  liquidation,. 


878       COMPANY — Borrowing  Powers,  Mortgages,  and  Debentures.        874 


but  valid  debenture  stock  retained  its  par  value. 
In  an  action  to  make  the  defendants  personally 
liable  for  the  amount  of  the  debenture  stock 
which  should  have  been  issued  to  the  plaintiff 
under  the  agreement: — Held,  that  the  defen- 
dants were  liable  on  their  implied  representation 
that  they  had  authority  to  issue  valid  debenture 
stock  which  would  be  a  good  security,  and  that 
under  the  circumstances  the  damages  were  the 
nominal  amount  of  the  stock  which  the  plaintiff 
ought  to  have  received  under  his  agreement. 
Firbank  v.  Humphreys,  18  Q.  B.   D.   54  ;    56 
L.  J.,  Q.  B.  57  ;  56  L.  T.  36 ;  36  W.  B.  92— 
C.A. 

The  M.  Docks  Company  we^e  empowered  by 
their  special  acts  to  issue  debenture  stock  to  a 
fixed  amount  Between  April,  1881  and  1883, 
various  transactions  took  place  between  the 
secretary  of  the  Docks  Company  and  the  London 
agents  of  the  plaintiffs,  in  respect  of  advances  by 
the  plaintiffs  to  the  company,  the  usual  arrange- 
ment being  that  the  plaintiffs  should  take  a  bill 
of  exchange  drawn  upon  the  company  by  the 
contractors  of  the  company,  and  also  certificates 
of  debenture  stock,  accompanied  by  a  letter 
from  the  secretary  to  the  effect  that  the  certifi- 
cates were  a  collateral  security.  The  advances 
were  renewed  from  time  to  time,  and  finally 
consolidated  by  an  agreement  of  the  20th  October, 
1882,  made  in  consideration  of  a  further  advance. 
Some  of  these  certificates  were  indorsed  by  G., 
one  of  the  directors  of  the  Docks  Company,  to 
the  effect  that  the  stock  represented  thereby  was 
within  the  statutory  limit.  In  January,  1883, 
it  came  to  the  knowledge  of  the  Docks  Company 
that  there  had  been  an  over-issue  of  debenture 
stock  since  January,  1881,  and  that  the  company 
was  insolvent.  A  special  act  was  obtained 
under  which  an  arbitrator  was  appointed  to  settle 
the  claims  arising  out  of  the  condition  of  the 
company.  Under  that  act,  certain  classes  of 
debenture  stock  were  authorised  to  be  issued. 
Stock  under  one  of  these  classes  was  awarded 
and  issued  to  the  plaintiffs  in  respect  of  their 
loan  and  interest.  The  stock  was  admitted  to  be 
worthless,  and  the  plaintiffs  brought  an  action 
for  damages  against  the  directors  and  the  secre- 
tary : — Held,  that  the  plaintiffs  advanced  their 
money  on  the  faith  of  the  warranty  contained 
in  the  indorsements  on  the  certificates  by  G., 
and  were,  therefore,  entitled  to  damages  against 
him.  Held,  also,  that  the  measure  of  such 
damages  was  the  difference  between  the  values 
of  the  certificates  as  delivered,  and  those  which 
ought  to  have  been  delivered,  which  in  this  case 
was  the  whole  amount  advanced  by  the  plaintiffs. 
Held,  further,  that  the  issue  of  debenture  stock 
oy  way  of  collateral  security  was  not  ultra  vires 
the  Companies  Clauses  Act,  1863,  s.  22.  White- 
few*  Joint  Stock  Banking  Company  v.  Reed. 
54  L.  T.  360-C.  A. 


a.  Biffhta  of  Holders. 

Beotrrcr  —  Company  Parting  with  Whole 
Vtdartakag.]  —  The  right  of  the  holder  of  a 
debenture  which  is  a  charge  on  the  undertaking 
of  a  company,  to  enforce  his  security,  attaches  if 
the  company  parts  with  the  whole,  or  substantially 
the  whole  of  its  undertaking  and  assets  otherwise 
ti*n  in  the  ordinary  course  of  business,  and 
onset  to  be  a  going  concern.  The  proper  remedy 
of  the  debenture-holder  in  such  a  case  is  by  the 


appointment  of  a  receiver  of  the  property  com- 
prised in  his  debenture.  Hubbuok  v.  Helmsf 
56  L.  J.,  Ch.  536  ;  56  L.  T.  232  ;  35  W.  R.  574— 
Stirling,  J. 

Where  in  such  a  case  the  debenture-holder, 
suing  on  behalf  of  himself  and  the  other 
debenture-holders,  merely  claimed  a  declaration 
that  the  transaction  was  void,  and  an  injunction 
to  restrain  the  person  who  had  affected  to  pur- 
chase the  undertaking  and  assets  from  dealing 
therewith,  the  court,  on  an  interlocutory  applica- 
tion for  an  injunction,  being  satisfied  that  under 
the  circumstances  no  injustice  would  be  thereby 
done,  gave  leave  to  amend  by  claiming  a  receiver 
and  the  realisation  of  the  security  of  the 
debenture-holders.  Injunction  granted  until  the 
trial  restraining  the  purchaser  from,  dealing 
with  the  property  comprised  in  the  assignment 
to  him  otherwise  than  in  the  ordinary  course 
of  the  business  carried  on  by  the  company,  or 
in  the  exercise  of  rights  previously  acquired  by 
him  as  mortgagee.    lb. 

Winding-up — Liquidator.] — A  motion 

for  a  receiver  in  an  action  by  a  debenture-holder 
came  on  for  hearing  on  the  same  day  as  a 
creditor's  winding-up  petition.  The  court  made 
the  winding-up  order,  but  declined  to  appoint  a 
receiver,  on  the  ground  that  the  appointment  of 
a  liquidator  would  be  a  sufficient  protection  to 
the  debenture-holders  : — Held,  on  appeal,  that 
the  debenture-holders  were  entitled  to  special 
protection,  and  the  official  liquidator  was  ap- 
pointed receiver.  Wilmott  v.  London  Celluloid 
Company,  52  L.  T.  642— C.  A. 

Judgment  Creditors.] — In  an  action  by  a 

debenture-holder  on  behalf  of  himself  and  the 
other  holders  of  an  issue  of  15,000Z.  debentures, 
the  court  declared  that  the  holders  of  that  issue 
were  entitled  to  stand  in  the  position  of  judg- 
ment creditors  for  15,000/.,  and  appointed'  a 
receiver  of  the  property  of  the  company  subject 
to  be  seized  by  a  judgment  creditor.  Hope  v. 
Croydon  and  Norwood  Tramways  Company,  34 
Ch.  D.  730  ;  56  L.  J.,  Ch.  760  ;  56  L.  T.  822  ;  35 
W.  B.  594— North,  J. 

Continuation  of  Receiver  and  Manager 

after  Judgment.] — Upon  default  being  made  by 
a  company  in  the  payment  of  interest  on  the 
debentures  issued  by  it  a  debenture-holder 
commenced  an  action  on  behalf  of  himself  and 
all  other  debenture-holders  against  the  company, 
for  the  enforcement  of  their  security,  and  for 
the  appointment  of  a  receiver  and  manager.  A 
receiver  and  manager  was  duly  appointed,  and, 
on  the  company  subsequently  going  into  volun- 
tary liquidation,  he  was  continued  as  liquidator. 
The  action  came  on  as  a  short  cause  upon  motion 
for  judgment.  The  minutes  provided  for  an 
account  to  be  taken  of  what  was  due  under  and 
by  virtue  of  the  plaintiff's  security,  and  for 
sale ;  also  for  the  continuation  of  the  receiver 
and  manager  until  further  order : — Held,  that 
the  minutes  ought  to  contain  a  provision,  not 
only  for  the  continuation  of  the  receiver  and 
manager,  but  also  for  his  discharge :— Held, 
therefore,  that  a  direction  should  be  inserted  in 
the  minutes  that  the  business  of  the  company 
was  not  to  be  carried  on  by  the  receiver  and 
manager  for  a  longer  period  than  six  months 
without  the  leave  of  the  judge  in  chambers ;  and 
that,  if  any  further  time  should  be  required,  an 


875 


COMPAN  Y— Capital. 


376 


application  for  farther  time  mast  be  made  before 
the  expiration  of  the  six  months.  Day  v.  Sykes, 
55  L.  T.  763— Chitty,  J. 

Bight  of  Debenture-holders  to  8urplus  Lands.] 
— See  Hull,  Barnsley  and  West  Riding  Rail- 
way, In  re,  post,  Railway. 

V.    CAPITAL. 

1.    PAYMENT  OF  DIVIDENDS  OUT  OF. 

Liability  of  Directors.]—^*?  cases,  ante,  cols. 
360,  361,  362. 

2.    REDUCTION  OF. 

a.  In  what  Cases. 

Resolutions  passed  at  same  Meeting  to  alter 
Artioles  and  reduce  Capital.] — A  company,  the 
regulations  of  which  did  not  authorise  a  reduc- 
tion of  capital,  passed  on  the  30th  of  October — 
(1)  A  resolution  inserting  in  the  articles  a  power 
to  reduce  its  capital ;  and  (2)  a  resolution  for 
reducing  the  capital.  Both  these  resolutions 
were  confirmed  at  a  meeting  on  the  16th  of 
November: — Held,  that  the  court  could  not 
confirm  the  resolution  for  the  reduction  of 
capital,  for  that  a  special  resolution  for  that 
purpose  could  not  be  passed  until  after  the  regu- 
lations of  the  company  had  been  altered  so  as  to 
make  them  authorise  a  reduction  of  capital. 
Patent  Invert  Sugar  Company,  In  re,  31  Ch.  D. 
166 ;  55  L.  J.,  Ch.  924 ;  53  L.  T.  698,  737 ;  34 
W.  R.  169— C.  A. 

Resolutions  for  Reduction  of.] — See  Taylor  v. 
PiUen  Electric  Light  Company,  post,  col.  406. 

Sanction   of  Court  —  General  Principles.] — 

Semble,  on  an  application  to  sanction  a  reduc- 
tion of  capital  the  judge,  though  satisfied  that 
the  rights  of  creditors  are  not  interfered  with  by 
the  reduction,  is  not  bound  to  sanction  it  if  he 
sees  that  it  would  work  unfairly  as  against  any 
shareholders  who  do  not  consent  to  it.  Banna- 
tyne  v.  Direct  Spanish  Telegraph  Co.,  infra. — 
Per  Cotton,  L.  J. 

The  power  given  to  the  court  by  s.  11  of  the 
Companies  Act,  1867,  to  confirm  a  resolution  to 
reduce  capital  is  a  discretionary  power — that  is 
to  say,  the  court  may  exercise  it  either  by  con- 
firming with  or  without  conditions,  or  by 
declining  to  confirm  on  a  full  consideration  of 
all  the  circumstances.  One  matter  to  be  taken 
into  account  is,  whether  the  proposed  scheme 
would  work  injustice  between  the  different 
classes  of  shareholders ;  if,  in  the  opinion  of  the 
court,  such  would  be  its  effect,  it  is  not  the 
function  of  the  court  to  impose  conditions 
amounting  to  an  alteration  of  the  scheme  ;  but 
the  proper  course  to  take,  if  such  an  alteration 
is  requisite,  is  simply  to  refuse  to  confirm  the 
resolution,  leaving  it  to  the  company  to  prepare 
a  new  scheme  if  they  should  think  fit  Direct 
Spanish  Telegraph  Company,  In  re,  34  Ch.  D. 
307 ;  56  L.  J.,  Ch.  353 ;  56  L.  T.  804 ;  35  W. 
R.  209— Kay,  J. 

Ordinary  and  Preference  Shareholders.] 

— The  capital  of  a  company  consisted  of  ordinary 
shares  of  102.  each,  part  issued  with  91.  per  share 
paid  up  and  the  remainder  unissued,  and  of  prefer- 
ence snares  of  10Z.  each,  all  fully  paid  up,  bearing 
a  fixed  preferential  dividend  of  10  per  cent,  per 


annum,  the  deficiency  in  any  year  to  be  made  up 
out  of  the  profits  of  the  next  or  subsequent 
years.  No  dividend  had  been  paid  on  the  ordi- 
nary shares,  and  there  were  some  preference 
dividends  in  arrear,  they  having  been  retained 
towards  replacing  the  company's  reserve  fund 
which  had  become  exhausted.  The  company 
having  lost  part  of  its  assets,  passed  a  special 
resolution  for  reducing  its  capital  by  a  corre- 
sponding amount  This  they  did  by  writing  off 
52.  per  share  from  the  amount  paid  up  on  each 
issued  share  and  51.  per  share  from  the  nominal 
amount  of  each  unissued  share ;  the  effect  of 
which,  it  appeared,  would  be  to  place  the  com- 
pany at  once  in  a  dividend-paying  condition, 
and  set  free  for  the  preference  shareholders  the 
preference  dividends  which  had  been  retained. 
The  resolution  was  passed  by  large  majorities  of 
both  classes  of  shareholders.  Upon  a  petition 
presented  by  the  company  under  the  Companies 
Acts,  1867  and  1877,  the  court  confirmed  the 
resolution  for  reduction.    lb. 

The  articles  of  a  submarine  telegraph  company, 
limited  by  shares,  and  formed  in  1872,  with  a 
capital  of  130,0002.  in  102.  shares,  gave  power  to 
increase  the  capital  by  the  issue  of  new  shares, 
with  power  to  give  preferential  rights  to  any 
shares  so  created.    It  was  provided  that  such 
new  capital  should  be  considered  part  of  the 
original  capital,  and  should  be  subject  to  the 
same  provisions,  except  so  far  as  the  resolutions 
authorising  the  raising  of  it  might  otherwise 
direct    The  articles  also  empowered  the  com- 
pany by  special  resolution  to  reduce  its  capital, 
and  alter  the  amount  and  denomination  of  its 
shares.    In  1874  a  special  resolution  was  passed 
for  raising  60,0002.  by  the  issue  of  6,000  shares  of 
102.  each,  which  were  to  be  paid  up  in  full  on 
allotment,  and  to  be  entitled  to  a  fixed  pre- 
ferential  dividend   of   102.   per   cent     These 
shares  were  all  taken  and  paid  up.     In  1884  one 
of  the  submarine  cables  of  the  company  broke 
down,  and  was  lost,  diminishing  the  assets  by 
about  one  half.    The  company  passed  a  special 
resolution  for  reducing  the  capital  to  one  half 
by  reducing  to  one  half  the  nominal  amount  of 
each   share,  ordinary  or  preferential.    A  pre- 
ferential shareholder  brought  an  action  on  behalf 
of   himself  and  the  other  preferential   share- 
holders to  restrain  the  company  from  acting 
on  that  resolution  and  from  applying  to  the 
court  to  sanction  it    Bacon,  V.  -C,  granted  an 
injunction,  being   of   opinion    that  what  was 
proposed  to  be  done  was  a  breach  of  the  com* 
pany's   contract  with    the  preferential   share- 
holders : — Held,  on  appeal,  that  the  preference 
shareholders  took  their  shares  subject  to  the 
provisions  of  the  articles  which    contained  a 
power  to  the  company  to  reduce  its  capital  and 
alter  the  amount  and  denomination  of  its  shares ; 
that  there  was  no  bargain  with  the  preference 
shareholders  that  they  should  receive  6,0002.  a 
year  on  the  whole  of  their  shares,  the  resolution 
being  satisfied  by  their  receiving  102.  per  cent 
on  the  nominal  amount  of  their  shares,  and  that 
what  was  proposed  to  be  done  was  no  breach  of 
the  contract  with  them.    Bannatyne  v.  Direct 
Spanish  Telegraph  Company,  34  Ch.  D.  287  ;  56 
L.  J.,  Ch.  107  ;  55  L.  T.  716  ;  35  W.  R.  125— C.  A 

If  what  it  was  proposed  to  do  had  been  a 
breach  of  the  contract  with  the  preference 
shareholders,  the  preference  shareholders  would 
have  had  a  right  to  prevent  the  company  from 
exercising  in  a  manner  inconsistent  with  the 


877 


COMPANY— Capital 


878 


contract,  the  powers  for  reduction  of  capital 
gifen  by  30  &  31  Vict.  c.  131,  and  40  &  41  Vict. 
c.26.    lb.    Per  Cotton,  LJ. 

The  articles  of  a  company  provided  that  by  a 
special  resolution  its  capital  might  be  increased 
by  the  creation  of  new  shares  which  should  have 
priority  in  respect  of  dividends  if  it  should  be 
deemed  expedient.    The  original  articles  con- 
tained no  power  to  reduce  capital.    In  1872  the 
company  issued  preference  shares  at  8  per  cent., 
and  in  1876  further  preference  shares  at  6  per 
cent ;  but  it  was  provided  that  the  holders  of 
all  preference  shares  should  have  no  power  of 
Toting.    In  1885  special  resolutions  were  passed 
giving  the  company  power  to  reduce  its  capital. 
After  this,   special    resolutions    reducing   the 
preference  shares  by  a  quarter  of  the  nominal 
nine  were  passed.   The  petition  for  confirmation 
of  the  proposed  reduction  was  opposed  by  the 
preference  shareholders  on  the  ground  that  the 
redaction  was  a  breach  of  contract,  and  was 
unfair,  but  the  majority  of  the  preference  share- 
holders assented  to  the  reduction : — Held,  that 
the  preference  shareholders  must  be  deemed  to 
hare  taken  their  shares  subject  to  the  power 
given  by  the  Companies  Act,  1867,  to  alter  the 
articles  and  reduce  the  capital ;  that  the  com- 
pany had  not  contracted  and  could  not  contract 
that  the    preference    shares   should   never  be 
rednced  ;  and  that,  though  the  court  had  a  dis- 
cretionary power  to  refuse  to  sanction  any  unfair 
reduction,  there  was  no  reason  for  refusal  in  the 
present  case.    Barrow  Hamatite    Steel   Com- 
p*uy,  I»  re,  39  Ch.  D.  682  ;  58  L.  J.,  Ch.  148  ; 
59  L.  T.  500 ;  37  W.  R.  249— North,  J. 

- —  Shares  issued  at  Discount.]— See  New 
Chile  Geld  Mining  Company,  In  re,  post,  col. 
384. 

Capital  partly  Eepaid.]— A  company  was 

incorporated  on  the  24th  March,  1864,  with  a 
nominal  capital  of  600,000/.  divided  into  30,000 
shares  of  202.  each.  The  whole  of  the  30,000 
shares  were  issued,  and  the  sum  of  142.  per  share 
was  paid  up  thereon.  By  special  resolution  duly 
passed  and  confirmed  at  extraordinary  general 
meetings  of  the  company,  duly  convened  and 
held  on  the  20th  December,  1887,  and  the  4th 
January,  1888,  respectively,  the  company  re- 
solved as  follows  :  "  That  in  respect  of  each  of 
the  shares  in  the  capital  of  the  company,  upon 
all  of  which  the  sum  of  142.  per  share  has  been 
pud  up,  capital  be  paid  off  or  returned  to  the 
otent  of  32.  per  share,  so  as  to  reduce  the 
capital  paid  upon  all  such  shares  to  the  sum  of 
Hi.  per  share  upon  the  footing  that  the  amount 
paid  off  or  returned  on  each  share,  or  any  part 
of  it,  may  be  called  up  again  in  the  same  manner 
as  if  it  had  never  been  paid."  The  nominal 
capital  of  the  company  was  not  altered  by  the 
proposed  reduction.  On  petition  that  the  reso- 
mtwn  might  be  confirmed  by  the  court : — Held, 
that  the  court  had  power  to  make  the  order. 
fart  Street  Warehouse  Company,  In  re,  59  L.  T. 
M4  ;  1  Meg.  67— Kay,  J. 

Writing  off—Unpaid  Calls.}— The  nominal 

capital  of  a  company  consisted  of  1,000,000/.  in 
20,000  shares  of  502.  each.  Only  6,044  shares 
«ere  issued— 1,359  as  preference  shares,  and  the 
remaining  4,685  as  ordinary  shares.  All  the  pre- 
ference shares  and  4,360  of  the  ordinary  shares 
fully  paid  up.    On  the   remaining   326 


ordinary  shares  only  382.  per  share  had  been 
called  up,  and  that  sum  had  been  paid  on  all  of 
these  shares  except  37,  on  which  only  302.  per 
share  had  been  paid.  Part  of  their  capital 
having  been  lost,  the  company  passed  a  reso- 
lution for  the  reduction  of  its  nominal  amount 
by  writing  of!  352.  from  each  preference  share 
and  382.  from  each  ordinary  share.  It  was  pro- 
posed to  state  in  the  minute,  which  was  to  be 
registered,  that  on  325  of  the  ordinary  shares 
{specified  by  their  numbers)  nothing  was  to  be 
deemed  to  have  been  paid  up,  all  the  other  issued 
shares  being  deemed  to  have  been  fully  paid  up. 
A  petition  was  presented  under  the  Companies 
Acts,  1867  and  1877,  to  obtain  the  sanction  of 
the  court  to  the  resolution,  the  petition  being 
supported  by  evidence  that  the  holders  of  the 
37  shares  on  which  the  82.  call  had  not  been 
paid  were  persons  of  no  means,  and  that  it 
would  be  impossible  to  recover  anything  from 
them : — Held,  that  the  order  should  be  made  as 
prayed,  but  without  prejudice  to  any  claim  which 
might  be  made  on  the  holders  of  the  37  shares  in 
respect  of  the  82.  call.  Great  Western  Steam- 
ship Company,  In  re,  56  L.  J.,  Ch.  3  ;  35  W.  R. 
154— North,  J. 

Company  Purchasing  its  own  8harea.] — See 
Trevor  v.  Whitworth,  post,  col.  384. 

b.  Petition  for. 

Advertisement— Before  list  settled.] — A  peti- 
tion to  reduce  the  capital  of  a  company,  where 
the  rights  of  creditors  are  not  affected,  may  be 
advertised  at  once,  without  waiting  until  a  list 
of  creditors  has  been  settled  by  the  chief  clerk. 
People's  Cafi  Company,  In  re,  55  L.  J.,  Ch.  312  \ 
34  W.  R.  229— Pearson,  J. 


Company  with  Humerou*  Agencies.] — In 


the  case  of  a  petition  for  reduction  of  capital 
presented  by  a  fire  insurance  company  having 
numerous  agencies  in  Ireland,  the  provinces,  and 
abroad,  the  court  directed  that  notice  of  the  pre- 
sentation of  the  petition  and  the  day  fixed  for 
hearing  should  oe  ^  inserted  not  only  in  the 
London  and  Dublin  'Gazettes,  but  also  in  news- 
papers circulated  in  each  of  ten  other  places  at 
which  the  company  had  agencies.  London  and 
Provincial  Fire  Insurance  Company,  In  re,  55 
L.  J.,  Ch.  630  ;  55  L.  T.  55— Chitty,  J. 


When  dispensed  with.] — On  petition  to 


confirm  a  resolution  for  reduction  of  capital  of  a 
company,  where  capital  had  been  lost,  and  it  had 
been  resolved  that  the  lost  capital  should  be 
wiped  off,  as  the  resolution  did  not  involve  either 
the  diminution  of  any  liability  in  respect  of 
unpaid  capital  or  the  payment  to  any  shareholder 
of  any  paid-up  capital,  and  it  was  not  necessary 
to  cite  any  creditors  : — Held,  that  the  preliminary 
advertisement  of  the  petition  might  be  dispensed 
with.  British  Land  and  Mortgage  Company  of 
America,  In  re,  53  L.  T.  763— V.-C.  B. 

In  cases  of  petitions  for  the  reduction  of  the 
capital  of  a  company  by  writing  off  paid-up 
capital  which  has  been  lost,  the  court  does  not, 
as  a  matter  of  course,  dispense  with  advertise- 
ment of  the  petition,  even  although  it  be  stated 
that  there  are  no  creditors.  E.  C.  Powder 
Co.,  In  re,  56  L.  J.,  Ch.  783 ;  56  L.  T.  610— 
Chitty,  J. 

Where  a  company  presented  a  petition  for  the 


879 


COMPANY— Capital. 


880 


reduction  of  capital  by  cancelling  lost  capital, 
and  notice  of  the  presentation  of  the  petition 
had  been  sent  to  each  shareholder  individually, 
and  the  only  creditor  of  the  company  was  the 
company's  solicitor,  the  court  declined  to  dis- 
pense with  the  usual  advertisement  between  the 
date  of  the  presentation  and  the  hearing  of  the 
petition.  Municipal  Trust  Company,  In  re,  55 
L.  T.  632  ;  35  W.  R.  120— Chitty,  J. 

Notice  of  the  presentation  of  a  petition  under 
the  Companies  Acts,  1867  and  1877,  for  the 
reduction  of  capital  must,  in  ordinary  cases,  be 
advertised  before  the  hearing.  Consolidated 
Telephone  Company,  In  re,  54  L.  J.,  Ch.  795  ;  52 
L.  T.  575  ;  33  W.  R.  408— Chitty,  J. 


Court  of  Appeal  not  interfering  with 


Order  of  Court  below.] — A  limited  company, 
whose  shares  were  all  fully  paid  up,  having  lost 
part  of  its  capital,  presented  a  petition  to  reduce' 
the  nominal  capital  by  the  amount  of  the  loss, 
reducing  the  nominal  amount  of  each  share  from 
11.  to  12*.  %d.  The  court  refused  to  hear  the 
petition  until  its  presentation  had  been  adver- 
tised as  prescribed  by  the  5th  rule  of  the  General 
Order  of  1868,  made  under  the  Companies  Act, 
1867  : — Held,  on  appeal,  that  a  petition  for  reduc- 
tion of  capital  authorized  by  the  Companies  Act, 
1877,  ought  prima  facie  to  be  advertised  as  di- 
rected by  the  General  Order  of  1868,  though  the 
judge  has  a  discretion  to  dispense  with  adver- 
tisements if  he  is  satisfied  that  the  interests  of 
creditors  cannot*be  affected  by  what  is  proposed, 
and  that  as  in  the  present  case  the  judge  in  his 
discretion  thought  that  the  petition  ought  to  be 
advertised,  the  Court  of  Appealwould  not  inter- 
fere. Tambracherry  Estates  Company,  In  re, 
29  Ch.  D.  683 ;  54  L.  J.,  Ch.  792 ;  52  L.  T.  712 
— C.A. 

Lift— Chief  Clerk's  Certificate.] — On  a  petition 
for  reduction  of  capital  by  cancelling  capital 
which  was  lost,  or  was  unrepresented  by  available 
assets,  the  court  dispensed  with  the  list  or  chief 
clerk's  certificate  of  creditors,  but  ordered  the 
petition  to  be  advertised  in  the  Form  No.  8.  to 
the  schedule  to  the  General  Order  of  March,  1868. 
London  and  County  Plate  Glass  Insurance  Co., 
In  re,  53  L.  T.  486— Kay,  J. 

Order  made  without  Referenoe  to  Chambers.]— 
A  limited  company,  which  had  issued  only  a 
small  portion  of  its  shares  on  which  nothing  had 
been  paid,  presented  a  petition  for  the  confirma- 
tion by  the  court  of  a  special  resolution  passed 
by  the  company  reducing  its  capital  from 
1,000,000/.  to  400,000Z.,  and  for  liberty  to  dis- 
pense with  the  words  "  and  reduced  "  as  part  of 
the  name  of  the  company.  No  prospectus  had 
been  issued.  There  was  only  one  creditor  of  the 
company,  and  he  consented  to  the  application. 
The  presentation  of  the  petition  had  been  adver- 
tised : — Held,  that  the  order  confirming  the 
reduction  might  be  made  at  once  without  any 
inquiry  at  chambers,  and  without  any  further 
advertisement ;  and  that  the  use  of  the  words 
41  and  reduced  "  might  be  dispensed  with  on  the 
production  of  an  affidavit  that  no  prospectus  had 
been  issued.  West  African  Telegraph  Company, 
In  re,  Vivian  A"  Company,  In  re,  55  L.  f.,  Ch. 
486  ;  54  L.  T.  384  ;  34  W.  R.  411— Pearson,  J. 

"And  reduoed"  dispensed  with.] — rending 
the  hearing  of  a  petition  about  to  be  presented 


to  obtain  the  sanction  of  the  court  to  a  resolution 
for  the  reduction  of  capital,  the  court  gave  the 
company  permission  to  dispense  with  the  words 
"and  reduced."  Riter  Plate  Fresh  Meat  Cm- 
pany,  In  re,  62  L.  T.  39  ;  33  W.  R.  319— V.-C.  B., 
and  see  preceding  case. 

Where  a  company  presented  a  petition  for  the 
reduction  of  capital  by  cancelling  lost  capital, 
and  notice  of  the  presentation  of  the  petition 
had  been  sent  to  each  shareholder  individually, 
and  the  only  creditor  of  the  company  was  the 
company's  solicitor,  the  court  declined  to  dis- 
pense with  the  use  of  the  words  "  and  reduced." 
Municipal  Trust  Company,  In  re,  55  L.  T.  632 ; 
36  W.  R.  120— Chitty,  J. 

Abandonment  of  Resolution.]— Where  a 

special  resolution  for  reduction  of  capital  has 
been  abandoned  before  its  confirmation  by  the 
court,  the  court  will  give  leave  to  discontinue 
forthwith  the  use  of  the  words  "  and  reduced " 
as  part  of  the  company's  name.  Mordey  $  Co,, 
In  re,  63  L.  T.  736— C.  A. 

Form  of  Minute.]— On  the  20th  February, 
1888,  a  petition  was  presented  by  a  company 
asking  the  court  to  confirm  a  special  resolution 
passed  on  the  25th  November,  1887,  and  con- 
firmed on  the  16th  December,  for  the  reduction 
of  capital.  On  the  21st  February,  1888,  on 
motion,  Kay,  J.,  being  satisfied  that  the  redac- 
tion of  capital  proposed  did  not  involve  any 
diminution  of  liability  in  respect  of  unpaid 
capital,  or  the  payment  to  any  shareholders  of 
any  paid-up  capital,  and  the  creditors,  therefore, 
not  being  entitled  to  object,  made  this  order: 
"  Let  the  petition  be  in  the  paper  for  hearing 
on  Saturday  week,  without  any  advertisement 
of  the  notice,  and  without  any  certificate  as  to 
creditors."  On  the  hearing  of  the  petition:— 
Held,  that  the  minute  proposed  to  be  registered 
should  have  on  the  face  of  it  the  amount  of  the 
original,  as  well  as  of  the  reduced  capital 
Order :  M  The  court,  not  requiring  notice  of  the 
day  appointed  for  hearing,  confirm  the  special 
resolution.  Liberty  to  discontinue  the  words 
'  and  reduced '  forthwith,  and  approve  of  the 
minute  in  the  copy  petition.  Advertise  as 
required  by  the  act,  in  the  London  Gazette,  the 
Times,  and  principal  Whitehaven  paper."  West 
Cumberland  Iron  and  Steel  Company,  In  re, 
58  L.  T.  152— -Kay,  J. 

VI.    SHABES  AND  STOCK. 

1.    SALE  ON  STOCK  EXCHANGE. 

Refusal  of  Company  to  register  Transfer— 
Aotion  to  recover  Price.] — A  contract  for  the 
sale  of  shares  in  a  registered  company  was  made 
through  brokers  upon  and  subject  to  the  rules 
of  the  Stock  Exchange.  In  accordance  with  the 
practice  of  the  Stock  Exchange,  the  transferee 
of  the  shares  paid  the  price  of  them  to  the 
vendor  upon  delivery  to  him  of  a  duly  executed 
transfer.  An  application  for  registration  of 
the  transfer  being  subsequently  made  to  the 
directors  of  the  company,  who  were  empowered 
by  the  articles  of  association  in  their  discretion 
to  decline  to  register  a  person  claiming  by 
transfer  of  shares,  they  refused  to  register  the 
transferee  as  a  member  of  the  company.  The 
transferee  thereupon  brought  an  action  to  recover 
back  the  price  of  the  shares  from  the  vendor  as 


881 


COMPANY— Shares  and  Stock. 


882 


money  had  and  received  to  his  use : — Held, 
following  Stray  v.  Russell  (1  £.  &  E.  888,  917), 
that  the  contract  for  the  sale  of  shares  on  the 
Stock  Exchange  did  not  import  an  undertaking 
br  the  render  that  the  company  would  register 
the  transferee,  and  that  the  action  was  not 
maintainable.  London  Founders  Association  v. 
CUrhe,  20  a  B.  D.  576  ;  57  L.  J.,  Q.  B.  291 ;  59 
L  I.  93;  36  W.  R.  489— C.  A. 

Eight!  and  Liabilities  of  Broker.]— See  Prin- 
cipal and  Agent. 

I.    APPLICATION  AND  ALLOTMENT. 

Urotaige  of  Shares — Executors — Personal 
Liability.]— Upon   the   amalgamation  in  1882 
between  the  S.  and  C.  banking  companies,  A., 
&  holder  of  100  shares  in  the  S.  Bank,  received  a 
areolar  asking  whether  he  would  exchange  his 
shares  in  the  6.  Bank  for  shares  in  the  C.  Bank, 
which  took  over  the  business  of  the  other.  A.  died 
shortly  afterwards  without  having  sent  any  reply 
to  the  circular.    On  the  27th  of  February,  1883, 
a  letter  was  sent  on  behalf  of  A.*s  executors  to 
the  C  Bank,  "  enclosing  certificate  for  100  shares 
of  the  8.  Bank  in  the  name  of  "  A.,  "  and  will 
thank  you  to  let  us  have  shares  in  your  bank  in 
exchange."  On  the  28th  of  February,  the  manager 
replied  that  when  probate  had  been  exhibited  to 
the  London  agents  of  the  bank  he  would  send 
share  certificates  in  the  bank  "  in  the  name  of 
the  executors  individually."    A  certificate  was 
made  out  to  the  executors  of  100  shares  in  the  C. 
Bank,  and  an  entry  made  in  the  share  register 
with  the  description  "  executors  of  A."    The 
executors  wrote  that  they  objected  to  have  the 
certificate  in  their  names,  and  requested  the 
bank  to  forward  them  one  in  the  name  of  A. 
The  directors  accordingly  ordered  the  certificate 
to  be  cancelled,  and  one  made  out  in  the  name  of 
A  for  100  shares.  On  summons  bv  the  liquidator 
lor  rectification  of  the  register  by  striking  out 
the  name  of  A.,  and  putting  in  place  of  it  the 
names  of  the  executors  as  holders  of  the  100 
shares :— Held,  that  the  letters  of  the  27th  and 
28th  of  February  constituted  by  application  and 
acceptance  a  completed  contract  between  the 
executors  and  the  bank  that  100  shares  should 
be  taken  in  the  names  of  the  executors  individu- 
ally, and  farther,  that  such  completed  contract 
was  not,  and  could  not  have  been,  afterwards 
rescinded  by  the  company,  and  that  therefore 
the  register  must  be  rectified.     Cheshire  Bank- 
«f  Company,  In  re,  Duff's  Executors'  ease,  32 
Ch.  D.  301  ;  54  L.  T.  558— C.  A. 

Afaliemtten  by  Agent— Measure  of  Damages.] 
—P.  authorized  his  agents  to  apply  for  shares  in 
company  A.,  bnt  by  mistake  they  applied  for 
•bares  in  company  B.,  the  names  of  the  two 
companies  being  very  similar.  The  shares  were 
duly  allotted  to  P.  Within  a  few  days  the  mis- 
take  was  discovered,  but  company  B.  refused  to 
cancel  the  allotment,  and  a  few  months  after- 
wards was  ordered  to  be  wound  up.  P.  having 
saccerded  in  removing  his  name  from  the  list  of 
contributories,  on  the  ground  that  he  had  never 
■Dthomed  his  agents  to  apply  for  shares  in  com- 
pany B.,  the  liquidator  claimed  damages  from 
the  agenta  for  their  breach  of  warranty.  It  was 
admitted  that  P.  could  have  paid  for  the  shares 
at  the  time  they  were  applied  for : — Held,  that 
the  measure  of  damages  was  the  full  nominal 


value  of  the  shares,  as  that  would  have  been 
what  they  would  have  obtained  from  P.  as  a 
solvent  contributory.  National  Coffee  Palace 
Company,  In  re,  Panmure,  Ex  parte,  24  Ch.  D. 
367  ;  53  L.  J.,  Ch.  57  ;  60  L.  T.  38  ;  32  W.  R.  236 
— CA. 

Allotment — Directors — Quorum  —  Improperly 
constituted  Board.] — B.  applied  for  and  was 
allotted  shares  in  a  company,  the  prospectus  of 
which  stated  that  there  were  three  directors, 
of  whom  F.  was  one.  The  articles  of  associa- 
tion of  the  company  provided  that  the  number 
of  directors  should  not  be  less  than  three,  nor 
more  than  seven  ;  and  three  names  (including 
that  of  F.)  were  given  as  the  first  directors. 
It  was  also  provided  that  two  directors  should 
form  a  quorum.  The  company  having  been 
subsequently  ordered  to  be  wound  up,  R.'s  name 
was  placed  on  the  list  of  contributories.  It 
came  to  R.'s  knowledge  that  F.  never  authorised 
his  name  to  be  used  as  a  director  of  the  company, 
nor  ever  acted  in  that  capacity.  Accordingly 
R.  objected  that  there  had  been  no  duly  con- 
stituted board  of  directors;  that  two  directors 
could  not  consider  themselves  a  quorum ;  and 
that  no  acta  by  them  were  valid.  He  there- 
fore claimed  that  the  allotment  to  him  of  shares 
was  void  ;  and  that  he  was  entitled  to  have  his 
name  removed  from  the  list  of  contributories, 
and  the  money  paid  by  him  refunded  : — Held, 
that  the  want  of  a  properly  constituted  board  of 
directors  when  the  shares  were  allotted  to  B. 
rendered  the  allotment  invalid ;  and  that  the 
defect  was  not  cured  by  the  provision  of  the 
company's  articles  of  association  that  two 
directors  might  form  a  quorum.  Held,  there- 
fore, that  R.'8  name  must  be  struck  off  the  list 
of  contributories.  British  Empire  Match  Com- 
pany, In  re,  Boss,  Ex  parte,  59  L.  T.  291 — 
Kay,  J. 

Application  was  invited  by  a  company  for 
106,000  preference  shares.  At  a  meeting  of  all 
the  directors,  five  in  number,  it  was  resolved  not 
to  allot  till  14,000  shares  were  applied  for  ;  at  a 
meeting  of  two  (a  quorum  of)  directors  held 
shortly  afterwards  it  was  resolved  that  the 
previous  resolution  was  cancelled,  and  that  the 
shares  then  applied  for,  about  3,000,  should  be 
allotted.  The  meeting  was  held  at  two  o'clock, 
on  a  few  hours'  notice  to  two  of  the  directors 
who  did  not  attend,  of  whom  one  did  not  receive 
his  notice  till  the  next  day,  and  the  other  gave 
notice  he  could  not  attend  till  three  ;  the  fifth 
director  was  abroad  and  no  notice  was  sent  to 
him : — Held,  that  the  allotments  made  under 
the  later  resolution  were  void  against  the  allot- 
tees. Homer  District  Consolidated  Gold  Mines, 
In  re,  Smith,  Ex  parte,  39  Ch.  D.  546  ;  58  L.  J., 
Ch.  134  ;  60  L.  T.  97— North,  J. 

See  also  post,  XI.,  15,  d. 

3.   T8SUE. 

Preference  Shares — Memorandum  of  Associa- 
tion— Articles  of  Association.]  —  A  company, 
with  power  by  its  memorandum  of  association 
to  increase  the  capital,  thereby  stated  to  be 
"  10,0002.  divided  into  1,000  shares  of  102.  each," 
and  with  power  by  the  contemporaneous  articles 
of  association  u  by  special  resolution  from 
time  to  time  to  increase  the  capital  of  the 
company  by  the  creation  of  new  shares  of  such 
an  amount  as  the  company  may  by  such  special 


1 


888 


COMPANY— Shares  and  Stock. 


384 


resolution  determine,  and  any  such  new  shares 
may  be  issued  either  with  or  without  special 
privileges  and  priorities  over  the  original  shares/' 
— having  gone  into  liquidation,  a  scheme  for  the 
reconstruction  of  the  company  was  proposed 
with  the  sanction  of  the  liquidator  ;  and  special 
resolutions  were  passed  and  confirmed  for  an  in- 
crease of  capital  by  the  creation  of  new  shares 
to  be  called  preference  shares,  giving  to  the 
holders  the  right  to  a  preferential  dividend  of 
5  per  cent : — Held,  that  the  proposed  scheme 
was  not  ultra  vires,  and  might  be  sanctioned  by 
the  court.  Harrison  v.  Mexican  Railway  Com- 
pany (19  L.  B.,  Eq.  358)  followed  ;  Hutton  v. 
Scarborough  Cliff  Hotel  Company  (2  Dr.  k  Sm. 
514)  ;  Guinness  v.  Land  Corporation  of  Ireland 
(22  Ch.  D.  349)  ;  and  Ashbury  v.  Watson  (30 
Ch.  D.  376),  distinguished.  South  Durham 
Brewery  Company,  In  re,  31  Ch.  D.  261  ;  55 
L.  J.,  Ch.  179  ;  53  L.  T.  928  ;  34  W.  B.  126— 
C.  A. 

The  memorandum  of  association  of  a  company 
provided  that  the  capital  of  the  company  should 
consist  of  500  1,000/.  shares.  Article  4  of  the 
articles  of  association  gave  power  to  create 
additional  share  capital,  which  might  be  issued 
as  preference  shares.  By  special  resolution 
under  a  power  in  the  articles  it  was  resolved 
that  the  500  1,0002.  shares  should  be  divided 
into  50,000  10/.  shares,  and  that  the  capital 
Bhould  be  increased  bv  the  creation  of  80,000 
new  10/.  shares.  The  company  by  special 
resolution  repealed  the  original  articles  and 
substituted  others,  one  of  which  was  to  the  same 
effect  as  the  original  article  4.  When  100,000 
10/.  ordinary  shares  had  been  issued,  the  com- 
pany resolved  that  the  balance  of  the  unissued 
capital,  namely,  300,000/.,  should  be  issued  as 
30,000  new  10/.  shares  with  a  preferential  divi- 
dend : — Held,  that  the  issue  of  such  preferential 
shares  by  the  directors  was  intra  vires.  Bridg- 
water Navigation  Company,  In  re,  39  Ch.  D.  1 ; 
67  L.  J.,  Ch.  809  ;  58  L.  T.  476  ;  36  W.  B.  769— 
North,  J. 

Issue  of  8hares  at  a  Discount.] — A  company 
limited  by  shares  under  the  act  of  1862  has  no 
power  to  issue  shares  at  a  discount  so  as  to 
render  the  shareholder  liable  for  a  smaller  sum 
than  that  fixed  for  the  value  of  the  shares  by 
the  memorandum  of  association  ;  and  such  issue 
will  be  invalid  although  the  contract  with  the 
shareholder  under  which  the  shares  were  issued 
has  been  registered  under  s.  25  of  the  Companies 
Act,  1867.  Plaskynaston  Tube  Company,  In  re 
(23  Ch.  D.  542),  and  Inee  Hall  Rolling  Mill* 
Company,  In  re  (23  Ch.  D.  505,  n.),  overruled. 
Almada  and  Tirito  Company,  In  re,  Allen's 
case,  38  Ch.  D.  415  ;  57  L.  J.,  Ch.  706  ;  59  L.  T. 
159  ;  36  W.  B.  593  ;  1  Meg.  28— C.  A.  S.  P. 
London  Celluloid  Company,  In  re,  39  Ch.  D. 
190— Kay,  J. 

The  liquidator  of  a  company  in  voluntary 
liquidation  entered  into  an  agreement,  under 
s.  161  of  the  Companies  Act,  1862,  for  the  sale 
of  its  property  to  a  new  company,  part  of  the 
consideration  being  the  issue  to  each  shareholder 
of  the  old  company  of  one  share  of  1/.  in  the 
new  company,  with  15*.  credited  as  paid  up 
thereon,  in  exchange  for  each  fully  paid-up 
share  of  1/.  in  the  old  company  held  by  such 
shareholder,  and  that  the  remaining  6s.  per 
share  should  be  payable  by  the  allottee  at  the 
times  mentioned  in  the  agreement    The  whole 


of  the  shares  in  the  new  company,  500,000  in 
number,  were  issued  to  the  shareholders  in  the 
old  company  in  the  manner  mentioned  in  the 
agreement.  Prior  to  their  issue  a  contract  pro- 
viding for  their  being  issued  in  that  way  was 
filed  with  the  registrar  of  joint-stock  companies, 
under  s.  ,25  of  the  Companies  Act,  1867.  The 
company  afterwards  increased  its  capital  by  the 
creation  of  500,000  more  shares  of  11.  each,  of 
which  50.000  were  issued  as  fully  paid  up  as  the 
consideration  for  the  purchase  of  other  property 
by  the  company,  ana  240,000  were  issued  at  a 
discount  of  16*.  per  share,  a  contract  being  in 
each  case  filed,  prior  to  the  issue,  with  the  regis- 
trar of  joint-stock  companies.  After  this  had 
been  done  the  company  passed  a  special  resolu- 
tion for  the  reduction  of  the  capital  by  can- 
celling paid-up  capital  to  the  extent  of  15*.  per 
share,  as  having  been  lost  or  being  unrepre- 
sented by  available  assets.  The  company  peti- 
tioned for  the  confirmation  of  the  resolution  by 
the  court.  There  was  no  evidence  of  any  loss  of 
capital  otherwise  than  by  reason  of  the  issue  of 
the  shares  at  a  discount :— Held,  that  the  issue 
of  the  shares  at  a  discount  was  illegal,  and  that 
the  shareholders  were  still  liable  to  the  extent 
of  15*.  per  share,  and  therefore,  that  the  pro- 
posed reduction  of  capital  could  not  be  con- 
firmed by  the  court  New  Chile  Gold  Mininf 
Company,  In  re,  38  Ch.  D.  475  ;  57  L.  J.,  Ch. 
1042  ;  59  L.  T.  506  ;  36  W.  B.  909— North,  J. 


4.  PBOVISIONS   IN    ABTtCLES    OF  ASSO- 
CIATION. 

Power  to  Issue  Preference  Shares,]— &* 
Cases,  supra. 

Power  of  Company  to  Purchase  its  ovi 
8harea.1 — A  limited  company  was  incorporated 
under  the  Joint  Stock  Companies  Acts  with  the 
objects  (as  stated  in  its  memorandum)  of  acquir- 
ing and  carrying  on  a  manufacturing  business 
and  any  other  businesses  and  transactions  which 
the  company  might  consider  to  be  in  any  way 
conducive  or  auxiliary  thereto  or  in  any  way 
connected  therewith.  The  articles  authorised 
the  company  to  purchase  its  own  shares.  The 
company  having  gone  into  liquidation  a  former 
shareholder  made  a  claim  against  the  company 
for  the  balance  of  the  price  of  his  shares  sold  by 
him  to  the  company  before  the  liquidation  and 
not  wholly  paid  for  : — Held,  that  such  a  com- 
pany  has  no  power  under  the  Companies  Acts  to 
purchase  its  own  shares,  that  the  purchase  was 
therefore  ultra  vires,  and  that  the  claim  most 
fail.  The  reasoning  of  the  Court  of  Appeal  in 
Dronficld  Silkstone  Coal  Company,  In  re  (17 
Ch.  D.  76),  disapproved.  Trevor  v.  WhUtooHh, 
12  App.  Cas.  409 ;  57  L.  J.,  Ch.  28  ;  67  L.  T.457 ; 
36  W.  B.  145— H.  L.  (B.). 

lien  of  Company  on  Shares — Deposit  of  Certi- 
ficate of  8hares— Notice  of  Trust.]— The  ar- 
ticles of  association  of  a  company  registered 
under  the  Companies  Act,  1862,  provided  that 
the  company  should  have  "  a  first  and  per* 
manent  lien  and  charge,  available  at  law  ana  in 
equity,  upon  every  share  for  all  debts  due  from 
the  holder  thereof."  A  shareholder  deposited 
his  share  certificates  with  a  bank  as  security  for 
the  balance  due  and  to  become  due  on  his 
current  account,  and  the  bank  gave  the  company 


885 


COMPANY— Shares  and  Stock. 


886 


notice  of  the  deposit.  The  certificates  stated 
that  the  shares  were  held  subject  to  the  articles 
of  association  : — Held,  that  the  company  could 
not  in  respect  of  moneys  which  became  due 
from  the  shareholder  to  the  company  after  notice 
of  the  deposit  with  tho  bank  claim  priority  over 
adrinces  by  the  bank  made  after  such  notice, 
bat  that  the  principle  of  Hopkinson  v.  Bolt  (9 
H.  L.  C.  514)  applied,  and  also,  that  the  notice 
to  the  company  of  the  deposit  with  the  bank 
was  not  a  notice  of  a  trust  within  the  meaning 
of  the  Comnanies  Act,  1862  (25  &,  26  Vict,  c  89), 
s.  30,  and  the  bank  by  giving  notice  of  the  de- 
posit did  not  seek  to  affect  the  company  with 
notice  of  a  trust,  but  only  to  affect  the  company 
in  their  capacity  as  traders  with  notice  of  the 
interest  of  the  bank.  Bradford  Banking  Com- 
pssy  v.  Briggs,  12  App.  Cas.  29  ;  56  L.  J.,  Ch. 
3«;  56  L.  T.  62  :  35  W.  R.  521— H.  L.  (E.). 

The  articles  of  association  of  a  limited  com- 
pany provided  that  the  company  should  have 
"a  first  and  paramount  lien  "  upon  the  shares  of 
every  member  for  his  debts,  liabilities,  and  en- 
gagements to  the  company.  A  shareholder  made 
an  equitable  mortgage  of  his  shares  in  favour  of 
the  plaintiff  as  security  for  an  advance,  and  the 
plaintiff  gave  the  company  notice  of  his  charge. 
After  the  date  of  the  notice  the  shareholder  gave 
a  written  guarantee  to  the  company  : — Held,  in 
accordance  with  Bradford  Banking  Company  v. 
Brifg$  (31  Ch.  D.  19,  in  C.  A.  reversed  in  H.  L), 
that,  supposing  the  guarantee  to  have  been  given 
for  valuable  consideration,  the  company  were  by 
Tirtue  of  their  articles  entitled  to  priority  for 
their  claims  over  the  charge  in  favour  of  the 
plaintiff.  Miles  v.  New  Zealand  Alford  Estate 
Company,  32  Ch.  D.  266  ;  55  L.  J.,  Ch.  801  ;  54 
L.  T.  582  ;  34  W.  R.  669— C.  A. 

fturnader   to  Company  of  8hares  held  by 

fcwtatt.] — The  articles  of  association  of  a 
company  provided  that  all  employes  of  the  com- 
pany other  than  the  managing  directors  should, 
on  the  termination  of  their  service,  surrender 
their  shares  to  the  company.  The  company  was 
now  being  wound  up,  and  a  cashier  who  was 
discharged  in  1882  applied  for  the  removal  of 
his  name  from  the  list  of  con  tributaries,  and  for 
repayment  to  him  of  the  value  as  in  1882  of  his 
shares,  and  for  indemnity  against  subsequent 
calls: — Held,  that  no  such  relief  could  be 
g»ntei  Walker  and  Hacking,  In  re,  57  L.  T. 
70-Stirling,  J. 

PWfiaioiifl  against  Alienation  by  Officer.] — 
A  provision  in  articles  of  association  that  fully 
paid-up  shares  issued  to  an  officer  of  the  company 
should  be  retained  by  him  and  not  dealt  with  by 
hhn  for  a  period  of  seven  years  : — Held,  to  be  a 
provision  for  the  protection  of  the  company,  and 
not  to  entitle  a  shareholder  to  invalidate  a  call 
node  at  a  meeting  of  directors,  at  which  a 
transferee  of  such  snares  was  necessarily  present 
to  form  a  quorum,  such  transfer  having  been 
made  by  the  consent  of  the  company  within  the 
wen  years.  London  and  Westminster  Supply 
Ameiation v.  Griffiths,  1C.&E.  15— Stephen,  J. 


5.  TRANSFER. 

fcttmy  of  Transfer  Deed  to  Sooretary.]— 
under  the  "provisions  of  the  Companies  Clauses 
Coawlidatkm  Act,  1845,  a  deed  of  transfer  of 


shares  or  stock  does  not  pass  the  legal  interest  to 
the  transferee  until  it  has  been  delivered  to  the 
secretary  of  the  company.  If  he  returns  it 
because  it  does  not  comply  with  the  requisitions 
of  the  act  it  is  to  be  considered  as  not  delivered 
to  him.  Nanney  v.  Morgan,  37  Ch.  D.  346  ;  57 
L.  J.,  Ch.  311 ;  58  L.  T.  238  ;  36  W.  R.  677— 
C.  A. 

Trustees  who  held  railway  stock  in  trust  for 
H.  B.  absolutely,  executed  a  deed  of  transfer  to 
him,  and  delivered  it  to  the  secretary  of  the 
company,  who  returned  it  because  it  was  not 
properly  stamped  and  dated.  After  this  H.  B. 
made  a  voluntary  settlement  purporting  to  in- 
clude this  stock.  Several  years  afterwards  the 
defects  in  the  deed  of  transfer  were  supplied, 
and  it  was  delivered  to  the  secretary,  who  re- 
ceived it  and  registered  the  stock  in  H.  B.'s 
name  : — Held,  that  at  the  time  of  the  execution 
of  the  voluntary  settlement  the  stock  was  not 
legally  vested  in  H.  B.,  but  that  he  was  only 
equitable  owner.  That  the  voluntary  settlement 
of  it  therefore  was  effectual,  and  that  H.  B.'s 
representative  was  bound  to  transfer  the  stock  to 
the  trustees  of  the  voluntary  settlement.    lb. 

Hon-registration— Inohoate  Legal  Title— Pre- 
existing Equitable  Title.]— The  deed  of  settle- 
ment under  which  a  company  was  formed  pro- 
vided (a)  that  no  person  claiming  to  be  the  pro- 
prietor -of  any  share  by  transfer  should  be  treated 
as  such  unless  and  until  he  should  have  been 
registered  in  the  register  of  shareholders  as 
the  proprietor  of  such  share  ;  (&)  that  no  person 
should  be  entitled  to  be  registered  as  the  pro- 
prietor of  any  share  unless  and  until  by  execu- 
tion of  the  deed  of  settlement,  or  some  deed 
referring  thereto,  he  should  have  undertaken 
all  the  obligations  of  the  shareholder ;  and  (<?) 
that  every  transfer  should  be  effected  by  deed 
which,  when  executed,  should  be  deposited  or 
left  at  the  office  of  the  company.  The  plaintiff, 
a  married  woman,  living  apart  from  her  hus- 
band, purchased  shares  in  the  company  with 
moneys  forming  part  of  her  separate  estate,  and 
such  shares  were  transferred  to  and  registered 
in  the  name  of  W.,  who  held  them  as  trustee 
for  her  for  her  separate  use.  W.,  being  indebted 
to  the  dpf endants,  as  a  security  for  his  debt,  de- 
posited with  them  the  certificates,  and  executed 
to  them  a  transfer  of  the  shares.  The  deed  of 
transfer  did  not  refer  to  the  deed  of  settlement, 
and  the  defendants  sent  it  (along  with  the  certi- 
ficates) to  the  office  of  the  company,  for  registra- 
tion ;  but  did  not  execute  or  offer  to  execute 
the  deed  of  settlement.  The  company  having 
received  notice  that  the  plaintiff  claimed  the 
beneficial  ownership  of  the  shares,  did  not  pro- 
ceed to  register  the  transfer.  In  an  action  by 
the  plaintiff  to  establish  her  title  to  the  shares  : 
— Held,  that  the  defendants  had  neither  a  com- 
plete legal  title  to  the  shares,  nor  as  between 
themselves  and  the  company  an  unconditional 
right  to  be  registered  as  shareholders  in  the 
place  of  W.,  and  that  their  title  being  inchoate 
only  was  insufficient  to  defeat  the  pre-existing 
equitable  title  of  the  plaintiff.  Dodds  v.  Hills 
(2  H.  &  M.  424), observed  upon  and  distinguished. 
Roots  v.  Williamson,  38  Ch.  D.  485  ;  57  L.  J., 
Ch.  995;  58  L.  T.  802;  36  W.  R.  758- Stir- 
ling, J. 

Approval  of  Board — Proof.]— Where  a  com- 
pany's articles  of  association  provided  that  "  no 

O 


887 


COMPANY— Shares  and  Stock. 


388 


share  shall  be  transferred  without  the  approval 
of  the  board,"  it  is  not  necessary  to  show  a  direct 
approval  by  the  board,  but  such  approval  may 
be  inferred  from  the  way  the  shares  have  been 
dealt  with  in  the  company's  books.  Branksea 
Island  Company,  In  re,  Bentinck,  Ex  parte, 
1  Meg.  23— C.  A. 
See,  also,  post,  XI.  15,  e. 

Shareholder  indebted  to  Company — Liquida- 
tion of  Shareholder— Eefusal   of  Company  to 
register  Trustee.] — By  the  articles  of  association 
of  a  company  it  was  provided  that  the  directors 
might  refuse  to  register  a  transfer  of  shares 
while   the   shareholder  making  the  same  was 
indebted  to  the  company,  or  if   they  should 
consider  the  transferee  an  irresponsible  person. 
It  was  also    provided   that  persons  becoming 
entitled  to  shares  in  consequence  of  the  death, 
insolvency,  or  bankruptcy  of  a  shareholder  might 
be  registered  on  the  production  of  such  evidence 
as  might  from  time  to  time  be  required  by  the 
directors,  and  that  any  transfer  or  pretended 
transfer  of  shares  not  being  approved  by  the 
directors  should  be  absolutely  void.    A  holder 
of  shares  in  the  company  executed  transfers  of 
such  shares  to  the  nominees  of  a  bank  as  a 
security  for  advances.    The  company  refused  to 
register  these  transfers,  on  the  ground  that  the 
transferor  was  indebted  to  the  company.    Sub- 
sequently, the  transferor  having  filed  a  liquida- 
tion petition,  a  trustee  in  liquidation  was  duly 
appointed.    Such  trustee,  with  the  consent  of 
the  bank  and  their  nominees,  applied  to  the 
directors  of  the  company  to  be  registered  as  the 
owner   of   the   shares,  but   they   refused   the 
application.    The  bank,  though  consenting  to 
the    trustee's    registration,   had   never  waived 
their  security : — Held,  that   the   declining   to 
register  the  transfers  by  the  directors  was  not  a 
disapproval  of  them  so  as  to  render  them  void 
within  the   meaning  of  the  articles,  that  the 
trustee  was  not  entitled  to  the  shares  within 
the  meaning  of  the  articles  so  long  as  the  trans- 
fers remained  in  force,  and  that  the  trustee  was 
not  entitled  to  be  registered,  notwithstanding 
the  consent  of  the  transferees.     Harrison,  Ex 
parte,  Cannock  and  Rvgcley  Colliery  Company, 
In   re,  28    Ch.   D.  563;    64  L.  J.,  Ch.  554; 
53  L.  T.  189— C.  A. 


notice,  so  as  to  acquire  a  greater  right  than  the 
person  from  whom  he  himself  received  the 
instrument.  If  a  debtor  delivers  to  his  creditor 
a  blank  transfer  by  way  of  security,  that  does 
not  enable  the  creditor  to  delegate  to  another 
person  authority  to  fill  it  up  for  purposes  foreign 
to  the  original  contract.  Sargent,  Ex  parte 
(17  L.  R.,  Bq.  273),  observed  upon.    lb. 

Want   of  Seal  —  Evidence   of   foaling  and 
Delivery.] — A.    deposited   with    B.,  his  stock- 
broker, the  certificates  of  shares  in  the  Balkis 
Consolidated  Company,  and  executed  a  blank 
transfer  to  secure  the  balance  of  his  current 
account.    The  articles  of  the  company  required 
that  transfers  of  shares  should  be  made  by  deed. 
Shortly  afterwards  B.  filled  up  the  blank  transfer 
with  the  name  of  L.  as  transferee,  and  deposited 
the  shares  with  L.  as  security  for  money  borrowed, 
as  he  alleged,  in  pursuance  of  the  general  direc- 
tions of  A.    Later  on  B.  closed  A.'s  account  and 
sold  the  shares.    L.,  who  was  willing  that  the 
purchase  should  be  completed,  applied  to  the 
company  to  register  the  transfer  to  himself.    In 
the   meanwhile    A,    who    had    disputed    B.'s 
account,  had  given  the  company  notice  not  to 
register.  .  L.  now  moved,  under  the  Companies 
Act,  1862,  s.  65,  to  rectify  the  register  by  in- 
serting  his  name.    On  production  of  the  transfer, 
it  appeared  that  it  contained  no  seal  or  wafer 
in  the  place  of  a  seal,  but  only  a  mark  on  the 
paper  of  the  place  where  the  seal  ought  to  be. 
The  transfer  was  witnessed  by  B.'s  clerk  as 
having  been  signed,  sealed,  and  delivered  by  A, 
but  the   attesting  witness  did  not  make  any 
affidavit,  and  the  evidence  of  A.  and  B.  as  to 
whether  A.  put  his  finger  on  the  seal  or  not  was 
contradictory  : — Held,  that  no  order  could  be 
made  on  the  motion  ;  that  L.  could  have  no  right 
to  be  registered  unless  A.  were  estopped  from 
denying  that  the  transfer  to  L.  was  good,  and 
this  estoppel  could  only  arise  if  the  document 
delivered  to  L.  were  prima  facie  complete ;  that 
it  was  not  complete  in  the  absence  of  a  seal 
unless  it  was  shown  that  it  had  been  sealed,  and 
for  this  the  evidence  was  insufficient,    Bdhu 
Consolid-ated   Company,  In  re,  58  L.  T.  300; 
36  W.  R.  392— North,  J. 


Blank  Transfer— Eights  of  Holder.]— F.,  the 

registered  holder  of  shares  in  a  company, 
deposited  the  certificates  with  C.  as  security  for 
150/.,  and  gave  him  a  transfer  signed  by  F., 
with  the  consideration,  the  date,  and  the  name 
of  the  transferee  left  in  blank.  C.  deposited  the 
certificates  and  the  blank  transfer  with  Q.  as 
security  for  2501.  C.  died  insolvent,  after  which 
Q.  filled  in  his  own  name  as  transferee,  and  sent 
in  the  transfer  for  registration.  The  shares  were 
accordingly  registered  in  Q.'s  name,  but  whether 
this  was  done  before  notice  given  by  F.  to  the 
company  and  to  Q.  that  F.  denied  the  validity  of 
the  transfer,  was  doubtful  on  the  evidence : — 
Held,  that  Q.  had  no  title  against  F.  except  to 
the  extent  of  what  was  due  from  F.  to  C. 
France  v.  dark,  26  Ch.  D.  257 ;  63  L.  J.,  Ch. 
585  ;  60  L.  T.  1  ;  32  W.  R.  466— C.  A. 

A  person  who  without  inquiry  takes  from 
another  an  instrument  signed  in  blank  by  a  third 
party,  and  fills  up  the  blanks,  cannot,  even  in 
the  case  of  a  negotiable  instrument,  claim  the 
benefit  of  being  a  purchaser  for  value  without 


Transfer  of  Stock  into  Joint  Names—  Bowlt- 
ing  Trust— Intention  to  Benefit.]— The  plaintiff, 
a  widow,  in  the  year  of  1880,  caused  6,000*. 
Consols  to  be  transferred  into  the  joint  names  of 
herself  and  the  defendant,  who  was  her  godson. 
She  did  so  with  the  express  intention  that  the 
defendant,  in  the  event  of  his  surviving  her, 
should  have  the  Consols  for  his  own  benefit,  but 
that  she  should  have  the  dividends  during  her 
life ;  and  she  had  previously  been  warned  that  if 
she  made  the  transfer  she  could  not  revoke  it 
The  first  notice  the.  defendant  had  of  the  trans- 
action was  a  letter  from  the  plaintiff's  solicitor 
about  the  end  of  1882,  claiming  to  have  the  fund 
re-transferred  to  the  plaintiff  :— Held,  that  the 
legal  title  of  the  defendant  as  a  joint  tenant  of 
the  stock  was  complete,  although  he  had  not 
assented  to  the  transfer  until  he  was  requested 
to  join  in  re-transferring  the  stock,  for  that  the 
legal  title  of  a  transferee  of  stock  is  complete 
without  acceptance.  A  transfer  of  property  to 
a  person  without  his  knowledge,  ii  made  w 
proper  form,  vests  the  property  in  him  at  onee, 
subject  to  his  right  to  repudiate  it  when  infonnea 
of  the  transfer.    Standing  v.  Bowring^l  Ch.D. 


889 


COMPANY— Shares  and  Stock. 


890 


282 ;  65  L.  J.,  Ch.  218  ;  54  L.  T.  191  ;  34  W.  R. 
204-C.  A. 

Held,  further,  that  the  plaintiff  could  not 
claim  a  re-transfer  on  equitable  grounds,  the 
evidence  clearly  showing  that  she  did  not,  when 
she  made  the  transfer,  intend  to  make  the  defen- 
dant a  mere  trustee  for  her  except  as  to  the 
dividends,    lb. 

Forged  Transfer  by  one  Executor — Eight  of 
etker  to  sue.] — One  of  two  executors,  at  various 
periods,  some  of  which  were  more  than  six  years 
before  the  commencement  of  the  action,  forged 
his  co-executor's  signature  to  transfers  of  stock, 
which  were  duly  registered.  He  applied  the 
proceeds  of  the  transfers  to  his  own  purposes, 
bat  continued  to  pay  the  amounts  of  the  divi- 
dends to  the  persons  entitled.  The  other  executor, 
on  discovery  of  the  fraud,  informed  the  railway 
company  that  the  transfers  were  invalid,  and 
demanded  that  the  stock  should  be  registered  in 
the  names  of  herself  and  another  who  had  been 
appointed  trustees  of  the  will.  The  railway 
company  declined  to  accede  to  this  request,  and 
the  present  action  was  brought  that  the  company 
might  be  ordered  to  register  the  plaintiffs  as 
owners  of  the  stock  : — Held,  that  one  of  the  co- 
executors  could  not  transfer  stock  registered  in 
the  names  of  both ;  that  the  transfers  were  not 
good  as  to  one  moiety  of  the  stock,  and  that  the 
innocent  executor  had  in  equity  a  sufficient 
interest  in  the  stock  to  enable  her  to  sue  her 
fraudulent  co-executor  and  the  railway  company. 
Barton,  v.  North  Staffordshire  Railway,  38  Ch. 
D.  458;  57  L.  J.,  Ch.  800 ;  58  L.  T.  549  ;  36  W. 
R.  754— Kay,  J. 

Estoppel  —  Wegligence —  Custody  of  Seal  — 
Proximate  Cause  of  Lost.] — The  plaintiffs,  a 
corporate  body,  left  their  seal  in  the  custody  of 
their  clerk,  who,  without  authority,  affixed  it  to 
powers  of  attorney,  under  which  certain  stock  in 
the  public  funds,  the  property  of  the  plaintiffs, 
was  sold.  The  clerk  appropriated  the  proceeds. 
la  an  action  in  which  the  plaintiffs  claimed  that 
they  were  entitled  to  the  stock  on  the  ground 
that  it  had  been  transferred  without  their 
authority  by  the  defendants: — Held,  on  the 
authority  of  Bank  of  Ireland  v.  Evans1  Trustees 
<5  H.  L.  C.  389),  that  assuming  the  plaintiffs 
had  been  negligent  their  negligence  was  not  the 
proximate  cause  of  the  loss,  and  did  not  dis- 
entitle them  from  recovering  in  the  action. 
Merchants  of  the  Staple  v.  Bank  of  England,  21 
<l  B.  D.  160  ;  57  L.  J.,  Q.  B.  418  ;  36  W.  R.  880  ; 
<52  J.  P.  580— C.  A. 


«.  REGISTRATION  OF  CONTRACT  UNDER 
S.  25  OF  COMPANIES  ACT,  1867.— See 
post,  coL  446,  et  seq. 


7.  REGISTRATION  OF'  SHARES. 


to  Company.] — A  prerogative  writ 
of  mandamus  will  not  lie  to  compel  a  company 
to  register  as  a  holder  of  shares  therein,  a  person 
to  whom  they  have  issued  certificates  in  respect 
of  such  shares  where  the  company  have  issued 
prior  certificates  in  respect  of  such  shares  to 
someone  else,  without  clear  proof  that  the  person 
to  whom  the  last  certificates  were  issued  has  a 


better  title  than  the  person  to  whom  the  earlier 
ones  were  issued,  even  though  the  person  holding 
the  earlier  certificates  has  not  been  entered  in 
the  company's  register  as  the  holder  of  such 
shares.  When  such  a  writ  is  asked  for,  the 
company  are  not  estopped  from  relying  upon 
the  actual  facts.  Reg.  v.  Charnwood  Forest 
Railway,  1  C.  &  E.  419 — Denman,  J.  Affirmed 
in  C.  A. 

Action  against  Company  for  Refusal  to  Regis- 
ter— Damages.  ] — The  plaintiff  transferred  shares 
of  his  in  a  registered  company  to  A.  B.  on  an 
agreement  between  them  that  if  A.  B.  was 
accepted  as  shareholder  by  the  company  the 
shares  should  be  taken  by  him  at  their  market 
value  in  reduction  of  a  debt  due  to  him  from 
the  plaintiff.  The  consideration  was  stated 
in  the  transfer  to  be  only  the  sum  of  5«.,  and 
the  transfer  was  brought  to  the  company  for 
registration  without  any  notice  of  the  said 
agreement  between  the  plaintiff  and  A.  B. 
The  company  refused  to  register  on  the  ground 
that  the  plaintiff  was  indebted  to  them,  but 
on  its  being  established  after  an  interval  of 
eighteen  months  that  the  plaintiff  was  not  so 
indebted,  the  company  registered  the  transfer. 
In  an  action  against  the  company  for  wrongfully 
refusing  to  register,  the  plaintiff  sought  to 
recover  as  damages  the  loss  in  the  market  value 
of  the  shares  between  the  time  when  the  trans- 
fer was  brought  to  the  company  to  be  registered 
and  the  time  when  it  was  in  fact  registered  : — 
Held,  that  the  plaintiff  was  entitled  to  recover 
only  nominal  damages,  as  the  contract  between 
the  plaintiff  and  A.  B.  was  a  special  one.  of 
which  the  company  had  had  no  notice,  and  the 
ordinary  contract  on  the  sale  of  registered 
shares  was  only  that  the  seller  should  give  to 
the  purchaser  a  valid  transfer,  and  do  all  required 
to  enable  the  purchaser  to  be  registered  as 
member  in  respect  of  such  shares ;  the  duty  of 
the  purchaser,  which  has  not  been  altered  by 
s.  26  of  the  Companies  Act,  1867,  being  to  get 
himself  registered  as  such  member.  Skinner  v. 
City  of  London  Marine  Insurance  Corporation, 
14  Q.  B.  D.  882 ;  54  L.  J.,  Q.  B.  437  ;  63  L.  T. 
191 ;  33  W.  R.  628— C.  A. 

List  of  Members — Inspection  of  Register.]— 
See  ante,  I.,  3,  b.  and  c. 

Rectifying  Register— Jurisdiction.]— On  the 
4th  May,  1887,  A.  deposited  with  B.,  his  broker, 
certain  shares  in  the  E.  company,  registered 
under  the  Companies  Act,  1862,  and  signed  a 
blank  transfer.  B.  signed  a  receipt  stating  that 
the  shares  were  deposited  to  secure  the  balance 
of  A.'s  account,  and  that  he  would  not  realise 
them  without  A.'s  sanction.    On  the  23rd  July, 

A.  wrote  authorising  a  sale  of  the  K.  shares  at  a 
given  price.    On  the  5th  of  August,  A.  wrote  to 

B.  that  the  shares  in  his  hands  would  be  sold  by 
another  broker,  but  at  the  same  time  directed 
him  to  sell  certain  shares  other  than  the  K. 
shares.  On  the  27th  August  B.  sold  the  E. 
shares  on  the  Stock  Exchange  to  W.,  at  a  price 
above  the  limit  fixed  by  A.  on  the  23rd  July. 
B.  filled  in  the  transfer  with  W.'s  name,  and  W. 
sent  the  transfer  to  the  company's  office  for 
registration.  The  company,  having  been  warned 
by  A.  not  to  register  the  transfer,  refused  regis- 
tration. W.  moved  under  s.  25  of  the  Companies 
Act,  1862,  to  have  the  register  rectifed  by  enter- 

O  2 


n 


391 


COMPANY— Shares  and  Stock. 


892 


ing  his  name  as  a  member  in  the  place  of  A. : — 
Held,  (1)  on  the  construction  of  the  correspond- 
ence between  the  parties,  that  B.  was  an  equit- 
able mortgagee,  with  a  power  of  sale  not  to  be 
exercised  without  A.'s  sanction,  but  that  that 
sanction  had  been  given  and  not  withdrawn ; 
(2)  that  in  that  state  of  facts  the  court  had 
jurisdiction  to  decide  the  question  of  title  be- 
tween A.  and  the  purchaser  from  B.  upon  motion 
to  rectify  the  register  under  s.  35,  and  that  W.'s 
name  must  be  put  on  the  register.  Kimberley 
North  Block  Diamond  Mining  Company,  In  re, 
Wernher,  Ex  parte,  59  L.  T.  679— C.  A. 


Lapse  of  Time — Paid-up  Shares.]— The 


members  of  a  firm  sold  their  assets  to  a  com 
pany  formed  for  the  purpose  under  a  verbal 
contract.  All  the  shares  in  the  company  were 
issued  to  the  partners  or  their  nominees.  The 
shares  were  issued  as  paid  up  to  the  extent  of 
the  purchase-money.  After  the  lapse  of  fourteen 
years  the  court,  on  being  satisfied  that  all  debts 
were  provided  for,  rectified  the  register  of  mem- 
bers, by  striking  out  the  names  of  all  the  share- 
holders ;  and  directing  the  issue  of  new  shares, 
after  a  proper  agreement  had  been  executed  and 
filed  under  the  Companies  Act,  1867,  s.  25.  Dar- 
lington Forge  Company,  In  re,  34  Ch.  D.  522  ;  56 
L.  J.,  Ch.  730  ;  56  L.  T.  627  ;  35  W.  R.  537— 
North,  J. 

Contract   to  take  Shares — Cancellation 


of  Shares— Rescission  of  Contract.]— W.,  T.  and 
P.  applied  for  shares  in  a  limited  company 
established  for  the  purpose  of  purchasing  and 
working  a  concession  from  a  foreign  Govern- 
ment. T.  and  P.  were  directors  of  the  company. 
The  directors  sent  letters  of  allotment  to  the 
applicants,  in  which  they  called  on  them  to 

Say  the  allotment  money  by  a  certain  day. 
>ut  their  names  were  never  entered  on  the 
register,  nor  was  any  allotment  money  paid 
nor  certificates  of  shares  issued.  Three  years 
afterwards  the  directors  made  afresh  arrangement 
with  the  owners  of  the  concession,  under  which 
they  purported  to  cancel  the  old  allotments 
and  to  allot  all  the  shares,  except  a  few 
reserved  for  the  directors  and  other  persons, 
to  the  vendor  of  the  concession  and  his  nomi- 
nees. The  shares  were  accordingly  entered  in 
the  register  in  their  names.  Soon  afterwards 
the  company  was  ordered  to  be  wound  up,  and 
the  liquidator  applied  to  the  court  to  rectify  the 
register  by  placing  on  it  the  names  of  W.,  T.  and 
P.  for  the  number  of  shares  allotted  to  them, 
and  to  diminish  the  number  of  shares  for  which 
the  vendor  of  the  concession  was  entered  on  the 
register  to  a  like  amount : — Held,  that  whether 
the  effect  of  the  application  and  allotment  was 
that  W.,  T.  and  P.  became  actual  members  of  the 
company  in  respect  of  the  shares  allotted  to 
them  or  only  agreed  to  become  such  members,  it 
was  now  too  late,  under  the  circumstances  which 
had  occurred,  for  the  company  to  insist  on 
placing  their  names  on  the  register.  Held,  also, 
that  the  fact  that  T.  and  P.  were  directors  whose 
duty  it  was  to  place  the  allottees  on  the  register 
did  not  affect  the  question.  Florence  Land  and 
Public  Works  Company,  In  re,  NieoVs  cote, 
Tufnell  $  Ponsonby's  cane,  29  Ch.  D.  421 ;  52 
L.  T.  933— C.  A. 

Entry,  Condition  Precedent  to  Membership.]— 
But,  semble,  according  to  the  true  construction 


of  the  23rd  section  of  the  Companies  Act.  1868, 
they  did  not  become  members  in  respect  of 
the  allotted  shares,  the  entry  on  the  register 
being  a  condition  precedent  to  such  member- 
ship,   lb. 

Summons  to  Remove  Hames  from  list  of 
Contributorios  —  Attendance  and  Appearance 
of  Parties — Costs.] — Where  summonses  were 
taken  out  by  A.  and  B.  to  have  their  names  re- 
spectively removed  from  the  list  of  contribatories 
of  a  company,  counsel  appeared  for  credito© 
in  A.'s  case  and  asked  for  costs : — Held,  that 
only  one  set  of  costs  could  be  allowed — namely, 
the  liquidator's.  In  B.'s  case,  counsel  for 
creditors,  though  admitting  that  he  must  ap- 
pear at  his  own  expense,  contended  that  under 
rule  60  of  the  General  Order,  1862,  he  wss  en- 
titled to  be  heard  : — Held,  that  the  judge  had  a 
discretion.  His  lordship,  in  the  exercise  of  that 
discretion,  declined  to  hear  anyone  in  opposition 
to  the  summons  except  the  liquidator.  Anglo- 
Indian  Industrial  Institution,  In  re,  Montagu** 
case;  Grey's  case,  59  L.  T.  208— Kay,  J. 
Affirmed,  86  L.  T.  Journ.  6  ;  33  8.  J.  11. 

8.    CALLS. 

Board  of  Directors — Minimum  Fumber— for- 
feiture of  Shares  for  Hon-payment — Estoppel- 
Call  when  "  Owing  "—Interest  on  Calls,]— 
By  the  articles  of  association  of  the  plaintiff 
limited  company  (in  liquidation),  it  was  pro- 
vided that  the  board  of  directors  should  con- 
sist of  not  less  than  three  nor  more  than  seven 
directors.  Calls  were  to  be  made  by  the  board 
of  directors.  If  any  casual  vacancy  occurred 
in  the  office  of  directors,  it  might  be  filled  up  by 
the  board  of  directors.  Any  member  whose 
shares  had  been  declared  forfeited  was  notwith- 
standing to  be  liable  to  pay  all  calls  owing  upon 
such  shares  at  the  time  of  the  forfeiture,  and  the 
interest  (if  any)  thereon.  If  any  member  did 
not  pay  the  amount  of  any  call  for  which  he 
was  liable,  it  was  provided  that  he  should  pay 
interest  for  the  same  from  the  day  appointed  tor 
the  payment  thereof  to  the  time  of  actual  pay- 
ment, at  the  rate  of  10  per  cent,  per  annnm. 
The  defendant  was  a  director  of  the  plaintiff 
company,  and  a  shareholder  in  it  to  a  large 
extent.  At  a  meeting  of  directors  held  on  the 
7th  November,  1882,  a  call  of  U.  per  share  was 
made  payable  on  the  6th  December.  Before 
the  19th  December,  1882,  by  the  resignation  of 
some  of  the  directors,  their  number  was  reduced 
to  two,  of  whom  the  defendant  was  one.  At  a 
meeting  held  on  the  19th  December,  1882,  these 
two,  the  defendant  being  in  the  chair,  elected 
three  other  directors,  and  the  board  thus  consti- 
tuted passed  a  resolution  that  notice  be  sent 
the  shareholders  who  had  not  paid  the  call,  that, 
in  default  of  its  payment  by  the  30th  December, 
their  shares  would  be  liable  to  forfeiture.  They 
also  made  a  second  call  of  1/.  per  share,  payable 
on  the  20th  January,  1883.  At  a  meeting  of  the 
same  directors  held  on  the  3rd  January,  1883, 
the  defendant  in  the  chair,  it  was  resolved  that 
the  shares  on  which  the  first  call  had  not  been 
paid  should  be  forfeited.  Amongst  the  names 
of  the  shareholders  in  arrear  that  of  the  defen- 
ant  was  included.  Upon  an  action  to  recover 
the  amount  of  the  said  two  calls  and  interest 
upon  them  from  the  day  on  which  they  respec- 
tively became  payable,  at  the  rate  of  10  per 


393 


COMPANY— Shares  and  Stock. 


894 


cent  per  annum,  till  payment  or  judgment : — 

Held,  that  the  two  directors  who  were  alone  in 

office  at  the  commencement  of  the  meeting  held 

on  the  12th  December,  1882,  not  being  sufficient 

in  number  to  form  a  properly  constituted  board, 

although  sufficient  to   form    a   quorum    of   a 

properly  constituted  board,  had  no  power  to  act 

» as  to  increase  the  number  of  directors,  or  to 

nike  a  call,  as  between  the  company  and  the 

ordinary  shareholders.    But  held,  that,  as  the 

defendant  was  a  director,  in  the  chair,  and 

awuted  in  passing  the  resolutions  for  the  second 

call  and  for  the  forfeiture  of  the  shares  on  the 

non-payment  of  the  first  call,  the  defendant  was 

stopped  from  disputing  the  validity  of  such 

resolutions,  and  was  liable  to  pay  the  amount  of 

the  calls.    Hence,  also,  that,  the  second  call  was 

-1  owing" immediately  after  it  was  made,  and 

therefore  the  defendant  was  liable  to  pay  it, 

although  in  fact  his  shares  had  been  forfeited 

before  the  day  appointed  for  the  payment  of 

«ch  second  call.    Held,  also,  that  the  defendant 

was  liable  to  pay  interest  at  the  rate  of  10 

per  cent  per  annum  upon  the  first  call  from 

the  day  upon  which  it  became  payable  up  to 

the  date  of  forfeiture  (the  3rd  January,  1883), 

bit  that  he  was  not  liable  to  pay  any  interest 

oo   the    second  call,  because   his   shares   had 

been  forfeited  before  the  day  for  payment  of 

aeh  second  call  bad  arrived.    Faure  Electric 

Atesmulator  Company  v.  Phillipart,  58  L.  T. 

5&— Hawkins,  J. 

Aethm  for— Issue  of  Fully  paid  shares.] — 
When  a  company  issues  shares  to  directors  as 
fiHy  paid  up  shares,  and  afterwards  endeavours  to 
recover  a  call  on  such  shares  : — Held,  that  the 
company  was  prevented  by  estoppel  from  re- 
corenng  the  amount  of  such  calls.  Christ- 
'Aw**  Gat  Co.  v.  Kelly,  61  J.  P.  374— 
*athew,J. 

Acting  as  Member  of  Company— Estoppel.] — 
Where  a  member  of  a  mutual  insurance  company, 
afterwards  converted  into  a  limited  company,  has 
luaJs  on  its  books  as  insured,  and  pays  calls, 
nd  otherwise  acts  as  if  he  were  a  member  of  the 
company,  he  is,  in  any  action  brought  against 
bun  by  the  limited  company  for  calls  on  losses, 
stopped  from  denying  his  liability,  and  from 
netting  np  either  any  irregularity  in  the  transfer 
from  the  one  company  to  the  other,  or  that  the 
tats  were  paid  without  any  stamped  policies 
boat;  entered  in  contravention  of  30  Vict.  c.  23. 
&  7.  Barrow  Mutual  Ship  Insurance  Company 
y.AMUmrner,  54  L.  J.,  Q.  B.  377  ;  64  L.  T.  68 ; 
5  Aap,  M.  C.  527— C.  A. 

Call  after  Death  of  Intestate— Grant  of  Ad- 
■nmtration  to  Company.] — An  intestate  was 
the  holder  of  shares  in  a  company  on  which  a 
«all  was  made  after  his  death.  The  court  made 
*  pant  of  administration  to  the  nominee  of  the 
ooopany  as  a  creditor  of  the  estate  of  the  de- 
tewed,  Tomluuon  v.  Oil  by,  54  L.  J.,  P.  80  ;  33 
W.K  800 ;  49  J.  P.  632— Butt,  J. 

Ufiiiation  of  Member — Order  of  Discharge — 
Wtiaaemt  CalLJ— The  liability  in  respect  of 
aim  of  a  liquidating  member  of  a  company  where 
the  liquidation  proceedings  commenced  prior  to 
the  winding-up  of  the  company,  and  are  pending 
•t  tat  time  of  the  winding-up,  is  a  debt  or  lia- 
fc&tj  whith  is  not  "  incapable  of  being  fairly 


estimated,"  and  which  is  therefore  provable  in 
the  liquidation.  When,  therefore,  under  these 
circumstances,  a  company  winding-up  has  failed 
to  carry  in  a  proof  in  the  liquidation  proceedings 
of  a  member  of  the  company  for  calls,  and  the 
liquidating  member  obtains  his  discharge,  he 
cannot  afterwards  be  placed  on  the  list  of  con- 
tributories.  Furdoonjee's  cote  (3  Oh.  D.  264) 
discussed  and  not  followed.  Mercantile  Mutual 
Marine  Insurance  Association,  In  re,  Jenkins1 
case,  25  Ch.  D.  415 ;  53  L.  J.,  Ch.  593  ;  60  L.  T. 
150  ;  82  W.  R.  360— Chitty,  J. 

Affidavit  by  Liquidator  in  Support— Wind- 
ing-up.]— In  the  winding-up  of  an  unlimited 
company  the  court  has  power  to  make  a  call 
under  s.  102  of  the  Companies  Act,  1862,  on  a 
proper  case  shown  by  the  official  liquidator; 
and  the  debts  of  the  company  not  having  been 
paid,  an  affidavit  by  the  liquidator  that  the  call  was 
required  for  "  the  adjustment  of  the  rights  and 
liabilities  of  the  members  amongst  themselves  " 
was  held  to  imply  that  the  call  was  necessary 
for  the  payment  of  debts,  and  to  be  a  sufficient 
compliance  with  form  33  of  the  General  Order 
of  1862,  rule  33.  Norwich  Equitable  Fire  As- 
surance  Company,  In  re,  Miller* %  Case,  54  L.  J., 
Ch.  141  ;  61  L.  T.  619  ;  33  W.  R.  271— V.-C.B. 


9.    CERTIFICATES. 

Estoppel  of  Company.]  — It  was  the  duty  of 
the  secretary  of  a  company  to  procure  the  execu- 
tion of  certificates  of  shares  in  the  company  with 
all  requisite  and  prescribed  formalities,  and  to 
issue  them  to  the  persons  entitled  to  receive  the 
same.  By  a  resolution  of  the  directors  of  the 
company  it  was  provided  that  certificates  of 
shares  should  be  signed  by  one  director,  the 
secretary,  and  the  accountant.  The  secretary  of 
the  company,  having  executed  a  deed  purporting 
to  transfer  certain  shares  in  the  company  to  one 
G.,  a  purchaser  of  such  shares,  issued  to  G.  a 
certificate  stating  that  he  had  been  registered  as 
the  owner  of  the  shares.  Such  certificate  was 
in  the  usual  and  authorized  form,  and  sealed 
with  the  company's  seal,  but  the  signature  of 
the  director  appended  thereto  was  a  forgery, 
and  the  seal  of  the  company  was,  in  fact, 
affixed  thereto  without  the  authority  of  the 
directors.  G.  deposited  the  certificate  with  the 
plaintiff  as  a  security  for  advances,  and  subse- 
quently executed  a  transfer  of  the  shares  to  the 
plaintiff.  Neither  G.  nor  the  plaintiff  had  any 
knowledge  or  reason  to  suspect  that  the  certifi- 
cate was  otherwise  than  a  genuine  document,  or 
that  the  matters  stated  therein  were  untrue. 
The  company  refused  to  register  the  plaintiff  as 
owner  of  the  shares,  stating  that  there  were  no 
such  shares  standing  in  G.'s  name  in  their 
books : — Held,  that  the  company  were  estopped 
by  the  certificate  issued  by  their  secretary  from 
disputing  the  plaintiff's  title  to  the  shares.  Shaw 
v.  Port  Philip  Gold  Mining  Company,  13  Q.  B.  D. 
103  :  53  L.  J„  Q.  B.  369  ;  60  L.  T.  685  ;  32  W.  R. 
771— D. 

Pledge  —  Blank  Indorsement  —  Broken  — 
American  Law — Mercantile  Usage — Defective 
Title.] — The  English  executors  of  an  English 
holder  of  shares  in  an  American  railroad,  in 
order  that  the  shares  might  be  registered  in  their 
names  so  as  to  enable  them  to  receive  the  divi- 


895 


COMPANY— Shares  and  Stock. 


896 


dends,  and  if  necessary  to  sell,  signed  blank 
transfers  with  powers  of  attorney  indorsed  on 
the  share  certificates  and  gave  them  to  their 
brokers  in  London.  The  brokers  fraudulently 
deposited  them  with  a  London  bank  as  security 
for  advances  made  to  themselves,  and  afterwards 
became  bankrupt.  According  to  American  law 
the  certificates  were  not  negotiable  instruments, 
but  the  rightful  holder  of  them  with  the 
indorsed  transfers  signed  was  entitled  to  be 
registered  as  holder.  By  the  practice  of  the 
railway  company  it  was  required  that  the  signa- 
tures of  executors  to  an  indorsement  should  be 
attested  by  a  consul,  which  had  not  been  done, 
and  without  this  they  were  not  regarded  on  the 
Stock  Exchange  as  duly  indorsed,  though  the 
want  of  this  attestation  would  not  prevent  regis- 
tration if  the  company  were  satisfied  otherwise 
of  the  genuineness  of  the  signatures.  There  was 
some  evidence  that  under  the  circumstances  of 
the  present  case  the  bank  would  in  America  have 
been  held  entitled  to  be  registered,  on  the 
ground  tbat  the  executors  had  estopped  them- 
selves from  disputing  the  titles  of  the  holders  of 
the  certificates : — Held,  that  the  executors  when 
they  Bigned  the  certificates  and  gave  them  to 
the  brokers  enabled,  and  must  be  taken  to  have 
intended  to  enable,  them  to  represent  to  any 
one  whom  it  concerned  that  the  executors  had 
given  the  brokers  authority  to  dispose  of  the 
shares  in  whatever  manner  was  required,  and 
that  the  executors  were  estopped  from  disputing 
the  authority  of  the  brokers  to  pledge  the 
shares  :  but  held,  on  appeal,  that  as  the  certifi- 
cates did  not  represent  on  the  face  of  them  that 
the  person  in  possession  of  them  would  be 
entitled  to  the  shares,  and  the  absence  of  attes- 
tation by  a  consul  made  the  transfer  not  in 
order,  and  was  sufficient  to  put  a  party  dealing 
with  the  brokers  on  inquiry,  the  executors  were 
not  estopped,  and  must  be  held  entitled  to  the 
shares  as  part  of  their  testator's  estate.  William* 
v.  Colonial  Bank,  38  Ch.  D.  388 ;  57  L.  J.,  Ch. 
826  ;  59  L.  T.  643  ;  36  W.  R.  625— C.  A. 

Held,  also,  that  as  the  question  whether  the 
bank  was  to  be  deemed  rightfully  in  possession 
of  the  certificates  turned  upon  transactions  in 
England  it  was  to  be  decided  by  English  and 
not  by  American  law,  though  the  consequences 
of  being  rightfully  in  possession  of  them  de- 
pended on  American  law.     lb. 

Blank  Transfer— Blank  Power  of  At- 
torney—  Deposit  of  Certificates — Estoppel.]  — 
The  New  York  Central  Railroad  Company  issue 
to  the  registered  shareholders  share  certificates  ; 
each  certificate  is  for  ten  shares,  and  on  the  back 
there  is  a  blank  form  of  transfer,  and  a  blank 
form  of  power  of  attorney  to  execute  a  sur- 
render and  cancellation  of  the  certificate.  The 
mode  of  transfer  is  as  follows  ; — The  transfer 
and  power  of  attorney  are  signed  by  the  regis- 
tered shareholder.  When  this  blank  transfer 
reaches  the  hand  of  some  holder  who  desires  to 
be  registered,  his  name  is  filled  in  by  himself  or 
on  his  behalf,  and  the  certificate  is  left  with  the 
company ;  it  is  then  cancelled,  the  transferee  is 
registered,  and  a  new  certificate  in  his  name  is 
issued.  In  August,  1883,  T.  k  Co.,  as  the  brokers 
of  the  defendant,  purchased  for  him  on  the  mar- 
ket certain  shares  of  the  New  York  Central 
Railroad  Company.  The  certificates  were  per- 
mitted by  the  defendant  to  remain  with  T.  &  Co. 
In  November,  1883,  T.  &  Co.  deposited  with 


the  plaintiffe  (with  other  securities)  the  certifi- 
cates for  the  shares  so  purchased  by  them  for 
the  defendant  as  security  for  a  large  sum  bor- 
rowed by  them  from  the  bank.  On  the  11th  of 
December  following,  the  bank  re-delivered  to 
T.  &  Co.  the  certificates  for  the  shares  on  the 
ground  that  they  were  desirous  of  sending  them 
in  for  registration  ;  and  on  the  same  day,  T.  &  Co. 
filled  in  the  name  and  address  of  the  defen- 
dant on  the  blank  transfers  and  forms  of  sur- 
render of  the  same  certificates  as  the  person  in 
whose  name  the  shares  were  to  be  registered. 
The  new  certificates  were  made  out  in  the 
defendant's  name,  and  were  ready  for  issue  on 
the  20th  of  December.  The  blank  transfers  on 
the  back  of  these  certificates  were  never  signed 
by  the  defendant.  On  the  11th  December, 
when  T.  &  Co.  handed  the  certificates  to  the 
agents  of  the  company  for  registration,  they  re- 
ceived from  them  a  receipt,  which  they  then 
sent  to  the  plaintiffs,  which  receipt  the  plaintiff* 
kept  till  the  beginning  of  February,  1884,  when, 
having  learnt  that  a  member  of  the  firm  of  T.  & 
Co.  had  absconded,  they  sent  a  clerk  to  the 
agents  with  the  receipt,  and  obtained  from  them 
the  new  certificates  for  the  shares  which,  up  to 
the  commencement  of  the  action,  remained  in 
their  possession.  The  plaintiffs  claimed  a  de- 
claration that  they  were  entitled  to  the  shares : 
— Held,  that  the  case  did  not  fall  within  the 
principle  of  estoppel,  and  that  the  defendant 
was  the  legal  owner  of  the  shares,  and  entitled 
to  have  the  new  certificates  handed  to  him. 
No  estoppel  can  be  raised  on  a  document  in- 
consistent with  the  document  itself.  Oohmd 
Bank  v.  Ilepworth,  36  Ch.  D.  36  ;  56  L.  J.,  Ch. 
1089  ;  57  L.  T.  148  ;  36  W.  R.  259— Chitty,  J. 

The  right  principle  to  adopt  with  reference  to 
documents,  such  as  the  certificates  with  blank 
transfers  duly  signed  by  the  registered  holders, 
is  that  each  prior  holder  confers  on  the  bona  fide 
holders  for  value  of  the  certificates  for  the  time 
being  an  authority  to  fill  in  the  name  of  the 
transferee,  and  is  estopped  from  denying  sack 
authority,  and  to  this  extent,  but  no  further,  is 
estopped  from  denying  the  title  of  such  holder 
for  the  time  being.  By  delivery  an  inchoate 
legal  title  passes,  but  a  title  by  unregistered 
transfer  is  not  equivalent  to  the  legal  estate  in 
the  shares  or  to  the  complete  dominion  over 
them.    lb. 

Transfer  in  Blank — Delivery  of  Transfer  by 
Transferor  as  his  Deed— Equitable  Mortgage  of 

Shares — Notice.] — M.,  the  holder  of  shares  in  a 
company,  deposited  with  S.  certificates  of  the 
shares  and  a  blank  transfer,  as  security  for  a 
debt.  Afterwards  he  fraudulently  executed  a 
blank  transfer  in  respect  of  the  shares,  and 
deposited  it  with  the  appellants,  as  security  for 
a  debt.  On  being  applied  to  by  the  appellants 
for  the  share  certificate  he  stated  that  it  was 
lost  or  mislaid.  The  appellants  stamped  their 
transfer,  filled  up  the  blanks,  had  it  executed  by 
their  manager  as  the  transferee,  and  sent  it  to 
the  company's  office  with  a  request  that  the 
company  would  "certify  it,"  and  with  an  in- 
demnity against  any  claim  in  respect  of  the 
missing  certificates.  The  company  did  not  accept 
the  indemnity  and  declined  to  certify.  Shortly 
after  the  executors  of  S.  (who  had  died)  gave 
notice  to  the  company  of  their  charge  upon  the 
shares.  The  company  was  incorporatea  under 
the    Companies   Act,    1862.     The    articles  of 


897 


COMPANY— Dividends. 


898 


iflotiatioQ  provided  that  the  shares  should  be 
tiansferable  only  by  deed  ;  that  lost  certificates 
might  be  renewed  upon  satisfactory  proof  of 
the  loss,  or  in  default  of  proof  upon  a  satis- 
factory indemnity  being  given ;  and  that  the 
company  should  not  be  bound  by  or  recognize 
any  equitable  interest  in  shares.    Each  certificate 
dated,  under  the  company 's  seal,  that  no  transfer 
of  soy  portion  of  the  shares  represented  by  the 
certificate  would  be  registered  until  the  certificate 
had  been  delivered  at  the  company's  office.    The 
appellants  having  brought  an  action  against  the 
executors  for  a  declaration  of  their  title  to  the 
ihares  and  to  restrain  the  executors  from  dealing 
with  the  shares  : — Held,  that  the  transfer  to  the 
appellants  not  having  been  re-delivered  by  the 
transferor  after  the  blanks  were  filled  up  was  not 
his  deed,  and  that  the  appellants  had  no  legal 
title  to  the  shares  ;  that  as  between  themselves 
and  the  company  they  never  had  an  absolute  and 
^conditional  right  to  be  registered  as  the  share- 
holders; that  nothing  that  had  happened  gave 
them  a  right  on  equitable  grounds  to  displace  the 
original  priority  of  the  equitable  claim  of  the 
executors;  and  that  the  action  could  not  be 
maintained.    ffibblewhite  v.  Mc Marine  (6  M.  & 
W.  200)  approved.    Societe  GinSrale  de  Parti 
t.  Wilier,  11  App.  Cas.  20 ;  55  L.  J.,  Q.  B.  169  ; 
«  L.  T.  389 ;  34  W.  R.  662— H.  L.  (B). 

The  principle  of  Dearie  v.  Hall  (3  Russ.  1), 
at  to  the  effect  of  notice  in  determining  the 
priorities  of  equitable  rights,  is  inapplicable  to 
shares  in  such  a  company.    Per  Seiborne,  Earl 


10.  OTHER  POINTS. 

Ctas*  in  Action — Bankruptcy  —  Order  and 
Uspeaition.] — Shares  in  a  railway  company  are 
"chases  in  action  "  such  as  to  be  excepted  from 
the  doctrine  of  reputed  ownership  by  s.  44  (iii.) 
of  the  Bankruptcy  Act,  1883.  Colonial  Bank  v. 
WMmitf,  11  App.  Cas.  426  ;  56  L.  J.,  Ch.  43 ; 
W  L  T.  362  ;  34  W.  B.  705  :  3  M.  B.  R.  207— 
H.  U  (E.) 

B.  and  J.  were  in  partnership  as  stockbrokers. 
Some  shares  in  a  railway  company  were  bought 
with  partnership  money,  ana  equitably  mort- 
gaged by  B.  by  deposit  with  the  appellant  bank 
to  secure  the  firm's  banking  account.  Before 
notice  of  deposit  had  been  given  to  the  company 
B.  and  J.  separately,  and  as  members  of  the  firm, 
were  made  bankrupts  : — Held,  that  the  circum- 
stances were  such  as  to  prove  that  the  bankrupts 
were  not  reputed  owners  of  the  interest  of  the 
appellant  bank  in  the  shares.    lb. 

fndwinity  to  Trustees.]  —  &t  Trust  axd 
Tbcbtbb. 

Charging  Order  on  Shares,]—  See  Execution. 

Action  lor  Rescission  of  Contraet  to  Take — 
!»yaent  into  Court  of  Unpaid  Calls — Injunction 
lestraining  Forfeiture.]— A  shareholder  of  a 
company  having  commenced  an  action  against 
the  company  for  rescission  of  his  share  contract, 
°*  the  ground  of  misrepresentation,  paid  into 
court  the  sum  demanded  by  the  company  for 
unpaid  calls,  and  moved  to  restrain  the  company 
fam  declaring  the  shares  forfeited.  The  court, 
howeverf  dismissed  the  motion  with  costs, 
that  the  proper  course   was   for   the 


plaintiff  to  have  paid  the  money  to  the  company 
without  prejudice  to  any  question.  Ripley  v. 
Paper  Bottle  Company,  57  L.  J.,  Ch.  827— 
Ghitty,  J. 

Issue  of  Hew  Stock  to  Original  Shareholders 
— Profit  arising  from  Sale—Capital  or  Income.] 
— A  testator,  who  died  in  1843,  by  his  will,  dated 
in  1841,  bequeathed  (inter  alia)  thirty-five  shares 
in  a  gas  company  to  trustees  upon  trust  for  his 
wife  for  life,  and  subject  thereto  he  directed  that 
the  same  should  form  part  of  his  residuary  estate. 
After  the  death  of  the  testator  the  gas  company 
resolved  to  increase  its  capital  by  the  issue  of 
fresh  stock,  which  it  offered  to  its  shareholders. 
J.  K.,  acting  under  a  power  of  attorney  on  behalf 
of  the  surviving  trustee  of  the  will,  who  was 
resident  abroad,  availed  himself  of  the  offer,  and 
took  up  with  his  own  moneys  and  in  his- own 
name  some  of  the  new  stock.  An  action  for 
administration  of  the  testator's  estate  having  been 
instituted,  an  order  was  made  on  the  executrix 
of  J.  K.,  who  had  died,  under  which  the  new 
stock  was  sold,  and  the  balance  of  the  proceeds 
of  sale,  after  repayment  of  the  amount  paid  for 
the  stock  and  interest,  and  deducting  therefrom 
the  dividends  received  by  J.  K.,  was  paid  into 
court  to  the  credit  of  the  action.  On  the  further 
consideration  of  the  action,  a  question  arose 
whether  the  testator's  widow,  as  tenant  for  life 
of  the  thirty- five  original  shares,  was  entitled  to 
this  balance,  or  whether  the  same  formed  part 
of  his  residuary  estate  : — Held,  that  the  trust 
relating  to  the  thirty-five  shares  must  be  treated 
as  if  it  stood  alone,  it  being  in  respect  of  that 
particular  trust  that  J.  K.  had  obtained  the 
power  of  which  he  had  availed  himself :  and  that 
the  benefit  arising  therefrom  must  be  treated  as 
belonging  to  that  trust  alone  :—  Held,  therefore, 
that  the  balance  in  court  represented  capital, 
and  that  the  widow  was  entitled  to  the  income 
thereof  for  life.  Bromley,  In  re,  Sanders  v. 
Bromley,  55  L.  T.  145— Kay,  J. 


VII.    DIVIDENDS. 

Alteration  of  Memorandum  by  Speoial  Reso- 
lution.]— By  the  memorandum  of  association  of 
a  company  the  rights  of  the  preference  and 
ordinary  shareholders  in  respect  of  dividends 
were  expressly  defined.  By  special  resolutions 
passed  in  1872  it  was  resolved  that  the  applica- 
tion of  the  revenue  as  between  the  preference 
and  ordinary  shareholders  should  be  altered  in  a 
manner  beneficial  to  the  preference  shareholders. 
These  resolutions  were  acted  on  for  more  than 
ten  years  without  any  objection  being  raised  on 
the  part  of  any  shareholder.  Subsequently  other 
special  resolutions  were  passed  restoring  the 
original  appropriation  of  the  revenue  prescribed 
by  the  memorandum  of  association  : — Held,  that 
even  if  the  resolutions  passed  in  1872  had  been 
ratified  by  all  the  shareholders  (as  to  which  there 
was  no  evidence),  yet  the  resolutions  altered  a 
condition  contained  in  the  memorandum  within 
the  meaning  of  s.  12  of  the  Companies  Act, 
1862,  and  were  therefore  invalid,  and  that  the 
net  revenue  ought  to  be  applied  in  the  manner 
prescribed  by  the  memorandum  of  association. 
Ashbury  v.  Watson,  30  Ch.  D.  376  ;  54  L.  J.,  Ch. 
985  ;  54  L.  T.  27  ;  33  W.  R.  882— C.  A. 

Receipt    of,    by    Agent  —  Whether    Trust 


399 


COMPANY— Dividends. 


400 


Created.]  —  A  foreign  government  issued  .  a 
public  loan  under  a  decree  and  an  agreement 
providing  for  a  mortgage  to  the  defendants  of 
certain  estates  on  behalf  of  bondholders.  The 
defendants  received  instructions  to  pay  coupons 
for  interest  falling  due  on  the  1st  of  June,  less 
five  per  cent,  tax,  pursuant  to  a  decree  of  the 
government  which  was  to  take  effect  subject  to 
the  promulgation  of  a  decree  modifying  the  Law 
of  Liquidation.  The  defendants  having  received 
from  the  government  a  sum  of  money  to  meet 
the  half-yearly  interest  less  five  per  cent., 
advertised  that  they  would  make  such  payments. 
Subsequently  the  defendants  received  10,000/., 
being  the  amount  of  the  five  per  cent.,  from  the 
commissioners  of  the  government  who  managed 
the  mortgaged  estates,  but  it  did  not  appear  that 
such  commissioners  were  authorised  to  remit 
such  sum.  The  defendants,  however,  issued  a 
further  advertisement  that  the  coupons  would  be 
paid  in  full.  Finally,  they  issued  an  advertise- 
ment that  in  accordance  with  directions  of  the 
government  the  coupons  would  be  paid  less  five 
per  cent,  notwithstanding  that  the  amount  re- 
quired to  pay  the  same  in  full  had  been  duly  re- 
mitted to  them  by  the  commissioners.  After 
such  last  advertisement  the  decree  modifying  the 
Law  of  Liquidation  was  passed.  The  plaintiff, 
a  bondholder,  brought  this  action  claiming  pay- 
ment of  his  coupon  in  full  by  the  agents  pursuant 
to  the  second  advertisement : — Held,  that  the 
10,0002.  was  not  remitted  to  the  agents  by  persons 
who  had  authority  to  do  so  on  behalf  of  the 
government,  and  that  therefore  it  was  not  im- 
pressed with  a  trust  in  favour  of  the  bondholders. 
Henderson  v.  Rothschild,  56  L.  J.,  Ch.  471 ;  56 
L.  T.  98  ;  35  W.  R.  485— C.  A. 

Bonus  Dividend  —  Capital  or  Income.]  —  A 

testator  bequeathed  his  residuary  personal  estate 
to  his  executor  T.  B.  in  trust  for  the  testator's 
wife  for  her  life  and  after  her  death  to  T.  B. 
Part  of  the  residuary  estate  consisted  of  shares 
in  a  company  whose  directors  had  power,  before 
recommending  a  dividend,  to  set  apart  out  of  the 
profits  such  sum  as  they  thought  proper  as  a 
reserved  fund,  for  meeting  contingencies,  equalis- 
ing dividends,  or  repairing  or  maintaining  the 
works.  After  the  testator's  death  the  directors 
of  the  company  proposed  to  distribute  certain 
accumulated  profits  (which  had  been  temporarily 
capitalised)  as  a  bonus  dividend,  to  allot  new 
shares  (partly  paid  up)  to  each  shareholder,  and 
to  apply  the  bonus  dividend  in  part  payment  of 
the  new  shares.  This  proposal  was  carried  out, 
and  with  T.  B.'s  consent  new  shares  were  allotted 
to  him  and  registered  in  his  name,  the  bonus 
dividend  on  the  testator's  old  shares  being  applied 
in  part  payment  of  the  new  shares  : — Held,  that 
looking  at  all  the  circumstances  the  real  nature 
of  the  transaction  was  that  the  company  did  not 
pay  or  intend  to  pay  any  sum  as  dividend,  but 
intended  to  and  did  appropriate  the  undivided 
profits  as  an  increase  of  the  capital  stock  ;  that 
the  bonus  dividend  was  therefore  capital  of  the 
testator's  estate,  and  that  the  life  tenant  was 
not  entitled  to  the  bonus  or  the  new  shares. 
Bouch  v.  Sproule,  12  A  pp.  Cas.  385  ;  56  L.  J., 
Ch.  1037  ;  57  L.  T.  345  ;  36  W.  R.  193— H.  L.  (E.) 

Payment  out  of  Capital  —  Property  of  a 
Wafting  Nature — Depreciation.]— In  1873  the 
defendant  company  was  formed  for  the  purpose 
of  purchasing  a  concession  and  sub-concessions 


from  several  companies,  and  also  all  the  assets 
and  businesses  of  the  selling  companies.    The 
concession  conferred  the  right  to  work  asphalte 
mines  within  a  defined  area  in  8.  for  twenty 
years.    In  1879,  in  consideration  of  the  payment 
of  8,000/.  by  the  company,  this  concession  was 
modified   by  extending  the   term  for  twenty 
years,  enlarging   the   area,  and  reducing  the 
royalties.    It  appeared  from  the  annual  accounts 
that  the  company  had  made  a  profit  in  every 
year  except  1874,  but  in  many  years  no  dividend 
was  declared.    These  accounts  contained  no  item 
on  the  debit  side  representing  the  prime  cost  of 
the  asphalte.    The  accounts  for  1884  showed  a 
profit  of  39,000/.,  of  which  1,000*.  was  written 
off  the  price  paid  for  the  modification  of  the  con- 
cession, and  the  balance  was  written  off  the 
original  cost  of  the  concession.    The  accounts 
for  1885  showed  a  profit  of  17,000/.,  out  of  which, 
after  deducting  1,000/.  as  before,  it  was  resolved 
to  pay  a  dividend  of  9«.  per  share  on  the  pre- 
ferred shares.    The  concession  as  modified  was 
not  less  valuable  at  the  end  of  1885  than  the 
original  concession  in  1873.    The  plaintiff,  on 
behalf  of  the  ordinary  shareholders,  brought  an 
action  against  the  company  and  the  directors  to 
restrain  the  payment  of  this  dividend,  on  the 
ground  that  the  accounts  made  no  allowance  for 
depreciation,  and  that  a  previous  loss  of  32,0001. 
arising  on  the  realisation  of  the  assets  of  the 
selling  companies  had  not  been  made  good  :— 
Held,  that,  in  the  absence  of  any  diminution  of 
the  capital  of  the  company,  the  court  had  no 
power  to  interfere  with  the  resolution  of  the 
shareholders  to  divide  the  whole  of  the  profits ; 
and,  further,  that  the  company  was  entitled  to 
set  off  against  the  loss  occurring  on  the  realisation 
of  the  assets  the  amount  reserved  in  1884  ;  and 
that  the  plaintiff  was  not  entitled  to  an  injunc- 
tion.   Lee  v.  Neuehatel  Asphalte  Company ',57 
L.  J.,  Ch.   622  ;    58  L.   T.   553  —  Stirling,  J. 
Affirmed  41  Ch.  D.  1 ;   58  L.  J.,  Ch.  408 ;  37 
W.  R.  321— C.  A. 

The  payment,  by  the  directors  of  a  company, 
of  a  dividend  to  the  shareholders  out  of  capital 
is  illegal  and  ultra  vires,  and  the  rolling  stock 
of  a  railway  company  is  part  of  its  capital.  But 
where  the  directors  have  been,  for  several  yean, 
replacing,  out  of  revenue,  rolling-stock  which 
has  been  worn  out,  and  the  rolling-stock 
appeared  to  be  improved,  and  to  be  greater  in 
money  value  than  it  was  five  years  before,  and 
although  there  were  some  deficiencies  in  it  which 
the  directors  were  gradually  supplying,  it  did 
not  appear  that  the  traffic  had  been  thereby 
interfered  with  or  inconvenience  suffered,  the 
court  refused  to  restrain  the  payment  of  a 
dividend  to  the  preference  shareholders,  which 
had  been  declared  at  a  general  meeting,  until 
the  deficiencies  in  the  rolling-stock  had  been 
supplied.  The  court  will  not  restrain  acts  done 
by  the  directors  in  the  exercise  of  their  discre- 
tion in  managing  the  affairs  of  their  company, 
unless  the  acts  complained  of  are  illegal,  as 
ultra  vires.  Kehoe  v.  Waterford  and  Limerick 
Railway,  21  L.  R.,  Ir.  221— M.  R. 

Liability  of  Directors.]— See  ante,  cols. 


361,  362. 


VIII.  CONTRACTS. 


Contract  whether  ultra  vires — Liability  of 
Directors.] — The  objects  of  a  company  were 
stated  by  the  memorandum  of  association  to  be 


401 


COMPANY— Contract. 


402 


"the  carrying  on  for  profit  or  gain  the  trades  [ 
or  businesses  of   discounters,  lenders    of,  and  \ 

dealers  in  money the  advancing    and  j 

lending  money   on    real,    personal,  or    mixed 
securities  ....  on  stocks  and  shares  of  railway, ' 
canal,  dock,  and  other  joint  stock  companies, 
corporations,   associations,    and    other    under- 
takings of  whatever  nature  or  description  .... 
on  ships,  goods,  merchandize,  materials,  produce, 
works,  plant,  chattels,  debts,  choses  in  action, 
articles  and  effects,  or  on  any  other  property  of 
whatever  kind   and   description  ....  in    the 
making  of  purchases,  investments,  sales,  or  any 
other  dealings  of  or  in  any  of  the  above-named 
articles  or  securities  ....  and  the  entering  into 
and  carrying  on  of  any  monetary  and  financial 
arrangements  or  operations,  and  the  doing  of  all 
matters  and  things  which  may  appear  to  the 
company  to  be  incident  or  conducive  to  the 
objects  aforesaid,  or  any  of  them  : " — Held,  that 
the  entering  into  an  agreement  to  purchase  "  on 
joint  account "  with   two    other    parties,   for 
310,000/.,  an  estate,  on  which  one  of  the  other 
parties  (K.  and  L.)  undertook  to  finish  a  building 
(the  Alexandra  Palace),  grounds,  race-course  and 
stands,  lodges,  roads,  terraces,  and  drainage,  for 
a  sun  not  exceeding   200,000/.,  the  company 
undertaking  to    float  another  (the   Alexandra 
Palace)  company  for  the  purpose  of  acquiring 
materials  and  building  the  palace,  was  a  trans- 
action within  the  powers  of  the  company.  London 
Financial  Association  v.  folk,  26  Ch.  D.  107;  53 
L.  J..  Ch.  1025  ;  50  L.  T.  492— V.-C.  B. 

Held  further,  that  such  an  agreement  did  not 
eonstitote  a  partnership  between  the  three  parties 
toh\   J*. 

Acquiescence.]  —  Observations    on    the 

effect  of  acquiescence  by  shareholders  in  the 
contracts  and  acts  of  their  directors.     lb. 

Exchange  of  Paid-up  Shares  for  Goods.] 

—A  joint-stock  company,  registered  under  the 
Companies  Acts,  1862  and  1867,  whose  business, 
as  defined  by  memorandum  and  articles  of  asso- 
ciation, was  the  manufacture  and  sale  of  whiskey, 
and  not  authorised  by  its  memorandum  or  articles 
of  association  to  deal  in  its  own  shares,  having 
accumulated  a  large  stock  of  whiskey,  which  it 
was  unable  to  sell,  the  directors  agreed  to  sell 
this  whiskey  to  one  of  themselves  in  exchange 
far  a  number  of  his  paid-up  shares  in  the  com- 
pany, and  this  transaction  was  carried  out,  and 
tuhseqnently  ratified  by  the  company,  and  the 
shares  were  duly  assigned  to  the  company,  and 
some  time  afterwards  cancelled.  The  company 
being  subsequently  wound  up,  an  application 
was  made  by  the  liquidator  that  the  directors 
who  had  been  parties  to  the  transaction  in 
question  should  pay  to  the  liquidator  the  price 
<rf  the  whiskey,  on  the  ground  that  the  trans- 
action was  ultra  vires  of  the  company,  and  void : 
—Held,  that  the  impeached  transaction  was  not 
aitra  vires  of  the  company,  and  that  it  having 
been  ratified  by  the  company,  was  valid  as 
against  the  liquidator.  Balgooley  Distillery 
Cmpmny,  1%  re%  Weekes's  dose,  17  L.  B.  Ir. 
ttMXA. 

Separate  Undertaking — Separate  Capital  — 
liability  of  Solicitor.]— Where  the  solicitors  of 
the  promoters  of  an  Act  of  Parliament,  whereby 
a  company  is  created  and  empowered  to  raise 
opital  and  carry  out  works,  and,  if  they  so 


resolve,  to  raise  separate  capital  for  and  carry 
out  separately  certain  portions  of  such  works  as 
a  separate  undertaking,  agree  to  pay  certain 
claims  out  of  the  first  capital  raised  by  the  com- 
pany, and  the  company  duly  raise  capital  for 
the  separate  undertaking  and  none  other,  neither 
the  company  nor  the  solicitors  are  liable  under 
the  agreement.  Allan  v.  Rege-nVs  Canal,  City 
and  Bocks  Railway,  54  L.  J.,  Q.  B.  201 — 
Mathew,  J.    Reversed  in  C.  A. 

On  behalf  of  Intended  Company  with  Trustee 
— Embodied  in  Articles.  1 — A  contract  between 
A.  and  a  trustee  for  an  intended  company,  by 
virtue  of  which  A.  is  to  be  director  irremovable 
for  a  certain  period,  although  that  contract  be 
embodied  in  the  memorandum  and  articles  of 
association,  is  not,  having  regard  to  section  16  of 
the  Act  of  1862,  enforceable  against  the  company 
either  at  law  or  in  equity,  notwithstanding  that 
by  allotment  of  shares  A.  has  become  a  member, 
unless  it  has  been  made  binding  by  a  new  con- 
tract between  A.  and  the  company.  Browne  v. 
La  Trinidad ',  post,  col.  404. 

Evidence— BatiAcation— Hew  Contract.] 


_ .  entered  into  an  agreement  with  W.,  who 
purported  to  act  on  behalf  of  a  company  about 
to  be  formed,  to  sell  certain  property  to  the  com- 
pany. The  company  was  formed  shortly  after- 
wards with  a  memorandum  and  articles  of  asso- 
ciation containing  provisions  for  the  adoption  of 
the  agreement  by  the  directors  on  behalf  of  the 
company  with  or  without  modification.  At 
meetings  of  the  directors  at  which  J.  was 
present,  resolutions  were  passed  adopting  the 
agreement,  accepting  an  offer  of  J.  to  take  pay- 
ment of  part  of  the  purchase-money  in  deben- 
tures instead  of  in  cash,  and  directing  that  the 
seal  of  the  company  should  be  affixed  to  an 
assignment  by  J.  to  the  company  of  leasehold 
property  comprised  in  the  agreement,  and  to 
debentures  to  be  issued  to  J.  The  assignment 
was  executed  by  J.  and  sealed  by  the  company  ; 
the  debentures  were  issued  to  him,  and  the  com- 
pany took  possession  of  the  leaseholds  and  car- 
ried on  their  business  thereon.  The  company 
was  afterwards  wound  up,  and  the  liquidator 
took  from  J.  an  assignment  of  other  property 
comprised  in  the  agreement: — Held,  that  there 
was  evidence  that  a  contract  was  entered  into 
by  the  company  with  J.  to  the  effect  of  the 
previous  agreement  as  subsequently  modified  by 
the  acceptance  of  debentures  instead  of  cash, 
and  that  there  was,  therefore,  at  the  time  when 
the  debentures  were  issued,  an  existing  debt  due 
from  the  company.  Northumberland  Avenue 
Hotel  Company,  In  re  (33  Ch.  D.  16),  considered 
and  distinguished.  Hotvard  v.  Patent  Ivory 
Manufacturing  Company,  38  Ch.  D.  156  ;  57  L. 
J.,  Ch.  878  ;  58  L.  T.  395  ;  86  W.  R.  801— Kay,  J. 

A  written  agreement  was  entered  into  between 
W.  of  the  one  part  and  D.,  as  trustee  for  an 
intended  company,  to  be  called  the  N.  Company, 
of  the  other  part,  that  W.,  who  was  entitled  to 
an  agreement  for  a  building  lease  from  the 
Metropolitan  Board  of  Works,  should  grant  an 
underlease  to  the  company,  and  that  the  com- 
pany should  erect  the  buildings.  The  company 
was  registered  on  the  following  day.  The 
memorandum  did  not  mention  the  agreement, 
but  the  articles  adopted  it,  and  provided  that  the 
company  should  carry  it  into  effect.  No  fresh 
agreement  with  W.  was  signed  or  sealed  on 


J 


408 


COMPANY — Meetings  of  Shareholders. 


404 


behalf  of  the  company,  but  the  company  took 
possession  of  the  land,  expended  money  in 
building,  and  acted  on  the  agreement,  which 
they  considered  to  be  binding  on  them.  The 
company  failed  to  complete  the  buildings,  and 
the  Metropolitan  Board  re-entered.  The  com- 
pany being  in  coarse  of  winding-up,  the  trustee 
in  bankruptcy  of  W.  took  out  a  summons  to  be 
allowed  to  prove  for  damages  against  the  com- 
pany for  their  breach  of  the  agreement : — Held, 
that  the  agreement  having  been  entered  into 
before  the  company  was  in  existence,  was  in- 
capable of  confirmation,  and  that  the  acts  of  the 
company,  having  evidently  been  done  under  the 
erroneous  belief  that  the  agreement  between  W. 
and  D.  was  binding  on  the  company,  were  not 
evidence  of  a  fresh  agreement  having  been 
entered  into  between  W.  and  the  company  on 
the  same  terms  as  the  written  agreement,  that 
there  was  therefore  no  agreement  between  W. 
and  the  company,  and  that  the  summons  must 
be  dismissed.  Northumberland  Avenue  Hotel 
Company,  In  re,  Sully's  case,  33  Ch.  D.  16  ;  54 
L.T.  77/— C.  A. 

Claim  by  Solicitor  of  Promoter  against  the 
Company.] — M.  employed  P.  as  solicitor  in  the 
formation  of  a  limited  company  for  the  purpose 
of  taking  over  M.'s  business.    The  company  was 
formed,  and  the  articles  provided  that  all  ex- 
penses incurred  about  the  formation  of  the  com- 
pany should  be  paid  by  the  company.   After  the 
company  was  formed  P.  acted  as  its  solicitor, 
and  M.  was  one  of  the  directors.    At  a  meeting 
of  the  directors,  at  which  M.  was  present,  P. 
asked  for  payment  of  his  costs  incurred  about 
the  formation  of  the  company,  and  a  conversa- 
tion took  place  tending  to  show  that  the  com- 
pany would  undertake  to  pay  them,  but  nothing 
appeared   on    the    minutes.    At  a    subsequent 
meeting  a  resolution  was  passed  on  the  proposal 
of  M.  that  a  cheque  for  39Z.  should  be  given  to 
P.  in  discharge  of  a  certain  part  of  these  costs. 
The  company  having  been  ordered  to  be  wound 
up,  P.  carried  in  a  claim  for  his  bill  of  costs  : — 
Held,  that  P.  could  not  maintain  his  claim  on 
the  ground  that  the  company  having  had  the 
benefit  of  his  services  was  bound  to  pay  for 
them,  as  his  services  had  been  rendered  on  the 
retainer    of    M.    Hereford  and    South   Wales 
Waggon  and  Engineering   Company,  In  re  (2 
Ch.  D.  621),  considered.    Rotherham  Alum  and 
Chemical   Company,  In  re%  25  Ch.  D.  103  ;  53 
L.  J.,  Ch.  290  ;  50  L.  T.  219  ;  31  W.  R.  131— 
C.  A. 

Held,  further,  that  P.  could  not  maintain  his 
claim  on  the  ground  of  novation,  the  conversa- 
tion at  the  first  meeting  not  being  supported  by 
anything  in  the  minutes,  and  the  subsequent 
giving  of  the  cheque  being  capable  of  being 
referred  to  the  obligation  of  the  company  to 
indemnify  M.  against  the  costs  incurred  in  its 
formation,  and  so  not  being  sufficient  evidence 
of  an  agreement  by  the  company  with  P.  to  pay 
him.    lb. 


Disclosure  of,  In  Prospectus.] — See  ante,  col. 
347. 


IX.    MEETINGS  OF   SHAREHOLDERS. 


When  Court  Interferes.] — The  court  refuses 
to  interfere  where  an  irregularity  has  been  com- 


mitted, if  it  is  in  the  power  of  the  persons  who- 
have  been  guilty  of  it  to  correct  it  by  taking  de 
novo  the  necessary  steps  with  all  due  formalities. 
Browne  v.  La  Trinidad,  37  Ch.  D.  1  :  57  L.  J.r 
Ch.  292  ;  58  L.  T.  137  ;  36  W.  R.  289— C.  A. 

Summoning  Extraordinary  Meeting— Lengtk 
of  Hotice — Removal  of  Directors.] — A  meeting 
of  directors  passed  a  resolution  to  summon  an 
extraordinary  general  meeting  at  which  special 
resolutions  were  to  be  proposed  for  removing  B. 
from  the  office  of  director,  and  for  increasing 
the  capital.  The  articles  gave  power  to  remove 
directors  by  special  resolution.  The  only  notice 
B.  had  of  the  board  meeting  was  a  notice  given 
less  than  ten  minutes  before  the  time  of  holding 
it,  and  not  stating  the  nature  of  the  business. 
The  notices  for  the  general  meeting  were  issued, 
and  four  days  before  the  time  for  the  meeting 
B.,  who  up  to  that  time  had  made  no  complaint 
of  the  short  notice,  brought  his  action  to  restrain 
the  company  from  holding  the  meeting,  on  the 
ground  that  the  board  which  summoned  it  was 
not  duly  constituted,  as  B.  had  not  received 
proper  notice  and  could  not  attend.  The  genera) 
meeting  was  held  and  passed  the  resolutions  :— 
Held,  that  assuming  the  board  meeting  to  be 
so  far  irregular  that  the  plaintiff  might  have 
objected  and  required  another  to  be  summoned, 
the  general  meeting,  having  been  summoned,  in 
all  other  respects  regularly,  by  directors  acting 
as  a  board,  was  competent  to  act.  Harbe*  v. 
Phillips  (23  Ch.  D.  14)  distinguished.    lb. 

Proposal  of  Resolutions  to  vary  Articles  of 
Association  —  Proxies  —  Misleading  Circular— 
Injunction.] — By  the  articles  of  association  of  a 
banking  company,  formed  under  the  Companies 
Act,  1862,  it  was  provided,  inter  alia,  that  the 
remuneration  of  the  directors  should  be  deter- 
mined by  the  company  in  general  meeting ;  and 
that  the  company  should  not  make  any  advance 
or  allow  any  credit  to  a  director,  or  to  any  firm 
of  which  a  director  should  be  partner,  on  his  or 
their  personal  guarantee  or  security  only,  or 
otherwise  than  on  adequate  security.  On  the 
24th  January,  1884,  a  circular  was  issued  con- 
vening an  extraordinary  general  meeting  of  the 
company  for  the  31st  January,  1884,  at  which 
resolutions  were  to  be  proposed  altering  the 
articles  of  association,  by  authorizing  advances  to 
directors  on  their  personal  security,  subject  to 
certain  restrictions,  and  by  increasing  the  re- 
muneration of  directors,  and  leaving  to  the 
discretion  of  the  directors  the  future  remunera- 
tion of  the  chairman  and  vice-chairman,  as  well 
as  the  remuneration  of  the  former  for  past 
services.  Proxy  forms,  drawn  in  favour  of  two 
of  the  directors,  accompanied  the  circular.  An 
action  was  commenced  by  certain  shareholders 
asking  for  an  inquiry  whether  any  sums  had 
been  misappropriated  by  the  directors  out  of  the 
funds  of  tne  company  by  way  of  remuneration 
over  and  above  what  they  would  be  respectively 
entitled  to  under  the  regulations  of  the  company 
and  an  injunction  to  restrain  the  defendants  from 
holding  the  meeting  convened  by  the  circular,  or 
from  proposing  the  resolutions  mentioned  in  the 
circular  ;  and  the  plaintiffs  having  moved  for  an 
interlocutory  injunction  : — The  court,  being  of 
opinion  that  the  circular  was  one  by  which  the 
great  body  of  the  shareholders  might  be  misled, 
and  that'the  shareholders  had  not  been  fully 
and  fairly  informed  and  instructed  upon  what 


405 


COMPANY— Meetings  of  Sliareholders. 


406 


proposed  to  be  done,  granted  an  interlocutory 
injunction  against  proposing  the  resolutions  ob- 
jected to  at  the  extraordinary  general  meeting. 
Jaeisonr.Mtinster  Bank.  13  L.  R.,  Tr.  118— 
Y..C. 


farm  of  Requisition   to   call   a  Meeting— 
hrwtr  to  remove  Directors.] — A  sufficient  number 
of  shareholders  required  the  directors  of  a  railway 
company  to  call  a  meeting  of  the  company  for 
the  following  objects  :  1.  To  appoint  a  committee 
to  inquire  into  the  working  ana  general  manage- 
ment of  the  company,  and  the  means  of  reducing 
the  working  expenses,  to  empower  such  committee 
to  consolidate  offices,  to  remove  any  of  the  officers 
and  appoint  others,  and  to  authorize  and  require 
the  directors  to  carry  out  the  recommendations 
of  the  committee  ;  2.  To  remove,  if  deemed  neces- 
auv  or  expedient,  any  of  the  present  directors, 
and  to  elect  directors  to  fill  any  vacancy  in  the 
bond.    The  directors  issued  a  notice  for  a  meeting 
"for  the  purpose  of  considering  and  determining 
upon  a  demand  of  the  requisitionists  for  the 
appointment  of  a  committee  to  inquire  into  the 
working  and  general  management  of  the  company 
and  the  means  of  reducing  the  working  expenses." 
The  requisitionistB  gave  notice  that  they  should 
not  attend  the  meeting,  as  the  notice  did  not 
provide  for  all  their  objects  ;  tbey  did  not  attend, 
and  they  then  themselves  issued  a  notice  under 
t  70  of  the  Companies  Clauses  Act,  calling  a 
meeting  for  the  purposes  mentioned  in  their 
requisition.     The  directors  brought  an  action  in 
the  name  of  the  company  to  restrain  the  requisi- 
uonJBts  from  holding  the  meeting : — Held,  by 
Kay,  J.,  that  everything  in  the  first  part  of  the 
requisition  beyond  the  appointment  of  a  com- 
mittee waa  illegal,  for  that  it  proposed  to  transfer 
the  powers  of  the  directors  to  a  committee,  and 
that  the  directors  were  therefore  justified  in  not 
entertaining  the  latter  part  of  the  first  head  of 
the  requisition ;    that  the  second  head  of  the 
requisition  was  too  vague  and  did  not  "  fully 
express  the  object  of  the  meeting,"  and  that  the 
directors  bad  no  power  to  call  a  meeting  for  that 
purpose,  whether  a  general  meeting  had  power 
to  remove  directors  or  not ;  and,  therefore,  that 
the  directors  had  not  failed  to  call  a  meeting 
within  the  meaning  of  the  Companies  Clauses 
Act,  1845,  s.  70 ;  that  the  power  of  the  share- 
holders to  call  it  had  therefore  not  arisen,  and 
that  an  injunction  must  be  granted.    But  held, 
on  appeal,  that  all  the  objects  of  the  first  part  of 
the  requisition     were    objects    that   could  be 
earned  oat  in  a  legal  way ;    that  the  court  will 
sot  restrain  the  holding  of  a  meeting  because  the 
ftrtice  calling  it  is  so  expressed  that  consistently 
with  its  terms  resolutions  might  be  passed  which 
would  be  ultra  vires,  and  that  the  directors  were 
aot  justified  in  excluding  from  their  notice  the 
objects  in  the  first  part  of  the  requisition  other 
than  the   appointment  of  a  committee;    that 
under  s.  91  of  the  Companies  Clauses  Act,  a 
general  meeting  has  power  to  remove  directors  ; 
that  a  notice  of  a  proposal  to  remove  "  any  of 
the  directors''  was  sufficiently  distinct;    that 
the  general  meeting  could  at  all  events  fill  up 
▼aeancies  in  the  board  if  all  the  directors  were 
removed  or  if  the  directors  declined  .to  exercise 
the  power  given  by  s.  89,  and  that  the  directors 
*we  therefore  bound  to  include  in  their  notice 
the  objects  mentioned  in  the  second  part  of  the 
requisition : — Held,  therefore,  that  the  requisi- 
tiooirts  were  entitled  to  call  a  meeting,  and  that 


the  injunction  must  be  discharged.  Isle  of 
Wight  Railway  v.  Tahourdin,  25  Ch.  D.  330  : 
53  L.  J.,  Ch.  853  ;  60  L.  T.  132  ;  32  W.  R.  297— 
C.A. 

Sight  of  Vendor-Director  to  Voto.  ]  — See  North- 
West  Transportation  Co.  v.  Beatty,  ante,  coL 
359. 

Resolution  to  Subscribe  Funds  to  Publie 
Objects — Ultra  Vires.] — At  a  meeting  of  the 
stockholders  or  proprietors  of  a  railway  company 
a  resolution  was  passed  authorizing  the  directors 
to  subscribe  a  sum  out  of  the  company's  funds  to- 
wards the  erection  of  the  Imperial  Institute  : — 
Held,  that  the  proposed  subscription  was  not 
prevented  from  being  ultra  vires  by  the  fact 
that  the  establishment  of  the  Institute  might 
benefit  the  company  by  an  increase  of  passenger 
traffic  over  their  line.  Tomkinson  v.  South- 
Eastern  Railway,  35  Ch.  D.  675  ;  56  L.  J.,  Ch. 
932  ;  56  L.  T.  812  ;   35  W.  R.  758— Kay,  J. 

Resolution  effecting  two  Objeoti — Purchase* 
by  Company  of  its  own  Shares — Reduction  of 
Capital.] — A  company  having  formed  a  scheme 
for  reducing  their  capital  by  the  purchase  of 
fully-paid  shares,  and  this  being  in  violation  of 
their  articles  of  association,  passed  a  resolution 
at  a  general  meeting:  "That  notwithstanding- 
anything  contained  in  the  articles,  the  directors- 
be  authorized  to  carry  out  the  following  com- 
promise or  modification  of  the  agreement  with 
the  vendors."  which  was  in  effect  to  cancel  12,000 
fully-paid  vendors'  51.  shares  upon  payment  of 
1/.  3«.  Ad.  per  share  : — Held,  that  this  resolution 
was  valid,  notwithstanding  that  the  effect  of  it 
was  to  carry  out  two  distinct  objects,  viz.,  to  set 
aside  for  the  purpose  of  this  transaction  the 
article  forbidding  the  purchase  of  shares,  and  to 
authorize  the  directors  to  carry  out  the  proposed 
scheme.  Imperial  Hydropathic  Hotel  Company 
v.  Hampson  (23  Ch.  D.  1)  discussed  and  ex- 
plained.  Taylor  v.  PUsen  Joel  and  General 
Electric  Light  Company,  27  Ch.  D.  268  ;  53  L.  J., 
Ch.,  856;  50  L.  T.  480;  33  W.  R.  134— 
Pearson,  J. 

Authority  of  Chairman.] — The  chairman  of  a 
general  meeting  has  prima  facie  authority  to 
decide  all  incidental  questions  which  arise  at  such 
meeting,  and  necessarily  require  decision  at  the 
time,  and  the  entry  by  him  in  the  minute  book 
of  the  result  of  a  poll,  or  of  his  decision  of  all 
such  questions,  although  not  conclusive,  is 
prima  facie  evidence  of  that  result,  or  of  the 
correctness  of  that  decision,  and  the  onus  of  dis- 
placing that  evidence  is  thrown  on  those  who- 
impeach  the  entry.  Indian  Zoedone  Co.,  In  ret 
infra. 

Where  the  chairman  at  a  confirmation  meeting- 
disallowed  certain  votes  which  had  been  given 
against  the  confirmation  of  a  resolution  passed 
at  the  first  meeting  appointing  a  liquidator,  the 
effect  of  such  disallowance  being  to  confirm  such 
resolution,  and  he  made  an  entry  in  the  minute 
book  that  such  resolution  had  been  confirmed, 
the  court,  in  the  absence  of  evidence  that  the 
votes  were  improperly  disallowed,  declined  to- 
question  the  decision  of  the  chairman.  But,, 
having  regard  to  the  unsatisfactory  state  of  the 
evidence,  the  Court  of  Appeal,  in  the  interest  of 
all  parties,  by  its  own  order  confirmed  the 
appointment  of  the  liquidator.    lb. 


407 


COMPANY — Actions  by  and  against  Companies. 


408 


Poll — Mode  of  Taking — Direction  of  Chair- 

*] — The  articles  of  association  of  a  company 
provided  (in  the  terms  of  art.  43  of  Table  A  to 
the  Companies  Act,  1862)  that  if  at  any  general 
meeting  of  the  company  a  poll  should  be 
demanded  it  should  be  taken  "  in  such  manner 
as  the  chairman  shall  direct."  A  poll  having 
been  demanded  at  a  meeting  summoned  to  con- 
sider a  resolution  for  a  voluntary  winding-up, 
the  chairman  directed  the  poll  be  taken  then 
and  there.  It  was  so  taken,  and  the  resolution 
was  carried  : — Held,  that  the  poll  had  been 
rightly  taken.  Beg.  v.  D'Oyly  (12  Ad.  &  E.  139), 
followed.  Observations  on  the  dicta  of  Jessel, 
M.B.,  and  Brett,  L J.,  in  Iforbury  Bridge  Coal, 
Iran,  and  Waggon  Company,  In  re,  (11  Ch.  D. 
109,  114).  Chilling  ton  Iron  Comjtany,  In  rt, 
Mansell,  Ex  parte,  29  Ch.  D.  159 ;  54  L.  J., 
Oh.  624 ;  52  L.  T.  504 ;  33  W.  R.  442— 
Kay,  J. 

Proxies.] — At  a  general  meeting  of  a  com- 
pany, where  by  its  articles  of  association  voting 
by  proxy  is  allowed,  proxies  cannot  be  used  upon 
a  show  of  hands,  but  a  poll  must  first  be  taken. 
Caloric  Engine  and  Siren  Fog  Signal*  Company, 
In  re,  52  L.  T.  846— Kay,  J. 

Confirmation  of  Special  Resolution—  "Not 
leaf  than  14  days."] — The  interval  of  not  less 
than  14  days  which  under  s.  51  of  the  Companies 
Act,  1862,  is  to  elapse  between  the  meetings 
passing  and  confirming  a  special  resolution  of  a 
•company  is  an  interval  of  14  clear  days,  exclusive 
of  the  respective  days  of  meeting,  and  therefore 
a  special  resolution  for  reduction  of  capital 
passed  at  a  meeting  held  on  the  25th  of 
February,  1885,  and  confirmed  at  a  meeting  held 
on  the  11th  of  March,  1885,  was  held  to  be  bad. 
Railway  Sleepers  Supply  Company,  In  re,  29 
Ch.  D.  204  ;  54  L.  J.,  Ch.  720  ;  52  L.  T.  731 ;  33 
W.  B.  595— Chitty,  J. 

If  the  interval  is  less  than  fourteen  clear 
•days,  the  statutory  defect  in  the  resolution  only 
affects  the  position  of  the  company  and  its 
shareholders,  inter  se,  and  does  not  concern  the 
creditors.  Thus,  where  a  director  of  a  company 
took  shares  in  new  capital  raised  under  a  resolu- 
tion passed  and  confirmed  at  meetings  the 
interval  between  which  was  thirteen  days  only, 
and  the  company  afterwards  went  into  liquida- 
tion, he  was  held  to  be  precluded  from  objecting 
to  the  validity  of  the  resolution  as  a  ground  for 
his  removal  from  the  list  of  contributories.  Bail- 
way  Sleepers  Svpply  Company,  In  re  (29  Ch.  D. 
204),  distinguished.  Miller's  bale  and  Ash  wood 
Dale  Lime  Company,  In  re,  31  Ch.  D.  211  ; 
56  L.  J.,  Ch.  203  ;  53  L.  T.  692  ;  34  W.  R.  192— 
V.-C.  B. 

Special  Resolution  requiring  Confirmation — 
Besolution  appointing  a  Liquidator— Notice.] — 
A  resolution  appointing  a  liquidator  is  operative 
only  when  there  is  an  effective  resolution  to  wind 
up.  Where  therefore  a  special  resol  ution  to  wind 
up  voluntarily,  which  requires  confirmation,  has 
been  passed  at  the  first  meeting,  although  it  is 
unobjectionable  to  pass  at  the  same  meeting  a 
resolution  appointing  a  liquidator,  the  latter 
resolution  by  itself  can  have  no  effect ;  and  if  at 
the  subsequent  meeting  the  latter  is  rejected  it  is 
immaterial,  and  the  principal  resolution,  i.e.,  to 
wind  up,  has  been  confirmed — nor  is  it  possible 
to  fall  back  upon  the  resolution  appointing  a 


liquidator  which  was  passed  at  the  first  meeting 
and  treat  it  as  binding.  Indian  Zoedone  Com- 
pany, In  re,  26  Ch.  D.  70  ;  53  L.  J.,  Ch.  468 ;  50 
L.  T.  547  ;  32  W.  R.  481—  C.  A. 


X.     ACTIOHS    BT   AJID    AGAINST 
COMPANIES. 

Liability  for  Maintenance.]  — A  corporation 
in  liquidation,  as  distinct  from  the  liquidator 
thereof,  is  incapable  of  maintenance.  Metro- 
politan Bank  v.  Pooley,  10  App.  Cas.  210;  54 
L.  J.,  Q.  B.  449  ;  63  L.  T.  168  ;  33  W.  R.  709 ; 
49  J.  P.  756— H.  L.  (E.). 

Contract  induced  by  Fraud  —  Authority  ef 
Secretary.] — The  secretary  of  a  company  has 
no  general  authority  to  make  representations  to 
induce  persons  to  take  shares  in  a  company  ;  so 
that  a  person  who  is  induced  to  take  shares  in  a 
company  by  a  fraudulent  misrepresentation,  not 
authorised  by  or  known  to  the  officers  of  the 
company  entitled  to  make  representations,  of  the 
secretary  of  a  company,  is  not  entitled  to  main- 
tain an  action  against  the  company  for  the 
rescission  of  the  contract,  or  for  damages  for 
such  misrepresentation.  Newlands  v.  National 
Employers  Aceident  Association,  54  L.  J.,  Q.  B. 
428 ;  53  L.  T.  242  ;  49  J.  P.  628— C.  A. 

Action  for  Maliciously  presenting  Petition.]— 
See  Malicious  Phosbcution. 

Defence  that  Action  not  required'for  beneficial 
Winding-up.]— By  s.  131  of  the  Companies  Act, 
1862,  a  company  which  is  being  wound  up  volun- 
tarily shall,  from  the  date  of  the  commencement 
of  such  winding-up,  cease  to  carry  on  its  business 
except  in  so  far  as  may  be  required  for  the  bene- 
ficial winding-up  thereof.  The  plaintiff  company 
sued  the  defendants  for  breach  of  contract.  The 
contract  was  of  a  kind  which  it  was  the  business 
of  the  company  to  make,  but  it  was  entered  into 
after  the  company  had  commenced  proceedings 
for  a  voluntary  winding-up.  The  contract  and 
the  breach  of  it  were  proved  : — Held,  that  it  lay 
on  the  defendants  to  snow  that  the  contract  was 
not  required  for  the  beneficial  winding-up  of  the 
company,  and  that  in  the  absence  of  such  evi- 
dence the  plaintiffs  were  entitled  to  succeed. 
Hire  Purehase  Furnishing  Company  v.  Bichen*, 
20  Q.  B.  D.  387 ;  58  L.  T.  460 ;  36  W.  B.  365- 
C.  A. 

In  an  action  by  a  company  in  voluntary  liqui- 
dation for  goods  sold  and  delivered  in  pursuance 
of  a  contract  entered  into  by  the  defendant  with 
the  liquidator: — Held,  that  the  fact  that  the 
contract  was  not  required  for  the  beneficial 
winding-up  of  the  company  within  the  meaning 
of  s.  131  of  the  Companies  Act,  1862,  did  not 
constitute  a  defence  to  the  action.  Batemam  v. 
Ball,  66  L.  J.,  Q.  B.  291— Pollock,  B. 

Liability  of  Liquidator  for  Costa.]—  See  infra, 
col.  420. 

Scire  facias— Director  named  in  Special  Act- 
Resignation — Debt  contracted  by  Company  before 
Resignation.]— A  railway  company  was  incor- 
porated bv  a  special  act  of  parliament,  passed 
on  the  18th  August,  1882.  In  s.  4  of  the  act  the 
defendant  was  described  as  a  promoter  of  the 
undertaking,  and  in  &  30  as  one  of  the  first 


409 


COMPANY—  Winding-up. 


410 


directors  of  the  company,  who  should  continue 
in  office  until  the  first  ordinary  meeting  held 
after  the  passing  of  the  act.    S.  28  required  that 
the  qualification  of  a  director  should  be  the 
possession  in  his  own  right  of  not  less  than  one 
hundred  shares  in  the  company.    The  defendant 
Attended  one  meeting,  and  on  the  23rd  December, 
1882,  sent  in  his  resignation  as  director  to  the 
board,  which  was  accepted  by  them  in  the  fol- 
lowing week.    The  defendant  took  no  other  part 
in  the  affairs  of  the  company.     The  defendant 
never  had  any  shares  alloted  to  him,  nor  was 
toy  register  of  shares  kept.    No  shares  were  ever 
taken  up  by  the  public,  and,  the  objects  of  the 
company  failing,  an  abandonment  act  was  ob- 
tained and  passed  in  August,  1885.    The  claim 
of  the  plaintiff  was  for  services  rendered  by  him 
is  a  surveyor  and  engineer  in  relation  to  and 
before  the  formation  of   the  company.      The 
plaintiff  brought  his  action  against  the  company, 
and  obtained  judgment  by  default  for  95/.  7«., 
and  6£  tir.  costs,  and  issued  a  writ  of  fi.  fa. 
against  the  company's  goods  for  the  purpose  of 
obtaining  satisfaction  of  the  judgment.     The 
sheriff's  return  to  the  writ  was  nulla  bona.    The 
plaintiff  then  applied   to  the  High  Court  for 
leave  to  issue  execution  against  the  defendant 
personally  under  8  Vict.  c.  16,  s.  36  :— Held,  that, 
as  the  resignation  by  the  defendant  was  bona 
fide,  H  was  a  surrender  of  his  inchoate  right  to 
take  shares,  and  operated  to  direst  him  of  any 
liability  attaching  to  the  holding  of  shares  ;  and 
leave  to  issue  the  execution  against  him  must 
be  refused.     Mammatt  v.  Brett,  54  L.  T.  165 
-D. 


XI.    W1HBIHG-UP. 
1.  WHAT  COMPANIES. 

Foreign  Company.] — There  is  no  jurisdiction 
■nder  the  Companies  Act,  1862,  to  wind  up  a 
foreign  company  which  has  carried  on  business 
in  England  by  means  of  agents,  but  which  has 
no  branch  office  of  its  own  here.  Lloyd  Qene- 
r*le  Ilaliano,  In  re,  29  Ch.  D.  219 ;  64  L.  J., 
Ch.  748  ;  S3  W.  R.  728— Pearson,  J. 

Braneh  in  England — Foreign  Liquida- 
te. ]— A  banking  company,  incorporated  and 
carrying  on  business  in  Australia,  had  a  branch 
office  in  London,  but  was  not  registered  in 
England.  The  company  had  English  creditors, 
and  assets  in  England.  Two  petitions  were 
presented  to  wind  up  the  company,  which  had 
topped  payment,  and  on  the  hearing  of  the 
petitions  an  order  was  made  appointing  a  pro- 
visional liquidator,  and  the  further  hearing  was 
ordered  to  stand  orer  for  a  time.  The  powers  of 
the  provisional  liquidator  were  limited  to  the 
taking  possession  of,  collecting  and  protecting 
tie  assets  of  the  company  in  England,  with 
liberty  to  apply  in  chambers.  When  the 
petitions  came  on  again  to  be  heard  it  appeared 
that  a  petition  to  wind  up  the  company  had 
Been  meanwhile  presented  in  Australia,  and 
*  provisional  liquidator  had  been  appointed 
there,  bat  it  was  not  proved  that  a  winding-up 
order  had  been  made: — Held,  that  there  was 
Jurisdiction  at  the  time  when  the  petitions  were 
presented  to  make  an  order  to  wind  up  the 
ttnpany,  and  that  the  jurisdiction  could  not  be 
■wted  by  subsequent  proceedings  in  Australia. 


A  winding-up  order  was  accordingly  made,  the 
order  appointing  the  provisional  liquidator  being 
continued,  with  the  same  restrictions  on  his 
powers,  the  judge  expressing  an  opinion  that 
the  winding-up  in  this  court  would  be  ancillary 
to  a  winding-up  in  Australia,  and  that,  if  the 
circumstances  remained  the  same,  the  powers  of 
the  official  liquidator  when  appointed  ought  to 
be  restricted  in  the  same  way.  Commercial 
Bank  of  Stwth  Australia,  In  re,  33  Ch.  D.  174  ; 
65  L.  J.,  Ch.  670  ;  56  L.  T.  609— North,  J. 

The  court  has  jurisdiction  under  s.  199  of  the 
Companies  Act,  1862,  to  wind  up  an  unregistered 
joint  stock  company,  formed,  and  having  its 
principal  place  of  business  in  New  Zealand, 
but  having  a  branch  office,  agent,  assets, 
and  liabilities  in  England.  The  pendency  of 
a  foreign  liquidation  does  not  affect  the  juris- 
diction of  the  court  to  make  a  winding-up  order 
in  respect  of  the  company  under  such  liqui- 
dation, although  the  court  will,  as  a  matter 
of  international  comity,  have  regard  to  the 
order  of  the  foreign  court.  Matheson,  In  re, 
27  Ch.  D.  225  ;  51  L.  T.  Ill ;  32  W.  R.  846— 
Kay,  J. 

It  being  alleged  that  proceedings  to  wind  up 
the  company  were  pending  in  New  Zealand,  the 
court,  in  order  to  secure  the  English  assets  until 
proceedings  should  be  taken  by  the  New  Zealand 
liquidators  to  make  them  available  for  the 
English  creditors  pari  passu  with  those  in  New 
Zealand,  sanctioned  the  acceptance  of  an  under- 
taking by  the  solicitor  for  the  English  agent  of 
the  company,  that  the  English  assets  should 
remain  in  statu  quo  until  the  further  order  of 
the  court.  Commercial  Bank  of  India,  In  re  (6 
L.  R.,  Eq.  517),  approved.    lb. 

Trade  Union.] — See  Tbadb. 

Incorporated  by  Royal  Charter— Statutory 
Power  to  Wind  up.] — A  company  incorporated 
by  royal  charter  can  be  wound  up  under  the 
Companies  Act,  1862.  Oriental  Bank  Corpora- 
tion, In  re,  54  L.  J.,  Ch.  481 ;  52  L.  T.  556— 
C.A. 

In  the  charter  of  a  company  incorporated  by 
royal  charter  in  1851  there  was  a  provision  that, 
"on  the  winding-up  of  the  affairs  of  the  cor- 
poration, all  and  every  the  proprietors  for  the 
time  being  of  any  interest  or  shares  in  the 
capital  thereof  shall  be  liable  to  contribute  to 
the  payment  of  the  debts  and  liabilities  of  the 
corporation"  to  the  extent  therein  mentioned. 
The  charter  also  contained  provisions  for  wind- 
ing the  corporation  up  in  the  event  of  a  loss  of 
a  certain  amount  of  the  capital,  or  in  the  event 
of  the  charter  being  revoked.  At  the  date  of 
the  grant  of  the  charter,  companies  incorporated 
by  royal  charter  could  be  wound  up  under 
statutory  powers : — Held,  that  the  expression 
"  winding-up  of  the  affairs  of  the  corporation  " 
applied  to  a  winding-up  under  the  statutory 
powers  for  the  time  being  in  force.    lb. 

Prescriptive  Corporation — Trust  for  Benefit  of 
Individual  Members— Fishery.] — A  company 
or  fraternity  of  free  fishermen  existed  from  time 
immemorial  within  the  manor  of  F.,  all  the 
members  of  which  were  admitted  tenants  of  the 
manor,  and  took  an  oath  of  homage  to  the  lord. 
No  grant  to  the  company  as  a  corporation  was  in 
existence,  but  from  numerous  ancient  documents 
it  appeared  that  the  company  had  the  exclusive 


411 


COMPANY—  Winding-up. 


412 


right  of  dredging  for  oysters  and  taking  other 
kinds  of  fish  within  the  manor,  for  which  it  paid 
a  rent  of  £13*.  4d.  to  the  lord.  By  an  act 
passed  in  1840  it  was  recognised  as  a  company  in 
the  nature  of  a  prescriptive  corporation,  and  it 
was  recited  that  the  members  had  time  out  of 
mind  dredged  oysters  exclusive  of  all  other 
persons,  and  that  the  fishery  was  of  great  benefit 
to  the  public ;  it  was  thereby  enacted  that  the 
■company  might  exercise  all  the  powers  then 
vested  in  it,  and  fresh  powers  of  raising  money 
and  charging  the  profits  of  the  fishery  by  way  of 
mortgage  were  given  it,  the  form  of  mortgage 
•containing  no  power  of  sale.  Rules  were  laid 
down  for  the  management  of  the  company,  but 
it  was  provided  that  nothing  in  the  act  should 
be  construed  to  incorporate  the  company.  The 
-company  made  bye-laws  for  the  regulation  of 
the  dredging  of  oysters,  and,  subject  to  these 
bye-laws  the  privilege  of  dredging  and  fishing  was 
•enjoyed  by  the  members  for  their  own  benefit. 
A  petition  having  been  brought  by  a  creditor  for 
winding  up  the  company  : — Held,  that  the  com- 
pany was  a  corporation  in  which  the  exclusive 
right  of  fishing  within  the  manor  was  vested ; 
but  that  the  corporation  held  the  right  on  a  con- 
dition or  trust  for  the  individual  members  ;  and 
that  if  the  company  was  wound  up  this  right  of 
fishing  could  not  be  sold  by  the  liquidator,  and 
therefore  the  winding-up  order  would  be  useless. 
The  court  accordingly  refused  to  make  any  order 
for  winding  up.  Free  Fishermen  of  Faversham, 
In  re,  36  Ch.  D.  329 ;  57  L.  J.,  Ch.  187  ;  57  L.  T. 
677— C.  A. 

Unregistered  Tramway  Company.] — An  un- 
registered tramway  company  incorporated  by  a 
-special  act  does  not  fall  within  the  exception  of 
"railway  companies  incorporated  by  act  of 
parliament"  in  s.  199  of  the  Companies  Act, 
1862,  and  it  may  therefore  be  wound  up  under 
that  section.  Brentford  and  IsUworth  Tram- 
ways Company,  In  re,  26  Ch.  D.  527  ;  53  L.  J., 
Ch.  624;  50  L.  T.  580;  32  W.  R.  895— 
v.-C.  B. 

Unregistered  Company— More  than  Seven 
41  Members."] — Though  an  unregistered  com- 
pany within  the  meaning  of  s.  199  of  the 
Companies  Act,  1862,  must  consist  of  more  than 
•seven  "  members,"  the  expression  "members"  as 
used  in  that  section  does  not  necessarily  mean 
4*  shareholders."  South  London  Fish  Market 
Company,  In  re,  39  Ch.  D.  324  ;  60  L.  T.  68  ;  37 
W.  R.  3  ;  1  Meg.  92— C.  A. 

Statutory  Members— Directors',  qualification 
ahares — Transfer.] — A  company  was  incor- 
porated by  a  special  act  of  parliament  in  1882, 
eight  persons  being  the  first  members.  These 
■eight  persons  were  appointed  the  first  directors 
of  the  company  "  to  continue  in  office  until  the 
first  ordinary  meeting  held  after  the  passing  of 
the  act,"  each  director  holding  forty  snares  as  a 
qualification.  The  petitioners  were  the  Vestry 
of  St.  Mary,  Newington,  who  had  recovered 
judgment  in  an  action  for  penalties  against  the 
company  in  consequence  of  the  company  not 
having  completed  certain  works  by  a  stipulated 
time.  No  "  first  ordinary  meeting "  was  ever 
held,  but  after  action  brought,  at  a  meeting  of 
the  directors,  the  directors  allotted  to  themselves 
the  forty  qualification  shares  to  be  held  by  each. 
The  shares  were  of  the  value  of  25/.  each,  and 


a  call  of  51.  per  share  was  paid  on  the  20th  July, 
1887,  and  that  sum  was  expended  in  paying  the 
costs,  charges,  and  expenses  preliminary  to,  and 
of  and  incidental  to,  the  passing  of  the  special 
act.  On  the  21st  July,  1887,  five  of  the  directors 
transferred  their  shares  to  a  nominee.  No  other 
shares  in  the  company  beyond  the  directors' 
qualification  shares  were  ever  subscribed  for. 
The  vestry  having  obtained  judgment  against 
the  company  presented  a  petition  for  winding 
up  : — Held,  that  the  transfers  by  the  directors  of 
their  qualification  shares  were  invalid,  and, 
therefore,  that  there  were  eight  members  of  the 
company,  and  the  company  came  within  the 
199th  section  of  the  Companies  Act,  1862.  On 
appeal,  the  court  held  that  on  the  construction 
of  the  special  act,  the  eight  persons  were  con- 
stituted statutory  members  as  well  as  statutory 
directors,  with  an  obligation  to  continue  to  hold 
both  characters  until  the  first  general  meeting ; 
that,  therefore,  as  no  first  meeting  had  been 
held,  these  eight  persons,  whether  they  continued 
to  be  holders  of  shares  or  not,  at  all  events  still 
continued  to  be  members  of  the  company,  and, 
therefore,  there  was  jurisdiction  under  section 
199  of  the  Companies  Act,  1862,  to  make  the 
winding-up  order.    lb. 

Suspension  of  Business — Majority  of  Shart- 
holders.] — Although  there  may  be  a  suspension 
of  the  business  of  a  company  for  the  space  of  a 
whole  year,  the  court  will  not  make  an  order, 
under  sub-s.  2  of  s.  79  of  the  Companies 
Act,  1862,  to  wind  up  the  company,  unless  it  is 
satisfied  that  there  has  been  an  intention  on  the 
part  of  the  company  to  abandon  its  business,  or 
inability  to  carry  it  on  ;  and  upon  the  question 
of  such  intention  the  court  will  have  regard  to 
the  opinion  and  wishes  of  the  majority  of  the 
shareholders  whose  names  are  on  the  register. 
Tomlin  Patent  Horse  Shoe  Co.,  In  re,  55  L.  T. 
314— Chitty,  J. 


2.  ORDERS  FOR. 

Supervision  Order  or  Compulsory  Order- 
Wishes  of  Creditors.] — A  petition  for  the  com- 
pulsory winding  up  of  a  company  having  been 
presented  by  a  creditor,  if,  at  the  hearing  of  the 
petition,  the  petitioner  asks  only  for  a  super- 
vision order : — Semble,  that  s.  149  of  the  Com- 
panies Act,  1862,  does  not  authorize  the  court, 
even  at  the  request  of  a  majority  of  the  creditors, 
to  order  a  compulsory  winding-up  against  the 
wish  of  the  petitioner.  Chepstow  Bobbin  3ffll* 
Company,  In  re,  36  Ch.  D.  563 ;  67  L.  J.,  Ch. 
168  ;  67L.  T.  752  ;  36  W.  R.  180— North,  J. 

Sight  of  Creditor  to  Compulsory  Order.]— 

Section  145  of  the  Companies  Act,  1862,  which 
provides  that  the  voluntary  winding-up  of  a 
company  shall  be  no  bar  to  the  right  of  a  creditor 
to  have  it  wound  up  by  the  court  if  the  court  is 
of  opinion  that  his  rights  will  be  prejudiced  by 
a  voluntary  winding-up,  applies  whether  the 
voluntary  winding-up  commenced  before  or  after 
the  presentation  of  the  petition.  New  York 
Exchange,  In  re,  39  Ch.  D.  415  ;  58  L.  J.,  Ch. 
Ill ;  60  L.  T.  66  ;  1  Meg.  78—0.  A. 

A  creditor  presented  a  winding-up  petition  on 
the  17th  of  December,  1887.  Three  days  before 
this  the  company  had  sent  him  an  account  show- 
ing assets  2,5002.,  and  liabilities  5,000/.     On  the 


413 


COMPANY—  Winding-up. 


414 


36th  of  January,  1888,  the  company  passed  an 
extraordinary  resolution  for  winding-up.  On 
the  28th  of  January  the  petition  was  ordered  to 
stud  over  with  liberty  to  the  petitioner  to  bring 
inaction,  which  he  did.  On  the  30th  of  April 
the  voluntary  liquidator  withdrew  his  defence 
in  the  action  on  the  ground  that  there  were  no 
assets.  When  the  petition  came  on  again,  the 
court  refused  to  make  a  winding-up  order,  but 
directed  the  yoluntary  winding-up  to  be  con- 
tinued under  supervision.  The  petitioner  ap- 
pealed :— Held,  on  appeal,  that  this  order  must 
he  affirmed,  for  that  the  only  possible  advantage 
of  a  compulsory  order  would  be  its  relation  back 
to  the  17th  of  December,  and  that  therefore  the 
voluntary  winding-up  could  not  prejudice  the 
right*  of  the  creditor  unless  assets  had  been 
misapplied  between  the  17th  of  December,  1887; 
and  the  26th  of  January,  1888,  and  that  if  the 
creditor  relied  on  this,  he  ought  to  have  made 
out  at  the  hearing  in  the  court  below  a  prima 
facie  case  of  misapplication  of  assets  during  that 
period.    lb. 

Although  as  a  general  rule  an  unpaid  creditor 
of  a  company  which  cannot  pay  its  debts  is  en- 
titled to  a  winding-up  order,  that  order  will 
not  be  made  when  it  is  shown  that  the  peti- 
tioning creditor  cannot  gain  anything  by  a 
winding-up  order,  and,  a  fortiori,  it  will  not  be 
made  under  those  circumstances  if  the  other 
creditors  oppose  it.  Uruguay  Central  and 
Rygueritas  Railway  Company  of  Monte  Video, 
I*rc(\l  Ch.  D.  372),  approved.  The  91st  sec- 
tion of  the  Companies  Act,  1862,  is  not  confined 
to  cases  where  a  winding-up  order  has  been 
made,  but  applies  also  where  a  petition  for 
winding-up  is  before  the  court.  Chapel  House 
CoUUry  Company,  In  re,  24  Ch.  D.  259  ;  52 
L.  J.  Ch.  935  ;  49  L.  T.  575  ;  31  W.  R.  993— 
C.A. 

Tne  colliery  belonging  to  a  colliery  company 
was  subject  to  a  large  mortgage  payable  by 
instalments,  and  all  its  assets  had  been  assigned 
to  trustees  upon  trust  for  its  debenture  holders, 
who  had  no  present  right  of  action  against  the 
company  for  the  principal  of  their  debts,  Which 
was  not  payable  till  1885,  but  only  for  the  arrears 
of  interest,  which  were  considerable.  The  col- 
liery was  not  worth  so  much  as  the  mortgage 
money,  but  it  was  worked  at  a  profit,  and  the 
instalments  of  the  mortgage  debt  were  being 
paid,  but  nothing  was  left  to  pay  interest  to  the 
debenture  holders.  There  appeared,  however,  to 
be  reason  to  think  that  if  the  business  were  con- 
tinued, and  the  coal  trade  improved,  there  would 
be  something  for  the  debenture  holders.  The 
colliery  was  leasehold  and  liable  to  forfeiture  if 
the  company  was  wound  up.  A  holder  of  de- 
bentures to  a  small  amount  presented  a  petition 
to  wind  up  the  company,  the  debt  on  the  footing 
of  which  he  petitioned  being  the  arrears  of  interest 
on  his  debentures.  A  vast  majority  of  the  other 
debenture  holders  opposed  the  petition,  and  none 
of  them  supported  it.  Kay,  J.,  thought  the  case 
■ot  a  proper  one  for  making  a  winding-up  order, 
but  directed  the  petition  to  stand  over  for  six 
months: — Held,  on  appeal,  that  the  petition 
ought  to  be  dismissed  at  once.    lb. 


3.  PETITIONS. 

a.  By  whom  Presented. 

tuemtar — Probate   obtained  after   Prtsen- 
]— The  executor  of  a  creditor  of  a  com- 


pany is  entitled  to  present  a  winding-up  petition 
before  he  has  obtained  probate  ;  it  is  sufficient  if 
he  has  obtained  probate  before  the  hearing  of 
the  petition.  Masanic  and  General  Life  Assur- 
ance Company,  In  re,  32  Ch.  D.  373  ;  55  L.  J., 
Ch.  666  ;  34  W.  R.  739— Pearson,  J. 

Debenture-holder.] — A  company  issued  deben- 
tures payable  to  bearer,  the  payment  of  which 
was  secured  by  a  deed  by  which  the  company 
purported  to  assign  all  their  present  and  future 
property  to  trustees,  on  trust  for  the  benefit  of 
the  debenture-holders,  and  covenanted  with  the 
trustees  for  payment  of  the  principal  and  interest 
of  the  debentures.  By  the  debentures  the  com- 
pany agreed  to  pay  the  amount  thereby  secured 
to  the  bearer : — Held,  that  the  holder  of  some  of 
the  debentures,  the  interest  on  which  was  over- 
due (the  debentures  having  been  deposited  with 
him  by  the  original  bolder  as  security  for  a  debt) 
was  entitled  to  petition  for  the  winding-up  of 
the  company.  Uruguay  Central  and  Hyguerita* 
Railway  Company  of  Monte  Video,  In  re  (11 
Ch.  D.  372)  distinguished.  Olathe  Silver  Mining 
Company,  In  re,  27  Ch.  D.  278  ;  33  W.  R.  12— 
Pearson,  J. 

b.  Practice. 

Title  —  Mistake  —  Amendment  —  Advertise- 
ment.]—  A  winding-up  order  had  been  pro- 
nounced on  a  petition  intituled,  "  la  the 
matter  of  the  A.  and  N.  Hotel  Company, 
Limited."  Subsequently,  before  the  order  was 
drawn  up,  the  petitioners  discovered  that  the 
word  "  company  did  not  form  part  of  the  regis- 
tered title  of  the  company,  though  the  company 
had  themselves,  while  carrying  on  business, 
usually  adopted  the  word.  Thereupon,  on  an 
ex  parte  application  by  the  petitioners,  the 
court  made  an  order  giving  leave  to  amend  and 
re-advertise  the  petition,  and  directing  the 
winding-up  order  to  be  drawn  up  seven  days 
after  the  advertisement.  A  motion  by  the  com- 
pany, to  discharge  the  ex  parte  order  was  dis- 
missed with  costs.  Army  and  Navy  Hotel,  In 
re,  31  Ch.  D  644  ;  55  L.  J.,  Ch.  370,  511 ;  34  W. 
R.  389— V.-C.  B. 

Service — Ho  Registered  Office.] — Where  a 
petition  was  presented  by  two  creditors  and 
two  shareholders  for  the  winding-up  of  a  com- 
pany which  had  no  registered  office  or  place  of 
business,  and  which  had  only  eight  shareholders 
altogether,  the  court  held  (on  an  ex  parte  appli- 
cation for  directions  how  to  serve  the  petition) 
that  the  petition  should  be  served  on  the  secre- 
tary and  two  principal  shareholders,  and  that 
letters  should  be  sent  to  the  other  shareholders 
(not  being  also  petitioners)  informing  them  of 
the  petition.  Keswick  Old  Brewery  Co,,  In  re, 
55  L.  T.  486— Chitty,  J. 

Affidavit— Time  of  Filing— Sunday.]— In  the 
computation  of  the  time  within  whicn  an  affi- 
davit verifying  a  petition  to  wind  up  a  company 
must  be  filed  under  rule  4  of  the  Companies 
Rules  of  1862,  Sunday  is  not  to  be  reckoned. 
Yeoland  Consols,  In  re,  58  L.  T.  108— Stirling,  J. 

Security  for  Costs.] — A  company  against  whom 
a  winding-up  petition  had  been  presented  ap- 
plied that   the    petitioner,  who  was   resident 


1 


415 


COMPANY—  Winding-up. 


416 


abroad,  might  be  ordered  to  give  security  for 
costs.  The  petitioner  had  obtained  judgment  in 
an  undefended  action  against  the  company  : — 
Held,  that  no  security  need  be  given.  Contract 
and  Agency  Corporation,  In  re,  57  L.  J.,  Ch.  5 
— Stirling,  J. 

A  petitioner  for  the  winding-up  of  a  company, 
who  has  given  a  business  address  at  which  he 
cannot  be  found,  and  whose  solicitor  is  unable 
to  state  his  private  address,  will  be  ordered  to 
give  security  for  costs.  Sturgis  (British)  Motor 
Power  Syndicate,  In  re,  53  L.  T.  715  ;  34  W.  R. 
163— Chitty,  J. 

Transfer  to  London.]— Ord.  XXXV.  r.  16,  pro- 
vides that,  "  In  any  case  not  provided  for  by 
rules  13  and  14,  any  party  to  a  cause  or  matter 
proceeding  in  a  district  registry  may  apply  to 
the  court  or  a  judge,  or  to  the  district  registrar, 
for  an  order  to  remove  the  cause  or  matter  from 
the  district  registry  to  London,  and  the  court, 
judge,  or  registrar  may  make  an  order  accord- 
ingly, if  satisfied  that  there  is  sufficient  reason 
for  doing  so,  upon  such  terms,  if  any,  as  shall  be 
just."  Circumstances  under  which  an  order  for 
transfer  to  the  High  Court  will  not  be  made. 
Neath  and-  Bristol  Steamship  Company,  In  re, 
58  L.  T.  180— Kekewich,  J. 

Judgment  Creditor — Discretion  of  Court — 
Evidence  of  Collusion.] — Where,  upon  the  hear- 
ing of  a  winding-up  petition  presented  by  a 
judgment  creditor,  evidence  is  before  the  court 
upon  which  the  issue  of  whether  the  judgment 
was  or  was  not  obtained  by  collusion  can  be 
decided,  the  petition  will  be  forthwith  disposed 
of,  notwithstanding  that  the  judgment  has  not 
been  impeached  in  an  action  at  law.  United 
Stock  Exchange,  In  re,  51  L.  T.  687 — Pearson,  J. 

Two  Petitions— Carriage  of  Order.] — Although, 
as  a  general  rule,  where  two  petitions  are  pre- 
sented for  the  winding-up  of  a  company,  and  an 
order  for  winding-up  is  made  on  both  petitions, 
the  carriage  of  the  order  is  given  to  the  first 
petitioner,  the  rule  does  not  bind  the  judge  be- 
fore whom  the  rival  petitions  come ;  but  he  has 
a  discretion  as  to  which  petitioner  shall  have  the 
carriage,  and  he  may,  under  s.  98  of  the  Com- 
panies Act,  1862,  direct  a  meeting  of  con  tribu- 
taries to  be  held  to  take  their  opinion  as  to  which 
petitioner  shall  have  the  carriage.  Cunningham 
*  Co.,  In  re,  53  L.  J.,  Ch.  246  ;  50  L.  T.  246— 

\y.  A. 

Petition  Advertised  for  Hearing  on  Holi- 
day—Subsequent Petition.]— Where  the  hearing 
of  a  petition  for  the  compulsory  winding-up  of  a 
company  had.  by  inadvertence,  been  advertised 
for  a  legal  holiday,  and  by  direction  of  the 
court  new  advertisements  were  issued,  the 
court  refused  to  make  an  order  upon  the 
petition  of  an  incumbrancer  who  with  notice 
of  the  filing  of  the  first  petition  issued  adver- 
tisements for  the  hearing  of  a  second  petition, 
which  owing  to  the  above-mentioned  mistake, 
obtained  priority  in  date  to  those  advertising 
the  first  petition.  Dublin  Grains  Company, 
In  re,  Braine,  Ex  parte,  17  L.  R.,  Ir.  512 — 
V.-C. 

o.     Costs. 
Supervision  Order— Petition— Appearance  by 


Company.] — Where,  after  the  commencement  of 
the  voluntary  winding-up  of  a  company,  a  peti- 
tion is  presented  for  the  continuance  of  the 
winding-up  under  supervision,  the  company 
ought  to  appear  by  the  liquidator,  and  the  costs 
of  a  separate  appearance  ought  not  to  be  allowed. 
Hall  #  Co.,  In  re,  53  L.  T.  633  ;  34  W.  R.  56- 
Kay,  J. 


Creditor!  Supporting  Petition.]— A  peti- 


tion having  been  presented  by  a  creditor  for  the 
compulsory  winding-up  of  a  company,  the  peti- 
tioner at  the  hearing  asked  for  a  supervision 
order,  and  that  order  was  made : — Held,  that 
creditors  who  appeared  and  asked  for  a  compul- 
sory order  were  entitled  to  costs  as  supporting 
the  petition.  Chcpstoto  Bobbin  Mills  Company, 
In  re,  36  Ch.  D.  563  ;  57  L.  J.,  Ch.  168 ;  57  L.  T. 
752  ;  36  W.  R.  180— North,  J. 


Dismissal  on  Application  of 
holders  and  Creditors.]---Where  a  winding-up 
petition  is  dismissed  on  the  application  of  the 
petitioner,  shareholders  and  creditors  appearing 
either  to  oppose  or  support  the  petition  are 
entitled  to  their  costs.  Jabloehkoff  Electric 
Light  and  Power  Company,  In  re,  (32  W.  B. 
168)  distinguished.  Nacupai  Gold  Mining  Com- 
pany, In  re,  28  Ch.  D.  65 ;  64  L.  J.,  Ch.  109 ;  51 
L.  T.  900  ;  33  W.  R.  117— Chitty,  J. 

Where  a  shareholder  presented  a  petition  for 
winding-up  a  company,  but  when  the  matter 
was  in  the  paper  for  the  day  the  petitioner  de- 
sired to  withdraw,  and  the  other  parties  did  not 
oppose,  the  court  made  no  order  as  to  costs. 
Jabloehkoff  Electric  Light  and  Power  Company, 
In  re,  49  L.  T.  566  ;  32  W.  R.  168— Pearson,  J. 

Where  at  the  hearing  of  a  winding-up  petition 
the  petitioner  elects  to  withdraw  his  petition, 
and  have  it  dismissed  with  costs,  shareholders 
and  creditors,  whether  appearing  to  support  or 
oppose  the  petition,  are  entitled  to  separate  sets 
of  costs.  North  Brazilian  Sugar  Factories,  /» 
re,  56  L.  T.  229— Chitty,  J. 

As  a  general  rule  a  petitioner  who  withdraws 
his  petition  for  the  winding-up  of  a  company 
will  be  ordered  to  pay  costs  of  the  parties  ap- 
pearing. But  the  rule  is  not  an  inflexible  one, 
and  the  court  will  have  regard  to  the  circum- 
stances of  each  case.  District  Bank  of  London* 
In  re,  36  Ch.  D.  576  ;  56  L.  J..  Ch.  774 ;  57 
L.  T.  475  ;  35  W.  R.  664— North,  J. 

Withdrawal   of  Unadvertised    Petition.  ]-A 

winding-up  petition  had  appeared  in  the  court 
paper  from  time  to  time  wnich  had  never  been 
advertised  :— Held,  that  the  petition  could  be 
withdrawn  without  payment  of  the  costs  of  a 
shareholder  appearing  to  oppose.  United  Stock 
Exchange,  In  re,  Philp,  Ex  parte,  28  Ch.  D. 
183  ;  54  L.  J.,  Ch.  310  ;  62  L.  T.  509  ;  33  W.  R. 
389— Pearson,  J. 

Dismissal  with  Costs  against  Company— Cre- 
ditors appearing  separately.]  —  A  creditor's 
winding-up  petition  having  by  arrangement 
stood  over,  it  was  ultimately,  at  the  request  of 
the  petitioner,  dismissed  with  costs  as  against 
the  company,  the  company  having  paid  the  peti- 
tioner's debt  and  costs.  One  of  the  two  cre- 
ditors who  appeared  separately  to  support  the 
winding  up  had,  since  the  petition  stood  over, 
been  paid  part  of  his  debt,  but  the  other  had 
not  received  anything  :— Held,  that,  under  such 


417 


COMPANY—  Winding-up. 


418 


circumstances,  the  proper  order  was  to  give  one 
set  of  costs,  bat  to  give  such  costs  entirely  to  the 
creditor  who  bad  gained  nothing  by  the  proceed- 
ings, to  the  exclusion  of  the  creditor  who  had 
been  paid  his  debt  in  part.  Peckham  Tram- 
wyf  Company,  In  re,  57  L.  J.,  Ch.  462 ;  58 
L.  T.  876— Chitty,  J. 

Second  Petition— When  Allowed.] — A  second 
petitioner,  on  whose  application  a  provisional 
liquidator  had  been  appointed,  was  allowed  his 
costs,  notwithstanding  that  he  had  presented  his 
petition  with  notice  of  the  first,  on  the  ground 
that  his  petition  had  benefited  the  creditors. 
Commercial  Bank  of  South  Australia,  In  re. 
33  Ch.  D.  147  ;  65  L.  J.,  Ch.  670  ;  65  L.  T.  609 
-North,  J. 


4.  STAYING  AND  RESTRAINING  PRO- 
CEEDINGS. 

iftien  against  Liquidators  in  Personal  Ca- 

•utty.]— An  order  having  been  made  for  the 
winding-up  of  an  unregistered  company  under 
the  Companies  Act,  1862,  the  court  directed 
under  s.  203  of  the  act  that  certain  land  which 
vis  vested  in  trustees  for  the  company,  subject 
to  a  rent-charge,  should  vest  in  the  official 
liquidators,  appointed  for  the  purposes  of  the 
winding-up,  by  their  official  name. — The  plain- 
tiffs, the  owners  of  the  rent-charge  upon  such 
land,  sued  the  liquidators  in  their  personal  ca- 
pacity to  recover  arrears  of  the  rentcharge  from 
them  as  terre-tenants  : — Held,  that  such  action 
ought  to  be  stayed  as  being  manifestly  ground- 
less. Graham  v.  Edge,  20  Q.  B.  D.  683 ;  57  L. 
J.,Q.R  406  ;  58  L.  T.  913  ;  36  W.  R.  529— C.  A. 

Tthnitary  Winding-up — Special  Resolution 
— Petition  by  Liquidator.] — A  company  having 
pone  into  voluntary  liquidation,  a  petition  was 
presented  by  the  liquidator  to  stay  all  proceed- 
ings in  the  winding-up  with  a  view  to  the 
reconstruction  of  the  company.  Sect.  89  of  the 
Companies  Act,  1862,  gives  the  court  power  after 
an  order  for  winding-up  a  company,  upon  the 
application  of  a  creditor  or  contributory,  to 
make  an  order  staying  proceedings  in  the 
winding-up;  and  sect.  138  of  the  same  act 
gives  power  to  the  liquidator  or  contributories 
in  a  voluntary  winding-up  to  apply  to  the  court 
when  any  question  arises,  in  the  same  way  as 
when  any  question  arises  in  the  case  of  a  com- 
pulsory winding-no  or  a  winding-up  under 
supervision : — Held,  that  under  those  sections 
the  court  had  jurisdiction  to  make  an  order  as 
*sked,the  court  being  satisfied  with  the  evidence 
sa  to  the  assent  of  the  creditors.  Titian  Steam- 
sty  Company,  In  re,  58  L.  T.  178 ;  36  W.  R. 
347-Chitty,  J. 

Threatened  Aotion — Supervision  Order.] 

—An  old  company  was  wound  up  voluntarily,  by 
nsolntion  of  the  shareholders,  for  the  purpose 
rf  forming  a  new  company  of  the  same  name, 
*mch  is  still  flourishing.  Upon  threat  of  action 
•jBunst  the  old  company,  the  liquidator  peti- 
tioned the  court  to  continue  the  voluntary 
*inding-up  of  the  old  company  under  super- 
vision :— Held,  that  the  liquidator  was  entitled 
*>  the  protection  of  the  court  under  ss.  87  and 
Ul  of  the  Companies  Act,  1862,  and  that  s.  138 
did  not  apply  to  the  threat  of  an  action  made 


subsequent  to  and  outside  the  voluntary  winding, 
up.  Zoedone  Company,  In  re,  53  L.  J.,  Ch.  465  ; 
49  L.  T.  654  ;  32  W.  R.  312— V.-C.  B. 

Order  restraining  Creditor's  Actions — Scotch 
Aotion  —  Assets  in  Scotland.]  —  A  company 
having  its  registered  office  in  England,  but 
having  also  assets  in  Scotland,  passed  a  resolu- 
tion for  a  voluntary  winding-up.  Creditors  in 
Scotland  having  commenced  actions  against  the 
company,  a  petition  was  presented  by  certain 
others  of  the  English  creditors,  asking  that  the 
winding-up  might  be  continued  under  the  super- 
vision of  the  court ;  and  upon  such  petition 
coming  on  to  be  heard,  an  application  was  made 
ex  parte  that  the  actions  commenced  by  the 
creditors  might  be  restrained.  The  court  granted 
the  petition,  and  also  made  an  order  restraining 
the  actions  in  question.  Middlesborougk  Fire- 
brick  Company,  In  re,  52  L.  T.  98 ;  33  W.  R. 
339— Pearson,  J. 

Early  in  the  year  1877  the  Australian  Invest- 
ment Company,  a  Scotch  company  having  their 
registered  offices  in  Edinburgh,  brought  an 
action  in  Scotland  against  the  Queensland 
Mercantile  Agency  Company,  an  Australian 
company  having  their  registered  office  in  Bris- 
bane, claiming  to  recover  from  the  Queensland 
company  money  which  the  Scotch  company  had 
sent  out  for  investment,  and  which  had  been, 
as  the  Scotch  company  alleged,  lost  by  fraudu- 
lent or  improper  investment.  For  the  purpose 
of  founding  jurisdiction,  arrestment  had  been 
made  in  Scotland  of  unpaid  capital  on  shares  of 
the  Queensland  company  held  in  Scotland.  The 
pleadings  in  the  Scotch  action  were  closed  in 
May,  1887.  In  Oct.,  1887,  an  order  to  wind  up 
the  Queensland  company  was  made  by  the 
court  in  Queensland,  and  shortly  afterwards  an 
order  to  wind  up  the  same  company  was  made  in 
England,  and  directed  to  be  ancillary  to  the 
order  of  the  colonial  court.  The  English  liqui- 
dator moved  to  stay  the  proceedings  in  the 
Scotch  action,  and  the  Scotch  company  made  a 
cross-motion  that  their  action  might  be  allowed 
to  proceed,  notwithstanding  the  winding-up : — 
Held,  that  it  was  more  convenient  that  the 
matter  should  be  investigated  in  the  liquidation 
than  in  the  Scotch  action,  and  that  if  the  Aus- 
tralian company  had  gained  any  priority  or 
security  by  virtue  of  the  process  of  arrestment 
it  could  be  preserved  in  the  winding-up.  There 
was,  therefore,  no  reason  for  allowing  the  Scotch 
proceedings  to  continue,  and  they  must  be 
stayed.  Queensland  Mercantile  Agency  Com- 
pany, In  re,  68  L.  T.  878— North,  J. 

Restraining  Scotch  Solicitor  from  Interfering 
with  Assets  for  Work  done.] — The  solicitors  of 
the  official  liquidator  of  a  company  in  liquida- 
tion in  England  employed  a  solicitor  in  Scotland 
as  their  agent  to  get  in  the  Scotch  assets,  upon 
condition  that  they  should  not  be  personally 
liable  for  his  costs,  but  that  he  must  look  to  the 
assets  only  for  payment.  The  solicitor  in  Scot- 
land afterwards  commenced  proceedings  in  the 
Scotch  courts  against  the  official  liquidator  to 
obtain  payment  of  his  costs,  and  also  arrested 
certain  Scotch  assets  of  the  company  in  the 
hands  of  auctioneers  in  Scotland: — Held,  on  a 
motion  by  the  official  liquidator  for  an  injunc- 
tion to  restrain  the  Scotch  solicitor  from  taking 
further  proceedings,  that  the  proceedings  against 
the  official  liquidator  and   the  arrest  of   the 

P 


419 


COMPANY—  Winding-up. 


420 


Scotch  assets  were  wrong,  and  an  injunction 
was  granted.  Hermann  Loog,  In  re,  Ramsay's 
Case,  36  Ch.  D.  502  ;  58  L.  T.  47  ;  35  W.  R.  687 
— North,  J. 


„  Criminal  Proceeding!  for  Penal- 
ties.]—A  petition  had  been  presented  for  the 
winding-up  of  a  company,  but  before  any  order 
was  made  for  that  purpose  summonses  were 
taken  out  at  a  police-court  against  the  company, 
by  a  person  not  interested  in  the  affairs  of  the 
company,  to  recover  penalties  for  alleged  offences 
under  the  Companies  Act,  1862,  and  the  Life 
Assurance  Companies  Act,  1870.  On  motion  for 
an  injunction  to  restrain  the  proceedings  against 
the  company  before  the  magistrate,  the  court 
held,  that  it  had  jurisdiction  under  the  85th 
section  of  the  Act  of  1862,  and  made  the  order. 
Briton  Medical  and  General  Life  Assurance 
Association,  In  re,  32  Ch.  D.  503  ;  55  L.  J.,  Ch. 
416 ;  54  L.  T.  152 ;  34  W.  R.  390— Kay,  J. 

Restraining  Summons  for  Poor  Rates.]  — 
Where  a  petition  has  been  presented  for  the 
winding-up  of  a  company  the  court  has  juris- 
diction under  s.  85  of  the  Companies  Act,  1862, 
to  restrain  proceedings  on  a  summons  for  the 
enforcement  of  poor  rates  owing  by  the  com- 
pany. Flint  Coal  and  Cannel  Company,  In  re, 
56  L.  J.,  Ch.  232  ;  56  L.  T.  16— Chitty,  J. 


5.   LIQUIDATORS  AND  RECEIVERS. 

Appointment— Voluntary  Winding-up.]— See 
Indian  Zoedone  Company,  In  re,  ante,  col.  408. 

Provisional  Liquidator.]— The  provisions 

of  Ord.  L.  r.  17,  with  respect  to  the  appointment 
of  receivers,  are  applicable  to  the  appointment 
of  provisional  liquidators  ;  so  that  when  an 
order  has  been  made  for  the  appointment  of  a 
provisional  liquidator,  it  may  be  at  once  ad- 
journed to  chambers,  and  there  completed. 
Hoyland  Silkstone  Colliery,  In  re,  53  L.  J.,  Ch. 
362  ;  49  L.  T.  667— Pearson,  J. 

There  being  some  evidence  that  a  company 
had  no  assets  beyond  the  property  comprised  in 
the  trust  deed,  the  court  directed  an  inquiry  in 
chambers  whether  the  company  had  any  and 
what  assets  not  included  in  the  deed  and  avail- 
able for  the  general  creditors,  and  referred  it  to 
chambers  to  appoint  a  provisional  liquidator, 
with  all  the  powers  of  an  official  liquidator, 
but  the  liquidator  was  to  take  no  steps  without 
the^  direction  of  the  judge  in  chambers,  beyond 
taking  possession  of  the  company's  property 
within  the  jurisdiction,  including  their  books  and 

Sipers.     Olathe  Silver  Mining  Co.,  In  re,  27  Ch. 
.  278 ;  33  W.  R.  12— Pearson,  J. 

Hew  Liquidator — Absconding  Liquidator 


—Vesting  Order.]— After  an  order  had  been 
made  for  the  compulsory  winding-up  of  a 
company  A.  B.  was  appointed  official  liquidator. 
A.  B.  afterwards  absconded,  and  he  was  removed 
from  the  post  of  official  liquidator,  and  in  his 
place  C.  D.  was  appointed  official  liquidator.  It 
was  found  that  a  sum  of  consols,  part  of  the  assets 
of  the  company,  was  standing  in  A.  B.'s  name  as 
official  liquidator.  An  application,  under  the 
Trustee  Act,  1850,  ss.  22  and  43,  was  therefore 
made  by  motion  ex  parte  for  an  order  to  vest 


such  sum  of  consols  in  C.  D.  as  official  liquidator. 
A.  B.  had  become  bankrupt  and  could  not  be 
found : — Held,  that  the  court  had  jurisdiction  to 
mafce  the  order  asked  for  upon  motion  ;  but  that, 
except  in  simple  cases   like   the  present,  tbe 

r  cation  should  be  made  by  petition  ;— Held, 
that  the  order  asked  for  should  be  made, 
but  not  drawn  up,  within  a  week,  and  that  the 
trustee  in  bankruptcy  of  the  absconding  liquidator 
should  forthwith  be  served  with  notice  of  the 
order.  Capital  Fire  Insurance  Association,  In 
re,  55  L.  T.  633— Chitty,  J. 

Security— Supervision  Order.] — In  the  case  of 
a  supervision  order  a  creditors1  representatire, 
appointed  to  act  as  co-liquidator  with  a  voluntary 
liquidator,  was  not  required  to  give  security,  it 
appearing  that  no  security  had  been  required 
from  the  voluntary  liquidator.  Aberavon  Tin 
Plate  Company,  In  re,  67  L.  J.,  Ch.  761 ;  59  L.  T. 
498— Chitty,  J. 

Remuneration— "  Divisible  Assets  "  —  VsIm 
of  Shares.] — The  regulation  adopted  by  the 
judges  of  the  Court  of  Chancery  in  1868  for  fixing 
the  remuneration  of  official  liquidators  is  not 
binding  upon  the  judges,  but  is  intended  as  a 
guide  to  them  in  exercising  their  discretion.  A 
limited  company  being  in  course  of  liquidation, 
a  new  company  was  formed,  and  a  scheme  was 
sanctioned  by  the  court,  under  which  the  new 
company  took  over  the  assets  of  the  old  company, 
and  in  consideration  thereof  agreed  to  pay  its 
debts  and  to  allot  shares  to  the  old  shareholders 
instead  of  their  old  shares,  each  share  to  be  of 
the  nominal  value  of  1  J.,  with  16s.  paid  up,  and 
their  market  value  was  about  16*.  The  judge, 
in  fixing  the  scale  of  remuneration  of  the 
liquidator,  treated  the  value  of  the  new  shares 
allotted  to  the  shareholders  as  assets  of  the  old 
company  of  the  value  of  15#.  each  : — Held,  that 
the  judge  had  acted  on  a  right  principle  in 
having  regard  to  the  value  of  the  new  shares 
in  fixing  the  scale  of  remuneration,  and  that 
they  ought  not  to  interfere  with  his  discretion  as 
to  the  value  at  which  he  estimated  them. 
"Divisible  assets"  in  the  regulation  means 
assets  free  to  be  divided  among  the  creditors  and 
shareholders,  not  assets  actually  divided.  Mysore 
Beefs  Gold  Mining  Company,  In  re,  34  Ch.  D. 
14  ;  56  L.  J.,  Ch.  96  ;  55  L.  T.  655— C.  A. 

Bankruptcy  Notice  given  by.] — See  ante, 
col.  103. 

Bight  to  Costs — Priority.]— An  order  giving 
the  costs  to  the  successful  litigant  directed  that 
they  should  be  paid  by  the  official  liquidator, 
and  that  he  should  be  at  liberty  to  retain  them 
out  of  the  assets  of  the  company  : — Held,  that 
this  form  of  order  gave  the  official  liquidator  the 
right  to  repay  himself  the  costs  out  of  the  assets 
in  priority  to  all  other  creditors.  Dominion  of 
Canada  Plumbago  Company,  In  re,  27  Ch.  D. 
34;  63  L.  J.,  Ch.  702 ;  50  L.  T.  618  ;  33W.B.9 
— C.A. 

Liability  for  Costs.]— The  official  liquidators 
of  a  company  who  are  defending  an  action  in 
the  name  and  on  behalf  of  the  company  are  not 
liable  for  costs  personally.  Fra*er  v.  Brtstis 
Steam  Tramways  Company,  66  L.  T.  771— Keke- 
wich,  J. 

Costs  of  successful  claims  in  a  winding-up  are 


421 


COMPANY—  Winding-up. 


422 


not  given  against  the  liquidator  personally,  but 
oat  of  the  assets.  Marseilles  Extension  Railway ', 
I*  re,  SmaUpage  and  Brandon's  eases,  30  Ch.  D. 
SW ;  55  L.  J.,  Ch.  116— Pearson,  J. 

lamoval —  liquidator  of  Unsound  Hind  — 
taiadietion  of  High  Court — Stannaries  Court.  ] — 
A  company  registered  under  the  Companies  Acts, 
which  was  formerly   engaged   in   working  a 
mine  within  and  subject  to  the  jurisdiction  of 
the  Stannaries,  was  wound  up  voluntarily,  and 
the  mine  was  sold  and  disposed  of.    The  liqui- 
dator subsequently  became  of  unsound  mind, 
and  it  was  desirable  that  some  person  should 
forthwith  be  appointed  liquidator  of  the  com- 
pany in  his  place.    An  application  was  accord- 
ingly made  to  the  High  Court  for  that  purpose. 
The  case  not  being  expressly  provided  for  by 
«.  140  and  141  of  the  Companies  Act,  1862, 
the  question  arose  as  to  whether  the  court  had 
jurisdiction  to  remove  a  lunatic  liquidator.    An- 
other question  was,  whether  the  application  was 
properly  made  to  the  High  Court,  or  whether  it 
should  have  been  made  to  the  Stannaries  Court : 
—Held,  that,  under  the  circumstances,  the  High 
Court  had  jurisdiction  to  make  the  order  asked 
for,  notwithstanding  that  there  might  be  a  con- 
current jurisdiction  in  the  Stannaries   Court ; 
and  an  order  was  made  removing  the  liquidator, 
and  directing  the  usual  reference  to  chambers  to 
appoint  a  new  liquidator.   North  Molton  Mining 
#»/o»y,  ln  re,  54  L.  T.  602  ;  34  W.  E.  627— 

Grounds  for.  J — The  jurisdiction  of  the 

owrt  to  remove  a  liquidator  under  ss.  93  and 
HI  of  the  Companies  Act,  1862,  "  on  due  cause 
shown,"  is  not  confined  to  cases  where  there 
■  personal  unfitness  in  the  liquidator.  When- 
ever the  court  is  satisfied  that  it  is  for  the 
general  advantage  of  those  interested  in  the 
waets  of  the  company  that  a  liquidator  should 
be  removed,  it  has  power  to  remove  him,  and 
appoint  a  new  one.  Sir  John  Moore  Gold  Mining 
Company,  In  re  (l2  Ch.  D.  325),  explained. 
ftsrlesworth,  Ex  parte,  Adam  Eyton,  In  re,  36 
Ch.  D.  299  ;  57  L.  J.,  Ch.  127  ;  67  L.  T.  899  ;  36 
W.  B.  276— C.  A. 

Appeal  against  Order  for  Removal.  1— 

A  liquidator  who  has  been  removed  by  a  judge 
my  appeal  against  his  removal.    lb. 

Ownpanios  Aetf  1868,  s.  165— Security  for 

Costs,] — A  building  society,  formed  in  accord- 
ance with  the  provisions  of  6  &  7  Will.  4,  c.  32, 
*as  bang  wound  up,  and  a  summons  was 
brought  by  the  official  liquidator  under  s.  165  of 
the  Companies  Act,  1862,  against  the  manager. 
On  a  summons  by  the  manager  under  s.  69  of 
the  Act  of  1862,  for  security  for  costs,  on  the 
pound  that  the  assets  of  the  society  were  in- 
•affcient  to  pay  the  costs  of  the  first  summons  : 
—Held,  that  the  court  had  general  jurisdiction 
to  order  the  official  liquidator  to  give  security 
for  coats  before  any  further  proceedings  were 
taken  in  the  matter.  Seventh  East  Central 
fading  Society,  In  re,  51  L.  T.  109— V.-C.  B. 

— -  SeHeitor  not  "  Offioor  "  of  Company,  j — 
A  solicitor  of  a  company  is  not  an  officer  of  that 
company  within  the  meaning  of  s.  165  of  the 
Conntnies  Act,  1862.  Great  Western  Forest  of 
At*  Coal  Consumers*  Company,  In  re,  Carter's 


Case,  31  Ch.  D.  496  ;  55  L.  J.,  Ch.  494  ;  54  L.  T. 
631  ;  34  W.  B.  516— Pearson,  J. 

A  solicitor  who  acts  as  solicitor  of  a  company 
at  the  time  of  its  formation  is  not  a  promoter, 
neither  is  he  an  officer  of  the  court,  so  as  to  be 
amenable  to  the  jurisdiction  of  the  court  under 
8.  165  of  the  Companies  Act,  1862.  Great  Wheal 
Polgooth,  In  re,  53  L.  J.,  Ch.  42  ;  49  L.T.20;  32 
W.  B.  107  ;  47  J.  P.  710— V.-C.  B. 


Summons — Witness  Action,  setting  down 


ai — Cross-examination.] — The  liquidators  of  a 
company  which  was  in  course  of  being  wound 
up  took  out  a  summons,  under  s.  165  of  the 
Companies  Act,  1862,  seeking  to  make  the 
directors  liable  for  misfeasance  and  breach  of 
trust.  Numerous  affidavits  were  filed  for  and 
against  the  summons.  The  liquidators  applied 
to  the  chief  clerk  to  have  the  summons  entered 
in  the  list  of  witness  actions  and  the  cross- 
examination  of  the  deponents  taken  in  court  at 
the  hearing ;  but  the  chief  clerk  made  an  order 
refusing  the  application.  The  liquidators  ac- 
cordingly moved  to  discharge  that  order,  on  the 
ground  that  it  would  be  much  more  convenient 
to  have  the  summons  treated  as  a  witness  action ; 
and  that,  if  the  cross-examination  took  place 
before  the  chief  clerk,  or  one  of  the  examiners  of 
the  court,  a  great  deal  of  irrelevant  matter  would 
be  gone  into,  and  much  time  thus  unnecessarily 
occupied: — Held,  that  the  application  to  dis- 
charge the  chief  clerk's  order  must  be  refused ; 
that,  unless  a  special  case  was  shown,  summonses 
of  this  nature  were  to  be  heard  as  summonses  on 
affidavit  evidence,  and  any  cross-examination 
upon  the  affidavits  must  take  place  before  one  of 
the  examiners  of  the  court ;  and  that  the  present 
case  was  one  which  ought  to  go  before  an 
examiner  of  the  court.  Faure  Electric  Accu- 
mulator Company,  In  re,  58  L.  T.  42 — 
Kay,  J. 

Beceiver— Subsequent  Winding-up — Substitu- 
tion of  Liquidator  as  Beceiver.] — In  an  action 
brought  against  a  company  to  enforce  a  charge 
on  certain  calls  due  from  shareholders,  the 
plaintiffs  were,  in  August,  1884,  appointed  as 
receivers.  In  October,  1884,  the  company  went 
into  voluntary  liquidation,  and  on  the  15th 
November,  1884,  an  order  was  made  for  carrying 
on  the  winding-up  under  the  supervision  of  the 
court.  On  the  3rd  June,  1885,  the  court  removed 
the  plaintiffs  from  being  receivers,  and  appointed 
the  liquidators  of  the  company  to  be  receivers  in 
their  place,  on  the  ground  that  the  liquidators 
could  collect  the  outstanding  calls  more  expedi- 
tiously and  less  expensively  than  the  plaintiffs. 
On  appeal,  the  court,  without  laying  down  that 
a  receiver  already  appointed  should  be  displaced 
by  the  liquidator,  declined  to  interfere  with  the 
discretion  of  the  judge.  Bartlett  v.  Northum- 
berland Avenue  Hotel  Company,  53  L.  T.  611 — 
C.A. 

After  the  presentation  of  a  petition  for 
winding-up  the  company,  but  before  an  order 
for  winding-up  was  made,  or  an  official  liquidator 
appointed,  two  of  the  directors  of  the  com- 
pany, in  the  character  of  trustees  of  a  trust  deed 
for  securing  certain  mortgage  debentures,  com- 
menced an  action  against  the  company  for  the 
enforcement  of  the  deed,  and  obtained  the 
appointment  of  a  receiver  of  the  property  in- 
cluded in  the  trust  deed,  which  comprised  the 
whole,  or  nearly  the  whole,  of  the  assets  of  the; 

p  2 


428 


COMPANY—  Winding-up. 


424 


company.  A  winding-up  order  was  subsequently 
made,  and  an  official  liquidator  appointed,  and 
on  his  application : — Held,  that  the  receiver 
appointed  in  the  action  must  be  removed,  and 
the  liquidator  appointed  receiver  in  his  place. 
Tottenham  v.  Swansea  Zinc  Ore  Company \  63 
L.  J.,  Ch.  776 ;  51  L.  T.  61 ;  32  W.  fc.  716— 
Pearson,  J. 


6.  BENT  AND  BATES. 

Leave  to  Distrain  for  Bent — Accrual  after 
Winding-up  Order.] — A  limited  company  mort- 
gaged certain  cotton  mills,  machinery,  and  fix- 
tures for  22,000Z.  The  mortgage  deed  contained 
a  clause  by  which  the  company  attorned  tenants 
to  the  mortgagees  at  the  annual  rent  of  1,595Z. 
The  company  was  ordered  to  be  wound  up,  and 
the  official  liquidator  remained  in  possession  of 
the  mills  for  more  than  a  year  in  order  that  he 
might,  if  possible,  sell  them  as  a  going  concern. 
He  paid  the  expenses  of  keeping  the  premises 
and  the  machinery  in  repair,  but  did  not  actually 
work  the  mills.  The  mortgagees  acquiesced  in 
this  arrangement,  believing  it  to  be  the  best  for 
all  parties.  The  mortgagees  then  applied  for 
leave  to  distrain  for  a  year's  rent  accrued  since 
the  winding-up  order : — Held,  that  as  it  appeared 
from  the  evidence  that  the  occupation  of  the 
liquidator  was  for  the  benefit  of  the  mortgagees 
as  well  as  of  the  company,  the  mortgagees  ought 
not  to  be  allowed  to  distrain.  Exhall  Coal 
Mining  Company,  In  re  (4  D.  J.  &  S.  377),  dis- 
approved but  followed.  Carnelley,  Ex  parte, 
Lancashire  Cotton  Spinning  Company,  in  re, 

35  Ch.  D.  656  ;  56  L.  J.,  Ch.  761 ;  57  L.  T.  511  ; 

36  W.  B.  305— C.  A. 

When  a  landlord  applies  to  the  court  for  leave 
to  distrain  for  rent  upon  the  goods  of  a  company 
which  is  being  wound  up,  he  must  show  either 
that  there  are  special  circumstances  rendering  it 
inequitable  for  the  163rd  section  to  be  enforced 
against  him ;  or  that  the  rent  has  accrued  under 
such  circumstances  that  it  ought  to  be  paid  as 
part  of  the  costs  of  the  winding  up.  Semble,  a 
mortgagee  with  an  attornment  clause  who  asks 
for  leave  to  distrain  for  his  interest  after  a 
winding-up  order,  is  in  a  more  unfavourable 
position  than  a  landlord  who  asks  for  leave  to 
distrain  for  rent.    lb. 

House  in  Occupation  of  Under-tenants 

— Charge  of  Debenture-holders.] — A  company 
who  were  the  lessees  of  a  house  where  they 
carried  on  their  business  were  ordered  to  be 
wound  up,  being  indebted  in  an  arrear  of  rent 
to  their  landlord.  A  scheme  of  reconstruction 
was  sanctioned  by  the  court  under  which  the 
ease  was  purchased  by  a  new  company;  and 
the  new  company  agreed  with  the  landlord  to 
pay  him  the  arrears  of  rent  and  "all  subse- 
quent rent  accruing  due  under  the  lease  in 
manner  therein  provided,"  but  no  assignment 
of  the  lease  to  the  new  company  was  ever  exe- 
cuted. The  new  company  issued  debentures 
charging  all  their  property  to  a  much  larger 
amount  than  the  value  of  the  furniture  in  the 
house.  The  new  company  was  also  ordered  to 
be  wound  up,  a  year's  rent  being  due  to  the 
landlord : — Held,  by  Kay,  J.,  that  the  landlord 
was  entitled  to  distrain  on  the  furniturs  as 
against  the  debenture-holders,  and  that  as  it 
was  the  only  property  of  the  company  and  the 


debenture  debt  was  much  greater  than  its  value, 
the  official  liquidator  had  no  interest  in  the 
matter  and  no  power  to  interfere ;  and  farther, 
that  if  the  debenture-holders  were  out  of  the 
way,  the  landlord,  although  he  had  a  claim  for 
the  rent  under  the  agreement  for  which  he  could 
prove  in  the  winding-up,  could  distrain  accord- 
ing to  Ex  parte  Clemence  (23  Ch.  D.  154),  which 
however  was  disapproved : — Held,  by  the  Court 
of  Appeal,  that  as  the  charge  of  the  debenture- 
holders  was  more  than  the  value  of  the  furniture, 
the  furniture  did  not  belong  to  the  company,  and 
the  landlord  was  therefore  entitled  to  distrain 
upon  it ;  but  the  court  gave  no  opinion  on  the 
question  whether  the  landlord  could  have  dis- 
trained if  the  debenture-holders  had  been  out  of 
the  way :  that  the  fact  that  the  debenture-holders 
were  willing,  and  offered  to  release  their  security 
and  stand  as  general  creditors  made  no  difference 
in  the  landlord's  right ;  and  that  under  an  agree- 
ment between  the  liquidator  and  the  landlord 
that  the  liquidator  should  sell  the  furniture  and 
pay  the  proceeds  of  the  sale,  "  lees  the  auction 
charges,     into   court,  the   liquidator  was  not 
entitled  to  deduct  his  own  costs  and  charges  in 
carrying  out  the  sale.    Purssell,  Ex  parte,  New 
City  Constitutional  Club  Company,  In  re,  34 
Ch.  D.  646  ;  56  L.  J.,  Ch.  332 ;  56  L.  T.  792 ;  85 
W.  R.  421— C.  A. 

Payment  of  Bates — Voluntary  Liquidation— 
Provisional  Liquidator— Bates  doe  after  Ap- 
pointment of— Priority.] — Between  the  dates  of 
the  appointment  of  a  provisional  liquidator  on  a 
winding-up  petition  and  of  a  subsequent  resolu- 
tion by  the  company  for  a  voluntary  winding- 
up,  the  overseers  of  a  parish  proceeded,  without 
the  leave  of  the  court,  to  distrain  for  rates  which 
had  become  due  for  the  current  half-year  in 
respect  of  the  company's  premises : — Held,  by 
the  court  below,  that  the  overseers  were  not 
entitled  to  the  benefit  of  their  distress,  and  that, 
as  the  rates  were  due  before  the  commencement 
of  the  winding-up— that  is,  the  passing  of  the 
winding-up  resolution,  Weston's  case  (4  L.  H» 
Ch.  20) — the  overseers  were  not  entitled  to  any 
priority  in  respect  of  them,  and  that  an  injunc- 
tion ought  to  be  granted  to  restrain  them  from 
proceeding  with  the  distress.  But  held  on  appeal, 
that  as  the  overseers'  right  of  distress  was  de- 
feated only  by  the  appointment  of  the  provi- 
sional liquidator,  the  case  was  one  where  if  leave 
to  distrain  had  been  applied  for  it  would  h&Te 
been  granted,  and  that  an  injunction  ought  only 
to  have  been  granted  on  the  terms  of  the  liqui- 
dators paying  the  rates.  Dry  Bocks  Corporate*, 
In  re,  39  Ch.  D.  306  ;  68  L.  J.,  Ch.  33  ;  69  L.  T. 
763  ;  37  W.  R.  18 ;  1  Meg.  86— C.  A. 

Business   carried   on   by  Liquidator— 

Beneficial  Occupation.] — An  hotel  company  was 
wound  up  under  an  order  of  the  court,  and  the 
liquidator  was  directed  to  sell  the  hotel,  but 
with  liberty  to  carry  on  the  business  till  the 
sale,  so  as  to  sell  it  as  a  going  concern.  The 
liquidator  accordingly  carried  on  the  business 
in  the  hotel,  but  made  no  profit  by  it  Shortly 
after  the  commencement  of  the  winding-up  a 
poor-rate  was  made,  and  the  overseers  claimed 
payment  of  the  rate  from  the  liquidator  in 
respect  of  his  occupation  of  the  hotel :— Held, 
that  the  rate  must  be  paid  in  full.  West  Hartle- 
pool Iron  Company,  In  re  (34  L.  T.  568),  and 
Watson,  Kipling  f  Co.,  In  re  (23  Ch.  D.  500), 


425 


COMPANY—  Winding-up. 


426 


distinguished  International  Marine  Hydro- 
fttkic  Company,  In  re,  28  Ch.  D.  470 ;  33  W.  B. 
587-C.A 

A  company  was  being  wound  up  under  super- 
Tiaon,  toe  liquidation  commencing  in  1882. 
The  liquidator  did  not  keep  the  concern  in  lull 
work,  bat  remained  in  occupation  of  the  busi- 
oen  premises  for  the  purpose  of  carrying  out 
some  pending  contracts,  finishing  a  quantity  of 
unfinished  articles,  and  storing  and  keeping  in 
order  a  quantity  of  completed  articles  with  a 
new  to  selling  them.  In  March,  1883,  a  rating 
authority  made  a  rate  for  1883  on  all  the  pro- 
perty within  the  district.  The  liquidator  allowed 
the  time  for  appealing  against  the  assessment  to 
go  by.  The  rating  authority  applied  to  the  court 
lor  payment  of  the  rate  in  full  .-—Held,  that  as 
the  liquidator  had  from  the  commencement  of 
the  winding-up  occupied  the  property  for  the 
purposes  of  the  company,  and  with  a  view  to 
acquiring  gain  or  avoiding  loss  to  the  company, 
the  rate  ought  to  be  paid  in  full.  National 
Arm  and  Ammunition  Company,  In  re,  28 
Ch.  D.  474 ;  54  L.  J.,  Ch.  673  ;  62  L.  T.  237 ;  33 
W.  B.  585— C.  A. 

Whether,  in  order  to  entitle  the  rating  autho- 
rity to  be  paid  in  full,  it  is  necessary  for  the 
liquidator  to  have  any  more  beneficial  occupa- 
tion of  the  property  than  is  required  under  the 
ordinary  law  as  to  rating,  quaere.  The  test  in 
West  Hartlepool  Iron  Company,  In  re  (34  L.  T. 
668).  doubted.    lb. 

Where  the  liquidator,  being  in  possession, 
does  not  appeal  against  the  assessment,  the 
court  will  not  refuse  to  order  payment  of  the 
rate  in  foil  on  the  ground  of  its  being  too  high, 
except  perhaps  in  extreme  cases.    lb. 

Staying  Proceedings.] — See  ante,  col.  419. 


7.  SET-OFF. 

Judicature  Act,  1875,  s.  10— Sale  of  Goods— 
Contract  for  Delivery  of  Goods  by  Instalments.] 
—The  respondents  bought  from  the  appellant 
company  5,000  tons  of  steel  of  the  company's 
make,  to  be  delivered  1,000  tons  monthly,  com- 
mencing January,  1881,  payment  within  three 
daji  after  receipt  of  shipping  documents.  In 
January  the  company  delivered  part  only  of 
that  month's  instalment,  and  in  the  beginning 
of  February  made  a  further  delivery.  On  the 
2nd  of  February,  shortly  before  payment  for 
these  deliveries  became  due,  a  petition  was  pre- 
sented to  wind  up  the  company.  The  respon- 
dents bona  fide,  under  the  erroneous  advice  of 
their  solicitor  that  they  could  not  without  leave 
of  the  court  safely  pay  pending  the  petition,  ob- 
jected to  make  the  payments  then  due  unless  the 
company  obtained  the  sanction  of  the  court, 
*hich  they  asked  the  company  to  obtain.  On 
the  10th  of  February  the  company  informed  the 
respondents  that  they  should  consider  the  re- 
tail to  pay  as  a  breach  of  contract,  releasing 
the  company  from  any  further  obligations.  On 
the  15th  of  February  an  order  was  made  to 
"ind  up  the  company  by  the  court  A  corre- 
spondence ensued  between  the  respondents  and 
the  liquidator,  in  which  the  respondents  claimed 
damages  for  failure  to  deliver  the  January  in- 
■tahnent,  and  a  right  to  deduct  those  damages 
from  any  payments  then  due ;  and  said  that 
they  always  had  been  and  still  were  ready  to 


accept  such  deliveries  and  make  such  payments 
as  ought  to  be  accepted  and  made  under  the 
contract,  subject  to  the  right  of  set-off.  The 
liquidator  made  no  further  deliveries,  and  brought 
an  action  in  the  name  of  the  company  for  the 
price  of  the  steel  delivered.  The  respondents 
counterclaimed  for  damages  for  breaches  of  con- 
tract for  non-delivery :— Held,  that  s.  10  of  the 
Judicature  Act,  1875,  imported  into  the  winding- 
up  of  companies  the  rules  as  to  set-off  in  bank- 
ruptcy ;  that  the  respondents  were  entitled, 
after  the  winding-up  order  was  made,  to  set-off 
damages  for  non-delivery  against  the  payments 
due  from  them,  and  to  counterclaim  for  damages 
in  this  action.  Mersey  Steel  and  Iron  Company 
v.  Naylor,  9  App.  Oas.  434  ;  53  L.  J.,  Q.  B.  497  ; 
51  L.  T.  637  ;  32  W.  R.  989— H.  L.  (E.). 

Claim  to  Eeturn  of  Goods  Fledged- 
Detinue.] — The  plaintiff  company  had  deposited 
cigars  with  the  defendants  to  secure  a  debt.  An 
order  for  winding  up  the  company  was  after- 
wards made,  and,  the  secured  debt  having  been 
paid  off,  the  liquidator  of  the  company  claimed 
a  return  of  the  cigars,  but  the  defendants  re- 
fused to  give  them  up.  The  liquidator  brought 
an  action  of  detinue  for  the  cigars.  Their  value 
having  been  assessed  in  the  action,  the  defen- 
dants claimed  by  way  of  counterclaim  to  set  off 
another  debt  due  from  the  company  to  them 
against  such  value  by  virtue  of  the  conjoint 
effect  of  s.  38  of  the  Bankruptcy  Act,  1883  (the 
"mutual  dealings"  section),  and  8.  10  of  the 
Judicature  Act,  1875,  which  applies  the  rules 
of  bankruptcy  law  to  cases  of  winding-up : — 
Held,  that  they  were  not  entitled  to  do  so  on 
the  ground  that  s.  38  is  only  applicable  where 
the  claims  on  each  side  are  such  as  result  in 
pecuniary  liabilities,  whereas  the  right  of  the 
plaintiffs  was  to  a  return  of  the  goods.  Eberle's 
Hotel  Company  v.  Jonas,  18  Q.  B.  D.  459  ;  59  L. 
J.,  Q.  B.  278  ;  35  W.  B.  467— C.  A. 

Claim  against   Company  assigned    to 

Debtor  to  Company  and  again  assigned  by  him.] 
— A  company  in  1887  was  ordered  to  be  wound 
up.  In  1879  H.  took  assignments  for  value  of 
the  debts  proved  by  and  certified  to  be  due  to 
several  creditors.  On  the  23rd  of  January,  1880, 
the  liquidator  took  out  a  summons  under  s.  165 
of  the  Companies  Act,  1862,  that  H.,  who  had 
been  a  director,  might  be  ordered  to  pay  2,000Z., 
the  nominal  value  of  certain  shares  in  the  com- 
pany received  by  him  from  the  promoter,  or  to 
make  compensation  on  the  ground  of  misfeas- 
ance. On  the  25th  of  February,  1880,  H.  assigned 
the  above  debts  to  T.  for  value,  T.  knowing 
nothing  of  the  claims  against  H.,  and  notice  of 
the  assignment  was  at  once  given  to  the  liqui- 
dator. In  July,  1880,  an  order  was  made  on  the 
summons  for  H.  to  pay  2,0001.  to  the  liquidator. 
On  the  4th  of  August,  1881,  an  order  was  made 
giving  the  liquidator  liberty  to  declare  a  dividend 
of  11*.  in  the  pound  on  the  debts  of  the  company. 
T,  applied  for  payment  of  this  dividend  on  the 
debts  assigned  to  him,  but  the  liquidator  claimed 
to  retain  the  dividend  by  way  of  set-off  against 
the  2,000Z. :— Held,  that  the  liquidator  had  no 
such  right  of  set-off,  and  that  T.  was  entitled 
to  receive  the  dividend.  Milan  Tramways  Com* 
pany,  In  re,  Theys,  Ex  parte,  25  Cb.  D.  587  ;  63 
L.  J.,  Ch.  1008  ;  50  L.  T.  545  ;  32  W.  R.  601— 
C.A. 


427 


COMPANY— Winding-up. 


428 


Qualification  of  Directors  provided  by  Pro- 
moter.]— A  director,  upon  finding  that  he  was  not 
justified  in  receiving  from  the  promoter  shares 
to  give  him  the  necessary  qualification  without 
payment,  offered  to  pay  the  full  sum  due  from 
him,  and  gave  a  cheque  for  the  amount,  which, 
however,  was  accepted  as  an  advance  to  the 
company,  and  was  added  to  previous  advances 
made  by  him  for  preliminary  expenses  : — Held, 
that  he  was  not  at  liberty  to  set  off  the  value  of 
his  shares  against  the  amount  paid  in  respect  of 
advances,  though  he  would  have  a  claim  against 
the  company  for  those  advances.  Carriage  Co- 
operative Supply  Association,  In  re,  27  Ch.  D. 
323  ;  53  L.  J.,  Ch.  1164  ;  51  L.  T.  286  ;  33  W.  R. 
411 — Pearson,  J. 

Payment  by  Director  after  Winding-up  Order, 
of  Promissory  Note  given  before,  on  behalf  of 
Company.  1 — A  director  of  an  unlimited  company 
paid  to  tne  bankers  of  the  company,  after  a 
winding-up  order,  and  after  a  call  had  been 
made,  500Z.  in  respect  of  an  overdraft  of  the 
company,  for  which  he  had  become  surety.  On 
a  summons  asking  the  court  to  declare  that 
under  s.  101  of  the  Companies  Act,  1862,  the 
director  was  entitled  to  set  off  this  sum  against 
875/.  due  from  him  for  calls  on  shares : — Held, 
that  the  amount,  if  any,  owing  to  the  director 
was  one  which  could  only  be  ascertained  by  in- 
quiry ;  that  it  was  not  clear  that  the  director 
had  any  claim  to  be  repaid ;  and  that  the  court, 
in  the  exercise  of  the  discretion  given  by  the 
section,  ought  not  to  allow  the  set-off.  Nor- 
wich Equitable  Fire  Insurance  Company,  In  rs, 
BrasnetVs  case,  53  L.  T.  569  ;  34  W.  R.  206— 
C.  A.    Affirming  54  L.  J.,  Ch.  227— V.-C.  B. 

Charge  on  Money  payable  under  Contract — 
Damages  under  Independent  Contract.] — Under 
a  contract  for  paving  and  maintaining  v.  Street 
between  certain  commissioners  and  a  company, 
the  commissioners  were  empowered  to  retain  the 
cost  of  maintenance  and  to  set  it  off  against  any 
money  which  might  be  payable  by  them  to  the 
company.  The  company,  on  the  loth  of  Novem- 
ber, 1882,  gave  L.  a  letter  of  charge  upon  all 
their  interest  in  the  contract  to  secure  a  debt  due 
from  them  to  him.  On  the  9th  of  December  L. 
gave  the  commissioners  notice  of  this  charge,  and 
biter  on  the  same  day  the  company  presented 
a  petition  for  a  winding-up  order,  after  which 
the  provisional  liquidator  was  empowered  to 
complete  the  contract  subject  to  any  prior  charge 
in  favour  of  L.  On  the  13th  of  January,  1883, 
the  winding-up  order  was  made.  The  commis- 
sioners claimed  damages  for  non-fulfilment  of 
the  contract  to  maintain  V.  Street,  and  also  four 
other  streets  under  similar  contracts,  and  they 
claimed  to  set  off  these  sums  against  money  due 
from  them  to  the  company :  —  Held,  that  the 
commissioners  were  not  entitled  to  set-off  against 
moneys  due  from  them  to  the  company  under 
the  contract  relating  to  V.  Street  any  damages 
to  which  they  might  be  entitled  for  breaches  of 
the  other  contracts.  Held  also,  that  the  charge 
in  favour  of  L.  being  given  prior  to  the  liquida- 
tion, the  commissioners  were  not  entitled  to  a 
set-off  against  L.,  but  that  they  could  set-off  the 
damages  against  the  liquidator  under  the  mutual 
credit  section  of  32  &  33  Vict.  c.  71.  Asphaltio 
Paving  Co.,  In  re,  Lee  and  Chapman,  Ex  parte, 
30  Ch.  D.  216  ;  54  L.  J.,  Ch.  460  ;  53  L.  T.  65  ; 
33  W.  R.  513— C.  A. 


8.  ASSETS. 
a.  Sale  of. 


Jurisdiction — Sanotion  of  Court  to  Conditional 
Contract  —Judicial  Discretion — Appeal]— Sect. 
95  of  the  Companies  Act,  1862,  enables  the 
official  liquidator  of  a  company  in  course  of 
winding-up,  with  the  sanction  of  the  court,  to 
sell  the  whole  of  the  assets  of  the  company  en 
bloc.  Although,  as  a  general  rule,  when  a 
liquidator  is  proposing  to  sell  the  assets  of  the 
company  with  the  sanction  of  the  court,  it  is 
proper  to  obtain  a  valuation  of  the  property  to 
be  sold,  yet  the  court  will,  in  the  absence  of  such. 
a  valuation,  sanction  a  sale  under  peculiar 
circumstances — e.g.,  when  an  early  sale  is  desi- 
rable and  the  assets  are  large,  in  distant  and 
different  parts  of  the  world,  and  of  fluctuating 
value.  When  asked  to  sanction  a  contract  for 
the  sale  of  the  assets  of  a  company  in  liquida- 
tion, the  court  is  justified  in  acting  principally 
on  the  information  of  the  court  and  the  liquida- 
tor m  the  winding-up,  without  requiring  strict 
proof  of  all  the  circumstances.  It  is  a  strong 
ground  for  ordering  an  early  sale  of  the  assets 
that  the  liquidator,  by  retaining  possession  of 
the  assets,  is,  by  reason  of  their  peculiar  character, 
carrying  on  a  speculation  which  may  involve  the 
creditors  in  loss,  or  greatly  diminish  their  chances 
of  being  paid.  The  judge  to  whose  court  a 
winding-up  is  attached  has  a  judicial  discretion 
as  to  sanctioning  a  sale  of  the  company's  assets 
under  s.  95  of  the  Companies  Act,  1862. 
Although  an  appeal  lies  from  the  exercise  of 
such  discretion,  yet  the  Court  of  Appeal  will 
only  interfere  (1)  when  the  judge  has  decided 
on  a  matter  not  within  his  discretion  ;  (2)  when 
his  assumed  discretion  has  been  exercised  on 
wrong  principles  ;  (3)  when  some  great  loss  will 
be  occasioned  by  a  clearly  erroneous  exercise  of 
discretion.  Oriental  Bank  Corporation,  In  re, 
56  L.  T.  868— C.  A. 

When  the  court  has  sanctioned  a  conditional 
private  contract  for  the  sale  of  the  assets  of  a 
company,  the  court  ought  not  to  entertain  a 
subsequent  (even  higher)  offer  from  another 
person,  as  such  a  practice  is  within  the  principle 
condemned  by  the  Sale  of  Land  by  Auction  Act, 
1867.    lb.— Per  Chitty,  J. 

b.  Distribution  o£ 

Injunction  to  Bestrain — Future  Ifahilitiai 
under  Lease.] — An  injunction  was  granted,  on 
motion  by  the  lessor,  to  restrain  a  company  in 
voluntary  liquidation  from  distributing  assets 
among  its  shareholders  without  setting  aside 
sufficient  assets  to  provide  for  future  rent  and 
other  liabilities  under  a  lease.  An  appeal  from 
this  decision  was  compromised.  Gooch  v. 
London  Banking  Association,  32  Ch.  D.  41— 
Pearson,  J.    Compromised  in  C.  A. 

Unassignable  Lease.]— When  a  limited 

company  is  voluntarily  wound  up  a  lessor  who 
has  granted  a  lease  to  the  company  not  assign- 
able without  his  consent,  may  obtain  an  inter- 
dict against  the  liquidator  of  the  company  from 
dividing  the  surplus  among  the  shareholders 
until  some  provision  to  meet  his  future  con- 
tingent claims  against  the  company  is  made. 
Elphinstone  (Lord)  v.  Monkland  Iron  and  Coal 
Company,  11  App.  Cas.  332— H.  L.  (Sc). 


429 


COMPANY— Winding-up. 


480 


Buplu  A  neti  Ordinary  and  Preference 
Shareholder!.] — The  articles  of  association  of  a 
limited  company  provided  that  the  entire  net 
profits  of  each  year,  subject  to  providing  a  re- 
*rre,  should  belong  to  the  holders  of  shares. 
After  this  preference  shares  entitling  the  holders 
to  a  fixed  dividend  were  issued  under  a  power  in 
the  articles.  A  statute  enacted  that  the  com- 
pany should  sell  to  another  company  its  under- 
taking for  a  specified  price,  which  left  a  large 
surplus  after  payment  of  liabilities  and  return 
of  paid-up  capital : — Held,  that  the  balance  of 
the  purchase-money,  after  satisfaction  of  the 
liabilities  of  the  company  and  the  return  of  the 
paid-up  capital,  was  not  profit  belonging  solely 
to  the  ordinary  shareholders,  but  was  divisible 
between  the  holders  of  ordinary  and  preference 
shares  in  proportion  to  the  amounts  paid  up  on 
the  shares.  Bridgewater  Navigation  Company, 
J»  re,  39  Ch.  D.  1 ;  57  L.  J.,  Ch.  809  ;  58  L.  T. 
866;  36  W.  B.  769  ;  1  Meg.  1— C.  A. 

Advance  by  Shareholders  In  exeesa  of 

Calls— Interest  on  Advanoe.J — By  an  agreement 
set  out  in  articles  of  association  a  certain  number 
of  the  shares,  called  **  vendors'  shares/'  were 
inaed  as  fully  paid  up,  aod  it  was  agreed  that 
the  holders  of  these  shares  should  be  entitled  to 
dividends  upon  so  much  thereof  as  should  be 
equal  to  the  amount  paid  up  on  the  ordinary 
shares,  and  to  interest  at  five  per  cent,  upon  the 
remainder.  71.  only  out  of  102.  was  called 
up  on  the  ordinary  shares.  The  company  went 
into  voluntary  liquidation,  and,  after  paying  all 
the  debts  and  liabilities,  the  liquidator,  having  a 
considerable  surplus  in  his  hands  for  distribu- 
tion among  the  contributories,  paid  interest  at 
fire  per  cent,  to  the  holders  of  the  vendors'  shares 
on  i.  per  share  up  to  the  date  of  the  commence- 
ment of  the  winding  up.  On  motion  made  by 
the  liquidator  for  the  order  of  the  court  as  to  the 
distribution  of  the  remaining  assets  of  the  com- 
pany :  —Held,  that  the  agreement  was  binding 
at  between  the  shareholders,  and  that  SI.  a 
share  must  be  repaid  to  the  holders  of  the 
vendors'  shares,  with  interest  thereon  at  five 
per  cent  from  the  date  of  the  winding  up  until 
soch  repayment,  before  any  payment  could  be 
made  to  the  ordinarv  shareholders.  Exchange 
Drapery  Company,  In  re,  38  Ch.  D.  171 ;  57 
LX  Ch.  914 ;  58  L.  T.  544  ;  36  W.  B.  444— 

Partly  Paid-up  Shares.]— Upon  an  issue 

of  capital  by  a  company  the  subscribers  were 
offered  the  option  of  subscribing  for  stock  and 
paying  in  full,  or  for  shares  of  20Z.  each  on  which 
3.*only  could  be  paid  unless  a  further  call  should 
be  made  by  the  company.  The  capital  was  taken 
np  by  subscribers  of  both  classes,  and  no  further 
call  made  in  respect  of  the  shares.  At  the  time 
of  this  issue  of  capital  the  Government,  by  virtue 
af  certain  Acts  of  Parliament  and  contracts  made 
thereunder,  had  the  option  of  purchasing  the 
undertaking  and  the  property  of  the  company  at 
a  price  equal  to  the  average  market  value  for 
three  years  of  the  whole  of  the  shares  and 
stock.  The  Government  exercised  their  option 
of  purchase,  and  the  purchase-money  paid  by 
them  <*»fff^H  the  total  of  the  amounts  paid 
*n>— Held,  that  the  purchase-money  ought  to 
be  divided  between  the  holders  of  stock  and  the 
shareholders  rateably,  according  to  the  actual 
contributed  by  them  to  the  capital  of 


the  company.  Somes  v.  Currie  (1  Kay  &  J.  605), 
considered.  Sheppard  v.  Scinae,  Punjaub,  and 
Delhi  Railway,  56  L.  J.,  Ch.  866  :  57  L  T.  585  ; 
36  W.  B.  1 — C.  A.  Affirmed  on  construction  of 
Special  Act,  60  L.  T.  641— H.  L.  (E.) 


Issue  of  Shares  at  a  Discount.] — Certain 


shares  of  a  joint-stock  company  were  issued  at  a 
discount  of  7s.  6d.  There  was  no  contract  in 
writing  that  these  should  be  deemed  fully  paid- 
up  shares  under  s.  25  of  the  Companies  Act,  1867 
The  company  went  into  liquidation,  and  the 
realization  of  its  property  produced  more  than 
enough  to  pay  all  the  debts  and  expenses,  leaving 
a  surplus  distributable  among  the  shareholders : — 
Held,  that  the  case  came  within  the  25th  section 
of  the  Companies  Act,  1867,  and  that  the  holders 
of  shares  on  which  12*.  6d.  only  was  paid  were 
not  entitled  to  claim  any  portion  of  the  surplus 
assets  as  against  the  fully  paid-up  shareholders 
without  first  accounting  for  the  7s.  6d.  per  share, 
being  the  discount  at  which  the  shares  were 
issued.  Newtownards  Qas  Company,  In  re 
Stephenson,  Ex  parte,  15  L,  B.,  Ir.  61 — V.-C. 

Priority — Crown — Payment  in  FulL]— The 
provisions  of  the  Bankruptcy  Act,  1883,  which 
take  away  the  priority  of  the  Crown  over  other 
creditors  in  the  distribution  of  assets  in  bank' 
ruptcy,  have  not,  by  virtue  of  the  assimilating 
provisions  contained  in  the  Judicature  Act,  1875, 
s.  10,  been  incorporated  into  the  Companies  Act, 
1862,  so  as  to  bar  the  prerogative  right  of  the 
Crown  to  issue  process  and  thus  to  obtain  pay- 
ment in  full,  in  priority  over  other  creditors,  in 
respect  of  a  debt  due  from  a  company  in  course  of 
liquidation  under  the  Companies  Act.  Oriental 
Bank  Corporation,  In  re,  The  Crown,  Ex  parte, 
28  Ch.  D.  643  :  54  L.  J.,  Ch.  327  ;  52  L.  T.  170— 
Chitty,  J. 

Letter-receivers  were  in  the  habit,  with  the 
sanction  of  the  Postmaster-General,  of  paying 
moneys  received  on  account  of  the  Post-office 
into  a  bank  to  their  private  account,  together 
with  their  own  moneys,  and  of  drawing  cheques 
both  for  their  own  purposes  and  for  payment  to 
the  Post-office.  The  bank  had  notice  that  their 
customers  were  letter-receivers,  and  drew  cheques 
for  Poet-office  purposes.  The  bank  having  gone 
into  liquidation  : — Held,  that  the  Postmaster- 
General,  on  behalf  of  the  Crown,  was  entitled  to 
Eayment  in  priority  over  other  creditors  of  the 
auk  of  the  balance  due  upon  the  letter-receivers' 
accounts  in  respect  of  Post-office  moneys.  Bex 
v.  Ward  (2  Ex.  301,  n.)  followed.  West  London 
Commercial  Bank,  In  re,  88  Ch.  D.  364  ;  67  L.  J., 
Ch.  925  ;  59  L.  T.  296— Chitty,  J. 

Preferential  Claim — Clark  or  Servant — 

Arrears  of  Salary.] — The  provisions  of  s.  4  of  the 
Companies  Act,  1883,  which  direct  that,  in  the 
distribution  of  the  assets  of  any  company  being 
wound  up,  there  shall  be  paid,  in  priority  to 
other  debts,  all  wages  or  salary  of  any  clerk  or 
servant  in  respect  of  service  rendered  to  the 
company  during  four  months  before  the  com- 
mencement of  the  winding-up  not  exceeding  60Z., 
apply  to  the  case  of  a  winding-up  commenced 
before  the  act  came  into  force.  Accordingly, 
where  a  winding-up  order  had  been  made  before 
the  commencement  of  the  act : — Held,  that  the 
company's  former  secretary,  to  whom  arrears 
were  owing,  being  a  "  clerk  or  servant "  within 
the  meaning  of  s.  4,  was  entitled  to  payment  in 


431 


COMPANY—  Winding-up. 


482 


full  of  four  months'  salary ;  but  that  such  pay- 
ment was  not  to  disturb  past  dividends.  Anglo- 
French  Co- Operative  Society,  In  re,  Petty,  Ex 
parte,  50  L.  T.  754  ;  32  W.  R.  748— Kay,  J. 

Costs  of  Landlord  of  Company.] — Pending 

the  winding-up  of  a  company  voluntarily  under 
the  supervision  of  the  court,  the  landlord  of  pre- 
mises held  by  the  company,  without  leave  of  the 
court,  brought  an  action  to  recover  possession, 
and  obtained  judgment : — Held,  that  the  land- 
lord was  entitled  to  be  paid  his  costs  in  full  in 
Eriority  to  the  general  creditors  of  the  company 
ut  not  to  an  order  for  immediate  payment. 
National  Building  and  Land  Investment  Com- 
pany, In  re,  Clitheroe,  Ex  parte,  15  L.  B.,  Ir.  47 
— Y.-C. 

Costs  of  iuocessfulj  Litigant] — In  the 

winding-up  of  a  company  the  liquidator  changed 
his  solicitor.  The  first  solicitor  claimed  to  be 
paid  his  costs.  The  liquidator  set  up  in  defence 
that  he  had,  in  pursuance  of  an  order  of  the 
court,  paid  away  part  of  the  assets  in  discharging 
the  costs  of  an  unsuccessful  attempt  to  settle  an 
alleged  shareholder  on  the  list  of  contributories, 
and  that  the  only  remaining  assets  amounted 
to  91.,  which  was  quite  insufficient  to  pay  the 
applicant,  and  which  he  claimed  to  retain  for 
costs  out  of  pocket : — Held,  that  the  successful 
litigant  whose  costs  were  ordered  to  be  paid  by 
the  liquidator,  was  entitled  to  immediate  pay- 
ment of  those  costs  in  priority  to  the  general 
costs  of  liquidation  including  costs  of  realization ; 
and  that  the  remaining  assets,  amounting  to  91., 
must  be  apportioned  equally  between  the  liqui- 
dator and  the  applicant.  Home  Investment 
Society,  In  re  (14  Ch.  D.  167),  followed ;  Dron- 
field  Coal  Company,  In  re  (23  Ch.  D.  511),  not 
followed.  Dominion  of  Canada  Plumbago  Com- 
pany, In  re,  27  Ch.  D.  33 ;  53  L.  J.,  Ch.  702  ; 
50  L.  T.  518  ;  33  W.  B.  &— C.  A. 

Action  by  Debenture-holders — Costs — 

Beceiver  and  Manager — Trustees.] — In  a  suit 
instituted  by  a  debenture-holder  of  a  company, 
on  behalf  of  himself  and  the  other  debenture- 
holders,  against  the  company  and  the  trustees  of 
a  deed,  by  which  leasehold  collieries  and  plant 
of  the  company  were  assigned  to  trustees  to  secure 
the  payment  of  the  debentures,  to  enforce  the 
security,  a  receiver  and  manager  was  appointed. 
He  worked  the  collieries  for  some  years  at  a  loss. 
Ultimately  the  property  was  sold,  the  plaintiff 
having  the  conduct  of  the  sale,  and  the  purchase- 
money  was  paid  into  court  The  fund  was-  in- 
sufficient The  original  plaintiff  became  bank- 
rupt in  the  course  of  the  proceedings,  and  another 
debenture-holder  was  substituted  for  him  as 
plaintiff.  On  the  further  consideration  of  the 
suit : — Held,  that  the  costs  and  other  expenses 
must  be  paid  out  of  the  fund  in  the  following 
order  :  (1)  The  plaintiffs  cost  of  the  realization 
of  the  property,  including  the  costs  of  an  abortive 
attempt  to  sell ;  (2)  The  balance  due  to  the 
receiver  and  manager  (including  his  remunera- 
tion) and  his  costs  of  the  suit ;  (3)  The  costs, 
charges,  and  expenses  of  the  trustees  of  the 
deed ;  (4)  The  two  plaintiffs*  costs  of  the  suit, 
pari  passu.  Batten  v.  Wedgwood  Coal  and  Iron 
Company,  28  Ch.  D.  317  ;  54  L.  J.,  Ch.  686 ; 
62  L.  T.  212 ;  33  W.  E.  303— Pearson,  J. 

—  Withdrawal  of  Members — Mutual  Loan 


Society— Payment  out  of  Special  Fund.]— The 
rules  of  an  unlimited  mutual  loan  society  pro- 
vided that  a  separate  fund  should  be  formed  by 
the  subscriptions  of  members  joining  in  each 
year,  which  subscriptions  might,  with  the  con- 
sent of  the  directors,  be  paid  in  advance.    The 
accounts  of  each  fund  were  to  be  kept  distinct, 
and  the  members  were  to  receive  advances  called 
"  appropriations,"  out  of  the  accumulations  of 
the  particular  fund  to  which  they  subscribed. 
The  appropriations  were  to  be  repaid  by  instal- 
ments extending  over  twenty  years.    Members 
might  withdraw  on  giving  notice,  and  were  in 
that  case  entitled  to  a  return  of  their  subscrip- 
tions, together  with  the  payment  of  bonuses 
declared  in  respect  of  their  shares,  such  payments 
to  be  made  in  the  order  of  the  dates  of  their 
notices,  and  only  out  of  moneys  received  after  the 
dates  of  their  notices  in  repayment  of  appropria- 
tions.   When  appropriations  had  been  made  to 
all  members  of  a  fund,  or  before  that  under  cer- 
tain circumstances,  the  fund  was  to  be  declared 
closed  and  the  accumulations  were  to  be  divided 
among  the  continuing  members  of  the  fond. 
The  company  was  wound  up  voluntarily,  and  the 
liquidator  applied  for  the  direction  of  the  court 
as  to  the  distribution  of  the  assets  among  the 
members,   there    being   no    outside   creditors. 
There   were  four   classes   of   members  whose 
interests  were  in  dispute :  (1)  Members  who  had 
given  notice  of  withdrawal  after  the  closing  of 
their  funds,  and  before  the  commencement  of 
the  winding-up;  (2)  Members  who  had  given 
notice  of  withdrawal  after  the  closing  of  their 
funds,  but  before  the  commencement  of  the 
winding-up ;  (3)  Continuing  members  who  had 
paid  subscriptions  in  advance;  (4)  Containing 
members  who  had  not  paid  any  subscriptions  in 
advance : — Held,  by  Kay,  J.,  that  the  provision 
for  the  repayment  of  withdrawing  members  ont 
of  the  particular  fund  ceased  to  apply  on  the 
winding-up  of  the  company,  and   that  those 
members  who  had  given  notice  of  withdrawal 
before  the  commencement  of  the  winding-up 
had  no  priority  over  the  continuing  members  :— 
Held,  also,  that  the  continuing  members  who  had 
paid   their  subscriptions   in   advance   had  no 
priority  over  the  other  members : — But,  held,  by 
the  Court  of  Appeal,  that,  according  to  the  true 
construction  of  the  articles,  members  who  had 
given  notice  of  withdrawal  before  the  closing  of 
their  fund  and  before  the  commencement  of  the 
winding-up  had  a  charge  on  the  repayments  of 
appropriations  belonging   to    their   particular 
funds ;  that  such  charge  did  not  cease  on  the 
closing  of  the  fund  or  on  the  winding  up,  and 
that  they  were  therefore  entitled  to  be  paid 
in  full  out  of  such  repayments  in  priority  to 
all  other  members.     Blackburn  and  District 
Benefit  Building  Society,  In  re  (10  App.  Cas. 
33),  followed ;  Mutual  Society,  In  re  (24  Ch.  D. 
425,  n.),  distinguished.    Alliance  Society,  In  re, 
28  Ch.  D.  559 ;  54  L.  J.,  Ch.  540 ;  52  L.  T.  695 
— C.A. 

Depositors — Outside    Creditors — Hon- 

Members—  Notices  of  Withdrawal.]— A  registered 
company,  carrying  on  business  in  the  nature  of 
that  of  a  building  society,  had  power  to  receive 
money  by  way  of  deposit  from  any  person  or 
partnership.  Deposits  were  withdrawable  upon 
giving  a  certain  notice,  according  to  the  amount 
thereof.  In  December,  1881,  C.  deposited  3001. 
with  the  company,  upon  which  interest  was  duly 


433 


COMPANY—  Winding-up. 


484 


paid  until  June,  1884.    In  December,  1884,  C. 
giTe  notice  that  he  required  to  withdraw  his 
deposit,  hat  the  same  was  not  repaid,  nor  was 
in j  date  fixed  for  its  repayment.    In  January, 
1885.  a  petition  was  presented  for  the  winding 
np  of  the  company,  and   it   was  accordingly 
ordered  to  be  wound  up.    The  question  arose 
whether,  in  the  distribution  of  the  funds  of  the 
company,  C.and  all  other  unpaid  depositors  who 
aid  given  notice  of  withdrawal  of  their  deposits 
before  the  date  of  the  presentation  of  the  peti- 
tion, were  entitled  to  rank  as  creditors  of  the 
company  in  priority  to  those  depositors  who  had 
not  giyen  such  notice  at  that  time : — Held,  that 
there  was  no  priority  between  the  depositors,  or 
between  them  and  the  outside  creditors,  but  that 
they  must  all  rank  pari   passu.     Progressive 
Investment  and  Building  Society,  In  re,  Corbold, 
&  parte,  64  L.  T.  46— Chitty,  J.    See  also  cases, 
ante,  eoL  280. 

Director*'  Fees  Postponed  to  Claims  of 

Oittide  Creditor*,]— The  articles  of  association 
cf  a  company  provided  that  any  director  should 
vacate  his  office  if  he  ceased  to  be  a  member, 
and  that  the  remuneration  of  directors  should 
be  snch  as  should  be  determined  by  the  company 
in  general  meeting.  The  company  was  ordered 
to  be  wound  np  compulsorily  in  May,  1884.  By 
an  agreement  dated  the  30th  of  May  in  the  same 
year,  and  subsequently  confirmed  by  the  court, 
the  official  liquidator  agreed  to  sell  all  the  assets 
of  the  company  for  the  sum  of  7s.  3d.  in  the 
poand  on  the  claims  provable  against  the  com- 
pany. The  chief  clerk  by  his  certificate  certified 
that  the  claims  set  forth  in  the  1st  and  2nd 
asaednleshad  been  allowed  against  the  company, 
bat  that  the  claims  set  forth  in  the  2nd  schedule 
were  allowed  to  the  persons  therein  named  for 
their  fees  as  directors,  and  were  payable  only 
after  all  the  other  creditors  of  the  company  had 
been  paid  in  fulL  One  of  the  directors,  who 
was  not  present  when  the  certificate  was  settled, 
took  out  a  summons  asking  that  the  official 
liquidator  might  be  ordered  to  pay  him  the 
dividend  of  Is.  3d.  on  the  debt  found  due  to  him 
for  fees : — Held,  that  a  sum  due  to  a  director  for 
foes  was  a  sum  due  to  him  in  his  character  of  a 
member  "  by  way  of  dividends,  profit,  or  other- 
wise," within  sab-s.  7  of  8.  38  of  the  Companies 
Act, 1862,  and  must  be  postponed  until  after  the 
outride  creditors  had  been  paid  in  foil.  Leicester 
Ckb  and  County  Race  Course  Company,  In  re, 
*>Ch.  D.  629;  65  L.  J.,  Ch.  206;  53L.T.340; 
U  W.  B.  14— Pearson,  J. 

9.  INVALID  AND  PROTECTED  TRANS- 
ACTIONS. 

Orier  and  Disposition— Judicature  Act,  1875, 
1  10l] — The  Bankruptcy  Rules  as  to  reputed 
ownership  are  not  imported  into  the  winding  up 
of  companies  by  a.  10  of  the  Judicature  Act,  1875. 
Gsrringe  v.  Irwell  India  Rubber  and  Qutta 
Pircka  Works,  34  Ch.  D.  128  ;  56  L.  J.,  Ch.  85  ; 
KL.  T.  572  ;  35  W.  R.  86— C.  A. 


m  Action — Assignment  of  Bent  — 
Ystiet.] — A  limited  company  being  indebted  to 
H.  fc  Co.  on  an  acceptance,  wrote  to  them  a  let- 
ter in  January,  1885,  in  the  following  terms : — 
u  We  hold  at  your  disposal  the  sum  of  424/.  due 
from  Messrs.  C.  6  Co.  for  goods  delivered  by  us 
to  them  up  to  the  31st  of  December,  1884,  until 


the  balance  of  our  acceptance  for  660Z.  has  been 
paid.  No  notice  was  given  by  H.  &  Co.  to  C.  & 
Co.  until  the  5th  of  February,  1885,  which  was 
after  a  petition  for  winding  up  the  company  had 
been  presented  : — Held,  that  the  letter  was  an 
immediate  equitable  assignment  to  H.  &  Co.  of 
all  the  debt  due  from  C.  &  Co.  to  the  amount  of 
425Z.,  and  was  complete  as  between  the  assignors 
and  the  assignees  without  any  notice  to  C.  &  Co., 
and  that  as  the  Bankruptcy  Rules  as  to  reputed 
ownenhip  do  not  apply  to  the  winding  up  or  com- 
panies, the  debt  did  not  form  part  of  the  assets 
of  the  company  at  the  commencement  of  the 
winding-up.  Crumlin  Viaduct  Works  Company, 
In  re  (11  Ch.  D.  756),  approved.    lb. 

Fraudulent  Preference— Agreement  to  apply 
Debt  due  from  Company  to  Shareholders  in  pay- 
ment of  future  Calls.]— K.,  being  a  shareholder 
in  a  company  whose  directors  were  empowered 
to  receive  from  shareholders  payments  in 
advance  of  future  calls,  purchased  a  debt  due 
from  the  company  and  requested  the  directors 
to  apply  a  sufficient  part  of  the  debt  in  paying 
up  his  shares  in  full.  The  directors  passed  a 
resolution  that  the  debt  should  be  so  applied. 
Nothing  further  was  done  to  carry  the  trans- 
action into  effect,  there  was  no  entry  in  refer- 
ence to  it  in  the  books  of  the  company  other 
than  the  minute  of  the  resolution,  nor  was  any 
contract  registered  as  to  the  shares  within  s.  25 
of  the  Companies  Act,  1867.  In  the  subsequent 
winding-up  of  the  company : — Held,  that  the 
transaction  was  void  as  a  fraudulent  pre- 
ference, and  that  E.  was  therefore  liable  for 
calls  made  in  the  winding-up  in  respect  of  the 
shares.  Ferrao's  Case  (9  L.  R.  Ch.  365)  distin- 
guished. Land  Development  Association*  In  re, 
Kent's  Case,  39  Ch.  D.  259 ;  57  L.  J.,  Ch.  977  ; 
59  L.  T.  449  ;  86  W.  R.  818 ;  1  Meg.  69— C.  A. 

Dealing  by  Company  in  Course  of  Busi- 
ness— Payment  by  Directors  of  Debt  due  to  them.] 
— B.  and  H.  who  were  directors  of  a  limited  com- 
pany, B.  being  the  managing  director,  advanced 
moneys  from  time  to  time  to  the  company 
to  purchase  goods  and  discharge  pressing 
claims.  In  September,  1884,  the  company's 
premises  were  burnt  down,  and  an  insurance 
company  admitted  their  liability  to  pay  3000Z.  in 
respect  of  the  damage.  B.  and  H.  then  held  a 
"directors'  meeting,"  two  directors  forming  a 
quorum,  and  passed  resolutions  for  commencing 
actions  against  the  company  for  the  moneys  they 
had  advanced  and  for  instructing  solicitors  to  ap- 
pear and  consent  on  behalf  of  the  company  to 
immediate  judgment.  The  actions  were  accord- 
ingly brought  and  immediate  judgment  was 
taken  by  consent,  and  thereupon  (the  limited 
company  being  at  the  time  practically  insolvent), 
B.  and  H.  obtained  the  30002.  from  the  insurance 
company  under  garnishee  orders,  and  applied  it 
in  part  payment  of  the  debts  due  to  themselves 
by  the  company.  The  company  had  issued  mort- 
gage debentures,  each  of  which  was  in  form  a 
first  charge  upon  all  the  property  of  the  company 
both  present  and  future,  including  uncalled 
capital,  subject  to  the  condition  that  such  charge 
should  be  a  floating  security,  and  that  the  com- 
pany might  in  the  course  of  its  business  deal 
with  the  property  charged  in  such  manner  as 
the  company  might  think  fit  ;  and  in  December, 
1884,  the  holder  of  one  of  these  debentures 
brought  an  action  on  behalf  of  himself  and  the 


435 


COMPANY—  Winding-up. 


436 


other  holders  of  the  debentures  against  the  com- 
pany and  B.  and  H.,  and  claimed  (1)  repay- 
ment of  the  3000/.  by  B.  and  H.,  and  (2)  the 
usual  relief  in  a  debenture-holder's  action.  Two 
days  after  the  issue  of  the  writ  in  this  action  a 
petition  was  presented  for  winding-up  the  com- 
pany, and  shortly  afterwards  a  winding-up  order 
was  made.  At  the  trial  of  the  action  the  plaintiff 
relied  on  s.  164  of  the  Companies  Act,  1862,  as 
entitling  him  to  recover  the  3000/.  on  the  ground 
of  *<  fraudulent  preference :  "—-Held,  that  so  much 
of  the  plaintiff's  claim  as  was  based  on  fraudulent 
preference  must  be  dismissed,  and,  secondly, 
that  the  transaction  complained  of ,  being  in  fact 
the  payment  of  a  just  debt  while  the  company 
was  still  a  going  concern,  was  a  dealing  by  the 
company  in  course  of  business  within  the  con- 
dition of  the  debentures.  Willmott  v.  London 
Celluloid  Co.,  34  Ch.  D.  147  ;  56  L.  J.,  Ch,  89  ; 
65  L.  T.  696  ;  35  W.  R.  145—0.  A. 

Loan  by  Officer— Repayment  to,  after 

Petition  presented.]— G.  the  auditor  and 
accountant  of  a  limited  liability  company,  at  the 
pressing  instance  of  its  secretary,  on  the  5th 
February,  advanced  1,600/.  to  the  company,  to 
enable  it  to  meet  urgent  liabilities,  on  the  per- 
sonal undertaking  of  the  secretary  that  the  sum 
advanced  should  be  repaid  on  the  4th  March 
following,  when  it  was  expected  that  a  meeting 
of  the  shareholders  would  have  authorized 
.additional  capital  to  be  raised  by  unissued 
debentures,  which  would  enable  the  company  to 
pay  G.  and  carry  on  its  business.  No  security  was 
asked  for,  or  given,  though  G.  was  aware  of  the 
embarrassment  of  the  company.  The  share- 
holders, at  their  meeting  on  the  3rd  March,  re- 
fused to  authorize  the  farther  issue  of  debentures 
and  passed  a  resolution  to  wind  up  the  company, 
and  a  petition  for  a  voluntary  winding  up  was 
presented  on  the  6th  and  an  order  for  winding 
up  was  made  on  the  19th  March.  On  the  7th, 
10th,  and  13th  March  the  secretary,  with  the 
sanction  of  the  directors,  repaid  out  of  the  as- 
sets of  the  company,  the  1,500/.  in  three  sums 
which  were  entered  in  the  cash  book  as  payments 
on  the  3rd  March  : — Held,  that  the  transaction 
was  a  fraudulent  preference  of  G.  under  the 
Bankruptcy  (Ireland)  Act,  1872,  s.  63,  and  also 
void,  under  the  Companies  Act,  1862,  s.  153,  as 
the  payments  to  G.  were  made  after  the  petition 
for  winding  up  had  been  presented ;  and  on  the 
application  of  the  official  liquidator  G.  was 
ordered  to  repay  the  money.  Daly  A'  Co.,  In  re. 
19  L.  R.,  It.  83— M.  R. 

Agreement  for  General  Lien.]— See  Llangen- 
nech  Coal  Company,  In  re,  ante,  col.  293. 

Contract  by  Foreign  Branch— Ho  Notice  of 
Winding-up.] — In  consideration  of  moneys  paid 
in  at  a  distant  foreign  branch  of  a  banking 
company  whose  head  office  was  in  London, 
drafts  on  the  head  office  were  given  after  pre- 
sentation of  a  petition  to  wind  up  the  company, 
and  appointment  of  a  provisional  liquidator  in 
England,  but  before  (from  want  of  direct  tele- 
graphic communication)  any  notice  of  the  stop- 
page of  the  bank  in  London  had  been  received 
at  the  foreign  branch,  and  before  the  date  of  the 
winding-up  order : — Held,  that  the  contract 
which  was  entered  into  by  the  officers  of  the 
foreign  branch  on  behalf  of  the  company  with- 
out any  notice  of  the  winding-up  proceedings, 


and  therefore  before  revocation  of  their  autho- 
rity, was  not  invalidated  by  the  Companies  Act, 
1862,  s.  153  ;  and  accordingly  that  the  creditors 
in  respect  of  such  transaction  were  not  entitled 
to  have  their  money  refunded,  as  on  the  footing 
of  a  void  transaction,  but  merely  to  prove  for 
the  amount  under  the  winding-up  pari  passu 
with  the  other  creditors.  As  between  the  holdeis 
for  value  of  the  drafts  and  the  persons  by  whom 
the  consideration  was*  paid,  the  holders  were 
held  entitled  to  prove.  Oriental  Bank  Corpora- 
tion, In  re,  Ouiltemin,  Ex  parte,  28  Ch.  D.  634 ; 
54  L.  J.,  Ch»  322  ;  52  L.  T.  167— Chitty,  J. 

Payment  by  Company  subsequently  to  com- 
mencement of  Winding-up.]— Payment  by  a 
company,  after  the  commencement  of  the 
winding-up,  of  a  debt  previously  due  is  not,  even 
in  the  case  of  a  perfectly  bona  fide  debt  of  the 
company,  a  transaction  to  which  the  court  will, 
in  the  exercise  of  its  discretion  under  s.  163,  give 
validity.  Civil  Service  and  General  Store,  In 
re,  67  L.  J.,  Ch.  119  ;  58  L.  T.  220— Chitty,  J. 

On  the  same  day  on  which  a  petition  for 
winding-up  a  company  was  presented,  the  com- 
pany agreed  to  pay  a  trade  creditor,  who  was 
ignorant  of  the  presentation  of  a  petition,  a  sum 
of  175/.,  being  part  of  a  debt  of  3202.  previously 
due  to  him,  on  condition  that  he  should  continue 
to  supply  the  company  with  goods  for  cash  pay- 
ment. The  175/.  was  paid  after  the  presentation 
of  the  petition,  and  also  13/.  for  goods  supplied. 
A  winding-up  order  having  been  made,  the  pay- 
ment of  the  13/.  was  allowed,  but  the  1757.  was 
ordered  to  be  repaid.    lb. 

Payments  on  behalf  of  Company.] — Payments 
made  on  behalf  of  a  company,  even  with  the 
authority  of  the  board  of  directors,  will  not  be 
allowed  in  the  winding-up  of  the  company, 
unless  they  have  been  made  for  purposes  strictly 
within  the  objects  for  which  the  company  was 
established.  Branksea  Island  Company,  In  re, 
Bentinck,  Ex  parte,  1  Meg.  12— C.  A. 

Interest  on  Advances  to  Company.]— Interest 
on  advances  to  the  company  can  be  allowed  only 
if  there  is  a  valid  agreement  between  the  com- 
pany and  the  lender  for  payment  of  interest, 
and  although  entries  in  the  books  of  the  com- 
pany are  prima  facie  evidence  against  the  com- 
pany, still,  if  they  can  be  shown  to  have  been 
made  erroneously  or  improperly,  then  the  evi- 
dence which  they  would  otherwise  supply  will 
be  rejected,    lb. 

Dispositions  of  Property  pending  Petition— 
Anticipatory  Sanction.] — In  an  action  by  de- 
benture-holders of  a  company  to  enforce  their 
security,  followed  by  a  petition  for  winding- 
up  not  yet  heard,  the  court,  being  satisfied  that 
the  transaction  was  one  for  the  benefit  of  all 
possible  parties,  made  an  order  both  in  the 
action  and  in  the  winding-up  authorising  the 
plaintiffs  and  defendants  to  do  all  necessary 
acts  for  acquiring  certain  leases,  the  leases  to 
be  handed  to  the  trustees  for  the  debenture- 
holders  notwithstanding  section  153  of  the  Com- 
panies Act,  1862.  Car  den  v.  Albert  Palace 
Association,  56  L.  J.,  Ch.  166  ;  66  L.  T.  831— 
Chitty,  J. 

Money  placed  to  Credit  of  Company  to  bo  held 
in  Trust.] — B.,  for  the  purpose  of  enabling  a 


487 


COMPANY— Winding-up. 


488 


company  to  hare  a  fictitious  credit,  in  case  of 
inquiries  at  their  bankers,  placed  money  to  their 
credit  which  they  were  to  hold  in  trust  for  him. 
Some  of  the  money  haying  been  drawn  ont  with 
B.'s  consent,  and  the  company  haying  been 
ordered  to  be  wound  up  while  a  balance  re- 
mained : — Held,  that  B.  could  not  claim  to  have 
the  balance  paid  to  him.  Great  Berlin  Steam- 
hat  Company,  In  re,  26  Ch.  D.  616  ;  54  L.  J.,  Ch. 
ti ;  61 L.  T.  445— C.  A. 


10.  SCHEME  OF  ARRANGEMENT. 

Between  secured  Creditors  —  Sanction  by 
fart] — A  company  registered  in  1881,  issued 
debentures  to  the  extent  of  60,000Z.,  which  did 
not  charge  its  property,  but  were  secured  by  a 
trust  deed,  made  between  the  company  and  trus- 
tees for  the  debenture-holders.  The  trust  deed 
expressly  provided  that  the  debenture-holders 
might  assent  to  any  modification  of  the  previ- 
sions thereof  by  passing  resolutions  to  that  effect. 
Such  resolutions  were  to  be  passed  at  meetings 
summoned  by  the  trustees  of  the  deed,  notice 
whereof  was  to  be  given  by  means  of  advertise- 
ments. A  meeting  of  the  debenture-holders  was 
afterwards  duly  called,  and  resolutions  were 
passed  for  the  purpose  of  creating  a  rent  charge 
of  7202.  per  annum,  and  the  debenture-holders 
gave  to  the  holders  of  the  rent-charge  priority 
wer  the  debentures.  Subsequently  the  company 
determined  upon  a  voluntary  winding-up.  In 
the  course  of  the  winding-up  proceedings,  the 
liquidator  prepared  a  scheme  of  arrangement, 
pursuant  to  the  Joint  Stock  Companies  Arrange- 
ment Act,  1870,  under  w,hich  the  assets  of  the 
company  were,  in  the  first  place,  to  be  charged 
with  the  payment  of  the  sum  of  20,000Z.  (whereof 
12,000/.  was  to  represent  the  claims  of  the  holders 
of  the  rent  charge,  and  8,000/.  certain  fresh 
moneys  obtained),  and  in  the  second  place,  with 
the  payment  of  the  60,0002.  debenture  moneys. 
The  scheme  having  been  approved  by  the  statu- 
tory majority  both  of  the  deDenture-holders  and 
the  rent-charge  security  holders,  a  petition  was 
presented  to  the  court  for  its  sanction  thereto. 
One  of  the  debenture-holders  opposed  the  peti- 
tion on  the  ground  that  the  proposed  scheme  was 
not  fair  to  the  debenture-holders ;  that  the  ma- 
jority of  the  debenture-holders  had  no  power  to 
bind  the  minority ;  and  that,  if  they  had  such 
power,  the  resolution  of  the  debenture-holders 
approving  the  scheme  was  invalid,  because  the 
notice  sent  round  to  the  debenture-holders  did 
not  state  that  there  was  a  question  of  priority 
between  the  secured  creditors  of  the  company : — 
Held,  that  the  scheme  was  within  the  scope  of 
the  authority  given  by  the  trust  deed,  and  was 
a  fair  scheme,  such  as  the  court  ought  to  sanc- 
tion under  the  Joint  Stock  Companies  Arrange- 
ment Act,  1870.  Held,  also,  that  the  notice  to 
the  debenture-holders  was  good,  inasmuch  as  it 
referred  to  the  scheme  which,  on  the  face  of  it, 
P*t  a  priority  to  the  holders  of  the  rent  charge. 
Ihminien  cf  Canada  Freehold  Estate  and 
Imber  Company,  In  re,  55  L.  T.  847— Chitty,  J. 

Assent  of  Creditors  and  Shareholders.] —A 
Rhone  under  a.  2  of  33  fc  34  Vict.  c.  104,  had 
received  the  sanction  of  the  creditors  of  the 
company,  bat  the  court  directed  that  the  scheme 
mid  also  receive  the  assent  of  the  share* 


holders  by  special  resolution  under  s.  161  of  the 
Companies  Act,  1862.  Akanhoo  Mining  Com- 
pany, In  re,  1  Meg.  43 — Chitty,  J. 


11.  RECONSTRUCTION. 

Bight  of  dissentient  Member  to  Inspection, 
before  Arbitration.] — A  banking  company  being 
in  the  course  of  voluntary  winding-up  for  the 
purpose  of  reconstruction,  one  of  the  members 
having  been,  with  the  others,  offered  5*.  in  the 
pound  for  her  holding  in  the  old  company,  gave 
notice  to  arbitrate  under  the  161st  section,  as 
a  dissentient.  She  then  claimed  the  right  to 
examine  the  books  of  the  company,  in  order  to 
see  whether  it  would  be  better  for  her  to  accept 
the  offer  of  5*.,  or  go  on  with  the  arbitration. 
Application  refused,  with  costs  of  adjournment 
into  court.  Glamorganshire  Banking  Company, 
In  re,  Morgan's  Case,  28  Ch.  D.  620 ;  54  L.  J., 
Ch.  765  ;  51  L.  T.  623  ;  33  W.  R.  209— V.-C.  B. 


12.  EXAMINATION  OF  WITNESSES  AND 

BOOKS. 

Bight  of  Plaintiff  in  Separate  Action  against 
Company.]  —  A  winding-up  order  was  made 
against  a  company  in  December,  1884.  In 
November,  1885,  P.,  who  was  a  shareholder  in 
the  company,  and  had  also  entered  into  an 
agreement  with  the  company  and  had  been 
placed  on  the  list  of  contnbutories,  commenced 
an  action  against  the  company  and  its  directors 
for  specific  performance  of  his  agreement,  dam- 
ages, &c.  In  March,  1886,  P.  obtained  an  order 
in  the  winding-up,  under  s.  115  of  the  Com- 

Sanies  Act,  1862,  for  the  examination  of  the 
irectors.  Chitty,  J.,  directed  that  the  examina- 
tion should  be  stayed  until  after  the  trial  of  the 
action  on  the  ground  that  the  order  was  in  effect 
for  the  benefit  of  the  plaintiff  in  the  action, 
rather  than  for  the  purposes  of  the  winding-up  : — 
Held,  on  appeal,  that  prima  facie  the  powers 
under  s.  115  of  the  act  were  to  be  exercised  for 
the  purposes  of  the  winding-up,  that  the  pro- 
posed examination  would  not  be  beneficial 
except  to  the  plaintiff  in  his  action,  and  that 
the  plaintiff  ought  not,  because  the  company 
happened  to  be  in  liquidation,  to  have  the  ad- 
ditional benefit  of  the  powers  of  the  section. 
Imperial  Continental  Water  Corporation,  In 
re,  33  Ch.  D.  314  ;  56  L.  J.,  Ch.  189 ;  55  L.  T. 
47— C.  A. 

Examination  of  Officer  —  Fending  Aotion 
against  him.] — The  pendency  of  an  action 
against  an  officer  of  a  company  which  is  in 
course  of  being  wound-up  is  not  sufficient  to 
justify  him  in  refusing  to  be  examined  under 
s.  115  of  the  Companies  Act,  1862,  and  it 
makes  no  difference  whether  such  action  was 
commenced  before  or  after  the  winding-op. 
The  official  liquidator  of  a  company  may  pro- 
perly apply  s.  115  for  the  purpose  of  ascer- 
taining whether  proceedings  should  be  continued 
or  not  against  an  officer  of  the  company,  or 
against  any  other  person.  Metropolitan  (Brush") 
Electric  Light  and  Power  Company,  In  re, 
Leaner,  Ex  parte,  61  L.  T.  817— Kay,  J. 

Bight  of  Contributory  to  Examine— Jurisdic- 
tion to  discharge  Order  made  in  Chambers.]— 


489 


COMPANY—  Winding-up. 


440 


An  order  was  made  under  s.  115  of  the  Com- 
panies Act,  1862,  in  the  winding-up  of  the  L. 
company,  upon  the  application  of  the  liquidator, 
for  the  examination  of  certain  directors  of  the 
company.  C,  who  had  been  served  with  a  notice 
as  a  contributory,  but  who  disputed  his  liability, 
obtained  an  order  giving  him  and  his  solicitor 
leave  to  attend  at  any  appointment  for  the 
examination  of  directors  under  s.  115,  and  to 
examine  and  cross-examine  the  witnesses.  This 
order  was  made  by  the  chief  clerk,  and  was  not 
brought  before  the  judge  in  person.  It  appeared 
that  C.'s  solicitor  was  also  acting  as  solicitor  for 
a  shareholder  of  the  company  who  was  suing  the 
directors  for  alleged  fraudulent  statements  in 
the  prospectus :— -Held,  that  although  an  order 
for  examination  under  s.  115  is  an  ex  parte  one, 
and  is  not  generally  subject  to  appeal,  a  witness 
has  vet  a  right  to  bring  the  matter  before 
the  judge  personally  by  a  motion  to  discharge, 
and  that  in  the  present  case  the  order  for  exami- 
nation by  C.  was  not  a  proper  one,  and  should  be 
discharged.  London  and  Lancashire  Paper 
Mills  Company,  In  re,  57  L.  J.,  Ch.  766 ;  59 
L.  T.  362— ttorth,  J. 

Who  may  Attend  Examination.]— Admitted 
creditors  of  a  company  in  course  of  winding-up 
have  not  a  general  right  under  rule  60  of 
the  General  Order  of  the  11th  of  November, 
1862,  to  attend  an  examination  of  witnesses 
before  an  examiner  summoned  under  8.  115  of 
the  Companies  Act,  1862.  But  the  court  in  its 
discretion  may  allow  the  attendance.  The  word 
"  proceedings  "  in  that  rule  cannot  be  held  to 
include  an  examination  before  an  examiner 
which  is  strictly  of  a  private  character.  Empire 
Assurance  Corporation,  In  re  (17  L.  T.  488), 
and  Merchants9  Company,  In  re  (4  L.  R.,  Eq. 
454),  discussed.  Grey's  ^Brewery  Company,  In 
re,  25  Ch.  D.  400 ;  53  L.  J.,  Ch.  262 ;  50  L.  T. 
14  ;  32  W.  R.  381— Chitty,  J. 

In  the  winding-up  of  a  company  persons  who 
claimed  to  be  creditors  obtained  leave  to  attend 
all  the  proceedings  at  their  own  expense : — 
Held,  that  notwithstanding  this  order,  they 
ought  not  to  be  allowed  to  be  present  at  the 
examination  of  a  former  official  of  the  com- 
pany, conducted  by  the  liquidator  under  s.  115 
of  the  Companies  Act,  1862.  Norwich  Equitable 
Fire  Assurance  Company,  In  re,  27  Ch.  D.  515  ; 
64  L.  J.,  Ch.  264  ;  51  L.  T.  404 ;  32  W.  R.  964 
— C.  A. 

Production  of  Books— Subpoena  or  Summons.] 
— Where  a  company  is  being  wound  up  under 
the  Companies  Acts,  and  an  examiner  has  been 
appointed,  the  proper  mode  of  obtaining  the 
production  before  the  examiner  of  any  books  or 
documents  relating  to  the  company,  in  the  cus- 
tody or  power  of  any  officer  or  person  under  the 
115th  section  of  the  Companies  Act,  1862,  is  not 
by  subpoena  but  by  summons  according  to  Form 
No.  54  in  the  3rd  Schedule  to  the  General  Orders 
of  November,  1862.  Credit  Company  v.  Webster, 
63  L.  T.  419— Kay,  J. 

Depositions  —  Admissibility.]  —  Depositions 
taken,  under  the  Companies  Act,  1862,  s.  115,  by 
the  liquidator  of  a  company  which  is  being 
wound  up  are  not  admissible  in  evidence  against 
persons  in  whose  absence  they  have  been  taken, 
even  though  such  persons  have  obtained  an  order 
requiring  the  liquidator  to  specify  the  deposi- 
tions or  parts  of  depositions  on  which  he  intends 


to  rely  against  them,  and  he  has  accordingly 
specified  the  depositions  which  he  desires  to  use. 
Great  Western  Forest  of  Dean  Coal  Consumers' 
Company,  In  re,  Crawshay's  ease,  54  L.  J.,  Ch. 
506  ;  33  W.  R.  444— Pearson,  J. 

Putting   on   File.] — Depositions  taken 

under  s.  115  of  the  Companies  Act,  1862,  need 
not  be  put  upon  the  liquidator's  file  of  proceed- 
ings as  soon  as  taken  under  rule  58  of  the  General 
Order  of  the  11th  of  November,  1862.  London 
and  Lancashire  Paper  Mills  Co.,  In  re,  supra. 

Inspection  of  Documents — When  ordered.]— 
The  power  given  by  the  Companies  Act,  1862, 
s.  156,  of  ordering  inspection  of  the  books  and 
papers  of  a  company  which  is  in  course  of  wind- 
ing-up is  prima  facie  to  be  exercised  only  for  the 
purposes  of  the  winding-up,  and  for  the  benefit 
of  those  who  are  interested  in  the  winding-up 
and  will  not  in  general  be  exercised  for  the  par 
pose  of  enabling  individual  shareholders  to 
establish  claims  for  their  personal  benefit 
against  the  directors  or  promoters.  The  section 
only  applies  to  books  and  papers  in  the  pos- 
session of  the  company,  and  does  not  enable  the 
court  to  decide  any  question  of  right  against 
third  parties  who  have  the  books  in  their  pos- 
session and  claim  to  be  entitled  to  such  pos- 
session. North  Brazilian  Sugar  Factories,  In  re, 
37  Ch.  D.  83 ;  67  L.  J.,  Ch.  110  ;  58  L.  T.  4 
— C.  A.  See  also  Glamorganshire  Banking  Co,, 
In  re,  ante,  col.  438. 

Cost-Book  Mine.]— The  practice  of  the 

Stannaries  Court  is  the  same  as  that  of  the  High 
Court  of  Justice,  that  the  mere  fact  of  a  petition 
is  not  enough  to  justify  an  order  for  inspection 
of  books.  But  if  grounds  are  shown,  the  petition 
may  properly  be  ordered  to  stand  over  to  allow 
the  petitioner  to  enforce  his  right  as  a  share- 
holder to  inspection.  The  right  of  inspection 
under  the  22nd  section  of  the  Stannaries  Act, 
1855,  is  personal  to  the  shareholder,  and  does 
not  extend  to  his  solicitors  or  agents.  West 
Devon  Great  Consols  Mine,  In  re,  27  Ch.  D. 
106  ;  51  L.  T.  841 ;  32  W.  R.  890— C.  A. 


13.  PRACTICE. 
In  ease  of  Petitions.]— See  ante,  cola.  414  et  seq. 

Under  s.  165  of  Companies  Aot,  1868.]— &* 
ante,  coL  421. 


Commencement  of  Winding-up  — 
Liquidator— Resolution  for  Voluntary  Winding- 
up.  1 — On  the  day  of  the  presentation  of  a 
creditor's  petition  for  the  compulsory  winding- 
up  of  a  company  a  provisional  liquidator  was 
appointed  under  that  petition.  A  meeting  of 
the  company  was  afterwards  held,  at  which  a 
resolution  was  passed  for  a  voluntary  winding- 
up,  and  at  a  subsequent  meeting  this  resolution 
was  confirmed.  A  supervision  order  was  then 
made  on  the  petition  : — Held,  that  the  winding- 
up  must  be  treated  as  having  commenced  at  the 
date  of  the  confirmatory  resolution,  and  not  at 
the  date  of  the  appointment  of  a  provisional 
liquidator.  Emperor  Life  Assurance  Society, 
In  re,  Holliday,  Ex  parte,  31  Ch,  D.  78; 
55  L.  J.,  Ch.  3  ;  63  L.  T.  691 ;  34  W.  R.  118- 
V.-C.  B. 


441 


COMPANY—  Winding-up. 


442 


Yetting  Order— Ex  parte.]— A  vesting  order 
under  the  Companies  Act,  1862,  8.  203,  cannot, 
except  under  special  circumstances,  be  obtained 
ex  parte.  Albion  Mutual  Permanent  Building 
Society,  In  re,  67  L.  J.,  Ch.  248— Chitty  J. 

service  of  Notices  out  of  the  Jurisdiction.] — 
A  notice  under  the  General  Order  of  Nov.  11, 
1862,  r.  30,  of  an  appointment  to  settle  the  list 
of  contributories  of  a  company  may  be  served 
oat  of  the  jurisdiction  in  manner  provided  by 
rale  60.  Anglo-African  Steamship  Company, 
7s  ff  (32  Ch.  D.  348)  distinguished.  Nathan 
Newman  <f  Co.,  In  re,  35  Ch.  D.  1 ;  56  L.  J., 
Ch.  752;  66  L.  T.  95  ;  35  W.  R.  293— C.  A. 

The  court  has  no  jurisdiction  to  give  leave  to 
save  notices  of  orders  and  other  proceedings 
in  the  winding-up  of  a  company  on  persons 
leading  out  of  the  jurisdiction.  Anglo-African 
Steamship  Company,  In  re,  32  Ch.  D.  348  ; 
55  L.  J.,  Ch.  579  ;  54  L.  T.  807 ;  34  W.  R.  554— 
C.A. 

—  Summons  for  Payment  out] — A  com- 
pany being  in  liquidation,  an  order  was  made 
for  closing  the  liquidation  upon  payment  of  a 
dividend  upon  the  unpaid  debts  of  the  company. 
One  of  the  claims  certified  to  be  due  was  made 
in  the  names  of  S.  and  P.,  and  the  dividend 
npon  this  claim  was  paid  into  court.  S.  claimed 
to  be  entitled  to  the  whole  sum  discharged  from 
soy  claim  of  P.,  who  was  resident  out  of  the 
jurisdiction,  and  took  out  a  summons  for  pay- 
ment to  him.  He  asked  for  leave  to  serve  this 
summons  on  P.  out  of  the  jurisdiction  : — Held, 
that  leave  should  be  given  to  serve  the  summons 
on  P.  out  of  the  jurisdiction.  Baron  Liebig's 
Cscoa  and  Chocolate  Worht,  In  re,  59  L.  T.  315 
— North,  J. 

Discharge  of  Servants  —  Appointment  of 
Manager  and  Receiver.]— The  plaintiff  was  in 
the  service  of  the  defendant  company  under  a 
contract  which  provided  that  his  employment 
might  be  determined  by  six  months'  notice.  A 
manager  and  receiver  was  appointed  by  order  of 
the  Chancery  Division  at  the  instance  of  holders 
of  debentures  of  the  company.  The  plaintiff, 
by  the  instructions  of  the  manager,  continued 
for  more  than  six  months  to  discharge  his  former 
duties  at  the  same  salary.  The  business  was 
then  sold  to  a  new  company,  and  the  plaintiff 
was  dim  Hissed  without  notice.  In  an  action  for 
wrongful  dismissal : — Held,  that  the  appoint- 
ment of  a  manager  and  receiver  operated  to 
discharge  the  servants  of  the  company  and 
that  the  defendant  could  not  recover.  Reid  v. 
E*plo*ites  Company,  19  Q.  B.  D.  264  ;  56  L.  J., 
Q.B.388;  57  L.  T.  439;  86  W.  R.509— C.  A. 

Resolution  to  Wind-up.]  — The  passing 

of  a  resolution  to  wind-up  a  company  operates 
at  notice  of  dismissal  to  the  company's  servants. 
Cncumstances  may  exist  which  would  amount 
to  a  waiver  of  such  implied  notice,  or  which 
would  be  evidence  of  a  new  agreement  between 
the  liquidator  and  the  servant ;  but  clear  and 
satisfactory  evidence  is  necessary  to  establish 
«ch  a  case.  Schumann,  Eat  parte,  Forster  A 
ft.  In  re,  19  L.  R.,  Ir.  240— V:  C. 

Order  for  Winding-up.]— The  rule  that 

an  order  for  winding-up  a  company  operates  as 
a  notice  of  discharge  to  the  servants  when  the 


business  of  the  company  is  not  continued  after 
the  date  of  the  order,  applies  though  the 
liquidator  without  continuing  the  business  em- 
ploys the  servants  in  analogous  duties  with  a 
view  to  reconstruction.  Chapman's  case  (1  L.  R. 
Eq.  346)  followed  ;  Harding,  Ex  varte  (3  L.  R. 
Eq.  341)  distinguished.  Oriental  Bank  Corpora- 
tion, In  re,  MacDowalVs  case,  32  Ch.  D.  366  ;  55 
L.  J.,  Ch.  620 ;  54  L.  T.  667 ;  34  W.  R.  529— 
Chitty,  J. 

Arrest  of  Contributory — Seiiure  of  Goods.] — 

Upon  affidavits  by  the  official  liquidator  and  his 
solicitor,  stating  that  certain  contributories  (one 
of  whom  was  a  director  of  the  company  charged 
with  breaches  of  trust)  had  transferred  their 
shares,  were  selling  off  their  property,  and,  as 
the  deponents  were  informed  and  oelieved,  were 
immediately  about  to  quit  the  country,  for  the 
purpose  of  evading  payment  of  a  call  and  their 
responsibilities  to  the  company ;  and  that  it 
would  be  necessary  to  examine  these  persons  for 
the  elucidation  of  the  affairs  of  the  company ; 
the  court  made  an  order  for  seizure  and  arrest 
under  section  118  of  the  Companies  Act,  1862. 
Form  of  order  and  proceedings  in  such  cases. 
Ulster  Land  Co.,  In  re,  17  L.  R.,  Ir.  591— V.  C. 

Solicitor's  Lien  on  Documents.]— See  Cases, 
post,  Solicitor. 

Prosecution  of  Directors — Petition   for.] — A 

company  was  being  wound  up  subject  to  the 
supervision  of  the  court,  and  the  liquidator  pre- 
sented a  petition  for  a  direction  under  the  Com- 
panies Act,  1862,  s.  167,  that  he  might  prosecute 
a  director  at  the  expense  of  the  assets.  The 
petition  was  not  served  on  any  one.  It  appeared 
by  an  affidavit  made  by  the  liquidator  that  a 
substantial  body  of  creditors  approved  of  the 
petition.  Other  persons  claiming  to  be  creditors 
appeared  at  the  hearing  by  counsel,  who  read  an 
affidavit  showing  that  creditors  to  a  substantial 
amount  wished  to  oppose  the  petition,  and  asked 
that  it  should  stand  over.  The  facts  on  which 
the  petition  was  based  had  been  before  the  court 
judicially  upon  a  successful  application  to  make 
the  director  liable  under  the  Companies  Act,. 
1862,  8. 165,  for  breaches  of  trust :— Held,  that 
as  the  court  was  satisfied  the  opposition 
to  the  petition  came,  not  from  a  desire  to  save 
the  assets,  but  from  a  desire  to  save  the  director, 
and  also  that  if  the  petition  were  not  at  once 
acceded  to  there  would  be  a  risk  of  justice  being 
defeated,  the  prosecution  must  be  at  once 
directed,  without  further  consultation  of  the 
creditors.  Denham,  In  re,  53  L.  J.,  Ch.  1113  ; 
51  L.  T.  570  ;  32  W.  R.  920— Chitty,  J. 

Gall — Affidavit  in  Support.]— In  the  winding- 
up  of  an  unlimited  company  the  court  has  power 
to  make  a  call  under  s.  102  of  the  Companies 
Act,  1862,  on  a  proper  case  shown  by  the  official 
liquidator ;  and  the  debts  of  the  company  not 
having  been  paid,  an  affidavit  by  the  liquidator 
that  the  call  was  required  for  "  the  adjustment 
of  the  rights  and  liabilities  of  the  members 
amongst  themselves"  was  held  to  imply  that 
the  call  was  necessary  for  the  payment  of  debts, 
and  to  be  a  sufficient  compliance  with  form  33 
of  the  General  Order  of  November,  1862,  rule  33. 
Norwich  Equitable  Fire  Assurance  Company, 
In  re,  Miller's  case,  54  L.  J.,  Ch.  141 ;  51  L.  T. 
619  ;  33  W.  R.  271— V.-O.  B. 


443 


COMPANY—  Winding-up. 


444 


14.  BALANCE  ORDER.' 


Aotion  on.] — By  a  balance  order  made  in  the 
winding-up  of  a  company,  the  defendant,  who 
was  a  shareholder  and  director  of  the  company, 
was  ordered  to  pay  a  sum  of  252Z.  due  in  respect 
of  calls  to  the  official  liquidator  of  the  company. 
The  liquidator  brought  an  action  against  the 
defendant  for  the  sum  due  under  the  balance 
order  and  the  defendant  claimed  to  set  off  a  sum 
due  to  him  from  the  company  : — Held,  that  no 
action  can  be  brought  upon  a  balance  order. 
Chalk  4'  Co.  v.  Tennent,  57  L.  T.  598  ;  36  W.  R. 
263— North,  J. 


Effect  of,  on  Executor's  Right  of  Retainer.]— 
Where,  under  ss.  76  and  103  of  the  Companies 
Act,  1862,  and  rule  35  of  General  Order,  Nov. 
1862,  a  balance  order  has  been  obtained  by  the 
official  liquidator  of  a  company  against  the 
legal  personal  representative  of  a  deceased  con- 
tributory for  payment  of  a  call  made  after  the 
death,  the  order  being  in  accordance  with  Form 
39  in  Schedule  III.  to  the  General  Order,  and 
directing  the  legal  personal  representative  to 
pay  the  call  "  out  of  the  assets  of  the  deceased 
in  his  hands  as  such  legal  personal  representative 
to  be  administered  in  due  course  of  administra- 
tion," such  an  order  is  not  in  the  nature  of  a 
judgment  so  as  to  constitute  the  liquidator  a 
judgment  creditor ;  it  is  to  be  treated  simply  as 
analogous  to  a  common  administration  judg- 
ment, or  as  a  step  to  the  administration  judg- 
ment, which  may  be  obtained  by  the  liquidator 
under  s.  105  of  the  Companies  Act,  1862,  and 
which  is  his  proper  remedy  in  case  the  legal 
personal  representative  has  failed  to  comply 
with  the  order ;  and  therefore,  the  order,  whether 
followed  by  an  administration  judgment  or  not, 
leaves  untouched  all  priorities  and  rights  usually 
existing  in  the  due  course  of  the  administration 
of  the  estate  of  a  deceased  person,  including  an 
executor's  right  of  retainer.  Thus,  the  order,  if 
obtained  against  executors,  does  not  give  the 
liquidator  priority  over  a  debt  due  to  one  of 
them  from  the  testator,  and  therefore  retained 
by  that  executor  out  of  the  assets,  even  though 
the  order  be  prior  in  date  to  notice  of  the  re- 
tainer. Hubbaek,  In  re,  International  Marine 
Hydropathic  Company  v.  Haioes,  29  Ch.  D.  934 ; 

54  L.  J.,  Ch.  923  ;  52  L.  T.  908  ;  33  W.  B.  666— 
C.A. 

Bankruptcy — "  Final  Judgment."]— A  balance 
order  made  in  a  voluntary  winding-up  of  a  com- 
pany on  a  contributory,  for  the  payment  of  calls 
which  had  been  made  upon  him  before  the 
commencement  of  the  winding-up,  is  not  a  "final 
judgment "  within  the  meaning  of  sub-s.  1  (g) 
of  s.  4  of  the  Bankruptcy  Act,  1883,  and  there- 
fore a  bankruptcy  notice  cannot  be  issued  in 
respect  of  such  an  order.  Whinney,  Ex  parte, 
Sanders,  In  re,  13  Q.  B.  D.  476 ;  1  M.  B.  R.  185 
— D. 

A  "  balance  order  "  in  respect  of  calls  made 
on  a  contributory  in  the  winding-up  of  a  com- 
pany is  not  a  "final  judgment"  within  the 
meaning  of  sub-s.  1  (g)  of  s.  4  of  the  Bankruptcy 
Act,  1883,  and  a  bankruptcy  notice  cannot  be 
issued  in  respect  of  such  an  order.  Ex  parte 
Whinney  (13  Q.  B.  D.  476),  followed.  Grim- 
icade,  Ex  parte,  Tennent,  In  re,  17  Q.  B.  D.357 ; 

55  L.  J.,  Q.  B.  495 ;  3  M.  B.  R.  166— C.  A. 


Issue  of  Kotioe  in  name  of  Liquidator.] 

— A  balance  order  was  made  against  A.  to  pay 
to  the  official  liquidator  of  the  Land  Develop- 
ment Association  a  certain  sum  for  calls  due 
from  A.  to  the  company.  The  official  liquidator 
brought  an  action  as  official  liquidator  on  that 
order,  and  obtained  judgment  against  A,  and 
thereupon  issued  a  bankruptcy  notice  in  his  own 
name  as  official  liquidator  of  the  company.  A 
petition  was  presented  against  A.,  founded  on 
that  notice,  and  came  on  for  hearing  before  the 
registrar,  who  dismissed  it,  and  from  his  dis- 
missal this  appeal  was  brought : — Held  that  the 
petition  was  rightly  dismissed  by  the  registrar, 
as  it  was  irregular.  Mackay,  Ex  parte,  Shirley, 
In  re,  58  L.  T.  237— D. 


15.   CONTRIBUTORIES. 

a.  Qualification  Shares. 

Acting  as  Director  not  a  Contraot  to  tab 
full  Humber.] — By  the  articles  of  association  of 
a  limited  company  it  was  provided  that  the 
qualification  of  a  director  should  be  the  holding 
250  shares  at  least,  that  he  might  act  before 
acquiring  his  qualification,  but  that  his  office 
should  be  vacated  if  he  did  not  acquire  it  within 
three  months  after  his  election.  J.,  who  had 
subscribed  the  memorandum  of  association  for 
ten  shares,  was  elected  a  director,  accepted  the 
office,  and  attended  meetings  of  directors  for 
more  than  three  months  from  his  election,  but 
never  applied  for,  nor  had  allotted  to  him,  any 
other  shares  than  his  original  ten.  In  the 
winding-up  of  the  company : — Held,  that  the 
acceptance  of  the  office  of  director  and  the  con- 
tinuing to  act  after  the  time  by  which  the 
qualification  ought  to  have  been  acquired,  did 
not  amount  to  a  contract  by  J.  to  take  the 
additional  shares  requisite  for  his  qualification, 
and  that  he  must  be  upon  the  list  for  ten  shares 
only.  Wheal  Buller  Consols,  In  re,  Johling, 
Ex  parte,  38  Ch.  D.  42 ;  67  L.  J.,  Ch.  333 ;  58 
L.  T.  823  ;  36  W.  R.  723— C.  A. 

The  mere  acting  as  a  director  is  not  sufficient 
evidence  of  a  contract  to  take  the  shares  required 
for  qualification.  An  actual  contract  must  be 
proved.  Medical  Attendance  Association,  1% 
re,  Onslow's  case,  56  L.  T.  612 — North,  J. 
Affirmed  58  L.  T.  824,  n.— C.  A. 

Contraot  to  Purchase — Directors  entitled  to 
Seasonable  Time. J*- A  company  was  registered 
in  June,  1879.  B.  and  H.  signed  the  memoran- 
dum of  association  as  subscribers  for  one  share 
each.  By  the  articles  B.  and  H.  were  named  as 
original  directors,  and  it  was  provided  that  the 
qualification  of  a  director  should  be  fifty  shares. 
B.  and  H.  attended  meetings  of  the  directors, 
but  no  shares  were  allotted  to  them,  nor  did 
their  names  appear  on  the  register  for  any  shares 
except  those  for  which  they  had  signed  the 
memorandum.  In  September  B.  resigned  his 
office,  but  H.  continued  a  director.  No  business 
was  ever  done  by  the  company,  and  in  November 
a  resolution  was  passed  to  wind  up  the  company. 
The  liquidator  placed  B.  and  H.  on  the  list  of  con- 
tributories  for  fifty  shares  each : — Held,  that 
assuming  that  the  contract  entered  into  by  B. 
and  H.  to  obtain  a  qualification  amounted  to  an 
agreement  to  take  fifty  shares  within  the  23rd 
section  of  the  Companies  Act,  1862,  they  were 


445 


COMPANY— Winding-up. 


446 


entitled  to  a  reasonable  time  for  performing  the 
agreement,  and  that  under  the  circumstances 
roch  reasonable  time  had  not  elapsed  at  the 
commencement  of  the  winding-up  of  the  com- 
pany. Consequently  they  could  not  be  held 
liable  as  contributories  in  respect  of  the  fifty 
share?.  Whether  the  contract  amounted  to  an 
agreement  to  take  the  fifty  shares  within  the 
23rd  section,  quaere.  Colombia  Chemical  Fac- 
tory Manure  and  Phosphate  Works,  In  re, 
Hewitt'*  and  Brett's  case,  25  Ch.  D.  283  ;  63  L. 
J-  Ch.  343  ;  49  L.  T.  479 ;  32  W.  B.  234— C.  A. 

Original  Director— Withdrawal  before  Quali- 
fication.]— The  articles  of  association  of  the  S. 
Company  provided  that  the  first  directors  should, 
within  two  months  of  the  date  of  their  appoint- 
ment, become  the  registered  proprietors  of  250 
shares  of  1/.  each,  and  that  the  first  directors  of 
the  company  should  be  appointed  by  a  meeting 
of  subscribers  to  the  memorandum  of  association 
forthwith  after  registration.  The  company  was 
incorporated  on  the  11th  January,  1884.  A 
meeting  of  the  subscribers  to  the  memorandum 
was  held  on  the  12th,  and  B.  B.  T.,  who  was  not 
a  subscriber,  was  elected  to  be  one  of  the  first 
directors.  On  the  14  th  January,  1 884,  a  meeting 
■was  held  of  the  directors  of  the  company,  which 
B.  B.  T.  attended.  A  draft  prospectus  was  then 
settled  and  signed  by  the  directors  present,  in- 
cluding IL  B.  T.,  which  gave  the  name  of  B.  B.  T. 
as  a  director.  He  alleged  that  he  did  not  know 
the  company  was  formed  before  the  meeting  of 
the  12th,  but  thought  it  was  a  preliminary  meet- 
ing. He  never  attended  another  meeting,  or  in 
any  way  acted  as  director,  or  applied  for  or  was 
allotted  any  shares.  The  company  was  ordered 
to  be  wound  up  on  the  8th  August,  1885.  The 
liquidator  claimed  to  put  B.  B.  T.  on  the  list  of 
contributories  for  250  shares,  the  qualification 
required  for  a  director  -.—Held,  that,  if  B.  B.  T. 
had  ever  acted  as  a  director,  he  had  withdrawn 
during  the  two  months  allowed  for  qualifying, 
and  he  could  not  be  put  on  the  list  of  contribu- 
tories. Self-Acting  Sewing  Machine  Company, 
In  re,  54  L.  T.  676  ;  34  W.  B.  758— Pearson,  J. 

Gift  of— Liability  to  Account.]— A  director  of 
a  company  received  from  the  promoters  a  present 
of  the  sum  of  1,0002.  to  bay  100  shares  in  the 
company,  which  was  the  qualification  of  a  di- 
rector, the  present  being  expressed  to  be  given 
as  part  commission,  in  respect  of  certain  con- 
tracts he  was  about  to  enter  into  at  the  request 
of  the  promoters,  in  relation  to  the  proposed 
company.  The  director  afterwards  took  part  in 
making  an  agreement  for  the  purchase  by  the 
company  of  a  quarry  of  which  the  promoters 
were  part  owners,  the  carrying  out  of  which  was 
ttatea  in  the  memorandum  and  articles  of  asso- 
ciation of  the  company  to  be  the  first  object  of 
the  company.  The  company  was  subsequently 
wound  up  : — Held,  that  the  director  was  liable 
to  account  to  the  liquidator  for  the  value  s>l  the 
•hares,  at  the  value  at  which  they  stood  at  the 
date  he  received  the  present,  together  with  inte- 
rest at  5  per  cent,  from  the  date  of  such  gift. 
Drum  Slate  Quarry  Company,  In  re,  McLean's 
«*,  55  L.  J^  Ch.  36 ;  53  L.  T.  250— Kay,  J. 

Joint  and  Several  Liability.]— The  first 

t?e  directors  of  a  company,  being  bound  by  the 
ankles  of  association  to  hold  twenty  shares  each 
at  a  qualification,  accepted,  with  the  knowledge 


and  approval  of  each  other,  twenty  fully  paid 
shares  each  from  the  promoter,  who  had  received 
them  as  cash  from  the  company: — Held,  upon 
summons  by  the  official  liquidator  in  the  wind- 
ing-up, that  all  the  directors  were  jointly  and 
severally  liable  to  pay  the  full  value  of  the 
shares.  Carriage  Co- Operative  Supply  Associa- 
tion, In  re,  27  Ch.  D.  323  ;  53  L.  J.,  Ch.  1154  ; 
51  L.  T.  286  ;  33  W.  B.  411— Pearson,  J. 

Set-off!  1 — One  only  of  the  five  directors, 

upon  finding  that  he  was  not  justified  in  receiv- 
ing the  shares  without  payment,  offered  to  pay 
the  full  sum  due  from  him,  and  gave  a  cheque 
for  the  amount,  which,  however,  was  accepted 
as  an  advance  to  the  company,  and  was  added 
to  previous  advances  made  by  him  for  prelimi- 
nary expenses  : — Held,  that  this  director  was 
not  at  liberty  to  set-off  the  value  of  his  shares 
against  the  amount  paid  in  respect  of  advances, 
though  he  would  have  a  claim  against  the  com- 
pany for  those  advances.    lb. 


b.  Fully  Paid  Shares. 

Contract  filed  "  at  or  before"  Issue.]— A  con- 
tract for  the  issue  of  shares  as  fully  paid  up  was 
given  to  the  allottee  late  in  the  day  for  the 
purpose  of  his  getting  it  filed  with  the  Registrar 
of  Joint  Stock  Companies,  together  with  a  certi- 
ficate of  the  shares.  The  contract  was  filed  on 
the  following  morning: — Held,  that  the  con- 
tract was  filed  "  at  the  time  of  "  the  issue  of  the 
shares,  and  they  were  to  be  deemed  fully  paid 
up.  Tunnel  Mining  Company,  In  re,  PooVs 
Case,  or  Pool  v.  Tunnel  Mining  Company,  35 
Ch.  D.  579  ;  56  L.  J.,  Ch.  1049 ;  36  L.  T.  822  ; 
35  W.  B.  565— North,  J. 

Begistering  Number  of  Shares.] — A  contract 
to  issue  fully  paid-up  shares  for  a  consideration 
other  than  money,  registered  under  the  Com- 
panies' Act,  1867,  s.  25,  need  not  specify  the 
numbers  of  the  shares.  Delta  Syndicate,  In  re, 
Forde,  Ex  parte,  30  Ch.  D.  153 ;  54  L.  J.,  Ch. 
724  ;  53  L.  T.  659  ;  33  W.  B.  839— Pearson,  J. 

Refusal  of  Registrar  to  file  Contract— Remedy 
for.] — An  application  was  made  for  a  mandamus 
to  compel  the  Registrar  of  Joint  Stock  Com- 
panies to  file,  under  s.  25  of  the  Companies  Act, 
1867,  a  contract  which  he  had  refused  to  file  on 
the  ground  that  it  was  insufficiently  stamped  : — 
Held,  that  .the  proper  mode  of  questioning  the 
legality  of  the  Registrar's  refusal  was  by  obtain- 
ing the  opinion  of  the  Commissioners  of  Inland 
Revenue,  and  appealing  from  their  decision  to' 
the  High  Court,  under  ss.  18, 19,  and  20  of  the 
Stamp  Act,  1870,  and  therefore,  as  there  was 
another  appropriate  remedy,  a  mandamus  must 
be  refused.  Meg.  v.  Registrar  of  Joint  Stock 
Companies,  21  Q.  B.  D.  131  ;  57  L.  J.,  Q.  B.  433  ; 
59  L.  T.  67  ;  36  W.  B.  696  ;  62  J.  P.  710— D. 

Leave  to  Register  Contract  after  Lapse  of 
Time — Evidenoe  to  sustain  Application.]  —  At 

the  date  of  the  formation  of  a  limited  company, 
an  agreement  was  entered  into  between  the  com- 
pany and  certain  persons  from  whom  the  com- 
pany purchased  the  premises  and  stock  of  the 
business  which  the  company  was  formed  to  carry 
on,  whereby  it  was,  inter  alia,  agreed  that  the 
vendors  should  take  3,000  fully  paid-up  shares 


447 


COMPANY—  Winding-up. 


448 


in  part  discharge  of  the  purchase-money.  This 
agreement  was  not  filed  by  the  Registrar  of 
Joint  Stock  Companies.  More  than  six  years 
afterwards  the  vendors  applied  to  the  company 
to  file  the  agreement,  and  issue  new  shares  of 
the  like  amount.  The  company  declined  to  do 
so,  unless  under  an  order  of  the  court  to  that 
effect.  The  court  refused  to  make  such  an  order, 
without  being  satisfied  that  creditors  of  the  com- 
pany would  not  be  pre j  udicially  affected.  Dublin 
and  WicJUow  Manure  Company,  In  re,  O'Brien, 
Ex  parte,  13  L.  R.,  Ir.  198— V.-C. 

Agreement  to  apply  Debt  in  payment  of  future 
Calls.] — K.,  being  a  shareholder  in  a  company 
whose  directors  were  empowered  to  receive  from 
shareholders  payments  in  advance  of  future  calls, 
purchased  a  debt  due  from  the  company  and  re- 
quested the  directors  to  apply  a  sufficient  part 
of  the  debt  in  paying  up  his  shares  in  full.  The 
directors  passed  a  resolution  that  the  debt  should 
be  so  applied.  Nothing  further  was  done  to 
carry  the  transaction  into  effect,  there  was  no 
entry  in  reference  to  it  in  the  books  of  the  com- 
pany other  than  the  minute  of  the  resolution, 
nor  was  any  contract  registered  as  to  the  shares 
within  s.  25  of  the  Companies  Act,  1867.  In  the 
subsequent  winding-up  of  the  company : — Held, 
that  the  transaction  between  E.  and  the  directors 
not  having  been  carried  into  effect  by  any  entry 
in  the  books  of  the  company  showing  that  the 
shares  had  been  paid  up,  or  by  any  other  step 
beyond  the  resolution,  was  not  equivalent  to  pay- 
ment in  cash  within  the  last-mentioned  section, 
and  that  K.  was  therefore  liable  for  calls  made  in 
the  winding-up  in  respect  of  the  shares.  Ferraris 
Case  (9  L.  R.  Ch.  355)  distinguished.  Land 
Development  Association,  In  re,  Kent's  Case, 
39  Ch.  D.  259  ;  57  L.  J.,  Ch.  977  ;  59  L.  T.  449  -t 
36  W.  R.  818 ;  1  Meg.  69— C.  A. 

Stated  Aocount.] — A  mere  agreement  with  a 
shareholder  to  set  off  the  amount  of  any  calls 
which  might  at  any  time  be  made,  against  debts 
owing  to  him  by  the  company,  will  not  relieve 
the  shareholder  from  being  put  on  the  list  of 
contributories  in  respect  of  calls  made  before  the 
winding-up  ;  but  if  it  can  be  shown  that  before 
the  winding-up  accounts  have  been  stated  be- 
tween the  parties  in  which  calls  made  have  been 
treated  as  paid  by  their  having  been  set  off 
against  the  company's  debt  to  the  shareholder, 
8.  25  of  the  Companies  Act,  1867,  has  no  appli- 
cation, because  such  stated  accounts  would  sup- 
port a  plea,  not  of  accord  and  satisfaction,  but 
of  payment.  Branksea  Island  Company,  In  re, 
BentincJt,  Ex  parte,  1  Meg.  12 — C.  A. 

No  Rescission  possible  after  Order  to  Wind 
up.] — A  limited  company  issued  part  of  its 
capital  in  10/.  preference  shares  at  par,  every 
present  shareholder  to  be  entitled  to  one  pre- 
ference share  at  25  per  cent,  discount  for  each 
ordinary  share  held  by  him.  Some  of  the  share- 
holders took  these  preference  shares,  paid  the 
71, 10*.  per  share,  and  had  certificates  given  them 
stating  them  to  be  holders  of  shares  fully  paid 
up.  No  contract  was  registered  under  s.  25  of 
the  Companies  Act,  1867.  The  company  having 
been  ordered  to  be  wound  up,  the  preference 
shareholders  who  had  taken  their  shares  at  a 
discount  were  placed  on  the  list  of  contributories, 
and  calls  for  the  unpaid  21.  10*.  per  share  were 
made  on  them  and  paid.    Some  of  them  then 


applied  for  leave  to  prove  in  the  winding-up  "in 
damages  for  breach  of  contract  or  otherwise  in 
respect  of  the  issue  of  the  preference  shares "  :— 
Held,  by  Eay,  J.,  that  if  there  were  any  claim 
for  damages  the  case  fell  within  s.  38,  sub-a.  7, 
of  the  Companies  Act,  1862,  but  that  the  appli- 
cants could  not  have  maintained  an  action  for 
damages  against  the  company  if  it  had  not  been 
wound  up,  and  could  not  prove  for  damages  in 
the  winding-up,  either  against  other  creditors  or 
shareholders  or  the  company  : — Held,  on  appeal, 
that  if  the  contract  between  the  company  and 
the  shareholders  was  to  be  treated  as  a  contract 
to  issue  fully  paid-up  shares,  the  shareholders 
might,  on  finding  out  that  the  shares  were  not  in 
point  of  law  fully  paid-up,  have  rescinded  the 
contract  to  take  them,  but  as  after  an  order  to 
wind  up  there  could  be  no  rescission,  the  share- 
holders had  no  remedy,  it  being  settled  by 
Houldsworth  v.  City  of  Glasgow  Bank  (5  App. 
Cas.  317)  that  a  shareholder  retaining  his  shares 
cannot  bring  an  action  against  the  company  for 
misrepresentations  by  which  he  was  induced  to 
take  them,  and  the  Court  being  of  opinion  that 
no  substantial  distinction  could  be  drawn  for 
this  purpose  between  misrepresentation  and  a 
breach  of  a  contract  that  the  shares  should  be 
fully  paid-up  shares.  Mudford's  Claim  (14  Ch. 
D.  634)  and  Ex  parte  Appleyard  (18  Ch.  D. 
587)  questioned.  Addlestone  Linoleum  Com- 
pany, In  re,  Benson's  Case,  37  Ch.  D.  191 ;  57 
L.  J.,  Ch.  249 ;  58  L.  T.  428 :  36  W.  B,  227- 
C.A. 


Contract  to  Issue  Shares  at  a  Discount]— 
Semble,  that,  if  the  contract  was  to  issue  shares 
at  a  discount,  the  allottees  took  the  shares  sub- 
ject to  a  liability  to  pay  their  nominal  amount 
in  full,  and  could  not  be  exonerated  from  this 
liability  even  by  a  registered  contract.  Jnee 
Hall  Moiling-  Mills  Company,  In  re  (23  Ch.  D. 
545,  n.),  and  Plashynaston  Tube  Company,  I*  rt 
(23  Ch.  D.  542),  disapproved.    lb. 

Non-registration  of  Contraots — Constructive 
Notioe.]— In  October,  1881,  a  company  was 
formed,  as  stated  in  the  memorandum  of  associ- 
ation, with  the  object  of  purchasing  the  business 
of  A.  W.  H.  &  Co.,  for,  inter  alia,  a  sum  to  be 
paid  in  fully  paid-up  shares.  N.,  who  was 
A.  W.  H.'s  solicitor,  prepared  the  memorandum 
and  articles  of  association,  and  to  some  extent 
acted  as  the  solicitor  of  the  company.  The 
shares  were  duly  allotted,  and  certificates  for 
them  were  issued  to  A.  W.  H.,  which  stated  that 
the  full  amount  had  been  paid  up  thereon ;  but 
the  contract  under  which  the  shares  were  issued 
was  not  registered.  In  January,  1882,  upon  the 
marriage  of  a  Miss  H.,  A.  W.  H.,  who  was 
indebted  to  her,  gave  a  bond  to  the  trustees  of 
her  marriage  settlement,  of  whom  N.  was  one, 
to  secure  the  debt,  which  bond  formed  part  of 
the  settled  property ;  and  A.  W.  H.  also,  as  a 
collateral  security,  deposited  with  the  trustees 
the  certificates  for  some  of  his  paid-up  shares, 
N.  prepared  the  bond  and  the  memorandum  of 
deposit  In  1885  the  deposited  shares  were 
transferred  to  the  trustees,  and  fresh  certificates 
were  issued  to  them,  which  also  bore  the  state- 
ment that  such  shares  were  fully  paid  up.  The 
company  was  afterwards  ordered  to  be  wound 
up,  and  the  liquidator  applied  to  enforce  against 
the  trustees  a  call  upon  the  shares  standing  in 
their  names.    According  to  the  evidence  N.  did 


449 


COMPANY— Winding-up. 


456 


not  know  that  the  particular  shares  deposited 
with  the  trustees  were  vendor's  shares,  and  the 
other  trustees  relied  on  a  statement  made  by  him 
to  them  that  such  shares  were  f  ally  paid  np : — 
Held,  first,  following  Burhinshaw  v.  NicolU 
(3  App.  Gas.  1004),  that  as  the  certificates  of  the 
■hares  in  question  contained  a  statement  by  the 
company  that  such  shares  were  fully  paid  np, 
the  onus  of  proving  that  the  trustees  nad  notice 
that  they  were  not  fully  paid  lay  on  the 
liquidator ;  and  secondly,  that  N.  had  not  been 
guilty  of  gross  or  culpable  negligence  in  omitting 
to  inquire  whether  the  shares  in  question  were 
not  vendor's  shares,  or  whether  the  contract  had 
been  duly  registered,  and  consequently  that  the 
trustees  were  not  liable  for  the  call.  Hall  $ 
Csn  In  re,  37  Ch.  D.  712 ;  57  L.  J.,  Ch.  288  ;  68 
L.  T.  156-Stirling,  J. 

—  Estoppel — Hotic*-— Breach  of  Contract  to 
ngiitar.  J — By  an  agreement  in  writing  between 
an  English  company  and  a  French  company, 
the  English  company  agreed,  in  consideration 
of  services  to  be  rendered  by  the  French  com- 
pany, to  issue  and  allot  to  the  French  company, 
or  its  nominees,  1000  fully  paid-up  shares,  and 
to  procure  the  agreement  to  be  filed  with  the 
Rgstrar  of  Joint  Stock  Companies  before  the 
iaoe  of  the  shares.    This  agreement  was  never 
registered,  as  required  by  s.  25  of  the  Companies 
Act,  1867.    200  of  these  shares  were  issued  and 
allotted  to  a  nominee  of  the  French  company, 
with  certificates,  stating  that  the  shares  were 
felly  paid,  and  were  subsequently  transferred 
by  him  for  value  to  H.,  who  transferred  100  to 
B>,  and  retained   100.    H.  and  B.  were  acting 
directors  of  the  English  company  from  its  com- 
mencement until  its  winding-up  in  1884.    Upon 
an  application  by  H.  and  B.  in  the  winding-up 
to  be  relieved  from  liability  on  their  shares  :— 
Held,  that  the  applicants  were  not  entitled  to 
relief  by  reason  of  the  representation  on  the 
certificates  that  the  shares  were  fully  paid,  in- 
asmuch as  all  the  parties  must  be  taken  to  have 
blown  the  circumstances  under  which  the  shares 
were  issued ;  nor  by  reason  of  the  omission  of 
the  company  to  register,  because  their  liability 
in  respect  of  their  shares  did  not  arise  from  the 
default  of  the  company,  but  from  the  terms  of 
the  statute ;    and  that  the  application  failed. 
BurHmhaw  v.  Nieholls  (3  App.  Cas.  1004),  dis- 
cussed.     London    Celluloid   Company,  In   re, 
Baylty  and  Banbury,  Ex  parte,  39   Ch.   D. 
1» ;  57  L.  J.,  Ch.  843  ;  59  L.  T.  109 ;  36  W.  R. 
«3 ;  1  Meg.  45— C.  A. 

Oomtraet  to  Register— Hon-Regiatration 

— ■•  Assent  to  becoming  Shareholder.] — Where 
a  company  enters  into  a  contract  to  issue  shares 
tot  person  as  fully  paid  up  for  a  consideration 
other  than  a  payment  in  cash,  if  the  company 
*»fl  to  register  the  contract  under  s.  25  of  the 
Companies  Act.  1867,  such  person  is  not  liable 
lor  the  amount  of  the  shares  as  a  member  of  the 
company,  either  as  between  the  company  and 
■iwelf,  or  subsequently  when  the  company  has 
been  ordered  to  be  wound  up,  unless  such  person 
baa,  by  something  besides  entering  into  the  con- 
tact, assented  to  his  name  being  registered  as  a 
Aaieholder.  BlytKs  east  (4  Ch.  D.  140),  dis- 
tinguished. Barangah  Oil  Refining  Company, 
hre,  Amofs  ea$e,  36  Ch.  D.  702  ;  67  L.  J.,  Ch. 
1* ;  57  L.  T.  363— C.  A. 


c.  Subscribers  to  Memorandum. 


Subsequent  Application  for  Additional 
8hares.] — On  the  formation  of  a  limited  com- 
pany, G.,  a  director,  subscribed  the  memoran- 
dum of  association  for  fifty  shares  as  his  qualifi- 
cation. Shortly  afterwards  he  expressed  his 
intention  of  taking  fifty  more  shares,  and  there- 
upon, in  order  to  satisfy  the  requirements  of  the 
Stock  Exchange  prior  to  settlement  and  quota- 
tion, signed  a  formal  letter  of  application  for 
100  shares,  it  being,  as  alleged,  intended  by  him 
and  also  understood  by  his  co-directors  that 
these  100  shares  included  the  fifty  for  which  he 
had  subscribed  the  memorandum.  100  shares 
were  then  duly  allotted  to  him ;  they  were 
registered  in  his  name,  and  he  fully  paid  them 
up.  The  company  having  afterwards  been 
ordered  to  be  wound  up,  an  application  by  the 
liquidator  under  s.  23  of  the  Companies  Act, 
1862,  to  fix  G.  as  a  contributory  in  respect  of  the 
fifty  shares  for  which  he  had  subscribed  the 
memorandum,  was  dismissed  with  costs.  Groove's 
Mining  and  Smelting  Company,  In  re,  Oilman's 
ease,  31  Ch.  D.  420  ;  55  L.  J.,  Ch.  509  ;  54  L.  T. 
206  ;  34  W.  R.  362— V.-C.  B. 

Lapse  of  Time — Estoppel.] — W.  signed  the 
memorandum  of  association  of  a  company  for 
100  shares,  and  was  one  of  its  first  directors.  He 
attended  the  first  meeting,  when  it  was  stated 
that  there  was  a  sum  of  money  which  the  direc- 
tors proposed  to  divide  amongst  themselves.  He 
disapproved  of  this  transaction,  and  expressed 
his  desire  to  withdraw  from  the  company.  He 
never  attended  any  subsequent  meeting.  The 
company  had  no  power  to  accept  surrenders  of 
shares.  Shortly  afterwards  the  secretary  in- 
formed W.  that  his  shares  had  been  taken  up  by 
a  person  named  M.,  and  that  a  new  director 
would  be  elected  in  his  stead.  He  applied  for 
an  indemnity,  but  was  informed  that  none  was 
necessary.  In  1879  the  company  went  into 
voluntary  liquidation,  which  was  continued 
under  the  supervision  of  the  court.  Two  of 
the  directors  were  appointed  liquidators,  but 
for  four  years  they  took  no  steps  in  the  wind- 
ing up.  They  were  then  removed  by  the  court, 
and  a  new  liquidator  was  appointed,  who  placed 
W.'s  name  on  the  list  of  con  tributaries.  W. 
sought  to  have  his  name  removed  from  such 
list.  The  question  was  whether,  after  the  lapse 
of  time  which  had  occurred,  and  after  the  trans- 
action which  had  taken  place  between  W.  and 
the  company,  the  company  was  not  estopped 
from  relying  on  any  irregularity  in  reference  to 
the  issue  of  W.'s  shares  to  M. : — Held,  that  W.r 
having  signed  the  memorandum  of  association 
for  the  shares,  could  not  get  rid  of  his  liability, 
except  by  means  of  a  regular  transfer;  that 
there  was  nothing  to  identify  the  shares  allotted 
to  M.  with  those  for  which  W.  signed  the  memo- 
randum, and  there  was  no  evidence  of  any  com- 
munication between  the  applicant  and  M. ;  that 
the  irregular  proceeding  which  had  taken  place 
did  not  free  W.  from  liability ;  and  that,  not- 
withstanding the  lapse  of  time,  he  was  rightly 
placed  on  the  list  of  contribntories.  Argyle 
Coal  and  Cannell  Company,  In  re,  Watson,  Eat 
parte,  64  L.  T.  233— Kay,  J. 

a  Signature  by  Agent — Authority  of  Agent  to 
Sign.] — C.  verbally  authorized  O.  to  sign  on  his 
behalf  the  memorandum  of  association  of  a  com- 

Q 


451 


COMPANY—  Winding-up. 


453 


pany.  0.  accordingly  signed  the  name  of  C.  to  the 
memorandum  without  nis  own  name  appearing. 
The  company  being  in  coarse  of  winding  up,  C. 
was  pat  on  the  list,  and  applied  to  have  his 
name  removed,  on  the  ground  that  he  had  never 
signed  the  memorandum  nor  agreed  to  take 
shares : — Held,  that  there  being  nothing  in  the 
Companies  Act,  1862,  to  show  that  the  Legislature 
intended  anything  special  as  to  the  mode  of 
signature  of  the  memorandum,  the  ordinary  rule 
applied  that  signature  by  an  agent  is  sufficient ; 
that  although  by  8. 11  of  the  act  a  subscriber  is 
bound  in  the  same  way  as  if  he  had  signed  and 
sealed  the  memorandum,  still  the  memorandum 
is  not  a  deed,  and  it  is  not  necessary  that  the 
authority  to  sign  it  should  be  given  by  deed; 
that  though  it  was  irregular  for  0.  to  sign  C.'s 
name  without  denoting  that  it  was  signed  by  0. 
as  his  attorney,  the  signature  was  not  on  that 
ground  invalid ;  and  therefore  that  C.  was  not 
entitled  to  have  his  name  removed  from  the  list. 
Whitley  #  Co.,  In  re,  Gallon,  Em  parte,  32  Ch. 
D.  337  ;  55  L.  J.,  Ch.  540  ;  54  L.  T.  912  ;  34 
W.  B.  605— C.  A. 


<L  Allottees  and  Applicants, 

Conditional  Application  —  Condition  Subse- 
quent—Allotment— Hon-oomplianee  with  Con- 
dition—Heriest  to  rescind  by  Allottee  Sale 
and  Transfer  by  Allottee.]— A  new  company 
was  constituted  to  take  over  the  assets  and 
liabilities  of  an  old  company  in  liquidation, 
under  a  scheme  by  which  each  shareholder  in 
the  old  company  was  entitled  to  a  share  in  the 
new  company  in  respect  of  every  share  held  by 
him  in  the  old  company,  but  no  sum  was  to  be 
deemed  paid  up  on  any  share,  11.  per  share  was 
to  be  paid  up  within  a  month,  and  no  share  was 
to  be  transferred  until  all  calls  thereon  had  been 

n*  1.  R.  F.,  a  shareholder  in  the  old  company, 
declined  to  come  in  under  the  scheme,  but 
was  willing  to  pay  700/.  on  being  relieved  within 
two  years  of  all  liability  in  respect  of  the  old 
company.  Before  any  payment  had  been  made 
by  R.  F.,  one  Fisher,  a  shareholder  in  the  old 
company,  applied  for  700  shares  in  the  new  com- 
pany "on  condition  that  I  am  credited  with  11. 
per  share  paid  into  a  fund  by  B.  F."  By  a  reso- 
lution of  the  directors  of  the  new  company 
passed  in  the  presence  of  Fisher,  certain  ordinary 
shares  were  allotted  to  him,  and  700  ordinary 
shares  were  also  allotted  to  him  "  conditional," 
that  word  being  placed  opposite  to  them  in  a 
list  of  allotments  appended  to  the  resolution. 
Letters  of  allotment  and  certificates  in  respect 
of  the  first-mentioned  ordinary  shares  were  sent 
to  Fisher,  but  none  were  sent  to  him  in  respect 
of  the  700  shares,  and  his  name  was,  but  without 
his  knowledge,  entered  on  the  register  of  share- 
holders in  respect  of  the  700  shares  as  well  as 
the  others,  but  with  the  word  "conditional" 
written  opposite  the  700  shares.  Fisher  after- 
wards sola  and  transferred  400  of  the  700  shares 
to  Sherrington,  and  the  company  registered  the 
transfer  and  issued  certificates  to  Sherrington 
for  400  shares,  crediting  him  with  11.  as  paid  up 
thereon  and  placing  him  on  the  register  as  the 
holder  of  400  shares.  B.  F.  was  not  relieved 
from  his  liability  within  the  two  years,  and  did 
not  pay  the  7001. ;  and  the  new  company  went 
into  liquidation  without  any  steps  having  been 
taken  by  Fisher  to  enforce  the  condition  of  his 


application  or  to  rescind  it : — Held,  in  Fisher's 
case,  that  the  condition  attached  to  Mb  applica- 
tion was  a  condition  subsequent,  which  owing 
to  the  liquidation  of  the  company,  could  not 
now  be  enforced ;  that  under  the  circumstances 
Fisher  must  be  deemed  to  be  a  member  of  the 
company  within  the  meaning  of  s.  23  of  the 
Companies  Act,  1862,  and  must  be  placed  upon 
the  list  of  contributories  in  respect  of  300  shares. 
And  held,  in  Sherrington's  case,  that  he  most  be 
placed  upon  the  list  of  contributories  in  respect 
of  400  shares.  Southport  and  West  Lancashire 
Banking  Company,  In  re,  Figkcr't  ease,  Sher- 
rinatonfs  cote,  31  Ch.  D.  120 ;  55  L.  J.,  Ch.  497; 
53  L.  T.  832  ;  34  W.  B.  49,  336— C.  A 

Application  for  Shares  Absolute  or  Condi- 
tional.] —  M.  having  applied  for  the  post  of 
district  manager  to  the  r.  company,  the  secre- 
tary on  the  15th  of  April  sent  to  him  a  synopsis 
of  terms,  which  required  candidates  to  take  shares 
in  the  company.  On  the  21st  of  April,  1887,  the 
secretary  wrote  to  M.  that  he  had  been  selected 
for  the  post,  and  enclosed  a  share  application, 
which  was  in  form  unconditional.  On  the  27th 
of  April  M.  returned  the  application  signed, 
together  with  a  cheque  for  the  price  of  the 
shares,  and  he  duly  received  notice  of  allotment 
of  the  shares,  but  he  never  received  any  share 
certificates.  On  the  29th  of  April  M.  read  some- 
thing in  a  newspaper  which  made  him  unwilling 
to  become  a  shareholder,  and  stopped  his  cheque. 
On  the  30th  of  April  he  received  from  the  secre- 
tary for  signature  a  document  called  the  official 
appointment,  containing  onerous  conditions 
which  did  not  appear  in  the  synopsis.  He  de- 
clined to  sign  the  official  appointment,  and  on 
the  3rd  of  May  he  repudiated  all  connexion 
with  the  company.  On  the  28th  of  May  the 
company  went  into  voluntary  liquidation.  The 
liquidator  sought  to.  make  M.  liable  as  a  con- 
tributory : — Held,  that  the  application  for  shares 
was  conditional  upon  the  appointment  being 
obtained ;  that  the  negotiations  between  M. 
and  the  secretary  were  binding  on  the  com- 
pany ;  that  M.  was  entitled  to  reject  the 
appointment ;  and  that  his  name  ought  to  be 
struck  off  the  list  of  contributories.  London 
and  Provincial  Provident  Association,  In  re, 
Mog ridge's  case,  57  L.  J.,  Ch.  932  ;  58  L.  T.  801 
— Stirling,  J. 

Delay  in  giving  ITotice  of  Allotment— 1*» 
pudiation  of  Shares  after  Winding-up.]— In 
July,  1882,  B.,  who  was  residing  in  the  Cape 
Colony,  at  the  solicitation  of  the  local  agent  of 
a  company,  signed  an  application  for  shares  in 
the  company.  The  company  was  not  registered 
until  December,  1883,  when  shares  were  allotted 
to  B.,  and  a  notice  of  allotment  sent  to  him 
which  he  received  in  February,  1884.  B.  then 
called  upon  the  local  agent  and  verbally  re- 
pudiated the  shares  ;  but  the  local  agent  stated 
he  was  not  then  instructed  in  the  matter.  & 
then  proceeded  to  this  country,  and  arrived  here 
on  the  29th  of  May,  1884.  On  the  6th  of  June, 
1884,  he  took  proceedings  to  have  his  name 
removed  from  the  register  of  shareholders.  On 
the  23rd  of  May,  1884,  a  petition  for  the 
winding-up  of  the  company  was  presented,  and 
a  winding-up  order  was  subsequently  made 
thereon :— Held,  that  as  B.  had  not  repudiated 
the  shares  in  any  effective  way  until  after  the 
winding-up  of  the  company  commenced,  he 


4M 


COMPANY—  Winding-up. 


454 


liable  as  a  contributory   in   the   winding-up. 
Land  Loan  Mortgage  and  General  Trust  Com- 

riy  of  South  Africa,  In  re,  Boyle's  case,  54 
J.,  Ch.  550 ;  52  L.  T.  601 ;  33  W.  R.  450— 
Ksy.J. 

See  alto  ante,  col.  381. 

e.  Tremafbrees)  and  Nominees. 

Fsadimg    Proeeedimgs  —  Commenooment    of 
▼iiiing-up — B  lift.] — The  articles  of  a  corn- 
pay  enabled  the  board  of  directors  to  appoint 
committees  of  their  own  number,  and  to  delegate 
to  any  such  committee  all  or  any  of  the  powers 
of  the  board.    Transfers  ,of  shares  were  to  be 
effected  only  by  instruments  executed  both  by 
the  transferor  and  transferee,  and  were  not  to  be 
node  without  the  approval  of  the  board,  which 
bad  an  absolute  discretion  as  to  accepting  a 
tnnsfer.    On  the  2nd  of  November,  1874,  the 
bond  appointed  H.  B.  a  committee  with  all  the 
powers  of  the  board.    On  the  24th  of  December, 
1874,  a  board  meeting  was  held,  at  which  only 
H.  B.  and  the  secretary  were  present.    At  this 
meeting  transfers,  which  had  on  the  previous 
day  been  executed  by  X.  and  T.  to  various  per- 
sons of  1,519  shares  standing  in  the  joint  names 
of  X.  and  Y.,  were  approved,  and  the  trans- 
ferees placed  on  the  register.    H.  B.  deposed 
that  all  formalities  had  been  waived,  and  there 
vis  no  evidence  whether  the  transfers  had  been 
executed  by  the  transferees.    On  the  same  day 
ft  general  meeting  of  shareholders  was  held,  at 
vnich  resolutions  were  passed  for  a  voluntary 
winding-up  of  the  company,  and  the  transfer  of 
its  business  to  a  new  company,  each  shareholder 
is  the  old  company  taking  the  same  number  of 
shares  in  the  new,  and  this  was  confirmed  by  a 
nesting  of   the    15th  of  January,  1875.     At 
neither  of  these  meetings  did  the  transferors 
^ote  in  respect  of  the  shares  transferred,  but 
several  of  the  transferees  did,  and  the  trans- 
ferees were  registered  as  shareholders  in  the  new 
company.    It  did  not  appear  that  the  old  com- 
pany was   insolvent,   bat   it   was  considered 
desirable  to  reconstitute  it.     In  March,  1877, 
a  petition  was  presented  by  some  of  the  trans- 
ferees tor  the  compulsory  winding-up  of  the  old 
company,  upon  which  an  order  was  made  on  the 
17th  of  the  same  month.    The  transferees  were 
placed  on  the  list  of  contributories.     In  1881 
sone  creditors,  pursuant  to  leave  given,  applied 
in  the  name  of  the  official  liquidator  to  put  X. 
sad  T.  on  a  supplemental  list  of  contributories 
of  the  old  company  for  the  1,519  shares,  and  if 
not,  then  on  a  B  list  as  past  members.    The 
apptieatioci    was   refused   by    Bacon,  V.-C. : — 
Held,  that  the  fact  that  the  transferors  knew 
that  the  company  was  on  the  eve  of  being 
KKmd  up  voluntarily  did  not  take  away  their 
sower  of  transferring  their  shares,  and  that  the 
tssssfers  of  the  1,519  shares  were  not  invalid  on 
that  ground;  that  a  committee  of  the  board 
si  directors  need  not  consist  of  more  than  one 
penon,  and  that  H.  B.  had  authority  to  approve 
the  transfers  ;  that  it  was  not  to  be  inferred  in 
the  absence  of  express  evidence  that  the  transfers 
had  not  been  executed  by  the  transferees  ;  that, 
st  they  had  not  been  so  executed,  they  were  not 
anility  but  only  irregular,  and  that  after  they 
sad  been  acted  upon  and  treated  as  valid  for  so 
long  a  period   they  could  not  be  impeached ; 
sad,  therefore,  that  X.  and  T.  could  not  be 


placed  on  the  list  of  contributories  as  present 
members.  ChappelVs  ease  (6  L.  R.,  Ch.  902) 
distinguished.  Taurine  Company,  In  ref  25  Ch. 
D.  118 ;  53  L.  J.,  Ch.  271 ;  49  L.  T.  614  ;  32  W. 
R.  129— C.  A. 

Held,  by  Lindley  and  Fry,  L.JJ.,  that  X.  and 
T.  could  not  be  placed  on  the  B  list  as  past 
members,  for  that  the  winding-up  was  to  be 
treated  as  having  commenced  at  the  presentation 
of  the  petition,  which  was  more  than  twelve 
months  after  they  transferred  their  shares. 
Dissentiente,  Cotton,  L.J.,  who  was  of  opinion 
that  it  commenced  from  the  date  of  the  resolu- 
tion for  voluntary  winding-up,  at  which  time  X. 
and  T.  had  not  ceased  for  twelve  months  to  be 
shareholders.    lb. 


Transfer— Laches  of  Company — 
Order  to  substitute  Jams.]— In  February,  1888, 
A.,  the  registered  holder  of  certain  shares,  exe- 
cuted for  value  a  deed  of  transfer  (the  name  of 
the  transferee  being  left  in  blank),  and  handed 
the  transfer  and  the  share  certificate  to  the  pur- 
chaser. Afterwards  the  transfer  and  certificate 
came  into  the  possession  of  W.,  who,  in  February, 
1884,  filled  in  his  own  name  as  transferee  and 
sent  the  complete  transfer  (with  the  certificate) 
to  the  office  of  the  company,  requesting  that  tb» 
shares  might  be  registered  in  his  name  and  a  new 
certificate  issued.  A.  never  took  any  steps  to 
get  the  transfer  registered.  Through  the  default 
of  the  company  the  transfer  never  was  registered. 
In  April,  1884,  a  winding-up  order  was  made. 
A.  now  applied  to  have  W.'s  name  substituted 
for  his  as  the  holder  of  the  shares : — Held,  that 
he  was  entitled  to  the  order  asked  for.  Man- 
chester and  Oldham  Bank,  In  re,  54  L.  J.,  Ch. 
926— Pearson,  J. 

Infant— Acquiescence.]— Six  hundred  shares 
in  a  company  were  in  1882  put  in  the  name  of 
W.,  then  an  infant,  by  his  employer,  and  W.  was 
informed  that  he  was  entered  on  the  register  in 
respect  of  them.  W.  never  made  any  applica- 
tion for  the  shares,  nor  was  any  notice  of  allot- 
ment sent  to  him.  In  May,  1883,  W.  executed 
a  transfer  of  the  shares,  and  left  it  with  the 
company  for  registration,  but  the  company 
declined  to  register  it.  W.  was  informed  of 
this,  and  he  then  mentioned  to  the  secretary  of 
the  company  that  he  intended  to  repudiate  the 
shares,  but  he  took  no  steps  at  that  time  to  do 
so.  W.  attained  twenty-one  on  the  13th  Jan., 
1886.  On  the  10th  October,  1887,  a  resolution 
was  passed  to  wind  up  the  company,  and  on  the 
18th  Nov.,  1887,  W.  took  out  a  summons,  asking 
to  have  his  name  struck  off  the  list  of  contribu- 
tories : — Held,  that  from  the  date  of  his  coming 
of  age  to  the  date  of  the  resolution  to  wind  up 
the  company  W.  must  be  taken  to  have  known 
that  his  name  was  on  the  register,  and  that  as 
he  had  chosen  to  allow  it  to  remain  there  during 
all  that  time  without  taking  any  steps  to  remove 
it,  he  could  not  have  it  removed  now.  Teoland 
Consols,  In  re,  58  L.  T.  922 ;  1  Meg.  89— 
Stirling,  J. 

t  Trustees. 

Trustees  for  Company— Whether  entitled  as 
against  Creditors  to  Indemnity.] — D.  and  F. 
were  joint  managers  of  the  Minister  Bank,  and 
while  so  acting,  a  number  of  stocks,  shares,  and ' 
other  securities,  and  amongst  others  40,000!. 

Q2 


456 


COMPROMISE. 


456 


Consols  and  60,0002.  New  Three  per  Gent  Stock, 
were  transferred  into  their  names  as  trustees  for 
the  bank.  There  was  also  assigned  to  them 
by  certain  customers  of  the  bank  801  shares 
in  the  bank  itself,  as  security  for  moneys  due 
or  to  become  due  from  them  to  the  bank ; 
and  these  shares  were  at  the  date  of  the 
liquidation  standing  in  the  names  of  D.  and 
F.  During  the  years  1883  and  1884  the  40,0002. 
Consols  and  60,000Z.  New  Three  per  Cent.  Stock 
were  transferred  to  the  Bank  of  Ireland  as 
security  for  advances  to  the  M.  Bank  on  an 
account  entitled  in  the  name  of  the  Governor 
and  Company  of  the  Bank  of  Ireland  "  in  col- 
lateral account  with  D.  and  F.,  both  of  the  M. 
Bank."  The  M.  Bank  stopped  payment  in  July, 
1885,  and  was  being  wound  up.  F.  absconded, 
and  on  the  1st  October,  1885,  an  order  was  made 
that  the  estate  and  interest  of  D.  and  F.  in  the 
40,000/.  Consols  and  60,0002.  New  Three  per 
Cent  Stock  should  vest  in  D.  and  the  liquidators 
of  the  M.  Bank.  The  Bank  of  Ireland  having 
been  paid  off,  the  40,0002.  Consols  and  60,0002. 
New  Three  per  Cent.  Stock  were,  on  the  5th 
October,  1885,  transferred  into  the  names  of  D. 
and  the  liquidators.  The  liquidators  placed  D. 
on  the  list  of  contributories  in  respect  of  the  801 
shares  and  made  a  call  thereon,  and  they  also 
required  D.  to  join  with  them  in  realizing  the 
stock.  D.  claimed  to  be  indemnified  against  the 
calls  out  of  these  stocks.  On  a  summons  to 
decide  on  D.'s  claim  : — Held,  that  as  against 
creditors,  D.  had  no  such  right  of  indemnity. 
Munster  Bank,  In  re,  Dillon'*  Claim,  17  L.  B., 
Ir.  341— C.  A. 


g.  Company  Limited  by  Guarantee. 

Memorandum  and  Articles — Limitation  of 
liability  in  event  of  Winding-up.]— The  defen- 
dant was  the  owner  of  a  ship  insured  and  entered 
in  a  certain  class  of  a  mutual  marine  insurance 
association,  which  was  limited  by  guarantee  and 
incorporated  under  the  Companies  Act,  1862. 
The  object  of  the  association  was  the  mutual 
insurance  of  ships  of  members  or  in  which  they 
were  interested.  According  to  its  rules  a  person, 
by  entering  his  ship  to  be  insured,  as  the  defen- 
dant had  done,  became  a  member  of  the  asso- 
ciation, and  whilst  his  ship  was  insured  by  the 
other  members  of  his  own  class  he  was  an  insurer 
of  the  vessels  of  such  other  members  entered  in 
the  same  class  as  that  in  which  his  own  had  been 
so  entered.  By  the  memorandum  of  association 
the  declaration  of  the  undertaking  required,  by 
s.  9  of  the  Companies  Act,  1862,  on  the  part  of  a 
member  of  an  association  limited  by  guarantee, 
was  as  follows : — "  Every  member  of  the  asso- 
ciation undertakes  to  contribute  to  the  assets  of 
the  association  in  the  event  of  the  same  being 
wound  up  during  the  time  that  he  is  a  member, 
or  within  one  year  afterwards,  for  payment  of 
the  debts  and  liabilities  of  the  association  con- 
tracted before  the  time  at  which  he  ceases  to  be 
a  member,  and  the  costs,  charges,  and  expenses 
of  winding-up  the  same,  and  for  the  adjustment 
of  the  rights  of  the  contributories  amongst  them- 
selves such  amount  as  may  be  required,  not 
exceeding  52."  Whilst  the  defendant's  ship 
continued  to  be  so  insured  and  the  defendant 
was  such  member  the  association  resolved  to  be 
wound  up  voluntarily : — Held,  that  the  defen- 
dant was  liable  to  pay  his  proportion  of  losses  in 


respect  of  vessels  entered  and  insured  in  the 
same  class  as  his  own,  and  that  his  liability  was 
not  limited  to  52.,  since  the  debts  and  liabilities 
mentioned  in  the  declaration  of  undertaking 
were  those  of  the  association  as  against  its 
members,  and  in  respect  of  which  the  9th  section 
of  the  statute  required  such  declaration  to  be 
contained  in  the  memorandum  of  association, 
and  were  not  the  debts  and  liabilities  to  which 
the  members  by  the  rules  of  the  association  were 
to  contribute  as  insurers  or  as  insured.  Lum 
Insurance  Association  v.  Tucker,  12  Q.  B.  D. 
176  ;  53  L.  J.,  Q.  B.  185  ;  49  L.  T.  764  ;  32  W.R. 
546— C.  A. 


COMPENSATION. 

On  taking  Lands.]— See  Lands  Clauses  Act. 
Under  Public  Health  Let,}— See  Health. 
Under  Artisans1  Dwellings  Art.]— See  Ann- 

BANS. 

In  respect  of  Telegraphs.] — See  Telegraph. 


composition. 


See  BANKRUPTCY. 


COMPROMISE. 

Depriving  Solicitor  of  Lien.] — See  Solicitor 
(Lien). 

Of  Intended  Aotion— Good  Consideration,]— 

A  bona  fide  compromise  of  a  real  claim  is  a  good 
consideration,  whether  the  claim  would  have 
been  successful  or  not.  Cook  v.  Wright  (1  B. 
&  S.  559)  ;  Callisher  v.  Bischoffeheim  (5LR, 
Q.  B.  449)  ;  and  Ochford  v.  Barelli  (20  W.  B. 
116),  approved,  and  the  observations  in  Banner, 
Ex  parte  (17  Ch.  D.  480,  490),  by  Lord  Esher, 
M.R.,  on  the  authority  of  these  cases,  dissented 
from  by  the  court.  Mile*  v.  New  Zealand  AXfori 
Ettate  Company,  32  Ch.  D.  266  ;  55  L.  J.,  Ch. 
801  ;  64  L.  T.  682  ;  34  W.  R.  669— C.  A. 

Agreement  for— Subsequent  Death  of  Plaintiff 
Intestate — Adoption  by  Administrator  — Belatioa 
back.] — The  plaintiff  in  an  action  having,  at 
the  instance  of  the  defendant,  consented  to  a 
compromise  of  the  action,  the  plaintiffs  solicitors 
suggested  that  the  defendant  should  make  an 
offer  of  a  money  payment  in  satisfaction  of  the 
plaintiff's  interest  in  certain  property  which  was 
the  subject  of  the  action.  The  defendant's 
solicitors  asked  the  plaintiff  to  name  a  sum 
which  he  would  accept.  A  few  days  later  the 
plaintiff  died  intestate.  His  daughter  thereupon 
instructed  the  plaintiff's  solicitors  to  agree  to  a 


457 


COMPROMISE. 


458 


compromise  of  the  action  on  payment  by  the 

defendant  of  5002.    The  defendant's  solicitors 

replied  that  the  defendant  would  pay  450/.  in 

discharge  of  all  claims.    This  offer  was  accepted 

by  the  plaintiff's  daughter.   1 1  was  then  arranged 

that  t  gammons  should  be  taken  out  by  consent, 

staying  all  further  proceedings  in  the  action  on 

toe  terms  agreed  upon.    Shortly  afterwards  the 

defendant's  solicitors  stated  that,  the  defendant 

taring  discovered  the  property  to  be  less  valuable 

tnan  be  originally  believed,  it  was  impossible  for 

him  to  pay  450/.  The  plaintiffs  solicitors  declined, 

however,  to  vary  the  terms  of  the  compromise. 

Letters  of  administration  to  the  plaintiffs  estate 

were  subsequently  granted  to  his  daughter,  and 

an  order  was  made  that  the  proceedings  in  the 

action  should  be  carried  on  by  her  as  plaintiff. 

A  sammons  was  then  taken  out,  on  behalf  of  the 

plaintiff,  to  stay  all  further  proceedings  in  the 

action  on  the  terms  agreed  upon.   The  defendant 

refused  to  consent  to  such  summons : — Held ,  that 

the  administration  related  back  to  the  date  of 

the  death  of  the  plaintiff  intestate,  and  the 

plaintiffs  daughter  was  entitled  to  enforce  the 

agreement  to  compromise  the  action,  although 

the  same  had  been  entered  into  before  the  grant 

of  administration ;  that  the  evidence  did  not 

show  that  there  had  been  any  repudiation  of 

such  agreement ;  and  that  therefore  the  order 

asked  for   by  the   summons   must   be   made. 

Baker  v.  Baker,  56  L.  T.  723— Kay,  J. 

Divorce  Aetion — Power  to  make  Agree- 
ment an  Order  of  Queen's  Bench  Division.] — An 
action  for  judicial  separation  in  the  Divorce 
Division  was  compromised  by  the  parties,  and 
an  agreement  of  compromise  signed  by  them 
which  provided  that  a  separation  deed  should  be 
executed  ;  that  the  agreement  might  be  made  a 
role  of  the  High  Court,  and  that  tike  respondent 
should  pay  the  petitioner's  taxed  costs.  A  sepa- 
ration deed  was  afterwards  executed,  but  the 
respondent  refused  to  pay  the  taxed  costs,  and 
the  agreement  was  made  an  order  of  the  Queen's 
Bench  Division  for  the  purpose  of  enforcing  pay- 
ment : — Held,  that  there  was  power  to  make  the 
agreement  an  order  of  court  in  the  Queen's 
Bench  Division,  and  that  as  the  agreement  of 
compromise  had  been  reduced  to  an  agreement 
to  pay  costs,  the  discretion  of  the  court  to  make 
the  order  had  been  rightly  exercised.  Smyths 
t.  Smuthe,  18  Q.  B.  D.  544  ;  56  L.  J.,  Q.  B.  217  ; 
H  L.  T.  197  ;  35  W.  R.  346— D. 

Power  ef  Counsel  to  enter  into,]— See  Bab- 


COMPULSORY    PILOTAGE. 

See  SHIPPING. 


COMPULSORY    PURCHASE 
OF    LANDS. 

8ee  LANDS  CLAUSES   ACT. 


COMPULSORY    REFER- 
ENCES. 

See  ARBITRATION. 


CONDITIONS. 

In  Contracts.]— See  Contract. 

On  Sale  of  Property.]  —  See  Vendob  and 

Purchases. 

In  Bills  of  Bale.]-— See  Bill  of  Bale. 
In  Willi.]— See  Will. 


CONFESSION. 

See  CRIMINAL  LAW  (PRACTICE). 


CONFLICT    OF    LAWS. 

See  INTERNATIONAL  LAW. 


CONSIDERATION. 

Of  Bills  of  Sxohange.] — See  Bills  of  Ex- 
change. 

Of  Bills  of  Sale.]— See  Bills  of  Sale. 

In  other  eatee.]— See  Contract. 


CONSIGNEE. 

Under  Bill  of  Lading.] — See  Shipping. 

Carriage    of    Goods    and   Animals.]  —  See 
Carrier. 


CONSPIRACY. 

Combination  to  keep  down  Freights— Biral 
Shipowner*.]— The  plaintiffs  complained  that 
the  defendants  unlawfully  contrived  and  con- 
spired to  prevent  the  plaintiffs  carrying  on  their 


469 


CONSPIEACY. 


460 


trade  by  forming  themselves  into  a  conference 
offering  a  rebate  of  five  per  cent,  upon  all 
freights  paid  by  those  shippers  who  shipped 
their  cargoes  on  board  conference  vessels  alone, 
to  the  exclusion  of  the  plaintiffs'  vessels : — Held, 
that  the  combination  was  not  unlawful,  and 
that  the  defendants  were  not  guilty  of  a  mis- 
demeanour ;  that  the  acts  done  in  pursuance  of 
the  combination  were  not  unlawful,  wrongful, 
malicious,  nor  in  restraint  of  trade.  The  bargain 
was  one  the  defendants  had  a  right  to  make,  and 
they  were  entitled  to  judgment.  Mogul  Steam- 
ship Company  v.  MeGreaor,21  Q.  B.  D.  644  ;  67 
L.  J.,  Q.  B.  641  ;  69  L.  T.  514- Coleridge,  C.  J. 
Affirmed  33  S.  J.  608— C.  A. 

Combination  to  exclude  Ships  from  particular 
Ports.] — Semble,  a  combination  made  with  a 
view  of  excluding  particular  ships  from  certain 
ports  altogether,  resulting  in  injury  to  the  owners 
of  such  ships,  and  not  merely  to  advance  the 
trade  of  the  persons  combining,  is  against  public 
policy,  and  an  actionable  conspiracy.  Mogul 
Steamship  Company  v.  McGregor,  16  Q.  B.  D. 
476 :  64  L.  J.,  Q.  B.  540 ;  63  L.  T.  268 ;  49 
J.  P.  646 ;  15  Cox,  C.  C.  740 ;  6  Asp.  M.  C. 
467— D. 

Granting  of  Interim  Injunction.]  —  Several 
shipping  merchants  whose  vessels  traded  regu- 
larly and  all  the  year  round  to  and  from  certain 
Chinese  ports,  formed  themselves  into  a  con- 
ference, and  agreed  to  allow  a  rebate  every  six 
months  of  five  per  cent,  on  all  freight  to  those 
merchants  who  shipped  their  goods  exclusively 
on  conference  vessels,  and  issued  a  circular  notice 
that  any  shipment  of  goods  on  a  non-conference 
vessel  would  render  the  shipper  liable  to  forfeit 
the  rebate  on  all  his  shipments  in  the  conference 
vessels.  The  result  was  that  the  plaintiffs,  part 
owners  of  non-conference  vessels,  trading  to  the 
same  ports,  bad  to  ship  goods  at  an  unremunera- 
tive  rate  to  counteract  the  loss  of  the  rebate, 
and  sustained  damages,  for  which  they  sued.  On 
an  application  for  an  interim  injunction  to 
restrain  the  issue  of  the  circulars,  and  to  restrain 
the  defendants  so  acting  as  to  prevent  the  plain- 
tiffs shipping  goods  from  those  ports  at  an  un- 
remunerative  rate : — Held,  that  there  being  no 
evidence  of  danger  of  irreparable  injury  to  the 
plaintiffs,  and  the  cause  of  action  being  on  the 
affidavits  not  free  from  doubt,  the  court  ought  not 
to  grant  an  interim  injunction,    lb. 

Criminal  Conspiracy.]—^  Criminal  Law. 


CONTEMPT    OP   COURT. 


CONSTABLE. 

See  POLICE. 


CONTAGIOUS    DISEASES. 

See  ANIMALS. 


1.  What  Amount*  to, 

2.  Practice, 


1.  What  Amounts  to. 

Abusive  Language  — Interference  with  ad- 
ministration of  Justice— Judge  in  Chamhers.]- 
After  the  hearing  of  an  application  before  the 
judge  in  Chambers,  a  solicitor  who  was  engaged 
in  lie  case,  after  the  parties  had  left  the  judge's 
chambers  and  gone  into  the  adjoining  hall,  began 
to  call  the  solicitor  for  the  other  side  foul  and 
offensive  names  in  connexion  with  the  proceed- 
ings before  the  judge,  and  continued  doing  so 
while  going  downstairs  until  they  reached  the 
entrance  to  the  building,  when  he  shook  his  fist 
in  the  other  solicitor's  lace,  though  he  did  not 
actually  strike  him :— Held,  that  this  conduct 
was  an  interference  with  the  administration  of 
justice  in  connexion  with  the  proceedings  at 
chambers ;  and  that  as  the  judge  in  chambers 
was  engaged  in  the  exercise  of  his  judicial  func- 
tions as  a  judge  of  the  High  Court,  the  conduct 
was  a  contempt  of  the  court  of  which  the  judge 
was  the  representative,  and  the  court  had  power 
to  commit  for  contempt.  Johnson,  In  re,  SO 
Q.  B.  D.  68  ;  67  L.  J.,  Q.  B.  1  ;  68  L.  T,  160, 
36  W.  R.  61  ;  52  J.  P.  230— C.  A. 

Insult  to  Judge.]— To  observe  to  a  judge  in 
the  course  of  and  in  reference  to  his  judgment 
that  "  That  is  a  most  unjust  remark  "  is  an  insult 
to  the  court  in  whatever  manner  expressed,  and 
if  not  withdrawn,  amounts  to  such  a  "  wilful 
insult"  as  is  contemplated  by  s.  113  of  the 
County  Courts  Act,  1856.  Reg.  v.  Jordan,  3* 
W.  R.  589— D.  See  S.  C.  in  C.  A.  s.  n.  iky.* 
Staffordshire  County  Court  Judge,  sub  tit. 
County  Coubt. 


Comments  in  newspaper — Lis  pendemi.1  — 
Contempt  of  court  in  connexion  with  public 
comments  on  proceedings  in  a  court  of  justice  is 
an  attempt  to  distort  the  ends  of  justice.  Dell** 
v.  Ledger,  62  J.  P.  328— D. 

L.  was  defendant  in  an  action  for  libel,  and  at 
the  trial  the  jury  found  a  verdict  against  him. 
L.  thereupon  gave  notice  of  motion  for  a  new 
trial,  and  meanwhile  wrote  an  article  in  his 
newspaper  commenting  adversely  upon  the  con- 
duct of  the  jury : — Held,  that  such  comment  did 
not  amount  to  a  contempt  of  court.    lb. 

Advertisement  Offering  Reward  for  Evidence.] 
— In  a  suit  for  divorce  on  the  wire's  petition  on 
the  grounds  of  adultery  and  cruelty,  the  husband 
caused  to  be  printed  and  published  about  the 
district  in  which  the  wife  and  her  family  resided 
a  notice  purporting  to  be  signed  by  him,  offering 
a  reward  of  25Z.  for  evidence  of  the  confinement 
of  a  young  married  woman  of  a  female  child, 
"  probably  not  registered :  "—Held,  that  this  was 
a  contempt  of  court  as  tending  to  prejudice  the 
petitioner,  and  discrediting  her  in  the  assertion 
of  her  rights,  and  a  writ  of  attachment  ordered 
to  issue.  Pool  v.  Sacheverel  (1  P.  Wm.  676) 
questioned.  Butler  v.  Butler,  13  P.  D.  73  ,*  57 
L.  J.,  P.  42  ;  58  L.  T.  563— Butt,  J. 

After  service  of  the  citation  upon  a  corre- 
spondent in  a  divorce  suit,  he  forthwith  caused 


m 


CONTEMPT    OF    COURT. 


462 


to  be  inserted  in  the  local  newspapers  an  identical 
advertisement,  denying  the  allegations  in  the 
petition  and  offering  a  reward  for  information 
concerning  them  :— -Held,  to  constitute  a  con- 
tempt of  court.  Brodribb  v.  Brodribb,  11  P.  D. 
M;  55 L.  J., P.  47;  66  L.  T.672;  34W.R.580; 
60  J.  P.  407— Hannen,  P. 

Qreular  containing  Libel  on  Business — Part- 
itreaip— Beeeiver  and  Manager.]— A  libel  on  the 
badness  carried  on  by  a  receiver  and  manager 
appointed  by  the  court  is  a  contempt  of  court, 
and  may  be  punished  by  committal  of  the 
offender.  After  the  court  had  made  an  order 
appointing  a  receiver  and  manager  of  a  business, 
a  farmer  clerk  of  the  firm  sent  round  a  circular 
to  the  customers  of  the  firm  containing  an  unfair 
statement  of  the  effect  of  the  order,  and  soliciting 
their  custom  for  his  own  business.  As  he  declined 
to  give  an  undertaking  not  to  repeat  the  offence, 
the  judge  committed  him  to  prison  for  contempt 
of  court,  and  the  committal  was  upheld  by  the 
Court  of  Appeal.  Helmore  v.  Smith,  35  Ch.  D. 
449;  66  L.  J.,  Ch.  146  ;  56  L.  T.  72  ;  36  W.  R. 
157-C.  A. 

Chief  Clerk's  Summons — Insobedienee  to— 
VUaees— Party.] — An  action  was  commenced 
(inter  alia)  to  recover  from  the  defendant  certain 
books,  papers,  documents,  and  securities  belong- 
ing to  the  plaintiff  which  were  retained  in  the 
possession  of  the  defendant  The  defendant  did 
not  enter  an  appearance,  nor  did  he  deliver  any 
defence.  A  chief  clerk's  summons  was  subse- 
oaently  issued  on  the  part  of  the  plaintiff  for 
the  attendance  of  the  defendant  at  the  chambers 
of  the  judge  to  be  examined  on  the  part  of  the 
plaintiff  for  the  purpose  of  the  proceedings 
directed  by  the  judge  ;  and  also  to  bring  with 
bin  and  produce  all  the  documents  in  his  pos- 
elati 


relating  to  the  matters  in  dispute  in  the 
action.  The  defendant  haying  neglected  to  obey 
the  summons,  a  motion  was  made  for  leave  to 
imeawrit  of  attachment  against  him  for  his 
contempt.  In  support  of  the  motion  it  was  con- 
tended that,  the  motion  being  made  under  rules 
16  and  17  of  Ord.  LV.  of  the  Rules  of  Court, 
1863,  the  defendant  was  guilty  of  contempt  in 
not  attending  within  the  meaning  of  those  rules, 
disobedience  to  a  summons  being  equivalent 
to  disobedience  to  an  order  of  the  court,  and 
that  the  defendant  was  being  dealt  with  as  a 
party : — Held,  that  it  was  immaterial  that  the 
defendant  was  a  party  to  the  action,  inasmuch 
ss  he  was  summoned  to  be  examined  as  a  witness, 
sad  mutt  be  dealt  with  accordingly ;  that  the 
disobedience  was  not  disobedience  to  an  order  of 
the  court ;  and  that  the  proper  course  was  for 
an  order  to  be  made,  under  the  rule  13  of  Ord. 
XXXVTL,  before  the  writ  of  attachment  was 
Powell  v.  NeviU,  66  L.  T.  728— Kay,  J. 


to  bring  8eript  into  Registry.] — 
where  a  writ  of  subpoena  was  issued  in  a  non- 
contentious  matter  directing  B.,  a  solicitor,  to 
bring  into  the  Probate  Registry  a  script  which 
was  stated  to  be,  but  which  was  not  in  fact,  in 
bis  possession  or  control : — Held,  that  his  non- 
compliance with  the  subpoena  was  not  under  the 
cbeumstances  a  contempt ;  that  the  fact  that  he 
bad  not  followed  the  practice  general  in  such  a 
ease  (and  compulsory  in  a  contentious  matter) 
of  ihng  an  affidavit  explaining  the  reason  for 
mi  non-compliance,  with  which  practice  he  was 


acquainted,  was  not  a  contempt.  Emmerton,  In 
re,  Rowling*  v.  Enmerion,  67  L.  J.,  P.  1— 
0.  A. 

Barrister— Untrue  Affidavits.] — On  a  motion 
to  commit  a  barrister  and  counsel  in  a  case  to 
prison  for  contempt  of  court,  the  court  held  that 
it  is  the  barrister's  duty  when  he  knew  affidavits 
were  about  to  be  used  which  amounted  to 
chicanery  to  disclose  the  fact,  and  that  his  fault 
did  not  consist  in  not  throwing  up  his  brief,  but 
in  having  made  himself  a  party  to  a  fraud,  by 
conspiring  with  others  in  inducing  a  person  to 
make  these  affidavits,  which  were  used  to  delude 
the  court.  Linwood  v.  Andrews,  68  L.  T.  612 — 
Kay,  J. 

Vegleet  to  File  Affidavit  of  Documents.  ]->&* 

Disco  veby. 

2.  PRACTICE. 

Proceedings  for  Attachment}—- Am  Attach- 
ment. 

Committal  Order  —  Contents.] — A  committal 
order  for  contempt  of  court  must  specify  in 
what  particular  the  party  was  guilty  of  contempt, 
so  as  to  enable  him  to  purge  his  contempt, 
and  if  the  order  does  not  contain  the  necessary 
particulars  it  is  bad  for  uncertainty.  Reg.  v. 
Lambeth  County  Court  Judge,  36  W.  R.  476— 
D. 

Procedure  in  County  Court  ]— &V«  Couott 
Coubt. 

Terms  of  Order  for  Discharge  of  Prisoner.] — 

The  defendant  was  in  custody  for  contempt  of 
court  under  the  following  circumstances : — In 
1877  she  had  brought  an  action  for  the  recovery 
of  some  houses  which  she  supposed  to  be  her 
property.  It  was  decided  that  she  had  no  title,, 
but  between  this  date  and  1886  she  continued  to 
assert  her  claim  by  legal  proceedings,  and 
attempted  to  take  forcible  possession  of   the 

E remises.  In  1886  an  injunction  was  obtained 
y  the  plaintiff  restraining  the-  defendant  and 
her  agents  from  further  molesting  the  owner  and 
tenants  of  the  estate ;  but  she,  notwithstanding, 
again  endeavoured  to  take  possession,  and  was  in 
consequence,  in  December,  1886,  imprisoned  for 
contempt  of  court.  She  was  informed  when  sent 
to  prison  that  if  she  would  undertake  to  abandon 
her  claim  and  to  abstain  from  further  efforts  to 
take  possession  of  the  premises,  she  would  be 
released.  She  refused  to  give  this  undertaking, 
and,  in  consequence,  remained  in  custody  till 
June,  1888  :— Held  (in  June,  1888),  that  the 
defendant  might  be  discharged  from  custody  on 
the  terms  of  an  order  which  had  been  assented 
to  by  the  counsel  for  the  plaintiff,  and  which  was 
read  in  her  presence.  The  terms  of  the  order 
were  that  the  injunction  should  continue  for  the 
term  for  which  the  plaintiff  held  the  premises, 
and  that  in  order  to  prevent  any  breach  of  the 
injunction  by  the  defendant,  a  copy  of  the  order 
should  be  given  to  the  owner  with  a  view  to  his 
obtaining  the  assistance  of  the  police,  should  the 
defendant  again  attempt  to  obtain  possession  ; 
that  in  case  of  any  breach  of  the  injunction  the 
official  solicitor  should,  upon  the  application  of 
the  plaintiff,  take  the  necessary  steps  to  bring 
the  offenders  before  the  court  and  to  enforce 
performance  of  the  order;  that  the  defendant 


1 


468 


CONTRACT— formation  and  Construction. 


464 


should  not  be  allowed  to  issue  any  writ  or  summons, 
or  make  any  application  or  motion  without  the 
leave  of  a  judge  at  chambers  ;  and  that,  should 
notice  of  any  application  or  motion  be  given 
without  such  leave,  the  official  solicitor  might  be 
informed  by  letter,  and  the  respondent  should 
not  be  required  to  appear  unless  the  court  should 
otherwise  order.  Davies,  In  re,  21  Q.  B.  D.  236  ; 
37  W.  R.  57— D. 


CONTRACT. 

I.  Formation  and  Construction. 

1.  Formation  Generally,  463. 

2.  What  Term*  Implied,  465. 

3.  Extrinsic  Evidence — Admissibility.   See 

Evidence. 

4.  Causes  vitiating  Agreements,  467. 

5.  Construction  and  form,  467. 

6.  Statute  of  Frauds,  468. 

a.  Sufficiency  of  Note  or  Memorandum, 

468. 

b.  Sale  of  Goods,  472. 

c.  Interest  in  Land,  472. 

d.  Agreement  in  consideration  of  Mar- 

riage, 472. 

e.  Not  to  be  performed  within  a  Year, 

473. 
/.  Part  Performance,  474. 

II.  Parties  to  the  Contract. 

IIL  The  Matter  of  Contracts,  475. 

1.  Conditions,  476. 

2.  Consideration,  478. 

3.  Illegal  Contracts,  481. 

a.  General  Principles,  481. 

b.  Contrary  to  Statute,  481. 

c.  Gaming  and  Wagering,  482. 

d.  Against  Public  Policy  and  Decency, 

483. 

e.  Contrary  to  Morality,  483. 

/.  Affecting  Administration  of  Justice, 

483. 
g.  In  Restraint  of  Trade,  485. 
i.  General  Principles,  486. 
ii.  Reasonableness,  485. 
iii.  What  Constitutes  a  Breach,  487. 
iv.  Proceedings  by  Assignee  to  en- 
force, 488. 

IV.  Discharge  and  Breach  of  Contracts. 

V.  Assignment  of  Contracts— See  Assign- 
ment. 

VI.  Specific    Performance— See  Specific 
Performance. 


I.  formation  and  construction. 

1.  FORMATION    GENERALLY. 

Contract  by  Hotiee.]— Where  the  owners  of  a 
tug  gave  notice  that  they  would  not  be  answer- 
able for  any  loss  or  damage  occasioned  to  any 
tow  by  any  negligence  or  default  of  them  or  their 
servants,  and  such  notice  was  brought  to  the 
knowledge  of  the  owners  of  the  tow,  and  the 
latter  was  lost  through  the  tug  taking  more 


vessels  than  she  could  properly  manage,  and 
more  than  were  allowed  by  regulations  made 
under  the  Piers  and  Harbours  Act,  1847  (10  k 
11  Vict.  c.  27),  and  the  Great  Yarmouth  Port 
and  Haven  Act,  1866  : — Held,  that  the  owners 
of  the  tug  were  exempt  from  liability.  The 
United  Service,  or  Cole  v.  Great  Yarmouth 
Steam  Tug  Company.  9  P.  D.  3  ;  53  L.  J.,  P.  1  ; 
49  L.  T.  701  ;  32  W.  R.  565  ;  6  Asp.,  M.  0. 170— 
C.A. 

Ho  ooneluded  Agreement — Formal  Contract 
contemplated.] — A.  and  B.  agreed  to  take  C. 
into  partnership  at  a  future  date,  the  agreement 
required  by  both  sides  to  be  drawn  up  by  soli- 
citors. The  parties  had  not  considered,  and 
could  not  afterwards  agree  upon,  several  terms 
of  the  intended  partnership  : — Held,  that  there 
was  no  concluded  agreement  between  the  parties. 
Connery  v.  Best,  1  C.  &  E.  291— Hawkins,  J. 

In  July,  1884,  P.,  who  was  entitled  in  fee  to  a 
beerhouse  at  B.  as  trustee,  agreed  to  sell  the 
same  to  the  plaintiffs,  but  he  declined  to  com- 
plete the  purchase,  and  the  plaintiffs  threatened 
him  with  legal  proceedings.  Subsequently  fresh 
negotiations  were  entered  into  for  the  purchase 
of  the  property,  and  on  the  20th  December  P. 
authorised  his  solicitor  to  sell  to  the  plaintiffs  for 
1,0002.  on  condition  that  they  relinquished  any 
right  of  action  they  might  have  against  him.  At 
that  time  1,0002.  was  the  best  price  obtainable 
for  the  property.  The  plaintifrs  solicitors  were 
authorised  to  make  a  contract  for  the  plaintiffs. 
On  the  24th  P. 'a  solicitor  wrote  to  the  plaintiffs' 
solicitors, "  I  now  send  you  for  approval  draft 
contract  containing  the  terms  on  which  P.  is 
willing  to  sell  this  property  to  your  clients.  My 
client  declines  to  produce  an  earlier  title  than 
that  stated  as  the  commencement  of  the  title  in 
the  draft  contract."  The  draft  contract  con- 
tained stipulations  as  to  payment  of  price  and 
commencement  of  title,  but  it  contained  no  pro- 
vision as  to  the  relinquishment  of  any  right  of 
action.  The  contract  was  shortly  after  re- 
turned by  the  plaintiffs'  solicitors  approved. 
Upon  P.'s  refusal  to  complete,  the  plaintiffs 
brought  an  action  against  him  for  specific  per- 
formance : — Held,  that  there  was  no  concluded 
agreement  between  the  parties.  Held,  also,  that 
the  draft  contract  was  not  in  accordance  with 
the  authority  given  to  P.'s  solicitor.  Whether 
an  agreement  in  accordance  with  such  authority 
would  have  been  a  breach  of  trust,  quaere. 
Bushell  v.  Pocoek,  63  L.  T.  860— North,  J. 

The  plaintiff  and  defendant  signed  a  written 
document  whereby  the  defendant  agreed  to  buy 
and  the  plaintiff  agreed  to  sell  an  estate  therein 
described  at  a  specified  price,  "  subject  to  a 
formal  contract  .being  prepared  and  signed  by 
both  parties  as  approved  by  their  solicitors. 
A  correspondence  ensued,  in  the  course  of  which 
the  defendant's  solicitor  stated  that  the  defendant 
was  "quite  firm  in  adhering  to  the  agreement 
he  entered  into  "  to  give  a  certain  sum  per  acre 
for  the  property,  which  amounted  to  less  than 
the  specified  price.  A  formal  contract  was  pre- 
pared in  draft,  but  was  not,  nor  was  any  other 
formal  contract,  signed  by  the  parties  or  ap- 
proved by  their  solicitors.  In  an  action  for 
specific  performance  of  the  agreement  as  modified 
by  the  correspondence : — Held,  that  there  was 
no  concluded  agreement  between  the  parties 
which  was  capable  of  being  specifically  enforced. 
Winn  v.  Bull  (7  Ch.  D.  29)  followed.    Eawhes- 


465 


CONTRACT — Formation  and  Construction. 


466 


worth  v.  Ckaffey,  55  L.  J.,  Ch.  335  ;  54  L.  T.  72 
-Kay,  J. 

Where  made — Contract  by  Telegraph.] — An 
order  to  make  certain  bets  having  been  trans- 
mitted by  postal  telegraph  from  the  plaintiff 
without  the  City  of  London  to  the  defendant 
within  it,  he  telegraphed  from  the  City  that  the 
ozder  had  been  obeyed  : — Held,  that  the  contract 
of  agency  was  made  in  the  City,  and  that  an 
action  for  the  breach  of  such  contract  was  within 
the  jurisdiction  of  the  Mayor's  Court.  Cowan  v. 
O'Qmnor,  20  Q.  B.  D.  640  ;  57  L.  J.,  Q.  B.  401  j 
58  L.  T.  857  ;  36  W.  R.  895— D. 


2.  WHAT  TERMS  IMPLIED. 

Alignment  of  Patent  by  Deed  in  consideration 
ef  loyalty— Lapse  of  Patent  through  omission 
ef  Assignee — Covenant  to  maintain.] — By  a  deed, 
dated  in  1883,  a  patent  was  assigned  by  the  in- 
ventors and  patentees  to  a  company  in  con- 
sideration of  250/.,  and  the  other  considerations 
thereinafter  appearing.  The  deed  contained 
covenants  for  title  by  the  assignors,  including  a 
corenant  for  quiet  enjoyment  of  the  patent 
"during  the  term  subsisting  therein."  The 
company  covenanted  for  the  payment  of  a 
loyalty  for  every  article  manufactured  and  sold 
by  them  under  the  patent "  while  subsisting,"  and 
also  for  payment  of  a  share  of  any  sums  obtained 
by  granting  licences  under  the  patent "  while  sub- 
sisting." In  consequence  of  the  company  having, 
by  inadvertence,  omitted  to  pay  one  of  the  renewal 
fees  of  10/.,  payable  under  the  Patents,  Designs, 
and  Trade  Marks  Act,  1883,  in  lieu  of  the  stamp 
doty  of  50Z.,  the  patent  became  void.  An  unsuc- 
cessful application  was  then  made  by  the  company 
to  Parliament  for  an  Act  to  revive  the  patent. 
Subsequently  the  company  went  into  voluntary 
liquidation.  The  assignors  sent  in  a  claim  to 
the  liquidators  for  2,000/.  damages  for  the  loss  of 
the  patent,  contending  that  the  assignment  con- 
tained, by  implication,  though  not  in  express 
terms,  a  covenant  by  the  company  to  keep  the 
patent  on  foot.  Thereupon  a  summons  was 
taken  oat  by  the  liquidators  under  s.  138  of  the 
Companies  Act,  1862,  for  directions  as  to  whether 
they  should  allow  all  or  any  part  of  the  claim  : 
—Held,  that  there  was  no  implied  covenant  to 
keep  the  patent  on  foot,  and  that,  therefore,  the 
claim  of  the  patentees  entirely  failed.  But 
held,  that  even  if  such  a  covenant  could  be  im- 
plied, yet,  as  there  was  no  obligation  on  the  part 
of  the  company  to  manufacture  the  patented 
article,  in  no  circumstances  could  more  than 
luminal  damages  be  claimed.  Railway  and 
Ebt&rie  Appliances  Company,  In  re,  38  Ch.  D. 
m  \  57  L.  JM  Ch.  1027  ;  69  L.  T.  22  ;  36  W.  R. 
730— Kay,  J. 

Contract  of  Indemnity.] — Whenever  circum- 
stances arise  in  the  ordinary  business  of  life  in 
which,  if  two  persons  were  ordinarily  honest 
and  careful,  the  one  of  them  would  make  a  pro- 
mise to  the  other,  it  may  properly  be  inferred 
that  both  of  them  understood  that  snch  a  pro- 
mise was  given  and  accepted.  Ford,  Eos  parte, 
CkppeU,  In  re,  16  Q.  B.  D.  307  ;  55  L.  J.,  Q.  B. 
40$— Per  Esher  (Ld.),  M.  R. 


Goods    lawfully   seised    for    another's 

Debt.] — As  a  general  rule,  where  one  person's 
goods  are  lawfully  seized  for  another's  debt,  the 
owner  of  the  goods  is  entitled  to  redeem  them, 
and  to  be  reimbursed  by  the  debtor  against  the 
money  paid  to  redeem  them,  and  in  the  event  of 
the  goods  being  sold  to  satisfy  the  debt  the 
owner  is  entitled  to  recover  the  value  of  them 
from  the  debtor;  and  the  right  to  indemnity 
exists  although  there  may  be  no  agreement  to 
indemnify,  and  although  there  may  be  in  that 
sense  no  privity  between  the  owner  of  the  goods 
and  the  debtor.  Edmunds  v.  Wallingford,  14 
Q.  B.  D.  811  ;  54  L.  J.,  Q.  B.  305  ;  52  L.  T.  720  ; 
33  W.  R.  647  ;  49  J.  P.  549— C.  A.  Affirming  1 
C.  &  E.  334— Huddleston,  B. 

The  defendant  bought  the  business  of  an  iron- 
monger in  his  own  name  for  his  two  sons  ;  he 
paid  the  greater  part  of  the  purchase-money. 
The  banking  account  of  the  business  was  kept 
by  him,  and  he  drew  the  cheques  on  that  account. 
A  society  having  obtained  judgment  in  an  action 
against  the  defendant,  certain  goods  of  his  sons 
were  seized  by  the  sheriff  :  the  sons  claimed  the 
goods  ;  but  upon  an  interpleader  summons  taken 
out  by  the  sheriff,  the  claim  of  the  sons  was 
barred,  and  the  goods  were  sold.  They  realized 
1,3002.,  and  this  sum  was  paid  into  court  in  the 
action  by  the  society  against  the  defendant  as  a 
security  for  what  might  be  found  due  to  the 
society  from  the  defendant  upon  taking  certain 
accounts.  The  defendant's  sons  were  afterwards 
adjudicated  bankrupts,  and  the  plaintiff  was 
appointed  their  trustee.  The  defendant  agreed 
with  the  plaintiff  that  in  consideration  of  his 
sons'  goods  having  been  Beized  and  sold  on 
behalf  of  the  society  in  respect  of  an  alleged 
claim  against  him,  he  would  pay  300Z.  per 
annum  to  the  plaintiff  until  he  should  have  paid 
a  sufficient  sum  to  pay  the  trade  creditors  of  his 
sons  in  full.  The  plaintiff  having  brought  the 
present  action  to  recover  1,200Z.  due  by  virtue  of 
the  above-mentioned  agreement,  or  in  the  alter- 
native 1,300J.,  the  value  of  the  goods  seized : — 
Held,  that  even  if  the  defendant's  express  pro- 
mise to  pay  1,2002.  was  not  legally  binding  upon 
him,  nevertheless  the  action  was  maintainable  ; 
for  although  the  decision  upon  the  interpleader 
summons  did  not  estop  the  defendant  from  show- 
ing that  the  seizure  by  the  sheriff  was  unlawful, 
nevertheless  he  had  by  his  conduct  led  to  the 
seizure,  and  the  goods  of  his  sons  had  been 
legally  taken  for  his  debt ;  the  defendant,  there- 
fore, was  bound  to  indemnify  his  sons,  and  the 
plaintiff,  as  their  trustee  in  bankruptcy,  was 
entitled  to  have  judgment  entered  for  him  for 
the  sum  of  1,200J.,  which  he  was  willing  to  ac- 
cept instead  of  1,300?.,  the  value  of  the  goods 
seized.    lb. 

Recovery  of  Tithes.] — The  defendant  was 


C0UXT8. 


Compulsory  Payment.]  —  See   Monet 


the  owner  and  occupier  of  certain  lands  which 
were  charged  with  payment  of  tithes ;  there  was 
a  provision  for  recovery.  In  an  action  of  debt 
for  arrears  accrued  in  respect  of  the  whole  of  the 
lands  charged  for  four  years,  during  which  time 
the  defendant  was  the  owner  and  occupier  of  a 
portion  only  of  such  lands  : — Held,  that  the 
defendant  had  his  remedy  by  action  against  the 
co-owners  for  contribution.  Christie  v.  Barker, 
63  L.  J.,  Q.  B.  537— C.  A. 

Altered  Circomstanoei — Conditions  rendered 
inapplicable— Extra  Cost.]— Where  a  contract 


467 


CONTRACT — Formation  and  Construction. 


468 


is  made  with  reference  to  certain  anticipated 
circumstances,  and  when  it  becomes  wholly  in- 
applicable or  impossible  of  application  to  any 
such  circumstances,  without  any  default  on  the 
part  of  the  plaintiff,  it  ceases  to  have  any  appli- 
cation :  it  cannot  be  applied  to  other  circum- 
stances which  could  not  nave  been  in  the  con- 
templation of  the  parties  when  the  contract  was 
made.  Bush  v.  Whitehaven  Trustees,  52  J.  P. 
892— D. 

B.  contracted  with  W.  in  the  month  of  June 
to  lay  a  certain  conduit  pipe,  and  W.  agreed  to 
be  ready  at  all  times  to  give  B.  possession  of  the 
sites,  to  enable  him  to  proceed  with  the  construc- 
tion of  the  works.  By  means  of  W.'s  delay  in 
giving  possession  of  portions  of  the  sites  to  B., 
B.  was  thrown  into  the  winter  months  when 
wages  were  higher  and  the  works  were  more 
difficult  to  construct : — Held,  that  a  summer 
contract  having,  by  implication,  been  in  the 
contemplation  of  the  parties  when  the  contract 
was  made,  B.  was  entitled  to  a  quantum  meruit 
or  damages  in  respect  of  the  increased  expendi- 
ture which  he  was  thereby  compelled  to  incur. 
lb. 

3.  EXTRINSIC  EVIDENCE— ADMISSI- 
BILITY— See  EVIDENCE. 


4.  CAUSES  VITIATING  AGREEMENTS. 
Fraud.}— See  Fraud. 

Mistake.]—  See  Mistake. 


Illegality.]—^  infra,  III.,  3. 


6.  CONSTRUCTION  AND  FORM. 

Bywhat  law  governed.]— See  International 
Law. 

Reference  to  Foreign  Law — Effect  of.] — A 
reference  to  foreign  law  in  an  English  contract 
does  not  incorporate  the  foreign  law,  but  merely 
affects  the  interpretation  of  the  contract.  JDever, 
Exvarte,  Suse,  In  re,  18  Q.  B.  D.  660  ;  66  L.  J., 
Q.  B.  552— C.  A. 

Alterations  of.] — Where  the  subject-matter  of 
an  agreement  of  hiring  was  expressed  to  be 
"  furniture,  &c.,  &c,  mentioned  in  the  schedule 
hereto/'  and  the  schedule  was  added  by  the 
plaintiff  after  execution  : — Held,  that  this  did 
not  vitiate  the  agreement.  Harris  v.  Tenpany, 
1  C.  &  E.  65— Lopes,  J. 

Bight  to  retake  Possession  of  Goods.]— A  piano 
was  let  on  the  three  years'  hire  system,  under  an 
agreement  providing  that  "  In  case  of  default  in 
the  punctual  payment  of  any  instalment,  the 
instalments  previously  paid  shall  be  forfeited  to 
J.  B.  C,  who  shall  thereupon  be  entitled  to  re- 
sume possession  of  the  instrument " : — Held,  upon 
default,  that  J.  B.  C.  was  entitled  to  the  posses- 
sion of  the  piano,  although  the  instalments  in 
arrear  were  tendered  by  the  hirer,  before  action 
brought.  Cramer  v.  Giles,  1  C.  &  E.  151 — 
Lopes,  J.    Affirmed  in  C.  A. 

Construction— Fortius  contra  Proferentem.  ] — 


See  Burton  v.  English,  sub  tit.  Shipping,  and 
Birrell  v.  Dryer,  sub  tit.  Insurance  (Marine). 

"  His  Share  "  equivalent  to  Share  of  Firm.]— 
Where  a  memorandum  of  mutual  agreement  had 
been  entered  into  between  M.,  the  plaintiffs,  and 
three  other  firms,  whereby  M.  agreed  to  surrender 
to  the  plaintiffs  "  his  share  "  in  a  certain  mort- 
gage held  by  him  as  trustee : — Held,  upon  all  the 
circumstances  of  the  case,  that  the  share  of  M.'s 
firm  therein  passed,  and  not  merely  his  own  indi- 
vidual share  as  between  himself  and  his  partner. 
Marshal  v.  Mdelure,  10  App.  Cas.  325 — P.  C. 

Effect  of  Misunderstanding  aa  to  Subject- 
matter.]— A  negotiation  took  place  as  to  the 
sale  by  L.  to  P.  of  a  British  patent  and  certain 
foreign  patents  for  the  same  invention,  and 
ultimately  an  offer  was  made  for  sale  at  500?.r 
and  accepted  by  letter,  but  it  was  not  quite 
clear  whether  the  offer  and  acceptance  related 
to  all  the  patents  or  to  the  English  patent  only. 
P.  brought  an  action  for  specific  performance, 
and  moved  for  an  injunction  as  to  the  British 
patent  only  : — Held,  that  an  injunction  should 
be  granted,  for  that  where  a  written  agreement 
has  been  signed,  the  fact  that  the  plaintiff  has 
put  a  wrong  construction  upon  it,  and  insisted 
that  it  included  what  it  did  not  include,  does  not 
prevent  there  being  a  contract,  nor  preclude  the 
plaintiff  from  waiving  the  question  of  construction 
and  obtaining  specific  performance  according  to 
what  the  defendant  admits  is  its  true  construc- 
tion. Preston  v.  Luck,  27  Ch.  D.  497 ;  33  W.  R. 
317— C.  A. 

Whether  Acceptance  final.]— See  Harston  v. 
Harvey,  post,  coL.  480. 

When  Sealing  Contract  is  Heoessary.]— ^ 
Corporation— Health— School. 


6.  STATUTE    OF    FRAUDS, 
a.  Suffloiency  of  Note  or  Memorandum. 

Contract  of  Suretyship.] — Where  the  contract 
between  a  creditor,  debtor  and  surety  is  con- 
tained in  a  bill  of  exchange,  in  an  action  by  the 
creditor  against  the  surety  on  the  bill  no  other 
evidence  save  the  bill  is  required  to  satisfy  the 
Statute  of  Frauds,  if  the  obligation  appearing  on 
the  face  of  the  bill  is  the  precise  obligation  the 
surety  has  agreed  to  undertake.  Holmes  v. 
Durhee,  1  C.  &  E.  23— Williams,  J. 

Omission  of  Terms  of  Agreement.]— Where  a 
broker  employed  by  the  seller  alone,  effects  a 
contract  by  means  of  a  note  sent  to  and  accepted 
by  the  purchaser,  a  variation  between  this  note 
and  a  note  sent  by  the  broker  to  the  seller  is  im- 
material. Letters  not  containing  any  reference 
to  the  quality  or  the  time  for  payment  of  goods 
sold  as  agreed  upon,  do  not  constitute  a  sufficient 
memorandum  of  a  contract  to  satisfy  the  Statute 
of  Frauds.  MeCaull  v.  Straws,  1  C.  &  E.  10*- 
Stephen,  J. 

Letter  cancelling  Contract.]— A  letter  signed 
by  the  defendant  cancelling  a  contract,  and 
referring  to  an  enclosed  invoice  which  contained 
all  the  terms  of  the  contract,  is  a  sufficient  note 
or  memorandum  within  the  17th  section  of  the 


469 


CONTRACT — Formation  and  Construction. 


470 


Statute  of  Frauds.    Elliott  v.  Bean,  1  C.  k  E. 
Stt-A.  L.  Smith,  J.    Affirmed  in  C.  A. 

What  Amounts  to  Acceptance  of  Offer.] — See 
Hdnten  v.  Harvey,  poet,  coL  480. 

Conditional    Acceptance.]  —  See    White   v. 
MeMahen,  infra. 


for  Lease  —  Commencement  of 
.] — A  lessee,  D.,  wrote  to  his  landlord's 
agents,  asking  for  an  extension  of  his  term  for 
twenty-one  years  from  the  termination  of  his 
present  lease,  and  offering  a  premium.  The 
landlord  wrote  to  his  agents  declining  D.'s  offer, 
bat  adding,  "  As  the  lease  will  not  ran  oat  for 
the  next  two  years,  I  think  there  is  plenty  of 
time  to  think  over  the  matter.  However,  if  Mr. 
D.  is  very  urgent,  I  will  consent  to  grant  him  a 
lease  for  twenty-one  years  at  60/.  a  year,  and  a 
premium  of  100/."  The  latter  part  of  the  letter 
was  communicated  to  D.,  who  accepted  the 
offer :— -Held,  that  D.  was  entitled  to  a  lease  for 
twenty-one  years  at  a  rent  of  50Z.  a  year,  and  a 
premium  of  100/.,  commencing  from  the  expira- 
tion of  his  existing  lease.  Wood  v.  Aylward,  58 
L  T.  662— C.  A.  Reversing  51  J.  P.  724— 
Kekewich,  J. 

An  agreement  in  writing  between  A.  and  B., 
that  on  paying  20Z.  B.  was  to  get  possession  of  a 
farm  of  land,  and  also  a  lease  for  twenty-one 
years,  at  the  yearly  rent  of  16Z.  a  year ;  and  that 
BfOn  giving  up  possession  at  the  end  of  twenty- 
one  years,  having  done  no  injury,  was  to  get  his 
money  returned  : — Held,  to  constitute  a  valid 
agreement  for  an  executory  demise  for  twenty- 
one  years  from  the  date  of  the  payment  of  the 
*W.  Ertkine  v.  Armstrong,  20  L.  R.,  Ir.  296— 
C.A. 

Where  an  agreement  in  writing  for  a  lease  for 
a  term  of  years  did  not  expressly  state  the  date 
at  which  the  term  was  to  commence,  but  con- 
tained a  reference  to  circumstances  from,  which 
men  date  could  be  clearly  ascertained : — Held, 
efficient  to  satisfy  the  Statute  of  Frauds,  and 
specific  performance  of  the  agreement  was  de- 
creed. Phelan  v.  Tedcattle,  16  L.  R.,  Ir.  169— 
V..C. 

The  plaintiff  made  a  proposal  in  writing  to  the 
defendant  as  follows :— June  7th,  1886,  to  rent 
■une  (i.e.,  licensed  house),  with  fixtures,  &c.,  at 
2J.  10*.  a  week.  This  tenancy  to  be  for  two 
years  certain.  The  plaintiff  to  have  the  option 
of  purchase  at  any  time  within  that  term,  at  a 
mm  of  1.2001.  to  give  solvent  security  in  the 
■nm  of  500/.  for  the  preservation  of  the  retail 
hcence  attached  to  said  premises,  and  for  pay- 
ment of  above  weekly  rent.  The  defendant 
accepted  the  above  proposal  in  the  following 
terms : — "  I  accept  the  within  proposal,  provided 
atr.  If.  C.  is  the  security."  An  action  being 
brought  by  the  plaintiff  to  recover  possession 
of  the  premises,  and  for  specific  performance, 
the  statement  of  claim  alleged  that  M.  C.  was 
ready  and  willing  to  become  security,  as  the 
defendant  was  aware,  and  that  the  plaintiff  went 
into  possession  of  the  premises  under  the  proposal 
and  continued  therein  until  the  defendant  re- 
tained possession.  The  defendant  pleaded  inter 
alia  the  Statute  of  Frauds  :— Held,  that  the  pro- 
posal and  acceptance  did  not  satisfy  the  require- 
ments of  the  statute,  as  no  date  was  fixed 
expressly  or  by  reference  from  which  the  term  was 
to  nm ;  also  that  the  acceptance  was  conditional,  | 


and  that  as  performance  of  the  condition  was 
not  averred,  the  documents  could  neither  con- 
stitute a  present  demise  nor  a  complete  agree- 
ment, entitling  the  plaintiff  to  specific  perform- 
ance.    White  v.  McMahon,  18  1.  R.,  Ir.  460 — 

C.  P.  D. 

Description  of  Vendor  —  ITame  of  Vendor's 
Solicitor — Solicitor  himself  the  Vendor.]— If ,  in 
a  contract  for  sale,  the  vendor  is  described,  simply 
as  "  proprietor,"  "  owner,"  "  mortgagee,"  or  the 
like,  the  description  is  sufficient  to  satisfy  the 
requirements  of  the  Statute  of  Frauds  ;  but  not 
so  if  he  is  described  as  "  vendor,"  or  "  client,"  or 
"friend"  of  a  named  agent,  or  as  "  solicitor  to 
the  vendor,"  even  where  the  solicitor  is  himself 
the  vendor  and  is  described  in  the  contract  as 
"A.  B.,  solicitor  to  the  vendor."  Jarrett  v. 
Hunter,  84  Oh.  D.  182  ;  66  L.  J.,  Ch.  141  ;  56  L. 
T.  727  ;  35  W.  R.  132  ;  61  J.  P.  166— Kay,  J. 

Semble,  a  mere  reference  in  a  condition  of 
sale  to  a  conveyance  or  other  document  of  title 
relating  to  the  property,  the  name  or  description 
of  the  vendor  not  being  stated  in  the  condition,, 
is  not  sufficient  to  import  its  contents  into  the 
contract  so  as  to  satisfy  the  requirements  of  the 
Statute  of  Frauds,  even  if  such  conveyance  or 
other  document  does  show  who  is  the  vendor. 
A  contract,  which  under  the  Statute  of  Frauds 
is  invalid  through  not  naming  or  sufficiently 
describing  the  vendor,  is  not  rendered  valid  by 
the  fact  that  the  purchaser  knew,  at  the  time  he 
entered  into  the  contract,  who  the  vendor  was. 

Land  indefinite — Land  belonging  to  Another 
— Agency.] — A  proposal  had  been  made  that  the 
two  plaintiffs  should  buy  a  triangular  field  of 
about  three  acres,  and  that  the  defendant  should 
buy  half  an  acre  of  it  from  them.  One  of  the 
plaintiffs  and  the  defendant  met  on  the  field ; 
the  defendant  wished  to  have  a  piece  in  one  of 
the  angles,  and  the  plaintiff  stepped  so  as  to 
mark  out  where  a  base  line  would  cutoff  half  an 
acre.  Some  days  afterwards  the  same  plaintiff 
wrote  to  the  defendant  asking  her  to  let  them 
have  a  letter  agreeing  to  purchase  the  half  acre 
she  had  selected  for  350Z.  She  wrote  back,  not 
expressly  referring  to  the  other  letter,  that  she 
was  willing  to  take  half  an  acre  of  the  land  aa 
agreed  upon  for  860Z.  The  plaintiffs  did  not 
obtain  a  contract  with  the  owner  of  the  land  for 
the  purchase  until  the  4th  of  November,  which 
was  three  months  afterwards.  On  the  13th  of 
November  the  defendant  threatened  to  withdraw r 
and  on  the  20th  of  November  her  solicitors  wrote 
that  she  did  withdraw  from  the  contract : — 
Held,  that  the  small  element  of  uncertainty  in 
the  measurement  of  the  land  might  be  disre- 
garded, and  that  the  parties  must  be  considered 
as  having  determined  the  exact  piece  of  land  to 
be  taken ;  that  the  second  letter  contained  a 
sufficient  reference  to  the  first ;  and  that  the  two 
letters  formed  a  valid  contract  within  the  Statute 
of  Frauds,  and  that,  though  the  two  plaintiffs 
were  the  purchasers  of  the  land,  and  the  letters 
forming  the  contract  passed  between  the  defen- 
dant and  one  only  of  the  plaintiffs,  he  must 
under  the  circumstances  be  considered  as  agent 
for  the  other  as  well.     Wylson  v.  Dunn,  34  Ch. 

D.  669  ;  56  L.  J.,  Ch.  865  ;  56  L.  T.  192  ;  35  W. 
R.  405  ;  51  J.  P.  452— Kekewich,  J. 

Connected  Documents — Previous  Parol  Ooiu 


471 


CONTRACT — Formation  and  Construction. 


472 


tract] — Two  or  more  documents  which  do  not 
refer  to  each  other,  but  do  refer  to  the  same  parol 
contract,  and  which,  when  taken  together,  con- 
tain all  the  terms  of  the  parol  contract,  may 
together  constitute  a  sufficient  memorandum 
within  the  Statute  of  Frauds.  On  the  22nd  of 
September,  1882,  the  defendant  verbally  agreed 
with  the  plaintiff  to  sell  him  her  share  in  certain 
property,  for  2002.,  and  signed  and  gave  to  him 
the  following  receipt :  "  Sept.  22nd,  1882.  Re- 
ceived  of  J.  Studds  one  pound  of  my  share  in  the 
Barrett's  Grove  property  the  sum  of  two  hun- 
dred pounds."  No  time  was  fixed  for  completion, 
and  no  abstract  was  delivered,  and  on  the  19th  of 
March,  1883,  the  defendant  wrote  to  plaintiff  : 
•«  Mr.  8tudds,— Sir,— If  the  balance  of  1992.  on 
account  of  the  purchase  of  my  share  of  the  pro- 
perty be  not  paid  on  or  before  the  22nd  instant  I 
shall  consider  the  agreement  (made  22nd  of  Sept., 
1882)  not  any  longer  binding" : — Held,  that  the 
word  "balance"  in  the  letter  sufficiently  re- 
ferred to  the  receipt  to  enable  the  two  documents 
to  be  read  together,  and  that  they  constituted  a 
sufficient  memorandum  within  the  Statute  of 
Frauds,  s.  4.  Studds  v.  Walton,  28  Ch.  D.  305  ; 
54  L.  J.,  Ch.  626  ;  62  L.  T.  129  ;  33  W.  R.  118 — 
North,  J. 

Held,  also,  that  even  if  the  word  "  balance  " 
was  not  sufficient  to  connect  the  two  documents, 
yet  that,  as  they  both  referred  to  the  same  parol 
contract,  all  the  terms  of  which  were  contained 
in  one  or  other  of  them,  they  could  be  read 
together,  and  together  constituted  a  good  memo- 
randum within  the  statute.    lb. 

Reference  to  and  Incorporation  of  Documents.] 
— The  defendant  entered  into  a  verbal  agreement 
with  the  plaintiff  to  grant  him  the  lease  of  a 
house  for  a  term  of  years.  A  draft  for  the  pro- 
posed lease  was  furnished  by  the  plaintiff's 
solicitor  to  the  defendant's  solicitors,  and  re- 
turned by  them  approved  of  on  behalf  of  the 
defendant.  The  defendant  subsequently  wrote 
a  letter  to  the  plaintiff  complaining  that  the 
lease  had  not  been  engrossed.  Upon  the  defen- 
dant declining  to  carry  out  the  agreement,  the 
plaintiff  applied  for  a  decree  for  specific  perform- 
ance : — Held,  that  the  letter  contained  a  sufficient 
reference  to  the  draft  of  the  lease  to  admit  parol 
evidence  to  show  that  there  was  such  a  draft,  and 
thus  to  connect  the  draft  with  the  letter  signed 
by  the  defendant ;  and  that  these  papers  so  con- 
nected constituted  a  sufficient  writing  to  satisfy 
the  requirements  of  the  Statute  of  Frauds. 
Craig  v.  Elliott,  16  L.  R.,  Ir.  257— V.-C.  See 
also  Wylson  v.  Dunn,  supra. 

Correspondence  referring  to  Formal  Contract 
— Duly  authorised  Agent.] — An  action  was 
brought  by  vendors  for  specific  performance. 
The  following  telegram  had  been  signed  and 
sent  by  the  purchaser's  solicitor  to  the  vendor's 
solicitor.  "  Mr.  H.  will  purchase  Stonyrood  at 
the  sum  named  to  me  as  owing  to  the  mortgagees. 
Will  write  to-night."  A  telegram  in  reply  was 
sent  by  the  vendor's  solicitor  as  follows,  "  Tele- 
gram with  offer  received,  which  1  accept  as 
solicitor  to  the  second  mortgagees."  The  pur- 
chaser's solicitor  then  wrote  to  the  vendor's 
solicitor  thus  :  "  I  am  in  receipt  of  your  telegram 
accepting  Mr.  H.'s  offer.  If  I  recollect  rightly 
the  amount  was  some  1,6782.  Send  me  the 
contract,  and  I  will  get  it  signed."  It  was 
admitted  by  the  purchaser  that  his  solicitor  was 


his  agent,  duly  authorized  on  his  behalf  to  send 
the  telegram.  Beyond  this  there  was  no  dis- 
tinct evidence  of  agency : — Held,  that  there 
was  no  sufficient  note  or  memorandum  in  writing 
to  satisfy  s.  4  of  the  Statute  of  Frauds ;  that 
it  could  not  be  inferred  that  the  purchaser's 
solicitor  was  his  agent  to  write  the  letter ;  but 
even  if  this  could  be  inferred,  the  words  "send 
me  the  contract,"  &c.  showed  that  it  was  not 
the  intention  of  the  parties  that  the  letter 
should  constitute  a  contract  between  them. 
Goodall  v.  Harding,  62  L.  T.  126— Kay,  J. 


b.  Sale  of  Goods. 

Picture  to  be  Painted.] — A  contract  by  an 
artist  with  a  picture-dealer  to  paint  a  pictore 
of  a  given  subject  at  an  agreed  price,  is  a  contract 
for  the  sale  of  a  chattel.  Isaacs  v.  Hardy,  1 
C.  k  E.  287— Mathew,  J. 

Receipt  and  Aeceptanoo.] — Where  goods  of 
the  value  of  10/.  or  upwards  are  sold  by  a  verbal 
contract  and  delivered,  and  the  purchaser  retains 
them,  and  deals  with  them  in  such  a  way  as  to 
prove  that  he  admits  the  existence  of  a  contract, 
and  admits  that  the  goods  were  delivered  under 
the  contract,  this  is  a  sufficient  acceptance  to 
satisfy  s.  17  of  the  Statute  of  Frauds,  although 
the  purchaser  afterwards  rejects  the  goods  on 
the  ground  that  they  are  not  equal  to  sample, 
and  if  the  goods  prove  equal  to  sample  the 
purchaser  is  liable.  Page  v.  Morgan,  16  Q.  B.  D. 
228  ;  64  L.  J.,Q.B.434  ;  63  L.  T.  126  ;  33  W.B. 
793— C.  A. 

Entry  in  Auctioneer's  Book — Bill  of  Sale.]— 
Where  a  contract  for  sale  of  goods  within  &.  17 
of  the  Statute  of  Frauds  is  valid  solely  by  virtue 
of  a  memorandum  in  writing,  such  memorandum 
is  an  assurance  of  personal  chattels  within  the 
Bills  of  Sale  Act,  1878.  Roberts,  In  re,  Boons 
v.  Roberts,  36  Ch.  D.  196  ;  56  L.  J.,  Ch.  962 ;  67 
L.  T.  79  ;  36  W.  R.  684  ;  61  J.  P.  767— Kay,  J. 

Earnest,  what  is.] — See  Howe  v.  Smith,  27 
Ch.  D.  89  ;  63  L.  J.,  Ch.  1066  ;  50  L.  T.  573  ;  32 
W.  R.  802  ;  48  J.  P.  773— Per  Fry,  L.  J. 


o.  Interest  in  Land. 

Advance  of  Money  on  Security.] — An  agree- 
ment to  advance  money  on  the  security  of  land 
is  an  agreement  which  requires  to  be  in  writing 
by  8.  4  of  the  Statute  of  Frauds.  Mounsey  v. 
Rankin,  1  C.  &  E.  496— Wills,  J. 

Sale  of  Building  Materials.]— A  contract  for 
the  sale  of  building  materials  to  be  taken  down 
and  removed  by  the  purchaser  is  a  contract  for 
the  sale  of  an  interest  in  land  within  8.  4  of  the 
Statute  of  Frauds.  Marshall  v.  Green  (1 
C.  P.  D.  35)  discussed  and  distinguished  on  this 
point.  Lavery  v.  Purssell,  39  Ch.  D.  506 ;  57 
L.  J.,  Ch.  570 ;  68  L.  T.  846 ;  37  W.  R.  163— 
Chitty,  J. 

d.  Agreement  in  Consideration  of 


What  is.]— P.  V.,  shortly  before  his  marriage 
with  the  plaintiff,  wrote  her  a  letter,  in  which 


473 


CONTRACT — Formation  and  Construction. 


474 


occurred  the  following  passage  :  "  And  now,  my 
dearest  Lizzie,  as  life  is  very  uncertain  at  my 
time  of  life,  and  as  yon  are  of  all  the  world  the 
person  I  lore  best,  I  hereby  will  and  bequeath 
to  you,  after  my  death,  the  eight  cottages  in 
reckham's-Walk,  occupied  by  Charles  Warren 
and  Edward  Neath  and  others.    You  will  keep 
this  letter  as  a  proof  of  my  intention,  in  case  of 
in j  sodden  change  occurring  to  me,  rendering 
me  incapable  of,  or  not  in  a  state  of  mind  fit  for, 
the  performance  of  so  important  a  document,  and 
making  null  and  void  any  former  will  and  bequest 
I  may  have  made  previously.    I  am  doing  this, 
bt  dearest,  as  a  temporary  provision  for  you  in 
ease  of  any  emergency   ...    I  am  your  future 
husband  in  its  most  holy  sense. — P.V."   Another 
part  of  the  will  contained  a  reference  to  the 
wedding-ring,  of  which  the  plaintiff  then  ap- 
parently had  the  custody.    After  the  marriage 
P.  Y.  died,  leaving  a  will  whereof  the  defendants 
were  executors  and  trustees.    By  this  will  the 
eight  cottages  were  not  left  to  the  plaintiff.    The 
plaintiff  claimed  a  declaration  that  P.  V.  duly 
contracted  with  her  to  leave  to  or  settle  upon  her 
the  eight  cottages,  and  that  by  virtue  of  the 
tetter  the  plaintiff  was  entitled  to  them  in  equity. 
The  court  held  that  the  letter  did  not  satisfy  the 
requirements  of  the  Statute  of   Frauds  with 
respect  to  a  memorandum,  either  as  to  the  state- 
ment of  consideration  or  a  promise  : — Held,  on 
appeal,  that  no  contract  had  been  intended,  that 
the  writer  had  mistakenly  thought  that  he  was 
making  a  gift,  and  that  the  judgment  must  be 
affirmed.      Vincent  v.  Vincent,  56  L.  T.  243— 
C.A. 

Part  Performance.]— &i  infra. 


e.  Hot  to  be  Performed  within  a  Tear. 

Agreement  tor  Maintenance  of  Wife.]  —  A 
husband  and  wife  having  taken  out  cross- 
summonses  against  each  other  for  assaults, 
entered  into  an  oral  agreement  with  each  other 
to  withdraw  the  summonses  and  to  live  apart, 
the  husband  agreeing  to  allow  the  wife  a  weekly 
asm  for  maintenance,  and  the  wife  agreeing  to 
maintain  herself  and  her  children  and  to  indem- 
nify the  husband  against  any  debts  contracted 
by  her.  An  action  having  been  brought  in  the 
county  court  by  the  wife  against  the  husband  for 
nx  weeks'  arrears  of  maintenance  under  the 
agreement : — Held,  that  the  agreement  was  not 
an  agreement  "  not  to  be  performed  within  one 
year w  within  the  4th  section  of  the  Statute  of 
brands,  and,  therefore,  need  not  be  in  writing. 
D*rry  v.  Shannon  (4  Ex.  D.  81)  not  followed. 
MeGreyor  r.  McGregor,  21  Q.  B.  D.  424;  57 
L  J.,  Q.  B.  591  ;  37  W.  R.  45 ;  52  J.  P.  77£— 
C.A.    Affirming  58  L.  T.  227— D. 

9  When  Performance  by  one  Party  possible.]— 
Where  by  the  terms  of  a  contract  one  party  can 
perform  his  part  of  it  within  a  year,  a  subsequent 
request  by  the  other  party  that  such  performance 
»Wd  be  postponed  till  after  a  year  does  not 
faring  the  case  within  s.  4  of  the  Statute  of 
toads,  although  such  request  be  acceded  to. 
Betan  v.  Carr,  1  C.  &  B.  499— Wills,  J. 

Pnssits)  to  Subscribe  —  Instalments.]  —  A. 
verbally  promised  to  give  20,0002.  to  the  Jubilee 
Fond  of  the  Congregational  Union,  and  also 
IQed  up  and  signed  a  blank  form  of  promise, 


not  addressed  to  any  one,  but  headed  "  Congre- 
gational Union  of  England  and  Wales — Jubilee 
Fund,"  whereby  he  promised  to  give  20,000/.,  in 
five  equal  annual  instalments  of  4,0002.  each,  for 
liquidation  of  chapel  debts.  A.  paid  12,0002.  to 
the  fund  within  three  years  after  giving  the 
promise,  and  then  died,  leaving  the  last  two 
instalments  of  4,0002.  each  unpaid  and  unpro- 
vided for : — Held,  that  there  was  no  enforceable 
contract,  on  the  ground  that  there  was  no  suffi- 
cient memorandum  in  writing  to  satisfy  the 
Statute  of  Frauds.  Hudson,  In  re.  Creed  v. 
Henderson,  54  L.  J.,  Ch.  811 ;  33  W.  R.  819— 
Pearson,  J. 

Agreement  to  Abandon  Proceedings — Defence 
to  Action.  ] — An  agreement  to  abandon  threatened 
proceedings  which  might  otherwise  be  brought 
at  any  time  within  six  years,  is,  if  followed  in 
fact  by  an  abstention  from  proceedings,  a  con- 
tract which  is  performed  by  one  of  the  parties 
within  one  year,  and  consequently  is  not  such  a 
contract  as  is  required  by  s.  4  of  the  Statute  of 
Frauds  to  be  in  writing.  That  section  does  not 
require  that  an  agreement  which  is  set  up  as  a 
defence  to  an  action  should  be  in  writing.  Mile* 
v.  New  Zealand  Alford  Estate  Company,  32  Ch. 
D.  266  ;  54  L.  J.,  Ch.  1036  ;  53  L.  T.  219  ;  34 
W.  R.  669— North,  J. 


f.  Part  Performavnoe. 

When  applicable — Easement.] — The  equitable 
doctrine  of  part  performance  has  not  been  con- 
fined to  contracts  for  an  acquisition  of  an  inte- 
rest in  land.  Probably  it  applies  to  all  cases  in 
which  the  court  would  entertain  a  suit  for 
specific  performance  if  the  contract  had  been  in 
writing.  A  verbal  agreement  for  an  easement 
may  be  enforced  where  there  has  been  part  per- 
formance, whether  it  is  or  is  not  within  the  4th 
section  of  the  Statute  of  Frauds.  And  semble 
it  is  within  the  section.  Britain  v.  Rossiter 
(11  Q.  B.  D.  123)  discussed.  McManus  v.  Cooke, 
35  Ch.  D.  681  ;  56  L.  J.,  Ch.  662  ;  56  L.  T.  900  ; 
35  W.  R.  754  ;  51  J.  P.  708— Kay,  J. 

Agreement  in  Consideration  of  Marriage.] 


— A  parol  agreement  before  marriage  that  money 
of  the  intended  wife  at  the  bank  shall  be  hers 
for  her  separate  use,  followed  by  the  wife  deal- 
ing with  it  with  the  husband's  knowledge,  and 
the  husband  not  interfering  : — Held  to  amount 
fo  a  gift  to  the  wife  for  her  separate  use.  Routh, 
Ex  parte,  Whitehead,  In  re,  or  Whitehead,  Ex 
parte.  14  Q.  B.  D.  419 ;  54  L.  J.,  Q.  B.  240  ;  52 
L.  T.  597  ;  33  W.  R.  471  ;  49  J.  P.  406— C.  A. 

What  sufficient.] — The  making  of  alterations 
in  premises  by  the  intended  landlord  under  a 
verbal  agreement  to  let : — Held,  not  to  be  a  part 
performance,  taking  the  case  out  of  the  Statute 
of  Frauds.  Whittick  v.  Mozley,  1  C.  &  E.  86— 
Field,  J. 

M.,  a  tenant  of  L.,  was  offered  a  lease  of  cer- 
tain lands,  and  a  written  agreement  was  produced 
for  a  term  of  thirty-one  years,  at  382.  rent,  and 
tendered  to  her  for  signature.  M.  objected  to 
382.  as  a  mistake  for  332.  Whereupon  L.'b  agent 
said  that  M.  should  have  the  farm  for  332.,  and 
wrote  a  memorandum  upon  the  agreement  that 
M.  said  her  rent  was  332.  M.  then  signed  the 
agreement.  She  paid  the  332.  and  continued  in 
possession  for  six  years,  when  L.  commenced  an 


1 


475 


CONTRACT— Parties  to  Hie  Contract. 


476 


action  to  enforce  specific  performance  of  the 
agreement  at  the  rent  of  33/. : — Held,  that  there 
was  a  complete  agreement,  partly  written  and 
partly  verbal,  for  a  lease  at  the  rent  of  332. ;  and 
that  the  circumstance  of  M.  being  permitted  to 
continue  in  possession  after  the  expiration  of  her 
lease,  and  the  payment  of  rent  by  her  at  the 
agreed  amount,  constituted  part  performance 
sufficient  to  take  the  case  out  of  the  Statute  of 
Frauds,  and  to  entitle  L.  to  a  decree  for  specific 
performance.  Lanyon  v.  Martin,  13  L.  R.,  Ir. 
297— Flanagan,  J. 

The  banjcrupt,  being  indebted  to  a  banking 
company,  made  an  oral  promise  to  the  directors 
to  give  them,  when  required,  security  for  the 
debt.  He  was  then  entitled  to  a  reversionary 
interest  in  one-fifth  of  a  farm,  to  come  into  pos- 
session on  the  death  of  his  mother,  who  was 
tenant  for  life,  and  who  held  the  title-deeds. 
The  mother  afterwards  died,  and  the  title-deeds 
came  into  the  possession  of  the  respondent,  who 
was  manager  of  the  bank,  and  who  was  also 
entitled  to  one-fifth  of  the  property.  The  re- 
spondent told  the  bankrupt  that  he  had  posses- 
sion of  the  deeds,  and  that  he  held  his  (the 
bankrupt's)  one-fifth  for  the  bank.  The  bank- 
rupt expressed  his  assent : — Held,  that  the  com- 
pany had  not  a  valid  equitable  mortgage  of  the 
bankrupt's  share  in  the  farm,  for  there  was  no 
memorandum  in  writing  to  satisfy  the  Statute 
of  Frauds,  and  the  conversation  which  took  place 
between  the  bankrupt  and  the  respondent  as  to 
the  custody  of  the  deeds,  not  being  followed  by 
any  act  which  altered  the  legal  position  of  the 
parties,  was  not  such  a  part  performance  of  the 
oral  promise  to  give  security  as  would  exclude 
the  operation  of  the  statute.  Broderick,  Ex 
parte,  Beet  ham,  In  re,  18  Q.  B.  D.  766  ;  56  L.  J., 
Q.  B.  635  ;  36  W.  R.  613— C.  A. 

II.    PASTIES  TO  THE   COFTRACT. 

Bight  of  Third  Party  to  sue.] — A  provision  in 
an  act  of  parliament  may  enable  an  outsider  to 
sue.  There  is  in  such  cases  a  statutory  obliga- 
tion, of  which  the  person  named  can  take  the 
benefit — an  action  tor  debt  on  a  Btatute  being  a 
well-known  old  form  of  action  at  common  law  ; 
but  an  agreement  between  A.  and  B.  that  B. 
shall  pay  C.  gives  C.  no  right  of  action  against 
B.  I  cannot  see  that  there  is  in  such  a  case  any 
difference  between  equity  and  common  law ;  it 
is  a  mere  question  of  contract.  Rotherham  Alum 
and  Chemical  Company,  In  re,  25  Ch.  D.  Ill  ; 
63  L.  J.,  Ch.  290 ;  60  L.  T.  219  ;  32  W.  R.  131— 
per  Lindley,  L.  J. 

To  entitle  a  third  person  not  named  as  party 
to  a  contract  to  sue  either  of  the  contracting 
parties,  that  third  person  must  possess  an  actual 
beneficial  right  which  places  him  in  the  position 
of  cestui  que  trust  under  the  contract.  Gaudy 
v.  Gandy,  30  Ch.  D.  57  ;  54  L.  J.,  Oh.  1154  ;  53 
L.  T.  306  ;  33  W.  R.  803— C.  A. 

Action  by  Members  of  Committee  of  Church 
Fund  against  others.] — An  action  was  brought 
by  five  of  the  members  of  a  church  building 
committee  on  behalf  of  themselves  and  the  other 
members  of  the  committee,  against  a  former 
member,  claiming  an  account  of  all  moneys 
received  and  paid  by  him  in  respect  of  the  church 
building  fund  during  the  period  of  his  member- 
ship. The  fund  was  raised  by  voluntary  contri- 
butions; seventeen  persons  having  constituted 


themselves  into  a  committee  to  receive  snbscrip* 
tions  for  the  purpose  of  improving  the  parish 
church  and  to  apply  the  moneys  thus  collected : 
— Held,  that  the  members  of  the  committee 
being  mere  agents  of  the  subscribers,  the  action 
could  not  be  maintained  by  some  of  the  agents 
against  the  others.  Strickland  v.  Welion,  28 
Ch.  D.  426  ;  54  L.  J.,  Ch.  452  ;  52  L.  T.  247 ;  S3 
W.  R.  545— Pearson,  J. 

Infants.  ] — See  Infaot. 

Ratification— Illegality  of  the  Transaction— 
Absenee  of  full  Knowledge.] — Acquiescence  and 
ratification  must  be  founded  on  a  full  knowledge 
of  the  facts,  and  further,  it  must  be  in  relation 
to  a  transaction  to  which  effect  may  be  given 
thereby.  Banqve  Jacques- Cartier  v.  Banqw 
d'Epargne,  13  App.  Cas.  Ill ;  57  L.  J.,  P.  C.  42 
—P.  C. 

Where  the  accounts  of  a  bank  in  liquidation 
had  been  changed  so  as  to  represent  the  bank  as 
a  debtor  in  respect  of  a  sum  which  had  been 
borrowed  by  its  manager  for  his  own  purposes : 
— Held,  that  the  doctrine  of  acquiescence  and 
ratification  by  the  liquidating  authorities  would 
not  avail  to  render  the  bank  liable  to  pay  a  debt 
which  it  never  owed.    lb. 


Contract  with  projected  Company.]— See 


ante,  col.  402. 

By  Company  of  Acts  of  Directors.  ]-~£tf 

Blackburn,  £c,  Building  Society  v.  Brooks,  ante, 
coL  269,  and  Grimwade  v.  Mutual  Society,  vote, 
col.  360. 


IH. 


MATTER  07  C0KTRACT8. 
1.  CONDITION& 


Precedent — What  amounts  to.]  —Where  an 
action  was  compromised  upon  terms,  one  of 
which  was  that  the  defendant  should  pay  the 
plaintiff  150Z.,  and  another  that  the  plaintif 
should  pay  a  third  party's  claim  against  the 
defendant : — Held,  that  the  payment  of  the 
third  party's  claim  by  the  plaintiff  was  not  a 
condition  precedent  to  the  plaintiff's  right  to 
sue  for  the  1502.  Lockhart  v.  Webtter,  1 C  fc 
E.  71— A.  L.  Smith,  J. 

Monthly  Deliveries — Yon-payment  fir 


one  Delivery.] — The  respondents  bought  from 
the  appellant  company  5,000  tons  of  steel  of  the 
company's  make,  to  be  delivered  1,000  tons 
monthly,  commencing  January,  1881,  payment 
within  three  days  after  receipt  of  shipping 
documents.  In  January  the  company  delivered 
part  only  of  that  month's  instalments,  and  in 
the  beginning  of  February  made  a  further  de- 
livery. On  the  2nd  February,  shortly  before 
payment  for  these  deliveries  became  due,  s 
petition  was  presented  to  wind  up  the  company. 
The  respondents,  bona  fide,  under  the  erroneous 
advice  of  their  solicitor  that  they  could  not, 
without  leave  of  the  court,  safely  pay  pending 
the  petition,  objected  to  make  the  payments  then 
due  unless  the  company  obtained  the  sanction  of 
the  court,  which  they  asked  the  company  to  ob- 
tain. On  the  10th  February  the  company  in- 
formed the  respondents  that  they  should  consider 
the  refusal  to  pay  as  a  breach  of  contract,  re- 
leasing the  company  from  any  further  obliga- 
tions.   On  the  15th  February  an  order  was  made 


477 


CONTRACT— The  Matter  of  Contract*. 


478 


to  wind  up  the  company  by  the  court  A  corre- 
spondence ensued  between  the  respondents  and 
the  liquidator,  in  which  the  respondents  claimed 
daiaiges  for  failure  to  deliver  the  January  in- 
stalment, and  a  right  to  deduct  those  damages 
from  any  payments  then  due ;  and  said  that 
they  always  had  been  and  still  were  ready  to 
accept  such  deliveries  and  make  such  payments 
as  ought  to  be  accepted  and  made  under  the 
contract,  subject  to  the  right  of  set-off.  The 
liquidator  made  no  further  deliveries,  and 
brought  an  action  in  the  name  of  the  company 
for  the  price  of  the  steel  delivered.  The  respon- 
dents counter-claimed  for  damages  for  breaches 
of  contract  for  non-delivery  : — Held,  that,  upon 
the  true  construction  of  the  contract,  payment 
for  a  previous  delivery  was  not  a  condition  pre- 
cedent to  the  right  to  claim  the  next  delivery  ; 
that  the  respondents  had  not,  by  postponing 
payment  under  erroneous  advice,  acted  so  as  to 
shew  an  intention  to  repudiate  the  contract,  or 
so  as  to  release  the  company  from  further  per- 
formance. Mersey  Steel  and  Iron  Company  v. 
Aajrfcr,  9  App.  (V  434  ;  53  L.  J.,  Q.  B.  497  ; 
51  L.  T.  637 ;  32  W.  R.  989— H.  L.  (B.). 

Inchoate  Agreement  —  Building  Agree- 
ment]—The  Metropolitan  Board  of  Works,  the 
owners  in  fee  of  two  adjoining  pieces  of  land, 
agreed  with  X.  to  grant  him  a  lease  of  one  plot 
on  his  erecting  on  the  land  a  building  according 
to  certain  plans  to  be  approved  by  the  board. 
The  board  entered  into  a  similar  agreement  with 
W.as  to  the  other  plot  X.  then  agreed  with  W. 
for  a  sublease  of  the  first  plot  on  similar  terms. 
W.  subsequently  entered  into  two  agreements 
with  a  company  (formed  for  the  purpose  of 
erecting  an  notel)  by  each  of  which  he  con- 
tacted to  grant  them  a  sublease  of  one  of  the 
two  plots  on  the  completion  of  a  building  ac- 
cording to  the  terms  of  the  agreement.  Each 
agreement  provided  that  the  company  "shall 
before  the  30th  Oct.  1884  cover  the  ground  .  .  . 
with  a  substantial  building  or  part  of  a  sub- 
stantial building  of  such  class,  size,  form,  eleva- 
tion, scc^  and  general  character  as  shall  be 
approved  by  the  board  or  their  superintending 
architect  on  their  behalf,  before  the  erection  of 
such  building  is  commenced."  Another  clause 
provided  that  the  company  should  forthwith 
submit  for  the  approval  of  the  board  plans  of 
the  building  to  be  built  by  the  company,  and 
submit  to  amy  modifications  required  by  the 
board.  Another  clause  provided  that  "  no 
building  aball  be  commenced  before  the  said 
plans,  Ac-,  shall  have  been  approved  by  the 
board  as  aforesaid."  The  plans  were  duly  sub- 
mitted to  the  board,  which  was  satisfied  with 
them,  but  declined  to  grant  separate  leases  of 
the  two  plots  if  one  entire  building  was  erected 
over  both,  and  required  that  the  title  to  both 
leases  should  be  vested  in  one  and  the  same 
penon.  W.  endeavoured  to  arrange  this,  but 
oiled.  The  company  having  gone  into  liquida- 
tion, the  building  not  being  completed,  W. 
danmed  to  be  admitted  as  a  creditor  of  the 
company  in  respect  of  damages  for  the  alleged 
breach  of  the  agreement : — Held,  by  Chitty,  J., 
that  the  approval  of  the  board  was  a  condition 
precedent  to  the  agreement  to  build,  that  the 
performance  of  the  conditions  had  not  been 
waived,  and  that  the  company  were  not  liable  : 
—Held,  on  appeal,  that  there  was  no  condition 
but  an   agreement  to   erect  such 


particular  kind  of  building  as  the  board  should 
have  approved,  and  that,  the  board  not  having 
approved  of  any  particular  kind  of  building, 
there  was  nothing  capable  of  performance,  and 
therefore  the  company  had  committed  no  breach 
of  the  agreement.  Northumberland  Avenue 
Hotel  Company,  In  re.  Fox's  claim,  56  L.  T. 
833— C.  A. 


TION. 


When  Arbitration  is.]  —  See  Abbitba- 


Dependent  Conditions.] — Where  an  agreement 
specified  that  advertisements  should  be  inserted 
to  the  value  of  902.  in  part  payment  of  goods  to 
be  purchased  to  the  amount  of  360/.: — Held, 
that  the  plaintiff  was  not  entitled  to  recover  in 
respect  of  the  901.  worth  of  advertisements 
without  taking  the  3602.  worth  of  goods.  Min- 
shull  v.  Brinsmead,  1  0.  &  B.  97— Day,  J. 


2.  CONSIDERATION. 

Any  Loss  or  Benefit.]— Any  benefit  to  the 
assignee  of  a  contract  or  any  loss  to  the  assignor 
is  a  valuable  consideration,  and  therefore  the 
sale  of  an  alleged  claim  against  a  railway 
company  for  services  rendered,  which,  though 
not  admitted,  was  not  rejected  by  them,  is 
a  sufficient  consideration  to  support  an  action 
for  the  purchase  money.  McOreevy  v.  Russell, 
56  L.  T.  501— P.  C. 

Contract  by  Creditor  to  take  less  than  Sua 

doe.] — An  agreement  between  judgment  debtor 
and  creditor  that  in  consideration  of  the  debtor 
paying  down  part  of  the  judgment  debt  and 
costs,  and  on  condition  of  his  paying  to  the 
creditor  or  his  nominee  the  residue  by  instal- 
ments, the  creditor  will  not  take  any  proceedings 
on  the  judgment  is  nudum  pactum,  being  with- 
out consideration,  and  does  not  prevent  the 
creditor  after  payment  of  the  whole  debt  and 
costs  from  proceeding  to  enforce  payment  of 
the  interest  upon  the  judgment.  PinneVs  case, 
(5  Bep.  117  a),  and  Cumber  v.  Wane  (1  Str. 
426),  followed.  Fodhes  v.  Beer,  9  App.  Cas. 
606  ;  54  L.  J.,  Q.  B.  130 ;  61  L.  T.  833  ;  33  W.  R. 
233— H.  L.  (£.).  See  also  cases  sub  tit.  ACCORD 
and  Satisfaction. 

Promise  to  give  Sum  to  Charity.]— A.  promised 
to  give  20,000/.  to  a  fund  of  the  Congregational 
Union,  and  paid  certain  instalments  of  the 
amount,  but  died  leaving  8,0002.  unpaid  and  un- 
provided for.  The  Union  claimed  that  sum  from 
A.'s  executors,  alleging  that  they  had  been  led 
by  A.  '8  promise  to  contribute  larger  sums  to 
churches  than  they  would  otherwise  have  done, 
that  money  had  been  given  and  promised  by 
other  persons  in  consideration  of  A*'s  promise, 
and  that  the  committee  of  the  Union  had  in- 
curred liabilities  in  consequence  of  A.'s  promise  : 
— Held,  that,  the  promise  was  without  considera- 
tion. Hudson,  In  re,  Creed  v.  Henderson,  54 
L.  J.,  Ch.  811 ;  33  W.  R.  819— Pearson,  J. 

Agreement  to  enter  into  an  Agreement  with 
Third  Party.] — A-  contracts  with  B.  that  he 
will  enter  into  a  binding  agreement  with  C, 
B.'s  landlord,  for  a  lease  at  a  given  rent  for 
such  a  term  and  upon  such  conditions  as  the 
landlord  shall  approve ;  and  B.  agrees,  upon 


1 


479 


CONTRACT— The  Matter  of  Contracts. 


480 


such  lease  being  granted,  to  surrender  his  exist- 
ing lease.  Upon  A.'s  refusal  to  perform  his 
agreement,  B.  is  entitled  to  recover  damages 
against  A.  for  breach  of  contract.  Foster  v. 
Wheeler,  38  Ch.  D.  130 ;  57  L.  J.,  Ch.  871  ;  59 
L.  T.  15  ;  37  W.  R.  40— C.  A. 

Agreement  not  to  8ue.] — In  a  petition  by 
husband  against  wife  praying  that  the  marriage 
celebrated  between  them  might  be  declared 
null  and  void  on  the  ground  of  her  incapacity, 
the  respondent  pleaded  that  she  and  the  peti- 
tioner after  a  year's  cohabitation  had  agreed 
to  live  apart,  and  had  bound  themselves  not 
to  make  any  claim  against  each  other  either 
in  a  court  of  law  or  equity  ;  and  that  if  either 
party  should  break  the  agreement  the  other 
should  be  entitled  to  an  injunction  to  restrain  such 
breach.  That  it  was  further  agreed  that  if  the  re- 
spondent committed  a  breach  of  the  agreement 
the  petitioner  should  be  entitled  to  proceed  in  this 
court  for  a  declaration  of  nullity.  Averment 
that  there  had  been  no  breach  of  the  agreement 
on  the  part  of  the  respondent : — Held,  that 
the  respondent's  agreement  not  to  sue  was  a 
sufficient  consideration  for  the  husband's  en- 
gagement to  do  the  like,  and  that  such  an 
agreement  although  not  by  deed  was  therefore 
a  bar  to  a  petition  for  declaration  of  nullity. 
Aldridge  v.  Aldridge,  or  A.  v.  M.,  13  P.  D. 
210 ;  58  L.  J.,  P.  8  ;  59  L.  T.  896  ;  37  W.  R. 
240— Hannen,  P. 

Forbearance  to  Sue.] — For  the  purpose  of 
inducing  the  plaintiff  to  give  time  to  the 
defendant's  father  for  payment  of  a  debt,  the 
defendant  signed  a  promissory  note  whereby  the 
defendant's  father  and  the  defendant  jointly 
and  severally  promised  to  pay  to  the  plaintiff 
the  amount  of  the  debt  with  interest  half-yearly 
at  the  rate  of  5  per  cent,  per  annum  until  the 
amount  was  paid.  The  plaintiff  having  forborne 
to  sue  for  several  years  : — Held,  that,  the  plain- 
tiff having  forborne  from  suing  the  defendant's 
father  at  the  defendant's  request,  there  was. a 
good  consideration  for  the  defendant's  liability 
on  the  note  although  there  was  no  contract  by 
the  plaintiff  to  forbear  from  suing.  Crears  v. 
Hunter  or  Bumyeat,  19  Q.  B.  D.  341 ;  56  L.  J., 
Q.  B.  518  ;  57  L.  T.  554  ;  35  W.  R.  821— C.  A. 

Compromise  of  Intended  Action.] — A  bona 
fide  compromise  of  a  real  claim  is  a  good  con- 
sideration, whether  the  claim  would  have  been 
successful  or  not.  Cook  v.  Wright  (1  B.  &  S. 
559) ;  Callisher  v.  Bischoffsheim  (5  L.  R.,  Q.  B. 
449) ;  and  Ockford  v.  Barelli  (20  W.  R.  116) 
approved,  and  the  observations  in  Banner,  Ex 
parte  (17  Ch.  D.  480,  490)  by  Lord  Esher, 
M.  R.,  on  the  authority  of  these  cases,  dissented 
from  by  the  Court.  Miles  v.  Neto  Zealand 
Alford  Estate  Company,  32  Ch.  D.  266  ;  55 
L.  J.,  Ch.  801  ;  54  L.  T.  582 ;  34  W.  R.  669— 
C.  A. 

A  shareholder  in  a  company  made  an  equitable 
mortgage  of  his  shares  in  favour  of  the  plaintiff 
as  security  for  an  advance,  and  the  plaintiff 
gave  the  company  notice  of  his  charge ;  after 
the  date  of  the  notice  the  shareholder  gave  a 
written  guarantee  to  the  company.  The  guar- 
antor was  not  only  a  shareholder,  but  he  was 
also  a  director  of  and  the  vendor  to,  the 
company.  The  guarantee  was  given  at  a  general 
meeting  of  the   shareholders,  after  an   angry 


discussion  had   taken   place,   but   it  did  not 
appear  that  any  resolution  was  passed  at  such 
meeting  with  reference  to  it    It  was,  that  8 
minimum  dividend  should  be  paid  to  the  share- 
holders yearly  during  ninety  years ;  and  that 
the  guarantor  should  pay  sums   sufficient  to 
make  up  that  minimum  in  every  year  in  which 
the  company  had  not  earned  it.    There  was  no 
consideration  for  the  giving  of  the  guarantee 
upon  the  face  of  the  instrument,  but  it  was 
found  by  the  court  that  it  was,  in  fact,  given  in 
consideration  of  an  agreement  come  to  at  the 
general  meeting  of  the  shareholders,  to  abandon 
proceedings  in  contemplation  against  the  guar- 
antor.   But  it  was  held,  upon  appeal  (Bowen. 
L  J.,  dissentiente),  that  there  was  no  sufficient 
evidence  of  any  intended  claim  by  the  company 
or  the  shareholders  against  the  guarantor,  or 
any  contract  binding  the  company  to  abandon 
such  claim,  and  accordingly  that  there  was  no 
consideration  to  support  the  guarantee  : — Held, 
by  Bowen,  L.J.,  that  upon  the  evidence  pro- 
ceedings had,  in  fact,  been  threatened,  and  were 
dropped  in  consequence  of  the  guarantee ;  and 
that  this  was  sufficient  consideration  to  sap- 
port  it.    lb. 

Implied  Undertaking  to  keep  Document]— 

A.  was  a  judgment  creditor  of  C. ;  B.  wrote  to 
A.  a  letter  in  the  following  terms  (so  far  as  is 
material)  :  "  If  C.  leaves  in  your  hands  the  order 
of  MessrB.  F.,  drawn  upon  Messrs.  R.,  for  260 
eight  per  cent,  preference  shares,  &c.,  I  will 
obtain,  within  one  month  from  this  date,  with 
the  sanction  of  C,  a  loan  for  him  of  1,0002.  upon 
said  order,  and  pay  that  sum  to  you  against  the 
delivery  of  sam  order."    C.  left  the  order  in 
A.'b  hands,  and  sanctioned  the  proposal  con- 
tained in  the  letter.    A.  then  wrote  to  B.  as 
follows : — "  C.  brought  me  your  letter  on  the 
27th,  and  he  has  given  me  his  written  sanction 
to  your  obtaining  the  loan  of  1,000/.  for  him 
referred  to  in  that  letter,  and  we  shall  be  glad 
to  hear  that  everything  is  in  order  " : — Held, 
that,  assuming  A.'s  letter  to  B.  to  be  a  final 
acceptance  of  the  offer  contained  in  B.'s  letter 
to  A.,  there  was  consideration  moving  from  A.t 
to  support  B.'s  promise,  such  consideration  being 
the  implied  undertaking  on  the  part  of  A.  when 
he  received  the  order  to  keep  it  till  required  for 
the  purpose  of  being  handed  over  to  the  person 
who  would  advance  the  1,000/.  on  its  security. 
But  held  also  that  A.'s  letter  to  B.  was  not  an 
acceptance  of  the  offer  contained  in  B.'s  letter 
to  A.,  and  that  the  two  letters  did  not  therefore 
constitute  a  contract.    Harston  v.  Harrey,  1  C. 
&  B.  404r-Wiils,  J. 

Sale  of  Goodwill  by  Bankrupt  and  Trustee.] 
— If  a  bankrupt  join  with  his  trustee  in  selling 
the  goodwill  and  business  previously  carried  on 
by  the  bankrupt,  and  agrees  with  the  purchaser 
not  to  carry  on  a  similar  business  within  a  pre- 
scribed district,  such  agreement  is  binding  on 
him,  for  there  is  good  consideration  for  the 
defendant's  promise  in  the  payment,  on  the  faith 
of  that  promise,  by  the  purchasers  to  the  trustee, 
and  he  can  be  restrained  from  so  doing.  Bwttm 
and  High  Peak  Company  v.  Mitchell,  1  C.  &  B. 
527— Day,  J. 

Agreement  to  Procure  Charter.]— A  ship- 
broker  agreed  with  a  shipowner  to  procure  him  av 
charter  of  a  vessel,  in  consideration  of  the  ship- 


481 


CONTRACT— The  Matter  of  Contracti. 


482 


owner  chartering  the  same  : — Held,  in  an  action 
bj  shipowner  against  shipbroker  for  breach  of 
contract,  that  there  was  a  good  consideration  for 
the  sbipbroker's  promise.  Oliddon  v.  Broderten, 
I  C.  *  K.  197— Cave,  J. 


Admissibility  of  Evidence  to  add  to  Considera- 
tisa  Expressed.] — By  an  agreement  in  writing 
6.  agreed  that  I .  should  receive  all  the  money 
that  was  then  doe,  and  which  should  become 
due  to  6.  upon  the  winding-up  of  the  Barnstaple 
Second  Annuitant  Society,  Y.  paying  to  6.  oat 
of  such  money  the  sum  of  1002.  The  considera- 
tion was  stated  to  be  u  In  consideration  of  a  sum 
of  money  this  day  paid,"  &c  : — Held,  that  evi- 
dence was  admissible  to  show  that  in  addition  to 
the  consideration  expressed  there  was  another 
consideration,  namely,  that  T.  should  vote  for 
the  winding-up  of  the  society.  Barnstaple 
Second  Annuitant  Society,  In  re,  60  L.  T.  424 
-D. 


3.  ILLEGAL  CONTRACTS, 
a.  General  Principles, 

Severance  of  Good  Part  from  the  Bad.] — 
Where  you  cannot  sever  the  illegal  from  the 
legal  part  of  a  covenant,  the  contract  is  alto- 
gether void ;  bat,  where  you  can  sever  them, 
whether  the  illegality  be  created  by  statute  or 
by  common  law,  you  may  reject  the  bad  part 
and  retain  the  good.  Byrne,  Me  parte,  Buraett, 
Js«,20 Q.  B.  D.  314  ;  57  L.  J.,  Q.  B.  263  ;  58  L.  T. 
708 ;  36  W.  R.  345  ;  5  M.  B.  R.  32— C.  A. 

The  principle  of  construction  which  guides 
the  court  in  severing  the  valid  and  rejecting  the 
iftralid  portions  of  covenants  considered.  Baker 
?.  Bedeeeoek,  39  Ch.  D.  520  ;  57  L.  J.,  Ch.  889  ; 
59  L  T.  361 ;  36  W.  R.  840— Chitty,  J. 


b.  Contrary  to  Statute. 

Serving  Unqualified  Medical  Practitioner  as 
Assistant]— The  act  55  Geo.  3,  c.  194,  prohibit- 
ing medical  practice  by  unqualified  persons,  is 
not  repealed  by  implication  by  the  Medical  Act, 
1868.  The  defendant,  a  duly  qualified  medical 
practitioner,  agreed  with  the  plaintiff,  a  medical 
practitioner  not  duly  qualified,  but  who  was 
described  in  the  agreement  as  "  medical  practi- 
tioner,** to  serve  the  plaintiff  as  assistant  in  his 
profession  as  a  medical  practitioner,  and  not  to 
practise  at  R.  within  five  years  after  the  close  of 
the  engagement.  The  plaintiff  applied  for  an 
injunction  to  prevent  the  defendant  from  prac- 
tising at  R.  in  breach  of  this  agreement : — Held, 
that  his  doing  so  was  made  illegal  by  the  act 
£5  Geo.  3,  c  194,  s.  14,  that  the  agreement  there- 
fore was  to  assist  the  plaintiff  in  carrying  on  a 
bonnets  which  he  could  not  lawfully  carry  on, 
And  that  the  agreement  was  illegal  and  could 
art  he  enforced.  Davit*  v.  Makuna,  29  Ch.  D. 
M6;  54  L.  J.,  Ch.  1148  ;  53  L.  T.  314  ;  33  W.  R. 
««8;50J.  P.  6— C.  A. 

Semble,  if  the  plaintiff  had  carried  on  his 
fastness  by  means  of  duly  qualified  assistants, 
without  personally  acting  as  a  physician,  sur- 
feon,  or  apothecary,  the  agreement  might  have 
keen  legal,    id. 

OAoor   of   Local    Authority    interested  in 


Contract] — A  contract  by  a  local  board  of 
health  made  with  two  persons,  one  of  whom  is 
the  surveyor  of  the  board  at  a  yearly  salary, 
and  who,  as  an  officer  appointed  by  the  local 
authority,  is  required  by  s.  193  of  the  Public 
Health  Act,  1875,  not  to  be  interested  in  any 
contract  made  with  the  authority,  is  illegal 
MeUis  v.  Shirley  Local  Board,  16  Q.  B.  D.  446  ; 

55  L.  J.,  Q.  B.  143  ;  53  L.  T.  810  ;  34  W.  R.  187 ; 
60  J.  P.  214— C.  A. 

Policy  on  Advances  on  Ship — "Full  interest 
admitted."] — A  policy  insuring  cash  advances 
on  a  ship  is  within  19  Geo.  2,  c.  37,  s.  1.  Such  a 
policy  containing  the  term  "full  interest  ad- 
mitted "  is  avoided  by  that  statute.  Smith  v. 
Reynolds  (1  H.  &  N.  221) ;  and  Be  Mattos  v. 
North  (3  L.  R.,  Eq.  185),  followed.  Berridge  v. 
Man  On  Insurance  Company,  18  Q.  B.  D.  346  ; 

56  L.  J.,  Q.  B.  223  ;  66  L.  T.  376  ;  36  W.  R.  343  ; 
6  Asp.  M.  C.  104— C.  A. 


o.  Gamins;  and  Wagering. 

Wagering  Policies — Action  for  Recovery  of 
Premiums.  J— J.  H.  effected  with  the  defendant 
company  two  policies  of  insurance  on  the  life  of 
his  father  J.  ft.,  in  which  he  had  no  insurable 
interest.  According  to  the  policies  the  premiums 
were  to  be  paid  by  weekly  payments.  J.  H.,  the 
eon,  continued  to  make  these  weekly  payments 
for  some  years.  J.  BL,  the  father,  haa  at  first  no 
knowledge  of  the  insurances  effected  on  his  life, 
but  when  he  became  aware  of  them  he  objected 
to  their  being  continued,  and  gave  notice  to 
that  effect  to  the  company.  J.  H..  the  son,  then 
gave  notice  to  the  defendants  that  the  policies 
were  at  an  end,  and  claimed  the  return  of  the 
amount  of  the  premiums.  The  defendants 
refused  to  pay,  and  J.  H.,  the  son,  brought  his 
action  for  their  recovery,  and  the  County  Court 
judge  gave  judgment  for  the  plaintiff.  The 
defendant  appealed  : — Held,  on  appeal,  that, 
under  the  circumstances  of  the  case,  the  policies 
were  wagering  policies,  and  consequently  the 
premiums  paid  in  respect  of  them  could  not  be 
recovered.    Howard  v.  Refuge  Friendly  Society, 

64  L.  T.  644— D. 

Hote  given  for  Gambling  Transactions — In- 
dorsement.]—  The  plaintiff  brought  an  action 
to  recover  the  amount  due  on  two  promissory 
notes  given  by  the  defendant  to  B.  in  respect  of 
certain  I  gambling  transactions  on  the  Stock 
Exchange,  and  indorsed  over  by  B.  to  the  plain- 
tiff for  valuable  consideration : — Held,  that  the 
plaintiff's  right  to  recover  was  not  affected  by 
the  fact  that  he  had  notice  of  the  notes  having 
been  given  by  the  defendant  to  B.  in  respect  of 
gambling  transactions,  the  consideration  for  the 
notes  not  being  illegal,  but  falling  only  within 
the  category  of  void  contracts  under  8  &  9  Vict, 
c.  109.    LMcy  v.  Rankin,  56  L.  J.,  Q.  B.  248  ; 

65  L.  T.  814— D. 

Cheque  given  for  Gambling  Debt.] — A  cheque 
given  in  payment  for  counters  obtained  from 
the  secretary  of  a  club  to  enable  the  purchaser 
to  gamble  at  cards,  cannot  be  sued  upon  by  the 
secretary.  St.  Croim  v.  Morris,  1  C.  &  B.  485— 
Stephen,  J. 

R 


488 


CONTRACT— The  Matter  of  Contracts. 


484 


d.  A  gain  at  Public  Policy  and  Decency. 

Removal  of  Corpses,  j— An  agreement  to  build 
houses  on  a  disused,  unconsecrated,  burial 
ground,  necessitating  the  removal  of  some 
thousands  of  corpses,  which  removal  would  of 
necessity  involve  an  outrage  on  public  decency, 
and  amount  to  an  indictable  offence,  is  illegal. 
Gibbons  v.  Chambers,  1  C.  &  B.  577 — Day,  J. 

Agreement  to  Divide  Benefits  to  be  received 
under  a  Will.] — Contracts  made  during  the  life- 
time of  a  testator,  and  fairly  obtained  by  persons 
living  in  expectation  of  receiving  benefits  under 
his  will,  to  divide  among  them  any  such  benefits 
after  his  death,  if  amounting  to  agreements  to 
use  undue  influence  upon  the  testator,  are  bad ; 
but  they  are  good  if  amounting  to  agreements  to 
disinterestedly  abstain  from  interfering  with  the 
testator,  and  will  be  upheld  where  there  is 
mutuality  of  consideration.  Higgins  v.  SUl, 
66  L.  T.  426— Chitty,  J. 


e.  Contrary  to  Morality. 

Continuance  of  Cohabitation — Presumption.] — 

The  testator  six  months  before  his  death  gave  a 
bond  to  a  lady  with  whom  he  had  cohabited 
for  more  than  thirty  years,  conditioned  for  the 
payment  to  her  at  the  expiration  of  two  years  of 
a  sum  of  money  and  interest ;  and  he  continued 
to  cohabit  with  her  until  his  death.  There  was 
nothing  on  the  face  of  the  bond  with  reference 
to  the  cohabitation,  and  there  was  no  evidence 
that  it  was  in  fact  given  to  secure  the  con- 
tinuance of  the  cohabitation  : — Held,  that  the 
mere  continuance  of  the  cohabitation  was  not 
enough  to  raise  the  presumption  that  the  bond 
was  given  in  consideration  of  future  cohabita- 
tion, and  accordingly  that  the  bond  was  good. 
Gray  v.  Mathias  (5  Yes.  286)  observed  on. 
VaXlance,  In  re,  Vallance  v.  Blagden,  26  Ch.  D. 
363  ;  50  L.  T.  574  ;  32  W.  R.  918  ;  48  J.  P.  398 
—Kay,  J. 

Absolute  Covenant  in  Separation  Deed  to  pay 
Annuity.] — In  a  separation  deed  a  covenant,  by 
which  the  husband  undertakes  to  pay  his  wife  an 
annuity  without  restricting  his  liability  to  such 
time  as  she  shall  be  chaste,  is  good,  and  is  not 
against  public  policy,  and  the  covenant  remains 
in  force  and  the  annuity  continues  payable, 
although  the  wife  afterwards  commits  adultery. 
But,  semble,  per  Cotton,  L.J.,  on  the  authority 
of  Beam  v.  Carrington  (2  De  G.,  F.  &  J.  481), 
that  if  the  covenant  had  been  inserted  in  the 
separation  deed  with  the  intent  that  the  wife 
might  be  at  liberty  to  commit  adultery,  the  deed 
would  have  been  void.  Fearon  v.  Aylesford 
(Earl\  14  Q.  B.  D.  792 ;  64  L.  J.,  Q.  B.  33  ; 
52  L.  T.  954 ;  33  W.  R.  331 ;  49  J.  P.  696— C.  A. 


£.  Aifeotinff  Administration  of  Justice. 

Threat  of  Criminal  Proceedings.] — Any  con- 
tract having  a  tendency,  however  slight,  to  affect 
the  administration  of  justice  is  illegal  and  void. 
The  consideration  of  a  bond  was  expressed  to 
be  that  the  obligor  was  to  be  free  from  any  legal 
proceedings  or  other  consequences  for  having 
introduced  the  obligee  to  C,  through  whom  the 
obligee  had  lost  money :— Held,  on  the  evidence, 


that  the  consideration  included  promises  that  no 
criminal  proceedings  should  be  commenced 
against  the  obligor,  and  that  certain  criminal 
proceedings  then  pending  against  G.  should  be 
so  conducted  that  the  name  of  the  obligor  should 
not  be  mentioned,  or  should  be  mentioned  in 
such  a  way  as  not  to  damage  him ;  that  the 
consideration  was  partly  illegal  as  tending  to 
affect  the  course  of  justice  ;  and  that  there  wis 
no  good  consideration  for  the  bond.  Lound  y. 
Grimwade,  39  Ch.  D.  605;  57  L.  JM  Ch.725; 
59  L.  T.  168— Stirling,  J. 

Indemnifying  Bail.]  — A  contract  is  illegal, 
whereby  a  defendant  in  a  criminal  case,  who 
has  been  ordered  to  find  bail  for  his  good 
behaviour  during  a  specified  period,  deposits 
money  with  his  surety  upon  the  terms  that  the 
money  is  to  be  retained  by  the  surety  during  the 
specified  period  for  his  own  protection  against 
the  defendant's  default,  and  at  the  expiration  of 
that  period  is  to  be  returned ;  and  no  action 
by  the  defendant  in  the  criminal  case  will  lie  to 
recover  back  the  money  deposited  with  the 
surety  either  before  or  after  the  expiration  of 
the  specified  period,  although  the  defendant  in 
the  criminal  case  has  not  committed  any  default, 
and  although  the  surety  has  not  been  compelled 
to  pay  the  amount  for  which  he  has  become 
bound.  Wilson  v.  StrugneU  (7  Q.  B.  D.  548)  as 
to  this  point  overruled.  Herman  v.  Jeuehner,  or 
Zeuchner,  15  Q.  B.  D.  561 ;  54  L.  J.,  Q.  B.M0; 
53  L.  T.  94  ;  33  W.  R.  606  ;  49  J.  P.  602— C.  A 
Reversing  1  C.  &  B.  364— Stephen,  J. 

Procuring  withdrawal  of  Criminal  Prosecu- 
tion.]— A  banking  company  commenced  a  prose- 
cution against  a  customer  for  having  obtained 
credit  from  them  under  false  pretences,  which  is 
by  s.  13  of  the  Debtors  Act,  1869,  made  a  mis- 
demeanour. At  this  time  the  bank  had  notice 
of  an  act  of  bankruptcy  committed  by  the 
customer.  On  the  day  on  which  the  summons 
was  to  be  heard  by  the  magistrate,  H.  signed  an 
undertaking  that,  if  the  magistrate  would  allow 
the  summons  to  be  withdrawn,  he  would  pay  the 
bank  the  sum  which  the  customer  had  obtained 
by  false  pretences.  An  application  was  made  to 
the  magistrate  by  the  customer's  solicitor  to 
allow  the  summons  to  be  withdrawn.  The 
application  was  assented  to  by  the  bank's 
solicitor,  and  granted  by  the  magistrate.  H. 
then  paid  the  money  to  the  bank.  The  bank 
manager  believed  that  H.  was  paying  the  money 
out  of  his  own  pocket.  The  customer  was  soon 
after  adjudicated  a  bankrupt,  upon  the  act  of 
bankruptcy  of  which  the  bank  had  notice.  The 
trustee  in  the  bankruptcy  discovered  that  the 
money  which  H.  had  paid  to  the  bank  had  been 
previously  handed  to  him  by  the  bankrupt's 
wife,  she  having,  with  the  bankrupt's  knowledge, 
taken  it  for  the  purpose  of  paying  the  bank  out 
of  a  bag  of  money  belonging  to  the  bankrupt  :— 
Held,  that  the  consideration  for  the  payment  to 
the  bank  being  the  stifling  of  a  prosecution, 
there  was  no  legal  consideration,  and  that,  though 
H.,  being  in  pari  delicto,  could  not  have  re- 
covered the  money  from  the  bank,  the  trustee, 
to  whom  by  virtue  of  the  relation  back  of  his 
title  to  the  act  of  bankruptcy,  the  money  really 
belonged,  could  recover  it.  Galdecott,  &  parte 
(4  Ch.  D.  150),  distinguished.  Wolverhampton 
Banking  Company,  JSso  parte.  Campbell.  In  re, 
14  Q.  B.  D.  32— D. 


485 


CONTRACT— The  Matter  of  Contracts. 


486 


g.    In    Bestraint    of    Trade, 
i.    General    Principles. 

CaaagM  In  Doctrine.]— The  changes  in  the 
doctrine  of  public  policy  and  the  authorities 
discussed  Davie*  v.  Davie*,  36  Ch.  D.  359 ; 
56  L  J.,  Ch.  962  ;  58  L.  T.  209 ;  36  W.  R.  86 
-C.A. 

The  old  rule  that  the  law  does  not  allow  an 
abaolate  covenant  in  restraint  of  trade  is  still 
binding.    lb.  per  Cotton,  L.J. 

Tagamet*—"  So  ferae  the  Law  allows."]— On 
i  dissolution  of  partnership  the  retiring  partner, 
who  received  a  large  sum  of  money,  covenanted 
*to  retire  from  the  partnership  ;  and,  so  far  as 
the  law  allows,  from  the  business,  and  not  to  trade, 
act,  ordeal  in  any  way  so  as  directly  or  indirectly 
to  affect  the  continuing  partners."  The  business 
had  been  carried  on  at  Wolverhampton  and  in 
London.  In  an  action  by  the  survivor  of  the 
continuing  partners  and  his  assignees  to  restrain 
the  retiring  partner  from  carrying  on  a  similar 
bonnes  in  Middlesex  : — Held,  that  the  covenant 
io  retire  from  the  business  so  far  as  the  law  allowB 
was  too  vague  for  the  court  to  enforce.    lb. 


ii  Reasonableness. 


Cutomers  —  Partial  Enforcement.] — In  an 
agreement  for  employment  as  a  milk  carrier,  the 
•errant  undertook  not  to  serve  or  interfere  with 
any  customer  served  or  belonging  at  any  time  to 
the  master,  his  successors  or  assigns  :— Held,  that, 
if  on  the  construction  of  the  undertaking  it  was 
not  limited  to  interference  with  persons  who 
vere  customers  during  the  employment  of  the 
•errant,  the  undertaking  was  severable,  and 
capable  of  enforcement  in  respect  of  persons  who 
were  customers  during  the  employment.  Baines 
▼.  Geary,  35  Ch.  D.  154  ;  56  L.  J.,  Ch.  935  ;  56 
L.  T.  567  ;  36  W.  B.  98  ;  51  J.  P.  628— North,  J. 

1st  to  carry  on  any  Business.] — An  agreement 
between  a  foreman  cutter  and  general  superin- 
tendent of  a  tailor's  business  and  his  master, 
contained  a  covenant  that  the  former  would  not 
after  quitting  bis  master's  service  enter  "  into 
any  engagement  or  be  concerned  in  carrying  on 
so/  business  whatsoever  "  within  a  given  period 
of  time  and  limit  of  distance  : — Held,  that  the 
covenant  could  not  be  construed  as  merely  a 
covenant  not  to  carry  on  the  business  of  a  tailor, 
hstwasvoid  as  being  in  general  restraint  of  trade. 
-Bsiaet  v.  Geary  (35  Ch.  D.  155),  discussed. 
Asfcr  v.  Hedgecoek,  39  Ch.  D.  520  ;  57  L.  J., 
Ck.889;  59  L.  T.  361;  36  W.  R.  840— Chitty,  J. 


Limit  of  Space  and  Time.]— The 
defendant  was  employed  by  the  plaintiff,  a  tailor 
fa  Begent  Street,  as  a  cutter  and  fitter  of  wearing 
•psarel  The  defendant  entered  into  an  agree- 
ment with  the  plaintiff  that,  upon  the  termination 
tfbis  employment  for  any  cause,  he  would  not 
*r?  on  toe  business  of  a  tailor  within  a  circuit 
often  miles  of  Charing  Cross  for  the  period  of 
tfoe  vears  from  such  termination  of  employment. 
Borne  time  afterwards  the  defendant  left  the 
plaintiffs  employment,  and  set  up  the  business 
of  *  tailor  and  outfitter  within  about  two  hundred 
jwda  of  the  plaintiff's  premises.  An  application 
foran  injunction  to  restrain  the  defendant  having 


|  been  made,  the  defence  was  raised  that  the 
restriction  imposed  by  the  agreement  upon  the 
defendant  was  far  in  excess  of  what  was  required 
for  the  reasonable  protection  of  the  plaintiff  in 
his  business  ;  and  that  the  agreement  was  there- 
fore invalid  on  the  ground  that  it  was  contrary 
to  public  policy,  as  being  in  unreasonable  restraint 
of  trade  :— Held,  that  the  agreement  was  not 
unreasonable,  either  in  point  of  space  or  in  point 
of  time,  for  a  tailor  like  the  plaintiff  to  require 
the  defendant  to  enter  into  ;  that  therefore  the 
agreement  was  not  invalid  ;  and  that  the  plaintiff 
was  entitled  to  the  injunction  claimed.  Nicoll 
v.  Beere,  53  L.  T.  659— Kay,  J. 

limit  of  Space— Time  Unlimited.  ] — W.  entered 
the  service  of  C.  as  a  shopman  at  weekly  wages, 
and  covenanted  not  to  carry  on  business  within 
one  mile  of  the  shop  at  any  time  thereafter.  The 
business  was  afterwards  moved  to  another  shop 
close  by,  and  sold  by  C.  to  J.,  together  with  the 
goodwill  and  beneficial  interest  thereof  W. 
then  left  the  shop,  and  set  up  business  within  a 
mile  of  the  old  shop : — Held,  that  the  covenant 
was  not  unreasonable,  and  endured  for  the  life  of 
W.,  though  the  original  covenantee  should  cease 
to  carry  on  business  altogether,  and  that  the 
covenant  was  not  affected  by  the  removal  of  the 
business  to  another  shop  near  at  hand,  though  it 
might  have  been  otherwise  if  the  business  had 
been  removed  to  quite  a  different  neighbourhood. 
Jaooby  v.  Whitmore,  49  L.  T.  335  ;  32  W.  R.  18  ; 
48  J.  P.  325— C.  A. 

Where  a  defendant  in  an  action  had  agreed  to 
act  as  clerk  and  traveller  for  the  plaintiff  in  the 
business  of  a  wine  and  spirit  merchant,  carried 
on  by  him  at  Burton-on  -Trent,  and  had  further 
agreed  not  at  any  time  thereafter,  either  alone 
or  in  partnership  with,  or  as  clerk,  agent,  or 
traveller  to,  any  person  or  persons  whomsoever, 
to  carry  on  or  conduct,  or  assist  in  carrying  on  or 
conducting,  the  trade  or  business  of  a  wine  and 
spirit  merchant,  or  any  branch  thereof,  within 
tne  distance  of  fifty  miles  from  that  town  with- 
out the  licence  and  consent  of  the  plaintiff,  the 
court  held  that  the  restriction  imposed  upon  the 
defendant  was  not  in  excess  of  what  was  re- 
quired for  the  reasonable  protection  of  the  plain- 
tiff in  his  business  ;  that  the  agreement  was  not 
invalid  on  the  ground  that  it  was  contrary  to 
public  policy,  as  being  in  unreasonable  restraint 
of  trade,  and  that  therefore  the  plaintiff  was  en- 
titled to  a  perpetual  injunction  to  restrain  the 
defendant  from  a  breach  thereof.  Parsons  v. 
Cotterell,  56  L.  T.  839  ;  51  J.  P.  679— Kay,  J. 

Ho  limit  of  Space  —  Time  Limited.]— A 
covenant  not  to  carry  on  the  business  of  a  manu- 
facturer for  a  period  of  five  years  under-, 
particular  name  or  style  is  not  void,  as  being  a 
covenant  in  restraint  of  trade,  notwithstanding 
that  it  may  be  unlimited  in  point  of  space. 
Vernon  v.  ffallam,  34  Ch.  D.  748  ;  56  L.  J.,  Ch. 
115  ;  56  L.  T.  676  ;  35  W.  B.  166— Stirling  J. 

Bale  of  Society  not  to  employ  Servants  of  other 
Xembers.] — A  society  established  for  the  pro- 
tection oi  a  particular  trade  contained  a  rule 
that  no  member  should  employ  any  traveller, 
carman,  or  outdoor  employe  who  had  left  the 
service  of  another  member  without  the  consent 
in  writing  of  his  late  employer  till  after  the 
expiration  of  two  years : — Held,  that  the  rule 
was  unreasonable,  in  restraint  of  trade,  and  void. 

B  2 


487 


CONTRACT— The  Matter  of  Contracts. 


488 


But,  semble,  a  rale  protecting  the  members 
against  information  gained  by  servants  being 
improperly  communicated  to  other  members,  if 
reasonably  framed,  would  have  been  good. 
Mineral  Water  Bottle  Exchange  Society  v. 
Booth,  36  Ch.  D.  465  ;  57  L.  T.  673  ;  36  W.  R. 
274— C.  A. 


iii.  What  Constitutes  a  Breach. 


Condition  in  Bond — Evidence  of 
Injunction.] — The  defendant  having  been  ap- 
pointed by  the  plaintiffs  their  bank  manager  at 
Leeds,  executed  a  bond  in  1,000Z.  to  the  plaintiffs, 
conditioned  to  be  void  if  the  defendant,  after  quit- 
ting the  plaintiffs*  employ,  should  not  enter  into 
similar  employ  within  the  time  and  distance 
specified.  The  defendant  having  committed  a 
breach  of  the  condition,  contended  that  the 
plaintiffs*  only  remedy  was  to  recover  the 
monetary  penalty  in  the  bond : — Held,  that 
the  conaition  of  the  bond  was  evidence  of  an 
agreement  sufficient  to  sustain  an  injunction. 
London  and  Yorkshire  Bank  v.  Pritt,  56  L.  J., 
Ch.  987;  57  L.  T.  876;  36  W.  R.  135— 
Chitty,  J. 

Bo  negative  Covenant.] — Where  in  breach  of 
an  agreement  by  the  defendant  to  serve  the 

Elaintiff  for  fourteen  years  as  manager  of  his 
usiness  (which  agreement  contained  no  express 
negative   covenants),    the   defendant   left    the 

Slaintiff  and  started  a  similar  business  a  few 
oors  off  : — Held,  that  the  court  had  power  to 
grant  an  injunction.  Jackson  v.  Astley,  1  C.  & 
B.  181— Pollock,  B. 

Agreement  not  to  carry  on  the  Profession  of 
a  Surgeon — Acting  at  Assistant] — M.  became 
assistant  to  H.  &  P.,  surgeons  at  N.,  and  entered 
into  a  bond  which  recited  that  he  was  taken  into 
their  employment  on  the  terms  "  that  he  should 
not  at  any  time  set  up  or  carry  on  the  business 
or  profession  of  a  surgeon  "  in  N.,  or  within  ten 
miles  thereof.  The  condition  of  the  bond  was 
that  M.  "  shall  not  at  any  time  hereafter,  directly 
or  indirectly,  and  either  alone  or  in  partnership 
with  or  as  assistant  to  any  other  person  or 
persons,  carry  on  the  profession  or  business  of  a 
surgeon"  in  N.,  or  within  ten  miles  thereof. 
The  partnership  having  been  dissolved,  both 
partners  continued  to  practise  in  N.,  and  H. 
engaged  M.  as  his  assistant  at  a  salary.  P. 
brought  his  action  to  restrain  M.  from  acting  as 
such  : — Held,  that  there  had  been  a  breach  of  it, 
for  that  a  person  acting  as  a  surgeon  was  carry- 
ing on  the  profession  of  a  surgeon,  although  he 
only  acted  as  salaried  assistant  to  a  surgeon  who 
carried  it  on  for  his  own  benefit,  and,  therefore, 
that  an  injunction  ought  to  be  granted.  Allen 
v.  Taylor  (19  W.  R.  556)  distinguished.  Palmer 
v.  Mallet ,  36  Ch.  D.  411  ;  57  L.  J.,  Ch.  226  ;  58 
L.  T.  64  ;  36  W.  R.  460-C.  A. 

8ale  of  Medical  Practice— Covenant  not  to 
Bnter  into  Competition.] — An  agreement  for  the 
sale  of  a  medical  practice  provided  that  the 
vendor  would  not  practise  or  reside  within  a 
given  radius,  or  otherwise  directly  or  indirectly 
enter  into  competition  with  the  purchaser.  The 
vendor  was  called  in  by  patients  resident  within 
the  radius,  and  visited  them.  He  did  not,  how- 
ever, solicit  such  patients,  and  they  stated  that 


they  would  in  no  event  have  called  in  the  pur- 
chaser : — Held,  that  the  competition  contem- 
plated by  the  agreement  was  not  confined  to 
active  competition,  and  that  the  acts  of  the 
vendor  constituted  an  infringement  of  the  cove- 
nant. Rogers  v.  Brury,  57  L.  J.,  Ch.  504 ;  36 
W.  R.  496— Chitty,  J. 

Covenant  not  to  "  Engage  in,  or  be  in  any 
way  concerned,"  in  a  Business— Acting  u 
Employe.]— T.,  as  trustee  on  behalf  of  a  com- 
pany  about  to  be  formed,  purchased  from  the 
trustee  in  liquidation  of  H.'s  affairs  the  business 
carried  on  by  the  latter,  and  by  an  agreement 
made  between  T.,  H.,  and  the  trustee,  H.  agreed 
with  T.t  both  personally  and  on  behalf  of  the 
proposed  company,  that  so  long  as  the  company 
carried  on  the  business,  H.  would  not  "  engage 
in,  or  be  in  any  way  concerned  or  interested,  in 
any  similar  business  within  ten  miles  of  the 
Royal  Exchange,  London."  The  company  was 
subsequently  formed,  and  whilst  it  was  carrying 
on  its  business,  H.  became  an  employe  of  B.  &  Co., 
who  were  carrying  on  a  similar  business  in 
London  : — Held,  that  H.  had  committed  a 
breach  of  his  covenant.  Hill  $  Co.  v.  HM, 
55  L.  T.  769 ;  35  W.  R.  137  ;  51  J.  P.  246- 
Kekewich,  J. 

iv.  Proceedings  by  Assignee  to  Enforce. 

When  Possible.] — A  covenant  by  one  partner 
upon  the  dissolution  of  the  partnership,  not  to 
trade,  act,  or  deal,  so  as  to  directly  or  indirectly 
affect  the  continuing  partners,  was  held  to  be 
personal  to  the  continuing  partners,  and  could 
not  be  sued  upon  by  their  assignees.  Baviet  v. 
Barries,  36  Ch.  D.  359  ;  56  L.  J.,  Ch.  962 ;  68 
L.  T.  209  ;  36  W.  R.  86— C.  A. 

A  shopman  at  weekly  wages  covenanted  with 
his  employer  not  to  carry  on  business  within  a 
mile  from  the  shop  at  any  time  thereafter.  The 
employer  sold  his  business  together  with  the 
goodwill  and  beneficial  interest  thereof  to  the 
plaintiff  : — Held,  that  the  covenant  added  to 
the  value  of  the  goodwill,  and,  therefore,  was 

Sart  of  the  goodwill  and  assignable  with  it,  and 
id,  in  fact,  pass  by  the  sale  of  the  goodwill  and 
beneficial  interest  to  the  plaintiff  so  as  to  give 
him  a  right  of  action.  Jacoby  v.  Whitman,  49 
L.  T.  335  ;  32  W.  R.  18  ;  48  J.  P.  325— C.  A 


XV.    DISCHARGE  AHD  BREACH  0? 
CONTRACTS. 


Breach — Landlord  and  Tenant — Bight  to  Sue 
for,  on  Repudiation.] — One  who  has  agreed  to 
take  a  furnished  house  is  not  bound  to  fulfil  his 
contract  if  the  house  be  infected  with  measles  at 
the  date  fixed  for  the  commencement  of  the 
tenancy.  If  in  such  a  case  the  lessor  sue  for 
rent,  he  must  show,  to  entitle  him  to  succeed, 
that  the  house  was  in  fact  in  a  state  fit  for 
human  occupation  at  the  date  fixed  for  the 
commencement  of  the  term,  notwithstanding  a 
previous  intimation  by  the  tenant  of  his  intention 
to  repudiate  the  contract.  Bird  v.  Orcville 
(Lord),  1  C.  &  E.  317— Field,  J. 

Of  School  Rules  by  Parent— Sight  of 

Schoolmaster  to  refuse  to  complete  his  Contract- J 
—The  defendant's  son  was  a  pupil  at  the  plain- 


489 


CONTRACT — Discharge  and  Breach  of  Contracts. 


490 


tiffs  school,  one  of  the   rales  of  which — the 
defendant  having  notice  of  it — was  that   no 
M  exeat,"  or  permission  to  leave  the  school  and 
remain  away  for  one  night,  was  allowed  daring 
Easter  Term.  Daring  Easter  Term  the  defendant 
requested  that  his  son  might  be  allowed  to  come 
home  and  remain  for  the  night,  which  the  plain- 
tiff refused  to  allow ;  bat  subsequently,  on  the 
defendant  repeating  the  request  and  sending  a 
tenant  for  the  boy,  the  plaintiff  allowed  him  to 
go  home,  writing  to  the  defendant  at  the  same 
time  that  he  did  so  on  the  understanding  that 
the  boy  returned  the  same  night.    On  the  boy 
reaching  home,  the  defendant  telegraphed  to  the 
plaintiff  that  it  was  not  convenient  to  send  the 
boy  that  day,  bat  he  could  return  the  next  morn- 
ing, to  which  the  plaintiff  telegraphed  in  reply 
that  unless  the  defendant's  son  retained  that 
night  he  should  not  receive  him  back.    In  conse- 
quence of  the  last  telegram  the  defendant  did 
not  send  the  boy  back,  and  the  present  action 
vis  brought  to  recover  the  school  fees  due  on 
the  first  day  of  Easter  Term,  of  which  term  less 
than  three  weeks  had  expired  when  the  boy  left. 
The  defendant  paid  13/.  into  court  with  a  denial 
of  liability,  and  counter-claimed   damages  for 
breach  of  contract  by  the  plaintiff: — Held,  that 
the  plaintiff's  contract  was  to  board,  lodge,  and 
educate  the  defendant's  son  for  the  term  on  the 
condition  that  he  should  be  at  liberty  to  enforce 
with  regard  to  the  boy  the  rules  of  the  school, 
or  such  of  them  as  were  known  to  the  defendant ; 
that  this  condition  having  been  broken  by  the 
defendant,  the  plaintiff  had  the  right  to  refuse 
to  complete  his  contract,  and  was  consequently 
entitled  to  succeed  in  this  action  both  on  claim 
and  counter-claim.      Price  v.  Wilkint,  58  L.  T. 
680-WilJs,  J. 

Sale  of  Goods.]— See  Sale. 

Bepndiation  before  Time  for  Performance — 
Declaration  of  Inability  to  Perform— Election.] 
—In  a  lease  of  premises  for  a  term  of  twenty- 
one  years  determinable  by  the  lessee  at  the  end 
of  the  first  four  years  by  a  six  months*  notice, 
the  lessor  covenanted  to  rebuild  the  premises 
after  the  expiration  of  the  first  four  years  of 
the  term  upon  a  six  months1  notice  from  the 
lessee  requiring  him  to  do  so.  Before  the 
expiration  of  the  first  four  years  of  the  term 
the  lessor  on  many  occasions  told  the  lessee 
that  be  would  be  unable  to  procure  the  money 
for  rebuilding  the  premises.  The  lessee,  in 
consequence  of  this  statement  by  the  lessor, 
tare  the  requisite  notice,  under  the  provisions 
of  the  lease,  to  determine  the  term  at  the  end  of 
the  first  four  years.  After  the  determination  of 
the  lease  he  continued  to  occupy  the  premises 
for  some  months,  paying  rent  to  the  lessor's 
mortgagees,  on  the  chance,  as  he  stated,  of  the 
lessor's  procuring  the  money  to  rebuild.  The 
lessor  being,  howeveT,  unable  to  rebuild  the 
pemises,  the  lessee  claimed  damages  against 
him  for  breach  of  the  contract  to  do  so: — Held, 
that  the  covenant  to  rebuild  never  having  been 
actsally  broken,  because  the  lessee  had  before 
the  time  for  its  performance  determined  the 
term,  he  could  not  recover  unless  there  had  been 
s  breach  of  contract  by  anticipation  within  the 
doctrine  of  Hochtter  v.  Be  la  Tow  (2  E.  &  B. 
«78)  and  Frost  v.  Knight  (7  L.  R.  Ex.  Ill),  by 
reason  of  a  wrongful  repudiation  of  his  cove- 
nant by  the  lessor  before  the  time  for  perform- 


ance ;  that  what  had  been  said  by  tbe  lessor  did 
not  under  the  circumstances  of  the  case  amount 
to  such  a  repudiation  ;  and  that,  if  it  did,  such 
repudiation-  before  the  time  of  performance 
arrived  would  not  amount  to  a  breach  of  the 
contract,  unless  the  lessee  elected  to  treat  it  as 
putting  an  end  to  the  contract  except  for  the 
purposes  of  an  action  for  such  breach,  and  the 
lessee  had  not  under  the  circumstances  so 
elected ;  and  that  he  could  not  therefore  main- 
tain his  claim.  Quaere,  whether  the  doctrine  of 
Hochtter  v.  Be  la  Tour  (2  E.  &  B.  678),  can  be 
applicable  to  the  case  of  a  lease  or  other  con- 
tract containing  various  stipulations  where  the 
whole  contract  cannot  be  treated  as  put  an  end 
to  upon  the  wrongful  repudiation  of  one  of  the 
stipulations  of  the  contract  by  the  promisor. 
Johnstone  v.  Milling,  16  Q.  B.  D.  460  ;  56  L.  J., 
Q.  B.  162  ;  64  L.  T.  629  ;  34  W.  R.  238  ;  60  J.P. 
694— C.  A. 

Monthly  Deliveries— Hon-payment    for 

one  Delivery.]— See  Mersey  Steel  and  Iron  Com- 
pany v.  Naytor,  ante,  col.  477. 

Measure  of  Damages — Payment  to  Bottle 
Action.] — A  "  boat-staging  "  or  suspension  plat- 
form, put  up  for  the  plaintiffs  by  the  defendant 
under  a  contract  between  them,  to  enable  the 
plaintiffs  to  paint  a  house,  fell,  through  being 
insecurely  fastened  by  the  defendant,  and  hurt 
a  painter  in  the  employment  of  the  plaintiffs. 
He  brought  an  action  under  the  Employers* 
Liability  Act  (43  &  44  Vict.  c.  42)  against  the 
plaintiffs  for  injuries  sustained  in  consequence 
of  the  defective  state  of  the  boat-staging.  The 
plaintiffs  settled  the  action  by  paying  to  the 
painter  125/.,  and  then  sued  the  defendant  for 
breach  of  his  contract : — Held,  that  the  defend- 
ant was  liable  under  the  contract ;  but  that, 
inasmuch  as  the  plaintiffs  had  employed  a 
competent  contractor  to  put  up  the  boat-staging, 
and  there  was,  on  the  facts,  no  evidence  of 
negligence  by  the  plaintiffs,  they  were  not  liable 
to  their  servant  for  the  injury  he  had  sustained, 
and  therefore  the  money  which  they  had  paid  to 
settle  his  action  was  not  recoverable  as  damages 
from  the  defendant  for  his  breach  of  contract. 
Kiddle  v.  Lovett,  16  Q.  B.  D.  605  ;  34  W.  R. 
618— D. 

Indemnity  —  Costs  when  included.] — 


Under  a  covenant  to  indemnify  against  all 
actions  and  claims  in  respect  of  the  covenants  of 
a  lease,  costs  properly  incurred  in  reasonably 
defending  an  action  brought  for  a  breach  of  one 
of  the  covenants  are  recoverable  as  damages. 
Murrell  v.  Fysh,  1  C.  &  E.  80— Williams,  J. 

Hot   advancing  Money   as   agreed.] — 

Where  there  is  an  agreement  to  lend  money,  and 
special  damage  results  from  the  breach  of  that 
agreement,  and  a  party  is  deprived  of  the  oppor- 
tunity of  getting  money  elsewhere,  substantial, 
and  not  merely  nominal,  damages  ought  to  be 
awarded.  Manchester  and  Oldham  Banky.  Cook, 
49  L.  T.  674— D. 

Hotice  of  Purpose  for  which  Goods  sent] 


The  plaintiff  delivered  a  parcel  at  a  receiving 
office  of  the  defendants  in  London,  addressed  to 
"  W.  H.  M.,  Stand  23,  Show  Ground,  Lichfield, 
Staffordshire ;  van  train."  Nothing  was  said  by 
the  person  who  delivered  the  parcel  at  the 
receiving  office  as  to  the  purpose  for  which  it  was 


491 


CONVERSION. 


492 


being  sent  to  Lichfield,  or  to  draw  attention  to 
the  label: — Held,  that  the  label  was  sufficient 
notice  to  the  defendants  that  the  goods  were 
being  sent  to  a  show,  and  that  the  plaintiffs 
were  entitled  to  recover  damages  for  loss  of  pro- 
fits and  expenses  incurred  by  the  goods  being 
delayed,  and  not  being  delivered  at  Lichfield  in 
time  for  the  show.  Jameson  v.  Midland  Itailway, 
60  L.  T.  426— D. 

On  Sale  of  Goods.]— See  Damages. 

Payment.]— See  Payment. 

Damages— Concurrent  Contracts — Charges  on 
Honeys  payable  under— 8et-o£J— Under  a  con- 
tract for  paving  and  maintaining  V.  Street 
between  certain  commissioners  and  a  company, 
the  commissioners  were  empowered  to  retain 
the  cost  of  maintenance  and  to  set  it  off  against 
any  money  which  might  be  payable  by  them 
to  the  company.  The  company,  on  the  15th 
of  November,  1882,  gave  L.  a  letter  of  charge 
upon  all  their  interest  in  the  contract  to  secure 
a  debt  due  from  them  to  him.  On  the  9th  of 
December,  L.  gave  the  commissioners  notice  of 
this  charge,  and  later  on  the  same  dav  the  com- 
pany presented  a  petition  for  winding-up  its 
affairs,  after  which  the  provisional  liquidator  was 
empowered  to  complete  the  contract  subject  to 
any  prior  charge  in  favour  of  L.  On  the  13th  of 
January,  1883,  the  winding-up  order  was  made. 
The  commissioners  claimed  damages  for  non- 
fulfilment  of  the  contract  to  maintain  V.  Street, 
and  also  four  other  streets  under  similar  con- 
tracts, and  they  claimed  to  set  off  these  sums 
Spinst  money  due  from  them  to  the  company  : — 
eld,  that  the  commissioners  were  not  entitled 
to  set-off  against  moneys  due  from  them  to  the 
company  under  the  contract  relating  to  V.  Street 
any  damages  to  which  they  might  be  entitled 
for  breaches  of  the  other  contracts.  Held  also, 
that  the  charge  in  favour  of  L.  being  given  prior 
to  the  liquidation,  the  commissioners  were  not 
entitled  to  a  set-off  against  L.,  but  that  they 
could  set-off  the  damages  against  the  liquidator 
under  the  mutual  credit  section  of  32  &  33  Vict. 
c.  71.  Asphaltie  Paving  Company,  In  re,  Lee 
and  Chapman's  case,  30  Ch.  D.  216  ;  54  L.  J.,  Ch. 
460  ;  53  L.  T.  65  ;  33  W.  R.  513— C.  A. 


CONTRACTOR. 

Liability  of  Employer  for  Acts  of  Contractor 
ox  his  Servants.]— See  cases,  post,  sub  tit.  Prin- 
cipal and  Agent. 


CONTRIBUTION. 

Between  Co-Sureties.J— See  Principal  and 
Surety. 


CONVERSION. 


CONTRIBUTORY. 

See  COMPANY. 


L  Equitable  Conversion. 
IX.  Op  Goods.— See  Criminal  Law— Trovir. 

1.  EQUITABLE  CONVERSION. 

Discretionary   power  of    Sale— (Bale   dvrias; 
existence  of  Contingent  Interest.] — ft,  by  will, 
devised  real  and  personal  estate  to  trustees  upon 
trust  for  his  two  children,  a  son  and  daughter,  in 
equal  shares,  and  gave  the  trustees  a  power  of 
sale  at  discretion.    One  half  the  daughter's  share 
was  settled  by  the  will.    On  the  marriage  of  the 
daughter,  E.  R.  ft,  in  1865,  a  deed  was  executed 
appointing  new  trustees  of  the  will,  and  declaring 
that  they  should  stand  possessed  of  the  settled 
half  of  the  daughter's  share  on  the  trusts  of  the 
will,  and  the   unsettled  half  upon  the   trusts 
declared  by  a  settlement  of  even  date.    By  the 
settlement  the  unsettled  share  and  certain  other 
property  were  conveyed  to  the  same  trustees 
upon  trust  for  the  said  B.  R.  ft  (with  no  words 
of  limitation)  until  her  marriage,  then   upon 
trust  to  invest  and  to  hold  the  investments  upon 
the  usual  trusts  in  favour  of  her,  her  husband 
and  children,  with  an  ultimate  trust  for  her,  her 
executors,  administrators,  and  assigns.    At  the 
date  of  the  settlement  a  large  part  of  the  real 
estate  devised  by  the  will  remained   unsold. 
E.  R.  C.  afterwards  survived  her  husband  and 
died,  leaving  an  infant  daughter  who  died  with- 
out ever  attaining  a  vested  interest  under  the 
settlement     A  part  of  the  real  estate  was  sold 
during  E.  R.  C's  life,  and  the  residue  during  the 
life  of  her  daughter,  who  had   a  contingent, 
though  not  a  vested  interest: — Held,  that  no 
conversion  of  the  real  estate  devised  by  the  will 
was  effected  by  the  settlement,  but  the  whole 
having  been  sold  while  there  was  in  existence  an 
interest,  though  not  a  vested  interest,  under  the 
trusts  of  the  settlement,  the  whole  property  so 
sold,  and  not  only  that  sold  in  E.  R.  C.'s  lifetime, 
was  converted,  and  must  be  taken  by  her  personal 
representatives.    Sinclair's  Settlement,   In   re, 
Crump  v.  Leicester,  56  L.  T.  83 — North,  J. 

Compulsory  Purchase  of  Land  of  Lunatie  not 
so  found.] — Sect.  7  of  the  Lands  Clauses  Con- 
solidation Act,  1845,  does  not  authorize  a  person 
of  unsound  mind  to  sell  land  to  a  company  or 
public  body  who  have  statutory  power  to  take 
it ;  the  section  only  authorizes  the  committee  of 
a  lunatic  to  sell.  A  public  body  having  given 
notice  under  their  statutory  powers  to  take  land 
belonging  to  a  lady  of  unsound  mind  not  so 
found,  the  value  of  the  land  was  ascertained  by 
two  surveyors,  one  appointed  by  an  uncle  of  the 
lady,  who  purported  to  act  on  her  behalf,  and 
the  other  by  the  public  body;  the  sum  thus 
ascertained  was  paid  into  court,  and  the  public 
body  took  possession  of  the  land.  The  lady 
afterwards  died  intestate,  being  still  of  unsound 
mind,  and  her  heir-at-law  petitioned  for  payment 
of  the  money  to  him  : — Held,  that  the  land  had 
never  been  converted  into  personalty,  and  that 
the  heir  was  entitled  to  the  money.  Flawanky 
Ex  parte  (1  Sim.  (N.  S.)  260),  dissented  from* 
Tugwell,  In  re,  27  Ch.  D.  309 ;  53  L.  J.,  Ch. 
1006  ;  51  L.  T.  83  ;  33  W.  R.  132— Pearson,  J. 


m 


CONVERSION. 


494 


Pirol  Contract  by  Testator — Contract  in 
writing  by  Besidnary  Devisee.]— A  testator 
agreed  verbally  to  sell  land,  and  received  a 
deposit  The  residuary  devisee  contracted  in 
writing  to  sell  the  land  to  the  same  purchaser  at 
the  same  price,  to  be  paid  partly  by  the  de- 
posit :— field,  that  the  devisee  had  not  adopted 
lis  testator's  parol  contract  so  as  to  effect  a  con- 
version relating  back  to  the  testator's  lifetime. 
Esrrison,  In  re,  Perry  v.  Spencer,  34  Ch.  D. 
ill;  56  L.  J.,  Ch.  341  ;  66  L.  T.  159  ;  35  W.  R. 
196— North,  J. 

Death  of  Vendor  before  Completion — Defective 
Title  Beal  Estate  Devised  on  Trust  for  Sale.]— 
legator  (who  married  after  1834),  by  his  will,. 
five  all  his  real  estate  to  trustees,  on  trust  to 
convert  and  invest  1,0002.  out  of  the  proceeds  of 
sale  and  pay  the  income  to  his  widow  for  life, 
and  then  gave  certain  legacies,  but  did  not  dis- 
pose of  the  residuary  proceeds  of  sale.  The  tes- 
tator at  the  date  of  his  death  had  contracted  to 
sell  certain  lands  for  3,000/.  After  his  death  the 
trustees  found  that  no  title  could  be  made  to  part 
of  the  lands,  and  rescinded  the  contract.  They 
then  put  up  the  lands  to  which  they  had  a  title 
for  sale  by  auction,  and  sold  them  for  2,500/.  to 
the  same  purchaser : — Held,  that  there  was  no 
conversion  of  the  testator's  real  estate  beyond 
toe  purposes  declared  by  the  will,  and  that  the 
andoposed  of  proceeds  of  sale  resulted  to  the 
heir.  Thomas,  In  re,  Thomas  v.  Howell,  34  Ch. 
D.  166  ;  56  L.  J.,  Ch.  9  ;  55  L.  T.  629— Kay,  J. 

Power  of  Sale  discretionary — Conversion  im- 
perative,]— A  testator  gave  an  annuity  to  his 
wife,  ana  he  gave  and  bequeathed  to  his  seven 
children  all  his  real  and  personal  estate  after  de- 
ducting the  said  annuity ;  and  after  his  wife's 
decease  the  annuity,  together  with  all  rents, 
interests,  dividends  and  profits  arising  from  his 
estate,  to  be  divided  between  his  seven  children 
equally ;  and  he  directed  his  executors  to  sell 
and  convert  into  money  his  furniture,  lands, 
booses,  tenements,  and  other  property  whenever 
it  should  appear  to  their  satisfaction  that  such 
sale  would  be  for  the  benefit  of  his  children,  and 
all  money  arising  from  the  sale  to  be  invested 
for  the  benefit  of  his  children  : — Held,  that  the 
direction  to  convert  was  imperative,  and  operated 
from  the  death  of  the  testator.  Haw,  In  re, 
Morris  v.  Griffiths,  26  Ch.  D.  601  ;  53  L.  J.,  Ch. 
1050 ;  51  L.  T.  282  ;  32  W.  B.  986— Pearaon,  J. 

Fever  of  Bale  in  Trustees— Order  for  Sale.]— 
An  absolute  order  for  sale  made  within  the 
jurisdiction  of  the  court  in  an  administration 
•sit  operates  as  a  conversion  from  the  date  of 
the  order  and  before  any  sale  has  taken  place. 
Hfett  v.  Mehin,  25  Ch.  D.  735  ;  53  L.  J.f  Ch. 
141 ;  50  L.  T.  54  ;  32  W.  R.  513— Kay,  J. 


it  by  mil.]— There  is  a  distinction 
between  a  will  made  by  a  married  woman  under 
a  power  and  when  disposing  of  property  in  her 
own  right  as  a  feme  sole.  The  power  must  be 
looked  at  to  see  in  what  character  the  property 
was  held  when  disposed  of  by  the  testator,  and 
where  by  virtue  of  the  power  it  has  been  con- 
verted into  personalty,  she  is  in  fact  disposing  of 
aeaoaalty.  Gvnn,  /*  Goods  of,  9  P.  D. 
US;  53 1.  J.,  P.  107  :  33  W.  R.  169  ;  49  J.  P. 
72— Hannan,  P. 


Trust  for  Sale— Discretion  to  Postpone — Be* 
conversion.  ] — A  testator  devised  his  real  estate 
upon  trust,  either  immediately  or  at  any  time 
after  his  death  as  to  his  trustees  should  seem 
most  expedient,  to  sell  and  to  hold  the  proceeds 
in  trust  for  his  sons  W.,  F.,  H.,  and  G.,  if 
and  when  they  should  attain  the  age  of  twenty- 
one  years,  in  equal  shares.  F.  predeceased  the 
testator,  and  his  share  therefore  lapsed  and 
devolved  upon  W.,  as  heir-at-law  of  the 
testator.  H.  attained  twenty-one  but  died  in- 
testate and  unmarried,  leaving  his  mother  E.  and 
his  surviving  brothers  W.  and  G.  his  next-of-kin. 
G.  attained  twenty-one  but  died,  having  by  his 
will  given  all  his  real  and  personal  estate  to  W. 
W.  was  subsequently  found  a  lunatic  by  inquisi- 
tion, and  remained  of  unsound  mind  until  his 
death,  intestate  and  without  next-of-kin  or  heir- 
at-law.  Letters  of  administration  to  his  personal 
estate  had  been  taken  out  by  the  Solicitor  to  the 
Treasury.  The  real  estate  devised  by  the  testator 
remained  unsold  at  the  time  of  W.'s  death,  and 
an  action  was  brought  to  ascertain  the  persons 
entitled  thereto.  The  representatives  of  the 
trustees,  as  the  persons  upon  whom  the  legal 
estate  had  devolved,  contended  that,  as  there 
had  been  conversion  of  the  real  estate  into 
personalty,  the  Crown  was  not  entitled  through 
the  Solicitor  to  the  Treasury  to  come  in  and 
insist  that  the  real  estate  should  be  treated  as 
converted ;  that  there  being  an  absolute  discre- 
tion to  postpone  the  sale  for  an  indefinite  period, 
that  which  was  a  trust  had  been  cut  down  to  a 
mere  power  of  sale ;  and  that,  as  there  had  been 
a  failure  of  the  cestuis  que  trust,  the  trustees  were 
entitled  to  retain  for  their  own  benefit  the  pro- 
perty, or  the  undivided  shares  thereof,  to  which 
w.  was  entitled  at  his  death  : — Held  that  the 
trust  for  conversion  was  absolute,  and  had  not 
been  displaced  by  the  discretion  to  postpone, 
inasmuch  as  the  several  parties  interested  had 
not  at  any  time  been  all  competent  to  agree  to 
a  re-conversion ;  that  the  real  estate  must  still 
be  treated  as  personal  estate ;  and  that  the  Soli- 
citor to  the  Treasury,  as  administrator  of  the 
lunatic,  did  not  stand  in  any  different  position 
to  any  other  administrator,  and  was  entitled  to 
the  beneficial  interest  of  W.  in  the  real  estate. 
Heatheote,  In  re,  Gilbert  v.  Aviolet,  58  L.  T.  43 
— Chitty,  J.  Affirmed  85  L.  T.  Journ.  120— 
C.  A. 


Election  to  take  as  Beal  Estate.]— A  tes- 


tator devised  and  bequeathed  real  and  personal 
estate  to  trustees  for  his  wife  for  life,  and  after 
death,  as  to  one  freehold  house  upon  trust  for  one 
of  his  sons  for  life,  as  to  another  freehold  house 
upon  trust  for  his  daughter  for  life,  and  as  to  a 
third  freehold  house  upon  trust  for  another  son 
for  life,  and  after  their  respective  deaths  to 
their  issue  respectively,  and  after  the  respective 
deaths  of  any  without  issue  he  directed  his 
trustees  to  Bell  the  house  of  such  child  and  to 
pay  the  proceeds  of  sale  to  the  survivors  or  the 
survivor  of  his  three  children,  and  until  sale  to 

Eay  the  rents  to  the  same  persons  or  person,  and 
e  gave  his  residuary  real  and  personal  estate  to 
such  of  his  three  children  as  should  survive  the 
widow.  One  of  the  sons  predeceased  the 
widow,  a  bachelor.  The  daughter  survived 
her  and  died  intestate  in  1877,  and  all  her 
property  passed  to  her  surviving  brother 
as  her  sole  next  of  kin.  The  houses  were  let 
to  weekly  tenants,  and  the  surviving  son,  since 


495 


COPYHOLDS. 


496 


1877,  received  all  the  rents.  He  died  in  1885, 
and  shortly  before  his  death  he  handed  the  title- 
deeds  of  the  houses  to  a  solicitor,  directing  that  a 
sift  of  all  his  property  should  be  made  to  a  niece, 
but  he  died  before  a  conveyance  could  be  exe- 
cuted. The  question  then  rose  whether  the 
will  had  effected  a  converaon  of  the  realty,  and, 
if  so,  whether  the  surviving  son  had  elected  to 
take  the  property  as  real  estate  : — Held,  that 
there  had  been  an  out-and-out  conversion,  and 
that  the  son  must  be  taken  to  have  elected  to 
take  the  houses  as  real  estate.  Patter  v.  Dude- 
ney,  56  L.  T.  395— Chitty,  J. 

A  testator  by  his  will  gave  his  real  estate 
and  the  residue  of  his  personal  estate  to  trustees, 
on  trust  to  sell  his  real  estate,  and  to  convert 
and  get  in  his  residuary  personal  estate,  and  to 
stand  possessed  of  the  moneys  arising  from  both, 
on  trust  to  invest  the  same,  and  to  pay  the 
income  to  his  wife  during  her  life  or  widowhood, 
and,  after  her  death  or  second  marriage,  upon  trust 
to  divide  the  trust  funds  equally  between  such 
of  his  children  as  should  be  living  at  his  death, 
and  the  issue  of  such  of  them  as  might  be  then 
dead.  The  testator  died  in  1869.  The  wife  and  two 
infant  children  survived  him.  There  was  no  issue 
of  any  deceased  child.  Both  the  children  died 
before  the  wife,  unmarried  and  intestate,  the  one 
who  died  last  dying  in  1876.  The  wife  did  not 
marry  again,  and  she  died  in  1885  intestate.  The 
only  real  estate  of  the  testator  was  a  house,  of 
which  he  had  in  1869  agreed  to  grant  a  lease 
for  twenty  years,  with  an  option  to  the  tenant 
to  purchase  the  reversion  at  any  time  during  the 
term.  At  the  death  of  the  widow  this  option 
had  not  been  exercised,  and  the  house  had  not 
been  sold  by  the  trustees.  After  the  deaths  of 
the  children  the  widow  continued  in  receipt  of 
the  rent  of  the  house  : — Held,  that,  by  reason  of 
the  tenant's  option  to  purchase  the  house,  the 
widow's  continued  receipt  of  the  rent  was  no 
evidence  of  an  election  by  her  to  take  the  pro- 
perty as  real  estate,  and  that  on  her  death  it 
descended  as  personalty  to  her  next  of  kin. 
Gordon,  In  re  (6  Ch.  D.  631)  distinguished. 
Lewi*,  In  re,  Foxwell  v.  Lewi*,  30  Ch.  D.  654  ; 
55  L.  J.,  Ch.  232  ;  53  L.  T.  387  ;  34  W.  R.  150 
— Pearson,  J. 


CONVEYANCE. 

Fraudulent  Conveyances.] — See  Fraud. 

Conveyancing  and  Law  of  Property  Act,  1881.] 
— See  Exbctjtob  and  Administrator— Hus- 
band and  Wife— Mobtgage— Vendob  and 
Purchaser,  &c. 


CONVICTION. 

See  CRIMINAL  LAW— JUSTICE  OF  THE 

PEACE. 


I 


COPYHOLDS. 

Fines  on  Admission— Custom.] — There  is  no 
general  copyhold  law  that,  in  manors  in  which  a 
fine  is  only  payable  on  the  first  admittance  of  a 
tenant,  a  purchaser  of  several  distinct  copyhold 
tenements  under  one  disposition — whether  a  will, 
or  surrender,  or  otherwise — is  entitled  as  of  right 
to  split  his  admittance,  i.e.,  is  entitled  to  compel 
the  lord  of  the  manor  to  admit  him  to  any  one 
or  more  of  such  several  tenements,  and  to  take 
admittance  to  the  others  at  any  subsequent  time, 
as  and  when  he  pleases.  A  special  custom  in  a 
manor,  that  a  purchaser  of  several  distinct  copy- 
hold tenements  under  one  disposition,  must  take 
admittance  to  all  at  one  and  the  same  time,  and 
pay  one  general  fine  in  respect  of  all,  is  good, 
Such  a  special  custom  may  be  evidenced  bj  a 
uniform  course  of  practice  or  usage  in  the  manor 
for  a  number  of  years,  although  it  does  not 
otherwise  appear  either  on  the  court  rolls,  or  in 
any  custumal  or  other  record  of  the  manor. 
Johnstone  v.  Spencer  (Earl),  30  Ch.  D.  581 ;  53 
L.  T.  502  ;  34  W.  R.  10— North,  J. 

Improved  Annual  Value.] — A  lord,  who 

is  entitled  by  the  custom  of  the  manor  to  a 
reasonable  fine  upon  admission  to  a  copyhold 
tenement,  may  demand  and  recover  such  fine 
by  the  description  of  the  improved  annual  value 
for  a  certain  number  of  years  of  the  tenement  to 
which  the  admittance  relates,  and  without  stat- 
ing in  money  the  precise  amount  of  the  fine. 
Fraser  v.  Mason,  11  Q.  B.  D.  574  ;  52  L.  J, 
Q.  B.  643  ;  49  L.  T.  761 ;  32  W.  R.  421— C.  A 

Double  Fine — Sale  under  Settled  Land 

Act.] — A  copyholder  who  had  been  admitted  to 
the  copyhold,  to  him  and  his  heirs,  died,  leaving 
a  will  by  which  he  devised  it  to  trustees  upon 
trust  to  pay  the  rents  to  his  widow  for  life. 
Shortly  after  his  death  the  widow  sold  the  pro- 
perty under  the  powers  of  the  Settled  Land  Act, 
1882.  The  trustees  had  not  been  admitted.  The 
lord  of  the  manor  claimed  to  be  paid,  in  addition 
to  the  fine  payable  by  a  purchaser  on  admittance, 
the  fine  which  would  have  been  payable  if  the 
trustees  had  been  admitted  : — Held  (dissentiente 
Fry,  L.J.),  that  the  lord  could  only  claim  one 
fine.    Naylor  and  Spending  Contract,  In  re, 

34  Ch.  D.  217  ;  56  L.  J.,  Ch.  453  ;  56  L.  T.  132 ; 

35  W.  R.  219— C.  A. 

Surrender— Assignment  of  Equitable  In- 
terest.]— The  lord  of  the  manor  is  entitled  to  a 
fine  in  respect  only  of  a  transmission  of  the 
legal  estate  in  copyholds,  and  cannot  claim  a 
fine  in  respect  of  any  devolution  of  the  equitable 
title  where  the  legal  estate  remains  in  the  penon 
who  has  been  already  admitted  tenant  on  the 
roll.    E.,  as  customary  heir  of  M.,  was  in  1848 
admitted  as  tenant  on  the  rolls  of  a  manor,  in 
respect  of  copyholds  which  by  M.'s  will  the 
trustees   thereof   were   directed    to   selL    The 
trustees  contracted  to  sell  the  copyholds  to  A, 
but  before  completion  A.  was  married  to  X. 
Subsequently,  in  December,  1849,  the  copyholds 
were  conveyed  to  the  trustees  of  A.'s  marriage 
settlement.     E.  joined  in  the  conveyance  and 
thereby  covenanted  to  surrender  to  the  uses  of 
such  settlement,  and  in  pursuance  of  his  cove- 
nant surrendered  in  May,  1850,  to  the  use  of 


497 


COPYHOLDS. 


49» 


inch  persons  as  the  trustees  of  A.'s  settlement 
should  appoint.  Upon  the  death  of  X.,  A. 
became  absolutely  entitled  to  the  copyholds,  and 
by  deed  of  1853,  which  recited  incorrectly  that 
no  surrender  had  been  made  by  E.,  the  trustees 
of  the  settlement  granted,  bargained,  and  sold 
the  copyholds  to  A.,  and  E.  joined  in  this  deed 
and  covenanted  to  surrender  to  the  use  of  A. 
The  surrender  was  not  acted  upon,  and  by  a 
settlement  of  1854  on  the  second  marriage  of  A. 
with  YM  she  purported  to  assign  her  equitable 
interest  in  the  copyholds  to  E.,  F.,  and  G.  on 
trust  for  sale.  A.  died  in  1856,  leaving  E.,  who 
had  remained  tenant  on  the  rolls,  her  customary 
heir.  E.  survived  F.  and  6.,  leaving  executors 
on  whom,  under  the  Conveyancing  Act,  1881, 
s.  90,  his  estate  in  the  copyholds  devolved  ;  and 
they  had  been  admitted.  Three  fines  were 
claimed  by  the  lord  ;  1.  In  respect  of  the  quasi 
admittance  of  A.  as  appointed  under  the  deed  of 
1863;  2.  In  respect  of  the  quasi  admittance 
upon  A.'s  death  of  E.,  as  her  customary  heir ;  3. 
Is  respect  of  the  legal  estate  which  devolved 
upon  E/s  executors : — Held,  that  the  deed  of 
1853  was  a  mere  assignment  of  the  equitable 
interest  in  the  copyholds  to  A.,  and  could  not 
be  construed  as  operating  by  appointment  to 
transfer  the  legal  estate  from  E.  to  A. ;  and 
accordingly  that  as  the  legal  estate  of  E.,  the 
tenant  on  the  roll,  remained  unaffected  by  the 
equitable  devolutions  of  title,  the  only  fine  pay- 
able was  in  respect  of  the  admittance  of  the 
statutory  heirs  of  E. : — Held,  also,  that  a  cove- 
nant for  value  to  surrender,  though  binding  as 
between  surrenderor  and  surrenderee,  cannot  be 
enforced  by  the  lord,  so  as  to  enable  him  to 
compel  a  new  admittance  and  a  fine  in  respect 
thereof.  Hail  v.  Bromley,  35  Ch.  D.  642 ;  56 
L.  J„  Ch.  722 ;  66  L.  T.  683 ;  35  W.  R.  659— 
C.A. 

Cistomary  Heiress  of  Devisee  of  Surviving 
Traits* — Bight  of  Escheat] — A  testatrix  who 
died  in  1861  devised  her  copyhold  property  to  a 
trustee  in  trust  to  pay  the  rents  and  profits  to 
J.  King  for  life,  ana  after  her  death  to  certain 
charitable  purposes  which  were  void  under  the 
Mortmain  Acta.  The  testatrix  died  without 
hens.  The  trustee  named  in  the  will  refused  the 
trust,  and  two  trustees  were  appointed  by  order 
of  the  court  in  1853,  who  were  admitted  upon 
the  court  rolls  to  hold  upon  the  trusts  of  the 
wilL  One  trustee  died  in  1873,  and  the  surviv- 
ing trustee,  who  died  in  1877,  devised  his  trust 
estate  to  two  trustees,  neither  of  whom  was  ad- 
mitted to  the  copyholds.  The  survivor  of  these 
trustees  made  no  devise  of  his  trust  estates,  and 
awd  leaving  his  youngest  daughter,  Janet  Haw- 
kins, his  customary  heiress  according  to  the 
custom  of  this  manor.  The  tenant  for  life  under 
the  will  died  in  1883  :— Held,  that  Janet  Haw- 
kins who  claimed  by  escheat  and  under  a  result- 
ing trust  was  entitled  to  be  admitted  as  tenant  to 
the  copyhold  property  for  her  own  benefit  as 
against  the  lord  of  the  manor.  Qallard  v. 
Hawkin*,  27  Ch.  D.  298  ;  53  L.  J.,  Ch.  834  ;  51 
L  T.  689 ;  33  W.  B.  31— Pearson.  J. 

bframehisement — Acknowledgment  of  Bight 
ts  axtdmee  Documents — Lands  Clauses  Act.] — 
Copyhold  land  having  been  taken  by  a  corpora- 
tion under  the  powers  of  the  Lands  Clauses  Act, 
and  a  draft  conveyance  from  the  copyholder 
being  in  the  course  of  settlement,  the  corporation 


applied  to  the  lord  of  the  manor,  under  s.  96,  for 
enfranchisement  upon  certain  terms,  which  were 
agreed  to.  In  settling  the  draft  enfranchisement 
deed,  the  corporation  claimed  to  have  from  the 
lord  and  his  trustee  jbo  uses  an  acknowledgment 
of  the  right  of  the  corporation  to  production  of  the 
documents  of  title  to  the  manor,  and  of  the  court 
rolls  relating  to  the  hereditaments  enfranchised, 
and  to  delivery  of  copies  thereof,  and,  also  from 
both,  an  undertaking  for  the  safe  custody  of  the 
same : — Held,  that  the  corporation  were  entitled 
to  no  more  than  an  acknowledgment  by  the  lord 
and  his  trustee  of  the  right  of  the  corporation  to 
the  production  of  the  documents  of  title  to  the 
manor,  and  of  the  court  rolls,  so  far  as  they 
related  to  the  hereditaments  enfranchised,  and 
to  delivery  of  copies  thereof ;  and  an  undertaking 
by  the  lord  alone  for  safe  custody.  Agg-  Gardner y 
In  re,  25  Ch.  D.  600 ;  53  L.  J.,  Ch.  347  ;  49  L.  T. 
804  ;  32  W.  R.  366— V.-C.  B. 

Whether  the  corporation  were  entitled  to  so* 
much  as  the  above,  quaere.    Tb, 

Disentailing  Deed— Disposition— Entry  on 
Court  Bolls.] — A  deed  intended  to  operate  as 
a  disentailing  assurance  of  copyholds  must,  in 
order  to  be  operative,  be  a  disposition  and  not 
a  mere  declaration  of  trust,  and  must  be  entered 
on  the  court  rolls  of  the  manor  within  six 
months  of  its  execution.  Green  v.  Patersony. 
32  Ch.  D.  95  ;  56  L.  J.,  Ch.  181  ;  54  L.  T.  738  ; 
34  W.  R.  724— C.  A. 

Devolution — Death  of  Sole  Trustee  between. 
Conveyancing  Act,  1881,  and  Copyhold  Act, 
1887.]— The  effect  of  s.  45  of  the  Copyhold  Act, 
1887,  is  to  repeal  entirely  s.  30  of  the  Convey- 
ancing and  Law  of  Property  Act,  1881,  as  regards 
copyholds,  so  that,  if  a  sole  trustee  of  copyholds 
had  died  between  the  commencement  of  the 
Conveyancing  and  Law  of  Property  Act  and  the 
passing  of  the  Copyhold  Act,  the  legal  estate  in 
the  copyholds,  which,  by  virtue  of  8.  30,  had  on 
his  death  devolved  upon  his  personal  representa- 
tives, was  on  the  passing  of  the  Copyhold  Act 
divested  from  them,  and  vested  in  his  customary 
heir  or  devisee.  But  the  validity  of  any  disposi- 
tion of  the  property  made  by  the  personal  repre- 
sentatives before  the  passing  of  the  Copyhold 
Act  would  be  unaffected  by  that  Act.  Mills9 
Tru*U,  In  re,  37  Ch.  D.  312  ;  57  L.  J.,  Ch.  466  ; 
58  L.  T.  620  ;  36  W.  R.  393— North,  J.  Affirmed 
on  other  grounds,  40  Ch.  D.  14  ;  60  L.  T.  442  ; 
37  W.  R.  81— C.  A. 

Encroachment  —  Waste  —  Bont  —  Presumed 
Grant  allowing  Buildings.] — In  1739  articles 
of  agreement  were  entered  into  between  the* 
lord  and  freehold  tenants  of  a  manor,  by  the 
eighth  clause  of  which  it  was  agreed  that  no- 
other  part  of  the  wastes  of  the  said  manor  should 
at  any  time  thereafter  be  enclosed  or  built  upon, 
unless  by  the  mutual  consent  of  the  lord  of  the 
manor  for  the  time  being,  and  of  the  greater 
part  in  number  and  value  of  the  freehold  tenants 
of  the  said  manor,  under  their  hands  and  seals  'r 
and  in  case  of  any  improvements  and  enclosures- 
by  such  consents  as  aforesaid,  it  was  agreed  that 
the  same  and  all  profits  and  advantages  arising 
therefrom  should  belong  to  and  be  divided 
between  the  lord  and  freehold  tenants  in  the 
proportions  therein  mentioned.  The  articles  of 
agreement  were  confirmed  by  a  private  act  of 
Parliament  passed  in  the  same  year.    Persons 


499 


COPYBIGHT. 


500 


were  appointed  by  the  lord  and  freeholders  to 
receive  too  rents  on  their  behalf,  and  books  were 
kept  showing  how  the  rents  were  received  and 
divided,  in  accordance  with  the  provisions  of 
the  articles.  An  entry  appeared  in  one  of  these 
books  in  1803  that  one  K.  paid  a  rent  of  11.  U. 
in  respect  of  certain  premises  which  were  there 
described  as  a  stable;  and  it  appeared  from 
entries  in  the  books  that  he  continued  to  do  so 
down  to  1808,  when  the  property  then  in  ten- 
ancy was  mentioned  as  held  by  D.  at  a  yearly 
rent  of  21.  12*.  6d.  In  1811  D.  was  entered  as 
holding  a  coal  warehouse  at  the  rent  of  41. 10*. 
"  now  and  in  future."  In  1813  D.  paid  the  same 
rent  in  respect  of  a  coal  and  corn  warehouse,  and 
that  rent  was  paid  by  D.  and  his  successors  in 
title  until  just  before  this  action  was  brought. 
In  1816  D.  sold  or  mortgaged  the  property  for 
2991.  to  B.,  who  subsequently  re-conveyed  it  to 
him  for  the  same  amount.  In  1829  D.  conveyed 
the  property  by  lease  and  re-lease  to  K.  for 
1,000Z.  He  mortgaged  it  to  S.  by  feoffment  for 
1,0002.,  and  subsequently  became  bankrupt,  and 
the  equity  of  redemption  vested  in  his  assignees, 
in  1836  the  assignees  and  S.  conveyed  the  pro- 
perty to  J.  S.  for  1,4402.  In  1838  J.  S.  leased 
the  proDerty  to  R.  The  property  was  described 
in  the  lease  as  part  of  the  waste  of  the  manor, 
■and  it  was  provided  that  the  lessee  was  to  pay 
42. 10*.  per  annum,  and  any  future  rent  which 
might  become  payable,  to  the  lord  and  free- 
holders. New  buildings  were  from  time  to  time 
built  on  the  property.  The  defendant  became 
entitled  to  the  premises  under  the  will  of  his 
father  J.  S.  Questions  having  arisen  as  to  the 
title  to  the  property,  the  defendant  claiming  to 
be  entitled  in  fee-simple,  the  lord  and  the  free- 
holders brought  this  action  to  recover  possession 
of  it : — Held,  that  (1)  a  consent  to  the  enclosure 
of  the  property  in  question,  in  accordance  with 
clause  8  of  the  articles,  might  under  the  circum- 
stances be  fairly  assumed,  but  the  result  of  pos- 
session under  such  consent  was  that  a  tenancy 
from  year  to  year  was  created;  (2)  that  the 
feoffment  by  K.  to  S.  in  1829  did  not  tortiously 
pass  the  fee  to  S. ;  (3)  that  there  was  no 
evidence  that  the  tenants  were  under  any  mis- 
apprehension as  to  title,  or  had  built  under 
misapprehension,  or  that  the  lord  or  freeholders 
were  aware  of  any  such  misapprehension  of  titles, 
and  therefore  the  defendant  was  not  entitled  to 
equitable  relief.  Weller  v.  Stone,  54  L.  J.,  Ch. 
497 ;  53  L.  T.  361  ;  33  W.  R.  421— C.  A. 


necessary    Parties  —  Mining   Lease  — 

Lessor.} — In  an  action  by  a  copyholder  to  re- 
strain the  working  of  coal  under  his  land  by  A., 
who  claimed  to  be  entitled  to  do  the  acts  com- 
plained of  by  virtue  of  a  lease  from  B.,  the  lord 
of  the  manor,  B.  was  by  amendment  added  as  a 
defendant,  on  the  allegation  that  he  claimed  the 
right  by  himself  and  his  lessees  to  work  the  coal ; 
that  he  justified  the  acts  of  A.,  and  that  he  had 
received  and  claimed  to  be  entitled  to  receive 
from  A.  rents  and  royalties  in  respect  of  such 
wrongful  working.  On  summons  by  B.  under 
Rules  of  Supreme  Court,  1883,  Ord.  XXV.  r.  4, 
that  the  amended  statement  of  claim  might  be 
struck  out  as  against  him  on  the  ground  that  it 
disclosed  no  reasonable  cause  of  action  against 
him,  and  that  the  action  might  be  dismissed  as 
against  him  :— Held,  that  the  lessor  had  been 
properly  added    as   a   defendant.      Shafto  v. 


Bolekow,  Vavghan,  and  Co.,  34  Ch.  D.  726 ; 
56  L.  J.,  Ch.  735  ;  66  L.  T.  608 ;  36  W.  R.  562 
— Chitty,  J. 


COPYBIGHT. 

Dramatio  Piece— Infriagwwnt— Gratnitoiii 
Performance  in  Private  Boom.  ]— The  defendant 
and  others  joined  in  representing  a  dramatic 
piece  in  the  board  room  of  a  hospital,  without 
the  consent  of  the  proprietor  of  the  copyright  in 
the  drama.  The  performance  was  merely  far 
the  entertainment  of  the  nurses,  attendants  and 
others  connected  with  the  hospital,  who  were 
admitted  free  of  charge :  —  Held,  (Fry,  LJ, 
dissenting)  that  the  room  where  the  drama  was 
represented  was  not  a  place  of  public  entertain- 
ment, and  consequently  that  the  defendant  was 
not  liable  to  damages  or  penalties  under  3  &4 
Wili  4,  c.  15,  ss.  1,  2.  Duck  v.  Bates,  13  Q.  B.  D. 
843;  53  L.  J.,  Q.  B.  338;  50  L.  T.  778;  32  W.R. 
813  ;  48  J.  P.  501—C.  A. 

Musical— Right  of  Representation— Abaence 
of  Consent  in  Writing.]— By  3  &  4  Will  4,  c  15, 
ss.  1  and  2,  it  is  in  substance  provided  that  the 
author  of  any  dramatic  piece  or  entertainment, 
or  the  assignee  of  such  author,  shall  have,  as  his 
own  property,  the  sole  liberty  of  representing 
such  production,  or  causing  it  to  be  represented, 
at  any  place  of  dramatic  entertainment  during 
certain  periods  mentioned  in  the  act,  and  shall 
be  deemed  the  sole  proprietor  thereof,  and  that, 
if  any  person  shall,  during  the  continuance  of 
such  sole  liberty  as  aforesaid,  "  contrary  to  the 
intent  of  this  act,  or  right  of  the  author  or  his 
assignee,"  represent  such  production,  or  cause  it 
to  be  represented,  without  the  consent  in  writing 
of  the  author  or  other  proprietor,  at  any  place 
of  dramatic  entertainment,  every  such  offender 
shall  be  liable  for  each  and  every  such  repre- 
sentation (among  other  alternatives)  to  the  pay- 
ment of  an  amount  not  less  than  406.  to  the 
author  or  other  proprietor.  By  6  &  6  Vict,  c  45, 
ss.  20  and  21,  the  above  provisions  are  extended 
to  musical  compositions,  and  it  is  provided  that 
the  sole  liberty  of  representing  dramatic  pieoei 
and  musical  compositions  shall  endure  and  be 
the  property  of  the  author  and  his  assigns  for 
the  term  in  the  Act  provided  for  the  duration  of 
copyright  in  books. — The  plaintiff  was  employed 
by  the  defendant,  the  proprietor  of  a  music-hall, 
as  the  conductor  of  the  orchestra,  at  a  weekly 
salary,  and  had  been  in  the  habit  of  composing 
the  music  for  ballets  performed  there,  receiving 
payments  of  varying  amounts  from  the  defendant 
in  respect  of  such  compositions.  The  plaintiff 
composed  the  music  for  a  Christmas  ballet,  to 
be  performed  at  the  defendant's  music  hall,  but 
while  the  piece  was  running  he  threw  up  his 
engagement  as  conductor,  and  took  away  the 
musical  score  and  band-parts  necessary  for  the 
performance  of  the  music  It  was  subsequently 
arranged  orally  between  the  plaintiff  and  the 
defendant  that  the  plaintiff  should  give  up  the 
score  and  band-parts  to  the  defendant  in  con- 
sideration of  a  payment  of  202.  by  the  defendant 
The  defendant  afterwards  continued  to  perform 
the  piece  with  the  plaintiffs  music,  and  the 
plaintiff  brought  an  action  to  recover  penalties 


m 


COPYRIGHT. 


502 


in  respect  of  such  subsequent  performances.  The 
jury  found  that  the  music  composed  for  the 
ballet  bj  the  plaintiff  was  a  substantial,  inde- 
pendent, musical  composition,  and  that  the 
plaintiff  had  not  sold  his  rights  therein  to  the 
defendant : — Held,  that,  in  the  absence  of  any 
assignment  or  consent  to  the  representation  of 
the  composition  in  writing  given  by  the  plaintiff, 
the  performances  were  contrary  to  the  right  of 
toe  author,  and  the  action  was  maintainable. 
Shepherd  v.  Conquest  (17  C.  B.  427)  followed. 
EUe*  v.  Lake,  20  Q.  B.  D.  378  ;  67  L.  J.,  Q.  B. 
227 ;  59  L.  T.  100  ;  36  W.  R.  277— C.  A. 

KeUrea— Sale,  after  Registration,  of  Copies 
aids  before  Registration.]— The  plaintiffs  were 
the  owners  of  a  drawing  which  they  entrusted 
in  confidence  to  the  defendant  in  Germany  to 
produce  certain  copies.  The  defendant  executed 
the  work,  and  also  made  other  copies  for  himself 
and  sent  them  to  England.  Subsequently  the 
plaintiffs  registered  their  copyright  in  the  draw- 
ing under  25  k  26  Vict.  c.  68.  After  such  regis- 
tration the  defendant,  without  the  consent  of 
the  plaintiffs,  sold  the  copies  which  he  had  made 
for  himself  and  sent  to  England  before  the  re- 
gistration. In  an  action  by  the  plaintiffs  for  an 
isjonction  and  to  recover  penalties  and  damages, 
nnder  the  25  &  26  Vict.  c.  68,  ss.  6  and  11  :— 
Held,  that  the  plaintiffs  were  entitled  to  an 
injunction  and  damages  for  breach  of  contract 
and  good  faith,  and  (dissentiente  Lopes,  L.J.) 
to  an  injunction,  damages,  and  delivery  of  pirated 
copies  nnder  the  statute,  notwithstanding  that 
by  a.  4  no  proprietor  was  to  be  entitled  to  the 
benefit  of  the  Act  until  registration,  and  no 
action  was  to  be  sustainable  in  respect  of  any- 
thing done  before  registration ;  but  were  not 
entitled  to  penalties,  on  the  ground  that  pro- 
duction abroad  is  not  unlawful  within  the  mean- 
ing of  s.  6.  Tvek  v.  Priester,  19  Q.  B.  D.  629 ; 
56  L.  J.,  Q.  B.  553  ;  36  W.  R.  93  ;  62  J.  P.  213— 
C  A    Reversing  57  L.  T.  110— D. 

"Book  "—What  is— "Cattle  Album."] -An 
album  for  holding  photographs,  with  pictorial 
borders  containing  views  of  castles,  with  short 
descriptions  attached,  is  not  a  "book"  within 
5  k  6  Vict.,  c.  45,  s.  1,  so  as  to  be  capable  of 
obtaining  copyright  for  the  contents.  Schove  v. 
Mmtftttftl,  33  Ch.  D.  546  ;  56  L.  J.,  Ch.  892  ; 
«  L.  T.  212 ;  34  W.  R.  700— Chitty,  J. 

Barometer's  Faee.]— The  face  of  a  baro- 
meter, displaying  special  letterpress,  held  not  to 
be  capable  of  registration  under  the  Copyright 
Act,  1842,  as  not  being,  within  s.  2,  "a  book 
•epamtely  published."  Davit  v.  Comitti,  54 
I*.  J.,  Ch.  419 ;  52  L.  T.  539— Chitty,  J. 

Telegraphic  Code  for  use  of  Agents  com- 

Jflad  from  Book  of  Words.  ]— The  plaintiff  pub- 
fiabed  "The  Standard  Telegram  Code,"  a  book  of 
•oris  selected  from  eight  languages,  for  use  in 
telegraphic  transmissions  of  messages,  and  it  was 
accompanied  by  figure  cyphers  for  reference  or 
private  interpretation.  The  book  was  registered 
Jjder  the  Copyright  Act,  5  &  6  Vict.  c.  45.  The 
defendants  bought  a  copy  of  the  book,  and  com- 
pel for  their  own  use  with  its  aid  a  new  and 
^dependent  work,  as  alleged,  which  was  their 
°*n  private  telegraphic  code,  and  they  distributed 
fmmit  of  their  book  amongBt  their  agents  at 
and  abroad,  but  they  had  not  printed  their  | 


book  for  sale  or  exportation : — Held,  that  the 
defendants  had  infringed  the  copyright  of  the 
plaintiff,  and  that  a  perpetual  injunction  must 
be  granted.  Ager  v.  Peninsular  and  Oriental 
Steam  Navigation  Company,  26  Ch.  D.  637 ;  53 
L.  J.,  Ch.  589 ;  50  L.  T.  477  ;  33  W.  R.  116— 
Kay,  J. 

Public  Lecture,  Publication  of  Shorthand 
Votes  of.] — N.,  an  author  and  a  lecturer  upon 
various  scientific  subjects,  delivered  from  memory, 
though  it  was  in  manuscript,  a  lecture  at  the 
Working  Men's  College  upon  "  The  Dog  as  the 
Friend  of  Man."  The  audience  were  admitted  to 
the  room  by  tickets  issued  gratuitously  by  the 
committee  of  the  college.  P.,  the  author  of  a 
system  of  shorthand  writing,  and  the  publisher 
of  works  intended  for  instruction  in  the  art  of 
shorthand  writing,  attended  the  lecture,  and 
took  notes,  nearly  verbatim,  in  shorthand,  of  it, 
and  afterwards  published  the  lecture  in  his 
monthly  periodical,  "The  Phonographic  Lec- 
turer.'1 On  motion  for  an  injunction  to  restrain 
the  publication  : — Held,  that  where  a  lecture  of 
this  kind  is  delivered  to  an  audience  limited  and 
admitted  by  tickets,  the  understanding  between 
the  lecturer  and  the  audience  is  that,  whether 
the  lecture  has  been  committed  to  writing 
beforehand  or  not,  the  audience  are  quite  at 
liberty  to  take  the  fullest  notes  for  their  own 
personal  purposes,  but  they  are  not  at  liberty  to 
use  them  afterwards  for  the  purpose  of  publish- 
ing the  lecture  for  profit ;  and  the  publication 
of  the  lecture  in  shorthand  characters  is  not 
regarded  as  being  different  in  any  material  sense 
from  any  other;  and  injunction  accordingly. 
Abernethy  v.  Hutchinson  (1  H.  it,  T.  28)  dis- 
cussed. Nicolt  v.  Pitman,  26  Ch.  D.  374 ;  53 
L.  J.,  Ch.  562  ;  50  L.  T.  254  ;  32  W.  R.  631 ;  48 
J.  P.  649— Kay,  J. 

Lectures  in  Class-Soom  by  Professor— Re- 
straining Publication.] — A  professor  of  a  univer- 
sity who  delivers  orally  in  his  class-room  lectures 
which  are  his  own  literary  composition  does  not 
communicate  such  lectures  to  the  whole  world, 
so  as  to  entitle  any  one  to  republish  them  with- 
out the  permission  of  the  author.  Caird  v.  Sime, 
12  App.  Cas.  326 ;  57  L.  J.,  P.  C.  2  ;  57  L.  T. 
634  ;  36  W.  R.  199— H.  L.  (8c.). 

The  appellant,  a  professor  of  a  Scottish  uni- 
versity, delivered  lectures  in  his  class-room  as 
part  of  his  ordinary  course  to  students  of  the 
university,  who  were  admitted  on  payment  of 
the  prescribed  fees; — Held  (Lord  FitzGerald 
dissenting),  that  such  delivery  of  the  lectures 
was  not  equivalent  to  a  communication  of  them 
to  the  public  at  large,  and  that  the  appellant 
was  entitled  to  restrain  other  persons  from  pub- 
lishing them  without  his  consent,    lb. 

Hovel  —  Dramatisation  of  —  Multiplying 
Copies.] — The  defendant  dramatized  the  novel, 
"  Little  Lord  Fauntleroy,"  and  caused  his  play 
to  be  performed  on  the  stage.  The  infringe- 
ment of  copyright  complained  of  was  that, 
for  the  purpose  of  producing  the  play,  the 
defendant  made  four  copies  of  it,  one  for  the 
Lord  Chamberlain  and  three  for  the  use  of  the 
performers,  either  in  MS.  or  by  the  aid  of  a 
typewriter.  Very  considerable  passages  in  the 
play  were  extracted  almost  verbatim  from  the 
novel.  The  defendant  claimed  the  right  to 
make  more  copies  if  it  should  be  necessary  to 


508 


COPYEIGHT. 


504 


enable  him  to  give  further  representations  of 
the  play  in  London  and  elsewhere :— Held,  that 
what  had  been  done  by  the  defendant  constituted 
an  infringement  of  the  plaintiff's  copyright,  and 
that  they  were  entitled  to  an  injunction  to 
restrain  the  defendant  from  printing  or  other- 
wise multiplying  copies  of  this  play  containing 
any  passages  from  the  plaintiffs  book  .-—Held, 
also,  that  all  passages  from  the  plaintiffs  book 
in  the  four  copies  must  be  cancelled.  Warne  v. 
Seebohm,  39  Ch.  D.  73  ;  57  L.  J.,  Ch.  689 ;  58 
L.  T.  928  ;  36  W.  JR.  686— Stirling,  J. 

Hewtpaper,  using  Fame.]— See  Tbade. 

Copyright  in  Designs.]— See  Trade. 

Kegistration—  «  Publisher  " —Who  is.]— Re- 
gistration of  a  copyright  is  bad,  if  the  name 
watered  as  that  of  "  the  publisher  "  is  not  that  of 
the  first  publisher.     Weldon  v.  Dicks  (10  Ch.  D 
247)  followed.     Coote  v.  Judd,  23  Ch.  727  ;  53 

v   £\>Cb"  36  ;  48   L'   T*   205  5  31    W-  R.   *23— 
v.-C.  B. 

What  may  be.]— See  supra. 


"  Time  of  First  Publication  "—Proprietorship 
in  Articles  and  Reports.]— To  entitle  the  pro- 
prietor of  a  book  or  periodical  to  maintain  an 
action  for  infringement  of  copyright,  it  is  neces- 
sary that  the  entry  on  the  register  at  Stationers' 
Hall,  under  s.  13  of  the  Copyright  Act,  1842, 
should  not  only  state  the  precise  title  of  the  work, 
but  also  the  "  time  of  first  publication."  It  is 
not  sufficient  to  enter  the  month  and  the  year 
only  ;  but  the  actual  day  of  the  month  must  be 
given,  in  order  that  it  may  be  known  when  the 
term  of  forty-two  years  "  from  the  first  publica- 
tion," allowed  by  s.  3  of  that  statute  as  the 
period  of  copyright,  commenced  and  will  termi- 
nate. To  entitle  the  proprietor  of  a  book  or 
periodical  to  maintain  an  action  for  infringe- 
ment of  copyright  in  respect  of  articles,  reports, 
or  other  contributions  supplied  to  him  by  persons 
employed  and  paid  by  him  for  that  purpose,  he 
must,  under  s.  18  of  the  Act,  prove  that  he  has 
actually  paid  for  such  articles,  reports,  or  other 
contributions.  Collingridge  v.  Emmott.  57  L.  T. 
864— Kay,  J. 

„ Patent  alleged.]—  Where  the  date  of  the 

first  publication  of  an  illustrated  catalogue,  being 
a  reprint  with  additions  of  catalogues  duly  regis- 
tered in  1880  and  1882,  was  given  on  registration 
as  the  22nd  June,  1886 :— Held,  that  it  was  a 
correct  statement  as  to  the  first  publication  of 
the  new  pages,  and  that  the  description  in  the 
catalogue  of  the  articles  as  •'  patent,'f  subsequent 
to  the  expiration  of  the  patent,  on  the  31st  July, 
1885,  did  not  take  away  the  plaintiffs  copyright 
in  the  part  of  the  catalogue  which  was  correctly 
stated,  and  that  the  plaintiff  was  entitled  to  an 
injunction  to  prevent  any  further  publication  of 
books  by  the  defendant,  so  far  as  they  contained 
an  infringement  of  the  copyright  of  the  plaintiff 
in  his  illustrated  catalogue  of  Aug.  1880,  or  in 
the  additions  made  to  that  catalogue  in  the 
edition  of  1885.  Hayward  v.  Lely,  56  L.  T.  418 
—Kay,  J. 

Hon-regiatration  of  First  Edition— Regis- 

tration  of  Subsequent  Edition  —  Reprint  of 
Former  Edition.]— The  plaintiff  in  an  action  for 


infringement  of  copyright  in  a  book,  the  first 
edition  of  which  was  published  in  November, 
1881,  had  not,  before  commencing  such  action, 
registered  at  Stationers'  Hall  either  the  first  or 
a  second  edition  which  he  had  subsequently 
published ;  but  he  had  registered  a  third  edition,, 
which  was  in  fact  a  reprint  of  the  first  edition, 
describing  it  in  the  entry  as  a  third  edition,  and 
giving  the  time  of  the  first  publication  as  the 
22nd  of  April,  1885,  which  was  the  date  at 
which  the  third  edition  was  published :— Held, 
that  the  plaintiff  had  not  truly  stated  the  time 
of  the  first  publication  of  his  book  within  the 
meaning  of  s.  13  of  the  Copyright  Act,  1842, 
and  consequently  had  not  caused  entry  to  be 
made  of  his  book  pursuant  to  the  act,  and  was 
precluded  by  s.  24  from  maintaining  any  action 
for  infringement  of  copyright  until  he  had  made 
due  and  correct  entry  pursuant  to  a.  13.  Thmat 
v.  Turner,  33  Ch.  D.  292  ;  56  L.  J.,  Ch.  56 ;  65 
L.  T.  534 ;  35  W.  R.  177— C.  A. 

Issue  of  Writ  on  the  same  day  as  Regis- 
tration. J — The  issue  of  a  writ  in  an  action  for 
the  infringement  of  a  copyright  on  the  same  day, 
but  subsequently  to  the  registration  of  such  copy- 
right under  the  Copyright  Act,  1842,  sufficiently 
complies  with  s.  24  of  that  statute,  so  as  to 
enable  the  person  making  the  registration  to  sue 
in  respect  of  the  infringement.  Warne  v.  Zaw- 
rencet  54  L.  T.  371  ;  34  W.  R.  452— Kay,  J. 


Objections  to  Registration  —  Sufficiency  of 
Uotice— Terms.]— A  plaintiff  in  an  action  to 
restrain  the  infringement  of  his  copyright  in  a 
catalogue  put  in  evidence  the  entry  of  his  copy- 
right on  the  registry  before  the  writ  in  the 
action  was  issued.  On  the  plaintiff  being  cross- 
examined  as  to  the  validity  of  the  registration, 
the  objection  was  taken  that  the  defendant  had 
not  raised  in  his  pleadings  any  objection  to  the 
registration.  In  answer  to  that  the  defendant 
said  that  he  had  suggested  the  objection  to  regis- 
tration in  an  affidavit  filed  before  the  date  of  the 
statement  of  claim  on  a  motion  for  an  interim 
injunction.  On  trial  of  the  action  : — Held,  that 
the  affidavit  was  not  a  sufficient  notice  of  the 
objection,  nor  a  compliance  with  s.  16  of  the 
Copyright  Act,  1842,  but  that  the  case  was  one 
where  the  court  would  allow  the  defendant  to 
raise  the  objection  by  amendment  on  terms. 
The  terms  were,  that  the  defendant  was  not  to 
raise  any  objection  to  the  plaintiff  proving  the 
registration  made  since  the  action  was  brought, 
or  raise  any  objection  on  the  ground  that  such 
registration  was  not  made  before  action.  Hay- 
ward  v.  Lely,  66  L.  T.  418— Kay,  J. 

Hon-delivery  within  the  Time  prescribed.] 

— In  an  action  for  infringement  of  copyright, 
where  objections  to  the  registration  are  not 
delivered  within  the  prescribed  time,  the  action 
may  nevertheless  be  dismissed  if  a  defect  in  the 
registration  is  brought  out  from  the  plaintiff's 
evidence.     Coote  v.  Judd,  supra. 

Rectification  of  Register— Person  "aggrieved.'! 
— Under  5  &  6  Vict.  c.  45,  s.  14,  which  gives  power 
to  make  an  order  to  vary  an  entry  in  the  register 
of  copyright  under  that  act  upon  the  application 
of  any  person  who  "  shall  deem  himself  aggrieved 
by  any  "  such  "  entry,"  the  court  made  an  order 
varying  an  entry  in  a  register  of  copyright  upon 


505 


CORNWALL— CORONER. 


506 


the  application  of  the  person  who  had  caused 
the  entry  to  be  made.  Poulton,  Ex  parte,  53 
L  J.,  Q.  B.  320 ;  32  W.  R.  648— D. 

Mseevery  in  Action*  for  Breach  of.]— &* 

DISCOVERY. 


CORNWALL. 

letters  of  Administration  granted  to  Duke— 
Ivideaee.]— On  motion  for  grant  of  letters  of 
administration  of  an  intestate's  effects  to  His 
Royal  Highness  the  Prince  of  Wales,  as  Duke  of 
Cornwall,  it  is  not  necessary,  if  the  facts  are 
tafficiently  set  forth  in  the  warrant,  that  they 
should  be  verified  by  affidavit.  Griffith,  In  the 
ft**  of,  9  P.  D.  63  ;  53  L.  J.,  P.  30 ;  32  W.  R. 
M4 ;  48  J.  P.  312— Hannen,  P. 


CORONER. 

Power  to  hold  Inquest.  ]  —  A  coroner  has 
power  to  hold  an  inquest  where  be  has  reason- 
able nzspicion  that  death  is  due  to  other  causes 
than  common  illness.  Reg.  v.  Stephenson,  13 
<IB.  D.  331 ;  53  L.  J.,  M.  C.  176  ;  62  L.  T.  267  ; 
»  W.  R.  44  ;  49  J.  P.  486— C.  C.  R. 

Preventing  Inquest  being  held  —  Xisde- 
■euonr.]— It  is  a  misdemeanour  to  destroy  a 
fad  body  with  intent  to  prevent  an  inquest  in 
a  case  where  a  coroner  has  jurisdiction  to  hold 
one.  lb.  8.  P.  Reg.  v.  Price,  12  Q.  B.  D.  247  ; 
O  L.  JM  If.  C.  51  ;  33  W.  R.  46,  n. ;  15  Cox, 
C  C.  389— Stephen,  J. 

Qsaahiwg  Inquisition— Irregularity.] — Dur- 
ing an  affray  in  which  shots  were  fired  by  certain 
constables,  A.  was  killed  and  B.  and  C.  were 
■ortally  wounded  by  gunshots.  A  jury  was 
ssnunoned,  pursuant  to  the  precept  of  the 
coroner  and  sworn  upon  an  inquest  upon  the 
body  of  A.  After  viewing  the  body  the  inquest 
yes  adjourned  to  a  subsequent  day.  B.  died 
before  the  day  to  which  the  inquest  stood  ad- 
journed, and  the  jury  sworn  upon  A.'s  inquest 
were,  by  the  direction  of  the  coroner,  summoned 
to  hold  an  inquest  upon  B. ;  and  upon  C.'s  death, 
which  occurred  two  days  later,  the  same  jury 
proceeded  to  investigate  the  circumstances  at- 
tending the  deaths  of  the  three  persons,  not- 
withstanding the  protest  of  counsel  who  appeared 
for  the  constables  : — Held,  that  the  proceedings 
▼ere  irregular  and  the  inquisition  was  quashed. 
MitekeUtown  Inquisition,  In  re,  22  L.  R.,  Ir. 
W-Q.B.  D. 

,  After  the  jury  retired,  the  coroner,  upon  being 
Wormed  that  they  had  agreed,  but  before  their 
verdict  was  given,  entered  the  room  where  they 
•ere  in  consultation  and  took  their  verdict  in 
the  room  before  returning  into  open  court : — 
Held,  that  this  was  misconduct  on  the  part  of 
tee  coroner,  and  the  inquisition  was  also  quashed 
«•  this  ground.    lb. 

Depositions  will  not  be  examined.] — On 

**  implication  to  quash  a  coroner's  inquisition, 


the  court  will  not  examine  the  depositions  re- 
turned by  the  coroner  on  certiorari,  for  the  pur- 
pose of  inquiring  whether  the  evidence  was 
sufficient  to  support  the  verdict  of  the  coroner's 
jury.    lb. 

Amendment — Insufficient  Designation — 

Jurisdiction  of  Queen's  Bench  Division.] — By 

s.  20  of  the  Coroners  Act,  1887,  if  in  the  opinion 
of  the  court  having  cognisance  of  the  case  an 
inquisition  finds  sufficiently  the  matters  required 
to  be  found  thereby,  and  where  it  charges  a 
person  with  murder  or  manslaughter,  sufficiently 
designates  that  person  and  the  offence  charged, 
the  inquisition  shall  not  be  quashed  for  any 
defects,  and  the  court  may  order  the  proper 
officer  of  the  court  to  amend  any  defect  On  a 
rule  for  a  certiorari  to  bring  up  and  quash  an 
inquisition  charging  that "  the  directors  of  the 
Great  Western  Railway  Company  "  did  feloni- 
ously kill  and  slay  Q. : — Held,  that  the  Queen's 
Bench  Division  had  no  power  to  amend  the  in- 
quisition by  sufficiently  designating  the  directors 
by  name,  because  the  power  to  amend  was 
limited  by  s.  20  to  the  court  before  whom  the 
persons  charged  should  be  brought  for  trial ;  but 
that  the  jurisdiction  of  the  Queen's  Bench 
Division  to  quash  the  inquisition  for  the  irregu- 
larity on  the  face  of  it  was  left  untouched  by 
that  section.  Reg.  v.  Great  Western  Railway 
Directors,  20  Q.  B.  D.  410  ;  57  L.  J.,  M.  C.  31  ; 
58  L.  T.  765  ;  36  W.  R.  506  ;  52  J.  P.  772— D. 

Jurisdiction — Prison  for  County — Inquest  on 
Prisoner.]  —  Notwithstanding  the  transfer  of 
prisons  to  the  Secretary  of  State  by  the  Prison 
Act,  1877,  a  prison,  as  to  which  no  rules  have 
been  made  under  s.  30  of  the  Act,  and  which  at 
the  commencement  of  the  Prison  Act,  1865,  was 
a  prison  belonging  to  a  county,  is  still  the  county 
prison,  although  locally  situate  within  the  limits 
of  a  city,  and  therefore  the  jurisdiction  to  hold 
inquests  on  prisoners  dying  in  such  prisons  is  in 
the  coroner  for  the  city,  and  such  jurisdiction  is 
not  affected  by  8. 171,  sub-s.  1,  of  the  Municipal 
Corporations  Act,  1882.  Reg.  v.  Robinson,  19 
Q.  B.  D.  322 ;  67  L.  T.  276  ;  35  W.  R.  843  ;  52 
J.  P.  22  ;  16  Cox,  C.  C.  287— D. 


CORPORATIONS. 

I.  Municipal. 

1.  The  Franchise. 

2.  Elections. 

3.  Officers  and  their  Resignation. 

4.  Bye-laws. 

5.  Borough  Fund. 

6.  Rates. 

II.  Corporations  Gensrallt. 

1.  Constitution  and  Election, 

2.  Contracts. 

3.  Liability  for  Torts. 

I.    MUNICIPAL. 

1.    The  Franchise. 

Service  Franchise.] — Occupation  of  a  dwel- 
ling-house by  virtue  of  an  office,  service,  or  em- 


507 


CORPORATIONS— Municipal 


508 


ployment  within  the  meaning  of  the  Represen- 
tation of  the  People  Act,  1884  (48  Vict.  c.  3),  s.  3, 
is  no  qualification  for  the  municipal  franchise. 
M  Clean  v.  Prichard,  20  Q.  B.  D.  285  ;  58  L.  T. 
337 ;  36  W.  R.  508  ;  52  J.  P.  519  ;  1  Fox,  94— 
D. 

Dwelling-house,  Occupation  of  Part.] — Occu- 
pation of  part  of  a  dwelling-house,  for  the  pur- 
poses of  a  private  dwelling  only,  constitutes 
occupation  of  a  "  house  "  within  ss.  9  and  31  of 
the  Municipal  Corporations  Act,  1882,  so  as  to 
confer  the  municipal  franchise  upon  the  occupier. 
Oreenway  v.  Bachelor ',  Aldridge's  case,  12 
Q.  B.  D.  381  ;  53  L.  J.,  Q.  B.  180 ;  50  L.  T.  272  ; 
32  W.  R.  319  ;  47  J.  P.  792  ;  1  Colt,  317— D. 

Power  of  Revising  Barrister  to  Transfer 
Voter's  Hame  from  one  Division  to  another.] — 
See  Election  Law. 


2.  Elections. 

Qualification — Unqualified  Person  on  Burgess 

Bell.]— The  Municipal  Corporations  Act,  1882, 
s.  11,  sub-e.  3,  provides  that  every  person  shall 
be  qualified  to  be  elected  and  to  be  a  councillor 
who  is  at  the  time  of  election  qualified  to  elect 
to  the  office  of  councillor  : — Held,  that  a  person 
who,  though  not  qualified  to  be  a  burgess,  had 
been  enrolled  on  the  burgess  roll  and  was  there- 
fore entitled  to  vote  under  s.  51  of  the  act,  was 
not  thereby  qualified  to  be  elected  a  councillor 
under  s.  11,  sub-s.  3.  Flintham  v.  Roxburgh, 
17  Q.  B.  D.  44 ;  55  L.  J.,  Q.  B.  472  ;  54  L.  T. 
797  ;  34  W.  R.  543  ;  50  J.  P.  311— D. 

Alderman  to  be  Councillor.]— A  person 

is  not  by  reason  of  his  being  an  alderman  dis- 
qualified for  election  to  the  office  of  councillor, 
and  by  accepting  the  latter  office  he  vacates  the 
former.  Reg,  v.  Bangor  {Mayor),  18  Q.  B.  D. 
849  ;  56  L.  J.,  Q.  B.  326  ;  35  W.  R.  158 ;  61  J. 
P.  51 — C.  A.  See  S.  C.  in  H.  L.,  sub  nom. 
Pritchard  v.  Bangor  {Mayor),  infra. 


Composition  with  Creditors.] — S.  served 

as  town  councillor  for  the  St.  T.  Ward  from  1877 
to  July  21, 1880,  when  he  left  at  the  office  of  the 
town  clerk  a  notice  of  resignation,  addressed  to 
the  mayor  and  council.  No  action  was  taken 
thereon  by  the  council,  and  no  fine  paid  or 
tendered  by  S. ;  S.  did  not  sit  in  council  or  vote 
after  the  date  of  the  notice.  On  the  following 
day  S.  filed  a  petition  for  liquidation.  In 
August  a  composition  was  accepted  by  his 
creditors.  S.  did  not  pay  his  debts  in  full.  At 
an  election  of  town  councillor  for  the  St.  T. 
ward  in  November,  1884,  8.  was  returned.  The 
objection  was  then  taken  that  S.  was  dis- 
qualified, he  having  been  in  liquidation  when 
he  was  a  member  of  the  council,  and  not  having 
paid  20*.  in  the  pound  : — Held,  that  the  objec- 
tion was  valid.  Futcher  v.  Saunders,  49  J.  P. 
424— D. 


Duties  of  Returning  Offieer — Declaration 


of  Election.] — Two  candidates,  R.  and  P.,  were 
nominated  for  the  vacant  office  of  councillor  of 
one  of  the  wards  of  a  borough.  P.  objected  to 
R.'s  nomination  on  the  ground  that  R.  was  dis- 
qualified, being  an  alderman  of  the  borough 
whose  term  of  office  had  not  expired,  but  the 


mayor  disallowed  the  objection.  Throughout 
the  election*  P.  insisted  upon  his  objection,  and 
claimed  to  be  elected  whatever  the  result  of  the 
poll  might  be.  The  votes  having  been  counted 
showed  a  majority  for  R.,  and  the  returning 
officer  read  oat  the  names  and  numbers  to  the 
mayor,  who  announced  them  in  public  Having 
taken  time  to  consider  the  objection  the  re- 
turning officer  on  the  following  day  issued  a 
public  notice  stating  the  number  of  votes  given 
to  each  candidate,  and  the  objection,  and  de- 
claring P.  to  be  duly  elected.  P.  thereupon 
made  and  subscribed  the  declaration  of  accept- 
ance of  the  office  required  by  the  Municipal 
Corporations  Act,  1882,  ss.  34,  35.  R,  subse- 
quently made  and  subscribed  a  similar  declara- 
tion : — Held,  but  without  deciding  whether  an 
alderman  is  disqualified  for  election  as  councillor, 
that  the  returning  officer  had  no  jurisdiction  to 
determine  the  question  of  disqualification,  the 
proper  method  for  determining  that  question 
being  an  election  petition  as  provided  by  the 
Municipal  Corporations  Act,  1882,  s.  87,  and  the 
duty  of  the  returning  officer  being  to  count  the 
votes  and  "  forthwith  to  declare  to  be  elected  the 
candidate  to  whom  the  majority  of  votes  have 
been  given,"  as  provided  by  a.  2  of  the  Ballot 
Act,  1872  ;  that  P.  had  not  been  declared  to  be 
elected  ;  that  the  office  was  not  full ;  and  that 
he  was  not  entitled  to  a  mandamus  to  compel 
the  mayor  and  corporation  to  receive  his  votes 
at  their  corporate  meetings.  Reg.  v.  Cook*  (3 
E.  &  B.  249)  discussed.  Pritchard  v.  Bangor 
{Mayor),  13  App.  Cas.  241  ;  57  L.  J.,  Q.  B.  313 ; 

58  L.  T.  502  ;  37  W.  R.  103  ;  52  J.  P.  564— 
H.  L.  (B.). 

nomination  Paper — Signature  of  a  wen  ting 
Burgess.] — By  the  Municipal  Corporations  Act, 
1882  (45  &  46  Vict.  c.  50),  third  schedule,  Elec- 
tions, part  ii.,  rules  as  to  nomination  in  election 
of  councillors  :  1.  Every  candidate  for  the  office 
of  councillor  must  be  nominated  in  writing ;  2. 
The  writing  must  be  subscribed  in  the  case  of  a 
ward  election  by  two  burgesses  of  the  ward  as 
proposer  and  seconder,  and  by  eight  other  bur- 
gesses of  the  ward  as  assenting  to  the  nomination. 
A  nomination  paper  at  a  ward  election  was  sob- 
scribed  "  Edwin  J.  Hooper,"  "  W.  E.  Waller" 
"  R.  Turner,"  by  three  of  the  assenting  burgesses. 
Upon  the  burgess  roll  were  entered  the  names 
"Edwin  John  Hooper,"  "William  E.  Waller," 
and  "  Robert  Turner,"  the  numbers  opposite 
these  names  on  the  burgess  roll  being  the  same 
as  those  appearing  opposite  the  signature  of  the 
assenting  burgesses  on  the  nomination  paper : — 
Held,  that  the  nomination  paper  had  been  duly 
subscribed  by  the  assenting  burgesses.  Bwode* 
v.  Besley,  21  Q.  B.  D.  309  ;  57  L.  J.,  Q.  B.  478 ; 

59  L.  T.  219  ;  36  W.  R.  889  ;  52  J.  P.  536— D. 
The    provisions    of  sub-s.   2  of    s.  1  of  the 

Municipal  Elections  Act,  1875  (repealed  by  45 1 
46  Vict.  c.  50),  that  "the  nomination  paper 
shall  state  the  surname  and  other  names  of  the 
person  nominated,"  are  satisfied  if  such  paper 
contains  an  abbreviation  of  a  christian  name 
which  is  universally  understood  as  meaning  that 
name  and  none  other ;  so  that  a  nomination 
paper  which  contains  the  abbreviation  "Wm." 
as  meaning  "William,"  is  a  sufficient  state- 
ment of  the  christian  name  of  the  person  nomi- 
nated within  the  meaning  of  the  sub-section. 
Henry  v.  Armitage,  infra. 
A  nomination  paper  at  an  election  of  town 


509 


CORPORATIONS— Municipal. 


510 


onuKflloro  wis  subscribed  with  the  fall  and 
correct  name  of  "  Charles  Arthur  Barman/*  as 
in  averting  burgess ;  but  his  name  was  erro- 
oeonslj  entered  upon  the  burgess  roll  as  "  Charles 
Barman  "  onlj : — Held,  that  the  defect  was  not 
inch  as  was  remedied  by  45  k  46  Vict.  c.  60,  s.  241 , 
enacting  that  "no  misnomer  or  inaccurate  de- 
scription of  any  person  ....  named  in  any  roll 
....  required  by  this  act  shall  hinder  the  full 
operation  of  this  act  with  respect  to  that  person 
....  proTided  the  description  of  that  person 
....  be  such  as  to  be  commonly  understood." — 
The  words  "commonly  understood  "  in  this  pro- 
viso mean  "  commonly  understood  by  any  person 
nranpartng  the  nomination  paper  and  the  burgess 
rolL"  Moorhouw  v.  Linney,  15  Q.  B.  D.  273 ; 
BUT.  343 ;  33  W.  R.  704  ;  49  J.  P.  471— D. 

"Situation  of  Property." ]— The  provi- 
sos of  s.  1,  sub-s.  2,  of  the  Municipal  Elections 
Act,  1875  (repealed  by  45  *  46  Vict.  c.  50),  that 
u  the  nomination  paper  ....  shall  be  in  the 
form  No.  2  set  forth  in  the  schedule  to  the  act, 
or  to  the  like  effect,"  is  mandatory,  and  not 
directory ;  but  a  nomination  paper  signed  by  an 
enrolled  burgess,  which  contains  such  a  descrip- 
tion of  the  property  occupied  by  him  at  the  time 
of  subscribing  such  nomination  paper  as  will 
enable  a  person  to  refer  to  the  burgess  roll  to 
aae  whether  the  candidate  is  nominated  by  duly 
enrolled  burgesses,  is  a  sufficient  compliance 
with  the  words  of  the  section  "to  the  like 
effect,"  even  though  the  qualification  of  the 
barges*  is  in  respect  of  a  successive  occupation. 
Btnrj  v.  Armitage,  12  Q.  B.  D.  257  ;  53  L.  J., 
Q.B.  111  ;  50  L.  T.  4 ;  32  W.  R.  192  ;  48  J.  P. 
414-C.A. 

Bsetion  of  Aldermen— Voting  Paper,  Validity 

•tl— By  the  Municipal  Corporations  Act,  1882, 
t.  §0,  sub-s.  4,  any  person  entitled  to  vote  at  an 
election  of  aldermen  may  vote  "  by  signing  and 
personally  delivering  at  the  meeting  to  the  chair- 
nan  a  voting  paper  containing  the  surnames  and 
other  names  and  places  of  abode  and  descriptions 
of  the  persons  for  whom  he  votes."  A  voting 
paper  was  delivered,  commencing  "  I,  the  under- 
ngned,  A.  B.9"  and  ending  with  the  signature 
UC.  D. ;"  and  upon  a  petition  against  the  re- 
tain of  the  persons  elected,  the  commissioner 
received  evidence  showing  that  the  town  clerk 
had  inserted  A.  B.'s  name,  in  order  that  the 
voting  paper  might  be  used  by  him,  but  by  in- 
advertence it  was  handed  to  C.  D.,  who  signed 
sad  personally  delivered  it  to  the  chairman  with- 
oatdjacovering  the  mistake : — Held,  that  the  vote 
was  valid,  and  that  the  commissioner  was  right 
in  receiving  evidence  of  the  circumstances  under 
which  it  was  given.  Summers  v.  Moorhoute,  13 
0-  B.  D.  388 ;  53  L.  J.,  Q.  B.  564 ;  51  L.  T. 
»>;  32  W.  B.  826 ;  48  J.  P.  424— D. 

In  a  case  where  the  voting  papers  were  not 
■fned  or  personally  delivered  to  the  chairman, 
**d  did  not  contain  the  surnames  and  names  of 
nd  the  places  of  abode  and  descriptions  of  the 
pmons  for  whom  the  votes  were  given,  the  court, 
&  the  exercise  of  the  discretion  given  by  s.  225 
of  the  Municipal  Corporations  Act,  1882,  granted 
a  role  absolute  in  the  first  instance  for  a  manda- 
ina  to  hold  a  fresh  election.  Reg.  v.  Wilton 
(Jfcjw),  34  W.  B.  273— D. 

"Mayor  sleet"  Voting.]— By  the  Muni- 

«P»1  Corporations  Act,  1882  (45  *  46  Vict.  c.  50), 


a.  60  (2),  the  election  of  aldermen  shall  be  held 
immediately  after  the  election  of  the  mayor ; 
"(3)  an  outgoing  alderman,  although  mayor 
elect,  shall  not  vote."  On  the  day  appointed  for 
the  election  of  mayor  and  aldermen,  an  alderman 
was  elected  mayor,  and  thereupon  made  and 
subscribed  a  declaration  in  the  form  contained 
in  the  8th  schedule  of  the  act.  He  then  voted 
in  the  election  of  aldermen  : —  Held,  that  his 
vote  was  invalid,  for  at  the  time  when  he  voted 
he  had  not  ceased  to  be  an  "  outgoing  alderman  " 
within  8.  60  (sub-s.  3)  of  the  act.  Houmell  v. 
Suttill,  19  Q.  B.  D.  498  ;  56  L.  J.,  Q.  B.  502  ;  57 
L.  T.  102  ;  36  W.  B,  127  ;  51  J.  P.  440— D. 

Illegal  Practices— Application  for  Belief.] — 
In  order  to  support  an  application  under  s.  20 
of  the  Municipal  Elections  (Corrupt  and  Illegal 
Practices)  Act,  1884,  it  will  not  be  sufficient  that 
notice  of  intention  to  make  the  application  has 
been  advertised  in  local  papers,  but  such  notice 
should  be  published  in  such  a  manner  as  will 
ensure  a  reasonable  certainty  that  persons  in- 
terested had  notice ;  and  it  will  also  be  insufficient 
in  the  affidavits  upon  which  the  application  is 
made,  merely  to  state  that  the  act  in  respect  of 
which  relief  is  sought  arose  from  inadvertence, 
and  not  from  any  want  of  good  faith  without 
showing  some  reasonable  excuse  for  such  inad- 
vertence.   Perry,  Ex  parte,  48  J.  P.  824— D. 

Four  persons  stood  as  candidates  for  election 
at  the  municipal  election  in  the  borough  of 
Huntingdon,  held  on  the  1st  November,  1884. 
These  persons  employed  a  printer  to  print  their 
bills  and  posters.  A  fortnight  before  the  election 
Clark,  one  of  the  candidates,  went  to  the  printer, 
Wm.  Gogg8,  and  particularly  drew  his  attention 
to  s.  14  of  the  Municipal  Elections  Act,  1884. 
Goggs  in  his  turn  gave  instructions  to  his  work- 
men in  accordance  with  the  instructions  received 
by  him  from  Clark.  On  the  28th  October  Goggs 
printed,  published,  and  posted  certain  posters  on 
behalf  of  the  four  candidates  (the  applicants) 
which  did  not  bear  his  name  and  address.  When 
the  omission  was  discovered  he  took  steps  to 
rectify  it.  A  prosecution  under  the  act  was 
commenced  against  Clark  and  his  colleagues, 
and  Goggs  the  printer  of  the  posters,  but  by 
consent  the  hearing  of  the  summons  before  the 
magistrates  was  adjourned  until  an  application 
was  made  to  the  court  for  an  order  excusing  the 
applicants  from  the  consequences  of  the  omission. 
The  applicants  made  their  application  under 
s.  20,  and  filed  affidavits  to  the  effect  that  the 
issuing  of  the  posters,  without  the  printer's  name 
and  address  being  on  them,  was  due  to  inadver- 
tence, and  not  to  the  want  of  good  faith  : — Held, 
that,  under  the  circumstances,  the  applicants 
were  entitled  to  an  order  excusing  them  from 
the  consequences  of  the  omission  under  8.  20. 
Clarity  Ex  parte,  Huntingdon  Election,  In  re, 
52  L.  T.  260— D. 


Time  for.]— Where  a    candidate   at   a 


municipal  election  applied,  under  s.  20  of  the 
Municipal  Elections  (Corrupt  and  Illegal  Prac- 
tices) Act,  1884,  for  relief  against  the  conse- 
quences of  an  illegal  practice,  and  it  appeared 
that  the  applicant  had  been  elected,  and  that 
a  petition  had  been  presented  and  was  pending 
against  his  election,  the  court  refused  to  enter- 
tain his  application  for  relief,  which  was  ordered 
to  stand  over  until  after  the  trial  of  the  election 
petition.     Wilks,  Ex  parte,  16  Q.  B.  D.  114  ; 


611 


CORPORATIONS— Municipal. 


512 


65  L.  J.,  Q.  B.  576  ;  34  W.  R.  273  ;  50  J.  P.  487 
— D. 

Be  turn  of  Expenses—  Ho  Expenses  in- 
curred— Extension  of  Time.] — The  return  of 
expenses  and  the  accompanying  declaration 
which,  under  the  Municipal  Elections  Act,  1884, 
every  candidate  is  required  to  send  to  the  town 
clerk  within  twenty-eight  days  of  the  election 
of  a  town  councillor  must  be  sent  although  no 
expenses  may  have  been  actually  incurred  by 
the  candidate  in  and  about  the  election.  The 
Court  will,  upon  satisfactory  proof  that  the 
omission  happened  under  such  circumstances  as 
to  amount  to  an  authorised  excuse  under  the 
Act,  make  an  order  that  the  return  and  decla- 
ration be  made  by  the  candidate  notwithstand- 
ing the  lapse  of  the  prescribed  statutory  period 
for  making  them.  Jtobton,  Ex  parte,  18  Q.  B.  D. 
336  ;  55  L.  T.  813  ;  35  W.  R.  290  ;  51  J.  P.  199 
— D. 

Bills  without  Name  and  Address    of 


Printer — Evidence  of  Agency.]— Upon  an  infor- 
mation against  the  appellant  under  s.  14  of  the 
Municipal  Elections  (Corrupt  and  Illegal  Prac- 
tices) Act,  1884,  it  was  proved  that  the  appellant 
was  a  candidate  for  a  seat  in  the  local  board  of 
Willesden;  that  the  respondent  received  from 
his  own  servant  at  his  residence  a  printed  address 
and  letter  having  reference  to  the  election,  and 
purporting  to  be  signed  by  the  appellant,  but 
without  the  printer's  name  and  address  thereon  ; 
that  this  document  was  printed  for  publication 
by  instructions  conveyed  to  the  printer  in  a 
letter  from  the  appellant's  brother,  who  resided 
with  him  ;  and  that  the  printer  had  debited  the 
Appellant  with  the  cost  of  printing,  but  had  not 
been  paid  : — Held,  no  evidence  that  the  appel- 
lant "  printed  or  caused  to  be  printed "  the 
-document  in  question,  within  s.  14.  Bettetworth 
v.  Allingham,  16  Q.  B.  D.  44  ;  34  W.  R.  296 ; 
50  J.  P.  55— D. 

Placards  or  posters  (also  without  the  printer's 
name  or  address),  printed  by  the  instructions  of 
one  Ellis  (who  was  advertised  in  a  local  news- 
paper as  the  chairman  of  a  committee  for  pro- 
moting the  election  of  the  appellant,  and  who 
sent  the  "  copy  "  to  the  printer),  were  proved  to 
have  been  posted  about  the  district  at  Ellis's 
•expense : — Whether  this  was  evidence  of  the 
printing  and  posting  by  an  agent  of  the  ap- 
pellant, quaere  :  but,  the  justices  having  con- 
victed the  appellant  in  one  penalty  for  both  the 
■alleged  offences,  and  the  conviction  being  bad 
as  to  one  of  them: — Held,  that  it  was  bad 
altogether.    lb. 

Petition— Against  some  Candidates — Ground 
affecting  Validity  of  Whole  Election.] —An 
election  petition  may  be  presented  under  the 
Municipal  Corporations  Act,  1882,  s.  87,  against 
some  only  of  the  persons  returned  at  a  municipal 
election,  although  the  ground  of  the  petition  is 
one  affecting  the  validity  of  the  election  as  a 
whole ;  and  the  court  can  on  such  petition 
declare  the  persons  so  petitioned  against  not 
to  have  been  duly  elected.  Line  v.  Warren, 
14  Q.  B.  D.  548  ;  54  L.  J.,  Q.  B.  291  j  53  L.  T. 
446  ;  49  J.  P.  516— C.  A. 

At  a  municipal  election  to  fill  four  vacancies 
in  the  office  of  town  councillor,  A.,  B.  and  G. 
(the  respondents)  and  D.  were  elected,  and  a 
petition  was  subsequently  presented  against  the 


election  of  A.,  B.  and  C.  on  the  ground  of  the 
alleged  improper  allowance  by  the  mayor  of 
objections  to  the  nomination  papers  of  certain 
other  candidates  who  were  thereby  prevented 
from  going  to  the  poll.  An  application  by  the 
respondents  for  an  order  to  strike  the  petition  off 
the  file,  on  the  ground  that  D.,  to  whose  election 
the  same  objection  equally  applied,  was  not  made 
a  respondent  to  the  petition  and  that  no  relief 
could  therefore  be  granted  under  it,  as  it  did  not 
prove  that  the  election  as  a  whole  should  be  set 
aside : — Held  (Lopes,  J.,  diss.),  that  under  the 
Municipal  Corporations  Act,  1882,  a  petition 
might  be  presented  against  the  election  of  one 
or  more  of  the  individuals  elected,  and  that  it 
was  not  necessary  to  petition  against  all  of 
them,  or  to  seek  to  avoid  the  election  as  a  whole. 
Li ne  v.  Warren,  51  L.  T.  359  ;  48  J.  P.  454 
— D. 


Taking  off  File.]— Where  it  is  clearly 


shown  on  the  face  of  an  election  petition  that 
no  relief  can-  be  granted  under  it,  the  court 
has  power,  under  the  Act  of  1884,  to  take  it  off 
the  file.    lb. 


Time  for  Delivery  of  Particulars.]— In  a 


municipal  election  petition  the  respondent  ap- 
plied for  an  order  for  delivery  of  particulars  of 
the  alleged  corrupt  practices : — Held,  that,  in 
the  absence  of  exceptional  circumstances,  the 
petitioners  should  not  be  ordered  to  deliver 
particulars  more  than  seven  clear  days  before  the 
hearing  of  the  petition.  Lenham  v.  Barber,  10 
Q.  B.  D.  293  ;  62  L.  J.,  Q.  B.  312  ;  '31  W.  R.  428 ; 
48  J.  P.  23— D. 

Leave  to  Withdraw— Beference  to  Arbi- 


tration.]—After  a  municipal  election  of  alder- 
men at  H.,  a  petition  was  presented  by  an  un- 
successful candidate,  claiming  that  he  was 
returned  by  a  majority  of  lawful  votes.  The 
mayor  of  H.,  to  save  expense,  induced  the  peti- 
tioner and  the  returned  candidate  to  submit  the 
question  to  arbitration.  On  the  award  being 
against  the  petitioner  he  asked  leave  to  withdraw 
the  petition,  which  the  court  allowed  him  to  do. 
MaXlam  v.  Bean,  51  J.  P.  231— D. 


3.  Officers  and  theib  Resignation. 

Town  Councillor — Resignation  —  Power  to 
Withdraw.]— Under  the  Municipal  Corporations 
Act,  1882  (45  &  46  Vict.  c.  50),  s.  36,  which 
enacts  that  a  person  elected  to  a  corporate  office 
may  at  any  time,  by  writing  signed  by  him  and 
delivered  to  the  town  clerk,  resign  the  office,  on 
payment  of  the  fine  provided  for  non-acceptance 
thereof,  the  resignation  is  completed  by  the 
delivery  of  the  writing  to  the  town  clerk  and 
the  payment  of  the  fine,  and  cannot  afterwards, 
even  with  the  assent  of  the  corporation,  be 
withdrawn.  Reg.  v.  Wigan  Corporation*  14 
Q.  B.  D.  908  ;  54  L.  J.,  Q.  B.  338  ;  62  L.  T.  455 ; 
33  W.  R.  547  ;  49  J.  P.  372— D. 

Recorder  representing  County  Authority 
under  Highway  Act.] — See  Wat. 


4.  Bye-laws. 

Validity—Prohibition  of  Music  in  Street]- 
A  bye-law  made  by  the  council  of  a  borough 


513 


CORPORATIONS— Mwneypd. 


514 


under  &  23  of  the  Municipal  Corporations  Act, 
1882,  provided  that  no  person  not  being  a 
member  of  her  Majesty's  army  or  auxiliary 
forces,  acting  under  the  orders  of  his  command- 
ing officer,  should  sound  or  play  upon  any 
musical  instrument,  in  any  of  the  streets  in  the 
borough  on  Sunday  : — Held,  that  such  bye-law 
was  unreasonable  and  ultra  Tires,  and  therefore 
Toid.  Johnson  v.  Croydon  (Mayor),  16  Q.  B.  D. 
708 ;  55  L.  J.,  M.  C.  117;  54  L.  T.  295  ;  50  J.  P. 
487-D. 

Sect  90  of  the  Municipal  Corporations  Act, 
1835,  gives  powers  to  boroughs  to  make  bye- 
laws  for  the  good  rule  and  government  of  the 
borough,  and  for  the  prevention  of  all  such 
nuisances  as  are  not  already  punishable  in  a 
summary  way.  Under  these  powers  the  city  of 
Truro  made  the  following  bye-law :  "  Every 
penonwho  shall  sound  or  play  upon  any  musical 
instalment,  or  sing  or  make  any  noise  whatso- 
ever in  any  street,  or  near  any  house  within  the 
snd  borough,  after  having  been  required  by  any 
householder  resident  in  any  street  or  house,  or 
by  my  police  constable,  to  desist  from  making 
soch  sounds  or  noises,  either  on  account  of  any 
Alness  of  any  inmate  of  such  house,  or  for  any 
reasonable  cause,"  fee.  Edwin  Gay  was  sum- 
moned before  the  justices  of  Truro,  on  the  13th 
October,  1883,  and  convicted  by  them  of  an 
offence  against  the  above  bye-law,  and  fined 
2J.  2f.  and  costs.  It  was  proved  that  Gay  was  a 
captain  in  the  Salvation  Army,  and  that  on  the 
morning  of  Sunday  the  7th  October,  he  was  in 
Victoria  Square,  Truro,  playing  a  concertina, 
and  surrounded  by  a  large  crowd  ;  that  he  was 
requested  by  the  superintendent  of  police  to 
desist  from  playing  the  concertina,  but  he 
refused  to  do  so,  the  superintendent  at  the  same 
time  telling  him  that  he  had  reasonable  cause 
for  asking  him  to  desist,  as  several  complaints 
had  been  made  by  the  inhabitants.    It  was  also 

Sved  that  on  many  previous  occasions  the 
vation  Army  had  marched  through  the 
streets,  playing  musical  instruments,  tam- 
bourine*, and  triangles;  that  they  had  been 
frequently  cautioned  and  required  to  desist,  as 
many  complaints  had  been  made  of  their  pro- 
ceedings. On  a  rule  for  a  certiorari  to  remove 
the  conviction  into  this  court : — Held,  that  the 
bye-law  was  not  unreasonable,  and  that  the  con- 
viction thereunder  ought  to  stand ;  also  that 
there  was  reasonable  cause  for  calling  on  the 
prosecutor  to  desist  from  playing.  Reg.  v.  Powell, 
51 L.  T.  92  ;  48  J.  P.  740-D. 

A  bye-law  made  by  the  town  council  of  a 
borough  under  5  &  6  Will  4,  c.  76,  s.  90,  pro- 
Tided  that  every  person  who  in  any  street  should 
wand  or  play  upon  any  musical  or  noisy  instru- 
ment, or  should  sing,  recite,  or  preach  in  any 
street  without  having  previously  obtained  a 
licence  in  writing  from  the  mayor ;  and  every 
person  who,  having  obtained  such  licence,  should 
mil  to  observe,  or  should  act  contrary  to  any  of 
the  conditions  of  such  licence,  should  forfeit  and 
pay  a  sum  not  exceeding  20t .,  and  not  less  than 
!'• :— - Held,  that  the  bye-law  was  unreasonable 
and  ultra  vires,  and  therefore  void.  Munro  v. 
rat***,  57  L.  T.  366  ;  51  J.  P.  660— D. 

Prohibition  of  Juvenile  Street  Vendors.]— 

The  N.  corporation  made  a  bye-law  that  parents 
•boukl  be  liable  to  a  penalty  if  they  suffered  a 
child  to  be  selling  articles  in  the  street  after  a 
certain  hour :— field,  that  the  bye-law  was  in 


excess  of  the  powers  given  by  the  Municipal 
Corporations  Act,  1882,  as  being  too  general  and 
absolute,  and  void.  Maedonald  v.  Lochrane,  51 
J.  P.  629— D. 


5.  Bobouoh  Fund. 

Application  of— Jubilee  Festivities.  ]— A 
municipal  corporation  passed  resolutions  to  the 
effect  that  pursuant  to  s.  15,  sub-s.  4,  of  i » 
Municipal  Corporations  Act,  1882,  a  certain  sum 
should  be  paid  to  the  mayor  by  way  of  remunera- 
tion, and  that  the  mayor  should  be  requested  to 
take  such  steps  as  he  might  deem  proper  for  the 
due  celebration  of  Her  Majesty's  Jubilee.  Some 
of  the  burgesses  moved  to  restrain  the  corpora- 
tion from  applying  any  part  of  the  borough  fund 
for  this  purpose :— Held,  that  the  provisions  of 
the  Municipal  Corporations  Act,  1882,  had  not 
been  contravened,  and  that  an  interlocutory 
injunction  would  not  be  granted.  Att.-Oen, 
v.  Blackburn  (Corporation),  57  L.  T.  385— 
Chitty,  J. 

Register  of  Owners  and  Proxies,  whether 
necessary — Poll.] — The  town  council  of  a 
borough  is  not  bound,  under  the  Public  Health 
Act,  1875,  sched.  II.  r.  19,  to  keep  a  register  of 
owners  and  proxies  for  the  purpose  of  taking  a 
poll  in  the  borough  with  respect  to  the  applica- 
tion, under  35  &  36  Vict.  c.  91,  of  the  borough 
funds  in  opposing  local  and  personal  bills  in 
parliament.  Ward  v.  Sheffield  (Mayor),  19 
Q.  B.  D.  22  ;  56  L.  J.,  Q.  B.  418— Cave,  J. 


6.  Rates. 

Precept  to  Overseers— Reduced  Bate— Bail- 
way.] — By  a  local  improvement  act  "  as  to  all 
rates  made  and  levied  by  the  municipal  corpora- 
tion of  H.,  the  N.  Railway  Company  shall  be 
assessed  at  one  fourth  of  the  net  annual  value.*' 
The  H.  corporation  before  and  after  the  act 
obtained  their  borough  and  watch  rates  in 
parish  S.  by  means  of  warrants  addressed  by 
the  mayor  to  the  overseers  of  S.,  ordering  them 
to  pay  the  several  amounts  required  out  of  the 
poor  rate,  and  the  overseen  assessed  the  rate- 
payers accordingly  as  in  poor-rate  valuations : — 
Held,  that  the  H.  corporation  and  not  the  over- 
seers "  made  and  levied  "  these  watch  and  borough 
rates,  and  therefore  that  the  N.  railway  were 
assessable  in  parish  S.  only  at  one-fourth  the  net 
annual  value .  North- Eastern  Railioay  v.  Sutton 
Overseers,  51  J.  P.  165— D. 


II.    CORPORATIONS  GENERALLY, 
l.  Constitution  and  Election. 

Trade  Corporation— Number  of  Assistants- 
Charter.] — The  charter  of  a  corporation  created 
for  the  purpose  of  regulating  the  trade  of  masonry 
in  and  about  the  city  of  London  provided  that 
"  there  shall  or  may  be  four-and- twenty  or  more 
of  the  said  company  according  to  the  discretion 
of  the  master  and  wardens  for  the  time  being,  in 
manner  and  form  hereafter  in  these  presents 
expressed,  to  be  named  and  chosen,  which  shall 
be,  and  shall  be  called  the  assistants,"  and  in  case 
of  vacancies  in  the  post  of  assistants  the  charter 

S 


515 


CORPORATIONS— Generally. 


516 


provided  that  "then  and  so  often  it  shall  and 
may  be  lawful  to  and  for  the  master  and  wardens, 
and  the  remaining  part  of  the  assistants  which 
shall  then  survive  or  remain,  or  any  eight  of  them, 
at  their  wills  and  pleasures  from  time  to  time  to 
choose  and  name  one  or  more  other  or  others  of 
the  said  company,  to  be  assistant  or  assistants : 
— Held,  that  it  was  obligatory  on  the  corporation 
to  always  have  at  least  twenty-four  assistants. 
Well*  v.  Masons'  Company  of  London,  1  C.  &  B. 
621— Day,  J. 


Resolution  restricting  Power  of  nomination — 
Ultra  Vires.]— By  the  1  Geo.  4,  c  52  (one  of  the 
Acts  regulating  the  port  and  harbour  of  Cork), 
8.  21,  it  was  enacted  that  on  the  second  Tuesday 
in  June,  or  on  some  other  day  not  more  than  ten 
days  from  the  second  Tuesday  in  June  in  each 
year,  the  four  senior  commissioners  appointed 
under  act,  not  being  members  of  the  Common 
Council  of  Cork,  should  go  out  of  office  as  such 
commissioners,  and  four  other  commissioners 
should  be  chosen  to  supply  their  places  by  the 
mayor,  sheriffs,  and  commonalty  of  the  city  of 
Cork,  or  the  major  part  of  them  in  their  open 
court  duly  assembled,  and  which  court  the 
mayor  of  the  said  city  for  the  time  being 
shall,  from  time  to  time,  cause  to  be  held 
for  such  purpose  giving  six  days'  notice,  at 
the  least,  of  the  time  and  place  of  holding  the 
same,  by  advertisement  in  one  or  more  of  the 
public  newspapers  of  the  said  city  of  Cork." 
xhe  Council  of  the  city  of  Cork,  on  the  7th  July, 
1882,  passed  the  following  resolution  : — That  the 
standing  order  be  adopted — "That  on  electing 
gentlemen  to  membership  of  public  boards,  or 
other  honorary  positions,  all  nominations  thereto 
shall  be  made  in  writing  signed  by  two  members 
of  the  Council  (as  proposer  and  seconder),  and 
delivered  to  the  town  clerk  seven  clear  days 
before  the  day  of  election;  that  each  nomi- 
nation shall  be  confined  to  one  candidate,  and 
that  no  nomination  shall  be  announced  until  all 
shall  have  been  received  and  recorded,  the  names 
being  then  read  out  in  the  order  in  which  the 
town  clerk  shall  receive  them."  On  a  motion 
for  a  writ  of  quo  warranto,  to  set  aside  the  elec- 
tion of  three  persons  as  commissioners,  under 
the  1  Geo.  4,  c  52,  s.  4,  on  the  ground  that  they 
had  not  been  nominated  seven  clear  days  before 
the  day  of  election,  as  required  by  the  resolution 
of  the  7th  of  July,  1882 :— Held,  that  such  reso- 
lution was  ultra  vires  and  invalid,  as  imposing 
upon  the  candidates  for  election  a  qualification 
not  prescribed  by  the  statute,  and  thus  unduly 
restricting  the  class  of  persons  eligible.  Reg,  v. 
Downing,  16  L.  B.,  Ir.  501— Q.  B.  D. 


Amotion  of  Member— Injunction.] — A  cor- 
poration, whether  eleemosynary  or  otherwise, 
has  power  to  amove  a  member  for  sufficient 
cause,  and  will  not  be  restrained  by  injunction 
from  holding  an  inquiry  into  the  conduct  of  a 
member,  and  expelling  him  if  it  thinks  fit. 
The  remedy  of  a  member  aggrieved  by  such 
proceeding  is  by  visitation  or  mandamus  in  the 
respective  cases  of  eleemosynary  and  civil  cor- 
porations. Rex  v.  Richardson  (1  Burr.  537) 
followed.  The  same  principle  applies  where  the 
amoved  person  is  also  an  officer  of  the  corpora- 
tion. 0'6frady  v.  Mercers*  Hospital.  19  L.  B., 
Ir.  350— V.  C. 


2.  Contracts. 


Hot  under  Seal — Ultra  Vires.]— A  highway 
board  passed  a  resolution  directing  their  clerk 
to  take  the  necessary  steps  to  oppose,  on  behalf 
of  the  board,  a  bill  in  Parliament  which  con- 
tained provisions  contrary  to  the  Railway  Clauses 
Acts,  and  which  would  prejudicially  affect  certain 
of  the  highways  within  the  district.  In  puisa- 
ance  of  suoh  resolution  the  clerk  to  the  board 
instructed  the  plaintiffs,  a  firm  of  solicitors,  to 
oppose  the  bill.  In  an  action  by  the  plaintiffs 
to  recover  their  costs  of  such  opposition  from 
the  board : — Held,  that  the  purpose  for  which 
they  had  been  retained  was  not  incidental  to 
the  purpose  for  which  the  highway  board  was 
incorporated,  and  that  as  they  had  not  been 
retained  under  the  seal  of  the  board  they  had  no 
right  of  action  against  the  board.  Pkelp*  v. 
Upton  Snodsbury  Highway  Board,  49  J.  P.  408 ; 
1  C.  &  E.  524— Lopes,  J. 

Seal  affixed  when  Contract  partly  performed.] 
—By  s.  174  of  the  Public  Health  Act,  1875, 
every  contract  made  by  an  urban  authority 
whereof  the  value  or  amount  exceeds  50/.  shall 
be  in  writing  and  sealed  with  the  common  seal 
of  such  authority.  The  defendants,  an  urban 
authority,  by  contract  not  under  seal  employed 
the  plaintiffs  as  engineers  to  perform  certain 
work.  The  plaintiffs  performed  part  of  the 
work  exceeding  in  value  50/.,  and  then  required 
the  defendants  to  affix  their  seal  to  the  contract 
This  the  defendants  did,  believing  that  it  was 
for  the  benefit  of  the  ratepayers  of  the  district 
that  the  contract  should  be  completed :— Held, 
that  as  part  of  the  work  was  unperformed  when 
the  seal  was  affixed,  and  there  was  consideration 
for  affixing  it  in  the  plaintiffs  promise  to  com- 
plete the  work,  it  was  competent  for  the  de- 
fendants to  constitute  the  contract  a  good  contract 
under  seal,  within  s.  174,  in  respect  of  the  work 
already  done,  and  therefore  that  the  plaintifiB 
were  entitled  to  maintain  their  action  for  the 
value  of  that  work.  Mettis  v.  Shirley  Locd 
Board,  14  Q.  B."  D.  911 ;  54  L.  J„  Q.  B.  403; 
52  L.  T.  544— Cave,  J. 

Contract  with  School  Board— Seal]  —  See 
School. 

Borrowing  Powers.]  —  See  Company  (Bos- 
bowing  Powers). 


3.  Liability  fob  Torts. 

Maintenance.] — A  corporation  in  liquidation, 
as  distinct  from  the  liquidator  thereof,  is  inca- 
pable of  maintenance.  Metropolitan  Bank  t. 
Pooley,  10  App.  Cas.  210  ;  54  L.  J.,  Q.  B.  449; 
53  L.  T.  163 ;  33  W.  B.  709 ;  49  J.  P.  756- 
H.  L.  (E.). 

Malicious  Prosecution.]— An  action  for  mali- 
cious prosecution  does  not  lie  against  a  corpora- 
tion aggregate,  a  corporation  aggregate  being 
incapable  of  malice  or  motive.  Abratk  v. 
North-Eastern  Railway,  11  App.  Cas.  247;  56 
L.  J.,  Q.  B.  457  ;  55  L.  T.  63  ;  50  J.  P.  659-Per 
Bramwell  (Lord). 

negligence— Trinity  House— Beacon.]— The 
Trinity  House  was  incorporated  by  charter  in 


517 


COSTS. 


518 


the  reign  of  Henry  VIII.,  for  the  purpose,  inter 
ilia, of  ordering  and  erecting  lighthouses,  beacons, 
and  buoys.  Jts  powers  were  extended  by  several 
charters  and  statutes,  until  it  became  the  general 
lighthouse  authority  for  England  and  Wales.  By 
toe  Merchant  Shipping  Act,  1864,  s.  389,  the 
superintendence  and  management  of  all  light- 
booses,  buoys,  and  beacons  in  England  and 
Wales,  and  certain  other  places,  were,  with 
certain  exceptions,  vested  in  the  Trinity  House  : 
—Held,  that  the  Trinity  House  was  not  a  de- 

SrUnent  of  State,  so  as  to  be  exempt  from 
bflitj  for  negligence  of  its  servants.  Gilbert 
t.  Trinity  Route  Corporation,  17  Q.  B.  D.  796  ; 
KLJ,  Q.  B.  86;  35  W.  R.  30— D. 

A  beacon  erected  by  and  vested  in  the  Trinity 
House,  baring  been  nearly  destroyed,  a  stranger 
applied  to  the  Trinity  House,  and  obtained  leave 
to  remove  the  remains  of  it.  He  removed  part 
of  the  remains,  but  left  an  iron  stump  standing 
up  above  a  rock  under  the  water.  A  vessel 
ftnck  against  the  iron  stump  and  was  lost : — 
Held,  that  the  Trinity  House  was  liable.    lb. 


— Barbour  Ccmmlnimmrt,] — The  B.,  which 
*aa  anchored  in  F.  outer  harbour,  having  to  be 
beached  in  the  inner  harbour,  S.,  the  harbour- 
■aster,  directed  the  master  of  the  B.  where  to 
beach  her.  Before  the  B.  left  the  outer  harbour, 
8.  came  on  board,  although  a  Trinity  House  pilot 
via  in  the  vessel,  and  when  she  had  arrived  near 
the  place  where  she  was  to  be  beached  gave 
directions  as  to  the  lowering  of  her  anchor.  The 
R.  overran  her  anchor  and  grounded  on  it,  sus- 
taining damage.  In  an  action  against  the 
barboor  commissioners  and  8.,  the  court  found 
s>  a  fact  that  there  was  negligence  on  the  part 
of  6.,  and  that  the  place  where  the  B.  grounded 
m  outside  the  jurisdiction  of  the  harbour  com- 
BBBonen :— Held,  that  the  duties  of  the  harbour- 
ftuter  comprised  directions  as  to  the  mooring 
tod  beaching  of  vessels ;  that  by  giving  direc- 
tion* when  he  went  on  board,  8.  had  resumed 
bis  functions  as  harbour-master,  and  that  he 
tod  the  commissioners  were  therefore  liable  for 
the  damage  done  to  the  B.  The  Rhosina,  or 
Sivarit  v.  Falmouth  Harbour  Commissioners, 
10  P.  D.  131 ;  54  L.  J.,  P.  72  ;  63  L.  T.  30 ;  33 
*-  R.  794  ;  6  Asp.  M.  C.  46C— C.  A. 

By  act  of  Parliament,  26  &  27  Vict.  c.  89,  the 
barbour  of  B.  was  vested  in  the  defendants,  the 
Knits  were  defined,  and  the  defendants  had 
jurisdiction  over  the  harbour  of  P.  and  the 
*bannel  of  P.  beyond  those  limits,  for  the  pur- 
pose of,  inter  alia,  buoying  "the  said  harbour 
aad  channel,"  bnt  they  were  not  to  levy  dues  or 
tttei  beyond  the  harbour  of  B.  By  42  &  43 
Tiet.  c  146,  a  moiety  of  the  residue  of  light 
jsues  to  which  ships  entering  or  leaving  the 
■arbour  of  P.  contributed,  was  to  be  paid  to  the 
defendants,  and  to  be  applied  by  them  in,  inter 
*&*>  buoying  and  lighting  the  harbour  and 
«bannel  of  P.  A  vessel  was  wrecked  in  the 
channel  of  P.,  which  under  the  Wrecks  Removal 
Act,  1677  (40  fc  41  Vict.  c.  16),  a.  4,  the  defen- 
fao  had  power  to,  and  did  partially  remove. 
Re  wreck  not  removed  was  not  buoyed,  and  the 
IjastuTa  vessel  was  in  consequence  wrecked : — 
Held,  that  the  statutes  imposed  upon  the  defen- 
4aaU  an  obligation  to  remove  the  wreck  from 
the  channel,  or  to  mark  its  position  by  buoys, 
**d  that,  not  having  done  so,  they  were  liable  in 
damage*  to  the  plaintiff.    Dormant  v.  Fumes* 


Railway  Company,  11  Q.  B.  D.  496 ;  62  L.  J., 
Q.  B.  331 ;  49  L.  T.  134  ;  47  J.  P.  711 ;  6  Asp. 
M.  C.  127— Kay,  J.  See  also  Reg.  v.  Williams, 
ante,  coL  337. 


COST-BOOK  MINE. 

Order  for  Inspection  of  Documents  on  Wind- 
ing np.]— See  West  Devon  Great  Consols  Mine, 
In  re,  ante,  col.  440. 


COSTS. 

I.  General  Principles. 

IL  Order  LXV.— Jurisdiction. 

1.  Rule  1,  620. 

a.  Trial  by  Jury,  620. 

b.  In  other  cases,  621. 

2.  Rule  11— Delay,  623. 

3.  Rule  12,  626. 

4.  Rule  23,  626. 

6.  Jurisdiction  in  other  cases,  626. 

III.  Particular  Persons. 

1.  Persons  suing  in  Borma  Pauperis, 

627. 

2.  In  other  cases,  628. 

IV.  Several  Parties. 

V.  Several  Issues. 

VI.  Taxation  of  Costs. 

1.  Between  Party  and  Party,  632. 

a.  Practice,  632. 

b.  What  Costs  allowed,  632. 

i.  Counsel— Fees,  632. 
it  Expenses  of  Evidence,  634. 
iii.  Writ    and     Interlocutory 

Proceedings,  636. 
iv.  Several  Parties. — See  supra, 

IV. 
v.  Several  Issues. — See  supra, 
V. 

c.  Scale  of  Taxation,  686. 

i.  Higher   or   Lower   Scale, 

636. 
ii.  As  between  Solicitor  and 

Client,  638. 
iii.  County  Court  Scale. — See 

infra,  VII. 

2.  Between  Solicitor  and  Client. — See 

Solicitor. 

VII.  County  Courts  Act. 
VI1L  Interest  on  Costs. 

IX  Set-off. 

X.  Means  of  Recovering. 

XI.  Appeal  for  Costs. 


XII.  On  Appeal.— See  Appeal. 


s  2 


519 


COSTS— General  Principles. 


520 


XIII.  Security  fob  Coots. 

1.  Of  Appeal— See  APPEAL. 

2.  Of  Appeal  from  County  Court — See 

County  Coubt  (Appeal). 

3.  On  Winding-up  of  Companies—See 

Company,  XL,  3,  b. 

4.  In  other  Cases — See  Practice. 

XIV.  Coubt  Fees.— See  Practice. 

XV.  In  otheb  Cases. 

Ob  Discontinuance  of  Action,] — See  Prac- 
tice. 

Ob  Confession  of  Dofonot.] — See  Practice. 

Staying  Proceedings  on  Non-payment] — See 
Practice. 

Ob  Payment  Into  Oonrt.] — See  Practice. 

In  Probate  Case*.]— See  Will. 

In  Admiralty  Cases.]— See  Shipping. 

In  Administration  Aetloni.] — See  Execu- 
tor and  Administrator. 

In  Bankruptcy  Cases.]— See  Bankruptcy. 

In  Inferior  Court!.]— See  Coubt. 

In  County  Court  Cases.]  —  See  County 
Coubt. 

Under  Landi  Clauiei  Act.]  —  See  Lands 
Clauses  Act. 

In  Actions  by  and  against  Infant.]-— See 
Infant. 

In  Actions  by  or  againit  Trustees.]— See 
Trust  and  Trustee. 

In  Actiont  by  or  againit  Executor!.]— See 
Executor  and  Administrator. 

In  Cases  of  Mortgage.]— &0  Mortgage. 

Liability  of  Woman'!  Separate  Eitate  for.] 
—See  Husband  and  Wipe. 

In  Arbitration!.] — See  Arbitration. 

In  Patent  Cases.]— See  Patent. 

Of  Sheriff]— See  Sheriff. 

When  Becoverable  as  Damage!.] — See  Dam- 
ages. 

I.    GENERAL  PBIKCIPLES. 

Writ  issued  without  Notice.]— Where  plain- 
tiffs in  an  action  for  infringement  of  copyright 
issued  their  writ  without  notice,  and  the  defen- 
dant as  soon  as  he  understood  the  circumstances 
tried  his  best  to  undo  the  injury  caused  by  the 
infringement : — Held,  that  the  defendant  must- 
submit  to  the  injunction  and  pay  the  costs. 
Wittmann  v.  OppenhHm,  27  Ch.  D.  260  ;  54  L. 
J.,  Ch.  66  ;  60  L.  T.  713 ;  32  W.  R.  767— Pear- 
son,  J. 


The  fact  that  an  action  has  been  brought 
without  a  previous  application  to  the  defendant 
does  not  prevent  the  plaintiff  from  getting  his 
costs  of  the  action.  Ooodhart  v.  Hyett,  25  Ch. 
D.  182  ;  50  L.  T.  95— North,  J. 

Oiler  to  Compensate  Plaintiff  without  Legal 
Proceedings.]—  On  the  12th  June,  1886.  one  of 
the  defendants'  travellers  received  an  order  from 
Nutting,  oi  Lavender  Hill,  for  sixty  dozen  card- 
board boxes,  with  labels  bearing  the  words 
"  Browne's  Satin  Polish  for  ladies'  and  children's 
boots  and  shoes,  travelling  bags,  trunks,  fcc, 
manufactured  by  Browne,  of  Lavender  HilL" 
On  the  6th  July,  1886,  the  plaintiff,  the  owner 
of  a  registered  trade  mark,  14,127,  bearing  the 
words  "  Browne's  Satin  Polish,"  issued  a  writ  to 
restrain  the  infringement  of  his  trade  mark. 
On  the  7th  July,  1886,  the  defendants  offered  to 
compensate  the  plaintiff  without  the  necessity 
of  legal  proceedings,  and  to  destroy  the  labels, 
and  comply  with  any  reasonable  request  of  the 
plaintiff.  On  the  16th  July,  the  plaintiff  moyed 
for  an  injunction  -.—Held,  that,  notwithstanding 
the  defendants'  offer,  the  motion  was  not  sn 
unnecessary  proceeding,  and  the  defendants 
must  pay  the  costs  caused  by  what  they  had 
done.    lennessy  v.  Day,  55  L.  T.  161— V.-C.  B. 

IL    OXDSB  LXV.-^JTJRISDICriOH. 

1.  RULE   1. 

a.  Trial  by  Jury. 

Claim  and  Counter-claim— "  Event"]— In  an 
action  tried  with  a  jury,  where  the  defendant 
counterclaims  in  respect  of  matters  which  could 
not  be  pleaded  as  set-off,  and  the  plaintiff  re- 
covers a  sum  on  his  claim,  and  the  defendant 
recovers  on  his  counterclaim  a  sum  exceeding 
that  which  the  plaintiff  recovers  on  his  claim, 
the  claim  and  counterclaim  should,  for  the 
purpose  of  taxation  of  costs,  be  treated  * 
separate  and  independent  actions,  and  the  costs 
in  each  taxed  in  favour  of  the  successful  party, 
subject  to  a  deduction  in  respect  of  the  costs  of 
any  issues  on  which  be  has  not  succeeded.  In 
such  a  case  it  is  immaterial,  with  respect  to  the 
taxation  of  costs,  whether  the  judgment  is 
drawn  up  in  form  for  the  plaintiff  for  the  sum 
recovered  on  his  claim,  and  for  the  defendant 
for  the  sum  recovered  on  his  counterclaim ;  or 
whether  the  judgment  is  given  for  the  defendant 
for  the  balance  under  Ord.  XXI.  r.  17.  Skrapd 
v.  Laing,  20  Q.  B.  D.  334  ;  57  L.  J.,  Q.  B.  195 ; 
58  L.  T.  705  ;  36  W.  R.  297— C.  A.  See  Bff** 
v.  Frasery  post,  coL  532. 

Costs  following  Event—"  Good  Csass" 

—Claim  admitted  on  Pleadings.]— The  plaintiff 
claimed  78f.  15#.  in  respect  of  a  quarter's  rent  of 

§  remises  let  furnished  to  the  defendant  Th* 
efendant  by  his  pleadings  admitted  the  claim, 
but  counter-claimed  for  a  larger  amount  as 
damages  in  respect  of  the  insanitary  condition 
of  the  demised  premises.  The  action  was  tried 
by  a  jury,  who  found  for  the  defendant  on  the 
counterclaim  with  17/.  16*.  damages.  The  judge 
at  the  trial  ordered  that  judgment  should  be 
entered  for  the  plaintiffs  for  the  amount  of  the 
claim  with  costs  down  to  the  date  of  the  counter- 
claim, and  that  judgment  should  be  entered  for 
the  defendant  for  172. 16*.  on  the  counterclaim, 


621 


COSTS— Order  LXV.— Jurisdiction. 


622 


with  the  costs  of  the  counterclaim,  and  subse- 
quent thereto,  including  the  costs  of  the  trial : 
—Held,  that  the  effect  of  the  judge's  order  as 
regards  costs  was  to  prevent  them  from  following 
the  "event,"  and  that  in  the  absence  of  "good 
cause"  he  had  no  jurisdiction  to  make  such 
cider.  Wight  v.  Shaw,  19  Q.  B.  D.  396  ;  36  W. 
B.408-C.A. 

"flood  Came."]— Where  an  action  is  tried 

■with  8  jury  the  judge  before  whom  it  is  tried  has 

no  jurisdiction  under  Ord.  LXV.  r.  1,  to  make 

an  oider  by  which  the  costs  will  not  follow  the 

event  unless  there  exist  "  good  cause "  within 

the  meaning  of  that  rule,  and  consequently  there 

is  an  appeal  with  respect  to  the  existence  of  the 

frets  necessary  to  give  the  judge  jurisdiction  to 

make  such  order.    To  be  "  good  cause  "  within 

that  rule  there  must  be  facts  shewing  that  it 

would  be  more  just  not  to  allow  the  costs  to 

Mow  the  event,  as  for  example,  oppression  or 

auscondnct  of  either  of  the  parties  by  which 

costs  had  been  unnecessarily  increased.     The 

fact  that  the  action  is  for  the  recovery  of  several 

closes  of  land,  that  the  only  defence  is  that  the 

defendant  is  in  possession,  and  that  the  verdict 

■  for  the  plaintiff  for  some  only  of  the  closes 

claimed,  does  not  by  itself   constitute  "good 

erase  "  within  Ord.  LXV.  r.  1,  since  the  verdict 

in  snch  a  case  is  distributive,  and  the  costs,  if 

properly  taxed,  would  be  as  on  a  finding  by  the 

jut  on  separate  issues.    Jones  v.  Curling,  13  Q. 

KD.262;  53  L.  J.,  Q.  B.  373  ;  50  L.  T.  349  ;  32 

W.  B.  651— C.  A. 

Where,  in  an  action  for  seducing  a  woman 
thirty-five  years  of  age,  it  was  proved  that  she 
had  readily  consented,  and  that  the  parties  were 
very  poor,  and  the  jury  having  awarded  only 
IN.  damages,  the  judge  who  tried  the  case  stated 
upon  the  face  of  his  order  the  foregoing  circum- 
stances, and  his  own  opinion  that  no  greater 
amount  of  damages  could  have  been  reasonably 
given  or  expected,  as  "  special  cause/'  under 
a.  53  of  the  Irish  Judicature  Act,  for  depriving 
the  plaintiff  of  his  costs  :— Held,  that  the  facts 
did  not  constitute  such  "  special  cause,"  and  that 
the  plaintiff  was  entitled  to  his  costs.  Wilton 
v.  Jf> Mains,  20  L.  RM  Ir.  582— C.  A. 

If  from  all  the  facts  proved  before  a  judge 
and  jury  it  appears  that  the  action  was  brought 
or  conducted  oppressively  by  the  plaintiff,  that 
constitutes  "good  cause"  within  Ord.  LXV. 
r.  1,  so  as  to  enable  the  judge  to  interfere,  and 
not  only  deprive  a  successful  plaintiff  of  his 
costs,  but  also  to  order  that  he  shall  pay  the 
defendant's  costs.  If  "  good  cause  "  exists  the 
court  will  decline  to  consider  whether  the  judge 
hat  exercised  his  discretion  rightly  or  not.  Wil- 
liam v.  Ward,  55  L.  J.,  Q.  B.  566— C.  A. 

- —  Appeal  from  Judge's  Order.] — Where  an 
action  is  tried  with  a  jury  the  exercise  of  the 
judge's  jurisdiction  as  to  costs  under  Ord.  LXV. 
£  1,  was  not  intended  by  the  legislature  to  be 
•abject  to  any  appeal  Huxley  v.  West  London 
Eaetmsum  Railway,  17  Q.  B.  D.  373  ;  55  L.  J., 
4fc  B.  506— Lord  Coleridge,  C.  J.  See  8.  C.  in 
H.  L..  14  App.  Cas.  26  ;  58  L.  J„  Q.  B.  305  ;  60 
L  T.  642  ;  37  W.  R.  626. 

b.  la  other  Oases. 

Judgment  for  Defendant  on  Counter-claim 
agtiast  Third  Party— Discretion.}— In  an  action 


by  landlord  against  tenant  for  rent,  the  defen- 
dant brought  a  counter-claim  against  the  plain- 
tiff and  third  parties  for  illegal  distress.  The 
judge  before  whom  the  case  was  tried  without  a 
jury  gave  judgment  for  the  plaintiff  on  the 
claim  and  the  counter-claim,  but  for  the  defen- 
dant against  the  third  parties  for  21.  5#.  "  with 
such  costs  as  the  defendant  would  be  entitled  to 
by  law  "  : — Held,  that  as  the  case  had  been  tried 
without  a  jury,  the  costs  were  by  Ord.  LXV. 
r.  1,  in  the  discretion  of  the  judge,  and  there 
having  been  no  exercise  of  such  discretion  in 
favour  of  the  defendant  as  against  the  third 
parties,  the  defendant  was  not "  entitled  by  law  " 
to  costs.  Lewin  v.  Trimming,  21  Q.  B.  D.  280  J 
59  L.  T.  611  ;  37  W.  R.  16— D. 

Double  Costs — Discretion.] — Ord.  LXV.  r.  1, 
does  not  apply  to  costs  which  are  given  by  a 
statute  as  a  matter  of  right.  Thus,  in  an  action 
brought  for  anything  done  in  pursuance  of  8  &  9 
Vict.  c.  100,  a  successful  defendant  is  entitled 
to  double  costs  as  a  matter  of  right.  Hasher  v. 
Wood,  64  L.  J.,  Q.  B.  419  ;  33  W.  B.  697—0.  A. 

Action  remitted  to  County  Court  for  TriaL}— 
Where  an  action  has  been  ordered  to  be  tried 
in  a  county  court  under  19  &  20  Vict,  c  108, 
8.  26,  and  has  been  so  tried  there,  the  High 
Court  retains  its  power  under  Ord.  LXV.  r.  1, 
of  dealing  with  the  costs  of  the  action,  notwith- 
standing r.  4  of  that  order,  and  the  absence  in 
the  registrar's  certificate  of  any  expression  of 
opinion  by  the  county  court  judge  as  provided 
for  by  that  rule.  Emeny  or  Emery  v.  Sandes,  14 
Q.  B.  D.  6  ;  64  L.  J.,  Q.  B.  82  ;  51  L.  T.  641  ;  33 
W.  B.  187— C.  A. 

Application  for  payment  of  Fundi  out  of 
Court.] — The  Commissioners  of  Works  and  Pub- 
lic Buildings  compulsorily  took,  under  3  &  4 
Vict.  c.  87,  and  9  &  10  Vict.  c.  34,  certain  lands, 
and  paid  the  purchase-money  or  compensation 
into  court.  Neither  of  these  acts  contained  any 
provision  for  the  payment  by  the  Commissioners 
of  the  costs  of  applications  for  payment  out. 
Upon  a  petition  for  payment  out  of  a  fund  by 
the  persons  entitled  thereto : — Held,  that  the 
Lands  Clauses  Consolidation  Act,  1845,  was  not 
incorporated  in  the  Acts  3  &  4  Vict.  c.  87,  and 
9  &  10  Vict.  c.  34,  and  that  rule  1  of  Ord.  LXV. 
did  not  give  the  court  power  to  order  the  pay- 
ment of  costs  where  before  the  Judicature  Act 
it  would  not  have  had  jurisdiction  to  do  so. 
Mercers'  Company,  Ex  parte  (10  Ch.  D.  481) 
questioned ;  Qarnett  v.  Bradley  (3  App.  Cas. 
944)  distinguished  ;  Foster  v.  Great  Western 
Railway  (8  Q.  B.  D.  615)  followed ;  Cherry** 
Settled  Estates,  In  re  (4  De  Q.  F.  k  J.  832) 
approved ;  and  dicta  in  Wood's  Estates,  In  re 
(31  Ch.  D.  607)  dissented  from.  Mills'  Estate, 
In  re,  34  Ch.  D.  24  ;  66  L.  J.,  Ch.  60  ;  65  L.  T. 
465  ;  35  W.  R.  66  ;  51  J.  P.  151— C.  A. 

The  court  has  power,  by  virtue  of  the  general 
discretionary  powers  conferred  by  Ord.  LXV.,  to 
order  that  the  costs  of  a  petition  for  the  payment 
out  of  the  court,  to  a  person  absolutely  en- 
titled, of  a  fund  paid  into  court  by  a  company 
in  respect  of  lands  taken  under  the  compulsory 
powers  of  a  special  act,  be  paid  by  the  company, 
although  the  special  act  is  prior  to  the  Lands 
Clauses  Consolidation  Act,  1845,  and  contains 
no  provision  as  to  such  costs.    Lee  and  Heming* 


'  1 


528 


COSTS— Order  LXV.— Jurisdiction. 


524 


way,  In  re,  24  Ch.  D.  669 ;  49  L.  T.  165 ;  32 
W.  R.  226— North,  J. 

Petition  under  Trustee  Act.]— Whether  under 
the  Judicature  Acts  and  the  Orders  of  1883, 
Ord.  LXV.  r.  1,  the  court  has  jurisdiction  to 
order  a  respondent  to  a  petition  under  the 
Trustee  Act,  I860,  to  pay  costs,  quaere.  Knight's 
Will  or  Trusts,  In  re,  26  Ch.  D.  82  ;  60  L.  T. 
660  ;  82  W.  R.  417— C.  A.  8.  C,  cor.  Pearson, 
J.,  68  L.  J.,  Ch.  223. 

Administration  Aetion  by  Residuary  Legatee 
—Pending  Cause.]— Ord.  LXV.  r.  1,  of  the 
Rules  of  the  Supreme  Court,  1883,  directing 
that  the  costs  of  all  proceedings  in  the  Supreme 
Court,  including  the  administration  of  estates 
and  trusts,  shall  be  in  the  discretion  of  the 
court  or  a  judge,  applies,  in  the  case  of  causes 
and  matters  pending  on  the  24th  of  October, 
1883,  when  those  rules  came  into  operation,  only 
to  the  costs  of  proceedings  taken  on  and  after 
that  day ;  and  the  costs  incurred  in  proceedings 
taken  in  such  causes  and  matters  before  that 
day,  although  not  adjudicated  upon  until  after- 
wards, are  not  within  that  rule.  In  an  action 
for  administration  by  one  of  several  residuary 
legatees,  all  the  proceedings  except  those  on 
Subsequent  further  consideration  were  taken 
before  Ord.  LXV.  r.  1,  came  into  operation, 
though  the  costs  were  not  adjudicated  upon 
until  the  order  on  further  consideration,  which 
was  made  afterwards : — Held,  that  an  appeal 
would  lie  as  to  the  costs  of  such  prior,  though 
not  as  to  the  costs  of  such  subsequent,  proceed- 
ings. Farrow  v.  Austin  (18  Ch.  D.  58)  followed. 
McClellan,  In  re,  McClellan  v.  McClellan,  29 
Ch.  D.  495  ;  54  L.  J.,  Ch.  659  ;  62  L.  T.  741  ;  33 
W.  R.  888— C.  A. 

Action  dismissed  for  want  of  Prosecution.] — 
The  statutable  right  of  a  defendant  to  the  costs 
of  an  action  in  the  Chancery  Division  which  had 
been  dismissed  for  want  of  prosecution  was 
repealed  by  42  &  43  Vict.  c.  59,  which  repeals 
so  much  of  4  &  5  Anne,  c.  3,  as  gives  such  costs, 
and  though  the  practice  in  accordance  with  such 
statutable  right,  and  as  regulated  by  Ord. 
XXXIII.  r.  10,  of  the  Chancery  Consolidation 
Orders  of  1860,  was  preserved  by  s.  4  of  42  &  43 
Vict.  c.  69,  yet  Ord.  LXV.  r.  1,  of  the  rules  of 
1883,  has  changed  such  practice,  so  that  the  costs 
of  a  defendant  where  such  action  has  been  dis- 
missed for  want  of  prosecution  are  now  in  the 
discretion  of  the  judge,  and  therefore  his  order 
as  to  such  costs  is  by  s.  49  of  the  Judicature  Act, 
1873,  not  subject  to  appeal.  Smelling  v.  PuUing, 
29  Ch.  D.  86  ;  62  L.  T.  335  ;  33  W.  R.  449— C.  A. 


2.  RULE  11— DELAY. 

Reference  to  Taxing-master  to  Inquire  into 
Delay.] — Where  very  considerable  delay  had 
occurred  in  proceedings  under  a  decree  in  an 
administration  suit  which,  in  the  opinion  of  the 
court,  ought  to  be  accounted  for,  the  court,  in 
exercise  of  the  powers  afforded  by  Ord.  LXV. 
r.  11,  of  the  Rules  of  Court,  1883,  ordered  that,  in 
the  taxation  of  the  costs,  the  matter  be  referred 
specially  to  the  taxing-master,  and  he  be  directed 
to  inquire  into  the  cause  of  the  delay,  to  make 
such  disallowance  of  costs  in  respect  thereof  as 
he  might  think  fit,  and  to  call  upon  the  solicitors 


engaged  in  the  conduct  of  the  case  to  show  cause 
why  that  disallowance  should  not  be  made. 
Fume**  v.  Davis,  61  L.  T.  854  ;  33  W.  R  320— 
Kay,  J. 

Costs  incurred  before  Rules  of  1883— Payment 
of  Costs  out  of  Fund.]— The  powers  given  by 
Ord.  LXV.  r.  11,  of  disallowing  costs  impro- 

Serly  incurred,  or  rendered  fruitless  by  undue 
elay,  are  not  confined  to  delay  and  costs  taking 
place  and  incurred  after  the  Orders  of  1883  came 
into  operation,  but  extend  to  all  costs  incurred 
in  an  action  pending  when  the  orders  came  into 
operation,  which  costs  had  not  been  already 
adjudicated  upon ;  and  these  powers  may  be 
exercised  by  the  judge  of  his  own  motion  with- 
out any  request  from  any  of  the  parties.  The 
rule  extends  to  cases  where  in  the  ordinary 
course  the  costs  are  paid  out  of  a  fund,  and  is 
not  confined  to  disallowing  costs  as  between  the 
solicitor  and  his  client  who  has  to  pay  them. 
Brown  v.  Burdrtt,  37  Ch.  D.  207  ;  68  L.  T. 
571  ;  36  W.  R.  225— C.  A. 

Orders  were  made  before  1883  in  an  admini- 
stration action,  directing  taxation  of  the  costs  of 
the  action,  but  not  containing  any  direction  for 
their  payment,  nor  any  declaration  how  they 
were  to  be  paid  : — Held,  that  this  was  not  such 
an  adjudication  as  to  the  costs  as  would  prevent 
the  judge  who  had  finally  to  dispose  of  them 
from  exercising  any  powers  which  he  had  as  to 
them  under  or  apart  from  the  general  orders, 
and  that  he  had  jurisdiction  to  direct  an  inquiry 
under  Ord.  LXV.  t.  11.    lb. 

An  action  was  begun  on  the  19th  April,  1882, 
by  a  person  who  had  bought  a  share  in  an  estate 
for  56f.,  asking  that  the  trusts  of  the  will  of  a 
testator  might  be  carried  into  execution,  and 
his  real  and  personal  estate  administered  by  the 
court,  and  that  all  proper  accounts  and  inquiries 
might  be  taken  and:  made,  and  directions  given. 
No  allegation  was  made  in  it  of  any  kind  of 
misconduct  on  the  part  of  the  trustees.  The 
claim  showed  that  the  widow  of  the  testator, 
who  by  the  will  was  tenant  for  life  of  all  the 
real  and  personal  estate,  was  still  living ;  there 
was  no  doubt  as  to  who  were  the  persons  ulti- 
mately entitled.  On  the  17th  March,  1883,  the 
usual  judgment  for  administration  was  pro- 
nounced, and  numerous  accounts  and  inquiries 
were  ordered  to  be  taken  and  made.  One  in- 
quiry, as  to  certain  investments,  was  not  asked 
by  the  pleadings,  or  indeed  until  after  the  hear- 
ing on  further  consideration.  On  the  23rd  Au&r 
1887,  the  chief  clerk  filed  his  certificate.  The 
court  of  first  instance  held,  that  no  benefit 
having  resulted  to  the  estate  from  the  action, 
and  the  action  being  an  idle  and  vexations  pro- 
ceeding, the  plaintiff  was  not  entitled  to  his 
costs  out  of  the  estate ;  that  the  plaintiff  must 
pay  all  the  costs  of  the  action  since  Ord.  LXV. 
r.  1,  of  the  Rules  of  Court  came  into  operation 
on  the  24th  Oct.,  1883.  The  costs  would  be 
taxed,  and  the  taxing-master  should  have  regard 
to  Ord.  LXV.  r.  11,  to  see  what  costs  (if  any) 
had  been  fruitless,  or  had  been  occasioned  by 
this  delay.  On  appeal  from  so  much  of  the 
order  as  related  to  costs  incurred  before  the 
Rules  of  1883  came  into  operation  : — Held,  that 
though  the  general  delay  could  not  be  attributed 
to  the  plaintiff,  he  had,  by  taking  the  inquiry  as 
to  investments,  and  thus  throwing  the  matter 
into  chambers  and  causing  expense,  been  guilty 
of  such  improper  conduct  as  gave  the  judge  a 


r 


525 


COSTS— Order  LXV.— Jurisdiction. 


526 


discretion  to  make  him  pay  the  costs,  and  that 
with  this  discretion  the  court  would  not  interfere. 
OrmsUm,  In  re,  Ooldring  v.  Lancaster,  59  L.  T. 
5W-C.A.    Affirming  36  W.  B.  216—  Kay,  J. 

8.  RULE  12. 

fefennce— Costs  to  abide  event — Less  than 
£M  rooovered— High  Court  8eale.]— An  action 
of  contract  was  referred  by  consent,  the  costs  to 
abide  the  event  of  the  award,  and  judgment  on 
the  award  to  be  entered  in  the  High  Court. 
The  arbitrator  found  for  the  plaintiff  for  a  sum 
less  than  50Z.  and  judgment  was  entered  accord- 
ingly:—Held,  that  a  judge  at  chambers  had 
jurisdiction  under  Ord.  LXV.  r.  12  to  order  the 
plaintiff's  costs  to  be  taxed  on  the  High  Court 
scale.  Hyde  v.  Beardsley,  18  Q.  B.  D.  244  ;  56 
L  J.,  a  B.  81  ;  67  L.  T.  802  ;  35  W.  R.  140— D. 

4.  RULE  23. 

lai  in  gross  in  lien  of  Taxed  Costs.]— A 

contingent  legacy  to  an  infant  was  paid  into 
cant  by  the  executor  of  the  will  of  the  testatrix 
under  the  Legacy  Duty  Act.    A  summons  was 
then  taken  out  by  the  guardian  of  the  infant, 
asking  that  the  income  of  the  legacy  might  be 
paid  to   him  until  the  infant  should   attain 
twenty-one.    An  originating  summons  was  also 
taken  out  by  the  next  of  kin  of  the  testatrix, 
dahning  the  income  during  the  minority  of  the 
infant  on  the  ground  that  it  was  undisposed  of 
by  the  wilL    The  two  summonses  were  heard 
together  before  the  judge  in  chambers,  when  he 
decided  that  the  income  until  the  infant  should 
attain  twenty-one  was  undisposed  of,  and  that 
the  next  of  kin  were  entitled  to  it.    The  execu- 
tor^ solicitor  asked  that  his  cost  of  attendance, 
amounting  to  about  131.,  might  be  allowed  out 
of  the  income.  The  judge  considered  the  atten- 
duice  of  the  executor's  solicitor  unnecessary,  and 
declined  to  allow  more  than  a  fixed  sum  for 
oasts,  to  be  determined  by  the  chief  clerk.    The 
chief  clerk,  without  attempting  to  tax  the  bill, 
but  acting  upon  what  the  judge  nad  said,  allowed 
the  sum  of  3  guineas.    The  matter  was  again 
referred  to  the  judge,  who  confirmed  the  order 
of  the  chief  clerk.    A  motion  was  accordingly 
made  to  vary  that  order :— Held,  that  rule  23  of 
Older  LXV.  of  the  Rules  of  Court,  1883,  seemed 
to  apply  to  the  case ;  but  that,  in  any  event,  the 
court  had  power  in  such  a  case  as  the  present  to 
limit  the  amount  of  costs  to  be  allowed.    Walters, 
2m  re,  Moore  v.  Bemrose,  58  L.  T.  101— Kay,  J. 


5.  JURISDICTION  IN  OTHER  CASES. 

IMagation  of  Discretion.] — Where  a  court  or 
lodge  is  expressly  given  a  discretion  as  to  costs, 
the  exercise  of  such  discretion  cannot  be  dele- 
gated.  Zambtan  v.  Parkinson,  35  W.  R.  545— D. 


Cats  stated  under  80  ft  SI  Viet  e. 
lotfondent  not  appearing.]— A  successful  appel- 
lant in  a  case  stated  by  justices  is  entitled  to  his 
costs  though  the  respondent  does  not  appear  to 
support  the  judgment  of  the  justices.  Shepherd 
v.  FdXand,  49  J.  P.  165—  D.  8.  P.  Oreenbank  v. 
Snderson,  49  J.  P.  40-D. 

Remitted  tor  Amendment  but  not  re- 


turned.]— A  case  having  been  stated  by  justices 
under  20  &  21  Vict  c.  43,  and  remitted  to  them 
for  an  amended  statement,  but  not  returned 
within  the  proper  time,  and  therefore  abandoned : 
— Held,  that  the  court  still  had  jurisdiction  to 
order  the  appellant  to  pay  the  respondent's  costs. 
Orowther  v.  Boult,  13  Q.  B.  D.  680  j  32  W.  R. 
160  ;  49  J.  P.  136— D. 

No  Notice  given/] — A  case  having  been 

stated  under  20  &  21  Vict.  c.  43,  the  case  was 
lodged,  but  no  notice  was  given  to  the  respondent 
of  the  appeal : — Held,  that  though  the  appeal 
could  not  be  heard,  costs  could  be  given  against 
the  appellant.  South  Dublin  Union  Chtardian* 
v.  Jones,  12  L.  R.}  Ir.  858— Ex.  D. 

County  Palatine  Court — Particulars  of  Objec- 
tions.]— In  an  action  in  the  court  of  the  County 
Palatine  to  restrain  infringement  of  a  patent, 
the  defendants  delivered  particulars  of  objection. 
At  the  trial  the  judge  held  the  patent  invalid  for 
an  objection  appearing  on  the  face  of  it,  and 
dismissed  the  action  with  costs,  stating  his 
opinion  that  the  defendants  ought  to  have  the 
costs  of  the  witnesses  brought  up  to  support 
their  particulars  of  objection,  though  they  nad 
not  been  called,  as  the  plaintiffs  virtually  had 
been  non-suited.  On  taxation  the  registrar  dis- 
allowed these  costs,  but  the  Vice-chancellor 
held  that  they  must  be  allowed.  The  plaintiffs 
appealed  :— Held,  that  neither  Lord  Cairns'  Act 
(21  &  22  Vict.  c.  27)  nor  Sir  J.  Rolfs  Act  (25  & 
26  Vict.  c.  42)  made  it  obligatory  on  a  court  of 
equity  to  follow  the  rule  as  to  costs  of  particu- 
lars of  objections  laid  down  by  the  Patent  Law 
Amendment  Act,  1852  (15  &  16  Vict  c.  83), 
s.  43,  and  that  the  rule  which  applied  to  courts 
having  no  discretion  as  to  costs  ought  not  to  be 
followed  by  analogy  by  a  court  which  had  dis- 
cretion as  to  costs ;  that  the  Vice-Chancellor 
had  therefore  power  to  give  these  costs,  and  that 
they  must  be  allowed.  Parnell  v.  Mart,  29  Ch. 
D.  325 ;  63  L.  T.  186  ;  83  W.  R.  481— C.  A. 

Where  Concurrent  Jurisdiction.]— An  action 
was  commenced  in  the  Chancery  Division 
claiming  relief  which  might  have  been  given 
on  a  summary  proceeding  in  the  Probate 
Division :— Held,  that  although  the  plaintiff  was 
entitled  to  the  relief  claimed,  no  costs  should  be 
allowed  on  either  side.  Blaekett  v.  Blackett,  51 
L.  T.  427— North,  J. 

District  Registry — Administration  Action — 
Taxing  Officer.]— The  court  can,  in  its  discretion, 
order  the  taxation  of  costs  in  an  administration 
action,  commenced  and  prosecuted  in  a  district 
registry,  to  be  made  by  the  district  registrar. 
The  term  "taxing  officer"  in  rr.  3, 11,  and  12  of 
Supreme  Court  Funds  Rules,  1884,  these  rules 
being  read  in  conjunction  with  Ord.  LXV.  r.  27, 
sub-s.  43,  of  Rules  of  Supreme  Court,  1883,  in- 
cludes "  district  registrar,  where  the  court  baa 
directed  taxation  to  be  made  by  that  officer,  and 
the  paymaster  is  bound  to  act  on  the  certificate 
of  taxation  of  a  district  registrar,  when  the  court, 
in  the  exercise  of  its  discretion,  has  directed  taxa- 
tion in  the  district  registry.  The  court,  however, 
following  Bay  v.  Whittaker  (6  Ch.  D.  734),  will 
not,  except  under  very  special  circumstances, 
direct  the  costs  of  an  action  commenced  in  a  dis- 
trict registry  to  be  taxed  otherwise  than  by  a 
taxing-master  of  the  Chancery  Division.  WiUen 


527 


COSTS — Particular  Persons — Several  Parties. 


528 


In  re,  Wilson  v.  AUtree,  27  Ch.  D.  242  ;  53  L. 
J.,  Ch.  989  ;  32  W.  R.  897— Chitty,  J. 

Payment  out  of  Fund  In  Court — Cost*  dis- 
allowed by  Master.] — Where  a  contributory  of 
a  company  was  ordered  to  pay  a  certain  Bum  of 
money  to  the  liquidator,  the  contributory  took 
out  a  summons  to  stay  execution  pending  an 
appeal,  and  a  stay  of  execution  was  ordered  upon 
the  terms  of  his  paying  the  money  and  60Z.  for 
costs  into  court,  no  order  being  made  as  to  the 
costs  of  the  summons  to  stay.  The  appeal  was 
dismissed  with  costs,  but  no  reference  was  made 
as  to  the  costs  of  the  summons  to  stay,  and  the 
taxing -mastir  disallowed  the  costs  of  that 
summons.  On  summons  to  review  the  taxation  : 
— Held,  that  the  contributory  was  ordered  to 
pay  the  502.  into  court  to  satisfy  such  costs  as 
the  court  should  think  he  ought  to  pay,  and  that 
the  costs  of  the  summons  to  stay,  being  caused 
by  the  appeal,  must  be  paid  out  of  the  502.  in 
court,  and  that  the  court  had  jurisdiction  at  any 
time  to  make  such  order.  Brighton  Livery 
Stables  Company,  In  re,  62  L.  T.  745— V.-C.  B. 

Costs  incurred  in  ascertaining  Partner's 

Share.]  —  By  articles  of  partnership  between 
three  partners,  on  the  death  of  any  partner  the 
survivors  were  entitled  to  take  his  share  at  a 
valuation.  One  of  the  partners  having  died,  his 
executrix  brought  her  action  to  have  it  declared 
that  the  goodwill  was  to  be  included  in  the 
valuation,  and  to  have  the  value  of  the  deceased 

Sartner's  share  in  the  assets  ascertained.  A 
ecree  was  made  declaring  that  the  goodwill 
must  be  valued  as  part  of  the  assets,  and  direct- 
ing accounts.  The  chief  clerk  made  his  general 
certificate,  finding  (inter  alia)  that  two  specified 
leaseholds  belonging  to  the  partnership  were  of 
no  value.  The  plaintiff  took  out  a  summons  to 
vary  the  certificate  by  estimating  these  lease- 
holds as  worth  a  considerable  sum.  The  summons 
was  adjourned  into  court,  and  Bacon,  V.-C, 
refused  to  vary  the  certificate,  but  ordered  the 
costs  of  both  parties  to  be  paid  out  of  the  estate. 
The  defendants  appealed : — Held,  that  it  was 
within  the  discretion  of  the  court  to  order  all 
costs  reasonably  incurred  in  ascertaining  the 
sum  to  be  paid  out  of  the  fund,  and  that  an 
appeal  would  not  lie.  Butcher  v.  Pooler,  24 
Ch.  D.  273  ;  62  L.  J.,  Ch.  930  ;  49  L.  T.  573  ;  32 
W.  R.  306— C.  A. 

To  order  Shorthand  Koto  on  Taxation.] — See 
HUUary  and  Taylor,  In  re,  poet,  col.  532. 

To  order  Taxation  as  between  Solicitor  and 
Client] — See  Andrews  v.  Barnes,  post,  col.  538. 


III.    PARTICULAR  PERSONS. 
1.  PERSONS  SUING  IN  FORMA  PAUPERIS. 

Successful  Plaintiff  —  Taxation.]  —  Under 
Ord.  XVI.  rr.  24,  25,  26,  27,  31,  a  successful 
plaintiff  in  an  action  in  forma  pauperis  tried 
before  a  judge  and  jury  is  entitled,  upon  taxation 
as  against  the  defendant,  to  costs  out  of  pocket 
only,  and  cannot  be  allowed  anything  for 
remuneration  to  his  solicitor  or  fees  to  counsel. 
Carson  v.  Pickersgill,  14  Q.  B.  D.  869  ;  64  L.  J., 
Q.  B.  484  j  62  L.  T.  950 ;  33  W.  R.  689  ;  49  J.  P. 
612— C.  A. 


Bight  to  appear  in  Person.]— The  roles  of 
Ord.  XVI.  do  not  impose  any  obligation  upon  a 
party  who  has  obtained  leave  to  sue  in  forma 
pauperis  to  have  counsel  or  solicitor  assigned  to 
nim  to  conduct  his  case,  and  he  is  therefore 
entitled  to  appear  in  person  where  neither  counsel 
nor  solicitor  have  been  assigned.  Iktcker  v. 
Collinson,  or  Cotterell,  16  Q.  B.  D.  562  ;  55  L.  J., 
Q.  B.  224  ;  54  L.  T.  263  ;  34  W.  R.  354— C.  A. 

See  also  Practice  (Parties). 


2.  IN  OTHER  CASES. 

Judge,  when  Jurisdiction  Impeached.]  — 
Where  a  county  court  judge  appeared  to  a  role 
to  show  cause  why  he  should  not  hear  and  deter- 
mine an  action  remitted  to  him,  and  the  role 
was  discharged ;  in  an  application  for  costs  :— 
Held,  that  as  it  is  not  usual  for  a  judge  to  be 
represented,  unless  the  whole  jurisdiction  of  his 
court  is  in  question,  he  could  not  be  allowed  his 
costs.    Reg.  v.  Stonor,  50  L.  T.  99— D. 

Costs  against  Third  Persons  on  Certiorari.]— 
A  party  who  attempts  to  carry  on  litigation 
under  cover  of  the  protection  usually  afforded 
to  justices  of  the  peace  may  be  ordered  to  pay 
the  costs.    Beg.  v.  Wheatley,  34  W.  R.  257— D. 

Where  Solicitor  a  Party.] — Where  an  action 
is  brought  against  a  solicitor,  who  defends  it  in 
person  and  obtains  judgment,  he  is  entitled  upon 
taxation  to  the  same  costs  as  if  he  had  employed 
a  solicitor,  except  in  respect  of  items  which  the 
fact  of  his  acting  directly  renders  unnecessary. 
London  Scottish  Benefit  Society  v.  ChorUy,  13 
Q.  B.  D.  872  ;  53  L.  J.,  Q.  B.  651 ;  51  L.  T.  100; 
32  W.  R.  781— C.  A. 

Where  one  of  a  body  of  mortgagees  is  a  solicitor, 
and  acta  as  such  in  enforcing  the  security,  he  is 
entitled  to  charge  profit  costs  against  the  mort- 
gagor, whether  the  mortgagees  are  trustees  or 
not.  Donaldson,  In  re,  27  Ch.  D.  644  ;  54  L.  J., 
Ch.  151  ;  51  L.  T.  622— V.-C.  B. 

Where  Solicitor  an  Executor  or  Truates.}- 
See  post,  Solicitor. 

Comptroller— Trade   Mark— Registration.]  — 

The  court  has  no  jurisdiction  to  make  the 
comptroller  pay  the  costs  of  a  successful  applica- 
tion to  register  a  trade  mark,  though  it  will  not 
order  the  applicant  to  pay  the  comptroller's  costs. 
Leaf's  Trade  Mark,  In  re,  33  Ch.  D.  477 ;  55 
L.  J.,  Ch.  740;  65  L.  T.  254;  36  W.  R.  99- 
V.-C.  B. 


IV.    SEVERAL  PARTIES. 

Joinder  of  Plaintiff  —  Separate  Causes  of 
Action.] — Two  plaintiffs  joined  in  one  action, 
claiming  for  separate  and  distinct  causes  of 
action.  The  case  was  referred,  with  power  to 
the  arbitrator  to  enter  judgment,  the  costs  of 
the  cause  to  abide  the  event.  The  arbitrator 
found  in  favour  of  one  plaintiff,  and  against  the 
other,  and  entered  judgment  accordingly.  On 
an  application  to  review  taxation  of  costs  ?— 
Held,  that  the  successful  plaintiff  was  entitled 
to  recover  from  the  defendant  the  whole  of  his 
general  costs  of  the  action,  and  the  defendant 


529 


COSTS— Several  Issues. 


580 


wu  only  entitled  to  recover  from  the  unsuc- 
cessful plaintiff  the  costs  occasioned  by  joining 
such  plaintiff.  Gort  (Viscount)  v.  Rowney,  17 
Q.  B.  D.  625  ;  55  L.  J.f  Q.  B.  541  ;  54  L.  T.  817  ; 
$4  W.  R.  696— C.  A. 

Defsadants  appearing  Separately  —  Separate 
lets  of  Costs.]— Two  sets  of  defendants  joined 
in  delivering  a  defence,  and  appeared  by  the 
suae  solicitor,  bat  were  represented  by  separate 
counsel  at  the  trial,  when  the  action  was  dis- 
missed with  costs.  The  taxing-master  allowed 
one  set  of  costs  only  in  respect  of  counsel,  on 
the  ground  that  the  difference  in  the  defences 
was  not  sufficiently  material  to  justify  appear- 
ance by  separate  counsel : — Held,  on  motion  to 
Tiry  the  certificate,  that  the  question  was  not 
one  for  the  discretion  of  the  taxing-master  ;  and 
the  court  being  of  opinion  that  the  defendants 
had  in  fact  different  cases  by  way  of  defence, 
remitted  the  certificate  to  the  taxing-master  on 
the  ground  that  the  defendants  were  justified  in 
appearing  by  separate  counsel.  Ager  v.  Black- 
lock,  56  L.  T.  890— Kekewich,  J. 

An  action  to  set  aside  a  sale  of  a  life  interest 
to  the  defendants  on  the  ground  of  fraud  was 
dismissed  by  the  House  of  Lords  with  costs 
(11  App.  Cas.  232),  and  their  lordships  directed 
that  the  taxing-master  should  consider  whether 
any  of  the  defendants  who  appeared  separately 
had  sufficient  reason  for  severing  in  their  de- 
fences, and  if  and  in  so  far  as  it  should  appear 
they  had  not,  the  taxing-master  was  to  allow 
only  one  set  of  costs,  or  only  as  many  sets  of 
costs  as  he  should  think  right.  The  taxing- 
master  allowed  a  separate  set  of  costs  to  each  of 
the  six  defendants,  they  having  all  appeared 
separately  : — Held,  that  the  House  of  Lords  had 
delegated  the  decision  of  the  question  as  to  how 
many  sets  of  costs  should  be  allowed  to  the 
taxing-master,  and,  unless  it  was  shown  that  he 
had  not  exercised  his  discretion,  his  decision 
eookl  not  be  appealed  from.  Boswell  v.  Cooks, 
36  Ch.  D.  444  ;  68  L.  T.  97 ;  36  W.  R.  209— 
CA. 


One  Defendant  raising  different  De- 
.] — After  judgment  against  joint  tort- 
feasors, where  one  of  the  defendants  has  severed 
after  defence  and  added  pleas  without  the  con- 
sent of  the  other,  the  general  costs  of  the  action 
*nd  trial  should  be  taxed  against  both  defendants 
jointly,  bat  the  costs  of  and  incidental  to  the 
additional  pleas  against  the  defendant  raising 
them.  Shmmm  v.  Dixon,  22  Q.  B.  D.  99 ;  59 
L.T.  892 ;  37  W.  R.  92— D.  Affirmed  22  Q.  B.  D. 
529;  58  L.  J.,  Q.  B.  183;  60  L.  T.  560  ;  37  W.R. 
457— C.  A. 

Costs  against  Individual  Members  of  Corpora- 
.]  —  The  corporation  of  Dublin  desired  to 
change  the  name  of  a  street ;  in  an  action  by 
householders  for  an  injunction  to  restrain  the 
corporation  from  effecting  the  change : — Held, 
that  the  corporation  were  not  empowered  to 
alter  the  name  where  such  alteration  would  be 
injurious  to  the  householders,  and  costs  were 
awarded  against  certain  members  of  the  corpora- 
tion who  had  taken  an  active  part  in  passing  the 
resolution  to  effect  the  intended  change,  and 
who  had  been  named  special  defendants  in  the 
action.  Anderson  v.  Dublin  Corporation,  16 
h.  K,  Ir.  410— V.-C. 


Body  against  whom  Prohibition  sought— Two 
Sets  of  Costs.] — The  Local  Government  Board 
moved  to  discharge  a  conditional  order  for  a 
prohibition  obtained  against  them  by  the  Kings- 
town commissioners  to  prohibit  them  from  con- 
ducting an  inquiry  as  to  the  propriety  of  making 
certain  provisional  orders.  The  Dublin  corpora- 
tion had  presented  a  memorial  on  which  the 
inquiry  was  founded,  praying  that  the  Board 
would  order  certain  local  acts  to  be  amended  : — 
Held,  that  as  the  Board  had  no  power  to  do 
what  the  corporation  asked,  as  they  were  acting 
in  a  quasi  legislative  capacity,  and  prohibition 
would  not  lie  against  them  ;  and  as  they  were 
justified  in  coming  before  the  court  to  obtain  a 
decision  as  to  their  powers,  costs  must  be  granted 
them  against  both  the  corporation  and  the  com- 
missioners. Kingstown  Commissioners,  Exparte, 
Local  Government  Board,  In  re,  16  L.  K.,  Ir 
160— Ex.  D. 


V.    SEVERAL  ISSUES. 

Reference— "  Costs  to  abide  Event"— Each 
Party  in  part  Successful.]— A  plaintiff  having 
claimed  for  goods  sold  and  delivered,  and  for 
commission,  and  the  defendants  haviDg  counter- 
claimed  for  moneys  collected  by  the  plain- 
tiff on  the  defendants'  account  and  for  work 
and  labour,  the  action  was  referred  to  an  arbi- 
trator under  an  order  of  reference  whereby 
14  the  costs  of  the  cause,  and  the  costs  of  the  re- 
ference and  award,  shall  abide  the  event."  The 
arbitrator  found  the  issues  on  the  claim  in  favour 
of  the  plaintiff,  and  awarded  him  a  sum  of  money 
in  respect  thereof,  and  found  the  issues  on  the 
counter-claim  in  favour  of  the  defendants,  and 
awarded  to  them  a  sum  of  money  in  respect 
thereof.  After  deducting  the  sum  found  for  the 
plaintiff  from  the  sum  found  for  the  defendants, 
a  balance  of  971.  was  due  to  the  defendants  : — 
Held,  that  the  word  "  event "  in  the  order  of  re- 
ference must  be  construed  distributively,  and 
that  judgment  must  be  entered  for  the  de- 
fendants, who  were  entitled  to  the  costs  of  the 
action,  reference,  and  award,  but  that  the  plain- 
tiff was  entitled  to  the  costs  of  the  issues  found 
in  his  favour.  Bain.es  v.  Bromley  (6  Q.  B.  D. 
691)  explained.  Lund  v.  Campbell,  14  Q.  B.  D. 
821 ;  54  L.  J.,  Q.  B.  281 ;  63  L.  T.  900  ;  33  W.  R. 
510— C.  A. 

In  an  action  the  defendants  denied  all  the 
allegations  of  the  statement  of  claim,  and,  as  an 
alternative  defence,  paid  a  sum  of  money  into 
court  in  satisfaction  of  the  plaintiffs  claim.  This 
sum  the  plaintiff  did  not  accept.  The  cause  was 
referred,  the  costs  of  the  cause,  reference,  and 
award  to  abide  the  event.  The  arbitrator  found 
all  the  issues,  except  one  as  to  special  damage, 
in  favour  of  the  plaintiff ;  and  ne  also  found 
that  the  money  paid  into  court  was  enough  to 
satisfy  the  plaintiff's  claim  in  respect  of  the 
subject-matters  of  the  action  : — Held,  that  the 
defendants  were  entitled  to  the  general  costs  of 
the  action  and  award,  and  to  the  costs  of  the 
issues  found  in  their  favour ;  but  that  the  plain- 
tiff was  entitled  to  the  costs  of  the  issues  on 
which  he  had  succeeded,  for  that  the  costs  ought 
in  such  a  case  to  be  taxed  in  the  same  manner 
as  though  the  action  had  been  tried  out  in  the 
ordinary  course  of  law.  Goutard  v.  Carr,  63 
L.  J.,  Q.  B.  55  ;  32  W.  R.  242— C.  A. 
Where  an  action  is  referred  to  an  arbitrator, 


531 


COSTS— Taxation  of. 


632 


"  the  costs  of  the  said  cause,  of  the  reference, 
and  of  the  award  to  abide  the  event,"  and  the 
plaintiff  is  successful  on  his  claim,  and  the  de- 
fendant on  his  counter-claim,  the  amount  re- 
covered by  the  plaintiff  exceeding  the  amount 
recovered  by  the  defendant  on  his  counter-claim, 
the  defendant  is  entitled  to  the  costs  of  the 
issues  on  which  he  is  successful,  notwithstanding 
that  the  subject-matter  of  the  claim  and  counter- 
claim is  the  same.  Pearson  v.  Ripley,  50  L.  T. 
629  ;  32  W.  R.  463— D. 

On  a  reference  to  arbitration,  the  costs  "to 
abide  the  event,"  the  word  "  event "  means  the 
event  of  the  whole  action,  and  where  the  plaintiff 
is  substantially  successful  in  the  action  he  is 
entitled  to  the  general  costs  of  the  action,  and 
the  defendant  only  to  the  costs  of  those  issues  on 
which  he  has  been  successful,  notwithstanding 
that  on  the  reference  the  defendant  has  recovered 
more  upon  his  counterclaim  than  the  plaintiff  on 
his  claim,  and  that  the  success  of  the  plaintiff  on 
the  whole  action  is  due  to  the  defendant  having 
paid  money  into  court  prior  to  the  reference. 
Waring  v.  Pearman,  50  L.  T.  633  j  32  W.  R. 
429— D. 

An  action  and  all  matters  in  difference  were 
referred,  the  costs  of  the  cause,  reference,  and 
award  to  abide  the  event : — Held,  that  the  word 
"  event "  must  be  construed  distributively ;  and 
that  upon  an  award  by  the  arbitrator  deciding  in 
the  plaintiff 's  favour  upon  the  claim,  but  in  the 
defendant's  favour  upon  a  matter  in  difference 
not  raised  in  the  action,  the  plaintiff  was  entitled 
to  the  costs  of  the  action  and  the  defendant  to 
the  costs  of  the  matter  on  which  he  had  suc- 
ceeded. Hawke  v.  Brear,  14  Q.  B.  D.  841  ; 
54  L.  J.,  Q.  B.  315  ;  52  L.  T.  432  ;  33  W.  R.  613 
— D. 


Plaintiff  recovering  less  than  £20.1— 


In  an  action  of  contract  the  defendant  counter- 
claimed.  By  the  award  of  a  special  referee  it 
was  found  that  the  plaintiffs  were  entitled  on 
their  claim  to  13/.  12*.  6d.,  and  that  the  defen- 
dant was  entitled  on  the  counter-claim  to 
63/.  8*.  6*7.  : — Held,  that  by  reason  of  the  pro- 
visions of  the  5th  section  of  the  County  Courts 
Act,  1867,  the  plaintiffs  were  not  entitled  to  the 
costs  of  the  issues  found  for  them  on  the  claim. 
Lund  v.  Campbell  (supra),  distinguished. 
Ahrbecker  or  Ahrbecket  v.  Frost,  17  Q.  B.  D. 
606  ;  55  L.  J.,  Q.  B.  477  ;  66  L.  T.  264  ;  34 
W.  R.  789— D. 

Trial  by  Jury— Claim  and  Counter-claim,] — 

In  an  action  brought  for  a  liquidated  demand 
of  25/.  for  work  and  labour,  the  defendant 
pleaded  a  cross-liquidated  demand  as  a  counter- 
claim, and  the  jury  found  for  the  plaintiff  on  the 
statement  of  claim  for  22/.  8*.  6d.,  and  for  the 
defendant  on  the  counter-claim  of  9/.  13*.,  and 
the  judge  at  the  trial  directed  judgment  to  be 
entered  for  the  plaintiff  for  12/.  15*.  6d.,  with 
his  costs.  The  taxing-master  allowed  the  defen- 
dant full  costs,  and  on  motion  to  review  his 
taxation,  the  Exchequer  Division  declared  the 
plaintiff  entitled  to  his  full  costs,  and  directed 
judgment  to  be  entered  that  the  plaintiff  do 
recover  from  the  defendant  22/.  8*.  6rf.  in  respect 
of  the  cause  of  action  in  the  statement  of  claim, 
with  costs,  and  that  the  defendant  do  recover 
from  the  plaintiff  9/.  13*.  in  respect  of  the  cause 
of  action  in  the  counter-claim,  with  costs  ;  that 
the  said  sums  and  costs  so  recovered  should  be 


setoff,  and  the  party  in  whose  favour  there 
should  be  a  balance  should  recover  from  the 
other  such  balance  :— Held,  that  one  judgment 
should  be  entered  for  the  plaintiff  for  12/.  15*.  (ft, 
and  that  the  plaintiff  having  recovered  less  than 
20/.  was  entitled  to  no  costs.  In  such  a  case  a 
true  set-off  is  not  deprived  of  its  real  character 
of  a  defence  by  being  described  and  pleaded  as 
a  counter-claim.  Ryan  v.  Fraser,  16  L.  R.,  Ir. 
253 — C.  A.    And  see  ante,  coL  620. 

Action  for  Recovery  of  Land.] — Where,  in  an 
action  for  the  recovery  of  land,  the  plaintiff  has 
succeeded  as  to  certain  definite  closes,  and  the 
defendant  has  succeeded  as  to  other  closes, 
although  there  was  only  one  demise,  the  verdict 
is  to  be  entered  distributively,  and  the  case 
treated  as  if  there  were  separate  issues.  The 
plaintiff  therefore  will  get  the  general  costs  of 
the  action  and  the  costs  of  the  issues  found  for 
him,  and  the  defendant  the  costs  of  those  issues 
on  which  he  was  successful.  Jones  v.  Curling, 
13  Q.  B.  D.  262  ;  53  L.  J.,  Q.  B.  373  ;  50  L.  T. 
349  j  32  W.  R.  651— C.  A. 

VI.    TAXATION  OF  C08T8. 

1.    BETWEEN  PARTY  AND  PARTY. 
a.    Practice. 

Objections  must  be  raised  in  Writing.]  — 

Where  a  party  in  objecting  to  the  taxation  of  his 
bill  took  various  objections  which  were  overruled 
by  the  taxing-master : — Held,  that  on  a  sum- 
mons to  vary  the  certificate  he  could  not  raise 
any  points  not  Bet  forth  in  his  written  objec- 
tions. Nation,  In  re,  Nation  v.  Hamilton,  57 
L.  T.  64&— Kay,  J. 

Jurisdiction  to  order  Shorthand  Koto  to  bo 
taken.  ] — A  taxing-master,  a  chief  clerk,  or  even 
a  judge,  has  no  jurisdiction  to  order  shorthand 
notes  of  the  evidence  to  be  taken ;  but  where, 
in  a  case  of  a  lengthy  and  complicated  nature, 
the  taxing-master  had  suggested  that  a  short- 
hand note  of  the  evidence  before  him  should  be 
taken,  and  the  parties  had  acceded  to  that  sug- 
gestion and  had  acted  upon  it,  and  each  side  had 
employed  a  separate  shorthand-writer,  the  court 
held  that  under  the  special  circumstances  of  the 
case  the  taxing-master  was  right  in  directing  the 
unsuccessful  party  to  pay  one  half  of  the  costs 
of  the  shorthand  notes.  'Hilleary  and  Taylor, 
In  re,  36  Ch.  D.  262  ;  56  L.  J.,  Ch.  758  ;  56  L  T. 
867  ;  35  W.  R.  705— C.  A. 

Taxation  by  District  Registrar.] — See  Wilson* 
In  re,  ante,  col.  527. 

b.  What  Goats  Allowed, 
i.  Counsel — Fees. 

Throe  Counsel — Junior  Counsel  called  within 

Bar.] — Before  the  trial  of  an  action  the  junior 
pounsel  for  the  plaintiff  was  called  within  the 
bar ;  at  the  trial,  which  lasted  eight  days,  three 
counsel  were  engaged,  viz.  a  leading  Queen's- 
counsel,  the  Queen's  counsel  who  had  formerly 
been  junior  in  the  case,  and  a  junior.  The  judge 
decided  in  the  plaintiff's  favour.  The  taxing- 
master  disallowed  the  fees  of  the  leading  Queen's 
counsel : — Held,  that  the  taxing-master  had 
exercised  his  discretion  rightly,  as  the  case 


683 


COSTS— Taxation  of. 


584 


sot  one  in  which  it  was  essentially  necessary  for 
the  purpose  of  doing  justice  between  the  parties, 
that  the  plaintiff  should  employ  three  counsel. 
Parish  v.  Poole,  34  W.  B.  365— North,  J. 

_  Amount  claimed.] — A  collision  occurred 
between  the  P.  and  the  M.,  in  consequence  of 
which  the  P.  also  collided  with  the  D.,  doing 
damage  to  the  latter  to  the  extent  of  2,7002. 
The  P.  and  the  D.  -  commenced  actions  against 
the  M. ;  but  the  D.  stood  by  until  the  P.'s  action 
was  decided.  Three  counsel  were  employed  in 
the  action  on  behalf  of  the  D.  :— Held,  that, 
considering  the  amount  of  the  damage,  the 
allowance  of  the  costs  of  three  counsel  was  not 
unreasonable.  The  Mammoth,  9  P.  D.  126  ;  53 
L  J,  P.  70 ;  51  L.  T.  459 ;  33  W.  R.  172 ;  5 
Asp.  M.  C.  289— Butt,  J. 

lumber  of  Counsel— Arbitration.] — There  is 
no  universal  rule  that  in  an  arbitration  the  fees  of 
one  counsel  only  can  be  allowed.  Orient  Steam 
Ratigation  Company  v.  Ocean  Marine  Insurance 
Csmpany,  35  W.  B.  771— D. 

Amount  of  Counsel's  Pees.]— In  an  action  for 
damage  by  collision,  where  the  damage  to  one 
vessel  amounted  to  20,000/.,  and  to  the  other 
rcasel  to  2,000/.,  three  counsel  were  instructed 
on  behalf  of  the  plaintiffs,  and  the  fees  marked 
on  their  briefs  were  respectively  seventy-five 
guineas,  fifty  guineas,  and  thirty  guineas,  and 
the  registrar  on  taxation  reduced  these  fees  to 
sixty  guineas,  forty  guineas,  and  twenty-seven 
guineas.  The  court,  on  appeal  from  the  taxation, 
allowed  the  original  fees,  holding  that  they  were 
proper  fees  in  a  case  of  that  magnitude.  The 
City  of  Luchnow,  51  L.  T.  907 ;  5  Asp.  M.  C. 
340-Butt,  J. 

Feet— Settlement  of  Writ— Joinder  of  Issue.] 
—The  taxing  officer  has  discretionary  power 
to  allow,  as  between  party  and  party,  fees  to 
counsel  on  (a)  settlement  of  writ  of  summons, 
(b)  settlement  of  reply,  though  the  latter  is 
simply  a  joinder  of  issue  on  the  preceding  plead- 
ing. TUdall  v.  Richardson,  20  L.  R.,  Ir.  199— 
b.D. 

iefmher  Fee*.]  — Under  Ord.  LXV.  r.  27 
(48),  the  taxing-master  has  a  discretion  in  the 
special  circumstances  of  the  case  to  disallow 
refresher  fees.  Smith  v.  Wills,  53  L.  T.  386  ; 
34  W.  R.  30— Pearson,  J. 

The  trial  of  an  action  with  witnesses  occu- 
pied four  whole  days  and  about  three  hours 
on  a  fifth  day.  Subsequently,  at  the  request  of 
the  judge,  the  action  was  re-heard  and  evidence 
grren  on  one  point,  when  the  previous  judgment 
*as  adhered  to ;  this  further  hearing  occupied 
ubitantially  the  whole  day.  The  taxing-master 
allowed  refreshers  for  the  2nd,  3rd,  4th,  and  5th 
days,  but  refused  to  allow  refreshers  for  the  re- 
hearing on  the  ground  that  the  case  had  occupied 
kss  than  five  hours  on  the  fifth  day  :— Held,  that 
the  taxing-master  ought  to  have  allowed  refreshers 
for  the  sixth  day,  and  that  Ord.  LXV.  rule  27, 
nb-rule  48,  did  not  prevent  him  from  doing  so. 
BmkII  v.  Coahs,  35  W.  R.  711— North,  J. 
Affirmed  36  Ch.  D.  444 ;  58  L.  T.  97— C.  A. 

- — Argument  in  Court  of  Appeal.] — An 
action  was  tried  before  a  judge  without  a  jury, 
nd  the  verdict  and  judgment  were  for  the 


plaintiffs.  The  defendants  appealed  to  the  Court 
of  Appeal,  in  which  court  the  argument  lasted 
for  four  days,  and  the  Court  of  Appeal  reversed 
the  decision  of  the  judge,  and  gave  judgment  for 
the  defendants  with  costs.  On  taxation  of  the 
costs  of  the  arguments  in  the  Court  of  Appeal 
the  master  refused  to  allow  certain  refresher  fees 
to  the  defendants*  counsel  in  respect  of  three  of 
the  days  occupied  in  arguing  in  the  Court  of 
Appeal,  on  the  ground  that  he  had  no  jurisdiction 
to  allow  them,  as  Ord.  LXV.  r.  27,  sub-r.  48, 
provided  for  the  allowance  of  refreshers  only 
when  a  trial  was  had  with  viva  voce  evidence. 
The  defendant  appealed  : — Held,  that  the  master 
had  a  discretion,  and  such  arguments  were  in- 
cluded in  the  work  performed  within  sub-r.  30  of 
the  same  order,  and  that  the  matter  ought  to  go 
back  to  him  to  allow  the  refresher  fees  if  he  saw 
fit  to  do  so.  Svensden  v.  Wallace,  16  Q.  B.  D. 
27  ;  55  L.  J.,  Q.  B.  65  ;  63  L.  T.  665  ;  34  W.  R. 
151— D. 

Where  the  hearing  of  an  appeal  from  the 
Chancery  Division  occupies  more  than  one  day, 
the  taxing-master  has  a  discretion  to  allow 
additional  fees  to  counsel,  in  the  shape  of  a  daily 
allowance  or  otherwise,  though  no  viv&  voce 
evidence  has  been  adduced  before  the  Court  of 
Appeal,  such  fees  not  being  treated  as  refreshers 
in  the  sense  in  which  refreshers  are  dealt  with 
on  taxation  as  fixed  sums,  but  as  an  allowance 
by  way  of  addition  to  the  original  fees,  on  the 
ground  that  such  fees  have  by  miscalculation 
been  fixed  too  low.  This  discretion,  however,  is 
to  be  exercised  with  jealousy,  since  there  is  not 
in  such  a  case  the  same  difficulty  in  fixing  the 
proper  fee  at  first  as  there  is  in  cases  where  oral 
evidence  is  adduced,  the  probability  of  a  case 
lasting  long  in  argument  being  a  matter  which 
ought  to  be  taken  into  account  at  the  time  of 
delivering  the  brief.  Scensden  v.  Wallace  (16 
Q.  B.  D.  27)  explained.  Easton  v.  London  Joint 
Stock  Bank,  38  Ch.  D.  25 ;  57  L.  J.,  Ch.  329  ; 
58  L.  T.  364  ;  36  W.  R.  375— C.  A. 


ii.  Expenses  of  Evidence. 

Transfer  of  Action — Costs  of  Correspondence 
before  Motion.] — On  the  hearing  of  an  opposed 
motion  for  the  transfer  of  an  action  from  one 
judge  of  the  Chancery  Division  to  another,  the 
Lord  Chancellor  made  an  order  directing  the 
transfer,  and  that  the  respondent  should  pay 
the  costs  of  the  motion.  Before  the  notice  of 
motion  was  given,  the  moving  party  wrote  to 
the  respondent  asking  whether  he  would  con- 
sent to  the  transfer,  which  he  refused  to  do.  In 
taxing  the  costs  under  the  order  of  the  Lord 
Chancellor,  the  taxing-master  disallowed  the 
costs  of  this  correspondence.  On  summons  to 
review  the  taxation : — Held,  that  the  taxing- 
master  was  right.  Norton  v.  Fentmch,  54  L.  J., 
Ch.  632  ;  52  L.  T.  341— Kay,  J. 

Inspection  of  Documents.]— As  between  party 
and  party,  no  costs  can  be  allowed  in  respect  of 
notices  to  inspect  documents,  or  of  attendance 
for  the  purpose  of  inspecting  documents,  at  the 
office  of  the  solicitor  to  whose  client  the  docu- 
ments belong.  The  discretion  given  to  the 
taxing-master  by  Ord.  LXV.  r.  27  (17)— re- 
peated from  Rules  of  Supreme  Court,  1875 
(Costs),  schedule,  r.  15 — only  applies  to  taxation 
of  costs  as  between  solicitor  and  client.     Wick- 


535 


COSTS—  Taxation  of. 


536 


steed  v.  Biggs,  54  L.  J.,  Ch.  967  ;  52  L.  T.  428— 
Pearson,  J. 

Shorthand  Notes.]- Shorthand  writer's  notes 
on  a  reference  are  as  a  general  rule  properly  dis- 
allowed on  taxation.  Antothreptic  Steam  Boiler 
Company,  In  re,  59  L.  T.  632— D. 

On  Appeal.]— See  Appeal. 

Printi  of  Record  in  another  Aotion.]— A  col- 
lision occurred  between  the  P.  and  the  M.,  in 
consequence  of  which  the  P.  also  collided  with 
the  D.  The  P.  and  the  D.  commenced  actions 
against  the  M. ;  but  the  D.  stood  by  until  the 
P.'s  action  was  decided.  In  the  P.'s  action  the 
M.  was  found  alone  to  blame.  Prints  of  the 
evidence  taken  in  the  P.'s  action  were  obtained 
by  the  solicitors  for  the  D.  from  the  solicitors 
for  the  P.,  and  were  used  in  the  action  by  the 
D.  against  the  M.:— Held,  that  the  solicitors  for 
the  D.  were  entitled  to  charge  the  defendants 
M.  per  folio  for  the  prints  of  the  record.  The 
Mammoth,  9  P.  D.  126  ;  53  L.  J.,  P.  70  ;  51  L.  T. 
459  ;  33  W.  R.  172  ;  5  Asp.  M.  C.  289— Butt,  J. 

Perusals— Exhibit!.]— The  costs  of  perusals  of 
exhibits  to  affidavits  are  not  allowed  on  taxation 
under  the  Rules  of  Court,  August,  1875  (Costs), 
Ord.  VI.,  without  a  special  direction  to  the 
taxing-master,  who  by  the  form  of  order  has 
liberty  to  allow  a  special  charge  for  perusal  and 
consideration  of  the  exhibits,  the  amount  of  such 
charge,  if  any,  to  be  in  his  discretion.  Be  Rosaz, 
In  re,  Rymer  v.  Be  Rosaz,  24  Ch.  D.  684 ;  53 
L.  J.,  Ch.  448  ;  49  L.  T.  133— North,  J. 

Preparation  for  Trial— Discontinuance  before 
Notice  of  Trial.]— By  Ord.  LXV.  r.  27,  special 
allowances  in  respect  of  (sub-rule  9)  "  such  just 
and  reasonable  charges  and  expenses  as  appear 
to  have  been  properly  incurred  in  procuring 
evidence,"  shall  apply  to  all  taxations  in  the 
Supreme  Court :— Held,  that  under  this  rule  a 
master  had  a  discretion  to  allow  charges  and 
expenses  properly  incurred  by  the  defendant  in 
procuring  evidence  where  the  plaintiff,  having 
given  no  notice  of  trial,  subsequently  discon- 
tinued the  action.  Windham  v.  Bainton,  21 
Q.  B.  D.  199  ;  57  L.  J.,  Q.  B.  519  ;  36  W.  R.  832 

■■  "Ay« 

Detaining  Witnesses  on  Shore.]— Semble,  the 
cost  of  detaining  witnesses  on  shore  may  be 
allowed,  although  such  witnesses  are  not  called. 
This  is  a  matter  in  the  discretion  of  the  registrar. 
The  City  o/Lucknoto,  61  L.  T.  907  :  5  Asp.,  M.  C. 
340— Butt,  J.  »         r » 


iii.  Writ  and  Interlocutory  Proceedings, 

Tender  of  Debt  after  Issue  of  Writ.]— A  de- 
fendant cannot  escape  paying  the  cost  of  a  writ 
of  summons  by  tendering  the  amount  sued  for 
without  costs  before  service,  but  after  issue  of 
the  writ.  O'Malley  v.  Kilmalloch  Union,  22 
L.  R.,  Ir.  326— Ex. 

Judgment  on  Admissions  in  Pleading— Motion 
or  Summons.] — In  an  action  to  restrain  the 
publication  of  a  trade  circular,  the  defen- 
dants by  their  defence  offered  to  submit  to  a 
perpetual  injunction  (in  the  terms  of  an  interim 


injunction  which  had  been  previously  granted), 
'*  to  be  obtained  on  a  summons  issued  for  that 
purpose."  The  plaintiffs  set  the  action  down  for 
trial  on  motion  for  judgment  on  the  admissions 
in  the  pleadings,  and  delivered  to  the  defen- 
dants a  copy  of  minutes  of  the  proposed  judg- 
ment, which  was  identical  with  the  judgment  to 
which  the  defendants  had  offered  to  submit  :— 
Held,  that,  under  the  circumstances,  the  plain- 
tiffs ought  to  have  proceeded  by  summons  in 
chambers,  and  that,  consequently,  they  would 
only  be  allowed  the  costs  which  they  would 
have  properly  incurred  if  they  had  proceeded  by 
summons.  London  Steam  Dyeing  Company  v. 
Bigby,  57  L.  J.,  Ch.  505  :  58  L.  T.  724  ;  &  W.  R. 
497— North,  J. 

Motion  adjourned  to  Trial.] — When  a  motion 
in  an  action  is  adjourned  or  stands  over  until 
the  trial  of  the  action,  at  which  judgment  is 
obtained  by  one  of  the  parties  with  costs  against 
the  other  party,  the  costs  of  the  motion  are 
allowed  to  the  successful  party  on  taxation, 
without  special  direction  in  the  judgment 
Gosnell  v.  Bishop,  38  Ch.  D.  385  ;  67  L.  J.,  Ch. 
642  ;  36  W.  R.  505— Kekewich,  J. 

Application  for  Interim  Injunction.]  — An 
order  made  on  notice  and  continuing  an  injunc- 
tion with  costs  will,  in  the  absence  of  special 
directions  to  the  contrary,  include  the  costs  of 
an  interim  injunction  previously  obtained  on  an 
ex  parte  application.  Blakey  v.  HaU,  56  L.  J., 
Ch.  568  ;  56  L.  T.  400  ;  35  W.  R.  592— Chitty,  J. 


o.    Scale  of  Taxation. 

i  Higher  or  Lower  Scale. 

Pending  Proceedings.]— Ord.  LXV.  r.  9,  does 
not  apply  to  an  action  pending  at  the  commence- 
ment of  the  new  rules  ;  and,  according  to  the 
former  practice,  the  question  whether  costs  shall 
be  allowed  on  the  higher  or  the  lower  scale  is  a 
matter  for  the  taxing-master.  Edgington  v. 
Fitzmaurice,  32  W.  R.  848— Denman,  J. 

Amount  at  8take.]—  The  court  will  not  allow 
costs  on  the  "higher  scale"  unless  special  cir- 
cumstances of  urgency  or  difficulty  are  shewn. 
The  amount  at  stake  in  an  action  is  not  of  itself 
a  sufficient  reason  for  such  allowance.  The 
Horace,  9  P.  D.  86 ;  53  L.  J.,  P.  64 ;  50  L.  T. 
595  ;  32  W.  R.  755  ;  5  Asp.,  M.  C.  218—  Hannea, 
P. 

On  a  petition  for  the  appointment  of  new  trus- 
tees, the  amount  of  the  fund  alone  does  not  con- 
stitute a  "special  ground  arising  out  of  the 
nature  and  importance  or  the  difficulty  or  urgency 
of  the  case"  for  ordering  costs  on  the  higher 
scale  within  Ord.  LXV.  r.  9.  Spettigue's  Trusts, 
In  re,  32  W.  R.  385— Pearson,  J. 

Scientific  Witnesses.]— Costs  on  the  higher 
scale  should  be  allowed  in  patent  cases  where 
scientific  witnesses  are  necessarily  called.  El- 
lington v.  Clark,  58  L.  T.  818— C.  A. 

Intricacy.]—  Where  the  nature  and  intricacy 
of  a  case  render  it  necessary,  costs  on  the  higher 
scale  may  be  allowed.  Farrar  v.  Farrars,  69 
L.  T.  619— Chitty,  J. 

Manner  in  which  Caee  conducted.]— In  con- 


587 


COSTS— County  Courts  Act. 


638 


sidering  whether  the  costs  of  a  cause  shall  be 
awarded  upon  the  higher  scale,  the  court  will 
hate  regard  to  the  importance  of  the  questions 
in  issue  in  the  action,  and  also  as  to  the  manner 
in  which  the  case  has  been  prepared  and  con- 
ducted at  the  trial.  Davits  v.  Bavies,  36  Ch.  D. 
359;  56  L  J.,  Ch.  481  ;  56  L.  T.  401  ;  35  W.  R. 
697— Kekewich,  J. 

Although  a  case  as  presented  to  the  court  may 
not  be  of  special "  difficulty  "  within  the  meaning 
of  Ord.  XLV.  r.  9,  leave  will  be  given  to  the 
taxing-master  to  tax  all  or  any  part  of  the  costs 
on  the  higher  scale,  if  it  appears  on  such  taxation 
that  the  difficulty  was  removed  by  the  expendi- 
tnre  of  time,  money,  and  learned  industry. 
Prater  v.  Brescia  Steam  Tramways  Company, 
56  L.  T.  771— Kekewich,  J. 

Special  Knowledge.] — Where  a  case  is  one  re- 
quiring special  knowledge  on  the  part  of  those 
concerned  in  it,  it  is  one  of  those  exceptional 
cases  in  which  costs  on  the  higher  scale  ought  to 
be  allowed.  Moseley  v.  Victoria  Rubber  Co.,  57 
L  T.  142— Chitty,  J. 

Witnesses  examined  in   Court — Long  Argn- 

■ats.] — Costs  should  be  allowed  on  the  higher 
scale  whenever  witnesses  are  properly  brought 
into  court  and  a  good  deal  of  time  is  necessarily 
occupied  in  the  argument.  Lydney  and  Wigpool 
Ire*  Ore  Company  v.  Bird,  31  Uh.  D.  328  ;  55 
L  JM  Ch.  383  ;  54  L.  T.  242  ;  34  W.  R.  437— 
Pearson,  J, 

Importance  and  Difficulty.! — An  action  for 
the  establishment  of  a  right  of  great  pecuniary 
value,  and  involving  difficult  questions  of  fact 
and  law,  was  heard  at  great  length  on  Ave  days, 
and  judgment  was  given  in  favour  of  the  plaintiff. 
The  principal  defendant  appealed.  The  appeal 
was  argued  on  four  days  and  judgment  reserved. 
Ultimately  the  decision  was  reversed,  and  the 
action  dismissed  with  costs: — Held,  that,  al- 
though the  case  was  important  and  difficult,  the 
court  could  not  say  that  there  were  special 
grounds  arising  ont  of  its  importance  and  diffi- 
culty which  would  warrant  giving  costs  on  the 
higher  scale.  Williamson  v.  North  Stafford- 
ikire  Railway,  32  Ch.  D.  399  ;  55  L.  J.,  Ch.  938  ; 
KLT. 452—C.  A. 

In  a  summons  under  the  Settled  Land  Act, 
1882,  to  obtain  the  direction  of  the  court  as  to 
ale  of  certain  settled  estates  and  the  disposal  of 
the  purchase-money,  the  court,  on  account  of  the 
difficulty  ei  the  case,  allowed  the  costs  of  the 
application  on  the  higher  scale.  Chaytor's 
Settled  Estate  Act,  In  re,  25  Ch.  D.  651  ;  50 
L  T.  88;  32  W.  R.  617— Pearson,  J.  See  also 
Danes  v.  Dories,  and  The  Horace,  supra. 

hjuetions.] — In  the  case  of  an  interlocutory 
injunction,  the  court  refused  to  make  an  order 
that  the  costs  should  be  allowed  on  the  higher 
Kale,  though  an  important  question  was  raised. 
Grafton  v.  Watson,  51  L.  T.  141— C.  A. 

A  submission  to  a  perpetual  injunction  with 
costs  by  a  defendant  in  an  action  for  the  in- 
fringement of  a  trade-mark  does  not  afford  a 
special  ground  upon  which  the  court  will  direct 
taxation  of  the  costs  upon  the  higher  scale  under 
the  provisions  of  Ord.  LXV.  r.  9.  Hudson  v. 
Oqtrby,  50  L.  T.  323  ;  32  W.  R.  566— Pearson, 

An  injunction  was  granted  restraining  a  dis- 


trict board  of  works  from  erecting  posts  by  the 
side  of  public  footpaths  so  as  to  interfere  with 
the  due  enjoyment  of  the  plaintiffs  market,  but 
costs  on  the  higher  scale  were  refused.  Horner 
v.  Whitechavel  Board  of  Works,  54  L.  J.,  Ch. 
161— V.-C.  B. 

Salvage  Action.] — Salvage  services  were  ren- 
dered by  the  steamship  G.  to  the  steamship  B. 
and  her  cargo  under  a  towage  agreement  which 
made  no  reference  to  cargo.  Salvage  was  awarded 
in  respect  of  ship  and  freight,  but  in  a  second 
salvage  action  in  personam  against  the  owners 
to  recover  salvage  for  services  to  the  cargo  : — 
Held,  that  there  was  no  liability  on  the  owners 
to  pay  salvage  for  the  cargo,  but  that  costs  on 
the  higher  scale  could  not  be  awarded  them,  as 
there  were  no  exceptional  circumstances  in  the 
case.  The  Raisby,  Cardiff  Steamship  Company 
v.  Barwich,  53  L.  T.  56  ;  6  Asp.  M.  C.  473— 
Hannen,  P. 

ii.   As  between  Solicitor  and  Client. 

Jurisdiction  to  Order.]— The  Court  of  Chan- 
cery formerly  had,  and  the  High  Court  of  Justice 
now  has,  in  matters  of  equitable  jurisdiction,  a 
general  discretionary  power  to  give  costs  as 
between  solicitor  and  client.  Whether  the  High 
Court  has  the  same  power  in  matters  of  common 
law  jurisdiction,  quaere.  Cochbvrn  v.  Edwards 
(18  Ch.  D.  449)  questioned.  Mordue  v.  Palmer 
(6  L.  B.,  Ch.  22)  approved.  Andrews  v.  Barnes, 
39  Ch.  D.  133  ;  57  L.  J.,  Ch.  694 ;  58  L.  T.  748  ; 
36  W.  B.  706  ;  58  J.  P.  4— C.  A 

An  action  was  brought  by  the  vicar  and 
churchwardens  of  a  parish  to  recover  from  the 
defendants  a  fund  of  small  amount  which  had 
been  handed  over  to  them  upon  trust  for  a 
charitable  purpose  connected  with  the  parish, 
but,  as  the  plaintiffs  alleged,  upon  a  condition 
which  had  become  incapable  of  fulfilment.  The 
plaintiffs  failed  to  make  out  their  case.  The 
court,  in  dismissing  the  action,  being  of  opinion 
that  it  had  been  brought  wholly  without  justifi- 
cation, ordered  the  plaintiffs  to  pay  the  costs  of 
the  defendants  as  between  solicitor  and  client ; 
and  the  Court  of  Appeal  refused  to  interfere 
with  the  judgment,    A. 

hi.   County  Court  Scale.— See  infra,  VII. 


VII.    COUNTY  COUBTB  ACT. 

Becovery  of  leas  than  £80— Discretion  as  to 

Quantum.] — Order  LXV.,  r.  1,  has  given  a  judge 
complete  discretion,  not  only  as  to  the  incidence, 
but  also  as  to  the  quantum,  of  the  costs  of  an 
action  in  the  Superior  Court.  Consequently, 
the  costs  of  suit,  which  a  judge  at  chambers  may, 
by  rule  or  order,  allow  a  plaintiff,  under  s.  5  of 
the  County  Courts  Act,  1867,  are  not  confined  to 
Superior  Court  costs,  but  may  be  costs  on  the 
County  Court  scale.  Neaves  v.  Spooner,  68 
L.  T.  164  ;  36  W.  B.  257— C.  A. 

Where  Solicitor  is  Plaintiff]— S.  5  of 

the  County  Courts  Act,  1867,  which  deprives 
plaintiffs  in  actions  commenced  in  the  High 
Court  of  costs  if  less  than  20/.  in  contract,  or 
10Z.  in  tort,  is  recovered,  applies  to  an  action  in 
which  a  solicitor  is  plaintiff.     Blair  v.  Eisler, 


539 


COSTS— Interest  on. 


540 


21  Q.  B.  D.  185  ;  57  L.  J.,  Q.  B.  512  ;  59  L.  T. 
337  ;  36  W.  R.  767— D. 

Claim  on  Contract  and  Counter-claim.]— 

In  an  action  of  contract  the  defendant  counter- 
claimed.  By  the  award  of  a  special  referee  it 
was  found  that  the  plaintiffs  were  entitled  on 
their  claim  to  131. 12*.  6d.,  and  that  the  defen- 
dant was  entitled  on  the  counter-claim  to 
63Z.  8*.  6rf. :  —Held,  that  by  reason  of  the  pro- 
visions of  the  5th  section  of  the  County  Courts 
Act,  1867,  the  plaintiffs  were  not  entitled  to  the 
costs  of  the  issues  found  for  them  on  the  claim. 
Lund  v.  Campbell  (14  Q.  B.  D.  821),  distin- 
guished. Ahrbeeker  or  AhrbeeJtet  v.  Frost,  17 
Q.  B.  D.  606 ;  55  L.  J.,  Q.  B.  477  ;  56  L.  T.  264  ; 
34  W.  R.  789— D.  See  Ryan  v.  Eraser,  ante, 
col.  532. 

Lass  than  £50  recovered  "  in  the  Aotion."]— 

An  action  on  a  partnership  account  was  by 
consent  referred  to  an  arbitrator.  The  terms  of 
reference  were  that  "all  matters  in  difference 
between  the  parties  in  the  action  "  were  to  be 
referred,  and  that  "the  costs  of  the  action" 
should  abide  the  award.  Subsequently  to  this 
order  of  reference,  the  parties  agreed  to  submit 
to  the  arbitrator  a  further  matter  of  account 
outside  the  action.  The  arbitrator  awarded  407. 
to  the  plaintiff  on  his  claim,  and  found  that  a 
further  sum  of  14Z.  2*.  was  due  to  him  on  the 
subsequent  account: — Held,  that  the  plaintiff 
had  recovered  "in  the  action"  less  than  502., 
and  therefore  came  under  the  provisions  of 
Ord.  LXV.  r.  12,  of  the  Rules  of  1883,  whereby 
the  costs  recoverable  were  limited  to  county 
court  costs  in  actions  of  contract  where  less  than 
50Z.  is  recovered,  unless  by  leave  of  the  court 
the  High  Court  scale  is  allowed.  Emmett  v. 
Heyes,  36  W.  R.  237— D. 

Reference — Costs  to  abide  event — High 

Court  8eale.] — An  action  of  contract  was  referred 
by  consent,  the  costs  to  abide  the  event  of  the 
award,  and  judgment  on  the  award  to  be  entered 
in  the  High  Court.  The  arbitrator  found  for  the 
plaintiff  for  a  sum  less  than  502.  and  judgment 
was  entered  accordingly  : — Held,  that  a  judge  at 
chambers  had  jurisdiction  under  Ord.  LXV.  r.  12 
to  order  the  plaintiff's  costs  to  be  taxed  on  the 
High  Court  scale.  Hyde  v.  Beardsley,  18  Q. 
B.  D.  244  ;  56  L.  J.,  Q.  B.  81  ;  57  L.  T.  802 ;  35 
W.  R.  140— D. 

Breach  of  Promise  of  Marriage.] — By 

Ord.  LXV.  r.  12,  in  actions  founded  on  contract 
in  which  the  plaintiff  recovers  by  judgment  or 
otherwise  a  sum  (exclusive  of  costs)  not  ex- 
ceeding 501.,  he  shall  be  entitled  to  no  more  costs 
than  he  would  have  been  entitled  to  had  he 
brought  his  action  in  a  county  court,  unless  the 
court  or  a  judge  otherwise  orders : — Held,  that 
this  rule  does  not  apply  to  actions  which  could 
not  have  been  brought  in  a  county  court  Say- 
wood  v.  Cross,  14  Q.  B.  D.  53 ;  54  L.  J.,  Q.  B. 
17  ;  51  L.  T.  601  ;  33  W.  R.  136— D. 

Counter-claim  against  Third  Party.  ]— Semble, 
that  when  a  counter-claim  is  against  a  person 
not  a  party  to  the  action,  s.  24,  sub-s.  3,  of  the 
Judicature  Act,  1883,  and  Order  XXI.  rr.  11, 12, 
13,  14,  do  not  render  s.  5  of  the  County  Courts 
Act,  1867,  applicable  to  such  a  counter-claim. 
Lewin  v.  Trimming,  21  Q.  B.  D.  230;  59  L.  T. 
511  ;  37  W.  R.  16— D. 


I  Foreclosure  Action.] — In  an  action  to  fore- 
close a  mortgage  for  652.,  where  both  plaintiff 
and  defendant  resided  at  the  same  place:— 
Held,  that  the  plaintiff  was  entitled  onlytosoch 
costs  as  he  would  have  obtained  in  the  county 
court  Simons  v.  Me  Adam  (6  L.  R.,  Eq.  324) 
followed.  Crozier  v.  Domett,  31  Ch.  D.  67  ;  55 
L.  J.,  Ch.  210 ;  53  L.  T.  692  ;  34  W.  R.  267- 
V.-C.  B. 


VIII.    DTTEREST  OH  G08TS. 

From  what  Time  Running.] — By  a  judgment 
delivered  before  the  Rules  of  the  Supreme  Court, 
1883,  came  into  operation,  an  action  was  dis- 
missed and  the  plaintiff  was  ordered  to  pay  the 
costs,  but  the  judgment  contained  no  direction 
as  to  the  date  from  which  interest  on  the  costs 
was  to  run.  Taxation  took  place,  and  the  tax- 
ing-master's certificate  was  made  after  the  Rules 
of  1883  had  come  into  operation: — Held, that 
the'.  Rules  of  1883  applied  to  the  taxation  pro 
ceedings  and  therefore  that  interest  on  the  costs 
ran,  not  from  the  date  of  the  taxing-master's 
certificate  as  the  Rules  of  1875  provided,  bnt 
from  the  date  of  the  judgment  as  the  form  No.  1, 
Appendix  H.  to  the  Rules  of  the  Supreme  Court, 
1883,  directs.  Boswell  v.  Cooks,  57  L.  J.,  Ch. 
101 ;  67  L.  T.  742 ;  36  W.  R.  66— C.  A. 

Where  costs  are  given  by  a  judgment  and 
taxed,  interest  on  such  costs  is  payable,  not 
from  the  date  of  the  taxing-master's  certificate 
but  from  the  date  of  the  judgment.  London 
Wharfing  Company,  In  re,  54  L.  J.,  Ch.  1137 ; 
53  L.  T.  112  ;  33  W.  R.  836— Chitty,  J. 

Bate.] — As  a  general  rule,  in  the  absence 


of  any  special  order,  interest  at  the  rate  of  42. 
per  cent,  per  annum  is  payable  on  the  costs  of  an 
action  from  the  date  of  the  judgment.  Land- 
owners' West  of  England  Drainage  Company  t. 
Ashford,  33  W.  R.  41— Pearson,  J. 


IX    SET-OFF. 

Cross  -  Judgments   in   distinct    Aetions.]  — 

Whether  r.  14  of  Ord.  LXV.  of  the  Rules  of 
Court,  1883,  does  or  does  not  apply  to  the  case 
of  cross-judgments  in  distinct  actions  between 
the  same  parties,  the  allowing  a  set-off  for 
damages  or  costs  between  parties  is  a  matter  in 
the  discretion  of  the  court.  Edwards  ▼.  Hopb 
14  Q.  B.  D.  922  ;  54  L.  J.,  Q.  B.  379  ;  63  L.  T. 
69  ;  33  W.  R.  672— C.  A. 


X.    MEAK8  OF  RECOVEBIHG. 

Injunction — Motion — Proceeding  to  Trial  for 
Costs.] — Where  upon  an  interlocutory  motion 
in  an  action  the  plaintiff  obtains  the  relief  which 
he  seeks,  he  is  bound  to  make  an  application  to 
the  defendant  to  have  the  costs  disposed  of  on 
motion,  and  unless  he  does  so  is  precluded  from 
having  the  extra  costs  occasioned  by  going  on  to 
trial.    But  if  the  defendant  refuses  to  allow  the 

matter  to  be  disposed  of  on  motion,  or  if  there  is 
any  question  remaining  open  between  the  parties 
to  be  decided,  the  case  cannot  be  so  dealt  with. 
Sonnenschein  v.  Barnard,  57  L.  T.  712 — Stir- 
ling, J. 


641 


COSTS— Appeal  for. 


542 


XL    APPEAL    FOX  COSTS. 


Mai  by  Jury—"  Good  Cause  "  not  shewn.  ]— 

In  id  action  for  the  recovery  of  several  closes  of 
land  the  jnrv  gave  a  verdict  for  the  plaintiff  for 
about  half  the  land  claimed,  and  for  the  defen- 
dant for  the  remainder.    The  judge  before  whom 
the  action  was  tried  ordered  that  the  costs  of 
both  parties  should  be  added  together,  divided 
equally,  and  that  each  party  should  pay  half  the 
total  thus  arrived  at : — Held,  that  an  appeal 
coold  be  brought  from  this  order,  for  that  good 
came  most  exist  before  the  jurisdiction  to  make 
the  order  could  arise,  and  that  whether  facts  did 
or  did  not  "exist  which  would  constitute  good 
cause  could  be  the  subject  of  an  appeal,    fanes 
▼.  Artey,  13  Q.  B.  D.  262  ;  53  L.  J.,  Q.  B.  373  ; 
50  L.  T.  349 ;  32  W.  R.  651— C.  A. 

It  Jvrisdietion  to  Order  Payment.  ]— Where  a 
master  has  exceeded  his  jurisdiction  by  ordering 
one  party  to  pay  the  costs  of  the  action  on  an 
interpleader  summons,  an  appeal  will  lie. 
Benton  v.  Maddox,  12  Q.  B.  D.  100  ;  53  L.  J.f 
Q.  B.  67;  50  L.  T.  123  ;  32  W.  B.  183— D. 

Appellant  failing  on  Question!  of  Snbstanoe.] 
—Unless  the  appellant  can  succeed  on  the  ques- 
tions of  substance  he  cannot  ask  the  Court  of 
Appeal  to  review  the  question  of  costs.  There 
m  no  fixed  rule  of  law  on  this  point.  The  rule 
is  that  inasmuch  as  costs  are  not  the  subject  of 
appeal,  unless  a  substantial  variation  is  made  in 
the  oider  appealed  from,  the  fact  that  a  sub- 
stantial question  has  been  raised  will  not  of 
itself  be  enough  to  allow  the  question  of  costs  to 
he  gooe  into  on  the  appeal.  Games  v.  Bonnor, 
*4L  J.,  Ch,  517 ;  33  W.  B.  64— Per  L.  C. 

(Mar  on  Solicitor  personally  to  Pay  Costs.] 
—An  order  that  the  costs  of  an  application  at 
chambers  on  behalf  of  a  client  snail  be  paid 
hj  his  solicitor  personally  is  not  within  the 
Judicature  Act,  1873,  s.  49,  and  therefore  is 
•abject  to  appeal  without  leave.  Bradford ,  In 
«» 15  Q.  B.  D.  635  ;  53  L.  J.,  Q.  B.  65  ;  50  L.  T. 
"0 ;  32  W.  B.  238— C.  A. 

Appeal  by  Mortgagor  after  Allowance  of 
Casts  to  Mortgagee.}— Although  a  mortgagee 
*ho  has  been  deprived  of  his  costs  on  the  ground 
of  misconduct  may  appeal  from  the  order  of  the 
Jtdge,  yet  if  the  judge,  notwithstanding  charges 
of  misconduct,  allows  a  mortgagee  his  costs,  the 
mortgagor  has  no  right  of  appeal ;  because  the 
net  of  the  misconduct,  if  proved,  would  bring 
toe  costs  within  the  discretion  of  the  judge. 
ttarfef  v.  Jones,  33  Ch.  D.  80 ;  56  L.  J.,Ch.  161 ; 
fcL.  T.  331 ;  35  W.  B.  88— C.  A. 

(War  depriving  Trustee  of  Costs.]- A  trustee 
**J  appeal  from  an  order  depriving  him  of  costs 
oi  the  ground  of  misconduct,  notwithstanding 
'•  1  of  Ord.  LX  V.  KnigUs  Trusts  or  Will,  In  re, 
*Ch.  D.  82  ;  50  L.  T.  550 ;  32  W.  B.  417— C.  A. 

Adndidstration  Aetion  by  Beeiduary  Legatee 
-lem«ng  Oanee.]— Order  LXV.  r.  1,  of  the 
Soles  of  the  Supreme  Court,  1883,  directing 
that  the  costs  of  ail  proceedings  in  the  Supreme 
Coon,  including  the  administration  of  estates 
**d  trusts,  shall  be  in  the  discretion  of  the 
eoort  or  a  judge,  applies,  in  the  case  of  causes 


and  matters  pending  on  the  24th  of  October, 
1883,  when  those  rules  came  into  operation,  only 
to  the  costs  of  proceedings  taken  on  and  after 
that  day  ;  and  the  costs  incurred  in  proceedings 
taken  in  such  causes  and  matters  before  that 
day,  although  not  adjudicated  upon  until  after- 
wards, are  not  within  that  rule.  In  an  action 
for  administration  by  one  of  several  residuary 
legatees,  all  the  proceedings  except  those  on 
subsequent  further  consideration  were  taken 
before  Ord.  LXV.  r.  1,  came  into  operation, 
though  the  costs  were  not  adjudicated  upon 
until  the  order  on  further  consideration,  which 
was  made  afterwards: — Held,  that  an  appeal 
would  lie  as  to  the  costs  of  such  prior,  though 
not  as  to  the  costs  of  such  subsequent,  proceed- 
ings. Farrow  v.  Austin  (18  Ch.  D.  58)  followed, 
McClellan,  In  re,  McClellan  v.  McClellan, 
29  Ch.  D.  495  ;  54  L.  J.,  Ch.  659  ;  52  L.  T.  741  ; 

33  W.  B.  888— C.  A. 

Administration  Aotion— Costs  out  of  Fund.] 
— An  action  was  brought  by  a  married  woman  ana 
her  infant  children  by  their  next  friend  against 
a  trustee  an  executor,  asking  for  administration  of 
the  trusts  of  a  will  and  settlement,  and  for 
accounts  of  the  principal  and  income  of  the  trust 
property,  making  charges  of  misconduct  against 
the  defendant  and  seeking  to  charge  him  with 
the  costs  of  the  action.  At  the  trial  an  order 
was  made  for  administering  the  trusts,  with 
special  inquiries  as  to  the  alleged  acts  of  miscon- 
duct. On  taking  the  accounts  it  appeared  that 
the  defendant  had  before  action  given  a  correct 
account  of  the  capital,  but  that  in  the  accounts 
he  had  rendered  of  the  income  he  had  not  ac- 
counted for  nearly  so  much  as  he  ought.  The 
special  cases  of  misconduct  alleged  against  him 
were  not  substantiated.  The  Court  ordered  the 
plaintiffs'  costs  relating  to  the  income  account, 
and  the  defendant's  costs  of  the  rest  of  the 
action,  to  be  taxed  and  Bet  off  against  each  other. 
The  plaintiffs  appealed,  asking  that  their  costs 
or  at  all  events  those  incurred  before  the  Rules 
of  1883,  except  those  ordered  to  be  paid  by  the 
defendant,  might  be  paid  oat  of  the  trust  pro- 
perty : — Held,  that  the  order  was  not  appeal- 
able, for  that  the  costs  of  a  hostile  action,  seek- 
ing to  charge  the  defendants  with  costs  on  the 
ground  of  acts  of  misconduct,  were  not  within 
the  old  rule  of  the  Court  of  Chancery  that  the 
plaintiff  in  an  administration  action  was  entitled 
to  costs  out  of  the  fund  unless  there  were  special 
grounds  for  depriving  him  of  them,  but  were  in 
the  discretion  of  the  judge.     Williams  v.  Jones, 

34  Ch.  D.  120  ;  56  L.  J.,  Ch.  1014  ;  56  L.  T.  68— 
C.A. 

Order  on  Defendant  Executor  to  pay  Costs.] 

— The  decision  of  a  judge  of  the  High  Court  of 
Justice,  ordering  a  defendant  executor  to  pay  the 
costs  of  an  administration  action,  on  the  ground 
that  he  has  caused  litigation  by  refusing  to  fur- 
nish accounts,  is  subject  to  appeal.  L.  and  P. 
were  the  executors  appointed  by  the  will  of  X., 
who  died  in  May,  1883.  P.  proved  the  will  in 
June,  1883.  On  the  20th  May,  1884,  the  solicitor 
of  L.  wrote  a  letter  to  P.,  saying  that  L.  had  in- 
structed him  to  take  out  administration  to  the 
estate  as  joint  executor  with  P.,  and  asking  P.  to 
furnish  accounts.  On  the  31st  May,  1884,  the 
same  solicitor  wrote  another  letter  to  P.,  asking 
for  a  reply  to  his  former  letter.  Neither  letter 
contained  any  threat  of  litigation.     P.  denied 


1 


548 


COSTS— COUNTY. 


544 


that  he  had  received  either  letter,  and  there  was 
no  strict  evidence  that  either  letter  was  posted. 
On  the  2nd  July,  1884,  L.  proved  the  will,  and  on 
the  9th  August,  1884,  P.  was  served  with  the  writ 
in  an  administration  action  brought  by  L.  No 
threat  of  litigation  had  been  made  in  the  mean- 
time. The  judge  deprived  P.  of  his  costs,  and 
ordered  him  to  pay  the  costs  of  the  acticn  : — 
Held,  on  appeal  (further  evidence  having  been 
admitted),  that  no  misconduct  had  been  estab- 
lished, and  that  P.  was  entitled  to  his  costs. 
Pugh,  In  re,  Lewi*  v.  Pritchard,  57  L.  T.  858— 
C.  A. 

Contempt  of  Court — Order  to  pay  Costs.] — 

The  power  of  a  judge  to  order  payment  of  costs 
in  cases  where  an  application  is  made  to  commit 
a  person  for  contempt  of  court  depends  on  the 
question  whether  or  not  the  contempt  has  been 
committed,  and  therefore  where  on  such  an 
application  an  order  has  been  made  that  the 
person  shall  pay  costs  of  the  application,  an 
appeal  from  such  an  order  is  not  an  appeal  for 
costs  only.  Emmer*on,  In  re,  Bawling*  v. 
Emmereon,  57  L.  J.,  P.  1 — C.  A. 

Defendant  ordered  to  pay  Costs  of  Unsuccessful 
Claim.] — By  articles  of  partnership  between  three 
partners,  on  the  death  of  any  partner  the  sur- 
vivors were  entitled  to  take  his  share  at  a  valua- 
tion. One  of  the  partners  having  died,  his 
executrix  brought  her  action  to  have  it  declared 
that  the  goodwill  was  to  be  included  in  the 
valuation,  and  to  have  the  value  of  the  deceased 

Sartner's  share  in  the  assets  ascertained.  A 
ecree  was  made  declaring  that  the  goodwill 
must  be  valued  as  part  of  the  assets,  and  direct- 
ing accounts.  The  chief  clerk  made  his  general 
certificate,  finding  (inter  alia)  that  two  specified 
leaseholds  belonging  to  the  partnership  were  of 
no  value.  The  plaintiff  took  out  a  summons  to 
vary  the  certificate  by  estimating  these  lease- 
holds as  worth  a  considerable  sum.  The  summons 
was  adjourned  into  court,  and  Bacon,  V.-C, 
refused  to  vary  the  certificate,  but  ordered  the 
costs  cf  both  parties  to  be  paid  out  of  the  estate. 
The  defendants  appealed  : — Held,  that  the  case 
did  not  come  within  the  rule  in  Foster  v.  Great 
Western  Railway  (8  Q.  B.  D.  25,  515),  viz., 
that  the  court  cannot  make  a  successful  defen- 
dant pay  the  costs  of  a  plaintiff  who  has  wholly 
failed ;  but  that  it  was  within  the  discretion  of 
the  court  to  order  all  costs  reasonably  incurred 
in  ascertaining  the  sum  to  be  paid  out  of  the 
fund,  and  that  an  appeal  would  not  lie.  Butcher 
v.  Pooler,  24  Ch.  D.  273  ;  62  L.  J.,  Ch.  930  ;  49 
L.  T.  573  ;  32  W.  R.  305— C.  A. 

References  in  Admiralty  Court.]— By  Ord. 
LXV.  r.  1,  the  costs  of  all  proceedings  are  in 
the  discretion  of  the  court,  and  therefore  the 
general  rule  of  practice  in  the  Admiralty  Court 
as  to  the  costs  of  references,  viz.,  that  when  more 
than  a  fourth  is  struck  off  a  claim  each  party  pays 
his  own  costs,  and  when  more  than  a  third  the 
claimant  pays  the  other  party's  costs,  may  be 
appealed  against  and  is  wrong,  and  the  court 
must  exercise  its  discretion  according  to  the 
circumstances  of  each  particular  case.  The 
Friedeberg,  10  P.  D.  112  ;  65  L.  J.,  P.  75 ;  52  L. 
T.  837  ;  33  W.  B.  687  ;  5  Asp.  M.  C.  426— C.  A. 

Action  dismissed  for  want  of  Prosecution.] — 
The  statutable  right  of  a  defendant  to  the  costs 


of  an  action  in  the  Chancery  Division  which  had 
been*  dismissed  for  want  of  prosecution  wis 
repealed  by  42  &  43  Vict,  c  59,  which  repeals 
so  much  of  4  &  5  Anne,  c.  3,  as  gives  such  coats, 
and  though  the  practice  in  accordance  with  such 
statutable  right,  and  as  regulated  by  Ord. 
XXXIII.  r.  10,  of  the  Chancery  Consolidation 
Orders  of  1860,  was  preserved  by  s.  4  of  42  &  43 
Vict.  c.  69,  yet  Ord.  LXV.  r.  1,  of  the  rules  of 
1883  has  changed  such  practice,  so  that  the  costs 
of  a  defendant  where  such  action  has  been  dis- 
missed for  want  of  prosecution  are  now  in  the 
discretion  of  the  juoge,  and  therefore  his  order 
as  to  such  costs  is  by  s.  49  of  the  Judicature  Act, 
1873,  not  subject  to  appeal.  Snelling  v.  Pulling, 
29  Ch.  D.  85  j  52  L.  T.  335  ;  33  W.  R.449-C.A. 

Breach  of  Injunction — Order  as  to  Costs.]— 

When  the  jurisdiction  of  a  judge  to  inflict  costs 
on  a  party  arises  from  his  being  guilty  of  s 
breach  of  an  injunction  or  other  misconduct,  an 
appeal  lies  as  to  costs,  although  the  judge  makes 
no  order  except  that  the  party  shall  pay  costs. 
Steven*  v.  Metropolitan  JDistrict  Railway,  29 
Ch.  D.  60 ;  62  L.  T.  832— C.  A. 

Special  Leave— Interfering  with  Discretioi.] 
— Where  an  appeal  from  an  order  as  to  costs 
which  are  left  by  law  to  the  discretion  of  the 
judge  is  brought  by  leave  of  the  judge  under  the 
49th  section  of  the  Judicature  Act,  1873,  the 
Court  of  Appeal  will  still  have  regard  to  the 
discretion  of  the  judge,  and  will  not  overrule  his 
order  unless  there  has  been  a  disregard  of  prin- 
ciple or  misapprehension  of  facta.  Gilbert,  I* 
re,  Gilbert  v.  Huddlestone,  28  Ch.  D.  649;  54 
L.  J.,  Ch.  761  ;  52  L.  T.  8  ;  33  W.  R.  832-0.  A. 


COUNCILLOR. 


See  CORPORATION. 


COUNSEL. 

See  BARRISTER. 


COUNTERCLAIM. 

See  PRACTICE  AND  PLEADING. 


COUNTY. 

Rate— Liability  of  Borough— Main  Boad*.]- 

By  a  local  act,  passed  in  1874,  the  limits  of  the 
borough  of  Middlesborough  were  extended,  and 
all  lands,  &c,  within  the  extended  area,  and  all 
persons  in  respect  of  the  same,  were  exempted 
44  from  all  county  rates,  save  only  in  respect  of 


545 


COUNTY   COURT. 


546 


the  purposes  for  which  any  county  rates  are  now 
leviable  within  the  existing  borough  ; "  and  the 
act  farther  "provided  that  the  urban  sanitary 
authority  should  be  liable  to  the  maintenance 
and  repair  of  all  streets  and  roads,  being  public 
highways  within  the  extended  area,  and  that  the 
inhabitants  should  not,  in  respect  of  any  lands, 
ftc  within  that  area,  be  liable  to  any  payment 
in  respect  of  the  making  or  repairing  of  any 
highway  beyond  the  limits  thereof.  At  the  time 
of  the  passing  of  the  act  general  county  rates 
were  leviable  within  the  existing  borough  for  all 
imposes  for  which  general  county  rates  could  be 
levied  in  any  part  of  the  riding,  but  those  pur- 
poses did  not  include  the  maintenance  of  any 
main  or  other  roads  outside  the  limits  of  the 
borough.  By  s.  13  of  the  Highways  and  Loco- 
motives (Amendment)  Act,  1878,  any  road  which 
has  ceased  to  be  a  turnpike  road  in  manner  de- 
scribed by  the  act,  shall  be  deemed  to  be  a  "  main 
road,"  and  one-half  of  the  expense  incurred  by 
the  highway  authority  in  the  maintenance  of  such 
road  shall,  as  to  every  part  thereof  within  any 
highway  area,  be  contributed  out  of  the  county 
rate : — Held,  that  the  provisions  of  the  local  act 
did  not  exempt  the  inhabitants  of  the  extended 
area  of  the  borough  from  liability  to  pay  county 
rates,  under  s.  13  of  the  Highways  and  Locomo- 
tives (Amendment)  Act,  1878,  in  respect  of  the 
maintenance  of  main  roads  outside  the  limits  of 
the  extended  area.  Middlesborough  Overseers  v. 
Yorlukire  (A:  J2.)  Justices,  12  Q.  B.  D.  239  ;  32 
W.  R.  671—  C.  A. 

Boromgh  with  Separate  Court  of  Quarter 
.] — The  parish  of  R.  was  subject  to  the 
jurisdiction  of  quarter  sessions  of  S.,  but  not  to 
those  of  the  county  in  which  it  was  situate.  In 
1878  B.,  with  a  part  of  the  county  called  the 
" added  area"  was  put  under  commissioners  for 
paving.  &c,  by  a  local  act,  which  provided  that  if 
a  charter  were  granted  to  the  whole  district,  the 
quarter  sessions  of  8.  should  have  jurisdiction 
over  the  " added  area,"  and  that  the  "added 
srea'*  should  cease  to  be  liable  to  county 
rates.  In  1884  a  charter  was  granted,  which 
incorporated  the  whole  district  as  the  borough 
of  R. : — Held,  that  the  borough  of  R.  was  a 
borough  having  a  separate  court  of  quarter  ses- 
90U8,  and  that  the  "  added  area  "  was  no  longer 
liable  to  county  rates.  A  separate  court  of 
quarter  sessions  in  s.  150  of  the  Municipal  Cor- 
porations Act,  1882,  means  a  court  separate  from 
that  of  the  county.  St.  Lawrence  (  Overseers)  v. 
Jkmt  JJ.,  51  J.  P.  262— D. 


to   pay  Superannuation   of  Prison 
Prisons. 


liability  for  Repair  of  Main  Roads.  ]->Sec  Way. 
Ctuty  Vote.] — See  Election  Law. 


COUNTY  COURT. 

1.  Officers,  546. 

1  Jurisdiction  and  Power  of  547. 

3.  Actions  remitted  to. 

a.  In  what  cases,  550. 

b.  Practice  after  Action  remitted,  552. 


4.  Transfer  from  County  Court,  554. 

5.  Practice. 

a.  In  General,  554. 

b.  Costs,  556. 

6.  Appeal. 

a.  In  what  Cases,  557. 

b.  Mode  of  and  time  for,  559. 

c.  Practice,  560. 

1.  Officers. 

High   Bailiff —  Fees — Possession   Money.  ] — 

Where  a  claim  is  made  to  goods  taken  in  execu- 
tion by  the  high  bailiff  of  a  county  court,  and 
the  execution  creditor  sends  notice,  under  Ord. 
XXVII.  r.  l,of  the  County  Court  Rules,  1886. 
of  his  admission  of  the  claim  to  the  high  bailiff, 
who  withdraws  from  possession,  the  judge  of  the 
county  court  has  power  to  award  possession 
money  up  to  the  time  of  the  receipt  of  such 
notice  to  the  high  bailiff,  and  the  high  bailiff 
can  recover  such  possession-money  from  the 
execution  creditor  by  action  in  the  county  court, 
if  the  judge  in  the  exercise  of  his  discretion  is  of 
opinion  that  the  circumstances  of  the  case  are 
such  that  possession-money  ought  to  be  awarded. 
Thomas  v.  Peek,  20  Q.  B.  D.  727  ;  57  L.  J.,  Q.  B. 
497  ;  36  W.  R.  606— D. 

Foreign  District — Jurisdiction  of  Judge 


of  Court  out  of  which  Warrant  originally  issued.] 
— See  Reg.  v.  Shropshire  County  Court  Judge, 
post,  col.  548. 

Warrant    addressed    to— Executed   by 

Clerk — Effeot  of.] — A  warrant  of  arrest  issued  in 
an  action  in  rem,  instituted  for  collision,  in  the 
City  of  London  Court,  and  directed  to  the  high 
bailiff  of  the  said  court  and  others  the  bailiffs 
thereof,  is  not  duly  executed  if  executed  by  a 
clerk  in  the  bailiff's  office  who  is  not  a  bailiff, 
and  hence  the  master  of  the  vessel  so  arrested  is 
not  guilty  of  contempt  of  court  in  removing  her. 
The  Palomares,  52  L.  T.  57  ;  5  Asp.  M.  C.  343— D. 

Semble.  if  the  warrant  had  been  addressed  to 
the  clerk  as  an  officer  of  the  court,  it  might, 
under  the  provisions  of  the  County  Courts 
Admiralty  Jurisdiction  Act,  1868,  s.  23,  have  been 
duly  served  by  him.    lb. 

Illegal  Seixure— Eatiflcation.]— Where, 


on  a  claim  being  made  to  goods  seized  by  mistake 
by  a  bailiff,  the  execution  creditor  does  not 
direct  the  bailiff  to  give  up  the  goods  to  the 
claimant,  but  appears  and  contests  his  title  in 
interpleader  proceedings : — Held,  no  evidence  of 
a  ratification  by  the  execution  creditor  of  the 
bailiff's  detention.  Toppin  v.  Buckerjield,  1  C.  & 
E.  157— Cave,  J. 

Assault  on  Bailiff— Exeoution  of  Duty.]— C, 
being  under- bailiff  of  county  courts,  was  left  on 
certain  premises  in  execution  of  a  warrant  to  levy 
on  goods  of  D.  Having  no  refreshment  provided 
for  him,  he  went  out  to  a  public-house,  a  mile 
distant,  and  took  his  warrant  with  him.  On  his 
return  he  was  assaulted  by  D.,  to  prevent  his  re- 
entry : — Held,  that  C.  was  in  the  execution  of 
his  duty  in  returning,  and  that  D.  was  liable  to 
be  convicted  under  9  k  10  Vict.  c.  95,  s.  114. 
Coffin  v.  Dyke,  48  J.  P.  757— D. 

Non-liability  of  Begistrar  and  Bailiff  acting 
under  Warrant.]— 8.  19  of  13  &  14  Vict.  c.  61, 
and  s.  6  of  15  &  16  Vict.  c.  54,  protect  the  regis- 
trar of  a  county  court  and  the  bailiff  and  his 

T 


1 


547 


COUNTY    COURT. 


548 


assistants  from  liability  to  be  sued  in  an  action 
for  seizing  the  goods  of  a  party  under  a  warrant 
of  the  court  signed  by  the  registrar  and  under 
the  seal  of  the  court,  even  assuming  that  the 
judge  had  no  jurisdiction  to  make  the  order  upon 
which  the  warrant  is  founded.  Aspey  v.  Janet, 
54  L.  J.,  Q.  B.  98  ;  33  W.  R.  217— C.  A. 

Section  6  of  15  &  16  Vict.  c.  54  also  affords  a 
like  protection  to  any  person  who  acts  under  a 
warrant  so  issued.    lb. 


2.  Jurisdiction  and  Poweb  op. 

Ejectment  —  Determination  of  Tenanoy — 
"Legal  Kotiee  to  quit." J— By  s.  50  of  the 
County  Courts  Act,  1856,  jurisdiction  in  eject- 
ment is  given  to  the  county  courts  in  cases 
where  neither  the  rent  nor  the  value  of  the 
premises  exceeds  50Z.  a  year,  and  the  tenant's 
term  and  interest  "  shall  have  expired,  or  shall 
have  been  determined  either  by  the  landlord  or 
the  tenant  by  a  legal  notice  to  quit." — The 
plaintiff  let  to  the  defendant  a  house  for  three 
years  at  a  rent  of  SI.  6*.  Sd.  a  month,  payable 
monthly;  the  agreement  of  tenancy  contained 
a  power  of  re-entry  on  non-payment  of  any 
part  of  the  rent  for  twenty -one  days  after  the 
day  of  payment,  or  in  case  of  the  breach  or 
non-performance  of  any  of  the  conditions  in  the 
agreement.  A  month's  rent  having  been  in 
arrear  for  more  than  twenty-one  days,  the 
plaintiff  gave  the  defendant  notice  to  quit  at 
the  end  of  the  next  month  of  the  term,  alleging 
as  breaches  non-payment  of  rent  and  a  breach 
of  a  condition  in  the  agreement : — Held,  that 
a  "  legal  notice  to  quit "  must  be  taken  to  mean 
the  notice  to  quit  required  by  law  and  not  one 
depending  on  the  express  stipulation  of  the 
parties ;  that  the  tenancy  had  not,  therefore, 
been  determined  within  the  meaning  of  the 
section,  and  that  an  action  to  recover  possession 
of  the  premises  could  not  be  brought  in  the 
county  court.     Friend  v.  Shaw,  20  Q.  B.  D.  374  ; 

57  L.  J.,  Q.  B.  225  ;  58  L.  T.  89 ;  36  W.  R.  236  ; 
52  J.  P.  438— D. 

11  Agreement  for  Sale,  Purchase,  or  Lease  of 
any  Property" — Footpath.] — A  plaint  was 
entered  in  a  county  court  claiming  specific  per- 
formance of  an  agreement  that  the  plaintiff 
should  have  the  free  and  exclusive  use  of  a 
footpath,  and  that  the  defendant  would  not 
grant  permission  to  any  other  person  to  use  it, 
and  also  claiming  damages  for  an  alleged  breach 
of  the  agreement : — Held,  on  rule  for  prohibition, 
that  the  agreement  was  not  "  for  the  sale,  pur- 
chase, or  lease  of  any  property"  within  the 
meaning  of  s.  9  of  the  County  Courts  Act,  1867, 
and  that  prohibition  must  therefore  issue  as  to 
the  claim  for  specific  performance,  but  that  the 
action  must  proceed  as  to  the  claim  for  damages. 
Reg.   v.    Westmoreland   County    Court   Judge, 

58  L.  T.  417  ;  36  W.  R.  477— D. 

Title  to  Lands — Apportionment  of  Bent.] — By 
the  County  Courts  Act,  1867,  s.  12,  jurisdiction 
is  given  to  the  county  courts  "  to  try  any  action 
in  which  the  title  to  hereditaments  shall  come  in 
question  where  neither  the  value  of  the  lands, 
tenements,  or  hereditaments  in  dispute,  nor  the 
rent  payable  in  respect  thereof,  shall  exceed  the 
sum  of  twenty  pounds  by  the  year."  The  plain- 
tiff was  the  lessee  of  certain  premises  at  an 


annual  rental  of  56Z.,  including  a  party-wall 
which  separated  his  house  from  that  of  the 
defendant,  who  denied  the  plaintiff's  title  to  the 
wall,  and  committed  a  trespass  upon  it :— Held, 
that  inasmuch  as  the  only  portion  of  the  premises 
the  title  to  which  was  in  dispute  was  under  the 
annual  value  of  20Z.,  the  county  court  had  juris- 
diction to  try  the  action.  Stolworthy  v.  P<nwK, 
55  L.  J.,  Q.  B.  228  ;  54  L.  T.  795— D. 

Detinue  —  Order  for  delivery  of  Spodfle 
Chattel.] — In  an  action  of  detinue  brought  in 
the  county  court,  the  county  court  judge  his 
jurisdiction  to  make  an  order  for  the  delivery 
by  the  defendant  of  the  specific  chattel  wrong- 
fully detained,  without  giving  him  the  option  of 
paying  its  assessed  value  as  an  alternative. 
Winfield  v.  Boothroyd,  54  L.  T.  574  ;  34  W.  B. 
501— D. 

Delivery  up  of  Deposit  Kote  for  over  £60.]- 
The  plaintiff  brought  an  action  in  a  comity 
court  for  the  delivery  up  to  him  of  a  deposit 
note  for  65Z.  which  was  detained  by  the  defen- 
dants.  Upon  an  objection  as  to  the  juris- 
diction :— Held,  that,  the  value  to  the  plaintiff 
of  the  deposit  note  being  merely  the  amount 
represented  by  the  cost  and  trouble  he  would  be 
put  to  in  proving  his  title  to  the  money  in  the 
event  of  the  note  being  withheld,  the  county 
court  had  jurisdiction  to  try  the  case.  CUgg  t. 
Baretta,  56  L.  T.  775— D. 

Warrant  of  Execution  —  Goods  in  Foreigi 
District  —  Hegligenoe  of  High  Bailiff] -The 
jurisdiction  given  by  s.  115  of  the  County  Courts 
Act,  1846,  to  a  county  court  judge,  enabling  him 
to  order  a  bailiff  to  compensate  a  plaintiff  who 
has  suffered  damage  by  his  neglect,  connivance, 
or  omission  in  levying  an  execution  can  only  be 
exercised  by  him  against  the  bailiffs  of  his  own 
court.  Execution  was  issued  in  a  county  court, 
and  the  warrant  was  sent  for  execution  to  a 
foreign  county  court,  and  the  high  bailiff  of 
such  court  was  guilty  of  negligence  in  levying 
under  it :— Held,  that  the  judge  of  the  home 
court  had  no  power  under  s.  115  to  order  the 
high  bailiff  of  the  foreign  court  to  pay  damages 
to  the  plaintiff,  who  had  been  injured  by  his 
negligence,  and  that  the  high  bailiff  was 
entitled  to  a  prohibition.  Reg.  v.  Shropshire 
County  Court  Judge,  or  Rogers,  20  Q.  B.  D. 
242  ;  57  L.  J.,  Q.  B.  143  ;  58  L.  T.  86  ;  36  W.  B. 
476— D. 

In  Bankruptcy.]— &><?  Bankruptcy  (Jubis- 
diction). 

Committal  of  Witness.] — A  county  court 

judge  sitting  in  bankruptcy  summoned  a  P61*® 
to  attend  and  give  evidence  under  s.  96  of 
the  Bankruptcy  Act,  1869 ;  this  summons  was 
disobeyed,  and  the  judge  thereupon  made  an 
order  for  the  committal  of  the  person  so  sum- 
moned : — Held,  that  the  remedy  for  disobedience 
to  the  summons  was  not  confined  to  that  pre- 
scribed by  s.  96,  but  that  the  judge  had  power, 
under  s.  66  (which  gives  judges  of  county  courts, 
for  the  purposes  of  the  act,  all  the  powers  and 
jurisdiction  of  judges  of  the  High  Court  of 
Chancery),  to  make  the  order  for  committal 
Reg.  v.  Croydon  County  Court  Judge,  13  Q.  B.  D. 
963;  63  L.  J.,  Q.  B.  545  ;  61  L.  T.  102 ;  33  W. B. 
68— C.A. 


549 


COUNTY    COURT. 


550 


la  mm  of  Applications  for  Vow  Trials .]— See 
poet,  cola.  555,  556. 

Onudttoi  Order  under  Debtors  Act — "  Open 

font"]— By  s.  5  of  the  Debtors  Act,  1869  (32 
c 33  Vict  c.  62),  orders  for  committal  of  default- 
ing debtors  must  be  made  by  a  county  court 
judge  in  open  court.  Kenyon  v.  Eastwood,  57 
L  J..  Ql  B.  455— D. 

A  county  court  judge  sat,  for  the  purpose  of 
hearing  summonses  for  committal  under  the  pro- 
thmds  of  s.  5  of  the  Debtors  Act,  1869  (32  i&  33 
Vict  c  62),  and  for  all  business  except  jury 
cms,  in  a  small  room  which  he  also  used  at 
other  times  as  his  private  room  ;  it  communi- 
cated with  a  larger  room,  where  was  the  usual 
raised  bench  and  jury-box,  by  a  door  which  was 
kepi  open  during  the  hearing  of  these  summonses, 
and  the  names  of  the  parties  were,  if  necessary, 
called  in  the  larger  room.  The  public  had  access 
to  toe  smaller  room  as  well  as  the  larger : — Held, 
that  orders  for  committal  made  under  these  cir- 
cumstances were  not  made  in  open  court,  and 
that  they  could  not  be  enforced.    lb. 

Form  of  Order — Prohibition.] — On  the 

hearing  of  a  judgment  summons  in  a  county 
court  the  judge  committed  the  defendant  but 
appended  the  order.    The  only  written  docu- 
ment which  had  been  drawn  up  was  in  the  books 
of  the  county  court,  in  the  form  given  in  the 
schedule    to    the    County  Court    Rules,    1886, 
among  the  forms  of  books  which,  by  Ord.  II. 
r.  2,  the  registrar  is  directed  to  keep,  headed 
**  Book  H. — Summonses  for  Commitment,  Inter- 
pleader, and  Minutes  of  Orders  thereon."    The 
defendant  applied    for  a   prohibition   on   the 
ground  that  the  order  did  not  show  on  its  face 
the  ground  on  which  it  was  issued,  as  required 
by  a.  5,  sub-s.  1  (a),  of  the  Debtors  Act,  1869  :— 
Held,  that  the  Minute  of  the  order  in  Book  H. 
(which  did  not  show  on  its  face  the  ground  on 
which  the  order  was  issued)  was  not  the  order 
within  the  meaning  of  the  Debtors  Act,  but  that, 
» the  order,  if  it  were  afterwards  drawn  up  as 
directed  by  Ord.  XXV.  r.  33,  of  the  County 
Court  Rules,    1886,   would    sufficiently  comply 
with  the  act,  the  application  for  a  prohibition 
must  be  refused.     Harris  v.  Slater,  21  Q.  B.  D. 
359 ;  57  L.  J.,  Q.  B.  539  ;  37  W.  R.  56— D. 

Jurisdiction  to  make  second  Order  on 

flneollatiom  of  flnt]— A  defendant  in  a  county 
court  having  made  default  in  payment  of  20*. 
dse  under  a  judgment,  an  order  was  made  to 
commit  him  to  prison.  He  was,  however,  never 
•nested  nor  imprisoned  under  the  order,  which 
according  to  Ord.  XXV.  r.  33,  of  the  County 
Court  Rules,  1886,  expired  when  a  year  had 

SMd  from  its  date  : — Held,  upon  motion  for 
ibition,  that  as  no  arrest  nor  imprisonment 
ever  taken  place  upon  this  order  before  its 
expiration,  and  as  the  defendant  was  still  in  de- 
fault the  comity  court  judge  had  power  to  make 
*  second  order  of  commitment  Keg.  v.  Stonor 
or  Brampton  County  Court  Judge,  67  L.  J.,  Q.  B. 
*10 :  59  L.  T.  669— D. 

— -  Judgment  in  Superior  Court] — A  county 
com  judge  has  power  to  enforce  the  order  or 
judgment  of  the  High  Court,  where  the  High 
Court  has  made  no  order  for  payment  by  instal- 
ments, by  directing  payment  by  instalments  of 
the  amount  due  under  such  order  or  judgment, 


and  to  commit  the  debtor  in  default.  But  where 
the  High  Court  has  made  an  order  for  payment 
by  instalments  the  county  court  has  no  power  to 
vary  that  order.  Addington,  Ex  parte,  Ives,  In 
re,  16  Q.  B.  D.  666  ;  55  L.  J.,  Q.  B.  246  ;  54  L.  T. 
877  ;  34  W.  R.  693  ;  3  M.  B.  R.  83— Cave,  J. 

Contempt  of  Court —Wilful  Insult — Sentenoo 
before  Warrant.] — A  warrant  for  the  committal 
to  prison  of  a  person  guilty  of  a  wilful  insult 
during  the  sitting  of  a  county  court,  issued  at 
the  rising  of  the  court,  is  regular,  although  the 
judge  orally  sentenced  him  to  pay  a  fine,  with 
imprisonment  in  default,  and  the  sentence  was 
entered  in  the  registrar's  book.  Reg.  v.  Stafford- 
shire County  Court  Judge  or  Jordan,  57  L.  J., 
Q.  B.  483  ;  36  W.  R.  796— C.  A.  Affirming  36 
W.  R.  589— D. 

Form  of  Order — Particulars  should  bo 


stated.]  —-An  order  was  made  in  an  action  in  a 
county  court  upon  one  Harris,  as  acting  manager 
of  a  certain  partnership  fund,  to  pay  into  court 
within  fourteen  days  the  sum  of  65/.  odd,  and  to 
deliver  up  certain  documents.  Harris  did  deliver 
up  the  documents,  but  failed  to  pay  in  the 
money,  whereupon  an  order  of  committal  was 
made  out  by  the  county  court  judge,  on  the 
ground  that  Harris,  in  his  fiduciary  position  had 
been  guilty  of  contempt  of  court  by  neglecting 
to  obey  the  previous  oraer.  The  committal  order 
merely  recited  the  terms  of  the  original  order, 
and  did  not  specify  any  particular  breach : — Held, 
that  it  was  immaterial  whether  the  process  of 
committal  was  by  an  order  of  committal  or  a 
writ  of  attachment,  since  the  distinction  no 
longer  existed  in  chancery  practice,  according  to 
Harvey  v.  Harvey  (26  Ch.  D.  644)  ;  but  that  the 
above  order  was  bad  for  uncertainty,  since  it  did 
not  specify  in  what  particular  Harris  was  guilty 
of  contempt,  so  as  to  enable  him  to  purge  such 
contempt.  Reg.  v.  Lambeth  County  Court 
Judge,  36  W.  R.  475— D. 

In  Admiralty.]— See  Shipping   (Jurisdic- 
tion). 

Over   Friendly   Societies .]  —  See   Friendly 
Society. 


3.  Actions  remitted  to. 
a.  In  what  Cases. 

Counter-claim  for  unliquidated  Damages.]— 
Where  an  action  has  been  remitted  under  19  &  20 
Vict.  c  108,  s.  26,  by  consent  of  the  defendant, 
to  the  county  court  for  trial,  and  the  defendant 
has  appeared  in  the  county  court,  a  writ  of  pro- 
hibition will  not  be  granted,  even  though  there 
be  a  counter-claim  for  unliquidated  damages. 
Mouflet  v.  Washburn,  64  L.  T.  16— D. 

An  action,  although  for  a  sum  not  exceeding 
50Z.,  cannot  be  remitted  under  19  &  20  Vict, 
c.  108,  s.  26,  to  the  county  court  for  trial  if  there 
is  a  counter-claim  for  unliquidated  damages. 
Maehay  v.  Banister,  16  Q.  B.  D.  174  ;  55  L.  J., 
Q.  B.  106  ;  53  L.  T.  667  ;  34  W.  R.  121— D. 

Reduction  of  Claim  below  £50  by  Payment  or 
admitted  Set-off:]— By  30  &  31  Vict.  c.  142 
(County  Courts  Act,  1867),  s.  7,  where  in  any 
action  of  contract  brought  in  any  of  the  superior 

T  2 


651 


COUNTY    COURT. 


552 


courts  of  common  law  the  claim  indorsed  on  the 
writ  does  not  exceed  502.,  or  "  where  such  claim, 
though  it  originally  exceeded  fifty  pounds,  is  re- 
duced by  payment,  an  admitted  set-off,  or  other- 
wise, to  a  sum  not  exceeding  fifty  pounds,"  the 
defendant  may  apply  to  a  judge  at  chambers 
who  may  order  the  action  to  be  tried  in  the 
county  court : — Held,  that  the  section  applies 
where  a  payment  or  set-off  reducing  the  claim 
below  502.  appears  on  the  writ  to  be  admitted 
by  the  plaintiff,  although  such  payment  or  set-off 
is  not  also  admitted  by  the  defendant.  Pereival 
v.  PedUy,  18  Q.  B.  D.  635  ;  35  W.  R.  566— D. 

An  action  for  a  liquidated  demand  exceeding 
502.  cannot  be  remitted  to  the  county  court, 
though  the  amount  of  the  claim  has  been  re- 
duced below  that  sum  by  payment  made  before 
service,  but  after  the  issuing  of  the  writ  of 
summons.  Donohoe  v.  Donohoe,  16  L.  R-,  Ir. 
136— Ex.  D. 

Payment  by  the  defendant  of  part  of  the 
plaintiffs  claim  pursuant  to  a  judgment  under 
Ord.  XIV.  r.  4,  is  a  reduction  of  such  claim 
within  s.  26  of  the  County  Courts  Act,  1856,  and 
when  the  claim  is  reduced  by  such  payment  to  a 
sum  not  exceeding  502.,  the  action  may  be 
remitted  to  a  county  court  for  trial.  Gray  v. 
Hopper,  21  Q.  B.  D.  246  ;  57  L.  J.,  Q.  B.  505 ;  69 
L.  T.  286  ;  36  W.  R.  746— C.  A. 

A  plaintiff  claimed  for  2202.  The  defendant 
denied  the  claim  in  toto,  and  counter-claimed  for 
2032.  The  plaintiff  admitted  the  counter-claim 
and  applied  to  a  judge  at  chambers  for  the 
remittal  of  the  cause  to  the  county  court  under 
8.  26  of  19  k  20  Vict.  c.  108,  as  for  a  claim  not 
exceeding  172.,  and  obtained  an  order  therefor : — 
Held,  that  the  judge  was  right  in  remitting  the 
action,  inasmuch  as  the  amount  in  dispute  did 
not  exceed  502.,  and  that  the  fact  that  the  defen- 
dant "  counter-claimed  "  for  the  amount  due  to 
him  did  not  prevent  the  amount  being  treated 
as  a  "  set-off  "  against  the  plaintiff's  claim  under 
s.  18  of  the  Judicature  Act,  1884.  Lewis  v.  Lewis, 
20  Q.  B.  D.  56  ;  57  L.  J.,  Q.  B.  38  ;  67  L.  T.  715 ; 
36  W.  R.  63— D. 

Action  of  Tort— Slander-— 80  6  31  Vict.  e.  142, 
8. 10.] — Notwithstanding  the  provisions  of  s.  67 
of  the  Judicature  Act,  1873,  which  applies  the 
provisions  of  s.  10  of  the  County  Courts  Act, 
1867,  to  "  all  actions  in  the  High  Court  in  which 
any  relief  is  sought  which  can  be  given  in  a 
county  court,"  there  is  still  jurisdiction,  under 
b.  10  of  the  County  Courts  Act,  1867,  to  remit  an 
action  for  slander  to  a  county  court  for  trial. 
Stokes  v.  Stokes,  19  Q.  B.  D.  419  ;  56  L.  J.,  Q.  B. 
494  ;  36  W.  R.  28— C.  A.  Affirming  66  L.  T.  712 
— D. 


Power  to  make  Order  without  Affidavit.] 


— The  High  Court  has  no  jurisdiction  to  remit 
an  action  of  tort  to  the  county  court  under  8.  10 
of  the  30  &  31  Vict.  c.  142,  without  an  affidavit 
under  such  Bection  as  to  the  plaintiffs  want  of 
means.  Reg.  v.  Maryltbane  County  Court  Judge, 
50  L.  T.  97— D. 


Security  for  Coits— "  Visible  Means. "  ]— 


By  the  term  "  visible  means,"  as  used  in  s.  10  of 
the  County  Courts  Act,  1867,  is  intended  such 
means  as  could  fairly  be  ascertained  by  a  reason- 
able person  in  the  position  of  the  defendant.  On 
the  filing  of  the  affidavit  tbc  jurisdiction  of  the 
judge  arises,  and  he  is  to  satisfy  himself  not 


merely  whether  the  plaintiff  has  any  "visible 
means,"  but  whether  he  has  any  means  at  all  of 
paying  the  costs,  and  the  judge  has  a  judicial 
discretion  whether  he  will  make  the  order.  On 
an  application  under  the  above  section,  it  ap- 
peared from  the  affidavit  that  the  defendant  was 
in  possession  of  certain  property  of  the  plaintiff 
under  a  claim  for  rent  for  5,929/.;  that  the 
plaintiff  had  no  property  upon  which  an  execu- 
tion under  a  judgment  for  2,4042.  could  be  levied ; 
that  his  furniture  had  been  sold  under  an  execu- 
tion, and  that  he  had  assigned  his  property  for 
the  benefit  of  his  creditors.  It  also  appealed 
that  the  plaintiff  was  being  employed  as  a 
colliery  manager  at  a  weekly  wage  of  4/.,  the 
employment  being  determinable  on  three  months' 
notice,  or  on  payment  of  three  months1  salary  in 
lieu  of  notice,  or  without  notice  in  the  event  of 
wilful  misconduct : — Held,  that  whether  or  not 
the  salary  could  be  attached,  the  plaintiff  had 
no  substantial  means  of  paying  the  costs  of  the 
action  in  the  event  of  the  verdict  being  for  the 
defendant,  and  that  an  order  was  rightly  made 
under  s.  10.  Counsel  v.  Oar  vie  (Ir.  R.  5  C.  L 
74)  considered.  Lea  v.  Parker,  13  Q.  B.  D.  835 ; 
54  L.  J.,  Q.  B.  38  ;  33  W.  R.  101—0.  A. 


Appearanee  entered  by  one  Detondaat- 


Xotion  to  remit  by  another  Defendant.]— A  writ 
was  issued  against  A.  as  sole  defendant  in  an 
action  of  tort,  and  served  upon  him;  and  an 
appearance  was  entered  by  A.,  requiring  a  state- 
ment of  claim.  Subsequently  the  plaintiff 
obtained  leave  to  amend  the  writ  by  adding  B. 
as  a  co-defendant  in  the  action,  and  the  writ,  so 
amended,  was  served  upon  B.  B.,  within  the 
prescribed  period  (eight  days),  moved  that  in 
default  of  the  plaintiff  giving  security  for  costs, 
the  action  should  be  remitted  to  the  Civil  Bill 
Court  in  which  the  defendants  were  described 
in  the  writ  as  residing,  grounding  the  motion  on 
the  usual  affidavit,  that  the  plaintiff  had  no 
visible  means  : — Held,  that  in  default  of  the 
plaintiff  giving  security  for  costs  the  action  should 
be  remitted  ;  but  that  such  security  should  be 
given  for  the  costs  of  the  defendant  B.  only. 
Fagan  v.  Monks,  20  L.  R.,  Ir.  1 — C.  A. 


b.  Practice  after  Action  Remitted. 

Delay  in  Lodging  Writ  and  Order.]— Where 
an  action  is  remitted  to  the  county  court  under 
30  &  31  Vict.  c.  142,  s.  10,  and  the  plaintiff  does 
not  lodge  the  original  writ  and  the  order  with 
the  registrar  of  the  county  court,  the  proper 
course  for  the  defendant  to  pursue  is  to  apply  by 
summons  at  chambers  to  compel  the  plaintiff 
either  to  proceed  with  the  action  or  abandon  it 
The  county  court  judge  cannot  refuse  to  hear  the 
action  on  the  ground  that  there  has  been  delay 
in  lodging  the  writ  and  order  with  the  registrar. 
Driscol  v.  King,  49  L.  T.  599  :  S.  C,  nom.  Rq. 
v.  Holroyd,  32  W.  R.  370— D. 


Transfer   from   Chancery    Division.]  — 


Where  an  order  was  made  transferring  an  action 
commenced  in  the  Chancery  Division  to  a  county 
court,  and  the  plaintiff  failed  to  enter  the  action 
in  the  county  court : — Held,  on  motion  by  the 
defendant,  that  the  superior  court  had  jurisdic- 
tion to  vary  the  order  of  transfer  by  directing 


558 


COUNTY    COURT. 


554 


the  plaintiff  within  one  week  from  service  of  this 
order  to  lodge  the  necessary  documents  with  the 
registrar  of  the  county  court  to  complete  the 
transfer,  the  costs  to  be  in  the  discretion  of  the 
county  court  David  v.  Howe,  27  Ch.  D.  533  ; 
53  L.  J.,  Ch.  1053  ;  50  L.  T.  753  ;  32  W.  R.  844 
-Y..C.  R 

Power  of  County  Court  Judge  to  add  Defen- 
dant |—  Where  an  action  has  been  remitted  for 
trial  in  the  county  court  under  s.  10  of  the 
Comity  Courts  Act.  1867,  the  county  court 
judge  has  no  power  to  add  a  defendant  with- 
out his  consent.  MulleneUen  v.  Coulson,  20 
a  a  D.  667  ;  57  L.  J.,  Q.  B.  334  ;  36  W.  R.  524 
-D. 

Costs— Power  of  High  Court  over.] — An  action 
in  which  the  defendant  paid  money  into  court 
vis  ordered  to  be  tried  in  a  county  court.  At 
the  trial  the  judge  found  that  the  plaintiff  was 
entitled  to  recover  for  certain  work  done,  and 
determined  the  rate  at  which  the  work  was  to 
be  paid  for,  leaving  it  to  the  registrar  to  ascer- 
tain the  amount  due  by  calculation.  The  result 
was  that  the  plaintiff  recovered  2s.  3<J.  beyond 
the  ram  paid  into  court.  The  county  court  judge 
expressed  no  opinion  on  the  question  of  costs. 
The  defendant  applied  to  a  divisional  court  for 
an  order  that  the  plaintiff  should  pay  to  the 
defendant  his  costs  of  the  action,  or  that  each 
party  should  pay  his  own  costs.  The  court  held, 
that  they  had  no  jurisdiction  to  make  an  order, 
and  refused  the  application.  On  appeal,  held, 
that  the  words  u  subject  to  the  provisions  of  the 
principal  act  and  these  rules  "  in  Ord.  LX V.  r.  4, 
incorporated  the  provision  in  r.  1,  that  costs 
shall  be  in  the  discreticn  of  the  court  or  judge, 
and  therefore  the  court  had  jurisdiction.  Order 
made,  that  the  plaintiff  should  recover  costs  only 
ip  to  the  time  of  payment  into  court,  and  each 
party  should  pay  his  own  costs  of  the  trial. 
.sWay  or  Emery  v.  Sandes,  14  Q.  B.  D.  6  j  54 
L  J,  Q.  B.  82  ;  51  L.  T.  641 ;  33  W.  R.  187— 
C.A. 

appeal— Hew  Trial— 19  *  SO  Viot.  e.  108,  s. 
tip-Rales  3  and  4  of  Ord.  XXXIX.  of  the 
Roles  of  the  Supreme  Court,  1883,  have  no  appli- 
cation to  motions  for  new  trial  in  actions  re- 
mitted to  the  county  court  for  trial  under  19  & 
»  Vict  c.  108,  s.  26.  Pritchard  v.  Pritchard, 
U  Q.  B.  D.  55  ;  54  L.  J.,  Q.  B.  30 ;  51  L.  T. 
*»;33W.  B.198— D. 

In  such  actions  a  motion  for  new  trial  must 
still  be  made  within  the  time  limited  by  the 
oid  practice.    lb. 

Order  UX.,  r.  9,  does  not  apply  to  cases 
in  which  the  issues  in  an  action  are  remitted  to 
a  county  court  for  trial  under  19  &  20  Vict.  c. 
108,  s.  26.  In  such  cases,  therefore,  an  applica- 
tion for  a  new  trial  must  still  be  by  motion  for  a 
role  nisi  under  the  old  practice.  Hughes  v. 
*Wy,19  Q.  B.  D.  522  ;  56  L.  J.,Q.  B.643  ;  35 
w.  R.  807 ;  51J.  P.  582— D. 

Where  an  action  has  been  remitted  for  trial  to 
a  county  court  under  19  &  20  Vict  c.  108,  s.  26, 
and  has  been  tried  by  a  judge  without  a  jury, 
the  application  for  a  new  trial  must  continue  to 
be  made  to  a  divisional  court.  Swansea  Co- 
•Ptrrtite  Building  Society  v.  Dairies,  12  Q.  B.  D. 
*l;  53  L.  J.,  Q.  B.  64  ;  49  L.  T.  603  ;  32  W.  R. 
lfc-D. 


4.  Transfer  from  County  Court. 

Employers'  Liability  Aot  —  Removal  into 
Superior  Court.] — S.  39  of  the  County  Courts 
Act,  1856,  entitles  the  defendant  "  in  any  action 
of  tort "  where  the  claim  exceeds  5  J.  to  a  stay  of 
proceedings  uDon  certain  conditions  as  to  giving 
security  for  the  amount  claimed,  and  the  costs  of 
trial  in  one  of  the  superior  courts  of  common 
law : — Held,  that  this  section  was  intended  to 
apply  only  to  actions  which  could  be  brought 
either  in  one  of  the  superior  courts  or  in  a  county 
court,  and  therefore  did  not  apply  to  an  action 
under  the  Employers*  Liability  Act,  1880,  which 
by  s.  6  of  that  act  must  be  brought  in  a  county 
court.  Reg.  v.  City  of  London  Court  Judge  or 
Claxton  v.  Lucai,  14  Q.  B.  D.  905 ;  54  L.  J.,  Q. 
B.  330 ;  52  L.  T.  537 ;  33  W.  R.  700— C.  A. 
Affirming  49  J.  P.  407— D. 

An  action  to  recover  damages  for  personal 
injuries  occasioned  through  the  negligence  of 
a  fellow  servant  of  the  plaintiff's  having 
been  brought  in  the  county  court,  under  the 
Employers*  Liability  Act,  1880,  the  plaintiff 
obtained  a  conditional  order  to  have  it  removed 
into  a  superior  court,  the  plaintiff's  wages  were 
60Z.  a-year,  and  he  claimed  1807.  damages.  There 
was  medical  evidence  showing  that  he  had  sus- 
tained serious  and  permanent  injury,  and  it  was 
admitted  that  more  than  50/.  might  reasonably 
be  awarded;  but  there  were  not  any  other 
special  circumstances  shown  in  support  of  the 
application : — Held,  that  the  county  court  would 
have  power  to  award  damages  exceeding  50Z., 
and  for  any  amount  within  the  statutory  limit 
of  three  years'  wages,  and  per  Dowse,  B.  (diss. 
Andrews,  J.),  that  no  sufficient  grounds  were 
shown  for  the  removal  of  the  action  from  the 
county  court.  JlPIhoy  v.  Waterford  Steamship 
Company,  16  L.  B.,  Ir.  291— Ex.  D. 

In  an  action  commenced  in  the  civil  bill  court 
to  recover  damages  for  the  death  of  ihe  plaintiff 's 
late  husband,  who  had  died  from  injuries  sus- 
tained while  employed  as  second  mate  and  pilot 
on  board  a  steamer  of  the  defendants,  and  also 
in  superintendence  of  the  loading  and  discharging 
of  cargo,  the  plaintiff  applied  to  move  the  action 
into  the  superior  court. : — Held,  that  it  did  not 
sufficiently  appear  from  the  plaintiff's  affidavit, 
which  described  the  employment  of  the  deceased 
as  above  stated,  that  the  deceased  was  a  workman 
within  the  meaning  of  the  Employers'  Liability 
Act,  1880,  and  that  the  application  should  there- 
fore be  refused.  It  lies  upon  the  party  making 
such  application  to  show  distinctly  that  the 
case  comes  within  the  statute.  Hanrahan  v. 
Limerick  Steamship  Company,  18  L.  R.,  Ir.  135 
—Ex.  D. 

5.  Practice. 

a.  In  General. 

Payment  into  Court  with  Denial  of  Liability.] 
— The  defendant  in  an  action  in  a  county  court 
paid  money  into  court,  stating  at  the  same  time 
id  a  memorandum  addressed  to  the  registrar  that 
the  payment  was  made  "without  prejudice  to 
the  defendant's  defence  to  this  action  and  while 
denying  tie  plaintiff's  cause  of  action  '* : — Held, 
that  the  payment  into  court  was  not  an  admis- 
sion of  liability,  and  that  the  defendant  was 
entitled  to  dispute  his  liability  at  the  hearing. 
Harper  v.  Davis,  19  Q.  B.  D.  170 ;  56  L.  J., 
Q.  B.  444  ;  36  W.  R.  77— D. 


555 


COUNTY    COURT. 


556 


The  County  Court  Rules,  1886,  embody  the 
results  of  the  decision  in  Berdan  v.  Greenwood 
(3  Ex.  D.  251),  and  apart  from  the  notioe  the 
defendant  was  entitled  to  pay  money  into  court 
and  afterwards  to  dispute  his  liability  at  the 
hearing,    id.— Per  Wills,  J. 

Administration  Order— Bight  to.]— A  person 
interested  in  the  estate  of  a  deceased  person  is 
not  entitled  as  of  right  to  an  administration 
order  in  a  county  court,  the  combined  effect  of 
Ord.  VI.  r.  6,  and  Ord.  XXII.  r.  11,  of  the 
County  Court  Rules,  1886,  being  to  place  the 
granting  of  such  order  within  the  discretion  of 
the  county  court  judge.  Pearson  v.  Pearson, 
56  L.  T.  445— D. 

Solicitor— Eight  of  Audience — Examination 
of  Debtor.]— The  Bankruptcy  Act,  1883,  s.  17, 
sub-s.  4,  enacts  with  reference  to  the  public 
examination  of  the  debtor  under  that  act, "  that 
any  creditor  who  has  tendered  a  proof,  or  his 
representative  authorized  in  writing,  may  ques- 
tion the  debtor  concerning  his  affairs,  and  the 
causes  of  his  failure  "  : — Held,  that  a  solicitor 
who  appears  at  a  bankruptcy  court  for  a  creditor 
who  has  tendered  a  proof,  iB  the  creditor's  repre- 
sentative within  the  meaning  of  that  sub-section, 
and  is  therefore  not  entitled  so  to  question  the 
debtor  without  being  authorized  in  writing,  and 
producing  his  authority  if  required  by  the  court 
to  do  so.  Reg,  v.  Greenwich  County  Court 
(Registrar),  15  Q.  B.  D.  54 ;  54  L.  J.,  Q.  B. 
392 ;  53  L.  T.  902  ;  33  W.  R.  671 ;  2  M.  B.  R. 
176— C.  A. 

Wotiee  of  Demand  of  Jury— Fifteen  dear 
Days  before  "  Return-day."]  —  Under  Ord. 
XXXIX.  (o),  r.  4,  of  the  Countv  Court  Rules, 
1875,  notice  of  demand  for  a  jury  in  actions 
brought  under  the  Employers'  Liability  Act, 
1880,  must  be  given  to  the  registrar  of  the  court 
"  fifteen  clear  days  at  least  before  the  return- 
day  "  : — Held,  that  "  return-day  "  in  the  above 
rule  meant  the  day  originally  fixed  for  the 
hearing  as  distinguished  from  the  day  of  actual 
hearing.  Reg.  v.  Leeds  Countv  Court  (Re- 
gistrar),  16  Q.  B.  D.  691  ;  56  L.  J.,  Q.  B.  366  ; 
54  L.  T.  873  ;  34  W.  B.  487— D. 

Few  Trial— Jurisdiction  to  hear  Case  when 
Hotioe  insufficient.]— Ord.  XXVIII.  r.  1,  of  the 
County  Court  Rules,  1875,  provides  that  a  person 
applying  for  a  new  trial  in  a  county  court  shall 
give  the  opposite  party  seven  clear  days'  notice 
in  writing  of  his  intention  so  to  apply.   A  notice 
was  given  by  the  defendant  to  the  plaintiffs  by 
letter  on  the  8th  November,  stating   that   he 
would  apply  on  the  12th  November  for  anew  trial. 
The   plaintiffs  refused    to   accept   this  notice 
as    being   too   short,    and  did  not   attend  at 
the  hearing  on  the  12th.    The  fact  that  the 
plaintiffs  objected  to  the  notice  was  brought 
before  the  judge,  who,  however,  made  an  order 
for  a  new  trial.  The  plaintiffs  applied  for  a  pro- 
hibition to  restrain  the  judge  from  hearing  the 
case  on  the  new  trial : — Held,  that  a  prohibition 
ought  not  to  be  granted,  as  the  proper  proceeding 
to  have  been  adopted  would  have  been  to  have 
made  an  application  to  the  judge  to  set  aside 
the  order  for  a  new  trial  as  irregular.    Jones 
(Trustees)  v.  Gittins,  61  L.  T.  599— D. 

Refusal — Leave  to  nuke  Fresh  Applica- 
tion—-Jurisdiction,] — A  county  court  judge  who, 


on  the  verdict  of  a  jury  being  given  at  the  trial 
of  an  action,  hears  an  application  for  a  new  trial 
and  refuses  to  grant  it  on  the  grounds  then 
assigned,  but  gives  leave  to  the  applicant  to 
make  another  application  at  a  later  date  on 
fresh  materials,  is  not  functus  officio  with 
respect  to  the  action  so  as  to  have  no  jurisdiction 
to  entertain  the  second  application  and  grant  a 
new  trial  if  he  thinks  fit.  Great  Northern 
Railway  v.  Mossop  (17  C.  B.  190),  distinguished 
Moxon  v.  London  Tramways  Company,  or  Beg. 
v.  Greenwich  County  Court  Judge,  60  L.  T.  246 ; 
37  W.  R.  132— C.  A.  Affirming  57  L.  J.,  Q.  B. 
446— D. 


Misconduct   of   Jury— Evidence    of— 


Prohibition.]— Prohibition  will  not  lie  where  a 
county  court  judge  has  granted  a  new  trial  on 
the  ground  of  the  misconduct  of  the  jury,althoogfa 
there  was  no  evidence  to  warrant  him  in  so  doing 
if  the  subject  of  the  action  and  the  application 
for  a  new  trial  were  within  his  competence  and 
jurisdiction.    lb. 

Judgment  Debt— Interest] — A  county  court 
judgment  debt  does  not  carry  interest  under  1 
&  2  Vict.  c.  110,  8.  17.  Reg.  v.  Essex  County 
Court  Judge,  18  Q.  B.  D.  704  ;  56  L.  J.,  Q.  B. 
315  ;  67  L.  T.  643  ;  35  W.  R.  511 ;  51  J.  P.  549 
— C.  A. 

Judgment— Effect  of,  on  Trial  in  High  Court 
for  same  Cause  of  Action,]— See  Estoppel. 


b.    Coats. 


Equitable  Jurisdiction— Diseretion— Adndaii- 
tration  Action.]  —  A  county  court  judge  is 
not  bound  by  the  rule  in  equity  which  prevailed 
before  the  Judicature  Acts, — that  the  plaintiff 
in  an  administration  suit,  properly  brought,  was 
entitled  to  his  costs  out  of  the  estate.  The  judge 
has,  by  virtue  of  9  &  10  Vict,  c  95,  s.  88,  and 
28  &  29  Vict.  c.  99,  s.  21,  an  absolute  discretion 
over  such  costs,  and  may  therefore  order  the 
plaintiff  to  pay  the  costs  of  the  action,  and  no 
appeal  will  lie  against  his  order.  Cooper  v. 
Busbridge  (16  L.  T.  5)  discussed.  PUmk  t. 
Craker,  16  Q.  B.  D.  40  ;  55  L.  J.,  Q.  B.  116  ;  » 
L.  T.  404— D. 

Certificate  on  Higher  Scale — Grounds  fcr 
giving.] — In  awarding  costs  on  the  higher 
scale  to  a  successful  party  under  s.  5  of  the 
County  Courts  Salaries  Act,  1882,  it  is  not 
sufficient  for  the  judge  to  certify  that  the 
action  involved  a  question  of  character:— 
Quaere,  whether  the  court  will  inquire  into  the 
sufficiency  of  the  grounds  of  a  certificate  » 
framed.  Reg.  v.  City  of  London  Court  Judge, 
18  Q.  B.  D.  105  ;  56  L.  J.,  Q.  B.  79 ;  55  L.  T. 
736  ;  35  W.  R.  123— D. 

A  certificate  under  s.  5  should  follow  the 
language  of  the  section.    lb. — Per  Stephen,  J. 

A  county  court  judge  has  no  power  to  order  costs 
to  be  taxed  on  the  100/.  scale  when  there  is  ales 
amount  claimed  in  the  action,  unless  he  certify 
that  the  action  involved  some  novel  or  difficult 
point  of  law,  or  that  the  question  litigated  wis 
of  importance  to  some  class  or  body  of  persons 
or  of  general  or  public  interest  The  reservation 
of  the  powers,  rights,  and  privileges  of  the  judge 
of  the  City  of  London  Court  in  s.  36  of  the 
County  Court  Act,  1867,  does  not  confer  upon 


557 


COUNTY    COURT. 


558 


him  any  greater  power  over  costs  than  that 
given  to  judges  of  county  courts.  Howard  v. 
£»c»,52L.T.868— D. 

Tmtion--8sal6  of  Costo  in  Actions  under  £10.] 
—The  Appendix  to  the  County  Court  Rules, 
1886,  contains  a  scale  of  costs  as  between  solicitor 
sod  client  where  the  amount  recovered  exceeds 
22.  and  does  not  exceed  102.,  and  provides  that 
oo  other  costs  are  to  be  allowed  where  the  amount 
claimed  does  not  exceed  10J.,  unless  the  judge 
certifies  under  s.  6  of  the  County  Courts  (Costs 
and  Salaries)  Act,  1882.     The  plaintiff  having 
commenced  an  action  in  a  county  court  for  10Z., 
consulted  solicitors  with  reference  to  it,  who 
after  taking  various  steps  to  investigate  the  claim 
recommended  a  settlement,  which  the  plaintiff 
refused  to  accept.    The  solicitors  then  returned 
the  papers  to  toe  plaintiff,  who  proceeded  with 
the  action  in  person  : — Held,  that  upon  the  taxa- 
tion of  the  solicitors'  bill  for  the  services  rendered 
bj  them,  it  was  a  question   for  the  master 
whether  the  solicitors  had,  in  fact,  acted  in  the 
conduct  of  the  action,  and  that  if  they  appeared 
to  hare  so  acted,  tbey  could  recover  no  other 
costs  than   those   specified   in    the   appendix. 
Emanuel  and  Company,  In  re  (9  Q.  B.  D.  408) 
considered    Bod,  Longstaffe  and  Company,  In 
re,  Lanond,  Ex  parte,  21  Q.  B.  D.  242  ;  57  L.  J., 
Q.  B.  503 ;  59  L.  T.  467— D. 

— Costs  of  Returning  Officer  at  Elections.]— 
Set  Election  Law. 

6.    Appeal. 

a.   In   what   Cases. 

Application  to  Superior  Court  for  Kule — 
frtoty."]— Query,  whether  a  solicitor,  when  his 
nght  of  audience  has  been  denied  to  him,  is 
ka  party/1  within  the  meaning  of  s.  43  of  the 
County  Courts  Act,  1856  (19  &  20  Vict.  c.  108), 
and  is  therefore  entitled  to  apply  to  the  superior 
court  for  a  rule  to  compel  the  county  court  judge 
to  give  him  audience.  Reg.  v.  Greenwich  County 
G>»t  (Registrar),  ante,  coL  555. 

It  Bemitted  Actions.  ] — See  cases,  ante,  col. 
553. 

Iatsrlocutory  Proceeding  —  Hew  Trial.]— 
A  motion  for  a  new  trial  before  a  county  court 
lodge  is  an  interlocutory  proceeding  from  which 
oo  appeal  lies  to  the  Divisional  Court.  Jacobs 
▼.  Dtwkes,  56  L.  J.,  Q.  B.  446  ;  56  L.  T.  919 ;  35  W. 
R.  649— D.  See  also  Mc Hardy  v.  Liptrott,  post, 
eoL559. 

Ho  appeal  lies  from  the  decision  of  a  county 
court  judge  refusing  to  grant  a  new  trial  when 
applied  for  on  the  ground  solely  of  the  verdict 
being  against  the  weight  of  evidence.  Wilton  v. 
Leeds  Forge  Valley  Company,  32  W.  B.  461— D. 

actable  Jurisdiction.] — An  appeal  lies  from 
an  order  made  in  an  interlocutory  proceeding, 
hv  s  judge  of  a  county  court,  by  virtue  of  the 
equitable  jurisdiction  conferred,  by  the  County 
Cowts  Act,  1865.  Jonas  v.  Long,  20  Q.  B.  D. 
5«;  57  L.  J„  Q.  B.  298  ;  58  L.  T.  787  ;  36  W. 
&315;  52  J.  P.  468— C.  A. 

Uterpleeder— Amount  not  exeeeding  £20."]— 
An  appeal  does  not  lie,  even  by  leave  of  the  judge, 


from  the  decision  of  the  county  court  in  proceed- 
ings in  interpleader,  where  neither  the  money 
claimed,  nor  the  value  of  the  goods  or  chattels 
claimed,  or  of  the  proceeds  thereof,  exceeds  202. 
Colli*  v.  Letois,  20  Q.  B.  D.  202 ;  57  L.  J.,  Q.  B. 
167  ;  57  L.  T.  716  ;  36  W.  R.  472— D. 

Less  Amount  than  £80  deposited.  ]— Where 

in  an  interpleader  proceeding  in  a  county  court 
the  claimant  deposits  the  amount  of  the  value  of 
the  goods  claimed  as  fixed  by  appraisement  under 
s.  72  of  the  County  Courts  Act,  1856,  he  cannot, 
if  the  amount  so  deposited  be  less  than  20Z.,  claim 
to  appeal  under  s.  68  of  the  act  on  the  ground 
that  the  value  of  the  goods  was  over  20Z.,  and 
that  a  less  amount  was  deposited  because  it  was 
sufficient  to  satisfy  the  execution  creditor's 
judgment.     White  v.  Milne,  58  L.  T.  225— D. 


-Costs    of    Interpleader.] — In  an    inter- 


pleader proceeding  on  the  application  of  the 
sheriff,  the  claimant,  if  successful,  is  entitled  to 
recover  as  costs  from  the  execution  creditor  the 
sheriff's  charges  subsequent  to  the  interpleader 
order.  The  incidence  of  such  charges  is  a  matter 
of  law  and  a  proper  subject  of  appeal  from  a 
county  court  to  the  High  Court  under  the  County 
Courts  Act,  1850  (13  &  14  Vict.  c.  61),  s.  14. 
Goodman  v.  Blake,  19  Q.  B.  D.  77  ;  57  L.  T.  494 
— D. 

Deoision  under  Agricultural  Holdings  Aot.] — 
An  appeal  lies  from  a  decision  of  a  county  court 
judge  in  the  matter  of  a  dispute  heard  and 
determined  by  him  under  8. 46  of  the  Agricultural 
Holdings  Act,  1883,  under  the  general  powers  of 
appeal  contained  in  s.  13  of  the  County  Courts 
Act,  1867.  Hanmer  v.  Xing,  57  L.  T.  367  ;  51 
J.  P.  804— D. 

Friendly  Society — Rules.  ] — In  the  case  of  an 
unregistered  society  under  s.  30,  sub-s.  10,  of  the 
Act  of  1875  (explained  by  42  Vict.  c.  9),  the 
right  of  appeal  to  a  county  court  or  court  of 
summary  jurisdiction  overrides  any  rules  of  the 
society  to  the  contrary.  Xnowles  v.  Booth,  32 
W.  R.  432— D. 

"  Application  to  County  Court."] — By  s. 

22  of  the  Friendly  Societies  Act,  1876,  disputes 
between  members  of  a  friendly  society  and  the 
society  or  its  officers  are  to  be  decided  in  manner 
directed  by  the  rules  of  the  society,  and  by  sub-s. 
(d),  "  where  the  rules  contain  no  direction  as  to 
disputes,  or  where  no  decision  is  made  on  a  dis- 
pute within  forty  days  after  application  to  the 
society  for  a  reference  under  its  rules,  the 
member  or  person  aggrieved  may  apply  either  to 
the  county  court,  or  to  a  court  of  summary 
jurisdiction,  which  may  hear  and  determine  the 
matter  in  dispute  "  : — Held,  that  the  application 
to  the  county  court  contemplated  by  sub-s.  (d) 
must  be  taken  to  be  an  application  in  the  form 
of  an  action  commenced  in  the  county  court,  and 
not  a  reference  to  the  county  court  judge  sitting 
as  an  arbitrator,  and  that  there  was  an  appeal 
from  the  decision  upon  such  application  to  the 
High  Court.  Wilkinson  v.  Jogger,  20  Q.  B.  D. 
423 ;  57  L.  J.,  Q.  B.  254  ;  68  L.  T.  487  ;  36  W.  R. 
169  ;  52  J.  P.  533— D. 

" Determination  of  the  Court" — Judgment 
pro  forma.] — A  divisional  court  has  no  juris- 
diction to  hear  a  motion  to  set  aside  a  judgment 


1 


559 


COUNTY  COURT— COURT. 


560 


entered  by  a  county  court  judge  pro  forma  in 
order  to  expedite  an  appeal,  such  entry  of  judg- 
ment not  being  a  determination  or  direction  of  a 
county  court  within  the  meaning  of  the  14th 
section  of  13  &  14  Vict,  c  61.  Chapman  v. 
Wither*,  58  L.  T.  24— D. 

Committal  tor  Contempt  ] — The  superior  court 
will  decline  to  exercise  any  appellate  jurisdiction 
over  the  county  court  in  matters  of  fine  or  com- 
mittal for  contempt,  except  where  there  is  no 
reasonable  evidence  of  any  contempt  having  been 
committed,  and  the  liberty  of  the  subject  requires 
protection.    Reg.  t.  Jordan,  36  W.  B.  589—-D. 

To  Court  of  Appeal  in  Admiralty  Matter.]— 
See  Shipping. 


b.  Mode  of  and  Time  for. 

Appeal  by  Motion— Appeal  by  Special  Case 
abolished.] — All  appeals  from  county  courts  to 
the  Queen  s  Bench  Division  of  the  High  Court 
must,  since  the  Crown  Office  Rules,  1886  (Ord. 
LIX.  rr.  10  et  seq.),  be  by  notice  of  motion, 
notwithstanding  the  13  &  14  Vict.  c.  61,  ss.  14, 
15,  which  gave  an  appeal  by  special  case.  Reg. 
v.  Kettle,  17  Q.  B.  D.  761 ;  55  L.  J.,  Q.  B.  470 ; 
54  L.  T.  875  ;  34  W.  R.  776— D. 

Before  Crown  Office  Rules,  1886.]— An 


appeal  from  tbe  decision  of  a  county  court  judge 
should  be  by  motion  ex  parte  in  the  first  instance, 
under  the  County  Courts  Act,  1875,  s.  6,  and  not 
by  giving  notice  of  motion  under  Ord.  XXXIX. 
r.  3.  Shapcott  v.  Chappell  (12  Q.  B.  D.  58) 
questioned.  Mathews  v.  Ovey,  13  Q.  B.  D.  403  ; 
53  L.  J.,  Q.  B.  439  ;  50  L.  T.  776— C.  A. 

The  provisions  of  Ord.  XXXIX.  r.  6,  apply  to 
motions  for  new  trials  in  county  court  cases  made 
on  appeal  under  the  provisions  of  the  County 
Court  Act,  1875  (38  k  39  Vict.  c.  50),  s.  6.  A 
new  trial  will  not  be  granted  in  such  a  case,  on 
the  ground  of  the  improper  rejection  of  evidence, 
unless  some  substantial  wrong  or  miscarriage  has 
been  occasioned.  Shapcott  v.  Chappell,  12  Q.  B.  D. 
58  ;  63  L.  J.,  Q.  B.  77  ;  32  W.  R.  183— D. 

Time  for — From  Judgment  not  from  Refusal 
of  Few  Trial.] — In  an  action  tried  in  the  county 
court  an  appeal  will  not  lie  against  the  decision 
of  the  county  court  judge  on  an  application  for 
a  new  trial ;  so  that  the  time  within  which  the 
unsuccessful  party  in  the  county  court  may  appeal 
to  the  Queen's  Bench  Division  begins  to  run  from 
the  date  of  the  judgment  at  the  trial,  and  not 
from  the  date  of  the  judge's  decision  on  the 
application  for  a  new  trial.  Mc Hardy  v. 
Mptrott,  19  Q.  B.  D.  151 ;  56  L.  J.,  Q.  B.  459 

Where  an  application  for  a  new  trial  was  made 
to  a  county  court  judge  within  two  days  of  the 
original  trial,  and  he  took  a  fortnight  to  con- 
sider and  then  refused  to  grant  a  new  trial,  and 
a  rule  nisi  for  a  new  trial  was  obtained  from  the 
High  Court  within  two  days  of  such  refusal : — 
Held,  that  such  rule  was  obtained  out  of  time, 
as  the  eight  days  for  appealing  began  to  run 
from  the  day  of  the  original  trial,  and  not  from 
the  refusal  of  the  county  court  judge.  Morris  y. 
Lowe,  34  W.  R.  46— D. 

From  Verdict  not  from  Judgment.] — 


complained  of,  the  twenty-one  days  within  which 
an  appeal  may  be  entered  is  to  be  calculated 
from  the  time  when  the  verdict  was  given 
although  the  judgment  upon  it  was  not  given 
until  a  subsequent  day.  Rawnsley  v.  Lancashire 
and  Yorkshire  Railway,  35  W.  R.  771— D. 


o.  Practice. 

Socurity  for  Costs.]— The  plaintiff,  an  infant, 
brought  an  action  in  the  county  court,  and  sued 
by  his  next  friend.  Judgment  was  given  for  the 
defendants  with  costs,  but  they  were  unable  to 
obtain  payment  owing  to  the  next  friend's  in- 
solvency. The  plaintiff  appealed  from  the  judg- 
ment. On  an  application  by  the  defendants  for 
an  order  that  the  next  friend  should  give  security 
for  the  costs  of  the  appeal : — Held,  that  by  Rules 
of  Supreme  Court,  1883,  Ord.  LIX.,  r.  17,  which 
applies  the  provisions  of  Ord.  LVIII.,  r.  15,  to 
appeals  from  county  courts,  there  was  power  to 
make  an  order,  and  as  the  next  friend  was  in- 
solvent, and  was  prosecuting  the  appeal  for  the 
benefit  of  another  person,  she  must  give  security. 
Swain  v.  Follows,  18  Q.  B.  D.  585  ;  56  L.  J.,Q.B. 
310  ;  66  L.  T.  335  ;  35  W.  R.  408— D. 

Leave  of  Judge— Discretion  as  to  Terms.]— 
A  county  court  judge  having  given  a  defen- 
dant leave  to  appeal,  but  subject  to  a  condition 
that  he  should  pay  the  plaintiff's  costs  of  the 
appeal  in  any  event,  and  should  also,  in  case  the 
appeal  was  unsuccessful,  pay  the  costs  of  the 
trial  upon  the  higher  scale, — the  divisional  court 
held  that  it  had  no  power  to  interfere  with  the 
discretion  vested  in  him  by  30  &  31  Vict  c.  142, 
s.  13.     Qoodes  v.  Cluff,  13  Q.  B.  D.  694— D. 

Power  of  High  Court  to  enter  Judgment]— In 
an  appeal  from  a  county  court  in  an  action  for 
damages,  the  court  has  power  to  give  judgment 
for  the  plaintiff  for  the  sum  claimed,  if  satisfied, 
upon  the  whole  of  the  evidence  before  the  county 
court  judge,  that  judgment  ought  to  be  so 
entered,  although  judgment  had  been  given  by 
the  county  court  judge  for  the  defendant  &*9 
v.  Oxford  Co-operative  Society ',  51  L.  T.  94— D. 


When  the  finding  of  a  jury  in  a  county  court  is 


COURT. 

L  Liverpool  Coubt  of  Passage,  561. 
II.  Palatine  Court  of  Lancaster,  561. 

III.  Salford  Hundred  Coubt,  563. 

IV.  Stannaries  Court,  563. 

V.  In  other  Cases. 

1.  Of  Appeal.— See  Appeal. 

2.  Of  Admiralty. — See  8HIPPINO. 

3.  Of  Bankruptcy. — See  Bankruptcy. 

4.  County  Court.— Sec  County  Court. 

5.  Of  Divorce. — See  Husband  and  Wife. 

6.  Of  Probate.— See  Will. 

7.  Mayor's  Court.— See  Mayor's  Court. 


561 


COURT. 


562 


I.  LIVERPOOL   COURT  OF    PASSAGE. 

Pwrsr  to  make  Rules — Rule  ordering  Security 
to  Gosts,]-By  6  &  7  Will.  4,  c.  135,  8.  4,  the 
assessor  of  the  Liverpool  Court  of  Passage  may 
make  rales  and  regulations  concerning  the 
practice  and  costs  of  the  court.  The  assessor 
made  a  rale  that  in  frivolous  and  vexatious 
actions  the  registrar  should  have  power  to  order 
the  plaintiff  to  give  security  for  tne  defendant's 
costs:— Held,  that  the  statute  did  not  give 
power  to  make  such  a  rule,  and  the  rule  was 
mralid.  Beg.  v.  Liverpool  Mayor,  18  Q.  B.  D. 
510 ;  56  L.  J„  Q.  B.  413  ;  56  L.  1  314  ;  35  W.  R. 
475-D. 


in  Interpleader.] — The  rules  of 
the  Court  of  Passage  do  not  give  that  court  the 
jurisdiction  in  interpleader  contained  in  Ord. 
LYII.  r.  8,  of  the  rules  of  the  Supreme  Court, 
1883,  and  even  if  rules  had  been  framed  to 
that  effect  they  could  not  give  such  a  jurisdic- 
tion, as  they  would  be  in  that  respect  ultra 
▼bes.  The  power  to  decide  summarily  without 
consent  questions  in  interpleader  is  not  a  "  rule 
of  law"  within  the  meaning  of  8.  91  of  the 
Judicature  Act,  1873.  Speers  v.  Dagger*,  1 
C.  ft  E.  603— Wills,  J. 

Protection  of  Officers.] — Officers  of  the  court 
are  not  protected  in  the  case  of  process  executed 
under  an  interpleader  order  made  without  juris- 
diction, though  good  on  the  face  of  it,  if  such 
ovder  was  obtained  on  their  own  application. 
The  relief  or  remedy,  the  power  to  grant  which 
is  conferred  on  superior  courts  by  s.  139  of  the 
Judicature  Act,  1873,  only  refers  to  the  relief 
and  remedies  to  be  administered  in  the  action, 
fad  as  the  result  of  the  action,  and  not  to  an 
incidental  and  extraneous  proceeding  arising 
out  of  the  levy  of  execution,  such  as  inter- 
pleader,   lb. 


IL  PALATINE   COURT  OF  LANCASTER. 

AsjrfnistratLon — Intestacy— Grant  De  bonis 
ass  to  sTominee  of  Duchy.] — Where  an  intestate 
had  died  leaving  no  known  relatives,  and  his 
estate  had  been  partly  administered  by  his 
widow,  who  died  leaving  a  will,  the  court  made 
t  grant  de  bonis  non  to  the  nominee  of  the 
Duchy  of  Lancaster,  who  was  the  residuary 
legatee  of  the  widow.  Avard,  In  goods  of,  11 
P.  D.  75 ;  56  L.  T.  673— Hannen,  P. 

Costs— Patent  Action— Power  over.]— At  the 
trial  of  an  action  in  the  Palatine  Court  to  re- 
strain the  infringement  of  a  patent,  the  Vice- 
chancellor  held  that  the  patent  was  invalid  in 
consequence  of  a  claim  being  made  which  was 
had,  and  dismissed  the  action  with  costs.  The 
defendant  had  delivered  particulars  of  objec- 
tions, and  the  Vice-chancellor  stated  that  he 
wsg  of  opinion  that  the  defendants  should  have 
the  costs  of  their  witnesses  who  attended  to 
npport  the  particulars  of  objections,  though 
they  had  not  been  called.  On  taxation,  the 
registrar  disallowed  these  costs,  but  the  Vice- 
Chancellor  overruled  his  objection  : — Held,  that 
the  discretion  of  the  Court  of  Chancery  and  the 
Watine  Court  with  reference  to  costs  was  not 
taken  away  by  Lord  Cairns'  Act  and  Sir  John 
Bolt's  Act  in  the  esses  which  those  acts  enabled 


those  courts  to  try,  and  that  these  courts  ought 
not  to  follow  by  analogy  a  rule  which  applied 
to  courts  having  no  discretion  as  to  costs,  and 
therefore  the  Vice-Chancellor  had  power  to  give 
these  costs  of  the  particulars  of  objections  to  the 
defendant  without  a  certificate  under  s.  43  of 
the  Patent  Law  Amendment  Act,  1852.  Parnell 
v.  Mort,  29  Ch.  D.  325  ;  53  L.  T.  186 ;  33  W.  R. 
481— C.  A. 


Refreshers — Copies  of  Correspondence.] — 


The  amount  of  the  refreshers  allowed  to  counsel 
in  cases  in  the  Palatine  Court  is  in  the  discretion 
of  the  taxing-master,  and  he  is  not  bound  by 
Ord.  LXV.  r.  27,  sub-s.  48,  of  the  rules  of  the 
Supreme  Court.  Where  a  case  depended  very 
much  on  the  terms  used  in  correspondence  con- 
ducted in  French  between  the  plaintiffs  inter  se 
and  the  defendants  inter  se,  the  court  refused  to 
overrule  the  decision  of  the  judge  who  heard  the 
case,  affirming  the  decision  of  the  taxing-master, 
allowing  the  costs  of  copies  of  the  correspondence 
in  French  as  well  as  of  the  English  translation 
for  the  use  of  counsel.  Ebrard  v.  Gassier,  55 
L.  T.  741— C.  A. 

Judgment  by  Default— Betting  aside.] — Ac- 
cording to  the  true  construction  of  Ord.  XXXIII. 
r.  21,  of  the  rules  of  the  Palatine  Court  of  Lan- 
caster, a  party  against  whom  judgment  has  been 
given  by  default  must  make  application  to  set  it 
aside  within  six  days  if  the  court  be  then  sitting, 
and,  if  it  be  not  then  sitting,  on  the  next  day 
on  which  the  court  shall  be  sitting  to  hear  such 
motions.  An  application  for  extension  of  time 
by  a  party  who  desires  to  apply  to  set  aside  a 
judgment  made  against  him  by  default,  may  be 
made  at  the  time  when  he  makes  the  application 
to  set  aside  the  judgment,  if  the  action  is  still 
pending.  Bradshaw  v.  Warlovo,  32  Ch.  1).  403 ; 
55  L.  J.,  Ch.  852  ;  54  L.  T.  438  ;  34  W.  R.  557— 
C.  A. 

Serviee  of  Writ  ont  of  Jurisdiction — Leave  to 
Issue.] — Ord.  II.  r.  4,  of  the  Chancery  of  Lan- 
caster Rules,  which  provides  that  "  no  writ  of 
summons  for  service  out  of  the  jurisdiction  .  .  . 
.  .  .  shall  be  issued  without  the  leave  of  the 
court  or  Vice-Chancellor,"  applies  to  all  writs 
for  service  out  of  the  jurisdiction  of  the  Palatine 
Court,  whether  the  person  to  be  served  is  or  is 
not  within  the  jurisdiction  of  the  High  Court. 
Accordingly,  leave  of  the  Vice-Chancellor,  or 
Court,  of  the  County  Palatine  for  issue  of  the 
writ  out  of  the  jurisdiction  must  be  obtained 
before  making  application  to  the  Court  of  Appeal 
under  17  &  18  Vict.  c.  82,  s.  8,  for  leave  to  serve 
the  writ  upon  a  person  out  of  the  jurisdiction  of 
the  Palatine  Court,  but  within  the  jurisdiction 
of  the  High  Court.  Walker  v.  Dodds,  37  Ch.  D. 
188  ;  57  L.  J.,  Ch.  206  ;  58  L.  T.  291 ;  36  W.  R. 
133— C.  A. 

Fund  paid  in  under  Trustee  Relief  Act — 
Transfer  to  Chancery  Division.] — A  fund  had 
been  paid  by  trustees  into  the  Court  of  Chan- 
cery of  the  County  Palatine  of  Lancaster 
under  the  Trustee  Relief  Act.  A  person  claim- 
ing to  be  entitled  to  the  fund,  and  to  whom 
notice  of  the  payment  in  had  been  given,  resided 
out  of  the  jurisdiction  of  that  court,  and  applied 
to  the  Court  of  Appeal  under  s.  8  of  17  &  18 
Vict.  c.  82,  for  a  transfer  of  the  matter  to  the 
Chancery  Division  of  the  High  Court,  and  a 


568 


COVENANT— CREMATION. 


564 


transfer  of  the  fund  to  the  Paymaster-General. 
No  step  had  been  taken  by  the  applicant  in  the 
Palatine  Court :— Held,  that  the  applicant  was 
not  a  "party  proceeding"  in  the  matter  within 
the  meaning  of  the  section,  and  that  the  court 
had  no  jurisdiction  to  order  the  fund  to  be  trans- 
ferred.   Heywood',  In  re,  58  L.  T.  292— C.  A. 

IIL  SALFORD  HUNDRED  COURT. 

Juri*di«tion— Omitting  to  plead  to.]— 8.  7  of 
the  Salford  Hundred  Court  of  Record  Act,  1868, 
enacts  that  "  no  defendant  shall  be  permitted  to 
object  to  the  jurisdiction  of  the  court  otherwise 
than  by  special  plea,  and,  if  the  want  of  juris- 
diction be  not  so  pleaded,  the  court  shall  have 
jurisdiction  for  all  purposes  "  :— Held,  that  the 
defendant,  against  whom  judgment  had  been 
recovered  in  the  Salford  Hundred  Court,  he  not 
having  pleaded  to  the  jurisdiction,  could  not 
have  a  writ  of  prohibition  on  the  ground  of  want 
of  jurisdiction,  inasmuch  as  the  above-mentioned 
section,  under  the  circumstances,  conferred  juris- 
diction on  the  Salford  Hundred  Court  Oram 
v.  Brearey  (2  Ex.  D.  346),  overruled.  Chad- 
wick  v.  Ball,  14  Q.  B.  D.  856 ;  54  L.  J.,  Q.  B. 
396  ;  52  L.  T.  949— C.  A. 

IV.  STANNARIES  COURT. 

Appeal  from  Order  of  Vice- Warden— Deposit  by 
Appellant  as  Security.]— Notwithstanding  that 
the  appellate  jurisdiction  of  the  Lord  Warden  of 
the  Stannaries  has,  by  the  Judicature  Act,  1873, 
been  transferred  to  the  Court  of  Appeal,  the 
requirements  of  the  Stannaries  Act,  1869,  s.  32, 
as  to  the  deposit  by  the  appellant  of  201.  in  the 
hands  of  the  Registrar  of  the  Stannaries  Court 

Srior  to  appealing,  are  still  in  force.  West 
)evon  Great  Consols  Mine,  In  re,  38  Ch.  D.  51  ; 
57  L.  J.,  Ch.  850  ;  58  L.  T.  61  ;  36  W.  R.  342— 
C.A. 

Winding-up— Order  for  Inspection  of  Docu- 
ments.]—The  practice  of  the  Stannaries  Courtis 
the  same  as  that  of  the  High  Court  of  Justice, 
that  the  mere  fact  of  a  petition  is  not  enough  to 
justify  an  order  for  inspection  of  books.  But  if 
grounds  are  siioum,  the  petition  may  properly 
be  ordered  to  stand  over  to  allow  the  petitioner 
to  enforce  his  right  as  a  shareholder  to  inspection. 
The  right  of  inspection  under  the  22nd  section 
of  the  Stannaries  Act,  1855,  is  personal  to  the 
shareholder,  and  does  not  extend  to  his  solicitors 
or  agents.  West  Devon  Great  Consols  Mine, 
In  re,  27  Ch.  D.  106  ;  51  L.  T.  841  ;  32  W.  R. 
890— C.  A. 


COURT    FEES. 

See  PRACTICE. 
In  Bankruptcy.]— See  Bankruptcy. 


COVENANT. 

Whether   Independent.]  —  Covenants    in   a 
separation   deed,  by    which    respectively   the 


husband  has  covenanted  to  pay  an  annuity  to  & 
trustee  for  the  wife,  and  the  trustee  has  co?e- 
nanted  that  the  wife  shall  not  molest  the  hus- 
band, must  be  construed  as  independent  cove- 
nants in  the  absence  of  any  express  terms  making 
them  dependenty  and  therefore  a  breach  of  the 
covenant  that  a  wife  shall  not  molest  the  hus- 
band, is  not  an  answer  to  an  action  for  the  an- 
nuity. Fearon  v.  Aylesford  (Bart),  14  Q.  B.D. 
792  ;  54  L.  J.,  Q.  B.  33  ;  52  L.  T.  954  ;  33  W.  R. 
331 ;  49  J.  P.  596— C.  A. 

In  Conveyances.] — See  Vendor  and  Pus- 
chaser. 

In  Leases.]—  See  Landlord  and  Tenant. 

In  Mortgages.]— See  Mortgage. 

In  Deeds.]— See  Deed  and  Bond. 


CREMATION. 

Whether  a  Misdemeanour.] —To  burn  a  dead 
body,  instead  of  burying  it,  is  not  a  mis- 
demeanour, unless  it  is  so  done  as  to  amount  to 
a  public  nuisance.  If  an  inquest  ought  to  be 
held  upon  a  dead  body,  it  is  a  misdemeanour 
so  to  dispose  of  the  body  as  to  prevent  the 
coroner  from  holding  the  inquest.  Bee.  r. 
Price,  12  Q.  B.  D.  247  ;  53  L.  J.,  M.  C.  51 ;  3$ 
W.  R.  45  n. ;  15  Cox,  C.  C.  389— Stephen,  J.  8.  P. 
Beg.  v.  Stephenson,  13  Q.  B.  D.  331 ;  53  L.  J., 
M.  C.  176  ;  52  L.  T.  267  ;  33  W.  R.  44  ;  49  J.  P. 
486— C.  C.  R. 


CRIMINAL    LAW. 

I.  Persons,  Liability  of,  565. 

II.  Offences. 

1.  Abduction  of  Women  and  Children;— See 

infra,  20,  b. 

2.  Adulteration  of  Food  and  Drink.— Set 

Health. 

3.  Assault. — See  infra,  20,  c 

4.  Bankruptcy  Act,  Offences  against. —See 

Bankruptcy. 
6.  Bigamy,  566. 

6.  Conspiracy,  566. 

7.  Defamation.— See  Defamation. 

8.  Disorderly     House* —  See  DISORDERLY 

House. 

9.  Elections  —   Corrupt   Practices.—  See 

Election  Law. 

10.  Embezzlement  by  Clerks  or  Servants,  567. 

11.  Embezzlement  and    Frauds  by  Agents, 

Brokers  and  Trustees,  568. 

12.  False  Pretences,  569. 

13.  Falsification  of  Accounts,  572. 

14.  Felony  and  Felons,  573. 

15.  Forgery,  574. 

16.  Larceny  and  Receivers,  574. 

17.  Libel. — See  Defamation. 


565 


CRIMINAL    LAW— Persona,  Liability  of. 


566 


18.  Lunatics,     Ill-treatment     of.    —    See 

infra,  20,  d. 

19.  Misdemeanours,  678. 

20.  Murder,    Manslaughter    and    Offence* 

against  the  Person. 

a.  Murder  and  Manslaughter,  578. 

b.  Offences      against     Women     and 

Children,  580. 

c.  Assaults  and  Wounding,  582. 

d.  Ill-treatment  of  Lunatics,  583. 

21.  Obscenity  and  Indecency ,  583. 

22.  Perjury,  583. 

23.  Property,  Offences  as  to,  584. 

24.  Railways,  585. 

25.  Rape  and  Offences  against  Women  and 

Children. — See  supra,  20,  b. 

26.  Sanitary  Laws.— See  HEALTH. 

27.  Sedition,  585. 

28.  Treason- Felony,  586. 

29.  Unlawful  Assembly,  586. 

30.  Vagrants      and       Vagrancy.     —    See 

VAGRANT. 

HL  Jurisdiction,    Practice    and    Pro- 
cedure. 

1.  Jurisdiction,  586. 

2.  Indictment,  587. 

3.  Evidence,  588. 

4.  Trial,  691. 

5.  Bail,  594. 

6.  Error,  694. 

7.  New  Trial,  594. 

8.  Prisoners,  594. 


I.    RB0OV8,  LIABILITY  OF. 


.] — I  do  not  think  that  the  maxim  as 
to  the  mens  rea  has  so  wide  an  application  as  it 
is  sometimes  considered  to  ham  In  old  times, 
aad  at  applicable  to  the  common  law  or  to  earlier 
■Utotes,  the  maxim  may  have  been  of  general 
amplication  ;  but  a  difference  has  arisen  owing  to 
ue  greater  precision  of  modern  statutes.  It  is 
impossible  now  to  apply  the  maxim  generally  to 
all  statutes,  and  it  is  necessary  to  look  at  the 
object  of  each  act  to  see  whether  and  how  far 
knowledge  is  of  the  essence  of  the  offence 
cwated.  Candy  v.  Lecocq,  13  Q.  B.  D.  207  ;  58 
L  J.,  M.  C.  125  ;  51  L.  T.  265  ;  32  W.  R.  769  ; 
«  J.  P.  699— Per  Stephen,  J. 

lishaad  and  Wife- Coercion.]— Upon  an 
nriictment  for  highway  robbery  with  violence 
D.  and  his  wife  were  found  guilty,  the  jury 
fading  as  to  the  wife  that  she  had  acted  under 
the  compulsion  of  her  husband  : — Held,  that  as 
to  the  wife  the  verdict  amounted  to  one  of  not 
p%.  Beg.  y.  Dykes,  15  Cox,  C.  C.  771— 
Stephen,  J. 


3.  ASSAULT.— See  infra,  20,  c. 


590. 


m. 


Sridenee,  Admissibility.]—^  post,  col. 


.] — See  Beg.  v.  Doherty,  post,  col. 


IL    OFFEECES. 

L  ABDUCTION    OF    WOMEN    AND 
CHILDREN.— See  infra,  20,  b. 

1  ADULTERATION   OF   FOOD  AND 
DRINK.— See  HEALTH. 


4.  BANKRUPTCY     ACT,    OFFENCES 
AGAINST.— See  BANKRUPTCY. 

6.  BIGAMY, 

Evidonoe  —  Marriage  prima  facie  Illegal.] 
—  On  a  trial  for  bigamy  two  certificates 
were  produced,  one  purporting  to  be  the  certi- 
ficate of  the  marriage,  in  1843,  of  the  first 
wife  to  A.  prior  to  the  marriage  with  the 
prisoner  in  1875  ;  the  other  purporting  to  be  a 
certificate  of  the  death  of  A.  in  1880,  subse- 

Suent  to  the  marriage  with  the  prisoner  : — Held, 
lat  as  prima  facie  the  marriage  with  the  prisoner 
was  illegal,  the  so-called  first  wife  could  give 
evidence  on  the  trial  of  the  accused.  Reg. v.  Ay  ley. 
15  Cox,  C.  C.  328 — Kerr,  Commissioner. 

Proof  of  First  Marriage.] — Where  the  proof  of 
marriage  is  supported  by  a  copy  of  the  certificate 
and  evidence  that  the  prisoner  cohabited  with  a 
person  of  the  same  name  immediately  after- 
wards : — Held,  that  in  the  absence  of  witnesses 
of  the  marriage,  or  some  further  evidence,  the 
proof  was  insufficient.  Beg.  v.  Simpson,  16  Cox, 
C.  C.  323— Com.  Serj. 

In  charges  of  bigamy  it  is  incumbent  upon 
the  prosecution  to  prove  the  validity  of  the  first 
marriage.  Where,  therefore,  the  first  marriage 
has  been  contracted  without  the  due  publication 
of  banns  required  by  4  Geo.  IV.  c.  76,  the  pro- 
secution, in  order  to  show  that  the  case  is  not 
within  the  statute,  must  prove  that  the  want  of 
due  publication  was  unknown  to  one  of  the 
parties  previously  to  the  marriage  in  accordance 
with  Bex  v.  Wroxton  (4  B.  k  Ad.  640).  Beg. 
v.  Kay,  16  Cox,  C.  C.  292— Huddleston,  B. 

The  prisoner  went  through  the  form  of  mar- 
riage with  a  woman  whose  surname  was  Abel.  In 
order  to  conceal  the  fact,  he  published  her  banns 
in  the  surname  of  Anderson,  but,  except  that  she 
signed  the  register  in  the  name  of  Anderson, 
there  was  no  evidence  to  show  that  she  knew  of 
the  misdescription  until  after  the  solemnisation 
of  the  marriage.  Subsequently,  and  during  her 
lifetime,  the  prisoner  went  through  the  ceremony 
of  marriage  with  another  woman  : — Held,  that 
as  in  order  to  render  a  marriage  invalid  within 
4  Geo.  IV.  c.  76,  s.  22,  it  must  be  contracted  by 
both  parties  with  a  knowledge  that  no  due  pub- 
lication of  banns  had  taken  place,  it  was  incum- 
bent on  the  prosecution  to  snow  that  one  of  the 
parties  was  unaware  of  the  misdescription,  and 
that  there  was  no  evidence  of  such  want  of 
knowledge.    lb. 

6.    CONSPIRACY. 

Indictment  against  Two — Acquittal  or  Con- 
viction of  both.] — Where  two  persons  are  indicted 
for  conspiring  together,  and  they  are  tried  to- 
gether, both  must  be  acquitted  or  both  convicted. 
Beg.  v.  Manning,  12  Q.  B.  D.  241  ;  53  L.  J.,  M. 
C.  85  ;  51  L.  T.  121  ;  32  W.  R.  720  j  48  J.  P. 
536— D. 

Existence  of—  Evidenoe  of  Criminal  Object.] 
— See  Beg.  v.  Deasy,  post,  col.  686. 

Conspiracy  and  Protection  of  Property— In- 


567 


CRIMINAL   LAW— Offences. 


568 


tunidation.] — An  intimation  conveyed  in  a  letter 
to  an  employer  that  his  shop  would  be  picketed, 
in  language  so  threatening  as  "to  make  such 
employer  afraid/'  amounts  to  "intimidation" 
within  the  meaning  of  s.  7,  sub-s.  1,  of  the  Con- 
spiracy and  Protection  of  Property  Act,  1875  ; 
whether  the  picketing  amounts  to  an  unlawful 
watching  or  besetting  within  sub-8.  4  or  not. 
Judge  v.  Bennett,  36  W.  R.  103  ;  52  J.  P.  247 
— D. 

7.  DEFAMATION—  See  Defamation. 


8.  DISORDERLY     HOUSE.— See     Die- 
orderly  House. 

9.  ELECTIONS  —  C0RRUFT    PRACTICES. 
— See  Election  Law. 

10.  EMBEZZLEMENT  BY  CLERKS  OR 
SERVANTS. 

Clerk  or  Servant— Assistant  Overseer.]—  Upon 
an  indictment  under  24  &  25  Vict.  c.  95,  s.  68, 
for  embezzlement  by  a  clerk  or  servant,  it  is 
necessary  to  prove  that  the  prisoner  was  ap- 
pointed or  employed  to  collect  or  receive  money 
for  his  employer.  C,  having  been  nominated  by 
the  inhabitants  of  a  township  as  an  assistant 
overseer,  and  the  nomination  not  specifying  as 
one  of  the  duties  he  was  to  perform  the  duty  of 
collecting  or  receiving  money  : — Held,  that  in- 
asmuch as  under  59  Geo.  4,  c  12,  s.  7,  an  assistant 
overseer  can  only  be  appointed  by  justices  for 
such  purposes  as  are  specified  in  the  nomination, 
C.  could  not  be  convicted  of  embezzling  rates 
collected  by  him  as  a  clerk  or  servant  of  the 
inhabitants  within  the  meaning  of  24  &  25  Vict. 
c  95,  s.  68.  Reg,  v.  Coley,  56  L.  T.  747  ;  51  J.  P. 
710  ;  16  Cox,  C.  C.  226— C.  C.  R. 

Moneys  of  "  Copartnership  "-—Association  not 
for  Purposes  of  Gain.] — An  association  having 
for  its  object,  not  the  acquisition  of  gain,  but 
the  spiritual  and  mental  improvement  of  its 
members,  is  not  a  '*  copartnership,"  within  the 
meaning  of  the  term  as  used  in  31  &  32  Vict, 
c.  116,  s.  1.  Consequently  a  member  of  such  an 
association  who  has  embezzled  moneys  belonging 
to  it  cannot  be  convicted  under  the  above- 
mentioned  act  of  embezzling  the  moneys  of  a 
**  copartnership."  Reg.  v.  Robson,  16  Q.  B.  D. 
187  ;  55  L.  J.,  M.  C.  55  ;  53  L.  T.  823  ;  34  W.  R. 
276 ;  50  J.  P.  488  ;  15  Cox,  C.  C.  772— C.  C.  R. 

Separate  Charges  included  in  one  Indictment 
— Evidence  of  Votive  and  Intention.] — An 
indictment  charged  a  prisoner  with  having  as 
a  booking  clerk  of  certain  steamship  owners 
embezzled  the  moneys  of  his  masters  on  three 
separate  occasions,  the  charges  being  contained 
in  three  counts  of  the  same  indictment.  In 
support  of  the  first  count,  it  was  proved, 
amongst  other  things,  that  the  prisoner  received 
money  for  the  carriage  of  animals  by  steamer 
which  it  was  his  duty  to  pay  over  to  his 
masters'  cashier ;  in  support  of  the  second 
count,  that  he  was  supplied  with  a  number 
of  tickets  for  issue  to  passengers  by  his  masters' 
steamers,  which  purported  to  be  numbered  con- 
secutively, but  were  not  examined  before  they 


were  delivered  to  him.    The  tickets  were  tied  up 
in  bundles,  and  were  in  the  prisoner's  charge,  he 
alone  having  a  key  of  the  case  in  which  they 
were  kept.    Certain  tickets,  bearing  numbers 
corresponding  to  the  numbers  of  certain  of  the 
tickets  in  one  of  the  bundles  delivered  to  the 
prisoner,  assuming  such  bundle  to  have  been 
complete,  were  put  in  evidence,  which  tickets 
were  stamped  in  a  manner   similar  to  other 
tickets  which  the  prisoner  had  issued  to  pas- 
sengers by  one  of  the  steamers,  and  which  were 
notched  as  they  would  have  been  had  they  been 
used  by  passengers  on  board  such  steamer,  and 
evidence  was  given  that  the  prisoner  had  not 
handed  over  to  the  cashier  any  money  in  respect 
of  such  tickets.    Evidence  was  also  given  in 
support  of  the  third  count,  but  upon  this  count 
the  jury  found  the  prisoner  not  guilty,  while 
they  convicted  him  upon  the  first  and  second 
counts.    The  jury  were  directed,  as  to  the  first 
count,  that  they  might  take  into  consideration 
the  evidence  given  as  to  the  prisoner's  conduct 
in  relation  to  the  matters  charged  in  the  second 
and  third  counts ;  and  as  to  the  second  count, 
that  if  they  were  of  opinion,  from  the  whole  of  the 
evidence  that  the  prisoner  had  issued  the  tickets 
for  money  in  the  ordinary  way,  and  taken  the 
money  he  had  received  for  his  own  use,  making 
false  entries  in  his  books  to  conceal  it,  they 
might  find  him  guilty  :— Held,  that  the  jury 
were  justified  in  presuming  from  the  evidence 
in  support  of  the  second  count  that  the  prisoner 
had  issued  tickets  and  received  money  for  them, 
which  he  had  appropriated  ;  and  that  they  were 
at  liberty,  in  order  to  arrive  at  a  conclusion 
upon  any  one  of  the  charges,  to  take  into  con' 
sideration  the  evidence  given  in  support  of  the 
other  charges,  notwithstanding  the  fact  that  upon 
one  of  such  charges  they  found  a  verdict  of  not 
guilty.    Reg.  v.  Stephens,  58  L.  T.  776  ;  52  J.  P. 
823  ;  16  Cox,  C.  C.  387— C.  C.  R. 


11.    EMBEZZLEMENT    AND    FRAUDS  BY 
AGENTS,  BROKERS,  AND   TRUSTEES. 

Honey  intrusted  for  Specific  Purpose— Con- 
version of  Honey  by  Stockbroker.]— On  the 
2nd  November,  1885,  W.,  by  letter  instructed  the 
prisoner,  a  stockbroker,  to  buy  for  him  on  the 
following  day  certain  stock  at  90,  to  hold  for  a 
rise,  the  time  to  close  to  be  left  open,  and  inclosed 
a  cheque  for  217. 5*. "  for  cover  and  commission." 
On  the  3rd  November  the  stock  specified  was  at 
91£,  and  the  prisoner  paid  the  cheque  into  his 
bank  without  purchasing,  and  subsequently 
spent  the  money  for  his  own  use,  the  balance 
standing  to  his  credit  at  his  banker's  on  the 
14th  November  "being  only  HI.  Upon  a  case 
reserved  at  the  trial  of  an  indictment  under 
24  &  25  Vict.  c.  96,  s.  75,  which  charged  the 
prisoner  for  that  he  having  been  entrusted  as  a 
broker  and  agent  with  a  security  for  the  payment 
of  money,  with  a  direction  in  writing  to  apply 
it  for  a  specific  purpose,  in  violation  of  good 
faith,  and  contrary  to  the  terms  of  such  direc- 
tion, converted  to  his  own  use  such  security  :— 
Held,  that  the  prisoner  was  merely  the  agent  of 
W.  to  hold  and  apply  the  money  for  which  the 
cheque  was  sent  for  a  specific  purpose,  and  that 
he  was  rightly  convicted  under  the  circumstances 
of  having  converted  the  cheque  to  his  own  use, 
as  charged  in  the  indictment.    Reg.  v.  Oronmre, 


569 


CRIMINAL    LAW— Offence*. 


570 


54  L.  T.  580 ;  51  J.  P.  104  ;  16  Cox,  C.  C.  42— 
C.C.R. 

Agent  — Direction  in  Writing— Vendee  of 
floods,]— B.  agreed  to  purchase  corn  from  S.  and 
T.ata  certain  price,  and  received  delivery  orders 
for  the  same.  Before  actually  taking  delivery, 
B.  signed  an  undertaking  directed  to  S.  and  T. 
to  the  following  effect : — "  In  consideration  of 
roar  delivering  to  me  the  Indian  corn  bought 
this  day,  I  hereby  undertake  to  hand  you  the  pro- 
ceeds of  the  same  as  and  when  received,  and  to 
hold  myself  responsible  for  deficiency  should 
there  be  any."  B.  subsequently  sold  the  corn 
and  appropriated  the  proceeds  to  his  own  use : — 
Held,  that  B.  was  not  an  agent  but  the  vendee 
of  the  goods,  and  that  s.  75  of  24  &  25  Vict.  c.  96, 
did  not  apply.  Reg.  v.  Bredin,  15  Cox,  C.  C.  412 
-Bntt,  J. 

"Or  other  Agent."]— In  24  &  25  Vict.  c.  69, 
i  75,— which  enacts  that  whosoever,  having 
been  intrusted  as  a  banker,  merchant,  broker, 
attorney,  or  other  agent,  with  any  chattel  or 
valuable  security  for  safe  custody  or  for  any 
special  purpose,  without  any  authority  to  sell, 
negotiate,  transfer,  or  pledge,  shall  in  violation 
of  good  faith  and  contrary  to  the  object  or 
purpose  for  which  such  chattel,  security,  &c, 
wis  intrusted  to  him,  sell,  negotiate,  &c,  or  in 
any  manner  convert  to  his  own  use  or  benefit 
such  chattel  or  security,  shall  be  guilty  of  a 
misdemeanour — the  words  "or  other  agent" 
apply  to  persons  whose  occupation  is  similar  to 
those  enumerated  in  the  section,  and  do  not 
include  any  ordinary  agent  who  may  from  time 
to  time  be  intrusted  with  valuable  securities. — 
Where,  therefore,  the  prisoner,  who  was  not  a 
hanker,  merchant,  broker,  or  attorney,  was  em- 
ployed by  the  prosecutors,  who  were  railway 
contractors,  to  procure  for  them  a  contract  for 
the  construction  of  a  foreign  railway,  and  was 
charged  under  s.  75  with  having  misappropriated 
▼aluible  securities  with  which  the  prosecutors 
had  intrusted  him  in  the  course  of  his  employ- 
ment .—Held,  that  the  facts  disclosed  no  offence 
within  the  meaning  of  the  section,  and  that  the 
prisoner  was  not  liable  to  be  committed  with  a 
view  to  his  extradition.  Reg.  v.  Portugal  or 
De  Portugal,  In  re,  16  Q.  B.  D.  487 ;  55  L.  J., 
Q.  B.  567 ;  34  W.  R.  42  ;  50  J.  P.  501— D. 

By  Trustee.] — T.,  a  fruit  broker,  applied  to  his 
hankers  for  an  advance  as  against  certain  goods 
which  had  been  consigned  to  him  and  were  then 
at  sea,  he  depositing  with  them  the  indorsed 
bills  of  lading.  Before  making  the  advance  the 
hankers  required  him  to  sign  a  letter  of  hypothe- 
cation, by  which  he  undertook  to  hold  the  goods 
in  trust  for  the  bankers,  and  to  hand  over  to 
them  the  proceeds,  "  as  and  when  received,"  to 
the  amount  of  the  advance : — Held,  that  this 
fetter  contained  a  declaration  of  an  express  trust, 
each  as  would  make  the  giver  of  it  a  trustee  of 
the  proceeds  within  the  meaning  of  s.  80  of  the 
Uroeny  Act,  and  bis  appropriation  of  them  to 
Us  own  use  an  offence  against  that  section. 
Ay.  v.  Townthend,  15  Cox,  C.  C.  466— Day,  J. 


12.  FALSE  PRETENCES. 

Wtrd  Competition — Advertisement  containing 
false  Statement  of  Fact.]— The  following  adver- 


tisement was  inserted  by  the  prisoner  in  a  news- 
paper, viz. :  "  Barnardo. — 21.,  11.,  10*.,  for  most 
words  from  Barnardo.  No  single  letters  to  be 
used.  All  others  in  heavy  black  type  from 
Nuttall's  1886  Diet.  Proceeds  to  go  to  Dr. 
Barnardo's  Home  for  Destitute  Children.  Alpha- 
betical lists,  with  1*.  3rf.,  to  Rev.  A.  Brient. 
Holt,  Trowbridge,  Wilts,  by  March  5.  Result 
8th. "  No  such  person  as  the  Rev.  A.  Brient 
existed  at  the  address  given,  and  sums  of  money 
which  certain  persons  were  induced  to  send  in 
the  belief  that  a  bona  fide  competition  was 
indicated  by  the  advertisement,  were  received 
and  appropriated  by  the  prisoner : — Held,  that 
the  advertisement  was  capable  of  the  construc- 
tion put  upon  it  in  the  indictment ;  that  it  was 
intended  to  convey  the  impression  that  there 
was  a  person  named  A.  Brient,  living  at  Holt, 
Trowbridge,  in  the  county  of  Wilts,  who  was  a 
minister  of  religion,  and  that  he  had  instituted 
a  bona  fide  competition,  and  had  made  arrange- 
ments to  present  prizes  to  the  successful  com- 
petitors, and  to  give  the  proceeds  derived  from 
the  entrance  fees  of  competitors,  after  deducting 
the  prizes,  to  a  charitable  institution  ;  and  that 
it  was  a  question  for  the  jury  whether  the 
persons  who  had  sent  the  moneys,  with  the 
obtaining  which  the  prisoner  was  charged,  had 
sent  them  acting  under  that  impression.  Reg. 
v.  Randell,  57  L.  T.  718  ;  52  J.  P.  359  ;  16  Cox, 
C.  C.  335— C.  C.  R. 

Sale  of  Farm  Stock  subject  to  Bill  of  Sale- 
Onus  of  Proof  of  Consent  J — S.  was  tenant  of  a 
farm,  over  all  the  live  and  dead  stock  on  which, 
and  all  other  live  and  dead  farm  stock  which  at 
any  time  thereafter  should  be  in  or  about  the 
premises,  he  had  granted  a  bill  of  sale.  In  the 
ordinary  course  of  business  S.  would  have  been 
at  liberty  to  sell  stock  on*  the  farm,  but  two 
months  after  the  granting  of  the  bill  of  sale  he 
sold  all  the  farm  stock  which  was  upon  the 
farm,  without  anything  being  said  as  to  the 
ownership  of  the  stock,  or  as  to  the  existence  of 
the  bill  of  sale.  No  evidence  was  given  by  S. 
at  the  trial  of  an  indictment  against  him  for 
false  pretences  to  prove  that  he  had  obtained 
the  leave  of  the  bill  of  sale  holder  to  the  selling 
of  the  stock  in  question  : — Held,  that  the  onus 
lay  upon  S.  of  proving  that  he  had  leave  to  sell 
the  stock,  and  not  upon  the  prosecution ;  that 
S.  had  by  the  act  of  selling  the  stock  represented 
himself  as  being  the  absolute  owner  thereof ; 
and  that  the  prosecutor  had  paid  for  the  stock 
in  the  belief  that  S.  had  authority  to  sell  the 
same,  and  was  guilty  of  the  offence  of  obtaining 
money  by  false  pretences.  Reg.  v.  Sampson,  52 
L.  T.  772  ;  49  J.  P.  807— C.  C.  R. 

Proof  of  Falsity— Evidence.]— The  defendant, 
who  was  agent  to  an  insurance  company,  and 
whose  business  it  was  to  collect  the  annual 
premiums  from  persons,  insured  in  the  company, 
collected  from  one  Vellam,  in  1883,  the  annual 
premium  then  due  for  renewal  of  Vellam's  policy 
of  life  assurance.  The  defendant  did  not  account 
to  the  company  for  this  premium,  but  appro- 
priated it,  and  notified  to  the  company  that 
vellam  had  failed  to  renew  his  policy.  The 
company  thereupon  treated  the  policy  as  lapsed. 
On  the  7th  of  April,  1884,  the  defendant  called 
on  Vellam  for  his  annual  premium  as  usual. 
Vellam  was  unable  to  pay  the  amount  on  that 
day,  and  requested  the  defendant  to  call  later. 


671 


CRIMINAL    LAW— Offences. 


572 


The  defendant  came  again  on  the  21st  of  April, 
and  received  from  Vellam  a  sum  of  money  on 
account  of  the  annual  premium.  It  was  for 
obtaining  this  amount  that  the  defendant  was 
indicted,  the  indictment  charging  that  by  falsely 
pretending  to  Vellam  that  his  policy  was  then  in 
lull  force,  and  that  the  current  year's  premium 
thereon  was  then  due  and  payable,  and  that  he 
the  defendant  was  then  authorised  to  receive  the 
same,  he  induced  Vellam  to  pay  the  amount. 
On  the  21st  of  April  the  days  of  grace  within 
which  the  premium  had  to  be  paid  had  expired. 
Vellam  was  aware  of  this,  but  the  defendant 
told  him  that  the  payment  would  be  effectual : 
—  Held,  by  Lord  Coleridge,  C.  J.,  Huddleston,  B., 
and  Mathew,  J.,  that  there  was  evidence  for  the 
jury  in  support  of  the  indictment.  Held,  by 
Grove,  J.,  and  Manisty,  J.,  that  there  was  no 
evidence  to  go  to  the  jury  in  support  of  the  in- 
dictment, for  that  the  company  were  bound  by 
the  receipt  of  their  agent  in  1883,  and  conse- 
quently the  policy  did  not  then  lapse,  and  the 
defendant  made  no  false  pretence  in  represent- 
ing it  to  be  in  full  force  ;  and,  further,  that  as 
at  the  time  when  Vellam  paid  the  premium  in 
1884  he  knew  that  the  days  of  grace  had  ex- 
pired, the  defendant  did  not  obtain  the  amount 
from  him  on  the  false  pretences  alleged  in  the 
indictment.  Reg.  v.  Powell,  54  L.  J.,  M.  C.  26  ; 
51  L.  T.  713  ;  49  J.  P.  183 ;  15  Cox,  C.  C.  568— 
C  C.  R. 

Proof  that  Goods  or  Honey  parted  with  on 
Faith  of  Pretence.]  —  On  an  indictment  for 
obtaining  goods  by  false  pretences,  the  false 
pretence  charged  and  proved  being  that  the 
prisoner  was  daughter  of  a  lady  of  the  same 
name,  residing  at  a  certain  place,  there  being  no 
evidence  that  the  goods  were  not  delivered  to 
the  prisoner  before  her  name  and  address  were 
asked  for : — Held,  that  there  was  no  sufficient 
evidence  to  sustain  the  indictment,  it  being 
essential  on  a  prosecution  for  obtaining  goods 
by  false  pretences  to  prove  that  the  goods  were 
delivered  on  the  faith  of  the  false  pretence 
charged.  Reg.  v.  Jones,  50  L.  T.  726  ;  48  J.  P. 
616  ;  15  Cox,  C.  C.  475— C.  C.  R. 

H.  offered  drapery  stock  to  R.  for  a  sum, 
stating  it  was  all  right,  and  not  encumbered,  and 
R.  paid  the  money  and  took  possession.  It  was 
discovered  that  a  third  party  held  a  bill  of  sale 
for  double  the  sum  paid,  and  he  entered  and 
seized  the  stock.  H.  being  indicted  for  obtaining 
money  under  false  pretences: — Held,  by  Cole- 
ridge, C.  J.,  Pollock,  B.,  and  Lopes,  J.  (diss. 
Denman  and  Manisty,  J.J.)  that  the  conviction 
must  be  quashed,  inasmuch  as  it  did  not  suffi- 
ciently appear  that  the  money  was  parted  with 
in  consequence  of  the  false  pretence.  Reg.  v. 
Hazzlewood,  48  J.  P.  151—C.  C.  R. 

The  prisoner  went  to  the  house  of  the  prose- 
cutrix and  requested  to  be  taken  in  as  a  lodger. 
After  having  lodged  with  her  for  a  day  or  two, 
he  stated  that  he  had  come  from  another  lodging 
where  he  had  left  some  of  his  clothes,  and  re- 
quested to  be  furnished  with  board  as  well  as 
lodging,  for  which  he  promised  to  pay.  The 
prosecutrix,  believing  his  statement  as  to  his 
clothes,  agreed  to  supply  him,  and  did  supply 
him,  with  meat  and  drink  as  a  boarder.  A  few 
days  after  the  prisoner  decamped  without  pay- 
ing for  his  accommodation.  At  the  trial  of  an 
indictment  for  obtaining  goods  by  false  pretences 
the  jury  were  directed  that  they  must  be  satisfied 


that  the  pretence  was  false ;  that  it  was  acted 
on  by  the  prosecutrix  in  supplying  the  articles 
in  question  ;  and  that  it  was  made  by  the  prisoner 
with  intent  to  defraud.  The  jury  having  found 
a  verdict  of  guilty,  the  question  was  reserved 
for  the  court,  whether  upon  the  facts  the  prisoner 
was  entitled  to  an  acquittal: — Held,  that  the 
direction  was  substantially  accurate ;  that  upon 
the  evidence  the  jury  might  fairly  infer  that  the 
prosecutrix  had  acted  on  what  she  believed ; 
and  that  from  the  facts  stated  it  was  to  be 
inferred  that  the  jury  meant  she  so  acted  because 
she  believed  to  be  true,  the  statement  oithe 
prisoner,  which  was  in  fact  false.  Reg.  v.  Bur- 
ton, 54  L.  T.  765  ;  16  Cox,  C.  C.  62— C.  C.  B. 

Obtaining  Credit  by— Sufficiency  of  Indietmnt 
— Renewal  of  Bill  of  Exchange.]— In  an  indict- 
ment for  incurring  a  debt  or  liability  whereby 
credit  was  obtained  under  false  pretences  or  by 
means  of  fraud  under  s.  13,  sub-s.  1,  of  the 
Debtors  Act,  1869,  it  is  unnecessary  to  specify 
the  false  pretences  or  fraud  under  or  by  means 
of  which  the  credit  was  obtained,  a  19  of  the 
Act  rendering  it  sufficient  to  state  the  substance 
of  the  offence  in  the  words  of  the  Act,  or  as  near 
thereto  as  circumstances  admit.  The  renewal  of 
a  bill  of  exchange  obtained  under  false  pretences 
or  by  means  of  fraud  is  an  incurring  a  debt  or 
liability  whereby  credit  is  obtained  within  the 
meaning  of  sub-s.  1  of  s.  13  of  the  Debtors  Act 
1869.  Reg.  v.  Pierce,  56  L.  J.t  M.  C.  85 ;  56 
L.  T.  532  ;  51  J.  P.  790  ;  16  Cox,  C.  C.  213— C. 
C.  R. 

Venue.] — H.  wrote  and  posted  at  N.  in  Eng- 
land a  letter,  addressed  to  Gr.  at  a  place  out  of 
England,  containing  a  false  pretence,  by  means 
of  which  he  fraudulently  induced  G.  to  transmit 
to  N.  a  draft  for  150/.  which  he  there  cashed:— 
Held,  by  the  court,  that  there  was  jurisdiction  to 
try  H.  at  N.,  that  the  pretence  was  made  at  N., 
where  also  the  money  obtained  by  means  of  it 
was  received.  Reg.  v.  Holmes,  12  Q.  B.  D.  23 ; 
53  L.  J.,  M.  C.  37  ;  49  L.  T.  540  ;  32  W.  R.  372; 
15  Cox,  C.  C.  343— C.  C.  R. 

Contract  Induced  by — Conviction— Bovostiag 
of  Property— Sale  in  Market  overt.]— The  owner 
of  goods,  induced  by  fraud,  parted  with  them 
under  a  voluntary  contract  of  sale  which  Tested 
the  property  in  the  fraudulent  purchasers.  The 
goods  were  then  sold  in  market  overt  to  a  pur- 
chaser without  notice  of  the  fraud.  The  franda- 
lent  purchasers  were  afterwards,  upon  the  prose- 
cution of  the  original  owner,  convicted  of  obtain- 
ing the  goods  by  false  pretences.  The  judge 
before  whom  the  prisoners  were  tried  refused  to 
make  an  order  of  restitution  : — Held,  that  under 
24  &  26  Vict.  c.  96,  s.  100,  the  property  in  the 
goods  revested  in  the  original  owner  upon  con- 
viction, and  that  he  was  entitled  to  recover  them 
from  the  innocent  purchaser.  Moyee  v.  Xewing- 
ton  (4  Q.  B.  D.  32)  overruled.  Bentley  v.  FtJ- 
nwnt,  12  App.  Cas.  471  ;  67  L.  J.,  Q.  B.  18 ;  57 
L.  T.  854 ;  36  W.  R.  481 ;  52  J.  P.  68— H.  h. 

(BO. 

13.  FALSIFICATION  OF  ACCOUNTS. 

Xaking  and  concurring  in  making  Falsi 
Entry— False  Memorandum  copied  into  Cask- 
book.] — B.,  a  collector  in  the  employment  of  Xn 


573 


CRIMINAL    LAW—  Offences. 


574 


collected  on  the  22nd  February  from  Sheppard 
91  Us.  lOd.  due  to  N.  The  ordinary  course  of 
bonnes  was  for  B.,  at  the  end  of  each  day,  to 
account  to  E.,  N.'s  cash  clerk,  for  moneys  col- 
lected during  the  day,  E.'s  duty  being  to  enter 
payments  accounted  for  by  B.  in  the  cash-book. 
On  the  evening  of  the  22nd  February  B.  gave  E. 
*  dip  of  paper  on  which  he  had  written,  "  Shep- 
puu,  on  account,  6/.,"  which  E.  copied  into  the 
cash-book,  believing  it  represented  the  whole 
amount  collected  by  B.  from  Sheppard  : — Held, 
that  B.  was  rightly  convicted  under  s.  1  of  the 
Falsification  of  Accounts  Act,  1875.  Reg.  v. 
Aft,  51  L.  T.  607  ;  49  J.  P.  233  ;  15  Cox,  C.  C. 
5M-C.  C.  R. 


14.  FELONY  AND  FELONS. 

Peath  caused  by  Act  done  in  Committing 
Palony.]— See  Reg.  v.  Semi,  post,  col.  579. 

Iadietaent  for  Compounding—Who  may  be 
fmltyol] — An  indictment  for  compounding  a 
felony  need  not  allege  that  the  defendant  de- 
sisted from  prosecuting  the  felon.  The  offence 
of  compounding  a  larceny  may  be  committed 
by  a  person  other  than  the  owner  of  the  goods 
stolen  or  a  material  witness  for  the  prosecution. 
See.  v.  Surges*,  16  Q.  B.  D.  141  ;  55  L.  J.,  M.  C. 
W;  53  L.  T.  918;  34  W.  R.  306;  50  J.  P.  520  ; 
15  Cox,  C.  C.  779^-C.  C.  R. 


Action  whether  maintainable  where  Felony 
disclosed.] — In  an  action  for  the  seduction  of 
the  plaintiffs  daughter  a  paragraph  of  the  state- 
ment of  claim  alleged  that  the  defendant  ad- 
Ministered  noxious  drugs  to  the  daughter  for  the 
purpose  of  procuring  abortion  : — Held,  that  tbe 
paragraph  could  not  be  struck  out  as  disclosing 
a  felony  for  which  the  defendant  ought  to  have 
been  prosecuted,  inasmuch  as  the  plaintiff  was 
not  the  person  upon  whom  the  felonious  act  was 
committed,  and  had  no  duty  to  prosecute.  Ap- 
fleby  v.  Franklin,  17  Q.  B.  D.  93 ;  55  L.  J., 
Q.  B.  129 ;  54  L.  T.  135;  34  W.  R.  231  ;  50  J.  P. 
3S9-D. 

Action  by  Felon — Effect  of  Felony  on  acquir- 
ing Property.] — A  testatrix  by  her  will,  dated 
in  July,  1869,  devised  and  bequeathed  all  her 
real  and  personal  estate  to  T.  K.  in  trust  for  her 
aster  M.  C.  for  life,  and  after  her  decease  upon 
tract  to  pay  to  or  permit  H.  C.  D.  to  receive  the 
interest  for  his  life,  but  if  he  should  become 
bankrupt,  or  publicly  insolvent,  or  should  com- 
pound with  nie  creditors,  or  should  assign  or 
tBcmnber  his  interest  under  the  trust,  or  any 
part  thereof,  or  should  otherwise  by  his  own  act, 
or  by  operation  of  law,  be  deprived  of  the  abso- 
lute personal  enjoyment  of  the  same  interest,  or 
toy  part  thereof,  then,  and  in  either  of  such  cases, 
toe  treat  in  favour  of  H.  C.  D.  should  be  void, 
«ad  T.  IL  should  thenceforth  apply  the  interest 
far  the  maintenance,  education,  and  support  of 
tbe  children  of  H.  C.  D.  The  testatrix  died  in 
1971.  and  M.  C.  died  in  1881.  In  July,  1878, 
H.  C.  D.  was  convicted  of  felony,  and  sentenced 
totai  years'  penal  servitude.  Before  the  expira- 
tion of  his  sentence  he  obtained  a  ticket-of -leave, 
and  commenced  this  action  for  the  administra- 
tion of  the  estate  of  testatrix,  and  claimed  the 
arrears  of  interest : — Held,  that,  under  s.  30  of 
tbe  Act  33  k  34  Vict,  c  23,  he  could  commence 


the  action.  Held,  also,  that  he  had  not  been 
deprived  of  the  actual  enjoyment  of  the  life 
interest  by  any  operation  of  law  ;  and  that  he 
was  entitled  to  all  arrears  of  interest.  Bash,  In 
re,  Barley  v.  King,  57  L.  T.  219— Chitty,  J. 

15.   FORGERY. 

Uttering  Bonds  Received  Abroad  by  Post — 
Dealing  with  Proceeds  in  England.] — A  com- 
pany in  Brussels  received  on  4th  January  a  letter 
from  N.  &  Co.,  a  firm  in  London,  containing  a 
number  of  foreign  bonds  for  negotiation.  They 
accordingly  on  the  5th  January  sent  to  N.  &  Co., 
by  post  a  cheque  for  1,500/.  On  6th  January  the 
cheque  was  paid  into  a  bank  in  London  by  T., 
the  only  person  known  at  N.  &  Co.'s  offices,  to 
the  account  of  N.  &  Co. ;  and  on  7th  January 
cheques  drawn  by  N.  &  Co.  were  presented  at 
such  bank  by  T.,  who  received  1,495Z.  in  respect 
thereof.  On  the  12th  January  F.,  who  was  an 
associate  of  T.,  endeavoured  to  telegraph,  under 
an  assumed  name,  a  sum  of  money  from  London 
to  Stockholm,  but  was  too  late  to  do  so.  Upon 
an  indictment  which  charged  F.  and  T.  with 
having  forged  and  uttered  the  bonds  with  intent 
to  defraud : — Held,  that  it  was  a  question  for 
the  jury  whether  there  was  sufficient  evidence 
of  the  forged  bonds  having  been  posted  in  this 
country ;  and  that,  if  they  were  satisfied  that 
there  was  sufficient  evidence,  they  could  find 
both  the  prisoners  guilty  of  uttering  the  forged 
bonds  upon  the  indictment.  Reg.  v.  Finkelstein, 
16  Cox,  C.  C.  107— Com.  Serj. 

Effect  of  Forged  Transfer  of  Stock.] — See 
ante,  col.  389. 

Effect  of  forged  Certificates  of  Shares.] — See 
ante,  col.  394. 

16.   LARCENY  AND  RECEIVERS. 

Water  in  Pipes,  whether  the  Subject  of.] — 
Water  supplied  by  a  water  company  to  a  con- 
sumer, ana  standing  in  his  pipes,  may  be  the 
subject  of  larceny  at  common  law.  Ferens  v. 
O'Brien,  11  Q.  B.  D.  21 ;  52  L.  J.,  M.  C.  70  ; 
31  W.  R.  463  ;  47  J.  P.  472  ;  15  Cox,  C.  C.  332 
— D. 

"  Taking  "  —  Automatic  Box  —  Dropping  in 
Disc  instead  of  Penny.] — Against  the  wall  of  a 
public  passage  was  fixed  what  is  known  as  an 
"  automatic  box,"  the  property  of  a  company. 
In  such  box  was  a  slit  of  sufficient  size  to  admit 
a  penny  piece,  and  in  the  centre  of  one  of  its 
sides  was  a  projecting  button  or  knob.  The  box 
was  so  constructed  that,  upon  a  penny  piece 
being  dropped  into  the  slit  and  the  knob  being 
pushed  in,  a  cigarette  would  be  ejected  from  the 
box  on  to  a  ledge  which  projected  from  it.  Upon 
the  box  were  the  following  inscriptions  :  "  Only 
pennies,  not  half -pennies  ;"  "  To  obtain  an 
Egyptian  Beauties  cigarette  place  a  penny  in 
the  box  and  push  the  knob  as  far  as  it  will  go." 
The  prisoners  went  to  the  entrance  of  the  pas- 
sage, and  one  of  them  dropped  into  the  slit  in 
the  box  a  brass  disc  about  the  size  and  shape  of 
a  penny,  and  thereby  obtained  a  cigarette,  which 
he  took  to  the  other  prisoners  : — Held,  that  the 
prisoners  were  guilty  of  larceny.  Reg.  v.  Hands, 
56  L.  T.  370  ;  52  J.  P.  24  ;  16  Cox,  C.  C.  188— 
C.  C.  R. 


575 


CRIMINAL    LAW— Offences. 


576 


invito  domino — Delivery  of  Chattel 
under  oommon  Mistake.] — The  prisoner  asked 
the  prosecutor  for  the  loan  of  a  shilling.  The 
prosecutor  gave  the  prisoner  a  sovereign  believ- 
ing it  to  be  a  shilling,  and  the  prisoner  took  the 
coin  under  the  same  belief.  Some  time  afterwards 
he  discovered  that  the  coin  was  a  sovereign,  and 
then  and  there  fraudulently  appropriated  it  to 
his  own  use.  The  prisoner  was  convicted  of 
larceny  of  the  sovereign: — Held,  that  the  pri- 
soner had  not  been  guilty  of  larceny  as  a  bailee  ; 
but  the  Court  being  equally  divided  as  to  whether 
the  prisoner  had  been  guilty  of  larceny  at 
common  law,  the  conviction  stood.  Reg.  v  Ash- 
well,  16  Q.  B.  D.  190  ;  55  J.  J.,  M.  C.  65  ;  53 
L.  T.  773  ;  34  W.  R.  297  ;  50  J.  P.  181 ;  16  Cox, 
C  C  1 — C  C  R. 

The  old  rule  of  law  that  the  innocent  receipt 
of  a  chattel,  coupled  with  its  subsequent  frau- 
dulent appropriation,  does  not  amount  to  larceny, 
is  not  affected  by  the  decision  in  Reg.  v.  Ashwell, 
supra.  That  case  distinguished  and  discussed. 
Reg.  v.  Flowers,  16  Q.  B.  D.  643  ;  55  L.  J.,  M.  C. 
179  ;  54  L.  T.  547  ;  34  W.  R.  367  ;  50  J.  P.  648  ; 
16  Cox,  C.  C.  33— C.  C.  R. 

By  Trick— Ringing  the  Changes.]— The  two 
prisoners  by  a  series  of  tricks  fraudulently 
induced  a  barmaid  to  pay  over  money  of  her 
master  to  them,  without  having  received  from 
them  in  return  the  proper  change  ;  the  barmaid 
had  no  authority  to  pay  over  money  without 
receiving  the  proper  change,  and  had  no  inten- 
tion of  or  knowledge  that  she  was  so  doing  : — 
Held,  that  the  prisoners  were  properly  convicted 
of  larcenv.  Reg.  v.  Jlollis.  12  Q.  B.  D.  25  ;  53 
L.  J.,  M.  C.  38  ;  49  L.  T.  572  ;  32  W.  R.  372  ;  48 
J.  P.  120  ;  15  Cox,  C.  C.  345— C.  C.  R. 


Honey   deposited   to    abide   event   of 


Wager.] — The  prisoner  was  at  a  race-meeting 
offering  to  lay  odds  against  different  horses.  He 
made  a  bet  with  the  prosecutor  laying  odds 
against  a  particular  horse,  and  the  money  for 
which  the  prosecutor  backed  the  horse  was 
deposited  with  the  prisoner.  The  prosecutor 
admitted  that  he  would  have  been  satisfied  if  he 
did  not  receive  back  the  same  coins.  The  horse 
won,  but  the  prisoner  went  away  with  the 
money,  and  afterwards  when  the  prosecutor  met 
him  he  denied  that  he  had  made  the  bet.  The 
prisoner  was  convicted  of  larceny,  and  a  case 
was  reserved,  the  question  being  whether  there 
was  any  evidence  to  be  left  to  the  jury  : — Held, 
that  as  it  appeared  that  the  prosecutor  parted 
with  his  money  with  the  intention  that  in  the 
event  of  the  horse  winning  it  should  be  repaid, 
while  the  prisoner  obtained  possession  of  the 
money  fraudulently,  never  intending  to  repay  it 
in  any  event,  there  was  no  contract  by  which 
the  property  in  the  money  could  pass,  and  there- 
fore there  was  evidence  of  larceny  by  a  trick. 
Reg.  v.  Bnckmaster,  20  *Q.  B.  D.  182  ;  57  L.  J., 
M.  C.  25  ;  57  L.  T.  720 ;  36  W.  R.  701  ;  52  J.  P. 
358  ;  16  Cox,  C.  C.  339— C.  C.  R. 

By  Bailee — Fraudulent  Conversion — Evidence 
of  Intent.] — Prisoner,  a  travelling  watchmaker, 
on  two  separate  occasions  received  from  different 
persons  watches  which  he  was  to  repair.  One  of 
the  watches  was  pledged  by  the  prisoner  in 
November,  1886,  and  the  other  before  Christmas 
in  that  year.    Upon  pledging  the  first  watch  the 


prisoner  stated  that  he  only  wanted  the  money 
for  which  he  pledged  it  temporarily.  And  upon 
pledging  the  second  watch,  he  requested  the 
person  with  whom  he  pledged  it  not  to  part 
with  it,  as  it  was  not  his  property.  Upon  an 
indictment  under  24  &  25  Vict.  c.  96,  a.  3,  for 
the  fraudulent  conversion  of  the  watches  by  the 
prisoner  while  a  bailee  thereof : — Held,  that 
there  was  some  evidence  of  a  fraudulent  con- 
version, i.e.,  an  intention  on  the  part  of  the 
prisoner  to  deprive  the  prosecutors  permanently 
of  their  property,  there  being  no  evidence  that 
any  effort  had  been  made  by  the  prisoner  to 
redeem  the  watches;  and  he  never  having 
shown  any  intention  beyond  the  statements 
referred  to,  of  so  doing.  Reg.  v.  Wynn,  56 
L.  T.  749 ;  52  J.  P.  55  ;  16  Cox,  C.  C.  231- 
C  C.  R. 


Infant,  Bailment  to.] — An  infant  over 


fourteen  years  of  age  fraudulently  converted 
to  his  own  use  goods  which  had  been  delivered 
to  him  by  the  owner  under  an  agreement  for 
the  hire  of  the  same : — Held,  that  he  was  rightly 
convicted  of  larceny  as  a  bailee  of  the  goods 
under  24  &  25  Vict.  c.  96,  s.  3.  Reg.  v. 
McDonald,  15  Q.  B.  D.  323 ;  52  L.  T.  583 ;  33 
W.  R.  735  ;  49  J.  P.  695  ;  15  Cox.  C.  C.  757- 
C.  C.  R. 


Bailment  of  Honey.] — A  prisoner  was 


convicted  of  larceny  under  the  following  cir- 
cumstances : — The  prosecutor  gave  a  mare  of  his 
into  the  care  of  the  prisoner,  telling  him  that 
it  was  to  be  sold  on  the  next  Wednesday.  On 
the  next  Wednesday  the  prosecutor  did  not  go 
himself  to  sell  his  mare,  but  sent  his  wife,  who 
went  to  where  the  prisoner  was  and  saw  him 
riding  the  mare  about  a  horse  fair,  and  sell  her 
to  a  third  party,  and  receive  on  such  sale  some 
money.  The  prosecutor's  wife  after  such  sale 
asked  the  prisoner  to  give  her  the  money,  saying 
she  would  pay  his  expenses.  This  the  prisoner 
declined  to  do,  and  eventually  he  absconded 
with  the  money  and  without  accounting:— 
Held  (Stephen,  J.,  dissenting),  that  there  was 
evidence  that  the  prisoner  was  a  bailee  of  the 
money  thus  paid  to  him,  and  that  the  conviction 
could  be  supported.  Reg.  v.  Banks,  13  Q.  B.  D. 
29 ;  53  L.  J.,  M.  C.  132  ;  50  L.  T.  427 ;  32  W. 
R.  722  ;  48  J.  P.  470  ;  15  Cox,  C.  C.  450— C.  C.  R. 
See  also  Reg.  v.  Ashwell,  supra. 

Fraudulent  Appropriation  by  Agents,  Broken, 
and  Trustees.] — See  ante,  cols.  568,  569. 

Receiving  Stolen  Goods— Evidence— Guilty 
Knowledge.] — Upon  the  trial  of  a  prisoner  for 
receiving  stolen  property  with  a  guilty  know- 
ledge, evidence  was  admitted  that  shortly  before 
the  stealing  of  the  property  in  question  he  had 
been  in  possession  of  other  stolen  property  of  a 
similar  character,  though  he  had  parted  with  the 
possession  of  such  other  property  before  the  date 
of  the  stealing  of  the  property  charged  in  the 
indictment : — Held,  that  such  evidence  was  in- 
admissible, and  did  not  fall  within  the  words  of 
s.  19  of  the  Prevention  of  Crimes  Act,  1871. 
Reg.  v.  Carter,  12  Q.  B.  D.  522  ;  53  L.  J.,  M.  0. 
96  ;  50  L.  T.  432,  596 ;  32  W.  R.  663 ;  48  J.  P. 
456  ;  15  Cox,  C.  C.  448— C.  C.  R. 

Account  given  by  Prisoner — Evidence  to 

Negative.] — On   an   indictment    for   receiving 


577 


CRIMINAL    LAW— Offences. 


678 


goods,  knowing  them  to  have  been  stolen,  the 
prisoner's  account  being  that  he  had  purchased 
them  of  a  tradesman  in  the  same  town,  other 
circumstances  in  the  case  tending  to  negative  it, 
though  the  tradesman  was  not  called  for  the 
prosecution : — Held,  that  it  was  not  necessary  to 
call  him  on  the  part  of  the  prosecution,  there 
being  other  circumstances  in  the  case  from 
which  the  jury  might  fairly  infer  the  false- 
hood of  the  prisoner's  story.  Reg.  v.  Bit  son,  50 
L.  T.  727 ;  48  J.  P.  630  ;  15  Cox.  C.  C.  478— 
C  C.  R. 

letutution    Order — Proceeds — Jurisdiction.] 

—The  court  before  whom  a  person  charged  with 
larceny  is  tried  has  jurisdiction,  under  24  &  25 
Vict.  c.  96,  8.  100,  on  his  conviction  to  order 
restitution  to  the  original  owner  of  the  proceeds 
of  the  stolen  property  in  the  bands  of  the  con- 
vict or  his  agent.  Rrg.  v.  Central  Criminal 
flirt  JJ..  18  Q.  B.  D.  314  ;  56  L.  J.,  M.  C.  25  ; 
56  L  T.  352  :  33  W.  R.  243  ;  51  J.  P.  229  ;  16 
Cox,  C.  C.  196— C.  A. 

—  Beveating  of  Property— Sale  in  Market 

Overt  to  innocent  Purchaser.] — The  owner  of 

goods,  induced  by  fraud,  parted  with  them  under 

a  voluntary  contract  of  sale  which  vested  the 

property  in    the    fraudulent    purchasers.    The 

goods  were  then  sold  in   market    overt   to    a 

purchaser  without  notice  of   the  fraud.    The 

fraudulent   purchasers    were    afterwards,  upon 

the  prosecution  of  the  original  owner,  convicted 

of  obtaining  the  goods  by  false  pretences.      The 

judge  before  whom   the  prisoners  were  tried 

refused  to  make  an  order  of  restitution  : — Held, 

that  under  24  &  25  Vict.  c.  96,  s.  100,  the  pro- 

pertjin  the  goods  revested  in  the  original  owner 

upon  conviction,  and  that  he  was  entitled  to 

recover  them    from    the   innocent    purchaser. 

Mtyce  v.  Xeunngton  (4  Q.  B.  D.  32)  overruled. 

Bntley  v.  Vilmont,  12  App.  Cas.  471  ;  67  L.  J., 

Q.  B.  18  :  57  L.  T.  854  ;  36  W.  R.  481  ;  62  J.  P. 

«-H.  L.  (E.). 

fcb  in  Market  Overt— Stolen  Goods.]— The 
defendants  were  public  sales-masters,  and  trans- 
acted their  business  in  a  legally  established  cattle 
market,  where  a  market  overt  for  the  sale  of  cattle 
and  sheep  was  held  once  a  week.  A  number  of 
aheep,  which  had  been  stolen  from  the  plaintiff, 
were  brought  on  a  market  day  to  the  stand  of 
the  defendants  bv  the  thief,  who  employed  the 
defendants  to  sell  the  sheep  for  him.  The 
defendants,  in  ignorance  of  the  theft,  placed 
the  aheep  in  their  stand,  and  sold  and  delivered 
ton  to  a  purchaser,  by  whom  they  were  re- 
moved "—Held,  that  the  defendants  were  liable 
to  the  plaintiff  in  an  action  of  trover  for  the 
jalue  of  the  sheep.  Drlaney  v.  WallU,  13 
U  K,  h.  31  ;  15  Cox,  C.  C.  525— C.  A.,  and  see 
preceding  case. 

CMs  purchased  with  Stolen  Money.]— The 
plaintiff  had  stolen  money  of  the  defendant  and 
*as  prosecuted  by  him  for  so  doing,  but  was 
acquitted  on  a  technical  ground.  The  plaintiff 
had,  previously  to  the  prosecution,  converted  the 
•oney  into  goods.  These  were  in  the  house  of 
to  prosecutor,  and  detained  by  him  as  being  the 
proceeds  of  the  money  stolen  by  him.  The 
plaintiff  brought  an  action  in  the  county  court 
for  return  of  some  of  the  goods  and  for  damages 
for  the  conversion  of  others  of  them  : — Held, 


that  the  county  court  judge  was  right  in  giving 
judgment  for  the  defendant.  Cattley  v.  Loundee, 
34  W.  R.  139— D. 


17.  LIBEL.— See  Defamation. 

18.  LUNATICS,  ILL-TREATMENT  OF.— See 

post,  col.  583. 

19.  MISDEMEANOURS. 

Obstructing  Coroner — Burning  Dead  Body.l — 
It  is  a  misdemeanour  to  burn  or  otherwise  dis- 
pose of  a  dead  body,  with  intent  thereby  to 
prevent  the  holding  upon  such  body  of  an 
intended  coroner's  inquest,  and  so  to  obstruct 
a  coroner  in  the  execution  of  his  duty,  in  a 
case  where  the  inquest  is  one  which  the  coroner 
has  jurisdiction  to  hold.  Reg.  v.  Stephenson,  13 
Q.  B.  D.  331 ;  53  L.  J.,  M.  C.  176  ;  52  L.  T.  267  ; 
33  W.  R.  44  ;  49  J.  P.  486— C.  C.  R. 

To  burn  a  dead  body,  instead  of  burying  it,  is 
not  a  misdemeanour,  unless  it  is  so  done  as  to 
amount  to  a  public  nuisance.  If  an  inquest 
ought  to  be  held  upon  a  dead  body,  it  is  a 
misdemeanour  to  dispose  of  the  body  so  as  to 
prevent  the  coroner  from  holding  the  inquest. 
Reg.  v.  Price*  12  Q.  B.  D.  247  ;  63  L.  J.,  M.  C. 
51  ;  33  W.  R.  45  n. ;  15  Cox,  C.  C.  389— 
Stephen,  J. 


20.    MURDER,    MANSLAUGHTER,    AND 
OFFENCES  AGAINST  THE  PERSON. 

a.   Murder  and  Manslaughter. 

Agreement  to  Commit  Suicide.]  —  If  two 
persons  enter  into  an  agreement  to  commit 
suicide  together,  and  the  means  employed  to 
produce  death  prove  fatal  to  one  only,  the 
survivor  is  guilty  of  murder.  Reg.  v.  Jeseop,  16 
Cox,  C.  C.  204— Field,  J. 

Reasonable  Belief  of  Necessity.]  —  Under 
circumstances  which'  might  have  induced  the 
belief  that  a  man  was  cutting  the  throat  of 
his  wife,  their  son  shot  and  killed  his  father.  On 
the  trial  of  the  son  for  murder  : — Held,  that  if 
the  accused  had  reasonable  grounds  for  believing 
and  honestly  believed  that  his  act  was  necessary 
for  the  defence  of  his  mother,  the  homicide  was 
excusable.  Reg.  v.  Rose,  15  Cox,  C.  C.  640— 
Lopes,  J. 

Extreme  Necessity.] — A  man  who,  in  order 
to  escape  death  from  nunger,  kills  another  for 
the  purpose  of  eating  his  flesh,  is  guilty  of 
murder  ;  although  at  the  time  of  the  act  he  is 
in  such  circumstances  that  he  believes  and  has 
reasonable  ground  for  believing  that  it  affords 
the  only  chance  of  preserving  his  life.  At  the 
trial  of  an  indictment  for  murder  it  appeared,, 
upon  a  special  verdict,  that  the  prisoners  D.  and 
S.,  seamen,  and  the  deceased,  a  boy  between 
seventeen  and  eighteen,  were  cast  away  in  a 
storm  on  the  high  seas,  and  compelled  to  put 
into  an  open  boat ;  that  the  boat  was  drifting 
on  the  ocean,  and  was  probably  more  than  1,000 
miles  from  land ;  that  on  the  eighteenth  day, 
when  they  had  been  seven  days  without  food 

U 


679 


CRIMINAL    LAW— Offence*. 


580 


and  five  without  water,  D.  proposed  to  S.  that 
lots  should  be  cast  who  should  be  put  to  death 
to  save  the  rest,  and  that  they  afterwards 
thought  it  would  be  better  to  kill  the  boy  that 
their  lives  should  be  saved ;  that  on  the  twentieth 
day  D.,  with  the  assent  of  8.,  killed  the  boy,  and 
both  8.  and  D.  fed  on  his  flesh  for  four  days ; 
that  at  the  time  of  the  act  there  was  no  sail  in 
sight  nor  any  reasonable  prospect  of  relief ;  that 
under  these  circumstances  there  appeared  to  the 
prisoners  every  probability  that  unless  they  then 
or  very  soon  fed  upon  the  boy,  or  one  of  them- 
selves, they  would  die  of  starvation  : — Held,  that 
upon  these  facts,  there  was  no  proof  of  any  such 
necessity  as  could  justify  the  prisoners  in  killing 
the  boy,  and  that  they  were  guilty  of  murder. 
Reg.  v.  Dudley,  14  Q.  B.  D.  273,  560 ;  54  L.  J., 
M.  C.  32  ;  52  L.  T.  107  ;  33  W.  R.  347  ;  49  J.  P. 
69  ;  15  Cox,  C.  C.  624— C.  C.  R. 

Death  caused  by  Aot  known  to  be  dangerous 
to  Life.] — If  a  person  causes  death  by  an  act 
known  to  be  in  itself  eminently  dangerous  to 
life  he  is  guilty  of  murder.  Reg.  v.  Serrie,  16 
Cox,  C.  C.  311— Stephen,  J. 

Death  caused  by  Aot  done  in  eommitting 
Felony.] — Quaere,  whether  the  rule,  that  an  act 
done  in  the  commission  of  a  felony  which  causes 
death  is  in  all  cases  murder,  is  not  stated  too 
broadly  ;  and  whether  it  should  not  be  confined 
to  felonious  acts  dangerous  to  life.    lb. 

Malice  Aforethought — Drunkenness.]— To  do 
an  act  with  malice  aforethought  means  to  do  a 
cruel  act  voluntarily ;  and  anybody  who  inten- 
tionally inflicts  grievous  bodily  harm  on  another, 
intending  to  do  bodily  harm,  is  guilty  of  murder  if 
he  causes  death.  The  intention  of  the  party  guilty 
of  murder  being  an  element  of  the  crime  itself, 
the  fact  that  a  man  was  intoxicated  at  the  time 
he  caused  the  death  of  another  may  be  taken 
into  consideration  by  the  jury  in  considering 
whether  he  formed  the  intention  necessary  to 
constitute  the  crime  of  murder.  Reg.  v.  Do- 
herty,  16  Cox,  C.  C.  306— Stephen,  J. 

Manslaughter — Hegligenee.  ] — Manslaughter 
by  negligence  occurs  when  a  person  in  doing 
anything  dangerous  in  itself,  or  having  charge  of 
anything  dangerous  in  itself,  conducts  himself  in 
regard  to  it  in  such  a  careless  manner  as  to  be 
guilty  of  culpable  negligence.    lb. 


Neglect  of  Duty— Refusal  of  Medical 


Assistance.  ] — The  law  imposes  upon  relieving 
officers  the  duty  and  obligation,  in  cases  where 
bona  fide  applications  are  made  to  them  for 
medical  assistance  by  destitute  persons  in  cases 
of  sudden  and  urgent  necessity,  to  give  such 
assistance  promptly,  so  that  the  mischief  may  be 
dealt  with  at  an  early  stage.  Where  an  applica- 
tion is  made  to  a  relieving  officer  for  medical 
assistance  in  a  case  of  emergency,  and  death  or 
bodily  harm  results  from  a  refusal  to  grant  such 
assistance,  it  is  no  answer  to  an  indictment 
against  the  relieving  officer  for  manslaughter  or 
for  causing  bodily  harm  that  the  applicant  was 
in  employment  for  wages  or  other  hire  or 
remuneration,  if  at  the  time  the  application  was 
made  the  applicant  was,  in  fact,  destitute  of  the 
means  of  providing  independent  medical  assist- 
ance. Reg.  v.  Curtis,  15  Cox,  C.  C.  746 — 
Hawkins,  J. 


Evidence  of  other  Deaths  with  same  Symptom 
— Accident  or  Design.] — F.  and  H.  were  jointly 
charged  upon  an  indictment  for  the  murder  of 
the  husband  of  H.,  with  causing  his  death  by  the 
administration  of  arsenic.  Evidence  having  been 
given  that  the  deceased  had  died  from  arsenic, 
and  had  been  attended  by  the  prisoners  -.—Held, 
that   it   was    competent   for   the  prosecution 
to  tender  evidence  of  other  cases  of  personi 
who  had  died  from  arsenic,  and  to  whom  the 
prisoners  had  access,  exhibiting  exactly  similar 
symptoms  before  death  to  those  of  the  case  under 
consideration,  for  the  purpose  of  showing  that 
this  particular  death  arose  from  arsenical  poison* 
ing — not  accidentally  taken,  but  designedly  ad- 
ministered by  someone.    Such  evidence,  however, 
is  not  admissible  for  the  purpose  of  establishing 
motives ;  though  the  fact  that  the  evidence  offered 
may  tend  indirectly  to  that  end  is  no  ground  for 
its  exclusion.    The  true  principle  on  which  the 
admissibility  of  all  such  evidence  rests  is  that 
laid  down  in  Reg.  v.  Qeering  (18  L.  J.,  M.  C. 
215).    Reg.  v.  Winslow  (8  Cox,  C.  C.  397)  com- 
mented on  and  disapproved.    Reg.  v.  Flannaga*, 
16  Cox,  C.  C.  403— Butt,  J. 


X>.    Oflenoee  against  Women  and  Children, 

Rape— Consent  obtained  by  Fraud.]— Where* 
married  woman  consented  to  the  prisoner  having 
connexion  with  her  under  the  impression  that  he 
was  her  husband  : — Held,  that  the  prisoner  was 
guilty  of  rape.  Reg.  v.  Barrow  (1  L.  R.,  C.  ft 
1 56)  not  followed.  Reg.  v.  Dee,  1 4  L.  R,  Ir.  468 ; 
16  Cox,  C.  C.  579— C.  C.  R.  And  see  now  48*49 
Vict  c.  69,  s.  4. 


Attempt  to  Commit— Evidence  of  pre- 


vious Connexion.] — On  the  trial  of  an  indict- 
ment charging  an  assault  with  intent  to  rape,  if 
the  prosecutrix,  in  answer  to  cross-examination, 
denies  having  voluntarily  had  connexion  with 
the  prisoner  prior  to  the  alleged  assault,  evidence 
to  contradict  her  by  proving  such  prior  con- 
nexion is  admissible  on  his  behalf.  Reg.  v.  Riley, 
18  Q.  B.  D.  481  ;  56  L.  J.,  M.  C.  62  ;  66  L  T. 
371  ;  35  W.  R.  382  ;  16  Cox,  C.  C.  191— C.  C.  R. 

Abduction  of  Child— Evidence.] —The  pri- 
soner, being  indicted  under  the  24  &  26  Vict 
c.  100,  s.  56,  for  that  she  did,  feloniously  and 
unlawfully,  by  fraud,  detain  a  child,  under  the 
age  of  fourteen,  with  intent  to  deprive  the  mother 
of  the  possession  of  her — the  evidence  being  that 
the  child  had  been  in  the  service  of  the  prisoner, 
and  was  missing  and  could  not  be  discovered ; 
and  that  she  gave  different  accounts  of  what  had 
become  of  the  child,  but  implying  that  the  pri- 
soner had  given  her  up  to  some  third  persons ; 
and  there  being  no  evidence  that  the  child  was 
still  in  her  actual  custody,  nor,  indeed,  any  evi- 
dence where  she  was : — Held,  that  upon  the 
principle  of  Jones  v.  Dowle  (9  M.  &  W.  19),  the 

Erisoner  was  rightly  convicted ;  because,  whether 
er  stories  were  all  utterly  false,  and  the  child 
was  secreted  by  herself,  or  whether  they  were  so 
far  true,  and  the  child  was  in  the  actual  custody 
of  some  third  parties,  to  whom  she  had  wrong- 
fully delivered  her,  it  was  equally  true  that  she 
unlawfully  detained  the  child  by  fraud.  Beg. 
v.  Johnson,  60  L.  T.  759 ;  48  J.  P.  769  ;  15  Cox, 
C.  C.  481— C.  C.  R. 


581 


CRIMINAL    LAW—  Offences. 


582 


AMwtion  of  Girli  under  Eighteen— "Taking 
«r  causing  to  be  taken."]  —  Where  a  girl, 
under  the  age  of  eighteen,  has  not  been  taken 
igiiost  her  will  out  of  the  possession  of  her 
father  or  mother,  or  of  the  person  having 
the  lawful  care  or  charge  of  her.  it  is  necessary, 
in  order  to  convict  a  person  charged  with  an 
offence  under  &  7  of  the  Criminal  Law  Amend- 
ment Act,  1886  (48  and  49  Vict.  c.  69),  in  respect 
of  such  girl,  to  prove  that  the  girl  left  such 
possession  in  consequence  of  persuasions,  induce- 
ments, or  blandishments  held  out  to  her  by  the 
prisoner.  Reg.  v.  Henker*,  16  Cox,  C.  C.  257 — 
Oam.  Serj. 

—  Knowledge  of  Prisoner.]— Where  a  per- 
son is  charged  with  abducting  a  girl  under 
eighteen,  it  is  a  sufficient  defence  if  at  the  moment 
of  taking  her  out  of  lawful  custody  he  had  reason- 
able cause  to  believe  that  she  was  ot  the  age  of 
eighteen,  though  he  did  not  inquire  as  to  her  age 
rati]  after  he  had  taken  her  out  of  such  lawful 
engtody,  but  before  abduction  was  complete. 
Ay.  v.  Packer,  16  Cox,  C.  C.  57— Pollock,  B. 

—  Possession  of  Father.}— It  is  a  question 
for  the  jury  whether  at  the  time  of  the  alleged 
abduction  the  girl  was  in  the  possession  of  her 
hither.  Reg.  v.  Mace,  50  J.  P.  776— Grant- 
ham. J. 

Upon  an  indictment  under  48  &  49  Vict.  c.  69, 
*-  7.  for  taking  or  causing  to  be  taken  a  girl  out 
of  the  possession  of  her  father,  it  was  proved 
that  at  the  time  the  alleged  offence  was  com- 
mitted the  girl  was  employed  as  a  barmaid  at  a 
distance  from  her  father's  house  : — Held,  that 
the  was  under  the  lawful  charge  of  her  employer, 
tod  not  in  the  possession  of  her  father,  and  that, 
therefore,  the  prisoner  could  not  be  convicted  of 
the  offence  with  which  he  was  charged.  Reg.  v. 
Benkert,  supra. 

Unlawful  Intercourse  with  Girl  under  Four- 
tem— Evidence  of  Prisoner  on  OathJ— A  pri- 
soner was  charged  under  48  and  49  Vict.  c.  69, 
s.  5,  with  having  had  unlawful  intercourse  with 

*  girl  under  the  age  of  fourteen.  When  before 
the  justices,  he  gave  evidence  on  oath  :— Held, 
that  at  the  trial  his  statement,  as  made  on  oath, 
might  be  put  in  without  his  consent,  and  might 
he  used  for  or  against  him  ;  and  that  on  the 
charge  above  mentioned,  the  prisoner  might  be 
found  guilty  of  an  attempt  to  commit  the  offence, 
the  case  being  within  the  provisions  of  the  14 

*  15  Vict  c.  100,  a.  9.  Reg.  v.  Adam*,  50  J.  P. 
JM— Stephen,  J. 

Indictment  for  carnally  knowing  Girl  under 
thirteen— Unsworn  Evidence — Conviction  for 
Indecent  Assault.  1 — The  prisoner  was  indicted 
■odor  the  Criminal  Law  Amendment  Act,  1885 
(48  and  49  Vict.  c.  69),  s.  4,  for  unlawfully  and 
carnally  knowing  a  girl  under  the  age  of  thirteen 
jean.  The  child,  not  understanding  the  nature 
of  an  oath,  gave  her  evidence  under  the  above 
•eetion  without  being  sworn.  The  j  ury  acquitted 
the  prisoner  of  the  charge  under  s.  4,  but,  by 
virtue  of  the  power  given  to  them  in  s.  9,  found 
him  guilty  of  an  indecent  assault.  Apart  from 
the  girl's  testimony  the  evidence  was  insufficient 
to  support  the  conviction.  The  act  contains  no 
provision  rendering  unsworn  evidence  admissible 
on  an  indictment  for  indecent  assault : — Held, 
that  the  conviction  was  right.    Beg.  v.  Wealand , 


20  Q.  B.  D.  827 ;  57  L.  J.,  M.  C.  44  ;  58  L.  T.  782  ; 
36  W.  R.  576  ;  52  J.  P.  582— C.  C.  R. 

Indictment  for  Indecent  Assault  and  Common 
Assault — Evidence  of  Prisoner — Conviction  for 
Common  Assault  only.]  —  The  Criminal  Law 
Amendment  Act,  1885  (48  &  49  Vict.  c.  69), 
s.  20,  renders  a  person  charged  with  an  indecent 
assault  a  competent  witness  on  the  hearing  of 
such  charge,  but  does  not  apply  to  a  charge  of 
common  assault  The  prisoner  was  tried  on  an 
indictment  containing  two  counts,  one  for  an 
indecent  assault,  and  another  for  a  common 
assault,  and,  on  the  hearing,  gave  evidence  on 
oath  in  his  defence.  He  was  acquitted  of  the 
charge  of  indecent  assault,  but  convicted  of  the 
common  assault : — Held,  that  his  evidence  being 
legally  admissible,  the  conviction  was  right. 
Reg.  v.  Owen,  20  Q.  B.  D.  829 ;  57  L.  J.,  M.  C. 
46  ;  58  L.  T.  780 ;  36  W.  R.  575  ;  52  J.  P.  582  ; 
16  Cox,  C.  C.  397— C.  C.  R. 

Suffering  Girl  under  Sixteen  to  be  on  Pre- 
mises for  Purpose  of  being  carnally  known.  J— 

The  prisoner  was  convicted  under  the  6th  section 
of  the  Criminal  Law  Amendment  Act,  1885,  of 
knowingly  suffering  a  girl  under  sixteen  to  be 
on  premises  for  the  purpose  mentioned  in  that 
section.  The  girl  in  question  was  the  prisoner's 
daughter,  and  the  premises  in  respect  of  which 
the  charge  was  made  were  her  home  where  she 
resided  with  the  prisoner  :— Held,  that,  notwith- 
standing the  above-mentioned  circumstances, 
the  conviction  was  good.  Reg.  v.  Webster,  16 
Q.  B.  D.  134  ;  55  L.  J.,  M.  C.  63  ;  63  L.  T.  824  ; 
34  W.  R.  324 ;  50  J.  P.  456 ;  15  Cox,  C.  C.  775— 
C.  C.  R. 

c.  Anemulta  and  Wounding. 


i— Blow  aimed  at  one  Person  accident- 
ally wounding  another.] — The  prisoner,  in 
striking  at  a  man,  struck  and  wounded  a  woman 
beside  him.  At  the  trial  of  an  indictment 
against  the  prisoner  under  24  &  25  Vict.  c.  100, 
s.  20,  for  unlawfully  and  maliciously  wounding 
her,  the  jury  found  that  the  blow  was  unlawful 
and  malicious,  and  did,  in  fact,  wound  her,  but 
that  the  striking  of  her  was  purely  accidental, 
and  not  such  a  consequence  of  the  blow  as  the 
prisoner  ought  to  have  expected.  The  prisoner 
was  convicted : — Held  (distinguishing  Reg.  v. 
Pembliton,2  L.  R.,  C. C.  119), that  the  conviction 
was  right.  Reg.  v.  Latimer,  17  Q.  B.  D.  359  ; 
55  L.  J.,  M.  C.  135  ;  54  L.  T.  768  ;  51  J.  P.  184  ; 
16  Cox,  C.  C.  70— C.  C.  R. 

Assault — Communication  of  Disease.]  —  The 
prisoner,  knowing  that  he  was  suffering  from 
gonorrhoea,  communicated  the  disease  to  his 
wife.  He  was  convicted  of  "unlawfully  and 
maliciously  inflicting  grievous  bodily  harm" 
and  of  an  "assault  occasioning  actual  bodily 
harm  "  : — Held,  by  a  majority  of  the  court,  that 
the  conviction  was  wrong.  Reg.  v.  Clarence,  22 
Q.  B.  D.  23  ;  58  L.  J.,  M.  C.  10 ;  59  L.  T.  780  ; 
37  W.  R.  166  ;  53  J.  P.  149  ;  16  Cox,  C.  C.  611— 
C.  C.  R. 


On  County  Court  Bailiff!]— See  County 


Coubt  (Officers). 

Jurisdiction  of  Magistrate— Claim  of  Sight.] 
— A  person  making  a  bona  fide  claim  of  right  to 

U  2 


583 


CRIMINAL    LAW— Offences. 


584 


be  present  as  one  of  the  public  in  a  law  court  at 
the  hearing  of  a  suit,  is  not  justified  in  com- 
mitting an  assault  upon  a  police  constable  and 
an  official  who  endeavour  to  remove  him.  Such 
a  claim  of  right  does  not  oust  the  jurisdiction  of 
the  magistrate  who  has  to  try  the  charge  of 
assault,  and  he  may  refuse  to  allow  cross- 
examination  and  to  admit  evidence  in  respect  of 
such  a  claim.  Reg.  v.  Ear d ley,  49  J.  P.  551 — 
D. 

Complaint  by  Party  aggrieved.]— A  court 

of  summary  jurisdiction  has  no  power  to  convict 
of  a  common  assault  unless  the  party  aggrieved, 
or  some  one  on  his  behalf,  complains  of  the 
assault,  with  a  view  to  the  adjudication  of  the 
court  upon  it.  NiehoUonv.  Booth,  57  L.  J.,  M.  C. 
43  ;  68  L.  T.  187 ;  52  J.  P.  662 ;  16  Cox,  C.  C. 
373— D. 

d.   Ill-treatment  of  Lunatics. 

By  Parent— Person  "  haying  the  Care  or 
Charge"  ot]— The  parents  of  a  lunatic,  who 
resides  with  them  under  their  care,  are  persons 
"  having  the  care  or  charge  "  of  a  lunatic  within 
the  meaning  of  16  &  17  Vict,  c  96,  s.  9,  and  may 
be  convicted  under  that  section  for  ill-treating 
such  lunatic.  Reg.  v.  Rundle  (1  Dear.  &  Pearce, 
482)  questioned.  Buchanan  v.  Hardy,  18  Q.  B.  D. 
486  ;  66  L.  J.,  M.  C.  42 ;  35  W.  R.  453  ;  51  J.  P. 
741  -D. 


21.  OBSCENITY  AND  INDECENCY. 

Indecent   Exposure  —  Public  Place.]  —  The 

Erisoner  was  convicted  of  indecently  exposing 
is  person  to  divers  subjects  of  the  Queen  in  a 
certain  public  place.  Upon  evidence  showing 
that  the  place  in  question  was  out  of  sight  of  the 
public  footpath,  but  was  a  place  to  which  the 
prisoner  had  gone  with  several  little  girls,  though 
without  any  legal  right  to  go  there,  and  was  a 
place  to  which  persons  were  in  the  habit  of  going 
without  having  any  strict  legal  right  so  to  do, 
and  that  persons  so  going  were  never  in  any  way 
hindered  or  interfered  with  : — Held,  that  the 
conviction  was  correct,  and  that  the  jury  were 
justified  in  finding  that  the  place  was  public. 
Reg.  v.  Wellard,  14  Q.  B.D.  63  ;  54  L.  J.,  M.  C. 

14  ;  51  L.  T.  604 ;  33  W.  R.  156  ;  49  J.  P.  296  ; 

15  Cox,  C.  C.  569— C.  C.  R. 

Semble,  that  the  offence  may  be  indictable  if 
committed  before  divers  subjects  of  the  realm, 
even  if  the  place  be  not  public,    lb. 


22.  PERJURY. 

Examination  before  Court  of  Bankruptcy — 
Pretenoe  of  Judge  or  Registrar.  1 — The  prisoner 
was  convicted  of  perjury  alleged  to  have  been 
committed  in  an  examination  by  "  the  court " 
under  s.  27  of  the  Bankruptcy  Act,  1883.  It 
appeared  that  he  was  summoned  under  s.  27 
before  a  county  court  having  jurisdiction  in 
bankruptcy.  The  oath  was  administered  to  the 
prisoner  in  court  by  the  registrar.  The  registrar 
remained  in  court.  The  examination  of  the 
prisoner,  in  the  course  of  which  the  answers  in 
question  were  given,  took  place  in  a  room  used 
for  examinations  in  the  absence  of  the  registrar : 
— Held,  that  there  had  been  no  valid  examina- 


tion by  "the  court"  within  s.  27,  and  that  the 
conviction  must  be  quashed.  Reg.  v.  Lloyd,  19 
Q.  B.  D.  213  ;  56  L.  J.,  M.  C.  119 ;  56  L.  T.  750 ; 
35  W.  R.  653  ;  52  J.  P.  86 ;  16  Cox.  C.  C.  23&- 
C.  C.  R. 

Evidence  true  as  to  one  Oeeasion  attributed 
to  another  Oeeasion — Sufficiency  of  Indictment] 
— H.,  an  inspector  of  nuisances  for  the  borough 
of  S.,  was  convicted  of  perjury  on  an  indictment 
which  alleged  that,  upon  the  hearing  of  an  infor- 
mation against  6.  for  exposing  for  sale  a  number 
of  rabbits  which  were  unfit  for  the  food  of  man, 
contrary  to  the  Public  Health  Act,  1875,  it  was 
a  material  question  whether  H.  had  duly  in- 
spected and  examined  the  carcases  of  the  rabbits, 
and  whether  such  carcases  had  appeared  to  him 
to  be  unfit  for  the  food  of  man  before  and  at  the 
time  when  he  seized  the  same  under  the  provi- 
sions of  the  Public  Health  Act.  The  indictment 
then  alleged  that  H.  falsely  swore  (amongst 
other  things)  that  he  had  examined  critically 
every  rabbit,  and  set  out  the  evidence  giving  the 
details  of  such  examination ;  and  further  alleged 
that  H.  did  not  in  truth  examine  the  rabbits  in 
the  manner  sworn.  It  appeared  that  upon  two 
occasions  subsequently  to  the  time  of  seizure, 
when  he  had  merely  made  a  cursory  examination, 
sufficient,  however,  to  entitle  him  to  seize  the 
rabbits,  he  had  examined  them  as  he  had  sworn 
he  had.  It  also  appeared  that,  at  the  time  of 
the  seizure,  the  rabbits  were,  in  fact,  unfit  for 
the  food  of  man  : — Held,  that,  as  the  indictment 
did  not  allege  that  the  evidence  was  given  with 
reference  to  the  time  of  seizure,  and  since  the 
evidence,  if  taken  with  reference  to  the  other 
occasions  upon  which  examinations  were  made, 
was  perfectly  true,  all  the  allegations  might  be 
true  without  H.  having  sworn  falsely,  and  that, 
therefore,  no  offence  was  disclosed  upon  the 
indictment.  Reg.  v.  Had  field,  55  L.  T.  783  ;  51 
J.  P.  344  ;  16  Cox,  C.  C.  148— C.  C.  R. 

Proof  of  Proceedings  —  Non-production  of 
Record.] — On  the  trial  of  a  prisoner  for  perjury, 
the  indictment  preferred  at  the  trial  at  which 
the  alleged  perjury  was  committed  is  not  suffi- 
cient proof  of  the  proceedings  in  that  conrt  ; 
there  must  be  either  the  record  of  the  trial, 
or  a  certificate  of  it  under  14  &  15  Vict.  c.  100, 
s.  22.  Reg.  v.  Cole*,  16  Cox,  C.  C.  165— 
Stephen,  J. 


23.    PROPERTY,  OFFENCES  AS  TO. 

Malicious  Damage — Playing  Football.]— In- 
playing  football,  £.  trespassed  on  a  grass  field, 
and  the  justices  convicted  him  of  unlawfully  and 
maliciously  doing  damage,  with  intent  to  destroy 
grass  for  the  food  of  beasts : — Held,  that  the 
conviction  was  wrong,  for  neither  24  &  25  Vict, 
c.  97,  s.  24,  nor  s.  52  applied  to  damage  which 
was  only  nominal,  and  not  done  with  intent  to 
damage.     Eley  v.  Lytle,  60  J.  P.  308— D. 


Mushrooms  growing  in  a  Wild  State.] 


— In  order  to  constitute  the  offence  of  wilfully 
or  maliciously  committing  damage,  injury,  or 
spoil  to  or  upon  any  real  property  under  a.  52  of 
the  Malicious  Injury  to  Property  Act*  1861,  there 
must  be  proof  of  actual  damage  to  the  realty 
itself,  and  mere  damage  to  uncultivated  roots  or 
plants  growing  upon  the  realty  is  insufficient  to- 


585 


CRIMINAL    LAW— Offences. 


586 


justify  a  conviction. — The  respondent  gathered  j 
mushrooms  in  a  field  belonging  to  the  appellant.  | 
They  were  of  value  to  the  latter,  but  they  grew 
ipantaneously,  and  were  entirely  uncultivated. 
No  damage  was  done  by  the  respondent  to  the 
grass  or  the  hedges : — Held,  that,  upon  the  above 
facta,  the  respondent  had  not  been  guilty  of  an 
offence  within  s.  52  of  the  act.  Gardner  v. 
Maubridge,  19  Q.  B.  D.  217  ;  57  L.  T.  265  ;  35 
W.  B.  809 ;  51  J.  P.  612  ;  16  Cox,  C.  C.  281— D. 

—  Overhanging  Tree — Cutting   off  Blos- 

«■.]— R's  chestnut  tree  overhung  his  land,  and 
alio  part  of  the  highway  immediately  in  front  of 
h7s  grounds,  and  boys  threw  stones  at  the  blos- 
soms, which  broke  H.'s  windows : — Held,  that 
H.  was  properly  convicted,  under  24  &  25  Vict, 
c  97,  a.  52,  for  wilfully  damaging  B/s  tree  by 
cutting  off  the  blossoms  at  the  top  of  the  tree, 
and  that  H.  showed  no  claim  of  right  or  other 
legal  defence  for  the  trespass.  Hamilton  v.  Bane, 
52  J.  P.  726—  D. 

Ceaipiracy  and  Protection  of  Property.] — 
in  intimation  conveyed  in  a  letter  to  an  em- 
ployer that  his  shop  would  be  picketed,  in  lan- 
guage so  threatening  as  "  to  make  such  employer 
afraid,"  amounts  to  "  intimidation  "  within  the 
meaning  of  s.  7,  sub-s.  1,  of  the  Conspiracy  and 
Protection  of  Property  Act,  1875  ;  wnether  the 
picketing  amounts  to  an  unlawful  watching  or 
besetting  within  sub-s.  4  or  not.  Judge  v.  Ben- 
vtt,  36  W.  R.  103 ;  52  J.  P.  257— D. 


24.     RAILWAYS. 
Trespassing  oil] — See  Railway. 

26.  RAPE  AND  OFFENCES  AGAINST 
WOMEN  AND  CHILDREN.— See  supra, 
20,*. 

*.    SANITARY  LAWS.— See  Health. 

27.     SEDITION. 

Seditions  Libel— Intent — Question  for  Jury.] 
—An  intention  to  excite  ill-will  between  different 
classes  of  her  Majesty's  subjects  may  be  a  sedi- 
tious intention  ;  whether  or  not  it  is  so  in  any 
particular  case,  must  be  decided  upon  by  the 
piy  after  taking  into  consideration  all  the  cir- 
esmstances  of  the  case.  Sedition  embraces 
everything,  whether  by  word,  deed,  or  writing, 
vfcich  is  calculated  to  disturb  the  tranquillity  of 
the  state,  and  lead  ignorant  persons  to  endeavour 
to  subvert  the  government  and  laws  of  the 
raphe,  Reg.  t.  Burnt.  16  Cox,  C.  C.  355— 
Cave,  J. 

lateral  Consequences  of  Words  Spoken — 
Asriiting  at  Meeting.] — Where  in  a  prosecution 
&r  uttering  seditions  words  with  intent  to  incite 
to  riot,  it  is  proved  that  previously  to  the  hap- 
peaing  of  a  riot  seditious  words  were  spoken,  it 
ft  a  question  for  the  jury  whether  or  not  such 
noting  was  directly  or  indirectly  attributable  to 
the  seditious  words  proved  to  have  been  spoken. 
A  meeting  lawfully  convened  may  become  an 
nuawfol  meeting  if  during  its  course  seditious 


words  are  spoken  of  such  a  nature  as  to  produce 
a  breach  of  the  peace.  And  those  who  do  any- 
thing to  assist  the  speakers  in  producing  upon 
the  audience  the  natural  effect  of  their  words 
will  be  guilty  of  uttering  seditious  words  as  well 
as  those  who  spoke  the  words.     lb. 


28.    TREASON-FELONY. 

Purpose  of  Instrument — Evidence — Burden 
of  Proof] — D.  and  others  were  charged  under 
the  Treason-Felony  Act,  11  &  12  Vict.  c.  12, 
8.  3,  with  being  in  the  possession  of  certain  in- 
struments and  explosive  materials,  with  intent 
to  use  them  for  the  purpose  of  carrying  out  the 
objects  of  certain  treasonable  combinations  exist- 
ing in  the  United  Kingdom  and  abroad  : — Held, 
that,  for  the  purpose  of  showing  such  intent, 
evidence  might  be  given  showing  that  the  only 
known  use  hitherto  made  of  such  instruments 
and  explosive  compounds  had  been  in  causing 
destructive  explosions  to  property  ;  and*  that  the 
fact  of  some  of  those  explosions  having  happened 
out  of  the  jurisdiction  of  the  court  did  not  affect 
the  admissibility  of  the  evidence.  Reg.  v.  Deary* 
15  Cox,  C.  C.  334— Stephen,  J. 

Held,  also,  that  for  the  purpose  of  showing  a 
treasonable  object,  evidence  might  be  given  of 
the  existence,  down  to  a  period  nearly  approach- 
ing the  date  of  the  alleged  acts,  in  the  country 
from  which  the  explosives  and  instruments  were 
brought,  of  a  treasonable  conspiracy  having  for 
its  object  the  alteration  of  the  existing  form  of 
government  by  violent  means,  although  such 
evidence  did  not  establish  that  the  prisoners  were 
members  of,  or  directly  connected  with,  such 
conspiracy.  Though  the  general  rule  is  that  the 
prosecution  must  make  out  intent,  there  may  be 
circumstances  under  which  the  burden  of  proof 
is  shifted  to  the  other  side.    lb. 


29.    UNLAWFUL  ASSEMBLY. 

What  is.] — See   0" Kelly  v.  Harvey,  sub  tit. 
Justice  of  the  Peace. 


30.    VAGRANTS  AND  VAGRANCY.— 
See  VAOBANT. 


III.    JURISDICTION,  PRACTICE  AND 
PROCEDURE. 

1.  JURISDICTION. 

Commissions  of  General  Gaol  Delivery.] — The 

general  authority  given  by  the  commission  of 
general  gaol  delivery  to  justices  of  assize  to 
deliver  the  gaols  of  all  manner  of  prisoners  found 
therein,  confers  no  jurisdiction  over  prisoners 
directed  by  statute  to  be  dealt  with  by  the  court 
of  general  or  quarter  sessions,  though  found 
within  the  prison  of  the  county.  A  commitment, 
therefore,  of  such  a  prisoner  to  the  assizes  will 
be  bad,  and  will  entitle  the  prisoner  to  his  dis- 
charge from  custody.  The  effect  of  the  Home 
Office  Circular  of  March,  1883,  on  the  form  of 
commitments.  Reg.  v.  Ward,  15  Cox,  C.  C.  321— 
West,  Q.C.,  Commissioner. 


1 


587         CRIMINAL    LAW — Jurisdiction,  Practice,  and  Procedure.       588 


Second  Arrest  on  Same  Charge — Bee  judicata.] 
— L.  was  charged  with  night  poaching  under  9 
Geo.  4,  c  69,  and  in  course  of  cross-examination 
of  prosecutor's  witnesses,  the  justices  considered 
he  had  been  illegally  arrested,  and  discharged 
him.  L.  was  again  summoned  for  the  same 
offence  on  the  same  facts,  when  the  justices  held 
that  they  had  no  jurisdiction,  as  the  former  dis- 
charge was  res  judicata  : — Held,  that  the  justices 
were  right.  Reg.  v.  Brahmridge,  48  J.  P.  293 
— D. 


Central  Criminal  Court — Mandamus.] — Man- 
damus will  not  lie  to  the  judges  and  justices  of 
the  Central  Criminal  Court.  The  recorder  of 
London,  upon  the  trial  and  conviction  of  a  pri- 
soner charged  with  larceny,  having  refused  to 
order  (under  24  &  25  Vict,  c  96,  s.  100)  the  per- 
son with  whom  stolen  property  was  pledged  to 
restore  it  to  the  prosecutor,  the  Queen's  Bench 
Division  refused  to  grant  a  mandamus  directed 
to  "the  judges  and  justices  of  the  Central 
Criminal  Court,"  to  compel  the  recorder  to  make 
such  order.  Reg.  v.  Central  Criminal  Court  JJ., 
11  Q.  B.  D.  479  ;  52  L.  J.,  M.  0. 121  ;  15  Cox,  C.  C. 
325— D. 


2.  INDICTMENT. 

"  Against  the  form  of  the  Statute  " — Omission 
—Corporation.] — An  indictment  against  a  corpo- 
ration, which  in  the  absence  of  a  statute  would 
not  be  liable  to  be  indicted,  for  non-repair  of  a 
highway,  is  bad  unless  it  concludes  "against  the 
form  of  the  statute,"  and  the  objection  is  fatal 
even  after  verdict  Reg.  v.  Poole  (MayorY  19 
Q.  B.  D.  602,  683  ;  56  L.  J.,  M.  C.  131 ;  57  L.  T. 
486  ;  36  W.  R.  239 ;  52  J.  P.  84  ;  16  Cox,  C.  C. 
323— D. 


Election  Law — Corrupt  Practice — Description 
of  Offence — Aider  by  Verdict.] — The  prisoner  was 
tried  and  convicted  upon  an  indictment  which 
alleged  that  at  an  election  for  members  of  par- 
liament for  the  borough  of  Ipswich,  holden  on 
25th  of  November,  1885,  he  was  guilty  of  corrupt 
practices  against  the  form  of  the  statute  in  that 
case  made  and  provided.  It  was  proved  at  the 
trial  that  he  had  promised  money  to  two  voters 
to  induce  them  to  vote.  After  verdict  the  objec- 
tion was  taken  by  the  prisoner's  counsel  that  the 
indictment  was  bad,  because  it  did  not  suffi- 
ciently describe  the  nature  of  the  offence  with 
which  the  prisoner  was  charged : — Held  (by  Lord 
Coleridge,  C.J.,  and  Field  and  Mathew,  JJ., 
Denman  and  Day,  JJ.,  dissenting),  that,  if  the 
indictment  were  defective,  the  defect  was  cured 
after  verdict.  By  Lord  Coleridge,  C.J.,  and 
Denman,  Mathew  and  Day,  JJ.,  the  indictment 
was  defective,  and  on  application  before  verdict 
might  have  been  quashed.  By  Denman  and 
Day,  JJ.,  the  defect  in  the  indictment  was  not 
cured  after  verdict.  By  Field,  J.,  semble,  the 
indictment  was  good  by  virtue  of  26  &  27  Vict, 
c.  29,  s.  6,  and  46  &  47  Vict,  c  51,  s.  53.  Reg.  v. 
Stroulger,  17  Q.  B.  D.  327  ;  55  L.  J.,  M.  C.  137  ; 
56  L.  T.  122 ;  34  W.  R.  719  ;  51  J.  P.  278  ;  16 
Cox,  C.  C.  85— C.  C.  R. 

An  indictment  under  the  Corrupt  Practices 
Act,  1883,  which  merely  charges  the  defendant 
with  being  guilty  of  a  corrupt  practice  at  an 
election,  but  does  not  specifically  allege  against 


him  what  that  corrupt  practice  was,  is  bad  for 

?enerality.    Reg.  v.  Norton,  16  Cox,  C.  C.  59— 
ollock,  B. 

3.  EVIDENCE. 

Production  of  fresh  Evidence— Efiwt  of]- 
The  production  of  fresh  evidence  on  behalf  of 
the  prosecution  (not  known  or  forthcoming  at 
the  preliminary  investigation,  and  not,  pre- 
viously to  the  trial,  communicated  to  the  other 
side)  may  be  ground  for  a  postponement  of  the 
trial,  if  it  appears  necessary  to  justice.  Reg.  v. 
Flannagan,  15  Cox,  C.  C.  403 — Butt,  J. 

Confessions — Inducement.] — The  prisoners  E 
and  C.  were  taken  into  their  master's  (the 
prosecutor)  room,  where  there  were  two  police- 
men. The  prosecutor  said, "  I  presume  yon  know 
who  these  gentlemen  are?"  H.  said,  "Yes." 
The  prosecutor  then  said  to  H.,  "  I  know  whit 
has  been  going  on  between  you  and  C.  for  some 
time  ;  you  had  better  speak  the  truth."  H.then 
made  a  confession  :— Held,  that  the  confessioo 
was  not  admissible  in  evidence.  Rrg.  v.  2fo#J, 
49  L.  T.  780  ;  48  J.  P.  248— C.  C.  R. 

A  confession  made  by  a  prisoner  at  the  request 
of  his  uncle  in  the  audience  of,  and  according  to 
the  advice  of  a  police  sergeant,  is  not  admissible 
in  evidence.  Reg.  v.  Jones,  49  J.  P.  728— 
Manisty,  J. 

Depositions,  Admissibility  of.]— A  deposition 
taken  under  11  &  12  Vict.  c.  42,  s.  17,  wis 
admitted  in  evidence,  though  it  appeared  that 
the  proceedings  had  been  conducted  in  the 
English  language,  and  that  the  prisoner  and  the 
deceased  understood  English  imperfectly.    I*. 

Notice  of  Intention  to  take.]— The  6th 

section  of  the  30  &  31  Vict.  c.  35,  provides  in 
cases  of  indictable  offences  for  the  taking  of  the 
statements  on  oath  or  affirmation  of  persons 
dangerously  ill  and  not  likely  to  recover,  and 
for  the  reading  of  the  same  in  evidence  under 
certain  circumstances,  "provided  it  be  proTed 
to  the  satisfaction  of  the  court  (inter  alia)  that 
seasonable  notice  of  the  intention  to  take  such 
statement  has   been   served    upon  the  person 
(whether  prosecutor  or  accused)  against  whom 
it  is  proposed  to  be  read  in  evidence :— Held 
(Day,  J.,  dissenting),  that  the  notice  intended 
by  the  section  is  a  notice  in  writing,  and  that 
such  a  statement  was  inadmissible  against  a 
prisoner  where  he  had  only  had  oral  notice  of 
the  intention  to  take  the  same,  although  he  was 
present  when  the  statement  was  made.    Beg.  ▼• 
Shurmer,  17  Q.  B.  D.  323  ;  55  L.  J.,  M.  C.  163 ; 
55  L.  T.  126  ;   34  W.  R.  656 ;    50  J.  P.  74*- 
C.  C.  R. 

Statement  of  Witness  too  young  to  he 

Sworn.] — On  a  charge  preferred  under  s.  4  of 
the  Criminal  Law  Amendment  Act,  1885,  for 
carnally  knowing  a  girl  under  the  age  of  thir- 
teen years,  the  magistrates  before  whom  the 
preliminary  investigation  took  place,  being  of 
opinion  that  the  prosecutrix  did  not  understand 
the  nature  of  an  oath,  received  as  evidence  her 
unsworn  statement  (as  provided  for  by  the  4th 
section  of  the  act),  and  signed  and  returned  her 
statement  so  made',  with  the  depositions,  to  the 
assizes.  At  the  trial  it  was  proposed,  after 
proving  that  the  prosecutrix  was  so  ill  as  to  be 


689       CRIMINAL    LAW — Jurisdiction,  Practice,  and  Procedure.         590 


suable  to  towel  or  to  attend  to  give  evidence  at 
the  assizes,  to  tender  in  evidence  her  statement 
»  made  before  the  magistrates,  as  being  a  depo- 
sition within  the  meaning  of  s.  17  of  the  11  &  12 
Vict,  c  42 :— Held,  that  s.  17  of  the  11  &  12  Vict, 
c  42,  only  applies  to  depositions  taken  upon  oath 
or  affirmation,  and  that,  although  a  false  state- 
ment made  under  the  circumstances  of  this  case 
might  subject  the  prosecutrix  to  a  prosecution 
for  perjury  (as  provided  for  by  s.  '4  of  the 
Criminal  Law  Amendment  Act,  1885),  it  was 
not  t  deposition  "  taken  as  aforesaid,"— i.e.,  on 
otth  or  affirmation  within  the  meaning  of  s.  17 
of  the  11  &  12  Vict.  c.  42— so  as  to  render  it 
•dmisrible  as  evidence  in  the  absence  of  the 
prosecutrix.  Reg.  v.  Print  ey,  16  Cox,  C.  C.  344 
-Cave,  J. 

Dying  Declaration — Consciousness  of  impend- 
ing Death.]— The  deceased,  shortly  after  the 
woand  bad  been  given  which  caused  her  death, 
nude  a  statement,  in  the  prisoner's  absence,  as 
to  the  cause  of  her  injuries.  She  was  in  fact 
dying  at  the  time  she  made  the  statement.  Two 
witnesses  swore  she  was  conscious  at  the  time. 
The  doctor,  who  arrived  before  she  made  the 
statement,  swore  that  she  was  unconscious  from 
the  moment  of  his  arrival,  but  that  there  might 
hare  been  intervals  of  consciousness  before  death. 
The  statement  was  made  during  the  doctor's 
sbsence  from  the  room  :— Held,  that  the  state- 
ment was  not  admissible  in  evidence  as  a  dying 
declaration,  as  it  was  uncertain  whether  the 
deceased  was  conscious  of  impending  death  or 
in  fact  conscious  at  all,  at  the  time  she  made  the 
statement.  Reg.  t.  Smith,  16  Cox,  C.C.  170— 
Hawkins,  J. 

Informal.] — A  deposition  had  been  made 

by  a  deceased  person  in  the  presence  of  a  justice 
and  the  prisoner,  and  in  expectation  of  death. 
It  appeared  that  the  several  sheets  of  paper  upon 
which  the  clerk  wrote  down  the  deposition  had 
not  been  fastened  together  at  the  time  the  jus- 
tice signed  the  last  sheet,  which  was  the  only 
one  he  signed  : — Held,  that  though  it  might  not 
he  either  a  dying  declaration  or  a  deposition, 
the  clerk  might  give  the  statement  in  evidence. 
Be$.  v.  Mann,  49  J.  P.  743—  Denman,  J. 

Privilege  of  Witnesses.] — See  Evidence. 

Under  Criminal  Law  Amendment  Aet,  1886.] 
-&*  ante,  cola.  581,  582. 

aJMistiom — Proceedings  against  Newspaper 
Proprietor— Proof  of  Facts  stated  therein.]— A 
confession,  admission,  or  statement,  although 
extia  judicial,  if  made  by  a  person  charged  with 
a  crime  is  sufficient  without  independent  proof 
of  the  commission  of  the  crime  to  sustain  a  con- 
riction.  Where,  therefore,  it  was  a  crime  to 
publish  with  a  view  to  promote  the  objects  of 
■o  illegal  association,  a  notice  of  the  calling 
together  of  any  meeting  of  such  association,  or 
<rf  the  members  of  it  as  such  members,  or  of  the 
proceedings  at  such  meeting,  and  in  proceedings 
before  a  magistrate  against  the  proprietor  and 
publisher  of  a  newspaper,  a  copy  of  his  paper, 
containing  a  report  of  proceedings  at  a  meeting, 
together  with  statements  which  tended  to  show 
that  the  meeting  was  a  meeting  of  members  of 
the  illegal  association  as  such  members,  was  put 
in  evidence,  and  the  magistrate  was  satisfied  that 


the  report  and  the  statement  were  published 
with  a  view  to  promote  the  objects  of  the  asso- 
ciation : — Held,  that  the  newspaper  was  sufficient 
evidence  against  the  proprietor  and  publisher  in 
itself  from  which  the  magistrate  might  infer  that 
such  a  meeting  had  been  held,  and  upon  which 
he  would  have  been  justified  in  convicting  the 
defendant  Reg.  v.  Sullivan,  16  Cox,  0.  0.  847 
— Ir.  Ex.  D. 

Of  other  Offences,  when  admissible.]  —  See 
Reg.  v.  Stephen*,  ante,  col.  568 ;  and  Meg.  v. 
Flannagan,  ante,  col.  680. 

Provious  Conviction— When  to  be  Proved.] — 

Where  a  person  is  indicted  for  night  poaching 
after  two  previous  convictions,  the  previous  con- 
victions should  not  be  proved  until  the  jury  find 
a  verdict  on  the  facts  of  the  case.  Reg.  v.  Wood- 
field,  16  Cox,  G.  C.  314— Hawkins,  J. 

Disclosure  in  Compulsory  Proceedings— Hear- 
say Evidence — Humour  no  Evidence  of  Know- 
ledge.]— Evidence  of  A.  that  B.  had  told  him 
that  C.  had  committed  an  offence,  is  in  admissible 
as  any  evidence  whatever  of  the  knowledge  of 
B.  as  to  the  fact  of  C.  having  committed  the 
offence ;  and  it  is  therefore  inadmissible  as  evi- 
dence of  an  offence,  disclosed  by  a  bankrupt  in 
his  examination  in  bankruptcy,  having  been  dis- 
closed previously  to  such  examination,  so  as  to 
disentitle  the  bankrupt  to  the  protection  of  the 

Sroviso  to  s.  85  of  the  24  k  25  Vict.  c.  96.  Evi- 
ence  of  the  fact  of  a  rumour  is  no  evidence  of 
the  knowledge  of  a  particular  individual,  and  is 
not  within  any  of  the  exceptions  to  the  rule 
which  excludes  the  reception  of  hearsay  evidence. 
Reg.  v.  Ounnell,  55  L.  T.  786  ;  51  J.  P.  279  ;  16 
Cox,  C.  C.  154— C.  C.  R. 

Husband  and  Wife— Larceny  by  Wife.]— Upon 
the  trial  of  a  married  woman,  jointly  with 
another  person,  for  larceny  of  the  property  of 
her  husband,  the  husband  was  called  as  a  witness 
against  his  wife  : — Held  (Stephen,  J.,  doubting), 
that  the  evidence  of  the  husband  was  im- 
properly received,  and  that  the  conviction  which 
had  taken  place  founded  upon  it  was  bad  as 
against  both  prisoners.  Reg.  v.  Brittlcton,  12 
Q.  B.  D.  266  ;  53  L  J.,  M.  C.  83  ;  50  L.  T.  276  ; 
32  W.  R.  463  ;  48  J.  P.  295  j  15  Cox,  C.  C.  431 
— C.  C.  R. 

Offence    against    Licensing   Laws   by 

Wife.] — S.,  a  wife,  was  licensed  to  sell  liquors, 
and  her  husband  told  the  constable  that  he  took 
some  spirits  away  to  B.'s  house,  where  they  were 
raffled  for  and  then  were  consumed,  and  he 
brought  back  the  proceeds,  and  put  the  money 
in  S.'s  room,  and  she  duly  received  it.  The 
justices  having  convicted  S.  of  selling  at  B.'s 
house,  not  being  licensed  to  do  so  : — Held,  that 
as  S.,  being  a  competent  witness,  did  not  contra- 
dict the  husband's  account,  there  was  some 
evidence  to  support  the  conviction.  Seagar  v. 
White,  48  J.  P.  436— D. 

Statement  of  Wife  in  presence  of  Hus- 
band.] —  Upon  the  trial  of  a  prisoner  for 
feloniously  receiving  stolen  property,  a  list  of 
the  stolen  articles  which  the  prisoner,  who  was  a 
marine  store  dealer,  had  bought,  was  received  in 
evidence,  in  order  to  show  that  he  had  bought  at 
an  under  value.    The  circumstances  under  which 


1 


591         CRIMINAL    LAW — Jurisdiction,  Practice,  and  Procedure.       592 


the  list  was  written  were  as  follows : — A  police- 
constable  asked  the  prisoner  to  consider  when  he 
had  bought  the  stolen  property,  to  which  the 
prisoner  replied  that  his  wife  should  make  out  a 
list  of  it,  and  on  the  next  day  the  prisoner's  wife, 
in  her  husband's  presence,  handed  to  another 
constable  the  list  tendered  in  evidence,  saying  in 
her  husband's  hearing,  "  This  is  a  list  of  what  we 
bought,  and  what  we  gave  for  them."  The 
question  reserved  was  whether  such  list  was  pro- 
j>erly  admitted  in  evidence  : — Held,  by  the  court, 
that  the  list  was  clearly  admissible  in  evidence. 
Reg.  v.  Mallory,  13  Q.  B.  D.  33  ;  63  L.  J.,  M.  C. 
134  ;  50  L.  T.  429  ;  32  W.  R.  721  ;  48  J.  P.  487  ; 
15  Cox,  C.  C.  456— -C.  C.  R. 

Beoondary  Evidence— Proof  of  Destruction — 
Notice  to  Produce.] — O.  ordered  animals,  bought 
at  a  market  in  the  county  of  8.,  to  be  forwarded 
to  T.,  in  the  county  of  C.  A  form  of  certificate 
was  there  given  to  the  drover,  who  showed  it  in 
course  of  the  journey  to  railway  porters  and 
others  at  two  places  in  the  county  of  0.,  but  it 
was  destroyed  by  order  of  O.  On  O.  being 
charged  for  uttering  a  false  certificate,  and  notice 
to  produce  the  original  being  served: — Held,  that 
the  justices  at  T.  were  right  in  receiving  secon- 
dary evidence  of  the  certificate.  Oakey  v.  Stret- 
ton,  48  J.  P.  709— D. 

Proof  of  Telegram  sent  by  Prisoner.] — 

Where  in.  a  criminal  case  it  is  sought  to  give  in 
evidence  the  contents  of  a  telegram  sent  by  the 
prisoner  to  a  witness,  it  is  absolutely  necessary 
that  the  original  message  handed  to  the  post- 
office  should  be  produced,  or  proof  given  that  it 
is  destroyed,  and  the  copy  received  by  a  witness 
cannot  be  given  in  evidence  until  it  is  proved 
that  the  original  cannot  be  produced.  Reg.  v. 
Began,  16  Cox,  C.  C.  203— Field,  J. 

Evidence  of  previous  Connexion  between  Prose- 
cutrix and  Prisoner— Rape.]— On  the  trial  of 
an  indictment  charging  an  assault  with  intent 
to  rape,  if  the  prosecutrix,  in  answer  to  cross- 
examination,  denies  having  voluntarily  had  con- 
nexion with  the  prisoner  prior  to  the  alleged 
assault,  evidence  to  contradict  her  by  proving 
such  prior  connexion  is  admissible  on  his  behalf. 
Reg.  v.  Riley,  18  Q.  B.  D.  481  ;  56  L.  J.,  M.  C. 
62  ;  66  L.  T.  371 ;  35  W.  R.  382  ;  16  Cox,  C.  C. 
191— C.  C.  R. 

Effect  of  Misreception  of,  at  Trial.]— In  a 
criminal  trial,  if  any  evidence  not  legally  ad- 
missible against  the  prisoner  is  left  to  the  jury, 
and  they  find  him  guilty,  the  conviction  is  bad  ; 
and  this  notwithstanding  that  there  was  other 
evidence  before  them  properly  admitted,  and 
sufficient  to  warrant  a  conviction.  Reg.  v. 
Gibson,  18  Q.  B.  D.  637  ;  56  L.  J.,  M.  C.  49  ;  66 
L.  T.  867  ;  85  W.  R.  411  ;  51  J.  P.  742  ;  16  Cox, 
C.  C.  181— C.  C.  R.  See  Reg.  v.  Brittleton, 
ante,  col.  590. 


4.    TRIAL. 

Postponement— Fresh  Evidence.]— See  Reg. 
v.  Mannagan,  ante,  col.  688. 

Venue— Obtaining  Credit  in  Ireland.]  —  A 
person  may  be  indicted  in  England  for  having, 
whilst  resident  therein,  obtained  credit  within 
the  meaning  of  s.  31   of  the  Bankruptcy  Act, 


1883,  from  a  person  resident  in  Ireland  at  the 
time  such  credit  was  obtained.  Reg.  v.  Petrn, 
16  Q.  B.  D.  636  ;  66  L.  J.,  M.  C.  173 ;  54  L.  T. 
645  ;  34  W.  R.  399  ;  50  J.  P.  631  ;  16  Cox,  C.  C. 
36— C.  C.  R. 


Obtaining  Honey  by  False  Pretences.]— 


See  Reg.  v.  Holme*,  ante,  coL  572. 

Prisoner's  Statement— Defence  by  Counsel]— 
A  prisoner,  defended  by  counsel,  may  make  a 
statement  to  the  jury,  provided  he  does  so  before 
the  speech  of  counsel  for  the  defence.  Reg.  v. 
Masters,  60  J.  P.  104— Stephen.  J. 

The  Prisoners'  Counsel  Act,  1837,  does  not 
deprive  prisoners  of  the  right  of  making  a  state- 
ment to  the  jury  in  cases  of  felony  ;  they  may, 
if  they  wish  to  do  so,  make  a  statement  to  the 
jury  before  the  court  is  addressed  by  theft 
counsel,  which  statement  will,  however, give  the 
Crown  a  right  of  reply.  Reg.  v.  Boherty,  16 
Cox,  C.  C.  306— Stephen,  J. 

Counsel — Witness  called  by  Prisoner.] 

— Upon  the  trial  of  a  prisoner  who  is  defended 
by  counsel  (in  accordance  with  the  opinion  of 
the  majority  of  the  judges),  the  prisoner,  after 
bis  counsel's  address  to  the  jury,  will  be  allowed 
to  make  a  statement  of  facts  to  the  jury.  Bat 
when  it  is  proposed  to  call  witnesses  for  the 
prisoner,  it  will  not  be  competent  for  him  to 
make  any  statement  to  the  jury  in  addition  to 
his  counsel's  address.  Reg.  v.  Mill  house,  15  Cox, 
C.  C.  622— Coleridge 


.    Jteg 

,   V>.  J. 


Right  of  Reply— Several  Prisoners,  some  call- 
ing Witnesses.] — Where  several  prisoners  were 
indicted  jointly,  and  some  of  them  called  wit- 
nesses, but  others  did  not : — Held,  that  the 
Crown  had  a  right  of  reply  to  the  counsel  for 
those  prisoners  who  called  witnesses,  but  that 
the  counsel  for  the  prisoners  who  called  no  wit- 
nesses, had  a  right  to  address  the  jury  last 
Reg.  v.  Burns,  16  Cox,  C.  C.  195—  Day  and 
Wills,  JJ. 

Four  men  were  indicted  for  having  assaulted  the 
prosecutor  with  intent  to  do  him  grievous  bodily 
harm  ;  one  of  the  prisoners  called  witnesses  in 
his  defence  to  prove  an  alibi ;  no  witnesses  were 
called  on  behalf  of  the  other  prisoners.  Counsel 
for  the  prosecution  claimed  a  general  right  of 
reply  : — Held,  that  there  was  no  general  right  of 
reply,  and  that  the  most  convenient  course  would 
be  for  counsel  for  the  prosecution  to  sum  up  the 
case  generally,  and  reply  on  the  evidence  called 
by  one  prisoner,  before  the  counsel  for  the  other 
prisoners  addressed  the  jury.  Reg.  v.  Kain,  15 
Cox,  C.  C.  388— Stephen,  J. 

Statement  by  Prisoner.] — See  Reg.  t. 

Boherty,  supra. 

Special  Verdict— Jurors1  Prayer.]— The  con- 
servators of  the  river  T.  having  indicted  the 
local  board  of  S.,  as  the  rural  sanitary  authority, 
for  having,  in  contravention  of  a.  63  of  the 
Thames  Navigation  Act,  1866,  '*  caused  or,  with- 
out lawful  excuse,  suffered."  sewage  matter  to 
flow  into  the  6aid  river  T.  within  their  district, 
in  connexion  with  which  certain  points  of  law 
were  necessarily  involved : — Held,  that  the 
proper  course  to  follow  was  to  take  a  special 
verdict  (prepared  by  both  sides)  from  the  jury, 
after  formal  evidence  of  the  matters  alleged  in 


598 


CRIMINAL    LAW — Jurisdiction,  Practice,  and  Procedure.        594 


the  special  verdict  had  been  given,  and  the  points 
of  law  arising  therein  should  be  subsequently 
discussed  by  the  court.  Reg.  v.  Staines  Local 
iUrrf,  52  J.  P.  215— Huddleston,  B. 

Proceedings  beforo  Jnstices.] — See  Justice 
of  thk  Peace. 

Hue,  Amount  of —Fine  to  be  Commensurate 
with  Oflenee.] — Where,  on  conviction  of  a  cor- 
poration upon  an  indictment  removed  by  certio- 
rari into  the  Crown  side  of  the  Queen's  Bench 
Division,  a  fine  is  to  be  imposed,  the  fine  is  only  to 
be  commensurate  with  the  offence  com  milted,  and 
the  court  in  apportioning  the  fine  will  not  take 
into  consideration  the  amount  of  the  costs  in- 
curred by  the  prosecution.  Reg.  v.  London  and 
Sertk  Western  Railway,  58  L.  T.  771  ;  52  J.  P. 

m-v. 

Prosecution  by  Individual— Independent  Pro- 
teeittai  by  Police — Costs.] — Where  the  principal 
person  interested  in  prosecuting  a  prisoner  is 
desirous  of  conducting  the  prosecution,  he  is 
entitled  to  do  so,  and  to  be  allowed  the  costs  of 
the  prosecution.  In  a  case  of  aggravated  assault 
by  a  prisoner  on  his  wife,  the  wife  retained  a 
solicitor  to  prosecute  her  husband.  In  pursuance 
of  this  retainer,  the  solicitor  prepared  and  de- 
livered a  brief  to  counsel  at  the  assizes  with 
instructions  to  conduct  the  prosecution.  A  con- 
stable of  the  county  had  been  bound  over  by 
recognisances  to  prosecute,  and  the  clerk  to  the 
magistrates,  as  was  the  usual  custom,  prepared 
and  delivered  a  brief  to  counsel  to  prosecute  : — 
Held,  that  the  conduct  of  the  prosecution  should 
not  be  taken  out  of  the  hands  of  the  person 
principally  interested  if  that  person  wished  to 
undertake  it.  Reg.  v.  Totes  (7  Cox,  C.  C.  361) 
distinguished.  Reg.  v.  Bushell,  52  J.  P.  136 ; 
16  Cox,  C.  C.  367— Coleridge,  C.  J. 

Treasury  Prosecution— Local  Solicitors — Lia- 
bility to  Account.] — When  local  solicitors  are 
retained  by  the  Treasury,  to  conduct  prosecutions 
on  their  behalf,  such  local  solicitors  are  agents 
for  the  Treasury,  and  are  therefore  bound  to  ac- 
count to  the  Treasury  for  any  sums  of  money 
received  in  respect  of  costs,  and  to  pay  over  to 
the  Treasury  the  difference  between  the  sums  so 
received  as  costs  and  the  sum  allowed  them  on 
taxation.    Parkinson,  In  re,  56  L.  T.  715— D. 

Costs— Acquittal  of  Defendant — Order  against 
rxhlie  Prosecutor.] — Where  a  criminal  prose- 
cation  has  been  instituted,  undertaken  or  carried 
on  by  the  public  prosecutor,  he  stands  by  virtue 
of  42  Jt  43  Vict.  c.  22,  s.  7,  in  the  same  position 
with  regard  to  costs  as  a  private  prosecutor. 
Where,  therefore,  upon  an  indictment  preferred 
in  compliance  with  s.  2  of  the  Vexatious  Indict- 
ments Act  (22  &  23  Vict.  c.  17),  a  true  bill  is 
found,  and  the  prosecution  is  then  undertaken 
*7  the  public  prosecutor,  and  the  defendant  is 
acquitted,  the  court  has  power,  under  30  &  31 
Vkl.  c.  35,  s.  2,  to  make  an  order  for  payment  to 
the  defendant  of  the  costs  to  which  he  has  been 
pat,  and  in  the  exercise  of  its  discretion  will  not 
he  eiiided  by  the  reasons  which  induced  the 
Public  prosecutor  to  undertake  the  case.  Reg. 
t.  8t%bb$,  16  Cox,  C.  C.  219— Recorder  of 
London. 


5.  BAIL. 

Contract  to  Indemnify— Recovery  back  of 
Money.] — A  contract  is  illegal,  whereby  a  de- 
fendant in  a  criminal  case,  who  has  been  ordered 
to  find  bail  for  his  good  behaviour  during  a 
specified  period,  de}>osits  money  with  his  surety 
upon  the  terms  that  the  money  is  to  be  retained 
by  the  surety  during  the  specified  period  for 
his  own  protection  against  tne  defendant's  de- 
fault, and  at  the  expiration  of  that  period  is  to 
be  returned.  Herman  v.  Jeuckner  or  Zeuehner, 
15  Q.  B.  D.  561  ;  54  L.  J.,  Q.  B.  340  ;  53  L.  T. 
94 ;  33  W.  R.  606  ;  49  J.  P.  502— C.  A.  Re- 
versing 1  C.  &  K.  364— Stephen,  J. 


6.  ERROR. 

Vexations  Indictments  Act.]—  Krror  will  not 
lie  for  non-compliance  with  the  Vexatious 
Indictments  Act.  Boater  v.  Reg.,  57  L.  J., 
M.  C.  85  ;  59  L.  T.  554  ;  16  Cox,  C.  C.  488— D. 


7.  NEW  TRIAL. 

Indictment  for  Hon-Bepair  of  Bridge.]— See 
Way. 

8.  PRISONERS. 

Money  found  on  Prisoner  not  Debt  due  from 
Police.] — Money  in  the  possession  of  a  prisoner 
which  is  taken  possession  of  by  the  police  upon 
his  apprehension,  and  retained  by  them  after 
his  conviction,  does  not  render  the  police  debtors 
to  the  prisoner,  and  is  not  a  debt  which  can  be 
attached  under  garnishee  proceedings.  Rice  v. 
Jarvis,  49  J.  P.  264— D. 

Taking  Possession  of  Goods  by  Police.]— The 
police  have  power  under  a  warrant  for  the  arrest 
of  a  person  charged  with  stealing  goods  to  take 
possession  of  the  goods  for  the  purposes  of  the 
prosecution.  A  person  therefore  is  justified  in 
refusing  to  hand  over  goods  to  one  claiming  to 
be  the  owner,  if  such  person  has  been  entrusted 
with  them  by  the  police,  who  have  taken  posses- 
sion of  them  under  such  circumstances.  Tyler 
v.  London  and  South  Western  Railway,  1  C.  & 
E.  285— Huddleston,  B. 

Peace  officers  when  arresting  persons  under  a 
warrant,  are  empowered  to  take  and  detain 
evidence  of  crime,  whether  the  crime  charged  is 
treason,  felony,  or  misdemeanour.  Dillon  v. 
O'Brien,  20  L.  R.,  Ir.  300  ;  16  Cox,  C.  C.  245— 
Ex.  D. 

Habeas  Corpus  ad  Testificandum — Prisoner 
desiring  to  argue  Case.] — Pending  the  argument 
of  a  case  in  the  Court  of  Appeal,  the  appellant, 
who  proposed  to  appear  and  argue  in  person, 
was  sentenced  to  imprisonment  in  respect  of  a 
charge  of  libel :— Held,  that  the  court  had  no 
power  under  the  circumstances  to  award  a  writ 
of  habeas  corpus  to  bring  the  appellant  before 
the  court  with  a  view  to  her  arguing  her  appeal, 
as  the  provisions  of  44  Geo.  3,  c.  102,  had  no 
application  to  such  a  case.  Weldim  v.  Nral,  16 
Q.  B.  D.  471  ;  54  L.  J.,  Q.  B.  399  :  33  W.  R.  581 
-D. 

Treatment  and  Confinement  of  Prisoners  in 
Prison.]— &e  Prison. 


595 


CROWN. 


596 


CROPS. 


Bilk  of  ■*!•— Bagiitntion.]— See  Bills  of 
Salb. 


CROWN. 

Prerogative — Execution  for  Debt— Distress.] 
— Where  claims  of  the  Crown  and  of  a  subject 
as  creditors  come  into  competition,  the  pre- 
rogative right  of  the  Crown  to  priority  is  not 
limited  to  proceedings  by  writ  of  extent,  bat 
equally  attaches  in  proceedings  by  distress, 
although  the  distress  put  in  by  the  Crown  be 
subsequent  in  date  to  that  of  the  subject,  pro- 
vided the  distress  put  in  by  the  subject  has  not 
been  completely  executed  by  actual  sale.  Attor- 
ney-General v.  Leonardos  Ch.  D.  622  ;  57  L.  J., 
Ch.  860  ;  59  L.  T.  624  ;  37  W.  R.  24— Chitty,  J. 

Debtor  to  Grown  —  Priority.]  —  Letter- 
receivers  were  in  the  habit,  with  the  sanction  of 
the  Postmaster-General,  of  paying  moneys 
received  on  account  of  the  Post-office  into  a 
bank  to  their  private  account,  together  with 
their  own  moneys,  and  of  drawing  cheques  both 
for  their  own  purposes  and  for  payment  to  the 
Post-office.  The  bank  had  notice  that  their 
customers  were  letter-receivers,  and  drew 
cheques  for  Post-office  purposes.  The  bank 
having  gone  into  liquidation : — Held,  that  the 
Postmaster -General,  on  behalf  of  the  Crown, 
was  entitled  to  payment  in  priority  over  other 
creditors  of  the  bank  of  the  balance  due  upon 
the  letter-receivers'  accounts  in  respect  of  Post- 
office  moneys.  If  ex  v.  Ward  (2  Ex.  301,  n.) 
followed.  West  London  Commercial  Bank, 
In  re,  38  Ch.  D.  364  ;  57  L.  J.,  Ch.  925 ;  59 
L.  T.  296— Chitty,  J. 

Effect  of  Statu  to  on.]— Section  150  of  the 

Bankruptcy  Act,  1883,  enacting  that,  save  as 
therein  provided,  the  provisions  of  that  act 
relating  to  the  remedies  against  the  property  of 
a  debtor,  the  priorities  of  debts,  the  effect  of  a 
composition  or  scheme  of  arrangement,  and  the 
effect  of  a  discharge,  shall  bind  the  Crown,  does 
not  by  virtue  of  the  Judicature  Act,  1875,  s.  10, 
operate  as  an  incorporation  in  the  Companies 
Act,  1862,  of  a  similar  provision  so  as  in  a 
winding-up  to  bar  the  Crown  of  its  prerogative 
of  priority  of  payment  over  all  creditors. 
Oriental  Bank  Corporation,  In  re,  TJie  Crown, 
Ex  parte,  28  Ch.  D.  643  ;  54  L.  J.,  Ch.  327 ; 
52  L.  T.  172— Chitty,  J. 

The  Victorian  Statute,  Crown  Liability  and 
Remedies  Act,  1865  (28  Vict.  No.  241),  s.  17, 
does  not  affect  the  prerogative  of  the  Crown 
when  suing  in  this  country.  lb.  Sec  Exchange 
Bank  of  Canada  v.  Reg.,  ante,  col.  323. 

Disclaimer  binding  on  Crown.]  —  The  pro- 
visions of  s.  55  of  the  Bankruptcy  Act,  1883,  as 
to  the  disclaimer  of  onerous  property,  are  "  pro- 
visions relating  to  the  remedies  against  the 
property  of  a  debtor"  within  the  meaning  of 
s.  150  of  that  Act,  and  are  therefore  binding 
upon  the  Crown.     Commissioners  of  Woods  and 


Forests,  Ex  parte,  Thomas,  In  re,  or  Thomast 
Ex  parte,  Trotter,  In  re,  21  Q.  B.  D.  380; 
57  L.  J.,  Q.  B.  574  ;  59  L.  T.  447  ;  36  W.  R.  735^ 
5M.B.B.  209— D. 

Commissioners  of  Worki  and  Public  Buildings.] 
—By  18  &  19  Vict,  c  96,  the  Commissioners  of 
Works  and  Public  Buildings  are  incorporated  and 
empowered  to  take  land  compulsorily  for  the 
purpose  of  building  public  offices : — Held,  that 
the  commissioners  do  not  represent  the  Crown. 
Wood's  Estate,  In  re,  Commissioners  of  Works 
and  Public  Buildings,  Ex  parte,  31  Ch.  D. 
607  ;  55  L.  J.,  Ch.  488  ;  54  L.  T.  145  ;  34  W.  R. 
375— C.  A. 

Lands  dames  Aot— Payment  out  of  Cent] 
— A  railway  company,  under  the  powers  of  its 
act,  gave  notice  to  a  lord  of  the  manor  to  take 
a  piece  of  land  on  the  seashore,  which  he 
claimed  as  part  of  the  waste  of  his  manor.  The 
purchase-money  was  assessed  by  arbitration,  but 
an  adverse  claim  having  been  made  by  the 
Crown,  the  company  paid  the  purchase-money 
into  court  under  the  76th  section  of  the  Lands 
Clauses  Act.  The  Crown  filed  an  information 
against  the  lord  of  the  manor  claiming  the  land, 
together  with  other  land,  as  part  of  the  fore- 
shore. The  lord  of  the  manor  having  filed  a 
petition  for  payment  of  the  purchase-money  to 
him  : — Held,  that  as  the  Crown  could  not  be 
brought  before  the  court  under  the  Lands 
Clauses  Act  to  contest  the  claim  of  the  petitioner, 
the  petition  ought  to  stand  over  till  the  informa- 
tion had  been  heard.  Lowestoft  (Manor  of), 
In  re,  Eeete,  Ex  parte,  24  Ch.  D.  253  ;  52  L.  J., 
Ch.  912 ;  49  L.  T.  523  ;  32  W.  R.  309— C.  A. 

Election  Law— Bight  of  Soldiers  to  Vote.]— 
Officers  and  non-commissioned  officers  in  her 
Majesty's  service  had  resided  in  quarters  in 
blocks  of  barrack  buildings.  In  each  block 
officers  of  superior  rank  to  the  claimants  also 
resided  ;  the  commanding  officer  occupying  a 
separate  dwelling  within  the  barrack  enclosure. 
The  claimants*  quarters  were  liable  to  inspection 
by  superior  officers,  and  the  claimants  them- 
selves were  subject  to  many  disciplinary  regula- 
tions : — Held,  that  the  appellants  were  servants 
of  the  Crown,  and  not  of  their  superior  officer^ 
that  the  Crown,  if  affected  by  the  Representation 
of  the  People  Act,  1884,  was  mentioned  therein ; 
that  they  were  to  be  deemed  inhabitant  occupiers 
of  their  quarters,  and  that  no  person  under  whom 
they  "  served  in  their  office,  service,  or  employ- 
ment," resided  in  the  same  dwelling-house, 
within  the  meaning  of  s.  3  of  that  act.  Atkin- 
son v.  Collard,  16  Q.  B.  D.  254  ;  5b  L.  J.,  Q.  B. 
18  ;  53  L.  T.  670 ;  34  W.  R.  75  ;  50  J.  P.  23; 
1  Colt  376— D. 

And  see  further,  post,  Election  Law. 

Waiver  of  Forfeiture  —  Proof  ol  ]  —  A  for- 
feiture may  be  waived  by  the  Crown  as  well  as 
by  private  individuals,  and  such  waiver  may  be 
proved  by  similar  evidence,  ag.,  by  the  con- 
tinued acceptance  of  the  Crown  rent  in  respect 
of  a  market  after  conduct  which  would  give  the 
Crown  a  right  to  forfeit  a  grant.  Middleton 
(Lord)  v.  Power,  19  L.  R.,  Ir.  1— V.  C. 

Treasury  Prosecution  by  Local  Solicitors- 
Liability  to  Account.]—^  Parkinson,  In  «V 
ante,  col.  593. 


597 


CROWN— CUSTOMS. 


59$ 


light  to  pint  Fishery  to  Subject—  Excluaion 
•f  Owner  of  Soil] — The  Crown  can  hold  a  river- 
bed throughout  a  manor  and  the  fishery  in  the 
riier  flowing  over  the  same  as  parcel  of  the 
minor,  and  may  grant  the  manor  with  the  river- 
bed and  fishery  to  a  subject,  and  the  subject 
may  grant  the  banks  of  the  river  with  reserva- 
tion of  the  river-bed  and  fishery.  Devonshire 
(Dikerf)  v.  Pattinton,  20  Q.  B.  D.  263  ;  57  L.  J., 
Q.  B.  189 ;  68  L.  T.  392  ;  52  J.  P.  276— C.  A. 

Bights  of  Surety— Crown  Debt— Priority.] — 
A  rarer/  to  the  Crown,  who  has  paid  the  debt  of 
his  deceased  principal,  is  entitled  to  the  Crown's 
priority  in  the  administration  of  his  principal's 
ertate.  Churchill  (Lord),  In  re,  Manisty  v. 
ChrehM,  39  Ch.  D.  \U  ;  59  L.  T.  697  ;  36 
W.  R.  805— North,  J. 

Beat  to  Trial  at  Bar— Change  of  Venue.]— 
By  the  Crown  Suits  Act,  1865,  s.  46,  where  in 
any  cause  in  which  the  attorney-general  is 
entitled  on  behalf  of  the  Crown  to  demand 
as  of  right  a  trial  at  bar  he  states  to  the 
court  that  he  waives  that  right,  "  the  court  on 
the  application  of  the  attorney-general  shall 
change  the  venue  to  any  county  he  may  select "  : 
-Held,  that  an  action  under  39  &  40  Vict.  c.  80, 
%.  10,  against  the  secretary  of  the  Board  of 
Trade,  to  recover  damages  for  the  detention  of  a 
ship  for  survey  without  reasonable  and  probable 
cause,  is  within  the  above  section,  that  the 
attorney-general  is  entitled  to  demand  as  of 
right  a  trial  at  bar  in  such  an  action,  and  that 
the  court  is  bound  on  his  waiving  that  right  to 
change  the  venae  to  any  county  wherein  he 
electa  to  have  the  action  tried  Dixon  v.  Farrcr, 
18  Q.  B.  D.  43  ;  56  L.  J.,  Q.  B.  53  ;  55  L.  T.  578  ; 
36  W.  R.  96  ;  6  Asp.  M.  C.  52— C.  A. 

HtUdon  of  Sight — Damages  for  Breach  of 
Comtraet  by  the  Crown.]— It  is  settled  law  that 
a  petition  of  right  will  lie  for  damages  resulting 
from  a  breach  of  contract  by  the  Crown.  Thomas 
t.  Rty.  (10  L.  R.,  Q.  B.  31),  and  leather  v.  Beg. 
(6  B.  t  S.  293),  approved.  It  is  immaterial 
whether  the  breach  is  occasioned  by  the  acts  or 
by  the  omissions  of  the  Crown  officials.  Windsor 
**d  A*nap*>lis  Railway  Company  v.  Reg.y  11 
App.  Cas.  607  ;  55  L.  J.,  P.  C.  41  ;  55  L.  T.  271  ; 
61  J.  P.  260— P.  C. 

Eopayment  of  Income  Tax.] — A  land 

company  paid  debenture  interest  in  excess  of  the 
assessments  under  schedule  A.,  deducted  income 
tax  from  the  interest,  and  returned  the  whole 
anonnt  deducted  for  assessment  under  schedule 
D. :— Held,  that  a  petition  of  right  did  not  lie 
to  obtain  repayment  of  the  sum  paid  under 
■enednle  D.  Holborn  Viaduct  Land  Company 
▼■  &y.,  52  J.  P.  341— Stephen,  J. 

light  to  sno  Crown.] — See  cases,  ante,  cols. 
J18, 332,  837. 


CRUELTY. 

1.  To  Animals.— See  Animals. 

2.  In   Divorce  Cases.— -See   Husband   and 
Wife. 


ao. 


i.] — See   cases,  ante,   cols.  317, 


CURATE. 

See  ECCLESIASTICAL  LAW. 


CUSTODY  OP   CHILDREN. 


See  INFANT. 


CUSTOM. 

As   to   Jtannneration   of  Surveyora.]  —  See 
Architect. 

As  to  Bills  of  Lading.]— &r  Shipping  (Bills 
of  Lading). 

As   to   Lighterage.]  —  See   Shipping   (De- 

MUBBAGE). 

As    to     Charter-parties.]  —  Sec     Shipping 
(Chaster-  Party). 

As  to  Sale  of  Goods.]— See  Sale. 

As  to  Liability  of  Principal  or  Agent.]— See 
Principal  and  Agent. 

Of  Lloyds.]— Sec  Insurance  (Marine). 

Admissibility   to   Explain    Contract.]  —  See 
Evidence. 


CUSTOMS. 

Annuity  Fund  —  Interest  of  Subscriber  — 
44  Nominee "  —  Nomination  of  a  Person  as 
Trustee.] — On  the  construction  of  the  Act  56 
Geo.  III.  c.  lxxiii.,  by  which  the  Customs  Annuity 
and  Benevolent  Fund  was  established,  and  of  the 
rules  made  under  the  authority  of  that  act : — 
Held,  that  in  appointing  a  "  nominee "  of  a 
subscriber's  interest  in  the  fund  the  directors 
ought  to  be  informed  for  what  purpose  the 
nominee  is  appointed  and  to  whom  the  money  is 


S99 


DAMAGES — General  Principles. 


600 


to  be  paid.  This  may  be  done  by  the  instrument 
appointing  the  nominee  or  by  some  other  in- 
strument signed  by  the  subscriber,  or  by  his 
will.  Semble,  a  "  nominee  "  may  be  a  person 
who  is  intended  to  take  as  a  trustee  for  others. 
*Urquhart  v.  Butterfield,  37  Ch.  D.  357 ;  57 
L.  J.,  Ch.  521  ;  57  L.  T.  780  ;  36  W.  R.  376 
— C.  A. 

A  subscriber  to  the  fund  became  lunatic  while 
in  Scotland,  where  he  died.  He  made  a  will 
before  he  became  insane  giving  his  property  to 
legatees,  but  making  no  allusion  to  his  interest 
in  the  fund.  A  curator  was  appointed  by  the 
Scotch  Court  of  Session,  and  proved  the  will. 
The  Court  of  Session  made  an  order  appointing 
the  curator  nominee  of  the  subscriber's  interest 
in  the  fund,  "  for  behoof  of  the  legatees  under 
his  will,"  and  the  directors  of  the  fund  admitted 
him  on  those  terms.  The  directors  admitted 
that  the  order  had  the  same  effect  as  if  the 
subscriber,  being  sane,  had  made  the  nomina- 
tion : — Held,  that  the  order  was  a  sufficient 
appointment  of  the  nominee,  and  a  declaration 
of  the  persons  for  whose  benefit  the  sum  insured 
was  to  be  paid  ;  and  that  the  directors  were 
bound  to  pay  the  money  to  the  curator.    lb. 

Customs  and  Excise.]—  See  Revenue. 


I.    GENERAL     PRINCIPLES. 


DAMAGES. 

I.    General    Principles, 

II.    Jurisdiction  to  Reduce.—  See  Prac- 
tice (New  Trial). 

III.    In  Particular  Cases. 

1.  Penalty  or  Liquidated  Damages.— 

See  Penalty. 

2.  Damage*    or    Injunction. — See    IN- 

JUNCTION. 

3.  In  Actions  for  Specific  Performance. 

— See  Specific  Performance. 

4.  Breach  of  Warranty  of  Authority. 

— See  Principal  and  Agent. 

5.  Infringement      of      Patent.  —  See 

Patent. 

6.  Under  Lord    CampbelVs   Act. — See 

Negligence. 

7.  In  Actions  for  Wrongful  Dismissal. 

— See  Master  and  Servant. 

8.  Action  for  Waste  against  Tenant. — 

See  Landlord  and  Tenant. 

9.  Action  against  Tenant  for  Breach 

of  Covenant. — See  LANDLORD  AND 
Tenant. 

10.  Over-issue  of  Debenture  Stock. — See 
Company  (Debentures). 

It.  Non-delirery  of  Cargo. — See  Ship- 
ping (Cargo). 

12.  Dishonour  of  Bill  of  Exchange. — 

See  Bills  of  Exchange. 

13.  Detention  of  Stock. — See  Detinue. 

14.  In  Actions  of  Trover. — See  Trover. 
16.  Misrepresentations  in  Prospectus. — 

See  Company  (Prospectus). 
16.  Actions  of  Damage — Collision. — See 
Shipping  (Collision). 


Natural  and  Reasonable  Remit— Negligwwe 
— Nervous  Shock.  ]  —  Damages  in  a  case  of 
negligent  collision  must  be  the  natural  and 
reasonable  result  of  the  def  endants'  act ;  damages 
for  a  nervous  shock  or  mental  injury  caused  by 
fright  at  an  impending  collision  are  too  remote. 
The  Notting  Hill  (9  P.  D.  105)  approYed. 
Victorian  Railways  Commissioners  v.  CovlUu, 
13  App.  Cas.  222  ;  57  L.  J.,  P.  C.  69  ;  58  L.  T. 
390  ;  37  W.  R.  129  ;  52  J.  P.  500— P.  C. 

Where  a  gate-keeper  of  a  railway  company 
negligently  invited  the  plaintiffs  to  drive  o?er  a 
level  crossing  when  it  was  dangerous  to  do  so, 
and  the  jury,  although  an  actual  collision  with 
a  train  was  avoided,  nevertheless  assessed  damages 
for  physical  and  mental  injuries  occasioned  by 
the  fright :— Held,  that  the  verdict  could  not  be 
sustained,  and  that  judgment  must  be  entered 
for  the  defendants.  Quaere,  whether  proof  of 
"  impact "  was  necessary  to  maintain  the  action. 
lb. 


Injury  to  Property  by   Flood— Injury  to 


Reversion.] — Owing  to  the  negligence  of  the 
defendants  a  building  estate  belonging  to  the 
plaintiff  was  overflowed  by  a  flood.  Part  of  the 
land  was  covered  with  houses  (A)  which  were  in 
the  plaintiff's  possession.  Another  part  was 
covered  with  houses  (B)  erected  by  builders  under 
building  leases.  Other  parts  were  the  subject  of 
building  agreements  under  which  houses  (G) 
were  in  course  of  erection,  and  the  plaintiff  was 
bound  to  make  and  had  made  advances  to  the 
builders  on  the  security  of  the  property.  The 
remainder  of  the  land  (D)  was  vacant,  and  in 
the  plaintiff's  possession.  The  amount  of  damages 
to  which  the  plaintiff  was  entitled  was  referred 
to  a  special  referee.  In  respect  of  (A)  the  referee 
allowed  as  damages  (1)  the  expense  of  repairing 
the  houses,  and  the  rent  during  the  period  of 
repairs ;  (2)  the  loss  arising  from  the  reduced 
rental  for  four  years  in  consequence  of  the  pre- 
judice against  the  neighbourhood  caused  by  the 
flood.  As  to  ( B) ,  he  found  that  there  was  no  injury 
which  would  last  to  the  end  of  the  leases,  but  he 
allowed  a  sum  for  depreciation  of  the  selling 
value  of  the  landlord's  interest,  in  consequence 
of  the  houses  being  worth  less  to  let.  As  to  (C), 
he  deducted  the  value  of  the  houses  when  repaired 
and  completed,  less  the  expense  of  repairing  and 
completing  them,  from  the  amount  advanced, 
and  awarded  this  difference  to  the  plaintiff  for 
depreciation  of  mortgage  securities.  As  to  (D), 
he  pave  three  months  of  an  estimated  rent  for 
delay  in  letting :— Held,  that  (A)  (2)  must  be 
disallowed,  for  the  loss  of  rental  arising  from 
the  prejudice  against  the  neighbourhood  caused 
by  the  flood  was  not  the  natural  result  of  or 
directly  caused  by  the  flood,  and  was  not  a  legi- 
timate ground  for  giving  damages :  That  the  sum 
allowed  in  respect  of  (B)  must  also  be  disallowed, 
for  that  a  reversion  can  only  recover  damages 
where  the  injury  to  the  property  is  permanent 
so  that  it  will  continue  to  affect  it  wnen  the  re- 
version comes  into  possession,  and  he  is  not 
entitled  to  damages  in  respect  of  a  temporary 
injury,  on  the  ground  that  it  affects  the  present 
saleable  value  of  his  reversion  :  That  the  sum 
given  for  depreciation  of  mortgage  securities  (G) 
must  be  disallowed,  and  an  inquiry  directed  with 
the  view  of  ascertaining  to  what  extent  the  flood 
had  made  those  houses  a  less  sufficient  security 


601 


DAMAGES — General  Principles. 


602 


for  the  plaintiffs  advances  than  they  were  before. 
Rutt  ▼.  Victoria  Graving  Dock  Company ',  30 
Oh.  D.  113 ;  56  L.  T.  216  ;  35  W.  R.  673— C.  A. 

ignement  to  enter  into  Agreement  with 
Third  Party.]— An  agreement  was  made  between 
F.  and  W.  that  W.  would  enter  into  an  agree- 
ment with  F.'s  landlord,  0.,  for  a  lease  at  a  given 
rent  for  such  term  and  subject  to  such  covenants 
as  0.  should  approve,  and  that  F.  upon  such 
lease  being  granted  would  surrender  his  lease. 
W.  refused  to  carry  out  this  agreement : — Held. 
that  F.  was  entitled  to  damages  from  W.  for 
breach  of  the  agreement.  Flutter  v.  Wheeler ',  38 
Ch,  D.  130;  57  L.  J..  Ch.  871  ;  59  L.  T.  15  ;  37 
W.  R.  40-C.  A. 

lot  advancing  Money  ai  agreed.]— Where 
there  is  an  agreement  to  lend  money,  and  special 
damage  results  from  the  breach  of  that  agree- 
ment, and  the  party  is  deprived  of  the  oppor- 
tunity of  getting  money  elsewhere,  substantial, 
and  not  merely  nominal,  damages  ought  to  be 
awarded.  Manchester  and  Oldham  Brink  v. 
Cook.  49  L.  T.  674— D. 

Bale  of  Goods — Breach  of  Warranty.] — On  a 
ale  of  seed  potatoes,  the  potatoes  were  of  an 
inferior  Quality  to  that  warranted  : — Held,  that 
the  purchaser  was  entitled  to  the  difference  in 
false  between  the  crop  actually  produced  and 
the  crop  that  would  have  been  produced  if  the 
warranty  had  been  complied  with,  if  it  were  a 
reasonable  thing  for  the  purchaser  to  plant  the 
teed  without  examination.  Wagstaffv.  Short- 
a*t*  Dairy  Company,  1  C.  &  E.  324— Cave,  J. 

market  Prioe— Profits.]— The  ordinary  rule  as 
fo  the  measure  of  damages  in  case  of  breach  of 
contract  to  accept  a  manufactured  article,  applies 
equally  in  the  case  of  an  unmanufactured  article. 
Where,  therefore,  in  the  case  of  an  unmanufac- 
tured article,  there  is  a  market  price  at  the  date 
of  breach,  the  profits  that  would  have  arisen 
from  the  contract,  and  the  losses  sustained 
through  its  breach,  cannot  be  considered  as 
elements  of  the  damage.  Tredegar  Iron  and 
Cod  Company  v.  Gielgud,  1  C.  &  E.  27— Field,  J. 

Ie  Market  — Sub-tale.] — In  an  action  for 
damages  for  non-delivery  of  goods,  where  the 
wne  class  of  goods  is  not  obtainable  in  the 
market  at  the  place  of  delivery,  the  price  on  a 
•■h-sale  by  a  purchaser  is  evidence  of  the  value 
of  the  goods,  and  the  amount  by  which  such 

Erice  on  sub-sale  exceeds  the  contract  price  may 
e  recovered  as  damages,  although  the  seller  at 
tk*  time  of  the  contract  had  no  notice  of  the 
wh-sale.  Stroud  r.  Austin.  I  C.  &  E.  119— 
Csve,J. 

lm  of  Market.}— The  defendants  advertised 
that  they  would  convey  fish  from  London  to 
Boulogne  at  certain  through  rates  by  their 
•peaal  tidal  train  and  passenger  boat,  "  wind, 
father,  and  tide  permitting."  A  consignment 
jffch  intended  for  the  Paris  market  (of  which 
ace  the  defendants  had  notice)  was  delivered  by 
jj*  Plaintiffs  in  London  to  the  defendants,  to 
he  forwarded  to  Boulogne.  Owing  to  rough 
*<*ther,  it  was  not  put  on  board  the  passenger 
°°*t  at  Folkestone,  but  was  sent  on  by  a  cargo 


boat  which  arrived  at  Boulogne  too  late  for  the 
train  to  Paris.  It  was  delayed  at  Boulogne  for 
twenty-four  hours,  and  deteriorated,  and  was 
put  up  for  sale  in  the  Paris  market  a  day  late  : 
— Held,  that  there  was  no  absolute  undertaking 
to  carry  the  fish  by  any  particular  train  and 
boat,  and  that,  if  the  defendants  under  the  cir- 
cumstances had  used  all  reasonable  care  to 
deliver  the  fish  with  the  utmost  possible 
despatch,  they  had  discharged  their  obligation, 
and  that  damages  could  not  be  given  for  the 
loss  of  the  market  in  Paris.  Hawes  v.  South- 
Eastern  Railway,  54  L.  J.,  Q.  B.  174  ;  52  L.  T. 
514— D. 

A  ship  having  been  damaged  by  collision  with 
another  ship,  the  owners  of  cargo  on  the  former 
claimed  damages  from  the  owners  of  the  latter 
ship.  The  cargo-owners  claimed,  inter  alia,  for 
damages  in  respect  of  the  loss  of  market  in  con- 
sequence of  a  portion  of  the  cargo  having  been 
delayed  in  its  arrival  at  the  port  of  destination  : 
Held,  that  loss  of  market  was  too  remote  a  con- 
sequence to  be  considered  as  an  element  of 
damage,  and  that  there  was  no  difference  in  the 
principles  as  to  remoteness  of  damage,  whether 
the  damages  are  claimed  in  contract  or  in  tort. 
The  Xotting  Hill,  9  P.  D.  105  ;  53  L.  J.f  P.  56  ; 
51  L.  T.  66  ;  32  W.  R.  764  ;  5  Asp.  M.  0.  241— 
C.  A. 

The  defendant,  the  master  of  the  steamer 
"  Carbis  Bay,"  lying  at  Wilmington,  signed  bills 
of  lading  for  400  bales  of  cotton  "  shipped  on 
board  the  '  Carbis  Bay ' "  for  Liverpool.  In  con- 
sequence of  insufficient  room  only  165  bales 
could  be  shipped,  and  the  defendant  directed  the 
remaining  235  bales  to  be  shipped  on  board  the 
steamer  "  Wyio,"  then  lying  in  the  same  port, 
bound  for  Liverpool.  The  "  Carbis  Bay"  arrived 
at  Liverpool  on  the  26th  of  October,  and  the 
"  Wylo  "  on  the  29th  of  October,  and  both  cargoes 
were  delivered  to  the  plaintiffs,  who  were  in- 
dorsees of  the  bills  of  lading.  Between  the  26th 
and  the  29th  of  October  a  fall  in  the  price  of 
cotton  took  place,  and  the  plaintiffs  sued  the 
defendant  for  the  loss  thereby  occasioned : — 
Held,  that  on  the  26th  of  October  the  plaintiffs 
had  a  right  of  action  against  the  defendant  for 
non-delivery,  that  the  measure  of  damages  was 
the  market  price  of  cotton  on  that  day,  and  that 
the  subsequent  delivery  of  the  cotton  ex  "  Wylo" 
could  only  be  taken  into  account  in  reduction  of 
damages.  Smith  v.  Tregarthen,  56' L.  J.,  Q.  B. 
437  ;  57  L.  T.  58 ;  35  W.  B.  665  ;  6  Asp.  M.  C. 
137— D. 

No  Notice  of  Special  Contract.]— Section  2& 
of  the  Companies  Act,  1867,  is  for  the  {protec- 
tion of  a  transferor  of  shares  in  a  registered 
company,  and  enables  him  to  compel  the  com- 
pany to  register  the  transfer  in  case  the  trans- 
feree fails  to  do  so.  But  the  section  has  made  no 
alteration  as  regards  the  ordinary  contract  for 
the  sale  of  shares  in  a  company,  under  which  a 
transferor,  in  consideration  of  the  price  of  such 
shares,  is  bound  to  execute  a  valid  transfer  and 
hand  the  certificates  to  the  transferee,  whilst  the 
transferee  is  bound  to  get  the  transfer  registered. 
The  plaintiff,  under  an  alleged  agreement  that 
certain  shares  which  he  held  in  a  company 
should  be  taken  by  one  L.  in  payment  of  a  debt 
due  from  him  to  L.,  if  such  shares  were  regis- 
tered, executed  a  valid  transfer  of  the  same  and 
handed  the  certificates  to  L.  The  plaintiff' 
applied  to  the  company  under  s.  26  of  the  Com- 


1 


60S 


DAMAGES — General  Principles. 


604 


panies  Act,  1867,  to  register  the  transfer,  bat 
they  refused  to  do  so  upon  the  ground  that  he 
was  indebted  to  them.  The  question  of  his  in- 
debtedness was  decided  in  his  favour  in  an 
action  between  him  and  the  company,  and  the 
transfer  was  subsequently  registered.  The  com- 
pany had  no  notice  of  the  alleged  agreement 
between  the  plaintiff  and  L.,  the  transfer  being 
expressed  to  have  been  executed  for  a  nominal 
sum.  The  market  value  of  the  shares  having 
fallen  considerably  between  the  date  when  the 
transfer  was  executed  and  that  at  which  it  was 
actually  registered,  the  plaintiff  sought  to 
recover  damages  from  the  company  for  their 
wrongful  refusal  to  register  the  transfer  : — Held, 
that  the  plaintiff  was  only  entitled  to  recover 
nominal  damages,  as  the  company  had  received 
no  notice  of  the  alleged  agreement  between 
him  and  L..  and  also  because  he  had  suffered 
no  damage  either  in  respect  of  calls  or  other- 
wise from  the  refusal  of  tne  company  to  register 
the  transfer.  Skinner  v.  City  of  London  marine 
Insurance  Corporation,  14  Q.  B.  D.  882 ;  54 
L.  J.,  Q.  B.  437  ;  53  L.  T.  191  ;  33  W.  R.  628— 
C.A. 

Purchase  for  Specific  Purpose.] — On  breach  of 
•contract  by  the  seller  to  deliver  an  article 
obviously  valueless  if  used  for  the  purpose  for 
which  such  an  article  is  ordinarily  used,  the 
buyer  is  entitled  to  recover  damages  based  on 
the  value  of  the  article  if  used  for  the  specific 
purpose  for  which  the  buyer  bought  it,  although 
such  specific  purpose  were  unknown  to  the 
seller  at  the  time  of  the  sale.  Such  value  may 
be  ascertained  by  considering  the  net  annual 
profits  to  be  obtained  from  such  specific  use  of 
the  article.  Be  Mattos  v.  Great  Eastern  Steam- 
ship Company,  1.  C.  &  E.  489 — Stephen,  J. 

Hotice  of  Purpose  for  which  Goods  sent  J — 
The  plaintiff  delivered  a  parcel  at  a  receiving 
office  of  the  defendants  in  London,  addressed  to 
u  W.  H.  M.,  Stand  23,  Show  Ground,  Lichfield, 
Staffordshire  ;  van  train."  Nothing  was  said  by 
the  person  who  delivered  the  parcel  at  the  re- 
ceiving office  as  to  the  purpose  for  which  it  was 
being  sent  to  Lichfield,  or  to  draw  attention  to 
the  label : — Held,  that  the  label  was  sufficient 
notice  to  the  defendants  that  the  good6  were 
being  sent  to  a  show,  and  that  the  plaintiffs 
were  entitled  to  recover  damages  for  loss  of  pro- 
fits and  expenses  incurred  by  the  goods  being 
delayed,  and  not  delivered  at  Lichfield  in  time 
for  the  show.  Jameson  v.  Midland  Railway,  50 
L.  T.  426-D. 

A  parcel  of  samples  was  delivered  to  the 
defendants,  a  railway  company,  to  be  forwarded 
to  the  plaintiffs.  By  the  negligence  of  the 
■defendants,  who  had  notice  that  the  parcel  con- 
tained samples,  it  was  delayed  on  the  way  until 
the  season  at  which  the  samples  could  be  used 
for  procuring  orders  had  elapsed,  and  they  had 
in  consequence  become  valueless.  The  plaintiffs 
could  not  have  procured  similar  samples  in  the 
market.  In  an  action  for  the  non-delivery  in  a 
reasonable  time  : — Held,  that  the  plaintiffs  were 
•entitled  to  recover  as  damages  the  value  to  them 
of  the  samples  at  the  time  when  they  should 
have  been  delivered.  Schulze  v.  Great  Eastern 
Railway,  19  Q.  B.  D.  30  ;  66  L.  J.,  Q.  B.  442  ; 
57  L.  T.  438  ;  35  W.  R.  683— C.  A. 

Money  paid   to   Settle  Action.]— A   "boat- 


staging  "  or  suspension  platform,  put  up  for  the 
plaintiffs  by  the  defendant  under  a  contract 
between  them,  to  enable  the  plaintiffs  to  paint  a 
house,  fell,  through  being  insecurely  fastened  by 
the  defendant,  and  hurt  a  painter  in  the  employ- 
ment of  the  plaintiffs.    He  brought  an  action 
under  the  Employers'  Liability  Act  (43  fc  44 
Vict.  c.  42)  against  the  plaintiffs  for  injuries 
sustained  in  consequence  of  the  defective  state 
of  the  boat-staging.    The  plaintiffs  settled  the 
action  by  paying  to  the  painter  125/.,  and  then 
sued  the  defendant  for  breach  of  his  contract  :— 
Held,  that   the    defendant  was  liable  under 
the  contract ;  but  that,  inasmuch  as  the  plain- 
tiffs had  employed  a  competent  contractor  to  pat 
up  the  boat-staging,  and  there  was,  on  the  facts, 
no  evidence  of  negligence  by  the  plaintiffs,  they 
were  not  liable  to  their  servant  for  the  injury 
he  had  sustained,  and  therefore  the  money  which 
they  had  paid  to  settle  his  action  was  not  re- 
coverable as  damages  from  the  defendant  for  his 
breach  of  contract.    Kiddle  v.  Lovett,  16  Q.  B. 
D.  605;  34  W.R.518-D. 

Notice  of  Bub-sale— Profits— Costs  of  Artta 
by   Bub-vendee.]— The    defendants  contracted 
with  the  plaintiff  to  deliver  goods  to  him  of  a 
particular  shape  and  description  at  certain  prices 
and  by  instalments  at  different  times,    when 
the  contract  was  made  the  defendants  knew  that, 
except  as  to  price,  it  corresponded  with  and  was 
substantially  the  same  as  a  contract  which  the 
plaintiff    had    entered    into    with    a   French 
customer  of  his,  and  that  it  was  made  in  order 
to  enable  the  plaintiff  to  fulfil  such  last-men- 
tioned  contract.    The  defendants  broke  their 
contract,  and  there  being  no  market  for  goodB  of 
the  description  contracted  for,  the  plain  thTs  cus- 
tomer obtained  damages  against  him  in  the  French 
court  to  the  amount  of  28/. : — Held,  in  an  action 
against  the  defendants  for  their  breach  of  con- 
tract, that  the  plaintiff  was  not  only  entitled  to 
recover  as  damages  the  amount  of  profit  he  would 
have  made  had  he  been  able  to  fulfil  his  contract 
with  his  customer,  but  also  damages  in  respect 
of  his  liability  to  such  customer,  and  that  in 
estimating  such   last-mentioned   damages  the 
28/.  which  the  French  court  had  given  might  be 
treated  as  not  an  unreasonable  amount  at  whkh 
such    damages    might    be    assessed.      Mbineer 
Action-  Oesellschaft  v.  Armstrong  (9  L«  B.,  Q.  B. 
473)  approved  of.     Grebcrt-Bitrgnis  v.  Nugent, 
15   Q.   B.   D.   85  ;  54  L.  J.,  Q.  B.   511— C.  A 
Affirming  1  C.  &  E.  337— Denman,  J. 

The  defendant  contracted  for  the  sale  of  coal 
of  a  particular  description  to  the  plaintiffs, 
knowing  that  they  were  buying  such  coal  for  the 

Surpose  of  re-selling  it  as  coal  of  the  same 
escription.  The  plaintiffs  did  so  re-sell  the 
coal.  The  coal  delivered  by  the  defendant  to 
the  plaintiffs  under  the  contract  and  by  them 
delivered  to  their  sub-vendees  did  not  answer 
such  description,  but  this  could  not  be  ascertained 
by  inspection  of  the  coal,  and  only  became 
apparent  upon  its  use  by  the  sub-vendees.  The 
sub-vendees  thereupon  brought  an  action  for 
breach  of  contract  against  the  plaintiffs.  The 
plaintiffs  gave  notice  of  the  action  to  the  defen- 
dants, who,  however,  repudiated  all  liability, 
insisting  that  the  coal  was  according  to  contract. 
The  plaintiffs  defended  the  action  against  them, 
but  at  the  trial  the  verdict  was  that  the  coal 
was  not  according  to  contract,  and  the  sub- 
vendees  accordingly  recovered    damages  from 


605 


DEBTORS    ACT. 


606 


the  plaintiffs.  The  plaintiffs  thereupon  sued  the 
defendant  for  breach  of  contract,  claiming  as 
damages  the  amount  of  the  damages  recovered 
from  them  in  the  action  by  their  sub-vendees, 
and  the  costs  which  had  been  incurred  in  such 
action.  The  defendant  paid  the  amount  of  the 
damages  in  the  previous  action  into  court,  but 
denied  his  liability  in  respect  of  the  costs : — 
Held,  that,  the  defence  of  the  previous  action 
being,  under  the  circumstances,  reasonable,  the 
acts  incurred  by  the  plaintiffs  as  defendants  in 
such  action  were  recoverable  under  the  rule  in 
ffadley  v.  Baxendale  (9  Ex.  341),  as  being 
damages  which  might  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  the  parties, 
at  the  time  when  they  made  the  contract, 
«  the  probable  result  of  a  breach  of  it. 
Baxendale  v.  London,  Chatham  and  Dover 
totitcay  (10  L.  R.,  Ex.  35)  discussed  and 
distinguished.  Hammond  v.  Ifasiey,  20  Q.  B.  D. 
79 ;  67  L.  J.,  Q.  B.  58— C.  A.  See  also  Stroud 
t.  Autin,  ante,  coL  601. 

Iidsmnity— Costs  of  Action.] — Under  a  cove- 
nant to  indemnify  against  all  actions  and  claims 
m  respect  of  the  covenants  of  a  lease,  costs 
properly  incurred  in  reasonably  defending  an 
action  brought  for  a  breach  of  one  of  the  cove- 
nant are  recoverable  as  damages.  Murrell  v. 
fyk,  1  C.  &  E.  80— Williams,  J. 


DANCING. 

See  DISOBDERLY  HOUSE. 


DEATH. 

Ctange  of  Parties  by  Death.]— See  Practice. 
Iridsaee  of  Death.}— See  Insurance. 
PrMunption  of  Law  as  to.]— See  Evidence. 


DEBENTURE. 

See  COMPANY. 


DEBTORS    ACT. 

I.  Committal  in  Default  of  Payment. 
1.  In  what  Case*,  606. 
1  Jurisdiction  and  Practice,  607. 

U.  Persons  in  Fiduciary  Capacity,  609. 


III.  Arrest  of  Person  about  to  quit 

England,  612. 

IV.  Judge's  Order  by  Consent,  612. 
V.  Obtaining  Credit  by  Fraud,  613. 


I.    COMMITTAL  IN  DEFAULT  OF 
PAYMENT. 

1.  In  WHAT  CA8E& 

Married  Woman — Judgment  against  Separate 
Estate.] — A  married  woman  cannot  be  com- 
mitted to  prison  under  s.  5  of  the  Debtors  Act, 
1869,  for  non-payment  of  a  judgment  debt 
recovered  against  her,  payable  out  of  her  sepa- 
rate estate,  under  s.  1,  sub-s.  2,  of  the  Manned 
Women's  Property  Act,  1882.  Form  of  order 
upon  such  a  judgment.  Scott  v.  Morley,  20 
Q.  B.  D.  120  ;  57  L.  JM  Q.  B.  43  ;  67  L.  T.  919  ; 
36  W.  R.  67 ;  52  J.  P.  230 ;  4  M.  B.  R.  286— 
C.  A. 

Where  an  order  was  made  that  a  married 
woman  should  pay  by  instalments  the  amount 
of  a  judgment  against  her,  out  of  her  separate 
estate  not  subject  to  restraint  in  anticipation,  or 
which,  being  so  subject,  was  liable  to  execution 
under  s.  19  of  the  Married  Women's  Property 
Act,  1882,  the  court,  upon  her  default  in  pay- 
ment of  the  instalments,  made  an  order  for  com- 
mittal. Johnstone  v.  Browne,  20  L.  R.,  Ir.  443 
—Ex.  D. 

If  in  the  judgment  execution  is  limited  to 
separate  estate  which  she  is  not  restrained  from 
anticipating,  quaere,  whether  s.  5  of  the  Debtors 
Act,  1869,  applies  at  alL  Meager  v.  Pelleto, 
infra. 

Separate  Estate  with  Restraint  on  Anti- 
cipation.]— Judgment  for  a  debt  and  costs  was 
recovered  against  a  married  woman,  execution 
being,  by  the  terms  of  the  judgment,  limited  to 
her  separate  property  not  subject  to  any  restraint 
upon  anticipation,  unless  by  reason  of  the 
Married  Women's  Property  Act,  1882,  such 
property  should  be  liable  to  execution  notwith- 
standing such  restraint.  Upon  an  application 
for  an  order  of  committal  against  her  under  8.  5 
of  the  Debtors  Act,  1869,  the  only  evidence  of 
her  ability  to  pay  was,  that  since  the  date  of  the 
judgment  she  had  received  sufficient  income  of 
separate  property  subject  to  a  restraint  upon 
anticipation  : — Held,  that  no  order  could  be  made 
against  her  upon  that  evidence,  because  s.  5  did 
not  apply  to  the  judgment.  Drayeott  or  Darra* 
cott  v.  Harruon,  17  Q.  B.  D.  147  ;  34  W.  R.  546 
— D. 

An  order,  under  the  Debtors  Act,  for  payment 
by  instalments,  will  not  be  made  against  a 
married  woman  whose  only  separate  estate  is 
subject  to  restraint  on  anticipation,  even  though, 
since  the  date  of  the  judgment  against  her,  she 
has  received  income  of  the  separate  estate. 
Morgan  v.  Eyre,  20  L.  R.,  Ir.  541— Q.  B.  D. 

Upon  a  judgment  summons  issued  under  s.  5 
of  the  Debtors  Act,  1869,  against  a  married 
woman  who  has  only  separate  estate  which  she 
is  restrained  from  anticipating,  an  order  for  pay- 
ment cannot  be  made  unless  it  is  shown  that, 
since  the  date  of  the  judgment,  she  has  received 
some  of  her  separate  income.    Meager  v.  Pellew, 


607 


DEBTORS    ACT— Committal  in  Default  of  Payment. 


608 


or  Meager j  Ex  parte,  Pelltw,  In  re,  14  Q.  B.  D. 
973  ;  53  L.  T.  67  ;  33  W.  R.  573— C.  A. 

Alimony — Committal  for  Default  in  Payment.] 
— Arrears  of  payments  of  alimony  payable  by 
a  husband  by  virtue  of  an  order  of  tne  Divorce 
Court  made  under  s.  1  of  the  act  29  &  30 
Vict.  c.  32,  constitute  a  debt  enforceable 
under  s.  5  of  the  Debtors  Act,  1869.  Linton  v. 
Linton,  or  Linton,  Ex  parte,  Linton,  In  re,  15 
Q.  B.  D.  239  ;  54  L.  J.,  Q.  B.  529  ;  52  L.  T.  782  ; 
33  W.  R.  714  ;  49  J.  P.  597— C.  A. 

Where  in  an  order  for  payment  of  alimony, 
the  periods  for  payment  are  specified,  an  abso- 
lute order  for  an  attachment  under  the  Debtors 
Act  may  be  made,  without  any  preliminary  order 
for  payment  by  instalments.  Daly  v.  Daly,  17 
L.  R.,  Jr.  372— Mat. 


Payment  by  Instalments.] — On  January 


30, 1888,  an  order  for  alimony  pendente  lite,  and 
on  February  1,  1888,  an  order  for  permanent 
alimony,  was  made  in  the  Probate  and  Divorce 
Division.  The  sum  of  130 J.  being  due  under 
these  orders,  a  judgment  summons  in  respect 
thereof  was  issued  by  the  wife : — Held,  that  a 
receiving  order  in  lieu  of  committal  could  not  be 
made  by  the  court  against  the  husband  under  s. 
5  of  the  Debtors  Act,  1869,  and  that  an  order 
directing  payment  by  monthly  instalments  of 
102.  should  be  made.  Ottoay,  Ex  parte,  Otway, 
In  re,  58  L.  T.  8S5  ;  36  W.  R.  698  ;  5  M.  B.  R. 
115 — Cave,  J. 

Damages — Non-payment  in  Divorce  Matter.] 
— The  court  having  ordered  damages  to  be  paid 
into  the  registry,  and  proceedings  in  default 
being  impracticable,  as  there  was  no  one  to 
institute  them,  the  court  ordered  the  damages  to 
be  paid  to  the  petitioner,  he  undertaking  to  pay 
them  into  court.  Qyte  v.  Oytc,  10  P.  D.  185  ; 
34  W.  R.  47— Hannen,  P. 

Security  for  Costs  in  Divorce  Hatter.] — Not- 
withstanding the  provisions  of  the  Debtors  Act, 
1869,  a  husband  is  liable  to  attachment  if  he 
does  not  find  security  for  his  wife's  costs  of  suit. 
Lynch  v.  Lynch,  10  P.  D.  183  ;  54  L.  J.,  P.  93  ; 
34  W.  R.  47— Hannen,  P. 

Non-payment  of  Costs.] — A  respondent  being 
in  contempt  for  non-obedience  of  an  order  for 
restitution  of  conjugal  rights,  the  petitioner 
applied  for  a  writ  of  attachment  against  him  : — 
Held,  that  the  writ  could  not  issue  for  non-pay- 
ment of  costs.  Weldon  v.  Weldon,  54  L.  J.,  P. 
60  ;  52  L.  T.  233  ;  33  W.  R.  427  ;  49  J.  P.  517— 
C.  A.    Affirming  10  P.  D.  72— Hannen,  P. 


2.  Jurisdiction  and  Pb actios. 

Affidavit  of  Means  and  Denial  of  Satisfaction 
of  Debt.] — Upon  an  application  to  commit  to 
prison  under  the  Debtors  Act  (Ireland),  1872, 
s.  6,  for  non-payment  of  instalments  previously 
ordered  to  be  paid,  there  must  be  an  affidavit 
showing  that  at  the  time  of  such  application 
the  debtor  is  still  in  a  position  to  pay  the 
instalments.  Davii  v.  Simmonds,  14  L.  ft.,  Ir. 
364— Q.  B.  D. 

Where  a  party  desires  to  enforce  by  commit- 
ment in  the  High  Court  a  judgment  of  a  com- 
petent court,  he  need  not  file  an  affidavit  in 


denial  of  satisfaction.      XichoUon,  Ex  parte, 
Stone,  In  re,  1  M.  B.  R.  177— Cave,  J. 

"  The  Means  to  Pay."] — For  the  purpose  of 
determining  whether  a  judgment  debtor  has  had 
"  the  means  to  pay "  the  judgment  debt,  with 
the  view  of  making  an  order  for  his  committal 
under  sub-s.  2  of  s.  5  of  the  Debtors  Act,  1869, 
money  derived  from  a  gift  may  be  taken  into 
account.  It  is  not  necessary  that  the  "means 
to  pay"  should  have  been  derived  from  the 
debtor's  earnings,  or  from  a  fixed  income. 
Kotter,  Ex  parte,  Park,  In  re,  or  Koster  v.  Pari, 
14  Q.  B.  D.  597  ;  54  L.  J.,  Q.  B.  889 ;  52  L.  T. 
946  ;  33  W.  R.  606  ;  2  M.  B.  R.  35— Per  Cotton 
and  Lindley,  L.JJ. 

Ability  only  to  Pay  part.] — Where  a  person 
from  whom  money  is  due  witnin  the  meaning  of 
8.  5  of  the  Debtors  Act,  1869,  has  means  to  pay 
part  only  of  the  sum  due,  and  has  failed  to  pay 
that  part,  a  court  is  not  precluded  from  making 
an  order  under  the  section  by  reason  only  that 
he  is  unable  to  pay  the  entire  sum.  Fryer,  Ex 
parte,  Fryer,  In  re,  17  Q.  B.  D.  718 ;  55  L.  J., 
Q.  B.  478  ;  55  L.  T.  276  ;  34  W.  R.  766 ;  3 
M.  B.  R.  231— C.  A. 

Past  Default  or  Anticipatory  Order.]— Judg- 
ment having  been  recovered  against  a  defendant 
in  a  county  court  an  order  for  payment  of  20/. 
was  made.  The  defendant  having  made  default 
in  payment  thereof  a  judgment  summons  was 
taken  out,  and  the  judge  having  heard  evidence 
and  being  satisfied  as  to  the  defendant's  means 
made  an  order  to  commit  him  to  prison  for  ten 
days,  but  directed  that  the  warrant  should  be 
suspended  if  the  debtor  paid  instalments  of  42.  a 
month,  the  first  payment  to  be  made  in  fourteen 
days : — Held,  that  the  order  was  in  reality  an 
order  for  commitment  in  respect  of  the  past  de- 
fault in  payment  of  the  20/.,  and  not  an  antici- 
patory order  for  commitment  in  respect  of  any 
future  default  ;  and  that  this  being  so  the  order 
was  valid  under  the  Debtors  Act,  1869  (32  k  33 
Vict.  c.  62),  s.  5.  Stonor  v.  Fowle,  13  App.  Cafc 
20  ;  57  L.  J.,  Q.  B.  387  ;  58  L.  T.  1 ;  36  W.  B. 
742  ;  62  J.  P.  228— H.  L.  (E.). 

Order,  how  made  in  County  Court]  —  See 
County  Coubt  (Jurisdiction). 

Jurisdiction  to  make  second  Order  on  Can- 
cellation of  first.] — A  defendant  in  a  county 
court  having  made  default  in  payment  of  .20/.  doe 
under  a  judgment,  an  order  was  made  to  commit 
him  to  prison.  He  was,  however,  never  arrested 
nor  imprisoned  under  the  order,  which,  according 
to  Ord.  XXV.  r.  33  of  the  County  Court  Bales, 
1886,  expired  when  a  year  had  elapsed  from  its 
date  : — Held,  upon  motion  for  prohibition,  that 
as  no  arrest  nor  imprisonment  had  ever  taken 
place  upon  this  order  before  its  expiration,  and 
as  the  defendant  was  still  in  default,  the  county 
court  judge  had  power  to  make  a  second  order 
of  commitment.  Reg,  v.  Stonor  or  Brmpten 
County  Court  Judge,  57  L.  J.,  Q.  B.  510;  & 
L.  T.  669— D. 

Judgment  in  Superior  Court— Jurisdiction  of 
County  Court  Judge.] — A  county  court  judge 
has  power  to  enforce  the  order  or  judgment  of 
the  High  Court,  where  the  High  Court  has 
made  no  order  for  payment  by  instalments,  by 


609 


DEBTORS    ACT— Persons  in  a  Fiduciary  Capacity. 


610 


directing  payment  by  instalments  of  the  amount 
doe  under  such  order  or  judgment,  and  to 
commit  the  debtor  in  default.  But  where  the 
High  Court  has  made  an  order  for  payment  by 
instalments  the  county  court  has  no  power  to 
rirr  that  order.  Addington,  Ex  parte.  Ives,  In 
n,  16  Q.  B.  D.  665  ;  65  L.  J..  Q.  B.  246  ;  54  L.  T. 
877 ;  34  W.  R.  593  ;  3  M.  B.  R.  83— Cave,  J. 

The  plaintiff  in  an  action  in  tho  High  Court 
obtained  an  order  for  payment  of  costs  by  the 
defendant,  who  agreed  to  pay  by  instalments. 
The  defendant  having  failed  to  pay,  the  plaintiff 
applied  to  the  judge  of  the  county  court  of 
the  district  in  which  the  defendant  resided  for 
to  order  under  s.  5  of  the  Debtors  Act,  1869 
(32  k  33  Vict  a  62)  for  payment  by  instal- 
nents,  and,  upon  the  judge  refusing  to  make 
the  order  upon  the  ground  that  he  had  no 
jaradJction,  applied  to  the  bankruptcy  judge 
in  chambers  : — Held,  that  the  county  court 
judge  had  jurisdiction  to  make  the  order  asked 
for.  Washer  v.  Elliott  (1  C.  P.  D.  169)  ex- 
plained,    lb. 

Appeal  from  High  Court.]— By  the  operation 
of  the  Bankruptcy  Act,  1883,  s.  103,  the  jurisdic- 
tion and  powers  under  the  Debtors  Act,  1869,  a. 
5,  formerly  vested  in  the  High  Court,  are 
uagned  to,  and  are  to  be  exercised  by  the  judge 
to  whom  bankruptcy  business  is  assigned.  By  s. 
104,  an  appeal  is  given  in  bankruptcy  matters 
from  the  order  of  the  High  Court  to  the  Court 
of  Appeal  An  appeal  from  an  order  of  the 
jrige  to  whom  bankruptcy  business  is  assigned 
upon  an  application  under  8.  5  of  the  Debtors 
Act,  1869,  therefore,  now  lies  to  the  Court  of 
Appeal,  and  not  to  a  Divisional  Court.  Genese, 
&  P*rte,  Laseelle*,  In  re,  63  L.  J.,  Q.  B.  678  ; 
32  W.  R.  794 ;  1  ML  B.  R.  183— D. 

Meet  of  Receiving  Order— Arrest]— Having 
regard  'to  the  terms  of  s.  9  of  the  Bankruptcy 
Act,  1883,  as  to  the  effect  of  a  receiving  order  in 
protecting  a  debtor  from  arrest,  the  order  must 
be  deemed  to  have  been  "  made  "  on  the  day  it 
vis  pronounced,  and  therefore  as  protecting  the 
debtor  as  from  that  day.  Therefore,  where  a 
debtor  had  been  arrested  under  an  order  of  the 
Chancery  Division  made  after  the  date  of  a  re- 
ceiving order  pronounced  before,  but  not  drawn 
up  and  signed  by  the  registrar  until  after  the 
•nest,  he  was  ordered  to  be  discharged,  notwith- 
rtanding  that  he  had  by  his  counsel  submitted 
to  the  order  of  attachment  Manning,  In  re,  30 
Ch.  D.  480 ;  55  L.  J.,  Ch.  613  ;  64  L.  T.  33  ;  34 
W.B.111— C.A. 

After  a  commitment  order  had  been  issued  by 
the  Mayor's  Court  in  London  against  a  judgment 
debtor  for  default  in  payment  of  an  instalment 
of  the  judgment  debt,  a  receiving  order  was 
°ade  against  him  under  s.  9  of  the  Bankruptcy 
Act,  1883  : — Held,  that  the  commitment  order 
*is  not  a  process  for  contempt  of  court,  but  to 
enforce  payment  of  a  debt  provable  in  the  bank- 
ruptcy, and  that  after  the  making  of  the  receiv- 
ing order  the  debtor  was  privileged  from  arrest. 
Ofieial  Receiver,  Ex  parte,  Ryley,  In  ret  16 
Q  B.  D.  329  ;  64  L.  J.T  Q.  B.  420  ;  33  W.  R.  656  ; 
J  M.  B.  R.  171— Cave,  J. 

11.  PIRSON8  IN  A  FIDUCIARY  CAPACITY. 


to   be   Considered.  J — To   ascertain 
whether  a  person  ordered  to  pay  and  making 


default  fills  the  character  of  (a)  trustee,  (&)  per- 
son acting  in  a  fiduciary  capacity,  or  (t)  solicitor, 
within  the  exception  of  the  Debtors  Act,  1869, 
8.  4,  sub-ss.  3  and  4,  three  periods  may  possibly 
be  material — namely,  (1)  when  the  act  on  which 
the  order  was  founded  was  done,  (2)  when  tha 
order  was  made,  (3)  when  the  default  was  com- 
mitted— in  cases  (a)  and  (6)  the  period  to  be 
looked  at  is  the  first ;  in  case  (<?)>  if  not  the  first, 
at  the  latest  the  second  period.  Per  Fry,  L.  J., 
in  cases  (a),  (ft),  and  (e),  the  proper  period  is 
the  first.  Strong,  In  re,  32  Ch.  D.  342 ;  65 
L.  J.,  Ch.  553  ;  55  L.  T.  3 ;  34  W.  R.  614  ;  61 
J.  P.  6— C.  A. 

Defaulting  Trustee— Admission  made  by  mere 
Debtor.] — By  an  order  of  June.  1878,  compro- 
mising an  action  brought  to  recover  from  B. 
moneys  which  he  had  borrowed  from  A.  at  inte- 
rest, B.  "by  his  counsel  admitting  that  the 
principal  sum   in   his   hands   claimed   in   the 

action  amounted  to I."  it  was  ordered  in 

effect  that  he  should  hold  1 ,7  02.,  part  thereof, 
on  certain  trusts,  and  should  be  at  liberty  to 
retain  it  during  the  life  of  C,  paying  interest 
for  it,  and  liberty  was  given  to  apply  for  pay- 
ment of  the  principal  aud  interest  if  default 
was  made  in  payment  of  interest.  Default 
having  been  made,  B.  in  1887  was  ordered  to 
pay  the  money  into  court,  and  on  his  failing  to 
do  so,  leave  to  issue  an  attachment  was  applied 
for.  He  deposed  that  when  the  order  of  1878 
was  made  be  had  not  in  his  hands  any  money  or 
investments  representing  the  sum  owing  from 
him  or  any  part  thereof  :— Held,  that  although 
B.  up  to  the  order  of  1878  was  only  a  debtor  and 
not  a  trustee,  he  must,  having  regard  to  his 
admission,  be  held  upon  the  making  of  that 
order,  to  have  had  the  money  in  his  hands  as 
trustee — that  he  therefore  came  within  the  ex- 
ception in  s.  4,  sub-s.  3,  of  the  Debtors  Act, 
1869,  and  was  liable  to  attachment  for  non-pay- 
ment. Preston  v.  Ether ingttm,  37  Ch.  D.  104  ; 
57  L.  J.,  Ch.  176  ;  68  L.  T.  318  ;  36  W.  R.  49— 
C.A. 

Receiver  and  Manager— Administration  Ac- 
tion— No  Means.] — A  member  of  parliament 
was  appointed  receiver  and  manager  of  the  busi- 
ness of  a  testator  in  an  administration  action,, 
but  was  afterwards  discharged  and  ordered  to 
pass  his  accounts  and  pay  the  balance  due  from 
him  into  court  Subsequently  an  order  waa 
made  by  which  he  was  directed  to  pay  a  certain 
sum  found  due  from  him  into  court.  A  motion 
to  attach  him  for  default  in  payment  was  made  ; 
but  on  payment  of  part  of  the  sum  due  from 
him,  the  motion  stood  over  by  arrangement.  On 
the  motion  coming  on  for  hearing,  he  made  an 
affidavit  to  the  effect  that  the  amount  paid  was 
raised  by  a  friend ;  that  he  had  no  means,  and 
if  a  writ  of  attachment  were  issued  against  him 
he  should  be  unable  to  pay : — Held,  that  he  was 
liable  to  imprisonment  as  a  person  acting  in  a 
fiduciary  capacity  within  s.  4,  sub-s.  3,  of  the 
Debtors  Act,  1869 ;  that  it  was  not  a  case  in 
which  the  court  would  refuse  to  attach,  acting 
on  the  discretion  given  it  by  the  Debtors  Act, 
1878,  s.  1.  Gent,  In  re,  Gent-DavU  v.  Harris,  40 
Ch.  D.  190  ;  58  L.  J.,  Ch.  162  ;  60  L.  T.  355  ;  37 
W.  R.  151— North,  J. 

Member  of  Parliament.] — Parliamentary  pri- 
vilege has  no  application  to  a  case  under  s.  4, 


611 


DEBTORS    ACT— Judge's  Order. 


612 


sub-e.  8,  of  the  Debtors  Act,  1869,  and  therefore 
a  member  of  parliament  may  be  imprisoned. 
lb. 

Solicitor.] — A  solicitor  received  money  belong- 
ing to  a  client,  and  paid  it  in  to  his  own  banking 
account.  Afterwards  an  order  directing  him  to 
pay  the  money  to  the  client  was  made  by  the 
court.  After  the  making  of  this  order  the  client 
signed  an  agreement  to  accept  payment  by  in- 
stalments. Default  was  made  in  payment  of  the 
instalments,  and  a  further  order  for  payment 
was  made.  This  order  haying  been  disobeyed, 
an  order  for  attachment  against  the  solicitor  was 
made.  No  order  had  been  made  calling  on  the 
solicitor  to  answer  affidavits,  but  the  matter  had 
been  referred  to  the  master,  who  had  reported 
that  the  money  was  due  to  the  client : — Held, 
that  the  case  was  within  the  fourth  exception  in 
32  k  33  Vict  c.  62,  s.  4,  and  therefore  the  soli- 
citor was  liable  to  imprisonment,  and  the  order 
of  attachment  was  rightly  made,  and  must  be 
restored.  Dudley,  In  re,  Monet,  Ex  parte,  12 
Q.  B.  D.  44  ;  63  L.  J.,  Q.  B.  16  ;  49  L.  T.  737  ; 
32  W.  R.  264—0.  A. 


Town  Agent  of  Country  Solicitor.] — A 


solicitor,  the  London  agent  of  a  country  solicitor, 
made  default  in  payment  of  a  sum  ordered  to  be 
paid  by  him  in  an  action  for  an  account  of  his 
agency  : — Held,  that  the  defendant  was  liable  to 
imprisonment  under  s.  4,  sub-s.  3,  of  the  Debtors 
Act,  1869,  as  a  person  acting  in  a  fiduciary 
capacity,  but  not  liable  under  s.  4,  sub-s.  4,  as  a 
solicitor  ordered  to  pay  in  bis  capacity  of  officer 
to  the  court.  Litchfield  v.  Jones,  36  Ch.  D.  530 ; 
57  L.  J.,  Ch.  100  ;  58  L.  T.  20  ;  36  W.  R.  397— 
North,  J. 

Auctioneer — Money  received  from  Sale.] — An 
auctioneer  is  a  person  acting  in  a  fiduciary  capa- 
city within  the  meaning  of  the  Debtors  Act, 
1869,  s.  4,  sub-s.  3,  and  if  he  makes  default  in 
payment  of  the  money  produced  by  the  sale  of 
goods  entrusted  to  him  for  sale  when  ordered  to 
pay  it  by  a  Court  of  Equity  he  is  liable  to  attach- 
ment, whether  he  still  holds  the  money  or  has 
parted  with  it.  Crowther  v.  EI  good,  34  Ch.  D. 
€91  ;  56  L.  J.,  Ch.  416  ;  56  L.  T.  415  ;  36  W.  R. 
369— C.  A. 

Order  on  Administratrix  to  Pay  over  to 
Executor.] — Letters  of  administration  had  been 
granted  to  the  widow  of  a  deceased  person  upon 
the  suggestion  of  intestacy,  and  she  had  received 
a  sum  of  money,  part  of  the  deceased's  property. 
The  letters  of  administration  were  subsequently 
called  in,  in  an  action  propounding  a  will  of  the 
deceased,  and  in  that  action  she  was  ordered  to 
pay  the  sum  of  money  to  the  administrator 
pending  suit,  which  order  she  had  not  obeyed  : — 
Held,  that  she  was  not  protected  by  the  Debtors 
Act,  1869,  and  therefore  was  liable  to  attach- 
ment. Tinnuchi  v.  Smart,  10  P.  D.  184  ;  64 
L.  J.,  P.  92  ;  34  W.  R.  46— Butt,  J. 

Defaulting  Exeoutor — Possession  or  Control — 
Principal  and  Interest] — An  executor  making 
default  in  payment  of  a  sum  of  money  found 
due  from  him  in  an  administration  action,  and 
which  he  has  been  ordered  to  pay  into  court,  is 
within  the  third  exception  to  s.  4  of  the  Debtors 
Act,  1869,  notwithstanding  that  the  sum  consists 


of  a  debt  which  had  been  owing  to  the  testator 
during  his  life,  if  the  executor  had  been  in  a 
fiduciary  relation  to  the  testator  in  respect 
thereof.  But  it  must  be  shown  that  the  money 
ordered  to  be  paid  in  had  been  in  the  executor's 
possession  or  under  his  control  Therefore, 
where  the  order  directs  payment  of  a  ram  com- 
posed of  principal  and  interest  not  distinguished, 
an  attachment  cannot  be  issued  because  bo  much 
of  the  sum  as  represents  interest  cannot  be  said 
to  have  been  in  his  possession  or  under  his  eon* 
trol.  HieJiey,  In  re,  Hickey  v.  Calmer,  55  L.  T. 
688  ;  35  W.  R.  63— Kay,  J. 

Application  for  Writ  by  Person  not  in  potita 
of  Cestui  que  Trust.]— The  special  remedy 
afforded  by  the  Debtors  Act,  1869,  in  respect 
of  default  in  payment  by  a  trustee,  is  a  remedy 
intended  to  be  given  only  as  between  trustee 
and  cestui  que  trust,  and  is  not  a  remedy  for  a 
mere  creditor,  where  the  person  against  whom 
the  remedy  is  sought  to  be  asserted  is  not  a 
trustee  for  such  creditor.  Firmin,  In  re,  Lmin 
and  County  Banking  Company  v.  Fin***,  57 
L.  T.  45— Kay,  J. 

Appeal  from  Discretion  of  Judge.  ] —When  i 
judge  on  an  application  for  leave  to  issue  a  writ 
of  attachment  against  a  trustee,  makes  an  order 
for  attachment  in  the  exercise  of  the  discretion 
given  to  him  by  the  Debtors  Act,  1878,  the  Conit 
of  Appeal  will  not  interfere  on  the  merits. 
Preston  v.  Etherington,  supra. 


III.     ARREST  OF  PER80N  ABOUT  TO 
QUIT  ENGLAND. 

Debt  payable  in  future— Default  by  Trust*.] 
— An  order  was  made  that  a  trustee  should 
within  seven  days  after  service  of  the  order 
pay  to  his  cestui  que  trust,  the  plaintiff,  * 
sum  found  due  to  him  by  the  chief  clerk's 
certificate.  The  plaintiff  could  not  find  the 
trustee  so  as  to  serve  the  order,  and  applied  for 
a  writ  of  ne  exeat  on  the  ground  that  the  trustee 
was  about  to  go  out  of  the  jurisdiction  :— Held, 
that  the  case  did  not  fall  within  the  third  ex- 
ception in  s.  4  of  the  Debtors  Act,  1869,  the 
trustee  not  being  in  default,  as  the  order  only 
directed  payment  after  service  and  had  not  been 
served,  and  that  as  the  debt  was  not  now  doe 
and  payable  a  writ  of  ne  exeat  could  not  be 
granted.  Colverson  v.  Bloom  field,  29  Ch.  D. 
341  ;  54  L.  J.,  Ch.  817  ;  52  L.  T.  478  ;  S3  W.  B. 
889— C.  A. 


IV.    JUDGE'S  ORDER  BY  CONSENT. 

What  is.] — An  order  made  by  consent  at  the 
trial  of  an  action  on  a  promissory  note,  that  the 
defence  be  withdrawn,  and  that  the  defendant  do 
pay  to  the  plaintiff  a  specified  sum  and  taxed  costs: 
— Held,  not  to  be  a  "judge's  order  made  by  con- 
sent" within  s.  27  of  the  Debtors  Act,  1869. 
Lennox,  Ex  parte,  Lennox,  In  re,  16  Q.  &  D. 
315  ;  55  L.  J.,  Q.  B.  45  ;  54  L.  T.  452  ;  34  W.  R. 
51— C.  A. 

Failure  to  file  Order— Judgment  not  void  si 
against  Judgment  Debtor.]— The  27th  section  of 
the  Debtors  Act,  1869  (32  &  33  Vict  c.  62),  pro* 


618 


DECIDED    CASES. 


614 


vides  that  a  judge's  order  for  judgment  made  by 

consent  of  the  defendant  in  a  personal  action 

shall  be  filed  in  the  Court  of  Queen's  Bench  in 

the  manner  required   by  the   section  within 

twenty-one  days   after    the    making    thereof, 

"otherwise  the  order  and  any  judgment  signed 

or  entered  np  thereon,  and  any  execution  issued 

or  taken  oat  on  sach  judgment,  shall  be  void :  " 

—Held,  that  the  effect  of  non-compliance  with 

the  requirements  of  the  section  is  only  to  render 

inch  an  order  and  judgment  void  as  against  the 

creditors  of  such  defendant,  but  not  as  against 

himself ;  and,  therefore,  that  a  defendant  who 

had  consented  to  such  an  order  could  not  get 

the  judgment  signed  upon  it  set  aside  on  the 

ground  that  the  order  had  not  been  filed  in 

accordance  with  the  section.     Gowan  v.  Wright, 

18  Q.  B.  D.  201  ;  56  L.  J.,  Q.  B.  131  ;  35  W.  R. 

»7-C.A 

Where  a  judgment  obtained  by  consent  is  void 
for  non-compliance  with  the  provisions  of  32  k 
33  Viet  c.  62,  s.  27,  the  court  will  refuse  to  grant 
leave  to  issue  execution  upon  and  in  pursuance 
of  Old.  XLIT.  r.  23.  The  defendant  against 
whom  the  judgment  is  sought  to  be  issued  is 
not  estopped  from  setting  up  the  invalidity  of 
the  judgment  merely  on  the  ground  that  it  had 
not  been  set  aside.  Janes  v.  Jag  gar,  54  L.  T. 
731— D.    But  see  preceding  case. 

—  Payment  by  Garnishee  under  void  Judg- 
■atj— The  defendant  in  an  action  consented 
to  a  judge's  order  for  judgment  against  him, 
vhich  was  accordingly  signed,  and,  a  garnishee 
order  having  been  made  upon  the  judgment,  the 
garnishee  paid  the  debt  attached  to  the  judgment 
creditors  before  the  expiration  of   twenty-one 
days  from  the  date  of  the  making  of  the  judge's 
order.   The  order  was  not  filed  as  required  by 
i  fl  of  the  Debtors  Act,  1869.    The  defendant 
subsequently  committed  an  act  of  bankruptcy, 
and  was  thereupon  adjudged  bankrupt : — Held, 
that,  although  the  moneys  attached  under  the 
judgment  had  already  been  paid  to  the  judgment 
creditors  before  the  act  of  bankruptcy,  neverthe- 
less, the  judgment  being  avoided  by  failure  to 
fie  the  judge's  order,  the  trustee  in  bankruptcy 
was  entitled    to  recover  from   the   judgment 
creditors   the   amount    paid  to  them    by  the 
garnishee  as  money  received  to  his  use.    Brown, 
St  parte,  Smith,  In  re,  20  Q.  B.  D.  321 ;  57  L.  J., 
4B.212;  36  W.  B.  403— C.  A. 

m Bankruptcy  Notice.] — Where  a  creditor 

it  whose  favour  a  judgment  has  been  entered  up 
hy  consent  omits  to  file  the  judge's  order  in 
Accordance  with  s.  27  of  the  Debtors  Act,  1869, 
he  is  nevertheless  entitled  to  serve  the  debtor 
with  a  bankruptcy  notice  founded  on  such  judg- 
ment Chest,  Ex  parte,  Russell,  In  re,  37  W.  B. 
21 ;  5  M.  B.  B.  258— C.  A. 


V.    OBTAINING  CBEDIT  BY  FRAUD. 

HaViemey  of  Indictment}— See  Beg.  v.  Pierce, 
sate,  coL  572. 


DEBTOR'S   SUMMONS. 

Sse  BANKRUPTCY. 


DEBTS. 


Assignment  of.]—  See  Assignment. 
Attachment  of.]— See  Attachment. 
Payment  of.]— See  Payment. 


DECEIT. 


See  FRAUD. 


Misrepresentation  in  Prospectus.]—  See  Com- 
pany (Pbospectus). 


DECIDED   CASES. 

Weekly  Notes.]— The  Court  of  Appeal  does 
not  allow  the  Weekly  Notes  to  be  read  as  an 
authority.  Pooley's  Trustee  v.  Whetham,  33 
Ch.  D.  77— Per  Cotton,  L.J. 

Case  in  the  "  Times  "—Verification  by  Affi- 
davit.]— It  was  proposed  on  the  hearing  of  a 
case  in  the  Court  of  Appeal  to  refer  to  a  report 
of  a  case  from  the  "Times,"  but  it  was  only 
allowed  to  be  read  after  having  been  verified  by 
an  affidavit  of  the  barrister  who  had  acted  as 
the  "  Times "  reporter.  Walter  v.  Emmott,  64 
L.  J.,  Ch.  1061,  n.— C.  A. 

Citing  Text-books.]— It  is  to  my  mind  much 
to  be  regretted,  and  it  is  a  regret  which  I  believe 
every  judge  on  the  bench  shares,  that  text-books 
are  more  and  more  quoted  in  court — I  mean  of 
course  text-books  by  living  authors — and  some 
judges  have  gone  so  far  as  to  say  that  they  shall 
not  be  quoted.  Union  Bank  v.  Munster,  37  Ch. 
D.  51  ;  57  L.  J.,  Ch.  124  ;  57  L.  T.  877  ;  52  J.  P. 
453— Kekewich,  J. 

House  of  Lords  Decision  on  English  Case — 
Effect  on  Scotch  Case.]  —  A  decision  of  this 
House  in  an  English  case  ought  to  be  held  con- 
clusive in  Scotland  as  well  as  England,  as  to 
the  questions  of  English  law  and  English  juris- 
diction which  it  determined.  It  cannot,  of 
course,  conclude  any  question  of  Scottish  law, 
or  as  to  the  jurisdiction  of  any  Scottish  court  in 
Scotland.  So  far  as  it  may  proceed  upon  prin- 
ciples of  general  jurisprudence,  it  ought  to  have 
weight  in  Scotland  ;  as  a  Bimilar  judgment  of 
this  House  on  a  (Scotch  appeal  ought  to  have 
weight  in  England.  Ewing  v.  Orr-Ewing,  10 
App.  Cas.  499  ;  53  L.  T.  826— Per  Lord  Selborne, 
L.C. 

Binding  Character  of  Decisions  of  Court  of 
Session.] — A  decision  of  the  court  of  session  in 
Scotland  is  not  binding  upon  a  divisional  court 
in  England,  not  being  a  court  of  co-ordinate 
jurisdiction ;  and  the  inconvenience  which  might 
result  from  a  difference  between  English  and 
Scotch  courts  on  the  construction  of  an  act  of 

X  2 


615 


DECIDED    CASES. 


616 


Parliament  will  not  prevent  the  English  couit 
from  differing  from  such  previous  decision. 
Morgan  v.  Londcn  General  Omnibus  Company, 
12  Q.  B.  D.  201  ;  50  L.  T.  687  ;  32  W.  R.  416 
— D. 

Binding  Character  of  Decisions  of  Privy 
Council.] — It  is  true  that  the  decisions  of  the 
Privy  Council  are  not  theoretically  binding  on 
the  High  Court ;  but  in  case  of  mercantile  and  ad- 
miralty law,  where  the  same  principles  are  pro- 
fessedly followed  in  the  colonies  and  in  this 
country,  it  is,  to  say  the  least,  highly  undesirable 
that  there  should  be  any  conflict  between  the 
decisions  of  the  Judicial  Committee  and  those 
of  the  High  Court  or  Courts  of  Appeal  in  this 
country.  The  City  of  Chester,  9  P.  D.  207  ;  53 
L.  J.,  P.  103  :  51  L.  T.  485  ;  83  W.  R.  Ill  ;  5 
ABp.  M.  C.  320— Per  Lindley,  L.J. 

Binding  Character  of  old  Decision!.] — Where 
a  decision  has  been  frequently  questioned,  though 
not  overruled,  the  fact  that  it  has  stood  for  twelve 
years  without  being  authoritatively  overruled, 
does  not  bind  a  court  of  error  to  follow  it.  Pear- 
son v.  Pearson,  27  Ch.  D.  145  ;  54  L.  J.,  Ch.  32  ; 
51  L.  T.  311  ;  32  W.R.  1006— Per  Baggallay,  L.J. 

Where  there  has  been  a  deliberate  unappealed 
decision  of  a  court  with  regard  to  the  effect  of 
a  condition  in  a  common  form  of  contract  which 
has  become  known  to  all  persons  who  have  to 
deal  with  such  matters,  and  has  been  acted  on 
for  eighteen  years,  it  has  always  been  the  legal 
practice,  even  of  courts  of  eiror,  to  follow  such 
decisions,  even  though  they  would  not,  perhaps, 
have  given  the  same  decision  had  the  case  come 
originally  before  them.  Palmer  v.  Johnson,  13 
Q.  B.  D.  355  ;  53  L.  J.,  Q.  B.  348  ;  51  L.  T.  211 ; 
33  W.  R.  36— Per  Brett,  M.R. 

Where  documents  are  in  daily  use  in  mercan- 
tile affairs,  without  any  substantial  difference  in 
form  from  time  to  time,  it  is  most  material  thtt 
the  construction  which  was  given  to  them  years 
ago,  and  which  has  from  that  time  been  accepted 
in  the  courts  of  law,  and  in  the  mercantile 
world,  should  not  be  in  the  least  altered,  because 
all  subbequent  contracts  have  been  made  on  the 
faith  of  the  decisions.  Therefore,  whether  one 
thinks  that  one  would  oneself  have  come  to  the 
same  conclusion  as  the  judges  did  in  the  be- 
ginning is  immaterial.  One  ought  to  adhere 
strictly  to  the  construction  which  has  been  put 
upon  such  documents.  Pandorf  v.  Hamilton, 
17  Q.  B.  D.  674  ;  55  L.  J.,  Q.  B.  546  ;  55  L.  T. 
499  ;  35  W.  R.  70  ;  6  Asp.  M.  C.  44— Per  Esher, 
(Lord),  M.R. 

Jf  the  question  were  doubtful  I  should  hesi- 
tate very  long  before  1  laid  down  a  different 
rule  of  construction  in  relation  to  sections  of  the 
Wills  Act  which  have  had  for  many  years  a  par- 
ticular construction  given  to  them ;  because  it 
is  impossible  to  say  how  many  persons  may  have 
acted  upon  the  faith  that  that  construction  was 
correct  and  rested  the  disposal  of  their  property 
upon  that  lelief .  Of  course  if  it  were  clear  that 
the  construction  put  by  the  courts  upon  the  sec- 
tions was  wrong,  it  would  be  our  duty,  disregard- 
ing the  result,  to  express  a  contrary  opinion. 
Airey  v.  Bower,  12  A  pp.  Cas.  269  ;  56  L.  J  ,  Ch. 
742 ;  66  L.  T.  409  ;  35  W.  R.  657— Per  Herschell 
(Lord). 

Rule  of  Procedure.  ]— Where  a  judgment 


contains  a  decision  on  a  rule  of  procedure  which 


has  thus  been  brought  before  the  public,  the  pro- 
fession, and  the  legislatme,  and  remained  undis- 
turbed for  many  years,  and  has  been  acted  upon 
and  dealt,  with  in  statutes  and  rules  of  court, 
even  if  I  dissented  from  it,  1  should  hesitate  to 
overrule  it.  Eraser  v.  Ehrt  n-^erger,  12  Q.  B.  D. 
318  ;  63  L.  J.,  Q.  B.  73— Per  Lrett,  M.R. 

Jurisdiction.] — The  rule  that  governs  us 

in  not  overruling  decisions  of  many  years*  stand- 
ing, on  which  j  ersens  may  have  acted  in  making 
contracts  or  otherwise,  does  not  apply  to  a 
decision  as  to  the  jurisdiction  of  another  court, 
and  there  is  no  reason  why  at  any  distance  of 
time  a  superior  court  should  not  overrule  it. 
Reg.  v.  Edwards,  13  Q.  B.  1).  686 ;  63  L.  Jn 
M.  C.  149  ;  51  L.  T.  586— Per  Loid  Kaher,  M.  R. 

Binding  Character  of  old  Dicta.]— If,  even  in 
the  absence  of  any  judicial  decision,  a  dictum  in 
law  has  been  accepted  and  has  entered  into  con- 
tracts and  dealings,  so  that,  by  not  following  it, 
I  should  be  actually  disturbing  auytbing  which 
had  been  done  in  former  times  over  and 
over  again  on  the  faith  of  this  dictum,  I 
should  ieel  myself  bound  by  it.  Mother*  In  re, 
Jirsher  v.  Rosher,  26  Ch.  D.  821  ;  63  L.  J.,  Ch. 
722  ;  51  L.  T.  785  ;  32  W.  R.  825— Pearson,  J. 

Examination    by    Judge  of    Practice 

in  his  Court.] — 1  do  not  thi.  k  that  a  judge 
would  wish  any  statement  which  he  may 
have  made  in  the  course  of  a  case,  merely  obiter 
and  casually,  to  be  treated  as  ntccssariiy  being 
an  authority  on  the  subject  in  question  ;  but 
when  a  judge  has  thought  it  tectwary  for  the 
purpose  of  a  case  to  make  a  deliberate  examina- 
tion of  the  practice  of  his  couit,  and  to  state 
such  practice,  I  do  not  thiLk  the  authority  of 
such  statement  can  be  gut  rid  of  merely  by 
arguing  that  it  was  not  really  r.ecitsary  for  the 
actual  decision  of  the  case,  d  «•,  JSx  parte,  20 
Q.  B.  D.  19  ;  67  L.  J.,  Q.  B.  103  ;  6b  L.  T.  323 ; 
36  W.  R.  213 ;  62  J.  P.  484—  I  er  Lord  Kaher, 
M.R. 

Binding  Character  of  Decisions  of  Lord  Chan- 
cellor on  Court  of  Appeal.  ]— Although  the  de- 
cibion  of  a  Lord  Chancelior  given  before  the 
Judicature  Act  may  be  overruled  by  the  Court 
of  Appeal,  yet  such  a  course  ought  only  to  be 
taken  exceptionally,  and  in  a  very  stiong  case. 
So  rarely  is  that  done  that  piacucally  the 
decisions  of  a  Lord  Chancellor  and  the  old 
Lords  Justices  are  considered  as  Lindiug  on  the 
Court  of  Appeal.  Watts,  In  re%  Comford  v. 
Elliott,  29  Ch.  D.  953  ;  55  L.  J.,  Ch.  332  ;  63 
L.  T.  426  ;  33  W.  R.  885— Per  Cotton,  L.J. 
S.  P.,  Oard  v.  Commissioners  vf  tewers^  28 
Ch.  D.  509 ;  54  L.  J.,  Ch.  707  ;  52  L.  T.  830— Per 
Baggallay,  L.J. 

Conflicting  Decisions  of  different  Lord  Chan- 
cellors.]— When  we  have  conflicting  decisions  of 
two  Lord  Chancellors  tie  decision  of  the  sob- 
sequent  Lord  Chancellor  is  entitled  to  the  greater 
weight,  because  the  subsequent  Lord  Chancellor 
could  overrule  the  decision  of  the  prior  i-ord 
Chancellor.  Henty  v.  Wrey,  21  t  h.  D.  352  ;  63 
L.  J.,  Ch.  674  ;  47  L.  T.  231 ;  30  W.  R.  860— Per 
Jessel,  M.R. 

Power  of  Full  Court  of  Appeal  to  overrnlo 
Decisions  of  Smaller  Number,  j — lhv  Court  of 


617 


DEED    AND    BOND— Form  and  Contents. 


618 


Appeal  is  one  composed  of  six  members,  and  if 
it  any  time  a  decision  of  a  lesser  number  is 
called  io  q  nation,  and  a  difficulty  arises  about 
the  accuracy  of  it,  I  think  this  court  is  entitled, 
•ttiog  as  a  full  court,  to  decide  whether  we  will 
follow  or  not  the  decihion  arrived  at  by  the 
mailer  number.  Kelly  v.  Kellond,  20  Q.  B.  D. 
572;  57  L.  J..  Q.  B.  330  ;  58  L.  T.  263  ;  36  W.  R. 
365-Per  Lord  Esher,  M.R. 

Bedaira  in  Court  of  Appeal   when   Court 

fully  divided.] — It  was  the  custom  for  each 

of  the  Courts  in    Westminster    Hall    to  hold 

itself  bound  by  a  previous  decision  of  itself  or  of 

a  court  of  co-ordinate  jurisdiction.    But  there  is 

bo  itatote  or  common  law  rule  by  which  one 

court  is  bound  to  abide  by  the  decision  of  another 

of  equal  rank ;  it  does  so  simply  from  what  may  be 

called  the  comity  of  judges.    In  the  same  way, 

there  is  no  common  law  or  statutory  rule  to  oblige 

*  court  to  bow  to  its  own  decisions ;  it  does  so 

Again  on  the  grounds  of  judicial  comity.    But 

when  a  court  is  equally  divided  this  comity  does 

sot  exist,  for  there  is  no  authority  of  the  court 

as  inch,  and  those  who  follow  must  choose  one 

*A  the  two  adverse  opinions.     Tlie  Vera  Cruz,  9 

P.  D.  96 ;  53  L.  J.t  P.  33 ;  51   L.  T.  104 ;  32 

W.  B.  783 ;  5  Asp.  M.  C.  270— Per  Brett,  M.R. 

Bennou  of  Courts  of  Co-ordinate  Jurisdio- 
tiei]— Where  there  is  power  to  appeal  the  courts 
«re  bound  by  t  he  decisions  of  courts  of  co-ordinate 
jurisdiction.  Casson  v.  Churchley,  53  L.  J.,  Q.  B. 
385 ;  50  L.  T.  558 — D.     See  preceding  case. 

According  to  the  comity  of  judicial  tribunals 
in  this  country,  one  court  of  co-ordinate  juris- 
diction should  not,  in  a  casein  which  there  is  an 
Appeal,  differ  from  another  court  of  co-ordinate 
jurisdiction.  Palmer  v.  Johnson,  13  Q.  B.  D. 
*«;  53  U  J.,  Q.  B.  348  ;  61  L.  T.2U  ;  33  W.  R. 
a-Per  Brett,  M.  R. 


DECLARATION. 

See  CRIMINAL    LAW    (PRACTICE). 


DEED   AND  BOND. 

L  Form  and  Contents. 

1.  Execution,  618. 

2.  Alterations,  619. 

3.  Construction,  619. 

4.  Sitting  aside  and  Rectifying   Deeds, 

623. 
a.  Consideration. — See  CONTRACT. 
6.  Evidence  to  Explain, — See  EVIDENCE. 

IL  Registration  of  Deeds,  627. 
HI.  Actions  on  Deeds,  629. 

IV.  Particular  Deeds. 

1.  Title  Deeds,  629. 

2.  Composition  Deed,— See  BANKRUPTCY. 

3.  Power  of  Attorney,— See   POWER  OP 

ATTORNEY. 

V.  Proceedings  on  Bonds,  630. 


I.    FORM  AND  CONTENTS. 
1.  Execution. 

Effect  of  Vote  appended  to  Signature.] — Not 
every  attempt  by  a  form  of  execution  to  restrain 
the  full  operation  of  a  deed  can  be  treated  as  a 
non-execution  of  it.  Where  a  deed  of  assign- 
ment by  debtors  to  a  trustee  for  the  benefit  of 
all  creditors  who  Bhould  execute  the  deed  was 
executed  by  the  plaintiffs,  who  appended  a  note 
that  they  executed  only  in  respect  of  certain 
claims  scheduled  to  the  deed  and  amounting  to 
$73,531,  and  it  appeared  that  subsequently 
thereto  they  received  a  sum  of  money  from  the 
trustee  by  virtue  of  their  execution  of  the  deed : 
— Held,  that  the  plaintiffs  were  bound.  The 
note  did  not  amount  to  a  refusal  to  execute  ;  and 
the  plaintiffs  having  received  payment  under 
the  deed  could  not  be  heard  to  repudiate  it,  and 
deny  their  execution.  Wilkinson  v.  Anglo- 
Calif  ornian  Gold  Mining  Company  (18  Q.  B. 
728)  held  to  be  inapplicable.  Yarmouth  Ex- 
change Bank  v.  Bletlien,  10  App.  Cas.  293 ;  54 
L.  J.,  P.  C.  27  ;  63  L.  T.  537 ;  33  W.  R.  801— 
P.  C. 

Of  Counterpart  presumed.]— D.  in  1824.  agreed 
with  S.  for  the  purchase  of  an  estate,  and  that 
the  purchase-deed  should  contain  a  covenant  by 
D.  that  he,  bis  heirs  and  assigns,  would  pay  to 
S.,  his  executors,  administrators,  and  assigns,  the 
sum  of  6*.  for  each  chaldron  of  coals  gotten  out 
of  the  estate  and  shipped  for  sale.  The  pur- 
chase-deed was  subsequently  executed  by  S.,  but 
not  by  D.  D.t  however,  entered  upon  the  land, 
and  he  and  his  devisees  and  their  assigns  enjoyed 
the  property.  Coal  was  also  got  and  shipped 
for  sale  : — Held,  that  the  execution  by  D.  of  a 
counterpart  of  the  deed  containing  the  covenant 
must  be  presumed,  and  that  the  words  "  shipped 
for  sale  "  in  the  deed  meant  coal  actually  shipped 
for  sale.  Witham  v.  Vane,  32  W.  R.  617— H.  L. 
(E.).    Reversing,  44  L.  T.  718— C.  A. 

Absence  of  Seal.] — The  absence  of  a  seal  from 
deeds  of  reconveyance  which  were  not  proved  to 
have  ever  been  sealed  renders  them  invalid. 
Sandilands,  In  re  (6  L.  R.,  C.  P.  411)  con- 
sidered. Mational  Provincial  Bank  v.  Jackson, 
33  Ch.  D.  1  ;  55  L.  T.  458  ;  34  W.  R.  597— 
C.  A. 

Evidence  of  Sealing  and  Delivery.] — A. 

deposited  with  B.,  his  stockbroker,  the  certifi- 
cates of  shares  in  the  Balkis  Consolidated  Com- 
pany, and  executed  a  blank  transfer  to  secure 
the  balance  of  his  current  account.  The  arti- 
cles of  the  company  required  that  transfers  of 
shares  should  be  made  by  deed.  Shortly  after- 
wards B.  filled  up  the  blank  transfer  with  the 
name  of  L.  as  transferee,  and  deposited  the 
shares  with  L.  as  security  for  money  borrowed, 
as  he  alleged,  in  pursuance  of  the  general  direc- 
tions of  A.  Later  on  B.  closed  A.'s  account  and 
sold  the  shares.  L.,  who  was  willing  that  the 
purchase  should  be  completed,  applied  to  the 
company  to  register  the  transfer  to  himself.  In 
the  meanwhile  A.,  who  had  disputed  B.'s  ac- 
count, had  given  the  company  notice  not  to 
register.  L.  now  moved,  under  the  Companies 
Act,  18K2,  8.  35,  to  rectify  the  register  by  in- 
serting bis  name.  On  production  of  the  transfer 
it  appeared  that  it  contained  no  seal  or  wafer 


1 


619 


DEED    AND    BOND— For???  and  Contents. 


620 


in  the  place  of  a  seal,  but  only  a  mark  on  the  | 
paper  of  the  place  where  the  seal  ought  to  be. ' 
The  transfer  was   witnessed  by  B.'s  clerk  as  . 
having  been  signed,  sealed,  and  delivered  by  A.,  • 
but  the  attesting  witness  did  not  make  any  ' 
affidavit,  and  the  evidence  of  A.  and  B.  as  to 
whether  A.  put  his  finger  on  the  seal  or  not  was 
contradictory : — Held,  that  no  order  could  be 
made  on  the  motion  ;  that  L.  could  have  no  right 
to  be  registered  unless  A.  were  estopped  from 
denying  that  the  transfer  to  L.  was  good,  and 
this  estoppel  could  only  arise  if  the  document 
delivered  to  L.  were  primft  facie  complete  ;  that 
it  was  not  complete  in  the  absence  of  a  seal 
unless  it  was  shown  that  it  had  been  sealed,  and 
for  this  the  evidence  was  insufficient.     Balkis 
Consolidated  Company,  In  re,  58  L.  T.  300 ;  36 
W.  IL  392— North,  J. 

Proof  of.]— See  Evidence. 

Order  by  Court  to  execute.]— An  order  may 
be  made  on  a  party  to  an  action  to  execute  a 
conveyance  of  lands  directed  to  be  sold  in  such 
action,  although  the  conveyance  has  not  been 
settled  in  chambers.  Dougherty  v.  Teaz,  21 
L.  R.,  Ir.  379— V.  C. 

The  Probate  Division  has  jurisdiction  under  s. 
14  of  the  Judicature  Act,  1884,  in  the  event  of 
any  person  neglecting  or  refusing  to  obey  its 
order  to  execute  a  deed,  to  direct  its  execution 
by  any  other  person  whom  it  may  nominate  for 
the  purpose.  Hmoarth  v.  Howarth,  11  P.  D. 
95  ;  65  L.  J.,  P.  49 ;  55  L.  T.  303  ;  34  W.  R.  683 
— C.  A.    Affirming  50  J.  P.  376— Hannen,  P. 

Where  a  defendant  refused  to  obey  an  order, 
directing  her  to  execute  a  mortgage,  the  judge 
appointed  his  chief  clerk  to  execute  it  under  s.  14 
of  the  Judicature  Act,  1884.  Edward*,  In  re, 
Owen  v.  Edwards,  33  W.  R.  578— Pearson,  J. 


2.    Alterations. 

Effect  of.] — What  alterations  in  a  document 
invalidate  it,  considered.  Lowe  v.  Fox,  12  App. 
Cas.  206  ;  56  L.  J.,  Q.  B.  480  ;  56  L.  T.  406  ;  36 
W.  R.  25  ;  51  J.  P.  468— H.  L.  (E.) 


3.     CONSTRUCTION. 

General  Words.]— General  words,  although 
introduced  for  the  purpose  of  sweeping  into  the 
assurance  everything  which  has  been  omitted  by 
mistake,  apply  prima  facie  only  to  things  ejus- 
dem  generis  with  those  specifically  enumerated. 
Orompton  v.  Jarrett,  30  Ch.  D.  298  ;  54  L.  J., 
Ch.  1109  ;  53  L.  T.  603  ;  33  W.  R.  913— C.  A. 

— -  Right  of  Way.] — A  railway  company 
purchased  under  the  powers  of  their  act,  a  piece 
of  land  on  which  was  a  stable.  By  the  convey- 
ance to  the  company  the  premises  were  granted 
together  with  all  "rights,  members  or  appur- 
tenances to  the  hereditaments  belonging  or 
occupied  or  enjoyed  as  part,  parcel,  or  member 
thereof."  The  vendor  had  many  years  previously 
made  a  private  road  from  the  highway  to  the 
stable  over  his  own  land  for  his  own  convenience, 
and  had  used  it  ever  since.  The  soil  of  this  road 
was  not  conveyed  to  the  company  and  no  express 
mention  of  it  was  made  in  the  conveyance : — 
Held,  that  a  right  of  way  passed  to  the  company 


under  the  general  words  of  the  conveyance. 
Bayley  v.  Great  Western  Railicay,  26  Ch.  D. 
434  ;  51  L.  T.  337— C.  A. 


Conveyance  of  Land  with  Reservation.]— 
Where  the  owner  conveys  land  to  a  person,  re- 
serving the  "  liberty  of  working  the  coal"  in 
those  lands,  he  must  be  taken  to  have  reserved 
the  estate  of  coal  (unless  there  are  clear  words 
in  the  deed  qualifying  that  right  of  property) 
with  which  he  stands  vested  at  the  date  of  the 
conveyance.  Hamilton  (Duke)  v.  Dunlop,  10 
App.  Cas.  813— H.  L.  (Sc.) 

Implied  Condition— Effect  of  Specific  Condi- 
tion.]— Where  in  any  document  a  general  con- 
dition would  be  implied,  if  there  is  inserted  a 
specific  and  limited  condition,  it  must  be  assumed 
that  such  specific  and  limited  condition  was 
meant  to  take  the  place  of  the  general  condition. 
Qoas,  Ex  parte,  Clement,  In  re,  3  M.  B.  B.  15S 
— C.  A. 

Implied  Covenant  to  keep  up  Patent— As- 
signment— Lapse.] — On  the  sale  of  a  patent  by 
the  patentees  to  a  limited  company  a  deed  of 
assignment  was  executed  by   the  parties,  by 
which  after  a  recital  that  the  patentees  had 
agreed  to  sell  the  patent  to  the  company  for 
250/.,  "  and  for  the  other  considerations  therein 
appearing/'  the  patentees  assigned  the  patent  to 
the  company  absolutely  ;  and  after  covenants  for 
title  by  the  patentees,  including  a  covenant  for 
quiet  enjoyment  of  the  patent  "  during  the  term 
subsisting  therein,"  the  company  covenanted  to 
pay  to  the  patentees  a  royalty  for  every  article 
"  which  should  be  manufactured  or  sold  by  the 
company  "  under  the  patent "  while  subsisting,'* 
and  also  a  proportion  of  the  profits  arising  from 
the  manufacture   or  sale,  and    from  licences 
granted  for  the  manufacture  or  sale  of  articles 
to  be  manufactured  under  the  patent  "while 
subsisting."      The  deed  contained  no  expre» 
covenant  by  the  company  to  keep  the  patent  on 
foot,  or  to  manufacture  or  sell  articles  under  the 
patent.   On  the  expiration  of  the  first  four  years 
of  the  patent  the  company  duly  paid  the  first 
renewal  fee  under  the  Patents,  Designs,  and 
Trade-marks  Act,  1883,  but  on  the  expiration  of 
the    fifth    year    they,    through    inadvertence, 
omitted  to  pay  the  second  renewal  fee  within 
the  time  required  by  the  act  and  the  rules  there- 
under, and   consequently    the    patent   lapsed. 
After  an  ineffectual  attempt  to  obtain  a  private 
Act  of  Parliament  to  revive  the  patent,  the 
company  passed   resolutions   for   a   voluntary 
winding-up,  and  the  patentees  thereupon  sent 
in  a  claim  for  damages  for  the  loss,  through  the 
lapse  of  the  patent,  of  the  royalties  reserved  by 
the  assignment,  contending  that  a  covenant  to 
keep  the  patent  on  foot  should  be  implied  in  the 
assignment : — Held,  that  no  such  covenant  could 
be  implied;    and  that,  even   if    it  could,  the 

Satentees  could  not  obtain  more  than  nominal 
amages,  the  company  being  under  no  obligation, 
either  express  or  implied,  to  manufacture  the 
patented  articles,  and  being  no  longer  able  to 
carry  on  business.  The  doctrine  of  implying 
covenants  in  deeds  discussed.  Rauway  *•* 
Electric  Appliances  Company,  In  re,  38  Ch.  D. 
597  ;  67  L.  J.,  Ch.  1027 ;  59  L.  T.  22  ;  36  W.  B. 
730— Kay,  J. 

Striking  out  Words—"  In  or  near."]— Where 


631 


DEED    AND    BOND— Form  and  Contents. 


622 


the  right  was  granted  to  hold  a  market  "  in  sive 
joxta  "  a  certain  place  : — Held,  that  it  was  con- 
trary to  a  canon  of  construction  of  a  grant  or 
other  document,  which  confers  a  right  to  strike 
oat  words  unless  it  is  absolutely  necessary  to  do 
» ;  and  that  the  grant  must  be  taken  to  be  of  a 
right  to  hold  the  market  in  or  near  the  place  in 
question,  that  is,  of  a  market  without  metes  and 
bounds.  Attorney- General  v.  Homer,  14  Q.  B. 
D.254 ;  64  L.  J.,  Q.  B.  227  ;  33  W.  R.  93  ;  49 
J.  P.  326— Per  Lord  Bsher,  M.R. 

fortius  oontra  Proferentem.  ]—See  Maxims. 

©rant  of  Land  adjoining  Biver — Bed  of  Biver 
•d  ■sdinin  Ilium— Presumption  rebuttable.]— 
The  presumption  that,  by  a  conveyance  describ- 
ing the  land  thereby  conveyed  as  bounded  by  a 
river,  it  is  intended  that  the  bed  of  the  river, 
usque  ad  medium  filum,  should  pass,  may  be 
rebutted  by  proof  of  surrounding  circumstances 
in  relation  to  the  property  in  question  which 
negative  the  possibility  of  such  having  been  the 
intention.  The  owners  of  a  manor  by  convey- 
inces  made  respectively  in  1767  and  1846 
granted  to  purchasers  pieces  of  riparian  land 
fronting  a  river,  the  bed  of  which  formed  parcel 
of  the  manor.  It  was  proved  that,  prior  to  the 
earliest  of  the  conveyances,  a  fishery  in  the  river 
fronting  the  lands  conveyed  had  for  a  very  long 
time  back  been  from  time  to  time  let  to  tenants 
by  the  lords  of  the  manor  as  a  separate  tene- 
ment, distinct  from  the  riparian  closes ;  and 
that  at  the  date  of  the  conveyances  in  1846 
men  fishery  was  actually  under  lease  to  tenants. 
The  grantees  under  the  before-mentioned  con- 
veyances, and  their  successors  in  title,  had, 
until  the  acts  complained  of  in  the  action,  never 
elaimed  or  exercised  any  right  of  fishing  over 
the  bed  of  the  river  by  virtue  of  any  right  of 
toil  or  otherwise,  but  the  owners  of  the  manor 
or  their  tenants  of  the  fishery  had  always  fished 
without  interruption : — Held,  that  under  the 
circumstances  the  conveyances  ought  not  to  be 
construed  as  passing  any  portion  of  the  bed  of 
the  river  to  tiie  grantees.  Devonshire  (Duke) 
v.  PaUinson,  20  Q.  B.  D.  263 ;  57  L.  J.,  Q.  B. 
189 ;  58  L.  T.  392  ;  52  J.  P.  276— C.  A. 

Through  the  presumption  that  a  grant  of 
land  described  as  bounded  by  an  inland  river 
the  adjoining  half  of  the  bed  of  the  river 
be  rebutted  by  circumstances  which  show 
that  the  parties  must  have  intended  it  not  to 
pass,  it  will  not  be  rebutted,  because  subsequent 
circumstance^,  not  contemplated  at  the  time  of 
the  grant,  show  it  to  have  been  very  disadvan- 
tageous to  the  grantor  to  have  parted  with  the 
half  bed.  and  if  contemplated,  would  probably 
hate  induced  him  to  reserve  it ;  nor  is  the  pre- 
sumption excluded  by  the  fact  that  the  grantor 
was  owner  of  both  banks  of  the  river.  MicJUe- 
tkwait  r.  Nevolay  Bridge  Company,  33  Ch.  D. 
133;  55  L.  T.  336  ;  51  J.  P.  132— C.  A. 

H.  being  entitled  to  lands  on  both  sides  of  a 
river,  sold  and  conveyed  to  L.  a  piece  of  land,  the 
dhnensions  of  which  were  minutely  given  in 
the  conveyance,  and  which  was  therein  stated  to 
contain  7,752  square  yards,  and  to  be  bounded 
on  the  north  by  the  river,  and  to  be  delineated 
on  the  plan  drawn  on  the  deed,  and  thereon 
coloured  pink.  The  dimensions  and  colouring 
extended  only  up  to  the  southern  edge  of  the 
river,  and  if  half  the  bed  had  been  included  the 
area  would  have  been  10,031  square  yards  instead 


of  7,752.  The  deed  contained  various  reserva- 
tions for  the  benefit  of  M.,  but  contained  nothing 
express  to  show  whether  the  half  of  the  bed  was 
intended  to  pass  or  not.  M.  was  at  the  time 
owner  of  a  private  bridge  close  by,  from  which 
he  received  tolls.  Thirty  years  afterwards  a 
bridge  was  projected  to  cross  the  river  from  L.'s 
land.  The  plaintiffs,  who  had  succeeded  to  all 
M.'s  property  in  the  neighbourhood,  brought 
their  action  to  restrain  the  making  the  new 
bridge.  If  the  grant  to  L.  passed  half  the  bed, 
no  part  of  the  new  bridge  would  be  over  land 
of  the  plaintiffs: — Held,  that  the  presumption 
that  the  grant  included  half  the  bed  was  not 
rebutted,  and  that  an  injunction  could  not  be 
granted  on  the  ground  that  the  erection  of  the 
bridge  would  be  a  trespass.    lb. 

Parcels — Description — General  Words— Copy- 
holds passing  with  freeholds.] — A  mortgage 
was  expressed  to  comprise  by  way  of  grant 
in  fee  "all  and  every  the  estate,  right,  title, 
property,  and  interest  of  the  mortgagor  of  and 
in  all  and  every  those  two  fields  or  parcels  of 
land,  containing  together  about  twenty-two  acres 
or  thereabouts,  situate  at  and  abutting  upon  the 
main  road  at "  H.,  and  "  bounded  upon  one  side 
by  "  B.  Lane,  "  and  also  of  and  in  all  and  every 
other,  if  any,  the  lands,  hereditaments,  and 
premises  at  H.  aforesaid  of,  in,  or  to  which  the 
mortgagor  hath  any  estate,  right,  title,  property, 
or  interest."  All  of  the  mortgagor's  property 
at  H.  was  freehold,  except  a  strip  of  land  of 
about  three-quarters  of  an  acre  which  lay- 
between  the  freeholds  and  B.  Lane,  and  which 
was  of  copyhold  tenure : — Held,  that  the  copy- 
hold strip  passed  under  the  general  words  and 
was  included  in  tbe  mortgage.  Rooke  v.  Ken- 
sington (2  Kay  &  J.  753),  and  Orompton  v. 
Jarratt  (30  Ch.  D.  298),  distinguished.  Semble, 
having  regard  to  the  position  of  the  property 
and  the  description  in  the  deed,  the  copyhold 
strip  was  included  in  the  parcels  themselves. 
Early  v.  Rathbone,  57  L.  J.,  Ch.  652  ;  58  L.  T. 
517— Kekewich,  J. 

Inconsistency  between  Beoitals  and  Opera- 
tive Part— General  Words.] — A  marriage  settle- 
ment contained  a  recital  that  the  land  intended 
to  be  dealt  with  was  subject  to  a  certain  charge, 
and  to  a  term  of  1,500  years.  The  operative 
part  of  the  deed  referred  to  a  schedule  in  which 
certain  lands  situate  in  four  townships  in  the 
county  of  Durham,  and  subject  to  this  charge, 
were  particularly  described.  The  operative  part 
also  contained  general  words  referring  to  all 
other  lands  belonging  to  the  settlor  in  these 
townships.  The  settlor  at  the  time  of  the  settle- 
ment was  entitled  to  other  lands  in  two  of  these 
townships  of  about  the  same  value  as  the 
scheduled  property,  but  subject  to  a  different 
set  of  charges  to  those  mentioned  in  the  recitals : 
— Held,  that  these  last  lands  did  not  pass  by  the 
deed,  and  that  the  operation  of  the  general 
words  was  confined  to  the  lands  which  were 
subject  to  the  charges  mentioned  in  the  recitals. 
Durham  (Earl),  In  re,  Grey  (Earl)  v.  Durham 
(Earl),  57  L.  T.  164— Stirling,  J. 

Beeital  limiting  Operative  Part] — The  opera- 
tive part  of  a  power  of  attorney  appointed  X. 
and  Y.  to  be  the  attorneys  of  tne  plaintiff 
without  in  terms  limiting  the  duration  of  their 
powers,  but  it  was  preceded  by  a  recital  that  the 


623 


DEED    AND    BOND— Form  and  Contents. 


624 


plaintiff  wns  going  abroad,  and  was  desirous  of 
appointing  attorreys  to  act  for  him  during  his 
absence  :— Held,  that  the  recital  controlled  the 
generality  of  the  operative  part  of  the  install- 
ment, and  limited  the  exercise  of  the  powers  of 
the  attorneys  to  the  period  of  the  plaintiff's 
absence  from  this  country.  Dauby  v.  Coutts,  29 
Ch.  D.  500 ;  54  L.  J.,  Ch.  577  ;  52  L.  T.  401  ;  33 
W.  R.  659— Kay,  J. 

Covenant  running  with  Land  —  Covenant  to 
Eepair  and  Maintain  Road.]— The  doctrine  in 
Tulk  v.  Mvxhay  (2  Ph.  774)  is  limited  to  restric- 
tive stipulation,  and  will  not  be  extended  so  as 
to  bind  in  equity  a  purchaser  taking  with  notice 
of  a  covenant  to  expend  money  on  repairs  or 
otherwise  which  does  not  run  with  the  land  at 
law.    Semble,  that  the  burden  of  a  covenant 
(not  involving  a  grant)  never  runs  with  the 
land  at  law,  except  as  between  landlord  and 
tenant.     Cooke  v.  Chilcott  (3  Ch.  D.  694)  over- 
ruled on  this  point.    Morland  v.  Cooke  (6  L.  R., 
Eq.  252)  explained.     Holmes  v.  Buckley  (1  Eq. 
C.  Ab.  27)  discussed.      Consideration   of   the 
oircumstances  under  which  a  covenant  will  be 
held  to  touch  or  concern  the  land  of  the  cove- 
nantee so  that  the  benefit  may  run  with  the 
land.     Avsterberry  v.  Oldham  Corporation,  29 
Ch.  D.  750  ;  65  L.  J.,  Ch.  633  ;  53  L.  T.  643  ;  33 
W.  R.  807  ;  49  J.  P.  532— C.  A. 
.  A.  by  deed  conveyed  for  value  to  trustees  in 
fee  a  piece  of  land  as  part  of  the  site  of  a  road 
intended  to  be  made  and  maintained  by  the 
trustees  under  the  provisions  of  a  contempora- 
neous trust  deed  (being  a  deed  of  settlement  for 
the  benefit  of  a  joint  stock  company  established 
to  raise  the  necessary  capital  for  making  the 
road)  ;  and  in  the  conveyance  the  trustees  cove- 
nanted with  A.,  his  heirs  and  assigns,  that  they, 
the  trustees,  their  heirs  and  assigns,  would  make 
the  road  and  at  all  times  keep  it  in  repair,  and 
allow  the  use  of  it  by  the  public  subject  to  tolls. 
The  piece  of  land  so  conveyed  was  bounded  on 
both  sides  by  other  lands  belonging  to  A.    The 
trustees  duly  made  the  road,  which  afforded  the 
necessary  access  to  A.'s  adjoining  lands.     A. 
afterwards  sold  his  adjoining  lands  to  the  plain- 
tiff, and  the  trustees  sold  the  road  to  the  defen- 
dants, both  parties  taking  with  notice  of  the 
covenant  to  repair  : — Held,  that  the  plaintiff 
could  not  enforce  the  covenant  against  the  de- 
fendants,   lb. 

Equitable  Estate  in  Fee— Words  of  Inherit- 
ance.]— An  equitable  estate  in  fee  could  not  be 
created  by  a  deed  executed  before  the  Convey- 
ancing nnd  Law  of  Property  Amendment  Act, 
1881  (44  &  45  Vict.  c.  41),  without  words  of 
inheritance.  Meyler  v.  Meyler,  11  L.  R.,  Ir.  622 
— •  v.-Ct 


4.  Setting  Aside  and  Rectifying  Deeds. 

Originating  Summons.  ]— The  validity  of  a  re- 
lease can  be  determined  on  an  originating  sum- 
mons under  Ord.  LV.  r.  3,  which  asks  also  for 
the  administration  of  the  estate  of  a  deceased 
testator,  even  when  it  is  admitted  that  adminis- 
tration is  not  wanted.  Qamett,  In  re,  Gandy 
v.  Macaulay,  60  L.  T.  172  ;  32  W.  R.  474—  V.- 
C.  B. 

Rectification   and    8peoinc    Performance    in 


tame  Action.  ] — Since  the  Judicature  Act,  1873, 
the  court  has  jurisdiction  (in  any  case  in  which 
the  Statute  of  Frauds  is  not  a  bar),  in  one  and 
the  same  action  to  rectify  a  written  agreement, 
upon  parol  evidence  of  mistake,  and  to  order 
the  agreement  as  rectified  to  be  specifically  per- 
formed. Olley  v.  Fishtr,  34  Ch.  D.  367 ;  56  L. 
J.,  Ch.  208  ;  65  L.  T.  807  ;  35  W.  R  301- 
Nortb,  J. 

Rectification — Nothing  left  to  be  performed 
under  Agreement.] — After  money  has  been  paid 
under  a  judgment  founded  on  toe  construction 
of  an  agreement,  an  action  to  rectify  the  agree- 
ment on  the  ground  that  such  construction  wai 
contrary  to  the  intention  of  all  parties  is  barred. 
Caird  v.  Moss*  33  Ch.  D.  22  ;  66  L.  J.,  Ch.  854 ; 
56  L.  T.  453  ;  35  W.  R.  52  ;  5  Asp.  M.  C.  565- 
C.  A. 

Disentailing  Deed.  ]  —  The  court  is  not 

prohibited  by  the  Fines  and  Recoveries  Act  (3 
&  4  Will.  4,  c.  74),  s.  47,  from  exercising  its 
ordinary  jurisdiction  to  rectify,  on  the  ground  of 
mistake,  a  deed  of  re-settlement  which  has  been 
enrolled  as  a  disentailing  assurance  under  the 
act.  Hall-Dare  v.  Hall-Dare,  31  Ch.  D.  251  ; 
55  L.  J.,  Ch.  164  ;  54  L.  T.  120 ;  34  W.  R.  82- 
C.  A. 


Mistake  ai  to  Parcels.] — Where  there 

••1  •  A\  ■%  A'_Ji_ 


has  been  a  mistake  in  the  parcels  contained  in 
an  executed  lease,  although  it  may  be  a  mistake 
by  the  plaintiff  only,  the  court  will  order  the 
annulment,  or,  at  the  option  of  the  defendant, 
the  rectification  of  the  lease.  Paget  v.  Marshall, 
28  Ch.  D.  255  ;  54  L.  J.,  Ch.  575  ;  61  L.  T.  361 ; 
33  W.  R.  608  ;  49  J.  P.  85— V.-C.  B. 

Onus  of  Proof— Marriage  Settlement}— The 
onus  lies  on  those  who  seek  to  alter  an  instru- 
ment to  show  why  it  should  be  altered,  not  on 
those  who  support  it,  to  show  why  it  should 
not  be  altered.  A  settlement  on  marriage  will 
not  be  rectified  or  altered,  unless  it  is  shown 
that  at  the  time  when  the  deed  was  executed 
there  was  some  definite  arrangement  in  accord- 
ance with  which  it  ought  to  have  been  prepared 
as  it  is  desired  to  rectify  or  alter  it.  As  to 
persons  not  within  the  consideration,  such  a 
settlement  cannot  be  regarded  as  on  the  same 
footing  as  a  voluntary  settlement.  Tucker  v. 
Bennttt,  38  Ch.  D.  1  ;  57  L.  J.,  Ch.  507  ;  68  L.  T. 
650— C.  A. 

Want  of  Independent  Advice — Father  Agent 
for  Wife.] — On  the  marriage  of  a  daughter, 
who  is  living  on  affectionate  terms  with  her 
father,  he  is  the  proper  person  to  recommend 
and  advise  her,  and  her  natural  guardian  in 
matters  relating  to  the  preparation  of  her  mar- 
riage settlement,  and  there  is  no  occasion  for 
any  independent  legal  adviser  beyond  the  family 
solicitor.  Smith  v.  lliffe  (20  L.  R.,  Bq.  666) 
dissented  from.  lb. 

General    Knowledge.] —Where  in    an 

action  to  obtain  the  cancellation  or  modification 
of  a  voluntary  deed  on  the  ground  of  undue  in- 
fluence and  want  of  independent  advice,  the 
plaintiff  admits  that  he  haa  an  accurate  general 
knowledge  of  what  he  was  doing,  and  only 
refused  to  receive  a  detailed  explanation  of  the 
deed  because  he  trusted  his  solicitor  to  look 


625 


DEED    AND    BOND— Form  and  Contents. 


626 


iato  those  details  on  his  behalf,  he  was  as  much 
boaod  as  if  he  were  himself  a  lawyer,  and  had 
drnni  the  deed  with  his  own  hand.  Lovell  v. 
Wallis,  50  L.  T.  681— Kay,  J. 

Setting    aside   Release— Mistake— Lapse   of 

Baa]  -  A  release  to  a  trustee  was  set  aside  after 
the  lapse  of   more    than  twenty   years,    and 
after  the  death  of  the  trustee,  on  evidence  of 
the  plaintiff  (corroborated  by  the  terms  of  the 
deed)  that  it  was  executed  in  error.    In  such  a 
case  it  i»  not  necessary  to  prove  fraud.   Qarnrtt, 
In  n*,  dandy  v.  Macaulay,  31  Ch.  D.  1—  C.  A. 
A  testator  bequeathed  one-half  of  his  residuary 
personal  estate  to  his  sister,  and  one-quarter 
thereof  to  each  of  his  two  nieces  ;  he  appointed 
his  sister  trustee  and  executrix  of  his  will,  and 
died  in  the  year  1855.    The  residuary  personal 
estate  consisted  principally  of  railway  shares  and 
stocks,  and  at  the  time  of  passing  the  residuary 
account  it  was  valued  at  42,000/.    The  nieces 
lived  with  their  aunt,  who  had  brought  them  up 
from  childhood.     In  1839,  the  nieces  executed  a 
release  of  r11  suits  and  causes  of  action  in  favour 
of  their  aunt  in  consideration  of  the  payment  of 
lOioOJ.  to  each.     At  the  time  of  the  execution 
of  the  release,  the  railway  shares  and  stocks  had 
increased  in  value,  and  the  share  of  each  of  the 
nieces  was  worth  much  more  than  10,5002.    The 
release  was  drawn  up  by  the  aunt's  solicitor,  and 
the  nieces  had  no  independent  advice  and  exe- 
cuted it  in  error,  but  no  fraud   was  imputed. 
In  1879,  the  aunt  died.    In  1883,  an  action  was 
commenced  by  one  of  the  nieces  to  set  aside  the 
release : — Held,  that  the  release  was  invalid  and 
most  be  set  aside.    lb. 

lower  of  Disposition  on  failure  of  issue 
esntted.] — By  a  voluntary  settlement  property 
was  assigned  to  trustees  in  trust  for  the  settlor 
for  life,  remainder  for  any  wife  he  might  marry 
for  life,  with  remainders  to  his  issue,  nnd  in 
default  or  failure  of  issue  in  trust  for  his  paternal 
next-of-kin  : — Held,  that  though  a  settlement 
was  proper  to  be  made,  and  though  the  settlor 
understood  the  terms  of  this  settlement,  yet 
as  his  attention  was  not  drawn  to  the  fact 
that  be  might  have  had  a  power  of  disposition 
over  the  property  in  default  or  failure  of  issue, 
each  a  power  ought  to  be  given,  and  the  settle- 
ment most  be  rectified  accordingly.  James  v. 
Cmkm**,  29  Ch.  D.  212 ;  54  L.  J.,  Ch.  838  ;  52 
L  T.  344  ;  33  W.  R.  452— North,  J. 

Aseenee  of  Power  of  Revocation— Solicitor 
taking  indirect  Benefit  under  Deed.] — A  man 
of  foil  mental  capacity,  seised  of  property 
*hich,  according  to  the  opinion  of  one  counsel, 
vas  limited  to  the  use  of  himself  for  life, 
with  remainder  to  his  first  and  other  sons  in 
tail  male,  with  remainder  to  himself  in  fee  ; 
and  according  to  another  opinion,  was  limited 
to  tJie  use  of  himself  in  tail  male  ;  instructed 
a  solicitor  who  had  acted  generally  for  him, 
to  prep  ire  a  voluntary  deed  for  the  benefit 
<rf  his  three  nephews — young  men  in  the  prime 
of  life,  brothers  of  the  half-blooJ  of  the  solicitor, 
their  father  being  then  alive.  The  solicitor 
fttst  instructions  to  counsel  to  prepare  a  deed 
barring  the  entail,  and  settling  the  lands  in 
equal  shares  among  the  nephews.  The  deed  was 
drafted  by  counsel,  limiting  the  lands  to  the 
settlor  for  life ;  remainder  to  his  wife  for  life  ; 


remainder  to  the  three  nephews  as  tenants  in 
common  in  fee,  with  onerous  covenants  on  the 
part  of  the  settlor,  and  without  any  power  of 
revocation.  It  was  duly  executed  in  1852,  but 
was  not  registered.  The  last  survivor  of  the 
three  nephews  died  in  18154,  leaving  the  solicitor 
hi6  heir  at  law.  The  settlor  in  1868,  after 
being  further  advised  by  counsel  as  to  the  effect 
of  the  deed  of  1#52,  and  his  position  with  respect 
to  it,  executed  another  voluntary  deed,  duly 
registered,  to  the  trustees  of  the  deeds  of  1852, 
limiting  the  property  in  favour  of  the  plaintiff, 
his  ad  pted  child,  but  took  no  proceedings  to  set 
aside  the  deed  of  1852,  and  died  in  1874.  In  an 
action  brought  by  the  plaintiff  in  lt«82,  to  have 
the  solicitor  declared  a  trustee  for  the  plaintiff, 
and  others  entitled  u  der  the  deed  of  1868,  there 
being  no  evidence  of  fraud  or  undue  influence  in 
the  preparation  and  execution  of  the  deed  of 
1852:— Held,  tv.at  although  there  was  no 
evidence  of  fraud  or  undue  influence,  it  was  the 
duty  of  the  solicitor  under  the  circumstances  to 
have  disti  ctly  called  the  attention  of  the  settlor 
to  the  advisablene-s  of  inserting  a  clause  of 
revocation  in  the  dead  of  1852,  and  to  have 
pointed  out  the  results  that  might  ensue  from 
its  omission ;  a  d  that  therefore  the  solicitor 
could  not  hold  a  title  depending  on  the  absence 
of  a  clause  of  revocation  in  the  deed.  Horan  v. 
Macmahon,  17  L.  R.,  Ir.  641 — C.  A. 

Cancellation — Inchoate  Marriage  Settlement.] 
— In  contemplation  of  marriage,  an  intended 
wife  and  her  father  executed  the  engrossment  of 
a  settlement  of,  inter  alia,  funds  to  be  provided 
by  the  father,  and  the  present  t.nd  after-acquired 
property  of  the  ii.  tended  wife.  The  engrossment 
was  given  into  the  custody  of  the  solicitors  of  the 
intended  husband  :  it  whs  not  executed  by  him 
or  the  trustees.  The  engagement  was  broken  off 
by  agreement.  After  the  lapse  of  three  and  a 
half  years  the  court  declared  the  engrossment 
void  as  a  settlement,  and  directed  it  to  be  given 
up.  Bond  v.  Walftn-d,  32  Ch.  D.  238  ;  55  L.  J., 
Ch.  667  ;  54  L.  T.  672— Pearson,  J. 

By  a  settlement  executed  in  1877,  in  considera- 
tion of  a  then  intended  marriage,  it  was  declared 
that  a  sum  of  stock,  the  property  of  the  intended 
wife,  which  had  been  transferred  by  her  to  two 
trustees,  should  be  held  by  them  on  trust  for  the 
benefit  of  the  intended  wife,  the  intended  hus- 
band, and  the  issue  of  the  intended  marriage. 
The  marriage  was  not  solemnized,  but  the  parties 
cohabited  without  marriage,  and  three  children 
were  born.  In  1883  an  action  was  brought  by 
the  father  and  mother  against  the  trustees  of 
the  settlement,  to  obtain  a  transfer  of  the  fund 
to  the  mother : — Held,  that  the  contract  to 
marry  had  been  absolutely  put  an  end  to,  and 
that  the  court  could  order  the  stock  to  be  trans- 
ferred to  the  lady.  Ensery  v.  Cowlard,  26  Ch.  D. 
191 ;  53  L.  J.,  Ch.  661  ;  51  L.  T.  60  ;  32  W.  R. 
518 — Pearson,  J. 

Action  to  set  aside  Marriage  Settlement — 
Fraud.] — In  an  action  to  set  aside  a  marriage 
settlement,  the  plaintiff  alleged  as  the  grounds 
of  his  action,  that,  previous  to  the  execution  of 
the  settlement  made  upon  the  marriage  between 
himself  and  J.  S.,  the  latter  s'ated  to  him  that 
her  first  husband  bad  been  divorced  from  her,  at 
her  suit,  by  reason  of  his  cruelty  and  adultery  ; 
that  such  statements  were  made  to  induce  him 


627 


DEED    AND    BOND— Registration  of  Deeds. 


628 


to  execute  the  settlement  and  contract  the  mar- 
riage ;  that,  in  reliance  on  the  representations, 
he  executed  the  settlement  and  married  J.  8. ; 
that  he  subsequently  discovered  that  the  repre- 
sentations were  false  to  the  knowledge  of  J.  S., 
and  that  she  had  been  divorced  from  her  hus- 
band at  his  suit  and  by  reason  of  her  adultery  : 
—Held,  on  motion  by  the  defendant,  that  the 
plaintiff's  statement  of  claim  must  be  struck 
out  under  Ord.  XXV.  r.  4,  as  disclosing  no 
reasonable  ground  of  action.  Johnston  v.  John- 
jfton,  52  L.  T.  76  ;  33  W.  R.  239— C.  A.  Affirm- 
ing 53  L.  J.,  Ch.  1014— Pearson,  J. 

Variation  of  Settlements  on  Divorce.]— See 
Husband  and  Wife  (Ditorcb). 


II.     REGISTRATION   OF  DEEDS. 

Middlesex— Fees  for  registering  Memorial.]— 
For  registering  a  memorial  of  a  deed  of  199 
words  in  the  Middlesex  Registry  under  7  Anne, 
c.  20,  the  fees  claimed  and  received  were, — U. 
for  "entry"  of  the  memorial  (under  s.  11}; 
\*.  6d.  for  "administering:  the  oath"  of  the 
signing  and  delivery  of  the  memorial  (under 
s.  5)  ;  1*.  for  ;<  indorsing  a  certificate  of  the  said 
oath  upon  the  memorial,  and  signing  the  same  " 
(under  s.  5);  1*.  for  the  "certificate  indorsed 
upon  the  deed  to  the  effect  that  it  had  been 
registered,  with  the  day  and  hour  on  which  the 
memorial  was  entered  or  registered"  (under 
s.  6)  : — Held,  that  these  fees  were  warranted  by 
the  act.  Munton  v.  Truro  {Lord),  17  Q.  B.  D. 
783  ;  55  L.  J.,  Q.  B.  563  ;  55  L.  T.  293  ;  35  W.  R. 
138— D. 


Copyhold     Estate  —  Enfranchisement 


Unregistered  Will — Hotiee— Principal 

and  Agent]— A  testatrix,  who  died  in  1871,  by 
her  will  devised  real  estate  in  Middlesex  to 
trustees  upon  trust  for  sale.    The  will  was  not 
registered  in  Middlesex.    The  heir-at-law  of  the 
testatrix  having  learned  that  the  will  had  not 
been  registered,  mortgaged  the  property  to  dif- 
ferent mortgagees,  and  registered  the  mortgages. 
The  mortgage  deeds  were  prepared  and  registered 
by  the  heir-at-law  himself.  The  surviving  trustee 
received  the  rents  of  the  property  down  to  1878, 
when  he  died,  and  in  1879  a  receiver  was  ap- 
pointed in  an  action  to  administer  the  estate  of 
the  testatrix.     The  property  was  sjld  in  1882 
under  an  order  of  the  court,  and  notice  of  the 
mortgages  was  then  given  by  the  mortgagees  to 
the  purchasers,  and  the  purchase  moneys  were 
paid  into  court  subject  to  the  claims  of  the 
mortgagees.    The  heir-at-law  died  in  1885.   An 
application  was  made  to  transfer  the  purchase 
moneys  to  the  account  of  the  devisees  under  the 
will.    The  mortgagees  resisted  the  application 
on  the  ground  that  the  act  of  7  Aune,  c.  20, 
gave  them  a  title,  because  the  will  had  not  been 
registered.     Neither  of  the  securities  was  for 
moneyR  advanced,  but  both  for  old  debts,  and 
the  heir-at-law  acted  in  the  mortgage  transac- 
]  tions  as  agent  of  both  the  mortgagees  :— Held, 
that,  if   persons  claiming  under  the  act  bad 
notice  of  the  will,  they  could  not  set  op  the 
title  of  the  heir-at-law  ;  that  in  the  present  case 
the  mortgagees  were  affected  by  the  notice  which 
their  agent  the  heir-at-law  possessed ;  and  that 
consequently  their  claims  failed.     Weir,  1%  ft, 
Hollingworth  v.  Willing,  58  L.  T.  792  -Chitty.  J. 


Mortgages  —  Priority  ol]— Mortgagees 


Deed.] — As.  on  the  execution  of  a  deed  enfran- 
chising copyhold  land  in  the  county  of  Middle- 
sex, such  land  ceases  to  be  copyhold  and  becomes 
freehold,  in  such  a  case  the  exception  in  s.  17  of 
7  Anne,  c.  20.  does  not  apply,  and  therefore  a 
memorial  of  such  a  deed  must  be  registered 
under  s.  1  of  the  act.  Reg.  v.  Truro  (Lord),  21 
Q.  B.  D.  555  ;  57  L.  J.,  Q.  B.  577  ;  59  L.  T.  242 ; 
36  W.  R.  775— C.  A. 


Attesting   Witness— Execution— Memo- 


rial—Commissioners  to  administer  Oaths.]— A 
memorial  of  a  deed  required  to  be  registered  in 
Middlesex,  need  not,  under  7  Anne,  c.  20,  a.  5, 
be  attested  by  a  witness  to  the  execution  of  such 
deed  by  the  grantor ;  but  if  the  witness  be  a 
witness  to  the  execution  of  the  deed  by  the 
grantee,  it  is  a  sufficient  compliance  with  the 
statute.  A  London  commissioner  to  administer 
oaths  in  Chancery  is  now  qualified,  under  16  & 
17  Vict.  c.  78,  8.  2,  to  administer  oaths  to  wit- 
nesses under  the  provisions  of  7  Anne.  c.  20,  s.  5. 
lb. 


Registration  of  Final  Order  of  Fore- 


closure.]— An  order  for  foreclosure  absolute  in 
respect  of  lands  in  Middlesex  is  not  a  judgment 
within  the  meaning  of  7  Anne,  c.  20,  s.  18,  and 
1  &  2  Vict.  c.  110,  so  as  to  require  a  memorial  to 
be  entered  at  the  Middlesex  Registry  Office ; 
and  a  direction  to  the  Registrar  of  Deeds  to  that 
effect  was  refused.  Burrows  v.  Holley,  35  Ch.  D. 
123  ;  56  L.  J.,  Ch.  605  ;  56  L.  T.  506  ;  36  W.  R. 
592— Chitty,  J. 


of  a  share  of  the  proceeds  of  sale  of  real  estate 
in  Middlesex  devised  upon  trust  for  sale  do 
not  acquire  priority  by  registration,  but  by 
notice  given  to  the  trustees  of  the  will.  Arte* 
v.  Arden,  29  Ch.  D.  702  ;  54  L.  J.,  Ch.  665 ;  52 
L.  T.  610  ;  33  W.  R.  693— Kay,  J. 

Advances  by  First  Mortgagee  after  Registra- 
tion of  Second  Mortgage  and  Ids  pendens.]— A* 
being  in  possession  of  certain  lands,  executed  a 
mortgage,  which  was  duly  registered,  to  the  N. 
bank,  to  secure  past  and  future  advances.  Sub- 
sequently A.  executed  an  agreement  to  mortgage 
the  same  lands  to  B.t  and  in  pursuance  of  such 
agreement,  a  mortgage  was  executed  to  B.,  who 
registered  both  instruments,  but  gave  no  notice 
to  the  bank.  B.  filed  a  petition  for  sale  of  the 
lands,  and  registered  the  matter  as  a  lis  pendens. 
The  first  actual  notice  given  to  the  bank  was  the 
service  on  it  of  the  conditional  order  for  sale  :— 
Held,  that  advances  made  by  the  bank  after  the 
registration  of  the  subsequent  agreement  mort- 
gage, and  lis  pendens,  were  not  "  dispositions  '* 
within  the  meaning  of  the  4th  section  of  the 
Irish  Registry  Act  (6  Anne,  c.  2),  and  that  all 
advances  made  by  the  bank  prior  to  the  service 
upon  it  of  the  conditional  order  for  sale  were 
entitled  to  priority  over  the  second  mortgage. 
a Byrne's  Estate,  In  re,  15  L.  R.,  Ir.  373— C.  A. 

Vendors  allowing  Vendees  to  Begister— Lisa 
—  Unpaid  Purchase -money.]  —  Trustees  of  a 
charity  conveyed  land  in  Yorkshire  to  R.  and 
W.,  part  of  the  purchase-money  remaining  un- 
paid, and  allowed  R.  and  W.  to  register  the  con- 
veyance, knowing  that  they  wanted  to  do  so  in 
order  to  re-sell  the  land  in  lots : — Held,  that  the 


639 


DEED    AND    BOND— Proceedings  on  Bonds. 


680 


trustees  had,  by  their  conduct,  precluded  them- 
selves from  asserting  their  lien  for  nnpaid  pur- 
chase-money against  bona  fide  sub-purchasers 
from  R.  and  W.  without  actual  notice,  though 
the  sub-purchasers  had  not  examined,  as  it  was 
their  duty  to  have  done,  the  conveyance  to  R. 
and  W.,  a  memorial  of  which  was  registered, 
sod  though  the  estate  of  one  of  the  sub-pur- 
chasers was  equitable  only.  Kettlewell  v.  Wat- 
m,  26  Ch.  D.  501 ;  53  L.  J.,  Ch.  717 ;  51  L.  T. 
135 ;  32  W.  R.  866— C.  A. 

A  Tendons  lien  for  unpaid  purchase-money 
need  not  be  registered  under  2  &  3  Anne,  c.  4. 
II. 


IIL    ACTIONS    ON    DEEDS. 

Person  relying  on  opposite  Constructions  in 
tiftrtat  Actions.] — Whore  a  litigant  has  obtained 
a  construction  by  the  court  of  certain  covenants 
in  a  deed  in  his  favour,  he  cannot  in  a  second 
suit  set  up  a  contrary  construction  to  that  adopted 
by  the  court  in  the  first  suit.  Gandy  v.  Gandy, 
30  Ch.  D.  57  ;  64  L.  J.,  Ch.  1154  ;  53  L.  T.  306 ; 
33  W.  B.  803— C.  A. 

Wh*  may  sua  on  —  Cestui  que  trust.] — To 
entitle  a  third  person  not  named  as  a  party  to  a 
contract  deed,  to  sue  either  of  the  contracting 
parties,  that  third  person  must  possess  an  actual 
beneficial  right  which  places  him  in  the  position 
rf  cestui  que  trust,  under  the  deed.    lb. 


IV.    PARTICULAR    DEEDS. 
1.  Title- Deeds. 

Castedy  of — Trustee  in  Bankruptcy — life 
Estate  of  Bankrupts  Wife.]— The  trustee  in 
bankruptcy  of  a  husband,  whose  wife  is  legal 
tenant  for  life  of  land  (not  to  her  separate  use) 
has  no  absolute  right  to  the  custody  of  the  title- 
deeds  of  the  land  during  the  coverture,  but  the 
wort  has  a  discretion  as  to  the  custody.  In  a 
case  in  which  there  was  evidence  that  a  bank- 
rant's  wife  was  about  to  apply  to  the  Divorce 
Court  for  the  dissolution  of  the  marriage  : — Held, 
that  the  title-deeds  of  land,  of  which  she  was 
legal  tenant  for  life,  ought  not  to  be  delivered  to 
the  trustee  in  the  bankruptcy,  but  ought  to  be 
retained  in  court,  where  the  county  court  judge 
bad,  upon  the  trustee's  application  for  delivery  to 
Bin,  ordered  them  to  be  deposited.  Rogers,  Ex 
p*rte,  Pyatt,  In  re,  26  Ch.  D.  31 ;  53  L.  J.,  Ch. 
»« ;  51  L.  T.  177  ;  32  W.  R.  737— C.  A. 

Per  Cotton,  L.  J. : — Whether  under  ordinary 
orcumstanoes,  an  assignee  from  a  husband  of  his 
right  to  receive  during  the  coverture  the  rents  of 
wad  of  which  his  wife  is  legal  tenant  for  life,  is 
entitled  as  a  matter  of  course  to  the  custody  of 
the  title-deeds,  quaere,    lb. 

—  Deeds  relating  to  two  Estates— Custody 
el  fteUettors  of  previous  Owner  of  both  Estates.] 
—The  owner  in  fee  of  an  estate  gave  her  title- 
deeds  into  the  possession  of  her  solicitors.  She 
afterwards  settled  the  estate,  and  under  the  limi- 
tations of  the  settlement  part  of  the  estate  be- 
came vested,  after  her  death,  in  the  plaintiffs, 
and  the  remainder  in  the  heir-at-law  of  the 
settlor.  The  heir-at-law  could  not  be  found. 
The  solicitors  refused  to  deliver  up  the  deeds  to 


the  plaintiffs  : — Held,  that  the  plaintiffs  could 
not  recover  possession  of  the  deeds  from  the 
solicitors  without  the  concurrence  of  the  heir  \ 
but  that  the  deeds  must  be  deposited  in  court, 
the  plaintiffs  having  liberty  to  inspect  and  make 
copies  of  them.  Wright  v.  Robot  nam,  33  Ch.  D. 
106  :  55  L.  J.,  Ch.  791  ;  55  L.  T.  241 ;  34  W.  R. 
668— C.  A. 

Production  of,  to  Cestui  que  trust.] — Prima 
facie,  and  in  the  absence  of  any  special  circum- 
stances, a  cestui  que  trust,  even  though  he  be 
only  interested  in  the  proceeds  of  the  sale  of 
land,  is  entitled  to  the  production  and  inspection 
of  all  title-deeds  and  other  documents  relating  to 
the  trust  estate  which  are  in  the  possession  of 
the  trustees.  One  cestui  que  trust  can  enforce 
this  right  against  the  trustees,  without  bringing 
before  the  court  the  other  persons  beneficially 
interested  in  the  property  when  they  have  no- 
higher  right  than  himself.  Cowin,  In  re,  Cowin 
v.  Gravett,  33  Ch.  D.  179  ;  56  L.  J.,  Ch.  78  ;  34 
W.  R.  735— North,  J. 


V.     PROCEEDINGS    ON    BONDS. 

Order  XIV— Penalty.] — The  indorsement  on  a 
writ  claimed  500/., as  the  principal  sum  due  on  a 
bond  conditioned  for  the  payment  by  the  obligor 
to  the  plaintiff  of  an  annuity  of  262.  during  the 
life  of  a  child,  and  until  she  should  attain  the  age 
of  sixteen  years,  by  specified  quarterly  payments, 
and  alleged  that  two  of  such  payments  were  due 
and  unpaid  : — Held,  that  the  plaintiff  was  not 
entitled  to  proceed  under  Ord.  XIV.  r.  1,  to 
obtain  final  judgment,  but  was  limited  to  the 
procedure  specified  in  8  &  9  Will.  3.  c.  11,  s.  8, 
and  Ord.  XIII.  r.  14.  Tut  her  v.  Caralampi, 
21  Q.  B.  D.  414 ;  59  L.  T.  141  ;  37  W.  R.  94  ;  52 
J.  P.  616— D. 

Obligation  to  pay  Interest  regularly— Default 
—Forfeiture.] — On  a  bond  with  a  penalty  con- 
ditioned for  the  payment  of  money  at  a  given 
day,  and  interest  at  stated  intervals  in  the 
meantime,  the  whole  sum  becomes  demandable 
on  default  in  the  regular  payment  of  interest. 
It  is  no  defence  to  plead  that  the  obligors  credited 
the  obligee  with  interest  in  their  books  upon 
which  the  obligee  could  draw.  Goad  v.  Umpire 
Printing  Company,  52  J.  P.  438— Stephen,  J. 

lien  on  Real  Estate.]— See  Lien. 


Condition  in  Restraint  of  Trade— Enforcing; 
by  Injunction.] — See  London  and  Yorkshire 
Bank  v.  Pritt,  ante,  col.  487. 


Who  may  Sue  on—  Assignee.]— See  Palmar  v. 
Mallet,  ante,  col.  487. 


Foreign  Bond — negotiability.] — See  Negoti- 
able Instruments. 


] 


681 


DEFAMATION— In  Ordinary  Cases. 


682 


DEFAMATION. 


I.  In  Ordinary  Cases. 

1.  Wluit  is  Actionable,  631. 

2.  Privilege. 

a.  Absolute,  63S. 

b.  Qualified,  633. 

3.  Evidence,  635. 

4.  Practice  and  Pleading,  636. 

II.  Criminal  Proceed  in  as,  639. 
III.  Slander  op  Title.— See  Trade. 


I.     IN  ORDINARY   CASES. 
1.    What  is  Actionable. 

Blander — Special  Damage.]— The  wrongful 
refusal  of  a  third  party  to  fulfil  a  contract  may 
give  a  right  to  special  damage  for  a  slander  if 
such  refusal  he  the  probable  consequence  of  the 
utterance  of  the  slander.  Societi  Francaite  de* 
Asphaltes  v.  Farrell,  1  C.  E.  563— Huddleaton, 
B. 

The  plaintiff,  a  married  woman  living  apart 
from  her  husband,  brought  an  action  of  slander 
against  the  defendant.  The  alleged  slander  was 
in  respect  of  words  not  actionable  per  se,  and 
the  consequences  were  stated  to  be  that  the 
plaintiff  had  suffered  annoyance,  loss  of  friends, 
credit,  and  reputation,  and  that  through  the 
defendant  having  caused  an  irreparable  breach 
between  the  plaintiff  and  her  husband,  her 
husband  had  deprived  her  of  her  own  house 
and  of  an  income :  —Held,  that  the  damage 
alleged  as  the  consequence  of  the  slander  was 
not  special  damage  so  as  to  give  a  cause  of 
action.  Weldon  v.  De  Batlw,,  54  L.  J.,  Q.  B. 
113;  33  W.  R.  328— C.  A. 


Ho  Special  Damage— Novice  in  Religious 


Community.] — In  an  action  of  slander  for 
words  imputing  unchastity  to  the  plaintiff 
(alleging,  in  substance,  that  she  had  left  her 
home,  not  to  go  into  a  convent,  but  because  she 
was  pregnant),  the  plaintiff  alleged  that  the 
words  were  spoken  of  her  as  a  novice  in  a 
religious  community,  and  that,  by  reason  of  the 
slander  (1),  she  was  disqualified  from  continuing 
as  a  novice ;  (2),  disqualified  from  re-entering 
the  community,  as  she  bona  fide  intended,  after 
leave  of  absence  for  the  purpose  of  attending  a 
sick  relative  ;  (3),  she  was  shunned  and  avoided 
by  her  neighbours  and  friends.  The  plaintiff  had 
admittedly  entered  the  community  as  a  postulant, 
and  commenced  her  novitiate,  but  left  within 
seven  months  of  her  admission,  and  was 
continuously  absent  for  three  years  before  the 
date  of  the  slander.  No  evidence  was  given 
that  the  slander  reached  the  community. 
By  the  rules  of  the  community  six  months 
should  be  spent  therein  as  a  postulant,  and 
two  yeare  as  a  novice,  before  profession  as  a 
nun,  until  which  the  postulant  or  novice  acquired 
no  status  in  the  community.  The  sisters  of  the 
community  were  precluded  from  holding  any 
worldly  goods,  and  on  profession,  took  vows  of 
poverty,  the  income  of  their  property  (if  any) 
being  held  for  the  benefit  of  the  institution ; 
and  the  Rev.  Mother  was  directed,  according  to 


the  rules  of  the  Council  of  Trent,  to  provide  for 
the  wants  of  those  who  were  subject  to  her  in 
food,  clothing,  &c. :— Held,  that  assuming  the 
words  to  have  been  spoken  of  the  plaintiff  as  a 
novice,  they  were  not  actionable  per  se,  or  with- 
out evidence  of  special  damage  ;  and  that  there 
was  no  evidence  of  special  damage  within  the 
rules  of  law  applicable  to  cases  of  oral  slander 
sufficient  to  sustain  the  action.  Dtoyer  v. 
Meehun,  18  L.  R.,  Ir.  138— C.  P.  D. 

Indictable  Offence— Larceny  by  Husband  of 
Wife's  Property.]— It  is  no  offence  for  a  hus- 
band to  take  his  wife's  money  while  they  are 
living  together  ;  sed  aliter  while  they  are  living 
apart.  Therefore,  words  spoken  amounting  in 
substance  to  an  allegation  that  a  husband  has 
robbed  his  wife,  and  nothing  more,  will  not  sup- 
port an  action  for  slander  by  the  husbandagainst 
the  speaker,  since  they  do  not  in  themselves 
impute  an  indictable  offence.  Lemon  v.  Simmont, 
57  L.  J.,  Q.  B.  260  ;  36  W.  R.  851— D. 

Section  12  of  the  Married  Women's  Property 
Act,  1882,  which  alone  creates  any  such 
offence  on  the  part  of  the  husband,  contains  a 
proviso  that  "  no  criminal  proceeding  shall  be 
taken  by  any  wife  against  her  husband  while 
they  are  living  together  as  to  or  concerning  any 
property  claimed  by  her,  nor  while  they  are 
living  apart  as  to  or  concerning  any  act  done 
by  the  husband  while  they  were  living  together, 
concerning  property  claimed  by  the  wife,  unless 
such  property  shall  have  been  wrongfully  taken 
by  the  husband  when  leaving  or  deserting,  or 
about  to  leave  or  desert,  his  wife."  Accordingly, 
unless  the  words  complained  of  allege  that, 
besides  robbing  his  wife,  the  husband  was  living 
apart  from,  or  deserting,  or  about  to  desert  her, 
they  contain  no  imputation  of  an  indictable 
offence,  and  consequently  impute  no  actionable 
slander.     lb. 

In  respect  of  Trade— Publication  in  Trade 
Hewspaper  of  Extract  from  Register  of  Judg- 
ments.]— The  plaintiff  was  a  hatter  against 
whom  a  judgment  had  been  obtained  in  the 
county  court.  The  judgment  remained  un- 
satisfied pending  an  appeal,  which  appeal  the 
plaintiff  subsequently  abandoned, and  thereupon 
he  satisfied  the  judgment,  but  omitted  to  get  the 
fact  of  satisfaction  entered  on  the  register.  The 
defendants  published  a  trade  newspaper,  and  in 
a  column  headed  "  The  Gazette  "  appeared  a  list 
of  judgments  entered  on  the  county  court 
register,  in  which  the  name  of  the  plaintiff  with 
the  judgment  against  him  was  inserted.  The 
plaintiff  brought  an  action  for  libel,  alleging  by 
innuendo  that  the  insertion  of  his  name  in  that 
column  implied  that  the  judgment  remained 
unsatisfied,  and  that  he  was  unworthy  of  credit 
The  defendants  denied  the  innuendo.  The  judge 
held  that  the  publication  was  capable  of  being 
defamatory,  and  a  jury  found  a  verdict  for  the 
plaintiff  :— Held,  that  the  meaning  of  the  allega- 
tion was  properly  left  for  the  jury ;  and  that, 
the  jury  having  found  such  to  be  its  meaning, 
together  with  the  fact  that  the  statement  was 
not  true,  the  statement  as  published  was  a  libel 
Williams  v.  Suuth.  22  Q.  B.  D.  134  ;  58  L.  J.,Q. 
B.  21 ;  59  L.  T.  757  ;  37  W.  R.  93  ;  52  J.  P.  825 
— D. 

libel  injurious  to  Trade.  ]— &e  Tbadk. 


688 


DEFAMATION— In  Ordinary  Gases. 


634 


2.  Privilege. 
a.  Absolute. 

Member  of  Parliament — Words  spoken  in 
Dtbtte.]— Words  spoken  by  a  member  of  parlia- 
ment in  parliament  are  absolutely  privileged  : 
the  ooart  has  no  jurisdiction  to  entertain  an 
action  in  respect  of  them,  and  will  upon  motion 
let  aside  the  writ  of  summons  and  statement  of 
claim  in  such  action.  Billon  v.  Balfour,  20  L. 
R.,  It.  600— Ex.  D. 

Advocate  in  Judicial  Proceedings.] — No  action 
will  lie  against  an  advocate  for  defamatory  words 
ipoken  with  reference  to  and  in  the  course  of 
an  inquiry  before  a  judicial  tribunal,  although 
they  are  uttered  by  an  advocate  maliciously,  and 
not  with  the  object  of  supporting  the  case  of  his 
client,  and  are  uttered  without  any  justification 
or  even  excuse,  and  from  personal  ill-will,  or 
anger  towards  the  person  defamed  arising  ont  of 
a  previously-existing  cause,  and  are  irrelevant  to 
ever?  issue  of  fact  which  is  contested  before  the 
tribunal  Muntter  v.  Lamb.  11  Q.  B.  D.  588; 
52  L  J.,  Q.  B.  726  ;  49  L.  T.  262  ;  32  W.  R. 
248 ;  47  J.  P.  806— C.  A. 

H.  was  charged  before  a  court  of  petty  sessions 
with  administering  drugs  to  the  inmates  of  M/s 
boose  in  order  to  facilitate  the  commission  of  a 
burglary  at  it.  M.  was  the  prosecutor,  and  L., 
who  was  a  solicitor,  appeared  for  the  defence  of 
H.  There  was  some  evidence,  although  of  a 
very  slight  character,  that  a  narcotic  drug  had 
been  administered  to  the  inmates  of  M.'s  house 
upon  the  evening  before  the  burglary,  and  H. 
had  been  at  M.'s  house  on  that  evening.  During 
the  proceedings  before  the  court  of  petty  sessions, 
L-,  acting  as  advocate  for  H.,  suggested  that  M. 
might  be  keeping  drugs  at  his  house  for  immoral 
or  criminal  purposes.  There  was  no  evidence 
that  M.  kept  any  drugs  for  those  purposes  : — 
Held,  that  no  action  by  M.  for  defamation  would 
lie  against  L.  Kendtllon  v.  Maltby  (0.  &  M. 
402 ;  2  M.  fe  R.  438),  dissented  from.    lb. 


b.  Qualified. 

Pabliestlon  of  Privileged  Communication  by 
litis*  Megligence.]—  The  defendant  wrote 
defamatory  statements  of  the  plaintiff  in  a  letter 
to  W.  under  circumstances  which  made  the 
publication  of  the  letter  to  W.  privileged,  but  by 
mistake  the  defendant  placed  it  in  an  envelope 
directed  to  another  person  who  received  and  read 
the  letter.  In  an  action  for  libel  : — Held,  that 
the  letter  having  been  written  to  W.  under  cir- 
eamstances  which  caused  the  legal  implication  of 
malice  to  be  rebutted,  the  publication  to  the 
other  person,  though  made  through  the  negli- 
gence of  the  defendant,  was  privileged  in  the 
absence  of  malice  in  fact  on  his  part.  Tompson 
v.  Daskwood,  1 1  Q.  B.  D.  43 ;  52  L.  J.,  Q.  B.  425  ; 
48  L.  T.  943  ;  48  J.  P.  65— D. 

leports  in  sTewspapers.]— In  an  action  to 
recover  damages  for  libel  it  appeared  that  the 
appellants  had  in  their  newspaper  falsely  charged 
toe  respondent,  a  public  officer,  with  specific 
acts  of  misconduct  in  the  execution  of  the  duties 
of  his  office,  had  vouched  for  the  truth  of  those 
charges,  and  on  the  assumption  of  their  truth, 
eommented  on  his  proceedings  in  highly  offensive 
and  injurious  language  : — Held,  that  they  were 


liable.  The  privilege  which  covers  fair  and  ac- 
curate reports  of  proceedings  in  parliament  and 
in  courts  of  justice  does  not  extend  to  fair  and 
accurate  reports  of  statements  made  to  the  editors 
of  newspapers.  Bams  v.  Shepttone,  11  App. 
Cas.  187  ;  55  L.  J.,  P.  C.  51  ;  56  L.  T.  1  ;  34  W. 
R.  722 ;  50  J.  P.  709— P.  C. 

Hewspaper  Criticism  of  Stage  Play — "Fair 
Criticism."] — Where  an  action  of  libel  is  brought 
in  respect  of  a  comment  on  a  matter  of  public 
interest  the  case  is  not  one  of  privilege,  properly 
so  called,  and  it  is  not  necessary  in  order  to  give 
a  cause  of  action  that  actual  malice  on  the  part 
of  the  defendant  should  be  proved.  The  question 
whether  the  comment  is  or  is  not  actionable 
depends  upon  whether  in  the  opinion  of  the  jury 
it  goes  beyond  the  limits  of  fair  criticism. 
Campbell  v.  SpottUwoode  (3  B.  &  S.  769)  ap- 

E roved  and  followed.  Ifmwood  v.  Harrison  (7 
i.  R.,  C.  P.  606)  dissented  from.  Mericale  v. 
Carton,  20  Q.  B.  D.  275  ;  58  L.  T.  331  ;  36  W. 
R.  231  ;  62  J.  P.  261— C.  A. 

Report  of  Proceedings  in  Court  of  Justice — 
Publication  of  Judgment  alone.  J — A  fair  and 
accurate  report  of  the  judgment  in  an  action, 
published  bona  fide,  and  without  malice,  is  pri- 
vileged, although  not  accompanied  by  any  report 
of  the  evidence  given  at  the  trial.  Defendants 
published  in  the  form  of  a  pamphlet  a 
report  of  the  judgment  delivered  in  a  former 
action  which  plaintiff  had  brought  against  them. 
The  pamphlet  contained  no  separate  report  of 
the  evidence  given  at  the  trial  and  there  were 
passages  in  the  judgment  reflecting  on  plaintiff's 
character.  In  an  action  for  libel  in  respect  of 
such  publication  the  jury  found  that  the  pamphlet 
was  a  fair,  accurate,  and  honest  report  of  the 
judgment,  and  was  published  bona  fide  and  with- 
out malice  : — Held,  that  it  was  not  necessary  to 
ask  the  jury  whether  the  pamphlet  was  a  fair 
report  of  the  trial,  that  the  right  questions  had 
been  left  to  the  jury,  and  that  the  defendants 
were  entitled  to  judgment  on  the  findings. 
Macdougal  v.  Knight,  17  Q.  B.  D.  636  ;  55  L.  J., 
Q.  B.  464  ;  55  L.  T.  274 ;  34  W.  R.  727  ;  51  J.  P. 
38 — C.  A.  Affirmed  on  other  grounds,  14  App. 
Cas.  194  ;  60  L.  T.  762— H.  L.  (K.). 

Letter  to  Lords  of  Privy  Council.  ]— An  action 
of  libel  may  be  maintained  for  statements  in  a 
letter  addressed  to  the  Privy  Council  injurious  to 
the  character  of  the  plaintiff,  a  public  officer 
removable  by  the  Privy  Council,  upon  proof  of 
express  malice  in  the  defendant.  Proctor  v. 
Webster,  16  Q.  B.  D.  112  ;  56  L.  J.,  Q.  B.  150  ; 
53  L.  T.  765— D. 

Other  Parties  present  at  time  of  Publication.] 

— The  defendant  wrote  down  at  the  instance  of 
W.  T.  a  statement  to  the  effect  that  he,  W.  T., 
had  robbed  W.,  whose  manager  the  defendant 
was,  with  the  connivance  of  the  plaintiff,  and 
that  he,  W.  T.,  thereby  promised  to  repay  the 
moneys  so  stolen  by  weekly  instalments.  W., 
the  defendant's  wife,  and  D ,  who  was  also  in  the 
employ  of  W.,  were  present  at  the  tim»».  After- 
wards the  defendant  obtained  the  signature  of 
D.  as  witness  to  the  statement  he  had  written 
down : — Held,  that  the  communication,  being 
made  and  written  down  in  the  interests  of  the 
employer,  was  protected,  and  that  that  protec- 
tion was  not  taken  away  by  reason  of  the  presence 
of  those  other  parties  at  the  time  of  the  publi- 


635 


DEFAMATION— In  Ordinary  Cases. 


636 


cation.    Jones  v.  Thomas,  53  L.  T.  678  ;  34  W. 
R.  104  ;  50  J.  P.  149— D. 

Injury  to  Trade  —  Erroneous  Statement  of 
Judgment  in  former  Action  —  Injunction  — 
Damages.] — The  plaintiff,  who  traded  as  R.  H. 
&  Co.,  and  the  defendants,  who  traded  as  R.  H. 
&  Sons,  were  rival  manufacturers  of  sail-cloth. 
The  plaintiff  had  formerly  been  a  partner  in  the 
defendants'  firm.  In  1885  the  defendants  brought 
an  action  against  the  plaintiff,  claiming  (inter 
alia)  an  injunction  to  restrain  him  from  repre- 
senting his  firm  to  be  the  original  firm  of  R.  H. 
&  Sons.  At  the  trial  the  action  was  dismissed 
without  costs  as  to  that  issue,  and  with  costs  as 
to  the  other  issues :  the  judge  being  satisfied  by 
the  evidence  that  the  then  defendant  had  never 
made  any  such  representation,  but  that  on  two 
or  three  occasions  one  of  his  agents  without  his 
knowledge  or  concurrence  had  represented  that 
the  then  defendants'  firm  was  the  original  firm. 
The  then  defendant  repudiated  this  as  soon  as  he 
knew  it,  and  at  the  trial  he  offered  by  his  counsel 
to  give  an  undertaking  that  he  would  never  make 
such  a  representation :  this  undertaking  was 
inserted  in  the  judgment  with  the  defendant's 
assent.  In  1886  the  present  defendants  distri- 
buted a  printed  circular,  which  stated  that  they 
were  the  original  firm,  and  after  giving  the  title 
of  the  former  action,  headed  by  the  word 
"Caution,"  proceeded:  "By  the  judgment  the 
defendant  was  ordered  to  undertake  not  to  re- 
present that  his  firm  is,  or  that  the  plaintiff's  firm 
is  not  the  original  firm  of  R.  H.  &  Sons.  Messrs. 
R.  H.  &  Sons,  finding  that  serious  misrepresenta- 
tions were  in  circulation  to  their  prejudice,  felt 
themsel  ves  compelled  to  bring  the  above  action  " : 
— Held,  that  the  circular  contained  an  untrue 
statement  of  the  effect  of  the  judgment  in  the 
former  action ;  that  it  was  a  libel  injurious  to 
the  plaintiffs'  trade  ;  that  it  was  not  privileged  ; 
that  the  defendants  had  published  it  maliciously ; 
and  that  the  plaintiff  was  entitled  to  an  injunc- 
tion, with  the  costs  of  the  action.  But  there 
being  no  evidence  of  damage  to  the  plaintiff, 
except  his  own  affidavit  that  the  publication  of 
the  circular  was  calculated  to  injure  him,  and 
had  injured  him,  in  his  business,  which  he  said 
had  greatly  fallen  off  since  the  issue  of  it ;  and 
the  plaintiff  not  having  brought  the  action  till 
three  months  after  he  knew  of  the  publication  of 
the  circular,  only  hi.  damages  were  awarded  to 
him.  Hayward  %  Co.  v.  Hayioard  $  Sons,  34 
Ch.  D.  198  ;  56  L.  J.,  Ch.  287  ;  65  L.  T.  729  ;  35 
W.  R.  392— North,  J. 

Plaintiff  oourting  Blander.] — Where  a  person 
courts  the  alleged  slander  by  a  question,  the  oc- 
casion iB  privileged.  Palmer  v.  HummerUon.,  1 
C.  &  B.  36— Day,  J. 

Express  Malice— Proof.] — Where  evidence  has 
been  given  showing  an  ntterly  untrue  statement 
to  have  been  made,  that  is  of  itself  sufficient 
prima  facie  evidence  of  express  malice.     lb. 


3.  Evidence. 
Of  Express  Malice.] — See  preceding  case. 

Other  parts  of  newspaper  to  show  in  what 
flense  Words  used.] — The  defendant  published 
in  a  newspaper,  of  which  he  was  the  editor  and 


publisher,  several  libels  of  the  plaintiff,  who 
brought  an  action  thereon.  At  the  trial  other 
passages  in  the  same  newspaper,  besides  those 
containing  the  libels  complained  of,  were  shown 
to  the  witnesses.  The  defendant  having  obtained 
a  conditional  order  for  a  new  trial :— Held,  by 
May,  C.J.,  that  other  passages  of  the  same  Dews- 
paper  might  be  adduced  in  evidence  to  illustrate 
the  meaning  of  the  passages  charged  to  be 
libellous:— Held,  by  O'Brien,  J.,  that  other  pub- 
lications by  the  defendant,  whether  contempo- 
raneous, or  precedent,  or  subsequent,  were  not 
admissible  in  evidence  on  the  question  of  the 
sense  of  the  libel  unless  directly  referred  to  and 
in  that  way  virtually  made  part  of  the  libel  com- 
plained of ;  and  that  they  were  only  admissible 
to  prove  malice  or  deliberation,  or  upon  the 
question  of  damages.  Bolton  v.  CPBria^  16 
L.  R.,  Ir.  97- Q.  B.  D. 

Publication  —  Newspaper  —  Liability  of 
Vendor.] — The  vendor  of  a  newspaper  in  the 
ordiuary  course  of  his  business,  though  he  ifi 
prima  facie  liable  for  a  libel  contained  in  it,  is 
not  liable,  if  he  can  prove  that  he  did  not  know 
that  it  contained  a  libel ;  that  his  ignorance  was 
not  due  to  any  negligence  on  his  own  part;  and 
that  he  did  not  know,  and  had  no  ground  for 
supposing,  that  the  newspaper  was  likely  to 
contain  libellous  matter.  If  he  can  prove  those 
facts  he  is  not  a  publisher  of  the  libel  Bat 
whether  such  a  person  can  escape  liability  for 
the  libel  if  he  knows,  or  ought  to  know,  that  the 
newspaper  is  likely  to  contain  libellous  matter, 
Quaere.  Emment  v.  Pottle,  16  Q.  B.  D.  354 ;  55 
L.  J.,  Q.  B.  61  ;  53  L.  T.  808  ;  34  W.  R.  116;  50 
J.  P.  228— C.  A. 

Publication— Husband  to  Wife.  1— In  an 


action  for  libel  the  fact  that  the  defendant  has 
disclosed  the  libel  to  his  wife  is  not  evidence  of 
publication.  Wtnnhak  v.  Morgan,  20  Q.  B.  D. 
686  ;  67  L.  J.,  Q.  B.  241  ;  59  L.  T.  28  ;  36  W.  B. 
697  ;  62  J.  P.  470— D. 


4.  Pbactick  and  Pleading. 

Particulars  —  If  amee  of  Persons  to  wftea 
Slander  uttered.]— The  plaintiff  in  an  action  of 
slander  may  be  ordered,  before  defence  has  been 
delivered,  to  give  particulars  of  the  names  of  the 
persons  to  whom  the  alleged  slander  was  uttered. 
RoteUe  v.  Buchanan,  16  Q.  B.  D.  656 ;  55  L.  J- 
Q.  B.  376  ;  34  W.  R.  488— D. 

In  an  action  for  slander,  where  the  statement 
of  claim  alleged  that  one  T.  at  the  request  and 
by  the  direction  of  the  defendant  uttered  the 
slander  complained  of,  the  plaintiff  was  ordered 
to  give  particulars  of  the  names  of  the  personi 
to  whom,  and  of  the  place  at  which,  such  slander 
was  uttered.  Bradbury  v.  Cooper,  12  Q.  B.  H 
94  ;  53  L.  J.,  Q.  B.  558  ;  32  W.  B.  32 ;  48  J.  P. 
198— D. 

Publications  of  libel.] — In  an  action  for 

libel  brought  by  a  director  of  a  company 
against  a  committee  of  shareholders  in  the 
company  for  statements  contained  in  a  report 
drawn  up  and  alleged  to  be  maliciously  pub- 
lished by  them,  the  defendants  had  obtained, 
after  the  close  of  the  pleadings,  an  order  for 
particulars  of  the  occasion  of  any  publication  by 
them  to  persons  other  than  shareholders : — Held, 


687 


DEFAMATION— In  Ordinary  Cases. 


638 


tot  the  defendants  were  not  entitled  to  such 
particalan,  since  the  publication  complained  of 
clearly  included  publication  to  others  than  share- 
holders, though  not  expressly  so  stated,  and 
sufficiently  complied  with  the  requirements  of 
OnL  XIX.  r.  4  as  to  pleadings.  RoseVe  v.  Bu- 
tt**** (16  Q.  B.  D.  656)  distinguished,  as  ap- 
plicable only  to  actions  of  slander.  Oouraud  v. 
Rtyeraid,  37  W.  R.  55—  D.  Affirmed  37  W.  B. 
Jtt-GA. 

—  Defence  that  Libels  true  in  Substance 
tMi  ia  fact ]— The  defendant  published  articles 
alleging  that  the  plaintiff,  who  was  Governor  of 
Mauritius,  had  been  charged  by  members  of  the 
council  with  sending  to  the  Colonial  Office  garbled 
reports  of  their  speeches.    The  articles  were  also 
alleged  by  the  plaintiff  to  impute  that  he  had  in 
fact  transmitted   such   garbled   accounts.    An 
action  for  libel  having  been  brought,  the  de- 
fendant pleaded  that  the  alleged  libels  were  true 
in  substance  and  in  fact : — Held,  that  plaintiff 
was  entitled  to  further  and  better  particulars,  it 
not  being  clear  whether  the  defence  meant  that 
what  was  charged  against  the  plaintiff  had  been 
troly  reported,  or  that  what  was  reported  to 
bare  been  charged  was  in  fact  true.    Hennessy 
r.  Wright,  57  L.  J.,  Q.  B.  594  ;  59  L.  T.  795  ;  36 
W.  R.  87ft— C.  A. 

Interrogatories —  Wewtpaper  —  Hams  of  Cor- 
wspoadent — Manuscript.] — In  an  action  against 
the  publisher  of  a  newspaper  for  a  libel  con- 
tained in  a  letter  from  a  correspondent  and  in  a 
leading  article  thereon,  the  defence  was  that  the 
alleged  libel  consisted  of  an  accurate  report  of 
certain  poblic  proceedings  and  fair  comment 
thereon : — Held,  that  the  plaintiff  was  not  en- 
titled to  interrogate  the  defendant  as  to  the 
names  of  the  persons  on  whose  information  the 
reports  were  based,  or  the  name  of  the  corre- 
spondent who  wrote  the  letter,  or  as  to  the 
original  manuscript  of  the  letter.  Hennessy  v. 
Wright,  36  W.  R.  879— C.  A. 

— -  As  to  Publication.] — In  an  action  for 
libel  m  which  the  defendant  traversed  the  pub- 
lication ;  denied  that  the  words  were  published 
of  the  plaintiff,  or  in  the  defamatory  sense 
alleged,  and  pleaded  fair  comment ;  the  plaintiff 
exhibited  interrogatories,  asking  whether  the 
defendant  published  the  libel  in  two  Irish 
papers  specified  in  the  interrogatories,  and 
whether  the  words  were  not  published  of  the 
plaintiff.  The  defendant  was  also  interrogated 
(No.  4)  as  to  whether  he  did  not  publish  the 
words  complained  of  "in  the  London  Times 
otwepaper,  or  some  other  and  what  newspaper  ? " 
*  When  did  such  publication  take  place  ? "  The 
defendant  answered  all  the  interrogatories  in 
tbe  one  answer  as  follows  :— "  That  in  bona  fide 
cwBJuent  on  the  conduct  and  language  of  the 
plaintiff,  and  in  reference  to  matters  of  public 
mterest,  I  caused  to  be  printed  and  published 
of  sod  concerning  the  plaintiff  and  others  in  the 
•"end  newspapers  in  the  said  interrogatories 
aentioned  the  words  in  such  interrogatories 
Rferred  to,  honestly  believing  the  same  to  be 
true  and  without  malice  "  :—  Held,  that  except  as 
to  the  fourth  interrogatory,  the  answer  was 
efficient  and  was  not  objectionable,  on  tbe 
pound  of  its  qualified  form,  but  that  a  further 
answer  should  be  given  to  No.  4,  giving  the  date 


of   the  alleged    publication.    Malone  v.   Fitz- 
gerald, 18  L.  R.,  Ir.  187— Ex.  D. 


Material   Facts  —  Uames   of    Persons, 


though  probably  Witnesses.  J — In  an  action  for 
libel  the  defendant  pleaded  that  the  libel  was 
true.  The  substance  of  the  libel  was  that  the 
plaintiff  had  fabricated  a  story  to  the  effect 
that  a  certain  circular  letter  purporting  to  be 
signed  by  the  defendant  had  been  sent  round  to 
the  defendant's  competitors  in  business.  The 
plaintiff  had  in  speeches  and  letters  stated  that 
he  had  seen  a  copy  of  the  alleged  letter,  that 
two  of  such  letters  were  in  existence  in  the 
possession  respectively  of  a  firm  of  bankers  and 
a  firm  of  manufacturers  at  Birmingham,  and 
that  his  informant  in  the  matter  was  a  solicitor 
of  high  standing  at  Birmingham.  In  interro- 
gatories administered  by  the  defendant  the 
plaintiff  was  asked  to  state  the  name  and 
address  of  his  informant,  in  whose  hands  he  had 
seen  the  copy  of  the  letter,  and  the  names  and 
addresses  of  the  persons  to  whom  the  letter  had 
been  sent,  and  in  whose  possession  the  two 
letters  existed  ;  but  he  refused  to  do  so  on  the 
ground  that  he  intended  to  call  those  persons  as 
his  witnesses  at  the  trial : — Held,  that  the  de- 
fendant was  entitled  to  discovery  of  the  names 
and  addresses  of  such  persons  as  being  a  sub- 
stantial part  of  facts  material  to  the  case  upon 
the  issue  on  the  plea  of  justification.  Marriott 
v.  Chamberlain,  17  Q.  B.  D.  154  ;  55  L.  J.,  Q.  B. 
448  ;  54_L.  T.  714  ;  34  W.  R.  783— C.  A. 

Pleading — Defence — General  Reputation  of 
Plaintiff.] — The  plaintiff,  a  professional  jockey, 
sought  to  recover  damages  for  a  libel  which 
stated  that  he  was  in  the  habit  of  pulling  horses 
belonging  to  a  certain  stable.  The  defendant 
pleaded  a  justification,  but  sought  leave  to  amend 
his  defence  by  stating  that  the  plaintiff  was 
commonly  reputed  to  have  been  in  the  habit  of 
so  unfairly  and  dishonestly  riding  horses  (gene- 
rally and  not  of  a  particular  stable)  as  to  pre- 
vent their  winning  races :  —  Held,  that  the 
amendment  could  not  be  allowed,  since  it  was 
a  plea  to  damages  only.  Rules  4  and  15  of 
Ord.  XIX.  apply  to  such  facts  as  are  material 
to  the  cause  of  action  or  defence,  and  not  to 
damages.  Wood  y.  Durham  (Earl),  21  Q.  B.  D. 
601 ;  57  L.  J.,  Q.  B.  547 ;  59  L.  T.  142  ;  37  W. 
R.  222— D. 

Injunction  to  restrain  Libel— In  what  Cases 
granted.] — Since  the  passing  of  the  Judicature 
Acts  the  court  has  jurisdiction  to  restrain  by  in- 
terlocutory injunction  the  publication  of  a  trade 
libel,  but  as,  if  it  grants  such  an  injunction,  it 
must  pronounce  the  publication  to  be  libellous 
before  it  has  been  found  so  by  a  jury,  the  juris- 
diction is  to  be  exercised  only  in  the  clearest 
cases,  where  any  jury  would  say  that  the  matter 
complained  of  was  libellous,  and  where  if  they 
found  otherwise  their  verdict  would  be  set  aside 
as  unreasonable.  Liverpool  Household  Stores 
Association  v.  Smith,  37  Ch.  D.  170 ;  57  L.  J., 
Ch.  85 ;  67  L.  T.  770 ;  58  L.  T.  204 ;  36  W.  R. 
485— C.  A. 

The  question  as  to  granting  injunctions  to 
restrain  publication  in  a  newspaper  of  reports 
and  correspondence  containing  unfavourable 
statements  as  to  the  position  and  solvency  of  a 
joint  stock  company,  considered.     Injunction  to 


639 


DEFAMATION— Criminal  Proceedings. 


640 


restrain  the  publication  of  future  articles  reflect- 
ing unfavourably  on  a  company,  refused  on  the 
ground  of  the  difficulty  of  granting  an  injunc- 
tion which  would  not  include  matters  that  might 
turn  out  not  to  be  libellous ;  and  because  if  the 
injunction  was  granted  in  terms  to  restrain  what 
was,  libellous,  the  question  of  libel  or  no  libel 
would  have  to  be  tried  in  a  very  unsatisfactory 
way  on  motion  to  commit.    lb. 

The  court  has  jurisdiction  under  the  Judica- 
ture Act  to  grant  an  interlocutory  injunction 
restraining  the  publication  of  libels  alleged  to  be 
injurious  to  the  plaintiffs  trs.de  before  delivery 
of  the  statement  of  claim  in  an  action  to  recover 
damages  for  such  libels.  Punch  v.  Boyd,  16 
L.  R.,  Ir.  476— Q.  B.  D. 


Oral  Blander.]  —  B.  was  employed  to 


manage  one  of  L.'s  branch  offices  for  the  sale 
of  machines,  and  resided  on  the  p  emises.  lie 
was  dismissed  by  L.,  and  on  leaving  gave  the 
postmaster  directions  to  forwaid  to  his  private 
residence  all  letters  addressed  to  him  at  L.s 
branch  office.  He  admitted  that  among  the  let- 
ters so  forwarded  to  him  were  two  which  related 
to  L.'s  business,  and  that  he  did  not  hand  them 
to  L.,  but  returned  them  to  the  sender**.  After 
his  dismissal  he  went  about  among  the  customers, 
making  oral  statements  reflecting  on  the  solvency 
of  L.,  and  advised  some  of  them  not  to  pay  L. 
for  machines  which  had  been  supplied  through 
himself.  L.  brought  an  i.ction  to  restrain  B. 
from  making  statements  to  the  customers  or  any 
other  person  or  persons  that  L.  was  about  to  stop 
payment,  or  was  in  difficulties  or  insolvent,  and 
from  in  any  manner  slandering  L.  or  injuring  his 
reputation  or  business, and  from  giving  notice  to 
the  post-office  to  forward  to  B.s  residence  letters 
addressed  to  him  at  L.'s  office,  and  also  asking 
that  he  might  be  ordered  1o  withdraw  the  notice 
already  given  to  the  post-office  : — Held,  that  the 
court  has  jurisdiction  to  restrain  a  person  from 
making  slanderous  statements  calculated  to  injure 
the  busintss  of  another  person,  and  that  this 
jurisdiction  extends  to  oral  as  well  as  written 
statements,  though  it  requires  to  be  exercised 
with  great  caution  as  ix gards' oral  statements ; 
and  that  in  the  present  case  an  injunction  ought 
to  be  granted.  Ht  rmann  Lvvg.  v.  litan,  26  Ch. 
D.  306 ;  53  L.  J.,  Ch.  1128  ;  61  L.  T.  442 ;  32 
W.  R.  994  ;  48  J.  P.  708— C.  A. 


II.    CRIMINAL    PROCEEDINGS. 

newspaper— Information  filed  without  Fiat] 
— The  3rd  section  of  the  Newspaper  Libel  and 
Registration  Act,  1881,  which  en  arts  that  no 
criminal  prosecution  shall  be  commenced  against 
any  proprietor,  publisher,  or  editor,  or  any  person 
responsible  for  the  publication  of  a  newspaper, 
for  any  libel  published  ihcrein,  without  the 
written  fiat  or  allowance  of  the  Director  of 
Public  Prosecutions  in  England,  or  her  Majesty's 
Attorney-General  in  Irelat.d,  being  first  had  and 
obtained,  docs  not  apply  to  a  criminal  informa- 
tion for  libel  filed  by  order  of  the  court.  Yatc* 
v.  Beg.,  14  Q.  B.  D.  648  ;  54  L.  J.,  Q.  B.  258  ;  62 
L.  T.  305  ;  33  W.  R.  482 ;  49  J.  P.  436— C.  A. 

Fiat  of  Director  of  Pubic  Prosecutions 


— "  Editor."]— The  fiat  of  the  Director  of  Public 
Prosecutions  had  beeu  granted,  under  8.  3  of  the 
Newspaper  Libel  Act,  1881.  against  the  *•  editor" 


of  the  newspaper  in  question  without  naming 
him  : — Held,  by  the  majority  of  the  court,  that 
Kuch  fiat  was  bad,  and  that  the  conviction 
should  be  quashed.  Reg.  v.  Judd,  37  W.  K.  14$ 
— C.  C.  R. 


Directors  and  Signatories  to  Article*, 


Liability  of.  ] — A  limited  cum  pany  having  printed 
a  newspaper  containing  a  libel  for  another  limited 
company,  who  published  the  same  :— Held,  that 
in  the  absence  of  evidence  of  knowledge  of  the 
contents  of  the  newspaper  the  directors  of  the 
former  company  and  the  signatories  to  the  articles 
of  association  of  the  latter  company  were  wronglj 
convicted.     lb. 

Criminal  Information — When  granted.]— A 
criminal  information  does  not  lie. against  a  party 
*  ho  has  accused  by  letter  a  post-mistress  of 
opening  letters  and  tampering  with  them ;  there 
must  be  some  special  circumstances  to  entitle 
the  applicant  to  that  extraordinary  remedy. 
The  proper  remedy  is  by  indictment.  LUtleU* 
(Pott-mUtrtu'),  Ex  parte,  62  J.  P.  264— D. 


libel  upon  Deceased  Foreigners— Appli- 
cant resident  Abroad.] — Upon  application  for 
leave  to  file  a  criminal  information  in  respect  of 
a  libel  upon  a  deceased  foreign  nobleman  made 
by  his  representative  who  was  not  resident  in 
this  country : — Held,  that  the  court,  in  the  exer- 
cise of  its  discretion,  must  reject  the  application, 
for  the  rule  to  be  collected  from  the  modern 
decisions  is  that  a  criminal  information  for  libel 
can  only  be  granted  at  the  suit  of  persons  who 
are  in  6ome  public  office  or  position,  and  not  at 
the  suit  of  private  persons.  Reg.  v.Labouchm, 
12  Q.  R.  D.  320 ;  53  L.  J.,  Q.  B.  362 ;  50  L  T. 
177  ;  32  W.  R.  861  ;  48  J.  P.  165  ;  16  Cox,  C.  C. 
415— D. 

Held,  also,  that  the  fact  that  the  applicant 
does  not  reside  in  this  country  is  a  strong  reason 
for  rejecting  such  an  application.  Semble,  that 
an  application  for  a  criminal  information  for  a 
libel  u])on  a  deceased  person,  made  by  his  repre- 
sentative, will  not  be  granted.    lb. 

Evidence  of  Publication— Editor  or  Publisher.] 
— On  the  trial  of  two  persons  on  an  indictment 
for  publishing  blasphemous  libels  in  a  certain 
print  or  paper,  on  which  their  names  were  given, 
one  as  printer  the  other  as  publisher — proof  of 
their  identity  with  the  persons  whose  names 
were  so  given,  or  any  evidence  merely  connecting 
them  with  the  paper,  held  not  sufficient  to  fix 
them  with  liability.  The  7th  section  of  the 
Libel  Act  (6  &  7  Vict,  c  76),  being  held  to  away, 
and  to  require  evidence  that  they  published  the 
libels,  and  not  merely  the  papers  in  which  they 
were  contained.  Evidence  that  one  of  them 
published  the  paper  held  sufficient  prims  facie 
case  as  against  him,  without  any  express  evi- 
dence that  he  knew  of  the  libels.  But  express 
evidence  as  to  the  other,  that  he  was  editor,  held 
not  sufficient,  without  evidence  that  he  directed 
the  insertion  of  the  libel.  Reg.  v.  Ramsay,  15 
Cox,  C.  C.  231  ;  1  C.  &  E.  126— Coleridge,  C.J. 

What  amounts  to  a  Blasphemous  LibeL]— The 
mere  denial  of  the  truth  of  the  Christian  reli- 
gion, or  of  the  scriptures,  is  not  enough,  per  se, 
to  constitute  a  writing  a  blasphemous  libel,  so 
as  to  render  the  writer  or  publisher  indictable. 
But  indecent  and  offensive  attacks  on  Christianity 


641 


DETINUE. 


642 


or  the  scriptures,  or  sacred  persons  or  objects, 
calculated  to  outrage  the  feelings  of  the  general 
bodjof  the  community,  do  constitute  the  offence 
of  blasphemy,  and  render  writers  or  publishers 
liable  at  common  law  to  criminal  prosecution. 
Rf$.  t.  Ravuay,  48  L.  T.  733 ;  15  Cox,  C.  C.  231  ; 
1  C.  *  E.  126— Coleridge,  C.  J. 

Indictment—"  Knowing  the  same  to  be  false  " 
-Conviction  for  Publication  only.] — On  an  in- 
dictment for  publishing  a  defamatory  libel 
M  knowing  the  same  to  be  false,"  the  defendant 
may  be  convicted  of  merely  publishing  a  defa- 
matory libeL  Boaler  v.  Reg.,  21  Q.  B.  D.  284  ; 
57  L.  J.,  M.  C.  85  ;  59  L.  T.  554  ;  37  W.  R.  29  ; 
52  J.  P.  791 ;  16  Cox,  C.  C.  488— D. 

—  Hotion  to  Quash.]  —An  indictment  for 
Kbel  was  framed  under  ss.  4  and  5  of  6  &  7  Vict, 
c.  96,  whereas  the  defendant  was  only  committed 
under  s.  5  of  that  act.  The  judge  refused  to 
quash  the  indictment,  but  quashed  so  much  of 
it  as  purported  to  charge  the  defendant  under 
s.  4.  Reg.  v.  Felbermann,  51  J.  P.  168  — 
Hawkins,  J. 

Wife  against  Husband.] — A  wife  could  not 
before  and  cannot  since  the  Married  Woman's 
Property  Act  take  criminal  proceedings  against 
Her  husband  for  defamatory  libel.  Reg.  v.  London 
(Jfoyor),  16  Q.  B.  D.  772  ;  55  L.  J.,  M.  C.  118  ; 
54  L.T.  761  ;  34  W.  R.  544 ;  50  J.  P.  614  ;  16 
Cox,  C.  C.  81— D. 


DEMURRAGE. 

See  SHIPPING. 


DEMURRER, 

See  PRACTICE. 


DENTIST. 

See  MEDICINE. 


DESCENT. 

See  ESTATE. 


DESIGNS. 

See  TRADE. 


DETINUE. 

Detention  of  Stock — Injunction  to  Restrain 
Dealing  with — Depreciation — Damages.  ] — The 

plaintiffs  having  instructed  their  brokers  to  sell 
stock,  the  latter  fraudulently  deposited  the  cer- 
tificate with  the  C.  Bank.  The  plaintiffs  com- 
menced an  action  for  an  injunction  to  restrain 
the  transfer  of  the  stock,  and  for  damages  for 
the  unlawful  detention.  On  a  motion  for  an 
interlocutory  injunction,  an  order  by  consent 
was  taken  by  which  the  bank  undertook  not  to 
sell  or  deal  with  the  stock  until  the  trial  or 
further  order,  and,  the  plaintiffs  undertaking  in 
the  usual  form  to  abide  by  any  order  as  to 
damages  in  case  the  bank  had  sustained  any  by 
entering  into  their  undertaking,  the  company  in 
which  the  stock  was  were  restrained  from  per- 
mitting a  transfer  without  the  consent  of  the 
plaintiffs.  The  order  was  made  without  preju- 
dice to  any  question.  The  action  went  on  for 
some  months,  after  which  the  bank  gave  up  their 
claim  to  the  stock,  but  declined  to  pay  more 
than  nominal  damages.  The  plaintiffs  accord- 
ingly brought  the  action  on  for  trial  on  the 
question  of  damages  : — Held,  that  the  plaintiffs 
were  entitled  to  substantial  damages  on  account 
of  the  fall  in  the  stock,  the  order  having  been 
obtained  to  prevent  a  wrongful  sale  by  the  bank. 
WUliams  v.  Peel  River  Land  Company,  55  L.  T. 
689— C.  A. 

Power  of  County  Court  to  order  Return  of 
Chattel] — In  an  action  of  detinue  brought  in 
the  county  court,  the  county  court  judge  has 
jurisdiction  to  make  an  order  for  the  delivery  by 
tbe  defendant  of  the  specific  chattel  wrongfully 
detained,  without  giving  him  the  option  of  pay- 
ing its  assessed  value  as  an  alternative.  Win- 
field  v.  Boothroyd,  54  L.  T.  674  ;  34  W.  R.  501 
— D. 


DEVASTAVIT. 

See  EXECUTOR  AND  ADMINISTRATOR. 


DEVISE. 

See  WILL. 


DILAPIDATIONS. 

Ecclesiastical.]— &*6  Ecclesiastical  Law. 
Tenant!.]— See  Landlobd  and  Tenant. 


643 


DISCOVERY— Documents. 


644 


DIRECTOR. 

See  COMPANY. 


DISCLAIMER. 

In  Bankruptcy.]—^  Bankruptcy. 
In  Patentt.]— See  Patent. 


DISCONTINUANCE. 

See  PRACTICE. 


DISCOVERT. 

I.  Documents. 

1.  Who  compelled  to  make,  643. 

2.  In  what  Matters,  645. 

3.  Application  for  Order — Time,  645. 

4.  Privileged  Documents,  646. 

5.  Documents  held  in  Right  of  Another, 

651. 

6.  Sealing  up  Documents,  651. 

7.  The  Affidavit,  652. 

8.  The  Deposit,  654. 

9.  Costs  of  Inspection,  654. 

10.  Interrogatories  as  to, — See  post,  col. 
662. 

II.  INTERBOGATOBIE8. 

1.  To  and  by  what  Persons,  655. 

2.  In  what  Matters,  656. 

3.  Application  for  Order — Time,  657. 

4.  What  admissible,  658. 
6.  Privilege,  663. 

6.  The  Answer,  663. 

III.  Inspection  of  Books  of  Company  on 

Winding-up.— See  Company,  XI., 
12. 

IV.  Inspection  of  Register  of  Shabes.— 

See  Company,  I.,  3,  c. 

V.  Inspection  of  Bankers'  Books.— See 
Evidence. 

VI.  Discovery  in  Aid  of  Execution.— See 
Execution. 


I.    DOCTTKENTS. 
1.  WHO  COMPELLED  TO  MAKE. 

Infant— Hext  Friend.]— The  court  refused 
either  to  order  the  next  friend  of  an  infant 
plaintiff  to  make  an  affidavit  as  to  documents, 
or  stay  the  action  till  he  made  such  affidavit. 
Higginson  v.  Hall  (10  Ch.  D.  235),  dissented 


from.  Dyke  v.  Stephens,  30 
L.  J.,  Ch.  41 ;  53  L.  T.  561 ; 
Pearson,  J. 


Ch.   D.  189 :  55 
33  W.  R.  932— 


"  Opposite  Parties  "  —  Defendant  from  co- 
Defendant.] — The  plaintiff  made  in  the  same 
action  claims  against  two  defendants,  the  claim 
against  one  defendant  being  in  respect  of  tbe 
alleged  breach  of  a  certain  stipulation  of  a  con- 
tract, and  the  claim  against  the  other  defendant 
being  an  alternative  claim  for  negligence  by 
him  as  agent  in  effecting  a  contract  without 
such  stipulation  contrary  to  instructions : — Held, 
that  one  of  such  defendants  could  not  obtain 
discovery  of  documents  in  the  action  from  the 
other,  Ord.  XXXI.  r.  12,  only  providing  for  dis- 
covery between  opposite  parties.  Brum  v. 
WatkiM,  16  Q.  B.  D.  125  ;  55  L.  J.,  Q.  B.  126; 
53  L.  T.  726  ;  34  W.  R.  293— D. 

Plaintiff  from   co-Plaintiff— Defendant 


from  co-Defendant.] — Discovery  by  way  of  pro- 
duction of  documents  may  be  allowed  to  a  plain- 
tiff from  a  co-plaintiff,  or  to  a  defendant  from  a 
co-defendant,  in  cases  in  which  there  may  be 
rights  to  be  adjusted  between  them  respectively. 
Shaw  v.  Smith,  18  Q.  B.  D.  193  ;  56  L.  J.,  Q.  B. 
174  ;  56  L.  T.  40  ;  35  W.  R.  188— C.  A. 

Discovery  cannot  be  allowed  to  a  defendant 
from  a  co-defendant  with  a  view  to  show  that 
the  co-defendant  and  not  the  defendant  is  liable 
to  the  plaintiff,  as  where  a  defendant,  sued  for 
subsidence  under  the  plaintiff's  land,  proposes  ts 
inspect  the  mines  of  a  co-defendant  in  adjoining 
land.  Brown  v.  WatHns  (16  Q.  B.  D.  125) 
explained.    lb. 

By  Person  not  a  Party  to  the  Action.  ]— By 
Ord.  XXXVII.  r.  7,  of  the  Rules  of  Court,  1883, 
the  court  or  a  judge  may  in  any  cause  or  matter 
at  any  stage  of  the  proceedings  order  the  attend- 
ance of  any  person,  for  the  purpose  of  producing 
such  writings  or  other  documents  as  he  could  be 
compelled  to  produce  at  the  hearing  or  trial. 
Central  News  Company  v.  Eastern  News  Tele- 
graph Company,  53  L.  J.,  Q.  B.  236 ;  60  L  T. 
235  ;  32  W.  R.  493— D. 

In  an  action  brought  by  the  plaintiffs  against 
the  defendants  for  an  improper  use  and  publica- 
tion of  certain  telegrams  transmitted  by  them  to 
the  plaintiffs,  the  defendants  applied,  under  Ord. 
XXXVII.  r.  7,  for  the  production  of  certain 
documents  belonging  to  and  in  the  possession 
of  the  Electric  News  Telegraph  Company,  who 
were  not  parties  to  the  action,  with  a  view  of 
showing  that  the  news  contained  in  the  telegrams 
had  been  communicated  by  the  plaintiffs  to  such 
company,  and  by  them  made  public  prior  to  the 
time  at  which  such  news  was  published  by  the 
defendants.  Tbe  defendants  contended  that  tbe 
production  of  the  documents  in  question  would 
simplify  the  proceedings  at  the  trial  and  save 
expense  : — Held,  that  the  power  conferred  on 
the  court  was  one  which,  if  it  existed,  should  be 
exercised  with  extreme  caution,  and  that  no  suffi- 
cient ground  had  been  shown  for  the  production 
of  the  documents  asked  for.    lb. 

Joinder  of  Parties  for  Discovery.]— The  court 
will  not  allow  the  joinder  of  solicitors  or  others 
as  defendants  against  whom  no  further  relief  is 
sought  beyond  discovery  or  payment  of  costs. 
Burstall  v.  Beyfus,  26  Ch.  D.  35  ;  53  L,  J.,  Ch. 
566 ;  50  L.  T.  542 ;  32  W.  R.  418— C.  A. 


645 


DISCOVERY— Document. 


646 


2.  IN  WHAT  MATTERS. 

Artion  for  Penalties,  by  Common  Informer.  ] — 
Id  an  action  for  penalties  by  a  common  informer, 
kare  will  not  be  granted  to  a  plaintiff  to  call 
moii  the  defendant  for  discovery  of  documents. 
Whtidey  v.  Barley,  56  L.  J.,  Q.  B.  312— D.  See 
also  post,  coL  656. 


3.  APPLICATION  FOR  ORDERr-TIME. 

Ground*  for  Ordering — What  may  be  oon- 
aUand.]— Ord.  XXXLrnle  12,  was  not  intended 
entirely  to  alter  the  principles  as  to  production 
of  documents,  bat  to  give  the  court  a  discretion 
to  refuse  the  discovery  of  them  when  there  was 
so  reasonable  prospect  of  its  being  of  any  use. 
On  an  application  for  an  affidavit  of  documents, 
evidence  ought  not  to  be  entered  into ;  the  court 
will  form  its  conclusion  from  the  pleadings,  but 
any  other  proceedings  in  the  action  as,  e.g.,  evi- 
dence used  on  a  former  occasion,  may  be  looked 
at  Downing  v.  Falmouth  United  Sewerage 
Board,  37  Ch.  D.  234 ;  57  L.  J.,  Ch.  234  ;  58 
L  T.  296 ;  36  W.  R.  437  -C.  A. 

In  an  action  to  restrain  a  nuisance  from  sewer- 
age works,  the  plaintiffs,  after  notice  of  trial, 
applied  for  an  affidavit  as  to  documents  in  the 
possession  of  the  defendants  relating  to  the 
matters  in  question  in  the  action.  The  appli- 
cation was  refused  on  the  ground  that  it  was  not 
to  be  presumed  that  the  defendants  had  docu- 
ments in  their  possession  which  would  be  mate- 
rial on  the  question  whether  there  was  a  nuisance 
or  not  The  plaintiffs  appealed,  and  gave  notice 
to  read  the  affidavits  filed  on  an  application  for 
an  interim  injunction,  which  were  about  thirty 
in  number.  From  three  of  these  affidavits  it 
appeared  that  there  had  been  resolutions  passed 
by  the  defendants  bearing  on  the  question  of 
nuisance,  and  a  correspondence  between  them 
and  the  Local  Government  Board  on  their  pro- 
posing an  alteration  in  their  system  of  sewer- 
age :— Held,  that  the  court  was  right  in  refusing 
t&  general  order  asked  for,  but  that  these  affi- 
davits could  be  looked  at  on  the  question  whether 
there  was  sufficient  reason  to  suppose  that  there 
were  no  documents  the  production  of  which 
would  be  of  any  use,  and  an  order  was  made  for 
an  affidavit  limited  to  resolutions  of  the  de- 
fendants, and  correspondence  between  them  and 
the  Local  Government  Hoard  ;  that  the  plaintiffs 
ought  not  to  have  given  notice  to  read  all  the 
tffidavits,  but  ought  to  have  pointed  out  the 
parts  on  which  they  meant  to  rely,  and  they 
were,  therefore,  ordered  to  pay  the  costs  occa- 
■oned  by  the  notice,    lb. 

lefere  Defence  delivered.] — The  court  has  a 
discretion  in  ordering  discovery,  and  there  is  no 
absolute  rule  that  a  defendant  should  not  be 
ordered  to  make  an  affidavit  of  documents  before 
toe  delivery  of  a  defence.  Edelston  v.  Russell, 
57  L.  T.  927— Kekewich,  J. 

The  court  will  as  a  rule  refuse  discovery  of 
documents  before  the  defence  is  delivered,  not- 
withstanding the  wide  expressions  contained  in 
Ord.  XXXL  r.  14.  British  and  Foreign  Con- 
tract Company  v.  Wright,  32  W.  R.  413— D. 

Particulars  of  Fraud  not  given  by  Plaintiff:  J — 
The  plaintiffs  employed  the  defendants  to  pur- 
chase goods,  as    their   agents,  at    the    lowest 


!  possible  prices.  The  plaintiffs  sued  for  an  account, 
and  in  their  statement  of  claim  alleged  that  the 
defendants  had  purchased  goods  at  prices  higher 
than  the  current  prices,  and  had  secretly  received 
from  the  vendors  allowances  or  commissions. 
The  charges  against  the  defendants  were  stated 
in  general  terms,  no  particulars  being  mentioned. 
The  defendants  denied  the  charges,  and  pleaded 
a  settled  account.  The  plaintiffs  applied  for 
production  of  documents: — Held,  by  Cotton, 
L.J.  (dies.,  Fry,  L.J.),  that  the  plaintiffs  were 
not  bound  to  give  particulars  of  fraud  under 
Ord.  XIX.  r.  6,  before  obtaining  discovery  of 
documents.  Whyte  v.  Ahrens,  26  Ch.  D.  717  ; 
54  L.  J.,  Ch.  145  ;  50  L.  T.  344  ;  32  W.  R.  649— 
C.  A. 

Held,  by  Fry,  L.  J.,  that  the  allegations  of 
fraud  in  the  pleadings  not  being  sufficient  to 
enable  the  plaintiffs  to  open  a  settled  account, 
discovery  ought  to  be  refused  until  the  allega- 
tions had  been  made  sufficient.    lb. 

Before  Questions  of  Faet  determined.] — In  an 
action  to  restrain  the  sale  of  goods  under  an 
alleged  infringement  of  plaintiff's  trade-mark 
and  claiming  damages  for  false  representations 
by  defendant  that  his  goods  were  goods  of  the 
plaintiff's  manufacture,  or  in  the  alternative  an 
account  of  profits,  it  was  ordered  that  the  ques- 
tions of  fact  arising  in  the  action  should  be  tried 
by  a  special  jury  before  a  judge : — Held,  that  the 
plaintiff,  who  had  not  made  his  election  between 
damages  and  profits,  was  not  entitled,  before  he 
had  succeeded  in  establishing  his  title  to  relief  by 
the  verdict  of  the  jury  upon  the  questions  of  fact 
in  the  action,  to  discovery  as  to  the  sales  effected 
by  the  defendant  and  production  of  his  books 
for  that  purpose.  Fennessv  v.  Clark,  37  Ch.  D. 
184  ;  57  L.  J.,  Ch.  398  ;  58  L.  T.  289— C.  A. 

After  Judgment — Discretion.] — In  an  action 
for  breach  of  promise  judgment  for  the  plaintiff 
had  gone  by  default,  and  the  question  of  damages 
had  been  referred  to  the  master.  The  plaintiff 
claimed  the  right  to  inspect  and  take  copies  of 
her  letters  to  the  defendant  as  being  material  to 
the  question  of  damages  : — Held,  that  the  matter 
was  one  for  the  discretionary  jurisdiction  of  the 
court  or  judge,  and  not  of  right.  Ladds  v. 
Walthew,  32  W.  R.  1000— D. 


4.  PRIVILEGED   DOCUMENTS. 

Action  for  Recovery  of  Land— Title  Deeds- 
Purchaser  for  Value  without  Notice.]  —  An 
action  having  been  brought  in  the  Chancery 
Division  to  recover  possession  of  land  and 
claiming  production  and  delivery  of  documento 
alleged  to  be  material  to  the  plaintiff's  title,  the 
defendants  pleaded  that  they  were  purchasers 
for  valuable  consideration  without  notice,  and 
on  this  ground  objected  to  the  discovery  and 
production  of  certain  documents  of  title  : — 
Held,  that  the  objection  was  invalid  for  the 
following  reason : — Before  the  Judicature  Act, 
1873,  a  plea  of  purchase  for  valuable  consideia- 
tion  without  notice  was  not  available  against 
either  discovery  or  relief  claimed  in  those  case-* 
in  which  the  Court  of  Chancery  had  concurrent 
jurisdiction  with  the  Common  Law  Courts  upon 
legal  titles  ;  section  24,  sub-s.  2,  of  that  act 
therefore,  gives  no  protection  to  the  defendants, 
the  court  having  now  complete  jurisdiction  over 

Y  2 


647 


DISCOVERY— Documents. 


648 


the  whole  action.  Ind  v.  Emitter  ton,  12  App. 
Cas.  300  ;  56  L.  J.,  Ch.  989  ;  66  L.  T.  778  ;  36 
W.  B.  243— H.  L.  (E.). 

Public  Interest  —  Communications  between 
Secretary  of  State  and  Party.] — In  an  action 
for  libel  the  plaintiff,  in  his  affidavit  of  docu- 
ments, stated  that  he  had  in  his  custody,  in  his 
capacity  of  governor  of  a  colony,  copies  of  com- 
munications which  had  passed  either  between 
the  Secretary  of  State  for  the  Colonies  and 
himself  as  such  governor,  or  between  the  Royal 
Commissioner  appointed  to  enquire  into  the 
affairs  of  the  colony  and  himself  as  such  governor, 
or  between  the  Commissioner  and  the  Secretary 
of  State  ;  and  that  the  attention  of  the  Secretary 
of  State  had  been  directed  to  the  nature  and 
dates  of  the  documents,  and  that  he  had  directed 
the  plaintiff  not  to  produce  them,  and  to  object 
to  their  production,  on  the  ground  of  the  interest 
of  the  State  and  of  the  public  service,  and  that 
the  plaintiff,  therefore,  objected  to  produce  them 
on  those  grounds  : — Held,  on  motion  for  liberty 
to  inspect  the  documents,  that  the  motion  must 
be  refused.  Ilenneny  v.  Wright,  21  Q.  B.  D. 
609;  57  L.  J.,  Q.  B.  530;  59  L.  T.  323;  53 
J.  P.  62— D. 

Shorthand  Hotea  in  former  Proceedings.] — 
Transcript  of  shorthand  notes  of  proceedings  in 
open  court  are  not  privileged.  Nordon  v.  Defries 
(8  Q.  B.  D.  608)  observed  upon.  Worswick,  In 
re,  Robton  v.  Wortwick,  38  Ch.  D.  370 ;  58  L.  J., 
Ch.  31  ;  59  L.  T.  399  ;  36  W.  R.  625— North,  J. 

The  corporation  of  P.  took  compulsorily  some 
of  R.*s  land,  and  at  an  arbitration  to  ascertain 
the  sum  to  be  paid,  R.  claimed  a  right  of  way 
over  other  land  to  a  river,  and  such  alleged  right 
had  to  be  considered  in  regard  to  the  sum  to  be 
assessed.  R.  employed  a  shorthand  writer  to  take 
notes  of  the  evidence  and  arguments,  and  after- 
wards had  them  transcribed  for  his  own  purposes. 
Subsequently  he  brought  an  action  for  a  manda- 
tory injunction  to  compel  the  corporation  to 
remove  materials  which  they  had  put  on  the  land 
over  which  he  claimed  the  right  of  way.  The 
relevancy  of  the  notes  was  admitted.  On  motion 
by  the  corporation  for  the  production  of  the 
transcript,  R.  objected  on  the  ground  that  it  was 
privileged,  as  the  notes  were  taken  at  his  expense ; 
and  in  anticipation  of  other  proceedings  against 
the  corporation : — Held,  that  the  transcript  of 
the  notes  was  not  privileged,  and  that  it  must  be 

S reduced.     Bawttone  v.  Preston  Corporation, 
0  Ch.  D.  116  ;  54  L.  J.,  Ch.  1102  ;  62  L.  T.  922  ; 
33  W.  R.  795— Kay,  J. 

Copies  obtained  by  Solicitor— Deposition  before 
Receiver  of  Wrecks.]— In  a  collision  action,  the 
plaintiffs'  solicitors,  for  the  purpose  of  the  action , 
obtained  from  the  Board  of  Trade  copies  of  depo- 
sitions made  before  the  receiver  of  wrecks  by  the 
master  and  crew  of  the  plaintiffs'  ship  as  to  the 
circumstances  of  the  collision  : — Held,  that  the 
copies,  having  been  obtained  by  the  solicitors  for 
the  purposes  of  the  action,  were  privileged,  and 
that  the  court  would  not  inquire  for  what  pur- 
pose the  original  depositions  were  made.  The 
Palermo,  9  P.  D.  6  ;  53  L.  J.,  P.  6  ;  49  L.  T.  551  ; 
82  W.  R.  403  ;  6  Asp.  M.  C.  165— C.  A. 

Public  Records.  1— Although  prima  facie 

privilege  cannot  be  claimed  for  copies  of  or 


extracts  from  public  records  or  documents  which 
are  publici  juris,  a  collection  of  Bucb  copies  or 
extracts  will  be  privileged  when  it  has  been 
made  or  obtained  by  the  professional  advisers  of 
a  party  for  his  defence  to  the  action,  and  is  the 
result  of  the  professional  knowledge,  research 
and  skill  of  those  advisers.  Lyell  v.  Kennedy* 
27  Ch.  D.  1 ;  51  L.  J.,  Ch.  937  ;  50  L.  T.  730- 
C.  A. 

K.'s  solicitor  had,  for  the  purpose  of  K.'s 
defence  in  the  action,  procured  copies  of  and 
extracts  from  certain  entries  in  public  registers, 
and  also  photographs  of  certain  tombstones  and 
houses  to  be  taken,  for  which  K.  in  his  affidavit 
of  documents  claimed  protection  : — Held,  thtt 
although  mere  copies  of  unprivileged  document* 
were  themselves  unprivileged,  the  whole  collec- 
tion, being  the  result  of  the  professional  know- 
ledge, skill,  and  research  of  his  solicitors,  must 
be  privileged — any  disclosure  of  the  copies  and 
photographs  might  afford  a  clue  to  the  view 
entertained  by  the  solicitors  of  their  client'* 
case.    lb. 


Copies  of  Letters.] — A  correspondence 


had  taken  place  between  the  defendant  in  an 
action  and  persons  other  than  the  plaintiff  which 
was  material  to  the  questions  at  issue  in  the 
action.  The  defendant  had  not  preserved  the 
letters  received  by  him  or  copies  of  the  letters 
written  by  him  in  the  course  of  such  correspond- 
ence, but  after  action  brought  his  solicitor,  for 
the  purposes  of  the  defence  to  the  action,  pro- 
cured through  such  third  persons  copies  of  the 
letters  so  written  and  received : — Held,  that 
such  copies  were  not  privileged  against  inspec- 
tion by  the  plaintiff.  Chadwick  v.  Botoman\  16 
Q.  B.  D.  561  ;  54  L.  T.  16— D. 

Professional  Privilege  —  Previous  Action 
against  Third  Party.]—- An  order  having  been 
made  for  discovery  of  documents  by  the  plaintiff 
in  an  action,  the  plaintiff  stated  on  affidavit 
that,  among  other  documents  relating  to  the 
matters  in  question  in  the  action,  he  had  in  bis 
possession  certain  documents  partially  prepared 
by  his  solicitors  in  an  action  previously  brought 
by  him  against  one  D.  (a  person  other  than  the 
defendant)  for  future  use  in  carrying  on  the  said 
action,  but  which  were,  in  fact,  never  completed 
or  used  owing  to  such  action  not  proceeding  in 
consequence  of  D.'s  death,  and  that  the  whole  of 
the  said  documents  were  of  a  private  and  con- 
fidential nature  between  counsel,  solicitor,  and 
client: — Held,  that  the  documents  were  privi- 
leged from  discovery  in  the  action.  Bulloch  i. 
Corry  (3  Q.  B.  D.  356)  followed.  Pearee  v. 
Foster,  15  Q.  B.  D.  114  ;  54  L.  J.,  Q.  B.  432  ;  52 
L.  T.  886  ;  33  W.  R.  919  ;  50  J.  P.  4— C.  A. 

Bolioitor  and  Patent  Agent  —  Irrele- 
vancy.]— An  action  was  brought  by  the  registered 
owner  of  two  letters  patent  for 'similar  inven- 
tions, dated  in  1883  and  1884,  for  infringement 
of  both  patents.  The  plaintiff  discontinued  the 
action  so  far  as  related  to  the  patent  of  1884. 
The  defendants  then  delivered  interrogatories  as 
to  documents  in  his  possession  relating  to  the 
preparation  of  the  specifications  filed  under  both 
patents.  The  plaintiff  declined  to  answer  on  the 
ground  that  they  were  confidential  communica- 
tions between  himself  and  his  solicitor  and 
counsel,  and  that  such  documents  were  privi- 


649 


DISCOVERY— Documents. 


650 


leged;  and  that  as  regarded  any  documents 
relating  to  the  patent  of  1884,  the  interrogatories 
were  irrelevant  to   the   issue.    The   plaintiff's 
solicitor  had  also  acted  as  his  patent  agent : — 
Held,  that  the  plaintiffs  answer  as  to  documents 
wis  insufficient,  as  it  did  not  distinguish  between 
the  communications  between  him  and  his  solici- 
tor as  such,  and  communications  between  him 
and  his  solicitor  in  his  character  of  patent  agent ; 
ifae  former  class  only  being  privileged :    and 
heM  that  the  defendants  had  a  right  to  inspect 
communications  between  the  plaintiff  and  his 
patent  agent  which  related  to  the  preparation  of 
the  specification  of  the  patent  of  1884,  both  the 
inventions  patented  being  so  closely  connected 
that  evidence  material  to  the  issue  might  be  dis- 
closed by  such  inspection.    Moseley  v.  Victoria 
Bttoer  Company,  55  L.  T.  482— Chitty,  J. 

—  Anonymous  Letters  to  Solicitor,  Counsel 
sad  Party  to  Action.]— The  plaintiff  sued  to 
recall  probate  on  the  ground  that  the  testator 
▼as  pot  of  sound  mind,  and  that  the  will  was 
obtained  by  the  undue  influence  of  the  defendants. 
After  the  commencement  of  the  action  four  anony- 
mous letters  relating  to  the  matters  in  dispute 
were  received — two  by  the  plaintiff,  one  by  her 
solicitor,  and  another  by  her  counsel  in  the 
action :— Held,  that  the  letters  to  the  plaintiff 
most  be  produced,  but  that  the  letters  to  the 
solicitor  and  counsel  were  privileged,  for  they 
mart  be  taken  to  have  been  sent  to  them  for  the 
Purposes  of  the  action  and  by  reason  of  their 
being  the  plaintiff's  legal  advisers  in  the  action, 
snd  tiie  privilege  was  not  lost  because  they  were 
not  sent  in  consequence  of  any  request  by  the 
solicitor  and  counsel,  nor  obtained  by  their 
exertions.  Hollo  way,  In  re,  Young  v.  Hollo  way, 
12  P.  D.  167  ;  56  L.  J.,  P.  81  ;  57  L.  T.  515 ; 
35  W.  R.  751— C.  A. 

—  Solicitor  and  Client— Fraud— Trustee.] 
—An  action  was  brought  for  an  account  of  profits 
in  respect  of  a  purchase  of  trust  property,  on 
allegations  that  tne  sale  was  secretly  made  for 
the  benefit  of  R.,  one  of  the  trustees,  with  the 
connivance  of  T.,  another  trustee,  who  was  a 
solicitor.  The  representatives  of  R.  claimed 
Privilege  from  production  for  letters  from  T.  to 
B»  and  for  T.'s  bill  of  costs,  on  the  ground  that 
the  communications  were  made  by  T.  acting  as 
solicitor  to  R.  in  his  private  capacity.  Produc- 
tion was  ordered  because  the  communications 
P<*Kd  between  two  trustees,  and  because  the 
•obotor  and  his  client  were  charged  with  fraud. 
toUethvoaite,  In  re,  Postlethwaite  v.  Rick- 
■f»,  35  Ch.  D.  722  ;  56  L.  J.,  Ch.  1077  ;  56  L.  T. 
^33;  36  W.  R.  563— North,  J. 

Opinions  of  Counsel— Reports  of  Sub- 
taw.] — Upon  a  summons  by  the  defen- 
ds* that  the  plaintiffs — a  corporation — might 
k  ordered  to  produce  the  documents  comprised 
m  their  affidavit  of  documents :— Held,  that  the 
yjoas  of  counsel  with  reference  to  these  pro- 
cwdinga,  whether  taken  before  or  after  the 
«sMnencement  of  the  action,  were  privileged  ; 
«d  the  fact  that  the  defendant  was  a  ratepayer, 
**a  the  opinions  might  have  been  paid  for  out 
<rfthe  pariah  rates,  gave  the  defendant  no  special 
«aim  to  inspection  ;  and  also  that  minutes  of 
jj*  corporation  and  sub-conimittees  appointed 
by  them  to  report  concerning  matters  connected 


with  the  litigation  were  also  privileged.  Bristol 
(Mayor)  v.  Cox,  26  Ch.  D.  678  ;  53  L.  J.,  Ch. 
1144  ;  50  L.  T.  719  ;  33  W.  R.  255— Pearson,  J. 


Shareholder's  Action  against  Company.] 


— A  plaintiff  in  a  shareholder's  action  against  a 
company  is  entitled  to  discovery  of  professional 
communications  between  the  company  and  its 
legal  advisers  relating  to  the  subject  matter  of 
the  action,  when  such  communications  are  paid 
for  out  of  the  funds  of  the  company.  Oouraud 
v.  Edison  Qomer  Bell  Telephone  Company,  57 
L.  J.,  Ch.  498  ;  59  L.  T.  813— Chitty,  J. 


Reports   of    Servants   and    Agents  — 


Minutes  of  Proceedings.] — In  an  action  against 
a  railway  company  for  work  done  and  materials 
supplied  at  their  request,  the  defendant  company 
objected  to  produce  for  the  plaintiff's  inspection 
— (a)  their  engineer's  report  to  the  board  of 
directors  with  reference  to  the  subject  of  claim ; 
(b)  correspondence  between  the  defendant's 
servants  and  agents  with  reference  to  the 
defence  of  the  action ;  (c)  extracts  of  minutes 
of  private  proceedings  of  the  board  at  meetings 
with  reference  to  the  litigation,  then  contem- 
plated though  not  actually  commenced — claim- 
ing that  all  these  documents  were  privileged. 
It  was  not  alleged  in  the  affidavit  of  discovery 
that  the  engineer's  report  related  solely  to  the 
defendant's  case,  or  that  it  was  prepared  for  the 
purpose  of  being  laid  before  their  legal  advisers : 
— Held,  that  the  defendants  were  bound  to  pro- 
duce the  report  and  the  correspondence,  save 
correspondence  between  them  and  their  solici- 
tors, but  were  entitled  to  be  excused  from  pro- 
ducing the  minutes.  Worthington  v.  Dublin, 
Wicldow  and  Wexford  Railway,  22  L.  R.,  Ir. 
310— Ex.  D. 

Hot  destroyed  by  Inaccurate  Affidavit.  J — 
Plaintiff  made  an  affidavit  of  documents  claim- 
ing privilege  as  to  all  documents  in  the  schedule 
thereto,  on  the  ground  that  they  supported  the 
plaintiff's  title,  and  did  not  support  the  title  of 
the  defendant.  Defendant  took  out  a  summons 
for  production,  notwithstanding  the  privilege 
claimed  when  the  judge  in  chambers  ordered 
production  of  one  of  the  documents,  and  ad- 
journed the  hearing  of  the  rest  of  the  summons 
into  court.  On  hearing  the  adjourned  summons  : 
— Held,  that  the  inaccuracy  of  the  affidavit  as 
to  Tone  document  did  not  of  itself  destroy  the 
plaintiff's  privilege  as  to  the  rest  of  the  scheduled 
documents.  Leslie  v.  Care,  56  L.  T.  332 ;  35 
W.  R.  516— Kekewich,  J. 

Effect  of  Waiver.]— A  waiver  of  privilege  in 
respect  of  some  out  of  a  larger  number  of  docu- 
ments for  all  of  which  privilege  was  originally 
claimed  does  not  preclude  the  party  from  still 
asserting  his  claim  of  privilege  for  the  rest. 
Lyall  v.  Kennedy,  27  Ch.  D.  1 ;  51  L.  J.,  Ch.  397  ; 
50  L.  T.  730— C.  A. 

Lou    of— Reference   in   Pleadings.]  —  The 

privilege  claimed  for  documents  is  not  lost 
merely  by  their  being  referred  to  in  the 
pleadings.  The  penalty  for  non-production  is 
that  they  cannot  afterwards  be  used  in  evidence. 
Roberts  v.  Oppenhcim,  26  Ch.  D.  724 ;  53  L.  J., 
Ch.  1148  ;  50  L.  T.  729  ;  32  W.  R.  654— C.  A. 


651 


DISCOVERY— Documents. 


652 


5.  DOCUMENTS  HBLD  IN  RIGHT  OF 
ANOTHER. 

Liquidator  —  Booki  of  Company.] —  In  an 
action  on  a  promissory  note,  made  by  the  defen- 
dant as  to  security  for  the  repayment  of  moneys 
due  to  the  plaintiffs  from  a  limited  company, 
the  defendant  objected  to  produce  documents 
relating  to  the  matters  in  question  in  the  action, 
being  the  banker's  pass  book  and  directors' 
minute  book  of  the  company,  on  the  ground 
that  they  were  in  his  custody  only  as  liquidator 
in  the  voluntary  winding  up  of  the  company. 
The  company  had  been  dissolved  before  the 
application  for  the  discovery  of  documents  was 
made,  but  no  resolution  had  been  passed  under 
the  Companies  Act,  1862,  s.  155,  for  the  disposal 
of  the  documents  belonging  to  it : — Held,  that 
the  plaintiffs  were  entitled  to  the  inspection  of 
the  documents,  inasmuch  as  the  defendant  had 
them  in  his  absolute  control.  London  and  York- 
shire Bank  v.  Cooper,  15  Q.  B.  D.  473 — C.  A. 
Affirming  54  L.  J.,  Q.  B.  495  ;  33  W.  R.  750— D. 


6.  SEALING  UP  DOCUMENTS. 

Partnership  Books — Surviving  Partner.  ] — 
The  defendant  and  W.  P.  were  partners.  W.  P. 
died  and  appointed  the  defendant  his  executor. 
In  an  action  by  a  person  interested  under  W.P.'s 
will  against  the  defendant  a  decree  was  made  for 
administration  of  W.  P.'s  estate,  and  for  taking 
accounts  of  the  partnership  as  between  the 
defendant  as  surviving  partner  and  W.  P.'s 
estate.  An  order  having  been  made  for  the  pro- 
duction of  the  partnership  books  by  the  defen- 
dant, he  claimed  to  seal  up  such  entries  as 
related  to  his  own  private  affairs  : — Held,  that 
inasmuch  as  the  plaintiff  and  defendant  were 
both  interested  in  the  partnership  property,  the 
defendant  was  not  entitled  to  the  ordinary  power 
to  seal  up  such  entries  as  he  might  swear  to  be 
irrelevant  to  the  matters  at  issue  in  the  action, 
but  only  to  seal  up  entries  which  related  to 
certain  specified  private  matters  mentioned  in 
the  order.  Pickering,  In  re,  Pickering  v. 
Pickering,  25  Ch.  D.  247  ;  53  L.  J.,  Ch.  550  ;  50 
L.  T.  131 ;  32  W.  R.  511— C.  A. 

Form  of  Affidavit.] — In  an  affidavit  of  sealing 
up  irrelevant  matter,  it  is  not  necessary  for  the 
deponent  to  state  positively  that  no  sealed-up 
portion  relates  to  the  matters  in  question.  Per 
Fry,  LJ.  :  The  affidavit  ought  to  state  what 
has  been  done,  and  upon  whose  investigation  the 
deponent  is  relying,  and,  if  he  has  not  conducted 
the  investigation  himself,  he  ought  to  pledge  his 
oath  to  the  belief  that  nothing  sealed  up  is 
relevant  to  the  matter.  Jones  v.  Andrews,  58 
L.  T.  601— C.  A. 

Conclusiveness  of  Affidavit.]— The  mere  fact 
that  the  sealing  up,  or  affidavit  of  sealing  up, 
has  not  been  done  without  carelessness  is  not  a 
sufficient  ground  for  ordering  a  general  unseal- 
ing. In  such  cases,  as  in  ordinary  cases  of 
discovery  of  documents,  the  person  seeking 
discovery  is  bound  by  the  oath  of  the  party 
making  discovery,  unless  the  court  is  satisfied, 
not  on  a  conflict  of  evidence,  but  from  (1)  the 
documents  produced,  (2)  something  in  the 
affidavit  of  documents  or  sealing,  (3)  admission 


of  the  party  making  discovery,  or  (4)  necessarily 
from  the  circumstances  of  the  case,  that  the 
affidavit  as  to  documents  or  sealing  does  not 
truly  state  what  it  ought  to  state.    lb. 

Application  for  General  Unsealing.]— In  an 
action  by  a  principal  against  his  agents  the 
plaintiff  claimed  an  account  of  all  sums  received 
and  paid  by  the  defendants  as  his  agents.   The 
plaintiff  subsequently  obtained  an  order  for  an 
affidavit  of  documents.     The  defendants  then 
obtained  liberty  to  seal  up  such  portions  of  the 
documents  as  were  irrelevant,  and  they  sealed 
up  more  than  10,000  passages  contained  in  nearly 
5,000  books  and  documents.    The  plaintiff  then 
applied  for  an  order  on  the  defendants  to  unseal 
all  books  and  documents,  and  all  portions  there- 
of, which  had  been  sealed  up  under  the  order,  or 
such  portions  thereof  as  the  court  should  direct 
The  court  held  that  the  application  that  every- 
thing sealed  up  should  be  unsealed  could  not  be 
acceded  to,  and  that  it  was  necessary  ior  the 
plaintiff  to  establish  by  particular  instances  his 
right  to  compel  the  defendants  to  unseal    A  list 
of  particular  documents  was  then  prepared  and 
brought  before  the  judge,  who  directed  certain 
scheduled  items  to  be  unsealed,  but  refused  the 
rest  of  the  application  : — Held,  on  appeal,  that 
the  plaintiff  was  not  entitled  to  a  general  unseal- 
ing of  the  documents.    lb. 


7.   THE   AFFIDAVIT. 

Conclusiveness  of— Grounds  on  which  Inspec- 
tion ordered.] — Where  a  party  claims  privilege 
against  the  production  of  documents,  on  the 
ground  that  they  support  his  own  title  and  do 
not  relate  to  that  of  his  opponent,  his  affidavit 
must  be  taken  as  conclusive,  unless  the  court  can 
see  from  the  nature  of  the  case  or  of  the  docu 
ments  that  the  party  has  misunderstood  the  effect 
of  the  documents.  A  ttorney-  General  v.  Emerm 
(10  Q.  B.  D.  191),  distinguished.  Roberts  v. 
Opjjenheim,  ante,  coL  650. 

The  defendants  in  an  affidavit  of  documents, 
made  pursuant  to  Ord.  XX XL  r.  12,  disclosed  a 
copy  of  an  extract  from  a  letter  written  by  a 
person  not  a  party  to  the  action  to  one  of  the 
directors  of  the  defendant  company.  The  defen- 
dants refused  to  produce  the  same,  on  the  ground 
that  it  was  a  confidential  letter  from  a  person 
not  a  party  to  the  action,  and  on  a  summons  to 
inspect  being  taken  out,  filed  an  affidavit  to  the 
effect  that  the  document  related  only  to  their 
case  and  did  not  tend  in  any  way  to  support  the 
plaintiffs',  or  impeach  their  own  case: — Held, 
that  as  there  was  nothing  in  the  document  itself 
to  disclose  the  matter  of  its  contents,  the  affidavit 
of  the  defendants  was  conclusive,  and  inspection 
must  be  refused.  Attorney- General  v.  Bmens* 
(10  Q.  B.  D.  191),  distinguished.  B%lm*n  v. 
Young,  49  L.  T.  736  ;  31  W.  B.  766— D.  See 
also  Jones  y.  Andrews,  supra. 

Joint  or   Separate  Custody — Husband  aid 

Wife.] — A  husband  and  wife  sued  asco-plaintiffii 
in  respect  of  an  alleged  breach  of  trust  by  the 
trustees  of  their  marriage  settlement.  The  wife 
had  a  life  estate  for  her  separate  nee,  and  sued 
without  a  next  friend.  An  order  was  made  that 
the  plaintiffs  should  file  an  affidavit  stating 
"  whether  they  or  either  of  them  "  had  in  the 
possession  or  power  "  of  them  or  either  of  them," 


653 


DISCOVERY— Documents. 


654 


anj  documents  relating  to  the  matters  in  ques- 
tion.   They  filed  an  affidavit    admitting  the 
possession  of  various  documents,  which  thej 
scheduled,  and  going  on  to  say,  "  We  have  not 
now,  and  never  had  in  our  possession,  custody, 
or  power,  or  in  the  possession,  custody,  or  power 
of  any  other  person  or  persons  on  our  behalf, 
toy  deed,  tc.,  other  than  and  except  the  docu- 
ments set  forth  in  the  said  schedule  " : — Held, 
that  the  plaintiffs  must  be  ordered  to  file  a 
farther  and  better  affidavit,  for  that  an  affidavit 
relating  only  to  documents  in  the  joint  custody 
of  the  husband  and  wife  did  not  comply  with 
the  order,  and  that  the  order  was  right  in  requir- 
ing them  to  answer  as  to  documents  in  the  pos- 
session of  either  of  them.    Fendall  v.  0'  Connelly 
»  Ch.  D.  899 ;  54  L.  J.,  Ch.  756  ;  52  L.  T.  553  ; 
83  W.  R.  619— C.  A. 

Striking  oat  for  Prolixity.  J— Although  there 
is  no  rale  of  court  specially  giving  power  to  the 
court  to  take  pleadings  or  affidavits  off  the  file 
for  prolixity,  yet  the  court  has  an  inherent  power 
to  do  so  in  order  to  prevent  its  records  from  being 
made  the  instruments  of  oppression.  Where, 
however,  an  affidavit  of  documents  was  of  op- 
pressive length,  but  it  appeared  to  the  court 
that  delay  and  expense  would  be  caused  by  filing 
a  fresh  one,  the  court  permitted  it  to  remain  on 
the  file,  bat  ordered  the  party  filing  it  to  pay 
the  costs  of  it.  Hill  v.  Hart-Davis,  26  Ch.  D. 
470;  53  L.  J.f  Ch.  1012  ;  51  L.  T.  279— C.  A. 

Document  found  titer  Affidavit  filed.]— It  is 
the  duty  of  a  party  in  an  action  who,  after  filing 
an  affidavit  of  documents,  discovers  a  document 
of  which  his  opponent  has  a  right  to  have  in- 
spection, but  which  is  not  disclosed  in  the 
•ehednle,  to  inform  his  opponent  of  the  dis- 
covery, either  by  supplementary  affidavit  or  by 
notice.  Mitchell  v.  Barley  Main  Colliery  Com- 
J«*JS  1  C.  k  B.  21&— Hawkins,  J. 

lon-eomnlinneo  with  Order— Incapacity  aria, 
iag  after  Writ— Leave  to  add  next  Friend.]— 
Where,  after  writ  issued,  the  plaintiff  became 
incapable  of  transacting  business,  and  his 
brother,  on  his  behalf,  made  an  affidavit  of 
documents,  and  answered  interrogatories,  the 
defendant  took  oat  a  summons  to  dismiss  the 
action  for  non-compliance  with  orders  to  make 
an  affidavit  of  documents,  and  to  answer  inter- 
rogatories; the  plaintiff  then  took  out  a  sum- 
mons for  leave  to  amend  by  adding  a  next 
friend:— Held,  that  the  defendant  was  not 
entitled,  under  rule  21  of  Ord.  XXXI.  of  the 
Bales  of  Court,  1883,  to  have  the  action  die- 
Bussed.  The  action  still  subsisted,  and  the 
plaintiff  must  have  leave  to  amend  by  adding 
*  next  friend ;  the  plaintiff  to  pay  the  costs  of 
hoth  summonses.  CardweU  (Lord)  v.  Tomlin- 
*>«,  54  L.  J.,  Ch.  957  ;  32  L.  T.  746  ;  33  W.  R. 
SH-V.-C.  B. 

- —  Compliance  with  Order  after  issue  of 
writ  of  Attachment,  but  before  Enforcement.  J — 
A  writ  of  attachment  was  issued  against  the 
defendant  in  an  action  for  his  contempt  in  not 
complying  with  an  order  of  the  court  to  make 
and  file  an  affidavit  of  documents  relating  to 
the  matters  in  question  in  the  action.  After 
the  issue  of  the  writ  of  attachment,  but  before 
it  was  enforced,  the  order  was  duly  complied 
*ith  by  the  defendant,  and  immediate  notice  of 


such  compliance  was  given  to  the  plaintiffs' 
solicitors.  The  defendant  was  nevertheless  ar- 
rested and  imprisoned : — Held,  that  the  arrest 
was  altogether  irregular;  and  that  it  was  the 
duty  of  the  plaintiffs'  solicitors  to  have  stayed 
the  enforcement  of  the  writ  of  attachment. 
Guy  v.  Hancock,  56  L.  T.  726— Kay,  J. 

Proceedings  on  Attachment.]  —  See  At- 
tachment (Pkbsons). 

8.  THE   DEPOSIT. 

Dispensing  with— Discretion  of  Judge.]— A 
judge  has  no  discretion  to  dispense  with  the 
deposit  required  by  Ord.  XXXI.  r.  26,  before 
application  for  discovery  or  delivery  of  inter- 
rogatories. Boarder  v.  Lindsay,  34  W.  R.  478 
— D. 

A  party  to  a  cause  is  not  entitled  to  obtain  as 
a  matter  of  right  an  order  to  administer  interro- 
gatories without  making  a  deposit  under  Rules  of 
the  Supreme  Court,  Order  XXXI.  rr.  25,  26, 
merely  because  the  other  party  consents  to  it. 
The  judge  at  chambers  has  upon  an  application 
of  that  kind  a  discretion,  and  in  the  exercise  of 
that  discretion  may  order  the  deposit  to  be  made, 
notwithstanding  that  the  party  to  be  interrogated 
is  ready  to  dispense  with  a  deposit.  Aste  v. 
Stnmore,  13  Q.  B.  D.  326  ;  53  L.  J.,  Q.  B.  82  ; 
49  L.  T.  742  ;  32  W.  R.  219  ;  5  Asp.  M.  C.  176 
— C.  A. 

In  an  action  where  the  defendants  were  charged 
with  fraud,  which  the  court  considered  to  require 
strict  investigation,  and  where  the  security  for 
costs  under  Order  XXXI.  r.  26,  on  delivering 
interrogatories,  would  have  amounted  to  between 
45/.  and  60/. ;  the  court,  on  proof  of  the  plain- 
tiff's want  of  means,  dispensed:  with  the  security. 
Smith,  In  re,  Smith  v.  Went,  50  L.  T.  382  ;  32 
W.  R.  512— Kay,  J. 

Doonments  in  which   Parties   have  a 


Common  Interest.] — Order  made  that  the  plain- 
tiff in  an  action  of  contract  should  have  inspec- 
tion of  the  written  contract  which  was  in  the 
defendant's  possession  without  giving  the  security 
for  costs  required  by  Ord.  XXXI.  rr.  25, 26.  The 
provisions  of  Ord.  XXXI.  rr.  25,  26,  with  regard 
to  security  for  the  costs  of  discovery  do  not 
apply  to  an  application  for  production  of  a  docu- 
ment in  which  both  parties  to  the  action  have  a 
common  interest.  Broton  v.  Liell,  16  Q.  B.  D. 
229  ;  55  L.  J.,  Q.  B.  73— D. 


Several  Defendants.] — Where  in  a  co- 


ownership  action,  brought  by  a  managing 
owner  against  his  co-owners  for  an  account  to 
recover  a  balance,  the  plaintiff  sought  to  inter- 
rogate the  defendants  who  were  numerous,  and 
to  be  dispensed  from  making  the  usual  deposit, 
the  defendants  contending  that  a  deposit  ought 
to  be  made  in  respect  of  each  defendant  interro- 
gated, the  court  ordered  a  deposit  of  5/.,  and 
10*.  for  each  additional  folio  over  five  and  no 
more.  The  Whiohham,  53  L.  T.  236 ;  5  Asp. 
M.  C.  479— Butt,  J. 

9.  COSTS  OF  INSPECTION. 

Hot  between  Party  and  Party.]— As  between 
party  and  party,  no  costs  can  be  allowed  in 
respect  of  notices  to  inspect  documents,  or  of 


655 


DISCOVEKY— Interrogatories. 


656 


attendance  for  the  purpose  of  inspecting  docu- 
ments, at  the  office  of  the  solicitor  to  whose 
client  the  documents  belong.  The  discretion 
given  to  the  taxing-master  by  Ord.  LXV.  r.  27 
(17) — repeated  from  Rules  of  Supreme  Court, 
1875  (Costs),  schedule,  r.  15— only  applies  to 
taxation  of  costs  as  between  solicitor  and  client. 
Wicksteed  v.  Biggs,  54  L.  J.,  Ch.  967  ;  62  L.  T. 
428— Pearson,  J. 


II.   IHTEBB0GAT0RIE8. 
1.    TO  AND  BY  WHAT  PERSONS. 

"  Opposite  Parties  "—Third  Party  to  Flain- 

tUt] — Persons  who  are  served  by  a  defendant 
with  a  third  party  notice  are  not  thereby  made 
defendants  within  the  definition  of  the  word  in 
the  Judicature  Act,  1873,  s.  100,  nor  do  they 
become  defendants  by  putting  in  a  defence. 
But  where  persons  had  been  served  with  a  third 
party  notice  by  the  defendant  for  the  purpose  of 
claiming  an  indemnity,  and  had  obtained  an 
order  (1)  that  the  question  of  indemnity  should 
be  tried  after  the  trial  of  the  action  ;  and  (2) 
that  they  should  be  at  liberty  to  appear  at  the 
trial  of  the  action  and  oppose  the  plaintiffs 
claim  so  far  as  they  were  affected  thereby,  and 
for  that  purpose  to  put  in  evidence  and  cross- 
examine  witnesses  :— Held,  that  the  third  parties 
had  been  placed  by  the  order  in  the  position  of 
defendants,  and  had  a  right  to  examine  the 
plaintiff  by  interrogatories  under  Order  XXXI. 
r.  1.  Eden  v.  Weardale  Iron  and  Coal  Com- 
pany, 36  Ch.  D.  287  ;  56  L.  J.,  Ch.  400  ;  56  L.  T. 
464  ;  36  W.  R.  507— C.  A. 

By  Plaintiff  to  Third  Party.]— Persons 

who  had  been  served  by  a  defendant  with  a 
third  party  notice  for  the  purpose  of  claiming 
indemnity,  obtained  an  order  (1)  that  the  ques- 
tion of  indemnity  should  be  tried  after  the  trial 
of  the  action ;  and  (2),  that  they  should  be  at 
liberty  to  appear  at  the  trial  of  the  action,  and 
oppose  the  plaintiff's  claim  so  far  as  they  were 
affected  thereby,  and  for  that  purpose  to  put  in 
evidence  and  cross-examine  witnesses  : — Held, 
that  the  third  parties  had  put  themselves  in  the 
position  of  "  opposite  parties "  to  the  plaintiff ; 
and  the  plaintiff  had  a  right  to  examine  them 
by  interrogatories.  MacAUister  v.  Bishop  of 
Rochester  (5  C.  P.  D.  194)  followed.  Eden  v. 
Weardale  Iron  and  Coal  Company,  34  Ch.  D. 
223  ;  66  L.  J.,  Ch.  178  ;  55  L.  T.  860  ;  35  W.  R. 
236-C.  A. 

Between  Plaintiff!  and  co-Plaintiffs  and 

Defendants  and  co-Defendants.] — Discovery  by 
way  of  interrogatories  may  be  allowed  to  a 
plaintiff  from  a  co-plaintiff,  or  to  a  defendant 
from  a  co-defendant,  in  cases  in  which  there 
may  be  rights  to  be  adjusted  between  them 
respectively.  Shaw  v.  Smith,  18  Q.  B.  D.  193  ; 
56  L.  J.,  Q.  B.  174  ;  66  L.  T.  40 ;  35  W.  R.  188 
— C.  A. 

Discovery  cannot  be  allowed  to  a  defendant 
from  a  co-defendant  with  a  view  to  show  that 
the  co-defendant  and  not  the  defendant  is  liable 
to  the  plaintiff,  as  where  a  defendant,  sued  for 
subsidence  under  the  plaintiff's  land,  proposes  to 
inspect  the  mines  of  a  co-defendant  in  adjoining 
land.  Brown  v.  Watkins  (16  Q.  B.  D.  125)  ex- 
plained,   lb. 


2.    IN  WHAT  MATTERS. 


Suit  for  Uullity  of  Marriage.] — In  a  suit  for 
nullity  of  marriage,  the  court  has  power  to  give 
leave  to  administer  interrogatories  between  the 
parties  to  the  suit ;  for  suits  of  that  kind  were 
formerly  within  the  jurisdiction  of  the  Ecclesi- 
astical Courts,  which  had  power  to  allow  interro- 
gatories to  be  administered  between  the  parties, 
and  now  all  the  jurisdiction  of  the  Ecclesiastical 
Courts  as  to  suits  for  nullity  of  marriage  (includ- 
ing matters  of  practice  and  procedure)  is  vested 
in  the  Probate,  Divorce,  and  Admiralty  Division. 
And,  further,  even  if  the  power  to  allow  interro- 
gatories to  be  administered  between  the  parties 
did  not  otherwise  exist,  it  would  be  conferred 
upon  the  Probate,  Divorce,  and  Admiralty  Divi- 
sion by  the  Supreme  Court  of  Judicature  Act, 
1873  ;  for  at  the  time  of  passing  that  statute  the 
Superior  Courts  of  Common  Law  and  the  Court 
of  Chancery  had  power  to  allow  interrogatories 
to  be  administered  between  the  parties  to  a  suit ; 
and  by  s.  16,  all  the  jurisdiction  of  those  courts, 
including  the  ministerial  powers  and  authorities 
incident  thereto,  was  transferred  to  and  vested 
in  the  High  Court  of  Justice,  and  by  s.  23  the 
jurisdiction  transferred  to  the  High  Court  may 
(so  far  as  regards  procedure  and  practice)  be 
exercised  in  the  same  manner  as  it  might  have 
been  exercised  by  any  of  the  courts  whose  juris- 
diction has  been  transferred.  Harvey  v.  Lett- 
kin,  10  P.  D.  122  ;  54  L.  J.,  P.  1  ;  33  W.  R.  188 
— C.  A. 

In  a  suit  for  nullity  of  marriage  the  court  has 
power  to  order  interrogatories.  Button  \.  Smith, 
9  P.  D.  57  ;  32  W.  R.  596— Hannen,  P. 

Potttion  for  Revocation  of  Patent.] — A  peti- 
tion was  presented  under  s.  26  of  the  Patents, 
Designs,  and  Trade  Marks  Act,  1883,  to  procure 
the  revocation  of  a  patent,  on  certain  grounds, 
which  were  stated  in  the  particulars  of  objec- 
tions. A  summons  was  subsequently  taken  ont, 
in  pursuance  of  leave  specially  reserved,  for 
directions  as  to  the  further  conduct  of  the  peti- 
tion, asking  that  the  petitioners  might  be  at 
liberty  to  deliver  to  the  respondent  interroga- 
tories, or,  in  the  alternative,  that  the  respondent 
might  be  ordered  to  furnish  particulars  of  his 
answer  to  the  petition.  Tne  question  was 
whether  the  practice  as  to  delivering  interroga- 
tories applied  to  a  petition  of  this  kind  : — Held, 
that  interrogatories  might  be  delivered  upon  the 
usual  terms  of  making  a  deposit.  Haddan't 
Patent,  In  re,  54  L.  J.,  Ch.  126 ;  61  L.  T.  190 : 
33  W.  R.  96— Kay,  J. 

Action  for  Penalties — Common  Informer.]— 

The  general  rule  is  that  in  an  action  for  penal- 
ties by  a  common  informer,  leave  will  not  be 
given  to  the  plaintiff  to  administer  interroga- 
tories. Martin  v.  Treacher,  16  Q.  B.  D.  607 ; 
55  L.  J.,  Q.  B.  209  ;  54  L.  T.  7  ;  34  W.  R.  315 ; 
50  J.  P.  356— C.  A.     See  also  ante,  coL  645. 


What  is— Breach  of  Copyright.] — By  3 


&  4  Wm.  4,  c.  15,  s.  2,  if  any  person  shall,  during 
the  continuance  of  the  sole  liberty  of  represent- 
ing a  dramatic  piece,  represent  such  piece  with- 
out the  consent  of  the  author,  every  such  offender 
shall  be  liable  for  each  and  every  such  represen- 
tation to  the  payment  of  an  amount  not  less  than 
40s. : — Held,  that  this  section  did  not  impose  a 


657 


,  DISCOVERY— Interrogatories. 


658 


penalty  upon  the  offender  so  as  to  preclude  the 
plaintiff,  in  an  action  to  recover  the  specified 
amount,  from  administering  interrogatories  to 
him.  Adam*  y.  Batley,  18  Q.  B.  D.  625 ;  56 
L.  J.,  Q.  B.  393  ;  56  L.  T.  770 ;  35  W.  R.  437— 
C.A 

As  to  Documents.]— See  Hall  v.  'Truman  and 
yiek*U  v.  Wheeler,  post,  col.  662. 


3.    APPLICATION   FOR  ORDEfe^-TIME. 

Summons —  Striking  out  for  Irrelevancy  — 
timudf  for  Application.]— On  the  hearing  of  a 
summons  before  the  chief  clerk  for  leave  to  de- 
lifer  interrogatories  under  Rules  of  the  Supreme 
Court,  1833,  Order  XXXI.,  r.  1,  he  may  consider 
toe  general  relevancy  or  irrelevancy  of  the  pro- 
posed interrogatories,  and  may,  if  a  copy  of  the 
interrogatories  is  produced  to  him  on  the  sum- 
mons, strike  out  such  as  are  irrelevant :  but  he 
is  not  at  liberty  to  settle  or  amend,  in  the  way 
of  condensation,  the  form  of  any  particular 
interrogatory  that  is  in  itself  relevant.  Swabey 
t.  Dotey,  32  Ch.  D.  352 ;  55  L.  J.,  Ch.  631  ;  54 
L.  T.  368 ;  34  W.  R.  510— V.-C.  B. 

Upon  an  application  for  leave  to  exhibit  in- 
terrogatories under  Rules  of  Supreme  Court 
1883,  Ord.  XXXI.,  r.  1,  it  is  not  necessary  for 
the  applicant,  nor  can  he  be  required,  to  produce 
a  copy  of  the  proposed  interrogatories ;  and  if 
produced  to  the  chief  clerk  on  the  hearing  of 
the  summons  he  has  no  right  to  settle  them,  or 
to  decide  upon  the  relevancy  or  irrelevancy  of 
specific  interrogatories  and  allow  or  disallow 
them  accordingly.  All  that  is  necessary  to  sup- 
port the  summons  is  a  statement  by  the  appli- 
cant— not  necessarily  in  writing — as  to  the 
general  nature  and  scope  of  the  proposed  in- 
terrogatories, so  as  to  enable  the  Court  to  decide 
whether  he  is  entitled  to  the  whole  or  any  part 
of  what  he  asks.  Martin  v.  Spicer,  32  Ch.  1). 
*92 ;  54  L.  T.  598  ;  34  W.  R.  689— V.-C.  B. 

Leavt  given  though  Tendency  to  Criminate.] 
— I*ave  to  administer  interrogatories  ought  not 
to  be  refused  on  the  ground  that  it  is  plain  from 
the  nature  of  the  case  that  they  must  necessarily 
criminate  the  party  interrogated,  who  cannot 
answer  them  without  admitting  that  he  has  been 
guilty  of  felony.    Ilarxey  v.  Lovehin,  supra. 

By  Defendant  before  Delivery  of  Particulars 
•7  Haiatlir.]— In  an  action  by  the  executors  of 
a  married  woman  against  her  husband  to  recover 
fapitare  said  to  be  part  of  her  separate  estate, 
delivery  by  the  plaintiffs  of  particulars  of  and 
relating  to  the  exact  chattels  claimed,  was  post- 
poned until  the  defendant  had  stated  on  oath 
which  of  the  articles  had  belonged  to  his  late 
wife,  on  the  ground  that  the  defendant  must 
know  what  furniture  his  wife  had,  whereas  the 
plaintiffs,  as  mere  executors,  had  not  the  means 
<<  knowing.  Millar  v.  Harper,  38  Ch.  D.  110  ; 
»  L  J.,  Ch.  1091  ;  58  L.  T.  698  ;  86  W.  R.  454— 
C.  A 

General  Allegation  of  Fraud— Principal  and 
Ageit— lo  particulars.]— The  plaintiff  alleged 
tfcat  he  had  employed  the  defendant  as  a  stock- 
*jAer,  but  that  the  defendant  had  in  many  of 
toe  transactions  dealt  with  himself  as  principal, 
*fid  bad  also  charged  the  plaintiff  with  moneys 


not  paid.  The  plaintiff  delivered  interroga- 
tories asking  for  the  particulars  of  the  dealings 
on  behalf  of  the  plaintiff  and  the  names  of  the 
persons  with  whom  the  defendant  had  dealt  and 
the  amounts  paid.  The  defendant  refused  to 
answer  on  the  ground  that  the  plaintiff  was  not 
entitled  to  this  information  until  after  decree  : — 
Held  (dubitante  Fry,  L.J.),  that  though  there 
were  no  particulars  of  the  frauds  alleged,  the 
plaintiff  was  entitled  to  discovery  in  order  to 
enable  him  to  give  details  of  the  frauds  alleged. 
Whyte  v.  Ahren*  (26  Ch.  D.  717)  discussed. 
Per  Bowen  L.J.,  Ord.  XIX.,  r.  6,  is  a  rule  of 
pleading  only.  Lcitch  v.  Abbott,  31  Ch.  D.  374  ; 
55  L.  J.,  Ch.  460  ;  54  L.  T.  258  ;  34  W.  R.  506  ; 
50  J.  P.  441— C.  A. 


4.  WHAT  ADMISSIBLE. 

"  Matter  in  question  in  the  Cause  " — Order 
XXXI.,  r.  1.] — The   plaintiff,  as   executrix  of 
A.   M.,  sued  the  executor  of  H.  M.,  alleging 
that   H.  M.  had  received  6,0002.  in  trust  for 
A.  M.,  had  invested  it  in  securities  producing  at 
least  five  per  cent,  per  annum,  and  applied  the 
interest    to   his    own    purposes.    The    plaintiff 
claimed  payment  of  the  6,000/.  with  interest  at 
five  per  cent.    The  defendant  professed   igno- 
rance as  to  the  matters  alleged,  and  set  up  several 
I  alternative    defences:    that    H.    M.    had    not 
received  the  6,0002. ;  that  if  he  had,  he  paid  it 
to  A.  M. ;  that  if  he  received  it  A.  M.  agreed 
that  he  should  retain  it  for  his  own  use  as  a  gift 
from  her  ;  that  if  he  received  it,  it  was  agreed 
between  him  and  A.  M.  that  he  should  retain  it 
in  satisfaction  of  a  claim  which  he  had  against 
her ;  that  A.  M.  was  at  her  death  indebted  to 
H.  M.  in  an  amount  exceeding  the  6,0002.    The 
plaintiff  delivered  interrogatories  for  the  exami- 
nation of  the  defendant.    By  interrogatory  18 
he  asked  particulars  as  to  the  way  in  which  the 
6,0002.  had  been  invested  by  H.  M.,  and  what 
was  the  rate  of  interest  on  tie  investments,  and 
how  the  income  had  been  disposed  of?      By 
interrogatory  23  he  asked  whether  the  defendant 
was  not  the  brother  of   H.   M.,  and  whether 
during  the  period  of  the  transactions  referred  to 
in  the  statement  of  claim  the  defendant  had  not 
been  the  solicitor  and  agent  of  H.  M.,  and  lived 
with  him,  and  acted  as  his  confidential  agent 
with  respect  to  his  property,  and  become  ac- 
quainted with  all  his  affairs  1    The  defendant, 
in  answer  to  interrogatory  18,  stated  that  H.  M. 
had  invested  the  6,0002.,  and  applied  the  income 
to  his  own  purposes,  and  declined  to  answer 
further,    and    he    declined    to    answer    inter- 
rogatory 23  at  all : — Held,  that  as  the  plaintiff 
was  not  seeking  to  follow  the  investments  of  the 
6,000/.,  the  defendant  was  not  bound  to  give  the 
particulars  of  such  investments ;  but  that  as  the 
defendant  did  not  admit  the  receipt  of    five 
per  cent,  interest,  he  was  bound  to  answer  as  to 
the  amount  of  interest  that  had  been  received,  as 
it  would  enable  the  court  at  the  hearing  to  make 
an  immediate  decree  for  payment  of  principal 
and  interest  if  the  plaintiff  established  the  trust. 
Parker  v.  Wells  (18  Ch.  D.  477)  distinguished. 
Held,  further  (dissentiente  Cotton,  L.J.),  that 
the  defendant  was  not  bound  to  answer  inter- 
rogatory 23,  for  that  an  interrogatory  asking  in 
substance  whether  the  defendant  had  not  been 
in  such  a  position  that  he  must  know  whether 
the  allegations  in  the  statement  of  claim  were 


659 


DISCOVERY— Interrogatories. 


660 


true  or  false,  did  not  relate  to  any  matter  in 
question  in  the  cause  within  the  meaning  of 
Ord.  XXXI.,  r.  1.  Morgan,  In  re,  Otoe?i  v. 
Morgan,  39  Ch.  D.  316  ;  60  L.  T.  71  ;  37  W.  R. 
243— C.  A. 

As  to  Damages.] — Interrogatories  as  to  the 
amount  of  the  damages  claimed  are  only  ad- 
missible, as  a  rule,  where  the  defendant  does 
not  directly  traverse  the  plaintiff's  claim,  but 
has  either  paid  money  into  court  or  can  show 
that  such  claims  are  prima  facie  extortionate. 
Clarke  v.  Bennett,  82  W.  R.  650— D. 

Action  to  recall  Probata  —  Undue  Influ- 
ence.]— The  plaintiff  sued  to  recall  probate  on 
the  ground  that  the  testator  was  not  of  sound 
mind,  and  that  the  will  was  obtained  by  the 
undue  influence  of  the  defendants,  two  of  whom 
were  the  executors,  and  the  third  universal 
legatee.  The  plaintiff  delivered  interrogatories 
for  the  examination  of  the  defendants,  asking 
what  sums  they  had  received  from  the  testator 
by  way  of  payment  for  services,  loan  or  gift, 
and  whether  the  universal  legatee  had  since  the 
death  of  testator  made  over  any  and  what  part 
of  the  property  to  the  other  defendants.  The 
defendants  declined  to  answer  these  inter- 
rogatories as  irrelevant : — Held,  that  the  inter- 
rogatories must  be  answered,  the  period  in  the 
first  interrogatory  being  limited  to  three  years. 
Holloway,  In  re,  Ytmng  v.  Holloway,  12  P.  D. 
167  ;  56  L.  J.,  P.  81  ;  57  L.  T.  515— C.  A. 

Defence  of  plene  administravit.]  —  In  an 
action  against  a  surviving  trustee  and  the 
executors  of  a  deceased  trustee  for  alleged 
breaches  of  trust,  the  executors  pleaded  plene 
administravit,  and  the  plaintiffs  having  there- 
upon administered  interrogatories,  seeking  for 
particulars  of  their  testator's  real  and  personal 
estate,  and  their  administration  of  it,  the 
executors'  answer  was  merely  a  repetition  of 
their  defence  : — Held,  insufficient,  and  that  the 
plaintiffs  were  entitled  to  a  further  and  more 
specific  answer.  St.  George  v.  St.  George,  19 
L.  R.,  It.  225— M.  R. 

Questions  aa  to  Defendant1!  Title.]  —The 
plaintiffs  brought  an  action  for  an  account  of 
coal  worked  by  the  defendants  under  certain 
closes  of  land,  and  an  injunction  to  restrain  any 
further  working,  and  by  their  statement  of 
claim  alleged  that  they  were  entitled  to  the 
minerals  under  the  said  closes  of  land.  The 
defendants  denied  the  title  of  the  plaintiffs,  but 
did  not  set  up  any  title  in  themselves.  The 
plaintiffs  administered  interrogatories  to  one  of 
the  defendant  firm,  one  of  which  required  him 
to  set  forth  "  under  or  by  what,  if  any,  convey- 
ance, assignment,  lease,  licence,  or  authority, 
the  defendant  firm  claim  to  be  entitled  to  the 
coals  and  minerals  underlying  the  closes  in 
question,  giving  the  dates  and  names  or  parties 
to  any  such  conveyance,  assignment,  or  lease, 
and  the  names  of  the  person  or  respective 
persons  from  whom  they  allege  that  they  obtained 
any  such  licence  or  authority,  and  giving  the 
date  of  any  such  licence  or  authority,  and 
stating  whether  the  same  be  in  writing  or  not." 
The  defendant  objected  to  answer  such  inter- 
rogatory, whereupon  the  plaintiffs  applied  for 
and  obtained  an  order  for  a  further  answer,  but 
the  order  did  not  direct  to  what  extent  the 


answer  should  go: — Held,  on  motion  to  dis- 
charge the  order,  that  the  order  was  right. 
Cayley  v.  Sandy  croft  Brick,  Tile,  and  Colliery 
Company,  33  W.  R.  577— Pearson,  J. 

Commonable  Rights— Discovery  of  Plaintiff's 
Evidence.] — B.  and  N.,  two  landowners  in  the 
parish  of  M.,  brought  an  action  for  a  declaration 
that  a  piece  of  land  formed  part  of  M.  Common, 
and  to  establish  commonable  rights  thereo?er. 
N.  sued  as  owner  in  fee  of  a  beerhouse  and  three 
cottages,  and  the  plaintiffs  pleaded  the  exercise 
of  the  rights  claimed  from  time  immemorial. 
The  defendant  was   the   lord  of   an  adjacent 
manor,  and  his  defence  was  that  the  piece  of 
land  never  formed  part  of  M.  Common,  but  was 
common  land  forming  part  of  his  own  manor ; 
that  if  the  plaintiffs  ever  had  any  rights  of 
common  thereon  such   right  had  been  extin- 
guished ;  that  some  of  the  rights  could  only  be 
used  in  respect  of  ancient  tenements,  and  that 
the  beerhouse  and  three  cottages  in  respect  of 
which  N.  sued  had  no  land  held  therewith.  After 
the  defence  had  been  delivered,  the  defendant 
administered    interrogatories    to  the  plaintiffs, 
asking  in  effect — (1.)  How  long  the  plaintiffs  had 
been  owners  or  proprietors  of  their  properties,  and 
for  what  estates,  what  was  the  tenure  thereof, 
and  whether  those  lands  were  within  the  limits 
of  any  and  what  actual  or  reputed  manors,  and 
whether  any  such  premises  were  ancient  mes- 
suages, and  whether  the  beerhouse  and  three 
cottages  had  any  and  what  lands  appurtenant 
thereto  or  held  therewith.    (2.)   Whether  the 
plaintiffs  or  their  predecessors  in  title,  as  pro- 
prietors or  occupiers  of  any  lands  in  M.,  or  under 
any  other  alleged  title,  had  exercised  the  rights 
claimed  upon  any  and  what  part  of  M.  Com- 
mon, or  upon  any  and  what  part  of  the  piece 
of  land  in  question.     (3.)  The  plaintiffs  were 
asked  to  set  forth  particulars  of  their  exercise 
of  such  rights,  and  whether  they  did  so  by  any 
licence  or  in  consideration  of  any  and  what  pay- 
ment.   The  plaintiffs  objected  to  answer  these 
interrogatories  on  the  ground  that  they  related 
exclusively  to  their  own  title  and  to  the  evidence 
thev  should  adduce  at  the  hearing.    Upon  a  sum- 
mons that  the  plaintiffs  might  be  ordered  to 
make    a   sufficient   answer : — Held,   that   the 
plaintiff  N.  must  answer  so  much  of  the  first 
interrogatory   as    asked,    whether    the    beer- 
house and  cottages  had  any  lands  appurtenant 
thereto  or  held  therewith,  because  he  had  not 
pleaded  that  they  had,  and  the  defendant  had 
pleaded  that  they  had  not ;  but  that  the  rest  of 
the  interrogatories  need  not  be  answered,  be- 
cause they  were  in  effect  directed  to  the  dis- 
covery of  the  evidence  by  which  the  plaintiffs 
intended  to    prove  their  case  at  the  hearing. 
Eade  v.  Jacobs  (3  Ex.  D.  334)  and  Hof****  ▼• 
Pottill  (4  L.  R.,  Ch.  673)  explained,    lowndet 
v.  Davie*  (6  Sim.  468)  dissented  from.    Bidder 
v.  Bridges,  51  L.   T.    818  ;   33  W.    R   272- 
Kay,  J. 

On  appeal  by  the  defendant  the  question  yru 
left  to  the  judges  of  the  Court  of  Appeal  as  ar- 
bitrators to  settle  what  part  of  the  interroga- 
tories should  be  answered,  and  the  plaintufe 
were  directed  to  answer  further  parts  of  them. 
S.  C,  29  Ch.  D.  29  ;  54  L.  J.,  Ch.  798  ;  52  L.  T. 
455  ;  33  W.  R.  792— C.  A. 

Libel— Comparison    of   Hand- writing.]  —  » 

order   to  prove  that  the  defendant  was  the 


661 


DISCOVERY— Interrogatories. 


662 


writer  of  a  libellous  letter,  he  may  be  in- 
terrogated as  to  whether  or  not  he  was  the 
writer  of  another  letter  addressed  to  a  third 
pawn,— as  leading  up  to  a  matter  in  issue  in 
the  cause,  and  therefore  relevant.  Jones  v. 
RieUrds,  15  Q.  B.  D.  439— D. 

—  lews  paper— Varna  of  Correspondent — 

luissript] — In  an  action  against  the  pub- 
lisher of  a  newspaper  for  a  libel  contained  in  a 
letter  from  a  correspondent  and  in  a  leading 
irticle  thereon,  the  defence  was  that  the  al- 
leged libel  consisted  of  an  accurate  report  of 
certain  public  proceedings  and  fair  comment 
thereon :—  Held,  that  the  plaintiff  was  not  en- 
titled to  interrogate  the  defendant  as  to  the 
names  of  the  persons  on  whose  information  the 
reports  were  based,  or  the  name  of  the  corre- 
ppondent  who  wrote  the  letter,  or  as  to  the 
original  manuscript  of  the  letter.  Hennessv 
t.  Wright,  36  W.  R.  879— C.  A. 

As  to  Publication  in  Newspaper.] — In 

an  action  for  libel  in  which  the  defendant  tra- 
versed the  publication ;  denied  that  the  words 
were  published  of  the  plaintiff,  or  in  the  defama- 
tory sense  alleged ;  and  pleaded  fair  comment, 
the  plaintiff  exhibited  interrogatories,  asking 
whether  the  defendant  published  the  libel  in  two 
Irish  papers  specified  in  the  interrogatories,  and 
whether  the  words  were  not  published  of  the 
plaintiff.  The  defendant  was  also  interrogated 
(No.  4)  as  to  whether  he  did  not  publish  the 
wads  complained  of  "in  the  London  Time* 
newspaper,  or  some  other  and  what  newspaper  ? " 
"When  did  such  publication  take  place ?  The 
defendant  answered  all  the  interrogatories  in 
the  one  answer  as  follows  :  "  That  in  bona  fide 
comment  on  the  conduct  and  language  of  the 
plaintiff,  and  in  reference  to  matters  of  public 
interest,  I  caused  to  be  printed  and  published 
of  and  concerning  the  plaintiff  and  others  in  the 
several  newspapers  in  the  said  interrogatories 
mentioned  the  words  in  such  interrogatories 
referred  to,  honestly  believing  the  same  to  be 
true  and  without  malice  "  : — Held,  that  except 
•8  to  the  fourth  interrogatory,  the  answer  was 
sufficient  and  was  not  objectionable,  on  the 
ground  of  its  qualified  form,  but  that  a  further 
answer  should  be  given  to  No.  4,  giving  the  date 
of  the  alleged  publication.  Malone  v.  Fitz- 
fwwW,  18  L.  B.,  Ir.  187— Ex.  D. 

Hemes  of  Persons,  though  probably  Wit- 
nesses.]— In  an  action  for  libel  the  defendant 
pleaded  that  the  libel  was  true.  The  sub- 
stance of  the  libel  was  that  the  plaintiff  had 
kbricated  a  story  to  the  effect  that  a  certain 
areolar  letter  purporting  to  be  signed  by  the 
defendant  had  been  sent  round  to  the  defend- 
ant's competitors  in  business.  The  plaintiff  had  in 
speeches  and  letters  stated  that  he  had  seen  a  copy 
of  the  alleged  letter,  that  two  of  such  letters  were 
in  existence  in  the  possession  respectively  of  a  firm 
of  hankers  and  a  firm  of  manufacturers  at  Birm- 
ingham, and  that  his  informant  in  the  matter 
was  a  solicitor  of  high  standing  at  Birmingham, 
la  interrogatories  administered  by  the  defend- 
ant the  plaintiff  was  asked  to  state  the  name  and 
•duress  of  his  informant,  in  whose  hands  he  had 
Men  the  copy  of  the  letter,  and  the  names  and 
addresses  of  the  persons  to  whom  the  letter  had 
been  sent,  and  in  whose  possession  the  two 
letters  existed ;  bat  he  refused  to  do  so  on  the 


ground  that  he  intended  to  call  those  persons  as 
his  witnesses  at  the  trial : — Held,  that  the  defen- 
dant was  entitled  to  discovery  of  the  names  and 
addresses  of  such  persons  as  being  a  substantial 
part  of  facts  material  to  the  case  upon  the  issue 
on  the  plea  of  justification.  Marriott  v. 
Chamberlain,  17  Q.  B.  D.  154 ;  55  L.  J.,  Q.  B. 
448  ;  54  L.  T.  714  ;  34  W.  R.  783— C.  A. 

As  to  Documents  —  Sufficient  Affidavit]  — 
After  a  defendant  has  made  a  sufficient  affidavit 
of  documents,  the  plaintiff  will  not  be  allowed 
to  administer  to  him  a  general  roving  interroga- 
tory as  to  documents  in  his  possession,  the  effect 
of  which  would  be  to  compel  the  defendant  to 
make  a  further  affidavit  as  to  documents.  There 
may  possibly  be  cases  in  which,  after  a  sufficient 
affidavit  as  to  documents  has  been  made,  the 
court  will  allow  the  plaintiff  to  deliver  an  inter- 
rogatory as  to  some  specific  document  or  docu- 
ments, but  whether  this  shall  be  allowed  is  a 
matter  within  the  discretion  of  the  judge  in 
each  particular  case,  and,  though  his  decision 
can  be  appealed  from,  the  Court  of  Appeal  will 
not  readily  reverse  it.  Jones  v.  Monte  Video  Oat 
Company  (5  Q.  B.  D.  556)  explained.  Hall  v. 
Truman,  29  Ch.  D.  307  ;  54  L.  J.,  Ch.  717 ;  51 
L.  T.  586— C.  A. 

In  an  action  for  the  recovery  of  land  the  de- 
fendant claimed  that  certain  documents  men- 
tioned in  his  affidavit  of  documents  were 
privileged  from  production,  on  the  ground  that 
they  supported  his  title  and  did  not  contain  any- 
thing impeaching  his  defence  or  supporting  the 
plaintiff's  case.  The  defendant's  affidavit  was 
sufficient  on  the  face  of  it.  The  plaintiffs  pro- 
posed to  administer  interrogatories  to  the  de- 
fendant for  the  purpose  of  showing  that  the 
documents  in  question  supported  the  plaintiff's 
title,  and  therefore  that  they  were  not  privileged 
from  production  : — Held,  that  the  interrogatories 
were  inadmissible.  Jones  v.  Monte  Video  Qas 
Company  (5  Q.  B.  D.  556)  and  Hall  v.  Truman 
(29  Ch.  D.  307)  followed.  Meholl  v.  Wheeler, 
17  Q.  B.  D.  101  ;  55  L.  J.,  Q.  B.  231  ;  34  W.  R. 
425— C.  A. 


Particulars  of  Infringement  of  Patent] 


— An  action  was  brought  by  the  registered 
owner  of  two  letters  patent  for  similar  inven- 
tions, dated  in  1883  and  1884,  for  infringement 
of  both  patents.  The  plaintiff  discontinued  the 
action  so  far  as  related  to  the  patent  of  1884. 
The  defendants  then  delivered  interrogatories  as 
to  what  constituted  infringements  of  both  pa- 
tents, and  they  asked  him  as  to  documents  in 
his  possession  relating  to  the  preparation  of  the 
specifications  filed  under  both  patents.  The 
plaintiff  declined  to  answer  on  the  ground  that 
the  particulars  of  infringement  had  been  suffi- 
ciently stated  by  him,  and  as  to  the  documents, 
that  they  were  confidential  communications 
between  himself  and  his  solicitor  and  counsel, 
and  that  such  documents  were  privileged ;  and 
that  as  regarded  any  documents  relating  to  the 
patent  of  1884,  the  interrogatories  were  irre- 
levant to  the  issue.  The  plaintiffs  solicitor  had 
also  acted  as  his  patent  agent : — Held,  that  the 
plaintiff  was  not  obliged  to  give  any  farther 
answer  as  to  the  particulars  of  breaches ;  that 
the  plaintiffs  answer  as  to  documents  was  in- 
sufficient, as  it  did  not  distinguish  between  the 
communications  between  him  and  his  solicitor  as 
such,  and  communications  between  him  and  his 


668 


DISCOVERY— Interrogatories. 


664 


solicitor  in  his  character  of  patent  agent ;  the 
former  class  only  being  privileged.  Moscley  v. 
Victoria  Rubber  Company,  55  L.  T.  482— 
Chitty,  J. 

5.  PRIVILEGE. 

Solicitor  and  Client— Solicitor  Defendant  in 
Action.  ] — In  an  action  for  libel  contained  in  a 
circular,  the  defendants  justified,  giving  full  par- 
ticulars of  the  justification.  The  plaintiff  ad- 
ministered interrogatories  as  to  certain  commu- 
nications referred  to  by  the  defendants,  which 
they  objected  to  answer  upon  the  ground  that  by 
so  doing  they  would  disclose  facts  and  informa- 
tion obtained  by  them  in  confidence  and  acting 
in  their  capacity  as  solicitors  for  a  client : — 
Held,  that  the  defendants  were  not  bound  to 
further  answer  the  interrogatories,  the  privilege 
claimed  not  being  their  privilege,  but  that  of 
their  clients.  Proctor  v.  Smile*,  55  L.  J.,  Q.  B. 
.527— C.  A.    Affirming  55  L.  J.,  Q.  B.  467— D. 

Professional  Confidence.]— The  privilege 

from  discovery  resulting  from  professional  con- 
fidence does  not  extend  to  facts  communicated 
by  the  solicitor  to  the  client  which  cannot  be 
the  subject  of  a  confidential  communication  be- 
tween them,  even  though  such  facts  have  a  rela- 
tion to  the  case  of  the  client  in  the  action.  A 
plaintiff  interrogated  a  defendant  as  to  whether 
interviews  and  correspondence  had  not,  between 
certain  dates,  taken  place  between  their  respec- 
tive solicitors,  and  also  between  the  defendant's 
solicitor  and  a  third  person,  in  reference  to  an 
agreement  the  specific  performance  of  which  it 
was  the  object  of  the  action  to  enforce.  The 
defendant  declined  to  answer  the  interrogatory, 
so  far  as  it  related  to  communications  between 
his  solicitor  and  other  persons,  on  the  ground 
that  he  had  no  personal  knowledge,  and  the  only 
information  he  had  was  derived  from  confidential 
communications  between  him  and  his  solicitor  in 
reference  to  his  defence  in  the  action  :— Held, 
that  he  must  make  a  further  answer.  Foake*  v. 
Webb,  28  Ch.  D.  287  ;  54  L.  J.,  Ch.  262  ;  51  L. 
T.  624  ;  33  W.  R.  249— Kay,  J. 

See  also  Cases,  ante,  I.  4. 


A  party  interrogated  may,  on  a  question  of 
sufficiency,  refer  to  his  whole  affidavit  in  answer 
to  interrogatories,  and  is  not  restricted  to  the 
passages  dealing  with  any  particular  interroga- 
tory, and  all  embarrassment  to  the  interrogating 
party  is  now  obviated  by  the  provisions  of 
Ord.  XXXI.  r.  24  ;  but  he  must  not  endeavour 
to  import  into  an  admission  matter  which  has  no 
connexion  with  the  matter  admitted.    lb. 


Belief  founded  on  Privileged  Communi- 


cations.]— A  party  to  an  action  cannot  be  com- 
pelled  to   answer  interrogatories  asking  as  to 
his  knowledge,  information,  or  belief  with  regard 
to  matters  of  fact,  if  he  swears  that  he  has  no 
knowledge  or  information  with  regard  to  those 
matters  except  such  as  he  has  derived  from 
privileged  communications  made  to  him  by  his 
j  solicitors  or  their  agents  ;  for  since  under  those 
j  circumstances  his  knowledge  and  information 
i  are  protected,  so  also  is  his  belief  when  dented 
'  solely  from    such    communications.     LyHl  v, 
Kennedy,  9  App.  Cas.  81  ;  53  L.  J.,  Ch.  449 ;  50 
L.  T.  277  ;  32  W.  R.  497— H.  L.  (E.). 

The  plaintiff  having  been  interrogated  as  to 
his  knowledge,  information,  and  belief  upon 
matters  relevant  to  the  defendant's  case,  answered 
that  he  had  no  personal  knowledge  of  any  of  the 
matters  inquired  into  ;  that  such  information  as 
he  had  received  in  respect  of  those  matters  had 
been  derived  from  information  procured  by  his 
solicitors  or  their  agents  in  and  for  the  purpose 
of  his  own  case:— Held,  that  the  answer  was 
sufficient.    lb. 


Ho  Information  except  from  Privileged 


Tendency  to  Criminate.]— Leave  to  administer 
interrogatories  ought  not  to  be  refused  on  the 
ground  that  it  is  plain  from  the  nature  of  the 
case  that  they  must  necessarily  criminate  the 
party  interrogated,  who  cannot  answer  them 
without  admitting  that  he  has  been  guilty  of 
felony;  he  may,  however,  decline  to  answer 
them.  Harvey  v.  LoxeUin,  10  P.  D.  122  :  54 
L.  J.,  P.  1  ;  33  W.  R.  188— C.  A. 

6.  THE  ANSWER. 

Sufficiency  of.]— The  duty  of  the  court  with 
reference  to  answers  to  interrogatories  is  now 
regulated  by  Ord.  XXXI.  rr.  10,  11,  and  limited 
to  considering  the  sufficiency  or  insufficiency  of 
the  answer,  i.e.,  whether  the  party  interrogated 
has  answered  that  which  he  has  no  excuse  for 
not  answering— and  only  in  the  case  of  insuffi- 
ciency can  it  require  a  further  answer.  Lyell  v. 
Kennedy,  27  Ch.  D.  1 ;  53  L.  J.,  Ch.  937 ;  50 
L.  T.  730— C.  A. 

Semble  (per  Bowen,  L.J.),  that  an  embarrass- 
ing answer  to  interrogatories  may  be  dealt  with 
as  insufficient.    lb. 


Sonroe.] — In  an  action  for  damage  caused  by 
the  negligence  of  the  defendants  or  their 
servants  in  the  use  of  an  engine,  whereby  sparks 
and  red-hot  cinders  escaped  from  the  engine 
and  set  fire  to  the  plaintiffs  buildings,  the 
plaintiffs  administered  the  following  interroga- 
tory :  "  Have  the  defendants  or  any  of  their 
servants  or  agents  any  knowledge,  information, 
or  belief  as  to  the  cause  of  the  fire  in  respect  to 
the  happening  whereof  this  action  is  brought  ? 
If  yea,  set  out  the  same  fully,  with  dates  and 
all  particulars.  If  any  of  the  said  servants  or 
agents  have  communicated  to  the  defendant* 
such  knowledge,  information,  or  belief,  let  the 
defendants  set  out  the  substance  of  such  com- 
munications, with  dates  and  particulars. n  To 
this  the  defendants  answered :  "  We  have  no 
information  at  all  on  the  subject,  save  such  as 
appears  in  the  reports  set  out  in  the  schedule  to 
our  affidavits,  filed  in  this  cause  on  the  28th 
May,  1884,  and  which  by  the  judgment  of  the 
Divisional  Court  of  the  7th  July  last  were  held 
to  be  privileged  from  production,  which  we 
decline  to  produce : — Held,  that  the  answer 
was  sufficient,  as  a  further  or  better  answer 
could  not  be  given  without  disclosing  the  con- 
tents of  privileged  reports  made  to  the  de- 
fendants by  their  servants,  which  reports  the 
defendants  were  not  bound  to  disclose.  London, 
Tilbury,  and  Southend  Railioay  v.  Kirk,  61  L.T. 
599— D. 

Knowledge  of  Servant  or  Agent.]— In  an 
action  by  owners  of  water  mills  to  restrain  a 
canal  company,  who  had  statutory  power  to  take 
water  from  the  river  on  which  the  plaintiffs' 
mills  were  situate,  from  wrongfully  diminishing 
the  quantity -of  water  in  the  river,  to  the  injury 


665 


DISORDERLY    HOUSE. 


666 


of  the  plaintiffs,  the  defendants  interrogated  the 
plaintiffs,  and  asked  them  to  give  a  list  of  the 
days  between  specified  dates  on  which  they 
alleged  that  the  working  of  their  mills  was  inter- 
fered with  by  the  negligence  of  the  defendants. 
The  plaintiffs  answered  that  they  were  unable 
to  specify  the  particular  days  : — Held,  that  this 
answer  was  sufficient,  and  that  the  plaintiffe 
were  not  bound  to  state  whether  they  had  made 
inquiries  of  their  agent?,  servants,  and  work- 
men. Bolehow  v.  Fisher  (10  Q.  B.  D.  161)  dis- 
tinguished. Basbotham  v.  Shropshire  Union 
Railway*  and  Canal  Company ,  24  Oh.  D.  110  ; 
53  L.  J.,  Ch.  327  ;  48  L.  T.  902  ;  32  W.  R.  117 — 
North,  j. 

Power  to  go  behind  Affidavit.]— Where  in  an 
answer  to  interrogatories  the  party  interrogated 
declines  to  give  certain  information  on  the 
pound  of  professional  privilege,  and  the  privi- 
lege is  properly  claimed  in  law,  the  court  will 
not  require  a  further  answer  to  be  put  in,  unless 
it  is  clearly  satisfied,  either  from  the  nature  of 
the  subject-matter  for  which  privilege  is  claimed, 
or  from  statements  in  the  answer  itself,  or  in 
documents  so  referred  to  as  to  become  part  of 
the  answer,  that  the  claim  for  privilege  cannot 
possibly  be  substantiated.  Lyell  v.  Kennedy, 
27  Ch.  D.  1  ;  53  L.  J.,  Ch.  937  ;  50  L.  T.  730— 
C.A. 

The  mere  existence  of  a  reasonable  suspicion 
which  is  sufficient  to  justify  the  court  in  re- 
quiring a  further  affidavit  of  documents  is  not 
enough  when  a  claim  for  privilege  in  an  answer 
to  interrogatories  is  sought  to  be  falsified.    lb. 

The  defendant  E.  in  his  answer  to  interro- 
gatories objected  to  disclose  certain  information 
asked  for  by  the  plaintiff  L.  on  the  ground  of 
professional  privilege,  which  the  court  held  pro- 
perly claimed  in  law.  L.  sought  by  reference  to 
certain  admissions  in  the  answer  itself,  and  from 
documents  referred  to  in  the  interrogatories  and 
answer,  as  well  as  from  documents  scheduled  to 
K/s  affidavit  of  documents,  to  show  that  the 
information  sought  was  obtained  under  circum- 
stances which  negatived  the  claim  of  privilege, 
and  sought  a  further  answer : — Held,  that  no 
farther  answer  should  be  required,  as  the 
admissions  in  the  answer  and  in  the  documents 
referred  to  therein  only  raised  a  case  of  sus- 
picion at  the  most,  which  might  be  capable 
of  explanation  if  K.  were  at  liberty  to  make  an 
affidavit.    lb. 

The  court  declined  to  decide  how  far,  under 
the  present  practice,  reference  could  be  made,  as 
against  the  interrogated  party,  to  any  document 
in  has  possession  not  referred  to  in  his  answer, 
tat  only  scheduled  to  his  affidavit  of  documents. 

n. 

.  IrrtlsTaat  and  Embarrassing.] — Where  an 
interrogatory  setting  out  a  certain  letter  and 
asking  whether  the  defendant  had  written  such 
a  letter  or  one  to  the  same  purport  and  effect  at 
any  time  to  any  person,  was  answered  by  ninety 
folk*  of  matter  giving  the  whole  circumstances 
of  the  case : — Held,  that  such  an  answer  was 
irrelevant  and  embarrassing,  although  a  reason- 
able and  legitimate  explanation  of  an  answer  to 
an  interrogatory  is  relevant.  Lyell  v.  Kennedy, 
»  W.  R.  44— D. 

SMUbsj  out — Prolixity.  1— Where  interroga- 
tories are  unreasonably  prolix,  it  is  the  duty  of 


the  court  to  strike  them  out  under  Order  XXXI. 
r.  7.  Orumbrecht  v.  Parry,  32  W.  R.  558— 
C.  A.  Affirming,  49  L.  T.  570  j  5  Asp.  M.  C.  17ft 
— D. 

Order  for  farther  Answer  viva  vooe.1— When 
a  person  interrogated  has  answered  insufficiently 
and  has  been  ordered  to  further  answer  by  viva 
voce  examination,  he  can  only  be  required  to 
give  viva  voce  such  an  answer  to  the  particular 
interrogatories  mentioned  in  the  order  as  would 
have  been  sufficient  if  it  had  been  given  by  his 
affidavit  in  answer  to  interrogatories.  The  costs 
of  any  examination  exceeding  these  limits  must 
be  paid  by  the  party  examining.  Litchfield  v. 
Jones,  54  L.  J.,  Ch.  207  ;  51  L.  T.  572  ;  33  W.  R. 
251 — Pearson,  J. 


DISORDERLY    HOUSE. 

Licence  for  Dancing.  ] — Where  dancing  is  not 
the  principal  part  of  a  public  entertainment, 
even  though  it  is  the  principal  part  of  a  par- 
ticular performance  in  the  entertainment,  if 
that  particular  performance  be  not  a  principal 
part  of  the  entertainment,  a  dancing  licen.ee  is 
not  required  under  25  Geo.  2,  c.  36,  s.  2.  Tay  v. 
Bignell,  1  C.  &  E.  112— Cave,  J. 

Brothel  —  Prosecution  —  Alternative  Proce- 
dure.]— In  a  prosecution  of  a  brothel-keeper 
under  s.  13  of  the  Criminal  Law  Amendment 
Act,  1885,  it  is  competent  to  the  prosecutor 
either  to  proceed  summarily  under  that  act  in- 
dependently of  the  earlier  acts,  or  he  may,  at  his 
option,  comply  with  the  preliminary  steps  speci- 
fied in  s.  5  of  25  Geo.  2,  c.  36,  as  amended  by  s.  7 
of  58  Ged.  3,  c.  70,  and  then  become  entitled  to 
a  reward.  Kirwin  v.  Hines,  54  L.  T.  610  ;  50 
J.  P.  230— D. 

Having  or  keeping  House  for  Performance  of 
Stage  Plays.] — The  appellant  was  the  owner 
and  occupier  of  a  building  which  he  gratuitously 
allowed  to  be  used  on  a  few  occasions  for  the 
performance  of  stage  plays,  to  which  the  public 
were  admitted  on  payment,  for  the  benefit  of  a 
charity.  The  appellant  had  no  licence  for  the 
performance  of  stage  plays  in  such  building : — 
Held,  that  he  was  rightly  convicted  of  having  or 
keeping  a  house  for  the  public  performance  of 
stage  plays  without  a  licence,  under  6  k  7  Vict, 
c.  61,  s.  2.  Shelley  v.  Bethell,  12  Q.  B.  D.  11  ; 
53  L.  J.,  M.  C.  16  ;  49  L.  T.  779  ;  32  W.  R.  276  ; 
48  J.  P.  244— D. 


DISTRESS. 

When  Protected  in  Bankruptcy.]— &?<?  Bank- 
buptct,  XI.  2. 

In  Winding-up  of  Companies.]  —  See   Com- 
pany, XI.  6. 

In   other    Cases.]  —  See    Landlord    and 
Tenant. 


667 


DISTRICT    REGISTRY— DRAINAGE. 


668 


DISTRICT    REGISTRY. 

Petition  to  Wind-up — Removal  of  Cans*  to 
London.}— Ord.  XXXV.  r.  16,  provides  that, "  In 
any  case  not  provided  for  by  rules  13  and  14, 
any  party  to  a  cause  or  matter  proceeding  in  a 
district  registry  may  apply  to  the  court  or  a 
judge,  or  to  the  district  registrar,  for  an  order  to 
remove  the  cause  or  matter  from  the  district 
registry  to  London,  and  the  court,  judge,  or 
registrar  may  make  an  order  accordingly,  if 
satisfied  that  there  is  sufficient  reason  for  doing 
so,  upon  such  terms,  if  any,  as  shall  be  just." 
Circumstances  under  which  an  order  for  transfer 
to  the  High  Court  will  not  be  made.  Neath  and 
Bristol  Steamship  Company,  In  re,  58  L.  T.  180 
— Kekewich,  J. 

Administration  Action — Taxing  Officer.] — The 

court  can,  in  its  discretion,  order  the  taxation  of 
costs  in  an  administration  action,  commenced 
and  prosecuted  in  a  district  registry,  to  be  made 
by  the  district  registrar.  The  term  "taxing 
officer"  in  rr.  3, 11,  and  12  of  Supreme  Court 
Funds  Rules,  1884,  these  rules  being  read  in 
conjunction  with  Ord.  LXV.  r.  27,  sub-s.  43,  of 
Rules  of  Supreme  Court,  1883,  includes  "  district 
registrar,"  where  the  court  has  directed  taxation 
to  be  made  by  that  officer,  and  the  paymaster  is 
bound  to  act  on  the  certificate  of  taxation  of  a 
district  registrar,  when  the  court,  in  the  exercise 
of  its  discretion,  has  directed  taxation  in  the 
district  registry.  The  court,  however,  following 
Day  v.  Whittaher  (6  Ch.  D.  734),  will  not, 
except  under  very  special  circumstances,  direct 
the  costs  of  an  action  commenced  in  a  district 
registry  to  be  taxed  otherwise  than  by  a  taxing- 
master  of  the  Chancery  Division.  Wilson,  In  re, 
Wilson  v.  Alltree,  27  Ch.  D.  242  ;  53  L.  J.,  Ch. 
989 ;  32  W.  R.  897— Chitty,  J. 


DIVIDEND. 


See  COMPANY. 


DIVORCE. 


See  HUSBAND  AND  WIFE. 


DOCK    COMPANY. 

See  SHIPPING. 


DOCTOR. 


See  MEDICINE. 


DOCUMENTS. 

Obtaining  Discovery  and  Inspection  of.]— Set 
Disooyeby. 

Action  for  Defacing  Document  as  to  Character.] 

—See  MASTEB  AND  SERVANT. 

Order  to  Deliver  np.] — See  Solicitob,  V.  1.  e. 
Other  Points.]— &*?  Deed. 


DOG. 


Carriage  of  Dogs.]— See  Cabbiebb. 
License  for.]— See  Revenue  (Excise). 
Injuries  earned  by.] — See  Animals. 


DONATIO   MORTIS  CAUSA. 


See  WILL. 


DOMICIL. 

See  INTERNATIONAL  LAW. 


DOWER. 


See  HUSBAND  AND  WIFE. 


DRAINAGE. 

Mortgage  of  Glebe  by  Vicar— Forecloiun 
Aotion— Parties.] — A  vicar  is  a  person  having  a 
limited  interest  within  the  meaning  of  s.  3  of  the 
Landowners  West  of  England  and  South  Wales 
Land  Drainage  and  Inclosure  Companies  Act, 
and  may  charge  his  glebe  land  thereunder.  To 
a  foreclosure  action  under  such  a  mortgage  the 
patron  of  the  living  is  not  a  necessary  party. 
Goodden  v.  Coles,  69  L.  T.  309  ;  36  W.  K.  828- 
Kekewich,  J. 


I 


Certificate  of  Inclosure  Coi 
Validity  of  Charge— Borrowing  Powers.]— The 
River  Dee  Company  was  by  act  of  parliament 
empowered  to  borrow  upon  mortgage  of  the 
lands  of  the  company  any  sums  not  exceeding 
25,000Z.  The  company,  however,  borrowed  more. 
After  this  the  Lands  Improvement  Company, 


669 


EASEMENTS    AND    PRESCRIPTION. 


670 


baring  by  its  acts  power  to  advance  to  land- 
owners money  for  the  improvement  of  land, 
advanced  to  the  River  Dee  Company  6.405/., 
and  by  an  order  the  Inclosure  Commissioners 
purported  to  charge  the  lands  of  the  River  Dee 
Company  with  the  repayment  of  that  sum  and 
interest  by  annual  instalments  : — Held,  that  the 
powers  given  by  the  Lands  Improvement  Com- 
pany's Acts  did  not  override  the  restriction  on 
the  borrowing  powers  of  the  River  Dee  Com- 

Eny,  and  that  the  charge  on  the  lands  of  the 
rer  Dee  Company  was  consequently  invalid  ; 
and  that  a  clause  in  one  of  the  Lands  Improve- 
ment Company's  Acts  making  the  certificate  of 
the  Inclosure  Commissioners  conclusive  evidence 
d  toe  validity  of  a  charge  under  the  act  did  not 
render  the  charge  valid  in  such  a  case.  Wenloek 
(Baronets)  v.  River  Dee  Company,  38  Ch.  D. 
534 ;  57  L.  J.,  Ch.  946  ;  59  L.  T.  485— C.  A. 

—  land  Drainage  Charge— Priority.]— The 
General  Land  Drainage  and  Improvement  Com- 
pany's Act,  1849.  and  the  Lands  Improvement 
Company's  Act,  1853,  each  contained  a  section 
which  provided  that,  upon  the  final  order  or 
certificate  of  the  Inclosure  Commissioners  and 
the  execution  of  the  improvements,  the  company 
should  have  a  first  charge  upon  the  inheritance 
<rf  the  improved  lands  in  priority  over  every 
other  then  existing  or  future  charge.  The  com- 
pany of  1853  having  executed  improvements  on 
land  already  subject  to  a  charge  in  favour  of  the 
company  of  1849,  contended  that  the  latter 
chaige  was  displaced  by  theirs: — Held,  that 
the  two  sections  were  not  irreconcilable,  and 
that  the  charge  which  was  first  in  order  of 
time  was  entitled  to  priority.  Pollock  v.  Land* 
Improvement  Company.  37  Ch.  D.  661  ;  57 
L  J.,  Ch.  853  ;  58  L.  t.  374  :  36  W.  R.  617— 
Chitty,J. 

Order  to  Repair  Sea  Wall —  Validity— 
Interest] — The  presentment  of  a  jury  at  a  court 
of  sewers  in  1861  found  that  the  then  owner  of 
A's  land  was  bound  by  reason  of  his  tenure  to 
lepair  a  portion  of  the  sea-wall  fronting  the 
land  so  as  to  prevent  the  influx  of  the  waters. 
In  1881-2  the  commissioners  of  sewers  made 
orders  upon  A.  as  the  owner  of  the  land  to 
repair  this  portion  of  the  wall,  it  having  been 
destroyed  by  an  extraordinary  storm  and 
high  tide.  These  orders  were  made  "upon 
reading  the  presentment"  of  1861.  One  of  the 
commissioners  who  made  the  orders  was  person- 
ally interested  as  an  owner  of  lands  within  the 
level ;— Held,  that  if  the  commissioners  had 
Bade  the  orders  under  the  powers  of  s.  33  of 
the  Land  Drainage  Act,  1861  (24  &  25  Vict. 
1 133)  they  must  themselves  have  found  as  a 
act  A's  liability  ;  that  if  they  had  exercised 
inch  a  jurisdiction  they  would  have  been  acting 
Judicially,  and  that  in  that  case  the  orders  would 
bre  been  invalidated  by  the  fact  that  one  of  the 
commissioners  was  disqualified  by  reason  of  in- 
terest. Fobbing  Commissioners  v.  Reg.,  11  App. 
Cm.  449 ;  66  L.  T.  493  ;  34  W.  R.  721— H.  L. 
(R).  Affirming  54  L.  J.,  M.  C.  89  ;  49  J.  P.  404 
~"HJ.  A. 

U  Metropolitan  District.]— See  Metbopolis. 
la  ether  Place*.]— See  Health. 


DWELLINGS. 

Artisans '  Dwellings.] — See  Artizans. 


DYING    DECLARATION. 

See  Criminal  Law  (Practice). 


EASEMENTS  AND  PRE- 
SCRIPTION. 

I.  Rights  op  Way,  670. 
II.  Light  and  Air,  676. 

III.  Watercourses,  681. 

IV.  Right  of  Support,  684. 
V.  In  other  Cases,  686. 

I.    RIGHTS  OF  WAY. 

Way  of  Necessity — Land  taken  Compulsorily 
—Public  Undertaking.] — A.  and  B.  had  respec- 
tively acquired  interests  under  building  agree- 
ments in  two  adjoining  plots  of  land.  A  local 
board  under  their  compulsory  powers  took  half 
an  acre,  part  of  A.'s  holding,  and  five  acres,  part 
of  B.'s  holding,  for  the  purpose  of  sewage  works, 
the  necessary  proceedings  having  been  taken  as 
against  A.  and  B.  in  respect  of  their  several 
interest,  and  against  the  reversioner  C,  in 
respect  of  the  whole  five  and  a  half  acres.  The 
only  way  to  the  land  taken,  was  a  warple  way 
over  another  part  of  A.'s  building  plot,  which,  for 
thirty  years  before  the  building  agreements,  had 
been  used  by  the  occupiers  of  both  A.'s  and  B.'s 
land  for  purposes  of  cultivation,  and  since  the 
building  agreements  had  been  used  by  A.  for  his 
own  building  purposes : — Held,  that  the  local 
board  had  a  right  of  way  over  the  warple  way 
for  all  necessary  purposes  in  connexion  with  the 
sewage  works.  Serff  v.  Acton  Local  Board,  31 
Ch.  D.  679  ;  55  L.  J.,  Ch.  569  ;  54  L.  T.  379 ;  34 
W.  R.  563— Pearson,  J. 

Implied  Grant — Way  formed  during  Unity  of 
Possession.] — Where,  during  unity  of  possession, 
a  particular  and  defined  way  is  formed  and  used 
over  property  which  is  afterwards  severed  and 
granted  by  the  owner  to  different  persons,  the 
right  of  using  the  way  as  it  is  then  used  may 
pass  by  implication,  although  it  be  not  a  way  of 
necessity,  and  although  the  general  words  of  the 
conveyance  are  not  sufficient  to  pass  such  a 
right.    Brown  v.  Alabaster,  37  Ch.  D.  490 ;  57 


L.  J.,  Ch. 
Kay,  J. 


255 :  58  L.  T.  265 :  36  W.  R.  155— 


671 


EASEMENTS    AND    PRESCRIPTION. 


672 


Grant  by  General  Wordi— Implication — 
Street!  not  yet  Formed.]— By  a  deed  of  convey- 
ance land  was  conveyed  to  the  respondents'  pre- 
decessor in  title,  "  the  situation,  dimensions,  and 
boundaries  whereof  are  particularly  described  in 
the  map  or  plan  drawn  on  these  presents  .  .  . 
together  with  all  streets,  ways,  rights,  easements, 
and  advantages."  The  plan  showed  a  piece  of 
land  at  the  intersection  of  "  G.  street "  and  "  M. 
street,"  which  were  delineated  communicating 
on  a  level.  The  land  was  in  fact,  at  the  date  of 
the  conveyance,  waste  building  land  on  the  out- 
skirts of  a  town,  and  neither  of  the  streets  had 
been  made  or  dedicated  to  the  public.  The  soil 
of  the  intended  streets  was  the  property  of  the 
vendor.  Houses  were  built  on  the  land  fronting 
M.  street,  and  both  streets  were  made,  and  used 
as  streets ;  but  the  appellant  company  after- 
wards made  a  branch  line  passing  under  G. 
street,  near  the  property  in  question,  and  thereby 
altered  the  level  of  that  street,  and  cut  off  the 
access  for  horses  and  vehicles  from  M.  street 
into  G.  street ;  a  means  of  access  for  foot- 
passengers  remained  : — Held,  that  the  convey- 
ance granted  to  the  purchaser  a  right  of  way 
from  M.  street  into  G.  street,  and  that  the 
alteration  of  levels  had  "injuriously  affected*' 
the  land  so  as  to  entitle  the  respondents  to  com- 
pensation. Fur  ties  a  Bailway  v.  Cumberland 
Co-operative  Building  Society,  52  L.  T.  144  ;  49 
J.  P.  292— H.  L.  (E.). 


"Appurtenances."]— The  plaintiff   and 


tenancy  was  constituted ;  that  there  was  an 
implied  reservation  of  the  right  of  way  out  of 
the  defendant's  lease  ;  and  that  the  right  of  way 

.  over  the  lane  passed  to  the  plaintiff  hy  the  lease 
of    1878    under    the    word    '•appurtenances." 

!  Thomas  v.  Owen.  20  Q.  B.  D.  226 ;  57  L.  JM  Q.  B. 

■  198  ;  58  L.  T.  162;  36  W.  R.  440;  52  J.  P. 
516— C.  A. 


"Right  occupied  or  enjoyed  u  Panel 


defendant  were  tenants  under  the  same  landlord 
of  adjoining  farms  near  the  sea-coast,  to  which 
a  highway  ran  through  the  defendant's  farm  ; 
the  plaintiff's  farm  communicated  with  the 
highway  by  a  private  road,  which  joined  the 
highway  at  A.  From  a  point  on  the  plaintiff's 
farm  and  on  the  private  road,  an  ancient  lane 
ran  to  a  spot  on  the  highway  nearer  than  A.  to 
the  sea-coast ;  this  lane  was  not  only  the  nearest 
way  from  the  plaintiffs  farm  to  the  sea-coast, 
but  was  also  level,  whereas  the  private  road  was 
steep  and  hilly.  The  lane,  which  was  a  formed 
roadway  bounded  on  either  side  by  turf  banks 
and  hedges,  ran  wholly  through  the  defendant's 
land,  except  for  a  few  yards  where  it  started 
from  the  private  road  on  the  plaintiff's  farm,  but 
it  had  no  communication  on  either  side  with  the 
defendant's  land,  and  was  only  open  to  the 
defendant's  access  at  the  point  where  it  joined 
the  highway  ;  it  had  been  used  for  many  years 
by  the  plaintiff,  and  had  been  from  time  to  time 
repaired  by  him.  Prior  to  1873  the  plaintiff  and 
defendant  were  tenants  from  year  to  year  of 
their  respective  farms  ;  in  that  year  the  landlord 
granted  to  the  defendant  a  lease  of  his  farm, 
which  contained  no  reference  to  the  lane,  or  to 
its  user  by  the  plaintiff ;  but  the  soil  of  the  lane 
was  admittedly  included  in  the  admeasurements 
of  the  defendant's  farm.  In  1878  the  landlord 
granted  to  the  plaintiff  a  lease  of  his  farm  "  and 
all  houses,  buildings,  and  appurtenances  thereto 
belonging,"  in  which  no  specific  mention  was 
made  of  the  lane  or  of  any  right  of  way  over  it. 
The  defendant  having  interfered  with  the  plain- 
tiff's user  of  the  lane : — Held,  that  the  lease  to 
the  defendant  did  not  amount  to  a  demise  of  the 
soil  of  the  lane  free  from  the  plaintiff's  right  of 
way,  inasmuch  as  the  lessor,  not  being  in  pos- 
session at  the  date  of  the  lease,  could  not  make 
such  a  demise  without  derogating  from  the  grant 
to  the  plaintiff  under  which  his  then  existing 


or  Member"  of  Tenement  granted.]— A  railway 
company  purchased,  under  the  powers  of  their 
act,  a  piece  of  land  on  which  was  a  stable.  By 
the  conveyance  to  the  company  the  premise* 
were  granted  together  with  all  u  rights,  members, 
or  appurtenances  to  the  hereditaments  belonging 
or  occupied  or  enjoyed  as  part,  parcel  or  member 
thereof."  The  vendor  had  many  years  previously 
made  a  private  road  from  the  highway  to  the 
stable  over  his  own  land  for  his  own  conre- 
nience,  and  had  used  it  ever  since ;  the  soil  of 
this  road  was  not  conveyed  to  the  company  and 
no  express  mention  of  it  was  made  in  the  con- 
veyance. The  plaintiff  refused  to  allow  the 
company  to  use  the  road  : — Held,  that  notwith- 
standing the  unity  of  possession  of  the  stables 
and  the  private  road  at  the  date  of  the  convey- 
ance to  the  company,  a  right  of  way  passed  to 
the  company  under  the  general  words  in  the 
conveyance.  Kay  v.  Oxley  (10  L.  R.,  Q.  B,  360). 
and  Watts  v.  Kelton  (6  L.  R.,Ch.  166),  followed. 
Bayley  v.  Great  Western  Railway,  26  Ch,  D. 
434  ;  51  L.  T.  337— C.  A. 

User  of  Right  of  Way— Change.]— The  fact  of 
the  stable  having  been  purchased  by  a  railway 
company  for  the  purposes  of  their  undertaking 
did  not  preclude  them  from  claiming  the  right 
of  way  so  long  as  they  used  the  premises  as  a 
stable ;  which  they  might  lawfully  do  till  such 
time  as  they  were  required  for  the  special  par- 
poses  of  the  railway,  or  were  sold  as  superfluous 
land.  Whether  the  railway  company  would  be 
entitled  to  claim  the  right  of  way  after  they  had 
ceased  to  use  the  premises  as  a  stable,  and  bad 
converted  them  to  some  purpose  connected  with 
the  railway,  quaere.    lb. 

Prescription  Act — "Person  entitled  to  aay 
Reversion" — Remainderman.] — Where  a  right 
of  way  is  claimed  by  virtue  of  forty  years'  en- 
joyment under  the  Prescription  Act,  2  &  3  Will. 
4,  c.  71,  the  period  during  which  the  servient 
tenement  has  been  vested  in  a  tenant  for  life, 
with  remainder  in  fee,  cannot  be  deducted  from 
the  period  of  forty  years'  enjoyment,  for  the 
remainderman  is  "  not  a  person  entitled  to  the 
reversion  expectant  on  a  term"  within  s.  8- 
Symons  v.  Leaker,  15  Q.  B.  D.  629  ;  54  L.  J.,  Q» 
B.  480  ;  53  L.  T.  227  ;  33  W.  R.  875  ;  49  J.  P. 
775— D. 


User  of  Way  at  Long  Interval*.]— in  an 


action  where  a  right  of  way  was  claimed  under 
the  Prescription  Act  (2  &  3  Will.  4,  c.  71),  a  % 
in  respect  of  twenty  years'  user  as  of  right,  it 
appeared  that  the  way  had  only  been  used  by 
the  party  claiming  it,  the  defendant,  for  the 
removal  of  wood  cut  upon  an  adjoining  close. 
The  wood  was  cut  upon  this  close  at  intervals  of 
several  years;  the  last  catting  having  been  in 
the  year  in  which  the  action  was  commenced, 
the  one  next  previous  fifteen  years  before,  and 
the  next  at  another  interval  of  fifteen  years. 


673 


EASEMENTS    AND    PRESCRIPTION 


67* 


Between  these  intervals  the  road  was  occasion, 
illj  stopped  up,  bat  the  defendant  used  it  as 
often  sb  he  wished  while  the  wood  was  being 
cut  .—Held,  that  there  had  not  been  an  uninter- 
rupted enjoyment  of  the  way  for  twenty  years 
within  the  meaning  of  s.  2  of  the  Prescription 
Act  which  did  not  apply  to  so  discontinuous  an 
essement  as  that  claimed.  Ilollins  v.  Verney, 
13Q.  B.  D.  304  ;  53  L.  J.,  Q.  B.  430  ;  61  L.  T. 
763;  33  W.  R.  5  ;  48  J.  P.  580— C.  A. 

—  Thinly-populated  District— Evidence  of 
Jut.  J— In  an  action  claiming  a  public  right  of 
wiy  oyer  a  track  or  natural  mountain  pass  about 
foorteen  miles  long,  running  through  a  thinly- 
popoJited  district  of  the  Highlands  of  Scotland 
ind  connecting  by  the  shortest  route  Braemar 
tnd  Clova,  it  appeared  from  the  evidence  of  user 
that  the  track  in  question  had  been  used  by  the 
pontic  on  foot ;  by  drovers  twice  a  year  driving 
sheep  from  a  market  held  at  Braemar  to  one 
held  near  Clova ;  that  public  subscriptions  had 
been  collected  for  a  bridge  in  the  line  of  the  track ; 
that  some  distance  up  the  disputed  track  there 
was  an  old  mile-stone,  and,  that  a  proprietor  in 
planting  trees  had  specially  left  a  space  for  the 
tack  .—Held,  that  the  amount  of  user,  having 
regard  to  the  character  of  the  district,  was  such 
as  might  have  been  expected  if  the  track  had 
heen  admittedly  a  public  way  and  not  the  subject 
of  mere  tolerance,  and  that  the  evidence  was 
sufficient  to  establish  the  right  of  way.    Mac- 
fkerwn  v.  8cotti*h  Right*  of  Way  and  Recrea- 
te* Society,  13  App.  Gas.  744— H.  L.  (Sc.) 

—  Ion-user  for  long  Period.] — According 
to  the  law  of  Scotland,  the  constitution  of  a 
public  right  of  way  does  not  depend  upon  any 
legal  fiction,  but  upon  the  fact  of  user  by  the 
public  as  matter  of  right  continuously  and  with- 
«it  interruption  for  forty  years.  And  the 
amount  of  user  must  be  such  as  might  have  been 
reasonably  expected  if  the  road  in  dispute  had 
been  an  undoubted  public  highway.  Also,  the 
aser  must  be  a  user  of  the  whole  road  as  a  means 
of  passage  from  one  terminus  to  the  other,  and 
■rast  not  be  such  a  user  as  can  be  reasonably 
ascribed  either  to  private  servitude  rights  or  to 
the  licence  of  the  proprietor.  The  continued 
exclusion  of  the  public  from  the  use  of  an  alleged 
public  road  for  thirty-seven  years  will  not,  perse, 
destroy  a  pre-existent  right  of  public  way  unless 
h  ■  maintained  for  the  prescriptive  period  of 
forty  years,  but  it  is  strong  evidence  that  no  such 
public  right  ever  existed.  Mann  v.  Brodie,  10 
App.  Cat.  37a— H.  L.  (Sc.). 

Ohstrnetion-— Extent  of  Bight.]— The  defen- 
dant, the  owner  of  a  building  estate,  conveyed 
to  the  predecessor  in  title  of  the  plaintiff  one  of 
the  plots  of  ground  on  the  estate,  and  in  the 
conveyance  granted  to  him  the  right  for  himself, 
■is  heirs,  and  assigns,  and  his  and  their  families, 
tenants,  servants  and  workpeople,  with  or  with- 
o«  horses,  cattle,  carts  and  carriages,  to  pass 
rat  the  several  roads  made  or  to  be  made  through 
the  estate;  in  the  same  manner  and  as  fully  as  if 
the  same  roads  were  public  roads.  Two  of  the 
nsds  on  the  estate  were  forty  feet  wide,  twenty 
fast  in  the  middle  being  gravelled  for  cart  and 
carriage  traffic,  and  there  being  a  strip  of  grass 
tafoet  wide  on  either  side.  The  plaintiff,  in 
ooftsmon  with  other  residents  on  the  estate,  was 
Meastomed  to  walk  along  these  grass  strips  to 


and  from  his  house,  which  was  built  on  the  plot 
of  ground  so  conveyed  as  above  stated.  The 
defendant  caused  six  ditches  or  trenches,  each 
about  fifteen  inches  wide  and  ten  inches  deep,  to 
be  cut  completely  across  the  strips  of  grassland 
at  the  sides  of  the  road  near  the  plaintiff's  house, 
the  earth  taken  out  of  the  ditches  being  banked 
up  at  the  edges  of  the  ditches,  and  the  plaintiff's 
passage  along  the  strips  was  thereby  rendered 
difficult  and  dangerous.  The  plaintiff  claimed  an 
injunction  against  the  defendant  to  restrain  the 
continuance  of  the  impediments  to  his  right 
of  way.  The  defendant  contended  that  the  plain- 
tiffs right  of  way  was  the  same  as  that  of  the 
public  along  a  highway,  and  that  the  public  ways 
had  similar  ditches  and  trenches  cut  through 
the  grass  at  their  Bides  for  drainage  and  similar 
purposes,  and  it  was  proved  that  in  many  rural 
roads  in  the  district  such  ditches  or  "  grips  "  were 
made  : — Held,  that  the  right  of  the  public  to  use 
a  highway  extends  to  the  whole  road,  and  not 
merely  to  the  part  used  as  via  trita ;  that  these: 
ditches,  if  cut  on  a  public  highway,  would  have 
amounted  to  a  nuisance  and  obstruction  ;  and 
that,  therefore,  as  the  plaintiff  had  the  same, 
rights  over  the  road  as  the  public  would  have 
over  a  public  highway,  he  was  entitled  to  the 
injunction.  Niool  v.  Beaumont  1  53  L.  J.,  Oh. 
853  ;  50  L.  T.  112— Kay,  J. 

Lease — "Heirs  or  Assigns"  —  Begrant  of 
Easement  by  Losses— Kerger  in  Be  version.] — 
D.  and  0.,  co-owners  of  an  estate,  by  deed  de- 
mised for  a  term  of  1000  years  a  strip  of  land 
intersecting  the  estate  for  the  purpose  of  making 
a  canal,  with  the  proviso  that  nothing  should 
prevent  D.  and  C,  "  their  heirs  or  assigns,"  from 
using  any  of  the  land  demised  or  any  stream  of 
water  flowing  over  the  same,  or  from  granting  any 
wayleaves  across  the  same  for  the  carriage  of 
goods,  &c,  or  for  any  other  purpose  in  like 
manner  as  they  could  have  used  the  same  in  case 
the  lease  had  not  been  granted,  but  so  as  not  to 
injure  the  canaL  The  canal  was  made,  and  the 
estate  was  afterwards  partitioned  by  deed  be- 
tween D.  and  C,  the  reversion  in  a  portion  of 
the  canal  being  conveyed  to  C,  and  the  adjoin- 
ing lands  on  each  side  of  that  portion  being  con- 
veyed to  D.  C.  afterwards  conveyed  the  rever- 
sion in  that  portion  of  the  canal  to  the  lessees. 
D.  as  owner  of  the  lands  intersected  by  that 
portion  of  the  canal  having  claimed  to  grant 
wayleaves,  &c,  and  build  a  bridge  across  it  for 
the  purpose  of  making  an  access  from  one  side 
to  the  other  : — Held,  that  upon  the  true  con- 
struction of  the  lease  the  proviso  operated  as  a 
covenant  with  D.  and  C.  as  owners  of  the  rever- 
sion and  not  as  owners  of  the  adjoining  lands  ; 
that  this  covenant  ran  with  the  reversion ;  and 
that  when  the  reversion  in  that  portion  of  the  canal 
became  vested  in  the  lessees  there  was  a  merger, 
and  the  rights  under  the  proviso  were  extin- 
guished as  to  that  portion  of  the  canal.  Dynevor 
(Lord)  v.  Tennant,  13  App.  Cas.  279  ;  57  L.  J., 
Ch.  1078 ;  69  L.  T.  5  ;  37  W.  R.  193— H.  L.  (K.) 

Action  for  Interference — Statement  of  Claim.] 
— In  an  action  for  interfering  with  the  plaintiffs' 
right  of  way  to  a  certain  quarry,  the  plaintiffs 
alleged,  in  the  first  paragraph  of  their  statement 
of  claim,  that  they  were  entitled  to  a  right  of 
way  from  the  public  highway  through  a  certain 
gateway  along  a  certain  passage  to  the  said 
quarry,  and  back  again  from  the  said  quarry 

Z 


•75 


EASEMENTS    AND    PRESCRIPTION 


676 


to  the  public  highway,  for  themselves,  their 
•gents,  servants  and  licensees,  on  foot  and  with 
horses,  carts  and  carriages,  at  all  times  of  the 
year ;  and  in  the  second  paragraph  they  alleged 
that  they  were  entitled  to  a  right  of  way  from 
the  public  highway  through  a  certain  gateway 
along  a  certain  passage  to  the  said  quarry,  and 
back  again  from  the  said  quarry  to  the  public 
highway,  for  themselves,  their  agents,  servants 
and  licensees,  on  foot  and  with  horses  and  carts, 
at  all  times  convenient  and  necessary  for  the 
working  of  the  said  quarry,  and  for  removing 
stones,  gravel  and  other  material  therefrom.  On 
motion  to  set  aside  the  first  and  second  para- 
graphs of  the  statement  of  claim  :— Held,  that 
the  statement  of  claim  was  sufficient.  Kenmare 
(Lord)  v.  Casey,  12  L.  B.,  Ir.  374— Q.  B.  D. 

II.    LIGHT  AND  AIB. 

Implied  Reservation  —  Notice  —  Building 
Schema— Xerger  of  Lease— Surrender.]  — By 
seven  simultaneous  leases  seven  plots  of  lands 
marked  respectively  A,  B,  C,  D,  E,  F,  and  G, 
and  forming  together  one  square  block,  were 
demised  by  the  owner  to  J.  with  a  ground  plan 
en  each  lease,  and  with  covenants  for  the  erec- 
tion and  maintenance  of  buildings  upon  each 
plot  according  to  certain  plans.  The  leases  were 
granted  with  the  view  to  the  erection  upon  the 
whole  block  of  one  large  edifice,  of  which  the 
several  parts  and  the  internal  arrangements 
were  to  be  connected  together  for  a  common 
use  and  occupation ;  so,  however,  as  to  be  separ- 
able (if  desired)  into  seven  separate  buildings. 
J.  being  in  the  occupation  of  the  whole,  while 
the  buildings  were  being  erected,  mortgaged  C, 

F,  and  G,  by  a  sub-lease  which  recited  the  build- 
ing scheme  and  the  original  leases  of  C,  F,  and 

G,  and  contained  stipulations  for  the  completion 
of  the  buildingB  on  C,  F,  and  G.  After  the 
buildings  had  been  substantially  completed,  J. 
mortgaged  £  by  a  deed  which  recited  the  lease 
of  E  and  assigned  the  buildings  thereon,  subject 
to  the  covenants  in  the  lease,  to  one  who  had 
notice  of  the  general  plan  of  the  buildings.  J. 
then  mortgaged  B.  On  J.'s  bankruptcy  the 
several  mortgagees  obtained  foreclosure  decrees 
in  respect  of  B,  C,  and  E  respectively : — Held 
(Lord  Blackburn  dissenting),  that  though  there 
was  no  express  reservation  of  the  right  to  light, 
yet,  looking  at  the  plans,  the  covenants  in  the 
original  leases,  and  the  mortgage  deeds,  the 
mortgagees  of  0  and  E  respectively  were  by 
reasonable  implication  precluded  from  interfer- 
ing with  the  light  to  the  windows  in  B  which 
looked  out  upon  C  and  E  respectively,  and 
might  be  restrained  accordingly  in  an  action  by 
the  mortgagee  of  B  : — Held  also,  that  the  mort- 
gagee of  B  could  maintain  such  an  action, 
although  he  had  surrendered  the  lease  of  B  and 
taken  a  fresh  lease  from  the  original  lessor ;  for, 
without  deciding  what  effect  the  merger  of  the 
original  lease  might  have,  whenever  the  lease  of 
B  came  to  an  end  either  by  surrender,  forfeiture, 
or  otherwise,  the  original  lessor  would  have  the 
same  rights  to  light  as  the  mortgagee  would 
have  had  if  the  original  lease  had  subsisted. 
Itvssell  v.  Watts,  10  App.  Gas.  590  ;  55  L.  J.,  Oh. 
158  ;  53  L.  T.  876  ;  34  W.  R.  277  ;  50  J.  P.  68— 
H.  L.  (E.). 

Sale  of  Plots  of  Land,]— Semble,  by  the 

Earl  of  Belborne,  that  if  on  a  sale  and  convey- 


ance of  land  adjoining  a  house  to  be  built  by 
the  vendor,  it  is  mutually  agreed  that  one  of  the 
outer  walls  of  that  house  may  stand  wholly  or 
partly  within  the  verge  of  the  land  sold,  and 
shall  have  in  it  particular  windows  opening  upon 
and  overlooking  the  land  sold,  and  if  the  house 
is  erected  accordingly,  the  purchaser  cannot 
afterwards  build  upon  the  land  sold,  so  ss  to 
prevent  or  obstruct  the  access  of  light  to  those 
windows,    lb. 

Part  Performance— Parol  AgwementJ— The 
plaintiff  and  defendant,  the  owners  of  adjoining 
nouses,  being  about  to  rebuild,  entered  into  i 
verbal  agreement  that  the  plaintiff  should  poll 
down  a  party-wall  and  rebuild  it  lower  and 
thinner,  and  that  each  party  should  be  at  liberty 
to  make  a  lean-to  skylight  with  the  lower  end 
resting  on  the  party-walL  The  plaintiff  rebuilt 
the  party-wall  and  erected  a  lean-to  skylight  on 
his  side*  of  it  as  agreed ;  the  defendant  also 
erected  a  skylight  on  his  side,  but  instead  of  s 
lean-to,  so  shaped  it  as  to  obstruct  the  access  of 
light  to  the  plaintiffs  premises  more  than  the 
agreed  lean-to  skylight  would  have  done:— 
Held,  that  the  effect  of  the  agreement  was  to 
give  to  each  party  an  easement  of  light  over  the 
other's  land  ;  and  that  the  plaintiff,  having  per- 
formed the  agreement  on  his  part,  was  entitled 
to  have  it  enforced  on  the  part  of  the  defendant 
MoManus  v.  Cooke,  85  Oh.  D.  681  ;  56  L.  J.,Cb, 
662  ;  66  L.  T.  900  ;  35  W.  B.  754  ;  51  J.  P.  708 
— Kay,  J. 

Implied  Grant— Vendor— Equitable  Owner.] 
— The  owner  (subject  to  a  mortgage  in  fee)  of  a 
house  and  a  plot  of  land  adjoining,  first  leased 
the  house,  then  contracted  to  sell  the  land  to  the 
defendant,  and  afterwards  contracted  to  sell  the 
house  subject  to  the  lease  to  a  person  under 
whom  the  plaintiff  claimed.  The  next  step  was 
a  conveyance  of  the  house  by  the  owner  and  his 
mortgagee  to  the  plaintiff  subject  to  the  lease, 
which  was  followed  by  a  conveyance  (also  by 
the  owner  and  his  mortgagee)  of  the  land  to  the 
defendant.  The  plaintiff  subsequently  recovered 
possession  of  the  house  from  the  lessee  for  breach 
of  condition  : — Held,  that  no  grant  of  light  to 
the  house  could  be  implied  over  land  which  the 
owner  had  contracted  to  sell  before  the  sale  or 
conveyance  of  the  house,  and  that  s.  6,  sub-s.  % 
of  the  Conveyancing  Act,  1881,  did  not  apply. 
Beddington  v.  Atlee,  85  Oh.  D.  817  ;  56  L  J., 
Oh.  665  ;  56  L.  T.  614  ;  86  W.  R.  709 ;  51  J.  P. 
484— Chitty,  J. 

Derogation     from     Grant  —  Building 

8oheme — Intention  to  bo  Implied.] — The  maxim 
that  a  grantor  shall  not  derogate  does  not 
entitle  a  grantee  of  a  house  to  claim  an  ease- 
ment of  light  to  an  extent  inconsistent  with  the 
intention  to  be  implied  from  the  circumstances 
existing  at  the  time  of  the  grant  and  known  to 
the  grantee.  Birmingham  Banking  Comp**9 
v.  Ross,  38  Ch.  D.295  ;  57  L.  J.,  Ch.  601  ;59l*T. 
609 ;  36  W.  R.  914—0.  A.  Affirming  5*  J.  P. 
421— Kekewich,  J. 

The  corporation  of  a  town  granted  a  lease  to 
the  plaintiffs  of  a  piece  of  land  and  a  newly 
erected  building  "  with  the  rights,  members,  and 
appurtenants  to  the  said  premises  belonging." 
The  building  abutted  on  a  passage  twenty  feet 
wide,  which  the  corporation  agreed  to  keep  open, 
and  on  the  other  side  of  the  passage  were  old 


677 


EASEMENTS    AND    PRESCRIPTION 


678 


holdings  about  twenty-five  feet  high.    The  cor- 
poration demised  the  land  on  the  other  side  of 
the  passage  to  the  defendant,  who  erected  on  the 
ate  of  the  old  buildings  a  house  eighty  feet 
high,  which   materially    interfered    with    the 
plaintiffs'  light.    The  land  on  both  sides  of  the 
passage  was  part  of  a  larger  piece  of  land  laid 
out  by  the  corporation  under  a  building  scheme 
for  the  improvement  of  the  town  : — Held,  that 
there  was  no  grant,  express  or  implied,  in  the 
lease  to  the  plaintiffs  of  a  right  to  uninterrupted 
light  to  the  new  building  ;  that  the  obligation 
on  the  corporation  not  to  obstruct  the  plaintiffs' 
light  which  was  to  be  implied  from  the  relation 
in  which  they  had  placed    themselves  to  the 
plaintiffs  by  granting  them  the  lease,  must  be 
measured  by  the  circumstances  existing  at  the 
date  of  the  lease  and  known  to  both  parties ; 
that  having  regard  to  the  fact  that  the  plaintiffs 
knew  that  the  land  was  being  laid  out  for  build- 
ing, and  that  they  had  stipulated  that  there 
ihonld  be  a  passage  twenty  feet  wide  adjoining 
the  new  building,  they  had  no  right  to  complain 
of  the  obstruction  caused  by  the  defendant's 
house,  and  an  injunction  was  refused.    lb. 

The  rule,  that  a  man  who  grants  a  house  with 
lights  cannot  erect  new  buildings  so  as  to  ob- 
*trnct  those  lights,  applies  to  the  case  where  the 
grantor  purposely  leaves  a  strip  of  land  inter- 
Tening  between  the  house  and  the  lands  retained. 
lb. 

Fmcription  Act— Beservation  of  Sight  to 
Ohttraet— "Agreement  or  Consent. 'J — A  land- 
owner granted  a  lease  to  the  plaintiff  of  a  house 
and  land  with  their  appurtenances,  except 
rights,  if  any,  restricting  the  free  use  of  any 
adjoining  land,  or  the  appropriation  at  any  time 
thereafter  of  any  such  land  for  building  or  other 
purposes,  obstructive  or  otherwise.  More  than 
twenty  years  after  this  lease  the  subsequent 
teaee  of  an  adjoining  piece  of  land  under  the 
suae  landowner  commenced  to  build  on  it  in 
*nch  a  way  as  to  obstruct  the  plaintiff's  light. 
The  plaintiff  having  brought  an  action  and 
mored  for  an  injunction : — Held,  that  the  ex- 
ception of  any  right  restricting  the  free  use  of 
the  adjoining  land  did  not  operate  as  an  agree- 
ment or  consent  on  the  part  of  the  lessee  that 
the  owners  of  the  adjoining  land  might  always 
hare  a  right  to  obstruct  the  access  of  light  to 
the  plaintiffs  house  within  the  exception  in  the 
Sid  section  of  the  Prescription  Act,  and,  there- 
fore, that  the  plaintiff  had  acquired  an  absolute 
prescriptive  right  to  the  light  and  was  entitled 
to  an  injunction.  Mitchell  v.  Cantrill,  37  Ch. 
D.56;  67  L.  J.,  Ch.  72  ;  58  L.  T.  29  :  36  W.  R. 
*»-C.  A 


User— Windows   with    Shutters   occa- 

■oaally  opened-"  Actually  enjoyed."}— The 
right  to  access  of  light  is  acquired  under  s.  3  of 
tae  Prescription  Act  for  an  opening  used  in  such 
a  Banner  as  suits  the  owner's  convenience  for 
the  Passage  of  light.  Therefore,  in  the  case  of 
vunovs    with    movable   shutters,    which   are 

red  only  occasionally  at  the  owner's  pleasure, 
right  is  being  "actually  enjoyed  under 
l  3,  and  there  is  no  such  interruption  of  access 
at  will  under  s.  4  prevent  the  right  being  ac- 
ssiied  at  the  end  of  the  statutory  period. 
toper  ▼.  Straker,  40  Ch.  D.  21 ;  58  L.  J.,  Ch. 
* ;  W I*  T.  849  ;  37  W.  B.  137— Kay,  J. 


"  Other  Building  " — Dwelling-house   or 

Workshop.]— The  words  "  other  building"  used 
in  the  Prescription  Act  (2  &  3  Will.  4,  c.  71), 
s.  3,  in  connexion  with  any  "dwelling-house, 
workshop — "  mean  some  building  of  a  like 
character  with  a  dwelling-house  or  workshop, 
and  will  not  necessarily  include  every  structure 
which  may  be  a  building  for  the  purposes  of  the 
Metropolitan  Building  Acts.  Accordingly,  a 
permanent  structure  used  for  storing  and  season- 
;  iug  timber  and  showing  it  to  customers,  which 
consisted  of  upright  baulks  of  timber  or  standards 
fixed  in  stone  bases  built  on  brick  piers,  with 
cross-beams  and  diagonal  iron  braces,  divided 
into  floors  or  stagings  with  open  unglazed  ends 
or  apertures  between  the  uprights,  and  which 
served  for  drying  the  timber  and  also  for 
admitting  light,  is  not  a  "building"  within  s.  3, 
so  as  by  twenty  years'  uninterrupted  enjoyment 
of  the  access  and  use  of  light  to  and  for  the 
apertures,  to  have  acquired  an  absolute  and 
indefeasible  right  thereto.  Ilarri*  v.  Be  Pinna, 
33  Ch.  D.  238  ;  54  L.  T.  38 ;  50  J.  P.  308— 
Chitty,  J. 


Uninterrupted  Access— Definite  Channel.] 


— In  order  to  acquire  an  absolute  and  indefeasible 
,  right  to  light  under  8.  3,  it  must  be  shown  not 
only  that  there  has  been  an  uninterrupted  access 
of  light  to  the  building  in  respect  of  which  the 
easement  is  claimed,  but  also  that  the  light  has 
reached  the  building  by  one  and  the  same  channel 
for  the  statutory  period.  Without  therefore 
deciding  whether  the  particular  structure  was  a 
"  building  "  within  the  Prescription  Act,  8.  3  : — 
Held,  that  as  from  the  nature  of  the  structure 
and  the  mode  of  carrying  on  business,  timber 
would  be  so  piled  as  from  time  to  time  to  block 
up  one  or  other  of  the  apertures  so  that  the 
plaintiffs  could  not  prove  that  there  had  been  an 
uninterrupted  access  of  light  by  any  one  aperture 
for  the  statutory  period,  their  claim  to  an  ease- 
ment failed.  HarrU  v.  Be  Pinna,  33  Ch.  D.  238 ; 
56  L.  J.,  Ch.  344 ;  54  L.  T.  770  ;  50  J.  P.  486— C.  A. 


Aooess  of  Air— Acquirement — Unity  of 


Possession.  ] — A  right  by  way  of  easement  to  the 
uninterrupted  access  of  air  not  coming  by  any 
definite  channel  but  over  the  general  unlimited 
surface  of  the  alleged  servient  tenement  cannot 
be  acquired  under  the  Prescription  Act,  s.  2,  by 
mere  enjoyment  for  the  statutory  period ;  and 
the  fact  that  the  alleged  dominant  and  servient 
tenements  were  both  held  under  a  common 
lessor,  either  of  itself,  or  at  any  rate  when 
coupled  with  the  fact  that  the  lease  of  the 
servient  tenement  was  the  earlier,  negatives  any 
claim  to  the  easement  as  arising  out  of  implied 
covenant.    lb. 


Cone    of  Light.]— The    right    acquired 


under  the  Prescription  Act,  s.  3,  is  a  right  to  the 
access  and  use  of  the  whole  or  a  substantial  part 
of  the  particular  cone  of  light  which  has  passed 
for  the  statutory  period  over  the  servient  to  the 
dominant  tenement  Scott  v.  Pape,  31  Ch.  D. 
554  ;  55  L.  J.,  Ch.  426  ;  54  L,  T.  899  j  34  W.  B. 
465  ;  50  J.  P.  645— C.  A. 


"  Accom  "  —  "  The  Bight  thereto."]  — 


The  word  "access"  in  section  3  of  the  Pre- 
scription Act  refers  not  to  the  access  through 
the   aperture  of   the  dominant  tenement  but 

z  2 


679 


EASEMENTS    AND    PRESCRIPTION 


680 


to  the  freedom  of  passage  over  the  servient 
tenement,  although  the  aperture  which  admits 
the  light  into  the  dominant  tenement  defines  the 
area  which  is  to  be  kept  free  over  the  servient 
tenement.  "  The  right  thereto  "  means  the  right 
to  the  same  access  and  use  of  light  to  and  for 
any  building.    lb. — Per  Fry,  L.  J. 

Alteration  in  Dominant  Tenement — Plane 

of  Windows— Proof  of  Identity.]— The  Prescrip- 
tion Act  does  not  require  any  identity,  structural 
or  otherwise,  in  the  building,  which  after  the 
twenty  years  is  to  enjoy  the  right,  with  the 
building  which  has  acquired  the  right ;  but  the 
right,  although  not  in  gross,  but  one  which  must 
be  claimed  in  respect  of  a  building,  may  be 
claimed  in  respect  of  any  building  which  is 
enjoying  the  whole  or  a  substantial  part  of  the 
light  which  passed  into  the  dominant  tenement 
through  the  old  aperture.  Consequently,  no 
alteration  in  the  plane  of  the  windows  of 
the  dominant  tenement,  either  by  advancing 
or  setting  back  the  building,  will  destroy 
the  right  so  long  as  the  owner  of  the 
dominant  tenement  can  show  that  he  is  using 
through  the  new  apertures  in  the  wall  of  the 
new  building  the  same,  or  a  substantial  part  of 
the  same,  light  which  passed  through  tne  old 
apertures  into  the  old  building.  Bat  the  right 
to  relief  may  be  lost  even  where  there  is  no  sub- 
stantial alteration  if  the  owner  of  the  dominant 
tenement  has  by  his  alteration  so  confused  the 
evidence  that  he  cannot  prove  the  identity  of 
the  light    lb. 

S.,  in  1872,  pulled  down  a  building  in  the  east 
wall  of  which  were  ancient  lights,  and  erected 
on  the  site  a  new  building  with  larger  and  more 
numerous  windows.  No  record  was  preserved  of 
the  positions  or  dimensions  of  the  ancient  lights, 
but  it  was  found  as  a  fact  that  substantial  por- 
tions of  six  of  the  new  windows  corresponded 
with  three  of  the  ancient  lights.  The  east  wail 
had  been  advanced  by  distances  varying  from 
2  ft.  3  in.  to  13  in.,  the  effect  of  which  was 
slightly  to  alter  the  plane  of  the  new  windows : — 
Held,  that  the  alteration  made  by  S.  did  not 
amount  to  an  abandonment  of  his  right,  and 
that  the  plaintiff  was  entitled  to  an  injunction 
to  restrain  any  obstruction  of  so  much  of  the 
six  new  windows  as  corresponded  with  the  three 
ancient  lights,    lb. 

The  mere  alteration  of  a  building  containing 
ancient  lights  without  evidence  of  intention 
to  abandon  does  not  imply  an  abandonment 
of  the  statutory  right,  under  the  Prescription 
Act,  2  &  3  Will.  4,  c.  71,  to  the  access  and  use  of 
light  to  and  for  any  building  which  may  be 
substituted  for  the  original  building ;  the  inten- 
tion to  abandon  the  right  must  be  clearly 
established  by  evidence.  The  nature  of  the 
statutory  right  to  the  access  of  light  discussed. 
Scott  v.  Pope  (31  Ch.  D.  554),  considered. 
Greenwood  v.  Hornsey,  33  Ch.  D.  471 ;  55  L.  J., 
Ch.  917  ;  55  L.  T.  135 ;  35  W.  R.  163— V.-C.  B. 

In  rebuilding  a  house,  which  had  an  ancient 
light  in  its  ground  floor  front-room,  the  front 
wall,  which  originally  stood  out  beyond  the 
general  building  line  4  feet  at  one  end  and  7 
Feet  at  the  other,  was  set  back  into  the  general 
building  line ;  and  in  the  new  front  wall  was 
placed  a  window  the  position  of  which  corre- 
sponded to  a  great  extent  with  the  position  of 
the  ancient  light  in  the  old  front  wall.  The  new 
room  was  about  the  same  frontage  breadth  as  the 


old,  but  included  little  more  than  half  the  site 
of  it,  viz.,  a  depth  of  9  feet  at  one  end,  and  less 
than  4  feet  at  the  other  : — Held,  that  the  right  to 
the  ancient  light  had  not  been  lost.  BtUleri  t. 
Dickinson,  29  Ch.  D.  155  ;  54  L.  J.,  Ch.  776 ;  52 
L.  T.  400 ;  33  W.  R.  540— Kay,  J. 

Interim  Injunction— Balance  of  Convenience.] 
— The  plaintiffs  being  the  owners  of  an  ancient 
building  which  had  numerous  windows,  pulled  it 
down  and  rebuilt  it.    A  few  of  the  windows  in 
the  new  house  included  the  space  occupied  bj 
ancient  windows,  but  were  of  larger  dimensions ; 
several  others  included  some  portion  of  the  space 
occupied  by  ancient  windows  ;  and  in  some  cases 
the  spaces  occupied  by  ancient  windows  were 
entirely  built  up  in  the  new  house.    The  defen- 
dants commenced  to  build  a  house  on  the  oppo- 
site side  of    the    street,  which    if   completed 
according  to  the  plana,  would  materially  inter- 
fere with  the  light  coming  to  the  plaintiffs 
windows.    On  a  motion  for  an  interim  injunc- 
tion the  court,  holding  that  the  plaintiffs  had 
shown  an  intention  to    preserve,  and  not  to 
abandon,  their  ancient  lights,  and  that  there 
was  a  fair  question  of  right  to  be  tried  at  the 
hearing,  and  considering  that  the  balance  of 
convenience  was  in  favour  of  granting  an  in* 
junction  rather  than  of  allowing  the  defendants 
to  complete  their  building  with  an  undertaking 
to  pull  it  down  if  required  to  do  so,  granted  an 
injunction  till  the  hearing.    Newton  v.  Pender, 
27  Ch.  D.  43  ;  52  L.  T.  9  ;  33  W.  R.  243— C.  A 

Injunction  or  Damages— Discretion  of  Court 
—Lord  Cairns'  Act.] — In  exercising  the  discre- 
tion given  by  s.  2  of  Lord  Cairns'  Act,  to  award 
damages  in  substitution  for  an  injunction,  in 
the  case  of  a  substantial  interference  with  a 
plaintiffs  ancient  lights,  the  court  will  not, 
when  the  result  of  the  defendant's  buildings 
would  be,  if  they  were  allowed  to  continue,  to 
render  the  plaintiff's  property  absolutely  useless 
to  him,  compel  the  plaintiff  to  sell  his  property 
out  and  out  to  the  defendant.  But,  if  the  in- 
jury to  the  plaintiff  will  be  less  serious,  and  his 
property  will  remain  substantially  useful  to  him, 
if  the  defendant's  buildings  are  permitted  to 
continue,  the  court  may  exercise  its  discretion 
by  awarding  the  plaintiff  damages  in  lieu  of  an 
injunction,  and  for  the  purpose  of  exercising  that 
discretion  the  court  will  take  into  consideration 
the  nature  and  situation  of  the  property,  e.g., 
the  circumstance  that  it  is  situate  in  the  centre 
of  a  large,  city,  such  as  London.  AynHcy  v. 
Qlover  (18  L.  R.,  Bq.  544),  Krehl  v.  BurrtU  (7 
Ch.  D.  551),  and  Smith  v.  Smith  (20  L.  R^Bq. 
500),  considered.  Holland  v.  WorUty,  26  Ch.  D. 
578  ;  54  L.  J.,  Ch.  268  ;  50  L.  T.  526  ;  32  W.  R. 
749  ;  49  J.  P.  7— Pearson,  J. 

The  discretion  given  to  the  court  by  s.  3  of 
Lord  Cairns*  Act  (21  &  22  Vict.  c.  27),  to  award 
damages  in  substitution  for  an  injunction  in  the 
case  of  a  substantial  interference  with  a  plain- 
tiff's ancient  lights,  is  a  discretion  to  be  exercised 
according  to  the  facts  of  each  particular  case. 
Where  the  plaintiff  has,  at  the  trial,  established 
his  statutory  right  as  against  a  defendant  who  has 
erected  a  building  causing  a  substantial  inter- 
ference with  that  right,  the  court  will  not  com- 
pel him  to  accept  damages  or  compensation 
instead  of  an  injunction,  especially  where  the 
defendant  has,  during  the  progress  of  the  action, 


681 


EASEMENTS    AND    PRESCRIPTION 


682 


given  an  undertaking  to  pull  down,  if  so  ordered 
at  the  trial.  Holland  v.  Worley  (26  Ch.  D.  678) 
not  followed.     Greenwood  v.  Ilornsey,  supra. 


111.    WATERCOURSES. 

Abstraction  of  Water  by  Hon-riparian  Owner 
— Ahmet  of  Damage— Bight  of  Action.  J— The 
owner  of  laud  not  abutting  on  a  river,  with  the 
licence  of  a  riparian  owner,  took  water  from  the 
river,  and  after  using  it  for  cooling  certain  ap- 
paratus returned  it  to  the  river  unpolluted  and 
undiminished: — Held,  that  a  lower  riparian 
owner  could  not  obtain  an  injunction  against 
the  landowner  so  taking  the  water,  or  against 
the  riparian  owner  through  whose  land  it  was 
taken.  Kenrtt  v.  Great  Eastern  Railway,  27 
Oh.  D.  122 ;  64  L.  J.,  Ch.  19  ;  61  L.  T.  862  ;  32 
W.R.886— C.  A. 

Artificial  Stream— Sights  of  Riparian  Owner.] 
—Observations'  on  the  rights  which  can  be 
acquired  by  a  riparian  owner  in  an  artificial 
stream.    lb. 


of,  in  Lease — Non-intarfer- 
«■»  by  Lessor — Unity  of  Possession — Severance 
— Implied  Grant.]  —  Lands,  on  which  were 
certain  dams  and  artificial  watercourses  leading 
therefrom,  and  which  were  held  under  leases 
containing  reservations  of  all  mills,  mill-seats, 
dama,  dam-seats,  water,  and  watercourses,  and 
all  convenient  ways  to  and  from  the  same,  were 
ordered  to  be  sold  in  an  administration  suit. 
They  were  accordingly  put  up  for  sale  by  auction 
in  foor  lots,  the  particulars  and  conditions  of 
sale,  which  set  oat  the  reservations  in  detail, 
•tating  that  each  lot  would  be  sold  subject  to  all 
rights  and  easements  legally  existing.  The  sale 
by  auction  proved  abortive.  The  plaintiff  sub- 
sequently tendered  for  lot  4.  His  offer  was 
accepted,  and  this  lot  was  conveyed  to  him, 
"  excepting  and  reserving  all  such  matters  and 
things  as  are  excepted  and  reserved  in  and  by 
the  said  recited  indenture  of  lease,"  aud  also 
subject  to  all  such  rights  and  easements  as  then 
existed  or  affected  the  premises.  After  the 
acceptance  of  the  plaintiff's  offer,  and  before  the 
«ttveyance  to  him,  H.  made  a  tender  for  lot  3, 
*hich  was  accepted  ;  and  this  lot  was  by  deed, 
tabseqaent  to  the  plaintiff's  conveyance,  assigned 
t*>  him,  with  similar  exceptions,  reservations,  &c. 
H.  assigned  his  interests  to  the  defendants, 
frwr  to,  and  at  the  time  of,  the  plaintiff's 
proposal  and  conveyance,  some  of  the  artificial 
watercourses  flowed  from  lot  3  to  lot  4,  and  the 
iter  thereof  was  utilised  for  certain  purposes 
<*  th»  lot.  The  lessor  had  never  interfered  or 
^pressed  any  intention  of  interfering  with  the 
plaintifFs  user  or  enjoyment  of  these  water- 
courses. The  defendants  obstructed  the  water 
^ng  therein :— Held,  that  the  plaintiff  was 
entitled  to  a  declaration,  as  between  him  and 
ti*  defendants,  of  a  right  to  the  usual  and 
*ccQ«u>med  flow  of  water,  and  to  an  injunction 
to  restrain  the  defendants  from  obstructing  the 
*■*-  Mere  possession  of  rights,  corporeal  or 
tDcorporeaL  is  sufficient  to  maintain  an  action 
for  disturbance  of  them  against  a  wrongdoer. 
™*«  v.  Hough  fort  Bleaching  Company ',  21 
L.  R..  lr.  7J— V.  C. 

Prescription  —  Landlord   and   Tenant — 


Enjoyment  ai  of  Right]  —  The  defendants  in 
1834  demised  to  the  plaintiffs  the  coal  under  the 
C.  estate  for  fifty  years,  with  powers  to  sink  pits, 
make  soughs,  &c,  erect  engines,  and  make  drains, 
<fcc,  for  supplying  such  engines  with  water,  and 
also  to  do  certain  other  acts  on  the  surface  for 
the  better  draining  and  working  the  demised 
mines  and  any  other  mines  of  which  the  plain- 
tiffs might  become  lessees  under  the  lands  of 
any  other  persons.  In  1836  the  plaintiffs  took 
a  lease  for  thirty-five  years  of  the  0.  Colliery 
from  a  neighbouring  landowner.  In  1846  the 
plaintiffs  made  a  drain  about  a  mile  long, 
chiefly  on  the  C.  estate,  by  which  they  diverted 
a  small  natural  stream  on  the  C.  estate,  and 
brought  it  down  to  the  0.  colliery,  where  they 
made  reservoirs  for  the  water  at  considerable 
expense.  They  did  not  ask  leave  to  make  the 
drain,  but  the  defendants'  agent  saw  the  work 
going  on  and  encouraged  it.  In  1872  the  plain- 
tiffs became  owners  in  fee  of  the  0.  colliery.  In 
1884,  when  the  lease  from  the  defendants  ex- 
pired, the  defendants  stopped  the  drain  and 
diverted  the  water.  The  plaintiffs,  claiming  a 
right  by  prescription  to  the  water,  commenced 
this  action  to  restrain  them  from  doing  so.  The 
Vice-Chancellor  of  the  County  Palatine  held 
that  the  watercourse  was  made  under  the  powers 
of  the  lease,  and  that  the  right  to  the  water 
expired  at  the  end  of  the  lease,  and  he  dismissed 
the  action  : — Held,  on  appeal,  that  this  dismissal 
was  right,  for  that  if  the  making  this  drain  was 
not  authorised  by  the  lease  (as  to  which  the 
court  gave  no  opinion)  it  was  made  and  enjoyed, 
either  under  the  belief  of  both  parties  that  it 
was  authorized  by  the  lease,  or  under  a  comity 
between  landlord  and  tenant,  and  that  there 
was  no  enjoyment  as  of  right  so  as  to  give  the 
tenant  a  right  to  the  water  after  the  lease  had 
expired.  Chamber  Colliery  Company  v.  Hop- 
wood,  32  Ch.  D.  549  ;  55  L.  J.,Ch.  859  ;  55  L.  T. 
449  ;  51  J.  P.  164— C.  A. 

Subterranean  Water  —  Eiparian  Bights — 
"Denned"  and  "known"  Channel.]  —  Sub- 
terranean waters  can  only  be  the  subject  of 
riparian  rights  when  flowing  in  defined  and 
known  channels.  "  Defined  "  means  a  contracted 
and  bounded  channel,  although  the  course  of  the 
stream  may  be  undefined  by  human  knowledge. 
•'  Known  "  means  the  knowledge,  by  reasonable 
inference,  from  existing  and  observed  facts  in 
the  natural  or  pre-existing  condition  of  the  sur- 
face of  the  ground.  "  Known  "  in  this  rule  of 
law,  is  not  synonymous  with  "  visible,"  nor  is  it 
restricted  to  knowledge  derived  from  exposure 
of  the  channel  by  excavation.  Black  v.  Bally- 
mena  Commissioner*,  17  L.  R.,  Ir.  459 — V.-C. 

Prescription — User  not  precarious.] — In  the 
year  1820  the  Court  of  Landdrost  granted  leave 
to  the  ancestor  in  title  of  the  respondent  to 
divert  the  course  of  certain  springs  rising  in 
Crown  lands  from  their  natural  course  into  one 
constructed  to  carry  the  water  to  the  respon- 
dent's land,  and  such  water  was  so  carried  and 
used  up  to  the  year  1855,  when  the  respondent 
applied  to  the  Government  to  renew  such  leave. 
In  the  year  1881  the  Government  granted  the 
sole  user  of  these  springs  to  the  appellants  :— 
Held,  that  as  the  user  was  not  in  its  inception 
precarious,  the  respondent  had  acquired  a  pre- 
scriptive title  to  the  use  of  the  wa'.er  by  such 
user  for  the  third  of  a  century,  and  that  such 


683 


EASEMENTS    AND    PRESCRIPTION, 


684 


title  was  not  affected  by  the  application  in  1855 
to  renew  the  leave  to  use  the  water.  French 
Hock  Commusurner*  v.  Hvgo,  10  A  pp.  Cas.  336  ; 
64  L.  J.,  P.  C.  17  ;  54  L.  T.  92  ;  34  W.  R.  18— P.  C. 


Enjoyment  as  of  Bight.  \—See  Chamber 


Colliery  Co.  v.  I  fop  wood,  supra. 

Bight  to  Pollute— Prescription— Variation  of 

If ■».]— From  1832  to  1877  the  refuse  of  a  fell- 
mongery,  and  the  washings  of  dyes  used  in  a 
coloured  rug  manufactory,  had  been  discharged 
into  a  watercourse,  which  was  an  arterial  drain- 
age work  within  the  jurisdiction  of  drainage 
commissioners.  In  1878  the  fellmongery  was 
abandoned,  and  the  manufacture  of  leather 
boards  substituted  at  the  same  factory.  The 
pollution  caused  by  the  discharge  of  the  refuse 
of  the  leather  board  manufactory  was  less  in 
degree  than  that  caused  by  the  fellmongery. 
The  drainage  commissioners  convicted  the 
owners  of  the  leather  board  factory  under  a 
section  of  a  local  act  of  polluting  the  stream, 
and  this  conviction  was  affirmed  on  appeal  to 
the  Quarter  Sessions: — Held,  that  the  conviction 
must  be  confirmed,  for  even  if  the  factory- 
owners  had  a  prescriptive  right  to  foul  the 
stream,  it  was  as  fellmongers,  and  not  as  leather 
board  manufacturers ;  and  that  there  was  no 
authority  for  holding  that  the  variation  of  the 
user,  although  it  cast  no  increased,  but  even  a 
less  burden  on  the  servient  tenement,  enabled 
the  factory-owners  to  substitute  a  business  of  a 
totally  different  kind  to  that  originally  carried 
on  by  them,  and  at  the  same  time  claim  to 
maintain  their  original  prescriptive  right  to 
pollute  the  watercourse,  even  if  such  right  did 
exist.  ClarJtn  v.  Somertrtthire  Drainage  Com- 
mtirioner^  57  L.  J.,  M.  C.  96  ;  59  L.  T.  670  ;  36 
W.  R.  890— D. 

Aggravation  of  Servitude— Accumulation  of 
Water.]— By  s.  501  of  the  Civil  Code  of  Quebec 
the  proprietor  of  the  higher  land  can  do  nothing 
to  aggravate  the  servitude  of  the  lower  land. 
Where  the  plaintiffs,  being  entitled  to  a  flow  of 
water  from  their  land,  executed  certain  works 
which  had  the  effect  of  accumulating  the  volume 
of  water,  and  probably  of  increasing  the  depth 
of  its  channel : — Held,  that  to  the  extent  of 
such  accumulation  and  consequent  increase  of 
flow,  they  had  aggravated  the  servitude  of  the 
lower  land,  and  to  that  extent  had  no  right  to 
demand  a  free  course  for  the  water  sent  down 
by  them.  Having  insisted  on  their  right  to  the 
existing  flow,  and  refused  to  allege  and  prove 
a  case  for  relief  pro  tanto,  their  suit  was  dis- 
missed with  costs.  Frechette  v.  La  Compagnie 
Manufacturiere  de  St.  Hyacinthe,  9  App.  Cas. 
170  ;  53  L.  J.,  P.  C.  20 ;  60  L.  T.  62— P.  C. 

Pipes  — Repair— Interference  with,  by  Ser- 
vient Owner.  ] — The  owners  of  a  house  had  had 
for  many  years  a  supply  of  water  by  pipes 
passing  through  the  adjoining  land  under  cir- 
cumstances which  in  the  view  of  the  court 
created  an  easement  The  owner  of  part  of  the 
adjoining  land  proceeded  to  build  a  house  over 
part  of  the  line  of  pipes : — Held,  that  the  owners 
of  the  house  had  a  right  to  go  on  the  adjoining 
land  and  repair  the  pipes  when  necessary,  and 
that  by  building  the  house  their  means  of  access 
to  the  pipes  would  be  materially  interfered  with 
and  rendered  more  expensive ;  and  an  injunc- 


tion was  granted  to  rest  rain  the  building  of  the 
house.  Goodhart  v.  Ifyett,  25  Ch.  D.  182 ;  6S 
L.  J.,  Ch.  219  ;  50  L.  T.  95  ;  32  W.  R.  165 ;  4* 
J.  P.  293— North,  J. 

An  agreement  had  been  entered  into  by  D. 
and  the  plaintiffs  not  to  erect  buildings  so  as  to 
prevent  reasonable  access  to  a  sewer  under  the 
management  of  the  latter.  The  defendant  holding 
under  D.  built  a  stable  on  his  land  so  as  to  delay 
the  plaintiffs'  access  to  the  sewer  for  an  hour 
or  so  longer  than  theretofore  : — Held,  not  to  be  a 
sufficient  ground  for  a  mandatory  injunction  to 
pull  down  the  stable.  Sandgate  Local  Board  v. 
Leney,  25  Ch.  D.  183,  n. — Den  man,  J. 


IV.    RIGHT   OF  SUPPORT. 

Lateral  support  of  House  by  Soil  and  Building 
not  Contiguous.] — A.,  B.,  and  C  were  the  owners 
of  three  consecutively  adjoining  houses  in  a 
street ;  B.'s  house  intervened  between  those  of 
A.  and  C.  A/s  premises  were  destroyed  by  fire 
and  rebuilt  After  rebuilding,  B.'s  side  wall 
separated  from  C.'s  premises,  the  adjacent  wall 
in  which  became  cracked.  In  an  action  by  C. 
against  A.  for  damages,  evidence  of  architects 
was  given  to  show  that  the  crack  was  caused  by 
the  settling  down  of  A.'s  new  building  on  soft 
clay,  and  drawing  over  with  it  B.'s  premises ; 
and  on  the  other  hand  architects  were  produced 
on  behalf  of  A.,  who  proved  that  the  rebuilding 
was  properly  executed,  and  attributed  the 
separation  to  an  old  settlement  increasing 
gradually.  The  jury,  upon  the  question  being 
submitted  to  them,  found  that  A.  was  guilty  of 
negligence  ;  but  the  learned  judge  at  the  trial 
directed  a  verdict  for  A.,  being  of  opinion  that 
there  was  no  evidence  of  negligence : — Held, 
that  as  the  evidence  showed  that  the  injury  was 
caused  by  the  rebuilding  of  A.'s  premises,  C. 
was  entitled  to  maintain  the  action,  even  assum- 
ing the  rebuilding  to  have  been  performed  with 
due  skill.  The  principle  of  Dal  ton  v.  Angns  (6 
App.  Cas.  740)  applied  ;  Solomon  v.  Vf  ntneri 
Company  (4  H.  &  N.  585)  distinguished. 
Latimer  v.  Official  Co-operative  Society,  16  L. 
R.,  Ir.  305— C.  P.  D. 

Adjoining  Owners  deriving  under  Gonna* 
Grantor — Implied  Covenant — Injury  fbllowiif 
from  Acta  of  Third  Party.]— The  plaintiffs  and 
the  defendants  were  adjoining  ownere  of  land. 
The  plaintiffs  derived  under  a  grant,  made  for 
building  purposes,  more  than  twenty  years, 
prior  to  the  injuries  complained  o£  The 
grantors  were  the  predecessors  in  title  of  the 
defendants.  Subsequently  to  the  date  of  the 
grant,  and  after  the  building  of  a  house  by  the 
plaintiffs  on  their  land,  a  railway  cutting 
was  made  near  the  locality;  but  it  did  not 
appear  that  any  injury  was*  thereby  caused  to 
the  plaintiffs'  house.  The  defendants  having, 
however,  piled  large  quantities  of  stones  on 
their  lands,  immediately  adjoining  the  plaintiffs' 
house,  cracks  appeared  in  the  walls  of  the  latter, 
and  the  plaintiffs  brought  an  action  to  recover 
damages  caused  by  the  deprivation  of  the  right 
of  support.  The  judge  at  the  trial  left  to  the 
jury  only  the  questions  : — Whether  the  plaintinV 
house  had  been  supported  by  the  defendants' 
land  for  more  than  twenty  years  f  and,  Whether 
the  injuries  complained  of  had  resulted  from  the 
deprivation  of  such  support?  and  his  lordship 


686 


ECCLESIASTICAL    LAW. 


686 


declined  to  submit  to  the  jury  other  questions 
which  the  defendants'  counsel  required  to  be  left 
to  them,  viz.  : — (1)  Were  the  plaintiffs'  houses 
and  their  foundations  constructed  with  reason- 
able skill  and  care,  having  regard  to  the  nature 
of  the  soil,  and  other  surrounding  circumstances  ? 
(2)  Were  due  and  reasonable  precautions  taken 
by  the  plaintiffs  and  their  predecessors  in  title 
to  protect  and  maintain  the  houses,  having  re- 
gard to  the  construction  and  existence  of  the 
railway?  (3)  Were  the  injuries  complained  of, 
or  any  of  them,  attributable  to  the  want  of  such 
due  and  reasonable  precautions  ?  (4)  Was  the 
piling  of  the  stones  on  the  defendants1  land  a 
reasonable  use  thereof,  under  all  the  surrounding 
circiunstances  ?     (5)    Were  the   injuries   com- 
plained of  caused  wholly  by  the  placing  of  the 
ctones  on  the  defendants'  land  ?  The  jury  having 
fraud  for  the  plaintiffs,  and  assessed  damages : — 
Held,  that  the  plaintiffs  were  entitled  to  retain 
the  verdict,  and  that  their  right  to  support, 
whether  acquired  by  grant  or  prescription,  was 
not  in  any  way  affected  by  the  alteration  of 
chcunstances  caused  by  the  making   of   the 
nulwiy  catting.      Green  v.  Belfast  Tramways 
Company,  20  L.  R.,  Ir.  36—  Q.  B.  D.      Affirmed 
in  C.  A. 

Working  Xinoi — Ineloture  Act] — See  Bell  v. 
Lne,  post,  Mikes  and  Minerals. 


—  Enjoyment  preeario  —  Deed 
Tvwniittent  with  Enjoyment  aa  of  Bight.] — 
On  the  1st  of  January,  1855,  T.,  a  builder, 
agreed  to  purchase  from  S.  a  plot  of  land, 
part  of  an  estate  then  being  laid  out  for  build- 
tag,  bounded,  according  to  the  construction 
pat  on  the  agreement  by  the  court,  by  a  plot  of 
land  intended  to  be  made  into  a  back  street, 
which  T.  agreed  to  pave.  About  the  same  time 
8.  employed  T.  to  build  a  wall  upon  the  other 
ade  of  the  intended  street,  standing,  as  the  court 
held,  on  the  property  of  S.  Between  1854  and 
1856,  while  the  building  scheme  was  still  intended 
to  be  carried  out,  T.  built  a  range  of  workshops 
apon  the  site  of  the  intended  street,  having  a 
gable  resting  upon  the  wall.  In  1861  8.  con- 
veyed a  property  on  the  other  side  of  the  wall 
from  the  intended  street  to  the  defendant's  pre- 
decessors in  title.  In  1864  8.  executed  to  T.a 
conveyance  of  his  piece  of  land  according  to  the 
agreement,  whereby  T.  covenanted  to  pave  the 
intended  street.  In  1877  S.  agreed  to  convey  to 
1  the  site  of  the  intended  street.  This  agree- 
ment contained  recitals  of  the  intention  to  make 
the  street  and  of  the  conveyance  of  1864,  and  was 
Bade  subject  to  any  rights  of  way  existing 
therein.  In  1881  the  defendant,  who  had  pur- 
chased the  land  on  the  other  side  of  the  wall, 
patted  down  part  of  the  wall,  thus  destroying 
the  plain  tiflTs  shed.  The  shed  had  stood  upon 
the  site  of  the  intended  street  ever  since  its  first 
election.  The  plaintiff  brought  this  action  for 
damages  on  the  ground  that  he  had  acquired  an 
casement  to  rest  his  shed  on  the  wall : — Held, 
that  the  covenant  in  the  deed  of  1864,  and  the 
Ratals  m  that  of  1877,  amounted  to  an  acknow- 
ledgment by  the  defendant  that  up  to  1877  he 
might  at  any  time  have  been  compelled  to  pull 
down  his  shed,  and  was  inconsistent  with  an 
enjoyment  as  of  right  of  an  easement  of  support 
tor  it  from  the  walL  Time  v.  Preston,  24  Ch.  D. 
*»;  53  L.  J.,  Ch.  50  ;  39  L.  T.  99  ;  32  W.  R. 
1*— Denman,  J. 


V.    IN  OTHER  CASES. 

Breaking  up  Highways  —  Presumption  of 
Grant  —  Prescription.] — The  corporation  of  P., 
who  had  no  parliamentary  powers  for  the  purpose, 
supplied  water  to  the  adjoining  urban  district 
of  F.,  and  claimed  the  right  to  enter  upon  and 
break  up  the  streets  of  F.  whenever  occasion 
should  require  for  the  purpose  of  repairing 
their  water-pipes,  relying,  as  regarded  some 
of  the  streets,  on  alleged  irrevocable  licences 
granted  by  the  predecessors  of  the  local 
board  of  P.  (i.e.,  the  surveyors  of  highways), 
and  as  regarded  other  streets  on  prescription  : — 
Held,  (1)  that  the  claim  of  the  corporation  was 
to  commit  a  nuisance  ;  (2)  that  it  was  not  in  the 
power  of  the  surveyors  of  highways  to  grant 
the  alleged  licences;  (3)  that,  therefore,  as  a 
grant  could  not  be  presumed,  the  corporation 
could  not  obtain  the  right  claimed  by  prescrip- 
tion. Preston  (Mayor)  v.  Fulwood  Local  Board, 
53  L.  T.  718  ;  34  W.  R.  196 ;  50  J.  P.  228— 
North,  J. 

Bight  of  Fishing.]— &*  Fish. 


ECCLESIASTICAL   LAW. 

I.  Convocation,  686. 
II.  Bishops  and  Clbbot,  687. 

III.  Presentation  to  and  Resignation 

of  Benefices,  688. 

IV.  Advowson,  692. 
V.  Glebe,  692. 

VI.  Chubch,  693. 
VIL  Dilapidations,  693. 
VIII.  Sequestration  of  Livings,  693. 
IX.  Chubchwabdens,  693. 
X.  Vestby,  694. 

XI.  Chubch  and  Reotob's  Bates,  695. 
XII.  Chapels,  696. 

XIII.  BUBIAL  AND  BUBIAL  BOARDS,  697. 

XIV.  Tithes  and  theib  Commutation,  700. 

L  CONVOCATION. 

Archbishop  ai  President— Election  of  Proctor.] 

—The  Archbishop  of  York  as  president  of  the 
convocation  of  his  province  having  decided  that 
a  candidate  who  had  been  elected  to  represent 
an  archdeaconry  in  the  Lower  House  was  dis- 
qualified : — Held,  that  the  court  had  no  juris- 
diction to  grant  a  mandamus  commanding  the 
archbishop  to  admit  the  candidate  to  convocation. 


687 


ECCLESIASTICAL    LAW. 


688 


Reg.  v.  York  {ArehbisJum),  20  Q.  B.  D.  740 ; 
57  L.  J.,  Q.  B.  396 ;  69  L.  T.  443  ;  36  W.  R.  718 ; 
62  J.  P.  709— D. 


II.  BISHOPS  AND  CLERGY. 

Jurisdiction  of  Archbishop  to  eite  Bishop — 
Appeal.] — The  Archbishop  has  jurisdiction  to 
cite  a  Bishop  in  respect  of  ecclesiastical  offences, 
and  an  appeal  lies  to  Her  Majesty  in  Council 
from  his  refusal  to  exercise  such  jurisdiction. 
Mead,  Ex  parte,  13  P.  D.  221 ;  58  L.  J.,  P.  C.  32  ; 
59  L.  T.  909— P.  C. 

Disobedience  of  Order  of  Suspension— Period 
of  Suspension,  Issue  of  Writ  de  Contumaee 
Capiendo  after — Satisfaction.] — The  power  to 
issue  a  writ  de  contumaee  capiendo  under  53 
Geo.  3,  c.  127,  for  disobedience  of  an  order  of 
the  Ecclesiastical  Court,  is  not  confined  to  cases 
where  obedience  to  the  order  remains  possible. 
A  clerk  in  orders  having  disobeyed  a  monition 
issued  in  a  suit  instituted  against  him  in  the 
Ecclesiastical  Court  under  the  Church  Discipline 
Act,  1840,  a  suspension  was  published  and  served 
upon  him  whereby  he  was  suspended  from  his 
clerical  office  for  a  period  of  six  months.  During 
such  period  he  officiated  in  his  church,  notwith- 
standing the  suspension,  and .  a  significavit  in 
respect  of  such  disobedience  issued  against  him. 
After  the  expiration  of  the  six  months,  a  writ 
de  contumaee  capiendo  was  issued  against  him 
under  53  Geo.  3.  c.  127,  s.  1,  upon  which  he  was 
arrested: — Held,  that  the  writ  was  lawfully 
issued.  Cox,  Ex  parte,  20  Q.  B.  D.  1  ;  57  L.  J.. 
Q.  B.  98  ;  58  L.  T.  323  ;  36  W.  R.  209  ;  52  J.  P. 
484— C.  A. 

Writ  de  Contumaee  Capiendo— Form.]— The 
writ  de  contumaee  capiendo  was  improperly 
indorsed  "  The  Public  Worship  Regulation  Act, 
1874"  : — Held,  that  this  irregularity  did  not 
render  the  imprisonment  illegal.  Dean  v.  Green 
(8  P.  D.  79)  followed.  Cox,  Ex  parte,  19 
Q.  B.  D.  307  ;  56  L.  J.,  Q.  B.  532— D. 

Churoh  Discipline  Act — Rules  of  Court — Place 
of  Hearing.] — The  judge  of  the  Chancery  Court 
of  York  has  power  under  the  Church  Discipline 
Act  to  make  a  rule  that  the  hearing  of  cases  in 
that  court  shall  take  place  without  the  local 
limits  of  the  court.  The  Chancery  Court  of 
York  has  jurisdiction  to  hear  a  suit  against  a 
clergyman  beneficed  in  the  province  of  York,  in 
respect  of  offences  alleged  to  have  been  com- 
mitted by  him  without  tbe  limits  of  the  province. 
Noble  v.  Ahier,  11  P.  D.  158 — Chancery  Court 
of  York. 

Letters  of  Bequest  —  Criminal  Offence.]  — 
Letters  of  request  were  presented  to  the  official 
principal  of  the  Chancery  Court  of  York,  re- 
questing that  a  clerk  might  be  cited  before  him 
to  answer  a  charge  that  he  had  been  guilty  of  a 
criminal  offence,  viz.,  of  sodomy : — Held,  that 
the  letters  ought  not  to  be  accepted,  for  a  charge 
of  so  grave  a  character  ought  not  to  be  investi- 
gated by  an  ecclesiastical  court,  until  the  person 
.^barged  had  been  tried  and  convicted  by  a 
.criminal  court  of  competent  jurisdiction.  A.  B., 
Jn,  re,  11  P.  D.  56— Chancery  Court  of  York. 

• 

.  Criminal  Suit — Particulars.] — In  a  criminal 


suit  containing  charges  of  misconduct  against  a 
clerk  in  holy  orders,  an  order  was  made  after 
the  close  of  the  pleadings  that  the  promoter 
should  give  particulars  of  the  charges.  Such 
particulars  should  as  a  rule  be  applied  for  on 
the  admission  of  articles.  Salisbury  {Bishop) 
v.  Ottley,  10  P.  D.  20— Arches. 

Curate— Stipend— Differences  as  to— Applica- 
tion to  Stay  Action.]— The  83rd  section  of  1  &  2 
Vict.  c.  106,  provides  that  differences  between 
the  incumbent  of  a  benefice  and  his  curate 
touching  the  curate's  stipend  shall  be  decided 
summarily  by  the  bishop  of  the  diocese  on  com- 
plaint to  him  made.  The  defendant  agreed  to 
employ  the  plaintiff  as  his  curate  at  an  annual 
stipend  of  1 10Z.,  besides  board  and  lodging  in 
the  vicarage  house.  These  terms  were  set  out 
in  the  nomination  of  the  curate  to  the  bishop, 
Differences  having  arisen  relative  to  the  board 
and  lodging,  the  plaintiff  brought  an  action  in 
the  High  Court  against  the  defendant  to  recover 
damages  in  lieu  of  board  and  lodging : — Held, 
upon  the  defendant's  motion  to  stay,  that  the 
action  would  lie,  and  that  the  High  Court  had 
jurisdiction  to  try  it,  since  it  was  neither  within 
the  language  nor  spirit  of  the  above  enactment 
that  the  bishop  should  be  constituted  a  judge 
without  a  jury  to  assess  damages,  or  that'  the 
plaintiff  should  be  deprived  of  the  ordinary 
means  of  recovering  them.  Prater  v.  Denuen, 
57  L.  J.,  Q.  B.  550  ;  52  J.  P.  678— D. 

Kotioe  to  quit  Cure.] — A  notice  by  an 


incumbent  to  a  curate  to  quit  his  curacy,  given 
under  1  &  2  Vict.  c.  106,  s.  95,  is  not  a  notice 
within  or  subject  to  the  regulations  prescribed 
by  &  112  of  the  same  statute.  Tanner  v. 
Scrivener,  13  P.  D.  128— Consistory  Court  of 
London. 


III.  PRESENTATION  TO  AND  RESIGNA- 
TION OF  BENEFICES. 

Mortgage  of  Advowson— Who  entitled  to 
Nominate.] — The  vicarage  of  P.  formerly  con- 
sisted of  two  medieties,  known  respectively  as 
the  upper  vicarage  and  the  lower  vicarage, 
the  profits  and  spiritual  charge  being  divided 
between  two  incumbents.  There  was  only  one 
parish  church,  and  the  right  of  patronage  and 
nomination  to  the  upper  vicarage  was  vested  in 
the  Lord  Chancellor,  and  that  of  the  lower  in 
the  Rev.  H.  F.  Welch.  In  1873,  Welch  pre- 
sented himself  to  the  lower  vicarage.  In  1875, 
he  mortgaged  the  advowaon  thereof  (with  a 
power  of  sale)  to  Howes  for  800*.,  and  in  1877 
made  a  farther  charge  upon  it  in  favour  of 
Howes  for  250Z.  In  1878,  the  Lord  Chancellor, 
under  26  &  27  Vict.  c.  120,  conveyed  to  Welch 
the  advowson  of  the  upper  vicarage,  subject  to 
the  then  existing  incumbency.  There  was  a 
proviso  in  the  act  restricting  the  purchaser  from 
selling  the  advowson  or  next  presentation  until 
after  the  expiration  of  five  years  from  tbe  date 
of  the  purchase.  In  May,  1879,  the  incumbencj 
of  the  lower  vicarage  having  become  vacant,  tbe 
two  vicarages  were  under  3  &  4  Vict.  c.  118  and 
an  order  in  council  consolidated,  and  the  two 
medieties  became  in  respect  both  of  the  profits 
and  the  spiritual  charge  one  undivided  benefice, 
of  which  Welch  without  any  form  of  institution 
became  the  incumbent,  in  whom  was  vested  the 


689 


ECCLESIASTICAL    LAW. 


690 


advowson  or  right  of  patronage  and  nomination 
of  the  whole  undivided  benefice.  On  the  1st  of 
August,  1879,  Welch  mortgaged  the  advowson  of 
the  consolidated  benefice  to  Howes  to  secure 
the  previous  and  farther  advances,  with  the 
ami  power  of  sale.  In  March,  1882,  Howes 
died,  leaving  a  widow,  and  having  by  his  will 
devised  and  bequeathed  hiB  residuary  real  and 
personal  estate  to  trustees,  in  trust  for  his  wife 
for  life,  &C,  In  March.  1883,  the  executors  of 
Howes  contracted  to  sell  the  advowson  of  the 
undivided  benefice  to  hie  widow,  and  she,  in 
April,  1883,  contracted  to  sell  the  same  to  one 
Ellison.  In  June,  1883.  Welch  died  insolvent 
(the  debt  to  Howes  still  remaining  unpaid), 
having  by  his  will  devised  and  bequeathed  all 
his  real  and  personal  estate  to  trustees  in  trust 
for  his  widow  (the  now  plaintiff),  for  life,  &c. 
The  plaintiff  and  the  executors  of  Howes  each 
claimed  the  right  to  present  to  the  undivided 
vicarage: — Held,  upon  the  authority  of  Haw- 
hint  v.  Cham/el  (1  Atk.  621)  and  Briggs  v. 
Sharp  (20  L.  R.,  Eq.  317),  that  the  right  to 
nominate  was  in  the  plaintiff,  she  being  under 
her  husband's  will  beneficial  owner  for  life  of 
his  estate  real  and  personal,  and  there  being  no 
indication  of  an  intention  that  during  her  life 
the  right  to  nominate  should  be  exercised  by 
any  other  person.  Welch  v.  Peterborough 
(Bi*koj>),  15  Q.  B.  D.  432  ;  1  C.  &  B.  534— 
Mathew,  J. 

Serosal  of  Bishop  to  Institute — Grounds  of 
lanisal] — A  bishop  refused  to  institute  a  clerk 
in  holy  orders  to  a  benefice  on  the  grounds  that 
he  had,  whilst  acting  as  curate  to  a  former 
holder  of  the  benefice,  habitually  committed 
offences  against  ecclesiastical  law  and  failed  to 
observe  the  book  of  common  prayer,  by  wearing 
nnJawful  vestments  and  doing  unlawful  acts  in 
respect  of  matters  of  ritual  when  officiating  in 
.the  communion  service ;  and  that  he  declined 
to  undertake  not  to  repeat  the  offences  in  the 
future.  In  an  action  against  the  bishop  in  which 
the  patron  claimed  a  declaration  that  he  was 
entitled  to  have  the  clerk  instituted : — Held, 
that  the  defendant  had  acted  within  bis  discre- 
tion in  refusing  to  institute  the  clerk  upon  the 
grounds  stated,  and  was  therefore  entitled  to 
judgment.  Hrywooil  v.  Manchester  (Bishop). 
12  Q.  B.  D.  404  ;  53  L.  J.,  Q.  B.  196  ;  50  L.  T. 
236 ;  32  W.  R.  567— Pollock,  B. 

By  U  2  Vict.  c.  106,  s.  104,  within  certain 
dioceses  "it  shall  and  may  be  lawful  for  the 
bishop,  if  he  shall  think  fit,  to  refuse  insti- 
tution or  licence  to  any  spiritual  person  who, 
After  due  examination  and  inquiry,  shall  be 
found  unable  to  preach,  administer  the  sacra- 
Dents,  perform  other  pastoral  duties,  and  con- 
verse in  the  Welsh  language.1' — The  patron  of  a 
benefice  in  one  of  such  dioceses  presented  a 
clergyman  who  could  not  speak  Welsh.  The 
bishop  thereupon  commissioned  certain  persons 
to  hold  an  inquiry  as  to  whether  the  parish  re- 
quired a  pastor  who  should  know  Welsh.  The 
persons  so  commissioned  held  the  inquiry  and 
reported  to  the  bishop,  but  refused  to  permit  the 
patron  or  the  clergyman  to  be  present  or  to  be 
^presented  or  produce  evidence  at  the  inquiry. 
The  bishop,  on  receiving  the  report,  refused  to 
Admit  or  institute  the  clergyman.  In  an  action 
by  the  patron  against  the  bishop  in  respect  of 
*ch  refusal : — Held,  that  "  due  examination 
and  inquiry  "  meant  examination  and  inquiry  as 


to  the  clergyman's  knowledge  of  the  Welsh  lan- 
guage, not  as  to  the  requirements  of  the  parish, 
that  the  statute  gave  an  absolute  discretion  to 
the  bishop  as  to  the  mode  of  ascertaining  the 
requirements  of  the  parish,  that  he  was  not 
bound  to  hold  a  formal  inquiry  of  a  judicial 
character  for  that  purpose,  and  therefore  the 
refusal  to  hear  the  patron  or  the  clergyman  did 
not  invalidate  the  inquiry  which  was  held,  and 
the  bishop  was  justified  in  refusing  to  admit  or 
institute  the  clergyman.  Abergavenny  (Mar- 
quis) v.  Llandaff  (Bishop),  20  Q.  B.  D.  460  ;  57 
L.  J.,  Q.  B.  238  ;  68  L.  T.  812  ;  36  W.  R.  859— 
Huddleston,  B. 

Resignation — Validity.]— It  is  not  essential  to 
the  validity  of  a  deed  of  resignation  of  an 
ecclesiastical  benefice  that  it  should  be  made  by 
the  clerk  before  a  notary  public  ;  the  bishop 
can  dispense  with  that  formality  and  accept  a 
resignation  made  by  a  deed  duly  executed,  and 
sent  to  him  by  the  clerk.  The  resignation  of  a 
benefice  is  not  void  because  it  is  made  at  the 
request  of  the  bishop  in  order  to  avoid  scandal 
and  legal  proceedings,  lteichel  v.  Oxford 
(Bishop),  35  Ch.  D.  48  ;  56  L.  J.,  Ch.  1023  ;  56 
L.  T.  539 ;  36  W.  R.  307— C.  A.  Anlrmed  14 
App.  Cas.  259— H.  L.  (E.) 

Acceptance  of  Resignation — Condition — Pecu- 
niary Consideration.] — It  is  not  necessary  that 
the  bishop's  acceptance  of  a  resignation  should 
be  in  writing,  and  no  particular  fonn  is  neces- 
sary ;  and  if  the  resignation  is  sent  in  at  the 
bishop's  request  no  further  acceptance  is  re- 
quired. Though  the  resignation  of  a  benefice 
must  (except  in  the  case  of  an  exchange)  be 
absolute,  not  conditional,  it  is  perfectly  legal 
for  the  bishop  to  fix  a  future  time  at  which  the 
resignation,  when  accepted  by  him,  shall  come 
into  actual  operation  by  his  declaring  the  bene- 
fice vacant.  If  the  bishop,  in  accepting  the 
resignation  of  a  benefice,  agrees  to  postpone  the 
declaration  of  the  vacancy  in  order  to  enable 
the  clerk  to  receive  the  next  accruing  payment 
of  tithe  rent-charge,  this  does  not  render  the 
resignation  invalid  as  having  been  made  for  a 
pecuniary  consideration.    lb. 

Revocation  of  Resignation  before  Acceptance.] 

— A  clerk  who  has  tendered  his  resignation  to 
the  bishop  cannot  withdraw  it,  even  before 
acceptance,  if,  in  consequence  of  the  tender,  the 
position  of  any  party  has  been  altered :  e.g.,  if 
the  bishop  has  been  thereby  induced  to  abstain 
from  commencing  proceedings  in  the  Eccle- 
siastical Court  foT  the  deprivation  of  the  clerk. 
Ib.—Vcr  North,  J. 

Compensation  to  retiring  Inoumbent — Union 
of  Benefioes— Charge  whether  Alienable.]— In 
pursuance  of  an  order  in  council  under  the 
Union  of  Benefices  Act,  1860,  uniting  two  city 
benefices,  certain  annuities  were  granted  to  the 
retiring  incumbent  and  his  assigns,  out  of  the 
annual  income  of  the  united  benefice,  and  made 
a  first  charge  thereon  during  the  joint  lives  of 
himself  and  the  incumbent  of  the  united  bene- 
fice, so  long  as  he  should  perform  in  person,  or 
by  substitute  to  be  approved  of  by  the  bishop, 
the  duties  of  curate  of  the  united  benefice  under 
the  style  of  vicar  in  charge,  with  a  provision  for 
the  retiring  incumbent  after  the  death  of  the 
incumbent  of  the  united  benefice  : — Held,  that 


^ 


691 


ECCLESIASTICAL   LAW. 


693 


such  annuities  were  not  a  benefice  with  cure 
within  13  Eliz.  c.  20,  and  accordingly  could  be 
validly  mortgaged  by  the  retiring  incumbent. 
McBean,  v.  Dcane,  30  Ch.  D.  520  ;  55  L.  J.,  Ch. 
19  ;  53  L.  T.  701  ;  33  W.  R.  924— Chitty,  J. 

Pension  to  Retiring  Incumbent — "  Net  Annual 
Value  "  of  Benefice.]— By  s.  8  of  the  Incumbents' 
Resignation  Act,  1871  (34  k  35  Vict.  c.  44),  it  is 
provided  that  the  pension  which  may  be  allowed 
to  a  retiring  incumbent  shall  in  no  case  exceed 
one-third  part  of  "the  annual  value  of  the 
benefice  resigned*' ;  and  by  s.  11  the  annual 
value  for  the  purposes  of  the  Act  is  defined  to 
be  the  net  "  annual  value  ''  after  making  certain 
deductions  therein  specified : — Held,  that  the 
amount  of  the  retiring  pension  is  to  be  fixed 
with  reference  to  the  net  annual  value  of  the 
benefice  at  the  date  of  the  incumbent's  resigna- 
tion ;  and  that,  having  been  once  fixed,  it  is  not 
liable  to  subsequent  alteration  in  consequence 
of  a  diminution  in  the  net  annual  value  of 
the  benefice  through  agricultural  depression  or 
through  the  formation  of  a  part  of  the  parish 
into  a  district  chapelry.  Robinson  v.  Dand,  17 
Q.  B.  D.  341  ;  55  L.  J.,  Q.  B.  585  ;  54  L.  T.  871  ; 
34  W.  R.  639— D. 

Privity  between  Inoumbent  and  Patron  — 
Estoppel.] — An  incumbent  who  comes  into  a 
benefice  is  a  privy  in  law  to  the  patron  who 
appointed  him,  so  as  to  be  entitled  to  the  benefit, 
and  subject  to  the  burden,  of  the  same  estoppel 
as  the  patron.  R.,  the  incumbent  of  a  living, 
sent  in  his  resignation  of  the  benefice  to  the 
bishop,  on  the  understanding  that  the  resigna- 
tion was  not  to  be  formally  accepted,  nor  the 
benefice  declared  vacant,  until  a  date  agreed 
upon  between  himself  and  the  bishop.  Before 
that  date  arrived  R.  withdrew  his  resignation, 
but  the  bishop  refused  to  accept  the  withdrawal, 
and  at  the  time  agreed  upon  declared  the  bene- 
fice vacant,  after  which  the  patrons  appointed 
another  incumbent,  who  was  duly  instituted  and 
inducted  into  the  benefice.  R.  brought  an  action 
against  the  bishop  to  have  his  resignation  de- 
clared null  and  void.  To  this  action  ihe  patrons 
of  the  living  were  parties,  and  the  sole  question 
was  whether  the  resignation  was  effectual,  and 
it  was  decided  against  R.  that  the  resignation 
was  effectual  and  complete.  R.  refused  to  give 
np  the  parsonage-house  and  glebe  lands,  and  in 
an  action  brought  against  him  by  the  new  in- 
cumbent, for  an  injunction  to  restrain  him  from 
continuing  in  wrongful  possession  of  the  premises 
and  for  trespass,  R.  set  up  substantially  the 
same  defence  as  in  the  former  action,  namely, 
that  his  resignation  was  not  effectual : — Held, 
that,  as  the  question  of  the  effectuality  of  the 
resignation  was  raised  and  disposed  of  in  the 
former  action,  to  which  the  patrons  were  parties, 
and  as  R.  would  have  been  estopped  from 
raising  that  question  again  in  any  proceedings 
between  himself  and  the  patrons,  he  was  also 
estopped  from  raising  the  same  question  as  a 
defence  against  the  incumbent,  who,  as  being  a 
privy  in  law  to  the  patrons,  was  entitled  to  take 
advantage  of  the  same  estoppel,  and  that  such 
defence  should  be  struck  out  as  frivolous  and 
vexatious.  Mag  rath  v.  Reirhel,  57  L.  T.  850 — 
D, 


IV.  ADVOWSON. 


Passing  by  Deed — Oonetruetion.]—  An  adrow- 
son,  although  it  is  an  hereditament,  and  as  being 
the  right  of  presentation  to  a  church  at  a  par- 
ticular place,  "  does  concern  land  at  a  certain 
place,"  is  but  a  right  collateral  to  land,  and  is 
not  aptly  described  as  "  being  situate  at "  a  par- 
ticular place.  Such  a  description, however,  may 
pass  an  advowson  under  certain  circumstances, 
e.g.,  when  upon  an  examination  of  the  whole 
instrument  a  clear  intention  is  6hown  that  it 
shall  pass,  or  upon  evidence  that  there  is  no 
other  property  in  that  particular  place  capable 
of  being  disposed  of  by  the  instrument.  Anon. 
(3  Dyer,  323,  b)  and  Kensey  v.  Laniham  (Cas.  t 
Tal.  143)  discussed  and  reconciled.  Oromptv* 
v.  Jarrett,  30  Ch.  D.  298  ;  54  L.  J..  Ch.  1109; 
53  L.  T.  603  ;  33  W.  R.  913— C.  A. 

G.  J.,  tenant  in  tail  in  possession  of  manors, 
lands,  and  hereditaments,  devised  by  the  will  of 
J.  J.,  and  also  of  the  advowson  of  Christ 
Church,  Doncaster,  appointed  to  somewhat  similar 
uses  by  a  separate  devise  in  the  same  will,  by  a 
deed  which  recited  only  the  devise  of  the  manon, 
&c,  disentailed  and  limited  to  the  use  of  himself 
in  fee,  "  all  and  singular  the  manors,  lands,  here- 
ditaments, and  premises  devised  by  the  said  will, 
and  also  all  other  the  lands,  hereditaments,  and 
premises  whatsoever,  of  which  he  was  seised  as 
tenant  in  tail  in  possession  in  anywise  howso- 
ever." By  a  deed  of  resettlement  executed  the 
next  day,  after  reciting  that  he  was  seised  of 
"the  several  manors  and  hereditaments  com- 
prised in  the  schedule  subject  to  certain  charges," 
and  desired  to  settle  "the  same  hereditaments,9 
he  assured  to  trustees  in  Btrict  settlement,  "  all 
and  singular  the  manors,  messuages,  farms,  lands, 
and  hereditaments  comprised  and  described  in 
the  schedule,"  "  and  all  other  the  freehold  here- 
ditaments of  him  the  said  G.  J.  situate  in  the 
parish  of  Doncaster."  The  schedule  contained  a 
detailed  description  of  the  parcels,  but  neither  in 
it  nor  the  deed  itself  was  there  any  reference  to 
or  any  provision  applicable  to  the  advowson. 
G.  J.  had  property  other  than  the  advowson  in 
the  parish  of  D.,  and  the  advowson  was  not 
subject  to  any  charges.  It  was  admitted  that 
some  portions  of  the  disentailed  property  had 
been  intentionally  omitted  from  the  resettle- 
ment :— Held,  that  having  regard  to  the  recitals, 
the  omission  of  parts  of  the  property,  and  look- 
ing to  the  whole  scope  of  the  deed,  the  advow- 
son was  not  by  force  of  the  general  words  "all 
other  hereditaments  situate  in  the  parish  of  D.," 
included  in  the  deed  of  resettlement.     lb. 

When  "Charity  Property."]— See  Charity, 
III. 

Mortgage  of— Bight   of  Presentation.]— See 
Welch  v.  Peterborough  (Buhvp),  ante,  cot  689. 


V.    GLEBE. 

Mortgage  by  Vicar— Foreclosure — Parties.]— 

A  vicar  is  a  person  having  a  limited  interest 
within  the  meaning  of  s.  3  of  the  Landowners 
West  of  England  and  South  Wales  Land 
Drainage  and  Inclosure  Companies  Act,  and 
may  charge  his  glebe  land  thereunder.  To  a 
foreclosure  action  under  such  a  mortgage  the 


«» 


688 


ECCLESIASTICAL    LAW. 


694 


nitron  of  the  living  is  not  a  necessary  party. 
Gttiien  v.  Cola,  59  L.  T.  309  ;  36  W.  R.  828— 
aekewich,  J. 

VI.    CHURCH. 

Oaaeel  Gates.  J— A  faculty  for  chancel  gates 
vu  granted,  it  being  shown  that  the  chancel, 
from  its  richness,  required  protection.  St. 
Agnes,  In  re,  11  P.  D.  1 —Consistory  Court, 
Liverpool- 

Onamudon  Table  in  8ide  Chapel.]— The  court, 
on  the  ground  of  convenience  and  saving  of 
expense,  decreed  a  faculty  for  the  erection  of  a 
communion  table  in  a  side  chapel  of  a  church  in 
which  there  was  already  a  communion  table. 
fW*  Trinity  Chvrch,  Stroud  Green,  In  re,  12 
P.  D.  199 ;  36  W.  R.  288— Consistory  Court  of 
London. 

Bequests  tor  Erection  of,  kc.]See  Charity, 
1.2. 

VII.     DILAPIDATIONS. 

Nairn  by  succeeding,  against  Estate  of  de- 
emed, Incumbent—  Payment  pari  passu.] — 
Where  the  bishop  has,  under  b.  34  of  the  Eccle- 
siastical Dilapidations  Act,  1871,  made  an  order 
stating  the  cost  of  the  repairs  for  which  the 
executors  of  a  late  incumbent  are  liable,  the 
mm  so  stated  is  under  s.  36  a  debt  payable  to 
the  new  incumbent  out  of  the  assets  of  the  late 
incumbent  pari  passu  with  the  debts  of  his 
other  creditors.  Monk,  In  re,  Wayman  v.  Monk, 
85  Ch.  D.  583  ;  56  L.  J.,  Ch.  809  ;  56  L.  T.  856  ; 
35  W.R.691  ;  52  J.  P.  198— Stirling,  J. 

Bepeirs  done  by  Sequestrator — Disallowanoe.] 
—A*  next  case. 

VIII.    SEQUESTRATION  OF  LIVINGS. 

DOapidationj — Repairs  done  by  Sequestrator 
—Accounts,  Objection  to.]— A  benefice  having 
been  sequestrated  under  a  writ  of  sequestration 
in  an  action,  an  inspection  of  the  glebe 
buildings  by  the  diocesan  surveyor  was  directed 
by  the  bishop,  and  a  report  made  by  such  sur- 
Teyor  under  the  Ecclesiastical  Dilapidations 
Act,  1871.  The  report  estimated  the  cost  of  the 
necessary  repairs  to  the  buildings  at  140Z.,  and 
no  objections  were  taken  to  such  report  under 
1 16  of  the  act.  The  sequestrator,  being  sub- 
sequently of  opinion  that  the  repairs  provided 
for  by  the  surveyor's  report  were  inadequate, 
expended  on  the  repairs  of  the  buildings  a 
orach  larger  sum  than  140/.  No  inspection  or 
report,  except  as  before  mentioned,  was  ordered 
W  the  bishop  or  made  by  the  surveyor  : — 
Held,  that  the  sequestrator  had  no  authority 
to  expend  on  repairs  out  of  the  proceeds  of 
the  benefice  a  larger  sum  than  that  estimated 
•s  necessary  by  the  surveyor's  report  under  the 
Ecclesiastical  Dilapidations  Act,  1871,  and  that 
toco  expenditure  must  be  disallowed.  Kim- 
her  v.  Paravieini,  15  Q.  B.  D.  222  ;  54  L.  J., 
Q.  B.  471  ;  53  L.  T.  299 ;  33  W.  R.  907— D. 


IX.     CHURCHWARDENS. 

nectioB — Bsfosal  to  pat  Amendment.  ]— At 
a  meeting  of  the  vestry  to  elect  churchwardens, 


D.  was  proposed  to  be  re-elected,  when  par- 
ishioners moved  an  amendment  that  before 
electing  a  churchwarden  a  certain  correspon- 
dence between  the  Charity  Commissioners  and 
the  churchwardens  as  to  some  parish  charity 
fund  should  be  produced.  The  vicar  refused  to 
put  the  amendment,  and  declared  D.  duly 
elected  : — Held,  on  a  rule  for  a  mandamus,  that 
the  vicar  was  wrong  in  refusing  to  put  the 
amendment,  and  that  he  was  wrong  in  not 
putting  to  the  meeting  whether  D.  should  be 
elected.  Reg.  v.  Hagbourne  ( Vicar),  51  J.  P. 
276— D. 

Authority  of— Free  Seats— Distribution  of]— 
Churchwardens  of  a  church  with  free  seats  have 
authority  to  direct,  for  the  maintenance  of 
order  and  decorum,  in  which  of  those  seats 
certain  classes  of  the  congregation  may  and 
others  may  not  sit.  A  person  may  be  convicted 
by  justices,  under  23  &  24  Vict.  c.  32,  s.  2,  of 
violent  behaviour  in  a  church,  although  such 
behaviour  was  in  assertion  of  a  bona  fide  claim 
of  right.  Asher  v.  Caleraft,  18  Q.  B.  D.  607  ; 
56  L.  J.,  M.  C.  57  ;  56  L.  T.  490  ;  35  W.  R.  651 ; 
51  J.  P.  598— D. 


To  prevent  Inhabitant  from  attending 


Service.] — There  is  no  right  on  the  part  of  a 
churchwarden  forcibly  to  prevent  an  inhabitant 
of  a  parish  or  district  from  entering  the  church 
for  the  purpose  of  attending  service,  even 
though  the  churchwarden  may  be  of  opinion 
that  he  cannot  be  conveniently  accommodated. 
The  statute  of  5  &  6  Edw.  6,  c.  1,  8.  2,  having 
imposed  a  general  duty  to  go  to  church,  which 
still  is  binding  upon  members  of  the  church  of 
England,  has  conferred  a  correlative  general 
right  to  go  to  church  on  those  who  are  so 
obliged  to  go.  The  temporal  courts  have  juris- 
diction over  an  action  against  a  churchwarden 
for  forcibly  preventing  an  inhabitant  from 
entering  the  church  for  the  purpose  of  at- 
tending divine  service.  Taylor  v.  Timion,  20 
Q.  B.  D.  671 ;  67  L.  J.,  Q.  B.  216  ;  52  J.  P.  135 
— D. 

X.     VESTRY. 

Member — Qualification— Assessment  to  Poor 
Bate— Penalty.]— By  18  k  19  Vict.  c.  120 
(Metropolis  Local  Management  Act,  1855),  s.  6, 
"  the  vestry  elected  under  this  act  in  any  parish 
shall  consist  of  persons  rated  or  assessed  to  the 
relief  of  the  poor  upon  a  rental  of  not  less  than 
40/.  per  annum ;  and  no  person  shall  be  capable 
of  acting  or  being  elected  as  one  of  such  vestry 
for  any  parish,  unless  he  be  the  occupier  of  a 
house,  lands,  tenements,  or  hereditaments  in 
such  parish,  and  be  rated  or  assessed  as  afore- 
said upon  such  rental  as  aforesaid  within  such 
parish  : — Held,  that  to  be  qualified  as  a  vestry- 
man under  the  act,  a  person  must  be  the  occupier 
of  real  property  in  the  parish,  and  be  himself 
rated  or  assessed  in  respect  of  such  occupation 
to  the  required  amount.  Mogg  v.  Clark,  16 
Q.  B.  D.  79 ;  55  L.  J.,  Q.  B.  69  ;  53  L.  T.  890  ; 
34  W.  R.  66  ;  50  J.  P.  342— C.  A. 

Meeting  to  Elect  Churchwardens.]—^  Reg. 
v.  Hagbimrne  (  Vicar),  supra. 

Superannuation  Allowance  to  Officer — Discre- 
tion as  to  Amount.] — A   metropolitan  vestry 


695 


ECCLESIASTICAL    LAW. 


696 


has  a  discretion  under  29  Vict.  c.  31,  s.  1,  to 
grant  or  to  refuse  a  superannuation  allowance 
to  a  retiring  officer ;  but,  if  an  allowance  be 
granted,  the  vestry  has  no  discretion  as  to  the 
amount,  which  must  be  in  accordance  with  the 
scale  prescribed  in  s.  4.  Reg.  v.  St.  Georges 
Vestry,  19  Q.  B.  D.  533  :  56  L.  J.,  Q.  B.  652  ;  35 
W.  R.  841  ;  52  J.  P.  6— D. 


XL  CHURCH  AND  RECTOR'S  RATES. 

Church  Bate — Application  of— In  considera- 
tion of  Extinguished  Tithes.]— The  hamlet  of 
Bethnal  Green  was  made  a  separate  parish  bv 
16  Geo.  2,  c.  28.  By  s.  35  of  that  act  all 
garden  pennies  and  small  tithes  arising  within 
the  hamlet  were  made  payable  to  the  church- 
wardens of  the  new  parish  to  be  applied  for  the 
maintenance  and  support  of  the  rector  "and 
such  other  uses  as  were  thereby  directed."  In 
no  part  of  the  act  was  there  any  direction  as  to 
the  purposes  for  which  so  much  of  the  garden 
pennies  and  small  tithes  as  were  not  paid  to  the 
rector  were  to  be  applied,  but  by  s.  25  the  rector, 
churchwardens,  and  overseers,  &c,  were  to  be 
vestrymen,  and  were  to  meet  from  time  to  time, 
and  appoint  a  lecturer,  churchwardens,  sidesmen, 
parish  clerk,  and  other  officers  for  the  new  parish. 
There  never  was  any  surplus  of  the  garden 
pennies  and  small  tithes  after  paying  the  stipend 
of  the  rector.  By  a  subsequent  local  act  the 
garden  ])cnnies,  &c,  were  extinguished,  and  the 
churchwardens  were  required  to  make  a  com- 
position rate  on  property  within  the  parish  to 
pay  the  rector's  stipend,  and  any  deficiency  in  the 
rates  and  duties  applicable  towards  maintaining 
divine  service  in  the  parish  church,  and  repairing 
the  church  : — Held,  that  the  effect  of  16  Geo.  2, 
c.  28,  was  to  direct  and  authorise  the  balance  of 
the  garden  pennies  and  small  tithes,  &c.  (after 
payment  of  the  rector's  stipend),  to  be  employed 
m  payment  of  the  parish  officers  elected  pursuant 
to  s.  25 ;  that  such  balance,  although,  in  fact, 
it  had  never  been  so  applied,  was  appropriated 
by  law  (within  the  meaning  of  s.  5  of  the 
Compulsory  Church  Rate  Abolition  Act,  s.  68) 
to  the  payment  of  ecclesiastical  purposes  ;  that 
the  whole  of  the  garden  pennies,  &c.  (not  only 
the  part  applicable  to  the  rector's  stipend),  being 
•extinguished,  the  composition  rate  was  levied 
in  consideration  of  such  extinguishment ;  and 
that,  therefore,  not  only  such  part  of  the  com- 
position rate  as  was  required  to  pay  the  rector's 
stipend,  but  also  the  part  applicable  to  eccle- 
siastical purposes,  could  legally  be  raised.  St. 
Matthew'*,  Bethnal  Green  v.  Perkins,  53  L.  T., 
634— H.  L.  (E.),  Affirming  S.  C,  sub  nom.  Reg. 
v.  St.  Matthew's,  Bethnal  Green,  50  L.  T.  65  ; 
48  J.  P.  340— C.  A. 

Rector's  Rate— Liability  to  Poor  Bate- 
Payment  in  lieu  of  Tithes.] — By  a  local  act  the 
parish  of  F.  was  constituted  a  separate  parish, 
and  it  was  provided  that  the  parson  should 
receive  the  tithes  within  the  limit  of  the  parish. 
It  was  further  provided  that  the  corporation  of 
the  town  of  F.,  which  was  in  the  parish,  should 
levy  a  rate,  called  "  the  rector's  rate,"  on  all 
houses,  shops,  warehouses,  cellars,  and  out- 
houses, with  the  appurtenances,  then  being,  or 
which  should  at  any  time  thereafter  be  built,  in 
the  town,  after  the  rate  of  sixteen  pence  in  the 
pound,  and  pay  the  same  to  the  parson  of  the 


parish.  When  houses,  shops,  warehouses,  cellars, 
and  outhouses  had  been  built  on  land  liable  to 
tithe,  tithe  had  not  been  collected  in  respect 
thereof.  The  defendant,  the  parson  of  the 
parish,  was  rated  to  the  relief  of  the  poor  in 
respect  of  the  rector's  rate  : — Held,  that  though 
under  43  Eliz.  c.  2,  a  parson  is  rateable  as  an 
inhabitant  in  respect  of  tithes  and  money  pay- 
ments in  lieu  of  tithes,  yet  the  defendant  was 
not  liable  in  respect  of  the  rector's  rate,  which 
was  not  a  payment  in  lieu  of  tithes,  inasmuch  as 
it  was  levied  on  lands  which  would  not,  on  default 
of  payment  of  the  rector's  rate,  be  liable  to  tithes. 
Reg.  v.  Christopherson,  16  Q.  B.  D.  7  ;  55  L.  J., 
M.  C.  1  ;  53  L.  T.  804  ;  34  W.  R.  86  ;  50  J.  P.212 
— C.  A. 

XII.     CHAPELS. 

Trust  Deed— Alteration  of  Trust — Dissentient 
Members.] — Under  a  deed  dated  in  1766,  certain 
property  was  directed  to  be  held  in  trust  to  be 
used  as  a  meeting-house  for  Protestant  dissenters 
of  the  Presbyterian  or  Independent  denomina- 
tion, so  long  as  the  laws  of  Great  Britain  should 
tolerate  Protestant  Dissenters.  For  eighty  years 
previously  to  February,  1881,  the  property  had 
been  enjoyed  as  the  chapel  of  a  congregation  of 
Independents.  On  that  date  a  majority  of  the 
members  passed  a  resolution  to  transfer  the 
chapel  and  congregation  to  the  Presbyterian 
Church  of  England  :— Held,  that  the  trust  was 
for  the  benefit  of  Presbyterians  and  Indepen- 
dents— both  or  either,  and  for  neither  denomina- 
tion to  the  exclusion  of  the  other.  Also,  that  as 
there  was  such  express  direction  in  the  trust 
deed,  Lord  Lyndhurst's  Act  (7  &  8  Vict  c.  45), 
s.  2,  had  no  application  on  the  question  of  usage: 
— Held  further,  that  the  proposed  transfer  to  the 
Presbyterian  Church  of  England  was  an  altera- 
tion of  the  trust,  and  was  a  matter  which  could 
not  be  effected  except  by  the  unanimous  vote  of 
the  congregation.  Attorney- General  v.  Ander- 
son, 57  L.  J.,  Ch.  543  ;  58  L.  T.  726  ;  36  W.  B. 
714 — Kekewich,  J. 

Liability  for  Paying  Few  Street— "Honae" 
— "  Land  "— "  Owner."]— By  the  term  "  houses," 
in  s.  105  of  the  Metropolis  Local  Management 
Act,  1855,  and  the  term  "  land,"  in  s.  77  of  the 
Metropolis  Local  Management  Act,  1862,  it  is 
intended  to  include  (with  certain  exceptions) 
all  the  frontage  of  a  new  street,  so  as  to  make 
all  the  owners  of  the  frontage  liable  to  con- 
tribute to  the  expense  of  paving  the  new  street. 
The  word  "  house  "  includes  every  building  which 
is  capable  of  being  used  as  a  human  habitation. 
If  a  building,  which  is  physically  capable  of 
being  so  used,  is  prevented,  either  by  common 
law  or  statute,  from  being  ever  put  to  such  a 
use,  it  is  exempted  from  the  liability  to  con- 
tribute to  the  expense.  A  consecrated  church  of 
the  Established  Church  of  England  is  exempted, 
because,  by  reason  of  its  consecration,  it  becomes 
by  the  common  law  for  ever  incapable  of  being 
used  as  a  habitation  for  man.  But  a  leasehold 
■  chapel  fronting  on  a  new  street,  the  chapel  being 
vested  in  trustees,  on  trust  to  permit  it  to  be 
used  as  a  place  of  religious  worship  by  a  con- 
gregation of  Wesleyans,  is  a  house  within  the 
meaning  of  s.  105,  for,  by  the  consent  of  the 
landlord,  the  trustees,  and  the  cestuis  qne 
trustent,  the  trusts  might  at  any  moment  be 
put  an  end  to: — Held,  also,  that  the  trustee! 


697 


ECCLESIASTICAL    LAW. 


698 


were  the  "  owners  "  of  the  chapel,  and  as  such 
liable  to  contribute  to  the  expense  of  paving  the 
new  street  Wright  v.  Ingle,  16  Q.  B.  D.  379  ; 
55  L  J.,  M.  C.  17  ;  64  L.  T.  511 ;  34  W.  R.  220  ; 
50  J.  P.  436— C.  A. 


XIII.   BURIAL  AND   BURIAL  BOARDS. 

Burial  within  100  yards  of  Dwelling-house.  J 
-By  18  k  19  Vict.  c.  128,  s.  9,  no  ground  not 
already  used  as  or  appropriated  for  a  cemetery 
shall  be  used  for  burials  "  within  the  distance  of 
one  hundred  yards  from  any  dwelling-house  " 
without  the  consent  of  the  owner,  lessee,  or 
occupier  of  such  dwelling-house : — Held,  that 
the  word  "  dwelling-house  "  did  not,  for  the 
purposes  of  the  act,  include  the  curtilage,  and, 
therefore,  that  the  specified  distance  must  be 
measured  from  the  walls  of  the  dwelling-house. 
Wright  v.  WalUuey  Local  Board,  18  Q.  B.  D. 
783 ;  56  L.  J.,  Q.  B.  259  ;  52  J.  P.  4— A.  L. 
Smith,  J. 

Burial  Board — Appointment  of] — The  exist- 
ence of  a  legally  constituted  burial  board  for  the 
*hole  of  a  parish,  does  not  prevent  the  vestry  of 
an  ecclesiastical  district  formed  out  of  such 
parish  under  1  &  2  Will.  4,  c  38,  and  which  does 
not  separately  maintain  its  own  poor,  from  legally 
appointing  a  burial  board  for  such  district  under 
18  k  19  Vict.  c.  128,  s.  12.  Beg.  v.  Tonbridge 
{Oterseers),  13  Q.  B.  D.  339  ;  63  L.  J.,  Q.  B. 
4S8;  51  L.  T.  179  ;  33  W.  R.  24  ;  48  J.  P.  740— 

e.A. 


Bight  of  Burial — Erections  on  Grave — 

fanal  Control.] — The  defendants,  a  burial 
hoard,  had  provided  a  burial-ground  under  15  & 
16  Vict.  c.  85.  By  s.  33  of  that  act  the  burial 
boaid  are  empowered  to  sell  the  exclusive  right 
of  burial  in  any  part  of  their  burial-ground,  the 
right  of  constructing  any  vault  or  place  of  burial, 
and  also  the  right  of  erecting  any  monument, 
gravestone,  tablet,  or  monumental  inscription  in 
such  burial-ground.  By  s.  38  the  general  man- 
agement, regulation,  and  control  of  the  burial- 
ground  are  vested  in  the  burial  board. — For  the 
purpose  of  burying  a  deceased  daughter,  the 
plaintiff  purchased  from  the  defendants,  and 
they  conveyed  to  him,  "  the  exclusive  right  of 
burial "  in  a  grave  space  in  their  burial-ground 
in  perpetuity ;  and  they  also  granted  him  the 
right  to  erect  a  gravestone  on  the  grave.  He 
afterwards  placed  upon  the  grave  a  wreath  and, 
to  protect  it,  a  glass  shade  covered  with  a  wire 
fnune.  It  was  the  general  rule  of  the  defen- 
dants never  to  allow  the  placing  of  each  glass 
•hades  on  the  graves  in  their  burial-ground,  and 
accordingly  the  defendants  removed  the  glass 
•hade  and  wire  frame  without  the  consent  of 
the  plaintiff  :—  Held,  that  the  plaintiff  had  only 
acquired  such  rights  as,  under  s.  33,  the  de- 
fendants were  empowered  to  sell ;  that  such 
rights  did  not  include  a  right  to  place  the  glass 
■hade  and  wire  covering  on  the  grave  ;  and  that, 
in  the  exercise  of  the  control  vested  in  them  by 
a,  38,  the  defendants  were  entitled  to  remove  the 
•mm.  MeOough  v.  Lancaster  Burial  Board, 
31  Q.  B.  D.  323  ;  57  L.  J.t  Q.  B.  568  ;  36  W.  R. 
tt* ;  52  J.  P.  740— C.  A. 

liability  to  Ineome  Tax — Surplus  Income 

it  aid  of  Poor-rato— "  Profit."}— A  burial  board 


was  constituted  under  15  &  16  Vict.  c.  85,  and  in 
pursuance  of  the  act  a  burial-ground  was  pro- 
vided with  money  charged  upon  the  poor-rate  of 
the  parish,  and  the  surplus  over  expenditure  of 
the  income  derived  from  the  fees  charged  by  the 
board  was  regularly  applied  in  aid  of  the  poor- 
rate  : — Held,  that  the  board  were  liable  to  be 
assessed  to  the  income  tax  in  respect  of  such 
surplus,  inasmuch  as  the  provision  requiring  it 
to  be  applied  in  aid  of  the  poor-rate  did  not 
prevent  it  from  being  a  "  profit "  within  5  &  6 
Vict.  c.  35,  s.  60.  Padding  ton  Burial  Board  v. 
Inland  Revenue  Commissioners,  13  Q.  B.  D.  9 ; 
53  L.  J.,  Q.  B.  224  ;  50  L.  T.  211  ;  32  W.  R.  561  ; 
48  J.  P.  311— D. 

Burning  Dead  Body.] — See  Reg.  v.  Price,  and 
Reg.  v.  Stephenson,  ante,  col.  578. 

Cemeteries  Glauses  Act — Bye-Laws— Exclu- 
sion.]— A  bye-law  of  a  cemetery  prohibited  a 
discharged  servant  from  being  admitted  to  the 
cemetery,  except  by  special  leave  of  the  direc- 
tors, and  it  authorized  his  removal.  D.,  the 
owner  of  a  grave,  employed  W.,  a  discharged 
servant,  to  do  some  work  : — Held,  that  there  was 
nothing  unreasonable  in  the  bye-law,  and  that 
W.  was  rightly  excluded  by  force  from  the 
cemetery.    Martin  v.  Wyatt,  48  J.  P.  215 — D. 

Burial  Fees — Separation  of  Parishes — Per- 
forming Ceremony.]  —  Where  a  cemetery  is 
formed  by  a  burial  board  under  the  Burials  Acts, 
1852  and  1853,  for  a  parish  which  never  had  any 
burial-ground,  the  incumbent  of  the  parish  is 
bound  to  perform  the  services  in  the  consecrated 
part  of  the  cemetery  over  bodies  of  parishioners 
and  inhabitants  of  his  parish,  and  is  entitled  to 
take  any  ecclesiastical  fees  which  the  board  may 
collect  in  respect  of  such  services.  Hornby  v. 
Toxteth  Park  Burial  Board  (31  Beav.  52),  dis- 
cussed.   Stewart  v.  West  Derby  Burial  Board, 

34  Ch.  D.  314  ;  56  L.  J.,  Ch.  425  ;  56  L.  T.  380  ; 

35  W.  R.  268— Kay,  J. 

The  parish  of  Walton,  which  included  the 
township  of  West  Derby,  had  an  ancient  church- 
yard, fees  being,  by  custom,  payable  to  the  vicar 
(as  distinguished  from  the  rector)  for  burials 
therein.  By  the  Walton  Rectory  Act,  1843,  the 
township  of  West  Derby  was  made  a  separate 
parish.  It  comprised  three  chapels  of  ease  with 
consecrated  cemeteries  attached,  which,  prior  ta 
the  separation,  had  been  provided  for  the  parish 
of  Walton,  and  the  sentences  of  consecration  of 
which  reserved  double  fees  for  burials  to  the 
vicar  of  Walton  and  the  curates  of  the  chapels. 
No  districts  were  attached  to  any  of  these 
chapels.  The  parish  of  West  Derby  never  had 
any  separate  burial-ground  of  its  own,  but  in 
1884,  a  burial-ground  was  provided  in  that 
parish  by  a  burial  board  under  the  Burials  Act, 
1852  (16  &  16  Vict.  c.  85),  extended  by  16  &  17 
Vict.  c.  134,  a  portion  of  it  being  duly  conse- 
crated. An  action  having  been  brought  by  the 
rector  of  West  Derby  against  the  board,  claim- 
ing the  right  to  bury  ana  receive  fees  for  burials 
in  such  burial-ground,  the  court  being  of 
opinion  that  it  had  jurisdiction  to  entertain  the 
action,  as  the  question  involved  one  of  property, 
namely,  the  right  to  fees : — Held,  reading  ss. 
32  and  52  of  the  Burials  Act,  1852,  together,  that 
in  the  consecrated  portion  of  such  burial-ground, 
the  plaintiff,  as  rector  of  West  Derby,  was 
under  an  absolute  obligation,  by  himself  or  by 


699 


ECCLESIASTICAL    LAW. 


700 


his  curate,  or  such  duly  qualified  person  as  he 
might  authorize,  to  perform  the  same  duties  in 
respect  of  burial  in  such  burial-ground  of 
parishioners  or  inhabitants  of  West  Derby  as  he 
would  have  been  obliged  to  perform  if  it  had 
been  the  burial-ground  of  his  parish,  and  was 
entitled  to  the  rights  and  authorities  incident  to 
such  duties  ;  and  was  also  entitled  to  receive  all 
such  fees  as  the  burial  board  might  collect  or 
receive  in  respect  of  such  duties.    lb. 

Sexton' •  Fees — Formation  of  Districts — 


Burial  Board  —  Cemetery.]  —  The  precinct  or 
chapelry  of  N.  became  long  before  1859,  by 
augmentation  of  Queen  Anne's  Bounty,  a  per- 
petual curacy,  and  was  treated  as  a  separate  and 
distinct  parish  for  all  civil  purposes — baptisms, 
marriages,  and  burials  being  performed  in  the 
chapel  and  the  burial-ground  thereto  belonging. 
In  1850,  a  portion  of  the  precinct  of  N.  was 
assigned  to  St.  John's  Church,  Southall,  which 
district  became  under  6  &  7  Vict.  c.  37  and 
other  acts  a  new  parish  for  all  ecclesiastical 
purposes.  By  Order  in  Council  of  May,  1859, 
the  chapelry  of  N.,  except  the  part  so  assigned 
to  St.  John's,  was  constituted  a  separate  parish 
for  ecclesiastical  purposes ;  and  the  chapel 
became  the  parish  church  of  N.  In  1860,  a 
piece  of  land  adjoining  St.  John's  Church,  which 
had  been  conveyed  to  the  ecclesiastical  com- 
missioners for  the  purpose  of  a  burial-ground 
for  that  district  (there  having  been  previously 
no  burial-ground  within  the  district,  and  the 
parishioners  thereof  having  been  buried  in  the 
churchyard  of  N.)  was  consecrated  as  such  burial- 
ground,  and  used  as  the  burial-ground  both  of 
the  parish  of  St.  John  and  the  perpetual  curacy 
of  N.  The  sexton  of  St.  John's  performed  the 
duties  and  received  the  fees  for  interments  in 
the  churchyard  of  St.  John's.  By  an  Order  in 
Council  of  September,  1880,  a  portion  of  the 
parish  or  perpetual  curacy  of  N.  was  assigned  to 
St.  John's,  and  became  under  the  provisions  of 
32  &  33  Vict.  c.  94,  s.  1,  a  part  of  that  parish. 
In  1881,  a  burial  board  was  formed  for  the  whole 
poor-law  parish  of  N.  (including  St.  John's  and 
the  perpetual  curacy  of  N.),  and  they  provided  a 
cemetery  for  the  whole  district — the  churchyard 
of  N.  being  closed  for  burials.  The  statute  under 
which  the  Orders  in  Council  were  made  (6  &  7 
Vict.  c.  37)  makes  provision  for  all  other  persons 
affected  by  the  change,  but  is  silent  as  to  the 
position  of  the  sexton  and  his  fees  : — Held,  that 
the  plaintiff  (who  had  been  appointed  sexton  of 
N.  in  1865)  was  not  entitled  to  fees  in  respect 
of  burials  in  the  cemetery  from  that  portion  of 
the  parish  of  N.  which  had  been  annexed  to  the 
parish  of  St.  John ;  but  that  the  burial-board 
had  a  right  to  apportion  the  burial  fees  in  accord- 
ance with  the  limits  of  the  two  parishes.  White 
v.  Norwood  Burial  Board,  16  Q.  B.  D.  58  ;  55 
L.  J.,  Q.  B.  63 ;  54  L.  T.  81  ;  34  W.  B.  123  ;  50 
J.  P.  10O— D. 

Sale  of  disused  Burial-Oround — Buildings  on, 
prohibited  by  subsequent  Statute.]— By  the  St. 
Saviour's,  Southward  (Church  Rate  Abolition) 
Act,  1883,  after  reciting  that  certain  land  was 
then  vested  in  trustees  upon  trust  to  apply  the 
income  for  the  purposes  therein  mentioned,  the 
land  was  (sects.  6  and  7)  vested  in  the  trustees 
appointed  by  the  act  upon  trust  to  apply  the 
income  for  purposes  corresponding  to  those  of  the 
original  trust ;  and  by  s.  9  the  trustees  were 


empowered  to  sell  the  land  or  let  it  on  building 
or  other  leases.    The  land  had  formerly  been 
used  as  a  burial-ground,  but  in  1853  it  was  closed 
as  such  by  an  Order  in  Council,  and  thus  be- 
came a  "  disused  burial-ground."    By  s.  3  of  the 
Disused  Burial-Grounds  Act.  1884,  building  on 
any  disused    burial-ground   is    prohibited,  but 
s.  5  enacts  that  nothing  in  the  act  contained 
"  shall  apply  to  any  burial-ground  which  has 
been  sold  or  disposed  of  under  the  authority  of 
any  Act  of  Parliament."    In  1885  the  trustees 
under  the  Act  of  1883  put  the  land  up  for  sale 
by  auction,  describing  it  in  the  particulars  as 
"  building  land,"  and  stating  in  the  conditions 
that  although  it  was  a  disused  burial-ground,  they 
believed  that  it  came  within  s.  5  of  the  act  of 
1884,  and  that  they  had  therefore  power  under 
the  act  of  1883  to  sell  it  as  building  ground. 
The  property  was  knocked  down  to  Messrs.  0., 
who  signed  the  contract  and  paid  the  deposit. 
The  purchasers,  who  bought  for  building  pur- 
poses, having  refused  to  complete  on  the  ground 
that  building  on  the  land  was  expressly  pro- 
hibited by  the  act  of  1884  :— Held,  on  a  sum- 
mons by  the  trustees  under  the  Vendor  and 
Purchaser  Act,  1874,  that  the  act  of  1883  did 
not  constitute  a  sale  or  disposition  "  under  the 
authority  of  any  Act  of  Parliament,"  and  that 
having  regard  to  the  act  of  1884,  the  contract 
could  not  be  enforced  against  the  purchasers. 
St.  Saviour's  Rectory  (Trustee*)  and    Oyler, 
In  re,  31  Ch.  D,  412  ;  55  L.  J.,  Ch.  269 ;  54  L.  T. 
9  ;  34  W.  R.  224  ;  50  J.  P.  325— V.-C.  R 


XIV.  TITHES  AND  THEIR  COMMUTATION. 

Whether  Rateable  to  Poor  Bate— Personal 
Payment  —  Payment  in  Lieu  of  Tithe*.]  —  By 

37  Hen.  8,  c.  12,  provision  was  made  for 
payment  to  the  clergy  of  the  city  of  London 
and  their  successors  of  a  rate  made  upon 
the  inhabitants  and  calculated  upon  the  rent  of 
the  houses  in  the  city.  In  this  and  several 
subsequent  statutes  these  payments  were 
described  as  tithes.  A  special  Act  passed  in 
1881  provided  that  all  tithes  and  sums  of  money 
in  lieu  of  tithes  arising  or  growing  due  in  ft 
parish  in  London  should  cease  and  be  extin- 
guished, and  the  tithe-owner  should  receive  in 
lieu  and  satisfaction  thereof  a  fixed  annual  sum, 
to  be  levied  and  collected  in  the  same  manner 
as  the  poor  rates.  Neither  the  above-mentioned 
tithes  nor  the  fixed  annual  sum  in  lieu  thereof, 
had  ever  been  assessed  for  the  relief  of  the  poor: 
— Held,  that  the  owner  was  not  rateable  to  the 
poor-rate  in  respect  of  this  fixed  annual  sum,  as 
such  sum  was  a  personal  payment,  and  was  not 
a  payment  in  lieu  of  tithes  rateable  under  4S 
Eliz.  c.  2.  Esdaile  v.  City  of  London  Vmon,  1' 
Q.  B.  D.  431  ;  56  L.  J.,  M.  C"  149  ;  57  L.  T.  749 ; 
35  W.  R.  722  ;  51  J.  P.  664— C.  A. 

Poor  Bate— How  Recoverable.]— Where  the 
owner  of  a  tithe  rent-charge  does  not  pay  the 
rates  to  which  he  is  assessed  in  respect  thereof, 
the  amount  is  recovered  from  one  or  more  of  the 
occupiers  of  the  land  out  of  which  such  rent- 
charge  issues,  and  not  from  the  owner  of  snob 
rent-charge.  Lamplugh  v.  Voiding  Overtser^ 
52  L.  J.  505— Wills,  J.  Affirmed  22  Q.  B.  D. 
452;  58  L.  J.,  Q.  B.  279  ;  37  W.  R.  422 ;  53  J.  P. 
do9— tO.  A. 


701 


ECCLESIASTICAL    LAW— EJECTMENT. 


702 


rrsptrty  Tax— "  Annual  Value  "—Expenses  of 

CollwtioiL ] — In  estimating  the  "  annual  value  " 
of  tithe  commutation  rent-charge  for  the  pur- 
posed charging  the  owner  thereof  with  property 
tax  under  16  k  17  Vict,  c  34,  s.  32,  the  amount 
necessarily  expended  by  him  in  collection  of  the 
tithe  rent-charge  must  be  deducted.  Strven*  v. 
Bitkop,  20  Q.  B.  D.  442  ;  67  L.  J.,  Q.  B.  283  ;  58 
L.  T.  669 ;  36  W.  R.  421  ;  62  J.  P.  548— C.  A. 

Inpayment  of  Tithes— M Tithes  in  kind "— 
■  Periodical  Sums  charged  on  Land  "—Statute  of 
Imitations.]— The  statute  and  decree  of  37 
Hen.  8,  c.  12,  provided  that  the  inhabitants  of 
the  city  of  London  for  the  time  being  should 
yearly  for  ever  pay  their  tithes  in  respect  of 
their  houses  after  certain  rates.    A  lay  impro- 

Ciator  of  the  tithes  in  a  parish  within  the  city 
Ting  brought  an  action  to  recover  from  the 
inhabitants  of  certain  houses  within  the  parish 
tithes  payable  under  this  statute,  it  appeared 
that  (so  far  as  was  known)  no  tithes  or  payments 
in  lieu  of  tithes  had  ever  been  paid  in  respect  of 
those  houses : — Held,  upon  the  authority  of 
Andrew*  v.  Dreter  (3  CL  k  F.  314)  that  (apart 
horn  statute)  mere  non-payment  afforded  no 
defence  even  against  a  lay  impropriator,  that 
the  payments  imposed  by  37  Hen.  8,  c.  12,  were 
a*  a  render  of  tithes  in  kind  within  the  mean- 
ing of  the  Tithe  Prescription  Act,  2  k  3  Will.  4, 
c  100,8. 1,  and  that  that  act  afforded  no  defence, 
and  that  the  payments  imposed  by  37  Hen.  8, 
e>  12,  were  "annuities  or  periodical  sums  of 
aoney  charged  upon  land  "  within  the  meaning 
<*  the  Statute  of  Limitations,  3  &  4  Will.  4,  c.  27, 
«■  1,  and  that  the  statute  (as  amended  by  37  k 
&  Vict  c  67)  afforded  a  defence  to  the  action. 
Aya*  v.  EtdaiU,  13  App.  Cas.  613 ;  68  L.  J., 
Ch.  299 ;  59  L.  T.  668  ;  37  W.  R.  273  ;  53  J.  P.  100 
-H.  L.  (B.) 

—  u  Bent M  —  "  Composition  "—  Statute  of 
^■tottsns.] — The  right  to  tithe  rent-charge  in 
Ireland  was  vested  in  a  spiritual  corporation 
*ie  until  1871,  when  it  was  transferred  by 
•^tate  to  a  lay  corporation.  In  1877  the  lay 
corporation  brought  an  action  against  the  per- 
sons liable  to  pay  tithe  rent-charge  to  recover 
■x  years'  arrears.  For  more  than  twenty  years 
next  before  action  there  had  been  no  payment 
and  no  acknowledgment  in  writing : — Held, 
*at  the  tithe  rent-charge  was  "rent"  within  s. 
1  of  the  Statute  of  Limitations  (3  &  4  Will.  4, 
«•  27),  and  not  a  "  composition  "  within  the  ex- 
ctption  to  s.  1,  compositions  in  Ireland  having 
ben  abolished  by  1  &  2  Vict.  c.  109  ;  that  s.  2  of 
J  *  4  Will  4,  c.  27,  applied  as  between  the 
*»ser  and  the  persons  liable  to  tithe  rent- 
c***ge ;  that  the  fay  corporation  could  not  avail 
themselves  of  the  provisions  of  s.  29  in  favour  of 
spiritual  corporations  sole ;  and  that  the  action 
*as  barred  by  the  lapse  of  twenty  years.  Irish 
***d  Qmmwion  v.  Grant,  10  App.  Cas.  14  ; 
K  L.  T.  228  ;  38  W.  R.  357— H.  L.  (Ir.). 

tastes  not  Boeoverable  by  Sale.]— By  the 
ftth  section  of  the  Tithe  Commutation  Act  (6  k 
TWfll.  4,  c  71),  the  sum  thenceforth  payable  in 
«*  of  tithes  is  declared  to  be  "  in  the  nature  of 
*  Tent-charge  issuing  out  of  the  lands  charged 
therewith.*    Lands  in  respect  of  which  a  tithe 


^^       „ .    .  __  payable  having  become  unpro 

jjettve,  and  the  remedy  by  distress  and  entry 

■*rng  become  ineffectual :— Held,  that  the  sum 


payable  in  lieu  of  tithes  is  not  by  the  statute 
rendered  a  charge  on  the  inheritance  ;  aud  that 
the  owner  of  the  rent-charge  was  not  entitled  to 
claim  a  sale  of  the  lands  in  order  to  recover  the 
arrears  of  his  rent-charge.  Bailey  v.  Badliam, 
30  Ch.  D.  84  ;  54  L.  J.,  Ch.  1067  ;  63  L.  T.  13  ; 
33  W.  R.  770  ;  49  J,  P.  660— V.-C.  B. 

Recovery  of  Arrears — Liability  of  Owner  of 
part   of  Lands    charged — Contribution.] — The 

defendant  was  the  owner  and  occupier  of  certain 
lands  in  the  parish  of  P.,  which  by  a  private  act 
were  charged  with  the  payment  to  the  vicar  of 
270/.  in  lieu  of  all  tithes.  The  act  provided  that 
if  the  annual  rents  were  in  arrear,  the  vicar  was 
to  have  such  and  the  same  powers  and  remedies 
for  recovering  the  same  as  by  the  laws  and 
statutes  of  the  realm  are  provided  for  the  re- 
covery of  rent  in  arrear;  and  also  that  if  no 
sufficient  distress  was  found  on  the  premises,  the 
vicar  might  enter  and  take  possession  of  the 
same  until  the  arrears  were  satisfied.  Four 
years1  arrears  of  the  annual  rent  accrued  in  re- 
spect of  the  whole  of  the  lands  charged,  during 
the  whole  of  which  period  the  defendant  was  the 
owner  and  occupier  of  a  portion  only  of  such 
lands  : — Held,  that  the  vicar  might  maintain  an 
action  of  debt  against  the  defendant  for  the 
whole  amount  in  arrear,  the  remedy  by  real 
action,  which  was  a  higher  remedy  than  the 
action  by  debt,  having  been  abolished  by  3  &  4 
Will.  4,  c.  27,  s.  36.  And  held,  further,  that  the 
defendant  had  his  remedy  in  an  action  against 
the  co-owners  for  contribution.  Christie  v. 
Barker,  53  L.  J.,  Q.  B.  637— C.  A. 


EDUCATION. 

See  SCHOOLS. 


EJECTMENT. 

See  LANDLORD  AND  TENANT. 

Ploadings  in  Aotion  for.]  —  See  Pbaoticb 
(Pleading). 

Writ  of  Possession  when  Plaintiffs  Title 
Expired.]  —  Where  a  landlord  has  recovered 
judgment  in  an  action  against  his  tenant  for  the 
possession  of  premises  which  had  been  held  over 
after  the  expiration  of  the  tenancy,  he  will  be 
allowed  to  issue  the  writ  of  possession  notwith- 
standing that  his  estate  in  the  premises  termi- 
nated after  the  commencement  of  the  action 
and  before  the  trial,  unless  it  be  unjust  and 
futile  to  issue  such  writ,  and  it  is  for  the  defen- 
dant to  show  affirmatively  that  this  will  be  the 
result  of  issuing  such  writ  Knight  v.  Clarke, 
15  Q.  B.  D.  294  ;  64  L.  J.,  Q.  B.  509  ;  60  J.  P.  84 
— C.A. 


708 


ELECTION- ELECTION    LAW. 


704 


ELECTION. 

Doctrine  of— Restraint  on  Anticipation.]— 
The  doctrine  of  election  depends  on  intention, 
and  a  settlement  which  settles  property  on  the 
wife  without  power  of  anticipation  contains  a 
declaration  of  a  particular  intention  inconsistent 
with  and  excluding  the  doctrine  of  election  ;  so 
that  the  married  woman  who  by  the  settlement 
has  (being  an  infant)  covenanted  to  settle 
future  properly  is  not  bound,  on  taking  a 
bequest  for  her  separate  use,  to  make  compensa- 
tion to  her  husband  and  children  out  of  the 
income  of  the  fund  settled  to  her  separate  use 
without  power  of  anticipation.  Willoughby  v. 
Middleton  (2  J.  k  H.  344),  dissented  from  ; 
Smith  v.  Lucas  (18  Ch.  D.  531),  and  Wheatley, 
In  re  (54  L.  J.,  Ch.  201),  approved.  Var don's 
Trusts,  In  re%  31  Ch.  D.  275  ;  55  L.  J.,  Ch.  259  ; 
53  L.  T.  895  ;  34  W.  R.  185— C.  A. 

In  the  case  of  a  married  woman  to  whom  an 
interest  with  a  restraint  on  anticipation  attached 
thereto  is  given  by  the  same  instrument  as  that 
which  gives  rise  to  a  question  of  election,  the 
doctrine  of  election  does  not  apply,  as  the  value 
of  her  interest  in  the  property  to  be  relinquished 
by  way  of  compensation  has,  by  the  terms  of  the 
instrument,  been  made  inalienable.  Wheatley, 
In  re.  Smith  v.  Spenoe,  27  Ch,  D.  606  ;  54  L.  J., 
Ch.  201  ;  51  L.  T.  681  ;  83  W.  R.  275— Chitty,  J. 

By  a  post-nuptial  settlement  made  in  1847,  it 
was  agreed  and  declared  by  and  between  the 
husband,  wife,  and  trustees,  and  the  husband 
covenanted  that  all  property  which  the  wife, 
or  her  husband  in  her  right,  was  then  or  should 
during  the  coverture  become  possessed  of  or  en- 
titled to,  should  be  assured  upon  trust  for  the 
wife  for  life  to  her  separate  use,  without  power 
of  anticipation,  and  after  her  death  upon  trusts 
in  favour  of  the  husband  and  issue  of  the  mar- 
riage. During  the  coverture  property  of  the 
wife  was  reduced  into  possession  by  the  hus- 
band, and  settled  upon  the  trusts  of  the  settle- 
ment. In  1883  the  wife  became  entitled,  as  one 
of  the  next  of  kin  of  a  deceased  testator,  to  a 
share  of  undisposed  of  personalty  : — Held,  that 
the  wife  could  be  put  to  her  election,  notwith- 
standing that  the  compensating  fund  was  sub- 
ject to  restraint  on  anticipation.  Willoughby 
v.  Middleton  (2  J.  k  H.  344)  questioned  but 
followed.  Queade's  Trusts,  In  re,  54  L.  J.,  Ch. 
786  ;  53  L.  T.  74  ;  33  W.  R.  816-Chitty,  J.  See 
preceding  cases. 

Tinder  Wills.]— See  Will. 

Hot  to  Avoid  Contract  on  Ground  of  Fraud.]— 
See  Fraud. 


ELECTION   LAW. 

I.  Parliamentary. 

1.  Registration  of  Voters. 

a.  Personal  Disqualifications,  704. 
i.  City  and  Borough  Voters,  704. 
o.  County  Voters,  711. 

d.  Notice  of  Objections,  712. 

e.  Revising  Barrister,  714. 


2.  Election  of  Members. 

a.  The  Poll,  718. 

b.  Returning  Officer,  718. 
e.  Election  Expenses,  719. 

d.  Election  Petition,  720. 

e.  Corrupt  Practices,  721. 

/.  Criminal  Law  relating  to,  722. 

II.  Municipal.— See  Corporation. 

III.  School  Board. — Sec  Schools. 

IV.  Local  Board. — See  Health. 


I.    PARLIAMENTARY. 

1.  Registration  of  Voters. 
a.  Personal  Disqualifications. 

Aliens — Persons  Born  in  Hanover.]— Person* 
born  in  Hanover  before  1837,  resident  in  this 
country  and  not  naturalised ;  persons  born  in 
Hanover  since  1837,  resident  in  this  country  and 
not  naturalised ;  and  persons  born  in  Prussia  of 
Hanoverian  parents  born  before  1837,  and  now 
resident  in  this  country  and  not  naturalised,  are 
all  aliens  and  not  entitled  to  the  franchise. 
Isaacson  v.  Durant,  17  Q.  B.  D.  54;  55  L.J., 
Q.  B.  331  ;  54  L.  T.  684  ;  34  W.  R.  547— D. 

Constable  of  Metropolitan  Polks.]— By  10 
Geo.  4,  c.  44,  s.  18,  a  constable  of  the  Metropo- 
litan police  force  is  disqualified  from  voting  at 
the  election  of  a  member  of  parliament  for  cer- 
tain counties  or  for  any  city  or  borough  within 
the  Metropolitan  police  district :  —  Held,  that 
such  a  constable  is  a  person  "  incapacitated  by 
law  or  statute  from  voting,"  within  41  k  42 
Vict.  c.  26,  s.  28,  sub-a.  7,  and  consequently  is 
not  entitled  to  be  retained  on  the  list  of  voters 
under  the  Registration  of  the  People  Act,  1867 
(30  k  31  Vict.  c.  102).  Doulon  v.  Halse,  IS 
Q.  B.  D.  421  ;  56  L.  J.,  Q.  B.  41  ;  56  L.  T.  340; 
35  W.  R.  502  ;  51  J.  P.  183 ;  1  Fox,  1— D.  See 
50  Vict.  s.  2,  c.  9. 


b.  City  and  Borough  Voters. 

Joint  Tenancy  in  Law— Separate  Oeoupatiot 

in  fact] — A  claim  to  be  placed  on  the  register 
of  parliamentary  voters  may  be  sustained  by 
each  of  two  persons  who  are  joint  tenants  of  an 
entire  holding  consisting  of  separately  rated 
dwelling-houses  and  land,  pay  a  single  rent,  and 
accept  receipts  in  their  joint  names,  but  live 
each  in  one  of  the  dwelling-houses  separately, 
and  work  portions  of  the  land  severally,  and  the 
remainder  jointly.  Torish  v.  Clark,  18  L.  B., 
Ir.  289— C.  A. 

Lodger— Old  Lodgers'  list— Claim  to  bo  Regis- 
tered.]— The  claim  to  be  registered  is  an  essen- 
tial part  of  the  qualification  for  the  lodger 
franchise.  The  voter  was  on  the  old  lodgers' 
list  of  voters  for  a  borough  for  1885.  He  made 
no  claim  to  be  registered  for  1886 ;  but  the 
overseers,  instead  of  causing  the  old  lodgers'  list 
for  that  year  to  be  printed  de  novo  from  the 
claims  served  upon  them,  caused  it  to  be  printed 
from  a  copy  of  the  old  lodgers*  list  in  the  current 
register,  from  which  they  intended  to  erase  the 


705 


ELECTION    LAN— Parliamentary. 


706 


names  in  respect  of  which  no  claims  had  been 
ieceived.  They  had,  however,  omitted  to  erase 
the  name  of  the  voter,  and  failed  to  discover 
the  mistake  before  the  list  had  been  signed  and 
published: — Held,  that  the  voter  was  not  en- 
titled to  have  his  name  retained  in  the  list  for 
1886.  Hersant  v.  liaise,  18  Q.  B.  D.  412;  56 
L  J.,  a  B.  44  ;  56  L.  T.  337  ;  35  W.  R.  503  ;  51 
J.  P.  135 ;  1  Fox,  12— D. 

Inhabitant  Householders  —  Lodgers.]  —  The 

feet  that  the  landlord  of  a  house  let  out  in 
separate  tenements  lives  in  the  house  is  a  vital 
element  to  be  considered  in  determining  whether 
or  not  the  occupiers  of  such  tenements  are 
lodgers,  or  qualified  as  inhabitant  householders 
under  the  Representation  of  the  People  Act, 
1&4,  and,  as  an  all  but  universal  rule,  will 
prerent  their  successfully  claiming  the  franchise 
in  respect  of  such  occupation  otherwise  than  as 
lodger.  The  decision  of  such  cases  depends 
upon  the  effect  of  evidence  given  to  establish  a 
natter  of  fact ;  but  it  is  a  question  of  law 
▼hether  any  given  matter  of  fact  is  conclusive 
apon  the  law,  or  whether  there  is  any  evidence 
to  sustain  any  given  findings  of  fact.  In  order 
to  constitute  lodgings  which  will  qualify  for  the 
franchise,  the  part  of  the  house  occupied  by  the 
claimant  must  be  part  of  one 4* dwelling-house" ; 
and  in  the  case  of  an  inhabitant  occupier  of 
part  of  a  house,  claiming  as  such,  it  must  be 
shown  that  the  part  which  he  occupies  is  in 
itself  one  separate  "  dwelling-house,"  and  not 
merely  part  of  one.  Hogan  v.  Sterrett,  20  L.  R., 
Ir.  344-C.  A. 

House  let  in  Flats— Landlord  living  on 
i.] — Where  the  claimant,  his  landlord, 
*nd  a  third  person  were  each  occupiers  of  a 
separate  flat  of  the  house  rented  by  the  landlord, 
and  all  three  used  the  stairs,  hall-door,  and  yard 
in  common,  the  revising  barrister  having  de- 
cided that  the  claimant  was  not  an  inhabitant 
occupier,  but  a  lodger  :-  Held,  that  on  the 
Beta,  the  onus  lay  on  the  claimant  of  showing 
that  he  was  an  inhabitant  occupier  and  not  a 
lodger,  and  that  he  had  failed  to  do  so.  Held 
ibo,  that  the  manner  in  which  other  houses  in 
tne  street  were  occupied  was  not  material  to  the 
question,  as  each  claimant's  case  must  be  de- 
cided upon  its  own  facts.  Campbell  v.  Chamber*, 
»  L.  R.,  It.  355— C.  A. 

Occupation  as  Owner  or  Tenant — Per- 
user of  Boon.] — During  the  qualifying 
7«ar,  and  for  some  time  previously,  a  separate 
roxa  in  the  dwelling-house  of  claimant's  father 
was  allotted  by  him  to  the  claimant,  who  slept 
in  and  occupied  the  room,  separately  and  exclu- 
»*ely  for  his  own  purposes,  as  his  own.  The 
claimant's  father  was  sole  tenant  of  the  pre- 
mises, and  had  control  of  the  door  and  of  the 
re*  of  the  house : — Held,  that  the  claimant  was 
ut  entitled  to  the  franchise.  Clarke  v.  Buchanan, 
»  U  R^  Ir.  201— C.  A. 

tastrnetiTe  Beaidence— Freeholder.]  — The 
■ppellant,  who  claimed  to  be  registered  as  a 
joter  for  the  city  of  Exeter,  had  a  bedroom  kept 
far  his  exclusive  use  in  his  father's  house  in 
Kxeter.  During  the  qualifying  period  he  went 
to  London  in  quest  of  employment,  and  having 
°°tained  a  temporary  situation  in  London  he 
"Bnained  there  for  two  months  and  then  re- 


turned to  his  father's  house  in  Exeter.  He 
remained  in  Exeter  three  weeks  and  then  went 
back  to  London,  and  obtaining  employment 
there  did  not  return  to  Exeter  during  the  rest  of 
the  qualifying  period  : — Held,  that  the  facts  did 
not  show  a  constructive  residence  in  Exeter 
during  the  qualifying  period  within  the  meaning 
of  the  Reform  Act,  1832  (2  &  3  Will.  4,  c.  45), 
s.  31.  Beal  v.  Exeter  (Town  Clerk),  20  Q.  B.  D. 
300  ;  57  L.  J.,  Q.  B.  128  ;  58  L.  T.  407  ;  36  W. 
1  R.  507  ;  52  J.  P.  501  ;  1  Fox,  31— D. 

Service  Franohise — Municipal  Vote.] — Occu- 
pation of  a  dwelling-house  by  virtue  of  an  office, 
service,  or  employment  within  the  meaning  of 
i  the  Representation  of  the  People  Act,  1884  (48 
Vict.  c.  3),  8.  3,  is  no  qualification  for  the  muni- 
cipal franchise.  Jf' Clean  v.  Prichard,  20  Q.  B. 
D.  285  :  58  L.  T.  337 ;  36  \V.  R.  508  ;  52  J.  P. 
519  ;  1  Fox,  94— D. 


Religious  Community — Bedroom  consti- 


tuting *'  Dwelling-house."] — Each  teacher  in  a 
college  conducted  by  a  religious  community  had, 
as  such,  during  the  qualifying  period,  the  exclu- 
sive use  of  a  separate  bedroom  in  the  college  by 
virtue  of  his  office  or  employment  as  a  teacher 
in  the  college,  which  was  managed  by  a  resident 
principal,  under  the  supreme  control  of  the 
superior-general  of  the  community,  who  himself 
lived  in  Paris.  The  revising  barrister  having 
found  that  each  bedroom  so  occupied  constituted 
a  "  dwelling-house  "  for  the  purpose  of  the  fran- 
chise, and  was  not  inhabited  by  the  person  by 
whom  the  teachers  were  employed,  or  under 
whom  they  served : — Held,  tnat  the  teachers 
were  entitled  to  the  franchise.  Stribling  v. 
Halse  (16  Q.  B.  D.  246)  followed.  Alexander 
v.  Burke,  22  L.  R.,  Ir.  443— C.  A. 


Gardener  occupying  Bedroom  oyer  Coaoh- 


house.] — Where  W.'s  gardener,  daring  the  quali- 
fying period,  exclusively  occupied  a  bedroom 
over  W.'s  coach-house,  in  which  bedroom  he  took 
his  meals,  which  were  prepared  by  W.'s  cook,, 
and  sent  to  him  from  W.'s  house,  the  coach- 
house containing  W.'s  carriages,  and  being  situate, 
in  a  detached  walled  yard,  separated  from  his 
house  by  an  avenue,  but  included  in  the  grounds 
surrounding  it : — Held,  that  the  gardener  was 
entitled  to  the  franchise.  Holly  v.  Burke,  22 
L,  R.,  Ir.  463— C.  A. 


Separate  Bedroom — Shop  Assistants.] — 


The  claimant,  a  shop  assistant,  had,  during  the 
qualifying  period,  by  virtue  of  his  employment, 
the  sole  use  of  a  bedroom  in  a  dwelling-house 
belonging  to  his  employers,  in  which  were  a 
number  of  other  bedrooms  occupied  by  other 
persons  in  the  same  employment.  The  claimant 
and  all  the  other  persons  residing  in  the  house 
had  their  meals  in  a  common  room,  of  which 
they  each  had  the  joint  use,  in  addition  to  the 
separate  use  of  their  respective  bedrooms.  The 
employers  exercised  a  general  control  over  the 
house,  and  enforced  such  control  by  means  of  a 
resident  caretaker,  but  not  otherwise : — Held, 
that  each  assistant  who  had  the  sole  use  of  a 
bedroom  under  the  above  circumstances  had 
obtained  the  service  franchise  by  virtue  of  8.  3 
of  the  Representation  of  the  People  Act,  1885. 
StriUing  v.  Halse,  16  Q.  B.  D.  246  ;  55  L.  J., 
Q.  B.  15  ;  54  L.  T.  268  ;  49  J.  P.  727 ;  1  Colt. 
409— D. 

A  A 


707 


ELECTION    LAW— Parliamentary. 


708 


Occupation  of  Booms  in  Workhouse.]-— 

The  industrial  trainer  of  a  workhouse  occupied 
two  rooms  in  the  workhouse  building.  The 
master  of  the  workhouse  resided  in  other  rooms, 
and  another  room  was  set  apart  for  the  use  of 
the  guardians  who  transacted  business  therein. 
It  was  part  of  the  master's  duty  to  lock  the 
workhouse  gates  at  a  certain  hour,  and  to  report 
to  the  guardians  if  the  industrial  trainer  was 
out  after  that  time  :— Held,  that  the  master  of 
the  workhouse  was  not  a  person  under  whom 
the  trainer  served,  within  the  meaning  of  48 
Vict.  c.  3,  s.  3  ;  that  the  guardians  could  not  be 
said  to  reside  in  the  workhouse ;  and  that  the 
trainer  was  entitled  to  the  franchise.  Adams 
v.  Ford  or  Fox,  16  Q.  B.  D.  239  ;  55  L.  J.,  Q.  B. 
13  ;  53  L.  T.  666  ;  34  W.  R.  64  ;  49  J.  P.  711  ;  1 
Colt.  403— D. 

Separate  Bedroom — Joint  use  of  8itting 

room.  ] — H.,  a  servant,  occupied  exclusively,  by 
virtue  of  his  service,  a  furnished  bedroom  in  a 
dwelling-house  belonging  to  Mb  master,  and  had 
in  common  with  another  young  man  the  use  of 
a  sitting-room  in  the  same  house.  All  the  furni- 
ture belonged  to  the  master,  who  did  not  reside 
in  the  house,  but  had  free  access  at  all  times  to 
every  portion  of  it  except  H.'s  bedroom,  and  had 
access  to  it  whenever  he  asked  for  the  key, 
which  he  had  a  right  to  demand  whenever  he 
chose ;  the  bedrooms  were  made  up  by  a 
charwoman  who  was  paid  by  the  master  and 
did  not  reside  on  the  premises  : — Held,  that  H. 
was  entitled  to  the  franchise.  Boston,  v.  Cham- 
ber*, 18  L.  R.,  Ir.  68— C.  A. 

R.  was  foreman  of  a  shop  and  place  of  business 
in  which  a  number  of  young  men  were  employed. 
By  virtue  of  that  employment  he  and  they  lived 
in  a  separate  house  in  which  he  had  a  bedroom 
that  he  occupied  exclusively.  He  and  the  other 
employes  took  their  meals  in  a  common  sitting- 
room,  and  the  only  resident  in  the  house  was  a 
servant  paid  by  the  employer  to  attend  to  the 
occupants  ;  R.  had  a  latchkey  for  the  hall  door 
and  nad  also  charge  of  the  other  keys,  and  it 
was  his  duty  to  see  that  the  doors  were  locked 
and  the  occupants  within  doors  every  night : — 
Held,  that  R.  was  entitled  to  the  franchise.    lb. 

Coachman  living  over  Stable.]  —  C.  as 

his  employer's  coachman  occupied  a  room  over 
the  stable  and  was  treated  as  a  domestic  servant. 
The  stable  was  in  the  employer's  yard  and  was 
a  part  of  the  curtilage  of  the  dwelling-house— 
the  house  and  yard  being  all  included  under  the 
separate  number  in  the  poor-rate  book ;  there 
was  a  separate  gateway  and  gate  from  the  yard 
into  a  back  lane,  and  also  a  wicket  leading  from 
the  yard  into  the  lane.  The  gate  and  wicket 
formed  the  only  access  to  the  yard  except  by 
going  through  the  employer's  house,  and  were 
under  her  control,  Another  of  the  servants 
cleared  out  C.'s  rooms : — Held,  that  C.  was  not 
entitled  to  the  franchise.    lb. 

Soldier  occupying  Quarters.] — A  non- 
commissioned officer  in  the  service  of  the  Grown 
claimed  the  parliamentary  franchise  as  the  in- 
habitant occupier  of  a  dwelling-house  in  respect 
of  rooms  occupied  by  him  as  his  quarters  in 
barracks.  He  had  inhabited  the  rooms,  which 
consisted  of  a  bedroom  and  sitting-room,  during 
the  qualifying  period,  subject,  however,  to  cer- 


tain regulations  and  powers  of  superior  officer* 
incident  to  military  service,  such,  for  instance, 
as  the  power  of  entry  by  the  commanding  officer 
at  any  time,  and  by  other  superior  officers  for 
the  purpose  of  preserving  order,  and  by  certain 
officers  at  stated  times  for  the  purpose  of  inspec- 
tion of  the  rooms,  the  power  of  the  commanding 
officer  to  forbid  any  person  to  enter  or  leave  the 
barracks  at  any  time,  and  the  obligation  to  be 
in  his  quarters  at  a  stated  hour  every  evening. 
The  Crown  supplied  certain  necessary  articles  of 
furniture  for  the  rooms,  the  rest  of  the  furniture 
being  the  claimant's  own.     The  rooms  formed 
part  of  one  of  the  blocks  of  buildings  situate 
within   the  barrack  inclosure,  the  remaining 
rooms  in  the  block  being  occupied  by  other  non- 
commissioned  officers,    some   of    whom  were 
superior  in  rank  to  the  claimant,  and  the  senior 
of  whom  was  bound  to  preserve  order  in  the 
block,    and  would    be   entitled    to  enter  the 
claimant's  rooms  for  that  purpose.    The  colonel 
commanding  lived  in  a  house  situate  within  the 
walls  of  the  barracks  : — Held,  that  the  claimant 
was  entitled  to  the  franchise  under  the  3rd  sec- 
tion of  the  Representation  of  the  People  Act, 
1884,  on  the  ground  that  he  had  inhabited  a 
dwelling-house  within  the  meaning  of  that  sec- 
tion, and  that  no  person  under  whom  he  served 
had  inhabited  such  dwelling-house.     Atkinson 
v.  Collard*  16  Q.  B.  D.  254 ;  55  L.  J.,  Q.  B.  18: 
53  L.  T.  670  ;  34  W.  R.  75  ;  50  J.  P.  23  ;  1  Colt. 
375— D. 

Compulsory  Absence  on  Duty — Militiaman.] 
— A  non-commissioned  officer  on  the  staff  of  a 
militia  regiment  resided  with  his  family  in  a 
house  within  a  borough.  During  the  annual 
training  of  the  regiment  he  was  absent  from  the 
borough  twenty-six  days  of  the  qualifying  year, 
but  while  so  absent  his  house  continued  to  be 
occupied  by  his  wife,  family,  and  furniture. 
With  the  leave  of  his  superior  officer  he  returned 
at  intervals  during  the  annual  training  to  h» 
house  in  the  borough,  and  could  have  returned 
there  every  night  had  the  distance  been  less,  as 
his  duties  did  not  require  hiB  attendance :— Held, 
following  Ford  v.  Barnes  (16  Q.  B.  D.  254)  and 
Spittall  v.  Brook  (18  Q.  B.  D.  426),  that  occupa- 
tion, under  the  circumstances,  was  broken. 
Donoghvc  v.  Brook,  67  L.  J.,  Q.  B.  122  ;  58  L.  T. 
411 ;  1  Fox,  100— D. 

A  private  in  a  militia  regiment  was  compnl- 
sorily  absent  from  his  residence  for  training 
during  part  of  the  qualifying  year.  While  at 
training  he  could  not  leave  the  regiment  without 
breach  of  military  discipline : — Held,  that  he 
was  not  entitled  to  the  parliamentary  franchise 
as  an  inhabitant  occupier.  Martin  ▼.  Hanrahan. 
22  L.  R.,  Ir.  452— C.  A. 

yon-commissioned     Offlom.]  —  Where 

votes  were  claimed  by  persons  in  military  ser- 
vice, the  claimants,  non-commissioned  officer?, 
had  been  absent  for  twenty-one  days  during  the 
qualifying  period  from  their  quarters  on  duty 
elsewhere,  and  could  not  return  without  leave,  but 
during  such  absence,  in  one  case  the  claimant's 
wife  and  family,  and  in  the  other  his  furniture, 
remained  in  the  quarters  which  were  retained 
for  him  : — Held,  that  it  not  sufficiently  appearing 
in  those  cases  that  there  had  been  any  construc- 
tive inhabitancy  of  the  rooms  by  the  claimants 
during  the  twenty-one  days  when  they  were  in 
fact  absent,   they   were   not   qualified   under 


709 


ELECTION    LAW— Parliamentary. 


710 


tectum  3  of  48  Vict.  c.  3.  Ford  v.  Barnes,  16 
Q.  B.  D.  254  ;  65  L.  J.,  Q.  B.  24  ;  53  L.  T.  675  ; 
34  W#  B.  78  ;  60  J.  P.  37  ;  1  Colt.  396— D. 

He  appellant,  a  non-commissioned  officer, 
resided  with  his  family  in  barracks,  situate 
within  a  borough,  in  separate  rooms  allotted  to 
him  by  the  quartermaster-general.  During 
twenty-seven  clays  of  the  qualifying  year  he  was 
compnlsorily  absent  from  the  borough,  but 
while  so  absent  his  name  was  retained  on  the 
strength  of  the  regimental  depot  in  the  monthly 
returns  to  the  War  Office,  and  the  rooms 
continaed  to  be  occupied  by  his  furniture  and 
his  family ;  but  he  himself  could  not  (unless  by 
leave,  which  he  had  obtained  for  one  or  two 
days) return  to  the  borough  without  beingguilty 
of  a  breach  of  duty  : — Held,  following  Ford  v. 
Barnes  (16  Q.  B.  D.  254),  that  the  appellant 
had  not  occupied  the  rooms  in  the  barracks 
daring  the  qualifying  period,  and  that  he  was 
not  entitled  to  be  registered  as  a  voter  for  the 
borough.  Spittall  v.  Brook,  18  Q.  B.  D.  426 ; 
«L  J.,  a  B.  48  ;  56  L.  T.  364  ;  35  W.  R.  520  ; 
1  Jox,  22— D. 

Compulsory  Absence — Servant  at  Hotel] — 
The  claimant  was  tenant  of  a  house  in  which  nis 
family  resided,  but  by  the  terms  of  his  employ- 
ment, as  a  servant  of  an  hotel,  the  claimant  was 
obliged  to  remain  in  the  hotel  for  six  dayB  and 
ax  nights  in  each  week,  the  remaining  day 
and  night  in  each  week  being  spent  by  him 
in  his  own  house  : — Held,  that  the  claimant  was 
entitled  to  the  franchise  in  respect  of  the  house. 
X'Kndriek  v.  Buchanan,  20  L.  B.,  Ir.  206— C.  A. 

— ^-  Absence  of  Undergraduates  from  Uni- 
vtnitlM.] — The  undergraduates  of  Oxford  and 
Cambridge  are  not  permitted  to  reside  in  their 
rooms  during  the  vacations,  which  comprise 
nearly  six  months  of  the  year,  without  special 
leave  from  the  college  authorities,  who  are  ac- 
customed to  let  and  otherwise  make  use  of  their 
noms  during  their  absence : — Held,  that  such 
compulsory  absence  amounted  to  a  break  of 
residence  disqualifying  them  for  the  exercise  of 
the  franchise.  Tanner  v.  Carter ;  Banks  v. 
Jfeurtt,  16  a  B.  D.  231 ;  55  L.  J.,  Q.  B.  27 ; 
»  L  T.  663  ;  34  W.  R.  41 ;  1  Colt.  435— D. 


of  &  17  of  the  Redistribution  of  Seats  Act, 
1885.  D.*wn  v.  Steele,  55  L.  J.,  Q.  B.  36  ;  1 
Colt  458— D. 

Rates  unpaid — Owner  liable— Ho  notice  to 
Oooupier.J — A  claimant  is  not  entitled  to  the 
franchise  as  a  rated  occupier  where  the  rates, 

Eayable  in  respect  of  the  qualifying  premises 
ave  not  been  paid,  though  the  owner,  and  not 
the  occupier,  is  the  person  liable  to  pay  the  rates, 
and  though  no  notice  of  the  rate  being  in  arrear 
was  given  to  the  occupier,  as  required  by  the  30 
k  31  Vict.  c.  102,  8.  28.  Clarke  t,  Buchanan, 
20  L.  R.,  Ir.  244— C.  A. 

Arrears  accrued  previously  to  Qualifying 


Occupation.]  —  A  claim  to  the 
parliamentary  franchise  may  be  sustained  by 
combining  a  series  of  occupation  of  dwelling- 
houses  daring  the  qualifying  period — (a)  partly 
hy  virtue  of  service,  and  partly  under  ordinary 
tenancies  or  (b)  wholly  by  virtue  of  service. 
Toritk  v.  Clark,  18  L.  R.,  Ir.  285— C.  A. 

Area  divided  into  two  Constituencies.]— 

6.  claimed  a  vote  for  the  borough  of  Lewisham  in 
fcspect  of  the  occupation  of  two  houses  in 
immediate  succession,  the  first  house  being 
*tnated  at  Reckenham,  and  the  second  at  Lower 
Sydenham.  Before  the  passing  of  the  Redistri- 
bution of  Seats  Act,  1885,  both  Beckenham 
*nd  Lower  Sydenham  were  included  in  the 
•est  division  of  the  county  of  Kent ;  but  by 
that  act  Beckenham  became  included  in  the 
8evenoaks  division  of  the  county,  and  Lower 
Sydenham  became  included  within  the  area 
of  the  Parliamentary  borough  of  Lewisham, 
*trich  borough  was  then  first  created  : — Held, 
that  G.  was  entitled  to  be  registered  as  a 
refer  for  the  borough  of  Lewisham  by  virtue 


Tear.] — A  person  claiming  the  county  franchise 
as  a  rated  occupier  is  not  entitled  to  be  registered 
unless  he  has  paid  on  or  before  the  next  previous 
1st  July,  all  poor-rates  due  by  him  in  respect 
of  the  qualifying  premises  and  not  merely 
the  rates  assessed  during  the  preceding  calendar 
year.     Clarke  v.  Torish,  18  L.  R.,  Ir.  60— C.  A. 

Medical  Relief —  Uncertificated  Kidwifo.]— 
The  wife  of  the  appellant,  being  near  her  con- 
finement, applied  to  the  relieving  officer  of  the 
union  for  an  order  for  the  attendance  of  a 
medical  man.  The  guardians  authorized  the 
relieving  officer  to  give  her  an  order  for  such 
attendance,  but  she  was  in  fact  attended  during 
her  confinement  by  an  uncertificated  midwife, 
who  was  sent  to  her  and  paid  by  the  relieving 
officer : — Held,  that  the  relief  afforded  to  the 
wife  was  "medical  assistance  "  within  48  &  49 
Vict,  c.  46,  s.  2,  and  that  the  appellant  was  not 
disqualified  from  being  registered  as  a  parlia- 
mentary voter.  Honeybone  v.  Hambridge,  18 
Q.  B.  D.  418  ;  56  L.  J.,  Q.  B.  4G  ;  56  L.  T.  365  ; 
35  W.  R.  520  ;  51  J.  P.  103  ;  1  Fox,  26— D. 

Parochial  Relief— Employment  hy  Guardians 
during  prevalence  of  Distress.]  — The  appellant 
and  others  had,  during  a  portion  of  the  qualify- 
ing period,  and  at  a  time  when  great  distress 
prevailed,  been  employed  by  the  board  of 
guardians  of  the  union  in  which  they  resided  to 
break  stones,  and  had  received  payment  for  their 
work.  The  payments  received  had  not  been  in 
any  way  commensurate  with  the  amount  of 
work  done,  but  with  the  wants  of  each  person 
employed ;  and  had  varied  according  to  the 
number  of  children  belonging  to  such  person : — 
Held,  that  the  payments  so  made  constituted 
relief  given  to  tne  persons  employed  ;  and  that 
they  were  therefore  disqualified  from  being 
registered  by  reason  of  tneir  having  been  in 
receipt  of  parochial  relief  within  s.  36  of  the 
Representation  of  the  People  Act,  1832.  Magar- 
rill  v.  Whitehaven  Overseer*,  16  Q.  B.  D.  242  ; 
55  L.  J.,  Q.  B.  38  ;  53  L.  T.  667  ;  34  W.  R.  275  ; 
49  J.  P.  743  ;  1  Colt.  448— D. 

Payment  for  Funeral.] — Application  for 

a  receipt  of  provision,  under  29  &  30  Vict  c.  38, 
for  the  interment  of  a  deceased  member  of  his 
family  during  the  qualifying  year  is  sufficient  to 
disqualify  the  recipient,  though  otherwise  en- 
titled to  the  franchise,  from  being  registered  as 
a  parliamentary  voter.  Kerr  v.  Chambers,  20 
L.  R.,  Ir.  207— C.  A. 

Receipt  of  Alms.] — By  the  provisions  of  a 
charity,  regulated  by  a  scheme  of  the  Charity 
Commissioners,  a  certain  number  of  the  poor 

A  A  2 


711 


ELECTION    LAW— Parliamentary. 


m 


inhabitants  of  a  borough,  who  had  not  been  for 
two  years  in  receipt  of  parish  relief,  were  re- 
ceived into  an  almshouse,  where  certain  weekly 
payments  and  other  benefits  were  bestowed 
upon  them.  They  were  liable  to  be  removed  for 
misconduct  and  other  causes  : — Held,  that  they 
had  received  alms  within  s.  36  of  2  &  3  Will.  4, 
c.  45,  and  were  therefore  disqualified  from  voting. 
Baker  v.  Monmouth  2'oum  Council,  53  L.  T.  668  ; 
34  W.  R.  64  ;  49  J.  P.  776— D. 

The  claimants  during  the  qualifying  period 
occupied  almshouses  in  a  borough  and  received 
out  of  a  charitable  fund  for  the  sustenance  of 
the  inmates  allowances  of  6*.  a  week.  The 
charity  was  regulated  by  an  Act  of  Parliament, 
which  provided  that  the  inmates  of  the  alms- 
houses were  to  be  persons  "  who  from  age,  ill- 
health,  accident,  or  infirmity  should  be  unable  to 
maintain  themselves"  : — Held,  that  the  facts 
showed  a  receipt  of  •'  alms  which  by  the  law  of 
Parliament  disqualify  from  voting"  nnder 
the  Reform  Act,  1832  (2  &  3  Will.  4,  c.  45),  s. 
36,  and  that  the  claimants  were  not  entitled  to 
be  registered  as  voters.  Edward*  v.  Lloyd,  20 
Q.  B.  D.  302 ;  57  L.  J.,  Q.  B.  121  ;  58  L.  T.  409  ; 
52  J.  P.  519  ;  1  Fox,  54— D. 

The  Licensed  Victuallers'  Asylum  is  an  insti- 
tution incorporated  under  royal  charter.  The 
design  of  the  institution  is  to  receive  and  main- 
tain decayed  aged  licensed  victuallers  and  their 
wives  and  widows.  Only  those  who  have  con- 
tributed to  the  funds  of  the  institution  as  sub- 
scribers or  donors  are  eligible  to  be  elected  as 
inmates  of  the  asylum.  The  funds  of  the  insti- 
tution are  largely  augmented  by  private  benevo- 
lence. The  inmates  are  subject  to  various  rules 
of  discipline,  which  may  be  altered  from  time  to 
time  by  the  board  of  management.  No  person 
having  an  income  exceeding  a  certain  amount  is 
qualified  to  be  elected  or  to  remain  an  inmate  of 
the  asylum.  The  funds  of  the  institution  are 
applied,  amongst  other  things,  in  augmentation 
of  the  incomes  of  the  inmates  up  to  a  limit  fixed 
from  time  to  time  by  the  board  :— Held,  that  the 
rules  of  the  institution  do  not  necessarily  show 
that  the  inmates  are  in  receipt  of  alms  such  as  to 
disqualify  them  from  the  franchise  under  the 
provisions  of  2  &  3  Will.  4,  c.  45,  s.  36.  Daniel* 
v.  Allardt  1  Fox,  70— D. 

o.  County  Voters. 

Equitable  Freehold — Lands  vested  in  Trus- 
tees —  Voluntary  Association.!  —  Where  an 
association  of  persons  has  purchased  land  for 
the  purposes  of  an  undertaking,  and  vested  it 
by  deed  in  trustees  and  managers  upon  such 
terms  and  conditions  that,  while  the  trusts  of 
such  deed  subsist,  the  individual  members  of  the 
association  are  respectively  entitled  only  to  a 
share  in  the  net  profits  of  the  undertaking 
carried  on  upon  the  land,  such  members  have 
not  an  equitable  freehold  in  the  land  so  as  to 
acquire  the  county  franchise,  although  the 
association  is  not  incorporated  or  registered  as 
a  joint  stock  company,  but  is  a  mere  voluntary 
association  without  statutory  powers  or  restric- 
tions. Baxter  v.  Brown  (7  M.  &  G.  198)  dis- 
cussed and  distinguished.  Wat  ton  v.  Black, 
16  Q.  B.  D.  270  ;  55  L.  J.,  Q.  B.  31  ;  54  L.  T.  17 ; 
34  W.  R.  274  ;  1  Colt.  418— D. 

Bentcharge  below  Value  of  £5— Occupation.  ] 
— Bys.  18  of  the  Reform  Act,  1832,  no  person  , 


|  shall  be  entitled  to  a  county  vote  in  respect  of 

\  any  freehold  lands  or  tenements  of  which  he 

!  may  be  seised  for  a  life  or  lives,  except  he  shall 

I  be  "  in  the  actual  and  bona  fide  occupation  of 

|  such  lands  or  tenements,"  or  except  the  same 

[  shall  be  of  the  clear  yearly  value  of  not  less 

I  than  10/.  (reduced  to  bl.  by  a  subsequent  act)  :— 

!  Held,  that  a  rentcharge  for  life  below  the  yearly 

!  value  of  5/..  being  incapable  of  occupation,  was. 

not  within  the  exception  in  s.  18,  and  therefore 

did  not  confer  a  county  vote.    Druitt  v.  Christ* 

church   Overteers,  12  Q.   B.  D.  365 ;  53  L.  J.^ 

Q.  B.  177  ;  32  W.  R.  371 ;  1  Colt.  328— D. 

Bentcharge  —  Actual  Possession.]— A.  being- 
possessed  of  a  rentcharge  issuing  out  of  freehold 
lands,  granted  it  unto  B.,  C.  and  D.,  and  their 
heirs,  to  hold  the  same  unto  B.,  C.  and  D..  and 
their  heirs,  to  the  use  of  A.,  B.,  C.  and  D..  their 
heirs  and  assigns  for  ever,  in  equal  one-fourth 
shares  as  tenants  in  common : — Held,  that  all 
the  grantees  took  under  the  Statute  of  Uses,  and 
that  by  force  of  the  statute,  and  on  the  authority 
of  Ueelis  v.  Blain  (18  C.  B.,  N.  S.  90),  they  were 
from  the  date  of  the  deed  in  actual  possession  of 
their  shares  of  the  rentcharge  within  s.  26  of 
2  &  3  Will.  4,  c.  45.  Lowcockv.  Broughton  Om- 
*cers,  12  Q.  B.  D.  369;  53  L.  J.,  Q.  B.  144; 
51  L.  T.  399  ;  32  W.  R.  247  ;  1  Colt.  335— D. 

d.  Notice  of  Objections. 

Service  through  Post — No  Postal  Delivery.] 
— Notice  of  objection  to  the  retention  of  hi& 
name  on  the  supplemental  list  of  inhabitant 
occupiers  in  their  polling  district,  was  addressed 
to  each  of  a  number  of  persons  to  the  townland 
in  which  he  resided,  and  was  posted  on  the 
19th  August,  at  D.,  from  which  town  the  notice 
would  in  ordinary  course  have  reached  the  local 
post  office  (situate  within  a  short  distance  of  the 
townland  in  each  case)  at  mid-day  on  the  20th. 
and  would  have  remained  there  till  called  foi. 
There  was  no  postal  delivery  at  any  of  the 
townlandB,  and  the  notice  could  not  hare 
reached  the  person  objected  to  unless  he  went 
or  sent  to  bis  local  post  office,  or  unless  by 
some  accidental  delivery  or  conveyance.  At  the 
revision  a  stamped  duplicate  copy  of  the  notice 
in  each  case  was  produced  to  prove  service,  but  no 
other  evidence  of  service  was  given  or  tendered, 
or  any  proof  that  any  person  objected  to  wa» 
aware  of  the  posting  of  the  notice,  or  had  sent 
to  his  post  office  on  the  19th  or  20th,  or  received 
the  notice  on  or  before  the  20th : — Held,  that 
the  notices  had  been  duly  served.  Adams  \. 
Buchanan,  18  L.  R.,  Ir.  292 — C.  A. 


"Ordinary  course  of  Post." ]— Notice* 

of  objection  to  borough  voters  under  6  Vict, 
c.  18,  8.  17,  were  addressed  to  barracks  in  which 
the  voters  resided,  and  were  posted  in  time  to 
have  been  delivered  on  August  20  by  postmen 
in  the  ordinary  course  of  post  at  places  within 
the  borough  elsewhere  than  at  the  barracks. 
Letters  addressed  to  the  barracks  were  nerer 
delivered  at  the  barracks  by  postmen,  but  were 
taken  from  the  post-office  by  orderlies.  On  the 
evening  of  August  20  the  letters  addressed  to 
the  barracks  were  taken  from  the  post-office  by 
orderlies.  Some  of  such  letters  were  distributed 
at  the  barracks  on  August  20,  others  on  August 
21,  while  with  respect  to  others  there  was  no- 
evidence  as  to  the  time  of  distribution  : — Held, 


718 


ELECTION    LAW— Parliamentary. 


714 


thai  the  {acts  did  not  show  that  there  was  any 
41  ordinary  coarse  of  post "  to  the  barracks  within 
the  meaning  of  8. 100,  and  that  therefore  there 
was  no  evidence  that  the  notices  had  been  served 
on  August  20.  Child*  v.  Cox.  20  Q.  B.  D.  290  ; 
58  L.  T.  338  ;  36  W.  R.  505  ;  i  Fox,  84— D. 

Form  of  —  Residence   of  Freeman  —  Power 

«f  Amendment]  —  By  the  Reform    Act,  1832 

(2  k  3  Will  4,  c.  45),  s.  32,  no  freeman  of  a  city 

or  borough  is   entitled  to  be  registered  as  a 

parliamentary  voter  in  any  year    unless  **  he 

shall  have  resided  for  six  calendar  months  next 

previous  to  the  last  day  of  July  (now  by  the 

Parliamentary  and  Municipal  Registration  Act 

(41  k  42  Vict  c.  26),  s.  7, 15th  of  July),  in  such 

year  within  such  city  or  borough    or  within 

seven  statute  miles  from  the  place  where  the 

poll  for  such  city  or  borough  shall  heretofore 

nave  been  taken."    A  notice  of  objection  was 

served  on  a  freeman  of  Norwich  dated  August  12, 

and  containing  as  the  ground  of  objection  the 

statement "  That  you  do  not  reside  at  12,  Clifton 

Street,  Norwich."    The  revising  barrister  held 

that  the  notice  was  sufficient,  but  amended  it 

by  substituting  in  it  the  words  "  That  you  have 

not  resided  at  12,  Clifton  Street,  Norwich,  for 

fix  calendar  months  next  preceding  the   15th 

day  of  July  last,  and  that  you  have  not  through- 

«xt  that   period    resided  within    the    city    of 

Norwich  or  seven  miles  thereof  "  : — Held,  that 

the  notice  was  bad,  that  the  defect  in  it  was 

not  a  **  mistake "  within  the  meaning  of  the 

Parliamentary  and  Municipal  Registration  Act, 

1878  (41  k  42  Vict.  c.  26),  s.  28,  sub-s.  2.  and  that 

the  revising  barrister  had  no  power  to  amend. 

Bridge*  v.  Miller,  20  Q.  B.  D.  287  ;  57  L.  J., 

Q.  B.  125 :  58  L.  T.  405 ;  36  W.  R.  509  ;  52  J.  P. 

£18;  lFox,  47— D. 

- —  Description  of  Objector.]  —  A  notice 
of  objection  was  signed :  "  R.  B.  on  the  list 
of  parliamentary  voters  for  the  parliamentary 
borough  of  Battersea  and  Clapham."  The 
borough  of  Battersea  and  Clapham  consists  of 
two  divisions,  those  of  Battersea  and  Clapham, 
tad  contains  two  parishes,  those  of  St.  Mary, 
Battersea,  and  Clapham.  The  Battersea  division 
is  wholly  in  the  parish  of  St.  Mary,  Battersea, 
the  Clapham  division  is  partly  in  that  parish 
and  partly  in  that  of  Clapham.  The  name  of 
the  objector  was  in  the  list  of  occupiers  for  the 
parish  of  Clapham  in  the  Clapham  division  : — 
Held,  that  the  notice  was  insufficient,  as  it  did 
not  state  the  parish  on  the  list  of  voters  for 
which  the  objector's  name  was  to  be  found. 
ffW  v.  Chandler,  20  Q.  B.  D.  297  ;  57  L.  J., 
Q.  B.  126 ;  36  W.  R.  522 ;  52  J.  P.  520  ;  1  Fox, 
«1-D. 

A  notice  of  objection  to  a  county  vote  was 
signed :  •■  G.  C,  of  Churchyard,  on  the  list  of 
parliamentary  voters  for  the  parish  of  Peters- 
field  " : — Held,  that  the  place  of  abode  of  the 
objector  was  insufficiently  described  under  the 
Begistration  Act,  1885  (48  Vict.  c.  15),  s.  18, 
8ched.  2,  Form  I.,  No.  2.  Humphrey  v.  Earle, 
20Q.  B.  D.  294  ;  57  L.  J..  Q.  B.  124 ;  58  L.  T. 
403 ;  36  W.  R.  510 ;  52  J.  P.  518  ;  1  Fox,  39— D. 

Where  the  witness  to  a  claim  for  the  lodger 
franchise  described  himself  therein  as  "  agent," 
he  being,  in  fact,  a  registration  agent,  and  the 
writing  barrister  amended  accordingly,  although 
holding  the  original  description  sufficient : — 
Held,  that  the  description  of  '*  agent "  was  suffi- 


cient.    Campbell  v.  Chambers,  22  L.  R.,  Ir.  460 — 
C.  A. 


Omission    of  Bate.]  —  Where   a   notice 


of  objection  to  a  person  on  the  list  of  voters 
for  any  county  is  delivered  to  overseers  and 
is  defective  under  the  Parliamentary  Regis- 
tration Act,  1843,  s.  7,  the  defect  is  not  cured  by 
the  publication  by  the  overseers,  under  s.  18,  of 
the  name  of  the  person  objected  to.  The  omis- 
sion of  a  part  of  the  date  from  such  a  notice  is 
a  defect  which  invalidates  it,  and  cannot  be 
amended.  Freeman  v.  Newman,  12  Q.  B.  D.  373  ; 
53  L.  J.,  Q.  B.  108  ;  51  L.  T.  396  ;  32  W.  R. 
246  ;  1  Colt.  342— D. 


Specifying  List.] — A  notice  of   objec- 


tion given  to  overseers  was  to  the  names  "  in 
the  Blockhouse  List,"  "Division  1."  There 
are  three  lists  of  Parliamentary  voters  for  the 
Blockhouse : — firstly,    householders    and    occu- 

Eiers  ;  secondly,  freemen  ;  and,  thirdly,  lodgers ; 
ut  the  only  one  of  these  which  is  divided  is  the 
first : — Held,  that  the  notice  did,  at  all  events, 
sufficiently  specify  the  list,  to  which  the  objec- 
tion referred,  to  authorize  an  amendment  by 
the  revising  barrister  under  s.  28,  sub-s.  2  of 
41  &  42  Vict.  c.  26.  Bollen  v.  Soutludl,  15 
Q.  B.  D.  461  ;  54  L.  J.,  Q.  B.  589  ;  34  W.  R.  45  ; 
49  J.  P.  119  ;  1  Colt.  368— D. 


e.  Revising:  Barrister. 

Late  Publication  of  Claims  by  Overseer.]— 

An  overseer  received  claims  in  due  times  from 

occupiers    and   from    lodgers    not   already  on 

the  register,  but  published  a  list  of  them  some 

'  days  after  the  time  specified  in    the    second 

Schedule,  part  2  of  the  Registration  Act,  1885  : 

— Held,  that  this  did  not  invalidate  the  lists, 

and  that  the  revising  barrister  was   right    in 

!  accepting  and  revising  them.     Well*  v.  Stan- 

forth,  16  Q.  B.   D.  244  ;  55  L.  J.,  Q.  B.  12;  54 

L.  T.  183 ;  50  J.  P.  631 ;  1  Colt,  451— D. 

Declaration  aa  to  Misdescription— Reception 

j  otV   as  Evidence.] — A  declaration  by  a  person 

!  entered  on  a  list  of  voters  as  to  a  misdescription 

in  such  list  cannot  be  received  as  evidence  by  a 

'  revising  barrister,  unless  it  has  been  sent  within 

1  the  statutory  times  to  the  town  clerk  or  clerk  of 

the  peace.    DaHng  v.  Vraner,  16  Q.  B.  D.  252  ; 

55  L.  J.,  Q.  B.  11  ;  34  W.  R.  366  ;  1  Colt.  455 

— D. 

I 

i     Powers  of  Amendment — Altering  Nature  of 
Qualification.] — In  a  list  of  voters,  the  nature 
1  of  the  appellant's  qualification  was  described 
in  the  third  column  as  "  dwelling-house,"  and 
!  in  the  fourth  column  the  name  and  situation 
of  the  qualifying  property  were  described  as 
"5,    Victoria  Cottages."    The    respondent  ob- 
jected to  the  appellant's  name  being  retained 
.  on  the    list,  whereupon    the    appellant  asked 
!  the    revising    barrister    to    amend    the    third 
|  column    of    the    list    by    altering    4t  dwelling- 
house  "  to  "  dwelling-houses  in  succession,"  and 
,  the  fourth  column  by  altering  "  5,  Victoria  Cot- 
I  tages  "  to  "  High  Street,  Wapping,  and  5,  Victoria 
Cottages."    The  appellant  had   not  sent  in  a 
|  declaration  under  s.  24  of  the  Parliamentary  and 
Municipal  Registration  Act,  1878.    The  barrister 
{ refused   to  amend  : — Held,  that   the  barrister 


715 


ELECTION    LAW— Parliamentary. 


71ft 


was  right,  as  the  amendment  would  alter  the 
nature  of  the  qualification ;  and  the  effect  of 
s.  28,  sub-s.  13  of  the  act  of  1878,  on  sub-s.  1  of 
that  section,  is  to  limit  the  power  of  making 
such  an  amendment  to  cases  in  which  a  declara- 
tion has  been  duly  sent  in  under  s.  24  of  that 
act.  Porrett  v.  Lord  (5  C.  P.  D.  65)  disap- 
proved.  Fo*kctt  v.  Kaufman,  16  Q.  B.  D.  279  ; 
55  L.  J.,  Q.  B.  1 ;  54  L.  T.  64  ;  34  W.  R.  90  ;  50 
J.  P.  484 ;  1  Colt.  466— C.  A. 


Tenement  and  Garden.] — In  the  over- 


seers' list  of  occupiers  entitled  to  vote  for  a 
division  of  a  county,  the  *'  nature  of  the  quali- 
fication "  of  a  voter  was  described  as  "  tenement 
and  garden,"  and  the  "  description  of  the  quali- 
fying property  "  was  stated  to  be  "  part  bailiffs 
tenement."  An  objection  was  taken  that  the 
nature  of  the  qualification  was  wrongly  described. 
It  was  proved  before  the  revising  barrister  that 
the  voter  was  an  inhabitant  occupier  of  a  part 
of  a  dwelling-house,  and  the  barrister  amended 
the  list  by  striking  out  the  word  "  dwelling- 
house"  before  "tenement" :— Held, that, looking 
at  the  whole  entry,  the  words  "tenement  and 
garden  "  might  fairly  be  read  as  intended  to  be 
used  in  the  vulgar  but  inaccurate  sense  of  a 
small  house,  and  to  describe  the  qualification 
arising  from  the  occupation  of  a  dwelling-house, 
and  consequently  that  the  barrister  had  power  to 
amend  the  entry  as  he  had  done  for  the  purpose 
of  more  accurately  defining  the  qualification  : — 
But  held,  that  the  proper  alteration  would  have 
been  to  strike  out  the  words  •'  tenement  and 
garden,"  and  substitute  the  word  "  dwelling- 
house."  Dashwood  v.  Ayles,  16  Q.  B.  D.  295  ; 
55  L.  J.,  Q.  B.  8  ;  53  L.  T.  58  ;  34  W.  R.  53 ; 
50  J.  P.  132 ;  49  J.  P.  776  ;  1  Colt,  486— C.  A. 

In  the  overseers1  list  of  occupiers  entitled  to 
vote  for  a  division  of  a  county,  the  "  nature  of 
the  qualification  "  of  a  voter  was  described  as 
"  tenement  and  garden  "  and  the  "  description  of 
the  qualifying  property "  was  stated  to  be 
"School  Yard."  The  "nature  of  the  qualifica- 
tion "  of  thirty-three  other  voters  was  described 
in  the  same  way.  As  to  two  of  the  thirty-three 
the  "description  of  the  qualifying  property" 
was  stated  to  be  "  School  Yard,"  as  to  five  "  Cat 
Lane,"  as  to  three  "  High  Street,"  as  to  five 
"Bridge."  In  each  case  the  voter  occupied  a 
dwelling-house  and  garden  of  a  less  annual  value 
than  10Z. : — Held,  that,  looking  at  all  the  cases 
together,  the  revising  barrister  might  fairly  con- 
sider that  the  words  "  tenement  and  garden  " 
were  intended  to  describe  a  dwelling-house,  and 
that  he  had  power  to  amend  the  description  by 
striking  out  the  words  "  and  garden,"  and  insert- 
ing the  word  "  dwelling-house  "  before  "  tene- 
ment," though  it  would  have  been  better  to  strike 
out  "tenement"  also.  Mini  fie  v.  Banger,  16 
Q.  B.  D.  302  ;  65  L.  J.,  Q.  B.  10  ;  53  L.  T.  590  ; 
50  J.  P.  131 ;  1  Colt.  493— C.  A. 

Notioe  of  Objection.]  —See  Bridge*  v. 

Miller,  ante,  col.  713,  and  Freeman  v.  Newman 
and  Bollen  v.  Soutfiall,  col.  714. 

—  Homes  in  Succession — Omission  of  One.] 
— The  nature  of  the  qualification  of  a  voter  was 
described  on  the  parliamentary  list  as  "  dwelling- 
houses  in  succession,"  and  the  name  and  situa- 
tion of  the  qualifying  property  were  described  in 
the  fourth  column  of  the  list  "as  44,  Oxford 
Street  and  34,  Prospect  Place,  Cowick  Street." 


He  had,  in  fact,  occupied  three  houses  in  sac- 
cession  during  the  qualifying  period,  but  the 
overseer  by  mistake  omitted  to  specify  the  third 
house,  viz.  31,  Prospect  Place,  and  the  occupation 
of  the  two  only  as  they  appeared  on  the  list  was 
insufficient  to  give  the  vote.  These  facts  were 
proved  before  the  revising  barrister,  and  he  was 
asked  to  amend  the  fourth  column,  and  did  so  by 
striking  out  the  figures  "  44  "  and  "  34  "  :— Held 
by  Stephen  and  Cave,  JJ.  (Lord  Coleridge,  CJ.r 
dissenting),  that  under  41  &  42  Vict,  c  26,  a.  28, 
the  revising  barrister  had  refused  to  correct  the 
mistake,  although  it  should  not  have  been  cor- 
rected by  striking  out  the  numbers,  and  that 
the  list  should  be  amended  by  inserting  "and 
31  "  after  the  words  "Oxford  Street"  in  the 
fourth  column  of  the  list.  Ford  v.  Hoar,  14 
Q.  B.  D.  607  ;  54  L.  J.,  Q.  B.  286  ;  63  L.  T.  44 ; 
33  W.  R.  566  ;  49  J.  P.  103  ;  1  Colt.  351— D. 

Where  a  person's  right  to  be  admitted  to  the 
Parliamentary  franchise  depends  upon  his  occu- 
pation of  different  premises  in  immediate  suc- 
cession, his  claim  must  set  forth  and  describe 
the  several  qualifying  premises,  and  if  it  omit  to 
do  so,  the  revising  barrister  has  power,  under 
8.  4  of  the  Parliamentary  Registration  (Ireland) 
Act,  1885  (48  Vict.  c.  17),  to  amend  or  correct  it 
Demptey  v.  Keegan,  18  L.  R.,  Ir.  280^— C.  A. 

The  statements  of  facts  on  a  claim  to  be  ad- 
mitted to  the  Parliamentary  franchise  must  be 
sufficient  to  constitute  a  legal  franchise  of  some 
defined  character,  and  then,  if  the  proved  facts 
turn  out  to  be  insufficient  to  establish  a  legal 
!  franchise  of  that  character,  but  one  sufficient  to 
i  establish  a  legal  franchise  of  another  character. 
the  claimant  may  be  registered.  If  the  legal 
nature  of  the  qualification  derived  from  pre- 
mises mentioned  in  the  claim  is  not  sufficiently 
stated,  the  claim  can  be  amended ;  bat  no 
qualifying  property  which  is  not  mentioned 
can  be  added.  Melavgh  v.  Chambers,  20  L.  R., 
Ir.  286— C.  A. 

M.  claimed  to  be  registered  as  an  inhabitant 
"  occupier  "  in  respect  of  the  premises,  1 ,  Cottage- 
row,  in  the  borough  of  Londonderry.  The 
claim  described  the  qualifying  premises  as 
"  dwelling-house,  1,  Cottage- row,  in  immediate 
succession  from  dwelling-house,  Corbett-etreet, 
Londonderry."  It  was  proved  that  tf.  had 
gone  to  reside  at  No.  1  in  September,  1886, 
from  No.  8,  Cottage-row,  which  latter  premises 
be  had  occupied  for  about  three  weeks  imme- 
diately after  the  house  in  Corbett-street,  where 
he  had  resided  since  before  the  previous  20th 
July,  and  that  the  premises  so  immediately 
occupied  had  been  omitted  from  the  claim, 
owing  to  the  claimant's  considering  it  un- 
necessary to  mention  them : — Held,  that  the 
claim  was  defective  in  not  setting  out  all  the 
qualifying  premises,  and  that  the  revising  bar- 
rister had  no  power  to  amend  it  in  this  respect. 
lb. 

"  Successive  Occupation  "  inserted  by- 
Mistake. — The  qualification  of  a  voter  was  stated 
in  the  third  column  of  the  list  to  be  "  offices, 
successive  occupation/'  and  in  the  fourth  column 
"  High  Street  and  Charles  Street,1'  whereas  it 
was  proved  that  during  the  whole  of  the  quali- 
fying period  he  had  occupied  one  office  only, 
namely,  in  High  Street,  ana  would  have  had  by 
reason  of  such  occupation  a  good  and  sufficient 
qualification.  The  misdescription  was  an  error 
of   the   overseers  :  —  Held,  that    the  revising 


717 


ELECTION    LAW— Parliamentary. 


T18 


barrister  had  power  under  41  &  42  Vict.  c.  26, 
s.  28,  to  correct  the  mistake,  and  should  have 
amended  the  list  by  striking  out  the  words 
-wccesrive  occupation"  and  "  Charles  Street." 
Lynek  or  Blosse  v.  Wheatley,  14  Q.  B.  D.  504  ; 
54  L.  J.,  Q.  B.  289 ;  53  L.  T.  49 ;  1  Colt.  364— D. 

— -lodger  Claim— Amount  of  Bent.]— It  is 
essential  that  every  lodger  claimant  should  state 
whether  he  payB  rent  for  his  lodgings  or  not, 
whit  is  the  specific  amount  of  any  rent  he  pays, 
sod  to  whom  he  pays  it ;  and  in  the  event  of 
oil  occnpying  lodgings  without  paying  rent,  he 
mast  specifically  show  that  he  is  exonerated  by 
•fieemeot  from  doing  so  without  their  losing 
the  essential  character  of  lodgings.    A  claim  by 
i  lodger  under  31  &  32  Vict.  c.  49,  s.  4  (as  ex- 
tended by  48  Vict.  c.  3,  s.  7,  sub-s.  3),  in  the  form 
No.  31  in  schedule  1  to  the  Parliamentary  Re- 
gistration (Ireland)  Act,  1885  (48  Vict.  c.  17), 
dated  the  "  amount  of  rent  paid  "  at  "  10Z.  and 
upwards,  including  the  salary,"  and  another  like 
claim  by  another  lodger  stated  such  rent  as  "  101. 
•nd  upwards  "  only.    The  revising  barrister  was 
called  upon  by  the  claimants  to  amend  the  claims 
(as  having  been  so  filled  in  by  "  mistake  ")  by  in- 
viting specific  amounts  for  the  rents  payable, 
but  he  was  of  opinion  that  he  had  no  power  to 
do  so,  and  rejected  the  claim  : — Held,  that  the 
rerismg  barrister  had  power,  if  necessary,  to 
amend  the  claims  by  inserting  a  specific  sum  for 
the  rent  payable,  if  he  bad  sufficient  materials 
before  him  for  the  purpose.     Clarke  v.  TorUh 
18  L.  B.  207— C.  A. 

Power  to  Transfer  from  one  Lilt  to  another.] — 
Sect  15  of  the  Parliamentary  and  Municipal 
Registration  Act,  1878.  enacts  that  where  the 
whole  or  part  of  the  area  of  a  municipal  borough 

■  co-extensive  with  or  included  in  the  area  of 
a  parliamentary  borough,  the  lists  of  parlia- 
mentary voters  shall,  so  far  as  practicable,  be 
omde  oat  and  revised  together ;  and  specifies 
the  mode  in  which  overseers  of  parishes  shall 
make  out  the  lists.    By  sub-s.  2,  where  the  parish 

■  situate  wholly  or  partly  both  in  the  parlia- 
mentary borough  ana  the  municipal  borough, 
the  lists  shall  be  made  out  in  three  divisions  : 
Division  1  shall  comprise  the  names  of  the 
persona  entitled  both  to  be  registered  as  parlia- 
mentary voters  and  to  be  enrolled  as  burgesses  ; 
dhiskm  2  shall  comprise  the  names  of  the  persons 
entitled  to  be  registered  as  parliamentary  voters, 
hot  not  to  be  enrolled  as  burgesses ;  division  3 
mall  comprise  the  names  of  the  persons  entitled 
to  be  enrolled  as  burgesses,  but  not  to  be  regis- 
tered as  parliamentary  voters.  By  s.  28,  sub-s.  1 5, 
▼here  a  list  is  made  out  in  divisions  the  revising 
barrister  shall  place  the  name  of  any  person  in 
the  division  in  which  it  should  appear  according 
to  the  result  of  the  revision,  regard  being  had  to 
the  title  of  the  person  to  be  on  the  list  both  as  a 
Parliamentary  voter  and  a  burgess,  or  only  in 
one  of  those  capacities,  and  shall  expunge  the 
pane  from  the  other  division  (if  any),  in  which 
it  appears.  An  objection  in  respect  only  of  a 
voters  qualification  for  the  parliamentary  fran- 
chise having  been  taken  to  the  retention  of  his 
name  in  division  1,  the  revising  barrister  Btruck 
the  name  off  division  1 ;  and  was  thereupon 
mked  to  place  it  in  division  3,  but  refused  so  to 
do  unless  proof  was  given  of  a  qualification 
wtitltng  the  Toter  to  be  on  the  burgess  roll : — 
Head,  that  the  decision  of  the  revising  barrister 


was  right,  and  that  he  was  not  bound,  under 
s.  28,  sub-s.  15,  to  place  the  name  in  division  3. 
Orecnway  v.  Bachelor,  12  Q.  B.  D.  376;  63 
L.  J.,Q.  B.,  179;  50  L.  T.  270;  32  W.  R.  320; 
1  Colt  322— D. 

Appearance  before,  by  Agent.] — At  the  hearing 
of  an  objection  to  a  voter's  name  being  retained 
on  a  list  of  parliamentary  voters,  B.  stated  that 
he  appeared  on  behalf  of  the  voter  and  refused 
to  answer  a  question  put  to  him  by  the  objector, 
whether  or  not  he  had  been  requested  by  the 
voter  to  appear  on  his  behalf  ;  and  the  revising 
barrister  declined  to  order  him  to  answer  the 
question,  and  allowed  him  to  give  evidence  in 
support  of  the  voter's  qualification  : — Held,  that 
sub-s.  11  of  41  &  42  Vict.  c.  26,  s.  28,  does  not 
require  that  a  person  appearing  on  behalf  of  a 
person,  against  whom  objection  is  made,  should 
have  been  personally  authorised  to  do  so.  Quaere, 
whether  under  the  sub-section  any  authority  is 
necessary.    Ford  v.  Smcrdon,  49  J.  P.  760 — D. 


2.  ELECTION  OF  MEMBERS, 
a.  The  Poll. 

Ballot  Paper— Absenoo  of  OiReial  Mark.] — A 
ballot  paper  which  conforms  in  other  respects  to 
the  requirements  of  the  Ballot  Act,  1872  (35  & 
36  Vict.  c.  33),  is  not  void  because  it  has  not  on 
the  face  of  it  the  official  mark  directed  by  s.  2 
of  that  act  to  be  marked  on  both  sides  of  the 
ballot  paper.  Pickering  v.  James  (8  L.  R.,  0. 
P.  489)  considered.  Ackers  v.  Howard,  16 
Q.  B.  D.  739 ;  56  L.  J.,  Q.  B.  273 ;  54  L.  T. 
651 ;  34  W.  R.  609  ;  50  J.  P.  519— D. 

Voting  Twice— Effeot  o£]  —  It  was  proved 
that  a  vote  had  been  given  by  some  unknown 
person  in  the  name  of  a  voter,  W.,  for  the  re- 
spondent. W.  afterwards  voted  for  the  peti- 
tioner : — Held,  that  a  vote  must  be  added  to  the 
petitioner's  number  and  a  vote  deducted  from 
the  respondent.  St.  Andrews  Election,  4  O'M. 
&  H.  32. 

A  voter,  whose  name  appeared  twice  in  the 
register,  voted  twice  for  the  petitioner  under  a 
mistaken  notion  that  he  was  entitled  to  do  so : 
— Held,  that  the  first  vote  was  good  and  the 
second  bad.    lb. 

8.  B.  having  voted  in  the  Stepney  Division 
and  then  in  Whitechapel : — Held,  that  the  first 
vote  was  good,  and  that  the  second  did  not, 
unless  given  with  a  corrupt  intention,  involve 
the  offence  of  personation.  Where  a  voter's 
name  is  wrongly  placed  upon  the  register  for 
two  divisions  of  the  same  borough  he  is  entitled 
to  elect  in  which  he  will  vote.  Isaacson  v. 
Dvrant.  54  L.  T.  684  ;  4  O'M.  &  H.  34— Denman 
and  Field,  J  J. 

Reasonable  time  to  Vote.] — See  Aylesbury 
Division  of  Bucks  Election,  4  O'M.  &  H.  59. 


b.  Returning  Officer. 

Taxation  of  Charges.]— At  a  parliamentary 
election  the  high  sheriff  was  the  returning  officer, 
the  duties  being  performed  on  his  behalf  by  a 
firm  of  solicitors,  one  of  whom  was  under-sheriff. 
The  returning  officer's  charges  included  a  charge 


719 


ELECTION    LAW— Parliamentary. 


720 


for  professional  assistance  rendered  to  him  by 
the  under-sheriffs  firm,  which  was  disallowed 
on  taxation,  on  the  ground  that  no  detailed 
.account  was  sent  in  to  the  returning  officer 
within  fourteen  days  of  the  return,  as  required 
by  s.  5  of  the  Returning  Officers  Act,  1875 : — 
Held,  that  the  charge  was  wrongly  disallowed 
on  the  above  ground,  the  section  not  being 
applicable  as  between  the  returning  officer  and 
the  candidates  to  charges  made  for  work  done 
for  the  returning  officer  by  his  own  agents. 
Essex  Election  (South- Eastern  Division),  In  re, 
19  Q.  B.  D.  252 ;  56  L.  J.,  Q.  B.  356 ;  57  L.  T. 
104  ;  36  W.  R.  44— D. 

The  right  of  a  returning  officer  under  8.  2  of 
the  same  Act  to  be  paid  his  reasonable  charges 
and  expenses  is  not  limited  to  such  charges  only 
as  have  been  vouched  under  ss.  4  and  5  of  the 
act,  nor  is  a  charge  made  by  him  to  be  disallowed 
merely  because  in  the  account  sent  in  by  him  to 
the  candidates  it  appears  under  a  wrong  heading. 
A  returning  officer  is  not  limited  to  charging  for 
such  services  and  expenses  as  come  verbatim  et 
literatim  within  the  description  in  the  schedule 
to  the  act,  if  .they  are  services  and  expenses  of 
one  of  the  kinds  mentioned  in  the  schedule.    lb. 

A  charge  for  storing  ballot-boxes  from  one 
election  to  another  in  order  to  avoid  the  expense 
of  procuring  fresh  ones  was  therefore  allowed, 
although  no  such  charge  is  expressly  provided 
for  in  the  schedule  to  the  act.    lb. 

A  returning  officer  at  a  parliamentary  election 
is  not  entitled  to  remuneration  for*  personal 
services  rendered  by  him  in  the  conduct  of  the  , 
.election,  under  the  heading  of  professional  or . 
other  assistance,  which  he  has  not  as  a  matter  of 
fact  employed.     Slwreditch  {Iloxton  Division)  ■ 
Election.  In  re,  Walker,  Ex  parte,  56  L.  T.  521) 
— D 


Time  for  Application—"  Apply  to  the 

Court."]— By  s.  4  of  38  &  39  Vict.  c.  84,  it  is 
enacted  that  an  application  to  tax  the  returning 
officer's  charges  at  a  parliamentary  election  may 
be  made,  within  fourteen  days  from  the  delivery 
of  the  account,  to  the  county  court  having  juris- 
diction at  the  place  of  nomination  for  the  elec- 
tion :— Held,  that  an  application  made  within 
the  time  specified  to  the  registrar  of  the  county 
court  when  the  judge  was  not  sitting  was 
properly  made.  Reg.  v.  Bloomtbury  County 
Court  Judge.  56  L.  T.  321  ;  51  J.  P.  212—  C.  A. 
Affirming  17  Q.  B.  D.  778  ;  55  L.  J.,  Q.  B.  443 
— D. 


Power  to  Review.] — Where  the  accounts 


Where  a  meeting  is  held  or  other  expenses  are 
incurred  with  the  object  of  inducing  a  person  to 
become  a  candidate  at  an  election,  the  question 
whether  the  costs  of  the  meeting  and  other  ex- 
penses are  "  election  expenses "  is  one  which 
must  be  answered  in  relation  to  the  particular 
circumstances  of  the  case.  Birkbeck  v.  BuUard, 
54  L.  T.  625  ;  4  O'M.  &  H.  84. 

Persons  Paid  to  Keep  Order.]— Money  paid 
by  an  agent  of  a  candidate  for  the  employment 
of  persons  to  keep  order  at  meetings  connected 
with  the  election  is  an  expense  connected  with 
the  management  and  conduct  of  an  election, 
within  the  meaning  of  s.  28  of  the  Corrupt  and 
Illegal  Practices  Prevention  Act,  1883.  Packard 
v.  Collings,  54  L.  T.  619  ;  4  O'M.  &  H.  70. 

Registration  Expenses — Starting  a  news- 
paper.]— Expenses  incurred  by  a  candidate  as  a 
subscription  to  registration  expenses  need  not  be 
returned  as  election  expenses.  A  candidate  at 
the  geneial  election  of  1885  established  a  news- 
paper in  Aug.,  1885,  which  ceased  to  appear  in 
Jan.,  1886  : — Held,  that  losses  incurred  in  con- 
nexion  therewith  need  not  be  returned  as  elec- 
tion expenses.  Crossman  v.  Gent  'Davis.  54  L.T. 
628  ;  4  O'M.  &  H.  93. 

Disputed  Claims,  Payment  of— Hotiee  of  Ap- 
plication for  Leave.] — An  application  on  behalf 
of  a  candidate  at  a  parliamentary  election  for  an 
order  of  the  High  Court  for  leave  to  pay  a  dis- 
puted claim  within  s.  29,  sub-s.  7,  of  the  Corrupt 
and  Illegal  Practices  Prevention  Act,  1883,  will 
not  be  granted  without  due  notice  to  the  candi- 
date on  the  other  side,  the  returning  officer,  and 
the  constituency  at  large,  by  public  advertise- 
ment or  otherwise.  South  Shropshire  Election, 
In  re,  54  L.  T.  129  ;  34  W.  B.  352— D. 


of  a  returning  officer  have  been  taxed  by  the 
registrar  of  a  county  court  under  the  Parlia- 
mentary Elections  (Returning  Officers)  Act, 
1876  (38  &  39  Vict.  c.  84),  s.  4,  the  county  court 
judge  has  no  jurisdiction  to  review  the  registrar's 
taxation.  Ileg.  v.  Lambeth  County  Court  Judge, 
17  Q.  B.  D.  96— D.     See  49  &  50  Vict.  c.  57. 


o.  Election  Expenses. 

What  are.] — A  trivial  expense,  not  authorised 
by  the  schedule  to  the  Corrupt  and  Illegal  Prac- 
tices Prevention  Act,  1883.  and  returned  amongst 
"  election  expenses "  is  not  necessarily  illegal. 
Isaacson  v.  Durant,  54  L.  T.  684  ;  4  O'M.  &  H. 
34— Denman  and  Field,  JJ. 

Meeting  to  induce  Person  to  be  Candidate.]—  j 


.  d.  Election  Petition. 

Trial— Change  of  Venue — "  Special   Circum- 
|  stances."] — Where  the  allegations  of  fact  in  a 
!  parliamentary  election  petition  are  not  in  dis- 
!  pute  but  are  specifically  admitted   by  the  re- 
spondent so  as  to  render  it  unnecessary  at  the 
trial  to  call  witnesses  from  the  district  in  which 
,  the  election  took  place,  the  court  may  order  the 
petition  to  be  tried  in  London  on  the  ground 
!  that  "  special  circumstances  *'  exist  within  the 
meaning  of  s.  11,  sub-s.  11,  of  the  Parliamentary 
Elections  Act,  1868  (31  &  32  Vict,  a  126),  which 
j  render  it  desirable  that  the  petition  should  be 
tried  elsewhere  than  in  the  county  or  division 
where  the  election  took  place.  Arch  v.  Bcntinck, 
18  Q.  B.  D.  548  ;  56  L.  J.,  Q.  B.  458  ;  56  L.  T. 
360  ;  35  W.  R.  476— D. 

Examination  of  Voting  Paper.] — It  is  com- 
petent for  the  judges  at  the  hearing  of  an  election 
petition  to  examine  a  voting  paper  before  the 
vote  given  thereupon  is  proved  to  have  been  bad. 
The  provisions  of  the  Ballot  Act  against  inspect- 
ing voting  papers  do  not  applv  to  the  court. 
Isaacsmi  v.  Durant,  54  L.  T.  684  ;  4  O'M.  &  H. 
34 — Denman  and  Field,  JJ. 

Evidence  of  Voting.] — The  statement  on  oath 
of  a  voter  that  he  had  voted  in  two  divisions  of 
the  same  borough  is  evidence  of  the  vote  given 


721 


ELECTION    LAW— Parliamentary. 


722 


in  the  latter  division,  without  the  further  pro- 
duction of  the  voting  paper.    lb. 

tolling  Witnesses— Conduct  of  Cue.]— To  call 
the  respondent  and  hi*  agents  as  the  sole  wit- 
nesses in  support  of  a  petition,  and  to  treat  them 
at  hostile  witnesses,  is  not  the  proper  waj  to 
conduct  a  petition.  Grossman  v.  GenUDavis, 
supra. 

Agwey.] — Where  the  petitioner  makes  out  a 
■prima  facie  case  of  agency,  it  must  be  accepted 
unless  rebutted  by  the  respondent,  Birkbeck  v. 
Bvllard,  supra.  *8ee  also  Aylesbury  Division  of 
£%eis,  4  O'M.  &.  H.  59. 

Bribery.] — In  a  case  where  bribery  is  proved 
the  court  nas  no  power  to  report,  under  s.  22  of 
Che  Corrupt  and  Illegal  Practices  Prevention 
Act.  1883,  that  the  offence  is  of  a  trivial  nature, 
and  ought  not  to  void  the  election.  Birkbeck  v. 
Bulla  rd,  supra. 


for  a  given  candidate  is  bribery,  and  the  Cor- 
rupt and  Illegal  Practices  Prevention  Act,  1883, 
has  not  altered  the  law  in  this  particular. 
Packard  v.  Colling*,  supra. 

Illegal  Employment — What  is.]— D.  and  his 
agents  gave  gratuitous  refreshments  to  certain 
persons  styled  "  workers "  at  a  parliamentary 
election  at  which  D.  was  a  candidate : — Held, 
that  this  was  an  illegal  employment  within  8.  17 
of  the  Corrupt  and  Illegal  Practices  Prevention 
Act.  1883,  and  rendered  the  election  of  D.  void. 
Schneider  v.  Duncan,  54  L.  T.  618  ;  4  O'M.  &  H. 
76. 

The  employment  of  i^rsons  to  keep  order  at 
meetings  connected  witn  an  election  is  an  illegal 
employment  within  the  meaning  of  s.  17  of  the 
Corrupt  and  Illegal  Practices  Prevention  Act, 
1883.     Packard  v.  Colling s,  supra. 


Boservtag   Points  of  Law  J 
Mmcard,  4  Ol.  &  H.  65. 


•Sec  Ackcrx  v. 


Intimidation   by   Rioting.] 
Howard,  4  O'M.  &  H.  65. 


See    Ackers  v. 


Pnblie  ProMeator — Cross-examination  on  be- 
inlf  otj — The  public  prosecutor  is  not  entitled 
to  administer  a  general  cross-examination,  with- 
out definite  object,  to  every  witness  called  in  the 
course  of  the  hearing  of  a  petition.  Cross- 
crimination  with  the  view  of  showing  that  a 
mistake  has  been  made  in  giving  to  one  voter 
the  paper  intended  for  another  is  not  admissible. 
Isaacson  v.  Dttrant,  supra. 

Costs.] — Where  a  petition  is  utterly  un- 
founded the  costs  of  the  public  prosecutor  will 
be  ordered  to  be  paid  by  the  petitioner.  Cross- 
JSAn  v.  Gent -Da  vis,  supra. 

An  overloaded  petition  will  be  visited  with 
costs,  even  if  it  is  successful.  Birkbeck  v. 
Bullard,  supra.  See  also  Ackers  v.  Howard, 
4  OH.  t  H.  65. 


Treating — What  is.  ] — Treating  is  not  the  en- 
tertainment of  equals  by  equals,  but  of  an  in- 
ferior by  a  superior  with  the  object  of  securing 
the  goodwill  of  the  inferior  (per  Cave,  J.). 
Birkbeck  v.  Bullard,  54  L.  T.  625  ;  4  O'M.  &  H. 
84. 

Effect  of.] — General  bribery  and  treating 


—  Withdrawal  of  Petition— Higher  Scale.] 
—The  43rd  section  of  the  Corrupt  and  Illegal 
Practices  Prevention  Act,  1883,  applies  only  to 
the  costs  of  the  director  of  public  prosecutions  at 
the  trial  of  the  petition,  and  when  the  petition  is 
withdrawn  the  court  has  no  power,  under  the 
41it  section  of  the  Parliamentary  Elections  Act, 
1861,  to  order  the  preliminary  costs  of  the  direc- 
tor of  public  prosecutions,  and  the  costs  of  the 
inquiries  made  by  him  to  be  paid  by  the  parties. 
Under  the  44th  section  of  the  Corrupt  and  Illegal 
Practices  Prevention  Act,  1883,  the  costs  of  an 
election  petition  will  usually  be  allowed  op  the 
higher  scale,  in  accordance  with  the  old  practice 
wider  the  4 1st  section  of  the  Parliamentary  Elec- 
tions Act,  1868.  Paseoe  v.  Pule*ton,  54  L.  T. 
733 ;  50  J.  P.  134. 


e.  Corrupt  Practice*. 

Bribery.] — A  single  case  of  bribery  by  an 
*gent  renders  an  election  void.  A  circular 
letter  addressed  by  a  candidate  to  his  con- 
stituents most  not  be  interpreted  with  the  same 
strictness  as  a  commercial  document.  Birkbeck 
▼.  Bullard,  supra.  See  also  Aylesbury  Division 
*f  Burks,  4  CM.  &H.  59. 

To  offer  a  voter  his  travelling  expenses  with 
tbt4ntention  of  inducing  him  to  come  and  vote 


will  void  an  election  if  proved  to  have  existed 
upon  the  side  of  a  successful  candidate.  Semble, 
that  if  general  bribery  and  treating  are  proved, 
it  is  the  duty  of  the  judges  to  report  the  preva- 
lence of  extensive  corruption.  Packard  v.  CoU 
lings,  54  L.  T.  619  ;  4  O'M.  &  H.  70,  and  see 
Aylesbury  Division  of  Bucks,  4  O'M.  &  H.  59. 

f.  Criminal  Law  relating*  to. 

Indictment  for  "Corrupt  Practices" — Be- 
scription  of  Offence.] — In  an  indictment  for  a 
"  corrupt  practice  "  within  the  meaning  of  s.  3 
of  the  Corrupt  and  Illegal  Practices  Prevention 
Act,  1883,  it  is  necessary  to  specify  the  particular 
offence  with  which  the  prisoner  is  charged.  Meg. 
v.  Strtmlger,  17  Q.  B.  D.  327  ;  55  L.  J.,  M.  C. 
137  ;  55  L.  T.  122  ;  34  W.  E.  719  ;  51  J.  P.  278  ; 
16  Cox,  C.  C.  85— C.  C.  R. 

An  indictment  charged  that  at  a  parliamentary 
election  the  prisoner  was  u  guilty  of  corrupt  prac- 
tices against  the  form  of  the  statutes  in  that  case 
made  and  provided."  The  jury  found  the  pri- 
soner guilty  of  corrupt  practices  by  offering 
money  for  votes.  After  verdict  it  was  objected 
that  the  indictment  was  bad,  because  it  did  not 
sufficiently  describe  the  nature  of  the  offence 
with  which  the  prisoner  was  charged: — Held, 
per  Lord  Coleridge,  C.J.,  and  Mathew,  J.,  that 
the  indictment  was  bad  for  insufficient  descrip- 
tion of  the  offence  charged,  but  that  the  defect 
was  cured  by  verdict ;  per  Field,  J.,  that  the 
indictment  was  good,  but  that,  if  not,  the  defect 
was  cured  by  verdict ;  per  Denman,  J.,  and 
Day,  J.,  that  the  indictment  was  bad,  and  that 
the  defect  was  not  cured  by  verdict.    lb. 

An  indictment  under  the  Corrupt  and  Illegal 
Practices  Prevention  Act,  1883,  which  merely 
charges  the  defendant  with  being  guilty  of  a 
corrupt  practice  at  an  election,  but  does  not 
specifically  allege  against  him  what  that  corrupt 
practice  was,  is  bad  for  generality.  Reg,  v. 
Norton,  16  Cox,  C.  C.  59—  Pollock,  B. 


728 


ESTATE. 


724 


Personation— Application  for  Ballot  Paper  in 
assumed  Hame.J — If  at  a  parliamentary  elec- 
tion a  man  applies  to  the  presiding  officer  for  a 
ballot  paper  in  a  name  other  than  his  name  of 
origin,  or  in  the  name  by  which  he  is  generally 
known,  but  in  a  name  which  appears  on  the 
register  of  voters,  and  which  was  inserted  therein 
by  the  overseers  in  the  belief  that  it  was  the 
name  of  the  applicant,  and  for  the  purpose 
of  putting  him  on  the  register,  he  is  entitled  to 
vote,  and  is  not  a  person  who  "  applies  for  a  ballot 
paper  in  the  name  of  some  other  person,  whether 
that  name  be  that  of  a  person  living  or  dead,  or 
of  a  fictitious  person,"  so  as  to  be  guilty  of  the 
offence  of  personation  within  the  meaning  of 
8.  24  of  the  Parliamentary  and  Municipal  Elec- 
tions Act,  1872,  or  the  Corrupt  and  Illegal  Prac- 
tices Prevention  Act,  1883.  Reg.  v.  Fox,  16  Cox, 
C.  C.  166— Hawkins,  J.  See  also  Isaacson  v. 
Durrani,  ante,  col.  718. 


Appointment  of  Presiding  Officer.] — In 

order  to  sustain  a  conviction  for  personation  it  is 
not  necessary  to  state  in  the  indictment,  or  to 
prove  at  the  trial,  that  the  presiding  officer  at 
the  booth  where  the  offence  was  committed  was 
duly  appointed.  Semble,  the  appointment  of  a 
presiding  officer  need  not  be  in  writing.  Reg.  v. 
Garvey,  16  Cox,  C.  C.  252— Ir.  C.  C.  B. 


EQUITY  TO  A   SETTLE 

MENT. 

See  HUSBAND  AND  WIFE. 


ENTRY. 

See  EVIDENCE. 


on  the  death  in  1880  of  the  surviving  son  of  the 
marriage : — Held,  that,  if  under  the  ultimate 
limitation  the  wife  took  the  estate  as  a  pur- 
chaser, Mandeville**  ease  (Co.  Litt.  26  b.)  did 
not  apply,  and  that  the  descent  from  her  would 
be  traced  in  the  ordinary  way,  and  not  ex  parte 
materna.  But  held,  that,  under  the  ultimate 
limitation,  the  wife  took  the  estate  as  part  of 
the  old  estate  which  she  had  before  the  marriage, 
and  that  the  descent  was  not  broken  by  the 
settlement.  Moore  v.  SimMn,  31  Ch.  D.  95 ;  56 
L.  J.,  Ch.  305  ;  53  L.  T.  815  ;  34  W.  B.  254- 
Pearson,  J. 

A  testator  who  died  in  1853,  devised  as  hi* 
own  an  estate  which  had  devolved  on  his  late 
wife  in  fee  as  heiress-at-law  of  her  mother. 
The  devise  was  to  trustees  in  fee,  on  trust  to 
i  pay  the  rents  to  the  testator's  only  son  and  to- 
I  his  two  daughters  in  equal  shares,  and  to  the 
survivors  or  survivor  of  them,  with  remainder 
on  trust  for  the  children  of  the  son  and  the 
daughters  respectively  in  fee,  with  an  ultimate 
remainder  unto  and  to  the  use  of  the  testator's 
own  right  heirs.  The  son  and  both  the  daughters 
survived  the  testator,  but  they  all  died  without 
issue.  The  son  survived  the  daughters,  and  died 
intestate.  He  was  the  heir-at-law  of  his  father, 
and  also  of  his  mother.  The  testator  had  also 
devised  real  estate  of  his  own  to  the  son,  who 
elected  to  confirm  the  will :— Held,  that  the 
equitable  estate,  which  the  son  took  under  the 
will,  and  by  virtue  of  his  election,  merged  in 
the  legal  estate  which  descended  to  him  from  his 
mother,  and  that  the  descent  was  regulated  by 
the  legal  estate,  and  that,  consequently,  on  his 
death  intestate  and  without  issue,  the  property 
descended  to  the  heir  of  his  maternal  grand- 
mother, who  was  the  last  purchaser  of  the  legal 
estate,  and  not  to  his  own  heir.  Douglas,  In  re, 
Wood  v.  Douglas,  28  Ch.  D.  327  ;  54  L.  J.,  Ch. 
421 ;  52  L.  T.  131  ;  83  W.  B.  390— Pearson,  J. 

Descent  of— Construction  of  Settlement]— St* 

Settlement. 

Tenants   for   Life  —  Bemainderman.]  —  See 
Tenant. 

Joint  Tenancy  —Severance  oi] — See  Tehabt. 


ESTATE. 

Besoent  ex  parte  Materna  or  ex  parte  Pa- 
tera*.]—S.  4  of  the  Inheritance  Act  (3  &  4  Will.  4, 
c.  106),  is  not  merely  declaratory  of  the  old 
law  ;  it  introduces  a  new  rule  as  to  the  tracing 
of  the  descent  in  the  case  of  a  limitation  to  the 
heirs  general  of  a  deceased  person.  By  a  mar- 
riage settlement  executed  in  1810,  real  estate  of 
the  wife  was  limited  to  the  use  of  the  husband 
for  life,  remainder  to  the  use  of  the  wife  for  life, 
and,  after  limitations  in  favour  of  the  issue  of 
the  marriage,  the  ultimate  limitation  was  "  to 
the  use  of  the  right  heirs  of  J.  W.,  deceased  (the 
mother  of  the  wife),  for  ever."  At  the  date  of 
the  settlement  the  wife  was  seised  of  part  of  the 
real  estate  as  the  heiress-at-law  of  her  deceased 
mother,  and  of  the  other  part  as  one  of  the  co- 
heiresses of  her  deceased  maternal  great  uncle. 
The  wife  died  in  1846  ;  the  husband  died  in  1871. 
The  limitations  in  favour  of  the  issue  all  failed 


ESTOPPEL. 

I.  By  Becord. 

1.  General  Principles,  724. 

2.  Against  what  Parties,  727. 

3.  In  what  Cases,  728. 

II.  By  Deed,  732. 

III.  By  Matter  in  Pais,  735. 

I.  BY    BBCOBD. 
1.  General  Principles, 

Meaning  of  Doctrine  at  to  Boa  Judicata.]— 
The  doctrine  of  res  judicata  does  not  apply  only 
where  there  is  a  record.    It  is  one  of  the  most 


725 


ESTOPPEL— By  Record. 


726 


fundamental  doctrines  of  all  courts  that  there 
most  be  an  end  to  litigation,  and  that  the  parties 
tare  no  right  of  their  own  accord  after  haying 
tried  a  question  between  them  and  obtained  a 
decision  of  the  court,  to  start  that  litigation  over 
again  on  precisely  the  same  questions.  May,  In 
re,  ttwr,  Ex  parte,  28  Ch.  D.  518 ;  54  L.  J., 
Ch.  338 ;  52  L.  T.  79 ;  33  W.  R.  917.— Per  Lord 
fther,M.R. 

8aae  Litigant  setting  up  Opposite  Construc- 
ts of  Deed.]  —Where  a  litigant  has  obtained 
the  decision  of  the  court  on  the  construction  of 
a  deed  in  his  favour,  he  cannot  ask  the  court  in 
a  subsequent  action  to  put  an  opposite  construc- 
tion on  the  same  deed.  Oanay  v.  Gaudy,  30 
Ch.  D.  57  ;  54  L.  J.t  Ch.  1154  ;  53  L.  T.  30G  ;  33 
W.  R.  803— C.  A.  See  also  Roe  v.  Mutual  Loan 
Fund  Association,  19  Q.  B.  D.  347  ;  56  L.  J., 
Q.  B.  541 ;  35  W.  R.  723—  C.  A. 

lias  matter  in  Issue — Forgery  of  Will— 
Bevoeation  of  Probate.] — In  an  action  in  the 
Probate  Division,  T.  and  G.  propounded  an 
eaiiier,  and  P.  a  later  will.  The  action  was 
compromised,  and  by  consent  verdict  and  judg- 
ment were  taken  for  establishing  the  earlier 
will  Subsequently  P.  discovered  that  the  earlier 
will  was  a  forgery,  and  in  an  action  in  the 
Chancery  Division,  to  which  T.  and  6.  were 
parties,  obtained  a  verdict  of  a  jury  to  that 
effect,  and  judgment  that  the  compromise  should 
be  set  aside.  In  another  action  in  the  Probate 
Division  for  revocation  of  the  probate  of  the 
earner  will :— Held,  that  T.  and  G.  were  estopped 
horn  denying  the  forgery.  Pricstmun  v.  Thomas, 
9  P.  D.  210 ;  53  L.  J.,  P.  109  ;  51  L.  T.  843  ; 
32  W.  B.  842— C.  A. 

Decision  not  necessary.] — A  native  of  Chili 
made  his  will  in  London  and  died.  A  caveat 
having  been  entered  on  behalf  of  his  daughter, 
the  executors  propounded  the  will  in  solemn 
form,  alleging  that  the  testator  was  domiciled  in 
England.  The  daughter  pleaded  that  the  deceased 
wag  at  the  date  of  the  will  and  until  his  death 
domiciled  in  Chili,  and  that  the  will  was  not 
duly  executed  according  to  the  law  of  Chili. 
Upon  this  plea  (inter  alia)  the  executors  took 
issue.  The  judge  of  the  Probate  Court  made  a 
decree  by  which  he  pronounced  for  the  validity 
of  the  will,  found  that  the  deceased  was  at  the 
date  of  the  will  and  at  his  death  a  domiciled 
Englishman,  and  decreed  probate  to  the  execu- 
tors. The  daughter  afterwards  filed  a  bill  against 
the  executors,  alleging  that  the  testator  was  a 
domiciled  Chilian,  that  his  will  being  executed 
in  England  according  to  English  law  was  good 
by  the  law  of  Chili,  but  so  far  only  as  the 
testator  could  by  the  law  of  Chili  dispose  by  will 
of  one-fourth  of  his  personal  estate,  and  that  the 
other  three-fourths  belonged  to  the  daughter. 
The  executors  by  answer  set  up  the  decree  of  the 
hobate  Court  as  a  bar.  An  order  having  been 
Bade  for  inquiry  as  to  the  testator's  domicil, 
in  an  administration  suit  under  circumstances 
(which  it  was  contended)  made  it  equivalent  to 
so  order  in  the  suit  by  the  daughter  against  the 
executors,  the  question  whether  the  order  was 
right  was  litigated  between  the  daughter  and  the 
wsidnary  legatee  : — Held,  that  the  decree  of  the 
Probate  Court  was  not  conclusive  in  rem  as  to  the 
domicil,  because  the  finding  as  to  the  domicil 
**8  not  necessary  to  the  decree : — Held,  also, 


that  for  the  same  reason  the  decree  of  the  Pro- 
bate Court  was  not  conclusive  inter  partes  as  to 
the  domicil,  as  between  the  daughter  and  the 
residuary  legatee,  for  the  executors  could  not, 
by  litigating  in  the  probate  suit  a  question  of 
domicil  which  it  was  not  necessary  to  decide  for 
the  purposes  of  that  suit,  conclude  the  residuary 
legatee  as  to  the  testator's  power  of  disposing  of 
his  property,  and  that  as  the  residuary  legatee 
was  not  bound,  the  daughter  could  not  be  bound, 
since  estoppel  must  be  mutual.  Co?ieJta  v. 
Concha,  11  App.  Cas.  541 ;  56  L.  J.,  Ch.  257  ;  55 
L.  T.  522  ;  35  VV.  R.  477— H.  L.  (E.) 

Action  for  Beatification  of  Agreement  already 
oonstmed  by  Court.]  — C.  built  a  ship  for 
B.,  and  a  considerable  sum  remained  due  to* 
them,  for  which  they  had  a  lien  on  the  ship. 
M.  had  made  advances  to  B.  An  agreement 
was  made  between  the  three  parties  for  sale  of 
the  ship  by  C,  and  for  the  distribution  of  the 
proceeds.  The  agreement  was  very  obscure,  and 
left  it  doubtful  in  what  order  the  claims  of  C. 
and  of  M.  were  to  be  paid.  After  the  sale  M. 
sued  C.  for  an  account  of  the  proceeds,  and 
judgment  was  given  in  the  court  of  the  County 
Palatine  for  carrying  into  execution  the  trusts- 
of  the  agreement,  and  for  the  requisite  account. 
On  taking  the  account  before  the  Registrar,  C. 
claimed  to  be  allowed  his  debt,  but  the  registrar 
held  that  M.  had  priority.  The  proceeds  were 
amply  sufficient  to  pay  M.'s  claim,  but  not  C.'s. 
also.  The  Vice- Chancellor  affirmed  the  view  of 
the  registrar,  and  made  an  order  for  C.  to  pay 
M.'s  claim.  C.  appealed,  but  the  appeal  was 
dismissed,  and  tho  money  was  paid  to  M.  After 
this  C.  brought  an  action  to  rectify  the  agree- 
ment by  making  it  provide  that  C.'s  claim 
should  have  priority  over  that  of  M.  M.  pleaded 
that  the  agreement  having  been  executed,  and 
the  money  paid  under  the  order  of  the  Palatine 
Court,  C.  was  not  entitled  to  any  relief  : — Held, 
on  appeal,  that  the  action  must  be  dismissed, 
for  tnat  although  the  question  of  rectification 
not  having  been  before  the  Palatine  Court, 
there  was  no  res  judicata,  C.  could  not  come 
to  have  the  agreement  rectified  after  it  had  been 
worked  out,  and  the  fund  distributed,  under 
the  order  of  the  court  in  the  Palatine  action. 
Caird  v.  Moss,  33  Ch.  D.  22  ;  55  L.  J.,  Ch.  854  ; 
55  L.  T.  453  ;  35  W.  R.  52  ;  5  Asp.  M.  C.  566— 
C.  A. 

Proof  that  Actions  are  the  same— Pleadings.] 

— In  order  to  raise  the  defence  of  res  judicata 
it  is  not  necessary  to  set  forth  in  detail  in  the 
defence  the  pleadings  in  the  other  action  the 
judgment  in  which  is  said  to  operate  as  res 
judicata,  but,  in  order  to  judge  whether  the  same 
questions  were  at  issue  in  the  first  action  as  in 
the  second,  the  court  will  look  at  the  pleadings, 
in  the  first  action,  though  they  were  not  set  forth 
in  the  defence  in  the  second  action.  Homtoun 
v.  Sligo  (Marquis),  29  Ch.  D.  448  ;  52  L.  T.  9fr 
— Pearson,  J. 

Judgment  in  first  Action  when  Obtained.] — 

Whether  a  judgment  obtained  in  one  action 
before  the  trial  of  another  can  operate  by  way 
of  estoppel  as  res  judicata,  unless  the  judgment 
was  obtained  before  the  issue  of  the  writ  in  the 
second  action,  quaere,    lb. 

Judgment  against  Agent  sot  aside — Action 


727 


ESTOPPEL— By  Record. 


728 


against  Principal.]— The  plaintiff  had  supplied 
goods  on  K.'s  order,  to  a  theatre,  and  had 
obtained  judgment  against  E.  for  the  price. 
Whilst  the  judgment  was  still  standing  the 
plaintiff  commenced  an  action  against  the 
lessee  of  the  theatre  for  the  price  of  the  same 
goods.  The  lessee  objected  that  the  matter  was 
res  judicata.  The  judgment  against  E.  was  set 
aside  before  the  hearing  of  an  appeal  to  the 
Divisional  Court : — Held,  that  as  the  judgment 
had  been  set  aside,  the  action  was  rightly  brought 
against  the  lessee.  Partington  v.  Hawthorne, 
32  J.  P.  807— D. 


2.  Against  what  Parties. 

Privity  between  Incumbent  of  Benefice  and 
Tatron.] — An  incumbent  who  comes  into  a 
benefice  is  a  privy  in  law  to  the  patron  who 
appointed  him,  so  as  to  be  entitled  to  the  benefit, 
and  subject  to  the  burden,  of  the  same  estopped 
as  the  patron.  R.,  the  incumbent  of  a  living, 
sent  in  his  resignation  of  the  benefice  to  the 
bishop,  on  the  understanding  that  the  resigna- 
tion was  not  to  be  formally  accepted,  nor  the 
benefice  declared  vacant,  until  a  date  agreed 
upon  between  himself  and  the  bishop.  Before 
that  date  arrived  R.  withdrew  his  resignation, 
but  the  bishop  refused  to  accept  the  withdrawal, 
and  at  the  time  agreed  upon  declared  the  bene- 
fice vacant,  after  which  the  patrons  appointed 
another  incumbent,  who  was  duly  instituted  and 
inducted  into  the  benefice.  R.  brought  an  action 
against  the  bishop  to  have  his  resignation  de- 
clared null  and  void.  To  this  action  the  patrons 
•of  the  living  were  parties,  and  the  sole  question 
was  whether  the  resignation  was  effectual,  and 
it  was  decided  against  R.  that  the  resignation 
was  effectual  and  complete.  R.  refused  to  give 
up  the  parsonage-house  and  glebe  lands,  and  in 
an  action  brought  against  him  by  the  new  in- 
cumbent, for  an  injunction  to  restrain  him  from 
continuing  in  wrongful  possession  of  the  premises 
and  for  trespass,  R.  set  up,  substantially,  the 
same  defence  as  in  the  former  action,  namely, 
that  his  resignation  was  not  effectual :— Held, 
that,  as  the  question  of  the  effectuality  of  the 
resignation  was  raised  and  disposed  of  in  the 
former  action  to  which  the  patrons  were  parties, J 
and  as  R.  would  have  been  estopped  from  raising  ' 
that  question  again  in  any  proceedings  between 
himself  and  the  patrons,  he  was  also  estopped ! 
from  raising  the  same  question  as  a  defence ' 
against  the  incumbent,  who,  as  being  a  privy  in 
law  to  the  patrons,  was  entitled  to  take  advantage  . 
of  the  same  estoppel.  Mag  rath  v.  Frichel,  57  ' 
L.  T.  850— D.  ! 

Partners — Judgment  against  One  —  Action' 
against  other  Partners  barred.]— An  unsatisfied 
judgment  against  one  joint  contractor  on  a  bill 
of  exchange,  given  by  him  alone  for  the  joint 
debt,  is  a  bar  to  an  action  against  the  other  joint 
contractor  on  the  original  contract.  The  plain- 
tiffs sold  goods  to  a  partnership  consisting  of  the 
defendant  and  W.  After  the  sale  the  partnership 
was  dissolved.  The  plaintiffs,  who  were  not 
aware  of  the  dissolution,  drew  bills  for  the  price 
of  the  goods,  which  were  accepted  by  W.  in  the 
partnership  name.  The  plaintiffs  sued  W.  in  the 
partnership  name  on  the  bills,  and  recovered 
judgment,  which  was  not  satisfied.  The  plain- 
tiffs afterwards  sued  the  defendant  for  the  price 


of  the  goods :— Held,  that  the  case  was  within 
the  principle  of  Kendall  v.  Hamilton  (4  App. 
Cas.  504),  and  the  judgment  against  W.  on  the 
bills  was  an  answer  to  the  action.  Drake  v. 
Mitchell  (3  East,  251), distinguished.  Cambefort 
v.  Chapman,  19  Q.  B.  D.  229  ;  56  L.  J.,  Q.  B. 
639 ;  57  L.  T.  625 ;  35  W.  R.  838  ;  51  J.  P.  45.1 
— D. 


Proof  against    Estate   of  One— Action 


against  other  Partner.] — Although  by  the  law 
as  settled  by  King  v.  Hoare  (13  Mee.  k  W.  494) 
and  affirmed  by  Kendall  v.  Harrison  (4  App. 
Cas.  504),  a  judgment  obtained  against  one  or 
more  of  the  members  of  a  firm  or  co-contractors 
precludes  recourse  to  any  other  person  not  joined 
in  the  action,  an  exception  to  that  rule  has  been 
long  established  in  courts  of  equity — namely, 
that  a  surviving  partner,  or  the  estate  of  a 
deceased  partner,  is  still  liable  to  creditors  of 
the  partnership.  Hodgson,  In  re,  Beckett  v. 
Ramsdale,  31  Ch.  D.  177  ;  55  L.  J.,  Ch.  241 ;  34 
L.  T.  222  ;  34  W.  R.  127— C.  A. 

Executors  of  Executrix  de  son  tort.]— J.  bang 
indebted  to  the  plaintiff  in  the  sum  of  360^  died 
on  November  2,  1882,  intestate.  His  widow,  A, 
without  obtaining  letters  of  administration  inter- 
meddled with  his  assets,  and  the  plaintiff  having 
sued  her  as  executrix  of  her  husband  for  the  sum 
of  360J.,  she  consented  to  judgment,  and  the 
plaintiff  thereupon  signed  judgment  against  her 
as  executrix  for  his  debt  and  costs.  After  her 
death  he  brought  an  action  against  her  executors 
to  recover  372Z.  5*.,  suggesting  a  devastavit  by 
A.  of  her  husband's  assets : — Held,  that  the 
judgment  against  A.  was  conclusive  as  against 
her  to  show  that  she  then  had  assets  of  J.  to 
satisfy  the  amount  of  the  debt,  viz.  372J.  5*,  and 
that  to  the  extent  of  the  difference  between  that 
amount  and  the  sum  of  154/.,  found  by  the  jorj 
to  be  remaining  at  her  death,  a  devastavit  mast 
be  presumed  to  have  been  committed  by  her,  for 
which  her  assets  in  the  hands  of  the  defendants 
were  liable.  Ennis  v.  llocltford,  14  L.  R.,  lr. 
285— Q.  B.  D. 

3.  In  what  Gases. 

Distinct  Causes  of  Action — Same  wrongful 
Act.] — Damage  to  goods,  and  injury  to  the 
person,  although  they  have  been  occasioned  by 
one  and  the  same  wrongful  act,  are  infringe- 
ments of  different  rights,  and  give  rise  to  dis- 
tinct causes  of  action  ;  and  therefore  the  recovery 
in  an  action  for  compensation  for  the  damage  to 
the  goods  is  no  bar  to  an  action  subsequently 
commenced  for  the  injury  to  the  person.  The 
plaintiff  brought  an  action  in  a  county  court 
for  damage  to  his  cab  occasioned  by  the  negli- 
gence of  the  defendant's  servant,  and,  having 
recovered  the  amount  claimed,  afterwards 
brought  an  action  in  the  High  Court  of  Justice 
against  the  defendant,  claiming  damages  for 
personal  injury  sustained  by  the  plaintiff  through 
the  same  negligence  : — Held,  by  Brett,  M.B.. 
and  Bowen,  L.J.  (Lord  Coleridge,  CJ.,  dis- 
senting), that  the  action  in  the  High  Court  wa< 
maintainable,  and  was  not  barred  by  the  previons 
proceedings  in  the  county  court  Bmn*den  t. 
mmphrey,  14  Q.  B.  D.  141  ;  53  L.  J.,  Q.  B.  476 ; 
51  L.  T.  529  ;  32  W .  R.  944  ;  49  J.  P.  4— C.  A. 

A  ship,  A.,  and  her  cargo,  belonged  to  the  same 
owners,  and  the  plaintiffs  advanced  1000/.  as  » 


729 


ESTOPPEL— By  Record. 


780 


loan  to  such  owners,  and  received  as  security,  in 
conformity  with  the  agreement  made  between 
them  and  the  borrowers,  the  bill  of  lading,  on 
which  the  master  indorsed  a  receipt  for  1000/.  as 
advanced  freight,  and  also  a  policy  of  insurance 
on  advanced  freight.  Ship  A.  was  lost  through  a 
collision  with  the  defendant's  vessel,  whose  negli- 
gence was  admitted.  It  was  proved  that  the 
iifference  between  the  value  of  the  cargo  at  the 
port  of  destination  and  at  the  port  of  loading 
wonld  have  considerably  exceeded  1,000/.  In  an 
action  by  the  holders  of  a  bill  of  lading  for 
LOOM,  against  the  defendant's  ship  :  —  Held, 
that  the  plaintiffs  were  entitled  to  recover  the 
<nm,  and  that  the  fact  that  a  sum  in  respect  of 
disbaraeaients  for  ship  A.  on  her  voyage,  and 
wages  paid  in  advance  had  been  awarded  to  the 
owners  of  the  A.  by  the  registrar  and  mer- 
chants was  no  bar  to  the  plaintiffs  right  to  ' 
recwTcr  in  this  action.  The  Thyatira.  8  P.  D. ! 
155 ;  52  L.  J.f  P.  85  ;  49  L.  T.  406  ;  32  \V.  R. 
276;  5  Asp.  M.  C.  147— Hannen,  P. 

Separate  Aetions  for  Injuries  to  part  of  same 
ftwtjgnment  of  Goods.]— In  September,  1883, 
the  plain  tiffs  (a  firm  of  millers)  delivered  to  the 
defendant  railway  company  a  quantity  of  flour  . 
to  be  carried  on  the  railway,  nine  sacks  beiug 
consigned  to  D.,  and  the  remainder  being  con- 
3gned  to  the  plaintiffs  themselves.    Some  of  the  « 
door,  comprising  one  of  the  sacks  received  by 
the  plaintiffs  and   the  greater  portion  of  that 
deu'rered  to  D.,  was  damaged  in  the  carriage. : 
D.  used  ap  two  and  a  half  sacks  of  the  injured  | 
flour,  and  then  he  returned  five  sacks  to  the  ! 
plaintiffs  and  claimed  damages  for  the  two  and  : 
a  half  sacks  which  he  had  used.    The  plaintiffs 
notified  to  the  defendants  the  damage  sustained, 
ud  proceeded  to  recover  damages  for  the  injury 
to  six  sacks  of  the  flour,  but  did  not  claim  in 
iwpect  of  the  two  and  a  half  sacks  used  up  by 
D*  and  they  obtained  decree  against  the  defen- 
dants on  the  31st  October,  1883.    D.,  on  the  17th 
December.  1883,  issued  a  civil  bill  against  the 
plaintiffs  for  the  damage  to  the  two  and  a  half 
tacks,  and  obtained  a  decree  against  them  on  the  ' 
17th  April,  1884,  which  was  affirmed  on  appeal,  I 
and  the  amount  was  paid  by  the  plaintiffs  to  D. 
The  defendant  railway  company  were  served  by 
the  present  plaintiffs  with  notice  of  D.'s  civil 
hill  and  the  appeal  from  the  decree,  and  invited 
to  attend  on  the  hearing.    The  plaintiffs  after- 
wards sued  the  defendant  railway  company  by 
civil  bill  to  recover  the  amount  which  they  had 
been  obliged  to  pay  to  D.  for  damages  and  costs 
"Oder  the  decree  of   19th  April,  1884 :— Held, 
that  the  injury  to  the  two  and  a  half  sacks  being 
an  integral  part  of  the  cause  of  action  arising 
fan  the  defendant's  negligence  in  the  carriage 
<rf  floor  and  for  which  the  plaintiffs  sued  in  the 
fat  process,  the  second  action  was  not  main- 
tainable.   Russell  v.  Waterford  and  Limerick 
totfwiy,  16  L.  R.,  Ir.  314— Ex.  D. 

Zoraer  Cause  between  same  Parties.] — To 
*  petition  by  a  wife  against  her  husband  for 
restitution  of  conjugal  rights,  the  respondent, 
hy  Ins  answer  and  cross-petition  for  a  divorce, 
pleaded  cruelty  on  the  part  of  the  petitioner. 
— Beply,  that  previously  to  the  filing  of  the 
ptsent  petition  the  now  petitioner  filed  a  peti- 
tion for  a  divorce  on  the  ground  of  cruelty,  and 
the  now  respondent  filed  his  answer  preferring 
dirges  of  cruelty  against  the  petitioner  ex- 


tending over  the  same  period  mentioned  in  his 
present  answer,  and  prayed  for  a  divorce  ;  that 
the  charge  of  cruelty  in  his  former  answer  was- 
the  same  as  the  charge  alleged  in  the  present 
answer  and  ]>etition  ;  that  the  former  case  was 
set  down  to  be  heard  before  the  judge  and  a 
jury,  and  the  issues  were,  first,  whether  the  re- 
spondent was  guilty  of  cruelty  ;  secondly,  whether 
the  petitioner  was  guilty  of  cruelty  ;  that  the 
said  issues  were  tried,  and  the  respondent  gave 
in  evidence  the  several  allegations  of  cruelty  set 
forth  in  the  present  answer  and  cross-petition  ; 
and  that  thereupon  the  claim  of  the  now  respon- 
dent to  a  divorce  a  mensa  et  thoro  was  refused  ; 
and  further,  that  after  the  evidence  was  so  given r 
the  judge  asked  the  respondent's  counsel  whether 
they  required  to  have  any  question  left  to  the 
jury  on  the  second  issue,  and  the  counsel  replied 
that  they  did  not.  and  abandoned  the  claim  on 
the  former  cross-petition,  and  the  jury  were 
thereupon  discharged  from  finding  on  the  second 
issue ;  and  that  the  respondent  was  estopped 
and  concluded  by  the  proceedings  had  in  the 
former  suit,  and  by  the  said  issue,  and  by  acts 
and  admissions  of  his  counsel  at  the  trial  : — 
Held,  on  demurrer,  that  the  reply  was  bad,  the 
facts  stated  by  it  not  amounting  to  an  estoppel 
on  the  respondent.  (Jarnegic  v.  Carnegie ,  17 
L.  R.,  Ir.  430— Mat.    Affirmed  in  C.  A. 

Dismissal  for  want  of  Prosecution — Consent 
Order.] — An  order  by  consent,  in  the  absence 
of  an  agreement  to  compromise  the  cause  of 
action,  to  dismiss  an  action  for  want  of  prosecu- 
tion, is  no  bar  to  the  institution  of  a  fresh  action. 
In  this  respect  the  practice  of  the  old  court 
of  Chancery  remains  unchanged.  Magnus  v. 
National  Bank  of  Scotland,  57  L.  J.,  Ch.  902  ; 
58  L.  T.  617  ;  36  W.  R.  602— Kay,  J. 

The  plaintiffs  in  an  action,  wherein  the  same 
parties  were  respectively  plaintiffs  and  defen- 
dants, and  the  same  relief  was  sought  as  in  the 
present  action,  had  paid  the  defendants'  costs 
and  consented  to  an  order,  made  on  summons 
taken  out  by  the  defendants,  dismissing  the 
action  for  want  of  prosecution.  The  plaintiffs 
subsequently  brought  the  present  action,  where- 
upon the  defendants  moved  that  the  question  of 
law  might  first  be  tried  whether  the  plaintiffs 
were  not  estopped  from  bringing  the  present 
action  by  reason  of  the  consent  order  made  in 
the  previous  action  : — Held,  that  the  motion 
must  be  dismissed.    lb. 

Prohibition  in  previous  Action.] — The  plain- 
tiff's solicitor,  who  carried  on  business  within 
the  jurisdiction  of  the  Mayor's  Court,  wrote  to 
the  defendant  demanding  payment  of  71.  6s.  6d. 
for  goods  sold  and  delivered.  The  defendant 
wrote  to  the  plaintiff's  solicitor  (which  he  re- 
ceived within  the  jurisdiction)  admitting  that 
he  owed  to  the  plaintiff  5/.  6s.  6d.  The  plaintiff 
brought  an  action  in  the  Mayor's  Court  for 
11.  6s.  6d.,  and  the  defendant  obtained  a  writ  of 
prohibition  staying  proceeding  therein,  as  the 
contract  was  entered  into  and  the  plaintiff  and 
defendant  resided  out  of  the  jurisdiction.  The 
plaintiff  then  commenced  a  second  action  to 
recover  5/.  6*.  6d.  on  an  account  stated,  and  the 
defendant  obtained  a  second  writ  of  prohibition : 
— Held,  that  the  prohibition  in  the  first  action 
was  not  an  estoppel  against  bringing  the  second 
action.  Qrundy  v.  Tomnscnd,  36  W.  R.  531 — 
C.A. 


1 


781 


ESTOPPEL— By  Record. 


782 


Fresh  Aotion  on  Fresh  Evidence.] — The  next 
of  kin  of  a  testator  instituted  a  suit  for  adminis- 
tration with  a  will  annexed,  bearing  date  1868, 
of  which  the  sole  executor  and  universal  legatee 
was  the  testator's  wife,  who  predeceased  him. 
The  opposition  parties  claiming  to  be  'legatees 
set  up  the  contents  of  a  later  will,  alleged  to 
have  been  executed  in  1877  or  1878,  but  which 
•could  not  be  found.  The  Court  of  Appeal, 
reversing  the  judgment  of  the  Probate  Division, 
•decided  that  there  was  not  sufficient  evidence  of 
the  contents  of  the  second  will,  and  their  deci- 
sion was  affirmed  in  the  House  of  Lords.  A 
fresh  suit  for  probate  of  the  second  will  was 
then  commenced  by  the  executor  of  the  testator 
and  residuary  legatee  of  the  will  of  1877-78, 
-who  had  been  the  confidential  solicitor  of  the 
deceased,  and  who  had  acted  as  solicitor  for  the 
legatees  all  through  the  litigation.  The  suit 
was  founded  upon  fresh  evidence  of  the  con- 
tents and  execution  of  the  second  will : — Held, 
that  although  the  plaintiff  had  been  privy  to  the 
prior  action,  an  application  to  stay  the  proceed- 
ings generally  could  not  be  granted,  but  that 
the  proceedings  ought  to  be  stayed  until  the 
costs  of  the  plaintiffs  in  the  prior  action  had 
been  paid.  Peter*  v.  Tilly,  11  P.  D.  145  j  65 
L.  J.,  P.  75  ;  35  W.  R.  183— Butt,  J. 

Where  a  petition  for  the  re-transfer  of  stock 
has  been  heard  on  the  merits,  and  is  dismissed 
•on  the  ground  that  the  petitioner  has  failed  to 
make  out  his  title,  he  cannot  on  the  subsequent 
discovery  of  fresh  evidence  to  support  it,  present 
a  fresh  petition  for  the  same  object  without  the 
leave  of  the  court  previously  obtained.  May, 
In  re,  House,  Ex  parte,  28  Ch.  D.  518  ;  54  L.  J., 
Ch.  338  ;  52  L.  T.  79  ;  33  W.  E.  917— C.  A. 

Second  Action  for  same  Causa — Prayer  for 
"  further  or  other  Belief." J— In  March,  1881,  the 
plaintiff  handed  to  one  Bird,  a  broker,  shares  in 
a  mining  company,  with  a  transfer  signed  (a 
blank  being  left  for  the  name  of  the  transferee), 
for  the  purpose  of  sale.  Bird  died  ;  and  it  was 
then  discovered  that  he  had,  without  the  know- 
ledge or  authority  of  the  plaintiff,  lodged  the 
shares  with  the  defendant's  firm  as  security  for 
an  advance.  Having  received  notice  from  the 
company  that  they  were  about  to  register  the 
shares  in  the  name  of  the  defendant,  the  plain- 
tiff commenced  an  action  in  the  Chancery  Divi- 
sion of  the  High  Court  to  restrain  the  defen- 
dant's firm  and  the  company  from  parting  with 
the  shares,  or  registering  the  defendant  as  trans- 
feree— concluding  with  the  usual  prayer  for 
'*  such  further  or  other  relief  as  the  nature  of  the 
case  might  require."  On  the  23rd  of  February, 
1882,  the  defendants  in  that  action  consented  to 
an  order  for  the  delivery  up  of  the  shares  to  the 
plaintiff  forthwith.  The  order  directed  that, 
•'  upon  delivery  of  the  deed  or  form  of  transfer, 
and  the  securities  representing  the  same,  and 
upon  payment  of  costs  to  the  plaintiff  and  the 
mining  company,  all  proceedings  in  the  said 
Chancery  action  should  be  stayed."  The  shares 
were  not  delivered  up  to  the  plaintiff  until  the 
28th  of  April,  1882,  when  they  were  sold  at  a 
considerable  loss.  In  an  action  against  the  de- 
fendant in  the  Queen's  Bench  Division  to  recover 
damages  for  this  detention,  the  jury  found  that 
the  plaintiff  did  not  authorize  Bird  to  pledge  the 
shares  for  his  own  debt,  or  lend  them  to  him 
for  that  purpose : — Held,  that  the  plaintiff  was 
estopped  by  the  consent  order  made  in  the  Chan- 


cery action  on  the  23rd  of  February,  1882,  from 
recovering  in  this  action  damages  for  such  de- 
tention, and  that  the  defendant  was  not  respon- 
sible for  the  detention  of  the  shares  by  the 
mining  company  after  the  order  had  been  made 
in  the  suit  in  the  Chancery  Division.  Serrao  t. 
Xoel,  15  Q.  B.  D.  549— C.  A. 

Same  Facts— Two  Offences."!— On  5th  March 
B.  was  charged  under  1  &  2  Will.  4,  c.  32,  s.  30, 
with  trespass  in  pursuit  of  game,  but  acquitted 
for  want  of  corroboration  of  a  witness.  On  14th 
May,  B.  was  charged  under  s.  23  with  unlawfully 
using  a  dog  for  taking  game,  he  having  no 
licence.    The  facts  were  precisely  the  same,  but 

i  on  the  second  occasion  the  witness  was  corro- 
borated and  the  justices  were  satisfied,  but  B. 

I  was  discharged  on  the  ground  of  res  judicata  :— 
Held,  that  the  justices  were  wrong,  and  that 
there  was  no  res  judicata  as  the  offences  were 
not  inconsistent.  Bollard  v.  Spring.  51  J.  P. 
501— D. 


Application   technically   Different]  — 


I  Where  a  divisional  court  has  decided  against  an 

applicant  on  one  application,  a  divisional  court 

consisting  of  other  judges  will  not  overrule  or 

!  review  that  decision  on  a  second  application  by 

,  him,  which  though  technically  different  from 

j  the  first,  raises  the  identical  point  again.    Jfcy. 

v.  Eardley,  49  J.  P.  651— D. 


Same  Charge.]— L.  was   charged  with 


night-poaching  under  9  Geo.  4,  c.  69,  and,  in 

>  course  of  cross-examination  of  prosecutor's  wit- 

|  nesses,  the  justices    considered   he    had   been 

illegally  arrested,  and  discharged  him.     L.  was 

i  again  summoned  for  the  same  offence,  on  the 

same  facts,  when  the  justices  held  that  they  had 

no  jurisdiction,  as  the  former  discharge  was  res 

judicata : — Held,  that  the  justices  were  right. 

Beg.  v.  Bracltenridge,  48  J.  P.  223— D. 

Counterclaim  in  County  Court — Aotion  in  Higfc 

|  Court.] — Where  in  an  action  in  a  county  court  a 

,  defendant  has  relied  upon  a  cause  of  action  bj 

,  way  of  counterclaim,  upon  which  he  has  ob- 

|  tained  a  verdict  for  an  amount   beyond  the 

jurisdiction  of  the  county  court,  and  judgment 

has  been  entered  for  the  defendant,  but  no  relief 

has  been  given  in  respect  of  the  balance  in 

excess  of  the  plaintiffs  claim,  the  defendant  is 

not  estopped  from  afterwards  bringing  an  action 

in  the  High  Court  upon  the  same  cause  of  action. 

Webster  v.  Armstrong,  54  L.  J.,  Q.  B.  236 ;  1  C. 

k  E.  471— Mathew,  J. 

The  defendant  in  the  High  Court  is  estopped 
by  the  verdict  and  judgment  of  the  county 
court  from  denying  the  cause  of  action  of  the 
plaintiff  in  the  High  Court,  and  the  only 
question  to  be  decided  in  the  High  Court  is  the 
amount  of  damages.  lb.  See  47  k  48  Vict.  c.  61. 
s.  18. 

It    BY    DEED. 

Inconsistent  with  Dooument.] — No  estoppel 
can  be  raised  on  a  document  inconsistent  with 
the  document  itself.  Colonial  Bank  v.  Hep- 
worth,  36  Ch.  D.  36 ;  66  L.  J.,  Ch.  1089 ;  57 
L.  T.  148  ;  36  W.  R.  259— Chitty,  J. 

Forgery— One  Joint  Holder  estopped— Sight 
of  other  to  Sue.]— One  of  two  executors,  at 


788 


ESTOPPEL— By  Deed. 


784 


Tiriou  periods,  some  of  which  were  more  than 
4ix  yean  before  the  commencement  of  the  action, 
forged  his  co-executor's  signature  to  transfers  of 
stock,  which  were  duly  registered.    He  applied 
the  proceeds  of  the  transfers  to  his  own  pur- 
poses, bat  continued  to  pay  the  amounts  of  the 
dividends  to  the  persons  entitled.    The  other 
executor,  on  discovery  of  the  fraud,  informed 
the  railway  company  that  the  transfers  were  in- 
valid, and  demanded  that  the  stock  should  be 
registered  in  the  names  of  herself  and  another 
who  had  been  appointed  trustees  of  the  will. 
The  railway  company  declined  to  accede  to  this 
request,  and  the  present  action  was  brought  that 
the  company  might  be  ordered  to  register  the 
plaintiffs  as  owners  of  the  stock  : — Held,  that 
though  the  fraudulent  executor  was  estopped  by 
his  own  action  from  denying  the  validity  of  the 
transfers,  such  estoppel  did  not  affect  his  inno- 
cent co-executor  ;  and  that  the  innocent  executor 
had  in  equity  a  sufficient  interest  in  the  stock  to  \ 
enable  her  to  sue  her  fraudulent  co-executor  and  ' 
the  railway  company.  Barton  v.  North  Sta  fiord- 
tort  Railway,  38  Ch.  D.  458 ;  67  L.  J.,  Cli.  800  ; 
WLT.549;  36  W.  R.  754—  Kay,  J. 

TaUdity  of  Issue  of  Debentures— Bight  of 
Holders.  ]— The  secretary  of  a  company,  by 
direction  of  the  directors,  caused  debentures  pay- 
able to  bearer  to  be  prepared,  sealed  and  stamped. 
They  were  then  placed  in  a  box  that  was  kept 
at  the  company's  London  office,  which  was  also 
the  office  of  T.,  one  of  the  directors.  Some  of 
the  debentures  were  delivered  to  an  agent,  N., 
with  instructions  to  issue  them  to  the  public. 
After  the  commencement  of  the  winding-up  of 
the  company,  N.,  who  had  been  unable  to  issue 
the  debentures,  returned  them  to  T.,  who,  pre- 
viously to  the  commencement  of  the  winding-up, 
had  made  large  advances  to  the  company.  T.  | 
gave  some  of  the  debentures  to  R.  and  Co.,  his 
creditors  (in  satisfaction  of  their  claims),  and 
they  took  them,  supposing  that  they  had  been 
regularly  issued  to  T.:— Held,  that  the  holders  of 
valid  debentures  were  not  estopped  from  dis- ; 
pitting  the  validity  of  those  held  by  R.  and  Co. : 
Mowatt  v.  Cattle  Steel  and  Iron  Works  Com- 
jMBy,  34  Ch.  D.  58  ;  65  L.  T.  645— C.  A.  | 

Htsmteo  disputing  Validity  of  Patent.]— H.,  j 
in  1873,  took  out  a  patent  for  improvements  in  i 
bobbin-net  and  twist-lace  machines ;  in  his 
specification  he  claimed,  not  only  the  whole 
combination,  but  also  three  subordinate  combi- 
nations. In  1877  H.  became  bankrupt,  and  his 
trustee  assigned  the  patent  to  C.  In  1880  H. 
took  out  another  patent  for  improvements  in 
bobbin  netting  and  twist  lace,  and  shortly  after- 
wards entered  into  partnership  with  S.  C. 
bought  an  action  against  H.  &  8.  for  infringing 
}at  patent  H.  &  8.,  delivered  a  defence  contain- 
ing a  denial  of  the  infringement,  and  of  the 
nlidity  of  C.'s  patent.  C,  by  his  reply,  stated 
that  H.  fc  8.  were  estopped  from  denying  the 
ifchVlity  of  his  patent.  H.  &  8.  obtained  leave 
to  sever  in  their  defence  and  to  deliver  particu- 
)*n  of  objections,  without  prejudice  to  any 
Ration  at  the  trial  as  to  their  being  estopped 
from  objecting  to  the  validity  of  C.'s  patent. 
The  court  having  decided  that  C.'s  patent  was 
oid,  on  the  ground  that  the  original  patentee 
had  claimed,  not  only  for  the  whole  combination, 
tat  also  for  three  subordinate  combinations,  one 
of  which  was  not  novel,  allowed  the  appeal  of 


8.,  who  had  taken  that  objection  to  the  patent : 
— Held,  as  to  H.,  that  he  was  not  estopped  from 
disputing  the  validity  of  the  patent  granted  to 
himself  and  assigned  by  his  trustee  in  bank- 
ruptcy. Smith  v.  Cropper,  13  App.  Cas.  249 ; 
55  L.  JM  Ch.  12 ;  63  L.  T.  330 ;  33  W.  R.  753— 
H.  L.  (B.). 

Deposit  Note  of  Society  given  by  Directors.  ] — 
The  directors  of  an  unincorporated  building 
society  which  had  no  borrowing  powers  bor- 
rowed money  for  the  benefit  of  the  society  and 
gave  to  the  lender  as  security  the  promissory 
notes  of  the  directors.  The  society  was  after- 
wards incorporated  under  the  Building  Societies 
Act,  1874  (37  &  38  Vict.  c.  42),  and  acquired 
borrowing  powers.  The  appellant,  who  was  the 
representative  of  the  lender,  applied  to  the 
society  for  repayment  of  the  loan,  but  ultimately 
agreed  to  refrain  from  legal  proceedings  against 
the  society  on  the  directors  giving  him  a  deposit 
note  for  the  amount  due.  The  directors  accord- 
ingly gave  him  a  deposit  note  under  the  seal  of 
the  society,  stating  that  the  money  was  lent  by 
the  appellant  on  the  date  of  the  deposit  note, 
and  he  thereupon  gave  up  to  them  the  promis- 
sory notes  above  mentioned  : — Held,  that  the 
deposit  note  was  not  binding  on  the  society. 
Sheffield  Building  Society,  In  re,  Watson, 
Ex  parte,  21  Q.  B.  D.  301  ;  57  L.  J.,  Q.  B.  609  ; 
69  L.  T.  401 ;  36  W.  R.  829  ;  52  J.  P.  742— D. 

Release  of  Legacies— Other  Property  falling 
in.] — A  testatrix  by  her  will  bequeathed  4,000/. 
upon  trust  for  investment  for  her  niece  for  life, 
and  in  case  the  niece  should  die  without  issue, 
the  testatrix  directed  that  the  sum  should  fall 
into  her  residuary  estate.  She  also  bequeathed 
several  other  pecuniary  legacies,  and  the  will 
contained  also  a  residuary  bequest.  The  estate 
proved  insufficient  to  pay  the  pecuniary  legacies 
in  full,  and  the  pecuniary  legatees  (including 
the  niece)  executed  a  deed  of  release  to  which 
the  residuary  legatees  were  not  parties,  by  which 
they  acknowledged  the  receipt  of  dividends  upon 
the  legacies  in  discharge  of  the  amounts  of  the 
several  legacies,  and  released  the  executors  and 
also  the  estate  of  the  testatrix  from  all  further 
claims  and  demands.  The  niece  afterwards  died 
without  issue,  and  the  sum  which  thus  fell  into 
the  estate  was  sufficient  to  pay  the  balances  on 
the  pecuniary  legacies  in  full.  The  legacy  of 
4.000/.  was  fully  recited  in  the  deed  of  release  : — 
Held,  that  as  the  release  could  not  have  been  in- 
tended to  enure  for  the  benefit  of  the  residuary 
legatees,  the  pecuniary  legatees  were  not  estopped 
by  the  release  from  claiming  to  have  the  balances 
of  their  legacies  made  up  out  of  the  fund  that 
had  thus  fallen  in.  Ghost's  Trusts,  In  re,  49 
L.  T.  588— Kay,  J. 

Lease  —  Rent — Mutuality.  1  —  The  estoppel 
which  enables  a  landlord  wno  is  mortgagor 
without  the  legal  estate  to  sue  for  rent,  is 
mutual,  and  renders  him  liable  on  the  covenants 
in  the  lease.  HaHcup  v.  Bell,  1  C.  &  E.  19 — 
Manisty,  J. 

Recitals  in  Settlement.]— A  marriage  settle- 
ment contained  a  recital  that  B.  was  "  seised  of 
or  otherwise  well  entitled  to  "  certain  messuages, 
the  whole  deed  showing  the  meaning  to  be  that 
B.  was  entitled  in  one  shape  or  other  to  the  fee 
simple  of  all  the  property  therein  conveyed  : — 


785 


ESTOPPEL— By  Matter  in  Pais. 


786 


Held,  a  sufficient  estoppel  as  to  the  part  of  the 
property  in  which  at  the  date  of  the  settlement 
B.  had  no  interest  whatever,  but  as  to  which  her 
interest  accrued  subsequently.  Horton,  In  re, 
Horton  v.  Perks,  51  L.  T.  420— Kay,  J. 


III.   BY  MATTER  IN  PAIS. 

Action  against  Owner  by  Estoppel  and  Beal 
Owner.] — Goods  had  been  supplied  to  the  M. 
Mansions  upon  the  order  of  the  housekeeper. 
The  vendor  sued  the  owner  and  the  secretary  for 
payment.  The  secretary  had  previously  paid 
for  goods  supplied  by  the  plaintiffs  by  cheques, 
signed  "  M.  Mansions  account :" — Held,  that  the 
doctrine  of  Scarf  v.  Jardine  (7  App.  Cas.  345) 
applied,  and  that  the  plaintiff  could  not  sue  the 
secretary,  whose  liability  depended  only  on  es- 
toppel, at  the  same  time  as  the  real  owner.  Jones 
v.  Ashwin,  1  C.  &  E.  159 — Cave,  J. 

Sale  by  Apparent  Owner— Attempt  to  oust 
Purchaser.] — If  a  person,  being  sole  next  of  kin, 
is  in  possession  of  a  chattel  term  without  letters 
of  administration  having  been  obtained,  and 
there  are  no  debts  due  by  the  deceased,  or  any- 
thing to  prevent  such  next  of  kin  from  using  the 
term  as  his  own,  then  he,  the  beneficial  owner, ' 
can  sell  the  term  ;  and  if  the  purchaser  goes  into  ; 
possession  under  the  contract  of  sale,  the  vendor  i 
cannot  afterwards,  either  by  obtaining  a  grant ' 
of  administration,  or  in  any  other  way,  disaffirm  ! 
his  own  act,  and  annul  the  contract.    Ham  ill  v. 
Murphy,  12  L.  R.,  Ir.  400— Ex.  D. 

Jus  tertii— Execution  Debtor— Claimant  in 
Interpleader.] — A  mere  estoppel,  which  pre- 
cludes the  execution  debtor  from  denying  the 
title  of  the  claimant  in  an  interpleader  proceed- 
ing, confers  no  title  upon  the  claimant  as  against 
the  execution  creditor.  Richards  v.  Johnson 
(28  L.  J.,  Ex.  322),  followed.  Richards  v. 
Jenkins,  18  Q.  B.  D.  451  ;  56  L.  J.,  Q.  B.  293  ; 
56  L.  T.  591  ;  35  W.  R.  355— C.  A. 

Principal  and  Agent— Set  off.]— Whether  the 
doctrine  that  on  a  contract  with  an  agent  for  an 
undisclosed  principal,  the  buyer  can  set  off 
against  the  principal  a  debt  due  from  the  agent, 
is  founded  on  estoppel,  Quaere.  Cooke  v.  Eshelby, 
12  App.  Cas.  271 ;  56  L.  J.,  Q.  B.  505  ;  56  L.  T. 
673  ;  35  W.  R.  629— H.  L.  (E.) 

Agreement  by  Manager  of  Company.] — C.  pro- 
posed to  H.,  the  general  manager  of  the  M.  &  0. 
Bank,  that  the  bank  should  advance  him  8,3002., 
to  enable  him  to  conclude  a  contract  for  the 
purchase  of  an  unpaid  vendor's  interest  in  a 
colliery.  H.  had  authority  to  make  the  ad- 
vance. An  agreement  between  C.  and  the  bank, 
providing  for  the  loan  of  the  money  by  the  bank, 
and  the  mortgage  of  the  interest  in  the  colliery 
to  be  purchased  to  the  bank  to  secure  repayment 
of  the  loan  and  charges,  was  prepared  by  a  soli- 
citor on  H.'s  instructions  and  signed  by  C.  H. 
then  declined  to  make  the  agreement  without 
consulting  the  directors,  and  obtained  C.'s  sig- 
nature to  a  document  to  the  effect  that  the 
agreement  was  subject  to  the  approval  of  the 
directors.  On  the  same  day,  after  a  meeting 
of  the  directors,  H.  told  C.  that  the  directors 
approved,  and  that  the  bank  would  advance  the 
money.    The  agreement  was  never  signed  by 


anybody  on  the  part  of  the  bank.  Subsequently 
H.  told  C.  he  ought  to  be  more  firmly  bound  to 
take  the  money  from  the  bank,  and  induced  him 
to  sign  a  document  to  the  effect  that,  in  con- 
sideration of  the  bank's  agreeing  to  carry  out 
the  arrangements  mentioned  in  the  agreement 
he  agreed  to  pay  the  bank  charges  named 
therein,  whether  the  bank  carried  through  the 
transaction  or  not.  In  fact,  the  directors  did 
not  approve  of  the  agreement,  and  H.  acted 
under  an  erroneous  impression  that  they  did. 
The  bank  refused  to  find  the  money,  and  C.  was 
in  consequence  unable  to  complete  his  contract : 
Held,  that  the  bank  was  estopped  from  denying 
such  an  agreement.  Manchester  and  OUkam 
Bank  v.  Cook,  49  L.  T,  674— Per  A.  L.  Smith,  J. 

Postmaster-General — Authority  of  Clerk  — 
Telegrams.] — Where  a  certain  sum  is  charged 
for  a  telegram  and  the  sender  is  afterwards 
called  upon  to  pay  an  increased  sum:— Held, 
that  he  is  bound  to  pay  the  amount  so  claimed, 
as  the  Postmaster-General  is  in  no  way  estopped 
from  suing,  and  is  not  bound  by  inaccurate  re- 
presentations made  by  a  clerk  in  his  employ. 
Postmaster- General  v.  Green,  51  J.  P.  582—  D. 

Bill  of  Sale  treated  as  Valid— Declared  to 
be  Invalid.] — Where  the  grantor  of  a  bill  of  sale 
which  is  afterwards  found  to  be  invalid  has  derived 
advantage  from  treating  it  as  valid,  he  cannot 
set  up  its  invalidity  for  the  purpose  of  obtaining 
a  further  advantage.  Roe  v.  Mutual  Loan  F**d 
Association,  19  Q.  B.  D.  347  ;  56  L.  J.,  Q.  B.  541 ; 
35  W.  R.  723— C.  A.  See  also  Gandyv.  Gandj. 
30  Ch.  D.  57  ;  54  L.  J.  Ch.  1154  ;  53  L.  T.  306; 
33  W.  R.  803— C.  A. 

Receipt  of  Honey  under  Deed  bars  Repudia- 
tion of  Execution.  ] — Where  a  deed  of  assignment 
by  debtors  to  a  trustee  for  the  benefit  of  all 
creditors  who  should  execute  the  deed  was  exe- 
cuted by  the  plaintiffs,  who  appended  a  note 
that  they  executed  only  in  respect  of  certain 
claims  scheduled  to  the  deed  and  amounting  to 
$73,531,  and  it  appeared  that  subsequently 
thereto  they  received  a  sum  of  money  from  the 
trustee  by  virtue  of  their  execution,  of  the  deed : 
— Held,  that  the  plaintiffs  were  bound,  and  that, 
as  they  had  received  payment  under  the  deed, 
they  could  not  be  heard  to  repudiate  it,  and  deny 
their  execution.  Yarmouth  Exchange  Bank  t. 
Blethen,  10  App.  Cas.  293  ;  54  L.  J.,  P.  G.  27; 
53  L.  T.  537 ;  33  W.  R.  801— P.  C. 

Receipt  of  Dividend  on  Composition— Aetiftt- 
for  Balance.] — The  plaintiffs,  who  were  creditors 
of  the  defendant,  a  trader  in  insolvent  circum- 
stances,  took  an  active  part  in  procuring  the 
acceptance  of  a  scheme  of  composition  of  the 
defendant's  affairs,  and  obtained  proxies  from 
the  debtor's  other  creditors.  At  a  meeting  of 
the  creditors  the  plaintiffs  withdrew  the  proof  of 
their  debt  against  the  estate  of  the  defendant  on 
the  ground  that,  owing  to  a  fraudulent  statement 
on  his  part  on  an  earlier  occasion,  they  had  been 
induced  to  forbear  to  press  their  claim  against 
him.  They,  however,  proposed  a  resolution  that 
a  composition  of  11*.  3d.  in  the  pound  should  be 
accepted  in  satisfaction  of  the  debts  due  from 
the  debtor,  and  by  using  the  proxies  held  by  them 
they  carried  the  resolution.  A  dividend  of  1 1*.  34- 
in  the  pound  was  received  by  the  plaintiffs  on 
their  proof.      They  subsequently  brought  their 


T37 


ESTOPPEL— By  Matter  in  Pait. 


788 


iction  in  the  county  court  for  the  unpaid  balance 
of  their  debt,  and  the  county  court  judge  gave  a 
verdict  and  judgment  for  the  amount  claimed. 
The  defendant  obtained  a  rule  nisi  to  set  aside 
the  rerdict  and  judgment  and  for  a  new  trial : — 
Held,  on  the  argument  of  the  rule,  that  the 
plaintiffs,  having  acted  as  they  had  done,  had 
inented  to  the  composition  otherwise  than  by 
poring  their  debt  and  accepting  a  dividend 
on  it,  and  that  they  could  not  maintain  an  action 
for  the  unpaid  balance  of  their  debt,  and  that 
judgment  should  be  entered  for  the  defendant. 
Thorp  v.  Dakin,  52  L.  T.  856— D. 

Payment  of  Sent— Jus  tertii.]— Where  a 
person  claiming  to  be  assignee  of  the  reversion 
receives  rent  from  the  tenant  by  fraud  or  mis- 
representation, such  payment  is  no  evidence  of 
title ;  but  where  there  is  no  fraud  or  misrepre- 
sentation, such  payment  is  prima  facie  evidence 
of  title,  and  the  tenant  can  only  defeat  that  title 
bj  showing  that  he  paid  the  rent  in  ignorance  of 
the  true  state  of  the  title,  and  that  some  third 
person  is  the  real  assignee  of  the  reversion,  and 
entitled  to  maintain  ejectment.  Carlton  v. 
Boweoel,  51  L.  T.  659— Cave,  J. 


of   Shares — Mandamus  to  compel 
Isgistratum.] — A  prerogative  writ  of  mandamus 
will  not  lie  to  compel  a  company  to  register  as  a 
bolder  of  shares  therein,  a  person  to  whom  they 
have  issued  certificates  in  respect  of  such  shares 
where  the  company  have  issued  prior  certificates 
in  respect  of  such  shares  to  some  one  else,  with- 
out clear  proof  that  the  person  to  whom  the  last 
certificates  were  issued  has  a  better  title  than  the 
person  to  whom  the  earlier  ones  were  issued, 
even  though  the  person  holding  the  earlier  certi- 
ficates has  not  been  entered  in  the  company's 
register  as  the  holder  of  such  shares.      when 
neb  a  writ  is  asked  for  the  company  are  not 
estopped  from  relying  on  the  actual  facts  of  the 
esse.    Reg.  v.  Charnwood  Forest  Railway,  1  C. 
*  E.  419 — Denman,  J.      Affirmed  in  C.  A.      See 
«**>  Company,  VI.,  9. 

fans  Anting  as  Member  of  Company.] — 
Where  a  member  of  a  mutual  insurance  company, 
afterwards  converted  into  a  limited  company, 
ha§  vessels  on  its  books  as  insured,  and  pays  calls 
and  otherwise  acts  as  if  he  were  a  member  of 
the  company,  he  is,  in  any  action  brought 
against  him  by  the  limited  company  for  calls  on 
estopped  from  denying  his  liability,  and 


tram  setting  up  either  any  irregularity  in  the 
transfer  from  the  one  company  to  the  other,  or 
that  the  losses  were  paid  without  any  stamped 
policies  being  entered  into  in  contravention  of 
30  Vict  c.  23,  s.  7.  Barrow  Mutual  Ship  In- 
*rnee  Company  v.  Ashburner,  54  L.  J.,  Q.  B. 
377;  64  L.  lC  68  ;  6  Asp.  M.  0.  627— C.  A. 

Inralidly  made— Liability  of  Director.] 

—The  articles  of  association  of  a  company  pro- 
tided  that  the  board  of  directors  should  consist 
of  not  less  than  three  directors,  bnt  when  a  call 
was  made  there  were  only  two  directors  remaining, 
ese  of  whom  was  the  defendant,  who  assisted  in 
leasing  the  resolutions  for  the  call.  In  an  action 
against  the  defendant  for  calls : — Held,  that  he 
*?  Ms  conduct  was  estopped  from  disputing  the 
validity  of  such  resolutions,  and  was  liable  to  pay 
the  amount  of  the  call.    Faure  Electric  Accumu- 


lator Company  v.  Phillipart,  58  L.  T.  526— 
Hawkins,  J. 

Issue  of    folly-paid  Shares.] — When  a 

company  issues  shares  to  directors  as  fully  paid- 
up  snares,  and  afterwards  endeavours  to  recover 
a  call  on  such  shares  : — Held,  that  the  company 
was  prevented  by  estoppel  from  recovering  the 
amount  of  such  calls.  Christchurch  Qa*  Co.  v. 
Kelly,  51  J.  P.  374— Mathew.  J. 

Misrepresentation  that  Change  of  Company 
only  Change  of  Name.]— T.,  P.,  and  D.,  three 
directors  of  a  company,  gave  a  joint  guarantee 
to  bankers  to  secure  the  balance  which  might  be 
due  at  the  closing  of  their  account  to  the  extent 
of  2,0002.  In  September,  1880,  the  company 
went  into  voluntary  liquidation,  and  immediately 
re-commenced  business  under  the  same  directors, 
but  as  a  new  company  with  the  addition  of  the 
word  "  manufacturing n  to  their  former  title. 
The  termination  of  the  old  company  was  not 
disclosed  to  the  bankers,  who  continued  their 
business  with  the  company  without  intermission, 
merely  putting  the  addition  to  the  name  on  the 
cheques  and  in  their  books.  P.  died  in  Decem- 
ber, 1 880.  In  November,  1 88 1 ,  the  new  company 
was  wound  up,  when  it  was  indebted  to  the 
bankers,  who  commenced  an  action  upon  the 
guarantee  for  the  amount  due  to  them  : — Held, 
that  T.  and  D.  by  not  having  given  notice  to  the 
plaintiffs  upon  the  death  of  P.,  that  they  declined 
to  be  answerable  for  any  other  amount  than 
that  which  was  due  at  P.'s  death,  and  by  their 
concealment  of  the  fact  that  a  new  company 
had  been  formed)  and  by  the  tenor  of  their  con- 
duct in  carrying  on  the  business  as  before, 
were  estopped  from  denying  their  liability  upon 
the  guarantee,  and  were  liable  to  the  full 
amount  thereby  secured.  Anhby  v.  Day,  54  L. 
T.  408  ;  34  W.  R.  312— C.  A.  Affirming  54  L.  J., 
Ch.  935— V.-C.  B. 

Bill  of  Lading.] — A  company  owned  a  line  of 
steamers  called  "The  Monarch  Line,"  running 
between  New  York  and  London.  A.  was  in  the 
habit  of  shipping  goods  on  steamers  running  on 
this  line.  A.  shipped  goods  in  a  steamer  at  New 
York,  and  received  a  bill  of  lading  made  out  in 
the  ordinary  form  given  by  the  company  for 
goods  shipped  on  their  steamers,  save  that  it  had 
the  words  "extra  steamer"  added  after  the 
words  "Monarch  Line  of  Steamships."  At 
London  an  overside  release  for  the  goods  was 
signed  and  given  by  the  company's  agents  to  A., 
and  the  freight  received  by  them  from  A. : — Held, 
in  an  action  by  A.  against  the  company  for  non- 
delivery of  the  goods,  that  the  company  were 
estopped  from  saying  that  the  contract  of  ship- 
ment was  not  made  with  them.  Herman  v. 
Royal  Exchange  Shipping  Company,  1  C.  &  B. 
413— Huddleston,  B.  Affirmed  in  C.  A.  See 
also  cases  sub  tit.  Shipping  (Bill  or  Lading). 

Conduct  of  Patentee — Infringement.] — In  an 
action  by  P.,  a  patentee  for  infringement  against 
persons  who  had  bought  machines  from  B.,  it 
was  proved  that  P.  had  asked  the  purchasers  to 
try  his  machine,  saying  that  it  was  a  better 
machine  than  B.'s,  but  gave  no  intimation  that 
he  considered  B.'s  machine  an  infringement  of 
his  patent,  though  he  admitted  that  at  the  time 
he  did  consider  it  to  be  so :— Held,  that  as  the 

B  B 


789 


ESTOPPEL— By  Matter  in  Pais. 


740 


purchasers  did  not  depose  that  when  they  bought 
B.'b  machines  they  were  ignorant  of  P.'s  patent, 
nor  was  there  anj  reason  to  believe  that  they 
were  ignorant  of  it,  or  that  P.  supposed  them  to 
be  so ;  P.  had  not  on  the  ground  of  estoppel,  lost 
his  right  to  sue  them  for  an  infringement  in 
using  B.'s  machines,  it  not  being  the  duty  of  a 

Satentee  to  warn  persons  that  what  they  are 
oing  is  an  infringement,  and  P.'s  conduct  not 
amounting  to  a  representation  that  it  was  not  an 
infringement.  Proctor  v.  Bennis,  36  Ch.  D.  740 ; 
57  L.  J.,  Ch.  11  ;  57  L.  T.  662 ;  36  W.  R.  456— 
O.A. 

Adviee  Votiee— Hog ligenoe   in  inning   two 

Votes.] — The  defendants,  having  received  a  con- 
signment of  wheat,  sent  to  the  consignees  an 
advice  note,  which  described  the  consignment  as 
"  sacks  wheat,  four  trucks,"  and  did  not  contain 
any  details  as  to  weight,  rates  or  charges,  but 
across  the  printed  form  was  written,  "  account 
to  follow.'1  The  consignees  gave  B.  a  delivery 
order  in  respect  of  this  wheat,  and  he  obtained 
an  advance  from  the  plaintiff  upon  it;  the 
plaintiffs  sent  this  delivery  order  to  the  defen- 
dants, and  they  accepted  it.  On  the  following 
day  the  defendants  sent  to  B.  another  advice 
note  on  a  printed  form  similar  to  the  one  already 
sent,  but  across  the  upper  part  was  written  the 
words,  "charges  only ;  the  invoice  number  was 
different ;  the  consignment  was  described  as  151 
sacks  of  wheat ;  the  weight,  the  rate,  and  the 
amount  of  charges  were  filled  in.  B.  filled  up 
the  delivery  order  at  the  bottom  in  favour  of  the 
plaintiffs,  produced  it  to  them,  and  obtained  a 
second  advance  from  them,  as  they  believed  it  to 
relate  to  a  second  parcel  of  wheat  The  plain- 
tiffs delivered  this  order  to  the  defendants,  who 
accepted  it,  and  who  allowed  the  plaintiffs  on 
both  occasions  to  take  samples  of  the  wheat. 
There  was,  in  fact,  only  one  parcel  of  wheat,  and 
the  two  advice  notes  related  to  the  same  parcel. 
B.  went  into  liquidation,  and  the  plaintiffs, 
having  lost  the  amount  of  one  of  the  advances 
so  made  by  them,  sued  the  defendants  for  the 
amount : — Held,  that  the  plaintiffs  were  entitled 
to  recover  the  amount  claimed,  for  that  the 
defendants  had  so  dealt  with  the  wheat  and 
advice  notes  as  to  lead  the  plaintiffs  to  believe 
that  there  were  in  fact  two  consignments  of 
wheat,  and  that  they  were  in  consequence 
estopped  from  afterwards  alleging  that  there 
was  in  fact  but  one  consignment  of  wheat. 
Coventry  v.  Great  Eastern  Bail  way,  11  Q.  B.  D. 
776  ;  52  L.  J.,  Q.  B.  694  ;  49  L.  T.  641— C.  A. 

negligent  Beprosentation  of  Wharfinger.] — 
Goods  were  in  1875  stored  by  brokers  with 
wharfingers,  who  issued  a  warrant  for  the 
same.  In  1885  the  servants  of  the  defen- 
dant, who  had  taken  over  the  wharf  and 
business,  delivered  the  goods  by  mistake  to 
certain  persons  instead  of  goods  to  which  they 
were  entitled,  and  the  defendant  was  not  made 
aware  of  the  mistake.  The  warrant  had  been 
negotiated,  and  was  in  January,  1886,  in  the 
possession  of  B.  and  E.  In  that  month,  no  rent 
having  been  paid  for  the  goods  since  1880,  the 
defendant  wrote  two  letters  to  the  plaintiff,  who 
had  previously  taken  over  the  business  of  the 
brokers  and  carried  it  on  under  their  name, 
informing  him,  as  the  supposed  holder  of  the 
warrant,  and  as  the  person  presumedly  interested 


in  the  goods,  that  the  goods  were  in  hand,  that 
rent  was  due,  and  that,  unless  it  was  paid,  the 
goods  would  be  sold  to  cover  the  amount  doe. 
The  plaintiff  made  no  reply,  but  afterwards,  and 
in  consequence  of  receiving   these  letten,  be 
bought  the  warrant  from  B.  and  £.  and  applied 
to  the  defendant  for  the  goods,  when  the  defen- 
dant first  discovered  that  they  were  no  longer  in 
his  possession.    In  an  action  to  recover  damages 
for  a  wrongful  conversion  of  the  goods :— Held, 
that  the  defendant  was  liable,  being  estopped 
from  denying  that  he  had  the  goods  specified  in 
the  warrant,  because  he  had  by  his  negligent 
misrepresentation  led  the  plaintiff  to  believe  that 
the  goods  were  in  his  possession,  and  such  mis- 
representation was  the  cause  of  the  plaintiff's 
loss,  the  plaintiff  having  purchased  the  warrant 
in  consequence  of  the  same.    Seton  v.  La/one, 
19  Q.  B.  D.  68 ;  56  L.  J.,  Q.  B.  415  ;  67LT. 
547  ;  35  W.  R.  749— C.  A. 

Hegligenee   of    Mortgagee.]— The  plaintiff, 
mortgagee  of  a  policy  of  life  insurance,  handed 
it  to  the  mortgagor  for  a  particular  purpose.  On 
the  plaintiff  demanding  it  back  from  time  to 
time,  the  mortgagor  made  excuses  for  not  doing 
so ;  and  the  plaintiff  then  forgot  that  it  had  not 
been  returned.    Afterwards  the  mortgagor  de- 
posited the  policy  with  the  defendants  to  secure 
an  advance.    The  plaintiff  gave  notice  of  his 
interest  to  the  insurance  company  before  the 
defendants : — Held,  that  the  plaintiff  was  en- 
titled to  the  policy  as  against  the  defendants, 
and  that  the  conduct  of  the  plaintiff  had  not 
been  such  as  to  estop  him  from  asserting  his 
claim  against  the  defendants.  Hall  v.  Weft  EU 
Advance  Company,  1  C.  &  B.  161 — Williams,  J. 

Proximato  Cause  of  Loss.] — A  company  in- 
corporated under  a  charter  granted  by  Charles  II. 
were  possessed  of  a  common  seal,  and  also  of  a 
certain  amount  of  stock  which  stood  in  their 
names  in  the  books  of  the  defendants.    The 
seal  was  entrusted  to  the  custody  of  their  clerk, 
in  whom  implicit  confidence  was  placed,  and 
who  managed  the  affairs  of  the  company  without 
being  subject  to  any  control   or    supervision. 
The  clerk  affixed  the  seal  of  the  company  in  the 
presence  of  two  witnesses,  who  were  not  cor* 
poratorB,  to  two   powers  of  attorney  for  the 
transfer  of  the  stock  belonging  to  the  company. 
These  transfers  were  lodged  with  the  defendants, 
who  in  due  course  paid  over  to  the  clerk  the 
proceeds  of  the  sale  of  the  stock.    The  clerk  was 
subsequently  tried  and  convicted  of  fraud  in 
affixing  the  seal  to  the  transfers  without  the 
authority  of  the  company,  and  of  appropriating 
the  proceeds  of  the  sale  of  the  stock  to  his  own 
use.    In  an  action  for  a  declaration  that  the 
company  were  entitled  to  have  the  stock  stand 
in  their  names  in  the  defendants*  books,  and 
that  they  might  be  ordered  to  replace  the  stock 
in  the  plaintiffs'  names  : — Held,  upon  the  autho- 
rity of  Bank  of  Ireland  y.  Trustees  of  Beans' 
Charities  (5  H.  L.  Cas.  389),  that  even  assuming 
the  company  were  negligent  in  entrusting  the 
seal  to  the  custody  of  their  clerk,  the  negligence 
necessary  to  entitle  the  defendants  to   insist 
that  the  transfers  were  invalid  must  be  negli- 
gence in  or  immediately  connected  with  the 
transfers  themselves,  and  that,  inasmuch  as  the 
forgery  committed  by  the  clerk,  and  not  the 
negligence  of  the  company  in  entrusting  him 
with  the  seal,  was  the  proximate  cause  of  the 


741 


EVIDENCE — Judicial  Notice — Presumptions. 


742 


Ion,  the  defendants  were  liable  to  replace  the 
stock.  Merchants  of  the  Staple  v.  Bank  of 
Enshnd.  21  Q.  B.  D.  160  ;  57  L.  J.,  Q.  B.  418  ; 
36  W.  R.  880 ;  52  J.  P.  580— C.  A. 

lotto  to  Treat— Validity.]— The    Commis- 
fl'ooen  of  Sewers,  acting  under  the  powers  of  57 
Geo.  3,  c.  29,  gave  the  plaintiff  notice  to  treat 
for  the  purchase  of  his  property  for  the  purpose 
of  widening  a  street.    The  whole  of  the  property 
wm  not  required  for  that  purpose,  and  it  ap- 
peared that  the  improvement  contemplated  was 
ntber  lowering  the  level  of,  than  widening  the 
street.   The  plaintiff  negotiated  with  the  com- 
missioners during  eight  months  on  the  basis  of 
the  notice,  and  endeavoured  to  obtain  from  them 
is  large  a  price  as  he  could  for  the  property. 
On  his  failing  to  obtain  so  large  a  price  as  he 
desired  he  brought  an  action  for  an  injunction 
to  restrain  the  commissioners  from  proceeding 
cm  the  notice  to  treat.    On  motion  for  an  in- 
jiortion  .—Held,  the  plaintiff  during  the  nego- 
tiations bad  not  such  knowledge  that  the  com- 
nriaioners  did  not  bona  fide  want  his  houses 
for  purposes  within   their  compulsory  powers 
•s  to  preclude    him   now   from  objecting  to 
their  taking  the  houses.     Lynch  v.    Commis- 
amrtsf  Sewers,  32  Ch.  D.  72 ;  55  L.  J.,  Ch. 
tt»;  MLT.  699;  50  J.  P.  548— C.  A.     Re- 
eling 34  W.  R.  226— Kay,  J. 


EVIDENCE. 

I.  Judicial  Notice,  742. 
II  Presumptions,  742. 
in.  Admissions,  743. 

IV.  Declarations  and    Family   Tradi- 

tion, 743. 

V.  Entries,  745. 

VI.  Documents. 

1.  Judicial  Proceedings,  746. 

2.  Maps,  747. 

3.  Register*,  747. 

4.  Wills,  748. 

5.  Minute  Boohs,  748. 

6.  Reports— Public  Body,  749. 

7.  Bankers1  Books,  749. 

8.  Letters,  760. 

9.  Proof— Secondary  Evidence,  750. 
10.  Parol  Evidence—  Admissibility,  751. 

m  w 


1.  Competency,  754. 

2.  Wkere  Corroboration  necessary,  764. 

3.  Practice— Privilege,  754. 

VIII.  Examination  of  Witnesses  under 
Commission. 

1.  When  Witness  Abroad,  767. 

2.  When  Witness  within  Jurisdiction, 

758. 


IX.  Evidence  on  Affidavit. 

1.  Practice  generally,  761. 

2.  CrosS'Examination,  763. 

X.  In  Particular  Cases. 

1.  In  Bastardy  Cases— See  BASTARDY. 

2.  On  Winding  up  of  Companies — See 

Company,  XI.,  12. 

3.  In  Criminal  Cases— See  Criminal 

Law. 

4.  On  Appeal— See  Appeal. 

XI.  Costs  of  Evidence— See  Costs. 


I.  JUDICIAL  HOTICE. 

Places  on  Admiralty  Chart.] — A  court  should 
take  judicial  notice  of  the  geographical  positions 
of,  and  general  names  applied  to,  a  district  as 
shown  on  the  Admiralty  chart.  BirreU  v.  Dryer, 
9  App.  Cas.  345  ;  51  L.  T.  130  ;  5  Asp.  M.  C.  267 
— H.  L.  (8c.) 

II.  PREBUMPTI0N8. 

Death— Person  not  heard  of  for  Seven  Tears.] 
— If  a  person  has  not  been  heard  of  for  seven 
yews,  there  is  a  presumption  of  law  that  he  is 
dead  ;  but  there  is  no  presumption  as  to  when, 
during  the  seven  years,  he  died.  The  person 
upon  whom  it  rests  to  prove,  either  that  he  was 
alive  or  dead  at  a  particular  time,  must  do  so  by 
distinct  evidence.  Rhodes,  In  re,  Rhodes  v. 
Rhodes,  36  Ch.  D.  586  ;  56  L.  J.,  Ch.  826 ;  57 
L.  T.  652— North,  J. 

A.  R.  was  last  beard  of  in  1873  ;  but  there  was 
no  evidence  as  to  when  he  died.  He  died  en- 
titled to  a  sum  of  money,  which  had  recently 
been  paid  to  his  administrator : — Held,  that  (in 
the  absence  of  any  evidence  as  to  when  he  died) 
neither  his  next-of-kin  in  1873,  nor  his  next-of- 
kin  in  1880,  were  entitled  to  have  the  money 
paid  to  them,    lb. 

Although  there  is  no  legal  presumption  as  to 
the  actual  time  of  death,  there  is  a  presumption 
at  law,  when  a  party  has  been  absent  and  not 
heard  of  for  seven  years,  that  he  is  dead.  The 
plaintiffs  having  insured  the  life  interest  of  one 
H.  with  the  defendant  insurance  company  for 
the  better  security  of  certain  advances  to  H., 
and  H.  not  having  been  seen  or  heard  of  for  a 
period  of  over  seven  years  : — Held,  that  H.  must 
be  taken  to  be  dead,  and  that  the  plaintiffs  were 
entitled  to  the  amount  of  the  life  policy  and 
bonuses.  WUlyams  v.  Scottish  Widows  Fund, 
52  J.  P.  471— Stephen,  J. 

Legitimacy  of  Children.]— The  presumption 
in  favour  of  the  legitimacy  of  a  child  born  in 
wedlock  is  not  a  presumptio  juris  et  de  jure,  but 
may  be  rebutted  by  evidence,  which  must  be 
clear  and  conclusive  and  not  merely  resting  on 
a  balance  of  probabilities.  BosvUe  v.  Attorney- 
General,  12  P.  D.  177  ;  66  L.  J.,  P.  97  ;  67  L.  T. 
88  ;  36  W.  R.  79— D. 

Legal  Origin  for  existing  state  of  things.] — 
In  the  absence  of  evidence  as  to  the  origin  of 
an  existing  state  of  things,  an  illegal  origin 
is  not  to  be  presumed,  if  it  might  naturally 
have  had  a  legal  origin.  Croft  v.  Rickmans- 
worth  Highway  Board,  67  L.  J.,  Ch.  689 — 
Kekewicb,  J. 

B  B  2 


748 


EVIDENCE— Admissions. 


744 


III.    ADMIBBI0H8. 

By  Counsel— Proof  of  Facts  disponsed  with.] 

— At  the  trial  of  an  action  counsel  made  an 
admission  as  to  the  law  of  Scotland,  but  the 
judge  did  not  consider  himself  bound  by  that 
admission  and  received  evidence  upon  the  point : 
Held,  that  as  the  question  of  Scotch  law  was  one 
of  fact,  proof  of  which  like  proof  of  other  facts 
might  be  dispensed  with  by  the  admission  of 
counsel,  the  judge  was  wrong  in  going  into  the 
matter.  Urquhart  v.  Butterfield,  37  Ch.  D. 
357  ;  57  L.  J.,  Ch.  521  ;  57  L.  T.  780 ;  36  W.  R. 
876— C.  A. 

Between  Co-defendants.  ] — Admissions  between 
co-defendants  under  Ord.  XXXII.  r.  2,  of  the 
Rules  of  the  Supreme  Court,  1883,  to  which  the 
plaintiff  is  not  a  party,  cannot  be  entered  as  evi- 
dence against  the  plaintiff,  and  therefore  cannot 
be  included  in  an  order  for  taxation  and  payment 
of  the  general  costs  of  the  action.  Dodds  v. 
Tuke,  25  Ch.  D.  617  ;  53  L.  J.,  Ch.  598 ;  50  L.  T. 
320  ;  32  W.  R.  424— V.-C.  B. 

Of  Mother  as  to  Legitimacy  of  Child.  ]— When 
the  legitimacy  of  a  child  born  in  wedlock  is  in 
question,  previous  statements  of  the  mother  that 
the  child  is  a  bastard  are  admissible  as  evidence 
of  her  conduct,  though  she  would  not  be  allowed 
to  make  such  statements  in  the  witness-box. 
The  Aylesford  Peerage,  11  App.  Cas.  1— H.  L. 
(E.). 

By  Agent— Letter  from  Captain  to  Owners.  ] 
A  letter  from  the  master  of  a  ship  to  her  owners 
is  admissible  as  evidence  against  them  in  regard 
to  the  facts  therein  stated ;  but  the  opinion  of 
the  master  in  such  a  letter  is  not  evidence.  The 
Solway,  10  P.  D.  137;  54  L.  J.,  P.  83;  53 
L.  T.  680;  34  W.  R.  232  ;  5  Asp.,  M.  C.  482— 
Hannen,  P. 

Engineer's  Log-book.]— The  engineers 

log-book  kept  on  board  a  steamer  is  admissible 
as  evidence  against  the  shipowner.  The  Earl 
of  Dumfries,  10  P.  D.  31 ;  54  L.  J.f  P.  7  ;  51 
L.  T.  906  ;  33  W.  R.  568  ;  6  Asp.,  M.  C.  342— 
Butt,  J. 

Previous  Belief— Parliamentary  Oaths  Acts.] 
— Statements  and  avowals  of  a  defendant  as 
to  his  belief  in  a  Supreme  Being,  and  as  to 
whether  an  oath,  as  an  oath,  has  any  binding 
force  upon  his  conscience,  are  admissible  in  the 
trial  at  bar  of  an  action  for  penalties  under 
the  Parliamentary  Oaths  Act,  1866,  even  though 
such  statements  or  avowals  were  made  before 
he  was  elected  a  member  of  the  parliament  in 
which  he  sat  and  voted.  Attorney- General  v. 
Bradlaugh,  14  Q.  B.  D.  667  ;  54  L.  J.,  Q.  B. 
206 ;  52  L.  T.  689  ;  33  W.  R.  673  ;  49  J.  P.  500 
— C.A. 


IV.    DECLARATIONS    AKD    FAMILY 
TBADITIOH. 

Of  Deceased  Person  —  Legitimacy— Family 
Tradition.]— P.  died  intestate,  and  the  Crown 
claimed  his  property  on  the  ground  that  he  was 
illegitimate.  The  evidence  which  was  relied 
on  to  prove  illegitimacy  was  (1)  declarations 
made  and  letters  written  by  P.  whilst  alive 


asserting  his  own  illegitimacy ;  (2)  absence  of 
proof  that  the  man  whom  P.'s  next-oMrin 
asserted  to  be  P.'s  legitimate  father  was  alive  at 
the  date  of  P.'s  conception  ;  (3)  family  tradition 
and  admissions  by  the  next-of-kin  now  claiming 
the  property  .-—Held,  (1)  that  declarations  made 
by  a  deceased  person  before  his  death  as  to  bis 
own  illegitimacy  were,  admissible  in  evidence ; 
(2)  that  it  lay  on  the  claimant  to  prove  that  the 
man  asserted  by  her  to  be  the  father  of  P.  was 
alive  at  the  date  of  P.'s  conception,  before  it  was 
necessary  for  the  Crown  to  prove  non-access  by 
that  man  to  P.'s  mother  at  that  date ;  and  (3) 
that  family  tradition  was  admissible  to  cor- 
roborate P.'s  declaration  as  to  his  own  ille- 
gitimacy. Pert  on,  In  re,  Pearson  v.  Attorney- 
General,  53  L.  T.  707— Chitty,  J. 

Where  the  legitimacy  of  a  child  born  in  wed- 
lock is  in  issue,  previous  statements  by  the 
mother  that  the  child  is  a  bastard  are  admis- 
sible as  evidence  of  her  conduct,  although  she 
could  not  be  allowed  to  make  such  statements 
in  the  witness-box.  The  Aylesford  Peerage,  \\ 
App.  Cas.  1— H.  L.  (E.). 

Declarations  by  a  reputed  father  contained  in 
business  letters  written  by  one  of  his  daughters 
in  his  name  and  under  his  dictation  were  ad- 
mitted as  evidence  after  his  death  of  the  date  of 
their  birth  upon  the  question  of  their  legitimacy. 
Turner,  In  re,  Glenister  v.  Harding,  W  Ch.  D. 
985  ;  53  L.  T.  528— Chitty.  J. 


Only  received  in  Questions  of  Pedigree.] 


— The  defendant  to  an  action  for  goods  sold, 
work  done,  and  money  paid,  set  up  the  defence 
of  infancy.  In  support  of  this  defence  an  affi- 
davit made  by  his  father,  since  deceased,  in  an 
administration  suit,  to  which  the  plaintiff  in 
this  action  was  not  a  party,  containing  a  state- 
ment by  the  father  as  to  the  place  and  date  of 
the  defendant's  birth,  was  tendered  and  received 
in  evidence  : — Held,  that  such  a  declaration  was 
only  receivable  in  questions  of  pedigree,  and 
that  no  such  question  was  raised  in  this  case,  so 
that  the  case  did  not  fall  within  that  exception 
to  the  general  rule  as  to  the  inadmissibility  of 
hearsay  evidence.  Haines  v.  Guthrie,  13  Q.  B.  D. 
818  ;  53  L.  J.,  Q.  B.  521 ;  51  L.  T.  645  ;  33  W.  SL 
99  ;  48  J.  P.  756— C.  A. 

A.  and  B.  were  married  in  1806,  and  C,  their 
daughter,  was  born  in  1811.  A.  and  B.  were 
dead,  and  there  was  evidence  that,  after  the 
birth  of  C,  B.  had  stated  that  she  had  had  a 
son,  who  was  older  than  C,  and  had  died  before 
the  birth  of  the  latter.  The  Christian  name  of 
the  son  could  not  be  ascertained,  and  there  was 
no  other  evidence  of  his  birth  or  death : — Held, 
that  B.'8  statements  were  admissible  as  a  decla- 
ration by  a  deceased  person  on  a  question  of 
pedigree,  that  the  death  of  the  son  of  A.  and  B., 
though  his  Christian  name  was  unknown,  might 
be  presumed  to  have  occurred  between  1806  and 
1811,  and  that  a  grant  of  administration  should 
be  made,  describing  him  by  his  surname  with  his 
Christian  name  in  blank.  Thompson,  In  goods  */, 
12  P.  D.  100  ;  56  L.  J.,  P.  46  ;  57  L.  T.  373;  35 
W.  R.  384— Hannen,  P. 

Family  Beputation  and  Tradition,]— Where  a 
witness  deposed  that  she  had  received  a  letter 
from  her  niece  A.  relating  the  fact  of  the  death 
of  A.'s  father  (which  was  material  to  the  issse 
in  the  case),  and  that  the  family  repute  founded 
on  that  letter  was  that  A/s  father  was  dead :— 


745 


EVIDENCE— Entries. 


746 


Held,  that  as  family  repute  is  only  admissible  in 
question  of  pedigree,  the  evidence  should  have 
been  rejected.  Palmer  v.  Palmer,  18  L.  R.,  Ir. 
192— C.  A. 

Deliberate  statements  made  by  deceased  mem- 
ben  of  a  family,  who,  if  alive,  could  have  been 
competent  witnesses,  are  generally  admissible, 
bat  a  statement  by  one  member  of  a  family  that 
B.,  another  member,  did  a  certain  act,  which 
act,  if  done  at  all,  was  done  before  the  deceased's 
birth,  and  there  being  nothing  to  show  what 
were  his  grounds  of  knowledge,  and  the  fact  not 
otherwise  being  proved,  is  not  evidence  that  the 
particular  act  was  done  by  any  one ;  and  though 
the  statement  cannot  be  altogether  rejected,  yet 
it  can  only  be  received  as  mere  family  tradition. 
Lotat  Peerage,  The,  10  App.  Cas.  763— H.  L. 
(Sc). 

Statements  post  litem  mo  tarn] — When  a  per- 
son leaves  his  native  place  and  goes  to  another 
place  to  pursue  a  claim  to  an  estate  situated 
there,  and  on  his  return  tells  certain  persons 
what  was  said  to  him  by  persons  connected  with 
the  family  while  so  pursuing  his  inquiries ;  these 
statements  are  not  admissible  evidence.    lb. 

Incompleteness  of  Declaration  —  Unsigned 
Documents.] — In  questions  of  pedigree,  the  cir- 
cumstance that  a  document  containing  a  relevant 
declaration  by  a  deceased  declarant  is  not  com- 
plete for  its  primary  purpose,  does  not  affect  the 
admissibility  of  the  declaration.  Thus,  where 
the  question  was  one  as  to  the  marriage  of  A. 
and  B.,  both  deceased,  a  declaration  by  A.  that 
B.  passed  as  his  wife  contained  in  a  draft  will  in 
A.'g  handwriting  was  held  admissible,  although 
roch  draft  will  was  never  executed  by  A.  Lam- 
hert,  In  re.  56  L.  J..  Ch.  122 ;  56  L.  T.  15— 
ChittyfJ. 


V.    EVTBI28. 

By  Deceased  Person — Course  of  Business — 
Zvstago.] — Neither  proof  of  an  entry  made  by  a 
deceased  person  in  the  ordinary  course  of  busi- 
ness in  a  postage-book  of  a  letter  to  be  posted, 
nor  proof  of  possession  by  the  deceased  person 
for  toe  purpose  of  posting,  is  sufficient  evidence 
of  postage.  Rowlands  v.  De  Vecchi,  1  C.  &  E. 
10-Day,  J. 

Against  Interest]  —  In  order  that  an 

admission  made  by  a  dead  man  may  be  admis- 
sible in  evidence  on  the  ground  that  it  was 
against  his  interest,  it  must  have  been  actually 
against  his  interest  at  the  time  when  it  was 
Blade;  it  is  not  sufficient  that  it  might  possibly 
ton  out  afterwards  to  have  been  against  his 
interest.  An  admission  made  by  a  bankrupt  in 
ms  statement  of  affairs  that  a  debt  is  due  from 
him,  is  not  after  his  death  admissible  evidence 
as  against  his  assignee  in  bankruptcy  of  the 
existence  of  the  debt,  merely  because  it  might 
torn  out  that  there  was  a  surplus  after  paying 
the  creditors.  Edward*,  Ex  parte,  Tollemache, 
Aw,14Q.B.  D.  415— C.  A. 

An  admission  of  a  debt,  contained  in  a  bank- 
nipt  s  statement  of  his  affairs  made  after  the 
commencement  of  bankruptcy  proceedings,  is 
not  evidence  as  against  his  creditors  of  the 
existence  of  a  debt,  even  though  the  statement 
verified  by  his  oath  (without  cross-examina- 


tion), and  he  has  since  died.  Revell,  Ex  parte, 
Tollemache,  In  re,  13  Q.  B.  D.  720 ;  64  L.  J., 
Q.  B.  89 ;  51  L.  T.  376  ;  33  W.  R.  288— C.  A. 

Payment    reviving    Statute  -  barred 

Debt.]  —  In  1884  a  foreclosure  action  was 
brought  by  the  representative  of  a  mortgagee 
against  the  assignees  of  the  equity  of  redemp- 
tion of  land  mortgaged  in  1863,  and  the  equity 
of  redemption  in  which  was  assigned  to  the 
defendants  in  July,  1878.  The  only  evidence 
that  interest  had  been  paid  since  1876  was  an 
entry  in  the  diary  of  the  deceased  mortgagee  of 
50/.  paid  by  the  mortgagor  for  principal  and 
interest.  The  date  of  the  entry  was  September, 
1878 :— Held,  by  North,  J.,  that  as  the  entry 
would  prove  the  revival  of  a  debt  then  statute- 
barred,  it  was  an  entry  in  the  interest  of  the 
mortgagee,  and  could  not  be  received  in 
evidence  in  favour  of  his  representatives. 
Held,  on  appeal,  that  whether  the  entry  was 
admissible  or  not,  it  was  not  sufficient  to  take 
the  case  out  of  the  Statute  of  Limitations, 
because  it  was  only  evidence  of  a  payment  made 
by  the  mortgagor  after  he  had  parted  with  his 
equity  of  redemption.  Kewbomd  v.  Smith,  33 
Ch.  D.  127  ;  65  L.  J.,  Ch.  788  ;  55  L.  T.  194  ;  34 
W.  R.  690— C.  A.  Affirmed,  87  L.  T.,  Jour.  255 
— H.  L.  (E.). 

Entries  in  Books— Evidenoe  as  against  Third 
Parties.]— H.,  who  employed  Messrs.  P.  as  his 
solicitors,  was  in  the  habit  of  leaving  moneys 
of  his  in  their  hands  for  investment  for  his  bene- 
fit. In  1878  Messrs.  P.,  who  had  lent  money  of 
their  own  to  V.  &  E.,  an  engineering  firm,  on  a 
mortgage  of  certain  works,  repaid  themselves 
11,000/.,  part  of  the  debt,  out  of  the  moneys  of 
H.  in  their  hands,  and  in  their  books  entered  the 
transaction  as  a  "  loan "  by  H.  to  V.  &  E.  of 
11,000/.  at  5  per  cent.,  the  interest  being  paid  to 
him  during  his  life  by  Messrs.  P.  Messrs  P.  be- 
came bankrupt,  and  a  summons  was  taken  out  by 
H.'s  representative,  that  she  became,  under 
declarations  of  trust  by  Messrs  P.,  sub-mortgagee 
for  11,000/.  and  interest,  of  the  works,  or  part 
owner  to  that  extent,  and  for  other  relief.  As 
evidence  in  support  of  the  summons,  the  claimant 
relied  on  the  above-mentioned  entry  in  Messrs. 
P.'s  books ;  on  entries  in  a  cash  account  furnished 
to  her  by  them  of  half-yearly  payments  of  interest 
on  the  11,000/. ;  on  a  tabular  statement  of  mort- 
gages in  the  residuary  account  of  H.'s  estate, 
prepared  by  them  for  the  purposes  of  legacy 
duty  ;  and  on  a  letter  written  by  Messrs.  P.  to 
her  containing  a  similar  tabulated  statement  of 
mortgages  forming  part  of  H.'s  estate : — Held, 
that  although  the  entries  she  relied  on  were  not 
evidence  as  against  third  parties  such  as  the 
company,  yet  as  against  Messrs.  P.  they  estab- 
lished a  declaration  of  trust  of  a  mortgage  for 
11,000/.  and  interest  extending  to  all  the  works 
of  V.  &  E.  at  the  place  mentioned  at  the  date  of 
the  letter.  Vernon,  Ewen*,  $  Co.,  In  re,  32 
Ch.  D.  165  ;  54  L.  T.  365  ;  34  W.  R.  606— V.-C.  B. 


VI.    DOCUMENTS. 
1.    JUDICIAL  PROCEEDINGS. 

Judgment,  Proof  of] — A  judgment  may  be 
proved  by  the  production  of  a  duly  certified 
copy  of  an  entry  in  the  entry-book  of  judgments 


747 


EVIDENCE— Documents. 


748 


of  the  court  in  which  the  judgment  was  re- 
covered. Anderson,  JEa  parte.  Tollemache,  In  re* 
14  Q.  B.  D.  606  ;  64  L.  J.,  Q.  B.  383 ;  62  L.  T. 
786— C.  A. 

Eeport  of  Judge—  Irish  Action.]— A  report 
made  by  an  Irish  judge  to  a  divisional  court  in 
Ireland  to  be  used  on  an  application  to  set  aside 
a  verdict,  is  evidence  in  an  English  action  be- 
tween the  same  parties  of  what  took  place  at  the 
trial  and  what  the  judge  decided.  Houstoun  v. 
Sligo  (Marquis*),  29  Ch.  D.  448— C.  A. 

Judgment  —  Shorthand  Hote.]— An  affidavit 
verifying  the  shorthand  note  of  the  judgment 
in  the  action  pleaded  as  res  judicata  was  also 
admitted.    lb. 


Shorthand  Writer  Bead.]— It  was  pro- 


posed to  read  a  shorthand  note  of  proceedings 
in  a  prior  probate  suit,  but  the  shorthand  writer 
was  dead.  On  an  affidavit  being  produced  by  a 
person  who  had  acted  as  proctor  in  that  suit 
certifying  to  the  correctness  of  the  note,  the 
court  permitted  it  to  be  read.  Be  Mora  v. 
Concha,  29  Ch.  D.  281— C.  A. 


- —  Keeords  Lost]— The  plaintiffs  in  an 
action  to  establish  commonable  rights  over  a 
piece  of  land  in  a  certain  parish,  founded  their 
claim  upon  an  action  of  novel  disseisin  brought 
in  23  Hen.  3,  the  records  in  which  were  missing. 
It  was  submitted  that  the  proceedings  could  be 
proved  by  (1)  a  note-book  in  the  British  Museum 
containing  a  note  of  the  case,  which  was  sub- 
mitted as  being  a  copy  of  the  record ;  (2)  a 
document  forming  part  of  the  Cottonian  MSB. 
in  the  British  Museum,  purporting  to  be  a  regis- 
ter of  a  priory  interested  in  the  action,  contain- 
ing an  account  of  the  action  ;  and  (3)  a  note  of 
the  action  in  an  entry  in  the  church-book  of  a 
parish,  the  parson  of  which  was  a  defendant  to 
the  action,  made  438  years  after  the  date  of  the 
action  :— Held,  that  (1)  and  (2)  were  not  admis- 
sible, but  that  (8)  was  receivable  in  evidence 
quantum  valeat,  as  an  entry  of  an  historical 
fact  in  which  the  parish  was  interested,  it  being 
probably  taken  from  the  record  which  might 
then  have  been  in  existence.  Bidders,  Bridges  % 
64  L.  T.,  629  ;  84  W.  R.  514-Kay,  J. 


2.     MAPS. 

Ordnance  Maps— Maps  in  British  Museum.]— 
In  an  action  to  establish  commonable  rights  over 
a  piece  of  land  on  behalf  of  all  the  proprietors 
and  occupiers  of  lands  or  tenements  in  a  certain 
parish,  the  question  raised  by  the  evidence  was  : 
whether  the  land  in  question  was  within  the 
parish.  The  ordnance  map,  and  several  other 
maps,  some  of  which  had  been  kept  in  the 
British  Museum,  were  tendered  in  evidence  for 
the  purpose  of  showing  the  position  of  the 
boundaries  of  the  parish  : — Held,  that  the  maps 
were  not  admissible  in  evidence.    lb. 


3.    REGISTERS. 

Memorandum  in  Church  Register.]— A  memo 
random  in  a  register  of  a  church  by  its  deceased 


rector  made  110  years  ago,  though  not  a  con- 
temporaneous entry  made  in  the  regular  come 
of  the  register,  is  admissible  as  evidence,  and 
goes  to  prove  that  the  rector  did  the  things 
stated  in  the  memorandum.  Lauderdale  Peer- 
age, The,  10  App.  Cas.  692— H.  L.  (8c.).  &e 
also  Bidder  v.  Bridges,  supra. 

Baptismal  Register— Entry  of  Dateof  Krth,]- 
Although  an  entry  in  a  baptismal  register  by 
the  officiating  clergyman  of  the  day  when  the 
baptised  child  was  born  furnishes  no  proof  per 
se  that  the  child  was  born  on  the  day  stated,  the 
entry  will  not  be  rejected  altogether  as  an  item 
of  evidence  upon  an  inquiry  as  to  the  legitimacy, 
from  its  birth  before  or  after  the  marriage  of  its 
reputed  parents,  of  the  child  in  question.  Timer, 
In  re,  Olenister  v.  Harding,  29  Ch.  D.  986 ;  53 
L.  T.  528— Chitty,  J. 

Proof  of  Writing— Duty.]  —Entries  in 

registers  of  births,  deaths,  and  marriages  are 
only  admissible  in  evidence  if  it  is  proved  either 
that  they  are  in  the  handwriting  of  a  deceased 
person  whose  duty  it  was  to  make  the  entries,  or 
that  a  public  duty  to  keep  the  registers  was 
imposed  upon  the  person  making  the  entries. 
Lyell  v.  Kennedy,  66  L.  T.  647  ;  35  W.  R.  725- 
C  A. 


4.    WILLS. 

Attesting  Witnesses— Proof  of  Handwriting.] 
— On  proof  satisfactory  to  the  court  of  the 
handwriting  of  the  two  attesting  witnesses  to  a 
will  containing  a  doe  attestation  clause  and 
executed  in  France  by  a  testatrix  domiciled  in 
that  country ;  and  upon  evidence  that  diligent 
search  had  been  made,  but  without  success,  for 
the  two  attesting  witnesses,  it  was  held  that 
sufficient  proof  had  been  given  that  the  requisite 
formalities  attending  the  due  execution  of  the 
will  had  been  complied  with.  Baxendale  v.  De 
Valmer,  57  L.  T.  666— Chitty,  J. 

Hew  Zealand  Probate— English  Probate  ne- 
cessary. ] — A  petitioner  asked  for  payment  ont  of 
court  of  money  to  which  he  was  entitled  under 
an  appointment  by  will :— Held,  that  probate  of 
the  will  in  the  Supreme  Court  of  New  Zealand 
was  not  sufficient  for  this  court  to  act  upon,  but 
the  will  must  be  proved  in  England.  Limekoix 
Board  of  Works,  Ex  parte,  VaUanne,  In  re,U 
Ch.  D.  177  ;  62  L.  J.,  Ch.  791  ;  48  L.  T.  941 ;  32 
W.  R.  387— Pearson,  J. 


5.    MINUTE-BOOKS, 

Unsigned  —  Proper  Custody.  ]  — A  minute,  of 
date  1749,  from  an  original  unsigned  minute- 
book,  produced  from  the  proper  custody  and 
kept  in  accordance  with  a  charter  of  a  societj, 
is  admissible  evidence.  Lauderdale  Peerage,  l%r, 
10  App.  Cas.  692— H.  L.  (Sc). 

Vestry  Minute-Book.]  —  The  brother  of  the 
defendant  entered  into  a  contract  with  a  vestry 
constituted  under  the  Metropolis  Mpi^ng?"?^ 
Act,  1855,  and  in  order  to  enable  him  to  carry  it 
out,  borrowed  money  from  the  defendant,  who 
by  way  of  security  took  an  assignment  of  the 


749 


EVIDENCE— Documents. 


750 


contact  Afterwards  the  defendant  was  elected 
i  member  of  the  vestry.  An  action  for  penalties 
baring  been  brought  against  the  defendant  for 
acting  as  member  of  the  vestry,  an  attendance- 
book  of  the  members  signed  by  the  defendant, 
and  the  minute-book  of  the  vestry  containing  his 
name  as  a  member  in  attendance,  were  put  in  as 
evidence  at  the  trial : — Held,  that  there  was 
evidence  under  s.  60  of  the  above  Act  that  the 
defendant  had  acted  as  member  of  the  vestry. 
Hvnaings  v.  Williamson,  11  Q.  B.  D.  533  ;  52 
L  J.,  Q.  B.  416  ;  46  L.  T.  361  ;  32  W.  R.  267— 
C.  A. 


6.   REPORTS— PUBLIC    BODY. 

taveyor  of  Public  Body.]  — A  public  body, 
acting  under  the  powers  of  the  Lands  Clauses 
Act,  had  entered  into  negotiations  with  the 
plaintiff  for  the  purchase  of  his  land.  They 
passed  a  resolution  directing  their  solicitor  to 
write  a  letter  to  the  plaintiff,  the  resolution 
being  based  upon  the  report  of  their  own  sur- 
veyor. The  plaintiff  wished  to  put  the  report 
in  evidence  to  shew  the  grounds  for  passing  the 
resolution,  and  to  explain  the  latter :— Held, 
that  the  report  was  not  admissible  as  evidence. 
Cooper  v.  Metropolitan  Board  of  Works,  25  Ch. 
D.  472 ;  50  L.  T.  602— C.  A. 


7.    BANKER8'    BOOKS. 

Iispeetien — "When  Ordered.]  — In  an  action 
for  goods  sold  and  delivered,  to  which  payment 
and  a  counterclaim  were  pleaded,  the  plaintiff, 
after  issue  joined,  applied  ex  parte  to  a  judge  at 
chambers,  and  obtained  leave,  under  s.  7  of  the 
Bankers'  Books  Evidence  Act,  1879,  to  inspect 
the  defendant's  banking  account.  The  order 
vis  served  on  the  defendant's  bankers,  and 
they,  on  receipt  of  it,  informed  the  defendant, 
who  thus  heard  of  the  order  which  had  been 
made.  The  defendant  took  out  a  summons  before 
the  same  judge  to  set  aside  the  order,  and 
obtained  a  variation  of  it  by  which  the  in- 
tpeetion  was  limited  to  the  period  within 
which  the  goods  were  alleged  to  have  been 
•old  and  delivered: — Held,  that,  under  the 
circumstances,  the  plaintiff  was  not  entitled 
to  the  order  for  inspection.  Davie*  v.  White, 
ft  L.  J.,  Q.  B.  276  ;  60  L.  T.  327  ;  32  W.  R.  520 
— D. 

The  plaintiff  in  an  administration  action  was 
*  residuary  legatee  of  M.,  a  solicitor,  the  tes- 
tator in  the  action,  and  in  the  course  of  the 
ooatexamination  on  the  accounts,  before  the 
chief  clerk,  of  the  defendant  H.,  who  was  the 
testator's  son-in-law  and  executor,  and  was 
carrying  on  business  as  a  solicitor  under  the 
film  of  M  M.  Jt  H.,"  applied  to  the  court  under 
a,  7  of  the  Bankers'  Books  Evidence  Act,  1879, 
that  she,  or  her  solicitor,  who  had  been  ap- 
pelated receiver  in  the  action,  might  be  at 
liberty  to  inspect  at  the  bankers  of  the  testator 
and  the  defendant  the  books  of  the  bank  for 
far  years  containing  the  entries  of  the  ac- 
counts of  the  testator  and  also  of  M.  &  H.,  and 
to  take  copies  of  such  entries.  The  plaintiff's 
solicitor  deposed  that  the  inspection  was  neces- 
■rj  lor  the  purposes  of  the  action  : — Held,  that 
the  plaintiff  was  entitled  to  the  order  asked  for. 
Marshfield,  i»  re,  Marshfield  v.  Hutching  s,  32 


Ch.  D.  499  ;  55  L.  J.,  Ch.  522 ;  54  L.  T.  564  ;  34 
W.  R.  511— V.-C.  B. 

Application  Ex  parte — Limit  of  Time.] 

— In  civil  proceedings  an  order  for  inspection  of 
the  banking  account  of  a  party  under  section  7 
of  the  Bankers*  Books  Evidence  Act,  1879,  may 
properly  be  made  upon  an  ex  parte  application, 
although  as  a  general  rule  it  would  be  advisable 
to  serve  the  party  before  making  the  order,  and 
the  application  need  not  in  every  case  be  sup- 
ported by  evidence.  The  inspection  granted 
ought,  however,  to  be  limited  to  the  period 
covered  by  the  matters  in  dispute  in  the  pro- 
ceedings. Arnott  v.  Hayes,  36  Ch.  D.  731  ;  56 
L.  J.,  Ch.  844 ;  57  L.  T.  299 ;  36  W.  R,  246— 
C.A. 

In  civil  proceedings  an  application  for  such 
an  order  for  inspection  ought  not  to  be  made  ex 
parte ;  and  semble,  that  the  power  to  grant  the 
order  ex  parte  is  limited  to  criminal  proceed- 
ings.   Davies  v.  White,  supra — Per  Day,  J. 


8.   LETTERS. 

"Without  Prejudice."]— The  effect  of  letters 
and  interviews  "without  prejudice"  discussed. 
Kurtz  v.  Spence,  57  L,  J.,  Ch.  238 ;  58  L.  T. 
438— Kekewich,  J. 

Proof  of  Postage.]  —  See  Rowlands  v.  Do 
Vecchi,  ante,  col.  745. 


9.  PROOF— SECONDARY  EVIDENCE. 

.  Attesting  Witness.]— An  appointment  of  new 
trustees,  not  required  to  be  by  deed  or  to  be 
attested,  was  made  by  deed,  executed  abroad  by 
the  donee  of  the  power,  who  was  resident 
abroad,  and  his  execution  of  it  was  attested  by 
a  witness,  also  resident  abroad.  A  vesting  order 
was  then  applied  for,  one  of  the  old  trustees 
being  of  unsound  mind,  and  was  supported  by 
proof  of  the  handwriting  of  the  signature  of  the 
appointor  to  the  deed  : — Held,  that  the  peti- 
tioners must  prove  the  handwriting  of  the 
attesting  witness,  or,  failing  that,  must  show 
that  they  had  endeavoured  to  find  a  witness  in 
England  who  could  speak  to  his  handwriting, 
and  failed  in  doing  so,  in  which  case  the  order 
might  be  drawn  up  on  proof  of  the  handwriting 
of  the  appointor.  Rice,  In  re,  32  Ch.  D.  35  ; 
65  L.  J.f  Ch.  799  ;  54  L.  T.  689  ;  34  W.  R.  747— 
C.  A.  See  also  Baxendale  v.  De  Yalmer,  ante, 
ooL  748. 

Secondary  Evidence— Notice  to  Produce.]— 

Action  to  restrain  an  alleged  libel,  to  the  effect  that 
the  plaintiff  was  infringing  the  patent  rights  of 
the  defendant,  a  rival  tradesman.  The  defendant, 
in  cross-examination,  stated  that  he  had  been  in 
the  habit  of  consulting  A.,  an  engineer  (one  of 
his  witnesses),  as  to  his  patents,  and  had  received 
from  him  a  written  report.  The  plaintiff  had 
not  required  from  the  defendant  an  affidavit  of 
documents,  and  on  the  twelfth  day  of  the  trial 
notice  by  leave  was  given  to  the  defendant  to 
produce  the  report  next  day.  The  report  not 
being  produced  next  day,  the  plaintiffs  counsel, 
after  the  evidence  for  the  defendant  wae  closed, 
asked  leave  to  recall  the  defendant  or  A.,  to  be 


761 


EVIDENCE— Documents. 


■     752 


examined  as  to  the  contents  of  the  report,  or  that 
A.  might  produce  a  copy  of  it.  The  court  re- 
fused to  allow  parol  evidence  to  be  given  at  that 
stage  of  the  trial,  with  respect  to  a  document  as 
to  which  no  proper  notice  to  produce  had  been 
given.  Sugg  v.  Bray,  54  L.  J.,  Ch.  132  ;  51  L.  T. 
194— North,  J. 

Foundation   Deed   of    Charity.]  —  An 

extract  of  the  foundation  deed  of  a  charity, 
purporting  to  be  signed  by  the  founder,  which 
had  been  hung  up  in  the  board-room  of  the  cha- 
rity for  many  years,  and  on  its  cessation  was 
given  into  the  care  of  one  of  the  governors  and 
secretary  of  the  charity,  was  admitted  as  evidence 
of  its  trusts.  Hospital  for  Incurables,  In  re,  13 
L.R.,  Ir.  361— M.R. 

Unstamped— Admissibility.]— An  unstamped 
document  embodying  an  agreement,  not  fall- 
ing within  the  exceptions  specified  in  the 
Stamp  Act  (33  &  34  Vict.  c.  97),  is  inadmissible 
in  evidence  in  civil  proceedings  for  any  purpose 
whatever.  Interleaf  Publishing  Company  v. 
Phillips,  1C.&B.  315— Williams,  J. 

A  cnarterparty  executed  entirely  abroad,  and 
stamped  within  two  months  after  it  has  been 
received  in  this  country,  can  be  received  in 
evidence,  since  it  falls  within  the  provisions  of 
33  &  34  Vict.  c.  97,s.  15,  and  not  of  ss.  67  and  68 
of  that  act.  The  Belfort,  9  P.  D.  215  ;  53  L.  J., 
P.  88  ;  51  L.  T.  271  ;  33  W.  R.  171 ;  6  Asp.  M.  0. 
291— D. 


10.  PAROL    EVIDENCE  — ADMISSIBILITY. 

Latent  Ambiguity  —  Question  for  Jndge  or 

Jury.] — In  an  action  on  a  policy  of  insurance,  if 
the  evidence  discloses  a  latent  ambiguity  in  the 
policy  requiring  a  resort  to  parol  evidence,  the 
question  at  issue  ceases  to  be  one  of  construction 
for  the  court,  and  becomes  one  of  fact  for  a  jury. 
Hordern  v.  Commercial  Union  Insurance  Co., 
56  L.  J.,  P.  C.  78  ;  56  L.  T.  240— P.  C. 

To   explain  Acts  and   Standing   Orders.]  — 

Evidence  of  the  usages  and  practice  of  the  House 
is  admissible  to  explain  the  meaning  of  the  Par- 
liamentary Oaths  Act,  1866,  and  the  standing 
orders  of  the  House  with  regard  to  making  and 
subscribing  the  oath.  Attorney  -  General  v. 
Bradlaugh,  14  Q.  B.  D.  667  ;  54  L.  J.,  Q.  B.  205 ; 
62  L.  T.  589  ;  33  W.  R.  673 ;  49  J.  P.  500— C.  A. 

To  explain  Document] — By  the  terms  of  a 
written  agreement  J.  agreed  to  lease  to  W.  "  a 
shop  and  premises  which  are  to  be  built  at  a  cost 
not  to  exceed  400/.,  at  the  annual  rental  of  75Z." 
J.  expended  750/.  in  building,  and  refused  to 
grant  W.  a  lease  at  a  rent  of  75/.  In  an  action 
by  W.  against  J.  for  specific  performance,  the 
defendant  set  up  as  a  defence  a  contemporaneous 
parol  proviso  to  the  agreement  to  the  effect  that 
if  the  outlay  exceeded  400/.  the  rent  was  to  be 
raised  in  proportion  : — Held,  that  such  parol  pro- 
viso did  not  contradict,  but  merely  explained, 
the  terms  of  the  written  contract,  and  that  the 
evidence  was  admissible.  WUliams  v.  Jones,  36 
W.  R.  573— Kekewich,  J. 

Parol  evidence  to  explain  the  circumstances 
under  which  a  guarantee  to  a  bank  for  advances 
was  given,  is  admissible  to  aid  the  court  in  con- 


struing the  document.     Grahame  v.  Graham, 
19  L.  R.,  Ir.  249— V.-C. 

For  purpose  of  Rectification.]— Letters  offend 
in  evidence  to  show  that  during  negotiations  for 
a'sale  the  vendor  had  declined  to  enter  into  a 
proposed  covenant  not  to  solicit  the  old  custo- 
mers, were  admissible,  not  to  construe  the  agree- 
ment, but  as  showing  a  collateral  verbal  agree- 
ment which  would  be  a  defence  to  an  action  for 
specific  performance,  the  defendant  also  seeking 
by  counterclaim  rectification  of  the  agreement 
Pearson  v.  Pearson,  27  Ch.  D.  149 ;  54  L.  J.,Ch. 
37— C.  A. 

Application  for  Cancellation.]— Where  it  is 
sought  to  cancel  a  lease,  or  executed  conveyance 
upon  equitable  grounds,  parol  evidence  is  admis- 
sible, even  where  there  has  been  an  antecedent 
agreement  in  writing  for  the  lease  or  convey- 
ance. Gun  v.  McCarthy,  13  L.  R.,  Ir.  304— 
Flanagan,  J. 

To  add  to  Consideration.] — By  an  agreement  in 
writing  G.  agreed  that  Y.  should  receive  all  the 
money  that  was  then  due,and  which  shouldbecome 
due,  to  G.  upon  the  winding-up  of  a  society,  Y. 
paying  to  G.  out  of  such  money  the  sum  of  100J. 
The  consideration  was  stated  to  be.  "In  con- 
sideration of  a  sum  of  money  this  day  paid,"  &c : 
— Held,  that  evidence  was  admissible  to  show 
that,  in  addition  to  the  consideration  expressed, 
there  was  another  consideration,  namely,  that 
Y.  should  vote  for  the  winding-up  of  the  society. 
Barnstaple  Second  Annuitant  Society,  In  rf,  50 
L.  T.  424— D. 

To  shew  Signature  by  Agent  to  be  for  Princi- 
pal himself.] — By  articles  of  agreement  under 
seal  between  J.  A.  k  Go.  and  Y.  &  Co.,  Y.  k  Co. 
agreed  to  do  certain  work  for  which  J.  A.  &  Co. 
were  to  make  certain  payments,  and  the  agree- 
ment contained  this  clause :  "  It  is  further 
understood  between  the  parties  to  this  contract 
that  J.  O.  Schuler  guarantees  payment  to 
Y.  k  Co.  of  all  moneys  due  to  them  under  toe 
contract."  The  attestation  clause  was  "signed 
and  delivered  by  the  said  J.  A.  &  Co.  in  the 
presence  of  C.  T„"  and  Schuler,  acting  under 
a  power  of  attorney,  signed  as  follows  :  u  P.  P. 
A.— J.  A.  &  Co.,  J.  O.  Schuler."  Y.  &  Co.  sued 
Schuler  as  guarantor,  and  evidence  was  given 
at  the  trial  of  statements  by  Schuler  at  the 
time  of  execution  that  he  intended  to  sign  on 
his  own  behalf  as  well  as  on  that  of  A.  &  Co. 
A  verdict  was  found  for  the  plaintiffs.  Schuler 
moved  for  a  new  trial  on  the  ground  that  he  had 
not  signed  the  guarantee  : — Held,  that  evidence 
that  Schuler  intended  to  sign  in  his  own  right  as 
well  as  on  behalf  of  J.  A.  &  Co.  did  not  contra- 
dict the  document,  and  was  admissible,  and  that 
Schuler  must  be  taken  to  have  signed  as  a  con- 
tracting party.  Young  v.  Schuler.  11  Q.  B.  D. 
651  ;  49  L.  T.  546— C.  A. 

Custom  of  Trade — Brokers  personally  liable.] 
— A  written  contract  made  by  brokers  on 
behalf  of  undisclosed  principals  for  the  sale 
of  hides  provided  that  "if  any  difference  or 
dispute  shall  arise  under  this  contract,  it  is 
hereby  mutually  agreed  between  the  sellers 
and  buyers  that  the  same  shall  be  settled  by 
the  selling  brokers,  whose  decision  in  writing 
should  be   final  and  binding  on  both   sellers 


758 


EVIDENCE— Witnesses. 


754 


and  buyers.'  In  an  action  against  the  brokers 
in  respect  of  inferior  hides  delivered  under 
the  contract,  the  buyers  made  a  claim  for  the 
breach  against  the  brokers  as  principals  by 
custom  of  the  trade  : — Held,  that  evidence  of  a 
ciistom  of  the  trade  that  a  broker  who  does  not 
disclose  his  principal  is  personally  responsible 
for  the  performance  of  the  contract  and  liable  for 
the  breach  was  rightly  rejected,  as  such  custom 
was  inconsistent  with  the  arbitration  clause, 
which  would,  if  the  custom  were  incorporated, 
make  the  brokers  judges  in  their  own  cause. 
JSsttwd  v.  Dyster,  13  Q.  B.  D.  636  ;  51  L.  T. 
573 ;  33  W.  R.  199— D. 

The  defendants,  who  were  hop-brokers,  gave 
to  the  plaintiffs  the  following  sold-note  :  "  Sold 
by  Ongley  &  Thornton  (the  defendants)  to 
Messrs.  Pike,  Sons,  &  Co.,  for  and  on  account 
of  owner,  100  bales  .  .  .  hops  .  .  . 
(Kgned)  for  Ongley  k  Thornton,  S.  T."  In  an 
action  for  non-delivery  of  hops  according  to 
sample,  the  plaintiffs  sought  to  make  the  defen- 
dants personally  liable  on  the  above  contract, 
and  tendered  evidence  to  show  that  by  the 
cpstom  of  the  hop  trade,  brokers  who  do  not 
disclose  the  names  of  their  principals  at  the  time 
of  making  the  contract  are  personally  liable 
upon  it  as  principals,  although  they  contracted 
as  brokers  for  a  principal.  No  request  was  made 
by  the  plaintiffs  to  the  defendants  to  name  their 
principal : — Held,  that  the  custom  gave  a  remedy 
against  the  brokers  as  well  as  against  the  princi- 
pals, that  it  was  not  in  contradiction  of  the 
written  contract,  and  that  evidence  of  the 
custom  was  properly  admitted  at  the  trial. 
Bttchinton  v.  Tatham  (8  L.  R.,  C.  P.  482)  con- 
sidered. Pi kr  v.  Ongley,  18  Q.  B.  D.  708  ;  56 
L  J„  Q.  B.  373  ;  35  W.  R.  534— C.  A. 

Hot    inconsistent   with   Document.]  — 

Goods  were  shipped  under  a  bill  of  lading  at 
Calcutta  to  be  delivered  in  like  good  order 
and  condition  from  the  ship's  tackles  at  the 
port  of  London.  On  arrival  in  the  port  of 
London  the  consignees  demanded  overside  de- 
livery into  lighters  immediately  from  the  ship's 
tackles.  The  shipowner  landed  them  on  the 
dock  wharf,  and  was  ready  to  deliver  them 
thence  into  the  consignee's  lighters,  but  the 
consignee  carted  them  away,  thereby  becoming 
liable  to  certain  dock  charges  which  he  paid. 
In  an  action  by  the  consignee  to  recover  the 
amount  so  paid,  the  jury  found  that  there  was  a 
custom  for  steamships  having  a  general  cargo 
(the  defendants*  ship  being  such)  coming  into 
the  port  of  London  and  using  the  docks,  to  dis- 
cbarge the  goods  on  the  quay,  and  thence  into 
tighten : — Held,  that  the  custom  found  was  not 
inconsistent  with  the  terms  of  the  bill  of  lading, 
and  that  the  shipowner  was  entitled  to  discharge 
the  goods  on  to  the  quay,  and  was  not  liable  for 
the  charge  sought  to  be  recovered.  Marzetti  v. 
Smith,  49  L.  T.  580  ;  5  Asp.  M.  C.  166— C.  A. 
Affirming,  1  C.  &  E.  6— Cave,  J. 

A  bill  of  lading  stipulated  (inter  alia)  that 
"the  merchandise  shipped  thereunder  was  to 
he  received  on  the  quay  at  London,  and  delivered 
therefrom  by  the  person  appointed  by  the  steam- 
ship's agents,  Jtc.,  the  merchandise  to  be  received 
*od  delivered  according  to  the  customs  and 
•ages  of  the  respective  ports."  A  custom  was 
proved  with  regard  to  grain  cargoes  coming  to 
London,  that  if  the  merchant  does  not  demand 
delirery  of  the  grain  within  twenty-four  hours 


after  the  ship's  arrival,  the  ship  is  entitled  to 
discharge  the  goods  on  the  quay.  The  merchant 
did  not  demand  delivery  of  the  cargo  within  the 
twenty-four  hours,  and  it  was  landed  on  the 
quay  : — Held,  that  the  custom  was  not  incon- 
sistent with  the  terms  of  the  bill  of  lading,  and 
that  therefore  the  merchant  was  bound  to  pay 
the  expenses  incurred  in  weighing  out  the  cargo 
and  the  quay  rates.  Aste  v.  fitumore,  1  C.  &  B. 
819— C.  A. 


VII.    WmTEBSEB. 
1.    COMPETENCY. 

Evidence  of  Husband — Hon-aecess.] — W.,  by 

will,  bequeathed  1,500/.  to  trustees  in  trusts  for 
C,  the  wife  of  J.  for  life,  and  after  her  death  to 
divide  the  same  equally  among  the  children  of 
the  marriage.  J.  deserted  C,  who  subsequently 
cohabited  with  M.,  and  during  such  cohabitation 
A.  was  born.  On  the  death  of  C,  A.,  an  infant 
by  her  next  friend,  applied  for  maintenance, 
out  of  the  fund,  whereupon  J.  filed  an  affidavit 
denying  the  legitimacy  of  A.  upon  the  ground, 
among  others,  of  non-access  to  his  wife  : — Held, 
that  this  was  not  a  "proceeding  instituted  in 
consequence  of  adultery"  within  the  meaning 
of  s.  S  of  the  Evidence  Further  Amendment 
Act,  1869,  and  therefore,  the  evidence  of  the 
husband  as  to  non-access  was  not  admissible. 
Nottingham  Guardians  v.  Tomkinson  (4  C.  P.  D. 
343)  followed.  Walker,  In  re,  Jackson,  In  re, 
53  L.  T.  660  ;  34  W.  R.  95— Kay,  J.  iSee  al*o 
The  Aylesford  Peerage,  ante,  col.  744. 


2.  WHERE  CORROBORATION  NECESSARY. 

Claim  against  Estate  of  Deceased  Person.] — 

There  is  no  rule  of  law  that  the  uncorroborated 
evidence  of  a  claimant  against  the  estate  of  a 
dead  man  will  be  rejected,  but  it  will  be  regarded 
with  jealous  suspicion.  Garnett,  In  re,  Gandy 
v.  Macaulay,  31  Ch.  D.  1 — C.  A. 

There  is  no  rule  of  law  which  precludes  a 
claimant  from  recovering  against  the  estate  of 
a  deceased  person  on  his  own  testimony  without 
corroboration  ;  although  the  court  will  in  general 
require  such  corroboration.  Hodgson,  In  re, 
Beckett  v.  Ranudale,  31  Ch.  D.  177 ;  55  L.  J.t 
Ch.  241  ;  54  L.  T.  222  ;  34  W.  R.  127— C.  A. 

A  claim  against  the  assets  of  a  deceased  person 
cannot  be  allowed  upon  the  uncorroborated 
evidence  of  the  claimant.  This  rule  is  of 
universal  application,  and  does  not  depend  on 
the  character  or  position  of  the  claimant. 
Harnett,  In  re,  Leahy  v.  (T  Grady,  17  L.  R., 
Ir.  543— V.-C. 


1  3.  PRACTICE— PRIVILEGE. 

Examination  before   Trial  of  Person  not  & 

i  Party  to  the  Action.]— By  Ord.  XXXV  TL  r.  7, 

!  of  the  Rules  of  Court,  1883,  the  court  or  a  judge 

i  may  in  any  cause  or  matter  at  any  stage  of  the 

'  proceedings  order  the  attendance  of  any  person, 

|  for  the  purpose  of  producing  such  writings  or 

other  documents  as  he  could  be  compelled  to 

produce  at  the  hearing  or  trial.     Central  News 

Company  v.  Eastern  News  Telegraph  Company, 

53  L.  J.,  Q.  B.  236  :  50  L.  T.  235  ;  32  W.  R.  493 

-D. 


756 


EVIDENCE—  Witnesses. 


n 


In  an  action  brought  by  the  plaintiffs  against 
the  defendants  for  an  improper  use  and  publica- 
tion of  certain  telegrams  transmitted  by  them  to 
the  plaintiffs,  the  defendants  applied,  under  Ord. 
XXXVII.  r.  7,  for  the  production  of  certain  docu- 
ments belonging  to  and  in  the  possession  of  the 
Electrjc  News  Telegraph  Company,  who  were 
not  parties  to  the  action,  with  a  view  of  showing 
that  the  news  contained  in  the  telegrams  had 
been  communicated  by  the  plaintiffs  to  such 
company,  and  by  them  made  public  prior  to  the 
time  at  which  such  news  was  published  by  the 
defendants.  The  defendants  contended  that  the 
production  of  the  documents  in  question  would 
simplify  the  proceedings  at  the  trial  and  save 
expense : — Held,  that  the  power  conferred  on 
the  court  was  one  which,  if  it  existed,  should  be 
exercised  with  extreme  caution,  and  that  no 
sufficient  ground  had  been  shown  for  the  pro- 
duction of  the  documents  asked  for.    lb. 

Enforcing  Attendance  of  Witness  out  of 
Jurisdiction.]— When  an  action  and  "all 
matters  in  difference  "  between  the  parties  have 
been  referred  by  consent  to  an  arbitrator,  no  writ 
of  subpoena  will  be  granted  under  17  &  18  Vict. 
e.  34,  s.  1,  in  order  to  compel  the  attendance  at 
the  hearing  before  the  arbitrator  of  witnesses 
residing  within  the  United  Kingdom  but.  out  of 
the  jurisdiction  of  the  Queen's  Bench  Division ; 
for  the  hearing  before  the  arbitrator  is  not  a 
"  trial "  within  the  meaning  of  that  enactment. 
Hall  v.  Brand,  12  Q.  B.  D.  39 ;  53  L.  J.,  Q.  B. 
19  ;  49  L.  T.  492  ;  32  W.  R.  133— C.  A. 

Hostile  Witness— Discretion  of  Judge.] — At 

the  trial  of  an  action  the  defendant's  counsel,  in 
order  to  show  that  a  witness  called  by  him  was 
hostile,  and  to  obtain  leave  to  treat  him  as  such 
under  s.  22  of  the  Common  Law  Procedure  Act, 
1854,  asked  the  judge  to  look  at  an  affidavit  made 
by  the  witness  in  a  former  action.  The  judge, 
being  of  opinion  that  there  had  been  nothing  in 
the  witness's  demeanour,  or  in  the  way  he  had 
given  his  evidence,  to  show  that  he  was  hostile, 
refused  to  look  at  the  affidavit : — Held,  on  motion 
for  a  new  trial,  that  the  discretion  given  to  the 
judge  under  s.  22  of  the  Common  Law  Procedure 
Act,  1854,  was  absolute,  and  the  court  had  no 
jurisdiction  to  review  his  decision.  Rice  v. 
Howard,  16  Q.  B.  D.  681  ;  55  L.  J.,  Q.  B.  311  ; 
34  W.  R.  532— D. 

Refusal  to  Answer— Tendency  to  Criminate.] — 

Where  a  question  is  in  form  an  innocent  one,  it 
is  not  a  sufficient  ground  of  refusal  for  a  witness 
to  say  that  he  believes  his  answer  to  such  a 
question  will  or  may  criminate  him  ;  but  he 
mast  satisfy  the  court  that  there  is  a  reasonable 
probability  that  it  would  or  might  do  so. 
Gilbert,  Ex  parte,  Qenete,  In  re,  3  M.  B.  R.  223 
— C.A. 

Hot  allowed— Statement  of  Claim  admitted.] 

— The  statement  of  claim  in  salvage  actions 
should  contain  such  facts  as,  if  admitted,  will 
constitute  the  whole  of  the  plaintiff's  case,  as  the 
court  will  decline  to  admit  evidence  at  the  hear- 
ing, except  on  special  grounds,  where  the  facts 
alleged  in  the  statement  of  claim  are  admitted. 
The  Hardwick,  9  P.  D.  32 ;  53  L.  J.,  P.  23  ;  50 
L.  T.  128  ;  32  W.  R.  598  ;  6  Asp.  M.  C.  199— 
Hannen,  P. 


Privilege— Solicitor  and  Client]— All  com- 
munications between  a  solicitor  and  his  client 
are  not  privileged  from  disclosure,  but  only 
those  passing  between  them  in  professioml 
confidence  and  in  the  legitimate  coarse  of  pro- 
fessional employment  of  the  solicitor.  Com- 
munications made  to  a  solicitor  by  his  client 
before  the  commission  of  a  crime  for  the  purpose 
of  being  guided  or  helped  in  the  commission  of 
it,  are  not  privileged  from  disclosure,  ify.  t. 
Cox,  14  Q.  B.  D.  153  ;  54  L,  J.,  M.  C.  41 ;  52 
L.  T.  25  ;  33  W.  R.  396  ;  49  J.  P.  374 ;  15  Cox, 
C.  C.  611— C.  C.  R. 

G.  and  R.  were  partners  under  a  deed  of 
partnership.     M.  brought    an    action  against 
R.  &  Co.,  and  obtained  judgment  therein,  and 
issued  execution  against  the  goods  of  R.  The 
goods  seized  in  execution  were  then  claimed 
by  C.  as   his  absolute  property  under  a  bill 
of   sale   executed   in    his   favour  by  B.  at  a 
date  subsequent  to  the  above-mentioned  judg- 
ment.    An  interpleader  issue  was  ordered  to 
determine  the  validity  of  the  bill  of  sale,  and 
upon  the  trial  of  this  issue,  the  partnership  deed 
was  produced  on  C.'s  behalf,  bearing  an  indorse- 
ment purporting  to  be  a  memorandum  of  dis- 
solution of  the  said  partnership,  prior  to  the 
commencement  of   the  action  by  M.    Subse- 
quently C.  and  R.  were  tried  and  convicted  upon 
a  charge  of  conspiring  to  defraud  M.,  and  noon 
that  trial  the  case  for  the  prosecution  was,  that 
the  bill  of  sale  was  fraudulent,  that  the  partner- 
ship between  R.  and  C.  was  in  truth  subsisting 
when  it  was  given,  and  that  the  memorandum  of 
dissolution  indorsed  on  the  deed  was  put  there 
after  M.  had  obtained  judgment,  and  fraudu- 
lently ante-dated,  the  whole  transaction  being,  it 
was  alleged,  a  fraud  intended  to  cheat  M.  of  the 
fruits  of  his  execution.    Upon  the  trial  a  solicitor 
was  called  on  behalf  of  the  prosecution  to j>roie 
that  after  M.  had  obtained  the  judgment  G.  and 
R.  together  consulted  him  as  to  how  they  could 
defeat  M.'s  judgment,  and  as  to  whether  a  bill  of 
sale  could  legally  be  executed  by  R.  in  favour  of 
C,  so  as  to  defeat  such  judgment,  and  that  no 
suggestion  was  then  made  of  any  dissolution  of 
partnership  having  taken  place.     The  reception 
of  this  evidence  being  objected  to,  on  the  ground 
that  the  communication  was  one  between  solicitor 
and  client,  and  privileged:   the  evidence  ^w* 
received,  but  the  question  of  whether  it  was 
properly  received  was  reserved  for  this  court  :— 
Held,  that  the  evidence  was  properly  received. 
Cromach  v.  Heatheote  (2  B.  &  B.  4) ;  Bex  t. 
Smith  (1  Phil.  &  Arn.  on  Evidence,  118)  ;  and 
Doe    v.  Harris  (5    C.  &    P.   592),  overruled. 
Follett  v.  Jefferyes  (1  Sim.,  N.  S.  1)  ;  BusteU 
v.  Jackson  (9   Hare,  387) ;    and   Garttti*  t. 
Out  ram  (26  L.  J.,  Ch.  113),  approved.    lb. 

Judgment  having  been  signed  against  a  married 
woman  in  an  action,  an  inquiry  was  directed 
before  a  master  whether  she  was  possessed  of 
any  separate  estate.  The  solicitor  to  the  trustees 
of  her  marriage  settlement,  being  subpoenaed  by 
the  judgment  creditor  upon  the  inquiry  as  a 
witness,  and  to  produce  documents,  stated  that 
the  deed  of  settlement  was  in  his  possession  as 
solicitor  to  the  trustees,  but  refused  to  state  the 
names  of  the  trustees  or  produce  the  deed  on  the 
ground  of  professional  privilege  : — Held,  that 
he  must  state  the  names  of  the  trustees  and  pro- 
duce the  deed.  Bur  fill  v.  Tanner,  16  Q.  B.  D* 
1  ;  55  L.  J.,  Q.  B.  53 ;  53  JL.  T.  445  ;  34  W.  B.35 
— C.A. 


757 


EVIDENCE— On  Commission. 


758 


VIII.  EXAKDTATIOH  OF  WITNESSES 
TINDER  COMMISSION. 

1.  WHEN  WITNESS  ABROAD. 

¥ktn  granted.]— L.  granted  to  T.  an  exclu- 
sive licence  to  use  in  England  a  certain  patented 
invention  for  making  sugar.    This  invention  was 
also  patented  in  America,  and  M.,  an  American 
tagar  manufacturer,  had  a  licence  for  its  use  in 
the  United  States.    L.  brought  his  action  against 
T.  to  have  the  licence  rectified,  alleging  that  the 
real  agreement  between  the  parties  was  that  the 
licence  was  not  to  interfere  with  the  importation 
into  England  of  sugar  made  abroad  under  the 
patent    The  statement  of  claim  alleged  that  M. 
fad  introduced  L.  to  T.}  and  that  the  negotia- 
tions between  L.  and  T.  had  proceeded  on  the 
understanding  that  sugar  made  abroad  under 
the  patent  might  be  imported  ;  but  there  was  no 
allegation,  nor  did  it  appear  in  evidence,  that  M. 
had  taken  part  in  the  negotiations.    L.  applied 
to  have  a  commission  to  examine  M.  in  America  : 
—Held,  that  if  it  appeared  that  the  evidence  of 
M.  would  be  material,  the  commission  ought  to 
be  granted,  there  being  nothing  to  shew  that  M. 
was  keeping  out  of  the  way  to  avoid  cross-exami- 
nation.   Berdan  v.  Greenwood  (20  Ch.  D.  764, 
n.)  distinguished.     Langen  v.  Tate,  24  Ch.  D. 
522 ;  53  L.  J.,  Ch.  861  ;  49  L.  T.  758  ;  32  W.  R. 
189— C.  A. 

Bat  held,  that,  on  the  materials  before  the 
court,  the  commission  should  be  refused,  there 
being  nothing  to  show  that  M.  had  taken  such 
part  in  the  negotiations  as  to  make  his  evidence 
material.  The  court,  however,  as  an  indulgence, 
gave  the  plaintiff  an  opportunity  of  adducing 
evidence  to  show  that  M.  could  give  material 
evidence.    lb. 

Where  it  is  sought  to  have  a  material  witness 
examined  abroad,  and  the  nature  of  the  case  is 
such  that  it  is  important  that  he  should  be 
examined  here,  the  party  asking  to  have  him 
examined  abroad  must  show  clearly  that  he 
cannot  bring  him  to  this  country  to  be  examined 
*t  the  trial.  Lawson  v.  Vacuum  Brake  Com- 
JMjr,  27  Ch.  D.  137  ;  54  L.  J.,  Ch.  16  ;  51  L.  T. 
275;  33  W.  B.  186— C.  A. 

If  it  is  shown  that  there  are  material  witnesses 
resident  abroad  whom  a  party  wishes  to  examine, 
a  commission  to  examine  them  abroad  will  be 
granted  if  there  is  any  reasonable  ground  for 
their  not  coming  here,  unless  a  case  is  made 
•bowing  that  it  is  necessary  for  the  purposes  of 
justice  that  they  should  be  examined  in  England. 
Amour  v.  Walker,  25  Ch.  D.  673  ;  53  L.  J.,  Ch. 
41S ;  50  L.  T.  292 ;  32  W.  R.  214— C.  A. 

A  party  is  not  entitled  to  a  commission  ex 
debito  justitue  upon  showing  that  a  material 
witness  is  resident  out  of  the  jurisdiction.  The 
panting  of  the  commission  is  a  matter  of 
judicial  discretion  to  be  exercised  according  to 
the  particular  circumstances  of  each  case.  In  a 
case  where  it  was  shown  that  witnesses  were  out 
of  the  jurisdiction  and  their  examination  on 
commission  abroad  would  be  much  less  expensive 
than  bringing  them  to  the  trial  in  England,  and 
there  was  nothing  to  show  that  their  presence  in 
court  was  essential : — Held,  that  the  commission 
thonld  issue.  Cbch  v.  Alleock,  21  Q.  B.  D.  178  ; 
57  L.  J.,  Q.  B.  489  ;  36  W.  R.  747— C.  A. 

Piztiss  to  Ajetion— Plaintiit]— The  court  has 


power  to  order  a  commission  to  issue  for  the 
examination  abroad  of  a  party  to  an  action, 
though  the  circumstances  which  will  induce 
the  court  to  make  such  an  order  are  different 
from  those  required  to  be  shown  on  an  applica- 
tion for  a  commission  to  examine  a  mere  witness. 
Where  a  plaintiff  residing  abroad  claimed  as  an 
heir-at-law  who  had  been  missing  for  twenty- 
four  years,  Kay,  J.,  ordered  a  commission  to 
issue  to  take  his  evidence  abroad,  without  pre- 
judice to  the  right  of  the  defendant  to  cross- 
examine  him  at  the  trial  in  England  in  the 
presence  of  witnesses  who  could  speak  to  his 
identity  :— Held,  on  appeal,  that  the  order  must 
be  varied  by  directing  that  the  depositions  of  the 
plaintiff  were  not  to  be  read  at  the  trial  without 
the  consent  of  the  defendant.  Nadin  v.  Bassett, 
25  Ch.  D.  21 ;  53  L.  J.,  Ch.  253  ;  49  L.  T.  454  ; 
32  W.  R.  70— C.  A. 

Affidavit  in  Support.] — A  plaintiff  who 


desires  to  be  examined  on  commission  must  make 
out  by  affidavit  a  strong  prima  facie  case  why  he 
should  not  attend  and  be  examined  at  the  trial ; 
and  the  onus  is  not  on  the  defendant  in  the  first 
instance  to  show  why  he  should  attend  to  be 
examined  at  the  trial.  A  plaintiff  is  not  entitled 
to  be  examined  on  commission  in  the  absence  of 
any  affidavit  by  himself,  showing  strong  and 
positive  reasons  for  his  not  attending  to  be 
examined  at  the  trial.  Light  v.  Antioosti  Com' 
pony,  58  L.  T.  25— D. 

Form  of  Commission— Misdescription  of  Court 
— Croas-examination.]  —  In  a  divorce  suit  the 
petitioner  obtained  a  commission  to  examine 
witnesses  in  India,  addressed  to  "  The  Judges  of 
the  Supreme  Court  at  Calcutta."  The  Supreme 
Court  was  abolished  by  24  &  25  Vict.  c.  104,  by 
which  a  "High  Court  of  Judicature  at  Fort 
William  in  Bengal,"  was  established,  with  all 
the  jurisdiction,  power  and  authority  of  the 
abolished  court.  Witnesses  were  examined  under 
the  commission,  and  cross-examined  on  behalf  of 
the  respondent : — Held,  that  the  evidence  must 
be  admitted  at  the  trial,  as  the  commission  was 
in  effect  addressed  to  the  judges  of  whatever  was 
the  highest  court  at  Calcutta,  and  the  judges  of 
the  High  Court  answered  the  description,  and 
that  the  cross-examination  of  witnesses  was  no 
waiver  of  the  right  to  object  to  the  evidence. 
Wilson  v.  WOmm,  9  P.  D.  8  ;  49  L.  T.  430 ;  82 
W.  R.  282—C.  A. 

Names  of  Witnesses.]— If  the  names  of 

some  of  the  witnesses  to  be  examined  on  a  com- 
mission abroad  are  specified,  the  court  may  grant 
the  commission  for  the  examination  of  the  wit- 
nesses named  "and  others."  Nadin  v.  Bastett, 
supra. 

Single  Commissioner — Administration  of 

Oath.] — When  a  single  commissioner  is  appointed 
to  take  evidence  abroad,  the  commission  should 
authorize  him  to  administer  the  oath  to  himself. 
Wilton  v.  Be  Coulon,  22  Ch.  D.  841  ;  53  L.  J., 
Ch.  248  ;  48  L.  T.  514;  31  W.  R.  839— Fry,  J. 


2.     WHEN    WITNESS   WITHIN    JURIS- 
DICTION. 

Svidenee     do    bone    esse — Witness    above 
Seventy  Tears  of  Age— Affidavit]  —  The  court 


759 


EVIDENCE— On  Commission. 


760 


has  jurisdiction  on  a  proper  occasion,  when  it  is 
"  necessary  for  the  purposes  of  justice/'  to  make 
an  order  for  an  examination  de  bene  esse  of 
witnesses  upon  an  ex  parte  application,  the  order 
being  taken  by  the  applicant  at  his  peril,  and 
subject  to  the  risk  of  being  discharged  on  suffi- 
cient grounds.  An  order  was  made  in  chambers 
on  an  ex  parte  application  by  the  plaintiffs  to 
examine  de  bene  esse  thirty  witnesses  upon  an 
affidavit  of  the  plaintiffs'  solicitor  merely  stating 
that  he  was  advised  that  they  were  material 
witnesses — that  they  were  all  above  seventy  years 
of  age,  and  that  he  was  advised  and  believed 
that  by  reason  of  their  age  it  was  desirable  that 
their  examination  should  be  taken  without 
delay.  This  order  was  discharged  on  motion  in 
court,  mainly  on  the  ground  that  the  affidavit 
was  insufficient : — Held,  that  the  affidavit  did  not 
satisfy  the  requirements  of  Ord.  XXXVIII.  r.  3, 
but  leave  was  given  to  put  in  a  further  affidavit 
stating  what  information  had  been  obtained,  and 
what  steps  had  been  taken  to  obtain  such  infor- 
mation as  to  the  age  of  the  different  witnesses, 
and  also  stating  generally  the  facts  which  the 
particular  witnesses  were  going  to  depose  to. 
Although  the  fact  that  a  witness  is  seventy  years 
old  is  generally  a  good  prima  facie  ground  for  an 
order  for  his  examination  de  bene  esse,  such  a 
practice  will  not  necessarily  be  applied  to  an 
extraordinary  case,  e.  g.,  where  an  order  has 
been  made  to  examine  thirty  witnesses.  On  a 
subsequent  application  made  on  a  further  affi- 
davit of  the  solicitor,  in  which  he  divided  the 
witnesses  into  four  classes  who  were  to  depose 
to  four  different  heads  of  evidence  : — The  court 
declined  to  allow  the  examination  de  bene  esse  of 
ten  of  the  proposed  witnesses  who  were  between 
seventy  and  seventy-five  years  old,  without  pre- 
judice to  a  subsequent  application  for  leave  to 
examine  them  on  grounds  other  than  age,  but 
allowed  the  other  twenty  witnesses  above  seventy- 
five  to  be  examined  de  bene  esse  upon  the  under- 
taking of  the  plaintiffs'  counsel  to  produce  at  the 
trial,  if  so  requested  by  the  defendant,  any  of 
such  witnesses  who  might  be  then  alive.  Bidder 
v.  Bridges,  26  Ch.  D.  1  ;  50  L.  T.  287  ;  32  W.  R. 
445  —  C.  A.  Affirming  53  L.  J.,  Ch.  479  — 
Kay,  J. 


Evidence  rejected  at  Trial — Appeal.] — 


was  illegitimate,  to  participate,  could  then  bring 
an  action  to  perpetuate  the  testimony.  Stoer, 
In  re,  9  P.  D.  120  ;  51  L.  T.  141 ;  32  W.  R.  100& 
— C,  A. 


Delivery  of  Defence,  Default  in.]— In 


Where  the  evidence  of  a  witness  had  been  re 
jected  at  the  hearing  of  an  action,  and  there 
was  an  appeal  against  that  decision,  the  witness 
being  dangerously  ill,  the  Court  of  Appeal  al- 
lowed his  evidence  to  be  taken  dc  bene  esse 
before  a  special  commissioner  pending  the  appeal; 
the  appellant  undertaking  to  abide  by  any  order 
which  the  court  might  hereafter  make  as  to  the 
costs  of  the  application  and  the  costs  of  the 
examination.  Solicitor  to  the  Treasury  v.  White, 
55  L.  J.,  P.  79— C.  A. 

Action  to  perpetuate  Testimony -— Illegiti- 
macy.] —  A  lunatic,  having  several  children, 
obtained  a  divorce  from  his  wife  on  the  ground 
of  her  adultery.  It  was  alleged  that  one  of  the 
children  born  before  the  divorce  was  illegitimate, 
and  the  committee  presented  a  petition  that  pro- 
ceedings might  be  taken  to  perpetuate  the  testi- 
mony of  the  illegitimacy  :  —  Held,  that  the 
proper  course  was  for  the  court  to  settle  some  of 
the  lunatic's  property  on  his  children,  and  the 
legitimate  children,  having  raised  the  question 
as  to  the  right  of  the  child,  who  it  was  alleged 


an  action  to  perpetuate  testimony,  the  time  for 
delivery  of  defence  having  expired,  and  the  de- 
fendant not  having  applied  for  an  extension  of 
time,  the  plaintiff  obtained,  on  motion,  an  order 
that  the  action  might  proceed,  notwithstanding 
the  defendant's  default,  and  that  he  might  be  at 
liberty  to  examine  the  witnesses  (one  of  whom 
was  of  advanced  age  and  in  failing  health)  as  if 
the  pleadings  were  closed.  Bvte  (Marquess)  v. 
James,  33  Ch.  D.  157  ;  55  L.  J.,  Ch.  658 ;  55 
L.  T.  133  ;  34  W.  R.  754— V.-C.  B. 

Form  of  Order.] — In  an  action  for  replacement 
of  railway  stock  alleged  to  have  been  transferred 
from  the  name  of  the  plaintiff  by  means  of  a 
forged  transfer,  an  attesting  witness  of  the 
execution  of  the  transfer  was  dangerously  ill. 
On  motion  ex  parte  on  behalf  of  the  plaintiff 
for  leave  to  examine  the  witness  de  bene  ese, 
and  for  the  appointment  of  a  special  examiner : 
— Held,  that  it  was  a  proper  case  to  make  the 
order,  the  judge  directing  the  order  to  be  drawn 
up  in  accordance  with  the  form  in  Seton  on 
Decrees  (4th  edit.),  1635,  omitting  the  words, 
"  And  it  is  ordered  that  the  plaintiff  be  at  liberty 
to  give  such  depositions  in  evidence  at  the  trial 
of  this  action"  :— That,  at  the  trial  of  the  action, 
before  leave  to  use  the  evidence  was  given,  it 
would  be  necessary  to  prove  that  the  witness  wa» 
not  capable  of  being  examined.  Barton  v.  North 
Staffordshire  Bailway,  56  L,  T.  601 ;  35  W.  R. 
536 — Kay,  J. 

Appointment  of  Special  Examiner.]  —  The 
court  refused  to  appoint  a  special  examiner, 
holding  that  the  matter  must  go  to  the  examiner 
in  rotation.    lb. 

Itis  not  now  the  practice  of  the  court  to  appoint 
a  special  examiner  to  take  a  country  examina- 
tion, even,  for  instance,  in  a  Welsh  case,  where 
it  is  alleged  to  be  necessary  that  the  examina- 
tion should  be  taken  by  a  person  conversant 
with  the  Welsh  language.  In  such  a  case  the 
examination  will  be  referred  in  the  usual  way  to 
one  of  the  examiners  of  the  court,  who  is  en- 
titled, if  necessary,  to  the  assistance  of  an  inter- 
preter.   Bute  (Marquess)  v.  James,  supra. 

Examination — SubpcBna.] — A  witness  required 
to  attend  before  an  examiner  under  Ord. 
XXXVII.  r.  20,  is  not  bound  to  attend  unless 
served  with  a  subpoena.  Stuart  v.  Balkis  €#*» 
pany,  53  L.  J.,  Ch.  790  ;  50  L.  T.  479  ;  32  W.  R. 
676— Chitty,  J. 

Priority   of  Witnesses.]  —  There  is  no 

general  rule  as  to  the  order  of  priority  in  which 
witnesses  are  to  be  examined  before  an  ex- 
aminer ;  but  the  examiner  may  exercise  his 
discretion  as  to  the  most  convenient  order  in 
which  the  examination  of  the  witnesses  may  be 
taken.    lb. 


Adjournment — Power  to  EecalL]— After 


a  witness  has  been  examined  before  an  examiner 
of  the  court  and  his  depositions  have  been 
signed,  the  examiner  has  power  to  adjourn  the 
examination,  and  the  witness  may  be  recalled 


761 


EVIDENCE— On  Affidavit. 


762 


and  is  bound  to  attend  upon  notice  given  to  him 
tint  his  attendance  is  required.  Metropolitan 
(Brush)  Electric  Light  and  Power  Company, 
In  re,  Offor,  Ex  parte,  54  L.  J.,  Ch.  253  ;  51 
L.  T.  816— Kay,  J. 

Csrtmeate  not  Taken  up.] — Where  an  ex- 
aminer's certificate  has  not  been  taken  up,  its 
effect  will  not  be  allowed  to  be  stated  in  court. 
Stutrt  t.  Balku  Company,  supra. 


IX.    EVIDENCE  OH  AFFIDAVIT. 

1.    PRACTICE  GENERALLY. 

Consul  unable  to  Administer  Oath.]— Where, 
by  German  law,  a  British  consul  is  not  allowed 
to  administer  an  oath,  the  affidavit  maybe  sworn 
before  a  German  judge.  Ihwcus,  In  goods  of,  9 
P.  D.  241  ;  54  L.  J.,  P.  47  ;  33  W.  R.  323 ;  48 
J.  P.  743— Hannen,  P. 

Sworn  before  Votary  in  Foreign  Country.] — 

Before  and  after  the  Act  15  &  16  Vict.  c.  86, 

affidavits   sworn  in    foreign  parts  out  of   her 

Majesty's  dominions  before  a  notary  public  might 

be  filed,  and  that  practice  continued  in  force 

down  to  the  time  when  the  Rules  of  the  Supreme 

Court,  1883,  came  into  operation: — Held,  that 

this  practice  is  not  abrogated  by  Ord.  XXXVIII. 

r.  6,  and  Ord.  LXXII.  r.  2,  of  the  Rules  of  1883  ; 

and  may  be  followed,  at  any  rate  in  cases  where 

the  practice  under  the  Rules  of  1883  would  be 

▼err  inconsistent   Cooke  v.  Wilby,  25  Ch.  D.  769  ; 

53  L.  J.,  Ch.  692  ;  50  L.  T.  162  ;  32  W.  R.  379— 

Chitty,  J. 

Sworn  before  Clerk  of  Foreign  Circuit  Court.] 
—An  affidavit  was  sworn  before  the  clerk  of  the 
•circuit  court  of  Monroe  county,  in  the  State  of 
Wisconsin,  U.  8.,  Chicago,  distant  about  250 
miles  from  Monroe  county,  being  the  nearest 
place  where  a  British  consul  or  vice-consul  was 
resident  The  British  vice-consul  at  Chicago 
-certified  that  the  clerk  of  the  circuit  court  had 
authority  to  administer  oaths.  The  court,  on 
motion  ex  parte  for  leave  to  file  the  affidavit, 
made  the  order.  Brittlebank  v.  Smith,  50  L.  T. 
491— V.-C.  B. 

Bcseription  of  Deponent]— In  support  of  a 
petition  for  the  appointment  of  a  new  trustee  in 
the  place  of  a  trustee  who  had  become  lunatic, 
two  affidavits  were  filed  as  to  the  fitness  of  the 
person  proposed  to  be  appointed.  The  deponent 
of  one  affidavit  was  described  as  a  "  gentleman," 
the  other  deponent  being  described  as  an  ac- 
countant Each  affidavit  described  the  proposed 
new  trustee  as  a  "gentleman,"  but  also  stated 
that  he  was  a  person  of  independent  means  : — 
Held,  that  the  description  of  the  deponent  as  a 
4  gentleman  '*  was  insufficient,  that  the  position 
in  life  of  the  deponent  ought  to  be  stated  so  as 
enable  the  court  to  judge  whether  his  evidence 
was  reliable,  but  that  the  other  affidavit  was 
sufficient    Horwood,  In  re,  55  L.  T.  373— C.  A. 


t's  Abode.l— By  Order  XXXVIII.  r. 
I,  every  affidavit  shall  state  the  description  and 
true  place  of  abode  of  the  deponent;  where 
there/ore  a  deponent  gave  an  illusory  address  or 
ao  address  at  all,  the  court  would  not  allow 


them  to  be  used.    Hyde  v.  Hyde,  59  L.  T.  523 
— Hannen,  P. 

Omission  of  Title  of  Commissioner.]  —  An 
affidavit  was  sworn  before  a  commissioner  to  ad- 
minister oaths,  but  in  the  jurat  he  merely  signed 
his  name,  and  did  not  add  his  title  as  commis- 
sioner : — Held,  that  notwithstanding  this  omis- 
sion, the  affidavit  was  sufficient  Johnson,  Em 
parte,  Chapman,  In  re,  26  Ch.  D.  338  ;  53  L.  J., 
Ch.  763  ;  32  W.  R.  693— C.  A. 

Striking  out  for  Prolixity. J— Although  there 
is  no  rule  of  court  specially  giving  power  to  the 
court  to  take  affidavits  off  the  file  for  prolixity, 
yet  the  court  has  an  inherent  power  to  do  so  in 
order  to  prevent  its  records  from  being  made  the 
instruments  of  oppression.  Hill  v.  Hart-Davit, 
26  Ch.  D.  470 ;  53  L.  J.,  Ch.  1012  ;  51  L.  T.  279 
— C.A. 

Power  of  Court  to  exclude.] — The  court,  if  it 
be  of  an  opinion  that  such  a  course  is  necessary 
for  the  purposes  of  justice,  has  authority  to  ex- 
clude affidavit  evidence  altogether,  and  to  direct 
that  the  same  shall  not  be  used,  but  that  the 
witnesses  shall  be  examined  orally  at  the  trial. 
Lovell  v.  WallU,  53  L.  J.,  Ch.,  494  ;  49  L.T.  593 
— Kay,  J. 

Irregularity— Illiterate  Witness.]— Affidavits 
made  by  an  illiterate  person  were  sworn  with 
the  usual  form  of  jurat  not  containing  the  certifi- 
cate required  by  Ord.  XXXVIII.  r.  13.  The 
managing  clerk  of  the  deponent's  solicitor  de- 
posed that  he  had  prepared  the  affidavits  from 
the  deponent's  personal  instructions,  that  he 
carefully  read  them  over  to  him  before  they  were 
sworn,  and  that  the  deponent  appeared  perfectly 
to  understand  them.  It  was  not,  however,  de- 
posed that  the  affidavits  were  read  over  in  the 
presence  of  the  commissioner  : — Held,  that  there 
was  no  sufficient  evidence  to  satisfy  the  court 
that  the  affidavits  were  read  over  to  and  ap- 
peared to  be  perfectly  understood  by  the  depo- 
nent within  the  meaning  of  Ord.  XXXVIII.  r. 
13,  and  that  the  affidavits  must  be  taken  off  the 
file.  Longstafe,  In  re,  Blenkarn  v.  Long  staff e, 
54  L.  J.,  Ch.  616  ;  52  L.  T.  681— Kay,  J. 

Right  to  Use  —  Further  Consideration.]  — 
Where  proceedings  in  an  action  had  been  carried 
on  under  an  order  made  in  pursuance  of  Ord. 
XV. ,  and  there  had  been  no  trial  of  the  action, 
the  court,  on  further  consideration  of  the  action, 
allowed  an  affidavit  to  be  read  which  had  not 
been  before  the  chief  clerk,  and  therefore  was 
not  mentioned  in  the  certificate.  Michael,  In 
re,  Dessau  v.  Lewin,  52  L.  T.  609 — Kay,  J. 

Attesting  Witness  not  to  ho  Found.]— 

In  a  suit  for  revocation  of  probate  on  the  grounds 
of  undue  execution,  and  incapacity,  where  it 
appeared  that  every  effort  had  been  made  to  find 
one  of  the  attesting  witnesses,  but  without  suc- 
cess— the  court  allowed  the  affidavit  made  by 
him  eight  years  before,  at  the  time  of  proving 
the  will  at  the  district  registry,  to  be  admitted 
as  evidence  of  execution  and  capacity.  Gornall 
v.  Mason,  12  P.  D.  142 ;  56  L.  J.,  P.  86 ;  57 
L.  T.  601  ;  35  W.  R.  672  ;  61  J.  P.  663— Butt,  J. 

Time  for  Filing.] — On  the  hearing  of  a  sum- 
mons  adjourned   from   chambers   into    Court, 


L  . 


768 


EVIDENCE— On  Affidavit 


764 


affidavits  filed  after  the  time  fixed  by  the  chief 
clerk  for  the  filing  of  evidence  cannot  be  used 
before  the  Judge  in  Court  unless  special  leave  to 
use  the  new  affidavits  has  been  given  either  by 
the  Judge  or  the  chief  clerk.  This  rule  does  not 
apply  where  no  time  has  been  fixed  by  the  chief 
clerk  for  the  filing  of  evidence.  Chifferiel, 
In  re,  Chifferiel  v.  Watson,  58  L.  J.,  Ch.  137 ; 
58  L.  T.  877  ;  36  W.  R.  806— North,  J. 

Used  before  Cross-examination  completed.]— 
Semble,  that  the  fact  that  a  cross-examination  on 
affidavit  is  not  concluded  does  not  prevent  the 
court  from  looking  at  the  affidavit.  Lewis  v. 
James,  54  L.  T.  260— C.  A. 


2.  CROSS-EXAMINATION. 

Power  of  Court  to  use — Cross-examination  not 
completed.] — See  preceding  case. 

In  what  Cases — 8ummoni  for  Administration 
by  Infants.] — Infants  were  entitled  under  a  will 
to  legacies  of  considerable  amount,  and  they 
were  also  entitled  in  remainder  subject  to  the 
life  interests  of  four  persons  to  seven-elevenths 
of  the  residuary  estate.  An  originating  summons 
was  taken  out  by  one  of  the  tenants  for  life  and 
the  infants  asking  for  administration  of  the 
testator's  estate.  Affidavits  were  filed  in  support 
of  the  summons,  and  the  witnesses  were  cross- 
examined  at  considerable  length : — Held,  that 
the  cross-examination  was  most  improper,  and 
that  it  should  not  be  resorted  to  in  such  a  case, 
and  a  direction  was  given  that  in  future  cross- 
examinations  should  not  be  resorted  to  in  such 
cases  without  an  application  to  the  court. 
Wilson,  In  re,  Alexander  v.  Colder,  54  L.  J., 
Ch.  487— Pearson,  J. 


form  of  Notice  requiring  Production  of 


Deponents.] — On  the  prosecution  of  an  inquiry 
added  to  a  decree,  one  party  filed  an  affidavit  by 
a  person  resident  in  South  America,  and  gave 
notice  to  read  it,  whereupon  the  opposite  party 
gave  notice  that  he  required  to  cross-examine 
the  deponent,  not  saying  when,  where,  or  before 
whom  -.—Held,  that  Ord.  XXXVIII.  r.  28,  ex- 
cluding an  affidavit  from  being  read,  except  by 
special  leave,  unless  the  deponent  is  produced 
for  cross-examination — even  supposing  that  Ord. 
XXXVIII.  rr.  21,  22,  make  that  rule  applic- 
able to  evidence  on  an  inquiry,  and  supposing 
that  Ord.  XXXVIII.  r.  28,  applies  to  a  witness 
resident  out  of  the  jurisdiction — did  not  exclude 
the  present  affidavit,  as  the  notice  for  cross- 
examination  did  not  follow  the  terms  of  Ord. 
XXXVIII.  r.  28  -.—Held,  also,  that  the  order  of 
the  Court  of  Appeal  admitting  the  affidavit  as 
evidence,  without  prejudice  to  any  application 
by  the  opposite  party,  within  fourteen  days,  for 
the  cross-examination  of  the  deponent  in  any 
place  in  South  America,  before  some  proper  per- 
son to  be  appointed  for  that  purpose,  was  right 
under  all  the  circumstances.  Concha  v.  Concha, 
11  App.  Cas.  541  ;  56  L.  J.,  Ch.  257  ;  56  L.  T. 
522  ;  35  W.  R.  477— H.  L.  (E.) 


Discretion   of  Court   or   Judge.]— The 


court  or  judge  has  a  discretion  in  making  an 
order  under  Order  XXXVIII.  r.  1,  for  the 
attendance  for  cross-examination  of  a  person 


who  has  made  an  affidavit,  and  is  not  bound  to 
make  such  an  order.  La  Trinidad  v.  Browne,% 
W.  R.  138— North,  J. 

Expenses  of  Production  of  Deponent]— The 
provision  in  Rules  of  Court,  1875,  OtcLXXaVIIL 
r.  4,  that  the  party  producing  deponents  for 
cross-examination  upon  their  affidavits  shall  not 
be  entitled  to  demand  the  expenses  thereof  in 
the  first  instance  from  the  party  requiring  such 
production,  is  confined  to  a  cross-examination  of 
the  deponents  before  the  court  at  the  trial  of  the 
action,  and  does  not  apply  to  a  cross-examina- 
tion on  an  affidavit  filed  after  decree  for  the 
purpose  of  proceedings  in  chambers.  Knight, 
In  re,  Knight  v.  Gardner,  25  Ch.  D.  297 ;  5S 
L.  J.,  Ch.  183  ;  49  L.  T.  545  ;  32  W.  B.  469— 
C.  A. 

The  direction  in  Ord.  XXXVIII.  r.  28,  of 
Rules  of  the  Supreme  Court,  1883,  that  the 
party  producing  a  deponent  for  cross-examina- 
tion shall  not  be  entitled  to  demand  the  ex- 
penses thereof  in  the  first  instance  from  the 
party  requiring  such  production,  taken  in  con- 
junction with  Ord.  XXXVII.  r.  21,  of  the  same 
rules,  which  provides  that  evidence  taken  subse- 
quently to  the  hearing  or  trial  of  any  cause  or 
matter  shall  be  taken  as  nearly  as  may  be  in 
the  same  manner  as  evidence  taken  at  or  with  a 
view  to  a  trial,  is  not  confined  to  the  cross-exami- 
nation of  the  deponent  before  the  court  at  the 
trial  of  the  action,  but  applies  also  to  a  cross- 
examination  before  the  chief  clerk  in  chamber* 
or  before  an  examiner.  Backhouse  v.  Alcoek,2& 
Ch.  D.  669  ;  54  L.  J.,  Ch.  842  ;  52  L.  T.  342 ;  85 
W.  R.  407— Chitty,  J. 

The  effect  of  Ord.  XXXVIII.  r.  28,  of  the  Rules 
of  the  Supreme  Court,  1883,  which  provides  that 
the  party  producinga  deponent  for  cross-examina- 
tion shall  not  be  entitled  to  demand  the  expenses 
thereof  in  the  first  instance  from  the  narty  re- 
quiring such  production,  taken  in  conjunction 
with  Ord.  XXXVII.  r.  22,  which  provides  that 
the  practice  with  reference  to  the  examination, 
cross-examination,  and  re-examination  of  wit- 
nesses at  a  trial  shall  extend  and  be  applicable 
to  evidence  taken  in  any  cause  or  matter  at  any 
stage,  is  that  the  expenses  of  production  of  a 
witness  for  cross-examination  upon  affidavit 
before  a  trial  must  be  borne  in  the  first  instance 
by  the  party  producing  such  witness.  Mansd  r. 
Clanricarde,  54  L.  J.,  Ch.  982  ;  53  L.  T.  496— 
Kay,  J. 


After  Judgment  in  Administration  Action.) 


— The  plaintiff  after  judgment  in  an  administra- 
tion action  obtained  an  order  for  cross-examina- 
tion of  defendant  (the  executor)  upon  his  affidavit, 
in  answer  to  inquiries  directed  by  the  judgment, 
denying  possession  of  any  part  of  the  testators 
estate.  The  defendant  declined  to  attend  before 
the  examiner  until  plaintiff  had  paid  his  ex- 

Senses.  The  plaintiff  having  subsequently  served 
efendant  with  a  subpoena  moved  that  he  be 
ordered  to  attend  at  nis  own  expense :— Held, 
that  it  was  open  to  the  plaintiff  to  combine  the 
two  methods  of  procedure  and  that  the  defendant 
was  bound  to  produce  himself  at  his  own  ex- 
pense for  cross-examination  ;  and  further,  that 
regarding  the  defendant  as  a  deponent  whose 
attendance  was  required  for  cross-examination, 
the  penalty  imposed  by  Ord.  XXXVIIL  r.28, 
of  having  his  affidavit  rejected,  did  not  relieve 


766 


EXECUTION. 


766 


him  from  the  obligation  to  attend  at  his  own 
expense.  Baker.  In  re,  Connell  v.  Baker,  29 
Ch  D.  711 ;  64  L.  J.,  Ch.  844  ;  52  L.  T.  421— 
Chitty,  J. 


EXCISE. 


See  REVENUE. 


EXECUTION. 

1.  Verm  of  Writ,  766. 
1  Fieri  Facia*,  766. 

3.  Slept,  767. 

4.  Sequestration,  767. 

5.  Equitable  Execution — Receiver,  769. 

&  Charging  Order— Stock*  and  Share*,  772. 

7,  Discovery  in  Aid  of,  77S. 

1  Bight*  of  Execution  Creditor,  774. 

9.  Attachment  of  Debts—See  ATTACHMENT. 

10.  Validity  and  Effect  a*  against  Trustee  in 

Bankruptcy— See  BANKRUPTCY,  XI.,  1. 

11.  Seire  facia*— See  COMPAOT,  X 

12.  Sheriff1*  Duty  on— See  8HERIFF. 

13.  Casts  of  Execution. 

a.  In  General — See  SHERIFF. 

b.  Li  County  Court — See  ante,  col.  546. 
It  Against  Boiling  Stock  of  Railway  Company 

—See  Railway. 
15.  Staying   Execution  pending  Appeal  —  See 

APPEAL. 


1.  Form  op  Writ. 

Ii  OeneralJ— The  true  interpretation  of  the 
words,  Old.  XI,  1 1,  r.  14,  of  the  Roles  of  1883, 
"The  forms  used  in  Appendix  H.  shall  be 
followed,  with  such  Yariations  as  circumstances 
■ty  require " — is,  that  the  forms  in  Appendix 
H.  can  only  be  varied  for  the  purpose  of  making 
them  to  be  in  accordance  with  the  terms  of  the 
lodgment  or  order.  Boswell  v.  Coaks,  57  L.  J., 
Ca.  101 ;  57  L.  T.  742  ;  36  W.  R.  65— C.  A. 


2.  Fieri  Facias. 

Whether  Goods  those  of  Apparent  Owner  or 
bttstato—  Business  carried  on.]— After  the 
death  in  May,  1880,  of  A.,  a  shopkeeper,  his 
osoghter  B.  carried  on  the  business.  Judgment 
was  obtained  against  B.  personally,  and  a  fi.  fa. 
«ts  issued  thereon  and  delivered  to  the  sheriff 
m  March,  1881 .  At  this  time  B.  was  in  possession 
of  shop  goods  of  considerable  value,  some  of 
which  had  been  the  property  of  A.  in  his  lifetime, 
■on  the  rest  were  purchased  out  of  the  proceeds 
of  sale  of  other  goods  of  A.  In  an  action  for  a 
false  return  against  the  sheriff,  who  had  returned 
■alia  bona,  he  claimed  to  have  a  verdict  entered 
far  him  on  the  ground  that  the  goods  were  not 
the  goods  of  B.  No  evidence  was  given  of  any 
testamentary  disposition  by  A. : — Held,  that  in 
the  absence  of  any  proof  that  the  trading  was 
carried  on  by  B.  as  personal  representative  of  A., 


the  onus  of  which  lay  on  the  sheriff,  the  goods 
purchased  by  her  after  A.'s  death  could  not  be 
held  to  be  the  assets  of  A.  Kelly  v.  Browne,  12 
L.  R.,  Ir.  348— Bx.  D.    Affirmed  in  C.  A. 

On  Order  for  Taxation  of  Bill  of  Costs.]— Sec 
Solicitor  (Bill  of  Costs). 

What  can  be  seised— Against  Partnership.] — 
A  sheriff  cannot  sell  a  partner's  interest  in  the 
goodwill  or  book  debts  or  anything  else  which  he 
cannot  seize.  Helnwre  v.  Smith,  35  Ch.  D.  436  ; 
56  L.  T.  535  ;  36  W.  R.  8— C.  A. 

Pawnbroker's   Business  —  Unredeemed 

Pledges  —  Property  in  Articles  Pawned.] — A 
receiver  was  appointed  in  an  action  in  the 
Queen's  Bench  Division,  to  receive  the  profits 
and  other  moneys  receivable  from  a  pawn- 
broker's business  carried  on  by  the  defendant. 
Subsequently  to  the  appointment  of  the  receiver, 
but  before  he  perfected  his  security,  a  writ  of 
fi.  fa.  was  issued  to  the  sheriff  to  recover  a  sum 
of  money  ordered  to  be  paid  by  the  defendant  in 
an  action  in  the  Chancery  Division,  in  pursuance 
whereof  the  sheriff  took  possession  of  certain 
goods  and  chattels  in  the  possession  of  the  defen- 
dant, including  various  articles  pawned  with  her 
and  not  yet  redeemed.  The  receiver  perfected 
his  security,  and  claimed  the  redeemable  pledges 
in  the  defendant's  house  : — Held,  that  the  defen- 
dant, as  pawnbroker,  had  a  qualified  property  in 
the  articles  pawned  with  her  and  not  yet 
redeemed,  which  was  not  intercepted  by  the 
appointment  of  a  receiver  ;  and  that  therefore 
the  sheriff  was  entitled  to  hold  such  articles  on 
behalf  of  the  execution  creditor,  and  to  receive 
money  paid  to  redeem  the  same.  RoUoson,  In 
re,  Rolloson  v.  RoUoson,  34  Ch.  D.  495;  56 
L.  J.,  Ch.  768 ;  56  L.  T.  303 ;  35  W.  R.  607— 
North,  J. 

Sale  of  Interest  in  Licensed  Premises- 
Assignment  of  Licence.] — Under  a  writ  of  fi.  fa. 
against  G.,  certain  chattels  and  his  interest  in 
licensed  premises  were  seized,  advertised  for  sale, 
and  sold  on  the  31st  January,  1885,  by  the  sheriff.  - 
No  reference  to  the  licence  was  made  either  in 
the  advertisements,  conditions  of  sale,  or  deed  of 
assignment,  which  was  dated  the  10th  February, 
1885,  except  that  in  the  latter  the  premises  were 
described  as  "  licensed,"  as  occupied  by  G.  as  a 
licensed  publican,  and  the  deed  did  not  purport 
to  assign  the  licence.  The  sheriff  was  not  pos- 
sessed of  the  licence,  but  it  was  subsequently 
indorsed  and  delivered  by  G.  to  the  purchaser. 
On  the  4th  April,  1885,  G.  was  adjudicated  a 
bankrupt.  The  purchaser,  however,  obtained  an 
ad  interim  transfer  of  the  licence  on  the  14th 
April,  and  an  absolute  transfer  at  the  October 
Sessions.  In  August  the  hearing  of  a  charge  and 
discharge,  raising  a  question  as  to  the  property 
in  the  licence,  was  adjourned  by  consent  to 
November,  on  the  terms  that  the  position  of  the 
parties  should  be  considered  at  the  hearing  as  if 
unaltered  : — Held,  that  the  licence  did  not  pass 
under  the  sheriffs  assignment ;  that  the  subse- 
quent indorsement,  delivery,  and  transfer  of  it 
by  G.  to  the  purchaser  were  void  as  against  the 
assignees  in  bankruptcy  of  G..  and  that  the 
licence  formed  part  of  the  estate  and  effects  of 
G.  in  the  bankruptcy  matter  ;  but  having  regard 
to  the  proceedings  at  the  licensing  sessions,  the 
court  declined,  for  the  time  being,  to  make  any 


767 


EXECUTION. 


768 


order  for  the  transfer  of  the  licence  to  the 
assignee  in  bankruptcy,  or  to  award  damages 
Against  the  purchaser  for  withholding  the  licence. 
Gamer,  In  re,  17  L.  R.,  Ir.  1— Bk. 

Sale  of  Goods  by  Private  Contract— Appli- 
cation Sz  parte.]— Under  s.  145  of  the  Bank- 
ruptcy Act,  1883,  the  court  has  a  discretion  to 
order  goods  taken  in  execution  by  the  sheriff  to 
be  Bold  by  private  contract  instead  of  by  public 
auction,  notwithstanding  that  the  application 
for  leave  to  sell  by  private  contract  is  made  by 
the  execution  creditor  ex  parte,  and  in  the  absence 
of  all  the  other  creditors  of  the  execution  debtor. 
Hunt  v.  Fensham,  12  Q.  B.  D.  162  ;  32  W.  R.  316 
— D. 


3.  Elegit. 

Beisure  but  not  Delivery  of  the  Goods.] — By 
the  Bankruptcy  Act,  1883,  s.  146,  "the  sheriff 
shall  not  under  a  writ  of  digit  deliver  the  goods 
of  a  debtor,  nor  shall  a  writ  of  elegit  extend  to 
goods,"  and  by  s.  169,  which  repeals,  amongst 
other  enactments,  so  much  of  13  Edw.  1,  c.  18, 
as  relates  to  the  chattels  of  the  debtor,  save  only 
his  oxen  and  beasts  of  the  plough,  it  is  enacted 
that  "  the  repeal  effected  by  this  act  shall  not 
affect  anything  done  before  the  commencement 
of  this  act  under  any  enactment  repealed  by  this 
act ;  nor  any  right  or  privilege  acquired  or  duty 
imposed,  or  liability  or  disqualification  incurred 
under  any  enactment  so  repealed."  Some  days 
before  the  1st  of  January,  1884,  when  the  Bank- 
ruptcy Act,  1883,  came  into  operation,  the  sheriff 
entered  into  possession  and  seized  goods  of  the 
defendant,  under  a  writ  of  elegit  issued  under 
statute  13  Edw.  1,  c.  18,  at  the  suit  of  the  plain- 
tiff, a  judgment  creditor  of  the  defendant,  but 
no  delivery  of  such  goods  had  been  made  to  the 
plaintiff  before  the  1st  of  January,  1884  : — Held, 
that  the  Bankruptcy  Act,  1883,  had  not  deprived 
the  plaintiff  of  nis  right  to  the  delivery  of  such 
foods.  Hough  v.  Windus,  12  Q.  B.  D.  224  ;  53 
1.  J.,  Q.  B.  165 ;  50  L.  T.  312  ;  32  W.  R.  452  ; 
1  M.  B.  R.  1 — C.  A.    See  also  ante,  coL  154. 

Extends  to  Leaseholds.]  —  Notwithstanding 
the  provisions  of  s.  146  of  the  Bankruptcy  Act, 
1883,  a  writ  of  elegit  still  extends  to  leaseholds. 
Richardson  v.  Webb,  1  M.  B.  B.  40— D. 

See  also  Baxkbuptcy,  XT.,  1. 


4.  Sequestration. 

Wilful  Disobedience  of  Corporation  to  Order 
—How  Made  and  on  what  Materials.]— The 
court  had  granted  an  injunction  restraining  the 
defendants  from  polluting  with  sewage  a  pool 
belonging  to  the  plaintiff,  but  suspended  the 
order  for  three  months  to  allow  them  to  comply 
with  it.  They  had  moved  the  court  for  a  further 
extension  of  time,  but  had  been  refused.  As 
they  had  taken  no  steps  to  obey  the  order,  the 
plaintiff  soon  after  the  expiration  of  the  three 
months  served  them  with  notice  of  motion  under 
Ord.  XLII.  r.  31,  for  leave  to  issue  sequestra- 
tion against  the  property  of  the  corporation. 
Before,  however,  this  notice  was  served  they 
remedied  the  nuisance,  so  the  motion  now  came 
on  merely  as  a  question  of  costs.  The  defendants 
submitted    the  following  technical   objections 


under  the  Rules  of  the  Supreme  Court,  1883: 

(1)  No  memorandum  had  been  indorsed  upon 
the  copy  of  the  judgment  served  on  them,  as 
required  by  Ord.  XL  I.  r.  5.      (2)  No  copies  of 
the    affidavits  intended  to  be  used  had  been 
served  with  the  notice  of  motion,  as  required  by 
Ord-  LIL  r.  4.      (3)   There  was  no  case  for 
sequestration  at  all,  but  if  there  were  the  plaintiff 
was  entitled  to,  and  ought  to  have  issued  his 
writ  under  Ord.  XLII1.  r.  6,  without  moving 
for  leave.    (4)  Application  for  leave,  if  neces- 
sary, ought  to  have  been  by  summons  in  cham- 
bers, in  accordance  with  Snow  v.  Bolton  (17  Ch. 
D.  434)  :— Held,  that  the  defendants  had  been 
guilty  of  wilful  disobedience  to  the  order  of  the 
court ;  and  (1)  that  Ord.  XLI.  r.  5,  had  no  applica- 
tion to  a  prohibitive  order  like  the  present  one ; 

(2)  that  copies  of  affidavits  need  only  be  serod 
with  the  notice  of  motion  in  cases  where  the 
liberty  of  the  subject  was  involved,  as  in  attach- 
ment ;  (3)  that  Ord.  XLIII.  r.  6,  applied  to 
something  to  be  done  in  a  limited  time,  and  not 
to  something  which  had  been  ordered  (as  in  the 
present  case)  not  to  be  done  at  all ;  and  (4) 
that,  under  the  circumstances  of  the  case,  the 
plaintiff  was  right  to  move  the  court  in  the  first 
instance  instead  of  proceeding  by  summons  in 
chambers.  Selous  v.  Croydon  Rural  SaniUrji 
Authority,  53  L.  T.  209  -Chitty,  J. 

Personal  Service  of  Order.] — A  husband  ob- 
tained a  decree  for  restitution  of  conjugal  rights, 
which  was  not  complied  with,  and  the  court 
afterwards  made  an  order  giving  the  petitioner 
the  custody  of  the  only  child  of  the  marriage. 
A  copy  of  the  order  for  custody  was  left  at  the 
house  where  the  respondent  was  residing,  hut 
the  respondent  had  not  given  up  the  child  to  the 
petitioner.  The  court,  being  satisfied  that  toe 
order  as  to  the  custody  of  the  child  had  come  to 
the  knowledge  of  the  respondent,  ordered  a  writ 
of  sequestration  to  issue  against  her  for  non- 
compliance with  the  order,  without  a  previous 
writ  of  attachment,  and  ordered  the  respondent 
to  pay  the  costs  of  the  motion.  Allen  v.  Allen, 
10  P.  D.  187  ;  54  L.  J.,  P.  77 ;  33  W.  B.  826- 
Hannen,  P. 

Form  of  Writ]— On  the  application  of  i 


husband,  who  had  obtained  a  decree  nisi  for 
divorce  against  his  wife,  an  order  was  made  that 
the  wife  should  deliver  up  into  the  custody  of 
the  husband  the  children  of  the  marriage.  The 
wife  knew  of  the  order,  but  evaded  service  of  it* 
and  disobeyed  it  On  the  application  of  the 
husband  an  order  was  then  made  declaring  the 
wife  contumacious  and  in  contempt,  and  direct- 
ing that  a  writ  of  sequestration  should  isatt 
against  the  estate  and  effects  of  the  wife:— 
Held,  first,  that  as  the  wife  knew  of  the  order 
for  delivery  up  of  the  children,  and  evaded  ser- 
vice of  it,  personal  service  of  the  order  upon  ber 
was  not  necessary  to  give  the  court  jurisdiction 
to  issue  the  writ  of  sequestration ;  secondly,  that 
the  general  form  of  the  writ  of  sequestration 
against  "the  estate  and  effects"  of  the  wife, 
without  any  express  limitation  therein  to  sepa- 
rate property  of  the  wife  not  subject  to  a  re- 
straint on  anticipation,  was  right,  bat  that  the 
writ  would  only  operate  on  her  separate  property 
which  was  not  so  subject.  Hyde  v.  Hyde,  13 
P.  D.  166  ;  67  L.  J.f  P.  89 ;  69  L.  T.  6»;  *6 
W.  R.  708— C.  A. 


769 


EXECUTION. 


770 


ifanut  Benefice  of  Debtor.]— &*  Ecclesias- 
tical Law,  VIII. 

Whti  Receiver  appointed  in  lion  ot]— See 
Whiteley,  In  re,  infra. 


6.  Equitable  Execution — Receives. 

Service  of  Summons  ont  of  Jurisdiction.] — 
The  plaintiff  having  obtained  judgment  against 
the  defendant,  a  foreigner  resident  out  of  the 
jnrisdiction,  a  summons  was  issued  by  leave  of  a 
judge  at  chambers,  calling  on  the  defendant  to 
show  cause  why  a  receiver  should  not  be  ap- 
pointed On  an  application  for  leave  to  serve 
this  gammons  on  the  defendant  out  of  the  juris- 
diction:— Held,  that  there  was  no  jurisdiction 
to  gnnt  such  leave.  Weldon  v.  Gounod,  15  Q. 
B.  D.  622— D. 

IfUtnoo  of  Property.] — Where  a  plaintiff 
obtained  judgment  and  issued  execution,  and 
the  sheriff  returned  nulla  bona,  the  court  will 
not  appoint  a  receiver  on  the  ground  that  since 
the  return,  the  defendant  has  been  found  to  be 
possessed  of  a  patent  the  value  of  which  did 
not  appear  from  the  evidence  before  the  court. 
Smith  v.  Carter,  52  J.  P.  616— D. 

lira  of  Order — Security.] — Where  a  judgment 
creditor,  in  an  action  for  equitable  execution, 
obtained  the  appointment  of  a  receiver  for  the 
impose  of  creating  a  charge  upon  the  debtor's 
property,  subject  to  prior  incumbrances,  but  not 
mr  the  purpose  of  entering  into  possession  or 
receiving  the  rents  and  profits,  the  receiver  was 
not  required  to  give  security,  the  plaintiff  and 
the  receiver  undertaking  not  to  act  without  the 
leave  of  the  court.  Uewett  v.  Murray,  54  L.  J., 
Ol  572 ;  52  L.  T.  380— V.-C.  B.  See  also 
MeGtrry  v.  White,  infra. 


Trustee  out  of  the  Jurisdiction.]— 
An  order  had  been  made  for  the  payment  of 
money  into  court  by  the  defendant  in  an  action 
for  breach  of  trust.  The  defendant  was  out  of 
the  jurisdiction  of  the  court  at  the  time,  and 
there  was  slight  prospect  of  his  returning  within 
it  The  plaintiff  accordingly  moved  to  enforce 
the  order  by  the  appointment  of  a  receiver  of 
the  interest  payable  to  the  defendant  on  some 
•hares  owned  by  him  in  a  certain  syndicate : — 
Held,  that  the  court  would  enforce  its  order  for 
the  payment  of  money  on  a  defendant  out  of  its 
jurisdiction  by  the  appointment  of  a  receiver  of 
property  belonging  to  bim  within  its  jurisdiction. 
Oeiey,  In  re,  Coney  v.  Bennett,  29  Ch.  D.  993  ; 
M  L  Jn  Ch.  1130 ;  52  L.  T.  961 ;  33  W.  R.  701— 
C*tty,J. 

■anted  Woman—- Separate  Estate.]— In  an 
Ktaon  against  a  married  woman  alleged  to  be 
jwswsed  of  separate  estate,  no  defence  was  de- 
livered, and  the  master  found  that  she  was 
entitled  to  separate  property  vested  in  trustees 
*ad  subject  to  certain  charges.  The  plaintiff 
*is  appointed  receiver  without  security  of  the 
wsidae  of  the  income  of  the  separate  estate,  after 
payment  of  the  prior  charges,  the  plaintiff  under- 
taking to  act  without  remuneration.  AP  Garry 
▼.  White,  16  L.  R.,  It.  322— Q.  B.  D. 

K.,  a  married  woman,  by  her  next  friend, 
applied  to  tax  the  bill  of  costs  of  her  solicitor, 


incurred  in  a  suit  relating  to  her  separate  estate. 
After  the  taxing-master's  certificate  had  been 
filed,  an  order  was  made  on  the  application  of 
the  solicitor,  directing  an  inquiry  of  what  M.'s 
separate  estate  consisted  at  the  date  of  the  filing 
of  the  certificate  capable  of  being  reached  by 
the  judgment  and  execution  of  the  court,  and 
appointing  a  person  to  receive  it  until  the 
amount  found  due  on  taxation  was  paid : — Held, 
that  this  order  was  proper,  and  that  it  was  not 
necessary  to  take  separate  proceedings  by  action 
to  enforce  the  demand  against  the  separate 
estate.  Peace  and  Waller,  In  re,  24  Ch.  D.  405  ; 
49  L.  T.  637  ;  31  W.  R.  899— C.  A. 

Garnishee   Proceedings    not  Applieable.]  — 

Since  the  Judicature  Acts  the  court  can  grant 
equitable  execution  by  the  appointment  of  a  re- 
ceiver at  the  instance  of  a  judgment  creditor 
against  debts  and  sums  of  money  payable  to  the 
judgment  debtor  to  which  garnishee  proceedings 
are  not  applicable.  Weethead  v.  Riley,  25  Ch.  D. 
413  ;  53  L.  J.,  Ch.  1153  ;  49  L.  T.  776  ;  32  W.  R. 
27a— Chitty,  J. 

Receiver  instead  of  Sequestration.] — An  order 
was  made  against  the  defendants  in  an  action, 
who  were  defaulting  trustees,  for  the  payment  of 
money  into  court.  The  defendants  having  failed 
to  comply  with  such  order,  an  application  waa 
made  by  the  plaintiffs  that  a  writ  of  attachment 
might  issue  against  them.  At  the  defendants' 
instance,  however,  the  court  made  an  order 
allowing  payment  by  weekly  instalments.  L., 
one  of  the  defendants,  had  made  an  affidavit  on 
that  occasion  stating  that  all  the  property  he 
possessed  was  the  furniture  in  his  house.  It 
subsequently  transpired  that  L.  had  executed 
bills  of  sale  affecting  the  furniture ;  but  that  the 

Slaintiffs,  in  other  proceedings,  had  successfully 
isputed  the  validity  of  such  bills  of  sale.  An 
application  was  accordingly  made  on  behalf  of 
the  plaintiffs  for  the  appointment  of  a  receiver 
of  the  furniture  by  way  of  equitable  execution. 
For  the  defendant  L.  it  was  contended  that  the 
legal  and  proper  remedy  of  the  plaintiffs  was  by 
sequestration,  and  that  the  court  had  no  juris- 
diction to  appoint  a  receiver  :  —  Held,  that, 
although  under  r.  4  of  Ord.  XLIf.  of  the  Rules  of 
the  Supreme  Court,  1 883,  sequestration  was  the  ap- 
propriate remedy,  yet  under  s.  25,  sub-s.  8  of  the 
Judicature  Act,  1873,  the  court  had  jurisdiction 
to  appoint  a  receiver  if  it  appeared  just  or  con- 
venient so  to  do  ;  and  that,  in  the  present  case, 
it  was  just  and  convenient  to  appoint  a  receiver,, 
and  that  an  order  must  be  made  accordingly. 
Whiteley,  In  re,  Whiteley  v.  Learovd,  66  L.  TV 
846— Kay,  J. 

Judgment  Debtor  entitled  to  Legacy.] — A 

judgment  debt  being  unsatisfied  for  want  of 
goods  of  the  defendant,  who  was  entitled,  ex- 
pectant on  the  death  of  a  tenant  for  life,  to  a 
legacy  of  much  larger  amount  than  the  debt : — 
Held,  that  a  receiver  should  be  appointed  by 
way  of  equitable  execution  to  receive  a  suffi- 
cient portion  of  the  legacy  when  it  should  become 
receivable.  Macnicoll  v.  Parnell,  36  W.  R. 
773— D. 

Effect  of— Ho  Elegit  or  Registration— Subse- 
quent Purchaser.]  —  A  judgment  debtor  had 
lands  in  Surrey  subject  to  an  equitable  mortgage, 
and  his  judgment  creditor  obtained  an  order  for 

C  C 


} 


771 


EXECUTION. 


772 


a  receiver  of  these  lands.  This  order  was  not 
registered.  After  the  appointment  of  the  receiver 
the  debtor  sold  the  lands  to  a  purchaser  for  value 
without  notice  : — Held,  first,  that  under  the 
circumstances  of  the  case,  it  was  just  and  con- 
venient for  the  court  to  appoint  a  receiver  within 
the  Judicature  Act,  1878,  s.  25,  sub-s.  8 ;  secondly, 
that  as  the  appointment  of  the  receiver  was 
equivalent  to  actual  delivery  of  the  land  in 
execution,  registration  of  the  order  appointing 
the  receiver  was,  under  27  &  28  Vict,  c  112, 
unnecessary,  registration  under  that  Act  being 
only  necessary  when  an  order  for  sale  is  required, 
and  that  the  purchaser  was  affected  by  the  order. 
Pope,  In  re,  17  Q.  B.  D.  743 ;  55  L.  J.,  Q.  B,  522 ; 
56  L.  T.  369  ;  34  W.  R.  693— C.  A. 

What  he  can  Receive— Fund  in  Discretion  of 
Trustees.] — An  order  was  made,  in  an  action  in 
a  county  court,  appointing  a  receiver  to  receive 
the  interest  of  a  sum  of  money  in  the  hands  of 
trustees,  and  ordering  the  trustees  to  pay  a 
specific  amount  oat  of  the  interest  to  the  receiver 
half-yearly  until  the  judgment  in  the  action 
should  be  satisfied.  The  trustees  were  trustees 
of  a  will,  by  which  they  were  directed  to  set 
apart  and  invest  the  sum  in  question,  and  were 
authorised,  at  their  absolute  discretion,  from 
time  to  time,  and  at  such  time  or  times  as  they 
should  think  proper,  to  pay  or  apply  the  whole 
or  any  part  of  the  income  to  or  for  the  benefit 
of  the  judgment  debtor  in  such  a  manner  in  all 
respects  as  they  should  think  proper.  The 
trustees  applied  for  a  prohibition  : — Held,  that, 
as  it  depended  on  the  discretion  of  the  trustees 
whether  anything  should  be  paid  to  the  judg- 
ment debtor,  the  receiver  could  not  be  entitled 
to  receive  the  interest  in  their  hands,  and  that 
an  order  for  payment  could  not  be  made  against 
the  trustees,  who  were  strangers  to  the  action, 
and  therefore  the  county  court  judge  had  ex- 
ceeded his  jurisdiction,  and  the  proper  remedy 
was  by  prohibition.  Reg.  v.  Lincolnshire  County 
Court  Judge,  20  Q.  B.  D.  167 ;  57  L.  J.,  Q.  B. 
136  ;  58  L.  T.  54  ;  36  W.  R.  174— D. 


Indian  Officer's  Pension.] — The  pension  of 


an  officer  of  her  Majesty's  forces,  being  by  s.  141 
of  the  Army  Act,  1881,  made  inalienable  by  the 
voluntary  act  of  the  person  entitled  to  it, 
cannot  be  taken  in  execution,  even  though  such 
pension  be  given  solely  in  respect  of  past  services, 
and  the  officer  cannot  again  be  called  upon  to 
serve : — Held,  that  an  order  appointing  a  receiver 
of  such  pension  was  bad.  Birch  v.  Birch  (8 
P.  D.  163)  approved  ;  Bent  v.  Bent  (1  L.  R.,  P. 
866)  distinguished.  Lucas  v.  Harris,  18  Q.  B.  D. 
127  ;  56  L.  J.,  Q.  B.  15  ;  55  L.  T.  658  ;  35  W.  R. 
112 ;  51  J.  P.  261—0.  A. 

Improper  Conduct  of  Receiver — Application 
to  what  Court.] — A  receiver  was  appointed  in  an 
action  in  the  Queen's  Bench  Division  under  an 
order  directing  him  to  collect  the  rents  of  certain 
specified  property  (including  property  in  which 
6.  was  in  possession  as  mortgagee),  such  order  to 
be  without  prejudice  to  the  rights  of  any  incum- 
brancer who  might  be  in  or  enter  into  possession. 
The  receiver  gave  notice  to  the  tenants  of  the 
mortgaged  property  to  pay  the  rents  to  him,  who 
informed  him  that  they  had  already  been  served 
with  a  notice  from  S.  The  receiver  not  with- 
drawing the  notice,  S.  brought  an  action  in  the 
Chancery  Division,  asking  for  an  injunction  to 


restrain  the  receiver  from  receiving  the  rents  :— 
Held,  that  although  the  receiver's  conduct  wit 
improper,  and  in  violation  of  the  rights  of  8.,  8. 
was  not  justified  in  instituting  a  fresh  action  in 
the  Chancery  Diviaon  ;  and  that,  whatever  might 
have  been  the  course  previous  to  the  Judicature 
Act,  such  a  proceeding  since  that  act  was  irre- 
gular, the  proper  course  being  to  apply  in  the 
action  and  to  the  court  in  and  by  which  the 
receiver  was  appointed.  Searle  v.  Cheat,  25 
Ch.  D.  723  ;  53  L.  J.,  Ch.  506  ;  32  W.  B.  397— 
C.A. 

6.  Charging  Order— Stocks  and  Shabes. 


Jurisdiction — Order  charging  Cash— Stop 
Order.] — A  charging  order  maybe  made  by  a 
judge  of  the  Queen's  Bench  Division  upon  cash 
standing  to  the  credit  of  the  debtor  in  the 
Chancery  Division  in  the  name  of  the  Paymaster* 
General.  Such  an  order  may  be  made  ex  parte, 
and  in  order  to  give  effect  to  it  it  is  not  necessarj 
to  obtain  a  stop  order  or  to  obtain  the  appoint- 
ment of  a  receiver ;  but  notice  given  to  the 
Paymaster-General  will  be  sufficient  to  secure 
priority.  Brereton  v.  Edward*,  21  Q.  B.  D.  488 ; 
60  L.  T.  6  ;  37  W.  R.  47— C.  A.  Affirming  on 
other  grounds  52  J.  P.  647— D. 

Date  from  which  commencing.]— A  charging 
order  nisi,  when  it  is  afterwards  made  absolute, 
takes  effect  from  the  date  of  the  order  nisi.   Ti> 

Writ  of  Execution  not  issued.]— A  charging 
order  cannot  be  made  unless  there  be  an  existing 
writ  of  execution  issued  and  leviable.  When 
therefore  a  writ  of  fi.  fa.  had  been  issued,  the 
debt  partly  levied,  and  the  writ  returned,  the 
court  declined  to  grant  an  order,  charging 
the  defendant's  interest  in  money,  in  court,  until 
the  plaintiff  issued  a  new  writ  of  fi.  fa.  Do**- 
hoe  v.  MuUarkcy,  18  L.  R.,  Ir.  425— Ex.  D. 

Hot  an  Execution  against  Goods  of  Debtor.  J— 
An  order  nisi  charging  shares  under  1  &  2  Vict 
c.  110.  s.  14,  is  not  an  execution  against  the 
goods  of  a  debtor  within  s.  45  of  46  &  47  Vict 
c.  52  of  the  Bankruptcy  Act,  1883.  ffutckvun, 
Ex  parte,  or  Plowden,  Ex  parte,  Hutckkuv** 
In  re,  16  Q.  B.  D.  515  ;  55  L.  J.,  Q.  B.  582 ;  M 
L.  T.  302  ;  34  W.  R.  475  ;  3  M.  B.  B.  19— D. 

Service  of  Hotioe  on  Legatee — Effect  of]— 

Service  of  a  notice  under  Ord.  XL VI.  r.  4,  as  to 
stock  or  shares  comprised  in  a  legacy  by  the 
legatee  or  his  solicitor,  is  not  an  acceptance  of 
the  legacy  so  as  to  bring  the  legatee  under  the 
liabilities  attaching  to  the  stock  or  shares,  or 
estop  him  from  subsequently  disclaiming  the 
legacy.  Hobb*  v.  Wayet,  36  Ch.  D.  256 ;  W 
L.  J.,  Ch.  819  ;  57  L.  T.  225  ;  36  W.  B.  73- 
Kekewich,  J. 

Order  for  Sale  of  Shares.] — The  plaintiff, 
having  recovered  judgment  in  an  action,  obtained 
an  order  absolute  under  Ord.  XLVL,  charging 
shares  of  the  defendant  in  a  company  with  the 
payment  of  the  judgment  debt  and  interest,  and 
then  applied  to  the  court  for  an  order  for  sale  od 
the  shares  : — Held,  that  s.  24  of  the  Judicature 
Act,  1873,  did  not  give  the  court  jurisdiction  tt 
order  the  sale.  Leg  got  t  v.  Western,  12  Q.  B.  D 
287  ;  53  L.  J.,  Q.  B.  316  ;  32  W.  R.  460— D. 


773 


EXECUTION. 


774 


Writ  to  Enforce— Service  out  of  Jurisdiction.] 

—This  was  a  motion  for  leave  to  issue  for  service 
oat  of  the  jurisdiction  a  writ  in  an  action  seek- 
ing to  enforce  a  charging  order  obtained  by  the 
plaintiff,  a  judgment  creditor,  upon  certain 
shares  belonging  to  the  defendant,  the  judgment 
debtor.  The  Judgment  Act  (1  &  2  Vict.  c.  110), 
a  14,  which  by  virtue  of  Ord.  XLVI.  r.  1,  re- 
gulates the  effect  of  a  charging  order,  provides 
that  "such  order  shall  entitle  the  judgment 
creditor  to  all  such  remedies  as  he  would  have 
been  entitled  to  if  such  charge  had  been  made 
in  his  favour  by  the  judgment  debtor."  Ord.  XL. 
r.  1,  provides  that  service  out  of  the  jurisdiction 
of  a  writ  of  summons,  or  notice  of  a  writ  of 
summons,  may  be  allowed  by  the  court  or  a 
judge  whenever  (c)  "  the  action  is  founded  on 
any  breach,  or  alleged  breach,  within  the  juris- 
diction, of  any  contract  wherever  made,  which, 
according  to  the  terms  thereof,  ought  to  be  per- 
formed within  the  jurisdiction": — Held,  that, 
assuming  that  the  case  could  be  treated  as  one 
of  contract  at  all,  it  would  only  be  a  contract 
that  the  shares  should  be  charged,  and  of  such  a 
contract  there  had  not  been  any  breach  within 
the  jurisdiction.  Moritz  v.  Stephan,  58  L.  T. 
$50 ;  36  W.  B.  779— North,  J. 


tad  in  Court— Priority  over  Mortgage.]— 

A  judgment  creditor  cannot,  by  obtaining  a 
charging  order  on  a  fund  in  court,  acquire 
priority  over  a  previous  mortgagee  of  the  fund 
who  has  obtained  no  order.  Bell,  In  re,  Carter 
v.  Stadden,  54  L.  T.  370  ;  34  W.  R.  363— Kay,  J. 


7.     DlSCOVEBY  IN  AID  OF. 

Garnishee  Order  —  Oral  Examination  of 
Garnishee.] — A  garnishee  order  is  an  order  for 
the  payment  of  money,  and  a  judgment  creditor, 
being  a  person  entitled  to  enforce  it,  may  apply 
to  the  court  for  an  order  for  the  oral  examina- 
tion of  the  garnishee  under  Ord.  XL  1 1,  r.  32. 
Cowan  ▼.  CarliU,  52  L.  T.  431 ;  33  W.  R.  583 
-D. 


Examination  of  Third  Parties.] — There  is  no 
power  under  Ord.  XLII.  r.  32,  when  a  judgment 
or  order  has  been  obtained  for  the  recovery  or 
payment  of  money,  to  make  an  order  for  the 
examination  of  any  person  other  than  the  debtor 
liable  under  such  judgment  or  order,  or  in  the 
case  of  a  corporation,  other  than  an  officer  of  the 
defendant  corporation.  IrweU  v.  Eden,  18  Q.  B. 
D.  588  ;  56  L.  J.,  Q.  B.  446 ;  56  L.  T.  620  ;  35 
W.  R.  511— C.  A- 

On  the  application  of  a  husband,  who  had 
obtained  a  decree  nisi  for  divorce  against  his 
wife,  an  order  was  made  that  the  wife  should 
deliver  np  into  the  custody  of  the  husband  the 
children  of  the  marriage.  The  wife  knew  of  the 
older,  bat  evaded  service  of  it,  and  disobeyed  it. 
On  the  application  of  the  husband  an  order  was 
then  made  declaring  the  wife  contumacious  and 
in  contempt,  and  directing  that  her  mother, 
stater,  and  brother-in-law  should  attend  the  court 
to  be  examined  as  to  her  whereabouts  : — Held, 
that  the  court  had  no  jurisdiction  to  order  the 
attendance  of  third  parties  for  examination. 
fffie  v.  Hyde,  13  P.  D.  166  ;  57  L.  J.,  P.  89 ; 
tt  L.  T.  629 ;  36  W.  R.  708— C.  A. 


8.  Rights  op  Execution  Creditor. 

Debtor's  Interest.]— A  judgment  creditor  can 
only  by  execution  take  such  property  of  his 
debtor  as  the  debtor  could  deal  with  properly 
and  without  violation  of  'the  rights  of  other 
persons.  Badeley  v.  Consolidated  Bank,  38  Ch. 
D.  238  ;  57  L.  J.,  Ch.  468  ;  59  L.  T.  419  ;  36  W. 
R.  745— C.  A. 


Interpleader — Jns  tertii.]— Upon  the  trial  of 
an  issue  under  a  sheriff's  interpleader  between  a 
claimant  and  the  execution  creditor,  in  the 
absence  of  any  evidence  of  title  on  the  part  of 
the  claimant,  or  if  the  claimant's  interest  be 
shown  to  have  passed  to  a  third  person,  the  exe- 
cution creditor  is  entitled  to  succeed.  Richards 
v.  Jenkins,  18  Q.  B.  D.  451  ;  66  L.  J.,  Q.  B.  293  ; 
56  L.  T.  591 ;  35  W.  R.  335— C.  A. 

Possession  by  Sheriff] — The  possession  of 
goods  by  the  sheriff  under  an  execution  is  not  the 
possession  of  the  execution  creditor.    lb. 

•  Receiver  appointed  in  Partnership  Aotion — 
Subsequent  Judgment  against  Firm.] — Where  a 
plaintiff  had  obtained  an  order  for  dissolution  of 
partnership  and  accounts,  and  a  receiver  was 
appointed,  a  creditor,  who  had  obtained  a  judg- 
ment in  the  Queen's  Bench  Division  of  the  High 
Court  of  Justice  for  482.  13*.  $d.  and  82.  costs, 
took  out  a  summons  in  chambers  for  leave  to 
issue  execution  against  the  assets  of  the  firm  in 
the  hands  of  the  receiver,  and  this  application 
was  refused.  On  the  motion  to  discharge  the 
order :  the  Court  refused  to  decide  that  the 
applicant  would  be  entitled  to  any  preferential 
payments  in  the  administration  of  the  partner- 
ship assets,  but  gave  him  a  charge  for  his  judg- 
ment debt,  with  4  per  cent,  interest  and  costs, 
and  costs  of  the  motion,  on  all  the  moneys  then 
in  the  hands  of  the  receiver,  or  to  come  into  his 
hands,  he  undertaking  to  deal  with  it  according 
to  the  order  of  the  court,  the  court  intending  to 
preserve  to  the  applicant  such  legal  rights  as  he 
would  have  had  in  case  the  sheriff  had  seized 
under  an  execution  and  sold  on  that  day. 
Keumey  v.  Attrill,  34  Ch.  D.  345 ;  66  L.  J.,  Ch. 
448  ;  65  L.  T.  805  ;  33  W.  R.  191— Kay,  J. 

See  also  cases  sub  tit.,  Sheriff. 


EXECUTOR  AND  ADMINIS- 
TRATOR. 

I.  Rights,  Powers,  and  Duties,  775. 

1.  Beating  with  Estate,  775. 

2.  Power  to  Pledge  or  Mortgage  Estate,  780. 

3.  Allowances  and  Payments  to,  782. 

4.  Right  of  Retainer,  783. 

5.  Right  of  Set-off,  786. 

II.  Liabilities,  786. 

1.  In  General,  786. 

2.  Bevastavit,  788. 

O  c  2 


775 


EXECUTOR   AND    ADMINISTRATOR. 


776 


IIL  Assets,  790. 

1.  What  are,  790. 

2.  Admission  of  Assets,  790. 

3.  Distribution  of  Assets,  791. 

a.  Interest  on  Legacies,  791. 

b.  In  other  Cases,  792. 

IV.  Executor  de  Son  Tobt,  796. 
V.  Proceedings  By  and  Against,  796. 

VI.  Administration  Actions,  800. 

1.  Order  when  Made — Jurisdiction,  800. 

2.  Parties,  803. 

3.  Practice,  804. 

4.  Costs,  808. 

a.  When  Estate  Insufficient — Priority, 

808. 

b.  In  other  Gases,  811. 


I.    BIGHTS,  P0WEES  AJTD  DTTTTES. 

1.  DEALING  WITH  ESTATE. 

Duty  to  Convert  —  Wilful  Default J  —  The 
testator,  at  his  death,  had  cargoes  of  cotton 
which  he  had  purchased  on  speculation,  and  his 
executors,  in  the  exercise  of  due  care  and  discre- 
tion (though  at  one  time  they  might  have  sold 
the  whole  of  the  cotton  in  a  fluctuating  market, 
at  a  small  profit)  kept  it  until  it  fell  in  price, 
and  loss  to  the  assets  was  thereby  sustained  ; — 
Held,  that  the  executors  had  not  been  guilty  of 
wilful  default.  Blount  v.  O'Connor,  17  L.  R., 
Ir.  620— M.  R. 

The  will  contained  a  clause,  that  the  testator's 
trustees  should  be  at  liberty  to  Bell  all  his  ships, 
houses,  and  other  property,  and  invest  the  same 
as  they  should  think  most  desirable,  but  not  in 
British  Funds  ;  his  trustees  to  be  free  from  all 
liability,  in  investing  the  money  received  for  the 
sale  of  any  of  his  property.  The  testator  had 
railway  and  foreign  stock,  which  the  trustees 
did  not  sell,  and  which  afterwards  fell  in  value, 
causing  a  large  loss  to  the  assets  : — Held,  that 
they  were  not  guilty  of  wilful  default.    lb. 

Reasonable  Discretion.] — An  executor's 

discretion  is  not  that  of  an  absolute  owner  :  it  is 
limited  by  the  duty  of  bringing  the  assets  into 
a  proper  state  of  investment  within  a  reasonable 
time  ;  the  onus  is  upon  him  to  show  that  he  has 
acted  bona  fide  and  has  exercised  a  reasonable 
discretion.  Where  the  testator's  assets  were 
subject  to  trusts  in  favour  of  unborn  persons 
and  consisted  in  part  of  shares  with  unlimited 
liability,  and  the  executors  delayed  conversion 
after  the  same  was  demanded  by  those  bene- 
ficially interested  : — Held,  that  they  were  liable 
for  the  value  of  the  shares  ascertained  at  a 
reasonable  date  from  the  death  of  the  testator, 
which  in  this  case  was  fixed  at  six  months. 
Hiddingh  v.  De  Villwrs,  12  App.  Cas.  624 ;  56 
L.  J.,  P.  C.  107  ;  57  L.  T.  885— P.  C. 

It  is  not  the  duty  of  executors  to  turn  the 
whole  estate  into  money;  their  duty  is  to 
liquidate  it,  that  is  reduce  it  into  possession, 
cleared  of  debts  and  outgoings,  and  so  left  free 
for  enjoyment  by  the  heirs,  and  to  hold  any 
trust  fund  separate  from  their  own.  Bening- 
Jield  v.  Baxter  (12  App.  Cas.  167)  approved.    lb. 


vested  part  of  the  assets  in  the  purchase  of 
railway  stock  and  of  freehold  premises  in 
England,  and  on  the  security  of  a  mortgage  :— 
Held,  not  wilful  default,  but  acts  which  (if  not 
authorized  by  the  will)  would  render  them 
liable  to  account  for  the  money  so  invested, 
under  the  ordinary  decree  to  account  Blnrt 
v.  O'Connor,  supra* 
See  also  Tbust  and  Tbustbe. 

Wilful  Default— What  is.]— Wilful  default 
means  improper  neglect  to  receive  assets,  not 
the  misapplication  of  assets  once  received.  The 
latter  act  is  a  devastavit,  for  which  executors  are 
chargeable,  under  the  ordinary  decree  to  ac- 
count   lb. 

Division  of  Securities.]— Afterpayment 


Powers  of  Investment.]— The  executors  in- 


of  the  debts  and  legacies,  &c.,  the  trustees 
divided  the  securities  representing  the  residue, 
into  four  parts,  and  allocated  a  part  to  each  of 
the  four  persons  entitled  to  the  residue  with 
their  assent,  and  oat  of  the  two  parts  pur- 
chased residences  for  the  persons  entitled  to 
them,  at  their  request,  charging  the  sums  so 
invested  as  payments  on  account  of  their 
respective  shares : — Held,  that  the  executors 
were  not  guilty  of  wilful  default  or  breach  of 
trust,    lb. 

Power  to  postpone  Sale  of  Businefi— Pronto 
—  Tenant   for  Life   or   Bemaindermaa.]  —  A 

testator  devised  and  bequeathed  his  real  and 
personal  estate  upon  the  usual  trusts  for  sale 
and  conversion,  the  proceeds  to  be  invested  and 
to  be  held  upon  trust  for  his  wife  for  life,  and, 
after  her  death,  for  his  children.  The  will  con- 
tained the  usual  power  to  postpone  the  sale  and 
conversion  of  the  real  and  personal  estate,  and 
the  usual  direction  that  until  sale  and  con- 
version the  rents,  profits,  and  income  thereof 
should  be  paid  to  the  same  persons  and  applied 
in  the  same  manner  as  the  income  of  the 
trust  estate.  The  will  contained  no  reference 
whatever  to  the  business  of  the  testator,  which 
comprised  the  bulk  of  his  estate.  The  executors 
carried  on  the  business  for  nearly  two  year* 
with  a  view  to  its  sale  as  a  going  concern,  and 
the  question  arose  whether  the  profits  of  the 
business  during  that  period  were  to  be  treated 
as  capital  or  income : — Held,  that  the  executors 
had  power  to  carry  on  the  business  for  a 
reasonable  period  with  a  view  to  its  sale  as  a 
going  concern ;  and  that  as  the  testator  had 
expressly  directed  that  the  profits  of  his  personal 
estate  until  conversion  were  to  be  treated  as 
income,  the  general  rule  laid  down  in  Horns  v. 
Earl  of  Dartmouth  (7  Ves.  137)  did  not  apply, 
and  therefore  the  widow  was  entitled  to  the 
profits  of  the  business.  Brown  v.  OelUtk 
(2  L.  R.,  Ch.  751)  and  Kirkman  v.  But* 
(11  Beav.  279)  distinguished.  Chancellor,  Inre, 
Chancellor  v.  Brown,  26  Ch.  D.  42  ;  53  L  J., 
Ch.  443 ;  51  L.  T.  33 ;  32  W.  B.  465— C.  A. 

Direction  to  carry  on  Testator's  Business— 
Sight  to  Premises  and  Plant]— A  testator  after 
giving  legacies  and  annuities,  proceeded  to  say  .* 
"  My  executors  may  realize  such  part  of  my 
estate  as  they  think  right  and  in  their  judgment 
to  pay  the  aforenamed  legacies."  He  then 
directed  his  business  to  be  carried  on  till  his  son 
attained  the  age  of  thirty,  but  did  not  dispose  of 
the  profits,  nor  did  his  will  contain  any  further 
disposition  of  his  real  or  personal  estate,  except 


777 


EXECUTOR   AND    ADMINISTRATOR. 


778 


i  gift  of  a  particular  house.  The  testator  carried 
on  his  business  in  a  freehold  mill  which  was 
his  own  property  : — Held,  that  so  long  as  the 
testator's  business  was  continued  for  the  pur- 
poses and  under  the  directions  of  the  will,  the 
executors  were  entitled  to  the  free  use  and 
occupation  of  the  business  premises,  and  of  the 
fixed  plant  and  machinery  therein,  without 
paying  any  rent  for  the  same.  Cameron,  In  re, 
Mxe*  v.  Cameron,  26  Ch.  D.  19  ;  53  L.  J.,  Ch. 
1139 ;  50  L.  T.  339  ;  32  W.  R.  834—0.  A. 

Bat  held,  that  the  descended  real  estate  could 
not  be  affected  by  the  direction  to  carry  on  the 
testator's  business  any  further  or  otherwise  than 
sach  carrying  on  might  be  necessary  for  payment 
of  the  legacies  and  annuities  given  by  the  will, 
and  that,  so  soon  as  they  were  provided  for,  the 
direction  to  carry  on  the  business  became  in- 
operative, and  ceased  to  be  binding  either  on 
toe  heir-at-law  or  the  next  of  kin,  and  that 
any  surplus  profits  which  had  arisen  since  the 
testator  s  decease  after  providing  for  the  legacies 
and  annuities,  must  be  apportioned  between  the 
heir-at-law  and  the  next  of  kin  according  to  the 
rallies  of  the  real  and  personal  estate  employed 
in  the  business.    lb. 

Carrying  on  Trade— Goods  bought  by  Repre- 
sentative—Rights  of  Vendors.  ]— The  adminis- 
tratrix of  an  intestate,  a  dealer  in  builders' 
materials,  carried  on  the  intestate's  trade,  and 
bought  cement  for  the  purposes  of  the  trade. 
On  the  15th  of  April,  1886,  a  receiver  and 
manager  was  appointed  in  an  administration 
action  by  the  infant  child  of  the  intestate.  On 
the  22nd  of  April  the  vendors  recovered  judg- 
ment against  tne  administratrix  for  the  price  of 
the  cement,  but  judgment  was  not  signed  till  the 
18th  of  May,  on  which  day,  the  cement  remaining 
in  specie  was  sold  along  with  other  effects  under 
an  order  in  the  administration  action.  Execution 
was  never  issued  by  the  vendors  of  the  cement, 
hot  they  applied  in  the  administration  action 
to  have  the  proceeds  of  its  sale  applied  in  pay- 
ment of  their  debt.  The  court  refused  this 
fthef,  but  declared  them  entitled  to  a  lien  on  the 
beneficial  interest  of  the  administratrix  in  the 
intestate's  estate.  The  vendors  appealed  :— 
Held,  that  the  cement,  as  between  the  vendors 
and  the  administratrix,  was  the  property  of  the 
administratrix,  she  being  a  debtor  to  them  for 
the  price,  and  that  as  between  the  administratrix  | 
mid  the  estate  the  cement  belonged  to  the  estate  ; 
•object  to  the  right  of  the  administratrix  to  be 
indemnified  for  the  price  if  she  was  not  a  debtor 
to  the  estate — that  the  vendors  could  not  have 
any  higher  claim  than  hers,  and  were  not  entitled 
to  anything  more  than  the  order  gave  them. 
Whether  the  order  was  right  in  declaring  them 
entitled  to  a  lien,  quaere.  Evan*,  In  re,  Evan* 
t.  Aaw.  34  Ch.  D.  597  ;  56  L.  T.  768  ;  35  W.  R. 
WS-C.A. 

TraaafBr  of  Shares  —  Sale  by  Representative 
tf  Itmsieial  Owner.  ] — The  registered  owner  of 
a  share  in  a  company  died  in  1859  intestate,  and 
administration  to  her  estate  was  granted  to 
A.  P.,  her  sole  next  of  kin.  A.  P.  died  in 
November,  1859,  intestate,  and  administration 
to  bis  estate  was  granted  to  his  widow,  E.  P. 
la  February,  1860,  E.  P.  passed  the  residuary 
account  of  the  original  owner's  estate  showing 
no  debts.  In  November,  1860,  E.  P.  described 
as  'administratrix  of  A.  P.,  administrator  of  " 


the  original  owner,  executed  a  transfer  of  the 
share,  which  was  passed  by  the  company : — 
Held,  that  the  sale  was  valid  and  binding  in 
equity.  Clark  v.  South  Metropolitan  Oat  Com* 
pant/,  53  L.  T.  646— C.  A.  Affirming  54  L.  J., 
Ch.  259  ;  33  W.  R.  160— North,  J. 


Forged  Transfer  by  one  Sxeentor.] — 


One  of  two  executors,  at  various  periods,  some 
of  which  were  more  than  six  years  before  the 
commencement  of  the  action,  forged  his  co- 
executor's  signature  to  transfers  of  stock,  which 
were  duly  registered.  He  applied  the  proceeds 
of  the  transfers  to  his  own  purposes,  but 
continued  to  pay  the  amounts  of  the  dividends 
to  the  persons  entitled.  The  other  executor,  on 
discovery  of  the  fraud,  informed  the  railway 
company  that  the  transfers  were  invalid,  and 
demanded  that  the  stock  should  be  registered  in 
the  names  of  herself  and  another  who  had  been 
appointed  trustees  of  the  will.  The  railway 
company  declined  to  accede  to  this  request,  and 
the  present  action  was  brought  that  the  company 
might  be  ordered  to  register  the  plaintiffs  as 
owners  of  the  stock  :— Held,  that  one  of  the  co- 
executors  could  not  transfer  stock  registered  in 
the  names  of  both  ;  that  the  transfers  were  not 
good  as  to  one  moiety  of  the  stock,  and  that  the 
innocent  executor  had  in  equity  a  sufficient 
interest  in  the  stock  to  enable  her  to  sue  her 
fraudulent  co-executor  and  the  railway  company. 
Barton  v.  North  Staffordshire  Railway,  38 
Cb.  D.  458  ;  57  L.  J.,  Ch.  800  ;  58  L.  T.  549  ;  36 
W.  R.  754— Kay,  J. 

Sale  of  Real  Estate — Renunciation — Powers 
of  Acting  Executor.]— A  testator  by  his  will 
directed  that  his  debts  should  be  paid,  and  that 
his  property  (which  included  real  estate)  should 
be  sold  by  his  executors.  One  of  the  executors 
alone  proved  the  will,  the  other  renounced  pro- 
bate : — Held,  that  the  acting  executor  could 
make  a  good  title  to  real  estate,  and  that  he  had 
power  to  sell  and  convey  it.  Ftiher  and  Haslett, 
In  re,  13  L.  R.,  Ir.  546— V.-C. 

Sale  of  Leaseholds  by  Administrator  under 
Grant  subsequently  Revoked.] — A  grant  of  letters 
of  administration  obtained  by  suppressing  a 
will  containing  no  appointment  of  executors  is 
not  void  ab  initio,  and  accordingly  a  sale  of 
leaseholds  by  an  administratrix  who  had  ob- 
tained a  grant  of  administration  under  such 
circumstances  to  a  purchaser  who  was  ignorant 
of  the  suppression  of  the  will,  was  upheld  by 
the  court,  although  the  grant  was  revoked  after 
the  sale.  Boxall  v.  Boxall,  27  Ch.  D.  220 ;  53 
L.  J.,  Ch.  838 ;  51  L.  T.  771  ;  32  W.  R.  896— 
Kay,  J. 

Sale  of  Leaseholds  many  Tears  after  Deatb 
of  Testator.] — A  testator  who  died  in  1847, 
possessed  of  certain  leaseholds  held  for  a  term  of 
years,  by  his  will  directed  his  debts  to  be  paid  ; 
and  the  residue  of  his  property  he  bequeathed, 
after  payment  of  his  debts,  to  his  executors  in 
trust  for  payment  of  certain  annuities.  There 
was  no  specific  bequest  of  the  term  of  years. 
The  executors  after  a  lapse  of  thirty-seven  years 
put  up  the  leasehold  premises  for  sale  by 
auction.  No  necessity  for  the  sale  was  disclosed 
on  the  abstract  of  title,  nor  was  it  alleged  that 
any  debts  of  the  testator  remained  unsatisfied. 
The  purchaser  objected  that  the  abstract  did  not 


779 


EXECUTOR    AND    ADMINISTRATOR 


780 


disclose  how  the  vendors,  after  such  a  lapse  of 
time,  still  retained  the  power  to  sell  -.—Held, 
that  a  good  title  to  sell  had  not  been  shown  by 
the  executors.  Molyneavx  and  White,  In  re, 
15  L.  R.,  Ir.  383— C.  A. 

A  testator  left  all  his  property  to  W.  B.  and 
M.  R.  upon  trust,  in  the  first  place,  to  pay  his 
debts,  and  subject  thereto  in  trust  for  his  wife 
and  children  in  equal  shares,  and  appointed  his 
trustees  and  M.  B.  executors.  The  testator  died 
in  April,  1868,  and  in  October,  1885,  M.  R.,  who 
had  alone  proved  the  will,  put  up  for  sale  as 
executrix,  a  portion  of  the  assets  consisting  of 
a  house  in  Dublin,  held  for  a  term  of  years. 
One  of  the  conditions  of  sale  provided  that  the 
purchaser  should  not  require  any  of  the  legatees 
to  be  parties  to  the  conveyance.  C,  having 
purchased  the  premises,  objected  to  the  title, 
upon  the  ground  that  a  good  title  could  not  be 
made  without  the  concurrence  of  the  legatees 
of  the  leasehold  and  W.  B. : — Held,  that  the 
period  which  had  elapsed  since  the  testator's 
death  did  not  create  a  presumption  of  the 
executrix's  assent,  and  that  she  had  authority 
to  sell.  Ryan  and  Car  a  nag  h,  In  re,  17  L.  R., 
Ir.  42— V.-C. 

The  rule  intimated  in  Tanqueray  -  Willavm* 
and  Landau,  In  re  (20  Ch.  D.  465),  that  where 
an  executor  is  selling  real  estate,  after  twenty 
years  have  elapsed  from  the  testator's  decease, 
a  presumption  arises  that  the  debts  have  been 
paid,  and  the  purchaser  is  therefore  put  upon 
inquiry,  does  not  in  general  apply  to  the  case 
of  an  executor  selling  leaseholds  of  his  testator. 
Whistler  and  Richardsim,  In  re,  35  Ch.  D. 
561  ;  56  L.  J.,  Ch.  827  ;  57  L.  T.  77 ;  35  W.  R. 
662  ;  51  J.  P.  820— Kay,  J. 

A  testator  bequeathed  leaseholds  to  his  execu- 
trix upon  trust  to  pay  an  annuity,  and  bequeathed 
his  residuary  estate  to  the  executrix.  Shortly 
before  twenty  years  had  elapsed  from  the  testa- 
tor's decease  the  executrix  contracted  to  sell  the 
leaseholds  at  a  price  to  be  ascertained  by  a 
named  person.  Shortly  after  the  twenty  years 
had  elapsed  the  price  was  ascertained.  It  was 
not  shown  that  there  were  debts  of  the  testator 
remaining  unsatisfied,  nor  did  it  appear  that  the 
executrix  had  been  in  possession  of  the  lease- 
holds as  legatee  : — Held,  that  the  purchaser  was 
not  entitled  to  require  the  concurrence  of  the 
annuitant  in  the  assignment  of  the  leaseholds. 
lb. 

Sale  by  Executor  to  Himself  Voidable.]—  B. 

was  a  member  of  a  firm  of  three  partners,  and 
also  the  surviving  member  of  another  firm  of 
two  partners,  which  was  the  sole  or  chief  creditor 
of  the  first  firm.  B.'s  executor  purchased  the 
estate  of  the  first  firm  for  his  own  benefit,  with 
the  result  that  nothing  was  left  for  B.'s  widow 
and  universal  legatee  : — Held,  in  a  suit  by  the 
widow  against  the  executor,  that  such  sale  was 
voidable  ;  and  that  a  decree  be  made  for  a 
general  administration  of  B.'s  estate,  declaring 
that  the  sale  be  set  aside  with  certain  special 
directions.  Travis  v.  Milne  (9  Hare,  150)  ap- 
proved. Beninfield  v.  Baxter,  12  App.  Cas.  167  ; 
56  L.  J.,  P.  C.  13  ;  56  L.  T.  127— P.  C. 

A.,  B.,  and  C.  were  executors  and  B.  and  C. 
trustees  of  a  testator  who  had  property  in 
Jamaica.  A.  proved  the  will  in  Jamaica,  and 
B.  and  C.  in  England.  Before  the  estate  was 
wound  up  and  accounts  settled,  A.  purchased 
from  B.  and  C.  a  business  carried  on  by  the 


testator  in  Jamaica : — Held,  that  the  sale  to  A., 
being  of  itself  a  part  of  the  process  of  realising 
the  estate,  could  not  be  justified  as  a  sale  to  an 
executor  who  had  assented  to  a  bequest,  and 
must  be  set  aside  at  the  instance  of  the  benefi- 
ciaries. Harvey,  In  re,  Harvey  v.  Lambert* 
51  L.  T.  449— Kekewich,  J. 

Purchase  of  Estate  by  Executor  who  has  not 
Proved.] — A  sale  is  not  to  be  avoided  merely 
because,  when  entered  upon,  the  purchaser  has 
the  power  to  become  trustee  of  the  property 
purchased,  as  for  instance  by  proving  the  will 
which  relates  thereto,  though  in  point  of  fact  he 
never  does  become  such.  Such  a  purchaser  is 
under  no  disability,  and  in  order  to  avoid  such 
sale  it  must  be  shown  that  he  in  fact  used  his 
power  in  such  a  way  as  to  render  it  inequitable 
that  the  sale  should  be  upheld.  Clark  v.  Clarht 
9  App.  Cas.  733  ;  52  L.  J.,  P.  C.  99  ;  51  L.  T.  750 
— P.  C. 

Power  to  Compromise.]  —  Sect  30  of  the 
Trustees  and  Mortgagees  Act,  1860,  which  em- 
powers executors  to  compromise  claims  relating 
to  the  estate  of  their  testator  is  not  confined  to 
claims  outside  his  will,  but  applies  to  the  claim 
of  a  legatee.  Warren,  In  re,  Weedon  v.  Warren, 
53  L.  J.,  Ch.  1016  ;  51  L.  T.  661  ;  32  W.  R.  91* 
— Kay,  J. 


2.  POWER    TO    PLEDGE    OB    MORTGAGE 

ESTATE. 

Pledge  of  Assets  to  secure  Personal  Debt— 
Hotice  —Transfer  of  Mortgage.] — C.  and  his  wife 
were  trustees  and  executors  of  the  will  of  R.,  by 
which  the  testator  devised  and  bequeathed  all 
his  real  and  personal  estate  to  them  in  trust  for 
Mrs.  C.  for  life,  for  her  separate  use,  and,  after 
her  decease,  for  her  children.  Part  of  the  assets 
consisted  of  certain  shares  in  the  H.  Bank,  and 
shortly  after  the  testator's  death,  C.  and  his  wife 
invested  other  portions  of  the  assets  upon  two 
mortgages  of  fee-simple  estate  which  were  made 
to  them  jointly  ;  but  beyond  showing  that  the 
money  had  been  advanced  on  a  joint  account* 
did  not  disclose  any  trust.  C.  afterwards  opened 
an  account  with  the  M.  Bank,  and  as  security 
for  overdrafts,  deposited  with  them  the  hank 
shares  and  tbe  mortgages,  these  latter  being 
8 lib- mortgaged  to  the  M.  Bank  by  deed,  which 
was  not,  however,  acknowledged  by  Mrs.  C.  as  a 
married  woman.  To  reduce  his  overdraft,  C, 
at  the  suggestion  of  the  manager  of  the  M. 
Bank,  authorised  the  bank  to  sell  the  shares, 
and  induced  Mrs.  C.  to  join  in  such  sale.  They 
were  accordingly  sold  by  the  brokers  of  the 
bank  on  account  of  C.  and  his  wife, "  representa- 
tives of  R.,"  and  in  the  transfer  deeds  C.  and  his 
wife  were  described  as  "  executors  of  R/*  The 
M.  Bank  was  also  paid  the  moneys  due  to  them 
on  foot  of  the  mortgages,  but  not  until  after 
receiving  express  notice  of  the  trusts  affecting 
them.  In  a  suit  by  C.'s  children  after  his 
death  : — Held  (1),  that  the  bank  having  received 
the  proceeds  of  sale  of  the  shares,  with  distinct 
notice  that  they  constituted  part  of  the  testator's 
assets,  even  though  unaware  of  the  trusts  of  the 
will,  could  not  retain  the  amount  in  liquidation 
of  C.'s  personal  indebtedness  to  themselves,  and 
were  accordingly  bound  to  replace  the  same. 
(2)  That  the  bank,  not  having  acquired  the 


781 


EXECUTOR    AND    ADMINISTRATOR. 


782 


legal  estate  in  the  mortgaged  premises,  except 
for  the  life  of  C,  in  consequence  of  the  want  of 
acknowledgment  by  Mrs.  C.,  they  could  only  set 
up  an  equitable  title  to  the  mortgages,  which 
eren  assuming  them  to  have  originally  been 
purchasers  for  value  without  notice,  could  not 
prevail  against  the  earlier  equity  in  the  plain- 
tiffs. Connolly  v.  Munster  Bank,  19  L.  R.,  Ir.  1 19 
-V.C. 

Mortgage  of  Baal  Estate  for  Payment  of  Debts 
ami  Legacies.] — Section  18  of  Lord  St.  Leonards' 
Act  does  not  apply  to  a  case  where  a  testator 
has  devised  his  real  estate,  by  way  of  settlement, 
to  a  person  or  persons  for  life,  with  remainders 
orer.  The  meaning  of  that  section  is,  that  where 
a  testator  has  devised  his  whole  estate  and  in- 
terest directly  to  A.  or  to  A.  and  B.,  or  any  number 
of  persons  as  tenants  in  common,  or  joint  tenants 
in  fee  or  in  tail,  so  that  the  devisee  or  devisees 
can  themselves  mortgage  the  property,  then  the 
executors  are  not  to  have  the  power.  But  where 
the  estate  is  devised  by  way  of  settlement,  so 
that  there  is  no  individual  or  individuals  who 
are  able  to  make  a  title  to  a  mortgage,  then  that 
is  a  case  to  which  s.  16  (whereby  executors  are 
empowered  to  mortgage  a  testator's  real  estate 
for  payment  of  debts  or  legacies)  was  intended 
to  apply.  A  testator,  by  his  will,  appointed  cer- 
tain persons  therein  named  executors  and  trustees 
thereof,  and,  after  making  certain  specific  devises 
and  bequests,  he  devised  and  bequeathed  all  the 
residue  of  his  real  and  personal  estate  subject  to 
his  debts,  funeral  and  testamentary  expenses, 
and  to  the  legacies  thereinbefore  bequeathed, 
unto  and  equally  between  his  two  sons  for  life, 
with  remainders  over.  The  executors  mortgaged 
a  portion  of  the  residuary  real  estate  : — Held, 
that  this  was  a  case  in  which  s.  16  was  appli- 
cable, and  that  the  mortgage  was  a  perfectly 
valid  one.  Wilson,  In  re,  Pennington  v.  Payne, 
54  L.  T.  600 ;  34  W.  R.  512— Kay,  J. 

Mortgage  of  Leasehold  to  secure  Debt  due  by 
Executor —  Priority  of  Legatees.] — A  testator 
possessed  of  leaseholds  bequeathed,,  amongst 
others,  pecuniary  legacies  to  each  of  his  two 
daughters,  and  appointed  his  son  residuary 
legatee  and  executor.  The  son,  on  the  testator's 
death,  went  into  possession  of  all  his  assets,  in- 
cluding the  leaseholds,  and  paid  interest  to  the 
daughters  on  their  legacies,  the  principal  sums 
remaining  unpaid  and  due  to  the  legatees. 
Many  years  after  the  testator's  death,  the  tes- 
tator's son  deposited  with  a  bank  the  leases  of 
the  testator's  leasehold  premises  to  secure,  by 
way  of  equitable  mortgage,  the  amount  of  his 
(the  son's)  own  overdrawn  account,  and  the  evi- 
dence showed  that  the  bank  dealt  with  him  as 
absolute  owner.  On  the  petition  of  the  bank, 
the  leaseholds  were  sold,  and  the  daughters 
dahned  to  be  placed  on  the  schedule  as  incum- 
brancers on  the  leaseholds  in  respect  of  their 
anpaid  legacies  in  priority  to  the  claim  of  the 
hank :— Held,  that  the  bank  was  not  entitled  in 
priority  to  the  legatees,  but  was  only  entitled  to 
a  charge  on  the  executor's  beneficial  interest  in 
the  leaseholds  as  residuary  legatee.  Qv-eale's 
Estate,  In  re,  17  L.  B.,  Ir.  361— C.  A. 

Iaplisd  Power  to  Mortgage  —  Executors 
directed  to  carry  on  Trade — Freehold  Premises.] 
—A  testator  by  his  will  directed  that  his  busi- 
should  be  carried  on  by  his  executors,  there- 


inafter named,  and  appointed  as  such  his  wife 
and  5.,  the  latter  of  whom  renounced  probate. 
The  testator  l)ad  carried  on  his  trade  in  premises 
of  which  he  was  seised  for  a  freehold  estate,  and 
these  were  not  devised  to  the  executors.  He  had 
deposited  the  title  deeds  of  these  premises  with 
bankers  by  way  of  equitable  mortgage.  His 
widow,  who  proved  the  will,  continued  carrying 
on  his  trade,  and  after  his  death  she  obtained 
from  the  bank  further  advances  (some  of  which 
were  made  before  probate),  for  the  purpose,  as 
she  stated,  of  carrying  on  the  business,  on  the 
security  of  the  deeds,  which  remained  through- 
out with  the  bank : — Held  (a),  that  the  absence 
of  a  devise  of  the  freehold  premises  to  the 
executors  did  not  prevent  their  making  a  valid 
mortgage  thereof ;  (b)  that  the  fact  that  some 
of  the  advances  were  made  before  probate  was 
immaterial ;  (c)  that  the  direction  to  carry  on 
the  business  was  given  to  the  executors  virtute 
officii,  and  that  all  powers  incident  thereto  were 
capable  of  being  exercised  by  the  acting  execu- 
trix alone  ;  and  (d)  that  a  fresh  deposit  of  the 
title  deeds  was  unnecessary.  Bevitt  v.  Kearney  f 
18  L.  R.,  Ir.  45— C.  A. 

Held,  also,  that  the  freehold  premises  were 
assets  employed  by  the  testator  for  the  purpose 
of  his  business  at  the  time  of  his  death,  and  that 
the  executrix  was  impliedly  authorised  to  mort- 
gage them  for  the  purpose  of  carrying  on  the 
business,  and  therefore  toe  deposit  constituted  a 
valid  security  for  all  the  advances.    lb. 


3.  ALLOWANCES  AND  PAYMENTS  TO. 

Payment  to  one  of  two  Executors—  Executor 
also  Agent  of  Debtor.] — Payment  by  a  debtor, 
for  the  express  purpose  of  discharging  his  debt 
to  an  estate,  to  his  own  agent,  who  happens  to 
be,  but  not  to  the  debtor's  knowledge,  one  of  the 
executors  of  the  estate,  is  not  sufficient  to  dis- 
charge the  debtor.  Miller  v.  Douglas,  56  L. 
J.,  Ch.  91 ;  55  L.  T.  683  ;  35  W.  R.  122— 
Stirling,  J. 

Residuary  Account  signed  by  Executor — . 
Evidence  of  Receipt  of  Money.] — Although  a 
residuary  account  signed  by  an  executor  is  prima 
facie  evidence  of  receipt  of  the  moneys  credited 
in  the  account,  it  is  evidence  which  is  open  to 
explanation,  and  the  acknowledgment  is  not 
conclusive  against  him  in  favour  of  a  debtor  to 
the  estate,    lb. 

Interest  on  Advances  to  Estate.]  —  An 
executrix,  who  advanced  money  for  the  pay- 
ment of  simple  contract  debts  charged  on  the 
testator's  real  estate,  allowed  interest  on  such 
advances.  Biggar  v.  Eastwood,  15  L.  R.,  ir. 
219— M.  R. 

Costs,  Charges,  and  Expenses — Application  to 
Strike  Solicitor  off  Rolls.]— A  solicitor,  acting 
for  the  administrator  of  a  deceased  intestate, 
retained  in  his  hands  a  portion  of  the  estate  and 
failed  to  account  for  the  same.  The  adminis- 
trator applied  for  and  obtained  in  1876,  in  the 
Queen's  Bench  Division,  a  rule  that  the  solicitor 
should  be  struck  off  the  rolls,  or  should  answer 
an  affidavit  relating  to  the  retention  of  the  sum 
by  him.  A  writ  of  attachment  was  issued  against 
the  solicitor,  who  absconded,  and  the  writ  was 
renewed  in  each  term  down  to  1887.  In  that 
year,  upon  further  consideration  of  an  action  to 


788 


EXECUTOR    AND    ADMINISTRATOR. 


784 


administer  the  intestate's  estate,  the  taxing- 
master  was  directed  to  tax  the  costs,  charges, 
and  expenses  of  the  administrator  properly  in- 
curred. He  disallowed  all  the  costs  oi  the  pro- 
ceedings against  the  solicitor,  on  the  ground 
that  they  were  not  ordinary  proceedings,  but 
were  in  the  nature  of  punishment  to  the  soli- 
citor : — Held,  upon  a  summons  to  review  the 
taxation,  that  the  real  object  of  the  proceedings 
against  the  solicitor  was  to  obtain  the  money 
due  to  the  estate,  and  that  therefore  some  of  the 
costs  incurred  ought  to  be  allowed  ;  but  it  was 
referred  to  the  taxing-master  to  consider  how 
far  the  costs  incurred  subsequently  to  obtaining 
the  rule  were  for  the  benefit  of  the  estate  and 
should  be  allowed.  Davit,  In  re,  Mvckalt  v. 
Davis,  57  L.  J.,  Ch.  8 ;  57  L.  T.  765— North,  J. 


4.  RIGHT  OF  RETAINER. 

Claim  within  Statute  of  Frauds.] — An  execu- 
tor or  administrator  would  commit  a  devastavit 
who  paid  a  debt  to  a  creditor  who  is  prevented 
from  enforcing  it  by  the  Statute  of  Frauds.  And 
for  the  same  reason  an  executor  or  administrator 
cannot  retain  such  debt  if  due  to  himself.  A 
father  in  consideration  of  the  marriage  of  his 
daughter  made  a  verbal  promise  to  pay  his 
daughter  and  her  husband  500Z.  He  died  intes- 
tate without  performing  his  promise,  and  the 
daughter  took  out  administration  to  his  estate  : 
— Held,  that  the  administratrix  could  not  retain 
the  debt  out  of  the  assets.  Rownson,  In  re, 
Field  v.  White,  29  Ch.  D.  358  ;  54  L.  J.,  Ch. 
550  ;  52  L.  T.  825  ;  33  W.  R.  604  ;  49  J.  P.  759 
— C.  A. 

Balance  Order  for  Amount  of  Calls.] — A  bal- 
ance order  obtained  by  a  liquidator  of  a  company 
in  course  of  winding  up  against  the  executors  of 
a  deceased  contributory  for  the  payment  of  the 
amount  of  calls  due  from  him,  does  not  operate 
as  a  judgment  to  destroy  the  executors'  right  of 
retainer  in  respect  of  a  debt  due  to  them  from 
their  testator's  estate.  Hubbaek,  In  re,  Inter- 
national Hydropathic  Company  v.  Hatvet,  29 
Ch.  D.  934 ;  54  L.  J.,  Ch.  923  ;  62  L.  T.  908  ;  33 
W.  R.  666— C.  A. 

When  Executrix  a  Cestui  que  Trust— Breach 
©f  Trust.] — A  testator  appointed  his  wife  sole 
executrix  of  his  will  By  a  settlement  executed 
on  the  marriage  of  the  testator  and  his  wife 
certain  funds  were  settled  upon  trust  for  the 
wife  for  life,  with  remainder  to  the  children  of 
the  marriage.  The  testator,  who  acted  as  soli- 
citor for  this  trust,  appropriated  certain  of  the 
trust  funds.  He  also  appropriated  to  his  own 
use  the  residuary  estate  to  which  his  children 
were  entitled  under  the  will  of  a  testatrix  and 
of  which  he  was  one  of  the  trustees.  The  tes- 
tator died,  and  an  action  was  brought  by  a 
creditor  for  the  administration  of  his  estate, 
which  was  insolvent.  The  executrix,  on  behalf 
of  her  own  life  interest,  and  also  on  behalf  of 
her  children,  claimed  the  right  to  retain  out  of 
the  estate  of  the  testator  the  amounts  appro- 
priated by  him  as  above  stated  : — Held,  that  the 
trustees  of  the  settlement  and  will  being  the 
persons  to  sue  for  and  recover  the  funds  appro- 
priated, and  not  the  executrix,  she  had  no  right 
of  retainer.    Dunning,  In  re,  Hatherley  v.  Dun- 


ning, 54  L.  J.,  Ch.  900  ;  63  L.  T.  413  ;  33  W.  R. 
760— C.  A. 

Debt  due  to  Executor  of  Trustee— Exercise  of, 
for  Benefit  of  Trust  Estate.] — B.  was  the  execu- 
trix of  her  late  husband,  whose  estate  was  in- 
solvent, and  who  was  indebted  to  the  estate  of 
A.,  of  which  he  was  sole  trustee,  in  a  consider- 
able sum  of  money  in  respect  of  the  proceeds  of 
sale  of  certain  real  estate,  and  therefore  the 
right  to  receive  the  money  and  the  obligation  to 
pay  were  centred  in  the  same  person.  Under 
these  circumstances  B.  claimed  to  be  entitled, 
in  priority  to  all  other  creditors  upon  her  late 
husband's  estate,  to  retain  out  of  his  personal 
assets  which  had  come  to,  or  were  in  her  hands, 
or  had  been  paid  into  court,  a  sum  in  respect  of 
the  proceeds  of  sale  of  the  real  estate.  The 
question  was,  whether  an  executor  or  adminis- 
trator was  bound  to  retain  for  debts  to  which  he 
was  entitled  as  trustee  when  required  to  do  so 
by  his  cestui  que  trust : — Held,  on  the  authority 
of  Sander  v.  Heathfield  (19  L.  R.  Eq.  21),  that 
the  right  of  retainer  must  be  allowed,  fhith- 
full,  In  re,  Hardwich  v.  Sutton.  57  L.  T.  14— 
Chitty,  J. 

Husband  Executor — Charging  Separate  Estate 
with  Funeral  Expenses.] — A  husband,  executor 
of  his  wife's  will  made  under  a  testamentary 
power  of  appointment,  is  entitled  to  retain  out 
of  her  estate  the  expenses  of  her  funeral,  though 
such  estate  was  insufficient  for  creditors,  and  her 
will  did  not  contain  any  charge  of  debts  and 
funeral  expenses.  McMyn,  In  re,  Lightbown 
v.  McMyn,  33  Ch.  D.  575  ;  55  L.  J.,  Ch.  845  ;  55 
L.  T.  834  ;  35  W.  R.  179— Chitty,  J. 

Judgment  for  Administration.] — An  action  was 
brought  by  creditors  for  the  administration  of 
the  estate  of  an  intestate,  a  widow,  against  the 
administrator,  who  was  her  eldest  son,  and  who 
was  acting  under  letters  of  administration 
granted  to  him  previously.  The  defendant  had 
joined,  as  surety,  with  the  intestate  in  giving  a 
security  for  certain  loans  which  bad  been  pro- 
cured by  her  for  her  own  purposes,  and  be 
claimed  to  retain  out  of  the  assets  of  the  intes- 
tate, in  or  coming  to  his  hands  as  administrator, 
a  sum  sufficient  to  repay  these  loans  with  inte- 
rest. He  had  not,  in  fact,  repaid  them,  although 
he  was  personally  liable  to  do  so.  The  defen- 
dant was  at  one  period  engaged  in  farming,  and 
the  intestate  from  time  to  time  made  him  small 
advances  when  he  was  in  want  oi  money  to 
assist  him  in  carrying  on  his  business,  or  for  his 
maintenance.  The  intestate  never  attempted  to 
recover  these  moneys,  and  she  took  no  acknow- 
ledgment for  them.  The  plaintiffs  sought  to 
charge  the  defendant  with  the  moneys  so  re- 
ceived by  him.  By  the  chief  clerk's  certificate 
it  was  certified,  amongst  other  things,  that  the 
defendant  had  made  the  claim  above  mentioned, 
which  the  chief  clerk  had  allowed,  and  that  the 
plaintiffs  bad  brought  in  the  set-off  before  re- 
ferred to,  but  which  the  chief  clerk  had  dis- 
allowed. The  plaintiffs  took  out  a  summons  to 
vary  the  chief  clerk's  certificate : — Held,  that 
the  right  of  the  retainer  existed  notwithstanding 
the  judgment  for  administration,  and  notwith- 
standing that  the  defendant  had  not  in  fact 
repaid  the  loans  before  the  judgment ;  and  that, 
upon  his  repaying  them,  he  would  be  permitted 


785 


EXECUTOR    AND    ADMINISTRATOR. 


786 


to  retain.    Orate,  In  re,  Evans  v.  Maxwell,  50 
L.T.51— Kay,  J. 

Adiainistration  Action — Beceiver  appointed.] 
—A  creditor  who  has  been  appointed  executor 
by  bis  debtor,  and  who,  as  executor,  has  got  in 
assets  to  the  foil  amount  of  his  debt,  is  entitled 
to  priority,  in  respect  of  his  right  of  retainer, 
after  a  creditor's  administration  action  has  been 
commenced,  and  he  has  handed  over  the  assets 
to  a  receiver  appointed  in  the  action,  and  this 
notwithstanding  that  he  has  proved  for  his  debt 
in  the  action.  Harrison,  In  re,  Latimer  v. 
Harrison,  32  Ch.  D.  395  ;  55  L.  J.,  Ob.  687  ;  55 
L.  T.  150 ;  34  W.  B.  736— Pearson,  J. 

In  a  creditor's  administration  action  brought 
against  an  executrix,  who  was  also  a  creditor  of 
the  testator,  a  receiver  was  appointed,  who  ob- 
tained possession  of  certain  legal  assets  as  to 
which  the  executrix  would  have  had  a  right  of 
retainer  if  they  had  come  to  her  hands  : — Held, 
following  with  reluctance  Richmond  v.  White 
(12  Ch.  D.  361),  and  In  re  Birt  (22  Ch.  D.  604), 
that  after  the  appointment  of  tbe  receiver  the 
executrix  could  not  claim  retainer  out  of  any 
assets  got  in  by  him.  Williams'  Estate,  In  re 
(15  L.  R.,  Eq.  270),  distinguished.  Jones,  In  re, 
Colter  v.  Laxttm,  31  Ch.  D.  440 ;  56  L.  J.,  Cb. 
#0 ;  53  L.  T.  855  ;  34  W.  R.  249— Kay,  J. 

The  estate  was  insolvent,  there  were  both 
specialty  and  simple  contract  creditors,  and  the 
executrix,  who  was  a  simple  contract  creditor, 
had  got  in  certain  legal  assets  before  the  receiver 
was  appointed : — Held,  that  she  could  only 
exercise  her  right  of  retainer  as  against  creditors 
of  equal  degree  with  herself ;  and  accordingly, 
that  the  assets  being  treated  as  divided  rateably 
among  the  specialty  and  simple  contract  credi- 
tors, she  could  retain  her  debt  against  the  divi- 
dends payable  to  the  simple  contract  creditors 
to  the  extent  of  the  legal  assets  received  by 
him.    lb. 

Hinde  Palmer's  Act,  1869.  tbe  object  of  which 
was  only  to  place  specialty  and  simple  contract 
creditors  on  an  equal  footing  inter  se  for  the 
purpose  of  distribution,  ought  not  to  be  so  con- 
strued as  to  give  incidentally  to  an  executor  the 
power  to  defeat  specialty  as  well  as  simple  con- 
tract creditors ;  although  the  act,  by  augment- 
ing the  fund  for  the  payment  of  simple  contract 
debts,  has  to  that  extent  enlarged  the  right  of 
~~*  lb. 


Bight  of  Boprosentatives  of  deceased  Executor 
—Bait  under  Covenant.] — An  executor's  right 
<&  retainer  is  limited  to  so  much  of  the  assets  of 
his  testator  as  comes  into  the  possession  or  under 
the  control  of  the  executor,  or  is  paid  into  court 
daring  his  lifetime.  If  an  executor  asserts  in 
his  lifetime  a  right  of  retainer,  but  dies  without 
having  exercised  it,  his  representatives  may  exer- 
that  right  for  the  benefit  of  his  estate  only 
to  anything  which  came  into  the  actual  pos- 
aion  or  under  the  actual  control  of  their  tes- 
tator, or  which  was  paid  into  court  during  his 
lifetime.  Claims  by  an  executor  for  breach  of 
a  covenant  to  assign  a  policy,  and  to  replace 
furniture,  if  sold,  by  other  furniture  of  like 
▼slue,  are  claims  for  damages  for  breach  of 
pecuniary  contracts  for  which  there  is  a  certain 
standard  or  measure,  and  may  therefore,  on  the 
authority  of  Loans  v.  Casey  (2  W.  BL  965),  be 
JCtained.     Cowtpton,  In  re,  Norton  v.  Compton, 


30  Ch.  D.  15  ;  54  L.  J.,  Ch.  904  ;  53  L.  T.  410— 
C.  A. 

5.    RIGHT  OF  SET-OFF. 

Debt  of  Husband  to  Testator— Wife's  share  in 
Besidue— Deduction  of  Debt  from  Wife's  share.] 
— A  testator  bequeathed  to  his  married  daughter, 
after  the  death  of  his  wife,  a  share  of  the  residue 
of  his  real  and  personal  estate.  The  daughter's 
husband  owed  the  testator  7252..  a  sum  equal  to 
or  in  excess  of  her  share  of  residue.  There  were 
six  children  of  the  marriage.  The  daughter  had 
about  70/.  a  year  derived  from  an  uncle,  for  her 
life,  with  remainder  to  her  children,  and  her 
husband  had  no  private  means,  and  made  only 
some  602.  a  year  by  his  business.  The  testator 
left  six  children  him  surviving.  He  died  in 
1877 : — Held,  the  case  not  coming  within  the 
Married  Women's  Property  Act,  1882,  that 
although  the  executors  had  a  right  to  set  off  the 
debt  due  from  the  husband  against  the  share 
given  to  the  wife,  yet  as  the  claim  of  the  hus- 
band, if  there  had  been  no  debt,  would  have 
been  subject  to  the  wife's  equity  to  a  settlement, 
which  would  therefore  have  been  prior  to  the 
husband's  claim,  the  wife's  equity  was  also  prior 
to  the  executor's  right  of  retainer.  Knight  v. 
Knight  (18  L.  R.,  Eq.  487)  distinguished. 
Briant,  In  re,  Poulter  v.  Shachel,  39  Ch.  D. 
471  ;  57  L.  J.,  Ch.  953  ;  59  L.  T.  215  ;  36  W.  R. 
826— Kay,  J. 

Heir  at  Law— Debtor  to  Estate— Descended 
Bealty.] — A  testator  devised  his  realty  to  his 
executors  and  trustees,  to  be  converted  and 
divided  equally  amongst  five  persons,  one  of 
whom  died  in  his  lifetime,  and  a  portion  of  the 
testator's  realty  lapsed  to  his  heir  at  law,  who 
was  indebted  to  the  testator.  The  realty  was 
sold  and  the  proceeds  received  by  the  surviving 
executor  and  trustee,  who  claimed  to  set  off  the 
debt  against  the  value  of  the  descended  realty : — 
Held,  that  the  executor  could  not  set  off  the  debt 
against  the  lapsed  realty  which  had  descended 
to  the  debtor  as  heir  at  law.  Milnes  v.  Sherwin, 
53  L.  T.  534  ;  33  W.  R.  927— North,  J. 


II.    LIABILITIES. 

1.    IN  GENERAL. 

Contracts  made  whilst  no  Personal  Bepre- 
sentative— Batiiloation—  Services  for  Benefit  of 
Estate.] — During  a  period  in  which  there  was 
no  personal  representative  of  the  estate  of  a 
deceased  testatrix,  the  appellant,  acting  upon 
the  instructions  of  Easton,  a  relative  of  the  de- 
ceased, did  work  as  a  solicitor  in  respect  of  the 
administration  and  for  the  benefit  of  the  estate. 
Subsequently  the  respondent  Phillips  obtained 
letters  of  administration  de  bonis  non,  and  re- 
fused to  pay  the  appellant's  bill  of  costs : — 
Held,  that  the  respondent  was  not  bound,  as 
administrator,  to  pay  such  costs.  Phillips,  Eao 
parte,  Watson,  In  re,  19  Q.  B.  D.  234 ;  66  L.  J., 
Q.  B.  619  ;  67  L.  T.  215  ;  35  W.  R.  709— C.  A. 

Shares  taken  by  Executors. J  —  Executors 
applied  for  shares  in  a  company  in  exchange  for 
shares  held  by  their  testator  in  another  company, 
the  business  of  which  had  been  taken  over  by 
the  company  to  which  the  application  was 
made.    An  offer  of  an  exchange  of  shares  had 


787 


EXECUTOR   AND    ADMINISTRATOR. 


788 


been  made  to  the  testator  in  his  lifetime,  but  he 
had  never  replied  to  it.  The  executors  had 
originally  been  entered  on  the  register  indi- 
vidually as  "  executors  of  W.  D.,  deceased,"  in 
respect  of  the  shares  ;  but  at  their  request  their 
names  were  removed  from  the  register,  and  their 
testator's  entered  in  their  place  as  holders  of  the 
shares : — Held,  that  this  was  a  new  contract 
entered  into  by  the  executors,  upon  which  the 
testator's  estate  was  not  liable.  The  testator's 
name  was  a  mere  dummy  name,  and  the 
executors  were  personally  liable  in  respect  of 
the  shares.  Cheshire  Banking  Company,  In  re. 
Duff's  Executors'  Cane,  32  Ch.  D.  301 ;  54  L.  T. 
558—0.  A. 

Bon-repair  by  Tenant  for  Life  —  Claim 
whether  in  time.] — Where  a  testator  gives 
successive  interests,  and  adds  to  them  a  direc- 
tion that  the  person  who  takes  shall  do  a 
particular  thing,  and  the  devisee  accepts  the 
estate,  there  is  a  personal  liability,  capable  of 
being  enforced  in  equity,  to  perform  the  direc- 
tions imposed  by  the  testator.  A  testator  gave 
his  real  estate  to  trustees  upon  trust  for  his 
widow  for  life,  with  remainder  over,  in  events 
which  happened,  to  A.  for  life,  and,  in  events 
which  happened,  to  B.  for  life,  with  remainder 
to  his  children,  if  any,  in  tail,  with  remainders 
over.  The  will  contained  a  direction  that  each 
tenant  for  life  or  in  tail  of  any  of  the  heredita- 
ments should,  during  her  or  his  estate,  keep  the 
buildings  thereon  in  substantial  repair  ;  and  if 
any  such  person  should  neglect  to  effect  such 
repairs  within  six  months  after  being  thereunto 
requested  by  the  trustees,  the  trustees  should  be 
at  liberty  to  effect  such  repairs.  The  widow  of 
the  testator  was  in  possession  of  the  heredita- 
ments until  her  death  in  June,  1883.  Her  will 
was  proved  in  February,  1884.  She  had  omitted 
to  repair  the  buildings.  More  than  six  months 
after  her  death,  but  within  six  months  after 
probate  of  her  will,  a  claim  was  carried  in 
against  her  estate,  in  an  administration  action,  in 
respect  of  the  omission  to  repair,  the  claimants 
being  the  trustees  of  the  will  and  the  then 
equitable  tenant  for  life  : — Held,  that  the  estate 
of  the  deceased  tenant  for  life  was  liable  for 
such  omission  to  repair.  Held,  also,  that  the 
claim  was  properly  made  by  the  trustees  of  the 
will,  and  that  the  remedy  being  in  equity,  the 
3  &  4  Will.  4,  c.  42,  s.  2  did  not  apply. 
Williames,  In  re,  Andrew  v.  William**,  54  L. 
T.  105— C.  A. 

Lease — Measure  of  liability.] — An  executor 
who  takes  possession  of  a  leasehold  of  his  testator 
is  liable  personally  as  assign  of  the  lease  for 
subsequent  rent,  up  to  the  letting  value  of  the 
holding.  Bowes,  In  re,  Strathvwre  {Earl)  v. 
Vane,  37  Ch.  D.  128 ;  57  L.  J.,  Ch.  455  ;  58  L. 
T.  309  ;  36  W.  R.  393— North,  J. 

When  executors  received  a  premium  upon  the 
assignment  of  a  lease,  and  paid  the  amount  into 
their  testator's  estate : — Held,  that  they  were 
not  personally  liable  for  rent  accrued  due  after  the 
assignment,  in  respect  of  the  premium  so  paid  in. 
Goodland  v.  Fwing.  1  C.  &  K.  43 — Stephen,  J. 

Executor  de  ton  tort.]— An  executor  de 

son  tort  in  possession  of  lands,  held  by  the 
deceased  owner  for  an  unexpired  term  of  years, 
is  suable  by  the  landlord  for  rent.  Fielding  v. 
Cronin,  16  L.  R.,  Ir.  379— C.  A. 


Lost  by  Agent's  Insolvency— Onus  of  Proof.] 
A  common  order   having  been  made  for  the 
administration  of  a  testator's  estate,  the  district 
registrar  by  his  certificate  found  the  outstanding 
personal  estate  to  consist  in  part  of  book  debts 
amounting  nominally  to  291  J. ;  as  to  113/.,  part 
of  which  he  certified  that  it  represented  a  por- 
tion of  book  debts  which  the  executors  had 
employed  H.  to  collect,  and  for  which  H.  had 
not  accounted,  and  had  claimed  to  deduct  55J. 
for  remuneration,  but  that  25/.  was  enough.    The 
certificate  went  on  to  say,  that  H.  had  gone  into 
liquidation  and  that  no  part  of  the  113/.  was 
likely  to  be  recovered.    No  application  was  made 
to  vary  this  certificate.    It  appeared  that  H.  had 
collected  in  all  168/.,  had  paid  to  the  executors 
in  April,  May,  and  June,  1880,  sums  amounting 
in  all  to  55/.,  and  had  gone  on  collecting  without 
making  any  further  payment  to  the  executors 
till  July,  1881,  when  a  receiver  was  appointed  in 
the  action,  but  it  did  not  appear  when  he  became 
insolvent,  nor  at  what  times  the  moneys  received 
came  to  his  hands.     The  action  having  come  on 
for  further  consideration  : — Held,  that  where  an 
executor  or  trustee  employs  an  agent  to  collect 
money  under  circumstances  which  make  such 
employment  proper,  and  the  money  collected  is 
lost  by  the  agent's  insolvency,  the  burden  of 
proof  is  not  on  the  executor  to  show  that  the 
loss  was  not  attributable  to  his  own  default,  but 
on  the  persons  seeking  to  charge  him  to  prove 
that  it  was.    Brier,  In  re,  Brier  v.  Ikiso*,  2& 
Ch.  D.  238  ;  83  W.  R.  20-<\  A. 


2.     DEVASTAVIT. 

Effect  of  Laches.] — Mere  laches  in  abstaining 
from  calling  upon  the  executors  to  realise  for 
the  purpose  of  paying  his  debt  will  not  deprives 
creditor  of  his  right  to  sue  the  executors  for 
devastavit,  unless  there  has  been  such  a  course  of 
conduct,  or  express  authority  on  his  part,  that 
the  executors  have  been  thereby  misled  into  part- 
ing with  the  assets,  available  to  answer  his  claim. 
Birch,  In  re,  Roe  v.  Birch,  27  Ch.  D.  622 ;  54 
L.  J.,  Ch.  119  ;  51  L.  T.  777  ;  33  W.  R.  72- 
Chitty,  J. 

Claim  within  Statute  of  Frauds.]— An  ex- 
ecutor or  administrator  commits  a  devastavit  by 
paying  a  creditor  who  is  prevented  from  en- 
forcing his  claim  by  the  Statute  of  Frauds. 
Rownson,  In  re,  Field  v.  White,  ante,  coL  783. 

Mortgage  by  TeaUtor— Limitations,  Statats 
of— Bents  and  Profits— Assets— Specialty  Cre- 
ditor.]—A  testator  mortgaged  freeholds,  and 
died  in  May,  1867,  having  devised  all  his  real 
and  personal  estate  to  A.  and  B.  upon  certain 
trusts,  and  having  appointed  them  his  executors. 
The  executors,  without  making  provision  for  the 
mortgage  debt,  applied  the  whole  of  the  personal 
estate  in  payment  to  simple  contract  creditoxs 
and  beneficiaries.  In  1869,  A.  died,  and  C.  was 
appointed  trustee  in  his  place  in  1871.  The 
rents  of  the  real  estate  were  received  by  A.  and 
B.,  and  by  B.  and  C,  and  after  payment  of  the 
interest  on  the  mortgage  the  balance  was  applied 
in  accordance  with  the  trusts  of  the  wilL  The 
mortgaged  property  became  an  insufficient  secn- 
rity,  and  interest  having  fallen  into  arrear,  the 
mortgagees  in  1886  commenced  proceedinp 
against  B.  and  C,  under  which  accounts  of  the 


789 


EXECUTOR    AND    ADMINISTRATOR. 


790 


testator's  personal  estate  received  by  A.  and  B. 
or  by  B.  alone,  were  directed,  and  also  the  usual 
1  iccoonts  of  the  testator's  real  estate,  including 
i  an  tocoont  of  rents  and  profits  against  B.  and 
'  C.  Accounts  were  accordingly  carried  in  in 
which  B.  and  C.  claimed  credit  for  all  payments 
and  disbursements  made  to  simple  contract 
creditors  and  beneficiaries,  and  further  that  as  to 
loch  of  the  payments  as  were  made  by  A.  and  B. 
upwards  of  six  years  prior  to  the  action  any 
claim  on  a  devastavit  was  statute  barred,  and 
that  as  to  the  rents  and  profits  they  were  not 
liable  to  account  for  them  at  all : — Held,  follow- 
ing Martden,  In  re  (26  Ch.  D.  783)  on  this  point 
and  distinguishing  Gale,  In  re  (22  Ch.  D.  820), 
that  B.  could  not  set  up  his  own  and  A.'s 
wrongful  payment  by  way  of  devastavit  as  a 
defence  in  order  to  claim  the  benefit  of  the 
Statute  of  Limitations.  Hyatt,  In  re,  Bowie*  v. 
Byatt,  38  Ch.  D.  609  ;  57  L.  J.,  Ch.  777  ;  69  L. 
T.  227— Chitty,  J. 

That  as  to  the  rents  and  profits  which  had 
been  received  by  B.  or  B.  and  C.  jointly,  that 
they  were  under  3  &  4  Will.  4,  c.  104,  assets 
by  accretion  liable  under  the  circumstances  for 
payment  of  creditors  by  specialty  just  as  much  as 
the  real  estate  was  assets  under  that  statute.   lb. 
The  executors  of  a  testator  who  had  mortgaged 
certain   leasehold    property  belonging  to  him 
continued  to  pay  interest  on  the  mortgage  debts, 
bat  applied  the  surplus  of  the  testator's  estate  in 
payments  to  beneficiaries  under  his  will,  making 
no  provision  for  meeting  the  mortgages.    The 
mortgaged  property  proved  insufficient  for  pay- 
ment of  the  mortgages.  In  an  action  commenced 
for  administration  of  the  testator's  estate,  the 
mortgagees  claimed  that    the  executors   were 
liable  to  them  for  the  payment  made  to  benefi- 
ciaries.   The  executors  claimed  to  be  credited 
with  these  payments  on  the  ground  of  acqui- 
escence by  the  mortgagees,  and  as  to  such  of 
them  as  were  made  more  than  six  years  before 
the  commencement  of  the  action,  they  claimed 
the  benefit  of  the  Statute  of  Limitations  .-—Held, 
that  there  had  been  no  acquiescence  by  the 
mortgagees,  and  that  the  executors,  being  trustees 
for  the  creditors,  could  not  set  up  the  Statute  of 
Limitations  as  a  bar  to  a  claim  in  respect  of  a 
devastavit  committed  by  them.    Martden,  In  re, 
Bmoden  y.  Lay  I  and,  26  Ch.  D.  784  ;  54  L.  J., 
Ch.  WO  ;  51  L.  T.  417  ;  33  W.  B.  28— Kay,  J. 

liability  of  Executors  of  Executor  de  ion 
tort.] — J.  being  indebted  to  the  plaintiff  for 
3601.  died  intestate,  and  his  widow,  A.,  without 
obtaining  letters  of  administration,  intermeddled 
with  his  assets,  and  on  the  plaintiffs  suing  her  as 
executrix  of  her  husband  for  that  sum,  she 
allowed  judgment  to  go  by  consent.  A.  died 
shortly  after,  haviDg  appointed  the  defendants 
her  executors.  The  plaintiff  then  brought  an 
action  against  her  executors  to  recover  the  360/., 
suggesting  a  devastavit  by  A. ;  they  pleaded  no 
assets  and  denied  the  devastavit;  the  plaintiff 
replied,  by  way  of  estoppel,  the  judgment  against 
A.  The  jury  found  that  at  A.'s  death  there 
remained  assets  of  J.  to  the  amount  of  154/. : — 
Held,  that  the  judgment  against  A.  was  conclu- 
sive to  show  that  she  had  then  assets  of  J.  to  the 
amount  of  360/.,  and  that  therefore  a  devastavit 
must  be  presumed  to  have  been  committed  by 
her  to  the  extent  of  the  difference  between  360/. 
and  154J.  Ennis  v.  Raehford,  14  L.  R.,  Ir.  286 
-Q.B.D. 


III.    ASSETS. 
1.    WHAT    ARE. 

By  Accretion.] — See  Hyatt,  In  re,  supra. 

Windfalls  —  Real   or  Personal   Estate.]— A 

testator  devised  estates  upon  which  there  were 
plantations  of  larch  trees.  At  the  time  of  bis 
death  a  great  number  of  the  larch  trees  had 
been  more  or  less  blown  down  by  extraordinary 
gales  : — Held,  that  having  regard  to  the  maxim 
"  quicquid  pi  an  tat  ur  solo,  solo  cedit,"  the  prin- 
ciple applicable  was  that  if  a  tree  was  attached 
to  the  soil  it  was  real  estate,  and  if  severed, 
personalty  ;  that  the  life  and  manner  of  growth 
of  any  particular  tree  was  no  test  of  its  attach- 
ment to  the  soil,  and  that  the  degree  of  attach- 
ment or  severance  was  a  question  of  fact  in  the 
case  of  each  particular  tree.  If  the  tree  was 
severed  from  the  soil  it  belonged  to  the  executors, 
if  otherwise,  to  the  inheritance.  Ainnlie,  In  re, 
Swinbum  v.  Aintlie,  30  Ch.  D.  485  ;  55  L.  J.r 
Ch.  615  ;  53  L.  T.  645  ;  33  W.  R.  910  ;  50  J.  P. 
180— C.  A. 

Documents  —  Administrator  de  bonis  non  — 
Privity  of  Estate.] — Where  a  solicitor  has  acted 
professionally  for  a  testator  and  for  his  executor 
or  administrator,  and  papers  belonging  to  the 
estate  have  come  into  his  possession,  and,  after 
the  death  of  the  executor  or  administrator,  an 
administrator  de  bonis  non  has  been  appointed, 
the  administrator  de  bonis  non  is  not  entitled  to 
reclaim  from  the  solicitors  the  papers  in  his 
possession  without  first  paying  the  costs  due  to 
trim,  not  only  in  respect  of  work  done  for  the 
testator,  but  also  in  respect  of  work  done  for  the 
executor  or  administrator.  Watson,  In  re,  63 
L.  J.,  Ch.  305 ;  60  L.  T.  205 ;  32  W.  R.  477— 
Pearson,  J. 

There  is  a  privity  of  estate  between  an  executor 
or  administrator  and  a  subsequent  administrator 
de  bonis  non,  and  the  liabilities  of  the  estate  pass, 
with  the  benefits  of  it,  to  the  administrator  de 
bonis  non.    lb. 


2.  ADMISSION  OF  ASSETS. 

Legacy — Payment  of  Interest  to  Tenant  for 
Life.] — In  January,  1863,  P.,  the  executor,  wrote 
to  the  tenant  for  life  under  a  will  as  follows : 
"  In  answer  to  your  letter  in  reference  to  the 
trust  moneys  in  which  you  have  a  life  interest 
and  the  family  of  the  late  Mr.  Payne  the  ulti- 
mate benefit,  I  beg  to  say  that  the  money  is 
placed  out  on  different  mortgage  securities  with 
moneys  of  my  own,  realising  as  much  interest  aa 
possible.  Had  it  not  been  for  your  sake  the 
money  should  have  been  placed  in  the  Govern- 
ment stocks  years  ago."  From  1854  down  to 
the  time  of  his  death  in  1874  P.  regularly  paid 
to  the  tenant  for  life  28/.  a  year  by  equal 
quarterly  payments  of  7/.  each.  In  the  year 
1868  P.  passed  his  residuary  account,  showing 
no  assets : — Held,  that  the  letter  of  January, 
1863,  and  the  quarterly  payments  regularly 
made  by  P.  both  before  and  after  writing  that 
letter,  were,  under  the  circumstances,  such  an 
admission  of  assets  as  to  make  his  estate  per- 
sonally liable.  Payne  v.  Tanner,  55  L.  J.,  Ch. 
611 ;  56  L.  T.  258 ;  34  W.  R.  714— North,  J. 


787 


EXECUTOR    AND    ADMINISTRATOR. 


788 


been  made  to  the  testator  in  his  lifetime,  but  he 
had  never  replied  to  it.  The  executors  had 
originally  been  entered  on  the  register  indi- 
vidually as  "  executors  of  W.  D.,  deceased,"  in 
respect  of  the  shares  ;  but  at  their  request  their 
names  were  removed  from  the  register,  and  their 
testator's  entered  in  their  place  as  holders  of  the 
shares : — Held,  that  this  was  a  new  contract 
entered  into  by  the  executors,  upon  which  the 
testator's  estate  was  not  liable.  The  testator's 
name  was  a  mere  dummy  name,  and  the 
executors  were  personally  liable  in  respect  of 
the  shares.  Cheshire  Banking  Company,  In  re, 
Duff's  Executors'  Case,  32  Ch.  D.  301  ;  54  L.  T. 
658— C.  A. 

Hon-repair  by  Tenant  for  Life  —  Claim 
whether  in  time.]  —  Where  a  testator  gives 
successive  interests,  and  adds  to  them  a  direc- 
tion that  the  person  who  takes  shall  do  a 
particular  thing,  and  the  devisee  accepts  the 
estate,  there  is  a  personal  liability,  capable  of 
being  enforced  in  equity,  to  perform  the  direc- 
tions imposed  by  the  testator.  A  testator  gave 
his  real  estate  to  trustees  upon  trust  for  his 
widow  for  life,  with  remainder  over,  in  events 
which  happened,  to  A.  for  life,  and,  in  events 
which  happened,  to  B.  for  life,  with  remainder 
to  his  children,  if  any,  in  tail,  with  remainders 
over.  The  will  contained  a  direction  that  each 
tenant  for  life  or  in  tail  of  any  of  the  heredita- 
ments should,  during  her  or  his  estate,  keep  the 
buildings  thereon  in  substantial  repair  ;  and  if 
any  such  person  should  neglect  to  effect  such 
repairs  within  six  months  after  being  thereunto 
requested  by  the  trustees,  the  trustees  should  be 
at  liberty  to  effect  such  repairs.  The  widow  of 
the  testator  was  in  possession  of  the  heredita- 
ments until  her  death  in  June,  1883.  Her  will 
was  proved  in  February,  1884.  She  had  omitted 
to  repair  the  buildings.  More  than  six  months 
after  her  death,  but  within  six  months  after 
probate  of  her  will,  a  claim  was  carried  in 
against  her  estate,  in  an  administration  action,  in 
respect  of  the  omission  to  repair,  the  claimants 
being  the  trustees  of  the  will  and  the  then 
equitable  tenant  for  life  : — Held,  that  the  estate 
of  the  deceased  tenant  for  life  was  liable  for 
such  omission  to  repair.  Held,  also,  that  the 
claim  was  properly  made  by  the  trustees  of  the 
will,  and  that  the  remedy  being  in  equity,  the 
3  &  4  Will.  4,  c.  42,  s.  2  did  not  apply. 
Williams*,  In  re,  Andrew  v.  WiUiames,  54  L. 
T.  105— C.  A. 

Leaie — Measure  of  liability.] — An  executor 
who  takes  possession  of  a  leasehold  of  his  testator 
is  liable  personally  as  assign  of  the  lease  for 
subsequent  rent,  up  to  the  letting  value  of  the 
holding.  Bowes,  In  re,  Strathmore  {Earl)  v. 
Vane,  37  Ch.  D.  128 ;  57  L.  J.,  Ch.  455  ;  58  L. 
T.  309  ;  36  W.  R.  393— North,  J. 

When  executors  received  a  premium  upon  the 
assignment  of  a  lease,  and  paid  the  amount  into 
their  testator's  estate : — Held,  that  they  were 
not  personally  liable  for  rent  accrued  due  after  the 
assignment,  in  respect  of  the  premium  so  paid  in. 
Goodland  v.  Eicing,  1  C.&  E.  43 — Stephen.  J. 


Executor  de  ton  tort.]— An  executor  de 

son  tort  in  possession  of  lands,  held  by  the 
deceased  owner  for  an  unexpired  term  of  years, 
is  suable  by  the  landlord  for  rent.  Fielding  v. 
Cronin,  16  L.  R.,  Ir.  379—  0.  A. 


Loss  by  Agent's  Insolvency— Onus  of  Proof.] 
A  common  order   having  been  made  for  the 
administration  of  a  testator's  estate,  the  district 
registrar  by  his  certificate  found  the  outstanding 
personal  estate  to  consist  in  part  of  book  debts 
amounting  nominally  to  2912. ;  as  to  1132.,  part 
of  which  he  certified  that  it  represented  a  por- 
tion of  book  debts  which  the  executors  had 
employed  H.  to  collect,  and  for  which  H.  had 
not  accounted,  and  had  claimed  to  deduct  552. 
for  remuneration,  but  that  25/.  was  enough.    The 
certificate  went  on  to  say,  that  H.  had  gone  into 
liquidation  and  that  no  part  of  the  1132.  was 
likely  to  be  recovered.    No  application  was  made 
to  vary  this  certificate.    It  appeared  that  H.  had 
collected  in  all  1682.,  had  paid  to  the  executor* 
in  April,  May,  and  June,  1880,  sums  amounting 
in  all  to  552.,  and  had  gone  on  collecting  without 
making  any  further  payment  to  the  executors 
till  July,  1881,  when  a  receiver  was  appointed  in 
the  action,  but  it  did  not  appear  when  he  became 
insolvent,  nor  at  what  times  the  moneys  receded 
came  to  his  hands.     The  action  having  come  on 
for  further  consideration  : — Held,  that  where  an 
executor  or  trustee  employs  an  agent  to  collect 
money  under  circumstances  which  make  such 
employment  proper,  and  the  money  collected  is 
lost  by  the  agent's  insolvency,  the  burden  of 
proof  is  not  on  the  executor  to  show  that  the 
loss  was  not  attributable  to  his  own  default,  but 
on  the  persons  seeking  to  charge  him  to  prove 
that  it  was.    Brier,  In  re,  Brier  v.  Ecison,  2d 
Ch.  D.  238  ;  33  W.  R.  20-4?.  A. 


2.    DEVASTAVIT. 

Effect  of  Laches.] — Mere  laches  in  abstaining 
from  calling  upon  the  executors  to  realise  for 
the  purpose  of  paying  his  debt  will  not  deprive  a 
creditor  of  his  right  to  sue  the  executors  for 
devastavit,  unless  there  has  been  such  a  course  of 
conduct,  or  express  authority  on  his  part,  that 
the  executors  have  been  thereby  misled  into  part- 
ing with  the  assets,  available  to  answer  his  claim. 
Birch,  In  re,  Roe  v.  Birch,  27  Ch.  D.  622 ;  54 
L.  J.,  Ch.  119  ;  51  L.  T.  777  ;  33  W.  R.  72- 
Chitty,  J. 

Claim  within  Statute  of  Frauds.]— An  ex- 
ecutor or  administrator  commits  a  devastavit  by 
paying  a  creditor  who  is  prevented  from  en- 
forcing his  claim  by  the  Statute  of  Fraud** 
Rownson,  In  re,  Field  v.  White,  ante,  coL  783. 

Mortgage  by  Testator— Limitation*,  Statute 
of— Bents  and  Profits —Assets — Specialty  Cre- 
ditor.]— A  testator  mortgaged  freeholds,  and 
died  in  May,  1867,  having  devised  all  his  real 
and  personal  estate  to  A.  and  B.  upon  certain 
trusts,  and  having  appointed  them  his  executors. 
The  executors,  without  making  provision  for  the 
mortgage  debt,  applied  the  whole  of  the  personal 
estate  in  payment  to  simple  contract  creditors 
and  beneficiaries.  In  1869,  A.  died,  and  C.  was 
appointed  trustee  in  his  place  in  1871.  The 
rents  of  the  real  estate  were  received  by  A.  and 
B.,  and  by  B.  and  C,  and  after  payment  of  the 
interest  on  the  mortgage  the  balance  was  applied 
in  accordance  with  the  trusts  of  the  will  The 
mortgaged  property  became  an  insufficient  secu- 
rity, and  interest  having  fallen  into  arrear,  the 
mortgagees  in  1886  commenced  proceedings, 
against  B.  and  C,  under  which  accounts  of  the 


789 


EXECUTOR    AND    ADMINISTRATOR. 


790 


testator's  personal  estate  received  by  A.  and  B. 
or  by  B.  alone,  were  directed,  and  also  the  usual 
acoonnts  of  the  testator's  real  estate,  including 
an  account  oi  rents  and  profits  against  B.  and 
C.  Accounts  were  accordingly  carried  in  in 
which  B.  and  C.  claimed  credit  for  all  payments 
and  disbursements  made  to  simple  contract 
creditors  and  beneficiaries,  and  further  that  as  to 
inch  of  the  payments  as  were  made  by  A.  and  B. 
upwards  of  six  years  prior  to  the  action  any 
claim  on  a  devastavit  was  statute  barred,  and 
that  as  to  the  rents  and  profits  they  were  not 
liable  to  account  for  them  at  all : — Held,  follow- 
ing Martden,  In  re  (26  Ch.  D.  783)  on  this  point 
and  distinguishing  Gale,  In  re  (22  Ch.  D.  820), 
that  B.  could  not  set  up  bis  own  and  A.'s 
wrongful  payment  by  way  of  devastavit  as  a 
defence  in  order  to  claim  the  benefit  of  the 
Statute  of  Limitations.  Hyatt,  In  re,  Bowles  v. 
Hfatt,  38  Ch.  D.  609  ;  57  L.  J.,  Ch.  777  ;  69  L. 
T.  227— Chitty,  J. 

That  as  to  the  rents  and  profits  which  had 
been  received  by  B.  or  B.  and  C.  jointly,  that 
they  were  under  3  &  4  Will.  4,  c.  104,  assets 
by  accretion  liable  under  the  circumstances  for 
payment  of  creditors  by  specialty  just  as  much  as 
the  real  estate  was  assets  under  that  statute.  lb. 
The  executors  of  a  testator  who  had  mortgaged 
certain  leasehold  property  belonging  to  him 
continued  to  pay  interest  on  the  mortgage  debts, 
tort  applied  the  surplus  of  the  testator's  estate  in 
payments  to  beneficiaries  under  his  will,  making 
no  provision  for  meeting  the  mortgages.  The 
mortgaged  property  proved  insufficient  for  pay- 
ment of  the  mortgages.  In  an  action  commenced 
for  administration  of  the  testator's  estate,  the 
mortgagees  claimed  that  the  executors  were 
liable  to  them  for  the  payment  made  to  benefi- 
ciaries. The  executors  claimed  to  be  credited 
with  these  payments  on  the  ground  of  acqui- 
escence by  the  mortgagees,  and  as  to  such  of 
them  as  were  made  more  than  six  years  before 
the  commencement  of  the  action,  they  claimed 
the  benefit  of  the  Statute  of  Limitations  -.—Held, 
that  there  had  been  no  acquiescence  by  the 
mortgagees,  and  that  the  executors,  being  trustees 
for  the  creditors,  could  not  set  up  the  Statute  of 
limitations  as  a  bar  to  a  claim  m  respect  of  a 
devastavit  committed  by  them.  Marsden,  In  re, 
Bwoden  v.  Lay  I  and,  26  Ch.  D.  784  ;  54  L.  J., 
Ch.  640  ;  51  L.  T.  417  ;  33  W.  B.  28— Kay,  J. 

Liability  of  Executors  of  Executor  de  son 
tort. J—J.  being  indebted  to  the  plaintiff  for 
3602.  died  intestate,  and  his  widow,  A.,  without 
obtaining  letters  of  administration,  intermeddled 
with  his  assets,  and  on  the  plaintiffs  suing  her  ae 
executrix  of  her  husband  for  that  sum,  she 
allowed  judgment  to  go  by  consent.  A.  died 
■hortly  after,  having  appointed  the  defendants 
her  executors.  The  plaintiff  then  brought  an 
action  against  her  executors  to  recover  the  3601., 
suggesting  a  devastavit  by  A. ;  they  pleaded  no 
assets  and  denied  the  devastavit;  the  plaintiff 
replied,  by  way  of  estoppel,  the  judgment  against 
A  The  jury  found  that  at  A.'s  death  there 
remained  assets  of  J.  to  the  amount  of  1541. : — 
Held,  that  the  judgment  against  A.  was  conclu- 
aWe  to  show  that  she  had  then  assets  of  J.  to  the 
amount  of  360/.,  and  that  therefore  a  devastavit 
must  be  presumed  to  have  been  committed  by 
her  to  the  extent  of  the  difference  between  360?. 
and  154/.  Ennit  v.  Roehford,  14  L.  B.,  Ir.  285 
-Q.R.D. 


III.    ASSETS. 
1.    WHAT    ARE. 

By  Accretion.] — See  Hyatt,  In  re,  supra. 

Windfalls  —  Beal   or  Personal   Estate.]— A 

testator  devised  estates  upon  which  there  were 
plantations  of  larch  trees.  At  the  time  of  his 
death  a  great  number  of  the  larch  trees  had 
been  more  or  less  blown  down  by  extraordinary 
gales  : — Held,  that  having  regard  to  the  maxim 
"  quicquid  pi  an  tat  ur  solo,  solo  cedit,"  the  prin- 
ciple applicable  was  that  if  a  tree  was  attached 
to  the  soil  it  was  real  estate,  and  if  severed, 
personalty  ;  that  the  life  and  manner  of  growth 
of  any  particular  tree  was  no  test  of  its  attach- 
ment to  the  soil,  and  that  the  degree  of  attach* 
ment  or  severance  was  a  question  of  fact  in  the 
case  of  each  particular  tree.  If  the  tree  was 
severed  from  the  soil  it  belonged  to  the  executors,, 
if  otherwise,  to  the  inheritance.  Aiwtlie,  In  re, 
Swinbum  v.  Ainslie,  30  Ch.  D.  485  ;  55  L.  J.r 
Ch.  615  ;  53  L.  T.  645  ;  33  W.  R.  910  ;  50  J.  P. 
180— C.  A. 

Documents  —  Administrator  de  bonis  non  — 
Privity  of  Estate.] — Where  a  solicitor  has  acted 
professionally  for  a  testator  and  for  his  executor 
or  administrator,  and  papers  belonging  to  the 
estate  have  come  into  his  possession,  and,  after 
the  death  of  the  executor  or  administrator,  an 
administrator  de  bonis  non  has  been  appointed, 
the  administrator  de  bonis  non  is  not  entitled  to 
reclaim  from  the  solicitors  the  papers  in  his 
possession  without  first  paying  the  costs  due  to 
him,  not  only  in  respect  of  work  done  for  the 
testator,  but  also  in  respect  of  work  done  for  the 
executor  or  administrator.  Watson,  In  re,  53- 
L.  J.,  Ch.  305  ;  60  L.  T.  205 ;  32  W.  R.  477— 
Pearson,  J. 

There  is  a  privity  of  estate  between  an  executor 
or  administrator  and  a  subsequent  administrator 
de  bonis  non,  and  the  liabilities  of  the  estate  pass, 
with  the  benefits  of  it,  to  the  administrator  de 
bonis  non.    lb. 


2.  ADMISSION  OF  ASSETS. 

Legacy — Payment  of  Interest  to  Tenant  for 

Life.] — In  January,  1863,  P.,  the  executor,  wrote 
to  the  tenant  for  life  under  a  will  as  follows: 
"In  answer  to  your  letter  in  reference  to  the 
trust  moneys  in  which  you  have  a  life  interest 
and  the  family  of  the  late  Mr.  Payne  the  ulti- 
mate benefit,  I  beg  to  say  that  the  money  is. 
placed  out  on  different  mortgage  securities  with 
moneys  of  my  own,  realising  as  much  interest  aa 
possible.  Had  it  not  been  for  your  sake  the 
money  should  have  been  placed  in  the  Govern- 
ment stocks  years  ago."  From  1854  down  to 
the  time  of  his  death  in  1874  P.  regularly  paid 
to  the  tenant  for  life  28/.  a  year  by  equal 
quarterly  payments  of  11.  each.  In  the  year 
1868  P.  passed  his  residuary  account,  showing 
no  assets  : — Held,  that  the  letter  of  January, 
1863,  and  the  quarterly  payments  regularly 
made  by  P.  both  before  and  after  writing  that 
letter,  were,  under  the  circumstances,  such  an 
admission  of  assets  as  to  make  his  estate  per- 
sonally liable.  Payne  v.  Tanner,  55  L.  J.,  Ch. 
611 ;  56  L.  T.  258 ;  34  W.  R.  714— North,  J. 


791 


EXECUTOR    AND    ADMINISTRATOR. 


792 


Mistake— Residuary  Aoeonnt — Declaration  of 
Trait.] — Admission  of  assets  is  merely  a  ques- 
tion of  evidence,  and  an  executor  may  bring 
evidence  to  show  that  his  admission  was  the 
result  of  a  mistake  in  the  account.  But  where 
an  executor  had  passed  his  residuary  account, 
stating  that  a  legacy  was  "  retained  in  trust " 
out  of  the  residue  : — Held,  that  he  was  not 
entitled  to  show  that  he  had  since  discovered 
that  the  account  had  proceeded  on  a  mistake, 
and  that  there  were  not  in  fact  assets  for  the 
legacy.  Brewster  v.  Prior,  55  L.  T.  771 ;  36 
W.  R.  251— Kekewich,  J. 


3.  DISTRIBUTION   OF  ASSETS, 
a.  Interest  on  Iiegaolas. 

Bate.] — A  testator,  by  his  will,  gave  certain 
legacies  payable  five  years  after  his  death  and 
interest  in  the  meantime  to  be  paid  on  them  at 
the  rate  of  3  per  cent,  half  yearly  : — Held,  that 
the  rate  of  interest  to  be  paid  was  6  per  cent, 
per  annum.  Booker,  In  re,  Booker  v.  Booker, 
54  L.  T.  239— Chitty,  J. 

Legacy  to  be  paid  within  Four  Years  after 
Testator's  Decease.] — A  testator  directed  that 
certain  legacies  given  by  his  will  should  be  paid 
within  four  years  after  his  decease.  The  execu- 
tors paid  some  of  the  legacies  within  one  year 
after  the  testator's  decease,  but  others  of  them 
remained  unpaid  by  reason  of  the  inability  of 
the  legatees,  being  infants,  to  give  receipts.  It 
was  not  necessary  for  the  convenient  adminis- 
tration of  the  estate  that  the  payment  of  any 
of  the  legacies  should  be  postponed  : — Held, 
that  the  unpaid  legacies  carried  interest  from  the 
expiration  of  one  year  after  the  testator's  death. 
Olive ,  In  re,  Olive  v.  Westerman,  53  L.  J.,  Ch. 
525  ;  50  L.  T.  355— Kay,  J. 

Reversionary  Interest  not  realised  at  once.] — 
Where  it  is  for  the  benefit  of  all  entitled  that  a 
reversionary  interest  should  not  be  realised  at 
once,  a  legatee,  whose  legacy  could  not  be  paid 
out  of  any  other  fund  than  this  reversion,  is 
entitled,  not  only  to  six  years'  interest,  but  to 
interest  from  the  expiration  of  one  year  from  the 
death  of  the  testatrix.  Blackford,  In  re,  Black- 
er d  v.  WorsUy,  27  Ch.  D.  676 ;  54  L.  J.,  Ch. 
215  ;  33  W.  R.  11— Pearson,  J. 

Contingent  deferred  Legacy.] — Where  a  con- 
tingent deferred  legacy  has  been  severed  from 
the  general  estate  of  the  testator,  such  severance 
will  not  entitle  the  legatee  to  interim  interest 
thereon  unless  the  severance  has  been  necessi- 
tated by  something  connected  with  the  legacy 
itself.  Judkin's  Trusts,  In  re,  25  Ch.  D.  743  ; 
53  L.  J.,  Ch.  496  ;  50  L.  T.  200  ;  32  W.  R.  407— 
Kay,  J. 

Release— Subsequent  Acquisition  of  Funds.]— 

A  testatrix  by  her  will  bequeathed  several  pecu- 
niary legacies  on  various  persons,  who,  on  the 
estates  proving  insufficient  to  pay  the  legacies  in 
full,  executed  a  deed  of  release  to  the  executors. 
One  of  the  legatees  afterwards  died,  and  her 
share,  by  the  terms  of  the  will,  formed  part  of 
the  residuary  estate,  which  was  now  sufficient  to 
pay  the  other  legacies  in  full : — Held,  that  the 
legatees  would  be  entitled  to  interest  on  the 
balances  at  the  rate  of  four  per  cent,  from  one 


year  after  the  testatrix's  death.    GKosfs  Trusts, 
In  re,  49  L.  T.  588— Kay,  J. 

Out  of  what  Fund  Payable.  1— The  testator 
bequeathed  the  lands  of  B.,  in  which  his  brother 
R.  and  his  sister  had  life  estates  by  title  para- 
mount, upon  trust  to  sell  after  the  death  of  his 
brother  and  sister,  and  out  of  the  proceeds  to 
pay,  among  other  legacies,  to  his  said  brother  B. 
the  sum  of  5,000/.  R.  died  in  the  testator's  life- 
time ;  and  by  a  codicil  the  testator  bequeathed 
the  5,000/.  to  R.'s  daughter  and  directed  that 
she  should  be  paid  the  legal  interest  thereon 
from  the  time  of  his  decease  till  the  said  sum  of 
5,000/.  be  paid  in  due  course  of  law  : — Held,  that 
interest  on  this  legacy  from  the  testator's  death 
was  properly  paid  by  the  executors  out  of  his 
residuary  personal  estate.  Greene  v.  Flood,  IB 
L.  R.,  Ir.  450— M.  R. 

b.  In  Other  Oaaee. 

Payments  made  in  Mistake — Liability  to 
refund  with  Interest.]— The  decision  in  &Ut- 
marsh  v.  Barrett  (31  Beav.  849),  that  executors 
who,  acting  bona  fide,  have  distributed  the  assets 
upon  what  turns  out  to  be  an  erroneous  construc- 
tion of  the  will,  are  not  liable  to  be  charged 
with  interest  upon  the  principal  sums  wrongly 
paid,  which  must  be  refunded  to  the  estate, 
dissented  from  as  departing  from  the  principle 
established  in  Attorney -General  v.  Kdkler  (9 
H.  L.  C.  654)  and  Attorney- General  v.  Alfori 
(4  D.  M.  &  G.)  843.  Ilulkes,  In  re.  PovxU  v. 
Ilulkes,  33  Ch.  D.  552 ;  55  L.  J.,  Ch.  846 ;  56 
L.  T.  209  ;  34  W.  R.  733  ;  35  W.  R.  194- 
Chitty,  J. 

Although  as  a  general  rule  executors  are  liable 
to  be  charged  with  interest  at  4  per  cent,  on  sums 
improperly  paid  or  improperly  retained  by  them, 
they  are  not  liable  for  interest  to  the  legatee  (or 
his  representatives)  to  whom,  with  full  know- 
ledge on  bis  part  and  in  common  mistake,  the 
payments  which  be  must  refund  have  thus  been 
erroneously  made.    lb. 

Preferential  Payment— Specialty  Debt]— The 
effect  of  Hinde  Palmer's  Act  being  to  place 
sample  contract  creditors  and  specialty  creditors 
on  an  equal  footing  in  the  administration  of  an 
estate,  an  executor  may.  in  exercise  of  his  right 
of  preference,  pay  a  simple  contract  creditor  in 
priority  to  a  specialty  creditor  of  his  testator. 
Orsmond,  In  re,  Drury  v.  Orrmvnd,  58  L.  T.  24 
— Kekewiok,  J. 

Unregistered    Judgment    Debt]  —  I* 

the  administration  of  an  estate  an  unregistered 
judgment  debt  has  no  priority  over  simple  con- 
tract debts.  IlUdge,  In  re,  Davidson  v.  Illiise, 
27  Ch.  D.  478  ;  53  L.  J.,  Ch.  990  ;  51  L.  T.  523 ; 
33  W.  R.  18— C.  A. 

Bight  of  Retainer  —  Heir-at-Law  —  Seal 
Estate.] — Where  real  estate  has  been  sold  by  the 
court  under  3  &  4  Will.  4,  c.  104,  the  heir-at-law 
or  devisee  has  no  right  to  retain  out  of  the  pro- 
ceeds the  amount  of  a  simple  contract  debt  dne 
to  himself.  Ferguson  v.  Gibson  (14  L.  R.,  Eq- 
379)  explained.    lb. 

There  is  nothing  in  Hinde  Palmer's  Act  to 
prevent  a  specialty  creditor,  where  the  heirs  are 
bound,  if  he  is  the  heir-at-law,  from  retaining 
the  amount  of  his  debt.    lb. — Per  Cotton,  L.  J. 


793 


EXECUTOR   AND    ADMINISTRATOR. 


794 


Insolvent  Estate  of  Deceased  Partner — Joint 
•id  Separate  Creditors  —  Surplus  Interest — 
Priority.] — Prior  to  1856  A.  carried  on  a  bank- 
ing business  in  partnership  with  B.  On  the  13th 
March,  1856,  A.  died.  Soon  afterwards  the  bank 
stopped  payment,  and  B.  was  adjudicated  bank- 
rupt. Several  actions  were  commenced  for  the 
administration  of  the  estate  of  A*  By  an  order 
made  in  the  year  1881  and  in  one  of  these  actions, 
it  was  declared  that  A.'s  separate  creditors  were 
entitled  to  be  paid  out  of  the  estate  in  priority 
to  his  joint  creditors  and  also  that  A.'s  separate 
creditors  whose  debts  by  law  or  special  contract 
carried  interest,  were  not  entitled  to  interest  in 
priority  to  the  joint  creditors  in  respect  of  the 
principal  dne  to  the  joint  creditors.  The  joint 
estate  of  the  banking  firm  down  to  A.'s  death, 
and  the  bank  assets  from  that  time  until  B.'s 
bankruptcy,  and  also  B.'s  separate  estate,  were 
administered  in  bankruptcy.  The  result  of  the 
actions  to  administer  A.'s  estate  was  that  divi- 
dends amounting  to  20*.  in  the  pound  were  paid 
to  both  the  separate  and  the  joint  creditors  of 
A.  on  the  principal  sums  due  to  them  respec- 
tively, and  that  a  surplus  remained  which  was 
sufficient  to  satisfy  all  the  interest  on  the  joint 
as  well  as  the  separate  debts : — Held,  that  the 
separate  creditors,  whether  their  debts  did  or  did 
not  by  law  carry  interest,  were  entitled  to  take 
their  interest  in  priority  to  the  joint  creditors. 
Held,  also,  that  the  dividends  received  ought  to 
be  accounted  for  in  ascertaining  the  amount  of 
interest  due,  in  manner  following,  viz.,  by  treating 
the  dividends  as  ordinary  payments  on  account 
and  applying  each  dividend  and  the  surplus  (if 
any) to  the  reduction  of  the  principal.  Wkitting- 
tUU  v.  Orover,  55  L.  T.  213  ;  36  W.  R.  4— 
Chitty.J. 

Devised  Seal  Estate— Liability  of  Devisee  on 
AHanatJon.]— The  liability,  under  the  Act  11 
Geo,  4  *  4  Will.  4,  c.  47,  of  the  devisee  of  land, 
who  alienates  the  land,  to  the  unpaid  debts  of  the 
testator,  is  such  that,  on  the  alienation,  the  debts 
become  his  own  debts  to  the  extent  of  the  value 
of  the  land  alienated.  Consequently,  when  a 
woman  to  whom  land  had  been  devised  settled 
it  on  her  marriage,  after  the  passing  of  the 
Married  Women's  Property  Act,  1870,  the  first 
trust  being  for  herself  absolutely  until  the 
marriage,  and,  after  its  solemnization,  on  trust 
for  herself  for  her  life,  without  power  of  antici- 
pation, with  remainder  on  trusts  for  the  issue  of 
the  marriage  : — Held,  that  the  testator's  personal 
estate  being  insufficient  to  pay  his  debts,  the  life 
interest  of  the  settlor  was,  notwithstanding  the 
restraint  on  anticipation,  liable  to  make  good  the 
deficiency,  to  the  extent  of  the  value  of  the 
devised  land  ;  her  liability  to  satisfy  the  debts 
of  the  testator,  which  arose  on  her  alienation  of 
the  land  bj  the  settlement,  being  a  debt  "  con- 
tracted by  her  before  marriage,1'  within  the 
■waning  of  s.  12  of  the  Married  Women's  Pro- 
perty Act,  1870,  Sanger  v.  Sanger,  (11  L.  R. 
Ko.  470)  and  London  and  Provincial  Bank  v. 
Bigle  (7  Ch.  D.  773)  followed.  Hedgely,  In  re, 
Small  v.  Hedgely,  34  Ch.  D.  379  ;  56  L.  J.,  Ch. 
360 ;  56  L.  T.  19  ;  35  W.  R.  472— North,  J. 

Bignt  of  Creditor  to  follow  Assets  into  hands 
sf  Legatees — Aequieseence.] — The  right  of  a 
creditor  whose  debt  has  not  been  provided  for 
to  follow  distributed  assets  into  the  hands  of 
being  an  equitable  right,  will  not  be 


exercisable  where  the  circumstances  of  the  case 
would  make  such  an  exercise  inequitable.  When, 
therefore,  the  mortgagee  of  a  farm,  upon  the 
death  of  his  mortgagor,  acquiesced  in  two  of  the 
residuary  legatees  taking  the  farm  and  working 
it,  and  in  the  distribution  of  the  personal  estate 
for  the  purpose  of  the  share  of  those  legatees 
being  expended  on  the  cultivation  of  the  farm, 
he  was  held  to  have  released  his  equitable  right 
to  fall  back  upon  the  personal  estate  of  his 
debtor,  the  mortgage  security  having  proved  in- 
sufficient. Blake  v.  Gale,  32  Ch.  D.  571  ;  55  L. 
J.,  Ch.  559  j  55  L.  T.  234  ;  34  W.  R.  555— C.  A. 

Payment  of  Legacy  de  bonis  propriis.] — 

If,  in  an  action  against  executors  for  a  legacy, 
the  executors  admit  assets  and  judgment  is  given 
for  payment  of  a  legacy  de  bonis  propriis : — 
Quaere,  whether  an  unpaid  creditor  can  call  upon 
the  legatee  to  refund  the  legacy.  Semble,  the 
creditor  could  recover  the  legacy  in  such  a  case 
if  it  was  in  fact  paid  out  of  the  testator's  assets, 
but  not  if  it  was  paid  by  the  executors  de  bonis 
propriis.  Brogden,  In  re.  Billing  v.  Brogden, 
38  Ch.  D.  646 ;  59  L.  T.  650 ;  37  W.  R.  84— 
C.A. 

Deceased  Domiciled  Abroad — Foreign  Cre- 
ditors.]— In  the  administration  of  the  English 
estate  of  a  deceased  domiciled  abroad,  foreign 
creditors  are  entitled  to  dividends  pari  passu 
with  English  creditors.  Klcsbe,  In  re,  Kann- 
reuther  v.  OeUelbrecht,  28  Ch.  D.  175  ;  54  L.  J., 
Ch.  297 ;  52  L.  T.  19  j  33  W.  R.  391— Pear- 
son, J. 

Settlement  giving  Charge  of  Debts  on  Specific 
Seal  and  Personal  Estate.] — A  testator,  by 
deed,  conveyed  and  assigned  certain  specified 
real  and  personal  estate  to  trustees  in  trust  for 
himself  for  life  ;  and,  after  his  death,  upon  trust 
to  sell  and  convert,  and  stand  possessed  of  the 
net  proceeds  on  trust  to  pay  all  the  debts  which 
should  be  due  from  him  ;  and,  after  such  pay- 
ments as  aforesaid,  on  trust  for  his  two  sons. 
The  testator,  by  his  will,  after  reciting  the  deed, 
devised  and  bequeathed  all  the  residue  of  his 
real  and  personal  estate,  not  comprised  in  and 
subject  to  the  trusts  of  the  deed,  to  his  wife  for 
life,  with  remainders  over  : — Held,  first,  that  the 
personal  estate  comprised  in  the  deed  was  the 
primary  fund  for  payment  of  debts  ;  secondly, 
that  the  real  estate  comprised  in  the  deed,  though 
charged  with  payment  of  all  debts,  was  not  liable 
to  exonerate  the  general  personal  estate.  French 
v.  Chichester  (2  Vera.  568  ;  3  Bro.  P.  C.  2nd  ed. 
p.  16)  discussed  and  explained.  Trott  v.  Bucha- 
nan, 28  Ch.  D.  446  ;  64  L.  J..  Ch.  678  ;  52  L.  T. 
248  ;  83  W.  R.  339— Pearson,  J. 

Mortgage  —  Arrears  —  Deficient  Security  — 
Tenant  for  Life  and  Somaindermen.] — A  testa- 
tor bequeathed  his  residuary  personal  estate  to 
trustees  upon  trust  for  successive  tenants  for 
life  with  remainders  to  his  nephews  and  nieces 
and  their  children  absolutely.  After  his  death 
his  trustees  invested  8,000/.,  part  of  his  residuary 
personal  estate,  on  mortgage.  For  some  time 
the  interest  was  regularly  paid,  but  afterwards 
fell  into  arrear.  After  a  time  the  mortgaged 
property  was  sold  and  realised  only  7,900/.  At 
the  time  of  the  sale  the  arrears  of  interest 
amounted  to  5362. : — Held,  that  the  tenants  for 
life  were  not  entitled  to  receive  compound  inter- 


795 


EXECUTOR   AND    ADMINISTRATOR. 


796 


est  oat  of  the  fund,  and  that  the  fund  must  be  j 
apportioned  between  the  tenants  for  life  and 
remaindermen  in  the  proportion  which  the 
arrears  of  interest  bore  to  the  original  principal 
sum.  Moore,  In  re,  Moore  v.  Johnson,  33  W.  B. 
447 — Pearson,  J. 

Annuity — Tenant  for  Life— Remainderman— 
Corpus  or  Income.] — A  testator  purchased  here- 
ditaments in  consideration  of  the  payment  by 
him  of  an  annuity  secured  by  his  covenant,  and 
a  charge  upon  the  hereditaments  purchased. 
Upon  the  death  of  the  testator  certain  persons 
became  under  his  will  entitled  to  his  real  and 
personal  estate  for  life,  with  remainders  over  to 
other  persous : — Held,  that  the  annuity  ought  to 
be  capitalized  and  paid  out  of  the  corpus  of  the 
testator's  estate,  and  that  past  and  future  pay- 
ments of  the  annuity  ought  to  be  adjusted  on 
that  footing  as  between  the  tenants  for  life  and 
the  remaindermen.  Muffett,  In  re,  Jones  v. 
Mason,  39  Ch.  D.  634  ;  57  L.  J.,  Ch.  1017  ;  59 
L.  T.  499 ;  37  W.  R.  9— Chitty,  J. 

Intestacy — Hotchpot] — A  testator  bequeathed 
all  the  residue  of  his  property  to  his  wife,  whom 
he  appointed  sole  executrix.  She  predeceased 
the  testator.  One  of  the  testator's  daughters 
had  received,  on  the  occasion  of  her  marriage,  a 
sum  of  700/. ;  she  also  died  in  the  lifetime  of  her 
father,  leaving  two  children : — Held,  that  the 
Statute  of  Distributions  applied,  and  the  sum 
advanced  to  the  daughter  must  be  brought  into 
hotchpot  Harte  v.  Meredith,  13  L.  R.,  Ir.  341 
— V.-C. 

Personal  Estate  —  Hext-of-Xin  —  Grand- 
children— Per  Stirpes  or  per  Capita.] — A  share 
of  the  residuary  estate  of  a  testatrix  (a  widow), 
which  she  had  given  by  her  will,  lapsed.  She 
had  had  only  two  children,  a  son  and  a  daughter, 
both  of  whom  died  before  her.  Three  children 
of  the  son,  and  one  child  of  the  daughter, 
survived  the  testatrix : — Held,  that,  under  the 
Statute  of  Distributions,  the  four  grandchildren 
took  the  lapsed  share,  so  far  as  it  arose  from 
personal  estate,  per  stirpes  not  per  capita. 
Under  the  Statute  of  Distributions  the  division 
of  personal  estate  among  descendant*  of  an  in- 
testate is  always  to  be  per  stirpes.  Natt,  In  re, 
Walker  v.  Gammage,  37  Ch.  D.  517  ;  57  L.  J., 
Ch.  797  ;  58  L.  T.  722  ;  36  W.  R.  548  -North,  J. 

The  term  "next  of  kindred,"  in  s.  7  of  the 
statute,  does  not  include  the  issue  of  children  of 
the  intestate,  but  children  and  their  descendants 
are  all  included  under  the  term  "children," 
which  means  children  living  at  the  death  of  the 
intestate  either  themselves  or  their  descendants. 
Loekyer  v.  Vade  (Barnardiston,  Ch.  444)  followed. 
lb. 

Partial  Intestacy — Order  of  Application  of 

Assets.] — A  married  woman  having  separate 
personal  estate,  and  also  a  general  power  to  ap- 
point personal  estate  by  will,  bequeathed  and 
appointed  (after  legacies)  all  her  property  to  her 
executors  on  trust  for  payment  of  her  debts,  and 
funeral  and  testamentary  expenses,  and  certain 
legacies,  and  then  in  trust  for  persons  named. 
She  survived  her  husband,  and  after  his  death 
became  entitled  to  other  personal  estate,  and  died 
without  re-publishing  her  will : — Held,  that  the 
separate  personal  property  and  the  personal  estate 
accruing  after  the  coverture  must  contribute 


rateably,  and  before  the  appointed  estate,  to  the 
payment  of  the  funeral  and  testamentary  ex- 
penses, and  any  debts  contracted  by  the  testa- 
trix after  the  coverture.  Williams,  In  re,  Green 
v.  Burgess,  59  L.  T.  310— Kekewich,  J. 

Costs  of  ascertaining  Parties  Entitled— Sen- 
duary  Estate.  I — A  testator  bequeathed  his  resi- 
duary personal  estate  amongst  six  persons  equally. 
Three  of  the  residuary  legatees  predeceased  the 
testator,  and  their  shares  lapsed: — Held,  that 
the  costs  of  ascertaining  the  next-of-kin  of  the 
testator  entitled  to  the  lapsed  shares  ought  to  be 
paid  out  of  the  general  residuary  estate  aud  not 
out  of  the  lapsed  shares.  Giles,  In  re,  55  L.  J., 
Ch.  695  ;  65  L.  T.  51  ;  34  W.  R.  712— Kay,  J. 

A  testator  bequeathed  certain  legacies  to  the 
children  of  A. ;  A.  had  no  legitimate  but  three 
illegitimate  children,  who  claimed  the  legacies, 
the  executors  took  out  an  originating  summons 
to  have  the  question  decided  : — Held,  that  the 
costs  of  the  proceedings  must  be  borne  by  the 
residuary  estate.  Haseldine,  In  re,  Grange  v. 
Sturdy,  31  Ch.  D.  511 ;  54  L.  T.  322  ;  34  W.  K 
327  ;  50  J.  P.  390— C.  A. 


Payment  into  Court.] — Executors  by 


payment  into  court  under  the  Trustee  Relief  Act 
of  a  sum  of  money  bequeathed  to  a  class,  or  by 
any  other  severance  of  the  legacy,  cannot  relieve 
the  residue  in  their  hands  from  bearing  the  costs 
of  and  incident  to  an  enquiry  for  the  purpose  of 
ascertaining  who  are  the  persons  entitled  to  take. 
Trick's  Trusts,  In  re  (5  L.  R.,  Ch.  170)  and 
Birkett,  In  re  (9  Ch.  D.  576)  followed.  Gibbons, 
In  re.  36  Ch.  D.  486 ;  56  L.  J.,  Ch.  911  ;  58  L.T. 
8  ;  36  W.  R.  180— Chitty,  J. 


IV.    EXECUTOR  DE  SON  TORT. 

Liability  for  Rent.]— See  Fielding  v.  Cronin, 
ante,  coL  787. 

Proceedings  against  Executors  of — Estoppel] 
— See  Unnis  v.  Rochford,  ante,  coL  789. 

Appointment  of  Receiver  by  Co-executor.]— 

See  Moore,  In  goods  of,  infra,  col.  798. 


V.    PROCEEDINGS  BT  AJTD  AGAIHST. 

Ejectment— Lease  by  Administratrix — Ad- 
ministrator de  bonis  non.]— An  administratrix 
made  a  lease,  in  1854,  of  premises  forming  a  por- 
tion of  the  intestate's  assets,  for  a  term  of 
twenty-one  years.  The  lease  did  not  purport  to 
be  made  by  her  in  her  representative  capacity. 
The  lessee  admittedly  went  into  possession 
under  the  lease,  but  never  paid  any  rent.  He 
continued  in  possession  until  1883,  when  the 
administrator  de  bonis  non  of  the  intestate 
brought  an  ejectment  for  non-payment  of  rent. 
The  jury  having  found  that  the  defendant  had 
continued  in  possession  on  the  terms  of  the 
lease: — Held,  that  the  plaintiff  (the  adminis- 
trator de  bonis  non)  was  entitled  to  a  verdict 
for  possession  and  arrears  of  rent.  Doyle  v. 
Maguire,  14  L.  R.,  Ir.  24— C.  P.  D. 

Agreement  to  Compromise  Action  —  Subse- 
quent  Death  of  Plaintiff  Intestate— Adoption 


797 


EXECUTOR    AND    ADMINISTRATOR. 


798 


hy  Administrator.] — The  plaintiff  in  an  action 
having,  at  the  instance  of  the  defendant,  con- 
sented to  a  compromise  of  the  action,  the  plain- 
tiffs  solicitors  suggested  that  the  defendant 
should  make  an  offer  of  a  money  payment  in 
satisfaction  of  the  plaintiff's  interest  in  certain 
property  which  was  the  subject  of  the  action. 
The  defendant's  solicitors  asked  the  plaintiff  to 
name  a  sum  which  he  would  accept.  A  few 
days  later  the  plaintiff  died  intestate.  His 
daughter  thereupon  instructed  the  plaintiff's 
solicitors  to  agree  to  a  compromise  of  the  action 
on  payment  by  the  defendant  of  500/.  The 
defendant's  solicitors  replied  that  the  defendant 
would  pay  4501.  in  discharge  of  all  claims.  This 
offer  was  accepted  by  the  plaintiffs  daughter. 
It  was  then  arranged  that  a  summons  should  be 
taken  out  by  consent,  staying  all  further  pro- 
ceedings in  tie  action  on  the  terms  agreed  upon. 
Shortly  afterwards  the  defendant's  solicitors 
stated  that,  the  defendant  haying  discovered  the 
property  to  be  less  valuable  than  he  originally 
oeliered,  it  was  impossible  for  him  to  pay  450/. 
The  plaintiff's  solicitors  declined,  however,  to 
Tary  the  terms  of  the  compromise.  Letters  of 
administration  to  the  plaintiff's  estate  were  sub- 
sequently granted  to  his  daughter,  and  an  order 
was  made  that  the  proceedings  in  the  action 
should  be  carried  on  by  her  as  plaintiff.  A 
summons  was  then  taken  out,  on  behalf  of  the 
plaintiff,  to  stay  all  further  proceedings  in  the 
action  on  the  terms  agreed  upon.  The  defendant 
refused  to  consent  to  such  summons : — Held,  that 
the  administration  related  back  to  the  date  of 
the  death  of  the  plaintiff  intestate,  and  the 
plaintiff's  daughter  was  entitled  to  enforce  the 
agreement  to  compromise  the  action,  although 
the  same  had  been  entered  into  before  the  grant 
of  administration ;  that  the  evidence  did  not 
show  that  there  had  been  any  repudiation  of 
such  agreement;  and  that  therefore  the  order 
asked  for  by  the  summons  must  be  made.  Baker 
? .  Baker,  55  L.  T.  723— Kay,  J. 


Option  to  Purchase,  Personal  to  Testator— 
lot  Transmissible  to  Executors.]  — A  testator 
devised  and  bequeathed  certain  real  and  per- 
sonal property,  including  an  hotel,  to  trustees 
upon  trust  to  pay  out  of  the  rents,  issues,  and 
income  thereof,  annuities  to  his  widow  and 
sister,  and  during  their  lives  and  the  life  of  the 
survivor  to  divide  the  residue  of  the  rents, 
issues,  and  income  equally  between  his  four 
children  ;  and  after  the  decease  of  the  survivor 
of  his  wife  and  sister  he  declared  that  his  son 
should  have  the  option  of  purchasing  the  hotel 
at  the  price  of  10,000/.,  such  sum  to  fall  into 
testators  residuary  personal  estate;  but  if  the 
son  should  decline  to  purchase  the  hotel  at  that 
price  within  six  months  after  the  decease  of  the 
survivor  of  the  testator's  wife  and  sister,  he 
directed  that  his  trustees  should  sell  the  hotel, 
sad  that  the  moneys  arising  from  the  sale 
thereof  should  fall  into  his  residuary  personal 
estate.  The  son  died  very  soon  after  his  father, 
the  testator,  also  leaving  a  will  whereby  he  ap- 
pointed executors.  The  testator's  wife  and  sister 
wing  also  dead : — Held,  that  the  option  to  pur- 
chase the  hotel  was  a  right  personal  to  the  son, 
tad  could  not  be  exercised  after  his  death  by  his 
executors.  Cousins,  In  re,  Alexander  v.  Cross, 
30  Ch.  D.  20*— C.  A. 


Actions    of   Tort  —  When  Cause   of  Action 
survives.]— See  Practice  (Parties). 

Joinder  of  Parties — Loan  by  one  Executor — 
Foreclosure  Action  by  the  Other.]  —  One  of 

two  executors  lent  money  belonging  to  his  tes- 
tator's estate,  on  the  security  of  a  charge  on 
real  estate,  and  subsequently  became  bankrupt 
and  absconded  out  of  the  jurisdiction,  and  it 
was  not  known  where  he  was.  His  co-executor 
brought  a  foreclosure  action  against  the  bor- 
rower, alleging  that  he  had  borrowed  the  money 
knowing  that  it  belonged  to  the  estate,  and  that 
with  that  knowledge  he  had  given  the  charge  to 
the  solicitors  to  the  estate,  one  of  whom  was  the 
absconding  executor,  and  both  of  whom  had  left 
the  country  together.  The  absconding  executor 
was  not  made  a  party : — Held,  that  the  action 
was  not  bad  for  non-joinder  of  the  absconding 
executor.  Drage  v.  Ifartopp,  28  Ch.  D.  414  ;  54 
L.  J.,  Ch.  484  ;  51  L.  T.  902  ;  33  W.  R.  410— 
Pearson,  J. 


Forgery  of  Transfer  of  Stock  by  One — 


Action  by  Other  Co-Executor.] — See  Barton  v. 
North  Staffordshire  Railway,  ante,  col.  778. 

Executor  intermeddling  before  Probate— Be- 
ceiver — Application  by  Co-Executor.] — Where 
an  executor  had,  before  probate,  and  without 
the  assent  of  his  co-executor,  intermeddled  in 
the  estate  and  made  preparations  to  dispose  of  a 
portion  of  it,  the  court  gave  leave  to  the  co- 
executor  to  issue  a  writ  against  him  claiming  an 
injunction  to  restrain  him  from  dealing  with  the 
estate  before  probate,  and  praying  for  the  ap- 
pointment of  a  receiver.  Moore,  In  goods  of,l& 
P.  D.  36  ;  57  L.  J.,  P.  37  ;  58  L.  T.  386  ;  36  W. 
R.  576  ;  52  J.  P.  200— Hannen,  P. 

Probate  not  Obtained  —  Death  of  Plaintiff 
before  Trial.] — Where,  after  an  order  directing 
the  trial  of  issues  of  fact  before  a  jury,  one  of 
the  plaintiffs  died  within  fourteen  days  of  the 
date  fixed  for  the  trial,  on  the  application  of  his 
executors,  undertaking  to  apply  forthwith  for 
probate,  and  to  produce  the  same  at  the  trial  of 
the  action  if  obtained,  the  court  made  an  order 
continuing  the  proceedings.  Hughes  v.  West, 
13  L.  R„  Ir.  224— V.-C. 

Staying  Action.]— A  bill  of  exchange  had 

been  indorsed  by  a  testatrix,  who  was  the  holder 
thereof,  and  paid  into  her  bankers  for  collection 
in  the  usual  course  of  business.  Before  the  bill 
became  due  the  testatrix  died,  and  when  it  be- 
came due  the  plaintiffs,  as  her  executors,  de- 
manded the  return  of  the  bill,  or  its  value.  The 
bankers  refused  to  deliver  up  the  bill,  on  the 
ground  that  the  plaintiffs  had  not  taken  out  pro- 
bate, but  said  they  were  ready  and  willing  to 
give  up  the  bill  to  the  plaintiffs  on  their  pro- 
duction of  probate.  Whereupon  the  plaintiffs, 
before  taking  out  probate,  began  an  action  against 
the  bankers  for  delivery  up  of  the  bill,  or  its 
value,  and  for  damages  for  its  detention  : — Held, 
that  all  proceedings  in  the  action  should  be  stayed 
as  frivolous  and  vexatious,  until  the  plaintiffs 
took  out  probate.  Tarn  v.  Commercial  Banking 
Company  of  Sydmy,  12  Q.  B.  D.  294  ;  50  L.  T. 
365  ;  32  W.  R.  492— D. 


Petition  to  Wind  up  by  Executor.]— The 

executor  of  a  creditor  of  a  company  is  entitled 


799 


EXECUTOR    AND    ADMINISTRATOR. 


800 


to  present  a  winding-up  petition  before  he  has 
obtained  probate ;  it  is  sufficient  if  he  has 
obtained  probate  before  the  hearing  of  the 
petition.  Masonic  and  General  Life  Assurance 
Company,  In  re,  32  Ch.  D.  373 ;  55  L.  J..  Ch. 
666  ;  34  W.  R.  739— Pearson,  J. 

Administrator  against  Legatee  for  8am  paid 
by  Executor  before  Revocation  of  Probate.] — 
P.  D.,  by  an  alleged  will,  bequeathed  90J.  to 
L.,  for  the  purpose  of  being  applied  towards 
building  a  chapel,  and  appointed  C.  executor, 
who  obtained  probate.  After  the  grant  of  pro- 
bate, C.  paid  to  L.  the  amoant  oi  the  legacy, 
which  was  applied  by  L.  in  accordance  with  the 
terms  of  the  will.  Subsequently  a  suit  was  in- 
stituted by  M.  D.  against  C,  in  the  Probate 
Division,  for  revocation  of  probate.  A  consent 
was  entered  into  between  M.  D.  and  C.  in  that 
suit,  by  which  it  was  agreed  that  the  will  should 
be  condemned,  and  that  administration  of  P.  D.'s 
estate  should  be  granted  to  M.  D.  The  consent 
provided  for  the  application  of  certain  moneys, 
and  that  C.  "  should  have  credit  for  all  moneys 
properly  expended,  and  also  a  sum  of  100/.  and 
202.  paid  respectively  to  L.  for  masses,  without 
prejudice  to  any  claim  and  his  costs."  In  an 
action  brought  by  M.  D.,  as  administratrix  of 
P.  D.,  to  recover  from  L.  the  90Z.  which  had 
been  so  paid  to  him  : — Held,  that  having  by  the 
consent  released  the  executor,  she  could  not  re- 
cover from  the  legatee.  Duane  v.  Lee,  14  L.  R., 
Ir.  56— Q.  B.  D. 

Detention  of  Testator's  Goods — Counterclaim.] 

— In  an  action  by  an  executor  for  the  detention 
of  goods  of  his  testator  taken  possession  of  after 
the  testator's  death,  the  defendant  may  counter- 
claim for  the  funeral  expenses  of  the  testator 
paid  by  him,  and  also  for  a  debt  due  to  him  from 
the  testator  before  his  death.  Watkin  v.  New- 
comen,  1  C.  &  E.  113— Day,  J. 

Defence  of  plene  Administravit — Interroga- 
tories. 1 — In  an  action  against  a  surviving  trus- 
tee and  the  executors  of  a  deceased  trustee  for 
alleged  breaches  of  trust,  the  executors  pleaded 
plene  administravit,  and  the  plaintiffs  having 
thereupon  administered  interrogatories,  seeking 
for  particulars  of  their  testator  s  real  and  per- 
sonal estate,  and  their  administration  of  it,  the 
executors'  answer  was  merely  a  repetition  of 
their  defence : — Held,  insufficient,  and  that  the 
plaintiffs  were  entitled  to  a  further  and  more 
specific  answer.  St.  George  v.  St.  George ,  19 
L.  R.,  Ir.  225— M.  R. 

Judgment  against  future  Assets,  quando 
Aeeiderint.] — In  an  action  against  an  adminis- 
tratrix, commenced  by  a  specially  indorsed  writ, 
the  defendant  showed  that  she  was  entitled  to 
plead  plene  administravit,  but  did  not  dispute 
that  there  were  outstanding  assets  of  the  de- 
ceased. Leave  was  given  to  mark  judgment  of 
assets  quando  aeeiderint.  Form  of  order.  Find- 
later  v.  Tuohy,  16  L.  R.,  Ir.  474— Ex.  D. 

Aotion  against  Deceased — Death  before  Service 
—Fresh  Action  against  Executors — Statute  of 
Limitations,  j — A  writ  was  issued,  but  before  it 
was  served  the  defendant  died.  Within  a  year 
from  the  proof  of  the  will  by  the  executors  of 
the  deceased,  a  fresh  writ  was  issued  against 
them  for  the  same  cause  of   action.    In  the 


meanwhile  the  period  of  statutory  limitation 
bad  expired  : — Held,  that  the  executors  could 
not  rely  on  the  Statute  of  Limitations  as  a 
defence  to  the  action.  Swindell  v.  Bulkdey,  18 
Q.  B.  D.  250 ;  56  L.  J.,  Q.  B.  613  ;  56  L.  T.  38 ; 
35  W.  R.  189— C.  A. 

Decree  against  Executors  to  Account— 
Amendment.] — After  the  ordinary  decree  in  a 
suit  against  trustees,  agents,  or  executors,  in 
which  wilful  default  has  not  been  charged  or 
proved,  the  court  will  not  give  leave  to  amend 
or  bring  a  supplemental  action  charging  such 
default,  where  the  plaintiff  had  knowledge,  or 
the  means  of  knowledge,  of  the  circumstances 
on  which  he  proposed  to  rely,  as  acts  of  wilful 
default.  Blount  v.  O'Connor,  17  L.  R.,  Ir.  620 
— M.  R. 

Costs— liability  for— Denial  of  Caw  rf 
Aotion — Plene  Administravit  Prater.]— Where 
an  executor  is  sued  in  respect  of  a  claim  against 
his  testator's  estate  for  damages  for  misrepre- 
sentation and  breach  of  warranty,  and  denies 
the  cause  of  action,  at  the  same  time  pleading 
plene  administravit  pneter,  he  is  liable  for  costs 
de  bonis  propriis,  if  he  fail  upon  the  general 
issue,  notwithstanding  that  he  succeeds  upon 
the  plea  of  plene  administravit  prater. 
Squire  v.  Amison,  48  J.  P.  758  ;  1  C.  fc  R.  365 
—Grove,  J. 

Security  for  Coats  of  Appeal — Set-oft]— In  an 
administration  action  P.  was  found  to  be  heir- 
at-law.  K.,  who  claimed  to  be  heir,  appealed 
against  this  decision.  P.  then  died,  ana  K.  re- 
vived against  H.,  his  executor  and  devisee  in  trust. 
H.  applied  for  security  for  the  costs  of  the  appeal 
on  the  ground  of  K.'s  proved  insolvency.  &  re- 
sisted on  the  ground  that  P.  had  been  ordered  to 
pay  to  him  the  costs  of  a  previous  appeal,  which 
were  of  sufficient  amount  to  be  a  security:— 
Held,  that  if  P.  had  been  the  respondent  this 
would  have  been  a  sufficient  answer,  but  that  H. 
being  only  a  representative  was  entitled  to  be 
indemnified,  and  that  security  must  be  siren. 
Knight,  In  re,  Knight  v.  Gardner,  38  Ch.  D. 
108  ;  68  L.  T.  699— C.  A. 


VI.  ADMTRISTRATIOir    ACTI0F8. 
1.  ORDBR  WHEN  MADE— JURISDICTION. 

Diseretion— Direction  by  Testator  that  Bxew- 
tors  shall  commence  Administration  Action.]— 
A  direction  by  a  testator  that  his  executors  shall 
take  proceedings  to  have  his  estate  administered 
by  the  court,  does  not  deprive  the  court  of  its 
discretion  to  refuse  to  make  an  order  for  ad- 
ministration ;  but  weight  ought  to  be  given  to 
such  a  direction  in  considering  whether  the 
order  shall  be  made.  Where  such  a  direction 
had  been  given,  an  order  was  made  in  chambers, 
on  the  application  of  one  of  the  executors,  more 
than  a  year  after  the  death  of  the  testator, 
declaring  that  the  estate  ought  to  be  admi- 
nistered by  the  court,  and  directing  an  inquiry 
of  what  the  estate  then  consisted.  The  de- 
fendants (the  other  executor  and  a  party  benefi- 
cially interested)  moved  to  discharge  this  order, 
on  the  ground  that  an  order  for  sSministration 
was  unnecessary  and  would  cause  great  and 
useless  expense.    North,  J.,  refused  to  discharge 


801 


EXECUTOR   AND    ADMINISTRATOR. 


802 


the  order,  and  his  decision  was  affirmed  by  the 
Court  of  Appeal,  who  expressed  their  approval 
of  the  limited  form  in  which  the  order  was 
nude.  Stocken.  In  re,  J  one*  v.  Hawkins,  38 
Ch.  D.  319;  67  L.  J.,  Oh.  746  ;  69  L.  T.  425— 
C.A. 

County  Court.] — A  person  interested  in 

the  estate  of  a  deceased  person  is  not  entitled  as 
of  right  to  an  administration  order  in  a  county 
court,  the  combined  effect  of  Ord.  VI.  r.  6,  and 
Old.  XXII.  r.  11,  of  the  Count y  Court  Rules, 
1886,  being  to  place  the  granting  of  such  order 
within  the  discretion  of  the  county  court  judge. 
Ptarson  v.  Pearson,  56  L.  T.  446— D. 

Jurisdiction — 8cotch  Assets — Testator  domi- 
ciltd  in   Scotland.] — A  testator  domiciled  in 
Scotland,  and  possessed  of  a  large  personal  and 
some  heritable  property  in  Scotland,  and  of  a 
comparatively  small  personal  property  in  Eng- 
land, by  will  made  in  Scotch  form  appointed 
several  persons  to  be  executors  and  trustees, 
some  of  whom  resided  in  England  and  some  in 
Scotland.    The  trustees  obtained  a  confirmation 
of  the  will  in  Scotland,  and  the  confirmation 
was  sealed  by  the  English  Court  of  Probate 
under  21  &  22  Vict.  c.  66.    An  infant  legatee, 
resident  in  England,  brought  by  his  next  friend 
an  action  here  to  administer  the  estate,  and  the 
writ  was  served  upon  some  of  the  trustees  in 
England,  and,  under  an  order,  upon  the  Scotch 
trustees  in  Scotland.     The  trustees  appeared 
without  protest,  and  took  no  steps  to  discharge 
the  order,  but  obtained  an  order  of  reference  to 
inquire  whether  the  further  prosecution  of  the 
action  would  be  for  the  benefit  of  the  infant 
plaintiff ;   upon  which  an  order  (not  appealed 
from)  was  made  for  the  further  prosecution  of 
the  action.    The  trustees  removed  all  the  English 
personalty  into  Scotland  before  the  action  came 
on  for  trial : — Held,  that  the  English  court  had 
jurisdiction  to  administer  the  trusts  of  the  will 
as  to  the  whole  estate,  both  Scotch  and  English ; 
and  that  as  no  proceedings  were  pending  in  a 
Scotch  court  (if  such  were  possible)  by  which 
the  interests  of  the  infant  plaintiff  could  have 
been  equally  protected,  the  jurisdiction  was  not 
discretionary,  but  that  the  decree  was  a  matter 
of  course.    The   dicta   of   Lord  Westbury  in 
Enoiin  v.  Wylie  (10  H.  L.  C.  1)  disapproved. 
Bering  ▼.  Orr-Ihmng,  9  App.  Cas.  34  ;  53  L.  J., 
Ch.  435  ;  60  L.  T.  401 ;  32  W.  R.  573— H.  L.  (E.). 
See  also  INTERNATIONAL  Law,  IV. 

Bate  of  1888— Fending  Proceedings.] -An 
■dministration  action  was  commenced  in  Decem- 
ber, 1882,  by  an  executrix  and  beneficiary. 
Pleadings  were  delivered,  from  which  it  ap- 
peared that  there  were  several  questions  between 
the  parties  ;  bat  it  was  ultimately  arranged  that 
*  general  administration  decree  should  be  taken, 
upon  admissions  in  the  defence,  according  to 
•greed  minutes,  and  notice  of  trial  was  given  on 
2nd  October,  1883.  Upon  the  case  coming  on 
«  a  short  cause  upon  motion  for  judgment, 
North,  J.T  refnsed  to  make  the  proposed  decree 
in  face  of  the  provisions  of  Ord.  L  V.  r.  10,  of  the 
nUes  of  1883,  merely  because  the  action  had 
been  commenced  before  they  came  into  opera- 
tion, and  be  directed  a  reference  to  chambers  to 
inquire  whether,  under  the  circumstances  of  the 
case,  a  general  administration  of  the  testator's 
«*1  and  personal  estate  should   be   ordered.  I 


Lleioellyn,  In  re,  Lane  v.  Lane,  26  Ch.  D.  66  ; 
53  L.  J.,  Ch.  602 ;  49  L.  T.  399  ;  32  W.  R.  287-? 
North,  J.  ' 


Limited  Accounts  and  Inquiries — Infant 


Plaintiff.] — A  party  interested  in  the  estate  of  a 
deceased  person,  even  though  that  party  be  an 
infant,  is  not  entitled,  as  a  matter  of  course,  to 
an  administration  judgment  at  the  expense  of 
the  estate.  Having  regard  to  Rules  of  Supreme 
Court,  1883,  Ord.  LV.  r.  10,  a  party  interested  is 
only  entitled  to  an  administration  judgment 
where  there  are  questions  which  cannot  be  pro* 
perly  determined  except  by  an  administration 
action ;  but  the  court  has  power  under  that 
rule  to  order  a  limited  administration  only,  that 
is,  to  direct  particular  accounts  and  inquiries,  if 
it  sees  that  the  question  can  thus  be  properly 
determined,  the  object  of  the  rule  being  to  pre- 
vent general  administration  except  in  cases  of 
necessity.  Wilton,  In  re  (infra),  considered. 
Blake,  In  re,  Jones  v.  Blake,  29  Ch.  D.  918  ;  64 
L.  J.,  Ch.  880  ;  53  L.  T.  302  ;  33  W.  R.  886— C,  A. 
Infants  were  entitled  under  a  will  to  legacies 
amounting  together  to  35,0002.,  and  they  were 
also  together  entitled,  in  remainder,  subject  to 
the  life  interests  therein  of  four  persons,  to  seven 
elevenths  of  the  residuary  estate.  An  originating 
summons  was  taken  out  under  Ord.  LV.  r.  4,  by 
one  of  the  tenants  for  life  and  the  infants,  asking 
for  the  administration  of  the  testator's  estate. 
The  summons  was  supported  by  one  of  the 
trustees,  but  was  opposed  by  the  other  trustees 
and  all  the  beneficiaries  other  than  the  plaintiffs : 
— Held,  that,  notwithstanding  the  discretion 
given  to  the  court  by  Ord.  LV.  r.  10,  the  infants 
were  entitled  to  an  order  for  administration,  but 
that  the  court  had  power  to  direct  only  such 
accounts  and  inquiries  to  be  taken  and  made  as 
were  absolutely  necessary  for  their  protection. 
Wilson,  In  re,  Alexander  v.  Calder,  28  Ch.  D. 
457  ;  64  L.  J.,  Ch.  487  ;  33  W.  R.  579— Pearson,  J. 

Statutory  Bar—"  Dying  Intestate  "— •"  Pre- 
sent Right  to  Receive."] — The  operation  of 
23  &  24  Vict.  c.  38,  s.  13,  is  retrospective,  so  thai 
the  limitation  of  twenty  years  "next  after  a 
present  right  to  receive  the  same  shall  have 
accrued  "  thereby  imposed  (in  analogy  to  3  &  4 
Will.  4,  c.  27,  s.  40)  upon  claims  to  recover 
personal  estate  of  "  any  person  dying  intestate, 
possessed  by  the  legal  personal  representative  of 
such  intestate,"  is  not  confined  to  the  case  of 
persons  dying  intestate  after  the  31st  December, 
1860,  the  time  fixed  by  the  section  for  com-; 
mencement  of  the  operation  of  the  enactment. 
Accordingly,  a  claim  by  next  of  kin  for  general 
administration  of  the  estate  of  an  intestate  who 
died  in  1848  was  barred  at  the  end  of  twenty-one 
years  from  that  date  ;  and  leave  to  revive  an 
administration  suit  relating  to  the  same  estate 
in  which  no  proceeding  had  been  taken  since  the 
decree  in  1855  was  refused.  But  with  respect 
to  assets  of  the  intestate  not  received  by  the 
administrator  until  1870  (more  than  twenty 
years  after  the  death,  and  within  twenty  years 
before  the  issue  of  the  writ)  the  claim  of  the 
next  of  kin  to  administration,  limited  to  such 
assets,  was  not  barred ;  there  being  no  "  present 
right  to  receive  "  on  the  part  of  the  next  of  kin 
until  the  assets  had  been  actually  recovered  by 
the  administrator.  Johnson,  In  re,  Sly  v.  Blake  r 
29  Ch.  D.  964  ;  62  L.  T.  682  ;  33  W.  R.  502-< 

Chitty,  J. '  .*,«■•," 

I)  D  ' 


1 


808 


EXECUTOR    AND    ADMINISTRATOR. 


804 


Part  Payment,]— Part  payment  by  the 

administrator  out  of  a  particular  asset  which  has 
bo  fallen  in  will  not  revive  the  right  to  sue  for 
general  administration  which  was  at  the  time  of 
payment  barred  by  statute.    lb. 


2.    PARTIES. 

Creditors,  who  are— Liability  arising  from 
foreign  Law.]— Estates  in  a  foreign  country 
were  the  subject  of  certain  settlements  called 
fidei  commies,  somewhat  analogous  to  entails  in 
England,  and  by  the  law  of  the  foreign  country 
the  possessor  of  these  estates  was  liable  for  de- 
terioration whether  voluntary  or  permissive,  and 
entitled  to  compensation  for  improvements; 
and  after  his  death  the  liability  could  be  enforced 
in  accordance  with  a  special  procedure  code  as 
between  his  representatives  and  his  successor. 
The  successor  to  the  estates  brought  an  action  in 
England  against  the  executrix  of  the  late  pos- 
sessor, who  was  a  domiciled  Englishman  and  left 
property  in  England,  for  administration  of  his 
estates : — Held,  that  the  plaintiff's  claim  did  not 
depend  simply  on  tort,  but  was  dependent  on  an 
implied  contract  or  implied  obligation  which  by 
the  law  of  the  foreign  country  every  possessor 
under  a  fidei  commiss  takes  upon  himself  when 
he  enters  into  possession  of  the  property  under 
it,  and  that  therefore  the  action  could  be  main- 
tained here  against  his  legal  personal  representa- 
tive ;  and  that  the  mere  fact  that  the  claim 
could  not  be  finally  established  without  proceed- 
ings being  taken  in  the  foreign  courts  was  not  a 
Suund  for  the  action  being  at  once  dismissed. 
atthyany  v.  Watford,  36  Ch.  D.  269  ;  56  L.  J., 
Ch.  881 ;  57  L.  T.  206  ;  35  W.  R.  814— C.  A. 

Executor  do  son  tort— Ho  Legal  Personal 
Representative.]  —  An  order  cannot  be  made 
for  administration  of  personal  estate  against  an 
executor  de  son  tort  when  there  is  no  legal  per- 
sonal representative  of  the  deceased.  McAlluter 
v.  McAllister,  11  L.  R.,  Ir.  533— M.  R. 

Joint  Creditors — Separate  Estate  of  Deoeased 
Partner.] — A  creditor  of  a  partnership  firm 
brought  an  administration  action  against  the 
executor  of  a  deceased  partner.  Afterwards  a 
separate  creditor  of  the  same  partner  brought  an 
administration  action  against  the  executor,  and 
obtained  judgment : — Held,  on  an  application  by 
the  plaintiff  in  the  first  action  for  the  conduct 
of  the  proceedings  in  the  second  action,  that  a 
joint  creditor  of  a  firm  could  not  maintain  a 
simple  action  for  the  administration  of  the 
estate  of  a  deceased  partner,  and  therefore  that 
the  first  action  was  not  properly  constituted. 
Application  of  the  plaintiff  was*  consequently 
refused.  McRae,  In  re,  Fortter  v.  Davie*,  Norden 
v.  McRae,  25  Ch.  D.  16  ;  53  L.  J.,  Ch.  1132 ;  49 
L.  T.  544  ;  32  W.  R.  304— C.  A. 

Intervention  of  Party  interested  by  Peti- 
tion.]— Executors  carried  on  the  business  of 
their  testator  after  his  death  in  partnership  with 
other  persons,  but  the  firm  ultimately  became 
bankrupt.  An  action  was  commenced  for  the 
administration  of  the  testator's  estate,  and  at  a 
later  date,  a  banking  company,  which  had  made 
advances  to  beneficiaries  under  the  will  and 
taken  mortgages  of  their  shares,  applied  by 
petition  for  leave  to  intervene  in  the  action  and 


obtain  payment  of  their  debt :— Held,  that  as 
the  banking  company  were  not  creditors  of  the 
testator,  they  had  taken  the  most  convenient 
course  in  applying  to  intervene  by  petition. 
Dimmoek,  In  re,  JHmmook  v.  Dimmock,  52  L  T. 
949— Kay,  J. 

Absent  Parties — Class  Representation— lotto 
of  Proceedings.] — Persons  interested  in  an  estate 
the  subject  of  an  administration  action  to  which 
they  have  not  been  made  parties,  and  whose 
rights  or  interests  may  be  affected  by  an  Older 
directing  accounts  and  inquiries,  are  not  bound 
by  the  proceedings  under  that  order— at  any  rate 
where  they  ought  to  be  served — unless  they  are 
served  with  notice  of  the  order,  or  an  order  has 
been  made  appointing  a  member  of  their  class  to 
represent  them  in  the  action.  The  practice  of 
the  court  as  to  binding  absent  parties  in  an  ad- 
ministration action  discussed.     May  v.  Newt**, 

34  Ch.  D.  347  ;  56  L.  J.,  Ch.  313  ;  66  L.T.  140; 

35  W.  R.  363— Kay,  J. 

Appeal  by  Residuary  Legatee.]  —  Where  a 
person  who  claims  as  a  creditor  against  a  tes- 
tator's estate  has  obtained  an  order  for  the 
administration  of  the  estate  against  the  executor, 
it  is  not  open  to  the  person  entitled  under  the 
will  to  the  residue  of  the  estate  to  appeal  against 
the  order.  Young*,  In  re,  Doggett  v.  Revttt, 
Vollum  v.  Bevett,  30  Ch.  D.  421 ;  53  L.  T.  682  ; 
33  W.  R.  880— C.  A. 


3.    PRACTICE. 

Summons — Duty  of  Court  to  hear  where  as 
Dispute  as  to  Facts.]— In  1867  T.  P.  mortgaged 
an  estate  to  L.  &  A.  for  1,0002.,  and  at  the 
same  time  E.  P.  and  C.  P.  gave  to  L.  &  A.  a 
joint  and  several  bond  in  the  penal  sum  of  4001 
reciting  that  the  1,0002.  had  been  advanced  at 
the  request  of  E.  P.  and  C.  P. ,  and  that  they 
had  agreed  to  give  as  a  better  security  for 
part  thereof,  a  bond  conditioned  for  payment  of 
2002.  and  interest.  The  bond  was  conditioned 
to  be  void  if  the  mortgagor  paid  the  mortgage- 
money  and  interest  according  to  his  covenant 
T.  P.  paid  the  interest  till  December,  1877,  after 
which  it  fell  into  arrears,  and  in  1880  the  mort- 
gagees entered  into  possession.  E.  P.  died  in 
1883  without  having  made  any  payment  or 
given  any  acknowledgment.  L.  &  A*,  as  credi- 
tors under  the  bond,  took  out  a  summons  for 
administration  of  his  estate.  B.  P.'s  represen- 
tatives disputed  the  claim  on  the  ground  that 
this  was  a  proceeding  to  recover  money  secured 
on  land,  and  was  barred  by  the  lapse  of  twelve 
years  under  the  Real  Property  Limitation  Act, 
1874.  Bacon,  V.-C,  without  giving  any  opinion 
on  this  question,  dismissed  the  summons  under 
the  discretion  given  by  Ord.  LV.  r.  10,  on  the 
ground  that  a  disputed  debt  ought  not  to  be 
tried  on  summons : — Held,  that  as  there  were  no 
facts  in  dispute  the  vice-chancellor  ought  to 
have  decided  the  question  of  law  on  the  sum- 
mons. Powers,  In  re,  lAndseU  v.  PkiUipt,  SO 
Ch.  D.  291 ;  53  L.  T.  647— C.  A. 

Action  or  Originating  Summons  1— Semble,  s 
joint  creditor  who  desires  to  proceed  against  the 
separate  estate  of  a  deceased  partner  should  do 
so  by  action  and  not  by  originating  summons. 
Barnard,  In  re,  Edward*  v.  Barnard,  32  Ch.  IX 


806 


EXECUTOR    AND    ADMINISTRATOR. 


806 


447 ;  55  L.  J.,  Ch.  935  ;  55  L.  T.  40 ;  34  W.  R. 
782-C.  A. 

An  action  was  brought  against  the  surviving 
trustee  of  a  will,  claiming  a  declaration  that  he 
was  not  entitled  to  charge  in  account  with  the 
plaintiff,  who  was  a  cestui  que  trust  under  the 
will,  the  costs  of  an  action  brought  by  the 
superior  landlord  in  consequence  of  the  failure 
by  the  trustee  to  repair  some  houses  which 
fanned  part  of  the  trust  property,  or  to  charge 
commission  paid  to  a  collector  who  had  collected 
the  rents  of  the  same  property,  and  also  claim- 
ing (if  necessary)  administration  of  the  testator's 
estate.  There  was  no  practical  dispute  as  to 
the  facts : — Held,  that  the  points  in  dispute 
between  the  parties  might  have  been  decided 
upon  an  originating  summons,  under  Ord.  LV. 
r.  3,  and  that,  although  the  plaintiff  succeeded 
in  his  claim,  no  costs  of  the  action  would  be 
given.  Johnson,  In  re,  Wage  v.  Shand,  53  L.  T. 
136-North,  J. 

Two  legatees  having  alleged  that  they  had 
been  induced  to  execute  a  release  indemnifying 
the  executors  of  a  testator's  estate  without 
having  had  independent  advice : — Held,  that  they 
were  entitled  to  take  out  an  originating  summons 
under  Ord.  LV.  r.  3,  of  the  Rules  of  Court*  1883, 
to  have  the  release  set  aside,  the  question  of 
the  validity  of  the  release  being  one  "  arising  in 
the  administration  of  the  estate,"  and  "affect- 
ing" the  rights  of  the  legatees  within  the 
meaning  of  that  order.  Oarnett,  In  re,  Gandy 
v.  Maeaulay,  50  L.  T.  172;  32  W.  R.  474— 
V.-C.  B. 

Payment  into  Court.]— See  Twrner  v.  2Wvr, 
post,  coL  813. 

Evidence—Claim  against  Estate— Corrobora- 
tion.]— A  claim  against  the  assets  of  a  deceased 
pason  cannot  be  allowed  upon  the  uncorrobo- 
nted  evidence  of  the  claimant.  This  rule  is  of 
universal  application,  and  does  not  depend  on 
the  character  or  position  of  the  claimant. 
Bamttt,  In  re,  Leahy  v.  O' Grady,  17  L.  R,,  Ir. 
H3-V.-C. 

There  is  no  rule  of  law  that  the  uncorrobo- 
ntted  evidence  of  a  claimant  against  the  estate 
of  a  dead  man  will  be  rejected,  but  it  will  be 
ftgaided  with  jealous  suspicion.  Oarnett,  In  re, 
Q**iy  v.  Macavlay,  31  Ch.  D.  1— C.  A. 

There  is  no  rule  of  law  which  precludes  a 
claimant  from  recovering  against  the  estate  of 
*  deceased  person  on  his  own  testimony  without 
corroboration ;  although  the  court  will  in 
feneral  require  6uch  corroboration.  Hodgson, 
In  re,  Beckett  v.  Bamsdale,  31  Ch.  D.  177 ; 
«U  J.,  Ch.  241  ;  64  L.  T.  222  ;  34  W.  R.  127 
-C.A. 

-—  Further  Consideration— Admission  o£ 
attar  Judgment.] — An  action  was  brought  by 
the  beneficiaries  under  the  will  of  a  testator 
*g»uwt  the  trustees  thereof  to  administer  the 
Mate  of  the  testator.  The  action  was  heard  as 
a  short  cause,  when  the  usual  judgment  was 
inade  directing  accounts  and  inquiries,  and  the 
farther  consideration  was  adjou  rned.  The  j  udg- 
■ent  contained  no  special  reservation  as  to 
yts.  When  the  action  came  on  upon  further 
consideration,  the  plaintiffs  desired  to  read  an 
•fidavit  which  contained  charges  against  the 
defendants.  The  charges  related  for  the  most 
fsrt  to  the  conduct  of  the  defendants  between 


judgment  and  further  consideration,  and  partly 
also  to  the  conduct  of  the  defendants  before 
action  brought.  The  object  of  the  affidavit  was 
to  make  the  defendants  liable  to  pay  the  costs 
of  the  action,  or  some  part  thereof,  occasioned 
by  reason  of  the  acts  complained  of  in  the 
affidavit  and  otherwise  appearing  by  the  evi- 
dence in  the  action.  The  defendants  objected 
to  this  affidavit  being  read,  contending  that  the 
court  had  no  jurisdiction  to  admit  it : — Held, 
that  as  to  the  conduct  of  the  defendants  be- 
tween judgment  and  further  consideration,  the 
plaintiffs  were  entitled  to  read  an  affidavit,  but 
that  as  to  the  conduct  of  the  defendants  before 
action,  no  affidavit  could  be  read.  Semble,  that 
if  persons  who  had  been  served  with  the  judg- 
ment desired  to  read  on  the  further  consideration 
an  affidavit  as  to  conduct  of  the  defendants 
before  action,  they  would  be  entitled  to  do  so. 
Bevill,  In  re,  Leigh  v.  Bumney,  55  L.  T.  542— 
Chitty,  J. 

Under  Ord.  XXXVII.  r.  1,  the  court  may  in 
an  administration  action,  and  after  the  chief 
clerk  has  made  his  certificate,  receive,  if  he 
thinks  fit,  fresh  affidavit  evidence  on  further 
consideration.    May  v.  Newton,  ante,  coL  804. 


Sight  to  Cross-examine  on  Affidavits  in 


support    of    Summons.] — See    Wilson,  In   re, 
Alexander  v.  Colder,  ante,  col.  763. 

Staying  Proceedings— Action  against  Executor 
personally — Pending  Administration  Action.] — 
A  creditor  of  a  deceased  person  sued  the  execu- 
trix in  the  county  court  and  obtained  judgment 
for  his  debt  before  judgment  in  an  administra- 
tion action.  After  judgment  for  administration 
and  a  receiver  the  creditor  obtained  from  the 
county  court  judge  an  order  to  commit  the 
executrix  : — Held,  that  the  creditor  could  not 
be  restrained  from  enforcing  his  judgment 
against  the  executrix ;  but  that  the  proper 
course  was  to  direct  the  receiver  to  pay  the  cre- 
ditor his  debt  and  costs  out  of  the  estate, 
reserving  the  question  whether  the  payment 
should  be  allowed  to  the  executrix.  Womersley, 
In  re,  Etheridge  v.  Womersley,  29  Ch.  D.  557  ; 
54  L.  J.,  Ch.  965  ;  53  L.  T.  260  ;  33  W.  R.  935— 
Pearson,  J. 

Satisfaction  of  Plaintiffs  Claim— Infant 


Defendant] — Where  some  of  the  defendants  in 
an  administration  action  offered  to  satisfy  the 
whole  of  the  plaintiff's  claim  and  the  costs  of 
the  action,  the  court  refused  to  stay  the  pro- 
ceedings unless  the  rights  of  an  infant  defendant 
interested  in  the  suit  were  also  provided  for. 
CUgg  v.  Clegg,  17  L.  R.,  Ir.  118— V.-C. 

Certificate — Inquiry  as  to  Debts — Purchase  of 
Debts  by  Plaintiff's  Solicitor.]— The  solicitor 
to  the  plaintiff  in  a  creditor's  action  bought 
up  debts ;  the  estate  was  insolvent :— Held, 
that  the  question  whether  the  solicitor  was 
trustee  for  the  creditors  of  any  profit  on  the 
purchase  could  not  be  raised  by  the  certificate 
of  the  chief  clerk,  in  the  absence  of  any  direction 
on  the  subject  in  the  order  under  which  the 
certificate  was  made.  TxLlet,  In  re,  Field  v. 
Lydall,  32  Ch.  D.  639 ;  55  L.  J.,  Ch.  841 ;  54 
L.  T.  604 ;  35  W.  R.  6— North,  J. 

Form  of— Separate  and  Joint  Debts.  J— 

Where  the  estate  of  a  deceased  partner  is  being 

D  D  2 


807 


EXECUTOR    AND    ADMINISTRATOR. 


808 


administered  at '  the  suit  of  a  separate  creditor, 
and  no  partnership  creditor  is  party  thereto,  the 
certificate  ought  to  distinguish  between  the 
separate  debts  of  the  deceased  and  the  debts  of 
the  firm  in  which  he  was  partner,  and  at  some 
stage  of  the  proceedings  tne  surviving  partner 
ought  to  be  brought  before  the  court,  so  as  to 
haye  an  opportunity  of  disputing  the  finding  as 
to  the  partnership  debts.  Hodgson,  In  re, 
Beckett  v.  Bamsdate,  31  Ch.  D.  177  ;  55  L.  J.,  Ch. 
241  ;  64  L.  T.  222  ;  34  W.  B.  127— C.  A. 

Debt  from  Estate  to  Trustees— Debt  due  from 
one  Trustee  to  Estate— Sot-oft]— Crombie  and 
Storer  were  two  trustees  of  an  estate  adminis- 
tered by  the  court.  Crombie  became  bankrupt 
after  1869.  A  balance  of  896J.  was  found  due 
from  Crombie  to  the  estate,  and  a  balance  of 
745?.  was  found  due  from  the  estate  to  the  two 
trustees  jointly  :— Held,  that  the  debt  due  from 
the  estate  to  the  two  trustees  could  not  be  set 
on*  againBt  the  debt  due  from  one ;  that  the 
plaintiffs  were  entitled  to  an  inquiry  what  part 
of  the  746Z.  found  due  to  the  two  trustees  was, 
as  between  the  two,  due  to  Crombie  the  bank- 
rupt, but  as  that  inquiry  was  not  asked  for,  and 
as  there  was  evidence  showing  that  all  the 
money  was  in  fact  due  to  Storer,  the  debt  so  due 
must  be  paid  to  him.  McEwan  v.  Crombie  or 
Porter  v.  Grant,  26  Ch.  D.  175  ;  53  L.  J.,  Ch. 
24 ;  49  L.  T.  499  ;  32  W.  R.  115— North,  J. 

Beceiver— Appointment  of— At  what  Stage.] 
— In  an  administration  action,  commenced  by 
originating  summons,  a  receiver  may  (in  a 
proper  case)  be  appointed  immediately  after  the 
service  of  the  summons  and  before  any  order  for 
administration  has  been  made.  Francke,  In  re, 
Drake  v.  Francke,  57  L.  J.,  Ch.  437  ;  68  L.  T.  305 
— North,  J. 

An  administrator  or  executor  may  prefer  one 
creditor  to  another,  and  there  is  no  equity 
which  entitles  the  court  to  interfere  except 
after  judgment  for  administration.  Therefore 
the  plaintiff  in  a  creditor's  action  for  adminis- 
tration is  not  entitled  to  interim  relief  against 
the  executor  or  administrator  unless  a  case  is 
shown  of  the  assets  being  wasted.  Harris,  In 
re,  Harris  v.  Harris,  56  L.  J.,  Ch.  764  ;  56  L.  T. 
507  ;  35  W.  R.  710— Chitty,  J. 

Application  to  restrain  Payment — Summons 
to  review  Taxation.] — A  motion  was  made  by  a 
plaintiff  for  an  order  to  stay  payment  out  of 
court  of  a  sum  payable  under  an  order  of  the 
court  to  the  defendant's  solicitors  as  taxed  costs, 
until  a  pending  summons  by  the  defendant  to 
review  taxation  should  be  disposed  of.  The 
grounds  of  the  motion  were  the  defendant's  im- 
pecuniosity,  and  also  the  absence  of  any  liability 
on  the  defendant's  part  to  her  solicitors  for  any 
further  sum  than  taxed  costs.  The  motion  was 
ref  ased,  as  being  an  unprecedented  attempt  to 
extend  the  practice  as  to  requiring  security  to 
be  given  for  costs.  Barber,  In  re,  Burgess  v. 
Vinnicome,  56  L.  J.,  Ch.  624  ;  64  L.  T.  728  ;  34 
W.  R.  678— Chitty,  J. 

Tenant  for  Life  let  into  Possession— Security.] 
— It  is  not  now  the  practice,  upon  an  order  on 
further  consideration  in  an  administration  action 
in  ordinary  cases,  to  require  the  tenant  for  life 
to  give  security  before  being  let  into  possession 
of  settled  land  and  heirlooms,  but  he  is  only 


required  to  sign  an  inventory  of  the  latter. 
Temple  v.  Thring,  56  L.  T.  283— North,  J. 

Registration    as    lis    Pendens.]  — &r  Lis 
Pendens. 

Insolvent  Estate— Judicature  Act,  1876, 1. 10.] 
— Under  8.  28,  sub-s.  1,  of  the  Judicature  Act 
(Ireland)  (equivalent  to  the  Judicature  Act,  1875, 
s.  10),  in  administering  the  estate  of  a  penon 
who  has  died  insolvent,  a  creditor  on  the  estate 
whose  debt  bears  interest  is  entitled  to  interest 
only  up  to  the  date  of  the  judgment  for  administra- 
tion, which  by  virtue  of  that  section  is  equrra- 
lent  to  an  adjudication  in  bankruptcy,  in  cases 
where  the  death  of  the  person  whose  estate  is 
being  administered  occurred  after  the  com- 
mencement of  the  act,  O'Brien  v.  QUUnan,  IS 
L.  R.,  Ir.  6^M.  B. 

The  provision  in  the  Judicature  Act  (Ireland), 
s.  28,  sub-s.  1,  that  in  the  administration  of  in- 
solvent  estates  the  rules  in  bankruptcy  shall  be 
observed  as  to  the  respective  rights  of  seemed 
and  unsecured  creditors,  does  not  affect  unsecured 
creditors  inter  se.  Therefore,  where  a  creditor 
obtained  judgment  against  an  administratrix 
before  decree  for  administration,  the  judge  in 
chambers  ordered  his  demand  to  be  paid  in  foil 
out  of  a  fund  in  court,  in  priority  to  the  other 
unsecured  creditors.  Wineheusev.  Winehouse(p> 
Ch.  D.  545),  and  Smith  v.  Morgan  (5  C.  P.  D.  837), 
followed.  Scott  v.  Murphy,  13  L.  R.,  Ir.  10— 
M.  A. 


Bights  of  Mortgagee — Interest  on  Debt 


— Proof] — In  the  administration  of  an  insolvent 
estate,  a  mortgaged  property  of  the  testator 
having  been  sold  in  the  administration  action, 
and  the  proceeds  of  sale  paid  into  court:— 
Held,  that  the  mortgagee  was  entitled  to  hare 
the  proceeds  of  sale  applied  first  in  payment  of 
interest  on  the  mortgage  debt  down  to  the  date 
of  payment,  and  then  in  payment  of  principal 
and  to  prove  against  the  estate  for  the  unpaid 
balance  of  principal,  but  that  the  amount  of 
the  proof  could  not  exceed  the  amount  of 
principal  due  at  the  date  of  the  judgment  in  the 
action.  Summers,  In  re  (13  Ch.  D.  136)  dis- 
tinguished. Talbott,  In  re,  King  v.  Chick,  39 
Ch.  D.  567  ;  58  L.  J.,  Ch.  70 ;  60  L.  T.  45 ;  37 
W.  R.  283— North,  J. 


Administration   In   Bankruptcy.]—^ 


Bankbuptot,  XX. 


4.  COSTS. 

a.  When  Estate  Insufficient — Priority. 

Trustees — Action  by  Cestui  que  trust}— Trus- 
tees in  an  administration  action brougbtoy  their 
cestuis  que  trust,  where  an  order  has  been  made 
for  payment  of  costs  out  of  the  estate,  and  it 
appears  probable  that  the  estate  will  not  be 
sufficient  to  pay  all  the  costs  in  full,  are  entitled 
to  an  order  directing  the  payment  of  their  costs, 
charges  and  expenses  in  priority  to  the  costs  of 
all  other  parties  to  the  action.  Dodd*  v.  Tufa 
25  Ch.  D.  617  ;  53  L.  J..  Ch.  598 ;  32  W.  B.  424 
— V.-C.  B. 

Executor  of  Defaulting  Exeeutor  — Defendiat 
appearing  in  two  Capacities.] — Where  an  action 
was  brought  for  the  administration  of  a  testators 


809 


EXECUTOR    AND    ADMINISTRATOR. 


810 


estate  Against  the  executor  of  a  defaulting  exe- 
cutor, whose  estate  was  insolvent : — Held,  that 
the  defendant  being  before  the  court  in  a  double 


to  do.  Subsequently  a  creditor  brought  an 
action  for  the  administration  of  the  testator's 
real  and  personal  estate,  to  which  the  executor 
capacity,  should  have  his  costs  of  taking  the  !  was  made  a  defendant.  It  then  appeared  that 
accounts  of  the  original  testator's  estate  and  half  ,  the  testator  had  left  no  personal  estate,  but  only 
the  rest  of  the  costs  of  the  action  out  of  the  I  real  estate,  which  was  insufficient  to  satisfy  the 
estate.  Palmer  v.  Janes  (43  L.  J.,  Ch.  349),  and  '  creditors  in  full :— Held,  that  the  executor  was 
Kitto  i.Luke  (28  W.  R.  411),  followed.  Griffith*,  not  entitled  to  be  paid  his  costs  incurred  in  the 
7*  re,  Griffith*  v.  Lewi*,  26  Ch.  D.  465 ;  53  L.  J.,    probate  action  in  priority  to  the  debts  ;  but  that 


Ch.  1003 ;  51  L.  T.  278— C.  A. 

Plaintiff  Creditor  —  Between  Solicitor  and 
Chant ]— The  plaintiff,  a  creditor,  was  allowed 
costs  in  an  administration  suit,  commenced  by 
summons,  as  between  solicitor  and  client,  where 
the  fond  realized  was  insufficient  to  pay  the 
ereditoTs  in  full.  Flynn,  In  re,  Guy  v.  Mo  Carthy, 
17  L.  R.,  Ir.  457— M.  R. 

—  Joint  and  Separate  Creditors.] — In  an 
action  by  a  separate  creditor,  on  behalf  of 
himself  and  all  other  the  creditors  of  a  testator, 
who  was  one  of  a  firm  of  traders,  for  a  general 
administration  of  the  testator's  estate,  the  general 
estate  was  realised  and  turned  out  sufficient  to 
nay  in  fall  the  separate  creditors,  but  insufficient 
to  pay  in  full  the  joint  creditors  of  the  testator : 
—Held,  that  the  plaintiff  was  entitled  to  costs 
out  of  the  estate  as  between  solicitor  and  client. 
McBae,  In  re,  Norden  v.  McBae,  32  Ch.  D.  613  ; 
55  L.  J.,  Ch.  708  ;  54  L.  T.  728— Kay,  J. 

leaidnary  Legatee  Plaintiff— Between  Soli- 
ctor aid  Client  j — A  residuary  legatee  plaintiff 
in  an  administration  action  is  entitled  to  his 
costs  as  between  solicitor  and  client  where  the 
estate  is  insufficient  for  payment  of  legacies,  pro- 
vided it  is  sufficient  for  payment  of  debts,  but 
not  otherwise.  Harvey,  In  re,  Wright  v.  Wood*, 
*  Ch.  D.  179  ;  53  L.  J.,  Ch.  544  ;  50  L.  T.  554  ; 

32  W.  R.  765— Chitty,  J. 
It  is  an  established  rule  that  in  a  legatee's 

administration  action,  when  the  estate  is  insuffi- 
cient to  pay  the  legacies  in  full,  the  plaintiff  is 
entitled  to  costs  oat  of  the  fund  as  between  soli- 
citor and  client.  Wilkin*,  In  re,  Wilkin*  v. 
fotherkam,  27  Ch.  D.  703  ;  54  L.  J.,  Ch.  188 ; 

33  W.  R.  42— Pearson,  J. 
A  residuary  legatee  who  brought  an  action  for 

administration  was,  prior  to  the  Rules  of  1883, 
entitled  to  costs  out  of  the  estate  unless  some 
special  grounds  were  shown  for  depriving  him 
of  them.  Farrow  v.  Austin  (18  Ch.  D.  58)  fol- 
lowed. McClellan,  In  re,  MoClellan  v. 
MeOellan,  29  Ch.  D.  495  ;  54  L.  J.,  Ch.  659  ;  52 
L  T.  741 ;  33  W.  B.  888— C.  A. 

PlaatuTs  Costs— Priority— Secured  Creditor.] 
—A  secured  creditor  upon  an  estate,  which  upon 
realization  under  the  order  of  the  court  is  found 
deficient,  cannot,  after  proving  his  claim  at 
chambers,  without  valuing  his  security,  claim 
priority  over  the  plaintiff's  costs.  The  time 
when  the  creditor's  rights  are  fixed  by  election 
is  the  time  when  he  sends  in  his  proof.  Clog- 
kwy,  In  re,  McDonald  v.  Cloghe**y,  21  L.  R., 
Ir.  388-M.  R. 

Inciter's  Costs — Probate  and  Administration 
Aettns  —  Plaintiff's  Costs.]— An  action  was 
bought  in  the  Probate  Division  by  an  executor 
to  propound  a  will.  The  court  pronounced  in 
favour  of  the  validity  of  the  will,  and  ordered 
the  defendant  to  pay  the  costs,  which  he  failed 


the  estate  was  distributable  in  paying  (1)  the 
executor's  costs  in  the  administration  action  as 
between  solicitor  and  client;  (2)  the  plaintiff 's 
costs  in  that  action  as  between  solicitor  and 
client  ;  and  (3)  the  debts.  Pearce,  In  re, 
Mo  Lean  v.  Smith,  66  L.  T.  228  ;  35  W.  R.  358— 

Kay,  J. 

Where,  in  a  probate  suit,  the  costs  of  either 
party  are  ordered  to  be  paid  out  of  the  assets, 
and  subsequently  an  administration  suit  is  in- 
stituted  and  the  estate  proves  deficient,  the 
probate  costs  have  priority  next  after  the  costs 
of  administration  suit  and  before  the  debts  of 
the  deceased.  Kelly  v.  Kelly,  21  L.  R.,  Ir.  243 
— M.  R. 

A  testator  by  his  will  made  several  specific 
legal  devises  of  real  estate,  of  which  one  was  to  J., 
one  of  his  executors,  and  another  was  to  L.    He 
devised  the  remainder  of  his  real  estates,  and 
bequeathed  his  personal  estate  to  trustees,  upon 
trust  for  sale  and  conversion,  and  to  stand  pos- 
sessed of  the  proceeds  upon  trust,  after  payment 
of  his   debts   and   funeral    and   testamentary 
expenses,  to  pay  certain  pecuniary  legacies,  and 
he  gave  the  residue  of  the  trust  moneys  unto 
and  equally  between  his  paternal  next  of  kin. 
J.  alone  proved  the  will.     The  estates  devised 
to  J.    and  L.   had,  under  the   provisions  of  a 
settlement,  been  respectively  liable  to  have  two 
sums  of  3,000Z.  and  1,200/.  respectively  raised  out 
of  them.    The  right  to  those  sums  had  become 
vested  in  the  testator.    An  action  to  administer 
the  testator'B  estate  was  brought  by  W.,  one  of 
the  residuary  legatees,  against  J.  and  L.,  the 
only  question  in  dispute  being  whether  the  two 
sums  of  3,000/.  and  1,2002.  were  raisable  as  part 
of  the  testator's  personal  estate.     It  was  held 
that  they  were  not  raisable,  but  that  they  had 
become  merged  in  the  estates  on  which   they 
were  respectively  charged.     The  result  of  this 
decision  was,  that  the  personal  estate  was  defi- 
cient.   An  action  had  been  previously  brought 
in  the   Probate   Division,  by  W.  and  another 
residuary  legatee,  against  J.,  impeaching  the 
validity  of  the  testator's  will.     The  court  pro- 
nounced for  the  validity  of  the  will,  but  ordered 
that  the  costs  of  all  parties  to  the  action  should 
be  paid  out  of  the   personal  estate.     On  the 
further   consideration   of    the    administration 
action  : — Held,  that  the  personal  estate  and  the 
proceeds  of  the  sale  of  the  residuary  real  estate 
must  be  applied  in  paying :   (1)  the  costs,  as 
between  solicitor  and  client,  of  the  executor, 
and  his   costs,  charges,  and  expenses  properly 
incurred  (including   his  costs  of  the  Probate 
action) ;  (2)  the  costs,   as  between  party  and 
party,  of  the  plaintiff,  and  of  the  defendant  L. 
rateably  ;  and  that,  there  being  a  deficiency,  the 
costs  of  the  action  (so  far  as  not  provided  for) 
must  be  borne  by  the  specifically  devised  real 
estates  rateably,  according  to   their  respective 
values  at  the  time  of  the  testator's  death.    But, 
that  there  was  no  jurisdiction   to  charge  the 

costs  of  the   Probate   action  (other  than  the 

executor's  costs)  on  the  real  estate.    The  above 


811 


EXECUTOR   AND    ADMINISTRATOR. 


812 


order  was  made,  though  some  of  the  specific 
devisees  were  not  before  the  court.  But, 
whether  the  order  could  be  enforced  against  the 
absent  Bpecific  devisees,  quaere.  Price,  In  re, 
Williams  v.  Jenkins,  31  Ch.  D.  485 ;  55  L.  J., 
Ch.  501  ;  54  L.  T.  416  ;  34  W.  R.  291— Pear- 
son, J. 

b.  In  Other  Oases. 

Of  Unnecessary  Proceedings.]— The  court,  in 
the  exercise  of  its  discretion  as  to  costs  under 
Ord.  LXV.  r.  1,  will  order  the  plaintiff — if  an 
infant,  then  the  next  friend — to  pay  the  costs  of 
Any  unnecessary  or  improper  administration 
proceedings.  Blake,  In  re,  Jones  v.  Blake,  29 
Ch.  D.  913  ;  54  L.  J.,  Ch.  880  ;  53  L.  T.  302  ;  33 
W.  R.  886— C.  A. 

An  administration  action  was  commenced  on 
the  6th  of  May,  1875,  and  the  action  was  heard 
on  the  4th  November,  1887,  upon  further  con- 
sideration. The  court,  under  Ord.  LXV.  r.  11, 
of  the  Rules  of  Court,  1883,  referred  the  matter 
to  a  taxing-master  for  inquiries,  and  report  as  to 
the  delays  and  as  to  the  costs,  amounting  to 
about  4,O0OZ.,  a  sum  equal  to  the  whole  value  of 
the  estate.  The  taxing-master  made  his  report, 
disallowing  considerable  sums ;  and  the  case 
again  came  on  on  further  consideration : — Held, 
that  the  court  will  not  permit  the  costs  oc- 
casioned by  improper  litigation,  or  by  negligent 
conduct  of  administration  proceedings,  to  be 
paid  out  of  an  estate  under  its  care ;  that  the 
amount  of  costs  allowed  by  a  taxing-master,  as 
between  the  client  and  his  solicitor,  is  not  con- 
clusive of  the  amount  which  the  court  will  allow 
out  of  the  estate.  Brown  v.  Burdett,  59  L.  T. 
388— Kay,  J.  Affirmed  40  Ch.  D.  244  ;  60  L.  T. 
520 ;  37  W.  R.  533— C.  A.  [See  Rules  of  May, 
1889,  Ord.  LXV.  r.  27,  regulation  38,  a,  b. 

What  Property  liable  to— Descended  Real 
Estate  by  Forfeiture.] — Real  estate  which  had 
descended  to  a  testator's  heir-at-law,  not  because 
it  was  not  originally  disposed  of  by  the  will, 
but  by  reason  of  a  subsequent  forfeiture  by  the 
devisee  under  the  provisions  of  the  will : — Held, 
not  liable  to  pay  the  costs  of  an  action  to  ad- 
minister the  testator's  estate  in  priority  to 
specifically  devised  and  bequeathed  freehold  and 
leasehold  estate.  Scott  v.  Cumberland  (18  L.  R.. 
JSq.  578),  Ooioan  v.  Broughton  (19  L.  R.f  Eq. 
77),  and  Row  v.  Row  (7  L.  R.,  Eq.  414),  dis- 
tinguished. Hurst  v.  Hurst,  28  Ch.  D.  159  ;  54 
L.  J.,  Ch.  190  ;  33  W.  R.  473— Pearson,  J. 

Bents  and  Profits  of  Realty.  ]— Costs  of 

an  administration  suit  directed  to  be  paid  out  of 
the  rents  and  profits  of  the  real  estate.  Biggar 
v.  Eastwood,  15  L.  R.,  Ir.  219— M.  R. 

Legal  Personal  Representative— No  Per- 
sonal Estate.] — Where,  in  a  creditor's  action  to 
administer  real  and  personal  estate,  it  is  found, 
upon  taking  the  accounts,  that  the  deceased  had 
not  any  personal  estate,  the  personal  repre- 
sentative Laving  appeared  and  been  declared 
entitled  to  costs,  the  plaintiff  is  entitled  to  have 
those  costs,  along  with  his  own,  paid  out  of  the 
real  estate.  Barry  v.  Quintan,  21  L.  R.,  Ir.  11 
— V.-C. 

Trustees— Bankruptcy  of  one — Set-off.]— The 
insolvent  trustee  being  indebted  to  the  estate, 


and  the  solvent  trustee  not  being  responsible 
for  that  debt,  and  the  Bankruptcy  Act,  1869, 
having  made  a  debt  arising  from  a  breach  of 
trust  to  continue  notwithstanding  the  bank- 
ruptcy : — Held,  that  a  reference  be  directed  to 
the  taxing-master  to  apportion  the  costs  of  the 
trustees  appearing  by  the  same  solicitor,  and 
that  the  costs  of  the  solvent  trustee  be  paid  out 
of  the  estate,  and  the  costs  apportioned  as  the 
costs  of  the  insolvent  trustee  be  set  off  against 
the  amount  found  due  from  him  to  the  estate. 
McEwan  v.  Oromhie,  or  Porter  v.  Chant,  25 
Ch.  D.  175  ;  53  L.  J.,  Ch.  24  ;  49  L.  T.  499 ;  32 
W.  R.  115— North,  J. 

Whether  under  this  direction  the  whole  of  the 
common  costs  of  the  two  trustees  would  be 
allowed  to  the  solvent  trustee  or  divided,  must 
depend  on  the  settled  practice  of  the  taxing- 
master's  office.    lb. 

Bankrupt  Executor  Debtor  to  Estate.]— A 
sole  executor,  who  was  a  defendant  to  an  ad- 
ministration action,  became  bankrupt  after  the 
administration  judgment.  He  was  a  debtor  to 
the  estate  in  respect  of  money  advanced  to  him 
by  the  testator  in  his  lifetime  : — Held,  that  the 
executor  must  have  his  costs  subsequently  to 
the  bankruptcy,  but  that  his  prior  costs  must  be 
set-off  against  the  debt  due  from  him.  Baskam, 
In  re  (23  Ch.  D.  195)  followed.  VotoUs,  In  re, 
(TDonoghm  v.  Vowles,  32  Ch.  D.  243  ;  55  L.  J„ 
Ch.  661  ;  54  L.  T.  846  ;  34  W.  R.  639— Pearson,  J, 

Inquiry  as  to  Heir  —  Summons  to  vary  Cer- 
tificate—Costs of  Claimant.]— In  an  adminis- 
tration action  an  inquiry  was  ordered  as  to  who 
was  the  heir  of  the  testator.  The  chief  clerk 
found  that  R.  K.  was  the  heir,  but  that  in 
default  of  heirs  on  the  paternal  side,  the  heir-at- 
law  was  J.  S.  P.  J.  S.  P.  took  out  a  summons  to 
vary  the  certificate,  and  the  court  held  that  the 
claimant  R.  E.  had  not  proved  his  relationship 
to  the  testator.  The  unsuccessful  claimant  asked 
for  costs  : — Held,  that  there  was  no  general  rule 
entitling  a  claimant  coming  in  on  an  inquiry  in 
chambers  in  an  administration  action,  and 
failing,  to  have  his  costs  out  of  the  estate.  The 
rule  is  correctly  stated  in  Seton  on  Decrees,  4th 
edit.,  vol.  1,  part  1,  pp.  66  and  67  :  "  A  claimant 
failing  in  chambers  to  make  out  his  claim  may 
be  ordered  to  pay  costs  " : — Held  also,  that  the 
decision  of  the  court  depended  upon  the  special 
circumstances  of  each  case ;  that  in  this  case 
R.  K.  had  not  proved  that  his  hearsay  evidence 
upon  which  he  relied  was  that  of  a  person  a 
member  of  the  family ;  that  the  justice  of  the 
case  would  be  met  by  not  giving  the  claimant 
any  costs  of  the  inquiry  in  chambers,  and 
ordering  him  to  pay  the  costs  of  the  adjourn- 
ment into  court.  Knight,  In  re,  Knight  v. 
Gardner,  57  L.  T.  238— Kay,  J. 

Trustee  and  Executor  —  Costs  as  between 
Solicitor  and  Client] — One  of  two  executors 
and  trustees  commenced  an  action  against  the 
other  for  the  administration  of  the  estate,  and  a 
decree  was  made.  There  was  no  allegation  of 
any  misconduct  on  the  part  of  the  defendant 
On  the  action  coming  on  for  further  considera- 
tion, Kay,  J.,  gave  the  plaintiff  his  costs  at 
between  solicitor  and  client,  but  gave  the  defen- 
dant costs  only  as  between  party  and  party* 
holding  that  two  sets  of  costs  as  between  solicitor 
and    client   ought  not  to  be  allowed   to  the 


813 


EXTRADITION. 


814 


trustees :— Held,  on  appeal,  that  a  trustee  is 
entitled  to  costs  as  between  solicitor  and  client 
in  an  administration  action,  unless  a  case  of 
misconduct  is  made  out  against  him,  and  that 
the  defendant  must  have  costs  as  between 
solicitor  and  client.  Love,  In  re,  Hill  v.  Spur- 
few,  29  Ch.  D.  348  ;  54  L.  J.,  Ch.  816  ;  52  L.  T. 
358 ;  33  W.  R.  449— C.  A. 

Executors'  Cross-examination  of  Creditor.]— 

A.,  being  entitled  to  a  life  interest  in  a  fund 
over  which  she  had  a  testamentary  power  of 
appointment,  borrowed,  in  1871,  from  B.  350/. 
on  the  security  of  a  covenant  that  1,250/.  should 
be  paid  one  month  after  her  death.     She  died  in 
1884,  having  by  her  will  appointed  executors, 
and  directed  payment  of  her  debts,  and  also 
that  ft,  one  of  her  executors  (a  solicitor),  should 
be  entitled  to  charge  and  receive  payment  for 
all  professional  business  to  be  done  by  him  under 
the  will.    C.  was  one  of  the  attesting  witnesses. 
In  an  administration  action  by  B.  on  behalf  of 
himself  and  all  other  creditors,  the  estate  being 
insolvent: —Held,  that  the  executors  could  not 
be  deprived  of  the  costs  out  of  the  assets  of  a 
cross-examination  for  the  purpose  of  investi- 
gating B.'s  claim,  though  no  proceedings  to  set 
aside  the  deed  were  subsequently  taken.    Ba  rber, 
In  re,  Burgess  v.  Vinnwome,  31  Ch.  D.  665  ;  55 
L.  J.,  Ch.  373  ;  54  L.  T.  375 ;  34  W.  R.  395— 
Chitty,  J. 

father  Consideration.] — Although  applica- 
tions for  an  order  on  farther  consideration  are 
by  rales  of  the  Supreme  Court,  1883,  Order  LV., 
r.  2,  sab-r.  16,  where  the  estate  is  insolvent,  busi- 
ness to  be  disposed  of  in  chambers,  a  plaintiff 
will  not  be  disallowed  his  costs  of  further  con- 
sideration in  court  where  the  distribution  of  the 
insolvent  estate  gives  rise  to  questions  of  diffi- 
culty,   lb. 


Taxation  in  District 
▼.  AUtree,  ante,  col.  667. 


]— See  Wilson 


adjourned  into  Court  by  Executor.] 
—A  testator  made  a  voluntary  settlement  which 
was  admitted  to  be  void  against  his  creditors. 
The  trustee  of  the  settlement  paid  580/.  into 
court.  An  administration  action  was  necessary 
to  find  oat  the  amount  of  debts.  The  claims  of 
the  creditors  amounted  to  504/.  The  chief  clerk 
ordered  the  clear  balance  to  be  paid  to  the 
trustee,  leaving  the  creditors  only  a  dividend. 
The  summons  was  adjourned  into  court  by  the 
defendant  the  executor : — Held,  that  the  order 
of  the  chief  clerk  was  right,  and  that  the  defen- 
dant must  pay  the  costs  of  the  adjourned  sum- 
mons personally.  Turner,  In  re.  Turner  v. 
Turner,  51  L.  T.  497— V.-C.  B. 


EXTRADITION. 

Trial  to  Offence  other  than  Extradition  Crime 
prtved  en  Surrender.] — Upon  the  committal  of 
a  fugitive  criminal  under  s.  10  of  the  Extradition 
Act,  1870,  upon  alleged  charges  of  forgery  com- 
nitted  in  the  State  of  New  York,  it  was  suggested 
that,  upon  being  extradited,  the  prisoner  might 


be  tried  in  America  for  some  charge  other  than 
the  alleged  charges  of  forgery,  in  respect  of 
which  she  had  been  surrendered,  and  accordingly 
a  rule  nisi  for  habeas  corpus  was  granted: — 
Held,  that  the  rule  must  be  discharged,  since 
the  Government  of  the  United  States  of  America 
had  made  provision  for  s.  3,  sub-s.  2,  of  the 
Extradition  Act,  1870,  and  that  a  fugitive 
criminal  would  be  tried  there  solely  for  the 
offence  in  respect  of  which  he  had  been  sur- 
rendered. Further,  that  the  point  had  been 
clearly  raised  and  decided  in  The  United  States 
v.Rauscker  (12  Davis,  Sup.  Ct.  407),  which,  as  a 
decision  of  the  Supreme  Court  of  the  United 
States,  was  binding  on  all  courts  within  the 
Union.  Woodall,  In  re,  57  L.  J.,  M.  C.  72 ;  59 
L.  T.  549  ;  52  J.  P.  646— D. 

Crime  committed  in  Foreign  Country  by  Person 
"  in  Her  Majesty's  Dominions."]— N.,  being  in 
Southampton,  wrote  and  sent  certain  letters 
containing  alleged  false  pretences  to  certain 
persons  carrying  on  business  within  the  jurisdic- 
tion of  the  German  Empire,  thereby  inducing 
them  to  part  with  certain  goods  and  deliver 
them  to  his  order  to  certain  persons  in  Hamburg. 
N.  also  sent  to  the  same  persons  certain  alleged 
forged  cheques  in  payment : — Held,  on  argument 
of  a  rule  nisi  for  a  habeas  corpus,  that  N.  was  a 
fugitive  criminal  within  the  Extradition  Act, 
1870  (33  &  34  Vict.  c.  52),  s.  26,  and  was  rightly 
committed  by  the  police  magistrate  to  await  the 
warrant  of  the  secretary  of  state  for  his  extradi- 
tion.   Reg.  v.  Nillins,  53  L.  J.,  M.  C.  157 — D. 

To  satisfy  a  magistrate  in  committing  a  prisoner 
charged  with  an  extradition  crime,  under  s.  10 
of  33  &  34  Vict.  c.  52,  there  must  be  some 
evidence  that  the  prisoner  committed  such  crime 
within  the  jurisdiction  of  the  country  seeking 
extradition.  Meg.  v.  Lavaudier,  15  Cox,  C.  C. 
329— D. 

"Apprehension" — Person  already  in  Custody 
—Arrest  without  a  Warrant.  ]— Under  s.  8  of  the 
Extradition  Act,  1870,  a  fugitive  criminal  who 
is  already  in  custody  may  be  detained  for  an 
offence  coming  within  the  act,  even  though  he 
was  originally  arrested  without  any  warrant. 
The  word  "apprehension"  in  s.  8  includes 
"  detention : "— Semble,  per  Brett,  L.  J.,  that  a 
constable  would  be  justified  in  arresting  without 
a  warrant  a  fugitive  from  a  foreign  country  on 
reasonable  grounds  of  suspicion  that  he  has  com- 
mitted a  crime  which  would  be  a  felony  if  com- 
mitted in  the  United  Kingdom.  Reg.  v.  Weil, 
9  Q.  B.  D.  701 ;  53  L.  J.,  M.  C.  74  ;  47  L.  T.  630 ; 
31  W.  R.  60  ;  16  Cox,  C.  C.  189— C.  A. 

Committal  upon  improper  Warrant — Other 
Charges.] — A  prisoner  was  committed  to  be  ex- 
tradited to  France  upon  a  warrant  of  committal 
which  was  found  to  be  bad  by  the  court,  but 
other  offences  alleged  against  him  were  included 
in  the  French  warrant  for  his  extradition : — 
Held,  that  he  was  entitled  to  be  discharged. 
Reg.  v.  De  Portvgal,  or  Be  Portugal,  Tn  re,  16 
Q.  B.  D.  487 ;  55  L.  J.,  Q.  B.  567  ;  34  W.  R.  42 ; 
50  J.  P.  501— D. 

Under   wrong  Name — Jurisdiction.] — T.  was 

received  into  custody  from  the  Swedish  police  in 

Stockholm,  where  he  was  in  prison,  having  been 

arrested  under  the  name  of  D.,  under  which 

I  name  he  was  extradited.    D.  had  previously  been 


815 


FINES    AND    RECOVERIES    ACT. 


816 


connected  with  T.,  and  it  was  proved  that  T.  and 
D.  were  different  persons : — Held,  that  the  court 
having  jurisdiction  to  try  the  indictment,  it  was 
immaterial  under  what  name  T.  was  extradited. 
Reg.  v.  Finkelstein,  16  Cox,  C.  C.  107— Com. 
Serj. 


FACTOR. 

See  PRINCIPAL  AND  AGENT. 


FACTORY. 

See  MASTER  AND  SERVANT. 


FACULTY, 

See  ECCLESIASTICAL  LAW. 


FAIRS. 

See  MARKET. 


FALSE    PRETENCES. 

See  CRIMINAL  LAW. 


FALSE  IMPRISONMENT. 

See  MALICIOUS  PROSECUTION. 


FALSE  REPRESENTATION. 


See  FRAUD. 


FELONY. 

See  CRIMINAL  LAW. 


FENCE. 

Obligation  to  Railway  to  Fence.]— &«  Neg- 
ligence, II.,  2. 

In  Other  Caaes.]— See  Negligence,  IL,  4. 


FIDUCIARY   RELATION. 

Between  Promoters  and  Directors  and  Mem- 
bers of  Company.  ]—See  Company. 

Between  Principal  and  Agent.]— See  Princi- 
pal and  Agent. 

Between  Trustee  and  Cestui  que  trust  ]— Set 
Tbust  and  Trustee. 


FIERI    FACIAS. 

See  EXECUTION— SHERIFF. 


FINES    AND    RECOVERIES 

ACT. 

Acknowledgment  and  Examination  of  Married 
Woman.]— See  post,  Husband  and  Wife. 

Effect   of— Application  to  Rectify  Deed.]  — 

The  court  is  not  prohibited  by  the  Fines  and 
Recoveries  Act  (3  &  4  Will.  4,  c  74),  s.  47,  from 
exercising  its  ordinary  jurisdiction  to  rectify,  on 
the  ground  of  mistake,  a  deed  of  re-settlement 
which  has  been  enrolled  as  a  disentailing  assur- 
ance under  the  act.  Hall-Dare  v.  Hall-Bare, 
31  Ch.  D.  251 ;  55  L.  J.,  Ch.  154  ;  64  L.  T.  120  ; 
34  W.  R.  82— C.  A. 

Specific  Performance.]— The  jurisdiction 

which  the  courts  of  equity  had  prior  to  the  Fines 
and  Recoveries  Act  of  decreeing  specific  per- 
formance of  a  contract  by  a  tenant  in  tail  to  oar 
the  entail  by  ordering  him  to  levy  a  fine  or 
suffer  a  common  recovery  for  the  purpose,  and 
enforcing  the  order  as  against  the  tenant  in  tail 
personally  by  the  process  of  contempt,  has  not 
been  excluded  by  s.  47  of  the  Fines  and  Re- 
coveries Act,  and  the  court  can  still  as  against 
the  tenant  in  tail  himself  decree  specific  per- 
formance of  a  contract  to  execute  a  disentailing 
assurance,  although  the  contract  is  not  enforce- 
able as  against  the  succeeding  issue  in  tail. 
Banket  v.  Small,  36  Ch.  D.  716  ;  66  L.  J.,  Ch. 
832 ;  57  L.  T.  292  ;  35  W.  R.  765— C.  A, 

Disentailing  Assurance  —  Copy  holds  —  Fost- 
Knptial  Settlement] — A  feme  covert  entitled  to 
an  equitable  estate  tail  in  copyholds  at  B.  eie- 


r 


817 


FISH   AND    FISHERY. 


818 


I 


rated,  in  February,  1870,  a  deed  declaring  that 
rach  copyholds  should  be  held  in  trust  for  such 
penons  as  she  and  her  husband  should  jointly 
appoint,  and  in  default  for  herself  in  fee.    The 
deed  was   duly    acknowledged,  but   was    not 
entered  upon  the  court  rolls  of  the  manor  within 
ax  months  after  execution.    By  a  deed  of  settle- 
ment dated  in  March,  1870,  she  and  her  husband 
purporting  to  exercise  this  joint  power,  appointed 
the  copyholds  at  B.,  and  also  covenanted  to  sur- 
render those  and  other  copyholds  to  which  she 
was  entitled  in  fee,  to  trustees  upon  trust  to  sell, 
invest  the  proceeds,  and  hold  the  fund  (in  the 
events  which  happened)  for  her  for  her  separate 
use  for  life,  then  for  her  husband  for  life,  and 
then  for  her  children  other  than  her  eldest  son. 
No  sale  or  surrender  of  any  of  the  copyholds  was 
erer  made.    The  feme  covert  had  several  chil- 
dren, and  after  the  deaths  of  her  and  her  hus- 
band the  trustee  of  the  settlement  petitioned 
that  all  the  copyholds  might  vest  in  him  for  all 
the  estate  therein  of  the  eldest  son  and  customary 
heir,  who  was  an  infant ;  and  the  court  made  a 
Testing  order  according  to  the  prayer  of  the 
petition  : — Held,  first,  that  the  deed  of  February, 
1870,  being  a  mere  declaration  of  trust  by  the 
tenant  in  tail,  and  not  a  "disposition"  within 
the  Fines  and  Recoveries  Act,  was  inoperative 
as  an  assurance  to  bar  the  estate  tail  in  the 
copyholds  at  B.    Secondly,  that  in  concurrence 
with  Honeywood  v.  Foster  (30  Beav.  1)  and 
Gibbons  v.  Snape  (1  De  O.  J.  k  S.  621),  and  upon 
the  construction  of  the  statute,  that,  taking  s.  41, 
together  with  as.  50  and  53  of  the  Fines  and 
fieooveriee  Act,  a  disentailing  assurance  by  an 
equitable  tenant  in  tail  of  copyholds,  which  is 
not  entered  upon  the  court  rolls  of  the  manor 
within  six  months  after  execution,  is  void  ;  and 
consequently  that  the  power  of  appointment 
which  the  deed  of  February,  1870,  purported  to 
create  could  not  be  exercised.    Thirdly,  that  the 
settlement  of  March,  1870,  was  not  a  disposition 
by  the  feme  covert  within  the  Act,  and  could  not 
he  treated  either  as  an  assignment  of  her  equit- 
able interest  in  the  copyholds  or  as  a  valid  de- 
claration of  trust,  or  as  anything  more  than  a 
mere  covenant  to  surrender.     Green  v.  Paterson, 
32  Ch.  D.  95  ;  56  L.  J.,  Ch.  181  ;  54  L.  T.  738  ; 
34  W.  K.  724— C.  A. 


FIRE. 


Ianranee.]— See  Iksubance. 


FISH  AND   FISHERY. 

light  of  Crown  to  grant  to  8ubject— Exclu- 
•Wa  of  Owner  of  Soil.]— The  Crown  can  hold  a 
river-bed  throughout  a  manor  and  the  fishery  in 
the  mrer  flowing  over  the  same  as  parcel  of  the 
manor,  and  may  grant  the  manor  with  the  river- 
bed and  fishery  to  a  subject,  and  the  subject 
may  grant  the  banks  of  the  river  with  reserva- 


tion of  the  river-bed  and  fishery.  Dettmshire 
(Duke)  v.  Pattinson,  20  Q.  B.  D.  263  ;  57  L.  J., 
Q.  B.  189  ;  58  L.  T.  392  ;  52  J.  P.  276— C.  A. 

8almon— Bye-Law— Validity  of.]— By  sub-s. 
11  of  s.  39  of  the  Salmon  Fishery  Act,  1873, 
it  was  provided  that  a  board  of  conservators 
might  make  bye-laws  for  the  better  protection, 
preservation,  and  improvement  of  the  salmon 
fisheries  within  their  district,  to  regulate  during 
the  annual  and  weekly  close  seasons  the  use 
within  any  river  of  nets  for  fish  other  than 
salmon,  when  such  use  at  such  times  was  pre- 
judicial to  the  salmon  fisheries.  A  board  of  con- 
servators made  a  bye-law  that  it  should  not  be 
lawful  for  any  person  to  use  any  net  whatever 
inside  the  bar  in  any  public  water  of  their 
fishery  district,  except  a  trawl  net,  between  the 
1st  Dec.  and  the  30th  April,  both  inclusive. 
Upon  an  information  under  the  above  bye-law 
against  fishermen  for  using  a  draft  net  inside 
the  bar  in  a  public  water  of  the  said  fishery 
district  on  the  13th  April,  the  magistrates  found 
as  a  fact  that  trawl  nets  could  not  be  advan- 
tageously used  by  fishermen  in  that  part  of  the 
river,  and  that  certain  other  kinds  of  nets  could 
be  used  without  prejudice  to  the  salmon  : — 
Held,  that  the  said  bye-law  was  ultra  vires  and 
invalid,  and  that  the  conservators  had  no  power 
under  sub-s.  11  of  s.  39  of  the  Salmon  Fishery 
Act,  1873,  to  make  a  bye-law  which  was  not  a 
mere  regulation,  but  an  absolute  prohibition,  for 
a  definite  time,  of  the  use  of  nets  which  were 
not  prejudicial  to  the  salmon  fishery.  Pi  diet  v. 
Berry,  59  L.  T.  230  ;  53  J.  P.  6— D. 

Powers  of  Water-bailiff— Obligation  to 

produce  Appointment.]  —  A  water- bailiff  ap- 
pointed under  the  Salmon  Fishery  Acts,  1865, 
1873  (28  k  29  Vict.  c.  121,  and  36  k  37  Vict, 
c.  71),  is  bound  before  attempting  to  exercise 
his  power  of  searching  boats,  &c,  used  in  fishing 
to  produce  the  instrument  of  his  appointment. 
Barnacott  or  Parnacott  v.  Pass-more,  19  Q.  B.  D. 
75  ;  56  L.  J.,  M.  C.  99  :  35  W.  R.  812  ;  51  J.  P. 
821— D. 

Claim  of  Sight  to  Fish— Freeholder's  Bight- 
Custom  of  Manor.] — P.,  as  servant  of  a  free- 
holder, who  held  a  conveyance  of  the  manor  and 
the  right  of  fishery,  cut  the  nets  of  a  copyholder 
while  fishing.  P.,  on  being  summoned  for 
assault,  produced  the  conveyance,  but  no  evi- 
dence was  given  of  the  freeholder  ever  having 
exercised  the  right,  while  evidence  was  given 
that  all  copyholders  had  the  right  to  fish,  and 
had  exercised  it  for  50  years :— Held,  that  the 
justices  were  right  in  convicting  P.,  and  in  over- 
ruling the  claim  of  right  set  up  by  him  in  the 
name  of  his  master.  Priest  v.  Archer,  51  J.  P. 
725— D. 

Private  Fishery — "Any  Fish"— Unlawful 
Fishing.]— By  24  k  25  Vict,  c  96,  s.  24,  who- 
soever shall  unlawfully  take  or  destroy,  or 
attempt  to  take  or  destroy;  "  any  fish  "  in  any 
private  fishery  is  liable  on  conviction  to  a  penalty. 
The  respondent  took,  or  attempted  to  take, "  cray- 
fish "in  a  private  fishery : — Held,  that  he  had 
been  guilty  of  an  offence  under  this  section. 
Caygill  v.  Thwaite,  33  W.  R.  581  ;  49  J.  P.  614 

Evidence  of  Ownership.] — S.  was  charged 


819 


FIXTURES. 


820 


with  unlawfully  fishing  in  a  river  contrary  to 
24  &  25  Vict.  c.  96,  8.  24.  The  prosecutor  pro- 
duced a  lease  of  the  lands  executed  by  the  pre- 
ceding owner,  and  proved  execution  by  the 
lessee,  but  the  witness  of  the  lessor's  signature 
was  not  called.  The  lease  contained  an  express 
reservation  of  fishing  and  the  term  was  still 
current.  Both  the  original  lessor  and  lessee 
were  dead,  but  rent  had  been  received  and  paid 
under  the  lease  for  seven  years : — Held,  that 
there  was  sufficient  evidence  of  a  private  right 
of  fishing  without  producing  the  probate  of  the 
original  lessor's  will,  and  that  the  justices  ought 
to  convict.  Greenbank  v.  Sanderson,  49  J.  P.  40 
— D. 

Navigable  River— Norfolk  Broad.  ]— B. 

was  charged  under  24  &  25  Vict.  c.  96,  s.  24, 
with  unlawfully  taking  fish  in  a  private  fishery. 
The  water  was  part  of  a  Norfolk  broad  or  lake, 
35  miles  from  the  sea.  The  evidence  showed 
that  the  tide  did  not  reach  the  spot,  though 
occasionally  the  freshwater  was  backed  up  so  as 
to  rise  three  or  four  inches  when  there  was  a 
high  tide.  Anglers  had  occasionally  been  turned 
off  if  no  consent  of  the  adjoining  owners  had 
been  obtained  by  them  : — Held,  that  there  was 
sufficient  evidence  to  support  the  finding  of 
justices,  that  there  was  not  a  tidal  navigable 
river  where  the  public  had  a  right  to  fish,  but 
was  a  private  fishery ;  and  the  conviction  was 
held  right.    Blower  v.  EUU,  50  J.  P.  326— D. 

Exposing  Eels  for  Bale— Close  Season— Eels 
caught  out  of  England.] — The  4th  sub-s.  of  the 
11th  section  of  the  Freshwater  Fisheries  Act, 
1878,  which  forbids  the  sale  or  exposure  for 
sale  of  freshwater  fish  during  the  close  season, 
applies  to  fish  caught  beyond  the  limits  of 
that  part  of  the  United  Kingdom  to  which  the 
act  applies.  Price  v.  Bradley,  or  Bradley  v. 
Price,  16  Q.  B.  D.  148  ;  65  L.  J.,  M.  C.  53  ;  53 
L.  T.  816  ;  34  W.  R.  165  ;  50  J.  P.  160— D. 
See  now  49  Vict.  c.  2. 

Eating  Fishery.]— See  Poob  Law. 


FIXTURES. 

Eating.]— See  Poor  Law. 

First  Mortgage  of  Lands  and  Buildings— 
Second  Mortgage  of  same,  with  Ores,  8tock-in- 
Trade,  and  Chattels.]— The  S.  Company  carried 
on  the  business  of  manufacturing  zinc  and  spel- 
ter, sulphuric  acid,  and  zinc  oxide  on  leasehold 
premises.  They  had  erected  a  number  of  cupola 
and  other  furnaces  for  the  purposes  of  tneir 
manufacture,  which,  as  between  them  and  their 
landlords,  were  admitted  to  be  trade  fixtures. 
In  1880  the  company  conveyed  the  land  and 
buildings  comprised  in  its  lease  to  trustees  for 
debenture-holders  upon  trust  to  permit  the  com- 
pany to  carry  on  business  until  default  in  pay- 
ment of  the  debentures  or  winding-up,  and  then 
to  sell.  In  1883  the  company  executed  a  second 
mortgage  to  trustees  for  a  second  set  of  deben- 
ture-holders, which  comprised,  besides  the  land 
and  buildings,  all  stock-in-trade,  stock  of  ores, 


and  loose  plant  and  material.  It  appeared  that 
in  the  course  of  smelting  metals  for  the  com- 
pany's business  small  quantities  of  gold  and 
silver  were  given  off  in  the  form  of  vapour,  and 
became  imbedded  in  the  bricks  lining  the  fur- 
naces. The  company  having  been  ordered  to  he 
wound  up,  the  trustees  of  the  first  mortgage 
deed  entered  and  sold.  The  second  mortgagees 
took  out  a  summons  that  they  might  be  allowed 
to  enter  and  remove  the  gold,  silver,  and  other 
metal  embedded  in  the  said  bricks,  claiming 
that  it  was  included  in  their  mortgage,  and  not 
in  the  first.  It  was  admitted  that  the  metals 
could  not  be  extracted  without  pulling  down  the 
furnaces  and  pounding  up  some  of  the  bricks  :— 
Held,  that  the  doctrine  of  trade-fixtures  has  no 
application  as  between  mortgagee  and  mort- 
gagor ;  that,  whatever  might  have  been  the  caw 
between  landlord  and  tenant,  the  mortgagee 
was  entitled  to  everything  which  his  mortgagor, 
intentionally  or  not,  or  for  trade  purposes  or 
otherwise,  had  fixed  to  the  mortgaged  premises, 
and  the  summons  must  be  dismissed  with  costs. 
Tottenham  v.  Swansea  Zinc  Ore  Company,  52 
L.  T.  738— Pearson,  J. 

When   included  in  Mortgage.]— See  Most- 
gaok  (The  Contract). 

Bomoval  of  Machinery.]—^  Mines. 

Tenants*  Fixtures.]— &*    Landlord   ahi> 
Tenant. 


Assignment 
of  Sale,  L  1. 


of  — 


—See  Bills 


POOD. 

See  HEALTH. 


FORECLOSURE. 

See  MORTGAGE. 


FOREIGN    ENLISTMENT 

ACT. 

See  WAR. 


FOREIGN    JUDGMENTS. 

See  INTERNATIONAL   LAW. 


821 


FRAUD    AND    MISREPRESENTATION. 


822 


FOREIGN   LAW  AND 
FOREIGNER. 

See  INTERNATIONAL  LAW. 


FORFEITURE. 

leqiait  to  bo  forfeit**  on  Bankruptcy.  ]— See 
Will. 

Of  life  Interest  under  Marriage  Settlement.] 
See  Husband  and  Wife. 


Of 


.] — See  Landlord  and  Tenant. 


FORGERY. 

See  Criminal  Law. 


FRANCHISE. 

1.  Parliamentary. — See  Election  Law. 
1  Municipal. — See  Corporation. 


FRAUD  AND   MISREPRE- 
SENTATION. 

1.  Generally,  821. 

2.  Fraudulent  Conveyances. 

a.  Under  13  Eliz.  c.  5,  825. 

b.  Under  27  Eliz.  c.  4,  827. 

c.  Under  Bankruptcy  Act. — See  BANK- 

ruptcy, xl  3. 

1.  Generally. 

Misrepresentations  —Ambiguous  in  Moaning 
—Onus  of  Proof.] — In  an  action  for  deceit  the 
plaintiff  must  show,  first,  that  the  false  state- 
Beats  made  to  him  were  fraudulent ;  secondly, 
that  they  were  a  cause  inducing  him  to  act  to 
bis  prejudice.  Smith  v.  Ckadwick,  9  App.  Cas. 
187  ;  S3  L.  J.,  Ch.  873  ;  60  L.  T.  697  ;  32  W.  R. 
«7  ;  48  J.  P.  644— H.  L.  (E.). 

The  plaintiff  took  shares  in  a  company  formed 
to  buy  up  and  carry  on  certain  Ironworks.  The 
prospectus  contained  the  following  statement : 
— "  The  present  value  of  the  turnover  or  output 
of  the  entire  works  is  over  1,000,000/.  sterling 
per  annum."  The  works  never  had  produced 
in  actual  turnover  or  output  to  the  value  of 


1 ,000,000/.  in  any  year,  nor  wore  they  producing 
at  that  rate  at  the  date  of  the  prospectus,  but 
the  machinery  was  capable  of  turning  out  pro- 
duce to  that  amount  per  annum.  The  plaintiff 
was  asked  in  interrogatories  how  he  understood 
the  above  statement,  and  replied  that  he  under- 
stood the  meaning  "  to  be  that  which  the  words 
obviously  conveyed."  No  questions  were  asked 
as  to  this  at  the  hearing  in  examination  or  cross- 
examination  : — Held,  that  the  plaintiff  was  not 
entitled  to  recover.    lb. 

Held,  by  Lord  Selborne,  L.C.,  Lords  Black- 
burn and  Watson,  that  the  statement  was  ambi- 
guous, and  might  refer  to  the  output  which  the 
works  were  capable  of  producing ;  that  conse- 
quently the  burden  lay  upon  the  plaintiff  to  show 
that  he  understood  it  to  refer  to  the  actual  out- 
put, and  that  he  had  failed  to  show  this.    lb. 

Held,  by  Lord  Bramwell,  that  the  statement 
could  only  refer  to  the  actual  output,  and  that 
the  plaintiff  had  sufficiently  shown  that  he  so 
interpreted  it,  but  that  it  was  not  made  out  that 
the  statement  was  fraudulent  on  the  part  of  the 
defendants.    lb. 


Intention — Material  Inducement.  ]  —The 


directors  of  a  company  issued  a  prospectus  in- 
viting subscriptions  for  debentures,  stating  that 
the  property  of  the  company  was  subject  to  a 
mortgage  of  21,5001.,  but  omitting  to  state  a 
second  mortgage  of  5,000Z.  The  prospectus 
further  stated  that  the  objects  of  the  issue  of 
debentures  were — (1)  to  purchase  horses  and 
vans  ;  (2)  to  complete  alterations  and  additions ; 
(3)  to  supply  cheap  fish.  The  true  object  waa 
to  get  rid  of  pressing  liabilities.  The  plaintiff 
advanced  1,5002.  upon  debentures  under  the 
erroneous  belief  that  the  prospectus  offered  him 
a  charge,  and  would  not  have  advanced  his 
money  but  for  such  belief,  but  he  also  relied 
upon  the  false  statements  contained  in  the  pro- 
spectus as  to  the  financial  condition  of  the 
company : — Held,  that  the  misstatement  of  the 
objects  for  which  the  debentures  were  issued  was 
a  material  misstatement  of  fact,  influencing 
the  conduct  of  the  plaintiff,  and  rendered  the 
directors  liable  to  an  action  for  deceit,  although 
the  plaintiff  was  also  influenced  by  his  own  mis- 

!  take.    Edging  ton  v.  FUzmaurice,  29  Ch.  D.  459 ; 

1  55  L.  J.,  Ch,  '650 ;  53  L.  T.  369  ;  33  W.  R.  911  ; 

I  50  J.  P.  32— C.  A. 


Inference  of  Fact — Not  Presumption  of 


Law—44  Renewable  Lease.'1]  —  In  1869,  P.,  a 
member  of  a  firm  of  solicitors,  by  his  advice 
induced  the  plaintiff  to  invest  moneys  upon  the 
security  of  an  equitable  mortgage  of  a  lease 
which  he  represented  as  renewable,  and  wh'ich 
had  previously  been  renewed  by  custom  every 
fourteen  years,  but  the  future  renewal  whereof 
was  prohibited  by  statute  passed  in  1868.  In  1875 
P.  fraudulently,  and  without  the  knowledge  of  his 
partners,  gave  a  legal  mortgage  of  the  lease  to  a 
third  party  without  notice  of  the  plaintiff's 
mortgage.  The  security  proved  insufficient,  and 
P.  having  absconded,  the  plaintiff  sought  to 
make  P.'s  firm  liable  for  the  loss  sustained  by 
him  : — Held,  that  it  is  an  inference  of  fact,  and 
not  a  presumption  of  law,  that  if  a  material 
representation  calculated  to  induce  a  person  to 
enter  into  a  contract  is  made  to  him  he  waa 
thereby  induced  to  enter  into  the  contract. 
Dictum  of  Jessel,  M.  R.,  in  Redgrave  v.  Hurd 
(20  Ch.  D.  1,  21)  commented  on  and  explained. 


823 


FRAUD    AND    MISREPRESENTATION. 


824 


Hughe*  v.  TwUden,  55  L.  J.,  Ch.  481  ;  54  L.  T. 
570  ;  34  W.  R.  498— North,  J. 

Contract  induced  by — Beeciarion  of  Contract — 
Beetitutio  in  Integrum.] — The  respondent  was 
induced  by  misrepresentations  made  without 
fraud  by  the  appellants  to  become  a  partner  in 
a  business  which  either  belonged  to  them  or  in 
which  they  were  partners  and  which  was  in  fact 
insolvent.  The  business  having  afterwards,  owing 
to  its  own  inherent  vice,  entirely  failed  with 
large  liabilities  : — Held,  that  the  respondent  was 
entitled  to  rescission  of  the  contract  and  repay- 
ment of  his  capital,  though  the  business  which 
he  restored  to  the  appellants  was  worse  than 
worthless,  and  that  the  contract  being  rescinded 
the  appellants  could  not  recover  against  him  for 
money  lent  and  goods  sold  by  them  to  the 
partnership.  Adam*  v.  Xewbigging,  13  App. 
Cas.  308 ;  57  L.  J.,  Ch.  1066  ;  59  L.  T.  267  ; 
37  W.  R.  97—H.  L.  (E.). 

Repudiation  or  Affirmation  of  Contract.] — A 

solicitor  took  money  of  his  client's,  and  pretended 
to  have  invested  it  upon  four  mortgages.  After 
his  death  it  was  discovered  that  three  of  these 
mortgages  were  absolutely  valueless,  and  the 
client  took  no  steps  an  regards  them.  He  brought 
an  action  to  enforce  the  other,  which  resulted  in 
a  compromise  out  of  which  he  obtained  part  of 
the  money  due  : — Held,  that  as  regards  this  last 
one  he  had  affirmed  the  contract,  and  could  not 
now  repudiate  the  mortgage,  but  as  regards  the 
other  three  he  could.  Murray,  In  re,  Bick*on 
v.  Murray,  57  L.  T.  223— Stirling,  J. 

Effect  of,  when  Interest  of  Third  Parties  has 
intervened.] — B.  for  the  purpose  of  enabling  a 
company  to  have  a  fictitious  credit  in  case  of 
inquiries  at  their  bankers,  placed  money  to  their 
credit,  which  they  were  to  hold  in  trust  for  him. 
tiome  of  the  money  having  been  drawn  out  with 
B.'s  consent,  and  the  company  having  been 
ordered  to  be  wound  up  while  a  balance  re- 
mained : — Held,  that  B.  could  not  claim  to  have 
the  balance  paid  to  him.  Great  Berlin  Steam- 
boat Company,  In  re,  26  Ch.  D.  616  ;  54  L.  J., 
Oh.  68;  51  L.  T.  445— C.  A. 

Duty  of  Inquiry — Simplex  Commendatio.] — 

The  plaintiffs  advertised  for  sale  by  auction  an 
hotel,  stated  in  the  particulars  to  be  held  by  a 
"  most  desirable  tenant."  The  defendants  sent 
their  secretary  down  to  inspect  the  property  and 
report  thereon.  The  secretary  reported  very 
unfavourably,  stating  that  the  tenant  could 
scarcely  pay  the  rent  (400Z.),  rates  and  taxes. 
The  defendants,  relying  on  the  statements  in  the 
particulars,  authorized  the  secretary  to  attend 
the  sale  and  to  bid  up  to  5,0O0Z.  The  property 
was  bought  in  at  the  sale,  and  the  secretary 
purchased  it  by  private  contract  for  4,700/.  It 
appeared  subsequently  that  the  quarter's  rent 
previously  to  the  sale  had  not  been  paid ;  the 
previous  quarter  had  been  paid  by  instalments, 
and  six  weeks  after  the  sale  the  tenant  filed  his 
petition.  It  appeared,  however,  that  the  hotel 
business  was  as  good  during  the  last  year  as 
previously,  and  that  the  month  of  the  tenant's 
failure  was  the  best  he  had  had.  The  plaintiffs 
brought  an  action  for  specific  performance, 
relying  (in  answer  to  the  defence  and  counter- 


claim for  rescission  on  the  ground  of  misrepre- 
sentation) on  the  fact  that  the  defendants  had 
made  their  own  inquiries  : — Held,  that  the  state- 
ment that  the  property  was  held  by  a  "  most 
desirable  tenant "  was  not  a  mere  expression  of 
opinion,  but  contained  an  implied  assertion  that 
the  vendors  knew  of  no  facts  leading  to  the  con- 
clusion that  he  was  not ;  that  the  circumstances 
relating  to  the  payment  of  rent  showed  that  he 
was  not,  and  that  there  was  a  misrepresentation. 
Smith  v.  Land  and  Hou*e  Property  Corporation, 
28  Ch.  D.  7  ;  51  L.  T.  718  ;  49  J.  P.  182— C.  A 

Effect  of,  in  Particulars,  etc.,  on  Sale  of 
Land.]— Sec  Vendor  and  Purchases. 

"Legal  Fraud."]  —  The  expression  "legal 
fraud "  considered  and  explained.  Peek  t. 
Berry,  37  Ch.  D.  541  ;  57  L.  J.,  Ch.347  ;  59  LT. 
78  ;  36  W.  R.  899— C.  A.  See  S.  C.  in  H.  I*,  3J 
S.  J.  589. 

Marriage  Settlement— Fraud  before  Marriage.] 
— In  an  action  to  set  aside  a  marriage  settlement, 
the  plaintiff  alleged,  as  the  ground  of  his  actios, 
that  previous  to  the  execution  of  the  settlement 
made  upon  the  marriage  between  himself  and 
I.  S.,  the  latter  stated  to  him  that  her  first  hus- 
band had  been  divorced  from  her,  at  her  suit,  by 
reason  of  his  cruelty  and  adultery,  and  that  she 
had  not  herself  been  guilty  of  adultery;  that 
such  statements  were  made  to  induce  him  to 
execute  the  settlement  and  contract  the  marriage, 
that  in  reliance  on  the  representations,  he  exe- 
cuted the  settlement  and  married  I.  S. ;  that  he 
subsequently  discovered  that  the  representations 
were  false  to  the  knowledge  of  I.  S.,  and  that 
she  herself  had  been  divorced  from  her  husband 
at  his  suit  and  by  reason  of  her  adultery  :— Held, 
on  motion  by  the  defendant,  that  the  plaintiff's 
statement  of  claim  must  be  struck  out  under 
Ord.  XXV.  r.  4  as  disclosing  no  reasonable 
ground  of  action.  John/ft  on  v.  Johntton,  53 
L.  J.,  Ch.  1014 ;  51  L.  T.  537  ;  32  W.  R.  1016- 
Pearson,  J.    Affirmed  52  L.  T.  76  ;  33  W.  R.  239 

Valuer  —  Mortgage  —  Action  by  Mortgagee 
for  Mif representation.  ] — An  intending  mort- 
gagor, at  the  request  of  the  solicitors  of  an 
intending  mortgagee,  applied  to  a  firm  of  valoen 
for  a  valuation  of  the  property  proposed  to  be 
mortgaged.  A  valuation  at  the  sum  of  3,0001. 
was  sent  in  by  the  valuers  direct  to  the  mort- 
gagee's solicitors,  and  the  mortgage  was  subse- 
quently carried  out.  Default  having  been  made 
in  payment  by  the  mortgagor,  and  a  loss  having 
resulted  to  the  mortgagee,  he  commenced  an 
action  against  the  valuers  for  damages  for  the 
loss  sustained  through  their  negligence,  misre- 
presentation, and  breach  of  duty.  The  court 
being  satisfied  on  the  evidence  that  the  defen- 
dants knew  at  the  time  the  valuation  was  made 
that  it  was  for  the  purpose  of  an  advance,  and 
that  the  valuation  as  made  was  in  fact  no  valu- 
ation at  all : — Held,  that,  under  the  circum- 
stances, the  defendants  were  liable  on  two 
grounds  :  (1),  that  they  (independently  of  con- 
tract) owea  a  duty  to  the  plaintiff  which  they 
had  failed  to  discharge  ;  (2),  that  they  bad  made 
reckless  statements  on  which  the  plaintiff  bad 
acted.  George  v.  Skivington  (5  L.  R.,  Ex.  1),  and 
Heaven  v.  Pender  (11  Q.  B.  D.  503),  followed; 
Peek  v.  Berry  (37  Ch.  D.  541)  discussed.    Ca** 


325 


FEAUD    AND    MISREPRESENTATION. 


826 


t.  WUUtm,  39  Ch.  D.  39  ;  57  L.  J.,  Ch.  1034  ;  37 
W.  R.  23— Chitty,  J. 

Concealment  of  Fraud — Statute   of  Limita- 
tiau.]—Sce  Limitation,  Statutes  of. 


2.  Fraudulent  Conveyances. 
a.  Under  18  Ella.  o.  6. 

latent  to  "delay,  hinder,  or  defraud 
Creditors."] — A  master  mariner  was  married  at 
flong  Kong  on  May  31, 1881.  In  the  following 
August,  an  action  for  breach  of  promise  of 
marriage  was  commenced  against  him,  and  the 
writ  served  upon  him  at  Hong  Kong  on  October 
8.  At  the  time  of  his  marriage  he  was  entitled 
to  a  legacy  of  600/.,  which  had  become  vested  in 
possession  on  the  death  of  his  mother  (who  had 
%  life  interest  in  it)  on  May  11, 1881.  On  October 
17, 1881,  being  still  at  Hong  Kong,  he  made  a 
voluntary  settlement  of  the  legacy  upon  trust 
during  the  joint  lives  of  himself  and  his  wife  for 
her  se]iarate  use,  remainder  for  the  survivor  for 
life,  remainder  for  the  children  of  the  marriage, 
remainder,  in  default  of  children,  for  himself 
absolutely.  Judgment  was  obtained  against 
him  in  the  action  on  July  20,  1882,  for  5002., 
scd  in  November,  1884,  he  was  adjudicated 
bankrupt.  It  appeared  that  when  he  executed 
the  settlement  he  was  able  to  pay  his  debts 
without  the  aid  of  the  property  comprised  in  the 
settlement,  and  that  he  did  not  know  that  he 
ww  entitled  to  the  legacy  until  a  few  days 
before  he  executed  the  settlement,  and  he  stated 
that  in  executing  it  he  was  not  influenced  by 
the  action  which  had  been  commenced  against 
him : — Held,  that  there  was  not  sufficient  evi- 
dence to  warrant  a  judge  or  jury  in  finding  that 
the  settlement  was  intended  to  "  delay,  hinder, 
or  defraud  creditors"  within  13  Eliz.  c.  5. 
Freeman  v.  Pope  (5  L.  R.,  Ch.  538)  con- 
sidered. Mercer,  Ex  parte,  WUe,  In  re,  17  Q. 
B.  D.  290 ;  66  L.  J.,  Q.  B.  558  ;  54  L.  T.  720— 
CA. 

8L,  a  retail  trader,  being  in  difficulties,  by 
deeds,  dated  July,  1882,  assigned  to  C,  wholesale 
manufacturers,  to  whom  he  was  indebted,  all  his 
stock-in-trade,  effects,  fcc.,  together  with  the 
premises  on  which  the  business  was  carried  on — 
such  assignment  comprising  substantially  the 
whole  of  his  property  ;  and  by  an  agreement  of 
the  same  date  S.  agreed  to  carry  on  the  business 
in  his  own  name  as  servant  of  C.  and  he  continued 
to  carry  it  on  as  the  apparent  owner,  although 
really  acting  nnder  the  directions  of  C,  until 
March,  1883,  when  he  was  adjudicated  a 
bankrupt.  The  assignment  was  expressed  to  be 
made  in  consideration  of  a  debt  of  3,271/.  then 
due  from  S.  to  C,  which  C.  thereby  released. 
There  was  a  contemporaneous  verbal  agreement 
between  S.  and  G.  that  C.  should  undertake  the 
payment  of  S.'s  other  creditors,  but  whether  all 
or  only  his  trade  creditors  did  not  appear.  At 
the  date  of  the  assignment  the  only  debt  due 
from  6.  to  C.  was  1,370/.,  but  all  H.'s  debts,  so 
far  as  they  could  be  ascertained,  amounted  to 
3,271/.  C,  either  immediately  before  or  after 
the  execution  of  the  assignment,  paid  out  some 
executions  for  8.,  and  also  some  arrears  of  rent 
due  from  him  to  his  landlord,  and  subsequently 
made  advances  and  supplied  goods  for  the  pur- 
poses of  the  business.  C.,  however,  notwithstand- 


ing the  verbal  agreement,  did  not  pay  or  give 
any  security  to  a  creditor  of  S.  who  was  pressing 
him,  but  induced  6.  himself  to  give  a  promissory 
note  in  his  own  name  for  his  debt : — Held,  that 
the  deed  was  clearly  void  under  the  statute  of 
Elizabeth.  Chaplin,  Ex  parte,  Sinclair,  In  re, 
26  Ch.  D.  319 ;  63  L.  J.,  Ch.  732 ;  51  L.  J.  345 
— C.  A.  See  also  Godfrey  v.  Poole,  post.  col. 
828. 

Intention  to  defeat  particular  Creditor.] — It 
is  a  fraud,  within  10  Chas.  1  (Ir.),  sess.  2,  c.  3, 
s.  10,  for  a  debtor  without  consideration,  and 
with  intent  to  defraud  or  delay  a  particular 
creditor,  to  part  with  any  portion  of  his  property. 
Wood  v.  Dixie  (7  Q.  B.  892)  explained  and 
distinguished.  [10  Chas.  1  (Ir.)  sess.  2,  c.  3,  s.  10 
is  equivalent  to  13  Eliz.  c.  5.]  Moroney,  In  re, 
21  L.  R.,  It.  27— C.  A. 

Ante-nuptial  Settlement  —  Void  as  against 
Creditors.] — Although  a  woman  may  know  that 
a  man  is  in  embarrassed  circumstances  and  that 
her  marrying  him  at  the  time  may  be  of  service 
to  him  and  preserve  his  property,  if  nevertheless 
her  object  in  marrying  him  is  not  solely  for  the 
purpose  of  preserving  his  property,  but  for  the 
ordinary  reason b  which  lead  men  and  women  to 
take  that  position  with  regard  to  each  other,  an 
ante-nuptial  settlement  executed  by  the  husband 
will  not  be  void.  But  where  the  marriage  is  not 
an  honest  marriage  and  is  entered  into  solely 
for  the  purpose  of  attempting  to  make  a  settle- 
ment valid  which  otherwise  would  be  void,  and 
where,  but  for  a  desire  to  defraud  the  creditors 
no  marriage  between  the  two  parties  would  have 
taken  place,  the  ante-nuptial  settlement  will  be 
set  aside.  Thus  where  a  man  executed  an  ante* 
nuptial  settlement  and  married  a  woman  with 
whom  he  had  had  an  immoral  intimacy,  and  the 
evidence  showed  that  such  marriage  was  entered 
into  solely  with  intent  to  defraud  his  creditors, 
the  wife  being  implicated  in  the  transaction  : 
— Held,  that  the  settlement  was  fraudulent  and 
void  as  against  the  creditors.  Cooper,  Ex  partey 
Pennington,  In  re,  59  L.  T.  774  ;  5  M.  B.  R.  216 
—Cave,  J.    Affirmed  6  M.  B.  R.  268— C.  A. 

Both  Parties  to  Fraud.]— To  avoid  an 

ante-nuptial  marriage  settlement  as  a  fraud 
upon  creditors  it  must  be  shown  that  both  hus- 
band and  wife  were  parties  to  the  fraud.  Pa  rnell 
v.  Stedman,  1C.4B.  153— Cave,  J. 

Good  Consideration— Wife  giving  up  Equity  to* 
a  Settlement.] — H.  was  married  to  his  wife  in 
1864,  and  she  subsequently  became  entitled  to 
certain  moneys  under  the  wills  of  her  father 
and  grandfather.  These  moneys  she  lent  to  her 
husband  for  the  purposes  of  his  business,  upon 
the  terms  that  he  would  execute  a  settlement  of 
the  moneys  upon  her,  which  was  done.  Upon 
the  bankruptcy  of  H.  a  proof  was  tendered  upon 
the  settlement  and  rejected  on  the  ground  that 
this  deed  was  voluntary  within  the  terms  of  the 
statute  13  Eliz.  c.  5  : — Held,  that  the  settlement 
was  not  covinous  or  fraudulent  within  the  13 
Eliz.  c.  5,  and  that  there  had  been  a  good  con- 
sideration by  reason  of  the  fact  that  the  wife 
had  waived  her  equity  to  a  settlement.  Semble, 
that  the  transaction  was  upheld  on  the  ground 
of  bona  fides,  and  that,  if  the  court  had  found 
that  the  intention  of  the  parties  had  been  that 
the  settlement  should  make  the  husband  abso^ 


S27 


FRAUD    AND    MISREPRESENTATION. 


828 


late  owner,  and  at  the  same  time  secure  the 
moneys  to  the  wife,  it  would  have  declared  the 
settlement  void  as  a  fraud  on  the  bankruptcy 
law.  Home,  In  re,  Home,  Ex  parte,  54  L.  T. 
301— Cave,  J. 

Action  by  Creditor  —  Debt  under  GO/.]  —  A 
trader  insured  his  stock-in-trade  and  other  effects. 
These  were  destroyed  by  fire.  He  assigned  the 
policies  to  trustees  on  trust,  to  pay  and  divide 
the  moneys  raised  thereunder  among  all  his 
creditors  rateably,  and  to  pay  the  balance  (if 
any)  to  himself : — Held,  that  the  assignment 
was  not  void  under  13  Eliz.  c.  5,  at  the  suit  of 
a  creditor  whose  debt  was  under  50/.  Green  v. 
Brand,  1  C.  &  E.  410— Lopes,  J. 

Laches,  Effect  ot]  —  A  specialty  creditor 
brought  an  action  to  set  aside  a  conveyance  as 
fraudulent  under  13  Eliz.  c.  5,  nearly  ten  years 
after  the  death  of  the  grantor.  The  plaintiff 
had  been  aware  of  the  facts  during  the  whole  of 
that  period,  and  gave  no  satisfactory  reason  for 
his  delay  :  —  Held,  that  as  the  plaintiff  was 
coming  to  enforce  a  legal  right,  his  mere  delay 
to  take  proceedings  was  no  defence,  as  it  had 
not  continued  long  enough  to  bar  his  legal  right, 
the  case  standing  on  a  different  footing  from  a 
unit  to  set  aside  on  equitable  grounds  a  deed 
which  was  valid  at  law.  Maddever,  In  re,  Three 
Town*  Banking  Company  v.  Maddever,  27  Ch.  D. 
.623 ;  53  L.  J.,  Ch.  998 ;  52  L.  T.  35  ;  33  W.  R. 
286— C.  A. 

b.  Under  27  Ells.  o.  4. 

Post-Huptial  Settlement  —  Leaseholds.]  —  A 
-corporation,  in  consideration  of  a  fine  paid, 
granted  a  lease  of  a  house  for  forty  years  from 
Michaelmas,  1 856,  at  a  yearly  rent  of  5*.  6d.,  and 
subject  to  covenants  for  payment  of  rent,  rates, 
and  taxes,  and  to  repair,  maintain,  and  yield  up 
the  premises.  The  lease  was  assigned  to  L.,  who, 
in  1865,  in  consideration  of  natural  love  and 
affection,  assigned  the  same,  together  with  other 
property,  to  trustees  for  his  wife  for  her  separate 
use.  Notwithstanding  this  settlement,  L.  re- 
mained in  possession  of  the  leasehold  premises, 
and  in  1870  he  surrendered  the  lease  to  the 
•corporation,  and.  in  consideration  of  a  fine  paid, 
procured  a  new  lease  to  be  granted  to  him  in  his 
own  name.  He  afterwards  died: — Held,  that 
in  taking  the  new  lease  L.  acted  for  the  benefit 
of  his  wife  and  as  agent  for  her  and  the  trustees 
of  the  settlement,  and  that,  although  there  was 
no  written  declaration  of  trust  of  the  new  lease, 
such  lease  was  "  by  operation  of  law  "  subject  to 
the  trusts  of  the  settlement  declared  in  respect 
of  the  old  lease.  Lulham,  In  re,  Brinton  v. 
Lulham,  53  L.  T.  9  ;  33  W.  B.  788— C.  A.  Arnrm- 
ing  63  L.  J.,  Ch.  928— Kay,  J. 

Quiere,  whether  the  surrender  of  the  old  lease 
was  a  "  conveyance  "  within  s.  1  of  27  Elix.  c.  4, 
which  would  prevail  over 'the  previous  settle- 
ment, assuming  such  settlement  to  be  a  volun- 
tary conveyance  within  the  same  statute.    lb. 

A  married  woman,  having  become  entitled 
under  a  will  to  freehold  and  leasehold  property 
for  her  sole  and  separate  use,  joined  her  husband 
in  making  a  settlement,  whereby  the  husband 
and  wife  conveyed  the  freeholds,  and  the  hus- 
band alone  demised  the  leaseholds,  subject  to  the 
annual  payment  of  a  shilling,  if  demanded,  to 
trustees,  upon  trust  for  the  wife  for  her  separate 


use  for  life,  remainder  to  the  husband  for  life, 
remainder  for  the  children  (if  any),  with  ulti- 
mate remainder  to  the  wife  absolutely.  Two 
years  afterwards  the  husband  and  wife  (there 
being  no  children  of  the  marriage)  made  a  mort- 
gage of  the  property : — Held,  that  the  convey- 
ance by  the  husband,  though  binding  on  the 
estate  by  the  curtesy  which  he  would  have  had 
in  his  wife's  freeholds  if  there  had  been  issue,  in 
the  absence  of  any  conveyance  by  her,  was  not 
sufficient  to  raise  a  consideration  moving  from 
the  husband ;  and  that  the  settlement  was  Tolnn- 
tary  and  void  under  the  statute  as  against  the 
mortgagee.  Shurmur  v.  Sedgwick,  Croujidd  t. 
Shurmur,  24  Ch.  D.  697  ;  53  L.  J.,  Ch.  87 ;  49 
L.  T.  156  ;  31  W.  R.  884— V.-C.  B. 

Post-Huptial  Settlement  of  Lands— Tmiti  tor 
Children  of  Marriage — Mortgage.] — By  a  post- 
nuptial settlement,  lands,  of  which  the  wife, 
before  the  marriage,  had  been  seised  in  fee, 
were  settled,  subject  to  successive  life  estates 
for  husband  and  wife,  upon  the  children  of 
the  marriage,  reserving  to  the  husband  and 
wife  power  of  revocation,  and  power  to  charge 
the  lands  with  1,000Z.  The  husband  and  wife 
executed  a  subsequent  settlement,  in  conveying 
the  lands  in  trust  for  the  wife  for  her  separate 
use  during  their  joint  lives,  and,  subject  thereto, 
and  to  an  annuity  for  the  survivor,  in  trust  for 
the  children  of  the  marriage.  Afterwards  both 
husband  and  wife  purported  to  mortgage  the 
lands  in  fee.  There  were  children  of  the  mar- 
riage who,  after  the  death  of  their  parents,  the 
mortgagors,  contended  that  the  mortgage  only 
affected  the  life  estate  limited  to  their  mother 
by  the  second  settlement : — Held,  that  the  settle- 
ments were  deeds  for  value,  so  that  the  mortgage 
could  not  prevail  against  the  estates  in  remainder 
of  the  children  of  the  marriage ;  also  that  the 
second  settlement,  operating  as  a  revocation  of 
the  first,  extinguished  the  general  power  to 
charge  1,000/.  thereby  reserved.  BelVt  EttaU, 
In  re,  11  L.  R.,  Ir.  512 — Land  Judges. 

Voluntary  Conveyance  irrevocable  —  Subse- 
quent Pnxohaser  for  Value.] — Where  a  debtor 
conveyed  all  his  real  estate  upon  trust  to  sell 
and  pay  off  his  debts,  and  as  to  any  ultimate 
surplus  to  pay  the  same  to  trustees  to  be  held 
by  them  in  trust  for  the  separate  use  of  his 
wife  for  life,  and  after  her  decease  in  trust  for 
their  children  in  equal  shares  as  tenants  in 
common  : — Held,  in  a  suit  by  a  subsequent  par- 
chaser  for  value  (at  a  sale  in  execution)  of  the 
grantor's  interest  in  some  lands  comprised  in 
the  conveyance :  (1)  That  the  deed  of  convey* 
ance  was  not  revocable,  there  being  an  ultimate 
trust  for  the  benefit  of  wife  and  children ;  (2) 
That  it  was  not  void  as  intended  to  delay  or 
defeat  creditors ;  (3)  That,  not  being  fraudulent 
in  fact,  it  was  not  fraudulent  in  law  and  void 
against  creditors  under  13  Eli*,  c  5,  no  inten- 
tion to  delay  or  defeat  creditors  being  shown ; 
(4)  That  it  was  not  void  under  27  Elix.  c.  4,  as 
against  a  purchaser  for  value  under  the  Hew 
South  Wales  District  Courts  Act,  1858,  ss.  78  and 
79.  The  subsequent  sale  for  value  not  being  by 
the  voluntary  grantor,  no  presumption  arose  that 
the  prior  grant  was  fraudulent.  Godfrey  v.  /Wf, 
13  App.  Cas.  497  ;  57  L.  J.,  P.  C.  78 ;  58  L.T. 
686  ;  37  W.  R.  367— P.  C. 

Settlement  by  Widower— Limitation  to  tnt 


m 


FRIENDLY    SOCIETY. 


830 


TOrt  Children — Subsequent  Mortgage.]— The 
principle  that  the  children  of  a  widow  by  a 
former  marriage  taking  under  a  settlement  made 
<n  her  second  marriage  are  not  to  be  treated  as 
Tolnnteers,  does  not  extend  to  the  case  of  the 
children  of  a  widower.  Cameron  and  Wells,  In 
re,  37  Cb.  D.  32 ;  57  L.  J.,  Ch.  69  ;  57  L.  T.  645  ; 
»W.R.5— Kay,  J. 

By  a  settlement  made  on  the  second  marriage 
of  a  widower,  land  belonging  to  him  was  con- 
veyed in  trust  for  his  children  by  a  first  marriage 
ibfolately,  and  personalty  belonging  to  the  wife 
was  settled  on  her  absolutely.  The  husband 
afterwards  mortgaged  the  land : — Held,  that  the 
settlement  was  Toluntary  as  regards  the  children 
of  the  husband,  and  that  by  27  Eliz.  c.  4,  the 
limitation  in  their  fayour  was  void  as  against 
the  mortgagee.    lb. 

(tasideration— Bargain  between  the  Parties.] 
—In  an  action  for  specific  performance  of  an 
agreement  to  sell  certain  freehold  property,  a 
question   arose   as    to  whether  a  post-nuptial 
cttiement  was  void  under  27  Eliz.  c.  4,  as 
bong  a  voluntary  settlement.      Previously  to 
the  settlement  the  property  had  been  settled  on 
the  wife  for  life,  with  remainder  to  the  husband 
in  fee,  and  the  wife  was  absolutely  entitled  to 
a  one-seventh  share  of  certain  other  property. 
The  settlement  contained  a  recital  in  the  follow- 
ing words:  "Whereas  the  said  J.  D.  and  E.  D. 
are  desirous  that  the  hereinbefore-recited  deed- 
poll  should  be  altered,  and  that  the  property 
thereby  settled  should  be  re-settled  as  herein- 
after appearing,  and   also  that  the  said  one- 
seventh  share  of    the   said   hereditaments   at 
Whitechapel,  so  as  aforesaid  vested  in  the  said 
E.  D.,  should  be  included  in  the  new  settlement 
intended  to  be   hereby  made,"  and    the  wife 
purported  to  revoke  the  deed-poll  mentioned, 
sad  to  join  with  the  husband  in  re-settling  the 
property  upon  trusts,  giving  the  husband  a  life- 
nterest  in  the  whole  after  her  decease,  and 
•object  thereto  upon  trust  for  third  parties : — 
Held,  that  there  was  clear  evidence  of  a  bargain 
between  the  parties,  and  that,  as  both  husband 
and  wife  gave  up  something  in  order  to  make  a 
resettlement,  the  settlement  was  not  voluntary 
within  the  statute.  Sehreiber  v.  Dinhel,  54  L.  T. 
«1-C.  A.  Affirming  54  L.  J.,  Ch.  241— North,  J. 


FRAUDS,   STATUTE    OF. 

See  CONTRACT— SALS. 


FREIGHT. 

See  SHIPPING. 


FRIENDLY  SOCIETY. 

What  is.]— -A  society  is  a  friendly  society 
under  the  Friendly  Societies  Act,  1875,  s.  8, 
although  it  may  not  include  in  its  objects  all 
the  objects  there  stated,  provided  its  objects  are 
substantially  the  same-  as  those  in  the  act. 
Knowles  v.  Booth,  32  W.  R.  432— D. 

Registration— Companies  Act,  1862,  s.  4.J— 

A  society  which  has  been  registered  under  s.  8, 
sub-s.  5,  of  the  Friendly  Societies  Act,  1875, 
pursuant  to  the  special  authority  of  the  Treasury, 
is  excepted  from  the  provisions  of  s.  4  of  the 
Companies  Act,  1862.  Peat  v.  Fowler,  65  L.  J., 
Q.  B.  271 ;  34  W.  R.  866— D. 

Whether  a  Charity.]— See  Pease  v.  Pattinson, 
ante,  col.  308. 

Jurisdiction  of  County  Court— Amalgamation 
— Dispute  as  to  Provision.]  —  The  committee 
of  a  friendly  society  having  agreed  for  the 
amalgamation  of  the  society  with  another  com- 
pany, summoned  a  general  meeting  in  order  to 
pass  a  special  resolution  for  carrying  the  amal- 
gamation into  effect.  Some  of  the  members, 
who  were  dissatisfied  with  the  provision  pro- 
posed to  be  made  for  the  satisfaction  of  their 
claims,  filed  a  plaint  in  the  county  court  to 
restrain  the  society  from  carrying  into  effect 
the  amalgamation,  and  obtained  a  receiver  of 
the  assets  of  the  society,  although  the  resolution 
for  amalgamation  had  not  then  been  passed. 
The  public  officer  of  the  society  applied  for  a 
writ  of  prohibition  to  restrain  the  proceedings 
in  the  county  court: — Held,  that  the  county 
court  had  no  jurisdiction  to  interfere  with  the 
action  of  the  society  until  the  special  resolution 
had  been  passed  and  confirmed,  and  a  writ  of 
prohibition  was  ordered  to  issue.  Jones  v.  Slee, 
32  Ch.  D.  585  ;  55  L.  J.,  Ch.  908  ;  55  L.  T.  129  ; 
34  W.  R.  692  ;  51  J.  P.  83— C.  A. 

Dispute  between  Society  and  Member — 

Appeal  from  Branch  to  Society.]  —  By  the 
Friendly  Societies  Act,  1875  (38  &  39  Vict. 
c.  60),  s.  22,  disputes  between  members  of  a 
registered  friendly  society  and  the  society  are 
to  be  decided  in  manner  directed  by  the  rules 
of  the  society.  By  sub-s.  (<£),  where  no  decision 
is  made  on  a  dispute  within  forty  days  after 
application  to  a  society  for  a  reference  under 
its  rules,  the  member  or  person  aggrieved  may 
apply  to  the  county  court,  which  may  hear  and 
determine  the  matter  in  dispute.  A  member 
of  a  branch  of  a  friendly  society,  having  been 
excluded  therefrom  by  the  branch  committee, 
appealed,  under  the  rules  of  the  branch,  to  the 
general  committee  of  the  society,  who  failed 
to  decide  the  dispute  within  forty  days  after 
application : — Held,  that  the  appeal  was  a 
"  reference "  within  the  meaning  of  the  sub- 
section, and  that  a  county  court  had  juris- 
diction to  hear  and  determine  the  matter  in  dis- 
pute. Reg.  v.  Cattley,  or  Reg.  v.  Northampton 
County  Court  Judge,  19  Q.  B.  D.  491  ;  57  L.  T. 
108  ;  35  W.  R.  717  ;  52  J.  P.  38— D. 

Right  of  Appeal— Rules.]— In  the  case 

of  an  unregistered  society  under  s.  30,  sub-s.  10 
of  the  Act  of  1875  (explained  by  42  Vict.  c.  9), 


831 


GAME. 


832 


the  right  of  appeal  to  a  county  court  or  court  of 
summary  jurisdiction  overrides  any  rules  of  the 
society  to  the  contrary.  Knowles  v.  Booth, 
32  W.  R.  432— D. 


4 *  Application  to  County  Court."]  — By 


s.  22  of  the  Friendly  Societies  Act,  1875,  dis 
putes  between  members  of  a  friendly  society 
and  the  society  or  its  officers  are  to  be  decided 
in  manner  directed  by  the  rules  of  the  society, 
and  by  sub-s.  (d).  "  where  the  rules  contain  no 
direction  as  to  disputes,  or  where  no  decision 
is  made  on  a  dispute  within  forty  days  after 
application  to  the  society  for  a  reference  under 
its  rules,  the  member  or  person  aggrieved  may 
apply  either  to  the  county  court,  or  to  a  court 
of  summary  jurisdiction,  which  may  hear  and 
determine  the  matter  in  dispute  "  : — Held,  that 
the  application  to  the  county  court  contemplated 
by  sub-s.  (rf)  must  be  taken  to  be  an  application 
in  the  form  of  an  action  commenced  in  the 
county  court,  and  not  a  reference  to  the  county 
court  judge  sitting  as  an  arbitrator,  and  that 
there  was  an  appeal  from  the  decision  upon 
such  application  to  the  High  Court.  Wilkinson 
v.  Jogger,  20  Q.  B.  D.  423  ;  57  L.  J.,  Q.  B.  254  ; 
58  L.  T.  487 ;  36  W.  R.  169  ;  52  J.  P.  533— D. 
[See  Schofield  v.  Vause,  36  W.  R.  170,  n.— C.  A.] 


Certiorari.]  —  The    provisions    in    the 


Friendly  Societies  Act,  1875  (ss.  22  (<f)  and  30. 
sub-s.  10),  for  the  reference  of  all  disputes 
between  the  society  and  its  members  to  the 
county  court,  are  permissive  only,  and  not 
peremptory  ;  and  therefore  there  is,  in  a  proper 
case,  jurisdiction  to  remove  to  the  High  Court 
by  certiorari  proceedings  in  an  action  com- 
menced against  a  friendly  society  by  one  of  its 
members.    Royal  Liver  Friendly  Society,  In  re, 

35  Ch.  D.  332  ;  56  L.  J.,  Ch.  821*;  56  L.  T.  817 ; 

36  W.  R.  7— Chitty,  J. 

Rules— Payment  during  Sickness — Old  Age — 
Natural  Decay.] — The  respondent,  over  80  years 
of  age,  belonged  to  a  friendly  society,  oue  of 
the  rules  of  which  provided  that  every  member, 
after  paying  a  certain  amount  of  contributions, 
falling  sick,  lame,  or  blind,  or  otherwise  disabled 
from  work,  should  be  entitled  to  receive  a 
certain  weekly  amount  from  the  funds  of  the 
society  for  sixteen  weeks,  if  his  illness  continued 
so  long,  and  half  pay  for  the  remainder  ;  and 
another  provided  that  where  a  member  falls 
sick,  lame,  or  blind,  he  is  to  give  notice  to  the 
stewards,  with  a  certificate  from  the  surgeon  of 
the  society  stating  the  cause  of  his  indisposition. 
The  surgeon  of  the  society  certified  to  the 
appellants  (stewards  of  the  society)  that  the 
respondent  "  continued  unable  to  work  by  reason 
of  natural  decay."  The  respondent  drew  sick 
pay  for  some  weeks  ;  then  the  appellants  re- 
fused to  allow  him  any  more,  holding  that  the 
certificate  did  not  entitle  him  to  receive  it : — 
Held,  that  incapacity  to  work  arising  from 
natural  decay,  as  the  result  of  old  age,  did  not 
entitle  the  respondent  to  sick  pay  under  the 
society's  rules.  I>unkley  v.  Harrison,  56  L.  T. 
660  ;  61  J.  P.  788— D. 


Death  of  Member  intestate  —  Payment 


of  Death  Allowance— Right  of  Administrator  to 
RecoTer.J — The  deceased,  a  member  of  an  un- 
registered friendly  society,  had,  upon  making 
his   application  for   admission  to  the  society,  1 


signed  a  declaration  agreeing  to  be  bound  by 
the  rules  of  the  society,  and  authorizing  the 
deduction  from  his  wages  of  the  sum  specified 
in  the  rules  for  securing  to  himself,  or  to  his 
representatives  in  case  of  his  death,  the  benefits 
of  the  society.  The  rule  relating  to  the  payment 
of  death  allowances  empowered  and  authorized 
the  committee  to  pay  the  allowance  to  such 
person  or  persons  ad  in  their  discretion  they 
might  think  fit ;  and  it  further  provided  that 
the  allowance  should  be  paid  to  certain  specified 
relatives  in  such  proportions  as  the  committee 
should  determine,  unless  otherwise  bequeathed 
by  will,  when  it  was  to  be  paid  to  the  person 
to  whom  it  had  been  bequeathed ;  that,  where 
there  were  no  surviving  relatives  and  no  special 
bequest,  only  the  funeral  expenses  should  he 
defrayed  by  the  society,  and  that  where  the 
allowance  had  been  once  paid  neither  the 
committee  nor  the  society  should  be  liable  to 
any  further  claim  in  respect  of  it.  Upon  the 
death  of  the  member  intestate  the  society  paid 
the  amount  of  the  death  allowance  to  the  defen- 
dant, his  sister.  The  plaintiff,  as  administrator 
of  the  deceased,  having  brought  an  action 
against  the  defendant  to  recover  the  money  so 
paid  to  her : — Held,  that  the  rule  constituted 
the  contract  between  the  member  and  the 
society  as  to  the  payment  of  the  money ;  that 
the  death  allowance  was  not  the  property  of  the 
member  during  his  life,  and  in  the  absence  of  a 
bequest  by  will  was  not  assets  for  the  payment 
of  his  debts,  and  that  therefore  the  plaintiff 
could  not  recover.  Ashby  v.  Costin,  21  Q.  B.  D, 
401 ;  57  L.  J.,  Q.  B.  491 ;  59  L.  T.  224  ;  37  W.  R> 
14C  ;  53  J.  P.  69— D. 


GAMBLING. 

See  GAMING. 


GAME. 


Dealer's  Licence — Breeding  Pheasants.]— M, 

a  pheasant-breeder  for  many  years,  set  pheasants' 
eggB  under  barn-door  hens  in  coops,  cutting  one 
wing  of  each  bird  to  prevent  escape  and  facilitate 
identification.  He  sold  two  cock  pheasants  on 
6th  February  for  II.  to  one  of  the  public :— Held 
that  he  was  subject  to  the  penalty  under  the 
23  &  24  Vict.  c.  90  and  24  &  25  Vict  c.  91, s. 17, 
for  dealing  in  game  without  a  licence,  H&rutt 
v.  MUes,  48  J.  P.  455— D. 

Ground  Game— Eight  Tested  in  Person  other 
than  Occupior]— When  at  the  date  of  the  pass- 
ing of  the  Ground  Game  Act,  1880,  land  is 
in  the  occupation  of  a  tenant  with  a  legal  in- 
terest, as  tenant  from  year  to  year,  expiring  after 
the  commencement  of  the  act,  but  also  with  an 
equitable  interest  under  an  agreement  prior  to 
the  act  for  a  lease  for  fourteen  years,  to  com- 
mence from  the  expiration  of  the  legal  interest, 
and  reserving  to  the  landlord  the  right  to  the 
ground  game  on  the  land,  such  right  in  the  land- 
lord as  against  the  tenant  is  preserved  by  the 
provisions  of  the  saving  clause  of  the  act  (s.  5) : 


888 


GAMING    AND    WAGERING. 


834 


the  phrase  "is  Tested"  not  being  confined  to 
in  actual  legal  vesting  a  loase  in  possession,  but 
including  an  equitable  Testing  of  the  right  under 
an  agreement  for  a  lease,  contract  of  tenancy,  or 
other  cou tract  bona  fide  made  for  valuable  con- 
sideration. All  kv  sen  v.  Brooking,  26  Ch.  D. 
559;  53  L.  J.,  Ch.  520 ;  61  L.  T.  67  ;  32  W.  R. 
«7-Chitty,  J. 

By  lease  dated  4  th  September,  1865,  H.  demised 
to  L  the  shooting  and  game  of  the  lands  of  P. 
for  twenty  years  from  the  1st  November,  1863. 
In  1874  L.  assigned  to  B.  and  W.,  who  after  the 
expiration  of  the  lease  continued  to  hold  the  right 
of  shooting  as  tenants  from  year  to  year.  By 
lease  dated  the  28th  June,  1869,  H.  demised  to 
C.  the  lands  of  P.  for  the  term  of  sixty  years, 
reserving  to  the  landlord  the  game  : — Held,  that 
the  case  came  within  s.  5  of  the  Ground  Game 
Act  of  1880,  and  that  C.  was  not  eu  tit  led  on  the 
expiration  of  the  lease  of  1865  to  take  and  kill 
ground  game.    Hataard  v.   Clark,  13  L.  R.,  Ir. 

an— v..c. 

Spring  Traps — Owner  in  Possession.]  — 

By  the  6th  section  of  the  Ground  Game  Act, 
1880,  no  person  having  a  right  of  killing 
ground  game  under  this  act  or  otherwise,  shall 
use  any  firearms  for  the  purpose  of  killing 
ground  game  between  the  expiration  of  the  first 
hoar  after  sunset,  and  the  commencement  of  the 
last  hour  before  Minrise ;  and  no  such  person 
shall,  for  the  purpose  of  killing  ground  game, 
employ  spring  traps  except  in  rabbit  holes,  nor 
employ  poison  ;  and  any  person  acting  in  con- 
travention of  this  section,  shall,  on  summary  con- 
viction, be  liable  to  a  penalty  not  exceeding  21. : 
—Held,  that  the  section  does  not  apply  to  an 
owner  of  land  doing  any  of  the  acts  prohibited 
therein  upon  his  own  land.  Smith  v.  Hunt,  54 
L.  T.  422 ;  50  J.  P.  279  ;  16  Cox,  C.  C.  54— D. 

Spring   Traps— Tenant   with   Bight  of 

Hosting.] — A  tenant  of  land  who  is  under  his 
agreement  entitled  to  the  game  and  right  of 
shooting  thereon,  is  liable  to  a  penalty,  under 
1 6  of  the  Ground  Game  Act,  1880;  for  employ- 
ing spring  traps  in  the  open  for  the  purpose 
of  killing  ground  game,  Saunders  v.  Pit  field, 
58  L  T.  108  ;  52  J.  P.  694  ;  16  Cox,  C.  C.  369 
-D. 

Overstocking  Land— Injury  to  Crops— Sight 

ef  Action.] — Where  land  is  let  to  a  tenant  re- 
wring  the  right  of  shooting  over  the  land,  the 
tenant  may  maintain  an  action  against  the 
penons  entitled  to  the  right  of  shooting  for 
overstocking  the  land  with  game  so  as  to  cause 
damage  to  the  tenant's  crops.  Farrer  t.  Nelson, 
15  a  B.  D.  258  ;  54  L.  J.,  Q.  B.  385 ;  62  L.  T. 
786 ;  33  W.  R.  800 ;  49  J.  P.  726— D. 

Prtrention  of  Poaching— Search  by  Constable 
» Highway.] — A  police  constable  saw  the  ap- 
pellant in  a  highway  with  some  rabbits  slung 
over  his  back.  The  appellant  left  the  highway 
nd  ran  across  a  meadow  followed  by  the  police 
constable,  and  on  being  overtaken,  at  a  distance 
from  the  highway,  he  threw  the  rabbits  on  the 
ground,  and  they  were  then  and  there  taken 
possession  of  by  the  police  constable.  On  appeal 
against  a  conviction  under  25  &  26  Vict.  c.  114, 
*>  *:— Held,  that  the  conviction  was  right. 
ftmer  ▼.  Morgan,  (10  L.  R.,  C.  P.  687)  com- 
aented  on.    Lloyd  v.  Lloyd,  14  Q.  B.  D.  725  ; 


53  L.  T.  536  ;  33  W.  R.  457  ;  49  J.  P.  630  ;  16 
Cox,  C.  C.  767— D. 

Abetting  Poachers  —  Carrier  buying  Game 
from  Poachers.] — M.,  a  constable  at  half-past 
seven  in  the  morning  in  the  month  of  October, 
stopped  L.  driving  a  carrier's  cart  on  the  high- 
way, and  after  questioning  L.  searched  it.  M. 
found  two  pair  of  rabbits  (of  which  L.  gave  no 
account),  and  seized  them  under  25  &  26  Vict.  c. 
114.  s.  2.  L.,  on  being  served  with  a  summons, 
said  "  I  bought  them  of  a  man  1  did  not  know. 
This  was  the  first  time  I  have  been  summoned, 
I  won't  have  any  more  of  them  " : — Held,  that 
the  evidence  was  not  sufficient  to  justify  the 
justices  in  convicting  L.  of  aiding  persons  un- 
known, who  unlawfully  went  on  land  in  pursuit 
of  game.    Lawley  v.  Merricks,  51  J.  P.  502 — D. 

Trespass  in  Pursuit— Claim  of  Sight  by 
Tenant.] — B.  was  tenant  of  lands,  there  being  no 
reservation  of  game  by  the  landlord,  and  B.  let  the 
land  to  A.  to  get  and  cut  the  hay,  and  both  B.  and 
A.  gave  leave  to  P.  to  shoot  game  over  the  land. 
P.  was  convicted  under  1  &  2  Will.  4.  c  32,  s. 
30,  of  trespassing  in  pursuit : — Held,  that  the 
justices  were  wrong,  for  the  whole  right  to  the 
game  was  in  B.  and  A.,  and  P.  having  the  leave 
and  authority  of  both  had  a  good  claim  of  right 
to  the  rabbits.     Pochin  v.  Smith,  52  J.  P.  4 — D. 

Kight  Poaching  —  Proof  of  Previous  Con- 
viction.]—  Where  a  person  is  indicted  for 
night  poaching  after  two  previous  convictions, 
the  previous  convictions  should  not  be  proved 
until  the  jury  find  a  verdict  on  the  facts  of  the 
case.  Reg.  v.  Woodfield,  16  Cox,  C.  C.  314— 
Hawkins,  J. 


r 


GAMING  AND  WAGERING. 

Betting— Agent  employed  to  make  Bets  in  his 
own  Kame— Repudiation  of  Bet  before  Payment 
— Implied  Contract  to  Indemnify.] — The  plain- 
tiff, a  turf  commission  agent,  was  employed  by  the 
defendant  to  make  bets  for  him  in  the  plaintiffs 
own  name.  After  the  plaintiff  had  so  made  some 
bets,  but  before  he  had  paid  those  which  were 
lost,  the  defendant  repudiated  the  bets.  On  the 
settling  day  the  plaintiff,  who  was  a  member  of 
TattersaU'8,  paid  the  bets,  as,  if  he  had  been  a 
defaulter,  he  would  have  been  subject  to  certain 
disqualifications  in  connexion  with  racing  mat- 
ters, and  he  then  sued  the  defendant  for  the 
amount  so  paid  :—  Held  (Brett,  M.R.,  diss.),  that 
he  was  entitled  to  recover  the  amount  so  paid. 
Read  t.  Anderson,  13  Q.  B.  D.  779;  63  L.  J., 
Q.  B.  532  ;  51  L.  T.  55  ;  32  W.  R.960  ;  49  J.  P.  4 
— C.  A. 

Bight  of  Principal  to  Recover  Money  re- 
ceived by  Agent— 8  ft  9  Viet.  e.  109,  s.  18.]— The 

plaintiff  employed  the  defendant  to  make  bets 
for  him  upon  commission.  The  defendant  having 
done  so,  received  from  the  losers  money  in  respect 
of  bet 8  so  made  which  were  won  by  him.  The 
plaintiff  clpimed  this  money  from  the  defendant, 
but  the  defendant  refused  to  pay  it  on  the 
ground  that  it  was  money  won  upon  a  wager, 
and  therefore  that  the  plaintiff  could  not  re- 

E  S 


885 


GAMING   AND    WAGERING. 


836 


cover,  in  consequence  of  the  provisions  of  8  &  9 
Vict.  c.  109,  s.  18  :— Held,  that  the  plaintiff  was 
entitled  to  recover  ;  that  the  defendant  had  re- 
ceived the  money  for  the  use  of  the  plaintiff ; 
that  the  provisions  of  8  &  9  Vict.  c.  109,  s.  18 
only  apply  to  the  original  contract  between  the 
two  persons  who  make  a  bet,  and  that  they  do 
not  make  void  a  contract  such  as  that  which 
the  plaintiff  had  made  with  the  defendant. 
Bridger  v.  Savage,  15  Q.  B.  D.  363  ;  54  L.  J., 
Q.  B.  464 ;  53  L.  T.  129  ;  33  W.  R.  891 ;  49  J.  P. 
725—  C.  A. 

Place  nsed  wr  Betting— Racecourse.]— Dog- 
races  were  held  in  an  inclosed  field  hired  for  the 
purpose  by  a  committee,  the  public  being  ad- 
mitted to  a  reserved  portion  of  the  field  on  pay- 
ment of  a  small  sum.  The  appellant  attended 
the  races,  and  moved  about  the  reserved  portion, 
making  bets  with  various  persons  there  : — Held, 
that  the  appellant  did  not  use  a  place  for  the 
purpose  of  betting  with  persons  resorting  thereto, 
within  the  meaning  of  ss.  1  and  3  of  16  &  17 
Vict.  c.  119,  and  therefore  was  not  liable  to  be 
convicted  for  an  offence  under  those  sections. 
Snow  v.  Hill,  14  Q.  B.  D.  588  ;  64  L.  J.,  M.  C. 
95  ;  52  L.  T.  859  ;  W.  R.  475  ;  49  J.  P.  440  ;  15 
Cox,  C.  C.  737— D. 


Bicycle  Grounds— Liability  of  Manager.] 


— The  appellant  was  manager  of  bicycle  grounds. 
Bicycle  races,  at  which  20,000  spectators  were 
present,  took  place  there.  Placards,  with  the 
words  "  No  betting  allowed,"  were  posted  in  the 
grounds,  and  twelve  police  constables  were  em- 
ployed there  by  the  manager,  but  some  betting 
took  place  about  twenty  yards  from  the  winning- 
post  where  he  stood,  acting  as  judge  of  the  races. 
He  was  aware  that  betting  would  and  did  take 
place,  but  could  not  have  wholly  prevented  it 
under  the  circumstances,  although  he  might  have 
repressed  it  to  a  certain  extent  with  the  aid  of 
the  constables  : — Held,  that  as  the  business  of 
the  grounds  was  not  that  of  illegal  betting  within 
16  &  17  Vict.  c.  119,  s.  1,  he  was  not  liable  to 
conviction  under  s.  3,  as  a  "  person  having  the 
care  or  management  of  or  in  any  manner  assisting 
in  conducting  the  business  of  any  ....  place 
opened,  kept,  or  used  for  the  purposes  aforesaid." 
Reg.  v.  Cooky  13  Q.  B.  D.  377  ;  51  L.  T.  21 ;  32 
W.  R.  796  ;  48  J.  P.  694— D. 

Betting  Houses  —  Advice  with  respect  to 
Wagon — Advertisement.]  — The  Betting  Act, 
1874,  is  confined  to  such  bets  as  are  mentioned 
in  the  Betting  Act,  1853,  that  is,  to  bets  made 
in  any  house,  office,  or  place  kept  for  betting, 
and  the  act  does  not  apply  to  advertisements 
offering  information  for  the  purpose  of  bets  not 
made  in  any  house,  office,  or  place  kept  for  that 
purpose,  vox  v.  Andrews,  or  Andrews  v.  Cox, 
12  Q.  B.  D.  126 ;  53  L.  J.,  M.  C.  34 ;  32  W.  R. 
289 ;  48  J.  P.  247— D. 


Unlawful  Gaming — Baccarat — Common 


Gaming  House.] — A.  was  the  proprietor  of  the 
Park  Club  and  was  also  occupier  of  the  pre- 
mises used  by  the  club,  and  received  the  profits. 
B.,  C,  D.,  and  K.  were  members  of  the  com- 
mittee of  management,  whose  duty  it  was  to 
regulate  the  internal  management  of  the  club, 
and  (amongst  other  things)  to  make  bye-laws 
and  regulations  for  the  carrying  it  on  and  for 


the  government  of  its  members,  who  were  elected 
by  them.     F.,  G.,  and  H.  were  members  of  the 
club.    By  the  rules  and  regulations  of  the  club, 
hazard  was  not  to  be  played,  dice  were  ex- 
cluded, and  the  points  at  whist  were  limited  to 
1/. ;  all  games  were  to  be  played  for  ready  money ; 
and  under  no  pretence  were  strangers  to  be 
admitted  to  the  card-room.    An  entrance  fee  of 
10  guineas  and  an  annual  subscription  of  6 
guineas  was  paid  by  each  member  of  the  club.  The 
kitchen  was  conducted  at  a  loss,  and  wines  and 
cigars  supplied  at  a  slight  excess  over  cost  price. 
The  profits  accruing  to  the  proprietor  arose  from 
the  entrance  fees  and  subscriptions,  and  what  was 
called  "  card  money."    Members'  cheques  were 
cashed  by  the  proprietor  to  the  amount  of  200/., 
for  which  he  charged  1  per  cent.    The  game 
of  baccarat  was  played  nightly.    Upon  an  in- 
formation charging    the  eight  persons  abofe- 
named  with  having  committed  offences  against 
s.  4  of  17  &  18  Vict.  c.  38,  A.,  the  proprietor,  was 
adjudged  to  have  been  guilty  of  ''  keeping  and 
using  the  Park  Club  for  the  purpose  of  unlawful 
gaming,"  and  fined  500/.    The  four  committee- 
men   were   adjudged  to  have  been  guilty,  as 
persons  "having  the  care  or    management  of 
and  assisting  in  conducting  the  business  "  of  the 
house  so  kept  and  used  for  the  purpose  of  unlaw- 
ful  gaming,  and  were  each  fined  500/.  The  three 
players  were  also  adjudged  to  have  been  guilty  of 
the  offence,  as  persons  who  "  assisted  by  playing 
in  conducting  the  business  of  the  house  so  kept 
and  used  for  the  purpose  of  unlawful  gaming,1 
and  were  each  fined  100/. : — Held,   that  the 
proprietor  of  the  club  and  the  four  members  of 
the  committee  were  properly  convicted ;  but  that 
the  players,— though  possibly  liable  to  be  in- 
dicted for  unlawful  gaming  in  a  common  gaming- 
house,— were  not  liable  to  be  summarily  con- 
victed under  this  statute.     JenJts  v.  Turpi*,  13 
Q.  B.  D.  505  ;  53  L.  J.,  M.  C.  161  ;  50  L.  T.  808 ; 
49  J.  P.  20  ;  15  Cox,  C.  C.  486— D. 

Per  Hawkins,  J. : — If  the  house  in  question 
had  been  opened  and  used  for  a  double  purpose, 
viz.,  as  an  honest  sociable  club  for  those  who  did 
not  desire  to  play,  as  well  as  for  the  purposes  of 
gaming  for  those  who  did,  it  would  not  the  less 
be  a  house  opened  and  kept  "for  the  purpose  of 
gaming."     To  constitute  *' unlawful  gaming,'' 
it  is  not  necessary  that  the  games  played  shall 
be  unlawful  games  :  it  is  enough  that  the  play 
is  carried  on  in  a  "  common  gaming-house.**  The 
expression  "  unlawful  games  "  was  intended  by 
the  legislature  to  cover  and  include  some  games 
which,  being  lawful  in  themselves,  were  only 
made  unlawful  when  played  in  particular  places 
or  by  particular  persons.    It  makes  no  difference 
that  the  use  of  the  house  and  the  gaming  there- 
in is  limited  to  the  subscribers  or  members  of  the 
club,  and  that  it  is  not  open  to  all  persons  who 
might  be  desirous  of  using  it.    It  is  not  a  public, 
but  a  common  gaming-house  that  is  prohibited. 
"  Baccarat "  is  a  game  of  chance,  and  unlawful 
within  17  &   18  Vict.   c.  38,  s.   4.    Excessive 
gaming  per  se  is  not  any  longer  a  legal  offence ; 
it  was  not  an  offence  at  common  law  ;  and  there 
now  exists  no  statute  against  it.    But  the  nut 
that  it  is  habitually  carried  on  in  a  house  kept 
for  the  purpose  of  gaming  is  cogent  evidence  for 
a  jury  or  other  tribunal  called  upon  to  determine 
whether  the  house  in -which  it  is  carried  on  is  a 
common  gaming-house,  so  as  to  make  the  keeper 
of  it  liable  to  be  indicted  for  a  nuisance  at  com- 
mon law.    lb. 


837 


GAS    AND    GAS    COMPANY. 


888 


Per  A.  L.  Smith,  J.: — A  "common  gaming- 
house" is  a  house  kept  or  used  for  playing 
therein  at  any  game  of  chance,  or  any  mixed 
gime  of  chance  and  skill,  in  which  (1)  a  bank  is 
kept  by  one  or  more  of  the  players  exclusively  of 
the  others,  or  (2)  in  which  any  game  is  played 
the  chances  of  which  are  not  alike  favourable  to 
ill  the  players,  including  among  the  players  the 
banker  or  other  person  by  whom  the  game  is 
managed  or  against  whom  the  other  players  stake, 
play,  or  bet.  It  is  immaterial  whether  the  bank 
is  kept  by  the  owner  or  occupier  or  keeper  of  the 
house  or  by  one  of  the  players.    lb. 

Permitting  Gaming  on  licensed  Premises.  ] — 

See  INTOXICATING  LIQUORS  (OFFENCES). 

Lottery— Inclosing  Money  in  Packets.]— H. 

kept  a  shop  for  the  sale  of  sweets  and  sold  penny 
packets  of  caramel,  several  of  which  contained  a 
halfpenny  in  addition  to  a  fair  pennyworth  of 
sweets.  There  had  been  no  advertisement  as  to 
these  inclcsures : — Held,  that  H.  was  rightly 
convicted  under  42  Geo.  3,  c.  1 19,  s.  2,  of  keeping 
a  lottery.    Hunt  v.  Williams,  62  J.  P.  821— D. 

By  42  Geo.  3,  c.  119,  s.  2,  it  is  made  an  offence 
to  keep  any  office  or  place  to  exercise  any 
lattery  not  authorised  by  parliament.  The  ap- 
pellant erected  a  tent,  in  which  he  sold  packets, 
each  containing  a  pound  of  tea,  at  2s.  6d.  a  packet. 
In  each  packet  was  a  coupon  entitling  the  pur- 
chaser to  a  prize,  and  this  was  publicly  stated  by 
the  appellant  before  the  sale,  but  the  purchasers 
did  not  know  until  after  the  sale  what  prizes 
they  were  entitled  to,  and  the  prizes  varied  in 
character  and  value.  The  tea  was  good  and 
worth  the  money  paid  for  it : — Held,  that  what 
the  appellant  did  constituted  a  lottery  within 
the  meaning  of  the  statute.  Taylor  v.  Smetten, 
11  Q.  B.  D.  207  ;  52  L.  J.,  M.  C.  101  ;  48  J.  P. 
36-D. 

Wagering  Policies —Want  of  Insurable  In- 
tweet  —  Beturn  of  Premiums.]— J.  H.  effected 
with  the  defendant  company  two  policies  of  in- 
surance on  the  life  of  his  father,  J.  H.,  in  which 
he  had  no  insurable  interest.  According  to  the 
policies  the  premiums  were  to  be  paid  weekly. 
J.  H„  the  son,  continued  to  make  these  weekly 
payments  for  some  years.  J.  H.,  the  father,  had 
at  first  no  knowledge  of  the  insurances  effected 
on  his  life  ;  bat  when  he  became  aware  of  them 
he  objected  to  their  being  continued,  and  gave 
notice  to  that  effect  to  the  company.  J.  H.,  the 
ton,  then  gave  notice  to  the  defendants  that  the 
policies  were  at  an  end,  and  claimed  the  return 
of  the  amount  of  the  premiums.  The  defendants 
refused  to  pay,  and  J.  H.,  the  son,  brought  his 
action  for  their  recovery,  and  the  county  court 
judge  gave  judgment  for  the  plaintiff : — Held, 
that  under  the  circumstances  of  the  case  the 
policies  were  wagering  policies,  and  consequently 
the  premiums  paid  in  respect  of  them  could  not 
he  recovered.  Howard  v.  Refuge  Friendly 
Sseiety,  64  L.  T.  644— D. 

Cheque  or  Bote  given  for  Gambling  Tran- 
■tftioas  Conaitterataon.  ]— The  plaintiff  brought 
an  action  to  recover  the  amount  due  on  two 
promissory  notes  given  by  the  defendant  to  B. 
in  respect  of  certain  gambling  transactions,  on 
the  Stock  Exchange,  and  indorsed  over  by  B.  to 
the  plaintiff  for  valuable  consideration :  —Held, 


that  the  plaintiffs  right  to  recover  was  not 
affected  by  the  fact  that  he  had  notice  of  the 
notes  having  been  given  by  the  defendant  to  B. 
in  respect  of  gambling  transactions,  the  consi- 
deration for  the  notes  not  being  illegal,  but  falling 
only  within  the  categorv  of  void  contracts  under 
8  &  9  Vict.  c.  109.     Lilley  v.  Rankin,  56  L.  J.,  Q. 

B.  248  ;  55  L.  T.  814— D. 

A  cheque  given  in  payment  for  counters  ob- 
tained from  the  secretary  of  a  club  to  enable  the 
purchaser  to  gamble  at  cards,  cannot  be  sued 
upon  by  the  secretary.      St.  Croix  v.  Morris,  1 

C.  &  E.  485— Stephen,  J. 


GARNISHEE. 

See    ATTACHMENT    OF    DEBTS- 
INTERPLEADER. 


GAS   AND  GAS  COMPANY. 

Supply  for  Consumption  outside  Company's 
District—"  Supplying  gas  for  Sale  "—Point  of 
Delivery.] — Prior  to  the  passing  of  the  Metropolis 
Gas  Act,  1860,  the  metropolitan  gas  companies 
were  not  bound  to  supply  gas  to  their  customers, 
and  the  districts  within  which  they  had  statutory 
powers  were  so  interlaced  that  inconvenience 
ensued,  e.g.,  from  the  frequent  taking  up  of 
streets.  To  remedy  this  the  Metropolis  Gas  Act, 
1860,  was  passed,  which,  by  s.  6,  assigned  a 
certain  district  to  each  metropolitan  gas  company 
and  provided  that  no  other  company  or  person 
should  "  supply  gas  for  sale  within  the  said 
limits"  unless  authorised  by  parliament  so  to 
do.  By  s.  14  the  supply  of  gas  to  the  owners  or 
occupiers  (requiring  such  supply)  of  premises 
within  or  partly  within  the  company's  premises 
was  made  compulsory.  The  Nine  Elms  station 
of  the  London  and  South-Western  Railway 
Company  was  partly  within  the  district  of  the 
plaintiff  company  and  partly  within  that  of  the 
defendant  company.  The  defendant  company 
sold  to  the  railway  company  (on  their  requiring 
the  same)  gas  which  was  used  to  illuminate  the 
whole  of  the  station.  The  meter  was  placed  at 
a  point  within  the  defendant  company's  district, 
and  from  this  point  the  gas  passed  through  pipes 
laid  on  the  railway  company's  premises  to  the 
various  points  where  it  was  consumed,  including 
all  such  points  as  were  within  the  plaintiff 
company's  districts: — Held,  that  the  sale  and 
delivery  of  the  gas  took  place  at  the  meter,  and 
that  the  defendant  company  were  not,  therefore, 
infringing  s.  6  of  the  act.  Oas  Light  and  Coke 
Company  v.  South  Metropolitan  Gas  Company, 
58  L.  T.  899  ;  36  W.  R.  455— C.  A.  Affirming 
56  L.  J.,  Ch.  858 — Kekewich,  J.  Reversed  in 
H.  L.  [S.  P. — Imperial  Gaslight  and  Coke  Co. 
v.  West  London  Junction  Gas  Co.,  56  L.  J.,  Ch. 
862,  n.— L.JJ.] 

Accounts — Special  Act — Subsequent  General 
Act  containing  inconsistent  Provisions.]— The 

E  E  2 


6S9 


GAS    AND    GAS    COMPANY. 


840 


Leamington  Priors  Gas  Company's  Act,  1865  (28 
Vict.  c.  cxxviii.),  which  incorporated  the  Gas- 
works Clauses  Act,  1847,  except  so  far  as  it 
might  be  varied  by  any  provision  of  the  special 
act,  prescribes  by  s.  32  a  special  form  in  accord- 
ance with  which  the  annual  accounts  of  the 
company  were  to  be  made  up,  in  lieu  of  pro- 
visions as  to  accounts  contained  in  s.  38,  of  the 
Act  of  1847.  By  s.  49  of  the  Act  of  1847,  under- 
takers are  not  to  be  exempted  from  any  general 
act  relating  to  gasworks  which  may  be  passed 
in  any  future  session.  By  s.  1  of  the  Gasworks 
Clauses  Act,  1871,  that  act  and  the  act  of  1847 
are  to  be  construed  as  one  act,  and  by  s.  35  of 
the  Act  of  1871,  the  undertakers  are  to  make  an 
annual  statement  of  accounts  in  the  form  pre- 
scribed by  that  act,  and  to  furnish  copies  of  the 
same  to  any  applicant.  The  appellants  made 
out  their  annual  statement  of  accounts  in  the 
form  prescribed  by  s.  32  of  their  special  act,  and 
did  not  furnish  to  the  respondent  on  application, 
a  copy  of  an  annual  statement  of  their  accounts 
made  out  in  the  form  prescribed  by  the  act  of 
1871  : — Held,  that  as  the  appellants'  special 
act  prescribed  the  form  in  which  the  annual 
statement  of  accounts  was  to  be  made  up,  the 
provisions  relating  to  the  form  of  accounts  in 
a.  35  of  the  Gasworks  Clauses  Act,  1871,  did  not 
apply.  Dudley  Gasicarht  Company  v.  War- 
mington  (50  L.  J.,  M.  C.  69)  distinguished. 
Leamington  Priors  Gas  Company  v.  Davis,  18 
Q.  B.  D.  107  ;  56  L.  J.,  M.  C.  J4  ;  55  L.  T.  734  ; 
35  W.  R.  123  ;  61  J.  P.  360— D. 

Jurisdiction    of    Quarter    Sessions  —  Power 
to  re-open  Accounts— Costs   of  Inquiry.]— By 

s.  35  of  the  Gasworks  Clauses  Act,  1847,  a  court 
of  quarter  sessions  may,  on  the  petition  of  two 
gas-ratepayers,  appoint  some  accountant,  or 
other  competent  person,  to  examine  and  ascer- 
tain at  the  expense  of  the  gas  company  (the 
amount  of  the  expense  to  be  determined,  by  the 
court)  the  actual  state  and  condition  of  the 
concerns  of  the  company,  and  to  make  a  report 
•  thereof  to  the  court,  and  power  is  given  to  the 
court  to  examine  witnesses  on  oath  touching  the 
truth  of  the  said  accounts  and  the  matters 
therein  referred  to ;  and  if  it  appear  to  the 
court  that  the  profits  of  the  company  during  the 
preceding  year  hare  exceeded  the  prescribed 
rate,  the  court  has  power,  in  case  the  whole  of 
the  reserve  fund  has  been  and  remains  invested, 
and  in  case  dividends  to  the  amount  thereinbe- 
fore limited  have  been  paid,  to  make  an  order 
reducing  the  price  of  the  gas  supplied  by  the 
company.  A  petition  was  under  this  section 
presented  to  the  recorder  of  Hanley  praying  him 
to  appoint  a  person  to  inquire  into  the  actual 
condition  of  the  undertaking  of  the  prosecutors, 
and  an  accountant  was  appointed.  During  the 
inquiry  he  examined  not  only  the  accounts  of 
the  then  previous  year,  but  re-opened  all  the 
accounts  of  previous  years  to  1871,  and  a  report 
based  upon  this  inquiry  was  sent  in  by  him  to 
the  recorder.  It  was  admitted  that  the  whole  of 
the  reserve  fund  was  not  then  and  never  had 
been  invested,  and  that  the  prescribed  maximum 
dividend  had  not  been  paid.  The  recorder,  being 
of  opinion  that  the  accounts  when  amended 
showed  that  the  company  had  in  point  of  fact 
earned  enough  to  pay  the  prescribed  maximum 
dividend,  and  to  have  invested  and  kept  invested 
the  whole  of  the  reset  ve  fund,  made  an  order  re- 
ducing the  price  of  gas  Gd.  per  1000  cubic  feet. 


He  further  ordered  the  prosecutor  to  pay  6501., 
the  expense  of  the  proceedings  before  the 
accountant,  and  to  pay  to  the  petitioner* 
2,433/.  6*.  6d.,  "  their  costs  of  and  incident  to 
the  petition."  Upon  an  application  for  a  writ  of 
certiorari  to  quash  the  order  as  being  made  with- 
out jurisdiction  :— Held,  that  the  order  to  reduce 
the  price  of  gas  was  bad,  the  power  of  the 
recorder  being  absolutely  restricted  by  8. 35  to 
cases  where  the  whole  of  the  reserved  fund  has 
been  invested  and  the  prescribed  dividend  paid; 
and  th.<t  the  recorder  acted  without  jurisdiction 
in  ordering  the  costs  of  the  petitioners  to  be  paid 
by  the  prosecutors.  Beg,  v.  Hanley  (Recttrder), 
19  Q.  B.  D.  481 ;  56  L.  J.,  M.  C.  125  ;  67  LT. 
444  ;  36  W.  R.  222  ;  52  J.  P.  100— D. 

The  accountant  and  the  recorder  had  juris- 
diction to  inquire  into  the  accounts  of  past 
years  for  the  purpose  of  ascertaining  the  actual 
condition  of  the  concern ;  but,  semble,  that  thej 
had  no  power  to  disallow  and  re-cast  them,  and 
by  so  doing  vary  the  accounts  of  the  year  into 
which  they  were  inquiiing.    lb. 


Appointment  of  Engineer  to  astiit  Ac- 


countant]— The  Court  of  Quarter  Sessions  has  no 
jurisdiction,  under  s.  35  of  the  Gasworks  Clausal 
Act,  1847,  to  appoint  a  gas  engineer  to  assist  an 
accountant  appointed  thereunder  to  examine  and 
ascertain  the  actual  state  and  condition  of  the 
concerns  of  the  gas  company,  and  where  soch 
order  is  made  a  writ  of  certiorari  will  lie  to  bring 
the  order  up  to  be  quashed,  lleg.  v.  BrindUjff 
54  L.  T.  435  ;  50  J.  P.  534— D. 

Application  by  Consumers — Accumulation  «f 
Profits  —  Bodnction  of  Price.] — Certain  con- 
sumers of  gas  brought  an  action  against  the  gat 
company  which  supplied  them,  on  the  ground 
that  the  company  had  created  a  reserve  fund 
greatly  in  excess  of  that  authorised  by  its  special 
acts,  and  had  carried  over  from  year  to  year, 
large  undivided  profits,  thereby  avoiding  the 
obligation  upon  it  to  reduce  the  price  of  the  gat 
which  it  so  supplied  : — Held,  that  no  such  duty 
as  alleged  was  imposed  by  the  acts  on  the  com- 
pany ;  that  the  consumers  had  no  control  over 
the  affairs  of  the  company,  and  were  not,  there- 
fore entitled  to  raise  the  question,  the  sbanv 
holders  alone  being  interested  ;  and  that  the 
court  could  not  order  the  reserve  fund  and  un- 
divided profits  to  be  applied  in  reduction  of  the 
price  of  the  gas  in  the  manner  suggested 
Mason  v.  Ashton  Gas  Company,  54  L.  T.  70S; 
50  J.  P.  628— C.  A. 

"8troet,  Highway,  or  Public  Place  "—layinr 
Xaina  on  Sea-shore.] — A  gas  company  laid  down 
main  pipes  between  two  villages  on  the  sea- 
shore in  an  open  tract  of  land  above  mean  high- 
water  mark,  which  belonged  to  the  owner  of  the 
enclosed  land  fronting  the  shore.  The  in- 
habitants of  the  villages  had  alw.ys  gone  to 
and  fit)  between  them  along  the  shore,  and  at 
high  water  passed  over  this  piece  of  land  as  they 
chose  and  in  accordance  with  the  tide,  but  by 
no  defined  track.  The  owners  brought  an  action 
for  a  mandatory  injunction  to  compel  the  com* 
pany  to  remove  the  pipes : — Held,  that  the  tract 
of  land  in  question  was  not  a  '*  street,  highway, 
or  public  place "  within  the  meaning  of  the 
Gasworks  Clauses  Act,  1847.    Maddoek  v.  ffU» 


841 


GAS    AND    GAS    COMPANY. 


842 


Usey  Local  Board,  55  L.  J.,  Q.  B.  267  ;  50  J.  P. 
404-D. 

Support  of  Mains  laid  in  Highway  without 
Itatntory  Powers — Subs  eqnent  Aot  giving  Autho- 
rity—Compensation.] — A  limited  gas  company, 
acting  without  any  statutory  authority,  and  with- 
out the  authority  of  the  landowner,  but  with 
the  permission  of  the  highway  authority,  laid 
pipe*  under  the  soil  of  the  highway.  Sub- 
sequently a  gas  company  wai  constituted  by  a 
private  act,  which  incorporated  the  Gasworks 
Clauses  Acts,  1847  and  1871.  The  private  act  of 
this  company  provided  for  the  dissolution  of  the 
Umited  company,  and  enacted  that  all  the  lands, 
gasworks,  easements,  mains,  pipes,  plant,  and 
apparatus  placed  by.  vested  in,  or  which  were 
the  property  of  the  limited  company  imme- 
diately before  the  passing  of  the  act,  should 
be  similarly  vested  in  the  incorporated  com- 
pany, and  the  incorporated  company  were  em- 
powered to  maintain  the  existing  gasworks  and 
to  lay  down  and  maintain  additional  mains  and 
|  pipes.  The  Gasworks  Clauses  Act,  1847,  gives 
|  power  to  undertakers  of  gasworks  to  open 
I  the  soil  within  their  district,  to  lay  and  repair 
J  pipes  therein,  and  to  do  other  acts  necessary  for 
supplying  gas,  making  compensation  for  any 
damage  done  in  the  execution  of  such  poweis. 
The  Gasworks  Clauses  Act,  1871,  renders  it 
compulsory  on  undertakers  of  gasworks  to 
supply  gas  on  certain  conditions  and  within 
certain  limits.  The  defendants,  the  lessees  of 
the  minerals  under  and  adjacent  to  the  highway 
under  which  the  plaintiffs  had  laid  their  pipes, 
had  by  working  the  coal  thereunder  let  down  the 
srjil  of  the  highway  and  caused  injury  to  the 
plaintiffs'  pipes  : — Held,  that  the  plaintiffs  were 
entitled  to  support  for  their  pipes,  and  that  the 
landowner  was  entitled  to  compensation  for  the 
burden  thus  imposed  upon  him  ;  that  the  plain- 
tiffs could  therefore  recover  damages  by  action 
for  any  injury  caused  to  their  pipes,  while  the 
owner  of  the  minerals  could  recover  compen- 
sation in  an  arbitiation  for  the  limitation  thus 
pot  upon  the  user  of  his  lands.  Normanton  Gas 
Company  v.  Pop*-,  62  L.  J.,  Q.  B.  629  ;  49  L.  T. 
79& ;  32  W.  R.  134— C.  A.  Affirming,  47  J.  P. 
181-D. 

Injury  to  Pipes  under  Boads  by  Steam 
loUer.] — The  plaintiffs,  a  gas  company,  laid 
down  pipes  under  the  surface  of  certain  streets, 
a*  they  were  bound  by  statute  to  do,  for  the 
purpose  of  supplying  gas  to  light  the  street  and 
nooses  in  the  streets.  The  streets  were  vested 
hi  the  defendants,  the  vestry  of  the  parish,  by 
certain  statutes  which  gave  them  the  authority 
«f  the  surveyor  of  highways,  and  with  the  duty 
to  repair,  but  without  prescribing  any  particular 
ttoie  of  repair.  J  he  defendants  used  steam- 
rollers for  the  repair  of  the  streets,  as  being  a 
aoiie  of  repair  most  advantageous  to  both  the 
ratepayers  and  the  public,  but  the  rollers  they 
Qsei  were  so  heavy  as  to  frequently  injure  the 
plaintiff  s  pipes,  though  the  pipes  were  suffi- 
ciently below  the  surface  so  as  not  to  have  been 
injured  by  the  ordinary  mode  of  repair  if  such 
rollers  had  not  been  used : — Held,  that  the 
plaintiffs  were  entitled  not  only  to  recover 
damages  for  the  injury  which  had  been  done, 
bat  also  to  have  an  injunction  to  restrain  the 
defendants  from  using  steam  rollers  in  such  a 
way  as  to  injure  the  pipes  of  the  plaintiffs. 


Gas  Light  and  Coke  Company  v.  St.  Mary 
Abbott'*  Vestry,  15  Q.  B.  D.  1  ;  54  L.  J.,  Q.  B. 
414  ;  53  L.  T.  457  ;  33  W.  R.  892  ;  49  J.  P.  469 
— C.  A.    Affirming  1  C.  &  E.  368— Field,  J. 

Laying  Pipe  to  communicate  with  Pipe  of 
Company  without  Consent.] — The  appellants, 
on  their  own  premises,  substituted  for  part  of  a 
gas  pipe  belonging  to  the  respondents  a  larger 
pipe  for  the  purpose  of  increasing  their  supply. 
This  was  done  without  any  fraud,  waste,  or  mis- 
use of  the  gas,  but  without  the  respondents'  con- 
sent, although  notice  of  intention  to  disconnect 
the  pipe  from  the  meter  was  duly  given  under 
s.  15  of  the  Gasworks  Clauses  Act,  1871.  Upon 
summons  a  stipendiary  magistrate  convicted  the 
appellants  under  s.  18  of  the  Gasworks  Clauses 
Act,  1847 : — Held,  upon  a  case  stated,  that  the 
appellants  had  within  the  meaning  of  that 
section  caused  to  be  laid  a  pipe  to  communicate 
with  a  pipe  belonging  to  the  undertakers  without 
their  consent ;  and  that  the  magistrate  rightly 
convicted  them.  Wood  v.  Went  Ham  Gas 
Company,  52  L.  T.  817  ;  33  W.  R.  799 ;  49  J.  P. 
662— D. 

Distress  for  Money  due  to  Company  tor  Gas.] — 
By  their  special  act  (39  &  40  Vict.  c.  cxix.  s.  44) 
the  corporation  of  Walsall  were  empowered  to 
"  recover  from  any  person  any  rent  or  charge 
due  to  them  by  him  for  gas  supplied,  by  the 
like  means  as  landlords  are  for  the  time  being 
by  law  allowed  to  recover  rent  in  arrear  "  : — 
Held,  that,  after  the  filing  of  a  liquidation 
petition  by  a  customer,  the  corporation  were 
entitled  as  against  the  trustee  in  the  liquidation 
to  levy  a  distress  in  respect  of  a  sum  due  by  the 
debtor  for  gas  supplied  to  him  before  the  filing 
of  the  petition.  Harrison,  Ex  parte,  Pedke,  In 
re,  13  Q.  B.  D.  753  ;  53  L.  J.,  Ch.  977  ;  51  L.  T. 
878— D. 

Held,  also,  that  the  corporation  were  not, 
within  the  meaning  of  s.  34  of  the  Bankruptcy 
Act,  1869,  "other  persons"  to  whom  any  rent 
was  due  by  the  debtor,  but  that,  by  virtue  of 
s.  44  of  the  special  act,  they  were  entitled  to  the 
rights  given  to  landlords  by  s.  34.  The  payment 
to  a  gas  company  for  gas  supplied,  though  it  is 
called  "  rent "  in  some  acts  of  parliament,  is  not 
really  of  the  nature  of  rent,  and  consequently  a 
gas  company  does  not  come  within  the  words 
"  other  person  to  whom  any  rent  is  due  "  in  s.  34 
of  the  Bankruptcy  Act,  1869.  Those  words  apply 
only  to  a  person  who,  though  he  is  not  the  land- 
lord of  the  bankrupt,  fills  a  position  analogous 
to  that  of  a  landlord,  because  he  is  entitled  to 
receive  that  which  is  rent  strictly  so  called. 
Birmingham  Gas  Light  Company,  Ex  parte 
(11  L.  R..  Eq.  615),  and  Hill,  Ex  parte  (6  Ch. 
D.  63),  commented  on.    lb. 

Gas-stoves  let  for  Hire— Exemption  from  Dis- 
tress.]— By  s.  14  of  the  Gasworks  Clauses  Act, 
1847,  "The  undertakers  may  let  for  hire  any 
meter  for  ascertaining  the  quantity  of  gas  con- 
sumed or  supplied,  and  any  fittings  for  the 
gas  .  .  .  and  such  meters  and  fittings  shall  not 
be  subject  to  distress  ...  for  rent  of  the  pre- 
mises where  the  same  may  be  used"  : — Held, 
that  a  gas-stove  let  for  hire  was  within  the  words 
14  fittings  for  the  gas/'  and  therefore  was  not 
subject  to  distress  for  rent.  Gaslight  and  Coke 
Company  v.  Hardy,  17  Q.  B.  D.  619 ;  56  L.  J., 
Q.  B.  168 ;  55  L.  T.  585  ;  35  W.  R.  50  ;  51  J.  P. 
6— C.  A. 


1 


843 


GIFT— GOODWILL. 


844 


GIFT. 


Trust,  Creation  ot.]—See  Tbust  and  Trus- 
tee. 

Donatio  mortis  causa.] — See  Will. 

Setting  Aside.]— See  Undue  Influence. 

Freeholds— Advance — Possession  of  Deeds.  ]— 

In  1878  A.  entered  into  a  contract  for  the  sale  to 
him  of  two  freehold  houses  at  the  price  of  650/. 
The  deposit  of  602.  was  paid  by  him,  and  360/., 

Sirt  of  the  balance,  was  obtained  from  his  niece 
.,  to  whom  he  gave  his  IO  U.    On  the  21st 
August,  1878,  the  wife  of  A.  by  his  direction, 
wrote  to  B.  as  follows  :  "  A.  bought  two  houses 
yesterday,  and  he  is  going  to  have  them  settled 
and  signed  in  your  name,  and  give  them  to  you. 
I  send  you  the  conditions  of  sale  for  you  to  look 
at,  and  I  should  like  you  to  come  and  see  A. 
....    Bring  your  bank  book  with  yon,  as 
what  you  have  might  as  well  go  into  them  as  for 
us  to  pay  interest.    It  is  all  right,  I  can  assure 
you.    I  sent  the  50/.  bv  cheque  last  night,  on  de- 
posit."     On   the  25th   October,  1878,  the  two 
houses  were  duly  conveyed  to  A.,  and  he  directed 
his  wife  to  hand  over  the  title  dee<ls  to  B.,  and 
he  also  said  to  his  wife  that  the  deeds  belonged 
to  B.,  and  were  of  no  use  to  his  wife.    The  deeds 
were  sent  to  B.,  by  A.V  wife.    Subsequently  A. 
died  intestate,  and  his  eldest  brother  and  heir-at- 
law  commenced  an  action  against  B.,  claiming  a 
declaration  that  he,  the  plaintiff,  was  entitled  to 
the  rente  and  profits  of  the  two  houses  and  the 
delivery  up  of  the  title  deeds  : — Held,  that  there 
was  evidence  of  an  intention  on  the  part  of  A.  to 
give  the  property  to  B. ;  but  that  no  gift  of  it 
had  in  point  of  law  been  made  ;  but  held,  that 
there  was  sufficient  evidence  of  a  contract  to 
create  an  equitable  mortgage  in  favour  of  B., 
and  upon  which  the  possession  of  the  title  deeds 
by  B.  originated  ;  and  that  there  should  be   a 
redemption  decree  upon  that  footing,  the  costs  of 
B.  being  added  to  her  security.     McMahony  In 
re,  McMahon    v.   McMahon,  56    L.    T.   739— 
Chitty,  J. 

Shares  — I  0  V— Intention  of  Donor.]— A. 

held  certain  bank  shares  in  trust  for  his  father 
B.,  under  a  written  acknowledgement  of  the 
trust.  B.  indorsed  on  the  acknowledgment :  "  I 
transfer  these  shares  to  my  daughter  C.  for  her 
sole  use  and  benefit."— B.  also  held  two  I  0  U's, 
one  from  A.,  the  second  from  another  person  in- 
debted to  him.  Upon  each  of  these  B  indorsed  : 
"  I  transfer  the  debt  of  £  to  my  daughter  C. 
for  her  sole  use  and  benefit."  B.  signed  these 
indorsements,  and  handed  the  acknowledgment 
and  I  0  U's  to  C.  There  was  no  consideration 
for  the  transfer.  B.  did  not  give  any  notice  of  it 
to  A.  or  the  debtor  upon  the  second  I  0  U,  and 
continued  till  his  death,  five  years  later,  to 
receive  the  dividends  on  the  shares  and  the  in- 
terest on  A.'s  I  0  U  .-—Held  that,  although  the 
indorsements,  accompanied  by  the  delivery  of 
the  acknowledgment  and  I  0  U's  were  capable, 
if  followed  by  notice  to  the  trustees  and  debtors, 
of  operating  as  equitable  assignments,  yet  as  it 
appeared,  having  regard  to  the  evidence  and 
especially  to  B.'s  receipt  of  the  subsequent  divi- 
dends and  interest,  that  he  did  not  intend  at  the 


time  of  the  indorsement  to  divest  himself  abso- 
lutely of  bis  property  in  the  shares  or  debts, 
but  attempted  at  most  to  effect  a  disposition 
to  become  operative  only  at  his  death,  and  in 
the  meanwhile  to  be  ambulatory  and  revocable, 
they  did  not  constitute  a  complete  gift  enforce- 
able in  equity.  Qason  v.  Rich,  19  L.  R.,  Ir.  391 
— C.A. 


GLEBE. 


See  ECCLESIASTICAL  LAW. 


GOODS. 

Assignment  ol] — See  Bills  of  Sale. 
Selling.]— See  Sale. 
Converting.]— See  Tboveb. 


GOODWILL. 

Definition  of.]— The  goodwill  which  attaches 
to  a  house  from  its  being  well  known  or  situated 
in  a  good  thoroughfare  adds  to  the  value  of  the 
house  and  would  pass  to  the  mortgagee  under  a 
mortgage  of  the  house  ;  but  the  goodwill  which 
attaches  to  the  personal  reputation  of  the  owner 
of  the  house  would  not  pass  to  the  mortgagee. 
Per  Cotton,  L.  J.  Cooper  v.  Metropolitan  Board 
of  Works,  25  Ch.  D.  472  ;  53  L.  J.,  Ch.  109 ;  60 
L.  T.  602  ;  32  W.  R.  709— C.  A. 

Sale  of— Covenant  by  Vendor  not  to  carry 
on  Business  in  his  Hame.]-  A  covenant  by  a 
vendor  of  a  business  and  the  goodwill  thereof, 
that  he  would  not  for  a  term  of  years  carry  on 
the  business  of  a  manufacturer  either  by  himself 
or  jointly  with  any  other  persons  under  the  name 
or  style  of  J.  H.,  or  H.  Brothers,  the  name  of  the 
business  which  he  had  sold,  is  not  a  covenant  that 
the  vendor  would  not  carry  on  business  as  a 
manufacturer,  but  against  using  a  particular 
name  or  style  in  trade,  and  an  injunction  was 
granted  to  restrain  a  breach  of  the  corenant 
Vernon  v.  HaUam,  34  Ch.  D.  748  ;  56  L.  J..  Ch. 
115  ;  55  L.  T.  6^6  ;  35  W.  R.  156— Stirling,  J. 

Soliciting     Customers  —  Injunction    t» 

Restrain.] — Where  a  vendor  sold  his  busine* 
and  commenced  a  similar  business  in  the  same 
locality  and  solicited  customers  of  the  old  boose 
to  deal  with  him,  the  court,  following  the  de- 
cision in  Pearson  v.  Pearson  (27  Ch.  D.  145), 
and  being  of  opinion  that  the  case  of  Labcmcsert 
v.  Dawson  (13  L.  R.,  Eq.  322)  had  been  over- 
ruled by  the  decision  in  that  case,  refused  to 
grant  an  injunction  to  restrain  such  solicitation. 
lb. 


845 


HABEAS    CORPUS. 


816 


T.  P..  as  trustee  of  a  will,  carried  on  a  business 
which  hail  been  carried  on  by  the  testator  under 
the  name  of  James  P.  By  an  agreement  made 
to  compromise  a  suit,  James  P.,  a  son  of  the 
testator  and  a  beneficiary  under  his  will,  agreed 
to  sell  to  T.  P.  all  his  interest  in  the  business, 
and  in  the  property  on  which  it  was  carried  on. 
And  it  was  provided  that  nothing  in  the  agree- 
ment should  prevent  James  P.  from  carrying  on 
the  like  business  where  he  should  think  fit,  and 
under  the  name  of  James  P.  T.  P.  brought  this 
action  to  enforce  this  agreement,  and  to  restrain 
James  P.  from  soliciting  the  customers  of  the 
old  firm.  An  injunction  was  granted  on  the 
authority  of  Labwchere  v.  Dawson  (13  L.  R , 
Eq.  322),  and  the  cases  in  which  it  had  been 
followed  : — Held  (dissentiente  Lindley,  L.J.)» 
that  Labour  here  v.  Dawson  was  wrongly  de- 
cided, and  ought  to  be  overruled,  and  that  even 
apart  from  the  proviso  in  the  agreement,  the 
plaintiff  was  not  entitled  to  the  injunction 
which  he  had  obtained  : — Held,  by  the  whole 
court,  that  the  proviso  in  the  agreement  autho- 
rised the  defendant  to  carry  on  business  in  the 
same  way  as  any  stranger  might  lawfully  do, 
and  took  the  case  out  of  the  authority  of  Labou- 
rer? v.  Dawson,  supposing  that  case  to  have 
been  well  decided.  Pearson  v.  Pearson,  27 
Ch.  D.  145  ;  54  L.  J.,  Ch.  32  ;  51  L.  T.  311  ;  32 
W.  R.  1006— C.  A. 


the  name  of  the  old  firm,  no  arrangement  having 
been  made  a9  to  the  goodwill  of  the  business ; 
that  from  the  nature  of  the  business  and  from 
the  fact  that  the  style  of  the  original  firm  had 
been  used  with  a  variation,  there  was  practically 
no  risk  that  the  plaintiff  would  be  exposed  to 
injury  by  what  the  defendant  was  doing;  and 
that,  therefore,  no  case  had  been  made  for  the 
intermediate  interference  of  the  cou rt.  Chappell 
v.  Griffith,  53  L.  T.  459  ;  60  J.  P.  86— Kay,  J. 


to  Use  old  Kame.l — A  vendor  who 
had  carried  on  a  business  under  the  name  of 
"Madame  Elise,"  which  was  the  name  of  his 
wife,  sold  the  goodwill  and  interest  of  the  busi- 
ness, together  with  the  exclusive  right  of  using 
the  name  of  "  Madame  Elise  and  Company  : " — 
Held,  that  the  purchaser  was  not  entitled  to 
trade  nnder  the  old  name  alone,  inasmuch  as  it 
would  lead  people  to  believe  that  the  old  busi- 
ness was  still  being  carried  on,  and  might  cause 
the  vendor  to  incur  liability.  Chatteris  v. 
ImarsoH,  57  L.  T.  177 — Kekewich,  J. 

A  firm  of  solicitors  consisting  of  three  partners, 
carried  on  business  under  the  style  of  "  Chappell, 
Son.  k  Griffith."    The  senior   partner  having 
died,  the  business  was  continued  by  the  son  and 
the  jonior  partner  under  the  same  style  for 
upwards  of  three  years.    The  partnership  was 
then  dissolved,  an  agreement  being  executed 
providing  for  the  dissolution,  but  containing  no 
reference  to  the  goodwill  of  the  business  or  the 
sale  or  disposal  thereof.    After  the  dissolution, 
the  business  of  a  solicitor  was  carried  on  by 
Chappell,  the  son,  on  the  premises  held  by  the 
original  firm  under  the  style  of  "  Chappell  k 
foil"    Griffith,  having  taken  offices  a  few  doors 
off  also  carried  on  the  business  of  a  solicitor, 
nnder  the  style  of  "  Chappell  k  Griffith."    To 
this  Chappell  objected,  and  having  commenced 
an  action  to  restrain  Griffith  from  carrying  on 
bttriness  under  the  style  referred  to,  moved  for 
an  interim  injunction.    It  was  proved  that  im- 
mediately before  the  dissolution  of  the  partner- 
ahip,  Griffith  had  written  to  Chappell,  stating 
that  he  intended  to  carry  on  business  under  the 
rtyle  of  "Chappell   k  Griffith,"  and    making 
wppestions  as  to  the   style    Chappell    should 
adopt.      Circulars    were    also    forwarded    by 
Griffith  to  all  the  clients  of  the  old  firm,  inform- 
ing them  that  he  proposed  to  carry  on  the  busi- 
ness of  a  solicitor  by  himself,  and  stating  the 
style  that  he  intended  to  adopt :— Held,  that  the 
prima  facie  right  of  the  defendant  was  to  use 


GROWING  CROPS. 

See  BILLS  OF  SALE. 


GUARANTEE. 

See  PRINCIPAL  AND  SURETY. 


GUARDIAN. 

Of  Infante.]—  See  Infant. 
Of  Poor.]— See  Poob  Law. 


HABEAS   CORPUS. 

Prisoner  wishing  to  argue  Case  in  Person,]— 
The  court  cannot  grant  a  habeas  corpus  to  a  party 
to  a  suit,  in  custody,  to  enable  him  to  appear  in 
court  merely  for  the  purpose  of  arguing  his  case 
in  person.  Weldon  v.  Keal,  15  Q.  B.  D.  471 ;  64 
L.  J.,  Q.  B.  399  ;  33  W.  R.  681— D. 

Appeal  to  Court  of  Appeal.]— See  cases,  ante, 
col.  23. 


HARBOURS. 

See  SHIPPING. 


847 


HEALTH — Election  and  Constitution  of  Local  Boards. 


848 


HEALTH. 


I.  Election  and  Constitution  of  Local 
Boards,  847. 

II.  Powers  and  Jurisdiction  op  Local 
Boards. 

1.  Food  and  Drugs, 

a.  Adulteration,  848. 

b.  Sale  of  Unsound  Meat,  851. 

2.  Street*,  852. 

3.  Buildings,  855. 

4.  Sewers,  859. 

5.  Nuisances  and  Offensive  Trades,  861 . 

6.  Lodging  Houses,  864. 

7.  In  otlter  Cases,  864. 

III.  Expenses— Payment  and  Recovery  of, 

866. 

IV.  Rates,  870. 

V.  Arbitration,  873. 
VI.  Contracts  by  and  with  Local  Boards. 

1.  In  General,  874. 

2.  Liability  of  Officers  for  Penalties, 

875. 

VII.  Actions    and    Proceedings    against 
Local  Boards,  877. 

I.  ELBCTIOK  AHD  C0H8TTTTJTI0H  OF  LOCAL 

BOARDS. 

Disqualification  of  Candidate  —  Composition 
with  Creditors — Time  for  filling  casual  Vacancy.] 
— A  candidate  fur  election  as  member  of  a  local 
board  of  health  had  assigned  all  his  property  by 
deed  to  a  trustee  for  the  benefit  of  those  of  his 
creditors  who  should  sign  the  deed,  no  sum  being 
mentioned  in  it  as  a  composition  to  be  paid  on 
the  debts  therein  scheduled  as  due  to  them,  and 
the  creditors  signing  the  deed  thereby  discharged 
him  from  all  debts  due  to  them  by  him  : — Held, 
that  he  was  not  disqualified  under  38  &  39  Vict. 
c.  65,  Sched.  II.,  r.  5,  which  provides  that  a 
person  "who  has  entered  into  any  composition 
with  his  creditors,"  shall  be  ineligible  "  so  long 
as  any  proceedings  in  relation  to  such  composi- 
tion are  pending,"  even  though  at  the  time  of 
his  election  some  of  his  creditors  had  signed  the 
deed,  while  others  did  not  sign  it  till  after  the 
election,  for  that  the  deed  was  not  a  composition 
with  creditors.    Reg.  v.  Cooban,  infra. 

Illegal  Practice— Fabricating  Voting  Paper- 
Falsely  assuming  to  act  on  behalf  of  Voter.]— 
The  respondent,  a  candidate  at  an  election  for 
members  of  a  local  board  of  health,  called  at  the 
house  of  a  voter  to  whom  a  voting  paper  had 
been  sent,  and  asked  her  how  she  intended  to 
vote,  and  to  hand  him  the  voting  paper,  which 
she  did.  He  then  inquired  if  she  knew  how  to 
fill  it  up,  and  she  replied  in  the  affirmative.  The 
respondent  thereupon,  without  any  authority, 
express  or  implied  from  the  voter,  wrote  in 
pencil  the  initials  of  the  voter  against  his  own 
name.  The  voter  objected  to  his  doing  so.  The 
respondent  left  the  voting  paper  with  the  voter, 
with  her  initials  so  written  by  him  against  his 
own  name,  but  with  no  other  mark  upon  it.  The 
voter  subsequently  struck  out  the  initials  so 
written  by  the  respondent,  and  placed  her 
initials  against  the  names  of  three  other  candi- 
dates, and  signed  her  own  name  to  the  voting 


— Seven  members  of  a  local  board  constituted 
under  the  Public  Health  Act.  1875,  and  consist- 
ing of  nine  members,  resigned,  so  that  the 
quorum  of  three  required  by  Sched.  I.  r.  2,  wss 
not  left.  The  two  remaining  members  proceeded 
to  fill  up  the  vacancies.  The  board  as  thus  con- 
stituted prescribed  a  building  line  under  s.  155 
of  the  act : — Held,  by  Pearson,  J.,  that,  as  the 
resignations  reduced  the  number  of  members  to 
less  than  a  quorum,  the  board  had  lapsed,  that 
the  two  remaining  members  could  not  till  up  the 
vacancies,  that  there  was  therefore  no  board, 
that  the  building 'line  was  therefore  not  well 
prescribed,  and  that  Sched.  I.  r.  9,  to  the  act  did 
not  cure  the  defect : — Held,  by  the  Court  of 
Appeal,  that  the  filling  up  of  vacancies  was 
u  business  "  within  the  meaning  of  Sched.  L  r.  2, 
that  the  two  members  were  not  competent  to 
transact  it,  and  that  the  new  members  therefore 
were  not  duly  elected ;  but  that  by  Sched.  I.  r.  9, 
the  objection  to  the  building  line,  founded  on 
the  fact  that  some  of  the  members  of  the  board 
were  not  duly  elected,  was  removed.  Newkaten 
Local  Board  v.  Newliaren  Scliool  Board,  30  Ch. 
D.  350;  53  L.  T.  571 ;  34  W.  R.  172— C.  A. 

II.    POWERS  AHD  JTTBI8DICTION  OF  LOCAL 

B0ABDS. 

1.     FOOD  AND   DRUGS. 

a.    Adulteration. 

Scienter  of  Seller.]— By  s.  6  of  the  Sale  of 
Food  and  Drugs  Act,  1875,  ''no  person  shall 
sell  to  the  prejudice  of  the  purchaser  any  article 
of  food  or  any  drug  which  is  not  of  the  nature, 
substance,  and  quality  of  the  article  demanded 
by  such  purchaser,  under  a  penalty  not  exceeding 
26/."  :— Held,  that  an  offence  within  that  section 
was  committed,  although  the  seller  did  not  know 
that  the  article  sold  was  not  of  the  nature, 
substance,  and  quality  demanded.  Betts  v. 
Armstead,  20  Q.  B.  D.  771  ;  57  L.  J.f  M.  C.  100; 
68  L.  T.  811  ;  36  W.  R.  720 ;  52  J.  P.  471— D. 


paper.  It  was  found  that  the  respondent  so 
pencilled  the  initials  of  the  voter  with  the  intent 
of  indicating  on  her  behalf  that  she  intended  to 
vote  for  him,  and  of  inducing  and  procuring  her 
to  vote  for  him.  The  respondent  was  successful 
at  the  poll.  A  petition  was  lodged  against  his 
return,  on  the  ground  of  illegal  practices,  inter 
alia,  of  fabricating  in  whole  or  in  part  a  voting 
paper,  and  of  falsely  assuming  to  act  in  the  ' 
name  or  on  behalf  of  a  voter  : — Held,  that  the 
act  of  the  respondent  did  not  amount  to  a  fabri- 
cation in  whole  or  in  part  of  the  voting  paper, 
nor  to  fnlsely  assuming  to  act  in  the  name  or 
on  behalf  of  the  voter,  within  the  meaning  of  | 
rule  69  of  Sched.  11.,  part  1.  of  the  Public  Health 
Act,  1875.  Oovgh  v.  Murdoch,  57  L.  T.  308; 
35  W.  R.  836  ;  51  J.  P.  471— D. 

Casual  Vacancy — Computation  of  Time.]— The 
time  specified  by  r.  65  of  Schedule  II.  of  the  Public 
Health  Act.  1875,  which  provides  that  any  casual 
vacancy  on  the  board  occurring  "  by  failure  duly 
to  elect,*'  shall  be  filled  up  by  the  board  within 
six  weeks,  is  to  be  computed  from  the  day  on 
which  the  retiring  member  goes  out  of  office,  and 
not  from  the  day  on  which  the  election  of  a  mem- 
ber to  fill  his  place  is  held.  Reg.  v.  Cooban,  18 
Q.  B.  D.  269  ;  56  L.  J.,  M.  C.  33  ;  51  J.  P.  500— D. 

Quorum — Lapse  of  Board — Informality.] 


HEALTH — Powers  and  Jurisdiction  of  Local  Boards. 


850 


■ «.  i 


—station  at  Time  of  Sale.] — To  con- 

»•  <«f fence  under  s.  6  of  the  Food  and 

a.  t     1875,   the    representation    of    the 

-  -i  stance,  and  quality  "  of  the  article 

i%ie  at  the  time  of  the  sale.    A  prior 

■-■•«.*  ■>» /citation  in  this  respect  is  no  offence 

»'•»  act.  provided  a  true  one  is  made  at 

J  •■  tiii»  sale  actually  takes  place.    Kirk  v. 

*  i'.  g.  K.  D.  49  ;  55  L.  J.,  M.  C.  182  ;  54 

*  *  ;  .»*  W.  R.  295 ;  50  J.  P.  148— D. 

--"tare  of  Opium— British  Pharmacopoeia— 
■va  of  Quality.] — Upon  a  complaint  under 
•■in-  i-  od  and  Drugs  Act,  1876,  for  selling 
«■   *i  opium  which  was  not "  of  the  nature, 

•■i  •«•. « -r  quality,"  of  the  article  demanded 

-  nu  i  •  u  tser,  it  appeared  that  the  drug  which 

i  .4-.  •'  tincture  of  opium  "  by  the  defendant 

-»-!M'  •  ut    in  opium  to  the  extent  of  one 

si::  i  .n  alcohol  to  the  extent  of  nearly  one 

■■  >  •  ti: pared  with  the  standard  prescribed 
-■»  15: it  «>h  Pharmacopeia: — Held,  that  the 
*"M  i:  was  liable  to  be  convicted,  although 
••-,..    a-cr  had    not  specifically  asked  for 

-■_•  •;.  opium  "prepared  according  to  the 
"  in  the  British  Pharmacopoeia."     White  v. 

'..-.  V\  Q.  B.  D.  582  ;  36  W.  R.  280  ;  51 

*.e  sold,  wholly  different  from  that  Bo- 
•    —The  Sale  of  Food  and  Drugs  Act, 

■  .::  r  reciting  that  it  is  desirable  to  amend 

.'  warding  the  sale  of  f(X>d  and  drugs  in 

-nil  genuine  condition,  provides  by  s.  6 

■■  person  shall  sell  to  the  prejudice  of  the 

/  any  article  of  food  or  any  drug  which 

-f  the  nature,  substance,  and  quality  of 

*  -  l<>  demanded  by  such  purchaser  under  a 
y  : — Held,  that  s.  6  was  not  limited  in  its 

~*r>>m  to  sales  of  adulterated  articles,  but 
;  applied  also  to  cases  in  which  the  article 
v,as  ut  adulterated  but  wholly  different 
rtiat  demanded  by  the  purchaser.  Knight 
«v  nr,  14  Q.  B.  D.  845  ;  54  L.  J.,  M.  C.  108  ; 
.  T.  234  ;  33  W.  R.  613  ;  49  J.  P.  614;  15 
' '.  C.  728— D. 

ilk— Skimmed  Milk.] — Ft  was  proved  on  an 
-..  ition  under  s.  6  of  the  Sale  of  Fond 
Drugs  Act,  1875,  that  the  appellant,  who 
:<n  inspector  under  the  act,  on  asking  the 
-•".dent,  a  milk  seller,  for  "milk,"  was  sup- 
.  hj  the  respondent  with  milk  which  had 

■  -kimmed,  and  which  was,  in  consequence, 
upared  with  normal  milk  as  it  comes  from 

jw,  deficient  in  butter  fat  to  an  extent  of 
•  r  cent. : — Held,  that  on  these  facts  it  was 
proved  that  any  offence  had  been  committed 
•fie  respondent  against  the  provisions  of  s.  6 
lie  8ale  of  Food  and  Drugs  Act,  1875.  Lane 
t'Mims,  14  Q.  B.  D.  193  ;  54  L.  J.,  M.  C. 
;  52  L.  T.   257 ;   33  W.  R.  365  ;   49  J.   P. 


i— Kixtnro  with  Chicory — Article  aaked 
**•] — A.  went  into  H.'s  shop  and  asked  for  half 
*Wmd  of  coffee,  H.  said  she  did  not  keep  it, 
rkatoa  A.  pointed  to  certain  tins  labelled 
"tJffee  and  chicory."  H.  said  she  sold  that  as 
atrixtnre,  and  A.  asked  for  half  a  pound  of  it 
*fcfch  H.  sold.  The  mixture  contained  about  30 
fVeent.  of  coffee.  H.  was  charged  with  selling 
"  not  of  the  nature,  etc.,  of  coffee  :—  Held, 
the  justices  were  wrong  in  convicting  H.  of 


selling  coffee,  for  that  she  sold  only  a  mixture  as 
she  was  entitled  to  do,  and  in  doing  which,  she 
committed  no  offence  within  s.  6  of  38  and  39 
Vict.  c.  63.    Wiggins  v.  Hall,  51  J.  P.  293— D. 

Kotice  to  Seller— Sufficiency.] — W ,  the  seller 
of  spirits,  was  informed  after  the  purchase  that 
the  article  was  to  be  examined  by  the  "county 
analyst"  and  W.  knew  that  the  county  analyst 
was  the  public  analyst  of  the  place  ■ — Held,  that 
this  notice  to  W.  was  sufficient,  though  the  words 
"public  analyst"  were  not  expressly  used  by 
the  purchaser.  Whreker  v.  Webb,  51  J.  P.  661 
— D. 


Condition  Precedent.]  —  The  provisions 


of  8.  14  of  the  Sale  of  Food  and  Drugs  Act,  1875, 
do  not  apply  to  the  purchase  of  an  article  unless 
for  analysis,  and  therefore  it  is  not  a  condition 
precedent  to  the  right  of  a  purchaser  for  con- 
sumption to  take  proceedings  for  a  penalty  under 
the  Act  that  he  should  have  given  to  the  seller 
the  notification  required  by  that  section.  Parson* 
v.  Birmingham  Dairy  Co.  (9  Q.  B.  D.  172), 
dissented  from.  Enniskillen  Union  (Guardian*) 
v.  Milliard,  14  L.  It.,  Ir.  214— Ex.  D. 


Sale — Corporation.] — A  sample  of  milk 


in  course  of  delivery  by  the  defendant's  servant 
under  a  contract  for  the  delivery  thereof  to  a 
workhouse,  was  procured  for  analysis  by  the 
master  of  the  workhouse,  and  divided  by  him 
into  three  portions,  one  of  which  he  retained, 
another  he  gnve  to  the  defendant's  servant,  and 
the  third  he  inclosed  in  a  bottle  labelled  "  milk," 
and  having  on  it  the  name  of  the  contractor, 
and  sent  it  by  rail  to  the  public  analyst,  who 
analysed  it,  and  gave  his  certificate  as  provided 
by  the  statute.  The  defendant  having  been  fined 
for  the  act  of  adulteration  : — Held,  that  a  pur- 
chase was  shown  under  the  Sale  of  Food  and 
Drugs  Acts,  1875,  there  being  a  buyer  on  one 
side  and  seller  on  the  other  ;  that  the  provisions 
of  8.  14  of  that  statute  did  not  apply,  and  no 
notification  was  necessary  as  a  condition  pre- 
cedent to  the  bringing  of  the  prosecution ;  that 
there  was  sufficient  evidence  that  the  milk  taken 
was  the  milk  submitted  to  analysis  :  and  that  a 
corporation  such  as  the  board  of  guardians  was 
withiu  the  statute.     lb. 


Offer  to  divide  Sample] — E.  purchased  a 


pint  of  milk  from  (J.,  and  after  the  purchase 
told  C.  that  he  intended  to  have  the  milk 
analysed,  and  then  offered  to  divide  it  with  the 
seller  who  refused  to  accept  it.  The  milk  was 
found  to  be  adulterated  to  the  extent  of  nine 
and  a-half  degrees  of  added  water  : — Held,  that 
it  was  not  necessary  for  E.  before  the  purchase 
to  offer  to  divide  the  milk  into  three  parts  in  so 
many  words,  and  that  this  offer  was  a  substantial 
compliance  with  the  statute.  Chapell  v.  Em  ton, 
48  J.  P.  200— D. 

Written  Warranty —Contract  to  supply  Milk 
Daily.]— By  s.  25  of  the  Sale  of  Food  and 
Drugs  Act,  1875,  if  the  defendant,  in  any  prose- 
cution under  this  act,  prove  to  the  satisfaction  of 
the  justices  that  he  had  purchased  the  article  in 
question  as  the  same  in  nature,  substance,  and 
quality  as  that  demanded  of  him  by  the  prose- 
tutor,  and  with  a  written  warranty  to  that 
effect,  he  shall,  under  certain  other  specified 
conditions,  be  entitled  to  be  discharged  from  the 


851 


HEALTH — Powers  and  Juriadiction  of  Local  Boards. 


m 


prosecution.  Upon  the  hearing  of  an  informa- 
tion against  the  appellant,  for  having,  contrary 
to  the  provisions  of  the  act,  sold,  on  the  12th  of 
April,  1883,  certain  milk  to  the  respondent, 
which  was  not  of  the  nature,  substance,  and 
quality  demanded  by  him,  as  it  contained  a 
percentage  of  water,  the  appellant  proved  that 
he  had  purchased  the  article  in  question  under  a 
written  contract  made  with  F.,  on  the  24th  of 
March,  1883,  whereby  P.  agreed  to  sell  to  the 
appellant  eighty-six  gallons  of  good  and  pure 
milk  (each  and  every  day)  for  six  months,  the 
said  milk  to  be  delivered  twice  daily  : — Held, 
that  this  contract  did  not  constitute  a  written 
warranty  within  the  meaning  of  s.  25  in  respect 
of  the  specific  article  sold  by  the  appellant  to  the 
respondent  on  the  12th  of  April ;  and  therefore 
that  the  appellant  was  not  entitled  to  be  dis- 
charged from  the  prosecution.  Harris  v.  May, 
12  Q.  B.  D.  97  ;  53  L.  J.,  M.  C.  39 ;  48  J.  P. 
261—  D. 


b.  Sale  of  Unsound  Meat. 

Evidence  that  Meat  was  wrongly  Condemned 
— Admissibility.] — Meat  exposed  by  a  butcher 
for  sale  was  seized  and  condemned  under  the 
Public  Health  Act,  1875,  ss.  116  and  117,  as 
unfit  for  the  food  of  man.  Upon  a  charge 
against  the  butcher  under  s.  117  (which  enacts 
that  the  person  to  whom  the  meat  seized  and 
condemned  belonged  shall  be  liable  to  a  penalty), 
the  justices  admitted  evidence  that  the  meat  was 
sound  and  fit  for  the  food  of  man,  and,  being 
satisfied  that  it  was  so,  dismissed  the  charge  : — 
Held,  that  the  justices  decided  correctly.  Waye 
v.  Thompson,  15  Q.  B.  D.  342  ;  54  L.  J.,  M  C. 
140 ;  53  L.  T.  358  ;  33  W.  R.  733  ;  49  J.  P.  693  ; 
15  Cox,  C.  C.  785— D. 

Under-bailiff—  Person  "  to  whom  the  same  be- 
longs/']— The  appellant  was  an  undcr-bailiff  on 
the  estate  of  N.,  a  large  landowner,  and  it  was 
his  duty  to  receive  instructions  from,  and  obey 
the  orders  of,  the  head  bailiff.  Two  cows  be- 
longing to  N.  were  slaughtered,  as  they  were 
affected  by  disease ;  the  appellant  was  not 
present  when  the  cows  were  slaughtered,  but  on 
the  same  day  he  was  told  by  the  head  bailiff  to 
send  the  meat  to  Portsmouth,  and  to  go  there 
himself  to  meet  it.  The  appellant  went  to 
Portsmouth  on  the  following  day  and  saw  a 
butcher  named  B.,  and  on  the  next  day,  the 
head  bailiff,  having  been  told  that  the  meat  had 
not  been  sent  off,  directed  the  appellant  to  take 
the  meat  to  P.  railway-station  and  consign  it  to 
the  butcher.  The  transit  of  the  meat  to  the  P. 
station  was  superintended  by  the  appellant,  who 
took  charge  of  it.  It  was  then  sent  by  train  in 
the  appellant's  own  name  to  the  butcher  at 
Portsmouth,  the  appellant  sending  a  telegram 
to  the  butcher,  "  Two  carcases  of  meat  addressed 
to  you  ,*  make  best  of  it."  The  butcher  replied 
that  the  meat,  which  was  then  lying  at  Ports- 
mouth railway-station,  was  of  no  use  to  him.  The 
appellant  then  sent  a  telegram  to  the  station- 
master  :  "  Ask  consignee  to  do  the  best  he  can. 
If  he  can't  dispose  of  it,  ask  him  to  bury  it,  and 
charge  sender  expenses."  The  meat  was  seized 
while  lying  at  the  station,  and  condemned  as 
unsound.  Upon  these  facts  the  appellant  was 
convicted,  under  the  117th  section  of  the  Public 
Health  Act,  1875,  of  exposing  unsound  meat  for 


sale,  as  being  the  person  "  to  whom  the  same 
belonged  "  : — Held,  quashing  the  conviction, 
that  there  was  no  evidence  whatever  upon  the 
facts,  to  show  that  the  appellant  was  the  person 
"to  whom  the  meat  belonged"  within  tbe 
meaning  of  s.  117  of  the  act.  Newton  r.  Monk- 
corn,  58  L.  T.  231  ;  51  J.  P.  692  ;  16  Cox,  C.  C. 
382— D. 

Condemnation  day  after  Seizure  —  Whether 
Delay  reasonable.] — Where  unsound  meat  wa» 
seized  by  the  inspector  of  nuisances  at  half-past 
nine  in  the  evening,  and  he  then  went  in  search 
of  a  justice,  but  did  not  find  one  till  next  morn* 
ing  at  a  quarter-past  ten,  when  an  order  to  con- 
demn the  meat  was  made : — Held,  that  there 
had  been  no  unreasonable  delay,  and  that  the 
justices  were  wrong  in  dismissing  on  that  ground 
an  information  for  having  unsound  meat  for  sale 
within  the  meaning  of  sections  116  and  117  of 
the  Public  Health  Act,  1875.  Burton  t. 
Bradley,  51  J.  P.  118— D. 


2.  STREETS. 

"Hew  Street"— Old  Country  Boad.]-The 
term  "new  street"  in  the  Public  Health  Act, 
1875,  s.  157,  applies  to  an  old  country  road 
near  a  town  which,  by  the  building  of  houses 
along  it,  has  become  a  street  in  the  common 
sense  of  the  word,  notwithstanding  that  before 
the  building  of  such  houses  it  was  a  street 
within  the  meaning  of  s.  4  of  the  act.  RflHum 
v.  Barton  Local  Board,  8  App.  Cas.  798 ;  53  L.  J* 
Ch.  226  ;  50  L.  T.  57  ;  32  W.  R.  249  ;  48  J.  P. 
276— H.  L.  (E). 

"  Street  '—Meaning  of,  in  Section  150  of  tie 
Public  Health  Act,  1875.]— 8.  150  of  the  Public 
Health  Act,  1875,  applies  only  to  streets  which 
are,  in  the  ordinary  and  popular  sense  of  the 
words,  "streets;"  and  the  word  "street"  in 
that  section  does  not  necessarily  include  ever/ 
meaning  given  to  it  by  s.  4  of  the  Act.  Ay.  ▼• 
Burnup,  50  J.  P.  598— D. 

In  summary  proceedings  to  recover  expenses 
under  s.  150,  it  is  for  the  justices,  having  regard 
to  the  surrounding  circumstances,  and  to  whether 
there  is  any  intention  of  building  along  a  road 
so  as  to  convert  it  into  a  street,  to  find  as  a  fact 
whether  the  road  in  question  is  a  street  in  the 
ordinary  and  popular  sense  of  the  word  ;  and  it 
makes  no  difference  that  the  section  has  been 
applied  or  may  apply  to  a  portion  of  the  road 
other  than  that  in  question.  Where  the  justices 
find  a  road  or  a  portion  of  a  road  is  not  a  street 
in  the  ordinary  and  popular  sense,  they  will  bs 
right  in  holding  that  the  section  is  not  applic- 
able to  the  road  or  portion  of  a  road.    lb. 

A  private  road  may  be  a  street  within  the 
meaning  of  s.  150  of  the  Public  Health  Act,  1873. 
Midland  Railway  v.  Watt  on,  infra. 

The  meaning  of  "street"  in  s,  150  of  the 
Public  Health  Act,  1875,  includes  such  of  the 
terms  set  out  in  the  interpretation  clause  (s.  *) 
as  are  not  inconsistent  with  the  context  or  sub- 
ject matter  of  that  section  ;  and  such  extended 
meaning,  if  so  applicable,  must  be  read  into  the 
word  "  street "  throughout  the  section,  without 
regard  to  the  particular  work  to  be  done  under 
it.  Jowett  v.  Idle  Local  Board,  36  W.  R.  530- 
C.  A.    Affirming  57  L.  T.  928 ;  36  W.  R.  138-& 


858 


HEALTH — Powers  and  Jurisdiction  of  Local  Boards. 


854 


—  Question  of  Law— Direction  to  Jury.]— 
—The  question  whether  the  place  in  dispute 
comes  within  the  interpretation  clause  is  one  of 
law  for  the  judge  at  the  trial,  and  the  question 
which  may  properly  be  left  to  the  jury  is  whether 
the  said  place  is  u  a  street  in  the  popular  accep- 
tation of  the  term."    /&.— D. 

Strip  of  Land  added  to  Highway  Re- 
pairable by  Inhabitants  at  Large.]— Owners  of 
land  adjoining  a  highway  repairable  by  the 
inhabitants  at  large,  erected  houses  on  their  land, 
rod  threw  open  to  the  highway  a  strip  of  land  in 
front  of  them  : — Held,  that  the  houses  with  the 
ttrip  of  land  in  front,  together  formed  a  "  street " 
within  the  meaning  of  s.  150  of  the  Public 
Health  Act,  1875  (38  &  39  Vict.  c.  55),  which 
the  urban  sanitary  authority  within  whose 
district  it  was  situate  could  compel  the  frontagers 
to  pare,  channel,  and  kerb  under  the  provisions 
of  that  section.  Richard*  v.  Xestick,  57  L.  J., 
M.  C.  48  ;  59  L.  T.  318  ;  52  J.  P.  756— D. 

"Highway  Repairable  by  Inhabitants  at 

Large."]— The  promoters  of  an  intended  road  by 
deed  declared  that  the  road  should  not  only  be 
enjoyed  by  them  for  their  individual  purposes, 
bat a  should  be  open  to  the  use  of  the  public  at 
large  for  all  manner  of  purposes  in  all  respects 
as  a  common  turnpike  road  ' : — Held,  that  this 
was  not  a  dedication  of  the  road  to  the  public, 
and  that  the  road  was  not  a  highway  repairable 
bjthe  inhabitants  at  large  under  s.  150  of  the 
Public  Health  Act,  1875.  Austerberry  v.  Old- 
ham  Corporation,  29  Ch.  D.  750  ;  55  L.  J.,  Ch. 
€33 ;  53  L.  T.  543  ;  33  W.  R.  807  ;  49  J.  P.  532 
-C.A. 


men.  The  householders  of  Sackville  Street,  with 
very  few  exceptions,  objected  to  the  proposed 
change  in  its  name  on  the  ground  of  incon- 
venience and  of  detriment  to  their  trades  and 
businesses  :— Held,  in  an  action  by  some  of  the 
objecting  householders,  that  the  corporation 
had  no  power,  either  by  statute  or  at  common 
law,  to  make  the  change,  and  that  even  if  they 
possessed  such  power  the  court  had  jurisdiction 
to  restrain  them  from  doing  so,  if  satisfied  that 
the  proposed  change  would  be  injurious  to  the 
owners  or  occupiers  of  houses  in  the  street. 
Anderson  v.  Dublin  Corporation,  15  L.  R.,  Ir. 
410-V.-C. 

Liability  to  Fence  Lands  abutting  on  High- 
Wfty.]— By  s.   81   of    the  Rotherham   Borough 
Extension    and    Sewerage  Act,  1879,  "If  the 
corporation  are  of  opinion  that  danger  to  the 
public  is  likely  to  ensue  by  reason  of  lands 
abutting  on  streets  not  being  fenced,  the  owner 
of  such  land  shall,  when  required  by  the  corpora- 
tion, and  to  their  satisfaction,  sufficiently  fence 
off  the  land  from  the  street,  and  shall  afterwards 
keep  such  fence  in  good  repair  to  the  satisfaction 
of  the  corporation,  and  if  he  fails  so  to  fence  or 
repair  as  aforesaid,  within  fourteen  days  after 
notice  for  that  purpose  given  to  him  by  the 
corporation,  the  corporation  may  fence  or  repair 
and  recover  the  expenses  for  so  doing  from  him 
1  under  the  Public  Health  Act,  1875 :  "—Held,  that 
1  this  act  did  not  apply  to  fences  by  the  side  of  a 
1  road  which  had  been  a  turnpike  highway,  but 
applies  only  to  new  streets  where  there  are  no 
fences,  and  which,  in  the  opinion  of  the  corpora- 
tion, are  dangerous  to  the  public.    Rotherham 
(Mayor)  v.  FuHerton,  60  L.  T.  364— D. 


"Turnpike  Bead."] — Semble,  an  indivi- 
dual cannot,  without  legislative  authority,  dedi- 
cate a  road  to  the  public  if  he  reserves  the  right  to 
charge  tolls  for  the  user  ;  and  the  mere  fact  that 
a  number  of  persons  form  themselves  into  a 
company  for  making  and  maintaining  a  road, 
and  erect  gates  and  bars  and  charge  tolls,  does 
not  make  the  road  a  "  turnpike  road  "  in  the 
sense  of  a  turnpike  road  made  such  by  act  of 
parliament,  and  so  dedicated  to  the  public.    lb. 

The  owners  of  a  road  put  up  bars  upon  it  and 
took  tolls  from  the  public  for  the  passage  of 
Tehicles,  horses,  and  cattle : — Held,  that  such 
road  was  not  a  turnpike  mad  within  the  mean- 
ing of  the  exception  contained  in  the  definition 
<rf  u  street "  given  by  s.  4  of  the  Public  Health 
Act,  1875.  Midland  Railway  v.  Watton,  17  Q. 
B.  D.  30  ;  55  L.  J..  M.  C.  99  ;  54  L.  T.  482  ;  34 
W.  R.  524  ;  60  J.  P.  405— C.  A. 

Power  of  Local  Authority  to  change  Kama.]— 
By  s.  6  (1)  of  the  Towns  Improvement  Clauses 
Act,  1847,  the  Commissioners  might,  from  time 
to  time,  cause  the  houses  and  buildings  in  all  or 
any  of  the  streets  to  be  marked  with  numbers,  as 
they  might  think  fit,  and  should  cause  to  be  .put 
np  or  painted  on  a  conspicuous  part  of  some 
home,  building,  or  place  at  or  near  each  end, 
corner,  or  entrance  of  every  such  street,  the 
name  by  which  such  street  was  to  be  known. 
The  Corporation  of  Dublin  adopted  a  resolution 
that  the  name  of  Sackville  Street  be  changed  to 
0'Connell  Street,  for  the  purpose  of  com- 
memorating by  this  and  other  intended  altera- 
tions in  street  nomenclature  the  past  historical 
events  of  the  country  and  the  names  of  illustrious 


Causing  Obstruction— Persons  walking  abreast 
on   Footpath— Annoying   Passengers.]  —  Three 
defendants  were  convicted   by  the  defendant 
justices,  under  s.  28  of  the  Towns  Police  Clauses 
Act,   1847,  for  obstructing   passengers    in  the 
public  street,  and  unlawfully  preventing  persons 
passing  there.    It  appeared  by  the  evidence  of  a 
police  constable  that  the  three  defendants  were 
standing,  with  three  or  four  other  persons  on  the 
pavement,    blocking    up    the    same.      Several 
persons  had  to  leave  the  footpath  and  go  into 
the  road  in  order  to  pass.    The  constable  spoke 
to  the  defendants,  and  asked  them  to  move  off. 
They  then  walked  up  the  street,  all  three  abreast, 
causing  passengers  who  met  them  to  leave  the 
footpath  and  go  into  the  road.     Again,  later  in 
the  evening,  the  constable  saw  the  three  defen- 
dants walk  up  and  down  the  street  several  times. 
Two  ladies  were  turned  off  the  footpath,  and  one 
lady  said.  "  I  wonder  the  police  do  not  put  a  stop 
to  this,"  but  otherwise  no  complaints  were  made, 
and  no  persons  were  called  to  prove  that  they 
had  been  impeded  by  the  defendants,  nor  could 
the  names  of  any  persons  so  obstructed  be  given 
by  the  witnesses  for  the  prosecution.     S.  28  of 
the  act  provides  that  "  Every  person  who  by 
means  of  any  cart,  carriage,  sledge,  truck,  or 
barrow,  or  any  animal,  or  other  means,  wilfully 
intei  rupts  any  public  crossing,  or  wilfully  causes 
any  obstruction  in  any  public  footpath,  or  other 
public    thoroughfare,"    shall    be    guilty   of  an 
offence  under  the  act,  and  liable  to  a  penalty  :— • 
Held,  that  the  conviction  was  wrong,  and  could 
not  be  sustained.    Reg.  v.  Long,  59  L.  T.  33  ;  52 
J.  P.  630— D. 


1 


855 


HEALTH — Powers  and  Jurisdiction  of  Local  Boards. 


856 


3.  BUILDINGS. 


Building  line— Rebuilding— Board  mislead- 
ing Owners  ]  —The  defendants  being  about  to 
pull  down  a  school  and  erect  a  new  one,  sub- 
mitted plans  to  the  local  board.  The  local 
board  objected  to  the  plans,  giving  as  a  reason 
that  they  violated  a  bye-law,  which  obliged  a 
person  laying  out  a  new  street  to  leave  it  of 
a  certain  width.  This  bye-law  was  not  appli- 
cable, as  South  Lane,  on  which  the  school 
fronted,  was  not  a  new  street.  The  defendants 
disregarded  the  objection,  commenced  their 
works  on  the  5th  of  January,  1885,  laid  the 
foundations  of  the  main  wall  towards  South 
Lane  on  the  12th,  and  proceeded  rapidly  with 
the  erection  of  it.  On  the  22nd  of  January  the 
local  board  prescribed  a  building  line  which  did 
not  interfere  with  the  main  wall,  but  would 
prevent  the  erection  of  certain  annexes  not  then 
•commenced,  lying  between  South  Lane  and  the 
main  wall,  which  annexes  were  shown  on  the 
plans  laid  before  the  board.  The  defendants  had 
.ground  enough  to  allow  of  the  annexes  being 
erected  elsewhere.  The  defendants  proceeded 
with  the  annexes,  and  the  board  brought  their 
action  to  restrain  them  from  building  beyond  the 
line,  and  to  compel  them  to  pull  down  what 
they  had  built  beyond  it : — Held,  that  where  a 
building  is  taken  down  to  be  rebuilt,  a  building 
line  may  be  prescribed  under  6.  155,  for  any 
portion  of  it  which  has  not  been  commenced, 
although  other  portions  have  been  commenced, 
unless  what  has  been  commenced  necessarily  in- 
volves as  a  matter  of  construction  a  projection 
beyond  the  line  afterwards  prescribed,  and  that 
here  no  such  necessity  existed,  as  the  annexes 
could  be  erected  elsewhere.  That  the  com- 
mencemert  of  the  main  building,  therefore,  did 
not  preclude  the  board  from  laying  down  a  line 
which  would  prevent  the  ereciion  of  the  annexes 
which  had  not  then  been  commenced.  Held, 
also,  that  as  the  notice  given  by  the  board, 
though  ineffectual  for  the  purpose  of  em- 
powering them  to  pull  down  the  erection  under 
s.  158,  gave  the  defendants  to  understand  that 
the  board  objected  on  the  ground  that  buildings 
Accurding  to  the  plan  would  make  the  street  too 
narrow,  the  board  had  not  done  anything  to  in- 
duce the  defendants  to  believe  that  they  would 
not  prescribe  a  building  line,  and  that  there  was 
no  equity  to  prevent  the  board  from  exercising 
their  powers  under  s.  155,  on  the  ground  that 
they  had  misled  the  defendants.  Ncwliavcn 
Local  Board  v.  Newharen  School  Board, 
30  Ch.  D.  350 ;  53  L.  T.  571  ;  34  W.  R.  172 
— C.  A. 

«« Bringing  forward"  House — New  Buildings 
on  Land  never  before  built  upon.] — In  the  Public 
Health  Act,  1875  (38  &  39  Vict.  c.  55),  s.  156,— 
which  enacts  that  it  shall  not  be  lawful  in  any 
urban  district  without  the  written  consent  of  the 
urban  authority  to  bring  forward  any  house  or 
building  forming  part  of  any  street,  or  any  part 
thereof,  beyond  the  front  wall  of  the  house  or 
building  on  either  side  thereof — the  expression 
** house  or  building"  does  not  include  new  build- 
ings in  course  of  erection  upon  land  never  before 
built  upon.  Williams  v.  M'allatetj  Local  Board, 
16  Q.  B.  D.  718 ;  65  L.  J.,  M.  C."l33  ;  55  L.  T. 
27  ;  34  W.  R.  517  ;  50  J.  P.  682— D. 

Hew  Street— Approval  of  Local  Authority — 


Erection  of  Buildings  before  whole  Street  con- 
structed.]— The  Sunderland  Local  Improvement 
Act,  1885,  by  s.  37  enacts,  that  it  shall  not  be 
lawful  for  any  person,  except  with  the  consent 
of  the  corporation,  to  erect  or  build,  or  begin  to 
erect  or  build,  any  new  buildings  abutting  upon 
any  new  street  or  part  of  a  new  street,  onlea 
the  corporation  shall  have  previously  approved 
of  the  level  and  available  width  of  such  new 
street  or  part  of  a  new  street,  nor  until  the 
carriage  way  and  footway  of  such  new  street, 
or  part  of  a  new  street,  shall  have  been  formed 
to  such  a  level  and  of  such  a  width,  and  con* 
structed  and  sewered    to   the   satisfaction  of 
the    corporation    in    accordance    with    a  160 
of  the  Public   Health  Act,  1875.    The  appel- 
lants, who  were  builders,  gave  notice  to  the 
Sunderland  local  authority,  the  respondents,  of 
their  intention  to  lay  out  a  certain  new  street, 
the  plans  for  the  construction  of  which  were 
approved  by  the  respondents.   They  subsequently 
gave  notice  that  they  intended  to  erect  four  new 
houses  in  that  street,  the  plans  of  which  were 
submitted  to  and  approved  by  the  respondent!. 
The  appellants  began  to  erect  these  houses  abut- 
ting upon  or  fronting  that  part  of  the  new  street 
which  had  been  sewered,  levelled,  paved, metalled, 
nagged,  and  channelled  to  the  satisfaction  of  the 
respondents  ;  but  the  whole  of  the  new  street  had 
not  been  constructed  and  made  good  to  the  satis- 
faction of   the  respondents  within  s.  37  of  the 
Sunderland  L<  cal  Improvement  Act,  1885.    The 
appellants  were  summoned  in  respect  of  the  in- 
fringement of  thnt  section,  and  were  fined.    They 
appealed  : — Held,  on  appeal,  that  the  conviction 
was  right,  and  that,  as  the  appellants  had  given 
notice  to  lay  out  the  whole  of  a  new  street,  the 
urban  authority,  unler  their  local  act.  were 
entitled  to  withhold  their  consent  to  the  erection 
of  any  house  or  building  abutting  on  the  new 
street  unless  the  whole  of  the  new  street  woe 
constructed  and  sewered  to  their  satisfaction. 
Woodhill    v.   Sundcrlan-d  (Mayor),  57    L.  T. 
303  ;  52  J.  P.  5— D. 

Hew  Building— Wooden  Building  on  WheeU] 
— R.  was  charged  under  the  W.  Improvement 
Act  with  unlawfully  erecting  a  new  building 
without  notice  to  the  local  board.  The  building 
was  made  of  wood,  thirty  feet  long  and  thirteen 
feet  wide,  and  was  brought  along  the  street  on 
wheels,  and  put  at  the  corner  of  a  new  street 
It  had  spouts  and  a  down  corner,  had  a  supply 
of  gas,  and  was  used  as  a  batcher's  shop:-* 
Held,  that  the  justices  were  right  in  treating 
this  as  a  new  building,  and  subject  to  the  ordi- 
nary requirements  as  to  new  buildings.  Richard- 
ton  v.  Broicn.  49  J.  P.  601— -D. 


Question  of  fact— Bye-laws — Penalty.]— 


Bye-laws  were  made  for  the  borough  of  S.,  under 
the  powers  given  by  s.  34  of  the  Local  Govern- 
mem  Act,  1858.  This  act  was  repealed  bv  the 
Public  Health  Act.  1875,  but  by  a.  326  of  the 
latter  act  all  bye-laws  duly  made  under  any  of 
the  sanitary  acts  by  this  net  repealed,  and  not 
inconsistent  with  any  of  the  provisions  of  tail 
act,  shall  be  deemed  to  be  bye- laws  under  that 
act.  The  27th  bye-law  provided  that  every 
person  who  intended  to  erect  auy  new  bailding 
should  give  one  month's  notice  of  such  inten- 
tion, and  send  in  a  plan  of  the  works  to  the 
surveyor  for  the  urban  sanitary  authority.  The 
3 1st  bye-law  provided  that   if    the  owner  or 


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858 


person  intending  to  construct  any  new  building 
tail  to  give  the  required  notices,  or  construct,  or 
cause  to  be  constructed,  any  buildings  contrary 
to  the  provisions  of  any  of  the  said  bye-laws,  he 
■hall  be  liable  for  each  offence  to  a  penalty  not- 
exceeding  bl. ;  and  he  slall  pay  a  further  sum 
not  exceeding  40*.  for  each  day  6uch  buildings 
shall  continue  or  remain  contrary  to  the  said  pro- 
vision. The  appellant  contended  that  he  was  not 
bound  to  give  notice  or  send  a  plan  of  alterations 
he  proposed  to  make  in  his  house,  as  the  altera- 
tions merely  consisted  in  raising  the  old  walls  a 
itorey  higher,  but  he  sent  a  plan,  as  he  said,  as 
a  matter  of  courtesy.  This  plan  was  disap- 
proved of,  and  notice  of  such  disapproval  was 
sent  to  the  appellant,  but  he  went  on  with  the 
buildings.  He  was  then  summoned  by  the 
respondent,  who  was  the  surveyor  for  the  urban 
unitary  authority,  for  neglecting  to  give  notice 
and  send  plans  as  required  by  the  bye-laws.  The 
magistrate  found  that  the  structure  was*  in 
tact  a  comfortable,  good-looking  dwelling- 
house,  which  previously  it  was  not.  He  also 
found,  as  a  fact,  that  the  old  building  was 
partly  pulled  down  to  the  ground  floor,  and  that 
the  buildings  erected  on  the  site  thereof  formed 
a  new  building  intended  for  occupation,  and 
that  they  were  not  adapted  for  personal  occupa- 
tion previously,  and  that  they  were  "a  new 
building"  within  s.  159  of  the  Public  Health 
Act,  lb75.  The  appellant  was  convicted  and 
fined  40*.  and  costs,  and  a  further  sum  of  20*. 
for  each  day  the  work  should  continue  or  remain 
contrary  to  the  provisions  of  the  said  bye-laws  : 
—Held,  that  the  question  whether  the  altera- 
tions constituted  a  "  new  building  "  was  a  ques- 
tion of  fact  for  the  magistrate  to  decide,  and 
that  he  had  decided  as  a  tact  that  they  did  con- 
stitute a  u  new  building,"  and  that  the  penalty 
of  SI.  was  payable  in  addition  to  the  penalty  of 
40*.  a  day.  though  the  information  laid  against 
the  appellant  was  only  for  not  having  given  the 
notices  and  plans  under  the  27th  bye-law.  James 
*.  Wwrill,  61  L.  T.  237  ;  48  J.  P.  725— D.  Hee 
also  Heay  v.  Gateshead  (Mayor),  infra. 

Bye-laws — Validity— Erection  before  Kerb  put 
«.]— By  a.  157  of  the  Public  Health  Act,  1875, 
every  urban  authority  is  empowered  to  make 
bye-laws  "  with  respect  to  the  level,  width  and 
construction  of  new  streets "  : — Held,  that  the 
•fiction  did  not  empower  the  making  of  a  bye- 
law  that  M  no  person  shall  commence  the  erec- 
tion of  a  building  in  a  new  niTeet  unless  and 
until  the  kerb  of  each  footpath  therein  shall 
have  been  pat  in  at  such  level  as  may  be  fixed 
or  approved  by  the  urban  sanitary  authority  " 
Rutland  ▼.  Sunderland  (Mayor),  52  L.  T.  617  ; 
»  W.  R.  164  ;  49  J.  P.  359— D. 

—  detaining  Plans  Deposited.)— It  is  rea- 
sonable for  an  urban  sanitary  authority  to  make 
a  bye-law  and  regulations  enabling  it  to  retain 
the  plans  of  intended  building*  deposited  under 
the  Public  Health  Act,  1875,  although  such  plans 
be  disapproved  of  and  rejected.  Gooding  v. 
&Ung  Local  Board,  1  C.&  E.  359— Mathew,  J. 

Power  to  Order  Bemoval.i — A  local  board 

bye-laws  with  respect  to  new  streets,  by 
of  which  their  approval  was  required  for  the 
faction  of  buildings  ;  and  it  was  provided  that 
if  any  works  were  constructed  "  contrary  to  the 
provisions  herein. contained,'1  the  board  might 


have  such  works  removed,  altered,  or  pulled 
down  : — Held,  that  the  bye- law  did  not  give  the 
board  a  general  power  of  veto  on  the  construc- 
tion of  buildings,  but  only  of  disapproving  and 
ordering  the  removal  of  buildings  which  contra- 
vened specific  regulations  contained  in  the  bye- 
laws.  Robinson  v.  Barton  Local  Board,  8  A  pp. 
Cas.  798 ;  53  L.  J.,  Ch.  226  ;  50  L.  T.  57  ;  32 
W.  R.  249  ;  48  J.  P.  276— H.  L.  (E.) 


Ho    Approval    of    Plans  —  Continuing 


Penalty— Limitation  of  Time  for  Proceedings.] 
— On  the  Uth  December,  1885,  an  information 
was  preferred  against  the  appellant  for  that  he, 
between  the 6th  March,  1885,  and  October,  1885, 
had  commenced  the  execution  of  works,  tho 
plans  of  which  were  not  in  conformity  with  the 
bye-laws,  and  had  erected  such  works  notwith- 
standing the  disapproval  of  the  urban  sanitary 
authority,  and  permitted  the  same  to  continue, 
notwithstanding  written  notice  of  such  contra- 
vention of  the  bye-laws.  By  bye-law  5,  s.  9, 
"If  the  person  intending  to  construct  new 
houses  shall  construct,  or  cause  to  be  constructed, 
any  works,  or  do  any  act,  or  omit  to  do  any  act, 
or  comply  with  any  requirements  of  the  local 
board,  contrary  to  the  provisions  herein  con- 
tained, he  shall  be  liable  for  each  offence  to  a 
penalty  not  exceeding  hi.,  and  he  shall  pay  a 
further  sum  not  exceeding  40*.  for  each  and 
every  day  during  which  such  works  shall  con- 
tinue or  remain  contrary  to  the  said  provisions." 
The  justices  convicted  the  appellant  of  the 
offence,  and  ordered  him  to  pay  the  penalty  of 
5/.  and  costs,  and  also  to  pay  a  further  sum  of 
5*.  per  day  from  the  12th  of  October,  1885,  being 
the  day  on  which  the  respondent  first  served  a 
notice  of  objection,  to  the  11th  December,  1885, 
being  the  day  on  which  the  said  information 
was  laid  : — Held,  that  the  conviction  could  not 
be  sustained,  and  that  the  9th  paragraph  of  the 
5th  bye-law  was  bad,  because  there  was  no 
authority  to  inflict,  by  a  bye-law,  a  continuing 
penalty  for  merely  not  pulling  down  a  building 
actually  erected  and  completed.  Held,  also, 
that  the  said  bye-law  was  ultra  vires,  because, 
under  s.  115  of  the  Public  Health  Ac:,  1848 
(11  &  12  Vict.  c.  63),  a  continuing  penalty  is  to 
run  only  for  each  day  after  written  notice  of 
the  offence  has  been  given  by  the  local  board. 
The  section  does  not  authorise  the  infliction  of  a 
continuing  penalty  "  for  each  day  during  which 
the  works  shall  continue  contrary  to  the  pro- 
visions of  the  bye-laws."  Held,  also,  that  the 
respondents  had  not  taken  proceedings  in  time, 
and  were  barred  by  s.  11  of  Jervis'  Act  (11  &  12 
Vict.  c.  43),  because  the  original  offence  of  com- 
mencing the  work  was  not  shown  to  have  been 
committed  within  six  months  of  the  date  of  the 
information.  The  period  of  limitation  men- 
tioned in  s.  158  of  the  Public  Health  Act,  1875, 
applies  only  to  the  case  of  a  continuing  offence. 
Jieay  v.  Gateshead  (Mayor),  55  L.  T.  92  ;  34 
W.  R.  682  ;  50  J.  P.  805- D.  Sec  also  James  v. 
WyvUl,  supra. 

Open  Space  at  rear  of  Dwelling-house- 
Distance  across  to  opposite  Property.  J  -  The  L. 
Improvement  Commissioners  made  a  bye-law 
that  every  person  erecting  a  new  building  for  a 
dwelling- bouse  should  provide  in  the  rear  an 
open  space  exclusively  belonging  theieto,  to  the 
extent  of  at  least  150  square  feet,  and  should 
cause    the   distance   across   such   open   space 


859 


HEALTH — Powers  and  Jurisdiction  of  Local  Boards. 


860 


between  every  such  building  and  the  opposite 
property  at  the  rear  to  be  at  least  20  feet.  P. 
erected  a  new  building  to  be  used  as  a  dwelling- 
house  ;  in  the  rear  there  was  a  space  exclusively 
belonging  thereto  of  700  square  feet ;  the  dis- 
tance across  such  open  space  to  the  opposite 
houses  was  52  feet,  but  as  P.'s  land  was  bounded 
by  a  public  street,  the  distance  from  the  houses 
of  P.  to  the  edge  of  the  street  was  only  8  feet : — 
Held,  that  on  the  true  construction  of  the  bye- 
law  the  public  street  was  the  opposite  property, 
and  that  P.  had  committed  a  breach  of  the  bye- 
law.  Jones  v.  Parry,  57  L.  T.  492  ;  52  J.  P.  69 
— D. 

Prohibition  of  use  unless  fit  for  Human 


Habitation.] — An  urban  sanitary  authority  made 
the  following  bye-law  under  the  Local  Govern- 
ment Act,  1858  (all  bye-laws  made  under  which 
are  deemed  to  be  bye-laws  under  the  Public 
Health  Act,  1875,  if  not  inconsistent  with  any 
of  the  provisions  of  that  act)  :  "  No  new  house 
shall  be  occupied  until  the  house  drainage  has 
been  made  and  completed,  nor  until  such  house 
has  been  certified  by  the  local  board,  or  their 
officer  authorised  to  give  such  certificate,  after 
examination,  to  be  in  every  respect  fit  for  human 
habitation  in  their  or  his  opinion  : " — Held,  that 
the  bye-law  was  reasonable  and  not  inconsistent 
with  any  of  the  provisions  of  the  Public  Health 
Act,  1875,  and  therefore  valid.  Horsell  v. 
Swindon  Local  Board,  58  L.  T.  732  ;  52  J.  P. 
597— D. 

Deviation   from   Plans  —  Position    of 


Privies.] — B.  was  charged  with  erecting  new 
buildings  not  in  accordance  with  the  plans,  in  so 
far  as  the  tub-closets  were  not  in  the  positions 
shown  on  the  plans.  The  closets  had  been 
erected  from  15  to  27  feet  distant  from  main 
buildings  instead  of  2£  feet  as  shown  on  the 
plans : — Held,  that  the  justices  were  right  in 
holding  that  tub-closets  came  within  the  meaning 
of  "  privies"  in  21  &  22  Vict.  c.  98,  s.  34,  and 
that  it  was  an  offence  against  bye-laws  to  deviate 
from  the  plans.  Burton  v.  Acton,  51  J.  P.  566 
— D. 

4.  SEWERS. 

What  are  —  Watercourse.] — The  sewage  of 
■certain  houses  drained  into  a  sewer,  and,  after 
passing  through  the  sewer,  was  for  a  period  of 
some  years  allowed  to  fall  into  an  open  water- 
course, which,  in  its  turn,  flowed  into  a  brook  : 
— Held,  that,  under  the  circumstances  of  the 
case,  the  open  watercourse  was  a  sewer  within 
the  meaning  of  s.  4  of  the  Public  Health  Act, 
1875.  WJieatcroft  v.  Matlock  Local  Board,  52 
L.  T.  356 — Denman,  J. 

The  word  "sewer"  in  the  Public  Health  Act, 
1875,  should  receive  the  largest  possible  inter- 
pretation, and  a  drain  is  a"  sewer  "  within  the 
meaning  of  s.  13  when  more  than  one  house  has 
been  connected  with  it.  Acton  Local  Board  v. 
Batten,  28  Ch.  D.  283  ;  54  L.  J.,  Ch.  251 ;  52 
L.  T.  17  ;  49  J.  P.  357— Kay,  J. 

Vesting  in  Local  Authority— Made  "for  his 
-own  Profit."] — A  sewer  made  by  the  owner  of 
some  only  of  the  houses  in  a  street  not  yet  a 
highway,  though  made  for  the  purpose  of  drain- 
ing his  own  amongst  other  houses,  is  not  a  sewer 


made  by  a  person  "  for  his  own  profit "  within 
the  meaning  of  the  exception  in  s.  13  of  the 
Public  Health  Act,  1875.    lb. 

A  street  having  been  laid  out  by  the  owners  of 
a  building  estate,  a  sewer  was  made  by  them  for 
the  drainage  of  the  houses  in  the  street.    Sub- 
sequently, in  the  year  1868,  a  local  board  waa 
formed    whose    district    included   such  street 
The  sewer,  which  discharged  into  the  Thames, 
was  sufficient  for  the  purposes  of  the  drainage  of 
the   street,  assuming    that  drainage   into  the 
Thames  could  be  continued.    In  1884  the  local 
board,  having  received  notice  from  the  Thames 
Conservators  to  discontinue  the  discharge  of 
sewage  into  the  Thames,  gave  notice  under  s.  150 
of  the  Public  Health  Act,  1875,  to  thefrontagen 
in  the  street  to  make  a  new  sewer,  and  on  their 
default  themselves  constructed  such  sewer  and 
sought  to  charge  the  expenses  upon  the  front- 
agers : — Held,  that  the  original  sewer  was  not  a 
sewer  made  by  the  owners  for  their  own  profit, 
and  therefore  had  vested  in  the  board  under  the 
Public  Health  Act ;  that  the  board  not  having 
taken  any  steps  to  compel   the  frontagers  to 
sewer  the  street  within  a  reasonable  time  after 
the  sewer  became  vested  in  them,  must  be  taken 
to  have  been  satisfied  with  the  sewer,  and  could 
not  afterwards  proceed  against  the  frontagen 
under  s.  150,  but  were  bound  themselves  to  keep 
the  sewer  in  repair  under  s.  15  of  the  Public 
Health  Act,  1875,  and,  if  it  became  necessary,  to 
enlarge  or  alter  it  under  s.  18  ;  and  that  conse- 
quently the  expenses  of  constructing  the  new 
sewer  were  chargeable  not  on  the  frontagers  hat 
on  the  general  district  rate.    Bonclla  v.  Ttrick* 
enJurni  Local  Board,  20  Q.  B.  D.  63  ;  57  L.  J., 
M.  C.  1  ;  58  L.  T.  299  ;  36  W.  R.  50 ;  52  J.  P. 
356— C.  A. 


Bight  of  Access  to — Compensation.]— The  B. 
improvement  commissioners  in  1843  constructed 
a  sewer  through  certain  lands  belonging  to  a 
railway  company,  and  through  other  lands,  not 
the  property  of  the  commissioners,  which  the 
company  subsequently  acquired  for  the  purpose! 
of  their  railway.    Nothing  was  ever  done  by  the 
commissioners  or  their  successors  to  acquire  any 
rights  with  regard  to  the  sewer  beyond  its  con- 
struction.   Within  twenty  years  from  the  con- 
struction of  the  sewer  the  railway  company  made 
an  embankment  for  their  railway  upon  the  lands 
and  over  the  sewer.    Up  to  1879  no  repairs  bad 
been  necessary  to  the  sewer ;  but  in  that  year  it 
became  necessary  for  the  plaintiffs,  the  successors 
of  the  commissioners,  to  make  an  open  cutting 
through  the  embankment  in  order  to  do  repairs 
to  the  sewers,  which  could  not  be  effected  from 
the  inside.     In  an  action  upon  an  inquisition 
under  the  Lands  Clauses  Consolidation  Act,  1845, 
to  assess  compensation  claimed  by  the  plaintifEs 
from  the  defendants,  in  respect  of  the  injuriooslj 
affecting  of  the  sewer  by  the  embankment:— 
Held,  that  the  plaintiffs  had  no  title  or  interest 
at  law  in  the  sewer,  or  in  the  lands  in  which  it 
was  situate,  sufficient  to  support  the  claim  :— 
Held,  on  appeal,  that  as  a  right  of  access  to  the 
sewer  had  not  been  expressly  given  to  the  im- 
provement commissioners,  but  had  to  be  implied, 
the  right  of  access  which  ought  to  be  implied 
was  not  any  particular  mode  of  access,  but  snch 
only  as  was  reasonably  necessary  for  enabling 
the  repair  of  the  sewer  to  be  done,  and  as  that 
had    not    been    prevented  by  the  defendant's 
embankment,  but  only  rendered  less  easy  snd 


861 


HEALTH — Powers  and  Jurisdiction  of  Local  Boards. 


862 


conrenient,  the  plaintiffs  had  no  right  to  com- 
pensation. Birkenhead  (Mayor)  v.  London  and 
Xortk-WcsUrn,  Railway,  15  Q.  B.  D.  572;  55 
LI.  Q.  B.  48 ;  50  J.  P.  84— C.  A. 

"Works     for     Sewage    purposes."]  —  The 

cleaning,  levelling,  and  cementing  the  bottom 
of  a  pool,  into  which  the  effluent  from  sewage 
works  flows,  is  a  work  for  sewage  purposes  within 
the  meaning  of  s.  32  of  the  Public  Health  Act, 
1875.  Wimbledon  Local  Board  v.  Croydon 
Salary  Authority,  32  Ch.  D.  421  ;  56  L.  J., 
Cb.  139;  55  L.  T.  106— C.  A. 


5.   NUISANCES    AND    OFFENSIVE 
TRADES. 

Chimney  sending  forth  Black  (Ebnoke — Fur- 
aaet  eonstmeted  to  consume  8moke.] — By  the 
7th  mib-s.  of  s.  91  of  the  Public  Health  Act, 
1*75,  "  Any  fireplace  or  furnace  which  does  not, 
» far  as  practicable,  consume  the  smoke  arising 
frum  the  combustible  used  therein,  and  which  is 
used  for  working  engines  by  steam,  or  in  any  mill, 
factory,  dyehouse,  brewery,  bakehouse,  or  gas- 
wwk,  or  in  any  manufacturing  or  trade  process 
whatsoever ;  and  any  chimney  (not  being  the 
chimney  of  a  private  dwelling-house)  sending 
forth  black  smoke  in  such  quantity  as  to  be  a 
nuisance,  shall  be  deemed  to  be    a  nuisance 
liable  to  be  dealt  with  summarily  in  manner 
provided  by  this  act :   provided  that  where  a 
person  is  gammoned  before  any  court  in  respect 
of  a  nuisance  arising  from  a  fireplace  or  furnace 
which  does  not  consume  the  smoke  arising  from 
the  combustible  used  in  such  fireplace  or  fur- 
nace, the  court  shall  hold  that  no  nuisance  is 
created  within  the  meaning  of  this  act,  and 
dismiss  the  complaint  if  it  is  satisfied  that  such 
fireplace  or  furnace  is  constructed  in  such  man- 
ner as  to  consume  as  far  as  practicable,  having 
regard  to  the  nnture   of  the  manufacture  or 
trade,  all  smoke  arising   therefrom,  and   that 
each  fireplace  or  furnace  has   been   carefully 
attended  to  by  the  person  having  the  charge 
thereof    An  information  was  laid  against  the 
proprietor  of  a  brewery,  for  that  black  smoke 
was  from  time  to  time  sent  forth  from  the  chim- 
ney of  his  brewery  in  such  quantities  as  to  be 
a  nuisance,  and  he  was   convicted  and  fined 
thereon : — Held,  on  case  stated,  that  the  proviso 
Applied  only  to  the  first  part  of  the  sub-section, 
and  not  to  the  latter  part,  making  it  an  offence 
to  send  forth  black  smoke  in  such  a  quantity 
at  to  be  a  nuisance,  and  that  the  defendant  was 
act  entitled  to  call  evidence  as  to  the  construc- 
tion of  the  furnace.    Weekes  v.  King,  53  L.  T. 
«  ;  49  J.  P.  709  ;  15  Cox,  0.  C.  723— D. 

laJeas  or  Offensive  Trade — Fish-Frying.] — 
By  the  112th  section  of  the  Public  Health  Act, 
1*75  (38  Jt  39  Vict.  c.  55),  it  is  provided  that 
any  person  who,  after  the  passing  of  this  act, 
establishes  within  the  district  of  an  urban 
authority,  without  their  consent  in  writing,  any 
offensive  trade,  that  is  to  say,  the  trade  of  blood- 
boiler,  or  bone-boiler,  or  fellmonger,  or  soap- 
boiler, or  tallow-melter,  or  tripe-boiler,  or  any 
other  noxious  or  offensive  trade,  business,  or 
■kaQufacture,  shall  be  liable  to  a  penalty,  &c. 
Afnah-frying  business,  which  is  as  a  fact  an 
offensive  business  by  reason  of  effluvia  arising 


therefrom  and  extending  to  a  distance  of  two 
or  three  hundred  yards,  is  not  a  noxious  or 
offensive  business  within  the  meaning  of  the 
section,  which  only  applies  where  a  business  is 
necessarily  noxious  or  offensive.  Braintree 
Local  Board  v.  Boyton,  52  L.  T.  90  ;  48  J.  P. 
582— D. 

Swine  kept  near  Dwelling-houses — Bye-law.] 
A  rural  sanitary  authority,  purporting  to  act 
under  the  powers  of  ss.  44  and  276  of  the  Public 
Heath  Act,  1875,  made  a  bye-law  prohibiting  the 
keeping  of  swine  within  the  distance  of  fifty 
feet  from  any  dwelling-house  within  their  dis- 
trict : — Held,  that  the  bye-law  was  unreasonable, 
and  therefore  bad.  Heap  v.  Burnley  Union,  12 
Q.  B.  D.  617  ;  53  L.  J.,  M.  C.  76  ;  32  VV.  R.  660  ; 
48  J.  P.  359— D. 

An  urban  sanitary  authority,  under  the  powers 
conferred  by  the  Public  Health  (Ireland)  Act, 
1878  (41  &  42  Vict  c.  52),  made  certain  bye- 
laws,  one  of  which  was  as  follows : — No  swine 
shall  be  kept  in  any  yard  within  a  distance  of 
twenty -one  feet  from  a  dwelling-house  or  public 
building  in  which  any  person  may  be,  or  may  be 
intended  to  be,  employed  in  any  manufacture, 
trade,  or  business,  except  with  the  special  per- 
mission of  the  sanitary  authority  : — Held,  that 
the  bye-law  was  valid.  Lutton  v.  Dolwrty,  16 
L.  R.,  Ir.  493— Q.  B.  D. 

Abatement — Jurisdiction  to  Order  Owner  to 
abate,  where  Premises  leased  for  Tears.]  —  A 
local  authority  served  the  owner  of  premises 
with  a  notice,  under  s.  94  of  the  Public  Health 
Act,  1875,  requiring  him  within  seven  days  to 
abate  a  nuisance  arising  from  the  defective  con- 
struction of  a  structural  convenience,  and  for 
that  purpose  to  execute  certain  specified  works. 
Having  failed  to  comply  with  the  notice,  the 
owner  was  summoned  under  s.  95  before  a  court 
of  summary  jurisdiction,  and  on  the  hearing  it 
was  proved  that  the  premises  in  question  were 
occupied  by  a  tenant  to  the  owner  under  a  lease 
for  twenty-one  years  containing  the  usual  cove- 
nants : — Held,  that  the  owner,  even  although  he 
could  not  enter  upon  the  premises  and  execute 
the  works  without  the  tenant's  permission,  had 
"  made  default "  in  complying  with  the  requisi- 
tions of  the  notice  within  the  meaning  of  s.  95, 
and  therefore  that  the  justices  had  jurisdiction 
to  make  an  order  under  s.  96,  requiring  him  to 
abate  the  nuisance.  Parker  v.  Inge,  17  Q.  B.  D. 
584  ;  55  L.  J.,  M.  C.  149  ;  55  L.  T.  300 ;  51  J.  P. 
20-D. 

Order  should  specify  Work  required  to 

be  Done.] — An  order  of  justices  made  under  s. 
96  of  the  Public  Health  Act,  1875,  upon  the 
complaint  of  a  local  authority,  required  the 
owner  of  premises  to  abate  within  a  specified 
time  a  nuisance  arising  from  un trapped  drains, 
"  and  to  execute  such  works  and  do  such  things 
as  may  be  necessary  for  that  purpose,  so  that 
the  same  shall  no  longer  be  a  nuisance  or  in- 
jurious to  health": — Held,  that  this  order  was 
bad,  because  it  did  not  specify  what  works  and 
things  the  owner  should  execute  and  do  for  the 
purpose  of  abating  the  nuisance.  Beg.  v. 
Wheatley,  16  Q.  B.  D.  34 ;  55  L.  J.,  M.  C.  11 ; 
54  L.  T.  680  ;  34  W.  R.  257  ;  50  J.  P.  424— D. 


Power  to  order  Specific  Works  to  be 

done.] — A  sanitary  authority  had  served  a  notice 


i 


863 


HEALTH — Powers  and  Jurisdiction  of  Local  Boards. 


864 


under  8.  94  of  the  Public  Health  Act,  1875,  on 
the  owner  of  premises  to  abate  a  nuisance,  and 
had  ordered  the  owner  "  to  lay  down  a  biz-inch 
glased  stone- ware  drain  pipe,  and  to  connect  it 
with  the  main  sewer  in  front  of  his  house": — 
Held,  that  the  justices  had  jurisdiction  under  s. 
96  to  make  the  order  in  that  form.  Meg.  v. 
Kent  Inhabitants,  65  L.  J.,  M.  C.  9,  n. — D. 

The  respondents,  an  urban  sanitary  authority, 
served,  under  the  provisions  of  s.  94  cf  the 
Public  Health  Act,  1875.  upon  the  appellant, 
who  was  the  owner  of  certain  houses  within  the 
borough  to  which  respectively  were  attached 
privies  and  ashpits  which  were  a  nuisance,  a 
notice  requiring  him  to  abate  the  nuisance, "  and 
for  that  purpose,  to  deodoiise  and  fill  in  the 
privies,  privy  vaults,  and  ashpits,  convert  the 
same  to  proper  pan  water-closets,  and  connect 
them  with  the  main  sewer/1  The  notice  was  not 
complied  with.  An  order  was  theieupon  made 
by  two  justices  under  the  provisions  of  s.  96  of 
the  Public  Health  Act,  in  the  terms  of  the 
notice  : — Held,  upon  a  case  stated,  that  the 
order  was  a  good  order,  for  that  by  s.  96  it  was 
left  absolutely  to  the  justices  to  order  any  works 
or  structural  alterations  which  they  in  their 
discretion  might  think  necessary  for  the  abate- 
ment of  the  nuisance.  Whitaker  v.  Derby 
Urban  Sanitary  Authority,  55  L.  J.,  M.  C.  8  ; 
60  J.  P.  367— D. 

A  privy  openly  discharged  night-soil  and 
offensive  matter  on  the  bank  of  a  river ;  the 
sanitary  authority  served  the  owner  pf  the  pre- 
mises with  a  notice  to  abate  the  nuisance,  and 
for  that  purpose  to  "  remove  the  present  pipes 
and  pan,  level  the  floor  under  the  seat  of  the 
privy,  and  provide  a  galvanized  double-handled 
pail  under  the  seat,  the  cover  of  which  said  seat 
to  be  movable,  so  that  the  premises  should  no 
longer  be  a  nuisance  or  injurious  to  health;*' 
and  the  justices  at  sessions  made*  an  order  in  the 
terms  of  the  notice  : — Held,  that  they  had  juris- 
diction to  make  the  order.  tiavna\rs,  Em  part/:, 
(11  Q.  B.  D.  191),  followed,  and  Whitchurch, 
Ex  parte  (6  Q.  B.  D.  Mo),  distinguished  or  dis- 
sented from.  Meg.  v.  Llewellyn,  1 3  Q.  B.  D.  681  ; 
55  L.  J.,  11.  C.  9,  n.  ;  33  W.  II.  150  ;  49  J.  P.  101 
— D. 


Ditch  on  Boundary  of  two  Districts.] — 


A  ditch  ran  along  a  highway  which  divided  two 
rural  sanitary  districts.  The  ditch  was  situated 
in  N.,  but  a  nuisance  was  caused  in  greater  part 
by  sewage  from  premises  in  W.  The  W.  sanitary 
authority  npplied  to  justices  for  an  order  on  the 
N.  authority  to  cleanse  the  ditch  as  being  in 
their  area  : — Held,  that  the  justices  were  right 
in  ordering  W.  to  cleanse  the  ditch.  Wobvrn 
Union  v.  Aewport  Pagnell  Union,  51  J.  P.  694 
— D. 


Action  for  Injunction — Bight  of  Local 


Authority  to  Sue— Sanction  of  Attorney-General.] 
—The  Public  Health  Act,  1875,  enacts  in  s.  107 
that  any  local  authority  may,  if  in  their  opinion 
summary  proceedings  would  afford  an  inadequate 
remedy, i%  cause  any  proceedings  to  be  taken '' 
against  any  person  in  any  superior  court  of  law 
or  equity  to  enforce  the  abatement  or  prohibi- 
tion of  any  nuisance  under  the  act : — Held,  that 
such  proceedings  mu^t  be  ordinary  proceedings 
known  to  the  law,  and  that  in  the  absence  of 
special  d  air  age  a  local  authority  cannot  sue  in 
respect  of  a  public  nuisance  except  with  the 


sanction  of  the  attorney-general  by  action  in 
the  nature  of  an  information.  Wallasey  Loral 
Board  v.  Qracey,  36  Ch.  D.  593  ;  56  L.  J.,  Ch. 
7H9  ;  57  L.  T.  61  :  35  W.  R.  694  ;  51  J.  P.  740- 
Stirling,  J. 


6.  LODGING  HOUSES. 

What  are.] — A  local  board  made  bye-laws 
requiring  registration,  &c.,  from  the  landlord  of 
a  lodging-house,  and  defined  "  lodging-house  "  to 
mean  "  a  house  or  part  of  a  bouse  which  is  let  in 
lodgings  or  occupied  by  members  of  more  than 
one  family."  B.  let  four  unfurnished  rooms  of 
her  house  to  M.  and  his  family  : — Held,  that  the 
justices  were  wrong  in  holding  that  B.  did  not 
come  within  the  meaning  of  the  definition  as 
landlord  of  a  lodging-house.  Moots  v.  Beavmont, 
61  J.  P.  197— D. 

Resolution  to  Register — Registration.]— The 

respondent,  having  fulfilled  the  necessary  pre- 
liminaries under  s.  78  of  the  Public  Health  Act, 
1875,  applied  to  be  registered  as  the  keeper  of  * 
common  lodging-house  under  s.  76,  and  the  local 
authority  passed  a  resolution  that  his  house 
should  be  registered.  The  clerk  did  not  cam 
out  this  resolution,  and  no  formal  registration  of 
the  respondent  or  his  house  was  made,  and  eight 
months  afterwards  the  local  authority  resolved 
that  the  respondent  should  not  be  registered, 
and  two  months  later  prosecuted  him  for  keeping 
a  common  lodging-house  without  being  regis- 
tered. The  justices  refused  to  convict : — Held, 
upon  a  case  stated,  that,  for  the  purpose  of  the 
act,  the  resolution  of  the  local  authority  consti- 
tuted registration,  and  that  the  justices  were 
right  in  refusing  to  convict  the  respondent 
Coles  v.  Fibbens,  52  L.  T.  368  ;  49  J.  P.  308- D. 

Cancelling  Registration — Kooning  without 
License.] — K.  was  duly  entered  in  the  register 
of  the  B.  urban  authority  as  keeper  of  a  common 
lodging-house.  Two  months  later  the  inspector 
reported  that  it  was  kept  as  a  house  of  bad 
repute,  and  the  health  committee  by  resolution 
withdrew  the  license  and  ordered  K.  to  clear  out 
his  lodgers  in  a  week,  and  on  his  refusal  he  was 
charged  with  keeping  the  house  without  being 
registered  : — Held,  that  the  justices  were  right 
in  dismissing  the  information,  as  there  was  no 
power  to  cancel  the  license  except  for  the 
reasons  set  forth  in  the  statute.  Blake  v.  Kelly, 
52  J.  P.  263—  D. 


7.  IN  OTHER  CASES. 

Carrying  Water-mains — "Surveyor/1  Report 
of.]— Section  54  of  the  Public  Health  Act,  1875, 
provides  that  where  a  local  authority  supply 
water  they  shall  have  the  same  powers  for  carry- 
ing water  mains  as  they  have  for  carrying 
sewers.  Section  16  provides  that  any  local 
authority  may  carry  any  sewer,  after  giving 
reasonable  notice  in  writing  to  the  owner  or 
occupier  (if  on  the  report  of  the  surveyor  it 
appears  necessary),  into,  through,  or  under  any 
lands  within  their  district: — Held,  that  "the 
surveyor"  is  the  person  duly  appointed  sur- 
veyor under  8. 189,  and  no  other,  not  even  an 
engineer  of  the  greatest  experience  whom  the 


866 


HEALTH — Expenses,  Payment  and  Recovery  of. 


866 


load  authority  may  think  fit  to  consult ;  and 
farther,  that  "the  surveyor"  is  the  person  to 
determine  on  the  necessity,  and  therefore  if  he 
exercise  a  bona  fide  judgment  in  the  matter, 
the  court  will  not  interfere.  Lewis  v.  Weston 
Super  Mare  Local  Board,  40  Ch.  D.  55  ;  58  L.  J., 
Ch.  39 ;  59  L.  T.  769  ;  37  W.  B.  121— Stirling,  J. 

Delegation  to  Police  of  Bight  to  Prosecute.  ]— 
A.  local  board  acting  under  an  act  which  em- 
bodied the  provisions  of  s.  259  of  the  Public 
Health  Act,  1875,  passed  a  resolution  that "  in 
pursuance  of  the  power  vested  in  the  board  by 
* 259  of  the  Public  Health  Act,  1875,  the  super- 
intendent and  the  sergeants  of  the  county  police, 
for  the  time  being  acting  within  the  district,  be 
authorised  as  officers  of  the  board  to  institute 
and  prosecute  all  such  proceedings  as  may  be 
necessary  under  the  specified  clauses  of  the  local 
act  In  an  information  preferred  by  the  super- 
intendent of  police  against  the  appellant  for  an 
offence  under  the  act: — Held,  that  the  local 
board  had  no  power  under  s.  259  of  the  Public 
Health  Act,  1876,  to  delegate  the  prosecution  to 
the  police,  who  are  not  officers  of  the  board,  nor 
■nder  their  control.  Kyle  v.  Barber,  58  L.  T. 
*» ;  52  J.  P.  501,  726  ;  16  Cox,  C.  C.  378— D. 

topping  up  Highways— Employment  of  Soli- 
tSter.]— -The  U.  Land  Company  being  desirous 
of  diverting  certain  public  footways  on  their 
estate  in  the  pariah  of  T.,  requested  the  T.  Local 
Board  of  Health  to  assent  to  such  diversion,  and 
to  take  the  necessary  steps  to  have  the  said 
footways  closed.  The  T.  Local  Board  assented, 
and  instructed  their  solicitors  to  take  the  neces- 
sary steps,  and  this  having  been  done,  paid  their 
bill  of  costs,  and  recovered  the  amount  sum- 
■arily  as  "  expenses "  within  the  meaning  of 
a  84  of  the  Act  of  1835  :— Held,  on  a  case  stated, 
that  the  words  of  s.  144  of  the  Public  Health 
Act,  1875,  •*  may  be  done  by  or  to  the  surveyor 
of  the  urban  authority,  or  by  or  to  such  other 
poaon  as  they  may  appoint,"  did  not  empower 
the  local  board  to  employ  a  solicitor  to  ao  the 
ministerial  acta  in  question,  and  that  therefore 
tfe  solicitor's  charges  were  not  "expenses" 
payable  by  the  land  company  under  s.  84  of  the 
Act  of  1835.  United  Land  Company  v.  Tottenham 
bx*l  Beard,  51  L.  T.  364  ;  48  J.  P.  726— D. 

fnmtfag  BUI  in  Parliament]— A  rural 
•nitary  authority  has  no  power  to  charge  the 
ate  with  the  expenses  of  promoting  a  bill  in 
Parliament.  Cleverton  v.  St.  Germain's  Union, 
K  L  J.y  Q.  B.  8a— Stephen,  J. 

A  rural  sanitary  authority,  being  unable  to 
■moire  by  purchase  land  and  water  rights  neces- 
■uy  for  the  purpose  of  procuring  a  water  supply 
or  their  district,  which  it  was  the  duty  of  the 
ttthority  to  do  under  the  Public  Health  Act, 
Bttrncted  their  solicitor  to  promote  a  bill  in 
Parliament  for  the  purpose  of  obtaining  powers 
to  purchase  the  land  and  water  rights  compul- 
**ily  .—Held,  that  the  rural  sanitary  authority 
°*dno  power  to  promote  such  a  bill,  and  that 
|taefore  their  solicitor  could  not  recover  his 
tuts  from  them.    lb. 

lagiaterof  Owners  and  Proxies— Poll.]— The 
town  council  of  a  borough  is  not  bound,  under 
tiie  Public  Health  Act,  1875,  ached.  II.  r.  19,  to 
top  *  register  of  owners  and  proxies  for  the 
purpose  of  taking  a  poll  in  the  borough  with 


respect  to  the  application,  under  35  k  86  Vict, 
c.  91,  of  the  borough  funds  in  opposing  local  and 
personal  bills  in  parliament.  Ward  v.  Sheffield 
(Mayor),  19  Q.  B.  D.  22  ;  66  L.  J.,  Q.  B.  418— 
Cave,  J. 


III.    EXPENSES  —  PAYMENT   AHD 
RECOVEBY    OP. 

Who  liable— Vendor  or  Purohaser.] — Lease- 
hold houses  in  an  urban  district,  abutting  partly 
on  a  private  road,  were  sold  on  an  open  con- 
tract ;  at  the  date  of  the  sale  works  had  been 
done  by  the  local  board  of  the  district  on  the 
road  under  s.  150  of  the  Public  Health  Act,  1875 ; 
the  final  demand  for  payment  of  the  sum  appor- 
tioned in  respect  of  the  premises  was  served 
after  the  purchase  ought  to  have  been  com- 
pleted:— Held,  that  the  apportioned  expenses 
became  a  charge  on  the  premises  at  the  date  of 
completion,  and  as  between  the  vendor  and 
purchaser  were  payable  by  the  vendor.  Bettes* 
worth  and  Richer,  In  re,  37  Ch.  D.  535 ;  67 
L.  J.,  Ch.  749  ;  58  L.  T.  796  ;  36  W.  B.  544 ;  62 
J.  P.  740— North,  J. 

Landlord  or  Tenant] — A  lessee  cove- 
nanted to  pay  the  tithe  or  rent  charges  in  lieu 
of  tithes  and  tax  (if  any),  sewers'  rates,  main 
drainage  rates,  and  all  other  taxes,  rates,  and 
assessments,  and  impositions  and  outgoings 
whatsoever  then  or  thereafter  to  be  charged  or 
imposed  on  or  in  respect  of  the  said  premises  or 
any  part  thereof : — Held,  that  the  lessee  was  not 
liable  to  pay  the  amount  charged  by  the  urban 
authority  for  sewering,  levelling,  and  paving  the 
road  on  which  the  demised  premises  abutted, 
under  a  160  of  the  Public  Health  Act,  1875. 
Hill  v.  Edward,  lC.sE.  481— Mathew,  J. 

"  Owner  " — Agent  for  collection  of  Santa.] 

—By  as.  98  and  99  of  the  St.  Helen's  Improve- 
ment Act,  1869  (32  k  33  Vict,  c.  120),  the  corpo- 
ration of  St.  Helen's  are,  upon  failure  of  the 
owners  of  property  fronting  on  a  new  street  to 
drain,  pave,  &c.,  the  roadway  and  paths  pur- 
suant to  an  order,  empowered  to  do  the  work 
themselves,  and  to  charge  the  expenses  thereby 
incurred  upon  such  owners  in  proportion  to 
their  respective  frontages ;  and  by  the  interpre- 
tation clause,  s.  4,  "  owner  "  is  declared  to  mean 
"the  person  for  the  time  being  receiving  the 
rack-rent  of  the  lands  in  connexion  with  which 
the  said  word  is  used,  whether  on  his  own 
account  or  under  or  by  virtue  of  any  mortgage 
or  charge,  or  as  agent  or  trustee  for  any  other 
person,  .  .  .  and  shall  include  every  successive 
owner  from  time  to  time  of  such  land  for  any 
part  of  the  time  during  which  the  enactment 
wherein  that  term  is  used  operates  in  relation  to 
such  land  "  : — Held,  that  an  "  agent "  employed 
to  collect  the  rents  of  the  property  charged  by 
the  apportionment  is  an  "owner"  within  the 
act,  and  is  liable  to  be  called  upon  to  pay, 
whether  he  has  money  of  his  principal  in  hand 
or  not,  at  any  time  whilst  the  sum  assessed 
upon  the  premises  remains  unpaid.  St.  Helen's 
(Mayor)  v.  Kirkham,  16  Q.  B.  D.  403  ;  34  W.  B. 
440  ;  50  J.  P.  647— Lopes,  J. 

"Successive  Owners" — Mortgagee  in 

Possession— Bight  to  Sue — Concurrent  Beme- 
iiat.] — In  1879  the  owner  of  premises  abutting 

F  P 


867 


HEALTH — Expenses,  Payment  and  Recovery  of. 


868 


on  H.  street  and  E.  street,  Blackburn,  mortgaged 
them  to  the  defendant.  In  1880  the  plaintiffs, 
the  Corporation  of  Blackburn,  paved  H.  street. 
In  1881  the  mortgagor,  in  accordance  with  the 
provisions  of  the  Blackburn  Improvement  Act, 
1870,  executed  a  charge  on  the  premises  in 
favour  of  the  corporation,  for  the  payment  by 
instalments  of  his  apportionment  of  the  expenses 
thereof.  In  1882,  and  prior  to  the  commence- 
ment of  the  operation  of  the  Blackburn  Improve- 
ment Act,  1882,  the  corporation  paved  E.  street, 
and  in  1883  the  mortgagor  further  charged  the 
premises,  in  accordance  with  the  provisions  of 
the  Blackburn  Improvement  Act,  1882,  with  the 
payment  by  instalments  of  the  expenses  thereof. 
The  mortgagor  made  default  in  payment  of  the 
instalments.  On  the  death  of  the  mortgagor  in 
1883  the  defendant  took  possession  of  the  pre- 
mises under  his  mortgage.  In  an  action  by  the 
corporation  against  the  mortgagee  to  recover 
the  unpaid  instalments  under  s.  247  of  the 
Blackburn  Improvement  Act,  1882,  which  en- 
titles the  corporation  to  institute  an  action  at 
law  against  "successive  owners"  of  premises, 
for  the  recovery  of  the  expenses  of  paving  streets 
abutting  thereon  : — Held,  that  the  defendant 
being  mortgagee  in  possession,  was  a  "  successive 
owner  "  within  the  meaning  of  s.  247  ;  and  that 
the  execution  of  a  charge  in  favour  of  the  corpo- 
ration did  not  preclude  them  from  the  remedy 
of  action  at  law  to  recover  the  expenses ;  and 
that  the  Act  of  1882  was  applicable  to  the  re- 
covery of  expenses  incurred  prior  to  the  com- 
mencement of  the  operation  of  that  act.  Black- 
burn Corporation  v.  Micldethwait,  54  L.  T.  539  ; 
50  J.  P.  660^-D. 

Premises  "  fronting,  adjoining,  or  abut- 
ting."]— A.  B.  owned  plots  of  land  and  cottages 
thereon,  separated  from  a  street  by  a  wall  five 
feet  high,  which  belonged  with  the  land  on  which 
it  stood  to  another  person.  There  was  a  public 
footway  which  went  between  the  plots  of  land, 
and  through  an  opening  in  the  wall  into  the 
middle  of  the  street  The  backs  only  of  the 
cottages  fronted  the  street,  and  the  only  way  for 
vehicles  from  the  cottages  to  the  street  was  by 
a  small  roadway,  which,  without  touching  that 
part  of  the  street  which  had  been  paved,  came 
into  a  highway  which  joined  one  end  of  such 
street.  With  the  exception  of  the  public  foot- 
way this  roadway  was  the  only  access  from  the 
cottages  to  the  street : — Held,  that  A.  B.  was 
not  the  owner  of  premises  "  fronting,  adjoining, 
or  abutting  "  on  the  street  within  the  meaning 
of  s.  150  of  the  Public  Health  Act,  1875,  and 
therefore  was  not  liable  to  contribute  to  the 
expenses  of  sewering  and  paving  the  street 
under  that  section.  Lightbound  v.  Bebington 
Local  Board,  16  Q.  B.  D.  577  ;  55  L.  J.,  M.  C. 
94  ;  53  L.  T.  812  ;  34  W.  R.  219  ;  50  J.  P.  600— 
C.A. 

Summary  Proceedings— Eight  to  dispute  lia- 
bility before  Justioes.]— In  proceedings  before 
justices  under  the  Public  Health  Act,  1875  (38 
&  39  Vict.  c.  55),  s.  150,  to  recover  from  an 
owner  of  premises  fronting  a  road  his  proportion 
of  expenses  incurred  by  the  local  authority  in 
sewering,  levelling,  and  paving  it,  the  owner 
may  dispute  his  liability  by  showing  that  the 
road  is  not  a  "  street,1'  or  that  it  is  a  *(  highway 
repairable  by  the  inhabitants  at  large."  Eccles 
v.  Wirral  Sanitary  Authority,  17  Q.  B.  D.  107  ; 


55  L.  J.,  M.  C.  106  ;  34  W.  B.  412  ;  50  J.  P.  596 
— D. 

Apportionment  of  Expenses— When  conclu- 
sive. ] — Where  the  apportionment  of  street  im- 
provement expenses  by  the  surveyor  under 
s.  150  of  the  Public  Health  Act,  1875,  has  not 
been  disputed  by  a  frontager  in  the  manner 
pointed  out  by  b.  257  of  the  act,  such  apportion- 
ment is  conclusive,  and  the  frontager  cannot  set 
up,  as  a  defence  to  proceedings  for  the  recover/ 
of  the  sum  apportioned,  that  he  has  been  charged 
in  respect  of  a  greater  extent  of  frontage  than 
he  possesses.  Midland  Railway  v.  Watton,  17 
Q.  B.  D.  30  ;  55  L.  J.,  M.  C.  99  ;  54  L.  T.  482  ; 
34  W.  R.  524  ;  50  J.  P.  405— C.  A. 

Hotiee  to  Pave— Alteration  in  Work  done- 
Validity  of  Hotiee.]— Under  s.  150  of  the  Public 
Health  Act,  1875  (38  &  39  Vict.  c.  55),  an  urban 
sanitary  authority  gave  notice  to  the  owner  of 
premises  to  pave  part  of  a  street  upon  which  his 
premises  abutted,  specifying  the  materials  and 
mode  and  (inter  alia)  requiring  him  to  lay  down 
concrete.  The  owner  having  failed  to  comply, 
the  sanitary  authority  did  the  work  themselves, 
but  finding  that  the  concrete  would  be  an  un- 
necessary expense,  omitted  it : — Held,  that  the 
omission  to  follow  strictly  the  terms  of  their 
own  notice  did  not  prevent  the  sanitary  autho- 
rity from  recovering  from  the  owner  his  propor- 
tion of  the  expenses  incurred.  Acton  lied 
Board  v.  Leweey,  11  App.  Cas.  93  ;  55  L.  J.,  Q.  B. 
404  ;  54  L.  T.  657  ;  34  W.  R.  746  ;  50  J.  P.  70S- 
H.  L.  (£•)• 

The  S.  urban  sanitary  authority  gave  notice 
to  K.,  an  owner  of  land  adjoining  a  new  street, 
to  sewer  the  road  and  lay  an  18-inch  pipe.  K. 
having  neglected  to  do  so,  the  authority  in 
course  of  carrying  out  the  work,  found  a  12-inch 
pipe  sufficient,  and  used  it,  and  it  saved  expense 
to  K.  on  the  apportionment : — Held,  that  the 
magistrate  was  right  in  holding  that  the  appor- 
tioned expenses  of  the  altered  work  were  re- 
coverable under  s.  150  of  the  Public  Health  Act, 
1876,  the  alteration  being  not  a  material  matter 
nor  invalidating  the  notice.  Kershaw  v.  Sheffield 
(Corporation),  51  J.  P.  759— D. 

Omission  of  Hotiee  to  Frontagers— Chargt 
on  Lands — Waiver  of  Hotiee.] — The  plaintifis 
incurred  expenses  in  paving  a  street  without 
having  served  on  the  defendants,  who  were 
frontagers,  a  notice  under  s.  69  of  the  Public 
Health  Act,  1848  (to  which  s.  150  of  the  Public 
Health  Act,  1875,  now  corresponds),  requiring 
them  to  do  the  work  themselves.  The  plaintiffs 
claimed  in  an  action  a  declaration  that  the 
expenses  were  a  charge  on  the  defendant's  pro- 
perty, under  s.  62  of  the  Local  Government  Act 
1858  (to  which  s.  257  of  the  Public  Health  Act, 
1875,  corresponds).  It  was  proved  that  B.,  a 
predecessor  in  title  of  the  defendants,  had  taken 
from  the  plaintiffs  a  receipt  for  a  payment  in 
respect  of  the  same  expenses : — Held,  that  the 
plaintiffs  were  not  entitled  to  a  declaration, 
inasmuch  as  the  service  of  the  notice  under  a  6$ 
was  a  condition  precedent  to  liability  on  the 
part  of  the  defendants  in  respect  of  the  expenses, 
and  that  the  payment  by  B.  could  not  operate  as  a 
waiver  of  the  omission  to  give  the  notice.  Far* 
worth  Local  Board  v.  Compton,  34  W.  B.  8M— 
C.A. 


869 


HEALTH— Mates. 


870 


load  "  made  good  "  and  afterwards  Paved— 
11  Theretofore."  ]—In  1857  a  local  act  was  passed 
which  incorporated  s.  53  of  the  Towns  Improve- 
ment Clauses  Act,  1847  (10  &  11  Vict.  c.  34).  In 
1874  the  appellants,  in  their  capacity  as  the  cor- 
poration of  P.,  bought  some  land  of  the  respon- 
dents abnttiog  upon  a  country  high  road  within 
the  district  to  which  the  local  act  applied,  and  in 
pomance  of  an  agreement  then  made  with  the 
respondents,  at  their  own  expense  widened  and 
improved  the  road  and  laid  out  a  footpath  along 
the  side,  and  gravelled,  channelled,  and  kerbed 
the  footpath.  In  1879  the  appellants,  in  their 
opacity  as  the  urban  authority,  paved  and 
flagged  the  footpath  and  sought  to  recover  the 
expense  of  so  doing  from  the  respondents  as 
adjoining  owners  under  the  powers  of  8.  53. 
The  jury  found  that  before  the  paving  and 
flagging  in  1879  the  road  was  not  a  street  in  the 
popular  sense  of  the  term,  and  that  the  footpath 
had  been  "made  good"  within  s.  53 :— Held, 
thai  the  respondents  were  not  liable,  upon  the 
ground  that  the  footpath  had  been  "  theretofore 
made  good "  within  the  meaning  of  8.  53,  but 
without  deciding  whether  the  road  was  a 
"street"  within  the  meaning  of  that  section. 
The  word  "  theretofore  "  in  s.  53  refers  to  the 
period  before  the  work  is  done  by  the  commis- 
sioners, not  to  the  period  before  the  passing  of 
the  special  act.  Portsmouth  (Mayor)  v.  Smith, 
10  App.  Cas.  364 ;  54  L.  J.,  Q.  B.  473  ;  53  L.  T. 
394 ;  49  J.  P.  676— H.  L.  (B.). 

liability  whore  Contract  over  £50  not  under 
flaaL] — In  an  action  by  a  local  authority  to 
recover  from  the  defendant  his  proportion  of  the 
cost  of  sewering,  paving,  &c,  a  street  under  the 
powers  of  the  Public  Health  Act,  1875,  s.  150,  it 
appeared  that  part  of  the  work,  to  an  amount 
exceeding  50/.,  had  been  done  by  contractors 
employed  by  the  local  authority,  but  that  no 
written  contract  under  the  common  seal  of  the 
authority  had  been  made  with  them  as  provided 
by  a.  174  : — Held*  that  the  defendant  was  never- 
theless liable.  By  A.  L.  Smith,  J.,  that  the 
objection,  if  valid,  would  have  been  an  objection 
to  the  apportionment,  which  could  only  be  raised 
in  the  time  and  manner  provided  by  s.  257. 
Bmrmemcmth  Commissioners  v.  Watts,  14  Q.  B. 
D.  87 ;  54  L.  J.,  Q.  B.  93  ;  51  L.  T.  823 ;  33  W.  R. 
»0;  49  J.  P.  102— D. 

Limitation  of  Time — Alternative  Eemedy  in 
Conty  Court.] — The  Leeds  Improvement  Act, 
1877,  s.  96,  provided  that  summary  proceedings 
before  justices  for  the  recovery  of  expenses  must 
be  brought  within  one  year.'  Section  109  pro- 
vided that  when  any  person  neglected  to  pay 
any  sum  due  to  the  corporation,  such  sum  might 
be  recovered  in  any  court  of  competent  jurisdic- 
tion for  the  recovery  of  debts  of  the  like  amount. 
Other  remedies  were  given  for  the  recovery  of 
these  soma,  one  by  an  act  of  1842,  by  way  of 
distress,  in  which  there  was  no  limit  of  time, 
and  another  by  an  act  of  1866,  by  way  of  action 
at  law : — Held,  that  the  limitation  of  one  year 
did  not  apply  to  proceedings  by  way  of  action 
of  debt  in  the  county  court.  Tottenham  Loral 
Board  v.  Howell  (1  Ex.  D.  514)  distinguished. 
Leeds  {Mayor)  v.  Robshatc,  51  J.  P.  441— D. 

Inwaeoua  Votiee — Fresh  Apportionment — 
<*arge  on  Premises.] — An  urban  sanitary  autho- 
rity, acting  under  a.  150  of  the  Public  Health 


Act,  1875,  served  the  defendant  and  other  fronta- 
gers of  a  new  street  with  notices  requiring  them 
to  execute  certain  works,  including  a  particular 
work  which  could  not  legally  be  included  in 
such  notices.  The  notices  not  being  complied 
with,  the  urban  authority  did  the  works  and 
apportioned  the  expenses  incurred  by  them  in  so 
doing  on  the  frontagers.  A  summons  to  recover 
from  the  defendant  the  sum  of  650/.,  the  amount 
charged  to  him  under  the  apportionment,  having 
been  dismissed  by  the  magistrates,  the  urban 
authority  made  a  second  apportionment,  deduct- 
ing the  expense  of  the  work  which  had  been 
wrongly  included,  the  amount  charged  to  the 
defendant  therein  being  679Z.  They  then  brought 
an  action  under  s.  257  of  the  Public  Health  Act 
to  establish  a  charge  on  the  defendant's  premises 
for  579Z.,  or  in  the  alternative,  for  660Z.: — Held, 
that  the  urban  authority  had  power  to  make  a 
second  apportionment ;  and  that,  notwithstand- 
ing the  dismissal  of  the  summons,  they  were 
entitled  to  a  charge  on  the  premises  for  6791. 
Manchester  (Mayor)  v.  Hammon,  35  W.  R.  334 
— D.    See  S.  C.  in  C.  A.,  35  W.  R.  691. 

Part  of  Works  executed  on  Street — Part  on 
Land  of  Private  Owners  —  Appeal  to  Local 
Government  Board.] — Upon  the  hearing  of  a 
complaint  preferred  before  a  police  magistrate 
by  the  urban  authority  of  the  district,  acting 
under  s.  150  of  the  Public  Health  Act,  1876,  to 
recover  the  amount  apportioned  upon  a  frontager 
in  resoect  of  expenses  incurred  by  the  urban 
authonty  in  sewering,  &c.,  a  street,  the  frontager 
objected  that  the  plans  referred  to  in  the  notice 
requiring  him  to  execute  the  work,  showed  that 
part  of  the  work  in  respect  of  which,  upon  his 
failure  to  comply  with  the  notice,  the  expenses 
were  incurred,  was  executed  upon  land  belong- 
ing to  private  owners : — Held,  that  as  part  of  the 
work  was  executed  on  a  street,  the  urban  autho- 
rity had  power  to  fix  the  sum  to  be  apportioned, 
and  the  magistrate  had  jurisdiction  to  entertain 
the  complaint,  and  could  only  make  an  order 
for  payment  of  the  apportioned  sum,  and  if  the 
frontager  was  aggrieved  by  what  the  urban 
authority  had  done,  his  only  remedy  was  to 
appeal  to  the  Local  Government  Board  under 
s.  268  of  the  Public  Health  Act,  1876.  Wake  v. 
Sheffield  (Mayor),  or  Reg.  v.  Sheffield  (Re- 
corder),  12  Q.  B.  D.  142  ;  63  L.  J.,  M.  C.  1 ;  60 
L.  T.  76  ;  32  W.  R.  82  ;  48  J.  P.  197— C.  A. 

Whether  payable  by  Owners  or  out  of  District 

Bate.]— See  ante,  coL  860. 


IV.  BATES. 

Property  Liable  — "  Land  used  at  Market 
Gardens  or  Hursery  Grounds."] — By  the  Public 
Health  Act,  1875  (38  &  39  Vict.  c.  65),  s.  211, 
sub-s.  1  (b),  "  the  occupier  of  any  land  used 
as  ...  .  market  gardens  or  nursery  grounds 
....  shall  be  assessed  in  respect  of  the  same 
in  the  proportion  of  one-fourth  part  only  of  the 
net  annual  value  thereof."  The  appellant,  a 
market-gardener  and  nurseryman,  was  the  occu- 
pier of  a  piece  of  land  upon  which  were  built 
sixteen  greenhouses  or  glasshouses,  which  prac- 
tically covered  the  surface  of  the  land :  they 
were  built  on  brick  foundations,  and  were  used 
by  the  appellant  for  the  purpose  of  growing  fruit 
and  vegetables  for  sale  in  the  course  of  his  buii- 

F  F  2 


871 


HEALTH— Bates. 


m 


nese :— Held,  that  the  land  with  the  greenhouses 
upon  it  constituted  a  market  garden  or  nursery 
ground  within  the  meaning  of  the  act,  and  that 
the  appellant  was  liable  to  be  rated  to  the  general 
district  rate  in  the  proportion  of  one-fourth  part 
only  of  the  net  annual  value  of  the  property. 
Purser  v.  Worthing  Local  Board,  18  Q.  B.  D. 
818  ;  56  L.  J.,  M.  C.  78  ;  35  W.  R.  682  ;  51  J.  P. 
596— C.  A. 


"  Public  Charity,"  Home  used  for  Pur- 


of— Exemption.] — By  a  Local  Improve- 
ment Act,  6  Geo.  4,  c.  132,  s.  103,  the  commis- 
sioners of  a  town  were  authorised  to  make 
district  rates  for  defraying  the  expenses  of  the 
Act,  provided  that  none  of  the  rates  or  assess- 
ments which  should  be  made  by  virtue  of  this 
act  should  be  laid  upon  or  in  respect  of  "any 
houses  or  buildings  used  and  occupied  exclusively 
for  the  purposes  of  public  charity  " : — Held,  that 
an  orphanage  founded  and  used  for  the  purpose 
of  boarding,  lodging,  clothing,  and  educating 
the  children  of  deceased  railway  servants,  and 
supported  partly  by  subscriptions  from  railway 
servants,  but  mainly  by  donations  from  the 
public,  was  open  to  such  an  extensive  class  of 
the  community  of  the  kingdom  that  the  pre- 
mises were  used  and  occupied  exclusively  for 
the  purposes  of  "public  charity,"  within  the 
proviso  of  the  act,  and  therefore  exempt  from 
rateability  under  it.  Hall  v.  Derby  Sanitary 
Authority,  16  Q.  B.  D.  163  ;  55  L.  J.,  M.  C.  21 ; 
54  L.  T.  175  ;  60  J.  P.  278— D. 

Borough  Bates— Limitation  of  Amount 

by  Local  Act] — By  the  St.  Helen's  Improve- 
ment Act,  it  is  provided  that  no  borough  rate 
levied  thereunder  shall  exceed  in  any  year  the 
sum  of  1*.  in  the  pound,  provided  that,  with  the 
consent  of  a  majority  of  the  persons  liable  to 
be  rated  thereto,  the  corporation  may  increase 
such  rate  above  the  amount  by  the  act  limited. 
The  act  further  provides  that  no  such  increase 
shall  be  leviable  upon  the  owner  or  occupier  of 
any  coal  mine  in  respect  thereof,  or  upon  any 
person  assessable  in  the  proportion  of  one-fourth 
only  of  any  rate,  other  than  the  highway  rate,  in 
respect  of  his  property  or  of  premises  occupied 
by  nim : — Held,  that  this  was  not  an  exemption 
of  property  from  rateability,  but  a  limit  im- 
posed upon  the  borough  rate  leviable  upon 
colliery,  &cM  property ;  and  that,  though  the 
limit  still  exists  so  far  as  any  rate  leviable  by 
the  corporation  for  borough  purposes  is  concerned, 
s.  227  of  the  Public  Health  Act,  1875,  prevents 
its  applying  to  rates  leviable  by  the  corporation 
for  the  purposes  of  the  act,  and  that  the  cor- 
poration are  unrestricted  in  the  amount  of  any 
rate  leviable  by  them  thereunder.  St.  Helen's 
Corporation  v.  St.  Helen's  Colliery  Company,  48 
J.  P.  39— D. 


Joint  Board— Component 
of  carrying  out  Provisional  Order— Apportion- 
ment.]— A  provisional  order  of  the  Local  Govern- 
ment Board,  confirmed  by  a  local  act,  provided 
that  the  expenses  incurred  by  the  joint  board  for 
the  district  should  be  defrayed  out  of  a  common 
fund,  to  be  contributed  by  the  component  dis- 
tricts in  manner  provided  by  s.  283  of  the  Public 
Health  Act,  1875,  and  that  the  contributions  of 
certain  of  the  component  districts  should  be  con- 
tributed and  raised  as  if  they  were  required 
to  defray  "  special  expenses  "  within  the  mean- 


ing of  the  Public  Health  Act,  1876 :— Held,  on 
a  special  case,  that  the  joint  board  should  appor- 
tion the  contributions  of  the  component  districts 
according  to  the  rateable  values  of  the  propertiei 
in  such  districts,  to  be  ascertained  according  to 
the  valuation  list,  and  that  the  rateable  Yalnei 
of  tithes,  tithe  commutation  rent-charges,  land 
used  as  arable,  meadow  or  pasture  ground  only, 
or  as  woodlands,  market  gardens,  or  nursery 
grounds,  or  covered  with  water,  or  used  as  a 
canal  or  towing  path,  or  as  a  railway,  should  be 
taken  at  the  full  value  appearing  in  the  valua- 
tion list,  and  not  at  one-fourth  thereof.  Darenth 
Main  Valley  Sewerage  Board  v.  Dartfwi 
Union,  19  Q.  B.  D.  270  ;  56  L.  J.f  Q.  B.  616 ;  57 
L.  T.  233  ;  36  W.  R.  43— D. 

Betrospoetive  rate— Balance  of  past  Debt]— 
A  retrospective  rate  is,  as  a  rule,  bad,  whether 
made  to  meet  expenses  incurred  in  constructing 
and  cleaning  sewers,  or  in  the  relief  of  the  poor. 
A  rate  made  in  1885  for  sewerage  work  done 
under  the  Public  Health  Act  of  1872  held  bad. 
Saul  v.  Wtgton  Sanitary  Authority,  56  L.  T. 
438  ;  35  W.  R.  252  ;  51  J.  P.  406— D. 

Jurisdiction  of  Justices — On  Mortgager— 
Mortgagee  in  Possession.] — The  R.  improvement 
commissioners  made  a  rate  in  1876  on  P.  the 
owner,  for  improvement  expenses,  and  he  paid 
part  thereof  and  died,  having,  at  the  date  of  the 
rate,  executed  a  mortgage  to  B.  B.  entered  into 
possession  in  1882,  and  in  1885  the  justices  issued 
a  distress  warrant  against  B.  for  the  unpaid  fate 
made  on  P. : — Held,  that  the  justices  had  no 
power  to  issue  a  distress  warrant  against  B.,  who 
was  not  named  in  the  rate.  Rochdale  Buildi*f 
Society  v.  Rochdale  (Mayor),  61  J.  P.  134— D. 


Sufficient  Cause  for  Bon-Payment]— A 


district  rate,  based  on  a  new  valuation  list  duly 
approved  by  the  assessment  committee,  was 
levied  on  the  property  of  the  appellants  by  the 
respondents  under  the  powers  of  s.  211  of  the 
Public  Health  Act,  1876.  Subsequently  the 
appellants  obtained  from  the  assessment  com* 
mittee  a  reduction  in  the  valuation  ;  but  being 
still  dissatisfied  with  the  amount,  they  gave 
notice  of  appeal  to  quarter  sessions.  Pending 
the  hearing  of  the  appeal  the  respondents  took 
out  a  summons  under  8. 256  of  the  Public  Health 
Act,  1875,  calling  on  the  appellants  to  show 
cause  why  the  rate  should  not  be  paid :— Held, 
that  the  rate  being  based  on  a  valuation  which 
had  been  admitted  by  the  assessment  committee 
to  be  excessive,  there  was  sufficient  cause  for 
non-payment  of  the  rate  within  the  meaning 
of  s.  256.  Sheffield  Waterwnrhs  Company  v. 
Sheffield  (Mayor),  55  L.  J.,  M.  C.  40  ;  54  L.  T. 
179  ;  34  W.  B.  153  ;  60  J.  P.  6— 1>. 

On  an  application  before  justices  for  an  order 
for  payment  of  a  rate  under  s.  265  of  the  Public 
Health  Act,  1875,  the  rate  being  good  on  the  face 
of  it,  and  the  property  in  respect  of  which  the 
occupier  is  rated  being  within  the  district  of  the 
rating  authority,  the  justices*  duty  is  merely 
ministerial,  and  they  have  no  jurisdiction  to 
inquire  into  the  validity  of  the  rate.  Reg-  ▼• 
Hannam,  34  W.  R.  355— C.  A. 

On  an  application  under  s.  266  of  the 
Public  Health  Act,  1875,  to  enforce  a  general 
district  rate,  good  on  the  face  of  it,  the  justices 
may  not  refuse  to  make  an  order  for  payment  of 
the  rate  on  the  ground  that  there  is  a  concurrent 


878 


HEALTH— Arbitration. 


874 


ate  made  for  the  same  purpose.  Sandgate 
Ioecl  Board  v.  Pledge,  14  Q.  B.  D.  730  ;  62  L. 
T.  M6 ;  33  W.  R.  565 ;  49  J.  P.  342— D. 

—  Stating  8peeial  Case.]— A  special  case 
Bay  be  stated  by  justices  under  the  33rd  section 
of  the  Summary  Jurisdiction  Act,  1879,  upon  an 
application  to  enforce  payment  of  a  general 
©strict  rate  under  the  256th  section  of  the 
Public  Health  Act,  1876.    lb. 


Bankruptcy— Preferential  Claim.]— On  12th 
Jul,  1887,  at  the  time  of  filing  his  petition  the 
bukrupt  was  tenant  of  a  house  under  a  lease 
for  twenty-one  years.  The  trustee  in  bankruptcy 
did  not  disclaim,  but  on  the  1st  Feb.,  1887,  he 
•old  his  interest  in  the  lease,  the  bankrupt  re- 
maining in  occupation  as  tenant  under  the  pur- 
chaser. There  was  due  from  the  bankrupt  at 
the  date  of  the  receiving  order,  a  local  board 
ate  made  on  8th  October,  1886,  for  the  half 
Tear  from  the  30th  September,  1886,  to  25th 
Jfarch,  1887,  and  payable  in  advance  : — Held, 
that  the  estate  of  the  bankrupt  was  liable  to 
pay  the  rate  for  the  whole  half-year.  Ystrad- 
fodwf  Local  Board.  Ex  parte,  Thomas,  In  re, 
WL.  J.f  Q.  B.  39 ;  58  L.  T.  113  ;  36  W.  R.  143  ; 
i  M.  B.  &  295— Cave,  J. 


V.    ARBITRATION. 

Appointment  of  Arbitrators  invalid — Their 
Appointment  of  Umpire.]— The  Public  Health 
Act,  1875  (38  &  39  Vict  c.  55),  s.  180,  enacts 
that  "With  respect  to  arbitrations  under  this 
ftet,  the  following  regulations  shall  be  observed : 
(1)  Svery  appointment  of  an  arbitrator  under 
mil  act  when  made  on  behalf  of  the  local 
aiuoixty  shall  be  under  their  common  seal,  and 
oa  behalf  of  any  other  party  under  his  hand . . ." 
u  (2*)  Every  such  appointment  shall  be  delivered 
to  the  arbitrators,  and  shall  be  deemed  a  submis- 
sion to  arbitration  by  the  parties  making  the 
suae."  In  an  arbitration  under  the  act  one 
arbitrator  was  appointed  by  the  local  authority 
■Oder  their  common  seal,  and  another  arbitrator 
vm  appointed  by  the  claimant,  but  not  in  writing 
aader  his  hand.  The  arbitrators  disagreed  and 
appointed  an  umpire  who  made  an  award  in 
favour  of  the  claimant : — Held,  that  the  pro- 
riskm*  of  the  statute  not  having  been  complied 
with,  the  appointment  of  the  arbitrators  and 
consequently  their  appointment  of  the  umpire, 
and  his  award  were  invalid,  and  neither  the 
original  submission  nor  the  appointment  of  the 
umpire  nor  the  award  could  be  made  an  order  of 
court  Qifford  and  Bury  Town  Council,  In  re, 
»  Q.  B.  D.  368  ;  57  L.  J.,  Q.  B.  181 ;  58  L.  T. 
582;  36  W.  B.  468  ;  62  J.  P.  119— D. 

Jiriaiietaan  of  Arbitrator  when  liability  is 
disputed.]-— When  a  claim  for  compensation  is 
Made  against  a  local  authority  lor  damage 
caused  by  the  exercise  of  the  powers  conferred 
mpon  them  by  the  Public  Health  Act,  1875,  the 
arbitrator  has  jurisdiction  to  hold  the  arbitration 
aad  make  his  award  as  to  the  fact  of  damage, 
and  the  amount  of  compensation  under  ss.  179, 
180, 308,  although  the  local  authority  bona  fide 
dispute  their  liability  to  make  compensation  at 
all  under  the  act  Their  proper  course  is  to 
arise  the  question  of  liability  in  their  defence  to 
an  action  upon  the  award.    Brierley  Hill  Local 


Board  v.  Pear  sail,  9  App.  Cas.  595 ;  64  L.  J., 
a  B.  26  ;  51  L.  T.  677  ;  33  W.  B.  56 ;  49  J.  P. 
84— H.  L.  (B.). 

Power  to  enlarge  Time  for  making  Award.] — 
The  court  cannot  enlarge  the  time  for  making 
an  award  under  the  Public  Health  Act,  1875  (38 
&  39  ^Vict.  c.  55),  beyond  the  period  limited  in 
8.  180.  Mackenzie  and  Ascot  Gas  Company, 
In  re,  17  Q.  B.  D.  114  ;  56  L.  J.,  Q.  B.  309  ;  34 
W.  B.  487— D. 

Award  referred  baok  to  Deal  with  Costs.] — An 
arbitrator  or  umpire  appointed  to  determine  a 
dispute  under  ss.  179  and  180  of  the  Public 
Health  Act,  1875,  must  in  his  award  deal  with 
the  costs  of  and  consequent  upon  the  reference, 
which  are  placed  in  his  discretion  by  sub-s. 
13  of  the  latter  section,  and  if  he  fails  to  do 
so  the  court  will  remit  the  award  to  him  for  the 
purpose  of  determining  the  question  of  costs. 
Peaks  v.  Finehlcy  Local  Board,  57  L.  T.  882 
— D. 

Taxation  of  Costs.] — Two  local  authorities, 
whose  districts  were  adjacent,  agreed  to  carry  out 
a  joint  sewerage  scheme  by  an  agreement,  in 
which  it  was  stipulated  that  all  disputes  as  to 
the  matters  comprised  therein  should  be  settled 
by  arbitration  in  the  manner  provided  by  sections 
179  and  180  of  the  Public  Health  Act,  1875.  An 
award  was  made  which  provided  that  one  of  the 
authorities  should  pay  to  the  other  the  costs  of 
the  reference  and  award,  without  stating  the 
amount  of  such  costs.  Upon  motion  for  an  order 
directing  the  taxation  of  the  costs  : — Held,  that  as 
the  submission  to  arbitration  had  been  made  a  rule 
of  court,  the  taxing-master  was  bound  to  tax  the 
costs  upon  the  application  of  the  successful 
party,  and  that  it  was  not  obligatory  to  bring  an 
action  upon  the  award  in  order  to  enable  him  to 
do  so.  Chesterfield  Corporation  and  Brampton 
Local  Board,  In  re,  60  J.  P.  824— D. 

Enforcing  Award.] — An  award  of  an  umpire 
appointed  under  the  180th  section  of  the  Public 
Health  Act,  1875  (38  &  39  Vict.  c.  55),  awarding 
compensation  for  damage  to  land  under  the 
308th  section  of  the  act,  cannot,  although  duly 
made  a  rule  of  court  under  the  180th  section,  be 
enforced  by  motion  in  the  manner  in  which 
awards  are  ordinarily  enforced.  Walker  and 
Beckenham  Local  Board,  In  re,  60  L.  T.  207  ; 
48  J.  P.  264— D. 

When  Compensation  the  appropriate  Bemedy.] 

—See  Sellers  v.  Matlock  Bath  Local  Board, 
post,  col.  878. 


VI.  CONTRACTS  BT  AHD  WITH  LOCAL 

BOARDS. 

1.  IN   GENERAL. 

Amount  exceeding  £50  not  under  Seal — Con- 
firmation under  Seal  before  Completion.] — It  is 
competent  for  an  urban  authority,  honestly  and 
for  the  advantage  of  their  district,  to  confirm 
under  their  seal  a  previous  contract  not  under 
seal  for  an  amount  exceeding  bOl.  before  such 
contract  is  completely  executed,  so  as  to  render 
the  contract  valid  within  s.  174  of  the  Public 
Health  Act,  1875.     Melius  v.  Shirley  Local 


1 


875 


HEALTH — Contract*  by  and  with  Local  Boards. 


876 


Board,  14  Q.  B.  D.  911 ;  64  L.  J.,  Q.  B.  408 ; 
52  L.  T.  644— Cave,  J.    See  S.  G.  in  C.  A.,  infra. 

Amount  uncertain  at  Time  of  Contract] 

— -A  contract  not  under  seal,  made  by  an  urban 
authority,  whereof  the  value  or  amount  in  fact 
exceeds  60Z.,  is  invalid  by  reason  of  s.  174  of  the 
Public  Health  Act,  1876,  notwithstanding  that 
at  the  time  of  entering  into  the  contract  it  was 
uncertain  what  would  be  the  value  or  amount  of 
the  contract  when  executed.  Eaton  v.  Basher 
(7  Q.  B.  D.  529)  distinguished    lb. 

Effect  of,  on  Liability  for  Expenses.] — 

See  Bournemouth  Commissioners  v.  Watts,  ante, 
coL  869. 

Contract  by  Board  binding  Successors — Im- 
provident Bargain — Change  of  Circumstances.] 
—Under  the  Public  Health  Act,  1848,  s.  48,  the 
owner  of  land  adjoining  a  district  by  deed  agreed 
with  the  local  board  to  do  certain  works  and  pay 
102.  a  year,  and  the  board  gave  him  leave  to  drain 
through  their  drain  all  sewage  from  the  property 
and  houses  then  belonging  to  the  landowner,  and 
from  any  houses  thereafter  to  be  erected  on  the 
property.  Many  more  houses  were  afterwards 
erected,  and  the  urban  sanitary  authority  (which 
had  succeeded  the  local  board)  were,  under  a  new 
act  of  parliament,  prevented  from  passing  as 
before  the  sewage  through  the  drain  into  the 
Thames :— Held,  that  the  deed  was  not  ultra 
vires,  and  that  the  board  could  bind  their  suc- 
cessors as  to  the  sewage  of  houses  not  then  in 
existence.  New  Windsor  (Mayor)  v.  Stovell, 
27  Ch.  D.  665  ;  54  L.  J.,  Ch.  113 ;  51  L.  T.  626  ; 
33  W.  B.  223— North,  J. 

Held,  that  though  the  board  were  trustees  for 
the  ratepayers,  they  had  exercised  their  discre- 
tion, and  the  agreement  did  not  appear  at  the 
time  improvident,  and  its  turning  out  badly  for 
them  did  not  affect  it  -.—Held  also,  that  the  law 
being  altered  so  as  to  prevent  the  discharge  of 
sewage  into  the  Thames  was  no  ground  for 
setting  aside  the  deed.    lb. 

Illegality— Contract  with  Local  Authority  by 
Officer  or  Servant.]— S.  193  of  the  Public  Health 
Act,  1875,  provides  that  officers  or  servants  em- 

Eloyed  by  a  local  authority  shall  not  in  anywise 
e  concerned  or  interested  in  any  contract  with 
such  authority  for  any  of  the  purposes  of  the 
Act,  and  that,  if  any  such  officer  or  servant  is  so 
concerned  or  interested,  he  shall  be  incapable  of 
afterwards  holding  or  continuing  in  any  office  or 
employment  under  the  act,  and  shall  forfeit  the 
sum  of  60/. : — Held,  that  the  effect  of  this  section 
is  to  render  such  a  contract  illegal,  and  to  pre- 
vent an  officer  or  servant  of  a  local  authority 
from  suing  on  the  contract.  Melliss  v.  Shirley 
Local  Board,  16  Q.  B.  D.  446  ;  55  L.  J.,  Q.  B. 
143 ;  53  L.  T.  810 ;  34  W.  R.  187 ;  50  J.  P.  214 
— C.A. 

Semble,  that  if,  after  the  making  of  a  contract 
with  a  local  authority,  an  officer  of  the  authority 
became  interested  in  it,  s.  193  would  not  avoid 
the  contract.    lb. 


2.    LIABILITY    OP    OFFICERS    FOR 
PENALTIES. 

"  Interested  in  Bargain  or  Contract"— Demise 
of  Booms  to  Local  Board—  "  Allowance."]— A 


demise  of  rooms  is  a  "bargain  or  contract" 
within  the  meaning  of  8.  193  of  the  Public 
Health  Act,  1875,  and  if  an  officer,  employed  by 
a  local  board  constituted  under  that  statute,  lets 
rooms  to  the  board  at  a  rent  payable  by  it  to 
him,  although  the  rooms  are  used  by  it  in  the 
transaction  of  its  business,  he  becomes  liable  to 
the  penalty  imposed  by  that  section ;  for  the 
rent  payable  by  the  local  board  cannot  be  con* 
siderea  as  an  "  allowance "  to  the  officer  in 
addition  to  his  salary  within  the  meaning  of 
88. 189, 193,  it  being  unconnected  with  the  per- 
formance of  any  services  in  the  course  of  his 
employment  under  the  board.  Burgess  Y.Clark, 
14  Q.  B.  D.  735  ;  33  W.  R.  269  ;  49  J.  P.  388— 
C.  A.    But  see  48  &  49  Vict  c.  53. 

Shareholder  in  Company— Contract  be- 

tween  Company  and  Local  Board.]— An  officer  of 
a  local  board,  who  is  a  shareholder  in  a  company 
having  a  contract  with  the  board,  is,  so  long  as 
the  contract  exists,  "  interested  in  a  bargain  or 
contract "  with  the  board  within  the  meaning  of 
the  Public  Health  Act,  1875,  s.  193,  and  if  the 
contract  is  capable  of  producing  any  profit  to 
the  shareholders  of  the  company,  he  is  liable  to 
the  penalty  imposed  by  that  enactment.  Tsdd 
v.  Robinson,  14  Q.  B.  D.  739  ;  54  L.  J.,  Q.  B.  47; 
62  L.  T.  120  ;  49  J.  P.  278— C.  A.  But  see  48  k 
49  Vict  c.  53. 

Percentage  payable  by  Contractor.}— By 

the  terms  of  contracts  entered  into  with  a  local 
authority  for  the  purpose  of  the  Public  Health 
Act,  1875,  the  surveyor  to  the  local  authority  wi» 
to  receive  from  the  contractors,  in  respect  of  bilk 
of  quantities  to  be  prepared  by  him,  percentage* 
on  the  amounts  he  should  certify  to  be  dne  to 
such  contractors  respectively  by  the  local  autho- 
rity : — Held,  that  in  respect  of  each  contract  the 
surveyor  was  liable  to  a  penalty  as  having  been 
"concerned  or  interested"  therein  within  the 
meaning  of  s.  193  of  the  Public  Health  Act,  1875. 
Whiteley  v.  Barley,  21  Q.  B.  D.  154  ;  67  L.  J~ 
Q.  B.  643  ;  60  L.  T.  86  ;  36  W.  R.  823 ;  52  J.  P. 
69fr— C.  A. 

Allowance  in  Addition  to  Salary.]— A  loctl 
authority  employed  their  surveyor,  apart  from 
his  ordinary  duties,  to  superintend  the  con- 
struction of  certain  drainage  works  as  their 
engineer,  and  agreed  to  remunerate  him  by  ft 
percentage  on  the  outlay  :  —  Held,  that  Hi* 
surveyor  was  liable  to  the  penalty  imposed  by 
s.  193  of  the  Public  Health  Act,  1875.  /*.  See 
Burgess  v.  Clark,  supra. 

Acceptance  of  Pee  under  Colour  of  Ofiw 


—Extra  Work.]— The  defendant,  a  solicitor,  was 
town  clerk  of  Bury  St  Edmunds,  and  on  the  town 
council  becoming  the  local  sanitary  authority 
was  appointed  clerk  to  the  sanitary  authority. 
By  a  resolution  of  the  town  council  dated  the 
6th  May,  1879,  his  salary  was  paid  at  3652.  per 
annum,  including  all  legal  charges,  except  for 
contentious  matters,  travelling  expenses,  and 
expenses  out  of  pocket.  About  1883  large  sewage 
works  were  promoted,  and  subsequently  carried 
out  by  the  town  council  as  the  local  sanitary 
authority,  which  works  were  carried  on  for  three 
years  and  a  quarter.  During  that  time  the  de- 
fendant, as  such  town  clerk  and  officer  of  the 
sanitary  authority,  drew  his  annual  salary  of 
365/.,  but  was  engaged  in  conducting  the  extra 


877 


HEALTH — Actions  and  Proceedings  against  Local  Boards.         878 


legal  work  caused  by  the  carrying  through  of 
the  sewage  scheme,  which  was  opposed  by  some 
members  of  the  town  council  and  of  the  in- 
habitants. In  December,  1887,  on  the  recom- 
mendation of  the  sewage  and  irrigation  com- 
mittee, the  town  council  resolved  that  the 
defendant  be  paid  the  sum  of  500  guineas  in 
addition  to  his  salary  of  365Z.  for  his  services  in 
ponding  mortgages,  contracts,  attending  and 
conducting  an  inquiry  before  the  Local  Govern- 
ment Board  inspector,  and  other  work  as  a 
solicitor,  and  the  defendant  was  paid  the  said 
nun.  The  plaintiff  brought  his  action  to  recover 
the  statutory  penalty  of  50Z.  against  the  defen- 
dant for  having,  under  the  colour  of  his  office,  or 
appointment  as  officer  of  the  urban  sanitary 
authority,  accepted  such  fee  of  5252.  contrary  to 
the  provisions  of  s.  193  of  the  Public  Health  Act, 
1875 : — Held,  that  under  the  circumstances  of 
the  case  the  acceptance  by  the  defendant  of  the 
mm  of  5251.  was  not  an  acceptance  under  the 
colour  of  his  office  or  employment  of  a  fee  or 
reward  other  than  bis  proper  salary,  wages,  or 
allowances,  within  the  meaning  of  s.  193  of  the 
Public  Health  Act,  1875.  Edwards  v.  Salmon, 
59  L.  T.  416— Pollock,  B.  Affirmed  33  S.  J.  630 
-C.A. 


of  Penalties.]— Under  22  Vict.  c.  32 
—which  enables  the  Crown  to  remit  penalties 
imposed  by  statute  on  convicted  offenders — there 
m  no  power  to  remit  the  penalty  to  which  the 
officers  of  local  authorities  are  liable  under  s.  193 
of  the  Public  Health  Act,  1875,  for  being 
interested  in  any  contract  made  with  such  local 
authorities.  Todd  v.  Robinson,  12  Q.  B.  D.  530 ; 
53  L.  J.,  Q.  B.  251 ;  50  L.  T.  298  ;  32  W.  B.  858  ; 
48  J.  P.  694— D.    See  47  &  48  Vict,  c.  74. 


YIL  ACTIO*!  AJTD  PBOCEEDIHG8  AGAINST 
local  B0ABD8. 

Aetum  by  Officer  on  Contract  with  Board— 
Illegality.] — See  Melius  v.  Shirley  Local  Board, 
ante,  coL  875. 

Guardians  of  the  Poor  acting  m  Bural  Sani- 
tary Authority — Limitation  of  Aotions.] — Sec- 
tion 1  of  the  Act  22  &  23  Vict.  c.  49,  enacts 
that  any  debt,  claim,  or  demand  which  may  be 
lawfully  incurred  by  or  become  due  from  the 
guardians  of  any  union  or  parish  shall  be  paid 
within  the  half-year  in  which  the  same  shall 
have  been  incurred  or  become  due,  or  within 
three  months  after  the  expiration  of  such  half- 
Tear,  but  not  afterwards.  By  s.  9  of  the  Public 
Health  Act,  1875,  the  guardians  of  a  rural  union 
■hall  form  the  rural  sanitary  authority  of  that 
district,  and  "  all  statutes,  orders,  and  legal  pro- 
visions applicable  to  any  board  of  guardians 
•hall  apply  to  them  in  their  capacity  of  rural 
antharity  under  this  Act  for  the  purposes  of  this 
Act":— Held,  that  s.  9  of  the  Public  Health  Act, 
1875,  does  not  extend  the  limitation  of  time 
imposed  by  s.  1  of  the  previous  Act  to  debts 
contracted  by  guardians  in  their  capacity  of 
rural  authority,  but  that  that  limitation  still 
remains  applicable  only  to  debts  contracted  by 
gaardiana  aa  such.  Dearie  v.  Petersfield  Union, 
HQ.BLD.447;  67  L.  J.,  Q. B.  640 ;  60L.T.86; 
37  W.  B.  113  ;  53  J.  P.  102— C.  A. 

tsiictment  for  Hon-repair  of  Highway  — 
Mam  Sanitary  Authority.]  —  An  indictment 


will  lie,  under  s.  10  of  the  Highway  and  Loco- 
motives (Amendment)  Act,  1878,  against  an 
urban  sanitary  authority,  acting  as  the  highway 
authority  of  the  district,  for  non-repair  of  a  high- 
way. Reg,  v.  Wakefield  (Mayor),  20  Q.  B.  D. 
810 ;  67  L.  J.,  M.  0.  52  ;  36  V7.  R.  911  ;  52  J.  P. 
422— D. 

An  indictment  against  a  municipal  corporation 
for  non-repair  of  a  highway  alleged  that  the 
highway  was  in  decay,  and  that  the  corporation, 
' '  acting  by  the  council  as  the  sanitary  authority 
for  the  urban  district,"  ought  to  repair  and 
amend  the  same,  &c. ;  but  there  was  no  allega- 
tion to  show  how  the  defendants  were  liable, 
nor  did  the  indictment  conclude  with  the  words 
"  against  the  form  of  the  statute."  At  the  trial 
the  judge  intimated  his  willingness  to  make  any 
amendment  within  his  power,  but  no  amendment 
was  in  fact  made.  A  verdict  having  been  found 
for  the  Crown  : — Held,  that  the  indictment  was 
bad,  but  that,  even  assuming  the  necessary 
amendments  to  be  made,  the  defendants  were 
entitled  to  judgment,  there  being  nothing  in 
the  Public  Health  Act,  1875,  to  make  the  urban 
sanitary  authority  liable  to  indictment  for  non- 
repair, in  the  same  sense  as  that  in  which  the 
parish  or  other  persons  liable  ratione  tenurso 
were  liable.  Reg.  v.  Poole  (Mayor),  19  Q.  B.  D. 
602,  683  ;  56  L.  J.,  M.  C.  131 ;  57  L.  T.  485  ;  36 
W.  B.  239 ;  52  J.  P.  84 ;  16  Cox,  C.  C.  323— D. 

Hotiee  of  Aotion — Aet  "  done  under  the  Pro- 
visions of  this  Aet."]— The  effect  of  the  Public 
Health  Act,  1875,  which  makes  improvement 
commissioners  under  local  acts  urban  sanitary 
authorities,  is  to  reconstitute  them  as  new  bodies 
under  the  Act,  vesting  in  them  as  such  new  bodies 
the  powers  given  by  the  local  acts  as  well  as  those 
given  by  the  Public  Health  Act ;  and  such  com- 
missioners in  subsequently  doing  any  act  in  the 
exercise  of  the  powers  originally  conferred  by 
their  local  acts  are  acting  under  the  Public 
Health  Act,  1875,  and  consequently  are  entitled 
in  respect  of  such  Act  to  any  protection  or  privi- 
leges given  by  that  Act  to  members  of  local 
authorities  acting  under  its  provisions.  Lea  v. 
Facey,  19  Q.  B.  D.  352  ;  56  L.  J.,  Q.  B.  536 ; 
68  L.  T.  82  ;  35  W.  R.  721  ;  51  J.  P.  756— C.  A. 

A  person  who  is  in  fact  disqualified  from 
being  a  member  of  a  local  authority  but  who 
acts  in  the  bona  fide  belief  that  he  is  a  member 
is  entitled  to  notice  of  action  under  s.  264  of 
the  Public  Health  Act,  1875.  lb.  And  see 
next  case. 

Huisance  by  Erecting  Urinal- Compensation 
— Hotiee  of  Action.]— A  local  board,  assuming 
to  act  under  the  authority  of  s.  39  of  the  Public 
Health  Act,  1875  (38  fc  39  Vict,  c  55),  erected  a 
public  urinal  partly  upon  a  highway  and  partly 
upon  a  strip  of  land  belonging  to  the  plaintiff, 
and  so  near  to  other  adjoining  land  of  the 
plaintiff  as  to  be  a  nuisance  to  her  and  her 
tenants,  and  to  depreciate  the  value  of  her 
property  : — Held,  that  the  plaintiff  was  entitled 
to  a  mandatory  injunction  to  restrain  the  board 
from  continuing  the  urinal  upon  her  land  or  so 
near  thereto  as  to  cause  injury  or  annoyance  to 
her  or  her  tenants: — Held  also,  that  it  was 
not  a  matter  in  respect  of  which  the  plaintiffs 
remedy  was  by  compensation  under  s.  308  of 
the  act.  In  such  a  case  notice  of  action  under 
s.  264  is  not  required.    Sellort  v.  Matlock  Bath 


879 


HEIRLOOMS. 


Local  Board,  14  Q.  B.  D.  928 ;  62  L.  T.  762— 
Denman,  J. 

Erection  of  Xerb-Stonee — Access  to  Land — 
Compensation.] — The  plaintiff  owned  land  abut- 
ting upon  the  highway,  upon  which  an  inn  and 
some  stabling  were  erected.  These  stood  back 
from  the  highway,  and  in  front  of  them  was  an 
open  space  (forming  part  of  the  same  land*) 
which  nad  been  left  open  to  and  on  a  level  with 
the  highway  until  the  defendants,  in  exercise  of 
their  powers  under  s.  149  of  the  Public  Health 
Act,  1875  (38  &  89  Vict.  c.  66),  and  for  the  con- 
venience of  the  public,  placed  kerb-stones  and 
a  raised  footpath  at  the  side  of  the  highway, 
leaving  openings  so  that  carriages  could  still  pass 
at  convenient  places  to  and  from  the  plaintiffs 
land  and  premises : — Held,  that  the  plaintiff  was 
not  entitled  to  a  mandatory  injunction  directing 
the  defendants  to  remove  the  kerb-stones,  and 
that  in  the  absence  of  any  unreasonable  conduct 
the  remedy  for  any  injury  caused  by  the  kerb- 
stones would  be  by  compensation  under  s.  808  of 
the  act.    lb. 

Compulsory  Powers  of  Purchase— Omission  to 
take  Lands  specified  in  Hotioe,] — When  a  local 
authority,  in  exercise  of  their  powers,  serve  on 
the  owner  of  land  intended  to  be  taken  by  them 
for  the  purposes  of  the  Public  Health  Act,  1876, 
the  notice  required  by  s.  176  of  that  act,  they 
are  not  bound  to  proceed  with  such  notice. 
Their  omission,  therefore,  to  take  the  lands 
specified  in  such  notice,  gives  the  owner  of  the 
lands  no  right  of  action  against  them,  notwith- 
standing the  confirmation  of  a  provisional  order 
empowering  them  to  take  such  lands.  Burges 
v.  Bristol  Sanitary  Authority,  50  J.  P.  466 — D. 

Contagious  Diseases  (Animals) — Slaughtering 
diseased  Animals  —  Compensation.]  —  By  the 
42nd  section  of  the  Contagious  Diseases  (Ani- 
mals) Act,  1878  (41  &  42  Vict.  c.  74),  it  is 
provided  that  every  local  authority  shall,  from 
time  to  time,  appoint  so  many  inspectors  and 
other  officers  as  they  think  necessary  for  the 
execution  and  enforcement  of  this  act,  and  shall 
assign  to  those  inspectors  and  officers  such  duties 
and  salaries  or  allowances,  and  may  delegate  to 
any  of  them  such  authorities  and  discretion  as 
to  the  local  authority  may  seem  fit,  and  may  at 
any  time  revoke  any  appointment  so  made.  The 
local  authority  failed  to  appoint  an  inspector,  and 
disease  having  broken  out  amongst  the  plaintiff's 
cattle,  some  of  them  died.  The  local  authority 
did  not  slaughter  any  of  the  plaintiff's  cattle,  nor 
did  they  pay  him  any  compensation  : — Held, 
that  the  plaintiff  could  not  maintain  an  action 
for  damages  nor  for  a  peremptory  mandamus. 
Mulcahy  v.  Kilmacthomas  Guardian*,  18  L.  R., 
It.  200— Q.  B.  D. 

Supply  of  Water  unfit  for  Use.] — See  Milne* 
v.  Huddersfield  (Mayor),  post,  WATEB. 

Action  by  Solioitor— Work  done  ultra  vires.] 
— See  CUverton  v.  St.  Germain's  Union,  ante, 
col.  866. 

Action  for  Injunction— Sanotion  of  Attorney- 
General.] — See  Wallasey  Local  Board  Y.Gracey, 
ante,  col.  864. 


HEIRLOOMS. 

Sale  under  Settled  Land  Act,  188*.] -kr 
Settlement. 

Security — Inventory.] — A  tenant  for  life  of 
heirlooms  will  not  be  required  to  give  security 
for  the  heirlooms,  but  only  to  sign  an  inventory, 
unless  there  is  reason  to  suppose  that  the  heir- 
looms will  be  in  danger  in  his  possession.  Tmpk 
v.  Thring,  66  L.  J.,  Ch.  767— North,  J. 


HIGHWAY. 


See  WAY. 


HOTEL. 


See  INNKEEPER. 


HOUSE. 

Inhabited  House  Duty.]— See  Revenue. 


HOUSE    OF    LORDS. 

Appeal  to.]— See  Appeal. 


HUSBAND  AND  WIFE. 

I.  Marriage. 

1.  Validity,  881. 

2.  Proof  and  Effect  of,  882. 

3.  Breach  of  Promise  to  Marry,  888. 

4.  Legitimacy  of  Children,  883. 
B.  Suits  for  Nullity,  884. 

6.  Dissolution— Domicil.— See  INTEIKA- 

tional  Law. 

7.  Bigamous. — See  CRIMINAL  LAW. 

IL  Restitution  of  Conjugal  Rights,  868. 

III.  Judicial  Separation  and  Divorce. 

1.  Cruelty,  890. 

2.  Desertion,  890. 

3.  Bars  to,  892. 

4.  Jurisdiction,  894. 

5.  Procedure  and  Practice,  894. 


881 


HUSBAND    AND    WIFE. 


882 


6.  Intervention  of  Queen'*  Proctor  and 

Others,  897. 

7.  Oests,  899. 

9.  Alimony  and  Maintenance. 

a.  Pendente  lite,  901. 

b.  Permanent  Alimony,  902. 

9.  Custody  of  and  Access  to  Children, 

903. 

10.  Parliamentary  Sills  of  Divorce,  904. 

11.  Order  by  Justices  for  Judicial  Sepa- 

ration, 905. 

12.  Effect  of  Decree,  906. 

13.  Variation  of  Settlements  and  Deeds, 

907. 

IV.  Separation  Deeds  and  Agreements, 

910. 

V.  Husband's   Bights  and   Liabilities, 

913. 

VI.  Contracts   between   Husband  and 

Wife,  915. 

VIL  Gifts  to  Husband  and  Wife,  916. 

VIII.  Wipe's     Property,     Rights     and 

Liabilities. 

1.  Equity  to  a  Settlement,  917. 

2.  Dower,  919. 

3.  Policies  of  Insurance,  919. 

4.  Separate  Estate. 

a.  What  is — Creation  of.  921. 

b.  Liability  of,  925. 

c.  Proceedings  against,  930. 

d.  Bemoving  Restraint  on  Anticipa- 

tion, 932. 
&  Maintenance  by  Husband,  933. 

6.  Other  Property,  936. 

7.  Dealings  with  Property. 

a.  Examination — Fines    and    Reco- 

veries Act,  936. 

b.  In  other  cases,  937. 

IX.  Actions  and   Proceedings   bt  and 

against  Married  Women,  940. 

X.  Marriage  Settlements. 

1.  What  included  in. 

a.  After-acquired  Property,  944. 

b.  In  other  Cases,  951. 
1  Construction. 

a.  In  General.  952. 

b.  Election,  960. 

e.  Forfeiture  Clauses,  961. 

3.  Enforcing  Covenants,  961. 

4.  Rectification  and  Cancellation,  962. 

5.  Variation,  after  Decree  for  Divorce. 

See  III.  13. 

6.  Fraudulent     in      Bankruptcy.  —  See 

Bankruptcy,  XL  3. 

7.  Under  13  Eliz.  c.  4,  and  27  Eliz.  c.  5. 

—Sec  Fraud  and  Misrepresenta- 
tion. 

8.  Of  Infants— Infants'  Settlement  Act. 

— See  Infant. 


L    MABBIAGB. 

1.  VALIDITY. 

fesdsUai  Englishman,  with  Woman  of  Unci- 
**■•»  tribe,  assorting  to  Hative  Custom,]— A 


union  formed  between  a  man  and  a  woman  in  a 
foreign  country,  although  it  may  there  bear  the 
name  of  marriage,  and  the  parties  to  it  may 
there  be  designated  husband  and  wife,  is  not  a 
valid  marriage  according  to  the  law  of  England 
unless  it  be  formed  on  the  same  basis  as  mar- 
riages throughout  Christendom,  and  be  in  its 
essence  "the  voluntary  union  for  life  of  one 
man  and  one  woman  to  the  exclusion  of  all 
others."  Bethell,  In  re,  Bethell  v.  HUdyard, 
38  Ch.  D.  220  ;  57  L.  J.,  Ch.  487  ;  58  L.  T.  674  ; 
36  W.  R.  503— Stirling,  J. 

C.  B.,  whose  domicil  was  English,  in  1878  went 
to  South  Africa,  and  afterwards  resided  at  Maf e- 
king  in  Bechuanaland.  In  1883  he  went  through 
the  ceremony  of  marriage  with  T.,  a  woman  of 
the  Baralong  tribe,  according  to  the  customs  of 
the  tribe,  among  whom  polygamy  is  allowed. 
C.  B.  and  T.  lived  together  as  husband  and  wife. 
He  was  killed  in  the  colony  in  1884,  and  about 
ten  days  after  his  death  T.  gave  birth  to  a  female 
child.  C.  B.,  in  a  document  which  he  wrote  and 
signed  in  1883,  made  some  provision  for  T.  and 
for  a  child  out  of  the  proceeds  of  sale  of  his 
property  in  the  colony.  He  refused  to  be 
married  to  T.  in  a  church  on  the  ground  that  he 
was  a  Baralong.  He  never  mentioned  the 
marriage  to  any  of  his  friends  in  England,  and 
there  was  no  evidence  that  he  ever  introduced  or 
spoke  of  T.  as  his  wife,  but  that  he  called  her 
"  that  girl  of  mine."  He  was  in  receipt  of  about 
£600  a  year,  the  rents  of  estates  in  England, 
devised  to  him  for  life  with  remainder  to  his 
lawful  child  or  children  : — Held,  that  the  union 
of  C.  B.  and  T.  was  not  a  marriage  in  the  Chris- 
tian, but  in  the  Baralong  sense,  and  that  it  was 
not  a  valid  marriage  according  to  the  law  of 
England.    lb. 


2.    PROOF  AND  EFFECT  OF. 

Proof  of.] — Where  a  marriage  is  proved  to  have 
been  solemnized  de  facto  110  years  ago  by  people 
who  intended  that  it  should  be  a  good  marriage, 
and  it  is  done  bona  fide  and  openly,  the  maxim 
omnia  pnesumuntur  rite  esse  acta  applies. 
Lauderdale  Peerage,  The,  10  App.  Cas.  692 — 

H.  L.  rsc). 

A.,  then  ill  of  the  malady  of  which  he  died, 
and  two  days  before  his  death,  was  married  in 
1772  in  New  York  to  B.  by  C,  an  ordained 
clergyman  of  the  Church  of  England,  then  assis- 
tant minister  of  Trinity  Church,  New  York. 
There  was  produced,  inter  alia,  in  support  of  the 
marriage,  from  the  custody  of  the  family  a  cer- 
tificate signed  by  C.  that  he  had  married  A.  and 
B.  according  to  the  rites  of  the  Church  of 
England  as  by  law  established,  and  an  affidavit 
signed  by  the  mayor  of  New  York,  to  the  effect 
that  C.  had  made  oath  of  the  truth  of  the  state- 
ments in  the  certificate ;  a  will  of  date  anterior 
to  the  marriage,  by  which  A.  left  all  his  property 
to  B.  and  the  children  then  born;  copies  of 
letters  showing  that  one  of  the  executors  wrote 
to  his  co-executor  in  England,  a  brother  of  A., 
stating  that  he  was  a  witness  to  the  ceremony  of 
marriage;  that  B.  signed  herself  in  A.'s  sur- 
name; that  the  children  were  recognised  and 
taken  care  of  by  members  of  the  family  as  A/s 
children ;  and  also  War  Office  records  showing 
that  B.  received  a  pension  as  A.'s  widow: — 
Held,  that  there  was  ample  proof  of  a  legal 
marriage.    lb. 


888 


HUSBAND    AND    WIFE. 


884 


Effect  of — Severance  of  Joint  Tenancy— Wife's 
Chose  in  Action.] — Marriage  does  not  operate  as 
a  severance  of  the  wife's  joint  tenancy  in  a  chose 
in  action  (Bank  Btock)  which  has  not  been 
reduced  into  possession  by  the  husband.  BaUlie 
v.  Trehame  (17  Ch.  D.  388)  disapproved.  Butler's 
Trusts,  In  re,  Hughes  v.  Anderson,  38  Ch.  D. 
286  ;  57  L.  J.,  Ch.  643  ;  69  L.  T.  386 ;  36  W.  R. 
817— C.  A. 


3.  BREACH  OF  PROMISE  TO  MARRY. 

Action  against  Personal  Representatives  of 
Promisor— Survival  of  Cause  of  Action— Special 
Damago.] — An  action  for  breach  of  promise  of 
marriage,  where  no  special  damage  is  alleged, 
does  not  survive  against  the  personal  representa- 
tives of  the  promisor.  The  special  damage  which 
would  cause  the  right  of  action  to  survive  must 
be  damage  to  the  property,  and  not  to  the  person, 
of  the  promisee,  and  must  be  within  the  contem- 
plation of  both  parties  at  the  date  of  the  promise, 
and  the  action  can  be  brought  against  the 
executors  for  such  special  damage  only  and  not 
for  general  damages.  Finlay  v.  Chirney,  20 
Q.  B.  D.  494  ;  57  L.  J.,  Q.  B.  247  ;  58  L.  T.  664  ; 
36  W.  R.  534  ;  52  J.  P.  324— C.  A. 

Aotion  against  Infant— Ratification.]  —  The 
plaintiff  and  defendant,  who  were  both  under 
age,  became  engaged  to  be  married  in  April, 
1886.  In  September,  1886,  the  defendant  came 
of  age.  In  October,  1886,  the  plaintiff's  father 
made  an  assignment  of  his  property  to  his 
creditors,  and  immediately  afterwards  informed 
the  defendant  of  the  fact,  and  told  him  if  he 
wished  to  be  released  from  his  engagement  he 
could.  The  defendant  then  refused  to  be 
released,  and  said  he  was  quite  willing  to  marry 
the  plaintiff,  and  asked  her  whether  she  thought 
they  were  old  enough;  to  which  the  plaintiff 
replied  they  had  better  wait  awhile.  The  defen- 
dant subsequently  broke  off  the  engagement,  and 
refused  to  marry  the  plaintiff  :— Held,  that  there 
was  evidence  to  go  to  the  jury  that  there  had 
been  a  new  promise  to  marry  made  by  the  defen- 
dant after  he  came  of  age.  Holmes  v.  Brierley, 
36  W.  R.  795— C.  A.  Reversing  59  L.  T.  70  ;  52 
J.  P.  711— D. 


4.  LEGITIMACY  OF  CHILDREN. 

Evidence  of  Husband— Hon-Aocess.] — W.,  by 

will,  bequeathed  1,500/.  to  trustees  in  trust  for 
C,  the  wife  of  J.,  for  life,  and  after  her  death 
to  divide  the  same  equally  among  the  children 
of  the  marriage.  J.  deserted  C,  who  subsequently 
cohabited  with  M.,  and  during  such  cohabitation 
A.  was  born.  On  the  death  of  C,  A.,  an  infant, 
by  her  next  friend,  applied  for  maintenance  out 
of  the  fund,  whereupon  J.  filed  an  affidavit 
denying  the  legitimacy  of  A.  upon  the  ground, 
among  others,  of  non-access  to  his  wife : — Held, 
that  this  was  not  a  "proceeding  instituted  in 
consequence  of  adultery"  within  the  meaning 
of  s.  3  of  the  Evidence  Further  Amendment 
Act,  1869,  and  therefore,  the  evidence  of  the 
husband  as  to  non-access  was  not  admissible. 
Nottingham  Guardians  v.  Tomhinson  (4  C.  P.  D. 
843)  followed.  Walker,  In  re,  Jackson,  In  re, 
53  L.  T.  660  ;  34  W.  R.  95— Kay,  J. 


Statements  by  Wife  as  to  Paternity.]— Where 
the  legitimacy  of  a  child  born  in  wedlock  is  in 
issue,  previous  statements  by  the  mother  that 
the  child  is  a  bastard  are  admissible  as  evidence 
of  her  conduct,  although  she  could  not  be  allowed 
to  make  such  statements  in  the  witness-box. 
The  Ayles/ord  Peerage,  11  App.  Caa.  1— H.  L. 
(E.). 

Presumption— Duration  of  Pregnancy.]— The 
presumption  in  favour  of  the  legitimacy  of  a 
child  born  in  wedlock  is  not  a  presumptio  juris 
et  de  jure,  hut  may  be  rebutted  by  evidence, 
which  must  be  clear  and  conclusive  and  not 
resting  merely  on  a  balance  of  probabilities. 
Thus  in  a  suit  for  declaration  of  legitimacy  where 
a  child  had  been  born  276  days  after  the  last 
opportunity  of  intercourse  between  the  husband 
and  wife,  and  where  there  was  evidence  in  the 
wife's  conduct  tending  to  show  that  she  regarded 
the  child  as  the  offspring  of  her  paramour,  the 
president  directed  the  jury  that  it  was  for  them 
to  say  whether,  on  the  whole  of  the  evidence 
given  on  behalf  of  those  who  asserted  illegi- 
timacy, the  conviction  had  been  brought  home 
to  their  minds  that  the  husband  was  not  the 
father  of  the  child  ;  and  read  to  them  the  opinion 
of  Lord  Lyndhurst  in  Morris  v.  Daries  (5  CI.  & 
F.  163).  The  jury  found  that  the  child  wis 
illegitimate  : — Held,  that  the  direction  was  right, 
and  that  the  verdict  was  not  against  evidence. 
Bosvile  v.  Attorney- General,  12  P.  D.  177;  56 
L.  J.,  P.  97  ;  67  L.  T.  88  ;  36  W.  R.  79— D. 

Inquiry  as  to — Variation  of  Settlements.]— 
On  a  petition  for  variation  of  settlements  after 
a  decree  of  dissolution  of  marriage,  the  court 
refused  to  order  an  inquiry  into  the  legitimacy 
of  a  child  born  between  the  date  of  the  decree 
nisi  and  decree  absolute.  Pry  or  v.  Pryor,  12  P. 
D.  165  ;  56  L.  J.,  P.  77  ;  57  L.  T.  533  ;  35  W.  R. 
349— Hannen,  P. 

Divorce  from  Lunatic — Suit  to  perpetuate 
Testimony.] — A  lunatic's  wife  was  divorced  for 
adultery,  and  it  was  alleged  that  the  last  child 
born  before  the  divorce  was  illegitimate.  The 
committee  presented  a  petition  for  leave  to 
prosecute  a  suit  to  perpetuate  testimony  as  to 
the  child's  illegitimacy  : — Held,  that  the  proper 
course  was  for  the  court  to  direct  a  settlement  of 
part  of  the  lunatic's  property  on  his  children,  so 
as  to  give  the  legitimate  children  an  interest  in 
the  property  which  would  entitle  them  to  raise 
the  question  of  the  legitimacy  of  the  child  last 
born  and  bring  a  suit  to  perpetuate  the  testimony 
on  the  subject.  Stoer,  In  re,  9  P.  D.  120 ;  51 
L.  T.  141  ;  32  W.  R.  1005— C.  A. 


5.    SUITS    FOR   NULLITY. 

Insanity— Onus  of  Proof.]— The  burden  of 
showing  that  the  respondent  was  insane  at  the 
time  of  the  marriage  lies  upon  the  party  assert- 
ing it,  and  the  court  has  to  determine  whether 
the  respondent  was  capable  of  understanding 
the  nature  of  the  contract,  and  the  duties  and 
responsibilities  which  it  creates,  and  was  free  from 
the  influence  of  morbid  delusions  upon  the  sub- 
ject. Durham  v.  Durham,  10  P.  D.  80— 
Hannen,  P. 

Impotence— Delay— Sincerity.]-- At  the  end  of 


885 


HUSBAND   AND   WIFE. 


886 


•eren  jean'  cohabitation  a  marriage  had  not 
been  consummated  through  the  impotence  of  the 
alleged  husband.  The  alleged  wife  subsequently 
cohabited  with  another  man,  and  upon  the 
alleged  husband  discovering  her  misconduct  she 
instituted  a  suit  for  nullity  of  marriage  against 
him,  and  he  a  suit  for  dissolution  of  marriage 
against  her  : — Held,  that  the  proof  of  impotence 
being  clear,  her  conduct  did  not  show  such  a 
want  of  sincerity  as  to  deprive  her  of  her  right 
to  have  the  marriage  annulled.  When  the  im- 
potence is  undoubted  mere  delay  is  not  sufficient 
to  disentitle  the  injured  party  to  relief.  M. 
(/duly  called  2>.)  v.  D.t  10  P.  D.  75 ;  54  L.  J., 
P.  68 ;  33  W.  R.  657— Hannen,  P. 

In  a  suit  for  nullity  of  marriage  on  the  ground 
of  impotency,  there  may  be  facts  and  circum- 
stances proved,  which  so  plainly  imply  on  the 
part  of  the  complaining  spouse  a  recognition  of 
the  existence  and  validity  of  the  marriage,  as  to 
render  it  most  inequitable,  and  contrary  to  public 
policy,  that  he  or  she  should  be  permitted  to  go  on 
to  challenge  it  with  effect;  but  the  doctrine, 
designated  as  the ' '  doctrine  of  want  of  sincerity  " 
in  an  action  of  this  kind,  has  been  too  much 
extended  in  recent  English  decisions,  and  that 
doctrine,  apart  from  "approbate,"  and  "repro- 
bate," has  never  been  recognised  by  the  law  of 
Scotland.  Q.  v.  M.,  10  App.  Cas.  171 ;  53  L.  T. 
898-H.  L.  (Sc). 

Delay  in  raising  a  suit  of  nullity  on  the  ground 
of  impotency  is  a  material  element  in  the  inves- 
tigation of  a  case  which,  upon  the  facts,  is  doubt- 
ful; but  there  is  no  definite  or  absolute  bar 
arising  from  it    lb. 

Triennial   Cohabitation.] — The    canon 

law  rule  of  triennial  cohabitation  has  not  been 
recognised  in  England  beyond  this  point,  that 
where  a  husband  or  a  wife  seek  a  decree  of 
nullity  propter  impotentiam,  if  there  is  no  more 
evidence  than  that  they  have  for  a  period 
of  three  years  lived  together  in  the  same  house 
and  with  ordinary  opportunities  of  intercourse, 
and  it  is  clearly  proved  that  there  has  been 
no  consummation,  then  if  that  is  the  whole 
itate  of  the  evidence,  inability  on  the  part  of  the 
one  or  of  the  other  will  be  presumed.  On  the 
other  hand,  the  presumption  to  be  drawn  from 
the  fact  of  non-consummation  after  three  years' 
cohabitation  is  capable  of  being  rebutted.  And, 
also,  every  case  need  not  be  fortified  with  the 
presumption  ;  for  although  no  presumption  can 
be  raised  from  the  absence  of  consummation 
within  a  less  period  than  three  years,  yet 
positive  evidence  may  be  given,  from  which  the 
inference  of  inability  may  be  drawn.    lb. 


Of  Petitioner.] — An  impotent  man  cannot 

Maintain  a  nullity  suit  merely  on  the  ground  of 
hia  own  impotency ;  but  if  a  woman  altogether 
repudiates  the  relation  of  wife  and  the  obliga- 
tions of  the  marriage  contract,  the  impotent  man 
may  show  that  there  is  no  verum  matrimonium, 
and  maintain  such  a  suit.  A.  v.  A.  (faUely 
<*Ued  B.)  19  L.  R.,  Ir.  403— Mat. 

Evidence  —  Marriage  Voidable.]  —  A 
was  declared  null  and  void  on  the 
ground  of  impotency,  after  cohabitation  of  little 
move  than  six  months,  on  strong  medical  testi- 
mony. A  marriage  is  not  void  but  voidable  only, 
on  the  ground  of  impotency.    lb. 


Duress— Mental  Prostration — Incapacity  to 
resist  Coercion.] — The  petitioner,  a  young  woman 
of  twenty-two  years  of  age,  entitled  to  a  sum  of 
26,000/.  in  actual  possession  and  a  considerable 
sum  in  reversion,  had  become  engaged  to  the 
respondent,  and  shortly  after  coming  of  age 
was  induced  by  him  to  accept  bills  to  the  amount 
of  3,3252.  The  persons  who  had  discounted  these 
bills  subsequently  issued  writs  against  her,  and 
threatened  to  make  her  a  bankrupt.  The  distress 
caused  by  these  threats  seriously  affected  her 
health,  and  reduced  her  to  a  state  of  bodily 
and  mental  prostration,  in  which  she  was  in- 
capable of  resisting  coercion  and  threats,  and 
being  assured  by  the  respondent  that  the  only 
method  of  evading  bankruptcy  proceedings  and 
exposure  was  to  marry  him,  she  reluctantly 
went  through  a  ceremony  of  marriage  with  him 
at  a  registrar's  office.  In  addition  to  other  threats 
of  ruining  her,  the  respondent  immediately  be- 
fore the  ceremony  threatened  to  shoot  her,  if 
she  showed  that  she  was  not  acting  of  her 
free  will.  The  marriage  was  never  consummated, 
and  the  petitioner  and  the  respondent  separated 
immediately  after  the  ceremony: — Held,  that 
there  was  not  such  a  consent  on  the  part  of  the 
petitioner  as  the  law  requires  for  the  making  of 
a  contract  of  marriage,  and  that  the  ceremony 
before  the  registrar  must  be  declared  null  and 
void.  Scott  v.  Sebright,  12  P.  D.21 ;  56  L.  J.,  P. 
11 ;  57  L.  T.  421  ;  35  W.  B.  258— Butt,  J. 

Agreement  not  to  sue — Consideration — Bar.] 
—  In  a  petition  by  husband  against  wife 
praying  that  the  marriage  celebrated  between 
them  might  be  declared  null  and  void  on  the 
ground  of  her  incapacity,  the  respondent  pleaded 
that  she  and  the  petitioner  after  a  year's  cohabi- 
tation had  agreed  to  live  apart,  and  had  bound 
themselves  not  to  make  any  claim  against  each 
other  either  in  a  court  of  law  or  equity ;  and 
that  if  either  party  should  break  the  agreement 
the  other  should  be  entitled  to  an  injunction  to 
restrain  such  breach.  That  it  was  further 
agreed  that  if  the  respondent  committed  a  breach 
of  the  agreement  the  petitioner  should  be  en- 
titled to  proceed  in  this  court  for  a  declaration 
of  nullity.  Averment  that  there  had  been  no 
breach  of  the  agreement  on  the  part  of  the  re- 
spondent : — Held,  that  the  respondent's  agree- 
ment not  to  sue  was  a  sufficient  consideration 
for  the  husband's  engagement  to  do  the  like,  and 
that  such  an  agreement  although  not  by  deed 
was  therefore  a  bar  to  the  petition  for  declaration 
of  nullity.  Aldridge  v.  Aldridge,  or  A,  v.  M., 
13  P.  D.  210  ;  58  L.  J.,  P.  8 ;  59  L.  T.  896  ;  37 
W.  R.  240— Hannen,  P. 

Interrogatories  to  Party  —  Jurisdiction  of 
Divorce  Division.]  —  In  a  suit  for  nullity  of 
marriage  the  court  has  power  to  order  interro- 
gatories. Button  v.  Smith,  9  P.  D.  67  ;  32  W.  R. 
596— Hannen,  P. 

In  a  suit  for  nullity  of  marriage,  the  court  has 
power  to  give  leave  to  administer  interrogatories 
between  the  parties  to  the  suit ;  for  suits  of  that 
kind  were  formerly  within  the  jurisdiction  of 
the  ecclesiastical  courts,  which  had  power  to 
allow  interrogatories  to  be  administered  between 
the  parties,  and  now  all  the  jurisdiction  of  the 
ecclesiastical  courts  as  to  suits  for  nullity  of 
marriage  (including  matters  of  practice  and 
procedure)  is  vested  in  the  Probate,  Divorce, 
and  Admiralty  Division.    And,  further,  even  if 


887 


HUSBAND   AND    WIFE. 


888 


the  power  to  allow  interrogatories  to  be  ad- 
ministered between  the  parties  did  not  otherwise 
exist,  it  would  be  conferred  upon  the  Probate, 
Divorce,  and  Admiralty  Division  by  the  Supreme 
Court  of  Judicature  Act,  1873 ;  for  at  the  time 
of  passing  that  statute  the  superior  courts  of 
common  law  and  the  Court  of  Chancery  had 
power  to  allow  interrogatories  to  be  administered 
between  the  parties  to  a  suit ;  and  by  s.  16,  all 
the  jurisdiction  of  those  courts,  including  the 
ministerial  powers  and  authorities  incident 
thereto,  was  transferred  to  and  vested  in  the 
High  Court  of  Justice,  and  by  s.  23  the  juris- 
diction transferred  to  the  High  Court  may  (so 
far  as  regards  procedure  and  practice)  be  exer- 
cised in  the  same  manner  as  it  might  have  been 
exercised  by  any  of  the  courts  whose  jurisdiction 
has  been  transferred.  Harvey  v.  Lovekin,  10  P. 
D.  122  ;  64  L.  J.,  P.  1 ;  33  W.  R.  188— C.  A. 

Application  to  whom  made.]— Semble, 


that  inasmuch  as  proceedings  for  divorce  and  for 
other  matrimonial  causes  are  excluded  from  the 
operation  of  the  rules  of  the  Supreme  Court, 
1883,  by  Ord.  LXVIII.  r.  1  (<*),  an  application 
for  leave  to  administer  interrogatories  between 
the  parties  to  a  suit  ought  not  to  be  made  to  a 
registrar  of  the  Divorce  Division ;  but  it  ought 
to  be  made  in  the  first  instance  to  one  of  the 
judges  of  the  court.    lb. 

Gross  Suits  for  Hullity  and  Dissolution— Cross- 
examination.] — The  parties  had  presented  cross 
suits,  one  for  nullity  of  marriage  on  the  ground 
of  the  man's  impotence,  the  other  for  dissolution 
on  the  ground  of  the  woman's  adultery  : — Held, 
in  the  course  of  the  nullity  suit  that  the  woman 
might  be  cross-examined  as  to  her  adultery  with 
the  co-respondent  in  the  dissolution  suit.  M. 
(JaUely  called  Z>.)  v.  2?.,  10  P.  D.  175  ;  34  W.  R. 
48 — Hannen,  P. 

Alimony— Decree  HiaLl— In  a  suit  for  nullity 
alimony  continues  payable  after  the  decree  nisi 
until  the  decree  is  made  absolute.  S.  (falsely 
called  2*.)  v.  B.,  9  P.  D.  80 ;  63  L.  J.,  P.  63 ; 
32  W.  R.  756— Hannen,  P. 

Provision  for  Children  —  Postponement  of 
making  Decree  Absolute.]— A  decree  nisi  was 
made  declaring  a  de  facto  marriage  void,  as  not 
having  been  solemnized  according  to  law. 
Shortly  before  the  expiration  of  the  period  of 
six  months,  a  petition  was  presented  for  a  provi- 
sion for  the  child  of  the  marriage.  On  a  motion 
to  make  the  decree  absolute,  the  court  held  that 
a  provision  for  the  child  ought  to  be  inserted  in 
the  final  decree,  and  refused  to  make  the  decree 
absolute  until  materials  were  furnished  for  de- 
ciding what  provision  ought  to  be  made  : — Held, 
on  appeal,  that  under  23  &  24  Vict.  c.  144,  s.  7, 
there  is  no  absolute  right  to  have  a  decree  made 
absolute  at  the  end  of  the  six  months,  and  that 
although  the  judge  might  have  made  a  provision 
after  the  decree  absolute,  he  had  jurisdiction  to 
suspend  the  making  the  decree  absolute  for  the 
purpose  of  inserting  in  it  the  provision  which  he 
considered  necessary,  and  the  court  would  not 
interfere  with  his  discretion,  there  being  nothing 
to  show  that  he  had  exercised  it  unreasonably. 
The  act  20  &  21  Vict.  c.  85,  s.  35,  enables  the 
court  to  order  a  provision  to  be  made  for  the 
children  of  a  marriage  which  the  court  has 
declared  to  be  void.  Langworthy  v.  Lang  worthy. 


11  P.  D.  86;  55  L.  J.,  P.  33  ;  54  L.  T.  776;  34 
W.  R.  356— C.  A. 

Variation  of  Settlements— Be-transfer  of  Pro- 
perty.]— After  a  decree  declaring  a  marriage 
null,  the  court  upon  a  petition  for  variation  of 
settlements,  made  an  order  that  the  property 
brought  into  settlement  should  be  reoonveyed  to 
the  parties,  in  the  proportion  in  which  they  had 
respectively  contributed  to  the  settled  fond,  sod 
freed  from  all  the  trusts  of  the  settlement  i. 
(falsely  called  JIT.)  v.  JV.  (10  P.  D.  178),  fol- 
lowed.   Leeds  v.  Leeds,  67  L.  T.  373— Butt,  J. 

By  a  settlement  executed  in  contemplation  of 
marriage,  certain  property  belonging  absolutely 
to  the  wife  was  assigned  to  trustees  upon  trust 
for  the  wife  till  the  solemnisation  of  the  mar- 
riage, and  after  the  solemnisation  thereof  to  pay 
the  income  to  the  wife  for  life  for  her  separate 
use,  and  after  her  death  to  pay  the  income,  with 
certain  exceptions,  to  the  husband  for  life,  and 
after  the  death  of  the  husband  and  wife,  in  treat 
for  the  issue  of  the  marriage,  and  in  default  of 
issue  to  such  persons  as  the  wife  should  appoint, 
and  in  default  of  appointment  for  the  next-of- 
kin  of  the  wife.  The  wife  obtained  a  decree 
declaring  the  marriage  null  and  void  on  the 
ground  of  her  husband's  impotence,  and  after- 
wards presented  a  petition  for  variation  of  the 
marriage  settlements.  The  court  made  an  order 
extinguishing  the  husband's  life  interest  under 
the  settlements,  and  afterwards  made  a  farther 
order  directing  the  trustees  to  retransfer  or  other- 
wise  put  under  the  petitioner's  legal  control  all 
the  property  brought  into  settlement,  for  her 
own  use  and  benefit,  free  from  the  trusts  of  the 
settlements.  A.  (falsely  called  2f.)  v.  M.,  10 
P.  D.  178 ;  64  L.  J.,  P.  31 ;  33  W.  R.  »3- 
Butt,  J. 


II.    BBSTITTmOH  OF  COHJTJGAL  BIGHTS, 


Hotiee  or  Demand  prior  to  Citation— Form  of 
Hotiee.] — The  written  demand  for  cohabitation 
and  restitution  of  conjugal  rights  required  to  be 
made  before  commencing  proceedings  upon  the 
party  to  be  cited  need  not  be  made  by  the 
petitioner  himself,  and  therefore  where  it  was 
made  by  the  petitioner's  solicitor  at  the  peti- 
tioner's request,  such  demand  is  sufficient. 
Though  no  hard  and  fast  rule  can  be  laid  down 
as  to  the  form  of  such  demand,  yet,  as  a  general 
rule  the  demand  should  be  conciliatory  in  its 
tenour,  and  therefore  where  there  had  been  no 
previous  friendly  negotiations  on  the  subject, 
a  demand  for  the  restitution  of  conjugal  rights 
couched  in  the  form  of  a  formal  lawyer's  letter, 
is  not  a  compliance  with  the  true  meaning  of 
r.  175  of  the  Rules  in  Divorce  Causes.  Mv, 
Field,  14  P.  D.  26 ;  68  L.  J.,  P.  21  ;  59  L  T. 
880  ;  37  W.  R.  134— C.  A. 

Service  of  Petition.  1— The  court  has  no  power 
to  allow  service  abroad  of  a  petition  for  restitu- 
tion of  conjugal  rights.  Chichester  v.  Chichester, 
10  P.  D.  186  ;  34  W.  R.  66— Hannen,  P. 

Decree  for  Restitution— Sufficient  Obedieaoe-J 
— The  duty  of  the  court  to  issue  an  attachment 
for  non-obedience  of  a  decree  for  restitution  of 
conjugal  rights  is  the  same  since  the  Divorce 
Acts  as  it  was  before.  It  is  not  a  sufficient 
compliance  by  a  husband  with  a  decree  ft* 


889 


HUSBAND    AND    WIFE. 


890 


restitution  of  conjugal  righto  that  he  has  pro- 
Tided  his  wife  with  a  suitable  establishment  and 
mfficient  income.  Wcldon  v.  Weldon,  9  P.  D. 
»2 ;  53  L.  J.,  P.  9 ;  32  W.  R.  231— D.  See,  now, 
47  k  48  Vict,  c  68. 

Disobedience  to  Order  —  Contempt — Attach- 
asat] — A  respondent  being  in  contempt  for 
Boa-obedience  of  an  order  for  restitution  of 
conjugal  rights,  the  petitioner  applied  for  a  writ 
of  attachment  against  him  : — Held,  that  since 
the  passing  of  the  Matrimonial  Causes  Act, 
1884,  the  writ  could  not  be  issued  notwith- 
standing that  the  contempt  existed  prior  to  that 
set :— Held,  also,  that  the  writ  could  not  issue 
for  non-payment  of  costs.  Weldon  v.  Weldon, 
54 L.  JM  P.  60;  62  L.  T.  233;  33  W.  R.  427  ; 
49  J.  P.  517— C.  A.  Affirming  10  P.  D.  72— 
Hannen,  P. 

legloet  to  comply  with  Decree  —  Judicial 
Separation.  1 — Where  a  husband  had  refused  to 
comply  with  a  decree  ordering  him  to  resume 
cohabitation  within  fourteen  days  of  the  service  ; 
thereof,  the  court,  under  the  5th  section  of  the 
Matrimonial  Causes  Act  of  1884,  granted  a 
decree  of  judicial  separation,  although  the  period 
of  two  years  had  not  elapsed.  Harding  v. 
Harding,  11  P.  D.  Ill  ;  55  L.  J.f  P.  59  ;  56  L  T. 
919— Hannen,  P. 

Heet  of  non-complianoe  with  Order— Equiva- 
lsat  to  Desertion.] — See  Bigvoood  v.  Big  wood, 
post,  coL  892. 

Effort  of  Separation  Deed  —  Covenant  not  to 
lie.  ] — A  separation  deed,  executed  by  a  husband 
sod  wife,  containing  a  covenant  by  trustees  for 
the  wife  not  to  sue  her  husband  for  the  restitu- 
tion of  conjugal  rights,  is  a  bar  to  a  suit  by  the 
wife  for  the  restitution  of  conjugal  rights. 
Marshall  v.  Marshall  (5  P.  D.  19),  approved. 
dark  t.  Clark,  10  P.  D.  188  ;  54  L.  J.,  P.  57  ; 
5S  L.  T.  234  ;  33  W.  R.  405  ;  49  J.  P.  516— C.  A. 

The  parties  in  a  suit  for  restitution  of  conjugal 
rights  had  been  living  apart  under  a  deed  of 
sensation  by  which  the  wife  covenanted  not  to 
take  any  proceedings  to  compel  her  husband  to 
cohabit  with  her.  The  husband,  who  had  not 
fulfilled  his  covenant  to  pay  his  wife  2001.  a 
year,  did  not  appear  in  the  suit.  The  court 
notwithstanding  tbe  covenant  in  the  deed, 
panted  the  wife  a  decree  of  restitution.  Tress 
▼.  Trm%  12  P.  D.  128  ;  56  L.  J.,  P.  93 ;  67  L.  T. 
501 ;  35  W.  R.  672  ;  51  J.  P.  504— Hannen.  P. 

Cutody  of  Child  —  Sendee  of  Order— Dis- 
•oeikaee.] — A  husband  obtained  a  decree  for 
restitution  of  conjugal  rights,  which  was  not 
complied  with,  and  the  court  afterwards  made 
sa  order  giving  the  petitioner  the  custody  of  the 
only  child  of  the  marriage.  A  copy  of  the  order 
far  custody  was  left  at  the  house  where  the 
respondent  was  residing,  but  the  respondent  had 
*ot  given  up  the  child  to  the  petitioner.  The 
court,  being  satisfied  that  the  order  as  to  the 
esstody  of  the  child  had  come  to  the  knowledge 
of  the  respondent,  ordered  a  writ  of  sequestra- 
tion to  issue  against  her  for  non-compliance  with 
the  order,  without  a  previous  writ  of  attach- 
ment, and  ordered  the  respondent  to  pay  the 
costsof  the  motion.  AUenv.  Allen,  10  P.  D.  187  ; 
**  L.  J.,  P.  77 ;  33  W.  B.  826— Hannen,  P. 
See,  also,  Hyde  v.  Hyde,  post,  coL  903. 


Misoonduot  of  Wife— Effect  of  Violence  ant 
Threats.] — Violent  and  uncontrollable  temper, 
habitual  intemperance,  violent  conduct  in  the 
presence  of  the  husband's  guests,  assaults  on 
him,  acts  or  threats  of  violence  and  offensive 
language,  and  false  and  scandalous  statements 
against  his  daughters,  by  which  he  was  obliged 
to  remove  them  from  his  house,  acts  of  violence 
towards  his  servants — all  tending  to  affect  his 
health  and  social  position— constitute  a  legal 
defence  to  a  suit  by  a  wife  for  restitution  of 
conjugal  rights.  The  court  accordingly  refused 
to  set  aside  and  amend  the  respondent's  answer 
pleading  them,  as  vague,  irrelevant,  and  raising 
immaterial  issues,  but  ordered  the  respondent  to 
give  particulars  of  the  alleged  violence,  &c. 
Cruelty  may  consist  of  the  aggregate  of  acts 
alleged  in  a  pleading,  and  each  paragraph  need 
not  allege  an  independent  act  of  legal  cruelty, 
sufficient  in  itself  to  warrant  the  relief  sought. 
D'Aroy  v.  D'Arcy,  19  L.  R.,  Ir.  369— Mat. 


ill.    JUDICIAL  SEPARATION  AND  DIVORCE. 

1.  CRUELTY. 

Condonation — Revival.]—  A  wife,  who  bad 
suffered  such  acts  of  cruelty  from  her  husband 
as  would  probably  have  been  sufficient  to  enable 
her  to  have  then  obtained  a  decree  for  judicial 
separation,  returned  to  his  house  and  lived  with 
him  for  five  years,  during  which  time  he  treated 
her  with  continual  unkindness,  though  he  never 
struck  her.  His  wife  was  eventually  so  terrified 
by  his  conduct  that  she  finally  left  her  hus- 
band : — Held,  that  even  if  these  later  acts  did 
not  amount  to  legal  cruelty,  they  did  neverthe- 
less constitute  such  a  revival  of  the  earlier 
cruelty  as  to  warrant  the  court  in  pronouncing 
a  decree  for  judicial  separation.  Mytton  v. 
Mytton,  11  P.  D.  141 ;  67  L.  T.  92 ;  35  W.  R. 
368 ;  50  J.  P.  488— Butt,  J. 


2.  DESERTION. 

What  amounts  to.]— A  husband,  in  1880,  ceased 
to  reside  with  his  wife  on  the  pretence  that  his 
business  compelled  him  to  be  absent,  but  he  sup- 
plied her  with  necessaries  and  corresponded  with 
her  and  visited  her  occasionally,  and  a  child  was 
born  in  February,  1884.  In  January,  1884,  the 
wife  discovered  that  he  had  for  two  years  been 
living  with  another  woman : — Held,  that  his 
conduct  did  not  amount  to  desertion  for  two 
years.  Farmer  v.  Farmer,  9  P.  D.  246  ;  58  L.  J., 
P.  113  ;  33  W.  R.  169— Hannen,  P. 

Semble,  that  desertion  commenced  from  the 
time  when  his  wife  discovered  the  adultery,  and 
that  after  a  lapse  of  two  years  from  that  time 
she  would  be  entitled  to  a  dissolution  of  her 
marriage.    lb. 

At  the  trial  of  a  petition  by  the  wife  for 
divorce  from  her  husband  on  the  ground  of 
adultery  and  desertion,  it  appeared  that  they 
were  married  in  1866,  and  that  after  four  years' 
cohabitation  it  was  agreed  between  them,  on 
the  husband  falling  into  difficulties,  that  a 
house  and  shop  should  be  taken  for  the  wife, 
and  that  she  should  carry  on  business  in  a 
separate  name.  From  this  time  the  parties 
had  never  lived  together,  though  the  husband 


891 


HUSBAND    AND    WIFE. 


892 


occasionally  visited  his  wife,  and  slept  with  her, 
and  he  made  her  an  allowance.  His  visits  were 
always  as  far  as  possible  made  in  secret,  and 
though  his  wife  remonstrated,  he  refused  to 
recommence  open  and  avowed  cohabitation. 
In  1885  the  wife  had  reason  to  suspect  that  her 
husband  was  carrying  on  adulterous  intercourse, 
and  she  never  afterwards  cohabited  with  him. 
In  1888  she  obtained  positive  proof  of  his 
adultery,  and  thereupon  commenced  the  present 
suit: — Held,  that  in  the  circumstances  there 
waB  sufficient  evidence  of  desertion  for  two 
years  without  reasonable  cause  by  the  husband. 
Garcia  v.  Garcia,  13  P.  D.  216  ;  57  L.  J.,  P.  101 ; 
59  L.  T.  524  ;  52  J.  P.  684— Butt,  J. 

Husband  sentenced  to  Penal  Servitude.! 


In  a  wife's  suit  for  dissolution  on  the  ground  of 
adultery  and  desertion,  it  appeared  that  the 
respondent  when  he  left  his  wife  stated  to  her 
that  he  was  going  to  Ireland  for  a  week's  shoot- 
ing, but  in  fact  he  went  to  Australia  to  escape 
arrest  on  a  charge  of  embezzlement.  Up  to  the 
time  of  his  flight  he  had  been  carrying  on  an 
adulterous  intercourse  with  a  woman  with  whom 
he  had  made  arrangements  to  go  away,  and  he 
was  found  living  in  adultery  with  another  woman 
at  Sydney.  Subsequently  he  was  brought  back 
to  this  country  in  custody,  tried,  and  sentenced 
to  ten  years1  penal  servitude :— Held,  that  the 
•circumstances  under  which  the  respondent  left 
his  wife  constituted  desertion,  and  that  the 
•desertion  would  continue  notwithstanding  the 
fact  that  he  was  brought  back  to  .this  country 
in  custody  and  prevented  by  his  imprisonment 
from  returning  to  his  wife.  Drew  v.  Drew,  13 
P.D.  97  ;  57  L.  J.,  P. 64;  58  L.  T.923;  36  W.  R. 
327— Hannen,  P. 

Husband's    want    of     Means — Mutual 


Separation — Correspondence.] — A  husband  and 
wife  agreed  to  separate  owing  to  the  husband's 
inability  to  maintain  his  wife.  They  continued 
to  correspond,  and  numerous  letters  passed  be- 
tween them,  in  some  of  which  the  husband 
taunted  his  wife  with  not  getting  a  divorce,  and 
said  it  was  cruel  of  her  and  her  friends  to 
"fetter  "him.  He  also  made  frequent  requests 
for  pecuniary  assistance.  The  wife  offered  to 
return  to  her  husband,  when  he  informed  her 
in  one  of  his  letters  that  he  was  ill ;  but  he 
wrote  and  refused  her.  The  husband's  letters 
ceased  in  July,  1885.  The  wife  wrote  four  times 
in  answer  to  the  last  letter  from  him,  but 
received  no  reply.  She  subsequently  made  in- 
quiries and  discovered  that,  while  the  corre- 
spondence had  been  going  on  and  since  it 
ceased,  the  respondent  had  been  residing  at 
various  places  and  keeping  up  an  adulterous 
•connexion,  and  that  he  was  living  under  his 
mother's  roof  with  a  woman  who  was  not  his 
wife : — Held,  that  this  conduct  constituted  deser- 
tion, and,  coupled  with  the  adultery,  entitled  the 
wife  to  a  decree  of  divorce.  Smith  v.  Smith,  58 
h.  T.  639— Hannen,  P. 

Decree  for  Restitution  of  Conjugal  Rights 

— Refusal  to  Obey— Adultery  revived.] — In  a 
petition  by  a  wife  for  divorce  on  the  ground  of 
adultery  and  desertion  it  appeared  that  the 
husband  had  failed  to  comply  with  a  decree  for 
restitution  of  conjugal  rights,  and  that  he  had 
also  been  guilty  of  adultery  before  the  date  of 
the   decree: — Held,    that   sufficient    proof    of 


adultery  and  desertion  had  been  given  to  satisfy 
s.  5  of  the  Matrimonial  Causes  Act,  1884,  and 
that  the  wife  was  entitled  to  a  decree  for 
divorce.  Big  wood  v.  Higwood,  13  P.  D.  89; 
57  L.  J.,  P.  80  ;  58  L.  T.  642 ;  36  W.  R.  928- 
Hannen,  P.  See  also  Harding  v.  Harding, 
ante,  cot  889. 

Proof  insufficient  —  Adjournment  —  Supple- 
mental Petition.]— In  a  suit  by  the  wife  for  dis- 
solution of  the  marriage  on  the  ground  of 
adultery  coupled  with  desertion,  the  adultery 
was  proved,  but  the  evidence  of  desertion  fell 
short  of  the  required  period  of  two  yean  by 
several  months.  The  hearing  was  adjourned, 
and  twelve  months  afterwards  the  respondent 
not  having  returned  to  cohabitation,  the  peti- 
tioner filed  a  supplemental  petition  charging 
desertion,  on  proof  of  which  the  court  granted  a 
decree  nisi  Wood  v.  Wood,  13  P.  D.  22;  67 
L.  J.,  P.  48— Hannen,  P. 

Petition  filed  before  Cause  of  Action  com- 
plete.]— Where  the  statutory  period  of  two  years 
necessary  to  found  a  charge  of  desertion  is  not 
complete  at  the  time  when  proceedings  for 
divorce  are  commenced,  such  charge  can  only  be 
pleaded  and  acted  upon  by  being  made  the  sub- 
ject of  a  fresh  petition.  Lapington  v.  Lapixg- 
frm,  14  P.  D.  21  ;  58  L.  J.,  P.  26;  59  L.  T.  608 ;  37 
W.  R.  384  ;  52  J.  P.  727— Butt,  J. 


3,    BARS  TO. 

Condonation  of  Adultery— Scotch  Law.]— By 
the  law  of  Scotland  full  condonation  of  adultery 
(remission  expressly  or  by  implication  in  fall 
knowledge  of  the  acts  forgiven),  followed  by 
cohabitation  as  man  and  wife,  is  a  remisso 
injuria)  absolute  and  unconditional,  and  affords 
an  absolute  bar  to  any  action  of  divorce  founded 
on  the  condoned  acts  of  adultery.  Nor  can 
condonation  of  adultery— cohabitation  follow- 
ing— be  made  conditional  by  any  arrangement 
between  the  spouses.  Although  the  condoned 
adultery  cannot  be  founded  on,  condonation  does 
not  extinguish  the  guilty  acts  entirely,  and  they 
may  be  proved  so  far  as  they  tend  to  throw  light 
upon  charges  of  adultery  posterior  to  the  con- 
donation. The  doctrine  laid  down  in  Durant  r. 
Durant  (1  Hagg.  Ecc.  Rep.  at  p.  761)  not 
approved  without  qualification.  Dent  v.  J%*t 
(4  Sw.  &  Tr.  106),  direction  of  Lord  Pensance  to 
the  jury,  questioned  on  principle,  and  distin- 
guished from  Blandford  v.  Blandford{&  P.  D.19). 
Collins  v.  Collins,  9  App.  Cas.  206  ;  32  W.  B. 
500— H.  L.  (Be). 

A  wife  confessed  to  several  acts  of  adultery 
with  £.  Her  husband  forgave  her  and  resumed 
cohabitation  on  the  alleged  condition  that  she 
should  not  speak  or  hold  any  communication  with 
E.  again.  Subsequently  she  met  E.  by  appoint- 
ment several  times  under  suspicious  circum- 
stances ;  but,  admittedly,  no  act  of  adultery 
could  be  proved.  The  husband  sued  for  a  dis- 
solution of  the  marriage  on  the  ground  that  the 
condoned  adultery  was  revived  by  the  wife's 
subsequent  conduct: — Held,  that  to  obtain  a 
divorce  he  must  prove  adultery  subsequent  to  the 
condonation,  and  no  less.    lb. 

See  Lord  Watson's  opinion,  for  the  terns 
of  a  remission  of  adultery  which  would  not 


HUSBAND   AND    WIFE. 


894 


constitute  plena  condonatio  in  the  law  of  Soot- 
land,   lb. 

Itvival  of  Adultery.] — Per  Lord  Blackburn  : 
— The  doctrine  of  revival  of  adultery  as  a  ground 
on  which  a  divorce  has  been  granted  is  to  be 
Wrongly  objected  to  as  varying  the  status  of 
married  persons.  On  principle,  a  reconciliation 
being  entered  into  with  full  knowledge  of  the 
•nilt  and  with  free  and  deliberate  intention  to 
forgive  it,  where  that  reconciliation  is  followed 
by  living  together  as  man  and  wife,  the  status 
of  the  couple  ought  to  be  the  same  and  not 
more  precarious  than  if  there  was  a  new  marriage. 
II. 

Per  Lord  Blackburn  : — Assuming  it  to  be  now 
established  English  law  that  any  matrimonial 
offence,  though  forgiven,  may  be  revived  by  any 
other  matrimonial  offence  of  which  the  court* 
tike  cognizance,  it  is  very  modern  law,  and  not 
*o  obviously  just  and  expedient  that  this  House 
ought  to  infer  that  it  either  was  or  ought  to  have 
been  introduced  into  the  law  of  Scotland.  lb. 
Su  Bigwood  v.  Big  wood,  supra. 

Itvival  of  Cruelty.] — See  Mytton  v.  Mytton, 
ante,  col.  890. 

Adultery  of  Petitioner  —  Condonation  —  Dis- 
cretionary Bar.] — In  a  Buit  by  the  husband  for 
divorce  on  the  ground  of  his  wife's  adultery  with 
the  co-respondent,  the  jury  found  that  the  wife 
and  the  co-respondent  had  committed  adultery, 
and  assessed  the  damages  at  3002.  The  wife  in 
her  answer  made  a  counter-charge  of  adultery 
committed  by  her  husband,  in  the  house  in  which 
he  resided  with  his  wife,  with  a  domestic  servant 
in  their  employment  five  years  before.  The 
husband  admitted  the  charge,  but  pleaded  and 
proved  that  his  wife  had  condoned  the  offence 
and  continued  to  live  with  him : — Held,  that 
under  the  circumstances  the  husband's  adultery 
unentitled  him  to  a  decree,  and  his  petition 
being  accordingly  dismissed,  that  he  was  not 
entitled  to  the  damages.  Storey  v.  Storey,  12  P.  D. 
196;  57  L.  J.,  P.  15;  57  L.  T.  536  ;  36  W.  B. 
1» ;  51  J.  P.  680— Hannen,  P. 

In  a  husband's  suit  for  dissolution,  the  wife's 
adultery  was  proved,  and  the  husband  confessed 
to  an  act  of  adultery  in  the  year  1874,  which  he 
alleged  had  been  committed  under  the  influence 
of  hquor,  and  which  had  been  condoned  by  the 
wife : — Held,  that  the  petition  must  be  dismissed. 
Orswoenor  v.  Qrowenor,  34  W.  B.  140— Butt,  J. 

Husband  found  guilty  of  Cruelty— Bight 

«f  wife  to  Belial] — A  judicial  separation  can 
only  be  granted  where  the  petitioner  comes  to 
the  court  with  a  pure  character,  and  is  free  from 
all  matrimonial  misconduct.  Accordingly,  where 
a  husband  and  wife  had  both  been  found  guilty 
of  adultery,  and  the  husband  had  also  been 
found  guilty  of  cruelty : — Held,  that  the  Court 
hid  no  jurisdiction  to  make  a  decree  of  judicial 
reparation  on  the  ground  of  such  cruelty,  how- 
ever aggravated  its  character  might  be.  Drum- 
*ml  v.  Drummond  (30  L.  J.,  P.  177)  approved. 
Otway  t.  Otxoay,  13  P.  D.  141 ;  67  L.  J.,  P.  81  ; 
59  L.  T.  153— C.  A. 

A  husband  obtained  a  decree  nisi  by  reason  of 
bis  wife's  adultery,  but  the  decree  was  rescinded, 
and  bis  petition  dismissed  by  reason  of  his  cruelty 
and  adultery.  The  parties  lived  together  again, 
and  he  committed  other  acts  of  cruelty,  and  was 


also  guilty  of  rape,  when  the  wife  filed  a  petition 
for  dissolution  of  the  marriage.  The  court  under 
the  circumstances  granted  the  wife  a  decree 
nisi.  Collins  v.  Collins,  9  P.  D.  231 ;  53  L.  J.,  P. 
116  ;  33  W.  B.  170— Butt,  J. 

Conduct  conducing  to  Adultery—* Delay.] — In 
a  suit  by  the  husband  for  divorce  on  the  ground 
of  adultery,  which  was  not  defended,  the  husband 
admitted  that  on  his  wife  becoming  addicted  to 
habits  of  intoxication  he  left  her,  after  eleven 
years  of  cohabitation,  broke  up  his  home  and 
sold  his  furniture  with  the  intention  of  getting 
rid  of  her.  He  made  her  no  allowance  and 
never  saw  her  until  eight  years  after  the  separa- 
tion, when  he  met  her  by  accident.  Five  years 
after  that  meeting  he  filed  the  petition.  The 
adultery  was  proved : — Held,  that  the  conduct 
of  the  husband  disentitled  him  to  a  divorce,  and 
that  the  petition  must  be  dismissed.  Heyes  v. 
Heyes,  36  W.  B.  627— D.  Affirming,  13  P.  D. 
11 ;  57  L.  J.,  P.  22 ;  57  L.  T.  815  ;  51  J.  P.  775 
—Butt,  J. 

The  parties  to  a  marriage  separated  by  mutual 
consent  after  a  few  days'  cohabitation,  and  lived 
apart  for  sixteen  years.  The  petitioner  allowed 
his  wife  a  small  sum  monthly,  but  never  saw  her. 
Subsequently  he  ascertained  that  she  was  living 
in  adultery,  and  instituted  a  suit  for  dissolution  ; 
but  the  court  held  that  he  had  been  guilty  of 
conduct  conducing  to  the  adultery,  and  dismissed 
the  petition.  Hawkins  v.  Hawkins,  10  P.  D.  177 ; 
54  L.  J.,  P.  94  ;  34  W.  B.  47— Hannen,  P, 

Separation  Deed— Ho  Covenant  not  to  Sue.] — 
See  Moore  v.  Moore,  post,  col.  910. 


4.    JUBISDICTION, 

Of  English    Courts.]—  See  International 
Law,  III. 


5.    PBOCEDUBB  AND  PBACTICK. 

Affidavit  verifying  Petition— Petitioner  ab- 
sent.]— The  court  will  not  allow  the  affidavit 
verifying  a  petition  for  divorce  to  be  sworn  by 
another  person  when  the  petitioner  is  absent 
from  the  country  of  his  own  free  will.  Bruee, 
Em  parte  (6  P.  D.  16),  distinguished.  Tartt, 
Ex  parte,  34  W.  B.  368— Butt,  J. 

Seourity  for  Costs — Attachment.] — The  pro- 
visions of  the  Debtors  Act,  1869,  do  not  apply 
to  a  case  where  a  party  has  been  ordered  to  find 
security  for  costs,  and  disobedience  of  the  order 
is  a  contempt  of  court  to  be  enforced  by  attach- 
ment. Lynch  v.  Lynch,  10  P.  D.  183  ;  54  L.  J., 
P.  93  ;  34  W.  B.  47— Hannen,  P. 

Cruelty — General  Charge  —  Particulars.]  — 
Evidence  of  an  act  of  actual  violence  is  not 
admissible  where  only  a  general  allegation  of 
cruelty  has  been  made  in  a  petition.  Where 
evidence  was  offered  that  the  husband  had  struck 
his  wife  a  blow,  and  no  such  specific  charge  had 
been  made  in  the  petition,  the  court  allowed  the 
hearing  to  be  adjourned  in  order  that  particulars 
might  be  furnished.  Brook  v.  Brook,  12  P.  D. 
19  ;  66  L.  J.,  P.  108 ;  57  L.  T.  425  ;  35  W.  B.  351 
—Butt,  J. 


1 


895 


HUSBAND   AND    WIFE. 


896 


Proof  of  Identity  of  Co-respondent —Unde- 
fended Action.] — In  undefended  divorce  actions 
the  co-respondent  must  at  the  trial  be  proved  to 
be  the  person  served  with  the  citation,  unless  an 
order  has  been  obtained  for  leave  to  proceed 
without  making  a  co-respondent.  Duff  v.  Duff, 
58  L.  T.  389  ;  52  J.  P.  232— Butt,  J. 

Damages  against  a  Co-respondent — Principle 
of  Assessment.] — In  assessing  damages  against 
a  co-respondent  the  jury  is  not  to  seek  to  punish 
him,  but  is  only  to  give  compensation  for  the 
loss  which  the  husband  has  sustained,  and  is  to 
consider  whether  this  loss  has  been  caused  by 
the  action  of  the  co-respondent.  In  a  case 
where  the  wife  has  not  been  seduced  away  from 
the  husband  by  the  co-respondent,  the  jury  must 
take  into  consideration  the  conduct  of  the  hus- 
band and  the  protection  or  assistance  which  he 
may  have  afforded  to  her  after  the  separation. 
The  means  of  the  co-respondent  are  not  in  any 
way  to  be  considered  as  a  measure  of  damages. 
Keyee  v.  Keyse,  11  P.  D.  100  ;  55  L.  J.,  P.  54  ; 
34  V.  B.  791— Hannen,  P. 

Condonation.]  —  Condonation    of    the 


wife's  adultery  is  no  answer  to  the  husband's 
claim  for  damages  against  the  co-respondent. 
Norru  v.  NorrU  (4  Sw.  &  Tr.  237)  distinguished. 
Pomero  v.  Pomero,  10  P.  D.  174  ;  64  L.  J.,  P.  93  ; 
34  W.  B.  124— Butt,  J. 

Where  Petition  dismissed.]— See  Storey 


v.  Storey,  ante,  col.  893. 

Order  to  pay  into  Court — Attachment.] 

-A  co-respondent  disobeyed  the  order  of  the 
court  to  pay  into  the  registry  the  damages  which 
had  been  found  against  him,  and  as  there  was  no 
one  to  institute  proceedings  against  him  under 
the  Debtors  Act,  1869,  the  court  ordered  the 
damages  to  be  paid  to  the  petitioner,  he  under- 
taking to  pay  them  into  court.  Oyte  v.  Qyte, 
10  P.  D.  185 ;  34  W.  B.  47— Hannen,  P.  See 
next  case. 


Beceiving  Order—11  Judgment  Creditor  " 


—  Order  for  Payment  to  Husband.]  —  In  a 
divorce  suit  by  a  husband  a  decree  for  dissolu- 
tion of  the  marriage  was  made  whereby  F.,  the 
co-respondent,  was  ordered  to  pay  into  court  the 
amount  of  damages  assessed  by  the  jury.  A 
further  order  was  made  that  F.  should  pay  the 
money  to  the  husband  for  the  purposes  of  settle- 
ment upon  the  children  of  the  marriage.  F. 
failed  to  pay,  whereupon  the  husband  applied  to 
the  judge  in  bankruptcy  for  a  committal  order 
under  s.  5  of  the  Debtors  Act,  1869.  F.  had 
means  sufficient  to  pay  part  only  of  the  money. 
The  judge,  acting  under  s.  103,  sub-s.  5,  of  the 
Bankruptcy  Act,  1883,  made  a  receiving  order 
in  lieu  of  an  order  for  committal : — Held,  that 
the  judge  had  no  jurisdiction  to  make  the  order, 
inasmuch  as  the  husband,  being  a  mere  receiver 
or  collector  for  the  court  of  money  not  to  be 
applied  for  his  own  benefit,  was  not  a  "  judgment 
creditor"  within  the  meaning  of  s.  103,  sub-s.  5, 
of  the  Bankruptcy  Act,  1883  ;  but  that  an  order 
should  be  made  against  F.,  under  s.  5  of  the 
Debtors  Act,  1869,  for  payment  of  the  money 
by  instalments.  Fryer,  Ex  parte,  Fryer,  In  re, 
17  Q.  B.  D.  718  ;  55  L.  J.,  Q.  B.  478  ;  55  L.  T. 
276  ;  34  W.  B.  766  ;  3  M.  B.  B.  231— C.  A. 

Execution  of  Deed  by  Person  nominated  by 


the  Court.]  —  The  jurisdiction  given  by  the 
Judicature  Act,  1884,  s.  14,  where  any  person 
neglects  or  refuses  to  comply  with  an  order 
directing  him  to  execute  any  instrument,  to 
order  the  execution  of  the  instrument  by  some 
person,  nominated  by  the  court  to  do  so,  may  be 
exercised  by  the  Probate  Division  of  the  High 
Court  of  Justice ;  and  the  order  may  be  made 
upon  a  motion  for  attachment  for  non-com- 
pliance without  formal  service  of  a  fresh  notice 
of  motion,  provided  the  person  to  be  affected  by 
the  order  has  by  himself  or  his  solicitor  received 
notice  that  the  application  to  the  court  will 
be  made  in  the  alternative  form.  Howarthv. 
Howarth,  11  P.  D.  95  ;  55  L.  J.,  P.  49 ;  55  L.T. 
303  ;  34  W.  B.  633— C.  A.  Affirming  50  J.  P.  37ft 
— Hannen,  P. 

Attachment— Substituted  Service.]— In  the 
Probate  Division  when  personal  service  of  notice 
of  motion  to  attach  for  non-compliance  with  an 
order  cannot  be  effected,  and  the  original  order 
has  been  duly  served,  substituted  service  by 
analogy  to  the  practice  in  the  other  divisions  of 
the  High  Court,  is  sufficient.    lb. 


Contempt  of  Court— Publication  of  Ad- 


vertisements.]— A  co-respondent  in  a  suit  for 
divorce,  immediately  after  the  service  of  the 
citation,  caused  advertisements  to  be  published 
denying  the  charges  made  in  the  petition,  and 
offering  a  reward  for  information  which  would 
lead  to  the  discovery  and  conviction  of  the 
authors  of  them : — Held,  that  these  advertise- 
ments constituted  a  contempt  of  court.  Broi- 
ribb  v.  Brodribb,  11  P.  D.  66 ;  56  L.  J.,  P.  47 ; 
56  L.  T.  672 ;  34  W.  B.  680 ;  60  J.  P.  407- 
Hannen,  P. 

In  a  suit  for  divorce  on  the  wife's  petition  on 
the  grounds  of  adultery  and  cruelty,  the  hus- 
band caused  to  be  printed  and  published  about 
the  district  in  which  the  wife  and  her  family 
resided  a  notice  purporting  to  be  signed  by  him, 
offering  a  reward  of  252.  for  evidence  of  the 
confinement  of  a  young  married  woman  of  a 
female  child,  "probably  not  registered":— 
Held,  that  this  was  a  contempt  of  court  as 
tending  to  prejudice  the  petitioner,  and  dis- 
crediting her  in  the  assertion  of  her  rights,  and 
a  writ  of  attachment  ordered  to  issue.  Pool  t. 
Sacheverel  (1  P.  Wm.  675)  questioned.  Butler 
v.  Butler,  13  P.  D.  73  ;  57  L.  J.,  P.  42  ;  58  L.T. 
663— Butt,  J. 

Decree  Nisi— Rescission— Reconciliation.]— 
In  a  suit  for  dissolution  at  the  instance  of  the 
wife,  a  decree  nisi  had  been  pronounced,  bnt 
subsequently  the  parties  came  together  again, 
and  on  the  wife's  application  the  decree  nisi  was 
rescinded  on  proof  that  notice  had  been  given  to 
the  husband.  Troward  v.  Troward,  32  W.B. 
864— Butt,  J. 

Death  of  Petitioner  after— Revivor.]— 

A  husband  who  had  obtained  a  decree  nisi  for 
dissolution  of  his  marriage  died  before  the  time 
for  making  it  absolute  had  arrived : — Held,  that 
the  legal  personal  representative  of  the  husband 
could  not  revive  the  suit  for  the  purpose  of 
applying  to  make  the  decree  absolute,  atankop* 
v.  Stanlivpe,  11  P.  D.  103  ;  65  L.  JM  P.  36  ;  54 
L.  T.  906  ;  34  W.  B.  446  ;  50  J.  P.  276— a  A. 

Rehearing.}— By  r.  62  of  the  Rules  in  Divorce 


r 


897 


HUSBAND    AND    WIFE. 


898 


and  Matrimonial  Causes,  an  application  for  the 
rehearing  of  a  cause  should  be  made  to  a  divi- 
sional court.    Heye*  v.  Heyee,  36  W.  R.  527— D. 

Itw  Trial— Misdirection — Grounds  in  Notice 
tf  lotion.]— Ord.  XXXIX.  r.  3— which  requires 
that  when  a  new  trial  is  applied  for  on  the 
ground  of  misdirection  the  particulars  of  the 
alleged  misdirection  should  be  specifically  stated 
in  the  notice— is  applicable  to  proceedings  in  a 
(fierce  suit.  Murfett  v.  Smith  (12  P.  D.  116), 
followed.  Taplin  v.  TapUn,  13  P.  D.  100  ;  67 
L  J.f  P.  79  ;  58  L.  T.  925  ;  37  W.  R.  256  ;  52 
J.  P.  406— D. 

—  When  Granted.1—  Whether  the  rules  as 
to  granting  a  new  trial  on  the  ground  of  fresh 
evidence  discovered  showing  misconduct  in  the 
petitioner  are  the  same  as  in  a  case  between 
ordinary  litigants,  quaere.  Howarth  v.  Howarth, 
*  P.  D.  219 ;  51  L.  T.  872— C.  A. 

—  Time  for  Appealing.]— An  appeal  from 
a  decision  of  a  judge  of  the  Probate  Division 
granting  or  refusing  a  new  trial  in  the  Divorce 
Court  moat  be  made  within  14  days  in  accord- 
ance with  the  Divorce  Court  Act,  1860  (23  & 
»  Vict,  c  144),  s.  2.  Ahier  v.  Ahier,  10  P.  D. 
110;  54  L.  J., P.  70  ;  52 L.  T.  744  ;  33  W.  R.  770 
-C.A. 

The  court  has  no  power  to  extend  the  time  for 
appealing  limited  by  statute.    Jb. 

Appeal— Court  of  Appeal  to  House  of  Lords 
—tiie.]— Since  the  Judicature  Act  of  1881,  an 
appeal  to  the  House  of  Lords  in  a  matrimonial 
casae  (where  an  appeal  lies)  can  only  be  from  a 
decision  of  the  Court  of  Appeal ;  and  such  an 

2 peal  must  be  brought  within  one  month  after 
i  decision  appealed  against  is  pronounced  by 
the  Court  of  Appeal,  if  the  House  of  Lords  is 
then  sitting,  or  it  not,  within  fourteen  days  after 
the  House  of  Lords  next  sits.  Cleaver  v.  Cleaver, 
*  App.  Cas.  631— H.  L.  (E.) 


«.  INTERVENTION  OP  QUEEN'S  PROCTOR 
AND  OTHERS. 

fir whit  Case*—"  Material  facts  not  brought 
••*»  the  Court."] — A  wife  sued  for  dissolution 
of  marriage  on  the  ground  of  adultery  and  cruelty. 
He  husband  alleged  that  the  wife  had  been 
flriltyof  adultery.  At  the  trial  a  decree  nisi  for 
dianlation  was  made.  The  husband  applied  for 
*  new  trial  on  the  ground  that  fresh  evidence 
had  heen  discovered  to  show  the  wife's  adultery 
before  the  decree  nisi,  and  filed  affidavits  alleging 
frets  not  known  at  the  trial  which  went  to  prove 
•daJtery.  He  obtained  a  rule  nisi,  but  the  rule 
*ss  discharged  on  argument.  The  husband 
•Waled.  Immediately  afterwards  an  uncle  of 
the  husband  entered  an  appearance  as  intervener, 
and  filed  affidavits  which  were  substantially  the 
■ame  as  those  used  on  the  application  for  a  new 
trial  There  was  nothing  to  show  that  he  was 
acting  on  behalf  of  or  in  collusion  with  the  re- 
spondent. The  wife  moved  to  make  the  decree 
for  dissolution  absolute.  This  was  refused,  but 
kave  was  given  her  to  move  the  court  to  reject 
the  intervention.  The  husband  abandoned  his 
appeal  from  the  refusal  of  a  new  trial.  After 
this  the  motion  of  the  wife  to  reject  the  inter- 


vention of  the  uncle  was  heard  by  the  president 
and  refused.  The  wife  appealed  : — Held,  by  the 
Court  of  Appeal,  that  the  act  23  &  24  Vict.  c. 
144,  8.  7,  authorises  intervention  by  any  person 
where  material  facts  have  not  been  brought 
before  the  court,  whether  by  intention  or  through 
accident.  Whether,  where  the  petitioner,  after 
'  the  decree  nisi,  is  guilty  of  conduct  disentitling 
him  or  her  to  have  the  decree  made  absolute,  the 
right  to  intervene  is  confined  to  the  Queen's 
proctor,  quaere.  Howarth  v.  Howarth,  9  P.  D. 
219  ;  51  L.  T.  872— C.  A. 

The  words  "not  brought  before  the  court" 
mean,  not  brought  before  the  court  at  a  time 
when  the  court  can  act  upon  them  for  the 
purpose  of  seeing  whether  a  decree  nisi  ought  to 
be  made,  and  that  the  bringing  them  before  the 
court  on  an  application  for  a  new  trial  is  not 
bringing  them  before  the  court  within  the 
meaning  of  this  clause,  so  as  to  prevent  an 
intervention.    lb. 

Where  a  respondent  is  not  entitled  to  a  new 
trial,  intervention  on  the  ground  of  fresh  evidence 
as  to  acts  prior  to  the  decree  nisi  will  not  be 
allowed  if  the  intervener  is  merely  acting  on  be- 
half of  and  in  collusion  with  the  respondent ; 
but  the  fact  that  he  is  a  near  relative  of  the 
respondent  is  no  ground  for  rejecting  the  inter- 
vention : — Held,  therefore,  that  in  the  present 
case,  the  facts  alleged  being  undoubtedly  mate- 
rial, and  the  affidavits  making  a  case  which 
showed  that  there  was  ground  for  investigating 
them,  the  intervention  had  rightly  been  allowed. 
lb. 


Queen's  Proctor.] — In  a  husband's  peti- 


tion for  dissolution  of  marriage,  where  specific 
charges  of  adultery  have  been  investigated  and 
decided  in  the  affirmative,  the  Queen's  Proctor 
is  entitled  to  intervene  for  the  purpose  of  show- 
ing that  the  finding  is  wrong,  by  reason  of  mate- 
rial facts  not  having  been  brought  to  the  know- 
ledge of  the  court.  Crawford  v.  Crawford, 
11  P.  D.  160  ;  35  W.  R.  31— Hannen,  P. 

Where  specific  charges  of  adultery  have  been 
investigated  and  decided  in  the  affirmative,  the 
Queen's  Proctor  is  entitled  to  intervene  for  the 
purpose  of  showing  that  the  finding  ought  to 
have  been  the  other  way,  in  consequence  of 
material  facts  not  having  been  brought  before 
the  court ;  and  if  he  comes  to  the  conclusion, 
from  material  facts  brought  to  his  notice,  that  a 
decree  nisi  has  been  obtained  contrary  to  justice, 
it  is  his  duty  to  bring  such  facts  to  the  know- 
ledge of  the  court.  Crawford  v.  Crawford, 
55  L.  J.,  P.  42  ;  55  L.  T.  304  ;  34  W.  R.  677— 
C.A. 

Restoration  of  Co-respondent  to  Suit.  J — At  the 

trial  of  a  husband's  petition  for  a  dissolution 
of  marriage  the  petitioner  deposed  to  a  con- 
fession made  to  him  by  his  wife  of  the  com- 
mission of  adultery  with  the  co-respondent*  The 
judge  granted  a  decree  nisi,  but  held  that  there 
was  no  evidence  against  the  co-respondent,  who 
was  dismissed  from  the  suit,  with  costs.  The 
co-respondent  was  not  called  to  disprove  the 
charges  of  adultery.  The  Queen's  Proctor  after- 
wards entered  an  appearance  and  filed  a  plea, 
alleging  that  the  decree  was  pronounced  con- 
trary to  the  justice  of  the  case  by  reason  of 
material  facts  not  being  brought  before  the 
court ;  that  certain  witnesses  who  were  known 

G  a 


I 


899 


HUSBAND    AND    WIFE. 


900 


by  both  parties  to  be  in  court,  and  whose  evi- 
dence was  material,  were  not  called  ;  and  that, 
apart  from  the  alleged  confession  by  the  re- 
spondent, there  was  no  evidence  of  adultery  : — 
The  court  refused  to  strike  out  the  Queen's 
Proctor's  plea,  and  also  refused  leave  to  the 
respondent  and  the  co-respondent  to  appear  on 
the  rehearing  of  the  suit    lb. 

Pleading.]— It  is  sufficient  for  the  Queen's 
Proctor  to  allege  in  his  plea  that  the  decree  was 
pronounced  contrary  to  the  justice  of  the  case 
by  reason  of  material  facts  not  being  brought 
to  the  knowledge  of  the  court.  Crawford  v. 
Crawford,  11  P.  D.  150 ;  35  W.  R.  31— Hannen,  P. 

Costs  of  Queen's  Proctor  as  against  Co- 
respondent]— See  Blackhall  v.  Blackball, 
infra. 


7.  COSTS. 

Wife's  Petition— Security  for  Costs.]— Where 
the  wife  had,  prior  to  the  hearing,  obtained  an 
order  under  Rule  126  for  a  reference  to  the 
Taxing-master  to  fix  a  sum  to  be  lodged  in 
court,  or  secured  by  the  husband,  to  cover  her 
costs  of  the  trial ;  but  her  solicitor  took  no  steps 
to  have  the  order  carried  out,  and  proceeded  to 
trial  without  any  sum  being  lodged  or  secured  : 
— Held,  that  if  the  wife  failed  to  establish  her 
case,  she  was  not  entitled  to  costs  against  her 
husband.  Carnegie  v.  Carnegie,  15  L.  R.,  Ir. 
513— Mat. 

At  the  hearing  of  a  suit  for  divorce  preferred 
by  the  wife,  the  charges  of  cruelty  were  with- 
drawn, and  those  of  adultery  were  not  proved 
and  the  petition  was  accordingly  dismissed.  No 
order  had  been  made  upon  the  husband  to  secure 
any  sum  for  his  wife's  costs.  The  court  refused 
to  order  the  respondent  to  pay  the  costs  of  the 
petitioner.  Thompson  v.  Thompson,  57  L.  T. 
374— Butt,  J. 

Adultery  proved— Appeal] — A  husband  and 
wife  who  were  married  before  1882,  presented 
cross  petitions  for  dissolution  of  marriage,  the 
wife's  petition  being  presented  before  that  of 
her  husband.  They  were  both  found  guilty  of 
adultery,  and  the  husband  was  also  found  guilty 
of  cruelty  of  an  aggravated  character.  The 
judge  refused  to  decree  dissolution  of  marriage, 
but  granted  the  wife  a  decree  for  judicial  sepa- 
ration, and  gave  her  her  costs.  The  husband 
having  appealed,  the  Court  of  Appeal  discharged 
the  order  for  judicial  separation  : — Held,  that 
the  wife  was  entitled,  notwithstanding  her 
adultery,  to  her  costs  both  in  the  court  below  and 
on  the  appeal.  Semble  : — If  the  wife  had  been 
herself  the  appellant,  and  had  been  unsuccessful, 
she  would  not  have  had  her  costs  of  the  appeal. 
Otway  v.  Otway,  13  P.  D.  141  ;  57  L.  J.,  P.  81 ; 
59  L.  T.  153— C.  A. 

Husband's  Petition  —  Order  against  Guilty 
Wife.] — On  a  husband's  petition  a  decree  was 
pronounced  on  account  of  the  wife's  adultery 
with  costs  against  the  co-respondent.  It  was 
proved  that  the  wife  was  possessed  of  separate 
property  and  an  order  was  made  against  the  wife 
for  the  costs  of  the  suit.  MUlward  v.  Mill  ward, 
67  L.  T.  569  ;  51  J.  P.  616— Hannen,  P. 


The  court  has  absolute  discretion  to  make  such 
order  as  to  costs  as  to  it  may  seem  just,  and  will 
not  enquire  whether  at  the  time  the  wife  com- 
mitted the  wrongful  act,  she  had  or  had  not  any 
separate  estate,  but  will  only  consider  what  is 
just  at  the  time  when  it  has  to  arrive  at  a 
decision ;  if  the  court  finds  that  at  that  time 
there  is  property  of  the  guilty  wife  upon  which 
an  order  for  costs,  if  made,  can  operate,  the 
guilty  wife,  like  any  other  unsuccessful  litigant, 
will  be  condemned  in  costs.  Hyde  v.  Hyde, 
59  L.  T.  523— Hannen,  P. 


Notice  of  Application.] — Where  on  a 


husband's  petition  for  divorce,  application  was 
made  to  condemn  the  wife,  who  had  not  appeared 
to  defend  the  suit,  in  costs,  the  court  declined 
to  entertain  the  application  until  she  had 
received  notice  of  it  Field  v.  Field,  13  P.  D. 
23;  58  L.  T.  90  ;  36  W.  R.  720;  52  J.  P.56- 
Hannen,  P. 

Against  Co-respondent — Queen's  Procter.]- 
The  court  refused  to  condemn  a  co-respondent* 
who  had  not  been  dismissed  from  the  suit,  in  the 
costs  of  an  unsuccessful  intervention  by  the 
Queen's  Prootor  under  23  &  24  Vict  c.  144,  s.  7. 
Blackhall  v.  Blackhall,  13  P.  D.  94 ;  57  L.  J. 
P.  60 ;  59  L.  T.  151 ;  36  W.  R.  926— Butt,  J. 

Agreement  to  Pay— Power  to  make  Agreeaeit 
an  order  of  Queens  Bench  Division,]— An  action 
for  judicial  separation  in  the  Divorce  Dmsioo 
was  compromised  by  the  parties,  and  an  agree* 
ment  of  compromise  signed  by  them  which  pro- 
vided that  a  separation  deed  should  be  executed ; 
that  the  agreement  might  be  made  a  rule  of  the 
High  Court,  and  that  the  respondent  should  par 
the  petitioner's  taxed  costs.  A  separation  deed 
was  afterwards  executed,  but  the  respondent 
refused  to  pay  the  taxed  costs,  and  the  agree- 
ment was  made  an  order  of  the  Queen's  Bench 
Division  for  the  purpose  of  enforcing  payment : 
— Held,  that  there  was  power  to  make  the  agree- 
ment an  order  of  court  in  the  Queen's  Beoca 
Division,  and  that  as  the  agreement  of  compro- 
mise bad  been  reduced  to  an  agreement  to  pay 
costs,  the  discretion  of  the  court  to  make  the 
order  had  been  rightly  exercised.  Smyt he  ▼. 
Smythe,  18  Q.  B.  D.  544 ;  56  L.  J.,  Q.  B.  217 ;  54 
L.  T.  197  ;  35  W.  R.  346— D. 

Injunction  to  restrain  Parting  with  Property 
— Reconciliation — Continuing  Injunction.  ]-A 
judicial  separation  having  been  pronounced  at 
the  suit  of  the  wife,  an  interim  injunction  wtf 
obtained  against  the  husband  restraining  hia 
from  dealing  with  certain  property  belonging  to 
him.  Subsequently  a  reconciliation  took  plaee. 
The  wife's  solicitor  applied  to  have  the  injanctke 
continued  until  a  receiver  of  the  property  should 
be  appointed  or  until  the  balance  of  his  costi 
was  paid ;  the  court  refused  to  continue  the  in- 
junction or  to  appoint  a  receiver.  Navet  r, 
Hawes,  57  L.  T.  374— Butt,  J. 

Charging  Order-  Solicitor— Permanent  Ssis* 
tenanoe.] — A  sum  secured  to  the  wife  on  a 
dissolution  of  marriage  under  s.  32  of  the  Divorce 
Act,  1857,  is  not  alimony,  and  is  property  in  re- 
spect of  which  the  court  has  jurisdiction  to  grant 
the  wife's  solicitor  a  charging  order  for  corf* 
under  s.  28  of  the  Solicitors  Act,  1860 ;  but  the 
court  will  not  grant  such  an  order  unless  the 


J 


r 


901 


HUSBAND    AND    WIFE. 


902 


solicitor  make  oat  a  prima  facie  case  of  inability 
to  obtain  payment  in  any  other  way.  Harrison 
i.  Harrison,  13  P.  D.  180 ;  58  L.  J.,  P.  28 ;  60 
L  T.  39  ;  36  W.  R.  748— C.  A. 


8.  ALIMONT  AND  MAINTENANCE. 

a.  Pendente  lite. 

Arrears— Application  of  Ord.  XIV.]— A  claim 
for  arrears  of  alimony  pendente  lite  is  not  a 
claim  for  "a  debt  or  liquidated  demand  in 
money,"  within  the  meaning  of  Ord.  III.  r.  6,  so 
is  to  entitle  the  plaintiff  to  judgment  under 
Ord.  XIV.  r.  1.  Bailey  v.  Bailey,  13  Q.  B.  D. 
855 ;  53  L.  J.f  Q.  B.  583— C.  A.  Affirming,  50 
L  T.  722  ;  32  W.  R.  856— D. 

Wife  found  Guilty  of  Adultery.]  — Where 
alimony  pendente  lite  has  been  allotted  to  a 
wife  in  a  petition  for  divorce,  such  alimony 
ceases  upon  a  verdict  finding  her  guilty  of  adul- 
tery, but  the  court  may  in  its  discretion  make 
an  order  for  the  alimony  to  continue.  Wells  v. 
Wells  (3  8w.  &  Tr.  542)  discussed.  Dunn  v. 
D***,  13  P.  D.  91  ;  67  L.  J.,  P.  58 ;  59  L.  T. 
385 ;  36  W.  B.  539— C.  A. 

lullity — Payment  continues  till  Decree  Ab- 
solute.]— See  A  (/.  c.  B.")  v.  B.,  ante,  coL  887. 

Separation  Deed— Covenant  not  to  Molest] — 
By  a  separation  deed  the  husband  covenanted 
to  make  an  allowance  to  the  wife  determinable 
upon  her  molesting  him.  The  husband  subse- 
quently discontinued  the  allowance  on  the 
ground  that  the  wife  had  broken  her  covenant 
not  to  molest  him.  The  wife  afterwards  insti- 
tuted a  suit  for  judicial  separation  and  applied 
for  an  allowance  of  alimony  pendente  lite  : — 
Held,  that  she  was  entitled  to  such  allowance. 
Wood  v.  Wood,  57  L.  J.,  Ch.  1  ;  57  L.  J.,  P.  31  ; 
57  L.  T.  746  ;  36  W.  B.  33— C.  A. 

Substituted  Service  of  Petition.] — On  a  motion 
for  substituted  service  of  a  petition  for  alimony 
pendente  lite,  in  a  case  where  substituted  service 
of  the  petition  for  divorce  had  previously  been 
ordered  by  service  upon  the  respondent's  agents, 
the  court  granted  the  motion,  and  as  it  appeared 
that  a  copy  of  the  petition  for  alimony  had 
already  been  sent  in  a  registered  letter  to  the 
agent's  address,  ordered  that  farther  service 
should  be  dispensed  with.  Odevaine  v.  Ode- 
mine,  58  L.  T.  564  ;  52  J.  P.  280—  Butt,  J. 

Injunction  to  restrain  Removal  of  Property.] 
—Toe  court  will  not,  in  order  to  protect  a  wife's 
right  to  alimony,  restrain  a  husband  from  re- 
moving his  property  out  of  the  jurisdiction  of 
the  court  before  an  order  for  alimony  has  been 
made.  Newton,  v.  Newton,  11  P.  D.  11  ;  65  L.  J., 
P.  13  ;  34  W.  B.  123— Hannen,  P. 

Vet  a  "final  Judgment" — Order  for  pay- 
ment ] — An  order  for  the  payment  of  alimony 
pendente  lite  is  not  a  "  final  judgment "  against 
the  husband  within  the  meaning  of  sub-s.  1  (a) 
of  a  4  of  the  Bankruptcy  Act,  1883,  and  a  bank- 
ruptcy notice  cannot  be  issued  against  the  hus- 
band in  respect  of  arrears  doe  under  such  an 
order.  Moore,  Ex  parte  (14  Q.  B.  D.  627)  dis- 
tinguished.   Henderson,  Ex  parte,  Henderson, 


In  re,  20  Q.  B.  D.  509  ;  57  L.  J.,  Q.  B.  258  ;  58 
L.  T.  835  ;  36  W.  B.  567  ;  5  M.  B.  R.  52— C.  A. 

Order  for  Alimony— Payment  by  Instalments.] 

— On  January  30,  1888,  an  order  for  alimony 
pendente  lite,  and  on  February  1,  1888,  an  order 
for  permanent  alimony  was  made  in  the  Probate 
and  Divorce  Division.  The  sum  of  1302.  being 
due  under  these  orders,  a  judgment  summons  in 
respect  thereof  was  issued  by  the  wife : — Held, 
that  a  receiving  order  in  lieu  of  committal  could 
not  be  made  by  the  court  against  the  husband 
under  s.  5  of  the  Debtors  Act,  1869,  and  that  an 
order  directing  payment  by  monthly  instalments 
of  101.  should  be  made.  Otway,  Ex  parte, 
Otway,  In  re,  58  L.  T.  885 ;  36  W.  R.  698 ;  5 
M.  B.  K.  115— Cave,  J. 

Von  -  payment  —  Order  for  Attachment.]  — 
Where,  in  an  order  for  payment  of  alimony,  the 
periods  for  payment  are  specified,  an  absolute 
order  for  an  attachment  under  the  Debtors  Act 
may  be  made,  without  any  preliminary  order  for 
payment  by  instalments.  Daly  v.  Daly,  17  L.  B., 
Ir.  372— Mat 


b.  Permanent  Alimony. 

Proof  in  Bankruptcy — "  Future  Debt  or  Ida- 
bility."] — A  liability  to  pay  alimony  in  weekly 
sums  by  an  order  made  in  divorce  under  s.  1  of 
29  &  30  Vict.  c.  32,  is  not  "  a  future  debt  or 
liability"  provable  in  bankruptcy  under  the 
Bankruptcy  Act,  1883,  s.  37,  sub-s.  3  ;  and,  not- 
withstanding the  bankruptcy  of  the  person 
liable,  payment  may  be  enforced  as  of  a  debt 
due  in  pursuance  of  an  order  of  a  competent 
court  under  s.  5  of  the  Debtors  Act.  Linton, 
Ex  parte,  Linton,  In  re,  15  Q.  B.  D.  239;  54 
L.  J.,  Q.  B.  529  ;  52  L.  T.  782  ;  33  W.  R.  714  ; 
49  J.  P.  597  ;  2  M.  B.  R.  179—0.  A. 

Receiving  Order  in  lien  of  Committal.] — See 
Otway,  Ex  parte,  supra. 

Husband  and  Wife  entitled  to  Property  in 
Reversion— Bum  Casta  et  Sola  Clause.]— The 
court  in  allotting  permanent  maintenance  will 
not  interfere  with  reversionary  interests,  except 
under  special  circumstances,  where  for  instance 
it  would  be  otherwise  impossible  to  secure  a  pro- 
vision for  the  wife.  On  a  petition  for  permanent 
maintenance  and  variation  of  settlements,  after 
decree  absolute  at  the  wife's  suit  for  adultery 
and  cruelty,  the  registrar  found  that  the  re- 
spondent would  come  into  possession  on  the 
death  of  a  person  aged  ninety  years  of  a  sum 
which  would  about  double  his  income.  The 
wife,  in  addition  to  the  income  arising  out  of  a 
fund  in  settlement  in  which  she  had  the  first 
interest,  was  entitled  to  a  sum  in  reversion 
which  would  also  about  double  her  income.  The 
husband  had  brought  nothing  into  settlement, 
and  the  registrar  proposed  that  he  should  secure 
to  his  wife  a  present  annual  payment  bringing 
up  her  income  to  a  third  of  the  joint  income, 
and  that  on  his  reversion  falling  in  he  should 
secure  a  further  sum  bringing  up  her  future 
income  to  the  same  proportion,  taking  her  re- 
version also  into  consideration.  The  court 
refused  to  confirm  this  recommendation,  but 
allotted  the  wife  an  annual  sum  equal  to  one- 
third  of  the  husband's  present  income,  leaving 

a  a  2 


j 


903 


HUSBAND    AND    WIFE. 


904 


the  reversionary  interests  of  both  parties  un- 
touched. The  court  also  declined  to  insert  a 
dum  sola  et  casta  vixerit  clause  in  the  order. 
Harrison  v.  Harrison,  12  P.  D.  130  ;  56  L.  J., 
P.  76  ;  57  L.  T.  119  ;  35  W.  B.  703— Butt,  J. 

Assignment  of  Allowance  out  of  Lunatic's 
Estate.]— On  a  decree  for  judicial  separation  an 
order  was  made  for  payment  of  602.  a  year  to 
the  wife  as  permanent  alimony.  The  husband 
was  afterwards  found  lunatic  by  inquisition, 
and  by  an  order  in  lunacy  and  chancery  the 
dividends  of  a  sum  of  stock  to  which  he  was 
entitled  in  a  chancery  suit  were  ordered  to  be 
carried  to  his  account  in  the  lunacy,  and  60Z.  a 
year  to  be  paid  out  of  them  to  his  wife  in  re- 
spect of  her  alimony  till  further  order.  The 
wife  assigned  the  annuity  to  a  purchaser,  who 
presented  a  petition  in  lunacy,  and  in  the  suit, 
to  have  the  annuity  paid  to  her : — Held,  that 
the  petition  mast  be  refused,  on  the  ground  that 
whether  the  annuity  was  considered  as  alimony 
or  as  an  allowance  made  to  the  wife  by  the  court 
in  lunacy,  it  was  not  assignable.  Robinson,  In 
re,  27  Ch.  D.  160 ;  53  L.  J.,  Ch.  986  ;  51  L.  T. 
737  ;  33  W.  B.  17— C.  A. 

Charging  Order  for  Costs.]  —See  Harrison  v. 
Harrison,  ante,  coL  901. 


9.  CUSTODY    OF    AND    ACCESS    TO 
CHILDBEN. 

Personal  Servioe  of  Order — Writ  of  Seques- 
tration— Discovery  in  aid  of  Execution.] — On 
the  application  by  a  husband,  who  had  obtained 
a  decree  nisi  for  divorce  against  his  wife,  an 
order  was  made  that  the  wife  should  deliver  up 
into  the  custody  of  the  husband  the  children  of 
the  marriage.  The  wife  knew  of  the  order,  but 
evaded  service  of  it,  and  disobeyed  it.  On  the 
application  of  the  husband  an  order  was  then 
made  declaring  the  wife  contumacious  and  in 
contempt,  and  directing  that  a  writ  of  seques- 
tration should  issue  against  the  estate  and  effects 
of  the  wife,  and  that  her  mother,  sister,  and 
brother-in-law  should  attend  the  court  to  be 
examined  as  to  her  whereabout : — Held,  on  ap- 
peal— first  that  as  the  wife  knew  of  the  order 
for  delivery  up  of  the  children,  and  evaded  ser- 
vice of  it,  personal  service  of  the  order  upon  her 
was  not  necessary  to  give  the  court  jurisdiction 
to  issue  the  writ  of  sequestration  ;  secondly,  that 
the  general  form  of  the  writ  of  sequestration 
against  "the  estate  and  effects"  of  the  wife, 
without  any  express  limitation  therein  to  sepa- 
rate property  of  the  wife  not  subject  to  a  re- 
straint on  anticipation,  was  right,  but  that  the 
writ  would  only  operate  on  her  separate  property 
which  was  not  so  subject ;  thirdly,  that  the 
court  had  no  jurisdiction  to  order  the  attendance 
of  third  parties  for  examination.  Scott  v.  Mor- 
ley  (20  Q.  B.  D.  120),  distinguished.  Miller  v. 
Miller  (2  L.  B.,  P.  54),  explained.  Hyde  v. 
Hyde,  13  P.  D.  166  ;  57  L.  J.,  P.  89 ;  59  L.  T. 
529 ;  36  W.  B.  708— C.  A.  See  also  Allen  v. 
Allen,  ante,  coL  889. 

Under  Guardianship  of  Infants  Act]— See 
Infant. 

Postponement  of  Decree  Absolute.]— A  decree 
nisi  having  been  pronounced  on  petition  of  the 


wife,  to  whom  was  entrusted  the  custody  of  the 
only  child  of  the  marriage,  the  court  was  moved 
to  declare  the  respondent  to  be  "  a  person  unfit  to 
have  the  custody  "  of  such  child  within  8.  6  of 
49  &  50  Vict.  c.  27.  The  court  postponed  making 
the  decree  absolute  and  adjourned  the  applica- 
tion for  further  materials.  Robinson  v.  Robinson, 
57  L.  T.  118  ;  51  J.  P.  39— Butt,  J. 

Aoeess  to  Children— Separation  Deed.]— See 
Hunt  v.  Hunt,  post,  col.  913. 


10.  PABLIAMENTABY  BILLS  OF  DIVORCE. 

Personal  Service  out  of  the  Jurisdiction- 
Affidavit  of  Servioe.] — The  respondent  in  a 
divorce  -bill  being  out  of  the  jurisdiction  and 
the  petitioner  in  poor  circumstances,  the  House 
dispensed  with  the  attendance  at  the  bar  of  a 
witness  to  prove  personal  service  of  the  bill 
and  the  several  orders  of  the  House  on  the  re- 
spondent ;  and  ordered  that  an  affidavit  proving 
such  personal  service,  and  sworn  under  18  &  19 
Vict.  c.  42,  before  the  British  minister  or  consul 
at  the  place  where  the  respondent  resided,  should 
be  deemed  sufficient  proof  of  such  service. 
JoynVs  Divorce  Bill,  13  App.  Cas.  741— H.  L 
(D.). 

Bastardising  Clause.] — A  paragraph  in  a 
divorce  bill  contained  allegations  tending  to 
bastardise  a  child  to  which  the  wife  had  given 
birth  during  the  marriage.  There  was  access  at 
the  natural  period  of  the  conception  of  the 
child  : — Held,  that  such  paragraph  was  inad- 
missible and  must  be  struck  out  of  the  bill 
Hewat's  Divorce  Bill,  12  App.  Cas.  312— R  L 
(D.). 

Service  of  Notioe  of  Second  Beading— Sub- 
stituted 8ervice.  ] — In  proceedings  upon  a  divorce 
bill  application  was  made  in  May,  1886,  to  dis- 
pense with  personal  service  on  the  respondent 
on  the  ground  that  his  address  was  unknown  to 
the  petitioner,  that  a  solicitor  who  had  previously 
acted  for  the  respondent  had  admitted  that  he 
knew  of  his  address  but  had  refused  to  divulge 
it,  and  that  the  respondent  had  been  last  heard 
of  in  February,  1886,  being  then  at  Montreal, 
in  Canada  : — Held,  that  the  application  was 
premature,  and  must  be  refused.  Qijfor$t 
Divorce  Bill,  12  App.  Cas.  361— H.  L.  (D.). 

Where  on  a  bill  for  divorce  it  appeared  that 
the  respondent's  address  was  concealed,  and  the 
House  ordered  substituted  service,  service  wii 
ordered  to  be  made  on  the  respondent's  solicitor, 
on  the  respondent's  parent,  and  also  on  the 
person  with  whom  the  respondent  appeared  to 
be  residing.  A.'*  Divorce  Bill,  12  App.  Cas. 
364— H.  L.  (D.). 

Adultery— Impotence — Provision  for  Wife,]— 
Where,  on  a  bill  of  divorce  by  the  husband  on 
the  ground  of  the  wife's  adultery,  the  adultery 
was  proved,  but  it  appeared  that  the  husband 
had  not  fulfilled  his  duty  by  providing  a  home 
for  the  wife  when  she  was  separated  from  him 
by  order  of  his  medical  attendant,  the  House  in 
passing  the  bill  directed  that  a  clause  should  be 
added  making  provision  for  the  wife.  AS* 
Divorce  Bill,  12  App.  Cas.  364— H.  L.  (D.). 

Allowance  to  Wife.]— Where  upon  a  bill  for 


905 


HUSBAND    AND    WIFE, 


906 


diTorce  by  the  husband  it  appears  that  the  wife 
has  no  means  to  defend  herself,  the  House  will 
order  the  husband  to  pay  her  a  small  sum  in 
order  that  she  may  make  her  defence.  A.'s 
Bmree  BUI,  12  App.  Cas.  364— H.  L.  (D.). 

Cruelty.]  —  Acts  which  would  if  done  in 
England  be  held  by  the  High  Court  of  Justice  to 
constitute  legal  cruelty,  will  also  be  held  to  con- 
stitute legal  cruelty  in  divorce  bills.  GiffortFs 
bitorce  BUI,  12  App.  Cas.  361— H.  L.  (D.). 

wife's  Bill— Adultery  coupled  with  Cruelty.] 
—The  same  evidence  which  since  the  Divorce 
Act,  1857,  enables  the  Divorce  Court  to  pro- 
nounce a  decree  for  dissolution  of  marriage  will 
be  considered  by  the  House  of  Lords  sufficient 
ground  for  passing  a  divorce  bill  relating  to 
Ireland,  where  that  act  does  not  apply. 
Wtitropjtt  Divorce  BUI,  11  App.  Cas.  294— 
H.  L.  (D.). 


11.  ORDER    BY    JUSTICES    FOR 
JUDICIAL    SEPARATION. 

Jurisdiction.] — Magistrates  at  petty  sessions 
have  power  to  order  a  judicial  separation  for  an 
aggravated  assault,  even  though  they  only  inflict 
the  penalty  of  fine  or  imprisonment  for  a  common 
assault.  Woods  v.  Woods,  10  P.  D.  172 ;  33  W. 
R.  323  ;  50  J.  P.  199— Butt,  J. 

Banmption  of  Cohabitation,  Effect  ol] — 
Upon  the  conviction  of  a  husband  for  an  aggra- 
vated assault  on  his  wife,  justices  made  an  order, 
under  s.  4  of  the  Matrimonial  Causes  Act,  1878, 
that  the  wife  should  be  no  longer  bound  to 
cohabit  with  her  husband,  and  that  he  should  pay 
to  her  a  weekly  sum  for  her  maintenance.  The 
wife  subsequently  resumed  cohabitation  with  her 
husband  for  a  time,  and  then  again  left  him  : — 
Held,  that  the  order  was  annulled  by  reason  of 
the  subsequent  resumption  of  cohabitation,  and 
therefore  that  the  wife  could  not  enforce  pay- 
ment of  weekly  sums  alleged  to  have  become 
due  under  it  after  she  again  left  her  husband. 
Hodden  v.  Ha&don,  18  Q.  B.  D.  778  ;  56  L.  J., 
M.  C.  69 ;  56  L.  T.  716  ;  51  J.  P.  486 -D. 

Application  to  vary  Order — Evidence  of  Wife's 
Adultery.] — Where  an  order  has  been  made 
under  section  4  of  the  Matrimonial  Causes  Act, 
1878,  authorising  a  wife  to  refuse  to  cohabit 
with  her  husband,  the  presumption  of  non-access 
applies  from  the  date  of  the  order  as  in  the  case 
of  a  judicial  separation  ;  and  the  justices  on  an 
application  to  vary  the  order  on  account  of  the 
wife's  adultery  cannot  refuse  to  receive  the 
direct  evidence  of  the  husband  or  the  admissions 
of  the  wife  in  proof  of  the  paternity  of  a  child 
born  more  than  nine  months  after  the  separation. 
Httherington  v.  Ifetherington,  12  P.  D.  112  ;  56 
L.  J„  P.  78  ;  57  L.  T.  533  ;  36  W.  R.  12  ;  51  J. 
P.  119 ;  294— Hannen,  P. 

Application  to  Discharge  Order  for  Payment 
—Bow  made.] — Where  an  order  has  been  made 
under  the  Matrimonial  Causes  Act,  1878  (41  & 
42  Vict.  c.  19),  s.  4,  for  the  payment  of  money  by 
the  husband  or  custody  of  children  by  the  wife, 
an  application  to  discharge  the  order  on  the 
ground  that  the  wife  has  been  guilty  of  adultery 


must  be  made  to  the  court  or  magistrates  by 
whom  the  order  was  made,  and  not  to  the  Probate 
and  Admiralty  Division.    lb. 

Appeal  to  what  Court.] — An  order  under  s.  4 
of  the  Matrimonial  Causes  Act,  1878,  or  a  re- 
fusal by  the  justices  to  vary  such  order,  is 
subject  to  appeal  to  the  Probate  and  Admiralty 
Division,  although  the  justices  have  stated  a  case 
for  the  opinion  of  the  Queen's  Bench  Division, 
which  has  not  been  determined,    lb. 

A  husband  having  been  convicted  of  an  aggra- 
vated assault  on  his  wife  was  sentenced  to  one 
month's  imprisonment  and  the  justices  ordered  a 
judicial  separation  and  an  allowance  to  the  wife 
of  £2  a  week  :  notice  of  appeal  to  quarter 
sessions  against  the  conviction  was  given,  and 
pending  the  appeal  the  husband  applied  to  the 
Probate,  Divorce  and  Admiralty  Division  to  have 
the  order  varied :— Held,  that  the  court  would 
hear  the  appeal,  though  the  appeal  to  quarter 
sessions  was  pending.  Goodwin  v.  Goodwin,  51 
J.  P.  583— Butt,  J. 

Power  to  Order  Maintenance.] — See  post,  cols. 
933,  934. 


12.  EFFECT    OF    DECREE. 

Judicial  Separation  —  Wife's  Property — 
Property  subsequently  acquired.]— A  wife  who 
has  obtained  a  decree  for  judicial  separation  is  to 
be  considered  as  a  feme  sole  with  respect  to  such 
property  only  as  she  may  acquire  or  which  may 
come  to  or  devolve  upon  her  after  the  decree : 
s.  25  of  the  Divorce  and  Matrimonial  Causes  Act, 
1857  (20  &  21  Vict.  c.  85),  not  applying  to  pro- 
perty to  which  the  wife  was  entitled  in  possession 
at  the  date  of  the  decree.  Cooke  v.  Fuller  (26 
Beav.  99)  distinguished.  Waite  v.  Morland,  38 
Ch.  D.  135  ;  57  L.  J.,  Ch.  655  ;  59  L.  T.  185  ;  36 
W.  R.  484— C.  A. 

Covenant     to     Settle     After-acquired 

Property.] — Where  a  marriage  settlement  con- 
tained a  covenant  to  settle  all  property  (except 
jewellery  and  money  up  to  200/.)  which  the  wife, 
or  her  husband  in  her  right,  might  acquire  "during 
the  intended  coverture,"  and  after  a  decree  for 
judicial  separation  the  wife  became  entitled  to 
certain  stocks  : — Held,  that  by  virtue  of  s.  26  of 
the  Divorce  Act,  1857,  the  stocks  belonged  to  her 
as  a  feme  sole,  and  that  the  covenant  to  settle 
"  during  the  coverture  "  had  become  inoperative. 
Dawes  v.  Creyhe,  30  Ch.  D.  500  ;  54  L.  J.,  Ch. 
1096  ;  53  L.  T.  292  ;  33  W.  R.  869— V.-C.B. 

Divorce— Bequests  in  Wills—" Wife."]— A 
testator  left  shares  in  his  residuary  estate  in  trust 
for  his  sons  for  life,  and  from  and  after  the 
decease  of  each  son,  in  trust  to  permit  any  wife 
of  such  son  to  receive  the  income  of  his  share 
during  her  life.  One  of  the  sons  married,  was 
divorced  from  his  wife  and  died  : — Held,  that 
the  divorced  wife  was  not  entitled  to  the  life 
interest  in  his  share.  Bullmore  v.  Wynter  (22 
Ch.  D.  619)  disapproved.  Hitchinsv.  Morrieson, 
40  Ch.  D.  30  ;  68  L.  J.  Ch.  80 ;  59  L.  T.  847  ;  37 
W.  R.  91— Kay,  J. 

"  Sole  and  Unmarried."] — A  testatrix,  by 

her  will  made  in  1860,  bequeathed  a  fund  to 


907 


HUSBAND    AND    WIFE. 


908 


trustees,  on  trust  to  pay  the  income  to  her  hus- 
band for  his  life,  and  on  his  death  to  divide  the 
fund  into  four  equal  parts,  and,  as  to  one  of  the 
parts,  "  upon  trust  to  pay  the  same  to  J.  H„ 
spinster,  if  she  be  then  sole  and  unmarried,  but, 
if  she  be  then  married,"  the  testatrix  directed  her 
trustees  to  pay  the  income  of  the  fourth  part  to 
J.  H.,  for  her  life,  for  her  separate  use,  and  after 
her  death  to  hold  it  on  trust  for  her  children. 
In  June,  1878,  the  testatrix  died,  and  her  hus- 
band died  in  April,  1888.  In  April,  1861,  J.  H. 
married,  and  in  November,  1 878,  a  decree  absolute 
was  made  for  the  dissolution  of  her  marriage. 
There  were  three  children  of  the  marriage.  J. 
H.  did  not  marry  again  : — Held,  that  the  words 
"  then  sole  and  unmarried  "  meant "  not  having 
a  husband"  at  the  time  of  the  death  of  the  tenant 
for  life,  and  that  in  the  events  which  had  hap- 
pened, J.  H.  was  absolutely  entitled  to  the  one- 
fourth  share.  Lesingham's  Trusts,  In  re,  24  Ch. 
D.  703 ;  58  L.  J.,  Ch.  333  ;  49  L.  T.  285  ;  32  W. 
R.  116— North,  J. 


13.  VARIATION   OF   SETTLEMENTS   AND 

DEEDS. 

After  Decrees  for  Nullity.] — See  ante,  col. 
888. 

Motion  to  eonfinn  Registrar's  Report.]— A 
motion  to  confirm  a  registrar's  report  ordering  a 
variation  of  a  settlement  after  a  decree  for  dis- 
solution of  the  marriage,  need  not  be  made 
within  fourteen  days  after  notice  of  the  filing  of 
the  report  in  the  registry  by  the  petitioner. 
Farrington  v.  Farrington,  11  P.  D.  84  ;  55 
L.  J.  P.  69— Butt,  J. 

Concurrent  Jurisdiction  of  Chancery  Division.] 

— The  Chancery  Division  has  the  same  juris- 
diction as  the  judge  of  the  Probate  Division  to 
modify  settlements,  but  where  the  matter  has 
already  been  gone  into  in  that  division,  a  judge 
of  the  Chancery  Division  will  not  interfere. 
After  dissolution  of  marriage  on  the  husband's 
petition,  an  order  was  made  that  trustees  of  the 
marriage  settlement  should  pay  an  annual  sum 
out  of  settled  real  property  of  the  wife  to  the 
husband  for  the  maintenance  of  the  infant  child 
of  the  marriage.  The  husband  having  died,  the 
widow  became  absolutely  entitled  to  the  pro- 
perty, and  a  further  order  directed  that  the 
trustees  of  the  settlement  should  pay  the  annuity 
to  the  guardians  of  the  infant.  There  were,  in 
fact,  no  trustees  at  that  time.  The  annuity  was 
subsequently  declared  to  be  perpetual.  On  the 
application  by  the  child  of  the  marriage,  the 
court  ordered  execution  of  a  deed  securing  the 
annuity  on  the  settled  property,  but  allowed  no 
costs  of  the  application,  as  the  order  might  have 
been  obtained  by  summary  process  in  the  Probate 
Division.  Blackett  v.  Blackett,  61  L.  T.  427— 
North,  J. 

Wife's  Costs  not  Considered.] — Where  a  mar- 
riage has  been  dissolved  on  the  ground  of  the 
wif  e's  adultery,  the  court  will  not,  when  directing 
the  variation  of  the  marriage  settlements,  take 
into  consideration  the  amount  of  costs  incurred 
by  the  wife.  Noel  v.  Noel,  10  P.  D.  179 ;  54 
L.  J.f  P.  73  ;  88  W.  R.  552— Hannen,  P. 


Payment  of  Annual  Bum  to  Husband.]— Upon 
application  to  vary  a  marriage  settlement  after 
a  decree  for  divorce  on  the  husband's  petition,  it 
appeared  that  the  wife's  income  under  the  settle- 
ment amounted  to  1,0502.  a  year.  The  husband 
possessed  an  income  of  about  600Z.  a  year,  part 
of  which  arose  from  money  received  from  the 
respondent.  There  were  no  children  of  the  mar- 
riage. The  court  varied  the  trusts  of  the  settle- 
ment by  ordering  the  trustees  to  pay  the  husband 
3007.  a  year  during  the  joint  lives  of  husband 
and  wife.  Farrington  v.  Farrington,  11  P.  D. 
84 ;  55  L.  J.,  P.  69— Butt,  J. 

Freedom  from  Trusts — Child  born.]— On  a 
petition  for  variation  of  settlements  after  a  decree 
for  dissolution  of  marriage  by  reason  of  the  wife's 
adultery,  where  a  child  had  been  born  between 
the  date  of  the  decree  nisi  and  decree  absolute, 
and  fourteen  months  after  the  wife  had  eloped 
from  her  husband,  the  court  refused  to  transfer 
funds  in  settlement  to  the  parties  free  from  the 
trusts  of  the  settlement.  Pryor  v.  Pryor,  12 
P.  D.  165 ;  66  L.  J.,  P.  77 ;  57  L.  T.  533 ;  35 
W.  R.  349— Hannen,  P. 


Division  of  Trust  Fund.] — By  a  post- 


nuptial settlement  a  husband  assigned  certain 
property  to  trustees  on  trust  to  pay  him  the 
income  during  his  life,  or  until  he  nad  incurred 
a  forfeiture,  and  on  a  determination  of  his  inte- 
rest, to  his  wife  for  her  life,  with  further  dis- 
cretionary trusts  for  the  benefit  of  the  husband's 
next  of  kin,  or  for  the  benefit  of  a  second  wife, 
or  the  issue  of  a  second  marriage.  The  husband 
became  bankrupt,  and  by  a  compromise  sanc- 
tioned by  the  Chancery  Division  a  portion  of  the 
fund  was  assigned  to  his  trustee  in  bankruptcy, 
and  his  interest  in  the  remainder  was  assigned 
to  the  trustees  of  the  settlement.  Subsequently 
the  marriage  was  dissolved  on  account  of  the 
wife's  adultery,  and  on  a  petition  for  variation 
of  settlements  the  registrar  proposed  that  the 
trusts  of  the  settlement  should  be  extinguished, 
and  that  seven-twelfths  of  the  fund  should  be 
paid  to  the  husband,  and  five-twelfths  to  the 
wife.  Both  parties  agreed  to  this,  but  the  trustees 
of  the  settlement  objected,  and  tbe  court  refused 
to  sanction  a  division  of  the  fund,  but  ordered 
that  the  income  of  five-twelfths  of  it  should  be 
paid  to  the  wife,  and  that  in  all  other  respects 
the  trusts  of  the  settlement  should  remain  in 
force.  Smith  v.  Smith,  12  P.  D.  102;  56 
L.  J.,  P.  51  ;  57  L.  T.  375  ;  35  W.  R.  459- 
Hannen,  P. 

Power  to  deal  with  Capital — Diicretion  of 
Judge.] — On  a  petition  for  variation  of  a  settle- 
ment the  judge  refused  to  give  tbe  wife,  the 
petitioner,  any  part  of  the  capital  of  the  fund, 
which  had  been  all  settled  by  the  husband, 
although  there  were  no  children  of  the  marriage, 
or  to  order  payment  of  the  petitioner's  costs  out 
of  the  funds.  And  he  gave  a  portion  only  of 
the  income  to  the  wife  : — The  Court  of  Appeal 
affirmed  the  decision,  holding  that  although  the 
court  had  undoubted  jurisdiction  to  deal  with  tbe 
capital,  it  was  not  for  the  benefit  of  the  wife  to 
give  her  any  portion  of  it ;  and  the  court  refused 
to  interfere  with  the  discretion  of  the  judge  as  to 
the  amount  of  income  awarded  to  her.  Pwuonbf 
v.  Ponsonby,  9  P.  D.  122 ;  53  U  J.,  P.  112;  61 
L.  T.  174  ;  32  W.  R.  746— C.  A. 


r 


909 


HUSBAND    AND    WIFE. 


910 


Povtr  of  Appointing  Hew  Trustees.] — In  the 
Ttriation  of  settlements  the  court  has  jurisdiction 
to  extinguish  a  joint  power  of  appointment  of 
new-  trustees.  Oppenheim  v.  Oppenheim,  9  P.  D. 
»;  K  L.  J.,  P.  46  ;  32  W.  B.  723— Butt,  J. 

—  Wife's  Power  of  Appointment.]  —  In  a 

petition  for  variation  of  settlements  after  a  decree 
of  dissolution  on  account  of  the  wife's  adultery, 
the  registrar  by  his  report  recommended  that 
the  power  of  appointment  over  the  fund  given  to 
the  wife  by  the  settlement  should  be  extinguished, 
and  that  she  should  be  deprived  of  the  power  of 
appointing  or  joining  in  the  appointment  of  new 
trustees.  The  petitioner  had  signified  his  willing- 
ness that  the  respondent  should  continue  to  re- 
ceive 1002.  a  year  out  of  1502.  settled  on  her. 
The  court  confirmed  the  first  of  these  recom- 
mendations, but  disallowed  the  second,  on  the 
pound  that  as  the  respondent  was  to  continue 
to  receive  an  income  from  the  fund  she  had  an 
interest  in  the  appointment  of  trustees.     An 
order  extinguishing  the  power  of  appointment  j 
<4  foods  in  the  settlement  is  an  order  made, 
within  the  words  of  the  section,  "  with  reference 
to  the  application  of  the  whole  or  a  portion  of 
the  property  settled."     Bosvile  v.  JSosvile,  13 
P.  D.  76 ;  57  L.  J.t  P.  62  ;  58  L.  T.  640 ;   36 
W.  K.  912— Butt,  J.    And  see  next  case. 

wnYi  Interest  Extinguished— Payment  of 
lalf  of  Properly — Reversion— Power  of  Appoint- 
■ssi] — Property  was  brought  into  settlement 
bj  both  the  husband  and  the  wife,  with  a  joint 
power  of  appointment  in  favour  of  the  children 
of  the  marriage ;  but  with  regard  to  the  wife's 
property,  which  included  a  reversionary  interest, 
the  settlement  gave  her,  in  certain  events,  a 
power  of  appointment  in  favour  of  a  second  or 
subsequent  marriage.  The  marriage  was  dis- 
solved on  the  ground  of  the  wife's  adultery,  the 
husband  having  the  custody  of  the  two  children 
of  the  marriage.  The  court  varied  the  settle- 
ments by  absolutely  extinguishing  the  wife's 
interest  in  the  property  brought  into  settlement 
bj  the  husband,  thus  leaving  their  respective 
incomes  nearly  equal.  The  court  further  ordered 
that  one-half  of  the  wife's  property  should  be 
{aid  to  the  husband  and  children,  without 
taking  into  account  the  amount  of  the  wife's 
ttste  of  the  suit ;  and  also  that  one-half  of  the 
vhVs  reversionary  interest  should,  upon  its  fall- 
ing into  possession,  be  assigned  to  the  husband 
and  children.  The  court  also  extinguished  the 
life's  power  of  appointment  under  the  joint 
power,  and  varied  the  wife's  power  of  appoint- 
ment over  her  own  property  in  favour  of  a  future 
■otband  or  the  children  of  a  future  marriage, 
by  restricting  its  benefit  to  any  husband  married 
after  the  death  of  the  petitioner,  and  to  children 
«f  a  subsequent  marriage  born  after  the  death 
of  the  petitioner.  Noel  v.  Noel,  10  P.  D.  179; 
M  L.  JM  P.  73 ;  33  W.  R.  562— Hannen,  P. 

Iiqniry  as  to  Legitimacy  of  Child.]  —  See 
fyer  v.  Pryor,  ante,  col.  884. 

Bsmlinf  with  Reversionary  Interests.]— &?<? 
IUrrison  v.  Harrison,  ante,  col.  903. 

Aver  to  wary  Separation  Deeds.]—&<?  Clif- 
ford j.  Clifford,  infra. 


IV.    SEPARATION  DEEDS  AED  AGREE- 
MENTS. 

Effect  of— Alimony  pendente  lite— Covenant 

not    to    molest]  —  See   Wood  v.   Wood,  ante, 
coL  901. 

Power  of  Court  to  vary,  after  Dissolution  of 
Marriage.] — In  June,  1881,  a  deed  of  separation 
was  executed  by  which  the  husband  agreed  to 
pay,  for  the  benefit  of  the  wife,  621.  a  year. 
Shortly  after  the  separation  she  committed 
adultery,  and  in  November,  1882,  a  decree  for 
dissolution  of  the  marriage  was  made  absolute. 
In  April,  1883,  the  husband  obtained  leave  to 
present  a  petition  to  vary  the  deed,  on  payment 
of  all  arrears  up  to  that  time  There  were  three 
children  of  the  marriage,  who  were  living  with 
the  husband.  A  petition  having  been  presented, 
the  matter  was  referred  to  the  registrar,  who  re- 
ported that  the  wife  had  no  means  of  support, 
and  that  the  husband's  income  was  about  270/.  a 
year.  Butt,  J.,  treated  the  case  as  one  of  alimony 
depending  mainly  on  the  husband's  means,  and 
refused  to  vary  the  deed.  But  held,  on  appeal, 
that  the  case  was  not  to  be  treated  as  one  of 
alimony,  but  one  in  which  the  court  had  a  dis- 
cretion as  to  the  amount  of  allowance  which 
ought  to  be  made  to  the  wife  under  all  the  cir- 
cumstances ;  and  that,  having  regard  to  the 
circumstances,  and  the  conduct  of  the  wife  in 
the  suit,  the  husband  ought  to  be  allowed  to 
retain  one-half  of  the  allowance  provided  by  the 
deed.  Clifford  v.  Clifford,  9  P.  D.  76  ;  53  L.  J., 
P.  68  ;  60  L.  T.  650  ;  32  W.  R.  747-C.  A. 

Effect  of  Reconciliation  upon.]— A  husband 
and  wife  when  before  the  Divorce  Court,  made 
an  agreement  in  writing  that  if  judicial  separa- 
tion were  decreed,  the  wife  should  be  permitted 
to  enjoy  during  her  life  certain  furniture  ;  but 
that  if  she  annoyed  her  husband  her  enjoyment 
of  it  should  cease.  Judicial  separation  was 
decreed,  and  the  wife  took  possession  of  the 
furniture.  The  husband  and  wife  afterwards 
resumed  cohabitation. — Held,  in  an  action  by 
the  wife  to  recover  the  furniture,  that  the  agree- 
ment came  to  an  end  when  cohabitation  was 
resumed  ;  and  that  as  the  wife  was  entitled  to 
the  furniture  during  separation  only,  she  took 
nothing  under  20  &  21  Vict.  c.  85,  s.  25,  which 
relates  to  property  acquired  by  the  wife  during 
separation.  Dictum  in  Handle  v.  Oovid  (8  E.  & 
B.  457)  questioned.  Nieol  v.  Meal,  31  Ch.  D. 
524  ;  55  L.  J.,  Ch.  437  ;  64  L.  T.  470  ;  34  W.  R. 
283  ;  50  J.  P.  468— C.  A. 

Eo  covenant  not  to  Sue  or  to  Condone— Judicial 
Separation.] — In  a  suit  by  the  husband  for  dis- 
solution on  the  ground  of  his  wife's  adultery,  the 
wife  in  her  answer  made  a  counter-charge  of 
desertion,  and  prayed  for  a  judicial  separation. 
It  appeared  that  the  husband  left  his  wife  in 
November,  1884,  and  in  January,  1887,  a  deed 
was  executed  by  which  the  wife  agreed  to  live 
apart  from  her  husband,  but  there  was  no  cove- 
nant not  to  sue  and  no  agreement  to  condone 
past  offences.  The  jury  found  all  the  issues  in 
favour  of  the  wife  : — Held,  that  the  deed  was 
not  a  bar  to  the  wife's  remedy,  and  that  she  was 
entitled  to  a  decree  of  judicial  separation. 
Moore  v.  Moore,  12  P.  D.  193  ;  66  L.  J.,  P.  104 ; 


J 


911 


HUSBAND    AND    WIFE. 


912 


67  L.  T.  668  ;  36  W.  R.  110 ;  61  J.  P.  632— 
Butt,  J. 

Action  by  Wife  on  Agreement — Maintenance 
— No  Trustees.] — See  Macgregor  v.  Macgregor, 
poet,  col.  916. 

Covenant  with  Trustees  to  Maintain  Children 
— Sight  of  Child  to  sue — Cestui  que  trust — 
Stranger  suing  on  Covenant]— To  entitle  a 
third  person,  not  named  as  a  party  to  a  con- 
tract, to  sue  either  of  the  contracting  parties, 
that  third  person  must  possess  an  actual  bene- 
ficial right  which  places  him  in  the  position  of 
cestui  que  trust  under  the  contract.  By  a  deed 
of  separation  between  husband  and  wife,  the 
husband  covenanted  with  the  trustees  to  pay  to 
them  an  annuity  for  the  use  of  the  wife  and  two 
eldest  daughters,  and  also  to  pay  to  the  trustees 
all  the  expenses  of  the  maintenance  and  educa- 
tion of  the  two  youngest  daughters,  provided 
that  the  trustees  permitted  them  to  go  to  such 
school  as  the  husband  should  direct,  and  pro- 
vided also  that  the  covenants  by  the  trustees 
were  duly  observed  and  performed :  provided 
also  that  the  two  youngest  daughters  should 
live  at  such  place  (being  reasonable  and  proper 
for  the  purpose)  as  the  husband  should  direct, 
and  should  be  maintained  and  educated  at  his 
expense,  the  husband  and  wife  to  have  all 
reasonable  access  to  them.  And  the  trustees 
covenanted  with  the  husband  that  they  would, 
during  the  continuance  of  the  separation,  keep 
him  indemnified  against  all  liability  for  the 
maintenance  of  the  wife '  and  two  eldest 
daughters,  and  against  all  molestation  by  them, 
and  that  the  wife  would  not  take  any  proceed- 
ings against  the  husband  for  alimony,  except  as 
aforesaid ;  and  that  they,  the  trustees,  would, 
on  the  husband  defraying  all  the  expenses  con- 
nected therewith,  carry  out  his  desires  as  to  the 
school  at  which  the  two  youngest  daughters 
should  be  educated,  and  the  place  at  which  they 
should  live,  and  would  permit  them,  if  they  so 
desired,  and  without  any  interference  on  the 
part  of  the  wife,  to  accept  any  invitation  of  the 
nusband  to  reside  with  him.  On  one  of  the  two 
youngest  daughters  subsequently  attaining  six- 
teen, the  husband  refused  any  longer  to  main- 
tain her,  whereupon  she  brought  an  action,  by 
her  next  friend,  against  the  husband  and  the 
trustees  of  the  separation  deed  to  enforce  the 
husband's  covenant,  the  trustees  having  refused 
to  allow  their  names  to  be  used  as  plaintiffs: — 
Held,  that  upon  the  construction  of  the  deed, 
the  plaintiff  was  not  in  the  position  of  cestui 
que  trust  under  the  covenant  so  as  to  entitle  her 
to  maintain  the  action,  but  liberty  was  given 
to  her,  under  the  Rules  of  the  Supreme  Court, 
1883,  Ord.  XVI.  r.  2,  to  amend  the  writ,  by , 
adding  the  trustees,  the  wife,  and  the  other 
daughters,  or  any  of  them,  as  plaintiffs.  Tottche 
v.  Metropolitan  Railway  Warehousing  Com- 
pany (6  L.  R.,  Ch.  671)  considered.  Gandy  v. 
Qandy,  SO  Ch.  D.  67  ;  54  L.  J.,  Ch.  1154  ;  53 
L.  T.  306  ;  33  W.  R.  803— C.  A. 

The  trustees  refusing  to  be  joined  as  co-plain- 
tiffs, the  statement  of  claim  was  amended  by 
making  the  wife  a  co-plaintiff : — Held,  that  she 
had  such  an  interest  as  entitled  her  to  sue,  the 
deed  being  an  arrangement  between  the  husband 
and  wife,  and  the  trustees  being  introduced  on 
her  behalf  in  order  to  get  over  the  difficulty  that 
the  husband  and  wife  could  not  at  law  sue  each 


other,  so  that  the  trustees  were  to  be  considered 
trustees  for  the  wife,  and  if  they  refused  to  sue, 
she  could  sue  in  equity.    lb. 

Party  taking  Advantage  of  and  Repudiating 
Deed.] — After  the  separation  deed  the  husband 
committed  adultery,  and  a  decree  was  made  for 
judicial  separation,  giving  the  custody  of  the  two 
youngest  daughters  to  the  wife.  After  this  the 
wife  applied  for  increased  alimony,  which  was 
granted  by  the  president,  but  his  decision  was 
reversed  on  appeal  (7  P.  D.  168),  both  the  argu- 
ments and  the  judgment  of  the  Court  of  Appeal 
proceeding  on  the  footing  (though  the  court  did 
not  expressly  decide  the  point)  that  the  husband 
remained  liable  under  the  deed  to  pay  for  the 
maintenance  and  education  of  the  two  youngest 
daughters.  He  now  contended  that  his  covenant 
was  put  an  end  to  by  the  custody  of  the  youngest 
daughters  being  given  to  his  wife  : — Held,  that 
he  was  not  at  liberty  to  retain  the  benefit  of  a 
decision  given  on  the  footing  that  his  liability 
under  the  covenant  continued,  and  at  the  same 
time  to  insist  that  his  liability  under  it  had 
determined,  and  the  appeal  was  ordered  to  stand 
over,  with  liberty  to  the  wife  to  apply  to  the 
Divorce  Court  for  increased  alimony,  if  she  should 
be  so  advised.    lb. 

Absolute  Covenant  to  pay  Annuity — Adultery 
by  Wife.] — In  a  separation  deed  a  covenant,  by 
which  the  husband  undertakes  to  pay  his  wife  an 
annuity  without  restricting  his  liability  to  suck 
time  as  she  shall  be  chaste,  is  good,  and  is  not 
against  public  policy,  and  the  covenant  remains 
in  force  and  the  annuity  continues  payable, 
although  the  wife  afterwards  commits  adultery. 
But,  semble,  per  Cotton,  L.  J.,  on  the  authority 
of  JSvan*  v.  Carrington  (2  De  G.  F.  &  J.  481). 
that  if  the  covenant  had  been  inserted  in  the 
separation  deed  with  the  intent  that  the  wife 
might  be  at  liberty  to  commit  adultery,  the 
deed  would  have  been  void.  Fearam  t. 
Aylenford  (Earl),  14  Q.  B.  D.  792  ;  54  L.  J.. 
Q.  B.  38 ;  62  L.  T.  954  ;  33  W.  R.  381  ;  49  J.  P. 
596— C.  A. 

Covenant  against  Molestation — Independent 
Covenants — Molestation,  what  is.] — Covenants 
in  a  separation  deed,  by  which  respectively  the 
husband  has  covenanted  to  pay  an  annuity  to  a 
trustee  for  the  wife,  and  the  trustee  has  cove- 
nanted that  the  wife  shall  not  molest  the  husband, 
must  be  construed  as  independent  covenants  in 
the  absence  of  any  express  terms  making  them 
dependent,  and  therefore  a  breach  of  the  covenant 
that  a  wife  shall  not  molest  the  husband,  is  not 
an  answer  to  an  action  for  the  annuity.  Neither 
adultery  alone  by  the  wife,  nor  adultery  by  her 
followed  by  the  birth  of  an  illegitimate  child,  is 
a  breach  of  a  covenant  in  a  separation  deed 
against  molestation  by  the  wife.    But,  semble, 
adultery  by  the  wife  followed  by  the  birth  of  an 
illegitimate  child  whom  she  puts  forward  as  the 
child  of  her  husband,  especially  if  this  is  done 
with  intent  to  claim  a  title  or  property  to  which 
the  legitimate  offspring  of  her  husband  would  be 
entitled,  is  evidence  of  a  breach  of  a  covenant 
against  molestation  by  her. — By  Brett,  M.R.,  in 
order  to  constitute  a  breach  of  the  covenant  in  a 
separation  deed  against  molestation  by  a  wife, 
some  act  must  be  done  by  her  or  by  her  authority 
with  intent  to  annoy  her  husband  and  which  is 
in  fact  an  annoyance  to  him,  or  at  least  some  act 


918 


HUSBAND    AND    WIFE. 


914 


must  be  done  by  her  or  by  her  authority  with  a 
knowledge  that  it  mast  of  itself  without  more 
annoy  her  husband,  or  annoy  a  husband  with 
reasonable  and  proper  feeling.    lb. 

Covenant  ai  to  Custody  of  Children— Access.] 
—By  a  deed  of  separation  made  in  1880  between 
H„  a  medical  officer  in  the  army,  and  his  wife, 
provision  was  made  as  to  the  custody  of  their 
four  children  (of  whom  the  eldest  was  eleven 
and  the  youngest  three  years  of  age)  during  the 
Approaching  absence  of  the  husband  in  India, 
titer  which  he  was  to  resume  the  entire  custody 
of  them,  but  he  covenanted  that  full  and  free 
liberty  of  access  to  them  should   be   always 
accorded  to  the  wife,  to  the  extent  at  least  of 
her  haring  the  opportunity  of  spending  one  day 
in  every  fortnight  with  them.    In  1884  he  was 
ordered  to  Egypt  and  proposed  to  take  the  first 
and  third  of  the  children  with  him.    Mrs.  H. 
applied  for  an  injunction  to  restrain  him  from 
doing  so : — Held,  that  the  covenant  did  not  bind 
H.  to  keep  the  children  in  a  place  where  Mrs.  H. 
could  conveniently  have  access  to  them,  and  did 
not  preclude  him  from  taking  them  with  him  to 
any  place  where  he  might  be  ordered  in   the 
coarse  of  his  duties,  and  that  the  injunction  must 
be  dissolved,  there  being  no  case  made  that  he 
was  removing  them  for  the  purpose  of  prevent- 
ing Mrs.  H.  from  having  access  to  them.    Hunt 
t.  Hunt,  28  Ch.  D.  606 ;  52  L.  T.  302  ;  33  W.  B. 
157— C.  A. 

Meet  of  on  Beotitation  of  Conjugal  Sights.] 
— See  ante,  col.  889. 


Executor  of  Wife— Retainer  for  Funeral  Ex. 
ponies—  Estate  insufficient.  ]— A  husband,  execu- 
tor of  his  wife's  will  made  under  a  testamentary 
power  of  appointment,  is  entitled  to  retain  out 
of  her  estate  the  expenses  of  her  funeral  though 
such  estate  was  insufficient  for  creditors,  and 
her  will  did  not  contain  any  charge  of  debts 
and  funeral  expenses.  MoMyn,  In  re,  Light- 
bourn  v.  NcMyn,  33  Ch.  D.  573  ;  55  L.  J.,  Ch. 
845  ;  55  L.  T.  884  ;  35  W.  R.  179— Chitty,  J. 

Liability  for  Maintenance  of  Wife —In  Case  of 
Divorce.] — See  ante,  cols.  901  et  teg. 

On  Desertion  of  Wife.] — See  post,  cols. 

933,  934. 


In  ease  of  Separation  Agreement.] — See 


V.  MUSBAVD'S  SIGHTS  AMD  LIABILITIES. 

Chattels  Seal  of  Wife  not  vested  in  Possession 
taring  Coverture.]— A  wife  entitled  to  a  term, 
subject  to  a  life  estate  therein,  predeceased  her 
husband  during  the  subsistence  of  the  life  estate: 
—Held,  that  it  was  not  necessary  for  the  husband 
to  take  out  letters  of  administration  to  her  in 
order  to  complete  his  title  to  the  leaseholds. 
Bellamy,  In  re,  Elder  v.  Pearson,  25  Ch.  D. 
620 ;  53  L.  J.,  Ch.  174 ;  49  L.  T.  708  ;  32  W.  R. 
358-Kay,  J. 

Partial   Intestaoy — Devolution   of  Separate 

Ittate.]— The  Married  Women's  Property  Act, 
1882,  does  not  affect  the  right  of  the  husband  to 
raoceed,  on  the  death  of  the  wife,  to  her  undis- 
posed-of separate  personalty.  Lambert,  In  re, 
Stanton  v.  Lambert,  39  Ch'  D.  626  ;  57  L.  J., 
Ch.  927  ;  69  L.  T.  429— Stirling,  J. 

A  married  woman  who  died  on  the  13th  of 
September,  1887,  leaving  a  husband  and  three 
children  surviving,  made  a  will  on  the  7th  of 
September,  1887,  in  exercise  of  a  power  of  ap- 
pointment, and  appointed  executors.  The  will 
oid  not  purport  to  dispose  of  any  other  property. 
At  her  death  she  was  entitled  to  separate  per- 
gonal estate  not  included  in  the  power.  Probate 
of  the  will  was  granted  under  the  Amended  Pro- 
bate Bales  of  April,  1887,  in  the  ordinary  form 
without  any  exception  or  limitation  : — Held, 
that  the  executors  were  trustees  for  the  husband 
of  the  undisposed-of  property,  and  that  the  pro- 
bate  doty  and  the  costs  connected  with  probate  | 
ought  to  be  apportioned  rateably  between  the 
appointed  and  the  undisposed-of  property.    lb.  • 


McGregor  v.  McGregor,  post,  col.  916. 

Order    obtained   by  Guardians.]  —  See 

Pooe  Law  (Maintenance). 

Liability  for  Necessaries — Wife  living  apart 
from  Husband — Adultery — Connivance.] — In  an 
action  against  a  husband  for  necessaries  supplied 
to  his  wife  it  appeared  that  the  wife  had  com- 
;  mitted  adultery  with  the  connivance  of  her 
husband,  and  the  husband  subsequently  turned 
her  out  of  doors ;  that  she  had  no  means  of 
support ;  and  that  the  plaintiff  supplied  her 
with  the  necessaries  in  question  while  she  was 
living  separate  from  her  husband  : — Held,  that 
the  husband  was  liable.  Wilson  v.  Glossop,  20 
Q.  B.  D.  354  ;  57  L.  J.,  Q.  B.  161  ;  58  L.  T.  707  ; 
36  W.  R.  296  ;  52  J.  P.  246— C.  A. 

Liability  for  Aots  of  Wife— Agenoy.]— Where 
a  husband  and  wife  were  living  together,  and 
furniture  was  supplied  for,  and  work  done  at,  the 
house  on  the  order  of  the  wife,  but  the  husband 
took  part  in  making  selections,  and  giving  direc- 
tions as  to  the  execution  of  the  orders  : — Held, 
that  the  husband  was  liable  to  pay  for  the  goods 
and  work,  although  he  had  expressly  prohibited 
her  from  pledging  his  credit,  and  they  had 
agreed  together  that  6he  should  pay  for  the 
goods  and  work.  Jetley  v.  Hill,  1  C.  &  E.  23!> 
—Pollock,  B. 

Torts  committed  by  Wife  after  Marriage.] — 

The  Married  Women's  Property  Act,  1882,  does 
not  abolish  the  liability  of  a  husband  for  his 
wife's  wrongful  acts,  and  the  plaintiff  may  sue 
the  husband  and  wife  jointly  or  the  wife  alone 
for  wrongs  committed  by  her  after  the  marriage. 
Seroka  v.  Kattenburg,  17  Q.  B.  D.  177  ;  55  L.  J., 
Q.  B.  375  ;  54  L.  T.  649  ;  34  W.  R.  543— D. 

Wife's  Breaches  of  Trust.]  —  A  husband's 
liability  for  his  wife's  breaches  of  trust  extends 
to  breaches  of  trust  arising  from  negligence,  and 
is  not  confined  to  losses  caused  by  her  active 
misconduct.  Bahin  v.  Hughes,  31  Ch.  D.  390  ; 
55  L.  J..  Ch.  472  ;  54  L.  T.  188  ;  34  W.  R.  311— 
C.A. 

Money  paid  by  Husband  for  Wife  after  Mar- 
riage.]— Before  the  coming  into  operation  of  the 
Married  Women's  Property  Act,  1882,  a  husband 
in  a  court  of  equity  might  make  his  wife  a  de- 
fendant to  a  suit  respecting  her  separate  estate, 
and  might  obtain  a  decree  against  her  for  breach 
of  any  contract,  whereby  she  had  intended  to  bind 
the  same,  and  that  statute  has  not  deprived  a 


L.  .  . 


915 


HUSBAND    AND    WIFE. 


916 


husband  of  any  right  or  remedy,  to  which,  if  it 
had  not  been  passed,  he  would  have  been  en- 
titled as  againBt  his  wife  in  respect  of  her  sepa- 
rate estate  :  and  therefore  it  is  now  competent 
to  a  husband  to  maintain  an  action  against  his 
wife,  and  to  charge  her  separate  estate  for 
money  lent  by  him  to  her  after  their  marriage, 
and  for  money  paid  by  him  for  her  after  their 
marriage  at  her  request  made  before  or  after 
their  marriage.  Butler  v.  Butler,  16  Q.  B.  D. 
374 ;  55  L.  J.,  Q.  B.  55  ;  54  L.  T.  591  ;  34  W.  R. 
132— C.  A. 

Liability  for  Costs— Action  by  Executrix  and 
Husband — Liquidation.] — A  married  woman,  be- 
fore the  Married  Women's  Property  Act,  1882, 
brought  an  action  as  executrix,  and  her  husband 
was  joined  as  co-plaintiff.  While  the  action 
stood  for  trial,  the  husband  filed  a  petition  for 
liquidation,  and  obtained  his  discharge.  The 
action  was  subsequently  dismissed  with  costs  on 
default  of  appearance  by  the  plaintiffs  : — Held, 
that  the  husband  was  not  exonerated  by  his  dis- 
charge in  the  liquidation  from  his  liability  to 
have  judgment  given  against  him  with  costs,  as 
the  action  was  not  rendered  defective  by  his 
going  into  liquidation.  Vint  v.  Hudspeth,  30 
Ch.  D.  24  ;  54  L.  J.,  Ch.  844  ;  52  L.  T.  744  ;  33 
W.  K.  738— C.  A. 

Custody  of  Children.]— See  Infant. 


VI.    CONTRACTS    BETWEEN    HT/8BAND 
AVD    WIFE. 

Wife's  Conveyance— Speciflo  Performance  of] 
— A  married  woman  was  entitled  by  an  ante- 
nuptial settlement  to  a  jointure  rent-charge  after 
her  husband '8  death  secured  upon  his  real  estates 
in  Ireland.  The  wife  having  left  him,  the  hus- 
band commenced  a  suit  for  restitution  of  con- 
jugal rights  ;  with  a  view  to  a  compromise  by  an 
agreement  for  separation  a  document  was  drawn 
up  and  signed  by  the  husband,  which  stipulated 
that  the  wife  should  release  part  of  her  jointure. 
The  wife  signed  this  document  with  a  qualifica- 
tion that  no  further  steps  were  to  be  taken  in  the 
matrimonial  suit,  but  it  was  not  stayed  or  dis- 
missed. A  deed  was  prepared  to  carry  out  the 
terms  of  the  compromise  and  was  executed  by 
the  husband,  but  the  wife  refused  to  execute  it 
or  to  return  to  her  husband,  and  the  husband 
afterwards  died  : — Held,  that  the  wife  was  not, 
when  she  signed  the  document,  in  all  respects  in 
the  same  position  as  a  feme  sole,  and  that  even  if 
any  final  agreement  had  been  come  to  she  would 
not  have  been  bound  by  it,  there  having  been  no 
acknowledgment  as  required  by  4  &  5  Will.  4, 
c.  92,  88. 68, 71  ;  and  that  specific  performance  of 
the  agreement  to  release  her  jointure  could  not  be 
decreed  against  her.  Hunt  v.  Hunt  (4  D.,  F.  &  J. 
221  ;  and  Besant  v.  Wood  (12  Ch.  D.  606),  com- 
mented on  by  the  Earl  of  Selborne,  L.  C.  Cdkill 
v.  Cahill,  8  App.  Cas.  420  ;  49  L.  T.  605  ;  31  W.  R. 
861— H.  L.  (Ir.) 

Power  of  Wile  to  contract  without  Interven- 
tion of  Trustee.] — A  husband  and  wife  having 
taken  out  cross-summonses  against  each  other 
for  assaults,  entered  into  a  verbal  agreement 
with  each  other  to  withdraw  the  summonses  and 
to  live  apart,  the  husband  allowing  the  wife  a 


[  weekly  sum  for  maintenance,  and  the  wife  in- 
demnifying the  husband  against  any  debts  she 
might  contract.  An  action  having  been  brought 
in  the  county  court  by  the  wife  against  her 
husband  for  six  weeks'  arrears  of  maintenance 
under  the  agreement : — Held,  that  the  husband 
and  wife  had  power  to  contract,  without  the 
intervention  of  a  trustee,  to  live  apart,  in  con- 
sideration of  their  agreeing  not  to  take  legal 
proceedings  against  one  another,  and  that  the 
action  was  maintainable.  McGregor  v.  Mc- 
Gregor, 21  Q.  B.  D.  424  ;  57  L.  J.,  Q,  B.  591 ; 
37  W.  R  45  ;  52  J.  P.  772— C.  A.  Affirming  58 
L.  T.  227— D. 


VII.    GIFTS  TO  HU8BAHB  AKD  WIFE. 

Unity  of  Person  of  Husband  and  Wife.]— The 
rule  of  construction  whereby,  under  a  girt  to  s 
husband  and  wife  and  a  third  person,  the  hus- 
band and  wife  take  only  one  moiety  between 
them,  has  not  been  altered  by  the  Married 
Women's  Property  Act,  1882.  A^testator  by  his 
will  made  in  1887,  directed  that  a  share  of  his 
;  residuary  estate  should  be  divided  between  his 
"  sister  M.  B.,  D.  B.,  her  husband,  and  H.  B.f  her 
step-daughter,  in  equal  parts."  M.  B.  and  D.  B. 
were  married  previously  to  the  commencement 
of  the  Married  Women's  Property  Act,  1882  :— 
Held,  that  M.  B.  and  D.  B.  each  took  one-fourth, 
and  H.  B.  one-half  of  the  share,  the  one-fourth 
of  M.  B.  being  her  separate  property  according 
to  the  act.  Jupp,  In  re,  Jupp  v.  Buekwell,  39 
Ch.  D.  148  ;  57  L.  J.,  Ch.  774  ;  59  L.  T.  129 ;  36 
W.  R.  712— Kay,  J. 

A  testatrix,  by  her  will,  dated  in  1880.  gave  her 
residuary  personal  estate  "  to  C.  J.  M.,  and  J.  H. 
and  E.  his  wife,"  to  and  for  their  own  use  and 
benefit  absolutely,  and  appointed  C.  J.  M.,  and 
J.  H.  and  £.  U.  his  wife,  her  executors.  The 
testatrix  died  in  1883,  after  the  commencement 
of  the  Married  Women's  Property  Act,  1881 
J.  H.  and  E.  H.  were  married  in  1864  : — Held, 
that  as  the  will  was  made  before  the  Married 
Women's  Property  Act  came  into  operation,  it 
must  be  construed  in  accordance  with  the  law 
at  that  time,  and  that  the  three  residuary 
legatees  were  entitled  to  the  personal  estate  as 
joint  tenants,  C.  J.  M.  taking  one  moiety,  and 
J.  H.  and  E.  H.,  his  wife,  taking  the  other 
moiety  between  them,  J.  H.  in  his  own  right, 
and  his  wife  for  her  separate  use.  March,  In  re, 
Mander  v.  Harris,  27  Ch.  D.  166  ;  54  L.  J.,  Ch. 
143  ;  51  L.  T.  380  ;  32  W.  B.  241— C.  A. 

How  the  court  would  have  construed  the  gift 
if  the  will  bad  been  made  after  the  Married 
Women's  Property  Act,  1882,  came  into  opera- 
tion, quaere.    lb. 

Ante-nuptial  Parol  Agreement.} — By  a  parol 
ante-nuptial  agreement  in  1879  it  was  agreed 
that  the  intended  wife  should  retain  1,4002.  as 
her  separate  property.  The  money  was  paid  into 
a  bank  in  her  maiden  name,  and  for  two  years 
after  the  marriage  she  received  the  interest  with 
her  husband's  acquiescence,  and  she  afterwardi 
drew  out  the  principal.  The  money  was  claimed 
by  the  trustee  in  liquidation  of  the  husband : — 
Held,  that  it  was  unnecessary  to  decide  whether 
s.  4  of  the  Statute  of  Frauds,  or  the  doctrine  of 
part  performance,  applied  to  the  case,  because 
the  transaction  amounted  to  a  gift  by  the  has- 


917 


HUSBAND    AND    WIFE. 


918 


band  to  the  wife  of  the  money,  which  thus 
became  her  separate  property,  and  therefore  the 
husband  was  a  trustee  for  the  wife,  and  his 
trustee  in  liquidation  was  not  entitled  to  the 
money.  Whitehead,  In  re,  Whitehead,  Ex  parte, 
14  Q.  B.  D.  419  ;  54  L.  J.,  Q.  B.  240 ;  52  L.  T. 
597 ;  33  W.  R.  471  ;  49  J.  P.  405— C.  A. 

Separate  Estate— Beoeipt  by  Husband — Pre- 
fmption  of  Gift.]— A  testator,  who  died  in  1860, 
bequeathed  a  portion  of  the  residue  of  his  per- 
sonal estate  to  his  daughter,  a  married  woman, 
for  her  separate  use.  Shares  in  certain  com- 
panies were  allotted  to  her  in  respect  of  this 
bequest,  which  shares  were  transferred  by  the 
executor  of  the  will  into  the  name  of  her  hus- 
band. In  1862  a  deed  of  release  was  given  to 
the  executor,  which  was  executed  both  by  the 
husband  and  the  wife.  The  testator's  daughter 
and  her  husband  lived  together  on  affectionate 
terms  until  1884,  when  the  husband  died,  having 
by  his  will  bequeathed  to  his  wife  a  legacy,  and 
given  her  a  life  interest  in  all  his  property. 
During  the  whole  of  the  time  from  1860  to  1884 
the  husband  received  the  dividends  on  the 
shares.  He  kept  very  careful  books  of  account, 
from  which  it  appeared  that  he  did  not  pay  the 
dividends  to  his  wife,  although  he  did  pay  to 
her  the  dividends  of  certain  other  property, 
which  also  belonged  tor  her  for  her  separate  use. 
Before  1862  the  shares  were  always  referred  to 
in  the  books  as  having  originally  belonged  to  the 
wife,  but  this  mode  of  reference  was  discon- 
tinued after  that  date.  The  wife  died  in  1884, 
a  few  days  after  her  husband,  and  the  question 
was,  whether  the  shares,  which  still  remained  in 
specie,  formed  part  of  her  estate  or  of  that  of 
her  husband  :— Held,  that  the  mere  transfer  of 
the  shares  into  the  name  of  the  husband  was  not 
per  se  evidence  of  a  gift  thereof  to  him ;  that 
the  burden  lay  upon  those  who  represented  him 
to  show  that  the  wife  had  given  him  the  shares, 
which  burden  they  had  not  discharged ;  and 
that,  therefore,  the  shares  must  be  treated  as 
forming  part  of  the  wife's  estate.  Curtis,  In  re, 
Haws  y.  Curtis,  52  L.  T.  244— Kay,  J. 

By  the  law  of  Scotland,  as  well  as  by  that  of 
England,  a  married  woman  may  make  an  effec- 
tual gift  of  her  separate  income  to  her  husband ; 
with  this  difference,  that  by  Scotch  law  she  has 
the  privilege  of  revoking"  the  donation,  even 
after  her  husband's  death,  and  reclaiming  the 
subject  of  her  gift  in  so  far  as  it  had  not  been 
consumed.  The  same  circumstances  which  are 
in  England  held  to  imply  donations  between 
bosband  and  wife  are  sufficient  to  sustain  a 
similar  inference  in  Scotland.  Edtoard  v.  Cheyne, 
13  App.  Gas.  385— H.  L.  (So.) 


Till.    WITTS  PROPERTY,  BIGHTS  AJTD 
LIABILITIES. 

1.    EQUITY  TO  A  SETTLEMENT. 

Mt  of  Husband  to  Testator— Wife's  share 
hi  lesUns  Deduction  of  Debt  from  Wife's 
•atfi.] — A  testator  bequeathed  to  his  married 
daughter  after  the  death  of  his  wife,  a  share  of 
the  residue  of  his  real  and  personal  estate. 
The  daughter's  husband  owed  the  testator  725/., 
a  turn  equal  to  or  in  excess  of  her  share  of 
residue.    There  were  six  children  of  the  mar- 


riage. The  daughter  had  about  702.  a  year 
derived  from  an  uncle,  for  her  life,  and  remain- 
der to  her  children,  and  her  husband  had  no 
private  means,  and  made  only  some  60/.  a 
year  by  his  business.  The  testator  left  six 
children  him  surviving.  He  died  in  1877:— 
Held,  the  case  not  coming  within  the  Married 
Women's  Property  Act,  1882,  that  although 
the  executors  had  a  right  to  set  off  the  debt 
due  from  the  husband  against  the  share  given 
to  the  wife,  yet  as  the  claim  of  the  husband,  if 
there  had  been  no  debt,  would  have  been  subject 
to  the  wife's  equity  to  a  settlement,  which  would 
therefore  have  been  prior  to  the  husband's  claim, 
the  wife's  equity  was  also  prior  to  the  executors' 
right  of  retainer.  Knight  v.  Knight  (18  L.  R., 
Eq.  487)  distinguished.  Briant,  In  re,  Poulter 
v.  Sliackel,  39  Ch.  D.  471 ;  67  L.  J.,  Ch.  953  ;  59 
L.  T.  215  ;  36  W.  R.  825— Kay,  J. 

Desertion— Sale  of  Leaseholds.]— A  husband 
entitled  to  leaseholds  in  right  of  his  wife 
deserted  her  and  their  children,  and  for  eight 
years  contributed  nothing  towards  her  or  their 
support,  except  the  rents  of  the  leaseholds. 
During  the  desertion  the  leaseholds  were  sold  by 
the  wife  for  250Z.  to  a  purchaser,  who  expended 
the  greater  part  of  the  proceeds  upon  the  main- 
tenance of  the  wife  and  children.  In  an  action 
by  the  husband  against  the  wife  and  the  pur- 
chaser to  set  aside  the  sale  and  recover  the  lease- 
holds or  the  proceeds  : — Held,  that,  under  her 
equity  to  a  settlement,  the  wife  was  entitled  to 
have  the  entire  proceeds  of  the  sale  secured  to 
herself,  and  such  proceeds  having  practically 
been  expended  for  her  benefit,  the  action  must 
be  dismissed  with  costs.  Boxall  v.  Boxall,  27 
Ch.  D.  220  ;  53  L.  J.,  Ch.  838  ;  51  L.  T.  771  ;  32 
W.  R.  896— Kay,  J. 

Amount  to  bo  Settled— Xiseonduot  of  Hus- 
band.]— A  wife  was  entitled  to  about  1,500Z. 
The  husband  had  disregarded  an  order  of  the 
court  for  restitution  of  conjugal  rights,  and 
stated  that  he  and  his  wife  should  not  again  live 
together  : — Held,  that  the  conduct  of  the  husband 
amounted  to  aggravated  misconduct,  and  that 
under  all  the  circumstances  of  the  case  the 
whole  fund  was  to  be  settled  on  the  wife  and 
children.  Bcid  v.  Beid,  33  Ch.  D.  220  ;  55 
L.  J.,  Ch.  756  ;  55  L.  T.  153  ;  34  W.  R.  715— 
Stirling,  J.  See  also  Fowle  v.  Draycott,  post, 
coL  936. 


Bankruptcy  of  Husband.] — In  an  action 


by  a  married  woman  for  her  equity  to  a  settle- 
ment, where  the  husband  was  an  undischarged 
bankrupt,  but  was  living  with  his  wife,  and  con- 
tributed something  out  of  his  earnings  to  her 
support,  the  court  directed  two-thirds  only  of 
the  wife's  fund  to  be  settled  upon  her.  Callow 
v.  Callow,  55  L.  T.  154— Stirling,  J.  See  Beau- 
pr&s  Trust*,  In  re,  post,  col.  924. 

Domieil — Change  by  Residenoe — Reverter  to 
Bomieil  of  Origin.] — In  1855  a  domiciled  Manx- 
man came  to  England  and  married  an  E  nglish- 
woman,  and  resided  in  England  for  twenty 
years.  At  the  date  of  the  marriage  the  w  ife  was 
entitled  to  a  vested  reversionary  interest  in  a 
legacy  which  fell  into  possession  in  188  5.  In 
1875  the  husband  and  wife  returned  to  the  Isle 
of  Man,  where  the  husband  carried  on  busi  ness 
till  1878,  when  he  became  insolvent,  and  execu  ted 


919 


HUSBAND    AND    WIFE. 


920 


a  deed  of  assignment  of  all  his  property,  including 
his  wife's  interest  in  the  legacy,  for  the  benefit 
of  his  creditors.  In  18S0  the  parties  returned 
to  England,  where  they  resided  till  1882,  when 
the  husband  went  to  Mexico  to  seek  employ- 
ment. The  doctrine  of  a  wife's  equity  to  a 
settlement  is  unknown  to  Manx  law: — Held, 
that  the  Manx  domicil  of  the  husband  which 
had  been  lost  by  the  twenty  years*  residence  in 
England,  reverted  on  his  return  to  the  Isle  of 
Man,  that  nothing  happened  afterwards  to  re- 
establish the  English  domicil,  and  that  as  the 
domicil  was  therefore  Manx,  the  wife's  equity  to 
a  settlement  could  not  be  asserted,  Marsland, 
In  re,  55  L.  J.,  Ch.  581  ;  54  L.  T.  635  ;  34  W.  B. 
540— Kay,  J. 

2.  DOWER. 

Interest  in  Land— Gift  to  Wife  of  Inoomo  of 
Proceeds  of  Land.] — A  testator  having  entered 
into  a  contract  for  the  sale  of  real  estate  to  a 
purchaser,  died  before  completion.  By  his  will 
he  devised  all  his  real  estate  to  trustees  for  sale, 
and  of  the  proceeds  to  invest  1,000/.  and  pay 
the  income  thereof  to  his  widow.  He  then 
gave  various  other  legacies  out  of  the  proceeds, 
but  made  no  disposition  of  the  ultimate  re- 
sidue. After  the  testator's  death  it  was  found 
that  no  title  could  be  made  to  a  material  part 
of  the  property  comprised  in  the  contract,  and 
thereupon  the  trustees  of  the  will  rescinded  the 
contract : — Held,  that  the  gift  to  the  widow  of 
the  income  of  part  of  the  proceeds  of  the  real 
estate  was  a  gift  to  her  of  an  •'  interest  in  land  " 
within  s.  9  of  the  Dower  Act,  3  &  4  Will.  4, 
c.  105,  and  that,  therefore,  she  was  not  entitled 
to  dower  out  of  any  part  of  her  husband's  estate. 
Thomas,  In  re,  Tfiomas  v.  Howell,  34  Ch.  D.  166  ; 
56  L.  J.,  Ch.  9  ;  55  L.  T.  629— Kay,  J. 

Marriage  Settlement — Provision  for  intended 
Wife  and  Issue.] — In  an  ante- nuptial  settlement 
any  provision  for  the  intended  wife  in  the  event 
of  her  surviving  her  husband,  will  bar  her  dower, ' 
if  such  intention  be  expressed  or  appear  clearly 
from  the  construction  of  the  deed.  But  pro- 
visions for  the  wife  to  her  separate  use  for  life, 
for  the  maintenance  of  herself  and  her  children, 
in  the  event  of  the  husband  failing  in  his 
credit  or  becoming  a  bankrupt  or  insolvent,  and 
inter  alia  a  proviso  that  the  trustees  should, 
whenever  they  might  think  fit  or  expedient, 
that  is  to  say — in  the  event  of  the  husband  I 
becoming  embarrassed  in  his  circumstances,  or 
there  should  arise  some  good  and  sufficient 
reason  therefor,  so  as  to  render  a  sale  consistent 
with,  and  in  aid  of,  the  trusts  of  the  settlement, 
and  provision  for  the  wife  and  the  issue  of  the 
marriage,  realize  out  of  the  property  of  the 
husband  a  bond  for  1,000/.,  executed  to  them, 
and  invest  the  proceeds  for  the  wife  to  her 
separate  use  for  life,  and  after  her  death  for  the 
issue  of  the  marriage,  provided  that  the  amount 
of  the  bond  should  not  be  levied  after  the 
husband's  death  without  the  consent  in  writing 
of  the  wife  : — Held,  not  a  bar  to  the  wife's  right 
to  dower.  O'Rorke  v.  O'Rorke,  17  L.  R.,  Ir. 
153— M.  R. 


3.    POLICIES  OF  INSURANCE. 

For  "Wife  and  Children  "—Joint  Tenancy.] 
— A    policy  was   taken   out    on    the    life    of 


folly  Paid  np.  ] — The  defendant  effected  a  policy 

on  his  life  for  the  benefit  of   his   wife  and 

children  under  s.  10  of  the  Married  Women's 

Property  Act,  1870.    He  became  bankrupt  and 

mentally  deranged,  and  was  unable  to  pay  the 

premiums.      By    the    rules   of    the   insurance 

society  the  policy  could   be  exchanged  for  a 

fully  paid-up  policy  of  smaller  value,  and  tons 

preserved   from    lapsing.    The  wife  and  only 

child  of  the   defendant   brought    this  action. 

claiming  the  appointment  of  a  trustee  of  the 

policy,  and  that  such  trustee  might  be  authorised 

i  to  exchange  the  policy  for  one  fully  paid  up  :— 

|  Held,  that  the  court  under  its  general  jurisdic- 

I  tion  had  power  to  appoint  two  trustees ;  and 

i  judgment  was  given  to  that  effect,  and  otherwise 

i  as  claimed.    Schultze  v.  Schultze,  56  L.  J.,  Ch. 

-  356  ;  56  L.  T.  231— Stirling,  J. 

Policy  in  Wife's  Name— Voluntary  Settlement 
;  of— Payment  of  Premiums.] — On  5th  November, 
j  1844,    a   policy  of  insurance  for   2,O00Z.  was 
1  effected  upon  the  life  and  in  the  name  of  B.  the 
wife  of  A.    By  a  post-nuptial  settlement  dated 
1 27th   November,   1844,    reciting    that    B.  was 
desirous  of  making  provision  for  her  husband 
I  and  children,  and  that  A.  had  agreed  to  join  in 
I  the  deed  for  the  purpose  of  assuring  "  all  his 
interest,  if  any,"  in  the  policy,  A.  and  B.  as- 
signed to  C.  and  D.  the  policy  and  all  sums  pay- 
.  able  thereunder  upon  trust  to  invest  the  same 
and  pay  the  income  to  A.  and  his  assigns  during 
,  his  life  and  after  his  decease  to  divide  the  trust 
funds  equally  among  the  children  of  A.  and  B. 
The  settlement  contained  no  power  of  revocation. 
A.  predeceased  his  wife,  having  paid  all  pre- 
miums during  his  lifetime.    Upon  the  death  of 
B.,    the   question    arose    whether    the   policy 
moneys  were  subject  to  the  trusts  declared  by 
the  settlement : — Held,  that  the  policy  was  in- 
tended by  the  husband  to  be  and  was  the  sepa- 
rate property  of  the  wife  at  the  date  of  settle- 
ment, in  which  the  husband  concurred  only  for 
conformity  and  to  bind  such  interest,  if  any,  as 
he  had  ;  that  the  settlement  was  valid  and  that 
!  the  policy  moneys  were  bound  by  the  trusts  of 
the  settlement.      Winn,  In  re,  Reed  v.  THs*, 

|  57  L.  T.  382— Kay,  J. 

i 

For  Benefit  of  Wife— Contingent  Interest  of 
Husband— Withdrawal.] — A  policy  of  insurance 
on  the  life  of  a  husband  for  the  benefit  of  hi* 


the  assured  for  the  benefit  of  his  wife  and 
children  : — Held,  that  his  widow  and  children 
took  as  joint  tenants.  Mellor's  Policy  Trusts, 
In  re  (7  Ch.  D.  200),  explained  ;  Adam's  Policy 
Trusts,  In  re  (23  Ch.  D.  525),  dissented  from. 
Seyton,  In  re,  Seyton  v.  Satterthwaitc,  34  Ch.  D. 
511  ;  56  L.  J.,  Ch.  775  ;  56  L.  T.  479  ;  35  W.  B. 
373— North,  J. 

Appointment  of  Trustees — Petition.]— A  peti- 
tion (presented  since  the  coming  into  operation 
of  the  Married  Women's  Property  Act,  1882), 
for  the  appointment  of  trustees  of  the  proceeds 
of  a  life  policy  effected  by  a  husband,  under  the 
provisions  of  the  Married  Women's  Property  Act, 
1870,  for  the  benefit  of  his  wife  and  children, 
ought  to  be  entitled  in  the  matter  of  the  act  of 
1882.  Sovtar's  Policy  Trust,  In  re,  26  Ch.  D. 
236;  54  L.  J.,  Ch.  256;  32  W.  R.  701-  | 
Pearson,  J. 


Direction  to  Exohange  Policy  for  0ns 


921 


HUSBAND    AND    WIFE. 


922 


wife  was,  in  1876,  effected  with  an  insurance 
company  which  carried  on  business  at  New 
York,  through  their  branch  office  in  London. 
The  application  for  the  policy  was  made  by  him 
oo  behalf  of  his  wife.  The  premiums  were  made 
payable  in  London.  By  the  policy  the  company 
promised  to  pay  the  amount  assured  to  the  wife 
for  her  sole  use,  if  living,  and,  if  she  were  not 
lmng,  to  the  children  of  the  husband,  or,  if 
there  should  be  no  sach  children,  to  the  executors 
or  assigns  of  the  husband,  at  the  London  office. 
The  policy  also  provided  that,  on  the  completion 
of  a  period  of  ten  years  from  its  issue,  provided 
it  should  not  have  been  previously  terminated 
bj  lapse  or  death,  the  legal  owner  should  have 
the  option  of  withdrawing  the  accumulated 
reserve  and  surplus  appropriated  by  the  com- 
pany to  the  policy.  The  husband  paid  the  pre- 
miums until  July,  1883,  when  he  filed  a  liquida- 
tion petition  under  the  Bankruptcy  Act,  1869. 
in  1884  he  obtained  his  discharge.  After  1883 
the  wife  paid  the  premiums  out  of  her  separate 
estate.  In  1886  the  wife  exercised  the  right  of 
withdrawal,  and  the  company  paid  2,9592.  in 
respect  of  the  policy  : — Held,  that,  even  if  the 
sum  thus  paid  did  not  by  virtue  of  the  policy 
belong  to  the  wife  for  her  separate  use,  the 
husband's  contingent  interest  in  it  at  the  time 
when  he  obtained  his  discharge  was  a  mere  pos- 
sibility, and  that,  consequently,  it  did  not  pass 
to  the  trustee  in  the  liquidation.  Dever,  Ex 
p*rte,  Suse,  In  re,  18  Q.  B.  D.  660 ;  66  L.  J., 
Q.  B.  552— C.  A. 


4.   SEPARATE  ESTATE. 

a.  What  ia — Creation  o£ 

Freeholds — Agreement   signed   by   Husband 

<arj.]— In  order  that  the  fee  simple  of  an  in- 
tended wife  may  be  affected  with  a  trust  for  her 
separate  use  by  an  agreement  made  between  the 
intended  husband  and  wife  before  marriage,  the 
agreement  must  be  in  writing  and  signed  by  the 
▼tfe  as  well  as  by  the  husband ;  if  it  is  signed 
ty  the  husband  alone,  it  is,  owing  to  the  Statute 
of  Frauds,  s.  7,  invalid  as  a  declaration  of  trust 
for  separate  use  as  to  the  fee  simple,  a  husband 
having  in  his  wife's  land  only  an  estate  for  the 
joint  fives  of  himself  and  his  wife  with  a  possible 
state  by  the  curtesy.  Dye  v.  Dye,  13  Q.  B.  D. 
147 ;  53  L.  J.,  Q.  B.  442  ;  51  L.  T.  145  ;  33  W.  R. 
3-C.A. 

Judicial  Separation— Effect  of— Property  sub- 
tHiently  acquired. J — A  wife  who  has  obtained 
a  decree  for  judicial  separation  is  to  be  con- 
sidered at  a  feme  sole  with  respect  to  such  pro- 
perty only  as  she  may  acquire  or  which  may 
come  to  or  devolve  upon  her  after  the  decree : 
i.  25  of  the  Divorce  ana  Matrimonial  Causes  Act, 
1857  (20  Jt  21  Vict.  a  86),  not  applying  to  pro- 
perty to  which  the  wife  was  entitled  in  posses- 
ion at  the  date  of  the  decree.  Cooke  v.  Fuller 
(36  Beav.  99)  distinguished.  Wdite  v.  Morland, 
»  Ch.  D.  136  ;  57  L.  J.,  Ch.  655  ;  59  L.  T.  185  ; 
36  W.  R.  484— C.  A. 

wife  Trading  Separately  from  Husband — 
^•Mial  Fewer  of  Appointment.] — By  the 
wied  Women's  Property  Act,  1882  (45  k  46 
»fct  c  75),  s.  1,  sub-8.  6,  "Every  married 
*oman  carrying  on  a  trade  separately  from  her 


husband  shall,  in  respect  of  her  separate  pro- 
perty, be  subject  to  the  bankruptcy  laws  in  the 
same  way  as  if  she  were  a  feme  sole  "  : — Held, 
that  the  expression  "  separate  property  "  includes 
only  that  which  would,  if  the  woman  was  un- 
married, be  her  "  property,"  and  does  not  there- 
fore include  a  general  power  of  appointment  by 
deed  or  will  of  which  she  is  the  donee,  but 
which  she  has  not  exercised,  and  a  married 
woman  who  has  traded  separately  from  her 
husband  and  who  has  been  adjudicated  a 
bankrupt,  cannot  be  compelled  to  execute  a 
deed  exercising  such  a  power  in  favour  of  the 
trustee  in  the  bankruptcy.  Gilchrist,  Ex  parte, 
or  Armstrong,  Ex  parte,  Armstrong,  In  re, 
17  Q.  B.  D.  521  ;  55  L.  J.,  Q.  B.  578 ;  55  L.  T. 
638  ;  34  W.  R.  709  ;  51  J.  P.  292 ;  3  M.  B.  R.  193 
— C.  A. 


Marriage  before  1870— Earnings  daring 


Coverture.] — A  lady,  who  was  carrying  on  the 
business  of  a  ladies'  school,  was  married  in  1862. 
A  settlement  was  executed  on  the  marriage, 
which  did  not  in  any  way  refer  to  or  affect  to 
deal  with  the  business  carried  on  by  her  or  the 
goodwill  thereof.  After  the  marriage  she  con- 
tinued to  carry  on  the  school.  Her  husband 
lived  in  the  house,  but  he  did  not  take  any  part 
in  the  business,  nor  assist  in  any  manner  in  the 
tuition.  The  prospectuses,  &c,  of  the  school 
were  in  her  name.  Out  of  the  earnings  of  the 
school  the  wife  contributed  to,  if  she  did  not 
substantially  pay,  the  household  expenses.  Some 
of  the  earnings  were  invested  by  the  husband  in 
his  own  name,  and  another  portion  was  invested 
in  the  purchase  of  the  lease  of  the  premises  in 
which  the  school  was  carried  on.  The  husband 
died  in  1877.  He  did  not  in  anv  way  affect  to 
deal  with  the  school  property  by  his  will,  and  he 
had  not  ostensibly  by  any  act  of  his  treated  it  as 
his  own  property.  Upon  his  death,  the  question 
arose  between  the  executors  of  his  will,  under 
which  his  infant  children  were  interested,  and 
his  widow,  who  survived  him,  as  to  who  was 
entitled  to  the  goodwill,  property,  and  effects  of 
the  business  : — Held,  upon  the  evidence,  that  the 
business  was  carried  on  by  the  wife  separately 
from  her  husband  within  the  meaning  of  s.  1  of 
the  Married  Women's  Property  Act,  1870  ;  that 
it  made  no  difference  that  the  marriage  took 
place  before  the  passing  of  that  act,  and  that  the 
goodwill,  stock,  and  effects  belonging  to  the 
business,  and  all  investments  out  of  the  earnings 
of  the  business  made  since  the  passing  of  the 
act,  were  the  property  of  the  wife.  Dearmer, 
In  re,  James  v.  Dearmer,  53  L.  T.  905 — Kay,  J. 

Settlement  on  First  Marriage — Life  Estate — 
General  Power  of  Appointment— Re-marriage.] 
— By  a  settlement  made  in  1878,  upon  a  former 
marriage  of  Mrs.  P.,  a  fund  was  settled  in  trust 
for  her  during  her  life,  and  during  her  said 
intended  coverture,  for  her  separate  use  without 
power  of  anticipation ;  and  then  upon  trust,  in 
the  events  which  happened,  for  such  persons  as 
she  should  during  coverture  by  deed  or  will 
appoint,  and  when  not  under  coverture  by  deed 
or  will  appoint,  and,  in  default  of  appointment, 
upon  trust  for  her  executors,  administrators,  and 
assigns.  Mrs.  P.,  having  survived  her  former 
husband,  married  again  after  the  passing  of  the 
Married  Women's  Property  Act,  1882,  without 
having  exercised  her  power  of  appointment 
under  the  settlement : — Held,  that  the  operation 


923 


HUSBAND    AND    WIFE. 


924 


of  the  Married  Women's  Property  Act  was  not 
excluded  by  s.  19,  and  that  the  act  applied  so 
far  as  to  add  the  incident  of  separate  use  to  her 
interest  under  the  settlement,  and  that  she  and 
her  husband  were  entitled  to  have  the  fund 
transferred  to  them.  Onslow,  In  re,  Plowden  v. 
Oayford,  39  Cb.  D.  622 ;  57  L.  J.,  Ch.  940  ;  59 
L.  T.  308  ;  36  W.  R.  883— Stirling,  J. 

Possession  of  Husband  as  Trustee — Marriage 
Settlement  made'  Abroad.] — The  rule  that  a 
husband  is  a  trustee  for  his  wife  of  her  separate 
property  when  no  other  trustee  has  been  ap- 
pointed, applies  to  that  which  becomes  her 
separate  property  by  virtue  of  a  marriage  con- 
tract entered  into  in  a  foreign  country.  When, 
therefore,  such  property  is  in  the  possession  of  a 
husband  at  the  commencement  of  his  bankruptcy 
it  does  not  pass  to  his  trustee.  Sibeth,  Ex  parte, 
Sibeth,  In  re,  14  Q.  B.  D.  417 ;  54  L.  J.,  Q.  B. 
322  ;  33  W.  R.  556— C.  A. 

Bequest— Words  creating.] — A  bequest  to  a 
married  woman  of  real  and  personal  property 
"for  her  absolute  use  and  benefit/'  is  sufficient 
to  create  a  separate  estate.  Negus  v.  Jones,  1 
C.  &  B.  52— Williams,  J. 


Restraint  on  Anticipation— Election.] — 


In  the  case  of  a  married  woman,  to  whom  an 
interest  with  a  restraint  on  anticipation  attached 
thereto  is  given  by  the  same  instrument  as  that 
which  gives  rise  to  a  question  of  election,  the 
doctrine  of  election  does  not  apply,  as  the 
value  of  her  interest  in  the  property  to  be  re- 
linquished by  way  of  compensation  has,  by  the 
terms  of  the  instrument,  been  made  inalienable. 
Wheatley,  In  re,  Smith  v.  Spenee,  27  Ch.  D. 
606  ;  54  L.  J.,  Ch.  201 ;  51  L.  T.  681  ;  33  W.  R. 
276— Chitty,J. 


Restraint   on   Anticipation — Bight  to 


Capital.] — A  testator  having  a  general  power  of 
appointment  over  a  settled  fund,  appointed  that 
a  sum  of  1,500/.  should  be  raised  and  paid  to  his 
daughter,  who  was  a  married  woman,  absolutely, 
for  her  separate  use,  without  power  of  anticipa- 
tion ;  ana  appointed  that  one-fourth  of  the 
residue  of  the  fund  should  be  held  upon  trust 
for  the  same  daughter  absolutely  for  her  separate 
use  without  power  of  anticipation  : — Held,  that 
the  daughter  was  not  entitled  to  payment  of  the 
capital  of  one-fourth  of  the  residue.  Grey's 
Settlements,  In  re,  Acason  v.  Greenwood,  34 
Ch.  D.  712  ;  56  L.  J.,  Ch.  611 ;  56  L.  T.  350  ;  35 
W.  R.  560— C.  A. 

Devise  of  Freeholds — Restraint  on  Alienation.] 

— A  testator  gave,  devised,  and  bequeathed  all 
his  freeholds  and  leaseholds  to  two  of  his  daugh- 
ters equally  between  them  as  tenants  in  common 
to  and  for  their  several  and  respective  sole  and 
separate  use  and  benefit  absolutely,  and  stated 
that  it  was  "his  wish  and  request  that  they 
should  not  sell  or  dispose  of  any  part  of  his  said 
freehold  or  leasehold  premises. "  In  a  subsequent 
part  of  his  will,  there  was  a  bequest  of  a  sum  of 
stock  to  trustees  in  trust  to  pay  the  income  to 
another  daughter  for  her  life,  "for  her  own  sole 
and  separate  and  inalienable  use  and  benefit, 
and  without  power  of  anticipation."  The  two 
daughters,  one  of  them  being  married,  contracted 
to  sell  some  of  the  freehold  property.  On  sum- 
mons under  the  Vendor  and  Purchaser  Act  on 


behalf  of  the  purchaser : — Held,  that  the  words 
of  the  devise,  even  if  they  stood  alone,  would 
have  been  insufficient  to  operate  as  a  restraint 
on  anticipation  ;  that  the  cases  as  to  precatory 
trusts  did  not  apply,  as  there  was  no  trust  im- 
posed in  favour  of  some  other  person ;  that  the 
subsequent  bequest  strengthened  this  construc- 
tion ;  and  that  a  good  title  was  shown  as  to  the 
moiety  of  the  married  woman.  Hatchings  U 
Burt,  In  re,  59  L.  T.  490— C.  A.  Reversing  58 
L.  T.  6— Kay,  J. 

Marriage  Before,  Funds  Aoerned  after  1881] 
— Property  to  which  at  the  time  of  the  com- 
mencement of  the  Harried  Women's  Property 
Act,  1882,  a  woman  married  before  the  act  was 
entitled  subject  to  a  life  estate,  but  not  for  her 
separate  use : — Held,  not  to  become  her  separate 
estate  by  failing  into  possession  after  the  com- 
mencement of  the  act.  Reid  v.  Beid,  31  Ch.  D. 
402  ;  55  L.  J.,  Ch.  294  ;  54  L.  T.  100;  34  W.  B. 
332—  C.  A. 

If  a  woman  married  before  the  commencement 
of  the  Married  Women's  Property  Act,  1882,  has 
before  the  commencement  of  the  act  acquired  a 
title,  whether  vested  or  contingent,  and  whether 
in  reversion  or  remainder,  to  any  property,  sack 
property  is  not  made  her  separate  estate  by  s.  5 
of  the  act,  though  it  falls  into  possession  after 
the  act.  Baynton  v.  Collins  (27  Ch.  D.  604) 
overruled.    lb. 

Property  to  which  a  married  woman  was,  at 
the  commencement  of  the  Married  Women's 
Property  Act,  1882,  entitled  for  a  vested  interest 
in  remainder,  and  which,  on  the  4th  of  October, 
1884,  became  an  interest  in  possession,  is  not 
property  "  her  title  to  which  has  accrued  after 
the  commencement  of  the  act"  within  the 
meaning  of  s.  5.  Tucker,  In  re,  Emanuel  t. 
Parfitt  (54  L.  J.,  Ch.  874)  and  Adamefs  Tr**tt 
In  re  (54  L.  J.,  Ch.  878)  followed.  BayntenJ. 
Collins  (27  Ch.  D.  604)  not  followed.  Bobm, 
In  re,  Webster  v.  Richards,  55  L.  J.,  Ch.  300 ; 
34  W.  B.  195— Chitty,  J. 

N.,  a  lady  married  in  1860,  became  entitled,  as 
one  of  the  next  of  kin  of  C,  who  died  without 
children  in  1885,  to  a  share  of  a  fund  settled  by 
a  deed  of  1830,  ia  trust  for  C.  for  life,  and  after 
her  death  to  her  children,  and  in  default  of  chil- 
dren, for  such  person  or  persons  as  should,  on 
the  failure  of  children,  be  the  next  of  kin  of  C. 
under  the  Statute  of  Distributions : — Held,  that 
N.'s  title  accrued  before  the  Married  Women's 
Property  Act,  1882,  and  that  she  did  not  take  a 
separate  estate  under  s.  5  of  that  act,  in  her 
share,  but  that  it  went  to  the  assignee  in  bank- 
ruptcy of  her  husband,  subject  to  her  equity  to 
a  settlement.  Beaupre's  Trusts,  In  re,  21  L.  R* 
Ir.  397— C.  A. 

A  married  woman,  married  before  the  date 
when  the  Married  Women's  Property  Act,  1882, 
came  into  operation,  is  entitled  to  receive  at  her 
separate  property  funds  to  which  her  title  ac- 
crued in  possession  after  that  date,  although  it 
accrued  in  reversion  or  remainder  before  that 
date.  Baynton  v.  Collins,  27  Ch.  D.  604 ;  53 
L.  J.,  Ch.  1112  ;  61  L.  T.  681 ;  33  W.  R.  41- 
Chitty,  J. 

A  testator,  who  died  in  1875,  devised  his  real 
estate  to  his  wife  for  life,  with  remainder  to  his 
children.  One  daughter  married  in  1878,  and 
the  tenant  for  life  died  in  1884 :— Held,  that 
under  the  operation  of  s.  5  of  the  Mamed 
Women's  Property  Act,  1882  (45  k  46  Vict  c  75), 


925 


HUSBAND    AND    WIFE. 


926 


the  married  woman's  share  in  the  estate  was 
her  separate  property,  and  could  be  disposed  of 
by  her  without  the  concurrence  of  her  husband. 
Thompson  and  Curzon,  In  re,  29  Ch.  D.  177  ;  54 
L  J.,  Ch.  610 ;  52  L.  T.  498  ;  33  W.  R.  688— 
Kay,  J. 

Property  to  which  a  married  woman  was,  at 
the  commencement  of  the  Married  Women's 
Property  Act,  1882,  entitled  for  a  vested  interest 
in  remainder,  and  which  afterwards  became  an 
interest  in  possession,  is  not  property  "  her  title 
to  which  has  accrued  after  the  commencement  of 
the  act "  within  the  meaning  of  s.  5.  Tucker, 
1%  re,  Emanuel  v.  Parfitt,  54  L.  J.,  Ch.  874 ; 
52  L.  T.  923  ;  33  W.  K.  932— Pearson,  J. 

Section  5  of  the  Married  Women's  Property 
Act,  1882,  applies  only  to  property  of  a  married 
woman  her  title  to  which  accrues  for  the  first 
time  after  the  commencement  of  the  act ;  it  does 
not  therefore,  include  an  interest  to  which  she 
was  contingently  entitled  before,  but  which  falls 
into  possession  after  the  act.  Adamei  Trusts, 
1%  re,  54  L.  J.,  Ch.  878  ;  63  L.  T.  198  ;  33  W.  R. 
»34-Kay,J. 

Property  to  which  a  woman,  married  before 
the  passing  of  the  Married  Women's  Property 
Act,  1882,  has  acquired  a  contingent  title  before 
the  act,  does  not  become  her  separate  pro- 
perty by  its  falling  into  possession  after  the 
act  Tench'*  Trusts,  In  re,  15  L.  R.,  Ir.  406— 
V.-C. 

Marriage  and  Accrual  before  1882.] — A  woman, 
being  executrix  and  residuary  legatee,  married 
in  1880.  She  had  discharged  all  her  duties  qua 
executrix,  save  that  she  had  not  obtained  pay- 
ment of  a  sum  of  money  which  fell  due  to  her 
testator's  estate  in  September,  1879,  for  which 
sum  she  brought  an  action  in  1883  : — Held,  that 
the  wife's  title  qua  legatee  accrued  before  the 
Married  Women's  Property  Act,  1882,  came 
into  operation,  and  that  the  husband  was  en- 
titled to  this  money  jure  mariti.  Edwards  v. 
Edwards,  1  C.  &  E.  229— Mathew,  J. 

Protection  Order— Cohabitation  resumed.] — 
8et  Emery's  Trust,  In  re,  post,  col.  935. 

(Question  as  to  Property— Enquiry  by  Regis- 
trar.]— A  wife  who  had  obtained  a  decree  for  a 
judicial  separation,  claimed  certain  furniture  as 
her  separate  property,  but  her  husband  denied 
that  she  had  a  title  to  it : — The  court  made  an 
order  under  s.  17  of  the  Married  Women's  Pro- 
perty Act,  1882,  directing  the  registrar  to  enquire 
whether  the  furniture  formed  part  of  the  wife's 
separate  estate.  Phillips  v.  Phillips,  13  P.  D. 
«0;  57  L.  J.,  P.  76 ;  59  L.  T.  183  ;  37  W.  R. 
224  ;  52  J.  P.  407— Butt,  J. 


b.  Liability  of. 

Property  must  exist  at  Time  of  making  Con- 
tract]— The  contract  entered  into  by  a  married 
woman  "to  bind  her  separate  property,"  referred 
to  in  s.  1,  sub-s.  4,  of  the  Married  Women's 
Property  Act,  1882,  is  a  contract  entered  into  at 
a  time  when  she  has  existing  separate  property. 
If  the  married  woman  commits  a  breach  ox  such 
a  contract  and  a  judgment  is  recovered  against 
her  for  the  breach,  the  judgment  can  be  enforced 
against  any  separate  property  which  she  then 
has,    Bat  s.  1 ,  sub-s.  4,  does  not  enable  a  married 


woman  who  has  no  existing  separate  property  to 
bind  by  a  contract  any  separate  property  which 
she  may  possibly  thereafter  acquire.  Shake- 
spear,  In  re,  Dcakin  v.  Lakin,  30  Ch.  D.  169 ; 
55  L.  J.,  Ch.  44  ;  53  L.  T.  145  ;  33  W.  R.  744— 
Pearson,  J. 

Onus  of  Proof.] — S.  1,  sub-s.  2,  of  the 

Married  Women's  Property  Act,  1882,  does  not 
make  a  married  woman  capable  of  rendering 
herself  liable  in  respect  of  her  separate  pro- 
perty on  any  contract  unless  she  has  some 
separate  property  at  the  time  the  contract  is 
made.  In  an  action  against  a  married  woman 
to  recover  the  price  of  goods  sold  and  delivered 
to  her  : — Held,  that  the  onus  was  on  the  plaintiff 
to  show  that  the  defendant  had  separate  pro- 
perty at  the  time  she  made  the  contract.  Pal- 
liser  v.  Qurney,  19  Q.  B.  D.  519  ;  56  L.  J.,  Q.  B. 
546  ;  35  W.  R.  760  ;  51  J.  P.  520— D. 

Married  Women's  Property  Act,  1882,  s.  1, 
sub-s.  4,  not  Retrospective.] — Sub-section  4  of 
section  1  of  the  Married  Women's  Property  Act, 
1882,  which  enacts  that  a  married  woman's  con- 
tract with  respect  to  her  separate  property  shall 
bind  not  only  the  separate  property  to  which 
she  is  entitled  at  the  date  of  the  contract,  but 
all  which  she  shall  subsequently  acquire,  is  not 
retrospective,  and  does  not  apply  to  a  married 
woman's  engagements  made  before  the  act. 
Roper,  In  re,  Roper  v.  Doncaster,  39  Ch.  D. 
482  ;  58  L.  J.,  Ch.  215  ;  59  L.  T.  203  ;  36  W.  R. 
750— Kay,  J. 

Sub-s.  4  of  s.  1  of  the  Married  Women's  Pro- 
perty Act,  1882,  is  not  retrospective,  and,  there- 
fore, in  an  action  on  a  contract  made  by  a 
married  woman  before  the  passing  of  that  act, 
judgment  cannot  be  ordered  in  such  terms  as  to 
be  available  against  separate  property  to  which 
the  defendant  became  entitled  after  the  date  of 
the  contract.  Tumbull  v.  Formun,  15  Q.  B.  D. 
234 ;  54  L.  J.,  Q.  B.  489  ;  53  L.  T.  128  ;  3a 
W.  R.  768  ;  49  J.  P.  708— C.  A. 

Separate  Use  not  arising  till  after  Contract.] 
— By  a  post-nuptial  settlement  made  in  pur- 
suance of  ante-nuptial  articles,  certain  policies 
of  insurance  on  the  life  of  the  husband  were 
assigned  to  trustees  upon  trust  to  receive  the 
money  and  pay  the  income  to  the  wife  during 
her  life  for  her  separate  use,  independently  of 
any  future  husband  whom  she  might  marry. 
There  was  no  restraint  on  anticipation.  During 
the  life  of  her  first  husband  the  wife  made  pro- 
missory notes  in  favour  of  the  plaintiff,  and  the 
plaintiff,  the  first  husband  being  still  alive, 
brought  an  action  claiming  a  charge  on  the 

Solicies  : — Held,  that  the  trust  for  separate  use 
id  not  arise  till  after  the  death  of  the  husband, 
and  that  as  the  contracts  of  a  married  woman  can 
only  be  enforced  against  property  which  formed 
part  of  her  separate  estate  at  the  date  of  the 
contract,  the  action  could  not  be  maintained. 
Qaffee,  In  re  (1  Mac.  &  G.  541),  Molyncux's 
Estate,  In  re  (6  L.  R.,  Eq.  411),  and  Sturgis  v. 
Corp  (13  VeB.  190),  discussed.  King  v.  Lucas, 
23  Ch.  D.  712  ;  53  L.  J.,  Ch.  64  ;  49  L.  T.  216  -r 
31  W.  R.  904— C.  A. 

Marriage  during  Pending  Proceedings.]  — 
Where  a  woman  married  when  proceedings  were 
pending  between  her  and  others,  which  resulted 


927 


HUSBAND    AND    WIFE. 


928 


After  her  marriage  in  a  statutory  debt  being 
-created  : — Held,  that  her  separate  property  was 
chargeable  with  the  payment  of  such  debt. 
London  (Mayor)  v.  Brooke,  1  C.  &  E.  169 — 
Pollock,  B. 

Contract  after  1882 — Restraint  on  Anticipa- 
tion.]— A  married  woman,  having  either  no 
separate  property,  or  only  separate  property 
subject  to  a  restraint  on  anticipation,  who  insti- 
tutes divorce  proceedings  after  the  passing  of 
the  Married  Women's  Property  Act,  1882,  cannot 
be  deemed  under  the  act  to  have  entered  into  a 
•contract,  with  respect  to  her  separate  property, 
for  payment  of  the  costs  of  her  solicitor  incurred 
in  the  divorce  proceedings.  Harrison  v. 
Harrison,  13  P.  D.  180  ;  58  L.  J.,  P.  28 ;  60 
L.  T.  39  ;  36  W.  E.  748—0.  A. 

Action  brought  before,  Order  of  Reference  by 
Oonsent  after  Act.] — S.  1,  sub-sections  8  and  4, 
of  the  Married  Women's  Property  Act,  1882, 
have  not  a  retrospective  operation  so  as  to 
include  contracts  entered  into  by  a  married 
woman  before  the  date  of  the  commencement  of 
the  act.  But  an  order  made  after  the  commence- 
ment of  the  act  by  consent  in  an  action  by  a 
•creditor  against  a  married  woman  in  respect  of 
her  contract  before  the  act,  by  which  order  all 
-questions  under  the  contract  were  referred  to 
an  arbitrator,  and  the  parties  bound  themselves 
to  abide  by,  obey,  perform,  and  keep  the  award, 
is  an  agreement  by  the  married  woman  after  the 
•commencement  of  the  act,  within  s.  1  (3),  and 
therefore  by  s.  1  (4)  any  separate  estate  which 
she  had  at  or  after  the  date  of  such  agreement 
is  liable  to  pay  the  amount  found  by  the  award 
to  be  due  from  her  under  the  contract.  Conolan 
v.  Leyland,  27  Ch.  D.  632 ;  54  L.  J.,  Ch.  123  ; 
51  L.  T.  895— Chitty,  J. 

Settlement  made  before  1882— Restraint  on 
Anticipation.] — S.  19  of  the  Married  Women's 
Property  Act,  1882,  so  far  as  it  affects  the 
validity  of  a  settlement  or  an  agreement  for  a 
settlement  as  against  the  creditors  of  a  married 
woman,  is  not  retrospective.  Therefore  execu- 
tion cannot  issue  against  property  settled  before 
the  commencement  of  the  act  to  the  separate  use 
of  a  married  woman  without  power  of  anticipa- 
tion. Smith  v.  Whitlock,  55  L.  J.,  Q.  B.  286  ; 
34  W.  R.  414— D. 

Post-nuptial  Settlement  before  1882 — Con- 
tract during  Coverture] — By  a  post-nuptial 
settlement,  made  before  the  Married  Women's 
Property  Act,  1882,  property  devised  by  will 
lo  a  married  woman  for  her  separate  use  with- 
out restraint  against  anticipation  was  limited 
to  her  for  life  for  her  separate  use  without  power 
of  anticipation,  remainder  to  the  husband  for 
life,  remainder  to  the  children.  The  wife  after 
the  act  and  during  coverture  made  a  promissory 
note  in  favour  of  the  plaintiffs,  and  after  the 
death  of  the  husband  the  plaintiffs  obtained 
judgment  upon  the  note  against  the  widow  and 
an  order  for  the  appointment  of  a  receiver  of 
the  rents  and  profits  of  the  property  in  settle- 
ment : — Held,  that  upon  the  true  construction 
of  the  Act,  ss.  1,  5,  and  19,  the  property  in 
settlement  was  not  liable  to  satisfy  the  judg- 
ment, and  that  the  order  appointing  the  receiver 
muBt  be  discharged.  Beckett  v.  Tasker,  19  Q. 
B.  D.  7 ;  56  L.  T.  636  ;  36  W.  R.  168— D. 


Undertaking  as  to  Damages.  ]— Where  an  in- 
junction is  wrongly  granted,  an  undertaking  as 
to  damages  given  to  the  plaintiff  is  equally  en- 
forceable whether  the  mistake  was  in  point  of 
law  or  in  point  of  fact.  In  such  a  case  a  hus- 
band-defendant is  not  prohibited  from  enforcing 
an  undertaking  given  by  a  wife-plaintiff  by 
reason  of  the  provision  in  the  Married  Women's 
Property  Act,  1882,  s.  12,  debarring  him  from 
suing  his  wife  in  tort.  A  married  woman  who 
has  given  an  undertaking  as  to  damages  since 
the  Married  Women's  Property  Act,  1882,  will 
be  dealt  with  on  the  same  footing  as  that  on 
which  a  married  woman's  next  friend  who  had 
given  such  an  undertaking  would  have  been 
dealt  with  before  the  act.  Hunt  v.  Hunt,  54 
L.  J.,  Ch.  289—  Pearson,  J. 

Costs  of  Proceedings  improperly  Instituted 
— Restraint  on  Anticipation.]  —  A  married 
woman  who,  under  a  will,  was  entitled  to 
income  for  her  separate  use,  with  a  restraint  on 
anticipation,  instituted  (without  a  next  friend) 
against  the  trustees  proceedings  in  the  course  of 
which  she  took  out  a  summons  which  was 
refused  : — Held,  that  the  restraint  on  anticipa- 
tion did  not  prevent  the  court  from  giving  the 
trustees  liberty  to  retain  their  costs  of  the  pro- 
ceedings out  of  the  married  woman's  income. 
Andrews,  In  re,  Edwards  v.  Detoar,  30  Ch.  D. 
1 59  ;  54  L.  J.,  Ch.  1049  ;  53  L.  T.  422  ;  34  W.  R. 
62 — Pearson,  J.    See  next  case. 

A  married  woman  by  her  next  friend,  having 
brought  in  1882  an  action  for  administration  of 
a  trust  fund,  to  the  income  of  which  she  was 
entitled  for  her  separate  use  without  power  of 
anticipation,  the  court,  on  further  consideration 
in  1884,  held  the  action  to  have  been  unnecessary 
and  improper,  and  the  next  friend  was  ordered 
to  pay  the  defendants1  costs.  The  defendants 
being  unable  to  find  the  next  friend,  an  order 
was  made  giving  the  trustees  liberty  to  retain 
the  costs  out  of  the  income  of  the  trust  fund 
already  due  and  to  become  due  to  the  married 
woman : — Held  on  appeal,  that  no  such  order 
could  be  made,  for  that  the  court  has  no  jurisdic- 
tion to  disregard  the  restraint  on  anticipation  on 
the  ground  that  it  appeared  to  the  court  to  be 
just  to  do  so  ;  and  that  no  income  which  did  not 
accrue  due  till  after  the  action  on  which  the  claim 
against  the  separate  estate  depended,  viz.,  the 
improper  institution  of  the  suit,  could  be  at- 
tached to  meet  the  costs.  GlanvUl,  In  re,  Iftli*  ▼. 
Johnson,  31  Ch.  D.  532  ;  55  L.  J.,  Ch.  325 ;  54 
L.  T.  411 ;  34  W.  R.  309  ;  50  J.  P.  662— C.  A 

Whether,  if  the  plaintiff  had  been  suing  under 
the  Married  Women's  Property  Act,  1 882,  without 
a  next  friend,  the  order  could  have  been  sup- 
ported, quaere.  Andrews,  In  re  (30  Ch.  D.  159) 
observed  upon.    lb. 

Simple  Contract  Debt — Analogy  of  Statato 
of  Limitations.]— In  1875  a  married  woman 
borrowed  money  from  her  husband  upon  a 
parol  agreement  to  repay  him  the  amount  with 
interest  out  of  her  separate  estate.  She  died  in 
1884,  without  having  paid  anything  in  respect 
either  of  interest  or  principal,  and  without 
having  given  any  acknowledgment  in  writing  of 
her  liability  to  repay  the  debt.  After  ber  death 
her  husband  claimed  repayment : — Held,  that  the 
debt  was  barred  by  analogy  to  the  Statute  of 
Limitations.  Norton  v.  TurvUl  (2  P.  Wins.  H4) 
explained.    Hastings  (Lady),  In  re,  HaUett  v. 


929 


HUSBAND    AND    WIFE. 


980 


i     Hsdingt,  35  Ch.  D.  94  ;  66  L.  J.,  Ch.  631 ;  67 
L.  T.  126 ;  35  W.  R.  584  ;  62  J.  P.  100— C.  A. 

Omni  Power  of  Appointment  by  Will— 
liability  of  appointed  Property.]— In  cases 
not  within  the  Married  Women's  Property  Act, 
1882,  the  exercise  by  the  will  of  a  married 
woman  of  a  general  power  of  appointment, 
whether  the  power  be  exerciseable  by  deed  or 
will,  or  by  will  only,  does  not  make  the  property 
appointed  liable  to  engagements  entered  into 
with  her  on  the  credit  of  her  separate  estate. 
Ikpr,  In  re,  Roper  v.  Doncaster,  39  Ch.  D.  482  ; 
58  L.  J..  Ch.  216  ;  59  L.  T.  203  ;  36  W.  R.  750— 
Kay,  J. 

Isitraint  on  Anticipation— Payment  to  Wife 
nder  Order  reverted— Lien.] — A  female  infant 
entitled  under  a  will  to  a  share  of  residuary  per- 
sonalty contingently  on  her  attaining  twenty- 
one,  married  before — but  came  of  age  after — the 
commencement  of  the  Married  Women's  Pro- 
perty Act,  1882.    On  her  marriage  a  settlement 
of  her  property,  not  sanctioned  under  the  Infants' 
Settlement  Act,  was  made  under  which  she  took 
the  first  life  estate  with  a  restraint  on  anticipa- 
tion.   On  her  coming  of  age  the  fund  was  paid 
to  her  under  an  order  of  the  court    The  Court  of 
Appeal  reversed  this   order  and  declared  her 
liable  to  refund,  on  the  ground  that  the  fund 
was  subject  to  the  settlement.    She  refunded 
part,  but  was  unable  to  refund  the  remainder, 
which  she  had  spent.    After  this,  the  executors 
of  the  will  paid  to  the  trustees  of  the  settlement 
an  arrear  of  income  which  they  had  in  hand  : — 
Held,  that  so  much  of  this  income  as  accrued 
between  the  married  woman's  attaining  twenty- 
ooe,and  the  order  declaring  her  liability  to  refund, 
nust  be  retained  in  part  satisfaction  of  her 
liability  to  refund.     Pike  v.  Fitzgibbon  (17  Ch. 
D.  454)  distinguished.    Dixon,  In  re,  Diwon  v. 
Smith,  35  Ch.  D.  4  ;  56  L.  J.,  Ch.  773  ;  57  L.  T. 
W ;  35  W.  R.  742— C.  A. 

Oevked  Seal  Estate— Liability  of  Devisee— 
brtniat  on  Anticipation.]— The  liability,  under 
the  Act  11  Geo.  4  &  1  Will.  4,  c.  47,  of  a  devisee 
of  land,  who  alienates  the  land,  to  the  unpaid 
debts  of  the  testator,  is  such  that,  on  the  aliena- 
tion, the  debts  become  his  own  debts  to  the 
detent  of  the  value  of  the  land  alienated.  Con- 
aeqwemMy,  when  a  woman  to  whom  land  had 
oen  devised  settled  it  on  her  marriage,  after  the 
posing  of  the  Married  Women's  Property  Act, 
1870,  the  first  trust  being  for  herself  absolutely 
uanl  the  marriage,  and,  after  its  solemnization, 
on  trust  for  herself  for  her  life,  without  power 
of  anticipation,  with  remainder  on  trusts  for  the 
isne  of  the  marriage : — Held,  that  the  testator's 
personal  estate  being  insufficient  to  pay  his  debts, 
the  life  interest  of  the  settlor  was,  notwithstand- 
ing the  restraint  on  anticipation,  liable  to  make 
good  the  deficiency,  to  the  extent  of  the  value 
of  the  devised  land ;  her  liability  to  satisfy  the 
debts  of  the  testator,  which  arose  on  her  aliena- 
tion of  the  land  by  the  settlement,  being  a  debt 
"  contracted  by  her  before  marriage,"  within  the 
■waning  of  s.  12  of  the  Married  Women's  Pro- 
perty Act,  1870.  Sanger  v.  Sanger  (11  L.  R., 
Eq.  470)  and  London  and  Provincial  Bank  v. 
Bsgle  (7  Ch.  D.  773)  followed.  Hedgely,  In  re, 
8**U  v.  Hedgely,  34  Ch.  D.  379 ;  66  L.  J.,  Ch. 
*0;  66  L.  T.  19  ;  36  W.  R.  472— North,  J. 


c.    Proceedings  against. 


Pleading— Statement  of  Claim— No  Appear- 
ance entered.] — Where  a  married  woman  is 
defendant  in  an  action  on  a  contract,  and  has 
made  default  in  the  delivery  of  a  defence,  the 
statement  of  claim  must  contain  an  allegation 
that  the  defendant  has  separate  estate ;  otherwise 
the  court  will  refuse  to  make  an  order  against 
the  defendant  on  the  statement  of  claim  under 
Ord.  XXVII.  r.  11,  of  the  Rules  of  1883. 
TeiXey  v.  Griffith,  57  L.  T.  673  ;  36  W.  R.  96— 
Chitty,  J. 

Judgment  under  Ord.  XIV— Evidence  of 
Separate  Estate.] — In  an  action  against  husband 
and  wife  to  recover  a  debt  of  the  wife  contracted 
before  marriage,  where  the  marriage  has  taken 
place  after  the  coming  into  operation  of  the 
Married  Women's  Property  Act,  1870,  and  the 
Married  Women's  Property  Act,  1870,  Amend- 
ment Act,  1874,  but  before  the  coming  into 
operation  of  the  Married  Women's  Property  Act, 
1882,  judgment  may  be  entered  against  the  wife 
under  Ord.  XIV.  r.  1,  making  the  debt  and  costs 
payable  out  of  her  separate  property,  with  a 
limitation  as  regards  execution  similar  to  that  in 
the  form  settled  in  Scott  v.  Morley  (20  Q.  B.  D. 
120),  without  proof  of  the  existence  of  separate 
estate  at  the  date  of  the  judgment.  Dovme  v. 
Fletcher,  21  Q.  B.  D.  11 ;  69  L.  T.  180 ;  36  W.  R. 
694  ;  62  J.  P.  376-D. 

Form  of  Judgment] — The  proper  form  of 
judgment  against  a  married  woman  under  s.  1, 
sub- s.  (2)  of  the  Married  Women's  Property  Act, 
1882,  settled  by  the  court.  Scott  v.  Morley,  20 
Q.  B.  D.  120  ;  57  L.  J.,  Q.  B.  43  ;  57  L.  T.  919  ; 
36  W.  R.  67  ;  62  J.  P.  230 ;  4  M.  B.  R.  286— 
C.A. 

When  judgment  was  recovered  against  a  mar- 
ried woman,  an  order  was  made,  on  the  appli- 
cation of  the  plaintiff,  that  the  judgment  debtor 
should  pay  the  amount  due  upon  the  judgment 
by  instalments  out  of  her  separate  estate  not 
subject  to  restraint  against  anticipation ;  or 
which,  being  so  subject,  was  nevertheless  liable 
to  execution  under  s.  19  of  the  Married  Women's 
Property  Act,  1882.  Johnstone  v.  Browne,  18 
L.  R.,  Ir.  428— Ex.  D. 

When  judgment  is  obtained  against  a  married 
woman,  execution  is  limited  to  such  separate 
estate  as  she  is  not  restrained  from  antici- 
pating ;  unless  such  restraint  exists  under  any 
settlement  or  agreement  for  a  settlement  of  her 
own  property,  made  or  entered  into  by  herself. 
BursUl  v.  Tanner,  13  Q.  B.  D.  691  ;  50  L.  T. 
589 ;  32  W.  R.  827— D.  See  also  Gloucester- 
shire Banking  Company  v.  Phillips,  post,  col. 
943. 

The  plaintiff  sued  the  defendant,  a  widow,  as 
maker  of  a  promissory  note  during  the  lifetime 
of  her  husband.  The  defendant  pleaded  that  at 
the  making  of  the  note  she  was  not  entitled  to 
separate  property,  and  that  she  did  not  after- 
wards become  possessed  of  or  entitled  to  any 
property  which  she  could  charge,  alien  or  dis- 
pose of ;  that  the  only  separate  estate  she 
possessed  or  was  entitled  to  at  the  date  of 
the  note,  and  afterwards  during  coverture,  was 
separate  estate  subject  to  a  restraint  on  anti- 
cipation ;  and  that  there  were  not,  at  the  date 
of  the  alleged  contract,  or  subsequently,  arrears 

H  H 


/ 


981 


HUSBAND    AND    WIFE. 


932 


thereof  due  : — Held,  on  demurrer,  a  valid  defence 
to  the  action.  The  principle  of  Pike  v.  Fitz- 
gibbon  (17  Ch.  D.  454)  has  not  been  altered  by 
the  Married  Women's  Property  Act,  1882  (45  & 
46  Vict.  c.  75).  Myles  v.  Burton,  14  L.  B.,  Ir. 
258— C.  P.  D. 


Execution    Limited.]  —  Where,    upon 


motion  to  enter  final  judgment  against  a 
married  woman,  she  denied  by  affidavit  having 
separate  estate,  save  property  settled  on  her 
marriage,  with  a  restraint  on  anticipation,  the 
court,  in  allowing  judgment  to  be  entered, 
limited  execution  to  such  separate  property  as 
she  was  not  restrained  from  anticipating,  unless 
such  restraint  existed  under  a  settlement  or 
agreement  for  a  settlement  of  her  own  pro- 
perty made  or  entered  into  by  herself.  Form 
of  Order.  Nieholls  v.  Morgan,  16  L.  R.,  Ir.  409 
— C.  P.  D.    And  see  Scott  v.  Morley,  supra. 

Writ  of  Sequestration— Perm.] — The  general 
form  of  a  writ  of  sequestration  against  "the 
estate  and  effects  "  of  a  married  woman  without 
any  express  limitation  therein  to  separate  pro- 
perty of  the  wife  not  subject  to  a  restraint  on 
anticipation  is  correct ;  but  the  writ  can  only 
operate  on  her  separate  property  which  is 
not  so  subject.  Hyde  v.  Hyde,  13  P.  D.  166  ; 
57  L.  J.,  P.  89  ;  69  L.  T.  529  ;  36  W.  B.  708— 
C.A. 


Inquiry  as  to  Existence.] — A  charge  given  by 
a  married  woman  upon  her  separate  estate  is 
sufficient  evidence  of  the  existence  of  separate 
estate  to  entitle  a  plaintiff,  with  whom  she  has 
contracted,  to  an  inquiry.  London  Alliance 
Discount  Company  v.  Kerr,  1  C.  &  E.  6 — 
Cave,  J. 

Eeceiver— In  what  Cases— Judicature  Act, 
1878,  s.  25,  sub-s.  8.] — M.,  a  married  woman, 
by  her  next  friend,  applied  to  tax  the  bill  of 
costs  of  her  solicitor,  incurred  in  a  suit  relating 
to  her  separate  estate.  After  the  taxing-master's 
certificate  had  been  filed,  an  order  was  made  on 
the  application  of  the  solicitor,  directing  an  in- 
quiry of  what  M.'s  separate  estate  consisted  at 
the  date  of  the  filing  of  the  certificate  capable 
of  being  reached  by  the  judgment  and  execution 
of  the  court,  and  appointing  a  person  to  receive 
it  until  the  amount  found  due  on  taxation  was 
paid : — Held,  that  this  order  was  proper,  and 
that  it  was  not  necessary  to  take  separate  pro- 
ceedings by  action  to  enforce  the  demand 
against  the  separate  estate.  Peace  and  Waller, 
In  re,  24  Ch.  D.  406  ;  49  L.  T.  637  ;  81  W.  B.  899 
—C.A. 


Who  Appointed— Prior  Charges.]— In  an 

action  against  a  married  woman  alleged  to  be 
possessed  of  separate  estate,  no  defence  being 
delivered,  the  master,  by  his  report,  found  that 
she  was  entitled  to  separate  estate  vested  in 
trustees,  and  subject  to  certain  charges.  The 
report  being  confirmed,  the  plaintiff  was  ap- 
pointed receiver,  without  security,  of  the  residue 
of  the  income  of  the  separate  estate,  after  pay- 
ment of  the  prior  charges,  the  plaintiff  under- 
taking to  act  without  commission.  AT  Garry  v. 
White,  16  L.  B.f  Ir.  322— Q.  B.  D. 


d.  Bemoving  Bestraint  on  Anticipation. 

Principles  on  which  Courts  act.]— The  power 
given  by  s.  39  of  the  Conveyancing  Act,  1881, 
ought  not  to  be  used  indiscriminately.  Jordan, 
In  re,  Kino  v.  Picard,  infra. 

S.  39  of  the  Conveyancing  Act,  1881,  confers 
no  general  power  of  removing  the  restraint  on 
anticipation,  but  only  enables  the  court  to  make 
binding  some  particular  disposition  of  her 
property  by  a  married  woman,  notwithstanding 
a  restraint  on  anticipation,  if  the  court  is  of 
opinion  that  such  disposition  is  beneficial  to  her. 
Warren's  Settlement,  In  re,  52  L.  J.,  Ch.  928; 
49  L.  T.  696— C.  A. 

Possibility  of  Issue.] — Application  by  husband 
and  wife  and  trustees  of  a  settlement  for  the  re- 
moval of  the  restraint  on  anticipation,  for  the 
purpose  of  rendering  the  capital  of  the  trust  fund 
— which  stood  limited  upon  the  death  of  the  sur- 
vivor of  husband  and  wife  in  trust  for  the 
children  of  the  marriage — available  for  the 
benefit  of  the  husband  and  wife,  who  were  fifty- 
three  and  fiftv  years  old  respectively,  there  being 
no  issue  of  the  marriage,  refused,  chiefly  on  the 
ground  that  the  court  ought  not  to  assume  that 
there  would  be  no  children,  although  the  parties 
had  been  married  for  twenty-eight  years,  and 
had  never  had  any  children,  and  there  was 
medical  evidence  that  it  was  almost,  if  not 
entirely,  impossible  that  there  could  be  any  issue. 
lb. 

Unauthorised  Investment.] — Trust  funds,  to 
which  a  married  woman  was  absolutely  entitled, 
but  subject  to  a  restraint  on  anticipation,  were 
invested  upon  mortgages  of  leasehold  property, 
one  of  which,  not  being  authorised  by  the  trusts 
of  the  settlement,  the  trustees  proposed  to  call 
in.  The  court  being  satisfied  that  it  would  be 
for  the  benefit  of  the  married  woman,  made  an 
order,  on  her  application,  permitting  the  infest- 
ment  to  continue  unchanged.  Wright's  TrusU, 
In  re,  15  L.  B.,  Ir.  331— V.-C. 

Payment  off  of  Mortgage.] — By  a  voluntary 
deed  lands  were  settled  on  A.,  the  settlor  for 
life ;  remainder  to  B.,  a  married  woman,  for 
life,  with  a  clause  against  anticipation;  re- 
mainder to  C.  (B.'s  husband)  for  life  ;  remainder 
as  B.  should  appoint ;  A.,  B.,  and  C,  joined  in  a 
mortgage  with  a  power  of  sale,  to  secure  advancei 
by  a  bank  to  them.  The  bank  sold  under  their 
power  for  the  full  value.  It  appearing  that  there 
were  no  other  means  of  paying  off  the  mortgage, 
that  the  lands  were  in  danger  of  eviction  for  non- 
payment of  headrent,  and  that  they  were  sold 
for  full  value,  the  court,  on  the  application  of  B. 
and  C,  made  an  order  for  dispensing  with  the 
restraint  on  anticipation.  Seagrate's  Trust, 
In  re,  17  L.  B.,  Ir.  373— M.  B. 


w    Life   Interest  —  Forfeiture.]  —  A 

married  woman  was,  under  the  will  of  a  testator, 
entitled  to  the  income  of  a  share  of  his  residuary 
estate  for  her  life  for  her  separate  use  without 
power  of  anticipation.  The  will  contained  a 
proviso  that  the  income  to  which  any  person 
should  become  entitled  for  life  under  the  will 
should  be  forfeited  in  the  event  of  such  person 
charging,  alienating,  or  assigning  such  income  or 
any  part  thereof  by  any  act  of  theirs,  or  by 
bankruptcy,  or  other  act  or  operation  of  !**• 


933 


HUSBAND    AND    WIFE. 


984 


And  there  was  a  gift  over  of  the  income  in  the 
CTentof  forfeiture.  She  applied  to  the  court, 
under  s.  39  of  the  Conveyancing  Act,  1881,  that, 
notwithstanding  the  restraint  on  anticipation, 
she  might  be  at  liberty  to  bind  her  life  interest 
under  the  will  for  the  purpose  of  raising  a  loan  : 
—Held,  that  the  application  must  be  refused  as 
it  might  involve  a  forfeiture  of  her  life  interest. 
Jordan,  In  re,  Kino  v.  Pirard,  55  L.  J.,  Ch.  330  ; 
54  L.  T.  127  ;  34  W.  R.  270— Pearson,  J. 

Tenants  in  Common— House  Property  .J — Two 
married  women  were  tenants  in  common  in  equal 
shares  of  property  for  their  separate  use  without 
power  of  anticipation.  The  property  consisted 
for  the  most  part  of  houses  of  which  desirable 
learcs  could  not  be  granted  because  of  the  re- 
straint on  anticipation.  A  summons  was 
accordingly  taken  out  for  an  order  under  the 
Conveyancing  Act,  1881,  8.  39,  enabling  the 
married  women  to  bind  their  interests  in  the 
property,  and  for  a  partition,  and  its  resettle- 
ment in  moieties  upon  the  married  women  for 
their  lives  for  their  separate  use  without  power 
cf  anticipation,  with  remainders  for  their 
husbands  for  their  lives,  and  ultimate  remainders 
for  the  issue  of  the  marriages  : — Held,  that  under 
the  circumstances  an  order  binding  the  interests 
of  the  married  women  would  be  for  their  benefit 
within  s.  39.  Currey,  In  re,  Qibsm  v.  Way, 
56  L.  J.,  Ch.  389  ;  56  L.  T.  80  ;  35  W.  R.  326— 
Chitty,  J. 

Te  satiify  Wife's  Creditors.]— A  wife  living 
with  her  husband  was  entitled  to  an  income  of 
1,7002.  for  her  separate  use  without  power  of 
anticipation.  Her  husband  was  without  any 
means  and  had  been  adjudged  bankrupt.  The 
wife  had  given  acceptances  to  many  of  her 
husband's  creditors,  and  was  harassed  with 
actions,  and  a  county  court  order  for  attachment 
in  event  of  non-payment  had  been  made  against 
her.  She  was  also  suffering  in  health  from  the 
anxiety  produced  by  pecuniary  embarrassment : 
—Held,  that  the  case  was  one  in  which  the  court 
would,  in  the  exercise  of  its  discretion  under  s. 
39  of  the  Conveyancing  Act,  1881 ,  make  an  order 
relieving  put  of  the  wife's  income  from  the  re- 
straint on  anticipation,  in  order  that  a  sum 
Blight  be  raised  to  satisfy  creditors.  C.'s  Settle- 
ment, In  re,  56  L.  J.,  Ch.  556  ;  56  L.  T.  299— 
Chitty,  J. 

App&eation— Service  on  Trustees.]— On  an 
application  by  a  married  woman,  under  s.  39  of 
the  Conveyancing  Act,  1881,  for  liberty  to  bind 
her  life  interest  by  way  of  mortgage,  notwith- 
standing that  she  is  restrained  from  anticipation, 
it  is  not  necessary  to  serve  the  trustees  of  the 
settlement.  Little,  In  re,  36  Ch.  D.  701 ;  56  L. 
J.,  Ch.  872  ;  57  L.  T.  583—  C.  A. 


5.    MAINTENANCE  BT  HUSBAND. 

Jurisdiction  of  Justice*— "Desertion."]— By 
the  Harried  Women  (Maintenance  in  case  of 
Desertion)  Act,  1886  (49  k  50  Vict  c.  62),  s.  1, 
any  married  woman  who  has  been  "  deserted  " 
by  her  husband  may  summon  him  before  jus- 
tices, and  the  justices,  "if  satisfied  that  the 
husband,  being  able  wholly  or  in  part  to  main- 
tain his  wife  and  family,  has  wilfully  neglected 
or  refused  so  to  do,  and  has  deserted  his  wife," 


may  order  that  he  shall  pay  her  a  weekly  sum 
for  her  support.  Upon  a  summons  by  a  married 
woman  under  the  act,  it  appeared  that  disputes 
had  arisen  between  her  and  her  husband,  and 
that  they  had  lived  apart  under  an  agreement 
for  separation,  by  which  he  undertook  to  pay 
her  a  weekly  allowance  so  long  as  she  should 
live  chastely  and  should  not  molest  him.  He 
had  ceased  to  make  and  refused  to  continue  the 
weekly  payments  under  the  agreement.  He 
charged  his  wife  with  adultery,  but  the  justices 
found  that  the  charge  was  not  proved  : — Held, 
that  the  refusal  of  the  husband  to  pay  his  wife 
the  weekly  allowance  and  to  carry  out  the 
agreement  of  separation  was  not  sufficient 
evidence  of  "  desertion "  within  the  act  to  war- 
rant the  justices  in  making  an  order  against  him 
for  her  support.  Pape  v.  Pape,  20  Q.  B.  D.  76 ; 
57  L.  J.,  M.  C.  3  ;  58  L.  T.  399  ;  36  W.  R.  126  ; 
52  J.  P.  181— D. 


Residence  of  Wife.]— A  married  woman 

whose  husband  has  deserted  and  refused  to 
maintain  her  may  obtain  an  order,  under  49  & 
50  Vict.  c.  52,  against  him  for  her  support  from 
any  magistrate  or  justices  within  whose  juris- 
diction she  resides  at  the  time  of  such  refusal 
or  desertion,  whichever  act  is  the  latest.  Reg. 
v.  Leresche,  56  L.  J.,  M.  C.  136 ;  35  W.  ft. 
805— D. 

Where  such  an  order  did  not  contain  the  name 
of  the  place  where  the  refusal  to  maintain  took 
place,  the  court  refused  to  make  absolute  a  rule 
for  a  certiorari  to  bring  up  and  quash  the  same, 
it  being  admitted  that  the  wife's  residence  was 
within  the  jurisdiction.    lb. 


Order  obtained  by  Guardians    Wife  leav- 


ing Workhouse.  1— K.,  in  1877,  deserted  his  wife, 
who  went  into  the  workhouse  in  1881 ;  the  over- 
seers obtained  an  order  upon  K.  for  maintenance. 
In  1886  the  wife  left  the  workhouse,  and  applied 
for  an  order  of  maintenance  under  49  &  50  Vict.  c. 
52 : — Held,  that  the  justices  had  jurisdiction,  and 
that  as  the  former  order  was  revoked  by  the  wife 
leaving  the  workhouse,  and  as  K.  had  never  made 
any  bona  fide  offer  to  resume  cohabitation,  she 
was  a  deserted  wife.  Kershaw  v.  Kershaw,  51 
J.  P.  646— D. 

Right  of  Re-hearing— Evidence  of  Adultery.] 
— A  wife  applied  to  justices  for  an  order  of  main- 
tenance against  her  husband  under  49  &  50  Vict, 
c.  52.  He  suggested  adultery  against  her,  but  was 
not  prepared  to  prove  it.  The  justices  offered  to 
adjourn  it,  so  as  to  give  time  to  obtain  evidence, 
but  he  declined.  The  justices  made  the  ordei 
against  the  husband : — Held,  that  he  could  not 
afterwards  insist  on  a  rehearing  on  the  ground 
that  he  had  since  obtained  evidence  of  the  wife's 
adultery.  Beg.  v.  Oldham  JJ.,  51  J.  P.  647 
— D. 

The  power  given  to  justices  by  s.  2  of  the 
Married  Women  (Maintenance  in  Case  of  Deser- 
tion) Act,  1886  (49  &  50  Vict.  c.  52),  to  "  rehear 
any  such  summons  at  the  instance  of  the  hus- 
band at  any  time  "  is,  on  the  true  construction 
of  the  act,  confined  to  the  cases  mentioned  in 
the  2nd  proviso  to  the  1st  section,  in  which  proof 
is  offered  that  the  wife  has  since  the  making  of 
the  order  been  guilty  of  adultery.  Sephton  v. 
Sephton,  58  L.  T.  281  j  52  J.  P.  356— D. 

H  H  2 


985 


HUSBAND    AND    WIFE. 


986 


Under   Separation    Agreement!.] — See  ante, 
cols.  910  et  seq. 

In  Divorce  Proceedings.] — See  ante,  cols.  901 
et  *eq< 


6.    OTHER  PROPERTY. 

Title  Deeds — Trustee  in  Bankruptcy  of  Hus- 
band of  Tenant  for  Life.] — Where  a  wife  is  legal 
tenant  for  life  of  lands,  not  for  her  separate  use, 
the  trustee  in  bankruptcy  of  her  husband  has  no 
absolute  right  to  the  possession  of  the  title-deeds 
during  the  coverture,  but  the  court  has  a  discre- 
tion in  the  matter.  B-ogers,  Ex  parte,  Pyatt,  In 
re,  26  Ch.  D.  31  ;  53  L.  J.,  Ch.  936  ;  61  L.  T.  177  ; 
32  W.  R.  737— C.  A. 

Protection  Order  —  Cohabitation  resumed  — 
Reduction  into  Possession.  ] — Where  a  wife,  en- 
titled to  property  which  is  reversionary,  or  which 
had  not  been  reduced  into  possession  by  the 
husband,  has  obtained  a  protection  order  under 
41  &  42  Vict.  c.  19,  s.  4,  and  has  afterwards 
resumed  cohabitation  with  her  husband,  on  the 
property  coming  or  being  reduced  into  possession, 
the  wife  is  entitled  to  it  absolutely  under  20  &  21 
Vict.  c.  85,  s.  25,  and  21  &  22  Vict  c.  108,  s.  8. 
Entry's  Trust,  In  re,  50  L.  T.  197  ;  32  W.  R.  357 
—Kay,  J. 


7.    DEALINGS    WITH    PROPERTY, 
a.  Examination — Fines  and  Recoveries  Act. 

Object  and  Effect  of  Examination.  ] — One  of  the 
essential  purposes  of  the  separate  examination  of 
a  wife  on  a  sale  and  conveyance  of  her  real  estate 
by  herself  and  her  husband  under  the  Fines  and 
Recoveries  Act  (3  &  4  Will.  4,  c.  74),  is  to  ascer- 
tain whether  the  purchase-money  is  to  belong  to 
her  husband  or  not.  Accordingly,  when  she  has 
acknowledged  the  conveyance  before  the  commis- 
sioners, and  has,  on  being  separately  examined 
by  them,  refused  any  provision  out  of  the  pur- 
chase-money or  otherwise,  she  must  be  treated  as 
having  given  up  to  her  husband  all  claim  upon 
the  purchase-money,  and  as  having  no  further 
interest  in  it  either  at  law  or  in  equity.  This  is 
the  case  even  if  the  purchase-money  or  any  part 
of  it  is  left  outstanding  in  trustees  by  way  of  an 
indemnity  fund  against  charges  on  the  estate ;  as, 
for  instance,  in  the  case  of  part  being  vested  in 
trustees  by  a  deed  of  declaration  of  trust  for  the 
purpose  of  keeping  down  an  annuity  originally 
charged  on  the  estate,  and  subject  to  which  it  is 
sold  ;  consequently,  in  such  a  case,  in  the  event 
of  the  wife  surviving  the  husband,  and  the  fund 
still  remaining  outstanding,  she  cannot,  as 
against  his  estate,  claim  the  fund  as  her  chose  in 
action  not  reduced  into  possession  by  the  husband. 
The  effect  of  a  married  woman's  acknowledg- 
ment and  separate  examination  under  the  Fines 
and  Recoveries  Act,  discussed.  Tennent  v.  Welch, 
37  Ch.  D.  622  ;  57  L.  J.,  Ch.  481 ;  58  L.  T.  368  ; 
36  W.  R.  389— Kay,  J. 

Woman  Harried  after  1870.]— The  8th  section 
of  the  Married  Women's  Property  Act,  1870,  does 
not  enable  a  woman  married  after  the  passing  of 
the  act  to  pass  by  an  unacknowledged  deed  the  fee 
simple  of  real  estate  descended  upon  her.  Obser- 
vations upon  a  dictum  of  Jeasel,  M.R.,  in  Voss, 


In  re  (13  Ch.  D.  504,  505).  Johnton  v.  Jofowm, 
35  Ch.  D.  345  ;  56  L.  J.,  Ch.  326 ;  56  L  T.  1S3 ; 
35  W.  R.  329— Stirling,  J. 

Non-concurrence  of  Husband— Husband's  In- 
terest in  Bants.] — An  order  in  the  usual  form 
obtained  under  s.  91  of  the  Fines  and  Recoveries 
Act,  1833,  by  a  married  woman,  empowering  her 
to  dispose  of  her  real  estate  without  the  con* 
currence  of  her  husband,  does  not  deprive  him 
of  the  common  law  rights  which  he  acquired  in 
the  property  by  reason  of  the  coverture. 
Where,  therefore,  under  such  an  order,  a  married 
woman  Bold  and  conveyed  all  her  estate  and 
interest  in  real  estate,  her  husband  refusing  to 
join  : — Held,  that  the  husband's  common  law 
right  to  the  rents  during  the  coverture  remained 
unaffected  by  the  wife's  alienation,  but  that  (she 
asserting  her  equity  to  a  settlement)  he  was 
bound,  whether  his  estate  was  legal  or  equitable, 
to  provide  for  her  out  of  the  rents  ;  and,  under 
the  circumstances,  the  whole  of  the  rents  were 
settled  upon  her.  Fowke  v.  Draycctt,  29  Ch.  D. 
996  ;  54  L.  J.,  Ch.  977  ;  52  L.  T.  890  ;  33  W.  B. 
701— North,  J. 

8peciflo  Performance  of  Agreement]— &* 
Cahill  v.  Cahill,  ante,  col.  915. 

Trust  for  Sale— "Bare  Trustee."]— A  testator 
devised  his  real  estate  to  trustees  for  sale,  who 
were  married  women,  one  of  them  having 
married  before  and  the  other  after  the  Married 
Women's  Property  Act,  1882.  Both  of  them  abo 
took  beneficial  interests  in  the  proceeds  of  sale. 
Under  the  judgment  in  an  action  for  the  ad- 
ministration of  the  testator's  estate,  part  of  the 
real  estate  was  sold  by  the  trustees,  the  par- 
chaser  paying  his  purchase-money  into  court  :— 
Held,  that  the  married  women  were  "bare 
trustees"  within  s.  6  of  the  Vendor  and  Pur- 
chaser Act,  1874,  and  that  the  conveyance  to  the 
purchaser  did  not  require  the  concurrence  of  the 
husbands,  or  acknowledgment  under  the  Fine* 
and  Recoveries  Act.  Docwra,  In  re,  Doctor*  v. 
Faith,  29  Ch.  D.  698 ;  54  L.  J.,  Cb.  1121;  53 
L.  T.  288  ;  33  W.  R.  574— V.-C.  B. 

Copyholds,    Covenant    to    Surrender.]  —  A. 

covenant  to  surrender  copyholds  vested  in 
husband  and  wife  in  right  of  the  wife  is  in- 
operative to  pass  the  wife's  estate,  though  by 
deed  acknowledged.  Chreen  v.  Paterw*,  33 
Oh.  D.  96  ;  56  L.  J.,  Ch.  181  ;  54  L.  T.  738 ;  & 
W.  R.  724—C.  A. 

Sale  under  Settled  Estates  Act.]— Notwith- 
standing the  provision  of  s.  50  of  the  8ettled 
Estates  Act,  1877,  that,  when  a  married  woman 
consents  to  an  application  to  the  court  under  the 
act,  she  is  to  be  examined  apart  from  ber 
husband  as  to  her  consent,  such  an  examination 
is  not  now  necessary  in  the  case  of  a  woman 
who  has  married  since  the  commencement  of  the 
Married  Women's  Property  Act,  1882.  BiddtU 
v.  j&rrington,  26  Ch.  D.  220  ;  54  L.  J.,  Ch.  293 ; 
50  L.  T.  684  ;  32  W.  R.  680— Pearson,  J. 

In  the  case  of  a  woman  married  before  the 
commencement  of  the  Harried  Women's  Property 
Act,  1882,  s.  1  of  the  act  applies  only  as  to 
property  acquired  by  her  after  the  commence- 
ment of  the  act.  Therefore,  if  such  a  woman  » 
a  petitioner,  or  a  respondent  to  a  petition,  under 
the  Settled  Estates  Act,  1877,  relating  to  property 


937 


HUSBAND    AND    WIFE. 


988 


her  interest  in  which  was  acquired  before  the 
commencement  of  the  act  of  1882,  she  must  be 
examined  separately,  as  provided  by  s.  50  of  the 
act  of  1877.  Harris**  Settled  Estates,  In  re,  28 
Ch.  D.  171 ;  64  L.  J.,  Ch.  208  ;  51  L.  T.  855  ;  33 
W.  B.  393— Pearson,  J. 

On  an  application  under  the  Settled  Estates 
Act  1877,  for  the  sanction  of  the  court  to  the 
purchase  of  certain  land  by  the  trustees  of  a 
settlement  out  of  funds  in  court  arising  from 
ales  of  the  settled  hereditaments,  the  separate 
examination  of  a  married  woman,  the  tenant  for 
life,  was  directed,  notwithstanding  s.  32  of  the 
Settled  Land  Act,  1882.  Arabics  Trusts,  In  re, 
52  L.  T.  728— Kay,  J. 

Payment  of  Fund  out  of  Court]— A  fund 
standing  to  the  separate  credit  of  a  married 
woman,  unless  married  after  the  Married 
Women's  Property  Act,  1870,  will  not  be  paid 
to  her  by  the  court,  even  on  her  separate  receipt, 
without  her  separate  examination.  Secus,  where 
the  marriage  was  after  the  act,  and  the  applicant 
takes  under  an  intestacy.  Dew  nan  v.  Deignan, 
13  L.  R.,  Ir.  278— V.  C. 


b.  In  other  Oases. 

Payment  oat  of  Dividends.] — Form  of  order 
for  payment  of  dividends  to  a  married  woman 
where  the  trust  is  for  payment  to  her  separate 
use  with  a  restraint  on  anticipation  and  no  gift 
over,  discussed  and  stated.  Stewart  v.  Fletcher, 
38  Cb.  D.  627  ;  57  L.  J.,  Oh.  765  ;  36  W.  R.  713 
-Chitty,  J. 

Absolute  Sift— Restraint  on  Anticipation.]— 
A  testatrix,  by  her  will  dated  in  1875,  gave  all 
her  real  and  personal  estate  to  trustees  upon 
trust  for  sale  and  conversion,  and,  after  payment 
<rf  debts,  to  raise  thereout  4,500/.,  and  invest  the 
same  and  hold  the  investments  upon  trust  for  R. 
for  life ;  and  declared,  after  his  death,  the 
trustees  should  stand  possessed  of  three  several 
sums  of  1,0002.,  part  of  the  4,500/.,  in  favour  of 
certain  persons  therein  named ;  as  to  the  remain- 
ing ly5(J<W.,  in  trust  for  and  to  pay  the  same  to 
B.  (a  married  woman)  for  her  sole  and  separate 
use,  and  in  the  event  of  her  death  in  the  lifetime 
of  the  testatrix  to  divide  the  same  amongBt  her 
children,  and  declared  that  the  interest  which 
any  female  might  take  under  her  will  should  be 
for  her  sole  and  separate  use  and  without  power 
to  anticipate  the  same,  and  for  which  her  receipt 
alone  should  be  a  sufficient  discharge.  The 
testatrix  died  in  1881 ;  R.  died  in  1882  :— Held, 
that  B.  was  entitled  to  have  the  capital  sum  of 
1.50W.  paid  to  her,  and  to  give  a  good  discharge 
for  the  same.  Botcn,  In  re,  O'Halloran  v.  Xing, 
27  Ch.  D.  411  ;  53  L.  J..  Ch.  881  ;  50  L.  T.  796  ; 
33  W.  R.  58— C.  A. 

Where  a  fund  subject  to  a  particular  estate  is 
given  absolutely  to  a  married  woman  with  a  re- 
ftraint  on  anticipation,  the  restraint  will  not  in 
the  absence  of  any  other  ground  be  confined  to 
the  continuance  of  that  particular  estate.  Bown, 
In  re  (27  Ch.  D.  411)  distinguished.  Tippett  and 
Xevkmld,  In  re,  37  Ch.  D.  444  ;  68  L.  T.  754  ; 
36  W.  R.  597— C.  A. 

A  testator  directed  surplus  income  of  real  and 
personal  estate,  after  providing  an  annuity,  to  be 
accumulated  during  the  life  of  his  wife ;  after 
her  death  he  gave  the  capital  to  his  children ;  he 


directed  that  the  shares  of  his  daughters  should 
be  for  their  separate  use,  without  power  of 
alienation  or  anticipation  during  the  wife's  life  : 
— Held,  that  his  married  daughters,  during  the 
life  of  their  mother,  were  entitled  to  receive  only 
the  income  of  invested  income.  Spencer,  In  ret 
Thomas  v.  Spencer,  30  Ch.  D.  183  ;  55  L.  J.,  Ch. 
80 ;  34  W.  R.  62— Pearson,  J. 


Settled  Realty— Mortgage  of  Income  ofc] 


— By  a  settlement,  dated  in  1864,  freehold 
property  was  conveyed  to  trustees  upon  trust  to 
let  the  same,  and  pay  the  rents  and  annual 

Eroceeds  to  C.  S.  W.,  a  married  woman,  during 
er  life  for  her  own  sole  and  separate  use,  free 
from  the  debts,  control,  or  engagements  of  her 
present  or  any  future  husband ;  and  "  the  receipts 
of  her  ...  for  the  said  rents  and  annual 
proceeds  to  be  given  after  the  same  shall  become 
due  "  to  be  "  good  and  effectual  discharges  "  to 
the  trustees  for  the  same ;  and  from  and  after 
the  decease  of  C.  S.  W.  then  upon  trust  to  pay 
the  rents  and  annual  proceeds  to  the  husband,  in 
case  he  survived  her,  during  his  life,  with  ulti- 
mate trusts  for  sale  and  division  amongst  the 
children  and  issue  of  C.  S.  W.  by  her  then  present 
or  any  future  husband,  as  should  be  living  at  the 
time  of  such  division.  In  1881,  C.  S.  W.  and  her 
husband  mortgaged  the  income  of  the  settled 
property  to  secure  a  loan  of  1,000/.,  and  in  1883 
they  further  charged  such  income,  together  with 
other  property,  with  the  payment  of  500/. 
Notices  of  the  mortgage  and  further  charge  were 
duly  given  to  the  trustees  of  the  settlement. 
C.  S.  W.  did  not  receive  any  of  the  moneys 
secured  thereby,  but  her  husband  received  the 
same,  and  applied  the  whole  in  payment  of  his 
own  debts.  The  question  was  whether  the 
mortgage  was  a  valid  charge  upon  the  income  of 
the  settled  property,  and  who  was  entitled  to  be 
paid  such  income  : — Held,  that  C.  S.  W.  was 
restrained  from  anticipation  and  her  receipt  was 
the  only  discharge  which  the  trustees  could 
accept.  Baker  v.  Bradley  (7  De  G.,  M.  &  G.  597) 
followed.  Smith,  In  re,  Chapman  v.  Wood,  51 
L.  T.  501— Kay,  J. 

Restraint  on  Anticipation— Mortgage — Mar- 
shalling.]— C,  a  widow,  was  entitled  to  the 
income  of  one-third  of  a  fund  in  court  for  her 
life  for  her  separate  use  without  power  of  anti- 
cipation, and  was  also  entitled  to  the  income  of 
the  remaining  two-thirds  of  the  fund  for  her 
life,  but  subject  to  certain  deductions.  She 
mortgaged  all  her  interest  in  the  fund,  and  some 
policies  of  assurance  on  her  life  to  F.,  and  an 
order  was  made  for  payment  of  the  income  of 
the  mortgaged  property  to  him.  C.  then  married 
M. ;  and  after  her  marriage  she  charged  all  her 
interest  in  the  fund  in  favour  of  P.  After  this 
T.  obtained  a  judgment  against  her,  and  the 
appointment  of  a  receiver  of  her  separate  estate. 
The  income  received  by  F.  was  more  than  suffi- 
cient for  payment  of  the  interest  on  his  mort- 
gage and  the  premiums  on  the  policies,  and  he 
did  not  desire  to  reduce  his  principal : — Held, 
that  as  between  F.  and  the  subsequent  incum- 
brancers of  the  fund,  there  ought  to  be  a  mar- 
shalling of  securities,  and  that  F.  ought  to  pay 
the  interest  on  his  mortgage  and  the  premiums 
on  the  policies  out  of  the  income  of  the  one-third 
with  respect  to  which  the  restraint  on  anticipa- 
tion existed,  so  as  to  leave  the  income  of  the 
remaining  two-thirds  to  satisfy  the  subsequent 


939 


HUSBAND    AND    WIFE. 


940 


incumbrances.    Loder's  Trusts,  In  re,  56  L.  J., 
Ch.  230  ;  55  L.  T.  582  ;  35  W.  R.  58— North,  J. 

Will— Future  Separate  Estate— Aieent  of  Hus- 
band.]— The  will  of  a  married  woman  who  had 
no  personal  estate  belonging  to  her  for  her 
separate  use  at  the  date  of  the  will,  made  without 
the  assent  of  her  husband,  is  effectual  to  dispose 
of  personal  estate  to  her  separate  use  which  she 
afterwards  acquires  and  is  entitled  to  at  her 
death.  Charlemont  (Earl)  v.  Spencer,  11  L.  R., 
Ir.  490— C.  A. 


Renunciation  of  Marital  Rights— Real 


Estate.] — Mere  renunciation  by  an  intended 
husband  of  his  marital  rights  in  his  wife's  real 
property  is  not  sufficient  to  clothe  her  with  a 
testamentary  power,  or  to  constitute  a  valid 
declaration  of  tmst  of  the  fee.  And  upon  the 
death  of  the  wife  without  issue  during  her  hus- 
band's lifetime,  her  heir-at-law,  and  not  her 
devisee,  will  be  entitled  to  the  land  of  which  she 
is  seised  in  fee  simple.  Rippon  v.  Dawding 
(Ambl.  565)  commented  on.  Dye  v.  Dye,  13 
Q.  B.  D.  147  ;  53  L.  J.,Q.  B.  442  ;  51  L.  T.  145  ; 
33  W.  R.  2— C.  A. 


Property  acquired  after   Coverture.] — 


6.  1,  sub-s.  1,  of  the  Married  Women's  Property 
Act,  1882,  gives  a  married  woman  power  to  dis- 
pose by  will  only  of  property  of  which  she  is 
seised  or  possessed  while  she  is  under  coverture. 
Consequently,  notwithstanding  s.  24  of  the 
Wills  Act,  her  will  made  during  coverture  is  not, 
unless  it  is  re-executed  after  she  has  become 
discovert,  effectual  to  dispose  of  property  which 
she  acquires  after  the  coverture  has  come  to  an 
end.  Price,  In  re,  Stafford  v.  Stafford,  or 
Price  v.  Stafford,  28  Ch.  D.  709  ;  54  L.  J.,  Ch. 
509 ;  52  L.  T.  430 ;  33  W.  R.  20— Pearson,  J. 

Banking  accounts  were  kept  in  the  joint  names 
of  husband  and  wife,  and  investments  in  railway 
stock  were  made  in  their  joint  names.  The  wife 
survived  her  husband  five  days,  having  executed 
a  will  during  coverture  : — Held,  that  the  balances 
of  the  joint  accounts  and  the  joint  investments 
survived  to  the  wife,  but  did  not  pass  under  her 
will.  Young,  In  re,  Trye  v.  Sullivan,  28  Ch.  D. 
705  ;  54  L.  J.,  Ch.  1065  ;  62  L.  T.  754  ;  33  W.  R. 
729— Pearson,  J. 


Statute    for    promoting    Erection    of 


out  of  personal  estate  which  was  legally  applic- 
able for  the  purpose,  was  held  to  be  invalid. 
Smith's  Estate,  In  re,  Clements  v.  Ward.  35  Ch. 
D.  689 ;  56  L.  J.,  Ch.  726 ;  56  L.  T.  850;  35 
W.  R.  514  ;  51  J.  P.  692— Stirling,  J. 

Appointment  by  Will — Conversion,]— 


There  is  a  distinction  between  a  will  made  by  a 
married  woman  under  a  power  and  when  dis- 
posing of  property  in  her  own  right  as  a  feme 
sole.  The  power  must  be  looked  at  to  see  in  what 
character  the  property  was  held  when  disposed 
of  by  the  testator,  and  where  by  virtue  of  the 
power  it  has  been  converted  into  personalty,  she 
is  in  fact  disposing  of  personalty.  Ounn,  In 
goods  of,  9  P.  D.  242  ;  53  L.  J.,  P.  107  ;  33  W.R. 
169  ;  49  J.  P.  72— Hannen,  P. 

Probate  to  Wills  of  Harried  Women.]—  See 
Will  (Probate). 


IX.  ACTIONS  AKD  PROCEEDINGS  BY  AID 
AGAINST  MARRTKD  WOKEN. 

Suing  Alone — Tort  committed  before  1888.]— 

A  married  woman  is  entitled  under  the  Married 
Women's  Property  Act,  1882,  8.  1 ,  sub-s.  2,  to 
bring  an  action  in  respect  of  a  tort  committed 
upon  her  during  coverture  before  the  commence- 
ment of  the  act,  without  joining  her  husband  as 
plaintiff.  Weldon  v.  Winslow,  13  Q.  S.  D.  784: 
53  L.  J. ,  Q.  B.  528  ;  51  L.  T.  643  ;  33  W.  B.  219 
— C.  A. 

The  Married  Women's  Property  Act,  1882, 
does  not  enable  a  married  woman  to  bring  an 
action  for  an  assault  committed  upon  her  during 
coverture  before  the  passing  of  the  act  without 
joining  her  husband.  Weldon  v.  Riviere,  53  L.  J., 
Q.  B.  448—  D.    But  see  preceding  case. 


Tort  when  barred  by  Statute  of  Limits- 


Churches — Married  Women,  without  their  Hus- 
bands, excepted.]— Under  the  statute  43  Geo.  3, 
c.  108,  v*hich  contained  a  power  to  all  persons 
having  an  interest  in  any  lands  or  in  any  goods 
or  chattels,  to  give  by  deed  enrolled,  or  will 
executed,  three  months  before  death,  lands  not 
exceeding  five  acres,  or  goods  and  chattels  not 
exceeding  in  value  500/.,  for  or  towards  the 
erecting  of  any  church,  with  a  proviso  that  the  j 
Act  should  not  extend  to  any  persons  being 
within  age,  nor  women  covert  without  their 
husbands  to  make  any  such  gift : — Held,  that 
the  proviso  was  not  affected  by  the  Married 
Women's  Property  Act,  1882,  which  by  s.  1, 
sub-s.  1,  gave  power  to  married  women  to 
dispose  by  will  of  any  real  or  personal  property 
as  ner  separate  property  in  the  same  manner  as 
if  she  were  a  feme  sole.  Consequently  a  gift  by  ! 
a  married  woman, by  will  executed  three  months 
before  death,  to  the  vicar  and  churchwardens  of 
a  church  of  a  sum  of  3001.  to  be  applied  by  them 
in  the  erection  of  a  new  church,  and  to  be  paid 


tions.] — The  right  of  a  married  woman  whose 
husband  is  alive  to  bring  an  action  in  her  own 
name,  dates  from  the  commencement  of  the 
Married  Women's  Property  Act,  1882  (January  1, 
1883).  For  that  purpose  she  is  a  feme  discovert 
within  the  Statute  of  Limitations  (21  Jac  1, 
c.  16),  and  she  may  within  the  statutable  limits 
from  that  date  bring  an  action  for  a  cause  which 
accrued  many  years  previously  to  that  date  while 
she  was  a  married  woman.  Weldon  v.  Neal,  51 
L.  T.  289  ;  32  W.  R.  828— D. 

The  effect  of  the  Married  Women's  Property 
Act,  1882,  is  to  make  a  married  woman  discovert 
from  the  date  of  the  passing  of  the  act  in  respect 
of  torts  committed  against  ner  during  coverture, 
and  she  is  entitled  to  bring  an  action  in  respect 
of  a  tort  committed  during  coverture  and  before 
1882,  which  would  otherwise  be  barred  by  21 
Jac.  1,  c.  16,  s.  3  ;  for  that  statute  begins  to  ran 
only  from  the  date  of  the  passing  of  the  act  of 
1882.  Lowe  v.  Fox,  15  Q.  B.  D.  667  ;  54  L.  J., 
Q.  B.  561  ;  63  L.  T.  886  ;  34  W.  R.  144  ;  50  J.  P. 
244— C.  A. 

House  8ettled  to  Separate  Use— Husband 


Claiming  Bight  —  Interim  Injunction.]-— On  a 
marriage  a  leasehold  house  was  settled  upon 
the  usual  trusts  for  the  wife  for  life,  for  her 
separate  use,  and  the  husband  and  wife  continued 
to  reside  in  the  house.  Differences  arose  between 
them,  they  ceased  to  cohabit,  and  the  wife  insti- 
tuted proceedings  for  divorce  or  judicial  separt- 


941 


HUSBAND    AND    WIFE. 


942 


tion.  The  husband  claimed  the  right  to  go  to 
and  to  use  the  house  when  and  as  he  thought  fit, 
not  for  the  purpose  of  consorting  with  his  wife, 
bat  for  his  own  purposes.  In  an  action  by  the 
wife  against  the  trustees  and  her  husband,  claim- 
ing administration  of  the  trusts  of  the  settlement 
and  an  injunction  to  restrain  the  husband  from 
entering  the  house  : — Held,  that,  under  the  cir- 
cumstances, the  wife  was  entitled  to  an  interim 
injunction.  Symondg  v.  Hallett,  24  Ch.  D.  346  ; 
53  L  J.,  Ch.  60  ;  49  L.  T.  380  ;  32  W.  R.  103— 
C.  A.   And  see  next  case. 

—  House  in  Sole  Occupation  of  Wife  as 
tar  Separate  Property— Trespass.]— A  married 
woman  in  the  sole  occupation  of  a  house,  bought 
by  her  out  of  her  own  earnings,  since  the  Married 
Women's  Property  Act,  1870,  can  now,  after  the 
Married  Women's  Property  Act,  1882,  sue  alone, 
without  her  husband,  in  an  action  for  trespass, 
a  person  who  has  entered  such  house  against  her 
will,  though  he  did  no  injury  to  the  house,  and 
entered  it  with  the  authority  of  her  husband, 
bat  for  a  purpose  unconnected  with  the  hus- 
band's desire  to  lire  with  his  wife  : — Quaere,  if 
the  husband  has  himself  a  right  to  enter  such 
boose.  Weldon  v.  Be  Bathe,  14  Q.  B.  D.  339  ; 
M  L.  J.,  Q.  B.  113;  63  L.  T.  520;  33  W.  R. 
328-C.  A. 

- —  Per  Arrears  of  Maintenance  under  Sepa- 
ration Agreement.] — See  Macgregor  v.  Macgregor, 
ante,  coL  916. 

liability  for  Tort  after  Marriage.]  —  The 
plaintiff  may  sue  the  wife  alone  or  the  husband 
and  wife  jointly  for  wrongs  committed  by  her 
after  marriage.  Seroka  v.  Kattenburg,  1 7  Q.  B.  D. 
177 ;  55  L.  J.,  Q.  B.  375  ;  54  L.  T.  649  ;  34  W.  R. 
542-D. 

Liability  for  Money  Lent  by  Husband  after 
larriage.]— See  Butler  v.  Butler,  ante,  col.  915. 

Gurdian  ad  litem  of  Infant— Next  Friend.]— 
Notwithstanding  the  Married  Women's  Property 
Act,  1882,  a  married  woman  is  still  incompetent 
to  act  as  next  friend  or  guardian  ad  litem. 
Smenet  (Duke),  In  re,  Tkynne  v.  St.  Maur, 
J4  Ch.  D.  465  ;  56  L.  J.,  Ch.  733  ;  56  L.  T. 
145 ;  35  W.  R.  273— Chitty,  J. 

Criminal  Proceedings— Wife  against  Husband 
—Defamation.  ] — A  wife  could  not  before  and 
cannot  since  the  Married  Women's  Property  Acts 
take  criminal  proceedings  against  her  husband 
for  defamatory  libel.  Reg.  v.  London  (Mayor), 
16  Q.  B.  D.  772  ;  65  L.  J.,  M.  C.  118 ;  54  L.  T. 
7«l ;  34  W.  R.  544  ;  60  J.  P.  614 ;  16  Cox,  C.  C. 
H-D. 

- — -  Husband  and  Wife — Coercion.] — Upon 
in  indictment  for  highway  robbery  with  violence 
0.  and  his  wife  were  found  guilty,  the  jury 
fading  as  to  the  wife  that  she  had  acted  under 
the  compulsion  of  her  husband  : — Held,  that  as 
to  the  wife  the  verdict  amounted  to  one  of  not 
tfulty.  Reg.  v.  Dyke*,  15  Cox,  C.  C.  771— 
Stephen,  J. 

Husband  taking  Wife's  Money.]— It  is 

no  offence  for  a  husband  to  take  his  wife's  money 
while  they  are  living  together  ;  sed  aliter  while 
*hey  are  living  apart.  Lemon  v.  Simmon*,  bl 
L.  J.,  Q.  B.  260  ;  36  W.  R.  351— D. 


Next  Friend— Liability  for  Costs.]— A  next 
friend,  as  long  as  he  remains  upon  the  record  as 
next  friend,  must  be  taken  to  be  carrying  on  the 
proceedings  on  behalf  of  the  plaintiff,  and  is 
liable  for  the  costs  of  an  appeal,  even  though 
the  notice  of  appeal  did  notjpurport  to  be  given 
by  him.  Glanvill,  In  re,  Ellu  v.  Johnson,  31 
Ch.  D.  532  ;  55  L.  J.,  Ch.  325  ;  54  L.  T.  411  ;  34 
W.  R.  309  ;  50  J.  P.  662— C.  A. 


Security  for  Costs.] — A  married  woman 


by  her  next  friend  took  out  an  originating 
summons  for  an  administration  of  a  testator's 
estate,  upon  which  an  order  was  made  without 
prejudice  to  any  application  by  the  defendants 
as  to  security  for  costs.  The  defendants  applied, 
and,  on  the  ground  that  the  next  friend  was  not 
a  person  of  substance,  an  order  was  made  staying 
proceedings  till  the  plaintiff  had  given  security 
for  costs.  The  plaintiff  appealed  on  the  ground 
that  a  married  woman  could  not  be  ordered  to 
find  security  for  costs  : — Held,  that,  although  a 
married  woman  suing  alone  cannot  be  ordered  to 
find  security  for  costs  on  the  ground  of  poverty, 
security  had  rightly  been  ordered  in  the  present 
case,  since  the  next  friend  alone  was  liable  for 
them,  and  that  the  plaintiff  after  obtaining  a 
judgment  by  her  next  friend  was  too  late  to 
claim  to  sue  alone.  Thompson,  In  re,  Steven*  v. 
Thompson,  38  Ch.  D.  317  ;  57  L.  J.,  Ch.  748  ;  59 
L.  T.  427— C.  A. 

Security  for  Costs.] — A  married  woman,  suing 
alone,  and  having  no  separate  estate,  will  not  be 
ordered  to  give  security  for  costs.  Isaac,  In  re, 
Jacob  v.  Isaac,  30  Ch.  D.  418 ;  54  L.  J.,  Ch.  1 136 ; 
53  L.  T.  478 ;  33  W.  R.  845— C.  A.  And  see 
preceding  case. 

Undertaking  as  to  Damages — Injunction^ — 
An  application  was  made  on  behalf  of  a  manned 
woman  for  an  injunction  restraining  the  Bank 
of  England,  until  further  order,  from  permitting 
the  transfer  of  a  sum  of  New  Three  per  Cent. 
Annuities,  standing  in  the  names  of  the  executors 
of  a  testator,  and  to  which  the  married  woman 
claimed  to  be  beneficially  entitled.  An  injunc- 
tion was  granted  for  a  fortnight  on  the  usual 
undertaking  of  the  married  woman  to  be  answer- 
able in  damages.  The  registrar  refused  to  draw 
up  the  order  on  the  sole  undertaking  of  the 
married  woman  as  to  damages  : — Held,  that  the 
sole  undertaking  of  the  married  woman  must  be 
accepted.  Prynne,  In  re,  53  L.  T.  465— Pear- 
son, J.  See  also  Hunt  v.  Hunt,  ante,  col. 
928. 

Affidavit  of  Documents — Husband  and  Wife.] 
— A  husband  and  wife  sued  as  co-plaintiffs  in 
respect  of  an  alleged  breach  of  trust  by  the 
trustees  of  their  marriage  settlement.  The  wife 
had  a  life  estate  for  her  separate  use,  and  sued 
without  a  next  friend.  An  order  was  made  that 
the  plaintiffs  should  file  an  affidavit  stating 
"  whether  they  or  either  of  them  "  had  in  the 
possession  or  power  "  of  them  or  either  of  them," 
any  documents  relating  to  the  matters  in  ques- 
tion. They  filed  an  affidavit  admitting  the 
possession  of  various  documents,  which  they 
scheduled,  and  going  on  to  say,  "  We  have  not 
now,  and  never  had  in  our  possession,  custody, 
or  power,  or  in  the  possession,  custody  or  power 
of  any  other  person  or  persons  on  our  behalf,  any 
deed,  &c,  other  than  and  except  the  documents 


943 


HUSBAND    AND    WIFE. 


044 


Bet  forth  in  the  said  schedule  "  : — Held,  that  the 
plaintiffs  must  be  ordered  to  file  a  further  and 
better  affidavit,  for  that  an  affidavit  relating 
only  to  documents  in  the  joint  custody  of  the 
husband  and  wife  did  not  comply  with  the  order, 
and  that  the  order  was  right  in  requiring  them 
to  answer  as  to  documents  in  the  possession  of 
either  of  them.  Fendall  v.  O'  Connell,  29  Ch.  D. 
899  ;  54  L.  J.,  Ch.  756  ;  52  L.  T.  553  ;  33  W.  R. 
619— C.  A. 

Third  Party — Judgment  against  —  Berating 
to  state  Defence.] — Judgment  may  be  ordered, 
under  Ord.  XVI.  r.  62,  against  a  third  party  who 
has  appeared  after  a  thud-party  notice  has  been 
served  on  him,  if  the  third  party,  on  the  hearing 
of  an  application  for  directions,  declines  to  state 
any  defence,  and  if  the  judge  is  not  satisfied  that 
there  is  any  question  proper  to  be  tried.  Such 
judgment  may  be  ordered  against  a  married 
woman  as  a  feme  sole  declaring  her  separate 
estate  liable,  although  the  liability  was  incurred 
prior  to  the  passing  of  the  Married  Women's 
Property  Act,  1882.  Gloucestershire  Banking 
Company  v.  Phillip*,  12  Q.  B.  D.  533  ;  53  L.  J., 
Q.  B.  493  ;  50  L.  T.  360 ;  32  W.  B.  522— D. 

Bight  of  Proof  against  Husband's  Estate.]— 
H.  was  married  to  his  wife  in  1864,  and  she 
subsequently  became  entitled  to  certain  moneys 
under  the  wills  of  her  father  and  grandfather. 
These  moneys  she  lent  to  her  husband  for  the 
purposes  of  his  business,  upon  the  terms  that  he 
would  execute  a  settlement  of  the  moneys  upon 
her,  which  was  done.  Upon  the  bankruptcy  of 
H.  a  proof  was  tendered  upon  the  settlement 
and  rejected : — Held,  that  the  settlement  was 
not  invalidated  by  s.  3  of  the  Married  Women's 
Property  Act,  1882,  since  that  section  was  not 
retrospective  and  could  not  affect  previously 
existing  rights.  Home,  Ex  parte,  Home,  In  re, 
54  L.  T.  301 — Cave,  J.  And  see  Bankruptcy, 
IX.,  3. 

Order  of  Committal —Jurisdiction — Debtors 
Act,  1860,  s.  6.] — Under  s.  5  of  the  Debtors  Act, 
1869,  there  is  no  power  to  commit  to  prison  a 
married  woman  for  her  default  in  paying  a  sum 
for  which  judgment  has  been  recovered  against 
her  by  virtue  of  s.  1,  sub-s.  (2),  of  the  Married 
Women's  Property  Act,  1882.  Scott  v.  Morley, 
20  Q.  B.  D.  120  ;  67  L.  J.,  Q.  B.  43  ;  57  L.  T.  919  ; 
36  W.  R.  67 ;  52  J.  P.  230 ;  4  M.  B.  R.  286— 
C.  A. 

Judgment  for  a  debt  and  costs  was  recovered 
against  a  married  woman,  execution  being,  by 
the  terms  of  the  judgment,  limited  to  her  sepa- 
rate property  not  subject  to  any  restraint  upon 
anticipation,  unless  by  reason  of  the  Married 
Women's  Property  Act,  1882.  such  property 
should  be  liable  to  execution  notwithstanding 
such  restraint.  Upon  an  application  for  an 
order  of  committal  against  her  under  s.  5  of  the 
Debtors  Act,  1869,  the  only  evidence  of  her 
ability  to  pay  was  that  since  the  date  of  the 
judgment  she  had  received  sufficient  income  of 
separate  property  subject  to  a  restraint  upon 
anticipation : — Held,  that  no  order  could  be 
made  against  her  upon  that  evidence,  because 
s.  5  did  not  apply  to  the  judgment.  Draycott 
or  Darraeott  v.  Harrison,  17  Q.  B.  D.  147  ;  34 
W.  B.  546— D. 

Upon  a  judgment  summons  issued  under  8.  6  of 
the  Debtors  Act,  1869,  against  a  married  woman 


who  has  only  separate  estate  which  she  is  re* 
strained  from  anticipating,  an  order  for  payment 
cannot  be  made  unless  it  is  shown  that,  since  the 
date  of  the  judgment,  she  has  received  some  of 
her  separate  income.  If  in  the  judgment  execu- 
tion is  limited  to  separate  estate  which  she  is 
not  restrained  from  anticipating,  quaere,  whether 
s.  5  of  the  Debtors  Act,  1869,  applies  at  all 
Dillon  v.  Cunningham  (8  L.  B.,  Ex.  23)  distin- 
guiBhed.  Meager  v.  Pellew,  or  Meager,  Exports, 
Pellew,  In  re,  14  Q.  B.  D.  973  ;  53  L.  T.  67 ;  33 
W.  B.  573— C.  A. 

An  order,  under  the  Debtors  Act,  for  payment 
by  instalments  will  not  be  made  against  a  mar- 
ried woman  whose  only  separate  estate  is  subject 
to  restraint  on  anticipation,  even  though,  since 
the  date  of  the  judgment  against  her,  she  has 
received  income  of  the  separate  estate.  Morgan 
v.  Eyre,  20  L.  B.,  Ir.  541— Q.  B.  D. 

Whether  can  be  made  Bankrupt] — A  married 
woman,  possessed  of  separate  estate,  but  not 
carrying  on  a  trade  separately  from  her  hus- 
band, is  not  subjected  to  the  operation  of  the 
bankruptcy  laws,  and  cannot  commit  an  act  of 
bankruptcy  under  s.  4  of  the  Bankruptcy  Act, 
1883.  Coulson,  Ex  parte,  Gardiner,  In  re,  20 
Q.  B.  D.  249  ;  57  L.  J.,  Q.  B.  149  ;  58  L.  T.  119; 
36  W.  R.  142 ;  5  M.  B.  R.  1— D. 

Property  in  Bankruptcy.]— &i  Bankruptcy, 
VIII.,  l,g. 


X    MARRIAGE  8ETTLEKEVT8. 

1,  WHAT  INCLUDED  IN. 

a.  After-aoquired  Property. 

Judicial  Separation— Effect  of,  upon  Cove- 
nant.]— Where  a  marriage  settlement  contained 
a  covenant  to  settle  all  property  (except  jewel- 
lery and  money  up  to  200/.)  which  the  wife,  or 
her  husband  in  her  right,  might  acquire  u  during 
the  intended  coverture,"  and  after  a  decree  far 
judicial  separation  the  wife  became  entitled  to 
certain  stocks : — Held,  that  by  virtue  of  s.  So 
of  the  Divorce  Act,  1857,  the  stocks  belonged  to 
i  her  as  a  feme  sole,  and  that  the  covenant  to 
.  settle  "during  the  coverture"  had  become  in- 
J  operative.     Dawes  v.  Creyke,  30  Ch.  D.  600 ;  54 
L.  J.,  Ch.  1096 ;  53  L.  T.  292  ;  33  W.  B.  86i>- 
V.-C.  B. 


Gift  with  Bestraint  on  Anticipation.] -A 

restraint  on  anticipation  is  equivalent  to  i 
restraint  on  alienation,  and  accordingly  the 
shares  of  married  women  in  residuary  real  aod 
personal  estate  given  to  them  by  will  for  their 
separate  use  without  power  of  anticipation,  are 
not  bound  by  covenants  for  settlement  of  after- 
acquired  property  contained  in  their  respective 
marriage  settlements;  and  the  capital  of  the 
personal  estate  is  not  payable  to  them  on  tbeir 
separate  receipt.  Currey,  In  re,  Gibmm  *• 
Way,  32  Ch.  D.  361  ;  55  L.  J.,  Ch.  906 ;  54  L.  T. 
665  ;  34  W.  R.  541— Chitty,  J. 

Gift  for  Separate  Use.] — In  a  marriage  settle- 
ment in  which  there  were  no  recitals,  ***  J"! 
tended  husband  covenanted  with  the  intended 
wife  and  the  trustees  that  he  would,  at  the 
request  of  the  trustees  or  trustee  for  the  time 


J 


946 


HUSBAND    AND    WIFE, 


946 


being  join  with  the  wife  in,  or  otherwise  do,  all 
such  acts  as  might  be  required  on  his  part  in 
settling  the  after-acquired  property  of  the  wife. 
And  it  was  thereby  agreed  and  declared  that,  in 
the  meantime  until  such  settlement  should  be 
made,  the  property  should  be  held  upon  the 
trusts  upon  which  the  same  was  thereby  cove- 
Muted  to  be  settled : — Held,  that  property  to 
which  the  wife  bad  become  entitled  during  the 
marriage  for  her  separate  use  was  not  bound  by 
the  covenant.  Macpher son's  Estate,  In  re,  Mac- 
jiArrwwi  v.  Macphersan,  55  L.  J.,  Ch.  922  ;  55 
L  T.  346— Kay,  J. 

lo  Covenant  by  Wife— Recitals.] — A  marriage 
settlement  contained  a  recital  of  an  agreement 
that  all  such  personal  estate  above  a  certain 
value  as  should  during  the  coverture  be  given  or 
bequeathed  to  or  otherwise  vest  in  the  wife 
should  be  settled,  and  that  the  husband  should 
enter  into  the  covenant  in  that  behalf  therein- 
after contained.  The  corresponding  operative 
part  of  the  deed  was  a  covenant  by  the  husband 
alone  (without  the  usuai  words  "It  is  hereby 
agreed  ")  that  he  and  his  wife  would  settle  such 
property,  and  that  until  such  settlement  the 
husband  and  wife  should  stand  possessed  of  the 
ante  upon  the  trusts  of  the  settlement.  The 
wife  as  well  as  the  husband  executed  this  settle- 
ment, and  during  the  coverture  property  was 
given  to  the  wife  for  her  separate  use  : — Held, 
that  the  operative  words  were  sufficiently  am- 
biguous to  enable  the  court  to  look  at  the 
recitals,  and  that  on  the  whole  instrument  the 
wife's  after-acquired  separate  property  was 
bound  by  the  covenant.  Be  Rati1  Trust,  In  re, 
Htrdwicke  v.  U'ilmot,  31  Ch.  D.  81  ;  55  L.  J,, 
Ch.  73 ;  53  L.  T.  524 ;  34  W.  R.  36— Kay,  J. 

Covenant  of  Wife  as  well  as  Husband— Rever- 
sionary Interest.] — By  a  marriage  settlement  it 
wm  agreed  and  declared  by  the  parties  thereto, 
and  the  husband  covenanted  with  the  trustees 
of  the  settlement  that  all  such  property  as  the 
wife  should  at  the  date  of  her  marriage,  or  as 
the  should  become  during  coverture,  seised,  pos* 
teased  of,  or  entitled  to,  should,  so  far  as  their 
respective  rights,  interests  or  powers  over  the 
■une  would  allow,  be  conveyed  and  assigned  to 
the  trustees  of  the  settlement.  The  wife  was 
entitled  at  the  date  of  her  marriage  to  a  vested 
reversionary  interest.  The  reversion  fell  in  after 
the  death  of  the  husband  and  wife  : — Held,  that 
the  covenant  was  a  covenant  of  the  wife  as  well 
**  by  the  husband,  and  that  the  reversionary 
interest  was  included  therein.  D'Estampes,  In 
if,  VEttampe*  v.  Hankey,  53  L.  J.,  Ch.  1117 ; 
«  L.  T.  502  ;  32  W.  R.  978— Kay,  J. 

Agreement  of  even  Date.]— By  an  ante-nuptial 
tettlemeot  a  lady  and  her  intended  husband, 
ftfter  reciting  a  settlement  of  even  date,  and 
that  the  parties  had  agreed  to  settle  other  pro- 
perty to  which  the  lady  "  may  be  entitled," 
covenanted  that,  in  case  the  lady  "should  be 
entitled  to  any  property  other  than  that  in  the 
settlement,  the  same  should  be  settled  upon  simi- 
lar trusts  to  those  contained  in  the  settlement : " 
—Held,  that  the  agreement  included  after-ac- 
<piTed  property  of  the  lady.  BlocUey.  In  re, 
BUckley  v.  BloekUy,  49  L.  T.  805 ;  32  W.  R. 
386— Pearson,  J. 

ttwt  of  Married  Women's  Property  Act,  1882 


— Property  acquired  since  1882.] — A  testatrix, 
dying  in  1883,  bequeathed  the  residue  of  her 
personal  estate  to  her  daughter,  a  married  woman, 
absolutely.  The  daughter,  by  her  marriage  set- 
tlement in  1862,  covenanted  to  settle  after- 
acquired  property  (except  interests  limited  to 
her  separate  use),  upon  the  trusts  of  the  settle- 
ment :— Held,  that  s.  19  of  the  Married  Women's 
Property  Act,  1882,  exempted  the  marriage  set- 
tlement from  the  operation  of  s.  5,  and  that  the 
fund  representing  tne  residuary  personalty  was 
payable  to  the  trustees  of  the  settlement.  Stonor's 
Trusts,  In  re,  24  Ch.  D.  195 ;  52  L.  J.,  Ch.  776  ; 
48  L.  T.  963  ;  32  W.  R.  413— Pearson,  J. 

By  ante-nuptial  settlement  of  1873  the  hus- 
band and  wife  covenanted  to  settle  after-acquired 
property  of  the  wife  other  than  personal  chattels, 
savings  out  of  her  separate  income,  or  any  moneys 
not  exceeding  in  each  case  the  value  of  1,0002., 
"  or  any  property  belonging,  or  which  may  be 
given  or  bequeathed  to  or  settled  upon  her  for 
her  separate  use,  all  which  excepted  articles  and 
property  shall  belong  to  the  said  (wife)  and  shall 
or  may  be  used,  enjoyed,  and  disposed  of  by  her 
accordingly  as  if  she  were  not  under  coverture." 
Under  the  will,  made  in  1884,  of  her  father,  who 
died  in  the  same  year,  the  wife  became  entitled 
to  a  share  of  personalty  exceeding  1,000Z.,  and 
not  limited  to  her  separate  use : — Held,  that 
having  regard  to  s.  19  of  the  Married  Women's 
Property  Act,  1882— the  effect  of  which  is  to 
limit  the  operation  of  8.  5  by  preventing  the 
provisions  of  marriage  settlements  from  being 
interfered  with  or  affected  by  withdrawing 
therefrom  property,  which  independently  of  the 
act  must  have  been  brought  into  settlement — 
the  Bhare  of  the  wife  under  her  father's  will  had 
not  been  made  separate  estate  so  as  to  fall  within 
the  exception,  but  was  bound  by  the  covenant 
to  settle  after-acquired,  other  than  separate, 
property.  And,  semble,  per  Cotton,  L.J.,  that 
upon  the  construction  oi  the  covenant,  inde- 
pendently of  s.  19,  the  property  in  question  was 
not  within  the  exception.  Stonor's  Trusts,  In 
re  (24  Ch.  D.  195)  approved.  Whitaker,  In  re, 
Christian  v.  Whitaker,  34  Ch.  D.  227  ;  56  L.  J., 
Ch.  251 ;  56  L.  T.  34  ;  35  W.  R.  217— C.  A. 

By  a  post-nuptial  settlement  made  in  1847,  it 
was  agreed  and  declared  by  and  between  the 
husband,  wife,  and  trustees,  and  the  husband 
covenanted,  that  all  property  to  which  the  wife, 
or  her  husband  in  her  right,  was  then  or  should 
during  the  coverture  become  possessed  of  or  en- 
titled to,  should  be  assured  upon  trust  for  the 
wife  for  life  to  her  separate  use  without  power 
of  anticipation,  and  after  her  death  upon  trusts 
in  favour  of  the  husband  and  issue  of  the  mar- 
riage. During  the  coverture,  property  of  the 
wife  was  reduced  into  possession  by  the  husband, 
and  settled  upon  the  trusts  of  the  settlement.  In 
1883  the  wife  became  entitled,  as  one  of  the 
next-of-kin  of  a  deceased  testator,  to  a  share  of 
undisposed-of  personalty  : — Held,  first,  that  the 
operation  of  8.  5  of  the  Married  Women's  Pro- 
perty Act,  1882,  conferring  on  women  married 
before  the  1st  of  January,  1883,  the  right  to 
hold  and  dispose  of  as  their  separate  property  all 
real  and  personal  property  accruing  after  that 
date,  was  not  displaced  by  s.  19  of  the  act, 
which  saves  "  any  settlement  or  agreement  for 
a  settlement  made  or  to  be  made,  whether  before 
or  after  marriage,  respecting  the  property  of  any 
married  woman  ; "  but  that  s.  19  referred  only  to 
settlements  made  by  and  binding  upon  married 


947 


HUSBAND    AND    WIFE. 


948 


women  ;  and,  therefore,  that  the  settlement,  so 
far  as  it  purported  to  be  made  by  the  wife, 
being  void,  the  wife  was  entitled  to  the  undis- 
posed-of  personalty  as  her  separate  property. 
Stonor's  Trust*.  In  re  (24  Ch.  D.  195)  distin- 
guished. Secondly,  that  the  wife  could  be  put 
to  her  election,  notwithstanding  that  the  com- 
pensating fund  was  subject  to  restraint  on  anti- 
cipation. Qucadc's  Trusts,  In  re,  54  L.  J.,  Ch. 
786  ;  53  L.  T.  74  ;  33  W.  R.  816— Chitty,  J. 

The  effect  of  s.  19  of  the  Married  Women's 
Property  Act,  1882,  is  so  to  modify  the  operation 
of  s.  5,  that  the  persons  interested  under  a  settle- 
ment of  the  property  of  a  married  woman  are 
not  by  8. 5  deprived  of  any  benefit  to  which  they 
would  have  been  entitled  under  the  settlement 
in  case  s.  5  had  not  been  enacted.  Hancock  v. 
Hancock,  38  Ch.  D.  78 ;  57  L.  J.,  Ch.  396  ;  58 
L.  T.  906  ;  36  W.  R.  417— C.  A. 

An  ante-nuptial  settlement  executed  in  1870, 
contained  a  covenant  by  the  husband  with  the 
trustees  that  he  would  settle,  or  concur  with 
the  wife  in  settling,  any  property  which  during 
the  coverture  should  come  to  her  or  to  him  in 
her  right.  The  settlement  did  not  contain  any 
such  covenant  by  the  wife,  or  any  joint  agree- 
ment or  declaration  to  that  effect.  In  1883,  on 
the  death  of  the  wife's  mother,  the  wife  became 
entitled  under  her  will  to  a  share  of  the  mother's 
personal  estate,  which  was  not  limited  by  the 
will  to  the  separate  use  of  the  wife  : — Held,  that 
this  share  was,  notwithstanding  the  Act  of  1882, 
bound  by  the  covenant  in  the  settlement. 
Qv€ade's  Trusts,  In  rr  (supra),  disapproved. 
lb. 

Property  acquired  "  by  purchase  "— Shares- 
Policy  of  Insurance.] — A  marriage  settlement 
contained  a  covenant  by  the  settlor  to  settle  his 
estate  and  interest  in  any  property  or  estate,  real 
or  personal,  of  or  to  which  he  should,  at  any 
time  thereafter  during  marriage,  become  possessed 
or  entitled  by  devise,  bequest,  purchase,  or  other- 
wise. He  afterwards  purchased  some  shares  and 
effected  some  policies  of  insurance  on  his  life  : — 
Held,  that  the  covenant  in  the  settlement  was  in 
fact  divisible,  and  that  the  shares  and  policies 
were  "  property,"  and  property  of  or  to  which 
the  settlor  had  "during  the  marriage  become 
possessed  or  entitled  by  purchase"  within  the 
specific  words  of  the  covenant.  Whether  the 
covenant  would  have  been  capable  of  enforce- 
ment if  it  were  in  fact  indivisible,  or  if,  though 
divisible,  the  shares  and  policies  had  not  come 
within  one  of  the  particular  classes  specified  in 
it,  quaere.  Turcan,  In  r<?,  40  Ch.  D.  5  ;  68  L.  J., 
Ch.  101  ;  59  L.  T.  712  :  37  W.  R.  70— C.  A. 

Power  of  Appointment — Appointment  to  Self.] 
— By  a  marriage  settlement,  made  in  1878,  it 
was  agreed  that  if  M.,  the  intended  wife,  or  her 
husband  in  her  right,  should  at  one  and  the  same 
time,  and  from  the  same  source,  become  entitled 
to  any  real  or  personal  property  of  the  value  of 
500Z.  or  upwards,  then  and  in  every  such  case 
the  husband  and  wife  should  cause  the  same  to 
be  vested  in  the  trustees  of  the  settlement,  to  be 
held  by  them  upon  the  trusts  of  the  property 
assigned  by  M.  By  his  will,  mnde  in  1884,  the 
father  of  M.  bequeathed  to  the  trustees  of  the 
will  a  sum  of  4,000Z.  upon  trust  for  such  persons 
and  purposes  as  M.  should  appoint  in  writing, 
and  in  default  of  or  subject  to  any  such  appoint- 
ment in  trust  for  her  sole  and  separate  use,  and 


the  testator  declared  it  to  be  his  intention  that 
M.  might  be  able,  by  exercising  her  power  of 
appointment,  to  defeat  the  operation  of  the 
covenant  contained  in  her  marriage  settlement 
for  the  settlement  of  her  after-acquired  property. 
The  testator  died  in  1887.  M.  appointed  that 
the  sum  of  4,0002.  should  be  held  in  trust  for  her 
separate  use  by  nine  separate  appointments, 
made  on  separate  days,  and  each  under  50$.  in 
amount : — Held,  that  the  sum  of  4,0002.  had 
been  properly  appointed  by  M.,  and  was  payable 
to  her,  and  was  not  bound  by  her  covenant  to 
settle  after-acquired  property.  Gerard  (Lord), 
In  re,  Oliphant  v.  Gerard,  58  L.  T.  800- 
North,  J. 

Exception  of  Property  settled  by  Instrnment 
under  which  it  was  derived.] — A  marriage 
settlement  made  in  January,  1877,  contained  a 
covenant  by  the  husband  and  wife  that  all  pro- 
perty not  thereinbefore  settled  to  which  the 
wife  or  the  husband  in  her  right  then  was  or 
should  during  the  intended  coverture  become 
beneficially  entitled,  except  jewels,  trinkets,  &c, 
and  except  also  any  property  which  might  be 
settled  by  the  instrument  under  which  it  was 
derived,  should  be  assured  and  transferred  to  or 
otherwise  vested  in  the  trustees  upon  certain 
trusts.  Under  an  appointment  made  by  an  in- 
denture dated  30th  July,  1883,  the  wife  had 
become  entitled  to  a  sum  of  10,0001.,  which  by 
such  indenture  was  declared  should  be  for  her 
sole  and  separate  use,  and  should  not  be  subject 
to  any  trust  or  agreement  for  settlement  con- 
tained in  any  settlement  executed  upon  or  in 
contemplation  of  her  marriage : — Held,  that 
the  10,000J.  was  settled  by  the  instrument  under 
which  it  was  derived,  and  was  not  within  the 
covenant.  Kane  v.  Kane  (16  Ch.  D.  207)  fol- 
lowed. Beren's  Settlement  Trusts,  In  re,  S* 
L.  T.  626— Chitty,  J. 

Absolute  Gift  of  Personalty  —  Separate  V» 
attached  only  to  Income.]— On  the  5th  June, 
1860,  A.  and  B.,  in  exercise  of  the  power  of 
appointment  in  favour  of  children  contained  in 
their  marriage  settlement,  dated  in  1830,  ap- 
pointed 8,500/.  to  their  daughter  M.  (afterwards 
M.  S.).  By  the  marriage  settlement  of  N.  S.  and 
M.  S.,  dated  the  6th  June,  1860,  M.  S.  assigned 
the  3,500J.  to  the  trustees,  upon  trusts  under 
which  N.  S.  had  the  first  life  interest,  and,  in 
default  of  children,  M.  S.  had  a  general  testa- 
mentary power  of  appointment.  There  was  also 
a  covenant  by  N.  S.  and  M.  S.  that  if  they,  or 
either  of  them,  should  during  the  coverture 
become  entitled  to  any  real  or  personal  property 
(except  certain  specified  interests)  the  same 
should  be  forthwith  assured  to  the  trustees.  On 
the  20th  June,  1860,  A.  and  B.  appointed  that  a 
moiety  of  the  residue  unappointed  of  the  trust 
funds  under  the  settlement  of  1830  should,  after 
the  decease  of  the  survivor  of  them,  go  to  M.  S.t 
during  her  coverture,  for  her  sole  and  separate 
use,  without  power  of  anticipation,  her  receipt 
to  be  a  sufficient  discharge  for  the  payment 
thereof.  There  was  a  proviso  that  if  M.  S.  should 
die  in  the  lifetime  of  N.  8.,  leaving  no  children, 
the  same  moiety  should  go  to  the  brother  of  M.  S. 
absolutely,  and  that  if  M.  S.  should  survive 
her  husband,  the  same  moiety  should  go  to- 
M.  S.  absolutely.  M.  S.  died  in  1887,  leaving 
children,  and  having  by  her  will  appointed  and 
bequeathed  all  her  property  to  N.  S.,  and  sjk 


949 


HUSBAND    AND    WIFE. 


950 


pointed  him  sole  executor.  A.  and  B.  had  both 
pre-deceased  M.  6.  : — Held,  that  the  appoint- 
ment by  A.  and  B.,  of  the  20th  June,  1860, 
showed  an  intention  to  exclude  N.  S.,  and  any 
interest  which  he  would  take  if  the  fund  was 
caught  by  his  marriage  settlement ;  that  though 
the  restraint  on  anticipation  must  be  rejected 
{Fry  v.  Capper,  Kay,  163),  yet,  taken  together 
with  the  gift  over  in  default  of  children  and  the 
receipt  clause,  it  showed  an  intention  that  the 
separate  nee  should  apply  only  to  the  income 
accruing  during  the  particular  coverture,  and 
that  M.  S.  should  have  no  power  of  disposition 
orer  the  corpus.  Held,  also,  that  such  a  limita- 
tion was  clearly  good ;  and  that,  therefore,  the 
fond  having  accrued  during  the  coverture,  the 
corpus  was  caught  by  the  after-acquired  pro- 
perty clause.  Shute  v.  llogge,  58  L.  T.  646— 
Kay,  J. 

Chose  in  Action  of  Wife  existing  before,  but 
ailing  into  Possession  after,  Marriage.]— By  a 
marriage  settlement  10,000/.,  part  of  a  share  of 
residue  to  which  the  wife  was  entitled  under  her 
ancle's  will,  was  settled  upon    trusts   therein 
declared.    The  settlement  contained  a  covenant 
by  the  husband  and  wife  to  settle  all  property 
exceeding  300/.  which  the  husband  and  wife,  or 
either  of  them  in  her  right,  should  at  any  time 
or  times  subsequent  to  the  solemnisation  of  the 
marriage  and  during  the  coverture  become  seised  ' 
or  possessed  of  or  entitled  to,  either  at  law  or  in 
equity,  under  any  gift,  devise  or  bequest  in  her 
favour,  or  by  descent,  representation,  or  any 
other  means  whatsoever.    Previously  to  the  date 
of  the  settlement  the  wife,  who  was  of  full  age, 
had  executed  a  general  release  to  the  executors 
of  her  uncle's  will  in  respect  of  all  her  claims 
against  the  estate.     It  subsequently  appeared 
that  the  release   had  been    executed  under  a 
mistake,  common  to  all  the  parties  to  it,  as  to 
the  amount  of  the  share  of  residue,  and  that  the 
wife  was  in  fact  entitled  to  a  large  additional 
Bun.    The  release  was  set  aside  in  proceedings 
instituted  for   that    purpose : — Held,  that  the 
additional  share  of  residue   was  an  equitable 
chose  in  action,  which  until  the  release  was  set 
aside,  could  not  have  been  recovered  against  the 
executors,  and  was  therefore  practically  gone ; 
that  upon  the  setting  aside  of  the  release  the 
chose  in  action  revived  and  must  be  treated  as 
having  come  into  existence,  or  at  least  into 
possession  at  that  date  ;  and  that  therefore  the 
additional   sum    was    after-acquired    property 
within  the   meaning   of    the  covenant.     The 
additional  sum   which  had  been  recovered  by 
Raton  of  the  setting  aside  of  the  release  con- 
fisted  in  part  of  capital  and  in  part  of  income  : — 
Held,  that  the  whole  sum  was  bound  by  the 
covenant.    But  held,  on  appeal,  that  the  setting 
aside  of  the  release  did  not  give  the  wife  any  new 
right  but  merely  removed  a  bar  which  prevented 
her  enforcing  an  existing  right  to  property,  and 
that  the  additional  sum  was  not   subject   to 
the  settlement.      Garnett,  In  re,  Robinson  v. 
0«**ir,  33  Ch.    D.  300 ;    55  L.   J.,   Ch.  773  ; 
56  L.  T.  562— C.  A.     Reversing  34  W.  R.  434— 

Property  to  which  Wife  or  Husband  in  her 
«CBt  "shall  become  entitled."]— In  a  settle- 
ment made  before  marriage  there  was  an  agree- 
ment to  settle  upon  certain  trusts  all  real  and 
penonal   property  to  which  the  wife  or  the 


husband  "  in  her  right  at  any  time  during  her 
now  intended  coverture  shall  become  entitled 
(except  jewels  and"  certain  other  articles 
"  which  it  is  hereby  declared  shall  belong  to " 
the  wife  "for  her  separate  use)."  The  trusts 
included  a  power  of  sale,  the  moneys  arising 
from  the  sale  to  be  held  upon  the  trusts  agreed 
and  declared  concerning  such  part  of  the  personal 
estate  of  or  to  which  the  wife  *(  now  is  or  she 
or"  the  husband  "in  her  right  shall  become 
possessed  or  entitled  as  aforesaid  :  "—Held,  that 
on  the  true  construction  of  the  agreement,  read 
in  conjunction  with  the  context,  it  included 
property  to  which  the  wife  was  entitled  before 
marriage ;  and  therefore  that  jewels  given  to 
the  wife  before  marriage  were  within  the 
exception,  and  belonged  to  the  wife  for  her 
separate  use.  Williams  v.  Merrier,  10  A  pp.  Cas. 
1  ;  54  L.  J.,  Q.  B.  148  ;  52  L.  T.  662 ;  33  W.  R. 
373 ;  49  J.  P.  484  -H.  L.  (E.). 

Settlement  of  Seal  Estate  on  "the  like 
Trusts"  with  Personal  Estate.] — By  a  marriage 
settlement  a  sum  of  360Z.  belonging  to  the  wife 
was  settled,  after  the  deaths  of  husband  and 
wife,  and  in  default  of  appointment  by  the 
wife,  upon  the  wife's  next  of  kin  "  of  her  own 
blood  and  family  in  due  course  of  distribution, 
the  same  as  if  she  died  a  feme  sole  and  intestate 
possessed  thereof  or  entitled  thereto."  The 
settlement  contained  a  clause  providing  that 
after-acquired  real  or  personal  property  of  the 
wife  Bhould  be  settled  "upon  and  for  the  like 
trusts,  intents,  and  purposes  as  were  therein- 
before declared  of  and  concerning  the  said 
principal  sum  of  3607.  thereby  assigned."  The 
wife  afterwards  acquired  real  and  personal 
property,  and  died  without  having  exercised  the 
power  of  appointment,  and  the  husband  also 
died: — Held,  that  the  wife's  personal  estate 
passed  to  her  next-of-kin  according  to  the 
Statute  of  Distributions,  the  half-blood  sharing 
equally  with  the  whole  blood ;  and  that  her 
real  estate  passed  to  her  heir-at-law.  Brigg  v. 
Brigg,  54  L.  J.,  Ch.  464 ;  52  L.  T.  753  ;  83  W.  R. 
454— Pearson,  J. 

Annuities— Fitting  in  with  Trusts  of  Settle- 
ment.]— By  an  ante-nuptial  settlement  made  in 
1870  the  intended  husband  and  wife  respectively 
covenanted  with  the  trustees  that  all  the  estate, 
property,  and  effects,  real  or  personal,  of  or  to 
which  the  wife,  or  the  husband  in  her  right, 
should  at  any  time  during  the  coverture  become 
seised,  possessed,  or  entitled,  should  be  assured 
and  settled,  as  regarded  personal  estate,  upon 
trust,  as  to  such  part  thereof  as  should  not  con- 
sist of  money  or  authorized  investments,  or  of 
interests  determinable  on  the  death  of  the  wife, 
upon  trust  to  convert,  and  to  invest  the  proceeds, 
and  such  part  of  the  estate  as  should  consist  of 
money,  upon  such  investments  as  therein  men- 
tioned, and  during  the  joint  lives  of  husband  and 
wife  pay  "the  interest,  dividends,  and  annual 
proceeds  thereof "  to  them  in  equal  shares,  the 
share  of  the  wife  to  be  for  her  separate  use 
without  power  of  anticipation.  By  a  deed  of 
the  same  date  the  wife's  father  covenanted  with 
the  trustees  to  pay  to  them  an  annuity  of  500/. 
to  be  applied  by  them  upon  trusts  corresponding- 
with  those  of  the  income  of  the  personal  property 
mentioned  in  the  covenant.  In  1874  the  wife's 
father  bought  up  the  husband's  interest  in  this 
annuity,  and  assigned  it  to  trustees  for  the  wife's 


951 


HUSBAND    AND    WIFE. 


952 


separate  use  with  no  restraint  on  anticipation : — 
Held,  that  the  covenant  to  settle  included  life 
annuities  given  to  the  wife,  that  the  Bhare 
assigned  by  the  wife's  father  in  the  annuity  of 
500/.  was  bound  by  the  covenant,  and  that, 
during  the  joint  lives  of  the  husband  and  wife, 
three-fourths  of  the  annuity  belonged  to  the 
wife  for  her  separate  use  with  a  restraint  on 
anticipation,  and  the  remaining  fourth  to  the 
trustee  of  the  husband,  who  had  become  bank- 
rupt, and  that  persons  to  whom  the  wife  had 
mortgaged  the  interest  assigned  in  1874  took 
nothing.  Scholfield  v.  Spooner,  26  Ch.  D.  94  ; 
53  L.  J.,  Ch.  777  ;  51  L.  T.  138  ;  32  W.  R.  910— 
C.  A. 

Intention  of  Donor.] — Where  a  covenant  has 
been  entered  into  for  settlement  of  the  future 
property  of  a  married  woman,  and  a  gift  is  after- 
wards made  to  her  of  such  a  nature  as  to  come 
within  the  terms  of  the  covenant,  no  expression 
of  the  intention  of  the  donor  that  it  shall  not 
be  settled  will  exclude  it  from  the  operation  of 
the  covenant.  Mainwaring's  Settlement,  In  re 
(2  L.  R.,  Eq.  487),  observed  upon.    lb. 

Real  Property  of  which  Wife  "  should  become 
soiled  or  possessed  of  or  entitled  to"— Estate 
Tail  in  Possession.]— A  marriage  settlement  con- 
tained an  agreement  and  declaration  by  the 
parties  that,  if  the  wife  then  was,  or  if,  during 
the  coverture,  she,  or  the  husband  in  her  right, 
should  become  seised  or  possessed  of  or  entitled 
to  any  real  or  personal  property  (of  a  specified 
value)  for  any  estate  or  interest  whatsoever,  in 
possession,  reversion,  remainder,  or  expectancy, 
then  and  in  every  such  case  the  husband  and 
wife,  and  all  necessary  parties,  should,  as  soon 
as  circumstances  would  admit,  convey,  assign, 
and  assure  the  said  real  and  personal  property 
to,  or  otherwise  cause  the  same  to  be  vested  in, 
the  trustees  of  the  settlement,  upon  the  trusts 
thereof  :— Held,  that  an  estate  tail  in  possession 
to  which  the  wife  became  entitled  during  the 
coverture  was  not  bound  by  this  agreement, 
and  that  she  could  not  be  compelled  either  to 
execute  a  disentailing  deed,  and  to  convey  the 
estate  in  fee  thus  acquired  by  her  to  the  trustees, 
or  to  execute  a  conveyance  of  the  property  to 
the  trustees,  so  that  they  could  by  inrolling 
the  deed  acquire  an  estate  in  fee  simple.  Held, 
further,  that  the  agreement  extended  only  to  the 
wife's  estate  or  interest  in  the  property  acquired 
by  her,  and  that  it  was  impossible  that  she 
could  convey  an  estate  tail  to  the  trustees. 
Hitlers  v.  Parkinson,  25  Ch.  D.  200  ;  53  L.  J., 
Oh.  194  ;  49  L.  T.  502  ;  32  W.  R.  315  — 
Pearson,  J. 

b.  In  Other  Oases. 

Consumable  Articles  —  Life  Interest,  with 
Power  of  Disposing  by  Will.]— By  a  deed  of 
ante-nuptial  settlement,  the  intended  husband 
covenanted  with  the  intended  wife  that  '*  he 
will  have  no  claim  or  demand  to  that  part  of  the 
lands  of  B.  now  in  her  possession,  nor  any 
stock  thereon,  nor  to  the  crops  thereof  during 
her  life,  nor  to  the  furniture  of  said  house  ;  but 
she  is  to  have  claim  and  control  over  the  stock 
and  furniture  during  her  natural  life,  and  that 
she  can  dispose  of  the  farm  and  lands  of  B., 
together  with  the  furniture  of  the  said  house 
thereon,  together  with  the  crops  growing  on  the 
said  premises  at  the  time  of  her  death,  and  the 


house  and  furniture,  either  by  deed  or  will,  to  each 
person  or  persons  as  she  may  think  fit."  The  wife 
was  seised  of  the  lands  of  B.  for  a  freehold  estate, 
and  after  marriage  she  farmed  these  lands,  and 
purchased  farming  stock  out  of  the  profits.  She 
died  in  her  husband's  lifetime,  having  made  a 
will,  by  which  she  devised  and  bequeathed  to  P. 
"  the  said  lands  and  all  the  stock  that  maybe 
thereon,  and  all  the  household  furniture  in  the 
dwelling-house  on  the  said  lands" : — Held,  upon 
the  true  construction  of  the  settlement,  that  the 
wife  had  power  to  dispose  by  will  of  the  stock 
on  the  lands  of  B.  at  the  time  of  her  death. 
Puroell  v.  Sheehy,  16  L.  R.,  Ir.  439— 0.  P.  D. 

Covenant  to  Bottle— "  Equal  Child's  Share  "- 
Advancement  to  other  Children.]— A.,  by  settle- 
ment on  the  marriage  of  his  son  B.,  covenanted 
to  settle  an  equal  child's  share  for  B.,  rateablj 
and  in  proportion  to  the  several  children  of  him 
the  said  A.,  of  all  the  property,  real  and  personal, 
he  should  die  possessed  of.  A.,  in  his  lifetime, 
made  advances  to  some  of  his  children.  By  his 
will,  A.  directed  a  valuation  to  be  made  of  his 
estate,  that  all  his  debts,  funeral  and  testa- 
mentary expenses  should  be  paid,  and  that  the 
clear  amount  of  the  residue  of  his  real  and  per- 
sonal estate  should  be  ascertained,  and  the 
testator  gave  such  an  amount  as  would  he 
equivalent  to  one-seventh  of  the  real  and  per- 
sonal estate  when  so  ascertained,  to  the  trustees 
of  the  settlement,  in  satisfaction  of  the  cove- 
nant. After  several  other  bequests,  he  directed 
that,  subject  as  aforesaid,  his  trustees  should  be 
possessed  of  all  his  residuary  real  and  personal 
estate,  in  trust  for  such  of  his  children,  save  B., 
as  should  survive  him,  in  equal  shares.  A.  died, 
leaving  B.  and  six  other  children  him  sof- 
viving  :  —  Held,  that  the  one  equal  seventh 
share,  to  which  B.  was  entitled,  meant  one- 
seventh  of  the  property  of  which  the  testator 
died  actually  seised  and  possessed,  and  without 
taking  into  account  the  advancements  which  he 
had  made  to  others  of  his  children.  Stephens  r. 
Stephens,  19  L.  R.,  Ir.  190— V.-C. 

Renewal  of  Lease— Trust  —  Repayment  of 
Premium.] — A  husband  made  a  voluntary  settle- 
ment of  leaseholds  for  the  benefit  of  his  wife, 
and  afterwards,  without  disclosing  the  settle- 
ment, obtained  a  renewal  in  his  own  name,  bat 
with  the  intention  of  giving  his  wife  the  benefit 
of  the  renewal  lease  : — Held,  that  the  renewal 
lease  was  held  by  the  husband  as  constructive 
trustee  for  his  wife,  and  that  the  trust  arising 
by  operation  of  law,  it  was  within  the  exception 
of  s.  7  of  the  Statute  of  Frauds,  so  as  to  make 
the  absence  of  writing  immaterial  Held,  also, 
that  ae  the  husband's  intention  was  to  benefit 
his  wife,  she  was  not  bound  to  repay  to  her 
husband's  estate  the  premium  paid  by  him  for 
the  renewal.  Lulham,  In  re,  Brinton  v.  L*lh*m, 
63  L.  T.  9  ;  33  W.  R.  788— C.  A.  Affirming 
58  L.  J.,  Ch,  928— Kay,  J. 


2.  CONSTRUCTION. 
a.  In  General. 

Validity— Trust  for  Aocnmulation-TheUM- 
son  Aot.l — The  prescribed  periods  mentioned 
in  the  Theilusson  Act  beyond  which  accumu- 
lations  of  income  must   not  extend  are  not 


963 


HUSBAND    AND    WIFE. 


954 


cumulative — that  is  to  say,  when  one  of  them 
has  been  applied  and  exhausted,  recourse  cannot 
be  had  to  another  in  order  to  extend  the  period 
of  accumulation.  Jogger  v.  Jogger,  25  Ch.  D. 
729 ;  63  L.  J.,  Ch.  201  ;  49  L.  T.  667  ;  32  W.  B. 
284-Kay,  J. 

By  a  post-nuptial  settlement,  a  husband  gave 
his  personal  estate  to  trustees  upon  trust  in  the 
fast  place  to  appropriate  so  much  as  should  be 
necessary  for  his  own  personal  maintenance,  and 
subject  thereto,  during  the  joint  lives  of  himself 
and  his  wife  and  the  life  of  the  survivor,  to 
apply  the  whole  or  any  part  of  the  annual  in- 
come for  the  support  of  the  wife  and  children, 
and  to  accumulate  the  surplus  (if  any)  so  that 
the  accumulations  should  follow  the  destination 
of  the  principal,  with  liberty  to  resort  to  the 
accumulations  of  previous  years  and  apply  the 
■me  to  the  support  of  the  wife  and  children, 
and  upon  the  death  of  the  survivor  of  the  hus- 
band and  wife  upon  trust  for  the  children  as 
therein  mentioned : — Held,  that  the  only  one  of 
the  four  terms  mentioned  in  .the  Thellusson  Act 
which  applied  to  the  trust  for  accumulation,  was 
the  first,  namely — the  life  of  the  grantor — and 
that  the  trust  was  therefore  void  as  from  the 
date  of  his  death.    lb. 

Provision  for  Children  of  prior  Marriage— 
Irrevocability.] — The  general  rule  of  law  is  that 
the  courts  will  not  enforce  a  marriage  settlement 
in  favour  of  stranger  volunteers  who  are  not 
parties  to  the  contract,  on  the  ground  that  they 
are  not  within  the  consideration  of  the  marriage. 
Bat  when  the  persons  who  are  within  the  con- 
aideration  of  the  marriage  take  only  on  terms 
which  admit  to  a  participation  with  them,  others 
who  would  not  otherwise  be  within  the  con- 
oderstion,  then  not  the  matrimonial  considera- 
tion, but  the  consideration  of  the  mutual  con- 
tract, extend  to  and  comprehend  them.  Maokie 
v.Herbertson,  9  App.  Cas.  303— H.  L.  (8c). 

Where  in  an  ante-nuptial  contract  of  mar- 
riage, the  intention  of  the  owner  of  the  property, 
a  widow  with  children,  was  to  make  the  children 
of  the  prior  marriage  and  those  procreated  of  the 
second  marriage  a  single  class,  the  members  of 
which  class  were  to  take  equally  among  them, 
mbject  to  a  power  of  apportionment,  it  is  incon- 
sistent with  this  intention  to  hold  that  some  of 
the  children  take  vested  interests,  as  they  come 
into  existence,  and  that  others  take  nothing 
except  subject  to  a  testamentary  power ;  and  in 
neh  a  case  the  vested  interest  of  the  children  of 
the  earlier  marriage  is  not  contingent  on  there 
being  children  of  the  second  marriage,  for  the 
efoct  and  operation  of  the  deed  must  be  deter- 
mined at  the  time  it  was  executed.  A  widow 
PflWCTBcd  of  certain  heritable  and  movable  pro- 
perty, who  had  children  alive  by  her  first  hus- 
band, by  deed,  before  her  second  marriage,  to 
which  her  husband  was  a  party,  conveyed  her 
Property  to  trustees  for  behoof  of  herself  "in 
liferent  for  her  liferent  alimentary  use  of  the 
annual  proceeds  thereof  allenarly  and  seclusive 
of  the  jus  mariti  of "  her  husband,  "  and  not 
•toctable  by  his  or  her  debts  or  deeds  or  by  the 
diligence  of  their  creditors,  and  for  behoof  of 
the  children  procreated  or  to  be  procreated  of" 
her  body,  "in  such  proportions,  and  on  such 
tennt  and  conditions  as  she  might  appoint  by  a 
writing  under  her  hand,  which  failing,  equally 
•Bong  them  share  and  share  alike,"  &c,  '*  in 
«*"   The  trustees  entered  into  possession,  and 


applied  the  income  for  the  behoof  of  the  wife. 
She  died  without  issue  by  the  second  marriage, 
leaving  testamentary  deeds  by  which  she  cut 
down  one  of  the  children's  interest  to  a  sum 
much  less  than  he  would  have  taken  under  an 
equal  division  of  her  estate.  He  raised  this 
action  for  declarator  of  his  right  to  an  equal 
ehare  of  her  estate  ;  and  the  sole  question  now 
for  decision  was  whether  the  marriage  contract 
was  revocable  : — Held,  that  the  provision  of  the 
marriage  contract  in  favour  of  the  children  of 
the  prior  marriage  was  irrevocable.    lb. 

Power  to  raise  Money  of  Use  of  Wife — Re- 
peated Exercise  of  Power.] — Under  a  power  to 
the  trustees  of  a  marriage  settlement  upon  the 
request  of  the  wife,  notwithstanding  coverture, 
to  raise  out  of  the  trust  funds  any  sum  not  ex- 
ceeding 1,000/.,  and  to  pay  the  same  to  her  for 
her  separate  use,  her  receipt  to  be  a  sufficient 
discharge.  The  trustees  advanced  3102.  9*.  6d. 
to  the  wife  : — Held,  that  the  trustees  had  power 
to  raise  and  pay  to  the  wife  the  difference 
between  the  sum  already  advanced  and  1,0002. 
Krantzcke  v.  Robinson,  11  L.  R.,  Ir.  500 — M.  R. 

Lif6  Annuity— Arrears — Deficiency  of  Income 
— Charge  on  Corpus.] — By  marriage  settlement, 
dated  the  29th  January,  1821,  two  sums  of  3,0002. 
and  1,0002.  (Irish  currency),  were  vested  in  trus- 
tees in  trust  to  pay  the  income  to  the  husband 
for  life,  and,  after  his  death,  in  case  the  wife  sur- 
vived, to  pay  to  her  out  of  the  income  an  annuity 
of  2002.  (Irish  currency)  for  her  life  ;  and  after 
the  death  of  the  husband,  subject  to  the  said 
annuity,  in  trust  for  the  issue  of  the  marriage. 
At  the  date  of  the  settlement,  the  trust  bonds 
were  represented  by  two  bonds  for  3,0002.  and 
1,0002.,  bearing  interest  at  62.  per  cent.,  given 
respectively  by  the  husband  and  the  wife's 
father.  They  were  paid  off  shortly  after  the 
marriage,  and  the  4,0002.  was  invested  in  govern- 
ment stock,  which  produced  annually  1 122. 13*. 6<?. 
only.  The  husband  died  in  1871,  and  the  wife 
died  in  1883,  leaving  one  daughter  issue  of  the 
marriage  : — Held,  that  the  executor  of  the  wife 
was  entitled  to  be  paid  out  of  the  corpus  of  the 
trust  fund  a  sum  of  money  amounting  to  the 
difference  between  1122. 13*.  6d.  and  2002.  (Irish 
currency)  annually  during  the  eleven  and-a-half 
years  that  the  wife  survived  her  husband.  Pep- 
per's Trusts,  In  re,  13  L.  R.,  Ir.  108— V.-C. 

intimate  Limitation  to  Next-of-kin  of  Wile- 
Time  for  ascertaining  Persons  entitled.] — In  a 
marriage  settlement,  which  gave  successive  life 
interests  to  the  wife  and  husband,  the  ultimate 
limitation  of  personal  property,  in  the  event  of 
the  husband  surviving  the  wife,  was  in  trust  for 
the  person  or  persons  who,  under  the  statutes  for 
the  distribution  of  the  estates  of  intestates  would, 
on  the  decease  of  the  wife,  have  been  entitled 
thereto  in  case  she  had  survived  the  husband, 
and  had  then  died  possessed  thereof  and  intes- 
tate. The  wife  predeceased  the  husband  : — 
Held,  that  the  class  of  persons  to  take  under  the 
limitation  ought  to  be  ascertained  as  at  the  date 
of  the  death  of  the  wife,  and  not  as  at  the  date 
of  the  death  of  the  husband.  Bradley,  In  re. 
Brown  v.  CoUrell,  58  L.  T.  631— Stirling,  J. 

Ultimate  Trait  for  Next-of-kin  — "Unmar- 
ried."]— The  primary  and  usual  meaning  of  the 
word  "  unmarried,"  in  the  absence  of  any  con- 


955 


HUSBAND    AND    WIFE. 


956 


text  showing  a  different  meaning,  is  "  without 
ever  having  been  married."  Blundell  ▼.  Be 
Falbe,  67  L.  J.,  Ch.  576  ;  58  L.  T.  621— North,  J. 

By  a  marriage  settlement  property  belonging 
to  the  wife  was  settled  in  the  events  which 
happened,  subject  to  the  life  interests  of  the 
husband  and  wife,  in  trust  "  for  such  person  or 
persons  as,  under  or  by  virtue  of  the  statute  for 
the  distribution  of  intestates'  effects,  would  at 
the  time  of  the  decease  of  the  wife  have  been 
entitled  to  her  personal  estate  as  her  next-of- 
kin  in  case  she  had  died  intestate  and  unmar- 
ried":— Held,  that  in  the  absence  of  anything 
in  the  settlement  showing  a  contrary  intention, 
the  word  "  unmarried "  must  be  construed  to 
mean  "  without  ever  having  been  married."  lb. 

By  a  marriage  settlement  funds  were  vested 
in  trustees,  for  the  intended  wife  and  husband 
successively,  for  their  lives,  and  after  their 
deaths  for  the  children  of  the  marriage,  as  the 
husband  and  wife  during  their  joint  lives,  or  the 
survivor,  should  appoint ;  and  in  default  of 
appointment,  for  the  children  equally,  or  for  one 
child  if  only  one,  the  shares  to  vest  in  sons  at 
twenty-one  and  in  daughters  at  twenty-one  or 
marriage  ;  on  failure  of  issue  who  should  acquire 
a  vested  share,  as  the  wife  should,  notwithstand- 
ing her  coverture,  by  deed  or  will  appoint ;  and 
in  default  of  such  appointment,  and  so  far  as 
the  same  should  not  extend,  then  as  the  husband 
should  by  deed  or  will  appoint ;  and  in  default  of 
appointment  by  him,  for  such  person  or  persons 
as,  under  the  statutes  for  the  distribution  of  the 
effects  of  intestates,  would  have  become  entitled 
thereto  at  the  decease  of  the  wife,  if  she  had 
died  possessed  thereof  intestate  and  without 
having  been  married,  with  a  power  to  the  trus- 
tees after  the  death  of  the  husband,  or  during 
his  life  with  his  consent,  to  advance  one-half  of 
the  respective  shares  of  the  sons  towards  placing 
them  out  in  any  business,  employment,  or 
advancement  in  the  world.  There  were  two 
children  of  the  marriage,  who  died  infants.  The 
wife  survived  the  husband,  married  again,  and 
had  by  her  second  marriage  one  son  (the  plain- 
tiff), and  died  intestate,  without  making  any 
appointment  of  the  fund,  leaving  the  second 
husband  (her  administrator)  surviving  : — Held, 
that  the  next-of-kin  of  the  wife,  excluding  the 
plaintiff,  were  entitled  to  the  funds.  Hardman 
v.  Maffett,  13  L.  R.,  Ir.  499— M.  R. 

"  Eldest  Son  "—Portions  for  Younger  Children 
— Younger  becoming  the  Elder  Bon — Estates 
•old.] — By  a  marriage  settlement  an  estate  was 
settled  on  the  wife  and  husband  successively  for 
life,  with  remainder  to  trustees  for  a  term  of  600 
years,  and  subject  thereto  to  the  first  and  other 
sons  in  tail.  Other  estates  were  settled  free  from 
the  portions  term,  but  subject  to  prior  charges, 
which  entirely  absorbed  them.  The  trusts  of 
the  term  were  if  there  should  be  any  child  or 
children  of  the  husband  and  wife,  other  than  or 
besides  an  eldest  or  only  son,  who  by  virtue  of 
the  limitations  should  for  the  time  being  be 
entitled  to  the  hereditaments  and  premises  to 
raise  for  the  portions  of  such  child  or  children, 
other  than  or  besides  such  eldest  or  only  son, 
5,0002.,  to  be  vested  in  such  of  them  as  the  hus- 
band and  wife,  or  the  survivor,  should  appoint, 
and  in  default  of  appointment  equally.  There 
were  three  children  of  the  marriage,  two  sons 
and  a  daughter.  In  1841  the  estate  was  sold 
under  a  paramount  title,  and  produced  a  sum  of 


about  2,4002.  In  1842  the  eldest  son  died  an 
infant.  In  1882  the  surviving  tenant  for  life 
died,  and  the  portions  became  payable.  There 
had  been  no  appointment.  The  younger  son, 
who  had  become  the  elder,  and  had  attained 
twenty-one,  claimed  to  take  a  share  with  his 
sister  of  the  2,4002. :— Held,  that  the  effect  of 
the  settlement  was  to  give  5,0002.  to  the  sister 
as  a  first  charge  on  the  estate,  and  the  rest  of 
the  estate  to  the  brother,  and  whether  the  value 
of  the  residue  were  more  or  less  than  the  portion, 
or,  as  in  this  case,  nothing  at  all,  the  brother 
had  no  right  to  claim  any  share  in  the  prior 
charge.  Reid  v.  Hoare,  26  Ch.  D.  863 ;  53  L.  J., 
Ch.  486  ;  50  L.  T.  257 ;  32  W.  R.  609— Kay,  J. 

Honey  Fund  for  Younger  Children— Portion 
— Trust  of  Term  to  secure.] — By  settlement 
executed  on  the  marriage  of  F.  with  H.,  a  sum 
of  1,000/.,  the  fortune  of  the  wife  H.,  and 
9232. 1*.  6rf.,  the  property  of  the  husband,  were 
vested  in  trustees  in  trust  for  F.  for  life,  and 
after  his  decease  in  case  he  survived  his  wife 
(which  event  happened)  in  trust  to  pay  and 
assign  said  funds  among  his  children  other  than 
and  besides  an  eldest  or  only  son,  as  he  should 
appoint,  and  in  default  of  appointment  then 
upon  the  trust  declared  concerning  the  trust 
fund  secured  by  the  term  of  five  hundred  yean 
for  the  benefit  of  F.'s  younger  children  therein- 
after mentioned  ;  but  if  there  were  no  such  child 
or  children  as  those  for  whom  said  trust  fund 
was  to  be  provided  then  in  trust  for  F.'s  father. 
By  the  same  settlement  certain  lands  were 
conveyed  to  the  use  of  F.  for  life,  remainder 
subject  to  a  trust  term  of  five  hundred  years  to 
the  use  of  his  first  and  other  sons  in  tail  male ; 
remainder  to  the  daughters,  as  tenants  in 
common  in  tail  with  remainders  over.  Tbe 
trusts  of  the  term  of  five  hundred  years  were 
declared  to  be,  that  if  there  should  be  any  child 
or  children  of  the  said  F.  other  than  and  besides 
an  eldest  or  only  son  who  by  virtue  of  the  limita- 
tions before  mentioned,  should  for  the  time 
being,  be  entitled  to  the  lands,  then  that  the 
trustees  should  raise  for  such  child  or  children 
other  than  or  besides  an  eldest  or  only  son,  as 
aforesaid,  the  sums  mentioned,  6,0002.  if  one 
such  child,  8,0002.  if  two,  and  10,0002.  if  three 
or  more.  There  are  two  other  clauses  as  to 
the  vesting  of  these  portions,  which  contained 
the  words  "  other  than  or  besides  an  eldest  or 
only  son  so  for  the  time  being  entitled  as  afore- 
said," and  an  advancement  clause  which  con- 
tained the  words  "other  than  and  except  an 
eldest  or  only  son  for  the  time  being  entitled  as 
aforesaid."  There  was  issue  of  the  marriage  two 
daughters  only,  both  of  whom  died  in  F.'s  life- 
time, leaving  children  who  became  entitled  on 
F.'s  death  to  the  settled  lands  :— Held,  first  that 
the  clauses  in  the  settlement  dealing  with  the 
money  fund  must  be  read  as  providing  for 
children  other  than  and  besides  an  eldest  or 
only  son.  Secondly,  that  there  not  being  any 
son  of  the  marriage  the  daughters  did  not  come 
within  the  description  of  '*  a  child  or  children 
other  than  and  besides  an  eldest  or  only  son," 
and  that  consequently  the  money  fond  of 
1,9232.  1*.  6d.  passed  to  F.'s  father  under  the 
ultimate  trust.  Flemyng'*  Trusty  In  re,  15 
L.  R.,  Ir.  363— V.-C. 

Portions— Veiling— Satisfaction]— A  sum  of 
2,0002.  secured  by  the  bond  of  J.  M.,  the  father 


957 


HUSBAND    AND    WIFE. 


958 


of  the  intended  wife,  was,  by  a  marriage  settle- 
ment in  1849,  vested  in  trustees  upon  trust  for 
her  separate  use  for  life,  and  after  her  decease 
u  in  trust  for  the  other  or  others  of  the  issue  of 
the  said  intended  marriage  whether  a  son  or 
ions,  or  daughter  or  daughters,  or  more  remote 
descendant  or  descendants,  if  more  than  one,  in 
sach  shares,  &c.,  as  the  wife  should  appoint ; 
bat  so,  nevertheless,  that  no  share  in  the  said 
trust  funds  shall  be  absolutely  vested  in  any 
child  or  any  issue  by  any  such  appointment 
nntil  he  being  a  male  shall  attain  the  age  of  one 
and  twenty  years,  or  until  she  being  a  daughter 
shall  attain  that  age  or  marry  ;  and  in  default 
of  appointment  in  trust  for  all  and  every  the 
children  or  child  of  the  marriage  who  being  a 
son  or  sons  shall  attain  the  age  of  twenty-one 
years,  or  being  a  daughter  or  daughters  should 
attain  that  age  or  marry,  to  be  divided  between 
and  among  them,  if  more  than  one,  in  equal 
shares  ;  and  if  there  should  be  one  such  child 
the  whole  in  trust  for  such  one  child :  Pro- 
tided,  however,  that  if  any  child  or  children 
of  the  said  intended  marriage  shall  die  in  the 
lifetime  of  the  said  G.  H.  (the  husband)  and 
M.  M.  (the  wife)  or  the  survivor  of  them  leaving 
issue,  such  issue  shall  stand  and  be  in  the  place 
of  his  or  their  parent  or  parents,  and  shall  be 
entitled  to  such  share  of  the  said  trust  moneys 
as  the  parent  or  parents  would  have  been 
entitled  to  in  case  of  surviving  the  said  G.  H. 
and  M.  M.  and  attaining  twenty-one  years." 
The  deed  contained  provisions  for  maintenance 
and  advancement.  M.  M.  (the  wife)  died 
leaving  her  husband  and  several  children  sur- 
viving her,  one  of  whom  a  daughter  (A.  H.) 
attained  twenty-one  and  married  in  1873  after 
the  mother  s  death  : — Held,  that  the  portion 
secured  by  the  settlement  of  1849  vested  in  the 
children  of  the  marriage  of  G.  H.  and  M.  M.  at 
twenty-one  or  marriage.  Martin  v.  Dale,  15 
L.  R.,  Ir.  345— M.  R. 

Vested  Interest  —  "  Payable  "  meaning 
4- Vested"— Shares  "  to  be  Paid  "  at  Twenty-one 
—Sift  over  on  Death  before  Share  "  Payable."! 
—By  a  marriage  settlement  lands  were  conveyed 
upon  trust  for  husband  and  wife  successively 
for  life,  and  after  the  death  of  the  survivor  "  to 
levy  out  of  the  said  lands  and  premises  .  .  .  . 

the  sum  of  3,0002 to  be  divided  among  all 

the  children  of  the  said  intended  marriage,  save 
end  except  such  child  and  children  as  under 
the  limitations  aforesaid  shall  succeed  to  the 
enjoyment  of  the  lands  and  premises  hereby 
conveyed  ....  in  equal  shares  and  proportions 
as  tenants  in  common  and  not  as  joint  tenants, 
the  share  of  such  child  or  children  as  shall  be  a 
son  or  sons  to  be  paid  to  him  or  them  upon  his 
or  their  respectively  arriving  at  the  full  age  of 
twenty-one  years,  and  the  share  or  shares  of  such 
of  them  as  shall  be  daughters  to  be  paid  upon 
their  respectively  arriving  at  their  full  age  of 
twenty-one  years,  or  day  or  days  of  marriage, 
whichever  shall  first  happen  :  Provided  always 
that  such  marriage  during  minority  shall  be  had 
hy  and  with  the  consent  and  approbation  of  "  the 
parents  :  "  or  the  survivor  of  them  :  with  interest 
for  the  same  by  way  of  maintenance  at  the  rate 
of  62.  by  the  hundred  to  be  computed  from  the 
day  of  the  death  of  the  survivor  of  "  the  parents 
**  with  benefit  of  survivorship  to  the  survivors  or 
■armor  of  such  children  if  any  of  such  children 
•ball  die,  before  his,  her,  or  their  share  or  shares 


shall  become  payable,  unmarried,  and  without 
leaving  issue  as  aforesaid,  it  being  the  true 
intent  and  meaning  of  these  presents  that  none 
of  the  children  of  the  said  intended  marriage, 
who  under  the  limitations  herein  contained  shall 
become  entitled  to  an  estate  in  possession  in  any 
part  of  the  lands  and  premises  hereby  conveyed 
.  .  .  .  shall  be  entitled  to  any  part  of"  the  said 
sum.  A  son  attained  twenty-one  and  died  in  the 
lifetime  of  his  father: — Held,  that  there  being 
no  words  indicating  a  clear  intention  to  make 
the  vesting  of  children's  shares  contingent  on 
their  surviving  both  parents,  the  rule  laid  down 
in  Emperor  v.  Rolfe  (1  Ves.  sen.  208)  applied, 
and  the  son  took  a  vested  interest  in  his  share 
on  attaining  twenty-one.  Wakefield  v.  Maffet, 
10  App.  Cas.  422  ;  55  L.  J.,  Ch.  4  ;  53  L.  T.  169 
— H.  L.  (Ir.). 

Power  of  Appointment — Becitals  in  Will.] — 
By  articles  under  seal,  dated  25th  October,  1830, 
executed  on  the  marriage  of  J.  R.  M.  and  E.  C.  M., 
and  not  containing  any  hotchpot  clause,  two 
bonds  for  1,5002.  and  3,0002.  respectively,  and 
two  policies  of  insurance  for  1,0002.  each,  were 
assigned  to  trustees  upon  trust,  after  the  death 
of  the  husband  and  wife,  for  the  children  of  the 
marriage  as  J.  R.  M.  should  appoint,  and  in 
default  of  any  appointment  in  trust  for  the 
children  equally.  The  parties  to  the  marriage 
articles  covenanted  to  execute  a  settlement  in 
pursuance  thereof.  There  was  issue  of  the  mar- 
riage, six  children.  In  1856,  by  settlement  on 
the  marriage  of  M.  T.,  one  of  the  daughters, 
J.  R.  M.,  assigned  to  the  trustees  of  that  settle- 
ment one  of  the  policies  for  1,0002.,  the  proceeds 
of  which  were  on  the  death  of  J.  R.  M.,  in  1862, 
paid  to  the  trustees  of  the  settlement.  In  1860, 
on  the  marriage  of  M.  S.,  another  daughter,  a 
settlement  was  executed  to  which  J.  R.  M.  was 
a  party,  reciting  an  agreement  by  J.  R.  M.  to 
give  to  that  daughter  1,0002.,  payable  upon  the 
death  of  J.  R.  M.  and  E.  C.  M. ;  and  J.  R.  M. 
executed  to  the  trustees  of  the  settlement  his 
bond  for  1,0002.  In  1862,  8.,  a  third  daughter, 
married,  when  a  sum  of  1,0002.,  secured  by  the 
joint  bond  of  J.  R.  M.  and  his  father,  was  put  in 
settlement.  In  1864,  on  the  marriage  of  a  fourth 
daughter,  E.,  a  settlement  was  executed,  to 
which  E.  C.  M.  was  a  party,  reciting  the  articles 
of  1830,  and  that  J.  R.  M.  had  died,  leaving 
3,5002.  of  the  6,5002.  comprised  in  these  articles 
unappointed ;  and  E.  C.  MM  in  exercise  of  the 
power,  appointed  1,2502.  to  E.,  which  she  assigned 
to  her  trustees.  In  1865,  one  of  the  sons  mar- 
ried, and  by  marriage  settlement,  dated  the  17th 
of  January,  1865,  reciting  the  articles  of  1830, 
and  that  2,2502.  remained  unappointed,  E.  C.  M. 
appointed  1,0002.  to  him  on  the  5th  of  March, 
1873  ;  E.  C.  M.  by  will  reciting  that  she  had  a 
disposing  power  over  1,5002.,  exclusive  of  the 
sums  settled  oh  her  son  and  her  three  firstly 
married  daughters,  viz.,  M.  T.,  M.  8.  and  8., 
bequeathed  5002.  out  of  her  own  personal .  estate 
and  out  of  the  1,5002.  to  trustees  for  her  grand- 
son J.  (son  of  M.  T.),  and  the  residue  of  the 
1,5002.  to  trustees  for  her  grandson  J.  (son  of 
M.  T.),  and  the  residue  of  the  1,5002.  to  trustees 
for  her  daughter  M.  T.  for  life,  remainder  to  her 
children.  By  a  codicil  to  her  will  E.  C.  M.  left 
one-half  of  the  residue  of  the  1,5002.  to  M.  T.  for 
life,  remainder  to  her  children,  and  the  other  half 
to  M.  8.  for  life,  remainder  to  her  children : — Held, 
that  the  settlements  on  the   marriage  of  the 


959 


HUSBAND    AND    WIFE. 


960 


daughters,  M.  S.  and  S.,  were  not  good  appoint* 
ments,  and  were  not  validated  by  the  recitals  in 
E.  C.  M.'s  will  ;  that  the  wiU  and  codicil  were 
good  appointments  to  M.  T.  and  M.  S.  for  life 
as  to  half  of  the  Tesidue  to  each,  but  void  as  to 
their  children.  Miller  v.  Gulson,  I'd  L.  R.,  Ir. 
408— V.-C. 

"Issue."] — By   a   marriage   settlement 


certain  funds  were  assigned  to  trustees,  upon 
trust  (after  the  death  of  the  husband  and  wife) 
for  the  issue  of  the  marriage  as  the  wife  should 
by  deed  or  will  appoint ;  and,  for  want  of  such 
appointment,  upon  trust  for  the  issue  of  the 
marriage,  if  more  than  one,  in  equal  shares,  the 
sons  at  twenty-one  and  the  daughters  at  twenty- 
one  or  marriage ;  and  in  case  there  should  be 
but  one  child  issue  of  the  marriage,  or,  if  more 
than  one,  and  all  but  one  should  die  without 
having  become  entitled,  then  in  trust  for  such 
only  or  surviving  child  at  the  time  thereinbefore 
limited  or  appointed  ;  and,  in  case  there  should 
not  be  any  issue  of  the  intended  marriage,  upon 
certain  trusts  therein  mentioned.  The  wife  by 
will  appointed  part  of  the  trust  fund  to  the  five 
children  of  her  late  son  W.  A. : — Held,  that  the 
word  "  issue  "  in  the  power  of  appointment  must 
be  construed  in  its  strictly  technical  meaning, 
and  that  therefore  the  appointment  was  valid. 
Warren'*  Trusts,  In  re,  26  Ch.  D.  208  ;  53  L.  J., 
Ch.  78T ;  50  L.  T.  454  ;  32  W.  R.  641— Pear- 
son, J. 

There  is  no  absolute  rule  that,  because  the 
word  "  i*sue  "  is  used  in  one  or  more  clauses  of 
a  settlement  as  meaning  "  children  "  only,  it 
must  receive  the  same  construction  in  every 
other  clause.    lb. 

Objects  of  Power — "  Issue  then  in  being" 


— Vesting  of  Estate,  Time  o£] — By  a  settlement 
made  on  his  marriage,  the  settlor  granted  free- 
hold lands  to  trustees  upon  trust  for  himself 
for  life  and  after  his  death  to  convey  the 
lands  and  pay  the  rents  and  profits  "unto  or 
for  the  benefit  of  all  and  every  or  any  one  or 
more  child  or  children,  or  any  grandchild  or 
grandchildren  or  other  issue  then  in  being  of 
the  said  intended  marriage  "  for  such  estate  or 
interest  and  in  such  shares  and  subject  to  such 
conditions  as  the  settlor  should  by  deed  or  will 
appoint.  There  was  issue  of  the  marriage  seve- 
ral children  who  all  attained  twenty-one.  The 
settlor  appointed  a  portion  of  the  lands  to  his 
eldest  son,  then  of  age,  his  heirs  and  assigns, 
and  joined  with  him  in  mortgaging  this  portion. 
The  son  having  died  in  his  father's  lifetime : — 
Held,  that  upon  the  true  construction  of  the 
settlement  the  words  "  then  in  being  "  governed 
only  the  words  "  grandchild  or  grandchildren  or 
other  issue,"  and  not  the  words  "child  or 
children  ; "  that  the  appointment  was  therefore 
valid,  and  that  the  fee  passed  under  the  mort- 
gage. Leader  v.  Duffey,  13  App.  Cas.  294 ;  58 
L.  J.,  P.  C.  13  ;  59  L.  T.  9— H.  L.  (Ir.). 

Power  to  A.  and  B.  Jointly  and  to  Sur- 
vivor —  Revocation  of  Joint  Appointment  by 
Survivor.] — By  a  marriage  settlement  a  sum 
of  stock  was  settled  upon  trust  (after  the  decease 
of  the  husband  and  wife)  for  the  children  of  the 
marriage  as  the  husband  and  wife  should  by 
deed,  with  or  without  power  of  revocation,  jointly 
appoint ;  and  in  default  of  such  appointment, 
and  so  far  as  any  such  appointment  should  not 
extend,  then  as  the  survivor  should  by  deed  or 


will  appoint.  The  husband  and  wife  by  deed 
appointed  the  fund  amongst  their  children  in 
certain  shares.  The  deed  reserved  a  power  of 
revocation  to  the  husband  and  wife  or  the 
survivor.  The  wife  died,  and  the  husband  by 
deed  revoked  the  former  appointment,  and  irre- 
vocably appointed  the  fund  amongst  the  children 
in  shares  differing  from  those  given  by  the 
original  appointment : — Held,  that  it  was  com- 
petent to  the  husband  and  wife  to  reserve  a 
power  to*  the  survivor  of  them  to  revoke  the  joint 
appointment,  and  that  therefore  the  deed  of 
revocation  and  new  appointment  executed  bj 
the  husband  was  valid.  Dixon  v.  Pyner,  55  L  J., 
Ch.  566  ;  54  L.  T.  748 ;  34  W.  R.  628— Kay,  J. 

Exercise  by  Will— Lapse — Covenant  for 


further  Assurance — Estoppel.] — By  a  marriage 
settlement,  dated  in  1863,  after  reciting  that 
B.,  the  wife,  was  "  seised  of  or  otherwise  well 
entitled  to "   the   freeholds   therein  described 
(subject  to  the  life  estate  of  J.  C.  P.),  and  that 
she  was  entitled  to  leaseholds  and  other  personal 
estate,  the  freeholds  were  conveyed  to  trustee* 
(subject  to  the  life  estate  of  J.  C.  P.),  and  the 
leasehold  and  personal  estate  were  assigned  to 
them  upon  trust  as  to  10,000/.  for  B.  for  life, 
and  afterwards  for  A.  (the  husband)  for  life,  and 
subject  thereto,  as  to  all  the  realty  and  personalty 
as  B.  should  appoint,  and  in  default  in  trust  for 
B.  for  life,  and  if  she  should  predecease  her  hus- 
band, in  trust  as  to  the  realty  for  her  heirs,  and 
as  to  her  personalty  for  her  next  of  kin  as  if  she 
had  died  unmarried.    The  settlement  contained 
the  usual  covenant  for  further  assurance.   At 
the  date  of  the  settlement  it  was  believed  that  B. 
was  entitled  to  the  entirety  of  the  freeholds  and 
leaseholds,  subject  to  the  life  estate  of  J.  C.  Pn 
whereas  she  was  entitled  only  to  thirteen-sx- 
teenths  thereof,  and  J.  C.  P.  was  then,  and  to 
the  time  of  his  death,  entitled  to  three-sixteenths. 
J.  C.  P.  died  in  1866,  having  by  his  will  given 
his  property  to  B.    B.  made  her  will  in  1880, 
and  in  exercise  of  the  powers  in  the  settlement, 
and  of  every  other  power,  gave  all  the  freehold* 
and  leaseholds  to  W.  W.  P.  and  T.  H.  P.  equallj, 
and  the  rest  of  the  personal  estate  to  trustees  to 
divide  between  J.  B.  P.,  W.  W.  P.  and  T.  E.  P. 
B.  made  a  codicil  in  1880,  revoking  the  gift  of 
any  moneys  accumulated  from  the  settled  pro- 
perty, and  giving  the  same  to  her  husband. 
T.  H.  P.  died  in  B.'s  lifetime  without  issue:— 
Held,  that  B.  had  made  the  personal  estate,  which 
was  included  in  the  residuary  gift,  part  of  her 
own  assets,  and  that  so  far  as  it  lapsed  it  passed 
to  her  next  of  kin,  as  though  at  her  death  it  had 
belonged  to  her  absolutely.    Held,  also,  that  the 
person  claiming  under  the  appointment  had,  at 
regards  the  three-sixteenths  of  the  freeholds, 
the  right  to  insist  upon  that  claim,  either  on  the 
ground  that  the  recital  in  the  settlement  amounted 
to  an  estoppel,  or  that  he  had  an  equity  to 
enforce  the  covenant  for  further  assurance;  that 
B.  had  made  the  property  part  of  her  estate,  and 
that  so  far  as  it  lapsed  it  devolved  upon  her  heirs- 
at-law.    Horton,  In  re,  Horton  v.  Perk*,  51  L.  T. 
420— Kay,  J. 

b.    Election. 

Settlement  on  Marriage  of  Female  Infant— 
Restraint  on  Anticipation— Covenant  to  settls 
After-acquired  Property.] — The  doctrine  of 
election  is  founded  on  the  presumption  of  a 
general  intention  that  every  part  of  an  instm- 


961 


HUSBAND    AND    WIFE. 


962 


ment  shall  take  effect,  and  the  presumption  of 
such  general  intention  may  be  rebutted  by  an 
inconsistent  particular  intention  apparent  in  the 
instrument.  Therefore,  where  a  marriage  set- 
tlement settled  a  fund  for  the  separate  use  of  the 
vile  for  life  with  restraint  on  anticipation,  and 
contained  a  covenant  by  the  wife  (then  an  infant) 
to  settle  future  property  : — Held,  that  the  wife 
could  not  be  compelled  to  elect  between  af  ter- 
aoqoired  property  and  her  interest  in  the  settled 
fond,  but  was  entitled  to  retain  both.  Vardorit 
Trust,  In  re,  31  Ch.  D.  275  ;  55  L.  J.,  Ch.  259  ; 
53  L.  T.  895 ;  34  W.  B.  185— C.  A.  See  also 
Wkeatley,  In  re,  ante,  col.  923,  and  Queade's 
Trusts,  In  re,  ante,  coL  947. 


o.  Forfeiture  Glauses. 

Meet  of  words  "  commit,  permit,  or  suffer."] 
—Under  the  terms  of  a  marriage  settlement  the 
rents  and  profits  of  lands  were  payable  to  M.  for 
life,  or  until  he  should  be  adjudged  a  bankrupt 
44  or  should  commit,  or  knowingly  permit,  or 
■offer  to  be  committed,  any  act  whereby  his 
interest  in  all  or  any  of  the  said  several  lands,  or 
any  part  thereof,  might  become  the  property  of 
t  thud  party  for  any  time  or  term  whatsoever,*' 
or  that  the  lands,  or  any  part  of  them,  should  be 
taken  in  execution,  or  any  proceedings  taken  to 
sell  same,  by  any  person  or  persons  whatsoever. 
A  judgment  was  obtained  against  M.,  a  writ  of 
fi.  fa.  issued,  and  some  cows  were  seized  by  the 
sheriff  but  returned,  the  debt  having  been 
paid: — Held,  that  under  the  words  "  commit,  or 
knowingly  permit,  or  suffer  to  be  committed, 
any  act  whereby  his  interest  might  become  the 
property  of  a  third  party,"  no  forfeiture  of  M.'s 
interest  in  the  lands  had  occurred.  Ryan,  In  re, 
19  L.  R.,  Ir.  24— Bk. 

Charging  order—"  Assigns."] — By  a  marriage 
settlement  the  annual  income  of  the  trust  fund 
vis  given  to  the  husband  "  and  his  assigns  "  for 
his  life  or  until  he  should  make,  or  attempt  to 
make,  any  assignment  of  the  income  or  any  part 
thereof,  or  to  charge  or  incumber,  or  attempt  to 
charge  or  incumber  the  same  ;  the  settlement 
contained  limitations  over.  The  husband  mort- 
gaged his  life  interest,  and  charging  orders,  in 
respect  of  certain  judgments,  had  been  made 
against  his  life  interest.  It  was  contended  that 
the  effect  of  the  addition  of  the  word  "  assigns  " 
wis  that  the  husband's  life  interest  was  absolute, 
and  the  forfeiture  clause  void : — Held,  that 
the  construction  contended  for  was  too  wide ; 
that  the  charging  orders  were  not  within  the 
clause ;  that  effect  could  be  given  to  the  clause 
against  alienation  and  at  the  same  time  to  the 
word  M  assigns, "  and  further  that  the  charging 
orders  were  valid  against  the  income  up  to  the 
date  of  the  mortgage,  but  that  the  mortgage 
operated  so  as  to  work  a  forfeiture  of  the  life 
interest  Kelly's  Settlement,  In  re,  West  v. 
Inner,  69  L.  T.  494— Chitty,  J. 

Iflwt  of  Bankruptcy.]— See  Bankruptcy, 
XVII. 


3.  ENFORCING  COVENANTS. 

Corenamt  to  Settle  After-acquired  Property — 
▼oruteer  Claiming  Benefit — Defective  Execu- 


tion of  Power.] — The  maxim  that  equity  looks 
upon  that  as  done  which  ought  to  be  done,  applies 
only  (in  cases  depending  on  contract)  in  favour 
of  persons  who  are  entitled  to  enforce  the  con- 
tract, and  cannot  be  invoked  by  volunteers.  By 
a  marriage  settlement  executed  in  1853,  certain 
personal  estate  was  assigned  to  trustees  upon 
trust  in  case  the  husband  should  die  in  the  life- 
time of  the  wife,  and  there  should  be  no  children 
of  the  marriage,  to  stand  possessed  thereof  for 
the  wife,  her  executors,  administrators,  and 
assigns.  The  settlement  contained  a  covenant 
by  the  husband  and  wife  that  any  real  estate  to 
which  the  wife  should  become  entitled,  whether 
in  possession,  reversion,  remainder,  or  expectancy, 
or  over  which  she  should  have  an  absolute  power, 
should  be  assured  to  the  trustees  to  be  held  by 
them  upon  the  same  trusts  as  the  above-mentioned 
personal  estate,  or  as  near  thereto  as  the  nature 
of  the  property  would  admit  of,  and  until  so 
assured  should  be  subject  to  the  trusts  and 
enjoyed  accordingly.  By  a  deed  executed  in 
1873,  certain  lands  called  the  Stonehouse  pro- 
perty were  conveyed  to  trustees  for  the  wife 
during  the  joint  lives  with  restraint  on  anticipa- 
tion, remainder  to  her  for  life,  remainder  as  she 
should  by  deed  or  will  appoint,  and  in  default  of 
appointment  to  the  husband  in  fee.  By  a  codicil 
to  her  will  made  in  her  husband's  lifetime  the 
wife  devised  the  Stonehouse  property  to  two 
persons.  The  husband  died  in  May,  1882,  and 
the  wife  in  the  month  of  June  following.  She 
never  republished  her  will  or  codicils.  There  were 
no  children  of  the  marriage,  and  the  Stonehouse 
property  was  never  assured  to  the  trustees  on 
the  trusts  of  the  marriage  settlement.  In  an 
action  to  administer  the  real  and  personal  estate 
of  the  wife  : — Held,  that  the  covenant  to  assure 
after-acquired  property  could  not  be  enforced  or 
treated  as  operative  in  favour  of  the  heir-at-law, 
that  the  declaration  of  trust  annexed  to  it  could 
not  be  regarded  in  his  favour  as  a  defective 
execution  of  a  power  which  the  court  would  cure, 
and  that  the  codicil  being  a  good  execution  of 
the  power  of  appointment  contained  in  the  deed 
of  1873,  the  two  devisees  therein-mentioned  were 
entitled  to  the  Stonehouse  property.  Anstis,  In 
re.  Chettwnd  v.  Morgan,  31  Ch.  D.  596  ;  54  L.  T. 
742  ;  34  W.  R.  483— C.  A. 

Post-nuptial— Voluntary  as  to  Children,]— 
Where  a  post-nuptial  settlement  has  been 
executed  by  a  husband  and  wife  in  consideration 
of  an  exchange  of  interests  between  them,  such 
a  settlement,  though  for  value  as  between  them- 
selves, is  voluntary  as  regards  the  children  of 
the  marriage,  and  specific  performance  of  a 
covenant  to  surrender  copyholds  cannot  be 
enforced  by  them.  Greene.  Paterson,  32  Ch.  D. 
95  ;  56  L.  J.,  Ch.  181 ;  54  L.  T.  738 ;  34  W.  R. 
724— C.  A. 


4.  RECTIFICATION  AND  CANCELLATION. 

Rectification— Agenoy  of  Wife's  Father.]— 
A  father  living  on  affectionate  terms  with  his 
daughter  is  the  proper  person  to  recommend  and 
advise  her,  and  her  natural  agent  in  matters 
relating  to  the  preparation  and  provisions  of  her 
marriage  settlement,  and  there  iB  no  occasion  for 
any  independent  legal  advice  beyond  that  of  the 
family  solicitor  who  is  preparing  the  settlement. 
If,  however,  the   father   is  taking  under  the 

II 


968 


INDIA. 


964 


settlement  a  benefit  from  the  daughter,  she 
ought  to  be  separately  advised.  Smith  v.  lliffe 
(20  L.  R.  Eq.  666)  disapproved.  Wollaston  v. 
3W&*  (9  L.  R.,  Eq.  44)  doubted.  Tucker  v. 
tf«wwtt,88  Ch.D.  1 ;  67  L.  J.,Ch.  607  ;  68L.T. 
660— 0.  A. 

The  court  will  not  apply  to  the  consideration 
of  provisions  in  favour  of  volunteers  contained 
in  a  contract  founded  on  marriage,  the  principles 
on  which  it  would  act  in  considering  provisions 
contained  in  a  voluntary  settlement.  lb.  Per 
Cotton,  KJ. 

Cancellation— Inchoate  Marriage  Settlement] 
— In  contemplation  of  marriage,  an  intended 
wife  and  her  father  executed  the  engrossment  of 
a  settlement  of,  inter  alia,  funds  to  be  provided 
by  the  father,  and  the  present  and  after-acquired 
property  of  the  intended  wife.  The  engrossment 
was  given  into  the  custody  of  the  solicitors  of 
the  intended  husband ;  it  was  not  executed  by 
him  or  the  trustees.  The  engagement  was  broken 
off  by  agreement.  After  the  lapse  of  three  and 
a  half  years  the  court  declared  the  engrossment 
void  as  a  settlement,  and  directed  it  to  be  given 
up.  Bond  v.  Walford,  32  Ch.  D.  238  ;  66  L.  J., 
Ch.  667 ;  64  L.  T.  672— Pearson,  J. 

By  a  settlement  executed  in  1877,  in  considera- 
tion of  a  then  intended  marriage,  it  was  declared 
that  a  sum  of  stock,  the  property  of  the  intended 
wife,  which  had  been  transferred  by  her  to  two 
trustees,  should  be  held  by  them  on  trust  for  the 
benefit  of  the  intended  wife,  the  intended  hus- 
band, and  the  issue  of  the  intended  marriage. 
The  marriage  was  not  solemnized,  but  the  parties 
cohabited  without  marriage,  and  three  children 
were  born.  In  1883  an  action  was  brought  by 
the  father  and  mother  against  the  trustees  of  the 
settlement,  to  obtain  a  transfer  of  the  fund  to 
the  mother :—  Held,  that  the  contract  to  marry 
had  been  absolutely  put  an  end  to,  and  that  the 
court  could  order  the  stock  to  be  transferred  to 
the  lady.  Essery  v.  Cowlard,  26  Ch.  D.  191  ;  53 
L.  J.,  Ch.  661 ;  51  L.  T.  60 ;  32  W.  R.  518— 
Pearson,  J. 


Rescission — Fraud  before  Marriage.] — In  an 
action  to  set  aside  a  marriage  settlement,  the 
plaintiff  alleged,  as  the  ground  of  his  action,  that 
previous  to  the  execution  of  the  settlement  made 
upon  the  marriage  between  himself  and  I.  S.,  the 
latter  stated  to  him  that  her  first  husband  had 
been  divorced  from  her,  at  her  suit,  by  reason  of 
his  cruelty  and  adultery,  and  that  she  had  not 
herself  been  guilty  of  adultery  ;  that  such  state- 
ments were  made  to  induce  him  to  execute  the 
settlement  and  contract  the  marriage ;  that  in 
reliance  on  the  representations,  he  executed  the 
settlement  and  married  I.  S. ;  that  he  subsequently 
discovered  that  the  representations  were  false  to 
the  knowledge  of  I.  S.,  and  that  she  herself  had 
been  divorced  from  her  husband  at  his  suit  and 
by  reason  of  her  adultery  : — Held,  on  motion  by 
the  defendant,  that  the  plaintiff's  statement  of 
claim  must  be  struck  out  under  Ord.  XXV.  r.  4, 
as  disclosing  no  reasonable  ground  of  action. 
Johnston  v.  Johnston,  62  L.  T.  76  ;  33  W.  R.  239 
— C.  A.  Affirming  53  L.  J.,  Ch.  1014— Pearson, 
J. 


ILLEGALITY. 

Of  Oontracts.]— See  Contract,  III.,  3. 

Of  Companies— Hon-registration.]— Set  Cox- 
pant,  I.,  3,  a. 


IMPRISONMENT. 

Of  Debtors.]— See  Dbbtobs  Act. 

Of  Criminals.]  —  See   Pbisonb— Cbimihal 
Law. 

False  Imprisonment] — See  Malicioub  Pro- 
secution. 


INCLOSTJRE. 

See  COMMONS. 


INCOME   TAX 


See  REVENUE. 


INCUMBENT. 

See  ECCLESIASTICAL  LAW. 


INDEMNITY. 

See  PRINCIPAL  AND  SURETY. 


INDIA. 

Bombay  Civil  Fund— Mode  of  Trial]— On  as 
application  to  the  Court  of  Appeal  under  is* 
Bombay  Civil  Fnnd  Act,  1882,  to  prescribe  the 
manner  of  trial  of  a  question  alleged  by  the  ap- 
plicant to  arise  between  him  and  the  Secretarr 
of  State  for  India  as  to  the  liability  of  the  fund, 
the  court  will  not  enter  into  any  inquiry  as  to 
the  nature  of  the  applicant's  claim.  Form  of 
directions  as  to  the  manner  in  which  the  ques- 
tion shall  be  tried.  Bombay  Civil  Fund  Act,  /• 
re,  1882,  Pringle,  Ex  parte,  39  Ch.  D.  300 ;  60 
L.  T.  81— C.  A. 


966 


INFANT— Contracts. 


966 


INDICTMENT. 


Set  CRIMINAL  LAW. 


INDUSTRIAL  SCHOOLS. 

See  SCHOOL. 


INDUSTRIAL   SOCIETY. 

Mortgage  by  Member  of  Property  and  "  Other 
Honeys" — Defalcations.] — H.,  a  member  of  the 
defendant  society,  mortgaged  to  the  society  certain 
property  to  secure  principal  money  payable  by 
certain  instalments,  with  interest  and  subscrip- 
tions, and  "other  moneys  becoming  due  from 
the  mortgagor  to  the  defendant  society."  H. 
was  also  secretary  of  the  society,  and  in  that 
capacity  had  received  and  misapplied  moneys 
belonging  to  the  society.  He  had  conveyed  the 
equity  of  redemption  in  the  mortgaged  property 
to  the  plaintiff,  who  claimed  to  redeem  on  pay- 
ment of  the  mortgage  debt,  with  interest,  sub- 
scriptions, fines,  and  other  payments  due  from 
H.  as  member.  The  society  claimed  in  addition 
to  this  the  amount  which  H.  had  embezzled, 
contending  that  it  came  within  the  words  "  other 
moneys'* : — Held,  that  the  words  applied  to  debts 
ejosdem  generis  with  what  had  been  mentioned 
beforehand  that  the  sums  which  H.  had  embezzled 
vere  not  ejnsdem  generis  with  the  mortgage 
debt,  interest,  and  subscriptions,  but  were  due 
from  H.  on  a  totally  different  contract,  and  the 
■ociety  could  not  insist  upon  the  plaintiff  paying 
inch  suns  before  redeeming  the  property.  Bailee 
t.  fknderland  Equitable  Industrial  Society,  55 
lw  T.  808 ;  51J.  P.  310— Stirling,  J. 


INFANT. 

h  Contracts,  966. 
IL  Marriage  Settlements,  967. 
HI.  Property,  969. 

IV.  Maintenance,  971. 

V.  Guardians,  975. 

TL  Ward  of  Court,  976. 
VH.  Custody,  977. 
V1IL  Religious  Education,  980. 


IX.  Actions  and   Proceedings   bt  and 

Against,  980. 

X.  Legitimacy  of.  — See  Husband  and 

Wipe,  I.,  4. 

XI.  Advancement  ov.—See  Advancement. 


I.  CONTRACTS. 

Necessaries — Evidence.]— Where  an  infant  is 
sued  for  the  price  of  goods  supplied  to  him  on 
credit,  he  may,  for  the  purpose  of  showing  that 
they  were  not  necessaries,  give  evidence  that, 
when  the  order  was  given,  he  was  already  suffi- 
ciently supplied  with  goods  of  a  similar  descrip- 
tion, and  it  is  immaterial  whether  the  plaintiff 
did  or  did  not  know  of  the  existing  supply. 
Ryder  v.  Wombwell  (3  L.  R.,  Ex.  90)  dissented 
from.  Baines  or  Barnes  v.  Toye,  13  Q.  B.  D.  410 ; 
53  L.  J.,  Q.  B.  567  ;  51  L.  T.  292  ;  33  W.  R.  16 ; 
48  J.  P.  664— D. 

Where  an  infant  is  sued  for  the  price  of  goods 
sold  to  him  on  credit,  he  may,  for  the  purpose 
of  showing  that  they  were  not  necessaries,  give 
evidence  to  show  that  at  the  time  of  the  sale  he 
was  sufficiently  provided  with  goods  of  the  kind 
supplied.  Ryder  v.  Wombwell  (3  L.  R.,  Ex. 
90)  dissented  from.  Barnes  v.  Toye  (13  Q.  B. 
D.  410),  approved.  Johnstone  v.  Marks,  19  Q. 
B.  D.  509  ;  57  L.  J.,  Q.  B.  6  ;  35  W.  R.  806— D. 

For  Benefit  of  Infant — Injunction  to  restrain 
Breach.] — An  infant  contracted  with  a  dairy- 
man to  enter  his  employment  at  a  salary  of  11. 
a  week,  and  agreed  that  he  would  not  serve  for 
his  own  benefit  any  of  his  employer's  customers 
during  the  time  he  remained  in  such  employ- 
ment, or  for  two  years  afterwards,  and  that  two 
weeks'  notice  to  leave  was  to  be  given  on  either 
side : — Held,  that  this  contract  was  beneficial 
to  the  infant,  and  could  be  enforced  by  in- 
junction against  him,  and  that  s.  1  of  the 
Infants'  Relief  Act,  1874,  does  not  apply  to  such 
a  contract.  Fellows  v.  Wood,  69  L.  T.  513  ;  62 
J.  P.  822— D. 


Apprenticeship  Deed.] — An  infant  was 


apprenticed  by  a  deed  containing  a  provision  that 
the  master  should  not  be  liable  to  pay  wages  to 
the  apprentice  so  long  as  his  business  should  be 
interrupted  or  impeded  by  or  in  consequence  of 
any  turn-out,  and  that  the  apprentice  might 
during  any  such  turn-out  employ  himself  in  any 
other  manner  or  with  any  other  person  for  his 
own  benefit : — Held,  that,  this  provision  not 
being  for  the  benefit  of  the  infant,  the  appren- 
ticeship deed  could  not  be  enforced  against  the 
infant  under  the  Employers  and  Workmen  Act, 
1875,  ss.  5,  6.  Mcakin  v.  Morris,  12  Q.  B.  D. 
352  ;  53  L.  J.,  M.  C.  72  ;  32  W.  R.  661 ;  48  J.  P. 
344— D. 

Promise  of  Marriage— Ratification— Fresh 
Promise.]— The  plaintiff  and  defendant,  who 
were  both  under  age,  became  engaged  to  be 
married  in  April,  1886.  In  September,  1886,  the 
defendant  came  of  age.  In  October,  1886,  the 
plaintiffs  father  made  an  assignment  of  his  pro- 
perty to  his  creditors,  and  immediately  after- 
wards informed  the  defendant  of  the  fact,  and 
told  him  if  he  wished  to  be  released  from  his 

I  I  3 


967 


INFANT — Marriage  Settlements. 


968 


engagement  he  could.  The  defendant  then  re- 
fused to  be  released,  and  said  he  was  quite  will- 
ing to  marry  the  plaintiff,  and  asked  her  whether 
she  thought  they  were  old  enough ;  to  which  the 
plaintiff  replied  they  had  better  wait  awhile. 
The  defendant  subsequently  broke  off  the  en- 
gagement, and  refused  to  marry  the  plaintiff  : — 
Held,  that  there  was  evidence  to  go  to  the  jury 
that  there  had  been  a  new  promise  to  marry 
made  by  the  defendant  after  he  came  of  age. 
Holmes  v.  Brierley,  36  W.  R.  795— C.  A.  Re- 
versing 69  L.  T.  70 ;  52  J.  P.  711— D. 


II.  MARRIAGE  SETTLEMENTS. 

Confirmation — Joint  Tenancy — Severance — 
Caterorum  Grant] — Where  on  the  marriage  of 
a  female  infant  her  interest  as  one  of  several 
joint  -  tenants  in  a  reversionary  property  is 
settled,  the  settlement  requires  no  confirma- 
tion, but,  though  voidable,  is  valid  and  effectual 
until  avoided,  and  operates  to  sever  the  joint- 
tenancy.  Smith  v.  Lucas  (18  Ch.  D.  531)  con- 
sidered. Burnaby  v.  Equitable  Reversionary 
Interest  Society,  28  Ch.  D.  416  ;  54  L.  J.,  Ch. 
466  ;  62  L.  T.  360  ;  33  W.  R.  639— Pearson,  J. 

In  such  a  case  the  lady,  in  exercise  of  a  power 
of  appointment  given  her  by  the  settlement, 
appointed  by  her  will  all  the  property  over 
which  she  had  any  power  of  appointment  or 
disposition  to  her  husband  absolutely,  and  ap- 
pointed him  her  executor  :— Held,  that  the 
husband  could  make  a  good  title  to  the  wife's 
interest  in  the  reversionary  property  without 
obtaining  any  CKterorum  grant.  Held  also, 
tliat  the  husband's  title  derived  as  above  was 
sufficiently  clear  to  be  forced  upon  a  purchaser 
— lb. 

Pott-nuptial— Jurisdiction  of  Court  to  Order — 
Infants'  Settlement  Aot,  1855.1— The  court  has 
jurisdiction  in  a  case  where  a  female  infant  has 
married  under  the  age  of  seventeen,  after  she 
has  attained  that  age,  to  direct  a  proper  settle- 
ment of  her  property  to  be  executed.  Phillips, 
In  re,  34  Ch.  D.  467  ;  56  L.  J.,  Ch.  337  ;  66  L.  T. 
144  ;  35  W.  R.  284— Chitty,  J. 

The  Infants1  Settlement  Act,  1855  (18  &  19  Vict, 
c  43)  removed  the  disability  of  infancy  only, 
leaving  unaffected  the  disability  of  coverture. 
In  1862  an  infant  ward  of  court  married  without 
the  sanction  of  the  court.  An  inquiry  as  to  her 
fortune  having  been  shortly  afterwards  directed 
by  the  court,  a  post-nuptial  settlement  was  exe- 
cuted by  her  in  1863,  with  the  approval  of  the 
Vice-chancellor,  whereby  she  settled  her  pro- 
perty, a  reversionary  interest  in  personalty  under 
a  will,  upon  trusts  for  herself  for  life,  with  the 
remainder  for  the  children  of  the  marriage.  The 
testator  having  died  before  Malms'  Act  (20  &  21 
Vict.  c.  57)  came  into  force,  that  act  had  no  ap- 
plication. There  was  issue  of  the  marriage. 
During  coverture  the  wife  recognized  the  settle- 
ment by  various  acts,  and  after  a  dissolu- 
tion of  the  marriage  had  been  decreed  on  her 
petition,  she  successfully  petitioned  the  Probate, 
Divorce  and  Admiralty  Division  to  vary  the 
terms  of  the  settlement.  The  reversionary  in- 
terest having  fallen  into  possession  after  the  dis- 
solution of  the  marriage : — field,  that  neither 
the  sanction  of  the  court  nor  the  effect  of  that 
act  could  make  the  settlement  of  the  wife's 
reversionary  interest  in  personalty  binding  upon 


her ;  that  no  acts  of  acquiescence  and  con- 
firmation could  have  that  effect  unless  they 
amounted  (which  these  acts  did  not)  to  an 
actual  disposition  by  her  of  the  property  (while 
discoverte)  to  the  trustees  of  the  settlement, 
and  that  she  was  entitled  to  a  transfer  of  the 
property.  Seaton  v.  Sea: on,  13  App.  Cas.  61; 
57  L.  J.,  Ch.  661 ;  58  L.  T.  665  ;  36  W.  R.  865— 
H.  L.  (E.). 

A  post-nuptial  settlement  of  an  infant's  pro- 
perty may  be  made  with  the  sanction  of  the 
court  under  the  Infants'  Settlement  Act,  1855. 
Sampson  and  Wall,  In  re,  or  Wall,  In  re,  25 
Ch.  D.  482  ;  53  L.  J.,  Ch.  457  ;  50  L.  T.  435 ;  32 
W.  R.  617— C.  A. 


Trustees — Form   of   Settlement]—  S. 


having  married  a  ward  of  court,  in  contempt 
of  court,  was  committed  to  prison,  and  a  settle- 
ment was  prepared  by  the  order  of  the  court  of 
the  wife's  property,  giving  8.  no  interest  in  the 
property,  and  containing  a  power  of  appointment 
by  will  to  the  wife  in  default  of  cnildren  in 
favour  of  any  one  except  her  husband.  The 
wife  objected  to  the  trustees  named  in  the  pro- 
posed settlement  on  personal  grounds,  and 
objected  also  to  the  power  of  appointment  in 
default  of  children  excluding  her  husband,  and 
refused  to  execute  the  settlement : — Held,  that  it 
was  desirable  that  trustees  of  the  settlement 
should  be  persons  with  whom  the  parties  in- 
terested could  hold  friendly  intercourse,  and  that 
as  the  proposed  trustees  were  personally  distaste- 
ful to  the  wife,  it  was  desirable  to  substitute 
other  trustees  for  them.  That  as  to  the  power 
of  appointment  by  will  by  the  wife  in  default  of 
children,  it  wonld  be  conducive  to  the  happiness 
of  the  husband  and  wife  during  their  married 
life  that  the  wife  should  not  be  debarred  in 
default  of  children  from  appointing  anything  to 
her  husband,  and  the  settlement  was  therefore 
directed  to  be  altered  in  those  respects.    It* 

Disentailing  Assurance  —  Female  Infant - 
Omitted  Property— Mistake.]— A  public  body 
took,  under  compulsory  powers,  certain  freeholds 
at  A.  to  a  moiety  of  which  (together  with  much 
other  property)  a  female  infant  ward  of  court 
was  entitled  as  one  of  two  tenants  in  common  in 
tail,  and  they  paid  the  purchase-moneys  into 
court.  Afterwards,  and  while  the  ward  was  still 
an  infant,  proposals  for  a  settlement  upon  her 
marriage  were  carried  in  on  her  behalf  under  the 
Infants'  Settlement  Act,  1865,  in  which  it  was 
stated  that  she  was  entitled  as  tenant  in  common 
in  tail  to  certain  specified  properties,  and  that  it 
was  proposed  to  bar  the  entail  in  the  lady's 
share  in  such  properties,  and  to  vest  the  whole  of 
such  share,  except  13,000/.,  in  trustees  to  be  held 
upon  certain  trusts.  Amongst  the  properties  so 
specified  were  included  by  inadvertence  the 
freeholds  at  A.  A  settlement  founded  on  these 
proposals  was  sanctioned  by  the  court,  and 
was  carried  out  in  1884  by  a  disentailing 
deed,  and  a  deed  of  declaration  of  trust, 
both  of  which  were  approved  by  the  court  Tho 
freehold  property  at  A.  was  included  in  the 
parcels  to  the  disentailing  deed,  but  no  mention 
of  the  f and  in  court  arising  from  the  purchase- 
money  of  this  property  was  made,  either  in  the 
proposals  or  in  the  deeds ;  and  the  disentailing 
deed  contained  no  covenant  for  farther  as- 
surances, or  for  the  settlement  of  other  or  after- 
acquired  property.     The  marriage  took  place, 


969 


INFANT— Property. 


970 


and  afterwards,  in  1886,  the  lady  attained 
twenty-one,  disentailed  the  fund  in  court,  and 
claimed  it  as  being  her  absolute  property  under 
the  Married  Women's  Property  Act,  and  un- 
affected by  her  marriage  settlement.  In  an 
action  by  the  trustees  of  the  marriage  settlement 
to  establish  their  title  to  the  funds  in  court : — 
Held,  that  the  disentailing  deed  of  1884  was  not 
effectual  to  bar  the  estate  tail  of  the  lady  in 
the  fund  in  court ;  and  that  although  in  the 
absence  of  any  contract  binding  the  lady  to 
settle  the  freeholds  at  A.,  the  settlement  could 
not  be  rectified,  yet  inasmuch  as  both  the 
marriage  and  the  settlement  were  sanctioned  by 
the  court  upon  the  faith  of  a  representation 
made  on  behalf  of  the  lady  that  she  was  entitled 
in  tail  to  a  moiety  of  the  property,  the  purchase- 
money  of  which  was  represented  by  the  fund  in 
court,  she  was  bound  in  equity  to  make  good 
such  representation,  notwithstanding  her  infancy 
at  the  time  it  was  made ;  and  that  haying 
disentailed  the  fund  in  court,  and  thus  become 
the  only  person,  besides  the  plaintiffs,  who  could 
claim  any  interest  in  it,  she  was  precluded  from 
setting  up  any  title  to  the  fund  in  court  adverse 
to  that  of  the  plaintiffs  as  trustees  of  the  settle- 
ment, and  that  one  moiety  of  such  fund  ought 
to  be  transferred  to  and  held  by  them  upon  the 
trusts  of  the  settlement  Mills  v.  Fox,  37  Ch.  D. 
153 ;  67  L.  J.  Ch.  56  ;  67  L.  T.  792  ;  36  W.  R. 
219-8tirling,  J. 

Costs— Payment  out  of  Corpus.]— The  costs 
of  a  settlement  of  the  property  of  a  female  ward 
of  court,  made  upon  her  marriage  with  the  sanc- 
tion of  the  court,  were  ordered  to  be  paid  out  of 
the  corpus  of  the  settled  property.  Anonymous 
(4  Buss.  473)  followed.  De  Stacpoole  v.  Be 
UtaeoooU,  37  Ch.  D.  139  ;  57  L.  J.,  Ch.  463  ;  58 
L.  T.  382 ;  36  W.  R.  320— North,  J. 


IIL  PROPERTY. 

Sixreader  of  Lease.] — The  provisions  of  the 
Act  11  Geo.  4  &  1  Will.  4,  c.  65,  for  the  surren- 
der of  a  lease  to  which  an  infant  is  entitled, 
apply  to  a  lease  to  which  an  infant  is  only 
beneficially  entitled,  the  legal  estate  being  vested 
in  a  trustee  for  him.  Griffiths,  In  ref  29  Ch.  D. 
248 ;  64  L.  J.,  Ch.  742  ;  53  L.  T.  262  ;  33  W.  R. 
728— Pearson,  J. 

Payment  out  of  Court— Attainment  of  Age 
asoordiag  to  Law  of  Domidl.] — Funds  in  court 
in  this  country,  placed  to  the  separate  credit  of 
an  infant  domiciled  abroad,  were  paid  out  to  her 
on  Gaining  her  full  age,  according  to  the  law  of 
her  then  and  native  domicil,  although  she  had 
not  come  of  age  according  to  English  law. 
iAmohoe  v.  Donohoe,  19  L.  R.,  Ir.  349— V.-C. 

Small  Sum.]— Small  sums  of  money  re- 
presenting shares  of  infants  in  a  fund  in  court 
nay  be  directed  to  be  paid  out  by  the  Paymaster- 
General  into  the  Post-office  Savings  Bank  to 
accounts  in  the  names  of  the  infants.  Elliett  v. 
SUstt,  54  L.  J.,  Ch.  1142-Chitty,  J. 

Heck  in  Heme  of  Infant— Vesting  in  Guar- 
4iaa— Trustee  Acts.] — Stock  to  which  an  infant 
vat  absolutely  entitled  under  a  will  was  stand- 
ing in  her  own  name  alone.    The  will  contained 


no  direction  for  maintenance,  but  the  stock  con- 
stituted the  only  property  of  the  infant,  who 
was  domiciled  in  Scotland,  and  a  Scotch  court 
had  ordered  that  advances  should  be  made  out 
of  the  capital  of  her  property  for  the  purpose 
of  maintenance : — Held,  following  the  principle 
of  Gardner  v.  Cowles  (3  Ch.  D.  304),  that  the 
court  could  make  an  order  under  s.  3  of  the 
Trustee  Extension  Act,  1852,  vesting  in  the 
guardian  of  the  infant  the  right  to  transfer  the 
stock  and  receive  the  dividends.  ffindlay,  In  r», 
55  L.  J.,  Ch.  395— North,  J. 

Equitable  Mortgage  by  a  Testator— Power 
to  Mortgage  Estate.]— By  will  dated  the  12th 
October,  1881,  W.  K.  devised  to  W.  K.  G.  certain 
freehold  property  of  considerable  value.  The 
title-deeds  of  portion  of  the  property  had  been 
deposited  by  W .  K.  with  the  National  Bank,  by 
way  of  equitable  mortgage,  to  secure  a  debt  due 
to  them  ;  W.  K.  died  in  October,  1881,  and  the 
National  Bank  having  subsequently  brought  an 
action  in  the  Chancery  Division  for  recovery  of 
their  debt  by  sale  and  a  receiver,  the  court,  on 
the  application  of  W.  K.  G.  (who  was  a  minor, 
and  appeared  by  his  guardian),  gave  him  liberty, 
under  the  1  Wm.  4,  c.  47,  and  2  &  8  Vict,  c  60, 
to  raise  and  pay  the  amount  of  the  equitable 
mortgage  by  a  mortgage  of  the  devised  lands. 
National  Bank  v.  Gourley,  17  L.  R.,  Ir.  357— 
V.-C. 

Bight  of  Father  to  charge  on  Contingent 
Interest.] — The  court  refused  to  declare  that 
sums  advanced  by  a  father  for  the  benefit  of  his 
infant  son  were  a  charge  on  property  to  which 
the  son  would  become  entitled  only  in  the  event 
of  his  attaining  twenty-one.  Tanner,  In  re,  53 
L.  J.,  Ch.  1108  ;  51  L.  T.  507— Kay,  J. 

Semble,  the  court  has  no  jurisdiction  to  make 
such  a  charge,  and  the  only  proper  form  of 
order  in  such  a  case  is  that  in  ArouoMe,  In  rs, 
(14  W.  R.  435).    lb. 

Bailiff  for  Infants— Possession  as  Guardian 
by  Nurture  —  Liability  to  Account.]  —  The 
owner  of  a  public-house  and  cottages  devised 
them  to  his  widow  during  her  life  or  widow- 
hood, with  remainder  to  his  four  infant  chil- 
dren. His  widow  married  again,  but  continued 
to  reside  in  and  manage  the  public-house ; 
and  she  received  the  rents  of  the  cottages  and 
maintained  the  children.  One  of  the  children 
was  still  an  infant  married,  but  she  and  her 
husband  for  some  months  resided  in  the  public- 
house.  They  then  left  it,  and  had  not  since  re- 
ceived anything  from  the  estate  of  the  testator. 
She  and  her  husband  brought  an  action  against 
her  mother  for  one-fourth  of  the  rents  and 
profits  -.—Held,  that  after  her  second  marriage 
the  mother  was  in  possession  as  bailiff  for  her 
infant  children,  and  not  as  guardian  by  nurture, 
or  by  leave  of  her  children,  or  as  a  trespasser,  and 
was  therefore  a  trustee  and  liable  to  account ; 
that  though  on  the  daughter's  marriage  the  right 
to  receive  the  rents  passed  to  her  husband,  this 
did  not  change  the  character  of  the  mother's 
possession,  and  that  it  was  not  changed  when  the 
daughter  came  of  age : — Held,  therefore,  that  the 
mother  was  liable  to  account  to  the  daughter 
and  her  husband  for  the  rents  and  profits.  Wall 
v.  Stanivick,  34  Ch.  D.  763  ;  66  L.  J.,  Ch.  601 ; 
56  L.  T.  309  ;  35  W.  R.  701— Kekewich,  J. 


971 


INFANT — Maintenance. 


m 


Taunts  in  Common — Receipt  of  Rents  by 

Father.] — A  father  was  entitled  in  fee  to  an 
undivided  moiety  of  gavelkind  land,  the  other 
moiety  of  which  belonged  to  his  wife  in  fee. 
She  died  in  May,  1870,  leaving  two  sons,  Samuel 
and  John.  John  was  then  an  infant.  He 
attained  twenty -one  in  1877,  and  died  in  May, 
1884.  On  the  mother's  death  her  moiety 
descended  to  her  two  sons  in  equal  shares,  as 
her  co-heirs  by  the  custom  of  gavelkind,  but  the 
father  was  by  that  custom  entitled  to  a  moiety 
of  the  rents  of  her  moiety  so  long  as  he  remained 
a  widower.  On  the  mother's  death  he  entered 
into  the  receipt  of  the  whole  of  the  rents  of 
her  moiety,  and  continued  in  possession,  without 
accounting  to  his  sons  or  acknowledging  their 
title  in  writing,  for  more  than  twelve  years.  On 
the  death  of  John  in  1884,  his  interest  descended 
to  his  brother  Samuel  as  heir  of  the  mother.  In 
February,  1884,  the  father  had  married  a  second 
wife,  and  in  November,  1884,  he  died: — Held, 
tliat,  as  to  that  one-eighth  of  the  property  to 
which  John  became  entitled  in  possession  on  the 
death  of  his  mother,  the  father  must  be  taken  to 
have  entered  into  receipt  of  the  rents  as  bailiff 
for  his  infant  son,  and  that,  consequently,  the 
title  of  John  was  not  barred  by  s.  12  of  the  act 
3  &  4  Will.  4,  c.  27,  and  that  his  brother  Samuel 
was  entitled  to  that  one-eighth.  But  held,  that, 
as  to  Samuel's  own  one-eighth  the  same  pre- 
sumption did  not  arise,  and  that,  there  being  no 
evidence  that  the  father  had  received  the  rents 
as  agent  for  Samuel,  or  had  before  the  expiration 
of  the  statutory  period  acknowledged  his  title 
in  writing,  or  accounted  to  him  for  the  rents, 
the  title  to  that  one-eighth  was  barred  by  the 
statute.  Consequently,  Samuel  was  entitled  to 
three-eighths  of  the  whole  property  and  the 
remaining  five-eighths  passed  under  the  father's 
will.  Ho bbs,  In  re,  Hobbs  v.  Wade,  36  Ch.  D. 
553  ;  57  L.  J.,  Ch.  184  ;  58  L.  T.  9 ;  36  W.  R.  445 
— North,  J. 

IV.  MAINTENANCE. 

Oonveyancing  Act— Contingent  Legacy.]— 
Trustees  cannot,  under  section  43  of  the  Convey- 
ancing Act,  1881,  apply  the  income  of  an  infant's 
contingent  legacy  for  the  benefit  of  the  infant, 
unless  the  income  will  go  along  with  the  capital 
of  the  legacy  if  and  when  such  capital  vests. 
Judkiris  Trusts,  In  re,  26  Ch.  D.  743  ;  53  L.  J., 
Ch.  496  ;  50  L.  T.  200 ;  32  W.  R.  407— Kay,  J. 

S.  43  of  the  Conveyancing  and  Law  of  Pro- 
perty Act,  1881,  empowering  trustees  to  apply 
towards  the  maintenance  of  an  infant  the  income 
of  property  held  in  trust  for  him  contingently  on 
his  attaining  the  age  of  twenty-one  years,  does 
not  authorise  the  allowance  of  maintenance 
where,  apart  from  the  act,  the  infant,  on  attain- 
ing twenty-one  would  only  be  entitled  to  the 
legacy  without  interest.  Dickson,  In  re,  Hill  v. 
Grant,  29  Ch.  D.  331 ;  54  L.  J.,  Ch.  610 ;  52  L.  T. 
707;  33  W.  R.611—  C.A. 

"  Contrary  Intention."]— A  testator  gave 

a  fund  to  trustees,  on  trust  for  all  the  children 
of  A.  equally,  who  being  sons  should  attain 
twenty-one,  or  being  daughters  should  attain 
twenty-one,  or  marry,  with  benefit  of  survivor- 
ship amongBt  them,  and  he  directed  his  trustees 
to  accumulate  the  income  of  the  shares  of  the 
children,  and  to  pay  the  same  to  them  as  and 
when  their  presumptive  shares  should  become 


payable  under  the  previous  trust:— Held,  that 
the  will  did  not  express  a  "  contrary  intention" 
within  the  meaning  of  s.  43  of  the  Conveyancing 
Act,  1881,  and  that,  the  children  being  infante 
and  unmarried,  the  trustees  might  at  their  dis- 
cretion apply  the  income  of  the  trust  fund  in  or 
towards  the  maintenance  and  education  of  the 
infants.  Thatcher's  Trusts,  In  re,  26  Ch.  D.  426 ; 
63  L.  J.,  Ch.  1050 ;  32  W.  R.  679— Pearson,  J. 

Dividends — Payment  to  Father.]— Accrued 
and  future  dividends  of  the  fortune  of  three 
minora  were  ordered  to  be  paid  to  their  father, 
he  undertaking  to  apply  the  dividends  to  their 
maintenance,  clothing,  and  education ;  and  the 
court  being  satisfied  that  under  the  special  cir- 
cumstances of  the  case  such  order  would  be  for 
the  benefit  of  the  minors.  Birch's  Trustees,  2» 
re,  15  L.  B.,  Ir.  380— M.  B. 

Honey  invested  in  Name  of  Infant— Ac- 


cumulations. ] —On  the  7th  of  June,  1880,  A IL, 
an  infant,  became  absolutely  entitled  under  the 
will  of  S.  H.  to  a  sum  of  consols  standing  in  the 
name  of  J.  IL,  one  of  the  trustees  of  the  will, 
deceased,  and  A.  K.'s  own  name,  being  part  of  a 
trust  fund  under  that  will.  This  was  a  petition 
to  obtain  a  vesting  or  other  order  for  the  purpose 
of  dealing  with  the  dividends  on  the  consols. 
No  guardian  of  A.  K.  was  appointed  by  the 
will  or  otherwise.  A.  K.  was  born  on  the  6th 
March,  1879.  On  the  21st  April,  1888,  at  the 
suggestion  of  the  judge,  it  was  ordered  that  the 
proper  officer  of  the  Bank  of  England  do,  during 
the  minority  of  the  said  infant  petitioner  A  K, 
invest  the  dividends  now  due  and  hereafter 
to  accrue  due  on  the  consols.  On  the  10th  Maj, 
1888,  the  bank  wrote  refusing  to  act  on  the 
order.  The  court  now  made  an  order  directing 
the  dividends  to  be  paid  to  the  present  trustee* 
of  the  will  of  S.  H.,  for  the  benefit  of  the 
infant.  Kemp,  In  re,  59  L.  T.  209  ;  36  W.  B. 
729— Kay,  J. 

Power  of  Trustee*— "Unlimited  Duration.]- 
A  testator  by  his  will,  after  giving  certain 
annuities  to  his  daughters  and  a  granddaughter, 
directed  his  trustees  to  accumulate  the  surplus 
income  after  providing  for  these  annuities  until 
the  death  of  all  his  daughters,  when  the  period 
of  distribution  was  fixed  ;  and,  after  other  pro- 
visions, the  will  contained  a  power  of  main- 
tenance which  was  unlimited  in  duration  of 
time,  and  expressed  to  be  exercisable  during  the 
lifetime  of  the  daughters.  Superadded  to  the 
power  of  maintenance  was  another  trust  for 
accumulation  of  surplus  income  not  applied  in 
maintenance.  Upon  an  application  to  the  court 
by  the  trustees  for  directions  whether  the  in- 
come of  the  testator's  estate  was  applicable  for 
the  maintenance  and  education  of  the  testator*? 
grandchildren  : — Held,  that  the  power  of  main- 
tenance was  unlimited  ;  that  there  was  not  suffi- 
cient evidence  upon  the  face  of  the  will  of  an 
intention  to  cut  down  the  terms  of  the  power  of 
maintenance,  which  operated  as  well  during  the 
continuance  as  after  the  expiration  of  the  tro* 
for  accumulation ;  and  that  the  grandchildren 
were  therefore  entitled  to  have  the  income  of 
the  testator's  estate  applied  towards  their  main- 
tenance and  education.  Smced,  In  re,  Archer 
v.  Prall,  54  L.  T.  929— Chitty,  J. 

Discretion  of  Trustees— Ability  of  Father  » 
Maintain.]— J.  B.  M.  having  absolute  power  to 


973 


INFANT— Maintenance. 


974 


dispose  of  property,  devised  it  to  her  husband 
J.  if.  for  life,  in  trust  that  he  should  '•  apply  the 
nine,  or  as  much  thereof  as  he  should  from  time 
to  time  think  proper,  for  or  towards  the  main- 
tenance and  education,  or  otherwise,  for  the 
benefit  of  my  son  D.  M.,  and  shall  and  do  invest 
the  unapplied  income,  Jtc.,  in  such  stocks,  &c.,  as 
the  said  J.  M.  in  his  absolute  and  uncontrolled 
discretion  shall  think  fit,  with  power  to  him  at 
any  time,  and  from  time  to  time,  to  use  and 
apply  all  or  any  part  of  such  accumulated  in- 
come for  the  benefit  of  my  said  son,  or  to  pay 
the  same  over  to  him  as  the  said  J.  M.  may 
from  time  to  time  think  proper : "  and  after  the 
death  of  J.  M.,  she  devised  the  property,  and  all 
accumulations  which  should  not  have  been  ap- 
plied or  paid  over  in  trust  for  his  son  D.  M. 
absolutely  ;  and  if  he  should  die  in  the  lifetime 
of  his  father  J.  M.,  to  J.  M.  absolutely.  After 
the  testatrix's  death,  J.  M.  received  the  rents 
and  maintained  his  son  in  a  manner  suitable  to 
his  rank  until  his  own  death.  Independently  of 
the  testatrix's  property  he  was  during  his  life  of 
ability  to  maintain  his  son,  J.  M.  having  died, 
his  administratrix  in  an  action  brought  by  D.  M. 
claimed  credit  for  a  considerable  sum  for  the 
maintenance  and  education,  Sec.,  of  the  minor 
by  J.  M.  during  several  years.  It  was  sought, 
on  behalf  of  the  plaintiff,  to  have  this  credit  dis- 
allowed on  the  ground  that  the  father,  having 
been  of  sufficient  ability  to  maintain  and  educate 
his  child,  was  not  entitled  to  apply  any  of  the 
trust  funds  for  that  purpose  : — Held,  that  J.  M. 
was  under  the  testatrix*  will  entitled  (notwith- 
standing his  own  ability)  to  apply  so  much  of 
the  income  of  the  trust  funds  as  he  should  from 
time  to  time  think  proper  for  and  towards  the 
maintenance  and  education,  or  otherwise  for 
the  benefit,  of  his  son  D.  M.  Malcomwn  v.  Mai- 
eomton,  17  L.  R.,  Ir.  69— C.  A. 

Jurisdiction    of  Court  to  Control.] — A 

female  infant  was  entitled  contingently  on  her 
attaining  twenty-one  or  marrying,  to  a  fund  of 
which  her  deceased  mother  had  been  tenant  for 
life.  The  trustees  had  power  to  "  apply  all  or 
any  part"  of  the  income  (about  638J.  a  year) 
for  her  maintenance  and  education.  On  a  sum- 
mons in  the  matter  of  the  infant,  Bacon,  V.-G, 
held  that  he  had  jurisdiction  to  control  the  dis- 
cretion of  the  trustees  as  to  the  quantum  to  be 
allowed,  and  made  an  order  on  them  to  pay 
400f .  a  year  to  the  father  for  her  maintenance 
and  education.  The  trustees  appealed,  and  in 
answer  to  an  inquiry  by  the  court,  stated  their 
intention  to  allow  250/.  to  the  father  for  her 
maintenance  and  education  : — Held,  that  the 
older  of  the  Vice-chancellor  was  irregular,  and 
nust  be  discharged,  the  court  having  no  juris- 
diction on  a  summons  in  the  matter  of  an  infant 
to  make  any  order  for  payment  by  trustees  or 
other  persons.  Lofthouu,  In  re,  29  Ch.  D.  921 ; 
54  L.  J.,  Ch.  1087  ;  53  L.  T.  174  ;  33  W.  R.  668 
-C.A. 

Whether  the  court  could  control  the  discretion 
of  the  trustees  as  to  the  amount  to  be  allowed 
far  maintenance  and  education,  so  long  as  such 
discretion  was  honestly  exercised,  quaere.    lb. 

Child  assigning  Interest.]— A  testator 

Erected  his  trustees,  after  the  death  of  his  wife, 
to  apply  the  income  of  his  estate  "in  and 
towards  the  maintenance,  education,  and  ad- 
vancement of  my  children  in  such  manner  as 


they  shall  deem  most  expedient  until  the 
youngest  of  my  said  children  attains  the  age  of 
twenty-one  years,"  and  on  the  happening  of 
that  event  he  directed  them  to  divide  his  estate 
equally  among  all  his  children  then  living. 
The  testator  left  four  children,  two  of  whom  at 
the  death  of  the  widow  in  1884  were  of  age, 
and  the  youngest  was  in  his  seventh  year. 
After  the  decease  of  the  widow  the  trustees  paid 
each  of  the  adult  children  one-fourth  of  the  in- 
come, and  applied  the  other  two-fourths  for  the 
benefit  of  the  minors  equally  till  1886,  when 
J.  S.  C.  the  eldest  son,  made  an  absolute  assign- 
ment for  value  of  all  his  interest  under  the  tes- 
tator's will  to  H.  The  trustees  declining  to  pay 
one-fourth  of  the  income  to  H.  he  took  out  a 
summons  to  have  the  construction  of  the  will 
determined  : — Held,  that  no  child  of  the  testator 
was  entitled,  prior  to  the  attainment  of  twenty- 
one  by  the  youngest  of  the  testator's  children, 
to  the  payment  of  any  part  of  the  income,  and 
that  the  trustees  were  entitled  to  apply  the  in- 
come for  the  maintenance,  education,  or  advance- 
ment of  the  children,  including  J.  8.  C,  in  their 
absolute  discretion ;  that  H.  was  entitled  to  no 
interest  in  the  income  except  such  moneys  or 
property,  if  any,  as  might  be  paid  or  delivered 
or  appropriated  for  payment  or  delivery  by  the 
trustees  to  J.  8.  C,  and  that  the  trustees  could 
not  pay  or  deliver  to  J.  8.  C.  money  or  goods 
forming  part  of  the  income  or  purchased  out  of 
the  income,  for  that  such  moneys  and  goods  so 
paid  or  delivered,  or  appropriated  to  be  paid  or 
delivered,  would  pass  by  the  assignment.  Cole- 
man, In  re,  Henry  v.  Strong,  39  Ch.  D.  443  ;  58 
L.  J.,  Ch.  226  ;  60  L.  T.  127— C.  A. 

Charge  on  Infant's  Beal  Estate.]— Two  in- 
fants were  entitled  to  successive  estates  tail  in 
remainder  after  the  life  estate  of  their  father, 
which  life  estate  had  been  sold  under  his  bank- 
ruptcy. There  being  no  income  applicable  to 
the  maintenance  of  the  infants,  an  application 
was  made  on  their  behalf  that  a  yearly  sum 
might  be  allowed  for  that  purpose,  and  bor- 
rowed on  the  security  of  a  mortgage  or  charge 
on  the  real  estate  to  which  they  were  entitled  as 
above.  The  amount  for  which  the  charge  was 
to  be  given  included  the  premiums  on  the  in- 
surance requisite  for  the  protection  of  the 
lender :— Held,  that  an  order  sanctioning  the 
scheme  could  not  be  made,  and  that  the  prin- 
ciple of  Howarth,  In  re  (8  L.  R.,  Ch.  415)  would 
not  support  it,  for  that,  although  judgment 
might  be  recovered  against  the  infants  for 
necessaries  supplied  to  them,  it  could  not  be 
recovered  for  premiums  on  the  policies,  and, 
moreover,  judgment  could  not  be  recovered 
against  one  infant  for  necessaries  supplied  to  the 
other,  and  a  judgment  would  not  charge  the 
estates  of  the  infants,  inasmuch  as  those  estates 
were  so  circumstanced  that  they  could  not  be 
delivered  in  execution.  Hamilton,  In  re,  31  Ch. 
D.  291 ;  55  L.  J.,  Ch.  282 ;  53  L.  T.  840 ;  34 
W.  R.  203— C.  A. 

Five  infants  were  entitled  to  successive  estates 
tail  in  real  estate  after  the  death  of  their  grand- 
mother, who  was  tenant  for  life.  There  being 
no  income  applicable  for  the  maintenance  of  the 
infants,  an  application  was  made  in  an  action 
on  their  behalf,  that  a  sum  of  money  for  past 
maintenance,  and  certain  annual  sums  for  future 
maintenance,  should  be  raised  on  the  security 
of  a  charge  on  the  estate ;  the  tenant  for  life 


975 


INFANT— Quardiatu—Ward  of  Court. 


976 


Deing  willing  to  release  ber  life  estate  in  a  por- 
tion of  the  property  so  as  to  give  the  first  tenant 
in  tail  an  estate  in  possession,  and  to  join  in  the 
necessary  deeds  : — Held,  that  such  an  order  could 
not  be  made.  Howarth,  In  re  (8  L.  R.  Ch.  415) 
distinguished  and  doubted.  Cadman  v.  Cadman, 
33  Ch.  D.  397  ;  55  L.  J.,  Oh.  833  ;  55  L.  T.  569  ; 
35  W.  B.  1— C.  A. 

One  Guardian  allowed  to  receive  Honey — 
Voucher  of  Items  of  Expenditure.] — H.  and  C. 
were  trustees  and  executors  of  a  will,  and 
guardians  of  the  testator's  daughters.  The 
daughters  during  their  infancy  were  maintained 
by  C.,  and  H.  allowed  him  to  receive  the  income 
for  that  purpose.  After  they  attained  majority 
judgment  was  given  for  administration  of  the 
testator's  estate,  in  which  the  usual  accounts  of 
the  personal  estate  were  directed,  and  an  inquiry 
how  and  by  whom  each  of  the  daughters  was 
maintained  during  infancy,  and  what  was  proper 
to  be  allowed  and  to  whom  out  of  the  income 
of  her  share  for  her  maintenance  and  education. 
A  dispute  having  arisen  in  taking  the  accounts 
and  inquiry,  H.  applied  for  a  declaration  that 
the  receipts  by  C.  of  the  income  of  the  shares  of 
the  daughters  for  maintenance  were  a  good  dis- 
charge to  H.,  and  that  H.  was  not  to  be  called 
upon  to  produce  vouchers  in  respect  of  the  par- 
ticular manner  in  which  the  income  was  applied. 
Kay,  J.,  made  an  order  expressing  the  opinion 
of  the  court  that  the  accounts  of  the  trustees 
should  be  taken  as  directed  by  the  judgment  as 
between  guardian  and  ward,  and  ordering  H.  to 
pay  the  costs  of  the  application  : — Held,  on  ap- 
peal, that  H.,  as  trustee,  was  not  discharged  by 
mere  evidence  of  payment  of  the  income  to  C, 
his  co-guardian,  but  that  under  the  inquiry,  H. 
was  not  bound  to  vouch  the  items  of  expendi- 
ture ;  and  if  it  was  shown  that  C.  had  properly 
maintained  and  educated  the  children,  the  sum 
proper  for  that  purpose  would  be  allowed  against 
the  balance  found  due  on  the  account,  without 
vouching  the  details  of  the  application.  Beans, 
In  re,  Welch  v.  ChanneU,  26  Ch.  D.  58 ;  53 
L.  J.,  Ch.  709 ;  51  L.  T.  176 ;  32  W.  B.  736— 
C.  A. 

Jurisdiction  of  iCourt  to  Order,  out  of  Accu- 
mulations.]—i&<?  post,  Will,  V.  k.  v. 


V.  GUARDIANS. 

Appointment  of— Jurisdiction— British  Sub- 
ject born  Abroad.] — If  an  infant  be  born  abroad 
whose  paternal  grandfather  was  a  natural-born 
British  subject,  the  court  has  jurisdiction  to 
appoint  a  guardian  of  such  infant,  although  the 
infant  is  resident  abroad,  and  has  no  property  in 
this  country.  A  Frenchwoman,  who  was  the 
mother  of  such  an  infant,  and  entitled  by  the 
law  of  France  to  the  status  of  natural  guardian 
of  the  infant,  though  not  a  person  who  would 
have  been  appointed  guardian  if  she  and  the 
infant  had  been  domiciled  in  England,  had 
brought  proceedings  in  the  French  courts  for 
the  appointment  of  guardians,  which  proceed- 
ings had  been  directed  to  stand  over  until  it 
should  be  ascertained  what  course  the  English 
courts  would  adopt  .-—Held,  by  Kay,  J. ,  that  this 
was  a  case  in  which  the  English  court  should 
exercise  its  jurisdiction ;  and  a  guardian  of  the 
infant  was  appointed  accordingly: — Held  by  the 
Court  of  Appeal,  that  under  the  circumstances 


the  decision  of  the  court  below  was  right  WU- 
loughby,  In  re,  30  Ch.  D.  324  ;  54  L.  J.,  Ch.  1122 ; 
53  L.  T.  926  ;  83  W.  B.  860— C.  A. 

Statutory  Guardian  resident  out  of  the 

Jurisdiction.] — Where  the  mother  of  infante, 
whose  father  died  intestate,  was  permanently 
resident  in  England,  the  court,  with  ber  consent 
made  an  order,  under  the  49  &  50  Vict  c  27, 
s.  6,  substituting  a  paternal  uncle  of  the  infants 
as  their  guardian.  Form  of  procedure  in  such 
cases.  Lemon*,  In  re,  19  L.  B,,  Ir.  675— L.  C. 
See  also  Cdllaghan,  In  re,  infra. 

Religion   of    Children  —  Indication  of 


Father's  Intention.] — W.,  a  Roman   Catholic, 
shortly  before  his  marriage  in  1876,  with  Miss  D., 
a  Protestant,  wrote  to  the  priest  of  his  parish, 
applying  for  a  dispensation,  and  promising  to 
have  the  children  (if  any)  brought  up  as  Roman 
Catholics.    About  the  same  time  he  also  wrote 
three  letters  to  Miss  D.'a  mother,  stating  that  he 
had  no  objection  to  the  children  being  baptixed 
by  a  Protestant  clergyman,  but  that  tircum- 
stances   might  arise   compelling  him  to  have 
them  baptized  Roman  Catholics,  which,  how- 
ever, would  in  no  way  bind  him  to  have  them 
brought  up  in  that  faith  ;  that  the  matter  pre- 
sented no  difficulty  except  baptism ;  that  the 
future  did  not  depend  on  any  ceremony,  but  on 
his  own  will  or  honour  ;  and  that  as  to  guardian- 
ship, on  no  consideration  would  he  "  permit  any- 
one to  step  between  [his  intended  wife]  and  her 
children,"  but  "  would  by  will  leave  her  sole  and 
undivided  authority."    The  dispensation  for  the 
marriage  was  obtained  from  the  Roman  Catholic 
bishop,  but  W.  did  not  avail  himself  of  it,  and 
his  marriage  with  Miss  D.  was  celebrated  by  a 
Protestant  clergyman  only.    A  child,  C,  was 
born  in  1878,  which  was,  with  W.'s  sanction, 
baptized  as  a  Roman  Catholic    W.  having  died 
intestate  in  1879,  his  widow  (C/s  mother),  in  1883, 

E resented  a  petition  as  next  friend,  praying  to 
ave  C.  made  a  ward  of  court  and  herself  ap- 
pointed guardian  : — Held,  that  upon  the  whole, 
the  facta  afforded  a  sufficient  indication  of  W.'s 
intention  that  his  children  should,  after  his 
death,  be  committed  to  the  guardianship  of  their 
mother,  and  an  order  simply  to  that  effect  was 
made  with  respect  to  C.  Walsh,  In  re,  13  L.  B, 
Ir.  269 — L.  C.  See  also  Scanlan,  In  re,  pott, 
col.  980. 

Administration  with  Will  annexed  grants* 
to.]— See  Will  (Letters  of  Adjoxistba- 
tion). 

Guardian  ad  litem.]— See  infra,  IX 


VL  WABD  OF  COUBT. 

Who  is— Payment  into  Court— Alien  Iafrnt 
Resident  Abroad.] — A  legacy  had  been  paid  into 
court  to  which,  on  the  death  of  the  tenant  for  life, 
two  female  infants,  who  were  French  subjects  by 
birth,  and  resident  in  France,  became  absolutely 
entitled.  They  were  both  married,  and,  by  the 
French  law,  under  the  settlements  made  on  their 
respective  marriages,  their  husbands  were  abso- 
lutely entitled  to  receive  their  shares  of  the  fond. 
One  of  the  infants  had  since  attained  twenty- 
one  : — Held,  that  the  infants,  not  being  subjects 
of,  or  domiciled,  or  resident  in  England,  the  court 
had  a  discretion  as  to  whether  or  not  they  shouki 


977 


INFANT— Custody. 


978 


he  treated  as  wards  of  court,  and  that  the  money 
might  therefore  be  paid  out  to  the  husbands. 
Bmm  v.  Collins,  25  Ch.  D.  56 ;  53  L.  J.,  Ch. 
368 ;  49  L.  T.  329— Kay,  J. 

Whether,  in  any  case,  the  mere  fact  that  there 
ii  a  fond  in  court  to  a  share  in  which  an  infant 
a  entitled,  makes  the  infant  a  ward  of  court, 
quae.  De  Pereda  v.  De  Mancha  (19  Ch.  D.  451) 
doubted  on  this  point    lb. 

Zem  to  take  Ward  out  of  the  Jurisdiction.] — 
A  resident  in  Jamaica  died  leaving  two  children, 
who  were  born  there,  and  resided  there  with 
their  mother  till  1875,  when  the  elder,  a  daughter, 
wis  sent  to  England  to  be  educated.  The  mother 
came  to  England  in  1876  to  place  her  son  at 
school,  and  returned  to  Jamaica  in  1878.  In 
1880  she  came  to  England  to  see  her  children 
and  had  remained  there,  the  daughter,  upon 
leaving  school,  living  with  her.  With  the  above 
exceptions,  the  mother  had  always  lived  in 
Jamaica,  and  regarded  it  as  her  home.  She  now 
wished  to  return  thither  permanently,  and  to 
take  with  her  the  daughter  aged  twenty  years 
and  three  months,  the  son,  who  was  apprenticed 
to  an  engineer,  remaining  in  England.  The 
children  were  wards  of  court,  and  the  mother 
had  been  appointed  by  the  court  sole  guardian  : 
—Held,  that  leave  may  be  given  to  take  a  ward 
out  of  the  jurisdiction  without  a  case  of  necessity 
being  shown,  the  court  having  only  to  be  satis- 
fied that  the  step  is  for  the  benefit  of  the  ward, 
and  that  there  is  sufficient  security  that  future 
orierewill  be  obeyed.  Leave  was  accordingly 
given  upon  a  relative  resident  in  England  being 
appointed  guardian  along  with  the  mother. 
Otllaghan,  In  re,  Elliott  v.  Lambert,  28  Ch.  D. 
186;  54  L.  J.,  Ch.  292 ;  52  L.  T.  7  ;  33  W.  R. 
157— C.  A. 


VII.  CUSTODY. 

Age  of  Mnrtmre — Lunatic  Mother— Removal 

Mar.] — The  court  will,  in  the  exercise  of  its 
discretion,  and  under  exceptional  circumstances, 
soch  as  the  dangerous  lunacy  and  improbable 
recovery  of  the  mother,  order  the  removal  of 
a  child  within  the  age  of  nurture  from  her 
care,  notwithstanding  the  rule  established  by 
Rq.  v.  Birmingham  (6  Q.  B.  210),  that 
a  child  within  the  age  of  nurture  cannot  be 
•eparated  from  its  mother  by  order  of  removal 
wen  with  her  consent.  Reg.  v.  Barnet  Union, 
57  L.  J.,  M.  0.  39  ;  58  L.  T.  947 ;  52  J.  P.  611 
-D. 

light  of  Mother— Breach  of  Marital  Duty 
•7  father — Tender  Years.]  —  In  determining 
whether  the  custody  of  an  infant  child  ought  to 
he  given  to  or  retained  by  the  mother,  the  court 
will  take  into  consideration  three  matters — the 
paternal  right,  the  marital  duty,  and  the  interest 
of  the  child.  For  this  purpose  the  marital  duty 
includes,  not  only  the  duty  which  the  husband 
and  wife  owe  to  each  other,  but  the  responsibility 
of  each  of  them  towards  their  children  so  to  live 
fat  the  children  shall  have  the  benefit  of  the 
joint  care  and  affection  of  both  father  and 
Bother.  In  a  case  where  a  father  had  committed 
a  breach  of  the  marital  duty  as  thus  defined  : — 
Held,  for  this  among  other  reasons,  that  the 
Bother,  in  whose  custody  two  children  of  the 
carriage  of  tender  years  were,  ought  to  retain 
the  custody  until  further  order.    Elderton,  In 


re,  25  Ch.  D.  220 ;  53  L.  J.,  Ch.  258  ;  60  L.  T. 
26  ;  32  W.  R.  227  ;  48  J.  P.  841— Pearson,  J. 

In  the  exercise  of  its  discretion  under  36  &  37 
Vict.  c.  12,  s.  1,  and  s.  25,  sub-s.  10,  of  the  Judi- 
cature Act,  1873  (36  &  37  Vict  c.  66),  the  court 
will  look  at  all  the  surrounding  circumstances 
before  they  will  accede  to  the  application  of  the 
father  of  a  female  child  of  tender  years  to  remove 
her  from  the  custody  of  the  mother  and  other 
relations  whose  conduct  with  regard  to  the  child 
is  unimpeached,  and  place  her  under  his  control. 
A  mariner  who  had  no  fixed  home,  and  who  had 
already  married  a  woman  who  left  him  and  went 
to  America  more  than  seven  years  before  and  (as 
he  said)  died  there,  went  through  the  ceremony 
of  marriage  with  another  woman  at  a  registry- 
office  at  Portsmouth.  Shortly  after  her  mar- 
riage, the  second  wife,  being  informed  by  a 
stranger  that  she  had  received  a  letter  from  the 
first  wife,  after  the  ceremony  at  the  registry- 
office,  quitted  her  supposed  husband,  and  went 
to  reside  with  her  parents  at  Southampton,  where 
she  gave  birth  to  a  female  child.  She  afterwards 
took  proceedings  against  her  husband  for  bigamy; 
but,  for  want  of  proof  that  the  first  wife  was 
living  at  the  time  of  the  second  marriage,  these 
became  abortive.  The  child  having  reached  the 
age  of  nine,  the  father  (without  showing  any 
efforts  to  ascertain  whether  his  first  wife  was 
living  or  not)  applied  to  a  judge  at  chambers  for 
a  habeas  corpus  to  obtain  its  custody.  The  judge 
refused  the  application.  The  father  appealed. 
The  court, — not  being  satisfied  that  the  second 
was  a  valid  marriage,  or  that  the  father  was  in 
a  position  properly  to  maintain  and  educate  the 
child : — Held,  that  the  judge  had  wisely  exer- 
cised his  discretion,  and  dismissed  the  appeal, 
and  also  that  the  failure  of  the  prosecution  for 
bigamy  was  not  entitled  to  any  weight  upon  a 
motion  of  this  kind.  Brown,  In  re,  or  Howe,  In 
re,  Bowe  v.  Smith,  13  Q.  B.  D.  614  ;  51  L.  T. 
798  ;  33  W.  R.  79— D. 

Infant  above  Sixteen — Free  Aeoess  to  Mother 

restricted— Jurisdiction.] — A  father  has  a  legal 
right  to  control  and  direct  the  education  and 
bringing  up  of  his  children  until  they  attain  the 
age  of  twenty-one  years,  even  although  they 
are  wards  of  court,  and  the  court  will  not  inter- 
fere with  him  in  the  exercise  of  his  paternal 
authority,  except  (1)  where  by  his  gross  moral 
turpitude  he  forfeits  his  rights,  or  (2)  where  he 
has  by  his  conduct  abdicated  his  paternal 
authority,  or  (3)  where  he  seeks  to  remove  his 
children,  being  wards  of  court,  out  of  the  juris- 
diction without  the  consent  of  the  court.  Agar' 
Ellit,  In  re,  Agar- Ellis  v.  Laseelle*,  24  Ch.  D. 
317 ;  63  L.  J.,  Ch.  10  ;  50  L.  T.  161 ;  82  W.  R. 
1— C.  A. 

A  father  put  restrictions  on  the  intercourse 
between  his  daughter,  in  her  seventeenth  year, 
who  was  a  ward  of  court,  and  her  mother,  on  the 
plea  that  he  believed  the  mother  would  alienate 
the  daughter's  affections  from  him.  The  court 
refused  to  interfere.    lb. 

Mixed  Marriage  —  Christian  and  Mahom- 
medan.] — S.,  an  Englishwoman,  had  married, 
according  to  the  Mahommedan  ritual,  N.,  a 
Hindoo  Mahommedan,  he  being  already  married. 
The  children  of  this  marriage  had  been  recog- 
nized by  N.  as  his  children  and  his  heirs 
according  to  Mahommedan  law.  By  an  agree- 
ment   between    S.  and  N,  the  children  were 


979 


INFANT — Religious  Education. 


980 


brought  up  as  Mahommedans,  and  8.  and  N. 
having  separated,  they  went  with  their  father  to 
India,  and  remained  there  until  the  father's 
death,  four  years  afterwards.  By  his  will,  N. 
appointed  certain  persons  guardians  of  the 
children.  S.  now  moved  that  an  order  might  be 
made  giving  her  the  custody  of  her  children,  as 
she  admitted  that  her  union  with  N.  was  not  a 
marriage,  and  therefore  contended  that,  as  her 
children  were  illegitimate,  she  had  the  right  to 
the  custody  of  them  : — Held,  that  S.  had  no 
absolute  right  to  the  custody,  and  the  court 
would  consider  what  was  best  for  the  interests 
of  the  children,  and  having  regard  to  the  nature 
of  their  birth,  the  religion  in  which  they  had 
been  educated,  and  the  mode  of  life  which  had 
been  adopted  for  tbem,  it  was  best  for  them  to 
remain  in  the  custody  of  the  guardians  whom 
the  father  had  appointed.  Ullee,  In  re,  64  L.  T. 
286— C.  A. 

Befual  of  Wife  to  Livo  with  Husband.]— A 
wife  left  her  husband's  home  without  any  reason- 
able cause,  taking  with  her  their  only  child. 
The  court,  on  the  petition  of  the  husband,  ordered 
the  wife  forthwith  to  deliver  the  child  into  the 
hands  of  the  petitioner,  with  liberty  to  either 
party  to  apply  in  chambers  as  to  access  to  the 
child.  Constable  v.  Constable,  34  W.  R.  649— 
North,  J. 

Separation  Deed  —  Religious  Education — 
Authority— Infants1  Custody  Aot,  1873.]— The 
words  "  custody  or  control,"  in  s.  2  of  the  Infants1 
Custody  Act,  1873,  comprise  all  the  rights  which 
a  father  has  over  his  children,  including  that  of 
directing  their  religious  education.  A  motion 
was  made  by  the  mother  of  a  female  infant  eight 
years  of  age,  for  the  exclusive  control  of  the 
education  (religious  and  otherwise)  of  the  infant 
and  that  the  father'9  access  might  be  limited  to 
thirteen  weeks  of  the  year  during  the  child's 
holidays.  The  father,  who  was  a  Roman  Catholic, 
was  married  to  the  mother,  a  Protestant,  in  1878. 
In  July,  1881,  a  separation  deed  was  executed, 
containing  a  declaration  that  the  wife  should 
have  the  absolute  custody  and  control  of  the 
infant  until  the  deed  should  be  mutually  put  an 
end  to  and  revoked  by  the  parties,  without  any 
interference  of  or  by  the  husband.  The  father 
had  not  seen  the  child  for  three  years  and  a  half, 
and  no  reason  for  his  not  doing  so  was  alleged. 
An  order  had  been  made  in  an  action  to  admin- 
ister the  trusts  of  the  separation  deed,  the  mother 
undertaking  not  to  bring  up  the  child  in  any 
manner  at  variance  with  the  Roman  Catholic 
faith.  The  father  was  without  means  to  main- 
tain the  child  : — Held,  that  it  was  for  the  benefit 
of  the  infant  to  give  effect  to  the  agreement  in 
the  separation  deed;  and  that  it  should  be  enforced 
accordingly.  Condon  v.  Vollum,  67  L.  T.  154 — 
Chitty,  J. 

guardianship  of  Infants  Aot— Misconduct  of 
Father — No  limit  as  to  Age.  ] — Where  a  mother 
applied  by  petition  to  the  court  for  the  custody 
of  her  boy,  aged  ten  years,  on  the  ground  of  the 
misconduct  of  the  father: — Held,  that  under 
s.  6  of  the  Guardianship  of  Infante  Act,  1886  (49 
&  50  Vict.  c.  27),  the  court  had  jurisdiction  to 
make  such  order  as  it  might  think  fit  regarding 
the  custody  of  such  infant,  and  the  right  of  access 
thereto  of  either  parent,  having  regard  to  the 
welfare  of  the  infant,  and  to  the  conduct  of  the 


parents,  and  to  the  wishes  as  well  of  the  mother 
as  of  the  father.  The  court  has  jurisdiction  to 
order  the  delivery  of  the  infant  to  the  custody  of 
its  mother,  without  fixing  any  limit  of  age. 
Witten,  In  re,  57  L.  T.  336— Kay,  J. 

In  a  suit  by  the  wife  for  divorce  on  the  ground 
of  adultery  coupled  with  cruelty,  which  was  of 
an  aggravated  character,  the  court,  after  pro- 
nouncing a  decree  nisi,  made  an  order  under  b.  7 
of  the  Guardianship  of  Infants  Act,  1886,  declaring 
the  respondent,  who  did  not  appear  to  oppose  the 
application,  to  be  an  unfit  person  to  have  the 
custody  of  the  children.  Skinner  v.  Skinntr,  IS 
P.  D.  90  ;  57  L.  J.,  P.  104  ;  58  L.  T.  923 ;  86  W. 
R.  912  ;  52  J.  P.  406— Hannen,  P. 

Under  Separation  Deed.] — See  ante,  ooL 913. 

After  Decree  in  Divorce  Proeeedingi.]—3* 
ante,  cols.  903,  904. 


VIII.  RELIGIOUS    EDUCATION. 

Guardianship  of  Infants  Aot,  1868.] -The 
Guardianship  of  Infants  Act,  1886,  does  not 
affect  the  right  of  the  father  to  determine  the 
religion  in  which  his  children  shall  be  brought 
up  after  his  death.  Seanlan,  In  re,  40  Ch.  D. 
200  ;  57  L.  J.,  Ch.  718 ;  59  L.  T.  599  ;  36  W.  B. 
842— Stirling,  J. 


Abandonment  of  Bight  by 
—The  children  of  a  Protestant  father  and  Roman 
Catholic  mother,  aged  respectively  ten,  nine,  and 
three  years,  were  with  the  assent  of  the  father 
educated  as  Roman  Catholics  for  three  yens, 
and  his  two  elder  children  were  admitted  to 
communion  according  to  the  rites  of  that  faith. 
At  the  end  of  that  period,  the  father,  being  then 
dependent  for  support  upon  the  Protestant  clergy 
of  his  parish,  caused  his  children  to  be  educated 
as  Protestants,  and  expressed  a  wish  that  they 
should  thenceforth  be  brought  up  in  that  religion. 
He  died  in  the  following  year  in  the  lifetime  of 
the  mother,  without  appointing  a  guardian  :— 
Held,  that  the  father  had  not  by  his  conduct 
abandoned  the  right  to  have  his  children  brought 
up  in  his  own  religion ;  and,  under  the  circum- 
stances of  the  case,  that  a  member  of  the  Church 
of  England  ought  to  be  appointed  a  guardian  to 
act  jointly  with  the  mother.  lb.  See  alts 
Walsh,  In  re,  ante,  col.  976. 

Mother  out  of  Jurisdiction.  1— Infants  in- 
terested in  real  estate  in  England,  whose  father 
was  dead,  were  living  in  charge  of  their  mother, 
who  was  resident  out  of  their  jurisdiction,  and 
was  one  of  their  testamentary  guardians.  At  the 
instance  of  their  other  two  guardians  an  order 
was  made  declaring  in  what  faith  they  ought  to 
be  educated.  Montagu,  In  re,  Montag*  ▼• 
Festing,  28  Ch.  D.  82 ;  54  L.  J.,  Ch.  397 ;  33 
W.  R.  322— Pearson,  J. 

Effect  of  Separation  Deed.]— See  Conio*  t. 
Vollum,  supra. 


IX.  ACTIONS   AND    PROCEEDINGS 
BY    AND    AGAINST. 

Guardian    ad   litem.]  —  See  next  case  and 
Lotondes,  In  re,  post,  col  983. 


961 


INFANT — Actions  and  Proceedings  by  and  against 


982 


Itzt  Friend— Harried  Woman.] — S.  1,  sub-B. 
2,  of  the  Married  Women's  Property  Act,  1882, 
does  not  abolish  the  rule  that  a  married  woman 
is  incapable  of  filling  the  office  of  next  friend,  or 
puudian  ad  litem.  Somerset  (Duke),  In  re, 
Tkynnc  v.  St.  Maur,  34  Ch.  D.  465  ;  56  L.  J., 
Ch,  733;  56  L.  T.  146;  35  W.  R.  273— 
Chitty,  J. 

Removal  of] — Doubts  haying  arisen  as 

to  the  proper  custody  of  an  infant,  a  suit  was 
commenced  in  her  name  for  the  administration 
of  her  father's  estate.  A  next  friend  was 
appointed,  who  was  a  friend  of  the  defendants, 
the  executors  and  trustees  of  the  will,  and 
guardians  of  the  infant,  and  accepted  the  office 
at  their  request,  and  on  an  indemnity  from  their 
father.  The  solicitors  on  the  record  for  the 
plaintiff  were  the  solicitors  of  the  executors. 
On  an  application  in  the  name  of  the  infant  by 
3L,  the  husband  of  her  paternal  aunt,  as  next 
friend  pro  hftc  vice,  to  remove  the  next  friend 
and  substitute  M. : — Held,  that  although  nothing 
was  alleged  against  the  character,  circumstances, 
or  conduct  of  the  next  friend,  his  connexion  with 
the  executors  made  him  an  improper  person  to 
act  as  next  friend,  and  that  ne  ought  to  be 
removed  and  M.  substituted.  Burgess,  In  re, 
Burgess  v.  Bottomley,  25  Ch.  D.  243  ;  50  L.  T. 
168 ;  32  W.  R.  511— C.  A. 

On  an  application  by  the  next  friend  of  an 
infant  plaintiff  for  the  removal  of  a  receiver  in 
the  action,  the  court  refused  the  application,  but 
expressed  dissatisfaction  with  the  general  con- 
duct of  the  next  friend,  and  ordered  that  the 
official  solicitor  should  be  named  as  the  next 
friend  of  the  infant  in  all  future  proceedings, 
and  that  the  next  friend  should  deliver  up  all 
documents  to  him.  On  appeal,  this  order  was 
discharged,  on  the  ground  that  although  the 
court  had,  on  a  proper  application,  jurisdiction  to 
remove  a  next  friend,  such  a  coarse  ought  not  to 
he  taken  without  giving  the  next  friend  an 
opportunity  of  explaining  his  conduct.  Corsellis, 
A  re,  Lawton  v.  JSlwcs,  50  L.  T.  703  ;  32  W.  R. 
*••    C  A. 

A  father  authorised  a  stranger  to  act  as  next 
friend  to  his  infant  children  ;  he  died,  having  by 
will  appointed  his  wife,  their  mother,  guardian 
of  his  children  : — Held,  that  the  mother  had  the 
right  to  remove  the  next  friend  and  be  substi- 
tuted in  his  place.  Hutchinson  v.  Sorwood,  31 
Ch.  D.  237  ;  55  L.  J.,  Ch.  376  ;  64  L.  T.  15  ;  34 
W.  &  214— Pearson,  J. 

Affidavit  of  Documents  by.] — The  court 

refined  either  to  order  the  next  friend  of  an 
infant  plaintiff  to  make  an  affidavit  as  to  docu- 
ments, or  stay  the  action  till  he  made  such 
affidavit.  Dyke  v.  Stephens,  30  Ch.  D.  189  ;  56 
L.  in  Ch.  41 ;  53  L.  T.  661 ;  33  W.  R.  932— 
Pearson,  J. 


Coats — Solicitor  and  Client — Reversion.] 

—When  the  costs  of  infant  plaintiffs  suing  by 
their  next  friend  are  directed  to  be  paid  out  of 
a  fund  in  court  to  which  the  infants  are  entitled 
in  reversion,  party  and  party  costs  only  will  be 
immediately  paid  ;  the  next  friend  having 
liberty  to  apply  for  the  difference  between 
these  coats  and  costs  as  between  solicitor  and 
when  the  fond  comes  into    possession. 


Damant  v.  Hennell,  33  Ch.  D.  224  ;  65  L.  T.  182  ; 
34  W.  R.  774— Stirling,  J. 

Personal  Liability  of  Solicitor  for  Costs  of 
Infant  Defendant.] — Where  a  writ  of  summons 
is  served  on  an  infant,  and  an  appearance 
entered  for  him  by  a  solicitor  without  know- 
ledge of  his  infancy  and  bona  fide,  and  costs 
are  subsequently  incurred  by  the  plaintiff  in 
proceedings  in  the  action,  which  became  abor- 
tive by  reason  of  the  defendant's  infancy : — 
Held,  that  although  the  appearance  and  defence 
will  be  set  aside  as  irregular,  the  solicitor 
entering  the  appearance  is  not  personally  liable 
for  the  costs  thereby  occasioned  by  the  plaintiff. 
Wade  v.  Keefe,  22  L.  R..  Ir.,  154— Q.  B.  D. 

Change  of  Parties  by  Birth.]— See  Pbactiok 
(Pabties). 

Motion  for  Judgment — Default  of  Pleading' 
— Infant  Defendants.] — On  a  motion  for  judg- 
ment in  default  of  pleading  by  the  plaintiffs  in 
a  partition  action,  some  of  the  defendants  being 
infants  : — Held,  that  it  was  not  necessary  that 
any  affidavit  should  be  made  verifying  the  state- 
ments in  the  statement  of  claim.  Ripley  v. 
Sawyer,  31  Ch.  D.  494  ;  55  L.  J.,  Ch.  407 ;  54 
L.  T.  294  ;  34  W.  R.  270— Pearson,  J. 

The  defence  of  two  infant  defendants  in  an 
ejectment  action  was  withdrawn  under  an  order 
of  court.  The  other  defendants  having  made 
admissions,  judgment  was  moved  for,  supported 
by  an  affidavit  proving  the  statement  of  claim  : 
— Held,  that  the  correct  course  where  infants 
are  parties,  and  their  defence  is  withdrawn  and 
judgment  is  moved  for,  is  to  prove  the  state- 
ment of  claim  by  affidavit.  Gardner  v.  Tapling, 
33  W.  R.  473— North,  J. 

Where  there  are  minor  defendants  who  do  not 
file  any  defence,  the  proper  course  is  to  move  for 
judgment  against  such  defendants  under  Ord. 
XXXIX.  r.  1,  grounding  the  motion  upon  affi- 
davits verifying  the  statement  of  claim.  Walli* 
v.  Wallis,  13  L.  R.,  Ir.  258— V.-C. 

Foreclosure  —  Parties  —  Settlement.]  —  By  a 

post-nuptial  settlement,  lands  of  which  the  wife, 
before  the  marriage,  had  been  seised  in  fee,  were 
settled,  subject  to  successive  life  estates  for  hus- 
band and  wife,  upon  the  children  of  the  marriage, 
reserving  to  the  husband  and  wife  power  of 
revocation,  and  power  to  charge  the  lands  with 
1 ,0002.  The  husband  and  wife  executed  a  second 
settlement,  conveying  the  lands  in  trust  for  the 
wife  for  her  separate  use  during  their  joint  lives, 
and,  subject  thereto,  and  to  an  annuity  for  the 
survivor,  in  trust  for  the  children  of  the  marriage. 
Afterwards  both  husband  and  wife  purported  to 
mortgage  the  lands  in  fee.  In  a  suit  for  fore- 
closure and  sale,  instituted  by  the  mortgagee 
against  the  husband  and  wife  and  the  trustee  of 
the  second  settlement,  an  order  was  made 
declaring  the  mortgage  well  charged  on  the 
lands,  and  directing  a  sale.  The  children  were 
at  the  date  of  the  order  infants,  and  were  not 
named  as  respondents  in  the  petition  or  repre- 
sented by  the  guardians  in  the  matter  : — Held, 
that  the  order  was  not  binding  on  the  children. 
Home  of  the  children  sold  their  shares,  and  con- 
veyed them  to  the  purchasers  subject  to  the 
mortgage : — Held,  that  the  mortgage  was  not 
thereby  converted  into  a  valid  charge  on  the 


988 


INFORMATION. 


984 


shares  conveyed.  JBelVt  Estate,  In  re,  11  L.  R., 
Ir.  512 — Land  Judges. 

Day  to  show  Cause.] — In  an  action  by 

an  equitable  mortgagee,  without  any  memoran- 
dum of  deposit  of  title-deeds,  against  the  widow 
and  infant  heir-at-law  of  the  mortgagor  for  fore- 
closure : — Held,  on  motion  for  judgment,  the 
defendants  not  having  appeared,  that  the  infant 
heir  must  be  ordered  to  convey  the  estate  when 
he  attained  the  age  of  twenty-one  years,  and  that 
he  must  have  a  day  to  show  cause  in  the  usual 
way.  Price  v.  Carver  (3  My.  &  Cr.  157)  followed. 
Mellor  v.  Porter,  25  Ch.  D.  158  ;  53  L.  J.,  Ch. 
178  ;  50  L.  T.  49  ;  32  W.  R.  271—  Kay,  J. 

Judgment  for  foreclosure  was  made  absolute 
against  an  infant  without  giving  time  to  show 
cause,  the  mortgagee  offering  to  pay  the  infant's 
costs  as  between  solicitor  and  client,  and  the 
guardian  of  an  infant  being  of  opinion  that  it 
was  for  the  benefit  of  the  infant  that  the  order 
should  be  made,  and  there  being  evidence  that 
the  mortgage  debt  greatly  exceeded  the  value  of 
the  property.  Tounge  v.  Cocker.  32  W.  R.  359— 
Chitty,  J. 

Bringing  Infants  before  Bankruptcy  Court — 
Avoidance  of  Settlement.]— When  it  is  desired 
to  bring  an  infant  before  the  court,  the  proper 
course  is  to  apply  for  the  appointment  of  a 
guardian  ad  litem.  Where  on  an  appeal  from 
a  county  court,  the  divisional  court  in  bank- 
ruptcy directs  such  appeal  to  stand  over  in  order 
that  certain  persons,  some  of  whom  are  infants, 
may  be  made  parties,  it  would  appear  that  an 
application  for  the  appointment  for  a  guardian 
ad  litem  should  be  made  to  the  county  court. 
Trustee,  Ex  parte,  Lowndes,  In  re,  3  M.  B.  R. 
216— Cave,  J. 

Administration  Action — Staying  Proceedings 
—Infant  Defendant. J— Where  some  of  the  de- 
fendants in  an  administration  action  offered  to 
satisfy  the  whole  of  the  plaintiff's  claim  and  the 
costs  of  the  action,  the  court  refused  to  stay  the 
proceedings  unless  the  rights  of  an  infant  defen- 
dant interested  in  the  suit  were  also  provided 
for.     Clegg  v.  Clegg,  17  L.  R.,  Ir.  118- V.-C. 

Partition— Sale  out  of  Court.]— Where  some 
of  the  parties  beneficially  interested  are  nrt  sui 
juris,  and  the  trustees  have  no  power  of  sale 
under  their  trust  deed,  there  is  no  jurisdiction 
under  the  Partition  Act,  1868,  8.  8,  to  order  a 
sale  out  of  court  Strugnell  v.  Strugnell,  27 
Ch.  D.  258  ;  53  L.  J.,  Ch.  1167  ;  61  L.  T.  512  ; 
33  W.  R.  30— Chitty,  J. 

Order  against  Infant  Trustee  to  Account.] — 
In  an  action  against  trustees  of  a  settlement, 
asking  (inter  alia)  that  each  should  furnish  and 
vouch  their  accounts  of  the  trust  declared 
thereby,  one  of  the  trustees  (R.)  had  only 
recently  attained  twenty-one.  Bacon,  V.-C, 
directed  that  in  taking  the  account,  the  same 
was,  as  regards  R.,  to  be  limited  to  any  moneys 
and  properties  received  by  him  since  he  attained 
twenty-one.  On  appeal,  the  court,  without  then 
determining  the  liability  of  such  infant  trustee, 
held  that  the  proper  form  of  decree  was  to  order 
the  account  against  the  adult  trustee  in  the 
usual  form,  directing  an  inquiry  whether  all  or 
any  and  what  parts  of  the  trust  property  had 
come  to  the  hands  of  R.,  and  what  bad  been  his 


dealings  and  transactions  in  respect  of  the  same, 
and  as  to  the  dates  of,  and  circumstances  attend- 
ing, such  receipts,  dealings,  and  transactions. 
Games,  In  re,  Games  v.  Applin,  31  Ch.  D.  147 ; 
55  L.  J.,  Ch.  303  ;  54  L.  T.  141 ;  34  W.  R.  127— 
C.  A. 


INFERIOR    COURT. 

See  COURT. 


INFORMATION. 

Who  may  Present  — Attorney -General  for 
Duchy  of  Lancaster.] — It  is  not  competent  to 
the  Attorney-General  of  the  Duchy  of  Lancaster 
to  exhibit  an  information  in  the  High  Court  of 
Justice,  and  the  court  will  order  an  information 
exhibited  by  him  to  be  taken  off  the  file  on  the 
application  of  the  defendant  even  after  answer 
put  in  by  him.  Attorney 'General  QDuehy  ef 
Lancaster)  v.  Devonshire  (Duke),  14  Q.  B.  D. 
195  ;  54  L.  J.,  Q.  B.  271  ;  33  W.  R.  367— D. 

Appeal  to  Court  of  Appeal  — "  Criminal 
Hatter  "—Parliamentary  Oaths   Act,  1866.]- 

Upon  the  trial  of  an  information  at  the  suit  of 
the  Attorney-General  against  a  member  of  the 
House  of  Commons  for  voting  without  having 
taken  the  oath  of  allegiance  within  the  meaning 
of  the  Parliamentary  Oaths  Act,  1866,  as  amended 
by  the  Promissory  Oaths  Act,  1868,  judgment 
was  given  for  the  Crown,  and  the  Divisional 
Court  refused  to  grant  a  rule  for  a  new  trial, 
on  the  ground  of  misdirection  and  misreceptaon 
of  evidence.  On  application  by  the  defendant  to 
the  Court  of  Appeal : — Held,  that  the  Court  of 
Appeal  had  power  to  hear  the  application  and 
to  grant  a  new  trial  in  such  a  case. — By  Brett, 
M.R.,  and  Lindley,  L.J.,  Cotton,  LuJ.,  doubting, 
an  information  at  the  suit  of  the  Attorney- 
General  to  recover  penalties  under  s.  5  of  the 
Parliamentary  Oaths  Act,  1866,  from  a  member 
of  Parliament  for  voting  without  having  taken 
the  oath  of  allegiance  required  by  that  statute, 
as  amended  by  the  Promissory  Oaths  Act,  1868, 
is  not  a  "  criminal  cause  or  matter  "  within  the 
meaning  of  the  Supreme  Court  of  Judicature 
Act,  8.  47,  and  an  appeal  may  be  brought  from 
any  order  or  judgment  therein  of  the  High 
Court  to  the  Court  of  Appeal : — By  Brett,  M.K., 
on  the  ground  that  the  information  is  in  its 
nature  a  civil  proceeding,  and,  therefore,  that  an 
appeal  lies  under  the  Supreme  Court  of  Judica- 
ture Act,  1873,  s.  19  : — By  Lindley,  LJT.,  on  the 
ground  that  even  although  the  information  may 
be  to  some  extent  of  a  criminal  nature,  never- 
theless before  the  passing  of  the  Supreme  Court 
of  Judicature  Acts,  1873. 1875,  an  appeal  would 
have  lain  under  the  Crown  Suits  Act,  1865  (28 
&  29  Vict  c.  104),  as.  31,  34,  35,  from  a  decision 
of  the  Court  of  Exchequer  to  the  Court  of  Ex- 
chequer Chamber,  and  that  the  Supreme  Court 
of  Judicature  Acts,  1873, 1875,  do  not  take  away 
any  right  of  appeal  existing  before  the  passing 


985 


INJUNCTION. 


986 


of  those  statutes. — Semble,  by  Brett,  M.R.,  that 
even  if  the  information  could  be  regarded  as 
i  criminal  proceeding,  nevertheless  an  appeal 
would  lie,  for  by  the  Supreme  Court  of  Judica- 
ture Act,  1873,  s.  47,  the  right  of  appeal  is  taken 
away  only  in  the  case  of  indictments,  of  criminal 
informations  for  indictable  misdemeanors  filed 
in  the  Queen's  Bench  Division,  and  of  criminal  j 
proceedings  before  justices.  Attorney- General 
t.  Bradlaugh,  14  Q.  B.  D.  667  ;  54  L.  J.,  Q.  B. 
205 ;  52  L.  T.  589  ;  33  W.  R.  673— C.  A. 

Votiee  of  Motion— Hot  Ex  parte.]— An 

appeal  lies  to  the  Court  of  Appeal  from  any 
order  or  judgment  made  or  given  by  the  Queen's 
Bench  Division  either  during,  or  afterwards  with 
respect  to,  a  trial  at  bar  of  a  civil  proceeding, 
ana  whether  or  not  the  appeal  is  brought  from 
a  decision  upon  a  motion  for  a  new  trial  on  the 
ground  of  misdirection  or  wrongful  reception  of 
evidence;  but  the  appeal  must  be  brought  on 
by  notice  of  motion,  an  ex  parte  application  for 
a  role  nisi  to  the  Court  of  Appeal  being  irregular. 
lb. 


INJUNCTION. 

1.  General  Principles. 

2.  In  Particular  Cases. 


1.  General  Principles. 

Injunction  or  Damages — Principles  on  whioh 
Gouts  act] — The  principles  upon  which  the 
courts  act  in  deciding  whether  or  not  to  award 
damages  in  lien  of  an  injunction  under  Lord 
Cairns'  Act,  in  cases  of  injury  to  property,  are 
as  follows : — If  the  defendant,  in  the  injury  he  is 
inflicting,  is  doing  an  act  which  will  render  the 
property  of  the  plaintiff  absolutely  useless  to 
him  unless  it  is  stopped,  then,  inasmuch  as  the 
only  compensation  which  could  be  given  to  the 
plaintiff  would  be  to  compel  the  defendant 
absolutely  to  purchase  the  property,  the  court 
will  not,  in  the  exercise  of  the  discretion  given 
to  it  by  the  act,  withhold  an  injunction.  Where, 
however,  the  injury  is  less  serious,  and  the  court 
considers  that  the  property  may  still  remain  the 
property  of  the  plaintiff,  and  be  still  substan- 
tially as  useful  as  it  was  before  the  defendant's 
acts,  and  that  the  injury,  therefore,  is  of  such  a 
nature  as  can  be  compensated  by  money  without 
taking  away  the  property  from  the  plaintiff,  the 
court  has  and  will  exercise  a  discretion  to  award 
damages  in  place  of  an  injunction.  Holland  v. 
WorUy,  26  Ch.  D.  678 ;  54  L.  J.,  Ch.  268 ;  60 
L.  T.  626  ;  32  W.  B.  749  ;  49  J.  P.  7— Pearson,  J. 

Lord  Cairns'  Aot— Repeal.] — The  court 

has  power  under  Lord  Cairns'  Act  to  refuse  an 
injunction,  although  no  case  is  established  for 
granting  damages  in  substitution  for  the  injunc- 
tion, and  in  such  a  case  may  dismiss  an  action 
to  enforce  a  covenant  with  costs.  Sayers  v. 
CfUyer,  infra. 

Although  Lord  Cairns'  Act  (21  k  22  Vict,  c. 
27)  is  repealed  by  the  Statute  Law  Revision  and 
Civil  Procedure  Act,  1883  (46  &  47  Vict  c.  49), 
i  3,  under  sect  6  the  jurisdiction  conferred 


thereby  is  still  in  force — Per  Baggallay,  L.  J. 
lb. 

Mandatory — Discretion.] — Upon  a  motion  for 
an  interlocutory  injunction  to  restrain  an  inter- 
ference with  light  and  air,  the  defendant  gave 
an  undertaking  to  pull  down  any  building  there- 
after erected  or  proceeded  with,  and  to  abide  by 
any  order  as  to  damages  ;  whereupon  the  court 
made  no  order  upon  the  motion.  The  defendant 
subsequently  completed  his  buildings.  At  the 
trial  of  the  action,  when  a  mandatory  injunction 
was  asked  for,  it  was  proved  that  the  defendant's 
buildings  obstructed  the  plaintiff's  ancient 
lights  : — Held,  that  it  was  a  proper  case  for  the 
court  to  grant  a  mandatory  injunction,  and  not 
to  award  damages  in  lieu  thereof,  under  the  dis- 
cretion given  by  Lord  Cairns'  Act  Greenwood 
v.  Hornsey,  33  Ch.  471 ;  55  L.  J.,  Ch.  917 ; 
65  L.  T.  135  ;  35  W.  R.  163— V.-C.  B. 

Interlocutory  —  Irreparable   Damage.]  —  To 

warrant  the  court  in  granting  an  interim  or 
interlocutory  injunction  to  restrain  persons  from 
pursuing  an  objectionable  course  of  conduct, 
those  who  complain  must  at  least  show  that  they 
have  sustained  or  will  sustain  "irreparable 
damage  " — i.e.,  damage  for  which  they  cannot  ob- 
tain adequate  compensation  without  the  special 
interference  of  the  court.  Mogul  Steamship  Com- 
pany t.  Macgregor,  15  Q.  B.  D.  476  ;  54  L.  J.t 
540  ;  53  L.  T.  268  ;  49  J.  P.  646  ;  5  Asp.  M.  C. 
467  ;  15  Cox,  C.  C.  740— D. 

Balance  of  Convenience.] — On  a  motion 

for  an  interim  injunction,  the  court,  holding 
that  the  plaintiffs  had  shown  an  intention  to 
preserve  and  not  to  abandon  their  ancient 
lights,  and  that  there  was  a  fair  question  of 
right  to  be  tried  at  the  hearing,  and  considering 
that  the  balance  of  convenience  was  in  favour 
of  granting  an  injunction  rather  than  allowing 
the  defendants  to  complete  their  building  with 
an  undertaking  to  pull  it  down  if  required  to  do 
so,  granted  an  injunction  till  the  hearing. 
Newton  v.  Pender,  27  Ch.  D.  43  ;  52  L.  T.  9  ;  33 
W.  R.  243—C.  A. 


Remedy  Barred  by  Acquiescence.]— A  building 
estate  was  laid  out  in  lots,  which  were  sold  by  the 
owners  of  the  estate  to  different  purchasers,  each 
of  whom  covenanted  with  the  vendors  and  with  the 
purchasers  of  the  other  lots  entitled  to  the  benefit 
of  the  covenant  not  to  build  a  shop  on  his  land, 
or  to  use  his  house  as  a  shop  or  to  carry  on  any 
trade  therein.  The  purchaser  of  one  of  the  lots, 
who  occupied  his  house  as  a  private  residence, 
brought  an  action  against  the  purchaser  of 
another  lot,  who  was  using  his  house  as  a  beer- 
shop  with  an  "  off  "  licence  to  restrain  him  from 
breaking  his  covenant  and  for  damages.  The 
plaintiff  had  known  for  three  years  before  the 
action  was  commenced  that  the  defendant  was 
using  his  house  as  a  beershop,  and  had  himself 
bought  beer  at  the  shop.  There  was  evidence 
that  some  of  the  houses  built  on  other  lots  had 
been  for  some  time  used  as  shops  notwithstand- 
ing the  covenant,  and  that  some  of  the  houses 
near  the  plaintiff's  house  were  occupied,  not 
each  by  a  single  tenant,  but  by  two  families  at 
weekly  rents : — Held,  that  the  change  in  the 
character  of  the  neighbourhood  was  not  in  itself 
a  ground  for  refusing  relief  to  the  plaintiff,  as 
the  change  was  not  caused  by  his  conduct ;  but 


987 


INJUNCTION. 


988 


that  the  plaintiff  had  lost  the  right  to  enforce 
his  covenant  either  by  injunction  or  damages 
through  his  acquiescence  in  the  proceedings  of 
the  defendant.  Duke  of  Bedford  v.  Trustee*  of 
the  British  Museum  (2  My.  &  K.  552),  explained. 
Sayers  v.  Collyer,  28  Ch.  D.  103  ;  54  L.  J.,  Ch. 
1  ;  61 L.  T.  723  ;  33  W.  R.  91 ;  49  J.  P.  244— 
C.A. 

Per  Fry,  L.  J. : — An  amount  of  acquiescence  on 
the  part  of  the  plaintiff  which  would  not  be  suf- 
ficient to  bar  his  action,  may  be  sufficient  to 
induce  the  court  to  give  damages  instead  of  an 
injunction.    lb. 


Delay.] — A  delay  of  fourteen    months 


by  a  plaintiff  in  taking  steps  to  prevent  the 
continuance  of  a  breach  of  a  restrictive  cove- 
nant will  not  amount  to  such  acquiescence  as  to 
disentitle  him  to  an  injunction.  Northumber- 
land (Duke)  v.  Bowman,  56  L.  T.  773 — Keke- 
wich,  J. 


Public  Convenience — Breach  of  Statutory 


Contract.] — In  an  action  brought  to  obtain  a 
mandatory  injunction  to  compel  the  defendants 
to  pull  down  a  goods  station  and  cattle  shed 
which  they  had  erected  140  yards  from  Bala 
station,  in  the  face  of  sab-sect.  6  of  sect.  6  of  an 
act  which  provided,  "  that  at  that  station  there 
should  be  no  goods  or  cattle  station  ; "  the  plain- 
tiff had  not  objected  to  the  buildings  till  they 
were  nearly  completed,  owing  to  his  being  abroad 
.at  the  time,  and  ignorant  of  their  erection  until 
his  return.  The  defendants  contended  that  the 
buildings  in  question  had  not  been  erected  "  at " 
the  station,  as  they  were  140  yards  off  ;  that,  if 
they  had  been,  it  was  for  the  public  convenience 
they  should  be  there,  and  that  the  plaintiff  was 
precluded  by  his  acquiescence  from  now  obtain- 
ing a  mandatory  injunction  to  remove  : — Held, 
that  by  sub-sect.  6  the  defendants  had  made  a 
statutory  contract  not  to  do  what  the  court  was 
of  opinion  they  had  done,  so  that  the  question  of 
public  convenience  did  not  apply,  and  that  the 
acquiescence  of  the  plaintiff  was  not  such  as 
would  preclude  him  from  obtaining  the  injunc- 
tion, but  that  the  court  would  grant  one,  com- 
pelling the  defendants  to  remove  the  buildings 
as  prayed.  Price  v.  Bala  and  Festiniog  Rail- 
way, 50  L.  T.  787— Chitty,  J. 

Proof  of  Damage — Building  Land— Covenant 
to  erect  Houses  of  certain  Value.] — A  plaintiff 
bought  certain  plots  on  a  building  estate  subject 
to  certain  restrictions ;  the  defendant  subse- 
quently bought  other  plots  with  a  restriction  as 
to  the  value  of  the  house  to  be  erected,  but  he 
proposed  to  build  houses  of  less  value : — Held, 
that  the  plaintiff  in  such  a  case  is  not  obliged  to 
prove  damage  in  order  to  obtain  an  injunction. 
Collins  v.  Castle,  36  Ch.  D.  243  ;  57  L.  J.,  Ch. 
76  ;  57  L.  T.  764 ;  36  W.  R.  300— Kekewich,  J. 

Motion  to  Discharge  for  Misrepresentation.] — 

A  motion  to  discharge  an  ex  parte  injunction  on 
the  ground  of  its  having  been  obtained  by  mis- 
representation is  proper,  though  the  injunction 
is  about  to  expire.  Wimbledon  Local  Board  v. 
Croydon  Sanitary  Authority,  32  Ch.  D.  421 — 
North,  J. 

Undertaking  as  to  Damages  —  Injunction 
wrongly  granted.] — Where  a  plaintiff  obtains  an 
interlocutory  injunction,  upon  giving  an  under- 


taking in  damages,  the  defendant  is  entitled  to 
the  benefit  of  the  undertaking  even  though  it 
should  afterwards  be  decided  that  the  injunction 
was  wrongly  granted,  owing  to  the  mistake  of 
the  court  itself.  Dictum  of  Jessel,  M.B.,  in 
Smith  v.  Day  (21  Ch.  D.  421),  disapproved. 
Griffith  v.  Blake,  27  Ch.  D.  474 ;  53  L.  J,  Ch. 
965  ;  61  L.  T.  274  ;  32  W.  R.  833— C.  A 

Where  an  injunction  is  wrongly  granted,  an 
undertaking  as  to  damages  given  by  the  plaintiff 
is  equally  enforceable  whether  the  mistake  was 
in  point  of  law  or  in  point  of  fact.  In  such  a 
case  the  court  has  no  discretion  to  refuse  an 
inquiry  as  to  damages  unless  the  damages  alleged 
would  be  too  remote  if  the  defendant  were 
suing  in  respect  of  them  upon  a  breach  of 
contract.  Hunt  v.  Hunt,  54  L.  J.,  Ch.  289 
— Pearson,  J. 


What  Losses.] — An  army  surgeon,  living 


apart  from  his  wife,  was  under  orders  to  flail 
for  Egypt,  and  proposed  to  take  some  of  his 
children  with  him.  The  wife  obtained  an  in* 
junction  to  restrain  him  from  so  doing,  the  judge 
considering  that  he  would  be  acting  in  contra- 
vention of  the  separation  deed  between  them. 
The  Court  of  Appeal  took  a  different  view  of  the 
effect  of  the  separation  deed  and  dissolved  the 
injunction.  The  husband  applied  for  an  inquiry 
as  to  damages  occasioned  to  him  by  the  injunc- 
tion, in  enforcement  of  an  undertaking  as  to 
damages  given  by  the  wife,  alleging  loss  of  free 
passages  to  Egypt  for  the  children,  loss  of  par. 
and  expenses  caused  by  his  stay  in  London  :— 
Held,  tuat  the  inquiry  must  be  granted.    lb. 

Where  Plaintiff  is  a  Married  Woman.] 

— An  application  was  made  on  behalf  of  a 
married  woman  for  an  injunction  restraining  the 
Bank  of  England,  until  further  order,  from  per* 
mitting  the  transfer  of  a  sum  of  New  Three  per 
Cent.  Annuities,  standing  in  the  names  of  the 
executors  of  a  testator  and  to  which  the  married 
woman  claimed  to  be  beneficially  entitled.  An 
injunction  was  granted  for  a  fortnight  on  the 
usual  undertaking  of  the  married  woman  to  he 
answerable  in  damages.  The  registrar  refused 
to  draw  up  the  order  on  the  sole  undertaking  of 
the  married  woman  as  to  damages : — Held,  that 
the  sole  undertaking  of  the  married  woman  must 
be  accepted.  Prynne,  In  re,  53  L.  T.  465 -Pear- 
son, J. 

Breach  of  Injunction — Service  of  Order— lotto 
— Committal  for  Contempt.] — It  is  not  the  rule 
on  applications  for  committal  for  contempt  by 
disregarding  an  order  of  the  court,  that  the  court 
will  only  commit  where,  there  having  been  time 
to  draw  up,  enter,  and  serve  the  order,  such 
order  has  been  actually  served  on  the  offending 
party.  On  the  contrary,  even  where  the  order  is 
ten  or  eleven  months  old,  and  has  never  been  so 
served,  the  party  disregarding  it  will  be  com- 
mitted if  it  appears  that  he  really  knew  of  it* 
existence  and  purport,  and  wilfully  disobeyed  it 
United  Telephone  Company  v.  Dale,  25  Ch.  D. 
778 ;  53  L.  J.,  Ch.  295 ;  60  L.  T.  85 ;  » 
W.  R.  428— Pearson,  J. 

An  attachment  may  be  issued  for  breach  of  an 
injunction,  although  no  writ  of  injunction  has 
been  actually  issued,  when  the  defendant,  after 
being  served  with  the  decree  or  order  for  injunc- 
tion has  disobeyed  it.  Mining  Gmpany  <f 
Ireland  v.  Delany,  21  L.  R.,  Ir.  8— V.  C. 


INJUNCTION. 


990 


with  Gotta — Interim  Injunction.] 
—An  order  made  on  notice  and  continuing  an 
injunction  with  costs  will,  in  the  absence  of 
special  directions  to  the  contrary,  include  the 
cottsof  an  interim  injunction  previously  obtained 
on  an  ex  parte  application.  Blakey  v.  Hall, 
56  L.  J.,  Cb.  568 ;  56  L.  T.  400  ;  35  W.  R.  592— 
Chitty,J. 

Taxation  of  Costs  en  Higher  Scale.]— &><? 
Cora,  VI.  1,  e.  i. 

2.   Iw  Pabtigtjlab  Cases. 

Breach  of  Statutory  Provision  —  Ho  Proof 
«f  Actual  Damage  necessary.]  —  Where  an 
act  of  parliament  contains  a  provision  for  the 
special  protection  or  benefit  of  an  individual,  he 
may  enforce  his  rights  thereunder  by  an  action, 
without  either  joining  the  Attorney-General  as 
a  party  or  showing  that  he  has  sustained  any 
particular  damage.  The  Plymouth,  Devonport, 
and  District  Tramways  Act,  1882,  authorised  the 
making  of  tramways  in  the  adjoining  boroughs 
of  P.  and  D.Y  and  provided  that  the  defendant 
company  should  not,  without  the  consent  of  the 
corporations  of  P.  and  D.,  use  for  public  traffic 
any  of  the  tramways  mentioned  in  the  act  until 
toe  whole  system  was  completed,  and  if  either 
corporation  should  at  any  time  complain  to  the 
Board  of  Trade  that  the  company  were  not 
curving  ont  this  provision,  the  board  might 
direct  an  inquiry  in  the  manner  prescribed  by 
the  act,  and  the  company  was  to  abide  by  every 
order  made  consequent  on  such  inquiry  by  the 
board.  The  company  had  opened  and  worked  a 
tramway  in  P.  without  the  requisite  consent,  and 
the  corporation  of  D.  moved  for  an  interim  in- 
junction to  restrain  the  company  from  working 
the  section  opened  until  the  whole  system  in 
both  boroughs  was  complete: — Held,  that  the 
injunction  could  be  granted,  as  there  was  nothing 
in  the  section  of  the  private  act  to  take  the  case 
oat  of  the  jurisdiction  under  the  Judicature  Act, 
1873,  to  grant  an  injunction,  and  that  the  plain- 
tiffs were  entitled  to  complain  of  the  breach  of 
the  conditions  imposed  by  the  private  act, 
without  showing  that  they  had  thereby  sustained 
any  actual  damage.  Devonport  (Mayor)  v. 
Plymouth  and  Devonport  Tramways  Company, 
52  L.  T.  161 ;  49  J.  P.  405— C.  A.  See  Price  v. 
Baia  and  FeHiniog  Railway  y  ante,  col.  987. 

water  Company  withholding  Water— Dispute 
as  to  Annual  Value.] — Although  the  statutory 
remedy  provided  by  a  68  of  the  Waterworks 
Chases  Act,  1847,  for  the  settlement  by  two 
justices  of  disputes  as  to  the  annual  value  of  a 
tenement  supplied  with  water,  and  the  special 
remedy  by  penalties  given  by  s.  43  against  a 
company  for  withholding  water,  have  not  ousted 
the  general  jurisdiction  to  restrain  the  company 
by  injunction  from  cutting  off  the  supply  of 
water  pending  proceedings  for  settling  a  dispute 
**  to  value,  such  injunction  will  not  be  granted 
on  the  application  of  an  owner  or  occupier  who 
will  not  undertake  to  commence  proceedings 
with  due  speed  before  the  justices  under  s.  68. 
Baywardr.  East  London  Waterworks  Company, 
28  Ch.  D.  138  ;  64  L.  J.,  Ch.  523  ;  62  L.  1 176 
-Chitty,J. 

Exercise  of  Legal  Power  not  Restrained  if 
«*■•  bona  fldo.] — Defendants  were  lessees  of 


mines  with  liberty,  on  giving  notice,  to  make 
such  railways  over  the  surface  as  they  should 
think  necessary  or  convenient  for  carrying  away 
the  minerals.  The  plaintiffs,  being  lessees  of 
other  mines  under  the  same  lessor,  took  from 
him  a  lease  of  two  closes  of  the  same  surface 
lands  over  which  the  defendants'  power  ex- 
tended, in  order  to  make  a  railroad  for  their 
minerals.  The  defendants  thereupon  gave 
notice  that  they  required  part  of  the  surface 
lands  for  continuing  a  siding  they  already  had 
communicating  with  a  neighbouring  railway, 
and  proceeded  to  construct  a  siding  on  the  same 
two  closes  which  had  been  leased  to  the  plaintiffs 
and  (as  required  by  their  lease)  to  fence  in  the 
land,  the  effect  being  to  exclude  the  plaintiffs 
from  access  across  the  closes  to  the  railway. 
The  plaintiffs  brought  an  action  to  restrain  the 
obstruction,  alleging  that  the  defendants1 
further  lines  were  unnecessary,  and  that  the 
defendants  were  exercising  their  power  mala 
fide  and  unreasonably  : — Held,  by  analogy  to 
the  principle  governing  cases  of  purchase  under 
compulsory  powers,  that,  as  the  defendants  were 
exercising  a  legal  power,  the  onus  of  proving 
mala  fides  was  on  the  plaintiffs,  and  that  even 
if  further  accommodation  was  not  at  present 
necessary,  the  defendants  were  entitled  to  look 
forward  to  the  time  when  it  might  become  so. 
James  v.  Lovel,  56  L.  T.  739  ;  35  W.  R.  626— 
Kekewich,  J. 

Agreement  to  serve  as  Manager  in  Business.] 
— Where  in  breach  of  an  agreement  by  the  de- 
fendant to  serve  the  plaintiff  for  fourteen  years 
as  manager  of  his  business  (which  agreement 
contained  no  express  negative  covenants),  the 
defendant  left  the  plaintiff,  and  started  a  similar 
business  a  few  doors  off  : — Held,  that  the  court 
had  power  to  grant  an  injunction,  but  that  the 
power  was  discretionary,  and  the  case  was  not 
one  for  its  exercise.  Jackson  v.  Astley,  1  C.  k  E. 
181 — Pollock,  B.  See  also  cases  sub  tit.  Con- 
tract, III.  3,  g. 

To  Evicted  Tenant  to  Eemove  Timber.] — In- 
junction granted  ordering  defendant  to  remove 
logs  of  timber  left  by  him  on  premises  of  which 
he  had  agreed  to  give  up  possession  at  the  end 
of  his  lease,  and  from  which  he  was  evicted  by  a 
writ  of  possession.  Guinness  v.  Fitzsimons,  13 
L.  R.,  Ir.  71— M.  R. 

Panning  Agreement— Agreement  to  keep  Farm 
Properly  Stocked.] — An  injunction  will  not  be 
granted  to  restrain  a  threatened  breach  by  a 
tenant  of  a  stipulation  in  a  farming  agreement 
requiring  him  to  keep  on  the  farm  a  proper  and 
sufficient  stock  of  sheep,  horses,  and  cattle. 
Phipps  v.  Jackson,  56  L.  J.,  Ch.  550  ;  33  W.  R. 
378— Stirling,  J. 

Stage  Carriage — Use  of  Manager's  name.] — 

The  plainti5,  as  manager  of  an  omnibus  com- 
pany, became,  under  the  provisions  of  the 
statutes  and  rules  for  the  regulation  of  metro- 
politan stage-carriages,  the  licensee  of  their 
vehicles.  Having  ceased  to  be  such  manager : — 
Held,  that  he  was  entitled  to  an  injunction  to 
restrain  the  company  from  continuing  to  use  his 
name  upon  the  number  plates  affixed  to  their 
carriages.  Hodges  v.  London  Tramways  Omni- 
bus Company,  12  Q.  B.  D.  105  ;  50  L.  T.  262  ; 
32  W.  R.  616— D. 


991 


INJUNCTION. 


992 


Assuming  Business  Name— Damnum  absque 
injuria.] — The  short  address  "  Street,  London/' 
was  used  for  many  years  in  sending  telegrams 
from  abroad  to  Street  &  Co.,  of  CornhilL  A 
bank  adopted  by  arrangement  with  the  Post- 
office  the  phrase  "  Street,  London,"  as  a  cypher 
address  for  telegrams  from  abroad  to  themselves : 
— Held,  that  the  court  had  no  jurisdiction  to 
grant  an  injunction  restraining  the  bank  from 
using  such  address,  as  there  was  no  attempt  to 
interfere  with  trade,  no  legal  injury  done,  but 
simply  a  matter  of  inconvenience.  Street  v. 
Union  Bank  of  Spain  and  England,  30  Ch.  D. 
156  ;  55  L.  J.,  Ch.  31  ;  53  L.  T.  262  ;  33  W.  R. 
901 — Pearson.  J. 

Publio  Lecture— Notes  taken  by  Shorthand 
Writer — Publication  in  Shorthand  Characters.] 
— Where  a  lecture  is  delivered  to  an  audience 
admitted  by  ticket  without  payment,  there  is  an 
implied  contract  on  their  part  not  to  publish 
such  lecture  for  purposes  of  profit.  NicoU  v. 
Pitman,  26  Ch.  D.  374  ;  53  L.  J.,  Ch.  552 ;  50 
L.  T.  254  ;  32  W.  R.  631— Kay,  J. 

The  plaintiff  delivered  a  lecture  at  a  working 
men's  college  to  an  audience  who  were  admitted 
gratuitously  by  tickets  issued  by  the  committee 
of  the  college.  The  plaintiff  had  committed  the 
lecture  to  writing,  but  delivered  it  from  memory. 
The  defendant,  a  shorthand  writer,  attended  the 
lecture,  took  it  down  nearly  verbatim,  and  subse- 
quently published  his  notes  in  shorthand  cha- 
racters in  a  periodical  brought  out  and  sold  by 
him  for  the  instruction  of  learners  for  the  art  of 
shorthand  writing  : — Held,  that  the  plaintiff  was 
entitled  to  an  injunction  to  restrain  the  defendant 
from  so  publishing  the  lecture.  lb.  See  also 
Caird  v.  Sim*,  12  App.  Cas.  326  ;  67  L.  J.,  P.  C. 
2  ;  57  L.  T.  634  ;  36  W.  R.  199— H.  L.  (Sc). 

Letters  Addressed  to  Agent  at  Principal's 
Office — Compelling  Agent  to  rescind  Order  to 
Post-Omce.] — B.  was  employed  to  manage  one 
of  L.'s  branch  offices  for  the  sale  of  machines, 
and  resided  on  the  premises.  He  was  dismissed 
by  L.,  and  on  leaving  gave  the  postmaster  direc- 
tions to  forward  to  his  private  residence  all  letters 
addressed  to  him  at  L.'s  branch  office.  He 
admitted  that  among  the  letters  so  forwarded  to 
him  were  two  which  related  to  L.'s  business,  and 
that  he  did  not  hand  them  to  L.,  but  returned 
them  to  the  senders.  L.  brought  an  action  to 
restrain  B.  from  giving  notice  to  the  post-office 
to  forward  to  B.'s  residence  letters  addressed  to 
him  at  L.'s  office,  and  also  asking  that  he  might 
be  ordered  to  withdraw  the  notice  already  given 
to  the  post-office  : — Held,  that  the  defendant 
had  no  right  to  give  a  notice  to  the  post-office, 
the  effect  of  which  would  be  to  hand  over  to  him 
letters  of  which  it  was  probable  that  the  greater 
part  related  only  to  L.'s  business  ;  and  that  the 
case  was  one  in  which  a  mandatory  injunction 
compelling  the  defendant  to  withdraw  his  notice 
could  properly  be  made,  the  plaintiff  being  put 
under  an  undertaking  only  to  open  the  letters  at 
certain  specified  times,  with  liberty  for  the 
defendant  to  be  present  at  the  opening.  Her- 
mann Loog  v.  Bean,  26  Ch.  D.  306  ;  53  L.  J., 
Ch.  1128  ;  51  L.  T.  442  ;  32  W.  R.  994  ;  48  J.  P., 
708— C.  A. 

Marine  Insurance— Unseaworthiness  of  Ship 
— Action  on  Policy.] — In  an  action  by  under- 
writers for  an  injunction   to  restrain   policy- 


holders from  taking  any  proceedings  with 
reference  to  a  policy  of  insurance,  on  the  ground 
that  the  underwriters  had  an  admittedly  good 
defence  to  any  action  that  might  be  brought  on 
such  policy  : — Held,  that  an  injunction  ought 
not  to  be  granted.  Brooking  v.  Maudilay,  38 
Ch.  D.  636  ;  57  L.  J.,  Ch.  1001 ;  58  L.  T.  852 ; 
36  W.  R.  664  ;  6  Asp.  M.  C.  296— Stirling,  J. 

To  Prevent  Person  from  Permitting  Vvistiee 
beyond  his  Control.] — I  think  it  would  be  wrong 
to  enjoin  a  company  or  an  individual  from  per- 
mitting that  to  be  done  which  is  really  beyond 
his  control — not  beyond  his  control  in  this  sense. 
that  there  is  a  vis  major  or  an  act  of  God  pan- 
mount — but  beyond  his  control  in  the  sense  that 
he  cannot  by  any  precaution  or  by  any  worta 
with  reasonable  certainty  prevent  that  happen- 
ing which  all  contemplate  as  likely  to  happen. 
Evans  v.  Manchester,  Sheffield,  and  Linedntkire 
Railway,  36  Ch.  D.  639  ;  57  L.  J.,  Ch.  159 ;  57 
L.  T.  198  ;  36  W.  R.  331— Per  Kekewich,  J. 

Publication  of  Slander  or  LibeL]— See  Defa- 
mation. 

Breach  of  Covenants  in  Leases.]—  See  Land- 
lord and  Tenant. 

Infringement  of  Copyright  ] — See  Copyright. 

Threats  of  Infringement  of  Patent]—  8* 
Patent. 

Imitation  of  Goods.]— See  Trade. 

Disturbance  of  Market] — See  Market, 

Apprehended  Injury.]—  See  Nuisance. 

Nuisances.]— See  Nuisance. 

Corporation  changing  name  of  Streets.}— fl* 
Health. 

Conspiracy  to  molest  in  Trade.}— See  Tbadi 

User  of  Trade  Mark  or  Trade  Name.}-&t 
Trade. 

Publication  of  Letters.]— See  Letters. 

To  Prohibit  Meetings  of  Shareholders.}-^ 
Company. 

Restraining  Proceedings  on  Winding-**  •* 
Companies.] — See  Company. 

Restraining  Railway  from  Running  Trahw 
while  Purchase-Money  Unpaid.]— See  Railway. 


INJUET. 

S*«  NEGLIGENCE. 


993 


INNKEEPER— INSURANCE. 


994 


INLAND  REVENUE 


See  REVENUE. 


INNKEEPER. 

Lability  for  Negligence— Person  of  Guest.]— 
The  general  duty  of  an  innkeeper  to  take  proper 
cue  for  the  safety  of  his  guests  does  not  extend 
to  erery  room  in  his  house  at  all  hours  of  night 
or  day,  but  must  be  limited  to  those  places  into 
which  guests  may  be  reasonably  supposed  to  be 
likely  to  go,  in  a  reasonable  belief  that  they  are 
entitled  or  invited  to  do  so.  Walker  v.  Midland 
Railway,  55  L.  T.  439 ;  51  J.  P.  116— H.  L.  (E.) 

—  Property  of  Guest— Temporary  Refresh- 
Bent]— The  plaintiff  arrived  at  Carlisle  with 
the  intention  of  spending  the  night  at  the 
defendant's  hotel,  which  adjoined  the  railway 
station.  He  delivered  his  luggage  to  one  of  the 
porters  of  the  hotel,  but,  after  reading  a  telegram 
which  was  waiting  for  him,  decided  not  to  spend 
the  night  at  Carlisle,  and  went  into  the  coffee- 
room  to  order  some  refreshments.  He  was  not 
able  to  obtain  in  the  coffee-room  exactly  what  he 
required,  and  went  into  the  station  refreshment- 
room,  which  was  under  the  same  management  as 
the  hotel,  and  connected  with  it  by  a  covered 
passage.  Shortly  afterwards  he  went  out,  telling 
the  porter  to  lock  up  his  luggage,  and  it  was 
locked  up  in  a  room  near  the  refreshment-room. 
On  his  return  he  found  that  part  of  it  was  miss- 
ing :— Held,  that  at  the  time  of  the  loss  of  the 
plaintiff's  goods  there  was  no  evidence  of  the 
relation  of  landlord  and  guest  between  him  and 
the  defendants,  so  as  to  make  them  responsible. 
Strauss  v.  County  Hotel  and  Wine  Company,  12 
Q,  B.  D.  27  ;  53  L.  J.,  Q.  B.  25  ;  49  L.  T.  601  ; 
*2  W.  R.  170  ;  48  J.  P.  69— D. 

Usances.] — See  Intoxicating  Liquors. 


INNUENDO. 

See  DEFAMATION. 


INQUEST. 

See  CORONER. 


INQUISITION. 

To  assess  Compensation  for  Taking  Lands.  ]- 
See  Lands  Clauses  Act. 

Coroners.] — See  Coroner. 

Of  lunacy.]— See  Lunatic. 


INSANITY. 

See  LUNATIC. 


INSOLVENCY. 

See  BANKRUPTCY. 


INSPECTION. 

Of  Documents.] — See  Discovery. 
Of  Property.]— See  Practice. 


INSURANCE. 

I.  Life  and  Accident. 

1.  The  Contract— Conditions,  994. 

2.  Assignment  of  Policies,  998. 

3.  Premiums,  999. 

4.  Interest  of  Assured,  1001. 

5.  Evidence,  $c,  of  Death,  1003. 

6.  Life  Insurance  Companies,  1003. 

II.  Fire,  1005. 

III.  Marine. 

1.  Interest  of  Assured,  1009. 

2.  Duration  of  Risk,  1010. 

3.  Nature  of  BUk,  1012. 

4.  Concealment  of  Facts,  1013. 

5.  Warranties,  1014. 

6.  Losses,  1016. 

7.  Actions  on  Policy,  1018. 

8.  Mutual  Insurance  Associations^  1019. 


I.    LIFE  AND  ACCIDENT. 
1.  The  Contract— Conditions. 

Form  of  Proposal—"  Residence."] — In  a 
form  of  proposal  to  an  assurance  office  for  a 
policy  of  life  insurance,  the  residence  of  the 
proposer  was  stated  to  be  "191,  Great  Ancots- 
street,  Manchester."  The  proposer  was  at  the 
time  temporarily  staying  at  the  address  given, 


995 


INSURANCE— Life  and  Accident. 


996 


and  really  resided  in  Ireland,  whither  he  returned 
three  months  afterwards.  The  proposer  agreed 
that,  if  anything  contrary  to  the  truth  were 
stated  in  the  proposal,  the  policy  to  be  granted 
in  pursuance  thereof  should  be  absolutely  void  : 
— Held,  in  an  action  on  a  policy  issued  in  accord- 
ance with  the  proposal,  that  the  declaration  of 
the  assured  as  to  residence  was  not,  according  to 
the  true  construction  of  the  word  in  the  form  of 
proposal,  untrue  so  as  to  render  the  policy  void. 
Grogan  v.  London  and  Manchester  Industrial 
Assurance  Co.,  58  L.  T.  761 ;  50  J.  P.  134— D. 

Proposal  and  Acceptance— Material  Alteration 
of  Bisk  before  Tender  of  Premium.]— A  proposal 
was  made  to  an  insurance  company  for  an  in- 
surance on  the  life  of  the  proposer,  who  made, 
on  a  form  issued  by  the  company,  statements  as 
to  his  state  of  health  and  other  matters,  and  a 
declaration  that  the  statements  were  true,  and 
were  to  be  taken  as  the  basis  of  the  contract. 
The  proposal  was  accepted  at  a  specified  premium, 
but  upon  the  terms  that  no  insurance  should  take 
effect  till  the  premium  was  paid.  Before  tender 
of  the  premium  there  was  a  material  alteration 
in  the  state  of  the  health  of  the  proposer,  and 
the  company  refused  to  accept  the  premium  or 
to  issue  a  policy  : — Held,  that  the  nature  of  the 
risk  having  been  altered  at  the  time  of  the 
tender  of  the  premium,  there  was  no  contract 
binding  the  company  to  issue  a  policy.  Canning 
v.  Farquhar,  16  Q.  B.  D.  727  ;  55  L  J.,  Q.  B. 
225  ;  54  L.  T.  350 ;  34  W.  R.  423— C.  A. 

Quaere,  whether,  if  there  had  been  no  altera- 
tion in  the  risk,  the  company  would  have  been 
legally  entitled  to  refuse  to  accept  the  premium, 
and  to  issue  a  policy.    lb. 

Express  Warranty  of  Truth  of  Answers  — 
"Striotly  Temperate."]— A.  applied  to  an  in- 
surance office  to  effect  a  policy  on  his  life.  He 
received  a  printed  form  of  proposal  containing 
questions.  Among  these  was  the  following : 
Question  7  (a).  Are  you  temperate  in  your 
habits  ?  (b)  and  have  you  always  been  strictly 
so?  A.  answered,  (a)  "Temperate ;"  (b)  "  Yes." 
Subjoined  to  the  printed  questions  was  a  decla- 
ration, which  A.  signed,  to  the  effect  that  the 
foregoing  statements  were  true,  and  that  the 
assured  agreed  that  this  declaration  should  be 
the  basis  of  the  contract,  and  that  if  any  untrue 
averment,  Jcc.  was  made  the  policy  was  to  be 
absolutely  void,  and  all  moneys  received  as 
premium  forfeited.  The  policy  recited  the  above 
declaration  as  the  basis  of  the  contract.  After 
A.'s  decease  the  insurance  company  refused  pay- 
ment of  the  policy  on  the  ground  that  the  above- 
mentioned  answer  was  false  in  fact.  In  an  action 
on  the  policy  : — Held,  that  the  declaration  of  A., 
taken  in  connexion  with  the  policy,  constituted 
an  express  warranty  that  the  answer  to  Question 
7  was  true  in  fact ;  and  as  the  evidence  clearly 
proved  that  A.'s  averment  as  to  his  temperance 
was  untrue,  the  policy  was  absolutely  null  and 
void.  Thomson  v.  Wecms,  9  App.  Cas.  671 — 
H.  L.  (Sc.). 

Beterenee  to  Foreign  Law— Effect  of.]— A 
reference  to  foreign  law  in  an  English  contract 
does  not  incorporate  the  foreign  law,  but  merely 
affects  the  interpretation  of  the  contract.  Dever, 
Em  parte,  Su*e,  In  re,  18  Q.  B.  D.  660  ;  56  L.  J., 
Q.  B.  652—0.  A. 


Conditions  Precedent  binding  on  Representa- 
tive.]— A  policy  of  assurance  against  injury  and 
death  by  accident  after  reciting  that  A.,  therein- 
after called  the  assured,  was  desirous  of  effect- 
ing an  assurance,  witnessed  that  the  insurers 
accepted  the  risk,  subject  nevertheless  to  the 
several  provisions  thereinafter  contained,  and 
to  the  conditions  and  stipulations  indorsed  there- 
on which  were  to  be  conditions  precedent  to  the 
right  of  the  assured  to  sue  or  recover  there- 
under : — Held,  that  the  conditions  were  condi- 
tions precedent  to  the  right  not  only  of  the 
assured  but  of  his  legal  personal  representatives, 
to  recover  thereunder.  Cawley  v.  National  Em- 
ployers' Aasvrance  Association,  1  C.  k  E.  597— 
A.  L.  Smith,  J. 

Conditions— Death  aoeelerated  by  Disease  or 
Infirmity.] — One  of  the  conditions  provided  that 
no  claim  should  be  made  under  the  policy  in 
respect  of  any  injury,  unless  the  same  should  be 
occasioned  directly  or  solely  by  external  or 
material  causes  visibly  operating  upon  the 
person  of  the  assured,  whereof  proof  satisfactory 
to  the  insurers  should  be  furnished,  and  that  the 
policy  did  not  insure  against  death,  &c,  accele- 
rated or  promoted  by  any  disease  or  bodily  in- 
firmity, or  any  natural  cause  arising  within  the 
system  of  the  assured,  whether  accelerated  by 
accident  or  not.  A.  met  with  an  accident,  upon 
which  death  ensued,  but  death  would  not  hare 
ensued  had  he  not  at  the  time  of  the  accident 
been  suffering  from  gall-stones  : — Held,  that  the 
insurers  were  not  liable.    lb. 

"Within  the  United  Kingdom."] -A 

policy  of  insurance  covered  death  caused  by 
accident  happening  within  the  United  Kingdom. 
The  assured  was  accidentally  drowned  in  Jersey. 
In  an  action  on  the  policy  : — Held,  that  the 
accident  happened  within  the  United  Kingdom. 
Stoneham  v.  Ocean,  Railway,  and  General  Ac- 
cident Insurance  Company,  19  Q.  B.  D.  237;  57 
L.  T.  236  ;  35  W.  R.  716 ;  61  J.  P.  422— D. 

Notice  of  Accident  within  Seven  Bayi- 

Omission  to  give.] — A  policy  was  made  subject 
to  a  condition  that  in  case  of  fatal  accident 
notice  thereof  must  be  given  to  the  insurer* 
within  seven  days.  It  was  impossible  to  give 
notice  within  the  seven  days : — Held,  that  notice 
was  not  a  condition  precedent  to  the  right  to 
recover.    lb. 


Notice  of  Death— Medical  Beport-Ii- 


stantaneous  Death.]— -A  policy  of  insurance 
against  accident  was  made  subject  to  the  condi 
tion  inter  alia  that  in  the  event  of  any  accident 
to  the  assured  he,  or  his  representatives,  should 
give  notice  thereof  in  writing  to  the  company 
within  ten  days  after  its  occurrence,  stating  the 
number  of  the  policy,  nature  and  date  of  the 
injuries,  place  where,  and  manner  in  which  they 
were  received,  extent  of  disablement,  and  name, 
address,  and  occupation  of  the  person  injured, 
and  also  within  fourteen  days  of  the  accident, 
forward  to  the  head  office  a  written  report  from 
the  assured's  medical  attendant,  who  should  be 
a  duly  qualified  and  registered  medical  prac- 
titioner, of  the  facts  of  the  case,  and  nature  and 
extent  of  the  injuries  received  and  the  condition, 
provided,  that  unless  it  were  complied  with,  ss 
to  time  and  otherwise  (time  being  of  the  essence 
of  the  contract)  no  person  should  be  entitled  to 


997 


INSURANCE— Life  and  Accident. 


998 


claim  under  the  contract : — Held,  that  the  omis- 
sion to  give  notice  of  death  within  the  prescribed 
time,  even  when  death  was  instantaneously  caused 
bran  accident,  was  an  answer  to  a  claim  made 
upon  the  policy.  Gamble  v.  Accident  Assurance 
C*.  (It.  R.,  4  C.  L.  204)  followed.  Patton  v. 
Employers'  Liability  Assurance  Co.,  20  L.  R., 
Ir.  93-C.  P.  D. 

Held,  also,  that  it  was  not  necessary  that  the 
notice  should  be  driven  by  the  legal  personal  re- 
presentatives of  the  assured,  but  might  be  effec- 
tually given  by  any  person  appointed  by  the 
assured  for  the  purpose,  or  (per  Murphy,  J.)  by 
any  person  acting  on  behalf  of  the  persons  inte- 
rested in  the  policy.    lb. 

Held,  also,  that  any  excuse  for  not  forwarding 
the  medical  report  as,  e.  g.,  that  there  was  no  one 
in  medical  attendance  on  the  assured,  should  be 
specially  pleaded  and  proved,  when  the  company 
rely  on  the  condition.    lb. 

—  Against  Assignment.] — See  Turcan,  In 

w,  infra. 

—  Suicide  Clause—  Assignment.]  —See  City 
B**k  v.  Sovereign  Life  Assurance  Co.,  post,  col. 
W9. 

lailwiy  Passengers'  Assurance  Company — 
Arbitration— Stay  of  Proceedings.] — Sects.  3  and 
16  of  the  Railway  Passengers'  Assurance  Com- 
pany's Act,  1864,  provide  that  questions  of 
differences  arising  shall,  if  either  the  company 
or  the  persons  claiming  require  it,  be  referred  to 
arbitration.  By  s.  33,  where  an  action  has  been 
commenced,  the  court  or  a  judge.  "  upon  being 
satisfied  that  no  sufficient  reason  exists  why  the 
Batten  cannot  and  ought  not  to  be  referred  to 
arbitration,  and  that  the  company  were  at  the 
time  of  the  bringing  of  the  action  or  suit,  and 
•till  are,  ready  and  willing  to  concur  in  all  acts 
necessary  and  proper  for  causing  the  matters  to 
be  decided  by  arbitration,  may  make  an  order 
•taring  all  proceedings  in  the  action."  A  claim 
*aa  made  against  the  company,  which  they  dis- 
puted, hot  they  did  not  give  notice  before  the 
commencement  of  the  action  that  they  required 
to  have  the  question  referred  to  arbitration. 
After  an  action  had  been  commenced  the  com- 
pany took  oot  a  summons  to  stay  all  proceedings 
»  the i  action  : — Held,  that  as  the  company  had 
K*  given  notice  before  the  commencement  of 
toe  action  that  they  required  to  have  the  question 
referred  to  arbitration,  as.  3  and  16  did  not 
apply,  and  that,  under  the  circumstances  of  the 
ose,  the  court  were  not  satisfied  that  no 
anffldent  reason  existed  why  the  matters  could 
not  or  ought  not  to  be  referred  to  arbitration,  or 
that  the  company  were  at  the  beginning  of  the 
action  ready  and  willing  to  concur  in  all  acts 
■aesasnry  and  proper  for  causing  the  matters  to 
he  decided  by  arbitration,  and  therefore  no  order 
°aght  to  be  made  under  s.  33.  Fox  v.  Railway 
™**e*yeri  Assurance  Company.  62  L.  T.  672— 
C.A. 

loatt  Society —Death  of  Member  intestate— 
Jjyaaat  of  Death  Allowance  by  Committee— 
aaght  of  Administrator  to  recover  from  Payee.  1 
~*he  deceased,  a  member  of  an  unregistered 
hiendly  society,  had,  upon  making  his  applica- 
tion for  admission  to  the  society,  signed  a  declara- 
tion agreeing  to  be  bound  by  the  rules  of  the 
ttttety,  and  authorizing  the  deduction  from  his 
*Hes  of  the  sum  specified  in  the  rules  for 


securing  to  himself,  or  to  his  representatives  in 
case  of  his  death,  the  benefits  of  the  society. 
The  rule  relating  to  the  payment  of  death  allow- 
ances empowered  and  authorized  the  committee 
to  pay  the  allowance  to  such  person  or  persons 
as  in  their  discretion  they  might  think  fit ;  and 
it  further  provided  that  the  allowance  should 
be  paid  to  certain  specified  relatives  in  such 
proportions  as  the  committee  should  determine, 
unless  otherwise  bequeathed  by  will,  when  it 
was  to  be  paid  to  the  person  to  whom  it  had 
been  bequeathed  ;  that,  where  there  were  no 
surviving  relatives  and  no  special  bequest,  only 
the  funeral  expenses  should  be  defrayed  by  the 
society,  and  that  where  the  allowance  had  been 
once  paid  neither  the  committee  nor  the  society 
should  be  liable  to  any  further  claim  in  respect 
of  it  Upon  the  death  of  the  member  intestate 
the  society  paid  the  amount  of  the  death  allow- 
ance to  the  defendant,  his  sister.  The  plaintiff, 
as  administrator  of  the  deceased,  having  brought 
an  action  against  the  defendant  to  recover  the 
money  so  paid  to  her: — Held,  that  the  rule 
constituted  the  contract  between  the  member 
and  the  society  as  to  the  payment  of  the  money ; 
that  the  death  allowance  was  not  the  property 
of  the  member  during  his  life,  and  in  the 
absence  of  a  bequest  by  will  was  not  assets  for 
the  payment  of  his  debts,  and  that  therefore  the 
plaintiff  could  not  recover.  Ashby  v.  Costin, 
21  Q.  B.  D.  401 ;  67  L.  J.,  Q.  B.  491 ;  59  L.  T. 
224  ;  37  W.  R.  140 ;  53  J.  P.  69— D. 


2.  Assignment  of  Policies. 

Condition  against  Assignment  —  Beneficial 
Interest.] — A  policy  was  subject  to  a  condition 
that  it  should  "  not  be  assignable  in  any  case 
whatever,"  and  there  was  a  separate  proviso  that 
the  insurance  company  should  not  be  bound  to 
recognize  any  equitable  dealings  with  the 
policy  : — Held,  that  the  effect  of  the  condition 
against  assignment  was  merely  to  make  the 
policy  which  was  subject  to  it  non-assignable  at 
law  as  it  would  have  been  prior  to  the  Policies 
of  Assurance  Act,  1867.  and  did  not  prevent  a 
policy-holder  dealing  with  the  beneficial  iu teres t 
in  it  (e.g.,  by  a  declaration  of  trust),  or  a  court 
of  equity  from  enforcing  such  a  transaction. 
Tvrcan,  In  re,  40  Ch.  D.  5  ;  58  L.  J.,  Ch.  101  ; 
59  L.  T.  712  ;  37  W.  R.  70— C.  A. 

Assignment  of  Policy  Abroad  —  Lex  Loci] — 

The  plaintiff  sued  the  trustees  of  an  English  life 
assurance  company  as  assignee  from  her  husband 
of  a  policy  of  life  insurance  granted  by  the  com- 
pany. The  assignment  to  the  plaintiff  was  made 
in  Cape  Colony,  the  assignor  being  then  domiciled 
in  that  colony,  where  he  remained  till  his  death. 
By  the  law  of  Cape  Colony,  such  an  assignment 
was  void  by  reason  of  the  alleged  assignee  being 
the  wife  of  the  as%nor : — Held,  that  the  law 
of  Cape  Colony  applied  to  the  assignment  of  the 
policy>  and  therefore  that  the  defendants  were 
entitled  to  judgment.  Lee  v.  Abdy,  17  Q.  B.  D. 
309  ;  55  L.  T.  297  ;  34  W.  R.  653— D. 

Hotice  to  Company  —  Effeot  ol] — The  pro- 
visions of  30  fc  81  Vict.  c.  144.  s.  3,  to  the 
effect  that  on  the  assignment  of  a  policy  of 
insurance  a  prescribed  notice  shall  be  given,  and 
the  date  on  which  such  notice  shall  be  received 
shall  regulate  the  priority  of  all  claims  under 

K  K  2 


999 


INSURANCE— Life  and  Accident. 


1000 


the  assignment,  relate  only  to  the  liabilities  of 
the  insurance  office  to  the  assignees,  and  not  to 
the  rights  inter  se  of  persons  claiming  to  be 
interested  in  the  policy  moneys.  Newman  v. 
Newman,  28  Ch.  D.  674  ;  54  L.  J.,  Ch.  598  ; 
62  L.  T.  422  ;  83  W.  R.  505— North,  J. 

Assignee  for  Value— Suicide  Clause — Collateral 
Security— Marshalling  of  Securities.] — A  policy 
of  assurance  contained  a  condition  that,  if  the 
assured  should  die  by  his  own  hand  the  policy 
should  become  void,  and  all  moneys  paid  in 
respect  thereof  should  be  forfeited  to  the  com- 
pany. But  in  case  the  beneficial  interest  in  the 
policy  had  been  vested  in  any  other  person  for 
a  valuable  and  pecuniary  consideration,  the  policy 
should  remain  valid  to  the  extent  of  the  interest 
of  such  person,  subject  to  a  specified  notice  in 
writing  having  been  given  of  the  transaction 
transferring  the  interest.  The  assured  deposited 
the  policy  with  the  plaintiffs  to  secure  a  debt 
owing  from  his  firm  and  further  advances,  the 
deposit  being  accompanied  by  a  memorandum 
stating  that  the  policy  was  deposited  by  way  of 
equitable  mortgage  as  collateral  security.  The 
required  notice  was  given  to  the  assurance  com- 
pany, and  S.  subsequently  committed  suicide,  the 
plaintiffs  holding  at  the  time  of  his  death  other 
securities  for  the  debt  besides  the  policy : — Held, 
that  the  suicide  clause  was  undistinguishable 
from  that  which  was  under  decision  in  Solicitors* 
and  General  Life  Assurance  Company  v.  Lamb 
(10  L.  T.  160,  702),  and  that  the  plaintiffs  were 
entitled  to  be  paid  out  of  the  policy  moneys 
the  amount  of  the  debt  due  to  them  at  the  date 
of  the  death  of  S.  Held,  further,  that  notwith- 
standing that  the  estate  of  the  assured  might 
thereby  be  benefited,  the  assurance  company 
were  not  entitled  to  have  the  debt  paid,  either 

Erimarily  or  rateably,  out  of  the  other  securities 
eld  by  the  plaintiffs.  City  Bank  v.  Sovereign 
Life  Assurance  Company,  50  L.  T.  565  ;  32  W.  R. 
658 — Pearson,  J. 


3.  Premiums. 

Payment  by  Person  not  sole  Beneficial  Owner 
— Lien — Salvage.] — E.  mortgaged  a  policy  of 
life  assurance  to  F.,  and  afterwards  filed  a 
petition  for  liquidation.  Resolutions  of  the 
creditors  were  passed,  under  which  K.'s  friends 
were  to  pay  2s.  in  the  pound  on  the  unsecured 
debts,  and  the  trustee  was  to  assign  to  a  nominee 
of  the  friends  all  E.'s  property  except  the 
equities  of  redemption  in  the  securities  held  by 
secured  creditors.  The  terms  of  these  resolutions 
were  carried  out,  and  E.  obtained  his  discharge. 
Shortly  after  this,  in  1883,  E.  agreed  with  D., 
who  professed  to  be  F.'s  agent,  for  the  purchase 
of  F.  8  interest  in  the  policy,  but  no  such  pur- 
chase was  ever  carried  out.  Shortly  after  this 
agreement  D.  informed  E.  that  none  of  the 
incumbrancers  would  pay  the  premium  for  that 
year,  and  E.  paid  it  on  the  faith,  as  he  de- 
posed, of  his  interest  under  the  agreement. 
There  was  no  evidence  that  D.  had  any  authority 
to  enter  into  any  agreement  on  behalf  of  F.,  or 
that  F.  had  any  knowledge  of  the  contract,  or  of 
the  payment  by  E.  F.'s  representative,  Mrs.  F., 
brought  an  action  to  enforce  her  security,  and 
the  policy  was  sold  for  much  less  than  the 
amount  of  the  mortgage  debt : — Held,  that  E. 
was  entitled  to  be  repaid  out  of  the  proceeds  of 


sale  the  premiums  for  1883  which  he  had  paid, 
and  that  the  residue  must  be  paid  to  Mrs.  F. 
But  held,  on  appeal,  that  E.'s  payment  of  a 
premium  in  his  character  of  owner  of  the  equity 
of  redemption  could  not  give  him  a  lien  in 
priority  to  the  mortgage  debt ;  that  E.'s  belief 
that  he  had  a  valid  contract  for  purchase,  when 
he  had  not,  could  not  give  him  any  advantage  as 
regarded  the  premium,  there  being  nothing  to 
show  that  F.  knew  of  the  alleged  contract  or  of 
the  payment  of  the  premium  ;  that,  in  the  state 
of  the  evidence  no  request  from  F.  to  pay  the 
premium  could  be  inferred,  and  no  equity  could 
be  held  to  have  arisen  against  F.  on  the  ground 
of  acquiescence  or  lying  by ;  and  that  the  fact 
that  the  policy  had  been  preserved  by  E.'s  pay- 
ment did  not  give  him  a  right  to  have  the  pre- 
mium repaid  nor  give  him  a  lien  on  the  policy 
for  it ;  and  that  therefore,  the  whole  proceeds  of 
sale  must  be  paid  to  Mrs.  F.  without  deducting 
the  premium.     Semble,  the  maritime  doctrine  of 
salvage  has  no  application  to  the  payment  of 
premiums  on  a  policy.     West  v.  Reid  (2  Hare, 
249);  Burridge  v.  Row  (1  Y.  &  C.  Ch.  183); 
Shearman  v.  British  Empire  Mutual  Life  M* 
surance   Company  (14  L.  R.,  Eq.   4) ;  Gill  v. 
Downing  (17  L.  R.,  Eq.  316);  and  Aylwin  v. 
Witty  (30  L.  J.,  Ch.  860),  considered.    Fable 
v.   Scottish  Imperial  Insurance    Company,  34 
Ch.  D.  234  ;  66  L.  J.,  Ch.  707  ;  56  L.  T.  220 ;  35 
W.  R.  143— C.  A. 

Under  the  provisions  of  a  private  estate  act 
the  trustee  of  a  term  of  years  in  certain  settled 
estates  of  which  W.  had  been  tenant  for  life,  was 
bound  to  apply  the  rents  of  the  estates,  first,  in 
the  payment  from  time  to  time  of  the  interest 
upon  certain  incumbrances  existing  before  the 
passing  of  the  act,  and  subject  thereto  in  the 
payment  from  time  to  time  of  the  interest  on 
sums  to  be  raised  by  W.  by  mortgages  created 
under  the  powers  conferred  by  the  act,  and  of 
the  premiums  on  policies  of  life  assurance,  con- 
stituting the  collateral  security  for  the  repay- 
ment of  those  sums,  the  equity  of  redemption 
being  reserved  to  W.  The  rents  having  become 
insufficient,  the  trustee,  in  order  to  save  one  of 
the  policies  from  lapsing,  paid  a  premium  oat  of 
his  own  moneys.  He  did  this  without  any  re- 
quest from  the  mortgagee  or  from  the  owner  of 
the  equity  of  redemption  of  the  policy.  The 
life  insured  having  dropped,  and  the  proceeds  of 
the  policy  having  been  received  by  the  mort- 
gagee : — Held,  that  the  trustee  was  not  entitled 
to  any  lien  on  the  proceeds  in  respect  of  the 
premiums  which  he  had  paid,  he  not  being  a 
trustee  of  the  policy.  Winchilsea  {Earl)  Policf 
Trusts,  In  re,  39  Ch.  D.  168  ;  58  L.  J.,  Ch.  20; 
59  L.  T.  167  ;  37  W.  R.  77— North,  J. 

Bight  to  Repayment — Purchase  of  Reveni« 
set  aside.] — The  purchaser  of  a  contingent  rever- 
sionary interest  insured  the  life  of  the  vendor 
and  paid  premiums  for  some  years.  The  sale 
was  subsequently  set  aside  as  an  unconscionable 
bargain : — Held,  that  the  purchaser  was  not 
entitled  to  repayment  of  the  premiums.  Fry  v. 
Lane,  40  Ch.  D.  312  ;  58  L.  J.,  Ch.  113 ;  60  L.T. 
12  ;  37  W.  R.  135— Kay,  J. 

Commission — Mortgagor  and  Mortgages.]— 
The  plaintiff  mortgaged  her  life  interest  in  a 
fund  to  the  defendants,  it  being  part  of  the 
agreement  that  a  policy  .should  be  effected  on 
her  life,  and  the  premiums  be  secured  on  the 


1001 


INSURANCE— Life  and  Accident. 


1002 


mortgaged  property.  In  an  action  for  redemp- 
tion the  chief  clerk  found  that  1732.  19*.  Id., 
"  premiums  paid  on  policies,"  was  due  from  the 
plaintiff  to  the  defendants.  L.Y  a  solicitor  and 
Agent  to  all  the  parties,  paid  the  premiums  to 
the  insurance  offices,  receiving  from  them  5  per 
cent  commission.  On  summons  to  vary  the 
chief  clerk's  certificate  by  the  amount  of  the 
commission,  on  the  ground  that  the  "  premiums 
paid  on  policies  "  only  amounted  to  165Z.  5*. : — 
Held,  that  after  the  premiums  had  been  paid 
to  the  insurance  offices,  the  mortgagor  had  no 
interest  in  them.  The  insurance  offices  received 
the  premiums,  and  paid  the  commission  out  of 
them  to  their  own  agent.  Leete  v.  Wallace,  58 
L  T.  577— Kay,  J. 

Covenant   to   Pay  —  Bankruptcy  —  Proof  — 

Yalae.]— Where,  in  an  arrangement  matter,  a 
creditor  held  policies  of  insurance  which  the 
arranging  debtor  had  covenanted  to  keep  up  : — 
Held,  that  the  value  of  the  creditor's  interest  in 
the  covenant  was  the  sum  which  the  insurance 
company  would  accept  as  a  present  payment,  by 
way  of  commutation  of  the  annual  premiums,  to 
keep  the  policies  subsisting.  Bank  of  Ireland, 
Ex  parte,  8.,  In  re,  17  L.  R.,  Ir.  507— Bk. 

letorn  of— Wagering  Policy.]— See  next  case. 


unable  to  pay  the  premiums.  By  the  rules  of 
the  insurance  society  the  policy  could  be  ex- 
changed for  a  fully  paid-up  policy  of  smaller 
value,  and  thus  preserved  from  lapsing.  The 
wife  and  only  child  of  the  defendant  brought 
this  action,  claiming  the  appointment  of  a 
trustee  of  the  policy,  and  that  such  trustee  might 
be  authorised  to  exchange  the  policy  for  one 
fully  paid  up  :—  Held,  that  the  court  under  its 
general  jurisdiction  had  power  to  appoint  two 
trustees ;  and  judgment  was  given  to  that  effect, 
and  otherwise  as  claimed.  Schultze  v.  Schultze, 
56  L.  J.,  Ch.  356  ;  56  L.  T.  231— Stirling,  J. 

Joint  Tenancy.]— A  married  man  insured 


4.  Interest  of  Assured. 

Wagering  Policies — Betnrn  of  Premiums.] — 
J.  H.  effected  with  the  defendant  company  two 
policies  of  insurance  on  the  life  of  his  father, 
J.  H.,  in  which  he  had  no  insurable  interest. 
According  to  the  policies  the  premiums  were  to 
be  paid  weekly.  J.  H.,  the  son,  continued  to 
make  these  weekly  payments  for  some  years. 
J.  H.,  the  father,  had  at  first  no  knowledge  of 
the  insurances  effected  on  his  life  ;  but  when  he 
became  aware  of  them  he  objected  to  their 
being  continued,  and  gave  notice  to  that  effect 
to  the  company.  J.  H.,  the  son,  then  gave 
notice  to  the  defendants  that  the  policies  were 
at  an  end,  and  claimed  the  return  of  the  amount 
of  the  premiums.  The  defendants  refused  to 
pay,  and  J.  H.,  the  son,  brought  his  action  for 
their  recovery,  and  the  county  court  judge  gave 
judgment  for  the  plaintiff : — Held,  that  under 
the  circumstances  of  the  case  the  policies  were 
wagering  policies,  and  consequently  the  pre- 
miums paid  in  respect  of  them  could  not  be 
recovered.  Howard  v.  Refuge  Friendly  Society, 
hk  L.  T.  644— D. 

Benefit  of  Wife  and  Children— Appointment  of 
Trustees.] — A  petition  (presented  since  the 
coming  into  operation  of  the  Married  Women's 
Property  Act,  1SS2),  for  the  appointment  of 
trustees  of  the  proceeds  of  a  life  policy  effected 
by  a  husband,  under  the  provisions  of  the 
Married  Women's  Property  Act,  1870,  for  the 
bene6t  of  his  wife  and  children,  ought  to  be 
entitled  in  the  matter  of  the  act  of  1882. 
&mtafs  Policy  Trust,  In  re,  26  Ch.  D.  236  ; 
54  L.  J.,  Ch.  256  ;  32  W.  R.  701— Pearson,  J. 

Appointment  of  Trustees — Direction  to 

Trustee  to  exchange  Policy.]— The  defendant 
effected  a  policy  on  his  life  for  the  benefit  of 
his  wife  and  children  under  s.  10  of  the  Married 
▼omen's  Property  Act,  1870.  He  became 
bankrupt    and    mentally  deranged,    and    was 


his  life  under  a  policy  which,  after  reciting  that 
he  was  desirous  of  assuring  his  life  under  the  pro- 
visions of  the  Married  Women's  Property  Act, 
1870,  for  the  benefit  of  his  wife  and  children, 
stated  that  his  wife  and  children,  and  failing 
them,  his  heirs,  administrators,  or  assigns,  would 
be  entitled  after  his  death  to  the  policy  money  : 
— Held,  that  the  wife  and  children  took  the 
policy  money  as  joint  tenants.  Adam's  Policy 
Trusts,  In  re  (23  Ch.  1).  525),  not  followed. 
Ssyton,  In  re,  Scyton  v.  Suttcrthwaite,  34  Ch. 
D.  511  ;  56  L.  J.,  Ch.  775  ;  56  L.  T.  479  ;  5 
W.  R.  373— North,  J. 

Policy  in  Wife's  Name— Voluntary  Settlement 
of— Payment  of  Premiums.] — On  5th  November, 
1844,   a    policy  of    insurance  for   2,000/.  was 
effected  upon  the  life  and  in  the  name  of  B.,  the 
wife  of  A.     By  a  post-nuptial  settlement  dated 
27th    November,    1844,   reciting    that    B.   was 
desirous  of  making  provision  for  her  husband  and 
children,  and  that  A.  had  agreed  to  join  in  the 
deed  for  the  purpose  of  assuring  "all  his  interest, 
if  any,"  in  the  policy,  A.  and  B.  assigned  to  C. 
and  D.  the  policy  and  all  sums  payable  there- 
under upon  trust  to  invest  the  same  and  pay  the 
income  to  A.  and  his  assigns  during  his  life  and 
]  after  his  decease  to  divide  the  trust  funds  equally 
i  among  the  children  of  A.  and  B.    The  settle- 
I  ment  contained  no  power  of  revocation.    A.  pre- 
deceased  his  wife,  having  paid  all   premiums 
I  during  his  lifetime.     Upon  the  death  of  B.,  the 
I  question  arose  whether  the  policy  moneys  were 
subject  to  the  trusts  declared  by  the  settlement : 
—Held,  that  the  policy  was  intended  by  the 
husband  to  be  and  was  the  separate  property  of 
,  the  wife  at  the  date  of  settlement,  in  which  the 
l  husband  concurred  only  for  conformity  and  to 
bind  such  interest,  if  any,  as  he  had  ;  that  the 
settlement  was  valid  and  that  the  policy  moneys 
were  bound  by   the  trusts  of  the  settlement. 
Winn,  In  re,  Reed  v.   Winn,  57  L.  T.  382— 
Kay,  J. 

Contingent  Interest— Possibility— Interest  for 
Benefit  of  Wife.] — A  policy  of  insurance  on  the 
life  of  a  husband  for  the  benefit  of  his  wife  was, 
in  1876,  effected  with  an  insurance  company 
which  carried  on  business  at  New  York,  through 
their  branch  office  in  London.  The  application 
for  the  policy  was  made  by  him  on  behalf  of  his 
wife.  The  premiums  were  made  payable  in 
London.  By  the  policy  the  company  promised 
to  pay  the  amount  assured  to  the  wife  for  her 
sole  use,  if  living,  and,  if  she  were  not  living, 
to  the  children  of  the  husband,  or,  if  there 
should  be  no  such  children,  to  the  executors 
or  assigns  of  the  husband,  at  the  London  office. 
The  policy  also  provided  that,  on  the  completion 
of  a  period  of  ten  years  from  its  issue,  provided 


1008 


INSURANCE— Life  and  Accident. 


1004 


it  should  not  have  been  previously  terminated 
by  lapse  or  death,  the  legal  owner  should  have 
the  option  of  withdrawing  the  accumulated 
reserve  and  surplus  appropriated  by  the  com- 
pany to  the  policy.  The  husband  paid  the 
premiums  until  July,  1883,  when  he  filed  a 
liquidation  petition  under  the  Bankruptcy  Act, 
1869.  In  1884  he  obtained  his  discharge.  After 
1883  the  wife  paid  the  premiums  out  of  her 
separate  estate.  In  1866  the  wife  exercised  the 
right  of  withdrawal,  and  the  company  paid 
2,9597.  in  respect  of  the  policy : — Held,  that, 
even  if  the  sum  thus  paid  did  not  by  virtue  of 
the  policy  belong  to  the  wife  for  her  separate 
use,  the  husband's  contingent  interest  in  it  at  the 
time  when  he  obtained  his  discharge  was  a  mere 
possibility,  and  that,  consequently,  it  did  not 
pass  to  the  trustee  in  the  liquidation.  Dever, 
Ex  parte,  Suite,  In  re,  18  Q.  B.  D.  660 ;  56  L.  J., 
Q.  B.  552— C.  A. 

5.    Evidence,  etc.,  of  Death. 

Evidence  of  Death — Cestui  que  vie.]— Money 
was  payable  to  a  tenant  pur  autre  vie  under  a 
policy,  after  proof,  to  the  satisfaction  of  directors, 
of  the  cestui  que  vie.  An  order  was  made  under 
6  Anne,  c.  72,  that  the  cestui  que  vie  ought  to  be 
deemed  and  taken  to  be  dead  under  the  statute, 
and  the  remainderman  entered  : — Held,  that  the 
directors  might  reasonably  require  further  evi- 
dence of  the  death  of  the  cestui  que  vie.  Doyle 
v.  City  of  Glasgow  Life  Assurance  Company,  53 
L.  J.,  Ch.  527  ;  50  L.  T.  323  ;  32  W.  R.  476  ;  48 
J.  P.  374— North,  J. 

Presumption  of  Death.]— See  Evidence,  II. 

Notice  to  Insurance  Company.] — Where 


the  estate  of  a  person  whose  death  the  court  were 
asked  to  presume  consisted  in  part  of  a  policy  of 
assurance  on  his  life,  the  court  ordered  that 
notice  of  the  application  should  be  given  to  the 
insurance  company.  Barber,  In  Goods  of,  11  P. 
D.  78  ;  56  L.  T.  894  ;  35  W.  R.  80— Butt,  J. 

6.    Life  Insurance  Companies. 

Income  Tax — "Profits  and  Gains" — Bonuses 
to  Participating  Policy-holders.]— A  life  in- 
surance company  issued  "  participating  policies," 
according  to  the  terms  of  which  any  surplus 
which  existed  at  the  end  of  each  quinquennial 
period  in  the  hands  of  the  company,  after  pay- 
ment of  policies  falling  due  during  such 
period,  and  provision  fur  outstanding  liabilities, 
was  dealt  with  as  follows :  two-thirds  of  the 
surplus  went  to  the  policy-holders,  who  received 
payment  thereof  either  by  way  of  bonus  or 
abatement  of  premiums  ;  the  remaining  third  of 
the  surplus  went  to  the  company,  who  bore  the 
whole  expenses  of  the  business,  the  portion 
remaining  after  payment  of  expenses  constituting 
the  only  profit  available  for  division: — Held 
(by  Lords  Blackburn  and  Fitzgerald,  Lord 
Bramwell  diss.),  that  the  two-thirds  returned  to 
the  policy-holders  were  "  annual  profits  or 
gains  "  and  assessable  to  income  tax.  Last  v. 
London  Assurance  Corporation,  10  App.  Cas. 
438  ;  55  L.  J.,  Q.  B.  92  ;  53  L.  T.  634  ;  34  W.  R. 
233  ;  50  J.  P.  116— H.  L.  (K.). 

Where  a  life  insurance  company  carrying  on 
business  in  New  York  and  Great  Britain 
issued  participating  policies  as  well  as  non- 
participating  policies  in  Great  Britain  to  members 


of  the  company,  and  remitted  the  net  amount 
received  to  New  York : —  Held,  that  the 
premium  income  derived  from  participating 
as  well  as  non-participating  policies  was  a 
"  profit  or  gain  "  liable  to  be  assessed  to  income 
tax.  Last  v.  London  Assurance  Corporation 
(10  App.  Cas.  438)  followed.  Styles  v.  Km 
York  Life  Insurance  Company,  61  J.  P.  487 
— D. 


it 


Profits  and  Gains  "—Interest  ariibig 
from  Investments.] — The  amount  of  interest 
arising  from  investments  made  by  an  insurance 
company  for  the  purpose  of  carrying  on  their 
business  on  which  income  tax  bad  been  deducted 
at  ite  source  amounted  to  more  than  the  profits  of 
the  company  for  the  year  of  assessment,  but  the 
company  had  during  the  year  received  interest 
from  investments  on  which  income  tax  had  not 
been  deducted  at  its  source  : — Held,  that  under 
s.  102  of  the  Income  Tax  Act,  1842  (5  &  6  Vict 
c.  35).  and  sched.  D.  of  s.  2  of  the  Income  Tax 
Act,  1853  (16  &  17  Yict.  c.  34),  the  company 
were  liable  to  pay  income  tax  on  the  interest 
from  which  income  tax  bad  not  been  deducted 
at  its  source.  Last  v.  London  Assuramet 
Corporation  (10  App.  Cas.  438)  considered. 
Clerical,  Medical,  and  General  Life  As*ura*t$ 
Society  v.  Carter,  21  Q.  B.  D.  389  ;  57  L.  J.,  Q. 
B.  614;  59  L.  T.  827;  37  W.  R.  124-D. 
Affirmed  22  Q.  B.  D.  444  ;  58  L.  J.,  Q.  B.  224; 
37  W.  R.  346  ;  53  J.  P.  276— C.  A. 

Deposit  of  Fund  in  Court — Payment  out]— 
Where  a  petition  is  presented  under  the  Life 
Assurance  Companies  Acts,  1870, 1871,  and  1672, 
for  payment  out  of  Court  to  the  company  of  the 
statutory  deposit  of  20,000/.,  the  petition  most 
contain  a  statement  of  rule  6  of  the  Board  of 
Trade  Rules,  1872,  which  provides  for  payment 
out  of  the  deposit  money  so  soon  as  it  is  proved 
to  the  satisfaction  of  the  court  that  the  life 
assurance  fund  of  the  company,  in  respect  of 
which  the  deposit  was  made,  amounts  to  the 
sum  of  40,0002.  Le  PUnix,  In  re,  58  L.  T.  512 
— Chitty,  J. 

Deed  of  Settlement— Power  to  alter— Sale  of 
Business.] — The  deed  of  settlement  of  an  unin- 
corporated life  assurance  comp  tny  contained  no 
provision  for  the  sale  or  transfer  of  its  business. 
But  it  provided  that  the  proprietors  might  alter, 
amend  or  repeal  the  laws,  regulations  and  pro- 
visions of  the  company.  Resolutions  were 
passed  with  due  formalities  to  take  power  to 
sell  and  transfer  the  business  : — Held,  that  i 
sale  and  transfer  of  the  business  was  intra  vires. 
Argus  Life  Assurance  Company,  In  re,  39  Cb. 
D.  571  ;  58  L.  J.,  Ch.  166  ;  59  L.  T.  689  ;  37  W.  fc 
215— North,  J. 

Transfer  of  Business — Confirmation  by  Court- 
Time  for  sending  Notice.] — When  a  petition  ii 
presented  by  a  life  assurance  company  under  the 
Life  Assurance  Companies  Act,  1870,  for  the 
confirmation  of  a  conditional  agreement  to 
transfer  its  business  to  another  company,  s.  14 
of  the  act  will  have  been  sufficiently  complied 
with  if  all  the  notices  (required  by  that  section 
to  be  given  to  each  policy-holder  of  the  trans- 
ferred company)  are  given  before  the  hearing 
(though  some  of  them  may  have  been  given  after 
the  presentation)  of  the  petition.  Briton  Life 
Association,  In  re,  56  L.  J.,  Ch.  988 ;  35  W.  K. 
803— North,  J. 


J 


1006 


INSURANCE— Fir*. 


1006 


Winding  up — Scheme  for  Reduction  of  Con- 
trasts.]— On  a  patiiion  for  winding  up  an 
insolvent  life  assurance  company,  it  was  sug- 
gested that  there  should  be  an  order  for  the  re- 
daction of  the  amount  of  the  contracts  of  the 
company  under  a.  22  of  the  Life  Assurance 
Companies  Act,  1870,  instead  of  a  winding- 
up  order.  The  matter  was  referred  to 
chambers,  so  that  steps  might  be  taken,  by  hold- 
ing meetings  or  otherwise,  to  ascertain  what 
coarse  ought  to  be  adopted,  and  the  petition 
directed  to  stand  over  generally  for  the  meetings 
to  be  held,  the  meetings  of  the  policy-holders 
and  shareholders  to  be  separate.  Briton 
Medical  and  General  Life  Assurance  Company, 
1%  re,  54  L.  T.  14— Kay,  J. 


IL    FIRE. 

Payment  of  Premium— Bisk  when  Commenc- 
iag.]— In  a  policy  of  fire  insurance,  in  the 
absence  of  a  provision  that  the  policy  is  not  to 
attach  until  payment  of  the  premium,  such  a 
provision  will  not  be  implied.  Kelly  v.  London 
ami  Staffordshire  Fire  Insurance  Company,  1 
C.  k  R  47— Mathew,  J. 

Agent  to  Eeceive.J — A  policy  contained 

the  following  clause: — "  It  is  part  of  this  contract 
that  any  person  other  than  the  assured  who  may 
have  procured  this  insurance  to  be  taken  by  this 
company,  shall  be  deemed  to  be  the  agent  of  the 
assured  and  not  of  this  company,  under  any  cir- 
cumstances whatever,  or  in  any  transaction 
relating  to  this  insurance."  A  broker  who 
effected  the  insurance  for  the  assured,  and 
received  the  premium,  bad  frequently  effected 
other  insurances  with  the  company,  deducting 
his  commission  from  the  premiums  and  handing 
over  the  balance : — Held,  that  he  was  the  agent 
of  the  company  to  receive  the  premium.    lb. 

Specific  Appropriation.] — Where  the  plaintiffs 
being  agents  for  an  insurance  office  remitted  to 
it  lOOi.  "  for  premiums,"  and  it  appeared  that 
the  100/.  was  to  the  knowledge  of  the  office  in 
excess  of  what  they  owed  as  agents,  and  that 
the  terms  on  which  certain  lapsed  policies 
should  be  renewed  by  the  office  for  their  benefit 
had  been  ascertained  by  consent: — Held,  that 
although  there  was  not  in  the  office  any  specific 
appropriation  of  any  part  of  the  100/.  to  the 
payment  of  the  premiums  ou  the  lapsed  policies, 
jet  that  it  must  be  taken  to  have  been  re- 
ceived on  account  thereof,  and  that  from. the 
date  of  receipt  there  was  a  good  contract  for  the 
renewal  of  the  old  insurance.  Kirkpatrick  v. 
&mth  Australian  Insurance  Co,,  11  App.  Cas. 
177— P.  C. 

Option  to  Reinstate  or  Eeplace  Property 
Daiaagod  or  Destroyed.] — A  condition  in  a  policy 
of  insurance  against  ore  that,  "  the  company 
may,  if  it  think  fit,  reinstate  or  replace  property 
damaged  or  destroyed  instead  of  paying  the 
amount  of  the  loss  or  damage/1  entitles  the  com- 
pany to  exercise  an  option,  and  in  the  event  of 
the  property  insured  being  wholly  destroyed,  to 
reinstate  it  by  other  property  which  is  equivalent 
to  that  which  has  been  destroyed ;  or  in  the 
event  of  the  property  insured  being  damaged 
hot  not  destroyed,  to  reinstate  it — that  is,  to 


repair  and  put  it,  not  in  the  exact  place,  but  in 
the  same  state  in  which  it  was  before  the  fire 
occurred,  instead  of  paying  the  amount  of  the 
loss  or  damage.  Anaerson  v.  Commercial  Union 
Assurance  Co.,  55  L.  J.,  Q.  B.  146  ;  34  W.  R.  189 
— C.  A. 

Latent  Ambiguity  in  Policy  —  Evidence  — 
Question  for  Jury.] — In  an  action  upon  a  policy 
of  fire  insurance,  if  the  evidence  discloses  a  latent 
ambiguity  in  the  policy  so  that  it  becomes 
necessary  to  go  into  the  consideration  of  other 
documents,  and  to  resort  to  parol  evidence  to 
solve  that  ambiguity,  it  ceases  to  be  merely  a 
question  for  the  court  on  the  construction  of  the 
instrument,  and  raises  a  question  of  fact  which 
must  be  determined  by  the  jury.  Hordem  v. 
Commercial  Union  Assurance  Company,  56  L.  J., 
P.  C.  78  ;  56  L.  T.  240— P.  C. 

Condition  Precedent — Proviso  against  Suing 
before  Arbitration.] — In  an  action  on  a  fire 
policy  the  defendant  pleaded  that  the  policy  was 
made  subject  to  a  condition  that,  if  any  difference 
should  arise  in  the  adjustment  of  a  loss,  the 
amount  to  be  paid  should  be  submitted  to  arbi- 
tration, and  the  insured  should  not  be  entitled  to 
commence  or  maintain  any  action  upon  the 
policy  until  the  amount  of  the  loss  should  have 
been  referred  and  determined  as  therein  pro- 
vided, and  then  only  for  the  amount  so  deter- 
mined;  that  a  difference  had  arisen,  and  the 
amount  had  not  been  referred  or  determined  : — 
Held,  that  the  determination  of  the  amount  by 
arbitration  was  a  condition  precedent  to  the 
right  to  recover  on  the  policy,  and  the  defence 
was  an  answer  to  the  action.  Collins  v.  Looks 
(4  App.  Cas.  674)  distinguished.  Viney  v.  Bia- 
nold  or  Norwich  Union,  20  Q.  B.  D.  172  ;  57  L.  J., 
Q.  B.  82  ;  58  L.  T.  26  ;  36  W.  R.  479— D. 

Average  Condition — Sub-tenant  Insuring  — 
Covenant  to  Repair — Laches.] — A.  being  owner 
of  a  house  granted  a  lease  to  G.,  containing  a 
covenant  by  the  tenant  to  repair,  but  not  a 
covenant  to  insure.  A.  insured  the  premises 
with  the  defendant  company  in  the  sum  of 
1,000/.,  and  G.  also  insured  them  with  another 
company  in  the  sum  of  1,100/.  A.'s  policy  was 
subject,  amongst  others,  to  the  usual  average 
condition,  viz.,  that  if  at  the  time  of  any  loss 
or  damage  by  fire  happening  to  the  insured  pro- 
perty, there  should  be  any  other  subsisting  in- 
surance, whether  effected  by  the  insured  or  any 
other  person  "  covering  the  same  property,"  the 
defendant  company  should  not  be  liable  to  pay 
or  contribute  more  than  its  rateable  proportion 
of  such  loss  or  damage.  The  premises  being 
destroyed  by  fire,  G.  was  paid  upon  his  policy 
625/.,  but  did  not  apply  the  same  in  reinstating 
the  premises,  and  subsequently  became  bank- 
rupt. In  an  action  by  A.  on  the  policy  effected 
with  the  defendants,  they  relied  in  their  defence 
on  the  following  points— (1),  upon  the  condi- 
tion as  exempting  them  from  liability  save  as 
to  62/.,  which  they  admitted  to  be  due  as  their 
apportionment  of  the  loss  ;  (2),  on  A.'s  neglect 
and  laches  in  not  compelling  G.  to  repair  the 
premises,  as  disentitling  A.  to  recover  from  the 
defendants  more  than  the  said  sum  of  62/. : 
— Held,  that  neither  defence  could  be  sustained 
"  Property"  in  such  a  condition  means  the  estate 
of  the  insurer  in  the  premises,  not  the  actual 


1007 


INSURANCE— Fire. 


1008 


building.  Andrews  v.  Patriotio  Assurance  Co.. 
18L.R.,Ir.35o—  Ex.D. 

Condition — Lois  occasioned  by  "  Ineendiarif  m  " 
— Fire  spreading  from  adjoining  Premises.] — 

Goods  in  a  house  were  insured  against  fire  by  a 
policy  containing  a  condition  u  that  it  did  not 
coyer  any  loss  or  damage  occasioned  by,  or  in 
consequence  of,  incendiarism."  While  the  policy 
was  subsisting,  adjoining  premises  were  set  on 
fire  by  an  incendiary,  for  whose  act  the  policy- 
holder was  admittedly  not  responsible  ;  and  the 
fire  having  spread  to  the  house  containing  the 
insured  goods,  they  were  destroyed  : — Held,  that 
the  word  "  incendiarism  "  in  the  policy  included 
any  act  of  incendiarism  wherever  committed 
which  directly  caused  the  loss;  that  in  the 
absence  of  evidence  pointing  to  any  other  cause, 
the  act  of  the  incendiary  must  be  assumed  to  be 
the  direct  cause  of  the  loss,  and  that  therefore 
the  insurance  company  was  not  liable.  Walker 
v.  London  and  Provincial  Insurance  Company, 
22  L.  R.,  lr.  572— Ex.  D. 

Claim  by  postponed  Bondholder — Payment  to 
prior  Bondholders  by  other  Insurers  of  sufficient 
Sum  to  reinstate — Bent  of  Mortgaged  Premises.] 

— The  pursuers  having  a  heritable  security  by 
bond  on  certain  premises  insured  them  against  fire 
in  the  defender  s  office  for  900J.  Prior  securities 
had  been  given  by  the  owner  upon  the  same 
premises  to  other  creditors,  and  those  creditors 
had  insured  in  other  offices.  The  premises  having 
been  in  part  destroyed  by  fire,  the  prior  incum- 
brancers recovered  from  and  were  paid  by  the 
offices  in  which  thev  were  insured  an  amount 
sufficient  for  the  re-instatement  of  the  premises, 
and  for  the  payment  of  the  rent  during  the 
period  of  re-instatement,  but  the  premises  were 
not  in  fact  re-instated.  It  appeared  that  imme- 
diately before  the  date  of  the  fire  the  value  of 
the  premises  was  sufficient  to  cover  the  prior 
bonds  and  that  of  the  pursuers,  but  in  conse- 
quence of  the  fire  the  value  of  the  premises  was 
so  reduced  that  they  were  not  sufficient  to  meet 
the  balance  remaining  due  to  the  prior  creditors, 
and  the  pursuers'  bond  was  left  entirely  un- 
covered : — Held,  that  the  pursuers  were  entitled, 
notwithstanding  the  amount  paid  to  the  other 
creditors,  to  recover  to  the  full  extent  of  their 
loss,  but  that  the  pursuers  were  not  entitled  to 
recover  anything  in  respect  of  the  loss  of  rent  of 
the  premises  after  they  had  been  damaged  by 
fire.  Westminster  Fire  Office  v.  Glasgow  Provi- 
dent Investment  Society,  13  App.  Cas.  699  ; 
69  L.  T.  641— H.  L.  (Sc). 

Semble,  that  14  Geo.  3,  c.  78,  s.  83,  relating 
to  the  application  of  insurance  money  on  houses 
destroyed  by  fire,  does  not  extend  to  Scotland. 
lb.,  per  the  Earl  of  Selborne  and  Lord  Watson. 

Assignment  of  Policy — Validity.] — A  trader 
insured  his  stock  in  trade  and  other  effects. 
These  were  destroyed  by  fire.  He  assigned  the 
policies  to  trustees  on  trust  to  pay  and  divide  the 
monies  received  thereunder  among  all  his  cre- 
ditors rateably,  and  to  pay  the  balance,  if  any, 
to  himself : — Held,  that  the  assignment  was  not 
void  under  13  Eliz.  c.  5,  at  the  suit  of  a  creditor 
whose  debt  was  under  507.  Green  v.  Brand,  I 
C.  &  E.  410— Lopes,  J. 

44  Policy  "— What  is.] — Any  contract  of  insur- 


ance comes  within  the  word  "  policy,"  and  there 
is  no  statutory  or  formal  document  necessary  to 
make  a  contract  of  insurance.  If  a  contract  of 
insurance  is  created  by  any  binding  means,  that 
is  a  "  policy"  to  all  intents  and  purposes.  Nor- 
wich JSqui  table  Fire  Assurance  Society,  In  re, 
57  L.  T.  541— Kay,  J. 

Guarantee  Business  and  Treaty  Business— 
Ultra  Vires— Company  in  Liquidation.]— A  fire 
insurance  society  being  an  unincorporated  as- 
sociation, had  powers  of  giving  to,  or  taking 
from  other  offices  policies  by  way  of  guarantee 
for  the  purpose  of  dividing  the  risk  of  insurance, 
and  also  under  their  powers  entered  into  treaties 
with  other  companies  appointing  them  their 
agents  in  foreign  lands,  and  agreeing  to  accept 
and  enter  upon  the  risk  of  one-eighth  of  every 
fire  insurance  policy  of  such  companies  in  force 
at  the  date  of  the  treaty,  or  effected  or  re- 
newed after  that  date,  and  agreed  to  be  on 
all  risks  simultaneously  with  the  other  com- 
panies, the  other  companies  agreeing  to  pay  a 
proportion  of  the  premiums,  20  per  cent  com- 
mission to  be  allowed  on  such  premiums  to  the 
agent  for  the  expenses  of  conducting  the  agency. 
The  fire  insurance  society  having  gone  into 
liquidation,  the  chief  clerk  allowed  the  claim  of 
another  company  for  sums  due  to  them  in  re- 
spect of  guarantee  and  treaty  business.  On 
summons  by  the  liquidator  to  vary  the  certifi- 
cate : — Held,  that  guarantee  business  was  in- 
surance business  contemplated  by  the  deed  of 
settlement,  and  within  the  powers  of  the  society ; 
that  the  treaty  agreements  did  not  constitute 
an  amalgamation  between  the  contracting  com- 
panies, nor  a  partnership  either  inter  se  or  as 
regarded  third  persons,  but  were  agreements  of 
agency  :  the  society  having  had  the  benefit  of 
these  agreements,  the  burden  of  proof  was  upon 
them  to  show  that  the  agreements  were  invalid; 
that  the  treaty  business  was  insurance  busi- 
ness, being  guarantee  business  carried  on 
with  a  very  unlimited  faith  in  the  agent;  it 
was  a  re-insurance  contract  more  wide  and  less 
prudent  than  an  ordinary  contract  of  re-insur- 
ance, but  was  within  the  powers  of  the  society, 
and  that  the  directors  had  by  acquiescence 
ratified  the  acts  of  the  manager  of  the  agency 
department.    lb. 


Limitation   of  Liability—  Constrnetrw 


Notice.] — In  consequence  of  a  decision  that  the 
N.  society  (now  in  course  of  being  wound  up) 
had  not  been  acting  ultra  vires  in  entering  into 
"  treaty  "  agreements,  and  that  the  R.  company 
were  entitled  to  prove  for  their  claim  in  respectof 
a  transaction  of  that  nature,  the  official  liquidator 
of  the  N.  society  applied  by  summons  for  an 
order  that  no  call  should  be  made  in  respect  of 
such  claim  upon  any  of  the  contributories  of  the 
N.  society  who  had  paid  up  the  full  amount  of 
their  shares,  nor  upon  any  of  such  contributories 
bevond  the  amount  unpaid  of  their  shares  >— 
Held,  that  on   the  face  of   the   contracts  no 
limitation  of  liability  was   expressed,  neither 
could  it  be  inferred  by  intendment  of  law ;  and 
that  the  doctrine  of  constructive  notice  could 
not  be  extended  to   cover  such  a  case  as  the 
present : — Held,  also,  that  the  shareholders  in 
the  N.  society  were  liable  for  the  full  amount  of 
the  claim;  and  that  not  only  was  the  capital 
stock  of  the  N.  society  liable  for  those  sums,  but 


J 


1009 


INSURANCE— Marine. 


1010 


that  the  liability  was  one  which,  until  those 
nuns  were  paid,  must  be  without  limit.  Nortoich 
Equitable  Fire  Assurance  Society,  In  re, 
58  L.  T.  35— Kay,  J. 


III.    MARINE. 

1.    Interest  of  Absubed. 

Duty  of  the  Court]— It  is  the  duty  of  the  Court 
always  to  lean  in  favour  of  an  insurable  interest, 
if  possible,  for  it  seems  to  me  that  after  under- 
writers have  received  the  premium,  the  objection 
that  there  was  no  insurable  interest  is  often,  as 
nearly  as  possible,  a  technical  objection,  and  one 
which  has  no  real  merit,  certainly  not  as  between 
the  assured  and  the  insurer.  Stock  v.  Inglis, 
12  Q.  B.  D.  564  ;  63  L.  J.,  Q.  B.  356  ;  51  L.  T. 
449— Per  Brett,  M.  B. 

Goods  at  Purchasers'  Bilk— Sale  of  Goods 
"t  o.  b."]— D.  sold  to  B.  200  tons  of  German 
sugar,  "f.  o.  b.  Hamburg ;  payment  by  cash  in 
London  in  exchange  for  bill  of  lading ; "  the 
price  to  be  variable  according  to  the  percentage 
of  saccharine  matter,  which  was  not  to  exceed  or 
fall  short  of  certain  limits.  B.  resold  to  the 
respondent  the  same  quantity  at  an  increased 
price,  but  otherwise  upon  similar  terms.  D. 
also  sold  to  the  respondent  200  tons  upon  similar 
terms.  To  fulfil  these  contracts  390  tons  (being 
ten  tons  short)  were  shipped  in  bags  on  one 
vessel  at  Hamburg  for  Bristol,  no  bags  being  set 
apart  for  one  contract  more  than  the  other.  Each 
hag  was  marked  with  its  percentage  of  saccha- 
rine matter,  and  bills  of  lading  with  marks 
corresponding  to  the  bags  were  sent  to  D.  to  be 
retained  till  payment  in  accordance  with  the 
contracts.  The  respondent  was  insured  in 
floating  policies  "  upon  any  kind  of  goods  and 
merchandises  "  between  Hamburg  and  Bristol, 
and  duly  declared  in  respect  of  this  cargo.  The 
«hip  sailed  from  Hamburg  for  Bristol  and  was 
lest.  After  receiving  news  of  the  loss,  D.  allo- 
cated 2.000  bags,  or  200  tons,  to  B.'s  contract, 
and  1,900  bags,  or  190  tons,  to  the  other  con- 
tract. In  an  action  upon  the  policies  : — Held, 
that  the  sales  being  "f.  o.  b.  Hamburg,"  the 
sugar  was  at  the  respondent's  risk  after  ship- 
ment; that  he  had  an  insurable  interest  in  it, 
*nd  that  the  underwriters  were  liable,  Inglis 
v.  8Uvkt  10  App.  Cas.  263  ;  54  L.  J.,  Q.  B.  582  ; 
*2  L.  T.  821  ;  33  W.  R.  877  ;  5  Asp.  M.  C.  422— 
H.  L.  (E.) 

Xo-iasuron — Extent  of  Interest.]— See  Uzielli 
t.  Boston  Marine  Insurance  Company,  post, 
«L  1017. 

Mortgagees  —  Insurance  against  Absolute 
Total  Lots— Payment  off,  ]— The  mortgagees  of  a 
•nip  agreed  with  the  mortgagors  to  effect  an  in- 
rarance  on  the  ship  at  the  mortgagors'  expense, 
the  policy  to  be  held  by  them  as  part  of  their 
•ecurity.  After  the  ship  had  sailed,  the  mortgagees 
tffected  an  insurance  against  absolute  total  loss 
<«1t.  On  the  voyage  the  ship  was  driven  ashore 
in  a  gale,  and  having  become  a  constructive  total 
loss,  notice  of  abandonment  was  given  by  the 
mortgagees  to  the  underwriters.  The  mortgagors 
immediately  gave  notice  that  they  would  look  to 
tie  mortgagees  as  if  they  were  their  under- 
writers for  a  full  insurance,  and  recovered  from 


them  the  full  value  of  the  ship.  The  ship  re- 
mained for  two  months  exposed  to  the  perils 
of  the  sea,  when  she  became  a  complete  wreck, 
and  was  then  sold  without  prejudice  to  the 
rights  of  the  parties.  After  the  sale,  but  before 
this  action,  the  mortgage  was  paid  off  : — Held, 
in  an  action  by  the  mortgagees  against  the 
underwriters  claiming  for  an  absolute  total  loss, 
that  the  mortgagees,  though  their  mortgage 
had  been  paid  off,  had  an  insurable  interest  in 
the  ship,  tnc  mortgagors  having  ceded  to  them 
their  rights  under  the  policy  when  they  were 
paid  the  full  valuo  of  tne  ship.  Levy  v.  Mer- 
chants Marine  Insurance  Company,  52  L.  T. 
263  ;  1  C.  &  B.  474  ;  5  Asp.  M.  C.  407— 
Mathew,  J. 

Purchasers  of  Goods  also  Charterers.]— Where 

the  charterers  of  a  vessel  were  also  the  pur- 
chasers of  a  cargo  of  wheat  to  be  shipped  on 
board,  and  the  master  of  the  vessel  from  time 
to  time  received  delivery  from  the  vendors : — 
Held,  that  such  delivery  from  time  to  time  was 
a  delivery  to  the  purchasers,  that  it  vested  in 
them  a  right  of  possession  and  property,  and 
that,  consequently,  they  had  an  insurable  inte- 
rest in  such  wheat  as  had  been  so  delivered. 
Anderson  v.  Morice  (1  App.  Cas.  713),  dis- 
tinguished ;  Oxen  dale  v.  Wether  ell  (9  B.  &  C. 
387),  approved.  Colonial  Insurance  Company  of 
Neio  Zealand  v.  Adelaide  Marine  Insurance 
Company.  12  App.  Cas.  128  ;  56  L.  J.,  P.  C.  19 ; 
56  L.  T.  173  ;  35  W.  R.  636  ;  6  Asp.  M.  C.  94— 
P.  C. 

Advances  on  Ship—"  Full  interest  admitted."] 

— A  policy  insuring  cash  advances  on  a  shjp  is 
within  19  Geo.  2,  c.  37,  s.  1.  Such  a  policy 
containing  the  term  "  full  interest  admitted  "  is 
avoided  by  that  statute.  Smith  v.  Beynolds  (1 
H.  &  N.  221)  ;  and  Be  Mattos  v.  North  (3  L.  R., 
Ex.  185).  followed.  Berridge  v.  Man  On  In- 
surance Company,  18  Q.  B.  D.  346  ;  66  L.  J.,  Q. 
B.  223  ;  56  L.  T.  375 ;  35  W.  R.  343  ;  6  Asp. 
M.  C.  104— C.  A. 


2.  Duration  op  Risk. 


tt 


Whilst  in  Port  "—Fairway  of  Navigable 
Channel.] — A  ship  insured  for  a  voyage  to  any 
port  of  discharge  in  the  United  Kingdom,  "and 
whilst  in  j>ort  during  thirty  days  after  arrival," 
arrived  at  Greenock,  discharged  her  cargo,  and 
was  placed  in  a  dock  for  repairs.  Within  thirty 
days  after  her  arrival  she  left  the  dock  in  ballast 
for  the  port  of  Glasgow,  in  tow  of  a  steam-tug, 
to  proceed  on  a  new  voyage,  and  had  reached 
the  fairway  of  the  channel  of  the  Clyde,  her 
stern  being  about  500  feet  distant  from  the 
harbour  works,  when  she  was  capsized  by  a 
sudden  gust  of  wind,  and  sustained  damage  : — 
Held,  that  the  ship  at  the  time  of  the  accident 
was  not  "in  port"  within  the  meaning  of  the 
jx)licy,  and  that  the  underwriters  were  not  liable. 
"  Garstcn"  Sailing  Ship  Company  v.  Hickic  (15 
Q.  B.  D.  580)  discussed.  Hunter  v.  Northern 
Marine  Insurance  Company,  13  App.  Cas.  717 — 
H.  L.  (Sc.) 

44  At  and  from  Port."]— Where  the  plaintiffs 
proposed  to  insure  a  wheat  cargo  "at  and  from  " 
port,  and  the  defendants,  "  in  accordance  with 
your    written    request,"  granted  an  insurance 


1011 


INSURANCE— Marine. 


1012 


"from  "  port  : — Held,  that  there  was  a  complete 
contract  to  insure  "  at  and  from  "  port.  Colonial 
Insurance  Company  of  New  Zealand  v.  Adelaide 
Marine  Insurance  Company,  supra. 

Commencement  of  Bisk— Shipment  of  Portion.] 

— Where  a  contract  of  insurance  related  to 
wheat  cargo  then  on  board  or  to  be  shipped  in 
the  "  D.  of  8.'* : — Held,  that  the  risk  commenced 
as  soon   as  any  portion  thereof  was  on  board. 

Bisk  of  Craft  till  Goods  landed— Tranship- 
ment from  Lighters   into  export  Vessel.] — A 

policy  of  insurance  on  goods  which  includes1' all 
risk  of  craft  until  the  goods  are  discharged  and 
safely  landed  "  does  not  cover  the  risk  to  the 
goods  while  waiting  on  lighters  at  the  port  of 
delivery  for  transhipment  into  an  export  vessel. 
Hvulder  v.  Merchants  Marine  Insurance  Com- 
pany, 17  Q.  B.  D.  354  ;  55  L.  J.,  Q.  B.  420  ;  55 
L.  T.  244  ;  34  W.  R.  673  ;  6  Asp.  M.  C.  12— 
G.  A. 

Pumps  engaged  "  at  the  Wreck."] — A  policy 
of  insurance  was  effected  on  salvage  pumps  in- 
sured "from  the  30th  of  December,  1882.  to  the 
12th  of  January,  1883, .  . .  whilst  engaged  in  sal- 
vage operations  at  the  wreck  of  the  C,"  "  in- 
cluding all  risk  whilst  being  conveyed  from  B.  to 

and 

on  board  the  wreck."  It  was  shewn  that  the 
or 

C.  was  floated  by  means  of  the  pumps  which 

were  brought  from  B.,  and  placed  on  board  her. 

and  that  she  was  kept  afloat  by  the  pumps,  and 

that  she  partly  steamed  and  partly  was  towed 

by  another  vessel  for  a  distance  of  nearly  forty 

miles,  until  she  had  almost   reached  B.,  the 

nearest  port  of  safety,  when  she  sank  in  deep 

water,  with  the  salvage  pumps  on  board,  on  the 

4th  of  January,  1883  : — Held,  that  the  loss  was 

not  covered  by  the  policy.    Dijiori  v.  Adams,  53 

L.  J.,  Q.  B.  437  ;  1  C.  k  E.  228— Cave,  J. 

Time  Policy— Chartered  Freight.]— The  plain- 
tiffs were  the  owners  of  a  vessel  which  they 
chartered  on  certain  terms  as  regards  payment 
of  freight  for  six  months  from  the  21st  of 
March,  1881,  with  the  option  to  the  charterers 
of  extending  the  time  for  a  period  of  three  or 
six  months.  A  clause  in  the  charter-party 
provided  that  in  the  event  of  loss  of  time  by 
collision,  whereby  the  vessel  was  rendered 
incapable  of  proceeding  for  more  than  forty- 
eight  hours,  payment  of  hire  was  to  cease  until 
such  time  as  she  was  again  in  an  efficient  state 
to  resume  her  voyage.  On  the  4th  of  April, 
1881,  the  plaintiffs  insured  against  loss  of 
freight  with  the  defendant  "at  and  from  and 
for  and  during  the  space  of  six  calendar  months 
from  the  15th  of  April  to  the  14th  of  October, 
1881."  the  defendant  to  pay  only  loss  of  hire 
which  might  arise  under  the  clause  in  the 
charty-party  "for  accidents  occurring  between 
the  15th  of  April  and  the  15th  of  October." 
On  the  27th  of  June,  1881,  ihc  vessel,  while  on 
a  voyage,  struck  something  soft  with  her 
bottom,  but  was  able  to  proceed  on  her  voyage, 
and  it  was  not  until  the  18th  of  November, 
when  she  arrived  at  Liverpool,  that  it  was  dis- 
covered that  she  required  considerable  repairs, 
owing  to  damage  admittedly  caused  by  the  acci- 
dent in  June.  The  charterers,  who  had  exer- 
cised their  option  of   continuing  the   charter 


until  the  21st  of  December,  thereupon  gave 
notice  to  the  plaintiffs  discontinuing  the  hire 
until  the  vessel  was  in  a  fit  state  to  resume  em- 
ployment, which  she  never  was  until  the  end  of 
December : — Held,  that  as  the  policy  was  a  time 
policy,  the  loss  insured  against  must  happen 
during  the  period  covered  by  the  policy ;  and 
that  the  defendant's  liability  being  confined  to 
loss  of  chartered  freight  between  the  15th  of 
April  and  the  15th  of  October,  could  not  be 
extended  so  as  to  include  loss  of  hire  which  only 
occurred  after  the  expiration  of  that  time. 
Hough  v.  Head,  55  L.  J.,  Q.  8.  43 ;  63  L.  T.  809; 
34  W.  R.  160  ;  5  Asp.  M.  C.  605—C.  A. 


3.  Natuee  of  Risk. 


tt 


Ferili  of  the  aeaa  and  all  other  Perils,"  Ac- 
Donkey-engine,  Injury  to.]— A  steamer  was  in- 
sured by  a  time  policy  in  the  ordinary  form  on 
the  ship  and  her  machinery,  including  the  don- 
key-engine. For  the  purposes  of  navigation  the 
donkey-engine  was  being  used  in  pumping  water 
into  the  main  boilers,  when  owing  to  a  val?e 
being  closed  which  ought  to  have  been  kept  open 
water  was  forced  into  and  split  open  the  air- 
chamber  of  the  donkey-pump.  The  closing  of 
the  valve  was  either  accidental  or  due  to  the 
negligence  of  an  engineer  and  was  not  due  to 
ordinary  wear  and  tear : — Held,  that  whether 
the  injury  occurred  through  negligence  or  acci- 
dentally without  negligence,  it  was  not  covered 
by  the  policy,  such  a  loss  not  falling  under  the 
words  "  perils  of  the  seas,"  &c,  nor  under  the 
general  words  "  all  other  perils,  losses,  and  mis- 
fortunes that  have  or  shall  come  to  the  hurt, 
detriment  or  damage  of  the  subject-matter  of 
insurance."  West  India  and  Panama  TelrgrapL 
Company  v.  Home  and  Colonial  Marine  Insnr* 
ance  Company  (6  Q.  B.  D.  51),  disapproved. 
Thames  and  Mersey  Marine  Insurance  Compaq 
v.  Hamilton,  12  App.  Cas.  484  ;  66  L.  J.,  Q.  B. 
626 ;  57  L.  T.  695  ;  36  W.  R.  337  ;  6  Asp.  H.  C. 
200— H.  L.  (B.) 

"  Improper  Navigation  of  Ship  "— Negligeae* 
—Damage  to  Cargo— Injuffieiently-elosed  Port] 
— By  the  articles  of  a  mutual  assurance  associa- 
tion the  members  agreed  to  indemnify  each  other 
against  losses,  damages,  and  expenses  arising 
from  or  occasioned  by  any  loss  or  damage  of  or 
to  any  goods  or  merchandize  caused  by  "im- 
proper navigation  of  the  ship  carrying  the 
goods,"  for  which  any  such  member  might  be 
liable.  A  cargo  of  wheat  was  shipped  on  board 
a  vessel  belonging  to  the  plaintiffs,  who  were 
members  of  the  association.  During  the  loading 
of  the  cargo  an  opening  or  port  in  the  sideof  the 
vessel  was  by  the  negligence  of  persons  employed 
by  the  plaintiffs  insufficiently  secured,  so  that 
during  the  voyage  water  leaked  in  and  damaged 
the  wheat  in  the  lower  hold,  and  the  plaintiffs  be- 
came liable  to  pay  and  paid  compensation  to  the 
owners  of  the  cargo.  The  leak  did  not  hinder 
or  impede  the  navigation  of  the  vessel  in  the 
course  of  her  voyage : — Held,  that  this  was  a 
damage  arising  from  "  improper  navigation  of 
the  ship,"  within  the  articles  of  association,  for 
which  the  plaintiffs  were  entitled  to  recover. 
Carmiohael  v.  Liverpool  Sailing  Skip  OtMtrt* 
Association,  19  Q.  B.  D.  242  ;  56  L.  J.,  Q.  & 
428  ;  67  L.  T.  550 ;  36  W.  K.  793  ;  6  Asp.  U.  C 
184— C.  A. 


1018 


INSURANCE— Marine. 


1014 


4.    Concealment  of  Facts. 

Craft  Bilk— Employment  of  lightermen  with 
lestrieted  Liability— Notice.]— On  policies  of 
marine  insurance  on  goods,  which  included  risks 
on  crafts  and  lighters,  underwriters  to  the  know- 
ledge of  the  plaintiffs  charged  a  higher  rate  of 
premium  where  the  insurance  was  with  no  re- 
course against  lightermen  (which  meant  where 
the  lighterage  was  done  on  the  terms  that  the 
liability  of  the  lightermen  was  to  be  less  than 
that  of  common  carriers,  namely,  for  negligence 
only),  than  they  charged  where  there  was  such 
recourse,  and  the  liability  of  the  lightermen  was 
to  be  that  of  common  carriers.  The  plaintiffs 
effected  with  the  defendant,  a  Lloyd's  under- 
writer, a  policy  of  marine  insurance  on  goods 
which  included  risk  on  craft  and  lighters,  and 
was  not  with  no  recourse  against  lightermen. 
At  the  time  of  effecting  such  policy  the  plaintiffs 
had  an  arrangement  with  one  H.,  by  which  he 
was  to  do  all  the  plaintiffs'  lighterage  on  the 
terras  that  he  was  only  to  be  liable  for  negli- 
gence :— Held,  that  if  the  plaintiffs  intended 
that  the  goods  so  insured  should  be  landed  under 
rach  arrangement  with  H.,  it  was  a  fact  which 
a  prudent  and  experienced  underwriter  would 
take  into  consideration  in  estimating  the 
premium,  and  that  therefore  a  jury  would  be 
justified  in  finding  that  the  non-communication 
of  it  to  the  defendant  was  the  concealment  of  a 
material  fact  which  vitiated  the  policy.  A  mere 
disclosure  of  the  existence  of  such  arrangement 
to  the  defendants'  solicitor  is  not  notice  of  it  to 
the  defendant.  Tate  v.  Hyslop,  15  Q.  B.  D.  368  ; 
M  LJ.,  Q.  B.  592  ;  53  L.  T.  581 ;  5  Asp.  M.  C. 
487-C.  A. 

Vame  of  Ship  uncertain — Usage  at  Lloyd's.] 
—Where  an  assured  expects,  but  is  not  certain, 
that  goods  will  come  by  a  particular  ship,  the 
same  of  such  ship  is  not  a  material  fact,  the  non- 
disclosure of  which  prevents  the  policy  from 
attaching  ;  nor  in  such  a  case  is  there  any  usage 
of  underwriters  at  Lloyd's  compelling  the  assured 
to  disclose  it.  Knight  v.  Cotesworth,  1  C.  &  E.  48 
— Mathew,  J. 

Concealment  by  Agent  through  whom  Policy 
■et  effected.] — The  plaintiffs  instructed  a  broker 
to  re-insure  an  overdue  ship.  Whilst  acting  for 
the  plaintiffs  the  broker  received  information 
material  to  the  risk,  but  did  not  communicate  it 
to  them,  and  the  plaintiffs  effected  a  re-insurance 
for  800/.  through  the  broker's  London  agents. 
Afterwards  the  plaintiffs  effected  a  re-insurance 
for  700/.,  loet  or  not  lost,  through  another  broker. 
The  ship  had  in  fact  been  lost  some  days  before 
the  plaintiffs  tried  to  re-insure,  but  neither  the 
plaintiffs  nor  the  last-named  broker  knew  it,  and 
both  he  and  the  plaintiffs  acted  throughout  in 
food  faith  : — Held,  that  the  knowledge  of  the 
fast  broker  was  not  the  knowledge  of  the  plain- 
tiffs, and  that  the  plaintiffs  were  entitled  to 
recover  upon  the  policy  for  700/.  Fitzherbert  v. 
Mather  (1  T.  R.  12),  Gladstone  v.  King  (1  M.  & 
8.36),  Striblev  v.  Imperial  Marine  Insurance 
Company  (1  Q.  B.  D.  507),  and  Proudfoot  v. 
Mmtefeore  (2  L.  R.,  Q.  B.  511),  commented  on. 
Blackburn  v.  Vigor*,  12  App.  Cas.  531  ;  57 
U  Jn  Q.  B.  114  ;  57  L.  T.  730  ;  36  W.  R.  449  ;  6 
Asp.  M.  C.  216— H.  L.  (E.). 

the  plaintiffs,  underwriters  in  Glasgow,  em- 
ployed there  a  firm  of  insurance  brokers  to  re- 


insure a  ship  which  was  overdue.  The  brokers 
received  information  tending  to  show  that  the 
ship,  as  was  the  fact,  was  lost.  Without  com- 
municating  this  information  to  the  plaintiffs 
they  telegraphed  in  the  plaintiffs'  name  to  their 
own  London  agents,  stating  the  rate  of  insurance 
premium  which  the  plaintiffs  were  prepared  to 
pay.  Communications  followed  between  the 
plaintiffs  and  the  London  agents,  and  the  Lon- 
don agents,  through  a  firm  of  London  insurance 
brokers,  effected  a  policy  of  re-insurance  at  a 
higher  rate  of  premium,  which  policy  was  under- 
written by  the  defendant : — Held,  that  the  policy 
was  void  on  the  ground  of  concealment  of 
material  facts  by  the  agents  of  the  assured. 
Blackburn  v.  Vigor*  (supra)  considered.  Black- 
burn v.  Haslam,  21  Q.  B.  D.  144  ;  57  L.  J.,  Q.  B. 
479 ;  59  L.  T.  407  ;  36  W.  R.  855— D. 

5.  Warranties. 

Time  Policy— Negative  Words— Custom  of 
Merchants.]— A  time  policy  of  marine  insurance 
on  A.'s  ship,  from  the  29th  of  May,  1878.  to  the 
28th  of  May,  1879,  contained  the  words  "  war- 
ranted no  St.  Lawrence  between  the  1st  of 
October  and  the  1st  of  April."  The  vessel  was 
lost  on  the  voyage  home.  The  underwriters 
refused  A.'s  claim  for  a  total  loss  on  the  ground 
of  breach  of  warranty,  inasmuch  as  the  vessel 
had  navigated  in  the  Gulf  of  St.  Lawrence 
during  the  prescribed  period.  A.  contended  that 
the  above  words  referred  exclusively  to  the  River 
St.  Lawrence.  Admittedly  no  general  custom 
of  merchants  could  be  proved ;  but  the  facta 
established  that  the  great  river  which  discharges 
the  waters  of  the  North  American  lakes,  and  the 
gulf  into  which  it  flows,  both  bear  the  name  of 
"  St.  Lawrence  "  ;  that  the  navigation  of  both, 
though  of  the  gulf  in  a  less  degree  than  of  the 
river,  was  within  the  prohibited  period  dan- 
gerous : — Held,  that  the  evidence  disclosed  no 
ambiguity  or  uncertainty  sufficient  to  prevent 
the  application  of  the  ordinary  rules  of  con- 
struction ;  and  according  to  those  rules  the 
whole  St.  Lawrence  navigation,  both  gulf  and 
river,  is  within  the  fair  and  natural  meaning  of 
these  negative  words,  and  therefore  prohibited 
during  the  months  in  question.  Birrell  v. 
Dryer,  9  App.  Cas.  345  ;  51  L.  T.  130  ;  5  Asp. 
M.  C.  267— H.  L.  (Be.). 

Free  from  Capture  and  Seizure— Barratry.  ]— 
In  a  time  policy  of  marine  insurance  on  ship 
the  ordinary  perils  insured  against  (including 
14  barratry  of  the  master")  were  enumerated,  and 
the  ship  was  warranted  "  free  from  capture  and 
seizure,  and  the  consequences  of  any  attempts 
thereat."  In  consequence  of  the  barratrous  act 
of  the  master  in  smuggling,  the  ship  was  seized 
by  Spanish  revenue  officers,  and  proceedings 
were  taken  to  procure  her  condemnation  and 
confiscation.  In  an  action  on  the  policy  to 
recover  expenses  incurred  by  the  owner  in 
obtaining  her  release  :— Held,  that  the  loss  must 
be  imputed  to  "  capture  and  seizure,1'  and  not  to 
the  barratry  of  the  master,  and  that  the  under- 
writer was  not  liable.  Cory  v.  Burr,  8  App. 
Cas.  393  ;  52  L.  J.,  Q.  B.  657 ;  49  L.  T.  78 ;  31 
W.  R.  894  ;  5  Asp.  M.  C.  109— H.  L.  (E.). 

"  Free  from  Average  under  3  per  cent,  unless 
general "  —  Time  Policy  —  losses  on  separata 
Voyages.] — In  a  valued  time-policy  of  marine 


1015 


INSURANCE— Marine. 


1016 


insurance  the  ahip  and  freight  were  warranted 
free  from  average  under  3  per  cent.,  unless 
general,  or  the  ship  be  stranded,  sunk,  or  burned. 
The  ship  made  several  voyages  during  the  period 
insured,  and  incurred  particular  average  losses. 
Such  losses  on  any  one  voyage  did  not  amount 
to  3  per  cent.,  but  the  total  of  all  the  losses  on 
all  the  voyages  exceeded  3  per  cent.  In  an 
action  by  the  assured  on  the  policy  : — Held,  that 
the  plaintiffs  were  not  entitled  to  recover,  for 
although  the  separate  losses  on  each  voyage 
could  be  added  together,  yet  the  losses  occurring 
on  distinct  and  separate  voyages  could  not  be 
added  together  so  as  to  bring  the  amount  of  the 
losses  up  to  3  per  cent.  Stewart  v.  Merchant 
Marine  Insurance  Company,  16  Q.  B.  D.  619  ; 
65  L.  J.,  Q.  B.  81  ;  53  L.  T.  892  ;  34  W.  R.  208  ; 
5  Asp.  M.  C.  506— C.  A. 


General  Average  and  Particular  Average 


not  to  be  added  together.] — Under  a  policy  of 
insurance  covering  all  losses  not  recoverable 
under  a  policy  of  insurance  containing  the  clause 
"  warranted  free  from  average  under  three  per 
cent.,  unless  general,  or  the  ship  is  stranded, 
sunk,  or  burnt,"  the  insured  are  entitled  to 
recover  where  the  particular  average  loss  is  less 
than  three  per  cent.,  although  if  added  to  the 
general  average  loss  it  would  be  more  than  three 
per  cent.,  if  the  ship  be  nut  stranded,  sunk,  or 
burnt.  Price  v.  "  A  1  "  Ships'  Small  Damage 
Insurance  Company,  57  L.  J.,  Q.  B.  459 — 
Cave,  J.  Affirmed  22  Q.  B.  D.  580  ;  58  L.  J.,  Q. 
B.  269  ;  37  W.  K.  566— C.  A. 


Particular  Average  Loss,  Mode  of  ascer- 


taining. ] — A  time  policy  on  ship  contained  the 
warranty  "  free  from  average  under  3  per  cent." 
During  a  voyage  covered  by  the  policy  the  ship 
sustained  (without  its  being  discovered)  a  frac- 
ture of  her  stern-post  owing  to  perils  of  the  sea, 
being  a  particular  average  loss  within  the  policy. 
The  voyage  having  been  completed  and  the  cargo 
delivered,  the  ship  was  put  into  dry  dock  for  the 
purpose  only  of  being  cleaned,  scraped,  and 
painted,  being  in  such  a  state  that  no  prudent 
owner  would  have  put  to  sea  again  without 
having  her  cleaned  and  scraped.  When  the  ship 
was  put  into  dry  dock  the  injury  was  for  the  first 
time  discovered,  and  the  necessary  repairs  were 
then  effected,  and  the  ship  was  discharged  from 
dry  dock  on  the  eighth  day,  repaired,  cleaned, 
scraped,  and  painted.  Had  she  required  nothing 
but  cleaning,  scraping,  and  painting,  she  might 
have  been  discharged  on  the  evening  of  the  third 
day.  The  repairs  alone,  without  cleaning,  &c, 
would  have  taken  the  whole  eight  days.  If  the 
whole  or  half  of  the  dock  dues  for  the  first  three 
days  ought  to  be  charged  against  the  under- 
writers in  account,  there  was  a  particular  average 
loss  exceeding  3  per  cent.  If  the  cost  of  the 
repairs  plus  the  dock  charges  for  the  last  five 
days  were  alone  to  be  charged  against  the  under- 
writers, there  was  not  a  particular  average  loss 
of  3  per  cent.  If  the  dock  charges  for  the  first 
three  days  ought  to  be  attributed  partly  to  the 
repairs  and  partly  to  the  cleaning,  &c,  then  (so 
far  as  the  apportionment  was  a  question  of  fact) 
it  was  to  be  taken  that  one-half  of  those  charges 
should  be  attributed  to  each  purpose : — Held, 
that  although  a  contract  of  marine  insurance  is 
a  contract  of  indemnity,  and  though  the  result 
would  be  that  the  shipowners  would  be  relieved 


of  part  of  the  dock  charges  which  they  would 
otherwise  have  had  to  pay  themselves,  they  were 
entitled  to  have  the  dock  charges  for  the  first 
three  days  apportioned  between  the  repairs  on 
the  one  hand  and  the  cleaning,  &c,  on  the  other ; 
that  the  apportionment  should  be  one-half  to' 
each  purpose,  and  that  there  had  therefore  been 
a  particular  average  loss  exceeding  3  per  cent 
Marine  Insurance  Company  v.  China  Tram- 
pacific  Steamship  Company,  11  App.  Cas.  573; 
56  L.  J.,  Q.  B.  100 ;  55  L.  T.  491 ;  35  W.  R.  169 ; 
6  Asp.  M.  C.  68— H.  L.  (E.). 


6.  Losses. 
Warranties.] — See  supra. 

General  Average — Expenses  of  re-shipping 
Cargo.] — A  ship  on  a  voyage  having  sprung  a 
dangerous  leak,  the  captain,  acting  justifiably 
for  the  safety  of  the  whole  adventure,  put  into 
a  port  of  refuge  to  repair.  In  port  the  cargo 
was  reasonably,  and  with  a  view  to  the  common 
safety  of  ship,  cargo,  and  freight,  landed  in 
order  to  repair  the  ship.  The  ship  was  repaired, 
the  cargo  reloaded,  and  the  voyage  completed:— 
Held,  that  the  cargo-owners  were  not  charge- 
able with  a  general  average  contribution  in  re- 
ppect  of  the  expenses  of  reshipping  the  cargo. 
Atwood  v.  Sellar  (4  Q.  B.  D.  342  ;  5  Q.  B.  D. 
286)  discussed.  Svendsen  v.  Wallace*  10  ippt 
Cas.  404  ;  64  L.  J.,  Q.  B.  497  ;  52  L.  T.  901 ;  34 
W.  R.  369  ;  5  Asp.  M.  C.  453— H.  L.  (E.). 

Actual  Total  Loss— Sale  of  Ship  by  Court— 
Proceeds   less   than    Salvage — Derelict.]— To 

constitute  a  total  loss  within  the  meaning  of  * 
policy  of  marine  insurance  it  is  not  necessary 
that  a  ship  should  be  actually  annihilated  or 
destroyed.  If  it  is  lost  to  the  owner  by  an 
adverse  valid  and  legal  transfer  of  his  right  of 
property  and?  possession  to  a  purchaser  by  sale 
under  decree  of  a  court  of  competent  jurisdiction 
in  consequence  of  a  peril  insured  against,  it  is  as 
much  a  total  loss  as  if  it  had  been  totally 
annihilated.  Cossman  v.  West,  13  App.  Cas.  160; 
57  L.  J.,  P.  C.  17  ;  58  L.  T.  122  ;  6  Asp.  M.  C. 
233— P.  C. 

Where  a  ship  had  been  deserted  by  her  master 
and  crew,  having  been  previously  placed  bj 
them  in  a  sinking  condition,  but  had  been 
subsequently  taken  possession  of  by  salvors, 
towed  into  port,  and  there  sold  together  with 
the  cargo,  by  order  of  the  Admiralty  Court,  for 
less  than  the  actual  cost  of  the  salvage  services 
— Held,  in  actions  upon  policies  on  the  ship  and 
freight  respectively,  that,  assuming  the  posses- 
sion by  salvors  of  a  derelict  vessel  to  be  only  a 
constructive  total  loss,  the  subsequent  sale  con- 
stituted an  actual  total  loss  of  both  ship  and 
cargo.    lb. 

Constructive— Continuous  Perils.]— The 

mortgageesof  ashipagreed  witli  the  mortgagors  to 
effect  an  insurance  on  the  ship  at  the  mortgagors' 
expense,  the  policy  to  be  held  by  them  as  part  of 
their  security.  After  the  ship  had  sailed,  the 
mortgagees  effected  an  insurance  against  absolute 
total  loss  only.  On  the  voyage  the  ship  was 
driven  ashore  in  a  gale,  and  having  become  a 
constructive  total  loss,  notice  of  abandonment 
was  given  by  the  mortgagees  to  the  underwriters. 


1017 


IN  SURANCE— Marine. 


1018 


The  mortgagors  immediately  gave  notice  that 
they  would  look  to  the  mortgagees  as  if  they 
were  their  underwriters  for  a  full  insurance,  and 
recovered  from  them  the  full  value  of  the  ship. 
The  ship  remained  for  two  months  exposed  tu 
the  perils  of  the  sea,  when  she  became  a  complete 
wreck,  and  was  then  sold  without  prejudice  to 
the  rights  of  the  parties.  After  tne  sale,  but 
before  this  action,  the  mortgage  was  paid  off  : — 
Held,  in  an  action  by  the  mortgagees  against  the 
underwriters  claiming  for  an  absolute  total  loss, 
that  as  the  ship  when  sold  had  become  an  absolute 
total  loss  from  perils  which  were  continuous, 
the  plaintiffs  were  entitled  to  recover.  Levy  v. 
Merchant*  Marine  Insurance  Company,  52 
L.  T.263  ;  1  C.  &  E.  474  ;  5  Asp.  M.  C.  407— 
Mathew,  J. 

Constructive  Total  Loss— Botice  of  Abandon- 
asnt— BeuLTuranee.] — Upon  a  constructive  total 
loss  happening  to  the  ship  insured,  notice  of 
abandonment  need  not  be  given  to  the  under- 
writers of  a  policy  of  reinsurance.  The  owners 
of  a  ship  insured  her  for  twelve  months  in  an 
ordinary  Lloyd's  policy,  which  contained  a  suing 
and  labouring  clause.  The  underwriters  of  the 
Lloyd's  policy  reinsured  themselves  with  a 
French  company  which  reinsured  itself  with  the 
defendants.  The  policy  underwritten  for  the 
French  company  by  the  defendants  was  for 
1,0002. ;  bound  them  to  pay  the  sum  that  might 
be  paid  on  the  original  policy ;  was  to  cover  the 
risk  of  total  loss  only,  and  contained  a  suing  and 
labouring  clause.  Whilst  the  policy  was  in  force, 
the  ship  went  ashore  and  was  much  damaged. 
Her  owners  gave  notice  of  abandonment  to  the 
underwriters  of  the  Lloyd's  policy,  but  notice  of 
abandonment  was  not  given  to  the  defendants ; 
the  underwriters  of  the  ship  ultimately  settled 
with  her  owners  at  88  per  cent.  They  expended 
more  than  5,0002.  in  floating  the  ship,  and  sold 
her  to  a  builder  who  repaired  her  at  a  cost  of 
9,000/.,  and  resold  her  for  11,2002.  The  cost  of 
floating  the  ship  (after  deducting  the  price  paid 
by  the  shipbuilders)  being  added  to  the  88  per 
cent,  represented  a  loss  of  112  per  cent.  In  an 
action  by  the  French  company  as  reinsurers 
against  the  defendants  : — Held,  that  a  con- 
structive total  loss  had  occurred,  and  that  as  the 
defendants  had  bound  themselves  to  pay  as 
might  be  paid  on  the  original  policy,  they  were 
liable  to  the  extent  of  1,0002. ;  but  that  they 
could  not  be  held  liable  for  more,  as  the  under- 
writers of  the  Lloyd's  policy  were  not  the 
** factors,  servants, or  assigns"  of  the  plaintiffs 
within  the  meaning  of  the  suing  and  labouring 
clause,  and  that  the  defendants  were  not  liable, 
at  least  by  virtue  of  that  clause,  for  any  part  of 
the  expenses  incurred  in  floating  the  ship.  Uziclli 
v.  Boston  Marine  Insurance  Company,  15  Q.  B.  D. 
11 ;  54  L.  J.,  Q.  B.  142  ;  52  L.  T.  787  ;  33  W.  R. 
393 ;  6  Asp.  M.  C.  405— C.  A. 

Owner  altering  Obsolete  Ship  at  less  Cost 
iuttad  of  Beinstating.l— A  ship,  insured  on  a 
time  policy,  had  above  her  main  deck  a  saloon 
deck  for  passengers.  During  the  time  covered 
by  the  policy  the  saloon  deck  was  destroyed  by 
fire.  At  the  time  of  the  fire  the  ship  was  engaged 
in  carrying  cargo,  being  obsolete  as  a  passenger 
ship  and  useless  for  passenger  traffic.  After  the 
expiration  of  the  policy  the  ship  was  converted 
into  a  cargo-carrying  ship,  and  the  siloon  deck 
for  passengers  was  not  reinstated.    The  cost  of 


converting  the  ship  was  less  than  the  cost  of  the 
reinstatement  of  the  saloon  deck  would  have 
been.  The  ship,  after  the  alteration,  was  as 
valuable  for  sale  or  use  as  she  was  before  the 
accident.  In  an  action  by  the  shipowners 
against  the  underwriters,  to  recover  the  cost  of 
reinstatement  of  the  saloon  deck : — Held,  that 
as  the  shipowners  were  not  entitled  to  recover 
more  than  they  had  lost,  they  were  not  entitled 
to  recover  the  cost  of  reinstatement,  but  only 
the  actual  cost  of  converting  the  ship.  Bristol 
Steam  Navigation  Company  v.  Indemnity 
Mutual  Marine  Insurance  Company,  57  L.  T. 
101  ;  6  Asp.  M.C.I  73-  D. 

Freight — Salvage — Duty  of  Shipowner.]— A 

shipowner  shipped  goods  of  his  own  on  his  own 
ship  for  a  particular  voyage  from  Sunderland  to 
Valparaiso,  and  effected  a  policy  of  insurance  on 
"  freight"  The  ship  was  run  into  and  damaged 
at  the  port  of  loading  with  the  goods  on  board 
after  the  policy  had  attached,  whereby  the  cargo 
was  so  damaged  that  it  had  to  be  unloaded,  and 
the  particular  adventure  was  frustrated.  The 
ship  was  detained  in  port  some  six  weeks,  and 
all  expenses  of  repairs  and  demurrage  were  paid 
by  the  owners  of  the  colliding  ship.  When 
again  in  a  sea-going  condition  she  was  offered  a 
similar  cargo  to  the  same  port  by  the  owners  of 
the  colliding  ship ;  this  the  shipowner  refused, 
and  sailed  with  another  cargo  elsewhere  : — Held, 
that  the  shipowner  could  recover  nothing  on  the 
policy,  inasmuch  as  the  salvage  was,  or  might 
nave  been,  equivalent  to  the  freight  insured. 
Oayner  v.  Sunderland  Joint  Stock  Premium 
Association,  1  C.  &  E.  293— Day,  J. 

Separate  Policies  on  Ship  and  Freight— Pay- 
ment for  Total  Loss  on  Ship— Bight  of  Under- 
writers on  8hip  to  Damages  recovered  by  Assured 
for  Unearned  Freight.] — The  defendants  effected 
a  policy  of  insurance  on  their  ship  for  1,0002. 
with  the  plaintiffs ;  but  insured  the  freight  with 
other  underwriters.  The  ship,  while  proceeding 
to  her  port  of  loading  under  a  charter-party,  was 
run  into  and  damaged  by  another  ship.  The 
defendants  abandoned  her  to  the  plaintiffs,  who 
settled  with  them  as  for  a  total  loss.  The  defendants 
afterwards  recovered  in  the  Admiraltv  Division, 
against  the  owner  of  the  other  ship,  damages  in 
respect  of  the  loss  of  the  ship,  and  also  of  the 
freight  which  had  not  been  earned  :— Held,  that 
the  plaintiffs  were  not  entitled  to  recover  the 
damages  recovered  in  respect  of  the  loss  of 
freight,  such  damages  being  in  the  nature  of 
salvage  on  freight ;  for  freight  which  has  not 
been  earned  is  not  an  incident  of  the  ownership 
of  the  ship,  and  does  not  therefore  pass  to  the 
underwriters,  who  have  paid  as  for  a  total  loss 
on  the  ship.  Sea  Insurance  Company  v.  Hodden 
or  Hodden,  13  Q.  B.  D.  706  ;  53  L.  J.,  Q.  B.  252  ; 
50  L.  T.  657  ;  32  W.  R.  841  ;  5  Asp.  M.  0.  230— 
0.  A. 


7.  Actions  on  Policy. 

Third  Parties— Claim  for  Indemnity — Under- 
writers—Suing and  Labouring  Clause.] — The 
defendant  insured  his  ship  under  a  policy  con- 
taining the  usual  suing  and  labouring  clause. 
In  an  action  to  recover  for  work  alleged  to  have 
been  done  and  expenses  incurred  by  the  plaintiffs 
for  the  defendant,  at  his  request,  in  respect  of 
attempting  to  save  the  ship  during  the  continu- 


1019 


INSURANCE— Marine. 


1020 


ance  of  the  policy  : — Held,  that  the  defendant 
was  not  entitled  to  bring  in  the  underwriters  as 
third  parties  under  Ord.  XVI.  r.  48,  because  they 
dM  not.  by  the  suing  and  labouring  clause,  con- 
tract to  indemnify  the  defendant  in  respect  of 
any  contract  made  by  him  with  the  plaintiffs. 
Johnston  v.  Salvage  Association,  19  Q.  B.  D. 
458  ;  57  L.  T.  218  ;  36  W.  R.  56  ;  6  Asp.  M.  C. 
167— C.  A. 

Action  by  Underwriters  to  restrain  Holders 
from  Proceeding  on  Policy.]  —  If  a  policy  is 
liable  to  be  completely  avoided,  as  on  the  ground 
of  fraud  or  misrepresentation,  a  Court  of  Equity 
has  jurisdiction  to  direct  its  delivery  up  and 
cancellation,  but  it  has  no  jurisdiction  to  direct 
the  cancellation  of  a  policy  to  any  claim  on 
which  there  is  a  good  legal  defence,  or  to  declare 
that  there  is  no  liability  upon  it.  If  there  is 
danger  of  the  evidence  for  the  defence  being 
lost,  the  remedy  is,  not  an  action  for  cancellation, 
but  an  action  to  perpetuate  testimony.  Brook- 
ing v.  Mawlxlay,  88  Oh.  D.  636 ;  67*  L.  J.,  Ch. 
1001 ;  58  L.  T.  852  ;  36  W.  R.  664  ;  6  Asp.  M.  C. 
296— Stirling,  J. 

8.  Mutual  Insurance  Associations. 

limited  by  Guarantee — Limitation  of  liability 
—  Members   having   Twofold   Liability .]  — A 

mutual  marine  insurance  association  was  incor- 
porated, under  the  Companies  Act,  1862,  as  an 
association  limited  by  guarantee.  The  memo- 
randum of  association  declared  that  every  mem- 
ber undertot  k  to  contribute  to  the  assets  of  the 
association,  in  the  event  of  its  being  wound  up, 
a  sum  not  exceeding  hi.  for  the  payment  of  the 
debts  and  liabilities  of  the  association,  and  the 
costs,  charges,  and  expenses  of  winding  it  up, 
and  for  the  adjustment  of  the  rights  of  con- 
tributor ics  amongst  themselves.  The  defendant 
entered  his  ship  to  be  insured  in  the  association, 
and  by  the  rules  of  the  association  he,  by  so 
doing,  also  became  an  insurer  of  the  ships  of 
other  members  of  the  association  who  entered 
their  ships  in  the  same  class.  While  the  de- 
fendant continued  to  be  a  member  the  association 
was  wound  up.  In  an  action  brought,  pursuant 
to  the  rules  of  the  association,  to  recover  from 
the  defendant  a  sum  of  35/.  as  contribution 
toward*  losses  incurred  by  other  members  insured 
in  the  same  class  as  that  in  which  he  had 
entered  his  ship,  the  defendant  contended  that 
his  liability  was  limited  by  the  memorandum  of 
association  to  a  sum  of  51. :— Held,  that  the  limit 
of  5/.  only  applied  to  the  liabilities  incurred  by 
the  defendant  as  a  member  of  the  association 
to  the  association,  and  that  bis  liability  as  an 
insurer  towards  the  other  members  of  the  asso- 
ciation who  entered  their  ships  in  the  association 
was  not  limited  to  that  amount.  Lion  Mutual 
Marine  Insurance  Association  v.  Tucker,  12 
Q.  B.  D.  17  »  ;  53  L.  J.,  Q.  B.  185  ;  49  L.  T.  764  ; 
32  W.  R.  546— C.  A. 

Action  for  Contributions — Managing  Owner — 
Principal  and  Agent.] — The  managing  and  part 
owner  of  a  s'eamship  became  a  member  of  a 
mutual  insurance  association,  and  took  out  a 
policy  on  behalf  of  himself  and  his  co-owners  in 
respect  of  the  ship.  By  the  articles  of  association 
every  person  was  deemed  to  be  a  member  "  who 
in  his  own  name,  or  in  his  name  as  agent,  insures 
Hny  ship  in  pursuance  of  the  regulations  of  the 
company,"  and  they  also  provided  that  the  funds 


required  for  the  payment  of  claims  should  "  be 
raised  by  contributions  from  all  the  members." 
By  the  policy  it  was  agreed  between  the  assured 
and  the  company,  "  that  without  prejudice  to 
the  rights  and  remedies  of  the  company  sgainst 
the  said  person  or  persons  effecting  this  insurance, 
as  a  member  or  members  of  the  company,  in  re- 
spect of  this  insurance,  the  assured  shall  pay  to 
the  company,  in  lieu  of  premiums,  all  the  sums 
and  contributions  which  the  company  are  entitled 
to  call  upon  the  said  person  or  persons  effecting 
this  insurance,  as  a  member  or  members  of  the 
company,  to  pay  to  the  company  in  respect  of 
this  insurance  according  to  the  articles  of  asso- 
ciation of  the  company,  and  that  the  provision* 
contained  in  the  said  articles  of  association  shall 
be  deemed  and  considered  part  of  this  policy, 
and  shall,  so  far  as  regards  this  insurance,  be  as 
binding  upon  the  assured  as  upon  the  said  pernon 
or  persons  effecting  this  insurance."     Certain 
contributions  having,  in  accordance  with  the 
articles  of  association,  become  payable  by  the 
managing  owner  in  respect  of  the  ship,  and  the 
managing  owner  being  bankrupt,  the  association 
sued  the  other  owners  to  recover  the  contribu- 
tions:— Held,  that,  under  the  terms  of  the  policy, 
they  were  liable,  although  the  policy  was  effected 
by  the  managing  owner  alone.  Ocean  Iron  Steam- 
ship Insurance  Association  v.  Leslie,  22  Q.  B.  D. 
722 ;  67  L.  T.  722  ;  6  Asp.  M.  C.  226— Mathew,  J. 

Principal     and     Agent— Undisclosed 

Principal  not  Member  of  Association,]—!., 
the  manager  and  part  owner  of  a  ship, 
became  a  member  of  a  mutual  insurance  asso- 
ciation, and  took  out  a  policy  with  such  asso- 
ciation in  respect  of  the  ship.  The  article* 
of  association  gave  power  to  the  committee,  is 
order  to  provide  funds  for  the  business  of  the 
association,  from  time  to  time  to  direct  sums  to 
be  paid  by  the  members  rateably.  By  the  policy, 
which  was  made  by  the  association  under  their 
seal,  the  association  agreed  with  T.  that  the 
members  thereof  should  according  to  the  article* 
of  association  pay  and  make  good  losses  and 
damages  to  the  ship  occasioned  by  the  risks  in- 
sured against,  subject  to  a  proviso  that  the  asso- 
ciation should  be  liable  only  to  the  extent  of  so 
much  of  the  funds  as  they  were  able  to  recover 
from  the  members  liable  for  the  same,  and  which 
were  applicable  for  the  purpose  of  paying  claims 
under  the  policy.  Certain  contributions  to  the 
funds  of  the  association  having,  in  accordance 
with  the  articles,  become  payable  by  T.  in  respect 
of  the  ship,  and  T.  being  bankrupt,  the  associa- 
tion sued  N.,  another  part  owner  of  the  ship,  for 
such  contributions  as  an  undisclosed  principal  of 
T. :— Held,  that  the  effect  of  the  articles  of  asso- 
ciation and  the  policy  being  that  the  liability  for 
such  contributions  was  imposed  on  members 
only,  and  N.  not  being  a  member  of  the  associa- 
tion, he  could  not  be  sued  for  such  contribatioBS 
as  an  undisclosed  principal  of  T.  United  E*y- 
dom  Mutual  Steamship  Assurance  Assocuti** 
v.  NeviU*  19  Q.  B.  D.  110 ;  56  L.  J.f  Q.  B.  822: 
35  W.  R.  746— C.  A. 


Ships  Insured  without  Stamped  Policy- 


Estoppel.] — Where  a  member  of  a  mutual  in- 
surance company,  afterwards  converted  into  a 
limited  company,  has  vessels  on  its  books  as 
insured,  and  pays  calls,  and  otherwise  acts  as  if 
he  were  a  member  of  the  company,  be  is,  in  any 
action  brought  against  him  by  the  limited  com- 


1021 


INTEREST. 


1022 


dmt  for  calls  on  losses,  estopped  from  denying 
his  liability,  and  from  setting  up  either  any  irre- 
gularity in  the  transfer  from  the  one  company 
to  the  other,  or  that  the  losses  were  paid  with- 
out any  stamped  policies  being  entered  into  in 
contravention  of  30  Vict,  c  23,  s.  7.  Barroio 
Mutual  Skip  Insurance  Company  v.  Ashburner, 
54  L.  J.,  Q.  B.  377  ;  64  L.  T.  68  ;  6  Asp.  M.  C. 
527— C.  A. 

Aaanal  Policies— Forfeiture  for  non-payment 
cf  Contribution— Set-off  of  Contribution  against 
Ism.]— By  the  rales  of  a  marine  insurance  asso- 
ciation the  members  insured  each  other's  ships 
from  noon  of  Feb.  20  in  any  year,  or  from 
the  date  of  entry  of  a  vessel,  until  noon  of 
Feb.  20  in    the    succeeding   year;     and    the 
managers  were  empowered    to    levy  contribu- 
tions of   one-fourth    part   of    the    estimated 
annual  premium  quarterly  in  each  year,  such 
premiums  of  insurance  to  form  a  fund  for  the 
payment  of  claims,  and  if  any  member  should 
refine  to  pay  his  contributions  thereto,  his  ship 
should  cease  to  be  insured,  and  he  should  thence- 
forth forfeit  all  claims  in  respect  of  any  loss. 
On  the  6th  April,  1881,  a  loss,  incurred  in  the 
year  1880-1  upon  a  ship  belonging  to  the  plain- 
tut,  and  insured  in  the  association,  was  fixed  by 
an  avenge  adjuster  at  1801.    A  call  of  41/.  10*., 
made  on  the  plaintiff  on  the  6th  May,  1881,  for  the 
«cond  quarter  of  1881-2,  was  by  mutual  consent 
td  off  against  the  loss.    On  the  13th  May,  1881, 
the  association  paid  the  plaintiff  100/.  on  further 
wwrant  of  the  Joss.     On  the  23rd  June,  1881,  a 
call  was  made  on  the  plaintiff  of  62/.  16*.  &*., 
and  on  the  5th  July,  1881 ,  another  call  of  31/.  4«. 
The  plaintiff  having  tendered  the  balance  due 
from  hip,  the  association  refused  to  accept  it, 
and  during  the  pendency  of  an  action  to  recover 
the  foil  amount  of  the  two  calls  one  of  the  plain- 
tiffs ships  insured  in  the  association  was  wholly 
lost  :-~Held,  on  case  stated,  that  the  plaintiff  s 
ahip  did  not  cease  to  be  insured,  and  that  he  had 
not  forfeited  his  claim  in  respect  of  the  loss. 
WiUiavu  v.  British  Marine  Mutual  Insurance 
Asuciation,  67  L.  T.  27— D. 


INTEREST. 


]—&*  EXBCUTOB  AND  ADMINI- 

•hutoe,  III.,  8,  a. 
0m  Cuts.]— See  Costs. 


Debt.]— The  effect  of  s.  17  of  1  Jt  2 
Vict  c.  110,  is  that  interest  at  the  rate  of 
four  per  cent,  is  a  debt  necessarily  attached  to 
every  judgment  debt,  and  recoverable  at  law  as 
a  debt ;  and  the  judgment  creditor  is  not  con- 
fad  to  the  remedy  by  execution  mentioned  in 
Ike  section.  Therefore,  where,  in  the  case  of  a 
dwased  insolvent  debtor  who  became  insolvent 
before  1869,  a  sum  of  money  subsequently  came 
to  the  hands  of  the  assignee,  out  of  which  the 
principal  of  all  the  debts  entered  in  the  debtor's 
■chedule  was  paid,  it  was  held  that  the  judgment 
debts  were  not  satisfied  within  the  meaning  of  s. 
12  (since  repealed)  of  that  Act  until  interest  was 
paid,  and  the  assignee  was  ordered  to  pay  interest 
Wore  handing  over  any  surplus  to  the  repre- 


sentatives of   the  insolvent     Lewis,  Est  parte, 
Clagett,  In  re,  36  W.  R.  663— C.  A. 

County  Court.] — A  county  court  judg- 


ment debt  does  not  carry  interest  under  1  &  2 
Vict.  c.  110,  8.  17.  Beg.  v.  Essex  County  Court 
Judge,  18  Q.  B.  D.  704  ;  56  L.  J.,  Q.  B.  315  ;  57 
L.  T.  643  ;  35  W.  R.  511  ;  51  J.  P.  549- C.  A. 

Payment  over  of  Money  by  Agent  to  Principal.] 
— A  person  who  has  received  money  as  agent  is 
bound  not  only  to  account  for  the  same,  but  also 
to  pay  it  over  to  his  principal  when  requested  so 
to  do  ;  and,  in  an  action  for  money  had  and  re- 
ceived, is  chargeable  with  interest  on  the  amount 
so  received  from  the  date  of  the  refusal  to  pay 
it  over.  Pearse  v.  Green  (1  Jac.  &  W.  135), 
followed.  Harsant  v.  Blaine,  56  L.  J.,  Q.  B. 
511— C.  A. 

Payment  of,  when  an  Acknowledgment  of 
Debt  J — See  Limitations,  Statutb  of. 

Solicitor  and  Client— Fiduciary  Relation.]— 

The  plaintiff  had  mortgaged  her  life  interest  in 
certain  leasehold  property  to  various  persons. 
In  the  year  1880,  the  defendant,  who  was  then 
acting  as  her  solicitor,  in  order  to  release  her 
from  embarrassment,  bought  up  several  of  the 
incumbrances  with  his  own  money,  and  took  a 
transfer  of  them  to  himself : — Held,  in  an  action 
for  redemption  brought  by  the  plaintiff  against 
the  defendant,  that  the  defendant  must  be  al- 
lowed interest  at  the  rate  of  five  per  cent  on  the 
moneys  he  had  actually  advanced.  Macleod  v. 
Jones,  53  L.  J.,  Ch.  634 ;  50  L.  T.  358  ;  32  W.  R. 
660—  Pearson,  J. 

Disbursements  and  Costs — Demand  from 

Client.]— By  General  Ord.  VII.  under  the  Soli- 
citors'Remuneration  Act,  1881  (44  &  45  Vict, 
c.  44),  s.  5,  the  interest  which  a  solicitor 
is  entitled  to  recover  under  the  order  on  the 
amount  due  on  business  transacted  by  him  is  not 
to  commence  till  the  amount  due  is  ascertained, 
either  by  agreement  or  taxation — and  it  is  pro- 
vided that  a  solicitor  may  charge  interest  at 
4  per  cent,  per  annum  on  his  disbursements  and 
costs,  whether  by  scale  or  otherwise,  from  the 
expiration  of  one  month  from  demand  from  the 
client  A  solicitor  delivered  his  bill  to  a  client 
without  claiming  interest  The  bill  was  taxed, 
and  the  client  paid  the  amount  allowed  on  taxa- 
tion. On  such  amount  being  paid  the  solicitor 
claimed  interest  thereon  at  4  per  cent  from  one 
month  from  the  date  of  the  delivery  of  the  bill : 
— Held,  that  the  solicitor  was  entitled  to  such 
interest.  Blair  v.  Cordner,  19  Q.  B.  D.  516  ;  56 
L.  J.,  Q.  B.  642  ;  36  W.  R.  109— D. 

Mortgage — Payment  off— Interest  in  lien  of 
Hotice — Payment  out  of  Fund  in  Court— Delay 
in  Completion  of  Order.]— One  of  the  benefi- 
ciaries under  a  will  mortgaged  her  interest 
in  the  testator's  estate.  She  gave  the  mortgagees 
six  months'  notice  to  pay  off  the  mortgage  on 
the  1st  of  July,  1885,  and  on  the  20th  of  May, 
1886,  an  order  was  made  in  an  action  to 
administer  the  estate,  on  the  application  of  the 
beneficiaries  and  in  the  presence  of  the  mort- 
gagees, which  directed  (inter  alia)  payment  to 
the  mortgagees,  out  of  funds  in  court  standing 
to  the  credit  of  the  mortgagor,  of  the  mortgage 
debt,  with  interest  up  to  the  1st  of  July,  1886. 
Owing  to  delay  in  the  completion  of  the  order 
the  payment  could  not  be  made  on  the  1st  of 


1028 


INTERNATIONAL    LAW. 


1024 


July,  and  on  the  2nd  of  July  the  mortgagees 
took  out  a  summons,  claiming  six  months' 
additional  interest  in  lieu  of  a  fiesh  six  months' 
notice  to  pay  off  the  mortgage.  On  the  20th  of 
July  the  order  was  completed,  and  on  the  21st  of 
July  the  mortgagees  took  the  sum  mentioned  in 
the  order  out  of  court : — Held,  that  the  mort- 
gagees were  only  entitled  to  additional  interest 
from  the  1st  to  the  21st  of  July,  on  the  ground 
that,  by  accepting  the  order,  they  assented  to 
payment  out  of  the  fund  in  court  subject  to  all 
the  contingencies  to  which  the  completion  of 
the  order  might  be  subject.  Mo**,  In  re,  Levy 
v.  SewUl,  31  Ch.  D.  90 ;  65  L.  J.,  Ch.  87  ;  54 
L.  T.  49  ;  34  W.  R.  59— Pearson,  J. 


Covenant  to  pay  Principal  and  Interest — 


Judgment— Merger.] — A  mortgage  deed  con 
tained  a  covenant  by  the  mortgagor  for  payment 
of  the  principal  sum  on  the  expiration  of  six 
months  next  after  a  specified  day,  together  with 
interest  at  6  per  cent  per  annum.  There  was  a 
further  covenant  that  if  the  principal  should 
remain  unpaid  after  the  expiration  of  the  six 
months,  the  mortgagor  would  pay  interest  at  the 
same  rate  on  the  amount  unpaid.  After  the 
expiration  of  the  six  months  the  mortgagee 
recovered  judgment  against  the  mortgagor  on  the 
covenant  for  the  principal  sum  and  interest  in 
arrear : — Held,  that  the  covenant  being  merged 
in  the  judgment,  the  mortgagee  was,  as  from  the 
date  of  the  judgment,  entitled  only  to  interest  on 
the  judgment  debt  at  the  rate  of  4  per  cent.,  and 
was  not  entitled  under  the  covenant  to  interest 
at  the  rate  of  6  per  cent,  on  the  principal  sum. 
Popple  v.  Sylvester  (22  Ch.  D.  98)  distinguished. 
Fewings,  £x  parte.  Sneyd,  In  re,  25  Ch.  D. 
338  ;  63  L.  J.,  Ch.  545  ;  50  L.  T.  109  :  32  W.  R. 
352— C.  A. 

Unpaid  Purchase  Money— Lands  Clauses 

Act.] — In  the  case  of  a  compulsory  purchase 
under  the  Lands  Clauses  Act,  184  5,*  interest  is 
payable  to  the  vendor  by  the  purchaser  from  the 
time  when  possession  might  have  been  taken,  it 
appearing  that  a  good  title  could  be  shown. 
And  the  land  being  subject  to  mortgage,  interest 
is  payable  by  the  vendor  to  the  m  rtgagee  in 
lieu  of  notice.  Spencer-Bell  to  the  London  and 
South  Western  Railway,  33  \V\  R.  771  — 
Chitty,  J. 


-On  Foreclosure.]— See  Mobtgage  (Fore- 


closure). 

On   Damages — Admiralty   Division.  J — In  an 

action  in  the  Admiralty  Division,  which  could 
not,  prior  to  the  Judicature  Acts,  have  been 
tried  in  the  Admiralty  Court,  the  defendant 
made  no  objection  to  the  jurisdiction,  and 
interest  was,  according  to  the  practice  in  the 
Admiralty  registry,  allowed  on  the  assessed 
damages  from  the  time  when  the  plaintiffs'  claim 
arose.  In  another  action  transferred  by  consent, 
after  verdict  for  the  plaintiff,  to  the  Admiralty 
Division  for  the  assessment  of  the  damages  by 
the  registrar  and  merchants,  the  same  practice 
was  followed  in  regard  to  the  interest : — Held, 
that  interest  on  the  damages  was  properly 
awarded  by  the  registrar  on  the  ground  that  the 
parties,  in  both  cases,  having  proceeded  on  the 
understanding  that  the  Admiralty  practice  should 


apply,  had  impliedly  consented  to  abide  by  sneb 
practice.  The  Gertrude,  The  Baron  Aberdare, 
13  P.  D.  105  ;  59  L.  T.  251 ;  36  W.  R.  616;  6 
Asp.  M.  C.  315— C.  A. 


INTERLOCUTORY  PRO 
CEEDINGS. 

See  PRACTICE. 


INTERNATIONAL  LAW. 

I.  Foreign  Governments  and  Ambassa- 
dors, 1024. 

II.  Aliens— Naturalization,  1025. 

III.  Domicil,  1026. 

IV.  Jurisdiction  of  English  Courts,  1031. 
V.  Contracts,  1034. 

VI.  Foreign  Judgments.  1038. 

I.  FOREIGN  GOVERNMENTS  AND 
AMBASSADORS. 

Recognition  of  de  facto  Government— EtW 
State — De  jure  Government.] — Where  the  re- 
volutionary or  de  facto  government  of  a  coontrr 
has  been  recognised  by  the  government  of  & 
foreign  state,  a  subject  of  such  foreign  state  mtj 
safely  contract  with  that  de  facto  government: 
and  if,  by  subsequent  revolution,  the  previously 
existing  government  of  the  country  is  restored, 
the  restored  government  is  bound  by  intern* 
tional  law  to  treat  any  such  contract  as  valid. 
and  in  a  litigation  with  the  foreigner,  party  to 
the  contract,  must  adopt  the  contract,  merely 
taking  such  rights  as  the  de  facto  government 
might  have  had  under  it : — Semble,  that  even  in 
the  case  of  a  contract  by  a  foreigner  with  a  rebel 
state  which  has  not  been  internationally  recog- 
nised, property  acquired  under  it  cannot  be  re- 
covered from  him  in  violation  of  the  contract 
Republic  of  Peru  v.  Dreyfus,  38  Ch.  D.  348 ;  57 
L.  J.,  Ch.  536 ;  58  L.  T.  433  ;  36  W.  R.  492- 
Kay,  J. 

Immunities  of  Ambassador — Attach*— lia- 
bility for  Rates.]— An  attache  to  an  ambassador 
in  this  country  of  a  foreign  state  is  not  liable  tor 
rates  assessed  on  his  private  residence.  Parkin- 
son v.  Potter,  16  Q.  B.  D.  152  ;  55  L.  J.,  Q.  * 
153  ;  53  L.  T.  818  ;  34  W.  R.  215  ;  60  J.  P.  470 
— D. 

Semble,  if  there  is  evidence  that  a  certain  per- 
son is  treated  at  the  embassy  of  a  foreign  nation 
in  England  as  a  member  of  the  legation,  and  i* 
employed  from  time  to  time  by  the  ambatsadow 
of  that  nation,  it  is  not  for  the  court  to  measure 
the  quantum  of  the  services  either  required  from 
or  rendered  by  him.    lb. 


1025 


INTEKNATIONAL    LAW— Aliens— Naturalisation. 


1026 


II.  ALIENS— NATURALISATION. 

Aliens— Electoral  Status  of  Persons  Born 
in  Hanover  before  the  Queen's  Accession.]— At 
a  parliamentary  election  in  1885  the  following 
persona  voted*:  —  (1)  Persons  born  in  the 
kingdom  of  Hanover  before  1837  and  not  natural- 
i*** ;  (2)  persons  born  in  that  kingdom  since 
1837  of  parents  born  there  before  that  date  and 
Dot  naturalised ;  (3)  a  person  born  in  Prussia 
since  1837  of  parents  born  in  Hanover  in  1802 
and  not  naturalised : — Held,  that  such  persons 
are  aliens  in  the  contemplation  of  the  law 
relating  to  parliamentary  elections,  and  as  such 
disentitled  to  vote  though  upon  the  register. 
Isaacson  v.  Durant,  17  Q.  B.  D.  54  ;  55  L.  J., 
Q.  B.  331 ;  54  L.  T.  684  ;  84  W.  E.  547— D. 

Qualified  Naturalisation—Infants — Guardian 
—Jurisdiction.] — In  1861  B.,  a  Frenchman, 
came  to  England,  and  in  1871  obtained  from 
the  British  Home  Office  a  certificate  of  natural- 
isation, declaring  that  he  was  thereby  natural- 
ised as  a  British  subject,  and  that  upon  taking 
the  oath  of  allegiance  he  should  in  the  United 
Kingdom  be  entitled  to  all  political  and  other 
rights,  powers,  and  privileges,  and  be  subject  to 
all  obligations  to  which  a  natural-born  British 
subject  was  entitled  or  subject  in  the  United 
Kingdom,  with  this  qualification,  "  that  he  shall 
not,  when  within  the  limits  of  the  foreign  State 
of  which  he  was  a  subject  previously  to  his 
obtaining  his  certificate  of  naturalisation,  be 
deemed  to  be  a  British  subject  unless  he  has 
ceased  to  be  a  subject  of  that  State  in  pursuance 
of  the  laws  thereof,  or  in  pursuance  of  a  treaty 
to  that  effect"  In  1870  B.  married  an  English- 
woman. Two  children  were  born  in  Paris,  and 
their  births  registered  at  the  British  Embassy. 
In  1886  B.  died  at  Neuilly,  having  by  will  made 
in  French  form  given  the  residue  of  nis  property 
to  his  two  children.  Half  the  property  was  in 
France  and  half  in  England.  In  June,  1887,  B.'s 
widow  died.  On  summons  by  an  English  half- 
brother  of  the  children  for  the  appointment  of 
himself  as  guardian : — Held,  that  the  certificate 
was  not  a  certificate  of  naturalisation  absolutely 
to  all  intents  and  purposes,  but  that  the  natural- 
isation was  qualified,  and  did  not  deprive  B.  of 
his  status  as  a  French  subject : — Held,  that,  as 
B.was  at  the  time  of  his  death  a  French  subject, 
and  his  children  were  French  subjects,  the 
English  court  had  no  jurisdiction,  Bourgoise, 
In  re,  41  Ch.  D.  S10  ;  58  L.  T.  431  ;  37  W.  R. 
663— Kay,  J.  See  S.C.  in  C.  A.,  41  Ch.  D.  310 ; 
60  L.  T.  553  ;  37  W.  B.  563. 

British  Subject  Naturalised  in  Foreign 
Gantry.] — A  testator  who  was  by  birth  a 
British  subject,  and  was  the  father  of  the 
plaintiff,  went  to  reside  in  Switzerland,  and  in 
the  year  1842  acquired  the  "  Landrecht "  or 
**  Indigenat "  in  the  canton  of  Zurich,  without 
being  required  to  renounce  his  English  nation- 
ality, which  in  the  then  state  of  English  law  he 
could  not  have  effectually  done  ;  and  he  thereby 
became  of  Swiss  nationality.  With  the  sanction 
of  the  cantonal  authorities  he  could  have  relin- 
quished this  "  Landrecht "  or  "  Indigenat,"  but 
he  never  effectually  did  so,  although  he  after- 
wards left  Switzerland  and  went  to  reside  in 
France,  where  he  died  with  a  French  domicil  in 
the  year  1878 : — Held,  that  the  6th  section  of 
the  Naturalisation  Act,  1870,  applied  to  the 


testator ;  that  at  the  time  of  his  death  he  was  a 
Swiss,  and  not  a  British  subject;  and  that, 
having  regard  to  the  French  law,  under  which 
the  Swiss  tribunals  were  the  proper  forum,  the 
courts  of  Zurich  had  jurisdiction  to  decide  upon 
the  right  of  succession  to  his  personal  estate  : — 
Held,  also,  that  notwithstanding  an  attempted 
disposition  by  the  testator  of  the  whole  of  his 
personal  estate  in  favour  of  a  stranger,  the 
plaintiff  was,  in  accordance  with  a  judgment  of 
the  courts  of  Zurich,  entitled  as  the  testator's 
only  child  to  nine-tenths  of  such  estate  as  his 
compulsory  portion.  Trufort,  In  re,  Trafford  v. 
Blanc,  36  Ch.  D.  600 ;  57  L.  J.,  Ch.  135 ;  67  L.  T. 
674  ;  36  W.  R.  163— Stirling,  J. 


HI.    DOMICIL. 

General  Principles.]— A  change  of  domicil 
must  be  a  residence  sine  animo  revertendi.  A 
temporary  residence  for  the  purposes  of  health, 
travel,  or  business,  does  not  change  the  domicil. 
Also  (1)  every  presumption  is  to  be  made  in 
favour  of  the  original  domicil ;  (2)  no  change 
can  occur  without  an  actual  residence  in  a  new 
place ;  and  (3)  no  new  domicil  can  be  obtained 
without  a  clear  intention  of  abandoning  the  old. 
Lauderdale  Peerage.  The.  10  App.  Cas.  692— 
H.  L.  (Sc) 


Subjects  visiting  Colonies.]— When 
English  settlors  go  out  to  a  province  conquered 
by  the  English,  they  carry  with  them,  so  far  as 
may  be  applicable  to  their  purpose,  all  the  im- 
munities and  privileges  of  the  law  of  England 
as  the  law  of  England  was  at  that  time.  lb.— 
Per  Blackburn,  Lord. 

Hot  arising  from  Society  or  Locality— Anglo- 
Egyptian.  J — There  is  no  such  thing  as  domicil 
arising  from  society  and  not  from  connexion 
with  a  locality ;  consequently,  as  Cairo  is  not  a 
British  possession  governed  by  English  law,  a 
testator's  permanent  abode  therein  under  British 
protection  does  not  attract  to  him  an  English  or 
Anglo-Egyptian  domicil.  TootaVs  Trust*,  In  re 
(23  Ch.  D.  532)  approved.  Abd-UUMeuih  v. 
Farra,  13  App.  Cas.  431 ;  57  L.  J.,  P.  C.  88  ;  59 
L.  T.  106— P.  0. 

Presumption  as  to  —Officer— Anglo-Indian,] — 
The  mere  fact  that  a  person  bears  an  English 
name,  and  is  an  officer  in  the  British  army,  does 
not  raise  any  presumption  that  his  domicil  is 
English  as  distinguished  from  Scotch  or  Irish. 
The  cases  relating  to  Anglo-Indian  domicil  com- 
mented on  and  explained.  Cunningham,  Eos 
parte,  Mitchell,  In  re,  13  Q.  B.  D.  418  ;  53  L.  J., 
Ch.  1067  ;  51  L.  T.  447 ;  33  W.  R.  22  ;  1  M.  B. 
B.  137— C.  A. 

What  Evidence  Admissible.]  — Evidence  of 
subsequent  as  well  as  of  prior  acts  is  admissible 
for  the  purpose  of  ascertaining  a  person's  domi- 
cil at  a  given  period.  Grove,  In  re,  Vaucher  v. 
Solicitor  to  the  Treasury,  40  Ch.  D.  216 :  58 
L.  J.,  Ch.  67 ;  59  L.  T.  587  ;  37  W.  B.  1—C.  A. 

Evidence  of  Abandonment — Terms  of  Foreign 
Law  in  Will.]— A  Scotchman  came  to  live  in 
England  and  acquired  an  English  domicil.  He 
afterwards  went  for  ten  years  to  France,  and 

L  L 


1027 


INTERNATIONAL   LAW— Domicti. 


1028 


returned  to  England  where  he  soon  after  died. 
He  left  an  unsigned  will  of  personal  estate  made 
in  1827,  which  was  drawn  by  a  Scotch  lawyer, 
and  contained  several  technical  words  of  Scotch 
law.  The  will  was  admitted  to  probate  by  the 
English  court.  Semble,  that  the  testator  died 
domiciled  in  England,  his  residence  in  France 
not  being  sufficient  evidence  of  his  intention  to 
abandon  his  English  domicil.  Semble,  also,  that 
the  use  of  some  technical  Scotch  words  in  the 
will,  did  not  furnish  sufficient  indication  of  the 
intention  of  the  testator  to  induce  the  court  to 
construe  it  according  to  Scotch  law.  Bradford 
v.  Young,  29  Ch.  D.  617  ;  53  L.  T.  407  ;  33  W.  R. 
860— C.  A.  Affirming  in  part  54  L.  J.,  Ch.  96— 
Pearson,  J. 

Residence — Will  in  English  Form— Inten- 
tion.]— A  testator  was  born  in  Scotland  in  1832 
of  Scotch  parents  ;  he  came  to  London  in  1848, 
and  in  1855  he  went  to  Calcutta,  and  became 
first  a  clerk,  and  then  a  partner  in  the  firm  of 
Jardine,  Skinner,  &  Co.  In  1877  he  retired 
from  business,  returned  to  England,  and  subse- 
quently became  a  member  of  the  Indian  Council. 
He  first  took  a  house  at  Southampton  for  sixteen 
months,  and  lived  there  with  his  wife  and  family. 
In  1878  he  took  a  five  years'  lease  of  a  house  at 
Surbiton,  and  lived  there  until  1883,  when  he 
took  a  lease  of  a  house  in  London  for  seven, 
fourteen,  or  twenty-one  years,  with  an  option  of 

Eurchase  at  the  end  of  two  years,  which  option 
e  did  not  exercise.  He  lived  there  until  1887, 
when  he  died.  He  made  his  will  in  Calcutta  in 
English  form,  leaving  his  property,  which  con- 
sisted entirely  of  personally  in  England,  to  his 
wife  for  life,  with  remainder  to  his  four  children 
equally.  He  had  no  property  in  Scotland.  On 
originating  summons  : — Held,  that  there  was  no 
indication  of  intention  upon  the  part  of  the  tes- 
tator upon  his  return  from  India  to  go  back  to 
Scotland,  or  to  treat  himself  as  a  Scotchman. 
If  he  had  intended  to  remain  a  Scotchman,  he 
would  have  made  his  will  in  Scotch  form; 
because  a  man's  personal  property  in  any  locality 
was  governed  by  his  domicil.  The  fact  that  he 
set  up  his  place  of  residence  in  successive  houses 
in  England  with  his  wife  and  family,  showed  an 
intention  of  permanently  residing  in  England, 
and  was  sufficient  to  fix  him  with  an  English 
domicile.  Bullen-Smith,  In  re,  Bernert  v. 
Button-Smith,  58  L.  T.  578— Kay,  J. 

Abandonment  of  Domicil  of  Choice — Change 
of  Intention— Revival  of  Domioil  of  Origin.] — 
In  order  to  lose  the  domicil  of  choice  and  revive 
the  domicil  of  origin  it  is  not  sufficient  for  the 
person  to  form  the  intention  of  leaving  the 
domicil  of  choice,  but  he  must  actually  leave  it 
with  the  intention  of  leaving  it  permanently. 
Marrett,  In  re,  Chalmers  v.  Wingfield,  36  Ch.  D. 
400  ;  57  L.  T.  896  ;  36  W.  R.  344— C.  A. 

In  1855  a  domiciled  Manxman  came  to  England 
and  married  an  Englishwoman,  and  resided  in 
England  for  twenty  years.  At  the  date  of  the 
marriage  the  wife  was  entitled  to  a  vested  rever- 
sionary interest  in  a  legacy  which  fell  into  pos- 
session in  1885.  In  1875  the  husband  and  wife 
returned  to  the  Isle  of  Man,  where  the  husband 
carried  on  business  till  1878,  when  he  became 
insolvent,  and  executed  a  deed  of  assignment  of 
all  his  property,  including  his  wife's  interest  in 
the  legacy,  for  the  benefit  of  his  creditors.  In 
1880  the  parties  returned  to  England,  where 


they  resided  till  1882,  when  the  husband  went  to 
Mexico  to  seek  employment.  The  doctrine  of  a 
wife's  equity  to  a  settlement  is  unknown  to 
Manx  law  : — Held,  that  the  Manx  domicil  of  the 
husband,  which  had  been  lost  by  the  twenty 
years'  residence  in  England,  reverted  on  his 
return  to  the  Isle  of  Man,  that  nothing  happened 
afterwards  to  re-establish  the  English  domicil, 
and  that  as  the  domicil  was  therefore  Manx,  the 
wife's  equity  to  a  settlement  could  not  be  as- 
serted. Marsland,  In  re,  55  L.  J.,  Ch.  581 ;  54 
L.  T.  635 ;  34  W.  R.  640— Kay,  J. 

Military  Service  of,  Crown— Effect  of,  « 
Domioil.]— The  rule  that  a  British  subject  does 
not,  by  entering  into  and  remaining  in  the 
military  service  of  the  Crown,  abandon  the 
domicil  which  he  had  when  he  entered  into  the 
service,  applies  to  an  acquired  domicil  as  well 
as  to  a  domicil  of  origin.  An  infant,  whose 
father  was  then  living  in  Jersey,  where  he  had 
acquired  a  domicil  in  place  of  his  English  domicil 
of  origin,  obtained  a  commission  in  the  British 
army  in  1854  and  joined  his  regiment  in  England. 
He  served  with  the  regiment  in  different  parts 
of  the  world,  and  ultimately,  in  1863,  he  died  in 
Canada,  where  he  then  was  with  the  regiment 
He  had  in  the  meantime  paid  occasional  visits 
to  Jersey  while  on  leave  : — Held,  that  he  retained 
his  Jersey  domicil  at  the  time  of  his  death. 
Maor eight,  In  re,  Paxton  v.  Macreight,$QOcL  D. 
165  ;  55  L.  J.,  Ch.  28  ;  53  L.  T.  146  ;  33  W.  K 
838 — Pearson,  J. 

P.  was  born  in  Scotland  in  1792,  of  Scotch 
parents.  In  1810  he  obtained  a  commission  in 
the  army,  and  immediately  proceeded  with  his 
regiment  on  foreign  service,  and  served  abroad 
till  1860,  when  he  retired  from  the  army.  From 
1860  till  his  death  he  resided  in  lodgings,  hotels, 
and  boarding-houses  in  various  places  in  England, 
dying  in  1882,  intestate  and  a  bachelor,  in  a 
private  hotel  in  London,  leaving  no  real  estate 
in  England,  and  no  property  whatsoever  in  Scot- 
land. From  the  year  1 810  till  his  death  he  never 
revisited  Scotland,  and  for  the  last  twenty-two 
years  of  his  life  never  left  the  territorial  limits 
of  England : — Held,  that  the  domicil  of  the 
intestate  at  his  death  was  Scotch.  Patience,  I* 
re,  Patience  v.  Main,  29  Ch.  D.  976  ;  54  L.  J., 
Ch.  897 ;  52  L.  T.  687  ;  33  W.  R.  601— Chitty,  J. 

Englishwoman  Marrying  Foreigner  Ahroai 
— Acquisition  of  new  Domicil — Abandonment  of 
Domioil  of  Origin.]— In  1839  N.,  a  domiciled 
Englishwoman,  being  then  an  infant,  married  in 
France  a  Frenchman.  Previously  to  the  mar- 
riage she  entered  into  a  notarial  contract  dealing 
with  her  property  according  to  French  law. 
There  were  children  of  the  marriage.  In  1845 
she  separated  from  her  husband  ana  went  with 
her  children  to  reside  in  Jersey.  In  1849  an  act 
of  separation  of  property  between  the  husband 
and  wife  was  made  by  the  Royal  Courts  of 
Jersey.  In  1853  N.,  believing  her  husband  to  be 
dead,  went  through  the  ceremony  of  marriage 
with  B.,  and  accompanied  him  and  her  children 
to  New  South  Wales,  where  she  lived  until  her 
death  in  1879.  Her  husband  did  not  in  fact  die 
until  1877.  In  1878  she  made  a  will,  by  which 
she  left  all  her  property  to  B. : — Held,  that  by 
going  to  New  South  Wales  N.  had  acquired  a 
new  domicil  there,  inasmuch  as  there  were  pre- 
sent both  the  elements  necessary  for  such  acqui- 
sition— namely,  the   factum   and   the  animus 


1029 


INTERNATIONAL    LAW— Domicil. 


1080 


manendi ;  but  that,  even  if  not  so,  it  most  be 
taken  that  she  had  abandoned  ber  French 
domicil  and  that  her  English  domicil  of  origin 
hid  re?ived : — Held  also,  following  Sottomayor 
t.  De  Barrot  (3  P.  D.  5),  that  the  validity  of  the 
notarial  contract  most  be  decided  according  to 
the  law  of  her  domicil  of  origin,  and  consequently, 
ahe  being  an  infant,  that  such  contract  was  in- 
valid .•—Held,  therefore,  that  there  was  nothing 
to  prevent  her  making  a  will,  or  to  disentitle  B. 
to  take  under  it  as  against  the  children  of  the 
French  marriage.  Cooke's  Trusts,  In  re,  56  L. 
J,  Ch.  637 ;  56  L.  T.  737  ;  35  W.  B.  608— 
Stilling,  J. 

The  testatrix,  whose  domicil  of  origin  was 
English,  married  a  German  subject,  and  resided 
in  Germany  until  his  death,  which  happened 
after  the  12th  May,  1870.  After  the  death  of 
her  husband,  she  executed  in  Germany  a  will, 
which  was  valid  according  to  the  requirements 
of  the  English  law,  but  not  according  to  the  re- 
quirements of  the  law  of  Germany : — Held,  that 
toe  will  was  not  entitled  to  probate  in  England. 
BUvm  v.  Favre,  9  P.  D.  130  ;  53  L.  J.,  P.  26  ; 
*0L.  T.  766  ;  32  W.  R.  673— C.  A. 

The  petitioner    being  a  domiciled    English- 
woman, in  1872  went  through  a  form  of  marriage 
with  an  American  citizen.    She  cohabited  with 
him  until  February,  1879,  in  the  United  States, 
art  in  April,   1879,  the    Supreme    Court   of 
Colombia  pronounced  a  decree  dissolving  the 
marriage  on  the  ground  of  the  husband's  in- 
capacity.   She  then  returned  to  this  country, 
and  in  1886  presented  a  petition  to  this  court 
piaying  for  a  declaration  of  nullity  of  marriage  : 
—Held,  that  as  the  marriage  was  voids  ble  and 
not  void  the  petitioner  had  acquired  an  American 
domicil,  that  the  American  court  had  iurisdiction 
to  dissolve  the  marriage,  and  that  there  being  no 
longer  a  marriage  in  existence,  this  court  had  no 
jurisdiction.     Turner  v.  Thompson,  or  T.  v.  T., 
»  P.  D.  37  ;  57  L.  J.,  P.  40;  58  L.  T.  387  ;  36 
W".  B.  702  ;  52  J.  P.  151— Hannen,  P. 

lastand  of  English  Domicil  living  Abroad— 
Wifr  in  England.] —In  proceedings  for  divorce 
it  appeared  that  the  petitioner  had  been  born  in 
France  of  French  parents.  When  he  was  ten 
yean  old  his  parents  settled  in  England,  and 
the  father  subsequently  obtained  letters  of 
tttaraliaation  as  a  British  subject.  The  peti- 
tioner when  eighteen  years  of  age  went  to 
toada,  where  he  took  up  the  business  of  farm- 
ing, bought  a  farm,  served  in  the  Canadian 
vohmteers,  and  discharged  the  duties  of  a  citizen 
of  Canada.  In  1878  he  married  the  respondent, 
*ho  was  a  Canadian,  and  in  1883  he  brought  her 
with  their  children  to  this  country,  where  he 
Maided  for  some  years  with  his  father.  He  had 
occasion  to  return  several  times  to  Canada,  as  he 
ftUeged,  to  look  after  his  farm,  and  from  1884 
was  only  seven  months  in  this  country.  The 
napondent  remained  in  England  until  the  date 
of  the  alleged  adultery,  when  she  visited  France  : 
—Held,  that  the  petitioner  had  not  lost  his 
English  domicil — that  the  matrimonial  home 
was  in  England,  and  that  the  Court  had  there- 
fae  jurisdiction  over  the  proceedings.  UEtche- 
Vft*  v.  & BteKegoye*,  13  P.  D.  132  ;  67  L.  J., 
F.  104  ;  37  W.  B.  64— Hannen,  P. 

Pratmmption  of  Jurisdiction  of  Foreign  Court 
— TiMtty  of  Second  Marriage.]— A.  and  B., 
both  having  an  Irish  domicil,  were  lawfully 


married  in  Ireland,  and  resided  in  Ireland  for  a 
year  after  their  marriage.    They  subsequently 
went  to  an  English  colony,  where  the  husband 
was  engaged  in  various  pursuits,  abandoned  all 
idea  of  returning  home,  and  visited  England 
only  for  short  periods  and  for  temporary  pur- 
poses.   In  the  fifth  year  of  cohabitation  B.  com- 
mitted adultery  with  S.,  whose  domicil    was 
English,  and  in  a  suit  instituted  by  A.  in  the 
colonial  court,  in  which  all  parties  were  repre- 
sented, a   decree   was   pronounced   dissolving 
the  marriage.    B.  and    S.   shortly  afterwards 
returned  to  England,  where  they  went  through 
the  form  of  a  marriage  according  to  law  : — Held, 
first,  that  it  must  be  taken  that  A.  was  domiciled 
in  the  colony  and  that  the  divorce  was  valid ; 
secondly,  that  the  marriage  between  B.  and  S. 
was  valid,  for  although  the  law  prevailing  in  the 
colony  prohibited  the  re-marriage  of  a  guilty 
party  as  long  as  the  innocent  party  remained 
unmarried,  yet  as  the  colonial  divorce  operated 
to  annul  the  existing  marriage  and  to  restore 
the  parties  to  the  position  of  unmarried  persons, 
they  were  free  to  remove  from  the  jurisdiction 
and  to  contract  a  fresh  marriage  according  to 
the  laws  of   this  country.     Scott  v.  Attorney- 
General,  11  P.  D.  128  ;  65  L.  J.,  P.  67  ;  66  L.  T. 
924  ;  50  J.  P.  824— Hannen,  P. 

S.,  an  Austrian  subject  by  birth  and  parentage, 
and  a  Roman  Catholic  by  religion,  contracted  a 
valid  marriage  in  Berlin  with  a  lady  of  the  same 
domicil  as  himself,  but  described  in  the  marriage 
certificate  as  of  the  Evangelical  religion.  This 
marriage,  which,  by  the  law  of  Austria,  was 
absolutely  indissoluble,  was  subsequently  dis- 
solved in  Berlin  by  mutual  consent,  on  a  petition 
presented  by  the  wife.  S.  subsequently  married 
in  England  an  English  Protestant  lady,  his  first 
wife  being  still  alive.  The  second  wife  petitioned 
this  court  for  a  decree  of  nullity,  on  the  ground 
that  the  Berlin  divorce  did  not  effectually  dis- 
solve the  first  marriage  of  S.,  which,  she  alleged, 
was  therefore  still  subsisting  and  binding: — 
Held,  that  the  Berlin  divorce  was  good;  and, 
consequently,  that  the  second  marriage  was  good 
also.    Ingham  v.  Sachs,  56  L.  T.  920— Butt,  J. 


Illegitimate  Child— Domioil  of  Origin  or  of 
Choice.] — The  illegitimate  son  of  a  Portuguese 
woman  was  sent  to  Scotland  when  a  child,  and 
remained  under  the  control  of  his  father's  rela- 
tions there,  being  sent  to  school  in  Scotland,  and 
for  a  short  time  in  Germany.  At  the  age  of 
eighteen  he  obtained  an  appointment  in  the 
English  Customs  Department,  and  went  to 
Yarmouth,  and  afterwards  to  London,  where  he 
remained  in  the  same  employment  till  he  was 
twenty-eight,  when  he  returned  to  Scotland  in 
ill-health,  and  soon  afterwards  became  lunatic, 
in  which  state  he  remained  until  his  death. 
While  living  in  London  he  paid  some  visits  to 
Scotland,  where  he  retained  apartments,  in 
which  he  left  his  books,  &c.  According  to 
Scotch  law  an  infant  can  choose  his  own  domi- 
cile at  the  age  of  fourteen : — Held,  on  the 
evidence,  that  his  domicil  was  not  Scotch. 
Semble,  that  his  domicil  was  English.  Urqu- 
hart  v.  BuUerfidd,  37  Ch.  D.  357 ;  57  L.  J., 
Ch.  521 ;  58  L.  T.  750— C.  A. 

Subsequent  Marriage— Validity  at  Domi- 
cil of  Birth.]— T.,  a  German  by  birth,  came  to 
England  in  1734,  and  remained  there,  carrying 
on  business,  till  1779.    Soon  after  coming  to 

L  L  2 


1081      INTERNATIONAL    LAW— Jurisdiction  of  English  Courts.     1082 

under  the  circumstances  of  the  case,  it  had  bo 
discretion  in  the  matter,  bat  was  bound  to  make 
the  order,  though  the  action  might  be  stayed 
before  or  after  decree  if  it  appeared  that  pro- 
ceedings were  pending  in  a  Scotch  court  equally 
beneficial  to  the  plaintiff.  Dicta  of  Lord  West- 
bury  in  Brwhin  v.  Wylie  (10  H.  L.  Cas.  1)  dis- 
approved. Hiving  v.  Orr-Evoing^  9  App.  Cas.  U ; 
53  L.  J.,  Ch.  435  ;  50  L.  T.  401 ;  32  W.  R.  57*- 
H.  L.  (E.). 


England  he  lived  with  P.  as  his  wife,  and  by 
her  had  three  children,  born  in  1744,  1745, 
and  1747.  In  1749  he  married  W.,  and  by  her 
had  one  child,  G.  W.  died  in  1752,  and  in 
1755  he  married  P.,  and  by  her  had  four  more 
children.  In  1774  he  presented  a  petition  to  the 
council  of  Geneva,  which  he  described  as  "  his 
native  country,"  seeking  to  establish  the  legiti- 
macy in  Geneva  of  his  three  children  by  P.  born 
before  marriage,  by  reason  of  his  subsequent 
marriage  with  her,  and  the  council  made  an  order 
accordingly.  T.  died  in  1779  in  England,  having 
by  his  will  made  in  English  form,  described  him- 
self as  of  Tottenham,  in  Middlesex,  and  being 
possessed  of  leasehold  property  in  London.  A 
daughter  of  G.  had  died  intestate  a  domiciled 
Englishwoman,  and  it  became  necessary  to 
ascertain  who  were  her  next-of-kin,  and  the 
question  was,  whether  the  children  of  T.  by  P. 
born  before  marriage  were  legitimate  or  not : — 
Held,  that  T.  had  in  1744  acquired  an  English 
domicil,  and  the  legitimacy  of  his  children  by 
P.  must  be  determined  according  to  the  law  of 
the  place  where  their  parents  were  domiciled  at 
their  birth,  i.e.,  England,  and  that  those  born 
before  marriage  were,  therefore,  not  legitimate. 
Grove,  In  re,  Vaueher  v.  Solicitor  to  the  TVea- 
sury,  40  Ch.  D.  216  ;  58  L.  J.,  Ch.  57  ;  59  L.  T. 
587  ;  37  W.  R.  1— C.  A. 

Turkish  DomioU— British  Protected  Subject  J 
— The  testator,  a  member  of  the  Chaldean 
Catholic  community,  having  a  Turkish  domicil 
of  origin,  fixed  his  permanent  residence  in  Cairo, 
where  he  acquired  the  status  of  a  protected 
British  subject : — Held,  that  he  died  domiciled 
in  the  dominions  of  the  Porte,  and  that  the  con- 
sular court  at  Constantinople,  being  bound  by 
ss.  5  and  6  of  the  order  in  council  of  1873  to 
follow  the  same  principles  which  would  have 
been  observed  by  an  English  court  of  probate, 
was  right  in  holding  that  the  law  of  Turkey 
governing  the  succession  to  a  member  of  the 
Chaldean  Catholic  community  domiciled  in 
Turkey  should  be  followed  in  considering  the 
power  of  testacy  of  the  deceased  and  in  distribut- 
ing his  effects.  Abd-  Ul-MesHh  v.  Farra,  1 3  App. 
Cas.  431 ;  57  L.  J.,  P.  C.  88  ;  69  L.  T.  106— P.  C. 


IV.    JURISDICTION  OF  ENGLISH 
COURTS. 

Foreign  or  English  Domicil.]— See  supra,  II. 
and  III. 

Administration  Action— Scotch  Assets  of  Tes- 
tator domiciled  in  Scotland.]— An  action  was 
brought  in  England  by  an  infant  beneficiary  to 
administer  the  estate  of  a  testator  domiciled  in 
Scotland.  The  bulk  of  the  estate  was  in  Soot- 
land,  and  four  out  of  six  trustees  and  executors 
were  domiciled  there.  The  will  was  proved  both 
in  Scotland  and  England.  The  trustees  all  ap- 
peared to  the  writ,  without  protest,  and  at  their 
suggestion  an  inquiry  was  directed  whether  the 
action  was  for  the  plaintiff's  benefit,  which  re- 
sulted in  a  decision  that  it  was.  At  the  trial 
(the  English  assets  having  been  meanwhile 
transferred  to  Scotland)  the  trustees  objected  to 
the  jurisdiction  of  the  court.  No  proceedings  bad 
been  taken  to  administer  the  estate  in  the  Scotch 
court :— Held,  first,  that  the  court  had  jurisdic- 
tion to  order  an  administration  : — secondly,  that, 


Estate  of  domiciled  8cotch  Teatator- 

Trust  Funds  partly  in  Scotland  partly  in  Eng- 
land.]— A  resident  and  domiciled  Scotchman 
died  leaving  a  trust  disposition  and  settlement 
appointing  six  trustees :  three  were  resident  in 
Scotland,  one,  being  a  Scotch  member  of  Parlia- 
ment, resided  in  Scotland  when  Parliament  was 
not  sitting,  and  the  other  two  were  resident  in 
England.    The  truster  had  a  very  large  amount 
of  personalty  in  Scotland  as  well  as  heritable 
estate ;  and  a  trifling  amount  of  personal  estate 
only  in  England.    The  trustees  proved  the  trust 
deed  in  Scotland,  and  were  confirmed  as  execu- 
tors.   They  then  had  the  Scotch  probate  sealed 
in  accordance  with  21  &  22  Vict,  a  66,  s.  12,  and 
thus   became  the   personal   representatives  is 
England.    They  removed  all  bat  a  small  portion 
of  the  personalty  in  England  into  Scotland.   A 
person  resident  in  England,  who  was  entitled  to 
a  share  of  a  large  legacy,  and  also  to  a  share  of 
the  residue,  brought  an  action  in  England  to 
administer  the  estate.    The  trustees  were  served 
and  entered  an  appearance.    The  plaintiff,  an 
infant,  in  the  English  action  moved  for  judg- 
ment for  administration  of  the  whole  estate, 
and  on  the  29th  November,  1882,  the  Court  of 
Appeal  granted  the  order.    The  trustees  lodged 
an  appeal  to  this  House.    In  June,  1883,  the 
trustees  carried  certain  accounts  into  chambers 
in  the  English  action.    On  the  5th  July,  1883, 
four  of  the  residuary  legatees  commenced  this 
action  in  Scotland  against  the  trustees  for,  inter 
alia,  declarator  that  the  trustees  were  bound  to 
administer  the  estate  in  Scotland,  subject  to  the 
Scotch  law,  and  under  the  authority  and  juris- 
diction of  the  Scottish  courts  alone ;  and  that 
they  were  not  entitled  to  place  the  estate  under 
the  control  of  the  English  court  or  any  .other 
foreign   tribunal   furth  of   Scotland,  and  for 
interdict ;  or,  alternatively,  to  the  conclusion 
for  interdict  for  the  removal  of  the  trustees,  for 
sequestration  of  the  estate,  the  appointment  of  a 
judicial  factor,  and  for  interdict  until  the  estate 
should  be  vested  in  the  judicial  factor.    On  the 
30th  November,  1883,  this  House  affirmed  the 
order  of  the  Court  of  Appeal.    On  the  29th 
February,  1884,  the  Court  of  Session  granted  an 
interlocutor  finding  in  terms  of  the  declarator/ 
conclusions  of  the  summons :  sequestrating  the 
estate,  appointing  a  judicial  factor  and  inter- 
dicting the  trustees  from  removing  any  title- 
deeds,  <fcc.,  from    Scotland,  or   accounting  to 
anyone  otherwise  than  the  judicial  factor.    On 
appeal  taken  by  order  of  the  Court  of  Chancery 
in  England: — Held,  that   the   decemiture  in 
terms  of   the   declaratory  conclusions  of  the 
summons,  which  in  effect  affirms  the  exclusive 
competency  of  the  Scottish  jurisdiction,  was  not 
supported  by  statute  or  authority ;  and,  there- 
fore, that  part  of  the  principal  interlocutor  and 
that  part  of  the  interdict  relating  to  accounting 
must  be  reversed ;  but  the  remaining  portion  of 
the  principal  interlocutor  and  the  others  ap- 


1088      INTERNATIONAL  LAW— Jurisdiction,  of  English  Courts.      1084 


Doled  from  must  be  affirmed,  because  the 
Scotch  courts  had  (1)  full  jurisdiction  to 
sequestrate  the  estate  in  Scotland — the  persons 
of  the  trustees  and  the  trust  property  being 
there— and  to  appoint  a  judicial  factor ;  and  (2) 
because  in  the  circumstances  and  on  the  under- 
taking given  as  to  the  infant  plaintiff  becoming 
t  party  to  the  Scotch  administration,  a  prima 
£uie  case  of  convenience  in  favour  of  a  judicial 
administration  in  Scotland  had  been  made  out. 
Dicta  of  Lord  Cottenham,  in  Preston  v.  Melville 
(2  Bob.  App.  107),  explained,  and  of  Lord  West- 
bwy,  in  JBnohin  v.  Wylie  (10  H.  L.  C.  13),  dis- 
sented from.  Buying  v.  Orr-Ehoing,  10  App. 
Caa.  453 ;  63  L.  T.  826— H.  L.  (Sc). 

Liability  for  Waste  under  Implied  Con- 
tent—Tort — Actio   Personalis   moritur   cum 

Fttsani.] — The  possessor  of  Austrian  entailed 
estates  died  domiciled  in,  and  leaving  property 
in,  England.   By  the  law  of  Austria  the  possessor 
is  under  an  obligation  to  hand  over  the  property 
to  the  successor  in  as  good  a  state  as  when  he 
received    it,    and   is   liable    for   deterioration, 
whether  voluntary  or  permissive,  unless  it  occurs 
without  any  fault  of  his,  and  he  is  entitled  to 
compensation  for  improvements  made  by  him. 
The  successor   brought  a  creditor's   action  in 
England  against  the  English  executrix,  in  which 
it  was  admitted  by  the  parties  that  there  was 
some  deterioration,  and  also  that  some  improve- 
ments had  been  made.    The  court  below  made 
*  decree  for  administration  with  liberty  to  the 
plaintiff  to  take  proceeding*  in  the  courts  of  the 
countries  in  which  the  estates  were  situate,  to 
establish  the  amount  of  his  claim : — Held,  on 
sppeal,  that  the  objection  that  the  plaintiff's 
chum  was  for  a  tort  analogous  to  waste,  and 
therefore,  according  to  English  law,  died  with 
the  person,  and  could  not  be  enforced  in  an 
English  court,  was  not  sustainable,  for  that  the 
deteriorations  were  not  to  be  regarded  as  torts, 
hut  as  breaches  of  an  obligation  in  the  nature 
of  an  implied  contract ;  but  that  the  accounts  in 
an  administration  suit  ought  not  to  be  directed 
till  it  was  ascertained  that  a  sum  was  due  to  the 
plaintiff.     Batthyany  v.   Walford,  36  Ch.   D. 
»;  56  L.  J.,  Ch,  881 ;  57  L.  T.  206  ;  35  W.  R. 
S14-C.  A. 

Testator  domiciled  in  Jersey — Persons 

iatensted  under  Will  in  this  Country.]  — A 
testator  died,  domiciled  in  Jersey,  leaving  a 
widow  and  two  infant  children.  By  his  will 
he  gave  the  whole  of  his  personal  property, 
•object  to  a  certain  annuity  to  his  wife,  to  his 
children.  He  died  possessed  of  13,000Z.  of 
English  Consols,  and  also  of  certain  property  in 
Jersey.  The  principal  pari  of  the  latter  consisted 
of  a  share  in  the  property  of  a  certain  partner- 
ship, which  had  since  his  death  become  insolvent. 
His  widow  and  two  others  were  his  executrix  and 
executors.  A  gentleman  resident  in  Jersey  was 
shortly  after  the  testator's  death  appointed 
"tateur"  of  the  infant  children  in  accordance 
with  the  law  of  Jersey.  The  widow  married 
again,  and  with  the  two  children  came  to  reside 
in  Rngland.  An  action  was  commenced  in  the 
Chancery  Division  by  the  infant  children  for 
administration  of  the  testator's  real  and  personal 
estate,  and  for  the  appointment  of  guardians. 
Leave  was  given  for  the  service  of  the  writ  out 
of  the  jurisdiction  on  the  "  tuteur  "  and  executors 
in  Jersey  ;  bat  after  service,  and  before  appear- 


ance, they  moved  to  discharge  the  order,  on  the 
ground  that  the  proceedings  were  wrongly  insti- 
tuted in  this  country : — Held,  that  inasmuch  as 
the  plaintiffs  were  resident  in  England,  and  the 
bulk  of  the  property  was  in  England,  there  was 
no  reason  why  the  action  should  not  be  brought 
there.  Lane,  In  re,  Lane  v.  Robin,  55  L.  T.  149 
— Pearson,  J. 

Deceased   Domiciled  Abroad  —  Foreign 


Creditors.] — In  the  administration  in  England 
of  the  English  assets  of  a  foreigner  who  died 
domiciled  abroad,  no  priority  is  given  to  English 
creditors  over  foreign  creditors,  but  all  take 
pari  passu.  Klcsbe,  In  re,  Kannreuther  v.  Qeisel- 
brecht,  28  Ch.  D.  175  ;  54  L.  J.,  Ch.  297  ;  52  L.  T. 
19  ;  33  W.  R.  391— Pearson,  J. 

Distribution  of  Property — Decision  of 

Foreign  Tribunal.  1 — Although  the  parties  claim- 
ing to  be  entitled  to  the  estate  of  a  deceased 
person  may  not  be  found  to  resort  to  the  tribunals 
of  the  country  in  which  he  was  domiciled,  and 
although  the  courts  of  this  country  may  be 
called  upon  to  administer  the  estate  of  a  de- 
ceased person  domiciled  abroad,  and  may  in  such 
a  case  be  bound  to  ascertain  as  best  they  can  who 
according  to  the  law  of  the  domicil  are  entitled 
to  the  estate,  yet  where  the  title  has  been  adjudi- 
cated upon  by  the  courts  of  the  domicil,  such  ad- 
judication is  binding  upon  and  must  be  followed 
by  the  courts  of  this  country,  JBnohin  v.  Wylie 
(10  H.  L.  C.  1),  Ewing  v.  Orr-Ewing  (10  App. 
Cas.  453),  Doglioni  v.  Crispin  (1  L.  R.,  H.  L. 
301)  ;  even  if  the  judgment  of  the  foreign  court 
has  by  the  default  of  the  party  complaining  of 
the  judgment  proceeded  on  a  mistake  as  to  the 
English  law,  Castrique  v.  Imrie  (4  L.  R.,  H.  L. 
414),  Qodard  v.  Gray  (6  L.  R.,  Q.  B.  139),  or 
the  whole  of  the  facts  were  not  before  the  foreign 
tribunal  {Be  Cone  Britsac  v.  Rathbone,  6  H.  & 
N.  301) ;  for  the  courts  of  this  country  do  not 
sit  to  hear  appeals  from  foreign  tribunals,  and  if 
the  decision  of  the  foreign  tribunal  is  wrong, 
recourse  must  be  had  to  the  mode  of  appeal  pro- 
vided in  the  foreign  country  {Bank  of  Austral- 
asia v.  Nia$,  16  Q.  B.  717).  Tru/ort,  In  re, 
Trafford  v.  Blanc,  36  Ch.  D.  600  ;  57  L.  J.,  Ch. 
135  ;  57  L.  T.  674  ;  36  W.  R.  163— Stirling,  J. 

Payment  out  of  Court — Attainment  of  Ago 
according  to  Law  of  Domicil.] — Funds  in  court 
in  this  country,  placed  to  the  separate  credit  of 
an  infant  domiciled  abroad,  were  paid  out  to  her 
on  attaining  her  full  age,  according  to  the  law  of 
her  then  and  native  domicil,  although  she  had 
not  come  of  age  according  to  English  law. 
Donohoe  v.  Donohoe,  19  L.  R.,  Ir.  349— V.-C. 

Winding  up — Foreign  Company.] — See  Com- 
pany, XL  1. 

Restraining    Creditors     and    Actions 

abroad.]— See  Company,  XI.  4. 

Restraining  Actions  abroad  when  Action 
pending  hero.]— See  Practice  (Staying  Pro- 
ceedings). 


V.   CONTRACTS. 

Referenoe  to  Foreign  Law.] — A  reference  to 
foreign  law  in  any  English  contract  does  not 
incorporate  the  foreign  law,  but  merely  affects 


1085 


INTERNATIONAL  LAW— Contracts. 


1086 


the  interpretation  of  the  contract.  Dever,  Em 
parte,  Suae,  In  re,  18  Q.  B.  D.  660 :  66  L.  J., 
Q.  B.  562—0.  A. 

Marriage  Settlement — English  Husband  and 
Sootoh  Wife— Scotch  Form— Lex  loci.]— In  1849 
an  Englishman  domiciled  in  England  married 
a  Scotch  lady  in  Scotland.  Previously  to  the 
marriage  the  parties  executed  a  "contract  of 
marriage"  in  the  Scotch  form.  The  intended 
hnsband  thereby  bound  himself,  his  heirs,  exe- 
cutors, and  successors,  to  pay  to  the  intended 
wife,  in  case  she  should  survive  him,  an  annuity 
of  2001.,  and  further  to  pay  3,0002.  to  the  children 
of  the  marriage  after  his  death.  After  the  mar- 
riage the  parties  resided  in  England.  In  1870 
the  husband  died  there,  having  by  his  will,  dated 
in  1863,  but  which  did  not  Si  any  way  refer  to 
the  marriage  contract,  given  his  residuary  estate 
to  trustees  upon  trust  to  pay  the  income  thereof 
to  his  wife  for  life,  with  remainder  as  to  the 
capital  to  his  children  equally  at  twenty-one. 
The  wife  died  in  England  in  1886,  having  made 
a  will  appointing  executors.  During  her  widow- 
hood she  never  received  the  annuity  under  the 
contract,  but  enjoyed  the  income  of  her  hus- 
band's residuary  estate.  There  were  two  children 
of  the  marriage,  both  of  whom  survived  their 
father,  but  predeceased  their  mother,  having 
attained  twenty-one.  The  husband's  estate  being 
insufficient  to  satisfy  both  the  arrears  of  the 
widow's  annuity  and  the  3,0002.  payable  to  the 
children,  the  question  was  raised,  by  originating 
summons,  whether  the  contract  was  to  be  con- 
strued according  to  Scotch  law  (under  which 
the  provision  of  an  annuity  to  the  wife  on 
marriage  imports  a  jus  crediti  in  her  favour, 
entitling  her  to  rank  pari  passu  with  her  hus- 
band's other  creditors,  the  children  having  only 
a  spes  successionis),  or  according  to  the  English 
law  : — Held,  that  the  intention  of  the  parties  on 
entering  into  the  contract  must  be  considered  ; 
that  the  fact  that  it  was  entered  into  in  the 
Scotch  form  led  to  the  inference  that  it  was 
to  be  construed  not  according  to  the  law  of 
England,  but  according  to  the  law  of  Scotland ; 
and  that  the  case  was  governed  by  Chtepratte  v. 
Young  (4  De  G.  &  Sm.  217),  and  that,  there- 
fore, as  the  husband's  assets  were  not  more 
than  enough  to  satisfy  the  paramount  claim  of 
the  wife's  representatives  to  the  arrears  of  her 
annuity,  the  claim  of  the  children  in  the  division 
of  the  assets  failed.  Barnard,  In  re,  Barnard 
v.  White,  W  L.  T.  9— Kay,  J. 

Englishwoman  with  Foreign  Husband.  ] — 

By  a  settlement  made  in  1881,  upon  the  marriage 
of  an  English  lady  with  a  Spaniard,  certain  real 
estate  in  England,  the  property  of  the  lady,  was, 
with  the  approbation  of  the  intended  husband, 
"  given  in  consideration  of  the  renunciation  that 
day  executed  by  her  of  any  rights  which  she 
would  otherwise  have  acquired  by  marriage  in 
her  husband's  property  according  to  the  law  of 
Spain,"  conveyed  to  a  trustee  to  such  uses  as  she 
should,  notwithstanding  coverture,  by  deed 
appoint.  And  it  was  thereby  declared  that  the 
settlement  was  to  be  construed  according  to  the 
law  of  England.  By  an  indenture  dated  the  23rd 
of  February,  1882,  the  wife,  with  the  consent  of 
her  husband,  appointed  the  real  estate  to  a  trustee 
in  fee,  upon  trust  to  sell  and  to  stand  possessed 
of  the  proceeds  of  sale  in  trust  for  such  persons 
as  "  she  should  at  any  time  thereafter  by  any 


writing  appoint " ;  and,  in  default  of  appoint- 
ment, in  trust  for  her  separate  use.  The  wife 
died  in  June,  1882,  without  children,  having,  by 
her  will,  made  immediately  after  her  marriage, 
given  four-fifths  of  her  real  and  personal  estate, 
in  case  she  should  leave  no  children,  to  ber 
husband  absolutely.  According  to  the  law  of 
Spain,  as  she  had  died  without  children,  two- 
thirds  of  her  property  belonged  to  her  parents  :— 
Held,  that  the  deed  of  February,  1882,  must  be 
construed  according  to  English  law.  Hermutdo, 
In  re,  Hernando  v.  Sawtell,  27  Ch.  D.  284 ;  &S 
L.  J.,  Ch.  866  ;  61  L.  T.  117  ;  33  W.  R.  252- 
Peerson,  J. 

-Infant  domiciled  abroad.  ] — The  appellant, 


the  widow  of  a  domiciled  Scotchman,  brought  an 
action  in  the  Court  of  Session,  for  the  redaction 
of  an  ante-nuptial  contract,  by  which  in  con- 
sideration of  a  provision  made  by  her  husband 
she  purported  to  .discharge  her  legal  rights  of 
terce  and  jus  relict©.    The  contract  was  executed 
in  Ireland  by  the  appellant,  who  was  then  an 
infant  domiciled  in  Ireland,  but  it  was  contem- 
plated that  she  and  her  husband  should  reside, 
and  they  actually  resided,  during  their  married 
life  in  Scotland.    The  grounds  upon  which  the 
appellant  sought  to  obtain    reduction  of  the 
contract  were,  that  being  an  infant  she  was 
incapable  of  contracting  by  the  law  of  Ireland^ 
and  minority  and  lesion  according  to  the  law  of 
Scotland  : — Held,  that  the  capacity  of  the  ap- 
pellant to  bind  herself  by  the  marriage  contract 
must  be  determined  by  the  law  of  her  domicil 
(Le.,  the  Irish  or  English  law),  and  that  under 
such  law  she  could  not  as  an  infant  incur  an 
obligation  which  was  not  shown  to  be  for  her 
benefit,  and  that  she  was  therefore  at  liberty  to 
avoid  the  contract  and  claim  her  legal  rights  as 
a  Scotch  widow.     Cooper  v.  Cooper,  13  App.Cas. 
88  ;  69  L.  T.  1— H.  L.  (Sc.)     See  also,  <W* 
Trusts,  In  re,  ante,  col.  1029. 

Marriage  in  uncivilised  Country  between 
domiciled  Englishman  and  Woman  of  barbarou 
Tribe— Bative  Customs.] — A  onion  formed  be- 
tween a  man  and  a  woman  in  a  foreign  country, 
although  it  may  there  bear  the  name  of  a  mar- 
riage, and  the  parties  to  it  may  there  be 
designated  husband  and  wife,  is  not  a  valid 
marriage  according  to  the  law  of  England,  unless 
it  is  formed  on  the  same  basis  as  marriages 
throughout  Christendom,  and  be  in  its  essence 
the  voluntary  union  for  life  of  one  man  and  one 
woman  to  the  exclusion  of  all  others.  Betkeil, 
In  re,  Bet  hell  v.  Htidyard,  38  Ch.  D.  220 ;  ©7  L 
J.,  Ch.  487 ;  58  L.  T.  674  ;  36  W.  R.  50&- 
Stirling,  J. 

C.  B.,  an  Englishman,  in  1878  went  to  South 
Africa,  and  while  there  married  T.,  a  woman  of 
a  semi-barbarous  tribe,  according  to  the  native 
customs.  No  religious  form  or  ceremony  was 
gone  through,  and,  beyond  the  taking  of  the 
woman,  the  native  ceremony  consisted  simply  in 
the  bridegroom  slaughtering  an  ox  and  sending 
the  head  to  the  bride's  parents.  By  the  custom 
of  the  tribe  polygamy  was  practised,  but  C.  B. 
never  had  more  than  the  one  wife,  whom  he  took 
to  his  house,  and  he  continued  to  live  with 
her  alone  until  1884,  when  he  was  killed  white 
fighting  with  the  Boers.  Ten  days  after  his 
death  T.  gave  birth  to  a  female  child.  C.  B. 
kept  up  communication  with  various  membeis 
of  his  xamily  in  England,  but  never  mentioned 


r 


1087 


INTERNATIONAL    LAW— Foreign  Judgment*. 


1038 


his  marriage,  and  by  a  testamentary  document 
he  made  some  provisions  out  of  his  property  in 
Sooth  Africa  for  T.,  and  any  child  which  she 
might  have  by  him.  Under  the  will  of  his  father 
he  was  entitled  to  real  estate  in  England  for  life, 
with  remainder  to  his  children,  with  remainder 
orer  in  default  of  issue : — Held,  that  the  union 
between  C.  B.  and  T.  was  not  a  valid  marriage 
according  to  the  law  of  England.    lb. 

101  of  Exchange— Foreign  Endorsement.]— 
Bills  of  exchange  were  drawn  in  France  by  a 
domiciled  Frenchman  in  the  French  langauge, 
in  English  form,  on  an  English  company,  who 
duly  accepted  them.  The  drawer  indorsed  the 
bills  and  sent  them  to  an  Englishman  in  England  : 
—field,  that  the  acceptor  could  not  dispute  the 
negotiability  of  the  bills  by  reason  of  the  indorse- 
ments being  invalid  according  to  French  law. 
Marseilles  Extension  Railway  and  Land  Com- 
pony,  9mallpaae  and  Brandon,  In  re,  30  Ch.  D. 
m ;  55  L.  J.,  Ch.  116— Pearson  J. 

Assignment  of  Policy  of  Assurance —  Lex 
LJ— The  plaintiff  sued  the  trustees  of  an 
English  life  assurance  company  as  assignee  from 
her  husband  of  a  policy  of  life  assurance  granted 
bj  the  company.  The  assignment  to  the  plaintiff 
was  made  in  Cape  Colony,  the  assignor  being 
then  domiciled  in  that  colony,  where  he  remained 
until  death.  By  the  law  of  Cape  Colony  such 
an  assignment  was  void,  because  the  assignee 
was  the  wife  of  the  assignor  : — Held,  that  the 
law  of  Cape  Colony  applied  to  the  assignment 
of  the  policy,  and  that  the  defendants  were 
entitled  to  judgment  Lee  v.  Abdy,  17  Q.  B.  D. 
309 ;  55  L.  T.  297 ;  34  W.  R.  663— D. 

Contract  of  Affreightment— Law  of  the 
lag— Lax  loci— Charter-party.] — A  claim  was 
made  by  an  American  citizen  in  the  winding-up 
of  a  British  steamship  company  for  damages  for 
loss  of  his  cattle  arising  through  the  negligence 
of  the  master  and  crew.  The  ship  in  which  the 
cattle  were  carried  was  a  British  ship  trading 
between  Boston  and  Liverpool.  The  charter- 
party  contained  express  stipulations  exempting 
the  company  from  liability  caused  by  the  negli- 
gence of  the  master  and  crew.  The  cattle  were 
shipped  at  Boston,  and  bills  of  lading  were  given 
there,  in  conformity  with  the  contract.  The 
ship  stranded  on  the  coast  of  North  Wales,  owing, 
as  was  admitted,  to  the  negligence  of  the  master 
and  crew.  According  to  the  law  of  the  State  of 
Massachusetts,  as  at  present  ascertained,  the 
stipulations  exempting  the  owners  from  liability 
through  negligent  navigation  were  void ;  but 
according  to  English  law  such  stipulations  were 
good,  and  were  usually  inserted  in  English  bills 
of  lading.  The  question  was  whether  the  law  of 
the  flag  (that  is  to  say,  the  personal  law  of  the 
shipowner)  or  the  lex  loci  contractus  should 
govern  the  contract  of  affreightment : — Held,  on 
toe  authority  of  Lloyd  «.  Quibert,  (1  L.  R.,  Q.  B. 
115),  that  the  stipulations  were  valid,  first  on  the 
general  ground  that  the  contract  was  governed 
by  the  law  of  the  flag ;  and,  secondly,  on  the 
particular  ground  that  from  the  special  provisions 
of  the  contract  itself  it  appeared  that  the  parties 
were  contracting  with  a  view  to  the  Law  of 
England.  Missouri  Steamship  Company,  Mon- 
ths Claim,  In  re,  58  L.  T.  377  ;  6  Asp.  M.  264 
— Chitty,  J.    Affirmed,  37  W.  B.  696— C.  A. 


Hade  in  England  between  Xerehanta  residing 
there,  for  Delivery  in  London  of  Goods  shipped 
Abroad  by  Foreign  Company— Vis  major.] — 
The  defendants,  a  London  firm,  contracted  in 
London  to  sell  to  the  plaintiffs,  merchants  in 
London,  20,000  tons  of  Algerian  esparto,  to  be 
shipped  by  a  French  company  at  an  Algerian 
port,  at  certain  prices,  according  to  specified 
qualities,  on  board  vessels  to  be  provided  by  the 
plaintiffs  in  London,  and  to  be  paid  for  by  the 
plaintiffs  in  London  by  cash  on  or  before  arrival 
of  the  ship  or  ships  at  her  or  their  port  of  desti- 
nation, less  interest  at  5  per  cent,  per  annum  for 
the  unexpired  portion  of  three  months  from  date 
of  bill  of  lading,  for  the  full  amount  of  the 
invoice  based  on  shipping  weight.  The  de- 
fendants caused  to  be  delivered,  and  were  paid 
for,  9,000  tons  of  esparto,  but  failed  to  deliver 
the  remaining  11,000  tons.  In  an  action  for  this 
breach  of  contract : — Held,  that  the  contract 
was  an  English  contract  and  to  be  construed 
and  dealt  with  according  to  the  law  of  this 
country ;  and  consequently,  that  it  was  no 
answer  to  say  that  by  the  French  law  (which 
prevailed  at  the  port  of  shipment)  the  defendants 
were  excused  from  performing  their  contract  if 
prevented  from  so  doing  by  "force  majeure," 
viz.,  the  prohibition  by  the  constituted  authori- 
ties of  the  export  of  esparto  from  Algeria,  by 
reason  of  an  insurrection  and  consequent  hostili- 
ties in  that  country.  Jacobs  v.  Criait  Lyonnais, 
12  Q.  B.  D.  589  ;  53  L.  J.,  Q.  B.  156 ;  50  L.  T. 
194 ;  32  W.  R.  761— C.  A. 

Certificates  negotiated  in  England— Foreign 
Securities.] — In  an  action  to  determine  whether 
a  bank  were  entitled  to  certain  certificates  of 
American  securities  : — Held,  that  as  the  question 
whether  the  bank  was  to  be  deemed  rightfully 
in  possession  of  the  certificates  turned  upon 
transactions  in  England  it  was  to  be  decided  by 
English  and  not  by  American  law,  though  the 
consequences  of  being  rightfully  in  possession  of 
them  depended  on  American  law.  Williams  v. 
Colonial  Bank,  38  Ch.  L.  388  ;  57  L.  J.  Ch.,  826 ; 
69  L.  T.  643  ;  36  W.  R.  625— C.  A. 


VI.  FOREIGN  JUDGMENTS. 

Action  on — Ord.  XIV.] — An  action  upon  a 
foreign  judgment  is  an  action  for  debt  arising 
out  of  a  contract  within  the  meaning  of  Ord.  III. 
r.  6,  in  which  leave  may  be  given  to  the  plaintiff 
under  Ord.  XIV.  to  sign  final  judgment  for  the 
amount  claimed.  JBodsoll  v.  Baxter  (28  L.  J., 
Q.  B.  61)  followed.  Qrant  v.  East  on,  13  Q.  B.  D. 
302  ;  53  L.  J.,  Q.  B.  68  ;  49  L.  T.  646  ;  32  W.  B. 
239— C.  A. 

Two  kinds  in  Spain— Judgment  not  final.] — 
According  to  the  law  of  Spain  a  person  in  whose 
favour  documents  of  a  certain  class  have  been 
executed  can  commence  "  executive  "  proceedings 
in  which  the  defendant  can  only  plead  defences 
not  disputing  the  original  right  of  action,  and 
the  plaintiff,  if  successful,  obtains  a  "  remate  " 
judgment,  which  is  an  order  for  execution  to 
issue  for  a  sum  of  money  and  costs.  A  "remate  " 
judgment  does  not  preclude  either  party  from 
taking  "  plenary  "  or  M ordinary"  proceedings  as 
to  the  same  subject-matter,  and  in  such  ordinary 
proceedings  all  defences  are  open,  and  neither 
party  can  set  up  the  "  remate  "  judgment  as  a 


1089 


INTERPLEADER. 


1040 


res  judicata,  or  even  as  giving  him  a  prima  facie 
case,  and  the  rights  of  the  parties  are  not  affected 
by  it.  The  plaintiff  can,  however,  on  giving 
security,  enforce  the  "  remate"  judgment  though 
plenary  proceedings  are  pending : — Held,  that  a 
"  remate  "  judgment,  as  it  did  not,  according  to 
the  law  of  Spain,  decide  the  rights  of  the  parties, 
was  not  a  final  and  conclusive  judgment  which 
could  be  sued  upon  in  this  country,  and  did  not 
enable  the  plaintiff  to  maintain  a  suit  here  for 
administration  of  the  estate  of  the  defendant  in 
the  executive  proceedings  who  had  since  died. 
Henderson,  In  re,  Nouvion  v.  Freeman,  37  Oh.  D. 
244  ;  67  L.  J.,  Ch.  367  ;  68  L.  T.  242—0.  A. 

On  what  Grounds  impeached  in  English 
Courts.] — A  foreign  judgment  cannot,  as  between 
the  same  parties,  be  impeached  in  this  country 
on  the  ground  that  it  proceeded  on  a  mistake  of 
law.  A  foreign  judgment  binds,  notwithstanding 
the  discovery  of  fresh  evidence,  for  the  courts  of 
this  country  will  not  either  re-hear  cases  tried 
by,  or  hear  appeals  from  foreign  tribunals  ;  and 
if  the  judgment  of  a  foreign  court  is  erroneous, 
the  regular  mode  provided  by  every  system  of 
jurisprudence,  of  procuring  it  to  be  examined 
and  reversed,  ought  to  be  followed.  Tru/ort, 
In  re,  Trafford  v.  Blanc,  36  Ch.  D.  600 ;  67 
L.  J.,  Ch.  135  j  57  L.  T.  674 ;  36  W.  R.  163— 
Stirling,  J. 

Defendant's  Appearance  to  Protect  Property 
from  Seizure.] — It  is  no  answer  to  an  action 
upon  the  judgment  of  a  foreign  court  that  at 
the  time  of  the  proceedings  in  the  foreign  court 
the  defendant  was  not  resident  or  domiciled  or 
under  allegiance  in  the  foreign  country,  and 
appeared  in  the  foreign  court  as  defendant 
merely  to  protect  his  property  from  seizure  in 
case  judgment  by  default  should  be  given  against 
him  in  the  foreign  court.  Voinet  v.  Barrett,  55 
L.  J.,  Q.  B.  39  ;  34  W.  R.  161— C.  A. 

Only  Evidence  of  Debt.] — A  foreign  judgment 
is  only  evidence  of  a  debt.  Hawksford  v.  Gif- 
ford,  12  App.  Cas.  122 ;  66  L.  J.,  P.  C.  10 ;  56 
L.  T.  32— P.  C. 


INTERPLEADER. 

1.  In  what  Cases. 

2.  Practice. 

3.  Appeal. 

1.    In  what  Cases. 

Sheriff— Money  paid  without  Levy.]- Where 
the  sheriff  seized  goods  under  a  fi.  fa.,  and  a 
person  other  than  the  person  against  whom  the 
process  issued  claimed  the  goods  and  paid  out 
the  sheriff  under  protest : — Held,  that  the  money 
so  paid  to  the  sheriff  under  protest  was  the 
proceeds  of  goods  taken  in  execution  within  the 
meaning  of  Ord.  LVII.  r.  1  (b.),  and  that  there- 
fore the  sheriff  was  entitled  to  interplead  in 
respect  thereof.  Smith  v.  Critchfield,  14  Q.  B. 
D.  873 ;  54  L.  J.,  Q.  B.  366 ;  64  L.  T.  122 ;  33 
W.  R.  920—0.  A. 


Stakeholder — Part  only  of  a  single  Claim- 
Staying  Proceedings.] — A  debtor  against  whom 
an  action  has  been  brought,  and  who  has  had 
notice  of  assignment  of  the  debt,  may  inter- 
plead as  to  part  only  of  the  claim,  and  may  dis- 
pute the  residue.  His  application  for  relief  may 
either  be  made  in  the  action  under  Ord.  LVII. 
rr.  1,4,  or  by  a  separate  proceeding  under  a  25, 
sub-s.  6,  of  the  Judicature  Act,  1873.  If  an 
interpleader  order  be  made  on  a  separate  pro- 
ceeding under  8.  25,  sub-s.  6,  of  the  Judicature 
Act,  1873,  the  judge  making  the  order  has  no 
power  to  stay  the  proceedings  in  an  action 
already  commenced  against  the  debtor.  Beading 
v.  London  School  Board,  16  Q.  B.  D.  686 ;  54 
L.  T.  678  ;  34  W.  R.  609— D. 


Indemnity   to— Objection   by  Claimant 


indemnifying  to  Issue.] — The  objection  that  a 
stakeholder  has,  by  merely  taking  an  indemnity 
from  one  of  two  rival  claimants  to  property  in 
his  hands,  disentitled  himself  to  relief  under  the 
Interpleader  Acts  because  he  has  identified  him- 
self with  and  must  be  taken  to  "  collude  n  with 
the  claimant  who  gave  the  indemnity,  cannot  be 
raised  by  that  claimant  himself,  and  the  deci- 
sions in  Tucker  v.  Morris  (1  Cr.  &  M.  73),  and 
Belcher  v.  Smith  (9  Bing.  82),  do  not  apply. 
Thompson  v.  Wright,  13  Q.  B.  D.  632 ;  64  L.  J., 
Q.  B.  32  ;  51  L.  T.  634  ;  33  W.  R.  96— D, 

Liverpool  Court  of  Passage — Jurisdiction.]— 

The  rules  of  the  Court  of  Passage  do  not  give 
that  court  the  jurisdiction  in  interpleader  con- 
tained in  Ord.  LVII.  r.  8,  of  the  rules  of  the 
Supreme  Court,  1883,  and  that  even  if  rules  bad 
been  framed  to  that  effect  they  could  not  give 
such  a  jurisdiction,  as  they  would  be  in  that 
respect  ultra  vires.  The  power  to  decide  sum- 
marily without  consent  questions  in  interpleader 
is  not  a  "  rule  of  law  "  within  the  meaning  of  a 
91  of  the  Judicature  Act,  1873.  Speers  v.  Daggert, 
1  C.  &  B.  60S-  Wills,  J. 


Protection  of  Officers.] — Officers  of  the 


court  are  not  protected  in  the  case  of  process 
executed  under  an  interpleader  order  made  with- 
out jurisdiction,  though  good  on  the  face  of  it,  if 
such  order  was  obtained  on  their  own  applica- 
tion. The  relief  or  remedy,  the  power  to  grant 
which  is  conferred  on  superior  courts  by  a  89  of 
the  Judicature  Acts,  1873,  only  refers  to  the 
relief  and  remedies  to  be  administered  in  the 
action,  and  as  the  result  of  the  action,  and  not 
to  an  incidental  and  extraneous  proceeding 
arising  out  of  the  levy  of  execution,  such  as 
interpleader.    lb. 


2.  Practice. 

Service  of  Summons  out  of  the  Jurisdiction.] 
— Where  the  plaintiffs  sued  for  goods  in  the  pos- 
session of  the  defendant,  and  it  appeared  that  a 
foreigner  residing  out  of  the  jurisdiction  claimed 
the  right  to  the  same  goods,  and  would  probably 
sue  the  defendant  in  respect  of  them,  the  court 
gave  the  defendant  leave  to  serve  an  inter- 
pleader summons  out  of  the  jurisdiction  upon 
the  foreigner.  The  effect  of  service  out  of 
the  jurisdiction  in  such  a  case  is  to  give  the 
foreigner  notice  of  the  proceedings  within  the 
jurisdiction,  so  that  he  may  appear  and  prose- 
cute his  claim,  or,  if  he  does  not  appear,  so  that 


1041 


INTEKPLEADER. 


1042 


any  f utore  claim  prosecuted  by  him  against  the 
defendant  in  respect  of  the  subject-matter  of 
the  action  within  the  jurisdiction  may  be  barred. 
Credit*  Qer%*deu*e  v.  Van  Weede,  12  Q.  B.  D. 
171 ;  53  L.  J.,  Q.  B.  142  ;  32  W.  R.  414  ;  48  J.  P. 
184-D. 

fanmons — Particulars  of  Claim.] — Where, 
upon  an  interpleader  summons  by  the  sheriff,  a 
claimant  alleges  that  he  is  entitled,  under  a  bill 
of  sale,  or  otherwise  by  way  of  security  for  a  debt, 
to  the  goods  seized  in  execution,  and  an  order  is 
made  for  the  sale  of  the  goods  and  the  satisfac- 
tion of  the  claim  out  of  the  proceeds  of  the  sale, 
the  claimant  is  not  entitled  to  demand  from  the 
sheriff  any  sum  not  included  in  the  particulars 
of  claim  on  which  the  order  was  made.  Hockey 
t.  Beans,  18  Q.  B.  D.  390  ;  56  L.  J.,  Q.  B.  263  ; 
56  L.  T.  179 ;  35  W.  R.  265— C.  A. 

floods  taken  in  Execution— Bight  of  Third 
Party.  1— On  an  interpleader  issue  with  regard 
to  goods  taken  in  execution,  where  the  evidence 
shows  that  the  claimant  had  not  any  interest  in 
dot  the  possession  of  the  goods  at  the  time  of 
seizure,  but  they  belonged  to  a  third  person,  the 
execution  creditor  is  entitled  to  succeed.  On  an 
interpleader  issue  between  the  execution  creditor 
and  a  claimant  the  facts  were  as  follows :— The 
claimant,  haying  let  the  goods  afterwards  taken 
in  execution,  for  hire,  became  bankrupt.  He 
did  not  inform  the  trustee  in  bankruptcy  that 
he  owned  these  goods,  and  the  hirer  of  the  goods, 
being  unaware  of  the  bankruptcy,  continued 
to  pay  the  claimant  money  for  the  hire  of  them. 
The  goods,  while  in  the  possession  of  the  hirer, 
were  taken  in  execution  under  a  judgment 
against  him : — Held,  that  upon  the  above  facts, 
aauming  the  execution  debtor  to  be  estopped 
from  denying  that  the  goods  were  the  claimant's, 
such  estoppel  did  not  bind  the  execution  credi- 
tor, and  tne  claimant  had  no  title  to  the  goods 
is  against  the  execution  creditor,  who  was  there- 
fore entitled  to  judgment  on  the  issue.  Bichards 
v.  Jenkins,  18  Q.  B.  D.  461  ;  56  L.  J.,  Q.  B.  293  ; 

56  L.  T.  591 ;  35  W.  R.  255— C.  A. 

tens  of  Proof— Issue  between  Trustee  for 
Creditors  and  Execution  Creditor— Irrevocability 
of  Deed.]—  When  a  debtor  has  made  an  assign- 
ment of  nis  property  to  a  trustee  for  the  benefit 
of  his  creditors  generally,  and  when  the  trustee 
sets  op  this  deed  of  assignment  against  an  exe- 
cution creditor,  the  onus  of  proving  that  the 
deed  is  irrevocable  and  binding,  as  against  such 
execution  creditor,  lies  on  the  trustee ;  that  is, 
the  trustee  has  to  prove  that  the  deed  has  gone 
beyond  the  stage  of  being  revocable,  by  showing 
that  it  has  been  communicated  to  a  creditor,  and 
assented  to,  or  at  least  not  dissented  from,  by 
him.  The  burden  of  giving  such  affirmative 
evidence  lies  on  the  person  setting  up  the  deed 
against  the  execution  creditor.    Adnitt  v.  Hands, 

57  L.  T.  370— D. 

Isle  by  Sheriff — Bankruptcy  of  Execution 
Netw— Bight  to  Proceeds.]— See  Bankruptcy, 
XL,  1. 

leetiver  and  Manager  instead  of  Sale.]— An 
interpleader  issue  being  ordered  to  try  the  right 
to  goods  seized  in  execution,  the  court  or  a 
judge  may,  under  the  Judicature  Act,  1873, 
a-  25,  sub-s.  8,  and  Ord.  LVII.  r.  15,  order  that, 
instead  of  a  sale  by  the  sheriff,  a  receiver  and 


manager  of  the  property  be  appointed.    Howell 
v.  Dawson,  13  Q.  B.  D.  67— D. 

Withdrawal  of  Sheriff  by  Consent— Goods  in 
Custodia  legis.  I  —  Where,  after  the  making 
of  an  interpleader  order,  the  sheriff,  with  the 
consent  of  the  execution  creditor  and  the 
claimant,  temporarily  withdrew  from  posses- 
sion:—Held,  that  the  goods  were  no  longer 
in  custodia  legis,  and  that  the  landlord  was 
entitled  to  distrain  upon  them,  although  he 
knew  that  the  interpleader  proceedings  were 
pending.  Cropper  v.  Warner,  1  0.  &  E.  152 — 
Williams,  J. 

Order  resoinded— Liability  of  Sheriff]— Where 
an  interpleader  order  provided  that  no  action 
should  be  brought  against  the  sheriff,  and  the 
order  was  subsequently  rescinded,  owing  to  the 
default  of  the  execution  creditor  to  return  the 
issue :— Held,  that  the  claimant  had  no  cause 
of  action  against  the  sheriff  for  the  original 
seizure.  Martin  v.  Trittor*  1  0.  &  E.  226— 
Lopes,  J. 

Protection  of  8heriff  against  Action  for 
Trespass.] — Where  the  sheriff  in  the  execu- 
tion of  a  fi.  fa.  enters  the  premises  of  a 
person  other  than  the  execution  debtor,  and 
there  seizes  goods,  believing  erroneously  that 
such  goods  belong  to  the  execution  debtor, 
the  sheriff  may,  upon  interpleader  proceed- 
ings, be  protected  against  an  action  for  tres- 
rto  the  land  as  well  as  against 'an  action 
seizure  of  the  goods,  if  no  substantial 
grievance  has  been  done  to  the  person  whose 
premises  are  wrongfully  entered.  Hollier  v. 
Laurie  (3  C.  B.  334)  discussed  and  Winter  v. 
Bartholomew  (11  Ex.  704)  approved.  Smith  v. 
Critchfield,  14  Q.  B.  D.  873  ;  54  L.  J.,  Q.  B. 
366 ;  33  W.  R.  920—0.  A.  See  also  Speers  v. 
Baggers,  supra. 

Security  for  Costs.}— The  rules  in  regard  to 
security  for  costs  on  interpleader  issues  follow 
the  analogy  of  the  rules  on  the  same  subject  in 
actions,  and  no  special  jurisdiction  to  require 
security  for  costs  in  interpleader  is  given 
by  Ord.  LVII.  r.  15.  Bhodes  v.  Bawson,  16 
Q.  B.  D.  548  ;  55  L.  J.,  Q.  B.  134 ;  34  W.  R. 
240—0.  A. 

In  an  interpleader  issue  directed  upon  an 
application  by  a  sheriff,  who  has  received  a 
notice  of  a  claim  to  goods  seized  by  him  under  a 
writ  of  fieri  facias  in  execution  of  a  judgment, 
both  the  plaintiff  and  the  defendant  in  the  issue 
are  really  in  the  position  of  the  plaintiffs  in  an 
ordinary  action,  and,  therefore,  the  defendant  in 
the  interpleader  issue  may  be  ordered  to  give 
security  tor  costs  in  any  case  in  which  a  plain- 
tiff may  be  so  ordered,  and  the  rule,  that  a 
defendant  cannot  be  compelled  to  give  security 
for  costs,  does  not  apply.  Tomlinso-n  v.  Land 
and  Finance  Corporation,  14  Q.  B.  D.  539 ;  53 
L.  J.,  Q.  B.  561— C.  A. 

Costs — Form  of  Order— Sheriff] — Where  an 
interpleader  has  been  directed  on  the  application 
of  the  sheriff,  and  the  claim  of  the  third  party 
fails,  the  strict  form  of  order,  upon  which  the 
sheriff  is  entitled  to  insist,  is  to  direct  the  execu- 
tion creditor  to  pay  the  sheriffs  charges  of  the 
interpleader,  witn  a  remedy  over  to  the  execution 
creditor  against  the  third  party,  though  it  is  a 


1 


1048 


INTERPLEADER. 


1041 


common  form  of  order  simply  to  order  the  third 
party  to  pay  them  to  the  sheriff.  Smith  v.  Barlow, 
26  Ch.  D.  605  ;  53  L.  J.,  Ch.  696  ;  50  L.  T.  571 ; 
32  W.  B.  665— C.  A. 

Power  of  Master  to  award  in  Action.]— 

Under  the  Rules  of  1883,  Ord.  LIV.  r.  12  (i), 
limiting  the  power  of  the  master  to  award  costs 
other  than  those  of  any  proceedings  before  him 
or  specially  authorised — the  master  in  making 
an  order  barring  the  claimant  upon  an  inter- 
pleader summons  under  Ord.  LVII.,  when  the 
applicant  is  a  defendant,  has  no  power  under 
rule  15  to  make  it  a  term  of  the  order  that  the 
plaintiff  shall  pay  the  costs  of  the  defendant  in 
the  original  action,  apart  from  those  in  the  in- 
terpleader proceedings,  and  an  order  to  this  effect 
is,  notwithstanding  36  &  37  Vict.  c.  66,  8.  49, 
subject  to  appeal.  Hanson  v.  Maddox,  12  Q.  B. 
D.  100 ;  53  L.  J.,  Q.  B.  67 ;  60  L.  T.  123 ;  32 
W.  R.  183— D. 


Deduction  of,  by  Shareholder.] — A  stake- 


holder interpleading,  who  acts  with  good  faith, 
is  entitled,  although  not  a  defendant  in  an 
action,  to  deduct  from  the  fund  in  dispute  the 
costs  occasioned  by  the  interpleader  proceedings. 
Clench  v.  Booley,  56  L.  T.  122— D. 

Sheriff's  Charges  for  Levy  and  Sale- 
Successful  Party.] — A  successful  claimant  on 
an  interpleader  issue  is  entitled  as  against  an 
unsuccessful  execution  creditor  to  the  amount  of 
the  sheriffs  charges  incurred  in  the  matter  of 
a  levy  and  sale.  Searle  v.  Matthews  (W.  N. 
1883,  p.  176)  approved.  Goodman  v.  Blake,  19 
Q.  B.  D.  77  ;  56  L.  J.,  Q.  B.  441  ;  67  L.  T.  494  ; 
35  W.  R.  812— D. 


3.  Appeal. 

Proceedings  transferred  to  County  Court — 
Jurisdiction  of  Court  of  Appeal.] — Interpleader 
proceedings  were  transferred  under  the  Judica- 
ture Act,  1884,  s.  17,  from  the  Queen's  Bench 
Division  to  a  county  court.  On  appeal  from  the 
judgment  of  the  county  court  the  Queen's  Bench 
Division  affirmed  that  judgment  but  gave  leave 
to  appeal  to  the  Court  of  Appeal : — Held,  that 
the  Court  of  Appeal  had  jurisdiction  under  the 
Judicature  Act,  1873,  8.  45,  to  hear  the  appeal, 
that  jurisdiction  not  having  been  taken  away  by 
the  Appellate  Jurisdiction  Act,  1876,  s.  20. 
Crush  v.  Turner  (3  Ex.  D.  303)  approved. 
Thomas  v.  Kelly,  13  App.  Cas.  506 ;  58  L.  J., 
Q.  B.  66;  60  L.  T.  114;  37  W.  R.  353— 
H.  L.  (E.) 

County  Court — Amount  not  exceeding  £90.  ] — 

An  appeal  does  not  lie,  even  by  leave  of  the 
judge,  from  the  decision  of  a  county  court  in 
proceedings  in  interpleader,  where  neither  the 
money  claimed,  nor  the  value  of  the  goods  and 
chattels  claimed,  or  of  the  proceeds  thereof, 
exceeds  20/.  Colli*  v.  Lewis,  20  Q.  B.  D.  202  ; 
67  L.  J.,  Q.  B.  167  ;  57  L.  T.  716 ;  36  W.  R. 
472— D. 

Value  of  Goods  Claimed,  or  of  proceeds 

thereof;  oyer  £20.]— Where  in  an  interpleader 
proceeding  in  a  county  court  the  claimant  de- 
posits the  amount  of  the  value  of  the  goods 


claimed  as  fixed  by  appraisement  under  a  72  of 
the  County  Courts  Act,  1866,  he  cannot,  if  the 
amount  so  deposited  be  less  than  20JM  claim  to 
appeal  under  s.  68  of  the  act  on  the  ground  that 
the  value  of  the  goods  was  over  20/.,  and  that  a 
less  amount  was  deposited  because  it  was  suffi- 
cient to  satisfy  the  execution  creditor's  judg- 
ment.    White  v.  MUne,  58  L.  T.  226— D. 

Summary  Decision— Appeal  by  Sheriff]— The 
23  &  24  Vict  jc.  126,  s.  17,  makes  a  summary 
decision  under  the  act  final  and  conclngive 
"  against  the  parties,"  but  this  does  not  apply  to 
the  sheriff ;  therefore  a  sheriff  can  appeal  from 
an  order  made  in  a  summary  way.  Smith  t. 
Barlow,  26  Ch.  D.  605  ;  63  L.  J.,  Ch.  696 ;  60 
L.  T.  571  ;  32  W.  R.  665— C.  A. 

Master   to   Judge.]— Where  a  master 

summarily  decides  an  interpleader  matter  under 
Order  LVII.  r.  8,  and  gives  leave  to  appeal,  a  judge 
at  chambers  has  jurisdiction  to  entertain  such 
appeal  by  virtue  of  the  provisions  of  Ord.  LVII. 
r.  11.  Webb  v.  Shaw,  16  Q.  B.  D.  658 ;  65  L.  J, 
Q.  B.  249  ;  54  L.  T.  216  ;  34  W.  R.  415-D. 

Upon  the  true  construction  of  Ord.  LIV.  rr.  1* 
and  21,  and  Ord.  LVII.  rr.  8  and  11,  an  appeal 
lies  from  a  summary  decision  of  a  master  in  an 
interpleader  proceeding  to  a  judge  at  chamber*. 
Clench  v.  Booley,  56  L.  T.  122— D.  See  also 
Bryant  v.  Reading,  infra. 

Judge  at  Chambers  to  Divisional  Court] 


A  summary  decision  under  Ord.  LVII,  r.  8,  by  a 
judge  at  chambers,  on  an  interpleader  summons, 
is  final  and  conclusive,  and  no  appeal  lies  from 
such  decision,  and  there  is  no  power  to  gto 
leave  to  appeal  Lyon  v.  Morris,  19  Q.  B.  D. 
139  ;  56  L.  J.,  Q.  B.  378 ;  57  L.  T. 324 ;  36  W.B. 
707— C.  A. 

At  Chamber*— From  Divisional  Court  t» 

Court  of  Appeal.  J— By  the  combined  operation 
of  the  Common  Law  Procedure  Act,  1860,  s.  17, 
and  of  the  Appellate  Jurisdiction  Act,  1876,  a  20. 
no  appeal  lies  to  the  Court  of  Appeal  from  a 
decision  of  the  Queen's  Bench  Division  upon  an 
appeal  from  the  summary  decision  at  chamber* 
ot  an  interpleader  summons,  and  r.  11  of  the 
Rules  of  the  Supreme  Court,  1883,  Ord.  LVIL, 
does  not  confer  any  power  to  give  leave  to 
appeal.  Waterhouse  v.  Gilbert ,  16  Q.  B.  D.  569 ; 
54  L.  J.,  Q.  B.  440 ;  52  L.  T.  784— C.  A. 

On  an  interpleader  summons  at  chambers  the 
master  decided,  at  the  request  of  one  of  the 
parties,  and  having  regard  to  the  value  of  the 
subject-matter  in  dispute,  to  dispose  of  the 
claims  in  a  summary  manner,  and  he  adjourned 
the  summons  for  the  production  of  evidence. 
The  claimant  objected  that  it  was  a  case  for  an 
issue,  and  appealed  to  a  judge  at  chambers,  who 
dismissed  the  appeal  on  the  ground  that  the 
decision  of  the  master  was  final.  An  appeal 
from  the  judge  at  chambers  to  the  divisional 
court  was  dismissed.  On  appeal  to  the  Court  of 
Appeal :— Held,  that  the  decision  of  the  master 
was  a  summary  decision  within  Ord.  LVIL  r.  8, 
and  that  therefore  Waterhouse  v.  Gilbert  (1& 
Q.  B.  D.  569)  applied,  and  the  Court  of  Appeal 
could  not  entertain  the  appeal.  Quaere,  whether 
under  Ord.  LIV.  r.  21,  all  decisions  of  a  master, 
including  a  decision  in  a  summary  way  in  inter- 
pleader, are  not  the  subject  of  appeal  to  a  judge 
at  chambers.    Bryant  v.  Beading,  17  Q.  B.  D. 


1046 


INTOXICATING    LIQUORS. 


1046 


128 ;  55  L.  J.,  Q.  B.253 ;  54  L.T.624  ;  34  W.  R. 
496-C.A.    S.  C.,  54  L.  T.  300— D. 


Court— ''Pinal  Order"— 
.] — The  judgment  of  a  divisional  court 
affirming  the  judgment  of  the  county  court  in 
an  interpleader  issue  transferred  to  the  county 
court  under  s.  17  of  the  Judicature  Act,  1884,  is 
a  "  final  order  "  within  Ord.  LVIII.  r.  3.  Hughes 
t.  Little,  18  Q.  B.  D.  32  ;  66  L.  J.,  Q.  B.  96 ;  55 
L.  T.  476  ;  35  W.  R.  36— C.  A. 

from  Judgment  of  Judge  on  Trial  of  Issue — 
lb  what  Court.] — Where  it  is  sought  to  impeach 
the  judgment  of  a  judge  on  the  trial  of  an  inter- 
pleader issue  with  respect  only  to  the  finding  of 
the  facte  or  the  ruling  of  the  law,  and  not  with 
respect  to  the  final  disposal  of  the  whole  matter 
of  the  interpleader  proceedings,  an  appeal  will 
he  from  such  judgment  under  s.  19  of  the 
Judicature  Act,  1873,  as  it  will  from  any  other 
judgment  or  order  of  a  judge.  Dawson  v.  Fox, 
or  Fbx  v.  Smith,  14  Q.  B.  D.  377  ;  54  L.  J.,  Q.  B. 
299;  33  W.  R.  514— C.  A. 

When  an  interpleader  issue  has  been  tried  by 
a  judge  and  jury,  and  upon  the  finding  of  the 
jury  the  judge  has,  under  Ord.  LVII.  r.  13, 
pronounced  judgment  disposing  of  the  whole 
matter  of  the  interpleader  proceedings,  but  has 
giren  leave  to  appeal,  a  party  to  the  issue  who 
is  dissatisfied  with  both  the  finding  of  the  jury 
and  the  judgment  of  the  judge,  may  appeal 
under  Ord.  XL.  r.  5,  to  a  Divisional  Court  of  the 
Queen's  Bench  Division,  and  under  the  Supreme 
Court  of  Judicature  Act,  1873,  s.  19,  from  that 
court  to  the  Court  of  Appeal : — Sembie,  that 
BurstaU  v.  Bryant  (12  Q.  B.  D.  103)  was 
wrongly  decided.  Robinson  v.  Tucker,  14  Q.  B.  D. 
371 ;  53  L.  J.,  Q.  B.  317  ;  50  L.  T.  380 ;  32 
W.  R.  697— C.  A. 

The  appeal  from  a  judgment  of  the  court  or  a 
judge  in  any  action  or  any  issue  ordered  to  be 
tried  or  stated  in  an  interpleader  proceeding,  or 
from  the  decision  of  the  court  or  a  judge  in  a 
summary  way  in  an  interpleader  proceeding,  lies 
direct  to  the  Court  of  Appeal,  and  in  no  case  to 
the  divisional  court ;  and  it  is  immaterial 
whether  the  judge  whose  judgment  is  appealed 
against  gives  or  refuses  special  leave  to  appeal. 
Bmrstail  v.  Bryant,  12  Q.  B.  D.  103 ;  49  L.  T. 
712 ;  32  W.  R.  495 ;  48  J.  P.  119— D. 


INTERROGATORIES. 

See  Discovery. 


INTESTACY. 

Desewnt  of  Bstate.]— See  Estate. 
Distribution    of    Personal     property.] — See 

RZECUTOB  AND  ADMINISTRATOR  (ASSETS). 

Application  far  Appointment  of  Hew  Trustee.] 
— &e  Trust  and  Trustee. 


INTOXICATING    LIQUORS. 

1.  Excise  Licences  and  Offences,  1046. 

2.  Granting  of  Licences  by  Justices,  1047. 

3.  Renewals,  1049. 

4.  Transfers,  1052. 

5.  Offences  against  Licence,  1053. 

6.  Covenants  respecting    Licensed   Houses— 

Licences,  1057. 


1.  Excise  Licences  and  Offences. 

Licence— Bight  to— Place  of  Public  Entertain- 
ment — Music  Hall.] — The  proprietors  of  a  music 
hall,  having  duly  obtained  a  music  and  dancing 
licence,  applied  as  being  the  proprietors  of  a 
place  of  public  entertainment  licensed  by 
justices  of  the  peace,  to  the  Commissioners 
of  Inland  Revenue  for  an  excise  licence  to 
sell  by  retail,  beer,  Bpirits,  and  wine  on  the 
premises  under  s.  7  of  5  &  6  Will.  4,  c.  39 : — 
Held,  that  the  commissioners  had  properly  re- 
fused to  grant  an  excise  licence  until  a  licence 
of  justices  had  first  been  obtained  under  the 
Licensing  Act  of  1872  ;  that  s.  7  of  5  &  6  Will. 
4,  c.  39,  had  been  repealed  by  the  later  act  (35  & 
36  Vict.  c.  94),  except  so  far  as  the  rights  of 
proprietors  of  theatres  were  concerned ;  and 
that  a  music  hall  was  not  a  theatre.  Reg.  v. 
Inland  Revenue  Commissioners,  Empire  Theatre, 
In  re,  21  Q.  B.  D.  569  ;  67  L.  J.,  M.  C.  92 ;  69 
L.  T.  378  ;  36  W.  R.  696  ;  52  J.  P.  390— D. 

Retailing    "  Sweets  "—Sale   of   "Best 

Sherry,  British."] — A.,  who  held  a  licence  for 
retailing  "  sweets  and  made  wines,"  but  had  no 
licence  for  the  sale  of  foreign  wines,  on  being 
asked  for  a  bottle  of  best  sherry,  sold  a  bottle  of 
liquor  labelled  "  Best  Sherry,  British."  He  was 
thereupon  charged  with  selling  foreign  wine 
without  a  licence : — Held,  that  the  justices,  in 
dismissing  the  information  against  him  on  the 
ground  that  the  liquor  was  not  sold  as  being 
foreign  wine,  were  wrong,  and  that  the  case 
must  be  remitted  to  them.  Sherry  is  the  name 
of  a  foreign  wine,  therefore,  under  23  Vict.  c. 
27,  s.  21,  liquor  labelled  "  Best  Sherry,  British," 
must,  as  against  the  seller,  be  deemed  to  be 
foreign  wine.  Richards  v.  Banks,  58  L.  T. 
634  ;  52  J.  P.  23— D. 

Retail  Dealer— Wine  and  Spirit  Mer- 
chant's Traveller.] — A  traveller  for  a  fully- 
licensed  firm  of  wine  and  spirit  merchants  at 

B.  occupied  an  office  and  premises  at  C,  where 
he  resided,  and  where  amongst  other  places  he 
solicited  and  obtained  orders  which  he  forwarded 
to  his  employers  at  B.,  who  delivered  the  goods 
so  ordered  direct  to  the  purchaser.  The  firm 
neither  rented  nor  occupied  any  premises  at  all 
at  C.,  nor  did  they  store  goods  upon  their  travel- 
ler's premises.  Upon  an  information  being  ex- 
hibited by  an  inland  revenue  officer  against  the 
traveller  under  the  above  acts,  charging  him 
with  taking  an  order  for  spirits  at  his  office  at 

C,  without  having  in  force  a  proper  licence 
authorising  him  so  to  do : — Held,  that  he  was  a 
bona  fide  traveller  taking  orders  for  his  em- 
ployers who  were  duly  licensed  to  sell  spirits,. 
&c,  and  therefore  not  liable  to  take  out  a  licence. 
Stnchbery  v.  Spencer,  56  L.  J.,  M.  C.  141  ;  51 
J.  P.  181— D. 


1047 


INTOXICATING    LIQUORS. 


1048 


Beer  Licence— Botanio  Beer.] — The  ap- 
pellant sold  a  liquor  called  "botanic  beer," 
without  having  a  retail  licence  for  the  sale 
of  beer.  It  contained  sugar,  herbs,  and  water, 
but  no  hops  or  malt,  and  had  6  per  cent,  of 
proof  spirit  : — Held,  that  such  a  liquor  was 
**  beer  "  within  the  meaning  of  s.  4  of  48  &  49 
Vict.  c.  51,  and  that  the  appellant  was  rightly 
convicted.  Iloworth  v.  Minns,  56  L.  T.  316  ; 
.~>1  J.  P.  7— D. 


Dilution  of  Beer  by  Publioan— Mixing  Been 
of  different  Strengths.]— By  s.  8,  sub-s.  2,  of  the 
Customs  and  Inland  Revenue  Act,  1885,  "a 
dealer  in  or  retailer  of  beer  shall  not  adulterate 
or  dilute  beer,  or  add  anything  thereto,  except 
finings  for  the  purpose  of  clarification."  The 
appellant,  a  publican,  had  in  his  cellar  a  cask  of 
beer  supplied  by  a  firm  of  brewers,  and  also  a 
quantity  of  small  beer  of  much  less  strength. 
He  drew  off  a  certain  quantity  from  the  cask  of 
stronger  beer,  and  filled  it  up  with  small  beer, 
adding  some  finings  for  clarification  ;  the  result, 
as  tested  by  the  quantity  of  proof  spirit  in  the 
two  kinds  of  beer,  was  that  the  mixture  was 
about  15  per  cent,  weaker  than  the  beer  which 
was  in  the  cask  as  it  came  from  the  brewers. 
No  water  or  any  other  matter  or  thing  (except 
the  finings)  was  added  to  the  beer.  On  appeal 
against  a  conviction  for  "  diluting  "  beer  under 
the  above  section  : — Held,  that  the  mixing  of 
the  two  kinds  of  beer  amounted  to  a  dilution  of 
the  stronger  beer,  and  that  the  appellant  was 
properly  convicted.  Crofts  v.  Taylor,  19 
Q.  B.  D.  524  ;  56  L.  J.,  M.  C.  137  ;  57  L.  T.  310  ; 
36  W.  R.  47  ;  51  J.  P.  532,  789 ;  16  Cox,  C.  C. 
294— D. 


2.  Granting  of  Licences  by  Justices. 

Persons  Qualified  —  Publican's  Licence  — 
Confectioner.]  —  A  confectioner  who  has  held 
a  wine  licence  for  consumption  on  the  premises, 
and  who  supplies  luncheons,  is  sufficiently  within 
the  description  of  persons  entitled  to  apply  for 
and  hold  a  publican's  licence  within  9  Geo.  4, 
c.  61,  s.  1,  being  a  person  about  to  keep  an  inn, 
alehouse,  or  victualling-house.  Reg.  v.  Surrey 
J  J.,  52  J.  P.  423— D. 

Jurisdiction — Division  of  County— Island  in 
British  Channel.] — H.  had  a  house  in  an  island 
in  the  British  Channel,  and  had  for  thirty-eight 
years,  without  having  a  justices1  or  excise 
licence,  sold  intoxicating  liquors  to  all  visitors 
there,  no  other  house  being  in  the  island.  He 
was  summoned  for  selling  without  a  licence  : — 
Held,  that  the  island  was  part  of  the  county  to 
which  it  was  nearest,  and  that  the  licensing 
justices  of  any  division  of  the  county  had  juris- 
diction to  grant  the  ordinary  licences  to  sell 
intoxicating  liquors  there.  Wright  v.  Harris, 
49  J.  P.  628— D. 

Retail  Wine  Licenoe — House  Licensed  before 
1800  for  Beer— Discretion.]— By  the  Wine  and 
Beerhouse  Act,  1869  (32  &  33  Vict.  c.  27),  s.  19— 
where  on  May  1,  1869,  a  licence  is  in  force  with 
respect  to  a  house  for  the  sale  therein  of  beer, 
cider,  or  wine  to  be  consumed  on  the  premises, 
the  justices  are  not  to  be  entitled  to  refuse  an 
application  for  a  certificate  for  the  sale  of  beer, 
cider,  or  wine  to  be  consumed  on  the  premises 


in  respect  of  such  house  except  upon  one  or  more 
of  four  grounds  specified. — Upon  an  application 
to  licensing  justices  under  the  above  section  for 
a  certificate  for  a  licence  to  sell  wine  to  be  con- 
sumed on  the  premises,  it  appeared  that  on  May 
1, 1869,  a  licence  was  in  force  with  respect  to 
the  house  for  the  sale  of  beer  to  be  consumed  on 
the  premises  : — Held,  that,  upon  the  true  con- 
struction of  s.  19,  the  discretion  of  the  justices 
in  refusing  the  application  was  unlimited,  for 
the  existence  of  a  licence  with  regard  to  the  sale 
of  beer  did  not  confer  any  privilege  upon  an 
application  for  a  certificate  in  respect  of  the  sale 
of  either  wine  or  cider.  Reg.  v.  Xing,  20  Q.  B.  D. 
430  ;  57  L.  J.,  M.  C.  20  ;  68  L.  T.  607  ;  36  W.R. 
600  ;  62  J.  P.  164— C.  A. 

"  Keeping  Shop  for  Sale  of  Goods  other  thai 

Foreign  Wine.  "J — Semble,  thata  person  who  hasa 
spirit-dealer's  retail  licence  to  sell  spirits  in  bottles, 
and  who  has  a  wholesale  beer-dealer's  licence 
authorising  the  sale  of  casks  of  ale  of  four  and 
a  half  gallons,  sufficiently  fulfils  the  description 
of  "  a  person  who  keeps  a  shop  for  the  sale  of 
goods  and  commodities  other  than  foreign  wine," 
and  therefore  is  entitled  to  a  certificate  of  justices 
authorising  the  sale  of  wine  by  retail  pursuant 
to  23  Vict,  c  27,  s.  3.  Reg.  v.  Bishop,  50  J.  P. 
167— D. 

Agreement  for  Sale  subject  to  transfer  Is 
Purchaser— New  Licence  or  Transfer.  1— B.  &  Go. 
had  for  several  years  carried  on  the  business  of 
family  grocers,  tea,  wine,  and  spirit  merchants, 
in  certain  premises  in  ^.-street,  in  the  city  of 
Dublin,  and  one  of  the  firm  had  been  each  year 
duly  licensed  as  a  publican,  to  sell  beer,  wine, 
and  spirits  for  consumption  upon  the  premises, 
but  had  never  carried  on  business  as  publican. 
At  the  October  sessions  of  1883,  their  publican's 
licence  had  been  duly  renewed  by  H.,  one  of 
their  firm.  In  September,  1884,  R.  &  Go.  entered 
into  an  agreement  with  M.  to  sell  to  him  the 
premises,  and  it  was  therein  provided  that  M. 
should  pay  a  deposit  of  800Z.  pending  completion 
of  the  purchase,  and  making  out  title,  &c ;  and 
they  also  entered  into  a  collateral  agreement 
with  M.  that  he  should  forthwith  take  all  neces- 
sary steps  to  obtain,  at  the  ensuing  October 
Licensing  Sessions,  a  transfer  of  the  licence 
attached  to  the  premises,  and  that,  if  M.  obtained 
such  transfer,  the  purchase  should  be  completed 
on  or  before  the  29th  November,  1884,  but  that 
if  such  transfer  was  refused  M.  should  be  at 
liberty  to  rescind  the  contract,  and  be  repaid  his 
deposit.  On  the  2nd  October,  1884,  by  an 
indorsement  on  the  licence,  H.  purported  to 
assign  all  his  interest  therein  to  M.  No  ad 
interim  transfer  of  the  licence  to  M.  had  been 
obtained.  M.  having  applied  to  the  recorder  at 
the  October  Licensing  Sessions  of  1884  for  a 
certificate  enabling  him  to  obtain  a  publican's 
licence,  and  such  application  having  been  opposed 
on  the  ground  of  the  number  of  previously 
licensed  houses  in  the  neighbourhood :— Held, 
that  the  case  was  distinguishable  from  Reg.  ▼■ 
Recorder  of  Dublin  (Ir.  R.  11  C.  L.  412) ;  that 
M.'s  application  was  in  substance  as  well  as  in 
form  an  application  for  a  new  licence,  and  that 
therefore  the  court,  in  dealing  with  it,  was 
entitled  to  take  into  consideration  the  number 
of  existing  licensed  houses  in  the  neighbour- 
hood. Reg.  v.  Dublin  (Recorder),  16  L.  B.,  «• 
424— C.  A. 


1049 


INTOXICATING    LIQUORS. 


1050 


Insertion  of  Condition  in  Lieence—  Sunday 
Owing.]— The  condition  under  the  Licensing 
Act,  1872  (35  &  36  Vict.  c.  94),  s.  49,  requiring 
the  licensed  premises  therein  mentioned  to  be 
closed  daring  the  whole  of  Sunday,  can  only  be 
inserted  in  a  new  licence  if  the  applicant  for  it 
himself  applies  to  the  licensing  justices  to  insert 
soch  condition.  Reg.  v.  Kirkdale  JJ.,  18  Q.  B.  D. 
148;  66  L  J.,  M.  C.  24  ;  51  J.  P.  214— D. 

"Special  Occasion  " — Exemption  from  Closing 
— Discretion.] — It  is  for  the  justices  (being  the 
local  authority  under  the  Licensing  Act,  1872) 
to  determine  what  is  a  **  special  occasion  "  in 
their  own  district,  on  which  a  licence  exempting 
i  licensed  victualler  from  the  provisions  of  the 
•bore  statute  relating  to  the  closing  of  his 
premises,  may  be  granted.  Devine  v.  Keeling > 
34  W.  R.  718 ;  50  J.  P.  561— D. 

Provisional  licence — Final  Order  —  Equal 
Inter  of  Justices.] — Licensing  justices  agreed 
to  grant  a  provisional  licence  for  a  railway 
refreshment  room  according  to  plans  shown, 
though  they  directed  change  of  site,  which  the 
applicant  agreed  to,  but  there  was  never  any 
farther  assent  of  justices  to  any  other  site.  At 
the  application  for  the  final  order  the  eight 
justices  were  equally  divided,  and  no  adjournment 
vis  granted.  A  rule  nisi  for  a  mandamus  being 
panted,  the  justices  then  met  again,  and  agreed 
by  a  majority  to  make  a  final  order :— Held,  that 
the  role  for  the  mandamus  might  be  made  abso- 
lute, but  without  costs,  and  not  to  be  drawn  up 
except  on  further  application.  Beg.  v.  Cox,  48 
J.P.440-D. 

few  Lioenee   or  Renewal.]  —  See  Reg.   v. 
Market  Bomoorth  JJ.t  post,  col.  1051. 


3.     BENZWJlLB. 

Majority  of  Justices.]— The  granting  of  a 
renewal  certificate  by  justices  presiding  at 
licensing  sessions  must  be  the  act  of  the  majority 
of  the  court,  and  a  minority  or  two  or  more  of 
web  justices  is  not  competent  to  grant  and  sign 
the  said  certificate  when  the  remaining  justices 
form  a  majority,  and  object  to  the  grant  being 
■ade.  In  such  cases  the  majority  should  make 
an  order  of  refusal,  and  not  merely  record  their 
tent  Reg.  v.  O'Gvwull,  20  L.  B.,  Ir.  625— 
Q.B.D. 

Objection  by  Justices  Jo  Hotiee— Ho  Evi- 
*****  on  Oath.] — It  is  not  competent  for  justices 
to  refuse  to  grant  the  renewal  of  a  licence  on 
account  of  an  objection  originated  by  them- 
selves, unless  they  have  first  given  notice  of  ob- 
jection and  taken  evidence  in  accordance  with 
the  provisions  contained  in  the  Licensing  Act, 
1872,  a  42,  sub-en.  2,  3.  Oaseoyne  v.  Risleyt  36 
W.B.6<*-D. 

Power  to  Adjourn.] — By  s.  42  of  the 

Licensing  Act,  1872,  justices  at  the  general 
annual  licensing  meeting  shall  not  entertain 
any  objection  to  the  renewal  of  a  licence,  or 
take  any  evidence  with  respect  to  the  renewal 
thereof,  unless  written  notice  of  an  intention  to 
oppose  the  renewal  has  been  served  upon  the 
holder  of  the  licence  in  the  prescribed  manner  : 
M  Provided  that  the  justices  may,  notwithstand- 


ing that  no  notice  has  been  given,  on  an  objec- 
tion being  made,  adjourn  the  granting  of  any 
licence  to  a  future  day,  and  require  the  atten- 
dance of  the  holder  of  the  licence  on  6uch 
day,  when  the  case  will  be  heard  and  the  ob- 
jection considered,  as  if  the  notice  hereinbefore 
prescribed  had  been  given "  : — Held,  that  an 
objection  to  the  renewal  of  a  licence  made 
privately  to  justices  before  they  came  into  court 
at  the  general  annual  licensing  meeting  was 
not  a  good  "  objection  made  "  within  the  mean- 
ing of  the  proviso  to  s.  42,  and  that,  therefore, 
the  -justices  had  no  power  to  adjourn  the  case. 
Reg.  v.  Merthyr  Tydvil  JJ.%  14  Q.  B.  D.  684 ; 
54  L.  J.,  M.  C.  78  ;  49  J.  P.  213— D. 


Long-closing  of  Premises.] — G.  obtained 


a  transfer  of  a  licence  in  1885  but  never  opened 
the  premises  owing  to  a  pending  negotiation  with 
another  tenant  which  ultimately  fell  through. 
In  August,  1885,  G.  obtained  a  renewal  on  his 
promise  to  open  the  premises,  but  he  did  not 
re-open  until  23rd  August,  1886,  when  the  nego- 
tiation ended.  G.  had  some  days  previously  been 
served  with  notice  of  objection,  and  on  26th 
August  the  justices  refused  the  renewal  on  the 
ground  that  the  re-opening  was  not  bona  fide. 
On  appeal  to  Quarter  Sessions  this  decision  was 
affirmed  :— Held,  that  the  objection  was  relevant, 
and  having  been  competently  entertained  and 
decided,  the  High  Court  would  not  interfere 
with  the  decision.  Griffith*  v.  Lancashire  J  J., 
35  W.  R.  732  ;  51  J.  P.  453— D. 

«0n"    Beer    Lioenee — Valuation    of 


House.] — Where  an  indoor  beer  licence  which 
had  been  renewed  since  1869,  was  refused  to  be 
renewed  by  the  licensing  justices  on  the  ground 
that  though  the  house  was  of  sufficient  annual 
value  when  the  application  was  heard  at  the 
adjourned  annual  meeting,  yet  it  had  not  been  so 
on  25th  August,  the  date  of  the  original  general 
annual  meeting,  the  value  having  been  increased 
during  the  interval : — Held,  that  the  justices 
had  exceeded  their  jurisdiction,  and  a  rule  for  a 
mandamus  was  made  absolute.  Reg.  v.  Montagu, 
49  J.  P.  55— D. 

Grounds  of  Serosal.] — J.,  the  holder  of  an 
"  on  "  beer  licence,  was  convicted  in  November, 
1885,  of  allowing  prostitutes  to  remain  on  hi6 
premises.  He  received  notice  of  opposition  to 
the  renewal  of  his  licence  on  that  ground  and 
gave  up  possession.  T.  became  tenant  on  16th 
Septernber,  1886,  and  gave  notice  that  he  would 
apply  for  a  renewal.  At  the  general  annual 
licensing  meeting  on  24th  September,  1886,  the 
justices  refused  the  renewal  either  to  T.  or  to  J. 
without  stating  any  grounds.  The  Quarter  Ses- 
sions confirmed  the  decision : — Held,  that  the 
justices  must  state  the  ground  of  their  refusal. 
Tranter  v.  Lancashire  JJ.,  51  J.  P.  454 — D. 

The  licensing  justices  at  the  general  meeting 
on  hearing  the  report  of  the  superintendent  of 
police  that  the  applicant  for  the  renewal  of  an 
indoor  beer  licence  had  been  convicted  of  per- 
mitting drunkenness  on  the  premises,  told  him 
to  come  again  at  the  adjournment  day.  Notice 
to  attend  was  given,  but  no  specific  objection 
was  stated.  After  hearing  the  superintendent  on 
oath  prove  the  conviction,  and  afterwards 
calling  him  into  their  private  room,  the  justices 
refused  the  renewal,  but  gave  no  reason  for  their 
decision : — Held,    that   the    justices   had    not 


1051 


INTOXICATING   LIQUORS. 


1052 


heard  and  determined  the  case  according  to  the 
statute,  and  a  mandamus  to  hear  the  application 
was  directed.  Beg.  v.  Bedditch  JJ.,  50  J.  P. 
346— D. 

Discretion  of  Jnstioes.] — The  discretion  of  the 
justices  as  to  granting  or  refusing  a  licence  by 
way  of  renewal  under  the  Licensing  Act,  1828  (9 
Geo.  4,  c  61),  and  the  Licensing  Acts,  1872  and 
1874,  is  absolute,  provided  it  be  exercised  judi- 
cially, and  the  situation  of  the  house  as  regards 
police  supervision  and  the  requirements  of  the 
neighbourhood  are  matters  which  the  justices 
have  a  right  to  consider  in  deciding  whether  to 
grant  or  refuse  a  licence  by  way  of  renewal  under 
these  Acts.  Reg.  or  Skarpe  v.  Wakefield,  22 
Q.  B.  D.  239  ;  58  L.  J.,  M.  C.  67 ;  60  L.  T.  130  ; 
37  W.  B.  187  ;  53  J.  P.  20— C.  A. 

Six-day  Licence— Application  for  Seven-day 
Licence.] — Where  a  licence  was  originally 
granted  subject  to  the  condition  under  s.  49  of 
the  Licensing  Act,  1872  (35  &  36  Vict.  c.  94),  re- 
quiring the  licensed  premises  to  be  closed  during 
the  whole  of  Sunday,  it  can  only  be  renewed 
subject  to  that  condition,  and  cannot  be  renewed 
as  an  ordinary  seven-day  licence.  Reg.  v.  Crew- 
kerne  JJ.  or  Spark*,  21  Q.  B.  D.  85  ;  57  L.  J., 
M.  C.  127  ;  60  L.  T.  84  ;  36  W.  R.  629  ;  52  J.  P. 
372— C.  A. 

T.,  a  publican,  held  a  six-day  licence,  which 
had  existed  as  a  six-day  licence  for  three  years 
only,  a  former  holder  thereof  having  held  the 
ordinary  licence  for  many  years  before  that  date. 
T.  applied  for  a  renewal  without  the  six-day 
condition  being  inserted: — Held,  that  the 
justices  were  not  bound  to  renew  such  licence  as 
a  seven-day  licence.  Reg.  v.  Liverpool  JJ.,  52 
J.  P.  376— D. 

Hew  or  Benewal  Licence— Effluxion  of  Cur- 
rent Licence  after  Refusal  of  Renewal— Appli- 
cation by  new  Tenant.] — At  an  adjourned  general 
annual  licensing  meeting  in  1885,  the  renewal  of 
a  public-house  licence  was  refused  to  P.  P.  did 
not  appeal  to  the  Quarter  Sessions,  and  his  cur- 
rent licence  expired  on  the  10th  of  October 
following.  He  closed  the  premises  as  a  public- 
house,  and  continued  to  occupy  them  as  his 
private  residence  until  Midsummer,  1886,  when 
he  left  and  C.  became  tenant.  At  the  general 
■annual  licensing  meeting  in  1886,  C.  applied 
for  a  licence,  but  the  justices,  considering  his 
application  to  be  one  for  the  grant  of  a  new 
licence,  in  their  discretion  refused  it,  on  the 
ground  that  there  were  already  a  sufficient  num- 
ber of  licensed  houses  in  the  district.  Upon  an 
application  by  C.  for  a  rule  for  a  mandamus 
to  be  directed  to  the  justices: — Held,  that 
C.'s  application  was  not  an  application  for  a 
"  new  licence,  but  one  for  the  "  renewal "  of  a 
licence.  The  justices  accordingly  could  not  re- 
fuse it  upon  the  ground  they  did,  and  they  ought 
to  hold  an  adjournment  to  hear  and  determine 
the  application.  Reg.  v.  Market  Botworth  JJ., 
66  L.  J.,  M.  C.  96  ;  57  L.  T.  56  ;  35  W.  R.  734  ; 
61  J.  P.  438— D. 

Hegleeting  to  apply  for  subsequent  Renewal 
— Mandamus.  J — At  a  general  licensing  meeting 
in  1884,  the  justices  refused  to  renew  M.'s 
licence  for  an  inn.  The  house  was  shut  up, 
then  sold  in  January  to  J.,  who  in  July,  1885, 
obtained  a  mandamus  to  hear  the  application. 


The  justices  in  obedience  to  the  role  reheard  the 
case  in  January,  1886,  and  granted  the  renewal 
for  the  year  ending  October,  1885,  but  refused  to 
renew  the  licence  for  the  then  current  year  end- 
ing October,  1886,  as  no  application  had  been 
made  at  the  general  meeting  in  September,  1885 : 
— Held,  that  though  the  justices  had  no  power 
to  renew  the  licence  for  1886,  yet  the  court 
would  give  them  power  by  making  absolute  a 
second  rule  for  a  mandamus  to  hear  the  applica- 
tion. Reg.  v.  Miskin  Higher  JJ.,  50  J.  P.  247 
— D. 

Appeal  to  Quarter  Sessions— Mortgager  and 
Mortgagee.] — The  tenant  and  occupier  of  a 
house  licensed  for  the  sale  of  beer  on  the 
premises,  in  1876  assigned  all  his  interest  in 
the  premises  for  the  residue  of  his  term  of  yews, 
and  the  benefit  of  the  licence,  to  the  appellants 
by  way  of  first  mortgage  to  secure  the  repay- 
ment of  moneys  advanced  by  them ;  and  by  the 
mortgage  deed  irrevocably  constituted  the  appel- 
lants his  attorneys,  in  his  name,  and  as  his  act 
and  deed,  to  do  all  acts  necessary  to  procure  a 
transfer  of  the  licence.  In  1883,  the  moneys 
secured  by  the  mortgage  being  still  unpaid,  the 
occupier  sent  a  written  application  for  a  re- 
newal of  his  licence  to  tie  justices  at  their 
annual  licensing  meeting,  and  they  adjourned 
the  hearing  of  the  application.  At  the  ad> 
journed  hearing  the  appellants  applied,  as  mort- 
gagees, and  under  their  power  of  attorney,  for  a 
renewal  of  the  licence  to  the  occupier,  who 
appeared,  but  stated  that  he  did  not  wish  for  a 
renewal  No  objection  was  made  to  the  renewal 
on  any  of  the  grounds  specified  in  32  &  33  Vict 
o.  27,  which  act  applied  to  the  occupier's  licence. 
The  justices  refused  the  application,  and  the 
appellants  appealed  to  quarter  sessions  in  their 
own  names  as  mortgagees,  and  also  as  attorneji 
of  the  occupier,  and  in  his  name,  and  for  and  on 
his  behalf.  At  the  hearing  the  occupier  again 
appeared,  and  stated  that  he  did  not  wish  the 
licence  to  be  renewed,  and  the  quarter  session* 
thereupon  affirmed  the  order  of  the  licensing 
justices : — Held,  first,  that  the  appellants  were 
persons  aggrieved,  within  9  Geo.  4,  a  61,  a  27, 
by  the  refusal  of  the  licensing  justices  to  renew 
the  occupier's  licence,  and  were  therefore  entitled 
to  appeal  to  quarter  sessions ;  secondly,  that  upon 
the  facts  stated  the  licensing  justices  and  the 
court  of  quarter  sessions  were  bound  to  grant  the 
application  of  the  appellants  for  a  renewal  of  the 
licence  to  the  occupier.  Oarrett  v.  Middlesex 
JJ,  or  Reg.  v.  Garrett,  12  Q.  B.  D.  620;  63 
L.  J.,  M.  C.  81 ;  32  W.  B.  646  ;  48  J.  P.  367 
— D. 

4.  Transfer. 

Transfer  or  Hew  Licence.] — See  Beg.  v.  Duoli* 
(Beeorder),  ante,  coL  1048. 

Beerhouse  Licence  existing  before  1M9— Dis- 
cretion.]— A  licence  existing  on  1st  May,  1869, 
for  the  sale  of  beer  to  be  consumed  on  the  premises, 
was  forfeited  by  the  conviction  of  the  holder 
under  the  Licensing  Act,  1872  (35  &  36  Vict 
c  94),  s.  16,  for  permitting  the  premises  to  be 
used  as  a  brothel  -.—Held,  that  the  licence  was 
not  "  in  force  "  within  the  meaning  of  the  Wine 
and  Beerhouse  Act,  1869  (32  &  33  Vict  c.  27), 
8. 19,  and  that  the  licensing  justices  at  special 
sessions  had  a  general  discretion  to  refuse  appli* 


1068 


INTOXICATING    LIQUORS. 


1054 


cations  by  the  landlord  and  a  new  tenant  of  the 
premises  for  a  transfer  of  the  licence,  and  were 
not  limited  to  the  four  grounds  of  refusal  speci- 
fied in  s.  8.  Reg.  v.  West  Riding  JJ.,  21  Q.  B.  D. 
J68:57LJ„  M.O.103;  36W.R.865;  62  J.  P. 
455-D. 

—  Power  of  Adjournment  1 — The  Wine  and 

Beerhouse  Act  (1869)  Amendment  Act,  1870 

<J3  k  34  Vict  c   29),  s.  4,  sub-s.  4— which 

enacts  that  it  shall  be  in  the  discretion  of  the 

jostices  to  whom  an  application  for  a  transfer 

of  a  licence  is  made  either  to  allow  or  refuse  the 

application,  or   to   adjourn   the  consideration 

thereof— is  intended  only  to  affect  the  procedure 

as  to  adjournment  at  sessions  for  the  transfer  of 

licences.  Therefore,  on  an  application  to  justices 

at  ipecial  sessions  for  a  transfer  of  a  licence  to 

tell  beer  to  be  consumed  on  or  off  premises  in 

respect  of  which  such  a  licence  was  m  force  on 

the  1st  of  May,  1869,  and  has  since  been  renewed 

from  time  to  time,  the  discretion  of  the  justices 

is  limited,  as  it  is  on  an  application  at  the 

general  licensing  meeting  for  a  grant  by  way  of 

renewal  of  the  licence,  and  the  application  for 

the  transfer  can  only  be  refused  on  one  or  more 

<rf  the  four  grounds  specified  in  the  Wine  and 

Beerhouse  Act,  1869  (32  &  33  Vict  c.  27),  ss.  8, 

19.  Smondsv.  Blachheath  JJ.,  17  Q.  B.  D.  765  ; 

»  L.  J.,  M.  a  166  ;   36  W.  R.  167  ;   60  J.  P. 

742-D. 

Maerttion  of  Justices  —  Refusal  of.  J  —  C. 
hsring  a  lease  of  a  licensed  house  at  M.  till 
1879,  began  in  1876  to  build  a  new  house  of  his 
own  at  L,  for  which  he  obtained  a  licence  and 
allowed  the  licence  at  M.  to  drop.  A  new 
tenant  entered  the  premises  at  M.  in  1879,  and 
applied  from  then  until  1883  for  a  new  licence, 
which  was  always  refused ;  he  then  applied  for 
a  transfer  of  the  licence  at  M.  which  had  expired 
in  1877 :— Held,  that  the  justices  had  a  dis- 
cretion to  refuse  the  transfer,  and  could  not  be 
compelled  by  mandamus  to  hear  the  applica- 
tion.   Minnett,  Ex  parte,  51  J.  P.  84— D. 

Tenant  giving  up  Possession  —  Application 
ay  Landbrd— Appeal  to  Quarter  Sessions.]— K., 
tie  licensed  tenant  of  a  public-house,  abandoned 
possession  in  December,  and  the  house  was  shut 
*P-  At  the  next  general  annual  licensing 
■eeting  in  September  K.  did  not  apply  for  a 
renewal,  but  the  landlord  asked  for  a  renewal 
either  in  K.'s  name  or  his  own,  which  the  justices 
ttfnsei  A  new  tenant,  P.,  entered  a  few  days 
*&er  the  adjourned  annual  licensing  meeting, 
and  applied  at  the  next  transfer  sessions  in 
October  for  a  transfer  of  the  licence,  which  was 
refused.  P.  then  appealed  to  quarter  sessions  in 
January,  when  the  refusal  was  confirmed.  P. 
then  applied  in  June  for  an  order  for  a  mandamus 
to  the  general  annual  licensing  meeting  to  re- 
Bear  his  application : — Held,  that  P.  was  pre- 
dated from  asking  for  a  mandamus  because 
of  his  appeal  to  quarter  sessions,  and  that  his 
fppbcation  was  for  a  mandamus  to  the  wrong 
ivtkes.  Reg.  v.  Newoastle*upon-Tyne  JJ., 
H  J.  P.  244— C.  A. 


5.  Offences  against  Licence. 

Muiaar  Gaming   on   Licensed   Premises— 
fcowiedge  of  Serrant]  —  Where  gaming  UJ 


had 


taken  place  upon  licensed  premises  to  the 
knowledge  of  a  servant  of  the  licensed  person 
employed  on  the  premises,  but  there  was  no 
evidence  to  show  any  connivance  or  wilful 
blindness  on  the  part  of  the  licensed  person,  and 
it  did  not  appear  that  the  servant  was  in  charge 
of  the  premises : — Held,  that  the  justices  were 
right  in  refusing  to  convict  the  licensed  person 
of  suffering  gaming  on  the  premises  under  the 
Licensing  Act,  1872,  s.  17.  Mullins  v.  Collins 
(9  L.  R.,  Q.  B.  292)  discussed.  Somerset  v. 
Hart,  12  Q.  B.  D.  360 ;  63  L.  J.,  M.  C.  77  ; 
48  J.  P.  327— D. 

Where  gaming  had  taken  place  upon  licensed 
premises  to  the  knowledge  of  a  servant  of  the 
licensed  person  who  was  in  charge  of  the 
premises,  but  without  any  knowledge  or  con- 
nivance on  the  part  of  the  licensed  person : — 
Held,  that  the  licensed  person  had  suffered 
gaming  to  be  carried  on  on  the  premises  within 
the  meaning  of  s.  17  of  the  Licensing  Act,  1872, 
and  was  rightly  convicted.  Somerset  v.  Hart 
(12  Q.  B.  D.  360)  distinguished.  Bond  v.  Evans, 
21  Q.  B.  D.  249 ;  67  L.  J.,  M.  C.  105  ;  59  L.  T. 
411  ;  36  W.  B.  767  ;  52  J.  P.  612— D. 

Permitting  Drunkenness  on  Premises— Sale 
of  liquor  to  Drunken  Person.  1 — A  publican  was 
convicted  by  justices  of  selling  intoxicating 
liquor  to  a  drunken  person,  though  at  the 
hearing  it  had  been  proved  that  the  liquor 
had  been  ordered  and  paid  for  by  the  sober 
companion  of  such  drunken  person  : — Held,  that 
the  conviction  was  right  and  must  be  affirmed. 
Scatehard  v.  Johnson,  57  L.  J.,  M.  C.  41  ;  52  J.  P. 
389— D. 

Knowledge  of  Condition  of  Customer.] — 

The  Licensing  Act,  1872,  s.  13,  makes  it  an 
offence  for  any  licensed  person  to  sell  any 
intoxicating  liquor  to  any  drunken  person. 
A  publican  sold  intoxicating  liquor  to  a  drunken 
person  who  had  given  no  indication  of  intoxica- 
tion, and  without  being  aware  that  the  person 
so  served  was  drunk : — Held,  that  the  pro- 
hibition was  absolute,  and  that  knowledge  of 
the  condition  of  the  person  served  with  liquor 
was  not  necessary  to  constitute  the  offence. 
Candy  v.  Le  Cocq,  13  Q.  B.  D.  207 ;  53  L.  J., 
M.  0.  125  ;  51  L.  T.  265  ;  32  W.  R.  769  ;  48  J.  P. 
699— D. 

Selling  without  Lioenee— Unauthorised  Sale 
by  Club  Steward  — Liability  of  Trustees.]— 
The  appellants,  who  were  trustees  and  members 
of  the  managing  committee  of  a  club,  were 
convicted  under  the  Licensing  Acts  for  selling 
liquor  without  a  proper  licence  to  persons  not 
members  of  the  club.  It  appeared  that  the 
liquor  was  sold  in  the  club  premises  by  the 
steward  of  the  club,  who  in  selling  it  acted 
contrary  to  the  orders  of  the  appellants,  and 
without  their  knowledge  or  assent  The  money 
which  he  received  for  the  liquor  was  paid  by 
him  to  the  account  of  the  club : — Held,  that 
the  conviction  was  wrong,  for  the  appellants 
were  not,  under  the  circumstances,  responsible 
for  the  act  of  the  steward.  Newman  v.  Jones, 
17  Q.  B.  D.  132 ;  56  L.  J.,  M.  C.  113 ;  65  L.  T. 
327 ;  60  J.  P.  373— D. 

Pretended  Club  —  Manager  the  Pro- 
prietor. ]  —  E.  was  summoned  under  35  &  36 


1055 


INTOXICATING    LIQUORS. 


1056 


Vict.  c.  94,  8.  4,  for  selling  liquors  without  a 
licence.  Over  the  door  a  signboard  was  painted 
"The  C.  Working  Men's  Club."  The  interior 
was  fitted  up  like  a  public-house,  and  E.  pro- 
fessed to  be  manager,  and  ordered  everything  on 
the  credit  of  the  club,  but  could  not  tell  who 
were  members,  nor  how  the  accounts  were  kept, 
and  neither  committee  nor  secretary  had  any 
means  of  checking  him  : — Held,  that  there  was 
evidence  to  justify  the  justices  in  holding  that 
it  was  only  a  pretended  club,  and  that  E.  was 
the  real  proprietor.  Evans  v.  Hemingway, 
62  J.  P.  134— D. 

Keeping  open  Billiard  Table  after  Closing 
of  Premises— Beerhouse.] — A  beerhouse  keeper 
who  has  obtained  a  licence  to  keep  a  billiard 
table,  and  allows  billiards  to  be  played  after 
the  closing  hour  for  the  beerhouse,  is  not  liable 
to  the  penalty  in  8  &  9  Vict.  c.  103,  8. 13,  which 
applies  only  to  victuallers  licensed  under  9  Geo.  4, 
c.  61.    Bent  v.  Lister,  52  J.  P.  389— D. 

Bale  after  closing  of  Premises — Lodger.] — By 

the  Licensing  Act,  1874  (37  &  88  Vict.  c.  49), 
s.  9,  "Any  person  who  during  the  time  at 
which  premises  for  the  sale  of  intoxicating 
liquors  are  directed  to  be  closed  .  .  .  sells  .  .  . 
any  intoxicating  liquor  ...  or  allows  any  in- 
toxicating liquors  although  purchased  before 
the  hours  of  closing  to  be  consumed  in  such 
premises,"  is  liable  to  a  penalty.  By  s.  10 
"  nothing  in  this  Act  .  .  .  contained  shall  pre- 
clude a  person  licensed  to  sell  any  intoxicating 
liquor  to  be  consumed  on  the  premises,  from 
selling  such  liquor  at  any  time  to  bona  fide 
travellers  or  to  persons  lodging  in  his  house." 
The  appellant,  a  licensed  innkeeper,  sold  and 
supplied  to  a  bona  fide  lodger  in  his  house 
intoxicating  liquors  which  were  consumed, 
during  the  time  at  which  the  premises  are 
directed  to  be  closed,  in  a  private  room  on  the 
premises  by  the  lodger  and  bona  fide  guests  of 
the  lodger  after  a  dinner  given  by  him  to  them  : 
— Held,  that  the  appellant  was  not  liable  to  be 
convicted  under  8. 9  of  the  Act.  Pine  v.  Barnes, 
20  Q.  B.  D.  221  ;  57  L.  J.,  M.  C.  28  ;  58  L.  T. 
620  ;  36  W.  B.  473  ;  52  J.  P.  199— D. 

Selling  Liquor  at  Unlicensed  Flaee — Wife 
Licensed — Husband  taking  8piritf  to  Unlicensed 
House  to  be  Baffled  for.]— The  appellant,  Mrs.  S., 
a  married  woman,  who  had  a  licence  to  sell  in- 
toxicating liquor,  was  convicted  under  the  3rd 
section  of  the  Licensing  Act,  1872,  of  selling 
intoxicating  liquor  at  a  place  where  she  was  not 
authorised  by  her  licence  to  sell  the  same.  The 
husband  of  the  appellant  was  about  to  be  called 
as  a  witness  for  the  respondent,  but  it  was 
objected  that  he  was  not  a  competent,  or  if 
competent,  not  a  compellable  witness,  and  the 
objection  was  allowed.  Evidence,  however,  was 
given  by  a  constable  of  a  statement  made  to 
him  by  the  husband,  in  the  wife's  presence,  to 
the  effect  that,"  on  the  24th  December,  1883, 
he  took  spirits  from  the  licensed  house  of  the 
appellant  to  the  house  of  one  B. ;  the  drink  was 
then  raffled  for,  and  he  was  present  during  the 
raffle  ;  the  money  was  put  in  a  basin  on  the 
table,  and  it  was  afterwards  brought  to  the  inn 
and  put  on  a  table  there ;  one  or  other  of 
them,  the  landlady  or  the  husband  himself,  took 
it  from  the  table;  during  the  time  of  the  raffle , 


he  took  some  spirits  np  to  B.*s  house ;  he  took  it 
all."  Other  witnesses  proved  that  the  liquor 
brought  from  the  appellant's  house  by  her  hus- 
band was  raffled  for  at  B.'s  house,  the  husband 
himself  being  present  at  the  time.  The  justices 
convicted  the  appellant  of  selling  the  liquor  at 
B'.s  house  : — Held,  that  what  took  place  at  B.'s 
house  was  a  transaction  in  the  nature  of  a  sale 
within  the  meaning  of  s.  62  of  the  act,  and 
that,  as  the  appellant  was  a  competent  witness 
and  did  not  contradict  the  statement  made  by  her 
husband,  there  was  sufficient  evidence  to  support 
the  conviction.  Seager  v.  White,  51  L.  T.  261 ; 
48  J.  P.  436— D. 

Bale  of  Intoxicating  Liquor  in  marked  Mea- 
sure.]—By  the  Licensing  Act,  1872,  s.  8,  all  in- 
toxicating liquor  which  is  sold  by  retail,  and  not 
in  cask  or  bottle,  and  is  not  sold  in  a  quantity 
less  than  half  a  pint,  is  to  be  sold  in  measures 
marked  according  to  the  imperial  standards.  A 
publican,  being  asked  for  a  pint  of  beer  by  a 
customer,  went  into  an  inner  room,  where  he 
drew  the  beer  into  a  marked  measure  and  poured 
it  into  a  jug,  which  he  then  brought  into  the 
room  where  the  customer  was  sitting  and  handed 
to  him.  The  customer  could  not  see  the  beer 
drawn,  and  never  saw  it  while  in  the  measure. 
The  publican  having  been  convicted  of  an  offence 
under  s.  8 : — Held,  that  the  sale  was  not  complete 
until  the  beer  was  handed  to  the  customer,  that 
the  beer  was  not  sold  in  a  marked  measure  as 
required  by  the  statute,  and  that  the  conviction 
was  right.  Addy  v.  Blake,  19  Q.  B.  D.  478;  6* 
L.  T.  711  ;  85  W.  B.  719  ;  51  J.  P.  599  ;  16  Cox, 
C.  C.  259— D. 

Constable's  Demand  to  enter  Premise!  Bids* 
Licences  only.] — The  respondent,  being  a  person 
duly  licensed  as  a  dealer  in  spirits  in  England 
under  23  &  24  Vict,  c  114,  s.  195,  and  holding 
an  additional  excise  licence  authorising  him  to 
sell  by  retail,  in  any  quantity  not  less  than  one 
reputed  quart  bottle,  at  a  shop,  spirits  not  to  be 
drunk  or  consumed  on  the  premises,  under  24  & 
25  Vict.  c.  21,  8.  2,  refused  to  admit  the  respon- 
dent, a  constable,  who  demanded  to  enter  the 
appellant's  premises  in  pursuance  of  s.  16  of  the 
Licensing  Act,  1874.  Upon  complaint  by  the 
appellant,  justices  refused  to  convict  the  respon- 
dent : — Held,  upon  a  case  stated,  that  s.  16  of 
the  Act  of  1874  applies  only  to  premises  in 
respect  of  which  a  licence,  as  denned  by  the 
Licensing  Act,  1872,  s.  74,  has  been  granted  and 
is  in  force,  and  not  to  the  respondent's  premises, 
which  were  required  to  be  licensed  by  the  Excise 
only,  and  that  the  justices  were  right  Earrito* 
v.  MeVMeel,  50  L.  T.  210 ;  48  J.  P.  469-D. 

Intention   of   Constable.]— S.,  a  police 

constable,  within  the  hours  of  closing  on  Sunday, 
knocked  at  the  door  of  a  public-house,  and  de- 
manded entry,  the  sole  reason  given  being  that 
he  wanted  to  visit  the  house.  He  was  told  there 
was  no  one  inside,  and  the  door  being  locked,  he 
was  refused  entry.  In  point  of  fact  the  con- 
stable's object  was  to  inspect  all  the  licensed 
houses  to  prevent  or  detect  offences,  but  he  had 
no  special  ground  of  suspicion : — Held,  that  the 
conviction  could  not  be  set  aside  if  the  justices 
were  satisfied  as  to  the  bona  fide  intention  of  the 
constable  to  prevent  violation  of  the  act  JbQ« 
v.  Dobbins,  48  J.  P.  182— D. 


1057 


INTOXICATING    LIQUORS. 


1058 


Convietion  of  Tenant— Forfeiture  of  Lioenee— 
Application  by  Owner  for  Lioenee — Berasal — 
light  of  Appeal.]— The  appeal  clauses  of  9  Geo.  4, 
c.  61  (the  Intoxicating  Liquors  Licensing  Act, 
1828)  are  incorporated  in  37  &.  38  Vict.  c.  49  (the 
Licensing  Act,  1874),  s.  15,  and  therefore  when 
the  licence  of  a  public-bouse  keeper  is  forfeited 
by  conviction  under  35  &  36  Vict.  c.  94,  8.  9,  and 
the  owner  of  the  premises  duly  applies  under  37 
k  38  Vict.  c.  49,  s.  15,  to  special  sessions  for  a 
licence  and  it  is  refused,  he  has  a  right  of  appeal 
to  quarter  sessions.  Reg.  or  Newton  v.  West 
Riding  JJ.,  11  Q.  B.  D.  417  ;  52  L.  J.,  M.  C.  99  ; 
48  J.  P.  149— D. 


—  Appeal  by  Owner— "  Person  aggrieved  " 
— leeord  of  Conviction  on  Lioenee.  1— Where  a 
ticensed  person  is  convicted  of  an  offence  under 
the  Licensing  Acts,  1872-74,  and  the  justices 
direct  the  conviction  to  be  recorded  on  his 
lioenee,  the  owner  of  the  licensed  premises,  who 
wm  not  and  could  not  have  been  a  party  to  the 
proceedings  before  the  justices,  is  not  a  "  person 
aggrieTed^  within  s.  52  of  the  act  of  1872,  and 
hes  no  right  of  appeal  against  the  order.  Reg. 
▼.  Andever  JJ.f  16  Q.  B.  D.  711 ;  55  L.  J.,  M.  C. 
H3;  55  L.  T.  23 ;  34  W.  B.  456  ;  50  J.  P.  549 
-D. 

Against  Exeiee.]— See  supra,  1. 


6.  coyekahts  respecting  licensed 
Houses — Licences. 

Mortgagees  in  Possession,  Lease  by— Clause 
tending  Tenant  to  take  Boer,  Ac,  from  them— 
Aetoont — Interest.] — A  leasehold  public-house 
was  mortgaged  to  brewers  who  entered  into  pos- 
•esnonfand  after  carrying  on  the  business  for 
«ome  time,  leased  the  public-house  to  tenants, 
with  agreements  binding  the  tenants  to  take 
their  beer,  &c.t  from  them,  under  which  they 
derived  a  large  profit  from  the  sale  of  beer,  &c. 
They  afterwards  sold  the  public-house  under 
the  power  of  sale  in  the  mortgage : — Held,  in 
m  action  by  the  mortgagor  for  an  account,  that 
the  mortgagees  were  not  entitled  to  interest  on 
the  cost  of  beer  supplied  while  they  were  carry- 
ing on  the  business ;  that  they  were  not  bound 
to  account  for  the  profits  derived  from  the  sale 
of  beer,  4c.,  to  the  tenants  of  the  public-house ; 
bat  that  they  were  chargeable  with  the  increased 
rent  they  might  have  obtained  if  the  tenants  had 
been  under  no  restriction  as  to  purchasing  their 
beer.  White  v.  City  of  London  Brewery  Com- 
J»»y,  39  Ch.  D.  559  ;  58  L.  J.,  Ch.  98  ;  60  L.  T. 
19;  36  W.  B.  881— North,  J.  Anlrmed,  W.  N. 
1889,  p.  114—  C.  A. 

Covenant  to  take  Boor  from  Lessors — Proviso 
to  lodnetion  of  Bent  on  Performance  of  Cove- 
Mat— Penalty.] — The  lease  of  a  public-house 
contained  a  covenant  that  the  lessee  and  his 
Mngns  would,  during  the  term,  purchase  all 
beer  required  for  the  business  from  the  lessors, 
a  proviso  for  re-entry  on  non-payment  of  rent, 
or  pon-perfonnance  of  the  covenants,  and  a  pro- 
vision for  reduction  of  the  rent  so  long  as  the 
kssee  should  purchase  beer  from  the  lessors : — 
Held,  that  the  covenant  to  purchase  beer  was 
**  absolute  one,  and  that  the  lessee  had  not  the 
alternative  of  dealing  with  a  rival  brewer  and 


paying  the  unreduced  rent.    Hanbury  v.  Oundy, 
58  L.  T.  155— Stirling,  J. 

Lioenee  attached  to  Freehold  Premises— Pro- 
ceeds of  Sale— Beal  or  Personal  Estate.]— The 
proceeds  of  sale  of  a  deceased  publican's  retail 
spirit  licence  constitute  personal  estate,  although 
such  licence  is  attached  to  premises  of  freehold 
tenure.  Brennan  v.  Dorney,  21  L.  B.,  Ir.  353 — 
C.  A. 

Delivery  up  of  Spirit  Licenoe— Order  for.]— 
In  an  action  by  a  mortgagee,  claiming  posses- 
sion of  licensed  premises,  and  a  delivery  up  of 
a  licence  attached  thereto,  the  court  has  power 
to  order  such  licence  to  be  delivered  up  to  the 
plaintiff.  Crowley  v.  Fenry,  22  L.  B.,  Ir.  96— 
Q.  B.  D. 

Sale  of  Lieenied  Premises— Assignment  of 
Licenoe— Bankruptcy— Bights  of  Assignee.]— 
Under  a  writ  of  fi.  fa,  against  G.,  certain  chat- 
tels and  his  interest  in  licensed  premises  were 
seized,  advertised  for  sale,  and  sold  on  the  31st 
January,  1885,  by  the  sheriff.  No  reference  to 
the  licence  was  made  either  in  the  advertise- 
ments, conditions  of  sale,  or  deed  of  assignment, 
which  was  dated  the  10th  Feb.,  1885,  except 
that  in  the  latter  the  premises  were  described 
as  "  licensed,"  as  occupied  by  G.  as  a  licensed 
publican,  and  the  deed  did  not  purport  to  assign 
the  licence.  The  sheriff  was  not  possessed  of 
the  licence,  but  it  was  subsequently  indorsed 
and  delivered  by  G.  to  the  purchaser.  On  the 
4th  April,  1885,  O.  was  adjudicated  a  bankrupt. 
The  purchaser,  however,  obtained  an  ad  interim 
transfer  of  the  licence  on  the  14th  April,  and  an 
absolute  transfer  at  the  October  Sessions.  In' 
August  the  hearing  of  a  charge  and  discharge, 
raising  a  question  as  to  the  property  in  the 
licence,  was  adjourned  by  consent  to  November, 
on  the  terms  that  the  position  of  the  parties 
should  be  considered  at  the  hearing  as  if  un- 
altered :— Held,  that  the  licence  did  not  pass 
under  the  sheriff's  assignment ;  that  the  subse- 
quent indorsement,  delivery,  and  transfer  of  it 
by  G.  to  the  purchaser  were  void  as  against 
the  assignees  in  bankruptcy  of  G.,  and  that  the 
licence  formed  part  of  tne  estate  and  effects  of 
G.  in  the  bankruptcy  matter ;  but  having  regard 
to  the  proceedings  at  the  licensing  sessions,  the 
court  declined,  for  the  time  being,  to  make  any 
order  for  the  transfer  of  the  licence  to  the 
assignee  in  bankruptcy,  or  to  award  damages 
against  the  purchaser  for  withholding  the 
licence.     <?tf«*r,  In  r#,  17  L.  B.,  Ir.  1— Bk. 


INVENTION. 


See  PATENT. 


INVESTMENT. 

See  TBUST  AND  TBUSTBB. 

M  M 


1059 


IRELAND— ISLE   OF  MAN— JUDGMENT. 


1060 


IRELAND. 

Land  Law  (Ireland)  Act,  1881— Pasture— 
Land  Let  to  be  need  wholly  or  mainly  for 
Pasture.]-— By  a  lease  in  1861  lands  in  Ireland 
of  more  than  100  acres  were  demised  for  twenty- 
one  years,  the  tenant  covenanting  that  he  would 
not  without  the  landlord's  consent  break  up  or 
have  in  tillage  in  any  one  year  any  greater 
quantity  than  ten  acres,  out  of  a  certain  speci- 
fied portion,  and  that  he  would  manage  the  land 
in  a  good  and  husbandlike  manner  and  in  due 
and  regular  course,  so  that  the  same  might  not 
be  in  any  way  injured.  At  the  time  of  the 
demise  there  were  only  fifteen  acres  in  tillage, 
and  the  rest  was  used  as  a  pasture,  but  was  not 
ancient  pasture,  the  whole  farm  having  been  put 
in  tillage  (in  different  portions  at  different 
times)  between  1852  and  1861.  The  tenant  used 
the  farm  as  a  dairy  farm  ;  frequently  meadow - 
ing  different  portions  (about  twenty  acres  each 
year),  and  sometimes  selling  hay  off  the  land  : — 
Held,  that  the  farm  was  not  a  "  holding  let  to 
be  used  wholly  or  mainly  for  the  purpose  of 
pasture  "  within  the  Land  Law  (Ireland)  Act, 
1881  (44  k  46  Vict.  c.  49),  s.  58,  sub-s.  (3). 
Westropp  v.  Mligott,  9  App.  Cas.  815  ;  52  L.  T. 
147-ETL.  (Ir.). 


ISLE  OF  MAN. 

Equity  to  a  Settlement.]— The  doctrine  of  a 
wife's  equity  to  a  settlement  is  unknown  to 
Manx  law.  Maryland,  In  re,  66  L.  J.,  Ch.  681  ; 
£4  L.  T.  635  ;  34  W.  R.  640— Kay,  J. 


JERSEY. 

See  COLONY. 


JOINT  TENANCY. 

Partition  of.]— See  Partition. 

Creation  of,  by  Will.]— See  Will  (Interest 
Passing). 

In  othor  Cases.]— See  Tenant. 


JUDGMENT. 

Foreign.] — See  International  Law. 
Praetiee  as  to.J— See  Practice  (Judgment). 


Judgment   Creditor,   Eights  of  ]— See  ante, 
Execution. 


Filing 

Act. 


Consent   Order   tor.]— See.  Debtors 


In  County  Court.] — See  County  Court. 

Estoppel  by.]— See  Estoppel. 

Judgment  Debt — Interest— Insolvent  Debtor- 
Surplus  in  hands  of  Assignee  after  Payment  of 
Principal  of  all  Debts.]— The  effect  of  s.  17  of 
1  &  2  Vict.  c.  110,  is  that  interest  at  the  rate  of 
four  per  cent  is  a  debt  necessarily  attached  to 
every  judgment  debt,  and  recoverable  at  law  as 
a  debt ;  and  the  judgment  creditor  is  not  con- 
fined to  the  remedy  by  execution  mentioned  in 
the  section.  Therefore,  where,  in  the  case  of  a 
deceased  insolvent  debtor  who  became  insolvent 
before  1869,  a  sum  of  money  subsequently  came 
to  the  hands  of  the  assignee,  out  of  which  the 
principal  of  all  the  debts  entered  in  the  debtor's 
schedule  was  paid,  it  was  held  that  the  judgment 
debts  were  not  satisfied  within  the  meaning  of 
s.  92  (since  repealed)  of  that  Act  until  interest  was 
paid,  and  the  assignee  was  ordered  to  pay  interest 
before  handing  over  any  surplus  to  the  repre- 
sentatives of  the  insolvent.  Lewi*,  Bx  parte, 
Clagett,  In  re,  86  W.  B.  663— C.  A. 

Merger  of  Several  Liability  by  Joint  Judg- 
ment.]—The  firm  of  D.  having  been  employed 
by  the  executors  of  B.  to  sell  certain  crops,  fcc., 
paid  over  a  part  of  the  proceeds,  but  were 
adjudicated  bankrupt  on  the  petition  of  the 
executors  of  B.  in  1880  upon  a  judgment  for  the 
balance.  The  executors  of  B.  proved  as  creditors 
of  the  joint  estate.  Subsequently  H.  S.  D.,  one 
of  the  partners  in  the  bankrupt  firm,  became 
entitled  to  a  legacy  and  to  other  moneys,  and  the 
executors  of  B.  attempted  to  withdraw  the  proof 
against  the  joint  estate  and  prove  against  the 
separate  estate  of  H.  8.  D.  The  trustee  rejected 
the  proof  on  the  ground  that  the  creditors  were 
bound  by  their  election,  and  his  decision  was 
reversed  by  the  county  court  judge.  On  an 
appeal  from  his  decision  : — Held,  that  the  ground 
upon  which  the  trustee  had  rejected  the  proof 
was  wrong,  but  that,  in  order  to  entitle  them  to 
prove  against  the  separate  estate  of  H.  S.  D„ 
the  respondents  must  prove  that  they  had  a  sepa- 
rate cause  of  action  against  him.  Held,  also, 
upon  an  argument  that  the  separate  cause  of 
action  was  merged  in  the  joint  judgment,  that 
it  was  not  so  merged.  Chandler,  Ex  parte, 
Davison,  In  re,  13  Q.  B.  D.  60  ;  60  L.  T.  635- 
Cave,  J. 

Merger  of  Covenant  by  Judgment — Interest] 

— A  mortgage  deed  contained  a  covenant  for 
payment  of  a  principal  sum  and  interest  at  five 
per  cent,  on  a  certain  day ;  and  there  was  a 
further  covenant  by  the  mortgagor  that  if  the 
said  principal  sum  should  remain  unpaid  after 
the  date  fixed  for  payment,  he  would,  so  long  as 
the  same  or  any  part  thereof  should  remain  un- 
paid, pay  interest  thereon  at  five  per  cent.  The 
mortgagee  recovered  judgment  for  principal, 
interest  to  date,  and  costs  : — Held,  that  the  cove- 
nant to  pay  the  principal  sum  was  merged  in  the 
judgment,  that  the  true  construction  of  the 
separate  covenant  was  only  to  pay  interest  so 
long  as  any  part  of  the  principal  sum  remained 


JURISDICTION-JUSTICE   OF  THE  PEACE. 


1061 

due  under  the  covenant,  and  that  therefore  the 
mortgagee  was,  as  from  the  date  of  the  judg- 
ment, entitled  to  interest  on  the  judgment  debt 
at  four  per  cent,  only,  and  not  to  interest  at  five 
per  cent  on  the  principal  sum.  Popple  v. 
Sylvester  (22  Ch.  D.  98)  distinguished.  Fawings, 
Ex  parte,  Sneyd,  In  re,  25  Ch.  D.  338  ;  53  L.  J., 
Ch.  545 ;  50  L.  T.  109  ;  32  W.  R.  352— C.  A. 

Semble  (per  Fry,  L.  J.),  a  covenant  to  pay  j 
interest  may  be  so  worded  as  not  to  merge  m  a 
judgment  for  the  principal.    lb. 

Registration— Omission  to  Register  within 
five  Years  —  Priorities.]— A.,  B.,  and  C.  were 
judgment  creditors  of  D.  A.  registered  his  judg- 
ment on  the  12th  of  March,  1840,  but  never  re- 
registered. B.  registered  his  judgment  in  April, 
1842,  and  re-registered  in  March,  1848.  C. 
registered  his  judgment  on  the  18th  of  March, 
1845,  and  re-registered  on  the  16lh  of  March, 
1850.  Questions  having  arisen  as  to  the  priorities 
of  the  several  judgment  creditors,  the  fund  in 
court  being  insufficient  for  payment  in  full : — 
Held,  that  on  the  construction  of  the  statutes 
1  k  2  Vict.  c.  110,  s.  19, 2  &  3  Vict,  c  11,  s.  4,  and 
3  &  4  Vict.  c.  82,  s.  2,  and  upon  the  principle  laid 
down  in  Bearan  v.  Earl  of  Oxford  (6  D.  M.  & 
0. 492),  C.  was  first  entitled  to  take  out  of  the 
fund  the  sum  found  due  on  A.'s  judgment,  and 
then  that  B.  was  entitled  to  be  paid  the  full 
amount  of  his  judgment  before  C.  took  anything 
more  in  respect  of  his  judgment.  Kensington 
(Lord),  In  re,  Bacon  v.  Ford,  29  Ch.  D.  527  ; 
54  L.  J.t  Ch.  1085  ;  53  L.  T.  19  ;  33  W.  B.  689— 
Chitty,J. 


1062 


JUDICIAL  SEPARATION. 

See  HUSBAND  AND  WIFE. 


JURISDICTION. 

Of  '"■g1**1*  Court  over  Foreigners.]  —  See 
Ibtebkational  Law. 

Aeqnieaeenoe  or  Consent  does  not  give.] — 
Acquiescence  or  consent  does  not  give  to  a  court 
a  jurisdiction  of  which  the  court  is  not  possessed. 
Bisehojfshcim,  Ex  parts,  Ay  Inter,  In  re,  20 
Q.  B.  D.  262  ;  57  L.  J.,  Q.  B.  168 ;  36  W.  B. 
231— per  Lord  Esher,  M.  R. 

8.  r.  Beg.  v.  Shropshire  County  Court  Judge, 
20Q.B.  D.  248;  57  L.  J.,  Q.  B.  143 ;  58L.T.86; 
»  W.  R.  476— per  Hawkins,  J. 


JURY. 


See  PRACTICE  (TRIAL). 


JUSTICE  OP  THE  PEACE. 

1.  Dlsquali fixations,  1062. 

2.  Notice  of  Action,  1063. 
8.  Clerk  to  Justices.  1063. 

4.  Jurisdiction,  1063. 

5.  Practice  and  Procedure,  1067. 

6.  Special  Case  stated  by. 

a.  In  what  Cases,  1070. 

b.  Practice  on  Hearing,  1071. 

7.  Quarter  Sessions— Appeal  to,  1071. 

8.  Compelling  Justices  to  Act.—See  MAXDAMVB. 

1.  Disqualifications. 

Summoned  as  Witness.]— The  mere  fact  of  a 
subpoena  having  been  served  on  a  magistrate  to 
give  evidence  in  a  particular  case,  does  not  dis- 
qualify him  from  sitting  as  a  magistrate  in  the 
hearing  and  adjudication  of  that  case.  Beg.  v. 
Toohe,  32  W.  R.  753  ;  48  J.  P.  661— D. 

Interest— Bias— Advice  given  by  Justice 

—Attempt  to  bring  abont  Settlement] — Any 
pecuniary  interest  in  the  subject-matter  of  the 
litigation,  however  slight,  will  disqualify  a  magis- 
trate from  taking  part  in  the  decision  of  a  case. 
If  a  magistrate  has  such  a  substantial  interest, 
other  than  pecuniary,  in  the  result  of  the  hearing, 
as  to  make  it  likely  that  he  will  have  a  bias,  he 
is  disqualified.    The  fact  that  a  magistrate  has 
been  subpoenaed,  and  that  it  is  intended  to  call 
him  as  a  witness  at  the  hearing,  is  not  a  legal 
disqualification,  and  the  High  Court  will  not  on 
that  ground  prohibit  the  magistrate  from  sitting. 
A  magistrate,  who  was  a  surgeon,  attended  a 
patient  professionally  for  injury  caused  by  an 
assault.    He  endeavoured  to  induce  his  patient 
not  to  prosecute  for  the  assault,  and  conveyed  to 
him  a  message,  sent  by  the  person  who  had  com- 
mitted the  assault,  offering  an  apology  and  sug- 
gesting a  settlement     A  summons  was  issued 
for  the  assault,  the  magistrate  was  subpoenaed 
to  give  evidence  for  the  prosecution,  and  a  writ 
of  prohibition  was  obtained  to  prohibit  him  from 
sitting  at  the  hearing.    The  magistrate  moved 
to  set  aside  the  prohibition :— Held,  that  the  acts 
of  the  magistrate  did  not  show  that  he  had  such 
a  substantial  interest  in  the  result  as  to  make  it 
likely  that  he  would  have  a  bias,  and  that  the 
fact  of  his  being  subpoenaed  did  not  disqualify 
him  from  sitting,  ana  therefore  the  prohibition 
must  be  set  aside.    Beg.  v.  Farrant,  20  Q.  B.  D. 
58  ;  67  L.  J.,  M.  C.  17  ;  67  L.  T.  880  ;  36  W.  R. 
184  ;    62  J.   P.    116— D.      Cp.    Fobbing    Com* 
mtssioners  v.  Beg.,  11  App.  Cas.  449  ;  56  L.  J., 
M.  C.  1  ;  56  L.  T.  493  ;  34  W.  R.  721  ;  51  J.  P. 
227— H.  L.  (B.). 

Justioe  taking  active  Fart  in  Defending 
Appeal.]— Where  a  justice  of  the  peace  is  shown 
to  have  taken  an  active  part  in  defending  an 
appeal  against  a  decision  of  which  he  approves, 
but  to  which  he  was  no  party,  he  is  disqualified 
on  the  ground  of  probability  of  bias  from  taking 
part  in  deciding  the  appeal.  Beg.  v.  Cumberland 
J  J,  58  L.  T.  491  ;  62  J.  P.  502— D. 

Clerk  to  Justices  acting  as  Solicitor.]— The 
clerk  to  the  justices  should  not  act  as  solicitor 
for  one  of  the  parties  on  a  prosecution  before  his 
own  bench  of  justices,  but  such  an  interest  ir 
the  clerk  does  not  affect  the  jurisdiction  of  thi 
bench.    Beg.  v.  Brakenridge,  48  J.  P.  203— D. 

M  M  2 


1063 


JUSTICE    OF    THE    PEACE. 


1064 


2.  Notice  of  Action. 

Negligence  in  building  Polioo  Station.]— The 
building  of  a  police  station  is  an  act  done  by 
justices  in  the  execution  of  their  office  ;  and  the 
justices,  if  sued  for  negligence  in  the  building  or 
maintaining  thereof,  and  for  damage  arising 
therefrom,  are  entitled  to  the  protection  afforded 
by  11  &  12  Vict.  c.  44.  Hardy  v.  North  Riding 
JJ.,  50  J.  P.  663— Huddleston,  B. 


3.  Clerk  to  Justices. 

Acting   at    Solicitor   for   Prosecution.] — See 
Reg.  v.  Brakenridge,  supra. 


4.  Jurisdiction. 

Defect  in  Summons — Appearance  without  Ob- 
jection.]— The  jurisdiction  of  justices  is  not 
necessarily  ousted  by  a  defect  in  a  bastardy 
summons,  and  their  order  is  not  a  nullity  if  the 
defendant  appears  and  takes  no  objection  at  the 
hearing.  Reg.  v.  Fletcher,  61  L.  T.  334;  32 
W.  R,  828  ;  48  J.  P.  407— D. 

Wrongful  Arrest— Effect  ol]— G.,  licensed  to 
sell  tobacco  in  his  house  in  the  city  of  N.,  was 
found  hawking  and  selling  at  a  public-house  in 
the  county  division  of  T.,  four  miles  distant, 
and  was  arrested  and  conveyed  before  justices  at 
N.  next  day,  but  as  no  justices  were  then  sitting 
he  was,  on  his  own  recognizance,  remitted  to 
justices  who  sat  in  T.,  seven  days  after  the 
offence,  and  was  convicted.  G.  objected  to  the 
jurisdiction,  as  the  justices  were  not  acting 
forthwith,  nor  near  the  place  within  5  &  6 
Vict.  c.  93,  s.  13  : — Held,  that  whether  G.  was 
illegally  arrested  and  detained  or  not,  the 
justices  of  T.  having  jurisdiction,  and  he  being 
charged  before  them,  the  conviction  was  valid. 
Gray  v.  Commissioners  of  Customs^  48  J.  P.  343 
— D. 

"  Order,"  what  is — Compensation — Settlement 
by  Two  Justices.] — The  "  settlement "  of  com- 
pensation by  two  justices  for  lands  taken  or 
injuriously  affected  under  s.  22  of  the  Lands 
Clauses  Act,  1845,  is  not  an  "order"  within 
Jervis's  Act,  and  the  complaint  need  not  be 
made  within  six  months  of  the  matter  arising  ; 
neither  is  it  a  decision  by  which  "  damages  are 
directed  to  be  paid  "  enforceable  by  distress 
within  8.  140  of  the  Railways  Glauses  Act, 
1846.  Edmundson,  In  re  (17  Q.  B.  67),  over- 
ruled. Reg.  v.  Edwards,  13  Q.  B.  D.  686; 
63  L.  J.,  M.  C.  149  ;  51  L.  T.  586  ;  49  J.  P.  117 
—C.A. 

Offence  oommitted  in  one  Petty  Sessional 
Division — Committal  in  different   Division.] — 

Justices  of  the  peace  sitting  in  and  acting  for 
one  petty  sessional  division  of  a  county  have 
jurisdiction  to  commit  for  trial  on  a  charge 
arising  in  another  petty  sessional  division  of 
the  same  county,  and  are  not  bound  to  remand 
such  charge  for  hearing  in  the  division  in  which 
the  offence  was  committed.  Reg.  v.  Beckley,  20 
Q.  B.  D.  187  ;  67  L.  J.,  M.  C.  22  ;  67  L.  T.  716  ; 
36  W.  R.  160  ;  52  J.  P.  120  ;  16  Cox,  C.  C.  331 
— C.  C.  R. 


Assault— Complaint  by  or  on  behalf  of  the 
Party  aggrieved— Condition  precedent.]— A  com- 
plaint by  or  on  behalf  of  a  person  aggrieved  by  a 
common  assault  or  battery  is  a  necessary  condi- 
tion precedent  to  give  justices  jurisdiction  to 
summarily  convict  the  offender  under  24  &  25 
Vict  c.  100,  s.  42.  A  police-constable  who  takes 
a  charge  of  common  assault  from  the  person 
assaulted  is  not,  on  the  failure  of  the  complainant 
personally  to  prefer  the  charge  before  the  jus- 
tices, a  party  who  can  prefer  the  complaint  on 
behalf  of  the  person  aggrieved.  Nicholson  t. 
Booth,  57  L.  J.,  M.  C.  43  ;  58  L.  T.  187  ;  52  J.  P. 
662  ;  16  Cox,  C.  C.  373— D. 


Claim  of  Bight.] — A  person  making  a 


bona  fide  claim  of  right  to  be  present  as  one  of 
the  public  in  a  law  court  at  the  hearing  of  a 
suit,  is  not  justified  in  committing  an  assault 
upon  a  polioe-constable  and  an  official  who 
endeavour  to  remove  him.  Such  a  claim  of 
right  does  not  oust  the  jurisdiction  of  the 
magistrate  who  has  to  try  the  charge  of 
assault,  and  he  may  refuse  to  allow  cross- 
examination  and  to  admit  evidence  in  respect 
of  such  a  claim.  Reg.  v.  Eardley,  49  J.  P.  551 
— D. 

Claim  of  Right— Title  to  Land— Trespass.]— 

To  oust  the  summary  jurisdiction  of  justices  on 
the  ground  that  a  bona  fide  question  of  title 
arises,  it  is  sufficient  to  show  that  the  act  com- 
plained of  as  a  trespass  was  oommitted  in  the 
exercise  of  a  supposed  right,  which  the  alleged 
trespasser  bona  fide  believed  that  he  possessed. 
Mathews  v.  Carpenter,  16  L.  R.,  Ir.  420— 
Ex.D. 

Trespassing  on  Railway — Public  Right 

of  Way  before  Railway  made.] — The  appellant 
was  convicted  by  justices  in  petty  sessions— 
(1)  under  the  88th  section  of  45  &  46  Vict 
c.  ccxiv.,  for  having  unlawfully  trespassed  on 
a  railway  in  such  a  manner  as  to  expose 
himself  to  danger;  and  (2)  under  the  23rd 
section  of  the  Regulation  of  Railways  Act, 
1868,  for  having  been  unlawfully  on  the 
railway  after  receiving  warning  not  to  go  or 
pass  thereon.  There  was,  prior  to  the  making 
of  the  railway,  and  prior  to  the  Acts  of  Parlia- 
ment authorizing  the  same,  a  public  right  of  way 
for  persons  on  foot  over  the  land  now  occupied 
by  the  railway  at  the  place  where  the  appellant 
crossed,  and  the  appellant  went  upon  and  crossed 
the  railway,  in  the  assertion  of  the  right  of  way 
which  formerly  existed,  and  believing  that  he 
was  entitled  to  do  bo  by  virtue  thereof  .-—Held, 
that  the  conviction  on  both  summonses  was 
wrong— (1)  because  the  claim  of  the  right  of 
way  set  up  by  the  appellant  ousted  the  juris- 
diction of  the  justices  to  determine  the  case; 
and  (2)  because  there  were  no  provisions  in  the 
Act  of  Parliament  extinguishing  the  right  of 
way,  which  was  consequently  still  in  existence. 
Cole  v.  Miles,  67  L.  J.,  M.  C.  132  ;  60  L.T.145; 
36  W.  R.  784  ;  53  J.  P.  228— D. 

Obstruction  in    Street — Highway.]— A 

shopkeeper  in  a  borough  placed  goods  upon  the 
pavement  in  front  of  his  shop  for  sale.  Upon 
being  summoned  under  the  Towns  Police 
Clauses  Act,  1847,  for  obstructing  the  footway, 
he  contended  that  he  bona  fide  claimed  the 
right  to  place  his  goods  there.    The  justices  con- 


1065 


JUSTICE    OF   THE    PEACE. 


1066 


ndered  that  their  jurisdiction  was  ousted,  but 
stated  a  case  : — Held,  that  the  justices  ought  to 
determine  whether  the  land  on  which  the  goods 
were  placed  was  part  of  the  public  highway  or 
not,  that  no  question  of  title  was  involved,  and 
tint  their  jurisdiction  was  not  ousted.  Leicester 
Urban  Sanitary  Authority  v.  Holland,  57  L.  J., 
M.  C.  75 ;  62  J.  P.  788— D. 

(Mar  for  Delivery  of  Money  "oharged"  to 
iavt  been  fraudulently  obtained.]— By  2  &  3 
Vict  c  71,  s.  29,  u  if  any  money  or  goods  charged 
to  be  stolen  or  fraudulently  obtained  shall  be  in 
the  custody  of  any  constable  by  virtue  of  any 
warrant  of  a  justice,  or  in  prosecution  of  any 
charge  of  felony  or  misdemeanour  in  regard  to  the 
obtaining  thereof,  and  the  person  charged  with 
stealing  or  obtaining  possession  as  aforesaid  shall 
not  be  found,  or  shall  have  been  summarily  con- 
futed or  discharged,  or  shall  have  been  tried  or 
acquitted,  or  if  such  person  shall  have  been  tried 
and  found  guilty,  but  the  property  so  in  custody 
shall  not  have  been  included  in  any  indictment 
upon  which  he  shall  have  been  found  guilty,  it 
shall  be  lawful  for  any  magistrate  to  make  an 
order  for  the  delivery  of  such  goods  or  money  to 
the  party  who  shall  appear  to  be  the  rightful 
owner  thereof." — An  accused  person,  having  been 
arrested  by  a  police  constable,  was  taken  to  a 
police  station,  where  she  was  searched,  and  a 
•did  of  108/.   was  found  upon  her,  and  taken 
possession  of  by  the  police.    In  the  charee-sbeet 
kept  at  the  police  station  the  following  charge 
against  her  was  entered  : — "  Fraudulently   ob- 
taining on  the  10th  instant  the  sum  of  5*.  from 
Miss  M.,  and  also  the  sum  of  6s.  from  Miss  B., 
by  representing  that   she  (the  prisoner)    was 
collecting  subscriptions  for  the  children's  treat 
of  St.  Peter's,  Eaton  Square,  and  further  with 
endeavouring  to  procure  charitable  contributions 
by  false  pretences."    On  the  following  day  she 
was  brought  before  a  metropolitan  police  magis- 
trate, who  had  the  charge-sheet  before  him,  and 
convicted  her  summarily  in  respect  of  the  two 
first  offences  specified  therein,  and  sentenced  her 
to  two  consecutive  terms  of  imprisonment.    At 
the  hearing,  in  addition  to  Miss  M.  and  Miss  B., 
three  other  ladies  were  called  who  proved  that 
she  had  obtained  from  them  various  small  sums, 
amounting  to  about  21.  5*.,  by  making  similar 
fraudulent  representations : — Held,  upon  those 
facts,  that  the  money  found  upon  the  prisoner 
was  not  money   "  charged "  before  the  magis- 
trate to  be  stolen  or  fraudulently  obtained  within 
the  meaning  of  s.  29,  and  therefore  that  he  had, 
after  the  conviction,  no  jurisdiction  to  make  an 
oiuer  under  that  section  for  the  delivery  to  her 
of  the  whole  of  the  1082.  by  the  constable  in 
whose  custody    it   had  remained.     The  word 
*•  charged"  in  s.  29  is  used  in  its  technical  legal 
tense,  and  imports  a  formal  charge  made  before 
a  magistrate  against  an  accused  person  of  having 
stolen  or  fraudulently  obtained  specific  goods  or 
money,  which  charge  the  accused  is  called  upon 
to  answer,  and  is  given  an  opportunity  of  an- 
swering.   Reg.  v.  d'Eyncmrt,  21  Q.  B.  D.  109  ; 
$7  L.  J.,  M.  0.  64  ;  37  VV.  R.  59  ;  52  J.  P.  628— 
D. 

Sat  Judicata  What  if  a  Hearing.]— L.  was 
charged  with  night  poaching  under  9  Geo.  4. 
c  69,  and  in  course  of  cross-examination  of  pro- 
secutor's witnesses,  the  justices  considered  he  had 
been  illegally  arrested,  and  discharged  him.    L. 


was  again  summoned  for  the  same  offence  on  the 
same  facts,  when  the  justices  held  that  they  had 
uo  jurisdiction,  as  the  former  case  was  res  judi- 
cata : — Held,  that  the  justices  had  rightly  decided. 
Reg.  v.  Brackenridge,  48  J.  P.  293— D.  See  also 
ante,  col.  732. 

• 
Wrongful  Assumption  of  Jurisdiction.]— Where 
there  has  been  a  taking  and  exercise  of  the 
jurisdiction  of  magistrates,  even  if  that  juris- 
diction has  been  wrongly  exercised,  and,  in  the 
judgment  of  the  court,  wrongly  assumed,  the 
court  will  not  interfere  by  appeal  to  correct  it. 
lb. — Per  Coleridge,  C.  J. 

Dispersing  Mooting  believed  to  be  Unlawful — 
Apprehended  Breach  of  the  Peace.] — In  an  action 
for  assault  and  battery,  the  defendant  pleaded 
that  he  was  a  justice  of  the  peace  for  the 
county  where  the  alleged  assault  was  com- 
mitted ;  and  in  paragraphs  11  and  12  (substan- 
tially the  same)  of  his  defence  alleged  that  divers 
persons  unlawfully  conspired  together  to  solicit 
tenants,  in  breach  of  their  respective  contracts, 
to  refuse  to  pay  rent  to  the  owners  of  their 
lands  ;  and  that  on  the  day  of  the  alleged 
assault,  the  plaintiff,  being  one  of  such  con- 
spirators, and  divers  other  persons,  met  and 
assembled  in  the  said  county  with  intent,  as 
the  defendant  believed,  and  had  reasonable  and 
probable  grounds  for  believing,  to  promote  and 
carry  into  effect  the  said  unlawful  conspiracy  ; 
that  the  defendant  being  present  at  the  meeting, 
requested  the  plaintiff  and  others  so  assembled 
to  disperse,  and  upon  their  failing  to  do  so  the 
defendant  laid  his  hand  on  the  plaintiff  to 
separate  and  disperse  the  meeting;  using  no 
more  force  than  was  necessary ;  such  being  the 
assault  and  battery  complained  of  : — Held,  that 
the  11th  and  12th  paragraphs  were  bad  on 
demurrer,  for  not  alleging,  as  matter  of  fact, 
that  the  meeting  was  being  held  for  the  purpose 
of  promoting  or  carrying  into  effect  the  objects 
of  the  alleged  conspiracy.  01 Kelly  v.  Harvey, 
14  L.  B.,  Ir.  105  ;  15  Cox,  C.  C.  435— C.  A. 

The  13th  paragraph  of  the  defence  set  out  cer- 
tain inflammatory  placards  posted  by  the  pro- 
moters of  the  meeting  and  their  opponents,  that 
informations  were  sworn,  from  whicn  it  appeared 
that  if  the  meeting  was  held  the  public  peace 
would  be  broken ;  and  that  the  defendant  be- 
lieved, and  had  reasonable  grounds  for  believing, 
that  a  breach  of  the  peace  would  occur  if  the 
meeting  were  allowed  to  be  continued,  and  that 
the  public  peace  and  tranquillity  could  not 
otherwise  be  preserved  than  by  separating  and 
dispersing  the  plaintiff  and  others  so  assembled ; 
that  the  defendant,  being  present,  requested 
them  to  disperse,  which  they  neglected  to  do  j 
and  that  thereupon  the  defendant  laid  his  hand 
on  the  plaintiff  in  order  to  separate  and  disperse 
the  plaintiff  and  other  persons  so  assembled, 
using  no  more  violence  than  was  necessary  for 
that  purpose  ;  which  was  the  assault  and  battery 
complained  of.  There  was  not,  in  the  opinion  of 
the  court,  any  allegation  in  the  13th  paragraph 
shewing  that  the  meeting  was  in  itself  an  un- 
lawful assembly  : — Held,  on  demurrer,  that  the 
13th  paragraph  of  the  defence  was  a  good  answer 
to  the  action,  and  that,  even  assuming  that  the 
plaintiff  and  others  assembled  with  him  were 
engaged  in  no  unlawful  act,  yet,  as  there  were 
reasonable  grounds  appearing  on  the  pleadings  for 
the  belief  of  the  defendant  that  there  would  be 


1067 


JUSTICE    OF    THE    PEACE. 


1068 


a  breach  of  the  peace  if  the  meeting  continued  ; 
and  as  it  was  alleged  in  the  defence  that  there 
was  no  other  way  of  averting  such  breach  of  the 
peace,  except  by  stopping  the  meeting,  the 
defence  sufficiently  shewed  that  the  defendant 
was  justified  in  taking  the  necessary  steps  to 
stop  and  disperse  the  meeting,    lb. 

Public  Peace  —  Disturbance  of  —  Salvation 
Army.] — A.  B.  and  B.,  members  of  the  Salvation 
Army,  led  a  crowd  by  a  circuitous  route  through 
certain  of  the  streets  of  the  town  of  H..  to  the 
meeting-house  of  the  Army,  S.  during  the 
march  blowing  the  cornet  loudly  and  in  a  dis- 
cordant manner,  and  A.  and  B.  marching  with 
him  singing  hymns,  beating  time,  and  shooting 
loudly  "  Alleluia,"  and  other  expressions. 
Several  of  the  inhabitants  of  the  streets  through 
which  they  passed  were  disturbed  by  the  loud 
and  discordant  noises,  but  there  were  not  more 
than  fifteen  members  of  the  Salvation  Army 
present,  much  of  the  noise  being  caused  by  a 
mob  of  400  or  500  persons  following  vhem  and 
hostile  to  their  proceedings.  Information  having 
been  preferred  against  A.  B.  and  S.  under  a  local 
act,  by  which  a  penalty  was  imposed  on  any 
person  who  should  "  make,  excite,  or  join  in  any 
brawl,  or  otherwise  disturb  the  public  peace." 
it  was  found  as  a  fact  that  they  nad  disturbed 
the  public  peace  and  they  were  convicted  : — 
Held,  on  a  case  stated,  that  there  was  no  evi- 
dence of  the  offence  charged  upon  which  the 
defendants  could  be  rightly  convicted  under  the 
act  of  disturbing  the  public  peace,  and  that  the 
conviction  must  be  quashed.  Beaty  v.  Qlenirter, 
51  L.  T.  304— D. 

To  grant  Judicial  Separation.]— #r  Husband 
and  Wife,  III.  n. 

To  grant  Maintenance  to  Wife.]— See  Hus- 
band and  Wife,  VIII.  5. 

Orer  Gas  Companies.]— &><»  Gas  and  Gas 
Company. 

In  Metropolis  —  Detention  of  Dog.  ~\  —  Sre 
Animals. 

Excise  Penalty.]— See  Beg.  v.  Ingham, 

post,  Revenue  (Excise). 

On  Appointment  of  Assistant  Overseer.]— See 
Poob  Law. 

In  Bastardy  Cases.]— See  Bastabdy. 

In  Cases  relating  to  Attondanoe  at  School.]— 
See  Schools. 

Ai  to  Payment  of  Bates  under  Public  Health 

Act.]— See  Health,  IV. 

In  Cases  relating  to  Licenoes.]— See  Intoxi- 
cating L.IQUOB& 


6.  Pbactice  and  Pbocedube. 

Petty  Sessional  Court-house.]— In  a  borough 
which  had  no  separate  commission  of  the  peace, 
the  mayor  and  a  county  justice  used  to  sit  at  the 
Town  Hall,  where  they  held  petty  and  special 


sessions.  Since  the  Summary  Jurisdiction  Act, 
1879  (s.  20),  petty  sessions  had  been  held  at  the 
County  Hall  only,  but  latterly,since  the  Summary 
Jurisdiction  Act,  1884,  the  justices  again  satin 
the  Town  Hall :— Held,  that  the  Town  Hall  was 
a  petty  sessional  court-house  within  the  meaning 
of  s.  20  of  the  Summary  Jurisdiction  Act,  1879, 
being  a  place  where  justices  were  accustomed  to 
assemble.    Jones  v.  Jane*,  51  J.  P.  198 — D. 

Hearing  at  Petty  Sessions— Adjournment.]— 

Justices  sitting  at  petty  sessions  have  not  only 
the  power  of  adjournment  given  them  by  the 
Petty  Sessions  Act  (14  &  15  Vict.  c.  93),  but  also 
an  inherent  power  of  adjourning  a  case  at  any 
time  to  any  further  sessions.  But  where  a  case 
is  fully  heard  by  several  justices,  and  only 
adjourned  for  the  purpose  of  determining  and 
pronouncing  the  order,  the  same  justices  who 
heard  the  case  must  also  concur  in  the  order 
pronounced.  Beg.  v.  Cork  (Justice*),  18  L.  R* 
Ir.  99— Q.  B.  D. 

Conduct  of  Case  by  Complainant  in  Person— 
Cross-Examination  of  Witnesses.] — An  inspector 
of  a  society  for  the  prevention  of  cruelty  to 
animals  may,  under  the  14th  section  of  Jervis's 
Act,  conduct  the  case  and  examine  and  cross- 
examine  witnesses  at  the  hearing  before  the 
magistrates  of  an  information  preferred  at  the 
instance  of  the  society.  Duncan  v.  Tom*,  56 
L.  J.,  M.  C.  81  ;  56  L.  T.  719  ;  35  W.  R.  667  ;  51 
J.  P.  631  ;  16  Cox,  C.  C.  267— D. 

Cross-examination  by  Defendant's  Solicitor— 
Discretion  to  Prohibit.]— Certain  justices  at  a 
preliminary  inquiry  into  an  alleged  case  of  high- 
way robbery  declined  to  permit  the  solicitor 
representing  the  prisoners  to  cross-examine  the 
witnesses  for  the  prosecution,  believing  that 
they  possessed  a  discretionary  power  in  the 
matter.  S.  7  of  the  Summary  Jurisdiction  Act, 
1884,  provides  that  the  expression  "court  of 
summary  jurisdiction  "  in  s.  50  of  the  Summary 
Jurisdiction  Act,  1879,  shall  include  justices,  a 
justice  or  magistrate,  whether  acting  under  the 
Summary  Jurisdiction  Acts,  or  any  of  them,  or 
under  any  other  act,  or  by  virtue  of  his  or  their 
commission  or  by  the  common  law  : — Held,  that 
the  justices  had  no  discretion  to  prohibit  the 
solicitor  to  the  prisoners  from  cross-examining' 
the  witnesses  for  the  prosecution,  and  that  the 
right  to  cross-examine  is  absolute  both  under  the 
Summary  Jurisdiction  Acts  and  by  the  common 
law.  Beg.  v.  Griffith*,  54  L.  T.  280 ;  16  Cox, 
C.  C.  46— Pollock,  B. 

Charge  dismissed— Binding  Proaeoutor  over 
under  Vexatious  Indictments  Act]— Where  a 
prosecutor  bona  fide  prefers  before  a  justice,  and 
within  his  jurisdiction,  a  charge  or  complaint  in 
respect  of  an  offence  within  the  Vexatious  In- 
dictments Act,  1859,  and  the  justice  dismisses  it 
for  want  of  evidence,  such  dismissal  is  equivalent 
to  a  refusal  to  commit,  and  the  prosecutor  is 
entitled  to  require  the  justice  to  take  his  recog- 
nisance to  prosecute  the  charge  or  complaint  by 
way  of  indictment.  Beg.  v.  London  (Magor% 
54  L.  T.  646  ;  50  J.  P.  711 ;  16  Cox,  C.  C.  77— D. 

Trial  by  Jury— High  t-Poaching—"  Imprison- 
ment for  a  Term  exeeeding  Three  Months.  ,r|— 
By  the  Summary  Jurisdiction  Act,  1879,  a  17,  a 
person  when  charged  before  a  court  of  summary 


i 
i 


1069 


JUSTICE    OF    THE    PEACE, 


1070 


jurisdiction  with  an  offence  in  respect  of.  the 
commission  of  which  an  offender  is  liable  on 
summary  conviction  to  be  imprisoned  for  a  term 
exceeding  three  months,  may  claim  to  be  tried 
by  a  jury : — Held,  that  the  offence  of  night- 
poaching,  whereby  the  person  charged  is  liable 
under  9  Geo.  4,  c.  69,  to  imprisonment  for  a 
period  not  exceeding  three  months,  and  at  the 
expiration  of  that  period  to  a  farther  imprison- 
ment of  six  months  in  case  he  fail  to  find  sureties 
for  his  not  so  offending  again,  is  not  within  the 
act  so  as  to  entitle  the  person  charged  to  be  tried 
by  a  jury.  Williams  v.  Wynne,  57  L.  J.,  M.  C. 
30 ;  58  L.  T.  283  ;  62  J.  P.  343— D. 

leeogniianeea — Practice  in  Taking— Irregu- 
larity.]—-The  usual  practice  in  taking  the  re- 
cognizance of  a  person  convicted  at  quarter 
sessions  is,  that  the  person  so  convicted,  before 
he  is  allowed  to  leave  the  court,  enters  orally 
into  the  recognizance  before  the  officer  of  the 
court,  who  makes  a  minute  of  it ;  and  the  re- 
cognizance is  not  formally  drawn  up  till  after- 
wards. J.  had  been  convicted  in  May,  1885,  at 
Middlesex  Sessions,  and  was  sentenced,  inter 
alia,  to  enter  into  her  recognizance  in  a  certain 
amount  She  swore  that  after  sentence  she  went 
into  an  outer  office,  where  a  clerk  took  a  note  of 
her  entering  into  the  recognizance.  She,  on 
a  subsequent  day,  attended  at  the  clerk  of  the 
justices  of  the  peace's  room  at  the  sessions  house, 
and  the  clerk  in  attendance  wrote  something  in 
a  book.    That  was  all  that  was  done.    The  re- 

!  cognizance  was  subsequently  estreated,  and  an 
application  had  been  made  to  reduce  it  in  vain  : 

»  —Held,  that  no  good  cause  had  been  shown  to 
set  aside  the  recognizance  as  having  been  irregu- 
larly taken.     Jeffreys,  Ex  parte,  52  J.  P.  280 

Two  separata  Offences  charged.]  —  D.  was 
charged  contrary  to  bye-laws  with  emitting 
smoke  and  steam  from  a  tramway  engine,  and 
contended  that  these  were  two  separate  offences, 
and  the  summons  was  contrary  to  11  &  12  Vict, 
c.  43,  a.  1 : — Held,  that;  the  justices  were  right 
in  overruling  the  objection,  as  emitting  smoke 
vis  not  the  less  an  offence  because  steam  was 
nixed  with  it.  Daris  v.  Loach,  51  J.  P.  118 
-D. 

tee  Penalty  for  Two  Oflenoes — One  Conviction 
W.] — Where  justices  had  convicted  a  person  in 
one  penalty  for  two  alleged  offences,  and  the 
conviction  was  bad  as  to  one  of  them  : — Held, 
that  it  was  bad  altogether.  Bettesworth  v.1 
AUvsgham,  16  Q.  B.  D.  44  ;  34  W.  R.  296  ;  50 
J.  P.  55— D. 

Penalties  —  To  whom  payable  —  Borough 
Jutiees  ox  County  Treasurer.] — In  the  borough 
of  (X,  a  borough  having  a  separate  commission 
of  the  peace,  it  is  provided  by  a  local  act  that 
any  penalty  recovered  upon  the  information  or 
complaint  of  any  peace  officer  or  constable 
within  the  borough  is  to  be  paid  by  the  treasurer 
and  carried  to  the  borough  fund  or  to  the  police 
superannuation  fund,  as  the  corporation  may 
decide.  In  an  action  by  the  treasurer  of  the 
county  of  L.  to  enforce  the  provisions  of  11  &  12 
Vict.  c.  43  (Jervis's  Act),  6.  31  :— Held,  that  the 
effect  of  the  provisions  in  the  local  act  was,  so 
far  as  the  borough  of  O.  was  concerned,  to  re- 
peal the  provisions  of  the  general  act ;  and  that 


penalties  imposed  by  the  borough  justices  for 
offences  against  the  general  law  under  statutes 
containing  no  directions  as  to  the  application  of 
the  penalties  were  payable  to  the  treasurer  of 
the  borough.  Alison  v.  Charlesworth,  49  J.  P. 
294— D. 


Imprisonment  for   Non-payment — Hard 


Labour.] — The  5th  section  of  the  Summary 
Jurisdiction  Act,  1879,  authorises  the  infliction 
of  imprisonment  with  hard  labour  for  default  in 
payment  of  a  penalty  adjudged  to  be  paid  by  a 
summary  conviction  where  the  Act  on  which 
the  conviction  is  founded  authorizes  the  infliction 
of  imprisonment  with  hard  labour  as  a  punish- 
ment for  the  offence.  Beg.  v.  Tynemouth 
JJ.,  16  Q.  B.  D.  647  ;  55  L.  J.,  M.  C.  181  ; 
54  L.  T.  386  ;  50  J.  P.  454  ;  16  Cox,  C.  C. 
74— D. 

Whether  a  statute  which  authorizes  the  punish- 
ment of  an  offence  with  a  penalty,  or  in  the  dis- 
cretion of  the  court,  with  imprisonment  with  or 
without  hard  labour,  is  an  Act  which  authorizes 
the  punishment  of  imprisonment  with  hard 
labour  within  the  meaning  of  the  exceptions 
in  s.  5  of  the  Summary  Jurisdiction  Act,  1879, 
quaere.  Reg.  v.  Tynem-outh  JJ,  (16  Q.  B.  D. 
647)  not  followed.  Beg,  v.  TurnbuU,  16  Cox. 
C.  C.  110— D. 

Order  imposing  Fine — Criminal  Prisoner.] — 
A.  was  committed  to  prison  in  default  of  distress 
for  non-payment  of  a  fine  of  1/.,  adjudged  to  be 
paid  by  a  Court  of  Summary  Jurisdiction  on  an 
information  under  s.  31  of  the  Vaccination  Act, 
1867  : — Held,  that  the  order  imposing  the  fine 
was  a  conviction  as  distinguished  from  an  order 
in  its  technical  sense,  and  that  A.  was  properly 
treated  in  prison  as  a  criminal  prisoner.  Ken- 
nard  v.  Simmons,  50  L.  T.  28  ;  48  J.  P.  551 ; 
15  Cox,  C.  C.  397— Lindley,  L.  J. 


6.  Special  Cask  stated  by. 
a.  In  what  Oases. 

Under  Summary  Jurisdiction  Aot,  1879,  s.  88.] 

— A  court  of  summary  jurisdiction  has  no  power 
to  state  a  special  case  under  the  Summary  Juris- 
diction Act,  1879  (42  &  43  Vict.  c.  49),  s.  33, 
unless  an  application  has  been  made  to  the  court 
in  writing,  and  unless  a  copy  of  such  application 
has  been  left  with  the  clerk  of  the  court  within 
seven  days  from  the  date  of  the  proceeding  to 
be  questioned,  according  to  the  Summary  Juris- 
diction Rules,  1886,  r.  18.  South  Staffordshire 
Waterworks  Company  v.  Stone,  19  Q.  B.  D.  168 ; 
56  L.  J.,  M.  C.  122  ;  67  L.  T.  368  ;  36  W.  R.  76  ; 
51  J.  P.  662  ;  16  Cox,  C.  C.  300— D. 

When  justices  stated  a  case  under  20  &  21 
Vict.  c.  43,  they  may  be  taken  to  have  stated  it 
under  all  their  powers,  including  those  of  42  &  43 
Vict.  c.  49.  Rochdale  Bvilding  Society  v.  Rook- 
dale  (Mayor),  61  J.  P.  134—  D. 

Oral  Demand  —  Serviee   of  Hotioe   on 


Clerk.]  —  There  is  no  right  of  appeal  from 
justices  by  case  stated  under  the  Summary  Juris- 
diction Act,  1879,  8.  33,  unless  the  directions  of 
the  rules  made  under  that  section  with  regard  to 
the  mode  of  application  for  a  case  have  been 
observed.    Therefore  in  a  case  where  no  notice 


1071 


JUSTICE    OF   THE   PEACE. 


1072 


of  application  for  the  case  in  writing  had  been 
given  to  the  justices  making  the  order  appealed 
against,  though  a  notice  of  application  in  writing 
had  been  served  on  their  clerk  : — Held,  that 
there  was  no  power  to  state  a  case,  and  that  the 
appeal  mast  be  dismissed.  South  Staffordshire 
Waterworks  Company  v.  Stone  {19  Q.  B.  D.  168), 
approved  and  followed.  Lochhart  v.  St.  Albans 
(Mayor),  21  Q.  B.  D.  188  ;  67  L.  J.,  M.  C.  118  ; 
36  W.  R.  800 ;  52  J.  P.  420— C.  A. 

Becovery  of  Sewers  Kate.]— A  special  case 
under  s.  33  of  the  Summary  Jurisdiction  Act, 
1879,  may,  by  the  operation  of  s.  7  of  the 
Summary  Jurisdiction  Act,  1884,  and  notwith- 
standing s.  10  of  the  latter  act,  be  stated  by 
a  justice  sitting  to  hear  a  proceeding  for  the 
recovery  of  a  sewers  rate  under  s.  194  of  the  City 
of  London  Sewers  Act,  1848.  Reg.  v.  London 
{Mayor),  67  L.  T.  491  j  52  J.  P.  70— D. 

Bate  under  Public  Health  Act]— Justices, 
sitting  as  a  court  of  summary  jurisdiction  to 
hear  an  application  to  enforce  payment  of  rates 
under  s.  256  of  the  Public  Health  Act,  1875, 
have  power  to  state  a  case  in  respect  of  matters 
arising  out  of  such  application  under  s.  33  of 
the  Summary  Jurisdiction  Act,  1879.  Sandgatc 
Local  Board  v.  Pledge,  14  Q.  B.  D.  730  ;  52  L.  T. 
546  ;  33  W.  R.  565  ;  49  J.  P.  342— D. 

b.  Praotioe  on  Hearing. 

Setting  down  Special  Case— Practice  as  to.]— 

The  practice  as  to  setting  down  special  cases 
stated  by  justices  is  the  same  as  that  in  setting 
down  demurrers  under  Ord.  XXVII.  r.  6  ;  and 
if  the  special  case  is  not  set  down  for  argument 
within  ten  days  after  it  is  lodged,  it  cannot 
afterwards  be  set  down  or  appear  in  the  list  for 
argument.  South  Dublin  union  v.  Jones,  12 
L.  R.,  It.  358— Ex.  D. 

Counsel  appearing  for  Justices.]— The  justices 
have  no  right  to  be  heard  in  support  of  their 
decision,  upon  the  argument  of  a  case  stated  by 
them  for  the  opinion  of  the  court  under  the 
Summary  Jurisdiction  Act,  1879  (42  &  48  Vict. 
c.  49).  Smith  v.  Butler,  16  Q.  B.  D.  349 ;  34 
W.  R.  416— D. 

Power  to  reduce  Penalty.]— The  High  Court 
of  Justice  has  no  power  under  20  &  21  Vict, 
c.  43,  8.  6,  to  reduce  a  penalty  on  a  case  stated 
by  justices.  Evans  v.  Hemingway,  62  J.  P. 
184— D. 

Costs  on  Case  stated.]— See  Costs,  II.  6. 

Appeal  to  Court  of  Appeal.]— See  Appeal, 
II.  2,  c. 

7.   QUABTEE  SEB8IOK8— APPEAL  TO. 

Separate  Court  of  Quarter  Sessions.  ]— The 
parish  of  R,  was  subject  to  the  jurisdiction  of 
quarter  sessions  of  8.,  but  not  to  those  of  the 
county  in  which  it  was  situate.  In  1878  R., 
with  a  part  of  the  county  called  the  "added 
area,"  was  put  under  commissioners  for  paving, 
etc.,  by  a  local  act,  which  provided  that  if  a 
charter  were  granted  to  the  whole  district,  the 
quarter  sessions  of  S.  should  have  jurisdiction 
orer  the  "  added  area,"  and  that  the  "  added 


area  "  should  cease  to  be  liable  to  county  rates. 
In  1884  a  charter  was  granted,  which  incorpo- 
rated the  whole  district  as  the  borough  of  R.  :— 
Held,  that  the  borough  of  R.  was  a  borough 
having  a  separate  court  of  quarter  sessions,  and 
that  the  "  added  area  "  was  no  longer  liable  to 
county  rates.  A  separate  court  of  quarter 
sessions  in  s.  150  of  the  Municipal  Corporations 
Act,  1882,  means  a  court  separate  from  that  of 
the  county.  St.  La  wrenre  (  Overseers)  v.  Kent  //., 
61  J.  P.  262— D. 

Two  JTotiees  of  Appeal.] — Upon  the  hearing 
on  an  appeal  to  quarter  sessions  under  the 
Summary  Jurisdiction  Act,  1879,  it  appeared 
that  two  notices  of  appeal  had  been  given 
within  the  time  limited  by  the  Act,  and  the 
appellant  had  elected  to  proceed  upon  the 
second,  which  was  found  to  be  bad  for  want  of 
the  prescribed  recognizance  : — Held,  that  the 
first  notice  remained  good,  and  that  the  appellant 
was  entitled  to  proceed  upon  it  after  failing  upon 
the  second.  Reg.  v.  Wolverhampton  (Reeerder), 
35  W.  R.  650— D. 

Grounds  of  Appeal — Heglect  to  repair  High- 
way— Order  for  Expenses.] — A  complaint  having 
been  made  to  justices  that  certain  roads  alleged 
to  be  highways  under  the  jurisdiction  of  a  high- 
way board  were  out  of  repair,  a  summons  was 
issued  against  such  board.  Upon  the  hearing, 
a  land  surveyor  was  appointed  to  view  and 
report  on  the  state  of  the  roads  in  question, 
The  report  was  duly  made,  and  the  justices, 
upon  the  evidence  and  admissions  before  them, 
ordered  the  highway  board  to  do  the  repairs.  , 
The  highway  board  neglected  to  obey  this 
order;  and  the  justices  appointed  such  land 
surveyor  to  put  the  highway  in  repair,  and 
ordered  the  board  to  pay  the  expenses.  At 
several  hearings  before  the  justices,  the  highway 
board  never  denied  that  they  were  liable  to 
repair  the  roads  in  question.  The  board  appealed 
to  quarter  sessions  against  the  order  upon  them 
for  the  expenses  of  repairing  the  roads.  The 
following  were  the  grounds  of  appeal : — "1.  That 
the  said  justices  had  no  jurisdiction  to  make  the 
said  order.  2.  That  the  said  order  is  contrary 
to  law.  3.  That  the  said  order  is  contrary  to 
the  evidence.  4.  That  the  justices  wrongfully 
admitted  evidence  of  witnesses  other  than  the 
person  appointed  by  them  under  a.  18  of  25 
&  26  Vict.  o.  61.  5.  That  at  the  time  of  the 
making  of  the  said  order  the  said  highways  had 
been  put  into  a  state  of  complete  and  effectual 
repair.  6.  That  the  sum  mentioned  in  the  said 
order  to  be  spent  in  putting  the  said  roads  into 
repair  is  excessive.  7.  That  the  said  highway 
board  was  and  is  not  liable  to  repair  the  said 
highways,  and  that  the  liability  to  repair  the 
said  highways  was  at  all  the  hearings  before  the 
said  justices  recited  in  the  said  order,  and  also  at 
the  time  of  the  hearing  when  the  said  order  was 
made,  and  at  the  time  of  the  making  thereof, 
disputed."  Upon  the  appeal  it  was  contended 
on  behalf  of  the  board  that  the  roads  in  question 
were  not  highways,  and  the  order  was  quashed 
on  that  ground  : — Held,  that  the  highway  board 
were  entitled  to  appeal  to  quarter  sessions 
against  the  order,  but  were  not  entitled  on  the 
appeal  to  raise  the  question  whether  the  roads 
were  highways — (1)  because  they  were  estopped 
by  their  admissions  before  the  justices  ;  (2)  be- 
cause their  grounds  of  appeal  gave  no  notice 


1078 


LACHES— LANDLORD    AND    TENANT. 


1074 


that  the  point  would  be  taken  ;  and  (3)  because 
the  question  was  not  open  to  them  when  the 
order  appealed  against  was  made,  lllingworth 
?.  Bulmer  East  Highway  Board,  52  L.  J.,  Q.  B. 
680 ;  48  J.  P.  37— D. 

Held,  also,  that  the  quarter  sessions,  by  decid- 
ing the  question,  did  not  thereby  necessarily 
decide  that  it  was  open  to  the  highway  board  to 
raise  it    lb. 

Appeal  in  Licensing  Hatters.]  —  See  Garrett 
t.  Middlesex  JJ.,  ante,  col.  1052,  and  Reg.  v. 
Neweastle-vpon-Tyne  JJ.,  ante,  col.  1053. 

Appeal  against  Valuation  Lift.  J — See  Poor- 
Law. 

Action  for  Costs— Taxation  by  Clerk  of  Peace 
—Abandonment  of  Order.] — An  action  lies  to 
recover  costs  which  have  been  taxed  by  the 
clerk  of  the  peace,  and  which  arise  out  of  an 
order  made  by  justices  in  the  case  of  a  pauper 
lunatic  under  16  &  17  Vict.  c.  97,  s.  97,  and 
subsequently  abandoned  after  notice  of  appeal 
to  quarter  sessions  has  been  given.  Dewsiury 
Union  v.  West  Ham  Union,  56  L.  J.,  M.  C.  89 ; 
52J.P.  151— D. 


LACHES. 

Effect  of,  on  legal  Bights.]— Where  a  plain- 
tiff comes  to  the  court  to  enforce  a  legal  right, 
his  delay  in  taking  proceedings  is  no  defence,  if 
it  has  not  continued  long  enough  to  bar  his 
legal  right.  The  case  is  different  where  the 
plaintiff  endeayours  to  enforce  an  equitable 
right.  Mad  (fever,  In  re,  Three  Towns  Banking 
Company  v.  Madder  er,  27  Ch.  D.  523  ;  53  L.  J., 
Ch.998;  52L.T.  35;  33  W.  B.  286— C.  A. 

ttset  of,  on  Bight  to  sue  Executor  for  De- 
vastavit] —  Mere  laches  in  abstaining  from 
calling  upon  the  executors  to  realise  for  the 
purpose  of  paying  his  debt  will  not  deprive  a 
creditor  of  his  right  to  sue  the  executors  for 
devastavit,  unless  there  has  been  such  a  course 
of  conduct,  or  express  authority  on  his  part, 
that  the  executors  hare  been  thereby  misled 
into  parting  with  the  assets,  available  to  answer 
his  claim.  Birch ,  In  re,  Roe  v.  Birch,  27  Ch.  D. 
«22 ;  54  L.  J.f  Cb.  119  ;  51  L.  T.  777  ;  33  W.  R. 
72-Chitty,  J. 

8tt  Waiver  and  Acquiescence. 


LADING  (BILL  OF). 

See  SHIPPING. 


LANCASTER. 

Dachy  of— Bight  to  exhibit  Information.  J— 
An  information  cannot  be  exhibited  in  the  High 
Court  of  Justice  by  the  Attorney-General  of  the 


Duchy  of  Lancaster  even  in  respect  of  matters 
concerning  the  duchy.  Attorney- General 
(Duchy  of  Lancaster)  v.  Devonshire  (Duke\ 
14  Q.  B.  D.  195 ;  54  L.  J.,  Q.  B.  271  ;  33  W.  R. 
367— D. 

Palatine  Court.]— See  Coubt. 


LAND. 


Drainage.]— &*  Drainage. 

Bale  of.]— See  Vendor  and  Purchaser. 

Tax.]— &*?  Revenue. 


LANDLORD  AND  TENANT. 

I.  Agreements  fob  Leases,  1075. 
II.  Description  of  Tenancy,  1076. 

III.  Leases. 

1.  Parties,  1076. 

2.  Construction — Reservations,  1077. 

3.  Covenants. 

a.  Joint  or  Several,  1078. 

b.  Who  entitled  to  Benefit  of,  1079. 

c.  Running  with  the  Land,  1079. 

d.  To  Repair,  1080. 

e .  Fixtures,  1082. 

/.  Quiet  Enjoyment,  1083. 
g.  Not  to  Assign  or  Underlet,  1084. 
h.  As  to  Rates  and  Taxes,  1085. 
i.  Trade  or  Business,  1086. 
j.  For  Renewal  of  Lease,  1088. 
k.  Relating  to  Husbandry,  1089. 
I.  What  Covenants  Implied,  1090. 
m.  In  other  Cases,  1091. 

4.  Disclaimer     on     Bankruptcy, — See 

Bankruptcy,  VIII.  1,  a. 

IV  Rent 

1.  Rights  and  Liabilities,  1092. 

2.  Distress. 

a.  In  General,  1095. 

b.  What  Goods  may  be  Seized,  1096. 

V.  Termination  of  Tenancy,  1098. 

VI.  Forfeiture. 

1.  In  what  Cases,  1102. 

2.  Relief  against,  1102. 

VII.  Assignment  of  Term,  1104. 
VIIL  Agricultural  Holdings  Act,  1107. 
IX.  Furnished  Houses,  1109. 
X.  Lodging  Houses,  1110. 

XI.  Actions  for  Recovery  of  Land. 

1.  In  County  Court,  1110. 

2.  In  other  Cases.— See  Practice. 


1075 


LANDLORD    AND    TENANT. 


1076 


I.    AGBEEsTEHTS  FOB  LEASES. 

Restrictive  Covenant  —  Representations 
amounting  to  Collateral  Agreement] — S.  was 
the  owner  of  various  houses  in  Cromwell  Gardens, 
purchased  from  the  commissioners  of  the 
Exhibition  of  1851,  in  the  conveyance  of  each 
of  which  was  a  covenant  that  he  would  not 
carry  on  or  permit  to  be  carried  on  any  trade  or 
business,  but  would  keep  the  house  as  a  private 
dwelling-house.  8.  let  one  of  the  houses  to  M. ; 
S.'s  solicitor  sent  to  M.  a  draft  lease  with  a  letter 
ending  : — "  I  may  perhaps  add  that  the  draft  is 
the  form  used  for  all  the  houses  on  S.'s  estates." 
The  draft  contained  a  restrictive  covenant  of 
the  same  nature  as  that  in  the  conveyance  to  S., 
and  against  it  was  a  note  : — "There  is  a  covenant 
to  this  effect  in  the  conveyance  to  S.M  Six  years 
afterwards,  M.  negotiated  with  S.  for  a  long 
lease  of  the  same  house  at  a  high  premium,  and 
a  draft  agreement  was  sent,  which  contained  a 
provision  that  the  lease  should  contain  Buch 
covenants  on  the  part  of  the  lessee  as  were 
usually  inserted  by  the  lessor  in  leases  of  his  other 
houses  in  Cromwell  Gardens.  M.'s  solicitor 
thereupon  wrote  for  the  form  of  lease  used 
by  S.,  and  a  copy  of  a  lease  containing  the 
restrictive  covenant  was  sent,  and  a  lease  was 
granted  to  M.  containing  a  similar  covenant : — 
Held,  that  the  representations,  made  by  S.  to  a 
person  negotiating  for  a  lease,  that  this  was  the 
form  of  lease  used  by  S.,  amounted  not  merely 
to  a  statement  that  this  was  the  then  form  of 
lease,  but  to  a  collateral  contract  with  the 
intending  lessee,  that  the  neighbouring  property 
of  S.  should  continue  to  be  managed  on  that 
footing  : — Held,  therefore,  that  M.  was  entitled 
to  restrain  S.  from  authorising  any  of  the 
adjoining  houses  to  be  used  for  the  purpose  of 
trade.  Martin  v.  Spieer,  84  Ch.  D.  1  ;  56  L.  J., 
Ch.  398  ;  55  L.  T.  821— C.  A.  Affirmed  on 
different  grounds,  14  App.  Cas.  12  ;  58  L.  J., 
Ch.  309  ;  60  L.  T.  546  ;  37  W.  R.  689 ;  63  J.  P. 
516— H.  L.  (E.). 

Agreement  for  Purchase  of  Lease.] — See 
Vendor  and  Purchaser. 

Agreement  to  enter  into  Agreement  — 
Damages.] — An  agreement  was  made  between 
W.  and  F.,  that  W.  would  enter  into  an  agree- 
ment with  0.  for  a  lease  at  a  certain  rent  for 
such  term  and  subject  to  such  covenants  as  O. 
should  approve,  and  would  accept  such  lease 
and  execute  a  counterpart : — Held,  that  F.  was 
entitled  to  recover  damages  from  W.  for  breach 
of  the  agreement  between  them.  Foster  v. 
Wheeler,  38  Ch.  D.  130 ;  67  L.  J.,  Ch.  871 :  59 
L.  T.  15  ;  37  W.  R.  40— C.  A. 

Agreement  that  Underlease  shall  contain  the 
same  Covenants  as  Original  Lease.] — The  plain- 
tiff, who  was  lessee  of  part  of  the  property  of  a 
hospital,  agreed  with  the  defendant  to  grant  him 
an  underlease,  "  to  contain  all  usual  covenants 
(including  a  covenant  not  to  assign  or  underlet 
without  the  consent  of  the  plaintiff,  such  consent 
not  to  be  withheld  if  the  proposed  assignee  or 
tenant  be  respectable  and  responsible),  together 
with  such  other  covenants,  clauses,  and  provisoes 
as  are  contained  in  the  lease  under  wnich  the 
premises  are  held."  The  original  lease  contained 
(1)  a  covenant  that  if  any  dispute  relating  to 
the  demised  premises  should  arise  between  the 
lessee  and  any  other  tenant  of  the  hospital,  it 


should  be  referred  to  the  arbitration  of  the 
hospital ;  (2)  that  the  lessee,  his  executors, 
administrators,  or  assigns,  would  not  assign  or 
sublet  without  the  licence  of  the  hospital ;  (3) 
that  all  demises  aud  assignments  of  the  demised 
premises  should  be  prepared  by  the  solicitors  of 
the  hospital : — Held,  that  the  covenants  in  the 
original  lease  were  not  to  betaken  as  models  and 
inserted  in  the  underlease  with  the  names  of  the 
underlessor  and  underlessee  substituted  for  the 
names  of  the  original  lessors  and  lessee  respec- 
tively, but  that  the  plaintiff  was  entitled  to  have 
them  inserted  without  modification,  so  as  to  bind 
the  underlessee  to  refer  disputes  with  tenants  of 
the  hospital  to  the  arbitration  of  the  hospital, 
not  to  assign  or  underlet  without  the  consent  of 
the  hospital,  and  to  have  his  demises  and  assign- 
ments prepared  by  the  solicitors  of  the  hospital. 
Williamson  v.  Williamson  (9  L.  R.,  Ch.  729) 
distinguished.  Haywood  v.  Silber,  30  Ch.  D. 
404  ;  54  L.  T.  108  ;  34  W.  R.  114— C.  A. 

Forfeiture— Application  of  s.  14  of  the  Con- 
veyancing  Aet,  18*1.] — See  cases  post,  coL  1103. 

Specific  Performance  ol] — See  Specific 
Performance. 

Contents  of  Memorandum— Statute  of  Frauds.] 
— See  Contract,  I.  6. 

II.    DESCRIPTION   OF    TEHAJTCY. 

In  Common— House— Repairs — Contributioi.] 
— One  tenant  in  common  of  a  house  who  expends 
money  on  ordinary  repairs,  not  being  such  as 
are  necessary  to  prevent  the  house  from  going  to 
ruin,  has  no  right  of  action  against  his  co-tenant 
for  contribution.  Leigh  v.  Diekezon,  16  Q.  B.  D. 
60  ;  54  L.  J.,  Q.  B.  18  ;  52  L.  T.  790 ;  S3  W.  B. 
538— C.  A. 


Action  for  Use  and  Occupation.]— Where 


one  tenant  in  common  has  by  lease  demised  bis 
interest  to  his  co-tenant  in  common,  if  the  tenant 
in  common  who  was  lessee  continues  in  occupa- 
tion as  tenant  at  sufferance  after  the  expiration 
of  the  lease,  he  will  be  liable  in  an  action  for 
use  and  occupation  at  the  suit  of  his  co-tenant 
in  common  who  was  lessor.    lb. 

For  Tears— Waste.]— A  tenant  for  years  is 
liable  for  permissive  waste.  Davie*  v.  DatUt, 
38  Ch.  D.  499  ;  67  L.  J.,  Ch.  1093 ;  58  L.  T. 
514  ;  36  W.  R.  399— Kekewich,  J. 

Week  to  Week.]— A  weekly  tenancy  is  a  re- 
letting of  the  premises  by  the  landlord  at  the 
beginning  of  each  successive  week.  Sandfordi. 
Clarke,  21  Q.  B.  D.  398  ;  57  L.  J.,  Q.  B.  507 ;  59 
L.  T.  226  ;  37  W.  R.  28  ;  52  J.  P.  773— D. 

At  WilL] — Where  a  tenant  is  in  possession  of 
land  under  an  agreement  for  a  lease  for  twenty- 
one  years  but  has  paid  no  rent,  he  is  a  tenant  at 
will  and  the  landlord  may  determine  the  tenancy 
by  giving  notice  to  quit.  Coattworth  v.  John- 
stm,  55  L.  J„  Q.  B.  220 ;  54  L.  T.  620— C.  A. 

III.    LEASES. 
1.  PARTIES. 

Infant — Surrender  of  Lease.] — The  provisions 
of  the  act  11  Geo.  4  &  1  Will.  4,  c  66,  for  the 


f 


1077 


LANDLORD    AND    TENANT— Leases. 


1078 


surrender  of  a  lease  to  which  an  infant  is  en- 
titled, apply  to  a  lease  to  which  an  in  cant  is 
only  beneficially  entitled,  the  legal  estate  being 
tested  in  a  trustee  for  him.  Griffiths,  In  re,  29 
Ch.  D.  248 ;  54  L.  J.,  Ch.  742  ;  53  L.  T.  262  ;  33 
W.  R.  728— Pearson,  J. 

By  Mortgagor. ]--See  Mobtgage. 

Grant    under     Bottled    Estates    Act]— See 
Settlement. 


2.    CONSTRUCTION— RESERVATIONS. 

Btservation  of  Shooting  Rights— Regrant.]— 

The  defendant  demised  to  the  plaintiff  a  large 
landed  estate  in  Ireland  ("excepting  and  always 
reserving  out  of  this  demise  to  the  lessor, 
timber  and  other  trees,  mines,  minerals,  anil 
quarries,  "and  also  reserving  to  the  lessor,  his 
beirs  and  assigns,  and  his  and  their  servants, 
agents,  and  workmen,  liberty  of  ingress,"  &c,  to 
cat,  work,  and  take  away  the  trees  and  minerals ; 
a  and  also  by  way  of  grant,  and  not  of  reserva- 
tion, the  exclusive  right  of  hunting,  coursing, 
and  shooting  upon  and  over  the  said  demised 
premises,  or  otherwise  to  destroy  the  game  and 
wildfowl  thereon  being"),  to  hold  the  said 
demised  premises  with  the  appurtenances  (except 
as  before  excepted)  to  the  lessee  for  a  term  of 
rears  at  an  annual  rent : — Held,  that  the  right 
of  shooting  was  re-granted  to  the  lessor,  and 
that  the  words  "and  also  by  way  of  grant,  and 
not  of  reservation,"  were  not  a  resumption  of 
the  parcels  of  the  lease  so  as  to  pass  the  right  of 
■hooting  to  the  lessee.  Houstoun  v.  Sligo  (Mar- 
f»f«),  55  L.  T.  614— H.  L.  (E.). 

lesmation  of  Mines  and  Minerals — Pro-his- 
toric Chattel  found  beneath  the  Surface.] — In 
hud  demised  to  a  gas  company  for  ninety-nine 
jean,  with  a  reservation  to  the  lessor  of  all  mines 
and  minerals,  and  covenants  under  which  the 
lessees  were  authorised,  under  the  inspection  of 
the  lessor's  surveyor  and  according  to  plans  to  be 
previously  approved,  to  erect  a  gasholder  and 
other  buildings,  a  pre-historic  boat,  embedded  in 
toe  soil  six  feet  below  the  surface,  was  discovered 
by  the  leasees  in  the  course  of  excavating  for  the 
foundations  of  the  gasworks: — Held,  that  the 
boat,  whether  regarded  as  a  mineral,  or  as  part  of 
the  soil  in  which  it  was  embedded  when  dis- 
covered, or  as  a  chattel,  did  not  pass  to  the  lessees 
by  the  demise,  but  was  the  property  of  the  lessor, 
though  he  was  ignorant  of  its  existence  at  the 
time  of  granting  the  lease.  Elwes  v.  Brigg  Gas 
Company,  33  Ch.  D.  562 ;  55  L.  J.,  Ch.  734  ; 
55  L.  T.  831  ;  36  W.  R.  192— Chitty,  J. 

Custom  of  Country— Whether  Reservation 

includes  Flints.]  —  A  farm  was  let  under  a 
written  agreement,  reserving  to  the  landlord 
•*  all  mines  and  minerals,  sand,  quarries  of  stone, 
brick  earth  and  gravel  pits."  A  local  custom 
(which,  it  was  suggested,  had  grown  up  within 
the  last  thirty  or  forty  years)  allowed  tenants  of 
such  farms,  let  with  a  similar  reservation,  to 
take  away  the  flints  that  were  turned  up  in  the 
ordinary  course  of  good  husbandry,  and  to  sell 
them  for  their  own  benefit.  If  the  flints  were 
not  turned  up  and  removed  such  farms  could 
not  be   properly  cultivated: — Held,  that   the 


custom  was  reasonable  and  valid  ;  and  when 
read  into  the  written  agreement  was  not  incon- 
sistent with  the  reservation,  even  assuming  (but 
without  deciding)  that  the  reservation  of  "mines 
and  minerals  "  included  such  flints.  TueJter  v. 
Linger,  8  App.  Cas.  508 ;  52  L.  J.,  Ch.  941  ;  49 
L.  T.  373  ;  32  W.  R.  40  ;  48  J.  P.  4— H.  L.  (E.). 


Building  Lease — Right  to  remove  Soil.] 


— The  holder  of  a  building  lease  where  minerals 
are  reserved  has  a  right  to  dig  foundations  for 
buildings  about  to  be  erected,  and  dispose  of  the 
materials  dug  out,  but  not  to  do  so  in  order  to 
improve  the  surface  as  a  building  site.  Robinson 
v.  Milne,  53  L.  J.,  Ch.  1070-North,  J. 

44  Heirs  or  Assigns  "—Easement— Regrant  to 
Lessee — Surrender— Merger.  ]— In  1820  A.,  B., 
and  C,  who  were  tenants  in  common  in  fee, 
demised  a  strip  of  land  intersecting  their  estate 
to  T.,  for  a  term  of  1000  years  for  the  purpose 
of  making  a  canal.  The  lease  contained  a  pro- 
viso that  nothing  therein  contained  should 
prevent  the  lessors,  their  heirs  and  assigns,  from 
using  all  or  any  of  the  demised  land,  or  from 
granting  any  way-leaves,  or  roads  over  or  across 
the  same  in  like  manner  as  they  could  or  might 
have  done  if  the  lease  had  not  been  granted,  but 
so  ss  not  to  injure  the  canal  or  the  navigation 
thereof,  or  the  towing-path,  or  any  works  for  the 
convenience  of  the  lessee.  In  1838  the  estate 
was  partitioned  between  A.,  B.,  and  C,  by  deed, 
the  reversion  of  part  of  the  canal  being  conveyed 
to  B.,  and  the  lands  abutting  on  it  to  A.  and  C. 
respectively.  In  1839  B.  conveyed  his  reversion 
in  that  part  of  the  canal  to  the  lessee.  Upon  a 
claim  by  A.  to  exercise  over  that  part  of  the 
canal  the  rights  reserved  by  the  lease  of  1820  : — 
Held,  that  the  right  of  way  across  the  canal  was 
reserved  to  the  lessors  and  their  assigns  as 
owners  of  the  reversion  and  not  as  owners  of 
the  adjoining  lands,  and  consequently  that  the 
conveyance  by  B.  in  1839,  by  causing  the  term 
to  become  merged  in  the  reversion,  extinguished 
the  rights  of  A.  and  C.  over  that  part  of  the 
canal  included  in  that  conveyance.  Dynexor 
(Lord)  v.  Tennant,  13  App.  Cas.  279  ;  57  L.  J., 
Ch.  1078  ;  59  L.  T.  5  ;  37  W.  R.  193— H.  L.  (E.). 

Grant  of  Easement  —  Appurtenances.] — See 
Thomas  v.  Owen,  ante,  col.  672. 

Reservation  of  Right  to  obstruct  Lights.]— 
See  Mitchell  v.  Cantrill,  ante,  col.  677. 


3.  COVENANTS. 

a.  Joint  or  Several. 

Demise  to  Two  as  Tenants  in  Common.] — 
Premises  were  demised  to  G.  and  A.,  "  their 
executors,  administrators,  and  assigns,"  haben- 
dum to  "the  said  G.  and  A.,  their  executors, 
administrators,  and  assigns,  as  tenants  in  common 
and  not  as  joint  tenants,"  at  a  single  yearly 
rent ;  and  G.  and  A.  covenanted  "  for  them- 
selves, their  executors,  administrators,  and 
assigns  that  they  the  said  G.  and  A.,  or  some  or 
one  of  them,  their  executors,  administrators,  or 
assigns,"  would  pay  the  said  yearly  rent  and 
keep  the  premises  in  repair.  G.  having  died 
during  the  term,  the  lessor  sued  A.  and  the 


1079 


LANDLORD    AND    TENANT— Leases. 


1080 


executors  of  6.  for  breaches  of  covenant  occur- 
ring after  G.'s  death  : — Held,  that  the  covenants 
were  in  form  joint  and  not  several,  and  that  G.'s 
executors  were  not  liable.  Whyte  v.  Tyndall, 
13  App.  Cas.  263  ;  57  L.  J.,  P.  C.  114  ;  58  L.  T. 
741 ;  52  J.  P.  675— H.  L.  (Ir.) 


b.  Who  entitled  to  Benefit  ol 

Lease  by  Mortgagor  subsequent  to  Mortgage 
— Hotice  to  pay  Sent  to  Mortgagee.]— A  mort- 
gagor in  possession  let  the  mortgaged  property 
without  the  concurrence  of  the  mortgagees.  The 
lease  was  one  authorised  by  s.  18  of  the  Convey- 
ancing Act,  1881.  The  lessee  then  advanced 
certain  moneys  to  the  mortgagor  upon  the  terms 
that  the  lessee  should  retain  the  rent  as  it  be- 
came due  until  the  monies  were  repaid.  Subse- 
quently the  mortgagees  gave  notice  to  the  lessee 
informing  him  of  the  mortgage,  and  requiring 
him  to  pay  them  the  rent  thereafter  to  become 
due,  and  not  to  pay  it  to  the  mortgagor.  The 
lessee  having  refused  to  comply  with  the  notice, 
the  mortgagees  brought  an  action  to  recover 
possession  under  a  condition  of  re-entry  upon 
non-payment  of  rent  contained  in  the  lease  : — 
Held,  that,  by  the  combined  effect  of  ss.  10  and 
18  of  the  Conveyancing  Act,  1881,  the  mort- 
gagees, after  giving  the  above  notice  to  the 
lessee,  were  entitled  as  reversioners  to  enforce 
the  covenants  and  provisions  in  the  lease,  and 
were  therefore  entitled  to  recover  possession  of 
the  property  under  the  condition  of  re-entry  ; 
and,  further,  that  the  agreement  between  the 
mortgagor  and  lessee  as  to  the  retention  of  the 
rent  was  not  binding  upon  the  mortgagees. 
Municipal  Permanent  Building  Society  v.  Smith, 
22  Q.  B.  D.  70 ;  58  L.  J.,  Q.  B.  61 ;  37  W.  R.  42 
— C.A. 


o.  Banning  with  the  Land. 

Covenant  to  pay  Collateral  Sum  of  Money.] — 
By  an  underlease,  dated  in  1869,  A.  demised  the 
Y.  premises,  comprised  in  two  original  leases, 
dated  in  1848  and  1863,  save  and  except  such 
parts  of  the  premises  (Z.)  comprised  in  the 
lease  of  1848  as  were  comprised  in  an  under- 
lease, dated  in  1867,  to  B.  for  the  residues  of 
the  original  terms  except  the  last  day  of  each. 
The  underlease  to  B.,  of  1869,  contained  a  cove- 
nant by  B.  for  himself,  his  assigns,  &c,  that  he 
would  during  the  terms  granted,  pay  all  future 
rates,  taxes,  &c,  payable  in  respect  of  the  Y. 
premises,  and  also  would,  during  the  said  term, 
pay  all  such  sums  (not  exceeding  1002.  in  any 
one  year)  as  should  for  the  time  being  be  pay- 
able by  the  lessor,  his  assigns,  &c.,  on  account 
of  the  like  rates,  taxes,  &c,  in  respect  of  the  Z. 
premises.  The  Y.  premises  were  subsequently 
assigned  to  C.  for  the  residue  of  the  terms : — 
Held,  that  the  covenant,  as  to  taxes,  &c,  in  re- 
spect of  the  Z.  premises,  was  a  covenant  to  pay 
a  collateral  sum  of  money,  and  did  not  run  with 
the  land,  and,  therefore,  that  C.  was  not  liable. 
Gower  v.  Postmaster- General,  57  L.  T.  527 — 
Kay,  J. 

Covenant  to  Eepair  and  Maintain  Bead.] — 
The  doctrine  in  Talk  v.  Moxhay  (2  Ph.  774)  is 
limited  to  restrictive  stipulations,  and  will  not 
be  extended  so  as  to  bind  in  equity  a  purchaser 


taking  with  notice  of  a  covenant  to  expend 
money  on  repairs  or  otherwise  which  does  not 
run  with  the  land  at  law.  Semble,  that  the 
burden  of  a  covenant  (not  involving  a  grant) 
never  runs  with  the  land  at  law,  except  as  be- 
tween Landlord  and  tenant.  Cooke  v.  ChUeett 
(3  Ch.  D.  694)  overruled  on  this  point  Mor* 
land  v.  Cook  (6  L.  B.,  Eq.  252)  explained. 
Holmes  v.  Buckley  (l  Eq.  C.  Ab.  27)  discussed. 
Austerberry  v.  Old-ham  Corporation,  29  Ch.  D. 
750 ;  53  L.  T.  543  ;  33  W.  R.  807;  49  J.  P.  532- 
C.  A. 

A.  by  deed  conveyed  for  value  to  trustees  in 
fee  a  piece  of  land  as  part  of  the  site  of  a  road 
intended  to  be  made  and  maintained  by  the 
trustees  under  the  provisions  of  a  contempora- 
neous 1  rust  deed  (being  a  deed  of  settlement  for 
the  benefit  of  a  joint  stock  company  established 
to  raise  the  necessary  capital  for  making  the 
road)  ;  and  in  the  conveyance  the  trustees  cove- 
nanted with  A.,  his  heirs  and  assigns,  that  they, 
the  trustees,  their  heirs  and  assigns,  would  make 
the  road  and  at  all  times  keep  it  in  repair,  and 
allow  the  use  of  it  by  the  public  subject  to  tolls. 
The  piece  of  land  so  conveyed  was  bounded  on 
both  sides  by  other  lands  belonging  to  A.  The 
trustees  duly  made  the  road,  which  afforded  the 
necessary  access  to  A.'s  adjoining  lands.  A 
afterwards  sold  his  adjoining  lands  to  the  plain- 
tiff, and  the  trustees  sold  the  road  to  the  defen- 
dants, both  parties  taking  with  notice  of  the 
covenant  to  repair : — Held,  that  the  plaintiff 
could  not  enforce  the  covenant  against  the 
defendants,    lb. 

Consideration  of  the*  circumstances  under 
which  a  covenant  will  be  held  to  touch  or  con- 
cern the  land  of  the  covenantee  so  that  the 
benefit  may  run  with  the  land.     lb. 

Offensive  Trade.] — See  Hall  v.  JBwin,  post, 
coL1088. 


d.  To  Bepalr. 

To  leave  Premises  in  Repair — Damages—Be- 
pairs  no  longer  necessary  to  command  Bent]— 
In  an  action  against  the  assignee  of  a  lease  or  a 
house  for  breach  of  covenant  to  leave  the  pre- 
mises in  repair  at  the  end  of  the  term,  it  ap- 
peared that  owing  to  changes  in  the  surrounding 
property  the  house  had  so  far  altered  in  value 
since  the  commencement  of  the  lease  that  it 
would  be  as  valuable  for  letting  purposes  if  some 
of  the  repairs  required  by  the  covenant  according 
to  its  strict  meaning  were  either  omitted  or  exe- 
cuted at  a  cheaper  rate  than  was  usual  nnder 
such  a  covenant : — Held,  that  the  facts  above 
mentioned  were  no  ground  for  limiting  the  lia- 
bility of  the  defendant  under  the  covenant,  and 
that  the  measure  of  damages  for  a  breach  of  it 
was  the  amount  required  to  put  the  premises 
into  such  repair  as  was  originally  contemplated 
by  the  covenant.  Morgan  v.  Hardy,  85  W.  B. 
588— C.  A.  Affirming  17  Q.  B.  D.  770-Den- 
man,  J. 

Damages  —  Lessor  effecting  Structural 


Alterations.] — A  lessor  is  not  deprived  of  any 
part  of  the  ordinary  damage  recoverable  on  a 
breach  of  covenant  by  the  lessee  to  deliver  op 
the  demised  premises  in  good  repair,  by  reason 
of  the  lessor's  effecting  structural  alterations  in 
the  premises  after  the  determination  of  the  lease. 


1061 


LANDLORD    AND    TENANT— Leases. 


1082 


Indtmick  v.  Leech,  1  C.  &  £.  412 — Lopes,  J. 
Affirmed  in  C.  A. 

—  liability  of  Tenant  after  Bankruptcy.] — 
A  tenant  in  possession  of  premises  under  an  agree- 
ment for  a  lease  for  twenty-one  years,  from 
Michaelmas,  1861  (the  lease  to  contain  a  cove- 
nant to  repair  and  leave  in  repair)  liquidated  by 
•nangement  in  1872,  and  got  his  discharge  in 
1880.  The  trustee  took  no  steps  with  regard  to 
the  premises,  which  the  tenant  continued  to 
occupy  till  Michaelmas,  1882  :— Held,  that  the 
tenant  was  bound  to  leave  the  premises  in  the 
state  of  repair  required  by  the  agreement. 
Pettford  v.  Abbott,  1  C.  &  B.  225— Lopes,  J. 

To  leave  Premises  in  Tenantable  Repair — 
DvaUiag-hoiue.] — Under  an  agreement  for  a 
lease  for  five  years  of  a  dwelling-house,  the 
tenant  was  to  leave  the  house  in  tenantable  re- 
pair. In  an  action  by  the  landlord  at  the  end 
of  the  tenancy  (which  continued  for  seventeen 
fears)  for  damages,  upon  the  footing  that  the 
tenant  was  liable  to  paper  and  paint,  and  leave 
the  house  in  the  same  condition  as  when  he  took 
it :— Held,  that  the  landlord  was  not  entitled  to 
damages  on  that  footing,  but  that  he  was  en- 
titled to  compensation  for  waste,  the  tenant 
being  liable  to  paint  sufficiently  to  preserve  the 
woodwork,  but  not  to  do  papering  or  decorative 
painting.  Crawford  v.  Kewton,  36  W.  R.  54— 
C.A. 

Waiver— Acceptance  of  Sent]  —A  notice,  re- 
quiring a  tenant  to  remedy  a  breach  of  covenant 
bv  repairing  premises  within  three  months,  ex- 
pired on  February  1st,  1884.  No  repairs  were 
then  done,  and  on  February  2nd,  the  rent  due  at 
Christmas,  1883,  was  accepted  :— Held,  that  the 
acceptance  of  the  rent  was  no  waiver  of  the 
breach  of  covenant.  Cronin  v.  Rogers,  1  C.  &  K. 
348— Denman,  J. 

letting  of  Farm  and  Mill— Liability  to  repair 
■HI- wheel] — An  agreement  for  the  letting  of  a 
farm  and  mill  provided  that  the  tenant  "  should 
keep  and  leave  the  messuages  and  buildings  in 
good  and  substantial  repair,"  &c.  In  an  action 
by  the  landlord  to  recover  damages  for  non- 
repair of  the  mill-wheel : — Held,  that  the  tenant 
was  liable.  Openshaw  v.  Evans,  50  L.  T.  156 
-D. 

Covenant  to  Repair  by  Landlord— Heoeaaity 

to  letiee.] — In  an  action  by  a  tenant  againBt 
a  landlord  for  breach  of  an  agreement  to  keep 
drains  in  repair,  the  jury  found  that  neither 
party  knew  of  the  defective  condition  of  the 
drains  before  the  damage  occurred,  and  that  the 
plaintiff  had  not,  and  the  defendant  had,  the 
means  of  knowing  : — Held,  that  the  defendant 
was  not  liable.  Hug  all  v.  McKean,  53  L.  T. 
« ;  33  W.  R.  588— C.  A.  Affirming  1  C.  &  E. 
391-Wills,  J. 

let  to  commit  Waste— Damages— Action  by 
Itvertionor  against  Tenant.] — A  covenant  by  a 
tenant  not  to  commit  waste  on  the  demised 
property  is  not,  with  regard  to  the  measure  of 
damages  for  the  breach  of  it,  the  same  thing  as  a 
covenant  to  deliver  up  the  property  at  the  end 
of  the  term  in  the  same  state  as  that  in  which 
the  tenant  received  it  Therefore,  in  an  action 
by  the  reversioner  against  the  tenant  for  waste, 


the  measure  of  damages  is  not  necessarily  the 
sum  which  it  would  cost  to  restore  the  property 
to  its  condition  before  the  waste  ;  the  true 
measure  of  damages  is  the  diminution  in  the 
value  of  the  reversion,  less  a  discount  for 
immediate  payment.  Whit  ham  v.  Kershaw, 
16  Q.  B.  D.  613  ;  54  L.  T.  124  ;  34  W.  R.  340— 
0.  A. 

Penalty  or  Liquidated  Damages.] — Lessees, 
who  had  been  granted  the  privilege  of  placing 
slag  from  blast  furnaces  on  land  let  to  them, 
covenanted  (inter  alia)  to  pay  the  lessor  100/. 
per  imperial  acre  for  ail  land  not  restored  at  a 
particular  date  : — Held,  that  the  sum,  although 
described  in  one  part  of  the  agreement  as  "  the 
penalty  therein  stipulated, "  was  not  a  penalty  ; 
but  estimated  or  stipulated  damages.  Elphin* 
stone  v.  Mimkland  Iron  and  Coal  Company,  11 
App.  Cas.  332  ;  35  W.  R.  17— H.  L.  (Sc/). 

Where  one  lump  sum  is  made  payable  by  way 
of  compensation  on  the  occurrence  of  one  or 
more  or  all  of  several  events,  some  of  which  may 
occasion  serious,  and  others  but  trifling,  damage, 
the  presumption  is  that  the  parties  intended  the 
sum  to  be  penal,  subject  to  modification ;  but 
where  the  payments  stipulated  are  made  pro- 
portionate to  the  extent  of  which  the  contractors 
may  fail  to  fulfil  their  obligations,  and  they  are 
to  bear  interest  from  the  date  of  the  failure, 
payments  so  adjusted,  with  reference  to  the 
actual  damage,  are  liquidated  damages.    lb. 


e.    Fixture*. 

What  are  Fixtures.] — The  question  whether  a 
particular  article  is  a  moveable  chattel  or  a 
fixture  depends  on  the  degree  of  annexation  to 
the  freehold,  and  the  object  of  annexation. 
Cosby  v.  Shaw,  19  L.  R.,  Ir.  307— V.-C. 

To  keep  and  yield  up  in  Repair  Premises 
and  all  Improvements  at  date  of  Demise,  or 
thereafter  to  be  made.] — In  1804,  owners  of  the 
fee-simple  of  certain  premises  agreed,  by  in* 
dented  articles,  to  demise  them  for  lives  renew- 
able for  ever,  and  the  intended  lessees  agreed  to 
pull  down  a  mill  on  the  premises,  and  build  a 
new  one,  and  covenanted  to  keep  the  mills  and 
works  in  constant  working  order,  repair,  and 
condition.  On  the  30th  July,  1823,  a  lease  was 
executed  in  pursuance  of  this  agreement,  and 
the  lessee  thereby  covenanted  to  preserve  and 
keep  the  premises,  and  all  buildings  and  im- 
provements then  or  thereafter  to  be  made  thereon, 
in  good  order  and  repair;  to  keep  the  mills, 
works,  and  machinery  therein  in  working  order, 
repair,  and  condition  ;  to  yield  up  the  premises, 
and  all  buildings  and  improvements,  in  like  good 
order,  repair,  and  condition,  and  to  keep  the 
mills  and  works  thereto  belonging,  or  in  any- 
wise appertaining,  in  constant  working  order 
and  repair.  The  lease  was  renewed  in  1829,  the 
renewal  containing  similar  covenants  by  the 
tenant  On  the  8th  November,  1834,  an  under- 
lease, at  a  profit  rent,  was  made  of  the  mills  and 
premises  for  999  years,  which  disclosed  the 
existence  of  a  head  lease.  In  1862  S.  &  Co. 
became  assignees  of  the  sub-lease,  and,  having 
entered  into  possession,  took  out  the  old  mill- 
stone, and  erected  a  quantity  of  new  machinery 
in  the  mill,  of  an  improved  description.  In 
1865  a  fee-farm  grant  was  made  by  the  plaintiff, 


1083 


LANDLORD    AND    TENANT— Leases. 


1084 


as  owner  of  the  reversion,  to  the  owners  of  the 
superior  lease,  with  covenants  by  the  grantees 
similar  to  the  lessee's  covenants  in  the  original 
lease  and  renewal,  and  also  to  keep  the  mills 
and  works  in  constant  working  order,  repair, 
and  condition.  In  1874  an  agreement  was  exe- 
cuted between  the  head  landlord  and  S.  &  Co. 
reciting  the  original  lease,  its  renewal,  the  under- 
lease, and  the  derivative  title  to  it,  and  giving 
S.  &  Co.  liberty  to  erect  an  engine-house  and 
shed,  in  pursuance  of  which  the  defendants 
erected  a  steam-engine  and  boiler,  and  buildings 
for  the  same.  In  1886  S.  k,  Co.  sold,  and  pro- 
ceeded to  remove,  the  new  machinery  placed 
by  them  in  the  mill : — Held,  that  S.  &  Co.  were 
precluded  by  the  terms  of  the  contract  of  tenancy 
having  regard  to  the  covenants  in  the  several 
instruments  constituting  their  title,  and  of 
which  they  had  notice,  from  removing  tenants* 
fixtures,  including  the  new  and  improved  ma- 
chinery, and  its  accessories.    lb. 

Removal  before  Termination  of  Lease — Bank- 
ruptcy.]— A  lease  of  a  mill  and  warehouse  for 
twenty-one  years  contained  a  covenant  by  the 
lessors  with  the  lessees  (inter  alia) :  (4)  that 
certain  articles  mentioned  in  a  schedule  should 
be  the  property  of  the  lessees,  and  should,  be  re- 
moveable  by  them,  they  making  good  all  damage 
done  by  such  removal.  The  articles  mentioned 
in  the  schedule  were  iron  columns,  beams,  floors, 
brick  piers,  and  things  ejusdem  generis.  There 
was  a  proviso  (2)  that  the  lessees  might  by  notice 
determine  the  term  at  the  end  of  seven  or  four- 
teen years,  (1)  that  on  the  tenant's  bankruptcy 
the  term  should  cease,  and  (3)  that  on  the  deter- 
mination or  cesser  of  the  term  all  the  machinery 
and  also  all  the  buildings  erected  by  the  lessees 
should  be  their  property,  and  should  be  removed 
by  them  previously  to  the  determination  or  cesser 
of  the  term,  unless  it  should  then  be  mutually 
agreed  that  the  lessors  should  purchase  them, 
the  lessees  in  cases  of  removal  to  make  good  all 
damages  which  might  be  caused  by  such  re- 
moval. The  tenants  failed  and  the  lease  deter- 
mined:— Held,  that  the  official  receiver  was 
nevertheless  entitled  to  the  articles  mentioned 
in  clause  (4)  of  this  covenant  and  clause  (3)  of 
the  proviso  as  being  the  property  of  the  lessees. 
Gould  or  Ooold,  Ex  parte,  Walker,  In  re,  18  Q. 
B.  D.  454 ;  51  L.  T.  368  ;  1  M.  B.  R.  168— D. 

£    Quiet  Enjoyment. 

Hotice  by  Superior  Landlord  to  pay  Sent  to 
Mm — Damages.] — The  defendants  granted  the 
lease  of  certain  premises  to  the  plaintiff,  with  a 
covenant  by  the  lessors  for  quiet  enjoyment 
thereof  by  the  lessee,  and  a  covenant  by  the 
lessee  to  pay  rent  to  the  lessors.  At  a 
time  when  the  plaintiff  was  in  arrear  with 
his  rent,  the  defendants  sent  a  notice  to  his 
tenants  requiring  them  to  pay  their  rent  to  the 
defendants'  agent  instead  of  to  the  plaintiff. 
One  of  the  plaintiff's  tenants  accordingly  paid 
his  rent  to  the  defendants'  agent.  The  plaintiff 
having  brought  an  action  against  the  defendants 
for  breach  of  the  covenant  for  quiet  enjoyment : 
— Held,  that  this  notice  was  a  breach  by  the 
lessors  of  the  covenant  for  quiet  enjoyment ; 
that  non-payment  of  the  rent  by  the  lessee  did 
not  disentitle  him  to  the  protection  of  that  cove- 
nant ;  and  that  be  was  entitled  to  more  than 
nominal  damages  for  the  breach  of  it.    Edge  v. 


Bmlean,  16  Q.  B.  D.  117  ;  55  L.  J.,  Q.  B.  90 ;  53 
L.  T.  907 ;  34  W.  R.  103— D. 

Title  and  Possession  not  Affected— Drainage— 
Causing  Floods.] — In  order  to  constitute  a  breach 
of  covenant  for  quiet  enjoyment  in  a  lease  of 
land,  it  is  sufficient  that  the  lessee's  ordinary  and 
lawful  enjoyment  of  the  demised  land  be  sub- 
stantially interfered  with  by  the  acts  of  the  lessor 
or  those  lawfully  claiming  under  him,  although 
neither  the  title  to  the  land  nor  the  possession  of 
the  land  be  otherwise  affected.  By  a  general 
system  of  drainage  made  by  the  defendants  in  a 
particular  district,  various  farms  in  that  district 
were  drained  by  several  underground  drains,  by 
which  the  water  was  carried  through  all  such 
farms.  The  defendants  let  one  of  these  farms  to 
the  plaintiff  with  the  usual  covenant  for  quiet 
enjoyment  against  the  acts  of  the  lessors  or  any 
person  lawfully  claiming  through  or  under  them. 
The  defendants  had  previously  let  another  of 
such  farms  adjoining,  but  lying  above  the  plain- 
tiff's farm,  to  one  C,  with  a  right  to  use  the 
drains  through  the  plaintiff's  land,  so  far  as  they 
were  adequate  to  carry  the  water  from  C.'s  farm. 
C,  during  the  plaintiff's  tenancy,  first,  by  an 
excessive  user  of  the  drainage  system,  which  was 
properly  constructed  for  the  purpose  of  drainage, 
caused  the  water  passing  down  the  drains  in  his 
farm  to  escape  and  overflow  into  the  plaintiff's 
farm  and  damage  his  crops.  Secondly,  by  a 
proper  user  by  C.  of  the  drains  passing  through 
the  plaintiff's  farm,  damage  was  also  done  to  a 
field  in  the  plaintiff's  farm  by  the  escape  of  water, 
but  this  arose  from  one  of  the  drains  there 
having  been  imperfectly  and  improperly  con- 
structed : — Held,  that  the  defendants  were  liable 
to  the  plaintiff  for  a  breach  of  their  covenant  for 
quiet  enjoyment  in  respect  of  this  last  damage, 
as  there  had  been  within  the  meaning  of  such 
covenant  a  substantial  interruption  by  a  per- 
son who  lawfully  claimed  through  the  defen- 
dants ;  but  that  the  defendants  were  not  liable 
for  the  damage  done  by  the  excessive  user  by  C. 
of  the  drainage  system,  which  was  properly  con- 
structed, either  under  their  covenant  for  quiet 
enjoyment  or  under  the  law  of  trespass  or 
nuisance.  Sanderson  v.  Berwifk-npon-Tv&i 
{Mayor),  13  Q.  B.  D.  647  ;  53  L.  J.,  Q.  B.  559 ; 
51  L.  T.  495  ;  33  W.  R.  67  ;  49  J.  P.  6— C.  A. 

Liability  of  Mortgagor— Estoppel.]— Where  a 
mortgagor  demised  incumbered  land,  and  cove- 
nanted for  quiet  enjoyment,  and  the  leasee  was 
ejected  by  the  mortgagees : — Held,  that  although 
the  legal  estate  was  outstanding  in  the  mort- 
gagees, yet  as  there  was  a  reversion  in  the  land- 
lord by  estoppel,  he  was  liable  upon  his  covenant 
Hartoup  v.  Bell,  1  C.  &  E.  19— Manisty,  J 
Affirmed  in  C.  A. 


g.    Not  to  Assign  or  Underlet. 

Lessor's  Consent— Responsible  Person. J— A 
lease  of  a  farm  contained  a  clause  of  forfeiture 
if  (inter  alia)  the  lessee  should  underlet  or  part 
with  the  possession  of  the  demised  premises,  or 
any  part  thereof,  without  the  consent  in  writing 
of  the  lessor  first  had  and  obtained,  provided 
always  that  such  consent  should  not  be  withheld 
if  the  proposed  assignee  or  lessee  were  a  respect- 
able and  responsible  person : — Held,  that  the 
consent  of  the  lessor  was  not  necessary  if  the 


r 


1085 


LANDLORD    AND    TENANT— Leases. 


1086 


lessee  underlet  or  parted  with  possession  of  the 
premises  to  a  respectable  and  responsible  person. 
Burford  v.  Unwin,  1  C.  &  E.  494— Huddle- 
Eton,  B. 

Indorsement  of  Consent.] — A  lease,  made  in 
1866,  contained  a  clause  that  the  lessee  should 
not  assign  the  premises  without  the  consent  in 
writing  of  the  lessor,  to  be  indorsed  on  the  lease. 
The  lessee  assigned  with  the  contemporaneous 
consent  in  writing  of  the  lessor,  which  was  in- 
dorsed on  the  lease,  but  not  on  the  assignment : 
—Held,  that  the  assignment  was  ▼alid.  Ulster 
Permanent  Building  Sttcisty,  In  re,  13  L.  R.,  Ir. 
67-M.  R. 

Lattor'i  Consent  whether  Implied.] — When  a 
lease  is  not  assignable  without  the  landlord's 
assent,  the  fact  that  the  landlord  did  not  object 
to  the  assignees  taking  possession  cannot,  irre- 
spective of  all  other  circumstances,  he  held 
efficient  to  imply  his  recognition  of  the  assignees. 
Bpkvutone  v.  AfonJUand  Iron  and  Coal  Co.,  11 
App.  Cas.  332— H.  L.  (Sc.) 


h.    As  to   Bate*   and  Taxes 


liability  of  Assignor  of  Lease — Ambassador, 
TmwBn1ties  of.] — A  lease  of  a  dwelling-house 
contained  a  covenant  by  the  lessee  to  pay  the 
sewers  rate    and  all   other  rates,   taxes,  and 
assessments,  and  impositions  of  what  nature  or 
kind  soever,  andwhether  parliamentary,  parochial, 
or  otherwise,  which  then  were,  or  at  any  time 
thereafter  during  the  term  should  be  assessed, 
charged,  or  imposed  upon  the  demised  premises, 
or  on  the  landlord  in  respect  thereof.    By  a  local 
set  relating  to  parochial  rates  in  the  parish  in 
whif:h  the  demised  premises  were  situated,  it  was 
provided  that  every  rate  or  assessment  made, 
uid,  or  sssessed  by  virtue  of  the  act  in  respect  of 
soy  land,  ground,  house,  &c,  which  any  ambas- 
sador, envoy,  resident,  agent  or  other  public 
sinister  of  any  foreign  prince  or  state,  or  the 
savant  of  any  such  ambassador,  envoy,  resident, 
agent,  or  public  minister,  or  any  other  person 
not  liable  by  law  to  pay  such  rate  or  assessment 
then  did  or  thereafter  should  inhabit,  should  be 
paid  by  and  be  recoverable  from  the  landlord, 
owner,  lessor,  or  proprietor  of  such  land,  ground, 
Bouse,  sec    The  lessee  of  the  demised  premises 
assigned  the  same  to  an  attache  of  a  foreign 
embassy,  who  occupied  them  as  his  residence. 
The  assignee  having   claimed  exemption  from 
liability  to  pay  a  parochial  rate  made  in  respect 
of  the  premises  under  the  local  act,  the  parish  autho- 
rities enforced  payment  of  the  same  against  the 
lessor.    In  an  action  brought  against  the  lessee 
by  the  lessor  to  recover  the  amount  so  paid  by 
aim : — Held,  that  payment  of  the  rate  was  not 
enforceable  against   an   attache  of   a  foreign 
embassy ;  that  the  rate  was  therefore  under  the 
local  set  recoverable  from  the  lessor;  and  that 
the  lessee  was    under  the  covenant  bound  to 
repay  to  the  lessor  the  amount  of  the  rate  so  paid 
by  him.    Parkinson  v.  Potter,  16  Q.  B.  D.  162  ; 
W  L.  J.,  Q.  B.  153;  53  L.  T.  818  ;  34  W.  R.  215 ; 
JO  J.  p.  470— D. 

"Ottgoiags" — Owner's  Proportion  of  Paving 

••traetf-The  lessee  of  a  house  in  a  new  street 
within  the  metropolitan  district  covenanted  with 
ait  lessor  to  pay  during  the  term  "  all  existing  and 


future  taxes,  rates,  assessments,  land-tax,  tithe  or 
tithe  rent-charge,  and  outgoings  of  every  de- 
scription for  the  time  being  payable  either  by  the 
landlord  or  tenant  in  respect  of  the  said  premises" : 
Held,  that  the  owner's  proportion  of  the  cost  of 
paving  the  street  under  26  &  26  Vict.  c.  102, 
s.  96,  was  an  "  outgoing  "  payable  by  the  lessee 
under  this  covenant.  Aldridge  v.  Feme,  17  Q. 
B.  D.  212  ;  55  L.  J.,  Q.  B.  587  ;  34  \V.  K.  578— D. 

"All  Bates,  Taxei,  and  Assessments"  — 
Sxpeniei  of  Paving  Street.] — By  an  agreement 
of  lease  the  tenant  agreed  to  pay  "  all  rates,  taxes, 
and  assessments  payable  in  respect  of  the  premises 
during  the  term  : " — Held,  that  a  sum  assessed 
upon  the  owners  as  their  proportion  of  the 
expense  of  paving  the  street  upon  which  the 
premises  abutted,  was  not  a  rate,  tax,  or  assess- 
ment within  the  meaning  of  the  covenant,  but  a 
charge  imposed  upon  the  owner  for  the  permanent 
improvement  of  his  property.  Wilkinson  v. 
Collyer,  13  Q.  B.  D.  1  ;  53  L.  J.,  Q.  B.  278  ;  51  L. 
T.  299  ;  32  W.  R.  614  ;  48  J.  P.  791— D. 

"Rates,  Assessments,  Impositions  and  (hit- 
goings  " — Sewering  Street  under  Public  Health 
Act.]—  A  lessee  covenanted  to  pay  the  tithe  or 
rent  charges  in  lieu  of  tithes  and  tax  (if  any), 
sewers  rates,  main  drainage  rates,  and  all  other 
taxes,  rates,  and  assessments,  and  impositions  and 
outgoings  whatsoever  then  or  thereafter  to  be 
charged  or  imposed  on  or  in  respect  of  the  said 
premises  or  any  part  thereof: — Held,  that  the 
lessee  was  not  liable  to  pay  the  amount  charged 
by  the  urban  authority  for  sewering,  levelling, 
and  paving  the  road  on  which  the  demised 
premises  abutted,  under  s.  150  of  the  Public 
Health  Act,  1875.  Hill  v.  Edward,  1  C.  &  E.  481 
— Mathew,  J. 

Lessor  to  pay  "all  Sates  chargeable  in 
respect  of  Demised  Premises  " — Water  Sate.  ] — 
In  a  lease  of  a  shop  and  basement  and  of  three 
rooms  on  the  third  floor  of  the  same  house,  the 
lessor  covenanted  to  pay  "all  rates  and  taxes 
chargeable  in  respect  of  the  demised  premises." 
Water  was  separately  supplied  by  a  water  com- 
pany to  the  shop  and  basement,  and  paid  for  by 
the  tenant.  In  an  action  to  recover  from  the 
lessor  the  amount  so  paid: — Held,  that  such 
charge  was  a  "  rate  "  within  the  meaning  of  the 
covenant.  lHrect  Spanish  Telegraph  Company 
v.  Shepherd,  13  Q.  B.  D.  202  ;  53  L.  J.,  Q.  B.  420  ; 
51  L.  T.  124  ;  32  W.  R.  717  ;  48  J.  P.  550— D. 


L    Trade  or  Business. 

Business,  what  is— Charitable  Institution 
where  no  Payment  received,] — The  lease  of  a 
house  contained  a  covenant  that  the  lessee  should 
not  use,  exercise,  or  carry  on  upon  the  premises 
any  trade  or  business  of  any  description  what- 
soever:— Held,  that  a  charitable  institution 
called  a  "  Home  for  Working  Girls/'  where  the 
inmates  were  provided  with  board  and  lodging, 
whether  any  payment  was  taken  or  not,  was  a 
business,  and  came  within  the  restrictions  of  the 
covenant  Rolls  v.  Miller,  27  Ch.  D.  71  ;  63  L. 
J.,  Ch.  682  ;  50  L.  T.  597  ;  32  W.  R.  806— G.  A. 
Affirming  48  J.  P.  357,  518— Pearson,  J. 

It  is  not  essential  that  there  should  be  payment 
in  order  to  constitute  a  business ;  nor  does  pay- 


1087 


LANDLORD    AND    TENANT— Leases. 


1088 


ment  necessarily  make  that  a  business  which 
without  payment  would  not  be  a  business,    lb. 

—  Using  House  as  Hospital.  J — A  covenant 
not  to  use  a  house  for  "  the  exercise  or  carrying 
on  of  any  art,  trade  or  business,  occupation  or 
calling,"  is  broken  by  using  the  house  for  the 
purpose  of  a  hospital  association,  established 
without  a  view  to  profit,  to  provide  accommoda- 
tion for  patients  able  and  willing  to  pay  for  it. 
Portman  y.  Horns  Hospital*  Association,  27  Ch. 
D.  81,  n. ;  50  L.  T.  699,  n.— Jessel,  M.  R. 

Any  Art,  Trade,  &o. — Teacher  of  Music— Con- 
structive Hotice — Parties.]— In  1857  A.  granted 
a  lease  of  a  house  for  a  term  of  ninety-three 
years,  with  a  restrictive  covenant  against  the 
user  of  the  house  for  any  art,  trade,  or  business. 
The  term  granted  by  the  lease  became  vested  in 
B.,  and  in  October,  1883,  B.  granted  a  lease  of 
the  house  to  C.  for  twenty-one  years,  with  an 
express  permission  that  he  might  use  the  house 
in  his  profession  of  teaching  music  and  singing, 
and  with  the  usual  covenant  for  quiet  enjoy- 
ment. There  was  constructive  notice  of  the 
original  lease  in  the  underlease,  but  C.  had  no 
personal  knowledge  or  notice  of  the  restrictive 
covenant  A  breach  of  this  covenant  having 
been  committed  by  C,  the  devisees  in  trust  of 
A.  brought  an  action  against  B.  and  C,  claiming 
an  injunction  and  damages  : — Held,  that  the 

Slaintiffa  were  entitled  to  an  injunction  against 
L,  and  damages  against  B.,  who  was  a  proper 
party  to  the  action.  Tritton  v.  Banhart,  56 
L.  T.  306 ;  35  W.  R.  474— Kekewich,  J. 

"Annoyance,  Huisance,  or  Grievance" — Hos- 
pital— Infections  or  Contagions  Diseases.  1 — A 

lease  of  premises  in  a  residential  neighbourhood 
in  London  contained  a  covenant  against  carrying 
on  certain  specified  trades,  or  any  other  noisome, 
obnoxious,  or  offensive  trade  or  business,  or 
doing  anything  upon  the  premises  which  might 
be  or  grow  to  the  annoyance,  nuisance,  grievance, 
or  damage  of  the  lessor,  or  the  inhabitants  of  the 
neighbouring  or  adjoining  houses.  The  tenant 
used  the  premises  as  an  hospital  for  diseases  of 
the  throat  and  various  other  diseases.  Diseases 
known  to  be  of  an  infectious  or  contagious  nature 
were  not  treated  : — Held,  that  the  hospital  was 
a  grievance  within  the  covenant.  Tod-Heatley 
v.  Benham,  40  Ch.  D.  80  ;  58  L.  J.,  Ch.  83  ;  60 
L.  T.  241 ;  37  W.  R.  38— C.  A. 


Hot  to  permit  or  suffer  Premises  to  bo  occu- 
pied by  Person  carrying  on  Offensive  Trade — 
Sub-lessee.] — A  lease  contained  a  covenant  by 
the  lessee  and  his  assigns  "  not  to  use,  exercise, 
or  carry  on  upon  the  demised  premises,  or  permit 
or  suffer  any  part  thereof  to  be  occupied  by  any 
person  who  shall  use,  occupy,  or  carry  on  therein 
any  noisome  or  offensive  trade."  E.  purchased 
an  underlease  of  the  premises  with  notice  of 
the  covenant  in  the  original  lease,  and  made 
a  further  sub-demise,  containing  a  similar 
covenant,  to  M.  M.,  after  being  in  occupation 
some  months,  began  to  carry  on  an  offensive 
business  on  the  premises.  In  an  action  by  the 
original  lessor,  claiming  an  injunction  against 
both  E.  and  M.  :— Held,  that  no  injunction 
ought  to  be  granted  against  E.,  there  being  no 
evidence  to  show  that  E.  had  authorised  or 
sanctioned  M.  to  occupy  the  premises  to  carry 
on  therein  an  offensive  business;  and  that  E. 


was  not  to  be  compelled  by  means  of  an  injunc- 
tion to  bring  an  action  of  ejectment  against  M. 
The  doctrine  of  Tnlh  v.  Moxhay  (2  Ph.  774), 
explained.  Haywood  v.  Brunswick  Building 
Soritty  (8  Q.  B.  D.  403),  and  Austerberry  v. 
Oldham  Corporation  (29  Ch.  D.  750),  followed. 
Hall  v.  Ewin,  37  Ch.  D.  74  ;  57  L.  J.,  Ch.  95 ; 
57  L.  T.  831  ;  36  W.  R.  84— C.  A. 

Semble,  that  the  words  "  shall  not  suffer  or 
permit  '*  in  a  covenant  of  this  kind  ought  not  to 
be  construed  as  equivalent  to  "  shall  hinder  and 
prevent,"  but  rather  as  "shall  not  authorise  or 
sanction."    lb. 


j.  For  Benewal  of  Lease. 

Power  of  Leasing  —  Sanction  of  Court  — 
"  Best  Sent"  —  Specific  Performance.]  —  A 
covenant  for  renewal  in  a  lease  executed 
by  a  lessor  under  a  power  of  granting  leases 
in  possession  at  the  best  rent  is  good,  and 
may  be  enforced  against  the  lessor,  provided 
that,  at  the  time  for  its  performance,  the  new 
lease  reserves  the  best  rent  that  can  then  be  ob- 
tained, and  contains  only  stipulations  then 
authorised  by  the  power.  But  if  at  the  time 
when  performance  of  the  covenant  is  claimed, 
the  stipulated  rent  is  not  the  best  rent,  the  lessee 
is  not  entitled  either  to  specific  performance  or 
damages,  even  though  the  original  lease  had  been 
sanctioned  by  the  court  in  the  presence  of  all  the 
beneficiaries.  Oat  Light  and  Coke  Company  t. 
Tow*e,  35  Ch.  D.  519  ;  56  L.  J.,  Ch.  889  ;  66  L.T. 
602— Kay,  J. 

A  private  act  of  1828,  relating  to  a  testator's 
real  estate,  empowered  his  trustees  to  grant  build- 
ing leases  in  possession  not  exceeding  seventy* 
five  years  at  "the  best  yearly  rent"  In  i860 
under  an  order  in  certain  suits  relating  to  the 
estate,  the  surviving  trustee,  in  pursuance  of  the 
power  and  with  the  approval  of  the  judge  (some 
of  the  cestuis  que  trust  being  also  before  the 
court,  and  others  being  represented  by  trustees) 
demised  certain  copyhold  land  to  a  gas  company 
(then  in  occupation  under  an  agreement  for  the 
lease,  which  agreement  had  also  been  sanctioned 
by  the  court)  for  thirty  years  at  the  yearly  rent 
of  301.,  the  lessor  covenanting  to  renew  at  the 
end  of  the  term  for  a  similar  term  at  the  like 
rent,  if  the  lessees  previously  signified  their  de- 
sire for  renewal  by  notice  in  writing  delivered 
to  the  lessor,  "  his  heirs  or  assigns,  or  left  at  his 
or  their  usual  place  or  places  of  abode."  The 
lessor  had  obtained  from  the  lord  of  the  manor 
of  which  the  copyhold  land  was  held  a  licence  to 
grant  leases  covering  fifty-one  years  from  the 
date  of  the  lease.  Under  the  agreement  for  the 
lease  and  before  the  lease  was  executed,  the 
company  spent  a  considerable  sum  in  erecting  s 
large  purifying-house  on  the  land.  Before  the 
expiration  of  the  lease  the  solicitors  to  a  new 
gas  company,  the  successors  to  the  original 
lessees,  gave  notice  in  writing  to  the  solicitors  to 
the  then  trustees,  the  original  lessor  having  died, 
of  the  lessees'  desire  for  renewal,  but  the  lessors 
declined  to  renew  on  the  grounds  (amongst 
others)  that,  as  the  fact  was,  the  value  of  the 
property  had  very  largely  increased,  that  the 
original  rent  was  therefore  not  now  "the  best 
yearly  rent,"  and  that  the  covenant  for  renewal 
was  not  authorised  by  the  power.  In  an  action 
by  the  company  against  the  present  trustees  and 
their  cestuis  que  trust  claiming  specific  perfor- 


1069 


LANDLORD    AND    TENANT— Leases. 


1090 


mance  of  the  covenant  or  damages  : — Held,  (1) 
that  the  covenant  was  not  ultra  vires  ;  bat  (2) 
that  specific  performance  of  it  could  not  be  en- 
forced, as  the  original  rent  was  not  now  the  best 
rent;  (3)  that  the  act  12  &  13  Vict.  c.  26,  en- 
abling the  court  to  remedy  defects  in  leases  in 
certain  cases,  did  not  apply  to  the  present  case, 
there  having  been  no  "  mistake  or  inadvertence  " 
on  the  part  of  the  lessor,  nor  "  ignorance  of  title 
on  the  part  of  the  lessees ; "  and  (4)  that  on  the 
doctrine  of  Bain  v.  Fothergill  (7  L.  R.,  H.  L. 
158),  the  lessees  could  not  recover  damages  for  a 
breach  of  covenant  arising  from  infirmity  of  title. 
Quaere,  whether  giving  notice  for  renewal  to  the 
lessor's  solicitors  was  a  proper  compliance  with 
the  terms  of  the  lease  as  to  notice.    lb. 

On  dropping  of  one  or  more  Lives.] — A  lessor 
demised  hereditaments  to  the  lessee,  his  heirs 
and  assigns,  for  the  natural  lives  of  the  lessee 
and  two  other  persons  and  the  longest  liver  of 
them,  with  a  covenant  that  the  lessor,  his  heirs 
and  assigns  (upon  the  lessee,  his  heirs  or  assigns, 
"  surrendering  this  present  demise  as  hereinafter 
mentioned  ")  should  at  any  time  thereafter  at 
the  request  of  the  lessee,  his  heirs  or  assigns, 
"  as  often  as  one  or  two  life  or  lives  of  and  in 
the  said  hereditaments  "  should  drop  and  be  de- 
termined, renew  and  grant  a  further  term  "  for 
any  other  life  or  two  lives  of  any  other  person 
or  persons  to  be  nominated  by  the  lessee,  his 
heirs  or  assigns,  in  the  stead  of  the  person's  life 
or  lives  so  dropping  or  determining ; "  the 
leasee,  his  heirs  or  assigns,  paying  to  the  lessor, 
his  heirs  or  assigns,  "  for  every  such  renewal  for 
every  life  or  lives  of  such  person  or  persons  so 
to  be  renewed  as  aforesaid  the  sum  of  40*.  only, 
and  at  the  same  time  surrendering  this  present 
demise  to  be  cancelled":— Held,  that  upon  the 
true  construction  of  the  covenant  the  right  of 
renewal  was  neither  perpetual,  nor  limited  to 
one  renewal  for  not  more  than  two  new  lives, 
bat  was  a  right  of  renewal  as  often  as  any  of 
the  three  original  lives  should  drop,  so  that  any 
such  renewal  might  take  place  either  on  the 
dropping  of  any  one  of  the  said  three  lives,  or 
after  the  dropping  of  any  two  of  them,  as  the 
leasee  might  from  time  to  time  request.  Stain- 
**r»  v.  MUbum,  9  App.  Cas.  844  ;  54  L.  J.,  Q. 
B.  6 :  62  L.  T.  222  ;  33  W.  R.  325— H.  L.  (B.). 


k.  Belatinff  to  Husbandry. 

To  pay  Interest  on  Incoming  Valuation — 
Doty  on  Quitting.] — An  agreement  was  entered 
into  by  a  tenant  under  a  lease  to  pay  interest  at 
&  per  cent,  on  the  amount  of  his  incoming 
valuation,  and  4*  upon  quitting  to  leave  a  valua- 
tion of  tenant  rights  equal  in  value,  and  of  the 
same  nature  and  kind  :" — Held,  not  to  create  a 
personal  debt  to  the  lessor,  but  to  enure  for  the 
benefit  of  a  subsequent  landlord.  Wag  staff  v. 
Clinton,  1  C.  k  B.  46— Field,  J. 

To  keep  Farm  properly  Stocked — Injunction.] 
—An  injunction  will  not  be  granted  to  restrain 
a  threatened  breach  by  a  tenant  of  a  stipulation 
in  a  farming  agreement  requiring  him  to  keep 
on  the  farm  a  proper  and  sufficient  stock  of 
sheep,  horses,  and  cattle.  Phippt  v.  Jackson, 
W  L.  J.,  Cb.  550  ;  36  W.  B.  378— Stirling,  J. 

lankrmptey  of  Tenant— Disclaimer— Trustee 


claiming  Hay  and  Straw.] — A  lease  of  a  farm 
contained  a  covenant  by  the  lessee  not  to  sell, 
without  permission  in  writing  of  the  landlord, 
the  hay,  straw,  &c,  grown  upon  the  farm.  A 
resolution  was  passed  under  the  Bankruptcy 
Act,  1869,  by  the  creditors  of  the  lessee  for  the 
liquidation  of  his  affairs  by  arrangement,  and  a 
trustee  was  appointed.  The  trustee  disclaimed 
the  lease,  but  claimed  to  be  entitled  to  the  hay, 
straw,  &c,  grown  on  the  farm  :— Held,  that  the 
statute  56  Geo.  3,  c.  50,  s.  11,  which  provided 
that  the  assignee  of  a  bankrupt  should  not  take 
any  hay,  &c,  on  any  farm  which  the  bankrupt 
could  not  take,  applies  to  a  trustee  in  liquidation 
or  in  bankruptcy  under  the  Bankruptcy  Act, 
1869,  and  that,  notwithstanding  the  disclaimer 
of  the  lease  by  the  trustee,  he  was  not  entitled 
to  sell  the  hay,  &c.,  grown  on  the  farm.  Lybbe 
v.  Hart ,  29  Ch.  D.  8  ;  54  L.  J.,  Ch.  860  ;  52  L. 
T.  634— C.  A. 

A  tenant  of  a  farm,  restrained  by  agreement 
from  selling  the  hay  and  straw  grown  on  the 
farm,  became  bankrupt.  The  trustee  in  bank- 
ruptcy removed  and  sold  a  quantity  of  the  hay 
in  breach  of  the  agreement  and  then  disclaimed 
the  lease.  The  landlord  sued  the  trustee  for  the 
removal  of  the  hay  : — Held,  that  the  trustee  was 
personally  liable  for  his  wrongful  act  in  selling 
the  hay ;  that  he  was  not  protected  by  s.  55, 
sub-8.  2,  of  the  Bankruptcy  Act,  1883.  Scho- 
field  v.  Hincks,  58  L.  J.,  Q.  B.  147 ;  60  L.  T. 
573  ;  37  W.  R.  157— D. 


1.    What  Covenants  Implied. 

Liability  of  Landlord — Injury  caused  by 
defective  Repair  of  demised  Premises.] — The 
plaintiff  was  injured  through  a  defect  in  the 
condition  of  a  coal-plate  in  the  pavement  in 
front  of  a  house  let  by  the  defendant  on  a 
weekly  tenancy,  and  such  defect,  though  not 
shown  to  have  been  in  existence  at  the  com- 
mencement of  the  tenancy,  had  existed  for 
nearly  two  years  before  the  accident : — Held, 
that  having  regard  to  the  nature  of  the  tenancy, 
there  had  been  a  re -letting  of  the  premises  after 
the  nuisance  was  created,  and  that  the  defen- 
dant, as  reversioner,  was  liable.  Gandy  v. 
Jubber  (5  B.  &  S.  78 ;  9  lb.  15)  discussed. 
Sandford  v.  Clarke,  21  Q.  B.  D.  398  ;  57  L.  J., 
Q.  B.  507  ;  59  L.  T.  226  ;  37  W.  R.  28  ;  62  J.  P. 
773— D. 

Overstocking    of  Land    with   Game — 

Injury  to  Crops.] — The  plaintiff  was  the  tenant 
of  a  farm  over  which  the  shooting  rights  were 
reserved  to  the  landlord.  The  defendants  were 
lessees  of  the  shooting  rights  over  the  estate 
of  which  the  plaintiff's  farm  formed  part. 
The  plaintiff  brought  his  action  in  the  county 
court  against  the  defendants  for  compensation 
for  injury  done  to  his  crops  by  pheasants 
brought  into  a  coppice  adjoining  his  farm. 
It  was  proved  at  the  trial  that  the  defendants 
had  brought  from  another  part  of  the  estate 
450  pheasants,  and  turned  them  down  in  the 
coppice  adjoining  the  plaintiff's  farm,  and  that 
the  pheasants  came  out  of  the  wood  and  did 
damage  by  feeding  on  the  crops  in  his  field, 
which  was  contiguous  to  the  coppice.  The 
amount  of  the  damage  done  was  not  disputed. 
The  county  court  judge  held  that  the  plaintiff 
was   entitled   to  recover  the  amount  claimed. 

N  N 


1091 


LANDLORD    AND    TENANT— Bent. 


1092 


The  defendants  appealed  :«~Held,  on  appeal, 
that  the  county  court  judge  was  right,  and  the 
plaintiff  was  entitled  to  recover,  as  the  damage 
complained  of  had  been  done  by  reason  of  an 
undue  quantity  of  game  having  been  brought 
near  to  his  farm,  and  that  the  sporting  rights  of 
the  defendants  had  been  exercised  in  an  un- 
reasonable manner.  Farrer  v.  Nelson,  15  Q.  B. 
D.  258 ;  54  L.  J.,  Q.  B.  385 ;  52  L.  T.  766  ;  33 
W.  R.  800  ;  49  J.  P.  725— D. 

Duty  of  Landlord   to   protect   Premises.] — 

Where  premises  are  let  as  a  jeweller's  shop  to 
be  occupied  during  hours  of  business  only,  the 
landlord,  in  the  absence  of  express  stipulation, 
is  under  no  liability  for  a  loss  occasioned  by  a 
robbery  during  the  night,  even  though  the  pre- 
mises were  insufficiently  protected.  JBspir  v. 
Todd,  1  C.  &  K.  155— Cave,  J. 

m.  In  other  Oases. 

Option  to  purchase  Fee  Simple — Hature  of 
Interest  conferred  on  Lessee  —  Beal  and  Per- 
sonal Representatives.]— A  lease  of  land  con- 
tained a  covenant  by  the  lessor  with  the  lessee, 
his  executors,  administrators,  and  assigns,  that 
if  the  lessee,  his  executors,  administrators,  or 
assigns,  should  at  any  time  thereafter  be  desirous 
of  purchasing  the  fee  Bimple  of  the  demised 
land,  and  should  give  notice  in  writing  to  the 
lessor,  his  heirs  and  assigns,  then  the  lessor,  his 
heirs  or  assigns,  would  accept  1,200Z.  for  the 
purchase  of  the  fee  simple,  and  on  receipt  thereof 
would  convey  the  fee  simple  to  the  lessee,  his 
heirs  or  assigns,  or  as  he  or  they  should  direct. 
The  lessee  died  intestate,  and  nearly  twenty 
years  after  his  death,  his  heir,  who  was  also  ad- 
ministrator of  his  personal  estate,  called  on  the 
devisee  of  the  lessor  to  convey  the  fee  simple  to 
him  in  accordance  with  the  covenant,  and  a 
conveyance  was  executed  accordingly.  The  heir 
afterwards  contracted  to  sell  part  of  the  property 
thus  conveyed  to  him: — Held,  that  the  option  to 
purchase  was  attached  to  the  lease  and  passed 
with  it ;  that  it  consequently  passed  as  part  of 
the  lessee's  personal  estate  to  the  administrator, 
and  that  the  administrator  could  not  make  a 
good  title  to  the  purchaser,  unless  the  next-of- 
kin  of  the  lessee  would  concur  in  the  sale. 
Adams  and  Kensington  Vestry,  In  re,  27  Ch.  D. 
394  ;  54  L.  J.,  Ch.  87 ;  51  L.  T.  382 ;  32  W.  B. 
883— C.  A. 

To  Employ  Particular  Person  to  draw  As- 
signments and  Underleases  —  Assignment  of 
Underlease.] — A  lease  granted  by  the  warden 
and  commonalty  of  the  Mercers'  Company  con- 
tained a  covenant  that  on  the  assignment  of  the 
lease  or  the  grant  of  any  underlease  thereunder, 
the  clerk  to  the  company  should  be  employed  or 
a  fine  of  52.  be  paid.  The  purchaser  from  an 
underle8see  of  his  underlease  raised  the  objection 
that  the  assignment  should  be  prepared  by  the 
clerk  to  the  Mercers'  Company  or  the  penalty 
paid  : — Held,  that  the  objection  was  untenable 
as  the  covenant  did  not  apply  to  the  assignment 
of  an  underlease.  Collett  v.  Young,  33  W.  R. 
543 — North,  J.  Cp.  Haywood  v.  SUber,  ante, 
col.  1076. 

Hot  to  erect  Buildings  —  Hoardings.] — The 
erection  of  wooden  hoardings  for  the  purpose  of 
advertisement  fastened  to  the  demised  premises 


constitutes  a  breach  of  a  covenant  not  to  "  erect 
or  make  any  other  building,  or  erection,  on  any 
part  of  the  demised  premises."  Poeoeh  v.  Oilham, 
1  C.  &  B.  104— Mathew,  J. 

Publio-house  —  Covenant  to  take  Beer  from 
Lessors— Seduction  of  Bent— Penalty.]— The 
lease  of  a  public-house  contained  a  covenant 
that  the  lessee  and  his  assigns  would,  during 
the  term,  purchase  all  beer  required  for  the 
business  from  the  lessors,  a  proviso  for  re-entry 
on  non-payment  of  rent,  or  non-performance  of 
the  covenants,  and  a  provision  for  reduction  of 
the  rent  so  long  as  the  lessee  should  purchase 
beer  from  the  lessors : — Held,  that  the  covenant 
to  purchase  beer  was  an  absolute  one,  and  that 
the  lessee  had  not  the  alternative  of  dealing 
with  a  rival  brewer  and  paying  the  unreduced 
rent.  Hanbwry  v.  Otindy,  68  L.  T.  155 — Stir- 
ling, J. 

To  become  void  on  Bankruptcy  of  Tenant- 
Election  of  Landlord.] — See  post,  coL  1101. 


IV.  BKHT. 
1.  BIGHTS  AND  LIABILITIES. 

Hon-execution  of  Lease  by  Lessor — Assign- 
ment before  Accrual  of  Bent  due.] — In  March, 
1884,  a  lease  from  the  plaintiff  to  the  defendants, 
of  premises  at  the  yearly  rent  of  601,,  and  con- 
taining a  covenant  to  pay  such  rent,  was 
executed  by  the  defendants,  but  not  by  the 
plaintiff,  in  whose  possession  the  document 
remained.  The  defendants  went  into  pos- 
session under  the  lease,  and  paid  two  quarters' 
rent  up  to  the  29th  September,  1884.  The 
defendants  afterwards  proposed  to  surrender 
the  lease,  or  to  assign  their  interest  in  it  to  one 
P.,  and  that  he  should  be  accepted  as  tenant  in 
their  stead,  and  that  they  should  be  discharged 
from  further  liability  under  the  lease.  Both 
these  propositions  were  rejected  by  the  plaintiff. 
It  was,  however,  proposed  and  agreed  to  between 
the  plaintiff  and  defendants  that  the  lease  should 
be  altered  by  making  the  rent  payable  in 
advance,  and  it  was  re-engrossed,  expressed  to 
bear  date  the  18th  October,  1884,  and  executed 
by  the  defendants  on  the  11th  December,  1884, 
on  which  day  they  executed  an  assignment  of  it 
to  P.,  who  paid  rent  up  to  the  25th  March,  1885. 
The  plaintiff  did  not  execute  the  lease  till  the 
26th  April,  1886,  when  he  executed  it  in  the 
absence  of  the  defendants,  and  the  lease  re- 
mained throughout  in  the  plaintiffs  possession. 
In  an  action  to  recover  one  year's  rent,  up  to 
the  25th  March,  1886,  sued  for  upon  the  cove- 
nants in  the  lease  of  the  18th  October,  1886,  and 
in  the  alternative  upon  a  yearly  tenancy,  the 
jury  found  that  the  plaintiff  had  not  agreed  to 
discharge  the  defendants  from  rent  to  accrue 
after  the  assignment  to  P.,  and  that  the  altera- 
tion in  the  lease,  making  the  rent  payable  in 
advance,  had  been  made  with  P.'s  consent  The 
judge  at  the  trial  thereupon  directed  a  verdict 
for  the  plaintiff :— Held,  that  the  direction  was 
right  Bdbington  v.  O'Connor,  20  L.  B.,  Ir.  946 
— Q.  B.  D. 

Apportionment]— Bent  as  between  landlord 
and  tenant  is  apportionable  under  the  Apportion- 


1093 


LANDLORD    AND    TENANT— Rent. 


1094 


ment  Act,  1870.    Hartcuv  v.  Bell,  1  0.  &  E.  19 
— Manisty,  J.    Affirmed  m  C.  A. 

Eviction.] — A  landlord  who  has  wrong- 
fully evicted  his  tenant  between  two  quarter 
days  is  not  entitled  to  the  apportioned  rent  up 
to  the  day  of  eviction  under  the  Apportionment 
Act,  1870.  Clapkam  v.  Draper,  1  C.  &  E.  484— 
Mathew,  J. 

Action  for  Loss  of  Sent — Grantee  of  Bill  of 
Sals  removing  Goods — Consent  of  Grantor.] — 
Tbe  Bills  of  Sale  Act  (1878)  Amendment  Act, 
1882  (46  &  46  Vict  c.  43),  s.  18,  which  provides 
that  all  chattels  seized  under  a  bill  of  sale  shall 
remain  on  the  premises  where  they  were  so 
seised  for  five  clear  days  after  seizure,  is  for  the 
benefit  of  grantors  only.  Where,  therefore, 
goods  are  seized  and  removed  by  the  grantee, 
with  the  grantor's  consent,  within  such  period  of 
five  days,  the  grantor's  landlord  has  no  right  of 
action  against  the  grantee  for  loss  of  rent  owing 
to  such  removal.  Lane  v.  Tyler,  56  L.  J.,  Q.  B. 
461-D. 

liability  of  Sheriff— Removal  after  Hotioe  of 
Claim.] — In  an  action  under  8  Anne,  c.  14,  s.  1, 
against  the  sheriff  for  removing  goods  taken  in 
execution  without  paying  the  landlord  a  year's 
rent,  the  measure  of  damages  is  prima  facie  the 
amount  of  rent  due,  but  it  is  competent  to  the 
sheriff  to  prove  in  mitigation  of  damages  that 
the  value  of  the  goods  removed  was  less  than 
the  amount  of  rent  due.  Thomas  v.  Mirehouse, 
19  Q.  B.  D.  563  ;  56  L.  J.,  Q.  B.  658  ;  86  W.  R. 
104-D. 

In  1881  the  plaintiff  carried  a  resolution  under 
tiie  arrangement  sections  of  the  Bankruptcy 
(Ireland)  Act,  1857,  for  a  composition  with  his 
creditors,  it  being  required  by  the  resolution 
that  the  plaintiffs  estate  and  effects  should  vest 
in  the  official  assignees  and  one  H.,  as  a  security 
for  the  creditors,  upon  trust,  in  default  in  pay- 
ment of  the  composition,  to  apply  to  realize  the 
estate.  Afterwards,  and  before  tbe  composition 
had  been  carried  out  or  the  plaintiff  had  obtained 
any  certificate,  the  plaintiff  by  lease,  dated  the 
13th  April,  1883,  demised  certain  premises  to  T. 
Goods  of  T.  in  these  premises  were  seized  under 
a  fi.  fa.  and  a  quarter  s  rent  then  due  under  the 
lease  was  claimed  from  the  sheriff  by  the  plaintiff, 
and  by  the  official  assignees  and  H.  The  sheriff 
paid  the  official  assignees  and  H.,  and  sold  tbe 
goods.  In  an  action  by  the  plaintiff  against  the 
sheriff  for  allowing  the  goods  to  be  removed 
without  satisfying  the  plaintiff,  the  above  facts 
bring  stated  in  the  pleadings  : — Held,  that  the 
plaintiff  was  entitled  to  maintain  the  action. 
to**n  v.  Moore,  16  L.  R.,  Ir.  181— Ex.  D. 

Eotiee  to  Execution  Creditor— Bill  given 

*7  Execution  Debtor  and  Third  Party  for  Arrears.] 
—In  an  action  against  a  sheriff  for  abandoning 
*  seizure,  it  appeared  that  after  seizure  the 
sheriff  learned  that  a  year's  rent  was  due  to  the 
landlord,  and  withdrew,  without  giving  notice 
to  the  execution  creditor  that  the  rent  was  due  ; 
that  a  hill  of  exchange,  still  current,  accepted  by 
a  third  party,  had  been  given  to  the  landlord  for 
s  nun  equal  to  a  year's  rent,  and  that  the  value 
of  the  goods  seized  was  less  than  a  year's  rent. 
The  only  evidence  given  as  to  the  bill  of  exchange 
"was  that  of  the  landlord's  agent,  who  deposed 
that  he  took  it  as  a  collateral  security  for  the  rent, 


and  that  there  was  no  contract  binding  him  not 
to  sue.  No  question  as  to  any  such  contract  was 
asked  by  the  plaintiff  to  be  submitted  to  the 
jury  : — Held,  that  the  currency  of  the  bill  did 
not  exonerate  the  sheriff  from  responsibility  to 
the  landlord,  under  the  Statute  of  9  Anne,  c  8, 
8. 1 ;  and  that  there  is  no  legal  obligation  upon 
a  sheriff  to  give  the  execution  creditor  notice  of 
a  landlord's  claim  for  rent.  Davidson  v.  Allen, 
20  L.  R.,  Ir.  16— Q.  B.  D. 

Execution— Goods  in  Cuatodift  Legis.] — On  the 

11th  of  March  the  sheriff  seized  under  a  fi.  fa. 
for  an  amount  exceeding  20Z.  goods  and  chattels 
of  a  tenant  upon  premises  held  upon  lease,  the 
rent  of  which  accrued  due  on  the  usual  quarter- 
days.  On  the  17th  of  March  the  goods  were  sold 
by  the  sheriff  by  private  sale,  and  the  sheriff 
went  out  of  possession.  On  the  23rd  of  March  a 
bankruptcy  petition  founded  on  the  seizure  and 
sale  was  presented  against  the  tenant,  upon 
which  he  was  on  the  5th  of  May  adjudicated 
bankrupt.  On  the  10th  of  April  the  purchaser 
from  the  sheriff  removed  the  goods.  On  the 
15th  of  April  the  landlord  gave  notice  to  the 
sheriff  requiring  payment,  under  8  Anne,  c.  14, 
of  two  quarters'  rent,  due  on  the  25th  December 
and  the  25th  of  March  preceding.  The  sheriff 
paid  the  proceeds  of  the  sale  to  the  trustee  of 
the  bankrupt's  estate  : — Held,  that  the  landlord 
was  not  entitled  to  payment  by  the  trustee  in 
bankruptcy  of  the  rents,  as  he  might  have 
distrained  between  the  17th  of  March  and  the 
10th  of  April ;  and  that  he  was  not  entitled  to 
payment  of  the  quarter's  rent  due  on  the  25th  of 
March,  as  the  rent  was  not  due  at  the  time  the 
goods  were  seized.  Pollen  Trustees,  Ex  parte, 
Davis,  In  re,  55  L.  J.,  Q.  B.  217 ;  64  L.  T.  304  ; 
84  W.  R.  442  ;  3  M.  B.  R.  27— Cave,  J. 

The  purchaser  from  the  sheriff  is  bound  to 
remove  the  goods  within  a  reasonable  time.  If 
he  leaves  the  goods  on  the  demised  premises  for 
his  own  convenience  the  landlord  can  distrain 
on  them.    lb. 

Acceptance  of;  whether  a  Waiver  of  Breach  of 
Covenant] — See  Cronin  v.  Rogers,  ante,  col. 
1081. 

What  Arrears — Insolvent  Estate— Adminis- 
tration.]— Upon  the  construction  of  88.  42  and 
125  of  the  Bankruptcy  Act,  1883,  an  order  ob- 
tained in  the  Chancery  Division  by  a  creditor 
for  administration  of  a  deceased  debtor's  estate, 
not  followed  by  any  proceedings  in  bankruptcy, 
is  not  equivalent  to  or  included  in  the  term 
"  order  of  adjudication  "  (s.  42)  so  as  to  limit  the 
power  of  the  landlord,  or  other  person  to  whom 
rent  is  due  from  the  deceased  person's  estate,  to 
recover  by  distress  one  year's  rent  only  accrued 
due  prior  to  the  date  of  the  administration  order. 
Fryman* »  Estate,  In  re,  Fryman  v.  Fryman,  38 
Ch.  D.  468  ;  57  L.  J.,  Ch.  862 ;  58  L.  T.  872 ; 
36  W.  R.  631— Chitty,  J. 

Injunction  to  Restrain  Distribution  of  Assets 
of  Company.] — See  ante,  col.  428. 

Liability  of  Lessee  after  Assignment] — See 
post,  col.  1105. 

Liability  of  Executor.]— See  Exbctttor  aitd 
Adminibtbatob,  II.  1. 

N  N    2 


1 


1095 


LANDLORD    AND    TENANT— Rent. 


1096 


Bight  to  Becover  Bant  duo — Surrender  by 
Operation  of  Law.] — The  right  to  recover  rent 
accrued  due,  and  which  has  been  reserved  on  a 
parol  demise,  is  not  extinguished  by  a  surrender 
of  the  term  by  operation  of  law,  notwithstanding 
the  absence  of  a  personal  covenant  by  the  tenant 
to  pay  such  rent,  but  can  be  enforced  by  an 
action  for  the  use  and  occupation  of  the  premises 
demised,  under  the  provisions  of  s.  14  of  11  Geo. 
2,  c.  19.  Shaw  v.  Lomas,  59  L.  T.  477  ;  52  J.  P. 
821— D. 


Agreement  for  Surrender  between  Lessor 


and  Assignee,  saving  Bights  against  Lessee.] — 
Where  a  lessor  agrees  in  writing  with  an  assignee 
of  the  lease  to  accept  a  surrender  without 
prejudice  to  his  rights  against  the  original  lessee, 
and  takes  actual  or  constructive  possession  of 
the  premises,  there  is  a  surrender  of  the  lease  by 
operation  of  law,  and  the  lessor  is  not  entitled 
to  subsequent  rent  from  the  original  lessee. 
Clement*  v.  Richardson,  22  L.  B.,  Ir.  535— 
Q.  B.  D. 

Action  for  Bent  by  Lessee  of  Furnished  House 
unfit  for  Occupation.]—^  Bird  v.  OrevUle 
(Lord),  post,  coL  1110. 

Estoppel  by  Payment  of  Bent.]—  See  Carlton 
v.  Bowcoek,  poet,  col.  1105. 


2.  DISTRESS, 
a.  In  General. 

Distraining  for  Bent,  in  ease  of  Bankruptcy  or 
Winding-up.]— See  Bankruptcy,  XL  2— Com- 
pany, XI.  6. 

Attornment — Payment  of  Bent  by  Assignee.] 
— See  Hazeldine  v.  Heaton,  post,  col.  1105. 

Moneys  due  from  Tenant  to  Landlord  for 
Goods  supplied— Bill  of  Bale.]—  See  Pulbrooh  v. 
Ashby,  ante,  col.  229. 

Entry  by  raising  Window  partly  open.]— 
Entry  into  a  house  for  the  purpose  of  distraining 
may  lawfully  be  made  by  further  opening  a 
window  which  is  partly  open.  Crabtree  v. 
Robinson,  15  Q.  B.  D.  312  ;  54  L.  J.,  Q.  B.  544  ; 
33  W.  B.  936  ;  50  J.  P.  70-D. 

By  Mortgagor  in  his  own  Hame.] — A  mort- 
gagor in  possession  has,  in  the  absence  of  inter- 
ference by  the  mortgagee,  an  implied  authority 
from  the  mortgagee  to  distrain  upon  the  tenant 
of  the  mortgaged  property  for  the  rent  due  in 
respect  thereof  ;  and,  although  it  may  be  neces- 
sary for  the  mortgagor  to  justify  the  distress  as 
bailiff  of  the  mortgagee,  it  is  not  necessary  that 
the  distress  should  be  made  in  the  mortgagee's 
name.  Reeoe  v.  Strousbera,  54  L.  T.  133  ;  50 
J.  P.  292— D. 

Evidence  of  Value  of  Goods.]  —  The  price 
realised  at  a  sale  by  auction  of  goods  seized  under 
a  distress  is  prima  facie  evidence  of  their  value. 
Rapley  v.  Taylor,  1  C.  &  E.  150— Cave,  J. 

Liability  of  Landlord— Wrongful  Aet  of  Bailiff 
— Liability  of  Bailiff  to  compensate  Landlord.] 
The  defendant  was  employed  by  the  plaintiff  to 
levy  a  distress  for  rent  on  the  goods  of  the 


plaintiff's  tenant  for  152.  The  defendant  realised 
20/.  11*.,  and  deducted  67. 1*.  for  the  costs  and 
charges  of  distress,  which  was  more  than  is 
allowed  by  57  Geo.  3,  c.  93  ;  the  tenant  claimed 
damages  from  the  plaintiff  for  the  excessive 
distress,  and  the  plaintiff  paid  him  62.  1*.  :— 
Held,  that  the  plaintiff  was  entitled  to  recover 
from  the  defendant  the  amount  the  plaintiff  had 
paid  the  tenant  in  satisfaction  of  his  claim  for 
excessive  distress.  Meg  am  v.  Mapleton,  49  L.  T. 
744  ;  82  W.  B.  318— D. 

Excessive  or  Illegal  Distress— With- 
drawal.]—On  the  1st  September,  1882,  W.  dis- 
trained for  82.  rent  due  to  him  from  T.  who  held 
three  rooms  under  him  at  the  weekly  rent  of 
10».  T.  had  underlet  one  of  the  rooms  at  the 
weekly  rent  of  3#.  6<Z.  (none  of  which  was  in 
arrear)  to  the  plaintiff,  who  claimed  the  goods 
seized  as  being  her  sole  property,  and  on  the  oth 
gave  W.  the  proper  notice  with  a  written  declara- 
tion and  inventory  in  the  form  required  by  a  1 
of  the  Lodgers*  Goods  Protection  Act,  1871  (34 
&  35  Vict.  c.  79).  W.,  in  consequence  of  this 
claim  and  of  his  immediate  tenant  T.  paying  him 
12.  on  account  of  the  rent,  and  engaging  to  pay 
the  remaining  71.  by  weekly  instalments  of  10f.r 
withdrew  the  distress.  On  the  21st  of  September 
two  more  weeks'  rent  having  become  due  from 
T.  and  he  having  failed  to  pay  any  of  the  instal- 
ments as  agreed,  W.  again  distrained  on  the  same 
goods  for  82.,  being  11.  of  the  rent  for  which  the 
first  distress  was  put  in  and  12.  for  the  two  weeks' 
subsequently  accruing  rent  No  fresh  declara- 
tion and  inventory  having  been  served  upon  him 
by  the  plaintiff,  W.  caused  the  goods  to  be  carried 
away  and  sold.  At  the  sale  they  realised  51.  11*. 
In  an  action  at  the  suit  of  the  lodger  for  wrong- 
fully breaking  and  entering  the  premises  and  con- 
verting and  selling  her  goods : — Held,  first,  that 
as  between  the  defendant  and  his  immediate 
tenant,  the  distress  on  the  21st  of  September  was 
not  wrongful  or  illegal,  but  at  the  most  excessive, 
and  therefore  not  the  subject  of  an  action  in  the 
absence  of  an  allegation  and  proof  of  special 
damage ;  secondly,  that  the  declaration  and  in- 
ventory served  on  the  5th  of  September  were  not 
applicable  to  the  distress  levied  on  the  21st,  and 
consequently  that  the  plaintiff  could  not  avail 
herself  of  the  benefit  of  the  Lodgers'  Goods 
Protection  Act,  1871.  Thwaites  v.  Wilding,  12 
Q.  B.  D.  4  ;  53  L.  J.,  Q.B.1;  49  L.  T.  396  ;  32 
W.  R.  80  ;  48  J.  P.  100— C.  A. 


Sale  of  Distress  before  Expiration  of  Five 


Days.  ]  —  A  landlord,  having  on  the  17th  of 
October  distrained  for  rent  goods  of  his  tenant's 
lodger  upon  the  demised  premises,  sold  the  same 
on  the  22nd,  i.e.,  before  the  expiration  of  five 
clear  days  from  the  distress,  contrary  to  thepro- 
visions  of  2  Will.  &  M.  sees.  1,  c.  6,  s.  2  :— Held, 
that  an  action  was  maintainable  by  the  lodger 
against  the  landlord  for  so  selling  his  goods. 
Sharp  v.  Fowle,  12  Q.  B.  D.  385  ;  53  L.  J.,  Q. 
B.  309  ;  50  L.  T.  758  ;  32  W.  R.  639  ;  48  J.  P. 
680— D. 


b.    What  roods  may  be  8eiaed. 

Lodgers1  Goods — Sufficiency  of  Declaration-] 

— By  8. 1  of  the  Lodgers'  Goods  Protection  Act, 
1871,  if  any  superior  landlord  shall  levy  distress 
on  any  goods  of  any  lodger  for  arrears  of  root 
due  to  such  superior  landlord  by  his  immediate 


1097      LANDLORD  AND   TENANT— Termination  of  Tenancy.       1098 

or  delivered  to  the  trader.  A  shipbuilder  con- 
tracted to  build  a  ship  on  premises  which  he 
held  as  tenant  to  the  defendants  ;  the  ship  was 
to  be  paid  for  by  instalments  at  certain  stages  of 
the  work.  After  the  ship  had  been  partly  paid 
for,  it  was  seized  by  the  defendants  as  a  distress 
for  rent  due  from  the  builder.  The  person  for 
whom  the  ship  was  being  built  paid  the  rent 
under  protest,  and  sued  to  recover  the  amount : 
— Held,  that  assuming  the  property  in  the  ship 
to  have  passed  to  the  plaintiff  under  the  con- 
tract, still  the  ship,  not  having  been  sent  or 
delivered  to  the  builder,  was  liable  to  distress, 
and  the  plaintiff  was  not  entitled  to  recover. 
Clarke  v.  Millwall  Bock  Company,  17  Q.  B.  D. 
494  ;  55  L.  J.,  Q.  B.  378  ;  54  L.  T.  814  ;  34  W.  R. 
698  ;  51  J.  P.  5— C.  A. 


tenant,  such  lodger  may  serve  such  superior 
landlord  with'a  declaration  in  writing  made  by 
mch  lodger  setting  forth  (inter  alia)  "  whether 
any  and  what  rent  is  due,  and  for  what  period, 
from  such  lodger  to  his  immediate  landlord  "  : 
—Held,  that  if  no  rent  is  in  fact  due  from 
the  lodger  to  his  immediate  landlord,  the 
declaration  need  not  state  that  fact ;  and  also 
that  such  declaration  need  not  state  that  the 
penou  by  whom  it  is  made  is  a  lodger.  Harris, 
B*  parte,  16  Q.  B.  D.  130 ;  55  L.  J.,  M.  C.  24  ; 
58  L.  T.  656 ;  34  W.  R.  132  ;  50  J.  P.  164— 
C.A. 

Second   Distress   after    Withdrawal— 

Declaration  and  Inventory  on  First  Distress.]— 
See  Tkwaite*  v.  Wilding,  supra. 

"Lodger,"  who  if — Occupation  for  Busi- 
ness Purposes.] — The  appellant  occupied  the 
first  floor  and  basement  of  premises  at  a  yearly 
rent,  carrying  on  the  business  of  a  publisher 
there,  hut  sleeping  and  residing  elsewhere. 
He  had  no  key  of  the  outer  door,  which  was 
under  the  control  of  his  immediate  landlord, 
who  admitted  him  every  morning: — Held,  that 
the  appellant  was  not  a  "  lodger  "  within  the 
meaning  of  b.  1  of  the  Lodgers'  Goods  Protection 
Act,  1871.  Heawood  v.  Bone,  13  Q.  B.  D.  179  ; 
51  L.  T.  125  ;  32  W.  R.  752  ;  48  J.  P.  710— D. 

See  Store*  Lent  on  Hire.}— See  Gas  and  Gas 
Company. 

Distress  under  Agricultural  Holdings  Act.] — 
&e  post,  cola.  1108, 1109. 

lolling  Stock  —  "  Work  "]  —  A  locomotive 
engine,  which  was  hired  by  a  railway  contractor 
from  the  respondents,  was  seized  under  a 
distress  for  rent  due  from  the  contractor  to 
the  appellants.  At  the  time  the  engine  was 
seised  it  was  standing  in  a  shed  which  the  con- 
tractor rented  from  the  appellant,  and  which 
was  connected  by  a  siding  with  the  railway : — 
Held,  that  the  engine  was  rolling  stock  in  a 
*' work"  within  the  meaning  of  s.  8  of  the 
Railway  Rolling  Stock  Protection  Act,  1872,  and 
was  therefore  not  liable  to  distress  for  rent  pay- 
able by  the  tenant  of  the  work.  The  "  work " 
in  a.  3  means  any  establishment  or  place,  used 
for  the  purpose  of  trade  or  manufacture,  which 
is  connected  with  a  line  of  railway  by  sidings 
along  which  the  rolling  stock  may  be  propelled. 
Euten  Estate  Company  v.  Western  Waggon 
Cmpany,  54  L.  T.  735  ;  50  J.  P.  790— D. 


Public  Trade."]  —Where an  agent 
under  an  agreement  with  a  firm  of  carpet 
manufacturers  took  premises,  and  put  nis 
principal's  name  outside  as  well  as  his  own, 
and  was  entitled  to  carry  on  other  agency  busi- 
ness, but  waa  in  fact  agent  for  only  one  other 
firm: — Held,  that  the  agent  was  not  carrying  on  a 
"  public  trade  "  so  as  to  exempt  his  principal's 
goods  on  his  premises  from  distress.  Tapling  v. 
Waten,  1  C.  &  B.  99— Cave,  J. 


Things  delivered  to  a  Person  Exercising  a 
Trade.] —  Goods  belonging  to  a  third  party 
which  are  on  the  premises  of  a  person  exercising 
a  public  trade  for  the  purpose  of  being  dealt 
with  in  the  way  of  such  trade,  are  not  exempt 
from  distress  for  rent,  unless  they  have  been  sent 


Properly  of  Third  Persons— Goods  wrongfully 
removed.] — A  landlord  cannot  distrain  upon  the 
goods  of  third  persons  brought  by  himself  on  to 
the  demised  premises  without  the  authority  of 
the  third  person,  even  though  the  goods  had 
been  originally  placed  on  the  premises  by  the 
authority  of  the  third  person,  and  wrongfully 
removed  by  some  one  else.  Paton  v.  Carter,  1 C. 
&  B.  183— Cave,  J. 

Fraudulent  Removal  of  Goods  after  Sent  has 
become  due — Seinre  of  Goods  after  Expiration 
of  Tenancy.]— A  landlord  is  not  justified,  under 
1 1  Geo.  2,  c.  19,  s.  1,  in  following  and  seizing,  after 
the  expiration  of  the  tenancy  and  after  the 
tenant  nas  given  up  possession,  goods  which  have 
been  fraudulently  removed  from  the  demised 
premises  for  the  purpose  of  defeating  the  land- 
lord's right  to  distrain  for  the  rent,  for  that 
statute  applies  only  to  a  case  where  the  landlord 
has  a  right  to  distrain  either  at  common  law  or 
under  8  Anne,  c.  14,  ss.  6  and  7,  and  it  is  a  condi- 
tion of  the  statute  of  Anne,  in  order  to  make  it 
applicable,  that  the  tenant  must  be  in  actual 
possession.  Gray  v.  Stait,  11  Q.  B.  D.  668  ;  52 
L.  J.,  Q.  B.  412  ;  49  L.  T.  288  ;  81  W.  R.  662  ;  48 
J.  P.  86— C.  A. 

Effect  of  Withdrawal  of  Sheriff  by  consent  in 
Interpleader.] — Where  after  the  making  of  an 
interpleader  order  the  sheriff,  with  the  consent 
of  the  execution  creditor  and  the  claimant,  tem- 
porarily withdrew  from  possession : — Held,  that 
the  goods  were  no  longer  in  custodift  legis,  and 
the  landlord  was  entitled  to  distrain  upon  them, 
although  he  knew  that  the  interpleader  proceed- 
ings were  pending.  Cropper  v.  Warner,  1  C.  & 
B.  152— Williams,  J. 


V.    TEBMUTATIOE  OP  TEVAHCT. 

Hotice  to  Quit— Yearly  Tenancy— Continuance 
in  Possession — Implied  creation  of  Hew  Tenancy.] 
— A  yearly  tenancy  was  determined  in  Septem- 
ber, 1877,  by  notice  to  quit,  and  possession  was 
demanded  in  November,  1877 ;  but  the  former 
tenant  continued  in  possession  until  the  present 
action.  After  the  expiration  of  the  notice  to 
quit,  the  landlord  never  accepted  rent,  though 
tendered.  He  told  the  former  tenant  that  he 
was  a  trespasser,  and  frequently  demanded  pos- 
session, but  without  success.  In  an  action  to 
recover  possession,  founded  on  the  notice  to 
quit :— Held,  that  a  verdict  was  properly  directed 


anoy  at  WilL] — See  CoaUtoorth  v.  Johnson,  poet, 
coL  1103. 


Bight  to  determine  Lease  of 
for  Breach  of  Implied  Warranty.] 
y.  Ourrie,  poet,  coL  1110. 


Home 
See  Maclean 


1099       LANDLORD  AND   TENANT— Termination  of  Tenancy.      1100 

for  the  landlord.  Gusack  v.  Farrell,  18  L.  B., 
Ir.  494— C.  P.  D.  Affirmed  20  L.  R.,  Ir.  56— 
C.A. 

Abandonment  of— Yearly  Tenancy— In- 

ereaae  of  Sent  during  Tear  of  Tenancy.]— A 
notice  to  quit  which  is,  during  its  currency, 
abandoned  by  the  consent  of  both  parties,  and 
not  acted  on,  does  not  per  se  put  an  end  to  a 
tenancy  from  year  to  year.  An  increase  of  the 
rent  payable  by  a  yearly  tenant,  by  an  arrange- 
ment during  a  year  of  the  tenancy,  does  not  per 
ae  operate  to  put  an  end  to  the  old  tenancy  and 
create  a  new  one.  Inohiquin  (Lord)  v.  Lyons, 
20  L.  B.,  Ir.  474— C.  A. 

Length   of— Monthly   Tenancy.]  —  By 


agreement  in  writing  the  defendant  became 
a  monthly  tenant  to  the  plaintiffs  (a  firm  of 
brewers),  from  the  1st  July,  1869,  of  certain 
licensed  premises,  at  a  monthly  rent,  payable 
on  the  first  day  of  each  month,  over  ana  above 
all  taxes,  &c.  ;  and  by  another  agreement  in 
writing  of  the  same  date  and  made  between 
the  defendant,  the  plaintiffs,  and  A.,  reciting 
that  the  defendant  had  become  a  monthly  tenant 
of  the  premises,  and  that  the  plaintiffs  had,  at 
the  defendant's  request,  agreed  to  transfer  the 
beer  and  spirit  licences  attached  to  the  premises 
to  A.,  in  whose  name  the  defendant  proposed  to 
carry  on  the  business,  in  consideration  of  the 
sum  of  60/.,  it  was  agreed  that  the  plaintiffs 
should  hold  the  licences  as  security  for  the  said 
sum,  and  that  the  defendant  and  A.  should  deal 
exclusively  with  the  plaintiffs  and  would  keep 
up  the  said  licences.  The  plaintiffs,  on  the  25th 
September,  1884,  served  notice  to  quit  on  the 
1st  November  then  next.  In  an  ejectment  on 
the  notice  to  quit : — Held,  that  the  tenancy  was 
monthly,  and  determined  under  the  contract  by 
the  month's  notice  given.  Beamish  v.  Cox,  16 
L.  R.,  Ir.  270— Q.  B.  D.  Affirmed,  16  L.  &,  Ir. 
458— G.  A. 

— —  Tenant  not  to  be  found — Delivery  at 
demised  Premises.] — A  lease  of  premises  for 
twenty-one  years  contained  a  proviso  that  it 
should  be  lawful  for  the  landlord  or  his  assigns 
to  put  an  end  to  the  demise  at  the  end  of  the 
first  fourteen  years  by  delivering  to  the  tenant 
or  his  assigns  six  calendar  months'  previous 
notice  in  writing  of  his  intention  to  do  so.  In 
an  action  by  the  assignee  of  the  reversion  to  re- 
cover possession  of  the  premises  on  the  ground 
that  the  demise  had  been  duly  determined  by 
notice  under  the  proviso,  it  appeared  that  the 
lessee  had  disappeared  some  years  previously, 
after  having  mortgaged  the  premises  by  way  of 
underlease,  that  bis  address  could  not  be  found, 
and  that  written  notice  to  determine  the  tenancy 
directed  to  him  had  been  sent  to  his  last  known 
address,  and  had  also  been  delivered  to  the  mort- 
gagee and  to  the  occupier  of  the  premises : — 
Held,  that  the  action  could  not  be  maintained, 
as  there  had  been  no  service  of  the  notice  on  the 
lessee,  and  as  he  had  not  assigned  the  premises 
no  other  service  would  satisfy  the  terms  of  the 
proviso.  Hogg  v.  Brooks,  15  Q.  B.  D.  256  :  50 
J.  P.  118—0.  A. 

Agricultural  Holdings  Aotl— See  post, 

col.  1107. 

Possession  under  Agreement  for  Leaae— Ten- 


Custom  of  the  Country — Tenant-right— Tenant 
Abandoning  Lease.]— A  tenant  of  a  farm  from 
year  to  year,  who  was  entitled  to  certain  tenant- 
rights,  took  a  lease  of  the  farm  for  seven  years, 
under  which  he  became  entitled  to  larger  tenant- 
rights  and  allowances.  In  the  middle  of  the 
term,  being  unable  to  pay  the  rent  and  continue 
the  tenancy,  he  left  the  farm,  and,  in  effect, 
abandoned  the  position  of  tenant,  and  did  not 
bring  an  ejectment  against  his  landlord  who 
was  in  possession  under  a  distress  for  rent,  and 
who  remained,  at  the  tenant's  request,  in  posses- 
sion after  the  distress  was  satisfied.  No  new 
agreement  was  made  as  to  the  tenant-rights  and 
allowances  : — Held  that,  in  the  absence  of  any 
new  agreement,  the  tenant's  rights  arose  only  at 
the  expiration  of  the  lease  and  on  a  substantial 
performance  by  the  tenant  of  the  covenants 
thereof,  and  that,  as  the  tenant  had  in  effect 
abandoned  the  tenancy,  he  was  not  entitled  to 
any  tenant-rights  under  the  lease ;  and  further, 
that  any  tenant-right  he  might  have  had  pre- 
viously while  tenant  from  year  to  year  was  ex- 
tinguished by  his  accepting  the  tenant-rights 
under  the  lease.  England  v.  Shearbum,  52  L.  T. 
22  ;  49  J.  P.  86— D. 

Compensation — Effoct  of  new  Lease.]- A  lease 
provided  that  on  its  termination  the  tenant 
should  receive  compensation  for  unexhausted 
improvements.  At  its  termination  a  new  lease 
of  the  farm  was  granted  to  the  tenant,  nothing 
being  said  about  the  compensation  : — Held,  that 
the  tenant  was  entitled  to  compensation  under 
the  first  lease.  Lane  v.  Mocder,  1  C.  &  B.  548- 
Day,  J. 

Grant  of  Easement  by  Tenant  in  consideration 
of  Payment — Claim  for  Bent  after  Termination  ] 
— The  plaintiff  was  occupier  under  a  lease  of  a 
farm  and  mill.    The  mill  was  supplied  with 
water  which  flowed  along  a  natural  watercourse 
through  the  farm.  The  works  of  the  defendants* 
slate  company  were  contiguous  to  the  farm  ;  and 
the  defendants  sought  to  utilise  the  flow  of  the 
watercourse  for  the  slate  works.    Accordingly, 
in  1871,  the  plaintiff  and  defendants  entered  into 
an  agreement  by  which  the  plaintiff  gave  per- 
mission to  the  defendants  to  use  the  watercourse, 
troughs,  and  landers  on  the  farm,  and  from  time 
to  time  cleanse,  scour,  and  keep  the  same  free 
for  the  passage  of  the  water,  and  from  time  to 
time  keep  in  repair  or  renew  such  watercourse, 
troughs,  or  landers,  the  defendants  having  full 
liberty  of  ingress  or  egress  at  all  times  on  to 
the  said  farm.    The  parties  further  agreed  that 
the  agreement  might  be  terminated  at  the  expi- 
ration of  three  months'  notice,  to  be  given  on 
either  side.    The  rent  reserved  for  the  use  of  the 
water  was  1/.  per  week,  which  was  afterwards 
increased  to  3Z.  per  week.  In  1876  the  plaintiff's 
interest  in  the  farm  expired  by  effluxion  of  tune, 
but  he  retained  his  occupation  of  the  mill.    The 
farm  was  subsequently  leased  by  the  freeholder 
to  one  Darbishire.    The  position  of  the  mill  was 
lower  down  the  stream  or  watercourse  than  the 
farm.    The  defendants  continued  to  pay  the 


1101 


LANDLORD    AND    TENANT— Forfeiture. 


1102 


rent  down  to  April,  1885,  when  Darbishire 
claimed  to  exclude  them  from  that  portion  of 
the  farm  which  was  in  his  occupation.  No 
notice  was  given  by  either  party  to  the  agree- 
ment to  terminate  the  arrangement.  The  de- 
fendants then  refused  to  pay  any  more  rent  to 
the  plaintiff.  The  plaintiff  brought  his  action 
to  recover  seven  quarters1  rent  in  arrear.  The 
action  was  tried,  and  the  point  of  law  was 
reserved  for  further  consideration : — Held,  on 
farther  consideration,  that  under  the  circum- 
stances the  defendants  were  entitled  to  judg- 
ment, because,  though  there  had  not  been  any 
regular  notice  to  terminate  the  agreement 
between  themselves  and  the  plaintiff,  yet  its 
operation  was  limited  in  point  of  time  to  the 
occupation  of  the  farm  by  the  plaintiff,  and  that 
on  the  determination  of  its  occupancy  by  him 
his  right  to  the  rent  for  the  use  of  the  water 
ceased.  Jones  v.  Dorothea  Company,  58  L.  T. 
80 — Denman,  J. 

Tenancy  from  Week  to  Week.]— A  weekly 
tenancy  is  a  re-letting  of  the  premises  by  the 
landlord  at  the  beginning  of  each  successive 
week.  Sandford  v.  Clarke,  21  Q.  B.  D.  398  ;  57 
L.  J.,Q.B.  507;  59  L.  T.  226  ;  57  W.  B.  28  ;  52 
J.  P.  773— D. 

Lessee  of  Part  of  Property — Action  for  Be- 
eovsry  of  Land.] — Where  the  owner  of  the  rever- 
sion of  a  theatre  having  by  an  order  in  a 
winding-up  of  a  company  obtained  the  lease  and 
property  of  the  theatre,  the  lessee  of  property, 
coxes,  and  stalls,  brought  an  action  asking  for 
an  injunction  to  restrain  the  reversioner  from 
preventing  the  plaintiff  having  access  to  his 
boxes  and  stalls: — Held,  that  the  order  in  the 
winding-up  did  not  affect  the  right  of  third 
parties ;  the  defendant  could  only  exclude  the 
plaintiff  by  an  action  for  the  recovery  of  land 
where  third  parties  would  have  notice  and  an 
opportunity  of  appearing.  Leader  v.  Hayes, 
ML.  T.  204— V.-C.  B. 

On  Bankruptcy— Election  of  Landlord.] — 
Where  a  lease  contains  a  proviso  or  condition 
that  on  breach  of  any  of  the  covenants  such 
lease  "  shall  cease,  determine  and  be  void  to  all 
intents  and  purposes  whatsoever,11  such  words 
most  be  construed  to  mean  void  at  the  election 
of  the  lessor.  Thus,  where  a  lease  contained  a 
proviso  to  the  effect  that  if  the  lessee  should 
become  bankrupt  or  insolvent  the  lease  shall 
" cease,  determine  and  be  void,"  and,  the  lessee 
having  become  bankrupt,  the  trustee  in  the 
bankruptcy  rejected  a  proof  put  in  by  the  lessors 
founded  on  such  lease  upon  the  ground  that  on 
the  bankruptcy  the  lease  became  void  : — Held, 
that  such  rejection  was  wrong  and  must  be 
reversed.  Leathersellerst  Company,  Ex  parte, 
Tickle,  In  re,  3  M.  B.  B.  126— Cave,  J. 

On    Tenant    "being   Bankrupt."!  — A 

lease  (executed  in  1880)  of  a  mill  and  warehouse, 
for  twenty-one  years,  contained  a  proviso  that  in 
case  (inter  alia)  the  lessees  should  during  the 
term  be  bankrupts,  or  file  a  petition  in  liqui- 
dation, the  term  should  cease.  After  the  Bank- 
ruptcy Act,  1883,  came  into  operation,  the 
lessees  presented  a  bankruptcy  petition,  and  a 
receiving  order  was  made : — Held,  that  the 
presentation  of  the  petition  caused  a  forfeiture 
of  the  term.    Gould  or  Qoold,  Ex  parte,  Walker, 


In  re,  13  Q.  B.  D.  454  ;  51  L.  T.  368  ;  1  M.  B.  B. 
168— D. 

Surrender— By  Infant.]— See  6fr\ffiths,  In  re, 
ante,  col.  1077. 


Bight  to  recover  Bent] — See  ante,  col. 


1095. 


Merger  of  Term  in  Beversion.  ]—See  Dynevor 
{Lord)  v.  Tennant,  ante,  col.  1078. 


VI.    FOBFETTTTBE. 
1.  IN  WHAT  CASBS. 

Invalid  Hotioe  or  Demand  for  Bent.] — By  an 
agreement  in  writing  dated  the  7th  March,  1884, 
made  between  the  plaintiffs  and  defendants, 
the  defendants  agreed  to  lease  to  the  plaintiffs 
the  advertisement  spaces  on  the  cars  of  the  de- 
fendants running  at  N.  for  three  years,  from 
the  7th  January,  1884,  at  a  rent  of  1202.  a 
year,  payable  quarterly.  The  agreement  pro- 
vided that  the  advertising  boards  and  fittings 
should  be  found  by  the  plaintiffs ;  and  it  con- 
tained a  condition  that  in  the  event  of  default 
by  the  plaintiffs  in  payment  of  any  moneys  due 
under  the  agreement  for  thirty  days  after  de- 
mand in  writing,  the  defendants  should  be  at 
liberty  at  once  to  determine  the  agreement  or 
lease,  and  on  the  determination  thereof  the 
boards  were  to  become  the  property  of  the  de- 
fendants, who  were  to  have  the  option  of  pur- 
chasing the  other  fittings.  The  plaintiffs  usually 
paid  the  rent  upon  the  first  day  of  the  month. 
Upon  the  7th  April,  1885,  the  plaintiffs  not 
having  paid  the  rent  for  the  past  quarter,  the 
defendants  sent  a  written  demand  for  the  pay- 
ment of  30Z.,  "  being  one  quarter's  rent  under 
the  advertising  agreement  due  on  the  1st  met.," 
and  on  the  30th  May,  the  rent  being  still  in 
arrear,  they  wrote  to  the  plaintiffs  determining 
the  agreement :— Held,  that  the  demand  of  7th 
April  being  inaccurate,  was  not  a  demand  on 
which  a  forfeiture  could  be  founded,  and  that 
the  agreement  was  not  properly  determined. 
Jackson  v.  Northampton  Street  Tramways  Co., 
56  L.  T.  91— Stirling,  J. 


Two  Houses  in  same  Lease— Covenant  broken 
as  to  one.] — The  doctrine  established  by  the  case 
of  Darlington  v.  Hamilton  (Kay,  559) — namely, 
that  where  two  houses  are  comprised  in  one 
lease,  and  subject  to  covenants  common  to  both, 
an  under-lessee  of  one  house  is  liable  to  have  his 
underlease  determined  by  re-entry  by  the  original 
lessor  for  breach  of  any  covenant  relating  to  the 
other  house — still  prevails,  and  is  not  affected 
by  8.  14  of  the  Conveyancing  Act,  1881,  which 
merely  protects  a  lessee  or  under-lessee  against 
re-entry  or  forfeiture  by  giving  him  an  oppor- 
tunity of  making  good  any  breach  of  covenant. 
Creswell  v.  Davidson,  56  L.  T.  811— Kay,  J. 


2.  BELIEF   AGAINST. 

Conveyancing  Aet,  1881,  s.  14  — Tenaney 
at  Will— Agreement  for  Lease  for  21  Years- 
Bight  to  Be-enter.]— The  plaintiff  entered  into 
possession  of  a  farm  under  an  agreement  for  a 


1108         LANDLORD    AND    TENANT— Assignment  of  Term.         1104 

notice  stating  the  breach,  bat  not  requiring  him 
to  remedy  it,  or  to  make  compensation,  as  re- 
quired by  a.  14,  sub-8.  l,of  the  Conveyancing 
Act,  1881.  An  application  was  made  by  equit- 
able mortgagees  of  the  property  to  be  relieved 
against  the  forfeiture  on  the  ground  of  this  in- 
formality in  the  notice.  They  offered  to  submit 
to  such  terms  as  the  court  thought  fit : — Held, 
that  no  notice  sufficient  for  the  purposes  of  the 
act  had  been  given,  and  the  equitable  mortgagees 
were  entitled  to  be  relieved  against  the  forfeiture 
on  the  terms  of  their  undertaking  to  complete 
the  buildings  by  a  certain  time,  and,  if  not  so 
completed,  to  re-deliver  possession  of  the  pro- 
perty to  the  lessor,  and  the  lessor  was  ordered  to 
give  immediate  possession  to  the  mortgagees. 
North  London  Freehold  Land  and  House  Company 
v.  Jacques,  49  L.  T.  669 ;  32  W.  K  283  ;  48 
J.  P.  605— V.-C.  B. 


lease  for  twenty-one  years  from  the  defendant. 
Before  any  rent  was  due  or  had  been  paid  the 
landlord  gave  the  plaintiff  notice  to  quit,  and 
turned  him  out  of  possession,  because  he  had 
done  that  which  had  amounted  to  a  breach  of  a 
covenant  contained  in  the  agreement  and  in- 
tended to  be  inserted  in  the  lease.  The  tenant 
brought  an  action  for  trespass : — Held,  that  the 
plaintiff  was  not  entitled  to  recover  ;  that  as  he 
was  in  possession  under  an  agreement  for  a  lease 
for  twenty-one  years  and  had  paid  no  rent  he 
was  only  a  tenant  at  will ;  that  his  landlord 
was  therefore  entitled  so  to  determine  that 
tenancy  ;  and  that  the  tenancy  was  not  subject 
to  or  controlled  by  the  provisions  of  the  Con- 
veyancing Act,  1881  (44  &  45  Vict.  c.  41),  s.  14. 
Coatswortk  v.  Johnson,  55  L.  J.,  Q.  B.  220  ;  54 
L.  T.  520— C.  A. 

Agreement  for  Lease.] — An  agreement 

for  a  lease  is  not  a  lease  within  the  meaning  of 
b.  14  of  the  Conveyancing  and  Law  of  Property 
Act,  1881,  and  therefore  the  terms  of  that  section 
do  not  apply  to  a  mere  tenancy  under  an  agree- 
ment for  a  lease,  where  there  is  no  actual  lease 
in  existence,  nor  any  title  to  specific  performance. 
The  defendant  in  an  action  for  recovery  of  land 
was  in  possession  of  the  premises  as  tenant 
under  an  agreement  for  a  lease,  which  provided 
that  the  lease  to  be  executed  thereunder  should 
contain  (inter  alia)  a  covenant  to  keep  the  pre- 
mises in  repair  and  a  condition  for  re-entry  for 
breach  of  such  covenant.  Bent  had  been  paid 
under  the  agreement,  but  no  lease  had  been 
executed.  The  premises  being  out  of  repair  the 
landlord  brought  the  action  to  recover  them  as 
upon  a  forfeiture.  No  notice  had  been  given 
before  action  under  the  above-mentioned  section  : 
— Held,  that,  there  being  no  lease  in  fact  executed 
or  title  shown  to  a  decree  for  specific  perform- 
ance by  execution  of  a  lease,  the  section  did  not 
apply,  and  the  action  was  maintainable.  Swain 
v.  Ayres,  21  Q.  B.  D.  289  ;  57  L.  J.,  Q.  B.  428  ; 
36  W.  R.  798— C.  A.  Affirming  62  J.  P.  500— 
Charles,  J.    And  see  preceding  case. 

"  Lessee  "  —  Service  of  Hotice.]  —  An 

assignee  of  a  lease  is  a  "  lessee  "  within  the  mean- 
ing of  s.  14,  sub-s.  1 ,  of  the  Conveyancing  Act,  1881. 
A  notice,  under  s.  14,  sub-s.  1,  of  the  Conveyancing 
Act,  1881,  addressed  to  A.  B.  (the  original  lessee), 
and  "  all  others  whom  it  doth  or  may  concern," 
and  served  on  the  persons  in  occupation  of  the 
premises  demised,  is  sufficiently  addressed  to,  and 
validly  served  on,  the  assignee  of  the  lease. 
Oromin  v.  Rogers,  1  C.  &  B.  348 — Denman,  J. 


Tenanoy  determined  by  Bankruptcy.] — 

Where  a  tenant  presents  a  petition  in  bankruptcy 
by  reason  of  which  the  lease  is  determined  : — 
Held,  that  s.  14  of  the  Conveyancing  Act,  1881, 
has  no  application.  Gould  or  Ooold,  Ex  parte, 
Walker,  In  re,  supra. 


Sufficiency  of   Kotioe — Mortgagees- 


Terms.] — A  lessee  of  building  property,  with  a 
covenant  in  his  lease  to  complete  the  buildings 
by  a  certain  date,  failed  to  complete  them 
within  the  required  time.  The  lessor  com- 
menced an  action  to  eject  him,  and,  in  de- 
fault of  his  appearance,  signed  judgment  and 
issued  a  writ  of  possession.  The  lessor,  before 
commencing  his  action,  served  the  lessee  with  a 


Dilapidated  Condition  of  Premises.]— 

In  an  action  for  the  recovery  of  land  for  breach  of 
a  covenant  to  repair,  relief  will  be  granted  under 
the  Conveyancing  Act,  1881,  although  the  pre- 
mises are  in  a  very  dilapidated  condition,  and 
the  relief  was  not  claimed  in  the  pleadings. 
Mitehuon  v.  Thompson,  1  C.  &  E.  72— Cole- 
ridge, C.  J. 

Re-entry  for  Breach  of  Covenant  and  non- 
payment of  Sent] — Where  a  person  has  gained 
possession  of  property,  but  has  no  title  to  it, 
being  in  fact  a  trespasser,  the  rightful  owner  is 
entitled  to  use  force  in  ejecting  him,  so  long  as 
he  does  him  no  personal  injury.  Lessors  had 
not,  before  re-entering  upon  premises  for  non- 
payment of  rent  and  breach  of  covenant,  served 
upon  the  tenant  the  notice  required  by  s.  14, 
sub-s.  1,  of  the  Conveyancing  Act,  1881,  speci- 
fying the  breach  of  covenant  complained  of  :— 
Held,  that  by  reason  of  sub-s.  8  of  the  section, 
its  provisions  did  not  affect  the  law  relating  to 
re-entry  for  non-payment  of  rent ;  and  under 
sub-s.  2  the  court  had  a  discretion  to  refuse 
relief  against  re-entry  for  breach  of  covenant 
on  the  ground  of  want  of  notice,  and  the  cir- 
cumstances of  this  case  were  such  that  the  court 
would  refuse  such  relief.  Scott  v.  Brown,  51 
L.  T.  746— Kay,  J. 

Common  Law  Procedure  Act — Ken-Payment  of 
Bent — Costs.  J — Where  in  an  action  of  ejectment 
upon  a  forfeiture  by  non-payment  of  rent  the 
plaintiff  obtains  judgment  but  without  costs, 
the  defendant  may  obtain  relief  from  the  for- 
feiture under  the  Common  Law  Procedure  Act, 
1860  (23  &  24  Vict.  c.  126),  s.  1,  without  being 
required  to  pay  the  plaintiff  any  costs  other 
than  those  of  the  summons  for  relief.  Croft 
v.  London  and  County  Banking  Company,  14 
Q.  B.  D.  347  ;  54  L.  J.,  Q.  B.  277 ;  52  L.  T.  874; 
49  J.  P.  356— C.  A. 


VII.  ASSIGlHCEjrT  OF  TERM. 


Liability  of  Exeoutor   *— *ff*»"»ff 

Bent.]—£te  ante,  col.  787. 


Lease  fer 


Payments  by  Assignee— Attornment]— When 
a  lease  has  been  assigned  in  consideration  of  cer- 
tain quarterly  payments  during  the  remainder  of 


1105 


LANDLORD    AND    TENANT— Assignment  of  Term.         1106 


the  term,  the  assignee  by  making  one  such  pay- 
ment does  not  attorn  to  the  assignor  so  as  to 
give  him  a  right  of  distress  for  sums  subse- 
quently becoming  due.  Haseldine  v.  Heaton,  1 
C.U  40— Stephen,  J. 

Assignee  of  Reversion— Estoppel  by  Payment 
of  Bent — Jus  tertii] — Where  a  person  claiming 
to  be  assignee  of  the  reversion  receives  rent 
from  the  tenant  by  fraud  or  misrepresentation, 
such  payment  is  no  evidence  of  title  ;  bat  where 
there  is  no  fraud  or  misrepresentation  such  pay- 
ment is  prima  facie  evidence  of  title  and  the 
tenant  can  only  defeat  that  title  by  showing  that 
he  paid  the  rent  in  ignorance  of  the  true  state 
of  the  title,  and  that  some  third  person  is  the 
real  assignee  of  the  reversion  and  entitled  to 
maintain  ejectment.  Hence,  in  an  action  for  rent 
by  the  alleged  assignee  of  the  reversion,  where 
ient  had  been  paid  by  the  tenant  to  the  agent  of 
the  alleged  assignee,  it  was  held  to  be  no  defence 
for  the  tenant  merely  to  show  that  the  alleged 
assignee  had  no  title  to  the  reversion.  Carlton 
t.  Botoeocky  51  L.  T.  669— Cave,  J. 

torender  by  Assignee  of  Part  of  Premises— 
Covenant  to  pay  Bent — Liability  of  Lessee.] — 
The  plaintiff  demised  a  house  and  premises  for  a 
term  of  years  by  deed  containing  a  covenant  by 
the  lessee  to  pay  the  rent  reserved.  The  lessee 
assigned  the  term,  and  the  assignee  surrendered 
a  small  portion  of  the  premises,  upon  which  was 
a  scullery,  to  the  plaintiff,  who,  in  consideration 
therefor,  paid  the  assignee  2cZ.  and  built  for  him 
a  new  scullery  of  equal  value  upon  another  part 
of  the  premises.  The  rent  apportionable  for  the 
part  surrendered  was  4/.  a  year.  In  an  action 
against  the  lessee  upon  the  covenant  for  a 
quarter's  rent  less  the  sum  apportioned  for  the 
part  surrendered  :  —  Held,  without  deciding 
whether  the  covenant  was  apportionable  or  not, 
that  the  lessee,  by  assigning  his  interest  in  the 
term,  empowered  the  assignee  to  surrender  any 
part  of  the  premises ;  that  therefore  there  had 
not  been  any  eviction  of  the  lessee  by  the 
plaintiff;  that  the  lessee,  notwithstanding  the 
surrender,  was  still  liable  on  the  covenant,  and 
that  the  liability  of  the  lessee  upon  the  covenant' 
after  assignment  was  not  that  of  surety  for  the 
assignee.  Baynton  v.  Morgan,  22  Q.  B.  D.  74  ; 
58  L.  J.,  Q.  B.  139 ;  37  W.  R.  148  ;  53  J.  P.  166 
-C.  A.    Affirming  69  L.  T.  478— D. 

Payment  by  Original  Lessee— Salvage— Charge 
«■  Property.]  —A.,  being  lessee  of  certain  lands 
under  a  lease,  containing  the  ordinary  covenant 
by  him  ae  lessee  for  payment  of  the  rent,  which 
was  payable  weekly,  and  a  condition  of  re-entry 
in  case  of  non-payment,  assigned  his  interest 
under  the  lease  to  B.,  who  covenanted  with  A. 
to  pay  the  rent,  and  to  keep  him  indemnified 
against  it.  B.  mortgaged  the  premises  comprised 
in  the  lease  to  C,  by  way  of  sub-demise.  An 
arrearof  rent  becoming  due,  the  lessor  compelled 
A.,  under  hie  covenant  in  the  lease,  to  pay  the 
amount  in  arrear.  In  an  action  against  B.  and 
the  mortgagee,  A.  sought  for  a  declaration  that 
the  sum  so  paid  by  him  for  rent  was  a  salvage 
payment,  and  was  charged  on  the  premises  in 

E'ority  to  the  mortgage  to  C. : — Held,  that  A. 
3  no  interest  in  the  premises  authorising  him 
to  make  a  salvage  payment,  and  he  had  therefore 
no  lien  on  the  premises  for  the  rent  so  paid  by 


him,  and  that  his  only  remedy  was  a  personal 
one  against  B.  O'Loughlin  v.  Divyer,  13  L.  R., 
Ir.  76— V.  C. 

Covenant  to  Indemnify— Damages — Costs. J — 

Under  a  covenant  to  indemnify  against  all  claims 
in  respect  of  the  covenants  of  a  lease,  costs  pro- 
perly incurred  in  reasonably  defending  an  action 
brought  for  a  breach  of  one  of  the  covenants  are 
recoverable  as  damages.  Murrell  v.  Fysh,  1  C.  & 
E.  80— Williams,  J. 

Bight  of  Assignee  to  Indemnity  from 


Assignor— Dilapidations.] — On  the  dissolution 
of  a  partnership  between  H.  and  R.,  H.  as- 
signed to  R.  all  his  interest  in  two  houses 
belonging  to  the  partnership  held  under  sub- 
leases from  C.  and  D.,  and  R.  covenanted  to  pay 
the  rents  and  observe  the  covenants  and  keep  H. 
indemnified  against  them.  R.'s  executors  sold 
the  houses  to  B.,  and  B.  to  a  company  which 
went  into  liquidation.  The  landlords  C.  and  D. 
thereupon  sued  H.  for  the  rent,  and  he  paid  it 
for  the  whole  of  the  year  1882.  D.  also  made  a 
large  demand  against  H.  for  breaches  of  cove- 
nants to  repair,  but  H.  made  no  payment.  On 
the  15th  of  March,  1883,  D.  assigned  his  rever- 
sion to  H.,  and  in  May,  1883,  H.  acquired  C.'s 
reversion.  In  June,  1883,  H.  bought  the  lease- 
hold interest  in  both  houses  from  the  liquidators 
of  the  company,  and  covenanted  thenceforth  to 
pay  the  rent  and  observe  the  covenants.  H. 
sought  to  prove  against  the  estate  of  R.  for  the 
sums  paid  for  rent,  for  the  rent  payable  at  Lady 
Day,  1883,  on  D.'s  house,  and  for  the  amount  of 
the  dilapidations  in  that  house :— Held,  that  the 
right  of  H.,  under  R.'s  covenant  of  indemnity, 
to  prove  for  the  rents  which  he  had  paid,  was 
not  taken  away  by  his  covenant  in  the  assign- 
ment by  the  liquidators,  which  could  not  be  ex- 
tended to  rents  already  due  and  paid.  Further, 
this  right  was  not  defeated  on  the  ground  that 
the  right  of  R.'s  representatives,  if  they  paid 
rent,  to  recover  it  from  the  owner  of  the  lease 
for  the  time  being,  was  interfered  with  by  the 
assignment  from  the  liquidators  to  H.,  for  that 
this  assignment  could  not  take  away  any  right 
of  action  which  R.'s  executors  might  have  against 
the  persons  entitled  to  the  houses  at  the  end  of 
1882,  and  that  an  assignor  who  pays  rent  has  no 
lien  on  the  term,  and  so  cannot  be  prejudiced  by 
its  subsequent  assignment.  Neither  was  the  right 
defeated  on  the  ground  that  H.  on  paying  the 
rent  became  entitled  to  a  right  of  distress  from 
the  reversioners,  which  he  had  destroyed  by 
taking  an  assignment  of  the  leases,  and  had 
therefore  discharged  the  estate  of  R.  by  releas- 
ing a  remedy  to  the  benefit  of  which  R.  as  a 
surety  was  entitled,  for  that  a  right  of  distress 
is  not  a  security  or  remedy  to  the  benefit  of 
which  a  surety  paying  rent  is  entitled  under  the 
Mercantile  Law  Amendment  Act  (19  &  20  Vict, 
c.  97),  s.  5 :— Held,  therefore,  that  H.  was  en- 
titled to  prove  against  R.'s  estate  for  the  rent 
paid  in  1882  on  both  houses,  and  that  he  was 
entitled  to  prove  for  the  Lady  Day  rent  on  D.'s 
house  ;  but  that  H.  was  not  entitled  to  prove  for 
the  amount  of  dilapidations,  for  that  he  had  sus- 
tained no  damage  by  reason  of  them,  inasmuch 
as  he  bought  the  leases  from  the  liquidators  at  a 
less  price  in  consequence  of  the  breaches  of  the 
covenant  to  repair ;  nor  for  the  Lady  Day  rent  of 
C.'s  house.  MiMcll,  In  re.  ILu**ell  v.  ShooU 
bred,  29  Ch.  D.  264  ;  63  L.  T.  366— C.  A. 


1107     LANDLORD  AND  TENANT— Agricidiwal  Holdings  Act.     1108 


VIII.    AGBICVLTUBAL  HOLDUGS  ACT. 

Hotiee  to  Quit— Half-year'i  Notice  and  Biz 
Months'  Notice,  Distinction  between.] — A  ten- 
ancy under  a  written  agreement  from  year  to 
year  "  until  six  months'  notice  shall  have  been 
given  ....  in  the  usual  way  to  determine  the 
tenancy/1  is  not  one  "  where  a  half-year's  notice 
....  is  by  law  necessary  "  within  the  Agricul- 
tural Holdings  Act,  1883  (46  k  47  Vict  c  61), 
s.  33,  which  therefore  does  not  apply  so  as  to 
render  a  year's  notice  necessary  for  the  deter- 
mination of  the  tenancy.  Barlow  v.  Teal,  15 
Q.  B.  D.  501 ;  54  L.  J.,  Q.  B.  564  ;  54  L.  T.  63  ; 
34  W.  R.  54  ;  50  J.  P.  100— C.  A. 

Action  by  Landlord — Counterclaim  for  Com- 
pensation.]— A  claim  for  compensation  by  a 
tenant  under  the  Agricultural  Holdings  Act, 
1883,  if  disputed,  must  be  referred  to  arbitration 
only,  and  cannot  form  the  subject-matter  of  a 
counterclaim  in  an  action  for  rent  brought  by 
the  landlord  in  the  High  Court.  Gaslight  and 
Coke  Company  v.  Holloway,  52  L.  T.  434  :  49 
J.  P.  344— D. 

A  tenant  of  a  farm,  restrained  by  agreement 
from  selling  the  hay  and  straw  grown  on  the 
farm,  became  bankrupt.  The  trustee  in  bank- 
ruptcy removed,  and  sold  a  quantity  of  the  hay 
in  breach  of  the  agreement  and  then  disclaimed 
the  lease.  The  landlord  sued  the  trustee  for  the 
removal  of  the  hay,  and  the  trustee  counter- 
claimed  for  unexhausted  improvements : — Held, 
that  the  counter-claim  could  not  be  sustained, 
as,  by  the  Agricultural  Holdings  Act,  1883,  s.  8, 
arbitration  is  rendered  compulsory  in  case  of 
disputes  between  landlord  and  tenant.  Schofield 
v.  Hindu,  58  L.  J.,  Q.  B.  147  ;  60  L.  T.  573  ;  37 
W.  R.  157— D. 

Award  giving  Compensation  generally— No 
Items— Validity.]— A  tenant  gave  notice  of 
claim  for  compensation  under  the  Agricultural 
Holdings  (England)  Act,  1883,  and  the  landlord 
gave  notice  to  the  tenant  of  a  counterclaim 
for  dilapidations  and  breaches  of  covenant. 
The  parties  not  agreeing  as  to  the  amounts  pay- 
able under  their  respective  claims,  the  landlord 
gave  the  tenant  notice,  under  the  Agricultural 
Holdings  Act,  1883,  appointing  D.  to  act  on  his 
behalf.  The  tenant  acted  in  the  matter  as  his 
own  referee.  The  referees  did  not  appoint  an 
umpire  before  entering  upon  the  reference,  but, 
differences  having  arisen,  they  appointed  W.  to 
act  as  umpire.  This  appointment  of  the  umpire 
was  in  a  letter  signed  by  both  referees  as  fol- 
lows : — "  We,  the  undersigned,  hereby  appoint 
you  our  umpire  to  settle  all  differences  that  have 
arisen  between  us  in  this  valuation,  which 
relates  to  compensation  for  unexhausted  lime, 
manures,  and  feeding  stuff,  and  counter-claims 
for  dilapidations  and  breaches  of  covenant  on 
both  sides,  under  a  lease,  dated  the  20th  July, 
1880,  and  under  the  Agricultural  Holdings  Act, 
1875  and  1883,  and  we  agree  to  abide  by  your 
decision  In  writing  as  final  and  binding  on  all 
parties."  The  umpire  made  his  award  in  writing 
as  follows :  "  I  do  award  that  the  sum  of  96J.  11*. 
is  payable  by  the  said  Charles  Shrubb  to  the 
said  William  Lee,  balance  in  full  satisfaction  of 
all  claims  made  by  either  party."  The  landlord 
appealed  against  the  award  upon  the  grounds 
(1)  that  it  was  obligatory  that  the  award  should 
have  been  made  under  the  provisions  of   the 


Agricultural  Holdings  (England)  Act,  1883; 
(2)  that  the  award  was  invalid,  because  it 
awarded  a  sum  generally  in  respect  of  claims 
under  the  Agricultural  Holdings  Acts,  1875  and 
1883,  and  of  claims  arising  outside  those  acts, 
without  distinguishing  between  the  two  sets  of 
claims;  (3)  that  the  award  was  bad,  as  it 
awarded  a  sum  generally  for  compensation  and 
did  not,  as  required  by  s.  19  of  the  act,  specify 
(a)  the  several  improvements  in  respect  of 
which  compensation  was  awarded  ;  (b)  the  time 
at  which  each  improvement  was  executed ;  (c) 
the  sum  awarded  in  respect  of  each  improve- 
ment : — Held,  that  there  was  abundant  evidence 
to  warrant  the  conclusion  that  this  was  an 
award  outside  the  Agricultural  Holdings  Act 
altogether,  and  that  it  was  none  the  less  so 
because  it  may  have  included  some  mattes 
which  were  within  the  act;  that  the  refer- 
ence was  in  fact  a  common  law  reference ;  and 
that  the  award  was  final  and  binding  upon  the 
parties.  Shrubb  v.  Lee,  59  L.  T.  376  ;  53  J.  P. 
64— D. 

Compensation  for  Improvements — Hotioe  of 
Claim.] — A  notice  by  a  tenant  in  occupation  of 
a  tenancy  current  at  the  commencement  of  the 
Agricultural  Holdings  Act,  1883,  of  a  claim  for 
compensation  for  improvements  executed  after 
the  commencement  of  the  act,  is  good  if  given 
under  the  Agricultural  Holdings  Act,  1883, 
though  the  compensation  is  to  be  based  upon 
the  principles  of  the  Agricultural  Holdings  Act, 
1875.  The  compensation  for  such  improvements 
is  to  be  calculated  on  the  basis  of  the  Agricultural 
Holdings  Act,  1875,  and  not  of  the  Agricultural 
Holdings  Act,  1883.  Smith  v.  Acock,  53  L.  T. 
230— D. 

Appeal  from  County  Court] — &eante,  coL  558. 

Distress — Ordinary  Course  of  Dealing.J— 
By  s.  44  of  the  Agricultural  Holdings  Act,  1883, 
a  landlord  cannot  distrain  for  rent  which  be- 
came due  more  than  a  year  before  the  distress, 
provided  that,  where  according  to  the  ordinary 
course  of  dealing,  payment  of  the  rent  has  been 
allowed  to  be  deferred  until  the  expiration  of  a 
quarter  or  half-year  after  the  rent  legally  be- 
came due,  for  the  purpose  of  the  section  the 
rent  shall  be  deemed  to  nave  become  due  at  the 
expiration  of  such  quarter  or  half-year,  and  not 
when  it  legally  became  due  : — Held,  that  in  a 
case  within  the  proviso  the  landlord  was  en- 
titled to  distrain  for  rent  then  legally  due,  bat 
not  yet  payable  according  to  the  course  of 
dealing,  and  also  for  rent  which  had  become 
legally  due  more  than  a  year  previously,  but  had 
become  payable  according  to  the  course  of 
dealing  less  than  a  year  previously,  although  the 
total  amount  distrained  for  exceeded  one  year's 
rent.  Bull,  Ex  parte.  Beta,  In  re,  18  Q.  B.  D. 
642  ;  66  L.  J.,  Q.  B.  270 ;  66  L.  T.  571 ;  36  W.R. 
466  ;  51  J.  P.  710  ;  4  M.  B.  R.  94— D. 


Agistment  of  Cattle—"  Lire  Stock  taken 


in  to  be  Fed  at  a  Fair  Prioe."]— Cattle  were 
distrained  while  on  a  holding  pursuant  to  an 
agreement  by  which  the  tenant,  in  consideration 
of  21.,  allowed  the  owner  "  the  exclusive  right  to 
feed  the  grass  on  the  land  for  four  weeks  "  :— 
Held,  that  the  cattle  were  not  "  taken  in  "  by 
the  tenant "  to  be  fed  at  a  Mr  price,"  within  the 
meaning  of  the  Agricultural  Holdings  Act,  1883 


r 


1109 


LANDLORD    AND    TENANT. 


1110 


(46  k  47  Vict  c.  61),  s.  45,  and  were  therefore 
not  pririleged  from  distress.  Matters  v.  Qreen, 
20  Q.  B.  D.  807  ;  59  L.  T.  476  ;  36  W.  B.  691  ;  62 
J.  P.  597— D. 

Lire  stock  agisted  for  a  fair  equivalent  is 
within  46  k  47  Vict  c.  61,  s.  45  (the  Agricultural 
Holdings  Act,  1883),  as  taken  in  to  be  fed  at  a 
"fur  price,1'  and  may  therefore  be  exempt  from 
distress,  even  although  such  equivalent  be  not 
money.  Cows  were  agisted  on  the  terms  "  milk 
for  meat,"  i.e.  that  the  agister  should  take  their 
milk  in  exchange  for  their  pasturage : — Held, 
that  the  agistment  was  within  the  act.  London 
and  Yorkshire  Bank  v.  Belton,  15  Q.  B.  D.  467 ; 
54  L.  J.,  Q.  B.  568  ;  34  W.  B.  31 ;  60  J.  P.  86— 
D. 

—  Authority  ta  aet  as  Bailiff— Area  of 
Aitksrity.J — A  distress  was  levied  upon  a  hold- 
ing to  which  the  Agricultural  Holdings  (Eng- 
land) Act,  1883,  applied,  by  a  person  having 
authority  to  act  as  a  bailiff  under  the  act  from 
a  county  court  judge,  but  not  from  the  judge  of 
the  county  court  district  where  the  holding  was 
situate :— Held,  that  the  enactment  of  s.  52 — 
that u  no  person  shall  act  as  a  bailiff  to  levy  any 
distress  on  any  holding  to  which  this  act  applies 
unless  ....  authorised  to  act  as  a  bailiff  by 
....  the  judge  of  a  county  court " — was  satis- 
fied by  authority  from  the  judge  of  any  county 
court,  notwithstanding  the  enactment  of  s.  61 
that  "  *  county  court '  in  relation  to  a  holding 
means  the  county  court  within  the  district 
whereof  the  holding  or  the  larger  part  thereof 
is  situate."  Sergeant,  Ex  parte,  Sanders,  In  re, 
ML.  J.,Q.  B.  331  ;  62  L.  T.  616  ;  49  J.  P.  582— 
D. 

Percentage— Who  entitled  to.].— In  dis- 
tress for  rent  under  the  Agricultural  Holdings 
Act,  1883  (46  &  47  Vict  c.  61),  the  landlord,  and 
not  the  bailiff,  is  "  the  person  making  the  dis- 
tress "  under  s.  49,  and  is  therefore  entitled  to 
the  "percentage"  referred  to  in  the  second 
schedule  to  the  act.  Coode  v.  Johns,  17  Q.  B.  D. 
714 ;  55  L.  J.,  Q.  B.  475  ;  56  L.  T.  290  ;  35  W.  B. 
47 ;  51  J.  P.  21— D. 


IX.    FITBBISHED  HOUSES. 

Implied  Warranty  of  Fitness — Insufficiency 
*f  Water  Supply.] — An  agreement  was  entered 
into  between  C.  and  P.  for  the  lease  of  a  partly 
famished  house,  together  with  a  garden  and  a 
few  acres  of  ground,  for  a  term  of  five  years. 
P*  alleged  that  a  false  representation  had  been 
Bade  by  C.  as  to  the  sufficiency  of  the  water 
supply,  and,  on  the  water  supply  failing,  P. 
Alleged  that  the  house  was  uninhabitable,  and 
refused  to  be  bound  by  the  agreement.  There 
was  evidence  that  the  pipes  had  become  stopped 
op  when  the  house  was  in  the  occupation  of  P. : 
—Held,  upon  the  evidence,  that  there  had  been 
no  misrepresentation  by  C. ;  and  that,  in  a  let- 
ting of  this  description,  the  doctrine  laid  down 
in  Smith  y.  Marrable  (1 1  M.  &  W.  5),  that  there 
▼as  an  implied  condition  in  the  letting  of  a 
house  that  it  should  be  reasonably  fit  for  habita- 
tion, was  inapplicable.  Chester  v.  Powell,  52 
L  T.  732— V.-K  B. 

Iaisetious  Disease    Action  for  Bent]— One 


who  has  agreed  to  take  a  furnished  house  is  not 
bound  to  fulfil  his  contract  if  the  house  be  in- 
fected with  measles  at  the  date  fixed  for  the 
commencement  of  the  tenancy.  If  in  such  a 
case  the  lessor  sue  for  rent,  he  must  show,  to 
entitle  him  to  succeed,  that  the  house  was  in 
fact  in  a  state  fit  for  human  occupation  at  the 
date  fixed  for  the  commencement  of  the  term, 
notwithstanding  a  previous  intimation  by  the 
tenant  of  his  intention  to  repudiate  the  con- 
tract. Bird  v.  Greville  (Lord),  1C.&E.  317— 
Field,  J. 

Bight  to  determine  Lease — Implied  Agreement 
only  exists  at  Commencement. J — A  tenant  is  not 
justified  in  determining  a  tenancy  of  a  furnished 
house,  because  during  the  term  a  portion  of  the 
plastering  of  the  ceilings  (which  were  cracked 
and  fractured  at  the  commencement  of  the 
tenancy)  fell  in  one  room,  and  the  plastering  of 
the  ceilings  in  other  rooms  was  unsound,  and 
liable  to  fall.  On  a  letting  of  a  furnished  house,, 
the  implied  term  that  it  shall  be  fit  for  human 
habitation  only  applies  to  the  condition  of  the 
premises  at  the  commencement  of  the  tenancy. 
Maclean  v.  Currie,  1  C.  k  B.  361 — Stephen,  J. 


X.    LODCtnrG  HOUSES. 

Implied  Agreement— Dishonesty  of  Servant] 
— To  render  a  lodging-house  keeper  liable  for 
the  wrongful  acts  of  a  servant,  the  lodging-house 
keeper  must  have  been  guilty  of  such  a  mis- 
feasance, or  such  gross  misconduct,  as  an  ordi- 
nary and  reasonable  person  would  not  have  been 
guilty  of.  Clench  v.  D'Arenberg,  1  C.  &  B.  42— 
Cave,  J. 

Ledger's  Goods — Protection  from  Distress.] — 
See  ante,  cols.  1096,  1097. 

Bye-laws  as  to — Begistration,]  —  See  ante, 
col.  864. 


XI.    ACTIOJTS  FOB  BEC0VEBT  OF  LAHD. 
IN   COUNTY   COUBT. 

Jurisdiction  —  Determination  of  Tenancy  — 
"  Legal  ffotioe  to  quit"]— By  s.  50  of  the  County 
Courts  Act,  1856,  jurisdiction  in  ejectment  is 
given  to  the  county  courts  in  cases  where  neither 
the  rent  nor  the  value  of  the  premises  exceeds 
502.  a  year,  and  the  tenant's  term  and  interest 
"  shall  have  expired,  or  shall  have  been  deter- 
mined either  by  the  landlord  or  the  tenant  by  a 
legal  notice  to  quit." — The  plaintiff  let  to  the 
defendant  a  house  for  three  years  at  a  rent  of 
SI.  6s.  Sd.  a  month,  payable  monthly ;  the  agree- 
ment of  tenancy  contained  a  power  of  re-entry 
on  non-payment  of  any  part  of  the  rent  for 
twenty-one  days  after  the  day  of  payment,  or 
in  case  of  the  breach  or  non-performance  of  any 
of  the  conditions  of  the  agreement.  A  month1  s 
rent  having  been  in  arrear  for  more  than  twenty - 
one  days,  the  plaintiff  gave  the  defendant  notice 
to  quit  at  the  end  of  the  next  month  of  the  term , 
alleging  as  breaches  non-payment  of  rent  and  a 
breach  of  a  condition  in  the  agreement : — Held, 
that  a  "  legal  notice  to  quit "  must  be  taken  to 


1111     LANDS    CLAUSES  ACT— Purchase  of  and  Entry  on  Land.    1112 


mean  the  notice  to  quit  required  by  law  and  not 
one  depending  on  the  express  stipulation  of  the 
parties;  that  the  tenancy  had  not,  therefore, 
been  determined  within  the  meaning  of  the 
section,  and  that  an  action  to  recover  possession 
of  the  premises  could  not  be  brougnt  in  the 
county  court.  Friend  v.  Shaw,  20  Q.  B.  D.  374  ; 
57  L.  J.,  Q.  B.  225  ;  68  L.  T.  89 ;  36  W.  R.  236  ; 
52  J.  P.  438— D. 


LANDS    CLAUSES    ACT. 

I.  Purchase  of  and  Entby  on  Land. 

1.  Who  may  Sell,  1111. 

2.  Notice  to  Treat,  1111. 

3.  Entry  on  Land,  1115. 

4.  What  Lands,  1116. 

5.  Other  Matters  relating  to,  1117. 

IL  Compensation. 

1.  In  respect  of  What  Interests  or  Injuries. 

a.  Interests,  1118. 

b.  Injuries,  1118. 

2.  Settling  Amount  and  Practice  thereon, 

1121. 

IIL  Purchase  Money  and  Funds  in  Court. 

1.  In  General,  1124. 

2.  Persons  Entitled  to,  1124. 

3.  Petition  or  Summons,  1127. 

4.  Costs,  1129. 

IV.  Superfluous  Lands,  1133. 


I.   PURCHASE  OF  AND  EHTST  0V  LAJTD. 
1.  WHO  MAY  SELL. 

Sale  by  Lunatic.] — See  Tugwell,  In  re,  post, 
col.  1125. 

Owner  under  Disability — Declaration  by  Sur- 
veyors.]— On  a  sale  by  agreement  to  a  company 
by  an  owner  under  disability  : — Held,  that  the 
requirements  of  the  Lands  Clauses  Consolidation 
Act,  1845,  8.  9,  must  be  strictly  complied  with, 
and  that  the  absence  of  a  declaration  in  writing 
annexed  to  the  valuation  and  subscribed  by  the 
surveyors  was  fatal  to  a  claim  by  the  company 
for  the  specific  performance  of  the  contract, 
although  the  valuation  was  made  by  surveyors 
without  formal  appointment.  Bridgend  Oas 
and  Water  Company  v.  Dunraven,  31  Ch.  D. 
219 ;  55  L.  J.,  Ch.  91 ;  53  L.  T.  714 ;  34  W.  R. 
119— Chitty,  J. 


2.  NOTICE  TO  TREAT. 

Service  on  Tenant— Adoption  by  Owner.] — A 

corporation,  three  days  before  the  expiration  of 
their  compulsory  powers,  without  making  any 
attempt  to  discover  and  serve  the  owner  of  the 
property,  served  a  notice  to  treat  on  an  occupier 
of  part  of  the  premises  comprised  in  the  notice 
to  treat,  who  was  the  agent  of  the  owner  for  the 


management  of  Mb  property.  The  occupier  took 
it  the  same  day  to  the  solicitor  of  the  owner, 
and  also  wrote  to  the  owner;  but  it  did  not 
appear  that,  as  a  matter  of  fact,  the  notice  came 
to  the  hands  of  the  owner  before  the  three  days 
had  expired.  The  owner,  however,  after  the 
expiration  of  the  three  days  gave  a  counter- 
notice  under  a.  92  requiring  the  corporation  to 
take  the  whole  of  his  property.  This  notice  he 
subsequently  withdrew,  and  required  the  cor- 
poration to  proceed  with  the  purchase  of  the 
land  specified  in  their  notice  to  treat,  which  they 
declined  to  do : — Held,  that  the  service  of  the 
notice  to  treat  was  irregular  and  invalid,  and 
that  the  owner  could  not,  by  his  subsequent 
adoption  of  the  notice,  cure  the  irregularity 
and  compel  the  corporation  to  proceed  with  it 
Shepherd  v.  Norwich  (Mayor),  30  Ch.  D.  553; 
54  L.  J.,  Ch.  1050  ;  53  L.  T.  251 ;  33  W.  R.  841 
—North,  J. 

The  conditions  necessary  for  service  of  a  notice 
to  treat  discussed.    lb. 

Counter-notice  —  Acceptance  by  Company*! 
Solicitor  —  Authority  to  bind  Company.]— A 
railway  company  served  the  plaintiff  with  notice 
to  treat  for  the  purchase  of  certain  property,  and 
the  plaintiff  served  the  company  with  a  counter- 
notice  requiring  them  to  take  certain  other 
property  as  well  as  that  comprised  in  the  notice 
to  treat.  The  solicitors  of  the  company  wrote 
accepting  the  counter-notice,  but  the  company 
afterwards  insisted  on  their  right  to  take  only 
the  property  comprised  in  the  notice  to  treat 
It  having  been  found  as  a  fact  that  the  pro- 
perties were  separate  and  distinct,  and  that 
therefore  the  counter-notice  was  bad :—  Held, 
that  the  acceptance  of  the  bad  counter-notice  by 
the  solicitors  could  not  bind  the  company  to  take 
land  which  they  were  not  otherwise  compellable 
to  take.  Treadwell  v.  London  and  South- 
western Railway,  54  L.  J.,  Ch.  565  ;  51  L.  T. 
894  ;  33  W.  R.  272— Kay,  J. 

Hotice  and  Counter-notice — Right  of  Abaa- 

donment] — See  Morrison  v.  Great  Eastern  Rail- 
way,  post,  coL  1123. 

Disputed  Interest— Action  by  Landowner  tv 
Declaration   of  Title  —  Jurisdiction   of  Higa 

Court.] — A.,  in  possession  of  land  under  a  build- 
ing agreement,  which  required  the  houses  to  be 
erected  by  November,  1885,  was  in  1883  in- 
formed by  a  railway  company  of  their  intention 
to  obtain  a  special  act  to  extend  their  railway 
system,  which  scheme  would  affect  his  land.  A. 
thereupon  arranged  with  his  landlord  for  an 
extension  of  the  time  limited  by  his  agreementr- 
no  definite  period  being  fixed — and  suspended 
his  building  operations.  The  company  obtained 
their  special  act  in  1883,  and  in  1884  gave  A  the 
usual  notice  to  treat  for  part  of  the  land  com- 
prised in  his  building  agreement,  but  A.  sent  in 
no  claim  under  the  notice.  In  1886  the  com- 
pany took  adverse  possession  of  the  land  in 
question,  treating  the  building  agreement  as  at 
an  end,  and  insisting  that  A.  had  no  interest 
whatever  in  the  land.  On  action  brought  by  A 
against  the  company  for  a  declaration  that  the 
building  agreement  was  still  subsisting,  and 
that  he  was  entitled  to  have  his  interest  there- 
under assessed  in  the  usual  way : — Held,  that 
the  jurisdiction  of  the  court  was  not  ousted  by 


1118    LANDS   CLAUSES   ACT— Purchase  of  and  Entry  on  Land.     1114 


the  procedure  under  the  Lands  Clauses  Con- 
solidation Act,  1845,  and  that  A.  was  entitled  to 
the  declaration  he  claimed.  East  and  West 
Mia  Dock*  Company  v.  Qattke  (3  Mac.  &  G. 
155),  and  London  ana  Blackmail  Railway  v. 
Crm  (31  Ch.  D.  354),  distinguished.  Birming- 
fam  and  District  Land  Company  v.  London  and 
Nortk  Western  Railway,  36  Ch.  D.  650;  57 
L  J..  Ch.  121 ;  57  L.  T.  185 ;  36  W.  R.  414— 
Kekewich,  J.  Affirmed  40  Ch.  D.  268  ;  60  L.  T. 
527— C.  A. 

Validity  —  Estoppel  by  Conduct  —  Hegotia- 

tima]— The  plaintiff  was  owner  of  six  adjacent 
houses,  five  in  G.  place,  and  one  in  Butler's  alley. 
Four  of  the  houses  in  G.  place  adjoined  Butler's 
alley.    On  the  2nd  of  December,  1884,  the  com- 
missioners of  sewers  resolved  to  alter,  widen,  and 
extend  Butler's  alley,  and  adjudicated  that  the 
plaintiff's  six    houses  were  required  for  that 
purpose.     Shortly  afterwards  they  served  the 
plaintiff  with  a  notice  to  treat,  which  stated 
that  the  houses  were  required  for  altering  and 
widening  Butler's  alley.    The  plaintiff  sent  in  a 
claim  for  2,500/.    The  parties  could  not  agree 
shoot  the  price,  and  in  October,  1885,  the  ne- 
gotiations having  come  to  an  end,  the  commis- 
sioner* proceeded   to   summon  a   jury.     The 
plaintiff  then  made  inquiry  as  to  their  plans, 
and  commenced  this  action  to  prevent  them  from 
taking  the  property.    It  appeared  from  a  plan 
lent  to  the  plaintiff  in  November,  1885,  which 
was  the  first  information  he  had  as  to  the  nature 
of  the  alterations  proposed  by  the  commissioners, 
that  the  part  of  Butler's  alley  which  lay  at  the 
back  of  the  four  houses  in  G.  place  was  only  to 
be  widened  by  a  strip  tapering  from  the  width 
of  twelve  inches  to  a  point,  and  it  appeared  that 
considerable  alterations  were  to  be  made  in  the 
level  of  G.  place  and  Butler's  alley.    The  plain- 
tiff moved  for  an  injunction: — Held,  that  Thomas 
▼.  Daw  (2  L.  B.,  Ch.  1)  was  inapplicable,  as  in 
that  case  the  plaintiff  knew  all  along  what  the 
plans  of  the  commissioners  were,  whereas  in  the 
present  case  the  plaintiff  did  not  know  them  till 
after  the  negotiations  were  at  an  end,  and  was 
justified  in  believing  the  representation  in  the 
notice  that  his  houses  were  required  for  altering 
and  widening  Butler's  alley,  and  that  the  plain- 
tiff'«  conduct  had  not  been  such  as  to  debar  him 
from  asserting  his  rights.    Held,  further,  that  it 
was  a  question  to  be  tried  at  the  hearing  whether 
the  only  real  object  of  the  commissioners  as  to 
the  part  of  Butler's  alley  adjoining  the  plain- 
tiff's houses  was  not  to  lower  its   level,  and 
whether  the  minute  widening  of  that  street  was 
not  merely  colourable,  and  proposed  in  order  to 
give  them  power  to  purchase  under  their  act, 
which  gave  them  a  power  of  compulsory  pur- 
chase Cor  the  purpose  of  widening  streets,  but 
not  for  the  purpose  of  altering  levels.    Held, 
therefore,  that  the  commissioners  ought  to  be 
restrained,  till  the  hearing  or  further  order,  from 
proceeding  to  assess  the  value  of  the  plaintiff's 
houses.    Lynch  v.  Commissioners  of  Sewers,  32 
Ck  D.  72  ;  55  L.  J.,  Ch.  409  ;  64  L.  T.  699  ;  50 
J.  p.  548—C.  A.    Reversing  34  W.  R.  226— 

An  adjudication  of  the  commissioners  that  a 
certain  property  is  required  for  the  purpose  of 
alterations  cannot  be  supported  if  there  are  no 
grounds  on  which  any  reasonable  person  could 
some  to  the  conclusion  that  it  was  so  required. 
The  commissioners  cannot  validly   adjudicate 


that  a  property  is  required  for  the  purposes  of  an 
improvement  nntil  they  have  determined  what 
the  improvement  is  to  be,  so  far  as  to  furnish 
materials  for  judging  whether  the  property  is 
required.    lb. 

Easement— Right  to  cross  Line  of  another 
Company  —  Subscription  of  Capital.] — By  the 
act  incorporating  the  8.  Railway  Company,  the 
Lands  Clauses  Act,  1845,  except  where  expressly 
varied  thereby,  was  incorporated  therewith,  and 
it  was  enacted  that  the  words  to  which  meanings 
were  assigned  by  the  Lands  Clauses  Act  should 
in  the  special  act  have  the  same  meanings  unless 
there  was  something  in  the  subject  or  context 
repugnant  thereto.  The  8.  Company,  "subject 
to  the  provisions  of  this  act,"  were  empowered 
to  purchase  any  of  the  lands  in  their  deposited 
plans.  By  s.  8,  which  was  inserted  for  the 
protection  of  the  G.  W.  Railway  Company,  it 
was  provided  (sub-s.  1),  that  the  S.  Company 
should  not  enter  upon  or  interfere  with  or  exe- 
cute any  work  over  or  under  the  line  of  the 
G.  W.  Railway  until  plans  had  been  approved 
by  the  engineer  of  the  G.  W.  Company  or 
an  engineer  appointed  by  the  Board  of  Trade. 
Sub-s.  2  provided  that  the  railway  of  the  8. 
Company  should  be  carried  in  one  place  over 
and  in  another  under  the  G.  W.  Railway  by  a 
bridge  and  tunnel.  By  sub-s.  4  the  bridge  and 
tunnel  were  to  belong  to  the  G.  W.  Company. 
By  sub-s.  8  the  8.  Company  were  not  to  interfere 
with  the  land  of  the  G.  W.  Company  except  for 
the  purposes  of  the  above  crossings,  and  it  was 
enacted  that  the  8.  Company  should  not  pur- 
chase or  take  any  land  of  the  G.  W.  Company, 
but  that  the  S.  Company  might  purchase  and 
the  G.  W.  Company  should  grant  an  easement  or 
right  of  using  the  crossings  in  perpetuity.  By 
sub-s.  9  every  dispute  between  the  two  com- 
panies respecting  the  above  matters  or  any  of 
them  was  to  be  referred  to  arbitration.  The  8. 
Company  were  proceeding  to  make  the  crossings, 
and  the  G.  W.  Company  brought  their  action  to 
restrain  them  from  doing  so,  on  the  ground  that 
the  capital  of  the  S.  Company  had  not  been 
subscribed,  and  that  under  the  16th  section  of 
the  Lands  Clauses  Act  they  could  not  proceed 
to  put  in  force  any  of  their  powers  for  the  com- 
pulsory purchase  of  land  until  it  had  been  sub- 
scribed:— Held  (Lord  Watson  diss.),  that  the 
right  given  by  the  special  act  was  a  right  of 
taking  easements,  not  the  exercise  of  running 
powers,  nor  the  right  of  compulsory  taking  of 
"  lands  "  within  the  Lands  Clauses  Act,  1845, 
s.  16,  and  that  the  notice  to  treat  was  good, 
Great  Western  Railway  v.  Swindon  and  Chel- 
tenham Railway,  9  App.  Cast  787  ;  53  L.  J.,  Ch. 
1075  ;  51  L.  T.  798  ;  32  W.  R>  957  ;  48  J.  P.  821 
— H.  L.  (B.). 

Under  what  Section.]— The  notice  to  treat 
was  good,  because  it  was  given  not  under  the 
Lands  Clauses  Act,  s.  18,  but  under  s.  8,  sub-s.  8, 
of  the  special  act.    lb, — Per  Lord  Fitzgerald. 

The  notice  was  good,  because  even  if  given 
under  s.  35  of  the  Lands  Clauses  Act  and  not 
under  the  above  section  of  the  special  act,  never- 
theless the  respondent  company  were  entitled 
to  proceed  before  their  capital  was  subscribed,, 
because  under  the  Lands  Clauses  Act,  1845,  s.  85, 
the  land  is  not  "  taken  "  but  only  entered  upon. 
lb. — Per  Lord  Bramwell. 


1115     LANDS  CLAUSES  ACT— Purchase  of  and  Entry  on  Land.    1116 

piiation  of  the  five  yean.  Tiverton  and  North 
Devon  Railway  v.  Loosemore,  9  App.  Cas.  480 ; 
63  L.  J.,  Ch.  812  ;  60  L.  T.  637  ;  32  W.  R.  929 ; 
48  J.  P.  372— H.  L.  (E.). 


3.    ENTRY  ON  LAND. 

Effect  ot] — An  entry  on  land  is  not  a  "com- 

C~  ory  taking "  within  the  meaning  of  the 
ds  Glauses  Act,  1846.  Great  Western  Rail- 
way v.  Swindon  and  Cheltenham  Railway,  supra 
— Per  Lords  Bramwell  and  Watson. 

Abandonment  of  Bail  way — Costs  of  "Taking 
Land."] — A  railway  company  gave  notice  to 
treat  for  a  piece  of  land,  and  no  agreement 
having  been  come  to  with  the  owners,  they 
entered  on  the  land  under  the  powers  of  the 
86th  section  of  the  Lands  Glauses  Act,  and  paid 
the  deposit  into  court  Afterwards  the  com- 
pany obtained  an  act  by  which  they  were  em- 
powered to  abandon  that  part  of  their  under- 
taking, but  it  was  enacted  that  the  abandonment 
should  not  prejudice  any  landowner's  rights  to 
compensation  for  damage  done  by  entry  and 
occupation,  and  that  the  compensation  should 
•  be  determined  in  the  manner  provided  by  the 
Lands  Glauses  Act.  The  owners  of  the  land  then 
entered  into  an  agreement  with  the  company 
fixing  the  amount  of  compensation  at  1,3501.,  but 
providing  that  this  should  not  Include  costs, 
charges,  and  expenses  which  the  owners  might 
be  entitled  to  recover  under  the  company's  acts, 
"but  that  such  costs,  charges,  and  expenses  should 
be  recoverable  from  the  company  in  addition  to 
the  compensation  as  if  the  agreement  had  not 
been  entered  into.  The  company  objected  to 
pay  the  costs  of  ascertaining  toe  amount  of  the 
compensation  on  the  ground  that  the  land  had 
not  been  taken  within  the  meaning  of  the  80th 
section  of  the  Lands  Glauses  Act.  They  also 
objected  to  pay  the  costs  of  the  preparation  of 
the  agreement : — Held,  that  the  land  had  been 
"  taken  "  within  the  meaning  of  the  80th  section, 
and  that  the  company  must  pay  the  costs  of 
ascertaining  the  amount  of  compensation  and  of 
the  preparation  of  the  agreement.  Charliton  v. 
Rolleston,  28  Gh.  D.  237  ;  64  L.  J.,  Ch.  233  ;  61 
L.  T.  612— C.  A. 

Shortly  before  Expiration  of  Period  for  Com- 
pletion.]— The  special  act  of  a  railway  company 
enacted  that  "  the  powers  of  the  company  for 
the  compulsory  purchase  of  lands  for  the  pur- 
poses of  this  act  Bhall  not  be  exercised  after  the 
expiration  of  three  years  from  the  passing  of 
this  act ; "  and  that  "  if  the  railways  are  not 
completed  within  five  years  from  the  passing 
of  this  act,  then  on  the  expiration  of  that  period 
the  powers  by  this  act  granted  to  the  company 
for  making  and  completing  the  railways  or  other- 
wise in  relation  thereto  shall  cease  to  be  exercised, 
except  as  to  so  much  thereof  as  is  then  completed." 
A  few  years  before  the  expiration  of  the  three 
years  the  company  served  on  a  landowner  a  notice 
to  treat  for  part  of  his  land.  A  correspondence 
ensued,  no  agreement  was  come  to,  and  the  com- 
pensation was  not  assessed.  Thirteen  days  before 
the  expiration  of  the  five  years  the  company, 
having  complied  with  the  requirements  of  8.  85 
of  the  Lands  Glauses  Act,  1846,  entered  and  pro- 
ceeded to  make  the  railway,  the  landowner  ob- 
jecting and  resisting.  The  land  was  bona  fide 
required  for  the  railway  : — Held,  that  whether 
the  railway  could  or  could  not  have  been  com- 
pleted within  the  thirteen  days,  the  entry  under 
•a.  86  was  lawful ;  that  the  company  could  not  be 
restrained  by  injunction,  but  were  entitled  to 
remain  and  complete  the  railway  after  the  ex- 


4.    WHAT  LANDS. 

"House"— Residential  Property— Detached 
portion  of  Property.]— Upon  a  compulsory  par- 
chase  of  a  house  under  the  powers  of  the  Lands 
Clauses  Act,  the  promoters  are  bound  to  take 
only  the  entire  property  which,  as  a  matter  of 
legal  construction,  would  pass  under  a  grant  or 
devise  simpliciter  of  the  particular  house  in 
question  in  each  particular  case.  Kerfori  v. 
Seacombe,  Hoy  lake,  and  Deeside  Railway  57 
L.  J.,  Ch.  270  ;  58  L.  T.  445  ;  36  W.  R.  431 ;  52 
J.  P.  487— Kekewich,  J. 

The  plaintiff,  in  the  year  1853,  acquired  land 
on  the  north  side  of  a  road,  on  which  he  built  a 
residence  for  his  own  occupation.  In  the  year 
1864  he  acquired  a  plot  of  land  on  the  south 
side  of  the  same  road  immediately  opposite  his 
residence,  whereon  he  built  stables  and  formed 
a  kitchen  garden,  and  this  property  had  since 
been  continuously  occupied  by  him  as  an  ad- 
junct to  his  residence.  The  defendants  gaye 
notice  to  exercise  their  compulsory  powers  in 
respect  of  the  stables  and  garden  only :— Held, 
that  the  property  included  in  the  notice  was  not 
part  of  the  plaintiffs  "  house  "  within  a.  92  of  the 
act,  and  the  defendants  could  not  be  compelled 
to  take  the  plaintiffs  residence  itself.  Quere, 
whether  under  such  circumstances  a  piece  of  land 
detached  from  a  residence  may  not  be  part  of 
the  "  house  "  within  the  meaning  of  the  section. 
lb. 

Home  and  adjoining  Paddock.]— The  owner 
of  a  property  consisting  of  a  strip  of  land  about 
100  yards  long  by  30  yards  wide,  with  a  road  at 
each  end,  containing  front  garden,  house,  back 
garden  and  paddock,  the  latter  abutting  on  the 
back  road,  and  with  private  roads  from  the  boose 
to  the  front  road,  and  from  the  house  along  the 
side  of  the  paddock  to  the  back  road,  received 
notice  from  a  railway  company  of  their  intention 
to  take  the  whole  of  the  end  of  the  paddock  and 
private  road,  so  as  to  cut  him  off  from  the  back 
road :— Held,  that  they  must  take  the  whole 
property.  Barnes  v.  Southtea  Railway,  27  Ch. 
D.  536  ;  51  L.  T.  762  ;  32  W.  R.  976-V.-C.  R 

Two  Houses  —  Internal  Communication.]— 
Where  a  man  used  two  houses  with  internal 
communication  as  one  house  for  the  purpose  of 
one  business,  holding  them  under  separate  leaa* 
of  even  date  from  the  same  lessor,  the  court  held 
that  the  two  houses  constituted  one  entire  boose 
within  the  meaning  of  the  Lands  Glauses  Act, 
1845,  s.  92,  so  that,  if  the  company  took  the  pre- 
mises comprised  in  one  lease,  they  were  bound 
to  take  those  comprised  in  the  other.  Sternberg 
v.  Metropolitan  District  Railway,  49  L.  T.  6o4 ; 
32  W.  R.  383— V.-C.  B. 

Part  of  Manufactory— Taking  whole- fb» 
of  Business  as  distinguished  from  Manufactory. J 
— B.  and  Sons,  tea  merchants,  carried  on  their 
business  at  P.  House  and  also  in  houses  in  G. 
street  in  the  immediate  vicinity.  In  the  housei 
in  G.  street  the  tea  was  stored,  blended  and 
milled,  and  by  those  and  similar  processes  «?«**} 
teas  of  a  distinct  quality  were  produced  and  sold 


1117 


LANDS    CLAUSES    ACT— Compensation. 


1118 


in  the  market  under  B.  and  Sons*  trade  mark. 
In  P.  Home  the  packing  requisites  were  prepared 
ad  made,  and  the  tea  packed,  and  thence  it  was 
delivered  to  customers.  The  Metropolitan  Board 
of  Works  desired  to  take  P.  House  under  their 
compulsory  powers : — Held,  that  manufacture 
meant  producing  something  new  from  raw 
material,  which  was  not  the  case  here ;  but 
that,  eyen  supposing  a  manufacture  was  carried 
<ffl  at  0.  street,  there  was  no  manufacture 
tarried  on  at  P.  House,  and  as  the  business 
and  manufacture  were  carried  on  in  distinct 
premises,  it  was  not  incumbent  on  the  Board 
to  take  the  premises  as  a  whole.  Consequently, 
B.  and  Sons  were  not  entitled  to  an  injunction 
restraining  the  Board  from  taking  P.  House 
without  taking  the  whole.  Benington  v.  Metro- 
pliUn  Beard  of  Work*,  54  L.  T.  837  ;  50  J.  P. 
740-Chitty,  J. 


6.   OTHER  MATTERS  RELATING  TO. 

Private  Way — Construction  of  Conveyance — 
"Sights,  Members,  fte."j — In  a  conveyance  to 
a  railway  company  of  a  piece  of  land  on  which 
waj  a  stable,  the  words,  "  rights,  members,  and 
appurtenances,"  used  in  the  form  given  in 
Schedule  A,  appended  to  the  Lands  Clauses  Act, 
were  inserted.  The  vendor  had  many  years 
previously  made  a  private  road  from  the  highway 
to  the  stable,  over  his  own  land,  for  his  own 
convenience,  and  had  used  it  ever  since.  The 
nil  of  the  road  was  not  conveyed  to  the  com- 
pany, and  no  express  mention  of  it  was  made  in 
the  conveyance : — Held,  that  the  right  of  way 
pined  to  the  company.  Bayley  v.  Great 
Wetter*  Railway,  26  Ch.  D.  434  ;  51  L.  T.  337 
-C.A 

Agreement  to  Purchase — Flaw  in  Title— 
•peemc  Performance— -Possession.] — The  plain- 
tiff, a  lessee  of  premises  required  for  a  street 
improvement,  contracted  to  sell  a  lease  of  the 
premises  for  twenty-one  years  to  the  Metro- 
politan Board  of  Works.  The  purchasers 
required  an  abatement  on  the  ground  that  the 
toie  was  found  to  be  determinable  at  the  end  of 
•even  ^  or  fourteen  years  by  the  lessor.  The 
plaintiff  claimed  specific  performance.  Pending 
the  action  the  Board  applied  to  be  let  into  poe- 
■earion  on  payment  into  court  of  the  whole 
purchase-money  claimed,  and  Pearson,  J.,  made 
*n  order  for  letting  them  into  possession  on  their 
psjing  into  court  that  sum  with  interest : — Held, 
on  appeal,  that  though  the  Board  could,  by 
taking  the  steps  prescribed  by  the  Lands  Clauses 
-Act,  have  obtained  immediate  possession  of  the 
property,  yet  as  they  had  not  done  so,  they  were 
in  the  same  position  as  any  other  purchaser  who 
**■  defendant  to  an  action  for  specific  per- 
bonance,and  were  not  entitled  to  have  possession 
given  to  them  pending  the  action.  Bygrave  v. 
Metropolitan  Board  of  Works,  32  Ch.  D.  147  ; 
*5  L  J.,  Ch.  602  ;  64  L.  T.  889  ;  50  J.  P.  788— 

Jy  School  Board.]— See  School. 

Betdeaey  of  Assessment  to  Poor  Rate— 
tfcUttty  of  Promoters.]  —  See  Poob  Law 
(tacorar  of  Rates). 


om  Conyeyanoe.]— See  Revenue. 


TX    COMPENSATION. 


1.    IN  RESPECT  OF  WHAT  INTERESTS 
OR  INJURIES. 

a.  Interests, 

Tenancy— Right  to  use  Room.]— A  right  for 
directors  to  use  a  board-room  for  certain  pur- 

Soses,  at  certain  times,  and  for  a  clerk  to  use  a 
esk  in  an  office  for  certain  purposes,  does  not 
constitute  a  tenancy  so  as  to  entitle  the  company 
to  recover  compensation  for  disturbance  under 
the  Lands  Clauses  Acts.  Municipal  freehold  Land 
Company  v.  Metropolitan  and  uistriat  Railways, 
1C.&E.  184— Cave,  J. 

Interesse  Termini.] — The  plaintiff  agreed 


to  take  a  theatre  for  eight  weeks,  to  commence 
on  a  future  day.  Before  the  commencement  of 
the  term,  and  before  entry  by  the  plaintiff,  the 
defendants,  by  excavating  on  their  property,  de- 
prived the  theatre  of  the  support  of  the  adjacent 
land,  so  that  the  theatre  was  rendered  unsafe, 
and  was  closed  during  the  eight  weeks  by  order 
of  the  proper  local  authorities.  The  plaintiff 
sued  the  defendants  in  respect  of  the  damage 
suffered  by  him  in  consequence  of  their  acts : — 
Held,  that  the  defendants  had  injured  a  pro- 
prietary right  of  the  plaintiff,  who  was,  there- 
fore, entitled  to  maintain  the  action.  QUlard  v. 
Cheshire  Lines  Committee,  32  W.  R.  943— C.  A. 

Termination  of  Interest  of  Claimant] — 


A  railway  company  commenced  to  build  ware- 
houses which  were  intended  to  be  100  feet  in 
height.  The  lessee  of  a  warehouse,  the  light  of 
which  would  be  affected  when  the  buildings 
were  completed,  gave  notice  to  the  railway 
company  that  he  held  on  a  lease  for  an  un- 
expired term  of  fourteen  years,  which  could  be 
determined  by  six  months'  notice,  to  expire  on 
November  11  then  next,  and  required  the  com- 
pany to  determine  whether  they  would  take 
over  the  lease,  or  whether  he  should  give  the 
requisite  notice.  The  company  declined  to  in- 
terfere, and  the  lessee  on  May  6  gave  notice  to 
determine  his  tenancy.  There  was  no  evidence 
that  at  the  time  the  building  had  progressed  so 
far  as  to  affect  the  light  to  the  warehouse. 
Afterwards  the  lessee  gave  notice  to  the  com- 
pany of  his  claim  for  compensation  for  injuri- 
ously affecting  his  lands,  and  an  inquiry  was 
held  before  the  sheriff  and  a  jury  : — Held,  that 
the  act  of  the  lessee  in  giving  notice  to  termi- 
nate his  lease,  not  being  the  natural  result  of 
the  acts  of  the  railway  company,  but  a  free 
exercise  of  will  on  his  part,  he  could  not  recover 
compensation  on  the  footing  that  he  was  en- 
titled to  a  fourteen  years'  lease.  Reg.  v.  Poulter, 
20  Q.  B.  D.  132 ;  57  L.  J.,  Q.  B.  138 ;  58  L.  T. 
534 ;  36  W.  R.  117 ;  62  J.  P.  244— C.  A. 

b.  Injuries. 


ii 


Injuriously  affecting  "—Property  adjoining 
Land  taken.] — Part  of  land  laid  out  as  a  build- 
ing estate  was  taken  by  a  local  board  under  an 
act  incorporating  the  Lands  Clauses  Act,  1845 
(8  &  9  Vict,  c  18),  for  the  purposes  of  a  sewage 
farm,  whereby  the  valne  of  other  parts  of  the 
land  near  to  the  part  so  taken  was  depreciated, 
even  in  the  absence  of  any  nuisance  arising  from 
the  sewage  farm  when  made : — Held,  that  the 
owner  of  the  estate  was  entitled  to  compensation 


1119 


LANDS    CLAUSES    ACT— Compensation. 


1120 


under  the  Lands  Clauses  Act,  1845  (8  &  t>  Vict, 
c.  18),  s.  63,  not  only  in  respect  of  the  land  taken, 
but  also  for  damage  sustained  by  reason  of  the 
"  injuriously  affecting  "  the  other  lands  by  the 
exercise  of  the  statutory  powers.  Reg.  v.  Essex, 
14  App.  Cas.  153— H.  L.  (E.).  Reversing  17 
Q.  B.  D.  447  ;  55  L.  J.,  Q.  B.  313  ;  64  L.  T.  779  ; 
34  W.  R.  587  ;  51  J.  P.  3— C.  A. 

Alteration  of  Levels— Loss  of  Access  to 


Street] — By  a  deed  of  conveyance  land  was 
conveyed  to  the  respondents'  predecessor  in 
title,  "  the  situation,  dimensions,  and  boundaries 
whereof  are  particularly  described  in  the  map 
or  plan  drawn  on  these  presents  .  .  .  together 
witn  all  streets,  ways,  rights,  easements,  and  ad- 
vantages." The  plan  showed  a  piece  of  land  at 
the  intersection  of  "G.  street"  and  "  M.  street," 
which  were  delineated  communicating  on  a  level. 
The  land  was  in  fact,  at  the  date  of  the  convey- 
ance, waste  building  land  on  the  outskirts  of  a 
town,  and  neither  of  the  streets  had  been  made  or 
dedicated  to  the  public.  The  soil  of  the  intended 
streets  was  the  property  of  the  vendor.  Houses 
were  built  on  the  land  fronting  M.  street,  and 
both  streets  were  made  and  used  as  streets ;  but 
the  appellant  company  afterwards  made  a  branch 
line  passing  under  G.  street,  near  the  property 
in  question,  and  thereby  altered  the  level  of  that 
street,  and  cut  off  the  access  for  horses  and 
vehicles  from  M.  street  into  G.  street ;  a  means 
of  access  for  foot-passengers  remained : — Held, 
that  the  conveyance  granted  to  the  purchaser  a 
right  of  way  from  M.  street  into  G.  street,  and 
that  the  alteration  of  levels  had  "  injuriously 
affected"  the  land  within  the  meaning  of  the 
Railway  Clauses  Act,  1845,  so  as  to  entitle  the 
respondents  to  compensation.  Fwmess  Railway 
v.  Cumberland  Building  Society,  52  L.  T.  144 ; 
49  J.  P.  292— H.  L.  (Ej. 

Diversion  of  Bead  from  Public-house — 


Special  Value  as  a  Public-house.]— Under  statu- 
tory powers  conferred  by  an  act  incorporating 
the  Lands  Clauses  Act,  1845  (8  &  9  Vict  c  18), 
a  railway  company  stopped  up  a  street  in  which 
were  a  house  and  premises  used  as  an  hotel, 
whereby  the  value  thereof  for  using,  selling, 
or  letting  as  an  hotel  and  public-house  was 
diminished :— Held,  that  the  owner  was  entitled 
to  compensation  under  the  Lands  Clauses  Act, 
1845,  for  the  depreciation  in  the  special  value 
of  the  premises  as  an  hotel  and  public-house. 
Wadham  v.  North-Eastern  Railway,  16  Q.  B.  D. 
226  ;  55  L.  J.,  Q.  B.  272  ;  84  W.  R.  342— C.  A. 
Affirming  52  L.  T.  894  ;  49  J.  P.  599— D. 

Prospective  Injury.] — A  claimant  cannot  re- 
cover compensation  in  respect  of  an  injury  which 
is  merely  prospective  and  does  not  exist  at  the 
time  of  making  the  claim.  Reg.  v.  Povlter, 
supra. 

During  the  Execution  of  the  Works.]— Under 
the  Lands  and  Railways  Clauses  Consolidation 
Acts  the  owner  or  occupier  of  lands  injuriously 
affected  during  the  execution  of  the  works 
authorised  by  the  special  act  is  entitled  to  com- 
pensation, if  the  injury  is  sufficient  to  lessen  the 
value  of  the  property.  Observations  of  Lord 
Chelmsford,  L.C.,  in  Ricket  v.  Metropolitan 
Railway  (2  L.  R„  H.  L.  175,  at  p.  194)  com- 
mented on.  Ford  v.  Metropolitan  and  Metro- 
politan District  Railways,  17  Q.  B.  D.  12 ;  55 
L.  J.,  Q.  B.  296 ;  54  L.  T.  718 ;  84  W.  R.  426 ; 


50  J.  P.  661— C.  A.    Affirming  1  C.  k  E.  593- 
Day,  J. 

A  house  was  divided  into  a  front  and  a 
back  block ;  and  the  plaintiffs  were  lessees 
of  three  rooms  on  the  first  floor  in  the  back 
block.  The  lease  did  not  expressly  grant 
any  mode  of  access.  Access  to  the  rooms 
demised  to  the  plaintiffs  was  gained  from  the 
street  by  passing  through  a  hall  or  vestibule,  and 
then  up  some  stairs  to  the  plaintiffs'  rooms.  The 
defendants  in  the  exercise  of  compulsory  powers 
under  the  Railways  Clauses  Consolidation  Act, 
took  down  the  front  block  of  the  house,  and  re- 
moved the  hall.  The  interference  with  the  hall 
and  the  injury  to  the  access  to  the  rooms  of 
which. the  plaintiffs  were  lessees,  lessened  their 
value.  An  arbitrator  having  awarded  compen- 
sation to  the  plaintiffs  under  the  Lands  and 
Railway  Clauses  Consolidation  Acts  :— Held, 
that  the  award  was  valid  on  the  grounds,  first, 
that  compensation  may  be  obtained  under  the 
Railways  Clauses  Consolidation  Act,  1845,  for 
injury  done  to  land  by  the  execution  of  the  works,, 
if  it  is  sufficient  to  lessen  the  value  thereof; 
secondly,  that  the  access  through  the  hall  was 
not  a  way  of  necessity,  but  was  in  the  nature  of 
a  continuous  and  apparent  easement  which 
passed  under  the  demise  of  the  rooms,  and  that 
an  interference  with  this  quasi  easement  was 
sufficient  to  give  rise  to  a  valid  claim  for  com- 
pensation,   lb. 

Bower— Bight  of  Access  to.] — The  plaintiffs, 
in  1843,  under  the  authority  of  a  local  act,  con- 
structed a  sewer  on  land  part  of  which  had  been 
bought  by  the  defendants,  a  railway  company, 
but  had  not  then  been  used  for  their  works. 
Part  of  the  remainder  was  bought  by  the  defen- 
dants after  the  construction  of  the  sewer,  but  no 
part  of  the  land  was  the  plaintiffs',  or  had  ever 
been  granted  to  them.  The  local  act  not  only 
authorised  the  plaintiffs  to  make  the  sewer,  bat 
vested  it  in  them,  with  the  duty  to  repair  it, 
without,  however,  giving  them  any  express  right 
of  access  thereto.  In  1863  the  defendants,  in 
exercise  of  the  powers  conferred  on  them  by 
their  special  act,  with  which  was  incorporated 
the  Railway  Clauses  Consolidation  Act,  1845, 
constructed  an  embankment  over  the  sewer 
which,  though  it  made  it  less  easy,  did  not  pre- 
vent the  plaintiffs  getting  access  to  the  sewer  in 
order  to  repair  it  The  plaintiffs  being  obliged 
afterwards  to  repair  and  having  incurred  extra 
expense  in  doing  so  in  consequence  of  snch 
embankment,  claimed  compensation  from  the 
defendants  under  s.  68  of  the  Lands  Clauses  Con- 
solidation Act,  1845,  and  s.  6  of  the  Railways 
Clauses  Consolidation  Act,  1845,  for  injuriously 
affecting  the  plaintiffs*  interest  in  the  sewer  :— 
Held,  by  the  Queen's  Bench  Division,  that  the 
plaintifre  had  no  interest  in  land  within  the 
meaning  of  the  Lands  Clauses  Consolidation 
Act,  1845,  s.  68,  and  therefore  could  not  main- 
tain the  claim  to  compensation  : — Held,  by  the 
Court  of  Appeal,  that  as  a  right  of  access  to  the 
sewer  had  not  been  expressly  given  by  the  local 
act  but  had  to  be  implied,  the  right  of  access 
which  ought  to  be  implied  was  not  any  particu- 
lar mode  of  access,  but  such  only  as  was  reason- 
ably necessary  for  enabling  the  repair  of  the 
sewer  to  be  done,  and  as  that  had  not  been  pre- 
vented by  the  defendants*  embankment,  bat  only 
rendered  less  easy  and  convenient,  the  plaintiffs 
had   no   right   to   compensation.    Birkenhead 


1121 


LANDS    CLAUSES    ACT— Compensation. 


1122 


(Mayor)  v.  London  and  North-Western  Rail- 
u»v,  15  Q.  B.  D.  572 ;  56  L.  J.,  Q.  B.  48 ;  50 
J.  P.  84— C.  A. 

Ancient  Lights— Act  of  Parliament— Con- 
itruction.] — By  an  act  incorporating  the  Lands 
Clauses  Consolidation  Acts  the  Metropolitan 
Board  of  Works  were  authorised  to  acquire 
specified  land  for  the  purpose  of  (among  others) 
the  G.  street  improvement,  and  to  purchase 
casements  over  such  land.  By  s.  33  of  their 
act  they  were  required  to  sell  or  let  specified 
portions  of  the  land  for  the  construction  and 
maintenance  of  artisans'  dwellings,  so  that  the 
land  should  be  cleared  of  existing  houses  by 
degrees  and  a  minimum  number  of  dwellings 
should  be  provided.  By  an  amendment  act  the 
bond  were  required  to  devote  three  plots  of 
land,  the  subject  of  the  G.  improvement,  to 
provide  a  minimum  number  of  artizans'  dwell- 
ings, and  s.  33  of  the  principal  act  was  repealed 
with  respect  to  the  G.  improvement  : — Held 
that  provisions  as  to  selling  and  letting  similar 
to  those  contained  in  s.  33  of  the  principal  act 
were  implied  by  the  amendment  act : — That  an 
adjoining  owner  had  no  right  to  an  injunction 
to  restrain  a  tenant  of  the  board  from  obstruct- 
ing ancient  lights  by  building  artizans'  dwellings 
on  one  of  the  plots  of  land  devoted  to  that 
Pnrpose,  but  that  his  right  was  to  compensation 
from  the  board  under  s.  68  of  the  Lands  Clauses 
Consolidation  Act,  1845;  and  that  the  board 
amid  not  impose  on  their  tenant  a  liability  to 
be  restrained  from  building  the  artizans'  dwell- 
ings so  as  to  obstruct  access  of  light  to  ancient 
lights.  Wigram  v.  Fryer,  36  Ch.  P.  87 ;  66 
L.  J.,  Ch.  1098  ;  57  L.  T.  266  ;  36  W.  R.  100— 
North,  J. 


2.  SETTLING    AMOUNT   AND    PRACTICE) 

THEREON. 

Injunction  to  restrain  Proceedings.]  —  The 
lessee  of  a  ferry  served  a  notice  on  a  railway 
company  on  behalf  of  himself  and  his  lessors 
claiming  compensation  for  injury  to  the  ferry, 
tod  requiring  the  dispute  to  be  submitted  to 
arbitration  under  the  Lands  Clauses  Act.  The 
lessois  had  not  given  authority  to  use  their 
ntAes ;  the  act  of  the  railway  company  provided 
for  compensating  the  lessors  of  the  ferry,  but  did 
not  mention  their  lessee ;  and  the  notice  claimed 
one  lamp  sum  withoutdistinguishing  the  interests 
<*  the  lessors  and  the  lessee.  The  railway  com- 
pany brought  an  action  for  an  injunction  to  re- 
*tain  the  lessee  from  proceeding  to  arbitration 
Knder  the  notice : — Held,  that  a  proceeding  in 
the  name  of  a  person  who  had  given  no  authority 
°nght  to  be  stayed,  and  that  an  injunction  ought 
to  be  granted,  the  unauthorised  use  of  the  name 
of  the  lessors  distinguishing  the  case  from  North 
L**do*  Railway  v.  Great  Northern  Railway 
OLi  B.  D.  30)  :— But  held,  on  anneal,  that 
Jhon^h  the  court  in  which  an  action  is  brought 
Jas  jurisdiction  to  stay  proceedings  in  it  if  it 
nss  been  brought  without  authority,  the  court 
has  no  general  jurisdiction  to  restrain  persons 
pom  acting  without  authority,  and  that  an  in- 
junction could  not  be  granted  to  restrain  a  per- 
nn  from  taking  proceedings  out  of  court  in  the 
ttt"«  of  a  person  who  had  given  no  authority  to 
■*  it    London  and    Blaekwall   Railway  v. 


Cross,  31  Ch.  D.  864  ;  65  L.  J.,  Ch.  313 ;  64 
L.  T.  309  ;  34  W.  R.  201— C.  A. 

Arbitrator  neglecting  to  act— Power  of  other 
Arbitrator  to  proceed  ez  parte.]— Where  arbi- 
trators have  been  appointed  under  s.  26  of  the 
Lands  Clauses  Act,  1845,  and  one  arbitrator 
refuses  or  neglects  for  seven  days  to  concur  in 
the  appointment  of  an  umpire,  the  other  arbi- 
trator nas  power,  under  s.  30  of  the  act,  to 
proceed  ez  parte  to  make  an  award,  and  the 
previous  appointment  of  an  umpire  is  not  in 
such  a  case  a  condition  precedent  to  the  ez  parte 
proceedings.  Shepherd  v.  Norwich  (Mayor),  30 
Ch.  D.  553 ;  64  L.  J.,  Ch.  1050 ;  53  L.  T.  251 ; 
33  W.  R.  841— North,  J. 

Settlement  of  Amount  by  Justices— Limita- 
tion of  Time.] — The  determination  by  justices 
under  s.  24  of  the  Lands  Clauses  Act,  1845,  of 
the  compensation  to  be  paid  by  a  railway  com- 
pany to  a  landowner  for  naving  in  the  construc- 
tion of  the  railway  injuriously  affected  his  land, 
is  not  an  order  of  the  justices  for  the  payment  of 
money  within  8. 11  of  11  &  12  Vict.  c.  43  (which 
limits  the  time  for  making  a  complaint  to  siz 
months  from  the  time  when  the  matter  of  such 
complaint  arose),  and  therefore  the  justices  have 
jurisdiction  under  s.  24  of  the  Lands  Clauses  Act, 
1845,  to  hear  and  determine  the  question  of  such 
disputed  compensation,  although  the  application 
be  made  more  than  six  months  after  the  land 
has  been  so  injuriously  affected.  Edmundson, 
Jn  re  (17  Q.  B.  67),  overruled.  Reg.  v.  Edwards, 
13  Q.  B.  D.  586 ;  53  L.  J.,  M.  O.  149 ;  51  L.  T. 
586  ;  49  J.  P.  117— C.  A. 

Form  of  Warrant  to  Jury — Notice  and  Counter- 
notice.]— The  Great  Eastern  Railway  Act,  1882, 
contained  a  clause  common  to  most  railway  acts 
of  recent  years,  providing  that,  notwithstanding 
s.  92  of  the  Lands  Clauses  Act,  the  company- 
might  take  a  portion  of  the  lands,  buildings,  and 
manufactories  in  the  schedule  without  being 
compelled  to  take  the  whole,  "  if  such  portion 
can,  in  the  judgment  of  the  jury,  arbitrators,  or 
other  authority  assessing  or  determining  the 
compensation  under  that  act,  be  severed  from 
such  properties  without  material  detriment 
thereto."  The  company  gave  to  the  plaintiffs 
the  usual  notice  to  treat  for  a  portion  of  the 
premises  occupied  by  them  as  a  confectionery 
manufactory.  The  plaintiffs  gave  a  counter- 
notice  requiring  the  company  to  take  the  whole. 
The  company  issued  a  warrant  to  the  sheriff  to 
summon  a  jury  to  determine  the  amount  of 
compensation  to  be  paid  by  them  for  the  portion 
comprised  in  their  original  notice.  The  plaintiffs 
gave  the  company  notice  that  they  should  raise 
the  question  whether  that  portion  could  be 
severed  without  material  detriment  to  the  pro- 
perty. A  dispute  having  arisen  whether  in  this 
state  of  things  the  company  would  be  bound  to 
take  the  whole  if  the  jury  decided  against  them 
on  the  question  of  severance,  the  plaintiffs 
brought  an  action  and  moved  for  an  injunction 
to  restrain  the  company  from  proceeding  further 
on  their  warrant,  unless  and  until  they  should 
have  consented  to  take  the  whole  of  the  property 
if  the  jury  decided  the  portion  could  not  be 
severed  without  material  detriment : — Held,  that 
the  company  could  not  be  deprived  of  their 
right,  if  the  jury  decided  against  them,  to 
abandon  their  notice  to  treat  altogether,  but 

O  O 


1128 


LANDS    CLAUSES   ACT— Purchase  Money,  dte. 


1124 


that  the  warrant  should  have  raised  two  issues : 
(1)  whether  the  portion  could  be  severed  with- 
out serious  detriment  to  the  property ;  (2)  if  so, 
the  amount  of  compensation  to  be  paid  by  the 
company,  including  damage  for  severance.  Mor- 
rison v.  Great  Eastern  Railway,  53  L.  T.  384 — 
Pearson,  J. 

Inquisition  —  Excessive  Jurisdiction  —  Mis- 
direction— Certiorari.] — Money  spent  bona  fide 
on  land  is  not  conclusive  evidence  as  to  the 
value  of  the  land;  it  is  only  evidence  to  be 
taken  into  consideration  in  ascertaining  the  value, 
and  may  be  regarded  or  disregarded  when  the 
land  is  taken  compulsorily.  At  the  hearing  of 
an  inquisition  held  for  the  purposes  of  ascer- 
taining and  determining  the  value  of  the  land 
taken  under  the  Lands  Clauses  Act,  1845,  the 
high  bailiff  used  somewhat  loose  language,  which 
might  lead  one  to  infer  that  he  told  the  jury  to 
disregard  the  amount  spent  bona  fide  by  the 
claimants  on  the  land  and  premises  in  question  : 
— Held,  that  the  fact  was  not  sufficient  in  itself 
to  entitle  the  claimants  to  a  writ  of  certiorari  to 
bring  up  the  inquisition  that  it  may  be  quashed, 
inasmuch  as  the  jury  had  had  all  the  facts  before 
them,  and  had  had  an  opportunity  of  viewing 
the  land,  before  giving  their  verdict.  Streatham 
Estate*  Company  v.  Public  Works  Commissioners, 
52  J.  P.  615— D. 

Costs  —  Verdict  of  Jury  —  "Sum  previously 
offered."] — By  s.  38  of  the  Lands  Clauses  Conso- 
lidation Act,  1845,  promoters,  before  issuing  their 
warrant  for  causing  a  jury  to  be  summoned  in 
cases  of  disputed  compensation,  shall  give  not 
less  than  ten  days'  notice  of  their  intention  to 
summon  a  jury  to  the  other  party,  and  in  such 
notice  shall  state  what  sum  of  money  they  are 
willing  to  give  for  the  interest  in  the  lands 
sought  to  be  purchased  from  him,  and  for  the 
damage  to  be  sustained  by  him  by  the  execution 
of  the  works ;  and  by  s.  51,  on  every  such 
inquiry  before  a  jury  where  the  verdict  of  the 
jury  shall  be  given  for  a  greater  sum  "  than  the 
sum  previously  offered"  by  the  promoters,  all 
the  costs  of  the  inquiry  shall  be  borne  by  the 
promoters,  but  if  the  verdict  be  given  for  a  less 
sum,  the  costs  shall  be  borne  equally  between 
the  parties  in  the  manner  specified  in  that 
section.  In  a  proceeding  to  take  and  purchase 
the  claimant's  lands  under  the  Lands  Clauses 
Consolidation  Act,  1845,  the  promoters,  on  the 
9th  of  March,  gave  him  the  notice  required  by 
s.  38,  and  stated  that  they  were  willing  to  give 
him  6002.  as  and  for  purchase-money  and  com- 
pensation. On  the  19th  of  March  the  promoters 
served  a  second  notice  upon  the  claimant  that 
they  were  willing,  and  thereby  offered,  to  pay 
9002.  as  purchase-money  and  compensation.  This 
notice  did  not  refer  to  the  previous  one.  Neither 
offer  was  accepted  by  the  claimant,  and  on  the 
29th  of  March  the  promoters  issued  their  warrant 
for  causing  a  jury  to  be  summoned,  who  assessed 
the  sum  to  which  the  claimant  was  entitled  at 
750Z. : — Held,  first,  that  in  cases  to  which  s.  38 
was  applicable,  the  words  "  the  sum  previously 
offered  in  s.  51  applied  only  to  an  offer  made 
under  s.  38 ;  secondly,  that  the  promoters  were 
not  entitled  to  rely  upon  their  second  offer  of 
900Z.  as  an  offer  made  under  s.  38,  and  that  the 
costs  of  the  inquiry  must,  therefore,  be  borne  by 
them.  Reg.  v.  Smith,  or  Westjield  and  Metro- 
politan Railway  Companies,  In  re,  or  Westjield 


v.  Metropolitan  District  Railway,  12  Q.  B.  D. 
481  ;  53  L.  J.,  Q.  B.  115  ;  32  W.  R.  275-D. 

An  offer  made  after  litigation  has  commenced, 
if  it  is  to  have  the  effect  of  avoiding  the  payment 
of  costs  by  an  unsuccessful  party,  must  amount 
in  substance  to  an  offer  of  everything  which  the 
court  eventually  holds  the  successful  party  en- 
titled to.  Birmingham  and  District  Zand  Co. 
v.  London  and  North-  Western  Railway,  36  Ch. 
D.  650 ;  67  L.  J.,  Ch.  121 ;  57  L.  T.  185 ;  36  W. 
R.  414— Kekewich,  J.  Affirmed  in  C.  A.  See 
ante,  col.  1113. 


III.     PURCHASE   MONEY  AND   TOOTS  IV 

COURT. 

1.    IN  GENERAL. 

Unpaid  Purchase-money— -Interest  from  what 
time  payable.] — In  the  case  of  a  compulsory 
purchase  under  the  Lands  Clauses  Consolidation 
Act,  1845,  interest  is  payable  to  the  vendor  by 
the  purchaser  from  the  time  when  possession 
might  have  been  taken,  it  appearing  that  a  good 
title  could  be  shown.  And  the  land  being  sub- 
ject to  mortgage,  interest  is  payable  by  the 
vendor  to  the  mortgagee  in  lieu  of  notice.  Spencer- 
Bell  to  the  London  and  South-  Western  Railway, 
38  W.  R.  771— Chitty,  J. 

Settled  Land  Act— Effect  of.]  — Lands  be- 
longing absolutely  to  a  charity  were  taken  by 
a  public  body,  and  the  purchase-moneypaid  into 
court  under  the  Lands  Clauses  Act : — Held,  that 
the  purchase-money  could  be  dealt  with  under 
the  provisions  of  the  32nd  section  of  the  Settled 
Land  Act,  1882,  as  "  money  liable  to  be  laid  out 
in  the  purchase  of  land  to  be  made  subject  to  a 
settlement."  Byron's  Charity,  In  re,  23  Ch.  D. 
171  ;  53  L.  J.,  Ch.  152  ;  48  L.  T.  515  ;  31  W.  R. 
517— Fry,  J. 

Service  for  Payment  out — On  Landowner— 
Lapse  of  Time.] — In  1867  a  railway  company 
paid  a  deposit  into  court  under  s.  85  of  the  Lands 
Clauses  Act,  in  respect  of  the  interest  of  a  tenant 
for  life  in  certain  settled  lands  required  for  their 
undertaking,  and  took  possession  of  their  lands. 
Shortly  afterwards  the  company  purchased  the 
fee  simple  of  the  lands  from  the  trustees  of  the 
settlement,  and  the  conveyance  to  which  the 
tenant  for  life  was  a  party  was  duly  executed. 
The  money  was  left  in  court,  and  in  1884  was 
included  in  the  return  issued  from  the  Pay- 
master's office  under  R.  S.  C.  Fund  Rules,  1884, 
r.  101,  of  credits,  which  had  not  been  dealt  with 
for  fifteen  years.  The  tenant  for  life  had  died 
in  1883.  In  1886  the  company  petitioned  for 
the  payment  out  of  the  fund  without  serving  the 
representative  of  the  landowner  : — Held,  that 
service  on  the  landowner  might  be  dispensed 
with,  considering  the  lapse  of  time  since  the 
conveyance.  Lancashire  and  Yorkshire  Rail- 
way, In  re,  55  L.  T.  58 — North,  J. 

On  Official  Trustees  of  Charity.]—** 

Stafford's  Charity,  In  re,  post.  col.  1131. 


2.    PERSONS  ENTITLED  TO. 

Lands  of  Lunatic  not  so  found — Real  or  Per- 
sonal Representatives.]— Sect  7  of  the  Lands 


1125 


LANDS    CLAUSES    ACT— Purchase  Money,  dec. 


1126 


Clauses  Consolidation  Act,  1845,  does  not 
authorise  a  person  of  unsound  mind  to  sell  land 
to  a  company. or  public  body  who  have  statutory 
power  to  take  it ;  the  section  only  authorises 
the  committee  of  a  lunatic  to  sell.  A  public 
body  having  given  notice  under  their  statutory 
powers  to  take  land  belonging  to  a  lady  of 
unsound  mind  not  so  found,  the  value  of  the  land 
was  ascertained  by  two  surveyors,  one  appointed 
by  an  uncle  of  the  lady,  who  purported  to  act  on 
her  behalf,  and  the  other  by  the  public  body ; 
the  sum  thus  ascertained  was  paid  into  court, 
and  the  public  body  took  possession  of  the  land. 
The  lady  afterwards  died  intestate,  being  still  of 
unsound  mind,  and  her  heir-at-law  petitioned 
for  payment  of  the  money  to  him  : — Held,  that 
the  land  had  never  been  converted  into  per- 
sonalty, and  that  the  heir  was  entitled  to  the 
money.  Flamank,  Ex  parte  (1  Sim.  (N.  S.)  260) 
dissented  from.  TugwelU  In  re,  27  Ch.  D.  809  ; 
53  L.  J.,  Ch.  1006  ;  51  L.  T.  83  ;  33  W.  R.  132 
—Pearson,  J. 

Payment  out  of  Small  Sum,] — Where  a  sum 
of  342.  had  been  paid  into  court  under  the  Lands 
Clauses  Act,  1845,  payment  out  was  directed  to 
a  tenant  for  life,  he  undertaking  to  expend  the 
tame  in  lasting  improvements.  Kells  Union,  In 
re,  Smih,  Ex  parte,  21  L.  B.,  Ir.  346— M.  R. 

Trade  Premises  and  Goodwill —Mortgage.] — 
A  public  body  acting  under  the  powers  of  their 
act  and  of  the  Lands  Clauses  Consolidation  Act 
Save  notice  to  the  plaintiff,  who  was  a  tailor,  to 
take  his  house,  which  was  leasehold.  After  some 
negotiation  they  offered  him  4002.,  of  which  1502. 
was  to  be  apportioned  to  his  leasehold  interest, 
and  2502.  to  his  trade  damage  and  personal  ex- 
penses, to  which  the  plaintiff  agreed.  The 
plaintiff  had  mortgaged  his  leasehold  interest 
and  could  not  make  a  good  title.  The  plaintiff 
then  brought  an  action  for  specific  performance 
of  the  agreement,  and  the  defendants  afterwards 
paid  the  4002.  into  court  under  the  26th  section 
of  the  Lands  Clauses  Act,  executed  a  deed-poll, 
and  took  possession : — Held,  that  the  plaintiff 
was  entitled  to  judgment  in  the  action,  and  to 
have  the  2502.  paid  at  once  to  him,  with  interest 
from  the  time  when  the  defendants  took  posses- 
sion. Cooper  v.  Metropolitan  Board  of  Works, 
25  Ch.  D.  472  ;  53  L.  J;,  Ch.  109  ;  50  L.  T.  602  ; 
32  W.  R.  709— C.  A. 

Although  in  some  cases  the  goodwill  of  trade 
premises  passes  to  a  mortgagee,  that  does  not 
*pply  to  a  case  where  the  goodwill  depends  on 
the  personal  skill  of  the  owner.    lb. 

- —  Appropriation  of  Payments.]— A.  was 
entitled  as  tenant  for  life  to  leasehold  premises, 
where  she  carried  on  the  business  of  a  hotel- 
keeper,  with  remainder  to  B.  By  deed  dated 
the  11th  October,  1864,  B.,  in  consideration  of 
1072.  advanced  to  him,  assigned  all  his  interest 
in  the  premises  to  G,  with  a  proviso  that,  in  case 
B.  or  any  of  his  children,  within  three  years 
after  the  accrual  of  B.'s  title,  should  be  desirous 
of  repurchasing,  C.  would  re-assign  the  premises 
on  payment  of  the  said  sum  of  1072.  and  interest 
at  6  percent.  The  South  City  Market  Company, 
bong  a  public  body,  acting  under  the  powers  of 
their  Act,  and  the  Lands  Clauses  Consolidation 
Act,  1845.  and  the  Railway  Clauses  Consolidation 
Act,  1861,  required  these  leasehold  premises. 
The  arbitrator  awarded  a  sum  of    1,2512.,  of 


which  sum  4512.  was  stated  by  the  award  to  be 
for  the  purchase  of  the  interest  of  A.  and  D.  (in 
whom  C.'s  interest  under  the  deed  of  the  11th 
October,  1864,  was  then  vested)  as  lessees,  and 
A.  as  occupier,  and  8002.  awarded  to  the  same 
persons  under  the  heading  "  Compensation  for 
severance  or  other  injury."  A.  and  D.  traversed 
the  award,  and  a  consent  between  the  Company 
and  A.  and  D.  (but  to  which  the.  representatives 
of  B..  who  was  then  deceased,  were  not  parties), 
was  made  a  rule  of  the  Queen's  Bench  Division, 
by  which  the  award  was  increased  by  a  sum  of 
1,2492.,  of  which  sum  8002.  was  stated  by  the 
consent  to  be  for  trade  loss  in  respect  of  the 
property,  and  the  consent  order  further  directed 
that  of  the  sum  of  1,2512.  lodged  by  the  Company, 
9012.  should  be  dealt  with  as  representing  the 
leasehold  interest  in  the  premises,  and  the  residue, 
3502.,  together  with  the  further  sum  of  1,2492., 
payable  by  the  Company,  should  be  paid  to  A.  in 
respect  of  her  trade  disturbance  in  the  premises. 
A.  having  claimed  the  whole  of  the  8002.,  and 
7992.  increase  thereon,  under  the  consent  order : — 
Held,  that  the  sum  of  8002.  should  (under  the 
circumstances)  be  deemed  part  of  the  compensa- 
tion for  taking  of  the  premises  and  not  in  respect 
of  any  personal  grievance  of  A.,  and  that  A. 
(under  the  circumstances  of  the  case)  was  entitled 
to  the  7992.  absolutely.  South  City  Market  Com- 
pany, In  re,  Bergin,  Ex  parte,  13  L.  R.,  Ir.  245 
— V.-C. 

Advene  Claimants— Claim  of  the  Crown.]— A 
railway  company,  under  the  powers  of  its  act, 
gave  notice  to  a  lord  of  the  manor  to  take  a 
piece  of  land  on  the  seashore,  which  he  claimed 
as  part  of  the  waste  of  his  manor.  The  purchase- 
money  was  assessed  by  arbitration,  but  an  adverse 
claim  having  been  made  by  the  Crown,  the  com- 
pany paid  the  purchase-money  into  court  under 
the  76th  section  of  the  Lands  Clauses  Act.  The 
Crown  filed  an  information  against  the  lord  of 
the  manor  claiming  the  land,  together  with 
other  land,  as  part  of  the  foreshore.  The  lord  of 
the  manor  having  filed  a  petition  for  payment 
of  the  purchase-money  to  him  : — Held,  that  as 
the  Crown  could  not  be  brought  before  the  court 
under  the  Lands  Clauses  Act  to  contest  the 
claim  of  the  petitioner,  the  petition  ought  to 
stand  over  till  the  information  had  been  heard. 
Lowestoft  (Manor  of),  In  re,  Reete,  Ex  parte, 
24  Ch.  D.  253  ;  52  L.  J.,  Ch.  912  ;  49  L.  T.  523  ; 
32  W.  R.  309— C.  A. 

Quaere,  as  to  the  course  which  ought  to  have 
been  pursued  if  the  rival  claimant  had  been  a 
subject,    lb. 

Person  "becoming  absolutely  entitled"  — 
Trnsteea  with  Power  of  Bale.  ]— A  share  of  stock 
in  court,  which  represented  money  paid  into 
court  by  a  railway  company  for  the  purchase  of 
land  taken  under  their  statutory  powers,  had 
been  assigned  by  the  beneficial  owner  to  trus- 
tees, on  trust  for  sale  and  conversion,  at  the  re- 
quest in  writing  of  herself  during  her  life  and 
afterwards  at  the  discretion  of  the  trustees,  and 
to  hold  the  proceeds  on  certain  trusts  : — Held, 
that,  the  settlor  joining  in  the  petition,  and  the 
company  not  objecting,  the  share  might  be  trans- 
ferred to  the  trustees  as  persons  "  becoming  ab- 
solutely entitled "  within  the  meaning  of  s.  69 
of  the  Lands  Clauses  Consolidation  Act,  1845. 
Ward's  Estate,  In  re,  28  Ch.  D.  100  ;  54  L.  J., 
Ch.  231  ;  33  W.  R.  149— Pearson,  J. 

O  O  2 


1127 


LANDS    CLAUSES    ACT— Purchase  Money,  dc. 


112ft 


Charity— Capital  Expenditure.]— A  petition 
was  presented  by  the  parson,  churchwardens, 
and  parishioners  of  a  certain  parish  for  payment 
out  of  court  to  them  of  514Z.,  which  had  been 
paid  in  by  the  respondents,  the  Commissioners 
of  Sewers,  in  respect  of  certain  land  taken  by 
them  from  the  petitioners.  The  petitioners  pro- 
posed to  expend  1,000/.  in  rebuilding  the  north 
porch  of  the  parish  church,  and  they  petitioned 
that  the  5142.  should  be  paid  out  to  them  upon 
their  undertaking  to  apply  that  sum  in  rebuild- 
ing the  porch.  The  petitioners  had  no  power  of 
sale,  and  the  consent  of  the  Charity  Commis- 
sioners to  the  application  had  not  been  obtained. 
The  respondents  did  not  oppose  the  application  : 
— Held,  that  the  514/.  might  be  paid  out  to  the 
petitioners  on  the  chief  clerk's  certificate,  that  at 
least  that  sum  had  been  spent  in  the  rebuilding, 
the  respondents  to  pay  the  costs.  St.  Alphege 
(Parson),  In  re,  56  L.  T.  314— Chitty,  J. 

A  petition  was  presented  by  a  company,  as 
governors  of  a  charity,  for  payment  out  of  the 
sum  of  1,000/.  which  had  been  paid  into  court  to 
the  account  of  the  company,  under  the  provisions 
of  the  Lands  Clauses  Consolidation  Act,  1845,  in 
respect  of  land  taken  for  the  purposes  of  a 
railway.  The  land  formed  part  of  an  estate 
belonging  to  the  company,  the  rentals  and 
profits  whereof  were  applied  for  the  purposes 
of  the  charity.  The  part  of  the  estate  which 
remained  in  the  possession  of  the  company  was 
let  by  them  on  a  building  lease,  and  the  com- 
pany had,  out  of  moneys  in  their  hands  repre- 
senting income  of  the  charity,  expended  1,000/. 
in  enabling  the  builder  to  improve  the  lands 
comprised  in  the  building  lease  by  buying  up 
certain  rights  over  roads  claimed  by  a  neigh- 
bouring landowner.  This  expenditure  had  been 
sanctioned  by  the  Charity  Commissioners,  and 
they  approved  the  present  application,  although 
they  gave  no  express  consent,  because  the  moneys 
were  under  the  control  of  the  court : — Held, 
that  the  Charity  Commissioners  had  practically 
authorised  this  outlay  as  capital  expenditure ; 
and  that  the  company  were  entitled  to  have  the 
money  paid  out,  as  being  absolutely  entitled 
thereto.  Haberdasher*'  Company,  Ex  parte,  55 
L.  T.  758— Chitty,  J. 

Sale  of  Land  not  Superfluous.]— The  Metro- 
politan Board  of  Works  in  the  exercise  of  com- 
pulsory powers  purchased  land  of  the  Chelsea 
Waterworks  Company,  which  was  not  super- 
fluous land,  and  paid  the  purchase-money  into 
court.  On  petition  to  pay  the  money  out  to  the 
waterworks  company  : — Held,  first,  that  the 
money  was  rightly  paid  into  court ;  and, 
secondly,  that  inasmuch  as  the  money  could 
not  be  applied  to  any  of  the  purposes  mentioned 
in  s.  69  of  the  Lands  Clauses  Act,  1845,  the 
waterworks  company  was  absolutely  entitled  to 
the  money.  Clielsea  Waterworks  Company,  In 
re,  56  L.  J.,  Ch.  640  ;  56  L.  T.  421— Kay,  J. 


3.  PETITION    OR    SUMMONS. 

Payment  out — Permanent  Investment] — In 
applications  for  payment  out  of  court  and  in- 
vestment under  the  Settled  Land  Act,  1882,  of 
funds  in  court  representing  the  purchase-money 
of  lands  taken  under  the  provisions  of  the  Lands 
Clauses  Act,  1845,  the  court  has  a  discretion 
under  the  Rules  of  Supreme  Court,  1883,  Ord. 


LXX.  r.  1,  and,  where  an  application  by  petition 
is  cheaper  and  more  expeditious  than  by 
summons,  will  not  disallow  the  costs  of  a  peti- 
tion, although  the  proceeding  falls  within  the 
Rules  of  the  Supreme  Court,  1883,  Ord.  LY.  r.  2, 
sub-s.  7,  as  business  to  be  transacted  in  chambers. 
Tn  such  cases,  however,  the  option  of  proceeding 
by  petition  or  summons  is  at  the  applicant's 
risk.  Bethlehem  and  Bridewell  Hospital*,  In 
re,  30  Ch.  D.  541  ;  54  L.  J.,  Ch.  1143  ;  53  L.  T. 
658  ;  34  W.  R.  148— Chitty.  J.  See  also  Stafford's 
Charity,  In  re,  post,  col.  1131. 


Alteration    of    Buildings.]— Upon    an 


application  by  the  sole  surviving  trustee  under  a 
will  that  1,330/.,  part  of  a  sum  of  2,100/.  in  the 
Bank  of  England,  being  the  purchase  money  and 
compensation  for  lands  vested  in  him  and  taken  by 
the  Bradford  Corporation  under  the  Lands  Clauses 
Consolidation  Act,  1846,  and  the  Bradford  Water, 
&c.,  Act,  1881,  might  be  paid  to  the  applicant, 
he  undertaking  to  apply  it  in  converting  a 
dwelling-house  and  two  shops  into  three  shops, 
and  that  the  balance,  770/.,  might  be  invested 
in  Three  per  Cent.  Annuities  : — Held,  that  the 
application  did  not  come  within  the  meaning  of 
Ord.  LV.,  r.  2,  sub-s.  7,  of  the  Rules  of  Court, 
1883,  and  might  be  made  by  petition.  Ear- 
greave's  Trust,  In  re,  Bradford  (Mayor),  Ex 
parte,  58  L.  T.  367— Kay,  J. 

Additional  Buildings.] — Upon  an  appli- 


cation by  the  master  and  fellows  of  a  college 
that  certain  funds  in  court  amounting  to  about 
7,000/.,  and  representing  the  purchase-moneys 
of  lands  belonging  to  the  college,  and  taken  by 
a  railway  company  under  the  Lands  Clauses 
Consolidation  Act,  1845,  might  be  paid  to  the 
applicants,  they  undertaking  to  apply  it  in 
building  two  residences  as  an  addition  to  the 
college : — Held,  that  the  application  was  not  an 
"  application  for  interim  and  permanent  invest- 
ment, and  for  payment  of  dividends  "  within  the 
terms  of  Ord.  L  V.  r.  2,  sub-s.  7,  of  the  Rules  of 
Court,  1883,  and  might  be  made  by  petition, 
Jesus  College,  Cambridge,  Ex  parte,  50  L.  T.  585 
—Kay,  J. 


Amount    not   exceeding    £1,000.]— An 


application  for  payment  out  of  court  to  a  person 
absolutely  entitled  of  a  sum  of  cash  not  ex- 
ceeding 1,000/.  paid  in  under  the  Lands  Clauses- 
Consolidation  Act,  1845,  is  rightly  made  by 
summons,  not  by  petition.  Madgxcick,  In  ret 
25  Ch.  D.  371  ;  53  L.  J.,  Ch.  333  ;  49  L.  T.  560 ; 
32  W.  R.  512— V.-C.  B. 

Rule  2  (7)  of  Ord.  LV.  of  the  Rules  of  the 
Supreme  Court,  1883,  though  it  affects  the  juris- 
diction, and  not  merely  the  procedure  of  the 
court,  is  not  ultra  vires,  being  in  accordance 
with  the  power  conferred  by  18  &  19  Vict,  c  136, 
8. 16,  and  in  fact  intended  to  be  made  under  the 
powers  of  that  act,  as  well  as  under  those  con- 
ferred by  the  Judicature  Acts.  London  (Mayor), 
Ex  parte,  25  Ch.  D.  384  ;  53  L.  J.,  Ch.  6 ;  49 
L.  T.  437  ;  32  W.  R.  87— Kay,  J. 

The  new  rules  do  not  authorise  a  judge  at 
chambers  to  order  payment  out  of  court  of  money 
paid  in  under  the  Lands  Clauses  Act,  1845. 
Calton's  Will  or  Trusts,  In  re,  49  L.  T.  398  ;  32 
W.  R.  150— Pearson,  J. 

But  on  a  subsequent  day,  on  the  case  being 
again  mentioned,  it  was  held  that  such  an  appli- 
cation must  in  future  be  by  summons,  and  not 


1129 


LANDS    CLAUSES    ACT— Purchase  Money,  dc. 


1180 


by  petition.  lb.  25  Ch.  D.  240 ;  63  L.  J.,  Ch. 
329 ;  49  L.  T.  566  ;  32  W.  R.  167— Pearson,  J. 

The  general  words  of  Old.  LV.  r.  2,  sub-s.  2, 
not  being  cat  down  by  sub-s.  7  of  the  same  rule, 
applications  for  payment  ont  of  sums  not  exceed- 
ing 1,0002.,  paid  in  under  the  Lands  Clauses  Act, 
must  now  be  made  by  summons  in  chambers  and 
not  by  petition.  Maidstone  and  Ashford  Rail- 
«sy,  7m  re,  and  Bala  and  Festiniog  Railtvay, 
In  re,  26  Ch.  D.  168  ;  53  L.  J.,  Ch.  127  ;  49  L.  T. 
777 ;  32  W.  R  181— Chitty,  J. 

Application  was  made  by  summons  for  pay- 
ment out  of  court  of  a  sum  not  exceeding  1,000J., 
liberated  by  the  death  of  an  annuitant.  Orders 
of  court  had  been  made  from  time  to  time  direct- 
ing payment  to  the  present  applicant  of  part  of 
the  same  funds  already  released  by  the  death  of 
another  annuitant,  and  also  of  the  surplus  in- 
terest, after  satisfying  the  remaining  annuities : 
—Held,  that  there  had  been  an  order  declaring 
his  righto  within  Old.  LV.  r.  2,  sub-s.  1,  and  that 
the  application  was  properly  made  by  summons, 
and  not  by  petition.  Brandram,  In  re,  25  Ch.  D. 
366 ;  63  L.  J.,  Ch.  331  ;  49  L.  T.  558  ;  32  W.  R. 
160-V.-C.  B. 

Sealing  Summons.] — A  summons  by  a  railway 
company  for  payment  out  of  a  sum  of  less  than 
l,00OJ.  to  their  secretary,  was  directed  to  be 
sealed  in  analogy  to  the  practice  in  case  of  peti- 
tions. Maidstone  and  Ashford  Railway,  In  re, 
attd  Bala  and  Festiniog  Railway,  In  re,  supra. 


4.    COSTS. 

Jurisdiction  of  Court — Incorporation  of  Lands 
daises  Act  with  Special  Acta j — Commissioners 
were  incorporated  by  3  &  4  Vict.  c.  87  (1840), 
for  the  purpose  of  taking  lands  and  carrying  out 
thereon  certain  public  works,  and  by  9  &  10  Vict, 
c  34  (1846),  powers  to  construct  a  new  street 
were  conferred  upon  such  commissioners,  and  it 
was  enacted  that  all  and  singular  the  enact- 
ments and  provisions  of  the  act  of  1840  should 
extend  to  the  new  improvements  as  if  they  had 
been  authorised  by  the  former  act.  Neither  of 
these  acts  contained  any  provision  for  payment 
by  the  commissioners  of  the  costs  of  applications 
for  payment  ont  of  purchase-moneys  in  court  in 
respect  of  lands  taken  under  the  powers  of  the 
acta.  On  petition  for  payment  out  of  court  of 
purchase-money  of  lands  taken  by  the  commis- 
«wncrs :— Held  (following  Cherry's  Settled 
&tate$,  In  re  (4  D.  F.  &  J.  332) ),  that  the 
Lands  Clauses  Consolidation  Act,  1845,  could 
not  be  treated  as  incorporated  with  the  special 
sets  (3  &  4  Vict.  c.  87,  and  9  &  10  Vict.  c.  34), 
*>  as  to  make  the  commissioners  liable  to  pay 
the  costs  of  the  petition  for  payment  out. 
Dictum  of  Lord  Esher,  M.R.,  in  Wood's  Estate, 
In  re  (31  Ch.  D.  607,  617,  618),  disapproved. 
MiUt'  Estate.  In  re,  34  Ch.  D.  24  ;  56  L.  J.,  Ch. 
«0;  55  L.  T.  465  ;  36  W.  R.  65 ;  51  J.  P.  151— 
CA. 

Hie  Judicature  Acts  and  Rules  of  Supreme 
Court,  1883,  OnL  LXV.  r.  1,  do  not  enable  the 
tout  or  a  judge  to  order  costs  to  be  paid  by 
persons  who  before  the  acts  came  into  opera- 
tion could  not  have  been  ordered  to  pay  them  ; 
the  effect  and  intention  of  the  acts  and  orders 
being  not  to  give  any  new  jurisdiction  to  award 
costs,  but  only  to  regulate  the  mode  in  which 
costs  are  to  be  dealt  with  in  cases  where  the 


court  antecedently  had  jurisdiction,  either 
original  or  statutory,  to  award  costs.  Foster 
v.  Great  Western  Railway  (8  Q.  B.  D.  616) 
followed.  Mercers'  Company,  Ex  parte  (10  Ch. 
D.  481)  questioned.    lb. 

The  Act  18  &  19  Vict,  c  95,  empowered  the 
Commissioners  of  Works  and  Public  Buildings, 
whom  it  incorporated  for  the  purpose,  to  take 
land  compulsorily  for  the  purpose  of  building 
public  offices.  8.  9  provided  that  certain  sec- 
tions (including  s.  49)  of  a  previous  act  (3  &  4 
Vict.  c.  87),  which  had  empowered  the  Com- 
missioners to  execute  other  works,  should  be 
deemed  to  be  repeated  in  the  later  act,  with  the 
alterations  necessary  to  make  the  same  applic- 
able to  its  purposes.  S.  11  provided  that  any 
purchase-money  payable  into  the  bank  should  be 
paid  to  the  account  of  the  accountant-general 
of  the  Court  of  Chancery,  and  should  be  applied 
under  the  directions  of  that  court  in  like  manner 
as  moneys  were  by  the  earlier  act  directed  to  be 
applied  under  the  directions  of  the  Court  of 
Exchequer,  "  with  such  power  to  the  Court  of 
Chancery  with  regard  to  costs  "  as  by  the  earlier 
act  were  vested  in  the  Court  of  Exchequer. 
S.  49  of  the  earlier  act  provided  that,  when  pur- 
chase-money was  required  to  be  paid  into  the 
bank  in  the  name  of  the  accountant-general  of 
the  Court  of  Exchequer,  and  to  be  reinvested  in 
land,  it  should  be  lawful  for  the  court  to  order 
the  expenses  of  all  purchases  from  time  to  time 
to  be  made  under  the  act  to  be  paid  by  the  com- 
missioners. This  act  contained  no  other  pro- 
vision as  to  costs : — Held,  that  the  effect  of  these 
enactments  was  to  introduce  the  incorporated 
sections  of  the  earlier  act  into  the  later  act,  just 
as  if  they  had  been  enacted  in  it  for  the  first 
time,  and  that,  consequently,  the  later  act,  with 
those  sections  in  it,  must  be  treated  as  having 
been  passed  after  the  Lands  Clauses  Consolida- 
tion Act,  1845.  Therefore,  the  provisions  of 
s.  80  of  the  Lands  Clauses  Act  were,  by  virtue 
of  s.  1  of  that  act,  incorporated  with  the  Act  of 
18  &  19  Vict.  c.  95,  and  the  court  has  power  to 
order  the  commissioners  to  pay  the  costs  of  an 
application  for  the  payment  out  of  purchase- 
money  to  the  persons  who  had  become  abso- 
lutely entitled  to  the  land  in  respect  of  which 
the  money  had  been  paid  in.  Cherry's  Settled 
Estates,  In  re  (4  D.  F.  &  J.  332)  disapproved. 
Wood's  Estate,  In  re,  Commissioners  of  Works 
and  Building  ft,  Ex  parte,  31  Ch.  D.  607 ;  55  L. 
J.,  Ch.  488 ;  54  L.  T.  146  ;  34  W.  R.  375— C.  A. 

A  private  charity  incorporated  by  Royal 
charter,  and  having,  under  a  subsequent  Bpecial 
act,  power  to  take  land  compulsorily,  is  not  an 
"undertaking  or  work  of  a  public  nature" 
within  the  meaning  of  b.  1  of  the  Lands  Clauses 
Consolidation  Act,  1845 ;  and,  therefore,  in  the 
absence  of  express  provision,  s.  80  of  the  last- 
named  act  (as  to  costs)  is  not  incorporated  with 
the  charity's  special  act.  Sion  College,  In  re, 
London  (Mayor),  Ex  parte,  57  L.  T.  743 — C.  A. 

Purchase  of  Charity  Lands— Official  Trustee.] 
— A  scheme  for  the  regulation  of  a  certain 
charity  contained  provisions  that  the  legal  estate 
in  the  lands  belonging  to  the  charity,  and  all 
terms,  estates,  and  interest  therein,  should  be 
vested  in  the  "  Official  Trustee  of  Charity  Lands  " 
and  his  successors,  in  trust  for  the  charity,  with 
the  intent  that  such  lands  might  be  managed 
and  administered  by  the  trustees  of  the  charity 
subject  to  and  in  conformity  with  the  provisions 


1181 


LANDS    CLAUSES    ACT— Purchase  Money,  dtc. 


1132 


of  the  scheme  ;  and  that  all  stock  in  the  public 
funds  and  other  securities  should  be  transferred 
to  and  vest  in  the  "  Official  Trustees  of  Charitable 
Funds,"  by  whom  the  dividends  and  income 
arising  therefrom  should  be  from  time  to  time 
paid  to  the  local  trustees  or  their  order.  The 
Metropolitan  Board  of  Works  took  the  lands  of 
the  charity  under  their  statutory  powers,  and 
paid  the  purchase-money  into  court.  The  trus- 
tees then  presented  a  petition  that  the  fund  in 
court  might  be  invested  in  Consols,  and  when  so 
invested  carried  over  to  the  account  of  the 
Official  Trustees  of  Charitable  Funds,  and  that 
the  dividends  might  be  paid  to  the  treasurer  for 
the  time  being  of  the  charity.  The  title  to  the 
lands  sold  had  been  approved  by  the  purchasers, 
but  the  conveyance  to  the  Metropolitan  Board  of 
Works  had  not  yet  been  executed.  Therefore, 
the  legal  estate  remained  vested  in  the  Official 
Trustee  of  Charity  Lands  under  the  scheme. 
The  Official  Trustees  of  Charity  Lands  and 
Charity  Funds  were  served  with  the  petition, 
and  a  question  arose  whether  their  costs  should 
be  paid  by  the  Metropolitan  Board  of  Works. 
Another  question  was,  whether  the  application 
should  have  been  by  petition  or  by  summons : — 
Held,  that  an  order  ought  to  be  made  for  an 
interim  investment  and  payments  of  dividends 
as  asked ;  and  that,  having  regard  to  the  pro- 
visions of  the  scheme,  the  petitioners  were  justi- 
fied in  proceeding  by  petition,  and  were  also 
justified  in  serving  the  official  trustees.  Stafford'* 
Charity,  In  re,  57  L.  T.  846— -Chitty,  J. 

Lessor  and  Lessee.]— A  petition  was  presented 
by  the  lessee  of  certain  property  compulsorily 
taken  by  a  railway  company  for  payment  out 
of  court  of  a  fund  representing  his  compensation 
under  an  award  made  in  Nov.  1884.  At  the 
date  of  the  award  rent  was  due  to  the  lessor, 
who  had  the  usual  right  of  re-entry  in  default  of 
payment.  At  the  date  of  payment  of  the  fund 
into  court  the  railway  company  had  not  com- 
pleted the  purchase  of  the  lessor's  interest. 
Subsequently  to  the  purchase  of  his  interest  the 
lessor  gave  notice  to  the  railway  company  of  his 
claim  to  have  his  unpaid  rent  paid  out  of  the 
fund  in  court  claimed  by  the  lessee.  Accordingly 
he  received  notice  of  the  presentation  of  the 
petition  from  the  railway  company,  and  ap- 
peared at  the  hearing,  although  not  served  nor 
made  a  formal  respondent  to  the  petition.  His 
claim  was  settled  by  the  petitioners,  but  the 
question  arose  as  to  whether  or  not  the  railway 
company  should  pay  his  costs  : — Held,  that  the 
right  of  re-entry  was  an  incumbrance  on  the 
leasehold  interest,  and  therefore  on  the  fund  in 
court,  and  notice  having  been  given  to  the  rail- 
way company  by  the  lessor,  he  was  rightly 
before  the  court  for  their  protection,  and  they 
must  pay  his  costs.  London  Street,  Greenwich, 
and  London,  Chatham,  and  Dover  Railway,  In 
re,  57  L.  T.  673— Chitty,  J. 

Lands  vested  in  Trustee.] — Land  which  was 
vested  in  a  sole  trustee,  and  which  was  the  sub- 
ject-matter of  an  action,  was  taken  by  the 
Metropolitan  Board  of  Works  under  their  com- 
pulsory powers,  the  purchase-money  was  paid 
into  court,  and  the  land  conveyed  by  the  trustee 
to  the  board.  Afterwards,  a  petition  was  pre- 
sented by  the  beneficiaries  for  the  transfer  of 
the  purchase-money  to  the  credit  of  the  action, 
and  served  on  the  trustee,  who  appeared  and 


asked  for  his  costs  : — Held,  that  the  trustee  was 
entitled  to  appear,  and  that  the  board  must  pay 
his  costs.  English'*  Trusts,  In  re,  39  Ch.  D.  656  ; 
57  L.  J.,  Ch.  1048  ;  60  L.  T.  44  ;  37  W.  B.  191- 
North,  J. 

Incumbrancers  on  Fund  after  Payment  into 
Court.] — After  payment  into  court  by  a  com- 
pany of  the  purchase-money  of  land  belonging 
to  a  tenant  for  life  and  remaindermen,  some  of 
the  latter  mortgaged  their  reversionary  interests 
in  the  fund.  Upon  the  death  of  the  tenant  for 
life,  the  owners  of  the  fund  and  their  incum- 
brancers presented  a  petition  for  payment  of  the 
fund  out  of  court : — Held,ithat  the  company  were 
not  liable  to  pay  the  costs  incurred  by  the  mort- 
gagees in  proving  their  incumbrances.  Greet 
Western  Railway,  Ex  parte,  GougK's  Trusts,  In 
re,  24  Ch.  D.  569  ;  53  L.  J.,  Ch.  200 ;  49  L.  T. 
494  ;  32  W.  R.  147— V.-C.  B. 

To  Credit  of  Lunatic — Appointment  of  Vev 
Committee — Payment  of  Dividends.] — The  divi- 
dends arising  from  a  sum  of  stock  in  court,  to  the 
credit  of  H.  D.  R.,  a  lunatic,  ex  parte  the  Metro- 
politan Board,  which  represented  the  purchase- 
money  of  land  belonging  to  the  lunatic  taken 
by  the  Board  under  the  Lands  Clauses  Act,  1845, 
were  ordered  to  be  paid  to  the  joint  committees 
of  the  estate  of  the  lunatic.  Upon  the  death  of 
one  of  the  joint  committees  the  survivor  was 
appointed  sole  committee,  but  the  master  de- 
clined to  order  the  dividends  to  be  paid  to  him, 
and  a  petition  intituled  in  Lunacy  and  in  the 
Chancery  Division  was  presented  for  that  par- 
pose  : — Held,  that  the  dividends  ought  to  be 
transferred  to  the  lunacy  and  paid  to  the  com- 
mittee, and  that  upon  the  appointment  of  a  new 
committee  the  order  appointing  him  ought  to 
direct  payment  to  him  of  the  dividends,  and 
that  the  Metropolitan  Board  need  not  be  serred 
with  the  application,  and  that  the  Board  ought 
to  pay  the  costs  of  the  petition.  Ryder,  In  tv, 
37  Ch.  D.  596  ;  57  L.  J.,  Ch.  459  ;  58  L.  T.  783 
— C.  A. 

Order  directing  that  Mortgage  should  bo  Per- 
manent Investment.] — The  compensation  moneys 
of  lands  compulsorily  taken  by  a  railway  com- 
pany were  invested  in  reduced  annuities,  the 
company  paying  the  costs.  The  fund  was  sub- 
sequently reinvested  on  mortgage,  the  company 
again  paying  the  costs.  On  this  occasion  it  was 
ordered  that  for  the  purposes  of  costs  of  any 
future  application,  such  reinvestment  should  be 
treated  as  a  permanent  reinvestment  An  ar- 
rangement for  a  transfer  of  the  mortgage 
security  having  been  entered  into  by  the  owner 
of  the  fund,  an  application  was  made  to  the 
court  for  a  declaration  that  the  transferees  were 
absolutely  entitled  to  the  moneys  secured  by 
the  mortgage.  The  question  was  whether  under 
s.  80  of  the  Lands  Clauses  Act,  1845,  the  com- 
pany was  liable  to  pay  the  costs  of  this  appli- 
cation : — Held,  that  the  company  was  not  hable 
to  pay  such  costs,  the  meaning  of  the  previous 
order  being  that  it  was  not  to  be  subjected 
to  the  payment  of  the  costs  of  any  future  appli- 
cation in  respect  of  the  pnrchase-money&. 
Gcdling  Rectory,  In  re,  53  L.  T.  244— Kay,  J. 

Architects'  and  Surveyors'  Fees,] — Where  the 
purchase-moneys  in  court  of  lands  compulsorily 
taken  are  authorised  to  be  paid  out  and  applied 


1188 


LANDS    CLAUSES    ACT— Superfluous  Lands. 


1134 


in  defraying  the  expenses  of  erecting  buildings, 
and  it  is  ordered  that  the  costs  of  such  invest- 
ment, pursuant  to  s.  80  of  the  Lands  Clauses 
Act,  1845  (including  therein  all  reasonable 
charges  and  expenses  incidental  to  the  invest- 
ment), shall  be  borne  by  the  parties  by  whom 
the  lands  were  taken,  the  fees  payable  to  the 
architect  and  surveyor  for  planning  and  super- 
intending such  buildings  will  come  within  the 
term  "expenses  of  building/1  and  are  not  costs, 
charges,  and  expenses  of  and  incidental  to  the 
investment.  Butchers*  Company.  In  re,  53  L.  T. 
491-Kay,  J. 

Transfer  to  Account — Form  of  Entry.  ] — Where 
a  fond,  representing  the  price  of  houses  taken 
for  the  purpose  of  a  public  undertaking,  had 
been  transferred  to  the  credit  of  an  administra- 
tion suit M  ex  parte  the  undertakers'  account  of 
estates  devised  by  the  will,"  not  specifying  the 
special  act  or  the  Lands  Clauses  Act : — Held, 
that  the  undertakers  were  liable  to  pay  costs  of 
re-investment.  Drake  v.  Greaves,  38  Gh.  D. 
609;  66  L.  J.,  Oh.  183  ;  65  L.  T.  353  ;  31  W.  B. 
757-North,  J. 


IV.  SUPERFLUOUS  LAUDS. 

sals  of  Land  previously  subject  to  Statutory 
Frdu^teion  against  Building.]— An  Inclosure  Act, 
passed  in  1806,  provided  that  no  buildings  should 
at  any  time  thereafter  be  erected  on  a  certain 
strip  of  land.  In  1865  a  railway  company 
under  their  statutory  powers  acquired  a  portion 
of  the  strip  of  land  for  the  purposes  of  their 
undertaking.  A  part  of  the  land  thus  acquired 
became  superfluous  land,  and  the  company  in 
1868  sold  and  conveyed  the  superfluous  part  to 
a  purchaser  who  demised  it  to  the  defendant. 
The  defendant  in  1885  commenced  building  on 
the  land : — Held,  that  the  land  acquired  by  the 
company  was  freed  from  the  prohibition  of 
braiding  only  for  the  purposes  of  the  company's 
undertaking,  and  that,  when  part  of  it  was  sold 
as  superfluous  land,  the  prohibition  of  building 
rerifed  in  respect  of  that  part.  An  injunction 
to  restrain  the  defendant  from  building  on  the 
land  in  contravention  of  the  provisions  of  the 
Inclosure  Act  was  granted  at  the  suit  of  an 
an  owner  of  adjoining  land.  Bird  v.  Eggleton 
or  Pmtford,  29  Ch.  D.  1012  ;  64  L.  J.,  Ch.  819 ; 
53  L.  T.  87  ;  S3  W.  R.  774  ;  49  J.  P.  644— 
Pearson,  J. 

AhsoluteSale— Title  to  be  forced  on  Purchaser.] 
—A  railway  company,  upon  a  sale  of  super- 
fluous lands,  arranged  with  the  purchasers 
for  the  postponement  of  the  payment  of  the 
purchase-money  until  a  given  date,  which  was 
beyond  the  period  prescribed  for  the  sale  by  the 
nulway  company  of  its  superfluous*  lands.  Part 
of  the  arrangement  consisted  in  a  declaration  by 
the  parties  that  the  railway  company  should 
have  a  lien  on  the  lands  sold  until  payment  of 
the  purchase-moneys.  The  purchasers  from  the 
railway  company  having  contracted  to  sell  the 
lands  to  another  person  : — Held,  on  a  summons 
under  the  Vendor  and  Purchaser  Act,  1874,  that 
the  court  would  not  compel  the  person,  who 
•peed  to  purchase  from  the  purchasers  from  the 
railway  company,  to  complete.  Whether  the 
sale  by  the  railway  company  was  an  absolute 


sale,  qussre.  Thackwray  and  Young,  In  re,  40 
Ch.  D.  34  ;  58  L.  J.,  Oh.  72  ;  59  L.  T.  815  ;  37 
W.  R.  74— Chitty,  J. 

Surplus  Land  —  Debenture  Stock — Charge — 
Priority.]  —See  Hull,Bamsley  and  West  Biding 
Bailtoay,  In  re,  post,  Railway. 


LAND  REGISTRY. 

See  DEED  AND  BOND,  II. 


LAND  TAX. 

See  REVENUE. 


LARCENY. 

See  CRIMINAL  LAW. 


LEASE  AND  LEASEHOLDS- 

Between  Landlord  and  Tenant.]— See  Land- 
lord and  Tenant. 


LECTURE. 

See  COPYRIGHT. 


LEGACY. 

Powers  of  Executors  with  regard  to.]— See 

EXKCUTOB  AND  ADMINISTRATOR. 

Construction  of,  and  other  Matters  relating 
to.]— See  Will. 

Duty.]— See  Revenue. 


LEGITIMACY. 

See  HUSBAND  AND  WIFE. 


1135 


LETTERS— LIEN. 


1136 


LETTERS. 

Property  in— Bestraining  Publication.]— The 
property  in  and  the  right  to  retain  letters  remain 
in  the  person  to  whom  they  are  sent ;  bat  the 
sender  has  still  that  kind  of  interest,  if  not  pro- 
perty, in  the  letters  which  enables  him  to  restrain 
their  publication,  unless  it  can  be  clearly  shown 
that  such  publication  is  necessary  for  the  "vindi- 
cation of  character.  Lytton  (Earl)  v.  Devey, 
64  L.  J.,  Ch.  293  ;  62  L.  T.  121— V.-C.  B. 

Contract  by.]— fife*  Contract,  I.  6,  a. 

Addressed  to  Agent  at  Principal's  Office- 
Compelling  Agent  to  rescind  Order  to  Post- 
office.] — B.  was  employed  to  manage  one  of  L.'s 
branch  offices  for  the  sale  of  machines,  and  re- 
sided on  the  premises.  He  was  dismissed  by  L., 
and  on  leaving  gave  the  postmaster  directions  to 
forward  to  his  private  residence  all  letters  ad- 
dressed to  him  at  L.'s  branch  office.  He  admitted 
that  among  the  letters  so  forwarded  to  him  were 
two  which  related  to  L.'s  business,  and  that  he 
did  not  hand  them  to  L.,  but  returned  them  to 
the  senders.  L.  brought  an  action  to  restrain 
B.  from  giving  notice  to  the  post-office  to  forward 
to  B.'s  residence  letters  addressed  to  him  at  L.'s 
office,  and  also  asking  that  he  might  be  ordered 
to  withdraw  the  notice  already  given  to  the  post- 
office  : — Held,  that  the  defendant  had  no  right 
to  give  a  notice  to  the  post-office,  the  effect  of 
which  would  be  to  hand  over  to  him  letters  of 
which  it  was  probable  that  the  greater  part  re- 
lated only  to  L.'s  business  ;  and  that  the  case 
was  one  in  which  a  mandatory  injunction  com- 
pelling the  defendant  to  withdraw  his  notice 
could  properly  be  made,  the  plaintiff  being  put 
under  an  undertaking  only  to  open  the  letters  at 
certain  specified  times,  with  liberty  for  the  de- 
fendant to  be  present  at  the  opening.  Hermann 
Loog  v.  Bean,  26  Ch.  D.  306  ;  63  L.  J.,  Ch. 
1128;  61  L.  T.  442;  32  W.  R.  994  ;  48  J.  P. 
708— C.  A. 

Proof  of  Posting— Entry  by  Deoeased  Person.] 
—Neither  proof  of  an  entry  made  by  a  deceased 
person  in  the  ordinary  course  of  business  in  a 
postage-book  of  a  letter  to  be  posted,  nor  proof 
of  possession  by  the  deceased  person  for  the 
purpose  of  posting,  is  sufficient  evidence  of 
postage.  Rowlands  v.  Be  Vecchi,  1  C.4E.  10 — 
Bay,  J. 

"  Without  Prejudice."]— The  effect  of  letters 
without  prejudice  discussed.  Kurtz  v.  Spence, 
67  L.  J.,  Ch.  238 ;  68  L.  T.  438— Kekewich,  J. 


LIBEL. 

See  DEFAMATION. 


LICENCE. 

Of   Public    Houses.]  —  See    Intoxicating 
Liquors. 

Dancing.] — See  Disorderly  House. 

To  carry  Gun.]— See  Eetonub  (Excise). 

To  use  Patent]— See  Patent. 

Duty  towards  Licensees.]— See  Nroligwce. 


LIEN. 

Of  Solicitors.]— See  Solicitor. 

Of  Vendors.]— See  Vendor  and  Purchases 
— Railway. 

Of  Agent]— See  Principal  and  Agent. 

Maritime.]— See  Shipping. 

Of  Auctioneer.]— See  Sale. 

Of  Banker.]— See  Banker. 

Of  Carriers.]—  See  Carrier. 

On  Polioy  of  Insurance  for  »■— ■'—  ]— ** 
Insurance,  I.  3. 

Charge  during  Detention.]— A  workman  de- 
taining a  chattel  in  respect  of  a  lien  for  work 
done  thereon,  has  no  claim  for  warehouse  charges 
during  such  detention.  Bruce  v.  Evereon,  1  C. 
&  E.  18— Stephen,  J. 

General  Lien— Winding-up  of  Company— 
Effect  of,  on  Agreement]— In  1876  an  agree- 
ment was  entered  into  between  the  L.  Goal 
Company  and  the  G.  W.  Railway  Company,  by 
which  the  charges  for  coal  consigned  by  the  coal 
company  were  carried  to  a  "  ledger  account," 
one  condition  of  which  was,  that  the  goods  and 
waggons  belonging  to  or  sent  by  the  person 
having  a  ledger  account  should  be  subject  to  s 
general  lien  in  favour  of  the  railway  company 
for  all  moneys  due  to  them,  &c.,  from  such 
person  on  any  account,  such  lien  to  take  effect 
immediately  after  the  failure  of  payment  on 
demand  of  any  sums  appearing  to  be  due  on 
the  ledger  account;  "in  case  of  bankruptcy, 
insolvency,  or  stoppage  of  payment,  such  lien 
to  take  effect  immediately  for  any  sum  appear- 
ing due  in  the  books  of  the  company/  with 
a  right  to  sell  such  goods  and  waggons,  and 
out  of  the  proceeds  to  retain  the  sums  due. 
The  coal  company  became  insolvent,  and  on 
the  16th  December,  1885,  a  petition  was  pre- 
sented for  winding-up ;  on  the  20th  January, 
1886,  a  provisional  liquidator  was  appointed, 
and  in  February,  1886,  an  order  to  wind 
up  was  made.  When  the  petition  was  pre- 
sented the  coal  company  was  indebted  to  the 
railway  company  in  respect  of  charges  for 
freight  Of  the  fifteen  waggons  in  use  by  the 
coal  company,  and  employed  in  carrying  ooal 


1187 


LIMITATIONS,  STATUTE    OF. 


1188 


over  the  railway  company's  line,  nine  had  been 
received  by  the  railway  company  prior  to  presen- 
tation of  the  winding-up  petition,  and  had  been 
detained  by  them  ever  since ;  four  in  the  posses- 
sion of  the  railway  company  when  the  petition 
wai  presented  had  travelled  np  and  down  the 
line  since,  but  returned  into  the  possession  of 
the  railway  company  before  the  date  of  the 
winding-up  order;  two  did  not  come  into  the 
possession  of  the  railway  company  until  between 
toe  presentation  of  the  petition  and  the  winding- 
up  order.  The  liquidator  claimed  delivery  up  by 
the  railway  company  of  the  fifteen  waggons 
winch  the  company  claimed  to  retain  in  satis- 
faction of  the  general  lien  under  the  agree- 
ment :— Held,  that  the  lien  given  to  the  railway 
company  by  the  agreement,  which  was  made  for 
the  ordinary  purposes  of  the  coal  company's 
tauten,  was  good  and  valid,  and  took  effect 
Dpon  the  insolvency  of  that  company,  and  had 
not  been  displaced  by  anything  that  had  taken 
place  in  the  winding-up  proceedings.  Llangen- 
eeek  Coal  Company,  In  re,  66  L.  T.  475 — 
Chitty,  J. 

SmI  Estate— Bond  Debt  and  Interest.]— In 
1806  a  bond  was  executed  by  A.  in  favour  of  B., 
tod  by  a  contemporaneous  settlement  it  was 
settled  by  B.,  the  obligee,  upon  certain  trusts. 
By  his  will,  dated  in  1 812,  A.,  the  obligor,  charged 
hit  real  and  personal  estate  with  payment  of  the 
bond  debt  He  shortly  afterwards  died.  The 
plaintiff  claimed,  as  assignee  of  the  bond,  a  valid 
equitable  lien  on  the  obligor's  real  estate  in 
iwpect  of  the  bond  debt  and  interest.  The 
defence  was,  that  the  obligor  died  possessed  of 
peiaonal  estate  amply  sufficient  to  pay  the  bond 
debt  and  interest,  and  that  the  plaintiff's  prede- 
cessors in  title  ought  to  have  obtained  payment 
oat  of  such  personal  estate,  and  that  not  having 
done  so,  they  waived  their  right  to  have  recourse 
to  the  real  estate  : — Held,  that  the  plaintiff  was 
entitled  to  a  valid  charge  in  equity  for  the 
amount  of  the  bond  and  interest  upon  the  real 
«Ute  of  the  obligor.  Justice  v.  Foohs,  57  L.  T. 
«W-Chitty,  J. 

Payment  of  Sent  by  Lessee— Effect  of,  on 
load  ia  hands  of  Assignee  and  Mortgagee.  ] — A. 
hong  lessee  of  certain  lands  under  a  lease  con- 
taining the  ordinary  covenants  by  him  as  lessee 
for  payment  of  rent,  and  a  condition  of  re-entry 
in  case  of  non-payment,  assigned  his  interest 
■nder  the  lease  to  B.,  who  covenanted  with  A. 
to  pay  the  rent  and  to  keep  him  indemnified 
•gainst  it.  B.  mortgaged  the  premises  comprised 
in  the  lease  to  C.  by  way  of  sub-demise.  Arrears 
of  rent  became  due  which  the  lessor  compelled 
A.  to  pay  under  the  covenant  in  the  lease.  In 
an  action  against  B.  and  C,  A.  sought  for  a 
declaration  that  the  sum  so  paid  by  him  for  rent 
•as  a  salvage  payment,  and  was  charged  on  the 
premises  in  priority  to  C.'s  mortgage : — Held, 
that  A.  had  no  interest  in  the  premises  autho- 
rising him  to  make  a  salvage  payment,  and  that 
therefore  he  had  no  lien  on  the  premises  for  the 
rent  so  paid  by  him.  O'Loughtin  v.  Dwyer,  13 
L  &\,  It.  75— V.-C. 


LIFE  INSURANCE. 

See  INSURANCE. 


LIGHT  AND  AIR. 


See  EASEMENT. 


LIGHTHOUSES. 


See  SHIPPING. 


LIMITATION  OP 
LIABILITY. 

See  8HIPPING. 


LIMITATIONS,  STATUTE 

OP. 

L  Pebsonal  Actions  and  Pboceedingb. 

1.  Trusts,  1138. 

2.  Devastavit,  MO. 


3.  Negligence,  1141. 

4.  BUls  of  Ex 


of  Exchange — CJiegves,  1142. 

5.  Fravd,  1143. 

6.  In  Other  Cases,  1143. 

7.  Acknowledgment  of  Debts,  1146. 

II.  Actions  relating  to  Land,  1149. 
III.  Equitable  Demands,  1154. 

I.    PERSONAL  ACTIONS  AND 
PROCEEDINGS. 

1.  Tbusts. 

Tnut  for  Payment  of  Debts.] — A  trust  in  a  will 
for  the  payment  of  debts  out  of  real  estate  does 
not  prevent  the  operation  of  the  Statute  of 
Limitations,  if  the  testator  in  fact  leaves  no  real 
estate  to  support  the  trust.  Smith,  Em  parte, 
Hepburn,  In  re,  14  Q.  B.  D.  394  ;  54  L.  J.,  Q.  B. 
422— Cave,  J. 

Breach  of  Trust— Fiduciary  Capacity — Solici- 
tor and  Client]— In  1868,  upon  the  death  of  the 
mortgagor,  the  mortgaged  property  was  sold  by 
A.,  the  mortgagee,  under  the  power  of  sale  con- 
tained in  the  mortgage  deed.  The  balance  of 
the  proceeds  afterpayment  of  the  mortgage  debt 
was  retained  by  B.,  who  in  effecting  the  mort- 


1139 


LIMITATIONS,  STATUTE    OF. 


1140 


gages,  had  acted  as  solicitor  for  both  parties, 
and  conducted  the  sale  on  behalf  of  A.  The 
power  of  sale  in  the  mortgage  deed  contained 
the  usual  provision  that  the  surplus  proceeds 
should  be  paid  to  the  mortgagor,  his  heirs,  or 
assigns.  The  mortgagor  had  died  unmarried  and 
intestate,  and  being  illegitimate  left  no  next  of 
kin.  Administration  had  not  been  taken  out  to 
him.  A.  died  in  1877,  having  left  all  his  pro- 
perty to  his  widow  C,  whom  he  appointed  his 
executrix.  G.  died  in  1878,  having  appointed  B. 
and  R.  her  executors.  Upon  the  death  of  B.  in 
1881,  B.,  as  being  through  C.  the  legal  personal 
representative  of  A.,  claimed  as  against  B.'s  estate 
the  balance  of  the  proceeds  of  the  sale  in  1868 
of  the  mortgaged  property : — Held,  that  B., 
having  received  this  balance  in  a  fiduciary 
character  as  agent  for  A.,  and  with  full  know- 
ledge that  A.  was  an  express  trustee  of  the 
balance  for  the  mortgagor,  and,  in  the  circum- 
stances, liable  to  a  claim  by  the  Grown,  had 
brought  himself  within  the  principle  of  Burdick 
v.  Oarrick  (5  L.  R,  Gh.  233),  and,  accordingly, 
that  the  Statute  of  Limitations  could  not  be  set 
up  as  a  bar  to  the  claim.  Bell,  In  re,  'Lake  v. 
Bell,  84  Ch.  D.  462  ;  66  L.  J.,  Ch.  307  ;  55  L.  T. 
757  ;  36  W.  R.  212— Chitty,  J. 

P.,  who  was  a  solicitor,  had  acted  as  agent  for 
the  late  husband  of  M.  in  several  matters  of 
business,  including  investments  of  money.  P. 
collected  the  personal  estate,  and  received  large 
sums  on  foot  of  it.  He  acted  not  only  as  solici- 
tor, but  as  general  agent  for  M.,  and  furnished 
her  with  accounts  of  his  receipts  and  disburse- 
ments. While  acting  as  agent  for  M.  in  1871, 
P.  invested  1,500Z.  on  a  mortgage  to  H.,  upon 
security  which  proved  to  be  worthless.  There 
was  no  evidence  that  P.  was  authorised  to  lend 
on  this  or  on  any  special  security.  P.  acted  as 
solicitor  both  for  M.  and  H.  in  the  matter  of  the 
loan.  The  interest  was  paid  for  some  years  on 
the  1,5001.,  but  afterwards  H.  ceased  to  pay  any 
interest.  Proceedings  were  undertaken,  and 
expenses  incurred  by  M.  in  endeavouring  to 
realize  the  security,  which  proved  fruitless. 
Upon  P.'s  death  M.  claimed  as  a  creditor,  in  an 
administration  action,  the  sum  of  1,500?.,  arrears 
of  interest,  and  the  costs  of  the  proceedings  taken 
by  her  to  realize  her  security  : — Held,  that  there 
was  a  fiduciary  relation  between  the  parties,  which 
precluded  the  personal  representative  of  P.  from 
relying  on  the  Statute  of  Limitations,  and  that 
M.  was  entitled  to  reject  the  investment  and  to 
insist  on  the  disallowance  of  the  1,5002.  credit 
in  P.'s  account.  Power  v.  Power,  13  L.  IL, 
Ir.  281— V.-O. 


Trustee  and  Cestui  qne  Trust — Plead- 


ing.]— A  cestui  que  trust  under  a  will  brought 
an  action  against  the  administratrix  and  the 
heir-at-law  of  the  sole  trustee  who  had  died 
intestate,  to  make  his  estate  liable  for  the  loss 
which  had  accrued  to  the  trust  estate  owing  to  a 
breach  of  trust  committed  by  him.  The  Statute 
of  Limitations  was  not  pleaded,  and  at  the  trial 
an  account  was  directed  on  the  footing  of  the 
liability  of  the  heir  ;  he  raised  the  defence  of  the 
statute  on  the  further  consideration  : — Held, 
that  the  statute  should  have  been  pleaded,  and 
that  the  heir-at-law  could  not  set  up  the  statute 
in  answer  to  a  claim  arising  out  of  a  breach  of 
trust  committed  by  the  person  whose  estate  had 
descended  to  him.    Brittlebank  v.  Goodwin  (5 


L.  R.,  Eq.  545)  applied.  Bwrge,  In  re,  OiUari 
v.  Zawrenson,  57  L.  T.  364;  52  J.  P.  20— 
Stirling,  J. 


2.    Devastavit. 

When  a  Defence  to  Action.]— Testator  mort- 
gaged freeholds,  and  died  in  May,  1867,  having 
devised  all  his  real  and  personal  estate  to  A.  and 
B.  upon  certain  trusts,  and  having  appointed  them 
his  executors.  The  executors,  without  making 
provision  for  the  mortgage  debt,  applied  the 
whole  of  the  personal  estate  in  payments  to 
simple  contract  creditors  and  beneficiaries.  In 
1869  A.  died,  and  G.  was  appointed  trustee  in 
his  place  in  1871.  The  rents  of  the  real  estate 
were  received  by  the  trustees, and  afterpayment 
of  the  interest  on  the  mortgage  the  balance  was 
applied  in  accordance  with  the  trusts  of  the 
wilL  The  mortgage  property  became  an  insuffi- 
cient security,  and,  interest  having  fallen  into 
arrear,  the  mortgagees  in  1886  commenced  pro- 
ceedings against  B.  and  C,  under  which  accounts 
of  the  testator's  personal  estate  received  by  A 
and  B.,  or  by  B.  alone,  were  directed,  and  also  the 
usual  accounts  of  the  testator's  real  estate,  in- 
cluding an  account  of  rents  and  profits,  against 
B.  and  G.  Accounts  were  accordingly  carried 
in,  in  which  B.  and  G.  claimed  credit  for  all 
payments  and  disbursements  made  to  simple 
contract  creditors  and  beneficiaries,  and,  further, 
that  as  to  such  of  the  payments  as  were  made 
by  A.  and  B.  upwards  of  six  years  prior  to  the 
action,  any  claim  on  a  devastavit  was  statute- 
barred,  and  that  as  to  the  rents  and  profits  they 
were  not  liable  to  account  for  them  at  all  :— 
Held,  following  Mareden,  In  re  (26  Ch.  D.  783), 
on  this  point,  and  distinguishing  Gale,  In  ft • 
Blake  v.  Gale  (22  Gh.  D.  820),  that  B.  could  not 
set  up  his  own  and  A/s  wrongful  payments  by 
way  of  devastavit  as  a  defence,  in  order  to 
claim  the  benefit  of  the  Statute  of  Limitations. 
Hyatt,  In  re,  Bowie*  v.  Hyatt,  38  Ch.  D.  GW; 
67  L.  J.,  Ch.  777  ;  59  L.  T.  297— Chitty,  J. 

A  testator  mortgaged  leaseholds.  On  his  death 
his  executors  took  possession  of  his  estate,  is- 
eluding  the  leaseholds,  and  received  the  rents, 
and  for  a  long  time  paid  the  interest  on  the 
mortgages,  and  applied  the  surplus  of  the  rents 
for  the  benefit  of  the  beneficiaries.  The  mort- 
gaged property  proved  insufficient  to  pay  the 
mortgage  debt,  and  in  an  action  for  the  adminis- 
tration of  the  testator's  estate  the  execnton 
claimed  to  be  credited  with  the  payments  made 
to  the  beneficiaries  on  the  ground  of  acquiescence 
on  the  part  of  the  mortgagees,  and  as  to  such  of 
them  as  were  made  more  than  six  yean  before 
the  commencement  of  the  action  they  relied  on 
the  Statute  of  Limitations  : — Held,  that  acqui- 
escence by  the  mortgagees  had  not  been  esta- 
blished, and  that  as  the  executors  were  trustees 
for  the  creditors,  the  Statute  of  Limitations 
furnished  no  bar  to  a  claim  in  respect  of  a 
devastavit  committed  by  them.  Marsden,  h 
re,  Bowden  v.  Layland,  Gibbt  v.  Layland,  % 
Ch  B.  784  ;  54  L.  J.,  Ch.  640  ;  61  L.  T.  417;  33 
W.  R.  28— Kay,  J. 

A  testator  mortgaged  an  estate  to  plaintiffs, 
and  devised  it  to  three  executors  upon  trusts  in 
favour  of  his  daughters,  and  after  the  death  of 
all  his  children  for  sale.  The  executors  distri- 
buted the  whole  personal  estate  without  pro- 
viding for  the  mortgage  debt    After  this  one  of 


r 


1141 


LIMITATIONS,   STATUTE    OF. 


1142 


the  executors  died.  The  daughters  occupied  the 
farm  for  twenty  years  after  the  distribution  of 
the  personal  estate,  paying  rent  to  the  executors, 
and,  until  1880,  paying  the  interest  on  the  mort- 
gage. The  mortgagees  then  brought  an  action 
for  foreclosure  or  sale,  and  claimed  to  have  any 
deficiency  made  good  by  the  two  surviving 
executors  and  the  executors  of  the  deceased 
executor :—  Held,  that  any  claim  founded  on  the 
devastavit  in  distributing  the  personal  estate  was 
barred  after  six  years,  but  that  the  plaintiffs 
were  entitled  to  foreclosure,  and  to  an  order  for 
administration  of  the  mortgagor's  estate.  Gale, 
In  re,  Blake  v.  Gale,  22  Oh.  D.  820  ;  53  L.  J., 
Ch.694 ;  48  L.  T.  101 ;  31  W.  R.  538— V.-C.  B. 


3.  Negligence. 

Of  Solicitor — Mortgage.] — A  solicitor  in  ad- 
vancing money  on  mortgage  may  be  employed, 
(1)  to  invest  in  a  particular  mortgage ;  (2)  to 
find  securities  to  be  approved  by  the  client  and 
then  invest  the  money  ;  (3)  to  find  securities 
and  invest  the  money,  the  client  taking  little  or 
no  part  in  the  business.  In  an  action  for  negli- 
gence against  the  solicitor,  the  Statute  of  Limi- 
tations is  a  good  defence  in  the  first  case  and 
alto  in  the  second  case  if  the  client  has  approved 
of  the  mortgage,  no  relation  of  trustee  and  cestui 
que  trust  then  existing  between  them.  Dooby 
v.  Watson,  39  Oh.  D.  178  ;  57  L.  J.,  Ch.  865  ;  58 
L  T.  943 ;  36  W.  B.  764— Kekewich,  J. 

From  what  Time  running.] — Trust  pro- 
perty was  transferred  to  new  trustees  in  July, 
1875.  The  solicitor  employed  in  the  transaction 
did  not  give  certain  notices  necessary  to  perfect 
the  title  of  the  new  trustees  ;  and  in  April,  1879, 
a  subsequent  mortgagee  of  the  property  obtained 
priority  over  the  trustees  by  giving  notice  of  his 
charge: — Held,  that  there  was  no  complete 
cave  of  action  against  the  solicitor  in  respect  of 
negligence  till  April,  1879,  from  which  date  the 
Statute  of  Limitations  therefore  ran.  Bean  v. 
WUet  1  C.  &  E.  519— Cave,  J. 

Action  against  Firm.]— In  1869,  P.,  a 

member  of  a  firm  of  solicitors,  by  his  advice  in- 
duced the  plaintiff  to  invest  moneys  upon  the 
Kcuritj  of  an  equitable  mortgage  of  a  lease 
which  he  represented  as  renewable,  and  which 
bad  previously  been  renewed  by  custom  every 
fourteen  years,  but  the  future  renewal  whereof 
vat  prohibited  by  a  statute  passed  in  1868.  In 
1875  P.  fraudulently,  and  without  the  knowledge 
of  his  partners,  gave  a  legal  mortgage  of  the 
lease  to  a  third  party  without  notice  of  the 
plaintiffs  mortgage.  The  security  proved  in- 
sufficient, and  P.  having  absconded,  the  plaintiff 
■ought  to  make  P.'s  firm  liable  for  the  loss  sus- 
tained by  him  : — Held,  that  since  the  transaction 
of  1869  was  within  the  ordinary  limits  of  the 
partnership  business,  the  firm  was  liable  for 
negligence  in  respect  thereof,  but  that  the 
remedy  against  them  was  barred  by  the  statute 
21  Jac.  1,  c.  16 ;  that  P.'s  fraud  of  1875  not 
being  committed  in  the  ordinary  course  of  the 
business,  the  firm  was  not  liable  in  respect 
thereof.  Hughe*  v.  Twisden,  55  L.  J.,  Ch.  481 ; 
54  L.  T.  570 ;  34  W.  R.  49&— North,  J. 

Ccaeealmant  until  within  Six  Tears  before 


Action — Fraud.] — In  an  action  for  negligence, 
concealment  of  the  negligence  until  within  six 
years  before  action  is  no  answer  to  the  defence 
of  the  Statute  of  Limitations  if  the  defendant 
has  not  been  guilty  of  fraud.  Armstrong  v. 
Milbvrn,  64  L.  T.  723— C.  A. 


4.  Bills  of  Exchange — Cheques. 

Undated  Cheque.] — An  undated  cheque  was 
given  by  C.  B.  to  A.  J.  P.  in  March,  1878,  and 
accepted  by  the  latter  in  discharge  of  a  larger 
Bum.  C.  B.  went  abroad  in  March,  1878,  and 
died  there  in  1884.  At  the  time  of  drawing  the 
cheque  C.  B.  had  not  sufficient  moneys  at  his 
bank  to  meet  it,  and  was  negotiating  a  loan, 
which  he  expected  shortly  to  complete,  out  of 
which  the  cheque  would  be  paid.  The  loan  was 
not  completed.  A.  J.  P.  was  informed  of  that 
fact.  The  cheque  remained  undated,  and  was 
never  presented  for  payment.  In  1885  A.  J.  P. 
commenced  proceedings  upon  the  cheque : — 
Held,  that  the  Statute  of  Limitations  barred  the 
claim,  as  the  six  years  began  to  run  when  the 
letter  was  received  stating  that  the  loan 
would  not  be  completed,  and  had  long  since 
elapsed.  Bet  hell,  In  re,  Bethell  v.  BetJiell,  34 
Ch.  D.  561  ;  56  L.  J.,  Ch.  334  ;  56  L.  T.  92  ;  35 
W.  R.  330— Stirling,  J, 

Presentment  and  Dishonour  of  Bill  of  Ex- 
change— Delay.  J — B.  was  possessed  of  con- 
siderable funds  invested  in  Consols.  In  conse- 
quence of  doubts  having  arisen  as  to  whether 
B.  was  married  or  not,  her  bankers  refused  to 
receive  and  pay  the  dividends  on  those  funds 
to  her  until  they  were  satisfied  of  the  fact 
of  her  not  being  married.  In  August,  1872,  in 
order  to  raise  money,  B.,  who  was  living  in 
France,  drew  a  document  purporting  to  be  a  bill 
of  exchange,  payable  on  demand,  for  7,0001.  in 
the  Bank  of  England  •*  on  account  of  the  divi- 
dends and  interest  due  on  the  capital  and  divi- 
dends registered  in  the  books  of "  the  Bank  of 
England.  B.  had  no  account  with  the  bank. 
The  document  was  in  April,  1873,  endorsed  to 
G.,  with  whom  B.  was  living,  and  by  him  was 
endorsed  in  August,  1876,  to  the  claimant.  These 
indorsements  purported  to  be  for  value,  and  the 
claimant,  who  was  not  cross-examined,  deposed 
that  the  indorsement  to  him  had  been  made  to 
guarantee  the  payment  of  loans  and  advances 
made  by  him.  B.  died  intestate  in  France  in 
1 878.  On  the  2nd  February,  1 884,  the  document 
was  presented  on  behalf  of  the  claimant  to  the 
Bank  of  England,  and  on  payment  being  refused 
it  was  duly  protested.  A  claim  in  respect  of  the 
amount  due  under  the  document  was  made  upon 
B.'s  estate,  which  was  being  administered  by  the 
court :  —Held,  that  the  claim  was  not  barred  by 
the  Statute  of  Limitations,  as  the  time  only 
began  to  run  from  the  presentment  and  dis- 
honour, but  that  G.  had  no  right  to  deal  with 
the  bill,  and  that  the  lapse  of  time  between  the 
indorsement  to  G.  and  that  to  the  claimant,  and 
before  presentment,  and  other  circumstances  of 
suspicion,  were  such  as  to  affect  the  claimant 
with  the  equities  between  B.  and  G.,  and  to 
disentitle  him  to  receive  payment.  Boyte, 
In  ref  Crofton  v.  Crofton,  83  Ch.  D.  612 ;  66 
L.  J.,  Ch.  135  ;  55  L.  T.  391  ;  35  W.  R.  247— 
North,  J. 


1148 


LIMITATIONS,   STATUTE    OF. 


1144 


5.  Fraud. 


Debt  incurred  by— Bankruptcy.]— A  debtor 
who  has  made  an  arrangement  with  "his  creditors 
under  s.  28  of  the  Bankruptcy  Act,  1869,  remains 
liable  under  s.  15  of  the  Debtors  Act  for  a  debt 
incurred  by  fraud,  e.g.,  in  selling  as  broker 
his  customer's  securities  without  authority. 
Where  the  fraud  was  not  discovered  until  after 
the  adjudication  in  bankruptcy : — Held,  that  the 
Statute  of  Limitations  did  not  begin  to  run  till 
the  bankruptcy  had  been  annulled.  Crowley, 
In  re,  Munns  v.  Burn,  35  Ch.  D.  266  ;  57  L.  T. 
298  ;  36  W.  R.  790— C.  A. 

Concealed  Fraud  —  Absence  of  Seasonable 
Xeans  of  Discovery.  J — In  an  action  to  recover 
damages  for  fraudulent  representation  of  the 
quality  (viz.,  "the  sheep-carrying  power")  of 
certain  lands,  whereby  the  plaintiff  was  induced 
to  take  leases  thereof,  the  defendants  pleaded 
the  Statute  of  Limitations.  Reply  :  That  the 
cause  of  action  relied  on  is  the  fraud  and  fraudu- 
lent misrepresentation  of  the  defendants,  and 
the  injuries  occasioned  to  the  plaintiff  thereby ; 
and  the  plaintiff  says  that  he  did  not,  and  could 
not,  by  the  exercise  of  reasonable  diligence,  have 
discovered  the  said  fraud,  or  that  the  said  re- 
presentation was  untrue  and  fraudulent,  until 
within  six  years  before  the  commencement  of 
this  action : — Held,  that  the  reply  was  no  answer 
to  the  plea  relying  on  the  statute.  Oibbs  v. 
Guild  (19  Q.  B.  D.  59)  commented  on  and  distin- 
guished. Barber  v.  Houston,  18  L.  R.,  Ir.  475 
— C.  A. 

The  action  was  nothing  more  than  one  for 
deceit,  which  before  the  Judicature  Act  must 
have  been  brought  in  a  court  of  common  law, 
and  would  have  been  barred  after  six  years 
under  s.  20  of  the  Irish  Common  Law  Procedure 
Act,  1853,  which  section  the  enactment  in  the 
Judicature  Act  (s.  28,  sub-s.  2)  providing  that, 
in  cases  of  conflict,  the  rules  of  equity  should 
prevail,  had  not  the  effect  of  repealing,  either 
expressly  or  by  implication  ;  but  in  the  case  of 
rights  and  remedies,  to  which  equitable  rules  are 
applicable,  and  to  which  the  Statute  of  Limita- 
tions do  not  directly  apply,  the  rules  of  equity 
will  now  be  enforced,  even  in  the  Common  Law 
Divisions.    lb.— Per  Porter  (M.R.). 

See  also  Armstrong  v.  Milburn,  ante,  col.  1142. 


6.  In  Other  Cases. 

Disclosure  of  Misfeasance  of  Directors  to 
Hoard  not  to  Company.] — An  application  was 
made  in  the  winding-up  of  a  company,  seeking 
to  recover  from  a  director  the  value  of  shares 
allotted  to  him  under  circumstances  which 
amounted  to  a  misfeasance.  It  appeared  that 
the  transaction  in  question  bad  been  disclosed 
at  a  board  meeting  of  the  directors  in  1873,  but 
that  two  of  the  directors  then  present  had  taken 
part  in  the  transaction  in  question,  and  the  third 
nad  received  shares  under  the  arrangement : — 
Held,  that  disclosure  to  the  directors  could  not, 
under  these  circumstances,  be  considered  as  dis- 
closure to  the  company,  and  that  the  claim, 
therefore,  was  not  barred  by  the  Statute  of 
Limitations.  Fitzroy  Bessemer  Steel  Company, 
In  re,  50  L.  T.  144 ;  32  W.  R.  475— Kay,  J. 
Compromised  on  appeal,  33  W.  R.  312— C.  A. 


Shares  or  Stock— Forged  Transfers— Forgery 
by  one  Executor.] — Railway  stock  was  regis- 
tered in  the  names  of  two  persons  who  were 
executors  and  trustees  of  a  will  One  of  them 
sold  and  transferred  the  stock,  forging  the  signa- 
ture of  the  other  to  the  transfers,  which  were  regis- 
tered by  the  railway  company.  On  the  forgeries 
being  discovered  by  the  other  executor,  a  new 
trustee  of  the  will  was  appointed  in  place  of  the 
forger,  who  then  left  this  country.  The  two 
trustees  informed  the  company  of  the  forgeries, 
and  applied  to  be  registered  as  owners  of  the 
stock.  The  company  refused  to  comply  with  the 
application,  and  the  two  trustees  thereupon 
brought  an  action  for  replacement  of  the  stock 
in  their  names.  Some  of  the  stock  was  trans- 
ferred more  than  six  years  before  the  action  was 
brought: — Held,  that  the  cause  of  action  was 
the  refusal  by  the  company,  when  the  forgeries 
were  made  known  to  them,  to  treat  the  plaintiffs 
as  owners  of  the  stock,  and  that,  therefore,  time 
under  the  Statute  of  Limitations  would  not 
begin  to  run  against  the  plaintiffs  until  such 
refusal.  Barton  v.  North  Staffordshire  JRstf- 
way,  38  Ch.  D.  458 ;  67  L.  J.,  Ch.  800 ;  58  L.  T. 
549  ;  36  W.  R.  754— Kay,  J. 


Mortgage  of  Beversionary  Interest  — 


Bight  when  arising.]— Two  brothers,  A.  and  R, 
were  entitled,  subject  to  their  mother's  life  inte- 
rest, to  a  fund  in  equal  moieties.  In  1858  A 
mortgaged  his  reversionary  interest  to  his  father, 
who  died,  having  appointed  B.  his  executor  and 
residuary  legatee.  The  property  having  fallen 
into  possession  on  the  death  of  the  mother  in 
1887,  B.  wrote  to  A.  that,  in  accordance  with  her 
wish  that  he  should  hand  over  to  A.  the  mort- 
gage deed,  he  gave  himself  the  satisfaction  of 
fulfilling  her  desire,  and  he  inclosed  the  deed 
accordingly.  Afterwards  B.  insisted  on  his  right 
under  the  mortgage  : — Held,  that  the  Statute  of 
Limitations  was  no  bar  to  the  claim  under  the 
mortgage,  as  the  right  to  enforce  the  mortgage 
arose  only  when  the  reversionary  interest  fell 
into  possession.  Hancock,  In  re,  Hancock  t. 
Berrey,  67  L.  J.,  Ch.  798 ;  59  L.  T.  197 ;  » 
W.  R.  710— Kay,  J. 

Action  for  Subsidence — Damages,  Recovery  of, 
after  Satisfaction  for  previous  Injury  arWif 
from  same  Act.] — Lessees  of  coal  under  the 
respondent's  land  worked  the  coal  so  as  to  cause 
a  subsidence  of  the  land  and  injury  to  houses 
thereon  in  1868.  For  the  injury  thus  caused 
the  lessees  made  compensation.  They  worked 
no  more,  but  in  1882  a  further  subsidence  took 
place  causing  further  injury.  There  would  have 
been  no  further  subsidence  if  an  adjoining 
owner  had  not  worked  his  coal,  or  if  the  lessees 
had  left  enough  support  under  the  respondent's 
land  i—Held  (Lord  Blackburn  dissenting),  that 
the  cause  of  action  in  respect  of  the  further 
subsidence  did  not  arise  till  that  subsidence 
occurred,  and  that  the  respondent  could  main- 
tain an  action  for  the  injury  thereby  caused, 
although  more  than  six  years  had  passed  since 
the  last  working  by  the  lessees.  Mcilin  v. 
Williams  (10  Ex.  259),  and  Baehhemse  v. 
Bmomi  (9  H.  L.  C.  503),  discussed.  Lamb  t. 
Walker  (3  Q.  B.  D.  389)  overruled.  D*rlej 
Main  Colliery  Company  v.  Mitchell,  11  App. 
Cas.  127  ;  55  L.  J..  Q.  B.  529  ;  64  L.  T.  882;  51 
J.  P.  148— H.  L.  (k).  Affirming  32  W.  R.  9*7 
— C.  A. 


1145 


LIMITATIONS,   STATUTE    OF. 


1146 


Jtiit  and  Several  Bond— Appointment  of 
leather  over  Estate  of  one  Obligor.]— A  tenant 
for  life  and  remainderman  executed  a  joint  and 
several  bond  with  warrant  of  attorney  for  con- 
fessing judgment  thereon,  and  several  judgments 
were  entered  up  against  them  by  the  obligee  of 
the  bond.  A  receiver  over  the  tenant  for  life's 
estate  was  extended  to  the  judgment  against  the 
father,  and  remained  in  receipt  of  the  rents  up 
to  a  period  within  twenty  years  of  the  present 
proceeding,  but  no  payment  was  ever  made  on 
foot  of  the  said  judgment : — Held,  that  the  ex- 
tension of  the  receiver  to  the  matter  of  the 
judgment  did  not  prevent  the  Statute  of  Limita- 
tions from  running  in  favour  of  the  remainder- 
nan.  Greene's  Estate,  In  re,  13  L.  B.,  Ir.  461— 
C.L 

Judgment  more  than  Twelve  Tears  Old— 
ttgat  to  Issno  Execution.] — Execution  cannot 
be  issued  on  a  judgment  where  for  twelve  years 
there  has  been  neither  payment  on  foot  thereof 
nor  acknowledgment.  Brans  v.  O'Bonnell,  18 
L.  R.,  Ir.  170— C.  A. 


liniitration  —  Statutory  Bar  —  "  Dying 
Iitartate  "— "  Present  Bight  to  Beoeive."]— The 
operation  of  23  &  24  Vict.  c.  38,  s.  13,  is  retro- 
spective, so  that  the  limitation  of  twenty  years 
"next  after  a  present  right  to  receive  the  same 
■ball  have  accrued  "  thereby  imposed  (in  analogy 
to  3  &  4  Will.  4,  c.  27,  s.  40)  upon  claims  to 
recover  personal  estate  of  "any  person  dying 
intestate,  possessed  by  the  legal  personal  repre- 
sentative of  such  intestate,"  is  not  confined  to 
the  case  of  persons  dying  intestate  after  the 
31st  of  December,  1860,  the  time  fixed  by  the 
section  for  commencement  of  the  operation  of 
the  enactment.  Accordingly,  a  claim  by  next  of 
kin  for  general  administration  of  the  estate  of  an 
intestate  who  died  in  1848  was  barred  at  the 
end  of  twenty -one  years  from  that  date ;  and 
leave  to  revive  an  administration  suit  relating  to 
the  same  estate  in  which  no  proceeding  had  been 
taken  since  the  decree  in  1855  was  refused. 
Sot  with  respect  to  assets  of  the  intestate  not 
received  by  the  administrator  until  1870  (more 
than  twenty  years  after  the  death,  and  within 
twenty  years  before  the  issue  of  the  writ)  the 
cfaim  of  the  next  of  kin  to  administration, 
limited  to  such  assets,  was  not  barred ;  there 
being  no  "present  right  to  receive"  on  the  part 
of  the  next  of  kin  until  the  assets  had  been 
actually  recovered  by  the  administrator.  John- 
"*,  In  re,  Sly  v.  Blake,  29  Ch.  D.  964  ;  52  L.  T. 
«2 ;  33  W.  R.  502— Chitty,  J. 

-—  Part  Payment.] — Part  payment  by  the 
administrator  out  of  a  particular  asset  which  has 
so  fallen  in  will  not  revive  the  right  to  sue  for 
general  administration  which  was  at  the  time  of 
payment  barred  by  statute,    lb. 

Executor  when  not  allowed  to  Plead.]— See 
toindell  v.  BuUuley,  ante,  col.  800. 

Iteoveij  of  Expenses  and  Bates.]  —  Sec 
Health— Metropolis. 

Actions  against  guardians  of  Poor.]  —  See 
Poor  Law. 


7.  Acknowledgment  of  Debts. 

Unsigned  Letter  written  by  Debtor's  Wife.]— 
An  unsigned  letter  acknowledging  a  debt,  written 
by  a  debtor's  wife  at  his  dictation,  and  sent  to 
the  creditor  in  the  same  envelope  with  a  letter  to 
the  creditor,  written  and  signed  by  the  wife,  and 
which  referred  to  the  unsigned  letter,  is  not  a 
sufficient  acknowledgment  of  a  debt  by  a  duly 
authorised  agent  of  the  debtor,  so  as  to  take  the 
case  out  of  the  Statute  of  Limitations.  Ingram 
v.  Little,  1  C.  &  E.  186— Cave,  J. 

Form  and  Sufficiency  o£] — A  letter  from  a 
debtor  to  his  creditor  contained  the  following 
expressions  : — "  1  was  in  hopes  of  being  able  to 
send  you  some  coin  by  small  instalments,  but  as 
I  have  been  ordered  home,  the  matter  must  be 
in  abeyance  a  little  longer,  which  won't  ruin  you. 
I  know  you  must  live  in  hopes  as  I  do,  for  a  good 

time  is  rather  long  coming I  can  assure 

you  such  behaviour  would  not  induce  me  to  put 
myself  out  to  attempt  to  square  off  your  account. 
1  think  you  ought  to  know  me  by  this  time. 
When  I  have  had  the  means,  you  have  pot 
luck  "  : — Held,  not  a  sufficient  acknowledgment 
of  a  debt  to  take  the  case  out  of  the  Statute  of 
Limitations.  Jupp  v.  Powell,  1  C.  &  B.  349 — 
Mathew,  J.    Affirmed  in  G.  A. 

J.  H.  was  the  trustee  of  a  settlement  by  which 
the  T.  B.  estate  was  settled  on  the  wife  of  the 
defendant  for  life,  to  her  separate  use  without 

Sower  of  anticipation.  J.  H.  lent  money  to  the 
efendant,  and  for  some  time,  with  the  wife's, 
consent,  the  rents  of  the  T.  B.  estate  were  applied 
towards  payment  of  the  debt,  the  wife  giving 
receipts  for  them.  In  October,  1879,  the  defen- 
dant wrote  to  J.  H.,  "  I  thank  you  for  your  very 
kind  intention  to  give  up  the  rent  of  T.  B.  next 
Christmas,  but  I  am  happy  to  say  at  that  time 
both  principal  and  interest  will  have  been  paid 
in  full "  :— Held,  that  this  was  not  an  acknow- 
ledgment which  would  take  the  debt  out  of  the 
Statute  of  Limitations.  Green  v.  Humphrey*, 
26  Ch.  D.  474  ;  53  L.  J.,  Ch.  626  ;  51  L.  T.  42— 
C.A. 

In  an  action  commenced  in  1885  for  the  ad- 
ministration of  C.  B.'s  estate,  on  inquiries  for 
creditors,  A.  J.  P.  brought  in  a  claim  to  be  paid 
a  sum  of  4412.  16#.  Id.,  for  commission  and 
moneys  lent  before  March,  1878.  C.  B.  was 
sent  to  the  Cape  of  Good  Hope  in  March,  1878, 
and  died  there  in  1884.  He,  while  on  board 
ship,  wrote  a  letter  in  which  he  asked  A.  J.  P. 
to  make  out  his  account,  and  send  it  to  him,  and 
added  "  I  will  send  it  to  you  as  soon  as  possible." 
The  account  was  sent  in  March,  1878,  and  C.  B. 
afterwards  wrote  letters  to  A.  J.  P.  in  which  he 
said, "  I  will  Bend  you  a  cheque  as  soon  as  I  can  " 
and  "  I  will  send  some  coin  home  as  soon  as  ever 
I  can  "  : — Held,  that  there  had  not  been  an  ac- 
knowledgment sufficient  to  enable  the  court  to 
infer  an  absolute  promise  to  pay.  Bethell,  In 
re,  Bethell  v.  Bethell,  34  Ch.  D.  561  ;  56  L.  J., 
Ch.  334  ;  56  L.  T.  92  ;  35  W.  R.  330— Stirling,  J. 
By  a  memorandum,  dated  the  28th  April,  1874, 
it  was  witnessed  that  the  defendant  deposited 
with  the  plaintiff  certain  title-deeds  by  way  of 
equitable  mortgage  for  6,000/.  and  interest.  The 
defendant  also  agreed  to  pay  to  the  plaintiff  on 
demand  6,000/.  and  interest,  and  to  execute  a 
proper  mortgage  with  all  the  usual  powers  and 
authorities  usually  given  to  a  mortgagee.  Thia 
memorandum  was  not  under  seal.    No  interest 


1147 


LIMITATIONS,   STATUTE    OF. 


1148 


was  paid  under  this  agreement,  and  nothing  was 
done  until  about  eleven  years  after  the  date  of 
it,  when  this  action  was  brought  for  the  specific 
performance  of  the  agreement.  At  the  trial  it 
was  declared  that  the  plaintiff  was  entitled  to  a 
lien  on  the  property  comprised  in  the  deeds  for 
the  money  advanced,  and  to  have  the  agreement 
specifically  performed,  but  that  was  without 
prejudice  to  the  defendant's  right  to  insist  on 
the  Statute  of  Limitations  as  a  defence  against 
any  principal  sum  or  interest.  The  question 
was,  whether  the  plaintiff  was  entitled  to  have 
in  the  mortgage  a  covenant  for  principal  and 
interest.  The  statute  was  relied  on  as  a  bar  to 
any  such  right.  A  correspondence  had  in  1885 
passed  between  the  parties  in  which  the  plaintiff 
had  demanded  an  account  of  how  matters  stood 
between  them.  The  defendant  answered  that 
he  was  unable  to  make  out  the  account,  but 
that  he  should  be  glad  to  leave  the  whole  thing 
entirely  in  the  plaintiff's  hands,  and  adopt  what- 
ever he  suggested.  He  also  wrote  :  "  There  is 
only  one  thing  which  gives  me  uneasiness,  which 
is,  that,  should  I  survive  you,  your  executors 
might  sell  the  land  at  a  forced  sale  for  little  or 
nothing,  and  make  a  claim  against  me,  which  I 
have  no  funds  to  meet "  : — Held,  that  the  defen- 
dant's letters  amounted  to  an  admission  of  his 
liability  to  account,  and  also  of  his  present 
liability  to  the  plaintiff ;  that  there  was  nothing 
in  those  letters  to  prevent  the  admission  from 
carrying  with  it  a  promise  to  pay  ;  and  that  the 
case  was  taken  out  of  the  Statute  of  Limitations, 
and  the  plaintiff  was  entitled  to  have  a  covenant 
for  the  payment  of  principal  and  interest.  Firth 
v.  Slingsby,  58  L.  T.  481— Stirling,  J. 

Simple  Contract  Debt — Payment  of  Interest 
liy  Tenant  for  Life.] — Payment  by  a  devisee 
for  life  of  interest  on  a  simple  contract  debt  of 
his  testator,  is  a  sufficient  acknowledgment  to 
keep  the  right  of  action  alive  against  all  parties 
interested  in  remainder.  The  law  in  regard 
to  the  payment  of  interest  by  a  tenant  for  life 
on  a  simple  contract  debt  stands  on  the  same 
footing  as  that  in  respect  of  payment  of  interest 
on  a  specialty  debt.  Roddam  v.  Motley  (1  De 
O.  &  J.  1)  discussed  and  considered.  Hollings- 
head,  In  re,  Hailing  she  ad  v.  Webster,  37  Ch.  D. 
«51  ;  57  L.  J.,  Ch.  400  ;  58  L.  T.  758  ;  36  W.  R. 
660— Chitty,  J. 

Payment  of  Interest  by  Agent.]— N.,  a  solici- 
tor, lent  money  to  S.,  a  client,  on  equitable 
mortgage,  and  on  the  12th  of  February,  1866, 
«n  account  was  settled  between  them  as  to  the 
amount  due.  After  this  there  were  no  entries 
relating  to  S.  in  N.'s  ledger.  In  July,  1878,  S. 
assigned  the  mortgaged  property  to  his  two 
nephews,  subject  to  all  incumbrances.  In  a 
diary  kept  by  N.,  who  had  since  died,  was  an 
entry  dated  the  10th  of  September,  1878,  of  the 
receipt  of  money  from  S.  for  interest.  There 
was  nothing  else  to  show  payment  of  interest 
After  1866.  S.,  in  1863,  mortgaged  other  pro- 
perty to  A.,  a  client  of  N.  N.  paid  interest  on 
the  mortgage  and  charged  S.  with  it  in  account 
till  1866.  After  this  N.  went  on  paying  interest 
to  A.,  who  believed  that  it  came  from  §.,  but  it 
was  not  shown  that  N.  had  ever  acted  as  solicitor 
to  8.  after  1866,  nor  was  there  anything  showing 
that  N.  was  authorised  to  make  the  payments  as 
Agent  for  S. : — Held,  that  assuming  the  entry 


to  be  admissible  in  evidence,  as  to  which  the 
court  gave  no  opinion,  it  proved  nothing  but  a 
payment  on  account  of  interest  by  a  person 
who,  when  he  made  it,  had  no  interest  in  the 
mortgaged  property,  and  was  not  shown  to  be 
agent  of  the  assignees,  and  that  this  could  not 
take  the  case  out  of  the  statute  as  against  the 
assignees,  and  that  the  payments  of  interest 
after  1866  did  not  take  the  case  out  of  the 
Statute  of  Limitations.  Newbould  v.  Smith,  S3 
Ch.  D.  127  ;  55  L.  J.,  Ch.  788  ;  55  L.  T.  194 ;  JW 
W.  R.  690— C.  A.  Affirmed  87  L.  T.  Jour.  256 
— H.  L.  (B.). 

Bond  by  Sureties  for  Payment  of  Mortgage 
Debt — Payment  of  Interest  by  Mortgagor.]— 
In  1867,  T.  P.  mortgaged  an  estate  to  L  and  A. 
for  1,0002.,  and  at  the  same  time  B.  P.  and  C.  P. 
gave  to  L.  and  A.  a  joint  and  several  bond  in  the 
penal  sum  of  400  J.,  reciting  that  the  1,0002.  had 
been  advanced  at  the  bequest  of  B.  P.  and  C  P., 
and  that  they  had  agreed  to  give  as  a  better 
security  for  part  thereof  a  bond  conditioned  for 
payment  of  2002.  and  interest.  The  bond  was 
conditioned  to  be  void  if  the  mortgagor  paid  the 
mortgage  money  and  interest  according  to  his 
covenant.  T.  P.  paid  the  interest  till  December 
1877,  after  which  it  fell  into  arrear,  and  in  1880 
the  mortgagees  entered  into  possession.  E.  P. 
died  in  1883,  without  having  made  any  payment 
or  given  any  acknowledgment.  L.  and  A  as  ere- 
ditors  under  the  bond,  took  out  a  summons  for 
administration  of  his  estate.  £.  P.'s  represen- 
tatives disputed  the  claim  on  the  ground  tint 
this  was  a  proceeding  to  recover  money  secured 
on  land,  and  was  barred  by  the  lapse  of  twelve 
years  under  the  Real  Property  Limitation  Act, 
1874  : — Held,  that  this  was  not  a  proceeding  to 
recover  money  secured  on  land,  but  to  recover 
damages  because  another  person  failed  to  paj 
money  secured  on  land,  and  that  it  did  not  come 
within  the  scope  of  the  Real  Property  limita- 
tion Act,  1874,  s.  8.  Held,  further,  that  if  the 
remedy  on  the  bond  had  been  barrable  by  the 
lapse  of  twelve  years  under  that  section,  the 
payments  of  interest  by  the  mortgagor  would 
have  prevented  the  bar.  Held,  therefore,  that 
L.  and  A.  were  entitled  to  rank  as  creditors 
against  the  estate  of  B.  P.,  and  that  if  his  repre- 
sentatives did  not  admit  assets,  an  administra- 
tion order  must  be  made.  Sutton  v.  Sutton  (23 
Ch.  511)  ;  Marnside'y.  Flint  (22  Ch.  D.  579); 
and  Cockrill  v.  Sparks  (1  H.  &  C.  699),  distin- 
guished. Powers,  Jn  re,  Lindsell  v.  Philtift, 
30  Ch.  D.  291 ;  53  L.  T.  647— C.  A. 

Payment  by  other  than  Mortgagor  or 
Agent] — The  rule  that  the  only  person  whose 
payment  on  account  will  prevent  foreclosure 
from  being  barred  is  the  mortgagor,  or  his  privy 
in  estate,  or  the  agent  of  either  of  them,  most 
be  qualified  so  as  to  include  any  person  who  by 
the  terms  of  the  mortgage  contract  is  entitled 
to  make  payments.  Where  H.  and  W.  each 
mortgaged  some  property  to  the  obligee  of  their 
joint  and  several  bond,  to  secure  the  amount  of 
the  obligation,  the  latter  as  between  the  debtors 
being  surety  only,  H.  being  bound  to  pay 
principal  and  interest,  and  expressly  named  as  a 
person  entitled  to  redeem  both  mortgages,  W. 
never  having  made  any  payment  at  all : — Held, 
in  a  suit  for  foreclosure,  that  the  period  of  limi- 
tation prescribed  by  s.  30  of  c  84  of  the  Con- 
solidated Statutes  of  New  Brunswick  ran  in 


1149 


LIMITATIONS,    STATUTE    OF. 


1150 


respect  of  both  mortgages  from  the  date  of  the 
last  payment  of  interest  by  H.  Lewin  v.  Wilson, 
11  App.  Gas.  639  ;  55  L.  J.,  P.  C.  75  ;  65  L.  T. 
410-P.  C. 


IL    ACTIONS  BELATING  TO  LAND. 

Action  to  recover  Land — Pos session  of  Tenants 
-Eaoeipt  of  Bents  by  Agents— Batineation.] 
By  3  k  4  WilL  4,  c  27,  s.  8,  "  When  any 
person  shall  be  in  possession  of*  any  land  as 
tenant  from  year  to  year  or  other  period,  without 
any  lease  in  writing,  the  right  of  the  person 
entitled  subject  thereto,  or  of  the  person  through 
whom  he  claims,  to  bring  an  action  to  recover 
such  land,  shall  be  deemed  to  have  first  accrued 
at  the  determination  of  the  first  of  such  years  or 
other  periods,  or  at  the  last  time  when  any  rent 
payable  in  respect  of  such  tenancy  shall  have 
been  received  (which  shall  last  happen)."  In  an 
action  to  recover  land  by  the  plaintiff  as  assignee 
of  the  co-heiresses  of  D.,  the  owner  in  fee  of  the 
land,  who  died  intestate,  it  appeared  that  after 
D.'s  death  the  defendant,  who  had  previously 
acted  as  her  agent  and  bailiff,  continued  to 
receive  the  rents  of  the  land,  which  he  paid  into 
a  bank,  stating  that  he  was  acting  on  behalf  of 
the  true  heir-at-law,  and  that  he  was  ready  to 
account  to  the  heir-at-law  when  ascertained.  It 
did  not  appear  that  these  statements  were  ever 
communicated  to  the  co-heiresses,  or  that  the 
plaintiff  in  any  way  acted  on  the  faith  of  them  : 
—Held,  that  the  co-heiresses  could  not  be  taken 
to  have  been  "  in  possession  "  of  the  land  through 
the  tenants  so  as  to  prevent  the  statute  running 
from  the  end  of  the  first  year  or  other  period  of 
tke  tenancy.  LyeU  v.  Kennedy,  18  Q.  B.  D. 
2«;  56  L.  J.,  Q.  B.  303  ;  56  L.  T.  647  :  35 
W.  R  725-C.  A.  Beversed,  W.  N.,  1889,  p.  160 
-H.L.(E.). 

By  3*4  Will.  4,  c.  27,  s.  34,  it  is  provided 
™  u  At  the  determination  of  the  period  limited 
by  this  act  for  making  an  entry  or  distress,  or 
bringing  an  action,  the  right  and  title  to  the 
™  for  the  recovery  whereof  an  entry,  distress, 
or  actkm  might  have  been  made  or  brought 
▼ithin  such  period  shall  be  extinguished  "  : — 
Held,  first,  that  it  was  not  shown  that  the 
<*efendant  in  receiving  the  rents  had  acted  in 
toe  name  of  the  co-heiresses  or  the  rightful  owner 
of  the  land ;  secondly,  that  in  any  case  it  was 
not  competent  for  the  co-heiresses  after  the  ex- 
piration of  the  statutory  period  to  ratify  the  acts 
of  the  defendant  so  as  to  make  his  receipt  of  the 
«nts  their  receipt     lb. 

Art  etases  to  run  against  lawful  Owner 
™*  Intruder  relinquishes  Possession.]— The 
limitation  Act  (3  &  4  WilL  4,  c.  27),  does  not 
continue  to  run  against  the  rightful  owner  of 
tad  after  an  intruder  has  relinquished  possession 
^itoont  acquiring  title  under  the  act.  Posses- 
*oo  so  abandoned  leaves  the  rightful  owner  in 
toe  same  position  in  all  respects  as  he  was  before 
we  intrusion  took  place.  The  act  applies  not  to 
*«rtof  possession  by  the  plaintiff,  but  to  cases 
*here  he  has  been  out  of,  and  another  in,  pos- 
•«>on  for  the  prescribed  time.  Trustees  and 
#«**  Company  v.  Short,  13  App.  Cas.  793  ; 
«L.  J.  P.  C.  4  ;  59  L.  T.  677  ;  37  W.  B.  433  j 
«  J.  P.  132— P.  C. 


Globe  Land— Purohase  of  adjoining  Land  by 
Beotor — Promiscuous  Occupation.] — In  1846, 
H.  W.,  the  rector  of  the  parish  of  C.,  purchased 
under  the  provisions  of  an  Inclosure  Act,  a 
number  of  plots  of  waste  land  adjoining  the 
glebe,  removed  the  old  boundaries,  and  occupied 
the  ancient  glebe  and  the  new  inclosures  indis- 
criminately. H.  W.  died  in  1850,  and  was 
succeeded  by  P.  as  rector.  P.  died  in  1855,  and 
was  succeeded  by  B.  Both  P.  and  B.  occupied 
the  whole  land,  as  H.  W.  had  done  previously. 
In  1862,  B.  built  and  laid  out  a  school,  cottage, 
and  garden  on  one  of  the  plots  of  land  so  pur- 
chased by  H.  W.,  and  the  school  was  placed 
under  the  management  of  a  committee.  On  12th 
Nov.,  1883,  the  defendant,  who  was  the  grandson 
and  had  succeeded  to  the  real  estate  of  H.  W., 
granted  a  lease  of  the  school,  cottage,  and  garden 
to  B.  and  the  churchwardens  and  their  successors 
for  ninety -nine  years  at  five  shillings  a  year,  with 
a  proviso  for  increase  on  a  certain  event.  On 
14th  Nov.,  1883,  B.  resigned  the  benefice,  and 
was  succeeded  by  the  plaintiff,  who  had  no  notice 
of  the  lease  till  he  had  been  in  possession  for 
three  months.  In  April,  1886,  the  defendant 
distrained  for  two  years*  rent : — Held,  that  B. 
had  not  as  rector  acquired  a  title  to  the  school, 
cottage,  and  garden  by  the  Statute  of  Limitations, 
and  consequently  there  was  no  want  of  title  in 
the  defendant.  Gibson  v.  Wise,  35  W.  B.  409 
— D. 

Semble,  that  the  lease  of  12th  Nov.,  1883, 
was  a  valid  lease  under  31  &  32  Vict,  c.  44, 
s.  1.    lb. 

Beoeipt  of  Bent  by  Father  as  Bailiff  for 
Infant  Son — Tenants  in  Common.]— A  father 
was  entitled  in  fee  to  an  undivided  moiety  of 
gavelkind  land,  the  other  moiety  of  which  be- 
longed to  his  wife  in  fee.  She  died  in  May, 
1870,  leaving  two  sons,  Samuel  and  John.  John 
was  then  an  infant.  He  attained  twenty-one  in 
1877,  and  died  in  May,  1884.  On  the  mother's 
death  her  moiety  descended  to  her  two  sons  in 
equal  shares,  as  her  co-heirs  by  the  custom  of 
gavelkind,  but  the  father  was  by  that  custom 
entitled  to  a  moiety  of  the  rents  of  her  moiety 
so  long  as  he  remained  a  widower.  On  the 
mother's  death  he  entered  into  the  receipt  of 
the  whole  of  the  rents  of  her  moiety,  and  con- 
tinued in  possession,  without  accounting  to  his 
sons  or  acknowledging  their  title  in  writing,  for 
more  than  twelve  years.  On  the  death  of  John 
in  1884,  his  interest  descended  to  his  brother 
Samuel  as  heir  of  the  mother.  In  February, 
1884,  the  father  had  married  a  second  wife,  and 
in  November,  1884,  he  died : — Held,  that,  as  to 
that  one-eighth  of  the  property  to  which  John 
became  entitled  in  possession  on  the  death  of 
his  mother,  the  father  must  be  taken  to  have 
entered  into  receipt  of  the  rents  as  bailiff  for 
his  infant  son,  and  that,  consequently,  the  title 
of  John  was  not  barred  by  a,  12  of  the  act  3  &  4 
Will.  4,  c.  27,  and  that  his  brother  Samuel  was 
entitled  to  that  one-eighth.  But  held,  that,  as 
to  Samuel's  own  one-eighth,  the  same  presump- 
tion did  not  arise,  and  that,  there  being  no 
evidence  that  the  father  had  received  the  rents 
as  agent  for  Samuel,  or  had  before  the  expira- 
tion of  the  statutory  period  acknowledged  his 
title  in  writing,  or  accounted  to  him  for  the 
rents,  the  title  of  Samuel  to  that  one-eighth  was 
barred  by  the  statute.  Consequently,  Samuel 
was  entitled  to  three-eighths  of  the  whole  pro- 


1151 


LIMITATIONS,   STATUTE    OF. 


1152 


perty  and  the  remaining  five-eighths  passed  under 
the  father's  will.  Hobbs,  In  re,  Hobbs  v.  Wade, 
36  Ch.  D.  553  ;  57  L.  J.,  Ch.  184  ;  58  L.  T.  9  ; 
36  W.  R.  445— North,  J. 

Particular  Estate  in  Land— Estate  in  Re- 
mainder expectant  thereon  —  Conveyance  of 
Particular  Estate—"  Person  last  entitled."]— 
Where  a  person  entitled  to  a  particular  estate 
in  respect  of  which  land  is  held  or  the  profits 
thereof  or  rent  received,  and  upon  which  a 
future  estate  is  expectant,  conveys  away  his 
estate,  he  is  not,  when  the  particular  estate 
determines,  "  the  person  last  entitled  to  the  par- 
ticular estate  upon  which  the  future  estate  was 
expectant,"  and  consequently  the  proviso  in  s.  2 
of  the  Real  Property  Limitation  Act,  1874,  does 
not  apply  to  limit  the  time  within  which  the 
person  who  on  the  determination  of  the  par- 
ticular estate  becomes  entitled  to  an  estate  in 
possession  may  make  an  entry  or  distress  or 
bring  an  action  to  recover  such  land  or  rent. 
Pedder  v.  Hunt,  18  Q.  B.  D.  565  ;  56  L.  J.,  Q.  B. 
212  ;  56  L.  T.  687  ;  35  W.  R.  371— C.  A. 

A  testator  devised  certain  land  to  his  sons 
successively  for  life,  beginning  with  the  youngest, 
and  after  their  death  "  to  be  for  ever  enjoyed  by 
the  oldest  surviving  heir  of  his  oldest  surviving 
son  for  their  life  or  lives  for  ever."  The  eldest 
surviving  son  being  in  possession  executed,  more 
than  six  years  before  his  death,  a  conveyance  in 
fee  to  the  defendant.  He  left  one  son,  who 
more  than  six  but  within  twelve  years  after  his 
father's  death  brought  this  action  to  recover 
possession  of  the  land,  claiming  as  devisee  under 
the  will  of  the  testator : — Held,  that  the  claim 
was  not  barred,  as  the  plaintiffs  father,  having 
conveyed  away  his  life  estate,  was  not  "the 
person  last  entitled  to  the  particular  estate  "  on 
which  the  plaintiffs  estate  in  remainder  was 
expectant  within  the  meaning  of  the  proviso  in 
s.  2  of  the  Real  Property  Limitation  Act,  1874. 
lb. 

Mortgagor  and  Mortgagee  the  same— Pay- 
ment—Trustees.] — S.  was,  under  a  will,  entitled 
for  her  life  to  the  interest  on  a  sum  of  money 
which  had  been  invested  by  the  trustees  of  the 
will  on  mortgage  of  land.  The  mortgagor  had 
afterwards  conveyed  the  land  (subject  to  the 
mortgage)  to  trustees  on  trust  for  S.  for  her  life. 
During  her  life  she  received  and  retained  the 
rents  for  more  than  twenty  years : — Held,  that 
though  no  interest  had  been  actually  paid,  yet 
as  the  person  who  was  entitled  to  the  rents  was 
also  entitled  to  the  interest,  the  rights  of  the 
trustee  of  the  mortgage  were  not  barred  by 
3  &  4  WilL  4,  c.  27,  s.  40,  and  that  the  fact  of 
the  rents  being  payable  to  one  set  of  trustees 
and  the  interest  being  payable  to  another  set  of 
trustees  did  not  alter  the  case  where  the  cestui 
que  trust  was  in  each  case  the  same.  Burrell 
v.  Earl  of  Egremont  (7  Beav.  205)  followed  and 
explained.  Topham  v.  Booth,  35  Ch.  D.  607 ; 
56  L.  J.,  Ch.  812  ;  57  L.  T.  170  ;  35  W.  R.  716— 
Kekewich,  J. 

Mortgagee's  Right  to  retain  more  than  Six 
Tears'  Arrears  of  Interest.] — S.  42  of  the  Statute 
of  Limitations  (3  &  4  Will.  4,  c.  27)  does  not  affect 
the  right  of  a  mortgagee  who  has  sold  under  his 
power  of  sale  to  retain  out  of  the  proceeds  more 
than  six  years'  arrears  of  interest.  Marshfield, 
Jn  re,  Marshfield  v.  Hutching*,  34  Ch.  D.  721 ; 


56  L.  J.,  Ch.  599 ;  56  L.  T.  694  ;  35  W.  R.  491— 
Kay,  J. 

Bond  by  Sureties  for  Payment  of  Mortgage 
Debt.]— In  1867,  T.  P.  mortgaged  an  estate  to 
L.  and  A.  for  1,000Z.,  and  at  the  same  timeE.  P 
and  C.  P.  gave  to  L.  and  A.  a  joint  and  several 
bond  in  the  penal  sum  of  4007.,  reciting  that  the 
1,0002.  had  been  advanced  at  the  request  of  E.  P. 
and  C.  P.,  and  that  they  had  agreed  to  give  as  t 
better  security  for  part  thereof  a  bond  con- 
ditioned for  payment  of  200Z.  and  interest.  The 
bond  was  conditioned  to  be  void  if  the  mortgagor 
paid  the  mortgage  money  and  interest  according 
to  his  covenant.  T.  P.  paid  the  interest  till 
December,  1877,  after  which  it  fell  into  arrear 
and  in  1880  the  mortgagees  entered  into  posses- 
sion. R.  P.  died  in  1883  without  having  made 
any  payment  or  given  any  acknowledgment. 
L.  and  A.,  as  creditors  under  the  bond,  took  oat  a 
summons  for  administration  of  his  estate.  B.  P.'s 
representatives  disputed  the  claim  on  the  ground 
that  this  was  a  proceeding  to  recover  money 
secured  on  land,  and  was  barred  by  the  lapse  of 
twelve  years  under  the  Real  Property  Limita- 
tion Act,  1874  : — Held,  that  this  was  not  a  pro- 
ceeding to  recover  money  secured  on  land,  but 
to  recover  damages  because  another  person  failed 
to  pay  money  secured  on  land,  and  that  it  did 
not  come  within  the  scope  of  the  Real  Property 
Limitation  Act,  1874,  s.  8.  Powers,  In  re, 
Lindsell  v.  Phillips,  30  Ch.  D.  291 ;  58  L.  T. 
647— C.  A. 

Mortgage  of  Reversionary  Interest.]— Time 
begins  to  run  for  the  purpose  of  barring  a  fore- 
closure action  on  an  equitable  charge  on  a  con- 
tingent reversionary  interest  in  land  only  from 
the  time  the  interest  falls  into  possession.  HugUl 
v.  Wilkinson,  38  Ch.  D.  480 ;  67  L.  J.,  Ch.  1019; 
68  L.  T.  880  ;  36  W.  R.  633— North,  J. 

Arrears  of  Annuity  charged  on  Lands.]— N., 

being  entitled,  under  his  marriage  settlement,  to 
certain  lands,  and  also  to  a  reversionary  interest 
in  government  stock  by  deed,  granted  to  B.,  for 
valuable  consideration,  an  annuity  for  N.'s  life 
charged  on  the  lands  and  stock,  covenanted 
with  B.  to  pay  the  annuity,  and  granted  the 
lands  to  a  trustee  to  secure  it.  In  1856  N. 
became  entitled,  in  possession,  to  the  stock,  and 
the  trustees  of  the  settlement  transferred  it  into 
court,  under  the  Trustee  Relief  Act,  to  the  credit 
of  the  trusts  of  the  settlement.  The  annuity  was 
paid  until  1867.  In  1879  N.  died ;  in  1885,  on 
the  distribution  of  the  fund,  a  claim  was  lodged 
by  B.'s  executors  for  the  arrears  of  the  annuity 
accrued  between  1867  and  1879  :— Held,  that 
the  claim  was  barred  by  the  Statutes  of  Limita- 
tion (3  &  4  Will.  4,  c.  27,  and  37  &  38  Viet 
c.  57).  NugenVs  Trusts,  In  re,  19  L.  R.,  Ir.  140 
— M.  R. 

By  an  indenture  executed  in  1833,  real  estate 
was  conveyed  to  trustees  and  their  heirs  upon 
trust  as  to  one  moiety  that  immediately  after 
the  death  of  M.  C.  they  should  out  of  the  moiety 
and  the  rents  and  profits  thereof  pay  unto  J.  M-> 
and  to  his  heirs  and  assigns,  or  permit  him  or 
them  to  receive  it,  an  annuity  of  91.  half-yearly. 
M.  C.  died  in  1857.  No  payment  was  ever  made 
in  respect  of  the  annuity,  and  the  annuitant  first 
made  a  claim  in  1884.  The  chief  clerk  had 
certified  that  he  was  entitled  to  a  perpetual 
annuity.    On  summons  to  vary  the  certificate : 


1153 


LIMITATIONS,    STATUTE    OF. 


1154 


—Held,  that  by  8.  1  of  the  act  37  &  38  Vict, 
c.  57,  no  proceedings  to  recover  any  "rent" 
(which,  inasmuch  as  by  s.  9  the  act  must  be 
construed  with  the  3  &  4  Will.  4,  c.  27,  meant 
bj  the  interpretation  clause  of  that  act,  any 
annuity  charged  upon  land)  could  be  taken 
after  twelve  years  from  the  time  when  the  right 
first  accrued,  therefore  if  there  had  not  been  any 
trust,  those  twelve  years  having  elapsed,  none 
of  the  past  instalments  of  the  annuity  could  be 
recovered,  and  that  the  effect  of  s.  10  of  the 
37  k  38  Vict.  c.  67,  was  that  no  payment  of  the 
annuity  which  became  due  before  the  applica- 
tion was  made  was  recoverable,  the  remedy  being 
only  the  same  as  if  there  had  not  been  any  trust. 
Jhgkes  v.  (hit*,  27  Ch.  D.  231  ;  53  L.  J.,  Ch. 
1047 ;  51  L.  T.  226  ;  33  W.  R.  27— Kay,  J. 

An  annuity  given  by  will  and  charged  on  all 
the  testator's  real  and  personal  estate  is  within 
37  k  38  Vict.  c.  57.  s.  8,  and  is  barred  by  non- 
payment of  the  gales  for  twelve  years.  Dower 
t.  Jkwer,  16  L.  R.,  Ir.  264— M.  R. 

Periodical  8ums  charged  on  Land— Tithes.] — 

The  statute  and  decree  of  37  Hen.  8,  c.  12,  pro- 
vided that  the  inhabitants  of  the  city  of  London 
for  the  time  being  should  yearly  for  ever  pay 
their  tithes  in  respect  of  their  houses  after  cer- 
tain rates : — Held,  that  these  payments  imposed 
were  "annuities  or  periodical  sums  of  money 
charged  upon  land  "  within  the  meaning  of  the 
Statute  of  Limitations,  3  &  4  Will.  4,  c.  27,  s.  1, 
and  that  that  statute  (as  amended  by  37  &  38 
Vict  c.  57)  afforded  a  defence  to  the  action. 
Payne  v.  Esdaile,  13  App.  Cas.  613 ;  58  L.  J., 
Ch.299;  59  L.  T.  568;  37  W.  R.  273  ;  53  J.  P. 
10Q-H.  L.  (B.). 

Tithe     Bent  -  charge  —  '<  Composition  "  — 

"lent"] — A  tithe  rent-charge  under  the  Irish 
Tithe  Commutation  Act  (1  &  2  Vict.  c.  109)  is 
not  a 4I  composition  "  within  s.  1  of  the  Statute 
of  Limitations  (3  &  4  Will.  4,  c.  27),  but  a 
"rent "  within  s.  2  of  the  statute,  and  therefore, 
where  a  tithe  rent-charge  was  transferred  by  act 
of  Parliament  from  a  spiritual  corporation  sole 
to  a  lay  corporation  : — Held,  that  at  the  time  of 
the  transfer  the  period  of  limitation  against  the 
transferees  should  be  reckoned  from  the  time 
when  the  right  to  enter,  distrain  or  bring  an 
action  first  accrued  to  the  former  spiritual  cor- 
poration sole  through  whom  they  claimed.  Irish 
land  Commission  v.  Grant,  10  App.  Cas.  14  ;  52 
L.T.  228 ;  33  W.  R.  357— H.  L.  (Ir.). 

Covenant  to  pay  Bent  or  Royalty— Arrears.] 
—A  lease,  dated  in  1859,  of  mines  contained  a 
covenant  by  the  lessees  to  pay  a  rent  or  royalty 
in  respect  of  minerals  from  other  lands  carried, 
bj  or  by  the  authority  of  the  lessees,  over  the 
"nrfaceof  the  mining  ground.  In  1883,  an 
action  on  the  covenant  was  brought  to  recover 
royalties  in  respect  of  minerals  so  carried  since 
18fi6  i-Hcld,  that  the  act  37  &  38  Vict.  c.  57, 
*•  8, did  not  apply;  but  that  on  the  ruling  in 
H*nter  y.  Nod  old*  (1  Mac.  &  Gor.  640),  the 
plaintiff  was  entitled  to  an  account  of  the 
royalties  become  payable  since  1866.  Barley  v. 
ftwwrt,  53  L.  T.  257— North,  J. 

Chattel  Interest  in  Land  -  Administrator— 
leaning  of  Time.]— Under  the  Statute  of  Limi- 
tations, 1833  (3  *  4  WilL  4,  c.  27),  a.  6,  time 
tegim  to  run  ae  againit  an  administrator  claim- 


ing a  chattel  interest  in  land  from  the  date  of 
the  death  of  the  intestate,  and  not  from  the  date 
of  the  grant  of  administration.  Williams,  In  re, 
Bavies  v.  Williams,  34  Ch.  D.  558  ;  56  L.  J.,  Ch. 
123  ;  55  L.  T.  633  ;  35  W.  R.  182— Stirling,  J. 


III.     EQUITABLE    DEMANDS. 

Wife's  Separate  Estate  —  Simple  Contract 
Debt.] — In  1875  a  married  woman  borrowed 
money  from  her  husband  upon  a  parol  agree* 
ment  to  repay  him  the  amount  with  interest  out 
of  her  separate  estate.  She  died  in  1884,  with- 
out having  paid  anything  in  respect  either  of 
interest  or  principal,  and  without  having  given 
any  acknowledgment  in  writing  of  her  liability 
to  repay  the  debt.  After  her  death  her  husband 
claimed  repayment : — Held,  that  the  debt  was 
barred  by  analogy  to  the  Statute  of  Limitations. 
Norton  v.  TurvUl  (2  P.  Wms.  144)  explained. 
Hastings  (Ladtf),  In  re,  Hallett  v.  Hastings,  35 
Ch.  D.  94  ;  56  L.  J.,  Ch.  631  ;  57  L.  T.  126  ;  35 
W.  R.  684  ;  52  J.  P.  100— C.  A. 

Payment  off  of  Mortgage— Claim  against  Re- 
siduary Legatees.]— In  1843  G.  mortgaged  to  a 
firm  of  solicitors  a  freehold  farm,  and  also  the 
furniture  and  farming  stock,  the  mortgagor  being 
permitted  to  use  the  furniture  and  stock  but  not 
to  sell  without  consent  of  the  mortgagees.     In 
1859  6.  died,  having  by  his  will  bequeathed  the 
furniture  to  his  unmarried  daughters  and  devised 
the  farm  to  A.,  B.  and  C.  upon  trust  to  allow  his 
unmarried  daughters  to  occupy  it,  they  keeping 
down    the  mortgage  interest,  and  having  be- 
queathed his  residuary  personal  estate  to  A.,  B. 
and  C,  whom  he  appointed  executors  upon  trust 
for  sale  and  division  among  his  children.    By  a 
codicil  the  testator  directed  that  his  unmarried 
daughters  should  pay  a  rent  of  6002.  for  the  farm, 
and  on  their  giving  it  up  it  should  be  let.  Under 
the  provisions  of  the  will,  and  with  the  know- 
ledge of  the  mortgagees,  who  made  no  objection, 
two  of  the  testator's  four  daughters  continued  to 
carry  on  the  farm  as  tenants  to  the  trustees  of 
the  will,  and  for  that  purpose  used  the  furniture 
and  took  part  of  the  farming  stock  at  a  valua- 
tion as  against  their  shares  of  residue.    In  1861 
the  executors,  with  the  knowledge  of  the  mort- 
gagees, sold  the  remainder  of  the  testator's  re- 
siduary personal  estate,  consisting  almost  en- 
tirely of  farming  stock,  and  distributed  the  pro-, 
ceeds  among  the  residuary  legatees  pursuant  to 
the  trusts  of  the  will,  the  two  daughters  who 
were  tenants  of  the  farm  applying  their  shares  in 
carrying  it  on.    In  1863  one  of  these  two  daugh- 
ters married,  whereupon  her  husband  took  a  lease 
from  the  trustees,  and  bought  out  the  interest  of 
the  unmarried  daughter  in  the  stock  and  fur- 
niture.   The  interest  on  the  mortgage  was,  by 
the  direction  of  the  trustees,  paid  to  the  mort- 
gagees by  the  tenants  of  the  farm  out  of  the  rent, 
the  mortgagees  giving  receipts  to  the  tenants- 
only.    In  1882,  the  interest  having  been  unpaid 
from  August,  1880,  and  the  security  being  worth- 
less owing  to  an  existing  prior  mortgage,  the 
legal  personal  representative  of  the  surviving 
mortgagee  sued  G.'s  executors  for  an  alleged  de- 
vastavit in  having  distributed  G.'s  residuary  per- 
sonal estate  without  providing  for  the  mortgage 
debt  {Blake  v.  Gale  (22  Ch.  D.  820)),  when  it 
was  declared  that  the  executors  were  not  liable 

P  P 


1165 


LIS   PENDENS. 


1156 


for  a  devastavit,  bat  judgment  was  pronounced 
for  a  sale  of  the  mortgaged  premises,  and  for 
administration  of  G.'s  estate.  Under  that  judg- 
ment the  chief  clerk  certified  that  the  security 
was  unsaleable,  and  allowed  the  payments  by 
the  executors  to  the  residuary  legatees,  but  the 
order  on  further  consideration  was  made  without 
prejudice  to  any  proceedings  the  plaintiff  might 
take  against  any  other  persons  than  the  execu- 
tors. Thereupon,  in  1885,  the  plaintiff  brought 
an  action  against  the  residuary  legatees  for  pay- 
ment of  the  mortgage  debt  out  of  G.'s  assets 
received  by  them.  The  defendants  pleaded  the 
Statute  of  Limitations,  delay,  and  acquiescence : 
— Held,  that  although  the  legal  debt  under  the 
mortgage  was  still  subsisting,  and  was  in  no  way 
barred  by  statute,  yet  that  the  plaintiffs  claim 
against  the  residuary  legatees,  being  in  the  nature 
of  an  equitable  demand,  was  barred  by  lapse  of 
time  and  acquiescence.  Blake  v.  Gale,  32  Ch. 
D.  671 ;  66  L.  J.,  Ch.  669 ;  65  L.  T.  234  ;  34 
W.  B.  656—0.  A. 


LIQUIDATED    DAMAGES. 

See  PENALTY. 


LIQUIDATION. 

In  Bankruptcy.]— See  Bankruptcy, 
In  Winding-up.]— See  Company. 


LIS  PENDENS. 

Creditors'  Administration  Action— Beal  Estate 
specifically  Devised— Priority.]— Where  debts 
are  charged  upon  a  testator's  real  estate  by  his 
will,  or  as  judgment  debts  under  the  old  law,  an 
action  by  a  creditor  for  the  administration  of 
the  real  and  personal  estate  is  a  lis  pendens 
which,  when  registered,  gives  the  plaintiff 
priority  over  a  purchaser  or  mortgagee  from  any 
defendant  entitled  to  real  estate  under  the  will, 
except  where  the  defendant  is  in  such  a  position 
that  the  purchaser  or  mortgagee  has  a  right  to 
suppose  he  is  selling  or  mortgaging  for  the  pur- 
pose of  paying  the  testator's  debts.  Price  v. 
Price,  35  Ch.  D.  297  ;  56  L.  J.,  Ch.  530 ;  56  L.  T. 
842  ;  35  W.  B.  386— Kay,  J. 

A  creditor's  action  for  general  administration 
may  be  a  sufficient  lis  pendens,  before  final 
decree,  so  as  to  entitle  the  plaintiff  to  priority 
over  a  purchaser  or  mortgagee  taking,  subse- 
quently to  the  registration  of  the  lis,  from  a 
specific  devisee  who  is  a  defendant,  if  the  plain- 
tiff, previously  to  the  purchase  or  mortgage,  has 
sufficiently  indicated  tne  real  estate  sought  to  be 
charged  in  the  action  ;  a  mere  general  claim  for 


administration  of  the  real  and  personal  estate 
not  being  of  itself  a  sufficient  indication  of  in- 
tention to  make  liable  the  specifically  devised 
real  estate.  Drew  v.  Earl  of  Norbury  (3  J.  k 
Lat.  267),  and  Walker  v.  Flanutead  (2  Keny., 
part  2,  p.  57),  considered.    lb. 

Vacating  Begistration— Application  by  Per- 
son not  a  Party  to  Action.] — Where  an  action 
is  improperly  registered  as  a  lis  pendens  against 
a  person  who  is  not  a  party  thereto,  the  court 
has  jurisdiction  to  vacate  the  registration  under 
30  &  31  Vict.  c.  47,  s.  2,  notwithstanding  that 
the  action  is  being  prosecuted  bona  fide  by  the 
plaintiff  as  against  the  defendant.  Sehofield 
v.  Solomon,  54  L.  J.,  Ch.  1101  ;  52  L.  T.  679- 
Kay,  J. 

Effect  of  Begistration— Hottoa  to  Mortgagee.] 

— Registration  of  a  petition  for  sale  by  the 
second  mortgagee  as  a  lis  pendens,  has  not  the 
effect  of  notice  to  the  first  mortgagee,  so  as  to 
affect  the  priority  of  further  advances  made  by 
him  in  ignorance  of  such  petition  and  registra- 
tion. Jaawes,  Em  parte,  Byrne,  In  re,  16  L.  B., 
Ir.  37:*— C.  A. 


LIVERPOOL. 

Court  of  Passage.] — See  Court. 


LOCAL    AUTHORITY    AND 
LOCAL    GOVERNMENT. 

See  HEALTH. 
In  Metropolis.]— See  Mbtbopolib, 


LOCOMOTIVE. 

See  WAY. 


LODGER. 

Bight  of  voting  at  Elections.]— See  Blbotio* 
Law. 

Protection  of  Goods   from   Distress.]  —  ** 

Landlord  and  Tenant. 

Bye4awsastoLodging-Houses0— ^Hsjllth. 


1157 


LOTTERY— LUNATIC. 


1158 


LONDON. 

See  METROPOLIS. 
Import  Duos  on  Grain.]— &«  Tolls. 


LOTTERY. 

sale  of  Packet*  of  Toa  containing  Coupon*  for 
Prim]— By  42  Geo.  3,  c.  119, 8.  2,  it  is  made  an 
offence  to  keep  any  office  or  place  to  exercise  any 
lottery  not  authorised  by  parliament.  The  appel- 
lant erected  a  tent,  in  which  he  sold  packets, 
each  containing  a  pound  of  tea,  at  2*.  6d.  a 
packet  In  each  packet  was  a  coupon  entitling 
the  purchaser  to  a  prize,  and  this  was  publicly 
stated  by  the  appellant  before  the  sale,  but  the 
purchasers  did  not  know  until  after  the  sale  what 
prizes  they  were  entitled  to,  and  the  prizes  varied 
in  character  and  value.  The  tea  was  good  and 
worth  the  money  paid  for  it : — Held,  that  what 
the  appellant  did  constituted  a  lottery  within 
the  meaning  of  the  statute.  Taylor  v.  Smetten, 
11  a  B.  D.  207  ;  52  L.  J.,  M.  C.  101 ;  48  J.  P. 
3*-D. 

Iialoring  Money  in  Packets.]— H.  kept  a  shop 
for  the  sale  of  sweets  and  sold  penny  packets  of 
caramel,  several  of  which  packets  contained  a 
halfpenny  in  addition  to  a  fair  pennyworth  of 
•weets.  There  had  been  no  advertisement  as  to 
these  inclosures: — Held,  that  H.  was  rightly 
convicted  under  42  Geo.  3,  c  119,  s.  2,  of  keeping 
*  lottery.    Hunt  v.  William*,  62  J.  P.  821— D. 


LUGGAGE. 


See  CARRIER. 


LUNATIC. 

I.  Their  Pbopbbty,  Powbbs  and  Con- 
tracts, 1158. 

H.  Maintenance  and  Allowances. 

1.  When  Ordered  by  the  Court,  1163. 

2.  Maintenance  of  Paupers,  1165. 

HI  Inquisitions,  1166. 

W.  Actions   and    Proceedings  bt  and 
against,  1167. 

V.  Custody  of,  1168. 

VI.  Ill-treatment  or,  1169. 


VII.  Appointment  of  New  Trustees.— See 
Trust  and  Trustee. 

VIII.  Asylums— Assessment  of  to  Income 
Tax. — See  Revenue. 


I.  THEIR    PBOPBBTY,   POWERS    AND 
CONTBACTS. 

Jurisdiction  of  Judges  of  Appeal  Court  to  make 
Orders  in  Chancery  Division.]— The  letter  of  the 
Lord  Chancellor  requesting  the  judges  of  the 
Court  of  Appeal  sitting  in  Lunacy  to  act  as 
additional  judges  of  the  Chancery  Division  is 
not  limited  to  petitions  under  the  Trustee  Acts, 
hut  applies  to  all  applications  in  lunacy  which 
require  also  an  exercise  of  the  jurisdiction  of  the 
Chancery  Division.  Piatt,  In  re,  36  Ch.  D.  410  ,- 
57  L.  J.,  Ch.  152  ;  57  L.  T.  857 ;  36  W.  B.  273 
— C.  A. 

Charge  of  Expense  of  Improvements.] — A 
lunatic  was  tenant  for  life  of  the  H.  estate,  and 
tenant  in  tail  in  possession  of  the  D.  estate. 
Expenses  were  incurred  by  the  committee  in 
improvements  on  both  estates,  but  chiefly  on  the 
former : — Held,  that  there  was  no  jurisdiction  to 
charge  the  D.  estate  with  the  expenses  incurred 
on  the  H.  estate.  Vavasour,  In  re,  29  Ch.  D. 
806  ;  53  L.  T.  412— C.  A. 

Bale  of  Land — Lands  Clauses  Act.] — Section  7 
of  the  Lands  Clauses  Consolidation  Act,  1845, 
does  not  authorise  a  person  of  unsound  mind  to 
sell  land  to  a  company  or  public  body  who  have 
statutory  power  to  take  it ;  the  section  only 
authorises  the  committee  of  a  lunatic  to  sell. 
Tuawell,  In  re,  27  Ch.  D.  309 ;  53  L.  J.,  Ch.  1006  ; 
51  L.  T.  88  ;  33  W.  B.  132— Pearson,  J. 

Order  for  Sale— Jurisdiction  to  Appoint  Person 
to  Convey.] — An  order  was  made  in  a  partition 
action  in  the  Court  of  Chancery  of  the  County 
Palatine  of  Lancaster  for  sale  of  the  leasehold 
estate  in  respect  of  which  the  action  was  brought. 
After  a  sale  had  been  made  it  was  discovered 
that  one  of  the  beneficiaries  was  a  lunatic,  so 
found  by  inquisition,  but  that  no  committee  had 
been  appointed.  The  Vice-Chancellor  then  made 
an  order  declaring  the  other  beneficiaries  seised 
of  the  property  upon  a  trust  within  the  meaning 
of  the  Trustee  Act,  1850,  and  the  Trustee  Exten- 
sion Act,  1852,  and  appointing  another  party  to 
the  action  to  convey  the  property  to  the  pur- 
chaser for  the  estates  of  the  beneficiaries  therein 
other  than  the  lunatic     A  petition  was  then 

E resented  to  the  Lord  Chancellor,  intituled  in 
lunacy  and  in  the  Chancery  Division,  asking 
for  a  declaration  that  the  lunatic  was  to  be 
deemed  seised  of  his  share  upon  a  trust  within 
the  meaning  of  the  Trustee  Act,  1850,  and  that 
the  same  person  might  be  appointed  to  convey 
such  property  to  the  purchaser  for  all  the  estate 
and  interest  of  the  lunatic : — Held,  that  as  the 
order  for  sale  had  been  made,  the  lunatic  was, 
under  s.  1  of  the  Trustee  Act,  1852,  to  be  deemed 
to  be  possessed  upon  a  trust  within  the  meaning 
of  the  Act  of  1850,  and  that,  although  the  rest 
of  that  section  only  gave  jurisdiction  to  the 
Chancery  Division,  the  court  sitting  in  Lunacy 
could,  under  ss.  3  and  20  of  the  Trustee  Act, 
1850,  appoint  a  person  to  convey  the  lunatic's 
interest.     Watson,  In  re,  58  L.  T.  509— C.  A. 

P  P  2 


1159 


LUNATIC — Their  Property,  Powers,  and  Contracts. 


1160 


Share  of  Real  Estate.]— The  court  has 

no  jurisdiction  under  s.  124  of  the  Lunacy  Regu- 
lation Act,  1853,  to  authorise  the  committee  of  a 
lunatic  to  sell  the  lunatic's  undivided  share  of 
land  to  the  owner  of  the  other  shares.  Weld,  In 
re,  28  Ch.  D.  614  ;  52  L.  T.  703  ;  33  W.  R.  845— 
C.  A.  S.  P.,  Woolhouse,  In  re,  28  Ch.  D.  515,  n.; 
62  L.  T.  703,  n. ;  33  W.  R.  845— Turner,  L.  J. 


Land    of  which  Lunatic  Mortgage< 


Power  of  Sale.] — The  master  in  lunacy  having 
reported  that  it  was  desirable  that  property  of 
which  the  lunatic  was  mortgagee  should  be  sold 
under  a  power  of  sale  in  the  mortgage,  the  court 
declined  to  make  an  order  authorising  the  com- 
mittee to  sell  and  to  convey  the  estate  to  the 
purchaser,  but  only  directed  him  to  sell,  leaving 
the  transfer  of  the  legal  estate  to  be  dealt  with 
on  a  subsequent  application  under  the  Trustee 
Act,  1860.  Harwood,  In  re,  35  Ch.  D.  470 ;  56 
L.  J.,  Ch.  974  ;  56  L.  T.  602  ;  36  W.  R.  27— 
C.  A. 


To  pay  Costa — Transfer  of  Mortgage 


▼osted  in  Lunatic] — There  was  no  available 
property  of  a  lunatic  wherewith  to  pay  the  costs 
of  the  inquiry  as  to  his  lunacy,  and  he  was  en- 
titled to  a  mortgage  of  freeholds.  The  mort- 
gage had  been  made  under  a  power  in  a  settle- 
ment. The  trustee  was  dead,  and  there  was  no 
one  competent  to  take  a  reconveyance,  but  a 
person  had  been  found  who  was  willing  to  take 
a  transfer  of  the  mortgage  : — Held,  that  the 
court  could  effect  this  by  ordering  the  lunatic's 
interest  in  the  land  to  be  sold,  under  s.  116  of 
the  Lunacy  Regulation  Act,  1833,  to  pay  the 
costs.    Brown,  In  re,  50  L.  T.  373 — C.  A. 

Mortgagee  of  unsound  Kind— Appointment 
of  Person  to  Transfer  Mortgage.] — Where  a 
person  of  unsound  mind  is  possessed  of  an  estate 
by  way  of  mortgage,  the  court  can,  under  the 
Trustee  Act,  1850,  s.  3,  appoint  a  person  to  con- 
vey the  estate  for  the  purpose  of  effectuating  a 
transfer  of   the   mortgage.    Nicholson,  In  re, 

34  Ch.  D.  663  ;  56  L.  J.,  Ch.  1036  ;  56  L.  T.  770  ; 

35  W.  R.  569— C.  A. 

Power  to  Mortgage— Debts  of  Prior  Owner.  1 
— A  lunatic  was  entitled  in  fee  to  one  moiety  of 
real  estate  as  one  of  the  two  co-heiresses  of  an 
ancestor  who  had  died  intestate.  The  real  estate 
was  liable  as  assets  for  payment  of  a  considerable 
amount  of  simple  contract  debts  of  the  ancestor 
which  his  personal  estate  was  insufficient  to  pay. 
The  court  authorised  the  committee  to  concur 
with  the  other  co-heiress  in  a  mortgage  of  the 
entirety  to  raise  the  amount  of  the  debts,  the 
mortgage  being  so  framed  that  the  lunatic's 
moiety  was  only  liable  for  one  moiety  of  the 
mortgage  debt  and  interest,  and  could  not  be 
made  liable  for  any  default  of  the  other  co-heiress 
in  payment  of  the  other  moiety  of  the  principal 
and  interest,  but  the  court  declined  to  authorise 
the  committee  to  enter  into  any  covenant  on 
behalf  of  the  lunatic.  Fox,  In  re,  33  Ch.  D.  37  ; 
65  L.  T.  39  ;  35  W.  R.  81— C.  A. 

Payment  off  of  Mortgage  — Ademption.  ]— 
Where  part  of  a  lunatic's  estate  was  subject  to  a 
mortgage,  which  it  was  desired  to  pay  off,  an 
order  was  made  that  the  mortgage  be  paid  off. 
without  prejudice  to  the  question  how  the  debt 
should  ultimately  be  borne,  and  that  the  mort- 


gage must  be  kept  on  foot  by  transferring  it  to 
the  committee  to  be  disposed  of  as  the  court 
might  direct.  Leeming,  In  re  (3  De  G.,  F.  k  J. 
43)  followed.  Melly,  In  re,  53  L.  J.,  Ch.  248  ; 
49  L.  T.  429— C.  A. 

Lunacy    of  one  of  several    Mortgagees.]— 

S.  3  of  the  Trustee  Act,  1850,  is  not  confined  to 
a  case  where  the  lunatic  or  person  of  unsound 
mind  is  a  sole  trustee  or  mortgagee,  but  extends 
to  the  case  where  he  is  one  of  several  trustees  or 
mortgagees.  One  of  two  trustees  being  of  un- 
sound mind,  a  new  trustee  was  appointed  in  his 
place  under  a  power : — Held,  that  the  court  had 
jurisdiction  to  appoint  a  person  to  convey  the 
interest  of  the  trustee  of  unsound  mind  in  a 
mortgage,  forming  part  of  the  trust  estate  for  the 
purpose  of  vesting  the  mortgaged  estate  in  the 
continuing  trustee  and  the  new  trustee.  Janet, 
In  re,  33  Ch.  D.  414  ;  56  L.  J.,  Ch.  272 ;  55  L.  T. 
498  ;  35  W.  R.  172— C.  A. 

Direction  to  Committee  to  transfer  Mortgage.] 
— The  court  has  jurisdiction  under  s.  3  of  the 
Trustee  Act,  1850,  where  a  mortgagee  is  a  lunatic, 
to  direct  the  committee  to  transfer  the  mortgage. 
Peel,  In  re,  65  L.  T.  554  ;  35  W.  R.  81—  C.  A. 

Consent  to  exercise  of  Power  of  Advancement 
by  Committee.] — A  marriage  settlement  con- 
tained a  power  of  advancement  exercisable  by 
the  trustees  after  the  death  of  the  husband  and 
wife,  or  at  any  time  previously  if  they  or  the 
survivor  of  them  should  direct.  The  husband 
was  found  lunatic  : — Held,  that  under  the 
Lunacy  Regulation  Act,  1853,  s.  137,  the  court 
had  jurisdiction  to  authorise  the  committee  to 
consent  on  behalf  of  the  lunatic  to  the  exercise 
of  the  power.  Nevill,  In  re,  31  Ch.  D.  161 ;  65 
L.  J.,  Ch.  435  ;  54  L.  T.  290— C.  A. 

Consent  to  Appointment  of  Hew  Trustees  by 
Committee.]  —  A  will  contained  a  power  of 
appointment  of  new  trustees  exercisable  with 
the  consent  of  the  tenant  for  life.  The  trustees 
having  died,  the  tenant  for  life  who  had  been 
found  lunatic,  presented  a  petition  in  Lunacy 
and  Chancery  by  the  committee  of  her  estate  as 
next  friend  for  the  appointment  of  new  trustees : 
— Held,  that  there  was  no  jurisdiction  in  lunacy 
to  appoint  new  trustees,  and  that  the  only  proper 
application  in  lunacy  was  to  ask  for  an  order 
authorising  the  committee  to  consent  on  behalf 
of  the  lunatic  to  an  appointment  of  trustees 
under  the  power.  Oarrod,  In  re,  31  Ch.  D.  164  : 
55  L.  J.,  Ch.  311 ;  54  L.  T.  291  ;  34  W.  R.  167— 
C.  A. 

Leave  to  Committee  to  file  Declaration  of  In- 
solvency.]— Where  it  appears  to  be  for  the  benefit 
of  a  lunatic  that  he  should  be  made  bankrupt, 
the  court  will  give  leave  to  the  committee  in  toe 
name  of  the  lunatic  to  file  a  declaration  of  in- 
solvency, or  to  present  a  bankruptcy  petition 
under  the  Bankruptcy  Act,  1883,  8.  4  (f).  Jamu, 
In  re,  12  Q.  B.  D.  332  ;  53  L.  J.,  Q.  B.  675  ;  60 
L.  T.  471— C.  A. 

Power  of  Committee  to  sue  for  Bant  aceming 
after  Death  of  Lunatic] — The  committee  of  a 
lunatic's  estate  cannot  maintain  an  action  for 
rent  issuing  out  of  a  lunatic's  freehold  estate, 
which  has  accrued  after  the  death  of  the  lunatic, 
though  reserved  by  lease  made  by  the  committee 
on  behalf  of  the  lunatic  in  which  the  It 


1161 


LUNATIC — Their  Property,  Powers,  and  Contracts. 


1162 


covenanted  with  the  committee  (as  such)    for 

Eyment  of  rent,  and  though  the  lunacy  matter 
b  not  been  dismissed  out  of  lunacy,  and  the 
committee  has  been  directed,  by  order  in  the 
matter,  to  continue  in  receipt  of  the  rents  and 
income  of  the  lunatic's  property.  Foot  v.  Leslie, 
16  L.  R..Ir.  411— Ex.  D. 


Petition  for  Application  of  Property— Notice 
signed  by  Agent  of  Solicitor.] — The  notice  of  a 
petition  under  the  Lunacy  Regulation  Act,  1862, 
sa.  12, 13, 14, 15,  which  was  served  on  an  alleged 
lunatic,  was  signed  by  the  London  agent  of  the 
petitioner's  solicitor,  expressly  as  agent : — Held, 
that  this  was  not  a  compliance  with  the  59th 
rule  of  the  Lunacy  Order,  18S3,  which  directs 
the  notice  to  be  signed  by  the  petitioner  or  his 
solicitor.  Summerville,  In  re,  31  Ch.  D.  160  ; 
55  L.  J.,  Ch.  367  ;  54  L.  T.  143  ;  34  W.  R.  185— 
C.A 

Pond  in  Court — Person  in  Hew  South  Wales 
of  Unsound  Kind  not  so   found — Payment   to 
Sifter  in  Lunacy   in  New   South  Wales.]— 
A  lady  detained  in  a  lunatic  asylum  in  New 
South   Wales,    but   not   found   a   lunatic    by 
inquisition,  was  entitled  for  life  to  the  income 
(about  30f.  a  year)  of  one  third  of  a  testator's 
residuary  estate,  and  was  absolutely  entitled  to 
a  fund  of  about  2,000/.  which  had  arisen  from 
accumulations  of   this  income.      She  had  for 
yean  been  maintained  by  the  colonial  govern- 
ment at  a  total  expense  of  8032.    By  the  New 
South  Wales  Lunacy  Act,  extensive  powers  of 
management  of  the  property  of"  lunatic  patients  " 
(Le.,  persons  detained  as  lunatics  but  not  so 
found  by  inquisition)  wese  given  to  the  master  in 
lunacy  of  New  South  Wales,  and  he  was  enabled 
to  sue  for  and  receive  debts  due  to  the  patient, 
but  the  act  did  not  vest  the  patient's  property  in 
him.    The  master  claimed  to  have  the  accu- 
mulations, which    were   in    England,  paid   to 
him,  upon  which  the  trustees  paid  them  into 
court  under  the  Trustee  Belief  Act.    The  master 
petitioned    to    have   them    paid    out   to    him. 
Kay,  J.,  ordered  payment  to  him  of  the  803Z., 
and  also  payment  to  him  of  the  income  of  the 
remainder  of  the  fund  so  long  as  the  patient 
should  be  detained  as  an  insane  patient  in  New 
South  Wales,  and  authorised  the  trustee  to  pay 
to  him  the  patient's  share  of  the  income  of  the 
residuary  estate,  which  the  trustee  undertook  to 
do.     The  master  in  lunacy  appealed  : — Held, 
that  although  the  master  could  enforce  payment 
in  New  South  Wales  of  any  sums  due  to  the 
patient,  still  as  the  patient  had  not  been  found 
lunatic,  and  her  property  was  not  vested  in  the 
master,  he  could  not  compel  payment  of  any 
moneys  due  to  the  patient  from  persons  in  this 
country,  and  that  his  claim  as  of  right  to  have 
the  whole  of  the  accumulations  made  over  to 
him  could  not  be  sustained  : — But  held,  that  a 
trustee  here,  or  the  court  acting  as  trustee,  was 
justified  in  paying  over  to  the  master  anything 
which  the  competent  authority  in  New  South 
Wales  decided  to  be  necessary  for  the  mainten- 
ance or  benefit  of  the  patient,  and  that  the  order 
therefore  was  right  in  ordering  the  payments 
which  had  been  directed  :— But  held,  that  it  was 
also  right  in  declining  to  go  further,  no  case 
having  been    made   to   show   that  more  was 
required  for   the    comfort   or  benefit   of   the 
patient    Barlow,  In  re,  Barton  v.  Spencer,  36 


Ch.  D.  287  ;  56  L.  J.,  Ch.  796  ;  57  L.  T.  95  ;  35 
W.  R.  737— C.  A. 

Fund  paid  into  Court  under  Lands  Glauses 
Act,  1846— Appointment  of  New  Committee- 
Payment  of  Dividends.] — The  dividends  arising 
from  a  sum  of  stock  in  court,  to  the  credit  of 
H.  D.  R.,  a  lunatic,  ex  parte  the  Metropolitan 
Board,  which  represented  the  purchase-money 
of  land  belonging  to  the  lunatic  taken  by  the 
Board  under  the  Lands  Clauses  Act,  1845,  were 
ordered  to  be  paid  to  the  joint  committees  of 
the  estate  of  the  lunatic.  Upon  the  death  of 
one  of  the  joint  committees  the  survivor  was 
appointed  sole  committee;  but  the  master 
declined  to  order  the  dividends  to  be  paid  to 
him,  and  a  petition  intituled  in  Lunacy  and  in 
the  Chancery  Division  was  presented  for  that 
purpose  : — Held,  that  the  dividends  ought  to  be 
transferred  to  the  lunacy  and  paid  to  the  com- 
mittee, and  that  upon  the  appointment  of  a  new 
committee  the  order  appointing  him  ought  to 
direct  payment  to  him  of  the  dividends,  and 
that  the  Metropolitan  Board  need  not  be  served 
with  the  application,  and  that  the  Board  ought 
to  pay  the  costs  of  the  petition.  Ryder,  In  re, 
37  Ch.  D.  595  ;  57  L.  J.,  Ch.  495  ;  68  L.  T.  783 
— C.A. 

Partition — Sale  by  Court — Ordor  to  Pay  Over 
—Subsequent  Lunacy  of  Beneficiary.] — On  the 

21st  May,  1879,  P.  N.  died  intestate,  leaving 
M.  H.  P.  one  of  four  co-heiresses-at-law.  On 
18th  February,  1880,  an  action  was  brought 
asking  for  sale  of  P.  N.'s  real  estate  in  lieu  of 
partition.  On  the  15th  June,  1880,  an  order  was 
made  for  sale.  The  sale  took  place  of  the  30th 
August,  1880,  and  the  proceeds  of  sale  were 
carried  to  the  credit  of  the  action,  "  proceeds  of 
the  sale  of  the  testator's  real  estate."  On  the 
22nd  of  April,  1882,  by  the  order  on  further 
consideration  in  the  said  action,  one-fourth  part 
of  the  money  standing  to  that  account  was 
ordered  to  be  paid  to  M.  H.  P.,  subject  to  duty. 
M.  H.  P.  left  the  money  in  court,  and  took  no 
steps  concerning  it.  On  the  14th  January,  1884, 
by  an  order  made  on  a  petition  presented  in 
lunacy,  T.  was  authorised  to  apply  to  the 
Chancery  division  for  a  transfer  of  the  said  one- 
fourth  amounting  to  4342. 17*.  9d.  to  the  account 
of  M.  H.  P.,  a  person  of  unsound  mind, "  proceeds 
of  the  sale  of  the  real  estate  of  P.  N.,"  and  the 
transfer  was  made  accordingly.  M.  H.  P.  died 
on  the  10th  June,  1884  : — Held,  that  there  being 
no  evidence  that  M.  H.  P.  was  of  unsound  mind 
at  the  date  of  the  sale  and  the  order  for  pay- 
ment to  her,  the  fund  then  ordered  to  be  paid  to 
her  belonged  to  her  absolutely  without  any  trust 
or  equity  for  re-conversion,  and  went  on  her  death 
to  her  personal  representatives.  Pinkard,  In  re, 
Turner  v.  Nicholson,  53  L.  T.  293 — Pearson,  J. 

Sale  of  Settled  Land— Notice  by  Committee.] 

— The  committee  of  a  lunatic  tenant  for  life 
cannot  give  a  valid  notice  under  s.  45  of  the 
Settled  Land  Act,  1882,  unless  he  has  previously 
obtained  authority  from  the  court  of  lunacy  to 
do  so.  Ray's  Settled  Estates,  In  re,  25  Ch.  D. 
464  ;  53  L.  J.,  Ch.  205  ;  60  L.  T.  80 ;  32  W.  R. 
458 — Pearson,  J. 

Declaration  that  Person  of  Unsound  Mind — 
Sufficiency.  ] — On  the  application  by  the  curator 
of  T.,  a  person  resident  in  Scotland,  for  the 


1163 


LUNATIC — Maintenance  and  Allowance*. 


1164 


transfer  of  stock  standing  in  his  name  to  the 
curator,  it  appeared  that  the  petition  on  which 
the  Scotch  court  had  appointed  the  curator  stated 
that  T.  had  been  for  several  years  of  unsound 
mind,  and  was  at  that  time  incapable  of  managing 
his  affairs.  The  only  ground  for  the  petition, 
stated  in  the  affidavits  annexed,  was  that  T.  was 
unsound  mind.  By  a  memorandum  indorsed 
on  the  petition  the  Scotch  court  appointed  the 
curator,  but  the  order  contained  no  express 
declaration  that  T.  was  of  unsound  mind.  It  was 
shown  that  curators  were  appointed  in  Scotland, 
not  only  in  cases  of  unsoundness  of  mind,  but 
also  when  persons  were,  by  illness  or  absence 
abroad,  incapable  of  managing  their  own  affairs: 
— Held,  that  the  memorandum  indorsed  on  the 
petition  amounted  to  a  declaration  within  the 
meaning  of  &  141  of  the  Lunacy  Regulation  Act, 
1853,  that  T.  was  of  unsound  mind.  Tarratt,  In 
ra,  61  L.  T.  810 ;  32  W.  R.  909— C.  A. 


II.    MAINTENANCE   AND    ALLOWANCES. 
1.  When  ordered  bt  the  Court. 

Jurisdiction  to  order  —  Person  of  Unsound 
Mind  not  so  found.] — The  Chancery  Division 
has  no  jurisdiction  to  direct  the  application  of 
the  property  of  a  person  of  unsound  mind  (not 
so  found)  for  his  maintenance  unless  there  is 
either  money  belonging  to  him  in  court,  or  the 
court  has  control  over  his  property  by  reason  of 
there  being  an  action  or  some  other  proceeding 
pending  relating  to  the  property,  farimmctt's 
Trusts,  In  re,  56  L.  J.,  Ch.  419— North,  J. 

On  a  petition  by  a  person  of  unsound  mind 
not  so  found,  who  was  married  but  had  no 
children,  and  whose  sole  property  consisted  of  a 
fund  in  court,  for  payment  of  the  whole  income 
of  the  fund,  amounting  to  21 21.  per  annum,  to 
the  wife  of  the  petitioner,  the  court  made  an 
order  as  asked,  upon  the  undertaking  by  the 
wife  to  apply  the  income  for  the  maintenance, 
comfort,  and  support  of  the  petitioner.  8ilva's 
Trusts,  In  re,  57  L.  J.,  Ch.  281  :  58  L.  T.  46 ; 
36  W.  R.  366— Chitty.  J. 

Maintenance    out   of    Capital.]  —  The 

jurisdiction  of  the  Chancery  Division  to  give 
directions  as  to  the  maintenance  of  a  person  of 
unsound  mind  not  so  found  is  not  confined  to 
applying  the  income  for  bis  maintenance,  but 
extends  to  the  application  of  capital  for  that 
purpose.  Titer's  Will,  In  re,  32  Ch.  D.  39  ; 
55  L.  J.,  Ch.  454  ;  54  L.  T.  910 ;  34  W.  R.  751— 
C.  A.     ■ 

Allowance  for  Expenses  and  preparing  De- 
fence preceding  Inquiry.] — The  court  has  juris- 
diction, where  an  inquiry  as  to  the  unsoundness 
of  mind  of  an  alleged  lunatic  is  pending,  to 
sanction  an  allowance  for  the  necessary  house- 
hold expenses  of  the  alleged  lunatic,  and  for  the 
expenses  of  preparing  his  defence  upon  the 
inquiry.  Bullock,  In  re,  55  L.  T.  722  ;  35  W.  R. 
109— C.  A. 

Property  of  Small  Amount  —  Payment  of 
Debts.] — The  power  given  by  the  Lunacy 
Regulation  Act,  1862,  s.  12,  of  making  orders  for 
the  purpose  of  rendering  the  small  property  of  a 
lunatic  available  for  his  maintenance  or  benefit, 
is  to  be  exercised  only  for  his  benefit,  and  not 


for  the  purpose  of  enabling  his  creditors  to 
obtain  payment.  Price,  In  re,  34  Ch.  D.  603 ; 
56  L.  J.,  Ch.  292  ;  66  L.  T.  77  ;  35  W.  R.  340— 
C.A. 

A  person  of  small  means  was  confined  as  a 
criminal  lunatic  in  Broadmoor  Asylum,  and 
there  appeared  no  reasonable  prospect  of  bis 
ever  being  released.  His  mother  and  brother 
applied  for  an  order  that  his  property,  along 
with  some  property  in  which  they  were  interested 
together  with  him,  might  be  applied  in  payment 
of  moneys  for  which  the  lunatic  had  given 
security,  the  mother  undertaking  to  pay  bis 
other  debts  : — Held,  that  the  application  must 
be  refused  as  not  being  for  his  benefit.    lb. 

Petition  for  Application  of  Income- 
Opposition  by  alleged  Lunatic.]  —  The  power 
£'ven  to  the  Lord  Chancellor  by  s.  12  of  the 
unacy  Regulation  Act,  1862  (extended  by  s.  3  of 
the  Lunacy  Regulation  Amendment  Act,  1882),  to 
make  an  order  for  the  application  of  the  property 
of  a  person  of  unsound  mind  for  his  maintenance 
or  benefit,  when  the  property  is  below  a  specified 
amount,  without  directing  any  inquiry  under  a 
commission  of  lunacy,  ought  not,  even  if  the 
jurisdiction  extends  to  cases  in  which  the  alleged 
lunatic  appears  and  denies  unsoundness  of  mind, 
to  be  exercised  in  such  cases.  Lees,  In  re, 
26  Ch.  D.  496  ;  53  L.  J.,  Ch.  1022  ;  50  L.  T.  489 ; 
32  W.  R.  1005— C.  A. 

Allowance  out  of  Lunatic's  Estate— Assign- 
ment of.] — On  a  decree  for  judicial  separation 
an  order  was  made  for  payment  of  601.  a  year  to 
the  wife  as  permanent  alimony.  The  husband 
was  afterwards  found  lunatic  by  inquisition,  and 
by  an  order  in  lunacy  and  chancery  the  dividends 
of  a  sum  of  stock  to  which  he  was  entitled  in  a 
chancery  suit  were  ordered  to  be  carried  to  bis 
account  in  the  lunacy,  and  601.  a  year  to  be  paid 
out  of  them  to  his  wife  in  respect  of  her  alimony 
till  further  order.  The  wife  assigned  the  annuity 
to  a  purchaser,  who  presented  a  petition  in 
lunacy,  and  in  the  suit  to  have  the  annuity  paid 
to  her  : — Held,  that  the  petition  must  be  refused,, 
on  the  ground  that  whether  the  annuity  was 
considered  as  alimony  or  as  an  allowance  made 
to  the  wife  by  the  court  in  lunacy,  it  was  not 
assignable.  Robinson,  In  re,  27  Ch  D.  160: 
53  L.  J.,  Ch.  986 ;  51  L.  T.  737  :  33  W.  R.  17— 
C.A. 

Surplus  Income— Allowances  to  Collatsralal 
— The  court  will  not  make  an  allowance  out  of 
the  surplus  income  of  a  lunatic  to  collaterals 
unless  the  evidence  shows  that  the  lunatic,  if 
sane,  would  in  all  probability  have  made  the 
proposed  allowance  himself.  Different  con- 
siderations apply  when  the  lunatic  is  entitled 
to  landed  property  and  the  collateral  is  also  the 
heir-at-law  of  the  lunatic.  Darling,  In  re, 
39  Ch.  D.  208  ;  67  L.  J.,  Ch.  891 ;  59  L.  T.  761- 
C.A. 

The  court  refused  to  make  an  allowance  to 
some  of  the  next-of-kin  of  a  lunatic,  first  cousins, 
who  were  in  indigent  circumstances,  although 
the  lunatic  was  aged  eighty-two,  and  there  was 
a  large  surplus  income  beyond  the  proposed 
allowance,  and  the  application  was  not  opposed. 
lb. 

Allowance  to  Collateral  Tenant  in  Tail 


r 


1165 


LUNATIC— Inqumtions. 


1166 


in  Remainder —  Increase  of  Allowance.] —A 
lunatic  bachelor,  who  was  incurable  and  aged 
sixty-four,  was  tenant  for  life,  there  being  a 
large  surplus  income  after  providing  for  his 
maintenance.  In  1882  the  court  made  an  allow- 
ance of  6001.  per  annum  to  his  nephew,  the 
tenant  in  tail  in  remainder,  who  was  then  un- 
married and  in  possession  of  an  income  of  2202. 
per  annum,  and,  as  protector  of  the  settlement, 
consented  to  the  entail  being  barred  to  secure 
the  allowance.  The  remainderman  having 
married  and  had  a  son  who  would  take  as  tenant 
in  tail  in  remainder  if  he  survived  his  father, 
and  having  an  income  of  3001.  per  annum 
without  the  allowance  of  5001. : — Held,  that  the 
allowance  ought  to  be  increased  by  2002.  to  be 
charged  in  the  same  way  as  the  500*.  Beridge, 
In  re,  50  L.  T.  653— C.  A. 


2.  Maintenance  of  Paupbbs. 

ftiardlans  of  the  Poor— Recovery  of  Arrears.] 

—Under  s.  104  of  the  Lunatic  Asylums  Act, 
1853,  the  guardians  of  the  poor  of  a  parish  to 
which  a  pauper  lunatic  is  chargeable  are  en- 
titled in  the  event  of  his  becoming  entitled  to 
property  to  recover  only  six  years'  arrears  in 
respect  of  the  sums  paid  by  them  for  his  main- 
tenance in  an  asylum.  Neiobegin,  In  re,  Eggle- 
t»m  v.  Newbegin,  36  Ch.  D.  477  ;  56  L.  J.,  Ch. 
907  ;  57  L.  T.  390  ;  36  W.  R.  69— Chitty,  J. 

The  deceased  had,  for  over  six  years  prior  to 
her  death,  been  supported  as  a  pauper  lunatic  at 
the  county  lunatic  asylum.  During  the  whole 
of  this  period  she  was,  in  fact,  entitled  to  an 
annuity  of  242. 16«.  6rf.,  payable  by  the  Commis- 
sioners for  the  Reduction  of  the  National  Debt. 
This  fact  only  came  to  the  knowledge  of  the 
goardians  at  the  time  of  her  death,  or  shortly 
thereafter: — Held,  that  the  claim  of  the 
goardians  was  not  limited  to  the  period  of 
twelve  months  prescribed  by  s.  16  of  the  statute, 
bat  that,  in  respect  of  such  period,  they  were 
entitled  absolutely  to  repayment,  under  the 
statute,  and,  as  to  a  further  period  not  exceed- 
ing five  years  (making  six  years  in  all),  they 
were  entitled  to  come  in  and  claim  as  ordinary 
creditors,  notwithstanding  the  fact  of  their 
having  taken  no  steps  to  recover  payment  for 
mch  expenditure  during  the  lifetime  of  the 
deceased  pauper  lunatic.  Lambeth  Guardians 
v.  Bradekaw,  57  L.  T.  86  ;  50  J.  P.  472— Butt,  J. 

Where  A.  was  maintained  as  a  pauper  lunatic, 
though  the  goardians  knew  that  he  had  some 
property,  which  was  just  sufficient  to  support 
his  wife,  on  summons  under  Ord.  XLV.  r.  1,  of 
the  Rules  of  Court,  1883,  for  payment  of  a  sum 
of  56/.  6#.  in  respect  of  such  maintenance : — 
Held,  that,  though  the  guardians  had  not  ob- 
tained an  order  from  justices  during  the  lifetime 
of  the  deceased,  they  were  entitled  to  payment. 
Webtter,  In  re,  Derby  Union  v.  Sharratt,  27 
Ch.  D.  710 ;  54  L.  J.,  Ch.  276  ;  61  L.  T.  319— 
V.-C.  B. 

Grant  of  Letters  of  Administration  to 
xTsminee.] — B.,  a  pauper  lunatic  chargeable  to 
the  guardians  of  the  Kingston  Union,  died, 
a  spinster  and  without  parents,  leaving  three 
brothers  and  one  sister  her  surviving,  all  of 
whom  renounced  their  right  to  administration. 
One  other  brother,  who  had  gone  to  America  in 
1871,  bat  who  had  not  been  heard  of  since  1883, 


was  cited  by  advertisement,  under  order  of  the 
court.  The  court,  upon  the  application  of  the 
guardians,  made  a  grant  of  administration  to  the 
clerk  to  the  board  as  their  nominee.  Byrne,  In 
Goods  of,  62  J.  P.  281— Butt,  J. 

Right  of  Guardians  to  Reimbursement — 
4 '  Person  entitled  to  receive  any  Payment  as  Bom- 
ber of  Benefltor  Friendly  Society."] — A  member  of 
a  trade  union  is  not  "  a  member  of  a  benefit  or 
friendly  society,  and  as  such  entitled  to  receive 
any  payment,"  within  the  meaning  of  the  23rd 
section  of  the  Divided  Parishes  and  Poor  Law 
Amendment  Act,  1876  (39  &  40  Vict  c  16), 
inasmuch  as  the  Trade  Unions  Act,  1871  (34  6 
35  Vict  c.  31)  expressly  declines  to  enable  any 
court  to  entertain  proceedings  to  enforce  an 
agreement  to  apply  the  funds  of  a  trade  onion 
to  provide  benefit*  for  members  ;  and  therefore 
the  guardians  cannot  under  that  section  obtain 
from  a  trade  union  the  repayment  of  expenses 
incurred  in  the  relief  of  a  pauper  lunatic  mem- 
ber. Winder  v.  Kingston-upon-Hull,  20  Q.  B.  D. 
412  ;  58  L.  T.  583  ;  52  J.  P.  636— D. 


III.  INQUISITIONS. 

Order  for  Inquiry  before  Judge  of  the  Sigh 
Court.] — When  an  issue  is  directed  by  an  order 
in  lunacy  to  try  the  question  of  the  insanity  of 
an  alleged  lunatic  before  a  judge  of  the  High 
Court  of  Justice  under  the  Lunacy  Regulation 
Act,  1862,  s.  4,  it  is  not  necessary  to  commence 
the  proceedings  by  a  writ  of  summons,  the  order 
for  the  issue  being  sufficient  to  give  jurisdiction 
to  the  judge.  Scott.  In  re,  27  Ch.  D.  116  ;  54 
L.  J.,  Ch.  194  ;  61  L.  T.  735  ;  32  W.  R.  801— 

C.  A. 

Inquiry  when  Lunacy  commenced.]  —  The 
Lunacy  Regulation  Act,  1862,  s.  3,  takes  away 
the  power  existing  under  the  Lunacy  Regulation 
Act,  1853,  s.  47,  of  directing  an  inquiry  from 
what  time  an  alleged  lunatic  has  been  of  unsound 
mind.  Opinion  expressed  by  James,  L.  J.,  in 
Sottomaior,  In  re  (9  L.  R.,  Ch.  677),  dissented 
from.  Danby,  In  re,  30  Ch.  D.  320 ;  65  L.  J.,  Ch. 
583  ;  53  L.  T.  850  ;  34  W.  R.  125—0.  A. 

Interim  Receiver — Appointment  Ex  parte — 
Pending  Application   for  Inquisition.] — In   a 

proper  case  the  court  will,  pending  an  applica- 
tion for  an  inquisition,  appoint  an  interim 
receiver  of  the  estate  of  the  supposed  lunatic, 
and  if  the  case  is  urgent  will  do  so  upon  an 
ex  parte  application.    Pountain,  In  re,  37  Ch. 

D.  609  ;  57  L.  J.,  Ch.  466  ;  69  L.  T.  76— C.  A. 

Insanity  of  Trustee— Trial   of  Question,] — 

The  court  will  not,  on  a  petition  under  the 
Trustee  Act,  1850,  remove  a  trustee  against  his 
wish.  Where  the  ground  for  a  petition  for  the 
appointment  of  a  new  trustee  is  the  alleged  in- 
sanity of  a  trustee,  and  the  insanity  is  denied 
by  him,  the  court  will  not  try  the  question 
whether  the  trustee  is  of  sound  mind,  nor  will 
it  (under  s.  52)  direct  a  commission  in  the  nature 
of  a  writ  de  lunatico  inquirendo  to  issue  concern- 
ing such  person,  the  proper  mode  of  establishing 
the  lunacy  in  such  a  case  being  on  a  petition  in 
lunacy  or  in  an  action  in  the  High  Court  to 


r       »       v     » 

1167 


LUNATIC— Custody  of. 


1168 


remove  the  trustee.     Combt,  In  re,  51  L.  T.  45 — 
C.  A. 

Costs  of  Defenoe — Allowanoe  of.]— See  Bullock, 
In  re,  ante,  col.  1163. 


IV.  ACTIONS  AND  PROCEEDINGS  BY 
AND  AGAINST. 

Partition— Person  of  Unsound  Kind  not  so 
found — Next  Friend.] — An  action  for  partition 
was  brought,  whereby  the  sale  and  distribution 
of  the  proceeds  of  certain  real  estate  were  asked 
for.  One  of  the  two  plaintiffs  was  alleged  to  be 
a  person  of  unsound  mind  not  so  found  bj  in- 
quisition, suing  by  his  next  friend.  The  defend- 
ant and  the  plaintiff  said  to  be  of  unsound  mind 
moved  that  the  name  of  the  person  of  unsound 
mind  might  be  struck  out :— Held  that  a  person 
of  unsound  mind  not  so  found  may  be  plaintiff 
suing  by  his  next  friends  in  an  action  for  the 
partition  or  sale  of  real  estate.  Porter  v. 
Porter,  37  Ch.  D.  420 ;  68  L.  T.  688  ;  36  W.  R. 
580— C.  A. 

Action  for  Recovery  of  Land — Next  Friend — 
Stay  of  Action  as  not  beneficial  to  Plaintiff.]— 
An  action  for  the  recovery  of  land  may  be 
brought  under  Ord.  XVI.  r.  17,  by  the  next 
friend  of  a  person  of  unsound  mind  not  so 
found  by  inquisition  ;  and  a  writ  issued  in  such 
an  action  by  the  next  friend,  in  the  name  of  the 
person  of  unsound  mind  is  regular.  But  where 
the  court  is  of  opinion  on  the  facts  cf  the  case 
that  such  action  is  not  a  beneficial  one  to  the 
lunatic  plaintiff,  it  will  be  stayed  by  the  court 
on  that  ground.  Waterkouse  v.  Worsnop,  59 
L.  T.  140— D. 

Service  of  Originating  Summons — Guardian  ad 
litem.] — In  an  administration  action  commenced 
by  originating  summons  when  the  defendant  is 
lunatic  not  so  found  by  inquisition,  and  makes 
default  in  appearance,  notice  of  motion  for  the 
appointment  of  a  guardian  ad  litem  should  be 
served  in  the  same  manner  as  in  the  case  of  default 
of  appearance  to  a  writ  of  summons.  Pepper,  In 
re,  Pepper  v.  Pepper,  50  L.  T.  580  ;  32  W.  R.  765 
—V.-C.  B. 

Appointment  of  New  Trustee  on  Lunacy.] — 
See  Trust  and  Trustee. 

Hon-oomplianoe  with  Order  for  Discovery — 
Incapacity  arising  after  Writ— Hext  Friend.] — 
Where,  after  writ  issued,  the  plaintiff  became 
incapable  of  transacting  business,  and  his 
brother,  on  his  behalf,  made  an  affidavit  of 
documents,  and  answered  interrogatories,  the 
defendant  took  out  a  summons  to  dismiss  the 
action  for  non-compliance  with  orders  to  make 
an  affidavit  of  documents,  and  to  answer  inter- 
rogatories ;  the  plaintiff  then  took  out  a  sum- 
mons for  leave  to  amend  by  adding  a  next 
friend :— Held,  that  the  defendant  was  not 
entitled,  under  rule  21  of  Ord.  XXXI.  of  the 
Rules  of  Court,  1883,  to  have  the  action  dis- 
missed. The  action  still  subsisted,  and  the 
plaintiff  must  have  leave  to  amend  by  adding 
a  next  friend ;  the  plaintiff  to  pay  the  costs  of 
both  summonses,     bar  dwell  {Lord)  v.  Tomlin- 


ton,  54  L.  J.,  Ch.  957  ;  62  L.  T.  740  ;  83  W.  B. 
814— V.-C.  B. 

Bankruptcy  Petition— Affidavit]— When  the 
petitioning  creditor  is  a  lunatic  so  found  by 
inquisition,  the  affidavit  verifying  the  petition 
may  be  sworn  by  the  committee  of  the  lunatic 
Brady,  In  re,  19  L.  R.,  Ir.  71— Bk. 

Leave   to    Committee   to   File.]— See 

James,  In  re,  ante,  col.  1160. 

Citation  —  Service  on  Person  of  unsound 
mind.] — Form  of  order  for  service  of  citation  on 
a  person  of  unsound  mind,  not  so  found  by 
inquisition.  M1  Cormick  v.  Heyden,  17  L.  R.,  Ir. 
338— Prob. 


V.    CUSTODY  OF. 

Jurisdiction  of  Justices— Personal  Examina- 
tion by  Justices  of  alleged  Lunatic.] — In  order 
to  give  two  justices  jurisdiction  to  make  an  order 
under  8.  68  of  the  Lunatic  Asylums  Act,  1853, 
for  the  reception  of  a  person  into  a  lunatic 
asylum  as  a  lunatic  who  is  not  a  pauper,  and  not 
wandering  at  large,  but  who  is  not  under  proper 
care  and  control,  it  is  not  necessary  that  they 
should  examine  such  person  in  the  presence  of 
the  medical  man  whom  they  have  called  to  their 
assistance,  nor  that  the  examination  should  be 
made  with  the  knowledge  of  the  alleged  lunatic, 
so  that  he  should  have  the  opportunity  of  ex- 
plaining, if  he  could,  what  might  otherwise  be 
signs  of  insanity.  Though  the  examination  must 
not  be  a  sham,  yet  if  it  be  made  by  the  justices 
bona  fide  for  the  purpose  of  satisfying  them- 
selves of  the  sanity  or  insanity  of  the  person 
examined  it  is  sufficient,  and  their  order  is  not 
without  jurisdiction  because  the  examination 
lasted  only  four  or  five  minutes  and  was  made 
at  the  door  of  the  carriage  in  which  the  alleged 
lunatic  was  seated  with  his  attendants  prepara- 
tory to  his  being  taken  to  the  asylum.  Bff  v. 
Whitfield,  15  Q.  B.  D.  122  ;  64  L.  J.,  M.  C. 
113  ;  63  L.  T.  96— C.  A.  Reversing  49  J.  P. 
230— D.  .  . 

Where  the  person  deemed  to  be  a  lunatic  u 
examined  by  two  justices  at  his  place  of  abode 
or  elsewhere,  the  68th  section  requires  that  one 
of  such  two  justices  must  already  have  had,  as  s 
condition  precedent  to  the  vesting  of  the  juris- 
diction of  the  justices,  either  an  information 
upon  oath,  or  private  or  personal  knowledge  of 
his  own  as  to  the  insanity  of  such  person,  /&.— 
Per  Coleridge,  C.J. 

Order  for  Reception— Alteration  of  Order- 
Order  for  Discharge.]— The  plaintiff  was  taken 
to  and  detained  in  the  defendant's  asylum  as  a 
person  of  unsound  mind  under  an  order  signed 
by  the  plaintiff's  husband,  and  containing  a 
statement  of  questions  and  answers  concerning 
the  plaintiff.  To  the  question  "Age?"  the 
answer  was  "  Fiftv."  To  the  question, "  Whether 
first  attack  ? "  the  answer  was  "  For  the  last 
twenty  years  has  been  subject  to  what  is  termed 
hysteria."  To  the  question,  "  Age  (if  known)  on 
first  attack?"  the  answer  was  "Thirty."  To 
the  question,  "When  and  where  previously  under 
care  and  treatment  ? "  the  answer  was,"  During 
this  period  of  twenty  years  has  been  constantly 


r 


1169 


MALICIOUS    PROCEDURE,  ETC. 


1170 


tinder  treatment."  A  few  days  after  the  plain- 
tiff had  been  received  into  the  asylum  the  last 
answer  was  altered  by  adding  to  it  the  words 
"  For  hysteria  "  by  several  doctors  whose  names 
were  given.  No  copy  of  the  order  as  so  altered 
was  sent  to  the  commissioners,  nor  did  they 
sanction  the  alteration.  Afterwards  the  plain- 
tiff's husband  wrote  a  letter  to  the  defendant 
begging  him  to  discharge  the  plaintiff  "  as  soon 
as  yon  may  think  it  advisable.  Notwithstand- 
ing this  letter  the  defendant  detained  the  plain- 
tiff for  a  considerable  time.  The  plaintiff  having 
brought  an  action  against  the  defendant  for 
maliciously  and  without  reasonable  or  probable 
cause  assaulting  and  imprisoning  her,  the  defen- 
dant relied  upon  8  &  9  Vict.  C.  100.  ss.  99, 105  : 
—Held,  that  the  answers  were  a  sufficient  com- 
pliance with  the  requirements  of  16  &  17  Vict, 
c.  96,  s.  4,  and  Sched.  A.  No.  1 ;  that  the  altera- 
tion not  being  of  a  material  part  of  the  order  did 
not  invalidate  the  order  ;  that  the  letter  written 
hj  the  plaintiff's  husband  to  the  defendant  was 
not  an  order  of  discharge  within  the  meaning  of 
8  Jc  9  Vict  c.  100,  s.  72  ;  and  that  there  was  no 
evidence  for  the  jury  in  support  of  the  plaintiff's 
case.  Lowe  v.  Fox,  12  App.  Cas.  206  ;  56  L.  J., 
<l  B.  480 ;  66  L.  T.  406  ;  36  W.  R.  26  ;  51  J.  P. 
468-H.  L.  (E.) 


VI.    ILL-TREATMKNT  OF. 

By  Parent — Person  *' having  the  Care  or 
Charge  "  of  Lunatic]— The  parents  of  a  lunatic, 
who  resides  with  them  under  their  care,  are  per- 
sons "having  the  care  or  charge  "  of  a  lunatic 
within  the  meaning  of  16  &  17  Vict.  c.  96,  s.  9, 
and  may  be  convicted  under  that  section  for  ill- 
treating  such  lunatic.  Beg.  v.  Bundle  (1  Dear. 
fcPearce,  482)  questioned.  Buchanan  y.  Hardy, 
18  Q.  B.  D.  486  ;  66  L.  J.,  M.  0.  42  ;  36  W.  R. 
463 ;  51  J.  P.  471— D. 


MACHINERY. 

1B1  of  iele.]— See  Bill  of  Sale. 

ring.]— &*  Landlord  and  Tenant. 


MAGISTRATE. 

See  JUSTICE  OF  THE  PEACE. 


MAINTENANCE. 

Of  Infant.]— See  Infant. 
Of  Uaatic.]— See  Lunatic. 


In   Divorce   Proceedings.  ]  —  See  Husband 
and  Wife. 

Of  Adieu*.]— See  Champeett. 
Of  Panpers.]— See  Poor  Law. 


MALICIOUS  INJURY. 

See  CRIMINAL  LAW,  II.  20,  23. 


MALICIOUS  PROCEDURE 

AND 
FALSE  IMPRISONMENT. 

Procuring  Bankruptcy— Adjudication  not  set 
aside.] — A  bankrupt  whose  adjudication  in 
bankruptcy  has  not  been  set  aside  cannot  main- 
tain an  action  for  maliciously  procuring  the 
bankruptcy,  and  such  an  action  may  be  sum- 
marily dismissed  upon  summons  as  frivolous  and 
vexatious.  Metropolitan  Bank  v.  Pooley,  10 
App.  Cas.  210  ;  54  L.  J.,  Q.  B.  449  ;  53  L.  T.  163 ; 
33  W.  R.  709  ;  49  J.  P.  756— H.  L.  (E.). 

Presenting  Petition  to  Wind  np  Company — 
Reasonable  and  Probable  Cause.J — The  defen- 
dant, who  had  been  a  shareholder  in  the  plaintiff 
company,  instructed  certain  brokers  to  sell  his 
shares,  and  signed  a  transfer.  The  brokers 
informed  him  that  they  could  not  sell  the  shares, 
but  the  transfer  was  not  returned  to  him.  Shortly 
afterwards  he  presented  a  petition  to  wind-up 
the  company  on  the  ground  of  fraud  in  its  for- 
mation, which  was  duly  advertised.  Before  serving 
the  petition  he  discovered  that  the  shares  had 
been  sold  and  the  transfer  registered,  and  at 
once  gave  notice  to  withdraw  the  petition,  which 
was  accordingly  dismissed  with  costs.  In  an 
action  by  the  company  for  maliciously  and  with- 
out reasonable  and  probable  cause  presenting  the 
petition,  the  judge  asked  the  jury  whether  the 
defendant  at  the  time  he  presented  the  petition, 
honestly  believed  that  he  was  a  shareholder  ;  but 
they  were  not  asked  whether  the  defendant  had 
taken  reasonable  care  to  inform  himself  of  the 
fact : — Held,  that  the  latter  question  should  have 
been  left,  and  that  there  must  be  a  new  trial. 
Quartz  Hill  Consolidated  Gold  Mining  Co.  v. 
Eyre,  50  L.  T.  274— D. 

Application  for  Search  Warrant — Reasonable 
Cause  for  Suspicion.]— By  48  k  49  Vict.  c.  69 
(Criminal  Law  Amendment  Act,  1885),  s.  10,  it 
is  provided  that  "  if  it  appears  to  any  justice  of 
the  peace,  on  information  made  before  him  on 
oath  by  any  parent,  relative,  or  guardian  of  any 
woman  or  girl,  or  any  other  person  who,  in  the 
opinion  of  the  justice,  is  bona  fide  acting  in  the 
interest  of  any  woman  or  girl,  that  there  is 
reasonable  cause  to  suspect  that  such  woman  or 
girl  is  unlawfully  detained  for  immoral  purposes 
by  any  person  in  any  place  within  any  juris- 
diction of  such  justice,  such  justice  may  issue  a 


1171 


MALICIOUS    PROCEDURE,  ETC. 


1172 


warrant  authorising  any  person  named  therein 
to  search  for  ...  .  such  woman  or  girl "  : — 
Held,  that  under  this  section  the  justice  has  a 
judicial  duty  to  perform,  and  that  his  decision 
that  there  is  reasonable  cause  for  such  suspicion 
is  a  protection  to  a  person  who  bona  fide  applies 
for  a  search  warrant,  and  is  an  answer  to  an 
action  for  maliciously  causing  the  warrant  to 
issue.  Hope  v.  Evered,  17  Q.  B.  D.  338  ;  55 
L.  J.,  M.  C.  146  ;  55  L.  T.  320  ;  34  W.  R.  742  ; 
16  Cox,  C.  C.  112— D. 

In  an  action  for  malicious  prosecution,  it  is  no 
evidence  of  malice  on  the  part  of  the  defendant 
that  in  applying  for  a  search  warrant  to  issue 
against  the  plaintiff,  the  defendant  asked  that  a 
warrant  at  the  same  time  might  issue  against 
another  person  for  the  same  offence.  Utting  v. 
Berney,  52  J.  P.  806— D. 

Malicious  Prosecution— newspaper  Libel  Aet 
— Conviction  no  Bar.] — The  plaintiff  was  in- 
dicted under  s.  4  of  the  Newspaper  Libel  Act, 
though  only  committed  for  trial  under  s.  5  ;  he 
therefore  brought  an  action  for  malicious  prose- 
cution : — Held,  that  the  conviction  was  no  bar 
to  an  action  for  malicious  prosecution  under  8.  4 
of  the  act.    Boaler  v.  Holder,  51  J.  P.  277— D. 


Against  Corporation  Aggregate.] — Per 


Lord  Bramwell : — An  action  for  malicious  prose- 
cution will  not  lie  against  a  corporation  aggre- 
gate. Abrath  v.  North  Eastern  Railway,  11 
App.  Cas.  247  ;  55  L.  J.,  Q.  B.  457  ;  55  L.  T.  63  ; 
50  J.  P.  659— H.  L.  (B.). 

Reasonable  and  Probable  Cause — Burden 


of  Proof.  ] — In  an  action  for  malicious  prosecution 
the  judge  directed  the  jury  that  the  burden  of 
proof  as  to  the  want  of  reasonable  and  probable 
cause  for  the  prosecution,  and  as  to  malice,  lay 
on  the  plaintiff,  and  that  it  was  for  him  to  show 
that  the  defendants  had  not  taken  reasonable 
care  to  inform  themselves  as  to  the  true  facts  of 
the  case,  and  asked  the  jury  to  find  whether  they 
bad  taken  such  reasonable  care,  and  whether 
they  honestly  believed  the  case  which  they  laid 
before  the  committing  magistrates.  The  jury 
answered  both  questions  in  the  affirmative,  and 
the  judge  entered  judgment  for  the  defendants  : 
— Held,  that  there  was  no  misdirection,  and  that 
the  judgment  was  rightly  entered.    lb. 

Seasonable  and  Probable  Cause — Evi- 


dence of  Malice.  ] — A  forged  cheque  had  been 
presented  at  the  defendants'  bank,  and  the  plain- 
tiff, because  he  was  supposed  to  be  one  C.  who 
was  suspected,  was  arrested  by  the  police  on  the 
charge  of  uttering  it,  and  was  then  positively 
identified  by  the  bank  cashier  as  the  man  to  whom 
the  money  was  paid.  In  an  action  for  malicious 
prosecution  : — Held,  that  there  was  no  evidence 
of  the  absence  of  reasonable  and  probable  cause, 
that  though,  when  the  plaintiff  set  up  an  alibi 
and  denied  that  he  was  C,  the  defendants  found 
that  evidence  would  be  forthcoming  which,  if 
true,  would  establish  these  facts,  it  was  no  evi- 
dence of  malice  on  the  part  of  the  defendants 
that  they  did  not  withdraw  from  the  prosecution 
till  the  plaintiff  had  been  thrice  remanded  ;  that 
it  not  being  the  duty  of  the  defendants  to  bring 
this  evidence,  which  they  doubted,  before  the 
magistrates,  their  not  doing  so  was  no  evidence 
of  malice.  Held  further,  that  the  question 
whether  the  plaintiff  was  in  fact  C,  or  whether 


he  was  in  fact  the  guilty  person,  was  not  a 
question  relevant  to  the  issue ;  and  it  was  no 
evidence  of  malice  on  the  part  of  the  defendants 
that  they  put  witnesses  into  the  box,  who,  as  the 
defendants  well  knew,  would  assert  their  belief 
that  the  plaintiff  was  guilty.  Harrison  v.  3ro- 
tional  Provincial  Bank,  49  J.  P.  390— D. 

False  Imprisonment — Arrest  on  8uspicionof 
Felony— Acquittal  of  Plaintiff— Misdirection.] 

— In  an  action  for  false  imprisonment  the  de- 
fendant pleaded  that  the  money  was  stolen  from 
him  by  some  person  unknown,  and  that  he  gave 
the  plaintiff  into  custody,  suspecting  him  on 
reasonable  and  probable  grounds  of  being  the 
thief,  but  did  not  plead  that  the  plaintiff  had 
committed  the  theft.  The  plaintiff  had  been 
tried  on  charge  of  stealing  the  money,  and 
was  acquitted.  At  the  trial  of  the  civil  action, 
evidence  was  given  on  both  sides  as  to  the  ques- 
tion whether  the  offence  had  been  committed 
by  the  plaintiff.  The  learned  judge  who  fried 
the  case  being  of  opinion  that  there  was  no 
evidence  of  theft  by  any  person  other  than  the 
plaintiff,  and  that  the  plaintiff's  acquittal  pre- 
cluded the  question  of  his  guilt  being  tried  in 
the  civil  action,  directed  a  verdict  for  the  plain- 
tiff notwithstanding  the  objection  of  the  de- 
fendant's counsel,  who  required  the  question 
"  whether  the  defendant's  money  had  been  felo- 
niously stolen  by  any  person  "  to  be  left  to  the 
jury  : — Held,  a  misdirection,  and  that  it  was  open 
to  the  defendant  upon  the  pleadings  to  show 
that  the  plaintiff  had  Btolen  the  money,  and 
that  he  was  not  precluded  from  doing  so  by  the 
acquittal  of  the  plaintiff  on  the  criminal  charge. 
Cahill  v.  Fitzgtbbon,  16  L.  R.,  Ir.  371— Q.  B.  D. 

Pawnbroker— Detention  of  Person  offer- 
ing Article  to  pawn  —  Reasonable  Suspicion.] 
—By  the  Pawnbrokers  Act,  1872  (35  ft  3$ 
Vict.  c.  93),  8.  34,  in  any  case  where,  on  an 
article  being  offered  in  pawn  to  a  pawnbroker 
he  reasonably  suspects  that  it  has  been  stolen 
or  otherwise  illegally  or  clandestinely  ob- 
tained, he  may  seize  and  detain  the  person 
so  offering  the  article  and  the  article,  or 
either  of  them,  and  shall  deliver  the  person  and 
the  article,  or  either  of  them  (as  the  case  maj 
be)  as  soon  as  may  be  into  the  custody  of  & 
constable.  The  plaintiff  offered  in  pawn  to  the 
defendant,  a  pawnbroker,  a  gold  horseshoe  pin, 
set  with  seven  diamonds,  and  a  ring.  The  de- 
fendant having  previously  received  from  the 
police  a  notice  of  articles  recently  stolen, 
amongst  which  was  "  a  gold  horseshoe  pin,  set 
with  seven  diamonds,"  and  a  ring,  asked  the 
plaintiff  if  he  was  a  dealer.  He  replied  that  he 
was  not.  The  defendant  also  asked  the  plaintiff 
where  he  obtained  the  articles.  The  plaintiff 
said  that  he  got  them  from  a  publican,  whose 
name  and  address  he  stated.  The  defendant 
gave  the  plaintiff  into  custody  of  a  constable. 
It  was  afterwards  proved  that  the  articles  in  the 
possession  of  the  plaintiff  had  not  been  stolen, 
and  that  his  statements  were  true.  In  an  action 
by  him  for  false  imprisonment  the  judge  left  the 
question  whether  the  defendant  had  a  reasonable 
suspicion  to  the  jury,  who  found  their  verdict 
for  the  plaintiff :— Held,  that  the  question 
arising  under  the  act  whether  the  defendant 
reasonably  suspected  that  the  pin  had  been 
stolen  or  otherwise  illegally  or  clandestinely 
obtained  was  for  the  judge ;  that,  on  the  facts, 


1178 


MANDAMUS. 


1174 


there  was  no  evidence  of  absence  of  reasonable 
suspicion  in  the  mind  of  the  defendant,  and 
therefore  judgment  should  be  entered  for  him. 
Emcard  ?.  Clarke,  20  Q.  B.  D.  558 ;  58  L.  T. 
401 ;  52  J.  P.  310— D. 


Governor  of  Prison — Protection  of  War- 
rut] — The  governor  of  a  prison  is  protected  in 
obeying  a  warrant  of  commitment  valid  on  the 
face  of  it,  and  an  action  for  false  imprisonment 
will  not  lie  against  him  for  the  detention  of  a 
prisoner  in  pursuance  of  the  terms  of  such  war- 
rut.  The  plaintiff  having  been  convicted  by  a 
court  of  summary  jurisdiction  and  sentenced  to 
seven  days'  imprisonment,  a  warrant  of  commit- 
ment was  issued  directing  that  the  plaintiff  should 
be  imprisoned  in  a  certain  gaol  for  seven  days. 
The  plaintiff  was  arrested  on  August  24,  and 
lodged  in  prison  on  August  25.  The  governor  of 
the  gaol  kept  the  plaintiff  in  prison  until  and  dur- 
ing August  31 : — Held,  that  whether  or  not  the 
plaintiff's  sentence  ran  from  August  24  or  August 
25,  the  governor  was  protected  by  the  warrant, 
and  was  not  liable  to  an  action  for  false  im- 
prisonment in  respect  of  the  plaintiff's  detention 
on  August  31.  Henderson  v.  Preston,  21  Q.  B. 
D.  362 ;  57  L.  J.,  Q.  B.  607  ;  86  W.  R.  834  ; 
52  J.  P.  820— C.  A.    Affirming  59  L.  T.  334— D. 


Liability  of  Company  for  Acts  of  Servants 
of  Employment] — Section  52  of  the 
Tramways  Act,  1870,  which  enacts  that  "it 
shall  be  lawful  for  any  officer  or  servant  of  the 
promoters  or  lessees  of  any  tramway  "  to  detain 
any  person  defrauding  the  company  of  his  fare, 
must  be  construed  as  limited  to  any  officer  or 
servant  appointed  for  that  purpose.  A  tramway 
company  gave  to  their  conductors  printed  in- 
structions, in  which  it  was  ordered  that,  except 
in  cases  of  assault,  conductors  were  not  to  give 
passengers  into  custody  without  the  authority  of 
an  inspector  or  timekeeper.  The  conductor  of  a 
car,  in  which  the  plaintiff  was  a  passenger,  de- 
tained the  plaintiff,  and  gave  her  into  custody 
on  a  charge  of  passing  bad  money  : — Held,  in  an 
action  for  false  imprisonment  against  the  com- 
pany, that  the  defendants  were  not  liable. 
Charleston  v.  London  Tramways  Company,  36 
W.  R.  367— D.    Affirmed  32  S.  J.  567— C.  A. 

A  passenger  on  a  tramway  tendered  a  half 
•overeign  to  conductor  of  the  car  in  payment  of 
the  fare.  The  conductor,  supposing  the  coin  to 
be  counterfeit,  gave  the  passenger  in  charge  to 
the  police.  Ss.  51  and  52  of  the  Tramways  Act, 
1870,  empower  officers  or  servants  of  the  pro- 
moters or  lessees  of  any  tramway,  to  seize  and 
detain  any  person  seeking  to  avoid  payment  of 
his  fare  : — Held,  that  the  tramway  company  were 
liable  in  an  action  against  them  by  the  passenger 
for  false  imprisonment.  Furlong  v.  South 
London  Tramways  Company,  48  J  .P.  329  ;  1  C. 
*  E.  316— Stephen,  J. 


MALTA. 

See  COLONY. 


MANDAMUS. 

1.  In  Particular  Cases. 

2.  To  Justices  of  the  Peace. 

3.  Practice. 


1.  In  Pabticulab  Cases. 

To  Central  Criminal  Court.] — Mandamus  does 
not  lie  to  the  judges  and  justices  of  the  Central 
Criminal  Court,  which  is  a  superior  court.  Reg. 
v.  Central  Criminal  Court  JJ.,  1 1  Q.  B.  D.  479  \. 
52  L.  J.,  M.  C.  121 ;  15  Cox,  C.  C.  324— D. 

Commissioners  of  Inland  Ee venue.] — Sect.  25 
of  5  &  6  Vict.  c.  79,  provides  for  the  return  by 
the  Commissioners  or  Stamps  and  Taxes  of  pro- 
bate duty  on  proof  by  oath  and  proper  vouchers 
to  their  satisfaction  of  the  payment  of  debts  of 
the  deceased,  whereby  the  amount  of  probate 
duty  payable  on  the  estate  is  reduced  below  the 
amount  which  has  been  paid.  By  a  subsequent 
act  the  Commissioners  of  Inland  Revenue  are 
substituted  for  the  Commissioners  of  Stamps  and 
Taxes.  On  an  application  by  an  administrator 
for  a  mandamus  to  the  commissioners  to  pay  to 
the  applicant  the  amount  of  duty  overpaid  by 
him,  on  the  ground  that  he  had  supplied  evidence 
of  overpayment  and  had  no  other  legal  remedy  : 
— Held,  that  the  mandamus  ought  not  to  issue, 
for  the  statute  created  no  duty  between  the 
commissioners  and  the  applicant,  whose  remedy, 
if  the  decision  of  the  commissioners  could  be 
reviewed,  was  by  petition  of  right.  Rex  v.  Com- 
missioners of  tlie  Treasury  (4  A.  &  E.  286)  dis- 
approved of.  Nathan,  In  re,  or  Reg.  v.  Inland 
Revenue  Commissioners,  12  Q.  B.  D.  461  ;  53 
L.  J.,  Q.  B.  229  ;  51  L.  T.  46  ;  32  W.  R.  543  ;  4S 
J.  P.  452— C.  A. 

Income  Tax  Commissioners.] — Mandamus  lie* 
to  compel  the  Commissioners  for  special  purposes- 
of  Income  Tax  to  issue  orders  for  repayment  of 
amounts  certified  by  them  to  be  overpaid.  Reg. 
v.  Income  Tax  Commissioners,  21  Q.  B.  D.  313  ; 
57  L.  J.,  Q.  B.  513  ;  59  L.  T.  455  ;  36  W.  R.  776 
— C.A. 

Registrar   of  Joint -Stock   Companies.]  —  A 

writ  of  mandamus  will  lie  against  the  Registrar 
of  Joint-Stock  Companies,  though  an  official  of 
the  Board  of  Trade,  which  is  a  Committee  of  the 
Privy  Council,  if  he  refuse  to  perform  a  mere 
ministerial  act  which  he  is  under  a  statutory 
obligation  to  perform.  Reg.  v.  Registrar  of 
Joint-Stock  Companies,  21  Q.  B.  D.  131 ;  57 
L.  J.,  Q.  B.  433  ;  59  L.  T.  67  ;  36  W.  R.  695  ;  52 
J.  P.  710— Per  Wills,  J. 

To  Company  to  Register  Shareholder.] — A 

prerogative  writ  of  mandamus  will  not  lie  to 
compel  a  company  to  register  as  a  holder  of 
shares  therein,  a  person  to  whom  they  have 
issued  certificates  in  respect  of  such  shares 
where  the  company  have  issued  prior  certi- 
ficates in  respect  of  such  shares  to  someone  else, 
without  clear  proof  that  the  person  to  whom  the 
last  certificates  were  issued  had  a  better  title 
than  the  person  to  whom  the  earlier  ones  were 
issued,  even  though  the    person    holding   the 


1175 


MANDAMUS. 


1176 


earlier  certificates  has  not  been  entered  in  the 
company's  register  as  the  holder  of  such  shares. 
Reg.  v.  Charnwood  Forest  Railway,  1  C.  &  E. 
419— Denman,  J.    Affirmed  in  C.  A* 


2.  To  Justices  of  the  Peace. 

Serosal  to  hear  Case— Rule  to  show  Cause.]— 
By  the  5th  section  of  11  &  12  Vict.  c.  44, 
it  is  enacted  that,  "  whereas  it  would  conduce 
to  the  advancement  of  justice,  and  render  more 
effective  and  certain  the  performance  of  the 
duties  of  justices,  and  give  them  protection  in 
the  performance  of  the  same,  if  some  simple 
means,  not  attended  with  much  expense,  were 
devised  by  which  the  legality  of  any  act  to  be 
done  by  such  justices  might  be  considered  and 
adjudged  by  a  court  of  competent  jurisdiction, 
and  such  justices  enabled  and  directed  to  perform 
it  without  risk  of  any  action  or  other  proceeding 
being  brought  or  had  against  them  ;  therefore  in 
all  cases  where  a  justice  or  justices  of  the  peace 
shall  ref  use  to  do  any  act  relating  to  the  duties 
of  his  or  their  office  as  such  justice  or  justices,  it 
shall  be  lawful  for  the  party  requiring  such  act 
to  be  done  to  apply  to  her  Majesty's  Court  of 
Queens  Bench,  upon  an  affidavit  of  the  facts,  for 
a  rule  calling  upon  such  justice  or  justices,  and 
also  the  party  to  be  affected  by  such  act,  to  show 
cause  why  such  act  should  not  be  done."  An 
information  having  been  laid  against  P.  under 
the  51st  section  of  the  Highway  Act,  1864  (27 
A  28  Vict.  c.  101),  for  encroaching  on  a  highway, 
the  justices  decided  on  evidence  given  that  a 
claim  of  right  set  up  by  P.  to  the  land  alleged 
to  have  been  encroached  upon  by  him  was  bona 
fide,  and  thereupon  refused  to  hear  the  case  on 
the  ground  of  want  of  jurisdiction.  The  com- 
plainant having  applied  under  the  5th  section  of 
11  &  12  Vict  c.  44,  for  a  rule  for  the  justices  to 
show  cause  why  they  should  not  hear  and  deter- 
mine the  case  : — Held,  that  the  application  was 
properly  made,  the  statute  not  being  limited  to 
cases  in  which  the  justices  need  protection  in 
the  performance  of  their  duties.  Reg  v.  Philli- 
more,  or  Pilling,  14  Q.  B.  D.  474,  n.  ;  51  L.  T. 
205  ;  32  W.  R.  593  ;  48  J.  P.  774— D. 

Bids  or  Mandamus.] — A  rule  under  s.  5 
of  Jervis's  Act,  and  a  rule  for  a  mandamus, 
calling  upon  justices  to  show  cause  why  they 
should  not  proceed  to  hear  and  determine  the 
matter  of  an  application  for  a  summons  are 
concurrent  remedies.  A  rule  under  the  5th 
section  of  Jervis's  Act  is  not  confined  to  cases 
where  the  justices  need  protection  in  doing  any 
act  relating  to  their  duties.  Reg.  v.  Riron,  14 
Q.  B.  D.  474  ;  54  L.  J.,  M.  C.  77  ;  51  L.  T.  429  ; 
49  J.  P.  68— D. 

To  State  Case — Question  of  Fact.]— In  pro- 
ceedings taken  by  the  Fulham  Board  of  Works 
for  the  paving  of  a  lane  as  a  u  new  street,"  within 
the  meaning  of  the  Metropolis  Management  Acts, 
the  magistrate  held  that  the  lane  was  not  a 
"  street "  within  the  meaning  of  the  acts,  and 
refused  to  state  a  case  under  20  &  21  Vict.  c.  43, 
as  he  considered  the  question  one  of  fact : — Held 
(discharging  a  rule  for  a  mandamus  to  compel 
the  magistrate  to  state  a  case),  that  the  question 
whether  the  lane  was  a  "  street "  or  not  was  a 
question  of  fact  and  not  of  law,  and  that  the 


magistrate  could  not  be  compelled  to  state  i 
case.    Reg.  v.  Shell,  50  L.  T.  590  ;  49  J.  P.  68-D. 

Refusal  to  issue  Summons.] — Where  a  magis- 
trate has  refused  a  summons  on  the  ground  that 
the  information  does  not  disclose  an  indictable 
offence,  the  High  Court  of  Justice  has  no  juris- 
diction to  review  his  decision,  cither  as  to  law  or 
as  to  fact,  and  therefore  in  such  a  case  a  rule, 
under  11  &  12  Vict.  c.  44,  s.  5,  calling  upon  the 
magistrate  to  show  cause  why  he  should  not  hear 
and  determine  the  application  for  a  summons, 
will  not  be  granted.  Lewis,  Ex  parte,  21 
Q.  B.  D.  192  ;  57  L.  J.,  M.  C.  108  ;  59  L.  T. 
338  ;  37  W.  R.  13  :  52  J.  P.  773— D. 

Where  justices  entertain  an  application  for  a 
summons  for  a  criminal  offence,  and  have  con* 
sidered  the  materials  on  which  the  application 
is  based,  and  refused  to  hear  more,  or  to  grant 
the  summons,  the  High  Court  will  not  interfere 
by  mandamus  to  order  them  to  hear  it  again. 
MacMahon,  Ex  parte,  48  J.  P.  70— D. 


Discretion — Vexations  Indictments  Act] 


— A  mandamus  will  not  be  granted  to  interfere 
with  the  discretion  of  a  magistrate  who  has 
refused  to  issue  a  summons  for  perjury  on  an 
information  setting  forth  facts  upon  which  no 
jury  could  convict.  The  provisions  of  s.  2  of 
the  Vexatious  Indictments  Act  (22  &  23  Vict 
c.  17,  s.  2),  requiring  a  magistrate  to  bind  over 
the  prosecutor  to  prosecute,  only  apply  where  a 
charge  or  complaint  has  been  made,  and  the 
person  charged  has  been  before  the  magistrate. 
Reid,  Ex  parte,  49  J.  P.  600— D. 

Serosal  to  take  Recognisance  under  Vexations 
Indictments  AotJ— If  a  justice  hear  an  applies* 
tion  under  the  vexatious  Indictments  Act,  and 
dismiss  it  for  want  of  evidence,  this  is  equivalent 
to  a  refusal  to  commit  the  defendant,  and  a 
mandamus  will  be  directed.  Reg.  v.  London 
(Mayor),  54  L.  T.  646  ;  50  J.  P.  711  ;  16  Cox, 
C.  C.  77— D. 

After  Adjudication— Rejection  of  Admiasiblt 
Evidence.] — The  court  will  not  direct  a  man- 
damus to  issue  to  compel  justices  to  hear  and 
determine  a  case  upon  which  after  hearing 
evidence  they  have  adjudicated,  though  at  the 
hearing  they  had  rejected  certain  evidence 
which  was  properly  admissible.  Reg.  v.  York- 
shire JJ.,  GUI,  Ex  parte,  53  L.  T.  728;  34 
W.  R.  108— D. 

Refusal  to  issue  Warrants  for  Recovery  of 
Rates.] — Where  an  application  for  a  distress 
warrant  for  non-payment  of  rates  is  refused  by 
the  magistrate  on  the  ground  that  an  appeal  is 
pending  from  the  assessment  : — Held,  that  the 
application  for  a  mandamus  was  properly  made 
under  11  &  12  Vict.  c.  44,  s.  5,  the  issue  of  the 
warrant  being  a  merely  ministerial  and  not  a 
judicial  act.  Reg.  v.  Marsham,  50  L.  T.  142 ; 
32  W.  R.  157 ;  48  J.  P.  308— C.  A.  See  also 
Health,  IV.— Poor  Law  (Rates). 


3.  Practice. 

Application  in  Person.] — A  rale  under  s.  5 
of  Jervis's  Act  may  be  moved  by  an  applicant  in 
person.    Reg.  v.  Riron,  supra. 

A  prerogative  writ  of  mandamus  can  only  be 


1177 


MARKET. 


1178 


moved  by  counsel.     Reg.  v.  Eardley,  49  J.  P. 
561— D. 

Quaere,  whether  a  rale  in  the  nature  of  a 
mandamus,  under  11  &  12  Vict.  c.  44,  s.  5,  can 
be  moved  for  in  person.    lb. 

latum  of  Unconditional  Compliance.]— The 
practice  which  allowed  a  plea  to  a  return  of  un- 
conditional compliance  to  a  writ  of  mandamus 
is  in  no  way  affected  by  the  provisions  contained 
in  Ord.  LI  1 1,  r.  9  of  the  Rales  of  the  Supreme 
Conrt,  1883.  Reg.  v.  Staffordshire  JJ,  or 
PirehUl  North  JJ.,  14  Q.  B.  D.  13 ;  54  L.  J., 
M.  C.  17 ;  51  L.  T.  534  ;  33  W.  R.  205  ;  49  J.  P. 
So— C.  A. 

latum  of  Obedience.] — Upon  a  mandamus  to 
justices  to  hear  and  determine  an  application 
for  a  certificate  to  Bell  wine  to  be  consumed  on 
the  premises,  they  made  a  return  of  uncondi- 
tional compliance  with  the  writ.  Plea,  that  the 
JQstices  were  only  entitled  to  refuse  the  applica- 
tion upon  one  or  more  of  the  four  grounds 
specified  in  s.  8  of  the  Wine  and  Beerhouse  Act, 
1869,  but  that  they  refused  the  application  on 
other  grounds  contrary  to  the  statute: — Held, 
that  the  plea  was  good,  as  it  must  be  taken  to 
mean  that  in  refusing  the  application  the  jus- 
tices had  assumed  to  exercise  a  jurisdiction 
which  they  did  not  possess,  and  that  they  had 
therefore  not  substantially  heard  and  determined 
the  matter  submitted  to  them.  Reg.  v.  King, 
»  Q.  B.  D.  430  ;  57  L.  J.,  M.  C.  20  ;  58  L.  T.  607 ; 
36  W.  R  600  ;  52  J.  P.  164— C.  A. 

Alternative  Bemedy— Remedy  equally  Con- 
joint and  Effectual.]— The  remedy  of  a  writ 
of  mandamas  will  not  be  granted  where  there  is 
another  remedy,  equally  convenient  and  effectual, 
open  to  the  applicant  at  the  time  when  it  be- 
comes necessary  to  resort  to  one  or  other  of  such 
remedies.  Reg.  v.  Registrar  of  Joint  Stock 
Companies,  21  Q.  B.  D.  131 ;  57  L.  J.,  Q.  B.  433 ; 
59  L.  T.  67 ;  3C  W.  R.  695  ;  52  J.  P.  710— D. 

Pet*  for  Entering  Rule.]— Schedule  52  of  the 
Older  as  to  Supreme  Court  Fees,  1884,  which 
provides  for  the  payment  of  a  fee  of  21.  on  enter- 
ing or  setting  down  "  a  cause  or  matter  for  trial 
or  hearing  in  any  court  in  London  or  Middlesex 
or  at  any  assizes,*1  is  not  confined  to  cases  where 
the  matter  for  hearing  arises  in  an  action.  Such 
fee  is  therefore  payable  to  the  crown  office  on 
entering  a  rule  nisi  against  a  police  magistrate 
ordering  him  to  hear  an  application  for  a  sum- 
mons. Bather,  Ex  parte,  14  Q.  B.  D.  82 ;  54 
LJ.,M.  C.  94— D. 

tile  Absolute — Cost! — Hot  to  bo  drawn  up 
without  Leave.] — Licensing  justices  agreed  to 
grant  a  provisional  licence  for  a  railway  refresh- 
ment room,  according  to  plans  shown,  though 
they  directed  a  change  of  site,  which  the  appli- 
cant agreed  to.  There  never  was  any  further 
assent  of  justices  to  the  alteration.  At  the 
Application  for  the  final  order  the  eight  justices 
were  equally  divided.  No  adjournment  was 
granted  or  asked  for.  A  rule  nisi  for  a  mandamus 
being  granted,  the  justices  thereafter  met  again 
and  agreed  by  a  majority  to  make  the  final 
order: — Held,  that  the  rule  for  a  mandamus 
night  be  made  absolute,  but  without  costs,  and 


was  not  to  be  drawn  up  till  further  application. 
Reg.  v.  Cox,  48  J.  P.  441— D. 

Return  to  Mandamus— Evidence  of  Pretended 
Rehearing.] — Licensing  justices  were  ordered 
by  mandamus  to  hear  an  application  to  renew  a 
beer-house  licence  and  made  a  return  that  they 
duly  heard  and  determined  it.  The  prosecutor 
pleaded  to  the  return  by  traversing  the  return, 
and  after  issue,  a  jury  found  that  it  was  a  mere 
pretended  rehearing,  and  gave  a  verdict  for  the 
prosecutor.  The  justices  had  decided  the  case 
on  the  question  whether  the  applicant  was  the 
real  resident  occupier,  and  the  ]ury  acted  chiefly 
on  evidence  that  one  of  the  justices  was  over- 
heard to  say  he  would  hear  but  would  decide 
against  the  applicant :— Held,  that  there  was  no 
evidence  to  justify  the  finding  of  the  jury  that 
the  justices  did  not  hear  and  decide  the  case, 
and  verdict  set  aside  accordingly,  and  judgment 
entered  for  the  justices.  Reg.  v.  Pirehill  JJ., 
49  J.  P.  453— D. 


MANOR. 


See  COMMONS. 


MANSLAUGHTER. 

See  CRIMINAL  LAW. 


MARINE    INSURANCE. 

See  INSURANCE. 


MARINER. 

See  SHIPPING. 


MARKET. 

Right  of  Crown  to  grant.] — The  Crown  has  a 
right  to  grant  a  market  franchise  to  one  person 
over  the  land  of  another,  though  it  cannot  be 
exercised  against  the  will  of  the  person  to  whom 
the  land  belongs.  Attorney- General  v.  Horner, 
14  Q.  B.  D.  245  ;  54  L.  J.,  Q.  B.  227  ;  33  W.  R. 
93  ;  49  J.  P.  326— C.  A.    Affirmed  infra. 

There  is  no  public  right  of  holding  fairs  or 
markets.  The  right  to  set  up  a  market  or  fair 
is  a  prerogative  right,  which  can  only  be  granted 
by  the  Crown  after  a  preliminary  inquiry  under 
a  writ  of  ad  quod  damnum.  Bownthire 
(Marqvte)  v.  O'Brien,  19  L.  R.,  Ir.  380— V.  C. 


1179 


MARKET. 


1180 


Limits  of— "In  or  Hear."] — A  grant  of  a 
right  to  hold  a  market  "in  or  near" a  certain 
place  is  not  a  grant  by  metes  and  bounds. 
Attorney-  General  v.  Horner,  in  C.  A.,  supra — 
Per  Lord  Esher,  M.R. 

Such  a  market  may  extend  as  far  as  reason- 
able convenience  from  time  to  time  requires,  if 
the  market  overflows  honestly.    lb. 

Quaere,  how  far  a  grant  "  in  or  near  "  a  place 
-can  lawfully  extend.    lb.  in  H.  L.  infra. 


Dedication  of  Street  subject  to  Market 


Bights.]— By  letters  patent  in  34  Charles  2,  the 
king  granted  market  rights  "  in  sive  juxta "  a 
•certain  place  called  "  Spittle  Square "  to  one 
who  was  lessee  of  the  square,  and  had  acquired 
the  greater  part  of  the  reversionary  interest  in  it. 
The  grantee  or  his  successors  in  title  laid  out  the 
square  as  a  market-place  with  four  internal 
streets.  The  land  immediately  surrounding  the 
square  was  afterwards  laid  out  in  four  external 
streets,  but  it  did  not  appear  to  whom  the  pro- 
perty in  this  surrounding  land  at  any  time  be- 
longed. There  was  evidence  of  a  usage  from  the 
time  of  living  memory  to  grant  licences  and  take 
tolls  for  the  sale  of  marketable  articles  over 
parts  of  the  external  streets  as  well  as  over  the 
market-place  and  the  internal  streets : — Held, 
that  under  the  grant  "  in  sive  juxta  "  the  market 
rights  extended  into  the  four  external  streets  as 
well  as  over  the  market-place  and  the  four 
internal  streets ;  and  that  the  inference  from 
the  documents  and  evidence  was  that  the  streets 
were  dedicated  to  the  public  subject  to  the  exer- 
cise of  the  market  rights.  Attorney- General 
v.  Horner,  11  App.  Cas.  66  ;  55  L.  J.,  Q.  B.  193  ; 
64  L.  T.  281 ;  34  W.  R.  641 ;  60  J.  P.  564— 
H.  L.  (E.). 


"In  or  at."] — Under  a  grant  of  the 


right  of  holding  markets  and  fain  "  in  or  at "  a 
town,  the  limits  of  the  franchise  include  all  the 
town,  and  the  grantee  has  the  right,  in  the 
absence  of  anything  in  the  grant  to  the  contrary, 
to  appoint  the  place  in  which  the  market  is  to 
be  held.  Downshire  (Marquis)  v.  O'llrien,  19 
L.  R.,  Ir.  380— V.-C. 


41 


Town  "  —  Application  to  extended 
Town.] — By  s.  42  of  the  Rochdale  Market  Act 
of  1822,  it  is  an  offence  punishable  on  summary 
•conviction  with  a  fine  not  exceeding  51.  for  any 
person  to  sell  within  "  the  town  of  Rochdale," 
other  than  within  the  limits  of  the  market- 
place there  (except  in  the  vendor's  private 
dwelling  -  house  or  the  shop)  any  .  .  .  . 
vegetables  or  other  marketable  commodities  or 
provisions,  &c.  The  respondent  sold  a  quantity 
of  potatoes  in  a  street  or  place  within  the  present 
municipal  and  parliamentary  borough  of  Roch- 
dale, about  a  mile  from  and  not  within  the  said 
market-place.  The  limits  of  the  town  are  not 
defined  in  the  act  of  1822,  nor  has  any  subse- 
quent act  defined  the  meaning  of  the  expression 
"  town  of  Rochdale  "  as  used  in  that  act ;  but 
since  1822  the  town  has  increased,  and  is  now, 
and  for  many  years  has  been,  a  municipal  and 

Earliamentary  borough,  the  boundaries  of  which 
ave  been  extended  and  defined  by  Royal 
Charter  and  various  acts  of  Parliament,  and  the 
borough  as  now  existing  was  constituted  by  the 
Rochdale  Improvement  Act,  1872,  by  8.  8  of 
which  act  the  boundaries  of  the  town  and 
borough  were  extended  and  made  co-extensive 


with  those  of   the   parliamentary  borough  as 
specified  in  the  Boundary  Act,  1868,  and  the 
provisions  of  the  Act  of  1872,  and  of  various 
other  acts  specified  in  s.  8,  and  "of  all  other 
acts  at  present  applying  to  and  in  force  in  and 
in  relation  to  the  existing  town  and  borough," 
were  to  "  apply  to  and  be  in  force  in  and 
in  relation   to    the    borough."    The  street  or 
place  where  the  sale  took  place  is  an  aggregation 
of  about  a  dozen  houses,  and  is  within  the  aid 
extended  boundaries ;  but  prior  to  1822  it  was 
outside  the  then  municipal  borough,  and  though 
there  are  one  or  more  detached  houses  here  and 
there  along  the  road  leading  from  the  market- 
place to  the  spot  in  question,  there  is  no  con- 
tinuous line  of  buildings  on  any  part  of  the  said 
road.    The  justices  were  of  opinion  that  the  pro- 
hibition in  8.  42  of  the  act  of  1822  was  limited 
to  the  town  as  it  existed  in  1822,  and  that  the 
spot  in  question  was  not  within  '•  the  town  of 
Rochdale  "  within   the    meaning  of  the  Act, 
and   that   the   extension   of   the  borongh  for 
municipal  purposes  idid  not  give  a  wider  mean- 
ing to  the  expression  "town  of  Rochdale"  so 
as  to  extend    the   market   rights   to  the  ex- 
tended borough  ;   and  that    the  Improvement 
Act,  1872,  did  not  extend  the  provisions  of  any 
local  acts  to  the  extended  borough,  but  only 
applied  all  municipal  and  general  acts  relating 
to  sanitary  and  local  government  matters  in  the 
old  borough  to  the  extended  borough  ;  and  they 
accordingly  declined  to  convict  the  respondent 
of  an  offence  within  that  section :— Held,  on 
appeal  therefrom,  that  the  justices  were  wrong 
in  not  convicting  the  respondent,  inasmuch  as 
the  Act  of    1822  must  have    contemplated  a 
growing  town,  and  the  expression  "  town  of 
Rochdale  "  in  s.  42  was  intended  to  include  not 
merely  the  then  existing  but   the  increasing 
town  of  coming  years ;  and  that,  under  the  Act 
of  1872,  the  provisions  of  the  Act  of  1822  apply  to 
and  are  in  force  within  the  extended  boundaries 
so  as  to  make  the  "  town  of  Rochdale "  men- 
tioned in  the  earlier  Act  comprise,  for  all  the 
purposes  of  that  Act,  the  whole  of  the  municipal 
borough  as  constituted  bv  the  later  Act  of  1872. 
Killmister  v.  FUton,  53  L.  T.  959— D. 

On  what  Days.]— Where  by  the  term  of  » 
grant  a  market  is  to  be  held  on  specified  days, 
no  length  of  user  will  entitle  the  grantee  to 
hold  markets  on  other  days.  Attorney-  General 
v.  Horner,  in  C.  A.,  supra. 

Disturbance  —  Alleged  Failure  on  part  of 
Owners  to  provide  adequate  Accommodation.]— 

Failure  on  the  part  of  the  lord  of  a  market  to 
afford  sufficient  accommodation  for  the  public  is 
not  a  defence  to  an  action  for  disturbance  by 
the  setting  up  of  a  rival  place  of  sale,  although 
it  is  a  defence  to  an  action  against  a  dealer  who 
cannot  find  room  in  the  market.  In  order  to 
make  a  defendant  liable  to  an  action  for  dis- 
turbance of  a  market,  it  is  not  necessary  to  prove 
that  he  acted  with  the  intention  of  defrauding 
the  plaintiffs  of  their  tolls  by  taking  advantage 
of  the  concourse  at  their  market.  Great  Batter* 
Railway  v.  Goldsmid,  9  App.  Cas.  927;  54  L.  J-, 
Ch.  162  ;  52  L.  T.  270  ;  33  W.  R.  81 ;  49  J.  P. 
260— H.  L.  (E.). 

A  charter  was  granted  by  Edw.  3,  with  the 
advice  of  his  Parliament,  to  the  city  of  London, 
conferring  certain  privileges  on  the  citizens,  and 
granting  that  no  market  should  be  held  within 


1181 


MARKET. 


1182 


terra  miles  of  the  city.    A  charter  was  granted 
by  Gar.  2,  in  1662,  to  the  plaintiff's  predecessors 
in  title,  giving  them  the  right  to  hold  a  market 
"in  or  next  to  S.  Square,"  which  was  within 
seven  miles  of  the  city.    User  of  the  market  was 
proved  from  1723.    The  plaintiffs  built  houses 
at  &  Square,  and  let  many  of  them  for  purposes 
unconnected  with  the  market,  and  there  was 
evidence  that  the  market  was  very  crowded,  that 
it  was  difficult  for  dealers  to  get  stalls  there,  and 
that  substantially  the  whole  market  area  was 
let  by  the  year,  month,  or  week,  leaving  no  space 
for  the  general  public.     The  defendants,  who 
were  a  railway  company,  established  a  depot  or 
row  of  shops  at  their  terminus,  which  was  within 
300  yards  of  S.  Square,  and  let  them  to  dealers 
for  the  purpose  of  selling  vegetables  brought  up 
by  their  railway  ;  the  company  also  circulated 
their  tenants1  advertisements  inviting  consign- 
ments of  produce ;  no  persons  were  allowed  to  sell 
except  the  tenants  of  the  shops.    The  plaintiffs 
brought  an  action  to  restrain  the  defendants 
from  interfering  with  their  market  rights  : — 
Held,  that  although  the  charter  of  Bdw.  3  had 
the  force  of  an  Act  of  Parliament,  the  corpora- 
tion of  London  might  waive  their  rights  as  to 
eitablishment  of  markets,  and  that  the  court 
woold  presume  that  they  consented  to  the  charter 
of  1662.    Held,  also,  that  the  depot  of  the  de- 
fendants, although   not  technically  a  market, 
was  a  disturbance  of  the  plaintiffs'  rights,  and 
made  them  liable  to  an  injunction  ;  and  that 
even  if  the  plaintiffs'  mode  of  conducting  their 
market  would  preclude  them  from  maintaining 
an  action  against  a  tenant  of  the  defendants, 
yet  it  did  not  preclude  them  from  bringing  an 
action  against  the  defendants  to  restrain  them 
from  establishing  a  rival  place  of  sale  in  the 
neighbourhood.     Islington  Market  Case  (12  M. 
*  W.  20,  n.,  3  CI.  k  F.  513),  and  Prince  v.  Lewis 
<5  B.  k  C.  363),  considered,     lb. 

Illegal  Tolls.]— Although  the  taking  of 

tolls  on  an  animal  not  sold  may  be  illegal,  unless 
such  tolls  are  demanded  as  stallage,  still  the 
levying  of  them  cannot  form  a  justification  for 
setting  up  a  rival  market.  Midleton  (Lord) 
v.  Fewer,  19  L.  R,  Ir.  1— V.  C. 

Prescribed    Limits  —  Different    days  — 

liability  of  Person*  taking  part  in  Disturbing.] 
—Where  there  is  a  franchise  right  of  holding 
tain  and  markets,  and  of  taking  tolls  in  respect 
thereof,  and  an  unauthorised  fair  or  market  is 
held  within  a  reasonable  distance  of  the  pre- 
scribed place,  and  within  the  ambit  of  the  grant, 
and  such  fair  or  market  is  held  on  the  same  day 
ss  is  prescribed  by  the  grant  for  holding  a  fair 
or  market,  there  is  an  actual  intendment  of  law 
that  there  has  been  a  disturbance.  If,  however, 
the  injury  arises  from  acts  done  outside  the  pre- 
scribed limit,  or  done  on  different  days  from 
those  specified,  a  question  of  fact  arises,  and 
proof  must  be  adduced  of  actual  disturbance  by 
the  persons  sought  to  be  made  liable,  and  of 
injury  to  the  rights  of  the  patentee.  Every 
person  who  takes  part  in  an  illegal  combination 
to  disturb  a  franchise  right  of  holding  fairs,  or 
who  knowingly  takes  advantage  of  it,  is  guilty  of 
disturbance.  Downshire  (Marquis)  v.  O'Brien, 
WUR^Ir.  380— V.-C. 

- — Injunction— Damages — Costs.]— In  an 
action  for  disturbance  of  the  plaintiff's  fairs  and 


markets,  it  appeared  that  a  combination  had 
been  formed  to  set  up  rival  fairs  within  the 
ambit  of  the  plaintiff's  grant,  and  in  such  a  way 
as  to  disturb  their  franchise  rights ;  that  the  de- 
fendants were  not  parties  to  such  combination, 
but  that  they  sold  at  one  of  the  rival  fairs  with 
a  knowledge  that  they  were  infringing  the  plain- 
tiffs rights.  The  defendants,  by  their  pleading 
and  evidence  in  the  action,  denied  the  plaintiffs 
rights  as  claimed,  and  attempted  to  justify  the 
holding  of  such  rival  fairs  and  the  conduct  of 
the  originators  of  the  combination  : — Held,  that 
they  had  contributed  to  the  disturbance  ;  that 
they  should  be  restrained  by  injunction  ;  that 
they  should  not  be  held  liable  in  damages ;  but 
that,  having  regard  to  the  case  made  by  them, 
they  should  pay  the  costs  of  the  action.  Semble, 
if  the  defendants  had  by  their  pleading  admitted 
the  plaintiff's  rights,  and  shown  that  they  were 
mere  casual  vendors,  and  that  the  part  they 
took  in  the  rival  fairs  was  due  to  inadvert- 
ence, they  would  not  have  been  condemned  in 
costs.    lb. 

Discontinuance — What  is.] — Disuser  of  the 
fair  ground,  in  consequence  of  the  illegal  holding 
of  rival  fairs,  does  not  constitute  a  discontinuance 
amounting  to  an  abandonment  of  the  patentee's 
right.    lb. 

Forfeiture  of  Grant — Waiver.]— The  prin- 
ciple laid  down  in  the  Islington  Market  Case 
(3  CI.  &  Fin.  513),  that  whilst  the  grant  of  a 
fair  or  market  remains  unrepealed,  the  default 
of  finding  proper  accommodation  for  the  public 
cannot  operate  in  point  of  law  as  a  ground  of 
granting  a  new  charter  to  another  to  hold  a 
market  within  the  common  law  distance,  applies 
equally  to  other  breaches  of  duty  involving  for- 
feiture of  grant,  such  as  holding  a  fair  or  market 
on  days  other  than  those  appointed  by  the 
charter.  The  Crown  only  can  take  advantage  of 
such  a  forfeiture.  A  forfeiture  may  be  waived 
by  the  Crown  as  well  as  by  private  individuals, 
and  such  waiver  may  be  proved  by  similar  evi- 
dence, e.g.,  by  the  continued  acceptance  of  the 
Crown  rent.  Midleton  (lard)  v.  Power,  19  L. 
R,  Ir.  1— V.-C. 

Waiver  of  Statutory  Bights.]— A  statute,  or 
charter  having  the  force  of  a  statute,  may  be 
waived  by  the  party  for  whose  benefit  it  was 
enacted,  so  as  to  render  the  acts  of  persons 
disregarding  it  legal.  Great  Eastern  Railway 
v.  Ooldsmid,  supra. 

Power  to  let  Covered  Portion  of  Market  for 
other  Purposes.]— By  37  &  38  Vict.  c.  lxxxv.,  s. 
8,  the  corporation  of  Edinburgh  (who  were 
grantees  of  a  market  in  Edinburgh)  "  may  cover 
in  a  suitable  and  convenient  manner  the  fruit 
and  vegetable  market-place,  and  improve  and 
better  adapt  the  same  for  the  purposes  of  such 
market,  and  for  the  accommodation  of  parties 
using  the  same,  and  of  the  public,  &c.  Pro- 
vided always  that  the  ground  floor  only  of  such 
market-place  shall  be  used  for  such  fruit  and 
vegetable  market,  and  that  all  vacant  portions  of 
such  market-place,  whether  on  the  ground  floor 
or  above  the  same,  and  all  vacant  and  unlet 
stands,  stalls,  or  shops  in  or  on  such  market- 
place may  be  let  or  used  by  the  corporation  for 
such  purposes  and  for  such  rents  or  sales  as  to 
them  shall  seem  proper : "—  Held,  that  the  cor- 


1188 


MARKET. 


1184 


poration  were  not  entitled  to  exclude  members 
of  the  public  from  the  covered  portion  of  the 
market  during  market  hours  and  devote  the 
building  to  other  purposes.  Edinburgh  Magis- 
trates v.  Blackic,  11  App.  Cas.  665 — H.  L.  (8c.). 

Change  of  Site — Adequacy  of  Accommoda- 
tion.]— Per  Lord  Watson: — When  a  grant  of 
market  is  not  confined  to  any  particular  locality, 
the  grantee  may  from  time  to  time  change  the 
site  in  order  to  suit  his  own  convenience  ;  but  it 
is  an  implied  condition  of  the  exclusive  privilege 
that  he  shall  provide  a  market-place,  and  that 
implied  condition  is  satisfied  so  long  as  he  gives 
reasonable  accommodation  to  those  members  of 
the  public  who  use  the  market  either  as  buyers 
or  sellers,  and  the  extent  of  the  accommodation 
which  must  be  afforded  in  each  case  must  vary 
with  the  circumstances.    lb. 

The  patentees  of  fairs  are  justified  in  removing 
them  to  any  place  within  the  precinct  of  their 
grant ;  and  if  the  accommodation  provided  by 
them  is  inadequate,  or  the  change  so  injurious  as 
to  amount  to  an  abuse  of  the  franchise,  the 
remedy  of  those  injured  is  not  the  setting  up  of 
a  rival  affair.  If  such  a  change  is  productive  of 
public  injury,  the  remedy  must  be  with  the 
Crown,  who  can  proceed  by  indictment  or  scire 
facias  to  repeal  the  patent ;  if  productive  of  pri- 
vate injury,  the  party  injured  must  resort  to  his 
action.     Mi  diet  on  (Zorrf)  v.  Power,  supra. 

Tolls— In  what  Casos  payable.]  —  A  green- 
grocer, within  the  limits  of  the  T.  market,  used 
to  order  vegetables  from  B.,  a  farmer,  outside 
the  limits,  and  paid  monthly.  B.  was  charged 
with  selling  marketable  goods  without  paying 
toll : — Held,  that  B.  was  liable  to  pay  the  tolls. 
Torquay  Market  Company  v.  Bur  ridge,  48  J.  P. 
71— D. 

By  a  local  act,  15  Vict.  c.  civ.,  for  the  establish- 
ment and  regulation  of  markets  in  the  borough 
of  L.,  it  was  provided  that,  after  the  opening  of 
the  market  places,  every  person  (with  certain 
specified  exceptions)  who  should  sell  within  the 
limits  of  the  act,  other  than  in  some  one  of  the 
market  places,  private  legal  markets,  or  in  his 
own  dwelling-house,  shop,  warehouse,  yard,  or 
store,  anything  whatever  in  respect  of  which 
tolls  were  by  the  act  authorised  to  be  taken, 
should  be  subject  to  a  penalty.  Milk  was  not 
one  of  the  articles  specified  in  the  act  as  subject 
to  tolls ;  but  by  a  subsequent  amending  act,  25 
Vict.  c.  23,  the  bailiffs  and  servants  of  the  trus- 
tees of  the  markets  were  authorised  to  remove  to 
the  markets  any  articles,  and,  inter  alia,  milk, 
illegally  exposed  for  sale  in  any  street  or  public 
thoroughfare  within  the  limits  of  the  former  act, 
and  by  a  further  amending  act  (35  &  36  Vict. 
c.  96),  it  was  provided  that  it  should  be  lawful 
for  the  trustees,  if  they  should  think  fit,  to  de- 
mand and  receive  in  respect  of  certain  enumerated 
articles,  and,  inter  alia,  milk,  exposed  or  offered 
for  sale  in  any  of  the  market  places  provided  by 
the  trustees,  certain  tolls  specified  in  the  schedule 
to  the  act.  In  1882,  the  trustees  issued  a  public 
notice  that,  for  the  future,  tolls  should  be  paid 
on  all  cans,  tankards,  or  other  vessels  of  milk, 
whether  sold  from  door  to  door,  or  otherwise,  and 
whether  taken  to  the  market  or  not.  The  market 
trustees  contended  that  they  were  entitled  to  toll 
upon  milk  within  the  market  limits,  and  sum- 
moned the  appellant  for  so  selling  milk  without 
payment  of  toll,  and  the  local  bench  of  magis- 


trates imposed  upon  the  appellant  a  pecuniary 
fine,  or  in  default,  imprisonment : — Held,  on  i 
case  stated,  that,  under  the  acts  regulating  the 
markets,  the  trustees  were  not  entitled  to  levy 
toll  on  milk  not  sold  in  one  of  the  market  places, 
but  sold,  as  by  the  appellant,  at  the  dwellings  of 
customers  ;  and  that  a  person  delivering  milk  to 
customers  at  their  doors,  was  not  liable  to  a 
penalty.  Quilligan  v.  Limerick  Market  Tnuteet, 
14  L.  R.,  Ir.  265— Q.  B.  D. 

Eegulation  Bye-law  —  Distinction  between 
Wholesale  and  Retail  Trades.J— A  bye-law  for 
the  regulation  of  a  market,  setting  apart  different 
places  for  the  carrying  on  of  wholesale  and 
retail  trade,  is  not  unreasonable  as  being  in  re- 
straint of  trade.  Strike  v.  Collins.  55  L.  T.  182 ; 
34  W.  R.  459  ;  50  J.  P.  741— D. 

Selling  within  Limits  —  Potatoes  —  "  Provi- 
sions."]—The  Taunton  Market  Act  prohibited  the 
selling  within  certain  limits  of  the  market,  corn, 
grain,  fish,  meat,  poultry,  or  other  provisions,  or 
any  bulls,  sheep,  swine,  or  other  lire  cattle, 
which  are  usually  sold  in  public  markets:— 
Held,  that  a  shopkeeper  selling  potatoes  came 
within  the  statute,  these  being  "provisions," 
and  also  "  usually  sold  within  markets."  Shep- 
herd v.  Folland,  49  J.  P.  165— D. 

Power  of  District  Board  to  erect  Ports  — 
Interference  with  Market.] — A  district  board  of 
works,  under  the  statutory  powers  conferred  by 
57  Geo.  3,  c.  29,  s.  58,  and  18  *  19  Vict  c.  120, 
s.  108,  threatened  to  erect  posts  by  the  side  of 
public  footpaths  along  the  'public  roads  leading 
into  the  area  of  Spitalfields  Market,  in  order  to 
preserve  the  rights  of  the  public  and  to  insure 
the  safety  of  foot-passengers.  It  was  proved 
that  this  would  seriously  interfere  with  the 
access  to  the  market,  which  had  been  recently 
enlarged  by  throwing  into  it  the  site  of  houses 
which  had  been  pulled  down  belonging  to  the 
plaintiff : — Held,  that  such  an  exercise  of  the 
board's  powers  would  be  an  interference  with 
the  "  rights  and  privileges  vested  in  the  plaintiff 
in  reference  to  a  market "  within  the  exception 
contained  in  18  &  19  Vict,  c,  120,  s.  91,  and  an 
injunction  was  granted  restraining  the  proposed 
action  of  the  board.  Horner  v.  Whiteekapd 
Board  of  Works,  55  L.  J.,  Ch.  289 ;  53  L.  T. 
842— C.  A. 

Sale  in  Market  Overt— Liability  of  Public 
Sales-Master— Stolen  Goods.]— The  defendants 
were  public  sales-masters,  and  transacted  their 
business  in  a  legally  established  cattle  market, 
where  a  market  overt  for  the  sale  of  cattle  and 
sheep  was  held  once  a  week.  A  number  of 
sheep,  which  had  been  stolen  from  the  plaintiff, 
were  brought  on  a  market  day  to  the  stand  of 
the  defendants  by  the  thief,  who  employed  the 
defendants  to  sell  the  sheep  for  him.  The  de- 
fendants, in  ignorance  of  tlie  theft,  placed  tbe 
Bheep  in  their  stand,  and  sold  and  delivered 
them  to  a  purchaser,  by  whom  they  were  re- 
moved :— Held,  that  the  defendants  were  liable 
to  the  plaintiff  in  an  action  of  trover  for  the 
value  of  the  sheep.  Delaney  v.  Wallis,  13  L.  B., 
Ir.  31 ;  15  Cox,  C.  C.  525— C.  A. 

Contract  induced  by  Fraud— Conviction 

of  Fraudulent  Buyer— Beveating  of  ProBortyJ 
—The  owner  of  goods,  induced  by  fraud,  parted 


1186 


MASTER   AND    SERVANT. 


1186 


with  them  under  a  voluntary  contract  of  sale 
which  vested  the  property  in  the  fraudulent 
purchasers.  The  goods  were  then  sold  in  market 
orert  to  a  purchaser  without  notice  of  the  fraud. 
The  fraudulent  purchasers  were  afterwards,  upon 
the  prosecution  of  the  original  owner,  convicted 
of  obtaining  the  goods  by  false  pretences.  The 
judge  before  whom  the  prisoners  were  tried  re- 
fined to  make  an  order  of  restitution : — Held, 
that  under  24  &  25  Vict  c  96,  s.  100,  the  pro- 
perty in  the  goods  revested  in  the  original  owner 
upon  conviction,  and  that  he  was  entitled  to 
recoTer  them  from  the  innocent  purchaser. 
Moyce  v.  Newington  (4  Q.  B.  D.  32)  overruled. 
BeiULey  v.  Vilment,  12  App.  Cas.  471 ;  57  L.  J., 
Q.B  18;  67  L.  T.  854  ;  36  W.  B.  481 ;  52  J.  P. 
68-H.  L.  (B.). 


MARKET   OVERT. 

See  supra. 


MARRIAGE. 

8es  HUSBAND  AND  WIFE. 


MARTIAL  LAW. 

See  ABMT  AND  NAVY. 


MASTER. 

Skipping.]— iSfe?  Shipping. 

tcrisg.] — See  Costs— Solicitor. 

Of  High  Court]— See  Appeal— Practice. 


MASTER  AND  SERVANT. 

I.  Bights  ahd  Liabilities  of  Masteb  and 
Servant. 
1.  The  Contract  of  Hiring. 

a.  Wages  and  Remuneration,  1186. 

b.  Termination  of— Wrongful  dismis- 

sal, 1187. 
e.  Other  Bights  under  the  Contract, 
1189. 


2.  Injuries  to  Servant  in  courts  of  Bnploy- 
ment. 

a.  At  Common  Law,  1189. 

b.  Employers'  Liability  Act. 

i.  Workman— Who  is,  1190. 
ii.  Notice  of  Injury,  1191. 
iii.  Acts  of  what  Servants,  1192. 
iv.  In  respect  of  what  Plant,  Works, 

&c,  1193. 
v.  Effect  of  Contributory  Negli- 
gence, 1196. 
vi.  Hisk  voluntarily  incurred,  1197. 
viL  Practice,  1198. 

II.  Liability  of  Masteb  to  thibd  Persons, 
1198. 


1.  BIGHTS  AND  LIABILITIES  OF  MASTEB 
AND  SEBVANT. 

1.  The  Contract  of  Hiring. 
a.  Wages  and  Bemnneration. 

Payment — Deductions— Truck  Act.]— By  an 
arrangement  between  employers  and  their 
workmen,  certain  deductions  were  made  from  the 
workmen's  wages  (whic)i  were  paid  monthly)  for 
a  doctor's  fund,  which  was  established  for  the 
purpose  of  paving  doctors,  who  attended  the 
workmen  and  their  families,  and  supplied  them 
with  medicines  in  case  of  illness.  The  sums 
thus  deducted  were  handed  over  by  the  em- 
ployers to  the  doctor  from  time  to  time.  There 
was  no  contract  in  writing  between  the  employers 
and  workmen,  authorising  the  employers  to  make 
the  deductions,  nor  was  there  any  evidence  that 
the  doctor  had  accepted  the  liability  of  the  em- 
ployers. The  employers  filed  a  liquidation  peti- 
tion, and  at  this  time  there  stood  to  the  credit  of 
the  "doctors  fund,"  in  their  books,  a  sum  of 
1492.,  which  had  arisen  from  deductions  thus 
made  from  the  workmen's  wages,  and  had  not  yet 
been  paid  over  to  the  doctor : — Held,  that  there 
had  been  no  valid  payment  within  the  Truck 
Act,  of  the  1492.  to  the  workmen,  and  that  they 
were  entitled  to  be  paid  the  1492.  in  full  out  of 
the  employers'  estate  as  wages.  Cooper,  Bx 
parte,  Morris,  In  re,  26  Ch.  D.  693 ;  61  L.  T. 
374— C.  A. 

Quaere,  whether,  if  the  149Z.  had  been,  in  pur- 
suance of  the  agreement,  actually  paid  over  by 
the  employers  to  the  doctor,  in  discharge  of  a 
debt  for  which  the  workmen  were  liable,  or  if  the 
doctor  had  accepted  the  liability  of  the  employers, 
the  Truck  Act  would  have  applied  notwith- 
standing the  absence  of  a  contract  in  writing, 
signed  by  the  workmen.    lb. 


Forfeiture — Servant  Absenting  himself.] — T. 
was  employed  by  A.,  a  cotton-spinner,  at  a 
weekly  wage  of  15«.,  ending  on  Wednesdays ; 
the  rules  stated  that  a  workman  absenting 
himself  would  forfeit  his  wages.  On  Tuesday 
morning  at  6  a.m.,  T.  was  late,  and  being  refused 
entrance,  said  he  would  leave  for  the  day,  and 
went  away.  After  breakfast  he  came  again  and 
went  in  unobserved,  till,  being  noticed  by  the 
overlooker,  he  was  told  his  work  had  been  dis- 
tribed,  and  T.  went  away  again.  On  suing  for 
the  week's  wages : — Held,  that  the  county  court 
judge  was  wrong  in  finding  that  T.  had  not 

QQ 


1187 


MASTER    AND    SERVANT. 


1188 


absented  himself  on  those  facta,  and  therefore  T. 
could  not  recover  his  wages.  Tomlinson  v.  Ash- 
worth,  50  J.  P.  164— D. 

Absence  through  Illness.] — P.  was  by 

deed  apprenticed  in  1881  for  seven  years  to  W., 
and  in  the  fifth  year  W.  covenanted  to  pay  14*. 
a  week.  In  that  year  P.  had  a  tumour  in  his 
hand  and  was  in  hospital ;  he  claimed  wages 
while  so  absent  and  incapable  of  work  under  s. 
5  of  the  Employers  and  Workmen  Act,  1875  : — 
Held,  that  W.  was  liable  to  pay  the  wages 
during  the  illness  of  P.  Patten  v.  Wood,  51  J. 
P.  549— D. 


Yearly  Salary  payable  Quarterly — Dis- 


missal— Part  accrued  Due.] — Previous  to  the 
registration  of  a  company,  A.,  as  trustee  for  the 
company,  entered  into  an  agreement  with  8., 
by  which,  amongst  other  things,  it  was  agreed 
that  he  should  be  managing  director  of  the  com- 
pany when  formed,  with  a  salary  at  the  rate  of 
800*.  per  annum.    The  articles  of  association 

Srovided  that  B.  should  be  the  first  managing 
irector  of  the  company,  and  that  his  salary 
should  be  8002.  per  annum,  payable  quarterly. 
B.  afterwards  entered  into  an  agreement  with 
the  company,  by  which,  after  reciting  the  former 
agreement  with  A.,  the  company  adopted  the 
former  agreement,  and  it  was  agreed  that  it 
should  "  be  binding  on  the  company  in  the 
same  manner,  and  be  read  and  construed  in  all 
respects  as  if  the  company  had  been  in  existence 
at  the  date  thereof,  and  had  by  these  presents 
ratified  the  same"  : — Held,  that  the  salary  being 
under  the  agreement  payable  annually,  B.  was 
not  entitled  to  the  salary  for  the  quarter  which 
had  accrued  due  previous  to  his  dismissal  for 
misconduct,  as  the  article  was  an  agreement 
only  between  the  shareholders  and  the  com- 
pany, and  regulated  the  way  in  which  the 
payment  should  be  made,  and  the  way  in  whioh 
the  accounts  should  be  kept.  Boston  Deep  Sea 
Fishing  Company  v.  Ansell,  39  Ch.  D.  339 ;  59 
L.  T.  345—07  A. 

In  Mines.]— See  Minks  and  Minerals. 


b.  Termination  of— Wrongful  DiandaamL 

Length  of  Votiee— Telegraph  Clerk.]— A  sta- 
tionery clerk  in  a  telegraph  office,  at  a  salary  of 
1352.  per  annum,  is  entitled  to  a  month's  notice. 
Vxbert  v.  Eastern  Telegraph  Company,  1  0.  &  E. 
17— cor.  Stephen,  J. 

Dismissal,  Grounds  for— Receipt  of  Commis- 
sion.]— Charges  of  misconduct  having  been 
made  against  a  managing  director  of  a  company, 
he  was  dismissed,  and  an  action  was  commenced 
against  him  by  the  company,  alleging  the  mis- 
conduct, and  claiming  damages  and  certain 
accounts.  The  defendant  counter-claimed  for 
damages  for  wrongful  dismissal  At  the  trial  of 
the  action  the  company  failed  to  prove  the 
original  charges,  but  proved  that  he  had  received 
a  commission  from  a  firm  of  shipbuilders  on  the 
price  of  some  ships  built  for  the  company.  This 
was  only  discovered  after  the  commencement  of 
the  action.  It  appeared  that  he  had  super- 
intended the  building  of  the  ships,  and  given 
advice  concerning  their  construction : — Held, 
that  the  receipt  of  the  commission  entitled  the 


company  to  dismiss  him,  and  they  were  there* 
fore  not  liable  for  damages,  though  they  had  dis- 
missed him  on  other  grounds  which  they  had 
failed  to  prove,  and  the  commission  had  been 
received  some  time  before  his  dismissal,  and  was 
an  isolated  case  of  misconduct.  Boston  Deep 
Sea  Fishing  Company  v.  Ansell,  39  Ch.  D.  339 ; 
59  L.  T.  345—C.  A. 


Misconduct— Gambling  in  "  Differeneei" 


upon  8 took  Exchange.]  —The  plaintiff  had  been 
employed  as  clerk  for  many  years  by  the  defen- 
dants, who  were  merchants,  and  ultimately  they 
agreed  to  retain  him  in  their  employment  for  a 
term  of  ten  years.  Before  the  expiration  of 
that  period  the  defendants  discovered  that  the 
plaintiff  had  for  many  years  previously  been 
engaged  in  speculating  in  "  differences "  upon 
the  Stock  Exchange  to  the  extent  of  many 
hundreds  of  thousands  of  pounds,  and  they 
thereupon  dismissed  him  from  their  service  :— 
Held,  that  the  dismissal  of  the  plaintiff  wai 
justifiable.  Pearee  v.  Foster,  17  Q.  B.  D.536; 
55  L.  J.,  Q.  B.  306  ;  54  L.  T.  664  ;  34  W.  R.  602 ; 
51  J.  P.  213—C.  A. 

Discharge  when  in  Employ  of  Company  - 
Appointment  of  Manager  and  Receiver.]— The 
plaintiff  was  in  the  service  of  the  defendant 
company  under  a  contract  which  provided  that 
his  employment  might  be  determined  by  six 
months'  notice.  A  manager  and  receiver  was 
appointed  by  order  of  the  Chancery  Division  at 
the  instance  of  holders  of  debentures  of  the  com- 
pany. The  plaintiff,  by  the  instructions  of  the 
manager,  continued  for  more  than  six  months  to 
discharge  his  former  duties  at  the  same  salary. 
The  business  was  then  sold  to  a  new  company, 
and  the  plaintiff  was  dismissed  without  notice. 
In  an  action  for  wrongful  fli«mi««fti : — Held,  that 
the  appointment  of  a  manager  and  receiver 
operated  to  discharge  the  servants  of  the  company 
and  that  the  plaintiff  could  not  recover.  JW* 
v.  Explosives  Company,  19  Q.  B.  D.  264 ;  66  L 
J.,  Q.  B.  388;  57  L.T.  439  ;  35  W.R.  509-CL  A. 


Resolution  to  wind  up.] — The  passing  of 


a  resolution  to  wind  up  a  company  operates  ai 
notice  of  dismissal  to  the  company's  servant* 
Circumstances  may  exist  which  would  amount  to 
a  waiver  of  such  implied  notice,  or  which  would 
be  evidence  of  a  new  agreement  between  the 
liquidator  and  the  servant ;  but  clear  and  satis- 
factory evidence  is  necessary  to  establish  such  s 
case.  Schumann,  Ex  parte,  Fbrster  $  Co*,  /* 
re,  19  L.  B.,  Ir.  240— V.-C. 

-Order  for  Winding  up.] — The  rule  that  an 


order  for  winding  up  a  company  operates  as  a 
notice  of  discharge  to  the  servants  when  the 
business  of  the  company  is  not  continued  after 
the  date  of  the  order,  applies  though  the  liquida- 
tor without  continuing  the  business  employs  the 
servants  in  analogous  duties  with  a  view  to 
reconstruction.  Chapman's  Case  (1  L.  B.,  Bq. 
346)  followed  ;  Harding,  Ex  parte  (3L.  B.,Bq. 
841),  distinguished.  Oriental  Bank  ibrporetien, 
In  re,  MacDowalVs  Case,  32  Ch.  D.  366 ;  55  L. 
J.,  Ch.  620  ;  64  L.  T.  667 ;  34  W.  R.  529-Chitty,  J. 

Damages  for  Wrongful  Dismissal]— Only 
nominal  damages  are  recoverable  for  breach  by 
the  employer  of  a  contract  of  hiring,  if  the  person 
hired  could  have  at  once  obtained  other  employ- 


1189 


MASTER   AND    SERVANT. 


1190 


ment  of  a  precisely  similar  kind,  which  a  reason- 
able man  would  have  accepted.  Maedonnell  v. 
Marsden,  1C.&E.  281— Mathew,  J. 


o.   Other  righto  under  the  Contract. 

Servant  must  Account  to  Master  for  Bonuses 
nttived.] — The  managing  director  was  before 
the  formation  of  the  plaintiff  company  a  share- 
holder in  two  other  companies,  and  in  consequence 
of  employing  them  to  supply  ice  to  the  plaintiff 
company's  snips,  and  to  take  away  the  fish  from 
them,  he  received  from  those  companies  certain 
bonuses  paid  out  of  surplus  profits  after  payment 
of  dividends  at  a  fixed  rate.  Under  an  agreement 
with  the  company  he  was  allowed  to  engage  in 
any  other  business  or  venture  not  prejudicial  to 
the  interests  of  the  company,  and  the  articles 
provided  that  the  directors  might  enter  into 
contracts,  and  do  business  with  the  company  : — 
Held,  that  he  must  account  to  the  plaintiff 
company  for  the  bonuses,  though  the  plaintiff 
company  could  not  have  obtained  them  from  the 
other  companies.  Boston  Deep  Sea  Fishvng 
Company  v.  Ansell,  supra. 

Written  Character  defaced  by  Master.]— In 
an  action  for  maliciously  defacing  the  written 
character  of  a  servant  by  writing  upon  it  a  dis- 
paraging statement,  the  plaintiff  may  recover 
substantial  damages.  Wennhak  v.  Morgan,  20 
Q.  B.  D.  635  ;  57  L.  J.,  Q.  B.  241 ;  59  L.  T.  28  ; 
36  W.  a  697 ;  52  J.  P.  470— D. 


3.   injubie&  to   sbbvaxt  in  0oub8r  of 
Employment. 

a.    At    Common    Law. 

Unsafe  Premises— Knowledge  of  Master  and 

flemnt] — In  an  action  of  negligence  brought  by 
a  servant  against  his  master  for  personal  injury 
resulting  from  the  unsafe  state  of  the  premises 
apon  which  the  servant  was  employed,  the 
statement  of  claim  must  allege  not  only  that  the 
master  knew,  but  that  the  servant  was  ignorant 
of  the  danger.  Griffiths  v.  London  and  St,  Katha- 
rine Dock  Company,  13  Q.  8.  D.  259  ;  53  L.  J.,  Q. 
B.504;  51  L.  T.  533  ;  33  W.  R.  35  ;  49  J.  P.  100 
-C.A. 

Fellow  Servant— Hiring  Another's  Servant] 
—A  stevedore  contracted  to  load  a  ship  and  hired 
an  engine  from  P.,  who  sent  his  servant  N.  to 
work  it  M.,  a  servant  of  the  stevedore,  gave  the 
signals  to  N.,  and  by  N.'s  negligence  a  sack  fell 
and  killed  M.  The  wages  of  M.  were  paid  by 
P. :— Held,  that  N.  was  the  servant  of  P.,  and 
that  P.  was  liable  to  M.'s  representatives  for 
compensation.  Moore  v.  Palmer,  51  J.  P.  196— 
1/.  A. 

The  plaintiff,  employed  as  foreman  of  a  steve- 
dore to  unload  a  ship  with  the  assistance  of  the 
crew,  was  injured  by  the  negligence  of  one  of  the 
oew  in  the  quasi-employment  of  the  stevedore  : 
—Held,  that  the  shipowners  were  not  liable. 
Manning  v.  Adams,  32  W.  R.  430— D. 

Itsamer— Condition  of  Gear— Evidence  of  Heg- 
ngmee.] — HL,  while  in  the  employment  of  the 
defendant  company  as  a  second  mate  on  board 
4neof  their  steamers,  sustained  injuries,  resulting 


in  his  death,  from  the  Ml  of  a  derrick  while  the 

vessel  was  discharging  cargo.    At  the  time  the 

accident  occurred  the  derrick  was,  in  accordance 

with  the  usual  custom  on  the  vessel,  and  for  the 

discharge  of  the  cargo,  being  hoisted  from  the 

deck  to  its  proper  place  in  the  mast  by  a  rope 

which  worked  through  an  iron  bolt  fixed  in  a 

trestle-tree.    The  greater  part  of  the  bolt  was 

concealed  and  could  not  be  examined  without 

being  drawn  out  of  the  trestle-tree.    The  bolt 

broke  while  the  derrick  was  being  hoisted,  and  it 

fell  upon  H.    In  an  action  by  H.'s  widow,  under 

Lord  Campbell's  Act,  it  was  proved  that  the  bolt, 

to  the  extent  of  two-thirds  of  its  thickness,  was 

in  a  defective  state  and  incapable  of  bearing  a 

strain,  and  it  was  the  common  case  of  both 

parties  that  there  was  no  skilled  person  on  board 

whose  duty  it  was  to  examine  the  screws  and 

bolts.    It  was  not  shown  that  the  defendants  or 

their  officere  were  in  fact  aware  of  the  defective 

condition  of  the  bolt,  and  no  evidence  was  given 

as  to  the  usual  practice  of  inspection  of  vessels  of 

the  class,  or  for  what  time  a  bolt  of  the  kind  in 

question  would  in  the  ordinary  course  remain  in 

repair  and  adequate  to  its  work  : — Held,  that 

there  was  no  evidence  of  negligence  on  the  part 

of  the  defendant  company,  and  that  the  judge  at 

the  trial  was  right  in  directing  a  verdict  for  them, 

Hanrahan  v.  Ardnamult  Steamship  Company t 

22  L.  R.,  Ir.  55— Ex.  D. 


b.  Employers'  Liability  Act. 

i.  Workman — Whvis. 

11  Person  engaged  in  Manual  Labour "  — 
Driver  of  Tramcar.] — The  driver  of  a  tramcar 
is  not "  a  person  to  whom  the  Employers  and 
Workmen  Act,  1876,  applies,"  and  therefore  is 
not  entitled  to  the  benefit  of  the  Employers' 
Liability  Act,  1880.  Cook  v.  North  Metropolitan 
Tramways  Company,  18  Q.  B.  D.  683  ;  56  L.  J., 
Q.  B.  309  ;  56  L.  T.  448  ;  57  L.  T.  476  ;  35  W.  R. 
577  ;  61  J.  P.  630— D. 

Omnibus  Conductor.]— An  omnibus  con- 
ductor is  not  a  "  workman  "  or  person  "  engaged 
in  manual  labour  "  within  the  meaning  of  s.  10 
of  the  Employers  and  Workmen  Act,  1875,  and 
therefore  is  not  entitled  to  the  benefit  of  the 
Employers'  Liability  Act,  1880.  Morgan  v. 
London  General  Omnibus  Company,  13  Q.  B.  D. 
832  ;  53  L.  J.,  Q.  B.  352  ;  51  L.  T.  213  ;  32  W. 
R.  759  ;  48  J.  P.  603— C.  A. 

Driver  of  Cart.] — The  driver  of  a  cart  in 

the  employment  of  a  wharfinger  who,  for  the 
purposes  of  his  business,  is  the  owner  of  carts 
and  horses,  is  a  "workman"  within  the  act. 
Yarmouth  v.  France,  19  Q.  B.  D.  647  ;  67  L.  J., 
Q.  B.  7  ;  36  W.  R.  281— D. 

"  Workman."]— By  an  agreement  in  writing 
between  H.  &  Co.,  manufacturers,  and  J.,  re- 
citing that  J.  having  a  knowledge  of  mechanics, 
and  H.  &  Co.  requiring  the  services  of  a  person 
having  such  knowledge  "  to  assist  the  firm  as  a 
practical  working  mechanic  in  developing  ideas 
they  (the  firm)  might  wish  to  carry  out,  and  to 
himself  originate  and  carry  out  ideas  and  inven- 
tions suitable  to  the  business  of  such  firm,  if 
such  inventions  were  approved  by  them,"  it  was 
mutually  agreed  that  J.  should  be  employed  by 

QQ2 


1191 


MASTER   AND    SERVANT. 


1192 


the  fiim  "  for  the  purpose  above  specified  " : — 
Held,  that  J.  was  not "  a  mechanic  or  workman  " 
within  the  Employers  and  Workmen  Act,  1875. 
Jackson  v.  Hill,  13  Q.  B.  D.  618 ;  49  J.  P. 
118— D. 

J.  agreed  with  H.,  a  frilling  manufacturer,  to 
serve  for  seven  years  at  6Z.  per  week  daring  the 
ordinary  hours.  He  was  described  in  the  agree- 
ment as  having  a  knowledge  of  mechanics,  and 
to  assist  as  a  practical  working  mechanic  in 
developing  ideas.  He  in  fact  drew  designs  and 
had  workmen  to  assist  in  carrying  them  out : — 
Held,  that  J.  was  a  workman  within  the  meaning 
of  the  Employers  and  Workmen  Act,  1875. 
Jackson  v.  Hill,  48  J.  P.  7— D. 

Workman  employed  by  "butty"  Men— lia- 
bility of  Owners  of  Mine.]  —  The  defendants 
were  owners  of  a  coal  mine  worked  under  the 
"  bntty  "  system.  In  mines  so  worked  "  batty  " 
men  contract  with  the  owners  of  the  mine  to 
bring  coal  up  at  so  much  per  ton,  and  for  this 

Eurpose  employ  men  under  them.  The  deceased 
ad  been  so  employed,  and  had  been  killed  bv 
an  explosion  while  working  in  the  mine : — Held, 
that  the  deceased  had  been  a  workman  in  the 
employ  of  the  owners  of  the  mine  within  the 
meaning  St  the  Employers'  Liability  Act,  1880, 
and  that  tin.  wife  would  be  entitled  to  damages 
if  the  case  camp  within  the  terms  of  sub-s.  3  of 
s.  1  of  that  ael.  Brown  v.  Butterley  Coal 
Company,  53  L.  \.  964  ;  50  J.  P.  230— D. 


ii.  Notice  of  Injury. 

Omission  of  Date  of  Injury.]— Sect  4  of  the 

Employers'  Liability  Act,  1880,  provides  that  an 
action  to  recover  compensation  under  the  act 
shall  not  be  maintainable  unless  notice  of  injury 
is  given  as  provided  by  the  act.  By  s.  7,  the 
notice  shall  state  (inter  alia)  the  date  of  the  in- 
jury ;  and  "  a  notice  under  this  section  shall  not 
be  deemed  invalid  by  reason  of  any  defect  or 
inaccuracy  therein"  unless  the  judge  who  tries 
the  action  shall  be  of  opinion  that  the  defendant 
is  prejudiced  in  his  defence  by  such  defect  or  in- 
accuracy, and  that  it  was  for  the  purpose  of 
misleading.  A  notice  of  injury  given  under  s.  4 
omitted  to  state  the  date  of  the  injury,  and  the 
judge  at  the  trial  found  that  the  defendant  was 
not  prejudiced  in  his  defence  by  the  omission, 
and  that  it  was  not  for  the  purpose  of  mis- 
leading : — Held,  that  the  omission  of  the  date 
was  a  "defect  or  inaccuracy"  in  the  notice 
within  the  meaning  of  &  7,  and  therefore  did 
not  render  the  notice  invalid.  Carter  v.  Drys- 
dale,  12  Q.  B.  D.  91 ;  63  L.  J.,  Q.  B.  557  ;  32  W. 
R.  171— D. 

Omission  of  Address  and  Date.]— It  is  not  a 
fatal  objection  to  an  action  brought  by  a  servant 
under  the  Employers'  Liability  Act,  1880,  against 
his  employer  to  omit  the  address  and  date  in 
the  notice  required  to  be  given  to  the  employer 
under  s.  7.  Beckett  v.  Manchester  Corporation, 
62  J.  P.  346— D. 

Omission  to  state  Address  and  Cause  of  In- 
jury—Wrong  Date— ffotice  served  by  Letter 
not  Registered.] — A  notice  given  to  an  em- 
ployer under  as.  4  and  7  of  the  Employers'  Lia- 
bility Act,  1880,  omitted  to  give  the  address  of 
the  person  injured,  or  to  state  the  cause  of  the 


injury,  and  the  date  at  which  the  injury  was 
sustained  was  wrongly  given.  The  accident 
occurred  on  the  9th  August  The  letter  giving 
notice  was  served  on  the  defendants  by  post  by 
an  unregistered  letter  on  the  19th  September, 
and  to  this  letter  the  defendants  replied  on  the 
23rd  September.  The  county  court  judge,  before 
whom  the  action  was  tried,  found  that  the  de- 
fendants had  not  been  prejudiced  in  their 
defence  by  the  defects  and  inaccuracy  in  the 
notice,  and  that  such  defects  and  inaccuracy 
were  not  for  the  purpose  of  misleading.  It  was 
proved  that  the  notice  was  posted  on  the  19th 
September : — Held,  that  the  county  court  judge 
having  found  that  the  defendants  were  not  pre- 
judiced in  their  defence  by  the  said  defects  and 
inaccuracy  in  the  notice,  and  that  they  were 
not  for  the  purpose  of  misleading,  the  notice 
was  good  within  the  meaning  of  as.  4  and  7  of 
the  Employers'  Liability  Act,  1880.  Held  also, 
that  it  having  been  proved  that  the  letter  con- 
taining the  notice  was  posted  on  the  19th  Sep- 
tember, and  a  reply  to  it  having  been  received 
from  the  defendants,  there  was  sufficient  evi- 
dence that  the  notice  had  been  received  by  the 
defendants  within  the  time  specified  in  s.  4  of 
the  act,  although  the  letter  containing  the 
notice  was  not  registered.  Pretidi  v.  Oatti,  5& 
L.  T.  762  ;  36  W.  R.  670  ;  62  J.  P.  646— D. 


iii.  Acts  of  what  Servants, 

"  Person  intrusted  with  Superintendence.'']— 
In  an  action  to  recover  compensation  under  the 
Employers'  Liability  Act,  1880,  it  appeared  that 
the  plaintiff,  with  other  workmen,  was  employed 
by  the  defendant  to  stow  bales  *  of  wool  in  the 
hold  of  a  ship.  The  workmen  were  divided  into 
gangs,  the  foreman  of  the  plaintiffs  gang  being 
B.  B.  was  himself  a  labourer,  working  on  deckT 
and  he  gave  the  signal  to  the  men  below  when 
the  bales  were  being  dropped  down  the  hatch* 
way  into  the  hold.  The  plaintiff,  who  was 
below,  was  injured  by  a  bale  which,  according 
to  his  statement,  was  dropped  down  without 
sufficient  warning  being  given  by  B.  to  enable 
him  to  get  out  of  the  way  : — Held,  that  the 
plaintiff  was  not  entitled  to  recover,  as  B.  was 
not  a  person  who  had  superintendence  intrusted 
to  him  within  8. 1,  sub-s.  2,  as  denned  by  a  8, 
nor  was  there  any  evidence  that  the  injury  re- 
sulted from  the  plaintiff  having  conformed  to 
any  order  of  B.  within  s.  1,  snb-a.  3,  assuming 
that  B.  was  a  person  to  whose  orders  the  plaintiff 
was  bound  to  conform.  Kellard  v.  Books,  21 
Q.  B.  D.  367  ;  57  L.  J.,  Q.  B.  599  ;  36  W.  R.87S; 
62  J.  P.  820— C.  A. 

An  employer  may  be  liable  under  s.  1  of  the 
Employers'  Liability  Act,  1880,  where  personal 
injury  is  caused  to  a  workman,  within  s.  2,  "  by 
reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  who  has  any  superinten- 
dence entrusted  to  him  whilst  in  the  exercise  of 
such  superintendence,"  although  the  superinten- 
dent, when  negligent,  is  voluntarily  assisting  in 
manual  labour  ;  the  superintendent  need  not  of 
necessity  have  actual  superintendence  over  the 
workman  injured.  Bay  v.  Wallis,  51  J.  P.  619 
— D. 

"  Parson  to  whose  Orders  Plaintiff  bound  to 
oonform."]— The  1st  section  of  the  Employers' 
Liability  Act,  1880,  provides  that  where  personal 


1198 


MASTER    AND    SERVANT. 


1194 


injury  is  erased  to  a  workman  (8)  by  reason  of 
the  negligence  of  any  person  in  the  service  of  the 
employer  to  whose  orders  or  directions  the  work- 
man at  the  time  of  the  injury  was  bound  to  con- 
form, and  did  conform,  where  such  injury  resulted 
from  his  having  so  conformed,  the  workman,  or, 
in  case  the  injury  results  in  death,  his  legal  per- 
sonal representatives,  shall  have  the  same  right 
of  compensation  against  the  employer  as  if  the 
workman  had  not  been  a  workman  of  nor  in  the 
ferrice  of  the  employer  nor  engaged  in  his  work. 
The  plaintiff,  a  boy  employed  by  the  defendants, 
a  railway  company,  was  assisting  a  carman  of 
the  defendants,  under  whose  directions  he  was, 
in  unloading  from  a  van  three  large  iron  window 
frames.  The  frames  were  standing  upright  in 
the  van,  secured  at  each  end  to  the  hoops  of  the 
fan  by  a  string.  The  carman  untied  the  string 
at  one  end  of  the  frames,  and  the  plaintiff  untied 
the  itring  at  the  other  end.  The  carman  did  not 
expressly  order  the  plaintiff  to  untie  the  string, 
bit  the  plaintiff  stated  that  he  did  so  without 
ordera  because  he  had  done  so  on  previous  occa- 
sions, and  that  the  carman  saw  him  untie  the 
string  and  made  no  objection.  The  carman  then 
removed  one  of  the  frames  without  retying  the 
two  remaining  frames,  leaving  them  standing 
unsecured.  They  directly  afterwards  fell  on  the 
plaintiff,  causing  him  injuries  in  respect  of 
which  he  sued  the  defendants  for  compensation 
under  the  Employers'  Liability  Act,  1880  :— 
Held,  that  there  was  on  the  above  facts  evidence 
of  an  injury  to  the  plaintiff  by  reason  of  the 
negligence  of  a  fellow- workman  to  whose  orders 
he  was  bound  to  conform,  and  did  conform,  and 
which  resulted  from  his  having  so  conformed. 
MUlward  v.  Midland  Railway,  14  Q.  8.  D.  68  ; 
54  L.  J.,  Q.  B.  202  ;  52  L.  T.  255  ;  33  W.  R.  366  ; 
49  J.  P.  453— D.  And  see  Kellard  v.  Rooke, 
npra. 

Futon  hawing  "  Charge  or  Control "  of  Points.] 
—In  an  action  for  compensation  under  the  Em- 
ployers' Liability  Act,  1880,  the  evidence  showed 
that  it  was  the  duty  of  F.,  a  workman  employed 
in  the  signal  department  of  the  defendant*' 
railway,  to  clean,  oil,  and  adjust  the  points  and 
vim  of  the  locking  apparatus  at  various  places 
Along  a  portion  of  the  line,  and  to  do  slight 
repairs;  that  for  these  purposes  he  was,  with 
several  other  men,  subject  to  the  orders  of  an 
inspector  in  the  same  department,  who  was  re- 
sponsible for  the  points  and  locking  gear,  which 
*ere  moved  and  worked  by  men  in  the  signal 
taea,  being  kept  in  proper  "condition ;  and  that 
P.  having  taken  the  cover  off  some  points  and 
locking  gear,  in  order  to  oil  them,  negligently 
left  it  projecting  over  the  metals  of  the  line, 
▼hereby  injury  was  caused  to  a  fellow-workman : 
—Held,  that  there  was  no  evidence  for  the  jury 
that  F.  had  "  charge  or  control "  of  the  points 
within  the  meaning  of  s.  1,  sub-s.  5  of  the  Em- 

^'  Liability  Act,  1880,  so  as  to  make  the 
uits  liable  for  his  negligence.  Gibbt  v. 
fnat  Wutem  Railway,  12  Q.  B.  D.  208 ;  63 
L.Jn  Q.  a  543  ;  50  L.  T.  7  ;  32  W.  B.  329  ;  48 
J.P.230— C.A. 


fr-  Inrmpeet  of  what  Plant,  Works,  $e. 

"lailvay,"  what  i*.}— The  meaning  of  the 
*n*H  railway "  as  used  in  the  6th  sub-section 
« the  1st  section  of  the  Employers'  Liability 


Act,  1880,  is  not  confined  to  railways  belonging 
to  railway  companies  such  as  are  subject  to  the 
provisions  of  the  Railway  Regulation  Acts  ;  but 
the  sub-section  applies  to  a  temporary  railway 
laid  down  by  a  contractor  for  the  purposes  of 
the  construction  of  works.  Doughty  v.  Pirbank, 
10  Q.  B.  D.  358  ;  52  L.  J.,  Q.  B.  480 ;  48  L.  T. 
530 ;  48  J.  P.  55— D. 

"  Looomotive  Engine  " — 8team  Crane  fixed  on 
a  Trolly.] — A  steam  crane  fixed  on  a  trolly,  and 

Sropelled  by  steam  along  a  set  of  rails  when  it  is 
esired  to  move  it,  is  not  a  "  locomotive  engine  " 
within  the  Employers1  Liability  Act,  1880  (43  k 
44  Vict.  c.  42),  s.  1,  sub-s.  5.  Murphy  v.  Wilson, 
52  L.  J.,  Q.  B.  524  ;  48  L.  T.  788  ;  47  J.  P.  565  ; 
48  J.  P.  24— D. 

« Condition  of  the  Way."  ]  —  During  the 
building  of  a  house  the  workmen  obtained  access 
to  the  upper  part  by  ladders  placed  in  a  well 
intended  for  a  staircase.  There  was  another 
well  through  the  house  intended  for  a  lift,  down 
which  rubbish  had  been  thrown  during  the 
building.  Upon  the  staircase  being  completed, 
it  was  dosed  to  the  workmen  as  a  means  of 
access,  and  the  ladders  were  transferred  to  the 
lift-well.  No  precautions  had  been  taken  to 
prevent  workmen  from  throwing  rubbish  down 
the  lift- well  after  the  ladders  had  been  so  trans- 
ferred. The  plaintiff  was  ascending  one  of  the 
ladders  when  a  boy  threw  a  plank  down  from 
the  third  floor  which  struck  the  plaintiff  and 
broke  his  collar-bone : — Held,  that  this  was  not 
a  "  defect  in  the  condition  of  the  way  "  within 
the  meaning  of  sub-s.  1  of  s.  1  of  the  act ;  and 
that  the  fact  of  no  notice  or  warning  being 
given  to  stop  the  practice  of  throwing  materials 
down  the  lift-hole  did  not  have  the  effect  of 
bringing  the  case  within  that  sub-section. 
Pegram  v.  Dixon,  55  L.  J.,  Q.  B.  447  :  51  J.  P. 
198— D. 

"Works"— Wall  in  oourseof  Construction.] 
—In  the  Employers'  Liability  Act,  1880  (43  ft 
44  Vict  c.  42),  s.  1— defining  the  liability 
of  employers  for  personal  injury  caused  to 
their  workmen  (1)  "by  reason  of  any  defect 
in  the  condition  of  the  ways,  works,  machinery, 
or  plant  connected  with  or  used  in  the  business 
of  the  employer " — the  expression  "  works  " 
must  be  taken  to  mean  works  already  completed, 
and  not  works  in  course  of  construction,  which 
are  on  completion  to  be  connected  with  or  used 
in  the  business  of  the  employer.  Howe  v.  Wneh9 
17  Q.  B.  D.  187  ;  84  W.  R.  598  ;  61  J.  P.  27« 
— D. 

"Condition  ef  Plant."]  —  The  Employers' 
Liability  Act,  1880,  which  gives  a  workman  a 
right  of  action  against  his  employer  for  personal 
injury  by  reason  of  any  defect  in  the  condition 
of  the  plant  used  in  the  business  of  the  em- 
plover,  applies  to  a  case  where  the  plant  is 
unfit  for  the  purpose  for  which  it  is  used,  though 
no  part  of  it  is  shown  to  be  unsound.  Plaintiff,  a 
workman  in  defendants'  employment,was  injured 
by  reason  of  the  breaking  of  a  ladder,  which  was 
being  used  to  support  a  scaffold.  The  ladder  was 
insufficient  for  the  purpose  for  which  it  was  being 
used,  and  the  scaffold  and  ladder  had  been  placed 
and  were  being  used  under  the  directions  of  one 
of  the  defendants  : — Held,  that,  under  the  above 
circumstances,   there   was   evidence   that   the 


1195 


MASTER   AND    SERVANT. 


1196 


plaintiff  had  been  injured  by  reason  of  a  defect 
in  the  condition  of  the  plant,  owing  to  the 
negligence  of  his  employer,  within  the  meaning 
of  the  Employers'  Liability  Act,  1880.  Grippe 
v.  Judge,  13  Q.  B.  D.  583 ;  63  L.  J.,  Q.  B.  517  ; 
61  L.  T.  182  ;  33  W.  R.  35  ;  49  J.  P.  100— C.  A. 

A  wharfinger  who  for  the  purposes  of  his 
business  was  the  owner  of  carts  and  horses, 
owned  one  horse  of  a  vicious  nature,  that  was 
unfit  to  be  driven  by  a  careful  driver.  The 
plaintiff  was  in  the  wharfinger's  employ  and  had 
to  drive  the  carts  and  to  load  ana  unload  the 
goods  carried  in  them.  In  an  action  for  injury 
by  reason  of  the  viciousness  of  the  horse : — Held, 
that  the  horse  was  "  plant "  used  in  the  business 
of  the  wharfinger,  and  that  the  vice  in  the 
horse  was  a  "  defect "  in  the  condition  of  such 
plant  within  the  meaning  of  section  1  of  the 
act.  Yarmouth  v.  France,  19  Q.  B.  D.  647  ;  57 
L.  J.,  Q.  B.  7 ;  36  W.  R.  281— D.  See  also  Weblin 
v.  Ballard,  post,  coL  1197. 


"Condition  of  Machinery" — Dangerous  Ma- 
chine.]— The  mere  fact  that  a  machine  is  danger- 
ous to  a  workman  employed  to  work  with  it 
does  not  show  that  there  is  a  defect  in  the 
condition  of  the  machine  within  the  meaning 
of  the  Employers'  Liability  Act,  1880,  s.  1, 
sub-s.  1,  inasmuch  as  by  s.  2,  sub-s.  1,  of  the 
act  the  only  defects  in  respect  of  which 
the  employer  is  liable  are  defects  implying 
negligence  of  the  employer  or  some  one  in  his 
service  entrusted  by  him  with  the  duty  of  seeing 
that  the  machine  is  in  proper  condition.  Walsh 
v.  Whiteley,  21  Q.  B.  D.  871  ;  57  L.  J.,  Q.  B. 
686  ;  36  W.  R.  876  ;  63  J.  P.  38— C.  A. 

The  plaintiff  in  an  action  under  the  Employers' 
Liability  Act,  1880,  was  employed  by  the  defen- 
dants to  work  at  a  carding  machine.  Part  of 
the  machine  consisted  of  a  wheel  or  pulley  upon 
which,  while  in  motion,  the  plaintiff  had  to 

Elace  a  band.    The  disc  of  the  wheel  had  holes 
l  it,  and,  while  the  plaintiff  was  putting  on  the 
band,  his  thumb  slipped  through  one  of  these 
holes,  the  result  being  that  it  was  caught  be- 
tween the  wheel  and  the   bed-plate   of   the 
machine  and  cut  off.   It  was  proved  that,  though 
these  wheels  were  sometimes   made  without 
such  holes,  they  were  very  commonly  made  with 
them,  the  object  being  to  reduce  the  weight  of 
the  wheel  and  consequent  friction.    In  the  de- 
fendants' mill  there  were  machines   of   both 
sorts,  and  it  did  not  appear  that  any  complaint 
had  previously  arisen  with  regard  to  the  wheels 
with  holes,  the  plaintiff  himself  stating  that  he 
had  never  complained  of  the  machine  because  it 
had  never  entered  into  his  head  that  it  was 
dangerous  : — Held,  (Lord  Esher,  M.R..  dissent- 
ing), that  there  was  no  evidence  of  any  defect 
in  the  machine   implying    negligence  in   the 
defendants  or  any  one  in   their  service,  and 
therefore  that  the  defendants  were  not  liable.  lb. 
The  Employers'  Liability  Act,    1880  (43    & 
44  Vict,  c.  42),  which  gives  a  workman  a  right 
of  action   against   his   employer  for   personal 
injury  by  reason  of  any  defect  in  the  con- 
dition of  the  machinery  used  in  the  business 
of   the   employer,   applies    to   a   case   where 
the   machine,   though    not    defective    in   its 
construction  was,  under  the  circumstances  in 
which  it  was  used,  calculated  to  cause  injury  to 
those  using  it.    The  deceased,  a  workman  in  the 
employment  of  the  defendants,  was  killed  by  a 
piece  of  coke  falling  from  a  lift  used  at  a  blast 


furnace  belonging  to  them.  The  lift  consisted 
of  two  platforms  which  ascended  and  de- 
scended alternately,  and  at  the  time  when  the 
deceased  was  injured  he  was  removing  empty 
barrows  from  the  platform  which  was  at  rest  at 
the  bottom  of  the  lift.  There  was  evidence  that 
the  accident  arose  either  from  the  sides  of  the  lift 
not  being  fenced  so  as  to  prevent  coke  from  fall- 
ing over,  or  from  the  lower  platform  not  being 
roofed  so  as  to  protect  those  working  on  it  from 
falling  coke: — Held,  that  under  the  circum- 
stances there  was  a  "  defect  in  the  condition  "  of 
the  lift  for  which  the  defendants  were  liable. 
Heske  v.  SamueUon,  12  Q.  B.  D.  30 ;  53  L.  J., 
Q.  B.  45  ;  49  L.  T.  474— D. 

The  plaintiff,  a  lad  of  nineteen,  was  employed 
in  the  defendants'  paper  mill  at  a  machine  for 
cutting  jute.  The  material  passed  under  a  roller 
which  conveyed  it  to  the  cutter ;  but  the  roller 
being  in  several  pieces  or  sections,  with  interstices 
between  them  into  which  the  jute  sometimes  got, 
and  so  impeded  the  action  of  the  machine,  it  was 
necessary  (or  usual)  to  remove  it  by  the  hand. 
In  doing  this  the  plaintiff  lost  three  fingers.  The 
defect  had  been  pointed  out  to  the  defendants, 
who,  to  remedy  it,  procured  a  roller  in  one  piece ; 
but  the  accident  happened  before  the  new  roller 
was  placed.  The  maker  swore  that  with  care 
both  rollers  were  equally  safe.  The  jury  having 
found  that  the  injury  to  the  plaintiff  was  caused 
by  a  defect  in  the  machine  known  to  the  defen- 
dants, and  not  remedied  by  them  : — Held,  that 
this  finding  was  warranted  by  the  evidence. 
Paley  v.  Garnett,  16  Q.  B.  D.  62  ;  34  W.  B.  295 ; 
50  J.  P.  469— D. 


v.  Effect  of  Contributory  Negligence* 

As  a  Defence.] — A  defence  of  contributory 
negligence  may  be  relied  on  in  an  action  under 
the  Employers' Liability  Act.  McBcoy  v.  Water- 
ford  Steamship  Company,  18  L.  R.,  Ir.  159— Ex. 
D. 

Knowledge  of  Defect.] — An  employer,  when 
sued  under  the  Employers'  Liability  Act,  1880, 
for  personal  injury  to  a  workman  caused  by  any 
of  the  matters  mentioned  in  s.  1  of  the  act,  can- 
not avail  himself  of  the  defence  that  the  injury 
was  caused  by  the  negligence  of  a  fellow  servant, 
or  that  the  workman  had  contracted  to  take 
upon  himself  the  risks  incident  to  the  employ- 
ment ;  but  he  may  avail  himself  of  the  defence 
of  contributory  negligence  on  the  part  of  the 
workman,  and  also,  under  8.  2,  sub-s.  3,  of  his 
failure  to  give  notice  of  the  defect  or  negligence 
which  caused  the  injury.     The  deceased  wss 
employed  as  fireman  at  the  defendant's  brewery. 
In  the  engine-room,  at  some  distance  from  the 
floor,  was  a  valve  to  turn  on  steam  to  a  donkey- 
engine.    This  valve  was  only  reached  by  means 
of  a  ladder  placed  against  a  lower  pipe,  bat,  by 
reason  of  a  bend  in  the  last-mentioned  pipe,  the 
ladder  (though  in  itself  perfect),  being  without 
hooks  or  stays,  was  unsafe  for  the  purpose  for 
which  it  was  used.    The  defendant  had  himself 
seen  the  ladder  so  used.  The  deceased  was  found 
dead  in  the  engine-room,  having  been  apparently 
killed  by  the  ladder  slipping  while  he  was  npon 
it.    In  an  action  by  his  personal  representauTe 
under  the  Employers'  Liability  Act,  the  county 
court  judge  found  that  there  was  a  defect  in  the 
condition  of  the  plant  within  the  meaning  of 
s.  1,  sub-s.  1,  of  the  act,  and  that,  although  the 


f 


1197 


MASTER   AND    SERVANT. 


1198 


deceased  knew  of  the  defect,  he  was  excused 
from  informing  the  defendant  of  it,  because  he 
▼as  aware  that  the  latter  knew  of  it : — Held, 
that  this  finding  was  warranted  by  the  evidence, 
and  that  contributory  negligence  on  the  part  of 
the  deceased  was  not  necessarily  proved  by  the 
mere  fact  that  he  knew  that  the  work  was  of 
itaelf  dangerous.  Weblin  v.  Ballard,  17  Q.  B. 
D.  122 ;  55  L.  J.,  Q.  B.  395 ;  54  L.  T.  532 ;  34 
W.  R.  455 ;  50  J.  P.  597— D. 

Where  a  waggon  was  in  a  defective  state,  of 
which  a  workman  was  aware,  and  he  used  it  in 
such  a  way  as  to  cause  injury  to  himself,  when 
he  knew  how  to  use  and  might  have  used  it  so 
at  not  to  cause  injury  to  himself,  he  cannot 
recover  under  the  Employers'  Liability  Act,  1880, 
a.  1.  Martin  v.  Connah'i  Quay  Alkali  Company, 
83  W.  B.  216— D. 


vi.  Risk  voluntarily  Incurred, 

"Volenti  non  fit  injuria."]— The  plaintiff  was 
employed  in  a  cooling  room  in  the  defendant's 
brewery.  In  the  room  were  a  boiling  vat  and  a 
cooling  vat,  and  between  them  ran  a  passage 
which  was  in  part  only  three  feet  wide.  The 
cooling  vat  had  a  rim  raised  sixteen  inches 
above  the  level  of  the  passage,  but  it  was  not 
fenced  or  railed  in.  The  plaintiff  went  along 
this  passage  to  pull  a  board  from  under  the 
boiling  vat.  This  board  stuck  fast  and  then 
came  away  suddenly,  so  that  he  fell  back  into 
the  cooling  vat  and  was  scalded.  In  an  action 
under  the  Employers*  Liability  Act,  1880:— 
Held  (Lord  Eaher,  M.R.,  dissenting),  that  the 
defence  arising  from  the  maxim  volenti  non  fit 
injuria  had  not  been  affected  by  the  Employers' 
Liability  Act,  1880,  and  applied  to  the  present 
case,  and  that  there  was  therefore  no  evidence 
of  negligence  arising  from  a  breach  of  duty  on 
the  part  of  the  defendant  towards  the  plaintiff, 
and  that  the  plaintiff  was  not  entitled  to  recover. 
Tkmat  v.  Quartermainc,  18  Q.  B.  D.  685 ;  56 
L.  J.,  Q.  B.  340  ;  57  L.  T.  537  ;  35  W.  R.  555  ; 
51  J.  P.  516— C.  A. 

In  an  action  to  recover  compensation  under 
the  Employers'  Liability  Act,  1880,  it  appeared 
that  the  plaintiff  was  in  the  employment  of  the 
defendant,  who  was  a  wharfinger,  and  for  the 
purposes  of  his  business  the  owner  of  carts  and 
nones.  It  was  the  duty  of  the  plaintiff  to  drive 
the  carts  and  to  load  and  unload  the  goods 
which  were  carried  in  them.  Among  the  horses 
was  one  of  a  vicious  nature  and  unfit  to  be  driven 
even  by  a  careful  driver.  The  plaintiff  objected 
to  drive  this  horse,  and  told  the  foreman  of  the 
stable  that  it  was  unfit  to  be  driven,  to  which 
the  foreman  replied  that  the  plaintiff  must  go  on 
driving  it,  and  that  if  any  accident  happened  his 
employer  would  be  responsible.  The  plaintiff 
continued  to  drive  the  horse,  and  while  sitting 
on  his  proper  place  in  the  cart  was  kicked  by 
the  animal,  and  his  leg  was  broken  : — Held 
(tapes,  IbJ.,  dissenting),  that  upon  the  facts  a 
jury  might  find  the  defendant  to  be  liable,  for 
there  was  evidence  of  negligence  on  the  part  of 
his  foreman,  and  the  circumstances  did  not  con- 
clusively show  that  the  risk  was  voluntarily 
incurred  by  the  plaintiff.  Thomas  v.  Quarter- 
•una*  (18  Q.  B.  D.  685)  distinguished.  Per 
lopes,  LJ.,  dissenting,  that  there  was  no 
evidence  for  the  jury  of  the  defendant's  liability, 
inasmuch  as  the  facta  showed  that  the  plaintiff, 


with  full  knowledge  of  the  risk  to  which  he  was 
exposed,  had  elected  to  continue  in  the  defen- 
dant's employment.  Yarmouth  v.  France,  19 
Q.  B.  D.  647 ;  57  L.  J.,  Q.  B.  7  ;  36  W.  R.  281— 
D. 

Breach  of  Statutory  Duty.]— The  plain- 
tiff's husband  had  been  employed  in  the  defen- 
dant's coal  mine.  One  of  the  rules  established 
in  the  mine  under  s.  52  of  the  Goal  Mines  Regu- 
lation Act,  1872,  required  a  banksman  to  be 
constantly  present  while  the  men  were  going  up 
or  down  the  shaft,  but  it  was  the  regular  practice 
of  the  mine,  as  the  plaintiff's  husband  well  knew, 
not  to  hare  a  banksman  in  attendance  during 
the  night.  The  plaintiffs  husband  was  killed  in 
coming  out  of  the  mine  at  night  by  an  accident 
arising  through  the  absence  of  a  banksman.  In 
an  action  under  the  Employers'  Liability  Act, 
1880  :— Held,  that  the  defence  arising  from  the 
maxim  volenti  non  fit  injuria  was  not  applicable 
in  cases  where  the  injury  arose  from  the  breach 
of  a  statutory  duty  on  the  part  of  the  employer, 
and  that  the  plaintiff  was  entitled  to  recover. 
Thomas  v.  Quartermaine  (supra)  discussed. 
Baddeley  v.  Granville  (Earl),  19  Q.  B.  D.  423  ; 
56  L.  J.,  Q.  B.  501 ;  57  L.  T.  268 ;  36  W.  R.  63  ; 
61  J.  P.  822— D. 

vii.  Practice, 

Reviewing  Verdict  of  Jury.] — Upon  an  appeal 
from  the  judgment  of  a  county  court  awarding 
compensation  under  the  act,  the  High  Court  is 
not  entitled  to  consider  whether  the  findings  are 
such  as  the  High  Court  would  hare  arrived  at, 
but  can  only  consider  whether  or  not  there  was 
reasonable  evidence  to  support  them.  Weblin  v. 
Ballard,  supra. 

Limit  of  Damages— Overtime  Wages.]— The 
plaintiff,  in  an  action  brought  under  the  Em- 
ployers' Liability  Act,  1880,  proved  as  damages 
loss  of  wages  in  respect  both  of  his  employment 
with  the  defendants,  and  also  in  respect  of 
certain  overtime  labour  under  another  employer. 
The  jury  awarded  damages  under  both  heads, 
but  the  county  court  judge  held  that  the  plaintiff 
was  only  entitled  to  receive  damages  in  respect 
of  his  estimated  earnings  under  the  defendants. 
The  amount  of  damages  awarded  was  less  than 
the  amount  he  might  have  been  awarded  in 
respect  of  his  estimated  earnings  for  three  years 
in  the  defendants'  service  : — Held,  that  s.  3  of 
the  Employers'  Liability  Act,  1880,  does  not 
give  a  measure  of  damages,  but  only  a  limit 
within  which  the  jury  may  award  damages,  and 
that  the  plaintiff  was  entitled  to  recover  in 
respect  of  ooth  employments.  Borlick  or  Bor- 
tick  v.  Head,  53  L.  T.  909  ;  34  W.  R.  102 ;  60 
J.  P.  827— D. 

Trial  of  Action  in  County  Court— Certiorari] 
— See  County  Court,  4. 


II.    LIABILITY  OF  MASTER  TO 
THIRD  PERSONS. 

Accidental  Damage  to  Street  Lamp.]  —  A 
master  is  not  liable  under  s.  207  of  the  Metropolis 
Local  Management  Act,  for  the  accidental 
breaking  by  his  servant  of  a  street  lamp,  the  top 


1199 


MASTER   AND    SERVANT— MAXIMS. 


1200 


of  which  projected  over  the  kerb,  such  accident 
haying  been  caused  by  some  goods  on  a  van, 
which  the  servant  was  driving,  coming  in  con- 
tact with,  and  wrecking  the  top  of  the  lamp. 
Harding  v.  Barker,  37  W.  R.  78 ;  53  J.  P.  308 
— D. 

For    Servant's    Negligenee.]  —  See    Neoli- 

QBMOB. 

8eope  of  Employment] — M.  was  a  cloak-room 
clerk  in  the  defendants'  employ,  and  assisted  at 
the  parcels'  office ;  he  "  usea  to  take  op  parcels 
for  passengers  from  the  cloak  room  to  the  train, 
when  there  was  no  porter  there,  and  that  was  a 
regular  thing  for  him  to  do."  A  passenger  had 
asked  him  to  take  a  parcel  to  the  train,  which  he 
did,  and  as  he  was  running  back,  he  ran  against 
another  porter,  who  in  his  turn  came  against  the 
ticket-collector,  and  the  ticket-collector  upset  the 
plaintiff's  wife,  causing  injuries  which  resulted 
in  her  death.  At  the  trial  the  plaintiff  was  non- 
suited, on  the  ground  that  there  was  no  evidence 
that  at  the  time  of  the  accident  M.  was  acting 
within  the  scope  of  his  employment.  It  was 
agreed  at  the  trial  that,, if  the  court  should  be  of 
opinion  that  the  nonsuit  was  wrong,  judgment 
should  be  entered  for  the  plaintiff  for  2362.  and 
costs : — Held,  that  there  was  evidence  to  go  to 
the  jury  that  at  the  time  of  the  accident  M.  was 
acting  within  the  scope  of  his  employment,  that 
the  nonsuit  was  wrong,  and  that  judgment 
should  be  entered  for  the  plaintiff  as  agreed. 
Milner  v.  Great  Northern  Railway,  60  L.  T. 
367— D. 

A  passenger  on  a  tramway  tendered  a  half 
sovereign  to  the  conductor  of  the  car  in  payment 
of  the  fare.  The  conductor,  supposing  the  coin 
to  be  counterfeit,  gave  the  passenger  in  charge 
to  the  police  : — Held,  that  the  tramway  company 
were  liable  in  an  action  against  them  by  the 
passenger  for  false  imprisonment.  Furlong  v. 
South  London  Tramways  Company,  48  J.  P.  329  ; 
1C.&E.  816— Stephen,  J. 

Section  52  of  the  TramwayB  Act,  1870,  which 
enacts  that "  it  shall  be  lawful  for  any  officer 
or  servant  of  the  promoters  or  lessees  of  any 
tramway  "  to  detain  any  person  defrauding  the 
company  of  his  fare,  must  be  construed  as 
limited  to  any  officer  or  servant  appointed  for 
that  purpose.  A  tramway  company  gave  to 
their  conductors  printed  instructions,  in  which 
it  was  ordered  that,  except  in  cases  of  assault, 
conductors  were  not  to  give  passengers  into 
custody  without  the  authority  of  an  inspector  or 
timekeeper.  The  conductor  of  a  car,  in  which 
the  plaintiff  was  a  passenger,  detained  the 
plaintiff,  and  gave  her  into  custody  on  a  charge 
of  passing  bad  money : — Held,  in  an  action  for 
false  imprisonment  against  the  company,  that 
the  defendants  were  not  liable.  Charleston  v. 
London  Tramways  Company,  36  W.  R.  367 — D. 
Affirmed  32  S.  J.  667— C.  A. 

A  servant  who  commits  an  unnecessary  assault 
in  levying  a  distress  is  not  acting  within  the 
scope  of  his  employment  Richards  v.  West 
Middlesex  Waterworks  Company,  15  Q.  B.  D. 
660  j  64  L.  J.,  Q.  B.551  ;  33  W.  ft.  902  ;  49  J.  P. 
631— D. 


MAURITIUS. 

See  COLONY. 


MAXIMS. 

Generally.]— I  need  hardly  repeat  that  I 
detest  the  attempt  to  fetter  the  law  by  maxims. 
They  are  almost  invariably  misleading ;  they  are 
for  the  most  part  so  large  and  general  in  their 
language  that  they  always  include  something 
which  really  is  not  intended  to  be  included 
in  them.  Yarmouth  v.  France,  19  Q.  B.  D.  663  ; 
57  L.  J.,  Q.  B.  7  ;  36  W.  B.  283— Per  Esher 
(Lord),  M.R. 

"Expressio  unius,  exelusio  alterius,"]— I 
may  observe  that  the  method  of  construction 
summarised  in  the  maxim,  *'  expressio  unius, 
exelusio  alterius,"  is  one  that  certainly  requirei 
to  be  watched.  Perhaps  few  so-called  rules  of 
interpretation  have  been  more  frequently  mis- 
applied and  stretched  beyond  their  due  limits. 
Colquhovn  v.  Brooks,  19  Q.  B.  D.  406  ;  57  L.  J., 
Q.  B.  70 ;  67  L.  T.  448 ;  36  W.  B.  332— Per 
Wills,  J.  See  also  S.  C.  in  C.  A.,  per  Esher 
(Lord),  M.R.,  21  Q.  B.  D.  65  ;  57  L.  J.,  Q.  B. 
439  ;  69  L.  T.  661  ;  36  W.  R.  657  ;  52  J.  P.  645. 

The  maxim  u  Expressio  unius,  exelusio 
alterius"  is  often  a  valuable  servant,  but  a 
dangerous  master  to  follow  in  the  construction 
of  statutes  or  documents.  The  exelusio  is  often 
the  result  of  inadvertence  or  accident,  and  the 
maxim  ought  not  to  be  applied,  when  its  appli- 
cation, having  regard  to  the  subject-matter  to 
which  it  is  to  be  applied,  leads  to  inconsistency 
or  injustice.  Colquhoun  v.  Brooks,  21  Q.  B.  D. 
65  ;  67  L.  J.,  Q.  B.  439  ;  69  L.  T.  661 ;  36  W.  R 
667  ;  52  J.  P.  646— Per  Lopes,  L  J. 

"Ho  one  can  take  Advantage  of  his  own 
Wrong."] — The  maxim  that  no  man  can  take 
advantage  of  his  own  wrong  is  somewhat  ob- 
scure ;  but  in  my  opinion  it  only  means  this : 
that  a  man  cannot  enforce  against  a  person 
whom  he  has  wronged  by  a  breach  of  contract 
or  a  breach  of  duty,  a  right  created  against  such 
person  by  Buch  breach  of  contract  or  duty.  The 
maxim  can  only  be  employed  by  the  person 
against  whom  the  wrong  nas  been  done,  except 
where  the  person  having  a  derivative  right  has 
been  clothed  with  the  full  rights  of  the  person 
from  whom  he  has  derived  his  title.  London 
Celluloid  Company,  In  re,Bayley  and  Hanbury's 
case,  39  Ch.  D.  190 ;  57  L.  J.,  Ch.  843 ;  59 
L.  T.  109  ;  36  W.  R.  673 ;  1  Meg.  45— Per 
Bowen,  L.J. 


"  A  Grantor  shall  not  Derogate  from 
Grant."] — The  maxim  that  a  grantor  shall  not 
derogate  from  his  own  grant,  does  not  entitle  a 
grantee  of  a  house  to  claim  an  easement  d  light 
to  an  extent  inconsistent  with  the  intention  to 
be  implied  from  the  circumstances  existing  at 
the  time  of  the  grant  and  known  to  the  grantee. 
Birmingham  Banking  Company  v.  Ross,  38  Ch. 
D.  295 ;  67  L.  J.,  Ch.  601 ;  69  L.  T.  609;  36 
W.  B.  914-0.  A. 


1201 


MAXIMS— MAYOR'S    COURT. 


1202 


"  Equity  looks  on  that  m  Done  which  ought 
to  be  Done."] — The  maxim  that  equity  looks 
upon  that  as  done  which  ought  to  be  done,  ap- 

Elies  only  (in  cases  depending  upon  contract)  in 
ivoar  of  persons  who  are  entitled  to  enforce  the 
contract,  and  cannot  be  invoked  by  volunteers. 
Andis,  In  re,  Chetwynd  v.  Morgan,  81  Ch.  D. 
696 ;  54  L.  T.  742  ;  34  W.  R.  483—0.  A. 

"Actio  personalis  moritur  cum  Persona."] — 
See  Practice  (Parties). 

"  Cajus  est  Solum  ejus  est  usque  ad  cesium/'] 
—8ee  Wandsworth  Board  of  Works  v.  United 
Telephone  Company,  13  Q.  B.  D.  904  ;  53  L.  J., 
Q.  B.  449  ;  51  L.  T.  148 ;  32  W.  R.  776  ;  48  J.  P. 
676-C.A. 

"Damnum  Absque  Injuria."]— &*  Street  v. 
Union  Bank  of  Spain  and  England,  30  Ch.  D. 
156 ;  55  L.  J.,  Ch.  31  ;  53  L.  T.  262 ;  32  W.  R. 
901— Pearson,  J. 

"In  pari  delicto  potior  est  conditio  possi- 
dentis."]—^ Herman  v.  Zeuchner,  16  Q.  B.  D. 
661  ;  54  L.  J.,  Q.  B.  340  ;  53  L.  T.  94  ;  33  W.  R. 
606  ;  49  J.  P.  502— C.  A. 

"sTemo  Us  ▼ezari  debet"]— See  Bmnsden  v. 
Rwmphrey,  14  Q.  B.  D.  141  ;  53  L.  J.,  Q.  B.  476  ; 
61  L.  T.  529  ;  32  W.  R.  944  ;  49  J.  P.  4— C.  A. 

"Omuls  nova  constitutio  futuri*  formam  im- 
joaere  debet  etnon  preteritis."]— See  Hough  v. 
Wind**,  12  Q.  B.  D.  224  ;  53  L.  J.,  Q.  B.  165  ; 
60  L.  T.  312  ;  32  W.  R.  452  ;  1  M.  B.  R.  1— C.  A. 
And  Reid  v.  Reid,  31  Ch.  D.  102  ;  55  L.  J.,  Ch. 
294 ;  64  L.  T.  100  ;  34  W.  R.  333— Per  Bowen, 
LJ. 

"Omnia  pnssumuntur  rite  esse  acta,"] — See 
Lauderdale  Peerage,  The,  10  App.  Cas.  692— 
H.L.(Sc) 

H  Qui  melt  pet  alium  facit  per  se."  \—See  Mill* 
▼.  Armstrong,  13  App.  Cas.  1  ;  57  L.  J.,  P.  65  ;  58 
L.  T.  423  ;  36  W.  R.  870  ;  52  J.  P.  212  ;  6  Asp. 
M.  C.  257— H.  L.  (E.) 

a<W  prior  est  tempore  potior  est  jure."}— 
See  8ocUt4  Generate  de  Paris  v.  Walker,  11 
App.  Cas.  20 ;  55  L.  J.,  Q.  B.  169  ;  54  L.  T.  389  ; 
34  W.  B.  662— H.  L.  (B.)  ;  and  Lamberts  Estate, 
is  re,  13  L.  R.,  Ir.  234— C.  A. 

"Qoamdoaliquidprohibetur  fieri,  ex  directo 
prohibetur  et  per  obliquum,"]— See  Rosher,  In 
re,  Rosher  v.  Rosher,  26  Ch.  D.  821 ;  58  L.  J., 
Ch.  722— Pearson,  J. 

"  Quando  aliquid  mandatur,  mandatur  et  omne 
jer  quod  pervenitur  ad  illud."  J— See  Murray  v. 
SeoU,  9  App.  Cas.  519 ;  53  L.  J.,  Ch.  745  ;  61 
L.  T.  462 ;  33  W.  R.  173— H.  L.  (B.) 

"(fculdquid  plantatur  solo,  solo  eedit"]— See 
AinsUe,  In  re,  Swinbum  v.  Ainslie,  30  Ch.  D. 
485;  55  L.  J.,  Ch.  615 ;  53  L.  T.  645  ;  33  W.  R. 
•10;  50  J.  P.  180— C.A. 

"Btsptadaat  Superior."]— &*  White  v.  Peto, 
«  L.  T.  710— Kay,  J. ;  and  Harding  v.  Barker, 
37W.R.78;  63J.  P.308-D. 


"  8ic  utere  tuo  ut  alienum  non  lssdas."] — See 
Whalley  v.  Lancashire  and  Yorkshire  Railway, 
13Q.B.D.131;  53  L.  J.,  Q.B.286;  50L.T.472; 
32  W.  R.  711 ;  48  J.  P.  500— C.  A. ;  Love  v.  Bell, 
9  App.  Cas.  286;  63  L.  J.,  Q.  B.  257;  61  L.  T.  1 ; 
32  W.  R.  725  ;  48  J.  P.  516— H.  L.  (E.) ;  and 
Farrer  v.  Nelson,  15  Q.  B.  D.  258 ;  54  L.  J.,  Q.  B. 
386;  62  L.  T.  769;  33  W.  R.  800;  49  J.  P.  725 
— D. 

11  Verba  ehartarum  fortius  accipiuntur  contra 
proferentem."]— See  Birrell  v.  Dryer,  9  App. 
Cas.  345  ;  51  L.  T.  130  ;  5  Asp.  M.  C.  267— H.  L. 
(Sc).  And  Burton  v.  Enolish,  12  Q.  B.  D.  218  ; 
53  L.  J.,  Q.  B.  133  ;  49  L.  T.  768  ;  32  W.  R.  655  ; 
5  Asp.  M.  C.  187— C.  A. 

"  Volenti  non  fit  Injuria."]— See  Thomas  v. 
Quartermaine,  Baddeley  v.  Granville  (JLord), 
and  Yarmouth  v.  France,  ante,  cols.  1197, 1198  ; 
Thrussell  v.  Handy  side,  20  Q.  B.  D.  359  ;  57 
L.  J.,  Q.  B.  347  ;  68  L.  T.  344 ;  62  J.  P.  279— D. ; 
and  Osborne  v.  London  and  North  Western 
Railway,  21  Q.  B.  D.  220 ;  57  L.  J.,  Q.  B.  618  ; 
59  L.  T.  227  ;  36  W.  R.  809  ;  62  J.  P.  806— D. 


MAYOR'S    COURT. 

1.  Jurisdiction, 

2.  Certiorari. 

3.  Appeal. 


1.  Jurisdiction. 

"Carry  on  Business  "—Solicitor's  Clerk.]— 
A  clerk  employed  by  a  solicitor  at  offices  in  the 
City  of  London  does  not  "  carry  on  business  " 
there  within  the  meaning  of  the  Mayor's  Court 
Extension  Act,  1867  (20  &  21  Vict.  c.  clvii), 
s.  12,  so  as  to  be  subject  to  the  jurisdiction  of 
the  Mayor's  Court.  Lewis  v.  Graham  or  Gra- 
ham v.  'Lewis,  22  Q.  B.  D.  1  ;  68  L.  J.,  Q.  B.  117  ; 
37  W.  R.  73  ;  53  J.  P.  166— C.  A.  Affirming  59 
L.  T.  86— D. 

Claim  over  a>50— Contract  by  Telegram — Offer 
received  and  accepted  within  City.] — When  an 
offer  is  sent  by  telegram  and  a  telegram  in  reply 
is  sent  accepting  the  offer,  the  contract  is  com- 
plete on  the  despatch  of  the  telegram  in  reply. 
An  action  was  brought  in  the  Mayor's  Court  for 
a  sum  of  50Z.  for  money  had  and  received, 
alleged  to  have  been  received  under  bets  made 
bv  the  defendant  on  behalf  of  the  plaintiff.  The 
plaintiff  had  sent  a  telegram,  "  rut  me  on  so 
much  on  such  a  horse,"  from  a  post-office  out- 
side the  City,  to  the  defendant,  a  "  bookmaker," 
who  had  offices  within  the  City.  This  telegram 
was  received  by  the  defendant  within  the  City, 
and  it  was  answered  by  a  telegram  sent  from  a 
telegraph  office  within  the  City  accepting  the 
offer : — Held,  refusing  a  motion  for  a  prohibition, 
that  the  contract  (if  any)  was  complete  on  the 
receipt  of  the  telegram  within  the  City  and  the 
sending  the  telegram  in  reply  within  the  City  ; 
that  the  whole  cause  of  action  (if  any)  arose 
within  the  City;  and  that  the  Mayor's  Court 
had  jurisdiction.  Cowan  v.  O*  Connor,  20  Q.  B. 
D.  640 ;  57  L.  J.,  Q.  B.  401  ;  58  L.  T.  857  ;  36 
W.  R.  895— D. 


1208 


MAYOB'S   COURT. 


1204 


Claim  not  exceeding  £50— Debt  Incurred  with- 
out but  assigned  within  Jurisdiction.]  —  The 
plaintiff  sued  the  defendant  in  the  Mayor's 
Court  upon  a  debt  which  had  been  incurred 
outside  the  jurisdiction,  but  which  had  been 
assigned  to  the  plaintiff  within  the  jurisdiction. 
On  an  application  for  a  prohibition  to  the 
Mayor's  Court: — Held,  that  the  assignment 
formed  part  of  the  cause  of  action,  and  that 
therefore  the  case  fell  within  the  jurisdiction  of 
the  Mayor's  Court.  Cooke  v.  Gill  (8  L.  R.,  C.  P. 
107)  foUowed.  Bead  v.  Brown,  22  Q.  B.  D.  128  ; 
68  L.  J.,  Q.  B.  120 ;  60  L.  T  250  ;  87  W.  R.  131 
— C.A. 


Account  stated.]— The  plaintiff's  soli- 


2.  Cebtioraki. 


citor,  who  carried  on  business  within  the  juris- 
diction of  the  Mayor's  Court,  wrote  to  the 
defendant  demanding  payment  of  11.  6s.  6d.  for 
goods  sold  and  delivered  by  him  to  the  plaintiff. 
Neither  of  the  parties  resided  or  carried  on  busi- 
ness, nor  was  the  contract  entered  into  within 
the  jurisdiction.  The  defendant,  in  a  letter 
written  to  the  plaintiff's  solicitor— posted  out- 
side, but  received  within  the  jurisdiction — ad- 
mitted that  he  owed  52.  6*.  6d.  to  the  plaintiff. 
The  plaintiff  having  brought  an  action  in  the 
Mayor's  Court  to  recover  52.  6*.  Sd.  on  an  ac- 
count stated,  the  defendant  obtained  a  writ  of 
prohibition : — Held,  that  the  admission  of  the 
defendant  and  the  bringing  of  the  action 
amounted  to  an  account  stated  within  the  juris- 
diction of  the  Mayor's  Court,  and  that  therefore 
the  Mayor's  Court  had  jurisdiction  to  try  the 
action.  Grundy  v.  Townsend,  36  W.  R.  631— 
C.  A. 

Bale   of  Property  —  Agreement  where 

made.] — The  defendant  verbally  agreed  outside 
the  city  of  London  and  the  liberties  thereof,  to 
purchase  from  the  plaintiff  the  lease  of  a  shop 
at  New  Cross,  in  Surrey,  with  the  goodwill  and 
stock-in-trade  of  a  drapery  business  carried  on 
there,  and  the  terms  thereof  were  embodied  in 
two  counterpart  documents,  one  of  which  was 
signed  by  the  defendant  at  Bow,  in  Middlesex, 
and  the  other  was  subsequently  signed  by  the 
plaintiff  within  the  city,  and  the  documents  so 
signed  were  then  exchanged  between  the  parties' 
solicitors  within  the  city.  Neither  of  the  parties 
dwelt  or  carried  on  business  within  the  city. 
There  remained  a  sum  of  502.,  balance  of  the 
purchase-money,  unpaid,  and  the  plaintiff  sued 
the  defendant  for  it  in  the  Mayor's  Court.  The 
defendant  thereupon  obtained  a  writ  of  prohibi- 
tion to  restrain  the  Mayor's  Court  from  further 
proceeding  with  the  action : — Held,  that  the  writ 
had  been  rightly  issued,  as  no  part  of  the  cause 
of  action  arose  within  the  jurisdiction  of  the 
Mayor's  Court.  Alderton  v.  Archer ■,  14  Q.  B.  D. 
1 ;  64  L.  J.,  Q.  B.  12 ;  61  L.  T.  661 ;  83  W.  R. 
136— D. 

Solicitor  of  High  Court  may  be  Sued  in.] — 
A  solicitor  of  the  High  Court  who  had  also  been 
admitted  a  solicitor  in  the  Mayor's  Court  was 
sued  in  the  latter  court :  —Held,  that  he  was  not 
entitled  to  have  the  action  removed  into  the 
High  Court  on  the  ground  of  the  privilege  of  a 
solicitor  of  the  High  Court  to  be  sued  in  that 
court  only.  Day  v.  Ward,  17  Q.  B.  D.  703 ;  65 
L.  J.,  Q.  B.  494  ;  65  L.  T.  618  ;  85  W.  R.  69— D. 


Amount  more   than  £50  — Discretion.]— A 

party  to  an  action  in  the  Mayor's  Court  is  not 
entitled  as  of  right  to  remove  the  action  by  writ 
of  certiorari  into  the  High  Court,  but  can  only 
do  so  by  leave  of  a  judge  of  the  High  Court  in  a 
case  where  it  shall  appear  to  him  that  the  action 
is  one  which  is  fit  to  be  tried  there.  Cherry  v. 
Endean,  65  L.  J.f  Q.  B.  292  ;  64  L.  T.  763 ;  31 
W.  B.  468— D. 

Action  "  fit  to  be  tried  "  in  Superior  Court] 
—Rule  12  of  the  Borough  and  Local  Courts 
of  Record  Act,  1872,  which  is  applicable  to 
the  Mayor's  Court,  provides  that  "no  action 
entered  in  the  court  shall,  before  judgment,  be 
removed  or  removable  from  the  court  into  any 
superior  court  by  any  writ  or  process,  except  by 
leave  of  a  judge  of  one  of  the  superior  courts  in 
cases  which  shall  appear  to  such  judge  fit  to  be 
tried  in  one  of  the  superior  courts,"  &c.  The 
plaintiff  brought  an  action  in  the  Mayor's 
Court  against  the  defendant,  a  stockbroker,  for 
alleged  misconduct  in  connexion  with  the  par- 
chase  of  certain  shares,  and  claimed  110*.  as 
damages : — Held,  that  the  action  was  one  which, 
was  "  fit  to  be  tried  "  in  the  superior  courts,  and 
that  the  defendant  was  accordingly  entitled  to  a 
writ  of  certiorari.  Simpson  v.  Shaw,  56  L.  J*r 
Q.  B.  92  ;  56  L.  T.  24— D. 

Time  for  lodging  Writ]— By  the  Mayor's 
Court  of  London  Procedure  Act,  1857,  a  17, 
"  No  cause  depending  in  the  Mayor's  Court  shall 
be  removed  before  judgment  therein  into  any 
superior  court,  unless  the  writ  removing  such 
cause  shall  have  been  lodged  with  the  proper 
officer  of  the  court  within  one  month  after  the 
service  of  the  plaint,  or  unless  such  writ  shall  have 
been  lodged  with  Buch  officer  before  such  action 
shall  have  been  entered  for  trial  according  to  the 
practice  of  the  Mayor's  Court " : — Held,  that  the 
section  gave  alternative  periods  for  lodging  the 
writ,  and  that  the  defendant  could  avail  himself 
of  whichever  was  the  longer  period.  PrmT. 
Smith,  20  Q.  B.  D.  643  ;  57  L.  J.,  Q.  B.  336 ;  58 
L.  T.  606  ;  36  W.  R.  630— C.  A. 

By  the  Borough  and  Local  Courts  of  Record 
Act,  1872,  schedule,  r.  12,  it  is  enacted  that  no 
action  shall  before  judgment  be  removed  into 
any  superior  court  except  by  leave  of  a  judge  of 
one  of  the  superior  courts  in  cases  which  shall  ap- 
pear to  such  judge  fit  to  be  tried  in  one  of  thesupe- 
rior  courts,  and  upon  such  terms  as  to  payment  of 
costs,  security  for  debt  and  coats,  or  such  other 
terms  as  such  judge  shall  think  fit : — Held,  that 
this  rule  does  not  override  a  17  of  the  Mayor's 
Court  of  London  Procedure  Act,  1857,  and  does 
not  substitute  the  discretion  of  a  judge  for  the 
strict  limit  of  time  imposed  in  that  section. 
Price  v.  Shaw,  59  L.  T.  480— D. 


3.  Appeal. 

To  High  Court— Claim  over  £90— Leave  tt 
Appeal.]  —  By  the  Mayor's  Court  of  London 
Procedure  Act,  1857,  a.  8,  an  appeal  from  the 
Mayor's  Court  to  the  superior  courts  is  given 
where  the  sum  sought  to  be  recovered  exceed* 
20/.,  and,  by  s.  9,  such  appeal  is  to  be  by  special 
case.  By  s.  10,  the  parties  in  any  case  in  the 
Mayor's  Court  may,  if  the  judge  grants  leave, 


1206 


MEDICINE   AND   MEDICAL   PRACTITIONER. 


1209 


more  in  the  superior  courts  to  set  aside  the 
verdict :— Held,  that  Ord.  UX.  r.  10,  which 
provides  that  all  appeals  from  inferior  courts 
■halt  he  by  notice  or  motion,  does  not  make  it 
necessary  where  the  sum  sought  to  be  recovered 
in  the  Mayor's  Court  exceeds  20Z.,  and  a  motion 
to  set  aside  the  verdict  and  judgment  on  the 
ground  of  misdirection  is  made  in  the  High 
Gout,  that  the  leave  of  the  judge  of  the  Mayor's 
Court  should  be  obtained.  Eder  v.  Levy,  19 
Q.  B.  D.  210 ;  66  L.  J.,  Q.  B.  650 -D. 


MEASURE. 

Wrights  and  Measures.]— &w  Weights  and 

MXASUBBS. 

to  Damages.]— See  Damages. 


MEAT. 


lab  of  Unsound  Meat.]— See  Health. 


MEDICINE  AND  MEDICAL 
PRACTITIONER. 

Dlsgal  Agreement — Serving  Unqualified  Por- 
ta as  Assistant.]— The  Act  55  Geo.  3,  c.  194, 
prohibiting  medical  practice  by  unqualified  per- 
ms, is  not  repealed  by  implication  by  the 
Medical  Act,  1858.  The  defendant,  a  duly 
qualified  medical  practitioner,  agreed  with  the 
plaintiff,  a  medical  practitioner  not  duly  quali- 
ned,  but  who  was  described  in  the  agreement  as 
"medical  practitioner,"  to  serve  the  plaintiff  as 
sisistant  in  his  profession  as  a  medical  prac- 
titioner, and  not  to  practice  at  R.  within  five 
yean  after  the  close  of  the  engagement.  The 
plaintiff  applied  for  an  injunction  to  prevent 
the  defendant  from  practising  at  B.  in  breach  of 
this  agreement : — Held,  by  Pearson,  J.,  that  the 
Medical  Act  of  1858  does  not  prohibit  unquali- 
fied persons  from  practising  medicine,  its  object 
being  only  to  enable  the  public  to  distinguish 
between  qualified  and  unqualified  practitioners 
—that  the  use,  by  an  unqualified  person  in  a 
private  agreement  with  another  medical  man,  of 
soy  of  the  titles  for  the  wilful  use  of  which  by 
an  unqualified  person  for  the  purpose  of  deceiv- 
ing the  public,  penalties  are  imposed  by  s.  40  of 
the  act,  is  not  an  offence  within  that  section — 
that  the  agreement  therefore  was  not  illegal, 
tod  that  the  plaintiff  could  enforce  its  terms, 
and  was  entitled  to  an  injunction.  The  defen- 
dant appealed,  and  on  appeal  showed  that  the 
plaintiff  had  given  various  certificates  of  cause 
of  death,  which  showed  that  the  plaintiff  had 
attended  the  deceased  persons  during  their  last 
Alness,  and  from  which  it  was  to  be  inferred 


that  he  attended  patients  in  the  way  in  which 
a  medical  practitioner  ordinarily  attends,  and  in 
fact  personally  acted  as  an  apothecary : — Held, 
that  his  doing  so  was  made  illegal  by  the  act 
55  Geo.  3,  c.  194,  s.  14,  that  the  agreement  there- 
fore was  to  assist  the  plaintiff  in  carrying  on  a 
business  which  he  could  not  lawfully  carry  on, 
and  that  the  agreement  was  illegal  and  could 
not  be  enforced.  Davie*  v.  Makuna,  29  Ch.  D. 
596  ;  54  L.  J.,  Ch.  1148  ;  53  L.  T.  314 ;  33  W.  B. 
668  ;  50  J.  P.  5— C.  A. 

Semble,  if  the  plaintiff  had  carried  on  his 
business  by  means  of  duly  qualified  assistants, 
without  personally  acting  as  a  physician,  sur- 
geon, or  apothecary,  the  agreement  might  have 
been  legal.    lb. 

Unregistered  Assistant— Bight  of  Registered 
Practitioner  to  recover  for  Services  of.] — A 
qualified  medical  practitioner,  duly  registered 
under  the  Medical  Act,  1858,  established  a  branch 
practice  under  the  management  of  his  brother, 
who  was  not  so  qualified  or  registered,  and  held 
no  apothecary's  certificate  under  55  Geo.  3,  c. 
194.  In  an  action  by  the  assignee  of  the  quali- 
fied practitioner  to  recover  charges  for  medical 
aid  and  advice  rendered,  and  the  costs  of 
medicines  supplied,  to  the  defendant  by  the 
brother  alone,  without  consulting  the  qualified 
practitioner  : — Held,  that  under  ss.  81  and  32  of 
the  Medical  Act,  1858,  the  plaintiff  was  not 
entitled  to  recover.  Hawartn,  v.  Brearley,  19 
Q.  B.  D.  308  ;  56  L.  J.,  Q.  B.  643  ;  66  L.  T.  743  ; 
86  W.  B.  802  ;  51  J.  P.  440— D. 

■ 

Sale  of  Drugs —Standard  Quality— British 
Pharmacopoeia.]— See  White  v.  By  water,  ante, 
col.  849. 

Agreement  not  to  carry  on  Business — Restraint 
of  Trade.] — See  Palmer  v.  Mallet  and  Rogers  v. 
Drvry,  ante,  cols.  487,  488. 

Dentist  —  Registration  of— Withdrawal  of 
Diploma.] — Where  a  person  has  been  registered 
under  the  Dentists  Act,  1878,  as  a  licentiate  of  a 
medical  authority,  the  fact  that  his  diploma  has 
since  been  revoked  by  such  medical  authority 
does  not  render  him  liable  to  be  erased  from  the 
dentists*  register  under  the  act.  Partridge,  Ike 
parte,  or  Reg.  v.  General  Medical  Council,  19 
Q.  B.  D.  467  ;  36  W.  B.  442— C.  A.  Afiirming 
66  L.  J.,  Q.  B.  609  ;  62  J.  P.  40— D. 


MERCHANDISE    MARES 

ACT. 

See  TRADE. 


MERCHANT    SHIPPING. 

See  SHIPPING. 


.  1207 


MERGEEr-METBOPOLIS. 


1208 


MERGER. 

Equitable  and  Legal  Estates.]— Where  an 
equitable  estate  in  fee  by  purchase  and  a  legal 
estate  in  fee  by  descent  meet  in  the  same  person, 
the  equitable  estate  will  merge  in  the  legal,  and 
the  descent  will  be  according  to  the  legal  title. 
Wood  v.  Douglas,  or  Douglas,  In  re,  Douglas 
v.  Wood,  28  Ch.  D.  327 ;  54  L.  J.,  Ch.  421  :  52 
L.  T.  131  ;  33  W.  R.  390— Pearson,  J. 

Semble,  where  a  person  takes  an  equitable 
estate  by  election,  and  a  legal  estate  by  descent, 
be  is  not  a  purchaser  within  the  act  3  &  4  Will.  4, 
c.106.    lb. 

Charge— Estate  for  Life  with  General  power 
of  Appointment.] — H.  S.,  by  his  marriage  settle- 
ment, assigned  a  sum  of  7,500Z.  to  trustees,  in 
trust  for  himself  for  life,  and  after  the  deaths  of 
both  in  trust  for  all  the  children  of  the  marriage, 
in  such  shares,  &c.,  as  H.  S.  should  by  deed  or 
will  appoint ;  and  he  charged  the  7,500Z.  on  an 
estate  to  which  he  was  absolutely  entitled. 
There  were  three  children  of  the  marriage, 
J.  O.  S.,  and  two  daughters.  H.  S.,  by  his  will, 
in  1851,  appointed  5,000/.  of  the  fund  to  J.  G.  S., 
and  devised  to  him  and  the  heirs  of  his  body  the 
lands  on  which  it  was  charged.  In  1858,  by 
codicil,  he  revoked  the  devise  of  the  lands  in 
the  will,  and  devised  them  to  J.  G.  8.  for  life, 
remainder  to  such  uses  as  J.  G.  S.  should  by 
deed  or  will  appoint.  In  1872  by  his  marriage 
settlement,  reciting  the  devises  of  the  lands  by 
the  will  and  codicil,  J.  G.  S.  in  exercise  of  his 
power  appointed  the  lands,  after  his  death,  to 
trustees  for  200  years,  to  secure  a  jointure  for 
his  wife,  remainder  in  strict  settlement  to  the 
sons  and  daughters  successively  of  the  intended 
or  any  subsequent  marriage,  with  an  ultimate 
remainder  to  himself  in  fee.  No  mention  or 
allusion  to  the  charge  of  5,0002.  was  made  in  the 
settlement : — Held,  that  there  was  no  merger  of 
the  charge,  and  that  the  5,0002.  continued 
personal  estate  of  J.  G.  8.  Smith  v.  Smith,  19 
L.  B.,  Ir.  514— M.  R. 

In  Judgment.] — See  Judgment. 

'   By  Leases.]— See  Dynevor  (Lord)  v.  Tennant, 
ante,  col.  1078. 


MERSEY. 

See  SHIPPING. 


METROPOLIS. 

I.  Vestet  and  Boabd  of  Works. 

1.  Vestries  and  Their  Officers,  1208. 

2.  Actions  and  Proceedings  against,  1209. 

3.  Jurisdiction. 

a.  Buildings,  1210. 

b.  Streets,  1212. 

c.  Sewers  and  Drainage,  1215. 

d.  Recovery  of  Expenses,  1218. 


II.  Rates. 

1.  In  General,  1221. 

2.  Valuation  Acts,  1221. 

III.  Trafalgar  Square,  1223. 

IV.  Stags  Carriages,  1223. 


I.  VESTRY  AND  BOARD  OF  WORKS. 

1.   VESTRIES  AND  THEIR  OFFICERS. 

Qualification  of  Member— Assessment  to  Poor 
Bate— Penalty.]— By  18  &  19  Vict  c  120  (Me- 
tropolis Local  Management  Act,  1855),  8. 6, "  the 
vestry  elected  under  this  act  in  any  parish  shall 
consist  of  persons  rated  or  assessed  to  the  relief 
of  the  poor  upon  a  rental  of  not  less  than  40J. 
per  annum ;  and  no  person  shall  be  capable  of 
acting  or  being  elected  as  one  of  such  vestry  for 
any  parish,  unless  he  be  the  occupier  of  a  house, 
lands,  tenements,  or  hereditaments  in  such  parish, 
and  be  rated  or  assessed  as  aforesaid  upon  such 
rental  as  aforesaid  within  such  parish  " : — Held, 
that  to  be  qualified  as  a  vestryman  under  the 
act,  a  person  must  be  the  occupier  of  real  pro- 
perty in  the  parish,  and  be  himself  rated  or 
assessed  in  respect  of  such  occupation  to  the 
required  amount  Mogg  v.  Clark,  16  Q.  B.  D. 
79  ;  55  L.  J.,  Q.  B.  69  ;  53  L.  T.  890 ;  34  W.  B. 
66  ;  50  J.  P.  342— C.  A. 


Member  "  interested  in  Contract  "—Acting  si 
Member — Penalty— Evidence — Minute-Book.  ]— 

The  brother  of  the  defendant  entered  into  a  con- 
tract with  a  vestry  constituted  under  the  Metro- 
polis Management  Act,  1855,  and  in  order  to 
enable  him  to  carry  it  out,  borrowed  money  from 
the  defendant,  who  by  way  of  security  took  an 
assignment  of  the  contract  Afterwards  the  de- 
fendant was  elected  a  member  of  the  vestry.  An 
action  for  penalties  having  been  brought  against 
the  defendant  for  acting  as  member  of  the  vestry, 
an  attendance-book  of  the  members  signed  by 
the  defendant  and  the  minute-book  of  the  vestry 
containing  his  name  as  a  member  in  attendance 
were  put  in  as  evidence  at  the  trial : — Held,  thai 
8.  54  of  the  Metropolis  Management  Act,  1856, 
applied  to  contracts  made  as  well  before  as  after 
the  election  of  a  member,  and  that  the  defendant 
was  "interested"  in  the  contract  in  question 
within  the  meaning  of  that  section  :  that  there 
was  evidence  under  s.  60  that  the  defendant  had 
acted  as  member  of  the  vestry ;  and  that  he  was 
liable  to  penalties  for  having  acted  after  he  had 
"  ceased  to  be  a  member.  Hunnings  v.  JRtftsst- 
son,  11  Q.  B.  D.  533  ;  52  L.  J.,  Q.  B.  416;  49 
L.  T.  361 ;  32  W.  R.  267  ;  48  J.  P.  135— C.  A. 


Superannuation  Allowance  to  Officer— Discre- 
tion as  to  Amount]— A  metropolitan  vestry  hat 
a  discretion  under  29  Vict  c.  81,  s.  1,  to  grant  or 
to  refuse  a  superannuation  allowance  to  a  retir- 
ing officer ;  but,  if  an  allowance  be  granted,  the 
vestry  has  no  discretion  as  to  the  amount,  which 
must  be  in  accordance  with  the  scale  prescribed 
in  s.  4.  Reg.  v.  St.  George's  Vestry,  19  Q.  B.  D. 
533  ;  56  L.  J.,  Q.  B.  652  ;  35  W.  R.  841 ;  62  J.  P. 
6— D. 


1209 


METROPOLIS—  Vestry  and  Board  of  Works. 


1210 


2.  ACTIONS    AND    PROCEEDINGS 
AGAINST. 

faulty— Acting  u  Vestr yman— Disqualifica- 
tion]—Sw?  supra. 

Compensation — Emoluments  of  Office.] — The 

Metropolitan  Bridges  Act,  1877,  provided  that 
compensation  should  be  paid  to  certain  officers, 
including  clerks,  but  not  including  solicitors, 
of  the  private  companies  or  corporations  whose 
bridges  were  taken  over  by  the  Metropolitan 
Board  of  Works  under  the  act,  upon  a  scale  to 
be  calculated  on  the  basis  of  the  emoluments 
actually  received  by  them  in  the  two  years  pre- 
vious to  the  passing  of  the  act.  The  Deptford 
Creek  Bridge  was  token  over  by  the  board,  and 
thereby  the  plaintiff,  who  had  been  clerk  to  the 
Deptford  Creek  Bridge  Company,  lost  his  office. 
He  had  received  a  salary  as  clerk,  and  also  pay- 
ments for  legal  business  done  by  him  as  solicitor 
for  the  company,  and  commission  on  the  rents  of 
the  company's  property  which  he  received.  The 
Deptford  Creek  Bridge  Company  had  by  their 
set  power  to  appoint  a  solicitor  and  receiver  as 
well  as  a  clerk  ;  they  had  never  appointed  such 
officers,  and  the  legal  business  of  the  company 
had  always  been  done  and  the  rents  received  by 
the  clerk,  who  had  always  been  a  solicitor  : — 
Held,  that,  by  the  practice  of  the  company,  these 
duties  had  been  attached  to  the  office  of  clerk, 
and  that  the  plaintiff  was  entitled  to  compensa- 
tion in  respect  of  the  payments  received  for  dis- 
charging them  as  part  of  the  emoluments  of  his 
office ;  but,  as  to  the  payments  for  legal  business 
done  by  him,  only  in  respect  of  his  proportion  as 
partner  in  the  firm  of  solicitors  of  the  net  profits 
after  deducting  all  office  expenses  necessarily 
incurred  in  earning  the  money.  Drew  v.  Metro- 
politan  Board  of  Works,  50  L.  T.  138— C.  A. 

Held,  also,  that  the  board  were  not  entitled  to 
have  the  bills  of  costs  taxed  before  the  amount 
of  compensation  was  assessed,  as  the  bills  had 
been  paid  by  the  company  without  taxation. 
lb. 

Liability  of  Vestry  for  breaking  Gas-Pipes  laid 
»  Bead — Repairing  Bead — Steam  Boiler.]  — 
The  plaintiffs,  a  gas  company,  having  statutory 
powers  to  place  mains  and  pipes  under  the  high- 
ways, and  a  statutory  obligation  to  supply  gas 
within  the  parish  of  K.,  laid,  prior  to  1872,  cer- 
tain pipes  under  certain  highways  within  the 
e diction  of  the  defendants,  who,  being  the 
way  authority  for  the  district,  were,  by 
▼trtue  of  10  Vict  c.  34, 18  k  19  Vict.  c.  120,  and 
*  Jc  26  Vict  c.  102,  bound  to  repair  the  high- 
ways,  and  empowered  to  pave  and  alter  the 
feiel  of  streets  under  their  management.  In 
1372  the  defendants  began  to  use  steam  rollers 
of  considerable  weight  for  the  purpose  of  repair- 
ing the  highways,  and  thereby  fractured  certain 
E  belonging  to  the  plaintiffs  laid  under  the 
rays: — Held,  that  the  plaintiffs  were  on- 
to an  injunction  restraining  the  defendants 
from  using  any  steam  rollers  in  such  a  way  as  to 
fmetore  or  damage  any  pipes  belonging  to  the 
plaintiffs  which  were  properly  laid  under  the 
highways  within  the  jurisdiction  of  the  defen- 
dants. Qas  Light  and  Coke  Company  v.  St. 
Mary  Abbott's  Vestry,  15  Q.  B.  D.  1 ;  54  L.  J., 
Q.B.414;  53L.T.457;  33  W.  R.  892  ;  49  J.  P. 
419— a  A.    Affirming  1  C.  St  S.  868— Field,  J. 


Hoties  of  Action.]— Per  North,  J.  Section  106 
of  the  Metropolis  Local  Management  Acts  Amend- 
ment Act,  1862,  which  requires  that  before  any 
proceeding  is  instituted  against  a  district  board 
a  month's  notice  shall  be  served  on  them  by  the 
person  intending  to  take  the  proceeding,  does  not 
apply  to  actions  in  equity : — Per  Lopes,  L  J. 
(Cotton  and  Lindley,  L.JJ.,  not  dissenting),  that 
that  section  does  not  apply  to  an  action  for  an 
injunction  to  restrain  a  nuisance.  Bateman  v. 
Poplar  Board  of  Work*,  33  Ch.  D.  360 ;  66 
L.  J.,  Ch.  149  ;  55  L.  T.  374. 

liability  of  Distriet  Board— Vesting  of  Sowers 
— Nuisance.] — See  Bateman  v.  Poplar  Board  of 
Works,  post,  col.  1216. 


3.  JURISDICTION. 

a.  Building*. 

General  Line — Old  Buildings.] — The  appel- 
lants' house  was  built  at  the  corner  of  the  EL 
Road  and  a  new  street  called  D.  Gardens.  The 
side  of  the  house  abutting  on  the  eastern  side  of 
D.  Gardens  projected  beyond  a  row  of  houses  on 
that  side  of  D.  Gardens.  Under  s.  75  of  the 
Metropolis  Management  Amendment  Act,  1862 
(25  &  26  Vict.  c.  102),  the  superintending  archi- 
tect to  the  Metropolitan  Board  of  Works  gave  a 
certificate  that  the  main  fronts  of  that  row  of 
houses  was  the  general  line  of  buildings,  on  the 
eastern  side  of  D.  Gardens,  but  did  not  decide 
that  that  was  the  general  line  of  buildings,  either 
of  the  row  of  houses  or  of  the  street  in  which 
the  appellants'  house  was  situate : — Held,  that 
no  offence  under  s.  75  had  been  committed  by 
the  building  of  the  appellants1  house,  and  that 
there  was  no  jurisdiction  for  a  magistrate's  order 
under  that  section  directing  the  demolition  of 
the  projecting  part  of  the  house.  Barlow  v. 
St.  Mary  Abbott's  Vestry,  11  App.  Cas.  257  ;  66 
L.  J.,  Ch.  680 ;  55  L.  T.  221  ;  34  W.  R.  621  ;  50 
J.  P.  691— H.  L.  (B.). 

Jurisdiction  of  Magistrate— Architect's 

Decision.] — The  certificate  of  the  superintending 
architect  of  the  Metropolitan  Board  of  Works 
made  under  the  Metropolis  Management  Amend- 
ment Act,  1862  (25  &  26  Vict  c.  102),  s.  75,  and 
fixing  the  "  general  line  of  buildings  "  in  a  road, 
is  conclusive  as  to  a  building  erected  before  the 
certificate  is  made ;  and  on  the  hearing  of  a 
summons  (issued  after  the  making  of  the  certi- 
ficate) for  an  offence  under  s.  75  alleged  to  have 
been  committed  in  respect  of  such  building,  the 
justice  has  no  jurisdiction  to  review  the  archi- 
tect's decision  or  decide  for  himself  whether  the 
line  fixed  by  the  certificate  is  the  true  general 
line.  Simpson  v.  Smith  (6  L.  R.,  C.  P.  87)  over- 
ruled. Spackman  v.  Plumstead  Board  of  Works, 
10  App.  Cas.  229 ;  54  L.  J.,  M.  C.  81 ;  63  L.  T. 
157  ;  33  W.  R.  661  ;  49  J.  P.  420— H.  L.  (B.). 

Service  of  "  Order  in  Writing  made  oa " 
Builder.] — A  magistrate  made  a  verbal  order 
under  a.  75  directing  the  builder  to  demolish 
part  of  a  house  within  eight  weeks.  The  builder 
was  present  when  the  order  was  made,  but  it 
was  not  reduced  into  writing  till  the  day  when 
the  eight  weeks  expired ;  after  that  day  a  copy 
was  served  upon  him  or  came  to  his  knowledge  : 


1211 


METROPOLIS— Vestry  and  Board  of  Works. 


1212 


—Held,  that  the  order  was  not  "an  order  in 
-writing  made  on  "  the  builder  within  the  mean- 
ing of  s.  76,  and  was  therefore  invalid.  Barlow 
v.  St.  Mary  Abbott's  Vestry,  supra. 

11  Public  Building  "  —  Ambulance  Station- 
Deposit  of  Flans.] — An  ambulance  station  struc- 
turally disconnected  with  any  building,  and 
from  which  the  public  is  rigorously  excluded,  is 
not  of  itself  a  public  building  within  s.  8  of  the 
Metropolitan  Building  Act,  1855,  so  as  to 
require  the  builder  to  deposit  plans  and  sections 
of  the  building  with  the  notice  of  its  erection 
to  the  district  surveyor  under  bye-law  5,  made 
under  s.  16  of  the  Metropolitan  Management 
and  Building  Acts  (Amendment  Act),  1878. 
Josolyne  v.  Meeson,  53  L.  T.  319  ;  49  J.  P.  805— D. 

Temporary  Structure— Continuous  Offence.] — 

— Where  a  temporary  structure  had  been  erected 
within  the  metropolitan  district  without  the 
licence  of  the  Metropolitan  Board  of  Works, 
but  no  complaint  of  such  erection  was  made 
until  after  the  expiration  of  six  months  from  its 
^completion  : — Held,  that  the  offence  was  a  con- 
tinuous one  as  long  as  the  structure  remained 
existent,  and  that  proceedings  for  the  recovery 
of  the  penalties  might  be  taken  within  six 
months  of  the  time  within  which  it  continued 
to  exist.  Metropolitan  Board  of  Works  v. 
Anthony,  54  L.  J.,  M.  C.  39  ;  33  W.  R.  166  ;  49 
J.  P.  229— D. 

Bye-Law — Removal  of  Animal  Hatter  from 
44 Bite"    underneath    Foundations.]  —  By  the 

Metropolis  Management  and  Building  Acts 
Amendment  Act,  1878,  s.  16,  the  Metropolitan 
Board  of  Works  were  empowered  to  make  bye- 
laws  with  respect  to  "  the  foundations  of  houses, 
buildings,  ana  other  erections,  and  the  sites  of 
houses,  buildings,  and  other  erections  to  be  con- 
structed after  the  passing  of  this  act,  and  the  mode 
in  which  and  the  materials  with  which  such  foun- 
dations and  sites  shall  be  made,  formed,  exca- 
vated, filled  up,  prepared,  and  completed  for 
securing  stability,  the  prevention  of  fires,  and  for 
purposes  of  health.'*  By  a  14  the  term  "  site  "  is 
•defined  to  mean  "  the  whole  space  to  be  occupied 
by  such  house,  building,  or  other  erection  between 
the  level  of  the  bottom  of  the  foundations  and 
the  level  of  the  base  of  the  walls."  The  Metro- 
politan Board  of  Works  made  the  following  bye- 
law  :  "  No  house,  building,  or  other  erection 
shall  be  erected  upon  any  site  or  portion  of  any 
site  which  shall  have  been  filled  up  or  covered 
with  any  material  impregnated  or  mixed  with 
any  faecal,  animal,  or  vegetable  matter,  or  which 
shall  have  been  filled  up  or  covered  with  dust, 
or  slop,  or  other  refuse,  or  in  or  upon  which  any 
such  matter  or  refuse  shall  have  been  deposited, 
unless  and  until  such  matter  or  refuse  shall  have 
been  properly  removed  by  excavations  or  other- 
wise from  such  site  "  : — Held,  that  the  meaning 
of  the  word  '*  site  "  in  the  bye-law  was  governed 
by  the  interpretation  of  that  word  in  the  act,  so 
that  the  bye-law  did  not  authorize  the  Metro- 
politan Board  of  Works  to  direct  the  removal  of 
faecal,  animal  or  vegetable  matter  in  the  soil 
below  the  level  of  die  bottom  of  the  founda- 
tions. Blashill  v.  Chambers,  14  Q.  B.  D.  479 ; 
63  L.  T.  38  ;  49  J.  P.  388— D. 

Hew  Building— Summons  to  leave  sufficient 
open   Space — Limitation  of  Time.] — G.,  the 


builder  of  a  new  house  in  the  metropolis,  on  1st 
April  sent  notice  to  B.,  the  district  surveyor, 
with  plans.  On  4th  August,  B.  served  a  48  boon' 
notice  on  G.  to  amend  the  work  and  have  suffi- 
cient area  space  pursuant  to  45  Vict.  c.  14,  a.  14. 
The  house  was  then  covered  in,  and  nothing  was 
done  under  the  notice.  On  1st  February  follow- 
ing, information  of  an  offence  was  laid  by  B.  :— 
Held,  that  the  offence  was  the  refusal  to  do  the 
work  ordered  on  4th  August,  and  the  informa- 
tion was  within  the  six  months'  limitation. 
Bovill  v.  Oibbs,  61  J.  P.  485— D. 

Artisans'  Dwellings— Obstruction  of  Light- 
Right  to  Compensation.]—^  Wigram  v.  Fryer, 
ante,  col.  1121. 

Party  Structure  —  Damage  —  Liability  of 
Builder.] — The  plaintiff,  an  owner  in  fee  simple 
of  a  house  in  London,  brought  an  action  against 
builders  claiming  damages  on  the  ground  that 
they,  in  the  course  of  rebuilding  an  hotel,  had 
caused  injury  to  the  plaintiffs  house  by  cracking 
and  displacing  the  wall,  and  also  asking  for  an 
injunction.  On  the  motion  for  injunction  an 
inquiry  as  to  damage  was  directed  to  be  taken 
before  a  special  referee,  and  the  referee  assessed 
the  structural  damage  at  402.,  without  prejudice 
to  any  question  of  liability.  The  defendants  in 
their  defence  raised  the  contention  that  the  works 
were  executed  under  the  provisions  of  the  Metro- 
politan Building  Act,  and  that  the  damage  Qt 
any)  to  the  plaintiff's  premises  was  "  a  necessary 
consequence  of  carrying  out  the  said  works," 
and  that  the  plaintiff's  remedy  (if  any)  was  only 
against  the  building  owner  by  whom  the  defen- 
dants were  employed : — Held,  that  the  Metro- 
politan Building  Act  did  not  exonerate  a  builder 
from  liability  for  damage  which  had  arisen  from 
his  negligence  and  want  of  care  and  skill.  The 
maxim  "  Respondeat  superior  *'  does  not  absolve 
the  inferior,  if  by  his  negligence  a  loss  has  been 
sustained.  If,  in  doing  the  act,  he  is  guilty  of 
negligence  whereby  loss  and  damage  are  occa- 
sioned to  another,  he  is  personally  liable.  Whits 
v.  Peto,  68  L.  T.  710— Kay,  J. 


b.  Streets. 

Hew  Street  is  a  «  Street1 ']— As  St.  John's, 
Hampstead  v.  Hoopel,  post,  col.  1217,  and  St. 
Johns,  Hampstead  v.  Cotton,  poet,  col.  1220. 

laying  out  Hew  8treet—  Hotioe  to  District 
Surveyor— Complaint  more  than  Six  Mental 
after.] — L.  was  summoned  by  the  Metropolitan 
Board  of  Works  for  laying  out  a  new  street 
of  less  than  the  required  width,  contrary  to 
26  &  26  Vict.  c.  102,  s.  98.  L.  gave  notice  of 
his  intended  building  in  May,  1883,  to  the  dis- 
trict surveyor,  and  paid  his  fees,  but  no  notice 
was  given  by  the  surveyor  to  the  board  till 
November,  1883.  The  complaint  was  made  in 
March,  1884  :— Held,  that  notice  to  the  district 
surveyor  was  the  date  of  the  discovery  by  the 
board,  and,  therefore,  the  complaint  was  too  late, 
being  more  than  six  months  after  the  discovery, 
and  so  contrary  to  25  &  26  Vict.  c.  102,  a  107. 
Metropolitan  Board  of  Works  v.  Lot  key,  49 
J.  P.  245— D. 

"For  Foot  Traffic  only."]— Artisans' 

dwellings,  comprising  twenty-six  tenements,  ac- 


1213 


METROPOLIS— Vettry  and  Board  of  Works. 


1214 


commodating  about  250  persons!  were  built, 
opening  on  an  approach  100  ft.  long  and  16  ft. 
wide,  entered  from  a  public  street  through  a 
gateway  10  ft.  wide,  over  which  one  of  the 
buildings  was  carried.  A  roadway  had  previously 
existed  on  the  site  with  warehouses  abutting 
thereon,  and  the  gateway  included  the  site  of  a 
former  gateway,  which  had  been  pulled  down 
and  altered  to  a  greater  width.  The  approach 
did  not  afford  communication  with  any  other 
public  street,  and  was  for  the  sole  use  and  con- 
Tenience  of  the  tenants  of  the  dwellings,  to  the 
exclusion  of  the  public,  no  right  of  way  over  the 
same  having  ever  been  dedicated  to  or  used  by 
the  public  at  large  : — Held,  that  the  approach 
had  not  been  laid  out  as  "  a  street  for  foot  traffic 
only  "  within  the  meaning  of  the  8th  section  of 
the  Metropolis  Management  and  Building  Acts 
(Amendment)  Act,  1882  (45  Vict.  c.  14),  so  as  to 
require  the  sanction  of  the  Metropolitan  Board 
of  Works  to  the  laying  out  thereof.  Metropolitan 
Board  of  Works  v.  Nathan,  54  L.  T.  423  ;  34 
W.  B.  164 ;  60  J.  P.  502— D. 

"Street"  —  Meaning  of— Compelling  State- 
aunt  of  Case.] — TheG.  road  was  a  lane  340  feet 
long ;  there  were  no  buildings  on  either  side  of 
it,  except  four  houses  at  one  part  of  it,  and  the 
lane  was  bounded  on  the  north  and  south  by 
back  gardens  and  the  backs  and  sides  of  houses. 
In  proceedings  taken  by  the  Fulham  Board  of 
Works  for  the  paving  of  the  lane  as  a  "new 
street"  within  the  meaning  of  the  Metropolis 
Management  Acts,  the  magistrate  held  that  the 
lane  was  not  a  "  street,"  and  refused  to  state  a 
case,  as  he  considered  the  question  one  of  fact : 
—Held,  that  the  question  whether  the  lane  was 
a  "  street "  or  not,  was  a  question  of  fact,  and 
not  of  law,  and  that  the  magistrate  could  not  be 
compelled  to  state  a  case.  Reg.  v.  Shell,  50 
L.  T.  590  ;  49  J.  P.  68— D. 

Widening— Power  of  Commissioners  to  take 
land,  j — Two  houses  adjoining  Wood  Street,  in 
the  city  of  London,  having  been  destroyed  by 
tre,  the  outer  walls  being  left  standing,  the 
Commissioners  of  Sewers  adjudicated  that  it  was 
desirable  to  widen  Wood  Street,  and  that  the 
two  houses,  and  the  land  on  which  they  stood, 
projected  into  and  prevented  them  from  widen- 
ing the  street,  and  that  the  possession  and  pur- 
chase of  those  houses  was  necessary  for  that 
purpose,  and  they  directed  their  solicitor  to 
treat  for  the  purchase.  Notice  to  treat  was 
accordingly  given  for  the  whole  of  the  bouses. 
The  owners  brought  their  action  for  an  injunc- 
tion to  restrain  the  commissioners  from  proceed- 
ing on  this  notice.  It  was  admitted  by  the 
commissioners  that  they  only  meant  to  use  a 
strip  of  51  feet  in  breadth  for  widening  the 
street,  and  intended  to  sell  the  rest  without 
giving  the  plaintiffs  any  option  of  pre-emption  : 
—Held,  that  the  plaintiffs  were  entitled  to  an 
injunction,  for  that  the  adjudication  was  ultra 
vires,  the  commissioners  having  no  power  to 
adjudicate  that  the  possession  of  the  whole  of 
the  piece  of  land  is  necessary  for  the  purpose  of 
improvements  when  they  only  intend  to  use  a 
small  part  of  it  for  that  purpose,  thongh  if  they 
made  such  an  adjudication  in  the  belief  that 
they  should  require  the  whole  for  the  improve- 
ments, the  correctness  of  the  adjudication  could 
not  be  questioned.     Oard  v.  Commissioner*  of 


Sewers,  28  Ch.  D.  486  ;  54  L.  J.,  Ch.  698  ;  52 
L.  T.  827— C.  A. 

Severance.] — If  part  of  a  piece  of  land  pre- 
vents an  improvement,  the  commissioners  have 
power  to  take  part  compulsorily,  their  power  of 
proceeding  compulsorily  not  being  limited  to 
taking  the  whole.  Whether  the  commissioners, 
if  they  only  want  a  part  of  the  site  of  an  exist- 
ing house  for  the  purpose  of  an  improvement, 
can  adjudicate  that  the  possession  and  purchase 
of  the  whole  house  are  necessary,  quaere.    lb. 

A  metropolitan  vestry  required,  for  the  pur- 
pose of  widening  a  street,  a  part  of  the  buildings 
and  site  of  an  orphanage  that  would  leave  a 
substantial  portion  of  the  premises  : — Held,  that 
(the  owners  wishing  to  sell  the  part  required 
only)  the  vestry  could  not  take  the  whole. 
Teuliere  v.  St.  Mary  Abbott's  Vestry,  30  Ch.  D, 
642  ;  55  L.  J.,  Ch.  28  ;  63  L.  T.  422  ;  50  J.  P.  53 
— Pearson,  J. 

Bight  of  Pre-emption.] — Semble,  that  the 
right  of  pre-emption  given  by  67  Geo.  3, 
c.  xxix.,  s.  96,  is  not  taken  away  by  the  City 
of  London  Sewers  Act,  1851  (14  &  15  Vict, 
c.  xci.),  s.  54.  Oard  v.  Commissioners  of  Sewers, 
supra— Per  Kay,  J. 

Improvements — Failure  to  earry  oat — Ex- 
piration of  Time — Penalties.] — By  a  local  act 
certain  persons  were  nominated  directors  of  a 
company  to  establish  a  certain  public  market, 
for  which  purpose  the  company  had  compulsory 
powers  to  take  the  land  needed  for  the  market, 
such  powers  to  expire  within  three  years  of  the 
passing  of  the  act.  It  was  also  provided  that 
certain  streets  in  the  immediate  neighbourhood 
of  the  market,  acting  as  approaches  to  the  same, 
should  be  widened  within  a  stated  period  under 
certain  penalties,  for  which  purpose  of  widening 
the  company  might  acquire  land  by  agreement 
with  the  owners  of  the  adjoining  property,  but 
not  by  compulsion.  The  company  never  had 
any  real  existence,  and  the  whole  scheme  proved 
abortive.  The  time  within  which  the  company 
could  exercise  its  compulsory  powers  had  ex- 
pired : — Held,  that  the  company  having  failed 
to  widen  the  aforesaid  streets,  the  vestry  was 
entitled  to  the  penalties  under  the  statute.  St. 
Mary,  Newington  v.  South  London  Fish  Market 
Company,  52  J.  P.  292 — Cave,  J. 

Property  in— Overhead  Wires.] — By  the  Me- 
tropolis Management  Act,  1855,  s.  96,  "all 
streets,  being  highways,  shall  vest  in  and  be  under 
the  management  and  control  of  the  vestry  or  dis- 
trict board  of  the  parish  or  district  in  which  such 
highways  are  situate."  Defendants,  a  telephone 
company,  fixed  a  telephone  wire  to  a  chimney, 
and  stretched  it  across  a  street,  which  was  vested 
in  plaintiffs  as  the  district  board,  at  a  height  of 
about  thirty  feet  from  the  ground.  Plaintiffs 
brought  an  action  for  an  injunction  to  restrain 
defendants  from  keeping  up  the  wire  : — Held, 
that  what  was  vested  in  plaintiffs  was  the  pro- 
perty in  the  surface  of  the  ground,  together  with 
as  much  space,  both  above  and  below  the  surface, 
as  amounted  to  the  area  of  ordinary  user  ;  and 
that  as  the  wire  in  question  was  above  this  area, 
and  was  not  shown  to  be  dangerous,  so  as  to 
amount  to  a  nuisance,  plaintiffs  were  not  entitled 
to  an  injunction  : — Held,  also,  that  defendants 
did  not  require  plaintiffs'  consent  under  26  &  27 


1215 


METROPOLIS—  Vestry  and  Board  of  Works. 


1216 


Vict.  c.  112,  a.  12,  to  entitle  them  to  place  the 
wire  across  the  6treet.  Wandsworth  Board  of 
Works  v.  United  Telephone  Company,  13  Q.  B.  D. 
904  ;  53  L.  J.,  Q.  B.  449  ;  51  L.  T.  148 ;  32  W.  R. 
776  ;  48  J.  P.  676— C.  A. 

Regulation  of—  Nuisance.]— The  statute  25  & 
26  Vict  c.  102,  s.  73,  extends  to  the  metropolis 
the  powers  of  improving  and  regulating  streets, 
and  for  suppressing  nuisances,  contained  in  57 
Geo.  3,  c.  29.  S.  kept  a  barrow  of  chestnuts 
several  hours  standing  in  a  street  in  the  F.  dis- 
trict, which  was  outside  the  area  of  the  Metro* 
politan  Traffic  Act,  30  fc  31  Vict.  c.  135,  but 
within  the  metropolis,  and  an  officer  of  the  local 
board  desired  him  to  remove,  but  he  refused  : — 
Held,  that  S.  was  liable  to  be  convicted  of  an 
offence  contrary  to  57  Geo.  3,  c.  29,  s.  65.  FuU 
ham  Board  of  Works  v.  Smith,  48  J.  P.  375— D. 

Obstruction — Power  of  Police  te  Prosecute.] 
— A  person,  by  singing  hymns,  occasioned  a  crowd 
to  assemble,  and  thereby  obstructed  a  certain 
highway  within  the  metropolitan  police  district. 
An  information  was  accordingly  preferred 
against  him  by  an  inspector  of  police,  under  s. 
72  of  the  Highway  Act : — Held,  that  the  pro- 
visions of  s.  72  of  the  Highway  Act  were  ap- 
plicable to  highways  within  the  metropolitan 
area: — Held,  also,  that  a  prosecution  under  s. 
72  of  the  act  might  be  initiated  by  anyone,  and 
therefore  that  the  proceedings  taken  by  the 
police  were  valid.  Back  v.  Holme*,  57  L.  J.,  M. 
C.  37  ;  56  L.  T.  713  ;  61  J.  P.  693  ;  16  Cox,  C.  C. 
263— D. 

Street  Lamp  —  Accidental  Damage  to  — 
Liability  of  Master.] — A  master  is  not  liable 
under  s.  207  of  the  Metropolis  Local  Manage- 
ment Act,  for  the  accidental  breaking  by  his 
servant  of  a  street  lamp,  the  top  of  which  pro- 
jected over  the  kerb,  such  accident  having  been 
caused  by  some  goods  on  a  van  which  the 
servant  was  driving  coming  in  contact  with  and 
breaking  the  top  of  the  lamp.  Harding  v. 
Barker,  37  W.  B.  78 ;  63  J.  P.  308— D. 

Power  of  District  Board  to  erect  Posts — 
Interference  with  Market]— A  district  board  of 
works,  under  the  statutory  powers  conferred  by 
57  Geo.  3,  c.  29,  s.  58,  and  18  &  19  Vict  c.  120, 
s.  108,  threatened  to  erect  poets  by  the  side  of 
public  footpaths  along  the  public  roads  leading 
into  the  area  of  Spitalfields  Market,  in  order  to 
preserve  the  rights  of  the  public  and  to  insure 
the  safety  of  foot-passengers.  It  was  proved 
that  this  would  seriously  interfere  with  the 
access  to  the  market,  which  had  been  recently 
enlarged  by  throwing  into  it  the  site  of  houses 
which  had  been  pulled  down  belonging  to  the 
plaintiff: — Held,  that  such  an  exercise  of  the 
board's  powers  would  be  an  interference  with 
the  "  rights  and  privileges  vested  in  the  plaintiff 
in  reference  to  a  market "  within  the  exception 
contained  in  18  &  19  Vict.  c.  120,  s.  91,  and  an 
injunction  was  granted  restraining  the  proposed 
action  of  the  board.  Horner  v.  Whiteckapel 
Board  of  Works,  56  L.  J.,  Ch.  289 ;  53  L.  T. 
842— C.  A. 

c.    Sewers  and  Drainage. 

Vesting  of  Sewers  in  District  Board — Con- 
nexion  with  Drain  illegally  made— Liability 


of  Board.]— The  duty  imposed  by  s.  72  of  the 
Metropolis  Local  Management  Act,  1855,  on  a 
district  board,  to  keep  the  sewers  which  are  by 
the  act  vested  in  them  so  as  not  to  be  a  nuisance, 
is  not  an  absolute  duty,  but  only  a  duty  to  use 
all  reasonable  care  and  diligence  to  keep  the 
sewers  in  a  proper  condition.  If,  therefore,  a 
drain  which  was  originally  a  private  drain, 
has,  by  reason  of  another  drain  being  con- 
nected with  it,  become  a  "  sewer,"  and  therefore 
by  the  act  vested  in  the  district  board,  the  board 
will  not  be  liable  for  a  nuisance  caused  by  the 
drain,  if  it  is  shewn  that  the  connexion  was 
made  illegally  without  the  knowledge  of  the 
board,  and  that  before  action  brought  they  did 
not  know,  and  could  not  by  the  exercise  of 
reasonable  care  have  discovered,  that  the  drain 
was  a  "sewer."  Hammond  v.  St.  Panoras  (9 
L.  R.,  C.  P.  316)  followed.  Bateman  v.  Poplir 
Board  of  Works,  37  Ch.  D.  272;  57  L.  J., 
Ch.  679;  68  L.  T.  720;  36  W.  R.  501— 
North,  J. 


by  "Combined  Operation."] —The 
owner  of  a  plot  of  ground  within  the  metro- 
politan district  on  which  he  was  about  to  build 
fifteen  contiguous  houses,  sent  to  the  local 
board  notice  of  his  intention  to  lay  down  upon 
it  a  pipe  drain  running  parallel  to  the  booses, 
through  which  the  houses  would  be  drained  into 
the  main  sewer  belonging  to  the  Metropolitan 
Board.  The  local  board  signed  their  approval 
of  the  scheme  by  letter,  and  entered  their 
approval  in  their  books,  but  made  no  formal 
order.  The  owner  completed  the  drain :— Held, 
by  North,  J.,  that  s.  74  of  the  Metropolis  Local 
Management  Act,  1855,  which  enables  a  district 
board  to  order  a  group  or  block  of  contiguous 
houses  to  be  drained  by  a  "  combined  operation," 
is  supplemental  to  s.  73,  and  like  that  section 
applies  only  to  existing  houses ;  that  the  local 
board  had  therefore  no  power  to  make  an  order 
for  draining  by  a  "  combined  operation  "  a  set  of 
houses  in  course  of  erection,  and  that  if  they 
had,  their  approval  of  a  scheme  proposed  by  the 
owner  did  not  amount  to  an  order;  that  the 
drain  in  question  was  therefore  not  a  "  drain  for 
draining  any  group  or  block  of  houses  by  a  com- 
bined  operation  under  the  order  of  any  vestry  or 
district  board/'  and  was  a  "sewer"  and  not  a 
"  drain  "  within  the  meaning  of  s.  260,  and  by 
virtue  of  8.  68  vested  in  the  local  board  : — Held, 
on  appeal,  by  Cotton  and  Lindley,  L.JJ.  (dis- 
sentient* Lopes,  LJ.),  that  although  s.  74  did 
not  give  the  board  power  to  order  drainage  by  a 
combined  operation  except  in  the  case  of  existing 
houses,  the  general  words  of  a.  76  gave  them  this 
power  in  the  case  of  houses  about  to  be  built ; 
that  their  approval  of  the  scheme  was  an  order, 
and  that  the  drain  in  question  was  therefore  a 
"  drain  "  and  not  a  "  sewer  "  within  the  meaning 
of  s.  250,  and  did  not  vest  in  the  local  board. 
Bateman  v.  Poplar  Board  of  Works,  33 
Ch.  D.  360 ;  56  L.  J.,  Ch.  149 ;  55  L.  T.  374- 
C.  A. 

Notice  to  Repair  by  Inspector  —  Proof  of 
Authority  —  Recovery  of  RTpenses,  ] — A.,  the 
sanitary  inspector  of  8.,  a  metropolitan  pariah, 
gave  a  notice  in  his  own  name  as  inspector  to 
&.,  an  owner  of  a  house,  to  reconstruct  drains, 
&c,  in  three  dayB,  and  afterwards,  on  default, 
A.  did  the  work,  and  the  8.  vestry  took  oat  a 
summons  against  H.  to  recover  the  expenditure. 


1217 


METROPOLIS— Vestry  and  Board  of  Works. 


1218 


No  resolution  of  the  vestry,  or  of  any  committee 
thereof  to  give  the  notice  was  proved,  bat  only 
i  meeting  of  three  members  of  a  sub-committee, 
who  were  proved  to  have  met  and  resolved  that 
the  inspector  should  enter  and  execute  the  works 
himself :— Held,  that  the  notice  given  by  the 
inspector  was  bad,  and  the  statute  not  being 
complied  with,  the  summons  against  H.  was 
properly  dismissed.  St.  Leonard'*  Vestry  v. 
Holmes,  50  J.  P.  132— D. 

Connecting  Houses  with — Bight  of  Vestry 
to  do  Work.]  —  A  builder  made  drains  from 
certain  houses  in  a  road  to  the  boundary  of  the 
forecourts  of  the  houses.  The  road  was  what  is 
known  as  a  builder's  road,  made  and  coated  with 
gravel  and  ballasted.  The  footpaths  were  made 
with  gravel  and  kerbed  witn  granite.  The 
booses  on  either  side  of  the  road  were  not  com- 
pleted and  inhabited,  but  the  road  was  open  for 
carriages  and  foot-passengers.  It  was  lighted  by 
the  parish,  but  had  not  been  taken  to  as  a  public 
road  The  vestry  made  branches  from  the 
drains  into  a  sewer  which  belonged  to  them  and 
an  along  the  centre  of  the  road,  and  for  that 
pomose  they  opened  the  road  and  footway.  The 
Wider  declined  to  repay  to  the  vestry  the  ex- 
penses incurred  thereby: — Held  (1),  that  the 
road  was  not  the  less  a  street  within  the  defini- 
tion in  a.  260  of  the  Metropolis  Management 
Act,  1866,  and  s.  112  of  the  Metropolis  Manage- 
ment Act,  1862,  because  it  came  within  the 
definition  of  a  new  street  in  the  last-mentioned 
•action;  (2),  that  s.  78  of  the  Metropolis 
Management  Act,  1855,  which  authorises  the 
opening  of  the  pavement  of  any  street  for  the 
purpose  of  branching  private  drains  into  a 
•ewer,  applies  equally  to  streets  and  to  new 
streets ;  (3),  that,  looking  to  the  definition  of 
the  word  "  pave  "  in  s.  112  of  the  Metropolis 
Management  Act,  1862,  the  road  was  paved  : — 
That,  consequently,  the  vestry  had  opened  a 
put  of  the  pavement  of  a  street,  and  were  en- 
titled under  s.  78  of  the  Metropolis  Management 
Act,  1855,  to  recover  the  expenses  incurred  by 
them.  8t.  John'*,  Hampsteaa,  v.  Hoopel,  16  Q. 
B.  D.  662  ;  64  L.  J.,  M.  0. 147  ;  33  W.  R.  903 ; 
»  J.  P.  471— D. 

Deposit  of  Flam  —  Mandamus  to  submit 
Haas  to  Metropolitan  Board  of  Works.]— The 
making  and  branching  of  sewers  within  the 
district  of  a  vestry  or  district  board  is  by  8.  47 
of  the  Metropolis  Management  Act,  1862,  made 
•abject  to  the  sanction  in  writing  of  the  vestry 
Qf  district  board  being  first  obtained.  But  a 
retry  or  district  board  cannot  give  such  sanc- 
tion by  the  provisions  of  s.  48,  without  the 
approval  of  the  Metropolitan  Board  of  Works  : 
—Held,  that  it  is  no  answer  to  a  mandamus 
requiring  a  district  board  to  submit  to  the 
Metropolitan  Board  of  Works  plans  and  sections 
of  sewers  laid  before  them  in  pursuance  of  s.  47, 
to  aTer  that  the  board  has  refused  to  sanction 
the  making  of  the  roads  in  which  the  proposed 
•ewers  are  intended  to  be  made ;  and  that  there- 
fore the  district  board,  having  no  other  objec- 
tion, it  was  their  duty  under  s.  48  to  submit  the 
plans  and  sections  to  the  Metropolitan  Board  of 
Works.  Reg.  v.  Wandsworth  Board  of  Work*, 
49  J.  P.  806— D. 

Approval  of— Costs  of  Inspection.]— A  district 
board  of  works  has  no  power  under  the  Metro- 


polis Management  Act,  1862,  if  it  approve  of 
the  plans  and  sections  of  sewers  proposed  to 
be  constructed  by  a  private  landowner  and 
branched  into  the  main  system,  to  withhold 
their  sanction  in  writing  to  the  construction  of 
the  same  until  such  private  landowner  shall  pay 
a  sum  of  money  to  the  board  to  cover  the  ex- 
penses of  the  Board  in  supervising  such  works. 
Reg.  v.  Greenwich  Board  of  Works,  1  O.  &  £. 
236— Day,  J. 

Sweeping  Mod  into.] — By  s.  205  of  the  Metro- 
polis Local  Management  Act,  1855,  it  is  provided 
that  no  scavenger  or  other  person  shall  sweep, 
rake,  or  place  any  soil,  rubbish,  or  filth,  or  any 
other  thing  into  or  in  any  sewer  or  drain,  or  use 
any  grate  communicating  with  any  sewer  or 
drain  .  .  .  and  every  scavenger  who  shall  so 
offend  shall  .  .  .  forfeit  and  pay  any  sum  not 
exceeding  52.  Scavengers  having  swept  mud  to 
the  side  of  a  street,  and  forced  it  by  means  of 
water  through  a  grating  into  a  sewer,  were  con- 
victed of  an  offence  against  the  act : — Held, 
that  "mud"  came  within  the  meaning  of  the 
words  in  the  above  section,  and  that  the  convic- 
tion was  right  Metropolitan  Board  of  Works 
v.  Baton  or  Heaton,  60  L.  T.  634 ;  48  J.  P.  611 
— D. 

d.  Beoovery  of  Expenses. 

Paving  Bates— Covenant  to  Pay.]^&*  Lajtd- 
lobd  and  Tenant,  III.,  3,  h. 

"  House  "— "  Land  "— "  Owner  "—Trustees  of 
Chapel.]— By  the  term  "  houses,"  in  s.  105  of  the 
Metropolis  Local  Management  Act,  1855,  and 
the  term  "land,"  in  s.  77  of  the  Metropolis 
Local  Management  Act,  1862,  it  is  intended  to 
include  (with  certain  exceptions)  all  the  frontage 
of  a  new  street,  so  as  to  make  all  the  owners  of 
the  frontage  liable  to  contribute  to  the  expense 
of  paving  the  new  street.  The  word  "  house  " 
includes  every  building  which  is  capable  of 
being  used  as  a  human  habitation.  If  a  building, 
which  is  physically  capable  of  being  so  used,  is 
prevented,  either  by  common  law  or  statute, 
from  being  ever  put  to  such  a  use,  it  is  exempted 
from  the  liability  to  contribute  to  the  expense. 
A  consecrated  church  of  the  Established  Church 
of  England  is  exempted,  because,  by  reason  of 
its  consecration,  it  becomes  by  the  common  law 
for  ever  incapable  of  being  used  as  an  habitation 
for  man.  But  a  leasehold  chapel  fronting  on  a 
new  street,  the  chapel  being  vested  in  trustees, 
on  trust  to  permit  it  to  be  used  as  a  place  of  re- 
ligious worship  by  a  congregation  of  Wesleyans, 
is  a  house  within  the  meaning  of  s.  105,  for,  by 
the  consent  of  the  landlord,  the  trustees,  and 
the  cestuis  que  trustent,  the  trusts  might  at  any 
moment  be  put  an  end  to.  Wright  v.  Ingle,  16 
Q.  B.  D.  379  ;  65  L.  J.,  M.  C.  17  ;  64  L.  T.  511 ; 
34  W.  B.  220 ;  50  J.  P.  436— C.  A. 

Held,  also,  that  the  trustees  were  the  "owners" 
of  the  chapel,  and  as  such  liable  to  contribute  to 
the  expense  of  paving  the  new  street.    lb. 

"Owner  of  Land" — Land  subject  to  Cove- 
nants.]— By  the  Metropolis  Local  Management 
Act,  1855,  s.  250,  the  word  "owner"  shall  mean 
the  person  for  the  time  being  receiving  the  rack- 
rent  of  the  lands  or  premises  in  connexion  with 
which  the  word  is  used,  or  who  would  so  receive 
the  same  if  such  lands  or  premises  were  let  at  a 

B  B 


1219 


METROPOLIS— Vestry  and  Board  of  Works. 


12% 


Tack-rent ;  and  by  the  Metropolis  Local  Manage- 
ment Acts  Amendment  Act,  1862,  s.  77  (which  is 
to  be  read  as  one  with  the  Act  of  1865, "  owners  " 
of  land  abutting  on  any  new  street  are  made 
liable  to  contribute  towards  the  expenses  of 
paving  the  same.  The  appellant,  having  a  strip 
of  land  about  4  inches  wide  and  265  feet  in  length, 
abutting  upon  the  north  side  of  a  new  street, 
had  erected  a  boundary  fence  upon  the  land  along 
its  whole  extent,  under  a  covenant  to  erect  and 
for  ever  after  maintain  a  fence  thereon  made  with 
his  vendor,  who  was  owner  of  the  land  adjoining 
the  strip  on  the  north  side: — Held,  that  the 
appellant  was  the  "  owner  "  of  the  strip  of  land 
within  the  meaning  of  s.  250  of  the  Metropolis 
Local  Management  Act,  1855,  and  therefore 
liable  to  contribute  towards  the  expense  of 
paving  the  new  street.  Williams  v.  Wandsworth 
Board  of  Works,  13  Q.  B.  D.  211 ;  53  L.  J.,  M.  C. 
187  ;  32  W.  B.  908  ;  48  J.  P.  439— D. 

Hew  Street  in  Two  Distriota— Order  for  ex- 
clusive Management  by  One.]  —An  order  of  the 
Metropolitan  Board  of  Works  made  under  18  & 
19  Vict.  c.  120,  s.  140,  and  25  &  26  Vict.  c.  102, 
s.  86,  that  a  new  street  in  more  than  one  parish 
or  district  shall  be  under  the  exclusive  manage- 
ment of  one  vestry  or  district  board  for  the  pur- 
poses of  paving,  and  the  expenses  payable  by 
each  be  divided  equally  between  the  two  parishes 
or  districts,  is  valid ;  but  such  order  does  not 
entitle  the  managing  vestry  or  board  to  require 
the  other  vestry  or  board  to  pay  one-half  of  the 
expenses.  St.  Giles,  Camberwell  v.  Greenwich 
Board  of  Works,  19  Q.  B.  D.  502  ;  56  L.  J.,  Q.  B. 
636  ;  36  W.  R.  126— D. 

8tale  Demand — Successive  Occupier — Statute 
of  Limitations.] — In  1871,  a  metropolitan  vestry 
apportioned  paving  expenses  on  the  then  owner 
of  a  house  and  made  demand,  but  the  sum  was 
not  paid.  In  1885,  a  fresh  demand  was  made  on 
W.,  the  new  owner,  and  the  justices  made  an 
order  on  W.,  within  six  months  thereafter  : — 
Held,  that  there  was  no  Statute  of  Limitations 
or  other  bar  to  the  recovery  of  the  said  expenses, 
and  that  the  order  was  right.  Wortley  v.  St. 
Mary,  Islington,  51  J.  P.  166— D. 

Exemption  —  Owners  of  Land  abutting  on 
"  Street  "—Hew  Street.]— The  words  "  a  street " 
in  8.  53  of  the  Metropolis  Management  Amend- 
ment Act,  1862  (25  &  26  Vict.  c.  102),  include 
"  new  streets  "  as  defined  by  s.  112,  as  well  as  old 
streets.  In  1872  a  road  in  the  metropolis  which 
had  up  to  that  time  been  a  turnpike  road  ceased 
to  be  a  turnpike  road  and  became  a  common 
highway.  In  1883  the  vestry  of  the  parish  in 
which  the  road  was,  constructed  a  sewer  and 
apportioned  part  of  the  expense  of  construction 
on  the  owner  of  lands  abutting  on  the  road. 
Previously  to  1883  there  had  been  no  sewer  in 
this  part  of  the  road.  Sewers'  rates  had  been 
levied  for  five  years  prior  to  the  1st  of  January, 
1856,  in  respect  of  these  lands : — Held,  that 
the  case  fell  under  s.  53  and  not  under  s.  52  of 
the  Metropolis  Management  Amendment  Act, 
1862  (25  &  26  Vict.  c.  102);  that  the  road 
was  a  "  street "  within  the  meaning  of  s.  53  as 
defined  by  s.  112  of  that  act,  and  that  the 
lands  were  under  the  proviso  in  s.  53  exempt 
from  apportionment.  St.  Giles,  Camberwell  v. 
Weller  (6  L.  R.,  Q.  B.  168,  n.)  and  Sheffield  v. 
Fttiham  Board  (1  Ex,  D.  395)  approved.  Sawyer 


v.  Paddington  Vestry  (6  L.  R.,  Q.  B.  164)  over- 
ruled. St.  John's,  Hampstead  v.  Cotton,  12  App. 
Cas.  1;  56  L.  J.,  Q.  B.  225  ;  66  L.  T.  1;  35  W.  R. 
505  ;  51  J.  P.  340— H.  L.  (E.) 

Apportionment  of  Expenses — Power  of  Vestry.] 
— An  apportionment  by  a  vestry  or  district 
board  of  the  expenses  of  paving  a  new  street 
under  s.  77  of  the  Metropolis  Management 
(Amendment)  Act,  1862,  is  not  invalid  by  reason 
of  its  being  at  a  higher  rate  in  the  case  of  one 
piece  of  land  abutting  on  the  street  than  in  the 
case  of  another.  Such  an  apportionment,  on  the 
true  construction  of  the  section,  need  not  be 
made  on  any  uniform  principle,  but  it  is  in  the 
absolute  discretion  of  the  vestry  or  board,  and 
can  only  be  questioned  on  the  ground  of  want  of 
good  faith.  Stotesbury  v.  St.  Giles,  Camberwell, 
57  L.  J.,  M.  C.  114 ;  59  L.  T.  473 ;  63  J.  P.  5 
— D. 

Payment  out  of  General  Bates — Expenses  act 
enforceable  against  adjoining  'Owners.]  —  In 
1876  a  local  authority  caused  the  footpaths  of 
a  new  street  (within  the  meaning  of  the  Act 
of  1855)  to  be  paved,  at  a  cost  of  1,425/., 
raised  out  of  the  general  rates,  and  subsequently 
repaired  them  from  time  to  time.  Ten  yean 
afterwards  a  resolution  was  passed  at  a  vestry 
that  these  paths  should  be  paved  under  the 
powers  of  s.  105  of  the  Act  of  1855  and  s.  77 
of  the  Amendment  Act  of  1862,  and  the  costs 
apportioned  among  the  adjoining  owners. 
Upon  an  objection  being  taken  by  an  adjoin- 
ing owner  that  the  local  authority,  having  laid 
out  a  substantial  sum  in  making  permanent 
footpaths  in  1876,  which  was  then  charged  to 
the  general  rates,  were  estopped  from  exercising 
their  power  of  paving  the  street  again  under 
these  sections  and  throwing  the  cost  upon  the 
adjoining  owners  : — Held,  that  the  work  having 
been  once  done  the  local  authority  could  not,  ten 
years  afterwards,  throw  the  burden  of  paving 
upon  the  adjoining  owners.  St.  Giles,  Camber- 
well  v.  Hwnt,  66  L.  J.,  M.  C.  65  ;  52  J.  P.  132 
— D. 

Payment  by  Purchaser  of  Property— Implied 
Covenant  against  Incumbrances.] — The  expense! 
of  paving  a  new  street  apportioned  under  a  77 
of  the  Metropolis  Management  Amendment  Act 
1862,  are  not  a  charge  upon  the  property  in  re- 
spect of  which  they  are  payable,  and  therefore  if 
the  owner  sells  the  property  while  the  expenses 
are  unpaid,  and  conveys  as  beneficial  owner,  and 
the  purchaser  is  compelled  to  pay  such  expenses, 
the  purchaser  cannot  recover  the  amount  so  paid 
from  the  vendor  under  the  implied  covenant 
against  incumbrances  contained  in  the  convey- 
ance by  virtue  of  s.  7,  sub-s.  (A)  of  the  Con- 
veyancing and  Law  of  Property  Act,  1881.  E§$ 
v.  Blayney,  21  Q.  B.  D.  107 ;  67  L.  J.,  Q.  B.  460; 
59  L.  T.  65  ;  36  W.  B.  893  ;  52  J.  P.  517— D. 

Payable  ont  of  Capital  or  Inoome.] — A  testator 
bequeathed  leasehold  houses  and  other  personal 
property  to  trustees,  in  trust,  after  payment  of 
"  all  ordinary  outgoings  for  ground  rent,  repairs, 
taxes,  expenses  of  insurance,  or  otherwise,"  to 
pay  the  income  to  his  wife  for  life,  with  trusts 
over.  One  of  the  leasehold  houses  was  held  by 
the  testator  under  a  lease  which  threw  unon  the 
lessee  all  "  taxes,  rates,  assessments,  and  imposi- 
tions," and,  after  his  death,  the  sanitary  authority 


1221 


METROPOLIS— Rates. 


1222 


haying  served  a  notice  under  18  &  19  Vict, 
c  120, 8.  73,  on  the  occupier  of  the  house,  re- 
quiring the  execution  of  certain  drainage  works, 
the  trustees  of  the  will  employed  a  contractor  to 
execute  the  works,  and  deducted  the  expense 
from  the  income  of  the  tenant  for  life  : — Held, 
that  the  expense  was  payable  out  of  the  income 
of  the  testator's  estate,  and  not  out  of  the  corpus, 
and  that  the  deduction  had  been  properly  made. 
Crawley,  In  re,  Acton  v.  Crawley,  28  Ch.  D. 
431 ;  64  L.  J.,  Ch.  652  ;  52  L.  T.  460  ;  33  W.  B. 
611 ;  49  J.  P.  598— Pearson,  J. 


II.    BATES. 
1.   IN  GENEBAL. 

Validity  of— Issuing  Precept.]  —  By  the 
Metropolis  Management  Act,  1855  (18  &  19  Vict. 
c  120),  s.  158,  every  vestry  and  district  board 
shall  from  time  to  time  u  by  order  under  their 
seal  require  "  the  overseers  of  their  parish  to  levy 
the  sums  which  such  vestry  or  board  may  re- 
quire for  defraying  the  expenses  of  the  execution 
of  the  act.  By  s.  161  the  overseers  u  to  whom 
any  such  order  as  aforesaid  is  issued  shall  levy 
the  amount  mentioned  therein  according  to  the 
exigency  thereof  "  : — Held  (diss.  Day,  J.),  that 
soch  an  order  became  effective  when  sealed,  and 
service  of  it  on  the  overseers  was  not  necessary 
to  authorise  them  to  levy  rates,  but  that  rates 
made  by  overseers  in  pursuance  of  such  order, 
after  notice  of  it  having  been  sealed,  were  valid. 
Glen  v.  Fulham  Overseers,  14  Q.  B.  D.  328  ;  54 
L.  J.,  M.  C.  9  ;  51  L.  T.  866  ;  33  W.  B.  165  ;  49 
J.  P.  519— D. 

Serosal  of  Magistrate  to  issue  Warrant 
pending  Appeal.] — The  rateable  value  of  certain 
property  having  been  re-assessed  at  a  much 
higher  sum,  the  owners  appealed.  Before  the 
hearing  of  the  appeal  it  was  agreed  that  a  special 
case  should  be  stated  for  the  opinion  of  the 
Queen's  Bench  Division,  and  that  in  the  mean- 
time rates  should  be  paid  on  the  former  valuation, 
and  these  terms  were  embodied  in  an  order  made 
by  a  judge  on  the  23rd  March,  1881.  In  1883 
the  overseers  applied  to  the  magistrate  for  a 
distress  warrant  for  the  amount  of  the  rates 
according  to  the  new  assessment,  but  the  appli- 
cation was  refused,  on  the  ground  that  as  the 
appeal  was  still  pending  the  overseers  were  bound 
hy  the  order  of  the  judge.  The  overseers  then 
applied  to  the  Queen's  Bench  Division  for  a 
mandamus  to  the  magistrate  to  issue  the  war- 
rant:— Held,  that  in  consequence  of  the  pro- 
visions of  32  &  33  Vict.  c.  67,  s.  44,  which  enacts 
that,  pending  any  appeal  from  any  new  assess- 
ment, the  rate  shall  be  paid  according  to  the  new 
assessment,  the  judge  had  no  jurisdiction  to  make 
the  order,  and  that  the  consent  of  the  assessment 
committee  to  that  order  did  not  bind  the  over- 
seers. Reg.  v.  Marsham,  50  L.  T.  142  ;  32  W.  B. 
157;  48  J.  P.  308— C.  A. 


2.  VALUATION  ACTS. 

Jotiee  of  Appeal — Service  on  Persons  other 
than  the  Appellant.] — The  assessment  committee 
of  a  union  appealed,  under  s.  32  of  the  Valuation 
(Metropolis)  Act,  1869,  to  the  general  assessment 


sessions  against  the  valuation  list  of  the  respon- 
dent parish,  and  against  the  total  gross  and  rate-  • 
able  values  appearing  therein,  on  the  ground 
that  those  values  were  too  low,  and  it  appeared 
from  the  case  stated  by  the  appellants  in  com- 
pliance with  the  rules  made  under  the  act  that 
they  sought  to  have  the  total  values  increased 
by  showing  that  the  assessments  in  the  valuation 
list  of  a  large  number  of  specified  hereditaments 
were  too  low  : — Held,  that  the  appeal  did  not 
"  relate  to  the  unfairness  or  incorrectness  of  the 
valuation  of  any  hereditament  occupied  by  any 
hereditaments  occupied  by  any  person  other  than 
the  appellant"  within  the  meaning  of  s.  33 
of  the  Valuation  (Metropolis)  Act,  1869  ;  that 
those  words  applied  only  to  appeals  in  which 
it  was  objected  that  the  valuation  of  particular 
hereditaments  was  unfair  or  incorrect  so  far  as 
it  affected  the  assessment  of  the  ratepayers 
of  a  parish  inter  se ;  and  therefore  that  the 
appellants  need  not  serve  notice  of  appeal 
under  s.  33  upon  the  occupiers  of  the  specified 
hereditaments.  Reg.  v.  General  Assessment 
Sessions,  17  Q.  B.  D.  394  ;  35  W.  B.  12  ;  50  J.  P. 
724— D. 

Supplemental  List — Alteration  during  pro- 
ceding  Twelve  Months— Diminution  of  Income.] 
— On  an  appeal  from  the  assessment  committee 
as  to  a  supplemental  valuation  list  under  the 
Valuation  (Metropolis)  Act,  1869  (32  &  33  Vict, 
c.  67),  evidence  of  a  falling  off  in  receipts  of 
tonnage  rates  on  vessels  coming  to  certain  docks 
during  the  twelve  months  preceding  the  making 
of  the  supplemental  list  when  the  rates  were  the 
same,  and  which,  as  compared  with  former  years, 
shows  a  continuous  and  not  accidental  falling 
off,  is  sufficient  if  not  explained  or  rebutted  to 
show  an  alteration  in  the  rateable  value  of  the 
docks  during  that  period  within  the  meaning  of 
s.  46.  When  such  alteration  has  been  established, 
and  it  has  therefore  to  be  entered  in  a  supple- 
mental list,  the  rateable  value  of  the  docks  is  to 
be  ascertained,  not  by  opening  up  the  previous 
quinquennial  or  supplemental  list,  but  by 
assuming  the  value  in  the  list  then  in  force  to 
be  the  correct  value  at  the  commencement  of  the 
twelve  months  preceding,  and  by  deducting  from 
it  the  diminution  in  value  from  the  alteration 
during  that  period.  Reg.  v.  East  and  West 
India  Dock  Company  or  Poplar  Union,  13 
Q.  B.  D.  364  ;  53  t.  J.,  M.  C.  97  ;  51  L.  T.  97  ; 
48  J.  P.  564— C.  A.  Beversing,  32  W.  B.  321— 
D. 

Beduction  in  Value  within  Year—Dete- 
rioration not  merely  Structural.] — Sections  46 
and  47  of  the  Valuation  of  Property  (Metro- 
polis) Act,  1869,  are  not  confined  to  or  applicable 
only  to  structural  deterioration  in  property. 
Therefore  a  ratepayer  who  can  show  a  prima 
facie  case  of  reduction  in  the  rateable  value  of 
his  property  from  other  causes  than  of  a  purely 
structural  nature  is  entitled  to  call  upon  the 
Assessment  Committee  to  appoint  a  person  to 
make  a  provisional  list,  showing  the  gross  and 
rateable  value  of  his  property,  as  reduced  since 
the  making  of  the  valuation  list  in  force.  Reg. 
v.  St.  Mary,  Islington,  19  Q.  B.  D,  529  ;  56  L.  J., 
Q.  B.  597  ;  67  L.  T.  270  ;  36  W.  B.  664  ;  51  J.  P. 
789— D. 

Alteration  in  Value  during  Tear— Power 

of  Overseers.] — Where  a  requisition  is  made  to 

BS2 


1228 


MINES    AND    MINERALS. 


1224 


the  overseers  of  a  parish  to  make  and  send  to 
the  assessment  committee  a  provisional  list 
Tinder  s.  47  of  the  Valuation  (Metropolis)  Act, 
1869,  containing  the  gross  and  rateable  value  of 
an  hereditament,  on  the  ground  that  the  value 
has  been  increased  or  diminished  during  the  year, 
the  overseers  are  not  bound  to  comply  with  the 
requisition  if  they  are  of  opinion  that  no  such 
alteration  in  value  has  taken  place,  and  a  man- 
damus will  not  be  granted  to  compel  them  to 
do  so.  Reg,  v.  St,  Mary,  Bemwndsey,  14  Q.  B.  D. 
351  ;  54  L.  J.,  M.  C.  68  ;  33  W.  R.  414 ;  49  J.  P. 
38— D. 


Special   Sessions — Appeal.  ] — An  appeal 


does  not  lie  to  special  sessions  from  the  deter- 
mination of  the  assessment  committee  on  an 
objection  to  a  provisional  list  made  under  s.  47 
of  the  Valuation  (Metropolis)  Act,  1869.  FuU 
ham  Union  v.  Wells,  20  Q.  B.  D.  749 ;  57  L.  J., 
M.  0.,  112  ;  59  L.  T.  103  ;  36  W.  B.  858 ;  52  J.  P. 
663— D. 


III.   TRAFALGAR    SQUARE. 

Bight  of  Public  Meeting.]— Semble  :— There 
is  no  right  on  the  part  of  the  public  to  occupy 
Trafalgar  Square  for  the  purpose  of  holding 
public  meetings,  tat  the  Commissioners  of  Works 
and  Public  Buildings  (in  whom  the  care,  control, 
management,  and  regulation  of  the  square  is 
vested  by  7  &  8  Vict  c.  60,  s.  2,  and  14  &  15  Vict, 
c  42,  s.  22)  have  power  to  prohibit  the  holding 
of  such  meetings  there.  Lewis,  Ex  parte,  21 
Q.  B.  D.  191 ;  67  L.  J.,  M.  C.  108 ;  59  L.  T.  338  ; 
37  W.  R.  13  ;  62  J.  P.  773— D. 


IV.   STAGE    CARRIAGES. 

Use  of  Manager's  Fame— Injunction.] — The 
plaintiff,  as  manager  of  an  omnibus  company, 
became,  under  the  provisions  of  the  statutes  and 
rules  for  the  regulation  of  metropolitan  stage- 
carriages,  the  licensee  of  their  vehicles.  Having 
ceased  to  be  such  manager  : — Held,  that  he  was 
entitled  to  an  injunction  to  restrain  the  company 
from  continuing  to  use  his  name  upon  the  num- 
ber plates  affixed  to  their  carriages.  Hodges  v. 
London  Tramways  Omnibus  Company,  12  Q.  B.  D. 
105  ;  50  L.  T.  262 ;  32  W.  R.  616— D. 


MIDDLESEX. 

Registration   of  Deeds.]  —  See   Deed   and 
Bond,  II. 


MINES    AND    MINERALS. 

1.  In  General,  1224. 

2.  Working,  1226. 

3.  Forest  of  Dean,  1228. 

'4.  Regulation  of  Mines,  1229. 
5.   Wages,  1230. 


1.  Ik  Gbkkbal. 
Payment  of  Income  Tax  en.] — See  Revenue. 

Winding  up  of  Cost  Book  Company— Impac- 
tion of  Books.]—  See  ante,  col.  440. 

Grant— Reservation  of  Rent  Charge— Per- 
petuity.] — Where,  in  a  deed  of  grant  of  land, 
there  was  a  clause  that  a  rent-charge  should  be 
paid  by  the  purchaser,  his  heirs  or  assigns,  to  the 
vendor,  his  heirs  and  assigns,  if  the  purchaser, 
his  heirs  or  assigns,  should  at  any  time  dig  and 
work,  &&,  any  mines,  &c.,  on  the  property 
granted  : — Held,  that  the  rent-charge  was  validly 
created,  and  the  clause  not  void  as  violating  the 
rule  against  perpetuities.  Morgan  v.  Datey, 
10.&B.  115— Mathew,  J. 

Rent-charge — Minerals  railed  bat  not  pro- 
cured en  Lands  granted.] — An  agreement  to  pay 
a  sum  by  way  of  rent-charge  or  royalty,  im 
respect  of  minerals  which  may  be  raised  or 
obtained  by,  from  or  out  of  any  mine  or  mines, 
pit  or  pits,  in,  upon,  or  under  the  property 
granted,  does  not  entitle  the  person  in  whose 
favour  the  rent-charge  or  royalty  is  created  to 
receive  payment  in  respect  of  minerals  brought 
up  at  the  mouth  of  pits  upon,  but  not  procured 
under,  the  property  granted.    lb. 

Royalty— «  Shipped  for  Sale." J— D.  [in  1834, 
agreed  with  S.  for  the  purchase  of  an  estate,  and 
that  the  purchase-deed  should  contain  a  covenant 
by  D.  that  he,  his  heirs  and  assigns,  would  pay 
to  8.,  his  executors,  administrators,  and  assigns, 
the  sum  of  6*.  for  each  chaldron  of  coals  gotten 
out  of  the  estate  and  shipped  for  sale.  The 
purchase  deed  was  subsequently  executed  by  S., 
but  not  by  D.  D.,  however,  entered  upon  the 
land,  and  he  and  his  devisees  and  their  assigns 
enjoyed  the  property.  Coal  was  also  got  and 
shipped  for  sale :  —  Held,  that  the  execution 
by  D.  of  a  counterpart  of  the  deed  contain- 
ing the  covenant  must  be  presumed,  and  that 
the  words  "  shipped  for  sale  in  the  deed  meant 
coal  actually  shipped  for  sale.  Witham  v.  Vane, 
32  W.  R.  617— H.  L.  (E.)  Reversing,  44  L.  T* 
718—C.  A. 

Conveyance  of  Land  with  Reservation.]  — 
Where  the  owner  conveys  land  to  a  person,  re- 
serving the  "  liberty  of  working  the  coal "  in 
those  lands,  he  must  be  taken  to  have  reserved 
the  estate  of  coal  (unless  there  are  clear  words  in 
the  deed  qualifying  that  right  of  property)  with 
which  hestands  vested  at  the  date  of  the  convey- 
ance. Hamilton  (Duke)  v.  Hunlop,  10  App* 
Cas.  813— H.  L.  (Sc.) 

Reservation  of  Minerals  in  Leases.]— &r 
ante,  cols.  1077, 1078. 

Reservation  in  Allotment — Granite— Open 
Working.]— By  an  Inclosure  Act  passed  in  1812, 
certain  common  lands  in  Wales  were  allotted, 
an  allotment  being  made  to  the  king  as  lord  of 
the  manor  in  respect  of  his  right  to  the  soil. 
The  act  gave  the  Commissioners  of  Woods  and 
Forests  the  right  to  sell  the  allotment  made  to 
the  king,  subject  to  the  rights  of  the  king  to  the 
"  mines,  ores,  minerals,  coal,  limestone,  or  matter 
whatsoever,"  in  or  under  the  same;  and  con- 
tained a  proviso  reserving  to  the  king  his  rights 
to  any  "  mines,  ores,  minerals,  coal,  limestone, 


1225 


MINES  AND  MINERALS. 


1226 


or  date"  in  the  common  land,  and  all  rights 
and  royalties  previously  belonging  to  the  king, 
and  gave  a  rignt  of  compensation  to  the  owners 
of  the  land  for  any  damage  done  in  digging, 
rawing,  and  carrying  away  such  mines,  etc.  : — 
Held,  that  the  word  "  minerals "  included 
granite,  and  (Fry,  L.  J.,doubting)  that  the  Grown 
wis  entitled  to  win  the  granite  by  open  work- 
ings. Att.-Qcn.  v.  Welsh  Granite  Company,  35 
W.  B.  617— C.  A. 

Ltase  of— Bight  to  Spoil  Bank.]— The  lessee  of 
a  coal  mine,  under  covenant  to  remove  the  spoil 
bank  at  the  end  of  his  term,  has  a  property  in 
the  material  of  the  bank,  giving  him  a  right  of 
action  against  a  stranger  removing  part  of  it  for 
brick  making.  Robinson  v.  Milne,  53  L.  J.,  Ch. 
1070— North,  J. 

Agreement  for  Mining  Lease— Lessee  in  Pos- 
session—Payment  of  Royalties  into  Court.] — 
The  plaintiffs  commenced  an  action  against  the 
defendant  for  specific  performance  of  an  agree- 
ment for  a  lease  of  a  coal  mine  by  the  plaintiffs 
to  the  defendant  at  a  royalty,  as  the  plaintiffs 
alleged,  of  lQrf.  per  ton.  The  defendant  counter- 
claimed  to  have  specific  performance  with  a 
royalty  of  less  amount.  The  defendant  was  in 
possession,  and  raising  and  selling  large  quan- 
tities of  coal,  but  he  alleged  that  he  had  ex- 
pended on  the  mine  more  than  the  value  of  the 
coal  raised.  He  also  brought  an  action  against 
the  plaintiffs  in  the  Queen's  Bench  Division  to 
obtain  damages  for  misrepresentations  alleged  to 
have  been  made  to  him  for  the  purpose  of  in- 
ducing him  to  enter  into  the  agreement,  which 
action  was  still  pending.  The  plaintiffs  moved 
for  an  interlocutory  order  that  the  defendant 
might  be  ordered  to  pay  into  court  the  amount 
of  royalties  at  lOd.  per  ton  on  the  coal  he  had 
raised,  but  the  court  refused  the  motion : — Held, 
on  appeal,  that  although  it  would  not  be  right, 
while  the  right  of  royalty  was  in  dispute,  to 
order  the  defendant  to  pay  into  court  the 
amount  of  royalties  at  the  rate  claimed  by  the 
plaintiffs,  he  ought  to  be  ordered  to  pay  in  the 
amount  of  royalties  at  the  rate  which  he  him- 
self alleged  to  be  the  one  agreed  upon,  and  that 
as  his  carrying  away  coal  diminished  the  value 
of  the  property,  he  would  not  have  the  usual 
option  of  giving  up  possession  instead  of  paying 
money  into  court.  Lewis  v.  James,  32  Oh.  D. 
326;  66  L.  J.,  Ch.  163  ;  54  L.  T.  260 ;  34  W.  R. 
619 ;  60  J.  P.  428— C.  A. 

Mortgage — Accounts — Value  of  Coal  Im- 
properly Worked— Deductions— Costs  of  Sever- 
not  sod  of  Baiting.]— The  plaintiffs  were 
mortgagees  in  possession  of  a  colliery,  and  were 
also  treated  by  the  court  as  lessees  of  the  same 
colliery  under  a  lease  for  a  fixed  term  of  years 
at  a  rent  and  a  certain  royalty  for  all  coal 
gotten.  The  lease  contained  covenants  to  leave 
pillars  of  coal  to  support  the  roof  and  not  to 
work  or  remove  the  pillars.  The  mortgagees 
underlet  the  colliery  and  gave  their  sub-lessees 
permission  to  work  and  remove  the  pillars,  which 
they  did  : — Held,  that  in  taking  the  accounts  as 
against  mortgagees  in  possession,  the  mortgagees 
having  allowed  their  sub-lessees  to  take  the 
coal,  must  be  treated  as  having  taken  it  them- 
selves, and.  having  so  taken  it  wrongfully  in 
breach  of  the  covenants  in  the  lease,  must  be 
charged,  not  with  the  amount  of  the  royalty 
reserved,  but  with  the  fall  value  of  the  coal, 


subject  to  a  deduction  for  the  costs  of  bringing 
it  to  the  surface,  but  not  for  the  costs  of 
severance  ;  and  the  foreclosure,  which  had  been 
made  absolute  before  the  anneal  was  heard,  was 
reopened.  Livingstone  v.  Mawyards  Coal  Com- 
pany (5  App.  Cas.  25)  distinguished.  Taylor  v. 
Mostyn,  S3  Ch.  D.  226 ;  55  L.  J.,  Ch.  893 ;  65 
L.  T.  651— C.  A. 

Compulsory  Purchase  of  Surface— Whether 
day  it  included  in  "other  Minerals."]— The 
18  th  section  of  the  Waterworks  Clauses  Act, 
1847  (10  &  11  Vict.  c.  17),  provides  that  "  the 
undertakers  shall  not  be  entitled  to  any  mines 
of  coal,  ironstone,  slate,  or  other  minerals  under 
any  land  purchased  by  them."  The  appellants, 
by  virtue  of  the  act  and  a  conveyance  contain- 
ing a  reservation  of  the  "  whole  coal  and  other 
minerals  in  the  land  in  terms  of  the  Waterworks 
Clauses  Act,  1847,"  purchased  from  the  respon- 
dent a  parcel  of  land  for  the  purpose  of  erecting 
waterworks.  Under  the  land  was  a  seam  of 
valuable  brick  clay.  The  respondent  worked 
this  clay  in  the  adjoining  land,  and  having 
reached  the  appellants'  boundary,  claimed  the 
right  to  work  out  the  clay  under  the  land  pur- 
chased by  the  appellants : — Held  (Lord  Herscnell, 
dissenting),  that  common  clay,  forming  the  sur- 
face or  subsoil  of  land,  was  not  included  in  the 
reservation  in  the  act,  and  that  the  appellants 
were  entitled  to  an  interdict  restraining  the 
respondent  from  working  the  clay  under  the 
land  purchased  by  them.  Glasgow  {Lord  Pro- 
vosf)  v.  Farie,  13  App.  Cas.  657 ;  58  L.  J.,  P.  C. 
38  ;  60  L.  T.  274  ;  37  W.  R.  627— H.  L.  (Sc) 

Injury  by  Laying  Down  Pipes — Alluvial 
Depotit  worked  at  a  Profit] — In  an  action 
brought  by  J.,  the  owner  in  fee  simple  of  certain 
mines  of  coal,  culm,  iron,  and  all  other  mines 
and  minerals  (except  stone  quarries)  against  N., 
a  rural  sanitary  authority,  for  damages  for  injury 
done  by  reason  of  N.  having  constructed  certain 
sewage  pipes  under  the  provisions  of  the  Public 
Health  Act,  1875,  in  respect  of  his  interest  in  a 
certain  alluvial  deposit,  being  a  pure  clay  of 
superior  quality,  used  for  the  manufacture  of 
bricks,  underlying  the  surface  : — Held,  that  J. 
was  entitled  to  recover,  inasmuch  as  the  alluvial 
deposit  came  within  the  reservation  of  minerals. 
Jersey  {Earl)  v.  Neath  Union,  52  J.  P.  582 — 
Day,  J.  Affirmed  22  Q.  B.  D.  555  ;  37  W.  R. 
388  ;  63  J.  P.  404— C.  A. 


2.  WOBKIXG. 

Under  Railway.] — See  Railway. 

Injury  to  Canal  caused  by  Working.] — See 
Water. 

Damage  to  Surface— Inclosure  Act — Manorial 
Rights,  f— An  inclosure  act  enacted  that  allot- 
ments should  be  made  to  the  persons  having  a 
right  of  common  upon  the  waste  of  the  manor, 
that  is,  to  the  owners  of  every  separate  ancient 
dwelling-house  within  the  manor ;  that  all  rights 
of  common  should  be  extinguished ;  and  that 
the  allotments  should  be  held  and  enjoyed  by 
the  allottees  by  the  same  tenure  and  estates 
as  the  respective  dwelling-houses :  provided 
that  nothing  should  prejudice,  lessen  or  defeat 
the  title  and  interests  of  the  lords  of  the  manor 
to   and   in   the   royalties,  but  that  the  lords 


1227 


MINES    AND    MINERALS. 


1228 


and  their  successors  as  owners  of  the  royalties 
should  for  ever  hold  and  enjoy  all  "rents, 
courts,  perquisites,  profits,  mines,  power  of  using 
or  granting  wayleave,  waifs,  estrays,  and  all 
other  royalties  and  jurisdictions  whatsoever  "  to 
the  owners  of  the  manor  appertaining  "  in  as 
full,  ample,  and  beneficial  manner  to  all  intents 
and  purposes  as  they  could  or  might  have  held 
and  enjoyed  the  same  in  case  this  act  had  not 
been  made.1'  Provided  further,  that  in  case 
the  lords  or  any  persons  claiming  under  them 
should  work  any  mines  lying  under  any  allot- 
ment, or  should  lay,  make,  or  use  any  way  or 
ways  over  any  allotment,  such  persons  so  working 
the  mines,  or  laying,  making,  or  using  such  way 
or  ways  should  make  "satisfaction  for  the 
damages  and  spoil  of  ground  occasioned  thereby 
to  the  person  or  persons  who  shall  be  in  posses- 
sion of  such  ground  at  the  time  or  times  of  such 
damage  or  spoil "  ;  such  satisfaction  to  be  settled 
by  arbitration  and  "  not  to  exceed  the  sum  of  61. 
yearly  during  the  time  of  working  such  mines  or 
continuing  or  using  such  way  or  ways  for  every 
acre  of  ground  so  damaged  or  spoiled."  At  the 
time  of  passing  the  act  there  were  no  customs 
which  enlarged  or  cut  down  the  common  law 
rights  of  the  lords  to  work  the  minerals  under 
the  wastes  of  the  manor.  Under  the  act  an 
allotment  was  made  in  1772  to  a  commoner  in 
respect  of  an  ancient  freehold  dwelling-house. 
At  that  time  no  house  had  been  built  upon  the 
allotment.  More  than  twenty  years  after  a  house 
had  been  built  upon  it,  the  minerals  underlying 
it  were  worked  by  lessees  of  the  lords  of  the 
manor  so  as  to  cause  the  surface  of  the  land  to 
subside,  whereby  the  house  was  damaged  to  an 
amount  exceeding  the  sum  recoverable  under  the 

Eroviso.  The  land  would  have  subsided  if  there 
ad  been  no  house.  An  action  for  damages 
having  been  brought  against  the  lessees  by  the 
allottee's  successor  in  title  and  by  his  tenant  in 
possession  : — Held,  that  upon  the  true  construc- 
tion of  the  act,  the  proviso  for  satisfaction  did 
not  apply  to  damage  from  subsidence  ;  that  there 
was  nothing  in  the  act  giving  the  lords  the  right 
to  let  down  the  surface  ;  that  the  plaintiffs  were 
entitled  to  have  the  house  and  land  supported  by 
the  minerals,  and  to  recover  damages  for  the 
subsidence.      Lore   v.  Bell,  9  App.  Cas.  286  ; 

53  L.  J.,  Q.  B.  257  ;  61  L.  T.  1  ;  32  W.  R.  725 ; 
48  J.  P.  516— H.  L.  (E.) 

Successive  Subsidences — Statute  of  Limita- 
tions.]— In  1868,  the  defendants  worked  out  a 
seam  of  coal  in  their  mine,  and  thereby  caused 
certain  cottages  of  the  plaintiff  to  subside. 
The  defendants  repaired  the  damage.  The  mine 
was  no  longer  worked,  and  the  excavation 
remained  as  it  was  until  1882,  when  there 
occurred  a  second  subsidence,  which  was  ad- 
mitted to  be  the  result  of  mining  operations 
in  1868,  and  caused  injury  to  the  plaintiff's 
cottages,  whereupon  he  sued  the  defendants  for 
damages  : — Held  (Lord  Blackburn  diss.),  that 
on  the  occurrence  of  the  second  subsidence  a 
cause  of  action  accrued  to  the  plaintiff,  and 
therefore  that  his  right  to  maintain  an  action  in 
1883  was  not  barred  by  the  Statute  of  Limita- 
tions. Barley  Main  Colliery  Company  v.  Mit- 
chell, 11  App.  Cas.  127  ;  55  L.  J.,  Q.  B.  529  ; 

54  L.  T.  882  ;  51  J.  P.  148— H.  L.  (E.).  Affirm- 
ing 32  W.  R.  947— C.  A. 

Compensation  Honeys — Capital  or  Income — 


Successive  Tenants  for  Life — Remaindermen.]— 
Minerals  were  devised  by  will  upon  trust  for 
B.  for  life  without  impeachment  of  waste,  with 
remainder  on  trust  for  the  defendant  for  life 
without  impeachment  of  waste,  with  remainders 
over.  During  the  life,  and  also  after  the  death 
of  B.,  part  of  these  minerals  were  won  by  instroke 
by  the  owners  of  the  adjoining  mines,  who  had 
trespassed  innocently  and  paid  compensation 
moneys  for  so  doing  : — Held,  that  the  moneys 
paid  in  respect  of  the  minerals  so  won  daring 
the  respective  lives  of  B.  and  the  defendant, 
belonged  to  the  estate  of  B.  and  to  the  defendant 
respectively.  Barrington,  In  re,  Gamlen  v. 
Lyon,  33  Ch.  D.  523  ;  56  L.  J.  Ch.  175  ;  65  L.  T. 
87  ;  35  W.  R.  164— Kay,  J. 

The  minerals  were  leased  by  the  testator.  A 
railway  passed  over  a  portion  of  the  lands  under 
which  they  lay,  and  after  the  death  of  B.  the 
lessee  gave  the  railway  company  notice  of  his 
desire  to  work  the  minerals  lying  under  and 
adjoining  a  portion  of  the  railway.  The  com- 
pany gave  a  counter  notice  that  these  minerals 
were  required  for  the  support  of  the  railway, 
and  ultimately  paid  compensation  money,  part  of 
which  was  apportioned  as  paid  in  respect  of  the 
lessor's  interest : — Held,  that  as  the  minerals  in 
respect  of  which  the  compensation  money  had 
been  paid  were  not  of  such  extent  that  they 
could  not  possibly  have  been  got  during  the  life 
of  the  existing  tenant  for  life,  the  defendant,  as 
such  tenant  for  life,  was  entitled  to  such  appor- 
tioned part  of  the  compensation  money  under 
s.  74  of  the  Lands  Clauses  Consolidation  Act, 
1845.    lb. 

Fixtures — Removal— Tenant  for  Life  of  Mine* 
and  Collieries — Remainderman.] — A  tenant  for 
life  of  real  estate,  who  was  entitled  to  hold  and 
enjoy  the  working  stock  and  plant  of  certain  iron 
mines  and  collieries  situate  on  the  estate,  and 
carry  on  such  iron  mines  and  collieries,  erected 
on  the  estate,  machinery,  &c,  blast  furnaces, 
and  a  railway  of  considerable  length  connecting 
the  mines  and  collieries.  On  his  death  the 
question  arose  whether,  in  an  account  between 
his  executors  and  the  remainderman,  the  former 
should  be  credited  with  the  value  of  the 
machinery,  &a,  or  whether  the  same  passed  to 
the  remainderman  as  things  annexed  to  the  soil : 
— Held,  that  the  interest  of  the  tenant  for  life 
was  a  right  of  enjoyment  in  the  chattels,  and 
not  a  right  to  carry  on  a  business;  and  that 
therefore  his  position  with  respect  to  the  trustee 
was  that  of  a  donee  of  consumable  chattels  :— 
Held,  also,  that  the  machinery  annexed  to  the 
soil  for  the  purpose  of  rendering  the  minerals 
merchantable,  if  such  machinery  was  capable  of 
being  removed  therefrom  by  disturbing  the  soil 
without  destroying  the  land,  was  machinery 
which  could  not  be  said  to  be  so  attached  to  the 
land  as  to  become  part  of  it  and  belong  to  the 
owner  of  the  land,  but  was  to  be  deemed  to  be 
trade  fixtures  which  passed  to  the  executor  as 
personalty,  on  the  authority  of  Wake  v.  Ball  (8 
App.  Cas.  195).  Ward  v.  Dudley  (Countet*), 
57  L.  T.  23— Chitty,  J. 


3.  Forest  of  Dean. 

Forfeiture  of  Gale.]— An  application  for  a  gale 
in  the  Forest  of  Dean  must  be  made  at  a  time 


r 


1229 


MINES    AND    MINERALS. 


1280 


when  the  gale  is  vacant  Where  a  gale  had 
become  liable  to  be  forfeited  under  8.  29  of  the 
Forest  of  Dean  Act,  1838,  for  non- working : — 
Held,  that  the  forfeiture  was  not  complete  nor 
the  gale  become  vacant  until  the  Crown  had 
intimated  its  intention  of  enforcing  the  for- 
feiture. Actual  resumption  of  possession  by  the 
Crown  is  not  necessary  to  complete  the  for- 
feiture of  a  gale,  and  this  independently  of  the 
Queen's  Remembrancer  Act  (22  &  23  Vict.  c. 
21),  a.  25.  James  v.  Young,  27  Ch.  D.  652  ;  53 
L.  J.,  Ch.  793  ;  51  L.  T.  75 ;  32  W.  R.  981— 
North,  J. 


4.  Regulation  of  Mines. 

Gunpowder — Conveyance  of—*1  Cue  or  Canis- 
ter."]—By  the  Metalliferous  Mines  Act,  1872 
(35  k  36  Vict.  c.  77),  s.  23,sub-s.  2, "  Gunpowder 
or  other  explosive  or  inflammable  substance  shall 
not  be  taken  into  the  mines  except  in  a  case  or 
canister  containing  not  more  than  four  pounds  :  " 
—Held,  that  the  word  "  case "  as  used  in  the 
section  must  be  taken  to  mean  something  solid 
and  substantial  in  the  nature  of  a  canister,  and 
that  a  bag  of  linen  or  calico  was  not  such  a 
"case."    Foster  v.  Diphwys  Casson  Slate  Com- 

ray,  18  Q.  B.  D.  428  ;  56  L.  J.,  M.  C.  21 ;  51 
P.  470— D. 

Compliance  with  General  Boles  when 

Seasonably  Practicable.]  —  The  Coal  Mines 
Regulation  Act,  1872,  by  s.  51  enacts  that  certain 
general  rules  shall  be  observed  so  far  as  is 
reasonably  practicable,  and  among  them  that 
gunpowder  or  other  explosive  or  inflammable 
substance  shall  not  be  used  in  the  mine  under- 
ground, during  three  months  after  any  inflam- 
mable gas  has  been  found  in  any  such  mine,  if 
the  inflammable  gas  issued  so  freely  that  it 
showed  a  blue  cap  on  the  flame  of  the  safety- 
lamp,  except  when  the  persons  ordinarily 
employed  in  the  mine  are  out  of  the  mine  "  or 
out  of  the  part  of  the  mine  where  it  is  used  "  : — 
Held,  that  the  expression  "  reasonably  practi- 
cable" did  not  relate  to  the  carrying  on  of  the 
mine  as  a  profitable  concern,  but  to  physical  or 
engineering  difficulties  in  the  way  of  carrying 
out  the  rules,  and  that  the  expression  "  part  of 
the  mine,"  did  not  mean  the  neighbourhood 
where  the  gunpowder  would  be  used,  but  such  a 
part  of  the  mine  as  could  be  treated  under  the 
statute  as  a  separate  mine.  Walls  or  Wales  v. 
Thomas,  16  Q.  B.  D.  340 ;  55  L.  J.,  M.  C.  57  ;  55 
L.  T.  400 ;  50  J.  P.  516  ;  16  Cox,  C.  C.  128— D. 

Votiee  by  Inspector  of  Danger — Objec- 
tion of  Owner — Powers  of  Arbitrator.] — In  an 
arbitration  under  s.  46  of  the  Coal  Mines  Regula- 
tion Act,  1872,  the  duty  of  the  arbitrator  is 
limited  to  determining  whether  the  matter  com- 
plained of  by  the  inspector  is  dangerous  and 
ought  to  be  remedied,  and  he  has  no  power  to 
determine  what  is  the  proper  remedy,  or  to 
direct  that  any  particular  remedy  be  adopted. 
Some  Secretary  and  Fletoher,  In  re,  18  Q.  B. 
D.  339  ;  66  L.  J.,  Q.  B.  177  ;  35  W.  R.  282  ;  51 
J.  P.  707— C.  A. 

Check-weigher,  Appointment  of  —  Person 
"Employed  in  the  Mine."]— By  the  Coal  Mines 
Begulation  Act,  1872,  s.  18,  the  persons  employed 


in  a  mine,  and  paid  according  to  the  weight  of 
the  mineral  gotten  by  them,  may,  at  their  own 
cost,  station  a  check-weigher  at  the  place 
appointed  for  the  weighing  of  such  mineral,  in 
order  to  take  an  account  of  the  weight  thereof 
on  behalf  of  the  persons  by  whom  he  is  so 
stationed ;  and  "  the  check-weigher  shall  be  one 
of  the  persons  employed  either  in  the  mine  at 
which  he  is  so  stationed,  or  in  another  mine 
belonging  to  the  owner  of  that  mine."  The 
plaintiff,  a  check-weigher,  duly  appointed  under 
s.  18,  received  a  fortnight's  notice  to  quit  his 
employment  from  the  men  employed  in  the  mine. 
Before  the  notice  expired  the  men  held  a  fresh 
election,  at  which  the  plaintiff  (with  others) 
presented  himself  as  a  candidate,  and  was  again 
appointed : — Held,  that  the  true  construction  of 
s.  18  was  to  limit  the  class  of  persons  from  whom 
the  men  might  appoint  a  check-weigher  to  per- 
sons employed  in  the  mine  by  the  mine-owner ; 
that  the  plaintiff  ceased  to  have  any  employ- 
ment under  the  mine-owner  when  he  was  first 
appointed  check-weigher  by  the  men;  and 
therefore  that  his  second  appointment  was  in- 
valid. Hopkinson  v.  Gaunt,  14  Q.  B.  D.  592 ; 
54  L.  J.,  Q.  B.,  284 ;  33  W.  R.  522 ;  49  J.  P. 
560— D. 


5.  Wages. 

Payment  by  Weight  of  Mineral— Mode  of 
determining  Deductions — Mineral  contracted  to 
be  gotten.] — By  the  Coal  Mines  Regulation 
Act,  1872,  8.  17,  where  the  amount  of  wages 
paid  to  persons  employed  in  a  mine  to  which 
the  act  applied  depends  on  the  amount  of 
mineral  gotten  by  them,  such  persons  are  to  be 
paid  according  to  the  weight  of  the  mineral 
gotten  by  them,  subject  to  deductions  in  respect 
of,  among  other  things,  "stones  or  materials 
other  than  minerals  contracted  to  be  gotten," 
such  deductions  to  be  determined  by  the  banks- 
man or  weigher  and  check-weigher  (if  there  be 
one).  The  plaintiffs  worked  in  the  defendants' 
colliery  under  a  contract  which  declared  that  the 
"  mineral  contracted  to  be  gotten  "  should  be  coal 
of  a  certain  size,  which  was  to  be  paid  for  at 
1*.  6d.  per  ton,  that  heading  slack  should  be  paid 
for  at  Id.  per  ton,  and  that  no  other  slack  should 
be  paid  for.  The  coal  was  weighed  close  to  the 
pit's  mouth  in  the  presence  of  the  weigher  and 
check-weigher,  and  was  then  carried  to  a  distance 
and  thrown  on  a  screen,  and  the  weight  of  the 
slack  which  passed  through  the  screen  was  ascer- 
tained by  a  person  in  the  defendants'  employ. 
Wages  were  paid  according  to  the  weight  of  the 
coal  as  ascertained  at  the  pit's  mouth  after  de- 
ducting therefrom  the  weight  of  the  slack  which 
had  gone  through  the  screen.  In  an  action  to 
recover  the  difference  between  the  wages  so 
ascertained  and  wages  computed  on  the  full 
weight  of  coal  taken  by  the  check-weigher  at  the 
pit's  mouth  : — Held  (Fry,  L.  J.,  dissenting),  that 
the  mineral  contracted  to  be  gotten  within  the 
meaning  of  the  statute  was  coal,  and  that  slack 
being  a  part  of  such  coal,  deductions  in  respect 
of  it  were  unauthorised ;  that  so  much  of  the 
contract  as  related  to  such  deductions  was  void, 
and  that  the  plaintiffs  were  entitled  to  recover. 
Bourne  or  Browne  v.  Netherseal  Colliery  Com- 
pany, 20  Q.  B.  D.  606  ;  57  L.  J.,  Q.  B.  306 ;  69 
L.  T.  751 ;  36  W.  R.  405  ;  52  J.  P.  453— C.  A. 
Affirmed  14  App.  Cas.  228— H.  L.  (£.) 


1281 


MISTAKE. 


1332 


MISREPRESENTATION. 

See  FRAUD. 


MISTAKE. 

Ground  of  Rectifieation  of  Deed.]— See  Deed 
and  Bond. 

Rectification  —  Boa  judicata — Money  paid 
under  Compulsion  of  Law.] — After  money  has 
been  paid  under  a  judgment  founded  on  the 
construction  of  an  agreement,  an  action  to 
rectify  the  agreement,  on  the  ground  that  such 
construction  was  contrary  to  the  intention  of 
all  parties,  is  barred.  Caird  v.  Most,  33  Ch.  D. 
22  ;  55  L.  J.,  Ch.  854  ;  55  L.  T.  453 ;  35  W.  B. 
52 ;  5  Asp.  M.  G.  565— 0.  A. 

By  one  Party  as  to  Material  Term— Written 
Agreement.] — After  negotiations  for  a  lease  of 
certain  premises  had  been  for  some  time  pending, 
B.,  who  was  acting  in  the  matter  on  behalf  of 
G.,  the  intending  lessor,  wrote  a  letter  to  M., 
the  intended  lessee,  offering  a  lease  at  a  rent  of 
332. 10*.  yearly,  which  was  immediately  accepted 
in  writing  by  M.,  and  a  lease  at  that  rent  was 
afterwards  prepared  and  executed  by  G.  and  M. 
G.  afterwards  brought  an  action  in  the  County 
Court  to  have  the  agreement  and  lease  rectified 
by  inserting  53  J.  10*.  as  a  yearly  rent,  or  in 
the  alternative  that  the  agreement  and  lease 
might  be  cancelled : — Held,  that  the  sum  of 
$31.  10*.  had  been  inserted  by  mistake  in  B.'s 
offer,  and  in  the  subsequently-prepared  lease, 
and  that  the  offer  had  been  accepted  and  the 
lease  taken  by  M.  with  knowledge  of  the  mis- 
take ;  and  therefore  the  court  while  holding  that 
it  was  not  a  case  for  re-formation  of  the  contract, 
directed  the  lease  and  the  agreement  to  be  de- 
livered up  to  be  cancelled.  Chin  v.  McCarthy,  13 
L.  B.,  Ir.  304— Flanagan,  J. 

Effect  on  Contract  or  Deeds — Rectification  or 
Cancellation.] — Where  there  is  mutual  mistake 
in  a  deed  or  contract  the  remedy  is  to  rectify  by 
substituting  the  terms  really  agreed  to.  Where 
the  mistake  is  unilateral  the  remedy  is  not  recti- 
fication but  rescission,  but  the  court  may  give  to 
a  defendant  the  option  of  taking  what  the  plain- 
tiff meant  to  give  in  lieu  of  rescission.  Paget  v. 
Marshall,  28  Ch.  D.  255  ;  54  L.  J.,  Ch.  575  ;  61 
L.  T.  351  ;  33  W.  B.  608  ;  49  J.  P.  86— V.-C.  B. 

Plaintiff  wrote  a  letter  offering  to  the  defen- 
dant to  grant  a  lease  to  him  of  a  portion  of  a 
block  of  three  houses,  consisting  of  the  first, 
second,  third,  and  fourth  floors  of  all  three 
houses,  at  a  rent  of  500Z.  a-year.  Defendant 
wrote  in  answer,  accepting  the  offer  ;  and  a  lease 
was  executed  whereby  all  the  upper  floors  of  the 
block  were  demised  by  the  plaintiff  to  the  de- 
fendant at  a  rent  of  600Z.  Plaintiff  alleged 
that  the  first-floor  of  one  of  the  houses  was  in- 
cluded in  the  offer,  and  in  the  lease,  by  mistake, 
and  that  he  always  intended  to  reserve  such 
first-floor  for  his  own  use.  Defendant  denied 
that  he  accepted  the  offer,  or  executed  the  lease, 
under  any  mistake.  The  court  having  found 
upon  the  evidence  that  a  common  mistake  was 


not  sufficiently  proved,  but  that  mistake  on  the 
part  of  the  plaintiff  was,  gave  judgment  for 
rescission  with  an  option  to  the  defendant  to 
accept  rectification  instead,    lb. 

Bescinding  Order  by  Consent]— See  EUas  v. 
Williams,  post,  Practice  (Orders). 

Of  Law— Honey  paid  under— Recovery  back 

ot  ] — The  doctrine  that  money  paid  under  a  mis- 
take  cannot  be  recovered  back  unless  the  mistake 
be  one  of  fact,  applies  even  though  the  person 
receiving  the  payment  be  one  of  the  persons 
authorising  it  to  be  made.  Miles  v.  Scotting, 
1  C.  &  E.  491— Stephen,  J.  See  also  Hooper  ▼. 
Exeter  (Mayor),  and  Plater  v.  Burnley  (Mayor), 
post,  coL  1233. 


Honey  paid  to  Trustee  in  Liquidation— 


Repayment.] — Where  money  has  been  paid  to 
the  trustee  in  bankruptcy  or  liquidation  under 
a  mistake  whether  of  fact  or  of  law,  the  court 
will  order  it  to  be  repaid,  provided  that  no 
injury  or  injustice  accrue  to  any  one  by  reason 
of  such  order.  Simmondi,  Ex  parte,  Carnac,  In 
re,  16  Q.  B.  D.  308  ;  55  L.  J.,  Q.  B.  74  ;  54  L.  T. 
439  ;  34  W.  R.  421— C.  A. 

Where  the  money  so  paid  had  been  already 
distributed  in  dividends,  the  court  ordered  the 
money  to  be  repaid  out  of  sums  subsequently 
coming  to  the  hands  of  the  trustee.     lb. 

B.,  who  was  one  of  the  trustees  of  a  will  and 
was  also  beneficially  entitled  to  a  share  in  the 
testator's  estate,  acting  under  a  power  of  Bale 
contained  in  the  will,  sold  a  portion  of  the  estate 
and  appropriated  to  his  own  use  more  than  his 
share  of  the  purchase-money.  He  afterwards 
went  into  liquidation,  and  an  action  was  insti* 
tuted  for  the  administration  of  the  testator's 
estate.  In  the  course  of  the  action  farther 
portions  of  the  estate  were  sold,  and  out  of  the 
purchase-moneys  arising  from  these  sales  a  sum 
of  money  was  paid  to  the  trustee  in  the  liquida- 
tion of  B.  in  respect  of  his  shares  thereof: — HeM, 
that  inasmuch  as  B.  was  not  entitled  to  receive 
any  of  the  purchase-money  arising  from  the 
later  sales  until  he  had  made  good  the  sum 
which  he  had  appropriated  beyond  his  own 
share  out  of  the  proceeds  of  the  first  sales,  the 
payment  to  his  trustee  in  liquidation  was  made 
under  a  mistake  of  law ;  and,  in  analogy  to  the 
rule  in  bankruptcy  laid  down  in  James,  Ex 
parte  (9  L.  R.,  Ch.  609),  and  Simmonds,  Eft 
parte  (supra),  the  court  ordered  B.'s  trustee  in 
liquidation  to  refund  the  sum  so  paid  to  him. 
Brown,  In  re,  Dixon  v.  Brown,  32  Ch.  D.  597 ; 
55  L.  J.,  Ch.  556 ;  54  L.  T.  789— Kay,  J. 


Honey  had  and  received— Right  to  Recall- 
Privity  of  Parties.] — R.  instructed  his  agent  at 
A.  to  remit  money  to  a  bank  at  H.  The  agent 
paid  the  money  into  plaintiffs'  bank  at  A.,  with 
instructions  to  make  the  remittance.  By  mis- 
take the  money  was  paid  into  the  defendants' 
bank,  where  R.  was  a  customer,  and  being  in- 
debted to  the  defendants,  the  money  was  placed 
to  his  credit  in  reduction  of  the  debt  On  the 
following  day  the  defendants  were  informed  of 
the  mistake,  and  were  requested  to  pay  the 
money  into  the  bank  at  H.,  which  they  refused 
to  do,  on  the  ground  that  the  money  had  been 
appropriated: — Held,  that  there  was  direct 
privity  between  the  plaintiffs  and  the  defen- 


1233 


MONEY    COUNTS. 


1234 


dants,  and  that  the  plaintiffs  were  entitled  to 
recover  the  money  from  the  defendants.  Colonial 
Bank  v.  Exchange  Bank  of  Yarmouth,  11  App. 
Cat.  84 ;  55  L.  J.,  P.  C.  14  ;  54  L.  T.  256 ;  34 
W.  B.  417—  P.  C. 


MONEY   COUNTS. 


a  loan,  on  the  22nd  May  advertised  that  the 
coupon  due  on  the  1st  June  would  be  paid  in 
full ;  but  on  the  1st  June,  being  advised  by  the 
foreign  government,  they  advertised  that  the 
payment  would  be  made  less  6  per  cent.  An 
action  having  been  brought  by  a  bondholder 
against  the  agents  : — Held,  that  the  announce- 
ment was  not  an  admission  of  assets  which  gave 
the  bondholders  a  right  of  action  for  money 
had  and  received.  Henderson  v.  Rothschild, 
56  L.  J.,  Ch.  471  ;  56  L.  T.  98 ;  35  W.  R.  485— 
C.  A.    Affirming  33  Ch.  D.  459—  V.-C.  B. 


Account  stated— What  is— Where  stated— 
Authority  of  Agent.] — The  plaintiff's  solicitor, 
who  carried  on  business  within  the  jurisdiction 
of  the  Mayor's  Court,  wrote  to  the  defendant 
demanding  payment  of  11.  6s.  fid.  for  goods  sold 
and  delivered  to  him  by  the  plaintiff.  Neither 
of  the  parties  resided  or  carried  on  business,  nor 
was  the  contract  entered  into,  within  the  juris- 
diction. The  defendant,  in  a  letter  written  to 
the  plainthTs  solicitor — posted  outside,  but  re- 
ceived within  the  jurisdiction — admitted  that  he 
owed  52.  6s.  6d.  to  the  plaintiff.  The  plaintiff 
having  brought  an  action  in  the  Mayor's  Court 
to  recover  52.  6*.  6d.  on  an  account  stated,  the 
defendant  obtained  a  writ  of  prohibition  : — 
Held,  that  the  admission  of  the  defendant  and 
the  bringing  of  the  action  amounted  to  an  ac- 
count stated  ;  that  the  account  was  stated  within 
the  jurisdiction  of  the  Mayor's  Court,  and  that 
the  plaintiffs  solicitor  was  his  agent  to  receive 
the  admission  and  to  state  the  account,  and  that 
^therefore  the  Mayor's  Court  had  jurisdiction  to 
'try  the  action.  Grundy  v.  Townsend,  36  W.  R. 
Wl-C.A. 

*  icy  had  and  Beoeived — Compulsory  Pay- 
'  ^nt— Overpayment  of  Water-rate.  1 — The  de- 
fendants, as  sanitary  authority  for  the  borough 
of  B.,  had  demanded  from  the  plaintiff,  and  the 
plaintiff  had  paid,  a  water  rate  of  82.  15/.  4<Z., 
nch  rate  being  calculated  on  the  "  gross  rental " 
of  the  plaintiff's  premises.  The  plaintiff,  con- 
tending that  such  rate  ought  to  have  been  assessed 
on  the  •*  rateable  value  "  only,  brought  an  action 
in  the  county  court  to  recover  the  difference 
overpaid.  The  defendants  had  no  power  to  dis- 
train for  the  rates,  but  they  had  a  power  to  stop 
the  water  supply  for  non-payment ;  they  had 
not  stopped  tne  water  supply,  and  had  not 
threatened  to  do  so.  The  county  court  judge 
field  that  the  payment  was  not  a  voluntary  one, 
and  could  be  recovered  back,  on  the  ground  that 
the  defendants  had  a  power  to  stop  the  water 
apply :— Held,  that  the  payment  was  a  volun- 
tary one,  and  could  not  be  recovered  back. 
R*ter  v.  Burnley  (Mayor),  59  L.  T.  636 ;  36 
W.  R.  831 — D. 

—  Mistake— Voluntary  Payment— Harbour 
Dws.1— The  corporation  of  K.  exacted  harbour 
dues  from  the  plaintiff  in  respect  of  exempted 
articles.  The  plaintiff  paid  in  ignorance  of  the 
exemption :— Held,  that  the  plaintiff  was  en- 
titled to  recover  back  the  money  so  paid. 
Rooper  v.  Exeter  (Mayor),  56  L.  J.,  Q.  B.  467 

Money  In  hands  of  Agent — Announce- 
ment that  Dividend  would  be  paid— Be  vocation 
■7  Principal— Liability  of  Agent.]— Agents  in 
landon  of  a  foreign  government,  having  money 
in  their  hands  for  the  payment  of  a  dividend  on 


Duty  of  Agent  to  account  for  and  pay 

over  Honey  to  Principal.] — A  person  who  has 
received  money  as  agent  is  bound  not  only  to 
account  for  the  same,  but  also  to  pay  it  over  to 
his  principal  when  requested  so  to  do  ;  and,  in 
an  action  for  money  had  and  received,  is  charge- 
able with  interest  on  the  amount  so  received 
from  the  date  of  the  refusal  to  pay  it  over. 
Pearse  v.  Green  (1  Jac.  &  W.  135),  followed. 
Harsant  v.  Blaine,  56  L.  J.,  Q.  B.  511— C.  A. 


Waiver  of  Tort]— See   Gloucestershire 


Banking  Co.  v.  Edwards,  ante,  col.  5. 


Illegal  Consideration.]— Where  a  person 


is,  upon  conviction  of  a  criminal  offence,  re- 
quired to  find  a  surety  for  his  good  behaviour,  and 
by  agreement  with  his  surety  deposits  money 
with  him,  he  cannot  afterwards  sue  for  the 
amount  as  money  had  and  received.  The  illegal 
object  is  sufficiently  complete  where  the  deposit 
has  been  made  and  the  security  executed,  and 
the  principal  cannot,  by  repudiating  the  trans- 
action before  the  security  is  forfeited  and  the 
money  applied  as  an  indemnity,  recover  the 
money.  Herman  v.  Jeuchner  or  Zeuchner,  16 
Q.  B.  D.  561 ;  54  L.  J.,  Q.  B.  340 ;  63  L.  T.  94  ; 
33  W.  R.  606  ;  49  J.  P.  502— C.  A.  Reversing 
1  C.  &  E.  364—  Stephen,  J. 

Honey  paid  —  Goods  lawfully  seined  for 
another's  Debt]— The  sheriff  had  seized  goods 
for  the  debt  of  the  defendant,  and  the  claim  of 
the  plaintiff  to  the  goods  was  barred  upon  inter- 
pleader, but  the  defendant  had  bound  himself 
by  admission  as  between  the  parties  that  the 
goods  were  the  plaintiff's,  and  had  agreed  to  pay 
a  sum  of  money  in  consideration  of  the  seizure  : 
—Held,  that  the  plaintiff  was  entitled  to  recover 
that  sum  from  the  defendant.  Edmunds  v. 
Wallingford,  14  Q.  B.  D.  811  ;  64  L.  J.,  Q.  B. 
305  ;  52  L.  T.  720  ;  33  W.  R.  647  ;  49  J.  P.  549— 
C.  A.    Affirming  1  C.  &  B.  334— Huddleston,  B. 


Occupier   of  Part   of   Holding  — Pay- 


ment of  Bent  under  Threat  of  Distress.]— A., 

who  held  certain  lands  under  lease  at  a  rent, 
gave  possession  of  a  small  part  thereof  to  B.  on 
the  terms  that  he  was  to  hold  rent  free,  and 
make  certain  expenditure  in  buildings,  which 
was  done.  C.  afterwards  acquired  the  residue  of 
the  holding  from  A.,  subject  to  this  arrange- 
ment, and  for  many  years  paid  the  entire  rent 
reserved  by  the  lease.  One  year's  rent  being 
due,  the  landlord  brought  an  ejectment,  and  B. 
paid  the  rent  claimed  in  order  to  save  the  lands 
from  eviction  :— Held,  that  he  was  entitled 
to  recover  the  amount  from  C.  in  an  action  for 
money  paid.  Murphy  v.  Davey,  14  L.  R.,  Ir.  28 
— C.  P.  D. 


1235 


MORTGAGE. 


1236 


Voluntary  Payments.]— It  has   always 

been  clear  that  a  purely  voluntary  payment 
cannot  be  recovered  back.  Voluntary  payments 
may  be  divided  into  two  classes.  Sometimes 
money  has  been  expended  for  the  benefit  of 
another  person  under  such  circumstances  that 
an  option  is  allowed  him  to  adopt  or  decline  the 
benefit ;  in  this  case,  if  he  exercises  his  option  to 
adopt  the  benefit  he  will  be  liable  to  repay  the 
money  expended  ;  but  if  he  declines  the  benefit 
he  will  not  be  liable.  But  sometimes  the  money 
is  expended  for  the  benefit  of  another  person 
under  such  circumstances  that  he  cannot  help 
accepting  the  benefit,  in  fact  that  he  is  bound  to 
accept  it ;  in  this  case  he  has  no  opportunity  of 
exercising  any  option,  and  he  will  be  under  no 
liability.  Leigh  v.  Dickesan,  15  Q.  B.  D.  64  ;  54 
L.  J.f  Q.  B.  20  ;  52  L.  T.  791 ;  33  W.  R.  539— Per 
Lord  Esher,  M.  R. 


MONEY  PAID  INTO  COURT. 

See  PRACTICE. 


MORTGAGE. 

L  The  Contbact. 

1.  Parties,  1236. 

2.  What  Property  included  in,  1237. 

3.  Effect  of  Fraud  on.— See  Fbaud. 

IL  Equitable  Mortgage,  1241. 
HI.  Assignment  and  Tbansfeb,  1244. 
IV.  Release  and  Reconveyance,  1245. 

Y.  Several  Mortgages. 

1.  Tacking  and  Consolidation,  1246. 

2.  Priority,  1248. 

3.  Notice  of  Prior  Mortgage,  1255. 

VL  Rights  of  Mobtgagees  and  Mort- 
gagors. 

1.  Power  of  Sale,  1268. 

2.  Leases — Distresses,  1261. 

3.  Mortgagees  in  Possession,  1264. 

4.  In  other  Cases,  1265. 

VII.  Remedies    fob    Non  -  Payment     of 
Mobtgage  Money. 

1.  Foreclosure,  1266. 

a.  Parties,  1266. 

b.  Practice,  1267. 

c.  Costs,  1276. 

2.  In  other  Cases,  1277. 

VIII.  Redemption,  1279. 

IX  Payment  off,  1282. 

X.  When  Requiring  Registration.— See 
Bills  of  Sale,  I.,  1, 

XL  Devise  of  Property  subject  to 
Mortgages— Locke  King's  Act. 
— See  Will. 

XII.  Of  Ships.— See  Shipping. 


I.  THE  COHTRACT. 
1.  PARTIES. 

By  Client  to  Solicitor.] — See  Solicitor  (Re- 
lation to  Clients). 

By  Companies.] — See  Company,  IV.,  2. 

To  Building  Societies.]  —  See  Building 
Society,  II. 

Power  of  Executor  to  Mortgage.]  -See  Exe- 
cutor and  Administrator,  I.,  2. 

To  Industrial  Society.]  —  See  Industrial 
Society. 

Harried  Woman.] — When  a  married  woman 
executes  a  mortgage  there  is  no  obligation  on 
the  mortgagee  to  inquire  whether  a  settlement 
was  made  on  her  marriage.  Lloyd's  Banking 
Co.  v.  Jones,  29  Ch.  D.  221  ;  54  L.  J.,  Ch.  »31 ; 

52  L.  T.  469  ;  33  W.  R.  701— Pearson,  J. 

In  joint  Vames — Joint  Tenancy  or  Tenancy 
in  Common— Joint  Account  Clause.] — Mortgages 
in  fee  were  taken  in  the  name  of  three  sisters  as 
joint  tenants,  each  of  the  deeds  containing  a 
clause  by  which  it  was  declared  that  the  mort- 
gage money  belonged  to  the  mortgagees  on  a 
joint  account  in  equity  as  well  as  at  Law.  The 
money  advanced  on  the  security  of  the  mort- 
gages formed  part  of  the  proceeds  of  the  estate 
of  a  brother,  to  which  the  three  sisters  were, 
under  his  will,  entitled  as  tenants  in  common. 
Having  regard  to  this  fact  and  the  other  facts  in 
evidence : — Held,  that  notwithstanding  the  in- 
sertion of  the  joint  account  clause  the  mort- 
gagees were  entitled  to  the  mortgage  money  as 
tenants  in  common.  Jackson,  In  re*  Smith  t. 
Sibthorpe,  34  Ch.  D.  732  ;  56  L.  J.,  Ch.  593 ; 
66  L.  T.  562  ;  35  W.  R.  646— North,  J. 

Surviving  Partner  —  Mortgage  to  secure 
prior  Debt.  J — A  firm  consisting  of  two  partner!, 
had  secured  the  balance  of  their  current  account 
with  a  bank  by  the  deposit  of  certain  deeds. 
One  of  the  partners  died,  and  the  bank  requiring 
further  security  from  the  surviving  partner  to 
secure  the  balance  then  due  to  them  on  the  ac- 
count, the  surviving  partner  deposited  with  the 
bank  a  contract  for  the  purchase  of  some  lands 
as  further  security,  the  contract  being  part  of 
the  assets  of  the  firm  : — Held,  that  the  surviving 
partner  was  entitled  to  mortgage  the  assets  of 
the  partnership  for  a  past  debt.  Clough,  In  re, 
Bradford  Banking  Company  v.  Cure,  31  Ch.  D. 
324  ;  55  L.  J.,  Ch.  77  ;  53  L.  T.  716  ;  34  W.  R. 
96— North,  J. 

Partner— Mortgage  of  Share— Bight  of  Mort- 
gagee to  Account] — When  a  partner  mortgages 
his  share  in  the  partnership  and  the  mortgagee 
brings  an  action  to  realise  his  mortgage,  the 
proper  order  is  to  direct  an  account  of  what  the 
mortgagor's  interest  in  the  partnership  was  at 
the  date  when  the  mortgagee  proceeded  to  take 
possession  under  his  mortgage,  i.e.,  at  the  date 
of  the  writ ;  but  if  a  dissolution  of  the  partner- 
ship has  previously  taken  place,  the  date  of  the 
dissolution  is  the  date  at  which  the  account  is  to 
be  taken.     Whetham  y.  Davey,  30  Ch.  D.  574 ; 

53  L.  T.  501 ;  33  W.  R.  925— North,  J. 


1287 


MORTGAGE— The  Contract. 


1238 


Implied  Power  to  Mortgage  —Will— Trustee*.] 
—J.  W.  by  will  devised  real  property  upon  trust 
for  sale  when  and  as  the  trustees  should  think 
necessary  for  the  purposes  of  his  will.  The  pur- 
poses of  the  will  required  under  certain  circum- 
stances the  raising  of  money.  B.,  the  trustee 
of  the  will,  executed  mortgages  of  the  trust  es- 
tate, received  the  mortgage  moneys,  and  applied 
them  to  his  own  use.  Subsequently  some  of  the 
beneficiaries  under  the  will  brought  an  action 
against  the  trustees  to  recover  certain  moneys 
which  they  alleged  had  been  received  by  B.  as 
trustee  of  the  said  will.  The  moneys  so  claimed 
included  the  sums  raised  by  the  disputed  mort- 
gages. Judgment  was  recovered  in  the  said 
action  for  the  whole  sum  claimed.  Execution 
was  levied,  and  produced  1,3002.,  which  was  not 
enough  to  pay  the  whole  of  the  moneys  claimed 
other  than  the  mortgage  moneys.  New  trustees 
of  the  will  had  been  appointed,  and  the  new 
trustees  and  beneficiaries  brought  this  action 
against  the  mortgagees  to  set  aside  the  mort- 
gages. A  foreclosure  action  by  the  mortgagees 
was  heard  at  the  same  time : — Held,  that  the 
will  contained  no  implied  power  to  mortgage, 
and  that  the  mortgages  must  be  set  aside,  but 
only  on  the  terms  of  the  plaintiffs  paying  to  the 
mortgagees  a  due  proportion  of  the  1,3002.  re- 
covered from  B.  Walker  v.  Sovthall,  56  L.  T. 
88&-North,  J. 

By  Tenant  in  Tail  in  Bemainder — Base  Fee.] 
—In  1841  Lord  H.,  being  entitled  in  remainder 
(subject  to  the  existing  life  estate  of  Lord  D.)  as 
tenant  in  tail  to  two  undivided  third  parts  of 
certain  hereditaments,  mortgaged  his  interest  in 
the  property  to  M.  D.  In  1842  Lord  H.  became 
bankrupt.  At  the  date  of  his  bankruptcy  the 
statute  in  force  was  6  Geo.  4,  c.  16,  as  amended 
by  the  Fines  and  Recoveries  Act  (3  &  4  Will.  4, 
c  74).  No  disentailing  deed  was  executed  by 
the  commissioners  in  bankruptcy  pursuant  to 
a  64  of  that  statute ;  but  in  1872  Lord  H. 
executed  a  disentailing  deed.  In  1878  Lord  D., 
the  tenant  for  life,  died.  The  plaintiff  was  a 
sub-mortgagee  from  M.  D.,  and  brought  this 
action  to  realise  his  security  : — Held,  that  the 
mortgage  by  Lord  H.,  the  tenant  in  tail  in  re- 
mainder, conferred  upon  the  grantee,  not  merely 
an  estate  for  the  life  of  the  grantor,  but  a  base 
fee,  voidable  by  the  entry  of  the  issue  in  tail ; 
that,  notwithstanding  the  intervening  bank- 
ruptcy, the  subsequent  disentailing  deed  by  the 
tenant  in  tail  operated  to  confirm  the  base  fee ; 
and  that,  therefore,  the  plaintiff  was  entitled 
under  his  security,  to  a  base  fee,  to  continue  so 
long  as  there  should  be  issue  of  Lord  H.  who 
would  have  succeeded  under  the  entail.  Hankey 
v.  Mart  in,  49  L.  T.  560— Kay,  J. 


2.  WHAT  PROPERTY  INCLUDED  IN. 

"Fixtures"— What  are.]— A  house  fitted  up 
for  and  intended  to  be  used  as  a  club  was  mort- 
gaged with  all  fixtures  therein  : — Held,  that  in 
determining  what  articles  were  included  as  "  fix- 
tures, •*  regard  must  be  had  to  the  intentions  of 
the  parties,  the  one  in  mortgaging  and  the 
other  in  taking  a  security  for  the  sum  advanced ; 
and  that  such  things  as  were  substantially  part 
of  the  house  so  that  they  could  not  be  removed 
without  depriving  the  house  of  what  was  in- 


tended to  be  used  with  it  must  be  regarded  as 
fixtures.  Smith  v.  Maclure,  32  W.  R.  459— 
Pearson,  J. 


lease  by  Mortgagor  after  Mortgage — 


Bights  of  Tenant.  ] — A  mortgagor  in  possession 
of  premises  let  them  to  a  tenant  who  brought  on 
to  them  certain  trade  fixtures.  The  mortgagee 
subsequently  entered  and  sold  the  premises  under 
the  power  of  sale  contained  in  the  mortgage  : — 
Held,  that  the  fixtures  did  not  pass  under  the 
mortgage,  but  remained  the  property  of  the 
tenant.  Sanders  v.  Davis,  15  Q.  B.  D.  218  ;  54 
L.  J.,  Q.  B.  576  ;  33  W.  R.  655— D. 


Belts  connecting  Machinery.] — By  a 


registered  deed  made  in  1875,  the  owners  of  a 
mill  mortgaged  in  fee  to  the  plaintiffs,  the  mill, 
together  with  all  the  engines,  plant,  machinery, 
and  gear  described  in  the  schedule.  The  schedule 
included  certain  driving  belts  which  connected 
the  power  machinery  with  certain  machines, 
which  were  so  affixed  as  to  be  part  of  the  realty. 
The  machines  could  not  be  worked  without  the 
belts,  which  would  only  fit  other  machines  of 
nearly  the  same  size.  These  belts  were  passed 
round  the  shafting  and  then  laced  together  and 
could  not  be  removed  from  the  shafting  without 
being  unlaced.  They  could  be  slipped  off  the 
machines  when  the  machines  and  shafting  were 
not  in  motion.     The  mortgage  contained  no 

g)wer  to  deal  with  the  belts  separately  from  the 
eehold.  The  defendant,  a  trustee  in  bankruptcy 
of  one  of  the  mortgagors,  removed  the  belts.  In 
an  action  against  him  by  the  plaintiffs  to  recover 
the  value  : — Held,  that  the  belts  being  essential 
parts  of  the  fixed  machines  formed  part  of  the 
realty,  and  as  such  passed  under  the  mortgage 
deed  which,  therefore,  did  not  require  registra- 
tion under  the  Bills  of  Sale  Act,  1854.  Sheffield 
and  South  Yorkshire  Permanent  Building  /Sfo- 
ciety  v.  Harrison,  15  Q.  B.  D.  358 ;  54  L.  J., 
Q.  B.  15  ;  51  L.  T.  649  ;  33  W.  R.  144— C.  A. 


Trade  Machinery.] — A  banking  company 


entered  into  an  agreement  dated  the  29th  May, 
1886,  to  sell  certain  paper-mills  and  machinery 
to  the  L.  Company  for  20,0002.  to  be  paid  by  in- 
stalments. By  clause  2  of  the  agreement  it  was 
provided  that  upon  payment  of  the  first  two 
instalments  the  bank  should  convey  the  premises 
to  the  L.  Company,  upon  their  executing  a  mort- 
gage for  the  balance  of  the  purchase  money,  and 
that  the  mortgage  should  contain  a  clause 
enabling  the  bank,  in  case  the  business  of  the 
L.  Company  should  be  suspended,  to  re-enter 
and  take  possession  of  the  premises,  and  of 
everything  which  should  have  been  built  or 
placed  thereon,  and  which  should  not  require 
registration  within  the  Bills  of  Sale  Act,  1878, 
and  to  hold  the  same  for  their  own  use  and 
benefit  absolutely,  but  without  prejudice  to  the 
liability  of  the  L.  company  for  the  unpaid  balance 
of  the  purchase  money.  This  agreement  was  not 
registered  as  a  bill  of  sale.  The  first  two  instal- 
ments of  the  purchase  money  were  paid,  but  no 
conveyance  or  mortgage  of  the  property  was 
executed  in  pursuance  of  the  agreement.  The 
L.  Company  entered  into  and  held  possession  of 
the  property  until  a  winding-up  order  was  made 
on  the  7th  February,  1887.  The  bank  thereupon 
re-entered  on  the  property.  The  official  liqui- 
dator of  the  L.  Company  asked  by  summons  for 
delivery  up  of  a  paper-making  machine  and  all 


1289 


MORTGAGE— The  Contract. 


1240 


other  trade  machinery  attached  to  the  mills. 
The  bank  claimed  possession  of  the  fixtures  and 
trade  machinery  under  their  vendors'  lien : — 
Held,  that  the  position  of  the  parties  under  the 
agreement  was  the  same  as  if  a  conveyance  and 
mortgage  of  the  property  had  been  actually 
executed ;  and  that  the  agreement  to  mortgage 
did  not  extend  to  any  property  which  required 
registration  under  the  Bills  of  Sale  Acts,  and  the 
trade  machinery  was  therefore  not  included  in 
the  security;  and  must  be  delivered  up  to  the 
liquidator  of  the  L.  Company,  but  in  other  re- 
spects the  agreement  remained  valid.  London 
and  Lancashire  Paper  Mills  Company,  In  re. 
08  L.  T.  798— North,  J. 


First   and    Second    Mortgagees.]— The 


8.  company  carried  on  the  business  of  manufac- 
turing zinc  and  spelter,  sulphuric  acid,  and  zinc 
oxide  on  leasehold  premises.  They  had  erected 
a  number  of  cupola  and  other  furnaces  for  the 
purposes  of  their  manufacture,  which  as  between 
them  and  their  landlord,  were  admitted  to  be 
trade  fixtures.  In  1880  the  company  conveyed 
the  land  and  buildings  comprised  in  its  lease  to 
trustees  for  debenture  holders  upon  trust,  to 
permit  the  company  to  carry  on  business  until 
default  in  payment  of  the  debentures  or  winding- 
up,  and  then  to  sell.  In  1883  the  company  exe- 
cuted a  second  mortgage  to  trustees,  for  a  second 
set  of  debenture  holders,  which  comprised, 
besides  the  land  and  buildings,  all  stock-in-trade, 
stock  of  ores,  and  loose  plant  and  material. 
It  appeared  that  in  the  course  of  smelting  metals 
for  the  company's  business,  small  quantities  of 
gold  and  silver  were  given  off  in  the  form  of 
vapour,  and  became  imbedded  in  the  bricks 
lining  the  furnaces.  The  company  having  been 
ordered  to  be  wound  up,  the  trustees  of  the  first 
mortgage  deed  entered  and  sold.  The  second 
mortgagees  took  out  a  summons  that  they 
might  be  allowed  to  enter,  and  remove  the  gold, 
silver,  and  other  metal  embedded  in  the  said 
bricks,  claiming  that  it  was  included  in  their 
mortgage  and  not  in  the  first.  It  was  admitted 
that  the  metals  could  not  be  extracted  without 
pulling  down  the  furnaces  and  pounding  up 
some  of  the  bricks  : — Held,  that  the  doctrine  of 
trade  fixtures  has  no  application  as  between 
mortgagee  and  mortgagor,  that  whatever  might 
have  been  the  case  between  landlord  and  tenant, 
the  mortgagee  was  entitled  to  everything  which 
his  mortgagor,  intentionally  or  not,  for  trade 
fixtures  or  otherwise,  had  fixed  to  the  mortgaged 
premises,  and  that  the  summons  must  be  dis- 
missed. Tottenham  v.  Sioansea  Zinc  Ore  Com- 
pany, 52  L.  T.  738— Pearson,  J. 


Mortgage  by  Sub-demise.]— Words  which 


are  sufficient  when  used  in  a  conveyance  in  fee 
to  pass  trade  fixtures,  are  also  sufficient  to  pass 
them  when  used  in  a  demise.  Southport  Bank- 
ing- Company  v.  Thompson,  37  Ch.  D.  64  ;  57 
L.  J.,  Ch.  114  ;  68  L.  T.  143 ;  36  W.  R.  113— 
C.  A. 

By  a  mortgage  by  sub-demise,  a  corn-mill  and 
other  leasehold  premises,  together  with  certain 
fixtures  specifically  mentioned,  and  constituting 
the  motive  power  of  the  mill,  were  conveyed  by 
sub-demise  to  the  mortgagees,  to  secure  a  sum 
due  to  them  by  the  mortgagors.  The  deed  con- 
tained the  following  general  words : — "  Together 
with  all  buildings,  fixtures,  rights,  lights,  ease- 
ments,"  &c. : — Held,  that  the  word  "  fixtures " 


in  the  general  words  was  not  restricted  to  fixtures 
ejusdem  generis  with  those  previously  specifi- 
cally mentioned,  but  was  intended  to  extend 
and  enlarge  that  class  ;  and  that,  therefore,  the 
trade  fixtures  in  the  mill  passed  by  the  sub- 
demise  to  the  mortgagees.  The  observations  of 
Blackburn,  J.,  in  Hawtry  v.  Butlin  (8  L.  &, 
Q.  B.  293),  explained,    il. 

Parcels  —  Description  —  General  Words  — 
Copyholds  passing  with  Freeholds.]— A  mort- 
gage was  expressed  to  comprise  by  way  of  grant 
in  fee  "all  and  every  the  estate,  right,  title, 
property,  and  interest  of  the  mortgagor  of  and 
in  all  and  every  those  two  fields  or  parcels  of 
land,  containing  together  about  twenty-two  acres 
or  thereabouts,  situate  at  and  abutting  upon  the 
main  road  at "  H.,  and  "  bounded  upon  one  side 
by  "  B.  Lane,  "  and  also  of  and  in  all  and  every 
other,  if  any.  the  lands,  hereditaments,  and 
premises  at  H.  aforesaid  of,  in,  or  to  which  the 
mortgagor  hath  any  estate,  right,  title,  property, 
or  interest."  All  of  the  mortgagor's  property 
at  H.  was  freehold,  except  a  strip  of  land  of 
about  three-quarters  of  an  acre  which  lay 
between  the  freeholds  and  B.  Lane,  and  which 
was  of  copyhold  tenure  : — Held,  that  the  copy- 
hold strip  passed  under  the  general  words  and 
was  included  in  the  mortgage.  Bvoke  v.  Ztt- 
sinqton  (2  Kay  &  J.  763),  and  Cromvto*  t. 
Jarratt  (30  Ch.  D.  298)  distinguished.  Early*. 
Rathbone,  57  L.  J.,  Ch.  652  ;  68  L.  T.  517— 
Eekewich,  J. 

Semble,  having  regard  to  the  position  of  the 
property  and  the  description  in  the  deed,  the 
copyhold  strip  was  included  in  the  parcels  them- 
selves,   lb. 

After  -  acquired  Property  —  Uncertainty  — 
Divisible  Agreement  —  Property  under  say 
Settlement  or  Will.] — A  mortgagor  by  deed 
assigned  to  the  mortgagee  all  his  household  goods 
and  farming  stock,  and  "  also  all  moneys  of  or 
to  which  he  then  was  or  might  during  the 
security  become  entitled,  under  any  settlement, 
will  or  other  document,  either  in  his  own  right, 
or  as  the  devisee,  legatee,  or  next  of  kin  of  any 
person  ;  "  and  also  all  real  and  personal  property 
"of,  in,  or  to  which  he  was  or  during  that 
security  should  become  beneficially  seised,  pos- 
sessed, entitled,  or  interested,  for  any  vested, 
contingent,  or  possible  estate  or  interest."  The 
mortgagor  afterwards  became  entitled  under  ft 
will  to  a  share  of  the  personal  estate  of  the 
testator : — Held,  that  the  assignment  of  after- 
acquired  property  was  divisible ;  and  that 
although  the  general  assignment  of  all  property 
to  which  the  mortgagor  might  become  entitled 
might  be  too  wide,  as  to  which  the  court  gave  no 
decision,  the  assignment  for  valuable  considera- 
tion of  all  moneys  to  which  he  should  become 
entitled  under  any  will  operated  as  a  contract 
which  the  court  would  enforce,  and  that  the  share 
of  the  personal  estate  of  the  testator  was  accord- 
ingly included  in  the  mortgagor's  security. 
Belding  v.  Read  (3  H.  &  C.  955)  questioned. 
Clarke,  In  re,  Coombe  v.  Carter,  36  Ch,  D.  348  ; 
56  L.  J.,  Ch.  981 ;  57  L.  T.  823  ;  36  W.  R.  293- 
C.  A. 

When  Goodwill  passes— Compensation— Agree- 
ment for  Personal  Compensation.]— C.  was  the 
occupier  of  a  house  under  a  lease,  and  carne^^ 
the  business  of  a  tailor  there.    In  September. 


1241 


MORTGAGE— Equitable  Mortgage. 


1242 


1880,  the  Metropolitan  Board  of  Works  gave  him 
notice  to  treat  for  the  purchase  of  his  interest  in 
the  premises.  C.  sent  a  claim  for  655?.  for  the 
ralne  of  the  lease,  damage  to  trade,  costs  of  re- 
moval and  fixtures.  In  March,  1881,  the  Board, 
by  their  solicitor,  wrote  offering  C.  400?.  in  full 
discharge  of  all  the  items  of  his  claim.  C.'s 
solicitor  wrote  in  reply  that  he  would  be  willing 
to  advise  his  client  to  accept  400?.,  provided  that 
the  leasehold  interest  was  assessed  at  150?.,  as 
they  might  have  some  difficulty  in  giving  a 
proper  assignment,  and  the  money  might  have  to 
be  paid  into  court ;  and  continued,  "  I,  however, 
dont  want  to  prejudice  my  client's  personal 
compensation  ;  and  as  it  may  never  reach  him,  I 
am  inclined  not  to  insist  on  what  I  should  think 
was  the  fall  value."  The  Board  at  first  replied 
that  they  could  not  agree  to  this ;  but  after 
receiving  a  letter  from  C.'s  solicitor  urging  them 
to  lodge  the  warrant,  and  stating  that  the  claim 
for  the  leasehold  interest  was  on  behalf  of  C.  and 
his  mortgagee,  they  wrote  to  C.'s  solicitor  that 
if  C.  would  accept  400?.  in  settlement,  they 
would  consent  to  apportion  150?.  to  the  lease- 
hold, and  250?.  to  the  trade  damage  and  other 
items  of  claim ;  C.  agreed  to  these  terms.  C.  had 
mortgaged  his  lease,  the  mortgagee  had  disap- 
peared, and  C.  was  unable  to  produce  the  lease 
or  to  make  out  a  title.  The  Board  declined  to 
pay  him  any  part  of  the  400?.  C.  brought  this 
action  for  sped  fie  performance.  After  the  action 
was  brought  the  Board  paid  the  whole  sum  into 
court.  It  was  contended  on  behalf  of  the  Board 
that  tiie  260?.  was  intended  to  cover  compensa- 
tion m  respect  of  the  goodwill  of  the  business,  in 
which  the  mortgagee  would  have  an  interest : — 
Held,  there  was  an  express  agreement  that  250?. 
abonld  be  paid  to  C.  personally  as  occupier,  and 
that  although  in  some  cases  the  goodwill  of  trade 
premises  passes  to  a  mortgagee,  that  does  not 
apply  to  the  case  when  the  goodwill  depends  on 
the  personal  skill  of  the  owner.  Cooper  v.  Metro- 
piUan  Board  of  Works,  25  Ch.  D.  472  ;  53  L.  J., 
Ch.  109 ;  50  L.  T.  602  ;  32  W.  B.  709— C.  A. 


II.    EQUITABLE  H0BTGAGE. 

Oral  Promise — Subsequent  Oral  Direction  to 
h»ld  Title  Deeds  as  Security— Statute  of  Frauds 
—Part  Performance.] — The  bankrupt,  being  in- 
debted to  a  banking  company,  made  an  oral 
promise  to  the  directors  to  give  them,  when 
required,  security  for  the  debt.  He  was  then 
entitled  to  a  reversionary  interest  in  one-fifth  of 
alarm,  to  come  into  possession  on  the  death  of 
his  mother,  who  was  tenant  for  life,  and  who 
held  the  title  deeds.  The  mother  afterwards  died, 
and  the  title  deeds  came  into  the  possession  of 
the  respondent,  who  was  manager  of  the  bank, 
and  who  was  also  entitled  to  one-fifth  of  the 
property.  The  respondent  told  the  bankrupt 
that  he  had  possession  of  the  deeds,  and  that  he 
held  his  (the  bankrupt's)  one-fifth  for  the  bank. 
The  bankrupt  expressed  his  assent : — Held,  that 
the  company  had  not  a  valid  equitable  mortgage 
of  the  bankrupt's  share  in  the  farm,  for  there 
was  no  memorandum  in  writing  to  satisfy  the 
Statute  of  Frauds,  and  the  conversation  which 
took  place  between  the  bankrupt  and  the  re- 
spondent as  to  the  custody  of  the  deeds,  not  being 
followed  by  any  act  which  altered  the  legal 
position  of  the  parties,  was  not  such  a  part 


performance  of  the  oral  promise  to  give  security 
as  would  exclude  the  operation  of  the  statute. 
Broderick,  Ex  parte.  Beet  ham,  lib  re,  18  Q.  B. 
D.  766  ;  56  L.  J.,  Q.  B.  635 ;  35  W.  B.  613— 
C.  A. 

Agreement  to  Charge — Power  of  Attorney.] — 

De  T.  being  given  up  to  the  authorities  of  a 
foreign  country,  under  an  extradition  treaty,  to 
be  tried  on  a  charge  of  murder,  assigned  all  his 
property  to  P.,  and  executed  a  general  power  of 
attorney  in  favour  of  P.  and  T.  The  object  of 
these  instruments  was,  as  the  court  held,  to 
enable  money  to  be  raised  for  his  defence.  T. 
was  co-trustee  with  the  plaintiff  of  a  marriage 
settlement,  and  proposed  to  him  that  Consols  be- 
longing to  the  trust  should  be  sold  out,  and  the 
proceeds  advanced  on  the  security  of  a  charge  on 
De  T.'s  property.  The  plaintiff  assented,  and  the 
Consols  were  sold  and  the  proceeds  paid  to  T.f 
who  produced  to  the  plaintiff  a  document  pur- 
porting to  be  a  memorandum  of  deposit  of  the 
assignment  and  power  of  attorney,  and  an  equit- 
able charge  to  secure  the  advance.  The  Court 
held  on  the  evidence  that  P.  knew  of  the  charge, 
and  either  actually  authorised  it  or  left  T.  to  do 
as  he  liked : — Held,  that  the  money  had  been 
advanced  upon  the  faith  of  an  agreement  to 
charge  the  property  of  De  T.,  that  such  an  agree- 
ment was  within  the  powers  of  P.  and  T.,  and 
that  if  the  agreement  had  not  been  fully  carried 
out,  the  plaintiff  was  entitled  to  have  the  charge 
carried  into  effect.  Parish  v.  Poole,  53  L.  T.  35 
— North,  J.    Affirmed  in  C.  A. 

Contract  to  Create — Advance — Possession  of 
Deeds — Evidence.] — In  1878  A.  entered  into  a 
contract  for  the  sale  to  him  of  two  freehold 
houses  at  the  price  of  650?.  The  deposit  of  50?. 
was  paid  to  him,  and  360?.,  part  of  the  balance, 
was  obtained  from  his  niece  B.,  to  whom  he 
gave  his  I.  O.  U.  On  the  21st  August,  1878,  the 
wife  of  A.,  by  his  direction,  wrote  to  B.  as. 
follows :  "  A.  bought  two  houses  yesterday,  and 
he  is  going  to  have  them  settled  and  signed  in 
your  name,  and  give  them  to  you.  I  send  you 
the  conditions  of  sale  for  you  to  look  at,  and  I 

should  like  you  to  come  and  see  A Bring 

your  bank  book  with  you,  as  what  you  have 
might  as  well  go  into  them  as  for  us  to  pay 
interest.  It  is  all  right,  I  can  assure  you.  I 
sent  the  50?.  by  cheque  last  night,  on  deposit." 
On  the  25th  October,  1878,  the  two  houses  were 
duly  conveyed  to  A.,  and  he  directed  his  wife  to 
hand  over  the  title  deeds  to  B.,  and  he  also  said 
to  his  wife  that  the  deeds  belonged  to  B.,  and 
were  of  no  use  to  his  wife.  The  deeds  were  sent 
to  B.,  by  A.'s  wife.  Subsequently  A.  died  intes- 
tate, and  his  eldest  brother  and  heir-at-law  com- 
menced an  action  against  B.,  claiming  a  decla- 
ration that  he,  the  plaintiff,  was  entitled  to  the 
rents  and  profits  of  the  two  houses  and  the  de- 
livery up  of  the  title  deeds  : — Held,  that  there 
was  evidence  of  an  intention  on  the  part  of  A.  to 
give  the  property  to  B.  ;  but  that  no  gift  of  it 
had  in  point  of  law  been  made  ;  but  held,  that 
there  was  sufficient  evidence  of  a  contract  to 
create  an  equitable  mortgage  in  favour  of  B., 
and  upon  which  the  possession  of  the  title  deeds 
by  B.  originated  ;  and  that  there  should  be  a 
redemption  decree  upon  that  footing,  the  costs  of 
B.  being  added  to  her  security.  MoMahon,  In 
re,  MoMahon  v.  MoMahon,  55  L.  T.  763 — 
Chitty,  J. 


1243 


MORTGAGE — Assignment  and  Transfer. 


1244 


Conveyancing  Act,  1881 — Sale  under  Power — 
Power  to  convey  Legal  Estate.] — An  equitable 
mortgagee  by  deed  who  sells  in  exercise  of  the 
power  of  sale  conferred  by  the  Conveyancing 
Act,  1881,  cannot  convey  the  legal  estate  vested 
in  the  mortgagor.  Hodson  and  Howes,  In  re, 
35  Ch.  D.  668  ;  56  L.  J.,  Ch.  755  ;  56  L.  T.  837  ; 
35  W.  R.  553— C.  A. 


Sale  instead  of  Foreclosure.] — An  equit- 


able mortgagee  by  deposit  of  deeds  is  entitled 
under  s.  25,  sub-s.  2  of  the  Conveyancing  Act, 
1881,  for  an  order  for  sale  instead  of  foreclosure, 
although  there  is  no  memorandum  of  the  charge 
and  no  agreement  by  the  mortgagor  to  execute  a 
legal  mortgage.  Oldham  v.  Stringer,  51  L.  T. 
895  ;  33  W.  R.  251— Kay,  J. 


Account — Order  for  Sale,  but  Sale  not  to 


take  place  until  three  months  after  Certificate.} 

— Where  an  equitable  mortgagee  by  deposit  oi 
deeds  applied,  under  s.  25,  sub-s.  2  of  the  Con- 
veyancing Act,  1881,  for  an  order  for  sale  in- 
stead of  foreclosure,  there  being  a  memorandum 
of  the  charge,  and  an  agreement  by  the  mort- 
gagor to  execute  a  legal  mortgage,  the  court 
made  an  order  for  sale  of  the  property,  such 
sale  not  to  take  place  until  three  months  after 
the  chief  clerk's  certificate,  as  to  the  amount 
due  to  the  plaintiff,  should  be  filed ;  but  re- 
fused to  order  an  immediate  sale  after  such 
certificate.  Green  v.  Biggs,  52  L.  T.  680 — 
Kay,  J. 

Priority — Collateral  Security  by  Bond — Judg- 
ment.] —  When  an  equitable  mortgagee,  by 
deposit  of  title  deeds,  took  a  bond  to  secure  the 
same  debt,  and  entered  up  judgment  thereon, 
which  he  afterwards  registered  as  a  mortgage 
against  the  lands  : — Held,  that  he  did  not  thereby 
forfeit  his  security  by  equitable  mortgage,  or 
defeat  its  priority.  Jennings'  Estate,  In  re,  L.  R., 
Ir.  277— Flanagan,  J. 

Garnishee  Order.] — An  equitable  charge 

given  before  a  garnishee  order  is  obtained  takes 
priority  of  the  order,  even  in  the  absence  of 
notice  of  the  charge.  Badeley  v.  Consolidated 
Bank,  88  Ch.  D.  238  ;  57  L.  J.,  Ch.  468  ;  59  L.  T. 
419 ;  36  W.  R.  745— C.  A. 

Invalid  Transfer  of  Charge— Bight  to  Deed.] 

— An  equitable  mortgagee  by  deposit  of  a  deed 
cannot  pass  his  interest  in  the  property  by  a 
parol  voluntary  gift  accompanied  by  delivery  of 
the  deed  ;  and  as  his  interest  in  the  deed  is  only 
incidental  to  his  interest  in  the  mortgage,  the 
donee  of  the  deed  has  no  right  to  retain  it. 
Richardson,  In  re,  Shillito  v.  Hobson,  30  Ch.  D. 
396  ;  55  L.  J.,  Ch.  741 ;  53  L.  T.  746  ;  34  W.  B. 
286— C.  A. 

Cancellation— letter  of  Deposit— Subsequently 
Registered  Settlement — Notice.] — M.,  being  en- 
titled to  the  lessee's  interest  in  certain  lands  at 
C,  in  1868  deposited,  inter  alia,  the  title-deeds 
with  a  bank,  to  secure  any  balance  due  or  to 
become  due,  accompanied  by  a  letter  of  deposit. 
On  the  21st  November,  1870,  he  wrote  to  the 
manager  of  the  bank,  0.,  asking  for  the  title- 
deeds  of  C.  in  exchange  for  other  securities,  and 
stating  that  he  had  agreed  to  put  C.  in  settle- 
ment on  his  marriage  ;  and  at  the  same  time  he 
deposited  other  securities  with  0.  on  behalf  of 


the  bank.    0.  thereupon  drew  two  lines  through 
the  memorandum  of  1878  in  the  deposit  book ; 
and  wrote  at  foot  of  the  entry,  "  Annexed  list 
cancelled,  and  new  ones  substituted."   The  bank, 
however,  refused  to  give  up  the  deeds  of  C.  On 
the  occasion  of  his  marriage,  M.  executed  a 
settlement,  dated  the  24th  November,  1870,  and 
registered  on  the  8th  February,  1871,  charging 
C.  with  a  sum  of  3 ,000 J.,  which,  subject  to  life 
interests  for  himself  and  his  wife,  was  settled  in 
trust  for  the  children  of  the  marriage.    M.,  who 
was  a  solicitor,  drew  the  settlement,  and  was  the 
only  solicitor  in  the  transaction.    Subsequently, 
in  1871,  M.  gave  the   bank  a  further  letter  of 
deposit  in  which  the  title-deeds  of  C.  were  in- 
cluded.    None  of  the  letters  of  deposit  were 
registered.    After  the  settlement  M.  paid  in,  to 
the  credit  of  his  current  account  with  the  bank, 
sums  of  money  exceeding  the  amount  due  from 
him  at  the  date  of  the  settlement.    In  a  paper, 
pinned  to  the  letter  of  deposit  of  1870, 0.  made 
a  memorandum  stating  that  it  was  cancelled 
by  the  letter  of  deposit  of  1871,  which  was  taken, 
fearing  any  irregularity  in  the  former  trans- 
action.   O.  deposed  that  he  did  not  intend  to 
give  up  the  security  of  the  deposit  of  1868 ;  that 
he  had  a  general  authority  to  substitute  one 
security  for  another,  but  not  to  give  up  a  security 
altogether.    M.  and  his  wife  afterwards  died, 
leaving  one  child,  issue  of  the  marriage:  M. 
being  at  the  time  of  his  death  indebted  to  the 
bank,  who  claimed   priority   over  the  charge 
created  by  the  settlement: — Held,  1.  That  the 
deposit  of  1868  was  not  cancelled,  but  was  still  a 
subsisting  security  in  favour  of  the  bank.   2. 
That  the  bank  had  notice  of  the  settlement  of 
the  24th  November,  1870 ;  and  consequently  all 
subsequent  advances  made  by  them  were  post- 
poned to  the  charge  of  3,0002.     3.  That  the  issue 
of  the  marriage  was  not  affected  with  notice  of 
the  equitable  mortgage  to  the  bank.    M&eta- 
mara's  Estate,  13  L.  £.,  Ir.  158— Land  Judges. 


III.    ASSIGNMENT  AND  TRANSFER. 

Assignment — Power  to  Ezeento  to  a  Fermi 
other  than  Mortgagor.] — A  building  society  is 
not  precluded  by  the  provisions  of  the  Building 
Societies  Act,  1874  (37  &  38  Vict,  c  42),  from 
exercising  the  ordinary  right  of  a  mortgagee  to 
transfer  his  mortgage,  by  way  of  assignment,  to 
any  third  person.  Ulster  Permanent  Birildiag 
Society  v.  Olenton,  21  L.  R.,  Ir.  124— Monroe,  J. 


Sights  of  Assignee  —  Beceipt  endorsed  far 
Larger  Sum  than  advanced/] — On  the  10th  of 
February,  1879,  the  plaintiffs  mortgaged  to  B. 
for  2502.  their  equitable  interests  in  a  sum  of 
stock,  and  also  certain  policies  of  assurance. 
By  the  mortgage  deed  they  acknowledged  the 
receipt  of  250/.,  and  they  also  signed  a  receipt 
for  that  sum  indorsed  on  the  mortgage  deed.  On 
the  11th  of  March,  1879,  B.  transferred  the 
mortgage  to  H.,  who  gave  full  value  for  it  a»  a 
mortgage  for  250Z.,  and  had  no  notice  that  the 
plaintiffs   had   not  received   that  sum.     The 

Elaintiffs  brought  their  action  alleging  that  they 
ad  only  received  912.  instead  of  2502.,  and 
asking  redemption  on  payment  with  interest  of 
what  they  had  actually  received.  The  court 
considered  that  the  evidence  would  have  been 
sufficient  to  entitle  the  plaintiffs  to  a  judgment 


1245 


MOKTGAGE— Several  Mortgages. 


1246 


on  that  footing  as  against  B.  : — Bat  held,  that  as 
against  H.,  who  had  no  notice  that  the  whole 
250/.  had  not  been  advanced,  the  account  mast 
be  taken  on  the  footing  of  its  having  been  ad- 
vanced ;  for  that,  in  the  absence  of  any  circum- 
stances to  cause  suspicion,  he  was  entitled  to 
rely  on  the  acknowledgment  in  the  mortgage 
deed  and  the  indorsed  receipt,  and  had  a  better 
equity  than  the  plaintiffs,  who,  by  leaving  the 
documents  in  the  hands  of  B.,  had  enabled  him 
to  commit  a  fraud.  Bickerton  v.  Walker,  31 
Ch.  D.  151  ;  55  L.  J.,  Ch.  227  ;  53  L.  T.  731  ;  34 
W.  R.  141— C.  A. 


Transfer— Sale  of  Property— Vesting  Property 
in  Purchaser — Payment  into  Court.] — A  mort- 
gage deed  gave  the  mortgagee  an  option  to  pur- 
chase in  case  the  debt  was  not  paid  on  a  day 
named.  The  trustees  in  bankruptcy  of  the 
mortgagors  sold  the  mortgaged  property.  A 
part  of  the  purchase-money  was  deposited  to 
provide  against  the  mortgage.  Pending  pro- 
ceedings on  the  part  of  the  trustees  to  set  aside 
the  mortgage  on  the  ground  of  fraudulent  pre- 
ference, an  order  was  made  that  the  money 
deposited  should  be  paid  into  court,  and  on  such 
farther  sum  being  paid  in  as  would  cover  the 
principal  and  interest  due,  and  10  per  cent 
extra,  the  mortgaged  property  should  vest  in  the 
purchaser.  Milford  Haven  Railway  and  Estate 
Company  v.  Mowatt,  28  Ch.  D.  402 ;  54  L.  J., 
Ch.  567  ;  33  W.  R.  597— Pearson,  J. 


-  Mortgagee   of  Unsound 
ante,  cols.  1159, 1160. 


Mind.]  —  See 


IV.    RELEASE  AHD  RECONVEYANCE. 

Release  by  Parol— Handing  over  Mortgage 
Deed— Absence  of  Consideration.]— By  an  in- 
denture made  in  1858,  G.  mortgagee!  to  his  father 
a  share  of  personal  estate  to  which  G.  was  en- 
titled in  reversion,  expectant  on  his  mother's 
death.  The  father  died  in  1872,  having  made 
another  son,  C,  his  executor  and  residuary 
legatee.  The  mother  died  in  1887.  C.  shortly 
afterwards  sent  a  letter  to  G.,  enclosing  the 
indenture,  and  stating  that  he  handed  it  over  to 
0.  in  compliance  with  the  wish  of  their  late 
mother.  C.  afterwards  changed  his  mind  and 
claimed  the  share  under  the  mortgage.  No  in- 
terest had  ever  been  paid  on  the  mortgage  debt 
by  G.,  and  no  acknowledgment  given  by  him  in 
respect  of  it : — Held,  that,  in  the  absence  of  any 
consideration,  the  letter,  though  coupled  with 
delivery  of  the  mortgage  deed,  was  not  an 
effectual  release,  and  was  incomplete  as  a  gift, 
and  did  not  amount  to  a  declaration  of  trust, 
and  that  C.  was  entitled  to  the  share.  Hancock, 
In  re,  Hancock  v.  Berrey,  57  L.  J.,  Ch.  793  ; 
W  L.  T.  197  ;  36  W.  R.  710— Kay,  J. 

leeou vey ance  — Deed—  Validity.]— The  ab- 
sence of  a  seal  from  deeds  of  reconveyance, 
there  being  no  evidence  that  they  had  ever  been 
tetled,  renders  them  invalid.  Sandilands,  In 
re  (6  L.  R.,  C.  P.  41 1),  considered.  National 
Provincial  Bank  of  England  v.  Jackson,  33 
Ch.  D.  1  ;  55  L.  T.  468 ;  34  W.  R.  597— C.  A. 


When  obligatory.] — Until  a  mor 


is  paid  off,  he  is  not  obliged  to  re-convey. 
v.  Waghorne,  59  L.  T.  208— Kay,  J. 


ee 
cey 


V.    SEVERAL    MORTGAGES. 
1.  TACKING    AND    CONSOLIDATION. 

Assignment  by  Purchaser  for  Value  without 
Notice,  to  Purchaser  for  Value  with  Notice.] — 
The  trustee  of  a  mortgagor  is  not  entitled  to 
avail  himself  of  the  legal  estate  for  the  purpose 
of  altering  the  priorities  of  the  mortgagees. 
Ledhrook  v.  Passman,  57  L.  J.,  Ch.  855  ;  69 
L.  T.  306— Stirling,  J. 

The  owner  of  a  farm  mortgaged  it  in  succes- 
sion to  three  persons,  the  third  mortgagee  having 
no  notice  of  the  second  mortgage.  By  a  deed 
made  between  the  mortgagor  and  P.,  in  order 
(as  was  recited)  to  stop  a  forced  sale  by  the 
mortgagees,  the  equity  of  redemption  was  con- 
veyed to  P.  upon  trust  for  sale,  with  power  to 
postpone  the  sale  and  raise  money  by  mortgage 
or  otherwise  to  pay  off  the  mortgagees,  and  the 
proceeds  were  to  be  held  by  P.  upon  trust  to 
pay  his  costs  and  expenses,  and,  after  payment 
of  the  same  and  the  mortgages,  to  pay  the 
residue  to  the  mortgagor.  P.,  having  notice  of 
the  second  mortgage,  paid  off  the  first  and  third 
out  of  his  own  moneys  and  took  a  transfer  of 
the  benefit  of  them,  and  he  subsequently  got  in 
the  legal  estate.  Upon  an  action  by  the  second 
mortgagee  for  redemption  : — Held,  that  P.  acted 
as  trustee  for  the  mortgagor,  and  that  he  was 
not  entitled  to  tack  to  the  prejudice  of  the 
second  mortgagee,  but  that  he  was  entitled  to 
add  his  costs  to  his  security.     lb. 

Second  Legal  Mortgagee  Paying  off  Equit- 
able Mortgage— Effect  on  Prior  Legal  Mort- 
gage.]— W.  was  owner  in  fee  of  certain  pro- 
perty, and  prior  to  the  1st  May,  1879,  mort- 
gaged it  by  deposit  of  title  deeds  to  secure  an 
advance  by  G.  On  the  1st  May,  1879,  W.  gave 
a  legal  mortgage  of  the  same  property  to  B.  to 
secure  a  debt  owed  by  him.  B.  at  the  time  of 
the  execution  of  the  mortgage  did  not  know  of 
the  equitable  mortgage  to  G.  In  June,  1879, 
W.  applied  to  the  defendant  to  make  an  advance 
to  pay  off  the  charge  held  by  G.  The  defendant 
advanced  the  money  ;  G.  handed  the  deeds  back 
to  W.,  who  handed  them  to  H.,  who  was  acting 
for  all  parties  ;  and  H.  in  his  turn  handed  them 
to  the  defendant.  W.  on  or  about  the  same  date 
executed  a  legal  mortgage  of  the  same  premises 
to  the  defendant  to  secure  his  advance.  This  deed 
did  not  recite  the  mortgage  of  the  1st  May  to  B., 
nor  was  the  defendant  aware  of  its  existence. 
B.  subsequently  became  insolvent,  and  his 
trustee  in  liquidation  claimed  priority  for  the 
mortgage  to  B.  of  the  1st  May,  over  that  of  June, 
1879,  to  the  defendant : — Held,  that  as  from  the 
nature  of  the  transaction  between  the  parties  it 
was  intended  that  the  defendant  should  stand 
in  the  place  of  the  equitable  mortgagee,  he  was 
entitled  to  priority  over  the  first  legal  mortgagee 
to  the  extent  of  the  amount  of  the  equitable 
mortgage.    Mason  v.  Rhodes,  53  L.  T.  322 — D. 

Third  Mortgagee  of  Part  getting  in  First 
Mortgage  of  Whole.] — See  Atherley  v.  Barnett, 
post,  col.  1253. 


1247 


MORTGAGE— Several  Mortgages. 


1248 


Trustee  Lending  Honey  without  Votioe  of 
Prior  Incumbrance.] —  A  trustee  who  has  the 
legal  estate  and  takes  from  his  cestui  que  trust 
an  assignment  of  the  equitable  interest  by  way 
of  security  for  money  advanced  to  the  cestui 
que  trust,  can  avail  himself  of  the  legal  estate  as 
a  protection  against  a  prior  incumbrance  of 
which  he  had  no  notice.  Newman  v.  Newman, 
28  Ch.  D.  674  ;  64  L.  J.,  Ch.  598  ;  52  L.  T.  422  ; 
33  W.  R.  505— North,  J. 

Building  Society— Statutory  Receipt — Succes- 
sive Incumbrancers — Right  to  call  for  Legal 
Estate.  J — H.  mortgaged  leaseholds  to  building 
societies  established  under  6  &  7  Will.  4,  c.  32,  and 
executed  a  second  mortgage  to  the  respondents. 
H.  afterwards  borrowed  a  sum  from  the  appellants, 
part  of  the  loan  being  applied  to  paying  off  the 
building  societies,  and  the  balance  being  paid 
directly  to  H.,  who  executed  a  mortgage  to  the 
appellants  to  secure  the  loan.  Upon  being  so 
paid  off  the  building  societies  indorsed  on  their 
respective  mortgages  receipts  to  the  mortgagor 
in  accordance  with  6  &  7  Will.  4,  c.  32,  s.  5,  and 
delivered  the  indorsed  deeds  with  the  title  deeds 
to  the  appellants.  Neither  the  building  societies 
nor  the  appellants  had  any  notice  of  the  respon- 
dents' mortgage.  The  respondents  having  brought 
an  action  against  the  appellants  for  foreclosure 
and  sale  : — Held,  that  the  appellants'  mortgage 
had  priority  over  the  respondents'  mortgage,  not 
only  in  respect  of  the  moneys  applied  in  paying 
off  the  building  societies,  but  also  in  respect  of 
the  balance  of  the  loan  paid  directly  to  H. 
Pease  v.  Jackson  (3  L.  R.,  Ch.  576)  and  Rabin- 
son  v.  Trevor  (12  Q.  B.  D.  423),  overruled  upon 
this  point.  Hot  king  v.  Smith,  13  App.  Cas. 
582  ;  58  L.  J.,  Ch.  367  ;  59  L.  T.  565  ;  37  W.  R. 
267— H.  L.  (E.) 

In  1865,  L.,  a  member  of  a  building  society 
established  under  6  &  7  Will.  4,  c.  32,  mortgaged 
certain  premises  to  the  society  to  secure  all 
moneys  to  become  due  from  him  under  its  rules. 
In  1868,  by  a  deed  reciting  the  first  mortgage, 
L.  mortgaged  his  interest  in  the  premises  to  the 
plaintiff.  The  first  mortgagees  received  no  notice 
of  the  second  mortgage.  In  1875,  in  pursuance 
of  a  previous  arrangement  with  L.,  the  appellants 
paid  off  the  first  mortgage,  whereupon  the  trus- 
tees of  the  society  handed  to  them  the  title- 
deeds,  and  also  the  first  mortgage-deed  indorsed 
with  a  receipt,  pursuant  to  6  &  7  Will.  4,  c.  32, 
s.  5,  and  antedated  to  the  date  of  the  arrange- 
ment. The  appellants,  who  had  no  notice  of  the 
second  mortgage,  also  made  a  further  advance 
to  L.,  whereupon  he  assigned  the  premises  to 
them  to  secure  the  whole  sum  so  paid  to  him 
and  to  the  first  mortgagees.  All  three  mort- 
gages were  duly  registered  in  the  North  Riding 
registry  in  order  of  date.  L.  filed  a  petition  for 
liquidation : — Held,  that  the  appellants  were 
entitled  to  priority  over  the  plaintiff  in  respect 
of  the  further  advance  to  L.  Pease  v.  Jackson 
(3  L.  R.f  Ch.  576)  followed  ;  Fourth  City  Mutual 
Benefit  Building  Society  v.  Williams  (14  Ch.  D. 
140)  considered — per  Baggallay,  L.  J.  Robinson 
v.  Trevor,  12  Q.  B.  D.  423  ;  53  L.  J.,  Q.  B.  85  ; 
60  L.  T.  190 ;  32  W.  R.  374— C.  A.  See  pre- 
ceding case. 

Indorsed  Receipt  by  Friendly  Society.] — T. 
mortgaged  his  property  first  to  a  friendly  society 
and  then  to  a  bank.  Afterwards  T.  applied  to  a 
building  society  for  an  advance.    The  building 


society,  without  notice  of  the  second  mortgage, 
paid  off  the  first  mortgage,  and  made  a  further 
advance  to  T.  The  friendly  society  reconveyed 
the  property  to  T.  by  means  of  a  regular  convey- 
ance, and  on  the  same  day  T.  executed  a  mort- 
gage to  the  building  society  : — Held,  that  the 
building  society  was  entitled  to  the  legal  estate 
and  to  priority  over  the  bank  for  the  whole 
advance.  Pease  v.  Jackson  (3  L.  R.,  Ch.  576) 
and  Robinson  v.  Trevor  (12  Q.  B.  D.  423) 
distinguished.  Carlisle  Banking  Company  v. 
Thompson,  28  Ch.  D.  398 ;  63  L.  T.  115 ;  33  W.  R. 
119— North,  J. 

Voluntary  Settlement  by  Mortgagor— Subse- 
quent Mortgages  of  Settled  and  other  Property.] 
— A.  B.  having  executed  a  voluntary  settlement 
of  the  W.  estate,  mortgaged  it  in  fee  to  X  Y. 
He  afterwards  mortgaged  the  Q.  estate,  and  that 
mortgage  became  vested  in  X.  Y. : — Held,  that 
X.  Y.  was  not  entitled  to  consolidate  as  against 
the  persons  claiming  under  the  voluntary  settle- 
ment the  mortgages  on  the  W.  and  Q.  estates. 
Walhamptan  Estate,  In  re,  26  Ch.  D.  391 ;  55 
L.  J.,  Ch.  1000 ;  51  L.  T.  280  ;  32  W.  B.  874— 
Kay,  J. 

Consolidation  on  Redemption.] — See  Bird  t. 
Wenn,  post,  col.  1282. 


2.  PRIORITY. 

Mortgage  of  Renewable  Leasehold— Purokts* 
of  Reversion  by  Mortgagor — Mortgage  of  Be- 
version.1 — An  ecclesiastical  lease  of  a  house  for 
a  term  of  years,  which  was  renewable  by  custom, 
though  it  contained  no  covenant  by  tne  lesson 
for  renewal,  was  mortgaged,  and  the  equity  of 
redemption  was  afterwards  assigned  for  valne. 
The  Ecclesiastical  Commissioners,  in  whom  the 
reversion  had  become  vested,  would  not  renew 
the  lease,  but  before  its  expiration  they  agreed 
to  sell  the  reversion  to  the  assignee  of  the  equity 
of  redemption.  The  conveyance  was  not  executed 
till  after  the  expiration  of  the  lease.  While  the 
negotiation  for  the  purchase  of  the  reversion  was 
in  progress  the  assignee  borrowed  3007.,  girinf 
the  lender  a  memorandum  in  writing,  which 
stated  that  the  money  was  to  be  secured  by  a 
mortgage  from  him  of  the  house  "  so  soon  as  be 
had  completed  the  enfranchisement  of  the  pro- 
perty from  the  commissioners."  The  lender  had 
no  notice  of  the  mortgage  of  the  lease :— Held, 
that  the  mortgagor  could  only  hold  the  fee 
simple  of  the  property  subject  to  the  mortgage 
of  the  lease,  and  that  he  (and  consequently  the 
lender  of  the  300Z.)  was  not  entitled  to  any  prior 
lien  on  the  property  for  the  purchase-money  of 
the  reversion,  notwithstanding  the  fact  that  the 
mortgagor  was  under  no  obligation  to  the  mort- 
gagees of  the  lease  to  obtain  a  renewal  of  it,  or 
to  purchase  the  reversion.  Leigh  v.  Burnett. 
29  Ch.  D.  231  ;  54  L.  J.,  Ch.  757  ;  52  L.  T.  458 ; 
33  W.  R.  578— Pearson,  J. 

Purchase  by  Mortgagor's  Trustee  in  Bank- 
ruptcy of  First  Mortgage.  1— A  trustee  in  bank- 
ruptcy does  not  by  purchasing  from  the  fin* 
mortgagee  of  the  bankrupt  extinguish  the  first 
mortgage  and  make  the  second  mortgagee  the 


1249 


MORTGAGE— Several  Mortgages. 


1250 


fiist  incumbrancer  on  the  estate.  Bell  v.  Sunder- 
land Building  Society,  24  Ch.  D.  618  ;  53  L.  J., 
Ch.  509 ;  49  L.  T.  555— V.-C.  B. 

Purchase  for  Value  —  Trust  to  Invert  on 
sparine  Security— Communication  to  Cestui  que 
trot] — Plaintiffs  were  trustees  of  a  settlement, 
under  which  H.  was  tenant  for  life.  P.  was 
their  solicitor.  P.,  having  trust  funds  in  hand, 
arranged  with  H.  that  a  certain  sum  should  be 
invested  on  a  mortgage.  P.  advanced  the  money 
in  his  own  name,  but  entered  it  in  his  firms 
books  as  a  loan  on  behalf  of  the  trust,  and  treated 
it  as  such  in  correspondence  with  H.  The  plain- 
tiffs were  not  told  of  the  investment.  P.  fraudu- 
lently deposited  the  mortgage  with  the  defendants 
to  secure  a  debt  of  his  firm,  the  defendants  taking 
bona  fide: — Held,  that  though  the  plaintiffs 
could  not  delegate  their  trust  so  as  to  constitute 
H.  their  agent  to  authorise  the  investment,  and 
although  P.  did  not  hold  the  fund  in  trust  for 
investment  on  any  specific  security,  the  plain- 
tiffs were  entitled  to  priority  over  the  defen- 
dants. Hartopp  v.  Huskisson,  55  L.  T.  773— 
Kekewich,  J. 

Authority  to  raise  Honey — Solicitor  and 
of  Deeds.] — The  plaintiff  exe- 
cuted a  mortgage  to  his  solicitor  believing  the 
document  to  be  an  authority  to  raise  money  on 
the  property.  The  solicitor  deposited  the  deeds 
with  8.  and  Go.  to  secure  a  present  advance  and 
appropriated  the  money : — Held,  that  S.  and 
(Six's  equity  was  prior  to  that  of  the  plaintiff. 
French  v.  Hope,  56  L.  J.,  Ch.  363  ;  56  L.  T.  57 
—Kekewich,  J. 

Grounds  on  which  Legal  Mortgage  postponed 
to  subsequent  Equitable  Security.] — The  court 
will  postpone  a  legal  mortgage  to  a  subsequent 
equitable  security :  (1)  where  the  legal  mort- 
gagee has  assisted  in  or  connived  at  the  fraud 
which  led  to  the  creation  of  the  subsequent 
equitable  estate,  of  which  assistance  or  con- 
nivance the  omission  to  use  ordinary  care  in 
inquiring  after  or  keeping  the  title-deeds  may  be 
sufficient  evidence  where  such  conduct  cannot 
otherwise  be  explained ;  or  (2)  where  the  legal 
mortgagee  has  made  the  mortgagor  his  agent 
with  authority  to  raise  money,  and  the  security 
given  for  raising  such  money  has  by  misconduct 
of  the  agent  been  represented  as  the  first  estate. 
Bat  the  court  will  not  postpone  a  legal  mort- 
gagee to  a  subsequent  equitable  mortgagee  on 
the  ground  of  any  mere  carelessness  or  want  of 
pnidence  on  the  part  of  the  legal  mortgagee. 
Northern  Counties  of  England  fflre  Insurance 
fljyaay  v.  Whipp,  post,  col.  1252. 

The  cases  where  a  prior  equitable  mortgagee 
toe  been  postponed  on  the  ground  of  negligence 
ue  cases  where  he  has  taken  no  steps  although 
he  knew  that  the  mortgagor  had  made  default 
in  performing  his  obligations,  and  his  omission 
to  take  such  steps  has  enabled  the  mortgagor 
to  commit  a  fraud  ;  but  no  case  decides  that  he 
11  to  be  postponed  because  he  has  not  taken 
precautions  against  a  future  default  by  a  mort- 
gagor who  has  not  yet,  to  the  knowledge  of  the 
mortgagee,  been  guilty  of  default.  Union  Bank 
ff  London  v.  Kent,  post,  col.  1252— Per  Fry,  L.J. 

The  rule  that  the  court  will  not  postpone  a 
legal  mortgagee  to  a  subsequent  equitable  mort- 
gagee on  the  ground  of  any  mere  carelessness  or 
want  of  prudence  does  not  apply  as  between  two 


equitable  claims.  National  Provincial  Bank  of 
England  v.  Jackson,  33  Oh.  D.  1  ;  55  L.  T.  458  ; 
84  W.  R.  697—0.  A. 

Negligence— Honey  left  in  Hands  of  Solicitor 
for  Investment — Representation  that  Honey 
advanced  on  Hortgage.] — A  client  left  moneys 
for  investment  in  the  hands  of  his  solicitors. 
The  solicitors  represented  that  the  sum  of 
11,0002.,  part  of  these  moneys,  was  invested  on 
mortgage  of  freehold  property  at  A.,  belonging 
to  a  firm,  and  the  client  made  no  further  in- 
quiry. The  solicitors  were  in  fact  the  holders 
of  a  mortgage  for  65,0002.  upon  property  X.  at 
A.,  belonging  to  the  firm,  and  they  repaid  them- 
selves 11,0002.  of  the  55,0002.  with  the  client's 
money.  The  firm  afterwards  bought  property 
T.  at  A.,  and  mortgaged  it  in  fee  to  a  bank. 
The  solicitors  released  the  firm  from  the  mort- 
gage debt  of  55,0002.  on  property  X.  and  took 
from  them  a  mortgage  for  50,0002.  on  properties 
X.  and  T.,  subsequently,  by  arrangement  with 
the  firm,  purchasing  the  equity  of  redemption 
in  both  properties,  and  selling  them  for  shares 
to  a  limited  company  into  which  the  firm  was, 
through  their  instrumentality,  converted.  These 
transactions  all  took  place  without  the  know- 
ledge of  the  client : — Held,  first,  that  the  solicitors 
must  be  treated  as  having  become  trustees  for 
the  client  of  11,0002.  out  of  the  55,0002.  secured 
by  mortgage  on  property  X. ;  and  having  im- 
properly, as  against  the  client,  given  up  that 
mortgage  in  exchange,  the  client  had  a  right 
under  the  circumstances  to  claim  a  charge  for 
11,0002.  and  interest  upon  property  Y.  (in  which 
the  legal  estate  was  outstanding)  as  well  as  upon 
property  X. : — Held,  secondly,  that  there  had 
.been  under  the  circumstances  no  such  negligence 
or  want  of  prudence  on  the  part  of  the  client  as 
to  postpone  him,  and  that  he  was  entitled  in 
priority  to  the  limited  company  to  a  charge  on 
property  T.  in  which  the  legal  estate  was  out- 
standing. Waldron  v.  Sloper  (\  Drew.  193) 
distinguished.  Vernon,  Ewens  i  Company,  In 
re,  33  Ch.  D.  402 ;  56  L.  J.,  Ch.  12  ;  65  L.  T. 
416  ;  35  W.  R.  225—C.  A. 

Deeds  asked  for.]— A  legal  mortgagee 

had  asked  for  the  deeds  which  the  mortgagor, 
who  was  his  solicitor,  made  excuses  for  not 
giving  to  him.  The  mortgagor  afterwards  de- 
posited the  deeds  with  another  mortgagee  as 
security  for  money  advanced  without  notice  of 
the  legal  mortgage  : — Held,  in  an  action  by  the 
legal  mortgagee  for  foreclosure,  that  he  had  not 
been  guilty  of  fraud  or  negligence  amounting  to 
fraud,  and  that  he  could  not  be  postponed  to 
the  mortgagee  by  deposit  by  reason  of  any  negli- 
gence short  of  that.  Held  also,  that  the  legal 
mortgagee  was  entitled  to  recover  the  deeds  from 
the  mortgagee  by  deposit,  notwithstanding  he 
was  a  purchaser  for  value  without  notice  ;  and 
that  s.  25,  8ub-s.  11,  of  the  Judicature  Act,  1873, 
did  not  alter  the  rule  of  law  on  the  subject. 
Manners  v.  Mew,  29  Ch.  D.  725  ;  64  L.  J.,  Ch. 
909  ;  53  L.  T.  84— North,  J. 

Trustee  of  Harriags  Settlement.]— In 

November,  1875,  a  husband  deposited  with 
his  bankers  the  title-deeds  of  some  leasehold 
houses,  together  with  a  memorandum  of  deposit, 
as  a  continuing  security  to  the  bankers  for  any 
overdraft  of  his  wife's  current  account  with 
them.    In   November,  1876,  he   died,   having 

S  S 


1251 


MORTGAGE— Several  Mortgages. 


1252 


bequeathed  all  his  property  to  his  wife,  and  ap-  | 
pointed  her  his  executrix.  After  his  death  the 
deeds  remained  with  the  bankers,  and  the  widow 
was  allowed  on  the  security  of  them  to  overdraw 
her  account.  In  May,  1877,  she  married  again. 
Prior  to  the  marriage  the  houses  were  assigned 
by  her  to  a  trustee  on  trust  for  herself  for  life, 
and  after  her  death  on  trust  for  an  infant  son  of 
her  first  marriage  absolutely.  Power  was  given 
to  the  trustee  to  sell  the  houses  during  the  life 
of  the  wife,  at  her  request,  and  after  her  death 
at  the  discretion  of  the  trustee.  The  trustee 
made  no  inquiry  about  the  title-deeds,  and  no 
notice  of  the  settlement  was  given  to  the 
bankers.  In  June.  1877,  the  husband  and  wife 
gave  notice  to  the  bankers  of  their  marriage, 
and  at  their  request  a  balance,  which  then  stood 
to  the  credit  of  the  wife's  current  account,  was 
transferred  to  a  new  current  account  opened  by 
the  bankers  with  the  husband.  The  deeds  re- 
mained with  the  bankers,  but  no  notice  of  the 
settlement  was  given  to  them.  In  November, 
1877,  at  the  request  of  the  bankers,  the  probate 
of  the  first  husband's  will  was  sent  to  them,  and 
at  their  request,  a  new  memorandum  of  deposit 
was,  in  January,  1878,  signed  by  the  husband 
and  wife,  making  the  deeds  a  continuing  secu- 
rity to  the  bankers  for  any  overdraft  of  the 
husband's  current  account.  In  April,  1878,  the 
wife  died.  The  deeds  were  still  with  the 
bankers,  and  at  that  time  the  husband's  current 
account  was  in  credit.  In  1883  the  trustee 
made  some  inquiries,  and  then  discovered  that 
the  deeds,  which  he  had  believed  to  be  in  the 
custody  of  the  solicitor  who  had  prepared  the 
settlement,  were  with  the  bankers.  He  then 
gave  the  bankers  notice  of  the  settlement,  and 
claimed  the  deeds.  This  was  the  first  notice 
that  the  bankers  had  had  of  the  settlement : — 
Held,  that  the  omission  of  the  trustee  to  inquire 
for  the  title-deeds  was  negligence  of  such  a 
character  as  prevented  him  from  availing  him- 
self of  the  legal  estate  to  give  him  priority  over 
the  equitable  charge  of  the  bankers,  and  that 
the  cestui  que  trust  stood  in  no  better  position. 
Held  also,  that  the  bankers  were  entitled  to 
priority  in  respect  of  the  amount  due  to  them 
on  their  security  at  the  time  when  they  received 
notice  of  the  settlement.  Lloyd's  Banking 
Company  v.  Jones,  29  Ch.  D.  221  ;  54  L.  J.,  Ch. 
931  ;  62  L.  T.  469  ;  33  W.  R.  781— Pearson,  J. 

Duty  of  Mortgagee  to  Inquire  ai  to  Settle- 
ment.] —  When  a  married  woman  executes  a 
mortgage  there  is  no  obligation  on  the  mort- 
gagee to  inquire  whether  a  settlement  was  made 
on  her  marriage.    lb. 

Mortgage   of    Building    Agreement  — 

Leases  granted  under  it — No  Notice  to  Land- 
lord.]— A  company  obtained  a  building  agree- 
ment of  a  certain  piece  of  land,  by  which  they 
covenanted  to  erect  houses  thereon,  and  as  they 
erected  houses  a  separate  lease  of  each  house 
was  to  be  granted  to  them.  They  then  executed 
a  mortgage  deed  by  which  they  gave  to  the 
mortgagees  an  equitable  mortgage  of  their  in- 
terest under  the  building  agreement,  and  cove- 
nanted to  give  them  legal  mortgages  by  demise 
of  the  houses  when  the  leases  had  been  granted. 
The  mortgagees  did  not  give  notice  of  their 
mortgage  to  the  freeholder.  Afterwards  the 
company  obtained  leases  of  certain  houses  which 
they  had  erected,  and  deposited  them  with  their 


bankers  by  way  of  equitable  security :—  Held, 
that  it  was  not  necessary  for  the  first  mortgagees 
to  give  notice  of  their  mortgage  to  the  landlord 
in  order  to  complete  their  security,  and  that 
their  omission  to  give  such  notice  was  not  such 
negligence  as  would  postpone  them  to  the  sab- 
sequent  equitable  mortgagees.  Mumford  v. 
Stohwasser  (18  L.  R.,  Eq.  556)  considered. 
Layard  v.  Maud  (4  L.  R.,  Eq.  397)  distinguished. 
Union  Bank  of  London  v.  Kent,  39  Ch.  D.  238 ; 
57  L.  J.,  Ch.  1022  ;  59  L.  T.  714  ;  37  W.  R.  364 
— C.A. 

Custody  of  Deeds.  ] — C,  the  manager  of  a 

joint  stock  company,  executed  a  legal  mortgage 
to  the  company  of  his  own  freehold  estate,  and 
handed  over  the  title-deeds  to  them.  The  deeds 
were  placed  in  a  safe  of  the  company,  which  had 
only  one  lock  having  duplicate  keys,  one  of  which 
was  intrusted  to  C,  as  manager.  Some  time  after- 
wards C.  took  out  of  the  safe  the  deeds,  except 
the  mortgage,  and  handed  them  to  W.,  to  whom 
at  the  same  time  he  executed  a  mortgage  for 
money  advanced  to  him  by  her,  without  notice 
of  the  company's  security : — Held,  that  the  mort- 
gage of  the  company  had  priority  over  the  mort- 
gage to  W.  Northern  Counties  of  England  Fire 
Insurance  Company  v.  IVhipp,  26  Ch.  D.  482; 
53  L.  J.,  Ch.  629  ;  51  L.  T.  806  ;  32  W.  B.  626 
— C.  A.  See  also  Garnkam  v.  Skipper,  post, 
col.  1254. 


Mortgage  by  Deposit — Priority  at  be- 


tween Equities.] — On  the  18th  of  January, 
1883,  A.,  a  solicitor,  obtained  from  his  sisters, 
B.  and  C,  their  signatures  to  two  deeds,  by 
which,  in  alleged  consideration  in  each  case  of 
the  release  of  a  debt  of  400Z.  and  payment  to 
them  of  300Z. ,  they  conveyed  their  shares  of  free- 
hold property,  which  was  subject  to  a  mortgage 
to  K.,  to  A.  in  fee.  No  money  was  at  the  time 
due  from  B.  and  C.  to  A.,  nor  was  any  payment 
whatever  made  to  them.  The  deeds  were  not 
read  over  or  explained  to  B.  and  C,  who  had  no 
idea  that  they  were  thereby  conveying  their 
property,  and  signed  in  full  reliance  on  A.'s 
statement  that  he  was  going  to  clear  off  the 
mortgage  and  wanted  to  send  the  deeds  to  K. 
On  the  next  day  A.  deposited  the  deeds  with  a 
bank  as  security  for  an  advance.  In  applying 
for  the  advance  before  the  execution  of  the  deeds, 
A.  had  told  the  managers  that  B.  and  C,  who 
were  joint  owners  with  himself  of  the  property, 
were  going  to  convey  and  "  were  assisting  with 
the  deeds,"  but  that  nothing  would  be  paid  to 
them  as  consideration  money,  as  the  money  was 
to  be  invested  in  a  colliery  in  which  A.  was  in- 
terested. The  manager  handed  over  the  deeds 
to  the  solicitor  of  the  bank  and  merely  told  him 
that  he  was  to  exercise  great  care  and  diligence 
in  investigating  the  title.  The  solicitor  being 
dead,  it  did  not  appear  what  inquiries  were 
made  by  him,  but  the  advance  was  made  to  A 
A.  having  absconded,  the  property  was  claimed 
by  the  bank  as  equitable  mortgagees,  and  the 
claim  was  resisted  by  B.  and  C.  on  the  ground 
that  the  conveyances,  having  been  obtained  by 
fraud  and  misrepresentation,  were  void  ** 
against  them : — Held,  that  inasmuch  as  B.  and  C 
though  they  may  not  have  understood  the  nature 
of  the  deeds,  knew  they  were  executing  some- 
thing which  dealt  in  some  way  with  their  pro- 
perty, the  deeds  of  the  18th  of  January,  1883, 
were  not  void  but  voidable  only.    But  as  the 


1258 


MORTGAGE— Several  Mortgages. 


1254 


statements  made  by  A.  to  the  bank  manager 
were  such  as  to  have  clearly  put  the  bank  upon 
inquiry,  which  would,  if  made,  have  led  to  the 
detection  of  the  fraud  and  to  a  refusal  of  the 
advance,  and  therefore  to  have  affected  the 
bank  with  constructive  notice  of  the  fraud,  the 
equity  of  the  bank  must,  on  the  ground  of  their 
negligence,  be  postponed  to  that  of  B.  and  C. 
National  Provincial  Bank  of  England  v.  Jack- 
ton,  33  Ch.  D.  1  ;  55  L.  T.  458  ;  34  W.  R.  597— 
C.A. 

Deads  not  Examined.] — By  two  separate 

mortgage  deeds,  dated  the  7th  August,  1877,  N., 
who  was  S.'s  solicitor,  mortgaged  to  W.  and  S. 
two  separate  estates,  A.  and  B.,  to  secure  1,2502. 
on  each  estate.  The  B.  estate  comprised  five  sepa- 
rate properties,  which  were  separately  described 
and  numbered'  (1),  (2),  (3),  (4),  (5).  S.  asked 
N.,  as  it  was  a  trust  matter,  to  send  him  the 
deeds,  and  N.  sent  a  parcel,  which  S.  sent  on  to 
his  bankers  without  examination.  It  was  after- 
wards found  to  contain  only  the  two  mortgage 
deeds.  On  the  20th  October,  1880,  N.  deposited 
the  title-deeds  relating  to  (5)  with  L.  to  secure 
300Z.  On  the  18th  May,  1881,  he  deposited  the 
deeds  relating  to  (1),  (2),  (3),  and  (4j,  to  secure 
an  overdraft  of  3,0007.  with  his  bankers,  the 
plaintiffs.  The  deed  relating  to  the  A.  estate 
had  been  previously  deposited  with  the  plaintiffs 
to  secure  his  overdraft.  Neither  L.  nor  the 
plaintiffs  had  at  the  time  of  their  advances  any 
notice  of  the  first  mortgage,  nor  had  the  plain- 
tiffs any  notice  of  the  advance  to  L.  In  June, 
1882,  N.  became  bankrupt.  In  July,  1882,  the 
plaintiffs  took  a  transfer  of  the  mortgages  to  W. 
and  S.  They  then  brought  this  action  for  fore- 
closure, claiming  to  tack  the  sum  due  on  their 
equitable  mortgage  to  that  due  on  the  first 
mortgage  of  B.,  so  as  to  gain  priority  over  L. : — 
Held  (1),  that  S.  had  not  been  guilty  of  such 
negligence  as  to  postpone  his  legal  mortgage  to 
the  subsequent  equitable  incumbrances ;  (2), 
that  the  general  rule  as  to  tacking  applied, 
though  the  third  mortgage  did  not  include  that 
part  of  the  property  in  the  first  which  was  com- 
prised in  the  second,  and  that  the  plaintiffs  had 
a  right  to  recover  the  whole  of  their  debt  in 
priority  to  L.  out  of  all  the  B.  estate.  Atherley 
v.  Barnett  or  Burnett,  52  L.  T.  736 ;  33  W.  R. 
779— Pearson,  J. 

Omission  to  register  letter  of  Deposit] 

— L.  was  entitled  under  the  will  of  R.  to 
premises  held  under  three  leases  for  terms  of 
years  and  assigned  to  B.  by  deed  of  the  31st 
July,  1846.  In  1877  L.  deposited  this  deed  with 
a  bank  by  way  of  equitable  mortgage,  accom- 
panied by  a  memorandum  in  writing,  which  the 
bank  did  not  register.  In  1879  the  bank  having 
pressed  L.  for  payment,  they  were  informed  that 
1*.  was  about  to  raise  money  out  of  which  they 
would  be  paid  a  6um  on  account  of  what  was 
doe  to  them,  and  B.,  who  had  investigated  the 
title  and  searched  the  registry,  immediately 
afterwards  made  an  advance,  upon  the  deposit 
of  a  number  of  title-deeds  of  the  premises, 
including  the  original  leases  and  the  probate  of 
B.'g  will.  B.  was  at  the  time  informed  by  L.'s 
solicitor  (both  of  them  being  ignorant  of  the 
deposit  with  the  bank)  that  all  the  title-deeds 
were  delivered  to  him ;  but  a  comparison  of  the 
schedule  of  deeds  delivered  with  the  abstract  of 


title  which  had  been  furnished  would  have  shewn 
that  a  material  title-deed  was  absent.  The 
greater  part  of  the  money  so  advanced  by  B. 
was  paid  over  by  L.  to  the  bank : — Held,  that 
B.  had  the  better  equity,  and  that  the  bank,  by 
not  registering  their  memorandum  of  deposit, 
and  by  allowing  L.  to  retain  all  the  title-deeds 
but  one,  and  thereby  enabling  him  to  raise 
further  sums  on  the  property,  without  notice  of 
their  charge,  were  guilty  of  negligence  so  as  to 
deprive  them  of  their  priority.  Lam berfs  Estate, 
In  re,  13  L.  R.,  Ir.  234— C.  A. 


Estoppel  by  Conduct — Demanding  Deed.] — 
The  plaintiff,  mortgagee  of  a  policy  of  life 
insurance,  handed  it  to  the  mortgagor  for  a 
particular  purpose.  On  the  plaintiff  demanding 
it  back  from  time  to  time,  the  mortgagor  made 
excuses  for  not  doing  so ;  and  the  plaintiff  then 
forgot  that  it  had  not  been  returned.  After- 
wards the  mortgagor  deposited  the  policy  with 
the  defendants  to  secure  an  advance.  The  plain- 
tiff gave  notice  of  his  interest  to  the  insurance 
company  before  the  defendants  : — Held,  that  the 
plaintiff  was  entitled  to  the  policy  as  against  the 
defendants,  and  that  the  conduct  of  the  plaintiff 
had  not  been  such  as  to  estop  him  from  asserting 
his  claim  against  the  defendants.  Hall  v.  West 
End  Advance  Company,  1  C.  &  B.  161— Wil- 
liams, J. 

Two  Equitable  Mortgages  —  Agreement  for 
Legal  Mortgage.]— The  owner  of  the  A.  and  B. 
property  deposited  with  K.  some  of  the  earlier 
title-deeds  of  the  A.  property  as  a  security  for 
3002.,  promising  to  execute  a  legal  mortgage. 
He  subsequently  executed  a  legal  mortgage  of 
both  properties  to  the  plaintiff,  who  took  with- 
out notice  of  K.'s  charge,  as  security  for  an  im- 
mediate loan ;  but  the  mortgage  was  stated  to  be 
subject  to  a  charge  in  favour  of  J.,  with  whom 
the  title-deeds  were  said  to  be  deposited.  J.'s 
charge  was  only  over  the  B.  property,  though 
she  had  possession  of  the  title-deeds  relating  to 
both  properties,  except  such  of  the  earlier  title- 
deeds  of  the  A.  property  as  were  in  K.'s  posses- 
sion : — Held,  that  the  mortgage  to  the  plaintiff 
must  take  priority  over  K's  charge,  although 
the  plaintiff  had  not  obtained  possession  of  the 
title-deeds  or  made  active  inquiry  about  them, 
and  although  the  mortgagor,  before  executing 
the  mortgage  to  the  plaintiff,  had  agreed  to  give 
K.  a  legal  mortgage.  Garnham  v.  Skipper,  55 
L.  J.,  Ch.  263 ;  53  L.  T.  940 ;  34  W.  R.  135— 
North,  J. 

Although  a  mortgagor  cannot  give  the  second 
of  two  equitable  mortgagees  priority  over  the 
first  by  voluntarily  conveying  to  him  the  legal 
estate  after  the  transaction  is  completed,  a  person 
who  advances  money  on  an  agreement  for  a  legal 
mortgage  will  not,  when  the  legal  mortgage  is 
executed,  be  postponed  to  a  prior  equitable 
mortgagee  of  whom  he  had  no  notice,  merely 
because  the  mortgagor  had  contracted  to  execute 
a  legal  mortgage  to  such  prior  equitable  mort- 
gagee. Maxjield  v.  Burton  (17  L.  R.t  Eq.  15), 
distinguished.    lb. 

Charging  Order— Fund  in  Court.] — A  judg- 
ment creditor  cannot  by  obtaining  a  charging 
order  upon  money  in  court  belonging  to  his 
debtor,  obtain  priority  over  a  previous  mort- 

8  8  2 


1255 


MORTGAGE— Several  Mortgages. 


1256 


gagee.    Bell,  In  re,  Carter  v.  Stadden,  54  L.  T. 
870  ;  34  W.  R.  363— Kay,  J. 

Insurance  Policy— Fotice  to  Company.]— The 
act  80  &  31  Vict,  c  144,  is  intended  to  apply 
only  as  between  the  insurance  office  and  the 
persons  interested  in  the  policy,  and  does  not 
affect  the  rights  of  those  persons  inter  se.  Ac- 
cordingly, where  a  first  incumbrancer  on  a 
policy  nad  not  given  such  notice  as  prescribed 
by  the  act,  and  a  second  incumbrancer  with 
notice  of  the  prior  charge  had  given  the  statu- 
tory notice: — Held,  that  the  second  incum- 
brancer did  not  thereby  obtain  priority.  New- 
man v.  Newman,  28  Ch.  D.  674 ;  54  L.  J.,  Gh. 
598 ;  52  L.  T.  422  ;  33  W.  R.  505— North,  J. 

Registry—Real  Estate  in  Middlesex— Share 
in  Proceeds  of  Sale  of.] — The  local  registry  acts 
are  intended  to  apply  only  to  dealings  at  law  or 
in  equity  with  the  land  itself.  Accordingly  an 
incumbrancer  upon  a  share  in  the  proceeds  of 
real  estate  in  Middlesex  devised  in  trust  for  sale 
obtains  no  priority  over  other  incumbrancers  on 
such  share  f>y  registering  his  mortgage  deed,  and 
the  priorities  of  such  incumbrancers  rank  ac- 
cording to  the  dates  of  their  respective  notices 
to  the  trustees.  Malcolm  v.  Charlesworth  (1 
Keen,  63)  approved.  Arden  v.  Arden,  29  Ch.  D. 
702 ;  54  L.  J.,  Ch.  656  ;  52  L.  T.  610 ;  33  W.  R. 
593— Kay,  J. 


3.  NOTICE   OF  PRIOR  MORTGAGE. 

Order  of  Hotices  to  Trustees.]  —  Although 
formal  notice  to  the  trustee  of  the  proceeds  of 
real  estate  devised  in  trust  for  sale  or  of  a  chose 
in  action,  of  an  incumbrance  thereupon  does  not 
give  priority  over  an  earlier  incumbrance  of 
which  the  trustee  may  have  obtained  accidental 
notice,  the  converse  proposition  that  incum- 
brances are  to  rank  not  in  the  order  of  notices 
given  by  the  incumbrancers  but  of  accidental 
knowledge  obtained  by  the  trustees,  does  not 
hold  good.    Arden  v.  Arden,  supra. 

Notice  to  Trustees,  Effect  of— Mortgagor 
entitled  to  two  Properties.] — A  mortgagor  was 
entitled  to  a  reversionary  interest  in  the  residuary 
estate  of  a  testator,  and  was  also  entitled  to  a  life 
interest  in  certain  sums  of  money  under  his  own 
marriage  settlement.  Before  1872  he  mortgaged 
both  his  reversionary  and  life  interests  to  divers 
persons.  Notice  of  all  these  mortgages  was  given 
to  the  trustees  of  both  funds  before  any  notice  of 
the  next-mentioned  mortgage  had  been  given. 
In  1872  he  mortgaged  his  reversionary  interest 
alone  to  the  defendant,  who  gave  notice  to  the 
trustees  of  that  fund.  In  1876  and  subsequent 
years  the  mortgagor  made  five  subsequent  mort- 
gages of  his  life  interest  to  the  plaintiffs,  of  which 
notice  was  given  to  the  trustees  of  that  fund. 
The  plaintiffs  in  1880  took  a  transfer  of  the 
securities  prior  to  the  defendant's  mortgage  of 
1872.  The  defendant  took  two  further  charges 
on  the  reversionary  interest,  of  neither  of  which 
did  he  give  notice  to  the  trustees  thereof.  An 
actioD  having  been  brought  by  the  plaintiffs  for 
foreclosure  of  the  reversionary  and  life  interest : 
— Held  (reversing  the  decision  of  Pearson,  J.), 
that  the  defendant  on  paying  off  the  plaintiffs' 


mortgages  which  were  prior  to  his  mortgage  of 
1872  was  entitled  to  an  assignment  of  both  pro- 

STties,  although  his  mortgage  included  only  one : 
eld,  that  as  regards  the  defendant's  two  further 
charges  on  the  reversionary  property,  and  the 
plaintiffs'  five  mortgages  on  the  life  interests, 
they  must  be  redeemed  in  order  of  date  respec- 
tively, notwithstanding  the  plain tinV  notices  as  to 
the  life  interests : — Held,  also,  that  the  plaintiffs 
thuB  becoming  the  last  mortgagees  as  well  as  toe 
first  must  pay  the  costs  of  the  suit  if  they  did 
not  redeem.  Mutual  Life  Assurance  Society  v. 
Langley,  infra. 

Hotiee  to  Solicitor — Conveyancing  Act,  tttt, 
I.  8.] — In  June,  1875,  A.  mortgaged  his  share  of 
trust  property  to  E.  by  deed,  which  did  not 
disclose  any  prior  charge,  and  contained  the 
usual  covenant  by  A.  that  he  was  entitled  to 
assign  free  from  incumbrances.  Notice  of  this 
mortgage  and  of  a  further  charge  created  in  Mar, 
1877,  was  served  on  behalf  of  E.  on  the  trustees 
of  the  property  in  November,  1881.  A.'s  share 
was  subject  to  a  prior  mortgage  to  B.,  a  solicitor, 
who  was  paid  off  in  1873,  when  a  fresh  mortgage 
was  executed  to  0.,  which  in  July,  1874,  was 
transferred  by  C.  to  D.  (with  a  further  charge  in 
February,  1881).  6.  was  solicitor  for  the  trustee* 
and  A.  the  mortgagor,  and  had  acted  as  solicitor 
for  C.  and  D.  in  the  mortgage  transactions  of  1871 
and  1874,  and  also  as  solicitor  for  E.  in  the 
mortgage  transaction  of  June,  1875.  The 
trustees  had  not  received  notice  of  any  charge 
before  receiving  notice  of  B.'s  mortgage  in 
November,  1881: — Held,  having  regard  to  a  3, 
sub-8.  1,  cl.  2,  of  the  Conveyancing  Act,  1882, 
that  B.'b  charge,  of  which  notice  was  first  given, 
was  entitled  to  priority,  as  his  mortgage  deed 
shewed  a  title  in  A.  free  from  incumbrance*; 
and  that  as  the  court  declined  to  infer  that  B. 
had  any  recollection,  or  that  inquiries  made  by 
him  when  acting  as  solicitor  for  E.  in  the  trans- 
action would  have  elicited  from  A.  the  existence 
of  any  prior  incumbrance,  it  could  not  be  sud 
that  although  B.  had  acted  as  solicitor  for  the 
parties  in  the  previous  mortgage  transactions, 
notice  of  any  prior  charge  affecting  the  property 
had  come  to  his  knowledge  as  the  solicitor  of 
B.  in  the  mortgage  transaction  of  June,  1875. 
Cousin's  Trusts,  In  re,  31  Ch.  D.  671 ;  55  L 
J.,  Ch.  662 ;  54  L.  T.  876 ;  34  W.  B.  393- 
Chitty,J. 

Advances  by  first  Mortgagee— Hotioe  of  Second 
Mortgage.] — The  principle  of  the  decision  in  the 
case  of  Ilaphinson  v.  Bolt  (9  H.  L.  C.  514),  ie  not 
confined  in  its  application  to  the  law  of  England, 
but  it  is  applicable  also  to  the  law  of  Scotland. 
M.,  who  was  indebted  to  the  respondent  bank, 
conveyed  certain  freehold  property  in  Greenock 
to  them  to  hold  in  accordance  with  the  terms  of 
a  "  back  letter  "  "  in  security  and  until  full  and 
final  payment  of  all  sums  of  money  due  or 
which  may  hereafter  become  due  by  me  to  you." 
Some  time  afterwards  she  assigned  all  her  re- 
maining interest  in  the  property  to  the  appellant 
bank,  as  security  for  the  balance  due  under  two 
bills  of  exchange,  and  notice  of  this  assignment 
was  given  to  the  respondents.  After  notice  of 
the  assignment  the  respondents  made  farther 
advances  to  M.  She  afterwards  became  bankrupt, 
and  the  security  proved  insufficient  to  meet  the 
claims  of  both  banks : — Held,  that  the  respondent 


1857 


MORTGAGE — Rights  of  Mortgagees  and  Mortgagors. 


1258 


bank  bad  no  power  to  bind  the  security  by 
further  advances  after  they  had  notice  of  the 
assignment  to  the  appellant  bank,  notwithstand- 
ing the  terms  of  the  back  letter.  Union  Bank 
«f  Scotland  v.  National  Bank  of  Scotland,  12 
App.  Cas.  53  ;  66  L.  T.  208— H.  L.  (Sc.)  See 
site  Lloyd's  Banking  Co.  v.  Jr<m««,  ante,  col.  1251, 
and  Macnamara's  Estate,  In  re,  ante,  col.  1244. 
A  registered  deed  of  mortgage  to  secure  moneys 
doe  and  further  advances  is,  as  regards  a  puisne 
mortgage,  a  valid  security  for  such  further 
advances,  if  made  bona  fide,  and  without  notice 
of  the  subsequent  mortgage,  though  after  its 
registration,  d' Byrne's  Estate,  In  re,  15  L.  B.,  Ir. 
373-C.A. 


of  Company  for  Debts  subsequently 
incurred  by  Shareholder.]  —A  member,  who  was 
also  a  customer,  of  a  trading  company  formed 
under  the  Companies  Act,  1862,  deposited  the 
certificates  of  his  shares  with  the  bank  to  secure 
an  advance,  and  notice  of  the  deposit  was  given 
to  the  company.  One  of  the  articles  of  association 
proTided  that  the  company  should  have  "  a  first 
and  permanent  lien  and  charge  "  on  every  share 
for  all  debts  due  to  them  from  the  holder : — Held, 
first,  that  the  notice  was  not  rendered  nugatory 
by  g.  30  of  the  Companies  Act,  1862,  but  affected 
the  company  in  its  trading  capacity  with  know- 
ledge of  the  appellants'  interest ;  secondly,  that 
the  article  did  not  exclude  the  application  of 
Bopkinson  v.  Bolt  (9  H.  L.  C.  514),  and  that  the 
company's  lien  for  debts  incurred  to  them  by 
the  member  after  the  notice  must  be  postponed 
to  the  bank's  charge.  Bradford  Banking 
Company  v.  Briggs,  12  App.  Cas.  29  ;  56  L.  J., 
Ch,  364 ;  66  L.  T.  62  ;  36  W.  R.  521— H.  L.  (E.) 


Registration  of  lis  Pendens.]— Registration 
of  a  petition  for  sale  by  the  second  mortgagee  as 
a  lis  pendens  has  not  the  effect  of  notice  to  the 
fiat  mortgagee,  so  as  to  effect  the  priority  of 
farther  advances  made  by  him  in  ignorance  of 
SQch  petition  and  registration.  0' Byrne's  Estate, 
A  re,  16  L.  B.,  Ir.  873— C.  A. 


Stop  Order — Fund  in  Court]— A  second 
incumbrancer  of  a  fund  in  court,  who  at  the  time 
of  taking  his  security  had  notice  of  the  existence 
of  the  first  incumbrance,  cannot,  by  obtaining  a 
stop  order,  gain  priority  over  the  first  incum- 
brancer, even  although  the  latter  never  obtains  a 
•top  order.  Holmes,  In  re,  29  Ch.  D.  786  ;  55 
L.  J.,  Ch.  33— C.  A. 

An  incumbrancer  who  obtains  a  stop  order  on 
a  fnnd  in  court  does  not  lose  his  priority  over  a 
previous  incumbrancer  who  has  obtained  no  stop 
order,  by  the  fact  that  he  had  notice  of  the 
previous  incumbrance  at  the  time  of  obtaining 
the  stop  order,  if  he  had  no  notice  of  it  when  he 
took  his  security.  Elder  v.  Maclean  (5  W.  R. 
447)  observed  upon.  Mutual  Life  Assurance 
Sseiety  v.  Lang  ley.  32  Ch.  D.  460  ;  64  L.  T.  326 
— C  A.  Affirming  53  L.  J.,  Ch.  996  ;  32  W.  R. 
791— Pearson,  J. 

OomstmetiTe  Fotke  of  Fraud.]  —  See 
National  Provincial  Bank  of  England  v. 
Jackson,  ante,  col.  1263. 


VL  RIGHTS  OF  MORTGAGEES  AND 
MORTGAGORS. 

1.  POWER  OF  SALE. 

Freeholds  and  Trade  Machinery.] — The  power 
of  sale  incident  to  the  estate  of  the  mortgagee 
under  s.  19  of  the  Conveyancing  Act,  1881,  which 
enables  him  to  sell  the  "mortgaged  property 
or  any  part  thereof,"  does  not  authorise  him  to 
sell  the  trade  machinery  apart  from  the  freehold. 
Yates,  In  re,  Batcheldor  or  Batohelor  v.  Yates, 
38  Ch.  D.  112 ;  57  L.  J.,  Ch.  697  ;  59  L.  T.  47  ; 
36  W.  R.  563— C.  A. 

Proviso  restricting  Exercise — Hotiee  to  Mort- 
gagor—Waiver— Purchaser's  Protection  Clause.] 
— A  proviso  relieving  a  purchaser  under  a  power 
from  inquiring  as  to  the  regularity  of  a  sale  does 
not  protect  a  purchaser  who  knows  of  an  irregu- 
larity which  cannot  have  been  waived  : — Quaere 
(per  Bowen,  L.  J.),  whether  the  same  rule  would 
apply  where  the  irregularity  was  one  which 
might  have  been  waived  Parkinson  v.  Hanbury 
(2  L.  R.,  H.  L.  1)  followed.  Selwyn  v.  Oarfit, 
38  Ch.  D.  273  ;  67  L.  J.,  Ch.  609  ;  59  L.  T.  233  ; 
36  W.  R.  613— C.  A. 

A  mortgage  deed  contained  a  covenant  to 
pay  at  the  expiration  of  six  months,  and  a 
power  of  sale  in  the  usual  form,  with  a  proviso 
that  the  power  should  not  be  executed  until  the 
mortgagee  had  given  notice  to  the  mortgagor 
to  pay  off  the  debt  and  default  should  have 
been  made  for  three  months.  The  deed  con- 
tained also  the  usual  clause  for  the  protection 
of  purchasers  in  any  sale  purporting  to  be  made 
under  the  power.  The  mortgagor  subsequently 
incumbered  his  equity  of  redemption.  Two 
months  after  the  date  of  the  mortgage  the  mort- 
gagee gave  notice  to  the  mortgagor  to  pay  off 
the  debt,  and  seven  months  after  the  date  of  the 
mortgage  sold  the  property  to  the  defendant : — 
Held,  in  an  action  by  the  mortgagor  to  set  aside 
the  sale,  that  three  months  not  having  elapsed 
since  default  in  payment  of  the  mortgage  debt, 
the  proviso  had  not  been  complied  with,  and  the 
sale  was  invalid ;  that  as  the  purchaser  must 
be  taken  to  have  known  that  the  proviso  had  not 
been  complied  with,  she  was  not  protected  by 
the  protection  clause ;  and  that  the  mortgagor 
having  incumbered  his  equity  of  redemption, 
and,  therefore,  not  being  in  a  position  to  waive 
the  necessity  of  notice,  the  purchaser  had  no 
right  to  assume  that  there  had  been  any  such 
waiver.    lb. 

Purchase  by  Disqualified  Person — Sub-pur- 
chase by  Person  not  Disqualified.] — A  building 
society,  who  were  mortgagees  from  the  plaintiff, 
put  up  the  mortgaged  property  for  sale  by 
auction  in  lots.  The  secretary  of  the  society 
bid  on  his  own  account  for,  and  was  de- 
clared the  purchaser  of,  five  of  the  lots.  The 
bids  were  more  than  the  reserved  prices  and 
were  bon&  fide,  and  the  people  at  the  sale  knew 
that  the  bidder  was  the  secretary  of  the  society, 
and  that  the  bids  were  bonft  fide.  After  the 
sale  the  secretary  transferred  the  benefit  of 
his  contract  as  to  three  of  the  lots  to  other 
persons,  who  would  not  themselves  have  been 
disqualified  as  purchasers,  and  they  signed  con- 
tracts with  the  society  to  purchase  the  three  lots. 
The  mortgagor  having  brought  an  action  to  set 


1259 


MORTGAGE — Rights  of  Mortgagees  and  Mortgagors. 


1260 


aside  the  sales  of  the  five  lots,  North,  J.,  held 
that  the  sale,  as  to  the  two  lots  retained  by  the 
secretary,  could  not  be  supported,  but  that  the 
sales  of  the  three  other  lots  were  valid.  On 
appeal,  the  mortgagor  contended  that  the  judg- 
ment ought,  as  to  all  the  five  lots,  to  have  declared 
that  the  plaintiff  was  entitled,  at  his  option, 
either  to  have  the  sales  set  aside,  or  to  have  the 
lots  put  up  again  by  auction,  and  the  sales  set 
aside  only  if  larger  prices  were  offered  at  the 
re-sales  : — Held,  that,  whether  this  form  of  relief 
could  have  been  obtained  against  the  secretary 
if  claimed  by  the  pleadings,  it  could  not  be  given 
where  not  so  claimed,  and  that  as  the  other  pur- 
chasers had  contracted  with  the  mortgagees 
themselves,  the  sales  to  them  were  good.  Mar- 
tinson v.  Clowes,  52  L.  T.  706  ;  33  W.  R.  555— 
C.A. 

Purchase  by  Company  of  which  Mortgagee  a 
Member — Aetion  to  set  aside  Sale.]  —  The 
mortgagors  of  a  quarry  brought  an  action  to  set 
aside  a  sale  of  the  mortgaged  property  made  by 
the  mortgagees  under  the  power  of  sale  in  the 
mortgage  to  a  limited  company  who  were  de- 
fendants to  the  .action.  The  sale  was  impeached 
on  the  ground  that  F.,  one  of  the  mortgagees,  was 
personally  interested  in  the  purchase,  being  at 
the  time  of  the  sale  the  holder  of  shares  in  the 
company  to  the  amount  of  one-tenth  of  the  sub- 
scribed capital  of  the  company  and  also  being 
the  solicitor  to  the  company  : — Held,  that  al- 
though a  mortgagee  could  not  sell  to  himself,  nor 
could  two  mortgagees  sell  either  to  one  of  them- 
selves, or  to  one  of  themselves  and  another,  the 
reason  being  that  there  could  not  be  any  real 
independent  bargaining  as  between  opposite 
parties,  yet  where  mortgagees  sold  to  a  corpora- 
tion such  as  a  public  company,  there  were  prima 
facie  two  independent  contracting  parties  and  a 
valid  contract,  and  if  the  bargaining  was  real 
and  honest,  and  conducted  independently  by  the 
mortgagees  on  the  one  hand  and  by  the  directors 
on  the  other,  and  it  was  satisfactorily  shown  that 
in  the  concluding  terms  of  the  sale  the  parties 
were  in  no  way  affected  by  the  circumstance  that 
one  of  the  mortgagees  had  some  interest  as  a 
shareholder  in  the  company,  there  was  no  suffi- 
cient reason  for  setting  aside  the  sale ;  that  in 
the  present  case  the  material  terms  of  the  bargain 
were  honestly  and  independently  settled,  and 
were  not  in  any  degree  affected  by  the  fact  that 
F.  subsequently  agreed  to  become  a  member  of 
and  to  act  as  solicitor  for  the  company,  and  that 
the  sale  ought  not  to  be  set  aside  merely  because 
he  was  a  member  of  and  acting  as  solicitor  for 
the  company  at  the  time  when  the  formal  con- 
tract was  signed.  Farrar  v.  Farrars,  59  L.  T. 
619— Chitty,  J.  Affirmed  40  Ch.  D.  395  ;  58 
L.  J.,  Ch.  185 ;  60  L.  T.  121 ;  37  W.  R.  196— 
C.A. 

Injunction  to  restrain  Sale  —  Payment  of 
Money  into  Court  —  Mortgagee  in  Fiduciary 
Position.] — The  ordinary  rule  that  the  court  will 
not  grant  an  interlocutory  injunction  restraining 
a  mortgagee  from  exercising  his  power  of  sale 
except  on  the  terms  of  the  mortgagor  paying 
into  court  the  sum  sworn  by  the  mortgagee  to 
be  due  for  principal,  interest,  and  costs,  does  not 
apply  to  a  case  where  the  mortgagee  at  the  time 
of  taking  the  mortgage  was  the  solicitor  of  the 
mortgagor.  In  such  a  case  the  court  will  look 
to  all  the  circumstances  of  the  case,  and  will 


make  such  order  as  will  save  the  mortgagor 
from  oppression  without  injuring  the  security 
of  the  mortgagee.  MacLeod  v.  Jones,  24  Ch.  D. 
289 ;  53  L.  J.,  Ch.  145  ;  49  L.  T.  321 ;  32  W.  R. 
43— C.  A. 


By  Mortgagor  and  First 
of  Second  Mortgage— Application  of  Proeeedi.] 
— A  mortgagor  of  a  leasehold  house,  with  the 
concurrence  of  the  first  mortgagees,  who  had 
notice  of  a  second  equitable  mortgage,  sold  the 
property.    Ujwn  completion  the  balance  of  the 
purchase-money,  after  payment  of  the  first  mort- 
gagees, was  handed  to  the  mortgagor.    In  an 
action  by  the  second  mortgagees  against  the 
mortgagor  (who  did  not  appear)  and  the  first 
mortgagees: — Held,  that  the  first  mortgagees 
were  liable  to  make  good  to  the  plaintiffs  the 
amount  of  their  security  to  the  extent  of  the 
balance  of  the  purchase-money.    The  doctrine 
in  Peacock  v.  Burt  (4  L.  J..  Ch.  33)  will  not  be 
extended.    Dictum  of  Wood,  V.-C,  in  Bates  y. 
Johnson  (Joh.  304,  313)  as  to  the  right  of  a  first 
mortgagee  to  transfer  to  a  third  mortgagee  in 
preference    to    the   second,  questioned.     West 
London  Commercial  Bank  v.  Reliance  Perm*- 
nent  Building  Society,  29  Ch.  D.  954  ;  54  L.  Jn 
Ch.  1081 ;  53  L.  T.  442  ;  33  W.  R.  916— C.  A. 

Interest  on  Surplus  Proceeds — Amount  under- 
stated by  Mortgagee— Costs.] — Where  a  mort- 
gagee sells  under  his  power  of  sale  and.  after 
he  has  paid  himself  his  debts  and  costs  oat  of 
the  purchase-money,  a  surplus  remains  in  his 
hands,  it  is  his  duty,  if  he  cannot  ascertain  who 
are  the  persons  entitled  to  the  surplus,  to  set  it 
apart  so  as  to  be  fruitful  for  their  benefit,  and  if 
he  fails  to  do  so  he  will  be  charged  with  interest 
at  4  per  cent,  from  the  time  of  the  completion 
of  the  sale.  Charles  v.  Jones,  35  Ch.  D.  544 ; 
56  L.  J.,  Ch.  745  ;  56  L.  T.  848  ;  35  W.  B.  645- 
Kay,  J. 

A  mortgagee  in  possession  sold  under  his 
power  of  sale,  and  retained  surplus  proceeds 
of  sale.  In  an  action  against  him  for  accounts 
he  admitted  that  a  sum  was  due  from  him,  and 
paid  such  sum  into  court.  On  the  taking  of  the 
accounts  it  appeared  that  a  considerably  larger 
sum  was  due : — Held,  that  he  ought  not  to  be 
allowed  his  costs  of  taking  the  accounts.    lb. 

Mortgagee's  Sight  to  retain  more  than  Six 
Tears'  Arrears  of  Interest.] — 8. 42  of  the  Statute 
of  Limitations  (3  &  4  WilL  4,  c.  27)  does  not 
affect  the  right  of  a  mortgagee  who  has  sold 
under  his  power  of  sale  to  retain  out  of  the  pro- 
ceeds more  than  six  years'  arrears  of  interest 
Marshfield,  In  re,  Marshfield  v.  Hutching*,  34 
Ch.  D.  721 ;  56  L.  J.,  Ch.  599  ;  66  L.  T.  694 ;  35 
W.  R.  491— Kay,  J. 

After  the  judgment  for  the  administration  of 
the  estate  of  a  second  mortgagee  of  real  estate, 
the  first  mortgagees  sold  the  mortgaged  property 
under  their  power  of  sale  and  received  the  pro- 
ceeds. A  summons  in  the  action  was  then  taken 
out  by  the  plaintiff,  a  beneficiary  under  the  will 
of  the  second  mortgagee,  to  determine  the  ques- 
tion whether  the  first  mortgagees  were  entitled 
to  retain  more  than  six  years'  arrears  of  interest 
The  first  mortgagees  were  not  parties  to  the 
action,  but  consented  to  appear  on  the  summons 
to  argue  the  question.  The  second  mortgage 
absorbed  all  the  possible  surplus  of  the  proceeds 
of  sale : — Held,  that  the  first  mortgagees  were 


1261 


MORTGAGE — Rights  of  Mortgagees  and  Mortgagors. 


1262 


entitled  to  retain  more  than  six  years*  arrears  of 
interest.  Edmunds  v.  Waugh  (1  L.  R.,  Eq.  418) 
approved  of.    lb. 

Sale  by  Auction — Costs  of  Abortive  Sale.]— 
On  a  sale  by  auction  on  behalf  of  a  mortgagee, 
in  exercise  of  the  power  of  sale  contained  in 
his  mortgage  deed,  the  acceptance  by  the  auc- 
tioneer, on  behalf  of  the  vendor  and  with  his 
concurrence,  of  a  cheque  (which  was  dishonoured 
on  presentation)  in  lieu  of  cash  for  the  deposit, 
is  not,  having  regard  to  the  common  practice  at 
sales  by  auction,  unreasonable,  and  is  not  such 
an  act  of  negligence  on  the  part  of  the  mort- 
gagee as  to  deprive  him  of  his  right  to  the  costs 
of  the  abortive  sale.  Ihrrer  v.  Lacy,  31  Ch.  D. 
42 ;  55  L.  J.,  Ch.  149  ;  53  L.  T.  515  ;  34  W.  R.  22 
-C.A. 

Costs — Remuneration  of  Auctioneer.] — 

A  testator's  real  estate  was  subject  to  a  mortgage 
for  3,0OOZ.  The  property  was  put  up  for  sale  by 
an  auctioneer  and  not  sold,  as  the  reserve  price 
(7,000/.)  was  not  reached.  The  auctioneer  sub- 
sequently sold  the  property  by  private  contract 
at  the  reserve  price.  On  the  mortgagees  bring- 
ing their  accounts  of  the  sale  before  the  chief 
clerk,  he  allowed  the  auctioneer  only  the 
charges  usually  allowed  in  cases  of  sale  in  court, 
and  struck  off  622.  10*.  from  their  bill  for  com- 
mission. An  action  for  the  administration  of 
the  testator's  estate  came  on  for  further  con- 
sideration, together  with  a  summons  by  the 
mortgagees  to  vary  the  chief  clerk's  certificate  by 
allowing  the  621. 10*. :— Held,  that  the  auctioneer 
was  only  entitled,  beyond  expenses  for  outgoings, 
to  a  proper  remuneration  according  to  the  scale 
allowed  by  the  court  in  sales  of  property  under 
its  control,  and  that  auctioneers  had  no  right  to 
agree  amongst  themselves  to  fix  a  certain  scale 
of  remuneration  upon  which  to  charge  the  per- 
sons who  employed  them,  and  that  the  chief 
clerk  was  right  in  disallowing  the  622.  10*. 
Watford,  In  re,  Watford  t.  Watford,  59  L.  T. 
397— Kay,  J. 


2.    LEASES— DISTRESSES. 

By  Mortgagor  subsequent  to  Mortgage — Hotioe 
ky  Mortgagee  to  Tenant  to  pay  Rent  to  him.] — 
C,  the  owner  of  a  leasehold  estate  which  was 
subject  to  a  mortgage,  entered  without  the 
privity  of  the  mortgagees  into  an  agreement 
with  P.  to  grant  him  a  lease  for  twenty-one 
years,  and  in  1875  P.  took  possession  under  this 
agreement.  On  the  25th  of  March,  1881,  the 
mortgagees*  solicitors  wrote  to  P.  stating  that 
they,  on  behalf  of  the  mortgagees,  had  with- 
drawn C.'s  authority  to  receive  the  rents,  and 
asking  him  to  pay  the  rent  due  that  day  and  all 
future  rent  to  them.  P.  wrote  to  ask  C.  whether 
he  ought  to  pay  according  to  the  notice,  and  C. 
replied  that  be  would  be  correct  in  doing  so.  P. 
consulted  his  solicitors,  who  inspected  the  mort- 
gage deed,  and  advised  him  that  the  mortgagees 
could  claim  rent  from  him.  P.  therefore  paid  the 
mortgagees  the  rent  due  on  the  25th  of  March, 
and  on  the  22nd  of  June  gave  them  notice  to 
determine  his  tenancy  at  Christmas.  At  the  end 
of  the  year  the  mortgagees  refused  to  accept  pos- 
sesion, and  in  June,  1882,  they  and  C.  commenced 
this  action  to  compel  P.  to  take  a  lease  according 


to  the  agreement : — Held,  that  the  notice  by  the 
mortgagees  to  the  tenant  to  pay  rent  to  them, 
and  the  payment  accordingly,  did  away  with 
the  agreement  between  O.  and  P.,  and  made  P. 
tenant  from  year  to  year  to  the  mortgagees,  and 
that  specific  performance  of  the  agreement  could 
not  be  decreed.  Corbett  v.  Plowden,  25  Ch.  D. 
678  ;  54  L.  J.,  Ch.  109  ;  50  L.  T.  740 ;  32  W.  R. 
667— C.  A. 

Notice  to  pay  Rent  to  Mortgagee — Rent 

paid  to  Mortgagee  is  Money  paid  for  Landlord.] 
— A  mortgagor  let  the  mortgaged  premises  subse- 
quently to  the  mortgage.  During  the  quarter 
ending  at  Michaelmas  the  mortgagees  gave  a 
notice  to  the  tenant  informing  him  of  the 
existence  of  the  mortgage,  and  that  the  prin- 
cipal sum  was  still  due  and  owing  together  with 
an  arrear  of  interest,  and  requiring  him  to  pay 
the  rent  thereafter  to  accrue  due  to  them.  The 
rent  which  became  due  at  Michaelmas  being 
still  unpaid,  an  order  was  made  in  an  action 
against  the  mortgagor  appointing  the  plaintiff, 
who  had  recovered  judgment,  receiver  of  the 
rents  of  the  premises,  "  without  prejudice  to  the 
rights  of  any  prior  incumbrancers  who  may 
think  proper  to  take  possession  of  the  same  by 
virtue  of  their  respective  securities."  Subse- 
quently the  mortgagees  threatened  the  tenant 
with  legal  proceedings  unless  he  paid  the  rent 
to  them,  and  the  tenant  thereupon  paid  them 
the  quarter's  rent  due  at  Michaelmas.  The 
receiver  claimed  payment  of  such  rent  from  the 
tenant : — Held,  by  the  Queen's  Bench  Division, 
that  the  tenant's  occupation  after  notice  to  pay 
rent  to  the  mortgagees  was  evidence  from  which 
a  tenancy  to  the  mortgagees  ought  to  be  inferred, 
and  therefore  he  was  justified  in  paying  the 
rent  to  them,  and  could  not  be  liable  for  the 
same  rent  to  the  mortgagor  or  any  one  claiming 
under  him : — Held,  on  appeal,  that  the  tenant 
had  not  been  guilty  of  any  disobedience  of  the 
receivership  order  in  paying  rent  to  the  mort- 
gagees, they  being  prior  incumbrancers  whose 
rights  were  reserved  by  the  order ;  that  the 
tenant,  having  paid  the  rent  to  the  mortgagees 
under  compulsion  of  law  and  in  consequence  of 
his  lessor's  default,  could  set  up  such  payment 
in  answer  to  the  claim  for  the  rent  by  the 
receiver,  who  claimed  through  his  lessor ;  and 
that  consequently  the  claim  of  the  receiver 
could  not  be  maintained.  Johnson  v.  Janes  (9  A. 
&  B.  809)  approved  and  followed.  Uhderhay  v. 
Read,  20  Q.  B.  D.  209  ;  57  L.  J.,  Q.  B.  129  ;  58 
L.  T.  457  ;  36  W.  R.  298— C.  A. 

Kotiee  to  pay  Rent  to  Mortgagee — Mort- 
gagee  entitled  to  Benefit  of  Covenants.]— A 

mortgagor  in  possession  let  the  mortgaged  pro- 
perty without  the  concurrence  of  the  mortgagees. 
The  lease  was  one  authorized  by  8.  18  of  the 
Conveyancing  Act,  1881.  The  lessee  then  ad- 
vanced certain  moneys  to  the  mortgagor  upon 
the  terms  that  the  lessee  should  retain  the  rent 
as  it  became  due  until  the  moneys  were  repaid. 
Subsequently  the  mortgagees  gave  notice  to  the 
lessee  informing  him  of  the  mortgage,  and  re- 
quiring him  to  pay  them  the  rent  thereafter  to 
become  due,  and  not  to  pay  it  to  the  mortgagor. 
The  lessee  having  refused  to  comply  with  the 
notice,  the  mortgagees  brought  an  action  to 
recover  possession  under  a  condition  of  re-entry 
upon   non-payment  of  rent  contained  in  the 


1268 


MORTGAGE — Rights  of  Mortgagees  and  Mortgagors. 


1264 


lease : — Held,  that,  by  the  combined  effect  of 
88. 10  and  18  oi  the  Conveyancing  Act,  1881,  the 
mortgagees,  after  giving  the  above  notice  to  the 
lessee,  were  entitled  as  reversioners  to  enforce 
the  covenants  and  provisions  in  the  lease,  and 
were  therefore  entitled  to  recover  possession  of 
the  property  under  the  condition  of  re-entry; 
and,  farther,  that  the  agreement  between  the 
mortgagor  and  lessee  as  to  the  retention  of  the 
rent  was  not  binding  upon  the  mortgagees. 
Municipal  Permanent  Budding  Society  v.  Smith, 
22  Q.  B.  D.  70  ;  58  L.  J.,  Q.  B.  61 ;  37  W.  B.  42 
— C.A. 

By  Mortgagee!  in  Possession — Clause  binding 
Tenant  to  take  Boer,  &e.,  from  them— Account — 
Interest.] — A  leasehold  public-house  was  mort- 
gaged to  brewers  who  entered  into  possession, 
and  after  carrying  on  the  business  for  some  time, 
leased  the  public-house  to  tenants,  with  agree- 
ments binding  the  tenants  to  take  their  beer,  &c., 
from  them,  under  which  they  derived  a  large 
profit  from  the  sale  of  beer,  &c.  They  after- 
wards sold  the  public-house  under  the  power  of 
sale  in  the  mortgage : — Held,  in  an  action  by 
the  mortgagor  for  an  account,  that  the  mort- 
gagees were  not  entitled  to  interest  on  the  cost 
of  beer  supplied  while  they  were  carrying  on  the 
business ;  that  they  were  not  bound  to  account 
for  the  profits  derived  from  the  sale  of  beer,  &c., 
to  the  tenants  of  the  public-houBe ;  but  that  they 
were  chargeable  with  the  increased  rent  they 
might  have  obtained  if  the  tenants  had  been 
under  no  restriction  as  to  purchasing  their  beer. 
White  v.  City  of  London  Brewery  Company,  89 
Gh.  D.  559  ;  58  L.  J.,  Gh.  98  j  60  L.  T.  19  ;  36 
W.  B.  881— North,  J.  Affirmed  W.  N.,  1889, 
p.  114— C.  A. 

Attornment  Clause — Distress— Whether  a  Bill 
of  Bale.]— See  Bills  of  Sale,  1. 1. 

Distress  by  Mortgagor  in  his  own  Fame.]— A 
mortgagor  in  possession  has,  in  the  absence  of 
interference  by  the  mortgagee,  an  implied 
authority  from  the  mortgagee  to  distrain  upon 
the  tenant  of  the  mortgaged  property  for  the 
rent  due  in  respect  thereof ;  and,  although  it 
may  be  necessary  for  the  mortgagor  to  justify 
the  distress  as  bailiff  of  the  mortgagee,  it  is  not 
necessary  that  the  distress  should  be  made  in 
the  mortgagee's  name.  Reeee  v.  Strousberg,  54 
L.  T.  133  ;  60  J.  P.  292— D. 

Beceivor  appointed  by  Mortgagee — Subse- 
quent Distress  by  Mortgagor.] — A  mortgagee 
appointed  a  receiver  of  the  income  of  the  mort- 
gaged property  under  the  Conveyancing  Act, 
1881,  and  gave  notice  of  the  appointment  to  the 
mortgagor.  The  mortgagor  nevertheless  dis- 
trained for  rent  becoming  due  after  the  appoint- 
ment of  the  receiver.  The  mortgagor  claimed 
to  distrain  for  the  protection  of  the  property, 
alleging  that  the  receiver  had  been  negligent  in 
collecting  the  rent : — Held,  that  an  injunction 
must  be  granted  to  restrain  the  mortgagor  from 
interfering  with  the  receiver  or  receiving  the 
rent.    Bayly  v.  Went,  51  L.  T.  764— Kay,  J. 

Semble,  that  even  if  the  mortgagor  had  proved 
negligence  on  the  part  of  the  receiver,  distraining 
for  the  rent  was  not  the  proper  mode  of  protect- 
ing his  interests.    lb. 


3.  MOBTGAGEES  IF  POSSESSION. 
Lease  by.] — See  supra. 

Power  to  Manage  Block  of  Beeidential  Apart- 
ments.]— A  mortgage  of  a  large  block  of  build- 
ings, let  out  in  residential  apartments,  and  con- 
taining a  common  kitchen  and  salle  a  manger 
for  the  use  of  the  tenants,  contained  an  assign- 
ment of  the  "  rents  and  profits  "  and  a  power  to 
the  mortgagees  to  enter  on  the  hereditaments  on 
default  of  payment  and  "  manage  "  and  receive 
the  rents  and  profits  thereof.  The  deed  con- 
tained no  assignment  of  chattels,  nor  any  refer- 
ence to  existing  arrangements  with  tenants,  bnt 
the  mortgagor  covenanted  to  pay  moneys  ex* 
pended  by  the  mortgagees  for  any  of  the  purposes 
thereby  authorised.  At  the  date  of  the  mortgage 
the  apartments  were  let  out  to  tenants  under 
agreements,  made  by  a  former  mortgagee  (who 
had  been  paid  off),  by  some  of  which  the  tenants 
stipulated  for  the  supply  by  the  landlord  of 
attendance  and  cooked  food,  such  food  being 
generally  supplied  according  to  a  tariff  from 
time  to  time  fixed  by  the  manager.  The  mort- 
gagees having  entered  into  possession,  continued 
to  supply  all  the  tenants,  whether  they  had  con- 
tracted for  the  supply  of  attendance  and  food  or 
not,  with  attendance  and  cooked  food,  and  in  so 
doing  managed  the  premises  at  a  loss  : — Held, 
in  an  action  by  second  mortgagees  for  an 
account,  that  the  first  mortgagees  were  entitled 
to  be  recouped  the  losses  made  by  them  in 
management,  not  only  out  of  the  rents  of  the 
property,  but  out  of  the  surplus  proceeds  of  sale 
thereof.  Bompas  v.  King,  33  Ch.  D.  279 ;  56 
L.  J.,  Ch.  202  ;  55  L.  T.  190— C.  A. 

Mortgage  of  Coal  Mines — Accounts— Valut  oi 
Coal  Improperly  Worked  —  Deductions  —  Costa 
of  Severance  and  of  "Raising.] — The  plaintiffs 
were  mortgagees  in  possession  of  a  colliery,  and 
were  also  treated  by  the  court  as  lessees  of  the 
same  colliery  under  a  lease  for  a  fixed  term  of 
years  at  a  rent  and  a  certain  royalty  for  all  ootl 
gotten.  The  lease  contained  covenants  to  lea?e 
pillars  of  coal  to  support  the  roof  and  not  to 
work  or  remove  the  pillars.  The  mortgagees 
underlet  the  colliery  and  gave  their  sub-lessees 
permission  to  work  and  remove  the  pillars,  which 
they  did  : — Held,  that  in  taking  the  accounts  as 
against  mortgagees  in  possession,  the  mortgagees 
having  allowed  their  sub-lessees  to  take  the 
coal,  must  be  treated  as  having  taken  it  them- 
selves, and,  having  so  taken  it  wrongfully  in 
breach  of  the  covenants  in  the  lease,  most  be 
charged,  not  with  the  amount  of  the  royalty 
reserved,  but  with  the  full  value  of  the  coal, 
subject  to  a  deduction  for  the  costs  of  bringing 
it  to  the  surface,  but  not  for  the  costs  of 
severance  ;  and  the  foreclosure,  which  had  been 
made  absolute  before  the  appeal  was  heard,  was 
reopened.  Livingstone  v.  ilatcyard*  Coal  Com* 
pany  (5  App.  Cas.  25)  distinguished.  Taylor  v. 
Mostyn,  33  Gh.  D.  226  ;  55  L.  J.,  Gh.  893  ;  55 
L.  T.  651— C.  A. 

Beceipt  of  Bents  and  Profit! — How  deter- 
mined.]— The  fact  that  mortgagees  are  in  receipt 
of  the  rents  and  profits  of  the  mortgaged  estate 
does  not  necessarily  make  them  chargeable  as 
mortgagees  in  possession.  The  question  whether 
they  are  mortgagees  in  possession  depends  upon 


1265     MORTGAGE — Remedies  for  Non-payment  of  Mortgage-money.     1266 

whether  they  have  taken  out  of  the  mortgagor's 
hands  the  power  and  duty  of  managing  the  estate 
and  dealing  with  the  tenants.  Noyes  v.  Pollock, 
32  Ch.  D.  63  ;  65  L.  J.,  Ch.  613 ;  54  L.  T. 
473 ;  34  W.  B.  383— C.  A. 

B.  was  the  agent  of  a  mortgagor,  and  received 
the  rents  of  the  estate  for  him,  and  applied  them 
in  payment  of  the  interest  to  the  mortgagees. 
The  mortgagees  wrote  to  B.  inclosing  notices  to 
the  tenants  to  pay  the  rents  to  them,  which  he 
wis  to  serve  on  them  if  the  mortgagor  should 
attempt  to  interfere.  B.  replied  promising  to 
pay  the  rents  to  the  mortgagees,  and  not  to  the 
mortgagor.  The  notices  were  not  served  on  the 
tenants,  but  B.  paid  the  rents  as  he  received 
them  to  the  mortgagees : — Held,  that  the  mort- 
gagees could  not  be  charged  as  mortgagees  in 
possession.    lb. 

Occupation  Bent,  Increase  of— Money  ex- 
ported.]— Where  a  first  mortgagee  in  possession, 
after  decree  for  redemption,  has  expended  money 
on  permanent  improvements  on  the  mortgaged 
property,  he  is  not  to  be  charged  with  an  in- 
creased occupation  rent  by  reason  of  the  value 
of  the  property  having  been  increased  by  the 
improvements  he  has  effected,  unless  the  ex- 

Snditure  in  improvements  is  allowed  to  him. 
right  v.  Campbell,  64  L.  J.,  Ch.  1077 ;  53  L.  T. 
488-C.A. 

appointment  of  Beoeiver.] — Under  s.  25,  sub- 
8. 8,  of  the  Judicature  Act,  1873,  a  mortgagee  in 
possession  is  entitled  to  the  appointment  of  a 
receiver,  notwithstanding  that  he  has  been  paid 
all  his  interest  and  costs  out  of  rents  received  by 
him  while  in  possession,  and  that  he  has  surplus 
rents  in  his  hands.  Mason  v.  Westoby,  32  Ch. 
D.  206 ;  65  L.  J.,  Ch.  507 ;  54  L.  T.  526 ;  34 
W.  R.  498— V.-C.  B. 


4.    IN  OTHEB  CASES. 

liability  of  Valuer  to  Mortgagee  for  Kegli- 
pw*.}—See  Cann  v.  Willson,  ante,  col.  824. 


Bestraining  Mortgagor  cutting  down  Timber.] 
—On  a  motion  by  a  mortgagee  for  an  injunction 
to  restrain  the  mortgagor  from  cutting  timber 
standing  upon  the  mortgaged  land,  it  was  shown 
that  by  a  mortgage  dated  the  19th  March,  1874, 
about  nine  acres  of  agricultural  land  near  Ban- 
buy  were  mortgaged  to  secure  6002.  and  interest. 
In  January,  1 880,  the  mortgagor  advertised  eleven 
trees  standing  upon  the  land  for  sale,  with  other 
timber  standing  on  adjoining  land.  The  mort- 
gagee brought  an  action  for  an  injunction  to  re- 
strain him.  It  was  admitted  that  the  security 
was  insufficient  in  its  present  state.  The  plain- 
tiffs produced  evidence  that  the  land  might  at 
some  time  be  used  as  building  land,  and  for  that 
purpose  the  timber  would  increase  its  value. 
On  the  other  hand  the  mortgagor  produced 
evidence  that  the  chance  of  the  land  becoming 
building  land  was  very  remote,  that  the  trees 
were  ready  to  cut,  and  would  only  deteriorate  if 
left  standing,  and  that  if  they  were  cut  down 
the  land  could  be  let  in  allotments  at  a  higher 
rent  He  offered  to  pay  the  money  received  by 
the  sale  in  reduction  of  the  mortgage  debt.  The 
evidence  as  to  the  deterioration  of  the  timber 
by  standing  was  contradicted:  — Held,  that  the 


mortgagee  had  a  right  to  have  the  timber  left 
standing  on  the  land,  and  the  injunction  must  be 
granted.  Harper  v.  Aplin,  54  L.  T.  883— 
Pearson,  J. 

Voluntary  Settlement — Trust  for  Accumula- 
tion— Trust  for  Benefit  of  Mortgagees.] — By  a 
voluntary  settlement  certain  freehold  estates  were 
settled,  subject  to  the  mortgages  subsisting  there- 
on, to  the  use  of  the  settlor  for  life,  with  remain- 
der to  the  use  of  trustees  for  500  years,  and  sub- 
ject thereto  in  strict  settlement.  And  the  trusts 
of  the  term  were  declared  to  be  that  the  trustees 
should  during  the  period  of  twenty-one  years  from 
the  death  of  the  settlor  receive  out  of  the  rents 
of  the  estate  the  annual  sum  of  1,0007.  and 
accumulate  it  at  compound  interest,  and  should 
at  the  expiration  of  that  period,  or  from  time  to 
time  during  that  period,  as  they  might  think  fit, 
apply  the  accumulated  fund  in  satisfaction  of 
the  mortgages  then  charged  on  the  estate,  and 
should  pay  the  surplus  of  the  rents  to  the  person 
entitled  to  the  immediate  reversion  of  the  estate. 
Seven  years  after  the  death  of  the  settlor  the 
first  tenant  in  tail  in  possession  barred  the  entail 
and  acquired  the  fee  simple  subject  to  the  mort- 
gages ;  and  he  then  claimed  the  right  to  stop  the 
accumulations  and  to  receive  the  accumulated 
fund  and  the  whole  future  rents  of  the  estate : — 
Held,  that  the  mortgagees  were  cestuis  que  trust 
under  the  deed  equally  with  the  owner  of  the 
estate,  and  that  he  could  not  stop  the  accumula- 
tions or  receive  the  accumulated  fund  without 
their  consent  The  doctrine  of  Garrard  v. 
Lauderdale  (2  Buss.  &  My.  451)  does  not  apply 
to  provisions  for  creditors  which  do  not  come 
into  operation  till  after  the  death  of  the  settlor. 
Fitzgerald'*  Settlement,  In  re,  37  Ch.  D.  18  ;  67 
L.  J.,  Ch.  694  ;  57  L.  T.  706 ;  36  W.  B.  385— 
C.A. 

Bight  to  Becover  Mortgage  Deeds.] — See 
Manner*  v.  Mew,  ante,  col.  1250. 

Bight  of  Mortgagee  to  Benewal  of  Licence  of 
Beer-house.]— See  Garrett  v.  Middlesex  JJn 
ante,  cot  1052. 


VII.    BEMEDIE8  FOB  BOB-PAYMENT  07 
M0BTGA0E-M0BET. 

1.   FOBECLOSXJBE. 

a.  Parties. 

Glebe  Land— Patron.] — A  vicar  is  a  person 
having  a  limited  interest  within  the  meaning  of 
s.  3  of  the  Landowners  West  of  England  and 
South  Wales  Land  Drainage  and  Inclosure  Com- 
panies Act,  and  may  charge  his  glebe  land  there- 
under. To  a  foreclosure  action  under  such  a 
mortgage,  the  patron  of  the  living  is  not  a  neces- 
sary party.  Goodden,  v.  Coles.  59  L.  T.  309  ;  36 
W.  B.  828— Kekewich,  J. 

Trustee  of  Equity  of  Bedemption.] — A  mort- 
gagor having  conveyed  the  equity  of  redemption 
together  with  other  property,  to  a  trustee  in 
trust  for  scheduled  creditors : — Held,  in  a  fore- 
closure action,  that  the  trustee  sufficiently  repre- 
sented the  creditors.  Doble  v.  Manley,  28  Ch.  D. 
664  ;  54  L.  J.,  Ch.  636 ;  52  L.  T.  246  ;  33  W.  B. 
409— Chitty,  J. 


court  under  the  Judicature  Act,  1873.  TiUett  v. 
Nixon,  25  Ch.  D.  238  ;  53  L.  J.,  Ch.  199 ;  49 
L.  T.  598  ;  32  W.  R.  226— Pearson,  J. 

After    Foreclosure    absolute.!  —  After 


1267     MORTGAGE — Remedies  for  Non-payment  of  Mortgage-money.    1268 

Infant  Defendant — Bay  to  show  Cause.] — In 
an  action  by  an  equitable  mortgagee,  without 
any  memorandum  of  deposit  of  title-deeds, 
against  the  widow  and  infant  heir-at-law  of  the 
mortgagor  for  foreclosure  : — Held,  on  motion  for 
judgment,  the  defendants  not  having  appeared, 
that  the  infant  heir  must  be  ordered  to  convey 
the  estate  when  he  attained  the  age  of  twenty- 
one  years,  and  that  he  must  have  a  day  to  show 
cause  in  the  usual  way.  Price  v.  Carver  (3  My. 
k  Cr.  157)  followed.  MeUor  v.  Porter,  25  Ch. 
D.  158  ;  53  L.  J.,  Oh.  178  ;  50  L.  T.  49 ;  32 
W.  B.  271— Kay,  J. 

Judgment  for  foreclosure  was  made  absolute 
against  an  infant  without  giving  time  to  show 
cause,  the  mortgagee  offering  to  pay  the  infant's 
costs  as  between  solicitor  and  client,  and  the 
guardian  of  the  infant  being  of  opinion  that  it 
was  for  the  benefit  of  the  infant  that  the  order 
should  be  made,  and  there  being  evidence  that 
the  mortgage  debt  greatly  exceeded  the  value  of 
the  property.  Younge  v.  Cocker,  32  W.  K.  359 — 
Chitty,  J. 


b.    Praotioe. 

Statement  of  Claim— Hon-appearanee.1 — In  a 

foreclosure  action  by  the  transferee  of  the  first 
mortgagee,  the  statement  of  claim  alleged  that 
the  defendants  other  than  the  mortgagor  claimed 
to  have  some  charge  upon  the  mortgaged  pre- 
mises subsequent  to  the  plaintiffs  charge.  None 
of  the  defendants,  including  the  mortgagor,  put 
in  a  defence  or  appeared  at  the  bar  : — Held,  that 
the  plaintiff  was  entitled  to  a  foreclosure  judg- 
ment on  the  pleadings,  allowing  one  period  for 
redemption  as  against  all  the  defendants.  Piatt 
v.  Mendel,  27  Ch.  D.  246  ;  54  L.  J.,  Ch.  1145  ; 
51  L.  T.  424  ;  32  W.  R.  918— Chitty,  J. 

Bequest  for  Sale  by  Parties  Interested.] — In 
an  action  for  foreclosure  by  first  mortgagees  of  a 
building  estate  at  Manchester,  the  second  mort- 
gagees and  mortgagor  requested  a  sale,  and 
offered  to  pay  into  court  a  sum  sufficient  to  meet 
the  costs  of  sale.  The  value  of  the  estate  was 
insufficient  to  cover  what  was  due  on  the  first 
mortgage ;  but  the  applicants  produced  evidence 
stating  that  since  the  date  of  the  action  such 
value  had,  in  consequence  of  the  subsequent 
passing  of  the  Manchester  Ship  Canal  Act,  in- 
creased, and  was  likely  to  continuously  increase  : 
— Held,  that  the  court  had  no  power  to  grant 
the  application,  notwithstanding  the  discretion 
conferred  by  the  Conveyancing  Act,  1881,  s.  26, 
sub-8.  2.  Merchant  Banking  Company  v.  Lon- 
don and  Hanseatic  Bank,  55  L.  J.,  Ch.  479 — 
Chitty,  J. 

At  the  request  of  a  second  mortgagee,  the  court 
ordered  a  sale  of  some  settled  property  that  had 
been  mortgaged,  and  for  foreclosure  in  case  a 
sale  were  not  effected.  Saul  v.  Pattinson,  55 
L.  J.,  Ch.  831  ;  54  L.  T.  670 ;  34  W.  R.  561— 
Pearson,  J. 

Appointment  of  Beoeiver.] — A  legal  mortgagee 
being  in  possession  of  the  mortgaged  property, 
applied  to  the  court  for  the  appointment  of  a 
receiver  : — Held,  that  although  the  mortgagee 
might,  under  the  Conveyancing  Act,  1881,  ap- 
point a  receiver  without  coming  to  the  court,  it 
was  more  desirable,  where  an  action  was  pend- 
ing, that  the  appointment  should  be  made  by  the 


judgment  for  foreclosure  absolute,  the  action 
being  at  an  end,  the  plaintiff  cannot  obtain  an 
order  for  the  appointment  of  a  receiver  of  the 
mortgaged  property,  even  though  the  convey- 
ance of  the  property  to  the  plaintiff  remains  to 
be  settled.  Wills  v.  Luff,  38  Ch.  D.  197 ;  57 
L.  J.,  Ch.  563 ;  36  W.  R.  571  —  Chitty,  J. 
Affirmed  W.  N.  1888,  p.  191— C.  A. 

Mortgagor  in  Possession — Occupation  Bent 
— Receiver.  J — In  a  foreclosure  action  against  a 
mortgagor  in  possession,  an  order  having  been 
made  for  the  appointment  of  a  receiver  and  for 
the  tenants  to  attorn  and  pay  their  rents  in 
arrear  and  growing  rents  to  such  receiver:— 
Held,  that  the  possession  of  the  mortgagor  being 
rightful,  he  was  liable  to  pay  an  occupation  rent 
from  the  date  of  demand  by  the  receiver  only, 
and  not  from  the  date  of  the  order  appointing 
the  receiver.  Yorkshire  Banking  Company  v. 
Mullan,  35  Ch.  D.  125  ;  56  L.  J„  Ch.  562 ;  6S 
L.  T.  899  ;  35  W.  B.  593— Chitty,  J. 

Counter-claim  for  Account  —  Particulars  of 
Beeeipts.] — It  was  alleged  by  counter-claim  to 
a  redemption  action  that  the  mortgage  com- 
prised :  (1)  certain  commission  ;  (2)  a  sum  also 
secured  by  bills  of  exchange ;  (3)  a  sum  due  on 
open  account,  and  that  the  mortgagee  had  re- 
ceived divers  sums  in  respect  of  the  bills  of 
exchange  and  on  the  open  account.  The  mort- 
gagee counter-claimed  for  an  account  and  fore- 
closure or  sale.  Particulars  of  the  sums  recerred 
by  him  on  the  bills  of  exchange  and  open 
account  were  ordered  to  be  given.  Kemp  r. 
Goldberg,  36  Ch.  D.  505;  56  L.  T.  736- 
North,  J. 

Accounts  and  Inquiries.]  —  In  foreclosure 
actions  where  there  is  no  preliminary  question 
to  be  tried,  the  plaintiff  may  obtain,  under  Boles 
of  Supreme  Court,  1883,  Ord.  XV.,  an  order  for 
an  account  with  all  necessary  inquiries,  and  the 
usual  directions  as  in  a  common  foreclosure 
judgment  nisi  Such  order  should  be  applied 
for  by  summons  in  chambers,  and  not  by  motion 
in  court,  and  only  the  costs  of  a  summons  in 
chambers  attended  by  counsel  will  be  allowed, 
Smith  v.  Davits,  or  Davies  v.  Smith,  28  Ch.  D. 
650  ;  64  L.  J.,  Ch.  278  ;  52  L.  T.  19 ;  33  W.  B. 
211— Chitty,  J. 

Improvements  by  Mortgagee  in  Posses- 


sion.]— In  a  foreclosure  action  by  a  first  mort- 
gagee, who  was  also  third  mortgagee,  and  the 
mortgagor,  the  plaintiff  having  entered  into 
possession  of  the  mortgaged  property  and  laid 
out  sums  of  money  in  lasting  improvements,  an 
account  was  directed  of  all  the  sums  "  properly" 
laid  out  by  the  plaintiff  "as  mortgagee"  in 
lasting  improvements  upon  the  property.  Hovg^' 
ton  v.  Sevcnoaks  Estate  Company,  33  W.  B.  341 
— Pearson,  J. 

Interest— Form  of  Order.]— A  mortgagee 


claimed  payment,  or,  in  default,  sale  or  fore- 
closure. Judgment  was  given  for  immediate 
payment  of  principal  and  interest  proved  to  be 
due,  and,  in  default,  for  foreclosure,  the  account 


1269     MOETGAGE — Remedies  for  Non-payment  of  Mortgage-money.    1270 

mortgaged  property  had  been  seriously  damaged 
by  the  improper  working  of  the  mortgagees  in 
possession,  or  persons  acting  under  their 
authority : — Held,  that  the  mortgagors  should 
not  be  absolutely  foreclosed  and  left  to  the 
remedy  of  proceeding  against  the  plaintiffs, 
either  as  mortgagees  or  as  lessees  in  respect  of 
their  breach  of  the  covenants  of  the  lease,  but 
were  entitled  to  an  inquiry  with  reference  to  the 
injury  caused,  and  to  a  declaration  charging  the 
plaintiffs  with  the  amount  of  the  loss  or  damage 
caused  thereby.  Such  an  inquiry  should  be 
obtained  either  by  means  of  a  supplemental 
judgment,  or  by  an  addition  to  the  existing 
judgment.  Taylor  v.  Mostyn,  88  Ch.  D.  226  ;  55 
L.  J.,  Ch.  893  ;  55  L.  T.  651— C.  A. 


being  directed  with  interest  at  the  rate  provided 
by  the  mortgage,  the  plaintiff  bringing  into 
account  what,  if  anything,  should  be  received 
under  the  judgment.  Lee  v.  Dunsford,  54  L.  J.. 
Ch.  108 ;  61  L.  T.  590— North,  J. 

Sight  of  Defendants  to  insist  on  Plain- 
tiff's bringing  in  Account  —  Amendment  of 
Summons.] — Mortgagees  for  a  term  of  a  colliery 
brought  an  action  for  foreclosure,  seeking  de- 
clarations that  the  original  mortgage  deed  was  a 
good  exercise  of  a  power  of  leasing,  and  that  the 
soma  secured  by  a  later  deed  were  also  charged 
on  the  term  created  by  the  first  deed.  They 
obtained  a  decree  giving  them  the  declarations 
asked,  and  directing  the  usual  accounts  in  the 
case  of  mortgagees  in  possession,  with  directions 
for  foreclosure  in  default  of  payment.  A 
summons  was  taken  out  by  the  defendants  to 
proceed  with  the  judgment,  and  the  chief  clerk 
directed  the  plaintiffs  to  bring  in  their  accounts 
by  a  certain  day,  but  no  order  to  that  effect  was 
drawn  up.  The  plaintiffs  afterwards  having 
refused  to  bring  in  their  accounts  on  the  ground 
that,  as  they  alleged,  the  moneys  remaining  due 
to  them  were  many  times  more  than  the  value  of 
the  mortgaged  property,  and  that  taking  the 
accounts  would  therefore  be  useless,  the  defen- 
dants applied  on  summons  for  an  order  that  the 
plaintiffs  might  bring  them  in  in  four  days,  not 
asking  any  alternative  relief.  The  applica- 
tion was  refused  on  the  ground  that  the  defen- 
dants were  not  entitled  to  a  four-day  order.  The 
defendants  appealed : — Held,  that  the  summons 
must  be  treated  as  if  it  had  been  asked  that  the 
plaintiffs  might  bring  in  their  accounts  in  four 
days,  or  in  such  other  time  as  the  court  might 
think  fit,  the  summons,  if  necessary,  being 
amended ;  and  that  as  the  plaintiffs  had  taken  a 
foreclosure  decree,  the  defendants  were  entitled 
to  have  the  accounts  brought  in,  but  that  the 
order  should  be  prefaced  with  a  statement  that 
they  required  them  to  be  brought  in.  Taylor  v. 
Jfotfyw,  25  Ch.  D.  48  ;  53  L.  J.,  Ch.  89  ;  49 
L.  T.  483  ;  32  W.  R.  256— C.  A. 

Whether  this  statement  would  give  the  court 
jurisdiction  as  to  the  costs  if  it  turned  out  that 
the  accounts  had  been  asked  for  vexatiously  and 
unreasonably,  and  whether  the  court  would  not 
on  a  substantive  application  by  the  plaintiffs 
stay  the  taking  the  accounts  if  it  was  satisfac- 
torily shewn  that  taking  them  would  be  useless, 
quaere.    lb. 

Account  of  Costs.]— The  plaintiff  in  a 

foreclosure  action  is,  as  a  general  rule,  entitled 
to  an  account  of  only  principal  and  interest  due 
to  him  on  his  mortgage,  and  of  the  costs  of  the 
action.  To  entitle  him  to  an  account  of  any  other 
costs  he  must  make  out  a  special  case.  But, 
where  the  plaintiff  was  the  transferee  of  a  mort- 
gage, on  wnich  interest  was  overdue  at  the  date 
of  the  transfer,  and  the  mortgagor  was  a  bank- 
rupt : — Held,  that  the  plaintiff  was  entitled  to 
an  account  of  costs  generally.  JJolingbroke  v. 
Hinde,  25  Ch.  D.  795  ;  53  L.  J.,  Ch.  704  ;  32 
W.  R.  427— Pearson,  J. 

Adding  Accounts  and   Inquiries    after 

Judgment.] — When  some  time  after  a  judgment 
of  foreclosure  directing  accounts  against  the 
plaintiffs  as  mortgagees  in  possession,  but  con- 
taining no  inquiry  or  direction  as  to  improper 
working,  a  probable  case  was  made  out  that  the 


Order  for  Sale— Conduct  of  Sale — Security 
for  Costs  of  Sale.] — An  action  having  been 
brought  to  foreclose  an  equitable  mortgage,  the 
plaintiff  at  the  hearing  asked  for  a  sale.  The 
defendants  did  not  oppose  this,  but  they  wished 
to  have  the  conduct  of  the  sale.  The  parties 
left  it  to  the  judge  to  decide  who  should  have  the 
conduct : — Held,  that  the  defendants  ought  to 
have  the  conduct,  because  it  was  most  to  their 
interest  to  obtain  the  best  possible  price  for  the 
property  : — Held,  also,  that,  inasmuch  as  the 
defendants  alone  would  be  liable  for  the  costs  of 
the  sale,  there  was  no  reason  for  requiring  them 
to  give  security  for  the  costs.  Woolley  v.  Cole- 
man (21  Ch.  D.  169)  not  followed  as  to  such 
security.  Ordered,  that  the  sale  should  take 
place  out  of  court,  and  that  the  proceeds  of  sale 
should  be  paid  into  court.  Davies  v.  Wright, 
32  Ch.  D.  220— North,  J. 

Default  of  Appearance — Judgment  for  Sum  due 
on  Covenant — Aotion  for  Aooount  and  Fore- 
closure.]— A  writ  was  indorsed  with  a  claim  for 
an  account  of  principal,  interest,  and  costs  on  a 
mortgage  security,  and  for  foreclosure  or  sale, 
and  also  with  a  claim  for  a  specific  sum  for 
principal  and  interest  due  under  a  covenant  in 
the  mortgage  deed.  The  defendant  did  not 
appear,  and  no  statement  of  claim  was  delivered. 
The  plaintiff  moved,  under  Ord.  XIII.  r.  3, 
for  liberty  to  forthwith  sign  final  judgment  for 
the  amount  indorsed  on  the  writ,  and  under 
Ord.  XV.,  for  the  usual  foreclosure  judgment 
nisi : — Held,  that  under  Ord.  XIII.  r.  3,  the 
plaintiff  was  entitled  to  sign  judgment  for  the 
liquidated  demand,  notwithstanding  that  the 
writ  was  also  indorsed  with  a  claim  for  an 
account  and  foreclosure,  but  that  he  was  not 
entitled  under  Ord.  XV.  to  a  foreclosure  judg- 
ment. Observations  on  Blake  v.  Harvey  (29  Ch. 
D.  827).  Bluett  v.  Jones,  32  Ch.  D.  635  ;  55 
L.  J.,  Ch.  648 ;  54  L.  T.  603  ;  34  W.  R.  591— 
Chitty,  J. 

Action  for  Bodemption  and  Foreclosure — 
Form  of  Judgment.] — In  an  action  by  a  second 
mortgagee  to  redeem  the  first  mortgagee,  and  to 
foreclose  the  mortgagor,  the  proper  form  of  judg- 
ment is,  that  in  default  of  the  plaintiff  redeem- 
ing the  action  is  to  stand  dismissed  with  costs. 
Uallett  v.  Furze,  31  Ch.  D.  812  ;  55  L.  J.,  Ch. 
226  ;  54  L.  T.  12  ;  34  W.  R.  225— Kay,  J. 

Form  of  Judgment — Action  on  Covenant  and 
for  Foreoloiure — Time.] — A  mortgagee  being 
now  entitled  to  combine  in  one  action  his  right 
to  judgment  on  the  mortgage  covenant  against 
the  mortgagor  personally,  with  his  right  to  fore- 


closure,  is  entitled  : — (a)  If  the  amount  of  debt 
and  interest  is  proved,  admitted,  or  agreed  to  at 
the  trial,  to  judgment  for  immediate  payment 
of  the  whole  amount ;  (b)  If  the  amount  is  not 
so  proved,  admitted,  or  agreed  to,  to  an  account 
of  what  is  due  to  him  for  principal  and  interest 
in  respect  thereof,  and  to  judgment  for  payment 
of  the  whole  amount  immediately  the  same  is 
certified — unless  in  either  case  the  judge  in  his 
discretion  gives  time.  Semble,  the  allowance 
of  one  month  for  payment  from  the  date  of  the 
certificate  is  a  reasonable  exercise  of  such  dis- 
cretion. Farrer  v.  Lacy,  31  Ch.  D.  42  ;  55  L.  J., 
Oh.  149 ;  53  L.  T.  515 ;  34  W.  R.  22— C.  A. 


Personal  Judgment  against  Mortgagor.] 


1271     MORTGAGE — Remedies  for  Non-payment  of  Mortgage-money.    1272 

A.,  a  first  mortgagee,  brought  an  action  for 
foreclosure  against  the  mortgagor,  his  trustee  in 
bankruptcy,  and  two  subsequent  incumbrancers, 
G.  and  B.  The  defendants  all  appeared,  and 
both  C.  and  R.  delivered  defences.  C.'b  de- 
fence alleged  that  his  mortgage  was  registered 
in  Middlesex  without  notice,  and  therefore  had 
priority  over  R.  R.'b  defence  made  no  answer 
to  this  allegation.  At  the  hearing  A.  asked  for 
a  foreclosure  decree,  giving  only  one  period  of 
redemption  for  all  the  defendants.  C.  and  B. 
both  claimed  that  the  decree  should  give  suc- 
cessive periods  for  redemption  : — Held,  that  the 
mere  fact  that  R.'s  defence  did  not  deny  the 
allegation  of  priority  in  C.'s  defence  could  not 
be  taken  as  an  admission  by  R.  of  the  priority 
of  C.'s  mortgage ;  that,  therefore,  the  priorities 
were  in  dispute,  and  the  plaintiff  was  entitled 
to  have  only  one  period  of  redemption,  as  in 
Bartlett  v.  Bees  (12  L.  R.,  Eq.  395).  Semble, 
even  in  a  case  in  which  the  priorities  are  not  in 
dispute,  the  court  will  not  now  give  successive 
periods  for  redemption.  Tnfdnell  v.  Nic\oli*, 
56  L.  T.  152— North,  J. 

A  first  mortgagee  is  prima  facie  entitled  to  a 
judgment  in  a  foreclosure  action  limiting  only 
one  period  for  redemption,  both  as  against  sob- 
sequent  incumbrancers  and  the  mortgagor,  and 
where  there  are  conflicting  claims  as  to  priority 
between  co-defendants,  the  practice,  as  settled 
by  Bartlett  v.  Bee*  (12  L.  R.,  Bq.  396),  is  to 
grant  only  one  period  for  redemption.  Where, 
however,  the  defendants  have  put  in  a  defence  or 
appeared  at  the  bar  and  have  proved  or  offered 
to  prove  their  incumbrances,  and  there  is  no 
question  of  priority  between  them,  the  court  will 
at  the  request  of  the  puisne  incumbrancers,  bat  not 
at  the  request  of  the  mortgagor,  limit  successive 
periods  for  redemption.  A  mortgagor  has  no 
right  in  himself  to  more  than  one  period  of  six 
months  to  redeem.  Piatt  v.  Mendel,  27  Ch.  D. 
246  ;  54  L.  J.,  Ch.  1145  ;  51  L.  T.  424 ;  32  W.  R 
918— Chitty,  J. 

In  a  foreclosure  judgment  against  the  mort- 
gagor and  subsequent  incumbrancers,  only  one 
period  for  redemption  will  be  fixed  where  none 
of  the  defendants  appear  on  the  motion  for 
judgment ;  whether  it  is  alleged  by  the  state- 
ment of  claim  that  the  subsequent  incumbrancers 
are  "  entitled,"  or  only  that  they  "  claim  to  be 
entitled"  to  charges  upon  the  mortgage  pre- 
mises. DoUe  v.  Manley,  28  Ch.  D.  664  ;  54  L.  J., 
Ch.  636  ;  52  L.  T.  246  ;  33  W.  R.  409— Chitty,  J. 


— Form  of  judgment  in  a  foreclosure  action, 
when  a  personal  judgment  is  taken  against  the 
mortgagor  on  his  covenant  for  payment  of  prin- 
cipal and  interest.  The  form  in  Grundy  v.  Grice, 
Seton  on  Decrees,  4th  Ed.  vol.ii.,  p.  1036  (Form 
No.  2)  modified.  Hunter  v.  Myatt,  28  Ch.  D. 
181  ;  54  L.  J.,  Ch.  615 ;  52  L.  T.  509  ;  33  W.  R. 
411 — Pearson,  J. 

Where  a  mortgagor  in  his  defence  to  a  fore- 
closure action  did  not  admit  the  mortgage  debt, 
but  afterwards  admitted  it  at  the  trial,  the 
court,  in  giving  judgment  for  personal  payment 
under  the  covenant  and  for  foreclosure,  declined 
to  grant  a  month's  time  for  payment.  Instone 
v.  Elmslie,  54  L.  T.  730  ;  34  W.  R.  592— Stirling, 
J. 

Time  for  Redemption — Several  Defendants — 
One  Period.] — The  settled  practice  of  the  court 
in  a  foreclosure  action,  where  there  are  incum- 
brances subsequent  to  that  of  the  plaintiff,  to 
grant  successive  periods  of  redemption  to  the 
subsequent  incumbrancers  and  the  mortgagor, 
will  only  be  departed  from  where  special  reason 
for  so  doing  is  shewn.  Lewis  v.  Aberdare  and 
Plymouth  Company,  53  L.  J.,  Ch.  741 ;  50  L.  T. 
461— Kay,  J. 

The  fact  that  there  is  a  contest  as  to  priorities 
between  the  subsequent  incumbrancers  maybe  a 
reason  for  departing  from  the  ordinary  practice. 
lb. 

Where  such  a  contest  was  raised  upon  the 
pleadings,  and  the  nature  of  the  property  and 
other  special  circumstances  were  such  as  to 
render  any  delay  peculiarly  disadvantageous  to 
the  plaintiffs,  the  court  fixed  one  period  of  nine 
months  for  redemption  by  the  mortgagors  (a 
company  in  liquidation),  and  two  sets  of  incum- 
brancers subsequent  to  the  plaintiffs.    lb. 

As  a  general  but  not  invariable  rule,  when 
there  are  several  defendants  to  a  foreclosure 
action,  one  period  for  redemption  should  be 
allowed  to  all  the  defendants.  Mutual  Life 
Assurance  Society  v.  Langley,  26  Ch.  D.  686  ;  51 
L.  T.  284  ;  32  W.  R.  792— Pearson,  J. 

Where  there  were  two  defendants  to  a  fore- 
closure action — the  mortgagor  and  a  second  mort- 
gagee who  had  joined  in  the  plaintiff's  security 
to  postpone  his  previously  prior  right,  and  as 
surety  for  the  plaintiff : — Held,  that  only  one 

Seriod  of  six  months  should  be  allowed  for  re- 
emption  by  both  defendants.  Bartlett  v.  Bees 
(12  L.  R.,  Eq.  395),  and  General  Credit  and 
Viscount  Company  v.  Glegg  (22  Ch.  D.  649) 
followed.  Smith  v.  Olding,  25  Ch.  D.  462  ;  54 
L.  J.,  Ch.  250 ;  60  L.  T.  357 ;  32  W.  R.  386— 
Pearson,  J.  Contra,  Sweet  v.  Combley,  25  Ch.  D. 
463  n.— Fry,  J. 


Foreclosure  absolute — Evidence  of  Ken-pay- 
ment—Personal  Affidavit.] — A  mortgagee  had 
obtained  a  foreclosure  judgment  nisi,  and  now 
moved  the  court  to  grant  him  foreclosure 
absolute.  He  had  made  no  affidavit  of  non- 
payment of  moneys  due  to  him,  but  the  solid- 
tor's  clerk,  who  attended  on  his  behalf  to  re- 
ceive the  money  due  on  the  security,  had  made 
an  affidavit  of  non-payment.  The  defendant 
had  not  appeared  in  the  action  since  its  com- 
mencement : — Held,  that,  on  a  motion  by  a  mort- 
gagee for  foreclosure  absolute,  the  plaintiffs  per- 
sonal affidavit  of  non-payment  might  be  dis- 
pensed with,  in  spite  of  the  contrary  practice 
laid  down  in  Seton  on  Decrees,  4th  edit  p.  1091. 
Frith  v.  Cooke,  52  L.  T.  798 ;  38  W.  R.  688- 
Chitty,  J. 

Upon  an  application  for  an  order  for  fore- 
closure absolute,  where  an  affidavit  of  non-pay- 
ment had  been  made  by  the  person  attending  on 


1278     MORTGAGE — Remedies  for  Non-payment  of  Mortgage-money.     1274 

Where  an  order  nisi  for  foreclosure  and  pos- 
session had  been  made,  the  order  absolute  also 
provided  for  possession  and  was  made  ex  parte. 
Withall  v.  Nixon,  28  Ch.  D.  413  ;  54  L.  J.,  Ch. 
616  ;  33  W.  R.  665— Pearson,  J. 

Receipt  of  Rents,  &o.,  by  Receiver— Moot  of 
— Order.] — Where  a  receiver  has  received  rents 
of  mortgaged  property  between  the  date  of  the 
certificate  under  a  foreclosure  judgment  and  the 
day  fixed  for  redemption,  the  mortgagee  is  not 
entitled  to  the  rents  so  received,  except  on  the 
terms  of  bringing  them  into  account  as  between 
mortgagee  and  mortgagor,  and  a  fresh  date  must 
be  fixed  for  redemption.  Jenner-Fust  v.  Need- 
ham,  32  Ch.  D.  582  ;  55  L.  J.,  Ch.  629  ;  55  L.  T. 
37  ;  34  W.  R.  709— C.  A. 

The  court  to  save  the  expense  and  delay  of  a 
further  reference  to  chambers  allowed  mortgagees 
to  file  an  affidavit  showing  the  exact  amount 
which  would  be  due  to  them  for  principal, 
interest,  and  costs,  after  allowing  for  everything 
received,  brought  down  to  the  day  for  which 
notice  of  motion  was  given  to  fix  another  day 
for  redemption.    lb. 

In  a  foreclosure  action  the  fact  that  a  receiver 
appointed  by  the  court  has  received  rents  since 
the  certificate  under  the  order  nisi,  is  no  bar  to 
an  immediate  order  of  foreclosure  absolute  on 
default  of  payment  pursuant  to  the  certificate. 
Hoare  v.  Stephens,  32  Ch.  D.  194  ;  65  L.  J.,  Ch. 
511  ;  54  L.  T.  230  ;  34  W.  R.  410— V.-C.  B. 

The  receiver,  appointed  before  judgment  in  a 
foreclosure  action,  received  rents  both  before  and 
after  the  day  fixed  for  payment  of  the  mortgage 
money : — Held,  that  a  further  account  must  be 
taken,  and  a  further  period  of  one  month  from 
the  date  of  the  new  certificate  given  to  the 
mortgagor  to  redeem.  Peat  v.  Nicholson,  54 
L.  T.  569  ;  34  W.  R.  451— Kay,  J. 

At  the  date  limited  for  redemption  in  a  fore- 
closure action,  money  was  in  court  and  in  the 
hands  of  a  receiver  paid  under  a  mining  lease 
since  the  issue  of  the  chief  clerk's  certificate. 
The  foreclosure  judgment  gave  liberty  to  any 
person  redeeming,  or,  in  the  event  of  foreclosure, 
to  the  plaintiffs,  to  apply  for  payment  to  them- 
selves of  funds  in  court  or  in  the  hands  of  the 
receiver  : — Held,  that  the  plaintiffs  were  entitled 
to  an  immediate  order  for  foreclosure  absolute, 
and  for  payment  of  the  money  in  court  and  in 
the  hands  of  the  receiver  without  any  further 
account.  Jenner-Fust  v.  Needhant  (32  Ch.  D. 
582)  distinguished.  Coleman  v.  Llewellin,  34 
Ch.  D.  143  ;  56  L.  J.,  Ch.  1 ;  66  L.  T.  647 ;  35 
W.  R.  82— C.  A. 

Where  a  receiver  was  appointed  after  a  judg- 
ment for  foreclosure,  and  there  was  a  balance  in 
his  hands  representing  the  corpus  of  the  mort- 
gaged property,  the  plaintiff  was  held  to  be 
entitled  to  have  the  foreclosure  judgment  made 
absolute.  Welch  v.  National  Cycle  Works  Com- 
pany, 56  L.  T.  673  ;  35  W.  R.  137— Chitty,  J. 

The  receiver  and  manager,  appointed  before 
judgment  in  a  foreclosure  action,  received 
moneys  that  represented  the  gross  takings  in  the 
business  of  the  mortgaged  property,  which  was 
a  leasehold  public-house.  The  moneys  were 
received  from  day  to  day,  partly  before  and 
partly  after  the  date  fixed  for  redemption.  The 
court  made  a  final  order  for  foreclosure,  and 
directed  that  the  receiver  and  manager  should 
pass  forthwith  his  final  account,  and  be  dis- 
charged, his  recognisance  and  bond  to  be  vacated. 


behalf  of  the  plaintiff  to  receive  the  mortgage 
moneys,  the  court  declined  to  dispense  with  an 
affidavit  by  the  plaintiff  stating  that  he  had  not 
received  the  mortgage  moneys  between  the  date 
of  attendance  and  the  date  of  the  application. 
Barrow  v.  Smith,  52  L.  T.  798  ;  33  W.  R.  743— 
Kay,  J. 

Enlarging   Time   fixed    for.]  —  Where 

mortgaged  premises  afford  an  ample  security  for 
the  mortgage  debt  and  interest,  the  court  will, 
when  there  is  a  reasonable  prospect  of  the  mort- 
gagor being  able  to  discharge  the  debt,  enlarge 
the  time  fixed  for  foreclosure  absolute  upon 
immediate  payment  by  the  mortgagor  to  the 
mortgagee  of  a  substantial  portion  of  the  interest 
accrued  due  and  costs.  Forrest  v.  Shore,  82 
W.  R.  356— V.-C.  B. 

Goodwill  of  Basinets — Form  of  Order.]  — 
Where  after  the  commencement  of  a  foreclosure 
action  concerning  certain  property,  subject  to  a 
mortgage  which  included  the  goodwill  of  a 
business,  a  receiver  and  manager  had  been 
appointed,  the  court  directed  a  proviso  to  be 
inserted  in  the  order  for  foreclosure,  that  any 
person  redeeming,  or  in  the  event  of  foreclosure, 
the  plaintiff,  should  be  at  liberty  to  apply  to 
the  judge  in  chambers  for  payment  of  any 
money  in  court,  or  in  the  hands  of  the  receiver. 
8mitk  v.  Pearman,  58  L.  T.  720  ;  36  W.  R.  681 
-Chitty,  J. 

Order  for  Delivery  of  Possession.] — A  sum- 
mons for  foreclosure  asked  for  delivery  of  pos- 
session in  the  event  of  foreclosure.  The  usual 
foreclosure  order  was  made  without  any  direction 
as  to  delivery  of  possession.  Default  in  payment 
having  been  mack,  the  order  for  foreclosure  was 
made  absolute.  The  plaintiff  then  moved  in  the 
action  for  an  order  on  the  defendant  to  deliver 
np  possession  of  the  mortgaged  property  : — Held, 
that  such  an  order  ought  to  be  made,  and  that 
the  plaintiff  ought  not  to  be  obliged  to  bring  a 
new  action  for  the  purpose  of  recovering  posses- 
ion. Keith  v.  Day,  39  Ch.  D.  452  ;  58  L.  J.,  Ch. 
118;  60  L.  T.  126  ;  37  W.  R.  242— C.  A. 

An  order  for  foreclosure  absolute  in  a  fore- 
closure action  commenced  by  summons  may,  as 
Against  the  defendant  mortgagor  in  possession 
(he  having  been  served  and  not  appearing) 
include  an  order  for  delivery  of  possession  by 
him  to  the  plaintiff,  even  though  the  summons 
did  not  ask  for  delivery  of  possession.  Best  v. 
AppUffate,  37  Ch.  D.  42  ;  67  L.  J.,  Ch.  506  ;  57 
L  T.  599 ;  36  W.  R.  397— North,  J. 

Under  Ord.  XVIII.  r.  2,  of  the  Rules  of  the 
8upreme  Court,  Dec.  1885,  the  court  has  juris- 
diction in  a  foreclosure  action  to  order  delivery 
of  possession  where  possession  is  asked,  not 
against  a  third  party,  but  against  the  mortgagor, 
notwithstanding  that  the  plaintiff  has  not 
*tked  for  possession  either  in  the  writ  or  state- 
ment of  claim.  Salt  v.  Edgar,  64  L.  T.  374— 
Chitty,  J. 

The  minutes  of  the  order  in  a  mortgagee's 
«tion,  where  possession  of  the  mortgaged 
premises  is  (inter  alia)  claimed,  should  contain 
»  direction  that,  in  default  of  the  defendant 
redeeming,  he  should  deliver  up  possession  of  the 
mortgaged  premises  to  the  plaintiff,  inasmuch  as 
the  order  for  possession  is  a  conditional  order 
ttke  a  foreclosure  order,  and  requires  to  be  made 
absolute  like  a  foreclosure  order.  Williamson 
▼.  Burrage,  66  L.  T.  702— Chitty,  J. 


1275      MORTGAGE — Remedies  for  Non-payment  of  Mortgage-money.    1276 


The  court  also  directed  that  the  balance  of  the 
moneys  on  the  receiver's  account  should  be  paid 
into  court,  and  gave  liberty  to  any  of  the  parties 
to  apply  in  chambers  as  to  such  balance,  and 
also  as  to  the  costs  of  the  present  application, 
such  costs  being  reserved.  Holt  v.  Beagle,  66 
L.  T.  592— Kay,  J. 

Beceipt  of  Bent   by  Mortgagees— Order.]— 

Upon  a  motion  by  mortgagees  for  judgment  for 
foreclosure  absolute,  and  possession  of  the  pro- 
perty, to  which  the  mortgagor  did  not  appear, 
and  the  mortgagees  had  received  rents  since  the 
date  of  the  certificate,  the  court  enlarged  the 
time  for  redemption  by  one  month,  and  directed 
the  plaintiffs  to  file  and  deliver  to  the  registrar 
an  affidavit  showing  what  would  be  the  balance 
due  to  them  up  to  that  date  for  principal, 
interest,  and  costs  :  and  ordered  that,  if  the 
amount  should  not  be  paid,  the  defendant  should 
be  absolutely  foreclosed,  and  the  plaintiffs  should 
have  possession  of  the  property.  Lacon  v. 
Tyrrell,  56  L.  T.  483— Stirling,  J. 


Opening  Foreclosure.] — In  an  action  by 


executors  of  a  mortgagee  against  the  mortgagor 
and  a  puisne  mortgagee  an  order  nisi  for  fore- 
closure was  made,  giving  successive  periods  of 
redemption.  After  the  time  fixed  for  redemp- 
tion, and  before  final  judgment  was  obtained 
against  the  puisne  mortgagee,  and  before  the 
expiration  of  the  time  allowed  to  the  mortgagor, 
the  plaintiffs  received  a  sum  of  money  for  rent. 
A  further  account  had  been  taken  against  the 
mortgagor,  and  a  further  day  fixed  for  redemp- 
tion by  him  : — Held,  that  it  was  irregular  to  fix 
a  further  time  for  the  mortgagor  to  redeem 
until  the  puisne  mortgagee  had  been  finally 
foreclosed  ;  and  that  the  receipt  of  moneys  for 
rent  after  the  time  fixed  for  the  puisne  mort- 
gagee to  redeem  and  before  final  judgment 
obtained  against  him  did  not  open  the  fore- 
closure against  him.  The  order  was  to  foreclose 
the  puisne  mortgagee  absolutely,  and  to  take 
a  further  account  against  the  mortgagor. 
Webster  v.  Patteson,  25  Ch.  D.  626  ;  53  L.  J., 
Ch.  621  ;  50  L.  T.  252  ;  32  W.  B.  581— Kay,  J. 


o.  Costs. 

County  Court  Scale.] — In  an  action  to  fore- 
close a  mortgage  for  65Z.  18*.  \0d.,  where  both 
plaintiff  and  defendant  lived  at  the  same  place  : 
— Held,  that  the  plaintiff  was  entitled  only  to 
such  costs  as  he  would  have  obtained  in  the 
county  court.  Simons  v.  McAdam  (6  L.  B.,  Eq. 
324)  followed.  Crazier  v.  Boimett.  31  Ch.  D. 
67  ;  55  L.  J.,  Ch.  210  ;  53  L.  T.  592  ;  34  W.  B. 
267— V.-C.  B. 

Mortgage  of  Two  Estates  by  same  Mortgagor.  ] 

— When  a  mortgagee  brings  an  action  to  fore- 
close two  mortgages  of  two  distinct  estates,  but 
which  mortgages  are  by  force  of  the  statute  or 
•otherwise  not  liable  to  be  consolidated,  the  costs 
of  the  action  are  not  to  be  charged  against  each 
estate,  but  must  be  apportioned  rateably 
between  the  two  estates.  Clapliam,  v.  Andrews 
<27  Ch.  D.  679)  overruled.  Be  Caux  v.  Skipper, 
31  Ch.  D.  635 ;  54  L.  T.  481 ;  34  W.  B.  402— 
C.  A. 


Since  the  commencement  of  the  Conveyancing 
Act,  1881,  separate  mortgages  were  made  of 
distinct  estates  by  the  same  mortgagor.  The 
mortgagee  having  brought  a  foreclosure  action : 
— Held,  that  the  mortgagor  could  not  redeem 
either  estate  without  paying  all  the  costs  of  the 
action.  Clapham  v.  Andreios,  27  Ch.  D.  679 ; 
53  L.  J.,  Ch.  792  ;  51  L.  T.  86  ;  33  W.  B.  395- 
Pearson,  J. 

Disclaimer  by  one  Defendant — Kotioe  of 
Motion — Costs  of  Defendant's  Appearance.]— A 

first  mortgagee  brought  an  action  for  foreclosure 
against  the  mortgagor  and  a  number  of  subse- 
quent incumbrancers  of  whom  G.  was  one.  G. 
put  in  a  defence  disclaiming  all  interest  and 
consenting  to  be  dismissed  without  costs.  It 
was  admitted  that  G.  had  had  an  interest,  and 
was  properly  made  a  party  to  the  action.  The 
plaintiff,  instead  of  obtaining  the  common  order 
to  dismiss,  served  G.  with  notice  of  motion  for 
judgment  for  a  foreclosure  decree  against  him. 
G.  appeared  at  the  hearing  : — Held,  that  it  was 
unnecessary  for  him  to  appear,  and  he  was  not 
entitled  to  his  costs.  Lew  in,  v.  Jones,  53  L.  J., 
Ch.  1011  ;  51  L.  T.  59— North,  J. 

Of  Mortgagee — By  whom  Payable.] — Semble, 
in  a  foreclosure  action  the  costs  of  the  mort- 
gagee, as  between  solicitor  and  client,  are 
payable  by  the  mortgagor.  Griffith ,  Jones  $  Co. 
In  re,  53  L.  J.,  Ch.  303  ;  50  L.  T.  434  ;  82  W.  R 
350— C.  A. 

Order  for  Personal  Payment.] — In  the  order  for 
personal  payment  the  costs  will  be  limited  to 
such  costs  only  as  would  have  been  incurred  if 
the  action  had  been  brought  for  payment  only 
of  the  debt.  Farrer  v.  Lacy,  31  Ch.  D.  42  ;  55 
L.  J.,  Ch.  149  ;  53  L.  T.  515  ;  34  W.  B.  22— C.  A. 

Claim   for   Payment   withdrawn.]— A 

mortgagee  issued  a  writ  asking  for  the  usual 
order  for  foreclosure,  and  moved  for  the  appoint- 
ment of  a  receiver,  and  on  the  motion  being 
heard,  a  receiver  was  appointed.  A  statement 
of  claim  was  delivered,  but  the  mortgagor  having 
become  bankrupt,  the  plaintiff  withdrew  his 
claim  for  payment : — Held,  that  the  plaintiff 
should  have  proceeded  by  originating  summons. 
The  court  made  the  usual  foreclosure  order,  but 
directed  the  taxing-master  to  allow  such  costs 
as  the  plaintiff  would  have  been  entitled  to  if  be 
had  proceeded  by  originating  summons  and  no 
more.  Barr  v.  Harding,  58  L.  T.  74  ;  36  W.  B 
216— Kay,  J. 

Mortgagee  in  Possession — Aooounts.]— 

On  a  motion  for  judgment  in  default  of  defence 
in  a  foreclosure  action,  a  mortgagee  asked  for  an 
order  for  an  account  to  be  taken,  and  for  pay- 
ment, and  the  usual  foreclosure  judgment ;  the 
mortgagee,  however,  being  in  possession,  and 
having  therefore  to  account  on  the  footing  of 
wilful  default,  did  not  show  what  he  might 
have  received  but  for  his  wilful  default,  The 
court  therefore  gave  him  the  order  for  an 
account  to  be  taken,  and  the  usual  foreclosure 
judgment,  but  made  no  order  for  payment  The 
defendant  then  said  that  the  plaintiff  had 
abandoned  his  claim  for  payment,  and  therefore 
ought  to  have  proceeded  by  summons,  and  not 
by  action,  and  was  entitled  under  the  foreclosure 
order  to  no  more  costs  than  if  he  had  applied  by 


1277     MOETG AGE — Remedies  for  Non-payment  of  Mortgage-money.     1278 

summons : — Held,  that  as  the  plaintiff  had  not 
abandoned  his  claim  for  personal  payment,  bat 
had  pressed  it,  he  was  entitled  to  his  costs.  The 
court  refused  to  allow  the  case  to  go  into  the 
general  paper  for  argument  as  to  the  question 
of  costs.  Brooking  v.  Skewist  58  L.  T.  73  ; 
36  W.  R.  215— Kay,  J. 

Of  Mortgagee— What  allowed  —  Equitable 
Mortgage  by  Deposit] — In  an  action  to  fore- 
close a  mortgage  by  deposit  of  title-deeds, 
accompanied  by  a  memorandum  by  which  the 
mortgagor  agreed  to  execute  a  legal  mortgage  of 
his  estate  and  interest  at  the  request  of  the 
mortgagee,  the  taxing-master  disallowed  the 
following  charges  in  the  mortgagee's  bill  of 
costs:— (1)  Costs  of  an  action  in  the  Queen's 
Bench  Division  for  recovery  of  the  debt ;  (2) 
Costs  of  correspondence  with  a  surety  who  had 
given  a  promissory  note  for  part  of  the  debt ; 

(3)  Costs  of  investigating  the  mortgagor's  title  ; 

(4)  Costs  of  preparing  a  legal  mortgage  which 
tht  mortgagor  refused  to  execute ;  (5)  Costs  of 
correspondence  with  the  mortgagor  as  to  the 
legal  mortgage  : — Held,  that  heads  (1)  and  (2) 
most  be  allowed,  but  that  the  taxing-master  was 
right  in  disallowing  (3),  (4),  and  (5).  But  held, 
on  appeal,  that  a  mortgagee  is  entitled  to  be 
allowed  in  account  the  costs  of  all  proceedings 
reasonably  taken  by  him  to  enforce  his  rights 
under  the  mortgage  contract,  including  pro- 
ceedings to  obtain  the  mortgage  money  or  any 
part  thereof,  either  from  the  mortgagor,  or  from 
a  surety,  or  out  of  the  estate,  and  that  therefore 
heads  (2),  (4),  and  (5)  most  be  allowed.  That 
(1)  would  ordinarily  be  a  proper  charge,  but  in 
the  present  case  it  could  not  be  allowed,  as  it 
was  excluded  by  the  special  terms  of  the  order 
directing  taxation,  and  that  (3)  could  not  be 
allowed,  as  an  investigation  of  the  title  was  not 
necessary  for  the  purpose  of  preparing  the  legal 
mortgage,  but  that  the  mortgagees  must  be 
Allowed  all  expenses  properly  incurred  with 
reference  to  the  preparation  of  the  legal  mort- 
gage, which  would  include  the  expense  of  such 
inspection  of  the  title-deeds  as  was  necessary  for 
preparing  it.  Ellison  v.  Wright  (3  Russ.  458) 
preferred  to  Lewis  v.  John  (9  Sim.  366). 
National  Provincial  Bank  of  England  v.  Games, 
31  Ch.  D.  582  ;  55  L.  J.,  Ch.  576  ;  54  L.  T.  696  ; 
34  W.  R.  600— C.  A. 

Of  Accounts  asked  for  Unreasonably.]—^ 
Taylor  v.  Mostyn,  ante,  col.  1269. 


2.    IN  OTHER  CASKS. 

Action  for  Recovery  of  Land —Special  In- 
toriement— Landlord  and  Tenant— Attornment 
43mm.] — A  mortgage  deed  contained  an  attorn- 
ment clause  by  which  the  mortgagor  became 
tenant  at  will  to  the  mortgagee  of  the  land 
mortgaged,  at  a  rent  identical  with  the  interest 
aecnred  by  the  deed.  The  interest  being  in 
arrear,  the  mortgagee  gave  notice  to  quit,  and, 
failing  to  obtain  possession,  brought  an  action 
against  the  mortgagor  for  the  recovery  of  the 
land:— Held,  that  the  action  was  one  "for 
the  recovery  of  land  by  a  landlord  against  a 
tenant  whose  term  has  expired  "  within  Ord.  III. 
r-  6  (F),  entitling  the  plaintiff  to  endorse  the 
*rit  specially  with  a  statement  of  his  claim 


under  that  rule,  and  consequently  to  apply  for 
final  judgment  under  Ord.  XIV.  Daubuz  v. 
Lavington,  18  Q.  B.  D.  347  ;  53  L.  J.,  Q.  B.  283  ; 
51  L.  T.  206  ;  32  W.  R.  772— D. 

A  mortgage  deed  contained  a  clause  by  which, 
for  the  purpose  of  securing  the  punctual  pay- 
ment of  the  interest,  the  mortgagor  attorned 
tenant  to  the  mortgagee,  and  the  mortgagee 
had  a  power  of  re-entry  for  default  in  payment 
Default  having  been  made,  the  mortgagee 
commenced  an  action  for  the  recovery  of  the 
premises,  and  applied  for  judgment  under 
Ord.  XIV. : — Held,  that  the  mortgagor  was  a 
tenant  whose  term  had  expired  or  had  been 
duly  determined  by  notice  to  quit  within  the 
meaning  of  Ord.  III.  r.  6  (F.),  and  the  plaintiff 
was  entitled  to  judgment.  Daubuz  v.  Lavington, 
(13  Q.  B.  D.  347)  approved  and  followed.  Hall 
v.  Comfort,  18  Q.  B.  D.  11  ;  56  L.  J.,  Q.  B.  185; 
55  L.  T.  550  ;  35  W.  R.  48— D. 

Concurrent  Actions  in  Chancery  and  Common 
Law  Divisions— Motion  for  Final  Judgment — 
Costs.] — A  mortgagee  by  deed,  of  lands,  after 
commencing  an  action  in  the  Chancery  division 
for  an  account  of  what  was  due  on  the  mort- 
gage, and  for  sale  of  the  mortgaged  premises, 
brought  a  personal  action  in  a  Common  Law 
division  on  the  covenant  in  the  mortgage  deed 
for  payment  of  the  principal  debt  and  interest, 
and  moved  for  final  judgment.  The  defendant 
had  not  moved  to  stay  the  second  action  : — Held, 
that  the  plaintiffs  were  entitled  to  judgment, 
but  without  costs  of  the  action  or  motion. 
Bourke  v.  Bonoghue,  20  L.  R.,  Ir.  324 — Ex.  D. 

Action  on  Covenants  Assignment  of  Equity  of 
Redemption — Right  of  Mortgagor  to  Reconvey- 
ance.]— A.  mortgaged  a  house  to  B.  for  12,0002., 
and  covenanted  to  pay  the  principal  and  in- 
terest. He  afterwards  sold  his  equity  of  redemp- 
tion to  C,  who  covenanted  to  pay  the  12,0007. 
and  to  indemnify  A.  in  respect  thereof.  C.  then 
made  a  further  charge  on  the  mortgaged  pro- 
perty for  8,0002.  in  favour  of  B.,  and  covenanted 
that  the  property  should  not  be  redeemable  ex- 
cept on  payment  of  both  the  12,0002.  and  the 
8,0002.  C.  having  become  insolvent,  B.  brought  an 
action  against  A.  on  his  covenant  for  the  12,0002.: 
— Held,  that  B.  was  only  entitled  to  recover  upon 
the  terms  of  reconveying  the  mortgaged  property 
to  A.  Kinnaird  v.  Trollope,  39  Ch.  D.  636  ;  67 
L.  J.,  Ch.  905  ;  59  L.  T.  433 ;  37  W.  R.  234— 
Stirling,  J. 

To  Fay  Principal  and  Interest— Judg- 
ment—Merger.] — A  mortgage  deed  contained  a 
covenant  by  the  mortgagor  for  payment  of  the 
principal  sum  on  the  expiration  of  six  months 
next  after  a  specified  day,  together  with  interest 
thereon  at  5  per  cent,  per  annum  for  the  six 
months.  And  there  was  a  further  covenant  by 
the  mortgagor  that,  if  the  principal  sum,  or  any 
part  thereof,  should  remain  unpaid  after  the 
expiration  of  the  six  months,  the  mortgagor 
would,  so  long  as  the  same  sum  or  any  part 
thereof  should  remain  unpaid,  pay  to  the  mort- 
gagee interest  for  the  principal  sum,  or  for  so 
much  thereof  as  should  for  the  time  being  remain 
unpaid,  at  5  per  cent,  per  annum.  After  the  ex- 
piration of  the  six  months,  the  mortgagee 
recovered  judgment  against  the  mortgagor  on  the 
covenant  for  the  principal  sum  and  interest  in 
arrear :-— Held,  that  the  covenant  being  merged 


1279 


MORTGAGE— Redemption. 


1280 


in  the  judgment,  the  mortgagee  was,  as  from  the 
date  of  the  judgment,  entitled  only  to  interest 
on  the  judgment  debt  at  the  rate  of  4  per  cent., 
and  was  not  entitled  under  the  covenant  to 
interest  at  the  rate  of  5  per  cent,  on  the  princi- 
pal sum.  Popple  v.  Sylvester  (22  Ch.  D.  98) 
distinguished.  JFewings,  Ex  parte,  Sneyd,  In  re, 
25  Ch.  D.  388  ;  58  L.  J.,  Ch.  545  ;  50  L.  T.  109  ; 
35  W.  R.  352— C.  A. 

Claim  against  Residuary  Legatees — Delay  in 
following  Assets — Acquiescence.] — The  right  of 
mortgagees  of  real  estate  whose  security  proves 
insufficient,  to  come  against  the  residuary 
legatees  of  the  mortgagor,  amongst  whom  his 
personal  estate  has  been  distributed,  is  a  purely 
equitable  right,  and  the  court  will  not  enforce  it 
if  there  are  circumstances  which  would  make  it 
inequitable  to  do  so.  Blake  v.  Gale,  32  Ch.  D. 
671 ;  55  L.  J.,  Ch.  669  ;  56  L.  T.  234  ;  34  W.  R. 
565— C.  A. 

Solicitor-mortgagee— Profit  Costs.  1  —  Where 
one  of  a  body  of  mortgagees  is  a  solicitor  and 
acts  as  such  in  enforcing  the  mortgage  security, 
he  is  entitled  to  charge  profit  costs  against  the 
mortgagor,  whether  the  mortgagees  are  trustees 
or  not.  If  in  such  a  case  the  mortgagor,  in 
applying  for  an  order  to  tax  the  bill  of  the  soli- 
citor-mortgagee, desires  to  raise  the  objection  to 
profit  costs,  he  should  state  his  objection  in  his 

Sitition  for  taxation.    Donaldson,  In  re,  27  Ch. 
.  544;   54  L.  J.,   Ch.   151;   51   L.  T.  622— 
V.-C.  B. 

Action  of  Debt  for  Costs  and  Expenses.] — 
Costs  and  expenses  properly  incurred  by  a 
mortgagee  in  relation  to  the  mortgaged  property, 
and  which  the  mortgagor  will  be  compelled  to 
pay  as  a  condition  of  being  allowed  to  redeem  the 
property,  do  not  constitute  a  debt  in  respect  of 
which  an  action  can  be  maintained  by  the  mort- 
gagee against  the  mortgagor.  Ibwings,  Ex 
parte,  Sneyd,  In  re,  25  Ch.  D.  338  ;  53  L.  J.,  Ch. 
546  ;  60  L.  T.  109  ;  32  W.  R.  362— C.  A. 


VIII.    REDEMPTION. 

Bight  to  Redeem— Tenant   for  Tears.]  —  A 

tenant  for  years  under  an  agreement  for  lease 
made  subsequently  to  a  mortgage  on  the  demised 
property,  and  by  which  the  mortgagee  is  not 
bound,  is  entitled  to  redeem  the  mortgage.  The 
principle  is  the  Bame  whether  the  tenancy  is 
beneficial  or  otherwise.  Tarn  v.  Turner,  39  Ch.  D. 
456  ;  57  L.  J.,  Ch.  1086  ;  59  L.  T.  742  ;  37  W.  R. 
276— C.  A. 

Mortgage  of  Realty  and  Personalty — 

Redemption  by  Executor.] — Real  and  personal 
estate  were  mortgaged  together.  The  mortgagor 
died  leaving  a  will  of  personalty,  but  intestate 
as  to  real  estate.  It  was  not  known  who  was 
the  heir-at-law,  and  the  mortgagee  entered  into 
possession.  The  executrix  of  the  mortgagor 
claimed  to  redeem  the  whole  of  the  mortgaged 
property,  which  claim  was  resisted  by  the  mort- 
gagee, who  insisted  that  her  only  right  was  to 
redeem  the  mortgaged  personalty  on  payment  of 
a  proportionate  part  of  the  mortgage  debt.  The 
executrix  brought  an  action  for  redemption, 
and  the  court  made  a  decree  for  the    usual 


accounts  as  against  a  mortgagee  in  possession, 
directing  that  on  payment  of  what  was  found 
due  the  mortgagee  should  convey  and  assign  the 
mortgaged  properties,  real  and  personal,  to  the 
plaintiff,  subject  to  such  equity  of  redemption 
as  might  be  subsisting  therein  in  any  other 
person  or  persons.  The  defendant  appealed:— 
Held,  that  this  decree  was  right,  for  that  the 
owner  of  the  equity  of  redemption  of  one  of  two 
estates  comprised  in  the  same  mortgage  cannot 
insist  on  redeeming  that  estate  separately,  and 
cannot  be  compelled  to  redeem  it  separately,  his 
right  being  to  redeem  the  whole,  subject  to  the 
equities  of  the  other  persons  interested;  that 
although  the  heir-at-law,  if  known,  ought  to 
have  been  a  party,  the  court  would  not  deltj 
making  a  decree  until  he  was  ascertained  and 
made  a  party,  and,  that  although  a  mortgagee  in 
possession  who  voluntarily  transfers  his  security 
is  liable  to  account  for  the  subsequent  rents,  he 
is  subject  to  no  such  continuing  liability  when 
he  transfers  by  the  direction  of  the  court  in  s 
redemption  suit.  Hall  v.  Heward,  32  Ch.  D. 
430  ;  55  L.  J.,  Ch.  604  ;  54  L.  T.  810 ;  34  W.  B. 
571— C.  A. 

Bankruptcy  of  Mortgagor— Purchase  by 

Trustee  — Right  of  Second  Mortgages.  I  —  A 
trustee  in  bankruptcy  does  not  by  purchasing 
from  the  first  mortgagee  of  the  bankrupt  extin- 
guish the  first  mortgage  and  make  the  second 
mortgagee  the  first  incumbrancer  on  the  estate. 
But  such  a  purchase  does  not  extinguish  the 
right  of  the  second  mortgagee  to  redeem.  Bell 
v.  Sunderland  Building  Socuty,  24  Ch.  D.  618 ; 
63  L.  J.,  Ch.  509  ;  49  L.  T.  655— V.-C.  B. 

Right  of  Mortgagor  to  call  for  Assignment 
to  a  Third  Person.] — A  tenant  for  life  of  mort- 
gaged premises  who  has  failed  to  keep  down  the 
interest,  and  who  has  obtained  the  usual  order 
permitting  him  to  redeem  the  mortgage,  is  not  of 
right  entitled  under  s.  15  of  the  Conveyancing 
and  Law  of  Property  Act,  1881,  to  require  the 
mortgagee  to  transfer  the  mortgage  debt  and 
premises  to  a  third  person.  Alderson  v.  Elqnf, 
26  Ch.  D.  567 ;  60  L.  T.  506  ;  32  W.  R.  613- 
Chitty,  J. 

Acoounts — Order  for  Preliminary  AoeoutL] 
— The  plaintiff,  after  issuing  the  writ  in  a  re- 
demption action,  took  out  a  Bummons  for  an 
account  under  Ord.  XV.  r.  1  .-—Held,  that  the 
order  under  the  summons  must  be  limited  to 
preliminary  accounts,  and  that  the  usual  terms 
of  a  final  judgment  for  redemption  ought  not  to 
be  added  without  the  plaintiff's  consent  Clow 
v.  Wilts  and  Western  Benefit  Building  Society, 
63  L.  J.,  Ch.  622  ;  50  L.  T.  382  ;  32  W.  R.  89&- 
V.-C.  B. 

Mortgagee  in  Possession  overpaid— Annual 
Rests — Costs.] — In  a  redemption  action  against 
mortgagees  in  possession  the  plaintiffs,  who 
claimed  to  represent  the  original  mortgagor, 
alleged  that  the  defendants  had  been  overpaid. 
The  defendants  delivered  a  defence  in  which 
they  denied  the  title  of  the  plaintiffs  to  redeem ; 
pleaded  the  Statute  of  Limitations;  and  as- 
serted that  a  large  amount  was  still  doe  to 
them.  At  the  trial  the  plaintiffs'  tide  to  re- 
deem was  not  disputed,  and  the  defence  oi  the 
statute  was  overruled.  The  judgment  directed 
the  taking  of  the  ordinary  accounts  in  a  re- 


1281 


MORTGAGE— Payment  Off. 


1282 


demption  action  against  mortgagees  in  posses- 
sion, including  an  account  of  what  was  due  to 
the  defendants  for  principal  and  interest,  and 
their  taxed  costs  of  the  action ;  and  that,  on 
payment  by  the  plaintiffs  within  six  months 
after  the  certificate  of  the  balance  (if  any) 
which  should  be  found  due  to  the  defendants, 
the  defendants  should  re-convey  the  mortgaged 
property  to  the  plaintiffs,  and  that,  in  default  of 
payment,  the  action  should  be  dismissed  with 
cost*.  But,  in  case  it  should  appear  on  taking 
the  accounts  that  the  defendants  had  been  over- 
paid, the  farther  consideration  of  the  action 
▼as  to  be  adjourned.  The  chief  clerk  found  by 
his  certificate  that  the  mortgagees  went  into 
possession  in  May,  1857  ;  that  the  mortgage 
debt  was  fully  repaid  in  November,  1866  ;  and 
that  at  the  date  of  the  certificate  there  was  a 
balance  of  618/.  due  from  the  defendants : — 
Held,  that  the  account  must  be  taken  against 
the  defendants  with  annual  rests  from  the  date 
at  which  the  mortgage  debt  was  fully  paid,  and 
that  the  defendants  must  pay  the  costs  of  the 
action.  Wilson  v.  Metcatfe  (1  Buss.  530)  fol- 
lowed as  to  the  annual  rests,  but  distinguished 
as  to  the  costs.  Ashworth  v.  Lord,  36  Ch.  D. 
«5;  67  L.  J.f  Ch.  230  ;  58  L.  T.  18  ;  36  W.  B. 
446-North,  J. 

Mortgagees  in  Possession— Aocount  of  Bents 
ui  Profits- Beeeipts  by  Agent — Liberty  to 
tataarge.]— The  defendants  had  by  the  judg- 
ment in  an  action  been  held  to  be  mortgagees 
in  possession  of  certain  mortgaged  estates,  and 
the  usual  accounts  and  inquiries  as  against 
mortgagees  in  possession  were  directed.  The 
defendants  brought  in  an  account  purporting  to 
show  their  receipts  in  respect  of  the  rents  and 
profits  of  the  mortgaged  estates,  but  which  in 
act  only  showed  certain  lump  sums  received  by 
them  from  one  J.  H.  Blood,  then  deceased,  their 
agent  On  motion  by  the  plaintiff  for  a  further 
and  better  account : — Held,  that  the  defendants 
were  bound  to  render  the  further  account,  for 
that  the  receipts  of  Blood  were  as  between  the 
plaintiff  and  the  defendants  the  receipts  of  the 
defendants ;  the  defendants  were  bound  to  de- 
liver an  account  showing  not  only  what  they 
had  received  from  Blood,  but  what  he  had  re- 
ceived from  the  tenants,  and  that  it  was  a  ques- 
tion not  of  technicality  but  of  substance,  for 
without  the  knowledge  derived  from  such  an 
account  the  plaintiff  would  be  unable  to  proceed 
on  the  inquiry  as  to  wilful  default,  which  was  a 
natter  of  surcharge,  and  that  the  death  of  the 
defendants'  agent  could  not  excuse  the  defen- 
dants from  this  liability.  Noye*  v.  Pollock, 
30  Ch.  D.  336 ;  65  L.  J.,  Ch.  54  ;  53  L.  T. 
430;33W.B.787— C.A. 


Eolation— Bato  of  Interest]— The 
plaintiff  had  mortgaged  her  life  interest  in  cer- 
tain leasehold  property  to  various  persons.  In 
the  year  1880,  the  defendant,  who  was  then 
acting  as  her  solicitor,  in  order  to  release  her 
from  embarrassment,  bought  up  several  of  the 
incumbrances  with  his  own  money,  and  took  a 
transfer  of  them  to  himself : — Held,  in  an  action 
for  redemption  brought  by  the  plaintiff  against 
the  defendant,  that  the  defendant  must  be  al- 
lowed interest  at  the  rate  of  five  per  cent,  on  the 
moneys  he  had  actually  advanced.  Macleod  v. 
£»«,  63  L.  J.,  Ch.  534  ;  50  L.  T.  358 ;  32 
W.  R.  660— Pearson,  J. 


Two  Properties — Power  of  Consolidation.] — 
A  brewery  company  were  first  mortgagees  for 
1,000/.,  and  the  plaintiff  was  third  mortgagee 
of  a  public-house,  A.  The  company  afterwards 
took  a  mortgage  of  a  public-house,  B. ;  A.  and 
B.  both  belonging  to  the  same  mortgagor.  The 
lease  of  A.  was  nearly  out,  and  by  arrange- 
ment between  all  parties  the  company  advanced 
1,000?.  for  a  new  lease  which  was  granted  to  the 
mortgagor,  and  was  then  mortgaged  by  him, 
first  to  the  brewery  company  to  secure  2,000/. 
and  advances,  and  subject  thereto  to  the  plain- 
tiff. By  a  memorandum  given  at  the  same  time 
the  plaintiff  declared  that  the  company  was  to 
have  priority  for  their  2,000/.  and  advances,  not 
to  exceed  in  the  whole  2,300/.  The  brewery 
company  afterwards  transferred  both  mortgages 
to  the  defendant.  The  plaintiff  claimed  to  re- 
deem A.,  to  which  the  defendant  objected  unless 
the  plaintiff  also  redeemed  B. : — Held,  that 
though  the  new  mortgage  of  A.  to  the  plaintiff 
was  in  date  subsequent  to  the  mortgage  of  B., 
the  intention  of  the  parties  was  merely  to  give 
priority  to  the  company  for  their  2,300/.,  and  not 
to  give  the  company  a  right  to  consolidate  the 
mortgage  on  A.  and  the  mortgage  on  B. ;  and  as 
the  whole  was  equitable,  the  company  could 
not  be  held  to  have  obtained  any  such  right ; 
nor  could  their  assignee  be  in  any  better  posi- 
tion. Bird  v.  Wenn,  33  Ch.  D.  215 ;  56  L.  J., 
Ch.  722;  54  L.  T.  933;  34  W.  B.  662— Stir- 
ling, J. 

Action  for  Bedemption  and  Foreclosure  — 
Form  of  Judgment]— See  Hallett  v.  Furze,  ante, 
col.  1270. 


IX    PAYMZHT  OFF. 

Interest  in  Lieu  of  Notice — Payment  out  of 
Fund  in  Court — Delay  in  Completion  of  Order.] 
— One  of  the  beneficiaries  under  a  will  mort- 
gaged her  interest  in  the  testator's  estate.  She 
gave  the  mortgagees  six  months'  notice  to  pay 
off  the  mortgage  on  the  1st  of  July,  1885,  and  on 
the  20th  of  May,  1885,  an  order  was  made 
in  an  action  to  administer  the  estate,  on  the 
application  of  the  beneficiaries  and  in  the 
presence  of  the  mortgagees,  which  directed 
(inter  alia)  payment  to  the  mortgagees,  out  of 
funds  in  court  standing  to  the  credit  of  the 
mortgagor,  of  the  mortgage  debt,  with  interest 
up  to  the  1st  of  July,  1885.  Owing  to  delay  in 
the  completion  of  the  order  the  payment  could 
not  be  made  on  the  1st  of  July,  and  on  the  2nd 
of  July  the  mortgagees  took  out  a  summons, 
claiming  six  months'  additional  interest  in  lieu 
of  a  fresh  six  months'  notice  to  pay  off  the 
mortgage.  On  the  20th  of  July  the  order  was 
completed,  and  on  the  21st  of  July  the  mort- 
gagees took  the  sum  mentioned  in  the  order  out 
of  court : — Held,  that  the  mortgagees  were  only 
entitled  to  additional  interest  from  the  1st  to 
the  21  st  of  July,  on  the  ground  that,  by  accept- 
ing the  order,  they  assented  to  payment  out  of 
the  fund  in  court  subject  to  all  the  contingencies 
to  which  the  completion  of  the  order  might  be 
subject.  Moss,  In,  re,  Levy  v.  Scwill,  31  Ch.  D. 
90  ;  55  L.  J.,  Ch.  87  ;  54  L.  T.  49  ;  34  W.  B.  69 
— Pearson,  J. 

Bights  of  one  Mortgagor  against  Mortgagee* 
|  on  Payment  of  Money  to  other  Mortgagor.] — 

T  T 


1288 


MORTGAGE— Payment  Off. 


1284 


A  married  woman  having  a  charge  on  settled 
estates  for  her  jointure,  joined  with  her  husband 
in  mortgaging  them  and  another  estate  of  which 
he  was  absolute  owner.  Afterwards  the  hus- 
band sold  the  unsettled  estate,  the  mortgagees 
joining,  and  the  purchase-money  was  paid  partly 
in  reduction  of  the  mortgage  debt  and  partly  to 
the  husband.  The  wife  did  not  join  in  the  con- 
veyance, but  consented  to  the  transaction : — 
Held,  that  whatever  equity  the  wife  might  have 
against  her  husband  or  the  estate  which  had 
been  sold,  she  had  no  equity  to  charge  the  mort- 
gagees with  the  sum  paid  to  her  husband.  Noye$ 
v.  Pollonk,  32  Ch.  D.  53  ;  55  L.  J.,  Ch.  513  ; 
54  L.  T.  473  ;  34  W.  R.  383— C.  A. 

Authority   of    Agent   to   receive   Mortgage 
Money.] — G.  and  H.  were  mortgagees  for  l.OOOZ. 
on  property  of  S.    Their  solicitors,  D.  k  P.,  who 
had  the  deeds  in  their  custody,  applied  to  the 
defendant,  who  was  also  a  client  of  theirs,  saying 
that  they  believed  he  had  1,000/.  to  invest  on 
mortgage,  and  that  G.  and  H.  wanted  1,000/.  on 
a  transfer  of  S.'s  mortgage.    The  defendant  in- 
spected the  property,  and  being  satisfied,  he,  on 
the  19th  of  June,  1878,  sent  the  1,000*.  to  D.  &  P., 
who  gave  him  a  receipt  for  it    In  July  D.  &  P. 
fraudulently  induced  G.  and  H.  to  execute  a 
deed  of  transfer  to  the  defendant  with  a  receipt 
indorsed,  which  deed  they  stated  to  G.  and  H. 
to  be  a  deed  of  reconveyance  to  S.  on  his  paying 
off  the  mortgage.    1).  &   P.  shortly  afterwards 
handed  this   deed  with  the  title-deeds  to  the 
defendant,  and  went  on  paying  him  interest  as 
if  they  had  received  it  from  S.,  who  was  in  fact 
paying  his  interest  to  the  agents  of  G.  and  H. ; 
G.  and  H.  made  no  inquiry  as  to  the  mortgage, 
and  this  went  on  till  1883,  when  D.  &  P.  became 
bankrupts,  and  the  1,000/.  received  from  the 
defendant,  which  had  never  been  handed  over 
to  G.  and  H.,  was  lost.    G.  and  H.  then  brought 
their  action  against  the  defendant  asserting  a 
right  against  the  property  in  the  nature  of  an 
unpaid  vendor's  lien  : — Held,  that  as  the  plain- 
tiffs by  the  deed  of  transfer  and  receipt  which 
they  handed  to  D.  &  P.  enabled  them  to  repre- 
sent to  the  defendant  that  the  1,000Z.  which  he 
had  previously  handed  to  D.  &  P.  had  come  to  the 
hands  of  the  plaintiffs,  they  had  raised  a  counter 
equity  which  prevented  their  claiming  a  vendor's 
lien,  though  this  would  not  have  been  the  case 
if  (D.  &  P.  having  no  authority  to  receive  money 
for  the  plaintiffs)  the  defendant  had  paid  the 
1,000/.  to  D.  &  P.  at  the  time  when  the  deeds 
were  delivered  to  him,  since  he  would  then  have 
known  that  the  plaintiffs  had  not  received  the 
money.    Stoinbanks,  Ex  parte  (11  Ch.  D.  525), 
distinguished.     Oordon  v.  James,  30  Ch.  D.  249  ; 
53  L.  T.  641  ;  34  W.  R.  217— C.  A. 

Quaere,  per  Cotton,  L.  J.,  whether  D.  &  P.,  as- 
suming them  to  have  authority  to  receive  mort- 
gage money  on  behalf  of  the  plaintiffs,  could  be 
taken  ever  to  have,  in  fact,  received  this  1,0007. 
on  their  behalf.    lb. 


Transfer  by  Three  Persons  to  secure  Loan — 
Authority  to  Bell — Transfer  to  Nominees  of 
Customer.] — G.,  a  stockbroker,  who  was  one  of 
three  trustees  and  acted  as  broker  to  the  trust, 
proposed  to  his  co-trustees  to  sell  B.  stock 
belonging  to  the  trust  and  re-invest  in  N.  E. 
stock.  The  three  trustees  then,  on  the  27th  of 
January,  1882,  executed  a  transfer  of  the  B. 
stock  for  a  nominal  consideration  to  two  persons 


who  were  officers  of  a  bank  of  which  G.  was 
a  customer.    G.  gave  the  transfer  to  the  bank 
as  security  for  a  loan  by  them  to  him,  and 
the  transfer  was  registered.    G.,  in  February, 
1882,  paid  off  the  loan,  and  on  the  15th  of 
February  the  bank  transferred  the  stock  to  pur- 
chasers from  G.,  and,  without  giving  any  notice 
to  G.'s  co-trustees,  allowed  him  to  receive  the 
purchase-money.    He  invested  it  in  N.  E.  stock 
in  his  own  name.    In  1883  he  sold  the  K.  K. 
stock  and  misappropriated  the  proceeds.  Shortly 
after  the  sale  or  the  B.  stock  G.  had  given  an 
account  to  his  co-trustees  showing  the  sale  of  B. 
stock  and  a  re-investment  in  N.  E.  stock,  and  in 
1884  he  rendered  another  account  in  which  he 
represented  the  N.  E.  stock  as  still  forming  part 
of  the  trust  funds.    In  1885  he  absconded.    The 
co-trustees  remembered  hardly  anything  about 
the  transaction,  but  admitted  the  genuineness  of 
their  signatures  to  the  deed  of  transfer  :— Held, 
that  the  bank  had  occasioned  the  loss  to  the 
trust  estate  by  allowing  the  purchase-money  to 
come  to  the  hands  of  G.,  who  had  no  authority 
to  receive  it,  and  whom  they  had  no  sufficient 
reason  for  believing  to  have  authority  to  receive 
it  and  that  the  bank  must  therefore  make  it 
good  at  the  suit  of  the  co-trustees,  although  the 
co-trustees  had  been  negligent  in  not  seeing  that 
the  N.  E.  stock  was  registered  in  the  joint  names 
of  the  trustees.    Magnus  v.  Queensland  National 
Bank,  37  Ch.  D.  466  ;  57  L.  J.,  Ch.  413  ;  58  L.T. 
248  ;   36  W.  R.  677— C.  A. '  Affirming  52  J.  P. 
246— Kay,  J. 

Set-off— Bight  to  retain  Surplus  Moneys  to 
discharge  Unsecured  Debt.] — G.  died  insolvent, 
having  mortgaged  an  estate  for  his  own  life  to 
secure  an  annuity  granted  by  himself,  payable 
during  his  own  life.  He  had  also  mortgaged  & 
policy  on  his  own  life  to  the  same  mortgagees. 
After  the  death  of  G.  the  mortgagees  received  in 
respect  of  the  policy  a  sum  more  than  sufficient 
to  satisfy  the  amount  secured  on  the  policy  :— 
Held,  that  they  had  no  right  to  set  off  the  balance 
against  the  executor  in  respect  of  arrears  of  the 
annuity.  Oregson,  In  re,  ChrUtison  v.  £ole«* 
36  Ch.  D.  223  ;  57  L.  J.,  Ch.  221 ;  57  L.  T.  250; 
35  W.  B.  803— North,  J. 

Mortgage  by  Harried  Woman— Restraint  on 
Anticipation— Marshalling.]— C,  a  widow,  was 
entitled  to  the  income  of  one-third  of  a  fund  in 
court  for  her  life  for  her  separate  use  without 
power  of  anticipation,  and  was  also  entitled  to 
the  income  of  the  remaining  two-thirds  of  the 
fund  for  her  life,  but  subject  to  certain  deduc- 
tions. She  mortgaged  all  her  interest  in  the 
fund,  and  some  policies  of  assurance  on  her  life 
to  F.,  and  an  order  was  made  for  payment  of  the 
income  of  the  mortgaged  property  to  him.  C. 
then  married  M. ;  and  after  her  marriage  she 
charged  all  her  interest  in  the  fund  in  favour  of 
P.  After  this  T.  obtained  a  judgment  against 
her,  and  the  appointment  of  a  receiver  of  her 
separate  estate.  The  income  received  by  F.  was 
more  than  sufficient  for  payment  of  the  interest 
on  his  mortgage  and  the  premiums  on  the 
policies,  and  he  did  not  desire  to  reduce  his 
principal  .-—Held,  that  as  between  F.  and  the 
subsequent  incumbrancers  of  the  fund,  there 
ought  to  be  a  marshalling  of  securities,  and  that 
F.  ought  to  pay  the  interest  on  his  mortgage 
and  the  premiums  on  the  policies  out  of  the 
income  of  the  one-third  with  respect  to  which 


1285 


NATIONAL    DEBT— NE  EXEAT  REGNO. 


1286 


the  restraint  on  anticipation  existed,  so  as  to 
leave  the  income  of  the  remaining  two-thirds  to 
satisfy  the  subsequent  incumbrances.  Loder'f 
Tnuti,  In  re,  56  L.  J.,  Ch.  230  ;  55  L.  T.  582  ;  35 
W.  R.  58— North,  J. 


MORTMAIN. 

See  CHARITY. 


MOTION. 

See  PRACTICE. 


MUNICIPAL  CORPORA- 
TION. 

See  CORPORATION. 


MURDER. 

See  CRIMINAL  LAW. 


MUSIC. 

See  COPYRIGHT. 


NAME. 

Trade  ¥ame.]— &«  Trade. 
flame  in  Willi.]— See  Will. 


NATIONAL  DEBT. 

Petition  for  Re-transfer  of  Stock— Res  Judi- 
cata—Fresh  Evidence.]— The  jurisdiction  given 
to  the  court  by  s.  55  or  the  National  Debt  Act, 
1870,  to  decide  upon  petition  as  to  the  validity 
of  a  claim  for  the  re-transfer  of  stock,  which  has 
been  transferred  to  the  National  Debt  Commis- 
sioners under  the  provisions  of  b.  51,  is  to  be 
exercised  in  the  mode  in  which  the  ordinary  juris- 
diction of  the  court  is  exercised.    Therefore,  if  a 
petition  for  the  re-transfer  of  stock  is  heard  on 
the  merits,  and  is  dismissed  on  the  ground  that 
the  petitioner  has  failed  to  make  out  his  title, 
he  cannot  on  the  subsequent  discovery  of  fresh 
evidence  in  support  of  his  title  present  a  fresh 
petition  for  the  same  object,  at  any  rate  without 
the  leave  of  the  court  previously  obtained.  House, 
Ex  parte,  May,  In  re,  28  Ch.  D.  516  ;  54  L.  J., 
Ch.  338  ;  52  L.  T.  78  ;  33  W.  R.  917— C.  A 


NATURALIZATION. 

See  INTERNATIONAL  LAW. 


NAVIGATION. 

Of  Ships.]— See  Shipping  (Collision). 
On  Inland  Waters.]— See  Wateb,  III. 


NAVY. 


Sec  ARMY  AND  NAVY. 


NECESSARIES. 

In  Shipping  Gases.]— See  Shipping. 
For  Infants.]— See  Infant. 


NE  EXEAT  REGNO. 

Debt  payable  in  Fntnro — Default  by  Trustee — 
Debtors  Act,  18S9.]— An  order  was  made  that  a 
trustee  should  within  seven  days  after  service 
of  the  order  pay  to  his  cestui  que  trust,  the  plain- 
tiff, a  sum  found  due  to  him  by  the  chief  clerk's 
certificate.  The  plaintiff  could  not  find  the 
trustee  so  as  to  serve  the  order,  and  applied  for 
a  writ  of  ne  exeat  on  the  ground  that  the  trustee 

T  T  2 


1287 


NEGLIGENCE— General  Principles. 


1288 


was  about  to  go  out  of  the  jurisdiction  : — Held, 
that  the  case  did  not  fall  within  the  third  excep- 
tion in  s.  4  of  the  Debtors  Act,  1869,  the  trustee 
not  being  in  default,  as  the  order  only  directed 
payment  after  service  and  had  not  been  served, 
and  that  as  the  debt  was  not  now  due  and  pay- 
able a  writ  of  ne  exeat  could  not  be  granted. 
Colverson  v.  Bloomfield,  29  Gh.  D.  341 ;  54  L.  J., 
Ch.  817  ;  52  L.  T.  478  ;  33  W.  R.  889— C.  A. 


NEGLIGENCE. 

I.  General  Principles. 

1.  Identification  with  Wrongdoer,  1287. 

2.  Contributory  Negligence,  1288. 

II.  In  Particular  Cases. 

1.  Navigation  of  Steamships,  1291. 

2.  Railway  Companies,  1292. 

3.  Innkeepers,  1293. 

4.  Dangerous  Premises  or  Chattels,  1294. 

5.  Liability  for  Acts  of  Stranger,  1295. 

6.  Liability  of  Master  for  Acts  of  Ser- 

vant, 1296. 

7.  Licensees,  1298. 

8.  Contractor  and  Employer,  1298. 

9.  Public  Bodies,  1299. 
10.  In  otlur  Cases,  1300. 

IIL  Actions  fob  Injuries. 

1.  Lord  Campbell's  Act,  1301. 

2.  In  otter  Cases,  1303. 


I.  GENERAL    PRINCIPLES. 
1.  Identification  with  Wrongdoer. 

Joint  Wrongful  Act— Claim  by  Person  not 
responsible  for  Negligence.]— Where  a  person 
receives  injuries  in  consequence  of  the  joint  act 
of  two  wrongdoers,  it  is  no  defence  for  one  of 
the  wrongdoers  to  say  that  the  injuries  were  not 
received  solely  through  his  wrongful  act. 
Mathews  v.  London  Street  Tramways  Company, 
58  L.  J.,  Q.  B.  12  ;  60  L.  T.  47  ;  52  J.  P.  774 
— D. 

M.  was  a  passenger  on  an  omnibus  which  col- 
lided with  a  tramcar  of  the  defendants  : — Held, 
that  if  there  was  negligence  on  the  part  of  the 
tramcar  driver  which  caused  the  accident,  it  is 
no  answer  to  say  that  there  was  negligence  on 
the  part  of  the  omnibus  driver.    lb. 

A  passenger  on  board  the  •'  Bushire  "  and  one 
of  the  crew  lost  their  lives  by  drowning  in  con- 
sequence of  a  collision  with  the  "Bernina." 
Both  vessels  were  to  blame,  but  neither  of  the 
deceased  had  anything  to  do  with  the  negligent 
navigation  of  the  "  Bushire  "  :— Held,  that  their 
representatives  could  maintain  actions  under 
Lord  Campbell's  Act,  against  the  owners  of  the 
11  Bernina/'  and  conld  recover  the  whole  of  the 
damages  :  s.  25,  sub-s.  9,  of  the  Judicature  Act, 
1873,  not  being  applicable  to  such  actions. 
Thorogood  v.  Bryan  (8  C.  B.  115),  and  Arm- 
strong v.  Lancashire  and  Yorkshire  Railway 
(10  L.  R.,  Ex.  47),  overruled.  Mills  v.  Arm- 
strong, The  Bernina,  13  App.  Cas.  1 ;  57  L.  J., 
P.  65;  58 L.  T.  423;  36  W.R.  870;  52  J.P.212: 
IB  Asp.  M.  C.  257— H.  L.  (E.). 


In  an  action  under  Lord  Campbell's  Act  for 
loss  of  life  occasioned  by  a  collision :— Held, 
first,  that  s.  512  of  the  Merchant  Shipping  Act, 
1854,  does  not  apply  to  cases  of  loss  of  life 
caused  by  a  foreign  ship.  Secondly,  that  the 
breach  of  the  rules  for  preventing  collisions,  to 
which  the  deceased  was  privy,  and  for  which 
the  court  would  be  bound  to  hold  the  ship  to 
blame  under  the  17th  section  of  the  Merchant 
Shipping  Act,  1873,  constitutes  legal  contribu- 
tory negligence  on  the  part  of  the  deceased, 
even  where  there  is  no  reason  to  believe  that 
such  breach  of  the  regulation  actually  contri- 
buted to  the  accident.  Thirdly,  that  contri- 
butory negligence  on  the  part  of  the  deceased 
did  not  debar  the  plaintiff  from  recovering  any 
damages ;  but  that,  according  to  the  rule  obtain- 
ing in  cases  of  collision,  the  plaintiff  was  entitled 
to  recover  a  moiety  of  the  damage  she  had  sus- 
tained. The  Vera  Cruz,  9  P.  D.  88  ;  53  L.  J.,  P. 
33  ;  51  L.  T.  104  ;  32  W.  R.  783  ;  5  Asp.  M.  C. 
254— Butt,  J.    See  S.  C.  in  H.  L.,  post,  col.  1301. 


2.  CONTBIBTJTOBT  NEGLIGENCE. 

When  Case  should  be  left  to  Jury.]— To 
justify  leaving  a  case  to  the  jury,  notwithstand- 
ing the  voluntary  act  of  the  injured  person 
contributing  to  the  injury  complained  of,  the 
circumstances  must  be  such  as  either— 1,  to 
make  the  question,  whether  that  act  was  neg- 
ligent (either  per  se  or  having  regard  to  the 
conduct  of  the  defendants  inducing  or  affecting 
it)  a  question  of  fact ;  or,  2,  to  render  reasonable 
an  inference  of  fact  that  the  defendants,  by 
using  due  care,  could  have  obviated  the  con- 
sequence of  the  plaintiff's  negligence.  CoyU  t. 
Great  Northern  Railway,  infra. 

In  an  action  for  damages  for  negligence  it  is 
not  sufficient  to  entitle  the  plaintiff  to  have  his 
case  submitted  to  a  jury  that  he  has  proved  some 
negligence  on  the  part  of  the  defendants,  if  it 
also  appears  that  the  plaintiff  was  guilty  of  such 
contributory  negligence  that  no  reasonable  jury 
could  find  a  verdict  in  his  favour.  Wright*. 
Midland  Railway,  51  L.  T.  539 — D. 

In  an  action  of  negligence  if  the^plaintiff  giTes 
evidence  of  negligence  on  the  part  of  the  defen- 
dant, and  also  gives  evidence  which  may  or  may 
not  be  considered  as  amounting  to  contributory 
negligence  on  his  own  part,  the  case  ought  to  be 
left  to  the  jury.  Brown  v.  Great  Western 
Railway,  52  L.  T.  622— D. 

Where  in  an  action  for  damages  for  personal 
injuries  it  appears  from  the  plaintiffs  own 
evidence  that  the  injuries  sustained  were  partially 
attributable  to  his  omission  to  take  ordinary  pre- 
cautions against  a  danger  created  by  the  defen- 
dant's breach  of  duty,  there  is  no  case  to  go  to 
the  jury.  Sayer  v.  Hatton,  1  C.  &  E.  492— 
Huddleston,  B. 

— —  Connexion  with  Accident  —  Onus  of 
Proof.] — A  railway  line  crossed  a  public  foot- 
path on  the  level,  the  approaches  to  the  crossing 
being  guarded  by  hand  gates.  A  watchman  who 
was  employed  by  the  railway  company  to  take 
charge  of  the  gates  and  crossing  during  the  day 
was  withdrawn  at  night.  The  dead  body  of  a 
man  was  found  on  the  line  near  the  level  crossing 
at  night,  the  man  having  been  killed  by  a  train 
which  carried  the  usual  head  lights  but  did  not 


1289 


NEGLIGENCE— General  Principles. 


1290 


whistle  or  otherwise  give  warning  of  its  approach. 
No  evidence  was  given  of  the  circumstances 
under  which  the  deceased  got  on  to  the  line.  An 
action  on  the  ground  of  negligence  having  been 
brought  by  the  administratrix  of  the  deceased, 
the  jury  found  a  verdict  for  the  plaintiff  : — Held, 
that  even  assuming  (but  without  deciding)  that 
there  was  evidence  of  negligence  on  the  part  of 
the  company,  yet  there  was  no  evidence  to  con- 
nect such  negligence  with  the  accident ;  that 
there  was  therefore  no  case  to  go  to  the  jury, 
and  that  the  railway  company  were  not  liable. 
Observations  as  to  the  onus  of  proof  with  regard 
to  contributory  negligence.  Wakelln  v.  London 
and  Siwth  Western  llailway,  12  App.  Cas.  41  ; 
56  L.  J.,  Q.  B.  229  ;  53  L.  T.  709  ;  35  W.  R.  141  ; 
51  J.  P.  404— H.  L.  (E.) 

Particular  Instances.] — C.  was,  at  the 

time  of  the  accident  which  caused  his  death, 
and  had  been  for  some  three  weeks  pre- 
viously, employed  by  contractors  in  erecting 
a  signal-box  near  a  station  on  the  defendants' 
line  of  railway,  and  it  was  necessary  for  C.  and 
the  other  men  employed  in  the  work  to 
cross  the  line  to  procure  their  tools,  which  were 
kept  in  a  box  at  the  other  side  of  the  railway. 
When  C.  was  re-crossing  on  the  morning  of  the 
accident,  carriages  were  being  shunted,  as  was 
done  every  morning  at  that  hour,  to  make  up  a 
train,  and  some  of  these  passed  over  C,  who  was 
killed.  In  an  action  by  C.'s  administratrix 
under  Lord  Campbell's  Act  against  the  railway 
company,  it  appeared  from  the  evidence  of  the 
plaintiff's  own  witnesses,  that  the  view  from  the 
tool-box,  at  which  C.  was  standing,  to  the  point 
from  which  the  carriages  began  to  retrograde 
was  unobstructed ;  that  they  were  visible  during 
the  whole  of  the  shunting  to  any  person  at  the 
tool-box;  that  they  were  retrograding  in  the 
direction  of  C.  when  he  started  to  cross  the  line, 
and  that  he  must  have  seen  them  moving  had  he 
looked  towards  them,  and  that  there  was  nothing 
unusual  in  what  took  place  that  morning  in  the 
mode  of  shunting  : — Held,  that  the  judge  at  the 
trial  ought  to  have  directed  a  verdict  for  the 
defendants,  as  the  undisputed  facts  showed 
affirmatively  that  C.  in  crossing  the  line  acted 
negligently,  and  that  his  negligence,  if  not  the 
sole,  was  at  least  a  contributory  cause  of  the 
accident.  Coyle  v.  Great  Northern  ltailway, 
20  L.  K.  Ir.  409— Ex.  D. 

An  action  was  brought  under  Lord  Campbell's 
Act  by  a  widow  for  the  loss  of  her  husband. 
The  deceased  took  his  ticket  at  the  defendants' 
station,  at  9.30  p.m.,  intending  to  travel  by  a 
train  leaving  at  9.50  p.m.,  from  the  up  platform, 
which  was  opposite  to  that  on  which  the  booking 
office  was  situated.  There  was  no  sufficient 
accommodation  for  passengers  waiting,  except 
on  the  booking  office  side,  where  there  was  a 
waiting  room.  The  deceased  remained  there 
until  the  train  was  heard  approaching.  On 
hearing  the  train  approaching  the  deceased 
Attempted  to  reach  the  up  platform  by  a  level 
crossing,  at  each  end  of  which  lamps  were  fixed. 
There  was  no  bridge  or  subway  across  the  line. 
The  train  was  about  twenty  yards  from  the  cross- 
ng  when  the  deceased  attempted  to  cross.  He 
was  struck  by  the  engine  of  the  train  and  killed. 
At  the  approach  of  the  train  it  was  usual  for  a 
porter  to  stand  at  the  crossing  and  warn  pas- 
sengers. But  on  the  night  in  question  there  was 
no  porter  at  the  crossing,  and  no  notice  was  given 


of  the  approach  of  the  train ;  no  whistle  sounded, 
and  no  bell  was  rung.  The  judge  at  the  trial 
left  the  question  of  the  defendants'  negligence  to 
the  jury,  who  found  a  verdict  for  the  plaintiff: — 
Held,  that  the  judge  ought  to  have  withdrawn 
the  case  from  the  jury,  on  the  ground  that  the 
case  upon  the  plaintiff's  evidence  disclosed  such 
a  want  of  care  on  the  part  of  the  deceased,  as 
shewed  that  he  had  so  far  conduced  by  his  negli- 
gence to  the  accident  as  to  disentitle  the  plaintiff 
to  recover.  Wright  v.  Midland  Railway,  51 
L.  T.  539— D. 

The  plaintiff  was  engaged  in  the  loading  of  a 
cargo  on  board  the  defendant's  steamer.  His  duty 
was  to  direct  the  management  of  the  crane  by 
which  baleswere  slung  into  the  hold,  and  to  call 
out  to  the  men  working  the  crane  "  high  enough  " 
when  the  bale  was  hoisted  sufficiently  high  to 
be  lowered  into  the  hold.  For  this  purpose  his 
proper  place  was  to  stand  in  a  particular  part  of 
the  deck  ;  but  at  the  time  of  the  accident  there 
was  a  quantity  of  coal  on  this  spot,  which  pre- 
vented the  plaintiff  from  standing  there,  and  he 
accordingly  stood  under  a  plank,  called  a  flap, 
working  on  hinges,  and  necessarily  raised  when 
cargo  is  being  put  into  the  hold,  the  flap  being 
then  secured  by  a  rope  passing  through  a  block 
in  the  rigging  and  hooking  on  by  an  ordinary  open 
hook  to  a  ring  in  the  flap.  One  of  the  bales  was 
hoisted  too  high  and  struck  the  flap,  causing  the 
ring  to  slip  out  of  the  open  hook,  and  the  flap 
falling  in  horizontal  position  struck  the  plaintiff, 
who  was  severely  injured.  The  plaintiff 
admitted  that  he  knew  that  a  short  time  pre- 
viously the  flap  had  slipped  from  the  hook  in 
a  similar  manner  and  been  broken.  There  was 
also  evidence  that  at  the  time  of  the  accident 
the  plaintiff  was  standing  on  some  boards  and 
tarpaulin,  which  might  have  been  removed,  and 
that  if  he  had  been  standing  on  the  clear  deck 
there  would  have  been  sufficient  space  between 
the  deck  and  the  flap,  even  when  it  fell  into 
the  horizontal  position,  to  save  him  from  con- 
tact with  it.  The  judge  of  assize  found,  and  it 
was  in  fact  admitted,  that  the  defendants  were 
guilty  of  negligence  in  not  having  the  flap 
properly  secured,  and  in  permitting  the  place 
where  the  plaintiff  ought  properly  to  have  stood 
to  be  obstructed  with  coal.  He  also  found  that 
there  was  contributory  negligence  on  the  part 
of  the  plaintiff  in  standing  on  the  boards  and 
tarpaulin,  and  in  not  removing  them ;  and 
further,  in  not  properly  controlling  the  hoisting 
of  the  bale,  as  was  his  duty,  and  that  he  did  not 
exercise  reasonable  care  and  caution,  either  as 
to  his  place  or  manner  in  which  he  stood,  or  the 
management  of  the  hoisting  of  the  bale.  On  a 
special  case  : — Held,  that  there  was  evidence  of 
contributory  negligence  on  the  part  of  the  plain- 
tiff, and  that  the  action  should  be  dismissed. 
M'Ecoy  v.  Waterford  Steamshijt  Company,  18 
L.  R.,  Ir.  159— Ex.  D. 

Level   Croiiing— Accident    caused    by 


Plaintiff's  own  Negligence.] — The  defendants' 
railway  crossed  a  public  footpath  on  the  level. 
About  half-past  four  o'clock  in  the  afternoon  of 
the  29th  of  March,  the  plaintiff,  a  foot  passenger, 
while  crossing  from  the  down  side  to  the  up  side 
of  the  railway,  was  knocked  down  and  injured 
at  the  crossing  by  a  train  of  the  defendants  on 
the  up  line.  Owing  to  tlje  position  of  certain 
buildings  which  stood  by  the  line  it  was  im- 
possible for  any  one  crossing  from  the  down  side 


1291 


NEGLIGENCE— In  Particular  Cases. 


1292 


to  see  a  train  coming  until  he  got  within  a  step 
or  two  from  the  down  line,  but  a  person  stand- 
ing on  the  down  line  or  the  six-foot  had  a  clear 
and  uninterrupted  view  up  and  down  the  line 
for  several  hundred  yards.  The  plaintiff,  who 
lived  near  and  was  well  acquainted  with  the 
crossing,  stated  that  before  crossing  he  looked  to 
the  right  along  the  down  line,  but  he  admitted 
that  he  did  not  look  to  the  left  along  the  up 
line,  and  that  if  he  had  looked  he  must  have  seen 
the  train  coming.  The  engine-driver  did  not 
whistle.  There  was  a  servant  of  the  defendants 
employed  as  a  gate-keeper  at  the  crossing,  whose 
duty  it  was  to  open  the  carriage  gates  there 
when  carriages  could  safely  be  admitted,  and 
to  close  them  at  other  times.  He  was  standing 
at  the  time  on  the  opposite  side  of  the  crossing 
talking  to  two  boys,  with  a  furled  flag  in  his  hand  ; 
but  he  gave  no  warning  to  the  plaintiff  that  a 
train  was  coming.  The  plaintiff  having  brought 
an  action  against  the  defendants  to  recover  com- 
pensation for  his  injuries,  was  nonsuited  on  the 
above  facts  being  proved  at  the  trial : — Held, 
by  Brett,  M.R.,  and  Bowen,  L.  J.  (Baggallay, 
L.  J.,  dissenting),  that  the  nonsuit  was  right,  as 
although  there  was  evidence  of  negligence  on 
the  part  of  the  defendants,  yet  according  to  the 
undisputed  facts  of  the  case  the  plaintiff  had 
shown  that  the  accident  was  solely  caused  by  his 
omission  to  use  the  care  which  any  reasonable 
man  would  have  used.  Darey  v.  London  and 
South  Western  Railway,  12  Q.  B.  D.  70  ;  53  L. 
J.,  Q.  B.  58  ;  49  L.  T.  739  ;  48  J.  P.  279— C.  A. 
Plaintiff,  an  intending  passenger  by  the  de- 
fendant's railway,  having  received  his  ticket, 
was  obliged  to  cross  the  line  by  a  level  crossing 
in  order  to  get  from  the  booking-office  to  the 
platform  from  which  his  train  would  start. 
Whilst  crossing  he  was  knocked  down  and 
injured  by  a  train  which  he  was  unable  to  see 
till  it  was  about  twenty  yards  from  him,  owing 
to  a  sharp  carve  on  the  line.  The  night  was 
dark,  and  there  was  no  one  at  the  crossing  to 
warn  the  plaintiff  of  the  approaching  train,  which 
was  a  special  train  running  through  the  station 
at  a  fast  speed,  and  not  mentioned  in  the  time- 
tables. The  learned  judge  at  the  trial  directed 
a  nonsuit  on  the  authority  of  Davey  v.  London 
and  South-Western  Railway  (12  Q.  B.  D.  70)  : 
— Held,  that  the  case  ought  not  to  have  been 
withdrawn  from  the  jury,  and  that  the  nonsuit 
was  wrong.  Brown  v.  Great  Western  Railway, 
52  L.  T.  622— D. 


II.    IN   PARTICULAR  CASES. 
1.  Navigation  of  Steamships. 

Failure  of  Steam  Steering  Gear.] — The  steam- 
ship E.  while  proceeding  down  the  river  Thames 
came  into  collision  with  a  brig  which  was 
moored  alongside  a  wharf.  The  cause  of  the 
collision  was  the  failure  of  the  steam  steering 
gear  on  board  the  E.  The  same  steering  gear 
had  failed  in  an  exactly  similar  manner  a  few 
days  before,  as  the  E.  was  on  her  inward  voyage. 
It  was  then  disconnected,  and  the  hand  gear 
used  on  the  way  up  the  river.  On  the  ship's 
arrival  the  machinery  was  taken  to  pieces  and 
examined,  but  nothing  was  found  wrong  with  it, 
nor  was  the  cause  of  the  failure  ascertained  : — 
Held,  that  having  regard  to  what  had  happened 
on  the  inward  voyage,  to  trust  the  control  of  the 


ship  to  the  same  steering  gear  in  the  crowded 
and  intricate  navigation  of  the  Thames  consti- 
tuted negligence.  The  European,  10  P.  D.  99 ; 
54  L.  J.,  P.  61  ;  52  L.  T.  868;  33  W.  R.  937; 
5  Asp.  M.  C.  417— Butt,  J. 

Identification  with  Wrongdoer.] — See  supra. 


2.  Railway  Companies. 

Locomotive  Engine  at  Station — Noise  of  Steam 
— Duty  to  Screen.] — In  an  action  against  the 
defendants,  a  railway  company,  it  appeared  that 
the  plaintiffs  were  leaving  a  station  belonging  to 
the  defendants  in  a  carriage,  when  the  horse  was 
frightened  by  the  sight  and  sound  of  a  locomotiYe 
engine  at  the  station  which  was  blowing  off 
steam,  and  the  carriage  was  upset  and  the  plain- 
tiffs injured.  It  did  not  appear  that  the  engine 
was  defective,  or  that  it  was  used  in  an  improper 
manner,  or  that  the  approach  to  the  station  was 
inconvenient,  but  the  jury  found  that  the  defen- 
dants were  guilty  of  negligence  in  not  screening 
the  railway  from  the  roadway  leading  to  the 
station,  and  that  such  negligence  had  caused  the 
accident : — Held,  that  the  defendants  were  not- 
liable,  as  there  was  no  evidence  of  any  obliga- 
tion on  their  part  to  screen  the  railway  from  the 
road.  Simkin  v.  London  and  JYorth  Wtstcm 
Railway,  21  Q.  B.  D.  453  ;  59  L.  T.  797  ;  53  J.  P. 
85— C.  A. 

Level  Crossing— Foot-passenger— Evidence  of 
Negligence.  ] — A  few  minutes  after  three  o'clock 
p.m.  in  clear  daylight,  C,  who  was  a  resident  in 
the  locality,  had  occasion  to  traverse  a  level 
crossing  on  the  line  of  the  defendant  railway 
company,  close  to  the  L.  station.  There  was  a 
large  swing-gate  on  each  side  of  the  line  at  the 
crossing  for  heavy  traffic,  besides  a  wicket  for 
foot-passengers.  An  express  train,  which  usually 
travelled  at  the  rate  of  about  thirty  miles  an 
hour,  was  timed  to  pass  this  point  at  2.30  p.nL, 
but  was  about  forty  minutes  late  on  the  day  in 
question,  and  another  train  was  due  at  3.15. 
The  large  gates  were  closed,  but  no  attempt  was 
made  by  the  company's  servants  to  prevent  C. 
from  crossing,  or  to  warn  him  of  impending 
danger.  Just  after  getting  on  the  line,  C.  made 
an  inquiry  from  a  person  who  was  standing  on 
the  platform  of  the  station,  and  immediately 
afterwards  another  person  on  the  platform 
shouted  to  C.  to  "  look  out  for  the  train."  C. 
was  then  on  the  "six-foot  way,"  and  the 
approaching  express  was  about  twelve  yards  dis- 
tant on  the  rails  towards  which  he  was  walking. 
C.  became  confused,  and,  instead  of  going  back, 
ran  forward,  and  was  killed.  There  was  evidence 
that  the  express  train  usually  whistled  about  a 
mile  before  reaching  the  station  ;  but  a  witness 
stated  that,  on  this  occasion,  he  heard  it  whist- 
ling while  passing  through  the  station.  It  was 
further  proved  that  the  line,  in  the  direction 
from  which  the  train  came,  was  visible  for  at 
least  200  yards,  and  according  to  some  of  the 
witnesses,  for  half  a  mile  from  the  crossing.  The 
company,  after  the  accident,  took  additional  pre- 
cautions, as  to  locking  the  wicket  and  otherwise, 
when  trains  were  expected.  In  an  action,  under 
Lord  Campbell's  Act,  by  C.'s  personal  representa- 
tive against  the  company  : — Held,  that  there  was 
no  evidence  of  negligence  on  the  part  of  the  de- 


1293 


NEGLIGENCE— In  Particular  Cases, 


1294 


fendants,  and  that  the  jury  had  been  rightly  so 
directed.  Curtiny.  Great  Southern  and  Western 
Xailuay,  22  L.  R.,  Ir.  219— C.  A. 


— -  Obligation  to  Fence-in  Railway.]— At 
1he  point  where  a  railway  crossed  a  high  road 
by  a  level  crossing  there  were  two  large  gates, 
which,  when  closed,  covered  the  entire  width  of 
the  metalled  road  and  fenced-in  the  line  there- 
from. At  the  side  of  the  large  gates,  and  beyond 
the  width  of  the  metalled  road,  but  com- 
municating therewith  by  a  short  foot-path,  there 
was  a  small  gate  for  foot-passengers.  A  piece  of 
fence,  which  stood  immediately  beyond  the  small 
gate,  and  against  which  it  rested,  was  allowed  by 
the  railway  company  to  get  out  of  repair,  and 
became  rotten,  in  consequence  whereof  some 
horses  belonging  to  the  plaintiff,  which  were 
rtraying  on  the  high  road,  were  enabled,  by 
passing  along  the  short  foot-path  and  pushing 
against  the  fence,  to  get  on  to  the  line,  where 
they  were  killed  by  a  passing  train  : — Held,  that 
the  company  had  failed  to  satisfy  the  obligation 
to  fence  their  line  imposed  on  them  by  s.  47  of 
the  Railway  Clauses  Act,  1845,  and  were  liable 
in  an  action  for  damages.  CharmanT.  South 
Eaxtern  Railway.  21  Q.  B.  D.  524  ;  57  L.  J., 
Q.  B.  597  ;  37  W.  R.  8  ;  53  J.  P.  86— C.  A. 


snpra. 


Contributory   Negligence.  ]  —  See    cases 


Insufficiency  of  Gate  —  Evidence  of  Kegli- 
geneo.] — The  fact  of  a  railway  company  knowing 
that  a  gate  erected  under  s.  8  of  the  Railway 
Clauses  Act,  1845,  is  out  of  repair  by  a  spring 
catch  being  ineffective,  although  the  gate  be  also 
provided  with  a  staple  and  hasp,  and  padlock 
and  key,  is  some  evidence  for  a  jury  that  the  com- 
pany were  guilty  of  negligence.  Jirooks  v.  Lon- 
ion  and  North  Western  Railway,  33  W.  R.  167 
-D. 


3.  INNKEEPERS. 

Evidence.] — A  guest  in  an  inn,  the  property 
of  the  respondent  company,  left  his  bedroom  in 
the  middle  of  the  night  to  go  to  a  water-closet. 
There  were  properly  lighted  and  easily  accessible 
closets  in  the  same  corridor,  but  he  went  into  a 
dark  "service"  room,  the  door  of  which  was 
shut  but  not  locked,  and  fell  down  the  unguarded 
well  of  a  lift  at  the  end  of  the  room  and  was 
killed.  The  service  room  was  not  lighted  or 
OHjd  at  night,  and  visitors  had  no  business  there 
at  any  time.  In  an  action  brought  by  the 
personal  representatives  of  the  deceased : — Held, 
that  there  was  no  evidence  of  negligence  on  the 
port  of  the  respondent  company  to  go  to  the 
jnry.  Walker  v.  Midland  Railway,  65  L.  T. 
489  ;  51  J.  P.  116— H.  L.  (E.). 

liability  for  Property  of  Guest — Temporary 
lefreahment.]— The  plaintiff  arrived  at  Carlisle 
with  the  intention  of  spending  the  night  at  the 
defendant's  hotel,  which  adjoined  the  railway 
ttation.  He  delivered  his  luggage  to  one  of  the 
porters  of  the  hotel,  but,  after  reading  a  telegram 
which  was  waiting  for  him,  decided  not  to  spend 
the  night  at  Carlisle,  and  went  into  the  coffee- 
room  to  order  some  refreshments.  He  was  not 
able  to  obtain  in  the  coffee-room  exactly  what  he 
required,  and  went  into  the  station  refreshment- 


room,  which  was  under  the  same  management  as 
the  hotel,  and  connected  with  it  by  a  covered 
passage.  Shortly  afterwards  he  went  out,  telling 
the  porter  to  lock  up  his  luggage,  and  it  was 
locked  up  in  a' room  near  the  refreshment-room. 
On  his  return  he  found  that  part  of  it  was  miss- 
ing : — Held,  that  at  the  time  of  the  loss  of  the 
plaintiff's  goods  there  was  no  evidence  of  the 
relation  of  landlord  and  guest  between  him  and 
the  defendants,  so  as  to  make  them  responsible. 
Straws  v.  County  Hotel  and  Wine  Company,  12 
Q.  B.  D.  27 ;  63  L.  J.,  Q.  B.  25 ;  49  L.  T.  601  ; 
32  W.  R.  170  ;  48  J.  P.  69— D. 


4.  Dangerous  Premises  or  Chattels. 

Duty  to  take  Precautions — Workman  com- 
pelled to  work  in  dangerous  Place — Knowledge 
of  Danger.] — The  plaintiff  was  a  workman,  who 
was  directed  by  his  employer  to  work  in  a  par- 
ticular place.  The  defendants  were  contractors 
engaged  in  work  above  the  place  where  the 
plaintiff  was  working.  The  defendants'  work 
was  of  such  a  nature  as  to  be  dangerous  to  per- 
sons working  below  unless  proper  precautions 
were  taken  for  their  safety.  The  plaintiff  waB 
aware  of  the  danger. — The  plaintiff,  while  work- 
ing where  he  was  directed  by  his  employer,  was 
injured  by  a  piece  of  iron  dropped  by  the  de- 
fendants1 workmen,  and  brought  an  action  to 
recover  damages  for  the  injury.  The  jury  found 
that  the  defendants  had  been  guilty  of  negligence 
in  not  taking  proper  precautions  for  those  below, 
that  there  was  no  contributory  negligence  on  the 
part  of  the  plaintiff,  and  that  the  plaintiff  did 
not  voluntarily  incur  the  risk  : — Held,  that  the 
case  was  rightly  left  to  the  jury,  that  although 
the  plaintiff  was  aware  of  the  danger,  yet,  as  he 
was  compelled  by  the  orders  of  his  employer  to 
work  where  he  was  working  when  the  accident 
happened,  the  maxim  "  Volenti  non  fit  injuria  " 
did  not  apply,  and  he  was  entitled  to  recover. 
Woodley  v.  Metropolitan  District  Railway  (2  Ex. 
D.  384)  distinguished.  Thrussell  v.  Handyside, 
20  Q.  B.  D.  359 ;  57  L.  J.,  Q.  B.  347  ;  68  L.  T. 
344  ;  52  J.  P.  279— D. 


Knowledge  of  Nature  and  Extent  of 


Danger.] — The  plaintiff  was  injured  by  falling 
on  steps  leading  to  the  defendants'  railway 
station,  which  the  defendants  had  allowed  to  be 
slippery  and  dangerous.  There  was  no  contri- 
butory negligence  on  the  part  of  the  plaintiff, 
but  there  were  other  steps  which  he  might  have 
used,  and  he  admitted  that  he  knew  that  the 
steps  were  dangerous,  and  went  down  carefully 
holding  the  handrail : — Held,  that  the  defendants 
had  not  shown  that  the  plaintiff,  with  a  full 
knowledge  of  the  nature  and  extent  of  the 
danger,  had  voluntarily  agreed  to  incur  it,  so  as 
to  make  the  maxim  "  Volenti  non  fit  injuria " 
applicable,  and  therefore  he  was  entitled  to  re- 
cover. Osborne  v.  London  and  North  Western 
Railway,  21  Q.  B.  D.  220  ;  57  L.  J.,  Q.  B.  618 ; 
59  L.  T.  227  ;  36  W.  R.  809  ;  52  J.  P.  806— D. 

Liability  of  Landlord  to  Passer-by.]  —  The 

plaintiff  was  injured  through  a  defect  in  the 
condition  of  a  coal*  plate  in  the  pavement  in 
front  of  a  house  let  by  the  defendant  on  a 
weekly  tenancy,  and  such  defect,  though  not 
shown  to  have  been  in  existence  at  the  com- 
mencement of   the  tenancy,  had   existed   for 


1295 


NEGLIGENCE— In  Particular  Cotes. 


1296 


nearly  two  years  "before  the  accident: — Held, 
that,  having  regard  to  the  nature  of  the  tenancy, 
there  had  been  a  re-letting  of  the  premises  after 
the  nuisance  was  created,  and  that  the  defen- 
dant, as  reversioner,  was  liable.  Gandy  v. 
Jubber  (5  B.  &  S.  78 ;  9  lb.  15)  discussed. 
Sandford  v.  Clarke,  21  Q.  B.  D.  398  ;  67  L.  J., 
Q.  B.  507  ;  59  L.  T.  226 ;  37  W.  R.  28  ;  52  J.  P. 
773— D. 

Liability  of  Landlord  to  Sub-tenant.] — Where 
a  landlord  is  under  no  liability  to  his  tenant  to 
repair  the  premises,  and  a  sub-tenant  as  to  part 
of  the  premises  receives  personal  injuries  owing 
to  the  defective  state  of  the  premises,  the  land- 
lord is  under  no  liability  to  such  sub-tenant. 
JTorris  v.  Catmur,  1  0.  &  B.  576— Huddleston, 
B. 

Occupier  of  Premises — Persons  not  invited.] 

— There  is  no  duty  on  the  part  of  the  occupier  of 
premises  to  render  them  secure  for  persons  using 
them  without  invitation  for  their  own  gratifica- 
tion.   Jewson  v.  Gatti,  1  C.  &  E.  564 — Day,  J. 

Duty  to  Pence — Diversion  of  Highway.] — A 

duty  is  cast  upon  those  who,  in  the  exercise  of 
statutory  powers,  divert  a  public  footpath,  to 
protect,  by  fencing  or  otherwise,  reasonably 
careful  persons  using  the  footpath  from  injury 
through  going  astray  at  the  point  of  diversion. 
Hurst  v.  Taylor,  14  Q.  B.  D.  918  ;  54  L.  J.,  Q.  B. 
310  ;  33  W.  R.  582  ;  49  J.  P.  359— D. 


Act   of   Stranger.]  —  See   SUverton  v. 


Marriott,  infra. 

Quarry.] — The  plaintiff  was  in  the  occu- 
pation of  the  surface  of  a  field,  and  the  defen- 
dants were  in  the  occupation  of  a  quarry  in  the 
same  field.  Both  held  under  the  same  landlord. 
The  quarry  was  entirely  unfenced.  One  of  the 
plaintiff's  bullocks  fell  into  the  quarry  and  was 
killed  : — Held,  that  the  plaintiff  was  entitled  to 
recover  damages  from  the  defendants  for  the  loss 
of  his  bullock.  Ha  when  v.  Shearer,  56  L.  J., 
Q.  B.  284— D. 

Articles  gold  consigned  in  Defective  Truck 
to  Vendee— Injury  to  Servant  of  Vendee.] — The 

defendant,  a  colliery  owner,  consigned  coals  sold 
by  him  to  the  buyers  by  rail  in  a  truck  rented 
by  him  from  a  waggon  company  for  the  purposes 
of  the  colliery.  Through  the  negligence  of  the 
defendant's  servants  the  truck  was  allowed  to 
leave  the  colliery  in  a  defective  state.  In  con- 
sequence of  the  defect  in  the  truck  injury  was 
occasioned  to  the  plaintiff,  one  of  the  buyer's  ser- 
vants, who  was  employed  in  unloading  the  coals, 
and  had  got  into  the  truck  for  that  purpose  : — 
Held,  that  there  was  a  duty  on  the  part  of  the 
defendant  towards  the  plaintiff  to  exercise  rea- 
sonable care  with  regard  to  the  condition  of  the 
truck,  and  the  defendant  was  therefore  liable  to 
the  plaintiff  in  respect  of  the  injuries  sustained 
by  him.  Elliott  v.  Hall,  or  Nailstone  Colliery 
Company,  15  Q.  B.  D.  315  ;  54  L.  J.,  Q.  B.  618  j 
34  W.  R.  16— D. 


5.  Liability  foe  Acts  of  Stranger. 

Nuisance   near   Highway  —  Knowledge   of 
Owner.] — Where  property  abutting  on  a  high- 


way becomes  through  the  wrongful  act  of 
strangers  a  nuisance  to  the  public  lawfully 
using  the  highway,  the  owner  of  such  property 
has  a  duty  cast  upon  him  from  the  moment  he 
becomes  aware  of  the  danger  to  take  steps  to 
prevent  his  property  becoming  a  source  of  injury 
to  the  public.  Silverton  v.  Marriott,  59  L.  T. 
61  ;  52  J.  P.  677— D. 

Percolation  of  Water — Compensation— Com- 
pany with  Statutory  Powers.] — A  company  with 
statutory  powers  suffered  water  to  percolate  from 
their  canal  into  an  adjoining  mill  and  cause 
damage.  Such  percolation  arose  in  the  first  in- 
stance from  a  subsidence  of  the  land  caused  by 
the  working  of  a  mine-owner  under  both  the  canal 
and  the  mill,  and  could  not  have  been  foreseen 
or  prevented  by  the  company  by  any  reasonable 
means  at  any  reasonable  cost : — Held,  that  the 
canal  company  were  nevertheless  guilty  of  negli- 
gence in  not  making  good  the  damage  when  it 
occurred,  and  must  pay  compensation  to  be 
assessed  as  provided  by  the  Canal  Act,  but 
that  it  was  not  a  case  for  granting  an  injunc- 
tion against  the  company  to  restrain  the  per- 
colation of  water.  Evans  v.  Manchester,  Shef- 
field, and  Lincolnshire  Railway,  36  Ch.  D.  626; 
57  L.  J.,  Ch.  153  ;  57  L.  T.  194  ;  36  W.  R.  328- 
Kekewich,  J. 


6.  Liability  of  Master  for  Acts  op 

Servant. 

Damage  to  Oyster  Beds— Liability  of  Ship- 
owner and  Pilot.] — A  ship  in  charge  of  a  com- 
pulsory pilot  was  at  high  water  brought  into 
and  anchored  by  the  pilot  in  a  river  in  which 
there  were  oyster  beds,  the  existence  of  which 
was  known  to  the  pilot.  The  place  where  she 
was  anchored  was  not  the  usual  and  customary 
place  for  vessels  of  her  size  and  draught  to 
anchor  in.  At  low  water  she  grounded,  and 
thereby  did  damage  to  an  oyster  bed.  On  notice 
of  the  existence  of  the  oyster  bed  being  given  to 
the  master,  he  took  all  reasonable  means  to 
remove  the  ship  as  speedily  as  possible.  In  an 
action  by  the  lessee  of  the  oyster  bed  against 
the  shipowner  and  the  pilot : — Held,  that  the 
act  of  the  pilot  in  anchoring  the  ship  where  he 
did  was  negligence  which  made  him  liable,  but 
that  the  ship  was  not  liable  because  the  master's 
duty  on  receiving  notice  of  the  existence  of  the 
oyster  bed  was  to  take  all  reasonable  measures— 
not  extraordinary  measures — to  remove  his  ship, 
and  this  he  had  done.  The  Octavia  Stella,  57 
L.  T.  632  ;  6  Asp.  M.  C.  182— Hannen,  P. 

Negligence  of  Servant  hired  to  drive  Cart- 
Liability  of  Hirer.]— D.  contracted  with  the 
defendants,  an  urban  authority,  to  supply  by  the 
day  a  driver  and  horse  to  drive  and  draw  a 
watering-cart  belonging  to  the  defendants. 
The  driver  was  employed  and  paid  by  I).,  and 
was  not  under  the  defendants'  direction  or 
control  otherwise  than  that  their  inspector 
directed  him  what  streets  to  water.  In  an 
action  to  recover  damages  for  injuries  caused 
by  the  negligent  conduct  of  the  driver  whilst 
in  charge  of  the  cart:— Helfl,  that  the  defen- 
dants were  not  liable.  Quarman  v.  Burnett 
(6  M.  &  W.  499)  followed.  Eovrhe  v.  White 
Moss  Colliery  Company  (2  C.  P.  D.  205)  distia- 
guished.    Jones  v.  Liverpool   Corporation,  1* 


1297 


NEGLIGENCE— In  Particular  Cases. 


1298 


Q.  B.  D.  890  ;  54  L.  J.,  Q.  B.  345  ;  33  W.  B.  551  ; 
49  J.  P.  311— D. 

Implied  Authority — Scope  of  Employment.] — 

In  an  action  for  injuries  sustained  through  the 
negligent  driving  of  one  of  defendant's  servants, 
the  only  question  being  whether  the  defendant 
was  responsible  for  such  negligence,  it  appeared 
that  the  defendant  was  the  proprietor  of  an  hotel 
and  shop  in  the  town  of  C,  and  kept  a  pony  and 
chaise  for  his  own  personal  use.  They  were  not 
used  for  the  purpose  of  the  defendant's  business. 
The  accident  which  occasioned  the  injuries 
occurred  during  the  temporary  absence  of  the 
defendant,  who  had  left  a  servant,  E.,  in  charge 
of  the  shop  only,  with  authority  to  sell  goods, 
and  generally  to  see  that  things  went  right  in 
his  absence.  The  defendant  gave  E.  no  authority 
to  drive.  Another  servant,  named  M.,  was  in 
charge  of  the  yard,  and  it  was  his  duty  to  drive 
when  defendant  required.  A  housekeeper  had 
charge  of  the  house.  While  the  defendant  was 
so  absent,  one  of  his  relatives,  Q.,  who  admit- 
tedly had  no  authority  to  act  as  his  agent,  called 
at  the  house,  and  when  leaving,  E.,  at  Q.'s  re- 
quest, drove  Q.  in  the  pony  chaise  to  the  neigh- 
bouring railway  station.  When  E.  was  driving 
the  pony  and  chaise  back  from  the  station  the 
accident  took  place  : — Held,  that  there  was  no 
evidence  proper  to  be  submitted  to  the  jury  that 
£.  was  at  the  time  of  the  accident  acting  in  the 
coarse  of  his  employment  as  the  defendant's 
servant.  Wilson  v.  Owens,  16  L.  B.,  Ir.  225— 
Ex.  D.    Affirmed  in  C.  A. 

The  B.,  which  was  anchored  in  F.  outer 
harbour,  having  to  be  beached  in  the  inner 
harbour,  8.,  the  harbour-master,  directed  the 
master  of  the  B.  where  to  beach  her.  Before 
the  B.  left  the  outer  harbour,  8.  came  on  board, 
although  a  Trinity-house  pilot  was  on  board,  and 
when  she  had  arrived  near  the  place  where  she 
had  to  be  beached,  gave  directions  as  to  the 
lowering  of  her  anchor.  The  B.  overran  her 
anchor  and  grounded  on  it,  sustaining  damage. 
In  an  action  against  the  harbour  commissioners 
and  6.,  the  court  found  as  a  fact  that  there  was 
negligence  on  the  part  of  S.,  and  that  the  place 
where  the  B.  grounded  was  outside  the  jurisdic- 
tion of  the  harbour  commissioners : — Held,  that 
the  duties  of  the  harbour-master  comprised 
directions  as  to  the  mooring  and  beaching  of 
Teasels ;  that  by  giving  directions  when  he  went 
on  board,  S.  had  resumed  the  functions  as 
harbour-master,  and  that  he  and  the  commis- 
sioners were  therefore  liable  for  the  damage 
done  to  the  B.  Tlie  Rhosina,  10  P.  D.  131 ;  54 
I*.  J.,  P.  72  ;  53  L.  T.  30 ;  33  W.  B.  794  ;  5  Asp. 
M.  C.  460— C.  A. 

The  plaintiff,  after  purchasing  some  felt 
from  the  defendants,  went  into  a  loft  where 
the  felt  was  stored,  to  inspect  the  article  pur- 
chased. The  loft  was  open  at  one  end,  and  the 
plaintiff  was  acquainted  with  the  construction 
of  it  The  plaintiff  and  C,  a  servant  of  the 
defendants,  proceeded  to  unroll  the  felt,  and  the 
plaintiff,  who,  in  the  act  of  so  doing,  was  walking 
backwards,  fell  from  the  loft,  and  sustained 
personal  injuries.  He  brought  an  action  against 
the  defendants  for  damages  for  injuries  caused 
by  their  negligence,  and  the  jury  by  whom  the 
case  was  tried,  among  other  findings,  found 
that,  but  for  the  plaintiff's  own  negligence,  the 
Accident  wonid  not  have  happened,  and  also 
that  C.  was  not  acting  within  the  scope  of  his 


employment  in  obtaining  the  plaintiff's  assist- 
ance to  unroll  the  felt  .—Held,  that  the  verdict 
should  be  entered  for  the  defendants.  Sullivan 
v.  O'Connor,  22  L.  B.,  Ir.  467— C.  A. 


7.  Licensees. 

Duty  towards  Lioensee — Runaway  Horse  and 
Cart — Plaintiff  injured  while  on  Defendant's 
Premises.] — The  defendant's  horse,  by  the  negli- 
gence of  the  defendant's  servant,  ran  away  with 
a  cart,  and  turned  from  a  highway  into  the 
yard  of  the  defendant's  house,  which  opened  on 
to  the  highway.  The  plaintiff's  wife,  who 
happened  to  be  paying  a  visit  at  the  defendant's 
house,  ran  out  into  the  yard  to  see  what  was  the 
matter,  when  she  was  met  and  knocked  down 
by  the  horse  and  cart,  receiving  serious  in- 
juries : — Held,  that  under  the  circumstances 
there  was  no  duty  on  the  part  of  the  defendant 
to  use  ordinary  care  towards  the  plaintiff's  wife, 
and  that  the  action  was,  therefore,  not  main- 
tainable. Tolhausen  v.  Davies,  57  L.  J.,  Q.  15. 
392  ;  59  L.  T.  436  ;  52  J.  P.  804— D.  Affirmed 
58  L.  J.,  Q.  B.  98— C.  A. 

Bisks  incident  to  Position.]— The  de- 
ceased was  employed  by  a  builder  to  watch  and 
protect  certain  unfinished  buildings.  Workmen 
were  employed  by  the  defendant,  a  contractor, 
on  the  land  near  to  where  the  deceased  was  on 
duty,  to  excavate  the  earth  for  the  foundations 
of  other  buildings.  In  the  performance  of  this 
operation  they  employed  a  steam  crane  and 
winch  to  which  were  attached  a  chain  and  iron 
bucket,  by  means  of  which  the  earth  was  raised 
from  the  excavation  and  thence  to  the  carts 
which  were  to  carry  it  away.  The  deceased 
had  nothing  to  do  with  the  excavations,  but 
was  standing  where  he  need  not  have  been, 
watching  the  defendant's  men  at  work,  and 
allowing  the  bucket  to  pass  some  three  feet  over 
his  head,  when  the  chain  broke  and  the  bucket 
and  its  contents  falling  upon  him,  so  injured  him 
that  he  subsequently  died : — Held,  that  there 
was  no  evidence  of  negligence  in  the  defendant's 
workmen  ;  that  the  deceased  was  at  the  most  a 
bare  licensee ;  and  that  he  stood  where  he  did 
subject  to  all  the  risks  incident  to  the  position  in 
which  he  had  placed  himself.  Batchelor  v.  For- 
tescut,  11  Q.  B.  D.  474  ;  49  L.  T.  644— C.  A. 


8.  Contractor  and  Employer. 

Liability.] — P.,  who  was  the  owner  of  a  plot 
of  ground  in  Belfast,  employed  C,  a  contractor, 
to  build  a  house  thereon.  The  front  of  the  house 
faced  a  street,  but  one  side  extended  along  vacant 
ground,  and  was  not  protected  by  any  hoarding. 
A  brick  fell  out  from  the  wall  on  this  side  and 
struck  the  plaintiff's  child,  who  died  from  the 
injuries  so  received.  In  an  action  by  the  plaintiff 
for  negligence  causing  death : — Held,  that  P.  was 
not  liable  for  negligence  by  C.  as  contractor,  and 
that  therefore  a  verdict  was  properly  directed 
for  him.  Crawford  v.  Peel,  20  L.  B.,  Ir.  332— 
C.  P.  D. 

The  plaintiff,  an  owner  in  fee  simple  of  a  house 
in  London,  brought  an  action  against  builders 
claiming  damages  on  the  ground  that  they,  in  the 
course  of  rebuilding  an  hotel,  had  caused  injury 
to  the  plaintiff's  house  by  cracking  and  displacing 


1299 


NEGLIGENCE— In  Particular  Cases. 


1800 


the  wall,  and  also  asking  for  an  injunction.  On 
the  motion  for  injunction  an  inquiry  as  to  damage 
was  directed  to  be  taken  before  a  6pecial  referee, 
and  the  referee  assessed  the  structural  damage 
at  40Z.,  without  prejudice  to  any  question  of 
liability.  The  defendants  in  their  defence  raised 
the  contention  that  the  works  were  executed 
under  the  provisions  of  the  Metropolitan  Build- 
ing Act,  and  that  the  damage  (if  any)  to  the 
plaintiff's  premises  was  "a  necessary  conse- 
quence of  carrying  out  the  said  works,"  and  that 
the  plaintiff's  remedy  (if  any)  was  only  against 
the  building  owner  by  whom  the  defendants 
were  employed : — Held,  that  the  Metropolitan 
Building  Act  did  not  exonerate  a  builder  from 
liability  for  damage  which  had  arisen  from  his 
negligence  and  want  of  care  and  skill.  The 
maxim  **  Res])ondeat  superior  "  does  not  absolve 
the  inferior,  if  by  his  negligence  a  loss  has  been 
sustained.  If,  in  doing  the  act,  he  is  guilty  of 
negligence  whereby  less  and  damage  are  occa- 
sioned to  another,  he  is  personally  liable.  White 
v.  Peto,  58  L.  T.  710— Kay,  J. 


9.  Public  Bodies. 

Corporation  performing  Public  Duties  — 
Trinity  House.]— By  the  Merchant  Shipping 
Act,  1854,  the  superintendence  and  management 
of  all  lighthouses  and  beacons  in  England  and 
the  adjacent  seas  are  vested  in  the  Trinity 
House,  subject  to  the  existing  jurisdiction  of 
local  lighthouse  authorities  ;  the  Trinity  House 
continuing  to  hold  and  maintain  all  property 
vested  in  them  in  the  same  manner  and  for  the 
same  purposes  as  they  have  hitherto  held  and 
maintained  the  same,  and  extensive  powers  are 
given  to  them,  to  be  exercised  with  tne  consent 
of  the  Board  of  Trade,  in  respect  of  the  manage- 
ment and  control  of  lighthouses  and  beacons 
which  are  subject  to  the  jurisdiction  of  local 
authorities,  and  in  other  respects.  The  act 
further  provides  that  the  light  dues  levied  by 
the  Trinity  House  shall  be  carried  to  the  account 
of  the  Mercantile  Marine  Fund;  that  the  ex- 
penses incurred  in  respect  of  the  service  of  light- 
houses  and  beacons  shall  be  paid  out  of  that 
fund  ;  that  the  Trinity  House  shall  account  to 
the  Board  of  Trade  for  their  receipts  and  expen- 
diture, and  that  their  accounts  shall  be  audited 
by  the  Commissioners  of  Audit : — Held,  that  the 
Corporation  of  Trinity  House  were  not  by  virtue 
of  the  Merchant  Shipping  Act,  1854,  constituted 
servants  of  the  Crown  so  as  to  exempt  them  from 
liability  to  an  action  for  negligence  in  the  per- 
formance of  their  duties.  A  beacon  vested  in 
the  Corporation  of  Trinity  House  having  become 
partially  destroyed,  they  licensed  G.  to  remove 
it,  and  in  so  doing  he  negligently  left  an  iron 
stump  sticking  up  under  water.  In  an  action  to 
recover  damages  caused  thereby  to  the  plaintiffs 
ship  : — Held,  that  the  defendants  were  liable  for 
G.'s  negligence.  Gilbert  v.  Trinity  House  Cor- 
poration, 17  Q.  B.  D.  795  ;  56  L.  J.,  Q.  B.  85 ;  35 
W.  R.  30— D. 

Executive  Government  of  Colony — Control  of 
Harbour.] — In  a  proceeding  under  the  Crown 
Suits  Act,  1861,  it  appeared  that  a  harbour  was 
under  the  management  of  the  executive  govern- 
ment of  the  colony,  which  appointed  the  harbour 
officials  and  received  rates  for  the  use  of  staiths 
and  wharves,  but  no  harbour  dues  : — Held,  that 


such  executive  government  was  liable  for  negli- 
gence in  permitting  an  obstruction  to  remain  in 
the  harbour  by  which  the  plaintiff's  ship  was  in- 
jured. Beg.  v.  William*,  9  App.  Cas.  418 ;  53 
L.  J.,  P.  C.  64  ;  51  L.  T.  546— P.  C.  Cp.  The 
lihotijia,  ante,  col.  1297. 

Liability  of  Local  Boards.  ]—&*  Health,  VII. 

Liability  of  Vestry.]— See  Metropolis,  1. 2. 

10.  In  other  Case& 

Trespass — Injury  caused  by  Dog— Liability  «f 
Owner  or  Person  in  charge  o£] — The  plaintiff,  a 
labourer,  was  digging  a  hole  in  the  garden  of  a 
house  adjoining  that  of  the  defendant,  T. 
There  was  a  small  wall,  only  three  feet  high, 
between  these  gardens.  This  wall  belonged 
to  the  defendant  T.  The  plaintiff  was  en- 
gaged in  doing  some  work  at  the  bottom  of 
the  hole.  Three  dogs  belonging  to  the  de- 
fendant T.  had  been  taken  out  for  a  walk  by 
another  defendant,  S.,  and  as  he  was  re- 
turning, the  dogs  ran  through  a  gate  into  a 
garden  adjoining  the  one  where  the  plaintiff  was 
at  work.  As  the  dogs  were  running  about  in 
playfulness,  one  of  them,  a  large  Newfoundland, 
jumped  over  the  wall,  and  jumped  or  fell  into 
the  hole  where  the  plaintiff  was  working  at 
the  time  in  a  stooping  posture.  The  dog  fell  on 
the  nape  of  the  plaintiff's  neck,  causing  injuries 
through  which  he  was  confined  to  bed  for  three 
weeks,  and  he  was  unable  to  work  for  some 
time  after.  In  an  action  for  these  injuries 
against  the  defendant  T.  as  the  owner  of  the 
dog,  and  against  the  defendant  S.  as  having  the 
dogs  in  charge: — Held,  that  inasmuch  as  the 
dogs  were  not  shown  to  be  mischievous  to  the 
knowledge  of  the  owner,  the  plaintiff  had  no 
cause  of  action  against  either  of  the  defendants 
either  as  for  a  trespass  or  as  for  anv  breach  of 
duty.  Sanders  v.  Ieaj)e,  61  L.  T.  263  ;  48  J.  P. 
757— D. 

Vainer — Action  by  Mortgagee — Negligence 
and  Misrepresentation.]  —  An  intending  mort- 
gagor, at  the  request  of  the  solicitors  of  an 
intending  mortgagee,  applied  to  a  firm  of 
valuers  for  a  valuation  of  the  property  pro- 
posed to  be  mortgaged.  A  valuation  at  the  som 
of  3,000Z.  was  sent  in  by  the  valuers  direct  to  the 
mortgagee's  solicitors,  and  the  mortgage  was 
subsequently  carried  out.  Default  having  been 
made  in  payment  by  the  mortgagor,  and  a  loss 
having  resulted  to  the  mortgagee,  he  commenced 
an  action  against  the  valuers  for  damages  for 
the  loss  sustained  through  their  negligence,  mis- 
representation, and  breach  of  duty.  The  court 
being  satisfied  on  the  evidence  that  the  defen- 
dants knew  at  the  time  the  valuation  was  made 
that  it  was  for  the  purpose  of  an  advance,  and 
that  the  valuation  as  made  was  in  fact  no  valua- 
tion at  all : — Held,  that,  under  the  circumstances, 
the  defendants  were  liable  on  two  grounds: 
(1),  that  they  (independently  of  contract)  owed 
a  duty  to  the  plaintiff  which  they  had  failed  to 
discharge;  (2),  that  they  had  made  reckless 
statements  on  which  the  plaintiff  had  acted. 
George  v.  Skiving  ton  (5  L.  R.,  Ex.  1),  and  Beaten 
v.  Pender  (11  Q.  B.  D.  503),  followed.  Peek  t. 
Derry  (37  Ch.  D.  541)  discussed.  Can*  v.  WW- 
son,  39  Ch.  D.  39  ;  57  L.  J.,  Ch.  1034  ;  69  L.  T. 
723  ;  37  W.  R.  23— Chitty,  J. 


1801 


NEGLIGENCE— Actions  for  Injuries. 


1802 


Harbour-Master  —  Volunteer.]  —  The  R.f 
which  was  anchored  in  F.  outer  harbour, 
haying  to  be  beached  in  the  inner  harbour,  S., 
the  harbour-master,  directed  the  master  of  the 
R.  where  she  was  to  be  beached.  Before  the  R. 
left  the  outer  harbour  S.  came  on  board,  and 
when  she  arrived  near  the  place  where  she  was 
to  be  beached,  S.  gave  orders  as  to  the  lowering 
of  her  anchor.  The  R.  overran  her  anchor  and 
grounded  on  it  sustaining  damage  : — Held,  that 
8.  was  personally  liable  as  a  volunteer.  The 
Rhmna,  10  P.  D.  24  ;  54  L.  J.,  P.  42  ;  52  L.  T. 
HO ;  33  W.  R.  599  ;  5  Asp.  M.  C.  350— Hannen,  P. 
See  S.  C.  in  C.  A.,  ante,  col.  1297. 

Wharfinger— Jetty  in  Tidal  River— Vesiel  of 
lecessity  Grounding  —  Implied  Representa- 
tion. ] — The  defendants,  who  were  wharfingers, 
agreed  with  the  plaintiff  for  a  consideration  to 
allow  his  vessel  to  discharge  and  load  her  cargo 
at  their  wharf,  which  abutted  upon  the  river 
Thames.  It  was  necessary  in  order  that  the 
vessel  might  be  unloaded  that  she  should  be 
moored  alongside  a  jetty  of  the  defendants 
which  ran  into  the  river,  and  that  she  should 
take  the  ground  with  her  cargo  at  the  ebb 
of  the  tide.  The  vessel  at  the  ebb  of  the  tide 
sustained  injury  from  the  uneven  nature  of  the 
ground.  The  bed  of  the  river  at  the  point  where 
she  took  ground  was  vested  in  the  Conservators, 
and  the  defendants  had  no  control  over  it,  but  it 
was  admitted  that  they  had  taken  no  steps  to 
ascertain  whether  it  was  suitable  for  the  vessel  to 
ground  upon : — Held,  that  there  was  an  implied 
undertaking  by  the  defendants  that  they  had 
taken  reasonable  care  to  ascertain  that  the 
bottom  of  the  river  at  the  jetty  was  not  in  a 
condition  to  cause  danger  to  the  vessel,  and  that 
they  were  liable  for  the  damage  sustained  by 
her.  The  Moorcock,  14  P.  D.  64  ;  60  L.  T.  654  ; 
37  W.  R.  439— C.  A.  Affirming  58  L.  J.,  P.  15— 
Butt,  J. 

Liability  of  Master  to  Servant]— See  Masteb 
AM)  Sbbvant,  I.  2. 

Carrier!  of  Passengers,  Goods  and  Animals.] — 
See  Carries. 

Solicitor  to  Client.]— See  Solicitor,  V.  2. 


in.   ACTIONS    FOR    INJURIES. 
1.  Lord   Campbell's  Act. 

When  Representatives  can  Recover.] — The 
personal  representatives  of  a  deceased  person 
cannot  maintain  an  action  under  Lord  Camp- 
bell's Act  (9  &  10  Vict.  c.  93),  where  the  de- 
ceased if  he  had  survived  would  not  have  been 
entitled  to  recover.  Ilaigh  v.  Royal  Mail  Steam 
PacJtet  Company,  52  L.  J.,  Q.  B.  640 ;  49  L.  T. 
«02 ;  48  J.  P.  230  ;  5  Asp.  M.  C.  189— C.  A.  See 
«fw  cases  ante,  cols.  1289, 1290. 

Jurisdiction  of  Admiralty  Division.]— An  ad- 
miralty action  in  rem  cannot  be  brought  to 
recover  damages  under  Lord  Campbell's  Act  for 
loss  of  life  caused  by  a  collision  at  sea.  The 
Franeonia  (2  P.  D.  163)  overruled.  Seward  v. 
V*  Vera  Cruz,  10  App.  Cas.  59 ;  54  L.  J.,  P.  9  ; 
62  L.  T.  474 ;  33  W.  R.  477 ;  49  J.  P.  324  ;  5 
Asp.  M.  C.  386— H.  L.  (B.). 


Pecuniary  Benefit  to  Plaintiff.]— A  husband 
and  a  wife  quarrelled,  separated,  and  lived  apart 
without  communication  for  eight  years  before 
the  wife's  death,  who  was  killed  at  the  age  of 
fifty-six  through  the  negligence  of  carriers.  The 
wife,  had  she  survived  her  mother,  who  was 
aged  eighty  at  the  time  of  the  wife's  death, 
would  have  been  absolutely  entitled  to  the  sum 
of  7,000/. : — Held,  in  an  action  by  the  husband 
against  the  carriers  for  damages  upon  Lord 
Campbell's  Act,  that  he  had  no  reasonable  pro- 
spect of  pecuniary  benefit  if  his  wife's  death  had 
not  occurred,  and  was  not,  therefore,  entitled  to 
damages  for  her  death.  Harrison  v.  London 
and  Nortli-  Western  Railway,  1  C.  &  E.  540 — 
Lopes,  J. 

Widow  guilty  of  Adultery  during  Husband's 
Lifetime — Forfeiture  of  Right  to  Support.]— At 

the  trial  of  an  action  brought  by  the  plaintiff,  a» 
the  widow  of  the  deceased,  under  the  provisions 
of  Lord  Campbell's  Act  (9  &  10  Vict.  c.  93),  s.  2, 
against  the  defendants  for  negligence  which 
caused  the  deceased's  death,  it  appeared  that  the 
plaintiff  was  at  the  time  of  her  husband's  death, 
and  had  for  many  years  previously  been,  living 
apart  from  him  in  adultery  with  another  man. 
During  the  time  they  were  so  living  apart  the 
deceased  did  not  support  the  plaintiff,  though 
he  occasionally  gave  her  small  sums  of  money  : 
— Held,  that  the  action  was  not  maintainable, 
inasmuch  as  the  plaintiff  had  lost  her  legal  right 
to  support  by  reason  of  her  adultery,  and  bad  no 
reasonable  expectation  of  pecuniary  advantage 
by  the  deceased  remaining  alive  which  could  be 
taken  into  account  by  a  jury.  Stimpson  v.  Woodr 
57  L.  J.,  Q.  B.  484  ;  59  L.  T.  218  ;  36  W.  R.  734  ; 
52  J.  P.  822— D. 

Measure  of  Damages — Policy  of  Insurance.] — 
The  right  conferred  by  Lord  Campbell's  Act,  to 
recover  damages  in  respect  of  death  occasioned 
by  a  wrongful  act,  neglect,  or  default,  is  restricted 
to  the  actual  pecuniary  loss  sustained  by  the 
plaintiff.  Where  the  widow  of  deceased  is  plain- 
tiff, and  her  husband  had  made  provision  for  her 
by  a  policy  on  his  own  life  in  her  favour,  the 
amount  of  such  policy  is  not  to  be  deducted 
from  the  amount  of  damages  previously  assessed 
irrespective  of  such  consideration.  She  is  bene- 
fited only  by  the  accelerated  receipt  of  the 
amount  of  the  policy,  and  that  benefit  being 
represented  by  the  interest  of  the  money  during 
the  period  of  acceleration,  may  be  compensated 
by  deducting  future  premiums  from  the  esti- 
mated future  earnings  of  the  deceased.  Mich* 
v.  Newport,  t$'e.9  Railway  (4  B.  &;  S.  403,  n.) 
approved.  Grand  Trunk  Railway  of  Canada 
v.  Jennings,  13  App.  Cas.  800 ;  58  L.  J.,  P.  C.  1 ; 
59  L.  T.  679  ;  37  W.  R.  403— P.  C. 

Distribution  of  Compensation  Money— Liberty 
to  Persons  interested  to  Appear.] — In  an  action 
under  Lord  Campbell's  Act,  Drought  by  the 
widow  and  administratrix  of  the  deceased,  the 
defendants  paid  a  sum  of  money  into  court 
with  their  defence.  The  plaintiff  admitted  the 
sufficiency  of  the  amount,  and  joined  issue  for 
the  purpose  of  closing  the  pleadings  and  to 
enable  the  rights  of  the  plaintiff  and  all  other 
persons  (if  any)  to  be  determined  pursuant  to  the 
statute.  The  father  of  the  deceased  applied  to 
have  his  name  added  as  a  party  to  the  action, 
for  the  purpose  of  establishing  his  claim  to  part 


1303 


NEGOTIABLE    INSTRUMENTS. 


1304 


of  the  mcney  brought  in.  The  court  declined  to 
add  his  name  as  a  party  to  the  record,  but  gave 
him  liberty  to  appear  at  the  trial  by  counsel  and 
solicitor,  and  to  tender  evidence  as  to  the  amount 
of  his  share  in  the  money  lodged.  Johnston  v. 
Great  Northern  Railway,  20  L.  R.,  Ir.  4 — 
Ex.  D. 

Compromise — Ho  Action  brought.] — A 

sum  of  money  was  received  from  a  railway  com- 
pany by  way  of  compensation  by  the  executors 
of  a  person,  whose  death  had  resulted  from 
injuries  received  in  an  accident  on  the  railway, 
no  action  having  been  brought  under  Lord 
Campbell's  Act  (9  &  10  Vict.  c.  93).  The  exe- 
cutors brought  an  action  in  the  Chancery  Divi- 
sion to  which  all  the  relatives  of  the  deceased 
referred  to  in  s.  2  of  9  &  10  Vict  c.  93,  were 
parties,  asking  for  a  declaration  as  to  the  per- 
sons entitled  to  the  money : — Held,  that  the 
court  could  distribute  the  fund  amongst  such  of 
the  relatives  of  the  deceased  as  suffered  damage 
by  reason  of  the  death,  in  the  same  manner  as  a 
jury  could  have  done  in  an  action  under  the  act. 
Bulmer  v.  Buhner,  25  Ch.  D.  409 ;  53  L.  J.,  Ch. 
402  ;  32  W.  R.  380— Chitty,  J. 


2.  In  other  Cases. 

Two  Causes  of  Action  arising  from  same  Act] 

— See  Em  tut!  en  v.  Humphrey,  ante,  col.  728. 

Damages— Remoteness  of— Mental  Shook.] — 

An  action  will  not  lie  for  negligence  causing 
damage  by  terror  and  occasioning  nervous  or 
mental  shock  unaccompanied  by  "  impact."  The 
plaintiff,  through  the  negligence  of  the  defen- 
dants' servant  in  charge  of  a  railway  crossing, 
was  placed  in  imminent  peril,  and  sustained  a 
mental  shock  causing  personal  injuries.  There 
was  no  "  impact " : — Held,  that  the  damage  was 
too  remote  to  sustain  an  action.  Victorian  Bail- 
tea  y  Commits loners  v.  Coultas,  13  App.  Cas.  222  ; 
57  L.  J.,  P.  C.  69  ;  58  L.  T.  390 ;  37  W.  R.  129  ; 
62  J.  P.  500— P.  C. 


NEGOTIABLE    INSTRU- 
MENTS. 

Bills  of  Exchange,  Cheques,  and  Promissory 
Hotes.]— See  Bills  op  Exchange. 

Bills  of  Lading.] — Sec  Shipping. 

Holder  for  Value.] — Certain  negotiable  secu- 
rities were  stolen  from  the  defendants  by  their 
manager,  and  came  into  the  possession  of  the 
plaintiffs  for  value,  and  without  notice  of  any 
fraud.  Subsequently  the  manager  obtained  the 
securities  from  the  plaintiffs  by  fraud,  and 
restored  them  to  the  defendants,  who  did  not 
know  that  the  securities  had  been  out  of  their 
possession.  A  portion  of  the  restored  securities 
were  not  the  bonds  actually  stolen,  but  bonds 
of  a  like  kind  and  value : — Held,  that  in  the 
absence  of  evidence  to  the  contrary,  it  should 
be  presumed  that  the  defendants  accepted  the 
securities  in  discharge  of  their  manager's  obli- 


gation to  restore  them,  and  were  therefore  boni 
fide  holders  for  value,  and  entitled  to  retain 
them.  London  and  County  Banking  Company 
v.  London  and  River  Plate  Bank,  21  Q.  B.  D. 
635  ;  57  L.  J.,  Q.  B.  601  ;  37  W.  R.  89— C.  A. 
Affirming  on  other  grounds,  20  Q.  B.  D.  232— 
Manisty,  J. 

Deposit  by  Money-lender  of  Customers'  Secu- 
rities.]— See  Sheffield  {Earl)  v.  London  Joint 
Stock  Bank,  ante,  col.  76. 

Post-Office  Order  cashed  through  Bankers.}— 
The  plaintiffs  banked  with  the  defendants.  It 
was  the  duty  of  the  plaintiffs'  secretary  to  pay 
all  moneys  received  by  him  on  behalf  of  the 
plaintiffs  into  the  defendants'  bank  to  the  credit 
of  the  plaintiffs.  The  secretary  without  the 
knowledge  of  the  plaintiffs  kept  an  account  at 
the  defendants'  bank.  He  paid  into  the  defen- 
dants' bank  to  his  own  credit  certain  post-office 
orders  belonging  to  the  plaintiffs  which  the 
defendants  subsequently  cashed.  The  post-office 
regulations  with  regard  to  post-office  orders  pro- 
vide that,  when  presented  for  payment  by  a 
banker,  they  shall  be  payable  without  the  signa- 
ture by  the  payee  of  the  receipt  contained  in  the 
order,  provided  the  name  of  the  banker  present- 
ing the  order  is  written  or  stamped  upon  it  :— 
Held,  that  there  had  been  a  wrongful  conversion 
of  the  post-office  orders  above  mentioned  by  the 
defendants  ;  and  that  the  regulations  of  the 
post-office  with  regard  to  the  payment  of  post- 
office  orders  presented  through  bankers  did  not 
give  to  those  instruments  in  the  hands  of  bankers 
the  character  of  instruments  transferable  to 
bearer  by  delivery  so  as  to  bring  the  case  within 
the  doctrine  of  Goodwin  v.  Bobarts  (1  App.  Cas. 
476),  and  thus  give  the  defendants  a  good  title 
to  the  post-office  orders  independently  of  the 
authority  given  to  the  plaintiffs'  secretarv.  Fine 
Art  Society  v.  Union  Bank,  17  Q.  B.  D.705; 
56  L.  J.,  Q.  B.  70  ;  55  L.  T.  536  ;  35  W.  R.  114 ; 
51  J.  P.  69— C.  A. 

Foreign  Bond — Conflict  of  Laws — Custom  of 
Merchants — Bona  fide  Holder.] — An  instrument 
that  is  negotiable  by  the  law  of  a  foreign  country 
is  not  a  negotiable  instrument  by  the  law  of 
England,  so  as  to  give  a  bond  fide  holder  for 
value  a  good  title  against  an  owner  of  the 
instrument,  from  whom  it  has  been  stolen,  in 
the  absence  of  any  evidence  of  a  custom  of  mer- 
chants in  this  country  to  treat  it  as  negotiable. 
Picker  v.  London  and  County  Banking  Co*' 
pany.  18  Q.B.  D.  515 ;  66  L.  J.,  Q.  B.  299;  35 
W.  R.  469— C.  A. 

The  executors  of  a  holder  of  shares  in  an 
American  railway  company  signed  blank  trans- 
fers indorsed  on  the  share  certificates,  and 
handed  them  to  their  brokers,  in  order  that  the 
shares  might  be  registered  in  the  names  of  the 
executors.  The  brokers  fraudulently  deposited 
the  certificates  with  their  bankers  as  security 
for  advances,  and  afterwards  became  bankrupt 
According  to  American  law  the  holder  of  certifi- 
cates with  transfers  properly  indorsed  has  a  good 
legal  title  to  the  shares  ;  and  according  to  mer- 
cantile usage  in  London,  such  certificates  are 
treated  as  securities  to  bearer.  In  this  case  the 
indorsement  was  not  attested  in  the  manner 
required  by  the  railway  company  for  registra- 
tion :— Held,  that  the  plaintiffs  were  entitled  to 


1805 


NOTICE. 


1806 


i  declaration  that  the  shares  in  question  formed 
part  of  the  testator's  estate,  ana  to  delivery  of 
the  certificates  by  the  bankers.  Williams  v. 
Colonial  Bank,  38  Ch.  D.  388  ;  57  L.  J.,  Ch.  826 ; 
59  L  T.  643;  36  W.  B.  626—0.  A. 


NEWFOUNDLAND. 

See  COLONY. 


NEW    SOUTH    WALES. 


See  COLONY. 


NEWSPAPER. 

to  Bestrain  Use  of  Name.] — See 


TlADK. 

liability  of  Newsvendor  for  Publication  of 
Ub*L]—See  Eminent  v.  Pottle,  ante,  col.  636. 

Criminal  Proceedings  for  libel.]— See  Drfa- 
xatioh. 

Advertisement  for  Evidence.]— See  Contempt 
of  Court. 

Conunants  on    Pending  Action.]— &v    Con- 
tempt op  Court. 


NEW    TRIAL. 

In  Interpleader.]— See  Interpleader. 
In  County  Court.] — See  County  Court. 
In  other  Cases.]— See  Practice. 


NEW    ZEALAND. 

See  COLONY. 


NEXT    FRIEND. 

See  HUSBAND    AND   WIFE  — INFANT 
LUNATIC. 


NOTE. 

Bank  Note.]— See  Banker. 

Promissory  Note.]— See  Bills  of  Exchange. 


NOTICE. 

Of  Action.] — See  Action. 

To  Quit.]— See  Landlord  and  Tenant. 

Of  Incumbrance.] — See  Mortgage. 

Of  Trial]— See  Practice. 

To  Treat.]— See  Lands  Clauses  Act. 

Purchaser  for  Value— Seasonable  Inquiry.] — 
A  purchaser  or  mortgagee  who  takes  his  pur- 
chase or  security  without  investigation  of  title  is 
affected  with  constructive  notice  of  all  that  he 
would  have  discovered  upon  the  usual  investiga- 
tion of  title,  although  not  of  such  matters  as  he 
would  not  have  ascertained  without  going  behind 
the  documents  of  title  themselves.  Gainsborough 
(EarV)  v.  Watcombe  Terra  Cotta  Company,  or 
Dunning  v.  Gainsborough  (Earl),  54  L.  J.,  Ch. 
991 ;  53  L.  T.  116— North,  J. 

Testatrix  appointed  IX  and  three  others 
trustees  and  executors  with  directions  that  her 
residuary  personalty  should  be  converted,  as  soon 
as  convenient,  and  invested,  and  after  a  life 
interest  and  legacies,  bequeathed  the  same  in 
trust  for  the  maintenance,  &c,  of  D.'s  children, 
and  declared  that  the  same  might  be  paid  over 
to  the  parent  or  parents  of  such  children.  The 
ultimate  residue  consisted  of  a  mortgage  of  lease- 
holds for  6,000/.  of  a  character  unfit  for  invest- 
ment or  retention  by  trustees.  Testatrix  died 
in  1874.  In  1878  the  mortgage  was  transferred 
to  D.  and  W.  (the  remaining  trustees)  and  B.  D., 
a  new  trustee,  the  transfer  not  disclosing  any 
trust.  In  1881  D.,  W.,  and  B.  D.  transferred  the 
mortgage  to  D.  alone,  the  transfer  reciting,  con- 
trary to  the  fact,  that  D.  had  paid  off  the  mort- 
gage. By  deed  of  even  date,  reciting  the  trust 
and  that  the  mortgage  had  been  transferred  to 
D.  as  the  residue  bequeathed  for  his  children,  D. 
released  his  co-trustees.  In  1882  D.,  "as  bene- 
ficial owner/'  assigned  the  mortgage  to  the  Earl 
of  G.  to  secure  2,5002.  The  Earl  of  G.  did  not 
examine  D.'s  title,  nor  employ  a  solicitor: — 
Held,  that  under  the  Conveyancing  Act,  1882, 
s.  3,  the  Earl  of  G.  was  entitled  to  priority  over 
the  children  of  D.  as  purchaser  for  value  without 
notice,  as,  although  bound  to  examine  the  title 
of  D.,  or  to  take  the  consequences  of  not  doing 
so,  the  transfer  of  1881  being,  on  the  face  of  it, 
regular,  he  was  not  bound  to  inquire  whether 
the  recital  of  the  payment  of  5,0O0Z.  by  D.  was 
true  in  fact.    lb. 

Constructive  Notice  of  Provisions,  of  Superior 
Grant.] — The  principle  of  Cosset  v.  Collinge 
(3  M.  &  £.  283)  applies  to  the  purchase  of  a 
sub  fee-farm  grant ;  and  the  purchaser  of  such 
an  estate,  if  he  knows  that  he  is  not  purchasing 


1807 


NOTICE. 


1308 


the  fee,  is  bound  to  inquire  as  to  the  provisions 
of  the  superior  grant,  and  if  he  has  had  a  fair 
opportunity  of  ascertaining  them,  will  be  affected 
with  constructive  notice.  Hyde  v.  Warden  (3 
Ex.  D.  72)  distinguished.  Bank  of  Ireland  v. 
Brookfield  Linen  Company,  15  L.  R.,  Ir.  37 — 
V.-C. 

Notice  of  Fraud — Recital — Control  of  opera- 
tive part.] — The  plaintiff,  who  had  lately  become 
entitled  to  a  life  interest,  with  an  ultimate 
remainder  in  fee,  in  a  certain  landed  estate, 
being  about  to  return  to  Australia,  where  he  had 
been  residing,  gave  to  his  solicitors  a  power  of 
attorney  in  which  there  was  a  recital  of  his 
having  become  entitled  to  the  estate,  and  that 
44  whereas  I  am  about  to  return  to  Australia,  and 
am  desirous  of  appointing  attorneys  to  act  for 
me  during  my  absence  from  England,  in  the 
care  and  management  of  the  said  estates,  and  of 
dealing  therewith  either  by  way  of  sale  .... 
mortgage  or  otherwise  ....  and  generally  to 
act  for  me  in  the  management  of  and  dealings 
with  any  property  belonging  to  me,  during  my 
absence  from  England."  The  plaintiff  went 
abroad,  and  during  his  absence  the  solicitors 
borrowed  from  the  defendants  a  sum  of  money 
on  his  behalf,  charging  his  property  with  the 
repayment  of  it.  They  also  on  two  subsequent 
occasions  purported  to  charge  his  property, 
under  this  power,  with  the  repayment  of  ad- 
vances made  by  the  defendants.  On  these  two 
last  occasions  the  plaintiff  was  in  England,  but 
that  was  not  known  to  the  defendants.  The 
loans  were  made  without  the  knowledge  of  the 
plaintiff,  and  the  proceeds  were  misappropriated 
by  the  solicitors,  who  absconded.  While  the 
plaintiff  was  in  England,  being  about  to  return 
to  Australia,  he  gave  the  solicitors  a  new  power. 
This,  after  referring  to  the  former  power,  and 
reciting  that  the  plaintiff  had  been  residing 
in  England  for  a  short  time,  appointed  the 
solicitors  his  attorneys  to  carry  out  a  contractor 
the  sale  of  the  plaintiff's  real  estate,  and'  to 
borrow  certain  sums  of  money  for  him  upon 
mortgage.  The  solicitors,  purporting  to  act 
under  this  power,  borrowed  further  moneys 
from  the  defendants,  charging  the  plaintiff's 
property  with  the  repayment.  These  loans  were 
also  made  without  the  plaintiff  vs  knowledge,  and 
the  proceeds  were  misappropriated  by  the 
solicitors.  The  second  power  was  not  seen  by 
any  of  the  defendants,  or  by  any  of  their  agents 
acquainted  with  the  previous  transactions. 
Neither  was  the  attention  of  any  of  these  persons 
in  any  way  called  to  it.  Neither  did  they,  or 
any  of  their  clerks  engaged  in  this  business, 
know  that  the  plaintiff  had  been  in  England. 
This  power  was  produced  to  the  defendants' 
solicitors,  but  they  had  no  knowledge  of  the 
previous  transactions: — Held,  that  the  defen- 
dants were  not  put  upon  such  inquiry  by  the 
recital  that  the  plaintiff  had  been  residing  in 
England  as  would  make  them  liable  for  not 
having  discovered  the  solicitors'  frauds,  and  con- 
sequently invalidate  the  charge  made  under  the 
second  power.  Danby  v.  Coutts,  29  Ch.  D.  600  ; 
52  L.  T.  401 ;  33  W.  R.  559— Kay,  J. 

To  Company  —  Secretary  —  At  what  Time 
given.] — In  order  that  a  notice  to  a  company 
may  be  effectual,  either  it  must  be  given  to  the 
company  itself  through  its  proper  officers,  or  it 
must  be  received  by  the  company  in  the  course 


of  the  transaction  of  its  business  ;  casual  know- 
ledge acquired  by  the  secretary  as  an  individual 
and  not  whilst  he  is  engaged  in  transacting  the 
business  of  the  company,  cannot  be  deemed 
notice  to  the  company. — In  March,  1881,  M.  de- 
posited with  S.  the  certificates  and  a  blank 
transfer  of  100  shares  in  a  company  as  security 
for  money  advanced.  In  February,  1882,  B. 
died,  and  the  secretary  of  the  company,  who  was 
a  relative  of  S.,  attended  his  funeral,  and  during 
a  discussion  of  the  deceased's  affairs  became  ac- 
quainted with  the  existence  of  the  charge  on  the 
shares.  In  December,  1882,  H.  was  heavily  in 
debt  to  the  plaintiffs,  and  as  they  pressed  him 
for  payment,  he  fraudulently  delivered  to  them 
another  blank  transfer  of  the  same  shares.  Some 
days  afterwards,  the  transfer  to  the  plaintiffs 
was  in  the  absence  of  M.  filled  up  with  the 
name  of  the  plaintiff  C.  as  transferee,  and  with 
the  numbers  of  the  shares.  The  company  re- 
fused to  register  the  transfer  to  the  plaintiffs  on 
the  ground  that  the  certificates  were  not  pro- 
duced, and  thereupon  M.  offered  to  indemnify 
the  'company  against  any  other  claim,  bnt 
shortly  alter  the  executors  of  S.  gave  notice  to 
the  company  of  the  existence  of  the  charge  in 
favour  of  their  testator.  The  company  was 
registered  under  the  Companies  Act,  1862,  and 
one  of  the  articles  of  association  provided 
that  the  shares  should  be  transferred  by  deed, 
and  another  provided  that  the  company  should 
not  be  bound  by  or  recognize  any  equitable 
interest.  In  an  action  by  the  plaintiffs  against 
the  executors  of  S.  to  obtain  a  declaration  of 
their  title  to  the  100  shares  :— Held,  that  the 
knowledge  acquired  by  the  secretary  of  the  com- 
pany at  the  funeral  of  S.  of  the  existence  of  the 
charge  in  his  favour  could  not  be  deemed  notice 
of  its  existence  to  the  company  itself.  Seeiiti 
Qinerale  de  Pari*  v.  Tramways  Union  0»* 
pany,  14  Q.  B.  D.  424  ;  64  L.  J.,  Q.  B.  177 ;  5J 
L.  T.  912— C.  A.  See  S.  C.  in  H.  L.,  ante,coL 
397. 


To  Directors.] —Though  notice  to  the 


directors  of  a  company  is  prima  facie  notice  to 
the  company,  it  is  otherwise  in  a  case  where  it 
is  certain  that  the  directors  would  not  communi- 
cate the  information  to  the  shareholders,  iftr- 
roy  Bessemer  Steel  Company,  In  re,  50  L.  T.  144 ; 

32  W.  R.  475— Kay,  J.   Compromised  on  appeal, 

33  W.  R.  312, 

Constructive  Notice  to  Director.]— A  director 
of  a  company  is  not  bound  to  examine  entries  in 
any  of  the  books  of  the  company ;  and  the  doc- 
trine of  constructive  notice  is  not  to  be  so  ex- 
tended as  to  impute  to  him  a  knowledge  of  the 
contents  of  the  books.  Denham,  In  re,  25 
Ch.  D.  752 ;  60  L.  T.  523 ;  32  W.  R.  487- 
Chitty,  J. 

Unregistered  Will— Principal  and  Agent]— 
A  testatrix,  who  died  in  1871,  by  her  will  devised 
real  estate  in  Middlesex  to  trustees  upon  trust 
for  sale.  The  will  was  not  registered  in  Middle- 
sex. The  heir-at-law  of  the  testatrix  having 
learned  that  the  will  had  not  been  registered, 
mortgaged  the  property  to  different  mortgagees, 
and  registered  the  mortgages.  The  mortgage 
deeds  were  prepared  and  registered  by  the  heir- 
at-law  himself.  The  surviving  trustee  received 
the  rents  of  the  property  down  to  1878,  when  he 
died,  and  in  1879  a  receiver  was  appointed  in  an 


1309 


NUISANCE. 


1310 


action  to  administer  the  estate  of  the  testatrix.  I 
The  property  was  sold  in  1882  under  an  order  of 
the  court,  and  notice  of  the  mortgages  was  then 
given  by  the  mortgagees  to  the  purchasers,  and 
the  purchase-moneys  were  paid  into  court  sub- 
ject to  the  claims  of  the  mortgagees.  The  heir- 
at-law  died  in  1885.  An  application  was  made 
to  transfer  the  purchase-moneys  to  the  account 
of  the  devisees  under  the  will.  The  mortgagees 
resisted  the  application  on  the  ground  that  the 
act  of  7  Anne,  c.  20,  gave  them  a  title,  because 
the  will  had  not  been  registered.  Neither  of  the 
securities  was  for  moneys  advanced,  but  both  for 
old  debts,  and  the  heir-at-law  acted  in  the  mort- 
gage transactions  as  agent  of  both  the  mortga- 
gees :— Held,  that,  if  persons  claiming  under  the 
act  had  notice  of  the  will,  they  could  not  set  up 
the  title  of  the  heir-at-law  ;  that  in  the  present 
case  the  mortgagees  were  affected  by  the  notice 
which  their  agent  the  heir-at-law  possessed ;  and 
that  consequently  their  claims  failed.  Weir, 
In  re,  Hollingworth  v.  Willing,  58  L.  T.  792— 
Chitty,  J. 

Whan  Hotice  to  Solicitors  is  Notice  to  Prin- 
cipal]— A.,  who  was  entitled  under  a  will  to 
share  in  the  proceeds  of  sale  of  real  estate  in 
Middlesex,  devised  on  trust  for  sale,  mortgaged 
his  interest  to  several  persons.  One  set  of 
incumbrancers  registered  their  charge  in  the 
Middlesex  registry,  and  on  that  ground  claimed 
priority  over  the  other  incumbrancers,  who  had 
either  not  registered  their  charges  at  all,  or  had 
registered  them  after  the  applicants  had  regis- 
tered theirs  : — Held,  that  an  interest  of  this 
nature  was  not  within  the  Middlesex  Registration 
Act  (7  Anne,  c.  20),  s.  1,  which  was  intended  to 
apply  to  dealings  with  the  land  itself,  and  con- 
sequently no  priority  could  be  obtained  by  prior 
registration  of  a  charge  upon  it.  The  applicants 
also  claimed  priority  for  their  charge  on  the 
ground  of  notice,  the  alleged  notice  consisting 
of  a  letter  not  from  them  or  their  solicitors,  but 
from  the  solicitors  of  the  plaintiff  in  the  action 
to  the  solicitors  of  the  trustees  of  the  will  under 
which  A.  took,  in  which  the  applicants  were 
mentioned  as  incumbrancers,  and  also  of  a 
correspondence  between  their  solicitors  and  one 
of  the  firm  of  solicitors  acting  for  the  trustees, 
in  which  their  solicitors  mentioned  that  they 
were  instructed  for  mortgagees  of  A.,  but  did 
not  say  who  those  mortgagees  were,  or  give  any 
further  information.  These  statements  appeared 
never  to  have  come  to  the  knowledge  of  the 
trustees  themselves: — Held,  that  the  solicitors 
of  the  trustees  were  not  their  agents  for  receiv- 
ing notice  of  incumbrances,  and  neither  of  the 
so-called  notices  was  such  as  would  give  priority 
to  the  applicants,  or  prevent  a  subsequent  in- 
cumbrancer who  gave  direct  notice  to  the  trus- 
tees from  obtaining  priority  over  them.  Arden 
v.  Arden,  $9  Ch.  D.  702  ;  64  L.  J.,  Ch.  665 ;  62 
L.  T.  610  ;  33  W.  R.  693— Kay,  J. 

In  1881  N.  acted  as  solicitor  in  the  formation 
of  a  limited  company  founded  for  the  purpose  of 
purchasing  the  business  of  H.,  the  price  to  be 
payable  in  fully  paid-up  shares,  and  he  prepared 
the  memorandum  and  articles.  The  shares  were 
allotted  to  H.,  but  the  contract  for  the  sale  of 
the  business  was  not  registered.  Three  months 
later,  upon  the  marriage  of  Dr.  and  Mrs.  F.,  H. 
deposited  with  N.  and  two  other  persons,  the 
trustees  of  the  marriage  settlement,  the  certifi- 
cates for  fully  paid-up   shares   (being   shares 


received  by  H.  for  the  sale  of  his  business)  to 
secure  a  debt  due  to  Mrs.  F.  The  certificates 
stated  that  the  shares  were  fully  paid  up.  In 
1885  the  shares  were  transferred  into  the  names 
of  the  trustees.  The  trustees  had  no  actual 
notice  that  the  shares  held  by  them  were  shares 
paid  to  H.  in  consideration  of  the  sale  of  his 
business.  Upon  an  application  by  the  liquidator 
in  the  winding-up  of  the  company  to  make  the 
trustees  liable  for  calls : — Held,  that  the  onus  of 
proving  notice  against  the  trustees  was  upon  the 
liquidator ;  that  N.  had  not  been  guilty  of  gross 
and  culpable  negligence  in  not  ascertaining  the 
truth  of  the  representation  contained  in  the  cer- 
tificates, and  that  the  trustees  were  not  liable. 
Hall  %  Co.,  In  re,  37  Ch.  D.  712  ;  57  L.  J.,  Ch. 
288  ;  58  L.  T.  156— Stirling,  J. 

The  plaintiffs  effected  with  the  defendant  a 
policy  of  marine  insurance  on  goods  which  in- 
cluded risk  on  craft  and  lighters,  and  was  not 
with  no  recourse  against  lightermen.  At  the 
time  of  effecting  such  policy  the  plaintiffs  had 
an  arrangement  with  one  H.,  by  which  he  was 
to  do  all  the  plaintiffs'  lighterage  on  the  terms 
that  he  was  only  to  be  liable  for  negligence  : — 
Held,  that  the  non-communication  of  this  term 
was  the  concealment  of  a  material  fact,  and  that 
the  mere  disclosure  of  the  existence  of  such  an 
arrangement  to  the  defendant's  solicitor  was  no4* 
notice  of  it  to  the  defendant.  Tate  v.  Hyslov, 
15  Q.  B.  D.  368 ;  54  L.  J.,  Q.  B.  592  ;  53  L.  T 
581 ;  5  Asp.  M.  C.  487— C.  A. 

Effect  of  Conveyancing  Act,  1882,  s.  3.] 


— The  effect  of  s.  3  of  the  Conveyancing  Act, 
1882,  which  provides  that  a  purchaser  shall  not 
be  prejudicially  affected  by  notice  of  any  instru- 
ment, fact,  or  thing,  unless  in  the  same  transac- 
tion it  has  come  to  the  knowledge  of  his  counsel, 
solicitor,  or  agent  "  as  such,"  is  that  a  purchaser 
is  only  to  be  affected  with  notice  of  such  instru- 
ments, &c,  as  have  come  to  the  knowledge  of  the 
agent  as  agent  for  the  purchaser.  Cousins'  Trusts, 
In  re,  31  Ch.  D.  671 ;  55  L.  J.,  Ch.  662  ;  64  L.  T. 
376  ;  34  W.  R.  393— Chitty,  J. 

In  1871  C.  mortgaged  his  share  of  a  trust  fund 
to  B.  In  1873  C.  mortgaged  the  same  share  to 
R.,  repaying  B.  out  of  the  sum  advanced.  In 
1874  R.  transferred  the  mortgage  to  D.  In  1875 
C.  mortgaged  the  same  share  to  P.,  who  had  no 
notice  of  the  prior  mortgage.  In  all  the  trans- 
actions B.,  who  was  solicitor  to  the  trustees  of 
the  fund,  acted  as  solicitor  for  all  parties.  The 
first  notice  to  the  trustees  of  any  assignment  by 
C.  was  of  the  assignment  by  C.  to  P. : — Held, 
that  P.  was  entitled  to  priority  over  D.    lb. 


NUISANCE. 

Obstruction  of  Highway.] — See  Wat. 

Injurious  to  Health.]— See  Health. 

Nuisance  authorised  by  Statute— Power  to 
purchase  by  Agreement  additional  Lands — Cattle 
Traffic] — A  railway  company  were  by  their  act 
authorised  among  other  things  to  carry  cattle, 
and  also  to  purchase  by  agreement  (in  addition 
to  the  lands  which  they  were  empowered  to  pur- 


1811 


NUISANCE. 


1312 


chase  compulsorily)  any  lands  not  exceeding  in 
the  whole  fifty  acres,  in  such  places  as  should  be 
deemed  eligible,  for  the  purpose  of  providing  addi- 
tional stations,  yards,  ana  other  conveniences 
for  receiving,  loading,  or  keeping  any  cattle, 
goods,  or  things  conveyed  or  intended  to  be  con- 
veyed by  the  railway,  or  for  making  convenient 
roads  or  ways  thereto,  or  for  any  other  purposes 
connected  with  the  undertaking  which  the  com- 
pany should  judge  requisite.  The  company  were 
also  empowered  to  sell  such  additional  lands  and 
to  purchase  in  lieu  thereof  other  lands  which 
they  should  deem  more  eligible  for  the  aforesaid 
purposes,  and  so  on  from  time  to  time.  The  act 
contained  no  provision  for  compensation  in  re- 
spect of  lands  so  purchased  by  agreement.  Under 
tnis  power  the  company  some  years  after  the  ex- 
piration of  the  compulsory  powers  bought  land 
adjoining  one  of  their  stations  and  used  it  as  a 
yard  or  dock  for  their  cattle  traffic.  To  the 
occupiers  of  houses  near  the  station  the  noise  of 
the  cattle  and  drovers  was  a  nuisance  which,  but 
for  the  act,  would  have  been  actionable.  There 
was  no  negligence  in  the  mode  in  which  the 
company  conducted  the  business : — Held,  that 
the  purpose  for  which  the  land  was  acquired 
being  expressly  authorised  by  the  act,  and  being 
incidental  and  necessary  to  the  authorised  use  of 
the  railway  for  the  cattle  traffic,  the  company 
were  authorised  to  do  what  they  did,  and  were 
not  bound  to  choose  a  site  more  convenient  to 
other  persons  ;  and  that  the  adjoining  occupiers 
were  not  entitled  to  an  injunction  to  restrain 
the  company.  Metropolitan  Asylum  District 
v.  Hill  (6  App.  Cas.  193)  distinguished.  London, 
Brighton  and  South  Coast  Railway  v.  Truman, 
11  App.  Cas.  45  ;  55  L.  J.,  Ch.  864  ;  54  L.  T. 
260  ;  34  W.  R.  657  ;  50  J.  P.  388— H.  L.  (B.). 

Sufficiency  of  Powers.] — A  public  body 

was  authorised  by  act  of  Parliament  to  construct 
and  maintain  a  system  of  sewers  and  drains,  and 
was  enabled  by  compulsory  purchase  to  obtain 
the  necessary  lands  for  the  erection  of  works  in 
a  specified  spot  for  the  purification  of  the  sewage, 
and  for  the  conveyance  of  the  effluent  sewage- 
water  along  a  specified  course  terminating  in  a 
specified  spot.  The  public  body  was  also  prohi- 
bited from  allowing  the  sewage  to  be  discharged 
into  a  river  until  after  it  had  been  subjected  to 
a  process  of  purification  prescribed  by  the  act  : 
— -Held,  that  so  long  as  the  public  body  com- 
plied with  the  requirements  of  the  act,  they 
were  not  liable  to  an  action  for  a  nuisance  in 
discharging  the  effluent  sewage-water  into  the 
river  at  the  authorized  place.  Lea  Conservancy 
Board  v.  Hertford  (Mayor),  48  J.  P.  628  ;  1  C. 
&  E.  299— Williams,  J. 

Small-pox  Hospital  —  Interlocutory  Injunc- 
tion.]— The  defendants  fitted  up  a  cottage  as  a 
small-pox  hospital.  The  grounds  in  which  the 
cottage  stood  were  bounded  by  a  public  road  on 
one  side,  open  fields  on  two  other  sides,  and  the 
plaintiff's  property  on  the  fourth  side.  The  evi- 
dence being  conflicting,  a  medical  referee  was 
appointed,  who  reported  that  there  was  appre- 
ciable danger  to  persons  dwelling  in  the  plain- 
tiff's houses  : — Held,  that  an  injunction  should 
be  granted.  Bendclow  v.  Wortley  Union,  57 
L.  J.,  Ch.  762  ;  57  L.  T.  849 ;  36  W.  R.  168— 
Stirling,  J. 

Pollution  of  Well — Injunction.] — No  one  has 
a  right  to  use  his  own  land  in  such  a  way  as  to 


be  a  nuisance  to  his  neighbour,  and  therefore  if 
a  man  puts  filth  or  poisonous  matter  on  his  land, 
he  must  take  care  that  it  does  not  escape  so  as  to 
poison  water  which  his  neighbour  has  a  right 
to  use,  although  his  neighbour  may  have  no 
property  in  such  water  at  the  time  it  is  foaled. 
The  plaintiff  and  defendant  were  adjoining  land- 
owners, and  had  each  a  deep  well  on  his  own 
land,  the  plaintiffs  land  being  at  a  lower  level 
than  the  defendant's.  The  defendant  turned 
sewage  from  his  hout e  into  his  well,  and  thus 
polluted  the  water  that  percolated  underground 
from  the  defendant's  to  the  plaintiff's  land,  and 
consequently  the  water  which  came  into  the 
plaintiff's  well  from  such  percolating  water, 
when  he  used  his  well  by  pumping,  came  adul- 
terated with  the  sewage  from  the  defendant's 
well : — Held,  that  the  plaintiff  had  a  right  of 
action  against  the  defendant  for  so  polluting 
the  source  of  supply,  although  until  the  plaintiff 
had  appropriated  it  he  had  no  property  in  the 
percolating  water  under  his  land,  and  although 
he  appropriated  such  water  by  the  artificial 
means  of  pumping.  Ballard  v.  Ibmlinson,  29 
Ch.  D.  115 ;  54  L.  J.,  Ch.  454  ;  62  L.  T.  942 ;  33 
W.  R.  533  ;  49  J.  P.  692— C.  A. 

Pollution  of  Wateroourse  —  Prescription— 
Variation  of  User.]— From  1832  to  1877  the 
refuse  of  a  fellmongery,  and  the  washings  of 
dyes  used  in  a  coloured  rug  manufactory,  had 
been  discharged  into  a  watercourse,  which  was 
an  arterial  drainage  work  within  the  jurisdiction 
of  drainage  commissioners.  In  1878  the  fell- 
mongery was  abandoned,  and  the  manufacture 
of  leather  boards  substituted  at  the  same  factory. 
The  pollution  caused  by  the  discharge  of  the 
refuse  of  the  leather  board  manufactory  was  leas 
in  degree  than  that  caused  by  the  fellmongery. 
The  drainage  commissioners  convicted  the  owners 
of  the  leather  board  factory  under  a  section  of  a 
local  act  of  polluting  the  stream,  and  this  con- 
viction was  affirmed  on  appeal  to  the  Quarter 
Sessions : — Held,  that  the  conviction  must  be 
confirmed,  for  even  if  the  factory-owners  had  a 
prescriptive  right  to  foul  the  stream,  it  was  as 
f  ellmongers,  and  not  as  leather  board  manufac- 
turers ;  and  that  there  was  no  authority  for 
holding  that  the  variation  of  the  user,  although 
it  cast  no  increased,  but  even  a  less  burden  on 
the  servient  tenement,  enabled  the  factory- 
owners  to  substitute  a  business  of  a  totally 
different  kind  to  that  originally  carried  on  by 
them,  and  at  the  same  time  claim  to  maintain 
their  original  prescriptive  right  to  pollute  the 
watercourse,  even  if  such  right  did  exist  Clarke 
v.  Somersetshire  Drainage  Commissumtn,  57 
L.  J.,  M.  C.  96 ;  69  L.  T.  670  ;  36  W.  B.  890 
— D. 


Arising  from  Acts  of  several  Personf— 


Bemedy  against  One.] — Where  several  manufac- 
turers having  their  works  upon  a  stream  canse 
a  nuisance  to  a  riparian  owner  by  discharging 
offensive  matter  into  the  stream,  it  is  no  answer 
to  an  action  brought  by  the  owner  against  one 
of  those  manufacturers  for  such  manufacturer 
to  say  that  the  share  he  contributed  to  the 
nuisance  is  infinitesimal  and  unappretiable. 
The  riparian  owner  is  entitled  to  have  the  water 
in  a  pure  condition,  and  has  a  right  to  take  the 
manufacturers  one  by  one  and  prevent  each  from 
discharging  his  contribution  to  that  which  be- 
comes in  the  aggregate  a  nuisance.    Thorpe  v. 


1313 


OFFICE. 


1314 


Brumfitt  (8  L.  R.,  Ch.  650),  followed.  Blair  v. 
Deakin,  57  L.  T.  522  ;  52  J.  P.  327— Kay,  J. 

Where  an  injury  has  been  done  to  the  private 
rights  of  a  person,  whether  tenant  or  laudlord, 
that  person  is  entitled  to  damages,  although 
only  nominal,  and  where  in  such  a  case  an 
injury  is  apprehended,  an  injunction  will  be 
granted  as  against  the  party  in  default.  In  an 
action  by  N.,  tenant  of  a  certain  farm,  for 
damages,  and  an  injunction  against  T.,  a  sani- 
tary authority,  for  polluting  the  plaintiff's 
stream  : — Held,  that  the  plaintiff's  private  right 
haying  been  injured,  he  was  entitled  to  nominal 
damages,  and  an  injunction  against  T.,  although 
T.  had  only  polluted  the  stream  in  conjunction 
with  others.  Nixon  v.  Tynemvut h  Rural  Sani- 
tary Authority,  52  J.  P.  504— D. 

Injunction   to  Restrain  —  Quia   timet 

Action.] — In  order  to  maintain  a  quia  timet 
action  to  restrain  an  apprehended  injury  the 
plaintiff  must  prove  imminent  danger  of  a  sub- 
stantial kind,  or  that  the  apprehended  injury,  if 
it  does  come,  will  be  irreparable.  Fletcher  v. 
Bealey,  28  Ch.  D.  688  ;  54  L.  J.,  Ch.  424  ;  52 
L.  T.  541 ;  33  W.  R.  745— Pearson,  J. 

The  plaintiff  was  a  manufacturer  of  paper,  his 
mills  being  situate  on  the  bank  of  a  river,  the 
water  of  which  he  used  to  a  large  extent  in  his 
process  of  manufacture,  for  which  it  was  essen- 
tial that  the  water  should  be  very  pure.  The 
defendants,  who  were  alkali  manufacturers,  were 
depositing  on  a  piece  of  land  close  to  the  river, 
and  about  one  mile  and  a  half  higher  up  than 
the  plaintiff's  mill,  a  large  heap  of  refuse  from 
their  works.  It  was  proved  that  in  the  course  of 
a  few  years  a  liquid  of  a  very  noxious  character 
would  flow  from  the  heap,  and  would  continue 
flowing  for  forty  years  or  more,  and  that  if  this 
liquid  should  find  its  way  into  the  river  to  any 
appreciable  extent  the  water  would  be  rendered 
unfit  for  the  plaintiff's  manufacture,  and  his 
trade  would  be  ruined.  The  plaintiff  did  not 
allege  that  he  had  as  yet  sustained  any  actual 
injury.  The  defendants  said  that  they  intended 
to  use  all  proper  precautions  to  prevent  the 
noxious  liquid  from  getting  into  the  river  : — 
Held,  that  it  being  quite  possible  by  the  use  of 
doe  care  to  prevent  the  liquid  from  flowing  into 
the  river,  it  being  also  possible  that,  before  it 
began  to  flow  from  the  heap,  some  method  of 
rendering  it  innocuous  might  have  been  dis- 
covered, the  action  could  not  be  maintained,  and 
must  be  dismissed  with  costs.  But  the  dismissal 
was  expressly  declared  to  be  without  prejudice 
to  the  right  of  the  plaintiff  to  bring  another 
action  hereafter,  in  case  of  actual  injury  or  im- 
minent danger.    lb. 

Erection  of  Urinal  by  Local  Board.] — A 
local  board  is  not  entitled  under  the  powers 
given  it  by  s.  39  of  the  Public  Health  Act,  1875, 
to  erect  a  public  urinal  on  private  property  so 
as  to  be  a  nuisance  to  the  owner.  Such  a  pro- 
ceeding is  not  a  matter  for  compensation  under 
s.  308,  and  will  be  restrained  by  injunction,  nor 
need  notice  of  the  action  for  an  injunction  be 
given  under  s.  264.  Sellors  v.  Matlock  Bath 
Local  Board,  14  Q.  B.  D.  928 ;  52  L.  T.  762— 
Denman,  J. 

Ofentoeking  Land  with  Game.]- See  Game. 


NULLITY. 

See  HUSBAND  AND  WIFE,  L  5. 


OATH. 


Parliamentary  Oath.]— See  Parliament. 
Evidence.]— See  Evidence  (Affidavit). 


OBSCENITY. 

See  CRIMINAL  LAW,  II.  21. 


OFFICE. 

Compensation  for  Abolition  of  Offioe.]— The 
Metropolitan  Bridges  Act,  1877,  provided  that 
compensation  should  be  paid  to  certain  officers, 
including  clerks,  but  not  including  solicitors,  of 
the  private  companies  or  corporations  whose 
bridges  were  taken  over  by  the  Metropolitan 
Board  of  Works  under  the  act,  upon  a  scale  to 
be  calculated  on  the  basis  of  the  emoluments 
actually  received  by  them  in  the  two  years  pre- 
vious to  the  passing  of  the  act.  The  Deptford 
Creek  Bridge  was  taken  over  by  the  board,  and 
thereby  the  plaintiff,  who  had  been  clerk  to  the 
Deptford  Creek  Bridge  Company,  lost  his  office. 
He  had  received  a  salary  as  clerk,  and  also  pay- 
ments for  legal  business  done  by  him  as  solicitor 
for  the  company,  and  commission  on  the  rents  of 
the  company's  property  which  he  received.  The 
Deptford  Creek  Bridge  Company  had  by  their 
act  power  to  appoint  a  solicitor  and  receiver  as 
well  as  a  clerk  ;  they  had  never  appointed  such 
officers,  and  the  legal  business  of  the  company 
had  always  been  done  and  the  rents  received  by 
the  clerk,  who  had  alwayB  been  a  solicitor  : — 
Held,  that,  by  the  practice  of  the  company,  these 
duties  had  been  attached  to  the  office  of  clerk,  and 
that  the  plaintiff  was  entitled  to  compensation  in 
respect  of  the  payments  received  for  discharging 
them  as  part  of  the  emoluments  of  his  office ;  but, 
as  to  the  payments  for  legal  business  done  by  him, 
only  in  respect  of  his  proportion  as  partner  in  the 
firm  of  solicitors  of  the  net  profits  after  deduct- 
ing all  office  expenses  necessarily  incurred  in 
earning  the  money.  Brew  v.  Metropolitan 
Board  of  Works,  50  L.  T.  138— C.  A. 


Offioer  of  Prison.] — See  Prisons. 


OFFICIAL  REFEREE. 

See  ARBITRATION,  II.  2. 

U  U 


1811 


NUISANCE. 


1312 


chase  compulsorily)  any  lands  not  exceeding  in 
the  whole  fifty  acres,  in  such  places  as  should  be 
deemed  eligible,  for  the  purpose  of  providing  addi- 
tional stations,  yards,  ana  other  conveniences 
for  receiving,  loading,  or  keeping  any  cattle, 
goods,  or  things  conveyed  or  intended  to  be  con- 
veyed by  the  railway,  or  for  making  convenient 
roads  or  ways  thereto,  or  for  any  other  purposes 
connected  with  the  undertaking  which  the  com- 
pany should  judge  requisite.  The  company  were 
also  empowered  to  sell  such  additional  lands  and 
to  purchase  in  lieu  thereof  other  lands  which 
they  should  deem  more  eligible  for  the  aforesaid 
purposes,  and  so  on  from  time  to  time.  The  act 
contained  no  provision  for  compensation  in  re- 
spect of  lands  so  purchased  by  agreement.  Under 
tnis  power  the  company  some  years  after  the  ex- 
piration of  the  compulsory  powers  bought  land 
adjoining  one  of  their  stations  and  used  it  as  a 
yard  or  dock  for  their  cattle  traffic.  To  the 
occupiers  of  houses  near  the  station  the  noise  of 
the  cattle  and  drovers  was  a  nuisance  which,  but 
for  the  act,  would  have  been  actionable.  There 
was  no  negligence  in  the  mode  in  which  the 
company  conducted  the  business : — Held,  that 
the  purpose  for  which  the  land  was  acquired 
being  expressly  authorised  by  the  act,  and  being 
incidental  and  necessary  to  the  authorised  use  of 
the  railway  for  the  cattle  traffic,  the  company 
were  authorised  to  do  what  they  did,  and  were 
not  bound  to  choose  a  site  more  convenient  to 
other  persons  ;  and  that  the  adjoining  occupiers 
were  not  entitled  to  an  injunction  to  restrain 
the  company.  Metropolitan  Asylum  District 
v.  Hill  (6  App.  Cas.  193)  distinguished.  London, 
Brighton  ana  South  Coast  Railway  v.  Truman, 
11  App.  Cas.  45  ;  65  L.  J.,  Ch.  854  ;  54  L.  T. 
250  ;  34  W.  K.  657  ;  50  J.  P.  388— H.  L.  (B.). 

Sufficiency  of  Powers.] — A  public  body 

was  authorised  by  act  of  Parliament  to  construct 
and  maintain  a  system  of  sewers  and  drains,  and 
was  enabled  by  compulsory  purchase  to  obtain 
the  necessary  lands  for  the  erection  of  works  in 
a  specified  spot  for  the  purification  of  the  sewage, 
and  for  the  conveyance  of  the  effluent  sewage- 
water  along  a  specified  course  terminating  in  a 
specified  spot.  The  public  body  was  also  prohi- 
bited from  allowing  the  sewage  "to  be  discharged 
into  a  river  until  after  it  had  been  subjected  to 
a  process  of  purification  prescribed  by  the  act : 
— Held,  that  so  long  as  the  public  body  com- 
plied with  the  requirements  of  the  act,  they 
were  not  liable  to  an  action  for  a  nuisance  in 
discharging  the  effluent  sewage-water  into  the 
river  at  the  authorized  place.  Lea  Conservancy 
Board  v.  Hertford  (Mayor),  48  J.  P.  628  ;  1  C. 
&  E.  299— Williams,  J. 

Small-pox  Hospital  —  Interlocutory  Injunc- 
tion.]— The  defendants  fitted  up  a  cottage  as  a 
small-pox  hospital.  The  grounds  in  which  the 
cottage  stood  were  bounded  by  a  public  road  on 
one  side,  open  fields  on  two  other  sides,  and  the 
plaintiff's  property  on  the  fourth  side.  The  evi- 
dence being  conflicting,  a  medical  referee  was 
appointed,  who  reported  that  there  was  appre- 
ciable danger  to  persons  dwelling  in  the  plain- 
tiff's houses : — Held,  that  an  injunction  should 
be  granted.  Bendelow  v.  Wortley  Union,  57 
L.  J.,  Ch.  762  ;  67  L.  T.  849 ;  36  W.  K.  168— 
Stirling,  J. 

Pollution  of  Well — Injunction.] — No  one  has 
a  right  to  use  his  own  land  in  such  a  way  as  to 


be  a  nuisance  to  his  neighbour,  and  therefore  if 
a  man  puts  filth  or  poisonous  matter  on  his  land, 
he  must  take  care  that  it  does  not  escape  so  as  to 
poison  water  which  his  neighbour  has  a  right 
to  use,  although  his  neighbour  may  have  no 
property  in  such  water  at  the  time  it  is  fooled. 
The  plaintiff  and  defendant  were  adjoining  land- 
owners, and  had  each  a  deep  well  on  his  own 
land,  the  plaintiff's  land  being  at  a  lower  level 
than  the  defendant's.  The  defendant  tamed 
sewage  from  his  house  into  his  well,  and  thus 
polluted  the  water  that  percolated  underground 
from  the  defendant's  to  the  plaintiff's  land,  and 
consequently  the  water  which  came  into  the 
plaintiff's  well  from  such  percolating  water, 
when  he  used  his  well  by  pumping,  came  adul- 
terated with  the  sewage  from  the  defendant's 
well : — Held,  that  the  plaintiff  had  a  right  of 
action  against  the  defendant  for  so  polluting 
the  source  of  supply,  although  until  the  plaintiff 
had  appropriated  it  he  had  no  property  in  the 
percolating  water  under  his  land,  and  although 
he  appropriated  such  water  by  the  artificial 
means  of  pumping.  Ballard  v.  Tomlinson,  29 
Ch.  D.  115  ;  54  L.  J.,  Ch.  454  ;  52  L.  T.  942 ;  83 
W.  R.  533  ;  49  J.  P.  692— C.  A. 

Pollution  of  Watercourse  —  Prescription— 
Variation  of  TJser.]— From  1832  to  1877  the 
refuse  of  a  fellmongery,  and  the  washings  of 
dyes  used  in  a  coloured  rug  manufactory,  had 
been  discharged  into  a  watercourse,  which  was 
an  arterial  drainage  work  within  the  jurisdiction 
of  drainage  commissioners.  In  1878  the  fell- 
mongery was  abandoned,  and  the  manufacture 
of  leather  boards  substituted  at  the  same  factory. 
The  pollution  caused  by  the  discharge  of  the 
refuse  of  the  leather  board  manufactory  was  less 
in  degree  than  that  caused  by  the  fellmongery. 
The  drainage  commissioners  convicted  the  owners 
of  the  leather  board  factory  under  a  section  of  a 
local  act  of  polluting  the  stream,  and  this  con- 
viction  was  affirmed  on  appeal  to  the  Quarter 
Sessions : — Held,  that  the  conviction  must  be 
confirmed,  for  even  if  the  factory-owners  had  a 
prescriptive  right  to  foul  the  stream,  it  was  as 
fellmongers,  and  not  as  leather  board  manufac- 
turers ;  and  that  there  was  no  authority  for 
holding  that  the  variation  of  the  user,  although 
it  cast  no  increased,  but  even  a  less  burden  on 
the  servient  tenement,  enabled  the  factory- 
owners  to  substitute  a  business  of  a  totally 
different  kind  to  that  originally  carried  on  by 
them,  and  at  the  same  time  claim  to  maintain 
their  original  prescriptive  right  to  pollute  the 
watercourse,  even  if  such  right  did  exist  Clarke 
v.  Somersetshire  Drainage  Commissioners,  57 
L.  J.,  M.  C.  96  ;  59  L.  T.  670 ;  36  W.  B.  890 
— D. 


Arising  from  Acts  of  several  Person— 


Remedy  against  One.] — Where  several  manufac- 
turers having  their  works  upon  a  stream  cause 
a  nuisance  to  a  riparian  owner  by  discharging 
offensive  matter  into  the  stream,  it  is  no  answer 
to  an  action  brought  by  the  owner  against  one 
of  those  manufacturers  for  such  manufacturer 
to  say  that  the  share  he  contributed  to  the 
nuisance  is  infinitesimal  and  unappreciable. 
The  riparian  owner  is  entitled  to  have  the  water 
in  a  pure  condition,  and  has  a  right  to  take  the 
manufacturers  one  by  one  and  prevent  each  from 
discharging  his  contribution  to  that  which  be- 
comes in  the  aggregate  a  nuisance.    Thorpe  v. 


1818 


OFFICE. 


1314 


Brumfitt  (8  L.  R.,  Ch.  650),  followed.    Blair  v. 
Deakin,  57  L.  T.  522  ;  52  J.  P.  327— Kay,  J. 

Where  an  injury  has  been  done  to  the  private 
rights  of  a  person,  whether  tenant  or  laudlord, 
that  person  is  entitled  to  damages,  although 
only  nominal,  and  where  in  such  a  case  an 
injury  is  apprehended,  an  injunction  will  be 
granted  as  against  the  party  in  default.  In  an 
action  by  N.,  tenant  of  a  certain  farm,  for 
damages,  and  an  injunction  against  T.,  a  sani- 
tary authority,  for  polluting  the  plaintiff's 
stream  :— Held,  that  the  plaintiff's  private  right 
having  been  injured,  he  was  entitled  to  nominal 
damages,  and  an  injunction  against  T.,  although 
T.  had  only  polluted  the  stream  in  conjunction 
with  others.  Nixon  v.  Tynemovth  Mural  Sani- 
tary Authority,  52  J.  P.  504— D. 

—  Injunction  to  Restrain  —  Quia  timet 
Action.] — In  order  to  maintain  a  quia  timet 
action  to  restrain  an  apprehended  injury  the 
plaintiff  must  prove  imminent  danger  of  a  sub- 
stantial kind,  or  that  the  apprehended  injury,  if 
it  does  come,  will  be  irreparable.  Fletcher  v. 
Btaley,  28  Ch.  D.  688  ;  54  L.  J.,  Ch.  424  ;  52 
L.  T.  541 ;  33  W.  R.  745—  Pearson,  J. 

The  plaintiff  was  a  manufacturer  of  paper,  his 
mills  being  situate  on  the  bank  of  a  river,  the 
water  of  which  he  used  to  a  large  extent  in  his 
process  of  manufacture,  for  which  it  was  essen- 
tial that  the  water  should  be  very  pure.  The 
defendants,  who  were  alkali  manufacturers,  were 
depositing  on  a  piece  of  land  close  to  the  river, 
and  about  one  mile  and  a  half  higher  up  than 
the  plaintiff's  mill,  a  large  heap  of  refuse  from 
their  works.  It  was  proved  that  in  the  course  of 
a  few  years  a  liquid  of  a  very  noxious  character 
would  flow  from  the  heap,  and  would  continue 
flowing  for  forty  years  or  more,  and  that  if  this 
liquid  should  find  its  way  into  the  river  to  any 
appreciable  extent  the  water  would  be  rendered 
unfit  for  the  plaintiff's  manufacture,  and  his 
trade  would  be  ruined.  The  plaintiff  did  not 
allege  that  he  had  as  yet  sustained  any  actual 
injury.  The  defendants  said  that  they  intended 
to  use  all  proper  precautions  to  prevent  the 
noxious  liquid  from  getting  into  the  river  : — 
Held,  that  it  being  quite  possible  by  the  use  of 
doe  care  to  prevent  the  liquid  from  flowing  into 
the  river,  it  being  also  possible  that,  before  it 
began  to  flow  from  the  heap,  some  method  of 
rendering  it  innocuous  might  have  been  dis- 
covered, the  action  could  not  be  maintained,  and 
must  be  dismissed  with  costs.  But  the  dismissal 
was  expressly  declared  to  be  without  prejudice 
to  the  right  of  the  plaintiff  to  bring  another 
action  hereafter,  in  case  of  actual  injury  or  im- 
minent danger.    lb. 

Erection  of  Urinal  by  Local  Board.] — A 
local  board  is  not  entitled  under  the  powers 
given  it  by  s.  39  of  the  Public  Health  Act,  1875, 
to  erect  a  public  urinal  on  private  property  so 
as  to  be  a  nuisance  to  the  owner.  Such  a  pro- 
ceeding is  not  a  matter  for  compensation  under 
8. 308,  and  will  be  restrained  by  injunction,  nor 
need  notice  of  the  action  for  an  injunction  be 
given  under  s.  264.  Sellort  v.  Matlock  Bath 
Local  Board,  14  Q.  B.  D.  928 ;  52  L.  T.  762— 
Denman,  J. 

Owstoeking  Land  with  Game.]—  See  Game. 


NULLITY. 

See  HUSBAND  AND  WIFE,  I.  5. 


OATH. 


Parliamentary  Oath.]— See  Parliament. 
Evidence.  ]— See  Evidence  (Affidavit). 


OBSCENITY. 

See  CRIMINAL  LAW,  II.  21. 


OFFICE. 

Compensation  for  Abolition  of  Office.]— The 
Metropolitan  Bridges  Act,  1877,  provided  that 
compensation  should  be  paid  to  certain  officers, 
including  clerks,  but  not  including  solicitors,  of 
the  private  companies  or  corporations  whose 
bridges  were  taken  over  by  the  Metropolitan 
Board  of  Works  under  the  act,  upon  a  scale  to 
be  calculated  on  the  basis  of  the  emoluments 
actually  received  by  them  in  the  two  years  pre- 
vious to  the  passing  of  the  act.  The  Deptford 
Creek  Bridge  was  taken  over  by  the  board,  and 
thereby  the  plaintiff,  who  had  been  clerk  to  the 
Deptford  Creek  Bridge  Company,  lost  his  office. 
He  had  received  a  salary  as  clerk,  and  also  pay- 
ments for  legal  business  done  by  him  as  solicitor 
for  the  company,  and  commission  on  the  rents  of 
the  company's  property  which  he  received.  The 
Deptford  Creek  Bridge  Company  had  by  their 
act  power  to  appoint  a  solicitor  and  receiver  as 
well  as  a  clerk  ;  they  had  never  appointed  such 
officers,  and  the  legal  business  of  the  company 
had  always  been  done  and  the  rents  received  by 
the  clerk,  who  had  always  been  a  solicitor  : — 
Held,  that,  by  the  practice  of  the  company,  these 
duties  had  been  attached  to  the  office  of  clerk,  and 
that  the  plaintiff  was  entitled  to  compensation  in 
respect  of  the  payments  received  for  discharging 
them  as  part  of  the  emoluments  of  his  office ;  but, 
as  to  the  payments  for  legal  business  done  by  him, 
only  in  respect  of  his  proportion  as  partner  in  the 
firm  of  solicitors  of  the  net  profits  after  deduct- 
ing ail  office  expenses  necessarily  incurred  in 
earning  the  money.  Brew  v.  Metropolitan 
Boar  A  of  Works,  50  L.  T.  138—  C.  A. 


Officer  of  Prison.] — See  Prisons. 


OFFICIAL  REFEREE. 


See  ARBITRATION,  II.  2. 


U  U 


1815 


PAELIAMENT. 


1816 


ORDERS. 

See  PRACTICE. 


OVERSEER. 

See  POOB  LAW. 


PALATINE  COURT. 

See  COURT. 


PARLIAMENT. 

1.  Privilege— Internal  Regulation. 

2.  Promoting  and  Opposing  Bills. 

3.  Parliamentary  Deposits. 

1.  Privilege — Internal  Regulation. 

Privilege  —  Disobedience  to  Order  under 
Debtors  Act]— Parliamentary  privilege  has  no 
application  to  a  case  in  which  a  person  is  liable 
to  imprisonment  within  s.  4  of  the  Debtors  Act, 
1869,  as  a  person  in  a  fiduciary  capacity.  Gent, 
In  re,  Gent-Davis  v.  HarrU,  40  Ch.  D.  190 ;  58 
L.  J.,  Ch.  162  ;  60  L.  T.  355  ;  37  W.  R.  151— 
North,  J. 

Action  for  Words  spoken  in  Parliament.] 

— See  Dillon  v.  Balfour,  ante,  coL  633. 

Divorce  Bills— Practice  on.  '[—See  Husband 
and  Wife,  III.  10. 

House  of  Commons— Internal  Regulation  of 
its  own  Procedure— Jurisdiction  of  Courts  of 
Law.]— The  House  of  Commous  is  not  subject  to 
the  control  of  Her  Majesty's  Courts  in  its  ad- 
ministration of  that. part  of  the  statute-law 
which  has  relation  to  its  internal  procedure 
only.  What  is  said  or  done  within  its  walls 
cannot  be  inquired  into  in  a  court  of  law.  Brad- 
laugh  v.  Gossett,  12  Q.  B.  D.  271 ;  53  L.  J.,  Q.  B. 
209  ;  53  L.  T.  620  ;  32  W.  R.  552— D. 

A  resolution  of  the  House  of  Commons  cannot 
change  the  law  of  the  land.  But  a  court  of  law 
has  no  right  to  inquire  into  the  propriety  of  a 
resolution  of  the  House  restraining  a  member 
from  doing  within  the  walls  of  the  House  itself 
something  which,  by  the  general  law  of  the  land, 
he  had  a  right  to  do,  viz.,  take  the  oath  prescribed 
by  the  Parliamentary  Oaths  Act,  1869  C32  &  33 
Vict.  c.  68).    lb.  v 

An  action  will  not  lie  against  the  Serjeant-at- 
Arms  of  the  House  of  Commons  for  excluding  a 


member  from  the  House  hi  obedience  to  a  reso- 
lution of  the  House  directing  him  to  do  bo  ;  nor 
will  the  court  grant  an  injunction  to  restrain  that 
officer  from  using  necessary  force  to  carry  out  the 
order  of  the  House.  The  plaintiff,  haying  been 
returned  as  member  for  the  borough  of  N.,  re- 
quired the  Speaker  of  the  House  of  Commons  to 
call  him  to  the  table  for  the  purpose  of  taking 
the  oath  required  by  32  &  33  Vict  c  68.  In 
consequence  of  something  which  had  transpired 
on  a  former  occasion  the  Speaker  declined  to  do 
so  ;  and  the  House,  upon  motion,  resolved  "that 
the  Serjeant-at-Arms  do  exclude  Mr.  B.  (the 
plaintiff)  from  the  House  until  he  shall  engage 
not  further  to  disturb  the  proceedings  of  the 
House."  In  an  action  against  the  Serjeant-at- 
Arms  praying  for  an  injunction  to  restrain  him 
from  carrying  out  this  resolution : — Held,  that 
this  being  a  matter  relating  to  the  internal  man- 
agement of  the  procedure  of  the  House  of  Com- 
mons, the  Court  of  Queen's  Bench  had  no  power 
to  interfere.  Burdett  v.  Abbott  (14  East,  148), 
and  Stockdale  v.  Hansard  (9  Ad.  &  £.  1),  com- 
mented upon  and  approved.    lb. 

Oath— When  and  how  to  be  taken— Perm 
not  believing  in  Supreme  Being.]— A  person 
who  does  not  believe  in  a  Supreme  Being,  and  is 
one  upon  whose  conscience  an  oath,  as  an  oath, 
has  no  binding  force,  is  wholly  incapable  of 
taking  the  oath  prescribed  by  the  Parliamentary 
Oaths  Act,  1866,  as  amended  by  the  Promissory 
Oaths  Act,  1868.  The  oath  required  to  be  taken 
by  s.  1  of  the  act  of  1866,  as  amended  by  the  act 
of  1868,  is  to  be  taken  by  a  member  not  once 
only  in  the  same  parliament,  but  every  time  a 
member  after  being  elected  and  returned  takes 
his  seat.  Under  s.  3  of  the  act  of  1866,  the  oath 
must  be  taken  and  subscribed  by  a  member  with 
all  the  due  solemnities  used  in  parliament,  but 
so  as  no  debate  or  business  be  interrupted  by 
such  member.  Any  member  who  takes  his  seat 
without  taking  the  oath  within'  the  TPp^fag  of 
the  act  is  liable  to  the  penalties  imposed  by  the 
act,  even  though  the  House  of  Commons  itself 
were  not  only  not  to  refuse  him  leave  to  be 
sworn,  but  were  actually  to  pass  a  resolution  per- 
mitting him  to  be  sworn.  Attorney- General  t. 
Bradlavgh,  14  Q.  B.  D.  667 ;  54  L.  J.,  Q.  B.  305 ; 
52  L.  T.  589  ;  33  W.  R.  673  ;  49  J.  P.  500— C.  A 
Affirming  1  C.  &  E.  440— Coleridge,  C.  J.,  Grow, 
J.,  and  Huddleston,  B. 

Information    by  Attorney-General  for 

Penalties— Evidence.] — Statements  and  avowals 
of  a  defendant  as  to  his  belief  in  a  Supreme 
Being,  and  as  to  whether  an  oath  has  any  bind- 
ing effect  upon  his  conscience,  are  admissible  in 
the  trial  at  bar  of  an  action  for  penalties 
under  the  Parliamentary  Oaths  Act,  1866,  even 
though  such  statements  or  avowals  were  made 
before  he  was  elected  a  member  of  the  parlia- 
ment in  which  he  sat  and  voted.  Evidence  of 
the  usages  and  practice  of  the  House  is  also 
admissible  to  explain  the  meaning  of  the  act  and 
standing  orders  of  the  House  with  regard  to 
making  and  subscribing  the  oath.    lb. 

Hew  Trial— Appeal]— Where  an  informa- 
tion to  recover  penalties  under  the  Parliamentary 
Oaths  Act,  1866,  has  been  tried  at  bar,  a  motion 
for  a  new  trial  must  not  be  made  ex  parte,  but 
upon  notice  of  motion  to  the  other  side.  Such  a 
proceeding  is  not  a  criminal  cause  or  matter 


r 


1817 


PARLIAMENT. 


1818 


within  s.  47  of  the  Judicature  Act,  1873,  so  as  to 
preclude  a  defendant  from  appealing  to  the 
Court  of  Appeal  from  the  judgment  of  the  High 
Court  at  bar.    lb. 


2.  Promoting  and  Opposing  Bills. 

Sanction  of  Court— Committee  of  Bondholders 
— Leave  to  promote  Bill  on  behalf  of  whole 

Body.] — In  an  action  by  some  mortgage  bond- 
holders on  behalf  of  the  whole  body,  against  a 
body  of  trustees,  for  the  purpose  of  realising 
their  security,  a  receiver  was  appointed  and  put 
in  possession  of  the  mortgaged  property.  The 
defendants  promoted  a  bill  in  parliament,  the 
effect  of  which,  if  it  became  law,  would  be  to 
alter  the  contract  between  them  and  the  bond- 
holders. Leave  was  then  obtained  from  the 
court  for  a  committee  appointed  at  a  meeting  of 
the  bondholders  to.  oppose  the  bill,  the  costs  of 
the  opposition  to  be  paid  out  of  the  money  in 
the  hands  of  the  receiver.  It  being  found  neces- 
sary to  put  the  amendments  proposed  in  the 
form  of  a  bill,  the  court  gave  leave  to  a  repre- 
sentative committee  of  the  bondholders  to  pro- 
mote a  bill,  and  ordered  the  costs  to  be  paid  out 
of  the  property  of  the  bondholders  comprised  in 
the  mortgage.  On  appeal,  the  court  expressed 
doubts  as  to  the  jurisdiction  to  make  the  order 
appealed  from,  but,  by  consent,  made  an  order 
by  which  they  discharged  the  order  of  the  court 
below,  and,  without  saying  anything  in  sanction 
of  the  proposed  bill,  gave  liberty  to  the  repre- 
sentative committee  to  promote  a  bill  carrying 
into  effect  certain  terms,  the  costs  of  promoting 
the  bill  and  of  the  application  in  both  courts  to 
be  reserved.  Buckingham  v.  Whitehaven  Trus- 
tees, 55  L.  T.  694 — C.  A. 

Expenses  of  Promoting  Bill— Sural  Sanitary 
Authority.] — A  rural  sanitary  authority  has  no 
power  to  charge  the  rates  with  the  expenses  of 
promoting  a  bill  in  Parliament.  Cleverton  v. 
St.  German's  Union,  56  L.  J.,  Q.  B.  83 — Stephen, 
J. 

Opposing  Bill— Allowance  by  Auditor  out  of 
Poor  Kate.]  —  The  overseers  of  a  parish  are 
entitled  to  defray  out  of  the  poor  rate  such 
reasonable  and  moderate  expenses  as  have  been 
incurred  by  them  at  the  request  of  the  vestry  in 
resisting  an  attempt  by  private  individuals  to 
impose  an  extra  burden  on  the  poor  rate  by 
means  of  a  bill  in  Parliament  proposing  to  give 
power  to  charge  the  poor  rate  with  the  payment 
of  interest  on  the  share  capital  of  the  under- 
taking. Reg.  v.  Sibly,  Beg.  v.  White,  14  Q.  B. 
D.  358  ;  54  L.  J.,  M.  C.  23  ;  52  L.T.  116  ;  33  W. 
R.  248 ;  49  J.  P.  294— C.  A. 

Taxations  Opposition — Costs — Summary  Pro- 
cedure to  enforce  Payment]  —  Under  the  pro- 
visions of  the  Act  28  &  29  Vict,  c  27,  for  the 
summary  recovery  by  an  action  of  debt  of  the 
costs  of  vexatious  opposition  to  a  bill  in  parlia- 
ment, the  plaintiff  on  filing  the  documents  men- 
tioned in  s.  5  of  the  Act,  is,  unless  the  defendant 
has  obtained  leave  from  the  court  to  deliver  a 
defence  to  the  action,  entitled  as  a  matter  of 
right  to  sign  judgment  for  the  amount  certified 
by  the  parliamentary  taxing  officer  to  be  due  to 
him,  but  the  defendant  can,  after  judgment  is 
signed,  move  to  set  it  aside,  on  the  ground  that 
the  parliamentary  committee,  which  reported 


that  the  opposition  to  the  bill  was  vexations 
had  no  jurisdiction  in  the  particular  case.  The 
defendant  cannot  deliver  a  defence  to  the  action 
without  the  leave  of  the  court.  Semble  (Lopes, 
L.  J.,  doubting),  that  leave  to  deliver  a  defence 
on  the  ground  that  the  committee  had  no  juris- 
diction may  be  given  before  judgment  is  signed. 
The  defendants  to  such  an  action  having,  with- 
out first  obtaining  the  leave  of  the  court,  de- 
livered a  defence  denying  the  jurisdiction  of  the 
parliamentary  committee  : — Held,  that  judg- 
ment must  be  signed  for  the  amount  claimed, 
but  that  it  would  still  be  open  to  the  defendants 
to  move  to  set  aside  the  judgment.  Mallet  v. 
HarOey,  18  Q.  B.  D.  303  ;  56  L.  J.,  Q.  B.  136  ; 
57  L.  T.  913 ;  35  W.  B.  201  ;  51  J.  P.  692— 
C.  A. 

Since  the  Judicature  Act  a  statement  of  claim 
is  to  be  used  by  the  plaintiff  in  place  of  the  de- 
claration referred  to  in  s.  5  of  the  act    lb. 


Petitioner  to  pay  Costs— Against  whom 


Order  may  be  made.] — A  bill,  promoted  by  the 
plaintiff,  being  before  a  parliamentary  com- 
mittee, a  petition  was  presented  against  it  in 
the  name  and  under  the  seal  of  a  company  of 
which  the  defendants  were  directors.  The  com- 
mittee reported  that  the  promoter  had  been 
vexatiously  subjected  to  expense  on  the  pro- 
motion of  the  bill  by  the  opposition  of  the 
defendants,  petitioners  against  the  bill,  and  that 
the  promoter  was  entitled  to  recover  a  portion 
of  his  costs  from  the  defendants.  The  bill  of 
costs  was  accordingly  taxed,  and  a  certificate 
obtained  under  28  &  29  Vict.  c.  27,  and  the 
plaintiff  commenced  an  action  and  signed  judg- 
ment for  the  certified  amount.  On  an  applica* 
tion  to  set  aside  the  judgment  and  for  leave  to 
defend  : — Held  (Lord  Esher,  M.B.,  dissenting), 
that  the  defendants  not  being  the  actual  pe- 
titioners, the  order  on  them  to  pay  costs  was 
made  without  jurisdiction,  and  could  not  be 
enforced.  Mallet  v.  Hanley,  18  Q.  B.  D.  787 ; 
56  L.  J.,  Q.  B.  384  ;  57  L.  T.  913 ;  35  W.  B. 
601— C.  A. 


3.  Parliamentary  Deposits. 

Application  of  —  Abandonment  —  Diminu- 
tion of  Value  of  Land.]  —  A  railway  company 
being  about  to  apply  for  an  act  of  parliament 
for  making  an  extension  line,  assented  to  F.,  an 
owner  of  land  over  which  the  line  was  intended 
to  pass,  commencing  the  line  over  his  own  land. 
F.  accordingly  made  an  embankment  over  his 
land,  and  was  paid  for  the  work  by  the  company. 
After  a  considerable  part  of  the  work  on  F.'s 
land  had  been  done,  the  company  obtained 
their  act  giving  power  to  construct  the  railway 
in  the  proposed  line.  The  act  contained  a  pro- 
viso that  if  the  new  line  were  not  opened  for 
traffic  within  five  years  the  parliamentary  de- 
posit should  be  applied  towards  compensating 
landowners  or  other  persons  whose  land  had 
been  interfered  with  or  rendered  less  valuable 
"  by  the  commencement,  construction,  or  aban- 
donment of  the  railway."  The  extension  rail- 
way was  not  completed  within  five  years,  but  no 
warrant  of  abandonment  was  obtained  under 
the  Railways  Abandonment  Act.  A  fresh  Act 
was  passed,  authorising  a  petition  for  winding 
up  the  company  and  the  sale  of  the  undertaking 
by  the  official  liquidator.     A  petition  having 

u  u  2 


1819 


PARTITION. 


1320 


been  presented  by  F.'s  mortgagees  and  the 
trustee  in  his  liquidation  for  the  application  of 
the  parliamentary  deposit  in  compensation  for 
the  injury  done  to  his  estate  by  the  commence- 
ment, construction,  or  abandonment  of  the 
works : — Held,  that  the  undertaking  was  aban- 
doned within  the  meaning  of  the  act ;  that  the 
words  "  commencement,  construction,  or  aban- 
donment," must  be  read  disjunctively  ;  that  F., 
having  commenced  the  works  on  his  own  land 
before  the  company  had  obtained  their  act,  on 
the  speculation  that  they  would  obtain  power 
to  construct  the  railway,  the  petitioners  had  no 
claim  for  compensation  for  injury  to  the  estate 
by  the  commencement  or  construction  of  the 
railway  ;  but  they  had  a  claim  for  compensation 
for  injury  done  by  the  abandonment  of  the 
railway.  Potteries,  Shrewsbury,  and  North 
Wales  Company,  In  re,  25  Ch.  D.  251  ;  53  L.  J., 
Ch.  556  ;  50  L.  T.  104  ;  32  W.  R.  300— C.  A. 

Whether  the  words  "commencement  of  the 
railway"  must  be  confined  to  its  commence- 
ment by  the  company  under  its  parliamentary 
powers,  or  would  include  its  commencement  in 
anticipation  of  such  powers,  quaere.    lb. 


Collateral  Obligation— Covenant  to  build 


Station — Covenant  to  pat  up  Fences.] — Where 
the  act  incorporating  a  railway  company  con- 
tains a  clause  in  the  usual  form,  that  in  case  of 
the  abandonment  of  the  railway  the  parlia- 
mentary deposit  shall  be  applicable  towards 
compensating  any  landowners  whose  property 
may  have  been  interfered  with  or  rendered  less 
valuable  by  the  commencement,  construction,  or 
abandonment  of  the  railway,  a  landowner  can, 
as  a  general  rule,  only  claim  compensation  on 
account  of  acts  done  or  omitted  to  be  done  by 
the  company  under  their  statutory  powers,  and 
not  on  account  of  any  collateral  obligation 
entered  into  by  the  company : — But  held  (dis- 
sentiente  Lopes,  L.J.),  that  where  a  company  has 
entered  into  a  collateral  obligation  of  such  a 
nature  that  the  breach  of  the  obligation  is  neces- 
sarily involved  in  the  abandonment  of  the  rail- 
way and  undistinguishable  from  it,  such  as  a 
covenant  to  build  a  station,  the  breach  of  such 
obligation  may  be  taken  into  account  in  assessing 
the  diminution  of  value  of  the  land.  A  covenant 
to  put  up  fences  on  the  land  taken  by  the  com- 
pany is  not  such  an  obligation  as  could  form  the 
subject  of  a  claim  for  compensation  out  of  the 
deposit.  Ruthin  Railway,  In  re,  Hughes'  Trus- 
tees, Hz  parte,  32  Ch.  D.  438  ;  56  L.  J.,  Ch.  30  ; 
55  L.  T.  237  ;  34  W.  R.  581— C.  A. 

Who  entitled  to  Compensation — Measure  of 
Damages.] — Mortgagees  of  a  landowner  may  be 
persons  entitled  to  claim  compensation  under 
the  Railways  Abandonment  Act : — The  measure 
of  injury  must  be  determined  by  comparing  the 
value  of  the  estate  immediately  before  with 
its  value  immediately  after  the  abandonment. 
Potteries,  Shrewsbury,  and  North  Wales  Com- 
pany, In  re,  supra. 


Claims  of  Promoters  and  Parliamentary 


Agents.] — Under  the  usual  provision,  in  an  act 
incorporating  a  railway  company,  that  in  the 
event  of  the  undertaking  being  abortive  the 
parliamentary  deposit  shall  either  be  forfeited 
to  the  Crown,  or,  in  the  discretion  of  the  court, 
be  wholly  or  in  part  applied,  as  part  of  the  assets 
of  the  company,  for  the  benefit  of  the  creditors 


thereof,  the  court  will  not  apply  the  deposit  for 
the  benefit  of  all  the  creditors  without  distinction 
as  to  the  nature  and  merit  of  their  claims ;  and 
accordingly  the  promoters  and  the  parliamentary 
agents  claiming  in  respect  of  costs  incurred  in 
obtaining  the  act,  or  in  relation  to  the  promotion 
of  the  company,  not  being  meritorious  creditors, 
will  not  be  admitted  to  share  in  the  distribution 
of  the  fund.  Birmingham  and  Lichfield  Junction 
Railway,  In  re,  28  Ch.  D.  652  ;  54  L.  J..  Ch. 
580  ;  52  L.  T.  729  ;  33  W.  R.  517— Chitty,  J. 

The  promoter  of  a  railway  company  raised  the 
moneys  requisite  for  the  parliamentary  deposit 
by  obtaining  an  advance  from  a  bank  upon  their 
personal  security ;  and  it  was  arranged  by  the 
promoters  and  the  provisional  committee  of  the 
company,  as  appeared  by  a  minute,  that  the  in- 
terest payable  upon  foot  of  the  advance  would 
be  provided  and  paid  by  the  company.  The 
railway  was  afterwards  abandoned,  and  an  order 
to  wind  up  the  company  having  been  made  :— 
Held,  that  a  claim  by  the  promoters  for  interest 
paid  on  foot  of  the  advance  should  be  disallowed. 
JSnnis  and  West  Clare  Railway,  In  re,  15  L.  R., 
Ir.  180— V.-C. 


PAROL  EVIDENCE. 


See  EVIDENCE. 


PARSON. 

See  ECCLESIASTICAL  LAW. 


PARTICULARS. 

Of  Sale.]—  See  Vendor  and  Purchaser. 
In  Patent  Cases.]— See  Patent. 
In  other  Cases.] — See  Practice. 


PARTIES. 

See  PRACTICE. 


PARTITION. 

Bale  instead  of  Partition— Jurisdiction— JHi- 
oretion  of  Court.] — The  circumstances  stated  in 
s.  3  of  the  Partition  Act,  1868,  when  they  exist, 
give  the  court  jurisdiction  to  direct  a  sale  instead 
of  partition;  but  even  when  the  jurisdiction 
exists,  the  judge  has  a  discretion  with  which  the 


1821 


PARTITION. 


1822 


Court  of  Appeal  will  not  ordinarily  interfere. 
Where  it  does  not  appear  that  a  decision  cannot 
reasonably  be  made,  a  sale  should  not  be  directed 
in  the  absence  of  other  circumstances  to  give 
the  jurisdiction.  Dyer,  In  re,  Dyer  v.  Paynter, 
54  L.  J.,  Ch.  1133  ;  53  L.  T.  744  ;  33  W.  R.  806 
-C.A. 

The  Partition  Act,  1876  (39  &  40  Vict.  c.  17), 
sl  6,  allowing  a  sale  to  be  ordered  in  lieu  of  parti- 
tion on  the  request  of  infants,  only  applies  to 
cases  within  the  Partition  Act,  1868,  8.  3,  which 
latter  section  confines  the  jurisdiction  of  the  court 
to  actions  in  which,  before  its  passing,  a  de- 
cree for  partition  might  have  been  made.  No 
such  decree  could  have  been  made  where  the 
real  estate  in  question  was  liable  to  be  divided 
in  an  unascertaiDed  number  of  shares ;  conse- 
quently no  order  for  sale  of  real  estate  could  be 
made  under  the  act  in  a  case  in  which  it  was 
decided  that  any  children  of  a  living  person 
who  might  be  born  would  be  entitled  to  share 
equally  with  those  born  during  the  lifetime  of  a 
tenant  for  life.  Where  real  estate  consisted  of 
agricultural  property  in  Norfolk,  the  court  re- 
fused to  order  the  estate  to  be  sold  under  Rules 
of  Court,  1883,  Ord.  LI.  r.  1,  for  the  purpose  of 
paying  the  costs  of  the  action,  in  which  a  de- 
claration of  the  rights  of  the  persons  entitled 
had  been  obtained,  and  a  receiver  appointed 
against  their  father,  who  had  previously  been  in 
possession  and  refused  to  account,  but  directed 
the  receiver  to  apply  any  funds  in  his  hands, 
after  keeping  down  incumbrances,  in  payment 
of  the  costs.  Miles  v.  Jarvis,  50  L.  T.  48 — 
Kay,  J. 

"  Good  Reason  to  the  Contrary  "—Arti- 
ficial Depreciation  of  Land.] — It  is  not  "  good 
reason  to  the  contrary  "  against  a  sale  instead  of 
partition,  under  the  4th  section  of  the  Partition 
Act,  1868,  that  owing  to  agrarian  agitation  the 
value  of  land  is  depreciated,  and  that  conse- 
quently the  interest  on  the  purchase-money  of 
the  lands  proposed  to  be  sold  would  be  but  fifty 
per  cent,  of  the  amount  of  the  rents  payable 
thereout,  tp  the  alleged  injury  of  the  parties 
showing  cause.  WhitwelTs  Estate,  In  re,  19 
L.  R.,  fr.  45 — Monroe,  J. 

Application  for  Sale  by  Owner  of  less  than 
half  of  Property — Discretion.] — Upon  an  appli- 
cation for  a  sale  of  property  held  by  tenants  in 
common,  made  by  the  owner  of  less  than  a 
moiety  under  s.  5  of  the  Partition  Act,  1868, 
the  court  has  a  discretion,  and  is  not  bound  to 
order  a  sale,  even  if  none  of  the  other  persons 
interested  will  undertake  to  purchase  the  appli- 
cant's share.  The  onus  is  on  the  applicant 
under  s.  5  to  show  some  good  reason  for  ordering 
a  sale  of  the  property.  Richardson  v.  Peary, 
39  Ch.  D.  45  ;  57  L.  J.,  Ch.  1049  ;  59  L.  T.  165  ; 
36  W.  IL  807— North,  J. 


Parties— Person  of  Unsound  Mind  not  so 
maud— Nest  Friend.] — A  partition  action  may 
be  brought  by  a  person  of  unsound  mind,  not  so 
found,  by  a  next  friend.  Half  hide  v.  Robinson, 
(9  L.  R.,  Ch.  373)  distinguished.  Where,  there- 
fore, an  action  for  sale  under  the  Partition  Acts 
was  brought  by  two  tenants  in  common,  one  of 
whom  being  stated  to  be  of  weak  mind,  sued  by 
the  other  as  his  next  friend,  the  court  being;  of 
opinion  that  an  action  in  this  form  being  prima 
facie  for  his  benefit  could  be  maintained,  re- 


fused to  strike  out  his  name  as  co-plaintiff  ;  but 
intimated  an  opinion  that,  at  the  trial,  his  re- 
quest for  sale  by  his  next  friend,  assuming  that 
the  next  friend  could  effectually  make  a  re- 
quest, could  not  be  acted  upon  in  the  same  way 
as  a  request  by  a  person  not  under  disability, 
without  the  court  being  satisfied  that  the  sale 
would  be  for  his  benefit.  Porter  v.  Porter,  37 
Ch.  D.  420  ;  58  L.  T.  688  ;  36  W.  R.  580— C.  A. 

Sale  out  of  Court — Form  of  Order.] — In  a  sale 
out  of  court  three  things  are  required — that  the 
reserved  bid  should  be  fixed  by  the  chief  clerk, 
that  the  auctioneer's  remuneration  should  be 
similarly  fixed,  and  that  the  purchase-money 
should  be  paid  directly  into  court.  Pitt  v. 
White,  57  L.  T.  650— Kay,  J.  And  see  Stedman, 
In  re,  infra. 

Some   Parties  not  sui  juris.] — Where 


some  of  the  parties  beneficially  interested  are 
not  sui  juris,  and  the  trustees  have  no  power  of 
sale  under  the  trust  deed,  there  is  no  jurisdiction 
under  the  Partition  Act,  1868,  s.  8,  to  order  a 
sale  out  of  court.  Strugnell  v.  Strugnell,  27 
Ch.  D.  258  ;  53  L.  J.,  Ch.  1167  ;  51  L.  T.  512  ; 
33  W.  R.  30— Chitty,  J. 

Evidence — Persons  interested.] — On  an 


action  for  the  partition  or  sale  of  real  estate 
coming  on  for  hearing  as  a  short  cause,  counsel 
for  the  plaintiff  asked  for  the  usual  judgment 
directing  an  inquiry  as  to  the  persons  interested, 
and  whether  they  were  parties  to  the  action,  and 
if  it  should  be  certified  that  all  persons  interested 
were  parties,  then  directing  a  sale  : — Held,  that 
in  these  cases  the  shortest  and  least  expensive 
way  was  to  prove  the  title  in  court  in  the  first 
instance  ;  strict  evidence  was  not  necessary,  but 
it  would  be  sufficient  if  there  was  an  affidavit  by 
a  competent  person.  The  case  having  stood  over, 
such  an  affidavit  was  produced,  and  the  court 
being  satisfied  that  all  persons  interested  were 
parties  to  the  action,  and  desired  a  sale,  an  order 
was  made  for  sale  out  of  court,  with  the  usual 
directions  as  to  fixing  the  reserved  price,  and 
the  auctioneer's  remuneration,  and  as  to  pay- 
ment of  the  deposit  and  the  rest  of  the  purchase- 
money  into  court.  Stedman,  In  re,  Coombe  v. 
Vincent,  58  L.  T.  709— Kay,  J. 

Decree  when  granted— Power  of  Sale.]— A 
decree  for  the  partition  of  property  can  be 
granted  notwithstanding  the  existence  of  a 
power  given  to  trustees  to  sell  the  property 
for  the  purpose  of  a  division.  Boyd  v.  Allen, 
24  Ch.  D.  622  ;  53  L.  J.,  Ch,  701  ;  48  L.  T.  628  ; 
31  W.  R.  544— Fry,  J. 

Judgment,  dispensing  with  Service  of  Notice 
of— Distribution  of  Fund — Advertisements.] — 
Having  regard  to  sub-s.  3  of  s.  4  of  the  Par- 
tition Act,  1876  (&),  the  court  has  no  jurisdiction 
under  s.  35  of  Ord.  LV.  of  the  Rules  of  Court, 
1883,  to  dispense  with  service  of  notice  of  the 
judgment  in  a  partition  action  except  on  the 
imperative  terms  of  publishing  advertisements. 
Where,  therefore,  service  of  notice  of  the  judg- 
ment had  been  dispensed  with,  but  no  advertise- 
ments had  been  published,  the  court,  upon  the 
hearing  of  the  action  on  further  consideration, 
postponed  distribution  of  the  estate  for  six 
months,  and  directed  proper  advertisements  to 
be  published  in  the  meantime.  Phillips  v. 
Andrews,  66  L.  T.  108  ;  35  W.  R.  266— Kay,  J. 


1323 


PARTNERSHIP—  What  Constitutes— BovUPs  Act. 


1324 


Bale  by  Court—Order  to  Pay  Over— Subse- 
quent Lunacy  of  Beneficiary.] — On  the  21st 
May,  1879,  P.  N.  died  intestate,  leaving  M.  H.  P. 
one  of  four  co-heiresses-at-law.  On  18th  Feb- 
ruary, 1880,  an  action  was  brought  asking  for  sale 
of  P.  N.'s  real  estate  in  lieu  of  partition.  On 
the  15th  June,  1880,  an  order  was  made  for  sale. 
The  sale  took  place  on  the  30th  August,  1880, 
and  the  proceeds  of  sale  were  carried  to  the 
credit  of  the  action,  "  proceeds  of  the  sale  of  the 
testator's  real  estate."  On  the  22nd  April,  1882, 
by  the  order  on  further  consideration  in  the  said 
action,  one-fourth  part  of  the  money  standing  to 
that  account  was  ordered  to  be  paid  to  M.  H.  P., 
subject  to  duty.  M.  H.  P.  left  the  money  in 
court,  and  took  no  steps  concerning  it.  On  the 
14th  January,  1 884,  by  an  order  made  on  a  petition 
presented  in  lunacy,  T.  was  authorised  to  apply 
to  the  Chancery  Livision  for  a  transfer  of  the 
said  one-fourth  amounting  to  434Z.  17*.  9d.  to  the 
account  of  M.  H.  P.,  a  person  of  unsound  mind, 
"  proceeds  of  the  sale  or  the  real  estate  of  P.  N.," 
and  the  transfer  was  made  accordingly.  M.  H.  P. 
died  on  the  10th  June,  1884  :— Held,  that  there 
being  no  evidence  that  M.  H.  P.  was  of  unsound 
mind  at  the  date  of  the  sale  and  the  order  for 
payment  to  her,  the  fund  then  ordered  to  be  paid 
to  her  belonged  to  her  absolutely  without  any 
trust  or  equity  for  re-conversion,  and  went  on 
her  death  to  her  personal  representatives. 
Piekard,  In  re,  Turner  v.  Nicholson,  53  L.  T. 
293— Pearson.  J. 


PARTNERSHIP. 

L  What  Constitutes— Bovill's  Act,  1323. 

11.  Rights  and  Liabilities  of  Partners 
and  Third  Parties. 

1.  Generally,  1325. 

2.  Actions,  1330. 

IIL  Rights  and  Liabilities  of  Partners 
between  Themselves. 

1.  Generally,  1332. 

2.  Jurisdiction  of  Courts  over,  1337. 


1.    WHAT  CONSTITUTES— BOVILL'S  ACT. 

Joint  Adventure — Equitable  Contribution  in 
Eespeet  of  Default  in  Payment  of  a  Loss  by  one 
of  Contracting  Parties.] — By  agreement  between 
the  plaintiffs,  the  defendants,  and  Messrs.  L.  B.  & 
Co.,  a  cargo  of  Califomian  wheat  was  to  be 
shipped  for  their  joint  account  by  the  corre- 
spondents of  L.  B.  &  Co.,  at  San  Francisco,  con- 
signed to  the  plaintiffs  at  Liverpool  for  sale 
upon  certain  special  terms  ;  the  shippers  to  re- 
imburse themselves  for  cost  and  insurance  of  the 
cargo  by  drafts  on  the  plaintiffs  at  sixty  days' 
sight  to  the  extent  of  45#.  per  quarter,  less 
freight,  and  for  the  balance  of  invoice,  amount 
by  separate  drafts  at  sixty  davs'  sight  upon  each 
of  the  above  parties  for  one-third  of  the  excess. 
The  cargo  was  shipped,  and  a  bill  was  drawn  by 
the  San  Francisco  house  for  29,3531. 18*.  Id.,  on 
account  of  the  invoice  price  of  the  wheat,  less 
freight,  upon  the  plaintiffs,  and  was  duly  ac- 
cepted and  paid  by  them,  together  with  freight, 


insurance,  and  other  charges  in  respect  of  the 
cargo  ;  and  the  wheat  on  arrival  was  sold  by  the 
plaintiffs  at  a  loss.  In  December,  1883,  L.  B.  fc 
Co.  became  insolvent,  and  compounded  with 
their  creditors  for  30  per  cent,  of  their  liabilities, 
which  composition  the  plaintiffs  received,  leaving 
an  unpaid  balance  of  1,760/.  10*.  9rf.  due  from 
that  firm  for  their  share  of  the  loss  on  the  ad- 
venture : — Held,  that  the  purchase  and  shipment 
of  the  wheat  was  a  joint  adventure,  each  of  the 
three  firms  to  participate  equally  in  the  profit 
or  loss ;  and  that  the  defendants,  according  to 
the  rule  of  equity,  which,  since  the  Judicature 
Act,  1873,  is  to  prevail,  were  liable  to  contribute 
equally  with  the  plaintiffs  to  make  good  the  de- 
fault of  L.  B.  &  Co.  Lowe  v.  Dixon,  16  Q.  B.  D. 
455  ;  34  W.  R.  441— Lopes,  J. 

Sharing  Profits  and  Losses.] — An  agreement 
to  share  profits  and  losses  is  not,  at  any  rate  as 
between  the  parties  to  the  agreement,  oonciufliTe 
as  to  their  being  partners  ;  the  question  of  part- 
nership depends  on  the  intention  of  the  parties 
as  shown  by  the  agreement.  Patosey  v.  Armstronf 
(18  Ch.  D.  690)  observed  upon.  Walker  v.  Hirtek, 
27  Ch.  D.  460)  ;  54  L.  J.,  Ch.  316  ;  51  L.  T.  681 ; 
32  W.  R.  992— C.  A.  See  also  London  FinancUl 
Association  v.  Kelk,  ante,  col.  401. 

Advance  of  Money — Share  of  Profits— BovflTi 
Act]— W.,  a  licensed  victualler,  lent  500J.  to  B., 
a  tailor,  to  set  him  up  in  business  as  a  tailor, 
upon  the  teims  that  W.  was  to  recall  the  600/., 
with  interest  at  five  per  cent.,  at  forty-eight 
hours'  notice ;  that  until  the  principal  sum  and 
interest  were  paid  off,  he  was  to  receive  half  the 
net  profits  of  the  business,  after  allowing  B.  4/. 
a  week  for  his  services ;  that  B.  should  not  dispose 
of  the  stock-in-trade,  or  engage  in  any  other 
business,  but  should  devote  the  whole  of  his  time 
to  this  business,  should  render  proper  accounts 
at  certain  dates,  and  give  W.  every  facility  for 
examining  them,  and  should  pay  the  costs  of  aor 
accountant  paid  by  W.  on  that  behalf :— Held, 
that  the  agreement  which  embodied  these  terms 
constituted  a  partnership  between  W.  and  B. ;  and 
that  W.  was  not  protected  by  Bovill's  Act  (38  Jt 
29  Vict.  c.  86)  against  liability  for  the  debts  in- 
curred in  the  business.  Frowde  v.  WUlwns, 
56  L.  J.,  Q.  B.  62  ;  56  L.  T.  441— D. 

Participation  in  profits,  although  strong  evi* 
dence,  is  not  conclusive  evidence  of  a  partner- 
ship. The  question  of  partnership  must  he 
decided  by  the  intention  of  the  parties  to  he 
ascertained  from  the  contents  of  the  written 
instruments,  if  any,  and  the  conduct  of  the 
parties.  The  plaintiff  advanced  money  to  a 
contractor  to  enable  him  to  carry  out  a  contract 
with  a  railway  company  for  the  construction  of 
a  railway,  and  the  parties  executed  a  deed  by 
which  the  contractor  assigned  to  the  plaintiff  aU 
his  machinery,  plant,  &c,  and  all  shares  and 
debentures  he  might  receive  from  the  company 
to  secure  the  repayment  of  the  loan.  The  deed 
contained  the  following  provisions :— (1)  That 
the  plaintiff  should  receive  ten  per  cent,  interest 
on  the  money  advanced,  and  ten  per  cent,  of  the 
net  profits  of  the  contract ;  (2)  that  the  con- 
tractor should  apply  all  the  moneys  advanced  in 
carrying  on  the  works ;  (3)  that  if  the  contractor 
should  become  bankrupt  the  plaintiff  might 
enter  and  complete  the  works ;  (4)  that  the 
plaintiff  might  sell  the  property  in  cue  of 
default,  but  that  he  should  not  sell  the  shares  or 


1825 


PARTNERSHIP— Partners  and  Third  Parties. 


1826 


debentures  within  twelve  months  after  the  com- 
pletion of  the  contract ;  (5)  that  in  calculating 
the  net  profits  the  contractor  should  be  allowed 
to  draw  out  1,000/.  a  year  for  his  services.  Letters 
pirned  between  the  plaintiff  and  the  contractor 
in  which  the  money  advanced  was  spoken  of  as 
"  capital "  and  "  working  capital "  and  expres- 
sions were  used  showing  that  both  parties  had  a 
common  interest  in  the  works  : — Held,  that  the 
stipulations  in  the  deed  and  the  expressions  in 
the  correspondence  were  all  consistent  with  the 
object  of  securing  repayment  of  the  money 
advanced,  and  were  not  sufficient  evidence  of  a 
partnership  between  the  parties.  Badeley  v. 
Consolidated  Bank,  38  Ch.  D.  233  ;  57  L.  J.,  Ch. 
468;  69  L.  T.  419  ;  36  W.  R.  746— C.  A. 

lovilTi  Aet— Action  to  enforce  Security.]— 
An  action  to  enforce  a  security  given  by  a  trader 
who  has  become  bankrupt  is  not  an  action  to 
leeorer  principal,  profits,  or  interest  within  the 
6th  section  of  BovilTs  Act,  and  may,  therefore, 
be  maintained  by  a  person  entitled  to  receive  a 
■hare  of  the  profits  of  a  trader,  although  the 
other  creditors  of  the  trader  have  not  been 
satisfied.    lb. 

Substitution  of  Mow  Agreement] — In 

September,  1882,  a  loan  was  made  to  a  trader 
on  his  bond,  the  agreement  in  writing  being 
that  the  lender  should  receive  interest  at  52. 
per  cent,  and  one-half  of  the  profits  of  the 
DoainesB  of  the  trader  for  three  years ;  be  in- 
structed in  the  business ;  and  at  the  end  of  that 
time  the  lender  had  an  option  to  be  admitted  a 
partner.  In  October,  1883,  the  agreement  of 
1882  was  cancelled,  and  another  entered  into 
that  the  lender  should  receive  202.  a  month  as 
interest  on  the  loan  in  lieu  of  the  former  interest 
and  share  of  profits.  The  borrower  became  in- 
•olrent  in  1886,  and  executed  a  deed  of  trust  for 
the  benefit  of  hie  creditors  : — Held,  that  the  claim 
of  the  lender  came  within  the  provisions  of  ss. 
1  and  5  of  the  Partnership  Law  Amendment 
(Bovill's)  Act,  28  &  29  Vict.  c.  86,  and  must  be 
postponed  until  the  debts  of  the  other  creditors 
had  been  satisfied.  Stone's  Trust*,  In  re,  33 
Ch.  D.  541 ;  66  L.  J.,  Ch.  795 ;  55  L.  T.  256  ;  35 
W.  R.  64— Kay,  J. 


II.    RIGHTS    AND   LIABILITIES    OF 
PARTNERS   AND    THIRD    PARTIES. 

1.  Generally. 

Bights  on  Bill  endorsed  by  Partner.] — No 
action  will  lie  by  a  firm  as  indorsees  of  a  bill  of 
exchange  against  their  indorsers  if  a  member 
of  the  plaintiff  firm  be  one  of  the  indorsers. 
FotUr  v.  Ward,  1  C.  *  E.  168— Williams,  J. 


BiU  Drawn  against  Firm— Acceptance  by  one 
Partatr-^Joint  or  separate  Liability .]— A  bill  of 
exchange  was  drawn  against  a  firm  of  B.  &  Co. 
B.,  one  of  the  partners,  accepted  the  bill,  signing 
the  name  of  the  firm  "  B.  &  Co.,"  and  adding  his 
own  underneath.  B.  died,  and  the  holder  of  the 
bill  took  out  an  originating  summons  for  the 
administration  of  B.'s  estate,  on  which  an  order 
was  made  tor  the  administration  of  the  estate, 
'fafeingiMifripg  the  separate  from  the  partnership 
debts:— Held,  that  the  acceptance  of  the  bill 
was  the  acceptance  of  the  firm,  and  that  the 


addition  of  B.'s  name  did  not  make  him  sepa- 
rately liable.  And,  it  having  been  proved  that 
B.'s  estate  was  insufficient  for  the  payment  of 
his  separate  debts,  and  therefore  that  no  part 
would  be  available  for  payment  of  the  partner- 
ship debts,  the  summons  was  dismissed.  Whether 
a  joint  creditor  of  a  partnership  firm  can  take 
out  an  originating  summons  for  the  administra- 
tion of  the  estate  of  the  deceased  partner,  quaere. 
Barnard,  In  re,  Edwards  v.  Barnard,  32  Ch.  D. 
447  ;  55  L.  J.,  Ch.  935  ;  55  L.  T.  40  ;  34  W.  B. 
782—C.  A. 

Partner  Assigning  "his  Share11 — Share  of 
Firm  passing.] — Where  by  a  memorandum  of 
agreement  between  M.,  the  plaintiffs,  and  three 
other  firms,  M.  agreed  to  surrender  to  the  plain- 
tiffs "  his  share  "  in  a  certain  mortgage  held  by 
him  as  trustee : — Held,  that  under  the  circum- 
stances of  the  case  the  share  of  M.'s  firm  therein 
passed,  and  not  merely  his  own  individual  share 
as  between  himself  and  his  partner.  Marshal 
v.  Maclure,  10  App.  Cas.  325— P.  C. 

Mortgage  of  Share — Bight  of  Mortgagee  to 
Aocount.]— When  a  partner  mortgages  his  share 
in  the  partnership  and  the  mortgagee  brings  an 
action  to  realise  nis  mortgage,  the  proper  order 
is  to  direct  an  account  of  what  the  mortgagor's 
interest  in  the  partnership  was  at  the  date  when 
the  mortgagee  proceeded  to  take  possession  under 
his  mortgage,  i.e.,  at  the  date  of  the  writ ;  but  if 
a  dissolution  of  the  partnership  has  previously 
taken  place,  the  date  of  the  dissolution  is  the 
date  at  which  the  account  is  to  be  taken. 
Wketham  v.  Davey,  30  Ch.  D.  574  ;  53  L.  T.  501 ; 
33  W.  B.  925— North,  J. 

Power  of  Surviving  Partner  to  Mortgage 
Assets  to  Secure  prior  Debt] — A  firm  consist- 
ing of  two  partners,  had  secured  the  balance  of 
their  current  account  with  a  bank  by  the  deposit 
of  certain  deeds.  One  of  the  partners  died,  and 
the  bank  requiring  further  security  from  the  sur- 
viving partner  to  secure  the  balance  then  due 
to  them  on  the  account,  the  surviving  partner 
deposited  with  the  bank  a  contract  for  the  pur- 
chase of  some  lands  as  further  security,  the  con- 
tract being  part  of  the  assets  of  the  firm  :— 
Held,  that  the  surviving  partner  was  entitled 
to  mortgage  the  assets  of  the  partnership 
for  a  past  debt.  Clough,  In  re,  Bradford 
Banking  Company  v.  Cure,  31  Ch.  D.  324 ; 
55  L.  J.,  Ch.  77 ;  63  L.  T.  716  ;  34  W.  B.  96 
— North,  J. 

Negligence  and  Fraud  of  Partner— Liability 
of  Firm.] — In  May,  1869,  P.,  a  member  of  a  firm 
of  solicitors,  suggested  to  the  plaintiff  as  an  in- 
vestment for  a  sum  of  3,5572.  in  court  to  which 
he  was  entitled,  a  mortgage  of  a  leasehold  pro- 
perty at  E.,  and  made  certain  misrepresentations 
with  respect  to  the  property.  In  July  the  money 
was  paid  out  of  court  to  the  firm  on  behalf  of 
the  plaintiff,  and  the  balance,  after  certain  de- 
ductions for  the  costs  of  payment  out,  was 
shortly  afterwards  paid  away  by  two  cheques 
signed  by  the  firm  for  332.  and  3,4002.  respec- 
tively, r.  sent  the  332.  to  the  plaintiff,  and  in- 
formed him  that  the  3,4002.  was  invested  upon 
the  security  at  E.  as  arranged,  and  in  August, 
1869,  he  sent  to  the  plaintiff  a  memorandum  of 
deposit  to  the  effect  that  he  held  the  title-deeds 
as  solicitor  for  and  on  behalf  of  the  plaintiff  to 
secure  3,4002.    In  1875  P.  executed  a  legal  mort- 


1827 


PARTNERSHIP— Partners  and  Third  Parties. 


1828 


gage  of  the  same  property  to  H.  without  dis- 
closing the  plaintiffs  equitable  charge.  The  pro- 
perty was  insufficient  to  satisfy  both  charges. 
P.  continued  to  pay  interest  to  the  plaintiff  on 
his  investment  until  1881,  when  his  fraud  was 
discovered  and  he  absconded.  The  firm  did  not 
make  any  charge  to  the  plaintiff  for  investment, 
but  their  bill  of  costs  was  limited  to  the  costs  inci- 
dental to  the  payment  of  the  money  out  of  court. 
In  1884  the  plaintiff  brought  an  action  against  the 
firm  to  recover  from  them  the  3,400Z.  lost  by  P.'s 
fraud  : — Held,  first,  that  the  firm  was  guilty  of 
negligence,  in  the  transactions  of  1869,  in  not 
seeing  that  the  plaintiff's  money  was  invested 
upon  a  proper  mortgage,  but  that  that  claim  was 
barred  by  the  statute  ;  secondly,  that  they  were 
not  liable  for  P.'s  misrepresentations,  there  being 
no  sufficient  proof  that  the  plaintiff  relied  upon 
them  ;  thirdly,  that  they  were  not  liable  for  P.'s 
fraud  in  1875,  as  it  was  not  committed  in  the 
course  of  the  firm's  business.  The  fact  that  a 
representation  is  by  its  nature  calculated  to 
induce  a  person  to  enter  into  a  contract  does  not 
raise  a  presumption  of  law  that  he  relied  upon 
such  representation.  Hvghes  v.  TwUden.  55 
L.  J.,  Ch.  481  ;  54  L.  T.  570 ;  34  W.  R.  498— 
North,  J. 

Trustees  under  a  will  deposited  certain  bonds 
payable  to  bearer  with  P.,  a  member  of  the  firm 
of  solicitors  who  were  acting  for  the  estate.  His 
partners  had  no  knowledge  of  this,  but  letters  re- 
ferring to  the  bonds  were  copied  in  the  letter- 
book  of  the  firm  and  were  charged  for  in  the 
bill  of  costs  of  the  firm,  and  the  bonds  were  in- 
cluded in  a  statement  of  account  which  the  firm 
made  out  for  the  trustees.  P.  paid  some  of  the 
interest  of  the  bonds  by  cheques  of  the  firm,  but 
on  each  occasion  recouped  the  firm  by  a  cheque 
for  the  same  amount  on  his  private  account.  P. 
misappropriated  the  bonds  :  —  Held,  that  the 
cheques,  letters  and  entries  were  too  ambiguous 
to  affect  the  other  partners  with  acquiescence  in 
P.  having  custody  of  the  bonds  as  part  of 
the  partnership  business,  and  that  they  could  not 
be  held  liable  for  their  misappropriation.  Har- 
man  v.  Johnson  (2  E.  &  B.  61)  and  Dundonald 
(Earl  o/)  v.  Masterman  (7  L.  R.,  Eq.  504)  con- 
sidered. Weather  v.  TwUden,  28  Ch.  D.  340  ;  54 
L.  J.,  Ch.  408  ;  52  L.  T.  330  ;  33  W.  R.  435— C.  A. 

Sale  of  Goodwill  ~\—See  Goodwill. 

Bankruptcy  of  one  Partner— Bight  of  others 
to  give  Discharge  for  Partnership  Assets.] — 
When  one  partner  in  a  firm  has  become  bank- 
rupt, his  solvent  partner  can  give  a  good  dis- 
charge for  debts  due  to  the  firm,  and  has  a  right, 
as  against  the  trustee  of  the  insolvent  partner, 
to  get  in  the  assets  of  the  partnership,  and  even 
to  use  the  name  of  the  trustee  for  that  purpose 
upon  giving  him  an  indemnity.  Owen,  Ex 
parte,  Owen,  In  re,  13  Q.  B.  D.  113 ;  53  L.  J., 
Q.  B.  863  ;  32  W.  R.  811— C.  A. 

Authority  of  Partner  to  enter  into  Partner- 
ship with  other  Persons.] — One  of  three  part- 
ners lent  money  on  the  terms  that  the  borrower, 
besides  paying  interest,  should  make  over  one 
half  of  his  profits  to  the  firm  to  which  the  lender 
belonged : — Held,  that  this  agreement  did  not 
constitute  a  partnership  between  the  firm  and 
the  borrower,  one  partner  having  no  authority 
from  the  other  partners  to  enter  into  a  partner- 
ship with  other  persons  in  another  business. 


Singleton  v.  Knight,  13  App.  Cas.  788 ;  57  L.  J., 
P.  C.  106  ;  59  L.  T.  738— P.  C. 

Liability  of  retired  Partner— Bill  of  Exchange 
— Compromise  of  Actions.] — The  defendant  was 
a  partner  in  the  firm  of  6.  &  Co.  from  1st  January 
to  30th  June,  1885,  and  no  notice  was  given  to 
the  plaintiff  of  his  retirement.  Between  those 
dates  the  plaintiff  discounted  an  acceptance 
indorsed  by  G.  &  Co.,  which  was  dishonoured. 
The  plaintiff  sued  G.  &  Co.  for  the  amount,  and 
G.  &  Co.  brought  a  cross-action  against  the 
plaintiff  for  recovery  of  the  bill.  Both  actions 
were  stayed  by  order  of  the  court  on  G.  &  Co. 
giving  to  the  plaintiff  a  second  acceptance  for 
the  amount  of  the  first  and  10Z.  for  costs, 
and  the  plaintiff  giving  up  certain  securities  for 
the  debt  which  were  in  his  possession.  The 
second  acceptance  was  dishonoured,  and  the 
plaintiff  sued  the  defendant  upon  it  as  a  member 
of  the  firm  of  G.  &  Co.  -.—Held,  that  the  defen- 
dant was  not  liable,  as  the  bill  of  exchange  was 
given  in  settlement  of  legal  proceedings,  which 
involved  a  give-and-take  between  the  parties, 
and  was  made  without  his  knowledge  or  consent. 
Crane  v.  Lewis,  36  W.  R.  480 — Denman,  J. 


Retired  Partner  acting  as  Partner— 


Fraud  of  Continuing  Partners.] — H.  P.,  who  had 
been  a  partner  in  a  firm  of  solicitors,  and  had 
during  that  time  attended  to  the  management 
of  a  certain  trust,  continued  to  act  in  relation 
to  a  change  of  investment  of  part  of  the  trust 
funds  after  he  had  retired  from  the  firm,  as 
if  he  were  -still  a  partner,  and  wrote  to  the 
trustees  from  the  office  of  the  firm  saying 
that  he  had  obtained  a  power  of  attorney 
authorising  "  our  brokers  "  to  sell  the  stock,  and 
asking  them  to  sign  it,  and  send  it  to  the  office 
of  the  firm.  The  trustees  did  as  requested,  and 
the  stock  was  sold,  and  the  money  received  by 
H.  P.'s  late  partners,  who  misapplied  it,  and  it 
was  lost  to  the  trust.  It  appeared  that  the 
tenant  for  life  was  aware  at  this  time  that  H.  P. 
had  retired  from  the  firm,  but  the  trustees  were 
not : — Held,  that  H.  P.  was  liable  to  make  good 
to  the  trust  the  capital  sum  lost,  and  interest 
from  the  last  day  on  which  any  was  paid.  SUel 
v.  Parker,  54  L.  T.  212— Kay,  J. 

Liability  of  Incoming  Partner  for  Debts  of 
Firm.] — Where  an  individual  has  entered  an 
appearance  in  an  action  against  a  firm,  there 
must  be  a  novation  to  render  him  liable  for  a 
debt  contracted  before  he  was  a  member.  Cripp* 
v.  Tappin,  1  C.  &  E.  13— Cave,  J. 

Liability  by  Estoppel.] — Goods  had  been  sap- 
plied  to  the  M.  Mansions  upon  the  order  of  the 
housekeeper.  The  vendor  sued  the  owner  and 
the  secretary  for  payment.  The  secretary  had 
previously  paid  for  goods  supplied  by  the  plaintiff 
by  cheques,  signed  "  M.  Mansions  account "  :— 
Held,  that  the  doctrine  in  Scarf  v.  Jardine(1  App- 
Cas.  345)  applied,  and  that  the  plaintiff  could 
not  sue  the  secretary,  whose  liability  depended 
only  on  estoppel,  at  the  same  time  as  the  real 
owner.  Jones  v.  Ashxcin,  1  C.  &  E.  169— Cave,  J. 

Bight  of  Creditor  against  Estate  of  Deeeawd 
and  of  Surviving  Partner.] — The  creditor  of  a 
partnership  firm,  although  not  strictly  *  join* 
and  several  creditor,  has  concurrent  remedies 
against  the  estate  of  a  deceased  partner  sod 


1829 


PARTNERSHIP— Partners  and  Third  Parties. 


1330 


the  surviving  partner ;  and  it  makes  no  difference 
which  remedv  he  pursues  first.  But  it  is  neces- 
sary that  the  surviving  partner  should  be  present 
at  taking  the  accounts  of  the  estate  of  the  de- 
ceased partner,  and  that  the  partnership  creditor 
should  not  come  into  competition  with  the  sepa- 
rate creditors  of  the  deceased  partner.  Hodgson, 
In  re,  Beckett  v.  Ramsdale,  81  Ch.  D.  177  ;  65 
L.  J.,  Ch.  241  ;  54  L.  T.  222  ;  34  W.  R.  127— 
C.A. 

A  father  and  son  being  in  partnership,  became 
indebted  to  the  plaintiffs,  who  were  bankers. 
The  son  died,  and  the  father  brought  an  action 
and  obtained  judgment  for  the  administration 
of  his  son's  estate.  The  plaintiffs  carried  in  a 
claim  for  the  debt  against  the  separate  estate, 
being  at  the  time  unable  to  prove  the  existence 
of  a  partnership,  and  were  declared  entitled  to  a 
dividend.  Afterwards  the  father  died,  and  the 
plaintiffs  having  obtained  proof  of  the  partner- 
ship, brought  an  action  to  make  his  estate  liable 
for  the  partnership  debt : — Held,  that  the  pro- 
ceedings in  the  previous  action  did  not  constitute 
a  res  judicata  or  estoppel  so  as  to  prevent  the 
plaintiffs  from  recovering  the  debt ;  but  they 
were  put  under  an  undertaking  to  postpone 
their  dividend  on  the  son's  separate  estate  to  the 
claims  of  his  separate  creditors.    lb. 

Action  by  Joint  Creditors  for  Administration 
of  Separate  Estate  of  Deceased  Partner.]— A 
creditor  of  a  partnership  firm  brought  an  ad- 
ministration action  against  the  executor  of  a 
deceased  *  partner.  Afterwards  a  separate  credi- 
tor of  the  same  partner  brought  an  administra- 
tion action  against  the  executor,  and  obtained 
judgment : — Held,  on  an  application  by  the 
plaintiff  in  the  first  action  for  the  conduct  of 
the  proceedings  in  the  second  action,  that  a  joint 
creditor  of  the  firm  could  not  maintain  a  simple 
action  for  the  administration  of  the  estate  of  a 
deceased  partner,  and  therefore  that  the  first 
action  was  not  properly  constituted.  Applica- 
tion of  the  plaintiff  was  consequently  refused. 
McRae,  In  re,  Forster  v.  Davie*,  Norden  v. 
McRae,  25  Cbu  D.  16 ;  53  L.  J.,  Ch.  1132  ;  49 
L.  T.  544  ;  32  W.  R.  304— C.  A.  See  also  Bar- 
nard, In  re,  ante,  col.  1326. 

Insolvent  Estate  of  Deceased  Partner— Joint 
and  Separate  Creditors  —  Surplus  Interest— 
priority.] — Prior  to  1856  A.  carried  on  a  bank- 
ing business  in  partnership  with  8.  On  the  13th 
March,  1856,  A.  died.  Soon  afterwards  the  bank 
stopped  payment,  and  B.  was  adjudicated  bank- 
nipt.  Several  actions  were  commenced  for  the 
administration  of  the  estate  of  A.  By  an  order 
made  in  the  year  1881  and  in  one  of  these  actions, 
it  was  declared  that  A/s  separate  creditors  were 
entitled  to  be  paid  out  of  the  estate  in  priority 
to  his  joint  creditors,  and  also  that  A.'s  separate 
creditors  whose  debts  by  law  or  special  contract 
carried  interest,  were  not  entitled  to  interest  in 
priority  to  the  joint  creditors  in  respect  of  the 
principal  due  to  the  joint  creditors.  The  joint 
estate  of  the  banking  firm  down  to  A.'s  death, 
and  the  bank  assets  from  that  time  until  B.'b 
bankruptcy,  and  also  B.'s  separate  estate,  were 
administered  in  bankruptcy.  The  result  of  the 
actions  to  administer  A.  's  estate  was  that  divi- 
dends amounting  to  20#.  in  the  pound  were  paid 
to  both  the  separate  and  the  joint  creditors  of 
A.  on  the  principal  sums  due  to  them  respec- 
tively, and  that  a  surplus  remained  which  was 


sufficient  to  satisfy  all  the  interest  on  the  joint 
as  well  as  the  separate  debts : — Held,  that  the 
separate  creditors,  whether  their  debts  did  or  did 
not  by  law  carry  interest,  were  entitled  to  take 
their  interest  in  priority  to  the  joint  creditors. 
Held,  also,  that  the  dividends  received  ought  to 
be  accounted  for  in  ascertaining  the  amount  of 
interest  due,  in  manner  following,  viz.,  by  treat- 
ing the  dividends  as  ordinary  payments  on 
account  and  applying  each  dividend  and  the 
surplus  (if  any)  to  the  reduction  of  the  principal. 
Whitting  stall  v.  Or  over,  55  L.  T.213  ;  35  W.  R. 
4— Chitty,  J. 

Embezzlement  of  Money  of  "  Co-partnership."] 
— See  Reg.  v.  Robson,  ante,  col.  567. 


2.  Actions. 
For  Administration  of  Estate.] — See  supra. 

Service  of  Writ  on  one  Member — Appearance 
by  him  only  "ai  a  Partner  of  the  Firm."] — A 
writ  was  issued  against  a  trading  partnership 
(uniifcorporated),  and  served  upon  a  member  of 
the  firm,  who  entered  an  appearance,  "  \V.  N., 
a  partner  of  the  firm  of  W.  T.  &  Co."  There 
was  no  service  upon  or  appearance  by  the  other 
members  of  the  firm  : — Held,  that  leave  to  sign 
judgment  against  the  firm  for  default  of  appear- 
ance could  not  be  granted.  Jackson  v.  Litch- 
field  (8  Q.  B.  D.  474)  followed.  Adam  v.  Town- 
end,  14  Q.  B.  D.  103— D. 


Member  of  Foreign  Firm  within  Juris- 


diction.]— The  defendants,  who  were  a  foreign 
partnership  carrying  on  business  out  of  the 
jurisdiction,  were  sued  in  the  name  of  their 
firm.  One  member  of  the  firm  happening  to  be 
within  the  jurisdiction  was  served  with  the  writ, 
which  was  the  ordinary  eight  day  writ : — Held, 
that  such  service  was  good  under  Ord.  IX.  r.  6, 
which  provides  that,  where  persons  are  sued  as 
partners  in  the  name  of  their  firm,  the  writ  shall 
be  served  either  upon  any  one  or  more  of  the 
partners,  or  at  the  principal  place  within  the 
jurisdiction  of  the  business  of  the  partnership 
upon  any  person  having  at  the  time  of  service 
the  control  or  management  of  the  partnership 
business  there.  Pollcxfen  v.  Sibson,  16  Q.  B.  D. 
792  ;  55  L.  J.,  Q.  B.  294  ;  54  L.  T.  297  ;  34  W. 
R.  534— D. 

Appearance — By  one  Partner — Amendment  of 
Judgment  so  as  to  include  other  Partner.] — The 
appellant  issued  a  writ  against  R.  &  Co.  R. 
alone  appeared,  and  all  subsequent  proceedings 
in  the  action  were  conducted  under  the  title  of 
M.  v.  R.,  sued  as  R.  &  Co.  When  the  action 
came  on  for  trial  the  appellant  had  a  verdict  by 
consent,  and  judgment  was  signed  against  R. 
sued  as  R.  &  Co.  The  appellant  afterwards  dis- 
covered that  the  respondent  was  a  member  of 
the  firm  of  R.  &  Co.,  and  applied  for  an  order  to 
amend  the  judgment  in  accordance  with  the 
writ,  making  it  a  judgment  against  the  firm  of 
R.  &  Co. : — Held,  that  at  the  stage  of  the  action 
the  amendment  should  not  be  allowed.  Munster 
v.  Cox,  10  App.  Cas.  680  ;  56  L.  J.,  Q.  B.  108  ; 
53  L.  T.  474  ;  34  W.  R.  461— H.  L.  (E.). 

Amending   Defect   in — Appearance  of 

Partners  in  Kama  of  Firm.] — A  writ  having 


1331 


PARTNERSHIP— Partners  inter  se. 


1332 


been  issued  against  a  firm  and  others,  was  served 
on  one  defendant,  F.,  in  his  individual  capacity 
as  a  defendant,  and  also  as  representing  both  a 
co-defendant,  G.,  and  the  firm  (of  which  he,  F., 
was  supposed  to  be  a  member).  F.  was  not,  in 
fact,  a  partner  in  the  firm,  nor  did  he  in  any  way 
represent  either  it  or  6.  for  the  purposes  of  ser- 
vice. The  firm  entered  a  conditional  appearance 
and  moved  to  discharge  the  service  as  against 
them  : — Held,  that  the  defect  in  the  firm's  ap- 
pearance, by  reason  of  their  not  having  appeared 
individually  in  their  own  names,  could  be  cured 
by  an  undertaking  of  the  partners  so  to  appear  ; 
that  upon  this  being  done  the  service  must  be 
discharged  as  against  6.,  he  being  easily  acces- 
sible, and  there  being  no  need  for  prompt  service. 
XeUon  v.  Pattorino,  49  L.  T.  564 — Pearson,  J. 

Discovery — 8ealing-up  Entries  in  Books — Sur- 
viving Partner.  J — The  defendant  and  W.  P.  were 
partners.  W.  P.  died  and  appointed  the  defen- 
dant his  executor.  In  an  action  by  a  person 
interested  under  W.  P.'s  will  against  the  defen- 
dant a  decree  was  made  for  administration  of 
W.  P.'s  estate,  and  for  taking  accounts  qf  the 
partnership  as  between  the  defendant  as  sur- 
viving partner  and  W.  P.'s  estate.  An  order 
having  Deen  made  for  the  production  of  the 
partnership  books  by  the  defendant,  he  claimed 
to  seal  up  such  entries  as  related  to  his  own 
private  affairs : — Held,  that  inasmuch  as  the 
plaintiff  and  defendant  were  both  interested  in 
the  partnership  property,  the  defendant  was  not 
entitled  to  the  ordinary  power  to  seal  up  such 
entries  as  he  might  swear  to  be  irrelevant  to 
the  matters  at  issue  in  the  action,  but  only  to 
seal  up  entries  which  related  to  certain  specified 
private  matters  mentioned  in  the  order.  ^Picker- 
ing v.  Pickering,  25  Ch.  D.  247  ;  63  L.  J.,  Ch. 
550 ;  50  L.  T.  131 ;  32  W.  B.  511— C.  A. 

Judgment  against  one  Partner  for  Partnership 
Debt — Action  against  other  Partners  for  Price 
barred.] — An  unsatisfied  judgment  against  one 
joint  contractor  on  a  bill  of  exchange,  given  by 
him  alone  for  the  joint  debt,  is  a  bar  to  an  action 
against  the  other  joint  contractor  on  the  original 
contract.  The  plaintiffs  sold  goods  to  a  partner- 
ship consisting  of  the  defendant  and  W.  After 
the  sale  the  partnership  was  dissolved.    The 

Slaintiffs,  who  were  not  aware  of  the  dissolution, 
rew  bills  for  the  price  of  the  goods,  which  were 
accepted  by  W.  in  the  partnership  name.  The 
plaintiffs  sued  W.  in  the  partnership  name  on 
the  bills,  and  recovered  judgment,  which  was 
not  satisfied.  The  plaintiffs  afterwards  sued  the 
defendant  for  the  price  of  the  goods : — Held,  that 
the  case  was  within  the  principle  of  Kendall  v. 
Hamilton  (4  App.  Cas.  504),  and  the  judgment 
against  W.  on  the  bills  was  an  answer  to  the 
action.  Drake  v.  Mitchell  (3  East,  251)  dis- 
tinguished. Cambfifort  v.  Chapman,  19  Q.  B. 
D.  229 ;  66  L.  J.,  Q.  B.  639  ;  67  L.  T.  625  ;  35 
W.  B.  838  ;  61  J.  P.  455— D.  Cp.  Hodgson,  In 
re,  ante,  col.  1329. 

Effect  of  Execution  for  Separate  Debt — Sale 
by  Sheriff  of  Debtor's  Interest  to  other  Partner.] 

— During  the  temporary  unsoundness  of  mind  ox 
the  plaintiff,  who  was  a  partner  with  the  defen- 
dant, the  sheriff  levied  execution  against  his 
"  chattel  interest "  in  the  partnership  upon  three 
judgments  which  had  been  obtained  against  him. 


At  a  sale  by  auction  by  the  sheriff,  the  defen- 
dant himself  bought  the  interest  for  a  sum  very 
much  below  its  actual  value,  and  an  assignment 
of  the  interest  was  executed  by  the  sheriff  to  the 
defendant.  The  purchase-money  was  paid  to 
the  sheriff  by  a  cheque  drawn  by  the  defendant 
on  the  partnership  h*nVing  account,  and  the 
amount  was  debited  to  the  plaintiff  in  the 
partnership  books.  The  plaintiff  on  recovering 
his  health  brought  an  action  to  set  aside  the  sale 
on  the  ground  of  undervalue  and  undue  id- 
vantage,  for  a  declaration  that  the  partnership 
was  still  subsisting,  for  a  dissolution,  and  tor  the 
usual  accounts  : — Held,  that  the  purchase  was 
void  and  must  be  set  aside  ;  and  that  under  the 
circumstances  of  the  present  case  there  was  no 
dissolution  of  the  partnership  by  the  seizure  and 
sale.  Helmore  v.  Smith,  35  Ch.  D.  436 ;  66 
L.  T.  535 ;  36  W.  B.  3— C.  A. 

Whether  a  sale  by  the  sheriff  of  a  partner]* 
interest  to  his  co-partner  causes  a  dissolution,  if 
the  co-partner  purchases  with  his  own  money, 
quaere.    lb. 


III.  BIGHTS  AND  LIABILITIES  OF  PABT- 
NEBS  BETWEEN  THEMSELVES. 

1.  Gbkbballt. 

Contract  induced  by  Misrepresentation— 
Beseission  —  Restitutio  in  Integrum.]  —  The 
respondent  was  induced  by  misrepresentations 
made  without  fraud  by  the  appellants  to  become 
a  partner  in  a  business  whicn  either  belonged 
to  them  or  in  which  they  were  partners  and 
which  was  in  fact  insolvent.  The  business 
having  afterwards,  owing  to  its  own  inherent 
vice,  entirely  failed  with  large  liabilities:— 
Held,  that  the  respondent  was  entitled  to  rescis- 
sion of  the  contract  and  repayment  of  his 
capital,  though  the  business  wnich  he  restored 
to  the  appellants  was  worse  than  worthless,  and 
that  the  contract  being  rescinded  the  appellants 
could  not  recover  against  him  for  money  lent 
and  goods  sold  by  them  to  the  partnership. 
Adams  v.  Newbigging,  13  App.  Cas.  90S; 
57  L.  J.,  Ch.  1066  ;  59  L.  T.  267  ;  37  W.  B.  97- 
H.  L.  (B.). 

Continnanoe  of  Partnership  after  Expirauei 
of  Term — Stay  of  Proceedings.] — A  partnership 
was  continued  after  the  expiration  of  the  term 
specified  in  the  articles  of  partnership.  The 
articles  contained  an  arbitration  clause,  pro- 
viding, in  effect,  that  all  disputes  or  questions 
respecting  the  partnership  affairs,  or  the  con- 
struction of  the  articles,  Bhould  be  referred  to 
arbitration.  There  were  also  clauses  providing 
for  the  purchasing  by  the  continuing  partners 
of  the  share  of  a  deceased  partner.  An  action 
was  brought  by  the  executors  of  a  deceased 
partner  against  the  surviving  partner  for  the 
winding-up  of  the  partnership.  The  defendant 
moved  for  a  stay  of  proceedings  and  a  reference 
of  the  matters  in  difference  between  the  parties 
to  arbitration.  One  of  the  questions  was 
whether  it  was  for  the  court  or  for  the  arbi- 
trators to  determine  which  of  the  clauses  in  the 
articles,  and  in  particular  whether  the  purchasing 
clauses,  applied  to  the  partnership  so  carried  on 
after  the  expiration  of  the  term : — Held,  that  it 
was  for  the  arbitrators,  and  not  for  the  court, 


1883 


PAETNEESHIP— Partners  inter  se. 


1834 


to  determine  which  of  the  articles  applied  ;  and 
that  a  stay  of  proceedings  must  be  directed,  and 
a  reference  of  all  matters  in  difference  to  arbi- 
tration,    Cope  v.  Cape,  52  L.  T,  607— Kay,  J. 

Expiration  of  Term — Continuance  without 
Fresh  Articles — Operation  of  Old.  J — When  the 
members  of  a  mercantile  firm  continue  to  trade 
as  partners  after  the  expiration  of  the  term 
limited  by  the  partnership  articles,  without 
making  any  new  agreement,  the  original  con- 
tract is  prolonged  by  tacit  consent,  and  all  its 
conditions  remain  in  force,  except  in  so  far  as 
they  are  inconsistent  with  any  implied  term  of 
the  renewed  contract.  An  implied  term  of  such 
&  new  contract  is  that  each  partner  has  the  right, 
when  acting  bona  fide  and  not  for  the  purpose  of 
obtaining  an  undue  advantage,  instantly  to 
determine  the  partnership.  Neilson  v.  Mossend 
Iron  Company,  11  App.  Cas.  298 — H.  L.  (Sc.) 

A  clause  of  a  contract  of  co-partnership  pro- 
Tided  that "  If  three  months  before  the  termina- 
tion of  this  contract,  the  whole  of  the  partners  of 
the  company  shall  not  have  agreed  to  carry  on  the 
business  thereof,  any  one  or  more  of  them  who 
may  be  desirous  of  retiring  shall  be  entitled  to  do 
so,  and  shall  immediately,  on  the  completion  of 
the  balance  after-mentioned,  be  paid  out,  by  the 
partners  electing  to  continue  the  business,  his 
share  in  the  concern,  as  the  same  shall  be  ascer- 
tained by  a  balance  of  the  company's  books,  as 
at  the  termination  of  the  contract  to  be  com- 
pleted, within  not  more  than  three  months  from 
said  termination ;  but  if  all  the  partners  wish, 
the  property  and  assets  of  the  co-partnery  shall 
be  disposed  of  as  follows  : — It  shall  be  competent 
for  any  one  of  the  partners,  for  himself  or  for 
any  one  or  more  of  them  together,  to  give  in 
offers  for  the  same  as  a  going  concern,  and  the 
highest  offerer  is  to  be  held  to  be  the  purchaser  ; 
and  in  case  only  one  offer  was  made,  the  party 
making  it  was  to  be  the  purchaser,  at  such  a  price 
as  shall  be  mutually  agreed,  and  in  case  no  offer 
▼as  made,  then  the  said  property  and  assets  shall 
be  realised  in  such  manner  as  shall  be  mutually 
agreed  upon,  or  as  shall  be  fixed  by  the  arbiter 
named"  The  business  was  carried  on  after 
the  term  limited  by  the  contract  of  co-partnery 
had  expired,  without  any  new  agreement : — 
Held,  that  this  clause  had  no  longer  any  applica- 
tion ;  and  that  each  partner  was  at  liberty  to 
determine  the  whole  partnership  whenever  he 
thought  proper,    lb. 

Death  of  Partner— Provision  that  Executors 
•hall  stand  in  his  Plaee— Eights  and  Obligations 
of  beeutors  and  Surviving  Partners.] — Partner- 
ship articles  provided  that  the  partnership 
should  last  for  a  term  of  fifteen  years,  and  that 
in  case  any  of  the  partners  should  die  during  the 
continuance  of  the  partnership,  his  executors  or 
administrators  should  succeed  to  his  share,  and 
be  and  become  partners  in  his  place,  and  in 
respect  of  his  share  : — Held,  that  the  court  would 
not,  on  the  death  of  a  partner,  force  the  executors 
to  become  partners  against  their  will ;  and,  if 
they  declined  to  come  in,  the  partnership  must 
be  treated  as  dissolved  from  the  death  of  the 
deceased  partner,  and  wound  up  on  that  footing  ; 
bat  the  judgment  must  contain  a  provision,  as  in 
Bourn  v.  Collins  (6  Ha.  418),  reserving  to  the 
•arriving  partners  the  right  to  prosecute  against 
the  estate  of  the  deceased  any  remedy  which 
titty  might  have  in  respect  of  any  alleged  breach 


of  the  covenant  contained  in  the  articles.     Lan- 
caster v.  Allsup,  57  L.  T.  53— Stirling,  J. 

Covenant  to  pay  Annuity  for  Benefit  of 


Widow  of  Deceased  Partner.]— Articles  of  part- 
nership between  two  solicitors  provided  that  the 
partnership  should  be  for  the  term  of  ten  years 
from  the  1st  of  May,  1875,  if  both  the  partners 
should  so  long  live.  The  partnership  was  also 
made  determinable  by  notice.  There  was  a 
further  provision  that  from  the  determination  of 
the  partnership  the  retiring  partner,  his  executors 
or  administrators,  or  the  executors  or  adminis- 
trators of  the  deceased  partner,  should  be  entitled 
to  receive  out  of  the  net  profits  of  the  partner- 
ship business,  during  so  much  (if  any)  of  the 
term  of  five  years  from  the  1st  of  May,  1880,  as 
should  remain  after  the  determination  of  the 
partnership,  the  yearly  sum  of  350?.,  and  during 
so  much  (if  any)  of  the  term  of  five  years  from 
the  1st  of  May,  1885,  as  either  the  retiring 
partner,  or  a  widow  of  the  retiring  or  deceased 
partner,  should  be  living,  the  yearly  sum  of  250/., 
any  sum  which  might  under  this  provision  for 
the  time  being  become  payable  to  the  executors 
or  administrators  of  a  deceased  partner  to  be 
applied  in  such  manner  as  such  partner  should 
by  deed  or  will  direct  for  the  benefit  of  his 
widow  and  children,  and  in  default  of  such 
direction  to  be  paid  to  such  widow,  if  living,  for 
her  own  benefit.  It  was  further  provided  that 
the  annuity  should,  so  far  as  legally  might  be, 
be  constituted  a  charge  on  the  net  profits  of  the 
business.  One  of  the  partners  died  in  1883,. 
leaving  a  widow,  but  without  having  given  any 
direction  as  to  the  application  of  the  annuity. 
By  his  will  he  appointed  his  widow  his  universal 
legatee  and  sole  executrix.  He  died  insolvent, 
and  an  action  was  brought  by  a  creditor  to 
administer  his  estate  : — Held,  that  the  annuity 
did  not  form  part  of  the  testator's  estate,  but  that 
by  the  articles  a  trust  of  it  was  created  in  favour 
of  the  widow,  and  that  she  was  entitled  to  it 
free  from  the  claims  of  the  testator's  creditors. 
Flavell,  In  re,  Murray  v.  Flavell,  25  Ch.  D.  89  ; 
53  L.  J.,  Ch.  185  ;  49  L.  T.  690 ;  32  W.  B.  102— 
— C.A. 

Power  of  One  Partner  to  Inorease  Capital.] 

— In  1874  the  plaintiff  H.  entered  into  partner- 
ship in  a  business,  to  be  carried  on  at  premises  be- 
longing to  the  defendant  F.  in  E.  Street,  Dublin, 
with  the  defendants  F.,  E.  and  M.,  who  had 
previously  carried  on  a  similar  business  together 
as  "F.  &  Co."  in  T.  street,  in  the  same  city. 
The  capital  of  the  new  partnership,  which  was 
to  be  managed  by  H.,  was  to  be  10,000/.,  of 
which  H.  was  to  bring  in  2,000?.,  and  the  other 
partners  the  remaining  8,000/.  out  of  the  partner- 
ship assets  of  "F.  &  Co."  H.  only  brought  in 
800/.  at  first,  but  with  the  consent  of  his 
co-partners,  allowed  his  profits  in  the  concern 
to  accumulate  to  1,200/.,  and  remain  as  capital 
therein.  The  partnership  deed  provided  that 
the  partners  should  advance  the  necessary  capital 
in  the  proportion  of  their  respective  shares  (as 
specified)  of  the  profits,  and  that  any  partner 
advancing,  with  tne  consent  of  the  others,  more 
than  his  share,  should  be  entitled  to  interest  on 
such  advance ;  that  each  partner  might  from 
time  to  time  withdraw  the  amount  of  surplus 
capital ;  that  F.  might  at  any  time  introduce 
a  new  partner  subject  to  relinquishing  in  his 
favour  a  proportionate  part  of  the  profits,  and 


1835 


PARTNERSHIP— Partners  inter  »e. 


1336 


that  on  a  dissolution  of  the  partnership  its  assets 
should,  at  F.'s  election,  become  his  property,  on 
his  paying  for  the  same  their  value,  with  a  sum 
equal  to  the  profits  gained  during  the  year.  The 
defendants  throughout  treated  the  K.  street  con- 
cern as  a  branch  to  T.  street.  At  the  close  of 
the  stock-taking  period  up  to  June,  1882,  the 
plaintiff's  capital  in  the  K.  street  concern 
amounted  to  5,6002.,  and  he  called  on  the  de- 
fendants to  pay  him  the  surplus  of  8,600/.  They 
paid  him  1,0002.,  and  refused  to  allow  him  to 
withdraw  any  more,  and  H.  then  brought  an 
action  for  dissolution  of  the  partnership.  The 
defendants  alleged  that  F.,  in  pursuance  of  his 
power  in  the  deed,  had  in  1879  introduced  a 
new  partner  into  the  K.  street  concern,  who 
brought  in  5,0002.  capital,  and  that  thereupon  F, 
raised  the  capital  of  the  firm  from  10,0002.  to 
17,5002.,  and  the  plaintiffs  capital  from  2,0002. 
to  3,5002.  with  his  consent,  and  they  offered  to 
submit  the  matters  in  dispute  to  arbitration, 
pursuant  to  a  clause  in  the  partnership  deed  : — 
Held,  that  F.  had  no  right  to  use  his  power 
of  increasing  the  capital,"  as  he  had  done,  for 
the  purpose  of  resisting  the  plaintiffs  demand 
for  a  return  of  his  surplus  capital,  and  that  the 
plaintiff  was  entitled  to  a  dissolution,  the  accounts 
being  taken  between  the  parties  on  the  basis  of 
the  clause  in  the  partnership  deed  providing  for 
the  event  of  dissolution,  although  the  dissolution 
was  taking  place  under  the  order  of  the  court, 
and  not  in  pursuance  of  the  provision  of  the 
deed.     Hesl'm  v.  I hy,  15  L.  R.,  Ir.  481 — C.  A. 


Dissolution — No  Arrangement  as  to  Goodwill 
— Bight  to  Firm  Fame.] — A  firm  of  solicitors 
consisting  of  three  partners,  carried  on  business 
under  the  style  of  "  Chappell,  Son,  &  Griffith." 
The  senior  partner  having  died,  the  business  was 
continued  by  the  son  and  the  junior  partner  under 
the  same  style  for  upwards  of  three  years.  The 
partnership  was  then  dissolved,  an  agreement 
being  executed  providing  for  the  dissolution, 
but  containing  no  reference  to  the  goodwill  of 
the  business  or  the  sale  or  disposal  thereof. 
After  the  dissolution,  the  business  of  a  solicitor 
was  carried  on  by  Chappell,  the  Son,  on  the 
premises  held  by  the  original  firm  under  the 
style  of  il  Chappell  &  Son."  Griffith,  having 
taken  offices  a  few  doors  off,  also  carried  on 
the  business  of  a  solicitor,  under  the  style  of 
"Chappell  &  Griffith."  To  this  Chappell  ob- 
jected, and  having  commenced  an  action  to 
restrain  Griffith  from  carrying  on  business  under 
the  style  referred  to,  moved  for  an  interim 
injunction.  It  was  proved  that  immediately 
before  the  dissolution  of  the  partnership,  Griffith 
had  written  to  Chappell,  stating  that  he  in- 
tended to  carry  on  business  under  the  style  of 
"  Chappell  &  Griffith,1'  and  making  suggestions 
as  to  the  style  Chappell  should  adopt.  Circulars 
were  also  forwarded  by  Griffith  to  all  the  clients 
of  the  old  firm,  informing  them  that  he  proposed 
to  carry  on  the  business  of  a  solicitor  by  himself, 
and  stating  the  style  that  he  intended  to  adopt : 
— Held,  that  the  prima  facie  right  of  the  defen- 
dant was  to  use  the  name  of  the  old  firm,  no 
arrangement  having  been  made  as  to  the  good- 
will of  the  business  ;  and  from  the  nature  of  the 
business  and  from  the  fact  that  the  style  of  the 
original  firm  had  been  used  with  a  variation, 
there  was  practically  no  risk  that  the  plaintiff 
would  be  exposed  to  injury  by  what  the  defen- 


dant was  doing ;  and  that,  therefore,  no  case 
had  been  made  for  the  intermediate  interference 
of  the  court.  Chappell  v.  Griffith,  53  L.  T.  459 ; 
50  J.  P.  86— Kay,  J.    See  alto  Goodwill. 


Joint  and  Several  Agreement— Agree- 


ment not  to  carry   on    the   Profession  of  a 
Surgeon.] — M.  became  assistant  to  H.  and  P„ 
surgeons  at  K.,  and  entered  into  a  bond  which 
recited  that  he  was  taken  into  their  employment 
on  the  terms"  that  he  should  not  at  anytime  set 
up  or  carry  on  the  business  or  profession  of  a 
surgeon  "  in  N.,  or  within  ten  miles  thereof.  The 
condition  of  the  bond  was  that  M.  "  shall  not  at 
any  time  hereafter  directly  or  indirectly,  and 
either  alone  or  in  partnership  with  or  as  assis- 
tant to  any  other   person  or  persons,  carry  on 
the  profession  or  business  of  a  surgeon  "  in  N.  or 
within  ten  miles  thereof.     The  partnership  bay- 
ing been  dissolved,  both  partners  continued  to 
practice  in  N.,  and  H.  engaged  M.  as  his  assis- 
tant at  a  salary.      P.  brought  his  action  to  re- 
strain M.  from  acting  as  such: — Held,  that  as 
the  agreement  recited  in  a  bond  was  for  the 
protection  of  the  business  carried  on  by  H.  and 
P.,  and  they  had  in  the  business  a  joint  interest 
during  the  partnership,  and  several  interests  hi 
the  event  of  a  dissolution,  the  agreement  most 
be  taken  to  be  several  as  well  as  joint,  and  that 
P.  could  sue  alone  for  a  breach  of  it : — Held,  also, 
that  there  had  been  a  breach  of  it,  for  that  a 
person  acting  as  a  surgeon  was  carrying  on  the 
profession  of  a  surgeon,  although  he  only  acted 
as  salaried  assistant  to  a  surgeon  who  carried  it 
on  for  his  own  benefit.     Allen  v.  Taylor  (19  W. 
R.  656)  distinguished.    Palmer  v.  Mallet,  36  Ch. 
D.  411 ;  57  L.  J.,  Ch.  226  ;  58  L.  T.  64 ;  36  W.B. 
460— C.  A. 


Accretion  to    Capital — Distribution  of 


Surplus  Assets  —  Lien.] — Where  in  keeping 
their  accounts  partners  had  treated  their 
respective  shares  of  the  declared  or  esthnated 
profits  of  each  year  as  accretions  to  their  respec- 
tive capitals  : — Held,  that  the  profits  of  the  year 
ending  with  the  dissolution  of  the  firm  could  not 
be  so  treated  ;  and  further,  that  the  sorphu 
assets  should  be  distributed  by  paying  to  each 
partner  his  claims  in  respect  of  capital  standing 
to  his  credit  at  the  dissolution.  The  residue  or 
deficiency  will  be  profits  or  losses,  in  either  case 
divisible  in  the  agreed  proportions.  The  rate- 
able application  of  the  surplus  assets  in  payment 
of  capital  claims  must  be  subject  to  the  liability 
to  contribution  to  make  up  a  deficiency,  and  to 
the  claim  of  any  of  the  partners  against  the  en- 
tire assets  to  answer  it.  Binney  v.  Mutrie,  12 
App.  Cas.  160  ;  36  W.  R.  129— P.  C. 


Effect  of  Seizure  and  Sale.]— See  2M- 


more  v.  Smith,  ante,  col.  1332. 

Winding  up — Beeeiver  and  Manager— Be- 
muneration.  1 — A  receiver  and  manager  appointed 
by  persons  formerly  partners  to  wind  up  their 
business  is,  in  the  absence  of  express  stipulation, 
entitled  to  a  quantum  meruit,  and  not  to  re- 
muneration according  to  the  scale  laid  down 
for  official  receivers,  nor  under  the  5  per  cent 
rule  mentioned  in  Day  v.  Croft  (2  Beav.  488), 
which  no  longer  exists.  Pri-or  v.  Bagtter,  57 
L.  T.  760— Stirling,  J. 


1837 


PATENT. 


1888 


2.  Jurisdiction  op  Courts  over. 

Serosal  to  Sign  Notice  for  Insertion  in  the 
Gasette —  Action  to  Compel.]— The  court  has 
jurisdiction  to  compel  a  retiring  partner  to  sign 
a  notice  of  dissolution  for  the  Gazette  in  an 
action  in  which  no  other  specified  relief  is 
claimed.  Hendry  v.  Turner,  32  Ch.  D.  355  ;  55 
L.  J.,  Ch.  562  ;  54  L.  T.  292 ;  34  W.  R.  613— 
Kay,  J. 

Premiums-Supplemental  Belief— Adding  In- 
quiry after  Judgment.] — Where  a  plaintiff,  who 
entered  into  a  partnership  for  a  long  term  of 
years,  and  paid  a  premium,  of  which,  in  certain 
events,  that  did  not  happen,  he  was  to  have  a 
proportion  returned  to  him,  obtained  judgment 
for  a  dissolution  and  an  order  for  accounts  and 
inquiries,  and  after  the  accounts  had  been  prose- 
cuted, asked  by  summons  for  a  direction  that 
he  was  entitled  to  be  credited  with  a  sum  as  for 
return  of  premium.  The  court  held,  that  though 
it  had  power  to  make  an  addition  to  the  judg- 
ment, yet,  as  the  plaintiff  knew  all  the  facts  at 
the  time  when  it  was  pronounced,  had  present 
to  his  mind  the  question  whether  he  was  or  not 
entitled  to  any  such  return,  and  came  to  the 
conclusion  that  he  was  not,  this  was  not  a  case 
in  which  the  relief  asked  for  should  be  granted, 
and  dismissed  the  summons  with  costs.  Edmonds 
v.  Robinson,  29  Ch.  D.  170  ;  54  L.  J.,  Ch.  586  ; 
52  L.  T.  339  ;  33  W.  R.  471— Kay,  J. 

In  partnership  cases  relief  is  given  by  directing 
a  return  of  premium  as  for  partial  failure  of  the 
consideration,  but  such  relief  ought  not  to  be 
granted  without  the  leave  of  the  court,  after 
decree  made  declaring  the  partnership  dissolved, 
and  directing  the  usual  accounts  to  be  taken  ; 
and  leave  ought  not  to  be  given  unless  the  cir- 
cumstances are  such  as  would  have  authorised 
the  court  to  give  leave  to  bring  a  supplemental 
action.    lb. 

Yora  of  Order— Sale  of  Assets.] — In  an  action 
for  the  dissolution  of  a  partnership  an  order  by 
consent  was  asked  for,  including,  amongst  other 
inquiries,  an  inquiry  "  in  what  manner  and  upon 
what  terms  and  conditions  the  partnership  assets 
might  be  sold  most  beneficially  for  all  parties 
interested  therein  : " — Held,  that  the  proper 
order  was  for  sale  of  the  assets  with  the  judge's 
approbation.  Class  v.  Marshall,  33  W.  R.  409 
— North,  J. 

In  an  action  for  the  dissolution  of  a  partner- 
ship an  order  by  consent  was  asked  for,  includ- 
ing, amongst  other  inquiries,  an  inquiry  "in 
what  manner  and  upon  what  terms  and  condi- 
tions the  "partnership  assets  might  be  sold  most 
beneficially  for  all  parties  interested  therein  "  : 
— Held,  that  to  sanction  that  form  of  inquiry 
might  cause  unnecessary  expense,  and  that  the 
proper  form  of  order  was  a  direction  that  the 
assets  should  be  sold  or  otherwise  disposed  of 
with  the  approbation  of  the  judge.  Page  v. 
Slade,  54  L.  J.,  Ch.  1131  ;  52  L.  T.  961  ;  S3 
W.  R.  701— Chitty,  J. 

Beoeiver  and  Manager— Sale  of  Business.] — 
The  court  has  jurisdiction  to  appoint  a  receiver 
and  manager  of  a  partnership  business  with  a 
view  to  selling  the  business  as  a  going  concern, 
notwithstanding  that  the  partnership  has  expired 
in  pursuance  of  the  provisions  to  that  effect  con- 
tained in  the  partnership  deed.   Taylor  v.  Neate, 


39  Ch.  D.  538  ;  57  L.  J„  Ch.  1044  ;  60  L.  T.  179  ; 
37  W.  R.  190— Chitty,  J. 


Interference  with— Circular  containing 


Libel  on  Business.] — A  libel  on  the  business 
carried  on  by  a  receiver  and  manager  appointed 
by  the  court  is  a  contempt  of  court,  and  may  be 
punished  by  committal  of  the  offender.  After 
the  court  had  made  an  order  appointing  a  receiver 
and  manager  of  a  business,  a  former  clerk  of  the 
firm  sent  round  a  circular  to  the  customers  of 
the  firm  containing  an  unfair  statement  of  the 
effect  of  the  order,  and  soliciting  their  custom 
for  his  own  business.  As  he  declined  to  give  an 
undertaking  not  to  repeat  the  offence,  the  judge 
committed  him  to  prison  for  contempt  of  court, 
and  the  committal  was  upheld  by  the  Court  of 
Appeal.  Helvwre  v.  Smith,  35  Ch.  D.  449  ; 
56  L.  J.,  Ch.  145  ;  56  L.  T.  72 ;  35  W.  R.  157 
— C.A. 


PARTY-WALLS. 

Damage  to.] — See  White  v.  Peto,  ante,  col. 
1299. 


PASSENGER. 

By  Railway.]— See  Carrier— Negligence. 
By  Ships.]— See  Shipping. 


PATENT. 

I.  For  what  Granted,  1338. 
IT.  Specification,  1340. 

III.  Infringement. 

1.  What  is,  1343. 

2.  Practice,  1344. 

IV.  Petition  for  Revocation,  1350. 

V.  Renewal  and  Prolongation  of  Let- 
ters Patent,  1351. 

VI.  Assignment  and  Licences,  1351. 

VII.  Proceedings  to  Restrain  Threats. 

1.  Generally,  1352. 

2.  Under  s.  32   of  tJie    Patents    Acty 

1883,  1352. 

I.    FOR  WHAT  GRANTED. 

Prior  Publication — Foreign  Treatise — British 
Museum.] — A  French  treatise  was  placed  in  the 
British  Museum  Library  in  1863.  The  museum 
catalogue  is  kept  with  reference  to  authors' 
names  ;  books  are  arranged  according  to  subject 
matter  ;  readers  can,  under  guidance,  search  for 


1889 


PATENT— Specification. 


books  on  particular  subjects  : — Held,  that  there 
was  no  prior  publication  in  England  of  matter 
contained  in  the  treatise,  so  as  to  avoid  a  patent 
taken  out  in  1876.  Otto  v.  Steel,  31  Ch.  D.  241 ; 
56  L.  J.,  Ch.  196  ;  64  L.  T.  157  ;  34  W.  R.  289— 
Pearson,  J. 

Foreign  Specification  in  Patent  Office 

Library.]— In  December,  1878,  and  February, 
1880,  the  specifications,  in  the  German  language, 
with  drawings,  of  two  patents  taken  out  in 
Germany,  were  deposited  in  the  free  public 
library  of  the  Patent  Office ;  and  the  journal 
published  periodically  by  the  patent  commis- 
sioners, amongst  the  list  of  patents  granted  in 
Germany,  contained  entries  of  the  particular 
patents,  with  a  note  in  each  case  that  the  speci- 
fications, as  well  as  the  list  of  applications, 
might  be  consulted  in  the  free  public  library  of 
the  office.  In  April,  1880,  a  patent  was  obtained 
in  this  country  for  an  invention  similar  to  those 
for  which  the  German  patents  had  been  granted  : 
Held,  that  the  fair  and  legitimate  inference 
from  the  above  facts  was,  that  the  public  availed 
themselves  of  the  facilities  afforded  to  them  for 
obtaining  information  as  to  the  inventions,  and 
accordingly  that  there  was  sufficient  evidence  of 
publication  of  the  German  specifications  in  this 
country  prior  to  the  date  of  the  English  patent 
•of  1880  to  avoid  such  patent,  and  that  this 
inference  was  not  affected  by  the  fact  that  the 
prior  specifications  were  in  the  German  language. 
Plimpton  v.  Sniller  (6  Ch.  D.  412)  and  Otto  v. 
Steel  (31  Ch.  D.  241)  distinguished.  Harru  v. 
Rothwell,  36  Ch.  D.  416 ;  56  L.  J.,  Ch.  459  ;  66 
L.  T.  662  ;  36  W.  R.  581— C.  A. 

Prima  facie  a  patentee  is  not  the  first  inven- 
tor, if  before  the  date  of  his  patent  an  intelli- 
gible description  of  his  invention,  either  in 
English  or  in  any  other  language  commonly 
known  in  this  country,  was  known  to  exist  in 
this  country,  either  in  the  Patent  Office  or  in  any 
other  public  library  to  which  persons  in  search 
of  information  on  the  subject  would  naturally 
go  Cor  information.  But  if  it  be  proved  that 
file  foreign  publication,  although  in  a  public 
library,  was  not  in  fact  known  to  be  there,  the 
existence  of  the  publication  in  this  country  is 
not  fatal  to  the  patent  lb.  Per  Cotton  and 
Lindley,  L.JJ. 

The  existence  of  the  German  specifications  in 
the  library  of  the  Patent  Office,  where  they 
were  unreservedly  accessible  to  every  one,  was 
in  itself  conclusive  evidence  of  a  prior  publica- 
tion,   lb.    Per  Lopes,  L.J. 

Anticipation.] — The  plaintiffs  were  the  paten- 
tees of  an  improvement  in  hydraulic  lifts,  the 
novelty  of  their  invention  being  the  introduction 
of  an  annular  area  piston,  by  the  use  of  which 
they  alleged  that  only  that  portion  of  the  water 
which  was  required  for  the  purpose  of  raising 
the  ram  and  cage  ran  to  waste.  The  defendants 
had  constructed  hydraulic  lifts  which,  according 
to  the  plaintiffs'  allegation,  were  identical  with 
those  of  the  plaintiffs,  except  that  the  constant 
pressure  was  a  weight  which  was  applied  at  a 
different  part  of  the  machine.  The  defendants 
denied  the  infringement  and  the  validity  of  the 
plaintiffs'  patent,  alleging  that  the  plaintiffs' 
invention  had  been  anticipated  by  an  invention 
of  B.,  the  specification  of  which  was  filed  a  few 
days  before  that  of  the  plaintiffs.  The  principal 
dissimilarity  between  the  two  lifts  consisted  in 


1840 

this — that  in  the  plaintiffs'  the  hri*nwng  was 
done  by  water  pressure,  and  in  the  defendants1 
by  weight  applied  to  the  plunger.  The  court 
held  that  the  object  of  the  plaintiffs'  invention 
was  the  economy  of  water,  which  was  not  the 
object  of  B.'s  invention ;  and  that,  therefore,  B.'s 
invention  was  not  an  anticipation  of  the  plain- 
tiffs' invention,  the  patent  for  which  was  valid ; 
also,  that  the  patent  of  the  plaintiffs,  being  for  a 
combination,  was  infringed  by  the  defendants 
having  taken  the  essential  part  of  it  with  a  mere 
mechanical  equivalent  for  the  parts  not  taken ; 
and  that  the  plaintiffs  were  entitled  to  an  in* 
junction  ;  but  held,  on  appeal,  without  deciding 
the  question  of  validity  of  the  plaintiffs'  patent 
on  the  ground  of  sufficiency  or  insufficiency  of 
the  specification,  that  either  B.  had  anticipated 
everything  used  in  the  plaintiffs'  patent,  or,  if 
there  was  anything  in  the  plaintiffs'  patent 
which  was  not  in  B.'s  patent,  there  had  been  no 
infringement.  Ellington  v.  Clark.  58  L.  T.  818 
— C.A. 

Validity-— Chemical  Process.]— A  patent  for 
procuring  colouring  matters  for  dyeing  and 
painting  by  a  chemical  process  held  valid. 
Badtiche  Anilin  vnd  Soda  Fabrik  v.  Levinstein* 
12  App.  Cas.  710 ;  57  L.  T.  863— H.  L.  (B.). 


II.  SPECIFICATION. 

Combination— Novelty  of  Parts. J— Where  a 
patent  is  taken  out  for  a  combination,  it  is  not 
material  to  its  validity  that  the  specification 
should  point  out  what  parts  are  old  and  what 
are  new;  though  if  an  alleged  infringement 
consists  only  in  taking  part  of  the  combination, 
it  is  necessary  that  the  patentee  should  hi  his 
specification  have  claimed  the  part  so  taken  as 
new.  Neither  is  it  necessary  that  the  patentee 
should  explain  the  novelty  and  the  merit  of  the 
invention.  Foxwell  v.  Bortock  (4  D.  J.  fc  & 
298)  explained.  Proctor  v.  Bcnnis,  36  Ch.  D. 
740  ;  57  L.  J.,  Ch.  11 ;  67  L.  T.  662 ;  36  W.  B. 
456— C.  A. 

Sufficiency— Disclosure.] — A  patent,  dated  as 
to  its  final  specification,  May,  1880,  claimed  an 
electric  lamp  with  a  carbon  filament  for  Hi 
illuminating  conductor.  The  patentee  took  out 
a  subsequent  patent,  dated  as  to  its  provisional 
specification,  December,  1879,  for  a  method  of 
making  carbon  filaments  for  electric  lamps  :~ 
Held,  that  there  had  been  no  such  want  of  dis- 
closure as  to  avoid  the  first  patent  Edittm 
EUctrie  Light  Company  v.  Woodhmif,  32  Ch. 
D.  520;  65  L.  J.,  Ch.  943;  65  L.  T.  263;  34 W. 
R.  626— Butt,  J. 

Diitinct  Statement  of  the  Iaventka 


(4 


claimed."]— The  enactment  ins.  6,  sub*.  5,  of  the 
Patents,  Designs,  and  Trade  Marks  Act,  1883, 
that  a  complete  specification  must  end  with  a 
distinct  statement  of  the  invention  claimed,  is 
directory  only,  and  when  letters  patent  have 
been  granted,  they  will  not  be  invalid  because 
it  has  not  been  complied  with.  SiddeU  v.  Vickert, 
39  Ch.  D.  92 ;  69  L.  T.  575— C.  A. 

Provisional   differing   from   Complete.]  — A 

patent  is  not  rendered  invalid  by  the  fact  that 
the  complete  specification  describes  something 


1841 


PATENT— Specification. 


1842 


different  from  anything  specifically  referred  to 
in  the  provisional  specification,  provided,  that 
what  is  so  described  comes  within  the  nature  of 
the  invention  described  in  general  terms  in  the 
provisional  specification.    lb. 

All  that  a  patentee  need  do  in  his  provisional 
specification  is  to  describe  his  invention.  He 
seed  not  go  on  therein  to  describe  any  method 
<rf  carrying  out  the  invention,  bat,  whether  he 
do  so  or  not,  if  a  different  or  farther  mode  of 
carrying  out  the  invention  is  described  in  his 
complete  specification,  that  will  not  invalidate 
the  patent  so  long  as  such  new  method  of  carry- 
ing out  is  fairly  within  the  invention  as  described 
in  the  provisional  specification.  Woodward  v. 
Santum,  56  L.  T.  347— C.  A. 

In  an  action  as  to  the  validity  of  a  patent, 
the  plaintiffs  patent  was  impeached  on  the 
ground  of  differences  between  the  provisional 
and  the  complete  specification  : — Held,  that  the 
object  of  the  provisional  specification  was  only 
to  describe  "  the  nature  of  the  invention,"  pur- 
suant to  s.  8  of  15  &  16  Vict.  c.  83  ;  that  it  was 
the  creature  of  statute,  and  the  object  of  its  in- 
troduction was  to  enable  the  inventor  to  obtain 
protection  for  his  invention  for  six  months, 
dining  which  time  he  might  use  and  publish  his 
invention  without  prejudice  to  any  letters 
patent  to  be  granted  for  the  same ;  and  that  its 
object  was  only  to  describe  generally  and  fairly 
the  nature  of  the  invention,  and  not  to  enter 
into  all  the  minute  details  of  the  complete  speci- 
fication. Moselcyv.  Victoria  Rubber  Company, 
57  L  T.  142— Chitty.  J. 

If  the  patentee,  between  the  time  of  filing 
the  provisional  and  the  complete  specification, 
discovers  any  improvement  in  the  manner  in 
which  the  invention  is  to  be  performed,  he  is 
not  merely  at  liberty,  but  is  bound  to  give  the 
public  the  benefit  of  his  discovery.    lb. 

Amendment  of— Jurisdiction  of  Master  of  the 
M»J— The  18th  section  of  the  Patents,  Designs, 
and  Trade  Marks  Act,  1883,  does  not  affect  the 
jurisdiction  of  the  Master  of  the  Bolls  to  allow 
an  amendment  in  a  patent  specification  which 
has  been  filed  under  ss.  27  and  28  of  the  Patent 
Law  Amendment  Act,  1852,  or  has  otherwise 
become  a  record.  So  long  as  it  is  in  the  Patent 
Office,  and  before  the  patent  is  sealed,  any  one 
applying  for  an  amendment  must  proceed  under 
*  18  of  the  Act  of  1883.  Gare's  Patent,  In  re, 
26  Ch.  D.  105— M.  R. 

•— Fending  Action.]— Sect.  19  of  the  Patents, 
Designs,  and  Trade  Marks  Act,  1883,  applies  to 
*n  action  for  infringement  of  a  patent  which 
*w  pending  at  the  commencement  of  the  act, 
namely,  the  1st  January,  1884,  and  the  court  in 
*ny  such  action  has  power  under  that  section  to 
give  the  plaintiff  liberty  to  apply  to  the  patent 
office  for  leave  to  amend  his  specification  by  way 
of  disclaimer.    Singer  v.  Hauon,  50  L.  T.  326— 

.  An  action  for  infringement  of  a  patent  after 
judgment,  although  an  appeal  is  pending,  is  not  a 
Pending  action  within  s.  18,  sub-a.  10,  of  the 
Patents,  &c,  Act,  1883,  so  as  to  exclude  an 
application  to  the  Comptroller  under  the  pre- 
ceding provisions  of  s.  18  for  leave  to  amend  the 
specification  by  way  of  disclaimer.  Therefore 
an  application  to  the  court  under  s.  19  for  leave 
*<>  apply  to  the  Comptroller  was  refused.    Crop- 


per v.  Smith,  28  Ch.  D.  148  ;  54  L.  J.,  Ch.  287  ; 
52  L.  T.  94  ;  33  W.  B.  338— Chitty,  J. 

The  words  "  other  legal  proceedings  "  in  s.  18, 
sub-s. 10,  refer  to  a  proceeding  for  the  revocation 
of  a  patent.    lb. 


it 


Pending  Legal  Proceeding  "—  Prohibi- 
tion to  Comptroller.] — By  s.  18,  sub-s.  1,  of  the 
Patents,  Designs,  and  Trade  Marks  Act,  1883, 
"  a  patentee  may,  from  time  to  time,  by  request 
in  writing  left  at  the  Patent  Office,  seek  leave  to 
amend  his  specification  ...  by  way  of  disclaimer, 
correction  or  explanation  . . .  By  s.  18,  sub-s.  10 : 
"  The  foregoing  provisions  of  this  section  do  not 
apply  when  and  so  long  as  any  action  for  infringe- 
ment or  other  legal  proceeding  in  relation  to  a 
patent  is  pending."  By  s.  19 :  "  In  an  action  for 
infringement  of  a  patent  and  in  a  proceeding  for 
revocation  of  a  patent  the  court  or  a  judge  may 
order  that  a  patentee  shall  ...  be  at  liberty  to 
apply  to  the  Patent  Office  for  leave  to  amend 
his  specification  by  way  of  disclaimer.  ..."  An 
action  having  been  commenced  under  s.  32  of 
the  Patents,  Designs,  and  Trade  Marks  Act,  1883, 
for  an  injunction  to  restrain  patentees  from  issu- 
ing threats  of  legal  proceedings  and  for  damages, 
the  patentees  brought  a  cross-action  for  infringe- 
ment of  their  patent.  The  patentees  then  ap- 
plied in  the  cross-action  and  obtained  a  judge's 
order  under  s.  19  giving  them  liberty  to  apply 
to  the  Comptroller-General  of  Patents  for  leave 
to  amend  their  specification  by  way  of  dis- 
claimer. Upon  an  application  for  a  writ  of  pro- 
hibition to  the  Comptroller-General  to  prevent 
him  from  hearing  the  application  upon  the 
order  : — Held,  that  the  judge  had  jurisdiction  to 
make  the  order  notwithstanding  that  the  action 
under  s.  32  had  not  been  concluded,  and  that 
the  application  for  a  prohibition  must  be  refused. 
Hall,  In  re,  21  Q.  B.  D.  137 ;  57  L.  J.,  Q.  B.  494  ; 
59  L.  T.  37  ;  36  W.  R.  892— D. 

Terms  on  which  Leave  Granted.] — On 

a  motion,  under  s.  19  of  the  Patents,  Designs, 
and  Trade  Marks  Act,  1883,  by  the  plaintiffs 
in  an  action  for  infringement  of  their  patent 
dated  in  1885,  for  liberty  to  apply  at  the  Patent 
Office  for  leave  to  amend  their  specification  by 
disclaimer,  an  order  was  made  granting  the 
leave  asked  for  on  the  following  terms,  no  state- 
ment of  claim  or  defence  having  yet  been  de- 
livered ;  no  further  proceedings  to  be  taken  in 
the  action  until  the  disclaimer  had  been  pro- 
perly made,  and,  if  so  made,  the  plaintiffs  to 
pay  the  defendants'  party  and  party  costs  of  the 
action  up  to  disclaimer  ;  the  plaintiffs  to  under- 
take forthwith  to  take  proceedings  for  disclaimer 
and  then  to  amend  their  action  by  stating  the 
disclaimer,  founding  the  action  simply  upon  the 
specification  as  amended.  Ihaee  Veeta  Com- 
pany v.  Bryant  and  May,  34  Ch.  D.  458  ;  56 
L.  J.,  Ch,  187  ;  56  L.  T.  110  ;  35  W.  R.  267— 
Kay,  J. 

Where  the  plaintiff  in  an  action  for  infringe- 
ment of  a  patent  asks  for  leave  to  apply  at  the 
Patent  Office  to  amend  his  specification  by  way 
of  disclaimer,  the  court  will  as  a  general  rule 
impose  the  condition  that  the  amended  specifica- 
tion shall  not  be  receivable  in  evidence  in  the 
action,  though  in  particular  cases  less  stringent 
terms  may  be  imposed.  Brav  v.  Gardiner,  34 
Ch.  D.  668  ;  66  L.  J.,  Ch.  497  ;  56  L.  T.  292  ;  35 
W.  E.  341— C.  A. 

In  a  patent  action  for  infringement,  after  all 


1 


1843 


PATENT— Infringement. 


1844 


the  pleadings  had  been  delivered,  so  that  nothing 
remained  to  be  done  but  to  prepare  the  evidence 
for  trial,  the  plaintiffs  asked,  under  s.  19  of  the 
Patents,  Designs,  and  Trade  Marks  Act,  1883,  for 
liberty  to  apply  for  leave  to  disclaim  one  of  the 
claims  of  their  specification.  The  application  was 
granted  on  the  following  terms  : — The  plaintiffs 
to  pay  in  any  event  the  costs  of  the  application, 
and  the  costs  of  action  up  to  and  occasioned  by 
the  disclaimer,  except  only  so  far  as  the  proceed- 
ings in  the  action  might  be  utilised  for  the 
purposes  of  the  amended  action.  The  plaintiffs 
and  the  defendants  to  be  allowed  to  make  all 
necessary  amendments  in  their  pleadings  after 
disclaimer.  The  plaintiffs  to  undertake  forth- 
with to  amend  their  pleadings,  confining  the 
action  to  the  specification  as  amended  by  the 
disclaimer,  or  to  consent  to  the  action  being 
dismissed  with  costs.  In  the  event  of  trial  all 
other  questions  of  costs  reserved.  Fusee  Vesta 
Company  v.  Bryant  (34  Ch.  D.  558)  distin- 
guished. Haslam  Foundry  and  Engineering 
Company  v.  Goodfcllow,  37  Ch.  D.  118  ;  57  L.  J., 
Ch.  245  ;  57  L.  T.  788  ;  36  W.  R.  391— Kay,  J. 

Pending  an  action  for  infringement  of  several 
paten t8,  leave  was  given  to  the  plaintiffs  to  apply 
at  the  Patent  Office  to  amend  one  of  the  specifi- 
cations by  way  of  disclaimer,  and  to  give  the 
amended  specification  in  evidence  at  the  trial, 
on  the  terms  of  the  plaintiffs  paying  all  the  costs 
of  the  action  up  to  the  time  of  leave  being  given, 
and  waiving  all  claim  to  recover  damages  for  in- 
fringements prior  to  the  amendment.  Oaulard 
v.  Lindsay,  38  Ch.  D.  38  ;  57  L.  J.,  Ch.  687  ;  52 
L.  T.  44— C.  A. 

A  petition  for  revocation  of  a  patent  which 
was  presented  in  December,  1886,  was  set  down 
for  hearing  as  an  action  with  witnesses,  and  the 
hearing  being  imminent  in  November,  1887,  the 
patentees  applied  for  liberty  to  apply  to  amend 
their  specification  and  a  postponement  of  the 
hearing.  The  application  was  granted  upon 
terms  of  the  applicants  prosecuting  with  dili- 
gence their  proposed  application  for  leave,  and 
paying  all  costs  of  the  petition  up  to  and  includ- 
ing the  application  itself.  Gaulard  $  Gibbs' 
Patent  In  re,  57  L.  J.,  Ch.  209— Kekewich,  J. 


III.  INFRINGEMENT. 
1.  What  is. 

Importation  and  User  of  Apparatus  made 
Abroad — User  for  Experiment.]  —  User  of  a 
pirated  article  for  the  purpose  of  experiment 
and  instruction  is  user  for  advantage,  and  an 
infringement  of  the  patent.  The  defendant,  an 
English  electrician,  purchased  and  imported 
from  foreign  manufacturers  apparatus  which  if 
made  here  would  have  infringed  the  plaintiff's 
patent.  The  defendant  maintained  that  he  had 
only  purchased  the  apparatus  for  examination 
and  experiment  by  himself  and  his  pupils,  as 
certain  royalty-paid  instruments  in  his  posses- 
sion were  too  expensive  to  be  taken  to  pieces  ; 
and  he  insisted  that  he  had  never  sold,  and  had 
never  otherwise  used  the  apparatus  : — Held,  that 
such  user  of  the  pirated  apparatus  by  the  defen- 
dant was  a  user  for  advantage  and  an  infringe- 
ment of  the  patent.  United  Telephone  Company 
v.  Sliarplcs,  29  Ch.  D.  164  ;  54  L.  J.,  Ch.  633  ; 
52  L.  T.  384  ;  33  W.  R.  444— Kay,  J. 


Combination.] — A  patent  for  a  combination  of 
known  mechanical  contrivances  producing  a  new 
result : — Held,  to  be  infringed  by  a  machine 
producing  the  same  result  by  a  combination  of 
mechanical  equivalents  of  the  above  contri- 
vances, with  some  alterations  and  omissions, 
which  did  not  prevent  the  new  machine  from 
being  one  which  took  the  substance  and  essence 
of  the  patented  invention.  Curtis  v.  Piatt  (35 
L.  J.,  Ch.  852)  distinguished.  Proctor  v.  Be**u, 
infra. 

Possession  of  Infringing  Machines.}— Defen- 
dants, a  telephone  company,  contracted  with  an 
American  agent  for  the  purchase  of  a  number  of 
telephones.  These  machines,  known  as  Blake 
transmitters,  having  been  accordingly  made  in 
America,  were  sent  to  this  country,  and  came 
into  the  possession  of  the  defendants,  who  kept 
them  unused  in  a  warehouse.  The  Blake 
transmitters  were  protected  by  English  and 
American  patents.  The  plaintiffs,  another  tele- 
phone company,  having  in  the  meantime  ob- 
tained an  assignment  of  Blake's  English  patent, 
brought  an  action  for  infringement,  claiming  an 
injunction  and  delivery  up  of  the  machines. 
Defendants  dismantled  the  machines  by  taking 
out  the  Blake  elements,  and  kept  the  separate 
parts  stored  in  a  warehouse  : — Held,  that  the 
possession  of  the  machines  by  the  defendants 
was  an  infringement  of  the  plaintiffs'  patent 
rights,  and  injunction  granted ;  the  court  refusing 
to  order  the  destruction  or  the  delivery  up  of  the 
infringing  machines.  United  Telephone  Com- 
pany v.  London  and  Globe  Telephone  and  ifata* 
tenance  Company,  26  Ch.  D.  766  ;  53  L.  J.,  Ch. 
1158  ;  51  L.  T.  187  ;  32  W.  R.  870— V.-C.  B. 

Sale  of  Component  Parts  of  Infringing  la- 
chine.] — Semble,  that  an  injunction  granted  to 
restrain  the  sale  of  a  complete  machine,  the 
subject  of  a  patent,  will  be  violated  by  a  sale  of 
the  component  parts  of  the  machine  in  snch  a 
way  that  they  can  easily  be  put  together  by  any- 
one. United  Telephone  Company  v.  Bait,  25 
Ch.  D.  778  ;  53  L.  J.,  Ch.  295— Pearson,  J. 


2.    Practice. 

Acquiescence — Estoppel.] — In  an  action  by 
P.,  a  patentee  for  infringement  against  persons 
who  had  bought  machines  from  B.,  it  was  proved 
that  P.  had  asked  the  purchasers  to  try  his 
machine,  saying  that  it  was  a  better  machine 
than  B.'s,  but  gave  no  intimation  that  he  con* 
sidered  B.'s  machine  an  infringement  of  his 
patent,  though  he  admitted  that  at  the  time  he 
did  consider  it  to  be  so  : — Held,  that  as  the  pur- 
chasers  did  not  depose  that  when  they  bought 
B.'s  machines  they  were  ignorant  of  P.'s  patent, 
nor  was  there  any  reason  to  believe  that  they 
were  ignorant  of  it,  or  that  P.  supposed  them  to 
be  so ;  P.  had  not  on  the  ground  of  acquiescence, 
or  estoppel,  lost  his  right  to  sue  them  for  an 
infringement  in  using  B.'s  machines,  it  not  being 
the  duty  of  a  patentee  to  warn  persons  that  what 
they  are  doing  is  an  infringement,  and  P.'s  con- 
duct not  amounting  to  a  representation  that  it 
was  not  an  infringement.    Proctor  v.  Ben*i$. 

36  Ch.  D.  740  ;  67  L.  J.,  Ch.  11 ;  57  L.  T.  662; 

37  W.  R.  456— C.  A. 

Inspection    of    Process    carried    on   under 


1345 


PATENT— Infringement. 


1346 


Patont]— The  plaintiffs,  assignees  of  a  patent 
for  an  invention  in  grinding  meal  and  flour,  by 
their  specification  claimed  the  discovery  of  a 
new  process  or  product,  but  not  any  novelty  in 
machinery.  They  obtained  an  order  for  inspec- 
tion of  tne  process  of  the  defendants,  in  pur- 
suance whereof  they  had  taken  ninety-three 
samples.  The  defendants  applied  for  an  order 
giving  them  a  like  liberty  to  inspect  the  process 
of  the  plaintiffs  and*  to  take  samples  :— Held, 
that  both  the  court  and  the  defendants  would  be 
at  a  disadvantage  if  the  latter  were  not  in  a 
position  at  the  hearing  to  describe  the  process 
.  which  the  plaintiffs  actually  carried  on  under 
their  patent,  and  that  therefore  the  defendants 
ought  to  be  allowed  to  have  the  inspection  for 
which  they  asked  and  to  take  samples.  Germ 
Milling  Company  v.  Robinson,  55  L.  J.,  Ch. 
287 ;  S3  L.  T.  696  ;  34  W.  R.  194— Kay,  J. 

Particular!   of  Breaches   and   Objections  — 
Bufiuency.] — The  sole  subject  of  Indian  Act 
XV.  of  1859,  s.  34,  corresponding  with  s.  41  of 
the  English  Patent  Law  Amendment  Act,  1852, 
is  to  give  the  defendant  fair  notice  of  the  case 
which  he  has  to  meet ;  and  it  is  quite  immaterial 
whether  the  requisite  information  be  given  in 
the  plaint  itself  or  in  a  separate  paper.     Par- 
ticulars of  breaches  must  be  distinguished  from 
particulars  of  objection  for  want  of  novelty. 
In  the  latter  case  the  particular  instances  may 
not  be  within  the  knowledge  of  the  patentee  and 
most  he  specified  ;  in  the  former  the  defendant 
most  know  whether  and  in  what  respect  he  has 
heen  guilty    of   infringement.      Wliere   three 
patents  of  the  plaintiff  all  related  to  one  article, 
a  kiln  for  burning  bricks,  and  the  second  and 
thiid  in  date  were  for  improvement  upon  the  in- 
vention specified  in  the  first,  and  the  plaintiff 
alleged  a  particular  kiln  constructed  and  used 
by  the  defendant,  and  in  his  plaint  not  only 
referred  to  his  patents,  but  indicated  in  the  case 
of  each  of  them  the  infringement  which  he  com- 
plained of: — Held,  that  this  was  a  sufficient 
compliance  with  the  act.     Talbot  v.  La  Roche 
(15  C.  B.  310)  and  Xeedham  v.  Oxley  (1  H.  & 
£  248),  approved.     Appeal  and  suit,  however, 
dismissed  for  want  of   jurisdiction  to  try  it. 
Ledfard  v.  Bull,  11  App.  Cas.  648— P.  C. 

Infringement  of  Two  Patents — Diseon- 

tiwaiieo  as  to  one.]— An  action  was  brought  by 
toe  registered  owner  of  two  letters  patent,  for 
wnilar  Inventions  dated  in  1883  and  1884, 
•fainst  the  defendants  for  the  infringement  of 
both  soch  patents.  One  of  the  defendants  was 
the  registered  owner  of  letters  patent  for  a 
similar  invention.  Particulars  of  breaches  were 
delivered  by  the  plaintiff  complaining  generally 
of  infringement  of  both  patents,  without  in  any 
**y  distinguishing  between  them.  The  defen- 
dants delivered  particulars  of  objection,  and  also 
their  answers  to  interrogatories  which  had  been 
delivered  by  the  plaintiff.  The  plaintiff  then 
discontinued  the  action  so  far  as  related  to  the 
Patent  of  1884.  Subsequently,  the  defendants 
delivered  interrogatories  as  to  the  alleged  in- 
fringements, and  as  to  documents  in  his  pos- 
session relating  to  the  preparation  of  the  specifi- 
cations of  both  patents  :— Held,  that  the  plaintiff 
ftted  give  no  further  answer  as  to  the  particulars 
of  breaches,  bnt  that  the  plaintiff's  answer  as  to 
documents  was  insufficient,  inasmuch  as  it  did 
not  distinguish  communications  between  himself 


and  his  solicitor  as  such,  and  communications 
between  himself  and  his  solicitor  in  his  character 
of  patent  agent,  communications  of  the  former 
class  alone  being  privileged.  Moteley  v.  Victoria 
Rubber  Company,  55  L.  T.  482— Chitty,  J. 

Held,  also,  that  the  defendants  had  the  right 
to  inspect  communications  between  the  plaintiff 
and  his  patent  agent  which  related  to  the  pre- 
paration of  the  specification  of  1884,  both  the 
inventions  patented  being  so  connected  that 
evidence  material  to  the  issue  might  be  disclosed 
by  such  inspection.    lb. 

Particulars  of  Objections  —  Several  Defen- 
dants/]— A  patentee  having  gone  into  liquida- 
tion his  trustee  in  liquidation  assigned  the  patent. 
The  patentee  afterwards  went  into  a  trade  part- 
nership with  S.  The  assignees  of  the  patent 
brought  an  action  against  the  patentee  and  S. 
for  an  injunction  and  damages  for  infringements 
of  the  patent  alleged  to  have  been  committed 
in  partnership.  The  defence  alleged  the  in- 
validity of  the  patent,  and  the  defendants 
delivered  particulars  of  objections,  viz.,  that 
the  defendants  would  deny  the  infringement, 
and  that  the  defendant  S.  would  rely  on  their 
objections  to  the  validity  of  the  letters  patent 
on  the  ground  of  want  of  novelty  and  insuffi- 
ciency of  the  specification : — Held,  that  under 
15  &  16  Vict.  c.  83,  s.  41,  it  was  not  necessary 
for  every  one  of  two  or  more  defendants  defend- 
ing in  the  same  interest  to  deliver  particulars  of 
objections,  and  that  the  patentee  was  not  pre- 
cluded from  setting  up  at  the  trial  the  invalidity 
of  the  patent  on  the  ground  of  want  of  novelty 
and  insufficiency  of  the  specification.  Smith  v. 
Cropper,  10  App.  Cas.  249  ;  55  L.  J.,  Ch.  12  ;  53 
L.  T.  330  ;  33  W.  R.  753— H.  L.  (B.). 


Anticipations.] — In  an  action  for  in- 


fringement of  a  patent  for  complicated  ma- 
chinery where  the  specification  contained  seven- 
teen separate  claims,  the  defendant  delivered 
particulars  of  objections,  under  s.  29  of  the 
Patents,  &c,  Act,  1883,  alleging  (1)  prior 
publication  by  articles  made  according  to 
the  supposed  invention  being  publicly  ex- 
hibited in  use  by  H.  &  Son;  and  (2)  prior 
publication  in  certain  specifications  which 
were  enumerated  and  identified  with  references 
to  pages  and  lines.  The  plaintiff  applied  for 
further  and  better  particulars :— Held,  (1)  that 
the  defendant  ought  to  specify  the  particular 
machines  or  articles  which  were  alleged  to  be 
anticipations  of  the  plaintiff's  patent ;  but  that 
he  need  not  6tate  the  parts  of  the  plaintiff's  in- 
vention which  were  anticipated  thereby,  as  the 
plaintiff  must  be  taken  to  know  his  own  in- 
vention : — Held,  (2)  that  the  defendant  must 
state  which  of  the  plaintiff's  claims  he  alleged  to 
be  anticipated  by  the  respective  specifications 
mentioned ;  and  that,  therefore,  the  particulars 
required  must  be  given.  Boyd  v.  Farrar,  57 
L.  T.  866— Kay,  J. 


Specification  not  Sufficient.] — The  defen- 


dant in  an  action  for  the  infringement  of  a 
patent  denied  the  validity  of  the  patent,  and 
stated  the  objection  that  the  specification  did 
not  sufficiently  describe  the  nature  of  the  inven- 
tion and  how  it  was  to  be  performed.  In  com- 
pliance with  an  order  for  further  particulars  he 
repeated  the  above  objection,  with  the  addition 
that  the  specification  did  not  contain  a  sufficient 

X  X 


1847 


PATEN  T — Infringement 


1348 


direction  to  enable  skilled  workmen  to  make  a 
machine  haying  the  advantages  alleged  by  the 
inventor.  The  court  ordered  further  particulars 
and  the  defendant  appealed: — Held,  that  this 
order  ought  to  be  affirmed,  for  that,  if  the  defen- 
dant knew  of  a  particular  defect  in  the  specifi- 
cation, he  ought  to  point  it  out,  that  the  plaintiff 
might  not  be  taken  by  surprise.  Crompton  v. 
Anglo-American  Brush  Electric  Light  Corpora- 
tion,  35  Ch.  D.  283  ;  56  L.  J.,  Ch.  802  ;  57  L.  T. 
291 ;  35  W.  R.  789— C.  A. 


Non-conformity  between  Provisional  and 


tory  on  a  court  of  equity  to  follow  the  rule  as 
to  costs  of  particulars  of  objections  laid  down  by 
the  Patent  Laws  Amendment  Act,  1852,8.43, 
and  that  the  rule  which  applied  to  courts  having 
no  discretion  as  to  costs  ought  not  to  be  followed 
by  analogy  by  a  court  which  had  discretion  as 
to  costs  ;  that  therefore  the  Vice-Chancellor  had 
power  to  give  these  costs,  and  that  they  mast  be 
allowed.  Parncll  v.  Mart ,  29  Ch.  D.  325 ;  53 
L.  T.  186  ;  33  W.  R.  481— C.  A. 


Complete  Specifications.] — Where  the  defendant 
in  a  patent  action  objects  to  the  validity  of  the 
plaintiffs  patent  on  the  ground  that  there  is 
want  of  conformity  between  the  provisional  and 
complete  specifications,  it  is  not  sufficient  for 
him  to  state  in  his  particulars  of  objection  that 
the  invention  described  in  the  complete  specifi- 
cation is  not  the  same  as  the  invention  described 
in  the  provisional  specification  ;  he  must  state  in 
what  the  difference  consists.  Anglo- American 
Brush  Electric  Light  Corporation  v.  Orompton, 

34  Ch.  D.  152  ;  56  L.  J.,  Ch.  167  ;  55  L.  T.  722  ; 

35  W.  R.  125— C.  A. 


Amendment  of— Costs.] — In  granting  the 


defendants  in  a  patent  action  leave  to  amend  the 
particulars  of  objection,  the  court,  even  where 
the  plaintiff,  the  patentee,  has  been  aware  of  the 
existence  of  the  alleged  anticipation  before  the 
commencement  of  the  action,  will  impose  terms 
upon  the  defendants  which  will  place  the  plaintiff 
in  the  same  position  as  if  the  amended  particu- 
lars had  been  those  originally  delivered  with 
the  defence.  Ehrlich  v.  Ihlee,  56  L.  T.  819 — 
Chitty,  J. 


Application  at  Trial  for  Amendment  ot  ] 


— During  the  trial  of  a  patent  action,  after  the 
examination  and  cross-examination  of  the  plain- 
tiff had  been  concluded,  the  defendant  asked  for 
leave  to  apply  for  the  postponement  of  the  trial 
and  to  amend  the  particulars  of  objection,  alleg- 
ing that  since  the  conclusion  of  the  cross-exam- 
ination he  had  discovered  new  facts  showing 
that  the  alleged  invention  was  not  new  at  the 
date  of  the  patent.  No  affidavit  was  tendered 
in  support  of  the  application,  but  the  defendant 
asked  to  be  allowed  to  recall  the  plaintiff,  or  to 
go  into  the  box  himself  to  prove  the  new  facts : 
— Held,  that  the  application  must  be  refused. 
Menard  v.  Levinstein  (13  W.  R.  229),  distin- 
guished. Moss  v.  Malings,  33  Ch.  D.  603 ;  56 
L.  J.,  Ch.  126 ;  35  W.  R.  165— North,  J. 


Costs  in  Palatine  Court — Nonsuit.] — In 

an  action  in  the  Court  of  the  County  Palatine  to 
restrain  infringement  of  a  patent,  the  defendants 
delivered  particulars  of  objection.  At  the  trial 
the  judge  held  the  patent  invalid  for  an  objec- 
tion appearing  on  the  face  of  it,  and  dismissed 
the  action  with  costs,  stating  his  opinion  that 
the  defendants  ought  to  have  the  costs  of  the 
witnesses  brought  up  to  support  their  particulars 
of  objection,  though  they  had  not  been  called,  as 
the  plain tiffB  virtually  had  been  non-suited.  On 
taxation  the  registrar  disallowed  these  costs,  but 
the  Vice-Chancellor  held  that  they  must  be 
allowed.  On  appeal : — Held,  that  neither  Lord 
Cairns1  Act,  nor  Sir  J.  Rolfs  Act  made  it  obliga- 


Grant  of  Certificate— Jurisdiction  of  Court 

of  Appeal.]  —In  an  action  for  infringement  of  a 
patent,  the  defendant  disputed  its  validity, 
delivered  particulars  of  objections,  stating  the 
grounds,  and  adduced  evidence  in  support 
thereof.  At  the  trial  judgment  was  given 
in  favour  of  the  plaintiff,  and  the  validity  of 
the  patent  was  upheld.  On  appeal  this  judg- 
ment was  reversed  and  the  patent  was  declared 
invalid.  The  defendant,  the  successful  appellant, 
applied  to  the  Court  of  Appeal  for  a  certificate 
under  s.  29,  sub-s.  6  of  the  Patents  Act,  1883, 
that  the  particulars  of  objection  delivered  by  him 
were  reasonable  and  proper : — Held,  that  the 
Court  of  Appeal,  having  power  to  make  such 
order  as  ought  to  have  been  made  in  the  first 
instance,  had  power  to  grant — and  under  the 
circumstances  of  the  case,  would  grant— such 
certificate.  Cole  v.  Saqui,  40  Ch.  D.  132 ;  58 
L.  J.,  Ch.  237  ;  59  L.  T.  877  ;  37  W.  R.  109— C.  A 

Grant  of  Certificate— In  what  Cases- 


Evidence.] — On  an  application  for  a  certificate 
that  particulars  are  reasonable  and  proper  under 
8.  29,  sub-8.  6  of  the  Patents,  Designs,  and  Trade 
Marks  Act,  1883,  it  is  not  enough  that  Buch  par- 
ticulars do  not  appear  to  the  court  to  be  other- 
wise than  reasonable  and  proper,  but  the  court 
must  be  satisfied  that  they  are  reasonable  and 
proper;  and,  for  the  purpose  of  determin- 
ing this  question,  the  court  will  rely  solely 
upon  knowledge  derived  from  the  trial  of 
the  action,  and  where  an  action  comes  to  an 
end  without  both  sides  being  heard,  will  not 
allow  additional  evidence  to  be  adduced.  The 
court  will  not  grant  a  certificate  to  a  party  who 
is  not  entitled  to  any  costs  of  the  action.  Germ 
Milling  Company  v.  Robinson,  55  L.  T.  282— 
Stirling,  J. 

Certificateof  Validity  of  Patent— Appeal]— By 

8. 31  of  the  Patents,  Designs,  and  Trade  Marks  Act, 
1883,  in  an  action  for  infringement  of  a  patent, 
the  court  or  a  judge  may  certify  that  the  validity 
of  the  patent  came  in  question  : — Held  that, 
such  a  certificate  is  not  a  judgment  or  order 
against  which  an  appeal  lies  to  the  Court  of 
Appeal  under  a.  19  of  the  Judicature  Act,  1873. 
Haslam  Engineering  Company  v.  Hall,  20  Q.  B. 
D.  491  ;  57  L.  J.,  Q.  B.  352  ;  69  L.  T.  102;  36 
W.  R.  407— C.  A. 

Defendant  cannot  obtain.]— A  certificate 

under  15  &  16  Vict  c  83,  s.  43,  that  the  validity 
of  a  patent  came  in  question  in  the  action,  cannot 
be  obtained  by  the  defendant  in  an  action  for 
infringement.  Badische Anilinund 8oda  jubrik 
v.  Levinstein,  29  Ch.  D.  366  ;  63  L.  T.  750-C.  A. 
Sec  S.  C.in  H.  L.  ante,  coL  1340. 

Measure  of  Damages.]— In  an  action  by  the 


1849 


PATENT— Petition  for  Revocation. 


1350 


pursuers,  who  were  assignees  of  a  patent  for  the 
manufacture  of  horse-shoe  nails,  for  damages 
caused  by  the  infringement  of  the  patent,  it  ap- 
peared that  the  pursuers  did  not  grant  licences, 
oat  themselves  manufactured  and  sold  the  nails 
made  by  their  patented  machinery,  and  it  was 
admitted  that  a  number  of  boxes  of  nails  manu- 
factured in  such  a  manner  as  to  infringe  the 
patent  had  been  sold  by  the  defenders  : — Held, 
that  to  the  extent  by  which  their  trade  was 
injured  by  the  defenders'  sales  the  pursuers 
were  entitled  to  substantial  damages  ;  that  the 
measure  of  damages  was  the  amount  of  profit 
which  they  would  have  made  if  they  had  them- 
«elves  effected  such  sales,  deducting  a  fair  per- 
centage in  respect  of  sales  due  to  the  particular 
exertions  of  the  defenders,  and  that  the  mere 
possibility  that  the  defenders  might  have  manu- 
factured and  sold  an  equal  quantity  of  similar 
nails  without  infringing  the  patent  was  no 
ground  for  reducing  the  damages  to  a  nominal 
sun  ;  and  further,  that  the  fact  that  the  pursuers 
had  in  consequence  of  the  unlawful  competition 
of  the  defenders  reduced  the  price  of  nails  which 
they  had  themselves  sold  did  not  entitle  them  to 
recover  additional  damages  in  respect  of  the 
redaction  in  the  profits  of  such  sales.  United 
Hone-Shoe  and  Nail  Company  v.  Stewart,  13 
App.  Cas.  401  ;  59  L.  T.  561— H.  L.  (Sc). 

Royalty — Set-off— Delivery  up    of   In- 

ttruients.]—  Judgment  having  been  recovered 
for  the  infringement  of  a  patent,  an  inquiry 
as  to  damages  was  directed.  It  appeared 
that  the  plaintiffs'  usual  practice  was  not  to  sell, 
bat  to  let  out  the  patented  article  at  a  rental  or 
royalty : — Held,  that  the  measure  of  damages 
was  the  profit  rental  of  the  article  during  the 
entire  period  from  the  time  when  it  came  into 
the  possession  of  the  infringer  until  the  assess- 
ment of  the  damages  or  the  date  of  its  delivery 
up ;  and  that  it  was  immaterial,  for  the  purposes 
«i  assessment,  whether  the  article  had  or  had 
not  been  in  actual  use  during  any  portion  of 
that  period  ;  and,  also,  that  the  defendants  were 
not  entitled  to  set  off  against  the  damages, 
the  value  of  any  infringing  article  delivered  up 
under  the  judgment  of  the  court,  nor  to  set  off 
any  portion  of  an  agreed  sum  for  damages  for 
infringement  recovered  by  the  plaintiffs  in  a 
previous  action  against  the  manufacturer  from 
whom  the  defendants  bought  the  article,  although 
the  period  in  respect  of  the  rental  payable  by 
the  defendants  as  damages  commenced  at  a  date 
antecedent  to  the  commencement  of  the  action 
against  the  manufacturer ;  but,  that  if  the 
damages  recovered  by  the  plaintiffs  from  the 
manufacturer,  instead  of  being  an  agreed  sum, 
had  been  a  sum  representing  the  full  rental,  or 
royalty,  the  defendants  would  have  been  entitled 
to  a  set-off.  United  Telephone  Company  v.  Walker, 
«LT. 508— Chitty,  J . 

Costs  —  Plaintiff  partially  successful. J— A 
patentee  tailed  in  establishing  the  validity  of 
a  patent,  but  succeeded  on  the  issue  of  infringe- 
ment :— Held,  that  the  plaintiff  must  pay  the 
reral  costs  of  the  action,  but  that  the  defen- 
t  most  pay  the  costs  occasioned  by  the  issue  of 
infringement,  the  one  set  of  costs  to  be  set  off 
against  the  other.  Badieehe  Anilin  und  Soda 
Fahrih  v.  Levitutein,  29  Ch.  D.  366 ;  53  L.  T. 
750— C.  A.    See  8.  C.  in  H.  L.  ante,  col  1340. 


IV.    PETITION  FOR  REVOCATION. 

Alleged  Fraud  on  Rights  of  Petitioner— Non- 
Disclosure  in  Specification  of  Faet  of  Communi- 
cation from  Abroad.] — Sect.  26,  sub-s.  4  (c),  of 
the  Patents,  Designs,  and  Trade  Marks  Act,  1883, 
applies  only  to  cases  of  fraud,  and  will  not  be 
extended  to  cases  of  mistake,  though  the  con- 
sequences may  be  to  deprive  the  inventor  of  his 
patent  rights.  Avery's  Patent.  In  re,  36  Ch.  D. 
307  ;  56  L.  J.,  Ch.  1007  ;  67  L.  T.  506  ;  36  W.  R. 
249 -C.  A. 

A.,  a  subject  of  the  United  States  of  America 
and  resident  there,  gave  a  power  of  attorney  to 
W.,  his  agent  in  England,  with  instructions  to 
obtain  a  patent  in  this  country.  W.  employed 
L.  as  his  substitute  under  the  power  of  attorney 
to  obtain  the  patent,  and  L.  took  out  a  patent  in 
his  own  name  for  the  invention,  together  with 
some  improvements  which  he  had  made  himself, 
without  stating  in  the  specification  that  it  or  any 
part  of  it  was  a  communication  from  abroad, 
and  made  a  statutory  declaration  that  he  was 
himself  the  first  and  true  inventor.  L.  had  no 
fraudulent  intention  in  taking  out  the  patent  in 
this  form,  and  acted  under  the  advice  of  a  com- 
petent patent  agent.  A  petition  was  presented 
under  the  Patents,  Designs,  and  Trade  Marks 
Act,  1883.  8.  26,  sub-s.  4  (c),  by  K.  an  attorney 
appointed  by  A.,  alleging  that  the  patent  was 
granted  "in  fraud  of  the  rights  of  A.,"  and 
asking  for  the  revocation  of  the  patent,  and  a 
declaration  that  A.  was  the  first  and  true 
inventor.  The  petition  contained  no  distinct 
allegation  that  A.  was  the  first  and  true  in- 
ventor. The  petition  was  ordered  to  be  amended 
by  making  A.  sole  petitioner,  and  all  persons 
beneficially  interested  in  the  patent  respondents: 
— Held,  that  even  if  the  patent  was  void  by 
reason  of  the  non-disclosure  in  the  specification 
of  the  communication  from  abroad,  as  there  was 
no  proof  of  any  intention  on  the  part  of  the 
patentee  to  deprive  A.  of  his  rights,  the  petition 
could  not  be  sustained  under  section  26,  sub-s.  4, 
clause  (c),  of  the  Patents  Act,  1883,  and  it  was 
dismissed  without  prejudice  to  any  petition  which 
A.  might  be  advised  to  present  under  clause  (d), 
as  a  person  claiming  to  be  the  first  and  true 
inventor.    lb. 


Person  entitled  to  Present.] — A  petition  was 
presented  under  sub-s.  4  (e)  of  s.  26  of  the 
Patents,  &c,  Act,  1883,  for  the  revocation  of 
a  patent  for  an  invention  of  improvements  in 
carriages.  The  petitioner  alleged  that  he  had, 
many  years  prior  to  the  date  of  the  patent, 
publicly  made  and  sold  carriages  made  according 
to  the  alleged  invention  ;  and  that,  by  reason  of 
the  matters  set  forth  in  the  petition,  and  of  the 
other  matters  appearing  in  the  particulars  of  ob- 
jections delivered  therewith,  the  letters  patent 
were  invalid.  The  preliminary  objection  was 
taken  that  the  petitioner,  by  referring  to  "  other 
matters  appearing  in  the  particulars  of  objec- 
tions," which  related  to  alleged  acts  of  prior  user 
by  other  persons  than  himself,  had  failed  to 
bring  himself  within  the  strict  definition  of  the 
persons  authorised  by  s.  26,  sub-s.  4  to  present  a 
petition  for  revocation,  and  that  therefore  the 
authority  of  the  Attorney-General  was  required 
before  the  petition  could  be  presented :— Held, 
that  s.  26,  sub-s.  4  merely  contained  a  description 
of  the  various  classes  of  persons  who  might  apply 

X  X  2 


1861 


PATENT — Assignment  and  Licences. 


1852 


to  the  court  for  revocation  ;  that  any  person 
haying  any  of  the  qualifications  therein  men- 
tioned might  apply ;  and  that  the  fact  that  the 
petitioner  had  farther  objections  to  the  validity 
of  this  patent  was  no  ground  for  regarding  him 
as  haying  failed  to  bring  himself  within  the 
strict  definition  of  the  section.  Morgan's  Patent, 
In  re,  58  L.  T.  713— Chitty,  J. 

Discovery  —  Practice  ai  to.]— The  ordinary 
practice  as  to  discovery  is  applicable  to  a  petition 
for  the  revocation  of  a  patent  under  the  Patents, 
Designs,  and  Trade  Marks  Act,  1883,  s.  26.  Hod- 
dan's  Patent,  In  re,  54  L.  J.,  Ch.  126  ;  51  L.  T. 
190 ;  33  W.  R.  96— Kay,  J. 

Trial  with  viva  voce  Evidence.]— A  petition 
for  the  revocation  of  a  patent  having  been  pre* 
sented  under  s.  26  of  the  Patents  Act,  1883  :— 
Held,  that  the  respondents  were  entitled  as  they 
desired  it,  to  have  the  petition  tried  with  viva 
voce  evidence.   Goulard  A  Bibbs'  Patent,  In  re, 

34  Ch.  D.  396  ;  56  L.  J.,  Ch.  606  ;  56  L.  T.  284  ; 

35  W.  R.  301— North,  J. 


V.    RENEWAL   AND   PROLONGATION 
OF  LETTERS  PATENT. 

Effect  of  Patent  Act,  1888.]— The  enactments 
of  46  &  47  Vict  c.  57,  do  not  affect  any  patent 
granted  before  the  commencement  of  the  act, 
nor  any  right  or  privilege  which  had  accrued  to 
the  patentee  before  or  at  the  commencement  of 
the  said  act,  including  the  privilege  of  applying 
for  a  renewal.  Brandon's  Patent,  In  re,  9  App. 
Cas.  589  ;  53  L.  J.,  P.  C.  84— P.  C. 

Accounts  of  Foreign  Profits.]— The  Patent 
Act,  1883  (46  &  47  Vict.  c.  57),  s.  25,  cl.  4,  does 
not  alter  the  rules  adopted  by  the  judicial  com- 
mittee. It  is  the  duty  of  a  patentee  applying 
for  a  prolongation  to  produce  accounts  of  all  the 
profits  received  under  foreign  patents  in  respect 
of  his  invention.  Newton's  Patents,  In  re,  9 
App.  Cas.  592  ;  52  L.  T.  329— P.  0. 

Account  of  Receipts  not  Filed.]— A  petition 
for  prolongation  was  dismissed  on  the  ground 
that  proper  accounts  had  not  been  produced  to 
show  the  remuneration  of  the  patentee.  Rule  9 
not  having  been  complied  with,  a  postponement 
to  amend  the  accounts  filed  was  refused.  Yates 
&  Kellett's  Patent,  In  re,  12  App.  Cas.  147  ;  57 
L.  J.,  P.  C.  1— P.  C. 


VI.    ASSIGNMENT  AND  LICENCES. 

Assignment— Estoppel  of  Patentee.]— If  a 
patentee  becomes  bankrupt,  and  his  trustee  in 
bankruptcy  assigns  the  patent,  the  patentee  is 
not  estopped  from  afterwards  denying  the  vali- 
dity of  the  patent,  as  against  the  assignee. 
Smith  v.  Cropper,  10  App.  Cas.  249  ;  55  L.  J., 
Ch.  12  ;  53  L.  T.  330 ;  33  W.  R.  753— H.  L.  (E.) 

Licence  to  Manufacture  in  one  Country Right 

to  Sell  in  another.  ]— The  defendants,  an  English 
company,  who  were  owners  of  patents  in  Eng- 
land and  Belgium  for  an  invention  for  orna- 
menting glass,  granted  to  the  plaintiffs,  a  com- 
pany incorporated  and  carrying  on  business  in 
Belgium,  a  licence  to  employ  the  invention  for 


making  glass  ai  their  factory  in  Belgium  and 
not  elsewhere.  By  the  terms  of  the  licence,  all 
points  in  difference  were  to  be  submitted  to 
arbitration  in  Belgium.  The  plaintiffs,  assuming 
their  right  to  do  so,  sold  in  England  goods 
manufactured  by  them  under  the  licence,  where- 
upon the  defendants  issued  circulars  warning 
persons  in  the  trade  that  the  sale  in  England  of 
glass  articles  made  abroad  by  employing  their 
inventions,  was  a  violation  of  their  English 
patent.  On  application  for  an  injunction  to 
restrain  the  issue  of  such  circulars :— Held,  that 
the  licence  did  not  imply  a  right  to  sell  goods 
made  by  the  plaintiffs  under  the  licence  in  any 
country  where  the  sale  would  be  a  violation  of 
the  patent  law  of  the  country.  SooUtA  Anonyms 
des  Manufactures  de  Olaees  v.  TUghman's  Patent 
Sand  Blast  Company,  25  Ch.  D.  1 ;  53  L.  J^ 
Ch.  1 ;  49  L.  T.  451  ;  32  W.  R.  71  ;  48  J.  P.  68 
— C.  A. 

Quaere,  whether  the  plaintiffs,  if  assignees  of 
the  Belgian  patent,  would  have  had  the  right  to 
sell  in  England  goods  manufactured  under  that 
patent  in  Belgium,    lb. 


VII.    PROCEEDINGS    TO    RE8TRAIN 

THREATS. 

1.  Generally. 

Issue  of  Warning  Circular  by  Patentees— 
Aotion  to  restrain.] — The  plaintiffs  were  the 
makers  of  "  Rainbow  Water  Raisers  or  Eleva- 
tors," and  they  commenced  an  action  for  an 
injunction  to  restrain  the  defendants  from 
issuing  a  circular  cautioning  the  public  against 
the  use  of  such  elevators  as  being  direct  in- 
fringements of  certain  patents  of  the  defendants. 
The  plaintiffs  subsequently  gave  notice  of  a 
motion  to  restrain  the  issue  of  this  circular  until 
the  trial  of  the  action.  The  defendants  then 
commenced  a  cross  action,  claiming  an  injunc- 
tion to  restrain  the  plaintiffs  from  infringing 
their  patents: — Held,  that  as  there  was  no 
evidence  of  mala  fides  on  the  part  of  the  defen- 
dants, they  ought  not  to  be  restrained  from 
issuing  the  circular  until  their  action  had  been 
disposed  of,  but  that  they  must  undertake  to 
prosecute  their  action  without  delay.  Household 
v.  Fairburn,  51  L.  T.  498— Kay,  J. 


2.  Under  s.  32  of  the  Patents  Act,  1883. 

Threats  by  "Circulars,  Advertisements,  or 
otherwise  "—Private  Letter.]— Threats  "by 
circulars,  advertisements,  or  otherwise  "  (Patents, 
Designs,  and  Trade  Marks  Act,  1883,  s.  32), 
include  threats  by  private  letter  to  the  person 
charged  with  infringement,  the  words  "  or  other- 
wise "  not  being  restricted,  on  the  ejosdem 
generis  principle,  to  "  or  other  means  such  as 
circulars  or  advertisements."  The  solicitors  to 
the  defendants,  a  company,  sent  a  letter  to  the 
plaintiffs,  another  company,  alleging  an  in- 
fringement of  patents  claimed  by  the  defendants, 
and  stating  that  unless  the  plaintiffs  forthwith 
discontinued  the  infringement  legal  proceedings 
would  be  taken.  The  defendants  not  having 
followed  up  the  letter  by  legal  proceedings,  the 
plaintiffs  brought  an  action  for  an  injunction, 
under  s.  32  of  the  Patents,  Designs,  and  Trade 


1358 


PATENT — Proceedings  to  Restrain  Threats. 


1854 


Marks  Act,  1883,  to  restrain  them  from  making 
or  continuing  threats  of  legal  proceedings. 
The  defendants  delivered  a  defence  alleging 
that  the  plaintiffs  had  infringed  the  patents, 
bat  afterwards,  by  amendment,  struck  out  the 
allegation : — Held,  that  the  plaintiffs  were  en- 
titled to  a  perpetual  injunction,  with  costs. 
Driffield  Linseed  Cake  Company  v.  Waterloo 
MUls  Company,  31  Ch.  D.  638 ;  55  L.  J.,  Ch. 
391 ;  54  L.  T.  210  ;  34  W.  B.  360-V.-C.  B. 


Threats,  what  are— "Without  Prejudice."]— 
Although  a  threat,  to  come  within  s.  32  of  the 
Patents  Act,  1883,  must  not  be  merely  a  warning 
about  something  that  is  going  to  be  done,  it  need 
not  be  limited  to  what  has  passed.  There  must 
be,  at  the  time  the  threat  is  made,  something 
in  respect  of  which  an  action  could  be  brought 
by  the  person  threatening.  A  letter  written 
44  without  prejudice,"  alleging  infringement  and 
threatening  proceedings  if  infringement  is  con- 
tinued, is  a  threat  within  the  Act  Or,  if  the 
parties  arrange  a  meeting  "  without  prejudice," 
and  similar  words  are  spoken,  this  also  is  such  a 
threat.  Kurtz  v.  Spenee,  57  L.  J.,  Ch.  238; 
M  L.  T.  438— Kekewich,  J. 

Issue  of  Advertisements  pending  Trial  of  Action 
stating'  that  Defendants  had  Infringed.] — Pend- 
ing the  trial  of  an  action  for  the  infringement  of 
certain  patents  the  plaintiffs  in  the  action  issued 
advertisements  stating  that,  in  consequence  of 
the  continued  infringement  of  their  patents  by 
the  defendants,  they  had  commenced  an  action 
against  them  to  restrain  them  from  infringing 
such  patents  ;  and  that  actions  would  be  com- 
menced against  all  persons  employing  or  using 
apparatus  which  was  not  according  to  the  letters 

Stent  without  the  leave  of  the  patentees : — 
eld,  that  the  plaintiffs  were  not  justified  in 
issuing  such  advertisements,  nowithstanding  s.  32 
of  the  Patents,  Designs,  and  Trade  Marks  Act, 
1883.    Goulard  v.  Lindsay,  56  L.  T.  606— Kay,  J. 

Disclaimer  after  Commencement  of  Action,] 
—An  action  having  been  commenced  by  paten- 
tees in  respect  of  an  alleged  infringement  of 
their  patent,  they  subsequently  applied  to  the 
court,  under  s.  19  of  the  Patents,  Designs,  and 
Trade  Marks  Act,  1883,  before  any  defence  to 
the  action  had  been  delivered,  that  they  might 
be  at  liberty  to  apply  at  the  Patent  Office  for 
leave  to  amend  their  specification  by  disclaiming 
a  portion  thereof,  and  that  pending  the  decision 
of  such  application  all  further  proceedings  in  the 
action  might  be  staved.  The  court  granted  the 
liberty  asked  for,  but  imposed  the  following 
terms :  That  no  further  proceedings  should  be 
taken  in  the  action  until  the  disclaimer  had  been 
properly  made  ;  that  if  the  disclaimer  were 
made  the  plaintiffs  must  pay  all  the  defendants' 
costs  of  the  action  up  to  the  disclaimer,  as  be- 
tween party  and  party  ;  that  the  plaintiffs  must 
undertake  forthwith  to  take  proceedings  to 
amend  their  specification  by  disclaimer,  found- 
ing their  action  simply  upon  the  specification  as 
amended;  and  that,  if  that  course  were  not 
adopted,  the  action  must  stand  dismissed. 
Shortly  after  such  order  was  made  the  plaintiffs 
tent  circulars  to  customers  of  the  defendants 
threatening  legal  proceedings.  The  defendants 
then  moved,  under  s.  32  of  the  Patents,  &c.,  Act, 
1883,  that  notwithstanding  the  stay  of  proceed- 


ings under  the  previous  order,  the  plaintiffs 
might  be  restrained  from  threatening  by  cir- 
culars, advertisements,  or  otherwise,  any  other 
person  with  legal  proceedings  in  respect  of  the 
manufacture  or  sale  of  the  fusees,  vestas,  or 
other  articles  made  under  the  patent.  The 
plaintiffs  contended  that  the  defendants  could 
not  move  for  an  injunction  unless  they  brought 
a  cross-action  or  put  in  a  counterclaim.  The 
answer  to  that  was,  that  in  the  present  state  of 
the  proceedings  the  defendants  could  not  bring 
in  a  counterclaim ;  but  they  undertook  to  de- 
liver one  as  soon  as  they  were  in  a  position  to  do 
so  :— Held,  that  there  had  been  a  threat  of  legal 
proceedings ;  and  that  the  court  had  jurisdiction 
to  grant  the  injunction  asked  for.  Fusee  Vesta 
Company  v.  Bryant  and  May,  56  L.  T.  136 — 
Kay,  J. 

Proof  of  Validity  of  Patent.] — In  an  action 
under  section  32  of  the  Patents  Act,  1883,  the 
mere  production  by  the  patentee  of  his  letters 
patent  does  not  prove  his  "  legal  right ; "  he 
must  support  their  validity.  The  grant  of 
letters  patent  to  two  persons  for  similar  inven- 
tions does  not  decide  how  far  the  inventions 
are  identical.  A.  files  his  provisional  specifica- 
tion. B.,  having  at  that  time  made  indepen- 
dently a  similar  discovery,  comes  the  next  day 
with  his  provisional  specification.  Subsequently 
B.  obtains  letters  patent.  Afterwards  A.  applies 
for  letters  patent  A.  can  obtain  letters  patent 
only  so  far  as  not  to  cover  B.'s  invention.  In 
case  of  two  grants  to  different  persons  for  the 
same  invention,  the  court  is  not  bound  by  the 
dates  of  the  patents,  or  by  the  fact  that  the  rival 
patentees  had  contested  their  claims  to  priority 
of  grant  before  the  law  officer  of  the  Crown. 
Kurtz  v.  Spenee,  58  L.  T.  438 — Kekewich,  J. 

In  an  action  commenced  under  s.  32  of  the 
Patents,  Designs,  and  Trade  Marks  Act,  1883, 
for  an  injunction  to  restrain  a  patentee  from 
issuing  threats  of  legal  proceedings,  the  validity 
of  the  patent  cannot  be  tried,  the  only  issue  in 
such  an  action  being  infringement  or  no  in- 
fringement. So,  where  in  an  action  commenced 
under  the  above  section,  the  plaintiffs  in  their 
statement  of  claim  alleged  that  the  defendants' 
patent  was  invalid,  such  allegation  was  ordered 
to  be  struck  out.  Kurtz  v.  Spenee,  33  Ch.  D. 
679  ;  55  L.  J.,  Ch.  919  ;  55  L.  T.  317  ;  35  W.  B. 
26— Chitty,  J. 

An  applicant  moved  for  an  injunction  to 
restrain  the  publication  of  advertisements,  which 
alleged  that  an  invention  claimed  by  him  was 
an  infringement  of  patent  rights  belonging  to 
the  advertisers,  and  which  threatened  legal  pro- 
ceedings against  purchasers  from  the  applicant. 
The  respondents,  who  were  the  advertisers,  raised 
a  case  of  alleged  infringement  by  their  affidavits, 
but  declined  to  institute  legal  proceedings 
against  the  applicant  in  respect  of  such  alleged 
infringement :  —  Held,  that  the  applicant,  as 
a  condition  precedent  to  obtaining  the  in- 
junction, must  show  that  there  had  been  no  in- 
fringement on  his  part ;  and  that,  as  the 
respondents  had  raised  a  case  of  alleged  in- 
fringement by  their  affidavits  in  opposition  to 
the  motion,  the  injunction  would  not  be  granted, 
even  though  the  respondents  declined  to  take 
legal  proceedings  against  the  applicant.  Barney 
v.  United  Telephone  Company,  28  Ch.  D.  394 ; 
52  L.  T.  573  ;  33  W.  B.  576— Chitty,  J. 

Semble.  in  an  action    under  s.   32   of    the 


1355 


PAWNBROKER    AND    PLEDGES. 


1356 


Patents  Act,  1883,  to  restrain  a  patentee  from 
issuing  threats,  the  validity  of  the  defendant's 
patent  may  be  called  in  question.  Kurtz  v. 
Spence  (33  Ch.  D.  579)  disapproved.  Challender 
v.  Royle,  infra. 

Validity  of  Defendants*  Patent— Amendment 
— Delay.] — An  action  was  brought  under  s.  32 
of  the  Patents,  Designs,  and  Trade  Marks  Act, 
1883,  to  restrain  a  patentee  from  issuing  threats, 
and  in  their  statement  of  claim  the  plaintiffs 
alleged  that  the  defendants'  patent  was  invalid, 
This  allegation  was  struck  out,  the  judge  being 
of  opinion  that  the  validity  of  the  defendants' 
patent  could  not  be  tried  in  such  an  action. 
Nearly  a  year  afterwards,  and  after  the  time  for 
appealing  had  expired,  in  consequence  of  an 
opinion  expressed  by  the  Court  of  Appeal  in 
another  case,  the  plaintiffs  applied  for  an  exten- 
sion of  time  for  appealing  from  this  order,  and 
also  for  liberty  to  amend  the  statement  of  claim 
by  inserting  the  allegation  that  the  defendants' 
patent  was  invalid  : — Held,  that  the  time  for 
appealing  ought  to  be  extended,  but  the  plaintiffs 
should  have  the  option  of  having  the  action  dis- 
missed without  prejudice  to  any  new  action  for 
the  same  purpose  : — Held  also,  that  liberty  to 
amend  ought  to  be  given  upon  special  terms  so 
as  to  prevent  the  defendants  from  suffering  any 
loss  from  the  plaintiffs  not  having  appealed 
within  the  proper  time.  Kurtz  v.  Spence,  36 
Ch.  D.  770 ;  58  L.  T.  320 ;  36  W.  R.  438— 
C.  A. 

Objections  to  Patent— Particulars  of  Objec- 
tion.]— The  plaintiffs  brought  an  action  to  re- 
strain the  defendants,  who  were  holders  of 
various  patents  for  electric  accumulators,  from 
threatening  the  plaintiffs'  customers  with  legal 
proceedings  for  infringement,  and  by  their  state- 
ment of  claim  alleged  that  the  defendants' 
Eatents  were  invalid.  No  specific  statement 
ad  been  made  by  the  defendants  which  patents 
they  alleged  to  be  infringed.  The  defendants, 
who  had  not  delivered  a  defence,  applied  for 
particulars  of  objections,  and  the  plaintiffs  were 
ordered  to  deli  ver  particulars  of  objections  within 
a  limited  time  after  the  defendants  had  given 
to  the  plaintiffs  a  list  of  the  patents  on  which 
the  defendants  intended  to  rely.  The  defen- 
dants appealed,  asking  for  an  unconditional 
order  on  the  plaintiffs  to  deliver  objections  : — 
Held,  that  the  order  under  appeal  was  right, 
but  that  the  defendants  ought  also  to  state  that 
they  relied  on  no  other  patents  than  those  in  the 
list,  and  that  the  plaintiffs  ought  to  undertake, 
when  the  list  had  been  delivered,  to  amend  their 
statement  of  claim  so  as  to  define  the  patents 
the  validity  of  which  they  disputed.  Union 
Electrical  Power  and  Light  Company  v.  Elec- 
trical Storage  Company,  38  Ch.  D.  325  ;  59  L.  T. 
427  ;  36  W.  R.  913— C.  A. 

Injunction  to  restrain — Due  Diligence,] — C, 
a  patentee,  brought  an  action  under  s.  32  of 
the  Patents  Act  of  1883  against  R.,  a  prior 
patentee  of  a  similar  invention,  to  restrain  R. 
from  issuing  threats  of  legal  proceedings  against 
persons  selling  C.'s  patent  articles.  Shortly 
after  C.  had  sued  out  his  writ,  but  before  it  had 
been  served,  R.  had  commenced  an  action  for 
infringement  against  the  P.  Co.,  who  were 
selling  C.'s  articles :  —  Held,  that  the  action 
mentioned  in  the  proviso  to  s.  32  as  taking  a 


case  out  of  the  section  need  not  be  an  action 
against  the  person  who  is  suing  to  restrain  the 
threats,  but  that  an  action  for  infringement 
honestly  brought  with  reasonable  diligence 
against  any  of  the  persons  who  have  been 
threatened,  will,  if  duly  prosecuted,  satisfy  the 
proviso.  That  in  considering  whether  such  an 
action  is  brought  with  due  diligence,  the  time  of 
issuing  the  threats,  and  not  the  time  when  the 
party  bringing  the  action  first  knew  of  the  acts 
which  he  alleges  to  be  infringements,  is  the 
period  to  be  looked  to.  Challender  v.  -Royfr, 
86  Ch.  D.  425  ;  56  L.  J.,  Ch.  995  ;  57  L.  T.  784 ; 
36  W.  R.  357— C.  A. 

Balance  of  Convenience  and  Inconvenience.] 
— In  order  to  obtain  an  interlocutory  injunction 
the  plaintiff  must  make  out  a  prima  facie  case, 
i.e.,  a  case  such  that  if  the  evidence  remains 
the  same  at  the  hearing  it  is  probable  that  he 
will  obtain  a  decree,  and  unless  he  makes  out 
such  a  case  an  injunction  will  not  be  granted  on 
the  mere  consideration  of  the  balance  of  con- 
venience and  inconvenience.    lb. 

In  a  motion  by  a  plaintiff  under  s.  32  of  the 
Patents  Act,  1883,  for  an  interim  injunction  to 
restrain  the  defendant  from  issuing  threats  of 
legal  proceedings  for  an  alleged  infringement  of 
the  defendant's  patent,  it  is  not  necessary  for 
the  plaintiff  to  prove  that  he  has  not  infringed 
the  defendant's  patent,  but  the  question  is  one 
of  the  balance  of  convenience  and  inconvenience, 
and  the  court  will  decide  according  to  its  opinion 
whether  more  harm  will  be  done  by  granting  or 
refusing  an  injunction.  Walker  v.  Clarke,  56 
L.  J.,  Ch.  239  ;  56  L.  T.  Ill  ;  35  W.  R.  245- 
Kay,  J. 


PAUPEB. 

Suing  in  Fermi  Pauperis.] — See  Practice 
(Pabtibs). 

Settlement  ot]—See  Poob  Law. 


PAVING. 

In  Metropolis.]— &e  Metropolis. 
In  other  Places.] — See  Health. 


PAWNBROKER    AND 
PLEDGES. 


Detention  of  Person  offering  Article  to  _ 
Seasonable  Suspicion  that  Article  was  stole*.  J 
—By  the  Pawnbrokers  Act,  1872  (36  Jc  36  Vict, 
c  93),  8.  34,  in  any  case  where,  on  an  article 
being  offered  in  pawn  to  a  pawnbroker  he 
reasonably  suspects  that  it  has  been  stolen  or 
otherwise  illegally  or  clandestinely  obtained,  he 


1857 


PAYMENT. 


1358 


may  seize  and  detain  the  person  so  offering  the 
article  and  the  article,  or  either  of  them,  and  shall 
deliver  the  person  and  the  article,  or  either  of  them 
(as  the  case  may  be)  as  soon  as  may  be  into  the  cus- 
tody of  a  constable.  The  plaintiff  offered  in  pawn 
to  the  defendant,  a  pawnbroker,  a  gold  horseshoe 
pin,  set  with  seven  diamonds,  and  a  ring.  The 
defendant,  having  previously  received  from  the 
police  a  notice  of  articles  recently  stolen, 
amongst  which  was  "  a  gold  horseshoe  pin,  set 
with  seven  diamonds,"  and  a  ring,  asked  the 
plaintiff  if  be  was  a  dealer.  He  replied  that  he 
was  not.  The  defendant  also  asked  the  plaintiff 
where  he  obtained  the  articles.  The  plaintiff 
said  that  he  got  them  from  a  publican,  whose 
name  and  address  he  stated.  The  defendant 
gave  the  plaintiff  into  the  custody  of  a  constable. 
It  was  afterwards  proved  that  the  articles  in  the 
possession  of  the  plaintiff  had  not  been  stolen, 
and  that  his  statements  were  true.  In  an  action 
by  him  for  false  imprisonment  the  judge  left  the 
question  whether  the  defendant  had  a  reasonable 
suspicion  to  the  jury,  who  found  their  verdict 
for  the  plaintiff :  —  Held,  that  the  question 
arising  under  the  act  whether  the  defendant 
reasonably  suspected  that  the  pin  had  been 
stolen  or  otherwise  illegally  or  clandestinely 
obtained  was  for  the  judge ;  that,  on  the  facts, 
there  was  no  evidence  of  absence  of  reasonable 
suspicion  in  the  mind  of  the  defendant,  and 
therefore  judgment  should  be  entered  for  him. 
Howard  v.  Clarke,  20  Q.  B.  D.  558 ;  58  L.  T. 
401 ;  52  J.  P.  310— D. 

Pledge— Delivery  not  contemporaneous  with 
Advance. J — In  a  pledge  of  goods  it  is  not  essen- 
tial that  the  advance  and  delivery  of  possession 
should  be  contemporaneous.  It  is  sufficient  if 
possession  be  delivered  within  a  reasonable  time 
of  the  advance  in  pursuance  of  the  contract  to 
pledge.  Hilttm  v.  Tucker,  39  Ch.  D.  669  ;  57 
L  J.,  Ch.  973  ;  59  L.  T.  172  ;  36  W.  R.  762— 
Kekewich,  J. 

Chattels  stored  in  a  Boom  as  Security  for 

Loan— Delivery  of  ley.}— In  November,  1883, 
A.  agreed  to  lend  B.  2,500/.  on  the  security  of 
a  valuable  collection  of  prints  and  engravings. 
On  the  19th  of  November,  1883,  A.  advanced  B. 
1,2501.  on  account  of  the  loan,  and  it  was 
arranged  between  them  that  the  collection 
should  be  stored  in  a  certain  room,  and  on  the 
21st  of  December,  1883.  B.  wrote  to  A.,  "the 
collection  was  moved  in  to-day.  L.  has  the  key, 
which  I  place  entirely  at  your  disposal."  On 
the  24th  of  December,  1883,  A.  advanced  to  B. 
the  balance  of  the  loan,  and  on  the  11th  of 
January,  1884,  B.  wrote  to  A. :  "  You  having 
advanced  to  me  the  sum  of  2,500/.,  I  hereby 
authorise  you  to  retain  possession  of  my  collec- 
tion of  engraved  prints,  now  deposited  by  me 
in  a  certain  room  ....  the  key  of  which  room 
is  at  present  in  your  possession  or  power  ;  and  I 
hereby  acknowledge  that  you  are  to  retain  pos- 
session of  such  prints,  &c.,  until  the  whole  of  the 
said  sum  of  2,500/.,  with  interest  at  5  per  cent., 
has  been  repaid  to  you."  B.  died  insolvent,  and 
his  administratrix  disputed  the  validity  of  A.'s 
security  on  the  ground  that  the  letter  of  the 
11th  of  January  constituted  a  bill  of  sale,  which 
was  void  under  ss.  8  and  9  of  the  Bills  of  Sale 
Act,  1882  : — Held  (1),  that  the  transaction  was 
one  of  pledge,  independent  of  the  letters,  and 
that  the  Bills  of  Sale  Act  did  not  apply  ;  and 


(2)  that  the  pledge  was  perfected  by  delivery  of 
the  key  to  L.,  which  amounted  to  constructive 
delivery  of  the  goods  to  A.    lb. 

Redeemable  Pledges  —  Taking  Interest  in 
Execution.] — A  pawnbroker's  interest  in  redeem- 
able pledges  may  be  taken  in  execution  under  a 
fi.  fa.    Rollason,  In  re,  Rollason  v.  Rollason, 

34  Ch.  D.  495  ;  56  L.  J.,  Ch.  768  ;  56  L.  T.  303  ; 

35  W.  R.  607— North,  J. 


PAYMENT. 

Of  Purchase-money  out  of  Court.] — See  Lands 
Clauses  Act. 

Into  or  out  of  Court  in  Actions.] — See  Prac- 
tice (PAYMENT  INTO  COUBT). 

Other  Funds  in  Court.]— See  lb. 

By  Cheque— Effect  of— Extinction  of  Debt] — 
When  a  debtor  draws  a  cheque  in  payment  of  a 
debt,  which  cheque  is  duly  honoured  and  paid, 
there  is  no  debt  owing  or  accruing  due  from 
debtor  to  creditor  between  the  giving  of  the 
cheque  and  payment  thereof.  Elwell  v.  Jackson, 
1  C.  &  E.  362—  Denman,  J. 

By  Promissory  Note  —  Payment  till  Dis- 
honour.]—Within  seven  days  after  the  service 
of  a  bankruptcy  notice  the  debtor  gave  to  the 
creditor  a  promissory  note,  payable  two  months 
after  date,  for  the  amount  of  the  debt,  which 
note  the  creditor  accepted  : — Held,  that,  the 
note  being  a  conditional  payment  of  the  debt, 
the  creditor  could  not,  during  the  currency  of 
the  note,  avail  himself  of  the  bankruptcy  notice 
to  obtain  a  receiving  order  against  the  debtor. 
Matthew,  Ex  parte,  Matthew,  In  re,  12  Q.  B.  D. 
506  ;  51  L.  T.  179  j  32  W.  R.  813  ;  1  M.  B.  R.47 
— C.A. 

Of  part  of  Account  —  Cheque  to  Balance 
Aocount — Cheque  retained  "  on  Account"] — A. 
sent  B.  a  "cheque  to  balance  account  as  per 
enclosed  statement."  The  enclosed  statement 
debited  B.  with  a  sum  claimed  on  account  of 
defects  in  work  done.  B.  replied,  acknowledging 
the  receipt  of  the  cheque  "on  account,"  and 
shortly  afterwards  sent  A.  a  statement  of  ac- 
count, omitting  the  sum  claimed  by  A.  for 
defective  work,  and  debiting  A.  with  a  small 
sum  for  discount  not  allowed  in  his  account, 
and,  in  the  accompanying  memorandum,  said : 
"  We  would  thank  you  for  a  remittance  of  the 
balance,  or  we  shall  be  obliged  to  take  proceed- 
ings to  recover  same."  A.  replied,  sending  a 
cheque  for  the  discount  claimed.  B.  kept  and 
cashed  the  cheques.  In  an  action  for  the 
balance,  B.  was  nonsuited  by  a  county  court 
judge  on  the  ground  that  having  taken  and 
cashed  the  first  cheque,  he  was  bound  to  apply 
it  according  to  A.'s  intention  : — Held,  that  the 
nonsuit  was  wrong.  Aokroyd  v.  Smithies,  54 
L.  T.  130  ;  50  J.  P.  358— D. 

Time  for.]— A.  contracted  with  B.  to  supply 
him  with  the  whole  of  the  Sevenoaks  stone,  re- 


1S69 


PAYMENT. 


1360 


quired  at  the  Pembury  reservoir,  the  same  to  be 
delivered  into  trucks  of  the  railway  company  at 
Sevenoaks  at  5s.  3d,  per  ton : — Held,  that  A. 
was  entitled  to  payment  on  delivery  for  the 
quantities  delivered  from  time  to  time.  Lock- 
wood  v.  Tunbridge  Wells  Local  Board,  1  C.  &  E. 
289— Huddleston,  B. 

By  Third  Party— Adoption— Evidence.]— H. 
was  tenant  to  P.  of  lands  under  a  lease  which 
expired  on  the  29th  September,  1880.  P.  brought 
ejectment  to  recover  possession  of  the  land,  and 
for  mesne  profits,  and  after  he  was  in  a  position 
to  sign  judgment,  an  agreement  was  entered 
into  in  the  month  of  November,  1884,  between 
H.  and  P.,  by  which  P.  agreed  to  grant  a  lease 
to  H.  for  thirty-one  years  from  the  29th  of  Sep- 
tember, 1884,  H.  paying  860/.  on  or  before  the 
15th  of  December,  as  and  for  mesne  profits  up  to 
that  date  and  for  costs,  and  that  H.  should  be  at 
liberty  to  sell  subject  to  the  landlord's  approval. 
H.  not  having  such  sum  of  860/.,  judgment  for 
possession  was  entered  on  the  16th  December. 
After  the  entry  of  the  judgment  negotiations, 
took  place  between  P.  and  D.,  who  had  taken  the 
land  temporarily  for  grazing  from  H.,for  a  lease 
of  the  said  lands  to  D.,  and  on  the  2nd  of 
January,  1885,  D.  paid  P.  860/.,  and  the  following 
day  signed  a  proposal  for  a  lease  for  thirty-five 
years  from  the  29th  September,  1884,  at  a  yearly 
rent  of  200/.  P.  was  only  tenant  for  life  of  the 
lands,  and  could  not  take  a  fine,  and  there  was 
no  mention  in  the  agreement  with  D.  of  the 
payment  by  him  of  860/.  On  the  6th  of  January, 
1885,  the  writ  in  the  present  action  was  issued 
by  P.  against  H.,  claiming  1,000/.  damages  for 
mesne  profits  from  the  expiration  of  the  lease  on 
the  29th  September,  1880,  and  in  the  alternative 
1,000/.  for  use  and  occupation.  H.,  by  his  de- 
fence, claimed  the  benefit  of  the  payment  by  D. 
of  the  860/.,  and  paid  6d.  into  court,  on  the 
count  in  trespass.  At  the  trial  P.'s  agent  deposed 
that  he  told  D.  that  whoever  gave  him  860/. 
would  get  the  land.  D.,  who  was  examined  for 
H.,  deposed  that  he  knew  860/.  was  claimed  from 
H.,  for  arrears  of  rent  and  costs,  and  that  he 
was  willing  to  pay  that  sum  on  getting  a  good 
lease.  The  question  left  to  the  jury  was  '•  whether 
the  860/.  was  paid  by  D.  and  received  by  P.  as 
for  the  rent  of  the  farm  due  by  H."  They  found 
that  it  was,  and  that  the  Sd.  lodged  in  court  was 
sufficient.  Upon  a  motion  by  P.  for  a  new 
trial : — Held,  that  there  was  evidence  proper  to 
be  submitted  to  the  jury  that  the  860/.  was  paid 
by  D.  and  received  by  P.,  as  and  for  the  arrears 
of  rent  and  costs,  and  that  it  was  competent  for 
H.  to  adopt  and  claim  the  benefit  of  the  pay- 
ment as  a  defence  to  the  present  action.  Purcell 
v.  Henderson,  16  L.  R.,  Ir.  213  —  Q.  B.  D. 
Affirmed  16  L.  R.,  Ir.  466— C.  A. 

Appropriation— Guarantee  of  Current  Account 
at  Bank— Death  of  Surety.] — S.  guaranteed  the 
account  of  T.  at  a  bank  by  two  guarantees,  one 
for  150/.,  the  other  for  400/.  By  the  terms  of  the 
guarantees  the  surety  guaranteed  to  the  bank 
"the  repayment  of  all  moneys  which  shall  at 
any  time  be  due  from"  the  customer  "to  you 
on  the  general  balance  of  his  account  with 
you ; "  the  guarantee  was  moreover  to  be  "  a 
continuing  guarantee  to  the  extent  at  any  one 
time  of"  the  sums  respectively  named,  and  was 
not  to  be  considered  as  wholly  or  partially  satis- 
fied by  the  payment  at  any  time  of  any  sums  due 


on  such  general  balance;  and  any  indulgence 
granted  by  the  bank  was  not  to  prejudice  the 
guarantee.  S.  having  died,  leaving  T.  and 
another  executors,  the  bank  on  receiving  notice 
of  his  death,  without  any  communication  with 
the  executors  beyond  what  would  appear  in  T.'s 
pass-book,  closed  T.'s  account,  which  was  over- 
drawn, and  opened  a  new  account  with  him,  in 
which  they  did  not  debit  him  with  the  amount 
of  the  overdraft,  but  debited  him  with  interest 
on  the  same,  and  continued  the  account  until  he 
went  into  liquidation,  when  it  also  was  over- 
drawn :— Held,  by  Bacon,  V.-C,  that  payments 
in  after  the  death  of  the  surety  went  in  discharge 
of  the  overdraft,  alike  on  the  terms  of  the 
guarantee,  and  on  the  principle  of  Clayton's  ease 
(1  Mer.  572, 605),  and  that,  as  the  amount  of  such 
payments  exceeded  the  overdraft,  the  bank  were 
not  entitled  to  prove  against  the  estate  of  the 
father-in-law.  But  held,  on  appeal,  that  there 
was  no  contract,  express  or  implied,  which  obliged 
the  debtor  and  creditor  to  appropriate  to  the  old 
overdraft  the  payments  made  by  the  debtor 
after  the  determination  of  the  guarantee,  and 
that  the  bank  were  entitled  to  prove  against  the 
estate  of  S.  for  the  amount  of  the  old  overdraft 
less  the  amount  of  the  dividend  which  they  had 
received  on  it  in  the  liquidation.  Sherry,  In  re, 
London  and  County  Banking  Company  v.  Terry, 
25  Ch.  D.  692  ;  53  L.  J.,  Ch.  404  ;  50  L.  T.  227  ; 
32  W.  K.  394— C.  A. 

- — Receipt  of  Promiums — Contract  of  In- 
surance.]— Where  the  plaintiffs  being  agents  for 
an  insurance  office,  remitted  to  it  100/.  "for 
premiums, "  and  it  appeared  that  the  100/.  was 
to  the  knowledge  of  the  office  in  excess  of  what 
they  owed  as  agents,,  and  that  the  terms  on  which 
certain  lapsed  policies  should  be  renewed  by 
the  office- for  their  benefit  had  been  ascertained 
by  consent :— Held,  that  although  there  was  not 
in  the  office  any  specific  appropriation  of  any 
part  of  the  100/.  to  the  payment  of  the  premiums 
on  the  lapsed  policies,  yet  that  it  must  be  taken 
to  have  been  received  on  account  thereof,  and 
that  from  the  date  of  receipt  there  was  a  good 
contract  for  the  renewal  of  the  old  insurances. 
Kirkpatrick  v.  South  Australian  Insurance 
Company,  11  App.  Cas  177 — P.  C. 

-Bank  Account.] — M.,  being  entitled  to  the 


lessee's  interest  in  lands  at  C,  in  1868,  deposited, 
inter  alia,  the  title-deeds  with  a  bank,  to  secure 
any  balance  due  or  to  become  due,  accompanied 
by  a  letter  of  deposit.  On  the  21st  November, 
1870,  he  wrote  to  the  manager  of  the  bank  0„ 
asking  for  the  title-deeds  of  C.  in  exchange  for 
other  securities,  and  stating  that  he  had  agreed 
to  put  C.  in  settlement  on  his  marriage ;  and  at 
the  same  time  he  deposited  other  securities  with 
O.  on  behalf  of  the  bank.  O.  thereupon  drew 
two  lines  through  the  memorandum  of  1868,  in 
the  deposit  book,  and  wrote  at  the  foot  of  the 
entry  "  annexed  list  cancelled  and  new  ones  sub- 
stituted." The  bank,  however,  refused  to  gfre 
up  the  deeds  of  C.  On  the  occasion  of  his  mar- 
riage, M.  executed  a  settlement,  dated  the  24th 
November,  1870,  and  registered  on  the  8th 
February,  1871,  charging  C.  with  a  sum  of  3,000/., 
which,  subject  to  life  interests  for  himself  and 
wife,  was  settled  in  trust  for  the  children  of  the 
marriage.  M.,  who  was  a  solicitor,  drew  the 
settlement  and  was  the  only  solicitor  engaged  in 
the  transaction.    Subsequently,  in  1871,  M.gsre 


1361 


PENALTY. 


1862 


the  bank  a  farther  letter  of  deposit,  in  which 
the  title-deeds  of  C.  were,  included.  None  of  the 
letters  of  deposit  were  registered.  After  the 
settlement  M.  paid  in  to  the  credit  of  his  current 
account  at  the  bank,  sums  of  money  exceeding 
the  amount  due  from  him  at  the  date  of  the 
settlement.  In  a  paper  attached  to  the  letter  of 
deposit  of  1870,  0.  made  a  memorandum,  stating 
that  it  was  cancelled  by  the  letter  of  deposit  of 
1871,  which  was  taken  in  case  of  any  irregularity 
in  the  former  transaction.  0.  deposed  that  he 
did  not  intend  to  give  up  the  security  of  the 
deposit  of  1868,  that  he  had  a  general  authority 
to  substitute  one  security  for  another,  but  not  to 
give  up  a  security  altogether : — Held,  that  the 
money  paid  in  by  M.  to  his  current  account  with 
the  bank  after  the  24th  November,  1870,  must  in 
the  absence  of  express  appropriation,  be  deemed 
to  be  appropriated  to  the  debt  due  by  him 
previously  to  that  date,  which  was  therefore  dis- 
charged by  such  payments.  Macnamura's  Estate, 
I*  re,  13  L.  R.,  Ir.  158— Land  Judges. 


PENALTY. 

Ofletr  interested  in  Contract  with  Local 
Authority.]— See  ante,  Health,  VI.  2. 

Toting  in  Parliament  without  having  taken 
the  Oath,] — See  Attorney- General  v.  Bradlaugk, 
ante,  coL  1316. 


w  as  Member  of  Vestry,  when  interested 
hi  Contract] — See  Metropolis,  1. 1. 


for — Discovery  of  Documents.]— See 
Discoveby,  I.  2. 

Administering    Interrogatories.]  —  See 

Discovery,  II.  2. 

lotedng  Statutory  Duty— Bight  of  Action.] 
—The  Merchant  Shipping  Act,  1854,  ss.  172  and 
524,  imposes  a  penalty,  not  exceeding  10Z.,  upon 
any  master  of  a  ship  who  fails  to  sign  and  give  a 
certificate  of  discharge  to  a  seaman,  specifying 
the  period  of  his  service  and  the  time  and  place 
of  his  discharge,  such  penalty  to  be  applied,  if 
the  justices  think  fit,  in  compensating  any  person 
for  any  wrong  or  damage  which  he  may  have 
'attained  by  the  act  or  default,  in  respect  of 
which  such  penalty  is  imposed.  The  plaintiff,  a 
ataman,  brought  an  action  against  the  defendant, 
a  master  of  a  ship,  for  damages  sustained  through 
the  defendant  withholding  a  certificate  of  dis- 
charge : — Held,  that  the  action  was  not  main- 
tainable, inasmuch  as  the  duty  was  created  for 
the  first  time  by  17  &  18  Vict  c.  104,  s.  172,  and 
*  particular  remedy  was  conferred  by  that  statute. 
ItUance  ▼.  Falle,  13  Q.  B.  D.  109 ;  63  L.  J.,  Q. 
B.  459 ;  51  L.  T.  158 ;  32  W.  B.  769  ;  48  J.  P.  619  ; 
5  Asp.  M.  C.  280— D. 

1— iiiien  of— Officer  interested  in  Contract 
with  local  Authority.]— Under  22  Vict.  c.  32— 
which  enables  the  crown  to  remit  penalties  im- 
posed by  statute  on  convicted  offenders — there  is 
no  power  to  remit  the  penalty  to  which  the 
officers  of  local  authorities  are  liable  under  s.  193 


of  the  Local  Government  Act,  1875,  for  being 
interested  in  any  contract  made  with  such  local 
authorities.  Todd  v.  Robinson,  12  Q.  B.  D.  630  ; 
53  L.  J.,  Q.  B.  251 ;  60  L.  T.  298  ;  32  W.  R.  858  ; 
48  J.  P.  694— D.    See  47  &  48  Vict.  c.  74. 


Penalty  or  Liquidated  Damages.]— An  agree- 
ment for  sale  contained  the  two  following  pro- 
visions :  (9)  As  an  earnest  hereof  the  purchaser 
has  this  day  paid  into  the  hands  of  S.  the  sum  of 
500/.  as  a  deposit,  the  deposit  to  form  part  of  the 
purchase-money  to  be  paid  on  the  day  of  pos- 
session ,*  and  (10)  Should  either  vendor  or  pur- 
chaser refuse  or  neglect  to  carry  out  the  above 
arrangement  on  her  or  his  part,  the  one  so  re- 
fusing or  neglecting  shall  pay  to  the  other  the 
sum  of  500Z.  as  or  in  the  nature  of  liquidated 
damages.  The  purchaser  was  unable  to  carry 
out  his  part  of  the  agreement.  The  vendor 
brought  this  action  for  specific  performance  of 
the  agreement,  or,  in  the  alternative,  payment  of 
the  500Z.  as  liquidated  damages.  It  was  con- 
tended that  this  5002.  was  a  penalty,  and  was 
therefore  not  recoverable : — Held,  that  the  mean- 
ing of  the  agreement  was  that  the  6002.  should 
be  recoverable,  not  if  some  minute  provision 
were  not  carried  out,  but  if,  owing  to  the  fault  of 
either  party,  the  agreement  were  not  carried  out 
at  all,  and  that  that  sum  could  be  recovered  in 
this  case  as  liquidated  damages.  Cat  ton  v.  Bennett, 
51  L.  T.  70— Kay,  J. 

Held,  that  it  could  also  be  recovered  if  the 
action  were  looked  upon  as  an  action  to  enforce 
the  forfeiture  of  the  deposit.    lb. 

When  one  lump  sum  is  made  payable  by  way 
of  compensation  on  the  occurrence  of  one  or 
more  or  all  of  several  events,  some  of  which  may 
occasion  serious  and  others  but  trifling  damage, 
the  presumption  is  that  the  parties  intended  the 
sum  to  be  penal  and  subject  to  modification ; 
but  where  the  payments  stipulated  are  made 
proportionate  to  the  extent  to  which  the  con- 
tractors may  fail  to  fulfil  their  obligations,  and 
they  are  to  bear  interest  from  the  date  of  the 
failure,  payments  so  adjusted  with  reference  to 
the  actual  damage  are  liquidated  damages. 
Mphinstone  v.  Monkland  Iron  and  Coal  Com- 
pany, 11  App.  Cas.  832  ;  35  W.  R.  17— H.  L. 
(8c.) 


Lease  —  Covenant  —  Penal  Bent.]  —  By 


lease,  made  in  1857,  for  a  term  of  thirty-one 
years,  the  lessee,  amongst  other  things,  cove- 
nanted that  he  would  cultivate  and  manage  the 
lands  in  a  good  and  husbandlike  manner,  and 
would,  during  the  last  four  years  of  the  term, 
keep  the  lands  in  a  due  course  of  husbandry  as 
follows : — Two-thirds  thereof  to  be  kept  in  grass, 
and  one-third  under  proper  husbandlike  culti- 
vation. Provided  that,  if  the  lessee  should  fail 
to  do  so,  he  the  said  lessee  would  pay  yearly,  and 
every  year  from  and  after  such  default  should  be 
made,  unto  the  lessor,  a  penalty  of  double  the 
said  yearly  rent,  the  same  to  be  reserved  in  like 
manner  as  the  yearly  rent  thereinbefore  reserved 
was  recoverable : — Held,  that  the  double  rent 
was  a  penalty.  Dickson  v.  Lough,  18  L.  R.,  Ir. 
618— Q.  B.  D.    Affirmed  in  C.  A. 


186S 


PENSION— POLICE. 


mi 


PENSION. 

Execution  Creditor— Appointment  of  Beceiver 
— Indian  Officer's  Pennon.] — The  pension  of  an 
officer  of  Her  Majesty's  forces,  being  by  s.  141  of 
the  Army  Act,  1881,  made  inalienable  by  the 
voluntary  act  of  the  person  entitled  to  it,  cannot 
be  taken  in  execution,  even  though  such  pension 
be  given  solely  in  respect  of  past  services,  and 
the  officer  cannot  again  be  called  upon  to  serve : 
— Held,  that  an  order  appointing  a  receiver  of 
such  pension  was  bad.  Birch  v.  Birch  (8  P.  D. 
163)  approved ;  Bent  v.  Bent  (1  L.  B.,  P.  366) 
distinguished.  Lucas  v.  HarrU,  18  Q.  B.  D.  127  ; 
66  L.  J.,  Q.  B.  15  ;  55  L.  T.  668 ;  35  W.  B.  112  ; 
61  J.  P.  261— C.  A. 


PERJURY. 

See  CBIMINAL  LAW,  II.  22. 


PERSONATION. 

See  ELECTION    LAW,  L  2,  f. 


PETITION  OP  RIGHT. 

See  CBOWN. 


PERPETUITIES. 


Covenant  in  Mining  Lease.] — Sec  Morgan  v. 
Bavey,  ante,  col.  1224. 

Beservation  in  Sale  of  Land.] — Sec  Vendor 
and  Purchases. 

Under  Wills.]— Sec  Will. 


PHARMACY  ACT. 


Sec  MEDICINE. 


PHYSIC    AND   PHYSICIAN. 

See  MEDICINE. 


PICTURES. 

Set  COPYBIGHT. 


PIER. 


See  SHIPPING. 


PILOTS   AND  PILOTAGE. 


See  SHIPPING. 


PLEADING. 

See  PBACTICE. 


PLEDGE. 


See  PAWNBBOKEB. 


PLENE  ADMINISTRATOR 

See  EXECUTOB  AND  ADMINISTBATOB,  Y. 


POLICE. 

County— Violation  of  Duty— Beeeiving  flit- 
tnity — Bules.] — C,  a  constable  appointed  under 
2  &  3  Vict.  c.  93,  received  a  book  of  rales  and 
regulations  purporting  to  be  made  and  signed  by 
the  chief  constable.  One  rule  forbade  a  constable 
to  receive  a  gratuity  from  any  person  for  any- 
thing relating  to  his  duty,  without  the  chief 
constable's  permission  in  writing.  C.  one  daj 
called  for  the  licensing  fees  at  a  publican's,  and 
received  the  fees  and  a  gratuity  : — Held,  that  C. 
was  rightly  convicted,  under  2  &  3  Vict  c  93, 
s.  12,  of  violation  of  duty,  and  that  the  rule* 
made  by  the  chief  constable  were  good  evident* 
of  the  nature  of  his  duties.  Chit  holm  v.  BelUnd* 
50  J.  P.  197— D. 

Prosecution  by  Individual — Independent  Pit- 
Mention  by  Police.]  —  Where  the  principal 
person  interested  in  prosecuting  a  prisoner  i» 


1365 


POLICE. 


1366 


desirous  of  conducting  the  prosecution,  he  is 
entitled  to  do  so,  and  to  be  allowed  the  costs  of 
the  prosecution.  In  a  case  of  aggravated  assault 
by  a  prisoner  on  his  wife,  the  wife  retained  a 
solicitor  to  prosecute  her  husband.  In  pursuance 
of  this  retainer,  the  solicitor  prepared  and  de- 
lirered  a  brief  to  counsel  at  the  assizes  with 
instructions  to  conduct  the  prosecution.  A  con- 
stable of  the  county  had  been  bound  over  by 
recognizances  to  prosecute,  and  the  clerk  to  the 
magistrates,  as  was  the  usual  custom,  prepared 
and  delivered  a  brief  to  counsel  to  prosecute  : — 
Held,  that  the  conduct  of  the  prosecution  should 
not  be  taken  out  of  the  hands  of  the  person 
principally  interested,  if  that  person  wished  to 
undertake  it  Reg.  v.  Yates  (7  Cox,  C.  C.  361) 
distinguished.  Reg.  v.  Bnskell,  52  J.  P.  136  ; 
16  Cox,  C.  C.  367— Coleridge,  C.  J. 

Power  of  Local  Authority  to  Delegate  Prose- 
eition  to  Police.] — A  local  board  acting  under 
an  act  which  embodied  the  provisions  of  s.  259  of 
the  Public  Health  Act,  1875,  passed  a  resolution 
that  "  in  pursuance  of  the  power  vested  in  the 
board  by  s.  259  of  the  Public  Health  Act,  1875, 
the  superintendent  and  the  sergeants  of  the 
county  police,  for  the  time  being  acting  within 
the  district,  be  authorised  as  officers  of  the  board 
to  institute  and  prosecute  all  such  proceedings 
as  may  be  necessary  under  the  specified  clauses 
of  the  local  act.  In  an  information  preferred 
by  the  superintendent  of  police  against  the 
appellant  for  an  offence  under  the  act : — Held, 
that  the  local  board  had  no  power  under  8.  259 
of  the  Public  Health  Act,  1875,  to  delegate  the 
prosecution  to  the  police,  who  are  not  officers  of 
the  board,  nor  under  their  control.  Kyle  v. 
Barber,  58  L.  T.  229  ;  52  J.  P.  501, 725  ;  16  Cox, 
C.  C.  378— D. 

Money  found  on  Prisoner  not  a  Debt  due  from 
Felice.] — Money  in  the  possession  of  a  prisoner 
which  is  taken  possession  of  by  the  police  upon 
his  apprehension,  and  retained  by  them  after  his 
conviction,  does  not  render  the  police  debtors 
to  the  prisoner,  and  is  not  a  debt  which  can  be 
attached  under  garnishee  proceedings.  Bice  v. 
Jarxit,  49  J.  P.  264— D. 

Taking  Possession  of  Goods— Effect  of  War- 
rant]—The  police  have  power  under  a  warrant  -prtTTrrtr   /ttihts"     ptdp     a  tot* 
for  the  arrest  of  a  person  charged  with  stealing  |  *  vliilLr  X     I  JLilJT  Hi,    J?  lit  Hi,    HJX  U 

goods  to  take  possession  of  the  goods  for  the  pur- 1  Iff  AJEIINE). 

poses  of  the  prosecution.    A  person  therefore  is 

justified  in  refusing  to  hand  over  goods  to  one .  ^  INSURANCE, 

claiming  to  be  the  owner,  if  such  person  has 
been  entrusted  with  them  by  the  police,  who 
hive  taken  possession  of  them  under  such  cir- 
cumstances. Tyler  v.  London  and  South 
Western  Railway,  1  C.  k  E.  285— Huddleston, 
B. 


fendant  D.,  being  such  peace  officer,  appeared 
before  a  justice  of  the  peace  of  the  county  in 
which  such  acts  were  committed,  and  made 
complaint  to  him  on  oath  in  writing  of  such 
conspiracy,  and  of  the  overt  acts  committed 
within  the  county,  and  that  the  justice,  by 
warrant,  commanded  the  defendant  0.,  being 
such  peace  officer,  and  his  assistants,  as  one  of 
whom  D.  justified,  to  arrest  the  plaintiff,  and 
bring  him  before  the  justice  to  answer  the  com- 
plaint ;  that  the  defendants,  in  execution  of  the 
warrant,  arrested  the  plaintiff,  who  was  then, 
with  others  of  the  parties  to  the  said  conspiracy,, 
engaged  in  certain  acts  in  furtherance  of  and  as 
part  of  the  said  conspiracy,  and  in  possession  of 
the  chattels,  all  of  which  were  being  used  for 
the  purpose  of  such  combination  and  conspiracy  ; 
and  at  the  time  of  the  arrest  the  defendants 
necessarily  seized,  took,  and  detained  the  chattels 
for  the  purpose  of  producing  the  same  as  evidence 
in  the  prosecution  of  the  plaintiff  and  others  for 
so  combining  and  conspiring,  and  the  same  were 
material  and  necessary  in  the  said  prosecution 
which  had  been  since  the  arrest,  and  was  at  the 
delivery  of  the  defence,  still  pending : — Held,  on 
demurrer,  a  good  defence.  The  right  of  peace 
officers,  under  such  circumstances,  to  take  and 
detain  evidence  of  crime,  is  not  restricted  to 
cases  of  treason  and  felony,  but  extends  to  cases 
of  misdemeanour.  Dillon  v.  O'Brien,  20  L.  R., 
Ir.  300 ;  16  Cox,  C.  C.  245— Ex.  D. 

Notice  of  Action— Special  Venue.] — S.  19  of 

1  &  2  Will.  4,  c.  41,  by  which,  in  all  actions  for 
anything  done  in  pursuance  of  that  act,  the 
venue  is  to  be  local,  and  the  defendant  is  to  receive 
notice  of  action,  applies  only  to  such  acts  as  a 
constable  might  at  the  date  of  the  statute  have 
been  called  upon  to  perform  ;  therefore  the  sec- 
tion does  not  apply  in  the  case  of  a  constable 
acting  under  the  Contagious  Diseases  (Animals) 
Act,  1878.  Bryson  v.  Russell,  14  Q.  B.  D.  720  ; 
54  L.  J.,  Q.  B.  144  ;  52  L.  T.  208  ;  33  W.  R.  34  ; 
49  J.  P.  293— C.  A. 


Powers — Arrest  under  Warrant— Taking  and 
Detention  of  Chattels — Misdemeanour.]— In  an 
action  for  trover  and  detinue  of  chattels  of  the 
plaintiff,  and  for  taking  the  same  forcibly  from 
the  plaintiff  under  circumstances  constituting  an 
assault,  the  defendants  O.  and  D.,  who  were 
peace  officers,  pleaded  that  before  and  at  the  time 
of  the  acts  complained  of,  the  plaintiffs  and 
others  had  conspired  and  combined  to  do  certain 
ects,  amounting  to  an  indictable  conspiracy  at 
common  law,  and  did  certain  acts  in  furtherance 
of  and  as  part  of  the  conspiracy ;  that  the  de- 


POLL. 

At  Parliamentary  Elections.] — See  Election 
Law. 

At  Shareholders'  Meetings.]— &*  Company, 
IX. 


1867 


POOR    LAW— Authorities. 


1368 


POOR  LAW. 

I.  AUTHOBITIE8,  1367. 

II.  Poor  Rates. 

1.  Persons  and  Prop-rty  Liable,  1369. 

2.  Proceedings. 

a.  Payment  and  Recovery,  1377. 

b.  Valuation  List  and  Appeal,  1380. 

III.  Settlement  and  Removal  of  Paupers, 

1381. 

IV.  Maintenance  and  Relief  of  Paupers, 

1386. 

V.  Workhouses,  1388. 


I.    AUTHORITIES. 

Guardian* — Disqualification  of— Payment  out 
of  Fundi  raited  in  a  Poor-rate.]— The  act 
5  &  6  Vict  c.  57,  a.  14,  which  enacts  that 
''no  person  receiving  any  fixed  salary  .  .  .  . 
from  the  poor-rates  in  any  parish  or  union  shall 
be  capable  of  serving  as  a  guardian  in  such 
parish  or  union,"  does  not  apply  to  the  clerk  of 
a  highway  board  or  of  a  school  board  whose 
salary  is  paid  out  of  the  highway  or  school  board 
fund  collected  as  a  poor-rate  by  the  overseers  in 
pursuance  of  precepts  issued  to  them  under  the 
Highway  Act,  1864  (27  &  28  Vict.  c.  101)  or  the 
Elementary  Education  Act,  1870  (33  &  34  Vict, 
c  75)  respectively.  Reg.  v.  Rawlins,  Reg.  v. 
Dibbin,  15  Q.  B.  D.  382 ;  54  L.  J.,  Q.  B.  557 ; 
TX)  J.  P.  5— C.  A.    Affirming  52  L.  T.  436— D. 


Contracts — Employment  of  Soman  Ca- 
tholic Priest  for  Workhouse.] — By  a  general 
order  of  the  Poor  Law  Board,  dated  the  19th 
of  August,  1867,  it  was  provided  that  the 
guardians  might  employ  such  persons  as  they 
should  deem  requisite  in  or  about  the  work- 
house or  workhouse  premises,  or  on  the  land 
occupied  for  the  employment  of  the  pauper 
inmates  of  the  workhouse,  or  otherwise  in  or 
about  the  relief  of  the  indoor  poor,  upon  such 
terms  and  conditions  as  should  appear  to  them  to 
be  suitable  : — Held,  that  under  this  order,  it  was 
competent  to  the  guardians  to  appoint  and  pay 
a  Roman  Catholic  clergyman  to  minister  to  the 
religious  wants  of  the  Roman  Catholic  inmates 
of  the  workhouse.  Reg.  v.  Haslehurst,  13  Q.  B. 
D.  253  ;  53  L.  J.,  M.  C.  127  ;  51  L.  T.  95  ;  32 
W.  R.  877  ;  48  J.  P.  774— D. 

Contracts— Commission  paid  for  obtain- 
ing Loan.] — The  guardians  of  a  union  being 
authorised  to  raise  4,0002.  Dy  loan,  advertised 
for  tenders,  received  six,  and  accepted  one, 
which  was  from  an  agent,  offering  the  sum  at 
a  certain  rate  of  interest,  and  charge  for  com- 
mission. The  guardians  accepted  this  offer,  and 
paid  by  cheque  oOl.  for  commission.  The  auditor 
disallowed  38Z.  10*.,  part  of  the  commission, 
and  surcharged  one  of  the  guardians  with  that 
sum  as  having  been  illegally  paid: — Held, 
that  the  auditor  was  wrong,  as  there  was  no 
rule  against  paying  commission  for  getting  a 
loan  if  in  the  circumstances  the  terms  were  the 


most  advantageous  to  the  ratepayers.   Uej.  v. 
Haslehurst,  51  J.  P.  645— D. 


Solicitor  to— Taxation  of  Costa  by  Gktk 


of  the  Peace— Taxation  between  Solicitor  ud 
Client.] — A  solicitor  employed  by  guardians  of 
the  poor  is  entitled,  notwithstanding  that  bis 
bill  of  costs  has  been  taxed  by  the  clerk  of  the 
peace  under  the  Poor  Law  Amendment  Act, 
1844  (7  &  8  Vict.  c.  101),  s.  39,  to  an  order  for 
taxation  as  between  solicitor  and  client  under 
the  Attorneys  and  Solicitors  Act,  1843  (6  k  7 
Vict.  c.  73),  s.  37.  Southampton  Guardians  y. 
Bell,  21  Q.  B.  D.  297  ;  59  L.  T.  181 ;  36  W.  B. 
924  ;  52  J.  P.  567— D. 

Aoting  as  Rural  Sanitary  Authority— 

Limitation  of  Actions.] — Section  1  of  the  act 
22  &  23  Vict    c.  49,  enacts   that  any  debt, 
claim,  or  demand  which  may  be  lawfully  in- 
curred by  or  become  due  from  the  guardians  of 
any  union  or  parish  shall  be  paid  within  the 
half-year  in  which  the  same  shall  have  been  in- 
curred or  become  due,  or  within  three  months 
after  the  expiration  of  such  half-year,  bat  not 
afterwards.    By  s.  9  of  the  Public  Health  Act, 
1875,  the  guardians  of  a  rural  union  shall  form 
the  rural  sanitary  authority  of  that  district,  and[ 
"  all  statutes,  orders,  and  legal  provisions  appli- 
cable to  any  board  of  guardians  shall  apply  to 
them  in  their  capacity  of  rural  authority  under 
this  act  for  the  purposes  of  this  act "  :— Held, 
that  s.  9  of  the  Public  Health  Act,  1875,  do* 
not  extend  the  limitation  of  time  imposed  by  8.1 
of  the  previous  act  to  debts  contracted  by  guar- 
dians in  their  capacity  of  rural  authority,  botl 
that  that   limitation  still  remains   applicable 
only  to  debts  contracted  by  guardians  as  such. 
Dearie  v.  Petersfield  Union,  21  Q.  B.  D.  447 ;  57 
L.  J.,  Q.  B.  640 ;   60  L.  T.  85  ;  37  W.  R.  113;| 
53  J.  P.  102— C.  A. 


Recovery  of  Expenses  of  Hpintenano* ' 


Paupers.]— See  post,  col.  1387. 

Auditors— Church  warden  not  Attending  Ai 
of  Accounts — Conviction.] — The  mere  at 
of  a  churchwarden  from  the  audit  of  the 
law  accounts  of  his  parish,  due  notice  hai 
been  given,  is  not  sufficient  in  itself  to  si 
a  conviction  for  wilful  disobedience  of  the 
of  the  Poor  Law  Commissioners  under  the  tt 
section  of  4  &  5  Will.  4,  c.  76.  A  churchi 
who  failed  to  attend  the  audit  of  the  poor  lai 
accounts  of  his  parish,  was  convicted  of 
wilful  neglect,  or  disobedience  of  the 
orders,  and  regulations  of  the  Poor  Law 
missioners  under  the  98th  section  of  4  &  5  Wil 
4,  c.  76  :— Held,  that,  as  he  had  taken  no 
in  the  poor  law  administration  of  the  parish ; 
the  churchwardens  had  not  usually  attend 
the  audit,  and  no  intimation  had  been  give 
that  their  absence  had  interfered  with  the  trans- 
action of  the  business ;  and  as  the  notice  of 
audit,  under  7  &  8  Vict  c.  101,  s.  33,  contained 
an  intimation  that  it  was  "  requisite  that  one  at 
least  of  the  overseers  "  should  personally  attend 
the  audit,  as  well  as  the  assistant  overseer,  he 
might  reasonably  have  supposed  that  his  atten- 
dance was  not  necessary;  and  that  the  con- 
viction must  be  quashed.  Holgate  v.  Brett,  58 
L.  T.  452  ;  36  W.  R.  471  ;  52  J.  P.  661— D. 

Overseers— Opposing  Bill  in  Parliament— Al- 


1869 


POOR    LAW— Poor  Rates. 


1870 


towaacs  of  Expenses  by  Auditor.]— The  over- 
seen of  a  parish  are  entitled  to  defray  oat  of  the 
poor-rate  such  reasonable  and  moderate  expenses 
u  hare  been  incurred  by  them  at  the  request  of 
the  vestry  in  resisting  an  attempt  by  private 
individuals  to  impose  an  extra  burden  on  the 
poor-rate  by  means  of  a  bill  in  Parliament  pro- 
posing to  give  power  to  charge  the  poor-rate 
with  the  payment  of  interest  on  the  share 
capital  of  the  undertaking.  Reg.  v.  Sibly,  Reg. 
t.  Vkrte,  14  Q.  B.  D.  368  ;  54  L.  J.,  M.  0. 
23 ;  52  L.  T.  116 ;  33  W.  R.  248  ;  49  J.  P.  294 


Assistant  Overseer  —  Election— Warrant  of 
Jutissi— Jurisdiction.]— After  an  election  of 
sa  assistant  overseer  by  the  vestry,  the  two  jus- 
tices who  are  empowered  by  59  Geo.  3,  c.  12,  s.  7, 
to  appoint  the  officer  by  warrant  have  no  power 
to  inquire  into  the  validity  of  such  election. 
Be*,  v.  Skepley,  22  Q.  B.  D.  96  ;  58  L.  J.,  M.  C. 
6 ;  59  L.  T.  696  ;  37  W.  R.  27  ;  68  J.  P.  261— D. 


II.  POOB  RATBS. 

1.  PERSONS  AND  PROPERTY  LIABLE. 

"  Occupier  "— Possesion  by  Caretaker.]— H. 
is  owner  of  a  house  of  seventeen  rooms  and 
premises  usually  of  83/.  rateable  value,  but  the 
boose  being  advertised  to  be  let  for  two  years, 
he  pot  into  it  G.,  as  a  caretaker,  giving  him 
*».  W.  per  week,  and  the  rooms,  which  G.  and 
his  family  occupied  rent  free.  G.  was  to  show 
the  house  and  was  bound  to  leave  at  a  week's 
notice :— Held,  that  H.  was  the  occupier  of  the 
house  by  means  of  G.  as  servant,  and  was  pro- 
perly rated  to  the  poor  as  such  occupier.  Hicks 
v.  Dunstable  Overseer*,  48  J.  P.  326— D. 

Aivtrtising  Hoardings— Agreement  creating 
Isuaey.]— By  an  agreement  between  an  owner 
of  land  and  an  advertising  agent  the  owner 
agreed  to  let  and  the  agent  to  take  an  adver- 
tising station  at  a  yearly  rent,  the  tenancy  to 
commence  from  completion  of  erection  and  con- 
tinue seven  years,  and  the  agent  agreed  to  pay 
mtes  and  taxes.  By  another  agreement  an 
owner  agreed  to  allow  the  advertising  agent  the 
privilege  of  erecting  an  advertising  hoarding, 
the  agent  to  pay  a  yearly  rent,  and  the  owner 
agreed  to  allow  the  agent  the  further  privilege 
of  removing  a  wall,  the  agreement  to  remain  in 
force  for  three  years,  and  be  afterwards  ter- 
minable by  twelve  months'  notice,  but  if  the 
owner  should  be  obliged 'to  give  less  than  twelve 
months1  notice  he  agreed  to  refund  201.  In 
both  agreements  the  dimensions  of  the  hoardings 
to  be  erected  were  specified.  Advertising  hoard- 
ings supported  on  posts  fixed  into  the  ground 
**re  erected.  In  the  first  case  the  structure 
***  used  partly  by  the  owner  as  a  shed,  and 
partly  by  the  advertising  agent  as  a  hoarding ;  in 
the  second  case  exclusively  by  the  agent  as  a 
boarding : — Held,  that  each  of  the  agreements 
nested  a  tenancy,  and  conferred  an  exclusive 
occupation,  and  not  merely  a  licence,  and  there- 
to the  advertising  agent  was  liable  to  be  rated 
to  the  relief  of  the  poor  in  respect  of  both 
noaidings  as  occupier  of  advertising  stations, 
ftykr  t.  Pendleton  Overseers,  19  Q.  B.  D.  288  ; 
«  L  J.,  M.  C.  146;  67  L.  T.  630;  35  W.  R.  762 ; 
«  J.  P.  613— D. 


Ambassador— Attache— Liability  for  Bates  on 
Private  Residence.] — An  attache  to  an  ambas- 
sador of  a  foreign  state  residing  in  this  country 
is  not  liable  for  rates  assessed  on  his  private 
residence.  Parkinson  v.  Potter,  16  Q.  B.  D. 
152  ;  55  L.  J.,  Q.  B.  153;  53  L.  T.  818  ;  34  W.  R. 
215  ;  50  J.  P.  470— D. 

Charity  —  Railway  Servants'  Orphanage  — 
Local  Act.] — By  a  Local  Improvement  Act, 
6  Geo.  4,  c.  exxxii.,  s.  103,  the  commissioners  of 
a  town  were  authorised  to  make  district  rates 
for  defraying  the  expenses  of  the  act,  provided 
that  none  of  the  rates  or  assessments  which 
should  be  made  by  virtue  of  the  act  should  be 
laid  upon  or  in  respect  of  any  houses  or  buildings 
used  and  occupied  exclusively  for  the  purposes 
of  public  charity : — Held,  that  an  orphanage 
founded  and  used  for  the  purpose  of  boarding, 
lodging,  clothing,  and  educating  the  children  of 
deceased  railway  servants,  and  supported  partly 
by  subscriptions  from  railway  servants,  but 
mainly  by  donations  from  the  public,  was  open 
to  such  an  extensive  class  of  the  community  of 
the  kingdom,  that  the  premises  were  used  and 
occupied  exclusively  for  the  purposes  of  "  public 
charity,"  within  the  proviso  of  the  act,  and 
therefore  exempt  from  rateability  under  it. 
HaUy.  Derby  Sanitary  Authority,  16  Q.  B.  D. 
163 ;  55  L.  J.,  M  C.  21  ;  54  L.  T.  175  ;  50  J.  P. 
278— D. 

Fishery — "Expenses  necessary  to  command 
Rent."] — By  a  Local  Fishery  Act,  passed  for 
the  preservation  and  increase  of  salmon,  com- 
missioners were  empowered  to  raise  a  rate  from 
every  owner  of  a  fishery  in  a  large  district  for 
the  purposes  of  the  act.  The  appellant  was 
tenant  of  a  fishery,  for  which  be  paid  a  rent  of 
3051.,  and  a  rate  of  612.  to  the  commissioners : — 
Held,  that  in  ascertaining  the  rateable  value  of 
his  property,  the  amount  of  the  rate  should  be 
deducted,  for  that  it  was  an  "  expense  necessary 
to  maintain  the  property  in  a  state  to  command 
such  rent,"  and  so  allowed  to  be  deducted  under 
s.  I  of  the  Parochial  Assessment  Act,  1834.  Reg. 
v.  Smith,  55  L.  J.,  M.  C.  49  ;  54  L.  T.  431  ; 
50  J.  P.  215— D. 

Harbour  Dues — Additional  Duty  for  use  of 
Wet  Bock.] — Commissioners  were  appointed  by 
a  local  Act  of  Parliament  for  the  improvement 
of  a  harbour,  with  power  to  impose  tonnage  dues 
upon  all  ships  using  the  harbour,  and  other  dues 
called  shore  dues  on  goods  shipped  from  or 
landed  on  the  quays.  The  soil  of  the  harbour 
did  not  belong  to  the  commissioners,  but  that  of 
the  quays  was  vested  in  them,  and  they  were 
accordingly  rated  to  the  poor-Tate  in  respect  of 
the  shore  dues,  but  not  in  respect  of  the  tonnage 
dues.  By  a  subsequent  act  the  commissioners 
were  empowered  to  construct  a  wet  dock,  and 
fresh  dues  were  substituted  for  those  previously 
authorised,  the  shore  dues  on  goods  being  much 
the  same  as  those  which  previously  existed, 
except  that  additional  dues  were  payable  on 
completion  of  the  wet  dock  on  goods  loaded  or 
discharged  in  the  dock,  or  exported  or  imported 
in  vessels  of  a  tonnage  of  100  tons  or  upwards, 
and  new  tonnage  dues  for  vessels  entering  or 
leaving  the  harbour ;  those  for  vessels  under  100 
tons  being  practically  the  same  as  those  previ- 
ously imposed,  and  those  for  vessels  above  100 
tons  being  higher,  and  it  was  also  provided  that 


1871 


POOR    LAW— Poor  Rates. 


1872 


for  every  vessel  entering  the  wet  dock  there 
should  be  an  additional  tonnage  duty  : — Held, 
that  in  assessing  the  commissioners  to  the  poor- 
rate  in  respect  of  the  dock,  the  additional  dues 
paid  by  ships  entering  the  dock  ought  only  to  be 
taken  into  account,  and  not  the  harbour-duty 
payable  by  such  vessels  exclusive  of  the  addi- 
tional dues.  Reg.  v.  King  ston-upon- Hull  Docks 
(7  Q.  B.  2),  distinguished.  Meg.  v.  Berwick 
Assessment  Committee,  16  Q.  B.  D.  493;  55  L.  J., 
M.  C.  84 ;  54  L.  T.  159  ;  50  J.  P.  71  ;  5  Asp. 
M.  C.  532— D. 

Lighthouses — Occupation  of  Publio  Trustees 
—Merchant  Shipping  Act,  1851,  s.  480.]— The 

appellants  appealed  against  a  poor-rate  made  by 
the  respondents  in  respect  of  a  lighthouse,  tele- 
graph station,  houses,  buildings,  and  land  in  the 
parish  of  Llaneilian.  The  appellants  were  in- 
corporated as  a  body  of  public  trustees  by  the 
Mersey  Docks  and  Harbour  Act,  1857,  and  the 
property,  powers,  rights,  and  privileges  of  the 
Liverpool  Dock  Trustees,  including  the  right  to 
levy  certain  harbour  and  light  dues  on  vessels 
entering  the  port  of  Liverpool,  were  vested  in 
the  appellants.  The  tolls  were  so  fixed  that,  with 
the  other  receipts  of  the  appellants  applicable 
to  conservancy  purposes,  they  should  not  be 
higher  than  necessary  for  conservancy  expendi- 
ture, and  therefore  no  profits  were  receivable  by 
the  appellants  from  the  occupation  of  any  of  the 
property.  The  lighthouse  consisted  of  a  tower 
and  a  dwelling-house  adjoining.  In  the  tower 
there  was  the  light-room,  and  also  a  room  used 
for  working  a  telegraph  wire  from  Birkenhead 
to  Holyhead,  maintained  by  the  Postmaster- 
General  for  the  exclusive  use  of  the  appellants 
under  an  agreement.  The  dwelling-house  and 
other  premises  were  occupied  by  servants  of  the 
appellants.  The  tower  of  the  lighthouse  had  no 
occupation  value  except  as  a  lighthouse  and  a 
telegraph  station  : — Held,  that  the  tower  was 
incapable  of  profitable  occupation  as  a  light- 
house, and  was  not  rateable  to  the  relief  of  the 
poor,  but  that,  with  respect  to  the  adjoining 
nouses,  it  having  been  found  as  a  fact  that  their 
value  was  enhanced  from  being  used  in  con- 
nexion with  the  tower,  the  assessment  on  that 
footing  was  correct.  Mersey  Bocks  and  Harbour 
Board  v.  Llaneilian  Overseers,  14  Q.  B.  D.  770  ; 
54  L.  J.,  Q.  B.  49  ;  62  L.  T.  118  ;  33  W.  R.  97  ; 
49  J.  P.  164  ;  5  Asp.  M.  C.  358— C.  A. 

The  430th  section  of  the  Merchant  Shipping 
Act  is  only  applicable  to  lighthouses  under  the 
control  of  the  general  lighthouse  authorities. 
lb.,  51  L.  T.  62  ;  48  J.  P.  391 ;  5  Asp.  M.  C.  248 
— D. 

Machinery — Machines  used  in  connexion  with 
Hereditament,  but  remaining  Personal  Pro- 
perty.]— In  estimating  the  rateable  value  of 
premises  used  as  a  manufactory,  machinery  and 
plant  placed  thereon,  for  the  purpose  of  making 
them  fit  as  premises  for  such  a  manufactory,  are 
to  be  taken  into  account  as  enhancing  the  value 
of  the  hereditament,  although  such  machinery 
and  plant  remain  personal  property,  and  are  not 
physically  attached  to  the  premises.  Tyne  Boiler 
Works  Co.  v.  Longbenton  Overseers  or  Tynemouth 
Union,  18  Q.  B.  D.  81 ;  56  L.  J.,  M.  C.  8  ;  55  L.  T. 
825  ;  35  W.  R.  110 ;  51  J.  P.  420— C.  A. 

Police — House  occupied  by  Officer. J—  M.,  a 
-sergeant  of  county  police,  with  his  wife,  were 


obliged  to  occupy  a  cottage  distant  two  miles 
from  the  nearest  county  police-station,  and 
another  constable  also  occupied  part  of  the  same 
house,  the  chief  constable  paying  the  rent  oat  of 
the  county  rate.  There  were  no  cells  attached, 
nor  was  any  room  set  apart  for  county  police 
business  to  be  done  there,  but  sometimes  com- 
plaints were  made  there,  and  summonses  signed 
by  magistrates.  M.  was  assessed  to  the  poor- 
rate  : — Held,  that  M.  was  not  exempt,  on  the 
ground  that  the  house  was  occupied  by  him  in 
the  discharge  of  his  duties  as  constable  or  other- 
wise. Macharg  v.  Stokc-upon-Trent  Assessment 
Committee,  48  J.  P.  775— D. 

Publio  Purposes  connected  with  Govemmeit 
—Middlesex  Sessions  House.] — By  an  act  passed 
in  1777  justices  were  empowered  to  buy  land 
and  build  a  sessions  house,  which  was  not  to  be 
rated  at  a  higher  figure  than  the  assessment  of 
the  site  at  the  date  of  the  act.  In  1879  the 
justices,  acting  under  further  statutory  powers, 
bought  additional  land,  and  built  additions  and 
enlargements  to  the  sessions  house.  The  sessions 
house  with  the  additions  was  used  solely  for  the 
administration  of  justice,  the  performance  oi  the 
Queen's  service,  and  the  discharge  of  the  public 
business  of  the  county.  An  officer  employed  in 
the  business  of  the  sessions  resided  on  the  pre- 
mises with  his  family.  From  1777  to  1879  the 
sessions  house  was  rated  at  the  assessment  of 
1 777.  Afterwards  the  assessment  was  raised  and 
the  justices  appealed  : — Held,  that  the  buildings 
being  used  for  public  purposes  connected  with 
the  government  of  the  country  were  not  liable 
to  be  rated  to  the  poor-rate,  for  the  case  came 
within  the  principle  of  (bomber  v.  Berkshire 
J  J.  (9  App.  Cas.  61),  and  neither  the  ptori- 
sions  of  the  act  of  1777,  nor  the  fact  that  a  rate 
at  the  valuation  named  in  that  act  had  been 
acquiesced  in  and  paid,  deprived  the  justices  of 
their  right  to  contest  the  rateability  of  the  pre- 
mises. Nicholson  v.  Holborn  Union,  18  Q.  B.  D. 
161 ;  56  L.  J.,  M.  C.  54  ;  55  L.  T.  775 ;  35  W.  R. 
230  ;  51  J.  P.  341— D. 

Railway— Leased  line  when  not  to  be  treated 
as  integral  Part  of  leasing  Company's  Bystea, 
but  as  independent  Line.] — A  railway  company 
constructed  under  the  powers  of  their  act  a  line 
which  formed  a  connecting  link  between  the 
lines  of  three  other  companies,  and  for  some 
time  retained  possession  of  such  line,  taking  tolls 
for  the  use  of  it  by  such  other  companies.  Sub- 
sequently, by  an  agreement  between  the  firet- 
mentioned  company,  therein  called  u  the  lessors," 
and  the  three  other  companies,  therein  called 
"the  lessees,"  which  agreement  was  confirmed 
by  and  was  to  have  the  same  effect  as  if  its 
provisions  had  been  enacted  in  an  Act  of  Parlia- 
ment, the  line  was  leased  to  the  lessees  in  per- 
Eetuity  at  an  annual  rent,  and  the  lessees  were 
y  such  act  empowered  to  use,  and  they  did  ose, 
such  line  in  connexion  with  their  respective 
systems  without  payment  of  tolls.  The  exist- 
ence of  the  said  first-mentioned  company  was 
continued  by  the  confirming  act  for  certain  pur- 
poses, such  as  the  receipt  of  the  yearly  rent  and 
its  distribution  among  the  shareholders  and 
there  was  a  provision  in  the  agreement  which  by 
necessary  implication  gave  power  to  the  lessees 
to  let  the  line  with  the  consent  of  the  lesson 
under  seal : — Held,  that,  having  regard  to  the 
provisions  of  the  agreement  and  of  the  act  eon- 


1378 


POOR   LAW— Poor  Rates. 


1874 


finning  it,  the  rateable  value  of  the  line  for  the 
purposes  of  the  poor-rate  was  not  to  be  ascer- 
tained as  if  it  were  an  integral  portion  of  the 
lines  of  the  three  companies  using  it,  but  was  to 
be  based  upon  the  rent  which  a  tenant  from  year 
to  year  might  reasonably  be  expected  to  give  for 
it  ss  an  independent  line.  Xorth  and  South 
Western  Junction  Railway  v.  Brentford  Union, 
18  Q.  B.  D.  740 ;  56  L.  J.,  M.  C.  101 ;  57  L.  T. 
4» ;  35  W.  R.  640  ;  51  J.  P.  772— C.  A.  Re- 
ferred back  to  arbitrator,  see  post,  col.  1381. 

Fixed   Rent — Running    Powers.] — The 

special  act  which  authorised  the  making  of  a 
railway  by  the  C.  company,  provided  that  the  L. 
company  should  have  the  right  to  run  their 
tame  over  a  part  of  the  line,  on  payment  of  a 
fixed  annual  rent  to  the  C.  company.  The  rent 
was  much  less  than  the  actual  value  of  the 
traffic  passed  over  that  part  of  the  line  by  the 
L.  company  : — Held,  that  the  C.  company  could 
not  be  rated  for  poor-rate  in  respect  of  that 
traffic  at  a  higher  sum  than  the  fixed  rent. 
AUrincham  Union  v.  Cheshire  Lines  Committee, 
15  Q.  B.  D.  597  ;  50  J.  P.  85— C.  A. 

Sector's  Rate — Payment  in  Lien  of  Tithes.] — 
By  a  local  act  the  parish  of  F.  was  constituted  a 
separate  parish,  and  it  was  provided  that  the 
parson  should  receive  the  tithes  within  the  limit 
of  the  parish.  It  was  further  provided  that  the 
corporation  of  the  town  of  F.,  which  was  in  the 
parish,  should  levy  a  rate  called  "  the  rector's 
rate"  on  all  houses,  shops,  warehouses,  cellars, 
and  outhouses,  with  the  appurtenances,  then 
being,  or  which  should  at  any  time  thereafter 
be  built  in  the  town,  after  the  rate  of  sixteen- 
pence  in  the  pound,  and  pay  the  same  to  the 
parson  of  the  parish.  When  houses,  shops,  ware- 
houses, cellars,  and  outhouses,  with  the  appur- 
tenances, had  been  built  on  land  liable  to  tithe, 
tithe  had  not  been  collected  in  respect  thereof. 
The  defendant,  the  parson  of  the  parish,  was 
rated  to  the  relief  of  the  poor  in  respect  of  the 
rector  s  rate  : — Held,  that  although  under  43 
Elk.  c.  2,  a  parson  is  rateable  as  an  inhabitant 
in  respect  of  tithes  and  money  payments  in  lieu 
of  titnes,  yet  the  defendant  was  not  liable  in 
respect  of  the  rector's  rate,  which  was  not  a  pay- 
ment in  lieu  of  tithes,  inasmuch  as  it  was  levied 
on  land  which  would  not,  on  default  of  pay- 
ment of  the  rector's  rate,  be  liable  to  tithes. 
Beg.  v.  Christopherson,  16  Q.  B.  D.  7  ;  55  L.  J., 
M.  C.  1 ;  53  L.  T.  804  ;  34  W.  R.  86 ;  50  J.  P. 
212— C.  A. 

Reformatory  School.  ] — A  reformatory  school, 
which  has  been  certified  under  the  Reformatory 
Schools  Act,  1866,  is  rateable  to  the  poor-rate. 
Skeppard  ▼.  Bradford  (16  C.  B.,  N.  S.  369), 
overruled.  Tunnieliffe  v.  Birkdale  Overseers, 
»  Q.  B.  D.  460  ;  59  L.  T.  190  ;  36  W.  R.  360; 
52  J.  P.  452— C.  A. 

lefeool  Board— Hypothetical  Tenant.]— In 
assessing  to  the  poor-rate  schools  occupied  by  a 
school  board,  which  can  make  no  profit  in  a 
commercial  sense  as  tenants  of  the  schools,  the 
school  board  itself  ought  to  be  considered  as  a 
possible  tenant,  and  the  gross  and  rateable  values 
caknlated  by  the  rent  which  the  board  might 
reasonably  be  expected  to  pay  for  the  premises 
for  nee  as  schools.  Beg.  v.  London  School  Board 
or  London  School  Board  v.  St.  Leonards,  Shore* 


'  ditch,  17  Q.  B.  D.  738  ;  55  L.  J  ,  M.  C.  169  ;  55 
L.  T.  384  ;  34  W.  R.  583  ;  50  J.  P.  419—0.  A. 

Land  Owned  and  Land  Rented  by.] — A 


school  board  formed  under  the  Elementary 
Education  Act,  1870,  is  liable  to  be  assessed  to 
the  poor-rate,  both  in  respect  of  schools  built 
upon  land  belonging  to  the  board,  and  in  respect 
of  schools  rented  by  the  board  as  tenants,  even 
though  the  board  make  no  profit  out  of  such 
schools.  Reg.  v.  West  Bromwich  School  Board, 
or  West  Bromwich  School  Board  v.  West  Brom- 
wich Overseers,  13  Q.  B.  D.  929  ;  53  L.  J.,  M.  C. 
153  ;  52  L.  T.  164  ;  32  W.  R.  866  ;  48  J.  P.  808— 
C.  A. 

Telephone  Company's  Wires  —  Oconpation  of 
Land  by  Company.]  —  A  telephone  company 
were  possessed  of  an  exchange  by  means  of 
which  subscribers  could  communicate  by  tele- 
phone with  each  other,  and  also  of  wires  and 
telephone  apparatus  unconnected  with  the  ex- 
change for  the  use  of  persons  renting  them. 
For  the  purpose  of  this  business  they  laid  wires 
from  their  office  to  the  business  premises  of 
their  subscribers,  and  also  erected  wires  for  the 
use  of  those  who  rented  them.  All  these  wires 
were  overhead  wires  and  were  carried  from  the 
office  of  the  company  to  the  different  premises, 
being  supported  and  steadied  either  by  poles 
fixed  in  the  ground,  or  by  being  attached  to  the 
roofs,  chimneys,  or  walls  of  some  of  the  buildings 
over  which  they  passed.  The  attachments  were 
made  in  the  case  of  a  single  wire  by  an  iron 
spike  driven  into  the  building,  or  by  a  bolt 
screwed  into  the  ridge,  or  by  an  iron  bracket 
nailed  to  the  corner  of  the  chimney  to  which  the 
wire  was  attached,  or  in  the  case  of  a  number 
of  wires  by  means  of  standards  or  ridge-saddles 
attached  to  the  roofs  of  the  buildings  and 
fastened  by  iron  bolts  or  stays.  The  consent  of 
the  owners  or  occupiers  of  the  land  or  buildings 
was  given  by  agreements  in  which  the  company 
undertook  to  pay  an  annual  rent  and  remove 
the  wires  and  attachments,  upon  a  certain  notice. 
The  company  had  no  key  of  the  outside  doors, 
and  could  only  obtain  access  to  the  roofs  by 
the  permission  of  the  occupiers : — Held,  that 
upon  these  facts  there  was  proof  of  an  occupa- 
tion of  land  by  the  wires  of  the  company,  and 
that  they  were  rateable.  Lancashire  Telephone 
Company  v.  Manchester  Overseers,  14  Q.  B.  D. 
267  ;  54  L.  J.,  M.  C.  63  ;  62  L.  T.  793  ;  33  W.  R. 
203  ;  49  J.  P.  724— C.  A. 

Telegraph  Wires  —  Exclusive  Occupation — 
Licence  of  Exolusive  Use.] — By  agreement 
between  a  telegraph  company  and  the  Post- 
master-General, the  latter  covenanted  with  the 
company  that  he  would  provide,  and  thenceforth 
during  the  continuance  of  the  agreement  keep 
appropriated  and  maintain  for  the  exclusive 
use  of  the  company  certain  telegraph  wires, 
called  in  the  agreement  "special  wires," 
between  the  landing-place  of  a  foreign  tele- 
graphic cable  near  the  Land's  End  and  an 
office  of  the  company  at  Penzance,  and  thence  to 
their  office  in  London,  with  the  necessary  trans- 
lators for  working  them,  and  a  pneumatic  tube ; 
such  wires,  &c.,  to  remain  the  property  of  the 
Postmaster-General — the  Postmaster-General  to 
repair  all  accidental  defects  or  interruptions  to 
the  working  of  the  wires,  &c.,  but  to  be  paid  for 
making  good  any  damage  to  the  wires  occasioned 
by  the  neglect  or  default  of  the  company  or  their 


1875 


POOB   LAW— Poor  Rates. 


1876 


servants  ;  the  company  not  to  use  the  wires  for 
the  transmission  of  any  except  certain  speci- 
fied messages.  And,  in  consideration  of  the  ap- 
propriation and  maintenance  by  the  Postmaster- 
General  of  the  wires,  translators,  batteries,  and 
pneumatic  tube,  the  company  covenanted  to  pay 
nim  certain  rents ;  and  they  also  covenanted  not 
to  part  with  the  possession  of  the  special  wires  or 
any  of  them,  or  underlet  or  assign  the  benefit  of 
the  agreement,  without  the  consent  of  the  Post- 
master-General ;  and  that,  in  the  event  of  their 
doing  so,  the  Postmaster-General  was  to  be  at 
liberty  to  determine  the  contract  by  notice  ;  and 
it  was  further  provided  that,  upon  the  expiration 
or  determination  of  the  agreement,  it  should  be 
lawful  for  the  Postmaster-General  to  resume  the 
possession  of  the  special  wires,  &c.  The  tele- 
graph posts  remained  the  property  of  the  Post- 
master-General, and  carried  between  Penzance 
and  London  several  wires  beyond  those  appro- 
priated to  the  use  of  the  company  :— Held  (Lord 
Coleridge,  O.  J.,  doubting),  that  this  agreement 
did  not  give  the  company  such  an  exclusive 
occupation  of  the  special  wires  as  to  make  them 
rateable  to  the  relief  of  the  poor  in  respect 
thereof,  even  in  the  parish  where  the  special 
wires  were  the  only  wires  affixed  to  the  posts. 
Paris  and  iWto  York  Telegraph  Company  v. 
Penzance  Union,  12  Q.  B.  D.  552  ;  53  L.  J., 
M.  C.  189  ;  50  L.  T.  790;  32  W.  R.  859  ;  48  J.  P. 
693— D. 

Telegraph  Aot  —  Purchase  of  Premises  by 
Postmaster-General — Rateable  Value  at  Date  of 
Purchase.] — The  Telegraph  Act,  1868,  empowers 
the  Postmaster-General  to  purchase,  for  the 
purposes  of  the  act,  the  undertaking  (including 
land  and  property)  of  any  telegraph  company, 
and  8.  22  provides  that  all  land,  property  and 
undertakings  so  purchased  shall  be  assessable 
and  rateable  to  parochial  rates  at  sums  not 
exceeding  the  rateable  value  at  which  such 
land,  property  and  undertakings  were  properly 
assessed  at  the  time  of  such  purchase.  In  1870 
the  Postmaster-General  purchased  the  under- 
taking of  a  telegraph  company,  including  a 
house  held  by  the  company  under  a  lease  for 
twenty-one  years  from  September,  1867.  At  the 
time  of  the  purchase  a  portion  of  the  house  was 
subject  to  an  underlease  granted  by  the  company 
to  H.  for  the  remainder  of  the  term  less  one 
day,  and  containing  a  covenant  by  the  company 
to  pay  all  parochial  rates.  The  Postmaster- 
General  occupied  and  used,  for  telegraphic  pur- 
poses only,  the  portion  of  the  house  not  com- 
prised in  the  underlease  until  the  year  1878, 
when  he  demised  that  portion  to  others,  and 
thenceforth  no  part  of  the  house  was  occupied 
or  used  for  telegraphic  purposes.  The  rateable 
annual  value  at  which  the  portion  comprised  in 
the  underlease  could  properly  have  been  assessed, 
as  a  separate  tenement  at  the  time  of  the  pur- 
chase, was  108/.  In  1880  the  assessment  com- 
mittee of  the  district  separately  assessed  that 
portion  in  respect  of  parochial  rates  at  the 
rateable  annual  value  of  334Z.  : — Held,  that  s.  22 
applied  notwithstanding  that  all  use  of  the 
house  for  telegraphic  purposes  had  ceased,  and 
therefore  that  the  occupier  of  the  premises  com- 
prised in  the  underlease  was  not  liable  to  be 
assessed  in  any  sum  exceeding  the  rateable 
value  at  which  these  premises  could  have  been 
properly  assessed  at  the  time  of  the  purchase. 
St.  Gabriel,  Fenchurch  v.  Williams,  16  Q.  B.  D. 


649  ;  55  L.  J.,  M.  C.  14  ;  54  L.  T.  270  ;  34  W.R. 
256  ;  50  J.  P.  633— D. 

Tithes  in  London — Bate  on  House  Property- 
Commutation  for  fixed  annual  Payment— Pay- 
ment in  Lieu  of  Tithes.]— By  37  Hen.  8,  c.  12, 
provision  was  made  for  payment  to  the  clergy  of 
the  city  of  London  and  their  successors  of  a  rate 
made  upon  the  inhabitants  and  calculated  upon 
the  rent  of  the  houses  in  the  city.  In  this  and 
several  subsequent  statutes  these  payments  were 
described  as  tithes.    A  special  act  passed  in  1881 

f)rovided  that  all  tithes  and  sums  of  money  in 
ieu  of  tithes  arising  or  growing  due  in  a  parish 
in  London  should  cease  and  be  extinguished,  and 
the  tithe-owner  should  receive  in  lieu  and  satis- 
faction thereof  a  fixed  annual  sum,  to  be  levied 
and  collected  in  the  same  manner  as  the  poor- 
rates.  Neither  the  above-mentioned  tithes  nor 
the  fixed  annual  sum  in  lieu  thereof,  had  ever 
been  assessed  for  the  relief  of  the  poor : — Held, 
that  the  owner  was  not  rateable  to  the  poor-rate 
in  respect  of  this  fixed  annual  sum,  as  such  sum 
was  a  personal  payment,  and  was  not  a  payment 
in  lieu  of  tithes  rateable  under  43  Elk.  c  2. 
JSsdaUe  v.  City  of  London  Union,  19  Q.  B.  D. 
431 ;  56  L.  J.,  M.  C.  149  ;  57  L.  T.  749  ;  35  W.  R. 
722  ;  61  J.  P.  564— C.  A. 

Trustees  for  Statutory  Purposes — Estimate  of 
Bental— Possible  Tenant — Statutory  Disability 
to  rent  Premises.] — Trustees  were  incorporated 
under  an  Act  of  Parliament  for  the  purpose  of 
establishing  and  for  ever  maintaining  a  college 
for  educational  purposes.  They  were  by  the  act 
empowered  to  acquire  and  hold  land  as  a  site, 
ana  to  erect  buildings  thereon  for  the  college ; 
and  they  had  no  power  to  sell  or  let  the  land  so 
acquired.  In  pursuance  of  the  act  they  pur- 
chased land  in  fee  simple  and  erected  buildings 
upon  it,  which  they  used  for  the  purposes  of 
such  college.  Such  an  institution  as  the  college 
could  not  be  carried  on  at  a  profit  in  the  locality, 
as  the  expenses  would  always  exceed  the  amount 
to  be  derived  from  students1  fees.  The  college 
premises  having  been  rated  to  the  poor-rate  on  a 
gross  estimated  rental  of  3,833/.,  it  was  found,  in 
a  case  stated  on  appeal  against  the  rate,  that,  if 
let  for  any  purposes  to  which  (without  consider- 
able structural  alterations)  they  were  capable  of 
being  applied,  they  would  not  let  for  more  than 
1,300?.  per  annum,  which  would  make  the  rate- 
able value  1,083?.  6*.  Sd.  The  trustees  were 
willing  to  be  rated  on  that  rateable  value,  but 
contended  that  they  were  not  liable  to  be  rated 
on  any  larger  amount.  In  arriving  at  this 
amount  the  trustees  themselves  were  not  taken 
into  consideration  as  possible  tenants  of  the  pre- 
mises : — Held,  that  (assuming  the  trustees  to  be 
rateable  upon  more  than  a  nominal  amount)  in 
estimating  the  rental  the  trustees,  being  unable 
themselves  to  rent  the  premises  by  virtue  of  the 
statutory  provisions,  must  be  excluded  from  con- 
sideration as  possible  tenants,  and  therefore  the 
rateable  value  must  be  reduced  to  l,083i.  6*.  8**. 
Reg.  v.  School  Board  for  London  (17  Q.  B.  D- 
738)  explained  and  distinguished.  Owent  Colle?* 
v.  Chorlton-upon-Medloch  Ocerwecrs,  18  Q.  B.  D. 
403  ;  66  L.  J.,  M.  C.  29  ;  56  L.  T.  373  ;  S5  W.R. 
236  ;  51  J.  P.  356— C.  A. 

Water  Company— Works  in  Exeess  of  exist- 
ing Bequirementa.] — A  waterworks  company 
had  works  extending  over  many  parishes.   All 


1877 


POOB   LAW— Poor  Rates. 


1378 


the  work*  were  in  use  for  the  supply  of  their 
customers,  bat  they  were  in  excess  of  the  exist- 
ing requirements  of  the  company,  and  were 
created  for  and  adapted  to  an  increased  supply 
in  future  years.  In  the  calculation  by  which 
the  rateable  value  of  the  mains  and  service 
pipes  in  one  of  the  parishes  supplied  was  to  be 
arrived  at :— Held,  that  the  whole  of  the  works, 
being  used  for  the  purpose  of  distributing  water 
as  a  source  of  profit,  the  whole  of  the  capital  ex- 
penditure must  be  taken  into  account,  and  not 
merely  so  much  as  would  have  sufficed  to  pro- 
vide the  existing  supply : — Held,  also,  that  the 
deduction  to  be  made  in  respect  of  the  rates 
which  the  hypothetical  tenant  would  have  to 
nay  ia  the  amount  of  the  rates  that  would  be 
payable  on  the  sum  at  which  the  works  ought 
to  be  assessed,  and  not  necessarily  the  rates 
based  on  the  existing  valuation  list.  Reg.  v. 
forth  Staffordshire  Waterworks  Company,  16 
Q.  B.  D.  359  ;  55  L.  J.,  M.  C.  88  ;  54  L.  T.  782  ; 
34  W.  R.  242  ;  50  J.  P.  20— C.  A. 

Water-Bates  in  aid  of  Water-Bents— Deduc- 
tion for  Bepairs — Bemuneration  to  Contractor.  ] 
—By  their  special  act,  39  &  40  Vict.  c.  clxxxv., 
the  appellants,  a  local  board,  were  empowered 
to  make  a  public  water-rate,  but  s.  106  provided 
that  they  should  not  levy  any  higher  public 
water-rate  than  might  be  required  to  discharge 
so  much  of  the  expenses  of  maintaining  the 
waterworks  as  the  amount  of  water-rents  and 
other  payments  for  a  supply  of  water  should  not 
be  sufficient  to  discharge  : — Held,  that  in  assess- 
ing the  appellants  to  the  poor-rate  in  respect  of 
their  reservoirs,  pipes,  and  works,  the  amount 
collected  by  means  of  a  water-rate  ought  to  be 
taken  into  account ;  that  a  certain  percentage 
nn  the  total  cost  of  the  property  might  be 
allowed  for  wear  and  tear  as  the  "  probable 
avenge  annual  cost  of  repairs"  within  the 
Parochial  Assessment  Act  (6  &  7  Wm.  4,  c.  96), 
*•  1 ;  and  that  the  adequate  remuneration  to  a 
contractor  for  erecting  the  works  was  not  the 
true  measure  of  the  net  rateable  value  of  the 
premises.  Dewsbury  Waterworks  Board  v. 
Penistone  Union  Assessment  Committee,  17 
Q.  B.  D.  384  ;  66  L.  J.,  M.  C.  121  ;  54  L.  T.  592 ; 
34  W.  R.  622  ;  50  J.  P.  644— C.  A. 


2.  PROCEEDINGS, 
a.  Payment  and  Becovery. 

Payment  to  Collector— Aceeptanee  of  Bill  in 
frtitfaetion.] — At  the  hearing  of  a  summons 
for  non-payment  of  poor-rate  against  B.,  he  set 
op  the  defence  of  payment  to  the  assistant 
overseer  by  accepting  bills  of  exchange,  and  on 
*n  account  stated,  though  the  assistant  overseer 
had  never  paid  over  the  proceeds  to  the  over- 
seen :— Held,  that  this  was  not  a  legal  payment 
<rf  poor-rates.    Smith  v.  Barham,  51  J.  P.  581 

Beeorery  of  Bates  from  Company— Bestrain- 
fcf  Proceedings  for.]— See  Compact,  XI.  4,  6. 

Xaadsmu — Enforcing  Betroapeotive  Bats.] 
—At  the  time  when  the  parish  of  B.  was  by 
*  provisional  order  separated  from  the  local 
government  district  of  M.,  the  special  district 
rates  of  that  district  were  mortgaged  for  the 


unexpired  period  of  twenty-three  years  to  secure 
the  repayment  of  a  debt  which  had  previously 
been  incurred  by  the  local  board  of  the  district 
of  M.  The  statute  24  &  25  Vict.  c.  39,  which 
confirmed  the  provisional  order,  apportioned  the 
amount  which  the  parish  of  B.  should  contribute 
towards  the  payment  of  such  debt,  and  provided 
that  the  overseers  of  that  parish  should  raise  the 
annual  instalments  required  to  pay  off  the  sum 
the  parish  of  B.  was  to  contribute  in  the  name 
and  as  part  of  the  rates  levied  within  such 
parish  for  the  relief  of  the  poor.  In  July,  1883, 
the  local  board  of  M.  paid  off  the  last  instalment 
of  principal  and  interest  due  under  the  mortgage, 
and  on  the  25th  of  March  demanded  from  the 
overseers  of  the  parish  of  B.  payment  of  the 
amount  due  from  the  parish  since  the  13th 
January,  1879,  up  to  which  date  the  parish  had 
duly  contributed  in  accordance  with  24  &  26 
Vict.  c.  39.  The  demand  not  having  been  com- 
plied with,  an  application  was  made  for  a  man- 
damus to  compel  the  overseers  to  levy  a  rate  in 
order  to  pay  the  amount  in  arrear  : — Held,  that 
the  obligation  imposed  by  the  statute  on  the 
parish  of  B.  was  that  they  should  pay  their  pro- 
portion of  the  debt  annually,  and  that  the  effect 
of  granting  the  mandamus  would  be  to  enforce 
the  levy  of  retrospective  rates,  and  the  court 
therefore  discharged  the  rule.  Reg.  v.  Reddling- 
ton  Overseers,  48  J.  P.  486 — D. 


Payment  of  Debts  Act,  1869 — Prosecu- 


tion of  Aotion  with  due  Diligence.  1 — An  action 
was  brought  by  an  engineer,  within  the  time 
limited  by  s.  1  of  the  Payment  of  Debt*  Act, 
1859,  for  services  rendered  to  the  defendants, 
who  were  a  rural  sanitary  authority  acting  under 
the  Public  Health  Act,  1875.  After  issue  joined 
the  plaintiff  took  out  a  summons  to  refer  the 
matter  to  arbitration  ;  this  summons  was  op- 
posed by  the  defendants,  and  was  dismissed. 
The  plaintiff  then  allowed  two  assizes  at  Leeds 
(where  the  action  was  to  be  tried)  to  pass 
without  giving  notice  of  trial ;  the  defendants 
then  took  out  a  summons  to  dismiss  the  action 
for  want  of  prosecution,  after  which  the  plaintiff 
gave  notice  of  trial  for  the  assizes  then  coming 
on.  At  the  trial,  the  learned  judge,  with  the 
consent  of  the  parties,  ordered  the  matter  to  be 
referred  to  an  arbitrator,  who  found  for  the 
plaintiff  for  a  certain  sum.  In  an  action  for  a 
mandamus  to  the  defendants  to  levy  a  rate  to 
satisfy  the  award : — Held,  granting  the  man- 
damus, that,  as  the  action  was  a  proper  one  to  be 
referred  to  arbitration,  and  as  the  plaintiff  had 
taken  out  a  summons  to  refer,  which  the  defen- 
dants opposed,  the  plaintiff  had  not,  under  the 
circumstances,  failed  to  prosecute  the  proceed- 
ings in  the  action  "  with  due  diligence " 
within  the  meaning  of  s.  4  of  the  Poor  Law 
Boards  (Payment  of  Debts)  Act,  1859.  Rhodes 
v.  Pateley  Bridge  Union,  51  L.  T.  235  ;  48  J.  P. 
168— D. 

Distress  Warrant — Property  claimed  to  be 
in  two  Parishes— Bate  not  Appealed  against] 
— J.  was  rated  as  occupier  of  premises  in  the  D. 
parish,  and  also  in  G.  Parish,  and  paid  the  rates 
to  D.  He  did  not  appeal  against  the  rate  made  by 
G.  parish,  and  on  an  application  by  the  G.  over- 
seers for  a  distress  warrant,  the  justices  having 
declined,  and  a  rule  being  moved  by  way  of 
mandamus  under  11  &  12  Vict.  c.  44,  s.  5 : — Held, 
that  the  rule  must  be  made  absolute,  but  with- 

y  r 


1879 


POOR    LAW— Poor  Rates. 


1880 


oat  cost*,  and  that  J.'s  proper  course  was  to 
appeal  against  the  next  rate  to  quarter  sessions, 
when  the  question  of  boundary  could  be  decided 
conclusively.  Reg.  v.  Jefferson,  48  J.  P.  393 
— D. 


Lands  not  in  Occupation  of  Person  as- 


sessed.]—  Upon  a  summons  before  justices  to 
enforce  a  poor-rate  against  a  railway  company, 
it  appeared  that  property  occupied  by  the  com- 
pany  had  been  assessed  by  the  description 
"  offices  and  land  with  rails,"  but  that  in  esti- 
mating the  amount  of  the  rate  the  overseers 
had  treated  certain  buildings  as  being  in  the 
occupation  of  the  company  which  were  not  in 
fact  in  their  occupation.  The  company  had  not 
appealed  against  the  rate  : — Held,  that  the  ob- 
jection being  matter  of  appeal  and  the  rate  good 
on  the  face  of  it,  the  justices  were  bound  to 
issue  a  distress  warrant.  Crease  v.  Satole  (2  Q. 
B.  862)  followed.  Reg.  or  Manchester  Overseers 
t.  Headlam,  21  Q.  B.  D.  96  ;  57  L.  J.,  M.  C.  89  ; 
52  J.  P.  517— D. 


Contribution  to  Sural  Sanitary  Autho- 


rity— Precept  of  Guardians  to  Overseers.] — The 

guardians  of  a  union  claimed  and  received  sums 
from  the  overseers  of  a  township  under  precepts 
based  upon  the  then  existing  valuation  list.  It 
was  subsequently  decided,  on  an  appeal  against 
a  rate  by  colliery  owners,  who  represented  two- 
thirds  of  the  township,  that  the  valuation  list 
was  too  high.  The  overseers  did  not  appeal 
against  the  valuation  list  under  the  32nd  section 
of  the  Parochial  Assessment  Act,  1862,  but 
having  refunded  the  amount  overpaid  by  the 
colliery  owners,  claimed  credit  for  the  excess 
paid  by  them  to  the  guardians : — Held,  that 
the  guardians  might  give  credit  for  the  sums 
overpaid  by  the  overseers,  even  though  the 
latter  had  not  appealed  against  the  valuation 
list ;  and  that  justices  might  refuse  to  enforce  by 
distress  warrant  the.  guardians1  precept  for  a 
general  rate  based  on  the  old  valuation  list  when 
it  appeared  that  such  sums  had  already  been 
paid  in  excess  by  the  overseers.  Tynemouth 
Union  v.  Backworth  Overseers,  57  L.  J.,  M.  C. 
53  ;  59  L.  T.  178  ;  62  J.  P.  357— D. 

Tithe  Bent-Charge — How  Secoverable.  ]  — 
Where  the  owner  of  a  tithe  rent-charge  does  not 
pay  the  rates  to  which  he  is  assessed  in  respect 
thereof,  the  amount  is  recovered  from  one  or 
more  of  the  occupiers  of  the  land  out  of  which 
such  rent-charge  issues,  and  not  from  the  owner 
of  such  rent-charge.  Lamplugh  v.  Yalding 
Overseers,  52  J.  P.  505— Wills,  J.  Affirmed  22 
Q.  B.  D.  452  ;  58  L.  J.,  Q.  B.  279  ;  37  W.  R.  422  ; 
53  J.  P.  389— C.  A. 

Deficiency  in  Assessment — Liability  of  Pro- 
moters of  Undertaking.]— By  s.  133  of  the 
Lands  Clauses  Consolidation  Act,  1845  (8  Vict, 
c  18),  the  promoters  of  the  undertaking  are  to 
make  good  the  deficiency  in  the  assessment  for 
poor-rate  arising  from  their  being  in  possession 
of  lands  liable  to  be  assessed  thereto : — Held, 
that  the  borough  rate  (under  45  and  46  Vict.  c. 
50,  s.  145)  and  the  county-rate  (under  15  &  16 
Vict.  c.  81,  s.  26)  being  respectively  made  charge- 
able on  the  poor-rate,  the  deficiency  in  the 
assessment  for  the  poor-rate,  which  the  promoters 
of  the  undertaking  are  liable  to  make  good, 
includes  any  deficiency  in  respect  of  amounts 


raised  for  borough-rate  and  county-rate,  as  well 
as  any  deficiency  in  the  assessment  for  poor-law 
purposes  properly  so  called.  Farmer  v.  London 
and  Aorth  Western  Railway,  20  Q.  B.  D.  788 ; 
59  L.  T.  542  ;  36  W.  B.  590— D. 

Completion  of  Works.]— By  the  Lands 


Clauses  Consolidation  Act,  1845,  s.  133,  the  pro- 
moters of  undertakings  who  become  possessed 
under  statutory  authority  of  lands  liable  to  be 
assessed  to  the  poor-rate,  are  liable  to  make  good 
the  deficiency  caused  thereby  4|  until  the  works 
shall  be  completed  and  assessed  to  the  poor-rate." 
An  urban  sanitary  authority,  acting  under  statu- 
tory authority,  took  for  the  purposes  of  improve- 
ments lands  situate  in  a  number  of  parishes  and 
liable  to  be  assessed  to  the  poor-rate.    In  some 
cases  all  the  land  so  taken  was  used  in  the  con- 
struction of  the  roadways  of  new  streets;  but  in 
some  cases  more  land  was  taken  than  was  required 
for  that  purpose,  so  that  the  sanitary  authority 
became  possessed  of  surplus  land  which  was 
vacant,  unoccupied,  and  unassessed.    Such  land 
was  to  be  disposed  of  either  by  sale  in  fee  simple 
or  by  the  creation  of  rent-charges  which  were  to 
be  sold  within  a  specified  time  which  had  not 
expired  when  the  rating  authority  brought  an 
action  to  recover  from  the  sanitary  authority  tbe 
amount  of  the  deficiency  in  the  assessment  to  the 
poor-rate  caused  by  the  lands  having  been  taken : 
— Held,  that  the  works  were  completed  within  the 
Lands  Clauses  Consolidation  Act,  1845, 8. 133,  » 
as  to  relieve  the  undertakers  from  the  liability 
to  make  good  the  deficiency  so  caused,  when  the 
streets  were  fully  made,  and  such  of  the  land*" 
taken  as  might  be  liable  to  assessment  had  be- 
come assessable  ;  and  that  the  deficiency  was  to 
be  computed  from  time  to  time  by  comparing 
the  assessed  value  at  the   time  of  the  special 
act  of  the  lands  taken  with  the  assessed  value 
at  the  time  of  computation  of  such  of  the  land* 
taken  as  might  have  again  become  assessable. 
Bristol  (Guardians)  v.  Bristol  (Mayer),  1* 
Q.  B.  D.  549  ;  56  L.  J.,  Q.  B.  320  ;  66  L.  T.  641 : 
35  W.  R.  619  ;  51  J.  P.  676—0.  A. 


Various  Improvement  So  hemes — Separate 


Undertakings.] — The  authority  to  put  in  force  the 
compulsory  powers  of  the  Lands  Clauses  Consoli- 
dation Acts  was  conferred  by  a  provisional  order 
confirmed  by  a  statute  which  described  in  one 
schedule,  but  under  headings  separately  num- 
bered, the  several  improvement  schemes  pro- 
moted by  the  sanitary  authority  : — Held,  that 
each  scheme  described  in  the  schedule  con- 
stituted a  separate  undertaking,  and  that  tbe 
deficiency  in  the  assessment  ought  to  be  cal- 
culated on  each  separate  undertaking  within 
the  rating  area  affected  by  it.    lb. 

b.  Valuation  List  and  Appeal. 

Power  to  Amend — Notice  of  Objection.]— 
Under  the  Union  Assessment  Committee  Amend- 
ment Act,  1864,  27  &  28  Vict.  c.  39,  s.  1,— which 
enables  the  assessment  committee  to  hear  objec- 
tions against  a  valuation  list  approved  by  the 
committee,  and  to  amend  such  list,  u  after 
notice  given  at  any  time  in  the  manner 
prescribed  by  25  and  26  Vict  c.  103,  with  respect 
to  objections," — an  amendment  of  the  list  i« 
valid,  although  no  notice  of  the  meeting  of  the 
committee  was  given  to  the  overseers  of  the 
parish  to  which  the  list  relates  as  required  by 


1881 


POOR    LAW — Settlement  and  Removal  of  Paupers. 


1882 


25  and  26  Vict.  c.  103,  s.  19.  Reg.  v.  Langriville 
Overseers, or  Copping  Syke  Overseers,  14  Q.  B.  D. 
83 ;  54  L.  J.,  a  B.  124  ;  52  L.  T.  253  ;  33  W.  R. 
213 ;  49  J.  P.  54— D. 

Objection  made  before  Bate — Second  Objec- 
tion unnecessary  ^Appeal  against  second  Bate.] 
—A  person  who  has  once  given  to  the  assess- 
ment committee  notice  of  objection  against 
s  valuation  list  and  failed  to  obtain  such  relief 
as  he  deems  just,  may  appeal  to  quarter  sessions 
against  any  subsequent  poor-rate  made  in  con- 
formity with  the  list,  and  27  and  28  Vict.  c.  39, 
a.  1,  does  not  make  it  a  condition  precedent  of 
such  appeal  that  previously  thereto  he  should 
repeat  his  application  to  the  committee  for  relief. 
Beg.  t.  Denbighshire  Justices,  15  Q.  B.  D.  451 ; 
54  L.  J.,  M.  C.  142 ;  53  L.  T.  389  ;  33  W.  R.  784 
— D. 

Metropolis  Valuation  Act,  1869 — Supplemental 
list]— See  Metropolis,  II.  2. 

Appeal  —  Arbitration  —  Special  Case.]  —  A 
special  case  stated  by  an  arbitrator  upon  an 
appeal  against  an  assessment  to  poor-rates  set 
out  two  alternative  modes,  neither  contrary  to 
law,  for  ascertaining  the  value  of  the  tenements 
assessed: — Held,  that  the  arbitrator  must  find 
the  facts  affirmatively,  and  not  in  the  alternative. 
Case  remitted  to  be  re-stated.  North  and  South 
Western  Junction  Railway  v.  Brentford  Union, 
13  App.  Cas.  592  ;  58  L.  J.t  M.  C.  96  ;  60  L.  T. 
274-H.  L.  (E.). 


III. 


T  AHB  REMOVAL  OF 
PAUPERS. 


Derivative  Settlement  —  Illegitimate  Child 
Older  Sixteen.]— Under  the  Divided  Parishes 
Act,  1876  (39  &  40  Vict.  c.  61),  an  illegitimate 
child  uuder  sixteen  does  not  take  the  settlement 
of  its  mother,  where  such  settlement  has  been 
derived  from  the  mother's  father,  but  such  child 
is  remitted  to  its  birth  settlement.  Reg.  or 
Wycombe  Union  v.  Marylebone  Guardians,  13 
Q.  B.  D.  15 ;  53  L.  J.,  M.  C.  38 ;  50  L.  T.  442  ; 
48  J.  P.  566— C.  A.    Affirming  31  W.  R.  91ft— D. 

Ho  Settlement  acquired  by  Father  or 

Bother.] — Where  neither  the  father  nor  mother 
of  a  pauper  child  has  acquired  a  settlement 
in  bis  or  her  own  right,  and  after  the  father 
has  died  the  widowed  mother  has  deserted  such 
child,  who  is  under  the  age  of  sixteen,  and  has 
not  acquired  a  settlement  for  itself,  such  child 
is,  by  39  &  40  Vict.  c.  61,  s.  35,  to  be  deemed  to 
be  settled  in  the  parish  in  which  it  was  born; 
and  an  order  for  its  removal  to  a  parish  in  which 
it  was  not  born,  but  in  which  its  father  was 
born,  was  quashed,  because,  in  that  case,  it 
coold  not  be  shown  what  settlement  such  child 
derived  from  its  father  or  mother  without  in- 
quiring into  the  derivative  settlement  of  such 
parent,  which  was  prohibited  by  that  section. 
Beg.  or  Headington  Union  v.  St.  OlavJs  Union, 
n  Q.  B.  D.  293 ;  53  L.  J.,  M.  0.  91 ;  50  L.  T. 
444  ;  32  W.  B.  738  ;  48  J.  P.  647— C.  A. 

Widow  and  Children— Birth  Settlement  of 
Father.] — Upon  appeal  against  an  order  for  the 
removal  of  a  widow  and  her  three  children,  it 
appeared  that  the  widow  had  acquired  no  settle- 


ment since  her  husband's  death.  Her  husband, 
the  father  of  her  three  children,  was  born  in  the 
appellant  parish,  but  never  acquired  a  settlement 
for  himself,  and  there  was  no  evidence  as  to  the 
settlement  of  his  parents  : — Held,  that  under. 
39  &  40  Vict.  c.  61,  s.  35,  the  children  took  a 
settlement  from  their  father  in  the  appellant 
parish,  and  that  the  order  for  their  removal  was 
right.  Liverpool  Guardians  v.  Portsea  Over- 
seers, 12  Q.  B.  D.  303  ;  53  L.  J.,  M.  C.  58  ;  60 
L.  T.  296  ;  32  W.  B.  494  ;  48  J.  P.  406— D. 

From  Father — Child   over   Sixteen   at 


Date  of  Inquiry.] — A  legitimate  child  left  the 
parish  of  his  birth,  and  went  with  his  father  into 
another  parish,  where  the  father  resided  and 
acquired  a  settlement  while  the  child  was  under 
sixteen,  and  where  the  child  resided  with  his 
father  until  he  was  over  sixteen.  Afterwards 
they  left  that  parish,  and  the  child  became 
chargeable  as  a  pauper.  On  appeal  against  an 
order  adjudging  the  pauper  to  be  settled  in  the 
parish  of  his  birth : — Held,  that  the  pauper 
while  under  the  age  of  sixteen  had  acquired  a 
derivative  settlement  from  his  father  in  the 
parish  in  which  they  had  resided,  and  that,  not 
having  afterwards  acquired  any  other  settlement, 
he  retained  such  derivative  settlement,  and 
therefore  the  order  must  be  quashed.  St.  Panera* 
Guardians  v.  Norwich  Guardians,  18  Q.  B.  D. 
521 ;  56  L.  J.,  M.  C.  37  ;  56  L.  T.  311 ;  35  W.  R. 
647  ;  51  J.  P.  343— D. 

On  an  inquiry  into  the  settlement  of  a  pauper 
it  appeared  that  she  resided  with  her  father  till 
his  death,  and  then,  in  the  same  parish,  with  her 
mother,  who  married  again  before  the  pauper 
arrived  at  the  age  of  sixteen.  After  she  attained 
that  age  the  pauper  continued  to  reside  in  the 
same  parish  with  her  mother  and  stepfather 
for  two  years  and  eight  months,  when  she 
became  chargeable.  She  was  at  that  time  and 
always  had  been  physically  incapable  of  work  : 
— Held,  that  the  effect  of  s.  35  of  the  Divided 
Parishes  Act,  1876,  is  that  every  child  on 
attaining  the  age  of  sixteen  is  for  the  purposes 
of  settlement  emancipated,  and  capable  of 
acquiring  a  settlement,  but  that  the  pauper 
could  not  while  under  sixteen  "  reside  "  for  any 
part  of  the  period  required  for  a  settlement  by 
residence  under  s.  34,  and  that  as  any  settle- 
ment acquired  by  the  mother  on  re-marriage 
was  not  communicated  to  the  pauper,  and  she 
had  not  resided  after  attaining  sixteen  for  three 
years,  so  as  to  acquire  a  settlement  by  residence 
under  s.  34,  she  still  retained  the  derivative 
settlement  she  had  taken  from  her  father  while 
under  that  age.  Highworth  and  Swindon  Union 
v.  Westbury-on~Sevem  Union,  20  Q.  B.  D.  597  ; 
57  L.  J.,  M.  C.  33  ;  58  L.  T.  839  ;  36  W.  R.  422  ; 
52  J.  P.  325— C.  A.  Reversed  W.  N.;  1889,  p.  167 
— H.  L.  (B.). 

Since  39  &  40  Vict.  c.  61  (Divided  Parishes 
Act,  1876),  s.  35,  enacting  that  "  no  person  shall 
be  deemed  to  have  derived  a  settlement  from  any 

other  person except  ....  in  the  case  of 

a  child  under  the  age  of  sixteen,  which  child 
shall  take  the  settlement  of  its  father  ....  up 
to  that  age  and  shall  retain  the  settlement  so 
taken  until  it  shall  acquire  another,"  paupers 
who  are  above  the  age  of  sixteen  at  the  time  of 
the  inquiry  as  to  their  settlement  cannot  take 
the  settlement  of  their  father.  Reg.  or  Edmon- 
ton Guardians  v.  St.  Mary,  Islington,  Guardians, 
15  Q.  B.  D.  339 ;  54  L.  J.,  M.  C.  146— C.  A.  Affirm- 

T  T  2 


1383 


POOR    LAW — Settlement  and  Removal  of  Paupers. 


1384 


ing  16  Q.  B.  D.  95  ;  64  L.  J.,  M.  C.  110 ;  63  L.  T. 
527  ;  49  J.  P.  804— D. 

A  female  pauper  had  married  when  above  the 
age  of  sixteen,  and  had  been  deserted  by  her 
husband,  who  never  had  a  settlement :  she  had 
never  acquired  a  settlement  of  her  own  : — Held, 
that  the  pauper  retained  the  derivative  settle- 
ment which  she  had  taken  from  her  father  while 
under  the  age  of  sixteen.  Guardian*  of  Ed- 
monton v.  Guardians  of  St.  Mary,  Islington  (1 5 
Q.  B.  D.  96,  839),  overruled.  Dorchester  Union 
v.  Poplar  Union,  21  Q.  B.  D.  88  ;  57  L.  J.,  M.  C. 
78  ;  69  L.  T.  687  ;  36  W.  R.  706  ;  52  J.  P.  435  ; 
— C.  A. 

"Widowed  Mother."]— A  pauper  under 

the  age  of  sixteen,  whose  father  was  dead  and 
whose  mother  had  married  again  without  having 
acquired  a  settlement  for  herself  during  her 
widowhood,  became  chargeable  to  the  respondent 
union,  and  an  order  was  made  for  her  removal 
into  the  appellant  union,  in  which  her  mother 
had  been  born  : — Held,  that  the  order  was  bad  ; 
that  at  the  time  of  the  making  of  the  order  of 
removal  the  pauper  had  no  "  widowed  mother  " 
within  the  meaning  of  s.  35  of  the  Divided 
Parishes  Act,  1876,  whose  settlement  she  could 
take,  and  that  the  pauper  took  her  own  birth 
settlement.  Amersham  Union  v.  City  of  London 
Union,  20  Q.  B.  D.  103  ;  57  L.  J.,  M.  C.  6  ;  58 
L.  T.  83  ;  36  W.  R.  141  ;  52  J.  P.  404— D. 

"  Wife  "  not  including  Widow.] — Upon  appeal 
against  an  order  for  the  removal  of  a  widow,  it 
appeared  that  her  husband  was  settled  in  a 
parish  in  the  appellant  union  at  the  time  of  his 
death,  and  that  she  had  acquired  no  settlement 
since  his  death  : — Held,  that  the  term  "wife  "  in 
39  &  40  Vict.  c.  61,  s.  35,  did  not  include  a 
widow  ;  that  the  pauper  did  not  therefore  take 
the  settlement  of  her  deceased  husband,  and 
that  the  order  for  removal  must  be  quashed. 
Maidstone  Union  v.  Holborn  Union,  17  Q.  B.  D. 
817  ;  66  L.  J.f  M.  C.  91  ;  61  J.  P.  64— D. 

A  widow  and  her  legitimate  children,  under 
the  age  of  sixteen,  became  chargeable  to  the 
respondent  parish,  and  an  order  was  made  for 
their  removal  into  the  appellant  union,  where 
the  deceased  husband  and  father  had  been  set- 
tled : — Held,  that  the  word  "  wife  M  in  s.  35  of 
the  Divided  Parishes  Act,  1876,  does  not  include 
a  widow,  and,  therefore,  as  the  widow's  settle- 
ment became  the  subject  of  inquiry  after  her 
husband's  death,  she  did  not  take  his  settlement, 
and  that  under  the  words  "  shall  take  the  settle- 
ment of  its  father,  or  of  its  widowed  mother, 
as  the  case  may  be,"  the  children  took  their 
mother's  birth  settlement,  and,  therefore,  the 
order  must  be  quashed.  Maidstone  Union  v. 
Holborn  Union  (supra),  approved  and  followed. 
Kingsbridge  Union  v.  East  Storehouse  Guar- 
dians, 18  Q.  B.  D.  528 ;  56  L.  J.t  M.  C.  83  ;  56 
L.  T.  333  ;  35  W.  R.  580  ;  51  J.  P.  470— D. 

A  pauper  under  the  age  of  sixteen,  whose 
father  was  dead,  and  whose  mother  resided 
abroad,  having  become  chargeable  to  a  parish  in 
the  respondent  union,  an  order  was  made  for  her 
removal  into  the  appellant  union,  where  her 
deceased  father  had  during  his  lifetime  acquired 
a  settlement : — Held,  that  the  order  was  bad  ; 
that  the  language  of  s.  35  of  the  Divided  Parishes 
Act,  1876,  is  to  be  interpreted  with  reference  to 
the  moment  of  adjudication  upon  the  application 
for  an  order  of  removal ;  that  the  word  "  wife  " 


in  that  section  therefore  does  not  include  a 
widow,  and  that  under  the  words  M  shall  take 
the  settlement  of  its  father,  or  of  its  widowed 
mother,  as  the  case  may  be,"  the  pauper  took 
her  mother's  birth  settlement,  as  being  the 
settlement  of  her  surviving  parent  at  the 
moment  of  adjudication.  Maidstone  Unions. 
Holborn  Union  (supra),  and  Kingsbridge  Union 
v.  East  Storehouse  Guardians  (supra),  dis- 
cussed and  approved.  Croydon  Unwn  v.  Rsigatt 
Union,  19  Q.  B.  D.  385  ;  56  L.  J.,  M.  C.  93 ; 
57  L.  T.  917  ;  35  W.  R.  824  ;  51  J.  P.  724— 
C.  A.   Reversed  W.  N.,  1889,  p.  167— H.  L.  (E.). 

Residence  as  Wife  and  Widow.]— A  pauper 
had  resided  with  her  husband  in  a  parish  con- 
tinuously for  upwards  of  three  years,  and  con- 
tinued after  her  husband's  death  to  reside  as  a 
widow  in  the  same  parish  for  three  months  :— 
Held,  that  the  pauper  had  by  such  residence 
gained  a  settlement  in  the  parish  under  s.  34 
of  the  Divided  Parishes  Act,  1876.  Medway 
Union  v.  Bedminster  Union,  21  Q.  B.  D.  278 ; 
57  L.  J.,  M.  C.  129  ;  36  W.  R.  861  ;  52  J.  P.  788 
— C.  A.  Affirming  58  L.  T.  414— D.  Affirmed 
W.  N.,  1889,  p.  167— H.  L.  (E.).  8.  P.  Barton 
Regis  Guardians  v.  St.  Paneras,  67  L.  J.,  M.  G. 
6,  n.— D. 

••  Residence  "  —  Pauper  a  Sailor  —  Constant 
Absence  —  Birth  Settlement.] — A  pauper,  who 
was  born  in  the  appellant  union,  from  1876  up 
to  the  time  of  his  application  for  relief  was  a 
sailor  in  the  merchant  navy,  serving  on  board 
different  ships  and  on  different  voyages.  Between 
the  different  voyages  he  always  returned  to  his 
mother's  house  in  the  respondent  union,  remain- 
ing there  on  an  average  for  four  or  five  weeks  in 
each  year.  In  1881  he  also  obtained  jobs  on 
shore,  which  lasted  about  three  months,  during 
which  time  he  came  to  his  mother's  house  in  the 
respondent  union  from  Saturday  to  Monday  ia 
eacn  week.  When  away  he  invariably  left  some 
of  his  effects  at  her  house,  and  also  brought  to 
her  a  portion  of  his  earnings  as  a  contribution 
towards  the  expenses  of  the  house,  but  he  had  no 
separate  room  there.  In  1883  the  pauper  became 
blind,  returned  to  his  mother's  house,  and  sought 
parish  relief.  The  justices  made  an  order  that 
he  was  settled  in  the  appellant  union,  and 
directed  that  he  should  be  removed  there: — 
Held,  that  the  facts  disclosed  did  not  establish 
that  the  pauper  had  ever  resided  in  the  M  erthyr 
Tydvil  union,  within  the  meaning  of  39  k  40 
Vict.  c.  61,  s.  34,  or  that  he  had  ever  been  there 
otherwise  than  as  a  visitor.  Reg.  or  Mertkpr 
Union  v.  Stepney  Union,  54  L.  J.,  M.  G.  12 ;  52 
L.  T.  959  ;  49  J.  P.  164—0.  A. 


Children  under  Seven — Residing  away 


from  Father.] — Upon  appeal  from  an  order  of 
removal  it  appeared  that  seven  yean  before  the 
order  the  pauper  children,  then  under  seven 
years  of  age,  were,  on  the  death  of  their  mother, 
placed  by  their  father  in  the  care  of  K*  who 
resided  at  Chertsey,  Surrey,  and  lived  with  him 
from  that  time  continuously  until  they  became 
chargeable.  There  was  no  evidence  as  to  their 
residence  before  they  went  to  Chertsey.  The 
children  were  visited  by  their  father  on  three 
occasions  only  after  they  went  to  Chertsey,  and 
then  only  for  a  few  hours  at  a  time,  bat  he  made 
a  weekly  payment  for  their  maintenance, which 
was  continued  till  his  death,  six  yean  after- 


1885 


POOR    LAW — Maintenance  and  Relief  of  Paupers. 


1386 


wards.  The  children  never  visited  their  father  : 
—Held,  that  there  was  evidence  on  which  the 
justices  might  find,  as  they  must  be  taken  to 
have  done,  that  the  father  had  never  given  np 
the  intention  that  his  children  should  return  to 
him  when  he  was  in  a  position  to  receive  them. 
Hoibcrn  Union  v.  Chertsey  Union,  15  Q.  B.  D. 
76 ;  54  L.  J.,  M.  C.  137  ;  53  L.  T.  656  ;  33  W.  B. 
698 ;  50  J.  P.  36— C.  A. 

Term  of  Three  Tears — Irremovability.] 

—In  order  that  a  settlement  by  residence  may  be 
acquired  under  s.  34  of  the  Divided  Parishes  Act, 
1876,  there  must  have  been  a  residence  of  three 
consecutive  years  under  such  conditions  in  each 
of  such  years  as  would  have  created  a  status  of 
irremovability.  Dorchester  Union  v.  Weymouth 
Union,  16  Q.  B.  D.  31  ;  55  L.  J.,  M.  C.  44  ;  54 
L.  T.  62 ;  50  J.  P.  310— D. 

Break  of  Besidenoe.] — The  pauper  was 

employed  from  November,  1873,  to  July,  1878,  as 
an  indoor  resident  nurse  at  an  infirmary  in  M. 
She  was  under  the  authority  of  the  lady  superin- 
tendent of  nurses  in  the  infirmary,  ana  was 
bound  by  the  terms  of  her  agreement  to  under- 
take any  duties  that  might  be  assigned  to  her 
either  as  an  hospital  or  a  private  nurse.  For  five 
months  in  1876,  and  for  three  months  in  1877, 
she  acted,  under  the  orders  of  the  lady  superin- 
tendent, as  a  nurse  at  a  branch  establishment 
out  of  M.,  returning  to  the  infirmary  as  soon  as 
her  duties  ceased  at  the  branch  establishment. 
During  this  absence  her  wages  were  paid  from 
the  head  institution  at  M.,  and  the  greater  part  of 
her  effects  during  the  first  period  of  absence  was 
left  behind  her  in  her  box  in  the  dormitory  at 
the  infirmary,  to  which  place  she  went  from 
time  to  time  for  change  of  clothing  as  required : — 
Held,  that  the  absence  of  the  pauper  for  the  two 
periods  did  not  amount  to  a  break  of  residence, 
and  that  she  had  gained  a  settlement  in  M.  by 
three  years'  residence  within  the  meaning  of  39 
k  40  Viet,  c,  61,  s.  34.  Manchester  Overseers  v. 
Ormskirk  Guardians,  16  Q.  B.  D.  723 ;  54  L.  T. 
573 ;  34  W.  R.  533  ;  50  J.  P.  518— D. 

&,  father  of  paupers,  had  resided  more  than 
three  years  in  8.  parish,  and  then  leaving  his 
wife  and  children  at  S.,  started  for  the  Cape 

:Good  Hope  in  search  of  work.  He  sent  his 
family  a  pound  a  week  all  the  time  he  was 
abroad,  and  returned  after  a  year  to  S.,  where 
the  family  still  lived,  but  he  deserted  them,  and 
the  children  being  under  sixteen,  were  sought 
to  be  removed,  on  the  ground  that  B.'s  settlement 
in  6.  was  lost  by  break  of  residence : — Held, 
that  the  absence  for  a  year  was  a  break  of  B.'s 
residence  in  8.  Totness  Union  v.  Cardiff  Union, 
•1  J.  P.  133— D. 


of  Belief— Break  of  Residence.] — 
The  husband  of  the  pauper  had  resided  in  the  re- 
spondent union  continuously  for  upwards  of  three 
years.  During  part  of  this  time  the  pauper  was 
in  lunatic  asylums,  where  she  was  maintained  as 
a  pauper  lunatic,  but  in  lucid  intervals,  the  aggre- 
gate of  which  amounted  to  more  than  a  year,  she 
lived  with  her  husband  in  the  respondent  union. 
The  husband  did  not  during  his  residence  receive 
parish  relief  otherwise  than  in  respect  of  the 
maintenance  of  his  wife  as  a  pauper  lunatic  : — 
Held,  that  the  husband  was  irremovable,  for 
the  periods  during  which  he  did  not  receive 
parish  relief  could  be  put  together  in  order  to 


constitute  a  year's  residence  by  him  under  9  &  10 
Vict.  c.  66,  s.  1,  and  28  &  29  Vict.  c.  79,  s.  8,  and 
that  the  pauper  took  her  husband's  status  of 
irremovability.  Ipswich  Union  v.  West  Sam 
Union,  20  Q.  B.  D.  407 ;  58  L.  T.  419  ;  36  W.  B. 
473  ;  52  J.  P.  469— D. 

Bemoval  of  Lunatic  Wife— Consent  of  Hus- 
band— Separation  of  Husband  and  Wife.] — A 
wife,  having  become  insane  and  chargeable  to  the 
union  in  which  her  husband  dwelt,  was  taken  from 
his  house  to  the  workhouse  of  the  union,  and  the 
medical  officer  thereof  certified,  under  26  &  26 
Vict.  c.  Ill,  s.  20,  that  the  lunatic  was  a  proper 
person  to  be  kept  in  a  workhouse.  An  order  was 
then  made  by  justices  for  her  removal  alone  to 
another  union  containing  her  husband's  last 
place  of  settlement.  The  husband  consented  to 
the  removal  order ;  the  wife  was  mentally  in- 
capable of  consent : — Held,  that  the  order  of 
removal  made  under  these  circumstances  did  not 
contravene  the  policy  of  the  law  with  regard  to 
the  separation  of  husband  and  wife,  and  was 
good.  Reg.  v.  Preston  Guardian*  or  Oarstang 
Union,  11  Q.  B.  D.  113  ;  52  L.  J.,  M.  C.  97  ;  49 
L.  T.  104  ;  48  J.  P.  69— D. 

Pauper  of  Weak  Intellect — Casual  Poor — 
Status  of  Irremovability.] — A  pauper  of  weak 
intellect,  whose  place  of  settlement  was  in  the 
W.  union,  and  who  had  acquired  a  status  of 
irremovability  in  the  D.  union,  was  found 
wandering  in  the  B.  union,  where  he  became 
chargeable.  At  the  time  of  his  leaving  the  D. 
union  he  had  not  formed  any  intention  of  aban- 
doning his  residence  in  the  union,  and  owing  to 
his  mental  incapacity  he  was  incapable  of  exer- 
cising any  independent  choice  as  to  his  place  of 
residence,  but  his  mental  condition  was  not  such 
as  would  justify  his  detention  in  a  lunatic  asylum : 
—Held,  that  he  was  not  a  casual  pauper  in  the  B. 
union,  and  was  removable  therefrom,  under  14 
Car.  2,  c.  12,  to  the  W.  union,  notwithstanding 
the  status  of  irremovability  acquired  in  the  D. 
union.  Reg.  v.  Wakefield  Guardians,  48  J.  P. 
326— D. 


IV.  MAINTENANCE  AND  BELIEF  OF 
PATTPEBS. 

Liability  of  Children  of  first  Marriage,  where 
Mother  living  with  second  Husband.] — A  woman 
and  her  second  husband  became  chargeable  to  a 
parish,  and  received  from  it  a  weekly  sum  as 
outdoor  relief,  which  was  paid  to  the  husband  : — 
Held,  that  the  children  of  the  woman  by  a 
former  husband  were  liable  under  43  Eliz.  c.  2, 
s.  7,  to  relieve  and  maintain  her,  and  therefore 
to  contribute  towards  such  relief  for  her  main- 
tenance, and  that  their  liability  was  not  affected 
by  4  &  5  Will.  4,  c.  76,  s.  56,  enacting  that  all 
relief  to  a  wife  shall  be  considered  as  given  to 
her  husband.  Arrowsmith  v.  Dickenson,  20 
Q.  B.  D.  252  ;  58  L.  T.  632  ;  36  W.  B.  507 ;  52 
J.  P.  308— D. 

Maintenance  of  Married  Woman — Order  upon 
Husband  towards  Cost  of  Belief.] — It  is  not  a 

condition  precedent  to  the  power  of  justices  under 
31  &  32  Vict.  c.  122,  s.  33,  to  order  the  husband 
to  pay  for  the  maintenance  of  his  pauper  wife, 
that  the  guardians  should  have  fixed  the  sum  for 
her  relief.    Therefore,  although  the  guardians 


1887 


POOR  LAW—  Workhowea. 


1888 


have  not  fixed  any  sum  for  her  future  relief,  but 
have  given  her  a  small  weekly  sum,  the  justices 
may,  under  the  33rd  section,  order  the  husband 
to  pay  for  her  maintenance  such  weekly  sum  as, 
considering  the  condition  of  the  husband  and  all 
the  circumstances,  may  be  proper,  although  it 
may  exceed  the  amount  of  the  relief  previously 
given  to  her  by  the  guardians.  Dinning  v.  South 
Shields  Union,  13  Q.  B.  D.  26  ;  53  L.  J.,  M.  G. 
90 ;  60  L.  T.  446  ;  48  J.  P.  708— C.  A.  Revers- 
ing, 32  W.  R.  317— D. 

Grant  of  Letters  of  Administration  to  Nominee 
of  Guardians.] — B.,  a  pauper  lunatic  chargeable 
to  the  guardians  of  the  Kingston  Union,  died,  a 
spinster  and  without  parents,  leaving  three 
brothers  and  one  sister  her  surviving,  all  of 
whom  renounced  their  right  to  administration. 
One  other  brother,  who  had  gone  to  America  in 
1871,  but  who  had  not  been  heard  of  since  1883, 
was  cited  by  advertisement,  under  order  of  the 
court.  The  court,  upon  the  application  of  the 
guardians,  made  a  grant  of  administration  to  the 
clerk  to  the  board  as  their  nominee.  Byrne,  In 
Goods  of,  62  J.  P.  281— Butt,  J. 

Recovery  of  Arrears.] — Under  s.  104  of  the 
Lunatic  Asylums  Act,  1853,  the  guardians  of 
the  poor  of  a  parish  to  which  a  pauper  lunatic 
is  chargeable  are  entitled  in  the  event  of  his 
becoming  entitled  to  property  to  recover  only 
six  years'  arrears  in  respect  of  the  sums  paid  by 
them  for  his  maintenance  in  an  asylum.  New- 
begin,  In  re,  Eggleton  v.  Newbegin,  86  Ch.  D. 
477  ;  56  L.  J.,  Ch.  907  ;  57  L.  T.  390  ;  36  W.  R. 
69— Chitty,  J. 

The  deceased  had,  for  over  six  years  prior  to 
her  death,  been  supported  as  a  pauper  lunatic  at 
the  county  lunatic  asylum.  During  the  whole 
of  this  period  she  was,  in  fact,  entitled  to  an 
annuity  of  242.  16 jr.  6d.,  payable  by  the  Commis- 
sioners for  the  Reduction  of  the  National  Debt. 
This  fact  only  came  to  the  knowledge  of  the 
guardians  at  the  time  of  her  death,  or  shortly 
thereafter  :  —  Held,  that  the  claim  of  the 
guardians  was  not  limited  to  the  period  of 
twelve  months  prescribed  by  s.  16  of  that  statute, 
but  that,  in  respect  of  such  period,  they  were 
entitled  absolutely  to  repayment,  under  the 
statute,  and,  as  to  a  further  period  not  exceed- 
ing five  years  (making  six  years  in  all),  they 
were  entitled  to  come  in  and  claim  as  ordinary 
creditors,  notwithstanding  the  fact  of  their 
having  taken  no  steps  to  recover  payment  for 
such  expenditure  during  the  lifetime  of  the 
deceased  pauper  lunatic.  Lambeth  Guardians 
v.  JBradshaw,  57  L.  T.  86  ;  50  J.  P.  472— Butt,  J. 

Power  to  Recover  Expenses  at  Death.]— Where 
A.  was  maintained  as  a  pauper  lunatic,  though 
the  guardians  knew  that  he  had  some  property, 
which  was  just  sufficient  to  support  his  wife,  on 
summons  under  Ord.  XLV.  r.  1,  of  the  Rules  of 
Court,  1883,  for  payment  of  a  sum  of  56/.  6*.  in 
respect  of  such  maintenance : — Held,  that,  though 
the  guardians  had  not  obtained  an  order  from 
justices  during  the  lifetime  of  the  deceased,  they 
were  entitled  to  payment.  Webster,  In  re,  Derby 
Union  v.  Sharratt,  27  Ch.  D.  710  ;  54  L.  J.,  Ch. 
276  ;  61  L.  T.  319— V.-C.  B. 

Sight  to  Reimbursement  —  "  Person  en- 
titled to  receive  any  Payment  as  Member  of 
Benefit  or  Friendly  Society."] — A  member  of 


a  trade  union  is  not  "  a  member  of  a  benefit  or 
friendly  society,  and  as  such  entitled  to  receive 
any  payment,"  within  the  meaning  of  the  23rd 
section  of  the  Divided  Parishes  and  Poor  Law 
Amendment  Act,  1876  (39  &  40  Vict  c.  61), 
inasmuch  as  the  Trade  Unions  Act,  1871  (34  & 
35  Vict.  c.  31)  expressly  declines  to  enable  any 
court  to  entertain  proceedings  to  enforce  an 
agreement  to  apply  the  funds  of  a  trade  union 
to  provide  benefits  for  members ;  and  therefore 
the  guardians  cannot  under  that  section  obtain 
from  a  trade  union  the  repayment  of  expenses 
incurred  in  the  relief  of  a  pauper  lunatic  mem- 
ber. Winder  v.  Kingston-upon-HM,  20  Q.  B.  D. 
412  ;  68  L.  T.  583  ;  52  J.  P.  636— D. 


V.  WORKHOUSES. 

Lease  of  Site—"  Charitable  Use  "— Non-enrol- 
ment— Reservation  to  Grantor — Rent,  non-pay- 
ment of.]— By  a  lease  dated  in  1747— after  recit- 
ing that  the  inhabitants  of  the  parish  of  0.  had 
resolved  to  build  a  workhouse  for  the  better 
reception  and  employment  of  the  poor  of  the 
parish,  and  had  applied  to  the  lessor  for  a  lease 
of  the  land  demised,  and  that  the  lessor,  "in 
order  to  encourage  so  good  a  work,"  had  con- 
sented to  grant  the  lease — a  piece  of  land  was 
demised  for  a  term  of  150  years  to  commence 
from  a  day  fifteen  days  later  than  the  date  of 
the  lease,  at  the  yearly  rent  of  Is.,  to  several 
persons,  one  of  whom  was  the  vicar  of  G.,  in 
trust  that  the  lessees  might  build  a  workhouse 
upon  the  land  "  for  the  better  reception  and 
employment  and  for  the  lodging  and  entertain- 
ment only  of  all  the  poor  people  of  the  parish 
of  Gr.  for  the  time  being  dunng  the  said  term,  in 
such  manner  as  they,  or  the  major  part  of  them, 
shall  think  fit,  at  the  proper  costs  and  charges 
of  the  inhabitants  of  the  said  parish  of  G.,  or 
otherwise,  and   not  to  be  let,  mortgaged  for 
money,  or  assigned,  to  any  other  use,  intent  or 
purpose  whatsoever."    And  it  was  agreed  that, 
if  the  inhabitants  should  discontinue  the  pre- 
scribed use  of  the  building  so  to  be  erected,  and 
should  be  willing  to  deliver  it  to  the  landlord,  it 
should  be  lawful  for  them  to  do  so,  he  paying  to 
the  churchwardens  or  overseei-s  of  the  parish  the 
then  value  of  the  building.    The  deed  was  not 
enrolled  under  the  Mortmain  Act,  1736  (9  Geo, 2, 
c.  36).    A  workhouse  was  duly  erected  on  the 
demised  land  pursuant  to  the  lease.    In  1863, 
the  workhouse,  being  no  longer  required,  was 
pulled  down,  and  no  rent  having  been  paid 
under  the  lease  since  1776,  the  site  was  conyeved 
to  a  purchaser  in  fee  under  the  Act  6  &  6  Will.  4, 
c.  69,  enabling  the  parish  authorities  to  sell  the 
sites  of  disused  workhouses.    An  action  having 
been  brought  by  a  person  claiming  to  be  the 
reversioner  against  persons — as  alleged  assigns 
of  the  lease — claiming  under  the  purchase  of 
1862,  to  recover   the  arrears  of  rent: — Held, 
that  the  lease  was  a  lease  for  "  charitable  uses : " 
that  it  failed  to  comply  with  the  requirements 
of  the  Mortmain  Act  in  that,  besides  non-enrol- 
ment, it  did  not  take  effect  in  possession  and 
contained  reservations  in  favour  of  the  grantor 
in  the  shape  of  rent  and  something  in  the  nature 
of  a  right  of  pre-emption  ;  that  these  defects 
were  not  cured  by  s.  73  of  the  Poor  Law  Act, 
1844  (7  &  8  Vict  c.  101),  that  act  curing  only 
one  defect,  namely,  want  of  enrolment;  and 


1889 


POST    OFFICE— POWER    OF    ATTORNEY. 


1890 


that  the  lease  was  accordingly  void  ab  initio, 
and  that  the  Statute  of  Limitations  began  to  ran 
against  the  grantor,  if  not  from  the  execution  of 
the  lease,  at  all  events  from  the  time  the  rent 
ceased  to  be  paid.  Webster  v.  Southey,  36  Ch.  D. 
9;  66  L.  J.,  Ch.  786 ;  66  L.  T.  879 ;  35  W.  R.  622 ; 
52  J.  P.  36— Kay,  J. 

Semble,  land  acquired  by  parish  officers  to 
enable  them  to  perform  their  statutory  obliga- 
tions, as,  for  instance,  by  providing  a  workhouse, 
is  land  acquired  for  a  "  charitable  use."  Burndby 
r.  Barsby  (4  H.  &  N.  690)  questioned,    lb. 

Employment  of  Roman  Catholio  Priest.] — See 
Reg.  v.  JIaslehurst,  ante,  col.  1367. 


POST  OFFICE. 

Post  Office  Order  cashed  through  Bankers— 
legotiable  Instrument.  ] — The  plaintiffs  banked 
with  the  defendants.  It  was  the  duty  of  the  plain- 
tiffs' secretary  to  pay  all  moneys  received  by  him 
on  behalf  of  the  plaintiffs  into  the  defendants' 
bank  to  the  credit  of  the  plaintiffs.    The  secre- 
tary without  the  knowledge  of  the  plaintiffs 
kept  an  account  at  the  defendants'  bank.    He 
paid  into  the   defendants1   bank   to  his   own 
credit  certain  post-office  orders  belonging  to  the 
plaintiffs   which   the  defendants  subsequently 
cashed.     The  post-office  regulations  with  regard 
to  post-office  orders  provide   that,  when   pre- 
sented for  payment  by  a  banker,  they  shall  be 
payable  without  the  signature  of  the  payee  of 
the  receipt  contained  in  the  order,  provided  the 
name  of  the  banker  presenting  the  order  is 
written  or  stamped  upon  it : — Held,  that  there 
had  been  a  wrongful  conversion  of  the  post- 
office  orders  above  mentioned  by  the  defendants  ; 
and  that  the  regulations  of  the  post-office  with 
regard  to  the  payment  of  post-office  orders  pre- 
sented through  bankers  did  not  give  to  those 
instruments  in   the  hands  of  bankers  the  cha- 
racter  of    instruments  transferable  to   bearer 
by  delivery  so  as  to  bring  the  case  within  the 
doctrine  of  Goodwin  v.  Rnbarts  (1  App.  Cas.  476), 
and  thus  give  the  defendants  a  good  title  to  the 
post-office  orders  independently  of  the  authority 
given  to    the  plaintiffs1  secretary.     Fine  Art 
Society  v.  Union  Bank,  17  Q.  B.  D.  705  ;  56  L.  J. , 
Q.  B.  70 ;  55  L.  T.  536  ;  35  W.  R.  114  ;  51  J.  P. 
69— C.  A. 


Telegrams — Subsequently  increased  Charge— 
Authority  of  Clerk — Estoppel.] — Where  a  certain 
sum  is  charged  for  a  telegram  and  the  sender  is 
afterwards  called  upon  to  pay  an  increased  sum : 
— Held,  that  he  is  bound  to  pay  the  amount  so 
claimed,  as  the  Postmaster-General  is  in  no  way 
estopped  from  suing,  and  is  not  bound  by  inac- 
curate representations  made  by  a  clerk  in  his 
employ.  Postmaeter- General  v.  Green,  51  J.  P. 
582— D. 

Liability  of  Postmaster-General  to  pay  Tolls.] 
— The  proprietor  of  a  certain  bridge  and  roads  had 
been  empowered  to  construct  the  same  by  36  Geo. 
3,  c.  94  ;  and  it  was  thereby  enacted  that  all  per- 
sons, horses,  cattle,  and  carriages,  should  have  free 
liberty,  upon  payment  of   the  tolls  prescribed 


by  the  act,  to  pass  over  such  bridge  and  roads 
without  hindrance.     For  a  period  of  between 
eighty  and  ninety  years  before  Feb.,  1885,  the 
persons  in  the  employ  of  the  Postmaster-General 
duly  paid  the  tolls,  but  since  that  date  exemption 
for  such  persons  has  been  claimed,  and  the  tolls 
not  paid.      The  proprietors  then  presented  a 
petition  of  right,  the  object  of  which  was  to 
show  that  the  persons  in   the  employment  of 
the  Postmaster-General  were  liable  to  pay  the 
tolls  in  question.     The  Crown  demurred  to  the 
petition  of  right.    The  alleged  liability  depended 
upon  whether  there  was  an  express  enactment 
still  subsisting   and  exempting  the  mails  from 
the  tolls  imposed  by  36  Geo.  3,  c.  24  -.—Held, 
upon  the  construction  of  25  Geo.  3,  c.  57  ;  36 
Geo.  3,  c.  94  ;  3  Geo.  4,  c.  126  ;  4  Geo.  4,  c.  95  ; 
and  1  Vict.  c.  32,  that  the  express  exemption  of 
the  mails  from  tolls  contained  in  25  Geo.  3,  c.  57, 
was  made  applicable  by  the  63rd  section  of  36 
Geo.  3,  c.  94,  to  the  bridge  and  roads  in  question. 
Held,  also,  that  25  Geo.  3,  c.  57,although  partially, 
and  to  a  limited  extent,  repealed  by  3  Geo.  4,  c. 
126,  and  4  Geo.  4,  c.  95,  was  not  by  the  two  last- 
mentioned  acts  repealed  as  to  such  bridge  and 
roads.     Held,  also,  that  the  mails  were  specially 
exempted  from   the  payment  of   tolls  to  the 
proprietors  of  the  bridge  and  roads  by  s.  19  of  1 
Vict.  c.  32,  and  that  the  suppliants  were  not 
entitled  to  any  relief  under  their  petition  of 
right.     Held,  further,  that  neither  usage  nor 
long-continued  practice  could  have  any  effect 
upon  the  facts  in  question.    Northern  Bridge 
Company  v.  Reg.,  55  L.  T.  769— Chitty,  J. 

Bating  Property  of  Postmaster-General  under 
Telegraph  Act.]— See  St.  Gabriel,  Fenchurch  v. 
Williams,  ante,  col.  1375. 

Injunction  to  compel  "Withdrawal  of  Notice  to 
Postmaster.]— B.  was  employed  to  manage  one 
of  L.'s  branch  offices  for  the  sale  of  goods,  and 
resided  on  the  premises  ;  he  was  dismissed  by  L., 
and  on  leaving  gave  the  postmaster  directions  to 
forward  to  his  private  residence  all  letters 
addressed  to  him  at  L.'s  branch  office  : — Held, 
that  B.  had  no  right  to  give  a  notice  to  the  post 
office,  the  effect  of  which  would  be  to  hand  over 
to  him  letters  of  which  it  was  probable  that  the 
greater  part  related  only  to  L.'s  business  ;  and 
that  the  case  was  one  in  which  a  mandatory 
injunction  compelling  the  defendant  to  withdraw 
his  notice  could  properly  be  made,  the  plaintiff 
being  put  under  an  undertaking  only  to  open  the 
letters  at  certain  specified  times,  with  liberty  for 
the  defendant  to  be  present  at  the  opening. 
Hermann  Loog  v.  Bean,  26  Ch.  D.  306  ;  53  L.  J., 
Ch.  1128;  51  L.  T.  442;  32  W.  R.  994;  48 
J.  P.  708— C.  A. 


POWER  OF  ATTORNEY. 

Construction— Operative  part  controlled  by 
Becital.]—  A  power  of  attorney  contained  a 
recital  that  the  donor  was  about  to  return  to 
South  Australia,  and  was  "  desirous  of  appoint- 
ing an  attorney  or  attorneys  to  act  for  him 
during  his  absence  from  England."  The 
operative  part  of  the  deed,  which  gave  the  at- 
torney large  powers  of  mortgaging  the  donor  s 


1891 


PRACTICE    AND    PLEADING. 


1594 


property,  contained  no  mention  of  the  duration 
of  those  powers : — Held,  that  the  operative  part 
of  the  deed  was  controlled  bj  the  recital,  and 
consequently  that  charges  effected  by  the  at- 
torney upon  the  property  of  the  donor  while  he 
was  in  England  were  invalid  as  against  him. 
Daiiby  v.  Coutts,  29  Ch.  D.  500 ;  54  L.  J.,  Ch. 
577  ;  52  L.  T.  401 ;  33  W.  R.  559— Kay,  J. 

General  Words  —  Authority  to  Mort- 
gage.]— A.  gave  a  power  of  attorney  to  B.  to 
manage  real  estate,  recover  debts,  settle  actions, 
also  to  "  sell  and  convert  into  money  "  personal 
property,  and  to  execute  and  perform  any  con- 
tract, agreement,  deed,  writing,  or  thing  that 
might  in  B.'s  opinion  be  necessary  or  proper  for 
effectuating  the  purposes  aforesaid,  or  any  of  them, 
and  "  for  all  or  any  of  the  purposes  "  of  those  pre- 
sents to  use  A.'a  name,  and  generally  to  do  any 
other  act  whatsoever  which  in  B.'s  opinion  ought 
to  be  done  in  or  about  A.'s  concerns  as  fully  as  if 
A.  were  present  and  did  the  same,  his  desire  being 
that  all  matters  respecting  the  same  should 
be  under  the  full  management  and  direction 
of  B. : — Held,  that  the  general  words  were  limited 
by  the  special  purpose  of  the  power  of  attorney, 
and  did  not  authorise  a  mortgage  of  his  personal 
property.  Lewis  v.  Ramsdale,  55  L.  T.  179  ; 
35  W.  R.  8— Stirling,  J. 

Power  to  Pledge.] — A  power  of  attorney 


authorised  the  holder  "from  time  to  time  to 
negotiate,  make  sale,  dispose  of,  assign,  and 
transfer"  a  promissory  note  :— Held,  that  the 
holder  had  no  authority  to  pledge  the  note. 
Jonmenjoy  Coondoo  v.  Watson,  9  App.  Cas. 
561 ;  53  L.  J.,  P.  C.  80 ;  50  L.  T.  411— P.  C. 


Signature   of  Bankruptcy  Petition  on 


behalf  of  Principal.]— A  bankruptcy  petition 
signed  by  an  attorney  on  behalf  of  his  principal, 
is  sufficiently  signed,  provided  that  the  power 
under  which  the  attorney  acts  is  wide  enough 
to  confer  upon  him  the  necessary  authority. 
Richards,  Ex  parte,  Wallace,  In  re,  or  Wallace, 
Ek  parte,  Wallace,  In  re,  14  Q.  B.  D.  22 ;  54 
L.  J.,  Q.  B.  293 ;  51  L.  T.  551 ;  33  W.  R.  66 ; 
1  M.  B.  R.  246— C.  A. 

A  power  "  to  commence  and  carry  on,  or  to 
defend,  at  law  or  in  equity,  all  actions,  suits  or 
other  proceedings  in  which  I  or  my  property 
may  be  in  anywise  concerned,"  was  held  to 
confer  such  authority.    lb. 


POWERS. 

Of  Appointment  under  Wills.]— See  Will. 

Of  Appointment  under    Settlements.]  —  Sec 
Husband  and  Wipe— Settlement. 

Of  Trustees.]— See  Trust  and  Trustee. 

Of  Exeontors.  ]  —  See  Executor  and  Ad- 
ministrator. 


t 


PRACTICE    AND 
PLEADING. 

I.  In  the  House  of  Lords — See  Appeal. 
II.  In  the  Court  op  Appeal — See  Appeal. 

III.  In  the  High  Court  of  Justice. 

(A)  Practice  and  Procedure. 

1.  Rules  of  Court,  1395. 

2.  JurUdiction— Rehearing,  1396. 

3.  Parties  to  Actions   and  Proeeei- 

ings  by  and  against  ParticuUr 

Parties,  1397. 
a.  Married  Women— See  Husband 

and  Wife. 
h.  Companies — See  Company. 

c.  Executors  and  Administratore— 

See   Executor    and    Ad- 
ministrator. 

d.  Infants—  See  Infant. 

e.  Lunatics — See  LUNATIC. 
/.  Partners— Sec  Partnership. 

r.  Third  Parties,  1397. 
i.  Suing  in  Forma  Pauperis,  1397. 
t.  Representative  Parties,  1398. 
j.  8ervice  of  Notice  of  Judgment 
on  Person  not  a  Party,  1399. 
k.  Change  of  Parties, 
i.  On  Death. 

a.  When  Cause   of  Action 

Survives,  1400. 
$.  Practice,  1401. 
ii.  On  Bankruptcy,  1403. 
iii.  On  Birth  of  Parties,  1404. 
iv.  Devolution  of  Interest,  1404. 
I.  Adding  and  striking  out  Parties, 
i.  Plaintiffs,  1404. 
ii  Defendants,  1406. 

4.  Writ  of  Summons. 

a.  Form  and  Contents  of,  1406. 

b.  Special  Indorsement  under  Ont 
IIL,  r.  6,  1408. 

c.  Service  of  Writ,  1409. 

d.  Other  Points,  1411. 

e.  Service  out  of  the  Jurisdiction, 
i.  Practice  as  to,  1411. 

ii.  In  what  Cases  allowed,  14H. 

5.  Appearance  and    Proceedings  in 
Default  of,  1419. 

6.  Judgment    on    specially « indorsed 
Writ  under  Ord.  XIV.,  1421. 

7.  Joinder  of  Causes  of  Action,  1433. 

8.  Intermediate  Proceedings. 

a.  Payment  into  and  oat  of  Coart 
— Funds  in  Court. 

i.  Order  on  Accounting  Parties. 

1425. 
ii.  Payment    into    Court   with 

Defence,  1426. 
iii.  Funds  in  Court,  1428. 

b.  Staying  Proceedings, 
i.  Lis  alibi  pendens,  1430. 

ii.  Non-payment  of  Costs,  1433. 
iii.  Frivolous  and  Vexatious  Ac- 
tions, 1434. 
iv.  Abuse  of  Process,  1436. 
v.  In  other  Cases,  1436. 
e.  Particulars. 

i.  In  what  Cases,  1436. 
ii.  Practice,  1439. 


1398 


PRACTICE    AND    PLEADING. 


1894 


t 


d,  Security  for  Costs, 
i.  Persons  resident  abroad,  1 440. 

ii.  Plaintiff  a  Trustee  in  Bank- 
ruptcy, 1442. 
iii.  Action    not    for    Plaintiff's 

Benefit,  1442. 
iv.  Insolvency  of  Plaintiff,  1443. 
t.  Married  Women,  1443. 
vi.  Fund  in  Court,  1443. 
Tii.  Of    Appeals    to     Court    of 

Appeal — See  Appeal. 
viii.  Of    Appeals    from    County 
Courts  —  See        County 
Coubt. 
ix.  Bemitting  Action  to  County 
Court    in     Default  —  See 
County  Court. 
x.  On  Winding-up  of  Company 

— See  Company. 
xi.  In  Interpleader— See  Intbr- 

PLEADEB. 

e.  Consolidation  of  Actions,  1444. 
/.  Transfer  of  Actions,  1444. 

r.  Discontinuance,  1446. 
t.  Confession  of  Defence,  1447. 
t.  Dismissal  for  want  of  Prosecu- 
tion, 1448. 
j.  Inspection  of  Property,  1449. 
k.  Accounts  and  Inquiries,  1449. 
/.  Mandamus,  Injunction,  Receiver, 
i.  Effect   of    Judicature    Act, 
1873,  s.  25,  sub-s.  8... 1453. 
ii.  Prerogative  Mandamus — See 

MANDAMUS. 

iii.  Injunction  —  See    Injunc- 
tion. 
iy.  Receiver. 

a.  In  what  Cases,  1454. 

0.  The  Application,  1455. 

y.  Practice,  1456. 

9.  Pleading*.— See  infra  (B). 

10.  Third    Parties  —  Notice    claiming 

Contribution  or  Indemnity. 

a.  In  what  Cases,  1457. 

b.  Practice,  1461. 

11.  Demurrer,  Proceedings  in  lieu  of, 

1463. 

12.  Discovery,  Inspection   and  Inter- 

rogatories—See DlBCOVEBY. 

13.  Reference    to     Arbitration  —  Sec 

Abbitbation. 

14.  Trial. 

a.  Place  of  Trial,  1466. 

b.  Mode  of  Trial,  1467. 

c.  Notice  of  Trial,  1471. 

d.  Proceedings  at  Trial,  1472. 

15.  New  Trial,  1474. 

16.  Judgment. 

a.  Practice,  1476. 

b.  Motion  for  Judgment,  1477. 

c.  Betting  Aside,  Varying  or   Im- 

peaching, 1478. 

d.  Effect  of    Judgments,  &c. — See 

Ebtoppbl—J  udgment. 

e.  In  default  of  Appearance — Sec 

supra,  5. 

f.  In   default  of    Pleading  —  See 

infra,  B.  7. 

g .  Ordering    on    Motion  for  New 

Trial — See  supra,  15. 
A.  Under  Ord.  XIV. — See  supra,  6. 

17.  Execution — See  Execution. 

18.  Attachment — See  Attachment. 


19.  Motions,     Summonses,     Petitions. 
and  Orders. 

a.  Motions,  1481. 

b.  Summons. 
i.  Service  of,  1483. 

ii.  Originating  Summons. 
a.  Service  of,  1484. 
0.  Jurisdiction,  1484. 

c.  Petitions,  1487. 

d.  Orders,  1488. 

20.  Proceedings  in  Chambers. 

a.  Judge  at  Chambers,  1492. 

b.  Master  at  Chambers,  1492. 

c.  Chief  Clerk,  1492. 

21.  Court  Fees,  1493. 

22.  Vacations,  1494. 

23.  District    Registry—See    DISTRICT 
Reoibtby. 

24.  Special  Case.  1495. 

25.  Stop  Order,  1495. 

26.  Time— Notice  to  Proceed,  1496. 

27.  Interpleader  —  See    Inter- 
pleader. 

28.  Affidavit— See  Evidence. 

29.  Evidence— See  Evidence. 

30.  Costs—Sec  Costs. 

31.  Proceedings  in  particular  Actions. 

a.  Actions  for  Recovery  of  Land — 
Ejectment,  1496. 

b.  Administration  Actions  —  See 
Executor  and  Adminis- 
trator. 

e.  Partition  Actions — See  Pabti- 
tion. 

d.  Partnership  Actions—  See  Part- 
nership. 

(B)  Pleadings. 

1.  Generally,  1497. 

2.  Statement  of  Claim,  1498. 

3.  Defence,  1499. 

4.  Set-off  and  Counterclaim,  1500. 

5.  Amendment  of  1501. 

6.  Striking  out,  1504. 

7.  Default  in  Pleading  and  Proceed- 
ings thereon,  1506. 

IV.  In  the  Pbobate,  Admiralty  and 
Divobce  Division  —  See  Husband 
and  Wife— Shipping — Will. 

V.  In  the  Coubt  op  Bankruptcy — See 
Bankruptcy. 

VI.  In  the  Judicial  Committee  op  the 
Pbivy  Council—  See  Colony. 

VII.  In  the  County  Coubt — See  County 
Coubt. 

VIII.  In  Ecclesiastical  Court — See  Eccle- 
siastical Law. 

IX.  On  Appeal  from  Supebiob  Coubt— 
See  Appeal. 

X.  On  Winding-up  Companies—  See  Com- 
pany. 

XI.  In  Administration  Actions  —  See 
Executor  and  Administrator. 

XII.  Under  Tbustee  Acts— *Siw  Trust  and 
Trustee. 

XIII.  Under    Lands    Clauses    Act  —  See 
Lands  Clauses  Act. 


1895 


PRACTICE    AND    PLEADING. 


1896 


IIL    IH    THE    HIGH  COURT    OF    JUSTICE. 

(A)  Practioe  and  Procedure. 

1.    RULES    OF    COURT. 

"Cause  then  pending."] — A  judgment  was 
delivered  before  the  Rules  of  1883  came  into 
operation,  by  which  the  action  was  dismissed  and 
the  plaintiff  was  ordered  to  pay  the  costs.  The 
taxing-master's  certificate  was  made  after  the 
Rules  of  1883  had  come  into  operation : — Held, 
that  the  latter  rules  applied  as  the  action  was  a 
"  cause  then  pending "  within  the  meaning  of 
the  preface  of  the  latter  rules.  Bnewell  v.  Coaks, 
57  L.  J.,  Ch.  101 ;  67  L.  T.  742  ;  36  W.  R.  65 
—C.  A. 

"  Forms  shall  be  used."  1 — "  The  forms  used  in 
the  appendix  shall  be  followed  with  such  varia- 
tions as  circumstances  may  require,"  means  that 
those  forms  can  only  be  varied  for  the  purpose 
of  making  them  to  be  in  accordance  with  the 
terms  of  the  order.    lb. 


2.   JURISDICTION— REHEARING. 

Rehearing— Power  of  Court  or  Judge.] — If  a 

petition  is  heard  on  its  merits,  and  is  dismissed 
on  the  ground  that  the  petitioner  has  failed  to 
make  out  his  case,  he  cannot  on  the  subsequent 
discovery  of  fresh  evidence  in  support  of  his 
case  present  a  fresh  petition  for  the  same  object, 
without  leave  of  the  court  previously  obtained. 
House,  Ex  parte,  May,  In  rr,  28  Ch.  D.  516  ;  54 
L.  J.,  Ch.  338  ;  52  L.  T.  78 ;  33  W.  R.  917— 
C.A. 

The  shareholders  in  a  company  passed  an  extra- 
ordinary resolution  to  wind  up  the  company  volun- 
tarily, but  the  resolution  was  void,  the  majority 
of  members  who  voted  not  being  entitled  to  vote. 
A  creditor  filed  a  petition  in  the  Chancery  Court 
of  the  Duchy  of  Lancaster  for  a  supervision 
order  or  for  a  compulsory  winding-up  order,  and 
as  the  court  and  the  petitioner  were  ignorant  of 
the  fact  that  the  resolution  was  invalH,  a  super- 
vision order  was  made.  Five  months  afterwards 
the  petitioner  discovered  the  invalidity  of  the  re- 
solution, and  then  moved  before  the  Vice-Chan- 
cellor that  the  supervision  order  might  be  dis- 
charged, and  a  compulsory  winding-up  order 
made.  This  motion  having  been  refused  by  the 
Vice- Chancellor  on  the  ground  of  want  of  juris- 
diction to  rehear  the  petition,  the  petitioner 
appealed  from  the  refusal  of  the  motion,  and 
also  applied  to  the  Court  of  Appeal  for  leave  to 
appeal  against  the  original  order  notwithstand- 
ing the  lapse  of  time.  Semble,  the  Vice-Chan- 
cellor  had  no  power  to  rehear  the  petition  himself. 
Manchester  Economic  Building  Society,  In  re,  24 
Ch.  D.  488  ;  53  L.  J.,  Ch.  116 ;  49  L.  T.  703  ; 
32  W.  R.  325— C.  A. 

Order  made  but  not  drawn  up.] — Whether 

a  judge  can  rehear  in  chambers  an  order  which  he 
has  previously  made  in  chambers,  but  which  has 
not  been  drawn  up.  Quaere.  Adam-  Eyton,  In 
re,  Charlesworth,  Ex  parte,  36  Ch.  D.  299  ;  67 
L.  J.,  Ch.  127— C.  A. 


—  Order  made  and  drawn  up.  1 — A  charging 
order  under  the  Solicitors  Act,  made  by  a  judge 


of  the  High  Court,  sitting  in  bankruptcy  is  not 
an  order  made  by  him  under  his  bankruptcy 
jurisdiction,  within  s.  104  of  the  Bankruptcy 
Act,  1883,  and  therefore  cannot  be  reviewed, 
rescinded  or  varied  by  him  after  it  has  been 
drawn  up.  Brown,  Ex  parte,  Suffield  f  WatU, 
In  re,  20  Q.  B.  D.  693  ;  58  L.  T.  911 ;  36  W.  R. 
584  ;  5  M.  B.  R.  83— C.  A. 

Though  an  ex  parte  order  has  been  drawn  up 
and  entered,  the  party  affected  thereby  is  at 
liberty  to  apply  for  the  discharge  to  the  judge 
who  made  the  order  ;  the  order  being  ex  parte, 
such  an  application  does  not  involve  a  rehearing. 
Boyle  v.  Sacker,  39  Ch.  D.  249  ;  58  L.  T.  822 : 
37  W.  R.  68— C.  A. 

Re-argument,  when  allowed.] — The  court 
declined  to  allow  a  case  to  be  re-argued  on  the 
ground  that  an  enactment  in  the  Conveyancing 
and  Law  of  Property  Act,  1881,  had  been  over- 
looked. Birmingham  Land  Company  v.  London 
and  North-  Western  Railway,  34  Ch.  D.  261 ; 
56  L.  J.,  Ch.  966  ;  65  L.  T.  699  ;  35  W.  R.  173 
—C.A. 

Bill  of  Review — Summons  for  leave  to  bring 
Action  in  the  Nature  of— High  Court  or  Govt 
of  Appeal.] — A  defendant  took  out  a  summons 
asking  that,  notwithstanding  the  order  made  in 
the  action,  he  might  be  at  liberty  to  commence 
an  action  against  the  plaintiff  in  the  nature  of 
a  bill  of  review  grounded  upon  new  matter,  dis- 
covered after  the  making  of  the  orders  :— Held, 
that  the  old  jurisdiction  of  the  Court  of  Chancery 
to  entertain  an  action  in  the  nature  of  a  bill  of 
review  was  unaffected  by  the  Judicature  Act, 
though  the  leave  to  bring  such  an  action  was 
more  usually  obtained  now  by  summons  than  by 
petition.  The  grounds  for  obtaining  the  lesw 
were  precisely  the  same  as  existed  before  the 
acts  ;  namely,  the  evidence  discovered  must  be 
shown  to  be  "material,  and  must  have  been  dis- 
covered since  the  decision,  and  it  must  be  shown 
that  it  could  not  with  reasonable  diligence  have 
been  discovered  before  : — Held  also,  that  an  ap- 
plication to  institute  an  action  in  the  nature  of 
a  bill  of  review  is  part  of  the  original  jurisdic- 
tion of  the  High  Court,  and  such  an  application 
should  be  made  to  the  High  Court,  and  not  to 
the  Court  of  Appeal,  which  has  no  original  juris- 
diction of  that  kind.  Falcke  v.  Scottish  i«; 
perial  Insurance  Company,  67  L.  T.  39 ;  35 
W.  R.  794— Kay,  J. 

Retrial  after  Juror  withdrawn.]— &«  Thome* 
v.  Exeter  Flying  Poet,  post,  col.  1474. 

Striking  out  Scandalous  and  Impertinent 
Matter.]— An  application  was  made  that  certain 
parts  of  a  bill  of  costs  delivered  might  be  ex- 
punged for  scandal  and  impertinency.  It  was 
contended,  in  opposition,  that  the  jurisdiction  of 
the  court  was  confined  to  scandalous  and  imper- 
tinent matter  in  pleadings  and  affidavits,  and 
that,  therefore,  the  application  could  not  be 
entertained  : — Held,  that  every  proceeding,  of 
whatever  nature,  in  the  Court  of  Chancery, 
which  was  made  the  vehicle  for  the  introduction 
of  scandalous  or  irrelevant  matter,  could  be 
amended  or  otherwise  dealt  with  under  the 
general  jurisdiction  of  the  court.  MUler%  In  re, 
French,  In  re,  Love  v.  Hills,  64  L.  J.,  Ch.  205 : 
51  L.  T.  853  ;  33  W.  R.  210— Kay,  J. 


1897 


PRACTICE    AND    PLEADING. 


1398 


Of  Court  to  Amend.]— See  Cropper  v.  Smith, 
post,  col.  1601. 

Judge  in  Chambers.]— &*  infra,  20,  a. 

Chancery  Division— Action  for  less  than  £10.] 
—An  action  in  respect  of  a  sum  of  less  than  10f. 
cannot  be  maintained  in  the  Chancery  Division. 
H 'ettbury  -  on  -  Severn  Sanitary  Authority  v. 
Meredith,  30  Ch.  D.  387  ;  55  L.  J.,  Ch.  744  ;  52 
L  T.  839  ;  34  W.  R.  217— C.  A.  [By  Rules  of 
Supreme  Court,  1883,  the  Chancery  Consolidated 
General  Orders  of  1860  are  repealed.] 


3.  PARTIES  TO  ACTIONS  AND  PROCEED- 
INGS BY  AND  AGAINST  PARTICULAR 
PARTIES. 

a.   Married    Women— See    Husband    and 

Wife. 

b.    Companies— See  Company. 

<*.   executors    and    administrators — see 
Executor  and  Administrator. 

d.    Infants—  See  Infant. 

e.    Lunatics — See  Lunatic. 

/.   Pabtnebs — See  Partnership. 

g.    TaiRD  Parties, 

Intervention  by.l — A  stranger  to  an  action 
injuriously  affected  through  any  judgment 
suffered  by  default  may  intervene  in  one  of 
two  ways.  He  may  either  obtain  the  defen- 
dant's leave  to  use  the  defendant's  name,  if 
the  defendant  has  not  already  bound  himself 
to  allow  such  use  of  his  name  to  be  made ;  and 
he  may  thereupon,  in  the  defendant's  name, 
apply  to  have  the  judgment  set  aside  on  terms. 
Or  he  may  take  out  a  summons  in  his  own  name 
at  chambers,  to  be  served  on  both  the  defendant 
and  plaintiff,  asking  leave  to  have  the  judgment 
set  aside,  and  to  be  at  liberty  to  defend  the  action 
on  terms.  Per  cur.  Jacques  v.  Harrison,  12 
Q.  B.  D.  165  ;  53  L.  J.,  Q.  B.  137  ;  50  L.  T.  246  : 
32  W.  R.  471— C.  A. 

lotiee  el  aiming  Contribution  or  Indemnity.] 
— See  infra,  10. 


h.    SuiNa  in  FobmI  Pauperis. 

Imvo,  how  granted.]— Leave  to  present  a 
petition  in  forma  pauperis  will  be  granted  on 
motion  ;  bat  such  leave  may  also  be  obtained  by 
summons  in  chambers.  Lewin.  In  re.  33  W.  R. 
128— Xay,  J. 

Proceedings  on  Crown  Side.]— A  party  to 
proceedings  on  the  Crown  side  of  the  Queen's 
Bench  Division  cannot  be  admitted  to  proceed 
as  a  pauper.    Mull  enri  sen  v.  Coulson,  21  Q.  B. 


D.  3 ;  57  L.  J.,  Q.  B.  464 ;   58  L.  T.  562 ;  36 
W.  R.  811— D. 

Bight  to  be  heard  In  Person.] — A  person  who 
has  been  admitted  to  sue  as  a  pauper,  but  to 
whom  no  counsel  has  been  assigned,  is  entitled 
to  be  heard  in  person.  Tucker  v.  Collinton  or 
Cotterell,  16  Q.  B.  D.  662  ;  56  L.  J.,  Q.  B.  224  ; 
54  L.  T.  263  ;  34  W.  R.  364— C.  A. 

Appeal  —  Affidavits,] — Where  a  party  who 
has  not  sued  or  defended  as  a  pauper  in  the 
court  below  applies  for  leave  to  appeal  in  forma 
pauperis,  the  court  will  follow  by  analogy  Ord. 
XVI.  rr.  22,  23,  and  24,  and  not  the  old  practice 
as  to  such  appeals.  A  married  woman  suing 
without  a  next  friend,  her  husband  not  being  a 
party,  applied  for  leave  to  appeal  in  forma  pau- 
peris : — Held,  that  her  husband  as  well  as  herself 
must  make  the  affidavit  required  by  rule  22. 
Roberts,  In  re,  Kiff  v.  Roberts,  33  Ch.  D. 
266  ;  36  W.  R.  176— C.  A. 

Taxation  of  Plaintiff's  Costs — Remuneration 
for  Solicitor  and  Counsel.] — Under  the  Rules  of 
the  Supreme  Court,  1883,  Ord.  XVI.  rr.  24,  25, 
26,  27,  31,  a  successful  plaintiff  in  an  action  in 
forma  pauperis  tried  before  a  judge  and  jury  is 
entitled  upon  taxation  as  against  the  defendant 
to  costs  out  of  pocket  only,  and  cannot  be 
allowed  anything  for  remuneration  to  his  soli- 
citor or  fees  to  counsel.  Carson  v.  Pichersgill. 
14  Q.  B.  D.  859  ;  54  L.  J.,  Q.  B.  484  ;  62  L.  T. 
950 ;  33  W.  R.  589  ;  49  J.  P.  612— C.  A. 


i.    Representative  Pabties. 

Fund  raised  by  Voluntary  Subscriptions— 
Action  by  some  Members  of  Committee  on  behalf 
of  all  against  former  Member.]— An  action  was 
brought  by  five  of  the  members  of  a  church 
building  committee,  on  behalf  of  themselves 
and  the  other  members  of  the  committee,  against 
a  former  member,  claiming  an  account  of  all 
moneys  received  and  paid  by  him  in  respect  of 
the  church  building  fund  during  the  period  of 
his  membership.  The  fund  was  raised  by  volun- 
tary subscriptions ;  seventeen  persons  having 
constituted  themselves  into  a  committee  to  re- 
ceive subscriptions  for  the  purpose  of  improving 
the  church  of  the  parish,  and  to  apply  the  moneys 
thus  collected : — Held,  that,  the  members  of  the 
committee  being  mere  agents  of  the  subscribers, 
the  action  could  not  be  maintained  by  some  of 
the  agents  agai nst  others.  St  rickland  v.  Weldon, 
28  Ch.  D.  426  ;  54  L.  J.,  Ch.  452  ;  52  L.  T.  247  ; 
33  W.  R.  646— Pearson,  J. 

Cestui  que  Trust — Interest  entitling  Party  to 
bring  Action.] — To  entitle  a  third  person  not 
named  as  a  party  to  a  contract,  to  sue  either  of 
the  contracting  parties,  that  third  person  must 
possess  an  actual  beneficial  right  which  places 
him  in  the  position  of  cestui  que  trust  under  the 
contract.  By  a  deed  of  separation  between  hus- 
band and  wife,  the  husband  covenanted  with  the 
trustees  to  pay  them  an  annuity  for  the  use  of 
the  wife  and  two  eldest  daughters,  and  also  to 
pay  to  the  trustees  all  the  expenses  of  the  main- 
tenance and  education  of  the  two  youngest 
daughters.  On  one  of  the  two  youngest  daughters 
subsequently  attaining  sixteen  the  husband  re- 


1399 


PRACTICE    AND    PLEADING. 


1400 


fused  any  longer  to  maintain  her,  whereupon 
she  brought  an  action  by  her  next  friend  against 
the  husband  and  the  trustees  of  the  separation 
deed  to  enforce  the  husband's  covenant,  the 
trustees  having  refused  to  allow  their  names  to 
be  used  as  plaintiffs  : — Held,  that  upon  the  con- 
struction of  the  deed  the  plaintiff  was  not  in  the 
position  of  cestui  que  trust  under  the  covenant 
so  as  to  entitle  her  to  maintain  the  action,  but 
liberty  was  given  to  her  to  amend  by  adding  the 
trustees,  the  wife,  and  the  other  daughters,  or 
any  of  them,  as  plaintiffs.  The  trustees  refused 
to  be  joined  as  plaintiffs,  and  the  statement  of 
claim  was  amended  by  making  the  wife  a  co- 
plaintiff  : — Held,  that  she  had  such  an  interest 
as  entitled  her  to  sue,  the  deed  being  an  arrange- 
ment between  the  husband  and  wife,  and  the 
trustees  being  introduced  on  her  behalf  in  order 
to  get  over  the  difficulty  that  the  husband  and 
wife  could  not  at  law  sue  each  other,  so  that  the 
trustees  were  to  be  considered  trustees  for  the 
wife,  and  if  they  refused  to  sue,  she  could  sue  in 
equity.  Oandy  v.  Oandy y  30  Ch.  D.  57  ;  54 
L.  J.,  Ch.  1154  ;  53  L.  T.  306 ;  33  W.  R.  803 
— C.  A. 

Refusal   of    Trustee    to    sue — Special 

Circumstances.] — By  his  will  a  testator  ap- 
pointed executors,  and  bequeathed,  amongst 
other  legacies,  the  sum  of  10,0001.  to  J.  M. 
J.  M.  settled  8,0002.,  part  of  such  legacy, 
upon  his  children,  and  E.  B.  and  J.  H.  were 
appointed  trustees  of  the  settlement.  The 
8,0002.  was  paid  by  the  executors  of  the 
testator's  will  to  E.  B.,  one  of  the  trustees  of 
the  settlement,  upon  his  sole  receipt,  and  the 
same  was  subsequently  converted  by  him  to  his 
own  use.  He  absconded  and  was  made  bankrupt, 
and  a  trustee  in  bankruptcy  was  appointed.  An 
action  was  then  commenced  by  C.  M.,  one  of  the 
children  of  J.  M.,  against  the  executors  of  the 
testator's  will,  and  also  against  the  trustee  in 
bankruptcy  of  E.  B.  and  J.  H.,  to  recover  the 
8,0002.  The  plaintiff  by  his  statement  of  claim 
alleged  that,  although  he  had  requested  the  de- 
fendant J.  H.  so  to  do,  such  defendant  had  re- 
fused to  take  or  concur  in  any  proceedings  for 
the  recovery  of  the  8,000Z.  from  tne  estate  of  the 
testator,  or  from  his  executors.  A  summons  was 
taken  out  on  behalf  of  the  defendants,  the  exe- 
cutors of  the  testator,  asking  that  the  action 
might  be  dismissed  with  costs  as  against  them, 
on  the  ground  that  the  statement  of  claim  dis- 
closed no  reasonable  cause  of  action  against 
them : — Held,  that,  although  a  mere  refusal  to 
sue  on  the  part  of  a  trustee  did  not  entitle  a 
cestui  que  trust  to  sue  in  his  own  name,  yet  the 
circumstances  of  this  case  were  special  enough 
to  render  it  proper  that  he  should  so  sue.  But 
held  that,  in  order  to  guard  against  a  multitude 
of  actions,  all  the  other  cestuis  que  trust  must  be 
made  defendants  to  this  action.  Meldrum  v. 
Scorer,  56  L.  T.  471— Kay,  J. 


j.    Sebvice  of  Notice  op  Judgment  on 
a  Person  not  a  Party. 

On  Purchaser  —  Appearance  —  Setting  aside 
Order  for  Service.] — In  an  action  for  adminis- 
tration, judgment  for  administration  was 
delivered  on  the  2nd  June,  1883,  and  in 
November,  1884,  notice  of  the  judgment  was 
served  by  the  plaintiffs,  under  an  order  of  the 


court *on  P.,  a  purchaser  of  part  of  the  testator's 
estate  in  which  the  plaintiff  were  not  interested. 
He  was  not  a  party  to  the  action,  and  it  did  not 
appear  from  the  judgment  how  he  was  affected. 
In  order  to  ascertain  his  position,  he  entered  an 
appearance  on  the  22nd  November,  1884,  under 
Ord.  XVI.  r.  41.  On  finding  that  he  was  not 
affected  by  the  judgment,  he  served  notice  of 
motion  on  the  plaintiffs  that  the  order  directing 
service  might  be  discharged  for  irregularity,  tost 
the  service  might  be  declared  irregular  and 
set  aside,  that  the  appearance  entered  by  him 
thereupon  might  be  vacated,  and  that  the  costs 
of  the  application  and  consequent  on  the  service 
might  be  paid  by  the  plaintiffs.  The  motion 
was  ordered  to  stand  over,  and  P.  was  kept  in 
the  proceedings  till  the  hearing  on  further  con- 
sideration, when  Bacon,  V.-C,  refused  to  give 
him  any  costs  : — Held,  on  appeal,  that  P.  was 
not  a  person  who  ought  to  have  been  served 
under  Ord.  XVI.  r.  40,  and  that  the  service  was 
irregular  ;  that  P.  was  right  in  appearing  to  the 
notice,  that  his  appearance  most  be  vacated,  and 
that  the  plaintiffs  must  pay  the  costs  in  both 
courts,  including  the  costs  of  appearance  and 
all  costs  consequent  on  the  service.  Symo**,  I* 
re,  Betts  v.  Bette,  54  L.  T.  501—  C.  A. 


k.    Change  or  Parties. 

i.    On  Death. 

a.  When  Came  of  Action  Survive*. 

Breach  of  Promise  of  Marriage— Special 
Damage.] — No  action  lies  for  damages  for 
breach  of  promise  of  marriage  against  the 
personal  representatives  of  the  promisor,  un- 
less in  respect  of  special  damage  —  that  is, 
actual  loss  to  the  temporal  estate  of  the 
promisee,  flowing  directly  from  the  breach, 
or  which  may  reasonably  be  supposed  to  have 
been  in  the  contemplation  of  both  parties  at  the 
time  of  the  promise  as  the  probable  result  of  the 
breach  of  it.  Finlay  t.  Ckirney,  20  Q.  B.  D. 
494  ;  57  L.  J.,  Q.  B.  247  ;  68  L.T.664  ;  86W.B. 
534  ;  52  J.  P.  324— C.  A. 

libel— Publication  injurious  to  Property- 
Slander  of  Title.] — An  action  for  defamation, 
either  of  private  character  or  of  a  person  in 
relation  to  his  trade,  comes  to  an  end  on  the 
death  of  the  plaintiff,  but  an  action  for  the 
publication  of  a  false  and  malicious  statement, 
causing  damage  to  the  plaintiffs  personal  estate, 
survives : — Held,  therefore,  that  a  claim  for 
falsely  and  maliciously  publishing  a  statement 
calculated  to  injure  the  plaintiffs  right  of  pro- 
perty in  a  trade-mark  was  put  an  end  to  by  the 
death  of  the  plaintiff  after  the  commencement 
of  the  action  only  so  far  as  it  was  a  claim  for 
libel,  but  that  so  far  as  the  claim  was  in  the 
nature  of  slander  of  title  the  action  survived, 
and  could  be  continued  by  his  personal  repre- 
sentative, who  would  be  entitled  to  recover  on 
proof  of  special  damage.  Hatchard  v.  JApr> 
18  Q.  B.  D.  771;  56  L.  J.,  Q.  B.  397  ;  56  L.  T. 
662  ;  36  W.  R.  576  ;  51  J.  P.  277— D. 

Liability  ex  Contractu  implied  by  Foreign 
Law — Waste.] — A  testator,  domiciled  in  Sag- 
land,  died  leaving  considerable  property  in  that 
country.    He  was  also  entitled  as  "possessor'' 


1401 


PRACTICE    AND    PLEADING. 


1402 


to  the  usufruct  of  three  estates  in  Austria,  Hun- 
guy  and  Croatia,  held  under  three  family  settle- 
ments or  fidei  commisse.    Every  fidei-commiss 
was  subject  to  the  jurisdiction  of  the  land  court 
of  the  district  in  which  the  property  was  situate, 
and  on  every  change  of  possession  (which  could 
take  place  only  on  succession)  the  successor 
made  a  declaration  to  the  court  that  he  took 
possession.    It  was  a  fundamental  principle  of 
Austrian,  Hungarian,  and  Croatian  law  that  the 
"  possessor  "  was  bound  to  maintain  the  subject- 
matter  of  the  fidei-commiss,  and  transmit  it  to 
on  successor  in  the  state  in  which  he  received 
it ;  and  upon  his  death  his  allodial  estate  was 
liable  for  dilapidations.    A  creditor's  action  was 
brought  in  England  by  the  successor  under  the 
Hti-commisse,    against     the     executrix     and 
trustees  of  the  testator  for  administration  of  his 
real  and  personal  estate,  the  plaintiff  claiming 
damages  for  dilapidations.    The  executrix  ob- 
jected that  no  claim  could  be  maintained  in 
England  in  respect  of  any  act  or  default  com- 
mitted abroad,  unless  such  act  or  default  showed 
*  good  cause  of   action    both  in  the  foreign 
country  and  in  England,  and  that,  the  claim 
being  in  the  nature  of  a  claim  for  waste  no 
action  would  lie  in  England  :— Held,  that  the 
action  rested  on  an  implied  contract  or  obliga- 
tion and  not  on  tort,  and  that  the  maxim  Actio 
personalis  moritur  cum  persona  did  not  apply. 
Battkyany  v.  Walford,  36  Ch.  D.  269  ;  56  L.  J., 
Vh.  881 ;  57  L.  T.  206  ;  35  W.  R.  814— C.  A. 

Infringement  of  Trade  Mark.] — An  action  by 
the  registered  owner  of  a  trade  mark  claiming 
an  injunction  restraining  infringement  and 
fraudulent  imitation,  and  the  usual  conse- 
quential relief,  is  not  extinguished  by  the  death 
of  the  plaintiff,  but  survives  to  his  personal 
representatives.  Oakey  v.  Dalton,  35  Ch.  D. 
700;  56  L.  J.,  Ch.  823  ;  57  L.  T.  18  ;  35  W.  R. 
TO-Chitty,J. 

itttai  by  Director  against  Co-direotors  for 
Csatribution— Death  of  one  Defendant.] — L.  and 
two  others  were  directors  of  a  company,  and  on 
various  occasions  authorised  loans  to  be  made  out 
of  the  funds  of  the  company.  The  company  af  ter- 
rains brought  an  action  against  another  director 
lor  such  unauthorised  loans,  and  recovered  judg- 
ment against  him,  which  he  discharged.  He 
then  brought  an  action  for  contribution  against 
the  three  directors,  of  whom  L.  died  after  the 
commencement  of  the  action,  and  his  ad- 
ministrator was  made  a  defendant : — Held,  that 
the  action  survived  against  L.'s  estate.  Jtam- 
'Ml  v.  Edward*,  31  Ch.  D.  100  ;  55  L.  J.,  Ch. 
81 ;  53  L.  T.  949  ;  34  W.  R.  96— Pearson,  J. 


$.    Practice. 

Btfuenee  to  Arbitration  purporting  to  bind 
Isfraceatathree.]— Where  an  action  of  tort 
dying  with  the  person  is  referred  to  arbitration  by 
an  order  made  by  consent,  and  with  a  stipulation 
tint  the  award  shall  bind  the  representatives  in 
the  case  of  the  death  of  either  party,  and  the 
plaintiff  dies  before  the  award,  the  action  abates, 
**d  the  plaintiffs  executors  cannot  be  substi- 
tuted. B&wher  v.  Evans,  15  Q.  B.  D.  565 ;  54 
L  Jn  Q.  B.  421  ;  53  L.  T.  801  ;  33  W.  R.  695- 
GA. 


Co-plaintiff  after   Judgment — Execution.]— 

Where  judgment  is  obtained  by  several  executors, 
and  one  of  them  dies  after  the  entering  of  judg- 
ment, the  survivors  may  issue  execution  in  the 
name  of  all  the  plaintiffs,  and  it  is  unnecessary 
to  have  any  order  for  leave  to  do  so.  Baird  v. 
Thompson,  14  L.  R.,  Ir.  497— Q.  B.  D. 

Order  to  continue  Proceedings  before  Pro- 
bate.]— Where,  after  an  order  directing  the  trial 
of  issues  of  fact  before  a  jury,  one  of  the  plain- 
tiffs died  within  fourteen  days  of  the  date  fixed 
for  the  trial,  the  court,  on  the  application  of  his 
executors,  made  an  order  continuing  the  pro- 
ceedings, the  executors  undertaking  to  apply 
forthwith  for  probate,  and  to  produce  the  same 
at  the  trial  of  the  action  if  obtained.  Hughes  v. 
West,  13  L.  R.,  Ir.  224— V.-C. 

One  of  soveral  Defendants  in  same  Interest — 
Absence  of  Personal  Representative.]— Pending 
an  action  to  make  several  defendants  liable  for 
a  breach  of  trust,  H.  S.,  one  of  the  defendants, 
died  before  decree,  having  made  his  will  ap- 
pointing executors,  who  had  not  proved  the  will. 
It  appearing  that  the  liability  of  the  surviving 
defendants  was  the  same  as  that  of  H.  S.,  the 
court  made  an  order  that  the  suit  should  proceed 
in  the  absence  of  a  personal  representative  of  H. 
S.  Hibernian  Joint  Stock  Company  v.  Fottrell, 
13  L.  R.,  Ir.  335— M.  R. 

Amending  Order — Death  of  Sole  Trustee  In. 
testate.] — Upon  the  death  of  a  sole  surviving 
trustee  intestate,  the  court  made  an  order  for 
the  appointment  of  new  trustees,  and  ordered 
certain  lands  forming  part  of  the  estate  to  vest 
in  the  new  trustees  "  for  the  estate  therein  now 
vested  in  the  heir-at-law  of  the  deceased  trustee.*' 
After  the  order  had  been  passed  and  entered  ad- 
ministration was  taken  out  to  the  estate  of  the  de- 
ceased trustee.  Upon  motion  that  the  order  of  the 
court  might  be  altered  by  substituting  the  legal 
personal  representative  for  the  heir-at-law  of  the 
intestate  trustee  in  accordance  with  s.  80  of  the 
Conveyancing  and  Law  of  Property  Act.  1881, 
the  court  made  a  new  order,  that,  notwithstand- 
ing the  previous  order,  the  land  should  vest  in 
the  now  trustees  •'  for  all  the  estate  therein  now 
vested  in  the  legal  personal  representative  "  of 
the  deceased  trustee.  PiUing's  Trusts,  In  re,  26 
Ch.  D.  432  ;  82  W.  R.  853— Pearson,  J. 

Revivor — Person  attending  Proceedings.] — 
A  person  served  with  notice  of  an  administra- 
tion judgment,  and  having  obtained  liberty  to 
attend  the  proceedings  under  it,  is  in  the  same 
position  as  a  party  to  the  action,  and  is  entitled 
to  obtain  an  order  of  course  to  revive  the  action 
on  the  death  of  the  sole  plaintiff.  Burstall  v. 
Fearon,  24  Ch.  D.  126  ;  53  L.  J.,  Ch.  144  ;  31  W. 
R.  581 — Pearson,  J. 

Revivor  for  purposes  of  Appeal.] — By  a  mar- 
riage settlement  the  property  of  the  wife  was 
vested  in  trustees  upon  trust  for  the  wife,  for  her 
separate  use,  and  in  case  there  should  be  no  issue 
(which  event  happened)  for  the  wife,  her 
executors,  administrators,  and  assigns,  if  she 
survived  her  husband,  but  if  she  died  in  his  life- 
time then  for  the  husband  for  his  life,  and  sub- 
ject thereto  for  such  persons  as  should  be  of  the 


1403 


PRACTICE    AND    PLEADING. 


H04 


wife's  own  kindred  as  she  should  by  will  appoint, 
and  in  default  of  appointment,  for  such  persons 
as  would  be  entitled  under  the  Statutes  of 
Distribution,  in  case  she  had  died  intestate  and 
unmarried.  The  marriage  was  dissol  red  in  1 871 , 
and  in  1872,  the  wife,  in  a  suit  instituted  by  her 
against  her  late  husband  and  the  trustees  of  the 
settlement,  obtained  a  decree  that  she  was 
absolutely  entitled  to  the  property  comprised  in 
the  settlement.  By  her  will,  dated  in  1877,  the 
wife  disposed  of  the  property  as  if  it  were  her 
own  absolutely,  and  died  in  1881,  in  the  lifetime 
of  her  late  husband  : — Held,  in  the  absence  of 
special  circumstances,  that  the  next  of  kin  of 
the  wife  were  not  now  entitled  to  an  oraer  to 
revive  the  suit  or  to  carry  on  proceedings  there- 
in for  the  mere  purpose  of  appealing  against  the 
decree  of  1872.  Fussell  v.  Bonding,  27  Ch.  D. 
237  ;  53  L.  J.,  Ch.  924  ;  61  L.  T.  332  ;  32  W.  R. 
790— Chitty,  J. 

Where,  after  his  action  had  been  dismissed, 
the  plaintiff  died,  the  court  in  which  the  suit 
had  been  pending,  notwithstanding  that  the 
time  for  appealing  had  then  expired,  made  an 
order  giving  liberty  to  the  plaintiffs  personal 
representative  to  carry  on  proceedings,  in  order 
that  he  might  be  in  a  position  to  apply  to  the 
Court  of  Appeal  to  entertain  an  appeal.  Leahy 
v.  Tobin,  19  L.  R.,  Ir.  433— V.-C. 

Death  of  sole  Defendant  after  Notice  of 
Trial — Trustee  in  Bankruptcy— Proceedings  to 
bind  Official  Receiver.] — The  sele  defendant  to 
an  action  who  was  a  trustee  in  bankruptcy  died 
after  the  action  was  set  down  for  trial.  The 
plaintiff  amended  the  writ  and  statement  of 
claim  by  making  the  defendant's  executors  and 
the  official  receiver  in  bankruptcy  parties.  All 
the  new  defendants  appeared  and  the  executors 
put  in  a  defence,  the  official  receiver  took  no 
steps  beyond  appearance.  The  plaintiff  then 
gave  the  official  receiver  and  the  executors 
notice  that  the  action  had  been  restored  to  the 
paper  for  trial,  but  did  not  give  fresh  notice  of 
trial  nor  serve  the  official  receiver  with  notice  of 
motion  for  judgment.  At  the  hearing  the  execu- 
tors appeared,  but  the  official  receiver  did  not : — 
Held,  on  the  merits,  that  the  plaintiff  was 
entitled  to  the  relief  sought,  but  the  official 
receiver  having  been  made  a  party,  a  motion  for 
judgment  against  him  must  be  made  upon  notice 
served  upon  him  in  the  usual  way.  Johnston  v. 
English,  65  L.  J.,  Ch.  910  ;  55  L.  T.  55  ;  35 
W.  R.  29— North,  J. 


11.    On  Bankruptcy. 

Adoption  of  Action  by  Trustee.]  —  Where 
a  trustee  in  bankruptcy  had  been  substituted 
for  the  bankrupt  as  a  defendant  in  an  action 
against  the  bankrupt,  and  had  asked  for  a  state- 
ment of  cluim  : — Held,  that  by  so  doing  he  had 
adopted  the  action  as  it  stood,  and  must  person- 
ally pay  the  costs  of  an  appeal  from  an  interlo- 
cutory order  which  had  been  made  against  the 
defendant  before  his  bankruptcy,  although  he 
had  given  notice  to  the  plaintiff  that  he  did  not 
intend  to  proceed  with  the  appeal.  Borneman 
v.  Wilson,  28  Ch.  D.  53  ;  54  L.  J.,  Ch.  631  ;  51 
L.  T.  728  ;  33  W.  R.  141— C.  A. 

Security  for  Costs.]  —  See  cases,  post,  col. 
1443. 


ill.    On  Birth  of  Parties. 

Supplemental  Aotion.] — Where  an  infant,  who 
is  a  necessary  party  to  an  action,  has  come  into 
existence  after  the  date  of  the  judgment,  and 
proceedings  have  been  taken  under  the  judgment 
since  the  birth  of  the  infant,  but  before  an  order 
under  Ord.  XVII.  r.  4.  adding  the  infant  at 
party,  has  been  applied  for,  the  proper  coarse  is 
to  obtain  an  order  prefaced  with  a  direction  that 
the  action  be  continued  against  him,  and  that 
an  inquiry  be  made  whether  it  is  for  hia  benefit 
that  he  should  be  bound  by  such  proceedings, 
and  that  if  it  be  so  certified  he  is  to  be  bound 
thereby.  If  it  should  not  be  so  certified,  it  is 
open  for  the  plaintiff  to  proceed  by  supplemental 
action.  Peter  v.  Thomas-Peter,  26  Ch.  D.  181 ; 
53  L.  J.,  Ch.  514  ;  60  L.  T.  176  ;  32  W.  R.  409, 
515— Chitty,  J. 


iv.  Devolution  of  Interest. 

Pendente  lite.] — Where  a  testator  appointed 
his  two  infant  sons  trustees  on  their  attaining 
the  age  of  twenty-one,  and  an  administration 
action  was  commenced  on  the  elder  son  attaining 
twenty-one,  in  which  the  infant  son  was  made 
a  plaintiff,  and  the  elder  son  was  made  defen- 
dant ;  on  the  younger  son  attaining  twenty-one, 
and  becoming  a  trustee,  and  thus  changing  his 
interest  and  liability,  the  court,  on  an  ex  parte 
application  under  Ord.  XVII.  r.  4,  of  the  Boles 
of  Court,  1883,  made  him  a  co-defendant.  £wU. 
In  re,  Go  old  v.  Goold,  51  L.  T.  417— V.-C.  B. 

Assignment  of  Contract — Action  for  8peofte 
Performance.]— A  local  authority,  having  com- 
pulsory powers  of  purchase,  gave  notice  to  a 
landowner  to  treat,  and  the  amount  of  compen- 
sation was  assessed  by  a  jury.  Before  comple- 
tion the  landowner  conveyed  the  land  to  the 
plaintiffs,  subject  to  the  claim  of  the  local 
authority  : — Held,  that  the  plaintiffs  could  main- 
tain an  action  against  the  local  authority  for  the 
specific  performance  of  the  contract  arising  out 
of  the  notice  to  treat  and  subsequent  assessment 
of  value,  without  joining  as  plaintiff  the  land- 
owner to  whom  the  notice  was  given.  B*rr  t. 
Wimbledon  Local  Board,  56  L.  T.  329 ;  35  W.  B. 
404 — Kekewich,  J. 


I.   Adding  and  Striking  out  Pasties. 
i.   Plaintiff* 

Consent.] — A  person  cannot  be  added  as 
plaintiff  without  his  consent  in  writing,  even 
although  he  be  indemnified  against  costs.  Tryo* 
v.  National  Provident  Institution,  16  Q.  B.  D. 
678  ;  55  L.  J.,  Q.  B.  236  ;  54  L.  T.  167 ;  34  W.  B. 
398— D. 

The  case  of  trustee  and  cestui  que  trust  is  not 
excepted  from  the  general  rule  of  Ord.  XVI. 
r.  11,  so  as  to  enable  the  court  or  a  judge  to 
dispense  with  the  consent  in  writing  of  the 
trustee,  upon  the  application  of  a  cestui  que 
trust  to  amend  by  adding  his  trustee  as  co- 
plaintiff  in  an  action  in  respect  of  the  trust 
property.  Beslvy  v.  Besley,  37  Ch.  D.  648 ;  57 
L.  J.,  Ch.  464  ;  68  L.  T.  510  ;  36  W.  B.  604- 
Chitty,  J. 


1405 


PRACTICE    AND    PLEADING. 


1406 


—  Objection  on  Ground  of— Stay  of  Pro- 
ceedings,]—Under  Ord.  XVI.  r.  11  of  the  Rules 
of  Court,  1883,  no  person  can  be  added  as  a 
plaintiff  to  an  action  without  his  written  con- 
sent The  plaintiff  brought  an  action  upon  a 
contract  against  the  defendant,  who  insisted 
that  one  L.  should  be  joined  as  a  co-plaintiff  as 
being  a  party  to  the  contract,  or,  in  the  alterna- 
tire,  that  all  proceedings  in  the  action  should 
be  stayed  until  he  was  so  joined  : — Held,  that 
inasmuch  as  L.  had  not  consented  to  have  his 
name  added  as  a  co-plaintiff,  the  court  had  no 
right  by  a  roundabout  process  to  make  an  order 
which  would  practically  override  the  provisions 
of  Ord.  XVI.  r.  11.  Jackson  v.  KrUger,  54  L.  J., 
Q.  B.  446  ;  62  L.  T.  962— D. 

Adding  two  new  Plaintiffs  at   Trial.]— In 
an  action  by  a  company,  lessees  for  a  long  term 
of  eleven  houses,  of  which  ten  were  unlet  and  in 
their  possession  when  the  writ  was  issued,  and 
by  their  tenant  of  the  remaining  house  as  co- 
plaintiff,  for    an    injunction    and  damages  in 
respect  of  an  alleged  nuisance  from  noise ;  the 
tenant,  after  delivery  of  the  statement  of  claim 
and  notice  of  trial,  refused  to  go  on  with  the 
action  as  co-plaintiff.     The  other  ten   houses 
having  in  the  meantime  been  let,  the  plaintiff 
company  applied  at  the  trial  for  leave  to  amend 
by  adding  as  co-plaintiffs  two  of  the  new  tenants, 
who  consented  to  be  added.  The  application  was 
panted  as  being  within  the  discretion  given  by 
Boles  of  the  Supreme  Court,  1883,  Order  XVI. 
r.  11,  of  allowing   the  names  of    any  parties, 
whether  plaintiffs  or  defendants — "  whose  pre- 
*ence  before  the  court  may  be  necessary  in  order 
to  enable  the  court  effectually  and  completely 
to  adjudicate  upon  and  settle  all  the  questions 
iniolved  in  the  cause  or  matter  " — to  be  added. 
House  Property  and  Investment    Company  v. 
Horse  Natl  Company,  29  Ch.  D.  190 ;  54  L.  J., 
Ch.  715 ;  62  L.  T.  507 ;  33  W.  R.  562— Chitty,  J. 

Adding  Co-plaintiff— Original  Plaintiff  haying 
u  light  to  8ue.]— The  tenant  for  life  of  a 
trust  fund  brought  an  action  against  the  trustees 
to  make  them  liable  for  an  improper  investment. 
The  trustees  by  their  defence  alleged  that  they 
had  made  the  investment  in  question  at  the 
request  of  the  plaintiff.  The  plaintiff  thereupon 
applied  for  leave  to  amend  by  adding  as  co- 
plaintiff  his  son,  who  had  a  reversionary  interest 
in  the  fund  : — Held,  that  Ord.  XVI.  r.  11,  does 
not  authorise  the  allowing  a  plaintiff  who  has 
no  right  to  sue,  to  amend  by  joining  as  co- 
plaintiff  a  person  who  has  such  a  right.  Walcott 
▼.  Lyons,  29  Ch.  D.  584  ;  54  L.  J.,  Ch.  847 ;  52 
L  T.  399— C.  A. 

Incapacity  of  Plaintiff  pending  Action — 
Adding  Hext  Friend.]— The  plaintiff,  subse- 
quently to  the  commencement  of  the  action, 
became  incapable  from  infirmity  of  transacting 
business.  The  defendants  obtained  orders  that 
the  plaintiff  should  make  an  affidavit  of  docu- 
ments, and  that  the  defendants  should  be  at 
liberty  to  administer  interrogatories.  The  plain- 
tiffs brother,  who  for  many  years  had  managed 
the  plaintiff's  business  affairs,  made  an  affidavit 
of  documents  and  answered  the  interrogatories. 
The  defendants  took  out  a  summons  under 
Ord.  XXX  I.  r.  21,  that  the  action  might  be  dis- 
missed with  costs  on  the  ground  of  non-com- 
pliance with  the  orders.    The  plaintiff's  brother 


also  took  out  on  behalf  of  the  plaintiff  a  sum- 
mons for  leave  to  amend  by  adding  himself  as 
next  friend,  and  that  the  two  affidavits  which 
he  had  made  might  be  accepted  as  compliance 
with  the  said  orders  of  the  court : — Held,  that 
in  the  absence  of  evidence  that  the  action  was 
commenced  without  the  plaintiff's  sanction,  no 
order  could  be  made  on  the  defendants'  sum- 
mons, and  the  plaintiff's  summons  must  be 
allowed.  But  as  this  was  by  way  of  indulgence 
to  the  plaintiff,  costs  of  both  summonses  to  be 
paid  by  the  plaintiff.  Cardtoell  {Lord)  v.  Tom- 
Union,  54  L.  J.,  Ch.  957  ;  52  L.  T.  746  ;  38  W.  R. 
814— V.-C.  B. 

Necessary  Parties — Covenant  with  Separate 
Covenantees,] — The  plaintiff  and  two  other 
persons  conveyed  to  the  defendants  certain 
pieces  of  land,  and  by  the  deed  of  conveyance 
the  defendants  entered  into  a  separate  covenant 
with  each  of  the  vendors,  his  heirs  and  assigns, 
to  make  a  road  over  the  property  conveyed,  and 
to  allow  the  vendors,  their  respective  heirs, 
tenants,  and  assigns,  to  use  the  road.  In  an 
action,  by  the  plaintiff  alone  for  specific  per- 
formance of  the  covenant : — Held,  that  the 
other  two  covenantees  ought  to  be  added  as 
parties.  Dix  v.  Great  Western  Railway,  55 
L.  J.,  Ch.  797  ;  54  L.  T.  830 ;  34  W.  R.  712— 
Kay,  J. 

11    Defendants. 

Application  not  Ex  parte.] — An  application 
to  add  a  defendant  to  an  action  must  not  be 
made  ex  parte.  Colbeck,  In  re,  Hall  v.  Colbeck, 
36  W.  R.  259— Kay,  J. 

Adding  Joint  Contractors  at  Defendant's  in- 
stance.]— Where  an  action  is  brought  against 
one  only  of  several  joint  contractors  the  defen- 
dant is  entitled  as  of  right,  under  Ord.  XVI. 
r.  11,  to  have  his  co-contractors  joined  as  defen- 
dants, on  the  authority  of  Kendall  v.  Hamilton 
(4  App.  Cas.  504).  Pilley  v.  Robinson,  20  Q.  B. 
D.  155  ;  57  L.  J.,  Q.  B.  54  ;  68  L.  T.  110;  36 
W.  R.  269 -D. 

Since  the  abolition  of  pleas  in  abatement,  the 
proper  course  for  a  defendant  desirous  of  raising 
the  objection  of  the  non-joinder  as  a  defendant 
of  some  one  jointly  liable  with  him,  is  to  apply 
by  summons  at  chambers,  supported  by  an 
affidavit  stating  the  facts,  and  snowing  that  the 
person  alleged  to  be  jointly  liable  is  within 
the  jurisdiction,  to  have  the  action  stayed. 
Mac  Arthur  v.  Hood,  1  C.  &  E.  550— Day,  J. 

Non-joinder — Discretion  of  Court] — Upon  an 
application  under  Ord.  XVI.  r.  11,  by  the  de- 
fendant or  defendants  on  the  record,  that  other 
defendants  be  added,  the  court  or  judge  may 
exercise  a  discretion,  and  the  order  will  not  be 
made  unless  it  is  shown  that  the  non-joinder 
complained  of  will  prejudice  the  parties  to  the 
action,  or  that  "  the  presence  before  the  court 
of  additional  parties  is  necessary  in  order  to 
enable  the  court  effectually  and  completely  to 
adjudicate  upon  and  settle  all  the  questions 
involved  in  the  cause  or  matter."  Ledue  v. 
Ward,  54  D.  T.  214  ;  5  Asp.,  M.  C.  571— D. 

Adding,  In  what  eases — Practioe  of  Queen's 
Bonoh  Division.] — M.  and  R.  entered  into  certain 


1407 


PRACTICE    AND    PLEADING. 


1408 


contracts  with  P.  to  build  a  mansion,  and  sub- 
sequently assigned  to  8.  &  Co.  all  their  share, 
right,  and  interest  in  all  moneys  then  or  there- 
after to  become  due  and  owing  under,  or  which 
should  be  or  become  payable  by  P.  in  respect  of 
any  matters  connected  with  or  arising  out  of  the 
said  contracts.  In  an  action  by  S.  &  Co. 
against  P.  for  an  account,  and  for  payment  of 
what  was  due  to  them  under  the  said  contracts, 
P.  moved,  under  Ord.  XVI.  r.  11,  that  M.  and  R. 
should  be  added  as  parties  to  the  action  : — Held, 
that,  although  the  Queen's  Bench  Division  had 
the  same  jurisdiction  as  that  exercised  by  the 
Chancery  Division  in  actions  taking  the  shape 
of  a  general  dealing  with  the  subject-matter,  yet 
it  was  not  within  the  simplicity  aimed  at  in  the 
Queen's  Bench  Division  to  join  the  parties  as 
defendants,  no  relief  being  sought  against  them 
by  the  plaintiffs,  and  that  the  court  would  not 
join  them  as  plaintiffs  without  notice  to  them, 
and  hearing  them  as  to  their  interest  and  the 
terms  on  which  the  order  should  be  made. 
Sanders  v.  Peek,  50  L.  T.  630  ;  32  W.  B.  462— 
D. 

Action  by  one  Executor — Absconding  Execu- 
tor.]— One  of  two  executors  having  absconded, 
the  other  executor  sued  a  mortgagor.  The  court 
refused  on  the  application  of  the  defendant  to 
add  the  absconding  executor  as  defendant. 
Drage  v.  Hartopp,  28  Ch.  D.  414  ;  54  L.  J.,  Ch. 
434  ;  51  L.  T.  902 ;  33  W.  R.  410— Pearson,  J. 

Adding  Puisne  Mortgagees  after  Judgment  of 
Foreclosure.] — Where  judgment  in  a  foreclosure 
action  has  been  pronounced,  but  has  not  been 
drawn  up  and  entered,  and  it  was  discovered  that 
there  were  puisne  mortgagees,  leave  was  given 
under  Rules  of  Supreme  Court,  1883,  Ord.  XVI. 
r.  11,  to  amend  the  writ  and  statement  of  claim 
by  making  the  puisne  mortgagees  defendants. 
Keith  v.  Butcher,  25  Ch.  D.  750 ;  53  L.  J.,  Ch. 
640  ;  50  L.  T.  203  ;  32  W.  R.  378— Kay,  J. 

Joining  Bankrupt  Mortgagor  in  Possession — 
foreclosure  Action  against  Trustee.] — See  Sut- 
cliffe  v.  Wood,  post,  col.  1424. 

Necessary  Parties — Mining  Lease — Lessor.] — 
In  an  action  by  a  copyholder  to  restrain  the 
working  of  coal  under  his  land  by  A.,  who 
claimed  to  be  entitled  to  do  the  acts  complained 
of  by  virtue  of  a  lease  from  B.,  the  lord  of  the 
manor,  B.  was  by  amendment  added  as  a  defen- 
dant, on  the  allegation  that  he  claimed  the  right 
by  himself  and  his  lessees  to  work  the  coal ;  that 
he  justified  the  acts  of  A.,  and  that  he  had  re- 
ceived and  claimed  to  be  entitled  to  receive 
from  A.  rents  and  royalties  in  respect  of  such 
wrongful  working.  On  summons  by  B.  under 
Rules  of  Supreme  Court,  1883,  Ord.  XXV.  r.  4, 
that  the  amended  statement  of  claim  might  be 
struck  out  as  against  him  on  the  ground  that  it 
disclosed  no  reasonable  cause  of  action  against 
him,  and  that  the  action  might  be  dismissed  as 
against  him : — Held,  that  the  lessor  had  been 
properly  added  as  a  defendant.  Shafto  v. 
Bolokow,  Vaughan,  and  Co.,  34  Ch.  D.  725 ; 
56  L.  J.,  Ch.  735  ;  56  L.  T.  608  ;  35  W.  R.  562 
— Chitty,  J. 

Misjoinder— Adding  Solicitors,  where  no  Relief 
•claimed  against  them.]— Where  the  cause  of 
action  against  one  defendant  is  totally  discon- 


nected with  that  against  the  other  defendants, 
except  so  far  as  it  arises  out  of  an  incident  in 
the  same  transaction,  there  is  a  misjoinder,  and 
it  is  not  the  case  contemplated  by  Ord.  XVIII. 
r.  1.  Solicitors  who  were  made  parties  with 
other  defendants  to  an  action,  the  statement  of 
claim  in  which  showed  no  reasonable  cause  of 
action  as  against  them  : — Held,  entitled  under 
Ord.  XXV.  r.  4,  to  an  order  dismissing  the  action 
as  against  them  with  costs,  and  striking  their 
names  out  of  the  proceedings.  BurstaU  t. 
Beyfus,  26  Ch.  D.  35 ;  53  L.  J.,  Ch.  565;  50 
L.  T.  542  ;  32  W.  R.  418— C.  A. 

To  make  solicitors  or  others  parties  to  an  action 
without  seeking  any  relief  against  them,  except 
payment  of  costs  or  discovery,  is  vexations.   lb. 

Architect   a   Defendant— Ho  Gauss  of 


Action  shown.]— The  architect  of  the  defendant 
company  was  made  a  party  to  the  action,  but  the 
statement  of  claim  showed  no  cause  of  action  ai 
against  him  : — Held,  that  his  name  must  be 
struck  out  of  the  proceedings,  and  the  costs  paid 
by  the  plaintiffs,  including  the  costs  of  an  affi- 
davit made  by  the  architect  upon  the  application 
for  such  an  order.  Amot  v.  Heme  Bay  Patilm 
Company,  54  L.  T.  264— Kay,  J. 


Contractor  a  Defendant,] — Contractors 


should  not  usually  be  joined  as  defendants  in  as 
action  against  their  employers  for  damages  done 
in  carrying  out  their  contract.  Serf  v.  Aet«* 
Local  Bmrd,  55  L.  J.,  Ch.  569  ;  54  L.  T.  379— 
Pearson.  J. 


Adding  Parties  in  personam  in  Aotion  in  rem.] 
— See  The  Bowetfield,  post,  Shipping  (Prac- 
tice). 


4.  WRIT  OF  SUMMONS. 

a.  Form  and  Contents  of. 

Against  Foreign  Company.] — A  writ  issued 
against  a  foreign  company  having  no  office  within 
the  United  Kingdom  must  be  in  the  Form  No.  5 
or  No.  6  of  Part  1  of  the  Appendix  to  the  Bales 
of  1883.  A  writ  in  Form  No.  2  issued  against  a 
foreign  company  having  no  offices  in  the  United 
Kingdom  will  be  set  aside.  Sedgwick  v.  Yedr* 
Mining  Co.,  35  W.  R.  780— D. 

Special  Indorsement  —  Delivery.]  —  A  writ 
specially  indorsed  with  a  statement  of  claim 
need  not  have  the  word  "delivered"  nor  the 
date  of  delivery  at  the  end  of  such  statement  of 
claim.  Veale  v.  Automatic  Boiler  Feeder  fl>.. 
18  Q.  B.  D.  631  ;  56  L.  J.,  Q.  B.  807 ;  35  W.  R 
454— D. 

Indorsement  of  Costs.] — It  is  irregular  to 
indorse  a  writ  of  summons  with  an  excessive 
amount  for  costs,  and  such  a  writ  will  be  set 
aside.  Jacob*  v.  Monck,  12  L.  R.,  Ir.  37S^- 
Q.  B.  D. 


b.  Special  Indorsement  undies  Obdhb  EL 

r.  6. 

Aotion  for  Recovery  of  Land— Landlord  and 
Tenant]— In  an  action  for  the  recovery  of  land 


1409 


PRACTICE   AND    PLEADING. 


1410 


by  a  landlord  against  a  tenant,  the  writ  of  sum- 
mon* can  be  specially  indorsed  under  Ord.  III. 
r.  6  (f),  only  when  the  plaintiff  was  party  to 
the  lease  or  agreement  under  which  the  here- 
ditaments have  been  held,  or  when  the  defendant 
has  paid  rent  to  the  plaintiff,  thereby  acknow- 
ledging his  title,  or  when  the  defendant  is  other- 
wise estopped  from  denying  the  plaintiff's  title. 
Casey  v.  Hellyer,  17  Q.  B.  D.  97  ;  55  L.  J.,  Q.  B. 
207 ;  64  L.  T.  103 ;  34  W.  R.  337— C.  A. 

Assignment  of  Debt.] — A  writ  of  summons  was 
indorsed  with  a  claim  for  a  sum  of  money  due 
from  the  defendant  to  the  plaintiff'  under  an 
assignment ;  this  assignment,  the  terms  of  which 
were  set  out,  was  a  request  to  the  defendant  to 
pay  to  the  plaintiff  a  sum  due  from  the  defendant 
to  the  assignor  under  an  I.  0.  U.  of  a  certain 
date,  signed  by  the  defendant.  The  indorse- 
ment did  not  give  any  particulars  of  the  circum- 
stances under  which  the  I.  0.  U.  was  originally 
given : — Held,  that  the  indorsement  was  a  suffi- 
cient special  indorsement  under  Ord.  III.  r.  6. 
Bickers  v.  Speight,  22  Q.  B.  D.  7  ;  58  L.  J.,  Q.  B. 
42 ;  37  W.  R.  139— D. 

Bond — Penalty.]— See  Tuther  v.  Caralampi, 
post,  col.  1422. 

Part  of  Claim  unliquidated.] — A  writ  which 
claims  payment  of  a  sum  which  is  in  dispute, 
besides  payment  of  a  liquidated  demand,  is  not 
specially  indorsed  so  as  to  entitle  the  plaintiff  to 
judgment  under  Ord.  XIV.  for  the  liquidated 
demand.     Clarke  v.  Berger,  36  W.  R.  809— D. 

Defence,  Time  for  Delivery  of.] — The  service 
of  a- writ  specially  indorsed  under  Ord.  III.  r.  6, 
is  delivery  of  a  statement  of  claim  to  the 
defendant  within  the  meaning  of  Ord.  XXI. 
r.  6 ;  so  that  the  defendant  has  ten  days  from 
the  time  limited  for  appearance  within  which  to 
deliver  his  defence.  Anlaby  v.  Prvdorius,  20 
Q.  B.  D.  764  ;  57  L.  J.,  Q.  B.  287  ;  58  L.  T.  671 ; 
36  W.  R.  487— C.  A.    See  further,  post,  col.  1508. 


e.  Skbvicb  of  Writ. 

Time  for  —  Specially  indorsed  Writ] — A 
specially  indorsed  writ  is  not  a  pleading  within 
the  meaning  of  Ord.  LXIV.  r.  11,  and  service 
thereof  may  therefore  be  effected  at  any  hour  of 
the  day.  Murray  v.  Stephenson,  19  Q.  B.  D. 
60;  56  L.  J.,  Q.  B.  647  ;  56  L.  T.  720  ;  36  W.  R. 
666-D. 

Hen-production  of  Original  Writ  on  Demand.] 
—Where  a  person  serving  a  writ  did  not,  though 
requested  so  to  do,  show  the  original  writ  to  the 
defendant,  and  the  plaintiff  signed  judgment 
thereon : — Held,  that  all  the  proceedings  taken 
under  the  writ  should  be  set  aside,  whether  such 
proceedings  were  to  be  considered  as  irregular, 
or  absolutely  void.  Phillipson  v.  Emanuel.  56 
L  T.  868— D. 

Substituted  Service — Domioil  out  of  the  Juris- 
diction.]— Where  effectual  personal  service  can- 
not be  made  upon  a  person  "  domiciled  or  ordi- 
narily resident  in  Ireland  "  owing  to  Ord.  XI. 
i".  1  (e),  the  court  will  not  allow  substituted 
service  to  be  made.  Hillyard  v.  Smyth,  36 
W.  R.  7 — D. 


There  can  be  no  substituted  service  of  a  writ 
in  an  action  where  there  cannot  in  law  be  per- 
sonal service  of  such  writ.  Rule  6  of  Ord. 
LXVII.  is  limited  in  terms  to  cases  where  the 
writ  itself  can  be  served  as  a  matter  of  law,  but 
where  it  cannot,  from  circumstances,  be  promptly 
served  personally  in  matter  of  fact.  Field  v. 
Bennett,  56  L.  J.,  Q.  B.  89— D. 

Substituted  Service  within,  of  Writ  issued  for 
Service  out  of  Jurisdiction.] — Where  a  writ  has 
been  issued  for  service  out  of  the  jurisdiction, 
and  the  defendant  is  abroad,  a  judge,  if  the 
attendant  circumstances  warrant  substitution, 
may  properly  order  a  copy  of  such  writ  to  be 
served  within  the  jurisdiction,  although  it  is 
not  in  the  form  used  for  service  within  the  juris- 
diction. Ford  v.  Shephard,  63  L.  T.  564 ;  84 
W.  R.  63— D. 

On  Company  out  of  the  Jurisdiction  — 
"  Officer  "— "  Clerk."]— The  defendant  company 
having  head  offices  in  Paris,  Bordeaux,  and 
Marseilles,  had  agents  and  correspondents, 
among  other  places,  in  London.  Service  of  a 
writ  of  summons  on  an  agent  in  London  was 
set  aside  on  the  ground  that  it  was  not  service 
on  the  "  head  officer,  clerk,  treasurer,  or  secretary 
of  such  corporation,"  within  Ord.  IX.  r.  8. 
Nutter  v.  Messageries  Maritime*  de  France,  54 
L.  J.,  Q.  B.  627— D. 

Branch  Works  within.] — A  company  had 

their  registered  office  in  Scotland,  but  carried  on 
branch  works  in  England.  The  writ  in  the 
action  had  been  served  on  the  manager  of  the 
branch  works,  and  a  copy  had  also  been  sent  by 
post  to  the  registered  office : — Held,  that  the 
service  was  bad  and  must  be  set  aside.  Wood  v. 
Anderston  Foundry  Company,  36  W.  R.  918 — 
Stirling,  J. 

Director  within  Jurisdiction  Temporarily.] 

— A  writ  in  form  1,  Appendix  A,  part  1  to  the 
Rules  of  1883,  with  the  exception  that  no 
address  was  inserted  as  that  of  the  defendants, 
was  issued  against  a  foreign  company  having  no 
place  of  business  in  this  country,  and  was  served 
at  Dover  on  one  of  the  managing  directors  of  the 
company,  who  was  temporarily  there  on  business 
connected  with  the  company : — Held,  that  the 
writ  must  be  set  aside.  The  W.  A.  Scholten,  13 
P.  D.  8 ;  57  L.  J.,  P.  4 ;  58  L.  T.  91 ;  36  W.  R. 
559  ;  6  Asp.  M.  C.  244— Butt,  J. 

Place  of  Business  of  Firm— Agent] — 

Defendants  were  a  Scotch  firm,  having  an  agent 
within  the  jurisdiction,  whose  authority  did  not 
extend  to  taking  orders ;  the  name  of  the  firm 
was  affixed  to  the  agent's  offices:— Held,  that 
the  offices  of  the  agent  were  not  a  place  of  busi- 
ness of  the  firm  for  the  purpose  of  serving  the 
writ.  Baillie  v.  Goodwin,  33  Ch.  D.  604  ;  55  L. 
J.,  Ch.  849  ;  55  L.  T.  56  ;  34  W.  R.  787— North, 
J. 

—  London  Agency.] — In  an  action  against 
a  foreign  bank,  service  of  the  writ  of  summons 
on  the  head  manager  of  the  London  "  Agency  " 
of  the  bank — the  agency  being  ostensibly  and 
in  fact  a  bank  with  the  usual  offices,  manager, 
and  staff  of  clerks  : — Held,  to  be  good  service  on 
the  defendants.  Lhonsuw  v.  Hong  Kong  and 
Shanghai  Banking  Corporation,  33  Ch.  D.  446  ; 

Z  Z 


1411 


PRACTICE    AND   PLEADING. 


1412 


56  L.  J.f  Ch.  768  ;  54  L.  T.  868 ;  34  W.  R.  763— 
V.-C.  B. 

Waiver  of  Objection  to  Service.] — An  appli- 
cation made  by  the  defendants  for  security  for 
costs  constitutes  a  waiver  of  any  objection  as  to 
service.    Jo. 

On  Member  of  Foreign  Partnership.] — See 
Polletefen  v.  Sibson,  ante,  col.  1330. 

Service  on  Wrong  Person — Amendment  or  Dis- 
charge.]—Where  a  writ  has  been  served  on  a 
wrong  person,  and  service  is  possible  on  the  right 
person,  leave  will  not  be  given  under  Ord.  LXX. 
r.  1,  to  amend  the  irregularity,  but  the  faulty 
service  will  be  discharged  with  costs  upon  the 
application  of  the  person  intended  to  be  served. 
Jvelson  v.  Pastorino,  49  L.  T.  564 — Pearson,  J. 

Defendant  Resident  out  of  Jurisdiction — 
Leave  to  Issue  Writ  for  Substituted  Service.] — 
A  writ  which  is  intended  to  be  served  by  sub- 
stituted service  on  a  person  residing  within  the 
jurisdiction  may  be  issued  without  leave  of  the 
court,  though  the  defendant  be  resident  out  of 
the  jurisdiction.  Lewis  v.  Herbert,  16  L.  R.,  Ir. 
340— C.  A. 


d.  Other  Points. 

Amending  after  Judgment] — See  Keith  v. 
Butcher,  ante,  coL  1407. 

Re-servioe  after  Amendment.]— A  writ  of  sum- 
mons amended  under  an  order  of  court  made  in 
presence  of  both  parties,  the  order  being  silent 
as  to  service,  must  be  re-served  on  defendant, 
and  a  judgment  marked  without  such  re-service, 
and  without  any  previous  intimation  to  defen- 
dant of  plaintiff's  intention  to  amend,  or  to 
abstain  from  amending,  under  the  order,  was  set 
aside.  Bryant  v.  Hughes,  14  L.  R.,  Ir.  62 — Ex. 
D. 

Waiver  of  Defect  in.]  —  See  Mulckem  v. 
Doercks,  post,  col.  1419. 


e.  SEBVICB  OUT  OF  THE  JURISDICTION, 
i.  Practice  as  to. 

Discretion  —  Evidence  as  to  Merits.]  —  The 

court  will  exercise  discretion  in  allowing  or  dis- 
allowing service  out  of  the  jurisdiction,  and  in 
so  doing  will  consider  evidence  as  to  the  merits. 
SocUU  QMrale  de  Paris  v.  Dreyfus,  29  Ch.  D. 
239  ;  54  L.  J.,  Ch.  893  ;  53  L.  T.  463 ;  33  W.  R. 
823— Pearson,  J.  Reversed  on  the  facts,  see 
next  case. 

On  an  application  for  leave  to  serve  a  writ  out 
of  the  jurisdiction  it  is  not  sufficient  that  the 
form  cf  the  action  and  the  nature  of  the  relief 
sought  bring  the  case  within  Ord.  XI.  The 
plaintiff  must  show  to  the  satisfaction  of  the 
court  that  he  has  a  probable  cause  of  action ; 
and  the  court  in  exercising  its  discretion  will 
consider  the  facts  of  the  case  appearing  on  the 
affidavits,  so  far  as  may  be  necessary  for  that 
purpose.  Society  Oenirale  de  Paris  v.  Dreyfus. 
37  Ch.  D.  215  ;  57  L.  J.,  Ch.  276 ;  68  L.  T.  573  ; 
36  W.  R.  609— C.  A. 

A  sum  of  money  was  paid  into  court  in  an 


action  in  this  country  in  which  D.  was  the 
plaintiff.  D.  was  resident  in  France.  This 
fund  was  the  subject  of  litigation  between  D. 
and  the  present  plaintiffs  in  France,  and  judg- 
ment was  given  in  the  French  courts  that  D. 
was  entitled  to  the  control  of  the  fund  in  court 
subject  to  the  liability  to  account  to  the  plain- 
tiffs. The  plaintiffs  brought  an  action  in  this 
country  asking  for  an  injunction  to  restrain  D. 
from  receiving  or  dealing  with  the  fond  in 
court,  and  applied  for  leave  to  Berve  the  writ  on 
D.  in  France :— Held,  that  the  French  court 
having  decided  that  D.  was  entitled  to  the 
control  of  the  fund,  leave  to  serve  the  writ 
ought  not  to  be  given.    lb. 

Application  for  Leave— Affidavit  in  ftanpert- 
Uberrima  Fides.]— Where  an  ex  parte  appli- 
cation is  made  to  the  court,  the  person  making 
it  must  observe  uberrima  fides ;  otherwise  he  is 
liable  to  have  the  order  discharged  at  the  instance 
of  the  person  against  whom  it  has  been  obtained. 
Where  an  ex  parte  order  had  been  made,  under 
r.  4  of  Ord.  XI.,  for  service  of  the  writ  of  sum- 
mons in  an  action  upon  the  defendants,  who 
were  resident  out  of  the  jurisdiction,  but  the 
affidavit  upon  which  the  order  was  obtained 
contained  misstatements  of  fact,  which  had  the 
effect  of  showing  that  the  plaintiffs  had  primi 
facie  an  overwhelmingly  good  cause  of  action, 
the  court  held  that  r.  4  of  Ord.  XI.  must  be 
strictly  enforced,  and  that  therefore  the  order 
for  service  out  of  the  jurisdiction  must  be  dis- 
charged. Republic  of  Peru  v.  Dreyfus,  56  L.  T. 
802— Kay,  J. 

Hot  necessary  when  Substituted  Service 

intended.] — See  Lewis  v.  Herbert,  supra.    • 

Defendant  not  a  British  8ubject.]— The  court 
has  jurisdiction  to  order  the  service  of  a  writ  of 
summons,  or  of  a  notice  in  Hen  of  a  writ  of  ram- 
mons,  on  a  defendant  resident  out  of  the  jun> 
diction,  who  is  not  a  British  subject.  Jmmss  t. 
Despott,  14  L.  R.,  Ir.  71— Q.  B.  D. 

Concurrent  Writ  for  Serviee  out  of  the  Jnrii- 
diction— Original  Writ  renewed— Enlargement 
of  Time.]— Under  the  Rules  of  Court,  1883,  Ord. 
VI.  it.  1,  2,  the  court  has  power  to  give  leave  for 
the  issue  of  a  concurrent  writ  for  service  out  of 
the  jurisdiction,  although  the  original  writ  wai 
issued  for  service  within  the  jurisdiction  and  has 
been  renewed,  and  although  there  is  only  one 
defendant  to  the  action.  And  where  the  writ 
has  been  renewed  such  leave  may  be  given,  not- 
withstanding that  the  enlargement  of  time  for 
issuing  a  concurrent  writ  may  affect  the  opera- 
tion of  the  Statute  of  Limitations.  Smeipf 
v.  Tonge,  17  Q.  B.  D.  644  ;  65  L.  J.,  Q.  B.  518 ; 
65  L.  T.  44  ;  34  W.  R.  768— C.  A. 

Foreigner  bringing  Action  here.] — Sembk, 
that  where  a  person  resident  out  of  the  jurisdic- 
tion has  brought  an  action  in  this  country,  he 
has  made  himself  amenable  to  the  jurisdiction 
with  respect  to  matters  connected  with  his  ac- 
tion. Yorkshire  Tannery  v.  Eglinftm  Chemietl 
Company,  54  L.  J.,  Ch,  81  ;  83  W.  R.  ltt- 
Pearson,  J. 

Serviee  of  Writ  instead  of  Woftiee  on 
Foreigner    residing  Abroad  —  Hulliry.]  —  By 

Order  XI.  r.  6,  "  when  the  defendant  is  neither 


1418 


PRACTICE    AND    PLEADING. 


1414 


a  British  subject  nor  in  British  dominions,  notice 
of  the  writ  and  not  the  writ  itself  is  to  be  served 
upon  him."  The  plaintiffs  Bued  the  defendant, 
who  was  a  foreigner  residing  in  France,  for 
goods  sold  and  delivered  to  him  in  England,  and 
obtained  a  judge's  order  for  the  service  upon  him 
of  the  writ  out  of  the  jurisdiction,  the  order 
being  obtained  upon  an  affidavit  which  stated 
erroneously  that  the  defendant  was  a  British 
subject.  The  writ  was  served  upon  the  defen- 
dant in  France,  and  judgment  signed  against 
him  in  default  of  appearance: — Held,  that  the 
service  of  the  writ  instead  of  a  notice  was  a 
nullity,  and  not  a  mere  irregularity,  and  that 
the  order  for  service  of  the  writ  and  all  subse- 
quent proceedings  must  be  set  aside,  Hewitson 
r.Mre,  21  Q.  B.  D.  6  ;  57  L.  J.,  Q.  B.  449  ;  58 
L.T.856;  36  W.  R.  717— D. 

Order  limiting  Plaintiff's  Bight  to  Eeeovor 
at  Trial] — An  order  having  been  obtained  under 
Old.  XI.  r.  1  (*•),  for  service  of  notice  of  a 
writ  out  of  the  jurisdiction  in  an  action  for  the 
price  of  goods  supplied,  and  service  having  been 
effected  accordingly,  the  defendant  applied  to  a 
judge  at  chambers  to  rescind  the  order  and  to 
set  aside  the  subsequent  proceedings  under  it. 
The  Jadge,  being  doubtful  on  the  affidavits  used 
whether  there  had  been  any  breach  of  the  con- 
tract within  the  jurisdiction,  refused  the  appli- 
cation, but  ordered  that  the  plaintiffs  claim 
should  be  limited  to  the  recovery  of  the  price  of 
goods  in  respect  of  which  it  might  appear  at  the 
trial  that  the  writ  could  have  been  properly 
served  out  of  the  jurisdiction  : — Held,  that  the 
order  of  the  judge  at  chambers  was  rightly  made. 
Thomas  v.  Hamilton  {Duchess  Dowager).  17  Q. 
B.  D.  592  ;  55  L.  J.,  Q.  B.  555  ;  55  L.  T.  386  ;  35 
W.  B.  22— C.  A. 

Cfrtiilcate  in  lien  of  Affidavit  of  Service.]— 
Under  Ord.  XI I L  r.  2 — which  requires  that  be- 
fore taking  proceedings  upon  default  of  appear- 
ance to  a  writ  of  summons,  the  plaintiff  shall  file 
an  affidavit  of  service  or  of  notice  in  lieu  of  ser- 
vice, as  the  case  may  be — the  court,  where  notice 
of  a  writ  is  served  out  of  the  jurisdiction,  has  no 
power  to  allow  a  certificate  of  service  to  be  filed 
in  lieu  of  an  affidavit,  even  where  it  appears  that 
by  the  foreign  law  the  process-server  cannot 
make  an  affidavit  as  prescribed  by  r.  2.  Ford  v. 
Mtescke,  16  Q.  B.  D.  57  ;  55  L.  J.,  Q.  B.  79 ;  53 
L  T.  535  ;  34  W.  R.  74— D. 

Yotiee — Omission  in.] — The  omission  to  copy 
in  the  notice  the  order  giving  leave  to  issue  the 
writ  and  serve  notice  of  it,  is  not  such  an  in- 
formality as  to  make  the  service  invalid.  Rey- 
**lds  v.  Coleman,  post,  col.  1416. 

Objection  to  Contents  of  Affidavit,]— After 
the  lapse  of  a  year  the  defendant  is  too  late  to 
nise  any  objection  to  the  order  on  the  ground 
that  the  affidavit  on  which  it  was  obtained  did 
not  fairly  state  the  facts.  lb.  Bee  also  Republic 
if  Peru  v.  Dreyfus,  ante,  col.  1412. 

Afpiieation  to  Discharge—Time  for.]— Where 
a  defendant  who  had  been  served  out  of  the 
jarisdiction  with  a  writ  appeared  and  objected 
to  the  power  of  the  court  to  issue  it  under  the 
circumstances : — Held,  that  the  application  was 
too  late  under  Ord.  LXX.  r.  2.    Tozier  v.  Haw- 


kins, 15  Q.  B.  D.  650— D.    See  &  C.  in  C.  A., 
infra. 

An  order  was  made  by  the  vacation  judge,  on 
the  ex  parte  application  of  the  plaintiffs,  for 
service  of  the  writ  and  notice  of  motion  on  the 
solicitors  and  at  the  place  of  business  in  Eng- 
land of  a  foreigner  residing  out  of  the  jurisdic- 
tion. Without  formally  entering  an  appearance 
the  defendant  filed  affidavits  in  opposition  to 
the  motion,  and  instructed  counsel,  who  opposed 
the  motion  on  the  merits : — Held,  that  the  de- 
fendant had  thereby  waived  the  right  to  raise 
any  objection  as  to  the  irregularity  of  the  order, 
and  must  be  treated  as  if  he  had  been  properly 
served  and  had  formally  appeared ;  that  the 
fact  that  the  ex  parte  order  had  been  passed  and 
entered  did  not  prevent  the  right  of  the  de- 
fendant to  move  to  discharge  it ;  but  that  r.  12 
of  Ord.  LXIII.  did  not  apply  to  such  a  case,  and 
that  the  proper  mode  of  proceeding  (if  there 
had  been  no  such  order  as  aforesaid)  would 
have  been  to  apply,  not  to  the  Court  of  Appeal 
or  the  vacation  judge,  but  to  the  judge  to  whose 
court  the  action  was  assigned,  to  discharge  the 
order  of  the  vacation  judge.  Boyle  v.  Backer, 
39  Ch.  D.  249  ;  58  L.  J.,  Ch.  141  ;  58  L.  T.  822  ; 
37  W.  R.  68— C.  A. 


11.  In  what  Gases  allowed. 

Injunction — Breach   within   Jurisdiction    of 
Contract  made  outside.] — The  defendant,  who 
was  resident  in  Scotland,  entered  into  a  contract 
with  an  English  mining  company,  whereby  he 
was  to  perform  certain  services  for  them  in  the 
Transvaal  at  a  salary.    The  contract  was  exe- 
cuted by  the  defendant  in  Scotland,  but  was  in 
English  form.    The  defendant  proceeded  to  the 
Transvaal,  but  returned  therefrom  before  he  had 
fully  performed  the  services.     He  claimed  a 
half-year's  salary,  which  he  alleged  was  due  to 
him.    This  the  company  declined  to  pay  on  the 
ground  that  the  defendant  had  broken  his  con- 
tract with  them,  and  he  thereupon  threatened  to 
present  a  petition  for  the  winding  up  of  the 
company.     The  company  brought  this  action 
claiming  (1)  rescission  of  the  contract ;  (2)  re- 
turn of  certain  Bums  paid  by  them  in  pursuance 
of  it,  after  setting  off  such  salary,  ii  any,  as 
might  be  due  to  the  defendant ;  and  (3)  an  in- 
junction to  restrain  the  defendant  from  present- 
ing or  advertising  any  petition  for  the  winding- 
up  of   the  company.      An  order  having  been 
made  for  service  of  the  writ  on  the  defendant  in 
Scotland,  he  moved  to  discharge  such  order. 
He  contended  that  the  case  was  not  within 
Ord.  XI.  r.  1,  of  the  Rules  of  Court,  1883  ;  that 
the  action  was  not  for  a  breach  "within  the 
jurisdiction"  of  a  contract  made  without  the 
jurisdiction ;  and  that  the  company  could  not, 
merely  by  inserting  in  their  writ  a  claim  for  an 
injunction,  bring  the  case  within  the  rule : — 
Held,  that  r.  1  of  Ord.  XI.  applied  to  the  case ; 
that  it  was  not  necessary  that  an  injunction 
should  be  the  only  relief  sought  in  order  to  bring 
the  case  within  the  rule  ;  and  that  the  motion 
must  therefore  be  refused.    IAsbon-Berlyn  Gold 
Fields  v.  Heddle,  52  L.  T.  796— Kay,  J. 


Infringement    of    Trade    Mark  —  De- 


fendant's Agents  only  within  Jurisdiction.  ]— 
A  summons  by  T.  A.  M.,  a  manufacturer,  resident 

Z  Z  2 


1415 


PRACTICE    AND    PLEADING. 


1416 


in  Scotland,  for  leave  to  register  a  trade-mark, 
was  pending  before  the  High  Court,  and  was 
opposed  by  J.  M.,  also  resident  and  carrying  on 
a  similar  manufacture  in  Scotland,  on  the 
ground  that  the  mark  was  similar  to  one 
belonging  to  J.  M.  J.  M.  applied  for  leave  to 
issue  a  writ  against  T.  A.  M.  for  an  injunction 
and  damages,  on  the  ground  that  T.  A.  M.  was 
selling  his  goods  in  England  in  such  a  way  as  to 
lead  the  public  to  believe  that  they  were  J.  M.'s 
goods.  J.  M.  deposed  that  the  same  witnesses 
would  be  required  on  the  summonses  and  in  the 
action,  and  that  it  would  be  most  convenient 
and  would  save  great  expense  if  the  action  was 
brought  in  England,  or  that  the  summons  and 
action  could  be  tried  together : — Held,  that  as 
an  injunction  in  England  could  only  be  enforced 
against  agents  of  T.  A.  M.,  and  not  against  him- 
self, leave  ought  not  to  be  given  to  issue  the 
writ,  the  matter  being  one  which  was  better  left 
to  the  courts  of  Scotland.  Marshall  v.  Marshall, 
38  Ch.  D.  330  ;  59  L.  T.  484— C.  A. 


Restraining  Defamatory  Post-cards.] — A 


writ  of  summons  claiming  an  injunction  to 
restrain  the  defendant  (resident  in  Dublin)  from 
sending  to  the  plaintiffs,  or  either  of  them,  in 
London,  through  the  post-office  or  otherwise, 
libellous,  defamatory,  or  obscene  post-cards,  &c, 
and  also  claiming  damages,  may  by  leave  of  the 
court  be  issued  and  served  upon  a  defendant 
residing  in  Dublin,  under  Ord.  XI.  r.  1  (f),  not- 
withstanding the  obstacles  to  making  the  injunc- 
tion available.  Tozier  v.  Hawkins,  15  Q.  B.  D. 
680  ;  55  L.  J.,  Q.  B.  152 ;  34  W.  R.  223— C.  A. 

Contract — Commission  Agent— Wrongful  Dis- 
missal.]— A.  verbally  agreed  in  Glasgow  with  B., 
a  .Scotch  coal  merchant,  to  act  for  B.  as  com- 
mission agent  in  Ireland.  After  A.'s  return  to 
Dablin  some  correspondence  passed  between  the 
parties  as  to  terms,  but  which,  in  the  opinion  of 
the  court,  was  merely  referential  to  the  antecedent 
complete  verbal  contract.  B.  being  dissatisfied 
with  A.,  wrote  and  posted  in  Scotland  a  letter 
addressed  to  A.  in  Ireland,  terminating  the  em- 
ployment : — Held,  that  A.  was  not  entitled  to 
an  order  for  liberty  to  serve  B.  out  of  the  juris- 
diction with  a  writ  of  summons,  claiming  com- 
mission and  damages  for  wrongful  dismissal. 
Hamilton  v.  Barr,  18  L.  R.,  Ir.  297— O.  A. 


To  be  performed  within  the  Jurisdic- 


tion— Transfer  of  Shares.] — K.,  an  American, 
residing  in  England  for  the  purposes  of  his 
business,  brought  an  action  against  C,  an 
American  resident  in  America,  to  enforce  a  con- 
tract by  C,  made  in  England,  to  transfer  to  R. 
shares  in  an  English  company.  Leave  was 
given  to  issue  the  writ,  and  serve  notice  of  it  in 
America.  More  than  a  year  afterwards  the  de- 
fendant applied  to  discharge  the  order  for  service 
on  the  ground  that  there  was  no  jurisdiction 
to  order  service  abroad,  as  the  contract  was  not 
one  which,  according  to  its  terms,  ought  to  be 
performed  within  the  jurisdiction : — Held,  that 
Ord.  XI.  r.  1,  sub-s.  (e),  does  not  require  that 
a  contract  should  state  in  terms  that  it  is  to 
be  performed  within  the  jurisdiction,  but  that  it 
is  enough  if  it  appears,  from  a  consideration  of 
the  terms  of  the  contract  and  the  facts  existing 
when  the  contract  was  made,  that  it  was  intended 
to  be  performed  within  the  jurisdiction;  that 
a  contract  made  in  England  to  transfer  shares 


in  an  English  Company  to  a  person  resident  in 
England  was  a  contract  which,  according  to  its 
terms,  ought  to  be  performed  within  the  juris- 
diction. Reynolds  v.  Coleman,  36  Ch.  D.  463 ; 
56  L.  J.,  Ch.  903  ;  57  L.  T.  588 ;  35  W.  R.  813— 
C.A. 


Work   done  in    Isle   of  Kan  —  Place 

of  Payment.] — In  an  application  for  service  oat 
of  the  jurisdiction  it  appeared  that  the  action 
was  brought  by  the  plaintiffs,  engine-makers  in 
England,  for  the  price  of  machinery  erected  by 
them  in  the  Isle  of  Man  for  the  defendants,  a 
company  carrying  on  business  in  the  island. 
There  was  no  agreement  as  to  the  place  of 
payment : — Held,  that  it  must  be  taken  to  be 
part  of  the  contract  that  the  plaintiffs  should 
receive  payment  in  England,  that  the  action 
was  therefore  founded  on  a  breach  within  the 
jurisdiction,  according  to  Ord.  XL  r.  1  (e),  and 
that  service  out  of  the  jurisdiction  might  be 
allowed.  Robey  v.  Snafcll  Mining  Company  * 
20  Q.  B.  D.  152 ;  57  L.  J„  Q.  B.  134  ;  36  W.  K. 
224— D. 


Delivery  of  Goods  in  London.] — M.,  a 


merchant  at  New  York,  contracted  to  supply 
certain  goods  to  B.,  a  merchant  in  London,  on 
certain  terms.  On  arrival  of  the  goods  in  London 
they  were  found  to  be  defective  and  not  accord- 
ing to  contract,  and  the  defects  in  them  were 
not  due  to  the  sea  voyage  : — Held,  that  inasmuch 
as  the  breach  was  continuing,  the  English  courts 
had  jurisdiction,  and  therefore  that  the  de- 
fendant might  be  served  with  notice  of  a  writ  of 
summons  under  Ord.  XI.  r.  1,  sub-r.  (e).  Bar- 
row v.  Myers,  52  J.  P.  345— D. 


Charging  Order.] — This  was  a  motion  fur 


leave  to  issue  for  service  out  of  the  jurisdiction 
a  writ  in  an  action  seeking  to  enforce  a  charging 
order  obtained  by  the  plaintiff,  a  judgment 
creditor,  upon  certain  shares  belonging  to  the 
defendant,  the  judgment  debtor.  The  Judgment 
Act  (1  &  2  Vict.  c.  110),  s.  14,  which,  by  virtue 
of  Ord.  XLVI.  r.  1,  regulates  the  effect  of  a 
charging  order,  provides  that  "  such  order  shall 
entitle  the  judgment  creditor  to  all  such  reme- 
dies as  he  would  have  been  entitled  to  if  such 
charge  had  been  made  in  his  favour  by  the 
judgment  debtor."  Ord.  XI.  r.  1,  provides  that 
service  out  of  the  jurisdiction  of  a  writ  of 
summons,  or  notice  of  a  writ  of  summons,  may 
be  allowed  by  the  court  or  a  judge  whenever  (e) 
"  the  action  is  founded  on  any  breach,  or  alleged 
breach,  within  the  jurisdiction,  of  any  contract 
wherever  made,  which,  according  to  the  terms 
thereof,  onght  to  be  performed  within  the  juris- 
diction "  : — Held,  that,  assuming  that  the  case 
could  be  treated  as  one  of  contract  at  all,  it 
would  only  be  a  contract  that  the  shares  should 
be  charged,  and  of  such  a  contract  there  had 
not  been  any  breach  within  the  jurisdiction. 
Moritz  v.  Stephan,  58  L.  T.  850  ;  36  W.  R.  779— 
North,  J. 


To  Supply  News— Transmission  through 


Postal  Telegraph  Office— Balance  of  Convem- 

enoe.] — A  company,  whose  office  was  in  London, 
contracted  with  G.,  the  proprietor  of  a  Dublin 
newspaper,  for  the  transmission  to  him  of  news. 
The  contract  contained  a  condition  that  the 
company  was  not  to  be  responsible  for  non- 
delivery or  for  delay  or  errors  which  might 


1417 


PRACTICE    AND    PLEADING. 


1418 


occur  in  the  collection  or  transmission  of  its 
news  supplies : — Held,  that  the  contract  was  not 
fulfilled  by  the  delivery  of  the  news  at  the  postal 
telegraph  office  in  London  for  transmission  to 
Dublin,  and  that,  in  an  action  by  G.  for  breach 
of  the  contract  in  negligently  and  carelessly 
supplying  him  with  false  news,  he  was  entitled 
to  an  order  for  leave  to  serve  the  writ  of  sum- 
mons oat  of  the  jurisdiction,  on  the  grounds  that 
the  breach  of  the  contract  occurred  in  Dublin, 
and  that,  having  regard  to  the  necessary  wit- 
nesses, as  disclosed  by  the  affidavits  on  both 
sides,  the  preponderance  of  convenience  was  not 
against  a  trial  in  Ireland.  Gray  v.  Press  Asso- 
ciation, 22  L.  R„  Ir.  1— C.  A. 

Defendant  ordinarily  Eesident  in  Soot- 
land  or  Ireland.] — There  is  no  power  to  allow 
service  of  a  writ  out  of  the  jurisdiction  in  actions 
for  breach  of  contract  under  Ord.  XI.,  r.  1  (e), 
where  the  defendant  is  domiciled  or  ordinarily 
resident  in  Scotland  or  Ireland.  Lenders  or 
Sawders  v.  Anderson,  12  Q.  B.  D.  50  ;  53  L.  J., 
Q.  B.  104  ;  49  L.  T.  587  ;  32  W.  B.  230 ;  48  J.  P. 
136-D. 

An  insurance  company,  whose  registered  office 
was  in  Scotland,  and  whose  secretary  resided 
there,  but  which  also  had  agencies  and  a  chief 
office  within  the  jurisdiction  of  the  High  Court, 
issued  a  policy  through  an  agent  within  the 
jurisdiction,  to  whom  the  premiums  were  paid. 
The  company  having  refused  to  pay  a  claim  on 
the  policy : — Held,  that  it  was  not  domiciled  or 
ordinarily  resident  within  the  jurisdiction,  and 
that  leave  to  issue  a  writ  for  service  out  of  the 
jurisdiction  could  not  be  granted.  Jones  v.  Scot' 
tisk  Accident  Insurance  Company,  17  Q.  B.  D. 
421 ;  55  L.  J.,  Q.  B.  415  ;  55  L.  T.  218— D. 

Action  for  Sent  of  Land  in  England. J — Ord. 
XI.,  r.  1,  does  not  enable  the  court  or  a  judge  to 
allow  service  out  of  the  jurisdiction  of  a  writ  in 
an  action  for  non-payment  of  rent  due  under 
a  lease  of  land  in  England  against  defendants 
who  are  domiciled  or  ordinarily  resident  in  Scot- 
land, Agnew  v.  Usher,  14  Q.  B.  D.  78 ;  54  L.  J., 
Q.B.371;  51L.T.576— D. 

On  appeal,  the  court  held  that  the  plaintiffs, 
having  failed  to  show  that  the  defendants  were 
assignees  of  the  lease,  had  not  shown  reason  for 
the  leave  to  be  granted.  Agnew  v.  Usher,  51 
L.  T.  576  ;  33  W.  R.  126— C.  A. 

Contract  affecting  Land — Compensation  for 
Tenant-right — Custom.] — In  an  action  by  the 
outgoing  tenant  of  a  farm  in  Yorkshire  to  re- 
cover from  his  landlord,  who  was  ordinarily  resi- 
dent in  Scotland,  compensation  for  tenant-right 
according  to  the  custom  of  the  country  : — Held, 
that  a  "  contract,  obligation,  or  liability  affect- 
ing land"  was  sought  to  be  enforced  in  the 
action,  and  therefore  that  the  court  had  power, 
under  Ord.  XI.,  r.  1  (b),  to  allow  service  of  the 
writ  of  summons  out  of  the  jurisdiction.  Agnew 
v.  Usher  (14  Q.  B.  D.  78)  distinguished.  Kaye 
v.  Sutherland,  20  Q.  B.  D.  147  ;  57  L.  J.,  Q.  B. 
68;  58  L.  T.  66  ;  36  W.  R.  508— D. 

Co-defendants  served  within  the  Jurisdiction.] 
—In  an  action  to  enforce  against  real  estate  in 
Trinidad  the  trusts  of  a  creditor's  deed  (which 
had  been  established  by  a  former  suit  in  the 
Court  of  Chancery),  the  defendants  were  persons 
in  whom  the  legal  estate  was  outstanding,  one 


of  them  being  a  British  subject  resident  in 
Trinidad.  The  other  defendants  resided  in  Eng- 
land. An  opinion  was  given  by  a  barrister  prac- 
tising in  Trinidad  that  the  beneficial  interest  in 
the  real  estate  there  was  bound  by  the  deed. 
The  writ  had  been  served  on  those  defendants 
who  were  in  England  : — Held,  that  leave  could 
be  given  to  serve  the  writ  on  the  defendant  who 
was  in  Trinidad.  Jenney  v.  Mackintosh,  33 
Ch.  D.  595  ;  55  L.  T.  733  ;  35  W.  R.  181  — 
North,  J. 


Discretion.] — Where  a  testatrix  resided 


and  was  domiciled  in  Ireland,  and  died  in 
Ireland,  and  ber  will  was  made  and  proved  in 
Ireland,  and  she  appointed  three  executors,  two 
residing  in  Ireland  and  one  residing  and  domi- 
ciled in  England,  and  the  executors  sold  some 
consols  and  invested  the  proceeds  in  the  purchase 
of  some  Irish  land,  a  beneficiary  brought  an 
action  against  the  English  executor  in  England, 
claiming  that  the  investment  was  improper,  and 
the  executors  wore  liable  to  replace  the  money. 
Leave  having  been  given  to  serve  the  writ  on 
the  two  executors  in  Ireland  ;  on. motion  to  dis- 
charge the  order  giving  such  leave : — Held,  that 
it  was  a  matter  of  discretion  for  the  judge,  and 
the  action  having  been  properly  brought  against 
a  man  within  the  jurisdiction,  the  case  fell 
within  Ord.  XI.  r.  1  (c),  and  the  motion  must 
be  refused.  Harvey  v.  Dougherty,  56  L.  T.  822 
— Kay,  J. 

"Proper"  Parties.]— By  Ord.  XI.  r.  1, 


service  out  of  the  jurisdiction  of  a  writ  of  sum- 
mons or  notice  of  a  writ  of  summons  may  be 
allowed  by  the  court  or  a  judge  whenever 
(g)  "  Any  person  out  of  the  jurisdiction  is  a 
necessary  or  proper  party  to  an  action  pro- 
perly brought  against  some  other  person  duly 
served  within  the  jurisdiction."  In  an  action 
against  defendants  in  London  for  breach  of  war- 
ranty of  authority  it  appeared  that  they  had 
assumed  as  agents  for  foreign  principals  to  enter 
into  a  contract  to  be  performed  out  of  the  juris- 
diction, and  that  there  had  been  a  breach  out  of 
the  jurisdiction,  the  supposed  principals  having 
repudiated  the  contract  as  being  made  without 
their  authority  : — Held,  that  the  foreign  princi- 
pals were  "  proper  "  parties  to  the  action  within 
Ord.  XI.  r.  1  (g),  and  that  service  on  them  out 
of  the  jurisdiction  of  notice  of  the  writ  might 
be  allowed.  Maury  v.  Heynes,  21  Q.  B.  D. 
330  ;  57  L.  J.,  Q.  B.  521  ;  36  W.  R.  834— C.  A. 
Affirming  59  L.  T.  470— D. 

The  plaintiff  brought  his  action  in  England 
on  a  policy  of  marine  insurance  against  several 
underwriters.  He  served  his  writ  of  summons 
on  two  of  the  underwriters  who  were  within  the 
jurisdiction,  and  applied  for  leave  under  Ord.  XI. 
T'  I  (g)»  *°  8erve  his  writ  on  the  other  defen- 
dants, who  were  residing  out  of  the  jurisdiction 
in  Scotland,  as  being  necessary  parties  to  the 
action  : — Held,  that  the  plaintiff  ought  to  be 
allowed  to  serve  his  writ  out  of  the  jurisdiction ; 
and  that  Ord.  XL  r.  1  (g)  was  framed  to  meet 
such  a  case.  Thanemore  Steamship  v.  Thompson, 
52  L.  T.  552  ;  5  Asp.  M.  C.  398— D. 


Substantial  Defendant.] — On  an  applica- 


tion to  serve  a  person  out  of  the  jurisdiction 
under  Ord.  XI.  r.  1  (g),  it  must  be  shown  that 
there  is  within  the  jurisdiction  a  defendant 
against  whom  substantial  relief  is  claimed,  and 


1419 


PRACTICE    AND    PLEADING. 


1420 


it  must  also  be  shown  that  the  defendant 
within  the  jurisdiction  has  been  previously 
duly  served.  Yorkshire  Tannery  v.  Eglinton 
Chemical  Company,  54  L.  J.,  Ch.  81 ;  33  W.  R. 
162— Pearson,  J. 


5.  APPEARANCE  AND  PROCEEDINGS  IN 

DEFAULT  OF. 

At  Trial.]— See  post,  col.  1472. 

Setting  aside— Illusory  Address  for  Service.] 

— A  defendant  appeared  in  person  to  a  writ, 
and  gave  an  address  for  service  in  the  memo- 
randum of  appearance.  On  inquiry,  it  was 
found  that  though  the  defendant  had  once 
carried  on  business  at  the  address  given,  he  had 
ceased  to  do  so,  and  had  left  no  instructions  as 
to  the  forwarding  to  him  of  letters  or  docu- 
ments. A  letter  forwarded  by  the  plaintiff  to 
his  private  address  was  returned  through  the 
Dead  Letter  Office.  The  plaintiff  subsequently 
received  a  letter  from  the  defendant  from 
abroad.  On  an  ex  parte  application  the  court 
made  an  order  declaring  the  address  for  service 
illusory  or  fictitious  under  Ord.  XII.  r.  12. 
E.  v.  C.  or  E&ell  v.  Cave,  64  L.  J.,  Ch.  308 ; 
51  L.  T.  621 ;  33  W.  R.  208— V.-C.  B. 

By  Partner.] — See  Adam  v.  Townend,  ante, 
col.  1330. 

Amending  Defect  in.l — A  writ  having 

been  issued  against  a  firm  ana  others,  was  served 
on  one  defendant,  F.,  in  his  individual  capacity 
as  a  defendant,  and  also  as  representing  both  a 
co-defendant,  G.,  and  the  firm  (of  which  he,  F., 
was  supposed  to  be  a  member).  F.  was  not,  in 
fact,  a  partner  in  the  firm,  nor  did  he  in  any 
way  represent  either  it  or  G.  for  the  purposes  of 
service.  The  firm  entered  a  conditional  appear- 
ance and  moved  to  discharge  the  service  as 
against  them  : — Held,  that  the  defect  in  the 
firm's  appearance,  by  reason  of  their  not  having 
appeared  individually  in  their  own  names,  could 
be  cured  by  an  undertaking  of  the  partners 
so  to  appear ;  that  upon  this  being  done  the 
service  must  be  discharged  as  against  G.,  he 
being  easily  accessible,  and  there  being  no  need 
for  prompt  service.  Nelson  v.  Pastorino,  49 
L.  T.  564— Pearson,  J. 

Effect  of,  on  Defective  Writ.] — Appearance  to 
a  writ  is  a  "  fresh  step  "  taken  within  the 
meaning  of  Ord.  LXX.  r.  2,  and  a  writ  which 
is  irregular  to  the  knowledge  of  the  defendant 
cannot  be  set  aside  on  his  application  after 
appearance.  Mulchern  v.  Doeris,  53  L.  J.,  Q.  B. 
526  ;  51  L.  T.  429— D.  But  see  Willmott  v. 
Freehold  House  Property  Co.,  61  L.  T.  652— 
C.A. 

Judgment  in  Default  of  —  Application  by 
Person  not  a  Party.] — If  a  person  who  is  not  a 
party  to  the  record,  seeks  to  set  aside  a  judg- 
ment by  which  he  is  injuriously  affected,  which 
the  defendant  in  the  action  has  allowed  to  go  by 
default,  he  ought  by  summons,  taken  out  in  the 
name  of  the  defendant,  or  if  not  entitled  to  use 
the  defendant's  name,  then  taken  out  in  his  own 
name,  but  in  that  case  served  on  both  the  plaintiff 
and  the  defendant,  apply  for  leave  to  have  the 


judgment  set  aside,  and  to  be  allowed  either  to 
defend  the  action  on  such  terms  of  indemnifying 
the  defendant  as  the  judge  may  consider  right, 
or  to  intervene  in  the  action  in  the  manner 
pointed  out  by  the  Judicature  Act,  1873,  s.  24, 
sub-s.  5.  Ord.  XXVII.  r.  15,  is  designed  to 
enable  judgments  by  default  to  be  set  aside  by 
those  who  have  or  who  can  acquire  a  locus  standi, 
and  does  not  give  a  locus  standi  to  those  who 
have  none.  Jacques  v.  Harrison,  12  Q.  B.  D. 
165 ;  53  L.  J.,  Q.  B.  137  ;  50  L.  T.  246 ;  32  W.  K. 
471— C.  A. 


liquidated  Demand — Claims  for  Fore- 


closure and  on  Covenant.]  —  The  writ  in  an 
action  to  enforce  a  mortgage  security  claimed 
an  account  of  principal,  interest,  and  costs  on 
the  mortgage  and  foreclosure  or  sale,  and  also  the 
sum  of  225/.  10*.  for  principal  and  interest  under 
the  covenant  contained  in  the  mortgage  deed. 
The  defendant  did  not  appear,  and  no  statement 
of  claim  was  delivered.  Upon  motion  by  the 
plaintiff  for  the  usual  foreclosure  judgment  nisi, 
and  for  liberty  to  sign  final  judgment  for  the 
amount  indorsed  upon  the  writ : — Held,  that  the 
plaintiff  was  entitled  under  Ord.  XIII.  r.  3,  to 
sign  judgment  for  the  liquidated  demand,  not- 
withstanding that  the  claim  was  joined  with 
a  claim  for  foreclosure,  but  that  he  was  not 
entitled  to  the  foreclosure  judgment.  Bissett 
v.  Jones,  32  Ch.  D.  636  ;  65  L.  J.,  Ch.  648 ; 
54  L.  T.  603 ;  34  W.  R.  691— Chitty,  J. 


Extent  of  Belial]- Notwithstanding  the 


provision  of  r.  4  of  Ord.  XX.  that,  whenever  a 
statement  of  claim  is  delivered  the  plaintiff  may 
therein  extend  his  claim  without  any  amend- 
ment of  the  indorsement  of  the  writ — the  plain- 
tiff cannot,  when  the  defendant  does  not  appear 
to  the  writ  and  a  statement  of  claim  is  delivered 
by  filing  it  with  the  proper  officer,  obtain 
judgment  in  default  of  appearance  for  more 
than  he  has  claimed  by  his  writ.  Gee  v.  Bell, 
35  Ch.  D.  160  ;  56  L.  J.,  Ch.  718  ;  56  L.  T.  305  ; 
35  W.  B.  805— North,  J. 

In  a  foreclosure  action,  where  a  mortgagee 
applies,  on  motion  for  judgment,  not  only  for 
foreclosure  but  also  for  a  personal  order  for  pay- 
ment of  the  mortgage  debt  and  interest  against 
a  mortgagor  who  nas  made  default  in  entering 
appearance  and  in  delivering  a  defence,  the 
statement  of  claim  ought,  however  shortly,  to 
contain  an  express  statement  of  the  covenant 
upon  which  the  personal  order  for  payment  is 
claimed.  Law  v.  Philby,56  L.  T.  230;  35 
W.  R.  401— Chitty,  J. 

Where  no  appearance  has  been  entered  by  the 
defendant  in  an  action,  the  plaintiff  cannot,  by 
his  statement  of  claim,  enlarge  the  scope  of  the 
claim  indorsed  on  his  writ.  Where,  therefore,  a 
defendant  did  not  enter  an  appearance  to  tie 
writ  issued  in  a  foreclosure  action,  and  the  writ 
was  not  indorsed  for  payment,  the  court  held 
that  the  plaintiff  was  only  entitled  to  the  usual 
order  for  foreclosure,  although,  on  his  statement 
of  claim,  he  was  also  entitled  to  an  order  for 
payment  against  the  defendant.  Law  v.  PhUby, 
56  L.  T.  622  ;  35  W.  R.  460— Chitty,  J. 

Parties  joined  as  Defendants  to  Counter- 
claim,]— A  plaintiff  by  counter-claim  can  pro- 
ceed against  defendants  by  counter-claim  who 
do  not  appear  in  the  same  way  as  a  plaintiff  in 


1421 


PRACTICE    AND    PLEADING. 


1422 


an  original  action.  A  defendant  to  an  action  by 
which  rights  of  common  were  claimed,  counter- 
claimed  against  the  plaintiffs,  and  several  others 
whom  he  added  as  defendants,  and  asked  for  an 
injunction  on  the  ground  of  trespass.  The  added 
defendants  did  not  appear  or  defend.  The 
plaintiff  by  counter-claim  moved  for  judgment 
in  default  of  appearance,  and  upon  admissions  : 
—Held,  that  the  motion  must  stand  till  the  trial, 
iw,  if  the  question  raised  by  the  counter-claim 
was  not  connected  with  the  original  subject  of 
the  action,  the  added  defendants  were  impro- 
perly brought  before  the  court ;  and  if  it  was 
connected,  then  no  relief  should  be  given  until 
triaL  Verney  v.  Thomas,  58  L.  T.  20  ;  36  W.  R. 
398— Kekewich,  J. 


6.  JUDGMENT  ON  SPECIALLY  INDORSED 
WRIT  UNDER  ORD.  XIV. 

In  what  Cases — Foreign  Judgment.] — In  an 
action  upon  a  foreign  judgment  in  which  the 
writ  of  summons  has  been  specially  indorsed 
under  Ord.  XIV.,  the  plaintiff  may  obtain  an 
order  empowering  him  to  sign  final  judgment. 
ffodtoll  y.  Baxter  (E.  B.  &  E.  884)  followed. 
Grant  v.  Barton,  13  Q.  B.  D.  302  ;  53  L.  J., 
Q.  B.  68  ;  49  L.  T.  645  ;  32  W.  R.  239— C.  A. 

Action  for  Recovery  of  Land.]  —  The 

relationship  of  landlord  and  tenant  may  be 
created  by  a  mortgage  deed,  and  therefore,  in  an 
action  for  recovery  of  land  by  mortgagees  from 
a  mortgagor  in  possession  under  a  mortgage  deed 
creating  a  tenancy  between  them,  the  writ  may 
be  specially  indorsed  under  Ord.  III.  r.  6  (F.)  so 
that  Ord.  XIV.  will  apply,  and  final  judgment 
may  be  ordered.  Daubuz  v.  Laving  tan,  13 
Q.  B.  D.  347  ;  63  L.  J.,  Q.  B.  283  ;  51  L.  T.  206  ; 
32  W.  R.  772— D. 

A  mortgage  deed  contained  a  clause  by  which, 
for  the  purpose  of  securing  the  punctual  payment 
of  the  interest,  the  mortgagor  attorned  tenant 
to  the  mortgagee,  and  the  mortgagee  had  a  power 
of  re-entry  for  default  in  payment.  Default 
having  been  made,  the  mortgagee  commenced  an 
action  for  the  recovery  of  the  premises,  and 
applied  for  judgment  under  Ord.  XIV. : — Held, 
that  the  mortgagor  was  a  tenant  whose  term  had 
expired  or  had  been  duly  determined  by  notice 
to  quit  within  the  meaning  of  Ord.  III.  r.  6  (F.), 
and  the  plaintiff  was  entitled  to  judgment. 
Daubuz  v.  Lavington  (13  Q.  B.  D.  347)  approved 
and  followed.  Hall  v.  Comfort,  18  Q.  B.  D.  11  ; 
56  L.  J.,  Q.  B.  186  ;  55  L.  T.  550  ;  35  W.  R.  48 
-D. 

— — -  Claim  for  Foreclosure  and  Debt.] — A 
writ  which  claims  foreclosure  or  sale  and  a  re- 
ceiver, besides  payment  of  the  debt  and  interest, 
ia  not  specially  indorsed  so  as  to  entitle  the 
plaintiff  to  summary  judgment  on  the  claim  for 
debt  and  interest.  Imbert-  Terry  v.  Carver,  34 
Ch.  D.  506  ;  66  L.  J.,  Ch.  716  ;  56  L.  T.  91 ;  85 
W.  B.  328— North,  J. 

JmJfment  against  future  Assets,  quando 

ins.]— In  an  action  against  an  adminis- 

tnftrix,  commenced  by  a  specially  indorsed  writ, 
th»  defendant  showed  that  she  was  entitled  to 
plead  plene  administravit,  but  did  not  dispute 


that  there  were  outstanding  assets  of  the  de- 
ceased. Leave  was  given  to  mark  judgment  of 
assets  quando  acciderint.  Form  of  order.  Find- 
later  v.  Tuohy,  16  L.  R.,  Ir.  474— Ex.  D. 


Arrears  of  Alimony  pendente  lite.] — A 


claim  for  arrears  of  alimony  pendente  lite,  is  not 
a  claim  for  a  "debt  or  liquidated  demand  in 
money  "  within  the  meaning  of  Ord.  III.  r.  6,  so 
as  to  entitle  the  plaintiff  to  apply  for  judgment 
under  Ord.  XI V.  r.  1.  Bailey  v.  Bailey,  13 
Q.  B.  D.  855— C.  A.  Affirming  53  L.  J.,  Q.  B. 
583  ;  50  L.  T.  722  ;  32  W.  R.  856— D. 

Action  on  Solicitor's  Bill— Taxation.  ]- 


Where  an  action  is  brought  on  a  solicitor's  bill 
of  costs,  and  the  defendant  admits  his  liability, 
but  desires  that  the  bill  should  be  taxed,  the 
proper  order  to  be  made  on  an  application  for 
liberty  to  sign  judgment  under  Ord.  XIV.  r.  1, 
is  as  follows  : — "  It  is  ordered  that  the  bill  of 
costs  on  which  the  action  is  brought  be  referred 
to  the  taxing-master,  pursuant  to  the  statute  6 
&  7  Vict.  c.  73,  and  that  the  plaintiff  give  credit 
at  the  time  of  taxation  for  all  sums  of  money 
received  by  him  from  or  on  account  of  the 
defendant,  and  let  the  plaintiff  be  at  liberty  to 
sign  judgment  for  the  amount  of  the  master's 
allocatur  in  the  said  taxation,  and  costs  to  bo 
taxed.  Smith  v.  Edwards,  22  Q.  B.  D.  10 ;  58 
L.  J.,  Q.  B.  227  ;  60  L.  T.  10 ;  37  W.  R.  112— 
C.A. 

In  an  action  by  solicitors  upon  an  untaxed 
bill  of  costs,  the  court,  on  an  application  for 
judgment  under  Ord.  XIII.  r.  2,  referred  the 
costs  for  taxation  subject  to  credits,  and  ordered 
judgment  to  be  entered  for  the  amount  certified 
to  be  due.  Larkin  v.  Jflnemey,  16  L.  R.,  Ir. 
246— Ex.  D. 

Excessive  Sum  inadvortently  Claimed.] 

— On  a  motion  for  judgment,  the  plaintiff's  affi- 
davit verified  the  whole  of  the  debt  claimed  in 
the  writ  of  summons ;  but  the  defendant  having 
filed  an  affidavit  disputing  a  part  of  the  demand, 
the  plaintiff  by  an  affidavit  in  reply  and  by  his 
counsel,  admitted  that  this  part  of  the  claim 
could  not  be  sustained,  and  had  been  included 
in  the  writ  by  mistake  : — Held,  that  the  plaintiff 
was  entitled  to  judgment  for  the  residue.  Bye 
v.  Hatches,  16  L.  R.t  Ir.  12— Ex.  D. 


Bond — Penalty.]— The  indorsement  on  a 


writ  claimed  500Z.,  as  the  principal  sum  due  on  a 
bond  conditioned  for  the  payment  by  the  obligor 
to  the  plaintiff  of  an  annuity  of  26t.  during  the 
life  of  a  child,  and  until  she  should  attain  the  age 
of  sixteen  years,  by  specified  quarterly  payments, 
and  alleged  that  two  of  such  payments  were  due 
and  unpaid  : — Held,  that  the  plaintiff  was  not 
entitled  to  proceed  under  Ord.  XIV.  r.  1,  to 
obtain  final  judgment,  but  was  limited  to  the 
procedure  specified  in  8  &  9  Will.  3,  c.  11,  a  8, 
and  Ord.  XIII.  r.  14.  Tuther  v.  Caralampi, 
21  Q.  B.  D.  414 ;  69  L.  T.  141  ;  37  W.  R.  94  ; 
52  J.  P.  616— D. 


Part  of  Claim  unliquidated.  ]—&<?  Clarke 


v.  Berger,  ante,  col.  1409. 

Porm  of  Order  against  Harried  .Woman.]— An 
order  giving  leave  to  enter  final  judgment  against 
a  married  woman  in  respect  of  her  separate 
estate  by  virtue  of  the  Married  Women's  Pro- 


1423 


PRACTICE    AND    PLEADING. 


1424 


perty  Act,  1882  (46  &  46  Vict.  c.  75),  ss.  1, 19, 
should  state  that  execution  is  to  be  limited  to 
such  separate  estate  as  the  defendant  is  not  re- 
strained from  anticipating  unless  such  restraint 
exists  under  any  settlement  or  agreement  for  a 
settlement  of  her  own  property  made  or  entered 
into  by  herself.  Bursill  v.  Tanner,  13  Q.  B.  D. 
691 ;  50  L.  T.  589  ;  32  W.  R.  827— D. 


Evidence  of  Separate  Estate.]— In  an 


action  against  husband  and  wife  to  recover  a 
debt  of  the  wife  contracted  before  marriage, 
where  the  marriage  has  taken  place  after  the 
coming  into  operation  of  the  Married  Women's 
Property  Act,  1870,  and  the  Married  Women's 
Property  Act,  1870,  Amendment  Act,  1874,  but 
before  the  coming  into  operation  of  the  Married 
Women's  Property  Act,  1882,  judgment  may  be 
entered  against  the  wife  under  Ord.  XIV.  r.  1, 
making  the  debt  and  costs  payable  out  of  her 
separate  property,  with  a  limitation  as  regards 
execution  similar  to  that  in  the  form  settled  in 
Scott  v.  Morley  (20  Q.  B.  D.  120),  without 
proof  of  the  existence  of  separate  estate  at  the 
date  of  the  judgment.  Downe  v.  Fletcher,  21 
Q.  B.  D.  11  ;  59  L.  T.  180 ;  36  W.  R.  694  ;  52 
J.  P.  375— D. 

When  Application  to  be  made.] — If  a  plaintiff, 
after  appearance  by  the  defendant,  takes  a  de- 
liberate step  to  have  an  action  tried  by  a  jury,  by 
serving  a  statement  of  claim,  or  notice  in  lieu  of 
statement  of  claim,  he  cannot  then  move  for 
final  judgment  under  Ord.  XII L  r.  1.  Stewarts- 
town  Loan  Company  v.  Daly,  12  L.  R.,  Ir.  418 — 
Ex.  D. 

Affidavit — Sufficiency  of.] — In  an  application 
for  final  judgment  under  Ord.  XIII.  r.  1,  the 
affidavit  of  the  plaintiff,  after  verifying  the  cause 
of  action,  stated  that  the  plaintiff  was  u  advised 
and  believed  that  the  defendant  had  no  defence 
on  the  merits  to  the  action  "  : — Held,  that  the 
affidavit  was  sufficient.  Manning  v.  Moriarty, 
12  L.  R.,  Ir.  372— Q.  B.  D. 

Upon  an  application  to  sign  final  judgment  on 
a  writ,  which  was  admittedly  a  specially  indorsed 
one,  for  goods  sold  and  delivered,  the  verification 
of  the  cause  of  action  was  a  paragraph  in  the 
plaintiff's  affidavit  in  the  following  words : — 
"  The  defendant  herein  is  indebted  to  me  in  the 
sum  of  24  J.  16*."  (being  the  amount  indorsed), 
"as  per  particulars  specially  indorsed  on  the 
writ  of  summons  herein  "  : — Held,  that  the  para- 
graph, coupled  with  the  indorsement,  was  suffi- 
cient to  entitle  the  plaintiff  to  judgment.  Murphy 
v.  Nolan,  18  L.  IU,  Ir.  468— C.  A. 


7.  JOINDER  OF  CAUSES  OF  ACTION. 

Aotion  for  Recovery  of  Land— Amount  of 
Valuation.] — Where  an  agreement  for  a  tenancy 
had  failed  and  the  plaintiff  brought  an  action 
for  recovery  of  the  land,  and  the  defendant, 
who  had  entered  into  possession  of  the  land,  set 
op  the  agreement  as  a  defence ;  on  summons 
brought  by  the  plaintiff  for  leave  to  amend  the 
indorsement  on  the  writ  by  claiming  a  valuation 
which  he  alleged  that  the  defendant  had  agreed 
to  pay  on  entering  into  possession  of  the  land, 
but  had  not  paid : — Held,  that  the  plaintiff  had 
a  right  to  claim  the  valuation  under  the  agree- 


ment as  an  alternative,  in  case  he  failed  in 
recovering  the  land,  and  that  the  amendment 
should  be  allowed.  Rushbrooke  v.  Farley,  54 
L.  J.,  Ch.  1079  ;  62  L.  T.  672 ;  33  W.  R.  557- 
V.-C.  B.  See  also  Clark  v.  Wray,  post,  coL 
1503. 


Foreclosure.] — A  mortgage  was  created 


of  certain  land  by  A.,  who  subsequently  went 
into  liquidation.  The  trustee  in  the  liquidation 
sold  the  equity  of  redemption  to  B.  An  action 
was  brought  by  the  mortgagee  against  B.  for 
foreclosure.  The  security  was  insufficient,  and 
it  was  necessary  to  obtain  possession  as  soon  is 
possible.  On  demanding  possession,  however, 
the  mortgagee  found  that  A.  was  in  possession 
and  refused  to  go  out.  The  mortgagee  asked  for 
leave  to  amend  the  writ  in  the  action  by  adding 
the  name  of  A.  as  a  defendant,  and  by  including, 
as  part  of  the  relief  sought,  a  claim  for  recovery 
of  possession  of  the  mortgaged  property  : — Held, 
that  the  leave  could  not  be  granted.  Suteliff 
v.  Wood,  53  L.  J.,  Ch.  970;  50  L.  T.  705- 
Kay,  J. 

Irregularity— Objection   by   Defence.]  —  The 

plaintiff,  without  obtaining  leave  of  the  court, 
joined  a  claim  for  recovery  of  land  with  other 
claims.  By  his  statement  of  claim  he  altered 
his  claim  for  relief  by  omitting  the  claim  for  re- 
covery of  land.  The  defendant  by  his  defence 
raised  the  objection  that  the  writ  of  summon* 
was  issued  without  leave  of  the  court : — Held 
that  the  defence  ought  not  to  be  struck  out  as 
embarrassing.  Wilmott  v.  Freehold  House  Pro- 
perty Company,  51  L.  T.  652 — C.  A. 

Semble,  that  such  an  objection  is  properly 
pleaded  in  the  defence,  that  the  plaintiff  cannot 
cure  the  irregularity  in  his  writ  by  omitting  bis 
claim  for  recovery  of  land  from  his  statement  of 
claim,  that  to  cure  the  irregularity  the  writ  of 
summons  must  be  amended,  and  that  such 
amendment  cannot  be  made  without  the  consent 
of  the  defendant.    lb. 


Time  for  taking  Objection.] — An  action 


was  commenced  against  a  trustee  and  the  exe- 
cutors of  his  deceased  co-trustee  for  the  adminis- 
tration of  the  estate  of  a  testatrix.  The  plaintiffs 
subsequently  amended  their  statement  of  claim 
without  the  leave  of  the  court,  and  asked  that 
one  of  the  executors  of  the  deceased  trustee 
might  be  ordered  to  give  up  possession  of  a 
certain  inn  belonging  to  the  trust  estate.  It  was 
pleaded  by  the  defence  and  urged  at  the  trial 
that  this  pleading  was  irregular,  as  joining  two 
causes  of  action  without  leave : — Held,  that  the 
defendant  should  have  applied  at  once  to  have 
the  pleadings  set  right,  and  the  objection  was 
now  untenable.  Derbon,  In  re,  Derbon  v. 
Colli*,  58  L.  T.  519 ;  36  W.  R.  667— Keke- 
wich,  J. 

Unconnected  Claims  against  several  Data* 
dants.  ] — To  bring  into  one  claim  distinct  causes 
of  action  against  different  persons,  neither  of 
them  having  anything  to  do  with  the  other 
(except  as  far  as  it  is  historically  connected  with 
it  as  one  matter  in  the  transaction)  is  not  con* 
tern  plated  by  Ord.  XVIII.  r.  1,  which  authorises 
the  joinder  not  of  several  actions  against  distinct 
persons,  but  of  several  causes  of  action.  Bur- 
stall  v.  Beyfus,  26  Ch.  D.  35  ;  55  L.  J.,  Ch.  566 ; 
50  L.  T.  542 ;  32  W.  R.  418— C.  A. 


1426 


PRACTICE    AND    PLEADING. 


1426 


8.  INTERMEDIATE  PROCEEDINGS. 

4.  Payment  into  and  out  op  Court — Funds 

in  Court. 

i.  Order  on  Accounting-  Parties. 

In  what  Cases.] — Upon  an  interlocutory  ap- 
plication for  the  payment  of  money  into  court 
made  before  the  trial  of  an  action  for  the  taking 
of  an  account,  where  an  account  has  been 
rendered,  and  the  court  has  before  it  the  parties 
to  the  account  and  evidence  as  to  the  items  in 
dispute  between  them,  the  court  will  look  into 
the  facts  of  the  case,  and  if  in  the  fair  exercise 
of  its  judicial  discretion  it  can  arrive  at  a  con- 
clusion that  a  sum  will  be  doe  to  the  plaintiff 
on  the  taking  of  the  account,  and  what  the 
amount  of  that  sum  will  be,  the  court  will  order 
the  defendant  to  pay  that  amount  into  court. 
Wanldyn  v.  Wilton,  85  Ch.  D.  180  ;  56  L.  J.,  Ch. 
209 ;  56  L.  T.  52  ;  35  W.  R.  332— Stirling,  J. 

Agreement  for  Mining  Lease— Lessee  in 

Pasmrion— Payment  of  Royalties  into  Court  ]— 
The  plaintiffs  commenced  an  action  against  the 
defendant  for  specific  performance  of  an  agree- 
ment for  a  lease  of  a  coal  mine  by  the  plaintiffs 
to  the  defendant  at  a  royalty,  as  the  plaintiffs 
alleged,  of  lOd.  per  ton.  The  defendant  counter- 
claimed  to  have  specific  performance  with  a 
royalty  of  less  amount.  The  defendant  was  in 
possession,  and  raising  and  selling  large  quan- 
tities of  coal,  but  he  alleged  that  he  had  ex- 
pended on  the  mine  more  than  the  value  of  the 
coal  raised.  He  also  brought  an  action  against 
the  plaintiffs  in  the  Queen's  Bench  Division  to 
obtain  damages  for  misrepresentation,  alleged  to 
have  been  made  to  him  for  the  purpose  of 
inducing  him  to  enter  into  the  agreement,  which 
action  was  still  pending.  The  plaintiffs  moved 
for  an  interlocutory  order  that  the  defendant 
might  be  ordered  to  pay  into  court  the  amount 
of  royalties  at  lOd.  per  ton  on  the  coal  he  had 
raised,  but  the  court  refused  the  motion  : — Held, 
on  appeal,  that  although  it  would  not  be  right, 
while  the  rate  of  royalty  was  in  dispute,  to  order 
the  defendant  to  pay  into  court  the  amount  of 
royalties  at  the  rate  claimed  by  the  plaintiffs, 
he  ought  to  be  ordered  to  pay  in  the  amount 
of  royalties  at  the  rate  which  he  himself  alleged 
to  be  the  one  agreed  upon,  and  that  as  his 
carrying  away  coal  diminished  the  value  of  the 
property,  he  would  not  have  the  usual  option  of 
giving  up  possession  instead  of  paying  money 
into  court.  Lewi*  v.  Jam**,  32  Ch.  D.  326  ;  56 
U  J.,  Ch.  163  ;  54  L.  T.  260 ;  34  W.  R.  619  ;  50 
J.  P.  423— C.  A. 

Admission  of  Defendant — Sufficiency  of.] — 
The  defendant,  one  of  the  trustees  of  a  settle- 
ment, in  letters  written  to  the  plaintiff,  his  co- 
trustee, before  the  commencement  of  this  action 
for  the  administration  of  the  trusts,  admitted 
having  received  300?.,  part  of  the  trust  funds, 
and  invested  it  in  an  unauthorised  way.  The 
plaintiff,  after  the  defendant  had  appeared  in 
the  action,  took  out  a  summons  to  have  the  3002. 
famght  into  court,  and  made  an  affidavit  de- 
posing that  he  had  paid  the  money  to  the 
defendant,  and  stating  the  admissions  con- 
tained in  the  defendant's  letters  as  to  its 
application.  The  defendant  did  not  answer  this 
affidavit  or  adduce  any  evidence,  and  the  money 


was  ordered  into  court  on  the  ground  that  the 
letters  were  a  sufficient  admission  within  Ord. 
XXXII.  r.  6.  The  defendant  appealed  : — Held, 
that  as  the  defendant  had  not  met  the  affidavit, 
there  was  a  sufficient  admission  that  the  money 
was  in  his  hands,  and  that  the  appeal  must  be 
dismissed.  Freeman  v.  Cox  (8  Cn.  D.  148)  ap- 
proved and  followed.  Per  Fry,  L.J.,  whether 
the  letters  were  not  a  sufficient  admission  within 
Ord.  XXXII.  r.  6,  quaere.  Porrett  v.  White, 
31  Ch.  D.  52 ;  65  L.  J.,  Ch.  79 ;  53  L.  T.  514  ; 
34  W.  R.  65— C.  A. 

In  Affidavit   in   another  Action.  1 — An 


order  will  not  be  made,  under  r.  6  of  Ord. 
XXXII.  in  an  action  for  money  lent,  unless 
there  is  a  clear  admission  that  the  debt  is  due 
and  recoverable  in  the  action  in  which  the  ad- 
mission is  made  : — Quaere,  whether  the  words 
"or  otherwise"  in  r.  6  refer  only  to  cases  in 
which  notice  has  been  given  under  r.  1  or  r.  4  of 
Ord.  XXXII.  Landergan  v.  Feast,  55  L.  T.  42  ; 
34  W.  R.  691— C.  A.  Reversing  65  L.  J.,  Ch. 
505— V.-C.  B. 


Letters.] — Trust  funds  may  be  ordered 


to  be  brought  into  court  by  the  trustee,  an 
accounting  party,  upon  admissions  contained  in 
letters  written  before  action  brought  that  he  has 
received  the  money,  and  a  recital  to  that  effect 
contained  in  the  settlement,  his  execution  of 
which  as  trustee  has  been  proved,  although  there 
is  no  formal  admission  in  his  pleadings  or  affi- 
davits that  he  has  received  and  holds  the  money. 
Hampden  v.  Wallis,  27  Ch.  D.  261  ;  54  L.  J., 
Ch.  1175;  51  L.  T.  357;  32  W.  R.  977— 
Chitty,  J.    See  also  Porrett  v.  White,  supra. 

Enforcement  of  Order  for  Payment  into  Court.] 
— See  Coney,  In  re,  and  Whiteley,  In  re,  post, 
cols.  1453,  1454. 


ii.  Payment  into  Court  with  Defence. 

Particulars  of  Items.]— The  court  has  a  dis- 
cretion to  order  a  defendant  to  give  particulars 
of  the  items  of  claim  in  respect  of  which  he 
pays  money  into  court,  but  it  can  only  make 
such  an  order  when  the  trial  of  the  action  will 
be  facilitated  and  neither  party  embarrassed  by 
it.  Orient  Steam  Navigation  Company  v. 
Oeean  Marine  Insurance  Company,  34  W.  R. 
442— D. 

An  action  was  brought  by  the  plaintiff  as  les- 
sor, against  the  defendants,  as  lessees,  of  certain 
premises  for— (1)  possession  ;  (2)  mesne  profits ; 
(3)  damages  for  dilapidations  and  non-repair. 
The  defence  was  a  general  denial  of  all  liability, 
and  a  payment  of  30/.  into  court,  as  sufficient  to 
satisfy  the  plaintiff's  claim  in  the  action.  A 
judge  at  chambers  having  made  an  order  that 
the  defendants  should  give  to  the  plaintiff  par- 
ticulars in  writing,  stating  in  respect  of  which 
of  the  two  head  8  of  claim  (mesne  profits  and 
damages  for  dilapidations)  the  payment  into 
court  was  made,  and  if  in  respect  of  both,  how 
much  for  each  head  : — Held,  that  the  order  was 
right,  as  the  defendants  ought  to  give  the  par- 
ticulars asked  for,  apportioning  the  sum  paid 
into  the  different  heads  of  claim.  Rowe  v.  Kelly, 
69  L.  T.  139— D. 

Defence  setting  up  Tender — Denial  of  Liability 
— Payment  oat  of  Court — Liability  of  Solicitor 


1427 


PRACTICE    AND    PLEADING. 


1428 


to  refund.] — In  an  action  for  wrongful  dismissal, 
claiming  a  year's  salary  in  lieu  of  notice,  the 
defendant  pleaded  that  the  plaintiff  was  only 
entitled  to  one  month's  notice ;  or,  in  the  alter- 
native, three  months ;  that  before  action  the 
defendant  made  tender  of  three  months'  salary, 
which  the  plaintiff  refused  ;  that  the  defendant 
had  paid  the  amount  into  court,  and  that  it  was 
enough  to  satisfy  the  plaintiff's  claim.  The 
request  for  lodgment  in  court  contained  a  state- 
ment that  the  money  was  paid  in  with  a  defence 
setting  up  tender.  The  plaintiff's  solicitor,  with- 
out obtaining  an  order,  but  on  the  written  autho- 
rity of  the  plaintiff,  took  the  money  out  of  court, 
and  the  plaintiff  proceeded  with  the  action.  At 
the  trial  judgment  was  given  for  the  defendant 
on  the  ground  that  the  plaintiff  was  only  entitled 
to  one  month's  salary.  The  defendant  applied 
for  an  order  against  the  solicitor  to  refund  so 
much  of  the  money  taken  out  of  court  as  repre- 
sented the  difference  between  one  month's  and 
three  months'  salary.  The  solicitor  had  acted 
bona  fide  in  taking  the  money  out  of  court,  and 
had  paid  it  over  to  the  plaintiff  before  the  ap- 
plication to  make  him  refund  it  was  made : — 
Held,  that  although  the  plaintiff  ought  not  to 
have  had  the  money  out  of  court,  because  a 
defence  of  tender  of  the  sum  paid  in  could  not 
be  pleaded  to  a  claim  for  unliquidated  damages, 
yet  under  the  circumstances  the  solicitor  ought 
not  to  be  ordered  to  refund  it.  Davys  v. 
Richardson,  21  Q.  B.  D.  202 ;  57  L.  J.,  Q.  B. 
409  ;  69  L.  T.  765  ;  36  W.  R.  728— C.  A. 

Denial  of  Liability—Order  for  Payment  out.] 
— Where  money  is  paid  into  court  with  a  defence 
denying  liability,  and  the  plaintiff  does  not 
accept  it  in  satisfaction,  an  order  for  payment 
of  such  money  out  of  court  cannot  be  made 
until  after  the  trial  or  other  determination  of 
the  action.  Maple  v.  Shrewsbury  (EarT),  19 
Q.  B.  D.  463  ;  56  L.  J.,  Q.  B.  601  ;  57  L.  T.  443  ; 
35  W.  B.  819— C.  A. 


Payment  in,  by  Mistake— Taking  out] 


— In  an  action  for  1,349/.,  the  defendants  paid 
167/.  into  court  without  regard  to  the  regulations 
prescribed  by  the  Rules  of  Court,  1883,  and  the 
Supreme  Court  Funds  Rules,  1884.  On  the  day 
of  payment  into  court  the  defendants'  solicitors 
wrote  to  the  plaintiff's  solicitor  stating  that  they 
had  that  day  paid  167/.  into  court  to  the  credit 
of  the  action,  "  in  discharge  of  the  plaintiff's 
claim  in  this  action."  On  the  same  day  the 
defendant  delivered  a  defence,  which  con- 
tained a  denial  of  liability  to  the  plaintiff,  and 
stated  that  the  sum  paid  into  court  was  sufficient 
to  satisfy  the  plaintiff's  claim  if  any  should  be 
established.  The  plaintiff  took  the  money  out 
of  court  and  then  continued  the  proceedings  in 
the  action : — Held,  that  in  the  circumstances 
the  plaintiff  must  either  keep  the  money  and 
let  all  further  proceedings  except  as  to  costs  be 
stayed,  or  pay  the  money  Into  court  again,  and 
go  on  with  the  action.  Stamford  (EarV),  In  re, 
Socage  v.  Payne,  53  L.  T.  612  ;  33  W.  R.  909— 
C.A. 

Alternative  Payment— Defendant  Succeeding 
at  Trial— Sight  to  Judgment]— Where  the  de- 
fendant succeeds  at  the  trial  on  an  issue  on 
money  paid  into  court  under  Ord.  XXX.  r.  1, 
of  the  Rules  of  1875,  with  a  defence  stating 
such  payment  as  an  alternative  defence  to  the 


action,  he  is  entitled  to  have  judgment  entered 
for  him  in  the  action.  In  an  action  for  trespas 
in  breaking  and  entering  the  plaintiffs  land, 
the  defendants  paid  money  into  court  under 
Ord.  XXX.  r.  1,  of  the  Rules  of  1875,  and  in 
their  defence  denied  the  plaintiff's  possession  of 
the  land,  and  also  stated  that,  without  admit- 
ting any  kind  of  liability,  the  sum  paid  into 
court  was  sufficient  to  satisfy  any  damage  which 
the  plaintiff  might  have  sustained  in  consequence 
of  any  acts  of  theirs.  The  plaintiff  joined  issue 
upon  these  defences,  but  failed  at  the  trial  to 
establish  any  damages  exceeding  the  sum  paid 
into  court,  though  he  succeeded  on  the  other 
issue.  The  Court  of  Appeal  treated  such  defence 
of  payment  into  court  as  an  alternative  payment, 
and  as  it  went  to  the  whole  cause  of  action  :— 
Held,  that  the  defendants  were  entitled  to  judg- 
ment.    Wheeler  v.  United  Telephone  Company 

13  Q.  B.  D.  597 ;  53  L.  J.,  Q.  B.  466 ;  60  L.  T. 
749 ;  83  W.  R.  295— C.  A.  S.  P.  Gtrutari  v. 
Carr,  13  Q.  B.  D.  598,  n.;  53  L.  J.,  Q.  B.  467,  n.; 
33  W.  R.  296,  n.— C.  A. 

Costs — Several  Breaches  of  Contract— Payment 
into  Court  in  respect  of  one  Breach— Acceptance 
in  Satisfaction.] — In  an  action  for  breach  of 
contract  assigning  two  distinct  breaches,  the 
defendants  pleaded  denying  the  breaches,  and 
alternatively  paid  money  into  court  with  regard 
to  one  of  the  breaches.  The  plaintiffs  gave 
notice  under  Ord.  XXII.  r.  7,  that  they  accepted 
the  money  paid  into  court  in  full  satisfaction  of 
the  causes  of  action  in  the  statement  of  claim  :— 
Held,  that  plaintiffs  were  entitled,  without  pro- 
ceeding to  judgment,  to  their  costs  of  the  action ; 
for  by  accepting  the  money  paid  into  court  in 
satisfaction  of  all  their  alleged  causes  of  action 
they  had  in  effect  discontinued  or  withdrawn  the 
action  as  to  the  breach,  in  respect  of  which  the 
money  was  not  paid  in.    JiPIlwraith  v.  Green, 

14  Q.  B.  D.  766  ;  64  L.  J.,  Q.  B.  41  ;  52  L.  T.  81 
— O.A. 


Payment  into  Court  for  Debt  and  Costs.] 


— In  an  action  for  a  money  demand,  the  defen- 
dant pleaded  an  agreement,  after  action  brought 
by  the  plaintiffs  to  take  a  certain  sum  for  debt 
and  costs,  and  brought  that  amount  into  court 
on  foot  of  debt  and  costs.  The  plaintiffs'  soli- 
citor served  notice  on  the  defendant's  accepting 
the  sum  so  paid  into  court  "in  satisfaction  of 
the  plaintiffs'  claim  in  respect  of  which  it  was 
paid  in : " — Held,  that  the  plaintiffs  were  not 
entitled  to  any  costs  beyond  the  sum  lodged  in 
court.  Goodbody  v.  Gallaher,  16  L.  R..  Ir.  356 
— Q.  B.  D. 

iii.  Funds  in  Court. 

Under  the  Lands  Clauses  Aets.]— See  Laitos 
Clauses  Act. 

Under  Trustee  Belief  Act.] — See  Tbust  akd 
Tbustxe. 

Payment  out  of  small  Sum  Mimed  Woman.] 
—Where  a  married  woman  had  been  for  many 
years  deserted  by  her  husband,  and  no  settle- 
ment had  been  made  upon  her  marriage,  tibe 
court  made  an  order  for  payment  to  her  by  way 
of'  provisional  advance  of  a  small  portion  of  tbe 
share  of  a  capital  fund  in  court,  to  which  she 


1429 


PRACTICE    AND    PLEADING. 


1430 


had  been  declared  entitled.  Barker  v.  Vegan, 
17  L.  R.,  Ir.  447— V.-C. 

Infants.]— Small  sums  of  money  repre- 
senting snares  or  infants  in  a  fund  in  court  may 
be  directed  to  be  paid  out  by  the  Paymaster- 
General  into  the  Post-office  Savings  Bank  to 
accounts  in  the  names  of  the  infants.  Elliott  v. 
Elliott,  54  L.  J.,  Ch.  1142— Chitty,  J. 

Payment  out  —  Carrying  over  to  separate 
Account— Title  of  Account] — Where  it  is  pro- 
posed upon  a  petition  for  payment  out  of  part  of 
af  and  in  court  to  carry  over  a  share  in  such  fund 
to  the  separate  account  of  the  person  entitled,  the 
account  should  be  in  the  name  of  such  person, 
and  not  in  the  name  of  such  person  or  his  in- 
cumbrancer— i.e.,  "the  account  of  A.  B."  not 
"the  account  of  A.  B.  or  his  incumbrancers/' 
Hargrove  v.  Kettlewell,  55  L.  T.  674 ;  35  W.  R. 
186-Chitty,  J. 

Contingent    Interests  —  Stop  -  order  — 

Mortgagees.] — Where  a  contingent  interest  in  a 
fond  in  court  has  been  mortgaged,  and  the  mort- 
gagee places  a  stop-order  on  the  fund,  but  the 
mortgagor  dies  before  his  interest  vests,  the 
persons  ultimately  entitled  to  the  fund  upon 
applying  for  payment  out,  need  not  serve  such 
mortgagee.  Vernon,  v.  Oroft,  58  L.  T.  919  ;  36 
W.  B.  778— Chitty,  J. 

Money  representing  Real  Estate — Affl- 

aavit  of  Ho  Incumbrances.] — Applications  by 
persons  claiming  to  be  absolutely  entitled  for 
payment  out  of  money  in  court  representing 
real  estate,  should  be  supported  by  an  affidavit 
of  no  incumbrances,  and  prima  facie,  the  appli- 
cant is  the  proper  person  to  make  the  affidavit. 
WtUiams  v.  Ware,  57  L.  J.,  Ch.  497 ;  58  L.  T. 
876-Chitty,  J. 

16  Infant.]— See  Infant.  IIL 

—  Person  of  Unsound  Kind  not  so  found.] 
— See  Lunatic,  I. 

Forged  Affidavit — Order  on  Solicitor  to 

leasy.] — Where  money  was  paid  out  of  court 
upon  a  forged  affidavit,  the  solicitor  to  the  pro- 
ceedings taking  no  steps  in  the  matter  himself, 
but  allowing  the  matter  to  be  attended  to  by  a 
managing  clerk  of  another  firm,  the  solicitor 
was  held  liable  to  replace  the  money  and  pay 
all  necessary  costs  incurred.  Slater  v.  Slater, 
W  L.  T.  149— Kay,  J. 


in  as  Security  for  Costs.  ]- 


Money 

See  post,  coL  1443. 


Assignment  of  Trust  Fund — Duty  of  Assignee 
aa  to  Hotiee.]— When  an  assignment  is  made  of 
an  interest  in  trust  funds,  part  of  which  is  in 
court  and  part  in  the  hands  of  trustees,  the 
assignee  in  order  to  complete  his  title  must,  as 
regards  the  funds  in  the  hands  of  the  trustees, 
give  notice  to  the  trustees.  Notice  to  the  trus- 
tees will  be  ineffectual  as  regards  the  fund  in 
court,  and  as  to  that  fund  the  priorities  of  dif- 
ferent assignees  will  be  determined  by  the  dates 
at  which  they  nave  obtained  stop-orders.  An 
assignee  who  has  obtained  a  stop-order  is  en- 
titled (as  regards  the  fond  in  court)  to  priority 
over  a  prior  assignee  (of  whose  assignment  he 


had  no  notice)  who  had  given  notice  to  the  trustees 
before  the  date  of  the  stop-order,  but  who  had 
not  himself  obtained  a  stop-order.  Mutual  Life 
Assurance  Society  v.  Langley,  32  Ch.  D.  460 ; 

54  L.  T.  326— C.  A. 

Petition  or  Summons— Payment  out  of  Court.] 
— Money  had  been  paid  into  court  by  executors 
under  the  Trustee  Belief  Act  to  the  credit  of  an 
account  entitled,  "  In  the  matter  of  the  trusts  of 
the  sale  moneys  of  certain  real  estate  formerly 
belonging  to  E.,  deceased,  and  subject  to  the 
trusts  of  a  certain  Royal  warrant  dated  the  6th 
August,  1861."  The  fund  had  originally  been 
about  1,500/.  On  an  application  by  summons 
under  Ord.  LV.,  600/.,  part  of  the  fund,  was 
ordered  to  be  paid  out,  but  as  to  the  remainder 
the  summons  stood  over  for  further  evidence  as 
to  the  death  of  an  annuitant.  The  further  evi- 
dence having  been  obtained  the  application  was 
renewed,  the  summons  asking  forpayment  out 
of  the  balance  to  the  applicant : — Held,  that  the 
case  was  not  within  Ord.  LV.  at  all,  and  the 
application  ought  to  be  made  by  petition  and 
not  by  summons.  Etans,  In  re,  54  L.  T.  527 — 
Kay,  J. 

A  sum  of  more  than  1,000/.  had  been  paid 
into  court  in  1883,  under  the  Trustee  Relief  Act, 
representing  the  share  under  a  will  of  J.  R.,  who 
could  not  be  found.  The  administrator  of  J.  R. 
now  took  out  a  summons  for  payment  out  of 
this  sum  upon  evidence  that  J.  R.  had  attained 
twenty-one  and  died  intestate  : — Held,  that  the 
court  would  not  make  the  order  without  a  peti- 
tion. Rhodes'  Will,  In  re,  31  Ch.  D.  499  ;  55 
L.  J.,  Ch.  477  ;  54  L.  T.  294  ;  34  W.  R.  270,  601 
— Pearson,  J. 

The  generality  of  sub-s.  1  of  Ord.  LV.,  r.  2,  of 
Rules  of  Court,  1883,  is  not  cut  down  by  sub-s.  5 
of  the  same  rule ;  and  consequently,  an  applica- 
tion under  the  Trustee  Relief  Acts,  for  the  pay- 
ment out  of  court  of  a  fund,  even  thougfn  it 
exceeds  1,000/.,  where  the  title  of  the  applicant 
merely  depends  upon  proof  of  his  birth,  should 
be  made  by  summons  and  not  by  petition. 
Broadioood's  Trusts,  In  re,  55  L.  J.,  Ch.  646  ; 

55  L.  T.  312— Chitty,  J. 

Where  the  title  to  a  fund  in  court  depends 
only  upon  proof  of  the  identity  of  the  birth, 
marriage,  or  death  of  any  person,  the  mere  fact 
that  the  fund  exceeds  1,000/.  will  not  justify  the 
making  of  an  application  for  the  payment  or 
transfer  of  the  fund  out  of  court  by  petition 
instead  of  by  summons  in  chambers.  Rhodes, 
In  re  (31  Ch.  D.  499),  commented  on.  Bates  v. 
Moore,  38  Ch.  D.  381  ;  67  L.  J.,Ch.789  ;  58L.T. 
513  ;  36  W.  R.  586— North,  J. 

See  also  Lands  Clauses  Act,  III.  3. 


Stop-order.] — Where  a  fund  in  court, 


paid  in  under  the  Trustee  Relief  Act,  1847, 
exceeds  1,000/.,  and  there  has  been  no  prior 
application  in  the  matter  of  the  fund,  a  petition 
and  not  a  summons  is  the  proper  mode  of  apply, 
ing,  under  rr.  12  and  13  of  Ord.  XLVI.  of  the 
Rules  of  Court,  1883,  for  a  stop-order  on  the  fund 
so  paid  in.  Toogoo&s  Trusts,  In  re,  56  L.  T.  703 
—Chitty,  J. 


b.  Stating  Pboceedinos. 
i.  Lie  Alibi  pendens. 
Breaoh  of  Faith.]— A  collision  occurred  on  the 


1431 


PRACTICE    AND    PLEADING. 


1432 


high  seas  between  the  C.  and  the  J.,  two  foreign 
vessels.  The  C.  was  arrested  in  Holland  in  an 
■action  brought  by  the  owners  of  the  J.  and  her 
cargo,  but  was  released  with  the  consent  of  the 
agent  of  the  J.  on  the  guarantee  of  a  firm  of  under- 
writers interested  in  the  C.  to  answer  judgment 
in  the  action.  Cross  proceedings  were  instituted 
in  the  Dutch  court  by  the  owners  of  the  C.  and 
the  J.  An  action  was  subsequently  commenced 
in  this  country  against  the  owners  of  the  C.  by 
the  owners  of  the  J.  and  her  cargo,  and  the  C. 
arrested  in  respect  of  the  same  collision.  The 
plaintiffs  expressed  their  willingness  to  abandon 
the  action  in  Holland :  —  Held  (dissentiente 
Brett,  M.R.),  that  the  proceedings  in  this  country 
mast  be  stayed  and  the  ship  released.  Tlie 
Chrirtiansborg,  10  P.  D.  HI  ;  54  L.  J.,  P.  84  ; 
53  L.  T.  612 ;  5  Asp.  M.  C.  491— C.  A. 

Petition  for  Divorce  in  India — Petition  for 
Restitution  in  England.]— A  husband  who  had 
been  residing  with  his  wife  in  India  presented  a 
petition  in  India  for  a  divorce  from  her  on  the 
ground  of  her  adultery  with  the  co-respondent, 
who  also  resided  in  India.  Before  tbe  presenta- 
tion of  the  petition  the  husband  sent  his  wife 
home  to  her  relations  in  England,  and  whilst  the 
petition  was  pending  he  came  over  for  a  short 
time  for  the  purpose  of  making  arrangements 
for  his  children.  The  wife  then  served  him  with 
a  petition  for  the  restitution  of  conjugal  rights. 
The  court  refused  an  application  made  by  the 
husband  for  a  stay  of  proceedings  on  his  wife's 
petition  until  the  suit  in  India  had  been 
determined.  Thornton  v.  Tltornton,  11  P.  D. 
176  ;  65  L.  J.,  P.  40 ;  54  L.  T.  774 ;  34  W.  R.  509 
— C.A. 

Gross  Action  by  Defendant  in  Foreign  Country.] 
— In  an  action  of  damage  in  personam  by  the 
owners  of  the  ship  G.  against  the  owners  of  the 
ship  P.,  it  appeared  that  a  cause  of  damage  in 
rem  relating  to  the  same  collision  had,  prior  to 
the  proceedings  in  this  court,  been  instituted  by 
the  owners  of  the  P.  against  the  G.  in  a  Vice- 
Admiralty  Court  abroad,  and  was  then  pending. 
The  court,  on  the  application  of  the  owners  of 
the  ship  P.,  stayed  the  proceedings  in  this  court 
until  after  the  hearing  of  the  cause  in  the  Vice- 
Admiralty  Court  abroad.  The  Peshuwur,  8  P.  D. 
32  ;  52  L.  J.,  P.  30 ;  48  L.  T.  796  ;  31  W.  R. 
660  ;  6  Asp.  M.  C.  89— Sir  R.  Phillimore. 

B.,  resident  in  San  Francisco,  brought  an 
action  against  C.  in  England  alleging  that  C. 
had  been  B.'s  agent  to  purchase  for  him  goods 
in  England  ;  that  B.  had  recently  discovered 
that  C.  had  in  the  accounts  rendered  charged 
more  for  the  goods  than  he  had  paid  for  them, 
and  asking  for  an  account  against  C.  as  agent. 
C,  delivered  a  defence  in  which  he  denied  agency, 
alleged  that  he  had  as  principal  sold  the  goods 
to  B.,  insisted  on  the  accounts  rendered  as 
settled  accounts,  and  alleged  that  a  large  balance 
was  due.  C.  then  commenced  an  action  in  San 
Francisco  against  B.  to  recover  the  amount  which 
he  so  alleged  to  be  due.  B.  moved  to  restrain 
this  action : — Held,  that  the  action  ought  not  to  be 
restrained,  for  that  there  was  no  prima  facie 
inference  that  the  bringing  the  action  abroad, 
during  the  pendency  of  an  action  in  England  in 
which  the  matters  in  dispute  could  be  determined, 
was  vexatious,  since  the  course  of  procedure  in 
San  Francisco  might  be  such  as  to  give  advantages 


to  C.  of  which  he  was  entitled  to  avail  himself, 
and  that  the  burden  lay  on  B.  to  prove  that  C.'s 
action  was  vexatious,  which  he  had  failed  to  do. 
Hyman  v.  Helm,  24  Ch.  D.  531  ;  49  L.  T.  376 ; 
32  W.  R.  258— C.  A. 

Action  in  Colony  and  in  England— Counter- 
claim.]— B.,  of  London,  and  M.  and  C,  of 
Honduras,  carried  on  business  in  partnership 
at  Honduras  as  G.  &  Co.  B.  and  N.  carried  on 
business  in  partnership  in  London  under  tbe 
same  name.  The  Honduras  firm  employed  the 
London  firm  as  their  agents  under  an  agree- 
ment by  which  B.'s  share  in  the  profits  of  the 
Honduras  firm  was  to  be  brought  into  account  as 
between  the  two  firms  to  the  credit  of  the  English 
firm.  The  Honduras  partnership  was  dissolved, 
and  B.  obtained  a  decree  in  Honduras  for  taking 
the  partnership  accounts.  Before  those  accounts 
had  been  fully  taken,  M.  and  C.  brought  this 
action  in  England  against  the  London  firm  for  an 
account  of  the  dealings  between  the  two  firms, 
alleging  the  defendants  to  have  made  improper 
profits  in  their  agency.  The  defendants  denied 
having  made  improper  profits,  and  by  counter- 
claim claimed  to  have  the  accounts  of  the 
Honduras  firm  taken.  The  counter-claim  was 
ordered  to  be  struck  out : — Held,  that  though  if 
M.  and  C.  had  not  brought  this  action,  B.  would 
not,  after  obtaining  a  decree  in  Honduras,  hare 
been  allowed  to  carry  on  another  action  here 
for  the  same  purpose,  still  as  the  two  actions 
were  so  closely  connected  that  neither  of  them 
could  be  finally  wound  up  independently  of  the 
other,  B.  ought  not  to  be  prevented  from  pro- 
ceeding with  his  counter-claim  so  as  to  be  in 
a  position  to  ask  at  the  trial  of  this  action  far 
such  a  decree  as  might  be  right,  having  regard 
to  the  then  position  of  the  Honduras  action; 
and  that  on  N.'s  undertaking  to  be  bound  by 
the  proceedings  in  the  Honduras  action,  the 
order  must  be  discharged.  Mutrie  v.  Binnry,  36 
Ch.  D.  614  ;  56  L.  T.  455  ;  36  W.  R.  131— C.  A 

Power  of  Court  to  look  at  Proceedings  fat 
Action  Abroad.] — H.,  a  lessee  of  estates  in  Ire- 
land, claimed  the  exclusive  right  of  shooting. 
S.,  the  lessor,  claimed  that  on  the  true  con- 
struction of  the  lease  such  right  was  reserved 
to  him.  On  the  19th  Sept,  1883,  H.  com- 
menced an  action  in  the  Chancery  Division  in 
England  to  restrain  S.  from  interfering  with  his 
alleged  rights, and, in  the  alternative, for  rectifica- 
tion of  tbe  lease.  On  the  22nd  Sept.,  1883, 8. 
commenced  a  common  law  action  in  Ireland 
against  H.  for  trespass.  The  Irish  action  was 
heard  first,  resulting  in  a  verdict  (sustained  bya 
divisional  court)  for  S.,  with  6d.  damages.  H. 
had  also  raised  by  his  defence  a  plea  for  rectifi- 
cation of  the  lease,  but  it  did  not  appear  clearly 
that  this  question  was  ever  submitted  to  the  jury. 
Upon  a  summons  in  the  English  action  raising 
the  question  of  res  judicata: — Held,  that  the 
pleadings  and  j  udgments  in  the  Irish  action  might 
oe  put  in  evidence,  having  been  only  very  briefly 
referred  to  by  S.  in  his  defence,  as  amended 
with  leave,  upon  the  analogy  of  the  old  practice, 
which  permitted  a  judge  in  similar  cases  to  refer 
to  a  master  for  a  report  as  to  the  nature  of  the 
questions  raised  and  decided  in  another  action. 
Upon  looking  into  such  proceedings  the  court 
was  not  satisfied  that  the  question  of  rectifica- 
tion was  ever  really  decided  against  H.,  and 
accordingly  refused  to  stay  the  present  action  on 


1438 


PRACTICE    AND    PLEADING. 


1484 


that  ground.    Houston,  v.  Sligo  (Marquis),  29 
Ch.  D.  448 ;  62  L.  T.  96— Pearson,  J. 

Action  in  another  Branch  of  Conrt.] — An 
action  having  been  brought  in  the  Common 
Pleas  Division  against  the  defendant  as  executor 
de  son  tort  of  B.,  deceased,  the  defendant 
obtained  letters  of  administration  to  B.,  and 
then  issued  a  writ  in  the  Chancery  Division  for 
administration  of  the  real  and  personal  estate  of 
the  deceased,  and  before  obtaining  a  decree  the 
defendant  moved  the  Common  Pleas  Division 
for  an  order  to  restrain  the  plaintiff's  action,  and 
obtained  an  order  staying  the  proceedings  pending 
the  administration  suit : — Held,  that  the  court 
had  no  jurisdiction  to  restrain  the  plaintiff's 
action,  as  no  decree  for  administration  nad  been 
obtained.  ffiggins  v.  Browne,  16  L.  Rw,  Ir.  173 
-C.A. 

Section  27,  sub-s.  5  of  the  Judicature  (Ireland) 
Act,  1877,  only  gives  the  court  power  to  stay 
proceedings  in  cases  where  the  Court  of  Chan- 
cery, before  the  act,  could  have  restrained  the 
action.     lb.— Per  Sir  E.  Sullivan,  C. 


ii.  Non-payment  of  Costs. 

Of  Former  Action — Second  Aotion  for  same 
latter.] — A  bill  for  an  account  of  the  personal 
estate  of  W.  J.,  an  intestate,  was  filed  by  the 
legal  personal  representative  of  E.  B.  against  the 
personal  representatives  of  the  deceased  adminis- 
trators of  W.  J.,  alleging  that  the  administrators 
of  W.  J.  had  got  in  the  greater  part  of  the  estate, 
and  that  E.  B.  was  the  sole  next  of  kin.  The 
rait  was  revived  in  1877  by  M.,  a  subsequent 
personal  representative  of  E.  B.,  against  X.  and 
VM  as  representatives  of  one  of  the  administra- 
tors, and  Z.,  as  representative  of  the  others,  and 
was  ultimately  dismissed  in  1880  with  costs,  as 
against  all  three  defendants,  on  the  ground  that 
the  title  of  R  B.,  as  next  of  kin,  was  not  proved. 
After  this  M.  took  out  administration  de  bonis 
non  to  W.  J.,  and  brought  his  action  as  such 
administrator  against  Z.  for  an  account  of  the 
personal  estate  of  W.  J.  received  by  the  adminis- 
trators whom  Z.  represented: — Held,  that  al- 
though M.  formerly  sued  as  personal  represen- 
tative of  E.  B.,  and  now  sued  as  personal  repre- 
sentative of  W.  J.,  the  action  was  in  substance  a 
second  proceeding  for  the  same  matter  under  the 
same  alleged  title,  and  that  proceedings  must  be 
stayed  until  the  costs  of  the  old  suit  had  been 
paid.  Martin  v.  Beauchamp  (Earl),  25  Ch.  D. 
12 ;  53  L.  J.,  Ch.  1160 ;  49  1.  T.  334  ;  32  W.  R. 
17— C.  A. 

The  next  of  kin  of  a  testator  instituted  a  suit 
for  administration  with  a  will  annexed  bearing 
date  1868,  of  which  the  sole  executor  and  uni- 
versal legatee  was  the  testator's  wife,  who  pre- 
deceased him.  In  opposition,  parties  claiming 
to  be  legatees  set  up  the  contents  of  a  later  will 
alleged  to  have  been  executed  in  1877  or  1878, 
but  which  could  not  be  found.  The  Court  of 
Appeal  decided  that  there  was  not  sufficient 
evidence  of  the  contents  of  the  second  will,  and 
their  decision  was  affirmed  in  the  House  of 
Lords.  A  fresh  suit  for  probate  of  the  second 
will  was  then  commenced  by  the  executor  of  the 
testator  and  residuary  legatee  of  the  will  of 
1877-8,  who  had  been  the  confidential  solicitor 
of  the  deceased,  and  who  had  acted  as  solicitor 
for  the  legatees  all  through  the  litigation.    This 


suit  was  founded  upon  fresh  evidence  of  the  con- 
tents and  execution  of  the  second  will : — Held, 
that  although  the  plaintiff  had  been  privy  to  the 
prior  action,  an  application  to  stay  the  proceed- 
ings generally  could  not  be  granted,  but  that  the 
proceedings  ought  to  be  stayed  until  the  costs  of 
the  plaintiffs  in  the  prior  action  had  been  paid. 
Peters  v.  Tilly,  11  P.  D.  145 ;  55  L.  J.,  P.  75 ; 
35  W.  R.  183— Butt,  J. 

Interlocutory  Costs.]— Although  mere  non- 
payment of  the  costs  of  an  interlocutory  motion, 
which  a  plaintiff  has  been  ordered  to  pay,  is  not 
per  se  sufficient  ground  for  ordering  further  pro- 
ceedings in  his  action  to  be  stayed  in  cases  where 
the  party  is  acting  vexatiously  in  withholding 
payment  of  costs,  there  is  jurisdiction,  upon 
application  by  summons,  to  stay  proceedings 
until  he  has  complied  with  the  order  for  pay- 
ment. Neal,  In  re  (31  Ch.  D.  437),  and  Youngs, 
In  re  (31  Ch.  D.  239),  questioned.  Wiekham, 
In  re,  Marony  v.  Taylor,  35  Ch.  D.  272  ;  6& 
L.  J.,  Ch.  748  ;  57  L.  T.  468 ;  35  W.  R.  525— 
C.  A. 

Pending  a  summons  before  North,  J.,  to  whose 
court  the  action  was  attached,  to  stay  all  further 
proceedings  until  the  plaintiff  should  have  paid 
the  costs  which  he  had  been  ordered  to  pay,  the 
action,  at  the  plaintiff's  instance,  came  on  for 
trial  before  Kekewich,  J.,  to  whom  it  had  been 
transferred  for  trial  only.  Defendant  having 
taken  the  preliminary  objection  that  the  costs  in 
question  had  not  been  paid,  Kekewich,  J.,  ordered 
the  trial  to  stand  over  generally,  with  liberty  to 
plaintiff  to  restore  the  action  to  the  paper  on 
payment  of  the  costs : — Held,  that  the  order 
ought  to  have  postponed  the  trial,  not  until  the 
costs  should  have  been  paid,  but  until  the  sum- 
mons before  North,  J.,  should  have  been  dis- 
posed of : — Held,  also,  that  North,  J.,  had  in  the 
circumstances,  rightly  upon  the  summons  ordered 
proceedings  to  be  stayed  until  the  plaintiff  had 
complied  with  the  order  for  payment  of  costs. 
lb. 

Where  a  plaintiff  is  in  contempt  through 
breach  of  an  order  for  payment  of  the  costs  of 
an  application  in  the  action,  the  court  will,  at 
the  instance  of  the  defendant,  upon  the  action 
being  called  on  for  trial,  stay  all  further  pro- 
ceedings until  the  plaintiff  has  cleared  his  con- 
tempt. Neal,  In  re,  Weston  v.  Neal,  31  Ch.  D. 
437  ;  55  L.  J.,  Ch.  376  ;  54  L.  T.  68  ;  34  W.  R. 
319— V.-C.  B. 

Where  a  party  prosecuting  proceedings  is  in 
contempt  for  not  paying  costs,  the  proceedings 
will  be  stayed.  Youngs,  In  re,  Dog  get  t  v* 
Revett,  31  Ch.  D.  239  ;  55  L.  J.f  Ch.  371 ;  54 
L.  T.50  ;  34  W.  R.  290— Pearson,  J. 

When  Applioation  to  be  Made.] — An 

application  for  payment  prior  to  the  case  being 
called  on  is  not  necessary.  Neal,  In  re,  Weston 
y.  Neal,  supra. 


ill  Frivolous  and  Vexatious  Actions. 

Innate  power  of  Court] — The  Queen's  Bench 
Division  has  an  innate  and  inherent  authority  to 
dismiss  or  stay  a  frivolous  or  a  vexatious  action. 
This  authority  is  distinct  from  the  authority 
conferred  on  it  by  Ord.  XXV.  r.  4,  which  is 
limited  to    pleadings  which   are    frivolous   or 


I486 


PRACTICE    AND    PLEADING. 


1436 


vexatious  or  otherwise  objectionable.  Blair  v. 
Cordner,  36  W.  R.  64— D. 

The  Probate  Division  has,  apart  from  Ord. 
XXV.  r.  4,  an  inherent  jurisdiction,  in  common 
with  other  courts,  to  stay  proceedings  which  are 
frivolous  and  vexations,  and  an  abase  of  the 
process  of  the  court.  Willis  v.  Beauchamp 
(Earl),  11  P.  D.  59  ;  55  L.  J.,  P.  17  ;  54  L.  T. 
185  ;  34  W.  R.  357— C.  A. 

An  action  was  brought  to  obtain  revocation  of 
letters  of  administration  granted  in  1798,  the 
plaintiff  claiming  to  represent  the  next  of  kin 
of  the  intestate,  and  the  defendants  being  the 
representatives  of  the  deceased  administrator  : — 
Held,  that,  having  regard  to  the  lapse  of  time, 
the  fact  that  the  defendants  did  not  and  could 
not  succeed  to  the  administration  sought  to  be 
revoked,  and  the  other  circumstances  of  the  case, 
the  action  was  frivolous  and  vexatious,  and  must 
be  dismissed.    lb. 


Statute   of  Limitations — Striking   out 


Statement  of  Claim.]— The  plaintiff  sued  in  the 
Chancery  Division  to  recover  estates  as  heir-at- 
law  of  J.  L.,  who  died  intestate,  seised  in  fee  and 
in  possession  thereof,  in  1 81 6.  The  plaintiff  alleged 
that  on  J.  L.'s  death  J .  T.  wrongfully  took  posses- 
sion ;  that  the  solicitors  of  J.  L.  knew  the  address 
of  the  heir-at-law,  who  resided  in  America,  and 
were  about  to  communicate  with  him,  but  that 
J.  T.  persuaded  them  not  to  do  so,  and  to  deliver 
to  him  the  deeds  and  evidence  showing  J.  L.'s 
title,  including  a  deed  of  compromise  by  virtue  of 
which  he  had  obtained  possession  ;  that  by  reason 
of  the  premises  the  heir  and  the  persons  claiming 
under  him  had  remained  ignorant  of  their  title 
till  1886,  and  that  the  fraud  could  not  with 
reasonable  diligence  have  been  discovered  sooner. 
The    plaintiff    had    previously  commenced  an 
action  in  the  Queen's  Bench  Division  to  recover 
the   same  estates,  the  statement  of  claim  in 
which  merely  alleged  his  title  as  heir-at-law, 
but  contained  no  allegations  of  fraud  to  take 
the  case  out  of  the  Statute  of  Limitations.    The 
defendants  applied  to  strike  it  out,  as  showing 
no  cause  of  action.    The  plaintiff  then,  after 
the  regular  time  for  amendment,  applied  for 
leave   to   amend,    and    exhibited   a   proposed 
amended  statement  of  claim  containing  allega- 
tions of  concealed  fraud.    The  Queen's  Bench 
Division  refused  leave  to  amend,  and  struck  out 
the  statement  of  claim  and  dismissed  the  action 
on  the  ground  that  no  cause  of   action  was 
shown.      The  plaintiff   then    commenced   this 
action  in  the  Chancery  Division,  the  allegations 
of  fraud  in  the  statement  of  claim  being  nearly 
the  same  as  those  in  the  proposed  amendments 
in  the  Queen's  Bench    Division,  but  meeting 
some  of  the  points  in  which  those  amendments 
had  been  observed  upon  by  the  judges  as  defec- 
tive.   The  defendants  moved  that  the  statement 
of  claim  might  be  struck  out  and  the  action 
dismissed : — The  court  held  that  the  inducing 
the  solicitors  to  deliver  the  deeds  to  J.  T.  was  a 
concealed   fraud,    which    would    prevent    the 
operation  of  the  statute,  and  that,  the  court 
not  being  satisfied  on  the  evidence  that  the 
allegations  of  fraud  were  fictitious,  the  action 
must  be  allowed  to  proceed ;  but  held  by  the 
Court  of  Appeal  that,  independently   of  the 
general  orders,  the  court  has  jurisdiction  to  stay 
vexatious  actions ;  that  the  conclusion  to  be 
drawn  from  the  whole  of  the  materials  before 
the  court  was  that  the  allegations  of  fraud  were 


made  without  any  reasonable  ground,  and  that 
the  statement  of  claim,  assuming  its  allegations 
if  true  to  show  a  cause  of  action,  ought  to  be 
struck  out  and  the  action  dismissed  as  an  abuse 
of  the  process  of  tbe  court.  Lawrence  v.  Norreyt 
(Lord),  39  Ch.  D.  213  ;  59  L.  T.  703— C.  A. 


iv.  Abuse  of  Process. 

Aotion  for  Trivial  Amount.]— The  court  re- 
fused to  set  aside,  as  an  abuse  of  the  process  of 
the  court,  a  writ  of  summons  for  SI.  11*.,  doe 
for  goods  sold  : — Semble,  an  action  for  any  sum 
not  less  than  40*.  is  not  beneath  the  dignity  of 
the  court.  Bannay  v.  Graham,  12  L.  IL,  Ir. 
413— Q.  B.  D. 

Action  instituted  without  Authority.]— The 
ground  on  which  the  court  in  a  proceeding 
before  itself  will  stay  proceedings  in  an  action 
instituted  without  authority  in  the  name  of  ft 
third  party  is  that  it  has  jurisdiction  to  prevent 
an  abuse  of  its  own  process.  London  and 
Blackmail  Railway  v.  Cross,  31  Ch.  D.  354: 
55  L.  J.,  Ch.  313  ;  54  L.  T.  309 ;  34  W.  R.  201- 
C.A. 

v.  In  other  Oases. 

Executors,  Aotions  by— Probate  of  Will]— A 
testatrix,  having  indorsed  and  delivered  a  bill  of 
exchange  to  her  bankers  for  collection  at  matu- 
rity, died  before  the  bill  became  due,  and  her 
executors,  before  probate  of  the  will  was  granted, 
sued  the  bankers  for  a  return  of  the  bill  or  its 
value.  The  defendants  were  always  willing  to 
pay  over  the  proceeds  of  the  bill  to  the  plaintiffs 
upon  production  of  probate  .-—Held,  that  all 
proceedings  in  the  action  ought  to  be  stayed  until 
the  plaintiffs  obtained  probate.  Webb  v.  Adkins 
(14  C.  B.  401)  followed.  Tarn  v.  Qmmereml 
Banking  Company  of  Sydney,  12  Q.  B.  D.  294  ; 
50  L.  T.  365  ;  32  W.  B.  492— D.  See  also  cases 
ante,  cols.  798,  799. 

On  Bankruptcy.  ]— See  Bankruptcy^  VIII^l 

On  Winding  up  of  Companies.] — See  Compact, 
XI.  4. 

Separate  Aotions  against  several  Defendant! 
—Stay  pending  Trial  of  one  Action.]— See 
Colled ge  v.  Pike,  post,  col.  1444. 

Pending  Appeal  to  House  of  Lords  or  Court  of 

Appeal.]— See  Appeal,  I.,  II.  7. 


e.  Particulars. 
i.  In  what  Cases. 

Definite  Sum  Claimed — Not  Account  morel?.] 
— Where  a  plaintiff  claims  to  recover  a  definite 
sum  made  up  of  a  number  of  items  he  will  be 
ordered  to  give  particulars  of  demand,  though  be 
will  not  be  ordered  to  do  so  if  he  only  claims  an 
account.  Blackie  v.  Osmaston,  28  Ch.  D.  119; 
54  L.  J.,  Ch.  473  ;  52  L.  T.  6  ;  33  W.  B.  168- 
C.A. 

The  plaintiffs  by  their  statement  of  claim 
alleged  that  they  and  their  testator  had  paid 
sums  of  money  under  a  contract  of  suretyship 
under  which  the  defendant   was  also  liable, 


1487 


PRACTICE    AND    PLEADING. 


1488 


and  that,  after  deducting  the  contributions  re- 
ceived from  other  quarters,  the  balance  paid  by 
them  was  16,2332. ;  that  the  defendant  had  paid 
nothing,  and  was  liable  to  pay  to  the  plaintiffs 
one  half  of  this  balance,  and  the  plaintiffs 
claimed  payment  of  8,1162.  The  defendant,  be. 
fore  patting  in  his  defence,  applied  for  an  order 
that  the  plaintiffs  might  give  particulars  of  the 
sums  making  up  the  16,2332. : — Held,  that  as  the 
plaintiffs  did  not  ask  merely  for  an  account,  but 
claimed  payment  of  a  definite  sum,  they  must 
give  particulars  of  demand.    lb. 

Claim  for  Account — Partioulari  of  Baceipts.] 
—It  was  alleged  by  counter-claim  to  a  redemp- 
tion action  that  the  mortgage  comprised:  (1) 
certain  commission  ;  (2)  a  sum  also  secured  by 
bills  of  exchange  ;  (3)  a  sum  due  on  an  open 
account,  and  that  the  mortgagee  had  received 
divers  sums  in  respect  of  the  bills  of  exchange 
and  on  the  open  account.  The  mortgagee 
counterclaimed  for  an  account  and  foreclosure 
or  sale.  Particulars  of  the  sums  received  by 
him  on  the  bills  of  exchange  and  the  open 
account  were  ordered  to  be  given.  Kemp  v. 
Qddberg,  36  Ch.  D.  505  ;  56  L.  T.  736 ;  36  W.  R. 
278— North,  J. 

Payment   into  Court — Apportionment] — See 
ante,  col.  1426. 

false  Imprisonment— Reasonable  and  Proba- 
Ue  Cause.] — The  plaintiff  sued  the  defendant 
for  having  wrongfully  made  and  signed  an  order, 
stating  that  the  plaintiff  was  a  person  of  un- 
sound mind,  in  consequence  of  which  the 
friaintiff  had  been  assaulted  and  removed  to  a 
unatic  asylum  and  kept  there  against  his  will ; 
and  he  also  claimed  damages  for  the  libel  con- 
tained in  such  order.  The  defendant,  in  his 
defence,  pleaded  (inter  alia)  reasonable  and 
probable  cause  for  believing  the  plaintiff  to  have 
been  a  person  of  unsound  mind,  and  fit  to  be 
detained  under  care  and  treatment : — Held,  that 
the  allegation  of  reasonable  and  probable  cause 
was  an  immaterial  allegation,  and  that  the  defen- 
dant could  not  be  ordered  to  give  particulars 
thereof.     Care  v.  Torre,  54  L.  T.  516— C.  A. 

Libel — Publication.] — In  an  action  for  libel 
brought  bv  the  plaintiff  as  director  of  a  company 
against   the  defendants,  a  committee   of    the 
shareholders  in  the  company,  for  statements  con- 
tained in  a  report  drawn  up,  and  alleged  to  be 
maliciously  published  by  them,  the  defendants 
had  obtained,  after  the  pleadings  had  been  closed, 
an  order  for  particulars  of  the  occasion  of  any 
publication  by  them  to  persons  other  than  share- 
holders : — Held,  that  the  defendants  were  not 
entitled  to  such  particulars,  since  the  publica- 
tion complained  of  clearly  included  publication 
to  others  than  shareholders,  though  not  expressly 
so  stated,  and  sufficiently  complied  with  the 
requirements  of  pleading  as  laid  down  under 
Ord.  XIX.  r.  4.    Moselle  v.  Buchanan  (16  Q.  B. 
D.  666)    distinguished,  as   applicable   only  to 
actions  for  slander.      Gouraud  v.  Fitzgerald, 
37  W.  R.  bb—D.    Affirmed  37  W.  R.  265— C.  A. 

Defence  that  Libel  true  in  Substance 


In  Fact— Vewipaper.] —  Defendant  pub- 
lished articles  alleging  that  the  plaintiff,  who 
was  governor  of  Mauritius,  had  been  charged 
by  members  of  the  council  with  sending  to  the 


colonial  office  garbled  reports  of  their  speeches. 
The  articles  were  also  alleged  by  the  plaintiff  to 
impute  that  he  had  in  fact  transmitted  such 
garbled  accounts.  An  action  for  libel  having 
been  brought,  the  defendant  pleaded  that  the 
alleged  libels  were  true  in  substance  and  in  fact : 
— Held,  that  the  plaintiff  was  entitled  to  further 
and  better  particulars,  it  not  being  clear  whether 
the  defence  meant  that  what  was  charged  against 
the  plaintiff  had  been  truly  reported,  or  that 
what  was  reported  to  have  been  charged  was  in 
fact  true.  Mennessy  v.  Wright,  57  L.  J.,  Q.  B. 
594  ;  59  L.  T.  795  ;  86  W.  R.  878— C.  A. 

Blander— Karnes  of  Persons  to  whom  Slander 
uttered.] — In  an  action  for  slander  the  court 
ordered  the  plaintiff,  upon  a  sunimons  taken  out 
by  the  defendant  before  delivery  of  the  defence, 
to  give  particulars  of  the  names  of  the  persons 
to  whom  the  alleged  slander  was  uttered.  RotelU 
v.  Buchanan,  16  Q.  B.  D.  656  ;  55  L.  J.,  Q.  B. 
376  ;  34  W.  R.  488— D. 

A  statement  of  claim  alleged  that  T.,  "  at  the 
request  and  by  the  direction  of  the  defendant, 
falsely  and  maliciously  spoke  and  published  of 
and  concerning  the  plaintiff  "  certain  slanderous 
words,  which  were  set  out: — Held,  that  the 
defendant  was  entitled  to  particulars  of  the 
persons  to  whom  the  words  were  uttered.  Brad- 
bury v.  Cooper,  12  Q.  B.  D.  94  ;  53  L.  J.,  Q.  B. 
558  ;  32  W.  R.  32— D. 

When  particulars  are  required  to  be  given  of 
the  names  of  persons  who  may  have  heard  the 
defendant  utter  certain  slanders  in  a  public 
room,  an  order  that  the  plaintiff  is  to  deliver 
"  the  best  particulars  he  can  give  of  the  persons 
present"  when  the  slanders  were  uttered  is 
correct,  and  will  not  be  varied  by  the  court. 
Williams  v.  llamtdale,  36  W.  R.  125— D. 

Highway— Acts  of  Dedication.] — In  an  action 
to  restrain  trespass  on  a  road,  the  defendants 
pleaded  that  it  was  a  highway,  and  were  ordered 
to  amend  their  defence  so  as  to  show  the  mode 
or  title  in  or  under  which  they  claimed  that  the 
road  had  become  a  highway.  The  defendants 
amended  by  alleging  that  the  road  had  for  many 
years  been  used  by  the  public  as  of  right  and 
was  a  highway,  having  been  dedicated  to  the 
public  by  the  plaintiff  and  her  predecessors  in 
title  or  some  of  them.  An  order  was  then  made 
that  the  defendants  should  deliver  to  the  plaintiff 
full  particulars  of  the  nature  of  all  acts  of  dedi- 
cation relied  on  by  the  defendants,  and  if  the 
defendants  claimed  by  acts  of  dedication  other 
than  permissive  user,  particulars  of  such  acts  of 
dedication,  with  dates,  and  by  whom  made.  The 
defendants  appealed: — Held,  that  under  the 
present  system  the  court  will  oblige  a  party  to 
give  such  information  as  to  the  nature  of  his 
case  as  is  requisite  to  prevent  his  opponent  from 
being  taken  by  surprise  at  the  trial,  but  that  the 
order  made  went  too  far,  and  that  the  proper 
order  was  that  if  the  defendants  relied  on  any 
specific  acts  of  dedication,  or  specific  declarations 
of  intention  to  dedicate,  whether  alone  or  jointly 
with  evidence  of  user,  they  should  set  forth  the 
nature  and  dates  of  those  acts  or  declarations, 
and  the  names  of  the  persons  by  whom  they 
were  done  or  made.  Spedding  v.  Fittpatrich, 
38  Ch.  D.  410  ;  58  L.  J.,  Ch.  139  ;  59  L.  T.  492  ; 
37  W.  R.  20— C.  A. 

Infringement  of  Trade  Mark— Particulars  of 


1489 


PEACTICE    AND    PLEADING, 


1440 


Names  of  Persons  Deceived.] — In  an  action  to 
restrain  infringement  of  trade  mark,  the  plaintiff 
alleged,  by  his  statement  of  claim,  that  "  divers 
persons  "  had  been  thereby  induced  to  purchase 
the  defendant's  goods  as  the  plaintiff's.  After 
defence,  the  defendant  took  out  a  summons  that 
plaintiff  might  give  the  names  of  the  persons  so 
induced  to  purchase : — Held,  that  defendant- 
was  entitled  to  the  order.  Humphries  v.  Taylor 
Drug  Company,  39  Ch.  D.  693  ;  59  L.  T.  177  ;  37 
W.  R.  192— Kekewich,  J. 

Breaches  of  Trust— General  Allegations.]— 

Where  in  an  administration  action,  the  plaintiff 
alleged  that  the  defendant,  one  of  the  executors, 
in  various  ways  had  misapplied  parts  of  the 
rents  and  profits  of  the  leaseholds,  and  thereby 
injured  the  plaintiff  and  committed  breaches  of 
trust,  and  the  plaintiff  specified  one  misapplica- 
tion of  a  sum  of  25/.  : — On  summons  by  the 
defendant,  the  court  made  an  order  striking  out 
the  general  allegations  unless  the  plaintiff  fur- 
nished particulars  within  seven  days.  Anstice, 
In  re,  Anstice  v.  Hibell,  54  L.  J.,  Ch.  1104  ;  62 
L.  T.  672  ;  33  W.  R.  657— V.-C.  B. 

Alleged  False  Entries  in  Books.]  — A  com- 
pany which  had  bought  the  business  of  the 
defendants,  and  employed  them  to  manage  it, 
brought  an  action  against  them  for  an  account 
of  what  was  due  from  them  under  a  guarantee 
that  the  profits  should  amount  to  a  certain  yearly 
sum.  The  statement  of  claim  alleged  that  the 
defendants  had  made  false  entries  in  the  books 
for  the  purpose  of  making  their  working  ex- 
penses appear  less  than  they  had  been,  and  so 
relieving  themselves  of  liability  under  the 
guarantee.  The  defendants  obtained  an  order 
for  the  plaintiffs  to  furnish  particulars  of  the 
false  entries  alleged.  The  plaintiffs  set  out  a 
list  of  the  items  complained  of  transcribed  from 
the  books,  with  references  to  the  parts  of  the 
books  where  they  were  found.  The  defendants 
applied  for  further  and  better  particulars  :— 
Held,  that  as  an  entry  might  be  wrong  in 
different  ways,  the  mere  specification  of  the 
entries  complained  of  did  not  give  the  defen- 
dants sufficient  information  of  the  nature  of  the 
case  they  had  to  meet,  and  that  the  plaintiffs 
must  6tate  shortly  as  to  each  item  the  general 
nature  of  the  objection  they  made  to  it.  New- 
port Slipway  Dry  Dock  Company  v.  Paynter, 
34  Ch.  D.  88  ;  56  L.  J.,  Ch.  1021  ;  55  L.  T.  711 
— C.A. 

Particulars  in  Probate  Action.  ] — See  Will. 


ii.  Practioe. 

At  what  Period  ordered — After  Defenoe  — 
Waiver  of  Right  to.]— The  statement  of  claim, 
in  an  action  by  a  principal  against  his  stock- 
brokers to  open  settled  accounts,  alleged  fraud, 
and  that  the  plaintiff  was  unable  to  give  par- 
ticulars before  discovery.  An  application  by  the 
defendants  for  particulars  was  ordered  to  stand 
over  till  after  a  defence  had  been  delivered.  A 
defendant  by  delivering  a  defence  does  not  waive 
his  right  to  particulars.  Sachs  v.  Speilman,  37 
Ch.  D.  295  ;  57  L.  JM  Ch.  658  ;  58  L.  T.  102  ;  36 
W.  R.  498— North,  J. 


Before   Defence.]  —  See  Roselle  v.  Bu- 


chanan, supra. 


After  Discovery.  J — Where  the  defendant 

has  the  means  of  knowing  the  facts  in  dispute 
and  the  plaintiff  has  not,  the  defendant  is  not 
entitled  to  particulars  until  after  he  has  given 
discovery.  Millar  v.  Harper,  38  Oh.  D.  110 ; 
57  L.  J.,  Ch.  1091  ;  68  L.  T.  698 ;  36  W.  B.  4H 
—C.A. 

The  plaintiffs,  who  were  the  executors  of  a 
married  woman,  sued  her  husband  to  establish 
that  a  quantity  of  the  furniture  and  other 
chattels  comprised  in  an  inventory  which  had 
been  taken  of  the  goods  in  the  defendant's 
house,  belonged  to  the  separate  estate  of  the 
wife.  The  husband  applied  for  particulars  of 
demand  showing  which  chattels  they  claimed: 
— Held,  that  the  application  ought  to  atand  orer 
till  the  husband  had  made  an  affidavit  as  to 
which  of  the  articles  belonged  to  the  wife.   /*. 

Of  Fraud  —  Application  for  Production  tf 
Documents.]  —  See  Whyte  v.  Ahrens,  post,  ooL 
U52. 

Effect  of,  on  Discovery.]  —  Ord.  XLX.  r. 

6,  which  requires  that  where  the  party  pleading 
relies  upon  any  misrepresentation  or  fraud,  he 
shall  give  particulars  of  it  in  his  pleading,  is  a 
rule  of  pleading  only  ;  and  the  generality  of  an 
allegation  of  fraud  does  not  prevent  discovery  » 
as  to  enable  the  plaintiff  to  plead  the  frand  in 
detail.  Leitch  v.  Abbott,  31  Ch.  D.  374 ;  65  L 
J.,  Ch.  460 ;  54  L.  T.  258  ;  34  W.  R.  506 ;  W  J. 
P.  441— Per  Bowen,  L.  J. 

Amendment  of  —  Terms.] — In  an  action  on 
a  policy  of  marine  assurance,  the  defenoe  was 
that  the  loss  was  not  caused  by  perils  of  the  sea, 
and  that  the  subject-matter  of  the  policy,  to* 
two  lighters  in  tow  of  a  tug,  was  unseaworthy. 
Particulars  of   the    unseaworthiness  were  de- 
livered, stating  that  the  lighters  were  of  to* 
proper  construction  for  the  purpose  of  being 
towed.    Evidence  as  to  the  lighters  was  taken 
abroad   on    commission,    and    questions  were 
asked  as  to  the  tug.    Subsequently,  at  a  time 
when  the  evidence  of  the  captain  of  the  tag 
could  no  longer  be  obtained,  the  defendant  ap- 
plied for  leave  to  amend  the  particulars,  so  as  to 
state  that  the  tug  was  of  insufficient  po«tr, 
whereby  the  subject-matter  of  the  policy  was 
rendered  unseaworthy :— Held,  that  tne  amend- 
ment should  be  allowed  on  terms,  as  no  iDJarr 
would  be  caused  to  the  plaintiffs  for  which 
they  could  not  be  compensated  by  costs.  CUn- 
peae  v.  Commercial  union  Association,  32  W.B. 
261— C.  A. 


d.  Secubity  fob  Costs. 
i.  Person*  resident  Abroad. 

Plaintiff  a  Seafaring  Man— No  Fixed  BmU 
denoe.] — A  seafaring  man,  whose  family  had  a 
permanent  residence  within  the  jurisdiction,  and 
who  resides  with  them  on  his  return  from 
abroad,  but  who  has  himself  no  fixed  residence, 
will  be  ordered  to  give  security  for  the  costs  of 
an  action  brought  by  him.  Martin  v.  BmsssU. 
21  L.  R.,  Ir.  196— V.-C. 

One  of  several  Plaintiffs  earning  within  frrit* 
diction  before  Appeal.] — An  action  was  brought 
by  a  mercantile  firm,  all  the  members  of  which 
were  in  America,  against  a  firm  at  Manchester. 


r 


1441 


PRACTICE    AND    PLEADING. 


1442 


The  defendants  put  in  a  defence  and  counter- 
claim, and  then  applied  to  the  judge  for  an  order 
for  the  plaintiffs  to  give  security  for  costs.    The 
plaintiffs  filed  an  affidavit  stating  that  they  with 
other  persons  carried  on  business  at  Manchester, 
and  that  the  firm  there  had  assets  amounting  to 
2,0002.    The  judge  refused  the  application.    On 
the  appeal  the  plaintiffs  produced  an  affidavit 
stating  that  since  the  order  one  of  the  plaintiffs 
had  come  to   Manchester  for   the  purpose  of 
carrying  on  the  action  : — Held,  that  the  affidavit 
as  to  the  property  of  the  plaintiffs  in  England 
was  ambiguous  and  was  not  sufficient  to  support 
the  order  in  the  court  below.    But  held,  that  as 
one  of  the  plaintiffs  had  come  to  England  since 
the  order  was  made,  although  for  a  temporary 
purpose,  the  defendants  were  not  entitled  to 
security  for  costs,  and  therefore  the  order  must 
be  affirmed.    Redondo  v.  Chaytor  (4  Q.  B.  D. 
463)  followed.      Ebrard  v.  Gassier,  28  Ch.  D. 
232 ;  54  L.  J.,  Ch.  441  ;  52  L.  T.  63  ;  33  W.  R. 
287— C.  A. 

Petitioner— Solicitor's  Bill,  Order  to  Tax.]— 
A  person  resident  out  of  the  jurisdiction  pre- 
sented a  petition  for  taxation  of  a  solicitor's  bill 
of  costs ;  the  court  ordered  the  petitioner  to 
gire  security  for  the  costs  of  the  matter  and  for 
the  balance  alleged  to  be  due  to  the  solicitor. 
Cornwall,  In  rv,  15  L.  R.,  Ir.  144— M.  R. 

Plaintiff  Resident  in  England  — Aotion  in 

Ireland.] — Security  for  costs  may  be  required 
from  a  plaintiff  resident  in  England  or  Scotland. 
The  practice  of  the  Court  of  Chancery  in  this 
respect  is  not  affected  by  the  71st  section  of  the 
Supreme  Court  of  Judicature  Act  (Ireland),  1877. 
Xickolson  v.  Wood,  15  L.  R.,  Ir.  76— M.  R. 

Foreigner    Serving    Notice    of    Motion    in 

Aetion.]— The  plaintiff  obtained  an  injunction 
to  restrain  the  defendants  from  parting  with 
goods  alleged  to  bear  improperly  the  plaintiff 's 
trade-mark.  The  defendants,  who  were  ship- 
owners, had  no  interest  in  the  goods,  which  had 
only  been  put  in  their  hands  for  transmission. 
S.,  a  resident  in  America,  who  claimed  to  be 
owner  of  the  goods,  served  notice  of  motion  that 
he  might  be  at  liberty  to  reship  the  goods  to  a 
foreign  port,  and  that  if  necessary  he  might  be 
added  as  a  defendant  to  the  action  :  —Held,  that 
8.  most  give  security  for  the  costs  of  the  motion, 
for  that  whatever  his  position  as  to  costs 
ought  be  if  and  when  he  was  made  a  defendant, 
he  must  on  this  motion  be  treated  as  a  person 
resident  abroad,  coming  forward  to  enforce  a 
right,  and  stood  in  the  position  of  a  plaintiff. 
ApoMnarU  Company  v.  Wilson,  31  Ch.  D.  632  ; 
55  L.  J.,  Ch.  665  ;  54  L.  T.  478  ;  34  W.  R.  537 
-C.A. 

Counterclaim  —  Defendant  out  of  Jurisdic- 
tion.]—Where  a  defendant  residing  out  of  the 
jurisdiction  sets  up  a  counterclaim  which 
amounts  to  an  independent  action,  he  may  be 
ordered  to  give  security  to  the  plaintiffs  for  the 
costs  of  the  counterclaim.  Lake  v.  HaseUine,  55 
L.  J.,  Q.  B.  206— D. 

a  Where  a  claim  and  counterclaim  arise  out  of 
different  matters,  so  that  the  counterclaim  is 
really  in  the  nature  of  a  cross  action,  the  defen- 
dant, if  he  is  residing  out  of  the  jurisdiction, 


may  be  required  to  give  security  for  the  plain- 
tiff 's  costs  of  the  counterclaim,  and.  if  the  only 
dispute  remaining  arises  on  the  counterclaim,  it 
is  beyond  doubt  right  that  he  should  be  so  re- 
quired. Sykes  v.  Sanerdoti,  15  Q.  B.  D.  423  ;  54 
L.  J.,  Q.  B.  560  ;  53  L.  T.  418— C.  A. 


Security  to   Answer  —  foreign   State 


Plain tift] — The  Court  of  Admiralty  has  power 
under  section  34  of  the  Admiralty  Court  Act, 
1861,  to  stay  proceedings  in  an  action  in  rem 
until  the  plaintiffs  have  given  security  to  answer 
the  defendants'  counterclaim,  even  though  the 
plaintiff*'  ship,  because  it  is  owned  by  a  foreign 
Government,  is  by  the  comity  of  nations  privi- 
leged from  arrest.  The  Newbattle,  10  P.  D.  33  ; 
54  L.  J.,  P.  16  ;  52  L.  T.  16  ;  33  W.  R.  318 ; 
5  Asp.  M.  C.  356— C.  A. 


ii.  Plaintiff  a  Trustee  in  Bankruptcy. 

Insolvency.]  —  The  court  will  not  require 
security  for  costs  to  be  given  by  a  plaintiff  who 
sues  as  trustee  in  bankruptcy  even  where  he  is 
in  insolvent  circumstances.  Denston  v.  Ashton 
(4  L.  R. ,  Q.  B.  590),  approved.  The  observations 
in  Poolers  Trustee  v.  Whetham  (28  Ch.  D.  38) 
dissented  from.  Cowell  v.  Taylor,  31  Ch.  D.  34  ; 
55  L.  J.,  Ch.  92  ;  53  L.  T.  483  ;  34  W.  R.  24— 
C.A. 

Where  the  trustee  of  a  bankrupt  brought  an 
action  in  his  official  name  as  the  trustee  of  the 
bankrupt,  and  there  was  no  evidence  that  the 
trustee  was  in  insolvent  circumstances,  the  court 
refused  to  require  him  to  give  security  merely 
because  he  was  suing  in  his  official  name.  The 
insolvency  of  the  plaintiff  not  being  established, 
the  court  expressed  no  opinion  whether  the 
decision  in  Denston  v.  Ashton  (4  L.  R.,  Q.  B. 
690)  was  right  or  wrong.  Pooley's  Trustee  v. 
Whetham,  28  Ch.  D.  38  ;  64  L.  J.,  Ch.  182  ;  61 
L.  T.  608  ;  33  W.  R.  423— C.  A. 


ill.  Aotion  not  for  Plaintiff's  Benefit. 

Order  when  made.] — On  a  motion  to  dismiss 
an  action  for  want  of  prosecution  (the  plaintiff 
having  omitted  to  give  notice  of  trial  within  the 
proper  time),  or  that  the  plaintiff  might  be 
ordered  to  give  security  for  costs,  the  defendant 
in  support  of  the  application  adduced  evidence 
that  the  plaintiff  was  in  insolvent  circumstances, 
that  he  nad  no  settled  residence,  that  he  had 
mortgaged  his  interest  in  the  property  which  was 
the  subject-matter  of  the  action  to  his  solicitor, 
and  that  there  were  charges  on  the  property  to  its 
full  amount.  The  coats  for  which  the  plaintiff 
was  already  liable  in  the  action  to  the  defendant 
were  estimated  at  about  70/.,  and  the  future  costs 
at  50/.  The  judge,  being  of  opinion  that  the 
plaintiff  was  carrying  on  the  action  not  for  his 
own  benefit,  but  for  that  of  his  solicitor,  ordered 
the  plaintiff  to  give  security  for  costs  to  the 
amount  of  200/.,  and  directed  the  proceedings  to 
be  stayed  in  the  meantime  :— HeKl,  on  appeal, 
that  the  court  would  not  interfere  with  the  dis- 
cretion of  the  judge  as  to  ordering  security, 
but  that  the  amount  must  be  reduced  to  100/. 
Semble,  that  such  an  order  ought  to  be  made 
only  under  very  special  circumstances.  Wilmott, 
v.  Freehold  House  Property  Company,  52  L.  T. 
743  ;  33  W.  R.  554— C.  A. 

3  A 


1443 


PEACTICE    AND    PLEADING. 


1444 


iv.    Insolvency    of  Plaintiff. 

Receiving  Order.]— The  fact  that  a  plaintiff 
is  insolvent,  and  that  there  is  a  receiver  of  his 
assets,  is  not  necessarily  a  ground  for  requiring 
him  to  give  security  for  costs.  Malcolm,  v. 
HodgUinson,  (8  L.  R.  Q.  B.  209)  commented  on. 
A  receiving  order,  made  under  the  Bankruptcy 
Act,  1883,  does  not  divest  the  debtor  of  his  pro- 
perty ;  and  what  he  recovers  as  plaintiff  in  an 
action  is  his  property  both  legally  and  equitably, 
although  he  must,  when  he  recovers  it,  hand  it 
over  to  the  official  receiver  for  the  benefit  of  his 
creditors,  if  he  does  not  pay  or  compound  with 
them.  Therefore  the  debtor,  against  whom  a 
receiving  order  has  been  made,  ought  not  merely 
on  that  ground  to  be  ordered  to  give  security  for 
the  costs  of  any  action  in  which  he  may  be  the 
plaintiff.  Rhodes  v.  Dawson,  16  Q.  B.  D.  548  ; 
65  L.  J.,  Q.  B.  134  ;  34  W.  R.  240— C.  A. 

Insolvent  Corporation — Receiver.] — A  cor- 
poration, plaintiff  in  an  action,  cannot  be 
required  to  give  security  for  costs  on  the  ground 
that  a  receiver  of  its  property  has  been  appointed 
by  the  court.  Dartmouth  Harbour  Commis- 
sioners v.  Dartmouth  Mayor,  55  L.  J.,  Q.  B.  483  ; 
34  W.  R.  774— D. 

Where  Plaintiff  a  Trustee  in  Bankruptcy.] — 

See  supra. 


v.    Married   Women. 

Suing  Alone.] — A  married  woman  suing  alone 
and  having  no  separate  estate,  will  not  be  ordered 
to  give  security  for  costs.  Isaac,  In  re,  Jacob 
v.  Isaac,  30  Ch.  D.  418  ;  54  L.  J.,  Ch.  1136  ;  53 
L.  T.  478  ;  33  W.  R.  845— C.  A. 

Suing  by  Next  Friend— Next  Friend  In- 
solvent.]— A  married  woman  who  had  brought 
an  administration  action  by  her  next  friend,  in 
which  an  order  had  been  made  directing  certain 
enquiries,  was,  on  evidence  that  her  next  friend 
was  a  person  of  no  means,  directed  to  give  security 
for  costs.  Thompson,  In  re,  Stevens  v.  Tlwmpson, 
38  Ch.  D.  317  ;  57  L.  J.,  Ch.  748  ;  59  L.  T.  427— 
C.A. 


vi.    Fund    in    Court. 

Payment  out  to  Successful   Party— Judgment 
Reversed — Order  on  Solicitor  to  Repay.]— An 

action  being  dismissed  at  the  hearing  with  costs, 
a  sum  of  money  which  had  been  paid  into  court 
as  security  for  the  defendants'  costs  was  ordered 
to  be  paid  out  to  the  solicitors  for  the  defendants 
in  part  payment  of  the  defendants'  costs.  The 
judgment  was  reversed  by  the  Court  of  Appeal, 
and  the  costs  ordered  to  be  paid  by  the  defendants. 
The  plaintiffs  asked  for  an  order  against  the 
defendants'  solicitors  for  repayment  by  them  : — 
Held,  that  the  court  had  no  jurisdiction  on  the 
appeal  to  order  the  defendants'  solicitors  to 
refund  the  money,  the  solicitors  not  being  present; 
nor,  semble,  could  such  an  order  have  been  made 
if  they  had  been  served  with  notice  of  the 
application.  Lydney  and  Wig  pool  Iron  Ore 
Company  v.  Bird,  33  Ch.  D.  85  ;  55  L.  T.  558  ; 
34  W.  R.  749— C.  A. 


e.  Consolidation  op  Across. 

Separate  Actions  by  same  Plaintiff  against 
several  Defendants  for  publication  of  Bams 
Libel.] — The  plaintiff  having  brought  an  action 
against  the  defendant  Pike,  a  newspaper  pro- 
prietor and  publisher,  for  publishing  a  libel  in 
his  newspaper,  and  having  also  at  the  same  time 
brought  a  separate  action  against  each  of  sixteen 
other  different  defendants  for  publishing  the 
same  libel  in  their  several  newspapers,  the  judge 
at  chambers  refused  an  application  on  the  part 
of  all  the  seventeen  several  defendants  for  an 
order  that  all  further  proceedings  might  be  stayed 
in  all  the  said  actions  except  the  first  aboYe- 
mentioned  action  until  the  verdict  should  be 
given  ;  the  said  several  defendants  undertaking 
to  be  bound  and  concluded  by  the  verdict  in  the 
said  test  action,  provided  such  verdict  should  be 
to  the  satisfaction  of  the  judge  who  might  fry 
the  same.  On  the  hearing  of  an  appeal,  the 
court  (1)  refused  to  make  an  order  to  consolidate 
the  said  actions  on  the  ground  that,  although 
the  libel  was  the  same  in  each  case,  yet  the 
several  publications  and  the  circumstances 
attending  them  being  different,  the  causes  of 
action  in  the  several  cases  were  different ;  but  (2) 
they  made  an  order  that  all  further  proceedings 
in  all  the  said  actions,  save  one  to  be  selected  by 
the  plaintiff,  be  stayed  pending  the  trial  of  Bach 
selected  action,  the  defendant  therein  to  have 
seven  days'  time  to  deliver  his  defence  after 
notice  to  him  of  such  selected  action  ;  and  further 
that,  if  the  plaintiff  be  dissatisfied  with  the 
verdict  obtained  on  the  trial  of  such  action,  be 
should  be  at  liberty  to  select  one  other  action 
for  trial,  the  defendant  therein  having  like  time 
after  notice  to  deliver  his  defence  ;  and  further, 
the  defendants  by  their  counsel  undertaking  to 
be  bound  by  the  verdicts  in  the  said  selected 
first  and  second  actions,  that  the  plaintiff  be  at 
liberty  to  sign  judgment  against  the  defendants 
in  all  the  remaining  actions  for  the  maximum 
amount  of  damages  found  by  the  jury.  CoUedte 
v.  Pike,  56  L.  T.  124— D. 

Action  in  Inferior  Court— Cross  Action  n 
High  Court— Plaintiffs.]— When  an  action  * 
transferred  from  an  inferior  court  and  consolidated 
with  a  cross-action  begun  in  the  High  Court  the 
plaintiffs  in  the  action  in  the  inferior  court  will 
be  placed  in  the  position  of  plaintiffs  in  the 
consolidated  actions,  if  they  began  the  action  in 
the  inferior  court  before  the  cross-action  in  the 
High  Court.  The  Never  Despair,  9  P.  D.  34 ;  53 
L.  J.,  P.  30  ;  50  L.  T.  369  ;  32  W.  B.  599  ;  5  Asp. 
M.  C.  211— Hannen,  P.  S.  P.  The  Bjorn,  9  P.  ft 
36,  n. ;  5  Asp.  M.  C.  212,  n. ;  and  The  Cosmopoli- 
tan, 9  P.  D.  35,  n.  ;  5  Asp.  M.  C.  212,  n. 


/.   Tbansfeb  op  Actions. 

On  what  Principles  determined.]  —  Under 
s.  24,  sub-s.  6  of  the  Judicature  Act,  1873,  and 
in  the  absence  of  consent  to  the  contrary,  a 
common  law  action  tried  in  or  transferred  to 
another  division  is  to  be  determined  on  the  same 
common  law  principles  as  would  have  bees 
applied  to  it  in  the  Queen's  Bench  Division. 
The  Gertrude,  The  Baron  Aberddre,  13  P.  D. 
105  ;  69  L.  T.  251  ;  36  W.  R.  616 ;  6  Asp.  M.  0. 
315— per  Fry,  L.J. 


1445 


PRACTICE    AND    PLEADING. 


1446 


Common  Law  Division  —  Donatio  mortis 
caua.] — The  Common  Law  Divisions  have 
jurisdiction  to  entertain  an  action  to  establish 
a  donatio  mortis  causa,  even  where  the  legal 
right  has  not  passed  to  the  donee ;  but  in  such 
cases  the  action  is  more  properly  instituted  in 
the  Chancery  Division.  Cassidy  v.  Belfast 
Banking  Company,  22  L.  R.,  Ir.  68— Ex.  D. 


Lty  Division.] — Although  an 
action  in  which  the  sole  question  is  a  question  of 
salvage  may  under  Order  XLIX  r.  3,  be  properly 
transferred  to  the  Admiralty  Division,  such  a 
transfer  should  not  be  ordered  where  there  are 
other  questions  in  the  action  capable  of  being 
tried  by  a  jury.  Ocean  Steamship  Company  v. 
Anderson,  33  W.  B.  536— C.  A. 

Administration  Aotions.] — An  order  for  the 
transfer  to  the  judge  before  whom  an  admin- 
istration action  is  pending  of  actions  against 
the  executors  should  not  be  made  by  the  order 
for  administration.  Poole,  In  re,  Poole  v. 
Poole,  55  L.  T.  56— North,  J. 

An  action  may  be  transferred  from  the  Com- 
mon Law  Division  under  Ord.  L.  r.  4,  after  an 
order  for  administration  accounts  has  been 
made.  Henderson  v.  Maxwell,  17  L.  R.,  Ir. 
225-V.-C. 

Transfer  to  Chancery  Division — Counterclaim 
tor  Specific  Performance.] — An  action  will  not  be 
transferred  from  a  Common  Law  Division  to  the 
Chancery  Division  merely  because  there  is  an 
equitable  counterclaim,  as,  for,  instance,  one  for 
specific  performance  of  an  agreement,  unless 
there  is  some  practical  difficulty  in  determining 
the  questions  raised  in  the  Common  Law  Division. 
Bridges  v.  Dyas,  12  L.  R.,  Ir.  377— Ex.  D. 

In  an  action  by  a  purchaser  of  land  against  the 
render  for  return  of  the  deposit,  the  defendant 
counter-claimed  for  specific  performance : — 
Held,  that  the  action  ought  to  be  transferred  to 
the  Chancery  Division.  London  Land  Company 
v.  Harris,  13  Q.  B.  D.  540  ;  53  L.  J.,  Q.  B.  536  ; 
51  L.  T.  296  ;  33  W.  R.  14— D. 

Action  by  Mortgagee  for  Balance — Cross- 

aettan  tor  an  Aooount] — The  personal  repre- 
sentative of  a  deceased  mortgagee  commenced 
an  action  in  the  Queen's  Bench  Division  against 
the  mortgagor  for  payment  of  the  balance  of 
moneys  lent  by  the  mortgagee  and  interest. 
Twelve  days  afterwards  the  defendant  com- 
menced an  action  in  the  Chancery  Division 
against  the  mortgagee's  personal  representative 
and  heir-at-law  claiming  an  account  and  pay- 
ment of  the  balance  owing  by  the  deceased  and 
redemption  : — Held,  that  the  first  action  ought 
not  to  be  transferred  to  the  Chancery  Division, 
*s  the  accounts  could  be  more  conveniently 
taken  before  an  official  referee  than  before  the 
chief  clerk.  Newbould  v.  Steade,  49  L.  T.  649 
-C.A. 

Action  for  Partnership  and  other  Ao- 

••eats.] — Where  the  plaintiff  brought  an  action 
in  the  Queen's  Bench  Division,  and  bis  claim  was 
to  have  an  account  taken  of  partnership  dealings 
extending  over  a  period  of  four  years,  and  to 
have  the  affairs  of  the  partnership  wound  up, 
*nd  also  to  have  an  account  taken  of  moneys 
tad  and  received  by  the  defendant  otherwise 
than  under  the  partnership  deed : — Held,  that 


notwithstanding  Ord.  XV.  r.  1  (a),  this  action 
should  be  transferred  to  the  Chancery  Division 
for  the  purpose  of  having  the  partnership  and 
other  accounts  taken,  as  the  Queen's  Bench 
Division  had  not  suitable  machinery  for  the 
taking  of  such  accounts.  Leslie  v.  Clifford,  50 
L.  T.  690— D. 

Transfer  to  and  from  County  Court.]  —  See 
County  Coubt,  3,  4. 

g.   Discontinuance. 

What  amounts  to — Amendment  of  Claim — 
Fresh  Cause  of  Action  set  up.] — The  plaintiff, 
by  his  statement  of  claim,  alleged  that  he 
was  the  proprietor  of  the  copyright  in  a  design 
representing  an  infant  asleep  upon  a  pillow, 
which  was  duly  registered  by  nim  in  1879, 
and  that  the  defendant  had  infringed  such 
copyright,  and  he  claimed  an  injunction  to 
restrain  the  defendant.  The  design  was  re- 
gistered under  the  Fine  Arts  Copyrights  Act,  1862 
(25  &  26  Vict  c.  68).  The  defendant  delivered 
a  defence  in  which  he  alleged  that,  for  certain 
reasons  connected  with  registration,  which  he 
stated,  the  plaintiff  was  not  the  proprietor  of  the 
copyright  in  the  design,  and  that  the  action  was 
not  sustainable.  The  plaintiff  thereupon  amended 
his  claim  by  striking  out  the  paragraph  which 
alleged  that  he  was  the  proprietor  of  the  copy- 
right in  a  design,  and  substituting  a  statement 
that,  in  1870,  he  caused  to  be  registered  at 
Stationers'  Hall  a  certain  book,  of  which  a  sub- 
sequent edition  was  published,  in  which  was 
contained  a  drawing  representing  an  infant  asleep 
upon  a  pillow.  The  book  was  registered  under 
the  Copyright  Act,  1842  (5  &  6  Vict.  c.  45). 
More  than  eight  days  after  the  delivery  of  the 
amended  statement  of  claim  the  defendant  moved 
that  the  plaintiff  might  be  ordered  to  pay  the 
costs  of  the  action  up  to  the  time  of  the  delivery 
of  such  amended  pleading,  and  also  the  costs  of 
the  motion,  and  that  the  action  might  be  stayed 
until  the  payment  of  all  such  costs.  He  con- 
tended that  what  had  been  done  by  the  plaintiff 
amounted  to  a  discontinuance  ol  his  original 
action  and  the  commencement  of  a  new  one  : — 
Held,  that  the  motion  was  altogether  irregular, 
and  must  be  refused  with  costs,  as  the  proper 
course  was  for  the  defendant  to  have  moved, 
under  Ord.  XXVIII.  r.  4,  within  eight  days 
after  the  delivery  of  the  amended  pleading,  for  a 
disallowance  of  the  amendment,  or  allowance 
thereof  subject  to  terms  as  to  costs  or  otherwise, 
provision  for  the  costs  of  such  amendments  being 
made  by  r.  13  of  the  same  order.  Bourne  v. 
Coulter,  53  L.  J.,  Ch.  699  ;  50  L.  T.  321— Kay.  J. 


Payment  into   Court   with   Denial   of 


Liability— Costs.]— In  an  action  for  breach  of 
contract,  in  whicn  the  plaintiffs  alleged  several 
distinct  breaches,  the  defendants,  while  denying 
all  liability,  paid  into  court  in  the  alternative  a 
sum  by  way  of  satisfaction  of  one  alleged  breach. 
The  piaintiffs  took  out  the  sum  so  paid  in,  and 
gave  notice  that  they  accepted  the  same  in  full 
satisfaction  of  the  causes  of  action  in  the  state- 
ment of  claim  mentioned  : — Held,  that  what  the 
plaintiffs  had  done  was  equivalent  to  a  discon- 
tinuance, that  they  were  entitled  to  tax  their 
costs  under  Ord.  XXII.  r.  7,  and  that  it  was  not 
necessary  for  them  also  to  give  notice  of  discon- 
tinuance under  Ord.  XXVI.  r.  1.    MclUvoraith 

3  A  2 


1447 


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1448 


t.  Green,  14  Q.  B.  D.  766  ;  64  L.  J..  Q.  B.  41 ;  52 
L.  T.  81— C.  A. 

■ 

Jurisdiction  to  order  Defendant  to  Pay  Costs.] 
— Upon  an  application  by  a  plaintiff  for  leave 
under  Ord.  XX.VI.  r.  1,  to  discontinue  an  action, 
the  court  or  judge  has  no  jurisdiction  to  make 
the  defendant  pay  any  costs  of  a  defence  which, 
if  undisputed,  or  if  it  had  been  found  in  the  de- 
fendant s  favour,  would  have  disentitled  the 
plaintiff  from  maintaining  his  action.  Where  a 
court  or  judge  is  expressly  given  a  discretion  as 
to  costs,  the  exercise  of  such  discretion  cannot 
be  delegated.  Lambton  v.  Parkinson,  35  W.  R. 
545— D. 

Costs— Effect  of  Payment  into  Court  by  De- 
fendant]—On  a  summons  under  Ord.  XIV.  for 
the  payment  of  a  sum  of  money,  the  master 
ordered  the  defendant  to  pay  money  into  court 
as  to  part  of  the  claim,  and  gave  leave  to  defend 
as  to  the  remainder.  After  issue  joined,  the 
plaintiff  discontinued  the  action.  The  taxing- 
master  gave  the  defendant  the  whole  costs  of  the 
action  from  the  beginning.  On  appeal  for  review 
of  taxation  : — Held,  that  the  costs  were  not 
governed  by  Ord.  XX VL  r.  1,  but  were  in  the 
discretion  of  the  court,  under  Ord.  LXV.  r.  1, 
and  that  the  plaintiff  was  entitled  to  his  costs  up 
to  the  time  of  payment  into  court.  Langridge 
v.  Campbell  (2  Ex.  D.  211)  distinguished.  Suck- 
ling v.  Gabb,  36  W.  R.  175— D. 


Of  part  of  Claim — Striking  ont  Pleading.]— 
See  Brooking  v.  Maudslay,  post,  col.  1505. 


A.  Confession  of  Defence. 

Plaintiff  signing  Judgment  for  Costs.] — An 
action  was  brought  by  a  member  of  a  club  "  on 
behalf  of  himself  and  all  other  members"  of 
such  club,  "  except  the  defendant,"  against  the 
committee  of  the  club,  charging  them  with 
breaches  of  trust  in  making  profits  out  of  con- 
tracts entered  into  by  them  on  behalf  of  the 
club.  The  defence,  in  addition  to  other  matters, 
stated  that  since  action  brought  a  meeting  of 
the  club  had  been  held  at  which  the  contracts 
had  been  ratified  by  every  member  except  the 
plaintiff,  and  that  resolutions  expressing ,  confi- 
dence in  the  committee  had  been  passed.  The 
plaintiff  delivered  a  confession  of  defence,  and 
signed  judgment  for  his  costs  of  the  action. 
The  defendants  moved  to  set  aside  the  judgment 
and  dismiss  the  action  : — Held,  that  the  plaintiff 
could  not  avail  himself  of  Ord.  XXIV.  r.  3,  as 
the  above  grounds  of  defence  did  not  amount  to 
a  waiver  of  the  other  pleas.  Foster  v.  Gam  gee, 
(1  Q.  B.  D.  666,)  distinguished.  Harrison  v. 
Abergavenny  (Marquis),  57  L.  T.  360— Kay,  J. 

Defendants  delivered  a  further  defence  of 
matter  arising  since  the  delivery  of  the  defence. 
The  plaintiffs  delivered  a  confession  of  the 
amended  defence,  and  signed  judgment  for  costs 
against  the  defendants.  The  judgment  for  costs 
was  set  aside  on  terms  of  the  defendants  with- 
drawing their  amended  defence.  Bridgetown 
Waterworks  Company  v.  Barbados  Water 
Supply  Company,  38  Ch.  D.  378  ;  57  L.  J.,  Ch. 
1051 ;  59  L.  T.  314  ;  36  W.  R.  852— North,  J. 


i.  Dismissal  fob  want  of  Prosecution. 

Consent  Order— No  Bar  to  Fresh  Action.] - 
An  order  by  consent,  in  the  absence  of  an  agree- 
ment to  compromise  the  cause  of  action,  to 
dismiss  an  action  for  want  of  prosecution  is  no 
bar  to  the  institution  of  a  fresh  action.  In  this 
respect  the  practice  of  the  old  Court  of  Chancery 
remains  unchanged.  Magnus  v.  National  Bank 
of  Scotland,  57  L.  J.,  Ch.  902  ;  58  L.  T.  617 ;  36 
W.  B.  602— Kay,  J. 

The  plaintiffs  in  an  action,  wherein  the  same 
parties  were  respectively  plaintiffs  and  defen- 
dants, and  the  same  relief  was  sought  as  in  the 
present  action,  had  paid  the  defendants'  cost* 
and  consented  to  an  order,  made  on  summons 
taken  out  by  the  defendants,  dismissing  the 
action  for  want  of  prosecution.  The  plaintiffs 
subsequently  brought  the  present  action,  where- 
upon  the  defendants  moved  that  the  question  of 
law  might  first  be  tried  whether  the  plaintiffs 
were  not  estopped  from  bringing  the  present 
action  by  reason  of  the  consent  order  made  in 
the  previous  action  : — Held,  that  the  defendants 
were  not  entitled  to  the  order  asked  for.    lb. 

Default  in  Proceeding  to  trial— Yerdiet  est 
Aside.] — An  action,  in  which  the  place  of  trial 
was  out  of  Dublin,  was  tried  at  the  Spring 
Assize,  1883,  when  a  verdict  was  directed  for  the 
defendant.  This  verdict  was  set  aside  on  the 
ground  of  misdirection,  and  a  second  trial  took 
place  at  the  Spring  Assizes,  1884,  resulting  in  a 
verdict  directed  for  the  plaintiff,  which  was  al» 
set  aside,  and  a  third  trial  ordered  in  the  Michael- 
mas  Sittings,  1884.  The  plaintiff  not  haying 
served  notice  of  trial  for  the  next  ensuing  assues, 
the  defendant  moved  to  dismiss  the  action  for 
want  of  prosecution,  contending  that  the  case 
fell  within  Ord.  XXXV.  rr.  2,  4  .-—The  court  re- 
fused the  motion.  Semble,  the  only  remedy  open 
to  a  defendant  under  such  circumstances  is  trial 
by  proviso  under  the  old  practice.  Foott  v.  Br**, 
16  L.  R.,  Ir.  247— Ex.  D. 

Abortive  Trial.  ]—  A  defendant  is  entitled 

to  have  an  action  dismissed  for  want  of  prosecu- 
tion after  an  abortive  trial  if  the  plaintiff  fails 
to  proceed.  National  Bank  v.  Canning,  16  L.  JL 
Ir.  444— Q.  B.  D. 

Cause  not  entered  for  Trial]  —  A  plaintiff 
gave  notice  of  trial,  but  did  not  enter  the  cause 
for  trial  within  six  days  after  the  notice  of  trial 
was  given,  in  accordance  with  Ord.  XXXVI. 
r.  16  : — Held,  that  the  defendant  was  entitled  to 
move  to  dismiss  the  action  for  want  of  prosecu- 
tion. Crick  v.  Hewlett,  27  Ch.  D.  354  ;  63  I*  J., 
Ch.  1110  ;  51  L.  T.  428  ;  32  W.  R.  922— Pearson, 
J. 

Effect  of  Obtaining  Order  for  Security  for 
Costs — Counterclaim.] — An  order  obtained  by 
the  defendants  for  security  for  coats,  with  a  stay 
of  proceedings  until  the  security  is  given,  does 
not  prevent  the  defendant  from  moving  to  dis- 
miss the  action  for  want  of  prosecution.  Upon 
an  application  by  a  defendant  who  has  delivered 
a  counterclaim  to  dismiss  an  action  for  want  of 
prosecution,  he  is  entitled  in  default  of  reply  to 
judgment  on  his  counterclaim.  London  Bead 
Car  Company  v.  Kelly,  18  L.  R.,  Ir.  43— Q.  B.  D. 


1449 


PRACTICE    AND    PLEADING. 


1450 


j.  Inspection  of  Property. 
Im  Patent  Actions.]— See  Patent,  III.  2. 

Ai  between  oo-Plaintiib  or  co-Defendants.] — 
Ord.  L.  r.  3  provides  that  it  shall  be  lawful  for 
the  court  or  a  judge,  upon  the  application  of 
any  party  to  a  cause  or  matter,  and  upon  such 
terms  as  may  be  just,  to  make  any  order  for 
(among  other  things)  the  inspection  of  any  pro- 
perty or  thing,  being  the  subject  of  such  cause 
or  matter,  or  as  to  which  any  question  may  arise 
therein.  Claims  being  made  against  two  de- 
fendants severally  in  the  same  action : — Held, 
that  under  the  above-mentioned  rule  inspection 
could  not  be  granted  to  one  defendant  of  pro- 
perty belonging  to  another  defendant  when 
there  was  no  right  in  question  as  between  them 
in  the  action.  Brown  v.  Wat  kins  (16  Q.  B.  D. 
125)  explained.  Shaw  v.  Smith,  18  Q.  B.  D. 
193 ;  56  L.  J.,  Q.  B.  174  ;  56  L.  T.  40  ;  36  W.  R. 
18S-C.A. 

Timber  en  Ship  in  Harbour.] — The  court, 
under  Ord.  LI.  r.  3,  gave  the  plaintiff  leave  to 
inspect  a  ship  lying  in  harbour,  on  which  it  was 
alleged  that  certain  timber,  part  of  the  subject- 
matter  of  the  action,  had  been  placed  by  the 
defendant  for  removal.  Morris  v.  Hotoell,  22 
U  R.,  It.  77— Q.  B.  D. 

Authority  to  dig  up  Boil.] — Under  rule  3  of 
Oxd.  L.  the  court  has  power  to  make  an  in- 
terlocutory order  before  trial,  giving  liberty  to 
a  plaintiff  to  enter  upon  land  belonging  to  the 
defendant,  and  to  excavate  the  soil  thereof  for 
the  purposes  of  inspection.  Lumb  v.  Beaumont, 
27  Ch.  D.  356 ;  53  L.  J.,  Ch.  1111  ;  51  L.  T. 
197 ;  32  W.  R.  985— Pearson,  J. 

Inspection  by  Trinity  Hasten  before  Trial.] — 
Before  the  hearing  of  an  action  an  application 
was  made  under  24  Vict.  c.  10,  s.  18,  by  the 
plaintiffs,  that  two  Trinity  masters  should 
inspect  the  lights  of  the  defendants'  ship: — 
Held,  that  the  application  was  premature,  and 
ought  to  be  refused.  The  Victor  Covacevich, 
10  P.  D.  40  ;  54  L.  J.,  P.  48  ;  52  L.  T.  632  ;  5 
ismKLC.  417— Butt,  J. 

Inspection  of  Documents.] — See  Discovery. 

A.  ACCOUNTS    AND    INQUIRIES. 

Seterenee  of  Matters  of  Account.  ] — See  Arbi- 
tration. 

Application  for,  by  Accounting  Party.] — 
Ord.  II.  r.  5,  and  Ord  XIV.  are  not  confined  to 
esses  where  the  account  claimed  is  an  account 
to  be  rendered  by  the  defendant,  but  they  apply 
to  cases  where  the  plaintiff  will  himself  be  the 
accounting  party— e.g.,  where  a  personal  repre- 
sentative seeks  to  have  the  usual  administration 
accounts  taken.  Molony  v.  Molony,  21  L.  R.,  Ir. 
91-V.  C. 

lo  Jurisdiction  to  Order  whole  Matter  to  be 
tried  in  Chambers.] — The  plaintiff,  an  equitable 
mortgagee,  brought  an  action  for  foreclosure  or 
asle  against  several  other  mortgagees,  insisting 
that  under  the  circumstances  she  was  entitled  to 
priority  over  the  defendants.  The  alleged  priority 
of  the   plaintiff  to  the  defendants  depended 


on  questions  of  notice  and  fraud.  On  the  appli- 
cation of  the  plaintiff,  Kay,  J.,  on  summons 
under  Ord.  XXXIII.  r.  2,  made  an  order  directing 
an  inquiry  what  were  the  respective  priorities  of 
the  incumbrances  of  the  plaintiff  and  the  re- 
spective defendants,  and  an  account  of  what 
was  due  to  the  incumbrancers  respectively.  One 
of  the  defendants  appealed  : — Held,  on  appeal, 
that  this  order  must  be  discharged,  for  that 
Ord.  XXXIII.  r.  2,  was  not  intended  to  autho- 
rise the  sending  the  whole  of  the  questions  in  a 
cause  to  be  tried  in  chambers,  but  only  to  autho- 
rise the  court  to  direct,  before  trial,  accounts  and 
inquiries  which  would  otherwise  have  been 
directed  at  the  trial.  Qarnham  v.  Skipper,  29 
Ch.  D.  566  ;  62  L.  T.  239— C.  A. 

Useful  only  if  Case  established  at  Trial.]— 
A  mortgagee  of  shares  of  the  proceeds  of  the 
residuary  real  and  personal  estate  of  a  testator 
who  died  in  1872,  brought  an  action  in  1884  for 
the  administration  of  the  estate,  alleging  mis- 
application by  one  of  the  trustees  of  moneys 
raised  by  mortgage  of  parts  of  the  real  estate, 
and  advanced  to  the  same  trustee  of  parts  of  the 
testator's  estate  on  equitable  mortgage.  The 
plaintiff  applied,  under  Ord.  XV.  r.  1,  for  the 
common  accounts  and  inquiries  in  an  adminis- 
tration suit,  and  also  for  inquiries  as  to  mort- 
gages of  the  real  estate,  and  as  to  advances 
to  the  trustee: — Held,  that  only  common  ac- 
counts and  inquiries  could  be  directed  on  an 
application  under  the  rule,  and  not  accounts 
and  inquiries,  the  right  to  which  depended  on 
the  plaintiff  establishing  a  case  for  them  at 
the  bearing,  and  that  the  special  inquiries 
therefore  could  not  be  directed.  Gyhon,  In  re, 
Allen  v.  Taylor,  29  Ch.  D.  834;  54  L.  J., 
Ch.  945  ;  53  L.  T.  539  ;  33  W.  B.  620— C.  A. 

Held,  further,  that  Ord.  XV.  r.  1,  must  be 
read  in  connexion  with  Ord.  LV.  r.  10,  which 
makes  it  not  obligatory  on  the  court  to  order  a 
general  administration,  and  that  the  Vice-Chan- 
cellor  was  right  in  refusing  the  common  accounts 
and  inquiries  in  a  case  where,  having  regard  to 
the  period  elapsed  since  the  testator's  death,  it 
was  uncertain  whether  a  general  administration 
order  would  be  found  at  the  hearing  to  be  de- 
sirable, and  where  if  the  plaintiff  at  the  hearing 
established  a  case  of  breach  of  trust,  accounts 
and  inquiries  would  have  to  be  directed,  going 
over  in  part  the  same  ground  as  the  common 
accounts  and  inquiries.    lb. 

Sight  to  Stay  Proceedings— Insufficiency  of 
Assets.  ] — Order  made  staying  until  further  order, 
with  liberty  to  apply,  the  prosecution  of  accounts 
and  inquiries  directed  by  a  judgment  in  the 
nature  of  a  foreclosure  judgment  (unless  the 
defendants  would  give  security  for  the  costs  of 
the  proceedings),  on  the  ground  that  it  was 
shown  to  be  highly  probable  that  the  amount 
due  to  the  plaintiffs  would  greatly  exceed  the 
value  of  the  property,  and  that  the  costs  of 
further  proceedings  would  be  thrown  away. 
Exchange  and  Hop  WareJumses  v.  Land  Finan- 
ciers' Association,  34  Ch.  D.  195  ;  56  L.  J.,  Ch. 
4  ;  55  L.  T.  611 ;  35  W.  R.  120— North,  J. 

Possession  of  Premises  by  Father  or  Mother 
as  Bailiff  for  Children.]— &f  Infant,  II L 

Foreclosure  Aotion — Judgment.] — A  plaintiff 
in  a  foreclosure  action,  where  there  is  no  pre- 


1461 


PRACTICE    AND    PLEADING. 


1452 


liminaiy  question  to  be  tried,  may  obtain  by 
summons  in  chambers,  under  Bales  of  Supreme 
Court,  1883,  Ord.  XV.  rr.  1  and  2,  an  order  for 
an  account  and  foreclosure — that  is  to  say,  the 
usual  foreclosure  judgment.  Smith  v.  Davie*  or 
Davie*  v.  Smith,  28  Ch.  D.  660  ;  64  L.  J.,  Ch. 
278  ;  52  L.  T.  19  ;  33  W.  B.  211—  Chitty,  J.  But 
see  Blake  v.  Harvey,  post,  col.  1491. 
See  further,  MORTGAGE,  VII.  1.  b. 

Redemption  Action— Preliminary  Account — 
Form  of  Order.] — A  general  redemption  decree 
will  not  be  made  upon  a  summons  for  pre- 
liminary accounts  under  Ord.  XV.  r.  1.  Where, 
therefore,  a  writ  had  been  issued  in  an  action 
against  mortgagees  in  possession,  but  no  other 
pleadings  had  been  delivered,  and  minutes  of 
judgment  were  drawn  up  upon  a  summons  under 
Ord.  XV.  r.  1,  directing  the  necessary  accounts, 
and  further  directing  that  the  defendants'  costs 
should  be  taxed,  and  the  amount  of  such  costs, 
as  well  as  the  certified  amount  found  due  upon 
the  accounts,  paid  by  the  plaintiff  to  the  defen- 
dants within  six  months,  and  in  default  that 
the  action  should  be  dismissed : — Held,  that  the 
order  must  be  for  accounts  only,  and  that  the 
further  directions,  which  made  the  order 
equivalent  to  a  decree,  must  be  struck  out. 
Clover  v.  Wilts  and  We*tem  Benefit  Building 
Society,  53  L.  J.,  Ch.  622  ;  50  L.  T.  382  ;  32  W. 
B.  895— V.-C.  B. 


Order  for  Account  not  referring  to  Settled 
Aooount.J — By  the  rules  of  a  benefit  society  it 
was  provided  that  the  accounts  should  be  audited, 
and  that  after  they -had  been  audited  and  signed 
by  the   auditors,   the   secretary  and  treasurer 
should  not  be  answerable  for  any  mistakes,  omis- 
sions, or  errors  that  might  afterwards  be  proved 
in  them.  An  action  for  an  account  was  commenced 
by  two  shareholders,  on  behalf  of  themselves  and 
all  other  the  shareholders,  against  the  secretary. 
No  pleadings  were  delivered,  and  on  a  motion 
for  a  receiver  being  made  the  defendant  sub- 
mitted to  an  order  for  an  account  of  all  moneys 
and  property  of  the  society  come  to  his  hands, 
without  any  direction  as  to  settled  accounts. 
The  defendant  carried  in  a  complete  account, 
and  the  plaintiffs  carried  in  a  surcharge.    The 
defendant  then  set  up  certain  accounts  which 
had  been  audited  under  the  rules,  as  vouching 
his  account  for  the  period  over  which  they  ex- 
tended.   The  point  was  brought  before  the  j udge, 
who  was  stated  to  have  expressed  his  opinion 
that  the  audited  accounts  must  be  treated  as 
conclusive.     The  plaintiffs  then  applied  for  a 
direction  that  in  taking  the  accounts  the  audited 
accounts  might  be  disregarded,  on  the  ground 
that  as  the  order  did  not  save  the  settled  accounts, 
they  could  not  be  attended  to.    The  application 
was  refused,  and  the  plaintiffs  appealed: — Held, 
that  the  audited  accounts  ought  not  to  be  disre- 
garded, and  that  the  appeal  must  be  dismissed  : 
but  the  dismissal  was  prefaced  by  a  statement  of 
the  opinion  of  the  court,  that  the  plaintiffs,  in 
taking  the  accounts  under  the  order,  were  at 
liberty  to  impeach  the    audited  accounts   for 
fraud.    Holgate  v.   Shutt,  27  Ch.  D.  Ill  ;  53 
L.  J.,  Ch.  774 ;  51  L.  T.  433  ;  32  W.   B.  773. 
— C.A. 

Under  an  order  directing  an  account,  and  not 
referring  to  settled  accounts,  the  accounting 
party  may  set  up  settled  accounts,  though  the 
order  does  not  direct  that  settled  accounts  shall 


not  be  disturbed,  and  the  opposite  party  may 
impeach  them,  though  the  order  does  not  ex- 
pressly give  him  liberty  to  do  so.  Hdgtte  ?. 
Shutt,  28  Ch.  D.  Ill  ;  54  L.  J.,  Ch.  436;  51 
L.  T.  673 ;  49  J.  P.  228— C.  A. 

Opening  Settled  Accounts  —  Allegation  of 
Fraud — Particulars.] — The  plaintiffs  employed 
the  defendants  to  purchase  goods,  as  their  agents, 
at  the  lowest  possible  prices.  The  plaintiffs 
sued  for  an  account,  and:  in  their  statement  of 
claim  alleged  that  the  defendants  had  purchased 
goods  at  prices  higher  than  the  current  prices, 
and  had  secretly  received  from  the  Tenders 
allowances  or  commissions.  The  charges  against 
the  defendants  were  stated  in  general  terms,  no 
particulars  being  mentioned.  The  defendants 
denied  the  charges,  and  pleaded  a  settled  ac- 
count:— Held,  by  Cotton,  L.J.,  affirming  the 
decision  of  Bacon,  V.-C.  (diss.  Fry,  L.  J.),  on  an 
application  for  production  of  documents,  that  the 
plaintiffs  were  entitled  thereto  without  giving 
particulars  of  fraud.  Whyte  v.  Ahrens,  26  Ch.* 
D.  723  ;  54  L.  J.,  Ch.  145  ;  50  L.  T.  344 ;  32 
W.  B.  649— C.  A. 

Held,  by  Fry,  L.J.,  that  the  allegations  of 
fraud  in  the  pleadings,  not  being  sufficient  to 
enable  the  plaintiffs  to  open  a  settled  account 
discovery  ought  to  be  refused  until  the  allega- 
tions had  been  made  sufficient     lb. 


Lapse  of  Time.] — In  a  foreclosure  action 


a  defence  and  counterclaim  were  put  in  ni*ininigf 
payment  of  what  should  be  found  due  to  the  de- 
fendant on  taking  the  accounts,  but  not  expressly 
claiming  to  open  the  accounts  or  specifying  im- 

E roper  charges.  An  application  to  amend  at  toe 
earing  was  refused.  The  court,  however,  per- 
mitted the  parties  to  give  evidence  as  to  the 
accounts,  on  the  ground  that  it  might  be  the  duty 
of  the  court,  under  Ord.  XXVIII.  r.  1,  to  make 
all  such  amendments  as  should  be  necessary  for 
determining  the  real  question  between  the  parties, 
and  having  heard  the  evidence  without  ordering 
amendment,  the  court  treated  the  pleadings  as 
amended,  and  decided  on  the  evidence.  Ward 
v.  Sharp,  53  L.  J.,  Ch.  313  ;  50  L.  T.  557 ;  32 
W.  B.  584— North,  J. 

Aoeountant'8  Fee— Percentage.  ]— Where  an 
accountant  had  been  employed  by  consent  of  all 
parties  to  assist  the  chief  clerk  in  taking  very 
complicated  accounts,  and  had  taken  them 
before  the  19th  January,  1884,  he  was  held 
entitled  to  his  percentage  fee  under  the  order 
of  October,  1875,  though  the  certificate  was 
not  signed  till  after  the  order  of  January,  1884. 
Hutchinson,  In  re,  Hutchinson  v.  Norwood,  50 
L.  T.  486 ;  32  W.  B.  392— C.  A. 

Effect  of  Order  upon  Powers  of  Trustees.]— 

A.  by  will  appointed  three  trustees,  one  of  whom 
was  B.,  the  tenant  for  life,  and  directed  that  any 
vacancy  in  the  number  of  trustees  should  be 
filled  up  within  one  year  after  it  occurred.  One 
trustee  disclaimed,  the  other  died  after  some 
years,  leaving  B.  surviving.  An  action  was 
commenced,  asking  for  the  general  execution  of 
the  trusts  of  the  will.  The  court,  under  Ord. 
LV.  r.  3,  sub-s.  10,  ordered  only  certain  special 
inquiries,  among  which  was  an  inquiry  whether 
new  trustees  had  been  appointed,  and  whether 
any  or  what  steps  ought  to  be  taken  for  their 
appointment.    Pending  this  inquiry  B.  appointed 


1453 


PRACTICE    AND    PLEADING. 


1454 


a  new  trustee.  The  plaintiffs  now  moved  to 
restrain  the  funds  being  handed  to  him  and  his 
acting  as  trustee : — Held,  that  the  special  in- 
quiry made  it  the  duty  of  B.  not  to  rill  up  the 
appointment  without  the  approval  of  the  court, 
but  that  the  power  was  not  destroyed  ;  all  that 
was  necessary  was  for  B.  to  appoint  a  person 
whom  the  court  would  approve,  and  it  not  being 
alleged  that  the  new  trustee  was  an  improper 
person,  the  court  would  not  interfere  with  the 
appointment,  and  it  was  not  necessary  formally 
to  sanction  it.  Hall,  In  re,  Hall  v.  Hall,  51 
L.  T.  901— Pearson,  J. 

In  Administration  Action.] — See  Executob 
and  Administrator,  VI. 


I.  Mandamus,  Injunction,  and  Receiver. 

L  Effect  of  Judicature  Act,  1873,  s.  26, 

sub-s.  8. 

Equitable  Execution—"  Just  and  Convenient."] 
—A  judgment  debtor  had  lands  in  Surrey  subject 
to  an  equitable  mortgage ;  and  his  judgment 
creditor  obtained  an  order  for  a  receiver  of  these 
lands.  This  order  was  not  registered.  After  the 
appointment  of  the  receiver  the  debtor  sold  the 
lands  to  a  purchaser  for  value  without  notice  : — 
Held,  that  under  the  circumstances  of  the  case 
it  was  just  and  convenient  for  the  court  to  ap- 
point a  receiver  within  the  Judicature  Act,  1873, 
s.  25,  sub-s.  8.  Pope,  In  re,  17  Q.  B.  D.  743 ; 
55  L.  J.,  Q.  B.  622  ;  65  L.  T.  369  ;  34  W.  R.  693 
-C.A 

Under  the  general  power  to  appoint  receivers 
given  by  the  Judicature  Act,  1873,  s.  26,  sub-s.  8, 
and  having  regard  to  Rules  of  Supreme  Court, 
1883,  Ord.  XL  1 1,  rr.  4  and  28,  the  court  has 
jurisdiction  to  enforce  a  judgment  for  payment 
of  money  into  court  by  a  defaulting  trustee,  by 
the  appointment  of  a  receiver  of  his  equitable 
interest  in  property  in  this  country  ;  and  order 
accordingly  where,  from  the  debtor  being  out  of 
the  jurisdiction,  service  of  a  writ  of  attachment 
could  not  be  effected.  Coney,  In  re,  Coney  v. 
Bennett,  28  Ch.  D.  993  ;  54  L.  J.,  Ch.  1130  ;  52 
L.  T.  961 ;  33  W.  R.  701— Chitty,  J. 

An  order  was  made  against  the  defendants  in 
an  action,  who  were  defaulting  trustees,  for  the 

Eyroent  of  money  into  court.  The  defendants 
ving  failed  to  comply  with  such  order,  an 
application  was  made  by  the  plaintiffs  that  a 
*rit  of  attachment  might  issue  against  them. 
At  the  defendants'  instance,  however,  the  court 
oude  an  order  allowing  payment  by  weekly  in- 
stalments. L.,  one  of  the  defendants,  had  made 
an  affidavit  on  that  occasion  stating  that  all  the 
property  he  possessed  was  the  furniture  in  his 
boose.  It  subsequently  transpired  that  L.  had 
executed  bills  of  sale  affecting  the  furniture ; 
but  that  the  plaintiffs  in  other  proceedings,  had 
successfully  disputed  the  validity  of  such  bills 
of  sale.  An  application  was  accordingly  made 
on  behalf  of  the  plaintiffs  for  the  appointment 
of  a  receiver  of  the  furniture  by  way  of  equit- 
able execution.  For  the  defendant  L.  it  was 
contended  that  the  legal  and  proper  remedy  of 
the  plaintiffs  was  by  sequestration,  and  that  the 
court  had  no  jurisdiction  to  appoint  a  receiver  : 
—Held,  that,  although  under  r.  4  of  Ord. 
XLIL  of  the  Rules  of  Court,  1883,  sequestration 
vas  the  appropriate  remedy,  yet  under  s.  25, 


sub-s.  8  of  the  Judicature  Act,  1873,  the  court 
had  jurisdiction  to  appoint  a  receiver  if  it  ap- 
peared just  or  convenient  so  to  do  ;  and  that,  m 
the  present  case,  it  was  just  and  convenient  to 
appoint  a  receiver,  and  that  an  order  must  be 
made  accordingly.  Whiteley  In  re,  Whiteley  v. 
Learoyd,  56  L.  T.  846— Kay,  J. 

Deceased's  Estate.]  —  The  Judicature  Act, 
1873,  s.  25,  sub-s.  8,  enables  any  judge  of  the 
High  Court  to  appoint  a  receiver  of  a  deceased's 
estate  (before  grant  of  probate,  or  administra- 
tion), notwithstanding  the  absence  of  lis  pen- 
dens ;  but  applications  for  any  such  order,  being 
on  the  way  to  probate  proceedings,  are  properly 
made  in  the  Probate  Division,  and  if  made  else- 
where will  not  be  encouraged.  Parker,  In  re, 
Dearing  v.  Brooks,  64  L.  J.,  Ch.  694— Chitty,  J. 

Mortgagee.]  —  A  legal  mortgagee,  being  in 
possession  of  the  mortgaged  property,  applied  to 
the  court  for  the  appointment  of  a  receiver : — 
Held,  that  although  the  mortgagee  might,  under 
the  Conveyancing  Act,  1881,  appoint  a  receiver 
without  coming  to  the  court,  it  was  more  desir- 
able, where  an  action  was  pending,  that  the 
appointment  should  be  made  by  the  court  under 
the  Judicature  Act,  1873.  TUlett  v.  Nixon,  26 
Ch.  D.  238  ;  53  L.  J.,  Ch.  199  ;  48  L.  T.  598  ;  32 
W.  R.  226— Pearson,  J. 

Under  8.  25,  sub-s.  8,  of  the  Judicature  Act, 
1873,  a  mortgagee  in  possession  is  entitled  to  the 
appointment  of  a  receiver,  notwithstanding  that 
he  has  been  paid  all  his  interest  and  costs  out  of 
rents  received  by  him  while  in  possession,  and 
that  he  has  surplus  rents  in  his  hands.  Mason 
v.  Westoby,  32  Ch.  D.  206 ;  55  L.  J.,  Ch.  507 ; 
54  L.  T.  526  ;  34  W.  R.  498— V.-C.B. 

Judicature  (Ireland)  Act,  8.  28,  sub-s.  8.] — 
The  3rd  section  of  19  &  20  Vict.  c.  77,  has  been 
repealed  by  the  28th  section  of  the  Judicature 
(Ireland)  Act,  sub-s.  8,  and,  therefore,  the  court 
may  appoint  a  receiver  on  foot  of  any  judgment 
mortgage,  notwithstanding  that  the  rental  of 
the  estate  is  less  than  1002.  per  annum.  The 
court  will,  under  special  circumstances,  appoint 
a  receiver  where  less  than  one  year's  interest  is 
due.  Martin's  Estate,  In  re,  13  L.  R.,  Ir.  43 — 
Land  Judges. 

In  an  action  to  recover  damages  for  obstruct- 
ing a  watercourse,  an'd  for  an  injunction,  the 
plaintiffs  obtained  a  verdict  for  nominal  damages. 
The  defendant  having  continued  the  acts  of 
obstruction  complained  of,  the  court  granted  an 
injunction.  Agnew  v.  McDowell,  14  L.  R.,  Ir. 
445— Ex.  D. 


ii.  Prerogative  Mandamus. — See  MANDAMUS. 
111.  Injunction.—^  INJUNCTION. 

iv.  Beoeiver. 
a.  In  what  Cases. 

Where    Interpleader    Issue    directed.]— An 

interpleader  issue  being  ordered  to  try  the  right 
to  goods  seized  in  execution,  the  court  or  a  judge 
may,  under  the  Judicature  Act,  1873,  s.  i25, 
sub-s.  8,  and  Ord.  LVII.  r.  15,  order  that,  {in- 
stead of  a  sale  by  the  sheriff,  a  receiver  and 


1455 


PRACTICE    AND    PLEADING. 


1456 


manager  of  the  property  be  appointed.    Howell 
v.  Dawson,  13  Q.  B.  D.  67— D. 

In  Partnership  Action*.]— See  Partnership. 

Receiver    appointed   by    way  of  Equitable 
Execution.]— See  Execution,  5. 

Appointment  of— Effect   on  Executor's  Re- 
tainer.]— See  Executor  and  Administrator, 

Under  Railway  Companies  Act.]— See  Bail- 
way. 

Action  by  Debenture  Holders.]  —See  Com- 
pany, IV.  3,  e. 

Application  for  after  Foreclosure  absolute.]— 
See  Mortgage,  VII.  l,  b. 

Appointment  by  Mortgagee.]— See  Mort- 
gage, VI.  2. 

Judgment  against  Harried  Woman— Separate 
Estate— Eemuneration.] —In  an  action  against 
a  married  woman  alleged  to  be  possessed  of 
separate  estate,  no  defence  was  delivered,  and 
the  master  found  that  she  was  entitled  to 
separate  property  vested  in  trustees  and  subject 
to  certain  charges.  The  plaintiff  was  appointed 
receiver  without  security  of  the  residue  of  the 
income  of  the  separate  estate,  after  payment  of 
the  prior  charges,  the  plaintiff  undertaking  to 
act  without  remuneration.  JP  Garry  v.  White* 
16  L.  R.,  Ir.  322— Q.  B.  D. 

Granted  before  Probate.]—  See  Moore,  In 
Goods  of,  ante,  col.  798. 


&.  The  Application. 

—  parte.]— Ex  parte  applications  for  a 
receiver  ought  not  to  be  granted  even  after 
judgment,  except  in  cases  of  emergency.  Lucas 
v.  Harris,  18  Q.  B.  D.  127  ;  56  L.  J.,  Q.  B.  15  ; 
55  L.  T.  685  ;  35  W.  R.  112— C.  A. 

Originating  Summons.  ]— Semble,  that  a  re- 
ceiver may  be  appointed  under  an  originating 
summons.     Gee  v.  Bell,  35  Ch.  D.  160  :  56  L  T 
305  ;  35  W.  R.  805— North,  J. 

Ixl  an  administration  action,  commenced  by 
originating  summons,  a  receiver  may  (in  a 
proper  case)  be  appointed  immediately  after 
the  service  of  the  summons  and  before  any  order 
for  administration  has  been  made.  Franche, 
In  re,  Drake  v.  Franche,  57  L.  J.,  Ch.  437  :  58 
L.  T.  305— North,  J. 

A  mortgagee  issued  a  writ  asking  for  the 
usual  order  for  foreclosure,  and  moved  for  the 
appointment  of  a  receiver,  and  on  the  motion 
being  heard,  a  receiver  was  appointed.  A  state- 
ment of  claim  was  delivered,  but  the  mortgagor 
having  become  bankrupt,  the  plaintiff  withdrew 
his  claim  for  payment :— Held,  that  the  plaintiff 
should  have  proceeded  by  originating  summons. 
The  court  made  the  usual  foreclosure  order,  but 
directed  the  taxing-master  to  allow  such  costs  as 
the  plaintiff  would  have  been  entitled  to  if  he 
had  proceeded  by  originating  summons  and  no 
more,  Barr  v.  Harding,  58  L.  T.  74  :  36  W.  R. 
216— Kay,  J. 


Servioe  of  Summons  on  Foreigner  out  of  Juris- 
diction. ] — See  Weldon  v.  Gounod,  post,  col. 
1483. 

Evidence  of  Property.] — Where  a  plaintiff 
obtained  judgment  and  issued  execution,  and 
the  sheriff  returned  nulla  bona,  the  conrt  will 
not  appoint  a  receiver  on  the  ground  that  since 
the  return,  the  defendant  has  been  found  to  be 
possessed  of  a  patent  the  value  of  which  did  not 
appear  from  the  evidence  before  the  court 
Smith  v.  Carter,  52  J.  P.  615— D. 

Form  of  Order— Security.]— Where  a  judg- 
ment creditor,  in  an  action  for  equitable  execu- 
tion, obtained  the  appointment  of  a  receiver  for 
the  purpose  of  creating  a  charge  upon  the 
debtor's  property  subject  to  prior  incumbrances, 
but  not  for  the  purpose  of  entering  into  posses- 
sion or  receiving  the  rents  and  profits,  the 
receiver  was  not  required  to  give  security,  the 
plaintiff  and  the  receiver  undertaking  not  to  act 
without  the  leave  of  the  court,  Hewett  t, 
Murray,  54  L.  J.,  Ch.  572 ;  52  L.  T.  380— V.-C.R 


y.   Practice. 

Payments  by — Receipts  to.] — A  receiver  i* 
only  justified  in  paying  the  person  named  in  the 
order  for  payment,  or  on  a  power  of  attorney 
duly  executed  by  him.  Express  authority  for 
payment  in  any  other  mode  must  be  shown  by 
the  receiver,  on  peril  of  being  disallowed  credit 
therefor  in  vouching  his  accounts.  The  solicitor 
having  carriage  of  the  proceedings  has  not,  as 
such,  and  in  the  absence  of  special  authority  in 
that  behalf,  power  to  give  a  valid  receipt  for 
moneys  ordered  to  be  paid  by  a  receiver  to  his 
client.  Browne's  Estate,  In  re,  19  L.  R.,  Ir.183 
— O.  A. 

What  he  can  Receive — Fund  in  Discretion  of 
Trustees — Order  against  Trustees  for  Payment] 
— An  order  was  made,  in  an  action  in  a  count? 
court,  appointing  a  receiver  to  receive  the  interest 
of  a  sum  of  money  in  the  hands  of  trustees,  and 
ordering  the  trustees  to  pay  a  specific  amount 
out  of  the  interest  to  the  receiver  half-yearly 
until  the  judgment  in  the  action  should  be  satis- 
fied. The  trustees  were  trustees  of  a  will,  by 
which  they  were  directed  to  set  apart  and  invest 
the  sum  in  question,  and  were  authorised,  at 
their  absolute  discretion,  from  time  to  time,  and 
at  such  time  or  times  as  they  should  think 
proper,  to  pay  or  apply  the  whole  or  any  part  of 
the  income  to  or  for  the  benefit  of  the  judgment 
debtor  in  such  a  manner  in  all  respects  as  they 
should  think  proper.  The  trustees  applied  for  a 
prohibition  : — Held,  that  as  it  depended  on  the 
discretion  of  the  trustees  whether  anything 
should  be  paid  to  the  judgment  debtor,  the  re- 
ceiver could  not  be  entitled  to  receive  the  interest 
in  their  hands,  and  that  an  order  for  payment 
could  not  be  made  against  the  trustees,  who 
were  strangers  to  the  action,  and  therefore  the 
county  court  judge  had  exceeded  his  jurisdiction, 
and  the  proper  remedy  was  by  prohibition.  Meg. 
v.  Lincolnshire  County  Court  Judge,  20  Q.  B.  D. 
167  ;  57  L.  J.,  Q.  B.  186  ;  58  L.  T.  54  ;  37  W.  R 
174— D. 

Remuneration  —  Partnership  Assets.]  —  See 
Prior  v.  Bagster,  ante,  col.  1336. 


1457 


PRACTICE    AND    PLEADING. 


1458 


JTeglect  of  Duty — Fees  —  Discharge  — 

Costs.] — When  a  receiver  was  discharged,  owing 
to  gross  dereliction  of  duty,  the  order  disallowed 
his  fees  and  poundage  on  all  accounts  not  passed 
within  the  prescribed  time,  and  directed  him  to 
pay  interest  on  the  balance  (if  any)  from  time 
to  time  in  his  hands,  and  to  pay  the  costs  of  the 
motion  to  discbarge  him,  of  his  own  discharge, 
and  of  appointing  his  successor.  St.  George's 
Estate,  In  re,  19  L.  R.,  Ir.  566— Monroe,  J. 

Costs  of— Priority.] — See  Batten  v.  Wedg- 
wood Coal  and  Iron  Company \  ante,  col.  431. 

Objections  to  —  Action  for.]  —  Where 

items  have  been  included  in  a  receiver's  bill  of 
costs,  which  are  charges  for  work  done  outside 
the  scope  of  the  receivership,  objection  must  be 
made  to  their  being  included  in  the  taxation  at 
the  time  ;  and  no  action  will  lie  for  the  subse- 
quent recovery  of  the  money  due  on  such  items. 
Terry  v.  Dubois,  32  W.  R.  415— D. 

Change  of  Receiver — Bankruptcy  of  Mort- 
gagor.]— A  receiver  and  manager  had  been  ap- 
pointed on  an  ex  parte  application  by  the  plain- 
tiff in  a  foreclosure  action  under  a  mortgage  of 
brewery  premises.  The  mortgagor,  the  defen- 
dant, afterwards  became  bankrupt  on  his  own 
petition.  The  official  receiver  opposed  a  motion 
by  the  plaintiff  for  the  continuance  of  the 
original  receiver  and  manager,  contending  that 
he  ought  to  be  substituted  : — Held,  that  an  order 
most  be  made  confirming  the  previous  appoint- 
ment, and  continuing  the  person  then  appointed 
as  receiver  of  the  rents  and  profits  of  the 
premises  comprised  in  the  mortgage,  and  as 
manager  of  the  business*  he  to  be  at  liberty  to 
ose  any  of  the  vats,  fixed  motive  machinery,  and 
other  property  comprised  in  the  mortgage,  but 
nothing  else.  Deacon  v.  Arden.  50  L.  T.  584— 
Pearson,  J. 

Substitution  of  Liquidator  on  Winding- 
op  of  Company.]- See  ante,  col.  422. 

Action  to  restrain  Receiver  appointed  in 
another  Aotion.] — A  person  who  is  prejudiced 
by  the  conduct  of  a  receiver  appointed  in  an 
action  by  way  of  equitable  execution,  ought  not, 
without  leave  of  the  court,  to  commence  a  fresh 
action  to  restrain  the  proceedings  of  the  receiver, 
even  though  the  act  complained  of  was  beyond 
the  scope  of  the  receiver's  authority,  but  ought 
to  make  an  application  for  such  relief  as  he  is 
entitled  to  in  the  action  in  which  the  receiver 
was  appointed.  Searle  v.  Cheat,  25  Ch.  D.  723  ; 
53  L.  J.,  Ch.  606  ;  60  L.  T.  470  ;  32  W.  R.  397— 
C.A. 

Interference  with— Contempt  of  Court.]— See 
tidnore  v.  Smith,  ante,  col.  1338. 

9.  PLEADINGS— See  post,  col.  1497  et  seq. 


10.  THIRD  PARTIES— NOTICE  CLAIMING 
CONTRIBUTION  OR  INDEMNITY. 

a.  In  what  Cases. 

Xust  arise  from  Express   or   Implied  Con- 
tract—Right to  Damages  Insufficient]— A  land 


company  had  an  agreement  from  B.  to  demise 
to  them  certain  lands  for  building  purposes,  the 
agreement  to  be  voidable  as  to  all  land  not 
actually  demised  if  the  buildings  were  not  com- 
pleted within  a  certain  time.  B.  agreed  to  sell 
part  of  the  land  to  a  railway  company  subject 
to  the  building  agreement.  The  time  for  build- 
ing having  expired  without  the  buildings  being 
erected,  the  railway  company  took  possession 
and  treated  the  building  agreement  as  at  an 
end.  The  land  company  thereupon  brought  their 
action  against  the  railway  company,  alleging 
that  an  agreement  had  been  made  between  them 
and  B.  for  extension  of  the  time,  and  that  the 
railway  company  bought  with  notice  of  it,  and 
seeking  to  restrain  the  railway  company  from 
interfering  with  the  land  till  they  compensated 
the  land  company,  pursuant  to  the  Lands  Clauses 
Act.  The  railway  company  applied  for  leave  to 
serve  B.  with  a  third-party  notice  on  the  ground 
that  he  sold  to  them  free  from  all  incumbrances, 
except  the  building  agreement,  and  without 
notice  of  the  extension  of  time,  and  was  bound 
to  indemnify  them  against  any  claim  the  land 
company  could  establish  : — Held,  that  in  order 
to  bring  a  case  within  Ord.  XVI.  r.  48,  it  is  not 
enough  that  if  the  plaintiff  succeeds  the  de- 
fendant will  have  a  claim  for  damages  against  the 
third  party,  but  the  defendant  must  have  against 
the  third  party  a  direct  right  to  indemnity  as 
such,  which  right  must — generally,  if  not  always 
— arise  from  contracts  express  or  implied,  and 
that  here  there  was  no  ground  for  implying  such 
a  contract.  Birmingham  Land  Co.  v.  London 
and  North-Western  Railway,  34  Ch.  D.  261 ; 
54  L.  J.,  Ch.  956 ;  55  L.  T.  699  ;  35  W.  R.  173 
— C.A. 

Marine  Insurance— Underwriters — Suing  and 
Labouring  Clause.] — The  defendant  insured  his 
ship  under  a  policy  containing  the  usual  suing 
and  labouring  clause.  In  an  action  to  recover 
for  work  alleged  to  have  been  done  and  expenses 
incurred  by  the  plaintiffs  for  the  defendant,  at 
his  request,  in  respect  of  attempting  to  save  the 
ship  during  the  continuance  of  the  policy : — 
Held,  that  the  defendant  was  not  entitled  to 
bring  in  the  underwriters  as  third  parties  under 
Ord.  XVI.  r.  48,  because  they  did  not,  by  the 
suing  and  labouring  clause,  contract  to  in- 
demnify the  defendant  in  respect  of  any  con- 
tract made  by  him  with  the  plaintiffs.  Johnston 
v.  Salvage  Association,  19  Q.  B.  D.  458  ;  67  L.  T. 
218  ;  36  W.  R.  56  ;  6  Asp.  M.  C.  167— C.  A. 

Restrictive  Covenant — Constructive  Hotice.] 
— In  1857,  A.  granted  a  lease  of  a  house  for  a 
term  of  ninety-three  years,  with  a  restrictive 
covenant  against  the  user  of  the  house  for  any 
art,  trade,  or  business.  The  term  granted  by  the 
lease  became  vested  in  B.,  and  in  Oct.  1883,  B. 
granted  a  lease  of  the  house  to  C.  for  twenty- one 
years,  with  an  express  permission  that  he  might 
use  the  house  in  his  profession  of  teaching  music 
and  singing,  and  with  the  usual  covenant  for 
quiet  enjoyment.  There  was  constructive  notice 
of  the  original  lease  in  the  under-lease,  but  C. 
had  no  personal  knowledge  or  notice  of  the  re- 
strictive covenant.  A  breach  of  this  covenant 
having  been  committed  by  C,  the  devisees  in 
trust  of  A.  brought  an  action  against  B.  and  C, 
claiming  an  injunction  and  damages.  By  his 
defence  C.  claimed  to  be  indemnified  by  B. 
against  all  expenses  and  damages  occasioned  by 


1459 


PRACTICE    AND    PLEADING. 


1460 


the  breach  of  the  covenant  for  quiet  enjoyment, 
and  served  a  third- party  notice  upon  B.,  to  which 
he  appeared  : — Held,  that  C.  was  not  entitled  to 
any  relief  against  his  co-defendant  B.,  inasmuch 
as  the  claim  was  not  one  for  "  contribution  or 
indemnity "  within  the  meaning  of  rule  55. 
Tritton  v.  Bankart,  56  L.  J.,  Ch.  629  ;  56  L.  T. 
306  ;  36  W.  R.  474— Kekewich,  J. 

Against  Defaulting  Trustee.] — A.  and  B.  were 
trustees  of  the  marriage  settlement  of  X.  and  Y.; 
some  of  the  investments  were  sold  and  the  pro- 
ceeds placed  to  the  credit  of  A.,  who  advanced 
the  moneys  in  breach  of  trust  to  the  husband  X.; 
in  an  action  commenced  by  the  children  of  X. 
and  T.  against  A.  and  B.  for  such  breaches  of 
trust,  A.  and  B.  gave  each  other  cross  notices  of 
claim  for  contribution  : — Held,  that  Ord.  XVI. 
r.  55,  enabled  the  court  to  make  an  order  for 
contribution  in  such  a  case.  Sawyer  v.  Saitryer^ 
28  Ch.  D.  601— Chitty,  J. 

Misrepresentation  on  Contract  for  Bale — 
Auctioneer.] — An  action  by  a  vendor  against  the 
purchaser  of  a  house  and  premises,  and  the 
auctioneer  who  advertised  and  sold  them,  for 
specific  performance  of  the  contract  or  damages. 
The  purchaser  stated  that  he  was  induced  to 
purchase  the  property  in  consequence  of  the  ad- 
vertisement in  the  newspapers  inserted  by  the 
auctioneer,  representing  that  the  purchase-moneys 
would  be  allowed  to  remain  on  mortgage.  The 
representation  was  alleged  to  have  been  un- 
authorised, and  the  purchaser  applied  by  sum- 
mons under  Rules  of  Supreme  Court,  1883, 
Ord.  XVI.  r.  55,  for  leave  to  serve  his  co-defen- 
dant, the  auctioneer,  with  a  notice  claiming  in- 
demnity from  him  against  the  claim  of  the 
vendor : — Held,  that  this  was  not  a  case  for 
indemnity  within  r.  55,  and  that  the  summons 
must  be  dismissed.  Pontifex  v.  Foord  (infra) 
followed.  Catton  v.  Bennett,  26  Ch.  U.  161  ;  53 
L.  J.,  Q.  B.  685  ;  50  L.  T.  383  ;  32  W.  R.  485— 
Kay,  J. 

Covenant   to   Repair  —  Underlease*.]  —  The 

plaintiff  sued  the  defendant  for  breach  of  a 
covenant  to  repair  contained  in  a  lease  of  a 
dwelling-house  for  a  term  of  twenty-one  years  I 
from  Michaelmas,  1861.  The  defendant  ob- ' 
tained  leave  to  serve,  and  served  a  third-party 
notice,  claiming  contribution  or  indemnity  from  j 
a  sub-lessee  to  whom  he  had  let  the  premises 
from  Midsummer,  1869,  for  the  remainder  of  the 
original  term,  less  ten  days.  The  under-lease 
contained  a  covenant  to  repair,  which  was  in 
terms  precisely  similar  to  those  of  the  covenant 
in  the  original  lease,  and  for  breach  of  which  the 
defendant  claimed  relief  against  the  sab-lessee  : 
— Held,  that,  inasmuch  as  the  terms  of  the  cove- 
nant to  repair  must  in  each  case  be  construed 
with  reference  to  the  age  and  character  of  the 
premises  at  the  time  of  the  demise,  the  covenant 
in  the  under-lease  could  not  be  construed  as  a 
covenant  to  indemnify  the  defendant  against  or 
to  perform  the  covenant  in  the  original  lease ; 
that  the  defendant's  claim  was  not  one  for 
contribution  or  indemnity  from  the  third  party 
within  Ord.  XVI.  r.  52,  and  that,  therefore,  no 
directions  as  to  trial  could  be  given  under  that 
rule.  Pontifex  v.  Foord,  12  Q.  B.  D.  152  ;  63 
L.  J.,  Q.  B.  321 ;  49  L.  T.  808 ;  32  W.  R.  316 
— D. 


Damage  to  Cargo— Charterer  against  Owner 
—Warranty.] — Where  a  defendant  is  not  entitled 
to  claim  contribution  against  a  person  not  a 
party  to  the  action,  he  can  only  be  entitled, 
under  Ord.  XVI.  r.  48,  to  issue  a  third-party 
notice  to  such  person,  where  under  a  contract, 
expressed  or  implied,  he  is  entitled  to  indemnity 
over  against  him.  Therefore,  where  the  defen- 
dants were  sued  for  damages  to  the  plaintiffs' 
goods  while  on  board  a  vessel  of  the  defendants 
on  a  certain  voyage,  by  reason  of  the  vessel 
being  not  seaworthy  for  the  voyage  : — Held, 
that  the  defendants  were  not  entitled  to  a  third* 
party  notice,  under  Ord.  XVI.  r.  48,  to  the 
persons  of  whom  the  defendants  had  hired  the 
vessel  with  a  warranty  that  she  was  tight, 
staunch,  strong,  and  fitted  for  the  service. 
Speller  v.  Bristol  Steam  Navigation  Company; 
13  Q.  B.  D.  96  ;  53  L.  J.,  Q.  B.  322 ;  50  L.  T. 
419  ;  32  W.  R.  670  ;  5  Asp.  M.  C.  228— C.  A. 

Forged  Transfer  of  Shares — Transferee.  J — 
The  plaintiff,  who  was  the  owner  of  stock  in  a 
public  company  registered  in  her  name,  ascer- 
tained that  it  had  been  transferred  to  F.  by 
virtue,  as  she  alleged,  of  a  forged  transfer.  She 
brought  an  action  against  the  company  to  hare 
her  name  reinstated  in  the  books  of  the  com- 
pany. The  company  obtained  leave  to  serve  F. 
with  a  claim  for  indemnity  : — Held,  without 
deciding  that  the  claim  for  indemnity  was 
valid,  that  leave  to  serve  F.  was  rightly  given. 
Speller  v.  Bristol  Steam  Navigation  Company 
(13  Q.  B.  D.  96),  distinguished.  Carshort  v. 
North-Eastern  Railway,  29  Ch.  D.  344  ;  64 
L.  J.,  Ch.  760 ;  52  L.  T.  232 ;  33  W.  R.  420- 
C.A. 

Mortgage  of  Policy  of  Insurance — Valid  Dis- 
charge to  Company — Joinder  of  Mortgagor.]— 
M.,  a  married  woman,  on  the  6th  November, 
1879,  effected  a  policy  of  insurance  on  her  own 
life  for  3,0002.  M.  and  her  husband,  on  the  19th 
of  October,  1880,  mortgaged  the  policy  to  T^  to 
secure  the  repayment  of  2,5342.  7*.,  with  interest 
at  62.  per  cent.  In  the  mortgage  deed  there  was 
a  power  of  attorney  by  M.  and  her  husband  to 
T.,  but  there  was  not  any  special  receipt  clause 
empowering  T.  to  give  a  valid  discharge  to  the 
assurance  society.  The  deed  also  contained  a 
provision  that  if  the  covenants  were  fulfilled, 
T.  should  not  call  in  the  money  before  the  1st 
of  May,  1890.  T.  gave  notice  to  the  assurance 
society  of  the  mortgage.  M.  died,  and  probate 
of  her  will  was  granted  to  her  husband.  At  the 
date  of  her  death  2,7622.  12#.  6d.  was  doe  on  the 
policy,  and  there  was  due  to  T.,  for  principal 
and  interest,  2,6187.  18*.  7d.,  besides  a  sum  of 
2812.  for  costs  due  to  T.  as  solicitor  for  M.  and 
her  husband.  T.  called  upon  the  insurance  com- 
pany to  pay  him  the  whole  of  the  moneys  due 
on  the  policy,  but  they  refused  to  do  so  unless 
M.'s  husband,  as  her*  personal  representative, 
joined  in  the  receipt,  which  he  declined  to  do, 
except  upon  terms  which  T.  rejected ;  and  the 
company  having  persisted  in  their  refusal,  T. 
brought  an  action  against  them,  and  the  com- 
pany moved  for  leave  to  bring  in  M.'s  husband 
as  a  third  party  : — Held,  that  the  company  was 
entitled  to  have  M.'s  husband  brought  before  the 
court,  and  that  they  should  be  at  liberty  to  lodge 
in  court  the  amount  due  on  the  policy.  Tench 
v.  Bykyn,  18  L.  Rf.,  Ir.  46— Q.  B.  D. 


1461 


PKACTICE    AND    PLEADING. 


1462 


Indemnity  after  Service  of  Writ.]— Leave 
may  be  given  to  a  defendant  to  serve  notice  of 
claim  for  indemnity  on  a  third  party,  under 
Roles  of  Supreme  Court,  1883,  Ord.  XVI.  r.  48, 
whether  the  indemnity  has  been  given  after  or 
before  action  brought.  Edison  Electric  Light 
Company  v.  Holland,  33  Ch.  D.  497  ;  56  L.  J., 
Ch.  124 ;  55  L.  T.  687  ;  36  W.  R.  178— V.-C.  B. 


b.  Pbactice. 

service  of  Votioe  out  of  Jurisdiction.]— By 
Old.  XL  r.  1,  service  out  of  the  jurisdiction  of 
a .  .  .  notice  of  a  writ  of  summons  may  be 
allowed  by  the  court  or  a  judge  whenever  .  .  . 
(g)  any  person  out  of  the  jurisdiction  is  a  neces- 
sary or  proper  party  to  an  action  properly 
brought  against  some  other  person  duly  served 
within  the  jurisdiction  : — Held,  that  Ord.  XI. 
*• }  fe)»  does  not  apply  to  service  out  of  the 
jurisdiction  of  a  third-party  notice  on  a  third 
party  domiciled  or  ordinarily  resident  in  Scot- 
land. Speller  v.  Bristol  Steam  Navigation 
Ompany,  supra. 

Leave  whether  neceeeary— To  Co-defendant.] 
— Under  r.  56  of  Ord.  XVI.,  a  defendant  need 
not  obtain  the  leave  of  the  court  or  a  judge 
before  issuing  to  a  co-defendant  a  notice  claim- 
ing contribution  or  indemnity  from  him.  But  it 
wOl  be  open  to  the  co-defendant,  after  he  has 
been  served  with  the  notice,  to  move  to  set  aside 
the  service.  Towse  v.  Loveridge,  25  Ch.  D.  76  ; 
53  L.  J.,  Ch.  499 ;  49  L.  T.  466  ;  32  W.  R.  151— 
Pearson,  J. 

Application  for  Leave— Time— Delay.]— An 

application  for  a  defendant  for  leave  to  issue  a 
third-party  notice  under  rule  48  of  Ord.  XVI. 
of  the  Rules  of  Court,  1883,  should  be  made 
promptly ;  the  time  contemplated  by  the  Order 
as  that  within  which  the  application  is  to  be 
made  being,  as  a  general  rule,  within  the  time 
limited  for  delivering  the  defence,  and  at  the 
latest  before  the  pleadings  are  closed.  Birming- 
**»  Land  Company  v.  London  and  North- 
Western  Railway,  56  L.  T.  702— Chitty,  J. 

Prints  for  Consideration  of  Court.] — On  the 
application  for  leave  the  court  will  not  go  into 
»ny  question  as  to  the  merits  of  the  action  or 
the  validity  of  the  claim  for  indemnity.  Edison 
Eectric  Light  Company  v.  Holland,  33  Ch.  D. 
4W ;  56  L.  J.,  Ch.  124  ;  55  L.  T.  587;  35  W.  R. 
17&-V.-C.  B. 

In  giving  leave  to  a  defendant  to  serve  notice 
of  a  claim  for  contribution  or  indemnity  on  a 
third  party,  the  court  will  not  consider  whether 
the  claim  is  a  valid  one,  but  only  whether  the 
claim  is  bona  fide,  and  whether  if  established  it 
will  result  in  contribution  or  indemnity.  Car* 
*hore  v.  North- Eastern  Railway,  supra. 

Greunstanees  under  whioh  Third  Parties 
let  added  ma  eo-Defendanti.] — An  action  was 
brought  against  a  railway  company  to  compel 
them  to  re-transfer  stock  which  the  plaintiffs 
alleged  to  have  been  transferred  out  of  their 
names  by  means  of  forged  transfer  deeds.  The 
transferees  were  not  made  parties,  but  the  com- 
pany, under  Ord.  XVI.  r.  48,  served  them  with 


third-party  notices,  claiming  indemnity.  The 
company  in  their  defence,  Bet  up  all  the  grounds 
of  defence  that  could  be  relied  on  against  the 
plaintiff's  claim.  Some  of  the  third  parties 
desired  to  defend,  and  liberty  was  given  to  them 
to  appear  at  the  trial  and  take  such  part  as  the 
judge  should  direct.  Two  of  them  appealed 
from  this  order,  asking  that  they  might  be  at 
liberty  to  deliver  a  defence,  appear  at  the  trial, 
and  put  in  evidence,  and  cross-examine  the  plain- 
tiff's witnesses : — Held,  that  the  third  parties 
were  not,  under  the  old  practice,  necessary 
parties  to  the  action,  and  that  as  the  company 
had  raised  all  proper  grounds  of  defence,  and 
was  bona  fide  defending  the  action,  the  order 
gave  the  third  parties  all  reasonable  protection, 
and  that  the  appeal  must  be  dismissed,  for  that 
while,  on  the  one  hand,  the  court  ought  to  take 
care  that  the  third  parties  had  fall  opportunity 
of  seeing  that  the  questions  in  the  cause  were 
fairly  tried,  it  ought,  on  the  other  hand,  to  take 
care  that  the  plaintiffs  were  not  embarrassed 
and  put  to  expense  by  unnecessarily  allowing 
persons,  who  were  not  necessary  parties  to  the 
action,  to  take  all  the  same  steps  as  if  they  had 
been  made  defendants.  Barton  v.  London  and 
North-  Western  Railway,  38  Ch.  D.  144  ;  57  L.  J., 
Ch.  676  ;  59  L.  T.  122  ;  36  W.  R.  452— C.  A. 

What  Defences  open  to  Third  Party.] — When  a 
third  party  has  been  given  leave  to  defend  under 
Ord.  XV I.  r.  53,  he  is  at  liberty  to  raise  any 
defences  which  the  defendant  might  have  raised 
against  the  plaintiff's  claim,  although  the  defen- 
dant may,  by  admission  or  otherwise,  have 
debarred  himself  from  raising  any  particular 
defence.  Callcndar  v.  Wall ingf ord,  53  L.  J.t 
Q.  B.  569  ;  32  W.  R.  491— D. 

Application  for  directions  always  necessary.  ] 
— Where  a  defendant  serves  a  co-defendant  with 
a  third-party  notice  but  omits  to  take  out  a 
summons  for  directions  under  Ord.  XVI.  r.  52, 
he  will  not  be  entitled  to  any  relief  as  against 
him.  Tritton  v.  Bankart,  56  L.  J.,  Ch.  629; 
56  L.  T.  306 ;  35  W.  R.  474— Kekewich,  J. 


Non-admission   of  Liability   by   Third 


Party — Liberty  to  appear  at  Trial.] — Where  in 
an  action  for  damages  in  respect  of  alleged 
injury  to  the  plaintiff's  premises,  the  defendant, 
claiming  to  be  entitled  to  indemnity  over  against 
a  person  not  a  party  to  the  action,  had  served 
such  person  with  a  third-party  notice  under 
Ord.  XVI.  r.  48,  and  he  had  appeared  thereto, 
the  court,  upon  a  summons  for  directions  taken 
out  by  the  defendant,  gave  the  third  party, 
who  did  not  admit  his  liability,  liberty  to 
appear  at  the  trial  of  the  action  and  take  such 
part  as  the  judge  should  direct,  and  be  bound  by 
the  result,  and  ordered  the  question  of  his 
liability  to  indemnify  the  defendant  to  be  tried 
at  the  trial  of  the  action,  but  subsequent  thereto. 
In  case  a  third  party  served  with  notice  appears 
and  admits  his  liability  to  indemnify,  the  court 
will  give  him  leave  to  defend  the  action.  Coles 
v.  Civil  Service  Supply  Association,  26  Ch.  D. 
529  ;  63  L.  J.,  Ch.  638  ;  50  L.  T.  114  ;  32  W.  R. 
407— Kay,  J. 

Judgment  on  Application — Against  Married 
Women.]  —  Under  Ord.  XVI.  r.  52,  judgment 
against  a  third  party  who  has  appeared  pursuant 
to  a  third-party  notice,  but,  at  the  hearing  of 


1468 


PRACTICE    AND    PLEADING. 


1464 


an  application  by  the  defendant  for  directions, 
declines  to  state  any  defence,  may  be  ordered,  if 
the  judge  is  not  satisfied  that  there  is  any 
question  proper  to  be  tried  as  to  the  liability  of 
the  third  party.  The  rule  is  consistent  with  the 
Judicature  Act,  1873,  s.  24,  sub-s.  3,  and  the 
Judicature  Act,  1875,  s.  24,  and  is  not  ultra 
vires.  Such  judgment  under  the  rule  may,  since 
the  Married  Women's  Property  Act,  1882,  be 
ordered  against  a  married  woman,  third  party, 
as  a  feme  sole,  declaring  her  separate  estate 
chargeable  even  in  respect  of  a  liability  created 
before  that  act.  Gloucestershire  Banking  Com- 
pany v.  Phillips,  12  Q.  B.  D.  533  ;  53  L.  J., 
Q.  B.  493  ;  50  L.  T.  3G0 ;  32  W.  R.  522— D. 

Bight  of  Third  Party  to  Judgment  before 
Payment.] — A  defendant  who  is  entitled  to  an 
indemnity  from  a  co-defendant  upon  a  special 
agreement  is  entitled  to  sign  judgment  against 
his  co-defendant  for  the  amount  of  his  (the 
defendant's)  liability  before  he  has  actually  paid 
anything  in  discharge  of  it.  English  and 
Scottish  Trust  Company  v.  Flatau,  36  W.  R. 
238— D. 

Counterclaim  by  Third  Party  against  Plain- 
tiff]— The  court  has  no  power  to  give  a  third 
party,  who  has  been  served  with  notice  by  a 
defendant  under  Ord.  XVI.  r.  48,  leave  to  file  a 
counterclaim  against  the  original  plaintiff. 
Eden  v.  Weardale  Iron  and  Coal  Company, 
28  Ch.  D.  333  ;  54  L.  J.,  Ch.  384  ;  51  L.  T.  726  ; 
33  W.  R.  241— G.  A. 

Disoovery  by  and  against.]— See  Discovery, 
I.  1 ;  II.  1. 

Costs  of  Third  and  Fourth  Parties.] — D.  cove- 
nanted by  deed  that  he  and  his  heirs  or  assigns 
would  pay  S.  a  royalty  on  coals,  which  should  be 
got  from  land  purchased  from  8.,  and  which 
should  be  shipped  for  sale.  D.  did  not  execute 
the  deed.  In  an  action  on  the  covenant,  D.'s 
representative  brought  in  his  assigns  as  third 
parties,  and  they  brought  in  fourth  parties : — 
Held,  that  there  was  no  jurisdiction  to  throw  the 
costs  of  the  third  and  fourth  parties  on  the 
plaintiffs.  Witham  v.  Vane,  32  W.  R.  617— 
fl.  L.  (E.)    Affirming,  44  L.  T.  718— C.  A. 


11.    DEMURRER,  PROCEEDINGS 
IN  LIEU  OF. 

Effect  of  Judicature  Acts  and  Rules.] — De- 
murrers are  in  form  abolished,  but  Ord.  XXV. 
takes  notice  of  three  forms,  in  which  the  object 
of  demurrers  may  be  obtained  ;  first,  by  raising 
on  the  pleadings  a  question  of  law,  so  that  the 
parties  may  have  it  decided  quickly  ;  secondly, 
by  raising  the  question  on  a  pleading  whether  it 
discloses  any  reasonable  cause  of  action  or 
answer,  in  which  case  the  court  may  order  the 
pleading  to  be  struck  out,  not  necessarily  dis- 
posing of  the  whole  action  ;  and,  thirdly,  in  case 
an  action  or  defence  is  shown  by  the  pleadings  to 
be  frivolous  or  vexatious,  then  the  court  or  a 
judge  can  dismiss  the  whole  action, or  order  it  to 
be  stayed,  or  judgment  to  be  entered  accordingly 
as  may  be  just.  Burstall  v.  Beyfus,  26  Ch.  D. 
35 ;  53  L.  J.,  Ch.  565  ;  50  L.  T.  542  ;  32  W.  R. 
418— Per  Selborne,  L.  C. 


Jurisdiction  of  Court.]  —  Ord.  XXV.  r.  4. 
enables  the  court  to  deal  in  an  easy  and  summary 
manner  with  demurrable  actions,  and  also  affirms 
the  inherent  power  of  the  court  to  protect  itself 
from  the  abuse  of  its  procedure  by  the  bringing 
of  frivolous  and  vexatious  actions.  Metropolitan 
Bank  v.  Pooley,  10  App.  Cas.  210  ;  54  L.  J.,Q.  B. 
449  ;  53  L.T.  163  ;  38  W.  R.  709  ;  49  J.  P.  75*- 
fl.  L.  (E.). 

The  Probate  Division  has,  apart  from  Ord. 
XXV.  r.  4,  an  inherent  jurisdiction,  in  common 
with  other  courts,  to  stay  proceedings  which  are 
frivolous  and  vexatious,  and  an  abuse  of  the 
process  of  the  court.  Willis  v.  Btaucktunv 
(Earl),  11  P.  D.  59  ;  55  L.  J.,  P.  17 ;  54  L.  T. 
185  ;  34  W.  R.  357— C.  A. 

Based  on  Pleadings,  not  on  Evidence.]— Appli- 
cations under  Ord.  XXV.  r.  4,  must  be  tried 
upon  the  allegations  contained  in  the  pleadings, 
and  evidence  in  support  of  the  applicant's  esse 
is  not  admissible.  Jtepublie  of  Peru  v.  Peruvian 
Guano  Company,  36  Ch.  D.  489  ;  56  L.  J..  Ch. 
1081 ;  57  L.  T.  337  ;  36  W.  R.  217— Chitty,  J. 

When  Jurisdiction  exercised.]  —  Although 
proceedings  under  rr.  2  and  4  of  Ord.  XXV. 
take  the  place  of  demurrers  in  the  sense  that 
the  court  is  enabled,  when  it  sees  no  reasonable 
ground  of  action  or  defence,  to  put  an  end  to 
the  action  or  defence,  the  court  is  not  bound  to 
regard  the  case  with  the  same  strictness  as  under 
the  old  practice  on  demurrer,  the  court  now 
having  more  regard  to  the  reasonableness  or 
unreasonableness  of  the  claim  or  defence. 
Dadswell  v.  Jacobs,  34  Ch.  D.  278  ;  57  L.  J..  Ch. 
233  ;  55  L.  T.  857  ;  35  W.  R.  261— C.  A. 

A  pleading  will  not  be  struck  out  under  Ord. 
XXV.  r.  4,  on  the  ground  that  it  discloses  do 
reasonable  cause  of  action,  unless  it  is  frivolous. 
Demurrers  have  not  been  abolished  only  in  name, 
and  the  above  rule  is  not  to  be  construed  so  as  to 
allow  applications  under  it  to  take  their  place. 
Bat  thy  any,  In  re,  Batthyany  v.  Walford^  32 
W.  R.  379— Chitty,  J. 

The  power  given  by  Ord.  XXV.  r.  4,  of  order- 
ing any  pleading  *'  to  be  struck  out  on  the  ground 
that  it  discloses  no  reasonable  cause  of  action,'* 
will  be  exercised  where  in  the  opinion  of  the 
court,  there  is  no  reasonable  prospect  that  the 
case  raised  by  the  pleading  will  succeed  at  the 
hearing  of  the  action  ;  secus.  where  the  pleading, 
though  it  might  under  the  former  practice  have 
been  ojxjn  to  demurrer,  presents  a  substantial 
case.  Uepuhlie  of  Peru-  v.  Peruvian  Guano 
Company,  supra. 

Claim  Disclosing  no  Reasonable  Cause  of  Action 
—Malicious  Prosecution.] — The  plaintiff  was 
charged  by  the  defendants  under  6  &  7  Vict, 
c.  96,  s.  4.  with  having  published  a  libel  know- 
ing the  same  to  be  false.  At  the  preliminary 
stage  of  the  proceedings  the  charge  under  a  4 
was  withdrawn,  but  the  prosecution  for  the 
minor  offence  under  s.  5  of  the  same  act  was 
continued,  and  the  plaintiff  was  committed  for 
trial  under  the  5th  section.  An  indictment  was 
preferred  against  the  plaintiff  under  the  4th 
section,  and  the  jury  found  that  the  plaintiff 
issued  the  libel  believing  it  to  be  true.  This 
verdict  was  held  to  be  one  of  guilty  under  the 
5th  section,  and,  after  respite  of  judgment  and 
argument,  the  plaintiff  was  sentenced  to  two 
months'    imprisonment    without   hard    labour. 


1465 


PRACTICE    AND    PLEADING. 


1466 


The  plaintiff  brought  his  action  for  malicious 
pretention  under  the  4th  section  of  the  above 
act,  and  set  forth  the  above  facts  in  his  state- 
ment of  claim,  in  which  he  alleged  that  the 
finding  of  the  jury  was  an  acquittal  under  the 
4th  section,  under  which  he  had  been  indicted. 
The  defendants  applied  to  hare  the  statement  of 
claim  struck  out  as  not  disclosing  any  reasonable 
cause  of  action  : — Held,  that  the  statement  of 
claim  ought  not  to  be  struck  out  as  disclosing  no 
reasonable  ground  of  action,  and  that  where  a 
statement  of  claim  discloses  some  ground  of 
action,  the  mere  fact  that  the  plaintiff  is  not 
likely  to  succeed  on  it  at  the  trial  is  no  ground 
for  its  being  struck  out.  Boaler  v.  Holder,  54 
L.  T.  298— D. 

No  action  can  be  brought  by  a  bankrupt  for 
maliciously  procuring  his  adjudication  so  long 
h  the  adjudication  itself  has  not  been  set  aside. 
Such  an  action  may  be  dismissed  as  frivolous 
and  vexatious  on  summons  under  Ord.  XXV. 
r.  4.    Metropolitan  Bank  v.  Pooley,  supra. 

Entry  on  Plaintiff's  Land— Speoino  Pcr- 
>.] — A  plaintiff  set  out  certain  building 
agreements  in  his  statement  of  claim,  and  alleged 
that  by  reason  of  the  defendant  having  w  rongf ully 
entered  into  possession  of  the  plaintiffs  land  and 
building  materials,  he  had  been  unable  to  carry 
out  his  agreements  and  had  thereby  suffered  loss. 
The  plaintiff  claimed  specific  performance  of  the 
agreements  and  damages.  A  motion  under  Ord. 
XXV.  r.  4,  to  strike  out  the  statement  of  claim 
upon  the  ground  that  it  disclosed  no  reasonable 
cause  of  action  was  dismissed.  B  adding  ton  v. 
Bees,  52  L.  T.  209— V.-C.  B. 


Prints  of  Law  raised  by  Pleadings— Validity 
of  Agreement  —  Hearing  before  Trial.  ]  —  An 
action  had  been  brought  to  determine  questions 
of  disputed  accounts  in  respect  of  the  joint  local 
and  continental  traffic  of  two  railways.  The 
validity  of  an  agreement  was  disputed  by  the 
pleadings.  The  plaintiffs  now  moved  under 
Ord.  XXV.  r.  2,  that  the  points  of  law  raised 
by  the  pleadings  might  be  set  down  for  hearing 
forthwith,  and  be  disposed  of  before  the  trial  of 
the  action  : — Held,  that  the  application  would 
be  granted,  as  the  case  was  a  proper  one  for 
exercising  the  jurisdiction  conferred  upon  the 
court  by  Ord.  XXV.  r.  2.  London,  Chatham, 
end  Dover  Railway  v.  South- Eastern  Railway, 
58  L.  T.  109— Chitty,  J. 

11  Point  of  Law  "—Dismissal  of  Aotion  with 
Casts.] — An  action  having  been  by  the  consent 
of  the  parties  set  down  for  hearing  under  Rules 
of  Supreme  Court,  Ord.  XXV.  r.  2,  upon  a  "  point 
of  law  "  raised  by  the  defence,  and  the  point 
having  been  decided  in  favour  of  the  defendant, 
the  judge,  as  the  decision  substantially  disposed 
of  the  whole  action,  dismissed  the  action  under 
r.  3,  and  with  costs,  by  analogy  to  the  former 
piactice  on  demurrer.  O'Brien  v.  Tyssen,  28 
Ch.  D.  372  ;  64  L.  J.,  Ch.  284  ;  51  L.  T.  814  :  33 
W.  R.  428— V.-C.  B.  6.  P.  Peroival  v.  Dnnn, 
29  Ch.  D.  128  ;  54  L.  J.,  Ch.  672  ;  62  L.  T.  320— 
V.-C.  B. 

Time  for  Application— Amended  Statement  of 
Claim.] — A  defendant  who  has  put  in  a  defence 
to  an  original  statement  of  claim,  cannot,  when 
the  plaintiff  afterwards  delivers  an  amended 
statement  of  claim,  which  alleges  no  new  matter 


against  him,  apply  to  strike  out  the  amended 
statement  of  claim,  on  the  ground  that  it  dis- 
closes no  reasonable  cause  of  action.  Jenkins  v. 
Bees,  33  W.  B.  929— Pearson,  J. 

Precedence  oyer  other  Actions.] — Where,  by 
consent  of  parties,  an  action  has  been  set  down 
for  hearing  under  Ord.  XXV.  r.  2,  before  the 
trial,  on  a  point  of  law,  the  decision  of  which 
will  substantially  dispose  of  tho  whole  action,  it 
is  not  entitled  to  precedence  over  other  non- 
witness  actions,  but  must  take  its  place  in  the 
general  list.  Thomiley,  In  re,  Woolley  v. 
Tfwrniley,  53  L.  J.,  Ch.  499 ;  32  W.  R.  539— 
Pearson,  J. 


12.  DISCOVERY,INSPECTION,  AND  INTER- 
ROGATORIES— See  Discovery. 


13.    REFERENCE    TO    ARBITRATION— See 

Arbitration. 


14.   TRIAL. 
a.  Place  of  Trial. 

Local  Venue—  Highway  Aots.  ]— The  provisions 
of  the  Highways  Act,  1835,  a.  109,  as  to  local 
venue  are  abolished  by  the  Rules  of  Court, 
1875,  Ord.  XXXVI.  r.  1.  Phelips  v.  Hadham 
Highway  District  Board,  1  C.  &  E.  67— Coleridge, 
C.J. 

Aotion  against  Constable.]— Section  19 

of  1  &  2  Will.  4,  c.  41,  by  which,  in  all  actions 
for  anything  done  in  pursuance  of  that  act,  the 
venue  is  to  be  local,  applies  only  to  such  acts 
as  a  constable  might  at  the  date  of  the  statute 
have  been  called  upon  to  perform  ;  the  section 
therefore  does  not  apply  in  the  case  of  a  constable 
acting  under  the  Contagious  Diseases  (Animals) 
Act,  1878.  Bryson  v.  Russell,  14  Q.  B.  D.  720  ; 
54  L.  J.,  a  B.  144  ;  52  L.  T.  208  ;  33  W.  R.  34  ; 
49  J.  P.  293— C.  A. 

Change  of  Venue.] — The  court  will  not  change 
a  venue  laid  by  a  plaintiff  unless  a  defendant 
can  show  some  serious  injury  and  injustice  to  his 
case  by  trying  it  at  that  venue.  Shroder  v. 
Myers,  34  W.  R.  261— C.  A. 

Amended  Statement  of  Claim.] — A  plain- 
tiff who  wishes  to  name  some  place  other  than 
Middlesex  as  the  place  of  trial  must  name  it  in 
the  original  statement  of  claim.  If  he  omits  to 
do  so  he  cannot  name  it  in  an  amended  state- 
ment of  claim  ;  and  if  he  has  named  a  place  of 
trial  in  the  original  statement  of  claim,  he  cannot 
alter  it  in  an  amended  statement  of  claim. 
Locke  v.  White,  33  Ch.  D.  308 ;  55  L.  J.,  Ch. 
731 ;  54  L.  T.  891 ;  34  W.  R.  747— C.  A. 


Order   causing   Belay  —  Convenience.] 

— In  an  action  for  the  specific  performance 
of  an  agreement,  wherein  fraud  and  concealment 
connected  with  the  conveyance  of  certain  mines 
and  property  in  the  county  of  Cornwall  were 
alleged,  it  appeared  that  the  plaintiff  resided  at 
Wakefield,  in  Yorkshire,  and  most  of  the  witnesses 
and  the  defendant  in  or  within  an  easy  distance 
of  London,  but  that  one  of  the  most  important 


1467 


PRACTICE    AND    PLEADING. 


1468 


witnesses,  who  was  eighty  years  old,  lived  in 
Cornwall,  and  that  the  place  of  business  of  the 
solicitor  who  transacted  the  business  connected 
with  the  conveyance  was  at  Plymouth.  The 
plaintiff  in  his  statement  of  claim  had  fixed 
the  venue  at  Exeter.  On  a  motion  by  the 
defendant  that  the  venue  might  be  changed  to 
Middlesex,  on  the  ground  of  convenience  and 
to  save  expense,  and  because  the  action  was  one 
which  ought  properly  to  be  assigned  to  the 
Chancery  Division,  and  contained  points  of  law 
which  would  probably  be  referred  from  the 
assizes  to  London  : — Held,  that  the  venue  must 
be  changed  to  Middlesex,  not  because  the  action 
was  a  Chancery  action,  but  on  the  ground  of 
convenience  for  the  witnesses  and  of  saving 
expense ;  also  that  the  necessary  delay  which 
must  ensue  was  not  in  itself  a  sufficient  reason 
for  permitting  the  case  to  go  to  the  assizes.  Green 
v.  Bennett,  54  L.  J.,  Ch.  85 ;  50  L.  T.  706  ;  32 
W.  R.  848— Chitty,  J.  See  Cardinall  v.  Cardin- 
ally infra. 

Action  assigned  to  Chancery  Division.] — 
Under  Ord.  XXXVI.  r.  1,  a  plaintiff  is  entitled 
to  lay  the  venue  of  an  action  in  any  place  that 
he  pleases,  although  it  is  specially  assigned  to 
the  Chancery  Division,  and  has  been  commenced 
in  that  division.  Philips  v.  Beale,  26  Ch.  D. 
621  ;  54  L.  J.,  Ch.  80 ;  50  L.  T.  433 ;  32  W.  R. 
665 — C.  A.  See  also  Cardinall  v.  Cardinall, 
Powell  v.  Cobb,  Old  Mill  Company  v.  Dukinfield 
Local  Board,  and  Shafto  v.  Bolckow,  Vaughan, 
and  Co.,  infra. 

Entry  at  Assises— Power  of  Judge  at 

Assises  to  Remit  to  Chancery  Division.] — In  a 

patent  action  commenced  in  the  Chancery 
Division,  the  plaintiff  named  Manchester  as  the 
place  of  trial,  and  the  action  was  set  down  for 
trial  at  Manchester  Assizes.  When  the  case 
came  on  for  trial  the  judge  of  assize  declined  to 
try  it,  on  the  ground  of  pressure  of  business,  and 
remitted  it  for  trial  in  the  Chancery  Division : — 
Held,  that  this  was  not  a  sufficient  ground  for 
an  order  under  Ord.  XXXVI.  r.  34,  that  the  case 
might  have  been  made  a  remanet,  and  that  the 
order  must  be  discharged.  Fairbum  v.  House- 
hold, 53  L.  T.  513— C.  A. 


b.    Mode  of  Tbial. 

Order  for  Trial  by  Judge  with  Jury.] — A 
party  who  desires  that  an  action  shall  be  tried 
with  a  jury  must  obtain  an  order  to  that  effect ; 
and  if  the  case  falls  within  Ord.  XXXVI.  r.  6, 
the  Master  has  no  discretion  but  must  make 
the  order.  Trower  v.  Law  Life  Assurance 
Society,  54  L.  J.,  Q.  B.  407  ;  52  L.  T.  888  ;  33 
TV.  R.  674— C.  A. 

Time  for  Application  for  Trial  by  Jury — 
Entry  of  Cause  for  Trial]— By  Ord.  XXXVI. 
r.  6,  upon  the  application  within  ten  days  after 
notice  of  trial  has  been  given,  of  any  party  for 
a  trial  with  a  jury  of  the  cause,  an  order  shall 
be  made  for  a  trial  with  a  jury.  Notice  of  a  trial 
was  given  by  the  plaintiff,  but  the  cause  was  not 
entered  for  trial  by  either  party  within  the  time 
prescribed  by  the  rules,  and  the  notice  was  there- 
fore no  longer  in  force.  The  plaintiff  gave  a 
second  notice  of  trial,  entered  the  cause  for 
trial  on  the  same  day,  and  then  applied  for  a ; 


trial  by  jury : — Held  (Manisty,  J.,  dissenting) 
that  under  Ord.  XXXVI.  r.  6,  the  application 
for  a  jury  was  too  late.  Per  Manisty,  J.— The 
first  notice  of  trial  should,  under  the  circum- 
stances, be  regarded  as  countermanded  by  con- 
sent The  second  notice  of  trial  was  therefore 
valid,  and  the  application  for  a  trial  by  jury  was 
made  in  time  within  Ord.  XXXVI.  rr.  6,  16. 
Tonsley  v.  Heffer,  19  Q.  B.  D.  153 ;  56  L.  Jn 
Q.  B.  656 ;  57  L.  T.  481  ;  36  W.  B.  48— D. 

An  action  for  an  injunction  andaccount  having 
been  commenced,  the  plaintiff  moved  on  the 
11th  Dec,  1885,  for  an  interim  injunction.  An 
order  was  then  made  that  the  motion  should 
stand  over  until  the  trial  of  the  action,  the 
plaintiff  undertaking  to  set  down  the  cause  far 
trial  forthwith,  and  deliver  a  statement  of  claim 
within  ten  days.  The  defendant  gave  an  under- 
taking in  the  terms  of  the  notice  of  motion. 
The  notice  of  trial  was  given  on  the  12th  Dec, 
1885,  the  statement  of  claim  was  delivered  on 
the  19th  Dec,  1885,  and  the  defence  and  counter- 
claim were  delivered  on  the  4th  Jan.,  1886.  On 
the  same  date  plaintiff  received  notice  of  the 
defendant's  intention  to  apply  for  a  trial  before 
a  jury  : — Held,  upon  the  construction  of  the 
Rales  of  Court,  Ord.  XXXVI.  r.  6,  as  amended 
by  the  Rules  of  Court  of  December,  1885,  that  the 
application  was  made  too  late,  and  that  no  case 
had  been  made  out  for  the  exercise  of  the  dis- 
cretion to  enlarge  the  time  under  the  Rules  of 
Court,  1883,  Ord.  LXIV.  r.  7.  Moore  v.  Deakin, 
53  L.  T,  858  ;  34  W.  R.  227— Chitty,  J. 

Bight  to  Trial  by  Judge  and  Jury— Discretion.] 

— Causes  or  matters,  which  previously  to  the 
passing  of  the  Judicature  Act  could,  without  any 
consent  of  parties,  have  been  tried  without  a 
jury,  are  excluded  from  the  operation  of  Ord 
XXXVI.  r.  6,  and  the  parties  are,  therefore,  not 
entitled  as  of  right  to  a  trial  with  a  jury.  In  such 
causes  or  matters  an  application  for  a  trial  with 
a  jury  must  be  made  under  Ord.  XXXVI.  r.  7, in 
which  case  it  is  in  the  discretion  of  the  court  or 
judge  to  grant  the  application.  The  Temple  Bar. 
11  P.  D.  6  ;  55  L.  J.,  P.  1  ;  53  L.  T.  904 ;  34 
W.  R.  68  ;  5  Asp.  M.  C.  50*— C.  A. 

In  an  action  in  rem  for  necessaries  for  a  ship 
the  trial  was  directed  to  be  before  a  judge  at  the 
assizes.  The  plaintiff  applied  for  an  order  that 
the  action  should  be  tried  with  a  jury,  alleging 
that  he  was  entitled  under  Ord.  XXXVI.  r.  6, 
to  such  an  order  as  of  right.  The  judge  refused 
the  application : — Held,  that  the  action  was  not 
within  Ord.  XXX  VL  r.  6,  and  that  the  applica- 
tion could  only  be  made  under  r.  7  of  that 
order,  and  therefore  the  judge  would  have  a  dis- 
cretion to  grant  the  application.    lb. 

Where,  in  an  action  brought  in  the  Chancerr 
Division  to  restrain  a  nuisance,  either  parti 
applies  for  a  trial  by  jury,  he  cannot  claim  a 
jury  as  a  matter  of  right,  but  the  application  is 
one  to  the  discretion  of  the  court  under  Ord. 
XXXVI.  r.  7  (a),  and  he  has  not  even  such 
prim&  facie  right  to  a  jury  as  to  throw  on  the 
other  side  the  burden  of  showing  that  the  case 
can  be  tried  as  well  without  a  jury.  Timso*  v. 
Wilson,  or  Fanshavoe  v.  London  and  Prorincisl 
Dairy  Company,  38  Ch.  D.  72  ;  59  L.  T.  76 ;  36 
W.  R.418— C.A. 

The  right  of  a  defendant,  under  r.  6  of  Ord. 
XXXVI.,  to  have  an  issue  of  fact  sent  for  trial 
by  a  judge  and  jury,  is  subject  to  the  discretion 


1469 


PKACTICE    AND    PLEADING. 


1470 


of  the  court  under  rr.  4  and  5  of  the  same 
order ;  and  the  court,  in  the  exercise  of  such  dis- 
cretion, will  refuse  to  send  the  issue  for  trial  by 
a  judge  and  jury,  if  it  does  not  appear  desirable. 
Jfou  t.  Bradbvrn,  32  W.  R.  368 — Pearson,  J. 

An  action  which  falls  within  one  of  the  classes 
of  actions  which,  by  sect.  34  of  the  Judicature 
Act,  1S73,  are  especially  assigned  to  the  Chancery 
Diyision,  will  not  be  sent  for  trial  by  a  jury  un- 
less it  involves  a  simple  issue  of  fact,  the  deter- 
mination of  which  will  decide  the  action.  If 
such  an  action  depends  on  the  determination  of 
mixed  questions  of  law  and  fact,  it  ought  to  be 
tried  by  a  judge  without  a  jury,  and  an  order 
will  be  made  for  its  trial  by  the  judge  of  the 
Chancery  Division  to  whom  it  has  been  assigned, 
without  a  jury,  even  though  the  plaintiff  has  by 
his  statement  of  claim  proposed  a  different  venue. 
The  mere  fact  that  the  action  will  be  tried  more 
quickly,  is  not  a  sufficient  reason  for  sending  it 
to  be  tried  at  the  assizes.  Cardinall  v.  Cardinally 
25  Ch.  D.  772  ;  53  L.  J.,  Ch.  636  ;  32  W.  B.  411 
—Pearson,  J. 

In  an  action  for  injunction  to  restrain  in- 
fringement of  copyright  and  for  damages  : — 
Held,  that  the  defendant  had  no  right  to  a 
trial  by  jury,  but  that,  under  Ord.  XXXVI. 
rules  4  and  7  (a),  the  court  had  a  discretion 
which  it  exercised  by  directing  a  trial  without  a 
jury.  Semble,  that  the  burden  of  proof  was  on 
the  party  applying  for  a  jury.  Coote  v.  Ingram, 
35  Ch.  D.  117  ;  56  L.  J.,  Ch.  634  ;  56  L.  T.  300  ; 
35  W.  R,  390— Chitty,  J. 

In  an  action  brought  by  the  plaintiff  in  the 
Chancery  Division  against  the  defendants,  in 
respect  of  an  infringement  by  them  of  his 
registered  trade-mark,  and  claiming  an  account 
of  profits  or  damages,  the  defendants  submitted 
to  a  perpetual  injunction ;  and  the  only  question 
remaining  to  be  tried  was,  what  damages  should 
be  paid,  the  plaintiff  waiving  any  accounts  of 
profits.  The  plaintiff  applied  to  the  court  that 
the  action  might  be  transferred  to  the  Queen's 
Bench  Division,  so  that  it  might  be  tried  with  a 
jury.  This  application  was  opposed  by  the 
defendants,  on  tne  ground  that,  under  rule  4  of 
Ord.  XXXVI.  of  the  Rules  of  Court,  1883,  the 
judge  had  a  discretion  ;  and  that  the  damages 
could  be  as  well  ascertained  by  the  judge  in 
court  or  chambers  as  by  a  jury  : — Held,  that  the 
judge  had  no  discretion,  and  that  under  rule  6 
of  Ord.  XXXVI.,  an  order  must  be  made  for  a 
trial  with  a  jury.  But  held,  that,  even  if  the 
court  had  a  discretion,  this  was  not  a  case  in 
which  such  discretion  ought  to  be  exercised,  the 
only  question  remaining  at  issue  in  the  action 
being  in  regard  to  the  amount  of  damages  for 
the  infringement  of  the  trade-mark,  which 
question  would  be  more  properly  tried  with  than 
without  a  jury.  lennessy  v.  Rabbits.  56  L.  T. 
138-Kay,  J. 

The  plaintiff  in  an  action  to  set  aside  deeds  on 
the  ground  of  fraud,  named  Cardigan  as  the 
place  of  trial  in  his  statement  of  claim.  On 
motion  by  a  defendant  before  issue  joined,  the 
court  ordered  the  action  to  be  tried  in  the  Chan- 
cery Division  without  a  jury,  and  this  decision 
was  affirmed  by  the  Court  of  Appeal.  Powell  v. 
Cobb,  29  Ch.  D.  486  ;  54  L.  J.,  Ch.  962  ;  53  L.  T. 
18&-C.  A. 

An  action  to  restrain  the  defendants  from 
obstructing  the  plaintiffs  water  rights  was  set 
down  in  the  Chancery  Division  on  the  27th  May, 
and  briefs  were  delivered  on  the  7th  July.    On 


motion  by  the  defendants  that  the  trial  might 
take  place  at  Manchester  before  a  judge  and 
jury  : — Held,  that  the  defendants  had  an  abso- 
lute right  to  trial  by  jury  ;  that  Manchester  was 
the  proper  place  for  the  trial ;  the  costs  to  be  re- 
served on  account  of  the  defendants'  delay  in 
bringing  their  motion.  Old  Mill  Company  v. 
DukinfitU  Local  Board,  54  L.  J.,  Ch.  160 ;  51 
L.  T.  414— V.-C.  B. 

The  plaintiffs  sued  in  respect  of  certain  altera- 
tions made  by  the  defendant  in  his  house  at 
Bath,  which  adjoined  the  plaintiffs'  house.  The 
plaintiffs  claimed,  first,  specific  performance  of 
an  agreement  entered  into  upon  a  sale  of  the 
land  on  which  the  house  stood,  whereby  a  certain 
building  scheme  was  provided  ;  and,  secondly,  an 
injunction  to  restrain  the  defendant  from  so 
building  as  to  interfere  with  the  light  and  air 
coming  to  the  plaintiffs'  house.  A  motion  was 
made  on  behalf  of  the  defendant  for  an  order 
that  the  action  might  be  tried  before  a  judge 
and  jury,  and  that  the  trial  might  take  place  at 
the  forthcoming  assizes  at  Bristol.  The  defen- 
dant's contention  was,  that  the  issue  as  to  ob- 
structing ancient  lights  not  being  one  of  those 
matters  which  by  the  Judicature  Act,  1873,  was 
assigned  to  the  Chancery  Division,  the  court  had, 
so  far  as  that  part  of  the  action  was  concerned, 
no  discretion  in  the  matter  ;  but  that  the  defen- 
dant had  a  right  to  have  that  issue  at  all  events 
tried  before  a  judge  and  jury.  Further,  that, 
supposing  such  a  right  did  not  exist,  yet,  as  this 
issue  was  quite  independent  of  the  question  of 
specific  performance,  and  as  moreover  the  locus 
in  quo  was  Bath,  and  therefore  great  expense 
would  be  saved  by  having  the  trial  at  Bristol, 
the  court,  in  the  exercise  of  its  discretion,  ought 
to  direct  a  trial  before  a  jury  : — Held,  that  the 
action  being  one  which  by  the  Judicature  Act 
was  assigned  to  the  Chancery  Division,  the  court 
had  a  discretion  whether  or  not  it  would  allow  a 
trial  by  jury ;  and  that  the  defendant  had  no 
right  to  say  that  he  would  split  the  action  in  two 
and  insist  upon  one  portion  of  it  being  tried 
before  a  jury.  Held,  also,  that  as  to  the  exercise 
of  that  discretion,  this  was  not  a  case  in  which 
the  issue  sought  to  be  tried  before  a  jury  was 
preliminary  to  the  rest  of  the  action,  and  might 
put  an  end  to  it ;  that  in  whichever  way  the 
issue  as  to  the  obstruction  of  light  was  decided, 
the  question  of  specific  performance  would 
remain,  and  would  have  to  be  tried  in  the 
Chancery  Division  ;  and  that  therefore  the  ap- 
plication must  be  refused.  Sheppard  v.  Oilmore 
53  L.  T.  625  ;  34  W.  fi.  179— Kay,  J. 


Counterclaim  for  Damages  —  Plaintiff 


Applying  for  whole  Action  to  be  Tried  with 

a  Jury.]— The  plaintiff  brought  an  action  for 
redemption  of  shares  mortgaged  by  him.  The 
defendant  by  counterclaim  sought  relief  incident 
to  his  position  as  mortgagee,  and  also  damages 
for  alleged  fraudulent  misrepresentations  made 
by  the  plaintiff  to  the  defendant  which 
affected  tne  amount  of  the  balance  to  secure 
which  the  mortgage  was  given.  The  plaintiff 
applied  to  have  the  action  tried  with  a  jury, 
which  was  refused: — Held,  on  appeal  that 
the  case  did  not  come  within  Ord.  XXXVI.  r.  6, 
so  as  to  give  the  plaintiff  a  right  to  have  the 
action  tried  with  a  jury  ;  that  his  proper  course 
would  have  been  to  apply  to  have  the  counter- 
claim for  damages  tried  separately,  as  a  claim 
which  could  not  be  conveniently  tried  in  the 


1471 


PRACTICE    AND    PLEADING. 


1472 


pending  action,  and  that  the  appeal  mast  be  dis- 
missed. Lynch  v.  Macdonald,  87  Cb.  D.  227 ;  57 
L.  J.,  Ch.  651 ;  58  L.  T.  293 ;  36  W.  R.  419— C.  A. 


Prolonged  Examination  of  Document! — 


Looal  Prejudice  against  Defendants.]  —  Where 
in  an  action  (the  place  of  trial  being  Durham)  to 
restrain  the  Ecclesiastical  Commissioners  from 
working  mines  under  the  plaintiff's  land  the 
plaintiff  applied  for  a  trial  by  jury,  the  court 
refused  to  order  such  trial  upon  evidence  (1) 
that  the  issue  was  one  requiring  a  prolonged 
examination  of  documents  under  Ord.  XXXVI. 
r.  6,  and  (2)  that  the  Ecclesiastical  Commis- 
sioners could  not  get  a  fair  trial  on  account 
of  the  local  prejudice  existing  against  them 
as  landlords.  Ska/to  v.  Bolckovo,  Vaugkan, 
and  Co.,  57  L.  T.  17  ;  35  \V.  R.  686— Chitty,  J. 


Action  Assigned  to  Chancery  Division 


— Joinder  of  Cause  of  Action  not  so  Assigned.] 
— The  plaintiff  commenced  an  action  in  the 
Chancery  Division,  alleging  that  the  defendant 
was  trustee  of  a  sum  of  7001.  for  her,  and  claim- 
ing payment  of  that  sum  with  interest,  and,  if 
necessary,  an  account  of  profits  made  by  the 
defendant  by  using  it  in  his  business,  and  also 
claiming  the  return  of  certain  chattels,  or  their 
value,  and  damages  for  their  detention.  The 
defendant  denied  the  trust,  stated  that  the 
money  had  been  lent  to  him  by  the  plaintiff,  and 
long  ago  repaid,  and  denied  that  he  ever  had  any 
chattels  of  the  plaintiff  in  his  possession.  The 
plaintiff,  after  the  defence  had  been  put  in, 
applied  to  have  the  issues  of  fact  tried  by  a 
jury:  —  Held,  that  the  action  came  within 
Ord.  XXXVI.  r.  3,  and  not  within  r.  6  of  the 
same  order.  That  the  action  therefore  was  to 
be  tried  by  a  judge  without  a  jury,  unless  it 
could  be  made  out  that  it  was  better  to  have  it 
tried  by  jury,  and  that  in  the  present  case  this 
was  not  shown.  Gaislnt'r  v.  Jay,  29  Ch.  D.  50 ;  54 
L.  J.,  Ch.  762 ;  52  L.  T.  395 ;  33  W.  R.  470— C.  A. 

e.  Notice  op  Trial. 

Bight  of  Defendant  to  give — Abridgment  of 
lime.]— Ord.  XXXVI.  r.  12  provides  that,  if  the 
plaintiff  does  not  within  six  weeks  after  the 
close  of  the  pleadings,  or  within  such  extended 
time  as  the  court  or  a  judge  may  allow,  give 
notice  of  trial,  the  defendant  may,  before  notice 
of  trial  given  by  the  plaintiff,  give  notice  of 
trial,  or  may  apply  to  the  court  or  a  judge  to 
dismiss  the  action  for  want  of  prosecution. 
Ord.  LXIV.  r.  7,  provides  that  the  court  or  a 
judge  shall  have  power  to  enlarge  or  abridge 
the  time  appointed  by  the  rules,  or  fixed  by  any 
order  enlarging  time,  for  doing  any  act  or  taking 
any  proceeding,  upon  such  terms  (if  any)  as  the 
justice  of  the  case  may  require  : — Held,  that  the 
period  of  six  weeks  mentioned  in  Ord.  XXXVI. 
r.  12,  is  not  a  time  appointed  fordoing  any  act 
or  taking  any  proceeding  within  Ord.  LXIV. 
r.  7,  and  consequently  that  the  court  could  not 
make  an  order  giving  the  defendant  leave  to  give 
notice  of  trial,  if  the  plaintiff  did  not  give  such 
notice  within  a  shorter  period  than  six  weeks 
f r  m  the  close  of  the  pleadings.  Saunders  v. 
Pawley,  14  Q.  B.  D.  234  ;  54  L.  J.,  Q.  B.  199;  51 
L.  T.  903  ;  33  W.  R.  277— D. 

Cause  not  entered  —  Motion  to  Dismiss  for 
Want  of  Prosecution.]— A  plaintiff  gave  notice 


of  trial  (in  Middlesex)  within  the  six  weeks 
limited  by  rule  12  of  Ord.  XXXVI.,  but  did  not, 
as  required  by  rule  16,  enter  the  trial  within 
six  days  after  the  notice  of  trial  was  given.  The 
trial  not  having  been  entered  : — Held,  that  the 
defendant  was  entitled  to  move  to  dismiss  for 
want  of  prosecution,  and  an  order  dismissing  the 
action  was  accordingly  made.  Crick  v.  HcwUtt. 
27  Ch.  D.  354  ;  53  L.  J.,  Ch.  1110 ;  51  L.  T.  428 ; 
32  W.  R.  922— Pearson,  J. 

Whether  fresh  Notice  necessary.]— Set 


Timdcy  v.  Heffer,  ante,  col.  1468. 

Cause  Struck  Out — Fresh  Notice  necessary.  1 
— The  plaintiff  had  given  notice  of  trial,  ana 
the  cause,  after  standing  over  for  more  than 
a  year,  had  been  struck  out  under  Ord.  XVII. 
r.  10,  of  the  Rules  of  1883.  It  was  sub- 
sequently re-entered  by  the  plaintiff  in  the 
cause-book  on  the  payment  of  21.,  as  required 
by  the  scale  of  fees ;  but,  as  he  had  given  no 
fresh  notice  of  trial,  the  defendant  now  submitted 
that  the  re -entry  was  erroneous,  and  ought  to  be 
struck  out : — Held,  that,  where  a  cause  has  been 
struck  out  under  Ord.  XVII.  r.  10,  the  notice  of 
trial  is  no  longer  in  force,  and  that  consequently 
another  must  be  given  before  the  plaintiff  can 
re-enter  the  cause  for  trial.  Le  Blond  v.  Ourtii, 
52  L.  T.  574  ;  33  W.  R.  561—  Chitty,  J. 

Default  in  Proceeding  to  trial  after  Vexdiet 
set  Aside — Trial  by  Proviso.] — An  action,  in 
which  the  place  of  trial  was  out  of  Dublin,  was 
tried  at  the  Spring  Assizes,  1883,  when  a  verdict 
was  directed  for  the  defendant.  This  verdict 
was  set  aside  on  the  ground  of  misdirection,  and 
a  second  trial  took  place  at  the  Spring  Assises. 
1884,  resulting  in  a  verdict  directed  for  the 
plaintiff,  which  was  also  set  aside,  and  a  third 
trial  ordered  in  the  Michaelmas  Sittings,  1884. 
The  plaintiff  not  having  served  notice  of  trial 
for  the  next  ensuing  assizes,  the  defendant 
moved  to  dismiss  the  action  for  want  of  prose- 
cution, contending  that  the  case  fell  within 
Ord.  XXXV.  rr.  2,  4 :— The  Court  refused  the 
motion.  Semble,  the  only  remedy  open  to  a 
defendant  under  such  circumstances  is  trial  by 
proviso  under  the  old  practice.  Foott  v.  Be*** 
16  L.  R.,  Ir.  247— Ex.  D. 


d.  Proceedings  at  Trial. 

Non-appearance  of  Plaintiff.] — Where  notice 
of  trial  had  been  served  on  the  defendants,  and 
the  plaintiff  did  not  appear,  the  defendants  moved 
to  dismiss  the  action,  with  costs  as  against  them : 
— Held,  that  it  was  not  necessary  for  them  to 
produce  an  affidavit  of  service  of  notice  of  trial, 
and  that  they  might  have  their  order  as  a  matter 
of  course.  Palmer,  In  re,  Skipper  v.  Skipper,  4!> 
L.  T.  553— V.-C.  B. 

Non-appearance  of  Defendant— Belief  claimad 
by  Pleadings.] — Action  to  enforce  specific  per- 
formance by  the  purchaser  of  an  open  contract 
to  purchase  leaseholds.  Defendant  had  paid  a 
deposit  and  accepted  the  title,  but  failed  to 
complete.  By  his  pleading  the  defendant  ad- 
mitted that  he  was  unwilling  to  comDlete. 
At  the  trial  (the  defendant  not  appearing)  the 
plaintiff  asked  for  judgment  for  rescission 
and  forfeiture  of  the  deposit : — Held,  that  the 
plaintiff  was  entitled  to  judgment  for  specific 


r 


1478 


PRACTICE    AND    PLEADING. 


1474 


performance  as  claimed  by  his  pleadings,  bnt 
not  for  rescission  and  forfeiture.  Stone  v. 
Smith,  35  Ch.  D.  188 ;  56  L.  J.,  Ch.  871;  56  L.  T. 
888;  36  W.  R.  545— Kekewich,  J. 

On  Hearing  of  Motion.  1 — See  Montagu 

t.  Land  Corporation  of  England,  post,  col.  1509. 

Ion-appearance  —  Striking-out  Cause — Time 
to  Application  to  Restore  to  List] — An  action 
coming  on  for  trial  on  the  30th  July,  was  dis- 
missed with  costs  in  consequence  of  the  plaintiff 
not  appearing  at  the  trial.  On  the  31st  October 
a  motion  was  made  to  discharge  the  previous 
order,  and  to  restore  the  case  to  the  paper  to  be 
heard  on  the  merits  : — Held,  that  the  court  had 
no  power  to  restore  the  action  except  when  the 
application  is  made  within  six  days  of  the  dis- 
mioal  Walter  or  Walker  v.  James,  53  L.  T. 
597;  34  W.  R.  29— North,  J. 

Where  an  application  to  set  aside  a  judgment 
obtained  against  a  party  on  his  non-appear- 
ance at  the  trial  is  made  after  the  time  limited 
for  so  doing  has  expired,  it  is  not  necessary 
to  first  make  a  substantive  application  for  an 
extension  of  time,  but  the  notice  of  motion 
should  show  that  the  application  is  out  of  time. 
Role  21  of  Ord.  XXXIII.  of  the  Chancery  of 
Lancaster  Rules,  1884,  which  provides  that  an 
application  to  set  aside  a  judgment  obtained 
where  one  party  does  not  appear  at  the  trial 
must  be  made  "  within  six  days  after  the  trial, 
or  at  next  sitting  of  the  court,"  does  not  give 
an  option  to  the  party  against  whom  judgment 
has  been  given  to  move  either  within  the  time 
named  (whether  a  court  sits  or  not),  or  at  the 
next  following  sittings;  but  means  that  the 
application  is  to  be  made  within  six  days,  if  the 
court  is  then  sitting,  and  if  it  does  not  sit  within 
the  six  days,  the  next  time  it  does  sit.  Bradshaw 
t.  Warlow.  32  Ch.  D.  403  ;  65  L.  J.,  Ch.  852 ;  54 
I*  T.  438 ;  34  W.  R.  557— C.  A. 

Hearing  in  Private.]— An  appeal  from  an 
injonction  to  restrain  the  defendant  from  dis- 
closing confidential  information  was  ordered  to 
be  heard  in  private  without  the  consent  of  the 
defendant,  the  plaintiff  stating  that  a  public 
bearing  would  defeat  the  object  of  the  action, 
and  make  success  on  the  appeal  useless  to  him. 
MeUor  v.  Thompson,  31  Ch.  D.  55  ;  55  L.  J.,  Ch. 
H2 ;  64  L.  T.  219— C.  A. 

Order  tor  Trial  of  one  Question  before  the 
•tasr-LUbility  — Damages.]— Where  liability 
and  also  the  amount  of  damages  are  disputed  in 
an  action,  and  the  question  as  to  the  amount  of 
damages  is  one  of  such  detail  or  nature  that  it 
probably  will  be  referred  to  some  other  tribunal 
than  a  jury,  it  is  a  proper  exercise  of  discretion 
Wider  Ord.  XXX Vt  r.  8,  to  order  the  question 
of  liability  to  be  tried,  and  the  question  of 
damages  to  be  postponed  until  afterwards. 
Smith  v.  Hargrove,  16  Q.  B.  D.  183  ;  34  W.  R. 
»4-D. 

Withdrawal  of  Juror— Breach  of  Terms  of 
Agreement  to  withdraw — Jurisdiction  to  re-try 
Aetion.] — The  withdrawal  of  a  juror  upon  terms 
is  not  necessarily  the  final  determination  of  an 
action  ;  and  if  there  be  a  substantial  breach  by 
one  of  the  parties  of  the  terms  upon  which  the 
juror  was  withdrawn,  the  court  before  whom  the 
case  came  for  trial  has  jurisdiction  to  re-try  the 


v.  Exeter  Flying  Post  Company, 
;  56  L.  J.,  Q.  B.  313  ;  56  L.  T. 


action.  Thomas 
18  Q.  B.  D.  822 
361 ;  35  W.  R.  694— D. 

Judgment  given  contrary  to  Findings  of  the 
Jury.] — Under  the  Rules  of  the  Supreme  Court, 
1875,  the  judge,  after  leaving  a  question  to  the 
jury,  had  no  power  to  give  judgment  contrary  to 
the  finding  of  the  jury  on  a  question  so  left  to 
them ;  where,  therefore,  this  course  had  been 
adopted  the  Court  of  Appeal  ordered  a  new  trial 
Perkins  v.  Dangerfield,  61 L.  T.  535— C.  A. 


15.    NEW   TRIAL. 

Hotioe  of  Motion — Misdirection— Grounds.] — 
A  notice  of  motion  for  a  new  trial  on  the  ground 
of  misdirection  should  state  how  and  in  what 
matter  the  judge  misdirected  the  jury.  Pfeijfer 
v.  Midland  Railway,  18  Q.  B.  D.  243  ;  35  W.  R. 
335— D.  6.  P.  Murfett  v.  Smith,  12  P.  D.  116  ; 
56  L.  J.,  P.  87  ;  57  L.  T.  498  ;  36  W.  R.  460 ;  51 
J.  P.  374— D.  And  Taplin  v.  Taplin,  13  P.  D. 
100 ;  57  L.  J.,  P.  79 ;  68  L.  T.  925 ;  37  W.  R. 
256 ;  52  J.  P.  406— D. 

Interpleader— Application  to  what  Court]— 
Under  the  Rules  of  1883,  Ord.  LVII.  r.  11, 
where  an  interpleader  issue  has  been  tried  by  a 
jury,  and  judgment  given  according  to  their 
finding  by  the  presiding  judge,  application  for  a 
new  trial  must  oe  made  to  the  Court  of  Appeal 
and  not  to  the  Divisional  Court.  Burstall  v. 
Bryant,  12  Q.  B.  D.  103  ;  49  L.  T.  712  ;  32 
W.  R.  496  ;  48  J.  P.  119— D.  But  see  next 
case. 

Where  a  party  desires  to  obtain  a  new  trial 
in  an  interpleader  issue,  the  application  must  be 
made  to  a  divisional  court.  If  in  such  a  case  it 
is  desired  both  to  move  for  a  new  trial  and  also 
to  appeal,  under  Ord.  XL.  r.  5,  both  applications 
must  be  made  in  interpleader  as  in  other  cases, 
in  the  first  instance  to  a  divisional  court,  from 
the  judgment  of  which  an  appeal  lies  to  the  Court 
of  Appeal.  Robinson  v.  Tucker,  14  Q.  B.  D.  371  ; 
53  L.  J.,  Q.  B.  317  ;  50  L.  T.  880  ;  32  W.  R.  697 
— C.A. 

In  County  Court]—  See  County  Court,  5,  a. 

Aetion  remitted  to  the  County  Court  for  Trial 
only.]— Rr.  3  and  4  of  Ord.  XXXIX,  and  r.  1  of 
Ord.  LII.  (of  1883),  have  no  application  to  cases 
sent  for  trial  to  a  county  court  under  19  &  20 
Vict  c.  108,  s.  26 ;  applications  for  new  trials, 
therefore,  are  still  regulated  by  the  old  practice. 
PrUchard  v.  Pritchard,  14  Q.  B.  D.  65  ;  54  L. 
J.,  Q.  B.  30  ;  51  L.  T.  859  ;  33  W.  R.  198— D. 

Trial  at  Bar— Application  not  Ex  parte.]— 
Where  an  information  to  recover  penalties  under 
the  Parliamentary  Oaths  Act  of  1866  has  been 
tried  at  bar,  a  motion  for  a  new  trial  must  not  be 
made  ex  parte,  but  upon  notice  of  motion  to  the 
other  side.  Att.-Qen.  v.  BradXaugh,  14  Q.  B.  D. 
667  ;  54  L.  J.,  Q.  B.  206  ;  52  L.  T.  689  ;  33  W.  R. 
673— C.  A. 

Damages  excessive— Power  of  Court  to  Reduce.  ] 
— In  a  case  where  the  plaintiff  is  entitled  to  sub- 
stantial damages,  and  a  verdict  for  the  plaintiff 
cannot  be  impeached,  except  on  the  ground  that 
the  damages  are  excessive,  the  court  has  power 
to  refuse  a  new  trial,  on  the  plaintiff  alone,  and 

3  B 


k 


1475 


PRACTICE    AND    PLEADING. 


1476 


without  the  defendant,  consenting  to  the  damages 
being  reduced  to  such  an  amount  as  the  court 
would  consider  not  excessive  had  they  been  given 
by  the  jury.  Belt  v.  Lawes,  12  Q.  B.  D.  356  ;  63 
L.  J.,  Q.  B.  249  ;  50  L.  T.  441  ;  32  W.  R.  607 
— C.A. 

The  defendant  published  in  a  newspaper 
several  libels  of  the  plaintiff,  who  brought  an 
action  thereon.  The  defendant,  in  his  defence, 
denied  that  he  published  the  words  complained 
of  in  the  defamatory  sense  alleged,  and  as  to  one 
of  the  libels  paid  a  nominal  sum  into  court.  The 
cause  of  action  in  respect  of  which  the  money 
was  paid  in  was  the  same  as  that  set  out  in  other 

Saragraphs  of  the  statement  of  claim  with  a 
iff erent  innuendo.  The  jury  found  a  verdict  for 
50Z.  on  the  paragraph  in  respect  of  which  the 
money  was  paid  in,  and  3,0002.  in  respect  of  the 
rest  of  the  statement  of  claim  : — Held,  that 
verdict  and  judgment  should  stand  for  3,0002., 
but  that  a  remittitur  damnum  should  be  entered 
as  to  the  502.  Bolton  v.  O'Brien,  16  L.  R,  Ir. 
97— Q.  B.  D.    Affirmed  16  L.  R.,  Ir.  483— C.  A. 

Misdirection.]— It  is  not  misdirection  for  the 
judge  to  tell  the  jury  his  own  opinion  on  the 
issue  before  them.  Smith  v.  Bart,  14  Q.  B.  D. 
105  ;  54  L.  J.,  Q.  B.  121  ;  52  L.  T.  218  ;  33  W.  R. 
455— D. 

Verdiot  against  the  Weight  of  Evidence— 
Principle  on  which  Hew  Trial  allowed.]— In 
granting  a  new  trial  on  the  ground  that  the 
verdict  was  against  the  weight  of  evidence,  the 
court  must  be  satisfied  not  merely  that  the  ver- 
dict was  one  which  reasonable  men  ought  not  to 
have  given,  but  that  it  was  so  unreasonable  that 
a  jury  could  not  properly  give  it,  if  they  really 
performed  the  judicial  duty  cast  upon  them. 
Solomon  v.  BUton  (8  Q.  B.  D.  176)  observed 
upon.  Metropolitan  Railway  v.  Wright,  11 
App.  Cas.  152  ;  55  L.  J.,  Q.  B.  401 ;  54  L.  T.  658  ; 
34  W.  R.  746— H.  L.  (B.) 

A  new  trial  of  an  action  ought  not  to  be 
granted  on  the  ground  that  the  verdict  was 
against  the  weight  of  evidence  if  the  verdict  was 
one  which  the  jury,  acting  as  reasonable  men, 
could  have  found.  Solomon  v.  Bitton  (8 
Q.  B.  D.  176)  explained.  Webster  v.  Fritdebera, 
17  Q.  B.  D.  736  ;  55  L.  J.,  Q.  B.  493 ;  55  L.  T. 
49  ;  34  W.  R.  728— C.  A. 

Perverse  Verdiot — Circumstances  suggesting 
Perversity.] — Although  there  is  no  absolute  rule 
invalidating  a  verdict  certified  by  the  judge  at 
the  trial  to  be  perverse,  yet  such  certificate 
affords  ground  for  setting  aside  the  verdict  when 
coupled  with  other  circumstances  appearing  in 
the  report  suggestive  of  perversity,  such  as  the 
award  of  nominal  damages  when  not  apparently 
warranted  by  the  evidence ;  though  these  cir- 
cumstances would  not,  per  se,  and  in  the  absence 
of  such  a  certificate,  be  sufficient  to  disturb  the 
verdict.  Quinlane  v.  Murnane,  18  L.  R.,  Ir.  53 
—C.A. 

Power  of  Court  of  Appeal  to  enter  Judg- 
ment.]— The  Court  of  Appeal  has  power  under 
Ord.  LVIII.  r.  4,  to  enter  judgment  instead  of 
sending  a  case  down  for  a  new  trial  where  it  has 
come  to  the  conclusion  that  the  verdict  is  against 
the  weight  of  evidence,  and  that  all  the  facts  are 
before  the  court.    Millar  v.  Toulmiti,  17  Q.  B.  D. 


603  ;  55  L.  J.,  Q.  B.  445  ;  34  W.  R.  695-C.  A. 
See  S.  C.  in  H.  L.,  infra. 

Quaere,  whether  on  appeal  from  an  order  of  i 
divisional  court  upon  an  application  for  a  new 
trial  on  the  ground  of  the  verdict  being  against 
the  weight  of  evidence,  the  Court  of  Appeal  hai 
power  to  give  judgment  for  the  appellants  instead 
of  directing  a  new  trial.  Millar  v.  Ttndm*  (17 
Q.  B.  D.  603)  doubted.  Toulmin  v.  Millar,  12 
App.  Cas.  746  ;  67  L.  J.,  Q.  B.  301 ;  58  L.  T.  96 
— H.  L.  (B.) 


16.    JUDGMENT. 

a.  Practice. 

Under  Order  XIV.]—  See  ante,  col.  1421. 

Judgment  by  Default— Appeal  or  Applicatiu 
to  So-hoar.] — Although  the  Court  of  Appeal  his 
jurisdiction  to  hear  a  direct  appeal  from  a 
judgment  by  default,  such  appeals  will  not  be 
encouraged.  The  proper  course  for  a  party 
against  whom  judgment  has  been  given  by  de- 
fault is  to  apply  to  the  judge  who  heard  the 
cause  to  set  aside  the  judgment  and  to  re-hear 
the  cause.  Vint  v.  Hudepith,  29  Ch.  D.  322 ;  54 
L.  J.,  Ch.  844 ;  52  L.  T.  741 ;  33  W.  B.  738-C.  A. 

Entry  of  Judgment  —  Special  Direction - 
Order  for  Payment  by  Instalments— BenwiM 
Stay  of  Execution — Amendment.]— The  plaintiff* 
having  obtained  a  verdict  in  an  action,  under 
Lord  Campbell's  Act,  for  50/.  damages,  the 
judge  at  the  trial  (without  the  consent  of  the 
plaintiffs,  as  they  alleged),  directed  judgment 
to  be  entered  for  the  plaintiffs,  but  that  the 
damages  and  costs  should  be  paid  by  yearly  in- 
stalments of  20/.,  the  damages  to  be  paid  into 
the  hands  of  one  of  the  plaintiffs,  in  troit 
for  herself  and  her  co-plaintiffs  (who  were 
infants),  and  to  be  paid  in  priority  to  the 
costs.  Judgment  was  entered  in  accordance 
with  these  directions.  The  defendant  failed  to 
pay  the  first  instalment,  and  was,  as  the  plain- 
tiffs  by  affidavit  alleged,  disposing  of  all  his 
available  property.  The  court,  on  the  applica- 
tion of  the  plaintiffs  and  on  notice  to  the  defen- 
dant, ordered  the  judgment  to  be  amended  by 
striking  out  the  qualification,  so  as  to  stand  for 
a  judgment  in  the  ordinary  form  for  the  damages 
awarded  and  costs,  and  directed  that  the  older 
as  to  suspending  execution  should  be  entered  ai 
a  separate  order  of  the  judge  at  the  trial,  and  as 
of  the  date  of  the  trial ;  and,  having  regard  to 
the  circumstances  disclosed  on  the  application, 
gave  liberty  to  the  plaintiffs,  notwithstanding 
such  order,  to  issue  immediate  execution  for  the 
full  amount  of  the  judgment.  Brien  v.  StUlita*. 
14  L.  R.,  Ir.  391— Ex.  D. 

The  power  to  suspend  execution  should  be 
exercised  by  a  separate  order,  and  not  by  • 
qualification  of  the  judgment  Semble,  the 
order  for  payment  by  instalments,  and  post- 
ponement of  costs,  was  not  within  the  dis- 
cretionary powers  as  to  staying  execution  con- 
ferred by  Ord.  XLI.  r.  15.    lb. 

Non-appearance  at  Trial.]— &w  ante,  cola  1472, 
1473. 

Service  of  Hotice  of  Judgment  on  Person  not 
Party  to  Action.]— See  Symons,  In  re,  BetSU  t. 
BetU,  ante,  coL  1400. 


1477 


PRACTICE    AND    PLEADING. 


1478 


Entering  Judgment  on  Application  to  Court 
of  Appeal  for  Hew  Trial.] — See  Toulmin  v. 
Millar,  supra. 

Divisional  Court  —  Junior  Judge  withdraw- 
ing.]—In  a  revenue  case  on  appeal  by  the  Crown 
to  the  Divisional  Court,  the  judges  were  divided 
in  opinion  ;  the  junior  judge  withdrew  his  judg- 
ment in  accordance  with  the  old  practice  in  the 
Court  of  Exchequer.  Colquhoun  v.  Brooks,  19 
Q.  B.  D.  418  ;  57  L.  J.,  Q.  B.  70  ;  57  L.  T.  455  ; 
36  W.  R.  332— D.  S.  P.  Reg.  v.  Income  Tax 
Commissioners,  20  Q.  B.  D.  649  ;  57  L.  J.,  Q.  B. 
337 ;  59  L.  T.  455 ;  36  W.  R.  671  ;  52  J.  P.  695 
-D. 

The  withdiawal  of  the  judgment  of  the  junior 
judge  only  takes  place  where  there  is  an  appeal, 
at  least  I  am  not  prepared  to  say  that  if  there 
were  no  appeal  it  would  be  done,  because 
judges  are  equal  in  point  of  authority.     Col- 

£hun  t.  Brook*,  21  Q.  B.  D.,  p.  56 — Per  Lord 
her,  M.R. 

Where  a  case,  requiring  to  be  heard  before  a 
divisional  court,  is  heard  by  a  court  consisting 
of  only  two  judges,  and  these  judges  differ  in 
opinion,  the  proper  practice  is  to  have  the  case 
re-heard  before  three  or  more  judges  of  that 
division,  and  the  old  practice  of  one  of  the 
judges  withdrawing  his  judgment  should  not  be 
adopted.  Where  one  of  two  judges  withdraws 
his  judgment,  the  order  made  is  that  of  a  single 
judge,  and  not  of  a  divisional  court.  Oreene  v. 
Thornton,  16  L.  R.,  Ir.  381— C.  A. 

Bemsal  to  exeoute  Instrument  in  compliance 
with.]— See  post,  col.  1491. 


b.  Motion  fob  Judgment. 

Admission  on  Pleadings — Counter-claim.]— In 
an  action  for  a  liquidated  demand  the  defendants 
pleaded  admitting  the  claim,  but  setting  up  a 
counter-claim  for  unliquidated  damages  to  a 
greater  amount.  The  court  refused  an  applica- 
tion under  Ord.  XL.  r.  11,  for  an  order  to  sign 
judgment  for  the  plaintiffs  upon  the  claim,  and 
for  payment  of  the  amount  thereof  by  the  defen- 
dants into  court  to  abide  the  result  of  the  action. 
Mersey  Steamship  Company  v.  Shuttleworth,  11 
Q.  B.  D.  531  ;  52  L.  J.,  Q.  B.  522 ;  48  L.  T. 
625  ;  32  \Y\  R.  245— C.  A. 

Part  of  Demand— Sight  to  Proceed  for 

Besidue.]—  In  an  action  upon  a  fire  policy  to 
recover  1,000?.,  the  defendant  company  pleaded 
that  the  policy  was  subjected  to  a  condition  that 
if  at  the  time  of  loss  or  damage  by  fire  there 
was  any  other  insurance  effected  by  the  insured, 
or  any -other  person,  covering  the  same  property, 
the  defendant  company  should  not  be  liable  to 
pay  or  contribute  more  than  their  rateable  pro- 
portion of  such  loss ;'  that  at  the  time  of  the 
alleged  damage  by  fire  the  premises  were  in- 
sured against  fire  by  a  sub-tenant  of  the  plaintiff, 
upon  which  insurance  a  certain  sum  was  paid 
to  the  sub-tenant,  who  by  covenant  with  the 
plaintiff  was  bound  to  keep  the  premises  in  re- 
pair, and  that  the  apportionment  of  the  loss 
which  the  defendant  company  were  bound  to 
pay  under  the  policy  was  62/.  This  sum  was 
not  brought  into  court  The  plaintiff  having 
moved  under  Ord.  XXXIX.  r.  9,  for  judgment 
for  this  sum  without  prejudice  to  his  right  to 


proceed  for  the  residue  of  the  amount  claimed  : 
— Held,  that  the  rule  only  applied  to  cases  in 
which  the  plaintiff  was  willing  to  accept  the 
admitted  sum  in  satisfaction  of  his  claim,  and 
that  the  motion  must,  therefore,  be  refused. 
Andrews  v.  Patriotic  Assurance  Company,  18 
L.  R.,  Ir.  115— Ex.  D. 


Enquiry  as  to  Damages— Infringement 


of  Patent.] — Where  in  an  action  for  the  infringe- 
ment of'  a  patent  the  defendant  admits  the 
validity  of  the  patent,  and  admits  ten  infringe- 
ments and  no  more,  the  plaintiff  moving  for 
judgment  on  admissions  under  Ord.  XXXII.  r.  6, 
is  entitled  to  an  injunction  and  an  inquiry  as 
to  damages  from  the  admitted  infringements,  but 
not  to  a  general  inquiry  as  to  damages.  United 
Telephone  Company  v.  Donohoe,  31  Ch.  D.  399 ; 
55  L.  J.,  Ch.  480 ;  54  L.  T.  34  ;  34  W.  R.  826— 
C.A. 


Non-delivery  of  Reply.] — A  defendant  is 


entitled,  under  Ord.  XXXI X.  r.  9,  to  judgment 
on  admissions  of  facts  in  the  pleadings,  by  reason 
of  the  plaintiff  not  delivering  a  reply  to  the  de- 
fendant's defence.  Elliott  v.  Harris,  17  L.  R., 
Ir.  351— M.  R. 

Withdrawal  of  Defence — Infant  Defen- 


dants.]— The  defence  of  two  infant  defendants 
in  an  ejectment  action  was  withdrawn  under  an 
order  of  court.  The  other  defendants  having 
made  admissions,  judgment  was  moved  for, 
supported  by  an  affidavit  proving  the  statement 
of  claim  : — Held,  that  the  correct  course  where 
infants  are  parties  and  their  defence  is  with- 
drawn and  judgment  is  moved  for,  is  to  prove 
the  statement  of  claim  by  affidavit.  Fttztoater 
v.  Waterhouse  (52  L.  J.,  Ch.  83)  followed. 
Gardner  v.  Tapling,  33  W.  R.  473— North,  J. 


Motion  or  Summons  in  Chambers.  ] — An 


action  was  brought  to  restrain  the  defendants 
from  publishing  or  issuing  a  certain  trade 
circular.  By  their  defence  they  offered  to  submit 
to  a  perpetual  injunction  in  the  terms  of  an 
interlocutory  injunction  which  had  already  been 
obtained  against  them,  "  to  be  obtained  on  sum- 
mons issued  for  that  purpose."  The  action  was 
Bet  down  on  motion  for  judgment,  and  the 
plaintiffs  moved  for  judgment  for  a  perpetual 
injunction  as  offered  by  the  defendants : — Held, 
that  there  was  jurisdiction  to  make  the  order  in 
chambers,  that  the  application  should  have  been 
so  made,  and  that  the  plaintiffs  should  only  be 
allowed  such  costs  as  would  have  been  incurred 
upon  a  summons  in  chambers.  London  Steam 
Jjyeing  Company  v.  Digby,  57  L.  J.,  Ch.  505  ; 
58  L.  T.  724  ;  36  W.  R.  497— North,  J. 

Applications  for  orders  upon  admissions  on 
pleadings  should  be  made  by  summons  in  cham- 
bers, to  come  on  in  court  as  adjourned  sum- 
monses. Oough  v.  Heatley,  49  L.  T.  772 ;  82 
W.  R.  385— Pearson,  J. 

In  Default  of  Pleading.]— &<?  infra,  B.  7. 


c  Setting  Aside,  Vabying  ob 
Impeaching. 

Application  by  Person  not  Party  to  Record.] 
-If  a  person,  who  is  not  a  party  to  the  record, 

3  B  2 


1479 


PRACTICE    AND    PLEADING. 


1480 


seeks  to  set  aside  a  judgment  by  which  he  is 
injuriously  affected,  which  the  defendant  in  the 
action  has  allowed  to  go  by  default,  he  ought  by 
summons,  taken  out  in  the  name  of  the  defen- 
dant, or  if  not  entitled  to  use  the  defendant's 
name,  then  taken  out  in  his  own  name,  but  in 
that  case  served  on  both  the  plaintiff  and  the 
defendant,  apply  for  leave  to  have  the  judgment 
set  aside,  and  to  be  allowed  either  to  defend  the 
action  on  such  terms  of  indemnifying  the  defen- 
dant as  the  judge  may  consider  right,  or  to 
intervene  in  the  action  in  the  manner  pointed 
out  by  the  Judicature  Act,  1873,  8.  24,  sub-B.  5. 
Ord.  XXVII.  r.  15,  is  designed  to  enable  judg- 
ments by  default  to  be  set  aside  by  those  who 
have  or. who  can  acquire  a  locus  standi,  and  does 
not  give  a  locus  standi  to  those  who  have  none. 
Jacques  v.  Harrison,  12  Q.  B.  D.  165  ;  53  L.  J., 
Q.  B.  137  ;  50  L.  T.  246  ;  32  W.  R.  471— C.  A. 

Frivolous  Applications  to  Impeach— Form  of 
Order.] — Repeated  frivolous  applications  for  the 
purpose  of  impeaching  a  judgment  having  been 
made  by  the  same  parties,  the  Court  of  Appeal 
made  an  order  prohibiting  any  further  applica- 
tion without  leave  of  the  court.  Qrepe  v.  Loam, 
37  Ch.  D.  168  ;  57  L.  J.,  Ch.  435  ;  58  L.  T.  100 
— C.  A. 


w  aside — When  Irregularly  obtained.] 
— Where  a  plaintiff  has  obtained  judgment 
irregularly,  the  defendant  is  entitled  ex  debito 
justitiae  to  have  such  judgment  set  aside ;  and 
the  court  has  only  power  to  impose  terms  upon 
him  as  a  condition  of  giving  him  his  costs. 
Anlaby  v.  Pratorius,  20  Q.  B.  D.  764  ;  57  L.  J., 
Q.  B.  287  ;  58  L.  T.  671 ;  36  W.  R.  487— C.  A. 

Consent   Order— Powers  of  Court   and 

Parties  by  Consent.]— The  owners  of  the  B.  sued 
the  owners  of  the  C.  for  a  collision.  In  the 
course  of  the  trial  a  compromise  was  arrived  at, 
whereupon  the  court  made  an  order  by  consent 
dismissing  the  action,  including  a  counter-claim, 
without  costs.  The  owners  of  the  cargo  on  the 
B.  then  sued  the  owners  of  the  C,  and  obtained 
a  judgment,  declaring  both  ships  to  blame.  The 
owners  of  the  C.  l>egan  a  suit  to  limit  their 
liability,  and  paid  the  limitation  fund  into 
court.  Subsequently,  the  owners  of  the  B.,  with 
the  consent  of  the  owners  of  the  C,  obtained  on 
summons,  without  application  to  the  court,  an 
order  in  the  registry  setting  aside  the  first  order, 
and  made  a  claim  upon  the  fund  in  court : — 
Held,  that  the  second  order  was  invalid,  and  did 
not  operate  to  set  aside  the  first  order,  which  was 
a  judgment  of  the  court,  and  therefore  that,  as 
the  owners  of  B.  had  no  claim  against  the  owners 
of  the  C,  the  claim  was  rightly  disallowed. 
Whether  in  the  absence  of  fraud  the  court  itself 
could  have  set  aside  the  first  order,  quaere.  The 
Bellcaim,  10  P.  D.  161  ;  55  L.  J.,  P.  3  ;  53 
L.  T.  686  ;  34  W.  R.  55— C.  A. 

Obtained  by  Collusion.]— D.,  the  residuary 

legatee  of  Mrs.  Y.,  brought  an  action  for  admi- 
nistration of  Mrs.  Y.'s  estate  against  R.,  the  sur- 
viving executor.  Mra.  Y.  had  been  the  surviving 
executrix  of  her  husband.  V.,  one  of  the  resi- 
duary legatees  of  the  husband,  shortly  after- 
wards brought  her  action  against  R.  as  sole 
defendant,  for  administration  of  the  husband's 
estate,  alleging  breaches  of  trust  by  Mrs.  Y., 
and  asking  administration  of  her  estate,  if  R.  as 


her  representative  did  not  admit  assets  to  pay 

what  should  be  found  due  from  her  estate  to  the 
husband's  estate.  On  the  28th  February  V. 
moved  for  judgment.  There  was  no  evidence 
before  the  court  that  Mrs.  Y.  was  indebted  to 
her  husband's  estate,  or  that  she  had  been  guilty 
of  wilful  neglect  or  default.  R.  by  his  counsel 
admitted  that  she  was  so  indebted,  and  he  sub- 
mitted to  a  judgment,  directing  an  account  of 
personal  estate  of  the  husband,  which  she  had 
received  with  an  inquiry  as  to  the  balances  in 
her  hands,  and  directing  administration  of  her 
estate.  It  appeared  that  from  information  R. 
had  received,  he  felt  sure  that  Mrs.  Y.  would  be 
found  a  debtor  to  her  husband's  estate,  and  that 
it  would  be  advisable  to  submit  to  the  judgment, 
so  as  not  to  incur  costs.  D.  on  the  26th  of  June 
moved  to  discharge  or  vary  the  judgment  of 
28th  February :— Held,  that  although  R.  might 
have  acted  injudiciously  in  submitting  in  Feb- 
ruary, 1885,  to  an  order  which  went  farther 
than  any  order  that  could  have  been  made 
adversely  on  the  materials  before  the  court,  the 
order  could  not  be  discharged  unless  the  court 
was  satisfied  that  R.  had  submitted  to  it  fraudu- 
lently in  collusion  with  V.,  and  in  this  ca* 
the  court  was  satisfied  that  R.  had  acted  bona 
fide.  Youngs,  In  re,  Daggett  v.  Revett,  YoUum 
v.  Revett,  30  Ch.  D.  421 ;  63  L.  T.  682— C.  A. 

Judgment  in  Default  of  Defence.]— An 

order  was  made  on  the  defendant  in  an  action 
to  produce  certain  documents  for  inspection. 
The  defendant  wilfully  refused  production,  and 
accordingly  an  order  was  made  under  Ord. 
XXXI.  r.  21,  to  strike  out  the  defence, and  jud> 
mcnt  was  given  against  the  defendant  in  default 
of  pleading.  On  an  application  by  the  defendant, 
under  Ord.  XXVII.  r.  15,  the  court  refused  to 
set  aside  the  judgment.  Haigh  v.  HaigK  31 
Ch.  D.  478 ;  56  L.  J.,  Ch.  190 ;  53  L.  T.  863; 
34  W.  R.  120— Pearson,  J. 


Proceedings  instituted  without  Auttarttf 


—Time  for  Application.] — Where  a  shipowner 
applied  to  the  court  to  set  aside  an  order  con* 
demning  him  in  the  costs  of  unsuccessful  legal 
proceedings  taken  in  his  behalf  by  the  managing 
owner,  on  the  ground  that  the  proceedings  had 
been  instituted  without  his  knowledge,  consent, 
or  ratification,  and  that  the  first  intimation  be 
had  of  the  proceedings  was  a  notice  received  by 
him  about  a  month  previous  to  the  present  appli- 
cation, condemning  him  in  the  costs  of  socb 
proceedings : — The  court  refused  to  grant  the 
application,  as  it  did  not  appear  that  the  appli- 
cant, though  he  had  no  knowledge  of  the  insti- 
tution of,  was  not  aware  of  the  pendency  of,  the 
proceedings ;  and  because  he  had  not  at  once 
applied  to  the  court  on  becoming  aware  of  the 
proceedings,  instead  of  delaying  to  take  any 
steps  for  over  a  month.  The  Bellcaim,  54  L  T. 
644  ;  5  Asp.  M.  C.  582— Butt,  J. 

Correction  of  Error— Accidental  Slip.]— The 
court  has  jurisdiction  to  correct  an  error  in  a 
judgment  arising  from  an  accidental  slip, 
although  the  time  for  appealing  from  the  judg- 
ment has  expired.  At  the  trial  the  judgment 
allowed  the  defendant  to  set  off  a  sum  named  for 
interest  paid  on  account  of  the  plaintiff.  The 
amount  was  arranged  between  the  parties  on  the 
faith  of  a  statement  made  bona  fide  by  the  defen- 


1481 


PRACTICE    AND    PLEADING. 


1482 


font,  and  accepted  by  the  plaintiff  as  accurate, 
that  the  defendant  had  made  the  payments  of 
interest  from  a  certain  date.  After  the  j  udgment 
had  been  drawn  up  and  the  time  for  appealing 
had  expired,  the  plaintiff  found  that  the  interest 
allowed  by  the  judgment  had  for  two  years 
already  been  allowed  to  the  defendant  in 
account: — Held,  that  there  was  jurisdiction 
under  Ord.  XXVIII.,  r.  11,  to  correct  the  error. 
Barker  v.  Purvis,  56  L.  T.  131— C.  A. 

Variation  of— Facts  known  before  Trial.] — 
On  the  bearing  of  a  partnership  action  judgment 
was  pronounced  declaring  the  dissolution  of  the 
partnership,  and  directing  the  usual  accounts  to 
be  taken,  but  no  direction  as  to  return  of  the 
premium  paid  by  the  plaintiff  was  given  or  asked 
for  by  him.  The  plaintiff  subsequently  applied 
to  the  court  that  an  inquiry  should  be  made  or 
direction  given  as  to  return  of  premium.  It  did 
not  appear  that  any  further  facts  had  come  to 
the  knowledge  of  the  plaintiff  other  than  those 
which  were  known  to  him  and  put  in  evidence 
on  the  hearing  of  the  action  : — Held,  that  the 
relief  sought  was  supplemental  relief  in  the 
nature  of  equitable  damages,  and  that,  in  the 
absence  of  evidence  that  new  facts  had  come  to 
the  knowledge  of  the  plaintiff,  the  court,  in  the 
exercise  of  its  discretion,  ought  not  to  entertain 
the  application.  .Edmonds  v.  Robinson,  29  Ch. 
D.  170 ;  64  L.  J.,  Ch.  686 ;  62  L.  T.  339  ;  33 
W.  R.  471— Kay,  J. 

Judgment  pasted  and  Entered — Jurisdiction 
to  Amend.] — The  court  has  inherent  jurisdiction 
to  correct  mistakes  in  the  record  of  its  judgments. 
Where  the  judgment  does  not  correctly  repre- 
sent what  was  actually  decided  by  the  court,  the 
court  has  jurisdiction  to  amend  the  judgment, 
although  it  has  been  passed  and  entered.  But 
the  proper  course  is  to  move  to  vary  the  minutes 
after  they  have  been  settled,  and  before  they 
have  been  passed  and  entered ;  and,  if  this 
course  is  not  followed,  the  judgment  will  be 
afterwards  amended  only  under  special  cir- 
cumstances, and  on  the  terms  of  the  applicant 
paying  all  the  costs.  Swire,  In  re,  Mellor  v. 
Smire,  30  Ch.  D.  239 ;  53  L.  T.  205 ;  33  W.  R. 
785-C.  A. 


17.  EXECUTION.— See  Execution. 


18.  ATTACHMENT.— See  Attachment. 


19.  MOTIONS,    SUMMONSES,  PETITIONS, 
AND   ORDERS. 

a.  Motions. 

Specially  constituted  Court— Public  Interest.] 
—The  Divisional  Court  will  decline  to  specially 
constitute  a  court  to  hear  a  motion  for  a  rule  to 
show  cause,  which,  it  is  alleged,  involves  ques- 
tions of  great  constitutional  importance  and 
public  interest,  although  it  might  specially  con- 
stitute a  court  to  hear  the  rule  argued  on  the 
question  of  its  being  made  absolute.  Lewis,  Ex 
parte,  62  J.  P.  264— D. 

lotto  of  Motion — Votiee  for  a  Bay  not  in  the 

Sitting*.] — A  notice  of  motion  was  given  for  a 


day  not  in  the  sittings  of  the  court : — Held,  that 
the  notice  was  good.  Daubney  v.  Shuttleworth 
(1  Ex.  D.  53),  overruled  on  this  point.  CovXton, 
In  re,  Hamling  v.  Elliott,  84  Ch.  D.  22;  66 
L.  J.,  Ch.  312  ;  55  L.  T.  464 ;  35  W.  R.  49— 
C.  A. 


Amendment   of.] — A  notice  of  motion 


having  been  given  for  a  day  not  in  the  sittings, 
the  court  amended  the  notice  in  this  respect. 
Williams  v.  Be  Boinville,  17  Q.  B.  D.  180  ;  64 
L.  T.  732  ;  34  W.  R.  702—  D. 

A  notice  of  appeal  by  motion  from  the  order 
of  a  judge  in  chambers  to  a  divisional  court  is 
bad  if  the  day  for  which  it  is  given  falls  at  a 
time  when  no  court  could  by  any  possibility  be 
sitting.  Maullin  v.  Rogers,  55  L.  J.,  Q.  6.  377  ; 
55  L.  T.  121 ;  34  W.  R.  592— D.  But  see  pre- 
ceding  cases. 

On  an  application  for  an  interlocutory  injunc- 
tion, the  court,  on  being  satisfied  that  under  the 
circumstances  no  injustice  would  be  done,  gave 
leave  to  amend  by  claiming  a  receiver.  Hub- 
buck  v.  Helms,  56  L.  J.,  Ch.  536  ;  66  L.  T.  232  ; 
35  W.  R.  674— Stirling,  J. 

On  motion  for  judgment  in  default  of  defence, 
a  defence  has  been  put  in  before  the  hearing, 
but  as  it  disclosed  no  real  grounds  of  defence, 
the  court  ordered  the  notice  of  motion  to  be 
amended  by  making  it  a  motion  for  judgment 
on  admissions  in  the  defence.  Gill  v.  Woodfin, 
25  Ch.  D.  707  ;  53  L.  J.,  Ch.  617  ;  50  L.  T.  490  ; 
32  W.  R.  393— C.  A. 

Form  of] — A  notice  that  the  court  will 

be  moved  at  the  Royal  Courts  of  Justice  is 
sufficient,  though  the  judge  be  sitting  in 
chambers.  Petty  v.  Daniel,  34  Ch.  D.  172  ;  56 
L.  J.,  Ch.  192  ;  55  L.  T.  745  ;  35  W.  R.  161— 
Kay,  J. 

Affidavit  not  Served  with  Votiee  of  Motion.] 
— A  notice  of  motion  to  set  aside  an  award,  which 
would  expire  on  the  last  day  of  the  sittings 
next  after  such  award,  was  served  without  any 
copy  of  the  affidavit  in  support  of  the  applica- 
tion : — Held,  that  though  the  court  may  not 
have  power  to  enlarge  the  time  for  making  the 
application  under  Ord.  LXIV.  r.  7,  there  is 
power  under  Ord.  LXX.  r.  1,  to  hear  the  appli- 
cation, although  the  time  has  expired,  if  the 
court  deem  fit.  Wiggeston  Hospital  and  Stephen- 
son, In  re,  64  L.  J.,  Q.  B.  248  ;  52  L.  T.  101 ;  33 
W.  R.  551— D.     See  also  ATTACHMENT,  I. 


Summons  or  Motion.] — The  court  had 


granted  an  injunction  restraining  the  defendants 
from  polluting  a  stream,  but  suspended  the  order 
for  three  months.  The  plaintiff,  soon  after  the 
expiration  of  that  penod,  served  them  with 
notice  of  motion  under  Ord.  XLII.  r.  31,  for 
leave  to  issue  sequestration.  The  defendants 
contended  that  copies  of  the  affidavits  intended 
to  be  used  had  not  been  served  with  the  notice 
of  motion,  and  that  the  application  for  leave,  if 
necessary,  ought  to  have  been  by  summons  in 
chambers  : — Held,  that  copies  of  affidavits  need 
only  be  served  with  the  notice  of  motion  in 
cases  where  the  liberty  of  the  subject  is  involved, 
as  in  attachment,  and  that  under  the  circum- 
stances, the  plaintiff  was  right  to  move  the 
court  in  the  first  instance,  instead  of  proceeding 
by  summons  in  chambers.    Selovs  v.   Croydon 


1483 


PRACTICE    AND    PLEADING. 


1484 


Rural  Sanitary  Authority,  53  L.  T.  209 — 
Chitty,  J. 

Further  Evidence  after  Hearing  in  Chambers.] 

—After  a  summons  has  been  heard  by  the  judge 
personally  in  chambers,  and  he  has  given  his 
decision  upon  it,  further  evidence,  which  was  not 
before  him  in  chambers,  will  not  be  received 
upon  a  motion  in  court  to  discharge  the  order 
made  in  chambers.  Munns  and  Longden,  In  re, 
50  L.  T.  356— Kay,  J. 

Motion  for  Injunction  —  Ho  Statement  of 
Claim.] — Semble,  where  a  motion  for  an  injunc- 
tion is  treated  as  the  hearing  of  the  action,  and 
there  is  no  statement  of  claim,  the  plaintiff  is 
precluded  from  asking  relief  on  any  ground  not 
specifically  claimed  by  the  writ.  Serjf  v.  Act  on 
Local  Board,  54  L.  T.  379— Pearson,  J. 

Order  made  subject  to  Affidavit  of  Service.]— 

An  order  dismissing  an  action  for  want  of  pro- 
secution was  made  subject  to  production  of  an 
affidavit  of  service,  no  one  appearing  for  the 
plaintiff.  Shortly  afterwards  counsel  appeared 
for  the  plaintiff,  but  the  judge  refused  to  have 
the  case  argued.  No  affidavit  of  service  was 
sworn  or  filed  until  after  the  day  on  which  the 
motion  was  made.  The  registrar  drew  up  the 
order  on  production  of  an  office  copy  of  an 
affidavit  of  service  sworn  and  filed  after  that 
day,  omitting  in  the  order  the  date  of  the  affi- 
davit. It  appeared  that  since  the  passing  of  the 
Judicature  Acts  the  rule  in  Lord  Milltoum  v. 
Stuart  (8  Sim.  34)  had  not  been  uniformly 
observed  by  the  registrars  : — Held  that,  assum- 
ing the  drawing  up  of  the  order  on  an  affidavit 
sworn  and  filed  after  the  day  on  which  the 
motion  was  made  to  be  irregular,  the  irregu- 
larity was  not  such  that  the  court  ought  on  that 
ground  to  discharge  the  order.  Seaar  v.  Webb, 
25  Ch.  D.  84  ;  53  L.  J.,  Ch.  464  ;  49  L.  T.  481 ; 
32  W.  B.  351— C.  A. 

For  Attachment  of  the  Person.]  —  See 
Attachment,  I. 

To  Dismiss  for  want  of  Prosecution.] — See 

ante,  col.  1448. 

For  Judgment  in  Default  of  Pleading.]—  See 
post,  col.  1506. 

For  Judgment  on  Admissions  in  Pleadings.] — 

See  ante,  cols.  1477, 1478. 


b.  Summons. 
i.  Service  of. 

On  Foreigner  out  of  the  Jurisdiction.]— The 

Slain  tiff  having  obtained  judgment  against  the 
efendant,  a  foreigner  resident  out  of  the  juris- 
diction, a  summons  was  issued  by  leave  of  a 
judge  at  chambers  calling  on  the  defendant  to 
show  cause  why  a  receiver  should  not  be  ap- 
pointed. On  an  application  for  leave  to  serve 
this  summons  on  the  defendant  out  of  the  juris- 
diction :— Held,  that  there  was  no  jurisdiction 
to  grant  such  leave.  Weldon  v.  Gounod,  15 
Q.  B.  D.  622— D. 

Leave  will  not  be  given  to  serve  a  summons 
for  taxation  of  costs  upon  a  foreigner  out  of  the 


jurisdiction.   Brandon,  Ex  parte,  Bouron,  I*  re, 
54  L.  T.  128 ;  34  W.  R.  352— D. 

Where  the  plaintiffs  sued  for  goods  in  the  pos- 
session of  the  defendant,  and  it  appeared  that  a 
foreigner  residing  out  of  the  jurisdiction  claimed 
the  right  to  the  same  goods,  and  would  probably 
sue  the  defendant  in  respect  of  them,  the  court 
gave  the  defendant  leave  to  serve  an  inter- 
pleader 8Timmon8  out  of  the  jurisdiction  upon 
the  foreigner.  The  effect  of  service  out  of  the 
jurisdiction  in  such  a  case  is  to  give  the  foreigner 
notice  of  the  proceedings  within  the  jurisdiction, 
so  that  he  may  appear  and  prosecute  his  claim, 
or,  if  he  does  not  appear,  so  that  any  future 
claim  prosecuted  by  him  against  the  defendant 
in  respect  of  the  subject-matter  of  the  action 
within  the  jurisdiction  may  be  barred.  Credit* 
Qerundeune  v.  Van  Weede,  12  Q.  B.  D.  171 ;  53 
L.  J.,  Q.  B.  142  ;  32  W.  B.  414  ;  48  J.  P.  184-D. 

Of  Originating  Summons.] — See  infra, 


ii.  Originating  Summons. 

a.  Service  of. 

Similar  to  Service  of  Writs.] — In  an  adminis- 
tration action  commenced  by  originating  sum- 
mons nnder  Ord.  LV.  rr.  3  and  4,  of  the  Rules 
of  Court,  1883,  the  defendant  being  a  person  of 
unsound  mind  not  so  found  by  inquisition,  the 
summons  was  served,  as  required  for  writs  by 
Ord.  IX.  r.  5,  of  the  same  rules,  on  the  person 
under  whose  care  the  person  of  unsound  mind 
was.  No  appearance  was  made  by  the  defendant 
on  return  of  the  summons,  and  none  was  entered. 
Notice  of  motion  was  served  for  the  appointment 
of  a  guardian  ad  litem,  as  required  by  Ord.  XIII. 
r.  1,  of  the  same  rules  in  case  of  default  of  ap- 
pearance to  writs.  The  court,  holding  that  the 
rules  as  to  the  service  of  writs  applied  to  an 
originating  summons,  made  an  order  appointing 
a  guardian  ad  litem.  Pepper,  In  re,  Pepper  r. 
Pepper,  53  L.  J.,  Ch.  1054 ;  50  L.  T.  580 ;  32 
W.  B.  765— V.-C.  B. 

Out  of  the  Jurisdiction.] — Where  an  originat- 
ing summons  was  taken  out  by  an  executor  for 
the  purpose  of  deciding  the  question  of  the 
domicil  of  a  testator,  and  the  widow  and  one 
adult  child  and  two  infants  were  separately 
represented  by  counsel ;  but  one  adult  child 
C.  B.  was  in  Calcutta  and  could  not  be  served, 
and  the  property  was  of  great  value ;  the  court 
refused  to  decide  the  question  in  the  absence  of 
C.  B.,  but  gave  leave  to  issue  a  writ,  and  gave 
leave  to  serve  the  writ  out  of  the  jurisdiction, 
and  to  serve  notice  of  motion  on  C.  B.  in  Cal- 
cutta, in  order  to  have  a  declaration  deciding 
the  question,  the  evidence  on  the  summons  to- 
be  used  on  the  motion.  Bullm- Smith,  In  re, 
Berners  v.  BuUen-Smitk,  57  L.  T.  924— Kay,  J. 

The  court  cannot  order  service  of  an  originat- 
ing summons  out  of  the  jurisdiction.  Butfield, 
In  re,  Wnaley  v.  Busfield,  32  Ch.  D.  123 ;  55 
L.  J.,  Ch.  467  ;  54  L.  T.  220 ;  34  W.  B.  372— 
C.  A. 


fi.  Jurisdiction. 

Objection  to — Time  for — Costs.]— An  objection 
to  the  jurisdiction  upon  an  originating  summons 


1485 


PKACTICE    AND    PLEADING. 


1486 


haiing  been  taken  by  the  defendants  for  the  first 
time  after  the  hearing  of  the  summons  had  been 
adjourned  into  court : — Held,  that  the  objection 
ought  to  have  been  taken  in  chambers,  and  that, 
though  the  objection  was  good,  and  the  summons 
most  be  dismissed  with  costs,  the  defendants 
could  not  be  allowed  the  costs  of  the  adjourn- 
ment into  court.  Davits,  In  re,  Davie*  v.  Davies, 
infra. 

Determination  of  Questions  at  issue  in  Action.  ] 
—Except  to  the  extent  to  which  special  provi- 
sions are  made  by  the  rules,  as,  for  instance,  by 
Old.  XV.,  the  plaintiff  in  an  action  is  not  entitled 
to  take  out  a  summons  for  the  determination  of 
the  questions  which  are  at  issue  in  the  action, 
and  which  will  properly  be  decided  at  the  trial. 
Borthwick  v.  Hansford,  28  Ch.  D.  79  ;  54  L.  J., 
Ch.  569 ;  33  W.  R.  161— Pearson,  J. 

Question  between  Legal  Devisees.] — Upon  an 
originating  summons  under  r.  3  of  Ord.  LV.  of  the 
Boles  of  Supreme  Court,  1883,  there  is  jurisdic- 
tion to  determine  such  questions  only  as  before 
the  existence  of  that  rule  could  have  been  deter- 
mined under  a  judgment  for  the  administration 
of  an  estate  or  execution  of  a  trust.  Conse- 
quently, there  is  no  jurisdiction  upon  an  origina- 
ting summons  to  decide  a  question  arising 
between  legal  beneficial  devisees  under  a  will. 
Danes,  In  re,  Davies  v.  Davies,  38  Ch.  D.  210  ; 
57  L.  J.,  Ch.  769  ;  68  L.  T.  312  ;  36  W.  R.  587— 
North,  J. 

Question  affecting  Person  el  aiming  adversely 
to  WilL] — The  court  has  no  jurisdiction,  on  an 
originating  summons  under  rule  3  of  Ord.  LV. 
of  the  Rules  of  Court,  1883,  to  determine  a 
question  affecting  a  person  claiming  adversely 
to  the  will  of  a  deceased  person.  Bridge,  In  re, 
Franks  v.  Worth,  56  L.  J.,  Ch.  779 ;  56  L.  T. 
726 ;  36  W.  R.  663— Kay,  J. 

Construction  of  Will— Settlement.]— H.  de- 
vised lands  to  T.  in  terms  which  raised  a  ques- 
tion whether  the  lands  passed  to  T.  in  fee  or  for 
life  only,  with  remainder  to  A.  as  tenant  in  tail 
under  a  prior  settlement,  the  legal  estate  in  the 
lands  passing  direct  to  the  devisee  or  devisees, 
and  there  being  no  trustees  of  the  will.  H.  died 
in  1863.  T.  died  in  1884,  having  devised  his 
real  estate  to  trustees.  A.  executed  a  disentail- 
ing deed  and  a  re-settlement  of  his  estate.  The 
trustees  of  T.'s  will  took  out  an  originating 
summons  under  Ord.  LV.  r.  3,  making  A.  and 
the  trustees  of  his  re-settlement  defendants,  for 
the  determination  of  the  questions  whether  the 
lands  devised  by  the  will  of  H.  passed  to  T.  in 
fee,  and  thence  to  the  trustees  of  his  will,  or 
whether  they  belonged  to  T.  for  life  only  with 
remainder  to  A.  in  tail,  and  if  so,  were  included 
in  A.*s  re-settlement : — Held,  that  Ord.  LV.  r.  3, 
did  not  apply  to  the  case,  and  that  the  court  had 
no  jurisdiction  to  determine  the  questions  upon 
an  originating  summons.  Carlyon,  In  re,  Car- 
lyon v.  Carlyon,  56  L.J.,  Ch.  219  ;  56  L.T.  151 ; 
35  W.  R.  155— North,  J. 

Appointment  of  Receiver.] — Semble,  that  a 
receiver  may  be  appointed  upon  an  originating 
nunmona.  Gee  v.  Bell,  35  Ch.  D.  160  ;  56  L.  J., 
Ch.  718  ;  66  L.  T.  305  ;  35  W.  R.  805— North,  J. 

In  an  administration  action,  commenced  by 


originating  summons,  a  receiver  may  (in  a  proper 
case)  be  appointed  immediately  after  the  service 
of  the  summons  and  before  any  order  for  ad- 
ministration has  been  made.  Franeke,  In  re, 
Drake  v.  Franeke,  67  L.  J.,  Ch.  437 ;  68  L.  T. 
305— North,  J. 

A  mortgagee  issued  a  writ  asking  for  the  usual 
order  for  foreclosure,  and  moved  for  the  appoint- 
ment of  a  receiver,  and  on  the  motion  being 
heard,  a  receiver  was  appointed.  A  statement 
of  claim  was  delivered,  but  the  mortgagor  having 
become  bankrupt,  the  plaintiff  withdrew  his 
claim  for  payment: — Held,  that  the  plaintiff 
should  have  proceeded  by  originating  summons. 
Barr  v.  Harding,  58  L.  T.  74  ;  36  W.  R.  216— 
Kay,  J. 

To  set  aside  Release.] — Two  legatees  having 
alleged  that  they  had  been  induced  to  execute  a 
release,  indemnifying  the  executors  of  a  testa- 
tor's estate,  without  having  had  independent 
advice  : — Held,  that  they  were  entitled  to  take 
out  an  originating  summons  under  Ord.  LV.  r.  3, 
of  the  Rules  of  Court,  1883,  to  have  the  release 
set  aside,  the  question  of  the  validity  of  the 
release  being  one  "  arising  in  the  administration 
of  the  estate  "  and  "  affecting  "  the  rights  of  the 
legatees  within  the  meaning  of  that  order.  Gar- 
nett,  In  re,  Gandy  v.  Macaulay,  50  L.  T.  172  ; 
32  W.  R.  474— V.-C.  B. 

The  court,  in  its  discretion,  will  not  allow  a 
claim  which  involves  setting  aside  a  release  to 
be  determined  on  an  originating  summons,  but 
will  require  a  writ  to  be  issued.  Ellis'  Trusts, 
In  re,  Kelson  v.  Ellis,  69  L.  T.  924 ;  37  W.  R. 
91— Kay,  J. 

Direction  to  Trustees.] — An  originating  sum- 
mons ought  not  to  be  taken  out  under  Ord.  LV. 
r.  3,  for  the  purpose  of  obtaining  a  direction  to 
trustees  to  do  or  abstain  from  doing  an  act  which 
is  outside  the  scope  of  their  trusts.  Suffolk  v. 
Lawrence,  32  W.  K.  899— Pearson,  J. 


Payment  of  Moneys  into  Court— Wilful  Default 
of  Trustees.]  —  An  originating  summons  was 
taken  out  under  Ord.  LV.  of  the  Rules  of  Court, 
1883,  by  one  of  the  residuary  legatees  under  the 
will  of  a  testator,  against  the  executors  and 
trustees  thereof,  asking  that  certain  questions  or 
matters  arising  in  the  administration  of  the 
estate  of  the  testator  might  be  determined  and 
relief  given  in  respect  thereof.  The  summons 
asked  that  a  sum  of  stock  standing  in  the  names 
of  the  trustees  might  be  transferred  into  court ; 
that  a  mortgage  deed  for  securing  the  payment 
of  a  sum  forming  part  of  the  testator  s  estate 
might  be  deposited  in  court ;  that  the  trustees 
might  be  ordered  to  pay  into  court  a  sum  form- 
ing part  of  the  estate  and  improperly  used  by 
them  in  their  respective  businesses ;  for  proper 
accounts ;  a  declaration  of  the  rights  and  inte- 
rests of  the  persons  beneficially  entitled ;  that 
so  far  as  might  be  necessary  for  the  purposes 
aforesaid  the  estate  might  be  administered  by 
the  court ;  and  that  the  trustees  might  be  ordered 
to  pay  the  costs.  It  was  objected  that  the  case 
ought  to  have  been  commenced  by  a  writ  in  an 
action,  inasmuch  as  trustees  could  not  properly 
be  charged  with  wilful  default  by  an  originating 
summons : — Held,  that  the  court  had  jurisdiction, 
upon  an  originating  summons,  to  order  payment 
into  court  of  moneys  which  have  been  received 


1487 


PRACTICE    AND    PLEADING. 


1488 


by  trustees  and  improperly  applied  by  them ; 
and  therefore  to  grant  the  relief  asked  for  in  the 
present  case.  Chapman,  In  re,  Fardell  v.  Chap- 
man, 64  L.  T.  13— Kay,  J. 

Question  whether  Defendant  Co-trustee  with 
Plaintiff.]— The  plaintiff  claimed,  by  action,  that 
it  might  be  determined  whether  the  defendant 
was  co-trustee  with  him  of  a  settlement  under 
which  both  of  them  had  been  appointed  trustees, 
and  that  a  new  trustee  might  be  appointed  in 
the  defendant's  place.  The  defendant  denied 
that  he  had  ever  accepted  the  trusts  or  acted  as 
trustee,  or  that  he  had  refused  to  concur  in  the 
appointment  of  a  trustee  in  his  place ;  and  it 
was  objected  that  the  i application  ought  to  have 
been  by  originating  summons: — Held,  that 
relief  could  not  have  been  granted  under  an 
originating  summons,  and  that  the  plaintiff  had 
rightly  proceeded  by  action  and  was  entitled  to 
his  costs  thereof.  Mworthy  v.  Harvey,  60  L.  T. 
30  ;  37  W.  R.  164— Kekewich,  J. 

Appointment  of  Hew  Trustees.]  —  Upon  an 
originating  summons  asking  for  general  admin- 
istration of  an  estate  and  the  appointment  of 
new  trustees,  the  court  can  make  an  order  for 
the  appointment  of  new  trustees,  all  the  parties 
interested  in  the  appointment  being  before  the 
court.  Allen,  In  re,  Simes  v.  Simes,  66  L.  J., 
Ch.  779  ;  66  L.  T.  611— Stirling,  J. 

The  court  has  no  jurisdiction,  upon  an  origi- 
nating summons  in  chambers,  to  make  an  order 
appointing  new  trustees,  and  vesting  in  them 
the  trust  estate.  Gill,  In  re,  Smith  v.  GUI,  53 
L.  T.  623;  34  W.  R.  134— Kay,  J.,  and  see 
Mworthy  v.  Harvey,  supra. 

Approval  of  Bale  by  Court.]— Under  r.  3  (/) 
of  Ord.  LV.  the  court  can  only  approve  of  a  sale 
which  the  executors  or  trustees  of  the  will  or 
deed  to  which  the  originating  summons  relates 
could  have  made  themselves.  Robinson,  In  re, 
JHckard  v.  Wheater,  infra. 


c.  Petitions. 

Service  out  of  Jurisdiction— Payment  out  of 
Court.] — Where  some  of  the  persons  entitled  to 
certain  funds  in  court  were  residing  out  of  the 
jurisdiction,  and  it  was  impossible  to  deal  with 
such  funds  unless  a  petition,  which  had  been 
presented  asking  for  payment  out  of  a  portion 
thereof,  was  served  upon  such  persons,  the  court 
gave  liberty  to  serve  the  petition,  together  with 
a  copy  of  the  order,  upon  them.  Colls  v.  Robins, 
55  L.  T.  479— Kay,  J. 

The  court  has  no  jurisdiction  to  allow  service 
out  of  the  jurisdiction  of  a  petition  under  the 
Trustee  Relief  Act  for  payment  of  money  out  of 
court.  Gordon's  Settlement  Trusts,  In  re  (W.  N. 
1887,  p.  192),  not  followed.  On  appeal  from 
this  decision,  it  appearing  that  the  order  sought 
by  the  petition  was  only  for  carrying  into  full 
effect  an  order  which  had  recently  been  obtained 
by  the  respondents,  the  Court  of  Appeal,  without 
deciding  that  leave  was  necessary,  gave  leave  to 
serve  the  petition  on  the  solicitors  who  had 
presented  the  former  petition,  and  who  were 
willing  to  accept  service.  Jellard,  In  re,  39  Ch. 
D.  424 ;  60  L.  T.  83— North,  J.,  and  C.  A. 


Petition  or  Summons  for  Payment  out  of 
Court.]— See  ante,  coL  1430,  and  Lands  Clauses 
Act,  III.  3. 

d.  Obdebs. 

Enforcing  Undertaking.] — At  the  trial  of  an 
action  for  specific  performance  of  an  agreement 
to  make  a  road,  the  defendant  gave  an  under- 
taking that  he  would  complete  the  road  in  ques- 
tion. An  order  was  subsequently  made,  fixing  a 
date  by  which  the  road  was  to  be  completed. 
This  not  having  been  done,  the  plaintiff  moved, 
under  Order  XLII.  r.  30,  for  an  order  that  he 
might  be  at  liberty  to  complete  the  road  himself 
at  the  cost  of  the  defendant : — Held,  that  the 
case  did  not  fall  within  the  rule,  but  neverthe- 
less, the  court  would  enforce  the  undertaking  by 
permitting  the  plaintiff  to  do  the  works,  with 
liberty  to  apply  that  the  defendant  should  pay 
the  expenses  so  incurred  in  completing  the  road. 
Mortimer  v.  Wilson,  33  W.  R.  927— North,  J. 

Jurisdiction  to  make  Declaratory  Order.]— 
Under  Ord.  XXV.,  r.  5,  the  court  has  now  juris- 
diction to  make  a  declaratory  order,  though  no 
consequential  relief  is  claimed  ;  but  such  juris- 
diction will  be  exercised  with  great  caution. 
Austen  v.  Collins,  64  L.  T.  903 — Chitty,  J. 

Sale  of  Beal  Estate—41  Cause  or  Matter  relat- 
ing to  Beal  Estate  " — Ord.  LL,  r.  1.]— An  action 
was  brought  by  the  infant  heir-at-law  (by  a 
next  friend)  of  an  intestate  against  the  widow, 
who  was  the  administratrix,  claiming  accounts 
of  the  personal  estate,  and  of  the  rents  and 

Srofits  of  the  real  estate  received  by  the  defen- 
ant.  The  action  came  on  for  hearing  on  motion 
for  judgment,  and  the  court  was  asked  under 
Ord.  LI.,  r.  1,  to  make  an  order  for  the  sale  of 
the  real  estate.  The  defendant  did  not  object: 
— Held,  that  this  was  not  "  a  cause  or  matter 
relating  to  real  estate  "  within  the  meaning  of 
the  rule,  and  that  the  court  could  not  order  a 
sale  under  that  rule.  But,  upon  a  summons 
under  the  Settled  Land  Act,  a  sale  was  ordered. 
Staines,  In  re,  Staines  v.  Staines,  33  Ch.  D.  172 ; 
65  L.  J.,  Ch.  913  ;  35  W.  R.  75— North,  J. 

Under  r.  1  of  Ord.  LI.  the  court  has  power  to 
order  a  sale  of  real  estate  only  when  it  is  neces- 
sary or  expedient  for  the  purposes  of  the  action 
before  it  that  the  property  should  be  sold.  No 
new  power  to  order  a  sale  is  conferred.  Robinson, 
In  re,  Piekard  v.  Wheater,  31  Ch.  D.  247 ;  66 
L.  J.,  Ch.  307 ;  63  L.  T.  865— Pearson,  J. 

Where  property  consisted  of  agricultural  land 
in  Norfolk  which  was  much  depreciated  in  value, 
the  court  refused  to  order  the  estate  to  be  sold 
under  Rules  of  Court,  1883,  Ord.  LL  r.  l,fbr  the 
purpose  of  paying  the  costs  of  a  petition  action, 
in  which  a  declaration  of  the  rights  of  the  parties 
entitled  had  been  obtained,  and  a  receiver  ap- 
pointed against  their  father,  who  had  previously 
been  in  possession  and  refused  to  account,  but 
directed  the  receiver  to  apply  any  funds  in  his 
hands  after  keeping  down  incumbrances  in  pay- 
ment of  costs.  Miles  v.  Jarvis,  50  L.  T.  48— 
Kay,  J. 

Xisrepreaentation  and  Coaeealaont  of 

Pacts  by  Purchaser.]— The  proposition  laid  down 
by  the  Court  of  Appeal,  that "  a  person  desirous 
of  buying  property  which  is  being  sold  under  the 
direction  of  the  court  must  either  abstain  from 


1489 


PRACTICE    AND    PLEADING. 


1490 


laying  any  information  before  the  court  in  order 
to  obtain  its  approval,  or  must  lav  before  it  all 
the  information  he  possesses,  and  which  it  is 
material  that  the  court  should  have  to  enable  it 
to  form  a  judgment  on  the  subject  under  its 
consideration,"  is  too  broadly  stated.  It  does 
not  follow  that  because  information  on  some 
material  point  or  points  is  offered,  or  is  given  on 
request,  by  a  purchaser  from  the  court,  it  must 
therefore  be  given  on  all  others  as  to  which  it  is 
neither  offered  nor  requested,  and  concerning 
which  there  is  no  implied  representation,  positive 
or  negative,  direct  or  indirect,  in  what  is  actually 
stated.  Cook*  v.  Bonoell,  11  App.  Cas.  232 ; 
«  L.  J.,  Ch.  761 ;  66  L.  T.  32— H.  L.  (E.). 
Reversing  33  W.  R.  376—0.  A. 

Leave  to  Bid— Solicitor.]— Leave  to  bid 

at  a  sale  by  the  court,  granted  to  a  solicitor  on 
the  record,  relieves  him  from  his  fiduciary  cha- 
racter, and  places  him  in  the  same  position  as  an 
ordinary  purchaser.    lb. 

By  Consent — Form.] — Where  an  order  has  been 
agreed  to  and  arranged  between  the  parties  to  an 
action,  and  has  not  been  sanctioned,  or  directed 
by  the  court,  it  should  appear  on  the  face  of  the 
order  that  it  is  an  order  by  consent.  Michel  v. 
Mutek,  66  L.  J.,  Ch.  485  ;  64  L.  T.  45  ;  34  W.  R. 
261-Chitty,  J. 

Facta  not  mentioned  to  Court — With- 
drawal of  Consent.] — An  action  was  brought 
against  a  local  board  to  restrain  them  from  pull- 
ing down  certain  houses  of  the  plaintiff's,  and  for 
damages.  On  a  motion  for  an  injunction  coming 
on,  the  defendants'  counsel,  by  the  authority  of 
his  clients,  consented  to  an  order  for  a  perpetual 
injunction,  with  costs,  and  an  inquiry  as  to 
damages,  and  such  order  was  taken  by  consent 
without  opening  the  case  to  the  court.  Before 
the  order  had  been  passed,  the  defendants  for- 
mally withdrew  their  consent,  and  the  registrar 
tbereopon  declined  to  pass  the  order  without  the 
direction  of  the  court.  The  plaintiff  moved  that 
he  might  be  directed  to  proceed  to  perfect  the 
order.  The  defendants  alleged  that  their  in- 
structions to  consent  had  been  given  under  a 
misapprehension,  but  did  not  enter  into  any 
evidence  in  support  of  that  allegation  : — Held, 
that  where  counsel  by  the  authority  of  their 
clients  consent  to  an  order,  the  clients  cannot 
arbitrarily  withdraw  such  consent,  and  that  the 
registrar  must  be  directed  to  proceed  to  per- 
fect the  order,  without  prejudice  to  any  applica- 
tion which  the  defendants  might  make  to  the 
court  below  to  be  relieved  from  their  consent,  on 
the  ground  of  mistake  or  surprise,  or  for  other 
•afficient  reason.  Harvey  v.  Croydon  Union 
Mitral  Sanitary  Authority,  26  Oh.  D.  249 ;  53 
L.  J.,  Ch.  707  ;  50  L.  T.  291 ;  32  W.  B.  389— 
C.A 

Withdrawal  of  Consent — Mistake  or 

Sorprife.] — An  action  was  brought  for  an  in- 
junction to  restrain  the  defendant  from  sell- 
ing certain  buttons  alleged  to  be  an  infringe- 
ment of  the  plaintiffs1  registered  trade-mark. 
The  defendant,  believing  that  he  had  no  defence 
to  the  action,  consented  to  an  order  for  a  per- 
petual injunction  with  costs.  Before  the  order 
was  drawn  np,  he  received  a  letter  from  the 
manufacturer  of  the  buttons,  which  were  made 
in  Germany,  wherefrom  it  appeared  that  the 


buttons  had  been  sold  in  this  country  long 
before  the  registration  of  the  plaintiffs'  trade- 
mark. On  motion  by  the  defendant  that  he 
might  be  relieved  from  the  consent  so  given  : — 
Held,  that  a  party  who  has  deliberately  con- 
sented to  a  perpetual  injunction  cannot  be 
permitted  to  withdraw  his  consent  merely  be- 
cause he  has  subsequently  discovered  that  he 
might  have  a  good  defence  to  the  action  ;  that 
the  case  was  not  one  of  mistake ;  and  that  the 
motion  must  be  refused.  Elm*  v.  William*,  54 
L.  J.,  Ch.  336  ;  52  L.  T.  39— Kay,  J. 

Rectification — Costs.] — On  the  31st  Jan.  the 
defendants  in  an  action  obtained  an  ex  parte 
injunction  against  the  plaintiffs  until  the  4th 
Feb.  On  the  4th  Feb.  a  motion  was  made  to 
commit  the  plaintiffs.  The  order  on  the  motion 
to  commit  as  drawn  up  by  the  registrar  recited 
the  ex  parte  injunction  and  the  affidavits  in 
support  of  it,  but  contained  no  order  as  to 
costs,  except  that  the  plaintiffs  were  to  pay  the 
costs  of  die  motion,  and  the  taxing-master  dis- 
allowed the  costs  of  the  ex  parte  motion  accord- 
ingly -.—Held,  that  the  court  had  power  under 
Ord.  XXVIII.,  r.  11,  to  correct  the  order  made  on 
the  4th  Feb.  by  adding  thereto  a  direction  for 
taxation  and  payment  by  the  plaintiffs  of  the 
defendants'  costs  of  the  ex  parte  order  of  the 
31st  Jan.  Blakey  v.  Hall,  56  L.  J.,  Ch.  568  ;  56 
L.  T.  400  ;  35  W.  R.  592— Chitty,  J. 


Xittake — Misrepresentation.] — Where  a 


wrong  order  has  been  made  by  reason  of  mis- 
representation or  mistake  of  fact,  the  error  may 
be  corrected  by  a  new  order  made  notwithstand- 
ing the  former  order.  Staniar  v,  Evans,  34  Ch. 
D.  470 ;  56  L.  J.,  Ch.  581  ;  56  L.  T.  87 ;  35  W.  R. 
286— North,  J. 

Amendment  of  Error  after  Order  passed  and 
entered.] — The  plaintiffs  in  a  foreclosure  action 
applied  hy  summons  under  Ord.  XV.  r.  1,  for 
an  account.  The  chief  clerk  pronounced  the 
usual  order  for  an  account  and  foreclosure.  The 
defendants  objected  to  the  direction  for  fore- 
closure, and  the  plaintiffs  assenting,  the  order 
was  drawn  up  for  an  account  only,  and  was 
passed  and  entered  in  that  form.  When  the 
parties  came  before  the  chief  clerk  to  proceed 
with  the  account,  he  objected  to  the  order  as 
not  being  the  one  he  had  pronounced,  and  re- 
fused to  proceed  with  the  account  Subsequently 
the  registrar  at  the  instance  of  the  chief  clerk, 
without  any  motion  or  summons,  altered  the 
order  by  adding  the  usual  directions  for  fore- 
closure. The  defendants  moved  to  strike  out 
the  additions.  Kay,  J.,  declined  to  do  so,  as 
he  considered  that  the  parties  were  not  at  liberty 
to  have  an  order  drawn  up,  different  from  the 
order  pronounced,  without  applying  to  the  court 
for  the  purpose ;  but,  being  of  opinion  that  the 
addition  had  been  irregularly  made,  he  stayed 
proceedings  under  the  existing  order,  giving 
the  plaintiffs  liberty  to  apply  for  a  fresh  order 
for  accounts  and  foreclosure.  The  defendants 
appealed : — Held,  that  assuming  the  order  as 
passed  and  entered  to  contain  an  error  arising 
from  an  accidental  slip  or  omission,  an  altera- 
tion made  in  it  without  any  motion  or  summons 
for  the  purpose  was  irregular,  and  must  be  dis- 
charged, and  that  the  plaintiffs  must  pay  the 
costs,  as  they  ought  to  have  applied  to  the  judge 
when  the  chief  clerk  refused  to  proceed  with 


1491 


PRACTICE    AND    PLEADING. 


1492 


the  accounts.  Blake  v.  Harvey,  29  Ch.  D.  827  ; 
53  L.  T.  541  ;  33  W.  R.  602— C.  A. 

Seotoh  Court — Enrolment  in  Chancery  Divi- 
sion.]— On  a  petition  of  course  the  registrar 
made  an  order  directing  enrolment  in  the 
Chancery  Division  of  a  decree  of  the  Court  of 
Session  in  Edinburgh,  sequestrating  the  estate 
of  the  company,  appointing  a  judicial  factor, 
and  ordering  delivery  of  the  books  of  the  com- 
pany :— Held,  that'  there  was  no  authority 
either  by  statute  or  custom  for  making  such  an 
order,  and  that  the  enrolment  must  be  vacated 
Dundee  Suburban  Railway,  In  re,  58  L.  J., 
Ch.  5  ;  59  L.  T.  720  ;  37  W.  R.  50— Kay,  J. 

To  execute  Deeds.] — An  order  may  be  made  on 
a  party  to  an  action  to  execute  a  conveyance 
of  lands  directed  to  be  sold  in  such  action, 
although  the  conveyance  has  not  been  settled  at 
chambers.  Dougherty  v.  Teaz,  21  L.  R.,  Ir.  379 
—V.  C. 

tfon-Compliance — Who  appointed.] — The 

Probate  Division  has  jurisdiction  under  s.  14  of  the 
Judicature  Act,  1884,  in  the  event  of  any  person 
neglecting  or  refusing  to  obey  its  order  to  execute 
a  deed,  to  direct  its  execution  by  any  other  per- 
son whom  it  may  nominate  for  the  purpose. 
Sowarth  v.  Howarth,  11  P.  D.  95  ;  55  L.  J.,  P. 
49  ;  55  L.  T.  303  ;  34  W.  R.  633— C.  A.  Affirm- 
ing 50  J.  P.  376— Hannen,  P. 

Where  a  defendant  refused  to  obey  an  order, 
directing  her  to  execute  a  mortgage,  the  judge 
appointed  his  chief  clerk  to  execute  it  under 
s.  14  of  the  Judicature  Act,  1884.  Edwards, 
In  re,  Owen  v.  Edward*,  33  W.  R.  578— 
Pearson,  J. 

Compromise  of  Divorce  Action  —  Power  to 
make  Agreement  an  Order  of  Queen's  Bench 
Division.]-— An  action  for  judicial  separation  in 
the  Divorce  Division  was  compromised  by  the 
parties,  and  an  agreement  of  compromise  signed 
by  them  which  provided  that  a  separation  deed 
should  be  executed  ;  that  the  agreement  might 
be  made  a  rule  of  the  High  Court,  and  that  the 
respondent  should  pay  the  petitioner's  taxed 
costs.  A  separation  deed  was  afterwards  exe- 
cuted, but  the  respondent  refused  to  pay  the 
taxed  costs,  and  the  agreement  was  made  an 
order  of  the  Queen's  Bench  Division  for  the 
purpose  of  enforcing  payment : — Held,  that 
there  was  power  to  make  the  agreement  an  order 
of  court  in  the  Queen's  Bench  Division,  and  that 
as  the  agreement  of  compromise  had  been  re- 
duced to  an  agreement  to  pay  costs,  the  discre- 
tion of  the  court  to  make  the  order  had  been 
rightly  exercised.  Smythe  v.  SmytJuf,  18  Q.  B.  D. 
544  ;  56  L.  J.,  Q.  B.  217  ;  56  L.  T.  197  ;  35  W.  R. 
346— D. 

Execution—  Service  of  Order  and  Certificate.] 

— A.  obtained  a  common  order  for  taxation  of  the 
costs  of  his  former  solicitor  B.,  the  order  directing 
payment  by  A.  to  B.  of  the  amount  of  the  taxed 
costs  within  twenty-one  days  after  the  service  of 
the  order  and  of  the  certificate  of  taxation.  The 
order  and  certificate  were  served,  not  on  A.  per- 
sonally, but  on  the  solicitor  then  acting  for  him 
in  the  taxation.  A.  failed  to  pay  the  amount 
within  twenty-one  days  after  service  of  the  order 
and  certificate  on  the  solicitor,  and  B.  applied  for 
the  issue  of  a  writ  of  fi.  fa.  against  A.  for  the 


amount,  but  the  officer  of  the  court  refused  to 
issue  the  writ,  on  the  ground  that  A  had  not 
been  personally  served  with  the  order  and  certifi- 
cate : — Held,  that  B.  might  have  the  writ  at  his 
own  risk,  without  service  of  the  order  and  certifi- 
cate on  A.  personally.  Solicitor,  In  re,  33  W.  B. 
131 — Pearson,  J. 


20.  PROCEEDINGS    IN    CHAMBERS. 
a.  Judge  at  Chambebs. 

Jurisdiction  of  Judge— Prohibition.]— A  jndge 
sitting  at  chambers  has  jurisdiction  to  set  aside 
a  writ  of  prohibition  issued  out  of  the  Petty  Bag 
Office.  Salm  Kyrburg  v.  PosnansU  (13  Q.  8.  D. 
218)  followed.  Amstell  v.  Lesser,  16  Q.  B.  D. 
187  ;  65  L.  J.,  Q.  B.  114  ;  53  L.  T.  769  ;  34  W.  R. 
230— D. 


Attachment.] — A  judge  at  chambers  has 


power  to  give  leave  to  issue  a  writ  of  attach- 
ment. Salm  Kyrburg  v.  Posnanski,  13  Q.  B.  D. 
218  ;  53  L.  J.,  Q.  B.  428  ;  32  W.  R.  752— D. 

Motion  to  Discharge  Order  —  Counsel  — 
Appeal.] — When  an  order  has  been  made  by  a 
judge  in  chambers,  the  court  has  no  power  to 
alter  that  order  unless  upon  motion,  under  s.  60 
of  the  Judicature  Act,  1873,  to  discharge  the 
order.  Where  all  parties  concerned  have  been 
represented  by  counsel  in  chambers,  the  practice 
is  for  the  chief  clerk  to  give  a  certificate,  and 
upon  that  the  parties  may  go  direct  to  the  Court 
of  Appeal.  Attorney- General  v.  Llewellyn,  5S 
L.  T.  367— Kay,  J. 

Fees  on  entering  Appeal] — See  infra,  21. 

Appeal  from  Jndge  in  Chambers.]  —  See 
Appeal,  IV. 

b.  Master  at  Chambers. 

Reference  to  Master  to  Report.] — See  Arbi- 
tration, III. 

Jurisdiction  of  Hatter  to  stay  Execution  pend- 
ing Appeal.] — A  master  has  jurisdiction  under 
Orel.  LVIII.  r.  16,  to  stay  execution  on  a  judg- 
ment pending  an  appeal  to  the  Court  of  Appeal. 
Oppert  v.  Beaumont.  18  Q.  B.  D.  435  ;  66  L  J., 
Q.  B.  216 ;  35  W.  R.  266— C.  A. 


c.  Chief  Clerk. 

Jurisdiction — Summons  for  General  Adminis- 
tration. ]— The  proviso  in  Ord.  LV.  r.  15,  that  no 
judgment  or  order  for  general  administration 
shall  be  made  under  r.  4  of  that  order  by  the 
chief  clerk,  extends  to  orders  for  general  admin- 
istration of  trusts  constituted  by  deed.  David- 
son v.  Young,  54  L.  J.,  Ch.  747— Chitty,  J. 

Inquiry  as  to  Debts — Purchase  of  Debts 


by  Plaintiff's  Solicitor.]— The  solicitor  to  the 
plaintiff  in  a  creditor's  action  bought  up  debts ; 
the  estate  was  insolvent :— Held,  that  the  ques- 
tion whether  the  solicitor  was  trustee  for  the 
creditors  of  any  profit  on  the  purchase  could  not 
be  raised  by  the  certificate  of  the  chief  clerk, 
in  the  absence  of  any  direction  on  the  subject  in 


1493 


PRACTICE    AND    PLEADING. 


1494 


the  order  under  which  the  certificate  was  made. 
TiUet,  In  re,  Field  v.  Lydall,  32  Ch.  D.  639  ;  56 
L  J.,  Ch.  841 ;  64  L.  T.  604 ;  35  W.  R.  6— 
Xorth,J. 

Ytrying   Certificate   of— Summons.]— On  an 

application  upon  the  further  consideration  of  an 
action  for  an  extension  of  the  time,  under  rule  71 
of  Ord.  LV.  for  applying  to  vary  a  finding  in  a 
chief  clerk's  certificate  :— Held,  that  the  appli- 
cant should  take  out  a  summons  for  the  purpose. 
Bote,  In  re,  Bowtfield  v.  Dove,  27  Ch.  D.  687  ; 
53  L.  J.,  Ch.  1099  ;  33  W.  R.  197— Pearson,  J. 

Honey  found  Due  —  Motion  for  Payment — 

Time.] — The  chief  clerk,  by  hi3  certificate,  found 
that  a  certain  sum  was  due  from  the  defendants 
as  occupation  rent.  Before  the  certificate  had 
become  binding  on  the  defendants  the  plaintiffs 
moved  for  leave  for  the  receiver  in  the  action  to 
distrain  for  the  rent,  or  that  the  defendants 
should  give  some  security : — Held,  that  the 
motion  must  stand  over  until  the  certificate  had 
become  binding.  Craven  v.  Ingham,  58  L.  T. 
486-Stirling,  J. 

Appeal  to  Judge.]— See  Appeal,  V. 


21.  COURT   FEES. 

"Entering  Cause  or  Matter  for  Trial  or 
Hearing" — Rule  to  Justices.]—  Under  the  order 
as  to  Supreme  Court  Fees,  1884,  Schedule  52— 
which  directs  that  a  fee  of  21,  shall  be  paid  on 
entering  or  setting  down,  or  re-entering  or  re- 
setting down  an  appeal  to  the  Court  of  Appeal, 
or  a  cause  or  matter  for  trial  or  hearing  in  any 
court  in  London  or  Middlesex,  or  at  any  assizes 
—such  fee  is  payable  though  the  matter  for 
hearing  does  not  arise  in  an  action,  as  in  the  case 
of  a  role  nisi  against  a  justice  under  11  &  12  Vict, 
c.  44,  s.  5.  Hasker,  Ex  parte,  14  Q.  B.  D.  82  ; 
64  L.  J.,  M.  C.  94— D. 

Appeal!  from  Chambers.] — Schedule  52 

of  the  order  as  to  Supreme  Court  Fees,  1884, 
which  provides  for  the  payment  of  a  fee  of  2/. 
on  entering  or  setting  down  a  cause  or  matter 
for  trial  or  hearing,  does  not  apply  to  appeals 
from  chambers.  Uaiker,  Ex  parte,  supra,  dis- 
tinguished. Dudley,  Ex  parte,  Solicitor,  In  re, 
33  W.  R.  750— D. 

Percentage — Managers'  Acoounte.] — In  the 
case  of  accounts  rendered  periodically  in  cham- 
bers by  managers  of  a  business,  a  percentage  will 
be  payable,  under  item  72  of  the  schedule  to  the 
order  as  to  Court  Fees,  1884,  upon  the  amounts 
found  to  have  been  received,  and  not  on  the 
amounts  found  to  be  due,  notwithstanding  the 
use  of  the  words  "  the  amount  found  to  be  due  " 
in  the  note  (d)  relating  to  item  72.  If  an  account 
has  been  merely  lodged,  and  no  further  steps  are 
taken  with*regard  to  it,  no  fee  will  be  payable. 
Crawskay,  In  re,  Dennu  v.  Orawtftay,  39  Ch.  D. 
552 ;  57  L.  J.,  Ch.  923  ;  59  L.  T.  598  ;  37  W.  B. 
25— North,  J. 

Sale  of  Property  with  Approbation  of 

Judge.] — By  item  No.  69  in  the  schedule  to  the 


order  as  to  Supreme  Court  Fees,  1884,  it  is  pro- 
vided that : — "  On  the  sale  or  mortgage  of  any 
land  or  hereditaments  pursuant  to  any  order 
directing  a  sale  or  mortgage  with  the  approba- 
tion of  the  judge,  made  in  any  cause  or  matter 
for  the  purpose  of  raising  money  to  be  dealt 
with  by  the  court  in  such  cause  or  matter,  for 
every  100/.,  or  fraction  of  1002.  of  the  amount 
raised — 2*."  It  is  also  provided  in  the  same 
schedule  that :  "  The  amounts  for  or  in  respect 
of  which  the  following  fees  are  payable  shall  be 
limited  to  200,000/.  in  the  following  cases  :  (a) 
The  amount  raised  at  any  time  or  times  in  the 
same  cause  or  matter  in  the  cases  to  which  the 
fee  No.  69  is  applicable."  Upon  a  sale  by  the 
court  of  lands  and  hereditaments  belonging  to  a 
company  in  liquidation  the  purchase  moneys  of 
all  the  lands  exceeded  200,000/.,  and  were  paid 
upon  a  sale  made  under  several  orders  of  court. 
Trie  question  arose  between  the  solicitors  of  the 
company  and  the  Treasury  whether  the  limit  of 
200,000/.  applied  where  there  were  several  orders 
of  such  a  nature  as  would  make  the  sale  fall 
within  item  No.  69,  or  whether  it  only  applied 
where  there  was  one  order : — Held,  that  the 
limit  of  200,000/.  applied  to  cases  where  the 
limit  had  been  reached  irrespectively  of  the 
number  of  orders  under  which  the  sale  was 
effected.  Oriental  Bank  Corporation,  In  ret 
56  L.  T.  731— Chitty,  J. 


22.  VACATIONS. 

Ex  parte  Order  of  Vacation  Judge — Applica- 
tion to  Discharge.] — An  order  was  made  by  the 
vacation  judge,  on  the  ex  parte  application  of 
the  plaintiffs,  for  service  of  the  writ  and  notice 
of  motion  on  the  solicitors  and  at  the  place  of 
business  in  England  of  a  foreigner  residing  out 
of  the  jurisdiction.  Without  formally  entering 
an  appearance  the  defendant  filed  affidavits  in 
opposition  to  the  motion,  and  instructed  counsel, 
who  opposed  the  motion  on  the  merits  : — Held, 
that  the  defendant  had  thereby  waived  the  right 
to  raise  any  objection  as  to  the  irregularity  of 
the  order,  and  must  be  treated  as  if  he  had  been 
properly  served  and  had  formally  appeared ; 
that  the  fact  that  the  ex  parte  order  had  been 
passed  and  entered  did  not  prevent  the  right  of 
the  defendant  to  move  to  discharge  it ;  but  that 
r.  12  of  Ord.  LXIII.  did  not  apply  to  such  a 
case,  and  that  the  proper  mode  of  proceeding  (if 
there  had  been  no  such  waiver  as  aforesaid) 
would  have  been  to  apply,  not  to  the  Court  of 
Appeal  or  the  vacation  judge,  but  to  the  judge 
to  whose  court  the  action  was  assigned,  to  dis- 
charge the  order  of  the  vacation  judge.  Boyle 
v.  Sacker,  39  Ch.  D.  249  ;  58  L.  J.,  Ch.  141  ;  58 
L.  T.  822  ;  37  W.  R.  68— C.  A. 

Appeal  to  Divisional  Court — Time  for.]— An 

order  was  made  by  the  vacation  judge  in  cham- 
bers on  11th  Sept.  and  on  1st  Oct.  the  plaintiff 
gave  notice  of  appeal  for  the  24th  Oct. : — Held, 
that  Order  LIV.  rule  24,  and  Order  LII.  rule  5, 
applied,  and  that  the  plaintiff  should  have  given 
notice  of  appeal  within  five  days  from  the  de- 
cision appealed  against,  and  that  therefore  the 
notice  of  appeal  was  out  of  time.  Steedman  v. 
Hakin,  59  L.  T.  607— D.  Affirmed  22  Q.  B.  D. 
16  ;  58  L.  J.,  Q.  B.  57  ;  37  W.  R.  208-C.  A. 


1495 


PRACTICE    AND    PLEADING. 


1496 


23.  DISTRICT   REGISTRY. 
Proceedings  in.]— See  District  Registry. 

24.  SPECIAL   CASE. 

Power  of  Railway  Commissioners  to  state.] — 
See  Railway. 

Power  of  Justices  to  state.] — See  Justice  of 
the  Peace,  6,  a. 

Appeal  to  Court  of  Appeal.] — See  Appeal,  II. 
2,  c. 

Trustees  acting  under— Protection.] — By  the 
combined  effect  of  R.  S.  C,  Ord.  XXXIV.,  r.  8, 
and  the  saving  clause  in  the  Statute  Law  Re- 
vision Act,  1883,  the  protection  given  to  trustees 
and  others  acting  on  the  declaration  of  the  court 
on  a  special  case  is  preserved,  notwithstanding 
the  repeal  of  the  Act.  Forster  v.  Schlesinger, 
64  L.  T.  51— Pearson,  J. 

Costs  of]— See  Costs,  II.  5. 


25.    STOP-ORDER. 

Petition  or  Summons — Fund  in  Court  exceed- 
ing £1,000.] — Where  a  fund  in  court,  paid  in 
under  the  Trustee  Relief  Act,  1847,  exceeds 
10002.,  and  there  has  been  no  prior  application 
in  the  matter  of  the  fund,  a  petition  and  not  a 
summons  as  the  proper  mode  of  applying,  under 
rr.  12  and  13  of  Ord.  XL  VI.  of  the  Rules  of 
Court,  1883,  for  a  stop-order  on  the  fund  so  paid 
in.  Toogood's  Trusts,  In  re,  66  L.  T.  703— 
Chitty,  J. 

Fund  partly  in  Court  and  partly  in  Hands  of 
Trustees  —  Notice.] — When  an  assignment  is 
made  of  an  interest  in  a  trust  fund,  part  of  which 
is  in  court  and  part  in  the  hands  of  the  trustees, 
the  assignee,  in  order  to  complete  his  title,  must, 
as  regards  the  fund  in  court,  obtain  a  stop-order, 
and  as  regards  the  fund  in  the  hands  of  trustees, 
give  notice  to  the  trustees.  Mutual  Life  Assur- 
ance Society  v.  Langley,  32  Ch.  D.  460  ;  54  L.  T. 
326— C.  A.   Affirming  32  W.  R.  792— Pearson,  J. 

Fund  in  Court — Notice  of  Prior  Incumbrance 
to  Seoond  Incumbrancer.]  —  A  second  incum- 
brancer of  a  fund  in  court,  who  at  the  time  of 
taking  his  security  had  notice  of  the  existence  of 
the  first  incumbrance,  cannot,  by  obtaining  a 
stop-order,  gain  priority  over  the  first  incum- 
brancer, even  although  the  latter  never  obtains 
a  stop-order.  Holmes,  In  re,  29  Ch.  D.  786  ;  55 
L.  J.,  Ch.  33— C.  A. 

An  incumbrancer  who  obtains  a  stop-order  on 
&  fund  in  court  does  not  lose  his  priority  over  a 
previous  incumbrancer  who  has  obtained  no  stop- 
order,  by  the  fact  that  he  had  notice  of  the 
previous  incumbrance  at  the  time  of  obtaining 
the  stop-order,  if  he  had  no  notice  of  it  when  he 
took  his  security.  Elder  v.  Maclean  (5  W.  R. 
447)  observed  upon.  Mutual  Life  Assurance 
Society  v.  Langley,  32  Ch.  D.  460  ;  54  L.  T.  326 
— C.  A. 

Order  charging  Cash  standing  to  Credit  in 
Chaneery  Division.] — A  charging  order  upon 
cash  standing  to  the  credit  of  the  debtor  in  the 


Chancery  Division  in  the  name  of  the  Paymaster- 
General,  may  be  made  ex  parte,  and  in  order  to 
give  effect  to  it  it  is  not  necessary  to  obtain  a 
stop-order ;  but  notice  given  to  the  Paymaster- 
General  will  be  sufficient  to  secure  priority. 
Brereton  v.  Edwards,  21  Q.  B.  D.  488  ;  60  L.  T. 
5;  37  W.  R.  47— C.  A.  Affirming  on  other 
grounds,  52  J.  P.  647— D. 


26.    TIME— NOTICE  TO  PROCEED. 

In  what  Cases  Applicable.] — Where  a  defen- 
dant had  failed  to  appear  to  a  writ  indorsed  for 
a  liquidated  demand  and  no  proceeding  had  been 
taken  for  more  than  a  year  after  service  of  the 
writ : — Held,  that  the  case  came  within  Ord. 
LXIV.  r.  13,  and  the  plaintiff  could  not  enter  final 
judgment  under  Ord.  XIII.  r.  3,  but  was  bound 
to  give  defendant  a  month's  notice  of  his  in- 
tention to  proceed.  Webster  v.  Myer,  14  Q.  B. 
D.  231 ;  64  L.  J.,  Q.  B.  101 ;  51  L.  T.  560;  33 
W.  R.  407— C.  A. 

Power  to  abridge  Time.]— Ord.  XXXVL  r.  12 
provides  that,  if  the  plaintiff  does  not  within  six 
weeks  after  the  close  of  the  pleadings,  or  within 
such  extended  time  as  the  court  or  a  judge  may 
allow,  give  notice  of  trial,  the  defendant  may, 
before  notice  of  trial  given  by  the  plaintiff,  gi?e 
notice  of  trial,  or  may  apply  to  the  court  or  a 
judge  to  dismiss  the  action  for  want  of  prosecu- 
tion. Ord.  LXIV.  r.  7  provides  that  the  court 
or  a  judge  shall  have  power  to  enlarge  or  abridge 
the  time  appointed  by  the  rules,  or  fixed  by  any 
order  enlarging  time,  for  doing  any  act  or  taking 
any  proceedings,  upon  such  terms  (if  any)  as  the 
justice  of  the  case  may  require : — Held,  that  the 
period  of  six  weeks  mentioned  in  Ord.  XXXVL 
r.  12,  is  not  a  time  appointed  for  doing  any  act 
or  taking  any  proceeding  within  Ord.  LXIV. 
r.  7,  and  consequently  that  the  court  could  not 
make  an  order  giving  the  defendant  leave  to  give 
notice  of  trial,  if  the  plaintiff  did  not  give  snch 
notice  within  a  shorter  period  than  six  weeks 
from  the  close  of  the  pleadings.  Saunders  v. 
Pawley,  14  Q.  B.  D.  234 ;  54  L.  J.,  Q.  B.  199 ; 
51  L.  T.  903 ;  33  W.  R.  277— D. 


27.    INTERPLEADER  —  See  IntebpleadH. 


28.    AFFIDAVIT— See  Evidence. 


29.    EVIDENCE— See  Evidence. 


30.    COSTS— See  Costs. 


31.    PROCEEDINGS  IN  PARTICULAR 

ACTIONS. 

a.   Actions  fob  Recovery  op  Land— 

Ejectment. 

Pleadings  m.~\—See  Pleadings,  infra, 

Joinder   of  Causes   of  Action.]  — &w  ante, 
col.  1423. 


1497 


PRACTICE    AND    PLEADING. 


1498 


By  Lunatic]  — See  Lunatic,  IV. 

Discovery— Privilege.]— See  Discovert,  I.  4. 

Judgment  under  Ord.  XIV.] — See  ante,  coL 
1421. 

Belief  against  Forfeiture.] — See  Landlord 
and  Tenant,  VL  2. 

Lease  by  Administratrix — Action  by  Adminis- 
trator de  bonis  non.] — An  administratrix  made  a 
lease,  in  1854,  of  premises  forming  portion  of  the 
intestate's  assets,  for  a  term  of  twenty-one  years. 
The  lease  did  not  purport  to  be  made  by  her  in 
her  representative  capacity.  The  lessee  ad- 
mittedly went  into  possession  under  the  lease, 
but  never  paid  any  rent.  He  continued  in  pos- 
session until  1883,  when  the  administrator  de 
bonis  non  of  the  intestate  brought  an  ejectment 
for  non-payment  of  rent.  The  jury  having  found 
that  the  defendant  had  continued  in  possession 
on  the  terms  of  the  lease  : — Held,  that  the  plain- 
tiff (the  administrator  de  bonis  non)  was  entitled 
to  a  verdict  for  possession  and  arrears  of  rent. 
Doyle  v.  Maguire,  14  L.  R.,  Ir.  24— C.  P.  D. 

Jurisdiction  of  County  Court — Landlord  and 
Tenant] — See  Friend  v.  Shaw,  ante,  col.  547. 

Writ  of  Possession  when  Plaintiffs  Title  has 
expired.]  — Where  a  landlord  has  recovered 
judgment  in  an  action  against  his  tenant  for  the 
possession  of  premises  which  had  been  held  over 
after  the  expiration  of  the  tenancy,  he  will  be 
allowed  to  issue  the  writ  of  possession  notwith- 
standing that  his  estate  in  the  premises  termi- 
nated after  the  commencement  of  the  action 
and  before  the  trial,  unless  it  be  unjust  and 
futile  to  issue  such  writ,  and  it  is  for  the  defen- 
dant to  show  affirmatively  that  this  will  be  the 
result  of  issuing  such  writ.  Knight  v.  Clarke, 
15  Q.  B.  D.  294  ;  54  L.  J.,  Q.  B.  509  ;  50  J.  P.  84 
-C.A. 

b.  Administration  Actions— &0  Executor 
and  Administrator. 


<?.  Partition  Actions — See  Partition. 
d.  Partnership  Actions— See  Partnership. 

(B.)  Pleadings. 
1.  GENERALLY. 

"Material  raots"— What  are.]— With  refer- 
ence to  L.*s  claim  in  respect  of  lights,  B.  alleged 
that  in  another  action  (a  new  trial  of  which  was 
still  pending)  L.  had  sworn  that  the  lights  in 
question  were  not  ancient,  and  was  therefore 
estopped  from  alleging  in  the  present  action 
that  they  were  ancient : — Held,  that  the  words 
tt material  facts"  in  Ord.  XIX.  r.  4,  do  not 
mean  merely  facts  which  must  be  proved  in 
order  to  establish  the  existence  of  the  cause 
of  action,  but  include  also  any  facts  which  the 
party  pleading  is  entitled  to  prove  at  the  trial, 
but  that  the  above  allegation  did  not  come 
within  this  definition,  and  was  calculated  to 


prejudice  the  fair  trial  of  the  action.     Lumb  v. 
Beaumont,  49  L.  T.  772 — Pearson,  J. 

Rules  4  and  15  of  Ord.  XIX  apply  to  such 
facts  as  are  material  to  the  cause  of  action  or 
defence,  and  not  to  damages.  Wood  v.  Durham 
(EarV),  21  Q.  B.  D.  501 ;  57  L.  J.,  Q.  B.  547  ;  59 
L.  T.  142  ;  37  W.  R.  222— D. 

Judgment  on  Admissions.]  —  See  ante,  col. 
1477. 


2.  STATEMENT  OF  CLAIM. 

Form  in  Schedule — Insufficiency.] — A  state* 
ment  of  claim  in  a  salvage  action  was  drawn  in 
the  Form,  No.  6,  of  Appendix  C.  to  the  Rules 
of  the  Supreme  Court,  1883 ;  on  motion  by  the 
defendants  under  Ord.  XIX.  r.  7,  for  a  further 
and  better  statement  of  claim  or  particulars  : — 
Held,  that  the  plaintiffs  must  deliver  a  fuller 
statement  of  claim,  and  that  in  salvage  action* 
a  fuller  form  than  that  given  in  Appendix  C, 
No.  6,  should  generally  be  followed.  The  Isisr 
8  P.  D.  227  ;  53  L.  J.,  P.  14  ;  49  L.  T.  444  ;  32 
W.  R.  171 ;  5  Asp.  M.  0. 155— Hannen,  P. 

Sight  of  Way-Alleging  Plaintiffs'  Title  gene* 
rally.] — In  an  action  for  interfering  with  the 
plaintiffs'  right  of  way  to  a  certain  quarry,  the 
plaintiffs  alleged,  in  the  first  paragraph  of  their 
statement  of  claim,  that  they  were  entitled  to  a 
right  of  way  from  the  public  highway  through  a 
certain  gateway  along  a  certain  passage  to  the 
said  quarry,  and  back  again  from  the  said  quarry 
to  the  public  highway,  for  themselves,  their 
agents,  servants  and  licensees,  on  foot  and  with 
horses,  carts  and  carriages,  at  all  times  of  the 
year ;  and  in  the  second  paragraph- they  alleged 
that  they  were  entitled  to  a  right  of  way  from 
the  public  highway  through  a  certain  gateway 
along  a  certain  passage  to  the  said  quarry,  and 
back  again  from  the  said  quarry  to  the  public 
highway,  for  themselves,  their  agents,  servant* 
and  licensees,  on  foot  and  with  horses  and  carts,, 
at  all  times  convenient  and  necessary  for  the 
working  of  the  said  quarry,  and  for  removing 
stones,  gravel  and  other  material  therefrom.  On 
motion  to  set  aside  the  first  and  second  paragraphs- 
of  the  statement  of  claim : — Held,  that  the  state- 
ment of  claim  was  sufficient.  Kenmare  (Lord) 
v.  Casey,  12  L.  R.,  Ir.  374— Q.  B.  D. 

Action  on  Covenants  in  a  Lease— Title  to- 
Reversion.] — In  an  action  upon  covenants  in 
an  expired  lease,  the  plaintiff  stated  the  lease ;. 
that  the  term  had  expired  ;  that  at  its  expira- 
tion the  defendants  were  the  assigns  of  the 
lease,  and  liable  to  perform  the  lessee's  cove- 
nants ;  that  the  plaintiff  became,  and  at  the 
expiration  of  the  term  was  entitled  to  the 
immediate  reversion  in  the  demised  property, 
subject  only  to  the  term ;  that  he  was  and  is- 
entitled  to  enforce  all  the  lessee's  covenants, 
and  that  the  defendants  had  for  eight  years  paid 
him  rent  .-—Held,  such  pleading  was  insufficient, 
that  the  plaintiff  ought  also  to  have  shown  what 
the  reversion  was  which  the  lessor  had,  and  how 
the  plaintiff  derived  his  title  to  that  particular 
reversion,  and  that  the  statement  of  claim  must 
be  struck  out  under  Ord.  XIX.  r.  27,  as  a  plead- 
ing tending  to  embarrass  the  fair  trial  of  the  action. 
Philip?*  v.  Philippt  (4  Q.  B.  D.  127)  followed. 


1499 


PRACTICE    AND    PLEADING. 


1500 


Davis  v.  James,  26  Ch.  D.  778  ;  53  L.  J.,  Ch.  523  ; 
50  L.  T.  115  ;  32  W.  R.  406— Kay,  J. 

Ejectment — Allegation  of  Plaintiff's  Deriva- 
tive Title.] — In  an  action  to  recover  possession 
of  land  for  non-payment  of  rent  by  a  plaintiff 
claiming  under  a  derivative  title,  the  statement 
of  claim  set  out  a  lease,  and  alleged  that  the 
defendant  entered  into  possession  under  it,  and 
then  stated  that,  on  the  death  of  the  lessor,  all 
his  estate  and  interest  came  to  and  was  now 
vested  in  the  plaintiff.  The  defendant  having 
moved  to  set  aside  the  statement  of  claim  as 
embarrassing  : — Held,  that  the  statement  of  the 
devolution  of  the  plaintiff's  title  was  sufficient. 
Beatty  v.Leaey,  16  L.  B.,  Ir.  132— C.  A. 

Hotice  in  lien  ol] — In  an  action  for  money 
alleged  to  have  been  obtained  from  the  plaintiffs 
by  fraudulent  misrepresentation,  the  nature  of 
which  misrepresentation,  and  the  particulars  of 
the  sums  sued  for  being  Bet  out  in  the  indorse- 
ment of  the  writ  of  summons,  the  plaintiff 
delivered  a  notice  in  lieu  of  statement  of  claim 
under  Ord.  XX.  r.  2 : — Held  sufficient,  and  motion 
by  the  defendant  to  compel  a  statement  of  claim 
to  be  delivered,  refused.  Young  v.  Seattle,  16 
L.  R.,  Ir.  192— C.  P.  D. 


3.  DEFENCE. 

What  ii — Signing  Judgment  in  Default] — 

The  plaintiff  issued  a  writ  for  the  recovery  of 
possession  of  certain  premises  against  the  defen- 
dant on  2nd  February,  and  on  the  1 3th  of  that 
month  the  defendant  delivered  at  the  office  of 
the  plaintiff's  solicitor,  a  document  dated  and 
signed  by  the  defendant,  setting  out  the  terms 
under  which  he  alleged  that  he  held  the  pre- 
mises. The  plaintiff's  solicitor  signed  judg- 
ment on  the  ground  that  no  defence  had  been 
delivered.  On  a  summons  to  set  aside  the  judg- 
ment as  irregular  : — Held,  that  the  document  so 
delivered  was  not  a  defence  and  that  the  judg- 
ment must  stand.  Marshall  v.  Jones,  52  J.  P. 
423— D. 

Time  for  Delivery— Specially  indorsed  Writ.] 

— The  service  of  a  writ  specially  indorsed  under 
Ord.  111.  r.  6,  is  delivery  of  a  statement  of 
claim  to  the  defendant  within  the  meaning  of 
Ord.  XXI.  r.  6 ;  bo  that  the  defendant  has  ten 
days  from  the  time  limited  for  appearance  within 
which  to  deliver  his  defence.  Anlaby  v.  Pra- 
torius,  20  Q.  B.  D.  764  ;  57  L.  J.,  Q.  B.  287  ;  58 
L.  T.  671  ;  36  W.  R.  487— C.  A. 

Recovery  of  Possession  of  Land.] — In  an 

action  to  recover  possession  of  land  a  defendant 
may  deliver  his  defence  at  any  time  before 
judgment  entered  against  him,  notwithstanding 
that  the  time  limited  by  Ord.  XXI.  r.  1  (Ir.)  has 
elapsed.  Harding  v.  Lyons,  14  L.  R.,  Ir.  302 
— Ex.  D.    But  see  cases,  post,  col.  1508. 


Default  in  Delivery  —  Setting  Aside.]  —  See 

cases,  post,  col.  1508. 

Payment  into  Court  with  Defence.] — See  ante, 
col.  1426. 

Plea  to  Damages.] — The  plaintiff,  a  profes- 


sional jockey,  sought  to  recover  damages  for  a 
libel  which  stated  that  he  was  in  the  habit  of 
pulling  horses  belonging  to  a  certain  stable. 
The  defendant  pleaded  a  justification,  bat  sought 
leave  to  amend  his  defence  by  stating  that  the 
plaintiff  was  commonly  reputed  to  have  been  in 
the  habit  of  so  unfairly  and  dishonestly  riding 
horses  (generally  and  not  of  a  particular  stable) 
as  to  prevent  their  winning  races :— Held,  that 
the  amendment  could  not  be  allowed,  since  it 
was  a  plea  to  damages  only.  Wood  v.  Durham 
(Earl),  21  Q.  B.  D.  501  ;  57  L.  J.,  Q.  B.  547 ;  59 
L.  T.  142  ;  37  W.  R.  222— D. 


4.    SET-OFF  AND  COUNTERCLAIM. 

Effect  of  Judicature  Act  and  Rules.]— Bole  3 
of  Ord.  XIX.,  Rules  of  Court,  1875,  was  not 
intended  to  give  rights  against  third  parties 
which  did  not  exist  before  ;  but  it  is  a  rule  of 

Erocedure  designed  to  prevent  the  necessity  of 
ringing  a  cross  action  in  all  cases  where  the 
counter-claim  may  conveniently  be  tried  in  the 
original  action.  Milan  Tramways  (\*mpa*y,  I* 
re,  Theys,  Ex  parte,  22  Ch.  D.  122;  52  L.J., 
Ch.  29;  48  L.  T.  213;  31  W.  R.  107— Kay,  J. 
Affirmed  25  Ch.  D.  587  ;  53  L.  J.,  Ch.  1008 ;  50 
L.  T.  545  ;  32  W.  R.  601— C.  A. 

What  allowed  — Pleading  tending  to  Sa- 
barrass.] — In  an  action  to  recover  possession  of 
land  for  non-payment  of  rent,  and  for  a  years 
rent,  amounting  to  346/.  2s.  6d.,  due  the  29th 
September,  1883,  the  defendant,  inter  alia, 
pleaded,  as  to  211.,  part  of  the  rent  claimed, 
eviction  by  the  plaintiff  from  a  portion  of  the 
lands,  in  1877,  the  value  of  which  the  defendant 
alleged  was  21/. ;  as  to  10/.  18*.  10d.,  other  part 
of  the  rent  claimed,  a  set-off  for  poor-rate,  to 
which  the  plaintiff,  as  landlord,  was  liable,  and 
he  brought  the  residue  of  the  rent  claimed  into 
court  The  defendant  also  delivered  a  counter- 
claim, as  to  so  much  of  the  plaintiffs  claim  as 
claimed  payment  of  the  said  sum  of  346/.  2*.  (ft, 
for  84/.  for  the  plaintiff's  use  and  occupation  ol 
the  seven  acres  for  four  years ;  and,  secondly, 
for  100/.  damages  for  breach  of  an  alleged 
contract  by  the  plaintiff,  in  consideration  of  the 
surrender  of  the  said  seven  acres,  to  grant  a 
reasonable  abatement  of  the  rent  of  the  residue 
of  the  lands  during  the  defendant's  unexpired 
term.  The  poor-rate  was  paid  afteraction  brought 
On  motion  by  the  plaintiff  to  strike  out  so  moch 
of  the  defence  as  relied  on  the  set-off  and  pay- 
ment into  court  as  embarrassing,  on  the  grounds 
that  the  payment  relied  on  by  way  of  set-off 
was  made  after  the  commencement  of  the 
action,  and  the  payment  into  court  was  irregu- 
lar and  not  in  compliance  with  the  statute  and 
Orel  XXX.  r.  5,  ana  that  the  counter-claim  could 
not  be  conveniently  tried  in  the  action,  the  court 
granted  the  motion,  and  set  aside  these  portion!) 
of  the  defence  and  counter-claim.  Eourke  t. 
Kicltol,  12  L.  R.,  Ir.  415— C.  P.  D. 

Defendant   against   Principal— Aetien 

by  Agent.] — In  an  action  of  trover  and  for 
goods  sold  and  delivered  a  defendant  cannot  set 
off  a  claim  for  unliquidated  damages,  which  he 
has  against  a  third  party  on  another  transaction, 
although  the  third  party  happens  to  be  the 
plaintiff's  principal.  Tagart  v.  Mams,  36 
W.  R.  469— D. 


1501 


PRACTICE    AND    PLEADING. 


1502 


Breath  of  Trust— Bill  of  Exchange.]— 

An  action  was  brought  by  a  tenant  for  life  and 
other  oestuis  que  trust  against  the  trustees  of  a 
settlement  for  breaches  of  trust.  One  of  the 
trustees  alleged  as  a  defence  that  the  breaches 
of  trust  had  been  sanctioned*  by  the  tenant  for 
life  ;  and  also  set  up  a  counter-claim  upon  a  bill 
of  exchange  for  45/.,  claiming  payment  of  that 
amount,  and  that  the  income  of  the  tenant  for 
life,  arising  from  the  property  subject  to  the 
settlement,  might  be  applied  towards  payment 
of  the  45/.,  and  any  other  sums  which  the 
trustee  might  be  ordered  to  pay  : — Held,  that 
the  counter-claim  must  be  struck  out  under  Ord. 
XXI.  r.  15.  Fendall  v.  O'ConneU,  52  L.  T.  538 
-V.-C.  B. 

Action  to  Becover  Possession  of  Land 


—Arrears  of  Annuity.]— In  an  action  by  the 
assignee  of  the  lessor  to  recover  possession  of 
demised  land  for  non-payment  of  rent,  the  de- 
fendant, the  assignee  of  the  lease,  delivered  a 
counter-claim  for  a  sum  exceeding  the  rent  in 
arrear,  and  consisting  partly  of  arrears  of  an- 
nuities claimed  by  the  defendant,  and  partly  the 
sums  which  the  defendant  alleged  she  had  been 
compelled  to  pay  for  head-rent  of  the  premises. 
The  annuities  were,  under  the  will  of  the 
original  lessor  (according  to  the  construction  of 
the  will  for  which  the  defendant  contended), 
chargeable  on  the  lessor's  interest  in  the  premises. 
The  court  refused  a  motion  by  the  plaintiff  to 
set  aside  the  counter-claim,  but  directed  the 
counter-claim  to  be  amended  by  setting  out  the 
material  portions  of  the  will  in  extenso,  with 


liberty  to  the  plaintiffto  reply  and  demur  to  the 

led  pleading. 
Jr.  137— Bx.  D. 


amended  pleading.  Whitton  v.  Hanlon,  16  L.  B., 


Third  Party  cannot  Counterelaim  against 
Plaintiff'.]  —  See  Eden  v.  Wear  dale  Coal  and 
Inn  Company,  ante,  col.  1463. 


5.  AMENDMENT  OP. 

Statement  of  Claim — Alteration  of  Place  of 
TriaL] — A  plaintiff  who  wishes  to  name  some 
place  other  than  Middlesex  as  the  place  of  trial 
must  name  it  in  the  original  statement  of  claim. 
If  he  omits  to  do  so  he  cannot  name  it  in  an 
amended  statement  of  claim;  and  if  he  has 
named  a  place  of  trial  in  the  original  statement 
of  claim,  he  cannot  alter  it  in  an  amended  state- 
ment of  claim.  Locke  v.  White,  33  Ch.  D.  308 ; 
55  L.  J.,  Ch.  731 ;  54  L.  T.  891  ;  34  W.  R.  747— 
C.A. 

Disallowance  ot] — See  Bourne  v.  Coulter, 
ante,  col.  1446. 

Extent  of  Power  of  Court.] — There  is  no  kind 
of  error  or  mistake  which,  if  not  fraudulent  or 
intended  to  overreach,  the  court  ought  not  to 
correct,  if  it  can  be  done  without  injustice  to  the 
other  party.  Courts  do  not  exist  for  the  sake  of 
discipline,  but  for  the  sake  of  deciding  matters 
in  controversy,  and  I  do  not  regard  sucn  amend- 
ment as  a  matter  of  favour  or  of  grace.  Cropper 
t.  Smith,  26  Ch.  D.  710 ;  53  L.  J.,  Ch.  891  ;  51 
L.  T.  733  ;  33  W.  B.  60— Per  Bowen,  L.J. 

After  Evidence  put  in.] — Leave  to  amend 


pleadings  ought  to  be  granted  even  at  the  last 
moment,  where  it  is  necesBary  to  enable  the  court 


to  finally  dispose  of  the  questions  between  the 
parties,  if  the  party  making  the  application  is 
acting  bona  fide,  and  his  opponent  can  be  fully 
indemnified  against  any  injury  occasioned  to 
him  ;  but  such  leave  is  an  indulgence,  and  ought 
only  to  be  granted  on  terms.  TUdesley  v. 
Harper  (10  Ch.  D.  393)  followed.  Trvfort,  In 
re,  Trafford  v.  Blano,  53  L.  T.  498  ;  34  W.  B.  56 
—Kay,  J. 

Grounds  for  Refusing  Leave.] — An  amend- 
ment in  a  statement  of  claim,  under  Ord. 
XXVI.  r.  1,  will  not  be  allowed,  unless  the  court 
is  satisfied  that  there  are  reasonable  grounds  for 
the  cause  of  action  sought  to  be  saved  by  the 
amendment,  and  that  such  cause  of  action  is 
presented  bon&  fide  for  the  benefit  of  the 
plaintiff.  Dillon  v.  Balfour,  20  L.  B.,  Ir.  600— 
Ex.D. 

Prejudice  to  Plaintiff.  ]— The  defendants, 

a  tramway  company,  were  sued  in  respect  of 
injuries  alleged  to  have  been  occasioned  to 
the  plaintiff  through  their  not  having  main- 
tained a  road  upon  which  their  tramway 
ran,  in  a  safe  and  proper  condition.  Six 
months  after  the  close  of  the  pleadings  the 
defendants  applied  for  leave  to  amend  their 
defence  by  setting  up  a  contract  under  s.  29  of 
the  Tramways  Act,  1870,  by  which  the  liability 
to  maintain  the  road  was  shifted  from  them  to 
the  vestry,  the  road  authority  of  the  district. 
Since  the  close  of  the  pleadings  the  statutory 
period  of  limitation  within  which  the  plaintiff 
could  have  sued  the  vestry  had  elapsed : — Held, 
that  the  defendants  ought  not  to  be  allowed  to 
amend  their  defence,  because  the  plaintiff  could 
not  be  placed  in  the  same  position  as  if  the 
defendants  had  pleaded  correctly  in  the  first 
instance.  Steward  v.  North  Metropolitan  Tram- 
ways Company,  16  Q.  B.  D.  556  ;  55  L.  J.,  Q.  B. 
157  ;  54  L.  T.  35  ;  34  W.  B.  316  ;  50  J.  P.  324— 
O.  A. 

Claim  barred  by  Statute  of  Limitations.] 

— A  plaintiff  will  not  be  allowed  to  amend  by 
setting  up  fresh  claims  in  respect  of  causes  of 
action  which  since  the  issue  of  the  writ  have 
become  barred  by  the  Statute  of  Limitations. 
Weldon  v.  Neal,  19  Q.  B.  D.  394  ;  66  L.  J.,  Q.  B. 
621 ;  35  W.  B.  820— C.  A. 

After  Joinder  of  Issue  and  Point  of  Law 
decided — Terms  on  which  Granted.]— An  action 
was  brought  by  a  municipal  corporation  to 
restrain  the  local  board  from  interfering  with 
water  mains  and  pipes  laid  down  by  the  corpora- 
tion in  the  district  of  the  local  board.  Issue  was 
joined  and  admissions  made  to  raise  the  point 
of  law  whether  the  corporation  had  any  legal 
right  to  break  up  the  streets  vested  in  the  local 
board,  which  was  decided  against  the  plaintiffs. 
The  plaintiffs  then  moved  to  be  allowed  to 
amend  their  reply  by  pleading  acquiescence  and 
estoppel  by  conduct  on  the  part  of  the  de- 
fendants : — Held,  that  the  court  would  allow 
the  amendment,  but  only  on  the  terms  of  the 
plajntiffs  paying  the  costs  which  might  turn  out 
to  have  been  thrown  away  by  reason  of  the 
amendment,  and  of  the  costs  of  the  motion 
being  costs  in  the  action,  but  to  be  the 
defendants  in  any  event.  Pretton  Corporation 
v.  Fullwood  Local  Board,  34  W.  B.  200— 
North,  J. 


1503 


PRACTICE    AND    PLEADING. 


1504 


Issue  joined  —  Action  set  down  —  Counter- 
claim for  Becovery  of  Land.] — In  an  action 
for  specific  performance  of  an  agreement 
to  grant  a  lease  and  build  a  house,  issue  had 
been  joined,  the  pleadings  showed  no  real  dis- 
pute between  the  parties,  and  the  action  had 
been  set  down  for  trial.  The  plaintiff  had 
taken  possession  under  the  agreement : — Held, 
that  leave  ought  not  to  be  given  to  the  defendant 
to  amend  his  counter-claim  by  adding  thereto  a 
claim  for  recovery  of  the  land  agreed  to  be  let. 
Clark  v.  Wray,  31  Ch.  D.  68  ;  55  L.  J.,  Ch.  119; 
63  L.  T.  485  ;  34  W.  B.  69— V.-C.  B. 

At  Trial— Evidence  given.] — An  allegation  in 
the  statement  of  claim  was  not  denied  in  the 
defence,  though  evidence  was  adduced  contra- 
dicting it.  On  the  defendant,  at  a  late  stage 
of  the  case,  asking  leave  to  amend :  —Held,  that, 
on  the  balance  of  convenience,  leave  to  amend 
must  be  refused.  Lowther  v.  Hearer,  59  L.  T. 
631 ;  37  W.  B.  55— Kekewich,  J.  Affirmed  41 
Ch.  D.  248  ;  58  L.  J.,  Ch.  482  ;  60  L.  T.  310  ; 
37  W.  B.  465— C.  A. 

The  plaintiff  claimed  specific  performance  of 
a  contract  for  the  purchase  of  a  business  by  the 
defendant,  or,  in  the  alternative,  damages.  The 
statement  of  claim  contained  an  allegation, 
which  was  denied  by  the  defendant,  that  the 
plaintiff  "is  and  always  has  been  ready  and 
willing  to  perform  the  contract  so  far  as  it 
is  to  be  performed  by  him."  The  plaintiff,  after 
action  brought,  sold  the  property,  the  subject- 
matter  of  the  contract,  but  neither  before  nor  at 
the  hearing  of  the  action  did  he  ask  to  amend  by 
striking  out  the  claim  for  specific  performance : 
— Held,  that  the  action  being  for  specific  per- 
formance, and  the  plaintiff  by  his  own  act 
having  made  performance  impossible,  he  was 
not  ready  and  willing  to  perform  the  same  at 
the  time  of  the  hearing  of  the  action,  and  that 
as  he  had  not  applied  to  amend  the  claim  at  the 
proper  time,  namely,  either  before  the  hearing 
or  before  the  case  was  opened  at  the  hearing, 
leave  to  amend  would  not  be  granted.  Hip- 
grave  v.  Case,  28  Ch.  D.  356  ;  54  L.  J.,  Ch.  399  ; 
52  L.  T.  242— C.  A. 

The  statement  of  claim  in  an  action  for  fraudu- 
lent misrepresentation  in  a  prospectus  relating 
to  a  company,  contained  a  general  allegation, 
that  the  prospectus  comprised  many  untrue  and 
misleading  statements,  and  then  set  out  certain 
specific  instances  of  alleged  misrepresentation, 
amongst  others  the  following :  "  That  the 
plastic  or  surface  clay  on  the  Fletton  property 
was  of  an  average  depth  of  thirteen  feet, 
whereas,  in  fact,  at  the  deepest  part  such  clay 
was  only  eleven  feet  or  thereabouts  in  depth, 
diminishing  to  two  feet."  At  the  trial  the 
plaintiff  proposed  to  adduce  evidence  that  there 
was  an  average  depth  of  six  feet  of  clay,  that 
only  four  feet  of  this  could  be  used  for  making 
the  best  bricks,  and  that  instead  of  there  being 
thirty-three  acres  in  the  property,  as  stated  in 
the  prospectus,  there  were  in  reality  only 
eighteen  acres : — Held,  that  evidence  of  these 
alleged  misrepresentations  could  not  be  admitted 
as  they  had  not  been  specifically  pleaded,  .and 
that  leave  to  amend  would  not  be  granted. 
Symonds  v.  City  Bank,  34  W.  B.  364— North,  J. 

In  a  foreclosure  action  a  defence  and  counter- 
claim were  put  in  claiming  payment  of  what 
should  be  found  due  to  the  defendant  on  taking 
the  accounts,  but  not  expressly  claiming  to  open 


the  accounts  or  specifying  improper  charges. 
An  application  to  amend  at  the  hearing  was 
refused.  The  court,  however,  permitted  the 
parties  to  give  evidence  as  to  the  accounts,  on 
the  ground  that  it  might  be  the  duty  of  the  court, 
under  Ord.  XXVlII.  r.  1,  to  make  all  such 
amendments  as  should  be  necessary  for  deter- 
mining the  real  question  between  the  parties, 
and  having  heard  the  evidence  without  ordering 
amendment,  the  court  treated  the  pleadings  is 
amended,  and  decided  on  the  evidence.  Ward  v. 
Sharpy  53  L.  J.,  Ch.  313  ;  50  L.  T.  557;  32 
W.  B.  584— North,  J. 

Where  in  an  action  on  an  agreement  for  sale 
reserving  the  vendor's  lien  a  defence  of  the  Bills 
of  Bale  Act  is  intended  to  be  relied  on,  it  should 
be  pleaded ;  but  leave  to  amend  was  given  at 
the  trial,  so  as  to  raise  the  question.  Cofarn  r. 
Collins,  56  L.T .  431  ;  35  W.  B.  610— Kekewich,  J. 

Matter  struck  out — Time  for  Appealing  ex- 
pired.]— In  action  under  s.  32  of  the  Patents 
Acts  of  1883  to  restrain  a  patentee  from  issuing 
threats,  the  plaintiffs,  in  their  statement  of 
claim,  alleged  that  the  defendant's  patent  was 
invalid  ;  and  the  court  ordered  this  to  be  struck 
out.  After  the  time  for  appealing  had  long 
expired,  the  plaintiffs  applied  to  the  judge,  to 
whom  the  action  had  been  transferred,  for  leave 
to  amend  by  inserting  the  same  allegation.  The 
application  was  refused : — Held,  by  Cotton  and 
Bowen,  L.J  J.,  that  liberty  to  amend  ought  to  he 
given,  but  upon  special  terms,  in  order  that  the 
defendants  might  not  suffer  any  loss  by  the 
plaintiffs  not  having  taken  the  proper  eourseof 
appealing  in  due  time  from  the  first  order. 
Fry,  L  J.,  dissented,  and  was  of  opinion  that, 
though  the  amendment  was  in  itself  proper,  it 
was  not  competent  to  the  court  to  allow  it,  when 
doing  so  was  inconsistent  with  and  substantially 
reversed  the  first  order  of  the  court,  which  wa* 
not  liable  to  be  appealed  from.  Kurtz  v.  Spa*, 
36  Ch.  D.  770  ;  58  L.  T.  320 ;  36  W.  B,  43S- 
C.  A. 

6.    STBIKING  OUT. 

For  Prolixity.]]— Although  there  is  no  rule  of 
court  specially  giving  power  to  the  court  to  take 
pleadings  off  the  file  for  prolixity,  yet  the  court 
has  an  inherent  power  to  do  so,  to  prevent  its 
records  from  being  made  the  instruments  of  op- 
pression. Hill  v.  Hart-Davit,  26  Ch.  D.  470; 
51  L.  T.  279— C.  A. 

Scandalous  and  Embarrassing  Hatter.]— L* 
brought  an  action  against  B.  claiming  (1)  tore- 
strain  him  from  continuing  a  connexion  between 
his  premises  and  L.'s  private  drain ;  (2)  to  have 
a  building  which  had  been  erected  by  B.  pulled 
down  as  darkening  L.'s  ancient  lights ;  (3)  dam- 
ages. B.,  by  his  defence,  alleged  that  the  drain  in 
question  did  not  belong  to  L. ;  that  he  (B.)  bad 
never  connected  his  premises  with  any  drain 
belonging  to  L.  who,  however,  had  constructed  a 
new  drain,  for  private  purposes  of  his  own,  below 
and  in  connexion  with  the  existing  main  sewer; 
and  he  alleged  that  "  the  plaintiff's  acts  afore- 
said were  in  various  particulars  unlawful,  bat 
the  defendant  is  in  no  wise  responsible  for  them : n 
— Held,  that  the  latter  allegation  was  ambiguous, 
"  scandalous,  and  embarrassing  "  and  most  be 
struck  out.  Lumb  v.  Beaumont,  49  L.  1. 77J— 
Pearson,  J. 


1505 


PRACTICE    AND    PLEADING. 


1506 


Discontinuance  at  to  Fart  of  Claim.] — In 

an  action  respecting  a  policy  of  marine  insurance, 
the  plaintiff,  the  underwriter,  by  his  statement 
of  claim  alleged  that  the  risk  was  of  a  special 
and  dangerous  character,  as  the  defendants  well 
knew;  that  they  failed  to  communicate  such 
fact  to  the  plaintiff ;  that  the  ship  was  unsea- 
worthy  when  she  commenced  her  voyage  ;  and 
that  the  defendants  knew  of  bat  concealed  the 
fact  of  her  being  unseaworthy.  The  defendants 
admitted  that  the  ship  was  unseaworthy,  but 
stated  that  the  unseaworthiness  was  solely  owing 
to  her  being  overladen,  and  was  not  known  to 
them.  They  wholly  denied  the  allegations  of 
concealment  and  non-communication  of  facts. 
The  plaintiff  in  his  reply  joined  issue  generally, 
but  stated  that  he  did  not  proceed  further  in 
this  action  with  the  charges  in  the  statement  of 
claim  as  to  concealment  and  non-communication 
by  the  defendants  of  material  facts : — Held, 
that  Ord.  XIX.  r.  27,  applied ;  that  the  allega- 
tions in  the  statement  of  claim  were  clearly 
unnecessary,  because  the  plaintiff  subsequently 
stated  that  he  did  not  intend  to  ask  any  relief 
grounded  on  concealment  or  non-communica- 
tion, and  that  they  were  consequently  scandalous 
and  embarrassing,  and  must  be  struck  out. 
Brooking  v.  Maudslay,  55  L.  T.  343  ;  6  Asp. 
M.  C.  13— Kay,  J. 


Action  to  enforee  Compromise  of  Previous 
J — In  an  action  to  enforce  the  compro- 
mise of  a  former  action  brought  in  assertion  of 
rights  of  water,  as  to  which  disputes  had  arisen, 
the  plaintiff  will  not  be  allowed,  by  setting  out 
in  his  statement  of  claim  the  allegations  as  to 
his  right  and  the  corresponding  liabilities  of  the 
defendant  which  were  contained  in  his  former 
statement  of  claim,  to  re-litigate  the  questions 
raised  in  the  former  action,  and  intended  to 
have  been  finally  disposed  of  by  the  compromise. 
Such  allegations  were  accordingly  ordered  to  be 
struck  out  under  Ord.  XIX.  r.  27,  as  embarras- 
sing and  unnecessary,  though  a  motion  for  that 
purpose  had  been  refused  by  the  court  below. 
Knowlc*  y.  Roberts,  38  Ch.  D.  263  ;  58  L.  T.  259 
-C.A. 

Inconsistent  Defences.] — Pleadings  will 

not  necessarily  be  struck  out  as  embarrassing 
because  they  are  inconsistent.  Morgan,  In  re, 
Owen  v.  Morgan,  35  Ch.  D.  492 ;  56  L.  J.,  Ch. 
603  ;  56  L.  T.  503  ;  35  W.  B.  705— C.  A. 

In  an  action  by  the  representatives  of  a  wife 
against  the  executor  of  the  husband  in  respect 
of  sums  of  money  and  stock  alleged  to  have 
been  received  by  the  husband  as  trustee  for  the 
separate  use  of  the  wife,  the  defence  pleaded 
(1)  that  the  sums  had  not  been  received ;  (2)  if 
received,  not  as  trustee  ;  (3)  if  received,  repay- 
ment ;  (4)  alternatively,  free  gift  by  the  wife 
to  the  husband ;  (5)  alternatively,  accord  and 
satisfaction ;  (6)  alternatively,  set-off  ;  (7)  the 
Statute  of  Limitations;  (8)  laches  and  delay. 
On  a  summons  to  have  defences  3,  4,  5,  and  6 
struck  oat,  it  was  held  that  the  defence  was 
embarrassing,  and  the  defendant  had  leave  to 
amend.  Upon  appeal,  the  court  discharged 
the  order,  and  directed  the  defendant  either 
to  amend  or  to  give  particulars  within  fourteen 
days  after  discovery  of  documents.    lb. 


Reasons  why  Act  not  intra  Vires.]— In 

an  action  by  a  stockholder  in  a  railway  com- 
pany to  restrain  the  company  from  subscribing 
out  of  their  funds  the  sum  of  1,000Z.  towards  the 
Imperial  Institute,  on  the  ground  that  the  pro- 
posed subscription  was  ultra  vires  and  illegal, 
the  company  delivered  a  defence  which  con- 
tained paragraphs  alleging  a  circular  from  the 
secretary  of  the  Institute  inviting  railway 
companies  to  subscribe,  and  stating  the  amounts 
of  the  capital  and  average  net  annual  income 
of  the  company,  the  objects  of  the  Institute, 
an  agreement  with  another  railway  company 
for  through  booking  to  the  Institute,  which  it 
was  said  would  lead  to  increased  traffic  over  the 
defendants'  line,  and  the  practice  of  railway 
companies  as  to  contributing  to  exhibitions, 
regattas,  race  meetings,  and  other  objects  cal- 
culated to  encourage  traffic  over  their  lines. 
The  plaintiff  moved  under  Order  XIX.  rule  27, 
to  strike  out  these  paragraphs: — Held,  that  a 
reasonable  latitude  must  be  given  to  that  rule, 
and  parties  must  be  allowed  to  plead  reasons 
why  a  particular  act  said  to  be  ultra  vires  was 
not  ultra  vires ;  that  it  would  be  a  wrong 
application  of  the  rule  to  order  such  reasons  to 
be  struck  out  unless  the  matter  sought  to  be 
struck  out  was  utterly  irrelevant ;  and  that  it 
was  not  the  meaning  of  the  rule  that  any  matter 
alleged  in  the  defence  as  a  reason  should  be 
struck  out  merely  because  it  was  a  bad  reason  ; 
and  that  it  could  not  be  said  that  any  part  of  the 
defence  was  so  irrelevant  that  the  rule  ought  to 
be  applied.  Tomkinson  v.  South  Eastern  Rail* 
way,  57  L.  T.  358— Kay,  J. 

Frivolous  and  Vexatious.] — See  Lawrence  v, 
Norreys  {Lord),  ante,  col.  1486. 

Ho  reasonable  Cause  of  Action  or  Defence.] — 

See  ante,  col.  1464. 

Hot  stating  Title.]— See  ante,  col.  1498. 

Embarrassing  Counterclaim.] — See  ante,  cols. 
1500,  1501. 


7.    DEFAULT    IN    PLEADING   AND  PRO- 
CEEDINGS   THEREON. 

Default  in  Defence.] — See  Marshall  v.  Jones, 
ante,  col.  1499. 

Motion  for  Judgment — Proof  of  Case.]— An 
actios  was  brought  by  a  vendor  for  specific 
performance  of  an  agreement  against  a  pur- 
chaser who  was  in  possession.  The  statement 
of  claim  set  out  the  agreement.  The  defendant 
had  not  put  in  any  defence.  A  motion  was 
made  on  behalf  of  the  plaintiff  for  judgment  in 
default  of  defence,  the  action  being  set  down  as 
a  short  cause.  The  agreement  had  not  been 
proved;  but  it  was  contended  that  the  defen- 
dant, by  making  default  in  defence,  had 
admitted  the  agreement  as  alleged,  and  that 
evidence  of  it  was  consequently  unnecessary  : — 
Held,  that  the  agreement  must  be  duly  verified 
by  affidavit,  and  the  action  was  ordered  to  6tand 
over  for  that  purpose.  Holmes  v.  Shaw,  52  L.  T. 
797— Kay,  J. 

On  a  motion  for  judgment  in  default  of  plead- 
ing, under  Ord.  XXVIII.  r.  10,  the  plaintiff, 

3  C 


1607 


PRACTICE   AND   PLEADING. 


1508 


where  his  title  depends  on  documents,  must  pro- 
duce and  prove  them.  CrUford  v.  Doddy  16 
L.  R.,  Ir.  83— M.B. 

Where  in  a  partition  action  some  of  the  plain- 
tiffs and  some  of  the  defendants  were  infants, 
and  the  plaintiffs  moved  for  judgment  in  default 
of  defence:— Held,  that  no  affidavit  verifying 
the  statement  of  claim  was  necessary.  Ripley 
v.  Sawyer,  31  Ch.  D.  494  ;  55  L.  J.,  Ch.  407  ;  54 
L.  T.  294  ;  34  W.  R.  270— Pearson,  J. 

In  a  foreclosure  action  against  a  mortgagor 
and  subsequent  mortgagees  the  mortgagor  made 
default  of  appearance,  and  the  remaining  defen- 
dants appeared  but  made  default  in  pleading. 
Upon  motion  for  judgment  under  Ord.  XXVII. 
r.  11,  the  plaintiffs  filed  an  affidavit  in  support 
of  their  claim : — Held,  that  the  costs  of  the 
affidavit  must  be  disallowed  against  all  the 
defendants.  Jones  v.  Harris,  55  L.  T.  884 — 
Stirling,  J. 

The  court  does  not  require  evidence  upon 
motion  for  judgment  in  default  of  pleading. 
Bagley  v.  SearU,  infra. 

Delivery  of  Minutes.]— In  a   vendor's 

action  for  specific  performance  the  plaintiff 
moved  for  a  common  form  judgment  against  the 
defendant,  he  having  made  default  in  pleading. 
The  notice  of  motion  did  not  state  the  terms  of 
the  proposed  judgment : — Held,  having  regard  to 
the  form  of  the  notice  of  motion,  that  minutes 
must  be  prepared  and  a  copy  delivered  to  the 
defendant.  Bagley  v.  Searle,  56  L.  T.  306  ;  35 
W.  R.  404— Stirling,  J. 

Upon  a  motion  for  judgment  in  default  of 
pleading  in  a  specific  performance  action,  the 
plaintiff  asked  for  an  order  in  the  usual  form, 
but  no  minutes  of  the  proposed  judgment  had 
been  left  with  the  judge's  clerk  before  the  cause 
was  put  into  the  paper  : — Held,  that,  in  such  a 
case,  where  a  copy  of  the  minutes  has  not  been 
delivered,  the  plaintiff  should  state  in  his  notice 
of  motion  the  precise  words  of  the  judgment  for 
which  he  asks.  Be  Jongh  v.  Newman,  56  L.  T. 
180 ;  35  W.  R.  403— Stirling,  J. 

Judgment    confined   to    Statement   of 

Claim.] — Where  a  married  woman  is  the  defen- 
dant to  an  action  on  a  contract,  and  has  made 
default  in  delivering  a  defence,  the  plaintiff's 
statement  of  claim  must  contain  an  allegation 
that  the  defendant  has  a  separate  estate  ;  other- 
wise the  court  will  refuse  to  make  an  order 
against  the  defendant  on  the  statement  of  claim 
under  Ord.  XXVII.  r.  11.  Tetley  v.  Griffith,  57 
L.  T.  673  ;  36  W.  R.  96— Chittv,  J. 

By  his  statement  of  claim  the  plaintiff  asked 
for  specific  performance  and  ancillary  relief,  but 
not  for  any  declaration  of  lien.  Upon  a  motion 
for  judgment  as  in  default  of  defence  : — Held, 
that  the  plaintiff  could  not  have  any  declaration 
of  lien.  Tacon  v.  National  Standard  Invest- 
ment Company,  56  L.  J.,  Oh.  529  ;  66  L.  T.  166 
— Stirling,  J. 

In  an  action  for  specific  performance  the 
statement  of  claim  alleged  an  agreement  (to 
which  agreement  the  plaintiff  claimed  leave  to 
refer)  whereby  the  defendant  agreed  to  purchase 
from  the  plaintiff  certain  hereditaments  situate 
in  the  parish  of  St.  Peter  the  Great,  otherwise 
sub-deanery,  in  the  city  of  Chester  and  described 
in  the  schedule  to  the  said  agreement.  The 
schedule  was  not  set  out  in  the  statement  of 
claim.     The  defendant  appeared,  but  did  not 


put  in  a  defence.  On  the  motion  for  judgment 
m  default  of  delivery  of  a  defence :— Held,  that 
the  evidence  was  admissible  as  to  the  agreement. 
Held  also,  that  the  property  not  being  sufficiently 
described  in  the  statement  of  claim,  the  state- 
ment of  claim  must  be  amended,  setting  oat  the 
property  sufficiently  to  enable  the  court  to  give 
judgment  in  accordance  with  the  pleadings,  and 
the  amended  statement  of  claim  must  be 
re-served.  Smith  v.  Buehan,  58  L.  T.  710 ;  36 
W.  R.  631— Kay,  J. 

Defence  Delivered  after  Time— Setting  aside.] 
— Where,  after  the  time  for  delivery  of  the  de- 
fence had  expired,  and  an  order  had  been  made 
fixing  the  mode  of  trial,  a  defendant  delivered  his 
defence  without  leave,  the  court,  on  motion  by 
the  plaintiff,  set  the  defence  aside.  Wilstm  r. 
Noble,  11  L.  &,  Ir.  546— V.-C. 

In  an  action  of  ejectment  on  the  title,  a  defen- 
dant applied  for  leave  to  deliver  a  defence  after 
the  time  limited  for  doing  so  had  expired ;  and 
such  application  having  been  refused,  but  before 
judgment  entered,  he  delivered  and  filed  a 
defence  :  The  court,  on  motion  by  the  plaintiff, 
set  it  aside  as  irregular.  Meehan  v.  Meeha%  14 
L.  R.,  Ir.  300— C.  P.  D.  See  also  Harding  t. 
Lyons,  ante,  col.  1499. 

Not  to  be  treated  u a  Nullity.]— S.gare 


to  G.  a  charge  upon  costs  due  from  B.  to  S.   6. 
brought  his  action  against  8.  and  B.,  asking  for 
an  account  and  foreclosure  against  8.,  and  that 
B.  might  be  ordered  to  pay  the  amount  of  the 
bill  of  costs  (359Z.)  into  court.    The  time  for  de- 
livering defence  was  enlarged  from  the  1st  of 
August  to  the  16th  of  August,  1882.   No  defence 
having  been  delivered,  notice  of  motion  for  judg- 
ment was  served  on  the  18th  of  November.   On 
the  2nd  of  December  B.  took  out  a  summons  for 
leave  to  deliver  defence,  which  was  dismissed  on 
the  6th.    The  defence  which  he  proposed  to  put 
in  alleged  that  there  were  other  dealings  between 
B.  and  8.,  and  that  no  substantial  part  of  the  bill 
of  costs  was  due,  and  moreover  that  B.  was  going 
to  have  the  bill  taxed.    On  the  J  9th  of  February, 
1883,  the  motion  for  judgment  came  on  for  bear- 
ing.   The  court  refused  to  look  at  the  defence, 
and  gave  a  judgment  directing  an  account  against 
S.,  and  ordering  B.  to  bring  the  3592.  into  court 
B.   appealed  : — Held,  that  on  motion  for  judg- 
ment for  want  of  defence,  if  a  defence  had  been 
put  in,  though  irregularly,  the  court  would  not 
disregard  it,  but  will  see  whether  it  sets  op 
grounds  of  defence  which,  if  proved,  will  be  ma- 
terial, and  if  so,  will  deal  with  the  case  in  snch 
manner  that  justice  can  be  done,  and  that  in  the 
present  case  the  order  for  bringing  the  3592.  into 
court  must  be  discharged,  and  an  account  directed 
of  what  was  due  from  B.  to  S.  in  respect  of  the 
bill  of  costs.     Gibbings  v.  Strong,  26  Ch .  D.  66 ; 
50  L.  T.  578  ;  32  W.  R.  757— C.  A. 

The  defendants  in  an  action,  having  obtained 
leave  for  further  time  to  put  in  their  defence, 
suffered  that  time  to  expire.  The  plaintiff 
accordingly  moved,  under  Ord.  XXVII.  r.  11. 
of  the  Rules  of  Court,  1883.  for  judgment  on  h» 
statement  of  claim  in  default  of  defence.  The 
defendants  being  served  with  notice  of  motion 
delivered  their  defence,  but  did  not  appear  at 
the  hearing  of  the  motion  : — Held,  that  the 
defence  which  had  been  delivered  ought  not  to 
be  treated  as  a  mere  nullity,  though  the  plain- 
tiff had  rightly  declined  to  Btate  it  to  the  court ; 


1609 


PRINCIPAL    AND    AGENT. 


1510 


bnt  that,  as  the  defence  was  not  duly  in  form, 
the  judgment  would  be  according  to  the  state- 
ment of  claim,  with  a  direction  that  the  order 
was  not  to  be  drawn  up  for  a  week,  and  that  the 
order  now  made  was  to  be  served  on  the  defen- 
dants with  notice  that  they  were  to  be  at 
liberty,  within  seven  days  from  such  service,  to 
move  to  discharge  the  order.  Montagu  v.  Land 
Corporation  of  England,  56  L.  T.  730— Chitty,  J. 
A  defendant  made  default  in  putting  in  a 
defence  under  Ord.  XXIX.  r.  10  (1875),  and  the 
plaintiff  gave  notice  of  motion  for  judgment  in 
default  of  defence.  But  before  the  motion  was 
heard  the  defendant  put  in  a  defence : — Held, 
that,  though  put  in  after  time,  it  could  not  be 
treated  as  a  nullity,  and  that  the  plaintiff  was 
not  entitled  to  judgment  in  default  of  defence. 
But  as  the  defence  disclosed  no  real  defence  to 
the  action,  the  Court  of  Appeal  ordered  the 
notice  of  motion  to  be  amended  and  judgment 
to  be  given  for  the  plaintiff  on  the  admissions  in 
the  defence.  Gill  v.  Woodjin,  25  Ch.  D.  707  ; 
53  L.  J.,  Ch.  617 ;  50  L.  T.  490 ;  32  W.  B.  393 
— C.  A. 

Default  of  Pleading  to  Counterclaim,] — Ord. 
XXIII.  r.  4,  and  XXVII.  rr.  11, 12,  of  the  Bules 
of  1883,  apply  when  a  motion  for  judgment  in 
default  of  pleading  is  made  after,  although  the 
default  itself  is  made  before,  they  came  into 
operation.  And  these  rules  apply  to  a  case  where 
a  defendant  to  a  counterclaim  has  made  default 
in  pleading  to  it,  and  entitle  the  plaintiff  in  the 
counterclaim  to  move  for  judgment  against  the 
defaulting  defendant.  Street  v.  Crump,  25  Ch. 
D.  68  ;  49  L.  T.  397  ;  32  W.  B.  89— North,  J. 

Where  a  plaintiff  fails  to  deliver  a  defence  to  a 
counterclaim,  and  his  action  is  dismissed  under 
a  master's  order,  judgment  on  the  counterclaim 
can  only  be  signed  by  the  defendant  upon  a 
motion  for  judgment  under  Ord.  XXVIL  r.  11. 
Higgins  v.  Scott,  21  Q.  B.  D.  10 ;  56  L.  J.,  Q.  B. 
97  ;  58  L.  T.  38a— D. 

Default  in  delivering  Reply.]  —  Where  the 
plaintiff  made  default  in  delivering  a  reply 
to  a  defence  which,  as  to  part  of  a  claim  for 
goods  sold,  alleged  that  the  goods  were  not  up  to 
sample,  and  had  been  returned,  and,  admitting 
the  residue  of  the  claim,  paid  the  amount  of 
such  residue  into  court ;  the  defendant  was 
allowed  on  motion  to  enter  final  judgment,  with 
the  costs  of  the  action,  and  3Z.  3*.  costs  of  the 
application.  Fuuell  v.  01 Boyle,  14  L.  R.,  Ir. 
5a— Q.  B.  D. 

Reply  delivered  after  Time.] — A  reply  de- 
livered more  than  three  weeks  after  the  delivery 
of  the  defence  is  irregular,  unless  the  time 
for  delivering  the  reply  has  been  extended 
by  the  court.  Webb  v.  Kerr,  14  L.  B.,  Ir.  294 
— Q.  B.  D. 

Default  in  Beply  —  Dismissal  for  want  of 
Prosecution.] — See  London  Road  Car  Company 
v.  Kelly,  ante,  col.  1448. 

Judgment  on  Admissions.] — A  defen- 
dant is  entitled  under  Ord.  XXXIX.  r.  9,  to 
judgment  on  admissions  of  facts  in  the  pleadings, 
by  reason  of  the  plaintiff  not  delivering  a  reply 
to  the  defence.  Elliott  v.  Harris,  17  L.  B., 
Ir.  351— M.  B. 


PREMIUM. 

On  Insurance  Policies.] — See  Insurance. 

On  Dissolution  of  Partnership.]— &m  Part- 
nership. 


PRESCRIPTION. 

See  BASEMENT. 


PRESENTATION   TO 
LIVINGS. 

See  ECCLESIASTICAL  LAW. 


PRESUMPTIONS. 

See  EVIDENCE. 


PRINCIPAL  AND  AGENT. 

I.  Bights  and  Liabilities  as  between 
Principal  and  Third  Parties. 

1.  Action  by  Principal  on  Contract  by 

Agent,  1510. 

2.  Liability     of     Principal    to     Third 

Party, 

a.  On  Contracts,  1512. 

b.  Other  Acts  of  Agent,  1616. 

3.  Effect  of  Factor?  Actt,  1517. 

II.  Liabilities  op  Agent  to  Third  Par- 
ties, 1518. 

III.  Bights  and  Liabilities  as  between 
Principal  and  Agent,  1521. 


I.  BIGHTS  AND  LIABILITIES  A8  BETWEEN 
PBINCIPAL  AND  THIBD  PABTIES. 

1.  Action  by  Principal  on  Contract  by 

Agent. 

Undisclosed  Principal  —  Set-off  against 
Principal  of  Debt  due  from  Agent— Estoppel.] 
— Where  an  agent  sells  in  his  own  name  for 
an  undisclosed  principal,  and  the  principal  sues 
the  buyer  for  the  price,  the  buyer  cannot  set-off 
a  debt  due  from  the  agent  unless  in  making 
the  contract  he  was  induced  by  the  conduct  of 
the  principal  to  believe,  and  did  in  fact  believe, 
that  the  agent  was  selling  on  his  own  account. 

3  0  8 


1511 


PRINCIPAL    AND    AGENT, 


1512 


Cooke  y.  Ethelby,  12  App.  Cas.  271 ;  56  L.  J., 
Q.  B.  606  ;  56  L.  T.  673  ;  35  W.  R.  629— H.  L.  (E.) 

L.  &  Co.  sold  cotton  to  C.  in  their  own  names, 
but  really  on  behalf  of  an  undisclosed  principal. 
G.  knew  L.  &  Go.  were  in  the  habit  of  dealing 
both  for  principals  and  on  their  own  account, 
and  had  no  belief  on  the  subject  whether  they 
made  this  contract  on  their  own  account  or  for 
a  principal : — Held,  that  G.  could  not  in  an 
action  brought  by  the  principal  for  the  price  of 
the  cotton  set-off  a  debt  due  from  L.  &  Co.    lb. 

Merchants  in  London,  upon  the  instruction  of 
shipping  agents  at  Havannah,  with  respect  to  a 
cargo  of  tobacco  to  be  consigned  to  the  London 
merchants,  and  after  receiving  the  shipping  docu- 
ments, effected  policies  of  marine  insurance  in  the 
ordinary  form  on  behalf  and  for  the  benefit  of  all 
parties  whom  it  might  concern.  The  Havannah 
agents  shipped  and  consigned  the  tobacco  in  their 
own  names,  but  were  in  fact  acting  as  commission 
agents  for  Havannah  merchants  to  whom  the 
tobacco  belonged ;  and  the  London  merchants, 
before  effecting  the  policies,  had  notice  that  the 
Havannah  agents  had  an  unnamed  principal. 
A  total  loss  having  occurred,  the  London  mer- 
chants received  the  policy  moneys,  but  before 
receipt  had  notice  that  the  moneys  were  claimed 
by  the  Havannah  principals: — Held,  that  an 
action  lay  by  the  Havannah  principals  against 
the  London  merchants  for  the  policy  moneys  ; 
that  the  London  merchants  were  not  entitled  to 
a  lien  upon  the  moneys  for  the  balance  of  their 
general  account  with  the  Havannah  agents,  and 
could  not  in  that  action  set  off  their  claim  to  that 
balance,  or  set  off  anything,  except  the  premiums, 
stamps,  and  commission  in  respect  of  the  in- 
surance. Mildred  v.  Maivons,  8  App.  Gas.  874  ; 
53  L.  J.,  Q.  B.  33 ;  49  L.  T.  686 ;  32  W.  R. 
125 ;  5  Asp.  M.  C.  182— H.  L.  (E.). 

Held,  also,  by  Lord  Blackburn,  that  the  case 
fell  within  the  Factors  Act  (6  Geo.  4,  c  94),  s.  1. 
Sed  quaere,  by  Lord  Fitzgerald,    lb. 

Ignorance  of  Principal— Whether  Knowledge 
of  Agent  is  Knowledge  of  Principal.] — A  policy 
of  marine  insurance  effected  through  a  broker 
is  not  rendered  void  by  the  non-disclosure  of  a 
material  fact  which  was  unknown  to  the  assured 
and  to  the  broker,  though  it  had  come  to  the 
knowledge  of  a  different  broker  while  previously 
employed  by  the  assured  to  effect  another  policy 
in  respect  of  the  same  risk.  Observations  on 
Fitzkerbert  v.  Matlter  (1  T.  B.  12),  Gladstone  v. 
King  (1  M.  &  S.  35),  Stribley  v.  Imperial  Marine 
Insurance  Company  (45  L.  J.,  Q.  B.  396),  and 
JProudfoot  v.  Montefiore  (36  L.  J.,  Q.  B.  225). 
Blackburn  v.  Vigors,  12  App.  Gas.  531 ;  57  L.  J., 
Q.  B.  114  ;  57  L.  T.  730  ;  36  W.  R.  449 ;  6  Asp. 
M.  C.  216— H.  L.  (E.). 

The  plaintiffs,  a  firm  of  underwriters,  in- 
structed Glasgow  brokers  to  effect  a  re-insurance 
on  an  overdue  ship,  The  Glasgow  brokers 
thereupon  telegraphed  to  their  London  agents 
to  insure  at  the  rate  named  by  the  plaintiffs. 
The  London  agents  replied  stating  the  market 
rate.  Meantime  the  Glasgow  firm  received  in- 
formation of  the  loss  of  the  vessel,  and,  without 
communicating  this  to  the  plaintiffs  or  to  the 
London  agents,  telegraphed  to  the  London 
agents  in  the  plaintiff's  name  to  insure  at  the 
market  rate.  Subsequent  negotiations  were 
carried  on  directly  between  the  plaintiffs  and 
the  London  firm,  who  effected  a  re-insurance  at 
a  higher  rate  than  that  originally  named  by  the 


plaintiffs.  Upon  an  action  being  brought  against 
underwriters  of  this  policy,  the  jury  found  that 
the  Glasgow  firm  were  employed  to  effect  the 
insurance,  and  that  it  was  effected  through  their 
agency  : — Held,  upon  this  finding,  that,  there 
having  been  concealment  of  material  facts  by 
the  Glasgow  firm,  the  plaintiffs  could  not  recover 
upon  the  policy.  Blackburn  v.  Hatlam,  21  Q.  B. 
D.  144  ;  67  L.  J.,  Q.  B.  479 ;  59  L.  T.  407;  36 
W.  R.  856— D. 


2.  Liability  op  Principal  to  Thibd  Pasty. 

a.  On  Contract*. 

Bight  to  sue  Undisclosed  Principal— Entail 
Insurance  Company.]— &f  ante,  coL  1020. 

Election  to  charge  Undisclosed  Principal]— 
See  Dunn  v.  Newton,  post,  coL  1521. 

Authority  of  Agent  to  Sign  Memorandum  ef 
Association.] — A  man's  name  maybe  subscribed 
to  the  memorandum  of  association  of  a  company 
by  his  agent,  and  it  is  not  necessary  that  the 
agent  should  be  authorised  to  sign  his  principal's 
name  by  deed  under  seal.  Whitley  $  Co.,  Is  «» 
Callan,  Ex  parte,  32  Ch,  D.  337  ;  55  L.  J.,  Ch. 
540  ;  64  L.  T.  912  ;  34  W.  R.  505— C.  A. 

Variation  between  Bought  and  Sold  Hotss.]- 
Where  a  broker  employed  by  the  seller  alone, 
effects  a  contract  by  means  of  a  note  sent  to  and 
accepted  by  the  purchaser,  a  variation  between 
this  note  and  a  note  sent  by  the  broker  to  the 
seller  is  immaterial.  Mc Cavil  v.  Stravu,  1 
C.  &  £.  106— Stephen,  J. 

Bill  drawn  on  Firm — Acceptance  in  Heme  of 
Individual— Authority.]— The  defendant,  apart* 
ner  in  a  firm  of  C.  Brothers,  agreed  with  her  oo 
partner  that  the  partnership  should  be  dissolved, 
that  the  affairs  of  the  firm  should  be  liquidated 
by  an  agent,  who  should  realise  the  assets  and 
pay  the  creditors,  and  that  the  business  should 
thereafter  be  carried  on  by  the  defendant.  The 
defendant  and  the  agent  opened  a  joint  banking 
account,  and  requested  the  bank  to  honour 
drafts  signed  by  either  of  them.  Cheques  were 
drawn  on  the  joint  account,  signed  by  the  agent 
in  the  names  of  the  defendant  and  himself,  and 
bills  were  drawn  on  C.  Brothers,  and  accepted 
by  the  agent  in  the  names  of  the  defendant  and 
himself,  and  honoured.  The  defendant  knew 
nothing  of  these  cheques  and  bills.  The 
plaintiff  sued  as  indorsee  for  value  of  a  bill  of 
exchange,  drawn  on  C.  Brothers,  accepted  by 
the  agent  in  the  names  of  himself  and  the 
defendant,  aud  made  payable  at  the  bank  where 
the  joint  account  was  opened  : — Held,  that  the 
agent  had  no  authority  to  accept  the  bill  in  the 
defendant's  name,  so  as  to  bind  her,  and  that, 
not  being  a  partner  in  the  firm  of  C.  Brothers, 
he  had  no  authority  to  accept  bills  drawn  on 
the  firm,  and  the  defendant  was  not  liable. 
Kirk  v.  Blurt  on  (9  M.  &  W.  284)  commented  on 
and  distinguished.  Odell  v.  Cormack,  19  Q.  B.  D. 
223— Hawkins,  J. 

Promissory  Note — Authority  of  Xanager  of 
Trading  Company  Abroad.]— The  business  of  a 
company  was  that  of  importers  and  dealers  in 


1513 


PRINCIPAL    AND    AGENT. 


1514 


tinned  ox-tongues  and  other  provisions.  Hunter 
was  appointed  manager  of  the  company's  business 
in  South  America,  "  to  take  the  entire  charge  of 
the  interests  of  the  company  there."  No  express 
authority  was  conferred  on  him  to  sign  or  accept 
bills  or  promissory  notes  on  behalf  of  the  com- 
pany. He  was  desirous  of  entering  into  a  con- 
tract with  one  Liberos  for  the  supply  of  ox- 
tongues to  the  company  in  South  America. 
Liberos  refused  to  enter  into  a  contract  unless  a 
guarantee  was  given  by  some  third  person,  and, 
at  the  request  of  Hunter,  one  Simpson  agreed 
to  give  the  required  guarantee,  which  he  did 
by  depositing  1,000/.  in  a  bank  to  the  order 
of  Liberos.  As  a  counter  security  to  Simpson, 
Hunter  gave  him  a  promissory  note  for  1,0002., 
signed  by  him  "  in  representation  of  "  the  com- 
pany. The  company  made  default  in  carrying 
out  the  provisions  of  the  contract  with  Liberos, 
and,  under  a  power  contained  in  it,  he  forfeited 
the  depomt,  which  was  paid  over  to  him  by  the 
hank.  No  goods  were  supplied  to  the  company 
under  the  contract.  The  company  never  re- 
cognised the  promissory  note,  and  it  was  dis- 
honoured at  maturity.  The  company  being  in 
liquidation,  Simpson  claimed  to  prove  in  the 
winding-up  upon  the  note : — Held,  that  it  not 
being  shown  that  the  giving  of  the  note  was 
necessary  for  the  carrying  on  of  the  business  of 
the  company,  or  that  it  was  in  the  ordinary 
course  of  the  business  of  such  a  company,  the 
note  was  not  binding  upon  the  company,  and 
the  claim  in  respect  of  it  could  not  be  admitted. 
Cunningham  &  Company ',  In  re,  Simpson's  Claim, 
36  Ch.  D.  532  ;  67  L.  J.,  Ch.  169  ;  58  L.  T.  16— 
North,  J. 

Stewards  of  Fete— Authority  of  "General 
Manager"  to  pledge  Credit.] — On  a  programme 
for  a  fete  the  names  of  the  two  defendants  ap- 
peared as  stewards,  and  the  name  of  P.  as 
**  general  manager."  P.  ordered  tents  and  flags 
from  the  plaintiff  for  use  at  the  fete.  On  the 
programme  was  a  statement  that  the  stewards 
reserved  the  right  of  altering  the  programme, 
that  five  should  form  a  quorum,  and  that  tents 
would  be  provided.  At  the  fete  the  defendants 
took  an  active  part.  The  plaintiff  sent  in  his 
bill  to  the  stewards.  The  stewards  stated  that 
every  one  providing  things  for  the  fete  would  be 
paid*: — Held,  that  there  was  evidence  on  which 
the  court  might  find  that  P.  was  authorised  to 
pledge  the  credit  of  the  two  defendants  for  the 
tents,  and  that  they  were  therefore  liable.  Pilot 
v.  Craze,  62  J.  P.  311— D. 

There  is  a  broad  distinction  between  acting 
stewards,  such  as  those  mentioned,  and  provi- 
sional committeemen,  who  only  lend  their  names. 
lb.— Per  Wills,  J. 

Previous  Judgment  against  Agent  set  aside.] 
— The  plaintiff  had  supplied  goods  on  K.'s  order 
to  a  theatre,  and  had  obtained  judgment  against 
K.  for  the  price.  Whilst  the  judgment  was  still 
standing  the  plaintiff  commenced  an  action 
against  the  lessee  of  the  theatre  for  the  price  of 
the  same  goods.  The  lessee  objected  that  the 
matter  was  res  judicata.  The  judgment  against 
K.  was  set  aside  before  the  hearing  of  an  appeal 
to  the  Divisional  Court  : — Held,  that  as  the 
judgment  had  been  set  aside,  the  action  was 
rightly  brought  against  the  lessee.  Partington 
v.  liawthome,  52  J.  P.  807— D. 


Counterclaim  against  Principal  in  Action  by 
Agent.  ] — In  an  action  of  trover  and  for  goods 
sold  and  delivered,  a  defendant  cannot  set  off  a 
claim  for  unliquidated  damages  which  he  has 
against  a  third  party  on  another  transaction, 
although  the  third  party  happens  to  be  the  plain- 
tiff's principal.  Tagart  v.  Marcus,  36  W.  K.  469 
— D. 

Authority  of  Agent  to  receive  Mortgage 
Money.] — G.  and  H.  were  mortgagees  for  1,000/. 
on  property  of  S.  Their  solicitors,  D.  and  P., 
who  had  the  deeds  in  their  custody,  applied  to  the 
defendant,  who  was  also  a  client  of  theirs,  saying 
that  they  believed  he  had  1,000/.  to  invest  on 
mortgage,  and  that  G.  and  H.  wanted  1,000/.  on 
a  transfer  of  S.'s  mortgage.  The  defendant  in- 
spected the  property,  and  being  satisfied,  he,  on 
the  19th  of  June,  1878,  sent  the  1,000/.  to  D  &  P., 
who  gave  him  a  receipt  for  it.  In  July  D.  &  P. 
fraudulently  induced  G.  and  H.  to  execute  a 
deed  of  transfer  to  the  defendant  with  a  receipt 
indorsed,  which  deed  they  stated  to  G.  and  H. 
to  be  a  deed  of  reconveyance  to  S.  on  his  paying 
off  the  mortgage.  D.  &  P.  shortly  afterwards 
handed  his  deed  with  the  title-deeds  to  the 
defendant,  and  went  on  paying  him  interest  as 
if  they  had  received  it  from  S.,  who  was  in  fact 
paying  his  interest  to  the  agents  of  G.  and  H. ; 
G.  and  H.  made  no  inquiry  as  to  the  mortgage, 
and  this  went  on  till  1883,  when  D.  &  P.  became 
bankrupts,  and  the  1,000/.  received  from  the 
defendant,  which  had  never  been  handed  over 
to  G.  and  H.  was  lost.  G.  and  H.  then  brought 
their  action  against  the  defendant  asserting  a 
right  against  the  property  in  the  nature  of  an 
unpaid  vendor's  lien  : — Held,  that  as  the  plain- 
tiffs by  the  deed  of  transfer  and  receipt  which 
they  handed  to  D.  &  P.  enabled  them  to  repre- 
sent to  the  defendant  that  the  1 ,000/.  which  he 
had  previously  handed  to  D.  &  P.  had  come  to  the 
hands  of  the  plaintiffs,  they  had  raised  a  counter 
equity  which  prevented  their  claiming  a  vendor's 
lien,  though  this  would  not  have  been  the  case 
if  (D.  &  P.  having  no  authority  to  receive  money 
for  the  plaintiffs)  the  defendant  had  paid  the 
1,000/.  to  D.  &  P.  at  the  time  when  the  deeds 
were  delivered  to  him,  since  he  would  then  have 
known  that  the  plaintiffs  had  not  received  the 
money.  Swinbanks,  Ex  parte  (11  Ch.  D.  525), 
distinguished.  Gordon  v.  James,  30  Ch.  D.  249  ; 
53  L.  T.  641  ;  34  W.  R.  217-C.  A. 

Quaere,  per  Cotton,  L.J.,  whether  D.  &  P.,  as- 
suming them  to  have  authority  to  receive  mort- 
gage money  on  behalf  of  the  plaintiffs,  could  be 
taken  ever  to  have,  in  fact,  received  this  1,000/. 
on  their  behalf.    lb. 

Warranty  on   the   Sale  of  a  Horse.] — The 

servant  of  the  owner  of  a  riding-school  who 
was  in  the  habit  of  buying  and  selling  horses 
was  intrusted  to  deliver  for  approval  and  to 
negotiate  for  the  sale  of  a  horse  to  the  plaintiff. 
At  the  trial  the  jury  found  (1)  that  the  servant 
warranted  the  horse  free  from  disease  ;  (2)  that 
it  was  suffering  from  mange,  which  the  servant 
well  knew  ;  and  (3)  that  the  master  was  aware 
there  was  something  the  matter  with  the  horse, 
but  that  he  did  not  know  the  nature  of  the 
disease  : — Held,  that  the  master  was  bound  by 
the  servant's  warranty.  Baldry  v.  Bates,  52 
L.  T.  620— Huddleston,  B. 

A  servant,  entrusted  by  his  master  with  the 
sale  of  a  horse  at  a  fair,  may  have  an  implied 


1515 


PRINCIPAL    AND    AGENT. 


1516 


authority  to  give  a  warranty  to  the  purchaser. 
Brady  v.  Todd,  (9  C.  B.,  N.  S.  592)  commented 
on  and  distinguished.  Brooks  v.  Hassell,  49  L.  T. 
568— D. 

Sale   of  Goods —  Scope   of  Employment.] — 

Where  an  agent  of  an  English  firm  instructed 
to  buy  goods  at  a  foreign  auction  within  a 
limited  price,  bought  the  goods  by  private  con- 
tract before  the  auction  at  less  than  the  limited 
price ;  it  was  found  by  the  jury  that  this  was 
within  the  scope  of  his  authority.  Stein  v. 
Cope,  1  C.  &  E.  63 — Denman,  J. 

A  sale  of  engravings  by  a  cashier  in  the  em- 
ployment of  a  picture  engraver  is  not  a  sale 
within  the  ostensible  authority  of  the  cashier. 
Graves  v.  Masters,  1  C.  &  E.  73 — Coleridge,  C.J. 


b.    Other  Acts  of  Agent. 

Representation  by  Agent  —  For  his  own 
Benefit.] — A  principal  is  not  liable  in  an  action 
of  deceit  for  the  unauthorised  and  fraudulent 
act  of  a  servant  or  agent  committed,  not  for  the 
general  or  special  benefit  of  the  principal,  but 
for  the  servant's  or  agent's  private  ends.  The 
secretary  of  a  company  answered  questions 
which  were  put  to  him  as  secretary  as  to  the 
validity  of  certain  debenture  stock  of  the 
company.  The  answers  were  untrue  and  were 
fraudulently  made  by  the  secretary  for  his  own 
benefit.  In  an  action  against  the  company  for 
loss  arising  from  the  representations,  the  jury 
found  that  the  secretary  was  held  out  by  the 
company  as  a  person  to  answer  such  inquiries 
on  tneir  behalf : — Held,  that  the  company  were 
not  liable.  British  Mutual  Banking  Company 
v.  Chamwood  Forest  Railway,  18  Q.  B.  D.  714  ; 
66  L.  J.,  Q.  B.  449  ;  57  L.  T.  833  ;  35  W.  R. 
690  ;  52  J.  P.  150— C.  A. 

Secretary  of  Company.  ]— The  defendants, 

a  tramway  company,  employed  contractors  to 
execute  certain  works.  By  the  contract  the 
defendants  had  a  right  to  retain  a  certain 
percentage  of  the  amounts  for  which  their 
engineer  from  time  to  time  certified  on  account 
of  the  price  of  the  works,  until  after  the 
completion  of  the  same.  The  contractors  ap- 
plied to  the  plaintiffs  for  an  advance  upon  the 
security  of  retention  moneys  under  the  contract. 
The  defendants'  secretary,  in  answer  to  inquiries 
made  by  the  plaintiffs,  erroneously  represented 
to  them  that  there  was  a  certain  amount  of 
retention  money  in  the  defendants'  hands  which 
would  be  payable  after  the  completion  of 
the  works,  whereas  in  fact  it  was  not  so.  The 
plaintiffs  thereupon  advanced  money  to  the 
contractors  on  the  security  of  an  assignment 
of  the  retention  money.  There  was  no  evidence 
to  show  that  the  secretary  had  authority  to 
make  the  representations  which  he  had  made  : — 
Held,  that  it  is  not  within  the  scope  of  a 
secretary's  authority  to  make  such  representa- 
tions, and,  therefore,  in  an  action  by  the 
plaintiffs  as  assignees  of  the  retention  money, 
the  defendants  were  not  estopped  from  denying 
that  such  money  was  due.  Barnett  v.  Soutli 
London  Tramways  Company,  18  Q.  B.  D.  815  : 
56  L.  J.,  Q.  B.  452  ;  67  L.  T.  436  ;  35  W.  R.  640 
— C.A. 

The  secretary  of  the  defendant  company 
falsely,  fraudulently,  and  without  the  know- 


ledge of  the  directors  of  the  company,  repre- 
sented to  the  plaintiff  that  if  the  plaintiff  took 
certain  shares  in  the  company  he  would  be 
appointed  solicitor  to  the  company,  and  after- 
wards represented  that  the  plaintiff  had  been 
appointed  solicitor.  The  plaintiff  was  induced 
by  the  secretary's  representations  to  apply  for 
snares  in  the  company.  He  accepted  and  paid 
for  the  shares,  and  afterwards  paid  calls  on 
them,  and  received  a  dividend  : — Held,  in  an 
action  by  the  plaintiff  against  the  company,  that 
the  secretary  had  no  such  implied  authority 
to  make  representations  on  behalf  of  the  com- 
pany as  to  render  the  company  liable  to  the 
plaintiff  for  the  fraudulent  representations 
of  the  secretary,  and  therefore  the  plaintiff  was 
not  entitled  to  have  his  name  struck  off  the 
register  of  sharehalders,  nor  to  recover  the  price 
which  he  had  paid  for  the  shares,  or  the  calls 
which  he  had  paid,  and  was  liable  to  the  defen- 
dants on  their  counterclaim  for  further  calls. 
Xewlands  v.  National  Employers'  Accident 
Association,  54  L.  J..  Q.  B.  428  ;  53  L.  T.  242  ; 
49  J.  P.  628— C.  A. 

Forgery  by  Secretary  of  Company — Certificate 
for  Shares.]—  G.  having,  through  the  plaintiff,  as 
his  broker,  purchased  200  shares  in  the  defendant 
company,  had  a  transfer  and  apparently  regularly 
issued  certificates  sent  to  him  in  ordinary  coarse. 
The  transfer  and  certificates  were  lodged  at  the 
company's  office  with  a  request  for  registration, 
and  what  purported  to  be  a  certificate  that  G. 
was  the  registered  proprietor  of  200  shares  was 
issued  to  him,  signed  by  one  director  and  the 
secretary,  and  bearing  the  seal  of  the  company. 
The  form  of  this  certificate  was  in  accordance 
with  the  company's  deed  and  resolutions,  but,  in 
fact,  the  name  of  the  director  was  forged  by  the 
secretary.  Subsequently  G.  deposited  the  certi- 
ficate, as  security  for  achances,  with  the  plain- 
tiff, who  gave  the  company  notice  of  such  deposit, 
neither  G.  nor  the  plaintiff  having  any  knowledge 
or  ground  for  suspicion  that  the  certificate  was 
not  genuine.  On  a  case  stated,  raising  the  ques- 
tion whether  the  plaintiff  had  a  good  title  to  the 
shares  as  against  the  company  : — Held,  that  he 
had  ;  that  the  company  were  liable  for  the  fraud 
of  their  agent  perpetrated  in  the  ordinary  course 
of  his  employment,  as  they  had  here  placed  the 
secretary  in  a  position  to  warrant  the  genuine- 
ness of  the  signature  and  the  seal.  Shaw  v.  Port 
Phillip  Gold  Mining  Company,  13  Q.  B.  D.  103 ; 
53  L  J.,  Q.  B.  369  ;  50  L.  T.  685 ;  32  W.  B. 
771— D. 

Agent's  Negligence— Scope  of  Employment] 
— The  R.,  which  was  anchored  in  F.  outer 
harbour,  having  to  be  beached  in  the  inner  har- 
bour, S.,  the  harbour-master  directed  the  master 
of  the  R.  where  to  beach  her.  Before  the  B. 
left  the  outer  harbour,  S.  came  on  board, 
although  a  Trinity-house  pilot  was  on  board, 
and  when  she  had  arrived  near  the  place  where 
she  had  to  be  beached,  gave  directions  as  to  the 
lowering  of  her  anchor.  The  R.  overran  her 
anchor  and  grounded  on  it,  sustaining  damage, 
In  an  action  against  the  harbour  commissioners 
and  S.,  the  court  found  as  a  fact  that  there  was 
negligence  on  the  part  of  S.,  and  that  the  place 
where  the  R.  grounded  was  outside  the  jurisdic- 
tion of  the  harbour  commissioners  .-—Held,  that 
the  duties  of  the  harbour-master  comprised 
directions  as  to  the  mooring  and  beaching  of 


r 


1517 


PKINCIPAL    AND    AGENT. 


1618 


vessels ;  that  by  giving  directions  when  he  went 
on  board,  S.  had  resumed  the  functions  as 
harbour-master,  and  that  he  and  the  commis- 
sioners were  therefore  liable  for  the  damage 
done  to  the  R.  The  Rhosina,  10  P.  D.  131  ;  54 
L.  J.,  P.  72  ;  53  L.  T.  30 ;  33  W.  R.  794 ;  5  Asp. 
M.  C.  460— C.  A. 


3.  Effect  of  Factors  Acts. 

Power  of  Agent  to  Mortgage.]— The  Factors 
Acts  do  not  empower  an  agent  acting  under  a 
power  of  attorney  in  a  non-mercantile  trans- 
action to  mortgage  the  property  of  the  principal. 
Lewis  v.  Ramsdale,  55  L.  T.  179 ;  35  W.  B.  8— 
Stirling,  J. 

Advances  by  Brokers  to  Agents  for  Sale.]— 

The  appellants,  merchants  at  Singapore,  em- 
ployed M.  in  London  as  agent  to  sell,  without 
authority  to  pledge,  cargoes  which  they  from 
time  to  time  consigned  to  him.     M.  employed 
the  respondents,  London  brokers,  to  sell  the 
appellants1  consignments,  and  also  in  speculative 
purchases  on  his  own  account.    The  respondents 
purchased  shellac  for  M.  without  disclosing  that 
they  were  buying  as  agents,  and  therefore  were 
personally  liable  to  the  vendors  on  the  contracts. 
Subsequently  they  made    advances    to    M.   to 
enable  him  to  pay  deposits  on  the  shellac,  and 
took  as  security  bills  of  lading  of  some  of  the 
appellants1  cargoes.    They  had  no  notice  that 
M.   was   acting   improperly   in   pledging   the 
cargoes.    On  obtaining  the  advances  M.  gave 
the  respondents  cheques  for  the  amount  of  the 
deposits,  which  were  then  paid  by  the  respon- 
dents : — Held,  that  the  obligation  under  wnich 
M.  lay  to  the  respondents  to  pay  the  deposits 
and  thus  prevent  their  being  called  upon  to  pay 
them,  did  not  constitute  an  antecedent  debt 
within  the  meaning  of  the  Factors  Act,  5  &  6 
Vict  c.  39,  s.  3,  and  that  the  pledges  were  made 
in  respect  of  bona  fide  advances,  and  not  of 
antecedent  debts,  and  were  valid  against  the 
appellants.    Kaltenbach  v.  Lewis,  10  App.  Cas. 
617  ;  55  L.  J.,  Ch.  58  ;  63  L.  T.  787 ;  34  W.  R. 
477— H.  L.  (E.) 

M.  also  pledged  with  the  respondents  pepper 
consigned  to  him  for  sale  by  the  appellants,  to 
secure  an  advance  protected  by  the  Factors 
Acts.  The  goods  had  been  sold  for  M.  by  the 
respondents,  but  not  delivered  to  the  purchasers, 
nor  paid  for,  when  M.  died  insolvent  and  heavily 
indebted  to  the  respondents  on  a  general  account. 
After  the  sale,  but  before  receiving  the  proceeds, 
the  respondents  had  notice  that  the  appellants 
claimed  the  pepper  and  the  proceeds : — Held, 
that  after  repayment  of  the  respondents' advance 
the  surplus  proceeds  of  sale  belonged  to  the 
appellants ;  that  the  appellants  could  sue  the 
respondents  for  such  surplus,  whether  on  the 
ground  of  privity  of  contract,  or  on  the  ground 
of  property,  or  under  the  Factors  Act,  5  &  6  Vict. 
c  39,  s.  7.  New  Zealand  and  Australian  Land 
(b»va*y  v.  Watson  (7  Q.  B.  D.  374),  distin- 
guished and  explained.    lb. 


What  Transactions  within.]— See  Mildred  v. 
Maspons,  ante,  coL  1511. 


1L    LIABILITIES    OF  AGENT  TO   THIRD 

PARTIES. 

To  Trustee  in  Bankruptcy  of  Principal.]— 
See  Bankruptcy,  XI.  7. 

Warranty  of  Authority— Personal  Liability.] 
— Where  a  person  by  asserting  that  he  has  the 
authority  of  the  principal,  induces  another 
person  to  enter  into  any  transaction  which  he 
would  not  have  entered  into  but  for  that  asser- 
tion, and  the  assertion  turns  out  to  be  untrue,  to 
the  injury  of  the  person  to  whom  it  is  made,  it 
must  be  taken  that  the  person  making  it  under- 
took that  it  was  true,  and  he  is  liable  personally 
for  the  damage  that  has  occurred,  ttrbank  v. 
Humphreys,  18  Q.  B.  D.  60  ;  56  L.  J.,  Q.  B.  57  ; 
56  L.  T.  36;  35  W.  R.  92— Per  Lord  fisher, 
M.  R. 


Measure  of  Damages.] — L.  instructed 


his  brokers  to  apply  for  fifty  shares  at  12.  each 
in  a  company  which  he  named.  They  by  mis- 
take applied  for  and  obtained  an  allotment  to 
L.  in  another  company.  L.  repudiated  the 
shares,  but  his  name  was  placed  on  the  register. 
The  company  had  at  that  time  a  very  large 
number  of  shares  unallotted,  and  in  the  opinion 
of  the  court  the  shares  were  unsaleable  in  the 
market.  The  company  was  soon  afterwards 
wound  up,  and  the  name  of  L.  was  removed  on 
his  application  from  the  list  of  contributories. 
The  official  liquidator  then  claimed  501.  from 
the  brokers  by  way  of  damages  for  their  mis- 
representation of  authority : — Held,  that  the 
general  rule  as  to  measure  of  damages  for  breach 
of  warranty  of  authority  was  applicable ;  that 
the  liquidator  was  entitled  to  recover  from  the 
brokers  the  amount  which  the  company  had  lost 
by  losing  the  contract  with  L. ;  and  that  as  L.  was 
solvent  and  the  shares  unsaleable  in  the  market, 
that  loss  was  represented  by  the  whole  Bum  of 
502.  payable  for  the  shares.  National  Coffee 
Palace  Company,  In  re,  Panmure,  Ex  parte,  24 
Ch.  D.  367  ;  53  L.  J.,  Ch.  67  ;  50  L.  T.  38  ;  32 
W.  R.  236— C.  A. 

The  plaintiff  brought  an  action  in  England 
against  a  marine  insurance  company  carrying 
on  business  in  the  United  States  and  obtained 
judgment  in  default  of  appearance  for  1,0002. 
Negotiations  for  a  settlement  then  took  place 
between  the  plaintiff  and  the  defendants,  the 
agents  of  the  company  in  England,  and  the  de- 
fendants by  mistake  represented  to  the  plaintiff 
in  good  faith  that  they  were  authorised  by  the 
company  to  offer  3002.  in  settlement  of  the 
plaintiff's  claim.  The  plaintiff,  relying  upon 
the  accuracy  of  the  representation,  entered  into 
an  agreement  with  the  defendants,  on  behalf 
of  the  company,  for  the  settlement  of  his  claim 
for  3002.,  but  it  afterwards  appeared  that  the 
defendants  were  not  authorised  to  make  the 
agreement,  and  he  was  unable  to  enforce  the 
performance  of  it.  In  an  action  against  the 
defendants  to  recover  damages  for  breach  of 
warranty  of  authority,  the  defendants  paid  into 
court  a  sum  representing  the  expenses  incurred 
by  the  plaintiff  in  negotiating  the  compromise : 
— Held,  on  the  authority  of  National  Coffee 
Palace  Company,  In  re,  Panrmre,  Ex  parte 
(24  Ch.  D.  367),  that  the  measure  of  damages 
was  the  loss  by  the  plaintiff  of  the  gain  whioh 


1519 


PRINCIPAL   AND    AGENT. 


1520 


he  would  have  derived  from  the  contract  which 
the  defendants  warranted  should  be  made,  and 
that  inasmuch  as  the  judgment  obtained  by  him 
was  of  no  value  (for  the  company  had  no  assets 
in  England,  and  the  judgment  could  not  under 
the  circumstances  be  enforced  in  the  American 
Courts),  and  the  value  of  the  plaintiffs  remedy 
on  the  policy  could  not  be  estimated,  the  plain- 
tiff was  entitled  to  recover  from  the  defendants 
3002.  in  addition  to  the  sum  paid  into  court. 
Meek  v.  Wendt,  21  Q.  B.  D.  126  ;  59  L.  T.  558— 
Charles,  J. 

Money  in  hands  of  Agent — Announcement 
that  next  Dividend  will  be  paid  in  full— Revo- 
cation by  Principal.] — Agents  in  London  of  a 
foreign  Government,  having  money  in  their 
hands  for  the  payment  of  a  dividend  on  a  loan, 
on  the  22nd  May  advertised  that  the  coupon  due 
on  the  1st  June  would  be  paid  in  full ;  but  on 
the  1st  June,  being  advised  by  the  foreign 
Government,  they  advertised  that  the  payment 
would  be  made  less  5  per  cent.  On  action 
brought  by  a  bondholder  against  the  agents : — 
Held,  that  the  announcement  to  pay  in  the 
future,  a  debt  due  in  the  future,  was  not  a  con- 
tract, and  did  not  bind  the  agents.  Also,  that, 
if  the  decree  authorising  the  deduction  of  5  per 
cent,  was  valid  according  to  the  law  of  the 
foreign  Government,  the  revocation  of  the  adver- 
tisement of  payment  in  full  was  valid.  Hender- 
son  v.  Rothschild,  33  Ch.  D.  459  ;  55  L.  J.,  Ch. 
939 ;  56  L.  T.  165  ;  34  W.  R.  769— V.-C.  B. 
Affirmed  56  L.  J.,  Ch.  471  ;  56  L.  T.  98 ;  35 
W.  R.  485— C.  A. 

Bill  of  Exohange.]  —  The  defendants,  two 
directors  and  the  secretary  of  an  incorporated 
limited  company,  which  had  no  power  to  accept 
bills,  at  the  request  of  their  engineer,  and  in 
accordance  with  a  resolution  that  the  company 
should  accept  Mb  draft  on  account  of  profes- 
sional services,  gave  to  the  engineer  an  accept- 
ance in  the  following  terms : — "  Accepted  pay- 
able at  ...  .  for  and  on  behalf  of  the  tramway 
company— G.  K.,  8.  F.  P.  (directors),  B.  W. 
(secretary)."  When  giving  the  acceptance  the 
directors  told  the  engineer  that  they  did  so  on 
the  understanding  that  he  should  not  negotiate 
it,  and  only  as  a  recognition  of  the  company's 
debt  to  him,  as  the  company  had  no  power  to 
accept  bills  ;  and  the  engineer,  on  pressing  them 
for  tne  acceptance,  told  them  that  ne  could  raise 
money  on  it  from  his  father-in-law.  The  engi- 
neer indorsed  the  bill  to  the  plaintiffs  for  value, 
and  without  notice  to  them  of  the  understanding 
between  him  and  the  defendants.  The  bill  was 
dishonoured,  and  the  defendants  were  sued  by 
the  holders: — Held,  that  the  defendants  were 
personally  liable,  as  by  accepting  the  bill  and 
putting  it  within  the  power  of  the  drawer  to 
negotiate  it,  they  represented  that  they  had 
authority  to  accept,  and  such  representation 
being  false  in  fact  would  therefore  support  an 
action.  West  London  Commercial  Bank  v.  Kit- 
son,  13  Q.  B.  D.  360  ;  53  L.  J.,  Q.  B.  345  ;  50  L.  T. 
666  ;  32  W.  R.  757— C.  A.  Affirming  47  J.  P.  824 
— D. 

Where  Principal  Non-existent.] — There  is  no 
rule  of  law  bv  which  an  agent  professing  to  con- 
tract on  behalf  of  a  principal,  either  non-existent, 
or  under  a  legal  disability  to  contract,  is  to  be 


deemed  to  be  himself  the  contracting  party. 
Hollman  v.  Pullin,  1C.&E.  254— Williams,  J. 


Sale  of  Goods— Broker  making  Sold-nete  "  for 
and  on  account  of  Owner" — Custom.]— The  de- 
fendants, who  were  hop-brokers,  gave  to  the 
plaintiffs  the  following  sold-note :  "  Sold  by 
Ongley  &  Thornton  (the  defendants)  to  Messrs. 
Pike,  Sons,  &  Co.,  for  and  on  account  of  owner. 
100  bales  .  .  .  hops  .  .  .  (Signed)  for  Ongley  t 
Thornton,  S.  T."  In  an  action  for  non-delivery 
of  hops  according  to  sample,  the  plaintiffs  sought 
to  make  the  defendants  personally  liable  on  the 
above  contract,  and  tendered  evidence  to  show 
that  by  the  custom  of  the  hop  trade,  brokers  who 
do  not  disclose  the  names  of  their  principals  at 
the  time  of  making  the  contract  are  personally 
liable  upon  it  as  principals,  although  they  con- 
tracted as  brokers  for  a  principal.  No  request 
was  made  by  the  plaintiffs  to  the  defendants  to 
name  their  principal : — Held,  that  the  custom 
gave  a  remedy  against  the  brokers  as  well  as 
against  the  principals,  that  it  was  not  in  contra- 
diction of  the  written  contract,  and  that  evidence 
of  the  custom  was  properly  admitted  at  the  trial. 
Hutchinson  v.  Tatham  (8  L.  R.,  C.  P.  482),  con- 
sidered. Pike  v.  Ongley,  18  Q.  B.  D.  708 ;  « 
L.  J.,  Q.  B.  373  ;  35  W.  R.  534  -C.  A. 

A  written  contract,  made  by  brokers  on  behalf 
of  undisclosed  principals  for  the  sale  of  hides, 
provided  that  "  if  any  difference  or  dispute  shall 
arise  under  this  contract,  it  is  mutually  agreed 
between  the  sellers  and  buyers  that  the  same 
shall  be  settled  by  the  selling  brokers,  whose  de- 
cision in  writing  should  be  final  and  binding  on 
both  sellers  and  buyers."  In  an  action  against 
the  brokers  in  respect  of  inferior  hides  delivered 
under  the  contract,  the  buyers  made  a  claim  for 
the  breach  against  the  brokers  as  principals  by 
custom  of  the  trade  : — Held,  that  evidence  of  a 
custom  of  the  trade  that  a  broker  who  does  not 
disclose  his  principal  is  personally  responsible 
for  the  performance  of  tne  contract  and  liable 
for  the  breach,  was  rightly  rejected,  as  such 
custom  was  inconsistent  with  the  arbitration 
clause,  which  would,  if  the  custom  were  incor- 
porated, make  the  brokers  judges  in  their  own 
cause.  Barrow  v.  Dyster,  13  Q.  B.  D.  635 ;  51 
L.  T.  573  ;  33  W.  R.  199— D. 

By  a  contract  in  writing,  the  defendants 
"  sold  to  "  the  plaintiffs  a  cargo  of  cotton  seed 
cake  of  a  specified  quality.  The  contract  con- 
tained a  clause  that  "  should  any  of  the  above 
goods  turn  out  not  equal  to  quality  specified, 
they  are  to  be  taken  at  an  allowance,  which 
allowance,  together  with  any  dispute  arising  on 
this  contract,  is  to  be  settled  by  arbitration/* 
The  defendant  signed  the  contract  with  the 
addition  of  the  word  "  brokers,"  and  were  acting 
as  agents.  Some  time  after  the  contract  was 
signed,  the  defendants  named  their  principals. 
The  cargo  proved  to  be  of  inferior  quality,  and 
an  arbitration  (which  the  plaintiffs  did  not 
attend)  to  determine  the  liability  of  the  defen- 
dants was  held ;  the  arbitrators  decided  by 
their  award  that  the  defendants  were  not  liable, 
inasmuch  as  a  custom  existed  that  a  broker  upon 
naming  his  principals  ceases  to  be  liable  on  the 
contract.  At  the  trial  of  the  action,  the  jury 
found  that  the  alleged  custom  did  not  exist  :— 
Held,  that  the  defendants  were  personally  liable 
on  the  contract.  Hvtcheson  v.  Baton,  IS  Q.  B. 
D.  861 ;  51  L.  T.  846— C.  A. 


1521 


PRINCIPAL    AND    AGENT. 


1522 


In  Rice  Trade.]  —  In  the  rice  trade  a 

custom  exists  that  where  a  broker  does  not  dis- 
close in  the  contract  note  the  name  of  the  prin- 
cipal dealt  with,  although  he  may  mention  it 
orally,  he  is  liable  on  the  contract  as  a  principal. 
Baemeuter  v.  Fenton,  1  C.  &  E.  121  —  cor. 
Manisty,  J. 

Broker  on  Stock  Exchange.] — Quaere,  whether 
a  custom  exists  on  the  London  Stock  Exchange 
that  a  broker  not  disclosing  the  name  of  the 

{nincipal  dealt  with,  renders  himself  personally 
iable.  Wildy  v.  Stepkeruon,  1  C.  &  E.  3 — cor. 
Lopes,  J. 

Election  to  Charge.] — The  knowledge  of  the 
real  facts  required  as  the  foundation  of  an  elec- 
tion to  charge  the  agent  or  the  undisclosed  prin- 
cipal most  be  actual  knowledge.  Dunn  v.  Newton, 
1  C.  *  E.  278— Mathew,  J. 


III.     RIGHTS    AND  LIABILITIES    AS 
BETWEEN    PRINCIPAL   AND    AGENT. 

Commission  —  Bight  to  must  arise  from  Con- 
tract.]—  In  order  to  found  a  legal  claim  for 
commission  on  a  sale,  there  must  not  only  be  a 
casual,  but  also  a  contractual  relation  between 
the  introduction  of  the  purchaser  and  the  ulti- 
mate transaction  of  sale.  Toulmin  y.  Miliar,  58 
L.  T.  96— H.  L.  (E.). 

When  Earned  —  Introduction  of  Pur- 
r.] — On  January  7th,  1887,  an  estate  agent, 
in  whose  hands  the  debtor  had  placed  certain 
property  for  sale,  introduced  to  such  debtor  a 
person  with  a  view  to  purchase,  but  no  agree- 
ment could  then  be  come  to  as  to  terms,  and  the 
debtor  a  few  days  afterwards  presented  his  own 
petition  in  bankruptcy.  On  January  17th,  1887, 
further  negotiations  took  place  between  the  per- 
son so  introduced  and  the  trustee  in  the  bank- 
ruptcy in  respect  of  the  property,  and  on 
January  24th,  1887,  the  purchase  was  com- 
pleted, but  a  proof  subsequently  tendered  by 
the  estate  agent  for  his  commission  was  rejected 
by  such  trustee: — Held,  that  the  sale  was 
brought  about  in  consequence  of  the  introduc- 
tion, and  was  traceable  thereto.  Durrant,  E* 
parte,  Beale,  In  re,  5  M.  B.  B.  37— D. 

The  plaintiffs  were  employed  by  the  defen- 
dant to  sell  an  estate  for  him  upon  the  terms 
that  they  should  be  paid  a  commission  on  the 
amount  of  such  sale.  The  estate  was  divided 
into  lots,  some  of  which  were  purchased  by  one 
A.,  and  upon  the  completion  of  that  purchase 
the  plaintiffs  received  their  commission.  The 
defendant  withdrew  his  authority  to  sell  from 
the  plaintiffs,  and  A.  subsequently  purchased 
the  remainder  from  the  defendant  by  private 
contract : — Held,  that  the  jury  were  entitled  to 
and  that  the  ultimate  sale  was  not  due  to  any 
introduction  of  the  plaintiffs,  so  that  they  could 
not  recover  their  commission.  Lumley  v.  Nickel- 
sou,  34  W.  R.  716—  D. 

Shipbroker't  Commission  when  earned.] 

— A  ahipbroker,  introducing  a  seller  and  buyer 
of  vessels,  is  only  entitled  to  commission  on  the 
business  resulting  proximately  from  the  intro- 
duction. White  v.  Baxter,  1  C.  &  E.  199  — 
Williams,  J.    Reversed  in  C.  A. 


How  much  recoverable  when  Principal 

prevents  Performance.] — In  an  action  for  dam- 
ages by  a  commission  agent  for  wrongfully  pre- 
venting him  from  earning  his  commission,  the 
damages  recoverable,  where  nothing  remained  to 
be  done  by  the  commission  agent  to  entitle  him 
to  his  commission  if  the  transaction  had  gone 
through,  are  the  full  amount  of  the  commission 
which  he  would  have  earned.  Robert*  v.  Bar- 
nard, 1  C.  &  E.  336— Mathew,  J. 


Person  whether  Agent  of  Mortgagor — 


Insurance  Premiums.] — The  plaintiff  mortgaged 
her  life  interest  in  a  fund  to  the  defendants,  it  be- 
ing part  of  the  agreement  that  a  policy  should  be 
effected  on  her  life,  and  the  premiums  be  secured 
on  the  mortgaged  property.  In  an  action  for  re- 
demption the  chief  clerk  found  that  1732. 19*.  Id., 
"  premiums  paid  on  policies,"  was  due  from  the 
plaintiff  to  the  defendants.  L.,  a  solicitor  and 
agent  to  all  the  parties,  paid  the  premiums  to 
the  insurance  offices,  receiving  from  them  5  per 
cent,  commission.  On  summons  to  vary  the 
chief  clerk's  certificate  by  the  amount  of  the 
commission,  on  the  ground  that  the  "  premiums 
paid  on  policies  "  only  amounted  to  1652.  6*. : — 
Held,  that  after  the  premiums  had  been  paid 
to  the  insurance  offices,  the  mortgagor  had  no 
interest  in  them.  The  insurance  offices  received 
the  premiums,  and  paid  the  commission  out  of 
them  to  their  own  agent.  Leete  v.  Wallace,  58 
L.  T.  577— Kay,  J. 

Right  of  Indemnity— Repudiation  of  Bet  be- 
fore Payment.] — The  plaintiff,  a  turf  commission 
agent,  was  employed  by  the  defendant  to  make 
bets  for  him  in  the  plaintiff's  name.    After  the 

Elaintiff  had  so  made  some  debts,  but  before 
e  had  paid  those  which  were  lost,  the  defendant 

repudiated  the  bets.    On  the  settling  day,  the 

plaintiff,  who  was  a  member  of  TattersalTs,  paid 

the  bets,  as,  if  he  had  been  a  defaulter,  he  would 
.  have  been  subject  to  certain  disqualifications  in 

connexion  with  racing  matters,  and  he  then 
;  sued  the  defendant  for  the  amount  so  paid  : — 

Held  (Brett,  M.R.,  dissenting),  that  he  was 
1  entitled  to  recover  the  amount.     Read  v.  Ander- 

*m,  13  Q.  B.  D.  779  ;  53  L.  J.,  Q.  B.  532  ;  51  L. 

T.  55  ;  32  W.  R.  950  ;  49  J.  P.  4— C.  A. 

Agent  omitting  to  do  Something  made 

,  Necessary  by  Statute — Stook  Exchange  Rules.] 

— The  defendant  employed  the  plaintiffs,  who 

1  were  stockbrokers  on  the  Stock  Exchange,  to 
buy  shares  in  a  joint  stock  banking  company. 
He  had  on  many  previous  occasions  employed 
the  plaintiffs  to  buy  similar  shares,  and  on  none 
of  those  occasions  did  the  contract  or  advice  note 

i  forwarded  to  him  specify  the  distinguishing 
numbers  of  the  shares  purchased.  The  plaintiffs 
purchased  the  shares  from  a  jobber  on  the  Stock 
Exchange  in  the  usual  way,  and  forwarded  to 
the  defendant  a  contract  note  in  the  usual  form, 

|  stating  that  the  contract  was  made  subject  to 
the  rules  and  regulations  of  the  Stock  Exchange. 
The  contract  was  not  made  with  reference  to 
any  distinguishing  numbers  of  the  shares,  nor 
did  the  contract  note  specify  any  numbers.  It 
is  not  the  practice  on  the  Stock  Exchange  to 
specify  the  numbers  of  the  shares  in  dealing  in 
bank  shares.  The  defendant  before  the  settling- 
day  wrote  to  the  plaintiffs  repudiating  the  con- 
tract, on  the  ground  that  the  numbers  of  the 
shares  were  not  specified  pursuant  to  30  &  31 


1528 


PRINCIPAL    AND    AGENT. 


1594 


Vict  c.  29,  b.  1.  Notwithstanding  each  repudia- 
tion, the  plaintiffs  completed  the  contract  and 
paid  for  the  shares.  By  the  rales  of  the  Stock 
Exchange  the  committee  only  recognise  the 
members  of  the  Stock  Exchange  as  the  parties 
to  contracts,  and  if  a  member  does  not  carry  out 
a  contract  he  may  be  declared  a  defaulter  and 
expelled  from  the  Stock  Exchange,  and  uno 
application,  which  has  for  its  object  to  annul 
any  bargain  on  the  Stock  Exchange,  shall  be 
entertained  by  the  committee  unless  upon  an 
allegation  of  fraud  or  wilful  misrepresentation." 
The  plaintiffs  sued  the  defendant  to  recover  the 
price  of  the  shares  paid  by  them  : — Held,  that 
the  plaintiffs  were  entitled  to  recover.  Seymour 
v.  Bridge,  14  Q.  B.  D.  460 ;  54  L.  J.,  Q.  B.  347— 
Mathew,  J. 

The  defendant  instructed  the  plaintiffs,  stock- 
brokers of  Bristol,  to  purchase  for  him  shares  in 
a  joint  stock  banking  company  on  the  London 
Stock  Exchange.  The  plaintiffs  gave  directions 
accordingly  to  their  London  agents,  brokers  on 
the  London  Stock  Exchange,  who  purchased  the 
shares  from  jobbers  on  the  Stock  Exchange  in 
the  usual  way,  without  having  in  the  contract 
distinguishing  numbers  of  the  shares,  it  not  being 
the  practice  on  the  London  Stock  Exchange  to 
specify  the  numbers  or  otherwise  comply  with 
30  &  31  Vict.  c.  29  (Leeman's  Act),  s.  1.  By  the 
roles  of  such  Stock  Exchange  it  is  provided  that 
the  Stock  Exchange  shall  not  recognise  in  its 
dealings  any  other  persons  than  its  own  members, 
such  members,  if  they  do  not  icarry  out  con- 
tracts, being  liable  to  be  expelled  from  the  Stock 
Exchange,  and  that  no  application  to  annul  a 
contract  shall  be  entertained  by  the  committee 
of  the  Stock  Exchange  unless  upon  a  specific 
allegation  of  fraud,  or  wilful  misrepresentation. 
Before  the  settling-day  the  defendant  repudiated 
the  contract,  but  the  committee  of  the  Stock 
Exchange  refused  to  annul  the  contract,  and 
therefore  the  plaintiffs  completed  it,  and  paid 
the  price  of  the  shares.  The  defendant  was 
ignorant  of  the  usage  of  the  London  Stock  Ex- 
change with  regard  to  dealings  in  shares  of  bank- 
ing companies,  and  did  not  know  that  the  pur- 
chasing broker  was  by  such  usage  bound  to 
perform  a  contract  for  the  purchase  of  banking 
shares,  though  void  at  law  under  Leeman's  Act : 
— Held,  that  the  plaintiffs  were  not  entitled  to 
recover  from  the  defendant  the  money  paid  by 
them  as  the  price  of  the  shares,  since  the  usage 
of  the  Stock  Exchange  to  disregard  Leeman's 
Act,  and  to  recognise  as  valid  a  contract  which 
was  made  contrary  to  that  act,  was  unreasonable 
as  against  strangers  who  did  not  know.it,  and 
therefore  was  not  binding  on  the  defendant. 
Perry  v.  Barnett,  15  Q.  B.  D.  388 ;  54  L.  J.,  Q. 
B.  466  ;  53  L.  T.  585— C.  A. 

A.  having  instructed  his  brokers,  B.  &  Co.,  to 
purchase  shares  in  the  0.  Bank,  received  from 
tbem  a  bought- note  stating  the  purchase  of 
shares  from  C.  (a  jobber),  but,  according  to  the 
usual  practice  on  the  Stock  Exchange,  not  speci- 
fying the  registered  numbers  of  the  purchased 
shares.  Between  the  date  of  purchase  and  the 
settling-day  the  bank  stopped  payment  and  pro- 
ceedings were  taken  to  wind  it  up.  A.'s  solicitors 
thereupon  wrote  B.  &  Co.  repudiating  the  con- 
tract for  purchase  contained  in  the  bought-note, 
on  the  ground  that  the  contract  was  illegal  and 
void,  being  in  contravention  of  30  Vict.  c.  29, 
and  giving  notice  that  if  they  completed  it,  it 
would  be  at  their  own  risk.    On  the  same  day  A. 


wrote  a  private  letter  to  B.  calling  attention  to 
the  formal  letter,  "  and  I  wish  you  clearly  to 
understand  that  whatever  position  you  may  have 
to  assume  with  regard  to  them  (the  shares)  1 
consider  myself  fully  bound  to  support  yon." 
The  name  of  A.,  as  the  purchaser  of  the  shares, 
was  returned  to  C.  by  B.  &  Co.,  and  on  receiving 
a  transfer  and  the  share  certificates  the  money 
was  paid  by  them  to  the  transferor's  broken.  A. 
refused  to  execute  the  transfer,  and  returned  it 
to  B.  k.  Co.,  in  whose  possession  it  remained, 
without,  for  some  time,  any  intimation  to  the 
vendor  that  A.  repudiated  the  transaction:— 
Held,  that  as  the  liability  of  C.  (the  jobber)  in 
respect  of  the  shares  had  ceased  on  tie  accept- 
ance  of  the  transfer  by  B.  &  Co.,  it  followed  that 
A.,  though  he  had  not  executed  the  transfer,  bad 
in  the  circumstances,  and  not  by  definitely  repo- 
diating  the  authority  given  to  B.  &  Co.  as  his 
agents,  become  equitable  owner  of  the  shares, 
and  bound  to  indemnify  the  vendor  against  all 
loss  and  liability  in  respect  of  them.  Lttrins  v. 
Davis,  32  Ch.  D.  625  ;  65  L.  J.,  Ch.  725  ;  54  L 
T.  899  ;  34  W.  R.  701— Chitty,  J. 


Authority  to  Sell  Shares  on  Stock  Bx- 


change.] — A  person  who  employs  a  broker  to 
sell  shares  on  the  Stock  Exchange  authorises  such 
broker  to  make  a  contract  of  sale  in  accordance 
with  the  rulesand  regulations  therein  force, and 
undertakes  to  indemnify  the  broker  against  any 
liability  incurred  by  him  under  those  roles, 
unless  the  rules  relied  on  by  the  broker  are 
either  illegal  or  unreasonable  and  not  known  by 
the  principal.  Harker  v.  Edwards,  57  L.  J,  Q. 
B.  147— C.  A. 

Sale  of  Agent's  own  Property  to  Prindpal- 
Non-Diaclosure  of  Interest.] — A  director  of  a 
company  as  the  company's  agent  purchased  for 
the  company  a  property  in  which,  before  he  be- 
came director,  he  had  acquired  an  interest  The 
company  had  gone  into  liquidation,  and  a  share- 
holder, whose  shares  were  fully  paid  up,  took  oat 
a  summons  under  s.  165  of  the  Companies  Act, 
1862,  and  sought  to  make  the  director  liable  for 
misfeasance  or  breach  of  trust  on  the  ground 
that  the  director  had  allowed  the  company  to 
make  the  purchase  without  disclosing  his  own 
interest,  and  at  a  price  far  exceeding  the  value : 
— Held,  that  the  application  must  be  dismissed, 
the  evidence  adduced  by  the  applicant  failing  to 
show  either  that  the  director  had  not  disclosed 
his  interest  or  that  the  purchase  price  was  above 
the  value.  Cavendish'Beidinck  v.  Fen%,  12  App. 
Cas.  (552  ;  57  L.  J.,  Ch.  552  ;  57  L.  T.  773 ;  86  W. 
R.  641—  H.  L.  (E.) 

Production  of  Documents  by  Agent  to  Per- 
sons appointed  by  Principal.]  — A  firm  of 
merchants  residing  abroad  brought  an  action 
against  their  agent  in  this  country  claiming 
production  of  the  documents  relating  to  their 
business  to  a  person  appointed  by  them  for  that 
purpose.  The  defendant  put  in  a  defence  stating 
that  the  person  appointed  by  the  plaintiffs  was  a 
clerk  in  a  rival  and  unfriendly  house  of  business, 
for  which  reason  he  objected  to  produce  the 
documents  to  him,  but  that  he  was  willing  to 
produce  them  to  any  proper  person.  The  plain- 
tiffs moved,  under  Ord.  XXV.  r.  4,  to  strike  oat 
the  defence  : — Held,  that  although  a  principal 
had  a  general  right  to  the  production  of  documents 
in  the  hands  of  his  agent  to  any  person  appointed 


1525 


PEINCIPAL    AND    AGENT. 


1536 


by  him,  he  cannot  insist  on  their  being  produced 
to  an  improper  person  ;  and  therefore  the  defence 
disclosed  a  reasonable  answer  to  the  claim. 
Whether  an  action  for  the  sole  purpose  of  en- 
forcing the  production  of  documents  to  a  parti- 
cular person  will  lie,  quaere.    Badswell  v.  Jacob*, 

34  Ch.  D.  278;  56  L.  J.,  Ch.  233  ;  55  L.  T.  857  ; 

35  W.  R.  261— C.  A. 

Money  Received — Agent  betting  for  Principal 
—Wagering.]  —  The  plaintiff  employed  the 
defendant  for  a  commission  to  make  bets  for  him 
on  horses.  The  defendant  accordingly  made 
each  bets,  and  he  received  the  winnings  from  the 
persons  with  whom  he  had  so  betted.  In  an 
action  by  the  plaintiff  for  the  amount  which  the 
defendant  had  so  received : — Held,  that  8  k  9 
Vict.  c.  109,  s.  18,  which  makes  null  and  void  all 
contracts  by  way  of  wagering,  did  not  apply  to 
the  contract  between  the  plaintiff  and  defendant, 
and  that,  therefore,  notwithstanding  that  statute, 
the  plaintiff  was  entitled  to  recover  in  respect  of 
the  bets  which  had  been  so  paid  to  the  defendant. 
Beyer  v.  Adam*  (26  L.  J.,  Ch.  841),  overruled. 
Bridger  v.  Savage,  15  Q.  B.  D.  363  ;  54  L.  J.,  Q. 
B.  464  ;  53  L.  T.  129  ;  33  W.  R.  891 ;  49  J.  P.  725 
— C.  A. 


-Duty  to  aooonnt — Interest  from  Bate  of 


Refusal.] — A  person  who  has  received  money  as 
agent  is  bound  nbt  only  to  account  for  the  same, 
bat  also  to  pay  it  over  to  the  principal  when 
requested  so  to  do  :  and  in  an  action  for  money 
had  and  received,  is  chargeable  with  interest  on 
the  amount  so  received  from  the  date  of  the  re- 
fusal to  pay  it  over.  Pearjte  v.  Green  (1  Jac.  & 
W.  J  35),  followed.  liar  taut  v.  Blaine,  56  L.  J., 
Q.  B.  511— C.  A. 

Duty  to  Account  for  Bonuses  reoeived.] — 
The  managing  director  was  before  the  formation 
of  the  plaintiff  company  a  shareholder  in  two 
other  companies,  and  in  consequence  of  employ- 
ing them  to  supply  ice  to  the  plaintiff  com- 
pany's ships,  and  to  take  away  the  fish  from 
them,  he  received  from  those  companies  cer- 
tain bonuses  paid  out  of  surplus  profits  after 
payment  of  dividends  at  a  fixed  rate.  Under  an 
agreement  with  the  company  he  was  allowed  to 
engage  in  any  other  business  or  venture  not 
prejudicial  to  the  interests  of  the  company,  and 
the  articles  provided  that  the  directors  might 
enter  into  contracts,  and  do  business  with  the 
company  : — Held,  that  he  must  account  to  the 
plaintiff  company  for  the  bonuses,  though  the 
plaintiff  company  could  not  have  obtained  them 
from  the  other  companies.  Boston  Beep  Sea 
Fishing  Company  v.  Ansell,  39  Ch.  D.  339  ;  59 
L.  T.  345— C.  A. 

Letters  addressed  to  Agent  at  Principal's 
Office— Bights  as  to,  after  Dismissal.]— B.  was 
employed  to  manage  one  of  L.'s  branch  offices  for 
the  sale  of  machines,  and  resided  on  the  premises. 
He  was  dismissed  by  L.,  and  on  leaving  gave  the 
postmaster  directions  to  forward  to  his  private 
residence  all  letters  addressed  to  him  at  L.'s 
branch  office.  He  admitted  that  among  the 
letters  so  forwarded  to  him  were  two  which  re- 
lated to  L.'s  business,  and  that  he  did  not  hand 
them  to  L.,  but  returned  them  to  the  senders. 
After  this  dismissal  he  went  about  among  the 
customers,  making  oral  statements  reflecting  on 
the  solvency  of  L.,  and  advised  some  of  them  not 


to  pay  L.  for  machines  which  had  been  supplied 
through  himself.  L.  brought  an  action  to  restrain 
B.  from  giving  notice  to  the  post-office,  to  for- 
ward to  B.'s  residence  letters  addressed  to  him  at 
L.'s  office,  and  also  asking  that  he  might  be 
ordered  to  withdraw  the  notice  already  given  to 
the  post-office  : — Held,  that  the  defendant  had 
no  right  to  give  a  notice  to  the  post-office,  the 
effect  of  which  would  be  to  hand  over  to  him 
letters,  of  which  it  was  probable  that  the  greater 
part  related  to  L.'s  business,  and  a  mandatory 
injunction  was  granted  to  compel  the  defendant 
to  withdraw  his  notice,  the  plaintiff  undertaking 
to  open  the  letters  at  stated  times,  with  liberty 
for  the  defendant  to  be  present  at  the  opening. 
Herman  Loog  v.  Bean,  26  Ch.  D.  306  ;  53  L.  J., 
Ch.  1128  ;  51  L.  T.  442 ;  32  W.  R.  994 ;  48  J.  P. 
708— C.  A. 

Liability  of  Agent  for  sub- Agent.]  —  The 
secretary  of  a  benefit  building  society  employed 
H.  as  his  private  clerk  to  transact  the  business 
of  the  society.  H.  was  not  an  officer  of  the 
society.  The  directors  had  drawn  cheques  from 
time  to  time,  which  were  handed  over  to  H.  by 
the  direction  and  with  the  knowledge  of  the 
secretary,  for  the  purpose  of  being  paid  by  him 
to  the  withdrawing  members;  but  instead  of 
being  so  applied  they  were  misappropriated  by 
H. : — Held,  that  the  secretary  was  responsible 
for  the  acts  of  his  clerk  to  whom  he  intrusted 
the  moneys,  in  the  same  manner  and  to  the 
same  extent  as  if  the  directors  had  placed  the 
moneys  in  the  hands  of  the  secretary,  and  he 
himself  had  handed  them  over  to  his  clerk. 
James,  £x  parte,  Mutual  and  Permanent  Benefit 
Building  Society,  In  re,  48  J.  P.  54— Kay,  J. 

An  agent  employing  a  sub-agent,  though  with 
the  knowledge  of  the  principal,  is  nevertheless 
liable  to  the  principal  for  moneys  received  by 
the  sub-agent.  Skinner  v.  Weguelin,  1  C.  &  £. 
12— Day,  J. 

A  plaintiff,  appointed  by  the  court  paid 
manager  of  an  estate,  who  transmitted  moneys 
belonging  to  the  estate  to  his  solicitor  in  the 
action  for  payment  into  court,  was  held  liable 
for  the  solicitor's  misappropriation,  on  the 
ground  of  negligence,  by  reason  of  his  sending 
the  money  before  the  orders  for  payment  in  had 
been  actually  obtained,  and  subsequently  asking 
for  no  vouchers  or  other  direct  evidence  of  pay- 
ment. Mitchell,  In  re,  Mitchell  v.  Mitchell,  54 
L.  J.,  Ch.  342  ;  52  L.  T.  178— Chitty,  J. 

Right  of  Lien— Faoter.] — An  agent  who  is  en- 
trusted with  the  possession  of  goods  for  the  pur- 
pose of  sale,  does  not  lose  his  character  of  factor, 
or  the  right  of  lien  attached  to  it,  by  reason  of 
his  acting  under  special  instructions  from  his 
principal  to  sell  the  goods  at  a  particular  price, 
and  to  sell  in  the  principal's  name.  Stevens  v. 
Biller,  25  Ch.  D.  31  ;  53  L.  J.,  Ch.  249  ;  50  L.T. 
36  ;  82  W.  R.  419— C.  A. 


Action  by  Undisclosed  Principal.] — See 


Mildred  v.  Maspons,  ante,  col.  1511. 


1627 


PRINCIPAL    AND    SURETY. 


1528 


PRINCIPAL  AND  SURETY. 

1.  The  Contract,  1527. 

2.  Discharge  of  Surety,  1631. 

3.  Rights  of  Surety,  1534. 


1.  THE  CONTRACT. 

Sufficiency  of  Memorandum  —  Statute  of 
Frauds.]  —  Where  the  contract  between  a 
creditor,  debtor  and  surety  is  contained  in  a  bill 
of  exchange,  in  an  action  by  the  creditor  against 
the  surety  on  the  bill  no  other  evidence  save  the 
bill  is  required  to  satisfy  the  Statute  of  Frauds, 
if  the  obligation  appearing  on  the  face  of  the 
bill  is  the  precise  obligation  the  surety  has 
agreed  to  undertake.    Holmes  v.  Durkee,  1  C.  & 

B.  23— Williams,  J. 

Duration  of  Guarantee — Death  of  Joint  Gua- 
rantor— Estoppel  by  Conduct.] — A  joint  guaran- 
tee is  not  determined  by  the  death  of  one  of  the 
guarantors  if  the  survivors  give  no  notice  that 
they  will  not  be  answerable.  Three  directors  of 
a  company  gave  a  joint  guarantee  to  a  bank  to 
secure  the  balance  of  the  company's  account  to 
the  amount  of  2,000/.  The  company  was  after- 
wards wound  up  and  reconstructed,  but  the  bank 
was  only  told  that  the  company  had  changed  its 
name,  and  the  account  was  continued  as  before  : 
— Held,  in  an  action  by  the  bank  to  recover 
2,0002.  due  on  the  account,  that  the  guarantors 
were  estopped  by  their  conduct  from  denying 
that  the  guarantee  remained  in  force.  Ashby  v. 
Day,  54  L.  T.  408  ;  34  W.  R.  312— C.  A.  Affirm- 
ing 54  L.  J.,  Ch.  935— V.-C.  B. 

Construction  —  Parol   evidence.]  —  G., 

knowing  that  his  son  C,  who  was  a  stock-broker 
in  London,  required  advances  for  the  purpose  of 
his  business,  gave  to  a  bank  a  letter  of  guarantee, 
undertaking  to  guarantee  any  advances  made  to 

C.  to  the  extent  of  1,0002.  After  the  death  of 
G.,  the  bank  sought  to  prove  on  his  estate  in 
respect  of  four  items  : — 1 ,  a  promissory  note  of 
C.  to  the  bank  for  4402.,  dated  the  30th  August, 
1880,  at  six  months ;  2,  a  sum  of  32/.,  balance 
due  on  a  bill  of  exchange  drawn  by  D.,  and 
accepted  by  E.,  dated  the  6th  October,  1880,  at 
six  months ;  3,  a  promissory  note  for  490/.,  of  8. 
to  the  bank,  dated  the  18th  October,  1880,  at  six 
months,  and  4,  71.  6*.  6d.,  the  overdraft  of  C.'s 
current  account.  The  promissory  note  for  440/. 
had  been  renewed  more  than  once,  and  this  note, 
and  the  renewals,  and  the  bill  of  exchange  had 
been  placed  to  the  credit  of  C.'s  account  with 
the  bank  while  current,  and  transferred  to  the 
debit  side  of  his  account  when  due,  discount 
being  charged  in  cases  of  renewal  to  C.'s  account. 
C.  drew  upon  the  bank  to  the  full  amount  for 
which  he  was  thus  credited.  C.'s  name  was  not 
on  the  bill  of  exchange,  but  the  bank  cashed  it 
on  his  guarantee,  and  the  proceeds  were  placed 
to  C.'s  credit.  The  promissory  note  for  490/. 
represented  a  note  given  to  the  bank  by  B. 
some  years  previously  to  the  date  of  G.'s 
guarantee,  the  amount  of  which  had  been  then 
advanced  to  C.  No  entry  of  this  note  or  its 
renewals  appeared  in  C.'s  current  account, 
although  the  amount  of  the  discounts  on  it 
were  charged: — Held,  (1),  that  to  aid  in  the 


construction  of  the  guarantee,  parol  evidence 
was  admissible  of  the  circumstances  under  which 
it  was  given  ;  (2),  that  under  the  circumstances, 
the  guarantee  was  a  continuing  gurantee,  ex- 
tending to  advances  made  after  its  date;  (3), 
that  "advances"  was  not  confined  to  cash 
advances  or  overdrafts,  but  included  the  pro- 
ceeds of  bills  or  notes  discounted  by  the  bank, 
and  placed  to  C.'s  credit ;  (4),  that  the  right  of 
the  bank  to  sue  on  bills  and  notes  being  sus- 
pended during  their  currency  was  not  a  giving 
of  time  within  the  rule  which  discharges  a 
surety;  but  that,  whether  each  renewal  was 
equivalent  to  a  fresh  and  independent  advance 
or  not,  the  amount  advanced  by  the  bank  to  C. 
was  within  the  guarantee ;  (5),  that  the  bank 
could  not  sustain  against  G.'s  estate  a  claim 
upon  the  note  for  490/.  O-rahame  v.  Qrakame, 
19  L.  R.,  Ir.  249— V.-C. 

Guarantee  of  Current  Aoeount  —  Death  of 
Surety— Appropriation  of  Payments.]— S.  gua- 
ranteed the  account  of  T.  at  a  bank  by  two  gua- 
rantees, one  for  150/.,  the  other  for  400/.  By  the 
terms  of  the  guarantees  the  surety  guaranteed  to 
the  bank  "  the  repayment  of  all  moneys  which 
shall  at  anytime  be  due  from  " the  customer u to 
you  on  the  general  balance  of  his  account  with 
you  " ;  the  guarantee  was  moreover  to  be  u  a 
continuing  guarantee  to  the  extent  at  any  one 
time  of  "  the  sums  respectively  nam^,  and  was 
not  to  be  considered  as  wholly  or  partially  satis- 
fied by  the  payment  at  any  time  of  any  sums  due 
on  such  general  balance ;  and  any  indulgence 
granted  by  the  bank  was  not  to  prejudice  the 
guarantee.  S.  died,  leaving  T.  and  another  exe- 
cutors. The  bank  on  receiving  notice  of  his  death, 
without  any  communication  with  the  executors 
beyond  what  would  appear  in  T.'s  pass-book, 
closed  T.'s  account,  which  was  overdrawn,  and 
opened  a  new  account  with  him,  in  which  they 
did  not  debit  him  with  the  amount  of  the  over- 
draft, but  debited  him  with  interest  on  the 
same,  and  continued  the  account  until  he  went 
into  liquidation,  when  it  also  was  overdrawn  :— 
Held,  that  there  was  no  contract,  express  or  im- 
plied, which  obliged  the  debtor  and  creditor  to 
appropriate  to  the  old  overdraft  the  payments 
made  by  the  debtor  after  the  determination  of  the 
guarantee,  and  that  the  bank  was  entitled  to 
prove  against  the  estate  of  S.  for  the  amount  of 
the  old  overdraft,  less  the  amount  of  the  dividend 
which  they  had  received  on  it  in  the  liquidation. 
Skerry,  In  re,  London  and  County  Banking  Com- 
pany v.  Terry,  25  Ch.  D.  692  ;  53  L.  J.t  Ch.  404; 
50  L.  T.  227  ;  32  W.  R.  394— C.  A. 

Implied  Indemnity— Lawful  seiiure  of  floods 
for  Another's  Debt.] — Where  an  execution  has 
been  levied  on  goods  which  as  between  the 
execution  debtor  and  a  third  person,  are  the 
third  person's,  but  as  between  the  execution 
creditor  and  the  third  person  are  the  execution 
debtor's,  the  case  comes  within  the  principle 
that  a  debtor  is  liable  to  indemnify  a  person 
whose  goods  have  been  lawfully  seised  for  his 
debt,  and  the  third  person  can  recover  the  sum 
realised  by  the  goods  from  the  execution  debtor. 
Edmunds  v.  WaUingford,  14  Q.  B.  D.  811 ;  M 
L.  J.,  Q.  B.  306  ;  52  L.  T.  720  ;  33  W.  B.  647; 
49  J.  P.  549— C.  A.  Affirming  1  C.  &  E.  334— 
Huddleston,  B. 

The  sheriff  had  seized  goods  for  the  debt  of 
the  defendant,  and  the  claim  of  the  plaintiff  to 


1529 


PEINCIPAL    AND    SURETY. 


1580 


the  goods  was  barred  upon  interpleader,  but  the 
defendant  had  bound  nimself  by  admission  as 
between  the  parties  that  the  goods  were  the 
plaintiff's,  and  had  agreed  to  pay  a  sum  of 
money  in  consideration  of  the  seizure : — Held, 
that  the  plaintiff  was  entitled  to  recover  that 
sum  from  the  defendant,    lb. 


Mortgagee  postponing  Charge  at  Mort- 


gagor's Bequest.]— Where,  at  the  request  of  a 
mortgagor,  a  second  mortgagee  postpones  his 
charge  for  the  purpose  of  facilitating  a  further 
charge  for  the  benefit  of  the  mortgagor,  the 
court  will  imply  a  promise  on  the  part  of  the 
mortgagor  to  indemnify  the  second  mortgagee, 
and  allow  a  proof  against  the  bankrupt  mort- 
gagor's estate  for  the  amount  which  the  second 
mortgagee  would  have  received  out  of  the  pro- 
ceeds of  sale  of  the  estate  if  he  had  not  con- 
sented to  postpone  his  charge.  Ford,  Ex  parte, 
Chappell,  In  re,  16  Q.  B.  D.  305  ;  55  L.  JM  Q.  B. 
406—C.  A. 


lity— Breach  of  Trait.]— Where  there 
are  two  trustees  and  the  management  of  the 
trust  is  left  in  the  hands  of  one,  and  the  acting 
trustee  commits  a  breach  of  trust,  the  passive 
trustee  is  not  entitled  to  an  indemnity  from  the 
acting  trustee,  unless  there  are  some  special  cir- 
cumstances, as  where  the  acting  trustee  is  the 
solicitor  for  the  trust,  or  has  derived  a  personal 
benefit  from  the  breach  of  trust.  Lockhart  v. 
Redly  (25  L.  J.,  Ch.  697)  and  Thompson  t. 
Unci  (8  D.  M.  &  G.  560)  distinguished.  Bahin  v. 
Hughes,  31  Ch.  D.  390 ;  55  L.  J.,  Ch.  472  ;  54 
L.  T.  188 ;  34  W.  R.  311— C.  A.  See  further, 
Trust  akd  Trustee. 

Original  Lessee  not  Surety  for  Assignee  of 
Lease.] — The  liability  of  a  lessee  upon  a  cove- 
nant in  a  lease  after  assignment  is  not  that  of 
surety  for  the  assignee.  JBaynton  v.  Morgan,  22 
Q.  B.  D.  74  ;  58  L.  J.,  Q.  B.  139  ;  37  W.  R.  148  ; 
53  J.  P.  166— C.  A. 

Bight  of  Assignee  of  Lease  to  Indemnity  from 
Assignor.] — On  the  dissolution  of  a  partnership 
between  H.  and  R.,  H.  assigned  to  R.  all  his 
interest  in  two  houses  belonging  to  the  partner- 
ship held  under  subleases  from  C.  and  D.,  and 
R.  covenanted  to  pay  the  rents  and  observe  the 
covenants  and  keep  H.  indemnified  against  them. 
R.'s  executors  sold  the  houses  to  B.,  and  B.  to  a 
company  which  went  into  liquidation.  The 
landlords  C.  and  D.  thereupon  sued  H.  for  the 
rent,  and  he  paid  it  for  the  whole  of  the  year 

1882.  D.  also  made  a  large  demand  against  H. 
for  breaches  of  covenants  to  repair,  but  H. 
made    no  payment.    On    the   15th  of    March, 

1883,  D.  assigned  his  reversion  to  H.,  and  in 
May,  1883,  H.  acquired  C.'s  reversion.  In  June, 
1883,  H.  bought  the  leasehold  interest  in  both 
houses  from  the  liquidators  of  the  company, 
and  covenanted  thenceforth  to  pay  the  rent 
and  observe  the  covenants.  H.  sought  to  prove 
against  the  estate  of  R.  for  the  sums  paid  for 
rent,  for  the  rent  payable  at  Lady  Day,  1883, 
on  D.'s  house,  and  for  the  amount  of  the 
dilapidations  in  that  house : — Held,  that  the 
right  of  H.,  under  R.'s  covenant  of  indemnity, 
to  prove  for  the  rents  which  he  had  paid,  was 
not  taken  away  by  his  covenant  in  the  assign- 
ment by  the  liquidators,  which  could  not  be  ex- 
tended to  rents  already  due  and  paid.    Further, 


this  right  was  not  defeated  on  the  ground  that 
the  right  of  R.'s  representatives,  if  they  paid 
rent,  to  recover  it  from  the  owner  of  the  lease 
for  the  time  being,  was  interfered  with  by  the 
assignment  from  the  liquidators  to  H.,  for  that 
this  assignment  could  not  take  away  any  right 
of  action  which  R.'s  executors  might  have  against 
the  persons  entitled  to  the  houses  at  the  end  of 
1882,  and  that  an  assignor  who  pays  rent  has  no 
lien  on  the  term,  and  so  cannot  be  prejudiced  by 
its  subsequent  assignment  Neither  was  the 
right  defeated  on  the  ground  that  H.  on  paying 
the  rent  became  entitled  to  a  right  of  distress 
from  the  reversioners,  which  he  had  destroyed 
by  taking  an  assignment  of  the  leases,  and  had 
therefore  discharged  the  estate  of  R.  by  releas- 
ing a  remedy  to  the  benefit  of  which  R.  as  a 
surety  was  entitled,  for  that  a  right  of  distress 
is  not  a  security  or  remedy  to  the  benefit  of 
which  a  surety  paying  rent  is  entitled  under  the 
Mercantile  Law  Amendment  Act  (19  &  20  Vict, 
c.  97),  s.  5 : — Held,  therefore,  that  H.  was  en- 
titled to  prove  against  R.'s  estate  for  the  rent 
paid  in  1882  on  both  houses,  and  that  he  was 
entitled  to  prove  for  the  Lady  Day  rent  on  D.'s 
house  ;  but  that  H.  was  not  entitled  to  prove  for 
the  amount  of  dilapidations,  for  that  he  had 
sustained  no  damage  by  reason  of  them,  inas- 
much as  he  bought  the  leases  from  the  liqui- 
dators at  a  less  price  in  consequence  of  the 
breaches  of  the  covenant  to  repair ;  nor  for  the 
Lady  Day  rent  of  C.'s  house.  Russell,  In  re, 
Russell  v.  Shoolbred,  29  Ch.  D.  254 ;  53  L.  T. 
365— C.  A. 

Contribution — Directors — Breach  of  Trust — 
Liability  of  Executor.] — The  directors  of  a  com- 
pany advanced  moneys  of  the  company  upon  an 
unauthorised  security,  and  two  sums  of  600/..  and 
400/.  so  lent  were  lost.  The  600/.  formed  part 
of  a  loan  of  8001.,  and  the  400/.  formed  part  of  a 
loan  of  1,000/.  which  was  granted  by  the  board 
of  directors,  and  of  which  400/.  was  actually 
advanced  and  repaid,  and  a  second  400/.  was 
advanced  and  not  repaid.  In  an  action  by  the 
company  against  one  of  the  directors  who  had 
taken  part  in  granting  the  loans,  he  was  held 
liable  to  pay  the  two  sums  of  600/.  and  400/.  to 
the  company,  and,  having  paid  them,  sued  three 
of  his  co-directors  for  contribution.  One  of 
the  defendants  was  not  present  at  the  meeting 
at  which  the  loan  of  800/.  was  granted,  and  at 
which  a  cheque  for  the  800/.  was  drawn,  but  he 
was  present  at  a  subsequent  meeting  at  which 
the  minutes  of  the  former  meeting  were  read 
and  confirmed.  The  800/.  had  been  already  paid 
to  the  .borrower  : — Held,  that,  whether  the 
defendant  would  or  would  not  have  been  liable 
to  the  company,  there  was  no  equity  to  compel 
him  to  contribute  to  the  plaintiff  in  respect  of 
the  600/.  Ramskill  v.  Edwards,  31  Ch.  D.  100  ; 
55  L.  J.,  Ch.  81  ;  53  L.  T.  949  ;  34  W.  R.  96— 
Pearson,  J. 

The  same  defendant  was  present  at  the  meet- 
ing at  which  the  loan  of  1,000/.  was  granted, 
when  he  protested  strongly  against  it.  He  was 
present  at  a  subsequent  meeting  at  which  the 
minutes  of  the  first  meeting  were  read  and  con- 
firmed, and  he  then  signed  a  cheque  which  was 
drawn  for  the  first  400/. : — Held,  that  by  signing 
the  cheque  he  had  adopted  the  whole  loan  of 
1,000/.,  and  that  he  was  therefore  liable  to  con- 
tribute in  respect  of  the  second  400/.  which  was 
lost.    lb. 


1581 


PRINCIPAL    AND    SURETY. 


1532 


The  third  defendant  died  after  the  commence- 
ment of  the  action,  and  his  administrator  was 
then  made  a  defendant : — Held,  that  the  liability 
to  contribute  survived  against  the  defendant's 
estate,    lb. 


Joint  Adventure— Default  in  Payment 


of  Lois  by  one  party.] — By  agreement  between 
the  plaintiffs,  the  defendants,  and  Messrs.  L.,  B. 
k  Co.,  a  cargo  of  Californian  wheat  was  to  be 
shipped  for  their  joint  account  by  the  correspon- 
dents of  L.,  B.  k  Co.  at  San  Francisco,  consigned 
to  the  plaintiffs  at  Liverpool  for  sale  upon 
certain  special  terms ;  the  shippers  to  reimburse 
themselves  for  costs  and  insurance  of  the  cargo 
by  drafts  on  the  plaintiffs  at  sixty  days'  sight  to 
the  extent  of  45*.  per  quarter,  less  freight,  and 
for  the  balance  of  invoice  amount  by  separate 
drafts  at  sixty  days1  sight  upon  each  of  the 
above  parties  for  one-third  of  the  excess.  The 
cargo  was  shipped,  and  a  bill  was  drawn  by  the 
San  Francisco  house  for  20,353Z.  18*.  Id.  on 
account  of  the  invoice  price  of  the  wheat,  less 
freight,  upon  the  plaintiffs,  and  was  duly  ac- 
cepted ana  paid  by  them,  together  with  freight, 
insurance,  and  other  charges  in  respect  of  the 
cargo ;  and  the  wheat  on  arrival  was  sold  by 
the  plaintiffs  at  a  loss.  In  December,  1883,  L., 
B.  k  Co.  became  insolvent  and  compounded 
with  their  creditors  for  30  per  cent,  of  their 
liabilities,  which  composition  the  plaintiffs  re- 
ceived, leaving  an  unpaid  balance  of  1 ,7602. 10*.  9d. 
due  from  that  firm  for  their  share  of  the  loss  on 
the  adventure  : — Held  (the  judge  to  draw  in- 
ferences of  fact"),  that  the  purchase  and  ship- 
ment of  the  wheat  was  a  joint  partnership 
adventure,  each  of  the  three  firms  to  participate 
equally  in  the  profit  or  loss ;  and  that  the 
defendants,  according  to  the  rule  of  equity, 
which  since  the  Judicature  Act,  1873,  is  to  pre- 
vail, were  liable  to  contribute  equally  with  the 
plaintiffs  to  make  good  the  default  of  L.,  B.  k 
Co.  Lowe  v.  Dixon,  16  Q.  B.  D.  455  ;  34  W.  R. 
441 — Lopes,  J. 


2.  Discharge  op  Stjbety. 

Discharge  of  Principal— Eeservation  of  Eights 
against  Surety.] — Where  a  creditor  discharges 
the  principal  debtor,  but  reserves  his  rights 
against  the  surety,  even  by  parol,  the  surety  is 
not  discharged.  Norman  v.  Bolt,  1  C.  k  E.  77 
—Field,  J. 

The  acceptor  of  a  bill  of  exchange  for  100Z. 
being  sued  thereon  by  the  holders,  paid  into 
court  the  sum  of  30Z.  in  satisfaction  of  the  whole 
cause  of  action.  The  holders  gave  notice  (in 
Form  4,  App.  B.  of  the  R.  S.  C.  1883)  that  they 
accepted  that  sum,  having  previously  written 
to  the  acceptor  to  say  that  the  indorsers  had 
arranged  to  pay  the  balance  of  701.,  and  would 
sue  the  acceptor  therefor : — Held  that  the  ac- 
ceptor was  not  thereby  absolutely  released,  and 
that  the  indorsers,  having  paid  the  balance, 
could  recover  it  from  the  acceptor.  Jones  v. 
Wltitaker,  57  L.  T.  216— C.  A. 

Giving  Time— Taking  Bill  for  portion  of  Debt]. 

— The  defendants  were  sureties  to  the  plaintiffs 
for  H.  D.,  on  a  continuing  guarantee  for  the  value 
of  goods  to  be  supplied  by  the  plaintiffs  to  H.  D.. 
not  exceeding  800J.  in  all.  The  plaintiffs,  with- 
out the  defendants'  knowledge  or  consent,  having 


taken  from  H.  D.  a  bill  at  three  months  still 
current  for  45Z.,  on  account  of  portion  of  the 
sum  due  for  goods  supplied  to  H.  D.,  the  actual 
amount  due  having  been  previously  ascertained: 
— Held,  that  the  defendants  were  not  released 
from  liability  to  pay  the  balance  of  the  sum  doe 
for  the  goods  supplied  to  H.  D.,  under  the 
guarantee,  but  were  only  discharged  to  the 
extent  of  the  452.  for  which  the  bill  was  taken. 
Dowden  v.  Levi*,  14  L.  R.,  Ir.  307— Ex.  D.  Set 
also  Orahame  v.  Qrahamc,  ante,  coL  1528. 


Extension  of  Time  for  lodging  Instalment 


by  order  made  upon  Consent — Judicial  Act]— 8., 
as  principal,  and '  the  defendant,  as  his  surety, 
were    jointly    and    severally  indebted  to  the 
plaintiffs  in  the  sum  of  1,0962.  upon  three  pro- 
missory notes.    8.  carried  an  arrangement  in  the 
Court  of  Bankruptcy  with  his  creditors  for  2te. 
in  the  pound,  payable  by  four  equal  instalments 
in    four,   eight,    twelve,    and    sixteen  months 
respectively,  the  last  instalment  to  be  secured  by 
S.  lodging  the  amount  thereof  with  the  official 
assignee  on  or  before  a  certain  date.    S.  made 
default  to  the  extent  of  71 51.  in  lodging  the 
amount  of  the  fourth  instalment,  and  the  plain- 
tiffs, to  whom  4,850Z.  was  then  due,  including  the 
amount  of  the  said  promissory  notes,  consented 
that  the  moneys  in  court  should  be  appropriated 
to  paying  in  full  the  last  instalment  to  the  other 
creditors  before  paying  them,  and  that  8.  should 
have  further  time  to  lodge  the  7152.    An  order 
was  made  by  the  Court  of  Bankruptcy,  grounded 
on  the  plaintiffs1  consent,  so  appropriating  the 
moneys  in  court,  and  extending  the  time  for 
lodging  the  715Z.    S.  never  lodged  or  paid  this 
sum.    In  an  action  by  the  plaintiffs  against  the 
defendant  on  the  promissory  notes,  the  defendant 
contended  that  by  this  consent  of  the  plaintiffs 
he  was  discharged.    The  plaintiffs  having  waived 
their  claim  to  one-fourth  of  the  amount  secured 
by  the  promissory  notes,  judgment  was  entered 
for  them  for  the  remaining   three-fourths:— 
Held,  that  the  extension  of  time  for  the  lodg- 
ment by  S.  of  the  last  instalment,  although 
made  upon  the  plaintiffs1  consent,  was  a  judicial 
act  and  did  not  discharge  the  defendant  from 
liability  for  at  least  the  three-fourths,  for  which 
judgment  waB  entered.    Semble,  even  as  to  the 
one-fourth  waived  by  the  plaintiffs,  the  proceed- 
ings in  question  would  not  have  operated  as  a 
discharge  to  the  defendant.     Provincial  B*d 
v.  Cussen,  18  L.  R.,  Ir.  a82—C.  A. 

Bond — Acquiescence  in  or  Connivance  ftt 
Irregular  Payments.] — Where  G.  was  the  col- 
lector of  three  separate  rates,  which  were  to  be 
paid  over  as  received  once  a  week  to  the  cor- 
poration employing  him,  it  is  no  answer  to  the 
surety  of  a  bond  given  to  secure  the  dne  pay- 
ment thereof,  that  payments  were,  with  the 
obligee's  acquiescence,  made  at  irregular  inter- 
vals, and  that  G.  mixed  the  proceeds  of  the 
various  rates  together.  Durham  (Ifeyw)  T« 
Fowler,  52  J.  P.  631— Charles,  J.  Affirmed  22 
Q.  B.  D.  394  ;  58  L.  J.,  Q.  B.  246;  60  L.  T.  466; 
53  J.  P.  374— D. 

G.  was  appointed  collector  of  certain  rate* 
under  the  Public  Health  Act,  1875  (38  k  39  Vict 
c.  55),  and  the  Municipal  Corporations  Act,  18SI 
(45  &  46  Vict  c.  50),  by  the  plaintiff  corpora- 
tion, to  secure  the  due  and  faithful  payment  of 
which  the  defendants  entered  into  a  bond  on  G.  s 
behalf  with  the  plaintiffs.    G.  subsequently  ap* 


1683 


PRINCIPAL   AND    SURETY. 


1584 


propriated  certain  moneys  so  collected  by  him 
to  his  own  use.  It  appeared  that,  with  the  ac- 
quiescence of  the  corporation,  G.  did  not  make 
regular  payment  to  the  corporation  of  the  moneys 
so  collected,  and  did  not  keep  the  proceeds  of  the 
rates  of  which  he  had  charge  separate,  in  accord- 
ance with  the  conditions  of  the  several  bonds  and 
the  provisions  of  the  statutes  relating  thereto. 
In  an  action  by  the  corporation  against  the 
sureties  : — Held,  that  such  acquiescence  was  not 
sufficient  to  discharge  the  sureties  of  their  bonds. 
Semble,  the  sureties  would  have  been  liable  even 
if  the  rate  had  been  invalid.    lb. 

Omission  to  fill  up  Xante  in  Bill— Notice  of 
Yen-payment] — The  debtor  gave  his  creditor  a 
bill  of  exchange  accepted  by  himself,  but  with 
the  drawer's  name  left  blank.  The  plaintiff  at 
the  same  time,  as  a  surety,  deposited  with  the 
creditor  certificates  of  stock  in  a  joint  stock  com- 
pany as  collateral  security  for  the  debt.  The 
debtor  died  without  the  creditor  having  filled  in 
the  name  of  the  drawer,  and  his  estate  was 
insolvent  The  bill  was  never  presented  for 
payment,  nor  was  notice  given  to  the  plaintiff 
of  its  non-payment : — Held,  that  the  creditor 
had  not  discharged  the  plaintiff  from  his  surety- 
ship by  his  omission  to  nil  up  the  drawer's  name, 
ana  to  give  notice  of  the  non-payment  of  the 
bill  to  the  plaintiff.  Carter  v.  White,  25  Ch.  D. 
666  ;  54  L.  J.,  Ch.  138  ;  50  L.  T.  670  ;  32  W.  R. 
692— C.  A. 

Substitution  of  Security  for  Personal  Ida. 
Mlity.] — A  surety  guaranteed  payment  of  -the 
premiums  upon  a  life  policy,  which  had  been 
assigned  by  the  principal  debtor  to  his  creditor 
to  secure  payment  of  part  of  the  debt.  Sub- 
sequently, the  creditor,  without  the  knowledge 
of  the  surety,  agreed  with  the  debtor  to  take 
the  security,  with  the  liability  of  the  debtor  and 
surety  to  pay  the  premiums  thereon,  in  substitu- 
tion for  the  personal  liability  of  the  debtor,  in 
respect  of  that  portion  of  the  debt,  and  released 
the  debtor  from  personal  liability  in  respect 
thereof : — Held,  that  this  arrangement  discharged 
the  surety.  Lawes  v.  Maugluin,  1  C.  &  E.  340 — 
Denman,  J. 

Mortgage  granted  by  Principal— Bale.]—  The 
appellants  having  become  sureties  on  the  faith  of 
a  mortgage  granted  by  the  principal  debtor  to  his 
creditor,  claimed  to  be  released  wholly  or  pro 
tanto  from  liability,  on  the  ground  that  the 
creditor  had  without  notice  to  them  sold  parts  of 
the  mortgaged  property  in  a  manner  unwarranted 
by  the  terms  of  the  mortgage  deed,  and  that  in- 
asmuch as  the  purchaser  had  failed  to  pay  the 
price,  they  had  been  deprived  of  the  benefit  of  a 
security  upon  which  they  were  entitled  to  rely 
for  protection  : — Held,  that  on  the  evidence  the 
sale  was  effected  by  the  mortgagor,  although  with 
the  previous  consent  of  the  mortgagee,  in  the  due 
course  of  his  management  and  in  a  manner  con- 
templated by  the  mortgage  deed,  and  that  the 
liability  of  the  sureties  was  not  affected  thereby. 
Taylor  r.  Bank  of  New  South  Wale*,  11  A  pp. 
Gas.  596;  57  L.  J.,  P.  C.  47  ;  55  L.  T.  444— 
P.C. 

Variation  of  Liability.]— The  defendants, 
Evans,  Digby,  and  Simson,  executed  a  joint  and 
several  bond  for  150/.,  in  order  to  comply  with 
an  order  of  a  judge  at  chambers,  under  Ord.  XIV., 


directing  the  defendant  Evans,  in  an  action  of 
Tatum  v.  Beam,  to  find  security  as  a  condition 
for  leave  to  defend,  the  condition  of  the  bond 
being  that  it  should  be  void  if  Evans  should  pay 
to  the  plaintiffs  the  sum  of  751.,  or  such  sum 
(not  exceeding  that  amount)  as  the  court  should 
think  fit  to  award.  When  the  case  came  on 
for  trial,  Evans  consented  to  judgment  being 
directed  for  750/.,  to  include  costs,  payable,  as 
to  the  first  4002.,  by  instalments  of  25/.  per 
month  ;  the  remainder  to  be  paid  by  instal- 
ments of  50/.  per  month,  the  first  instalment  to 
be  payable  on  the  1st  March,  1885,  the  plain- 
tiff to  be  at  liberty  to  issue  execution  for  any 
balance  of  the  750/.  upon  default  in  payment  of 
any  instalments,  the  defendant  to  re-convey  all 
his  interest  in  the  premises  to  the  plaintiff  forth- 
with. It  was  also  provided  that  the  first  pay- 
ment by  the  defendant  was  to  be  taken  in  dis- 
charge of  the  sureties  pro  tanto,  but  they  were  not 
to  be  fully  discharged  until  payment  of  75/.  it 
was  found  as  a  fact  that  the  defendant  Digby 
consented  to  the  terms  of  the  judgment,  but  the 
defendant  Simson  did  not  consent : — Held,  that 
the  defendant  Simson  was  discharged  from 
liability  under  the  bond.  Tatum  v.  Evan*,  54 
L.  T.  336— Denman,  J. 


3.  Rights  of  Subbtt. 

Crown  Debt  —  Priority.] — A  surety  to  the 
Crown,  who  has  paid  the  debt  of  his  deceased 
principal,  is  entitled  to  the  Crown's  priority  in 
the  administration  of  his  principal's  estate. 
Cliurchill  (LoroT),  In  re,  Manisty  v.  Chvrchillf 
39  Ch.  D.  174  ;  58  L.  J.,  Ch.  136  ;  59  L.  T.  597  ; 
36  W.  R.  805— North,  J. 

Specific  Performance  of  Indemnity,  before 
Breach.] — In  equity  a  contract  to  indemnify 
can  be  specifically  enforced  before  there  has 
been  any  such  breach  of  the  contract  as  would 
sustain  an  action  at  law.  In  equity  the  plaintiff 
need  not  pay  and  perhaps  ruin  himself  before 
seeking  relief.  He  is  entitled  to  be  relieved 
from  liability.  Johnston  v.  Salvage  Association, 
19  Q.  B.  D.  460  ;  57  L.  T.  219  ;  36  W.  R.  56  ;  6 
Asp.  M.  C.  167 — Per  Lindley,  L.  J. 

Surety  for  one  Partner  against  another  Part- 
ner.]— The  rights  of  a  surety  against  his  principal 
are  not  exactly  the  same  as  those  of  the  creditor ; 
and  therefore,  although  a  creditor  who  has  re- 
covered judgment  against  one  partner  cannot 
sue  another  partner,  that  rule  does  not  take 
away  the  rights  of  a  surety  for  one  partner 
as  against  another  partner.  Kendall  v.  Hamil- 
ton (4  App.  Cas.  504),  distinguished.  Badeley  v. 
Consolidated  Bank,  34  Ch.  D.  536  ;  55  L.  T. 
635  ;  35  W.  R.  186— Stirling,  J. 

Bight  to  Securities— Refusal  to  give  — 
Damages.] — The  plaintiff  was  the  drawer  of  a 
bill  of  exchange  for  106/.  as  surety  for  M.,  the 
acceptor.  The  bill  was  dishonoured  at  maturity, 
and  the  defendant  sued  the  plaintiff  and  M.  on 
the  bill.  Against  M.  he  obtained  judgment  by 
default,  and  against  the  plaintiff  on  the  trial 
of  the  action.  The  plaintiff  paid  the  amount. 
The  plaintiff  applied  to  the  defendant  for  an 
assignment  of  the  judgment  against  M.  The 
defendant  refused  to  assign,  and  the  plaintiff 


1585 


PRISONS. 


1586 


brought  an  action :— Held,  that  the  plaintiff 
was  prima  facie  entitled  to  recover  as  damages 
the  value  of  specific  assests  which  would  have 
been  available  for  execution  under  the  judgment, 
if  assigned,  and  that  it  was  not  incumbent  on 
him  in  the  first  instance  to  show  that  there  were 
no  other  assets  available.  Oddy  v.  Hallett,  1 C. 
&  B.  532 — Denman,  J. 

Co-Sureties  inter  §e — Concealment.]—  M.  and 
W.  became  co-sureties  for  a  sum  of  500/., 
borrowed  by  B.  Of  this  sum  of  5002.,  125J.  was, 
by  previous  agreement,  advanced  by  B.  to  his 
surety  W.  No  notice  of  this  transaction  was 
given  to  M.  B.  became  bankrupt,  and  M.  and  W. 
were  called  upon  to  pay  the  unpaid  balance  of 
the  loan  of  500Z.  M.  brought  an  action  against 
W.t  claiming  that  W.  should  be  treated  as 
principal  debtor  on  account  of  the  advance  of 
1252.  given  to  him,  and  claiming  the  benefit  of 
all  securities  given  to  him  : — Held,  that  there 
was  no  concealment  between  the  co-sureties  of 
any  material  fact,  and  that  the  plaintiff  was  not 
entitled  to  the  relief  claimed.  Mackreth  v. 
Walmsley,  51  L.  T.  19 ;  32  W.  R.  819— Kay,  J. 


Security  obtained  by  one'  co-Surety  who 


has  paid  off  Debt.]— C.  being  indebted  to  D., 
four  of  his  friends  joined  him  in  signing  and 
giving  four  promissory  notes  to  secure  the  pay- 
ment to  D.  of  the  sum  of  13,000Z.  and  interest. 
D.  effected  three  policies  on  the  life  of  C.  for, 
in  the  aggregate,  10,0002.  In  1867,  Lord  H.,  of 
E.}  one  of  the  co-sureties,  having  been  sued  by 
D.  on  the  notes,  paid,  with  the  assistance  of  his 
father,  the  Earl  of  E.,  the  13,0002.  and  interest 
by  a  mortgage  of  estates  which  were  settled  upon 
the  Earl  for  life  with  the  remainder  to  Lord  H. 
of  E. ;  and  the  Earl  having  paid  the  premiums 
and  kept  the  policies  on  foot,  in  September, 
1871,  shortly  after  the  death  of  C,  obtained  an 
assignment  from  D.  of  the  policies  and  received 
the  10,0002.  from  the  insurance  office.  A.,  another 
of  the  four  sureties  died.  His  estate,  which  was 
stated  to  be  insolvent,  was  being  administered 
by  the  court,  and  Lord  H.  of  E.  brought  in  a 
claim  against  it  for  contribution  in  respect  of 
the  sum  paid  to  D.  on  the  notes : — Held,  that, 
under  all  the  circumstances  of  the  case,  Lord  H. 
of  E.  and  his  father,  the  Earl,  must  be  treated  as 
one  person,  and  that  the  claim  for  contribution 
would  be  allowed,  but  only  after  Lord  H.  of  E. 
had  brought  into  account,  as  a  set-off,  the  moneys 
which  were  received  on  the  three  policies  as- 
signed to  the  Earl,  credit  being  first  given  for 
the  premiums,  and  other  moneys  which  had  been 
paid  in  reference  to  the  transaction.  Arcedeckne, 
In  re,  Atkins  v.  Arcedeckne,  24  Ch.  D.  709  ;  53 
L.  J.,  Ch.  102  ;  48  L.  T.  725— Pearson,  J. 

Satisfaction  of  Judgment.]— The  right 

of  a  co-surety  under  19  &  20  Vict,  c  97, 
who  has  satisfied  a  judgment  obtained  by  the 
•creditor  against  the  debtor  and  his  sureties,  to 
stand  in  the  place  of  the  judgment  creditor,  is 
not  affected  by  the  circumstances  that  such  surety 
has  not  obtained  an  actual  assignment  of  the 
judgment.  M'Myn,  In  re,  Lighbbownv.  M*Myn, 
33  Ch.  D.  576  ;  55  L.  J.,  Ch.  845  ;  55  L.  T.  834  ; 
35  W.  B.  179— Chitty,  J. 


PRISONS. 

Inquests  in — Jurisdiction.]— See  Coroheb. 

Treatment  in  Prison — "Criminal  Prisoner— 
Meaning  of.]— A  person  committed  to  prison 
under  6  &  7  Vict.  c.  73,  s.  32,  and  23  &  U  Vict 
c.  127,  s.  26,  for  acting  as  a  solicitor,  though  not 
duly  qualified,  is  a  "  criminal  prisoner  n  within 
28  k  29  Vict  c.  126,  s.  4,  which  enacts  that 
"criminal  prisoner  shall  mean  any  prisoner 
charged  with  or  convicted  of  a  crime."    Such  a 

Serson  is  not  entitled  to  be  treated  as  a  mis- 
emeanant  of  the  first  class  by  40  &  41  Vict 
c.  21,  s.  41.  Osborne  v.  MUnuin,  18  Q.  B.  D.  471 ; 
56  L.  J.,  Q.  B.  263  ;  56  L.  T.  808  ;  35  W.  R.  397; 
51  J.  P.  437— C.  A.  Reversing  16  Cox  C.  C.  138 
— Denman,  J. 

A  person  who  is  committed  to  prison  in  default 
of  distress  for  non-payment  of  a  sum  of  money 
adjudged  to  be  paid  by  a  court  of  summary 
jurisdiction  on  an  information  under  s.  31  of  the 
Vaccination  Act,  1867,  is  a  "  criminal  prisoner" 
within  the  meaning  of  the  Prisons  Act,  I860, 
s.  5,  and  must  be  treated  as  such  while  in  prison. 
Kennard  v.  Simmons,  50  L.  T.  28  ;  48  J.  P.  551 ; 
16  Cox,  C.  C.  397— Lindley,  L.  J. 

Hard  Labour — Ion-payment  of  Penalti*] 

— The  5th  section  of  the  Summary  Jurisdiction 
Act,  1879.  authorises  the  infliction  of  imprison- 
ment with  hard  labour  for  default  in  payment 
of  a  penalty  adjudged  to  be  paid  by  a  summary 
conviction  where  the  act  on  which  the  conviction 
is  founded  authorises  the  infliction  of  imprison- 
ment with  hard  labour  as  a  punishment  for  the 
offence.  Reg.  v.  Tynemauth  JJ.,  16  Q.  B.  D. 
647  ;  55  L.  J.,  M.  C.  181 ;  64  L.  T.  386 ;  50  J.  P. 
464  ;  16  Cox,  C.  C.  74-D. 

Whether  a  statute  which  authorises  the 
punishment  of  an  offence  with  a  penalty,  or  in 
the  discretion  of  the  court,  with  imprisonment 
with  or  without  hard  labour,  is  an  act  which 
authorises  the  punishment  of  imprisonment 
with  hard  labour  within  the  meaning  of  the 
exceptions  in  s.  5  of  the  Summary  Jurisdiction 
Act,  1879,  quaere.  Reg.  v.  Tynemovth  JJ.  (16 
Q.  B.  D.  647),  not  followed.  Reg.  v.  TvrnhiU, 
16  Cox,  C.  C.  110— D. 

Governor  of  Prison— Aotion  against,  for  Fain 
Imprisonment — Protection  of  Warrant.]— The 
governer  of  a  prison  is  protected  in  obeying  a 
warrant  of  commitment  valid  on  the  face  of  it, 
and  an  action  for  false  imprisonment  will  not  lie 
against  him  for  the  detention  of  a  prisoner  in 
pursuance  of  the  terms  of  such  warrant.  The 
plaintiff  having  been  convicted  by  a  court  of 
summary  jurisdiction  and  sentenced  to  seren 
days'  imprisonment,  a  warrant  of  commitment 
was  issued  directing  that  the  plaintiff  should  be 
imprisoned  in  a  certain  goal  for  seven  days.  The 
plaintiff  was  arrested  on  August  24,  and  loiged 
in  prison  on  August  25.  The  governor  of  the 
gaol  kept  the  plaintiff  in  prison  until  and  during 
August  31  : — Held,  that,  whether  or  not  the 
plaintiff's  sentence  ran  from  August  24  or  August 
25,  the  governor  was  protected  by  the  warrant, 
and  was  not  liable  to  an  action  for  false  im- 
prisonment in  respect  of  the  plaintiff's  detention 
on  August  31.    Henderson  v.  Preston,  21  Q.  B. 


1537 


PROHIBITION. 


1538 


D.  362  ;  57  L.  J.,  Q.  B.  607  ;  36  W.  R.  884  ;  62 
J.  P.  820— C.  A.    Affirming  69  L.  T.  334— D. 

Superannuation  of  Officers — Compensation — 
liability  of  County  to  pay.] — At  the  time  of  the 
passing  of  the  Prisons  Act,  1877,  C.  was  the 
governor  of  a  prison,  which,  pursuant  to  that 
statute,  was  transferred  to  the  Secretary  of  State 
for  the  Home  Department.  The  justices  of  M. 
had  been  the  local  authority  haying  control  of 
the  prison.  C.  retired  from  his  appointment 
soon  after  the  coming  into  force  of  that  act, 
and  the  Commissioners  of  the  Treasury  awarded 
to  C.  an  annuity  of  5822.  13*.  id.f  and  appor- 
tioned it  as  follows : — 429Z.  6*.  8d.  to  be  borne 
by  the  justices  of  M.,  and  133Z.  6#.  Sd.  to  be 
borne  by  grants  provided  by  parliament.  At 
the  time  of  his  retirement  C.  was  less  than  sixty 
years  of  age,  and  he  had  not  become  incapable 
from  sickness,  age,  or  infirmity,  or  injury,  of 
executing  his  office  in  person,  and  he  retired  for 
the  purpose  of  facilitating  improvements  in  the 
management  of  the  prison.  The  justices  having 
declined  to  pay  the  sum  of  429J.  6s.  Sd. :— Held, 
that  the  commissioners  had  jurisdiction  to  appor- 
tion the  annuity  granted  to  0.  in  the  manner 
above  mentioned,  and  that  a  mandamus  would 
lie  to  compel  the  justices  of  M.  to  pay  the  amount 
apportioned  upon  them.  Middlesex  Justices  v. 
Ay.,  9  App.  Cas.  757 ;  63  L.  J.,  Q.  B.  505 ;  51 
L.  T.  613;  33  W.  R.  49 ;  48  J.  P.  104  ;  15  Cox, 
C.  C.  542— H.  L.  (E.). 


PRIVILEGE. 

Of  Members  of  Parliament.]— &w  Pablia- 


Of  Witnesses.]— See  Evidence,  VII.  3. 
Of  SeUeiton.]— See  Solioitob. 

In  Actions  for  Defamation.] — See  Defama- 
noK,  I.  2. 


PRIVILEGED  COMMUNI- 
CATIONS. 

Won-aetionable.]— &#  Defamation. 

Von-prodaetion,   fte.,  ot]—See   Discovery, 
L  4  and  II.  6. 


PBIVT  COUNCIL. 

Practise  and  Decisions  of.]— &*  cases  sab  tit. 

COfcOHT. 


PROBATE. 

Of  Wills.}— See  Will. 
DfttyJ— See  Revenue,  III.  6. 


PROHIBITION. 


Severable  Claims  —  Part  Good.]  —Where  a 
plaint  contains  two  claims,  one  of  which  is 
within  and  the  other  without  the  jurisdiction  of 
the  county  court,  a  prohibition  may  be  granted 
as  to  one  only.  Reg.  v.  Westmoreland  County 
Court  Judge,  68  L.  T.  417 ;  36  W.  R.  477— D. 

Acquiescence  —  Effect  of.]  —  Except  on  the 
application  of  the  Crown,  the  court  will  refuse 
to  grant  a  writ  of  prohibition  where  the  defect 
in  jurisdiction  depends  upon  some  fact  in  the 
knowledge  of  the  applicant,  which  he  has  neg- 
lected without  excuse  to  bring  forward  in  the 
court  below,  since  the  writ,  though  of  right,  is 
not  of  course.  Broad  v.  Perkins,  21  Q.  B.  D. 
633  ;  57  L.  J.,  Q.  B.  638  ;  60  L.  T.  8  ;  37  W.  R. 
44  ;  53  J.  P.  39— C.  A. 

When  it  may  be  applied  for — Before  Execu- 
tion completed.]— Where  in  an  action  in  an  in- 
ferior court,  upon  the  facts  disclosed  at  the  trial 
and  relied  on  by  the  plaintiff,  a  clear  want  of  juris- 
diction over  the  cause  is  for  the  first  time  made 
apparent,  the  defendant  has  a  right,  at  any  time 
before  execution  has  been  completed,  to  claim  a 
prohibition  to  restrain  all  further  proceedings, 
and  to  prohibit  any  further  excess  of  jurisdic- 
tion. Prohibition  will  not  go  to  an  inferior 
court,  if  such  court  had  in  fact  jurisdiction  over 
the  cause,  although  the  facts  in  evidence  at  the 
trial  in  the  inferior  court  were  not  such  as  to 
give  that  court  jurisdiction.  Heyworth  v. 
London  (Mayor),  1  C.  &  E.  312— Hawkins,  J. 
Affirmed  in  C.  A. 

After  Judgment  — Salford  Hundred  Court — 
Waiver.]— A  defendant  in  an  action  in  the  Sal- 
ford  Hundred  Court  who  has  not  objected  to  the 
jurisdiction  of  that  court  in  his  defence,  as  pro- 
vided by  s.  7  of  the  Salford  Hundred  Court  of 
Record  Act,  1868,  cannot  after  judgment  has 
been  recovered  against  him  in  that  court  obtain 
a  writ  of  prohibition  on  the  ground  of  want  of 
jurisdiction.  Oram  v.  Breary  (2  Ex.  D.  346), 
overruled.  Ckadwick  v.  Ball,  14  Q.  B.  D.  866  ; 
54  L.  J.,  Q.  B.  396 ;  52  L.  T.  949— C.  A. 

To  County  Court— Insufficient  Votiee  of  Few 
Trial — Jurisdiction  to  hear  Case.] — A  notice 
was  given  by  the  defendant  to  the  plaintiffs  by 
letter  on  the  8th  Nov.  stating  that  he  would 
apply  on  the  12th  Nov.  for  a  new  trial  The 
plaintiffs  refused  to  accept  this  notice  as  being 
too  short,  and  did  not  attend  at  the  hearing  on 
the  12th.  The  fact  that  the  plaintiffs  objected 
to  the  notice  was  brought  before  the  judge,  who, 
however,  made  an  order  for  a  new  trial.  The 
plaintiffs  applied  for  a  prohibition  to  restrain  the 
judge  from  tearing  the  case  on  the  new  trial : — 
Held,  that  a  prohibition  ought  not  to  be  granted, 
as  the  proper  proceeding  for  the  plaintiffs  to  have 
adopted  would  have  been  to  have  made  an  appli- 
cation to  the  judge  to  set  aside  the  order  for  a 
new  trial  as  irregular.  Jones'  Trustees  v.  Qit- 
tens,  51  L.  T.  599— D. 

Setting  aside— Jurisdiction  of  Judge  at 
Chambers.]— A  writ  of  prohibition,  directed  to 
the  judge  of  a  county  court,  had  been  issued 
out  of  the  Petty  Bag  Office,  as  of  course,  upon 

3  D 


1589 


QUO    WARKANTO. 


1540 


a  formal  affidavit  that  the  cause  of  action  did 
not  arise  within  the  jurisdiction : — Held,  that 
a  judge  at  chambers  had  jurisdiction  to  set 
aside  the  writ.  Amstell  v.  Lester,  16  Q.  B.  D. 
187;  65  L.  J.,  Q.  B.  114  ;  53  L.  T.  759  ;  34  W.  B. 
230—  D. 

To  Local  Government  Board.]— Semble,  the 
local  government  board  in  exercising  its  func- 
tions as  to  provisional  orders  is  not  a  "  court," 
nor  are  purely  legislative  powers,  or  powers  of 
promoting  legislation  on  principle,  subject  to 
prohibition ;  but  a  usurpation  of  jurisdiction  of 
a  judicial  character  by  the  board  might  be  pro- 
hibited. Kingstoum  Commissioners,  Ew  parte, 
18  L.  R.,  Ir.  609— C.  A. 


PROMISSORY    NOTE. 

See  BILLS  OF  EXCHANGE. 


PROMOTER. 

See  COMPANY,  IL  1. 


PROOF   OP   DEBTS. 

In  Bankruptcy.] — See  Bankruptcy. 
In  Winding  up.]— See  Company. 

In  Administration.]  —  See  Executor  and 
Administrator. 


PROSPECTUS. 

See  COMPANY,  I.  1. 


PROTECTOR  OP   SETTLE- 
MENT. 

See  SETTLEMENT. 


PROXY. 

See  COMPANY,  IX. 


PUBLIC   COMPANY. 

See  COMPANY. 


PUBLIC   HEALTH. 

See  HEALTH. 


PUBLIC  HOUSE. 

See  INTOXICATING  LIQUORS. 


PUBLIC   OFFICER. 

See  OFFICE. 


PUBLIC  WORSHIP. 

See  ECCLESIASTICAL  LAW. 


QUARTER   SESSIONS. 

See  JUSTICE  OF  THE  PEACE. 


QUEENSLAND, 

~See  COLONY. 


QUO  WARRANTO. 

In  what  Gases— Office  held  at  Pleasure.]— A 

quo  warranto  will  not  be  granted  to  inquire  into 
the  right  of  an  office  which  is  held  merely  at  the 
pleasure  of  a  public  official.  Reg.  y.  tisrrotf, 
22  L.  R.,  Ir.  400— Q.  B.  D. 

Bate  Collector. J— The  office  of  collector 

of  rates  of  a  borough  is  not  an  office  for  which 
an  information  in  the  nature  of  a  quo  warranto 
will  lie.  Beg.  v.  WheUtn,  20  L.  k,  Ir.  461— 
Q.B.  D. 


1541 


RAILWAYS. 


1542 


RAILWAYS. 

1.  Powers  and  Duties   in   Constructing   and 

Working,  1541. 

2.  Mines  and  Minerals,  1546. 
9.  Rolling  Stock,  1548. 

4.  Judgment  against,  1548. 

5.  Offences  against,  1550. 

6.  Arbitration  bettoeen  Railways,  1661. 

7.  RaUtcay  Commissioners,  1552. 

8.  As  Carriers  of  Passengers  and  Goods— See 

Carries. 

9.  Compulsory  Purchase    of  Land,  J^c. — See 

Lands  Clauses  Act. 

10.  Liability  for  Negligence — See  NEGLIGENCE. 

11.  Rating — Sec  CORPORATION— POOB  LAW. 

12.  Liability      tinder      Contagious      Diseases 

(Animals)  Act — See  Animals. 

13.  Parliamentary  Deposit — Abandonment — See 

Parliament. 


I.  Powers  and  Duties  in  Constructing 
and  Working. 

lien  on  Land* — Unpaid  Vendor— Injunction.] 
—•Where  the  unpaid  vendor  of  land  taken  by  a 
railway  company  has  commenced  an  action 
against  the  company  to  enforce  his  lien,  and  an 
order  has  been  made  in  such  action  that  the 
defendants  should,  on  or  before  a  day  named, 
pay  the  purchase-money  and  interest,  with  a 
declaration  that  the  plaintiff  was  entitled  to  a 
hen  on  the  lands  in  respect  of  the  purchase- 
money,  interest,  and  costs,  and  that  in  default 
of  payment  the  plaintiff  was  to  be  at  liberty  to 
apply  to  enforce  such  lien,  such  order  containing 
no  order  for  sale,  the  court  will  on  default  in 
payment,  there  being  evidence  that  the  land  is 
unsaleable,  grant  an  injunction  to  restrain  the 
defendants  from  running  trains  over  the  railway 
and  from  continuing  in  possession  of  the  land. 
Williams  v.  Aylesbury  and  Buckingham  Rail- 
way  (21  W.  R.  819),  and  Munns  v.  Isle  of  Wight 
Railway  (5  L.  R.,  Ch.  414),  discussed.  Allgood 
t.  Merrybent  and  Darlington  Railway,  33  Ch. 
B.  571  ;  56  L.  J.,  Ch.  743  ;  56  L.  T.  835  ;  35  W.  R. 
180-Chitty,  J. 

— -  Surplus  Lands— Debenture  8tock— Charge 
—Priority.] — Section  23  of  the  Railway  Com- 
panies Act,  1867,  does  not  give  to  the  holders  of 
debenture  stock  in  a  railway  company  any  lien 
or  charge  on  the  surplus  lands,  or  on  the  pro- 
ceeds of  the  sale  of  surplus  lands  of  the  company, 
nor  does  that  section  give  debenture-holders  any 
priority  in  payment  over  judgment  creditors  of 
the  company  in  proceedings  taken  by  such 
creditors  under  the  Judgments  Law  Amendment 
Act,  1864,  for  the  sale  of  surplus  lands  of  the 
railway  company.  The  right  to  priority  in  pay- 
pent  given  to  debenture-holders  by  s.  23  arises 
in  the  following  cases  at  all  events— -(1)  in  the 
distribution  of  moneys  collected  under  s.  4  of  the 
Bailway  Companies  Act,  1867,  by  the  receiver 
appointed  under  that  section ;  (2)  in  the  winding- 
up  of  an  abandoned  railway  under  the  joint 
provisions  of  the  Abandonment  of  Railways  Acts, 
1860  and  1869,  and  of  the  Companies  Acts,  1862 
and  1867;  and  (3)  in  the  working  out  of  a 
scheme  of  arrangement  under  the  provisions  of 
the  Railway  Companies  Act,  1867.  Hull,  Barns- 
ley,  and    West    Riding    Railway,  In    re,  40 


Ch.  D.  119;  58  L.  J.,  Ch. 
37  W.  R.  146— C.  A. 


205 ;  59  L.  T.  877 


8tation— "  Ho  Goods  or  Cattle  Station  at."]— 
In  an  action  the  plaintiff  asked  for  an  injunction 
to  compel  the  defendants  to  pull  down  a  goods 
station  and  cattle  sheds  which  they  had  erected 
140  yards  from  Bala  Station,  although  it  was  pro- 
vided by  their  private  act  "  that  at  that  station 
there  should  be  no  goods  or  cattle  station."  The 
plaintiff  had  not  objected  to  the  buildings  till 
they  were  nearly  completed,  owing  to  his  being 
abroad  at  the  time,  and  ignorant  of  their  erection 
till  his  return.  The  defendants  contended  that 
the  buildings  in  question  had  not  been  erected 
"  at "  the  station,  as  they  were  140  yards  off ; 
that  if  they  had  been,  it  was  for  the  public  con- 
venience they  should  be  there,  and  that  the 
plaintiff  was  precluded  by  acquiescence  from 
insisting  on  his  claim : — Held,  that  the  erections 
were  a  breach  of  the  provisions  of  the  act,  and 
that  the  plaintiff  was  entitled  to  his  injunction. 
Price  v.  Bala  and  Festiniog  Railway,  50  L.  T. 
787— Chitty,  J. 

Property  in  Materials  Delivered  but  not 
Fixed — Engineer's  Certificates.]— By  an  agree- 
ment, made  between  the  plaintiff  company  and 
the  defendant,  a  contractor,  for  the  construction 
of  a  railway,  it  was  provided  that,  once  a  month, 
the  company's  engineer  should  certify  the  amount 
payable  to  the  contractor  in  respect  of  the  value 
of  the  materials  delivered,  and  that  such  certifi- 
cates should  be  paid  by  the  company  seven  days 
after  presentation  : — Held,  that  the  property  in 
"  materials  delivered,"  upon  their  being  certified 
for  by  the  engineer,  passed  to  the  company, 
though  the  materials  were  not  fixed.  Banbury 
and  Cheltenham  Railway  v.  Daniel,  54  L.  J., 
Ch.  265  ;  83  W.  R.  321— Pearson,  J. 

Stoppage  of  all  Trains  at  Particular  Station.] 
— By  feu  charter,  dated  1863,  between  A.,  the 
proprietor  of  land  through  which  a  railway 
was  authorised  to  run,  and  the  railway  com- 
pany, it  was  provided  that  the  company  should 
be  bound  to  erect  on  a  piece  of  ground  conveyed 
to  them  by  A.  at  a  nominal  feu  rent,  "  a  station 
for  passengers  and  goods  travelling  by  the  said  " 
railway,  "at  which  all  passenger  trains  shall 
regularly  stop,"  to  be  called  Crathes  Station. 
The  station  was  erected.  Subsequently  certain 
trains  were  run,  namely  (1)  excursion  trains  at 
low  fares  to  certain  places  on  the  line,  but  not 
to  Crathes  Station.  They  were  advertised  by 
special  handbills,  and  were  not  included  in  the 
time-tables  except  in  error.  (2)  Trains  called 
the  Queen's  messenger  trains,  ran  by  arrange- 
ment with  the  Home  Office,  who  paid  the  rail- 
way company  a  subsidy.  (3)  Trains  called  the 
Post  Office  trains,  ran  by  arrangement  with  the 
Post  Office,  for  which  a  subsidy  was  also  paid. 
The  Queen's  messenger  trains  and  the  Post  Office 
trains  only  ran  during  her  Majesty's  stay  at 
Balmoral ;  but  they  were  advertised  in  the  rail- 
way company's  time-table,  and  through  passen- 
gers were  allowed  to  travel  by  them.  They 
stopped  at  Crathes  by  signal,  but  did  not  stop 
regularly  for  setting  down  or  taking;  up  passen- 
gers. There  was  no  contract  with  the  Home 
Office  or  Post  Office  that  they  should  not  do  so. 
A.  sought  declarator  that  all  trains,  including 
the  above,  except  only  such  as  might  be  hired 
for  an  individual  or  individuals  for  his  or  their 

3  D  2 


1543 


RAILWAYS. 


1544 


exclusive  use,  should  regularly  stop : — Held, 
that  the  trains  called  the  Queen's  messenger 
trains,  and  the  Post  Office  trains,  fell  within  the 
terms  of  the  contract ;  but  that  the  excursion 
trains  in  the  circumstances  materially  differed 
from  ordinary  passenger  trains,  and  did  not 
come  within  the  obligation.  Burnett  v.  Cheat 
North  of  Scotland  Railway,  10  App.  Cas. 
147  ;  64  L.  J.,  Q.  B.  531  ;  53  L.  T.  507— 
H.  L.  (Sc.). 

Junction  with  Private  Siding— Expense  of 
Fresh  Signals— Board  of  Trade  Order.]— The 
plaintiff  and  his  predecessors  in  title,  as  owners 
of  land  adjoining  a  single  line  of  railway,  had 
ever  since  the  year  1861  used  a  junction  siding 
connecting  the  railway  with  a  foundry  on  their 
land,  the  siding  being  the  only  access  to  the 
foundry.  The  defendants,  the  railway  company, 
haring  doubled  their  line,  the  Board  of  Trade, 
acting  on  the  report  of  their  inspector,  and  as  a 
condition  for  certifying  the  line  to  be  fit  for 
traffic,  required  the  company  either  to  provide 
the  junction  of  the  siding  with  the  modern  and 
improved  system  of  interlocking  and  signalling 
apparatus,  or  to  remove  the  junction,  which  was 
of  an  old-fashioned  description.  The  company 
then  called  upon  the  plaintiff  to  execute  the 
work  or  pay  the  costs  of  it,  but  this  the  plaintiff 
declined  to  do,  whereupon  the  company  took  up 
the  junction  points: — Held,  by  Bacon,  V.-C, 
that  the  plaintiff  had,  under  b.  76  of  the  Rail- 
ways Clauses  Consolidation  Act,  1845,  a  statu- 
tory right  to  the  use  of  his  siding  in  connexion 
with  the  company's  railway,  the  company's  par- 
liamentary powers  being  subject  to  that  right ; 
and  an  injunction  was  therefore  granted  re- 
straining the  company  from  continuing  to  pre- 
vent communication  between  his  siding  and  the 
railway,  and  compelling  the  company  to  restore 
the  junction: — Held,  on  appeal,  that  as  the 
plaintiff's  predecessors  in  true  had  acquired  a 
perpetual  nght  to  use  the  siding  under  a  clause 
as  to  sidingB  in  an  old  local  act  for  making  a 
tramway,  which  had  since  been  converted  into 
the  railway  of  the  defendants,  and  the  subse- 
quent acts  contained  saving  clauses  sufficient  to 
protect  all  rights  acquired  by  the  plaintiff  under 
the  old  act,  the  case  did  not  depend  on  the  Bail- 
ways  Clauses  Act,  and  that  the  plaintiff  re- 
tained the  right  acquired  under  the  old  act  to 
use  the  siding  without  contributing  to  the  ex- 
pense of  the  new  apparatus,  such  act  containing 
nothing  to  oblige  the  plaintiff  to  make  or  pay 
for  the  interlocking  apparatus.  Woodruff  v. 
Brecon  and  Merthyr  TyavU  Railway,  28  Ch.  D. 
190  ;  54  L.  J.,  Ch.  620  ;  52  L.  T.  69  ;  33  W.  R. 
126— C.  A. 

Held  also,  that  if  the  case  had  turned  on  the 
76th  section  of  the  Railways  Clauses  Act,  the 
court  would  not  have  decided  the  question 
whether  the  plaintiff  was  bound  to  pay  for  the 
interlocking  apparatus,  without  first  ascertain- 
ing what,  in  the  year  1845,  was  included  in  the 
terms  "offset  plates"  and  "switches"  used  in 
that  section.    lb. 

Power  to  TSnderpin  Buildings  on  Adjoining 
Lands— Betaining  Wall  of  Railway.]— A  rail- 
way company  had  power  to  underpin  or 
strengthen  buildings  on  lands  adjoining  their 
line.  They  carried  their  line  in  a  deep  cutting 
close  beside  a  building  belonging  to  the  plain- 
tiffs, and  having  given  the  required  notice  that 


they  intended  to  underpin  this  building,  they 
made  a  wall  of  concrete  to  support  the  plain- 
tiff's building,  part  of  the  thickness  of  which 
was  under  the  plaintiff's  building,  and  part  on 
the  company's  land,  the  whole  wall  forming  the 
retaining  wall  of  the  railway  cutting :— Held, 
that  the  fact  that  the  concrete  wall  was  also  the 
retaining  wall  of  the  railway  did  not  make  it 
the  less  an  "  underpinning  "  within  the  meaning 
of  the  act ;  and  therefore  that  the  company  had 
not  acted  beyond  their  powers  in  making  the 
wall  on  the  plaintiff's  land.    Steven*  v.  Metro- 
politan District  Railway,  29  Ch.  D.  60;  54 
L.  J.,  Ch.  737  ;  62  L.  T.  832  ;  33  W.  R.  551- 
C.A. 

Broken  Bridge  U  Bavigable  River— Removal 
of  Debris.]— The  North  British  Railway  (New 
Tay  Bridge)  Act,  1881,  gave  the  North  British 
Railway  authority  to  erect  a  new  bridge  over 
the  Tay  a  little  higher  up  the  river  than  one 
blown  down  on  28th  December,  1879.    S.  21  of 
this  act  provided,  "  The  company  shall  abandon 
and  cause  to  be  disused  as  a  railway  so  much  of 
the  North  British  Railway  as  lies  between  the 
respective  points  of  junction  therewith  of  rail- 
way No.  1  and  railway  No.  2  ;  and  shall  remove 
the  ruins  and  debris  of  the  old  bridge,  and  all 
obstructions  interfering   with   the   navigation 
caused  by  the  old  bridge,  to  the  satisfaction  of 
the  Board  of  Trade."    The  magistrates  of  Perth, 
whose  jurisdiction  extends  down  the  river  to 
within  about  three   miles   of   the  old  bridge, 
raised  an  action  for  declarator  and  implement: 
—Held  (1)  I***  to*  special   act  imposed  am 
absolute  obligation  to  remove  the  old  ruins  and 
debris  of  the  old  bridge ;  and  s.  21  did  not  give 
the  Board  of  Trade  a  discretionary  power  to  dis- 
pense with  the  performance  of  any  part  of  this 
obligation  ;  and  it  followed  that  the  respondents 
had  an  interest  to  obtain  a  declarator  as  to  the 
extent   of  the  obligation ;  but  (2)  dissenting 
from   the   judgment  of   the  court  below,  the 
obligation  did  not  become  immediately  prestabto ; 
and  (3)  the  import  of  the  expression  "to  the 
satisfaction  of  the  Board  of  Trade  "  was,  that 
though  not  bound  to  submit  their  plans  of 
removal,  including  the  time  and  manner,  yet,  aa 
a  matter  of  prudence,  the  company  ought  to  do 
so ;  (4)  that  in  the  circumstances  it  would  be 
inexpedient,  though  hardly  incompetent,  to  do 
more  now  than  simply  ordain  the  company  to 
remove  the  whole  ruins  and  debris  in  terms  of 
s.  21,  for  to  order  the  removal  "  forthwith  "  might 
unduly  hamper  the  discretion  of  the  Board  of 
Trade ;   and   if  the  company  were  guilty  of 
undue  delay  in  applying  to  the  Board  of  Trade : 
or  if  they  should  proceed  at  their  own  hand  so 
as  to  cause  obstruction  to  navigation ;  or  if  after 
obtaining  the  sanction  of  the  Board  of  Trade  to 
some  scheme  of  removal,  they  failed  to  properly 
execute   it,  or  any  conditions   Attached,  the 
respondents,  on  application  to  the  court  had 
an  effective  remedy.    North  British  Railway 
v.  Perth,  Provost  of,  10  App.  Cas.  679— H.  L- 
(Sc). 

Bridge*-— Opening  Span— Detention  of  Vessel) 
— A  railway  company  carried  its  line  over  the 
river  D.,  which  was  a  navigable  river,  by  a 
bridge  with  an  opening  span  : — Held,  that  the 
railway  company  were  not  bound,  by  s.  15  of  the 
Railway  Clauses  Act,  1868,  to  open  the  bridge 
for  a  barge  with  a  mast  so  constructed  that  it 


1545 


RAILWAYS. 


1546 


coald  be  lowered,  and  that  refusing  to  open  the 
bridge  for  such  a  vessel  was  not  a  detention 
within  the  meaning  of  the  act.  West  Lancashire 
Jtotlway  v.  Iddon,  49  L.  T.  600 ;  48  J.  P.  199— D. 

Bepair—  Highway  carried  over  Rail- 
way.]—Where  a  railway  crosses  a  highway,  and 
the  road  is  carried  oyer  the  railway  by  means  of 
a  bridge  in  accordance  with  the  provisions  of 
a  46  of  the  Railways  Clauses  Consolidation  Act, 
1845,  the  railway  company  are  bound  to  keep  in 
repair  the  roadway  upon  the  bridge,  such  road- 
way being  part  of  the  bridge  which  by  the 
section  the  company  are  to  maintain.  Bury 
(Mayor)  v.  Lancashire  and  Yorkshire  Railway, 
20  Q.  B.  D.  485  ;  67  L.  J.,  Q.  B.  280  ;  69  L.  T. 
193 ;  36  W.  B.  491 ;  62  J.  P.  341— C.  A.  Affirmed 
in  H.  L.,  W.  N.,  1889,  p.  166. 

Diversion  of  Boad  authorised  by  special  Act- 
Danger—  Injunction.]— The  B.  Bailway  Com- 
panv  had,  by  their  special  act,  power  to  divert 
roads  and  make  the  substitutions  shown  on  their 
deposited  plans.    The  plans  showed,  as  a  sub- 
stitute for  a  road  passing  along  the  side  of  a 
mountain  on  which  part  of  the  line  was  to  be 
constructed,  a  curved  road  above  the  old  one  to 
be  cut  out  of  the  mountain  side.    The  railway 
company  had  taken  possession  of  the  old  road 
and  made  an  embankment  upon  it,  upon  which 
they  had  laid  a  portion  of  their  line,  which  was 
in  use  for  ballast  trains,  used  in  the  construction 
of  the  line,  but  not  open  to  the  public    They 
bad  made  the  new  road,  but  it  was  made  dan- 
gerous in  winter  weather  by  the  constant  falling 
upon  it  of  stones  from  the  steep  slope  of  the 
mountain  above  it    This  was  an  action  by  the 
Attorney-General  on  the  information  of  the  local 
board  for  the  district  claiming  an  injunction  to 
restrain  the  railway  company  from  using  the  old 
road  until  they  had  caused  a  sufficient  road  to 
be  made  in  its  stead  -.—Held,  that  s.  63  of  the 
Bailways  Clauses  Act,  1846,  applied  notwith- 
standing the  fact  that  the  taking  of  the  old 
road  and  substitution  of  the  new  were  authorised 
by  the  company's  special  act,  and  that  the 
injunction  must  be  granted.    On  the  company's 
undertaking  forthwith  to  lower  the  inclination 
of  the  slope  of  the  mountain  above  the  road  so 
as  to  make  the  road  safe,  the  injunction  was  sus- 
pended.   Attorney-  General  v.  Barry  Dock  and 
Railway  Company,  85  Ch.  D.  673 ;  56  L.  J., 
Ch.  1018 ;  66  L.  T.  559  ;  35  W.  B.  830  ;  61  J.  P. 
644— North,  J. 

nuisance  —  Statutory  Powers  —  Land  Pur- 
chased otherwise  than  under  Compulsory 
Powers,] — A  railway  company,  having,  besides 
the  ordinary  compulsory  powers  of  taking  land, 
power  to  purchase  by  agreement  additional 
lands,  not  exceeding  fifty  acres  in  all,  in  such 
places  as  should  be  deemed  eligible  for  any  of 
certain  specified  purposes  connected  with  the 
undertaking  which  it  should  deem  requisite, 
bona  fide  selected  and  acquired  additional  lands 
and  used  them  without  negligence  for  one  of  the 
purposes  authorised,  to  wit,  as  a  dock  or  yard  for 
the  reception  of  cattle  travelling  upon  the  line. 
A  nuisance  was  thereby  caused  to  adjoining  occu- 
piers : — Held,  that  the  nuisance,  being  a  necessary 
consequence  of  the  use  of  the  lands  for  a  purpose 
expressly  authorized  by  Parliament,  could  not 
be  restrained  by  injunction.  Rex  v.  Pease 
(4  B.  *  Ad.  30),  Vaughan  v.  Taff  Vale  Railway 


(5  H.  &  N.  679),  and  Hammersmith  Railway 
Company  v.  Brand  (4  L.  R.,  H.  L.  171)  followed. 
Metropolitan  Asylum  District  v.  Hill  (6  App. 
Oas.  193)  distinguished.  London,  Brighton,  and 
South  Coast  Railway  v.  Truman,  11  App.  Cas. 
46;  55  L.  J.,  Ch.  354;  54  L.  T.  250;  34  W.  B, 
667  ;  60  J.  P.  388— H.  L.  (E.) 

Liability  for  sending  Water  on  adjoining 
Lands  for  Protection  of  Defendants'  Premises.  J 
— By  reason  of  an  unprecedented  rainfall  a 
quantity  of  water  was  accumulated  against  one 
of  the  sides  of  the  defendants'  railway  embank- 
ment, to  such  an  extent  as  to  endanger  the 
embankment,  when,  in  order  to  protect  their 
embankment,  the  defendants  cut  trenches  in  it 
by  which  the  water  flowed  through,  and  went 
ultimately  on  to  the  land  of  the  plaintiff,  which 
was  on  the  opposite  side  of  the  embankment 
and  at  a  lower  level,  and  flooded  and  injured  it 
to  a  greater  extent  than  it  would  have  done 
had  the  trenches  not  been  cut.  In  an  action  for 
damages  for  such  injury,  the  jury  found  that  the 
cutting  of  the  trenches  was  reasonably  necessary 
for  the  protection  of  the  defendants'  property, 
and  that  it  was  not  done  negligently : — Held, 
that  though  the  defendants  had  not  brought  the 
water  on  their  land,  they  had  no  right  to  protect 
their  property  by  transferring  the  mischief  from 
their  own  land  to  that  of  the  plaintiff,  and 
that  they  were  therefore  liable.  Whalley  v. 
Lancashire  and  Yorkshire  Railway,  13  Q.  B.  D. 
131  ;  53  L.  J.,  Q.  B.  286  ;  50  L.  T.  472  ;  82  W.  R. 
711  ;  48  J.  P.  500— C.  A. 


2.  Mines  and  Minerals. 

Notice  by  Owner  of  Intention  to  Work— In- 
junction—Minerals  worked   by  Quarrying.] — 

An  owner  of  minerals  under  or  near  a  railway  is 
entitled  to  give  notice  under  s.  78  of  the  Rail- 
ways Clauses  Act,  1845,  of  his  intention  to  work 
them,  although  he  intends  to  let  them  and  not 
to  work  them  himself.  But  a  notice  given  with- 
out any  real  intention  or  probability  of  working 
or  letting  the  minerals  would  be  invalid,  and 
the  court  would  restrain  the  owner  from  acting 
upon  it  Such  a  notice  is  not  invalid  or  un- 
reasonable merely  because  it  includes  the 
minerals  under  a  long  extent  of  railway.  Sec- 
tions 77  and  78  of  the  Railways  Clauses  Act, 
1845,  apply  to  minerals  worked  by  open  quarry- 
ing as  well  as  those  which  are  got  by  under- 
ground working.  Midland  Railway  Company 
v.  Haunchwood  Brick  and  Tile  Company  (20  Ch. 
D.  552)  approved.  Midland  Railway  v.  Robin- 
son, 37  Ch.  D.  386  ;  57  L.  J.,  Ch.  441  ;  57  L.  T. 
901 ;  36  W.  R.  660— C.  A. 

Working— Tunnelling  under  Railway— Com- 
pensation.]— S.  80  of  the  Railways  Clauses  Con- 
solidation Act,  1845,  applies  to  minerals  lying 
more  than  forty  yards  from  a  line  of  railway, 
and  enables  the  owner  of  minerals,  whose  access 
to  them  is  cut  off,  by  reason  of  a  railway  com- 
pany having  purchased  from  him  the  minerals 
lying  under  their  line  of  railway  or  within 
forty  yards  from  it  to  tunnel  under  the  railway 
for  the  purpose  of  working  his  minerals  which 
are  on  the  other  side  of  it.  And  this  power 
extends,  not  only  to  minerals  in  the  ordinary 


1547 


RAILWAYS. 


1548 


sense  of  the  word,  bat  also  to  such  a  substance 
as  clay,  which  is  usually  worked  from  the  sur- 
face. And  by  8.  81  the  mineral  owner  is  en- 
titled to  be  compensated  by  the  company  for 
any  additional  expense  caused  by  his  having  to 
work  the  minerals  in  this  way.  Midland  Rail- 
way  v.  Miles,  30  Ch.  D.  634  ;  55  L.  J.,  Ch.  251  ; 
53  L.  T.  381  ;  34  W.  R.  136— Pearson,  J. 

The  defendant  was  the  owner  of  the  minerals 
lying  in  and  under  a  triangular  piece  of  land, 
which  was  completely  surrounded  oy  three  lines 
of  railway  belonging  to  the  plaintiffs,  and  also 
of  the  minerals  lying  under  certain  portions  of 
those  three  lines.  The  company  had  purchased 
the  surface  of  the  triangular  piece  of  land,  and 
also  the  surface  of  the  land  on  which  those  parts 
of  the  three  lines  were  constructed.  The  mine- 
rals in  and  under  the  lands  so  purchased  were 
not  in  the  first  instance  purchased  by  the  com- 
pany. The  defendant,  in  April,  1885,  gave  the 
company  notice,  under  s.  78  of  the  Railways 
Clauses  Act,  1845,  of  his  intention  to  work  the 
minerals  belonging  to  him  in  and  under  the 
triangular  piece  of  land,  and  also  under  the  lines 
of  railway.  The  company  gave  the  defendant 
notice  that  they  were  willing  to  make  compen- 
sation for  the  minerals  under  the  lines  of  rail- 
way, and  arbitrators  were  appointed  to  assess 
the  compensation.  The  defendant  then  gave 
the  company  notice  that  he  intended  to  work 
the  minerals  in  and  under  the  triangular  piece 
of  land,  and  for  that  purpose  to  enter  upon  and 
across  the  line  of  railway : — Held,  that  such  a 
mode  of  working  would  be  a  trespass,  and  that 
the  defendant  must  be  restrained  from  working 
in  that  way,  but  that  he  would  be  entitled  to 
tunnel  under  the  railway  in  order  to  work  the 
minerals  in  and  under  the  triangular  piece  of 
land,  and  that  the  company  must  compensate 
him  for  the  extra  expense  of  so  working.    lb. 

A  railway  company  under  the  powers  of  a 
special  act  and  of  the  Railway  Clauses  Act, 
1845,  bought  a  piece  of  land  on  part  of  which 
they  made  three  railways  leaving  the  rest  of  the 
land  within  the  triangle  formed  by  the  railways, 
except  two  small  pieces  on  the  west  of  their 
lines.  The  landowner  from  whom  they  bought 
owned  the  adjoining  land  on  the  east.  This  he 
afterwards  sold,  but  acquired  a  right  of  way  over 
it.  He  had  also  bought  the  two  severed  pieces 
on  the  west.  The  conveyances  to  the  railway 
company  did  not  include  the  minerals  under  the 
land : — Held,  that  as  under  the  special  act  and 
under  s.  80  of  the  Railways  Clauses  Act,  the  land- 
owner when  he  sold  the  land  was  entitled  to 
make  passages  under  the  railway  from  his  land 
on  the  east,  no  right  of  way  over  the  railway  for 
the  purpose  of  working  the  minerals  would  be 
implied,  and  that  he  had  not  now  such  right  of 
way.  And  that,  being  neither  "  owner,  lessee, 
nor  occupier  "  of  the  land  to  the  east,  he  had  no 
right,  under  s.  79  of  the  Railways  Clauses  Act, 
to  work  the  minerals  on  the  land  within  the 
triangle  by  means  of  passages  under  the  rail- 
way ;  but  he  might  work  the  minerals  from  the 
pieces  of  land  on  the  west,  and  under  s.  81  get 
compensation  for  extra  expenses.  Midland  Rail- 
way v.  Miles,  33  Ch.  D.  632 ;  55  L.  J.,  Ch.  745 ; 
55  L.  T.  428 ;  35  W.  R.  76— Stirling,  J. 

Held  also,  that  under  s.  79  of  the  Railway 
Clauses  Act  the  owner  of  the  minerals  might, 
having  lawfully  made  a  communication  with 
the  land  sold  to  the  railway  company,  work  the 
minerals  by  open  workings,  that  being  the  usual 


mode  of  working  .such  minerals  in  the  district 
where  the  same  were  situate.    lb. 


3.  Rolling  Stock. 

Exemption  from  Distress  — "Work."]— A 
locomotive  engine,  which  was  hired  by  a  rail- 
way contractor  from  the  respondents,  was  seised 
under  a  distress  for  rent  due  from  the  contractor 
to  the  appellants.  At  the  time  the  engine  was 
seized  it  was  standing  in  a  shed  which  the  con- 
tractor rented  from  the  appellant,  and  which 
was  connected  by  a  siding  with  the  railway  :— 
Held,  that  the  engine  was  rolling-stock  in  a 
"work"  within  the  meaning  of  s.  3  of  the 
Railway  Rolling  Stock  Protection  Act,  1872,  and 
was  therefore  not  liable  to  distress  for  rent  pay- 
able by  the  tenant  of  the  work.  The  "  work" 
in  b.  3  means  any  establishment  or  place,  used 
for  the  purpose  of  trade  or  manufacture,  which 
is  .connected  with  a  line  of  railway  by  sidings 
along  which  the  rolling  stock  may  be  propelled. 
Easton  Estate  Company  v.  Western  Waggon 
Company,  54  L.  T.  735  ;  50  J.  P.  790— D. 

Execution  against  —  Railway  ancillary  to 
Books.] — The  protection  against  seizure  afforded 
by  the  Railway  Companies  Act,  1867,  sb.  3,  4, 
applies  to  the  railway  plant  of  every  company 
constituted  by  a  statute  for  the  purpose  of  con- 
structing or  working  a  railway,  even  although 
the  railway  is  merely  a  subordinate  and  ancillary 
part  of  the  undertaking  authorised  by  the  statute. 
By  two  local  statutes  a  company  was  authorised 
to  construct  a  wet  dock,  a  lock  forming  an 
entrance  to  the  dock,  and  two  short  railways, 
each  about  half  a  mile  long,  to  connect  the  dock 
with  other  railways.  The  plaintiffs  had  lout 
money  to  the  company  upon  mortgage-deben- 
tures. The  defendants  were  creditors  of  the 
company,  and  having  obtained  judgment,  seized 
in  execution  certain  railway  plant  belonging  to 
it.  The  plaintiffs  having  brought  an  action  for 
an  injunction  to  prevent  the  defendants  from 
realizing  their  execution  : — Held,  that  the  dock 
company  was  a  "  company  "  within  the  Railway 
Companies  Act,  1867,  s.  3,  and  that  the  railway 
plant  belonging  to  it  was  protected  from  seizure 
by  8. 4.  Great  Northern  Railway  v.  Tahomrdi*, 
13  Q.  B.  D.  320  ;  53  L.  J.,  Q.  B.  69 ;  50  L.T.186; 
32  W.  R.  559— C.  A. 


4.  Judgment  Against. 

Exemption  of  Soiling  8took  from 
■See  preceding  case. 


] 


Appointment  of  Receiver  by  Judgment  Creditor 
— Priority.] — A  judgment  creditor  of  a  railway 
company  obtained  an  order  for  a  receiver  and 
manager  under  s.  4  of  the  Railway  Companies 
Act,  1 867.  After  this,  another  judgment  creditor 
applied  for  a  similar  order,  which  was  made 
without  prejudice  to  the  former  order: — Held, 
on  appeal,  that  a  judgment  creditor  gains  no 
priority  by  obtaining  a  receivership  order,  that 
when  a  receivership  order  has  been  made  and  is 
in  force,  another  judgment  creditor  gains  no 
benefit  whatever  by  obtaining  a  similar  order, 
and  that  such  subsequent  order  ought  not  to  he 
made.  The  second  order  was  therefore  dis- 
charged,    Mersey  Railway,  In  rey  37  Ch.  D. 


1549 


RAILWAYS. 


1550 


610;  57  L.  J.,  Ch.  283 ;  58  L.  T.  745  ;  36  W.  R. 
S72-C.  A. 

Railway  ancillary  to  Book.] — A  company 

fanned  by  Act  of  Parliament  for  the  purpose  of 
miking  a  dock,  was  afterwards  authorised,  by 
an  Act  of  Parliament  obtained  by  a  railway 
company,  to  make  a  short  piece  of  railway  over 
its  own  land  connected  with  the  line  of  the  rail- 
way company,  and  to  work  it  for  through  traffic  : 
—Held  (Lopes,  L.J.,  doubting),  that  the  dock 
company  was  a  company  "  constituted  by  Act  of 
Parliament  for  the  purpose  of  making  a  rail- 
way/' and  so  was  a  railway  company  within  the 
meaning  of  the  Railway  Companies  Act,  1867 ; 
that  a  receiver  and  manager  could  therefore  be 
appointed  on  the  application  of  a  judgment 
creditor;  and  that  the  receiver  and  manager 
mnst  be  appointed  of  the  whole  undertaking  of 
the  company,  and  not  merely  of  the  railway 
belonging  to  it.  East  and  West  India  Dock 
Company,  In  re.  38  Ch.  D.  576  ;  57  L.  J.,  Ch. 
1053 ;  69  L.  T.  237  ;  36  W.  R.  849— C.  A. 

Discretion  of  the  Court] — In  exercising 

the  jurisdiction  afforded  by  s.  4  of  the  Railway 
Companies  Act,  1867,  relative  to  the  appointment 
of  a  receiver  and  manager  of  a  railway  company 
at  the  instance  of  judgment  creditors,  the  court 
whilst  not  assisting  in  anything  of  a  speculative 
nature  with  regard  to  the  future,  should  take  a 
fair  broad   view  of    the  present  position  and 
exigencies  of   the  company,  and  act   for  the 
general  benefit  of  all  the  creditors.    But  in  exer- 
cising such  jurisdiction,  the  court  is  not  to  con- 
aider  itself  fettered  by  any  contract  or  arrange- 
ment which  may  have  previously  been  entered 
into  between   the  railway  company  and   any 
person,  although  in  the  exercise  of  its  discretion 
the  court  will  have  regard  thereto.    An  applica- 
tion was  made  by  first  debenture-holders  of  a 
railway  company  to  discharge  an  order  made  in 
chambers,    appointing    F.    one   of    the    joint 
managers  of  the  company,  with  a  salary.    The 
first  debenture-holders  sought  to  discharge  the 
order  on  the  ground  that  the  company  was  not 
financially  in   a    position   to  incur  the   extra 
expense,  which  they  alleged  was  unnecessary, 
and  that  their  interests — their  dividends  being 
in  arrear— ought  to  be  considered  before  the 
extra  expense  was  incurred  : — Held,  that  the  first 
debenture-holders,    though    creditors,    had    no 
voice  in  the  management  of  the  company  while 
it  was  a  going  concern,  notwithstanding  that 
when  their  interest  was  in  arrear  they  had  a 
statutory  right  to  the  appointment  of  a  receiver ; 
and,  therefore,  that  the  first  debenture-holders 
had  no  right  to  dictate  what  manager  should  be 
appointed,  nor  what  salary  he  should  receive ; 
and  that,  under  the  circumstances,  their  applica- 
tion   moat  be  refused.     Hull,  Barnsley,  and 
West  Riding  Railway,  In  re,  57  L.  T.  82— 
Chitty,  J. 

Bahama  of  Arrangement  —  Debenture  Stock 
issued  under  Scheme  —  Working  Expenses  — 
As— at — Priority.]— The  E.  Co.  recovered  judg- 
ment against  the  N.  &  K.  Railway  for  the  sum  of 
2£8H.  for  rails  supplied  to  make  the  line.  The  N. 
k  K.  Railway,  being  unable  to  meet  their  engage- 
ments, and  indebted  inter  alia  upon  mortgages 
prior  to  the  judgment  to  the  extent  of  37,900/., 
filed  a  scheme  of  arrangement  in  the  English 
Court  of  Chancery,  and  obtained  power  to  issue 


debenture  stock  to  the  amount  of  70,0002.  to 
pay  off  their  debts,  viz.,  20,0002.  A.  stock  and 
50,0002.  B.  stock,  which  were  declared  by  the 
scheme  to  be  respectively  first  and  second 
charges  on  the  undertaking  of  the  N.  &  E.  Rail- 
way. The  E.  Co.  appeared  on  the  settlement  of 
the  scheme,  and  had  it  altered  (article  3)  so  as  to 
provide  for  payment  of  one-third  of  their  debt 
out  of  the  A.  stock,  they  undertaking  not  to 
proceed  for  the  balance  until  one  month  after 
the  completion  of  the  line,  or  six  months  after 
the  confirmation  of  the  scheme ;  and  by  the 
order  confirming  the  scheme  it  was  declared 
that  it  did  not  prejudice  outside  creditors,  save 
so  far  as  the  rights  of  judgment  creditors  were 
affected  by  article  3  so  amended.  The  debenture 
stock  was  then  issued.  The  E.  Co.,  not  having 
been  paid,  filed  a  bill  to  compel  payment,  and 
the  suit  was  compromised.  P.,  another  judgment 
creditor  of  the  railway,  commenced  proceed- 
ings for  a  receiver.  Upon  a  reference  to  settle 
priorities : — Held  (1),  that  the  claim  of  the  E. 
Co.  came  under  the  head  of  "debts"  of  the 
company,  and  not  under  the  head  of  "  working 
expenses"  or  "other  proper  outgoings"  within 
8. 4  of  the  Railway  Companies  Act,  1867  ;  and  (2) 
that  the  effect  of  the  E.  Co.'s  assent  to  the  scheme 
implied  from  their  intervention,  was  to  postpone 
their  claim  to  the  A.  and  B.  debenture  stocks. 
The  claimant  company  having  appealed,  the 
court  were  equally  divided,  and  the  judgment 
therefore  stood.  Ndvan  and  Kingscowrt  Rail- 
way, In  re,  Price,  Ex  parte,  17  L.  R.,  Ir.  398 — 
C.A. 

Surplus  Lands — Debenture  Stock — Priority.] 
—See  Hull,  Barnsley,  and  West  Riding  Rail' 
way,  In  re,  ante,  col.  1541. 


5.  Offences  against. 

False  Account  of  Goods— 8igning  sTote.] — F., 
a  farmer,  was  in  the  habit  of  sending  milk  by 
railway  in  tankards  with  the  quantity  stamped 
outside.  One  day  F.'s  daughter  wrote  F.'sname 
on  the  consignment  note,  stating  that  there 
were  eighteen  gallons,  whereas  there  were 
twenty-one  gallons,  and  only  eighteen  were 
paid  for.  F.  had  told  his  servants  not  to  fill  up 
the  full  quantity  in  the  note,  because  the  toll 
was  too  high,  but  there  was  no  evidence  that  he 
knew  of  this  note  : — Held,  that  F.  could  not  be 
convicted  under  s.  99  of  the  Railways  Clauses  Act, 
1845,  as  he  had  not  signed  the  consignment  note. 
Frith  v.  Simpson,  48  J.  P.  150— D. 

Trespassing  on  Railway — Public  Right  of 
Way  before  making  Bailway — Jurisdiction.] — 
The  appellant  was  convicted  by  justices  in  petty 
sessions — (1)  under  the  38th  section  of  45  &  46 
Vict.  c.  ccxiv.,  for  having  unlawfully  trespassed 
on  a  railway  in  such  a  manner  as  to  expose  him- 
self to  danger,  and  (2)  under  section  23  of  the 
Regulation  of  Railways  Act,  1868,  for  having 
been  unlawfully  on  the  railway  after  receiving 
warning  not  to  go  or  pass  thereon.  There  was, 
prior  to  the  making  of  the  railway,  and  prior  to 
the  acts  of  Parliament  authorising  the  same,  a 

Eublic  right  of  way  for  persons  on  foot  over  the 
ind  now  occupied  by  tne  railway  at  the  place 
where  the  appellant  crossed,  and  the  appellant 
went  upon  and  crossed  the  railway,  in  the  asser- 
tion of  the  right  of  way  which  formerly  existed 


1551 


RAILWAYS. 


1662 


and  believing  that  he  was  entitled  to  do  so  by 
virtue  thereof: — Held,  that  the  conviction  on 
both  summonses  was  wrong — (1)  because  the 
claim  of  the  right  of  way  set  up  by  the  appel- 
lant ousted  the  jurisdiction  of  the  justices  to 
determine  the  case ;  and  (2)  because  there  were 
no  provisions  in  the  act  of  Parliament  extin- 
guishing the  right  of  way,  which  was  conse- 
2uently  still  in  existence.  Cole  v.  Mile*,  67 
,.  J.,  M.  0.  132  ;  60  L.  T.  145  ;  36  W.  R.  784  ; 
63  J.  P.  228— D. 


6.  Arbitration  between  Railways. 

Agreement  "confirmed  and  made  binding" 
by,  and  scheduled  to,  Private  Act  ^Jurisdiction 
of  Bail  way  Commissioners.] — An  agreement  was 
entered  into  between  two  railway  companies, 
one  of  the  clauses  of  which  provided  that  all 
questions  in  difference  arising  out  of  the  agreement 
should  be  determined  by  arbitration  in  manner 
provided  by  the  Railway  Companies  Arbitra- 
tion Act,  1859.  A  private  act  of  Parliament 
was  subsequently  passed,  in  which  the  agree- 
ment was  set  out  verbatim  as  a  schedule,  and  it 
was  provided  by  the  act  that  the  scheduled 
agreement  should  be  "confirmed and  made  bind- 
ing "  upon  the  parties  thereto.  Differences  hav- 
ing arisen,  one  of  the  companies  applied  to  the 
railway  commissioners  to  determine  the  ques- 
tions in  dispute  under  the  provisions  of  the 
Regulation  of  Railways  Act,  1873.  The  other 
company  having  obtained  a  rule  nisi  for  a  pro- 
hibition on  the  ground  that  without  their  consent 
the  railway  commissioners  had  no  jurisdiction 
to  entertain  the  application : — Held,  that  the 
right  to  refer  differences  to  arbitration  was 
derived  from  the  agreement  itself  ;  that  the 
difference  was  not  "required  or  authorised  to 
be  referred  to  arbitration  under  the  provisions 
of  any  general  or  special  act "  within  the  mean- 
ing of  s.  8  of  the  Regulation  of  Railways  Act, 
1873,  and  that  the  railway  commissioners  had 
no  jurisdiction  to  undertake  the  arbitration. 
Reg.  v.  Midland  Railway  or  Great  Western 
Railway,  19  Q.  B.  D.  540  ;  66  L.  J.,  Q.  B.  685  ; 
67  L.  T.  619  ;  36  W.  R.  270 ;  61  J.  P.  660  ;  5 
Nev.  k  Mac.  267— D. 

Agreement  to  refer  Disputes— Action  in  High 
Court — Jurisdiction — Time   for  Application.] — 

Where  there  is  an  agreement  between  railway 
companies  to  refer  their  disputes  to  arbitration 
under  the  provisions  of  the  Railway  Companies 
Arbitration  Act,  1859,  the  true  effect  of  ss.  4  and 
26  of  that  act  is  to  make  it  obligatory  upon  the 
court,  if  either  of  the  companies  insists  on  it,  to 
make  an  order  to  refer  the  disputes  in  accord- 
ance with  the  agreement ;  but  these  sections  do 
not  deprive  the  court  of  jurisdiction  to  deal  with 
the  matter  and  adjudicate  upon  any  dispute  of 
the  companies  if  neither  of  the  companies  insist 
on  their  right  to  have  the  dispute  referred  to 
arbitration  under  the  agreement.  London,  Chat- 
ham  and  Dover  Railway  v.  South-Eastern  Rail- 
way, 40  Ch.  D.  100  ;  58  L.  J.,  Ch.  76  ;  60  L.  T. 
370  ;  37  W.  R.  65— C.  A. 

Where  an  action  has  been  brought  by  one 
railway  company  against  another  in  respect  of 
a  dispute  between  them,  and  the  court  has  tried 
and  adjudicated  on  the  matter  without  either  of 
the  companies  insisting  on  the  point  that  the 
matter  ought  to   be   referred   to   arbitration, 


though  the  point  had  been  raised  by  one 
of  the  companies  in  their  defence,  it  is  too 
late  for  the  unsuccessful  company  to  raise,  at 
the  hearing  of  an  appeal,  the  point  that  the 
dispute  should  be  referred  to  arbitration  under 
the  provisions  of  the  Railway  Companies  Arbi- 
tration Act,  1859.    lb. 

i 

Traffic  Facilities— Through  Rate* -"Coo, 
neeted  with."]— The  special  act  of  the  C.  W. 
Railway  provided  that  the  L.  &  N.  W.  Railway, 
the  G.  W.  Railway  and  other  companies  (seven 
in  all)  should  afford  all  proper  and  sufficient 
facilities,  including  through  rates,  to  traffic  pass- 
ing to,  from,  or  over  the  C.  W.  Railway,  from  or 
to  any  railway  of  the  seven  companies,  or  any      j 
railway  connected  with  them,  and  that  the  terms 
and  conditions,  pecuniary  or  otherwise,  on  which 
the  traffic  facilities  should  be  respectively  af- 
forded, and  the  amount  and  apportionment  of 
the  through  rates  should,  failing  agreement,  be 
determined  by  arbitration  in  manner  provided 
by  the  Regulation  of  Railways  Act,  1873 :— Held, 
that  such  special  act  requires  facilities  to  be 
afforded  to  all  traffic  passing  over  the  C.  W. 
Railway  which  either  comes  from  or  is  destined 
to  some  point  upon  and  which  during  its  whole 
course  passes  uninterruptedly  over  railways  be- 
longing to  one  or  more  of  the  seven  companies, 
or  connected  for  purposes   of  management  or 
working  with  one  or  more  of  the  said  seveo 
companies ;    that  the  said  special  act  does  not 
grant  through  rates  absolutely ;  that  the  suffi- 
ciency of  through  rates  existing  at  any  time  and 
the  propriety  of  granting  others  are  among  the 
matters  which,  failing  agreement,  are  required 
by  the  special  act  to  be  referred  to  arbitration ; 
and  that  the  words  "  connected  with,"  in  the 
said  special  act,  mean  connected  for  the  pur- 
poses of  management  or  working,  and  not  merely 
physically   connected.      Great  Western  Jk«- 
way  v.  Central  Wales  Railway,  5  Nev.  ft  Mac 
1— D. 

7.  Railway  Commissiohees. 

Jurisdiction — Undue  Preference.]— The  duties 
imposed  on  railway  companies  by  the  Railway 
and  Canal  Traffic  Act,  1854,  s.  2,  are  confined  to 
traffic;  therefore,  the  Railway  Coinmissioners 
have  no  jurisdiction  to  determine  complaints 
against  a  railway  and  dock  company  tor 
inequality  of  dues  levied  in  respect  of  a  dock 
forming  a  distinct  part  of  their  undertaking, 
although  such  company  be  also  owners  of  other 
docks  not  distinct  from  but  connected  with  their 
railway.  East  and  West  India  Dock  C<mp**f 
v.  Shaw,  Savill  Jjr  Company,  39  Ch.  D.  524 ;  57 
L.  J.,  Ch.  1038  ;  60  L.  1  142  ;  6  Nev.  fcMactf 
— Chitty,  J. 

Arbitration.]—^  Reg.  v.  Midland  B& 

way,  supra. 

Power  to  state  Special  Case.]— On  the  hearing 
of  an  application  made  under  the  Regulation  of 
Railways  Act,  1873  (36  &  37  Vict,  c  48),  a  15, 
the  Railway  Commissioners  have  power  to  state 
a  special  case  for  the  opinion  of  the  High  Court 
Hall  v.  London,  Brighton,  and  South  Osast 
Railway,  15  Q.  B.  D.  505  ;  53  L.  T.  345 ;  6  Nev.  ' 
&  Mac.  28— D. 

Appeal  to  Court  of  Appeal  on  Case  stated.]— 
There  is  no  appeal  to  the  Court  of  Appeal  from 


1558 


RAILWAYS. 


1554 


the  decision  of  a  divisional  court  upon  a  case 
stated  by  the  Railway  Commissioners  under 
s.  26  of  the  Regulation  of  Railways  Act,  1873, 
even  though  leave  to  appeal  has  been  given. 
Sect  45  of  the  Judicature  Act,  1873,  does  not 
apply  to  appeals  from  the  Railway  Commis- 
sioners. HcUl  v.  London,  Brighton,  and  South 
Coast  Railway,  17  Q.  B.  D.  230  ;  55  L.  J.,  Q.  B. 
328;  64 L.  T.  713;34  W.  B.  658;  5  Nev.  &  Mac. 
28-0.  A. 


RAPE. 


See  CRIMINAL  LAW. 


BATES. 

Poor  Bates.]— See  Poob  Law. 

China  Bates.]— See  Ecclesiastical  Law. 

Water  Bates.]—  See  Water. 

County  Bates.]— See  County. 


by  Municipal  Corporation.]-—^  Cob- 

FORATION. 

Highway  Bates.]— See  Way. 

Li  Metropolis.]— See  Metropolis. 

Under  Public  Health  Act]— See  Health. 


RATIFICATION. 

See  CONTRACT,  II. 


RECEIVER. 

Iqnitable  Execution.]— So?  Execution. 

Under  Bailway  Companies  Act,  1867.]— See 
ante,  cols.  1548, 1549. 

In  other  Cases.]— See  Practice,  III.  A.  8, 1. 


RECOGNIZANCE. 

See  JUSTICE  OF  THE  PEACE  (PRACTICE). 


RECORDER. 

See  CORPORATION. 


RECOVERY    OP    LAND. 

See  reff.,  ante,  col.  1496. 


RECTIFICATION. 

Of  Begister.]— See  Company,  VI.  7. 
Of  Deeds.]— See  Deed  and  Bond,  1. 4. 


RECTOR. 

See  ECCLE8IA8TICAL  LAW. 


REFERENCE. 

See  ARBITRATION. 


REFORMATORIES. 


See  SCHOOLS. 


REFRESHERS. 

See  COSTS,  VI.  1,  b.  L 


REGISTRATION. 

Of  Deeds  relating  to  Land.]— See  Deeds. 
Of  Bills  of  Bale.]— See  Bill  or  Sale. 
Of  Patents.]— See  Patent. 
Of  Shares.]— See  Company. 
Of  Trade-marks.]— See  Trade. 
Of  Voters.]— &0  Election  Law. 


1555 


RENT-CHARGE. 


1556 


Of  Copyright]— &£  Copyright. 

Vacating  Registration  of  Lit  Pendens.]— See 
Lis  Pendens. 

Of  Judgments.]— See  Judgment. 


|  action  against  the  co-owners  for  contribution. 
Chrirtie  v.  Barker,  53  L.  J.,  Q.  B.  637-C.  A. 


Beleaae  —  Contribution.]  —  G.  died  m 


RELEASE. 


See  DEED. 


REMOVAL. 

Of  Paupers.]— See  Pooh  Law. 
From  Offices.]—  See  Quo  Warranto. 


1875,  having  devised  copyhold  land  to  W.  G., 
i  charged  with  an  annuity  to  the  plaintiff.  On 
the  24th  of  July,  1876,  W.  G.  contracted  to  sell 
part  of  the  land  to  the  defendant,  and  on  the 
3l8t  of  July,  1876,  W.  G.  surrendered  the  residue 
of  the  land  in  fee  to  W.,  and  the  plaintiff  by 
deed  released  the  land  surrendered  to  W.  from 
the  annuity.  In  1883  the  plaintiff  sued  the 
defendant  for  arrears  of  the  annuity:— Held, 
that  under  s.  10  of  Lord  St  Leonards'  Act,  the 
defendant  was  liable  to  pay  such  a  proportion  of 
the  rent-charge  as  was  represented  by  hu  part 
of  the  land  with  regard  to  the  whole  land  origi- 
nally charged.  Booth  v.  Smith,  14  Q.  E  B. 
318;  54  L.  J.,  Q.  B.  119  ;  51  L.  T.  742;  8S 
W.  R.  142— C.  A. 

Tithe.] — See  Ecclesiastical  Law. 


RENT. 


See  LANDLORD  AND  TENANT. 


rent-charge. 

Eecovery  of  Arrears — Assignment  of  Part  of 
Lands.] — An  action  for  debt  lies  for  the  recovery 
of  arrears  of  an  annuity  charged  upon  land 
against  the  assignee  of  part  of  such  land  ;  and 
it  makes  no  difference  whether  the  annuity  was 
created  by  deed  or  will.  Booth  v.  Smith,  51 
L.  T.  395  j  47  J.  P.  759— D. 

Action  of  Debt— Liability  of  Owner  of 

Part  of  Lands  charged.] — The  defendant  was 
the  owner  and  occupier  of  a  portion  of  certain 
lands  in  the  parish  of  P.,  which,  by  a  private  act, 
were  charged  with  the  payment  to  the  vicar  of 
an  annual  sum  of  270Z.,  in  lieu  of  tithes.  The  act 
provided  that,  if  the  annual  rents  were  in  arrear, 
the  vicar  was  to  have  such  and  the  same  powers 
and  remedies  as  by  the  laws  and  statutes  of  the 
realm  are  provided  for  the  recovery  of  rent  in 
arrear ;  and  also,  that  if  no  sufficient  distress 
were  found  on  the  premises,  the  vicar  might 
enter  and  take  possession  of  the  same  until  the 
arrears  were  satisfied.  Four  years*  arrears  of  the 
annual  rent  accrued  in  respect  of  the  whole  of 
the  lands  charged,  during  the  whole  of  which 
period  the  defendant  was  the  owner  and  occupier 
of  a  portion  only  of  such  lands  : — Held,  that  the 
vicar  might  maintain  an  action  of  debt  against 
the  defendant  for  the  whole  amount  in  arrear  ; 
the  remedy  by  real  action,  which  was  a  higher 
remedy  than  the  action  of  debt,  having  been 
abolished  by  3  k  4  Will.  4,  c.  27,  s.  36  :— Held, 
further,  that  the  defendant  had  his  remedy  in  an 


REPRESENTATIONS. 

See  FRAUD  AND    MISREPRESENTATION 

Amounting  to    Contract.]  —  See  Martin  f. 
Spicer,  ante,  coL  1075. 

Liability  of  Principal  for  Acts  of  Agent]-** 
Principal  and  Agent,  I.  2,  b. 


REPUTED    OWNERSHIP. 

S&  BANKRUPTCY,  VIII.  1,  b. 


REQUISITIONS. 

See  VENDOR  AND   PURCHASER. 


RES    JUDICATA. 

See  ESTOPPEL. 


RESTITUTION. 

Of  Property.]— See  CuixnrAX  Law,  H  1& 

Of  Conjugal  Rights.]  —  See  Husband  AN© 
Wipe,  II. 


r 


1557 


REVENUE— Stamps. 


1558 


RESTRAINT    OF    TRADE. 

Contract*  as  to.]— See  Contract,  III.  3,  g. 


RETURNING    OFFICER. 

See  CORPORATION— ELECTION  LAW. 


REVENUE. 

I.  Stamps,  1557. 
IL  Customs  and  Excise,  1560. 

III.  Taxes  and  Duties. 

1.  Bodies  Corporate  and  Unincorporated 

1562. 

2.  Property  Tax,  1564. 

3.  Inhabited  House  Duty,  1565. 

4.  Income  Tax, 

a.  Property  and  Persons  Liable,  1566. 

b.  Assessment  and  Deductions,  1570. 

c.  Repayment  of  Amount  overpaid, 

1572. 

5.  Succession  Duty,  1573. 

6.  Probate  Duty,  1576. 

7.  Legacy  Duty,  1678. 

I.    STAMPS. 

Admieeibility  of  Unstamped  Document  for 
My  Purpose.  J  —  An  unstamped  document  em- 
bodying an  agreement,  not  falling  within  the 
exceptions  specified  in  33  k  34  Vict.  c.  97,  is 
inadmissible  in  evidence  in  civil  proceedings  for 
any  purpose  whatever.  Interleaf  Publishing 
Company  v.  Phillips,  1  C.  &  E.  315— Williams,  J. 

Charter-party  executed  Abroad  — Time.]— A 
charter-party  executed  entirely  abroad,  and 
stamped  within  two  months  after  it  has  been  re- 
ceived in  this  country,  can  be  received  in  evi- 
dence, since  it  falls  within  the  provisions  of  33 
k  34  Vict.  c.  97,  s.  15,  and  not  of  ss.  67  and  68 
of  that  act.  The  Belfort,  9  P.  D.  215 ;  53  L.  J., 
P.  88 ;  51  L.  T.  271  ;  33  W.  R.  171 ;  5  Asp.  M. 
C.  291— D. 

101  of  Exchange  drawn  Abroad  payable  in 
England.] — Section  51,  sub-s.  2,  of  the  Stamp 
Act,  1870,  includes  bills  payable  on  demand. 
Therefore  a  bill  drawn  in  France  on  the  Bank 
of  England  was  properly  stamped  by  the  holder 
affixing  to  it  and  cancelling  a  penny  adhesive 
stamp.  Boyse,  In  re,  Crofton  v.  Crofton,  33 
Cb,  D.  612  ;  56  L.  J.,  Ch.  135  ;  55  L.  T.  391  ;  35 
W.  R.  247— North,  J. 

BUI  of  Exchange  or  Assignment  of  Money.] 
— CC.  k  Co.  contracted  with  the  defendants  to 


supply  them  with  timber,  and  the  defendants 
were  indebted  to  O'C.  k  Co.  on  the  contract,  in 
the  sum  of  460Z.  O'C.  k  Co.,  while  the  defen- 
dants were  so  indebted  to  them,  addressed  a 
letter  to  the  defendants  as  follows :  —  "  We 
hereby  authorise  and  request  you  to  pay  to  A. 
the  sum  of  395/.  10*.  due  from  you  to  us  for 
goods  sold  and  delivered  by  us  to  you,  and  the 
receipt  of  A.  will  be  a  good  discharge."  This 
instrument  was  duly  stamped  as  an  assignment, 
but  was  not  stamped  with  an  impressed  stamp 
as  a  bill  of  exchange.  In  an  action  on  the  in- 
strument, the  defendant  in  his  defence  denied 
its  validity,  on  the  ground  that  it  was  a  bill  of 
exchange  within  the  Stamp  Act  of  1870,  and  had 
not  been  stamped  as  such  Defore  its  execution  : 
— Held,  that  the  defence  was  bad.  Adams  v. 
Morgan,  14  L.  R.,  Ir.  140— C.  A. 


Promissory  Note  or  Agreement  to  pay  Money.] 

— At  the  trial  of  an  action  to  recover  money  alleged 
to  be  due  under  an  agreement,  the  plaintiff  put  in 
evidence  (inter  alia)  the  following  document : — 
"  I,  J.  Dawe,  promise  to  pay  J.  Yeo  on  his  sign- 
ing a  lease  ....  the  sum  of  150/. — J.  Dawe." 
The  document,  which  bore  a  penny  stamp,  was 
stamped  at  the  trial  as  an  agreement.  The 
plaintiff  alleged  that  it  embodied  the  result  of 
previous  negotiations  in  reference  to  a  lease. 
The  defendant  alleged  that  the  document  was  a 
promissory  note  within  s.  49  of  the  Stamp  Act, 
1870.  A  verdict  was  given  for  the  plaintiff,  and 
it  being  doubtful  whether  there  was  evidence  of 
the  agreement,  he  was  left  to  move  for  judg- 
ment : — Held  (diss.  Bowen,  L.  J.),  that  the  docu- 
ment was  not  a  promissory  note  within  the 
meaning  of  s.  49  of  the  Stamp  Act,  1870,  inas- 
much as  that  act  does  not  apply  to  a  document 
which  is  neither  given  nor  accepted  as  a  pro- 
missory note,  and  is  not  in  fact  such  a  note. 
Yeo  v.  Dawe,  53  L.  T.  125  ;  83  W.  R.  739— C.  A. 

Per  Bowen,  L  J.  The  section  applies  to  every 
document  which  substantially  comprises  an 
effective  promise  to  pay.    lb. 

In  order  that  a  document  may  be  a  promissory 
note  within  s.  49  of  the  Stamp  Act,  1870,  it  must 
substantially  contain  a  promise  to  pay  a  definite 
sum  of  money  and  nothing  more.  A  document 
containing  a  promise  to  pay  money  as  part  of  a 
contract  containing  other  stipulations  would  not 
be  a  promissory  note  within  the  act.  By  an 
instrument,  described  as  a  policy  of  insurance, 
after  reciting  that  E.  was  desirous  of  being 
insured  with  the  appellant  corporation,  and  that 
there  had  been  paid  to  the  corporation  the  sum 
of  97.  17*.  id,,  being  the  agreed  premium  for 
such  assurance,  it  was  witnessed  that  the  cor- 
poration did  thereby  guarantee  to  the  assured 
payment  of  the  sum  of  100Z.  on  May  18,  1967  ; 
provided  that,  if  the  assured  should  be  desirous 
at  any  time  of  surrendering  the  policy,  the 
corporation  would  allow  to  him  the  surrender 
value  thereof  as  on  May  18  last  preceding  the 
date  of  bis  notice  to  surrender,  such  value  to  be 
fixed  according  to  the  tables  of  the  corporation 
for  the  time  being  in  force  with  reference  to 
surrenders : — Held,  that  this  instrument  was 
liable  to  stamp  duty  as  an  agreement,  and  not 
as  a  promissory  note  within  s.  49  of  the  Stamp 
Act,  1870.  Mortgage  Insurance  Corporation  v. 
Inland  Revenue  Commissioners,  21  Q.  B.  D. 
352  ;  57  L.  J.,  Q.  B.  630 ;  36  W.  R.  833— C.  A. 
Affirming  58  L.  T.  766— D. 


1559 


REVENUE— Customs  and  Excise. 


1560 


Agreement  or  Payment  under  Policy  of  In- 
surance.] —  A  policy  of  assurance  upon  mort- 
gage, securing  payment  of  principal  and  interest 
to  the  mortgagee,  the  assured,  is  chargeable  with 
the  duty  of  6d.  as  an  agreement ;  and  does  not 
fall  within  the  second  clause  of  the  schedule  to 
the  act  as  to  policies  of  insurance,  which  assesses 
the  duty  of  Id.  for  any  "  payment  agreed  to  be 

made by  way  of  indemnity  against  loss 

or  damage  of  or  to  any  property.1'  Mortgage 
Insurance  Corporation  v.  Inland  Revenue 
Commissioners,  67  L.  J.,  Q.  B.  174 ;  58  L.  T. 
769— D. 

Conveyance  on  Sale— Compulsory  8ale — Com- 
pensation for  Loss  of  Trade.]— The  schedule  of 
the  Stamp  Act  of  1870  (33  &  34  Vict.  c.  97), 
prescribes  an  ad  valorem  duty  on  every  '*  con- 
veyance or  transfer  on  Bale  of  any  property." 
By  s.  70  the  term  "  conveyance  on  sale "  in- 
cludes every  instrument  whereby  any  property 
upon  the  sale  thereof  is  transferred  to  or  vested 
in  the  purchaser.  By  deed  of  conveyance  8.  & 
Co.  conveyed  business  premises  to  a  railway 
company.  The  deed  stated  that  the  jury  in  a 
compensation  trial  under  the  Lands  Clauses 
Consolidation  (Scotland)  Act,  1845,  had  found 
that  S.  &  Co.  were  entitled  to  28,5862.  2s.  Id.,  as 
the  value  of  the  premises  which  had  been  taken 
by  the  company  under  the  powers  of  their  special 
act ;  14,5722. 16*.  3d.  for  the  value  of  the  build- 
ings, &c.,  upon  the  premises,  and  9,4992.  8s.  3d. 
as  compensation  for  loss  of  business,  and  that 
the  company  had  paid  the  three  sums  so  assessed 
to  S.  &  Co. :— Held,  that  the  9,4992.  8*.  3d.  al- 
lowed by  the  jury  as  compensation  for  loss  of 
business  was  part  of  the  "  consideration  for  the 
sale  "  of  the  premises,  and  liable  to  an  ad  valorem 
duty  accordingly.  Inland  Revenue  Commis- 
sioners v.  Glasgow  and  South  Western  Railway, 
12  App.  Cas.  315  ;  56  L.  J.,  P.  C.  82  ;  57  L.  T. 
570  ;  36  W.  R.  241— H.  L.  (8c.). 

Revocable  Agreement  to  grant  Permission  for 
Erection  of  Jetty.] — By  an  instrument  not  under 
seal  the  conservators  of  the  Thames  agreed  to 
grant  permission  during  their  pleasure  to  the 
appellants  to  construct  and  retain  a  jetty  in  con- 
sideration of  an  annual  payment  yearly  so  long 
as  the  jetty  was  allowed  by  the  conservators  to 
remain : — Held,  that  the  instrument  was  not 
chargeable  with  stamp  duty  under  33  &  34  Vict. 
c.  97  (the  Stamp  Act,  1870),  either  as  a  "  con- 
veyance on  sale  "  within  s.  70,  or  as  an  instru- 
ment whereby  any  property  was  transferred  to 
or  vested  in  any  person,  within  s.  78,  or  as  a 
"  lease  or  tack,"  or  "  bond,  covenant,  or  instru- 
ment of  any  kind  whatsoever,"  within  the 
schedule,  but  only  as  an  "  agreement."  Thames 
Conservators  v.  Inland  Revenue  Commissioners, 
18  Q.  B.  D.  279  ;  66  L.  J.,  Q.  B.  181 ;  56  L.  T. 
198  ;  35  W.  R.  274— D. 

Voluntary  Settlement— Beservation  of  Life 
Interest — AoconnU.]— By  deed  dated  the  12th 
of  July,  1883,  the  settlor,  in  pursuance  of  a 
power  given  by  articles  of  partnership,  ap- 
pointed and  transferred  to  his  sons  his  shares  in 
the  partnership  business,  as  from  the  1st  of 
October,  1883,  or  as  from  the  settlor's  death, 
which  should  first  happen,  provided  that  such 
appointments  were  conditional  upon  the  execu- 
tion by  the  sons  before  the  1st  of  October,  1883, 
of  a  deed  covenanting  to  pay  to  the  settlor, 


from  the  1st  of  October,  1883,  during  his  life, 
interest  at  4  per  cent,  per  annum  on  the  value 
of  the  shares  appointed  as  aforesaid,  and  to  pay, 
out  of  the  profits,  certain  annuities  to  other 
persons.  The  sons  executed  this  last-mentioned 
deed  on  the  12th  of  July,  1883.  The  settlor  died 
on  the  19th  of  July,  1883 :— Held,  that  the 
transfer  of  the  shares  was  a  voluntary  settle- 
ment within  the  meaning  of  the  Customs  and 
Inland  Revenue  Act,  1881  (44  &  45  Vict  c  12), 
s.  38,  sub-s.  2,  and  that  by  it  an  interest  for  life 
in  the  property  transferred  was  reserved  to  the 
settlor,  and  therefore  duty  was  •  payable  under 
that  section  on  the  amount  of  the  shares  bo 
transferred.  Grossman  v.  Reg.,  18  Q.  B.  D.  256 ; 
66  L.  J.,  Q.  B.  241 ;  55  L.  T.  848 ;  35  W.  R.  303 
— D. 

By  a  voluntary  settlement  the  settlor  assigned 
to  trustees  a  sum  of  money,  with  interest,  upon 
certain  trusts,  and  subject  to  certain  powers, 
provisoes,  agreements  and  declarations,  and  it 
was  declared  that  the  trustees  should  apply  the 
income  for  the  benefit  of  the  settlor  and  his 
wife,  and  children,  or,  at  their  discretion,  for  the 
benefit  of  one  or  more  of  such  persons  to  the 
exclusion  of  the  others,  and  after  the  settlor's 
death  the  money  was  to  be  held  subject  to  trusts 
in  favour  of  his  widow  and  children :— Held, 
that,  notwithstanding  the  power  conferred  upon 
the  trustees  of  depriving  the  settlor  of  the 
benefit  of  the  settled  property  at  their  discretion, 
an  interest  in  such  property  for  life  was 
reserved  to  the  settlor,  within  the  meaning  of 
s.  38,  sub-s.  2  (c),  of  the  Customs  and  Inland 
Revenue  Act,  1881,  and  therefore  on  his  death 
duty  was  payable.  Attorney-  General  v.2foyt«w^ 
19  Q.  B.  D.  326  ;  56  L.  J.,  Q.  B.  572 ;  57  L.  T. 
271  ;  35  W.  R.  772— D. 


II.    CUSTOMS  AND  EXCISE. 

Excise  Licence  —  Retail  Dealer-Wine  id 
Spirit  Merchant's  Traveller.]— A  traveller  for  a 
fully-licensed  firm  of  wine  and  spirit  merchants 
at  B.  occupied  an  office  and  premises  at  C,  when 
he  resided,  and  where  amongst  other  placeshe 
solicited  and  obtained  orders  which  he  to*™*'™* 
to  his  employers  at  B.,  who  delivered  the  goods 
so  ordered  direct  to  the  purchaser.  The  firm 
neither  rented  nor  occupied  any  premises  at  all 
at  0.,  nor  did  they  store  goods  upon  their  tram- 
ler's  premises.  Upon  information  being  exhibited 
by  an  inland  revenue  officer  against  the  traveller 
under  s.  26  of  6  Geo.  4,  c  81  and  s.  17  of  » 
&  31  Vict.  c.  90,  charging  him  with  taking 
an  order  for  spirits  at  his  office  at  C.  without 
having  in  force  a  proper  licence  authorising  bja 
so  to  do,  it  was  held,  that  he  was  a  bona  fide 
traveller  taking  orders  for  his  employers  who 
were  duly  licensed  to  sell  spirits,  &c,  and  there- 
fore not  liable  to  take  out  a  licence.  Siwhierj 
v.  Spencer,  65  L.  J.,  M.  C.  141  ;  51  J.  P.  1M- 
D. 

"  Sweets  "   Licence—"  Foreign  Vina" 

Licence— "Best  Pale  8herry,  British."]-6" 
the  respondent,  was  the  holder  of  a  ^cenCC^? 
retail  sweets  and  made  wines,  but  he  was  no* 
licensed  for  the  sale  of  foreign  wine.  The  appel- 
lant, an  officer  of  Inland  Revenue,  visited  B.s 
shop,  and  asked  for  a  bottle  of  the  best  sherry, 
and  was  supplied  with  a  bottle  which  was 
labelled  "  Best  Pale  Sherry,  British,"  for  which 


1561 


EEVENUE— Taxes  and  Duties. 


1562 


he  paid  2s.  The  cork  of  the  bottle  was  sealed 
and  bore  upon  the  seal  the  word  "  Sherry."  B. 
was  summoned,  under  b.  19  of  23  Vict.  c.  27,  for 
"selling  foreign  wine  by  retail  without  a  proper 
licence."  The  justices  dismissed  the  information  : 
—Held,  that  B.  had  committed  the  offence,  under 
s.  19  of  the  Act,  of  selling  "  foreign  wine  by  retail 
without  a  proper  licence,"  because  the  "Best 
Pale  Sherry  "  is  a  foreign  wine,  and  that  character 
is  not  taken  away  from  it  by  putting  the  word 
"British"  underneath  it  Richards  v.  Bank*, 
58  L.  T.  634  ;  52  J.  P.  23— D. 

Dilution  of  Beer  by  Publican— Mixing  Beers 
•f  different  Strengths.]— By  s.  8,  sub-s.  2,  of 
the  Customs  and  Inland.  Bevenue  Act,  1885,  "  a 
dealer  in  or  retailer  of  beer  shall  not  adulterate 
Or  dilute  beer,  or  add  anything  thereto,  except 
finings  for  the  purpose  of  clarification/'  The 
appellant,  a  publican,  had  in  his  cellar  a  cask  of 
beer  supplied  by  a  firm  of  brewers,  and  also  a 
quantity  of  small  beer  of  much  less  strength. 
He  drew  off  a  certain  quantity  from  the  cask  of 
stronger  beer,  and  filled  it  up  with  small  beer, 
adding  some  finings  for  clarification ;  the  result, 
as  tested  by  the  quantity  of  proof  spirit  in  the 
two  kinds  of  beer,  was  that  the  mixture  was 
about  15  per  cent,  weaker  than  the  beer  which 
was  in  the  cask  as  it  came  from  the  brewers. 
No  water  or  any  other  matter  or  thing  (except 
the  finings)  was  added  to  the  beer.  On  appeal 
against  a  conviction  for  "  diluting  "  beer  under 
the  above  section : — Held,  that  the  mixing  of 
the  two  kinds  of  beer  amounted  to  a  dilution  of 
the  stronger  beer,  and  that  the  appellant  was 
properly  convicted.  Crofts  v.  Taylor,  19  Q.  B.  D. 
M4;  56  L.  J.,  M.  C.  137  ;  57L.T.310;  36  W.B. 
V;  51  J.  P.  532,  789  ;  16  Cox,  C.  C.  294— D. 

Grant  ef  Licences  by  Justices  to  Sell  In- 
taaiftiTig  Liquors,]  —  See  Intoxicating 
Liquom. 

Penalty—  Metropolitan  Ityrjitrates— Juris- 
diction.]—By  15  &  16  Vict.  c.  61,  s.  1,  an  infor- 
mation "  for  the  recovery  of  any  penalty  imposed 
by  any  Act  or  Acts  relating  to  the  revenue  of 
excise,  and  incurred  for  or  by  reason  of  any 
offence  committed  against  any  such  Act  or  Acts,*' 
may  be  heard  and  determined,  if  the  offence  has 
been  committed  within  the  limits  of  the  chief 
office  of  Inland  Bevenue  in  London,  before  a 
metropolitan  police  magistrate  : — Held,  that  the 
provisions  of  the  section  applied  to  informations 
for  penalties  imposed  by  statute  in  respect  of 
excise  offences  created  after  the  passing  of  the 
act,  and  therefore,  that  a  metropolitan  police 
magistrate  had  jurisdiction  to  hear  and  deter- 
mine an  information  for  the  recovery  of  the 
penalty  imposed  by  s.  4  of  the  Customs  and 
inland  Bevenue  Act,  1887,  in  respect  of  the  new 
excise  offence  created  by  that  section.  Reg.  v. 
Inghwsx,  21  Q.  B.  D.  47  ;  57  L.  J.,  M.  C.  87  ;  59 
U  T.  62  ;  36  W.  B.  811  ;  52  J.  P.  550 ;  16  Cox. 
CL  C.  505— D.  See  S.  C.  on  rule  obtained,  52  J.  P. 
375— D.  sab  nom.  Inland  Revenue  Commissioners, 
&  parte. 

Gen  Licence — Orchard  not  a  Cartilage.] — An 
orchard  behind  the  dwelling-house  and  its  out- 
sonses  is  not  within  the  curtilage,  and  therefore 
the  occupier  who  uses  a  gun  there  is  not  exempt 
from  gun  licence  duty.  Asquith  v.  Orifin,  48 
J.  P.  724— D. 


Carriage  Tax— Carriage  lent  by  Coachbuilder 
during  Bepair  to  Customer's  Carriage.] — Where 
the  owner  of  a  carriage,  which  has  accidentally 
become  disabled  during  the  year  for  which  an 
excise  licence  has  been  duly  taken  out  is  accommo- 
dated by  his  coachbuilder,  during  the  repair  of 
such  carriage,  with  the  use  of  another  carriage 
without  any  payment,  the  coachbuilder  is  not 
required  to  take  out  a  licence  in  respect  of  such 
carriage  so  lent.  Davey  v.  Thompson,  54  L.  T. 
495  ;  84  W.  B.  411 ;  50  J.  P.  260— D. 

Dog  Licence— flheep-Dog  Exemption— Burden 
of  Proof.] — N.,  a  farmer,  obtained  a  certificate 
of  exemption  for  a  sheep-dog,  and  was  summoned 
for  not  having  a  licence.  At  the  hearing  the 
revenue  officer  proved  that  he  had  seen  a  trial  of 
the  dog  as  a  sheep  and  cattle  dog,  and  that  the 
dog  did  not  obey  its  master's  orders  like  a  cattle 
dog  : — Held,  that  as  the  certificate  of  exemption 
was  some  evidence  of  a  right  to  exemption,  the 
justices  were  right  in  dismissing  the  information, 
for  the  prosecutor  had  failed  to  prove  that  the 
dog  was  not  a  cattle  dog.  James  v.  Nicholas,  50 
J.  P.  292— D. 

Duty  on  Kale  Servants — Groom.] — If  a  man- 
servant is  employed  partially  as  a  groom,  but 
substantially  in  some  other  capacity,  his  employer 
is  exempted  by  39  Vict  c.  16.  s.  5,  from  the  tax 
imposed  by  32  &  33  Vict.  c.  14,  s.  19.  Yelland 
v.  Winter,  53  L.  T.  932  ;  34  W.  B.  121 ;  60  J.  P. 
38— D. 

H.  was  employed  by  W.,  a  farmer,  to  attend  to 
the  bullocks  m  his  yard  and  to  work  on  the  land,, 
and  also  to  feed  W.'s  pony.  He  also  cleaned  the 
harness  -  and  washed  the  trap  when  necessary,, 
and  occasionally  drove  with  his  master  to  and 
from  the  railway  station.  W.  occasionally 
attended  to  the  harnessing,  unharnessing,  and 
grooming  of  the  pony  himself : — Held,  that  H. 
was  only  occasionally  and  partially  employed  as. 
a  groom,  and  that  W.  was  exempt  from  the  tax. 
lb. 


III.    TAXIS    AMD    DUTIES. 

1.    BODIES    COBPOBATE    AND    TJNIN- 

COBPOBATE. 

Income  or  Profits  of  Property— Exemption — 
Appropriation  "for  Promotion  of  ftcienee."] — By 
s.  11  of  the  Customs  and  Inland  Bevenue  Act, 
1885,  a  duty  is  imposed  upon  the  annual  value, 
income,  or  profits  of  property  belonging  to  any 
body  corporate  or  unincorporate,  subject  to  an 
exemption  in  favour  of  property  which,  or  the- 
income  or  profits  whereof,  shall  be  legally  appro- 
priated and  applied  "  for  the  promotion  of  edu- 
cation, literature,  science,  or  the  fine  arts  :"— 
Held  (Lopes,  L.  J.,  dissenting),  that  the  property 
of  the  Institution  of  Civil  Engineers  was  entitled 
to  the  benefit  of  the  exemption,  as  it  was  pro- 
perty which  was  appropriated  and  applied  for 
the  promotion  of  science.  Institution  of  Civil 
Engineers,  In  re,  20  Q.  B.  D.  621  ;  57  L.  J.,  Q.  B. 
353 ;  69  L.  T.  282  ;  36  W.  B.  698  ;  52  J.  P.  549— 
C.  A. 

Property  of  Club — Entrance  Fees  and  Sub- 
scriptions—"  Punds  voluntarily  contributed."] 
— Exemption  was  claimed  by  a  members'  club,. 


1568 


REVENUE— Taxet  and  DuJtiet. 


1564 


the  property  of  which  was  vested  in  trustees, 
and  which  had  been  established  less  than  thirty 
years,  from  the  duty  imposed  on  the  annual 
value,  income,  or  profits  of  bodies  corporate  and 
noncorporate  by  s.  11  of  the  Customs  and  Inland 
Revenue  Act,  1885,  on  the  ground  that  the  pro- 
perty of  the  club  was  "  property  acquired  by  or 
with  funds  voluntarily  contributed "  within 
thirty  years  preceding,  within  the  meaning  of 
the  6th  exemption  in  that  section.  By  the  rules 
of  the  club  every  member  on  admission  paid  an 
entrance  fee  and  the  annual  subscription  for  the 
current  year,  and,  until  payment,  was  not  ad- 
mitted to  any  of  the  benefits  or  privileges  of  the 
club,  and  payment  was  considered  as  a  declara- 
tion of  submission  to  the  rules ;  an  annual 
subscription  was  payable  on  January  1st  in  each 
year,  and  if  it  was  not  paid  on  or  before  March  1st, 
the  member's  name  was  erased  from  the  list  of 
members,  and  a  member  intending  to  withdraw 
from  the  club  had  to  give  notice  on  or  before 
January  1st,  or  otherwise  was  liable  to  pay  his 
subscription  for  the  current  year  : — Held,  that, 
as  the  entrance  fees  and  subscriptions  were  paid 
by  members  in  consideration  of  the  right  to 
enjoy  the  benefits  and  privileges  of  the  club, 
they  were  not  "  funds  voluntarily  contributed  " 
to  the  club,  and  therefore  duty  was  payable  on 
property  acquired  with  money  so  paid.  New 
Univcrtity  Club,  In  re,  18  Q.  B.  D.  720  ;  56  L. 
J.,  Q.  B.  462  ;  56  L.  T.  909  ;  35  W.  R.  774— D. 

Charitable  Institution — Funds  "Legally  ap- 
propriated and  applied  for  any  Charitable 
Purpose  "  —  Funds  "  voluntarily  contributed 
within  Thirty  Years"  —  "Property  acquired 
within  Thirty  Years  where  Legacy  Duty  paid."] 
— By  s.  11  of  the  Customs  and  Inland  Revenue 
Act,  1885,  a  duty  of  5  per  cent,  is  imposed  upon 
the  annual  value,  income,  or  profits  of  all  pro- 
perty real  and  personal  belonging  to  or  vested  in 
any  body  corporate  or  unincorporate  during  the 
year  of  assessment  after  deducting  the  costs  and 
expenses  of  the  management  of  such  property, 
subject  to  the  exemption  from  duty  in  sub-ss.  3, 
6,  and  7  respectively  contained,  in  respect  of 
u  property  or  the  income  or  profits  of  property 
legally  appropriated  and  applied  for  any  chari- 
table purpose  "  (sub-s.  3),  "  property  acquired 
by  or  with  funds  voluntarily  contributed  to  any 
body  corporate  or  unincorporate  within  a  period 
of  thirty  years  immediately  preceding  "  (sub-s.  6), 
and  "  property  acquired  by  any  body  corporate 
or  unincorporate  within  the  like  period  where 
legacy  or  succession  duty  has  been  paid  upon 
the  acquisition  thereof  "  (sub-s.  7).  The  Linen 
and  Woollen  Drapers1  Institution  was  founded 
in  1832,  with  the  object  of  making  provision  for 
decayed  members  of  the  said  trades,  their  widows 
and  children.  Rules  for  the  government  of  the 
institution  were  framed,  by  which  any  person  of 
three  years'  standing  in  any  of  the  said  trades, 
residing  within  twelve  miles  of  the  General  Post 
Office,  may,  on  payment  of  the  life  or  annual 
subscription,  be  elected  a  member.  Medical 
advice  and  medicine  are  also  provided  free  of 
charge  to  members  or  their  families ;  all  relief 
being  confined  to  members,  and  no  member 
being  entitled  as  of  right  to  assistance,  the 
board  of  directors  having  absolute  discretion  in 
every  case  to  grant  or  refuse  the  same,  and  in  no 
case  can  a  member  receive  assistance  unless  in 
necessitous  circumstances.  The  property  of  the 
institution  consists  of  the  accumulated  subscrip- 


tions of  members,  and  of  sums  contributed  88 
donations  by  benevolent  persons  other  than 
members ;  but  no  precise  or  accurate  calcula- 
tion had  been  made,  showing  how  much  of  such 
invested  funds  was  derived  from  members'  sub- 
scriptions, and  how  much  from  voluntary  con- 
tributions within  the  thirty  years  immediately 
preceding : — Held,  first,  that  the  institution  was 
not  a  charitable  institution,  but  was  in  the 
nature  of  a  mutual  benefit  society,  and  therefore 
that  the  portion  of  the  funds  derived  from  such 
subscriptions  was  not  exempt  from  duty  under 
sub-s.  3  ;  and,  secondly,  that  the  other  portions 
of  the  funds,  derived  from  voluntary  contribu- 
tions within  the  specified  period  of  thirty  years, 
and  from  property  acquired  within  the  same 
period  on  which  legacy  duty  had  been  paid 
were,  if  the  amounts  could  be  ascertained, 
exempt  from  duty  under  sub-ss.  6  and  7.  Line* 
and  Woollen  Drapers*  Institution,  In  re,  58 
L.  T.  949— D. 


2.    PROPERTY  TAX 

Landlord'! Property  Tax— Allowance*— "Mlk 
Sohool "—  Charitable  Institution.]  —By  a.  61. 
rule  6,  of  5  &  6  Vict.  c.  35.  allowances  in  respect 
of  property  tax,  levied  under  Schedule  A.  of  the 
Income  Tax  Acts,  are  to  be  made  by  the  commis- 
sioners for  the  duties  charged  "  on  any  hospital, 
public  school,  or  almshouse,  in  respect  of  the 
public  buildings,  offices,  and  premises "  belong- 
ing thereto,  if  occupied  under  certain  specified 
conditions : — Held,  that  a  school  founded  and 
carried  on  by  the  corporation  of  London  under 
the  provisions  of  an  Act  of  Parliament,  not  for 
purposes  of  profit  but  for  the  benefit  of  a  large 
portion  of  the  public,  and  maintained  partly  by 
a  charitable  endowment,  was  a  "  public  school " 
within  the  meaning  of  rule  6,  notwithstanding 
the  fact  that  the  school  was  partly  maintaioen 
by  fees  charged  for  instruction.  Blake  v.  La*dt* 
(Mayor),  19  Q.  B.  D.  79  ;  56  L.  J.,  Q.  R  424;  86 
W.  R.  791— C.  A.    Affirming  51  J.  P.  71-D. 

Self-supporting  Institution  for  lasts*] 

—By  5  &  6  Vict.  c.  35,  s.  61,  rule  6,  allow- 
ances in  respect  of  property  tax  levied  under 
Schedule  A.  of  the  Income  Tax  Acts  are  to  be 
made  by  the  commissioners  for  the  duties  charged 
"  on  any  hospital,  public  school,  or  almshouse  in 
respect  of  the  public  buildings  .  .  .  snd  for 
the  repairs  of  such  hospital,  public  school,  « 
almshouse  .  .  .  and  of  the  gardens,  walks, 
and  grounds  for  the  sustenance  or  recreation  of 
the  hospitallers,  scholars,  and  almsmen,  repaired 
and  maintained  by  the  funds  of  such  hospital 
school,  or  almshouse.  .  .  .  Or  on  the  rem* 
and  profits  of  lands,"  &&,  "  belonging  to  an? 
hospital,  public  school,  or  almshouse,  or  vested 
in  trustees  for  charitable  purposes,  so  far  as  the 
same  are  applied  to  charitable  purposes.11  By  48 
Geo.  3,  c  55,  Sched.  B.,  Exemptions,  Case  4: 
"  Any  hospital,  charity  school,  or  house  provided 
for  the  reception  or  relief  of  poor  persons  *  is 
exempt  from  the  inhabited  house  duty.  An 
institution  for  the  reception  of  insane  persons 
was  founded  by  charitable  donations,  bat  us- 
endowed.  It  was  vested  in  trustees  and  managed 
gratuitously  by  a  committee,  and  supported 
wholly  out  of  payments  made  by  the  patients, 
of  whom  some  paid  more,  some'  less  than  the 
cost  of  their  maintenance,  and  a  few  were  main- 
tained gratuitously.  After  paying  expenses  there 


1565 


REVENUE— Taxes  and  Duties. 


1566 


was  an  annual  surplus  of  profits  which  was 
expended  in  enlarging  and  improving  the  insti- 
tution :— Held,  that  the  institution  being  wholly 
self-supporting  was  not  exempt  as  an  "  hospital " 
within  the  meaning  of  either  5  &  6  Vict.  c.  35, 
s.  61,  rule  6,  or  48  Geo.  3,  c.  55,  Sched.  B., 
Case  4,  which  must  be  restricted  to  hospitals 
maintained  wholly  or  in  part  by  charity.  Need- 
kan  v.  Bowers,  21  Q.  B.  D.  436  ;  59  L.  T.  404  ; 
37W.R.125— D. 


3.    INHABITED  HOUSE  DUTY. 

Exemptions  —  "  Hospital  "  —  Self-supporting 
Asylum  for  Insane.] — See  Necdham  v.  Bowers, 
supra, 

Part  of  Infirmary.] — Where  a  house  was 

situate  within  the  precincts  of  an  infirmary, 
wherein  the  medical  superintendent  is  required 
to  reside  by  minute  of  the  managers  and  by  the 
exigencies  of  the  hospital,  but  not  by  statute  : — 
Held,  that  the  house  was  a  necessary  part  of  the 
infirmary,  and  therefore  exempt  under  Case  4, 
Sched.  B.  of  48  Geo.  3,  c.  55.     Wilson  v.  Fasson, 

48  J.  P.  361— Ex.  Scotland. 

Occupation  by  Caretaker.]  —  A  female 

caretaker  resided  on  premises,  and  it  was  a 
condition  of  her  employment  that  her  son,  who 
was  a  clerk,  employed  elsewhere,  should  sleep 
on  the  premises  for  their  better  protection : — 
Held,  that  the  premises  were  not  exempt  from 
inhabited  house  duty  under  41  Vict.  c.  15,  s.  13, 
sub-s.  2.  Weguelin  v.  Wyatt,  14  Q.  B.  D.  838  ; 
54  L.  J.,  Q.  B.  308  ;  52  L.  T.  807  ;  33  W.  R.  566  ; 

49  J.  P.  486— D. 

Tenements  —  Internal  Communication.]  —  A 
house  was  occupied  on  the  ground  floor  as  a 
bank  (by  the  owners)  and  as  stamp  and  tax 
offices,  on  the  first  floor  as  writing  chambers. 
There  was  internal  communication  throughout 
these  two  floors.  The  second  floor  was  enclosed 
by  a  door  leading  to  the  staircase  connecting 
the  first  and  second  floors,  and  was  occupied  as  a 
residence  by  the  bank  accountant : — Held,  that 
the  whole  premises  were  liable.  Clerk  v.  British 
Linen  Company,  49  J.  P.  825— Ex.  Scotland. 

Two  houses  with  internal  communication  were 
let  to  various  occupiers,  and  used  partly  as  offices 
and  partly  as  a  residence.  The  street  door  of 
one  house  opened  into  a  vestibule,  from  which 
two  doors  led  into  the  offices ;  and  another  door 
opened  into  the  lobby  of  the  residential  portion, 
and  afforded  the  only  means  of  entrance  into  the 
residence : — Held,  that  the  house  fell  within 
s.  13,  sub-a.  1  of  41  Vict.  c.  15.  Corke  v.  Brims, 
48  J.  P.  376— Ex.  Scotland. 

A  building  was  divided  into  two  self-contained 
tenements,  one  of  which  was  occupied  as  offices 
by  a  firm  whose  individual  partners  owned  the 
building,  whilst  the  other  was  let  to  one  of  the 
partners,  who  occupied  it  as  a  residence : — Held, 
that  inhabited  house  duty  was  chargeable  only 
upon  the  value  of  the  dwelling-house.  Nisbet  v. 
JtV»*»,  48  J.  P.  776— Ex.  Scotland. 

A  house  was  divided  into  two  tenements, 
which  were  let  to  the  same  tenants  under  one 
lease,  in  which  the  tenements  were  separately 
described : — Held,  that  s.  13,  sub-s.  1,  of  41  Vict. 
c  15,  applied.  Smiles  v.  Crooke,  50  J.  P.  696— 
Ex.  Scotland. 


4.  INCOME  TAX. 


a.   Property  and  Persona  Liable. 

Assise  Courts — Police  Station.] — The  justices 
of  a  county,  in  the  due  exercise  of  statutory 
powers,  erected  assize  courts,  with  the  usual 
rooms  and  offices,  and  a  county  police-station, 
with  the  usual  offices  and  accommodation  for 
constables  living  there  and  for  prisoners.  The 
land  on  which  they  were  built  was  conveyed, 
under  21  &  22  Vict.  c.  92,  to  the  clerk  of  the 
peace,  to  hold  to  him  and  his  successors  for  ever 
upon  trust,  for  the  construction  of  a  police 
station,  and  otherwise  for  such  uses  as  the  county 
justices  should  from  time  to  time  order.  The 
buildings  formed  one  block,  and  were  used  for 
the  administration  of  justice  and  for  police  pur- 
poses. Parts  of  the  buildings  were  also  used  for 
holding  county  and  committee  meetings,  and 
various  other  occasional  purposes,  but  no  rent  or 
profit  was  received  or  made  in  respect  of  the 
buildings  or  any  part  of  them  : — Held,  that  in- 
come tax  was  not  payable  in  respect  of  the 
buildings  under  scheds.  A.  or  B.  of  5  &  6  Vict. 
c.  35,  and  16  &  17  Vict.  c.  34.  Coomber  v. 
Berks  JJ.,  9  App.  Cas.  61  ;  53  L.  J.,  Q.  B.  239  ; 
50  L.  T.  405  ;  32  W.  R.  625 ;  48  J.  P.  421— 
H.  L.  (E.). 

County  Lunatic  Asylum  —  Medical  Officers' 
Apartments.  ]  —  The  justices  of  a  county  are 

?iroperly  assessed,  under  schedule  A  of  the 
ncome  Tax  Acts,  in  respect  of  such  parts  of  a 
county  lunatic  asylum  as  are  occupied  as  apart- 
ments by  the  medical  superintendent,  medical 
officers,  and  steward,  and  in  respect  of  a  separate 
house  occupied  by  the  chaplain  of  such  asylum. 
Bray  v.  Lancashire  JJ.,  57  L.  J.,  M.  C.  57  ;  69 
L.  T.  438  ;  52  J.  P.  650— D.  Affirmed  22  Q.  B.  D. 
484 ;  58  L.  J.,  M.  C.  54  ;  37  W.  R.  392 ;  53 
J.  P.  499— C.  A. 

Hospital— Payments  "applied  to  Charitable 
Purposes  only."] — The  managing  committee  of 
an  hospital,  founded  by  voluntary  contribution 
for  the  care  and  treatment  of  insane  persons, 
made  large  yearly  profits  by  receiving  wealthy 
patients,  who  were  cnarged  sums  greatly  exceed- 
ing the  actual  cost  of  their  maintenance  and 
treatment.  The  committee  applied  a  portion  of 
those  profits  in  aid  of  the  maintenance  and  treat- 
ment of  poorer  patients,  who  were  themselves 
unable  to  pay  the  actual  cost  thereof,  and  the 
remainder  in  executing  works  which  were 
pressed  upon  the  committee  by  the  Commis- 
sioners in  Lunacy,  and  were  deemed  necessary 
to  bring  the  hospital  into  a  proper  state  of 
efficiency  : — Held,  that  the  profits  were  not,  by 
reason  of  such  application  of  them  to  the  pur- 
poses of  the  hospital,  payments  "  applied  to 
charitable  purposes  only  "  within  the  meaning 
of  s.  105  of  6  &  6  Vict.  c.  35,  so  as  to  exempt 
the  institution  from  payment  of  income  tax 
under  Sched.  D.  St.  Andrew's  Hospital  v. 
Stearsmith,  19  Q.  B.  D.  624  ;  67  L.  T.  413  ;  35 
W.  R.  811— D. 

Vocation  —  Betting.]  —  Persons  receiving 
profits  from  betting,  systematically  carried  on 
by  them  throughout  the  year,  are  chargeable 
with  income  tax  on  such  profits  in  respect  of  a 
"  vocation  "  under  5  &  6  Vict,  c  35  (the  income 


1667 


REVENUE— Taxet  and  Duties. 


1568 


Tax  Act)  Sched.  D.  Partridge  v.  Mallandaine, 
18  Q.  B.  D.  276 ;  56  L.  J.,  Q.  B.  251 ;  56  L.  T. 
203  ;  35  W.  B.  276— D. 

Corporation— Surplus  Profit! — Profits  appro- 
priated  by  Statute.] — A  corporation  was  consti- 
tuted for  the  management  of  the  Mersey  Docks 
estate  by  an  act  which  provided  that  the  moneys 
to  be  received  by  them  from  their  dock  dues  and 
other  sources  of  revenue  should  be  applied  in 
payment  of  expenses,  interest  upon  deDts,  con- 
struction of  works,  and  management  of  the 
estate  ;  and  that  the  surplus  should  be  applied 
to  a  sinking  fund  for  the  extinguishment  of  the 
principal  of  the  debts ;  and  that  after  such 
extinguishment  the  rates  should  be  reduced  ; 
and  that,  except  as  aforesaid,  the  moneys  should 
not  be  applied  for  any  other  purpose  whatsoever  ; 
and  that  nothing  should  affect  their  liability  to 
parochial  or  local  rates  : — Held,  that  under  the 
Income  Tax  Acts  the  corporation  was  liable  to 
income  tax  in  respect  of  the  surplus,  though 
applicable  to  the  above-named  purposes  only. 
Mersey  Docks  v.  Lucas,  8  App.  Gas.  891 ;  53 
L.  J.,  Q.  B.  4  ;  49  L.  T.  781 ;  32  W.  R.  34  ;  48 
J.  P.  212— H.  L.  (E.). 

Burial   Board— Application  of  Surplus 

Income  in  aid  of  Poor-rate —  "Profit."]— A 
burial  board  was  constituted  under  15  &  16 
Vict.  c.  85,  and  in  pursuance  of  the  act  a  burial- 
ground  was  provided  with  money  charged  upon 
the  poor-rate  of  the  parish,  and  the  surplus  over 
expenditure  of  the  income  derived  from  the  fees 
charged  by  the  board  was  regularly  applied  in 
aid  of  the  poor-rate : — Held,  that  the  board  were 
liable  to  be  assessed  to  the  income  tax  in  respect 
of  such  surplus,  inasmuch  as  the  provision  re- 
quiring it  to  be  applied  in  aid  of  the  poor-rate 
did  not  prevent  it  from  being  a  "  profit "  within 
5  &  6  Vict  c.  85,  s.  60.  Paddington  Burial 
Board  v.  Inland  Revenue  Commissioners,  13 
Q.  B.  D.  9 ;  53  L.  J.,  Q.  B.  224  ;  50  L.  T.  211 ; 
32  W.  R.  561 ;  48  J.  P.  311— D. 

Surplus  Revenue  —  Water  Supply.]  — 

The  Glasgow  Corporation  Water  Commissioners 
are  liable  to  assessment  in  respect  of  surplus 
revenue  derived  from  supplying  water  beyond 
the  area  of  compulsory  supply,  and  from  the 
sale  of  water  for  purposes  of  trade,  Glasgow 
Corporation  v.  Miller,  50  J.  P.  603— Ex., 
Scotland. 

By  the  Dublin  Corporation  Waterworks  Act, 
1861  (24  &  25  Vict.  c.  clxxii.),  the  corporation 
were  empowered  to  construct  waterworks  for 
the  supply  of  water  to  the  borough  of  Dublin 
and  certain  extra-municipal  districts,  and  were 
authorised  to  borrow  money  for  the  purposes  of 
the  act  on  the  rates  leviable  under  it ;  and  em- 
powered to  levy  certain  rates  on  the  owners  and 
occupiers  of  property  within  the  borough.  They 
were  also  authorised  to  contract  with  owners  or 
occupiers  of  property  in  the  extra-municipal 
districts  for  tne  supply  of  water  for  domestic 
use,  and  to  charge  rate  or  rent  for  such  supply, 
to  be  called  a  "  contract  water  rate."  By  the 
Dublin  Waterworks  Act,  1870  (33  &  34  Vict. 
c  96),  it  was  provided  that  the  income  derived 
from  the  extra-municipal  districts  should  form, 
with  the  city  rates,  a  consolidated  fund,  avail- 
able for  the  payment  of  principal  and  interest 
of  loans,  and  applicable  to  all  the  purposes  of 


the  act : — Held,  that  the  excess  of  receipta  over 
expenditure  in  respect  of  extra  municipal  dis- 
tricts was  liable  to  income  tax.  DubUn  Cor- 
poration v.  MtAdam,  20  L.  B.,  Ir.  497— Ex.  D. 

Water  Supply  to  Barraeks.T— A  water. 

works  company  is  liable  for  profits  derived  from 
selling  water  by  meter  to  barracks  within  the 
area  of  compulsory  supply.  Allan  v.  Hamilton 
Waterworks  Commissioners,  51  J.  P.  727— Rl, 
Scotland. 

Insurance  Company — "Profits  and  Gaina"— 
Bonuses  to  Participating  Policy-holdert.]— A 
life  insurance  company  issued  "participating 
policies,"  according  to  the  terms  of  which  soy 
surplus  which  existed  at  the  end  of  each  quin- 
quennial period  in  the  hands  of  the  company, 
after  payment  of  policies  falling  due  during 
such  period,  and  provision  for  outstanding  lia- 
bilities, was  dealt  with  as  follows :  two-thuda 
of  the  surplus  went  to  the  policy-holders,  who 
received  payment  thereof  either  by  way  of  bonus 
or  abatement  of  premiums  ;  the  remaining  third 
of  the  surplus  went  to  the  company,  who  bore 
the  whole  expenses  of  the  business,  the  portion 
remaining  after  payment  of  expenses  constituting 
the  only  profit  available  for  division : — Held  (by 
Lords  Blackburn  and  Fitzgerald,  Lord  Bramwdl 
diss.),  that  the  two-thirds  returned  to  the  pohcr- 
holders  were  "  annual  profits  or  gains  and 
assessable  to  income  tax.  Last  v.  London  Asm* 
anoe  Corporation,  10  App.  Cas,  438 ;  65  L.  J„ 
Q.  B.  92  ;  53  L.  T.  634  ;  34  W.  B.  233 ;  60  J.  P. 
116— H.  L.  (E.). 

Where  a  life  insurance  company  carrying 
on  business  in  New  York  and  Great  Britain 
issued  participating  policies  as  well  as  non- 
participating  policies  in  Great  Britain  to  mem- 
bers of  the  company,  and  remitted  the  net 
amount  received  to  New  York : — Held,  that  the 
premium  income  derived  from  participating  as 
well  as  non-participating  policies  was  a  "  profit 
or  gain  "  liable  to  be  asoooocd  to  income  tax. 
Last  v.  London  Assurance  Corporation  (10  Aft- 
Cas.  438)  followed.  Styles  v.  New  York  Iff* 
Insurance  Company,  61  J.  P.  487 — D. 

"  Profit*  and  Gains"— Interest  artaag 

from  Investments  made  lor  purpoa*  of  carrying 
on  Business,] — The  amount  of  interest  arising 
from  investments  made  by  an  insurance  com- 
pany for  the  purpose  of  carrying  on  their  bmv 
ness  on  which  income  tax  had  been  deducted 
at  its  source  amounted  to  more  than  the  profits 
of  the  company  for  the  year  of  assessment,  bat 
the  company  had  during  the  year  received  inte- 
rest from  investments  on  which  income  tax  had 
not  been  deducted  at  its  source : — Held,  that 
under  s.  102  of  the  Income  Tax  Act,  1842  (5  *  % 
Vict  c.  35),  and  sched.  D.  of  s.  2  of  the  Income 
Tax  Act,  1853  (16  &  17  Vict,  c  34),  the  company 
were  liable  to  pay  income  tax  on  the  interest 
from  which  income  tax  had  not  been  deducted 
at  its  source.  Last  v.  London  Assurance  Cst- 
poration  (10  App.  Cas.  438)  considered.  Clerical, 
Medical,  and  General  Life  Assurance  Society 
v.  Carter,  21  Q.  B.  D.  339 ;  67  L.  J.,  Q.  B.  614 ; 
59  L.  T.  827 ;  37  W.  B.  124— D.  Affirmed  22 
Q.  B.  D.  444  ;  58  L.  J.,  Q.  B.  224 ;  37  W.  & 
346  ;  53  J.  P.  276— C.  A. 

Person  residing  in  Bngland— Trade  carried  on 
Abroad— Profits  no*  remitted  to  England.]— The 


1569 


REVENUE— Taxes  and  Duties. 


1570 


respondent,  who  resided  wholly  in  England,  was 
a  partner  in  a  firm  carrying  on  business  solely 
in  Melbourne,  Australia.  Profits  were  made  by 
the  firm,  and  a  portion  of  the  respondent's  share 
thereof  was  remitted  to  him  in  England,  and  re- 
turned by  him  for  assessment  to  the  income  tax 
under  Schedule  D.  The  larger  portion  of  his 
share  of  the  profits  of  the  firm  was  not  remitted 
to  him  in  England,  but  was  left  in  Australia. 
The  appellant  contended  that  the  respondent 
was  liable  in  respect  of  the  whole  of  his  share 
of  the  profits,  whether  received  by  him  in  Eng- 
land or  not,  as  being  profits  or  gains  arising  or 
accruing  to  him  while  residing  in  the  United 
Kingdom  from  a  trade  carried  on  elsewhere, 
within  the  meaning  of  16  &  17  Vict.  c.  34,  s.  2, 
Sched.  D.  -.—Held  (Fry,  L.  J.,  dissenting),  that 
the  respondent  was  not  liable  to  income  tax  in 
respect  of  that  portion  of  his  profits  which  did 
not  reach  him  in  England.  Colquhoun  v.  Brooks, 
21  Q.  B.  D.  52  ;  57  L.  J.,  Q.  B.  439  ;  59  L.  T. 
661 ;  36  W.  R.  657  ;  52  J.  P.  645— C.  A.  Afiirmed 
in  H.  L.,  W.  N.,  1889,  p.  168. 

Trade  exercised  within  the  United  Kingdom 
—Foreigner  resident  Abroad.] — T.  &  Co.  were  a 
firm  of  wine  merchants  residing  and  carrying 
on  business  at  Bordeaux,  and  T.,  the  senior 
partner  of  the  firm,  usually  spent  about  four 
months  at  different  times  in  every  year  in 
England,  seeing,  and  taking  orders  for  wine  from, 
retail  wine  merchants  and  other  customers,  and 
living  during  that  time  chiefly  in  London,  and 
when  there  always  at  an  hotel,  and  having  no 
other  English  residence.  The  appellants  em- 
ployed a  firm  of  London  wine  merchants  as  their 
agents,  in  whose  offices  a  room,  the  rent  of  which 
was  paid  by  the  appellants,  was  provided  for 
their  use,  and  there  they  had  their  own  clerk, 
whose  salary  was  paid  by  them,  and  their  name 
was  painted  up  on  the  premises.  The  wines 
ordered  were  shipped  by  the  appellants  from 
Bordeaux,  whence  also  bills  of  lading  and  invoices 
were  forwarded  by  them,  sometimes  to  the  pur- 
chasers direct  and  sometimes  to  the  agents,  who 
collected  all  the  accounts,  received  payment  for 
all  the  wines  ordered,  and  transacted  all  the 
necessary  business  not  transacted  by  T.  in  Eng- 
land. For  this  the  agents  were  paid,  not  by 
salary,  but  by  receiving  a  commission  on  all 
wines  sold  in  England  by  the  appellants  or 
ordered  through  T.,  such  commission  covering 
all  expenses  attaching  to  the  appellants1  business 
in  England,  and  including  a  guarantee  of  all 
debts  for  the  appellants1  wines  sold  in  England : 
and  they,  the  agents,  had  been  charged  and  had 
paid  income  tax  on  the  profits  made  by  them  by 
this  agency : — Held,  that  the  appellants,  though 
non-resident  in  this  country, "  exercised  a  trade  " 
within  the  meaning  of  the  2nd  clause  of  Sched. 
D.  to  s.  2  of  16  &  17  Vict.  c.  34,  and  were  rightly 
chargeable  to  income  tax  on  the  annual  profits 
and  gains  derived  by  them  therefrom,  notwith- 
standing that  the  agents  had  been  charged  and 
paid  income  tax  on  their  profits  ;  and  further, 
that  a.  41  of  6  &  6  Vict.  c.  35,  was  passed  in  aid 
and  not  in  derogation  of  the  rights  of  the  Crown 
in  collecting  the  revenue,  and  not  in  any  way 
to  alter  the  incidence  of  taxation,  ^tickler  v. 
Apthorpe,  52  L.  T.  814  ;  33  W.  B.  548  ;  49  J.  P. 
372— D. 

The  appellants,  a  firm  of  wine  merchants  at 
Rheims,  employed  a  London  firm  to  obtain  orders 
for  their  wine  in  England.   The  wine  was  adver- 


tised in  England,  and  the  London  firm  issued 
circulars  from  time  to  time  with  the  authority  of 
the  appellants  detailing  the  price  and  terms  of 
sale.  The  name  of  the  appellants'  firm  was  put 
up  at  the  business  premises  of  the  London  firm 
and  was  published  in  the  London  Directory  with 
that  address.  The  appellants  had  no  wine  in 
England,  and  all  orders  were  forwarded  to 
Rheim8,and  the  wine,  invoiced  in  the  appellants' 
name,  was  packed  and  sent  direct  from  thence 
to  the  customer  at  his  expense  and  risk.  Pay- 
ments were  either  made  direct  to  the  appellants' 
or  to  the  London  firm,  who  remitted  the  amount 
to  the  appellants  without  carrying  it  to  any 
current  account  Any  bill  drawn  for  payment 
of  wine  was  sent  to  the  London  firm  to  obtain 
the  acceptance  and  to  hold  for  the  appellants. 
Formal  receipts  were  sent  by  the  appellants  to 
purchasers  for  all  payments,  whether  made  direct 
or  through  the  London  firm.  The  London  firm 
were  paid  by  a  commission  on  all  wine  sold,  and 
the  appellants  alone  were  interested  in  the  gain 
or  loss  on  the  sales : — Held,  that  the  appellants 
exercised  a  trade  within  the  United  Kingdom 
within  Sched.  D.  of  16  &  17  Vict.  c.  34,  and  were 
assessable  to  the  income  tax  in  respect  of  the 
profits  arising  therefrom.  Werle  v.  ColquJumn, 
20  Q.  B.  D.  753 ;  67  L.  J.,  Q.  B.  323  ;  58  L.  T. 
756  ;  36  W.  B.  613  ;  52  J.  P.  644— C.  A- 

A  foreign  firm  of  wine  merchants,  whose  chief 
office  is  in  France  and  none  of  whom  are  resident 
in  England,  but  who  have  established  a  resident 
agent  in  London  through  whom  wine  is  sold  to, 
and  money  in  payment  for  it  received  from, 
English  customers,  are  assessable  to  the  income 
tax  under  Sched.  D.  in  respect  of  the  annual 
profits  or  gains  arising  from  a  trade  exercised 
within  the  United  Kingdom.  Pommery  v.  Ap- 
thorpe,  56  L.  J.,  Q.  B.  155 ;  56  L.  T.  24 ;  35  W. 
B.  307— D. 


b.  Assessment  and  Deductions. 

Coal  Mines — Dead  Bent  and  Boyalties— Agree- 
ment to  repay  Boyalties  overpaid.] — By  an 
agreement  for  a  lease  of  coal  mines  for  a  term  of 
years  from  March,  1874,  the  lessees  agreed  to 
pay  a  dead  rent  for  the  mines,  and  royalties  at 
specified  rates  per  ton  on  all  coal  worked  ;  the 
dead  rent  to  be  recoupable  out  of  royalties 
during  the  first  sixteen  years  of  the  term — the 
effect  being,  that  the  lessor  received  on  account 
of  his  share  of  the  profits  of  the  concern  not  less 
than  a  fixed  annual  sum ;  so  that  when  his  share 
of  the  royalties  did  not  amount  to  the  fixed  sum 
he  received  that  sum  ;  but  when  his  share  of  the 
royalties  exceeded  the  fixed  sum  he  received  that 
sum  only  until  the  lessees  had  been  reimbursed 
the  excess  paid  to  the  lessor  when  his  share  of 
the  royalties  did  not  amount  to  the  fixed  sum. 
The  lessees  worked  the  mines  for  the  first  time  in 
October,  1880,  having  paid  the  dead  rent,  less 
income  tax,  to  the  lessor  up  to  that  year.  Upon 
an  assessment  to  the  income  tax,  made  upon  the 
lessees  under  Sched.  D.  for  the  year  1881-2,  it 
appeared  that  the  lessor's  share  of  the  royalties 
for  that  year  had  exceeded  the  dead  rent  by  the 
sum  of  1,477/. : — Held,  that  in  estimating  the 
profits  of  the  concern  for  the  particular  year  for 
the  purpose  of  being  assessed  under  the  Income 
Tax  Acts,  the  lessees  were  not  entitled  to  deduct 
the  1,4772.  from  their  gross  profits.  Brovghton 
Coal  Company  v.  Eirkpatriek,  14  Q.  B.  D.  491 ; 

3  E 


1567 


REVENUE— Tore*  and  Duties. 


1568 


Tax  Act)  Sched.  D.  Partridge  v.  Mallandaine, 
18  Q.  B.  D.  276 ;  56  L.  J.,  Q.  B.  251 ;  66  L.  T. 
203 ;  36  W.  R.  276— D. 

Corporation — Surplus  Profit! — Profits  appro- 
priated by  Statute.] — A  corporation  was  consti- 
tuted for  the  management  of  the  Mersey  Docks 
estate  by  an  act  which  provided  that  the  moneys 
to  be  received  by  them  from  their  dock  dues  and 
other  sources  of  revenue  should  be  applied  in 
payment  of  expenses,  interest  upon  debts,  con- 
struction of  works,  and  management  of  the 
estate  ;  and  that  the  surplus  should  be  applied 
to  a  sinking  fund  for  the  extinguishment  of  the 
principal  of  the  debts ;  and  that  after  such 
extinguishment  the  rates  should  be  reduced  ; 
and  that,  except  as  aforesaid,  the  moneys  should 
not  be  applied  for  any  other  purpose  whatsoever  ; 
and  that  nothing  should  affect  their  liability  to 
parochial  or  local  rates  : — Held,  that  under  the 
Income  Tax  Acts  the  corporation  was  liable  to 
income  tax  in  respect  of  the  surplus,  though 
applicable  to  the  above-named  purposes  only. 
Mersey  Docks  v.  Lucas,  8  App.  Cas.  891 ;  53 
L.  J.,  Q.  B.  4  ;  49  L.  T.  781 ;  32  W.  R.  34  ;  48 
J.  P.  212— H.  L.  (B.). 

Burial   Board— Application  of  Surplus 

Income  in  aid  of  Poor-rate  — "Profit."] — A 
burial  board  was  constituted  under  15  &  16 
Vict.  c.  85,  and  in  pursuance  of  the  act  a  burial- 
ground  was  provided  with  money  charged  upon 
the  poor-rate  of  the  parish,  and  the  surplus  over 
expenditure  of  the  income  derived  from  the  fees 
charged  by  the  board  was  regularly  applied  in 
aid  of  the  poor-rate : — Held,  that  the  board  were 
liable  to  be  assessed  to  the  income  tax  in  respect 
of  such  surplus,  inasmuch  as  the  provision  re- 
quiring it  to  be  applied  in  aid  of  the  poor-rate 
aid  not  prevent  it  from  being  a  "profit"  within 
5  &  6  Vict.  c.  35,  s.  60.  Paddingtcn  Burial 
Board  v.  Inland  Revenue  Commissioners,  18 
Q.  B.  D.  9  ;  53  L.  J.,  Q.  B.  224  ;  50  L.  T.  211 ; 
32  W.  R.  561 ;  48  J.  P.  311— D. 

Surplus   Bevenue  —  Water   Supply.]  — 

The  Glasgow  Corporation  Water  Commissioners 
are  liable  to  assessment  in  respect  of  surplus 
revenue  derived  from  supplying  water  beyond 
the  area  of  compulsory  supply,  and  from  the 
sale  of  water  for  purposes  of  trade.  Glasgow 
Corporation  v.  Miller,  50  J.  P.  608— Ex., 
Scotland. 

By  the  Dublin  Corporation  Waterworks  Act, 
1861  (24  &  25  Vict.  c.  clxxii.),  the  corporation 
were  empowered  to  construct  waterworks  for 
the  supply  of  water  to  the  borough  of  Dublin 
and  certain  extra-municipal  districts,  and  were 
authorised  to  borrow  money  for  the  purposes  of 
the  act  on  the  rates  leviable  under  it ;  and  em- 
powered to  levy  certain  rates  on  the  owners  and 
occupiers  of  property  within  the  borough.  They 
were  also  authorised  to  contract  with  owners  or 
occupiers  of  property  in  the  extra-municipal 
districts  for  tne  supply  of  water  for  domestic 
use,  and  to  charge  rate  or  rent  for  such  supply, 
to  be  called  a  "  contract  water  rate."  By  the 
Dublin  Waterworks  Act,  1870  (33  &  34  Vict 
c.  96),  it  was  provided  that  the  income  derived 
from  the  extra-municipal  districts  should  form, 
with  the  city  rates,  a  consolidated  fund,  avail- 
able for  the  payment  of  principal  and  interest 
of  loans,  and  applicable  to  all  the  purposes  of 


the  act : — Held,  that  the  excess  of  receipts  over 
expenditure  in  respect  of  extra  municipal  dis- 
tricts was  liable  to  income  tax.  Dublin  &f» 
poration  v.  IP  Adam,  20  L.  B.,  Ir.  497— Bx.  D. 

Water  8upply  to  Barracks.!— A  water- 

works  company  is  liable  for  profits  derived  from 
selling  water  by  meter  to  barracks  within  the 
area  of  compulsory  supply.  Allan  v.  Hantitsn 
Waterworks  Commissioners,  51  J.  P.  727— Ex., 
Scotland. 

Insurance  Company — "Profits  and  Gain"— 
Bonuses  to  Participating  Polioy-holden.]— A 
life  insurance  company  issued  "  participating 
policies,"  according  to  the  terms  of  which  any 
surplus  which  existed  at  the  end  of  each  quin- 
quennial period  in  the  hands  of  the  company, 
after  payment  of  policies  falling  doe  doling 
such  period,  and  provision  for  outstanding  lia- 
bilities, was  dealt  with  as  follows :  two-think 
of  the  surplus  went  to  the  policy-holders,  who 
received  payment  thereof  either  by  way  of  bono* 
or  abatement  of  premiums  ;  the  remaining  third 
of  the  surplus  went  to  the  company,  who  bore 
the  whole  expenses  of  the  business,  the  portion 
remaining  after  payment  of  expenses  coustitntinf 
the  only  profit  available  for  division : — Held  (by 
Lords  Blackburn  and  Fitzgerald,  Lord  Bnmwell 
diss.),  that  the  two-thirds  returned  to  the  policy- 
holders were  "  annual  profits  or  gains "  and 
assessable  to  income  tax.  Last  v.  London  Asswh 
ance  Corporation,  10  App.  Gas.  438;  55  L.J* 
Q.  B.  92  ;  53  L.  T.  634  ;  34  W.  B.  233;  50  J.P. 
116— H.  L.  (E.). 

Where  a  life  insurance  company  carrying 
on  business  in  New  York  and  Great  Britain 
issued  participating  policies  as  well  as  non- 
participating  policies  in  Great  Britain  to  mem- 
bers of  the  company,  and  remitted  the  net 
amount  received  to  New  York  : — Held,  that  tat 
premium  income  derived  from  participating  a* 
well  as  non-participating  policies  was  a  "  profit 
or  gain  "  liable  to  be  assessed  to  income  tax. 
Last  v.  London  Assurance  Corporation  (\Q  Aft 
Gas.  438)  followed.  Styles  v.  New  York  ty 
Insurance  Company,  61  J.  P.  487 — D. 


"Profits  and  Gains"— Interest  arte* 

from  Investments  made  for  purpose  of  terr/isf 
on  Business.] — The  amount  of  interest  arte* 
from  investments  made  by  an  insurance  com- 
pany for  the  purpose  of  carrying  on  their  bari-l 
ness  on  which  income  tax  had  been  deducted  f 
at  its  source  amounted  to  more  than  the  profit*  I 
of  the  company  for  the  year  of  assessment,  hat 
the  company  had  during  the  year  received  into*  I 
rest  from  investments  on  which  income  tax  hadl| 
not  been  deducted  at  its  source : — Held, 
under  s.  102  of  the  Income  Tax  Act,  1842  (o  * 
Vict.  c.  35),  and  sched.  D.  of  a.  2  of  the  In< 
Tax  Act,  1853  (16  &  17  Vict,  c  34),  the  company 
were  liable  to  pay  income  tax  on  the  inter©* 
from  which  income  tax  had  not  been  deducted 
at  its  source.  Last  v.  London  Assurance  Cor* 
poration  (10  App.  Gas.  438)  considered.  Clerical, 
Medical,  and  General  Life  Assurance  tkeiety 
v.  Carter,  21  Q.  B.  D.  339 ;  57  L.  J.,  Q.  B.  614 ; 
59  L.  T.  827 ;  37  W.  B.  124— D.  Affirmed  2* 
Q.  B.  D.  444 ;  58  L.  J.,  Q.  B.  224 ;  87  W.  a 
346  ;  63  J.  P.  276— C.  A. 

Person  residing  in  Bngland— Trade  oarrisd  am 
Abroad— Profits  no*  remitted  to  England.]— Tha 


1569 


REVENUE— Tore*  and  Duties. 


1570 


respondent,  who  resided  wholly  in  England,  was 
a  partner  in  a  firm  carrying  on  business  solely 
in  Melbourne,  Australia.  Profits  were  made  by 
the  firm,  and  a  portion  of  the  respondent's  share 
thereof  was  remitted  to  him  in  England,  and  re- 
tained by  him  for  assessment  to  the  income  tax 
under  Schedule  D.  The  larger  portion  of  his 
thare  of  the  profits  of  the  firm  was  not  remitted 
to  him  in  England,  but  was  left  in  Australia. 
The  appellant  contended  that  the  respondent 
was  liable  in  respect  of  the  whole  of  his  share 
of  the  profits,  whether  received  by  him  in  Eng- 
land or  not,  as  being  profits  or  gains  arising  or 
accruing  to  him  while  residing  in  the  United 
Kingdom  from  a  trade  carried  on  elsewhere, 
within  the  meaning  of  16  &  17  Vict.  c.  34,  s.  2, 
8ched.  D. : — Held  (Fry,  L.  J.,  dissentiDg),  that 
the  respondent  was  not  liable  to  income  tax  in 
respect  of  that  portion  of  his  profits  which  did 
not  reach  him  in  England.  Colquh&un  v.  Brook*, 
21  Q.  B.  D.  52  ;  57  L.  J.,  Q.  B.  439  ;  59  L.  T. 
«61 ;  36  W.  R.  657  ;  52  J.  P.  646— C.  A.  Afiirmed 
in  H.  L.,  W.  N.,  1889,  p.  168. 

Trade  exercised  within  the  United  Kingdom 
—Foreigner  resident  Abroad.]— T.  &  Co.  were  a 
firm  of  wine  merchants  residing  and  carrying 
on  business  at  Bordeaux,  and    T.,  the  senior 
partner  of  the  firm,  usually  spent  about  four 
months  at   different   times  in   every  year  in 
England,  seeing,  and  taking  orders  for  wine  from, 
retail  wine  merchants  and  other  customers,  and 
living  during  that  time  chiefly  in  London,  and 
when  there  always  at  an  hotel,  and  having  no 
other  English  residence.    The  appellants  em- 
ployed a  firm  of  London  wine  merchants  as  their 
agents,  in  whose  offices  a  room,  the  rent  of  which 
was  paid  by  the  appellants,  was  provided  for 
their  use,  and  there  they  had  their  own  clerk, 
whose  salary  was  paid  by  them,  and  their  name 
was  painted  up  on  the  premises.     The  wines 
ordered  were  shipped  by  the  appellants  from 
Bordeaux,  whence  also  bills  of  lading  and  invoices 
were  forwarded  by  them,  sometimes  to  the  pur- 
chasers direct  and  sometimes  to  the  agents,  who 
collected  all  the  accounts,  received  payment  for 
all  the  wines  ordered,  and  transacted  all  the 
necessary  business  not  transacted  by  T.  in  Eng- 
land.   For  this  the  agents  were  paid,  not  by 
salary,  but  by  receiving  a  commission  on  all 
wines  sold  in  England  by  the  appellants  or 
ordered  through  T.,  such  commission  covering 
all  expenses  attaching  to  the  appellants*  business 
in  England,  and  including  a  guarantee  of  all 
debts  for  the  appellants1  wines  sold  in  England : 
and  they,  the  agents,  had  been  charged  and  had 
paid  income  tax  on  the  profits  made  by  them  by 
this  agency  : — Held,  that  the  appellants,  though 
non-resident  in  this  country, "  exercised  a  trade  " 
within  the  meaning  of  the  2nd  clause  of  Sched. 
D.  to  s.  2  of  16  &  17  Vict.  c.  34,  and  were  rightly 
chargeable  to  income  tax  on  the  annual  profits 
and  gains  derived  by  them  therefrom,  notwith- 
standing that  the  agents  had  been  charged  and 
paid  income  tax  on  their  profits  ;  and  further, 
that  a  41  of  5  &  6  Vict.  c.  35,  was  passed  in  aid 
and  not  in  derogation  of  the  rights  of  the  Grown 
in  collecting  the  revenue,  and  not  in  any  way 
to  alter  the  incidence  of  taxation,    fitchler  v. 
AptKorpe,  62  L.  T.  814  ;  33  W.  R.  548  ;  49  J.  P. 
372-D. 

The  appellants,  a  firm  of  wine  merchants  at 
Bheims,  employed  a  London  firm  to  obtain  orders 
for  their  wine  in  England.   The  wine  was  adver- 


tised in  England,  and  the  London  firm  issued 
circulars  from  time  to  time  with  the  authority  of 
the  appellants  detailing  the  price  and  terms  of 
sale.  The  name  of  the  appellants'  firm  was  put 
up  at  the  business  premises  of  the  London  firm 
and  was  published  in  the  London  Directory  with 
that  address.  The  appellants  had  no  wine  in 
England,  and  all  orders  were  forwarded  to 
Rheims,  and  the  wine,  invoiced  in  the  appellants' 
name,  was  packed  and  sent  direct  from  thence 
to  the  customer  at  his  expense  and  risk.  Pay- 
ments were  either  made  direct  to  the  appellants1 
or  to  the  London  firm,  who  remitted  the  amount 
to  the  appellants  without  carrying  it  to  any 
current  account.  Any  bill  drawn  for  payment 
of  wine  was  sent  to  the  London  firm  to  obtain 
the  acceptance  and  to  hold  for  the  appellants. 
Formal  receipts  were  sent  by  the  appellants  to 
purchasers  for  all  payments,  whether  made  direct 
or  through  the  London  firm.  The  London  firm 
were  paid  by  a  commission  on  all  wine  sold,  and 
the  appellants  alone  were  interested  in  the  gain 
or  loss  on  the  sales : — Held,  that  the  appellants 
exercised  a  trade  within  the  United  Kingdom 
within  Sched.  D.  of  16  &  17  Vict.  c.  34,  and  were 
assessable  to  the  income  tax  in  respect  of  the 
profits  arising  therefrom.  Werle  v.  Colquhoun, 
20  Q.  B.  D.  753 ;  57  L.  J.,  Q.  B.  323  ;  68  L.  T. 
756  ;  36  W.  R.  613  ;  52  J.  P.  644— C.  A. 

A  foreign  firm  of  wine  merchants,  whose  chief 
office  is  in  France  and  none  of  whom  are  resident 
in  England,  but  who  have  established  a  resident 
agent  in  London  through  whom  wine  is  sold  to, 
and  money  in  payment  for  it  received  from, 
English  customers,  are  assessable  to  the  income 
tax  under  Sched.  D.  in  respect  of  the  annual 
profits  or  gains  arising  from  a  trade  exercised 
within  the  United  Kingdom.  Pomnmry  v.  Ap- 
thorpe,  56  L.  J.,  Q.  B.  155 ;  56  L.  T.  24 ;  35  W. 
R.  307— D. 


b.  Assessment  and  Deductions. 

Coal  Mines — Dead  Rent  and  Royalties — Agree- 
ment to  repay  Royalties  overpaid.]  —  By  an 
agreement  for  a  lease  of  coal  mines  for  a  term  of 
years  from  March,  1874,  the  lessees  agreed  to 
pay  a  dead  rent  for  the  mines,  and  royalties  at 
specified  rates  per  ton  on  all  coal  worked  ;  the 
dead  rent  to  be  recoupable  out  of  royalties 
during  the  first  sixteen  years  of  the  term — the 
effect  being,  that  the  lessor  received  on  account 
of  his  share  of  the  profits  of  the  concern  not  less 
than  a  fixed  annual  sam ;  so  that  when  his  share 
of  the  royalties  did  not  amount  to  the  fixed  sum 
he  received  that  sum  ;  but  when  his  share  of  the 
royalties  exceeded  the  fixed  sum  he  received  that 
sum  only  until  the  lessees  had  been  reimbursed 
the  excess  paid  to  the  lessor  when  his  share  of 
the  royalties  did  not  amount  to  the  fixed  sum. 
The  lessees  worked  the  mines  for  the  first  time  in 
October,  1880,  having  paid  the  dead  rent,  less 
income  tax,  to  the  lessor  up  to  that  year.  Upon 
an  assessment  to  the  income  tax,  made  upon  the 
lessees  under  Sched.  D.  for  the  year  1881-2,  it 
appeared  that  the  lessor's  share  of  the  royalties 
for  that  year  had  exceeded  the  dead  rent  by  the 
sum  of  1,477/. : — Held,  that  in  estimating  the 
profits  of  the  concern  for  the  particular  year  for 
the  purpose  of  being  assessed  under  the  Income 
Tax  Acts,  the  lessees  were  not  entitled  to  deduct 
the  1,477J.  from  their  gross  profits.  Brougkton 
Coal  Company  v.  Kirkpatrick,  14  Q.  B.  D.  491 ; 

3  E 


1571 


REVENUE— Taxe±  and  Dirties. 


1572 


64  L.  J.,  Q.  B.  268 ;  33  W.  R.  278  ;  49  J.  P. 
119— D. 

Bant — Premium  lor  Lease.  ] — In  order  to  ascer- 
tain what  are  the  profits  and  gains  of  a  trade  for 
the  purposes  of  Sched.  D.  of  the  5  &  6  Vict.  c.  35, 
the  annual  expenditure — one  element  of  which 
is  the  rent— should  be  deducted  from  the  gross 
profits  and  gains.  Where  a  lessee  pays  a  ground- 
rent  of  2501.  per  annum,  having  already  paid 
34,0002.  as  a  premium  for  a  lease  of  twenty-two 
years,  he  has  no  right  to  deduct  one  twenty- 
second  part  of  the  premium  in  each  year,  although 
the  lease  sinks  in  value  as  every  year  is  cut  off 
from  it.  The  right  principle  is  to  deduct  nothing 
in  the  way  of  outlays  of  money  in  the  shape  of 
expenditure  of  capital  for  the  future  benefit  of 
the  estate,  but  only  what  may  be  called  current 
expenditure — that  is,  the  average  current  repairs 
for  a  period  of  three  years,  or  one  year  as  the 
case  may  be.  Oillatt  v.  Colquhown,  33  W.  K. 
25— D. 

Two  Businesses — Set-oft  J — A  seed-merchant 
taking  a  farm  and  working  it  in  connexion 
with  his  seed  business,  cannot  claim  any  allow- 
ance from  the  assessment  on  his  profits  as  seed- 
merchant  in  respect  of  losses  on  his  farm. 
Brown  v.  Watt,  50  J.  P.  583— Bx.  Scotland. 

Fart  of  Bank  Premises  used  asBwelling-houae 

by  Manager.]— By  5  &  6  Vict.  c.  39,  s.  100, 
first  rule,  first  case,  the  duties  under  Schedule 
D.  in  respect  of  any  trade  are  to  be  charged 
on  a  sum  not  less  than  the  full  amount  of 
the  balance  of  the  profits  of  the  trade  "  without 
other  deduction  than  is  hereinafter  allowed ; " 
and  by  the  first  rule  applicable  to  the  first 
and  second  cases  in  reference  to  such  duties, 
no  deduction  shall  be  allowed  for  "any  dis- 
bursements or  expenses  whatever,  not  being 
money  wholly  and  exclusivelyMaid  out  or  ex- 
pended for  the  purposes  of  such  trade,*1  &c.,  "  nor 
for  the  rent  or  value  of  any  dwelling-house,  &c., 
except  such  part  thereof  as  may  be  used  for  the 
purposes  of  such  trade  or  concern  not  exceeding 
the  proportion  of  the  said  rent  or  value  herein- 
after mentioned."  The  respondents,  a  banking 
company,  carried  on  their  business  in  buildings 
which  contained  accommodation  occupied  as  a 
dwelling-house  by  the  manager  or  resident 
agent :— Held,  that  the  respondents  were  entitled 
to  deduct  from  their  profits  before  returning 
them  for  assessment  under  Schedule  D.  the  annual 
value  of  the  whole  bank  premises,  including  the 
part  occupied  by  the  manager.  Russell  v.  Town 
and  County  Bank,  13  App.  Oas.  418;  58 
L.  J.,  P.  C.  8 ;  59  L.  T.  481  ;  53  J.  P.  244— 
H.  L.  (Be.) 

41  Annual  Value" — Tithe  Commutation  Bent* 
charge — Expenses  of  Collection.] — In  estimating 
the  "  annual  value  "  of  tithe  commutation  rent- 
charge  for  the  purpose  of  charging  the  owner 
thereof  with  property  tax  under  16  &  17  Vict, 
c.  34,  s.  32,  the  amount  necessarily  expended  by 
him  in  collection  of  the  tithe  rent-charge  must 
be  deducted.  Stevens  v.  Bishop,  20  Q.  B.  D. 
442 ;  57  L.  J.,  Q.  B.  283 ;  58  L.  T.  669 ;  36 
W.  B.  421 ;  52  J.  P.  548—0.  A. 

Cost  of  Embankment  to  protect  Lands  against 
Encroachment  of  Tidal  Kiver.J— By  the  Income 
Tax  Act,  1863  (16  &  17  Vict.  c.  84),  s.  37, 


in  charging  the  duty  under  Sched.  A  in  respect 
of  lands,  a  deduction  is  to  be  made  for  the 
amount  expended  by  the  owner  on  an  avenge 
of   the    twenty-one    preceding   years  in  the 
making  or  repairing  of  sea-walls  or  other  em- 
bankments "necessary  for  the  preservation  or 
protection  of  such  lands  against  the  encroach- 
ment or  overflowing  of  the  sea  or  any  tidal 
river.'1    The  appellant  was  assessed  in  the  in- 
come tax  under  Sched.  A.  in  respect  of  the 
annual  value  of  certain  lands.    These  lands  had, 
prior  to  1880,  been  salt  marshes  adjoining*  tidal 
river,  which  were  liable  to  be  flooded  at  every 
tide,  and  had  a  small  yearly  value  as  pasturage. 
The  appellant  began  in   1880  to  construct  an 
embankment  for  the  purpose  of  excluding  the 
water  from  these  lands,  which  was  complete  in 
1885,  and  the  lands  were,  by  the  construction  of 
such  embankment,  converted  into  valuable  in- 
closed lands,  of  much  greater  value  than  in  their 
previous  state  as  salt  marshes : — Held,  that  the 
appellant  was  not  entitled  to  any  deduction 
under  s.  37,  on  the  ground  that  the  embankment 
constructed  by  him  was  not  "  necessary  for  the 
preservation  or  protection  of  such  lands  againit 
the  encroachment  or  overflowing  of  the  sea  or 
any  tidal  river,"  within  the  meaning  of  the  sec- 
tion, inasmuch  as  the  section  did  not  apply  to 
embankments  made  for  the  improvement  of  the 
land  by  altering  its  condition,  but  only  to  em- 
bankments made  for  its  protection  or  preserva- 
tion in  its  existing  state.    Hesketh  v.  Bray,Z\ 
Q.  B.  D.  444  ;  57  L.  J.,  Q.  B.  683;  37  W.  R.»; 
53  J.  P.  133—0.  A.  Affirming  58  I*  T.  813— IX 


o.  Bepaymentof  Amount  overpaid. 


Time  within  which   Overpayment  mart  to 
proved— Certificates— Jurisdiction  of  OoaunU- 
sioners.]— By  5  &  6  Vict,   c.  35,  a  133,  "if 
within  or  at  the  end  of  the  year"  of  assess- 
ment any   person   charged   with   income  tax 
under  Sched.  D.  "  shall  find  and  shall  prove  to 
the  satisfaction  of  the  commiasioners  by  whom 
the   assessment    was    made    that   his  profits 
during  such  year  for  which   the  compeiauoit 
was  made  fell  short  of  the  sum  so  computed," 
&c.,  it  shall  be  lawful  for  the  said  comsns- 
sioners  to  cause  the  assessment  to  be  amended 
as  the  case  shall  require,  and,  in  case  the  sua 
assessed  shall  have  been  paid,  to  certify  under 
their  hands  to  the  commissioners  for  special  pur- 
poses the  amount  of  the  sum  overpaid  upon  each 
first  assessment,  and  thereupon  the  last-men- 
tioned  commissioners  shall  issue  an  order  for  the 
repayment  of  such  sum  as  shall  have  been  so 
overpaid,  <fec     An  English  company,  working 
mines  abroad,  made,  in  March,  1887,  an  applica- 
tion under  the  above  section  for  certificates  in 
respect  of  overpayments  of  income  tax  assessed 
on  profits   for   the   years  ending  respectively 
April  5, 1884,  and  April  5,  1885,  and  the  com- 
missioners by  whom  the  assessments  were  made 
having  inquired  into  the  case,  gave  them  certifi- 
cates under  the  section.    The  commissioners  for 
special  purposes  refused  to  issue  orders  for  re- 
payment on  such  certificates  on  the  ground  that 
they  were  made  without  jurisdiction,  the  com- 
pany not  having  found  and  proved  "  within  or 
at  the  end  of  the  year,"  as  required  by  the  sec- 
tion, that  their  profits  in  the  respective  years 
fell  short  of  the  sum  computed ; — Held,  that  the 


1678 


REVENUE— Taxes  and  Duties. 


1574 


certificates  given  were  valid ;  and  that  manda- 
mus lay  to  compel  the  commissioners  for  special 
purposes  to  issue  orders  for  repayment  of  the 
amounts  certified  to  be  overpaid.  The  expres- 
sion "  at  the  end  of  the  year  "  in  the  above  sec- 
tion does  not  mean  at  any  time  after  the  end  of 
the  year,  or,  on  the  other  hand,  within  any  limit 
of  time  generally  applicable,  but  as  soon  after 
the  end  of  the  year  as,  having  regard  to  the  cir- 
cumstances of  the  particular  case,  is  practicable 
by  the  use  of  due  exertions.  Beg.  v.  Income 
Jhx  Commissioner*,  21  Q.  B.  D.  318  ;  57  L.  J., 
Q.  B.  D.  513  ;  59  L.  T.  455  ;  36  W.  R.  776  ;  53 
J.  P.  84— C.  A. 

The  commissioners  by  whom  the  assessment 
was  made  are  given  by  the  section  jurisdiction 
finally  to  determine  whether  the  discovery  and 
proof  cf  the  profits  having  fallen  short  of  the 
sum  computed  has  been  made  within  the  period 
specified  in  the  section  as  above  interpreted. 
lb.,  per  Lord  Esher,  M.R. 

The  commissioners  by  whom  the  assessment 
was  made  having  granted  the  certificate  under 
the  section,  the  onus  of  showing  that  such  dis- 
covery and  proof  were  not  made  within  the 
period  above  mentioned,  and  that  the  certificate 
was  therefore  invalid,  rested  on  the  commis- 
skmen  for  special  purposes,  and  was  not  satisfied 
by  the  mere  met  of  the  application  for  the  cer- 
tificate not  having  been  made  before  the  date 
when  it  was  made  in  the  present  case.  lb.,  per 
Lindley,  L  J. 

How  obtained— Petition  of  Bight.]— A  land 
company  paid  debenture  interest  in  excess  of  the 
assessments  under  Schedule  A.,  deducted  income 
tax  from  the  interest,  and  returned  the  wholes 
amount  deducted  for  assessment  under  schedule 
D. : — Held,  that  a  petition  of  right  did  not  lie 
to  obtain  repayment  of  the  sum  paid  under 
Schedule  D.  Holborn  Viaduct  Land  Company 
v.  Beg.,  52  J.  P.,  341— Stephen,  J. 


5.  SUCCESSION    DUTY. 

Marriage  Settlement — Predecessor — Settlor— 
Bneesssor.] — An  indenture  of  marriage  settle- 
ment recited  that  the  father  of  the  intended 
husband  agreed  to  advance  and  give  to  his  son 
the  sum  of  60001.,  which  was  to  be  repaid  in  the 
event  of  the  marriage  not  taking  place.  It  was 
farther  recited  that  it  was  agreed  between  all  the 
parties  to  the  deed  that  certain  persons  (as 
trustees)  should  stand  possessed  of  the  sum  upon 
trust  for  the  father  until  the  intended  marriage 
should  be  solemnised ;  and  if  not  solemnised 
before  a  certain  day  therein  named  to  transfer 
the  same  to  the  father,  and  from  and  after  the 
solemnisation  of  the  marriage  upon  trust  to  pay 
the  income  to  the  husband  for  life,  and  from  and 
after  his  decease  to  pay  the  income  to  the  wife, 
should  she  survive  the  husband,  with  the  usual 
trusts  over  for  her  children.  The  husband 
having  died  and  the  widow  having  become 
entitled  to  the  income  of  the  said  sum,  the  com- 
missioners claimed  payment  of  succession  duty 
under  16  &  17  Vict  c.  51,  as  a  succession  derived 
from  the  father-in-law  as  the  predecessor : — 
Held,  that  the  father-in-law,  and  not  the  husband, 
was  the  "  predecessor  *'  or  settlor,  and  that  suc- 
cession duty  was  therefore  payable.  Attorney- 
General  v.  Maule,  56  L.  T.  611— D. 


Power  of  Appointment— Acceleration  of 

Succession  by  Extinction  of  prior  Interests.] — 
By  s.  15  of  the  Succession  Duty  Act,  1853  (16  & 
17  Vict.  c.  61),  "  where  the  title  to  any  succession 
shall  be  accelerated  by  the  surrender  or  extinc- 
tion of  any  prior  interests,  then  the  duty  thereon 
shall  be  payable  at  the  same  time  and  in  the 
same  manner  as  such  duty  would  have  been  pay- 
able if  no  such  acceleration  had  taken  place." 
By  a  marriage  settlement  the  trust  funds  were 
settled  upon  trust  to  pay  the  income  to  the 
husband  for  life,  and  upon  his  death  to  the  wife 
for  life  if  she  should  survive,  with  remainder  to 
the  children  of  the  marriage  as  the  husband  and 
wife  jointly,  or  the  survivor  of  them,  should 
appoint,  and  in  default  of  such  appointment  for 
the  children  who  should  attain  the  age  of  twenty- 
one,  or  die  leaving  issue  or  marry,  in  equal  por- 
tions. It  was  also  provided  that  it  should  be 
lawful  for  the  trustees  during  the  joint  lives  of 
the  husband  and  wife,  or  the  life  of  the  survivor, 
with  their,  his,  or  her  consent  in  writing,  and 
after  the  decease  of  both,  at  the  discretion  of  the 
trustees,  to  raise  and  apply,  or  dispose  of,  all  or 
any  part  of  the  then  expectant  part  or  share  of 
any  such  child  or  issue  whose  snare  should  not 
then  be  payable,  for  or  towards  the  preferment, 
advancement  or  benefit  of  such  child  or  issue. 
During  the  lives  of  the  tenants  for  life  portions 
of  the  trust  funds  were  appointed  and  paid  over 
to  the  children  by  the  trustees  under  the  power 
in  the  settlement : — Held,  on  the  death  of  the 
surviving  tenant  for  life,  that  as  to  the  appointed 
part  of  the  trust  fund,  there  had  been  an  accelera- 
tion of  the  title  to  the  succession  "  by  the  ex- 
tinction of  prior  interests  "  within  16  &  17  Vict, 
c.  51,  s.  15,  and  that  such  part  was,  equally  with 
the  unappointed  part,  subject  to  succession  duty. 
Sit  well,  Eos  parte,  Drury  Lowe's  Marriage 
Settlement,  In  re,  21  Q.  B.  D.  466  ;  59  L.  T.  539  ; 
37  W.  B.  238— D. 

Title  under  Will  or  by  Purchase— Predecessor.] 
— By  the  will  of  X.  ecclesiastical  leaseholds  for 
lives,  of  which  Y.'s  was  the  last,  were  settled 
upon  trusts  for  T.  for  life  and  over.  A.  having 
acquired  the  life  interest  of  Y.,  bought  the  rever- 
sion in  the  leaseholds  from  the  Ecclesiastical 
Commissioners,  and  had  been  held  to  have  pur- 
chased as  trustee  for  the  persons  entitled  under 
the  will  of  X.  Part  of  the  land  was  represented 
by  a  sum  paid  into  court  as  compensation  by  a 
public  body  which  had  taken  it  under  statutory 
powers.  After  the  death  of  T.  the  equitable 
interest  under  the  will  of  X.  had  become  vested 
absolutely  in  B.,  who,  after  satisfying  A.'s  lien 
for  purchase  money,  was  entitled  (inter  alia)  to 
the  fund  in  court : — Held,  that  B.'s  title  was, 
for  purposes  of  duty,  a  title  acquired  under  the 
will  and  not  by  purchase,  and  that  succession 
duty  was  payable  as  on  the  death  of  Y.  as  pre- 
decessor. Fryer  v.  Morland  (3  Ch.  D.  676)  dis- 
tinguished. De  Bechberg  v.  Beeton,  38  Ch.  D. 
192  ;  67  L.  J.,  Ch.  1090 ;  59  L.  T.  66 ;  36  W.  R. 
682— Chitty,J. 

"  Disposition  of  Property."]— By  deed  making 
provision  for  an  endowment  the  donor  cove- 
nanted that  he  or  his  executors  or  administrators 
after  his  death  would  transfer  certain  bank  stock 
and  certain  shares  into  the  names  of  trustees,  and 
by  another  deed  of  the  same  date  he  declared 
that  the  trustees  should  stand  possessed  of  the 
stock  and  shares  upon  trust  for  certain  charit- 

3  B  2 


1576 


KEVENUE— Taxes  and  Duties. 


1576 


able  purposes.  By  a  subsequent  deed  he  cove- 
nanted that  he,  or  his  executors  or  administrators 
after  his  death,  would  transfer  a  further  amount 
of  bank  stock  into  the  names  of  the  trustees,  and 
declared  that  they  should  stand  possessed  of  it 
on  the  same  trusts.  After  the  death  of  the  donor, 
his  executors  transferred  the  stock  and  shares 
into  the  names  of  the  trustees  : — Held,  that  the 
deeds  showed  a  "  disposition  of  property  "  within 
s.  2  of  the  Succession  Duty  Act,  1853  (16  &  17 
Vict,  c  51),  and  that  the  stock  and  shares  so 
transferred  were  chargeable  with  succession 
duty.  Higgins,  In  re  (31  Ch.  D,  142),  discussed. 
Attorney- General  v.  Montefiore,  21  Q.  B.  D.  461 ; 
59  L.  T.  534 ;  37  W.  R.  237— D. 

Incumbrances  created  or  incurred  by  Suc- 
cessor— Sinking  Fund.]  —  A.  devised  certain 
landed  estates  to  trustees  for  a  term  of  years, 
and  subject  thereto  upon  divers  limitations,  of 
which  the  following  alone  took  effect,  viz.:  to  B. 
for  life,  remainder  to  C.  for  life,  remainder  to  D. 
in  tail.  The  trusts  of  the  term  were,  out  of  the 
rents  and  profits,  to  keep  down  the  interest  on 
the  debts,  charges,  and  incumbrances  affecting 
the  said  estates  and  to  raise  out  of  the  rents  and 
profits  3,0002.  yearly,  to  be  applied  as  and 
when  a  sufficient  fund  should  have  been  thereby 
accumulated  in  the  discharge  of  the  principal 
moneys  due  in  respect  of  the  said  debts,  charges, 
and  incumbrances,  and  of  such  portion  of  the 
testator's  simple  contract  debts  as  were  by  his 
will  directed  to  be  paid  out  of  his  real  estate,  in 
case  his  personal  estate  should  be  insufficient. 
Upon  A. 'a  death  in  1841,  B.  went  into  possession 
of  the  estates,  as  tenant  for  life,  and  by  a  decree 
made  in  a  Chancery  suit  instituted  by  the  trus- 
tees of  the  will  against  B.  and  others,  B.  was 
directed  to  invest  the  surplus  rents,  after  pay- 
ment of  interest  and  other  outgoings,  in  3£  per 
cent  stock  (not  exceeding  3,0002.  yearly),  and 
transfer  the  same  from  time  to  time  to  the  credit 
of  the  cause.  B.  died  in  1855,  and  a  similar  de- 
cretal order  was  made  as  to  C,  the  next  tenant 
for  life,  in  a  supplemental  suit,  to  which  C.  and 
D.,  the  next  remaindermen  in  tail,  were  parties. 
Several  investments  and  transfers  were  made 
pursuant  to  the  said  orders,  and  the  sinking 
fund  so  formed  was  accumulated  in  accordance 
with  the  directions  in  A.'s  will  up  to  1863,  when 
C.  and  D.  barred  the  entail,  and  limited  the 
lands  to  such  uses  as  they  should  jointly  appoint ; 
and  C.  and  D.  afterwards  raised,  upon  mortgage 
of  the  said  lands,  a  sum  of  40,0002.,  which,  with 
the  exception  of  4,500Z.,  part  thereof,  which  was 
transferred  to  the  credit  of  the  Chancery  cause 
in  respect  of  the  sinking  fund,  was  paid  to  C,  to 
recoup  him  for  payments  made  for  the  benefit 
of  the  estates,  including  the  rebuilding  of  the 
mansion-house  and  other  permanent  improve- 
ments, adding  to  their  letting  value;  and  the 
landB  were  re-settled  to  the  use  of  C.  for  life, 
remainder  to  D.  for  life,  with  divers  remainders 
over,  subject  to  a  trust  term  to  raise  25,0002., 
when  required  by  C.  and  D.  and  to  apply  the  same 
as  they  should  direct.  C.  thenceforward  ceased 
to  keep  up  the  sinking  fund,  until  1877,  when 
the  arrears  thereof  amounted  to  42,0002.,  and  an 
agreement  was  made  between  C.  and  D.  provid- 
ing, amongst  other  things,  that  the  25,0002.  so 
charged  by  the  resettlement  should  be  released 
to  the  extent  of  20,0002.,  such  release  to  be 
taken  in  discharge  of  C.'b  liability  in  respect 
of  the  sinking  fund  up  to  20th  January,  1878, 


that  certain  sums  then  standing  to  the  credit 
of   the  fund  should   be  forthwith  applied  in 
discharge  of  incumbrances  affecting  the  inherit- 
ance, and  the  sinking  fund  should  be  thence- 
forward regularly  kept  up  by  C.    This  agree- 
ment was  sanctioned  by  the  court,  subject  to 
the  addition  of  certain  further  provisions,  and 
was  carried  out  by  deed.  C.  continued  to  keep  up 
the  sinking  fund  till  his  death  in  1883,  when  D. 
became  entitled  to  the  estates.    In  assessing  the 
succession  duty  payable  by  D.  the  Commissioners 
of  Inland  Revenue  disallowed  from  the  list  of 
incumbrances,  which    D.    claimed   to   deduct, 
45,0002.,  on  the  ground  that  incumbrances  to 
this  extent  would  have  been  paid  off  but  for  the 
suspension  of  the  sinking  fund  from  1863  to 
1878.    Upon  petition  by  D. :— Held,  that  the 
incumbrances  represented  by  this  sum  were  not 
created   or   incurred   by  D.,  within  the  34th 
section  of  the  Succession  Duty  Act,  and  that  he 
was    accordingly    entitled    to    the    deduction 
claimed.     O'Neill  (Lord),  In  re,  20  L.  B.,  Ir.  73 
— Ex.  D. 

Covenant  by  Settlor  to  pay  Sum  during  Lift 
or  after  Death,  "  free  from  all  Deductions  what- 
soever."]— A  covenant  by  A.  to  pay  to  trustees 
of  a  settlement  within  twelve  months  after  his 
death  the  sum  of  10,0002.  free  from  all  deduc- 
tions whatsoever,  is  satisfied  by  the  payment  by 
his  executors  of  a  sum  of  that  precise  amount, 
without  any  provision  being  made  for  the  dis- 
charge of  succession  duty.  Hi g gin*,  In  re,  2foy 
v.  Tumell,  31  Ch.  D.  142  ;  65  L.  J.,  Ch.  235 ;  54 
L.  T.  199  ;  34  W.  R.  81— C.  A. 

Such  duty,  being  by  s.  42  of  the  Succession 
Duty  Act  chargeable  on  the  interest  of  the 
successor,  is  payable  by  the  trustees  of  the 
settlement,  and  not  by  the  executors  of  the 
covenantor.    lb. 


6.  PROBATE  DUTY. 

Bealty  forming  part  of  Partnership  Assets- 
Conversion.] — The  shares  of  partners  in  realty 
forming  part  of  the  partnership  property  must 
be  regarded  as  personal  estate  in  the  absence 
of  any  binding  agreement  between  the  partners 
to  the  contrary ;  and  probate  dnty  is  payable 
on  a  deceased  partner's  share  in  such  realty 
irrespective  of  the  question  whether  or  not  there 
is  in  the  event  any  actual  conversion  into  per- 
sonalty. Cuetanee  v.  Bradshaw  (4  Hare,  315) 
discussed.  Attorney-  General  v.  Hubbuck,  13  Q.  B. 
D.  276 ;  53  L.  J.,  Q.  B.  146 ;  50  L.  T.  374— 
C.A. 

Freeholds— Conversion.]  —  Freehold  property 
which  is  by  the  doctrine  of  equitable  conversion 
to  be  considered  as  personalty,  is  chargeable 
with  probate  duty.  6unnf  In  good*  of,  9  P.  D. 
242 ;  53  L.  J.,  P.  107 ;  33  W.  R.  169 ;  49  J.  P. 
72 — Hannen,  P. 

Settlement — Covenant  to  bequeath  by  Will 
"the  Residue"  of  Settlor's  Estate  to  Trustees.] 
— By  indenture  of  settlement,  executed  upon 
his  marriage,  A.,  in  accordance  with  an  agree- 
ment in  that  behalf  recited  in  the  settlement, 
covenanted  that  he  would,  out  of  his  real  and 
personal  estate,  by  his  will  bequeath  to  the 
trustees  of  the  settlement  the  sum  of  20,0002. 


1577 


EEVENUE— Taxes  and  Duties. 


1578 


with  interest  at  4  per  cent  from  the  date  of  his 
death,  to  be  held  upon  certain  trusts  therein  de- 
clared, and  would  also  (subject  to  the  payment 
of  the  sum  of  20,000/.  and  interest,  and  of  his 
funeral  and  testamentary  expenses  and  debts) 
by  his  will  effectually  devise  and  bequeath  or 
appoint  to  the  trustees  the  whole  of  the  residue 
of  the  real  and  personal  estate  of  or  to  which 
he  should  be  seised  or  possessed,  or  entitled  at 
his  death,  to  be  held  upon  the  trusts  in  the  set- 
tlement declared.  A.,  by  a  codicil  to  his  will, 
bequeathed  to  the  trustees  of  his  settlement  the 
sum  of  20,000/.,  to  be  held  by  them  upon  the 
trusts  of  the  settlement,  and  he  left  and  be- 
queathed to  them  the  residue  of  his  real  and 
personal  property,  upon  the  trusts  in  the  settle- 
ment declared  as  to  such  residue  : — Held,  that 
the  amount  of  the  residue  of  A.'s  estate  did  not 
constitute  a  debt  due  by  him  at  his  death  under 
44  Vict,  c  12 ;  and  further,  that  the  residue 
formed  part  of  the  estate  and  effects  of  the  tes- 
tator A.,  and  was,  as  such,  subject  to  probate 
duty.  Attorney- General  v.  Murray,  20  L.  R., 
It.  124— C.  A. 

Lands  Purchased  by  Committee  of  Lunatic 
from  Accumulations  of  Personalty.]  —  The 
committees  of  a  lunatic,  acting  under  cer- 
tain orders  of  the  Lords  Justices  of  Appeal 
sitting  in  Lunacy,  invested  the  accumulations 
of  his  personal  estate  in  the  purchase  of  land. 
In  pursuance  of,  and  in  conformity  with,  these 
orders,  certain  lands  (the  price  for  which  was 
paid  out  of  the  accumulations  of  the  lunatic's 
{lersonal  estate)  were  conveyed  "  unto  and  to  the 
use  of  the  "  committees, "  their  heirs  and  assigns, 
for  ever,  upon  trust  for  "  the  lunatic,  "  his  execu- 
tors, administrators,  and  assigns ; "  and  certain 
powers  of  leasing  and  sale  were  given  to  the 
committees  ;  and  the  deed?  of  conveyance  con- 
tained a  declaration  that  the  lands  thus  bought 
should  be  considered  as  part  of  the  personal 
estate  of  the  lunatic,  but  they  contained  in  terms 
no  trust  for  sale : — Held,  that  the  value  of  the 
lands  thus  bought  was  part  of  the  lunatic's  per- 
sonal estate  and  effects  at  his  decease,  and  was 
liable  to  probate  duty.  Attorney- General  v. 
Ailesbury  (Marquis),  12  App.  Cas.  672  ;  57  L.  J., 
Q.  B.  83;  68  L.  T.  192;  36  W.  R.  737— 
H.  K  (B.) 

Incidence  of.] — A  married  woman  who  died 
on  the  13th  of  December,  1887,  leaving  a  husband 
and  three  children  surviving,  made  a  will  on  the 
7th  of  September,  1887,  in  exercise  of  a  power  of 
appointment,  and  appointed  executors.  The  will 
did  not  purport  to  dispose  of  any  other  property. 
At  her  death  she  was  entitled  to  separate  per- 
sonal estate  not  included  in  the  power.  Probate 
of  the  will  was  granted  under  the  Amended  Pro- 
bate Rules  of  April,  1887,  in  the  ordinary  form 
without  any  exception  or  limitation  : — Held, 
that  the  executors  were  trustees  for  the  husband 
of  the  undisposed-of  property,  and  that  the  pro- 
bate duty  and  the  costs  connected  with  probate 
ought  to  be  apportioned  rateably  between  the 
appointed  and  the  undisposed-of  property.  Lam- 
bert, In  re,  Stanton  v.  Lambert,  39  Ch.  D.  626  ; 
57  L.  J.,  Ch.  927  ;  59  L.  T.  429— Stirling,  J.  See 
also  Ourrie,  In  re,  infra. 


the  court  as  to  granting  a  mandamus  is,  that 
where  there  is  no  specific  remedy,  a  mandamus 
will  be  granted  that  justice  may  be  done.  A 
petition  of  right  is  such  a  remedy,  though  it 
depends  upon  the  fiat  of  the  attorney;general 
being  given.  Reg.  v.  Inland  Revenue  Commis- 
sioners, or  Nathan,  In  re,  12  Q.  B.  D.  461  ;  53 
L.  J.,  Q.  B.  229 ;  51  L.  T.  46  ;  32  W.  R.  543  ;  48 
J.  P.  452— C.  A. 

The  prosecutor  applied  for  a  mandamus  to  the 
defendants  to  return  excess  of  probate  duty, 
under  5  &  6  Vict.  c.  79,  s.  23.  Probate  duty  is 
paid  to  the  defendants  to  and  for  the  use  of  the 
crown,  and  when  received  it  is  handed  over  by 
them  to  the  crown.  The  defendants  had  declined 
to  return  the  duty  paid,  on  the  ground  that  they 
were  not  satisfied  of  the  lawfulness  of  the  claim  : 
— Held,  that,  assuming  the  claimant  to  be  en- 
titled to  some  remedy,  still  a  mandamus  ought 
not  to  issue,  for  that  there  was  a  specific  remedy 
by  petition  of  right,  inasmuch  as  the  money  was 
in  the  hands  of  the  crown.    lb. 


of —  Mandamus     to     Servants    of 
] — The  rule  governing  the  discretion  of 


7.  LEGACY  DUTY. 

Trust  not  Enforceable.] — A  devise  to  exe- 
cutors in  full  confidence,  but  without  imposing 
any  trust  or  obligation  enforceable  either  at  law 
or  in  equity  or  otherwise,  that  they  will  apply  a 
sum  of  money  in  a  particular  manner  does  not 
create  a  trust  upon  which  legacy  duty  is  pay- 
able.    Martineau,  In  re,  48  J.  P.  295— D. 

Bequest  when  free  from.] — A  gift  of  six 
months'  full  salary  is  not  a  gift  free  from  legacy 
duty.  Marcus,  In  re,  Marcus  v.  Marcus,  56 
L.  J.,  Ch.  830— North,  J. 

R.  by  will  gave  all  his  real  and  personal 
estate  to  trustees  upon  trust  for  sale  and  con- 
version, and  directed  them,  "out  of  the  pro- 
ceeds to  pay  to  S.,  until  she  shall  marry,  a  clear 
yearly  annuity  of  260/.,  and  after  her  marriage 
upon  trust  to  pay  to  the  said  S.  a  clear  yearly 
annuity  of  100/.  during  the  remainder  of  her 
natural  life."  The  testator  proceeded,  "And 
after  payment  of  the  said  annuity  of  250/.  or 
100/.,  as  the  case  may  be,  out  of  the  net  moneys 
to  arise  as  aforesaid,  upon  trust  to  pay  E.  a 
clear  yearly  sum  of  31/.  4*.,  free  of  legacy 
duty."  This  was  a  summons  taken  out  by  the 
trustees  for  the  determination  of  the  question 
whether  S.'s  annuity  was  given  free  of  legacy 
duty  : — Held,  that  the  words  "  clear  yearly 
annuity  "  properly  mean  an  annuity  free  from 
legacy  duty,  and  this  meaning  could  not  be  cut 
down  by  the  fact  that  in  another  case  the 
testator  had  added  the  words  "free  of  legacy 
duty."  Robins,  In  re,  Nelson  v.  Robins,  58  L.  T. 
382— North,  J. 

A  testatrix,  after  haying  bequeathed  various 
pecuniary  legacies,  and  also  legacies  of  specific 
chattels,  directed  that  "  all  the  legacies  left  by 
my  will  and  codicil  be  paid  free  of  legacy  duty  M  : 
— Held  that  the  legacy  duty  was  to  be  paid  out 
of  the  estate  on  all  legacies  as  well  pecuniary 
as  specific,  the  word  "  paid  "  not  being  sufficient 
under  the  circumstances  to  cut  down  the  direc- 
tion to  pecuniary  legacies  only.  Ansley  v.  Cotton 
(16  L.  J.,  Ch.  55)  discussed  and  followed.  John- 
ston, In  re,  Coekerell  v.  Earl  of  Essex,  26  Ch.  D. 
538  ;  53  L.  J.,  Ch.  645  ;  62  L.  T.  44  ;  32  W.  R . 
634— Chitty,  J. 


1579 


SALE— Of  Good*. 


1580 


Deficient  Sf tate— Abatement  of  An- 
nuities.]— When  a  testator's  estate  is  insufficient 
(after  payment  of  his  debts')  to  pay  in  full  an- 
nuities given  by  his  will,  the  fund  must  (after 
payment  of  costs)  be  apportioned  between  the 
annuitants  in  the  proportion  which  the  sum 
composed  of  the  arrears  of  the  annuity  in  each 
case  plus  the  present  value  of  the  future  pay- 
ments bear  to  each  other,  and  this  rule  applies 
in  a  case  in  which  the  annuitants  are  all  living 
at  the  time  of  distribution.  A  testator  gave  an 
annuity  of  150/.  to  his  widow,  and  an  annuity 
of  1002.  to  a  stranger  in  blood,  and  he  directed 
that  the  second  annuity  should  be  paid  free  of 
legacy  duty,  which  should  be  paid  out  of  his  estate. 
After  payment  of  his  debts,  the  estate  was  in- 
sufficient to  pay  the  annuities  in  full : — Held, 
that  (after  payment  of  costs)  the  fund  must  be 
apportioned:  as  above  between  the  two  annuitants ; 
that  the  legacy  duty  payable  on  the  sum  ap- 
portioned to  the  second  annuitant  must  be 
deducted  from  the  whole  fund,  and  the  balance 
then  divided  in  the  same  proportion  between  the 
two  annuitants.  Heath  v.  Nugent  (29  Beav. 
266)  followed.  Wilkin,  In  re,  Wilkins  v. 
Rothcrham,  27  Ch.  D.  703  ;  54  L.  J.,  Ch.  188  ; 
33  W.  R.  42— Pearson,  J. 

Incidence  of.]— Testatrix,  in  exercise  of  a 
general  power  of  appointment,  made  several  ap- 
pointments of  (in  each  case)  "so  much  and  such 
part  of  "  the  said  trust  in  funds  as  should  be  of 
the  "  clear  "  value  of  a  specified  sum  of  money 
in  each  case,  and  lastly  made  an  appointment 
of  "all  the  residue"  of  the  said  trust  funds. 
The  will  disposed  of  no  other  property  except 
that  subject  to  the  power,  ana  contained  no 
direction  for  payment  of  testamentary  expenses, 
probate  or  legacy  duty : —  Held,  that  the 
testamentary  expenses  and  probate  duty,  and 
the  legacy  duty  on  the  specified  portions  of  the 
trust  funds,  must  be  paid  out  of  that  part  of  the 
trust  funds  which  was  lastly  appointed  as 
residue.  Carrie,  In  re,  Bjorkntan  v.  Kimber- 
ley  (Lord),  67  L.  J.,  Ch.  743  ;  59  L.  T.  200  ;  36 
W.  R.  752— Kay,  J. 


REVERSION. 

Sale  of,  Betting  aside  —  Undervalue.] 
Unconscionable  Bargain. 


—  See 


REVISING  BARRISTER. 

See  ELECTION  LAW. 


REVIVOR. 

See  PRACTICE,  ante,  col.  1402: 


RIVER. 


See  WATER. 
Fishing  in.]— See  Fish  and  Fishery. 


ROAD. 


In  Metropolis.]— &*  Metropolis. 

In  Urban  or  Bural  Districts.]— See  Health. 

In  other  Places.]— See  Wat. 


SAILOR. 

See  SHIPPING. 


SALE. 

I.  Op  Goods. 

1.  The  Contract,  1580. 

2.  Property  in  the  Good*,  1582. 

3.  Breach  of  Contract,  1583. 

4.  Warranties,  1584. 

5.  Stoppage  in  Transitu.  1585. 

6.  Measure  of  Damages— See  DAMAGES, 

II.  Sales  bt  Auction,  1588. 

III.  Of  Ships— See  Shipping. 

IV.  Of  lAsv—See  Vendor  and  Purchases. 
V.  Of  Food— See  Health. 

VI.  In  Market  Overt— See  Market. 

I.  OF  GOODS. 

1.  The  Contract. 

Statute  of  Frauds— What  within,  j— A  con* 

tract  by  an  artist  with  a  picture  dealer  to  paint 
a  picture  of  a  given  subject  at  an  agreed  price, 
ifi  a  contract  for  the  sale  of  a  chattel.  Isaacs  v. 
Hardy,  1  C.  <fc  E.  287— Matfaew,  J. 

Beeeipt  and  Acoeptanee.] — Where  nods 

of  the  value  of  10Z.  or  upwards  are  sold  oy  a 
verbal  contract  and  delivered,  and  the  purchaser 
retains  them, and  deals  with  them  in  such  away 
as  to  prove  that  he  admits  the  existence  of  a 
contract,  and  admits  that  the  goods  were 
delivered  under  the  contract,  this  is  a  sufficient 
acceptance  to  satisfy  s.  17  of  the  Statute  of 
Frauds,  although  the  purchaser  afterwards 
rejects  the  goods  on  the  ground  that  they  are 
1  not  equal  to  sample,  and  if  the  goods  prove 
J  equal  to  sample  the  purchaser  is  liable.    P*f*  v. 


1581 


SALE— Of  Goods. 


1582 


Mergan,  15  Q.  B.  D.  228 ;  64  L.  J.,  Q.  B.  434  ; 
63  L.  T.  126  ;  33  W.  B.  793— C.  A. 

Memorandum  in   Auctioneer's  Book  — 

Bagittration— Bill  of  Sale.]— See  Robert*,  In  re, 
post,  coL  1588. 

F.  0.  B.— Meaning  of.] — If  the  goods  dealt 
with  by  the  contract  are  specific  goods,  the  words 
"  free  on  board,"  according  to  the  general  under- 
standing of  merchants,  mean  that  the  shipper  is 
to  put  them  on  board  at  his  expense  on  account 
of  the  person  for  whom  they  are  shipped,  and  I 
can  see  no  reason  why  a  person  should  not  agree 
to  sell  so  much  out  of  a  bulk  cargo  on  board  or 
ex  such  a  ship  upon  the  terms  that  if  the  cargo 
be  lost  the  loss  shall  fall  upon  the  purchaser  and 
not  npon  the  seller.  Where  the  terms  "  free  on 
board"  are  used  in  such  a  contract,  the  same 
meaning  must  be  given  to  them  as  is  given  to 
them  with  regard  to  goods  attributed  to  the 
contract.  Stock  v.  InglU,  12  Q.  B.  D.  573  ;  53 
L  J.,  Q.  B.  356  ;  51  L.  T.  449  ;  5  Asp.  M.  C.  294 
—Per  Brett,  M.  B. 

Payment  in  Exchange  for  Bills  of  Lading — 
Sots  of  Throe— Tender  —  Bight  of  Vendee  to 
rejeotw] — Where  by  the  terms  of  the  contract  of 
sale  of  goods  to  be  shipped,  payment  is  to  be 
made  in  exchange  for  bills  of  lading  of  each 
shipment,  the  purchaser  is  bound  to  pay  when  a 
duly-indorsed  bill  of  lading,  effectual  to  pass  the 
property  in  the  goods,  is  tendered  to  him,  although 
the  bill  of  lading  be  drawn  in  triplicate,  and  all 
the  three  are  not  then  tendered  or  accounted  for ; 
and,  if  he  refuses  to  accept  and  pay,  he  does  so 
at  his  own  risk  as  to  whether  it  may  turn  out  to 
be  the  fact  or  not  that  the  bill  of  lading  tendered 
was  an  effectual  one,  or  whether  there  was  another 
of  the  set  which  had  been  so  dealt  with  as  to 
defeat  the  title  of  the  purchaser  as  indorsee  of 
the  one  tendered.  Sanders  v.  Maclean,  11  Q.  B. 
D.  327 ;  52  L.  J.,  Q.  B.  481  ;  49  L.  T.  462 ;  31 
W.  B.  698 ;  5  Asp.  M.  C.  160— C.  A. 

Per  Brett,  M.  B. :  The  seller  of  such  goods 
should  make  every  reasonable  exertion  to  forward 
the  bills  of  lading  to  the  purchaser  as  soon  as 
possible  after  the  shipment,  but  there  is  no  im- 
plied condition  in  Buch  a  contract  that  the  bills 
of  lading  shall  be  delivered  to  the  purchaser  in 
time  for  him  to  send  them  forward  so  as  to  be  at 
the  port  of  delivery  either  before  the  arrival  of 
the  vessel  with  the  goods,  or  before  charges  are 
incurred  there  in  respect  of  them,    lb. 


Handing  Bill  of  Exchange  with  Bill  oi 
lon-aoeeptanoe— Conversion  of  Goods — Measure 
of  Damages.] — A  shipload  of  timber  having  been 
consigned  to  the  defendants,  the  consignor  sent 
the  bill  of  lading  aad  other  shipping  documents, 
and  also  a  bill  of  exchange,  to  the  plaintiffs,  in 
pursuance  of  the  usual  course  of  business  between 
him  and  them,  to  cover  certain  advances  which 
they  from  time  to  time  made  to  him.  The  plain- 
tiffs placed  the  shipping  documents  and  bill  of 
exchange  relating  to  the  eargo  of  timber  in  the 
bands  of  agents  who  acted  between  the  plain- 
tiff and  the  defendants.  The  agents  at  the  re- 
quest of  the  plaintiffs  forwarded  the  documents 
to  the  defendants,  in  order  to  have  the  bill  of 
exchange  accepted  by  them.  Shortly  afterwards 
the  defendants  informed  the  agents  that  the 
eargo  was  thoroughly  out  of  condition,  and  that 
they  could  not  take  it  in  its  then  state.    The 


agents  replied  that,  unless  the  defendants  re- 
turned the  bill  of  exchange  accepted,  they  ought 
to  send  back  the  shipping  documents.  This  the 
defendants  declined  to  do,  as  they  had  paid 
part  of  the  freight,  and  intended  to  take  posses- 
sion of  the  cargo.  Later  on  they  stated  that 
they  had  been  compelled  to  remove  the  cargo 
under  the  rules  of  the  dock  company,  but  that, 
if  the  agents  would  repay  them  the  freight  and 
certain  charges,  and  their  profits  on  a  portion  of 
the  cargo  which  they  had  sold,  they  would  return 
the  documents.  The  agents  replied  that  the 
matter  must  be  left  in  the  hands  or  the  plaintiffs, 
the  owners  of  the  cargo.  The  defendants  then 
returned  to  the  agents  the  bill  of  exchange  un- 
accepted, but  retained  the  bill  of  lading  as 
security  against  freight  and  charges.  They 
offered  to  yield  up  the  bill  of  lading  on  the  freight 
and  charges  being  refunded.  Thereupon  the 
plaintiffs  commenced  an  action  against  the  de- 
fendants, asking  that  they  might  be  ordered  to 
accept  and  deliver  up  the  bill  ofexchange  ;  and 
that  it  might  be  declared  that,  until  such  accep- 
tance and  delivery,  the  defendants  were  not 
entitled  to  retain  the  bill  of  lading.  They  also 
asked  for  an  injunction, a  receiver,  and  damages. 
Owing  to  delay,  caused  by  the  fault  of  both 
parties,  the  action  did  not  come  on  for  hearing 
until  about  four  years  after  its  commencement : 
Held,  that  the  defendants,  having  refused  to 
accept  the  bill  of  exchange,  were  bound  to  have 
returned  the  shipping  documents,  which  were 
only  at  their  disposal  on  the  condition  that  they 
should  so  accept  the  bill ;  and  that  they  wrong- 
fully took  possession  of  the  cargo,  and  dealt  with 
it  as  its  owners,  although  they  had  repudiated 
the  contract,  and  refused  to  accept  the  bill  of 
exchange,  availing  themselves  of  the  bill  of 
lading,  which  they  had  no  right  whatever  to  re- 
tain or  make  use  of,  to  get  that  possession : — Held, 
therefore,  that  the  plaintiffs  were  entitled  to 
damages  against  the  defendants  :  that  the  proper 
measure  of  damages  was  the  value  of  the  cargo 
after  making  a  deduction  for  freight ;  but  that 
none  of  the  other  charges  claimed  by  the  defen- 
dants could  be  allowed,  except  outgoings  in  con- 
nexion with  the  sale  of  part  of  the  cargo : — 
Held  also,  that  defendants  must  pay  damages, 
in  the  nature  of  interest,  for  keeping  the  plain- 
tiffs out  of  possession  of  their  goods  ;  that  the 
ordinary  measure  of  such  damages  would  be  5 
per  cent,  on  the  value  of  the  cargo  from  the 
time  the  defendants  wrongfully  took  possession 
thereof ;  but  that,  having  regard  to  the  delay 
which  had  occurred  in  bringing  the  action  on  for 
hearing,  attributable  no  less  to  the  plaintiffs 
than  the  defendants,  half  damages,  computed  at 
the  rate  of  2)  per  cent,  only,  would  be  awarded. 
Rew  v.  Payne,  53  L.  T.  932  ;  5  Asp.  M.  G.  515— 
Kay,  J. 

Personal  Liability  of  Broker.]  —  See  PfciN 
cipal  and  Agent,  II. 

Bights  of  Vendor  and  Adminiatratrix.]— See 

Evans,  In  re,  ante,  col.  777. 


2.  Pbopebty  in  the  GooDa 

Appropriation— Goods  in  Bulk.]— Where,  after 
a  sale  of  60,000  bricks,  part  of  a  bulk  of  117,000, 
the  seller  had  applied  all  but  62,000  for  other 
purposes,  and  was  still  using  them,  when  seized 


1688 


SALE— Of  Goods. 


1684 


in  execution : — Held,  there  was  no  appropriation 
of  any  part  of  the*t60,000  to  the  sale.  Snell  v. 
Heighton,  1  C.  &  E.  95— Grove,  J. 

Property  passing  under  Bill  of  Lading.]— The 
mere  indorsement  and  delivery  of  a  bill  of  lading 
by  way  of  pledge  for  a  loan  does  not  pass  "  the 
property  in  the  goods  "  to  the  indorsee,  so  as  to 
transfer  to  him  all  liabilities  in  respect  of  the 
goods  within  the  meaning  of  the  Bills  of  Lading 
Act  (18  &  19  Vict.  c.  Ill),  s.  1.  Sewell  v.  Bur- 
dicK  10  App.  Cas.  74 ;  54  L.  J.,  Q.  B.  156 ;  52 
L.  T.  445  ;  33  W.  R.  461  ;  5  Asp.  M.  C.  376— 
H.  L.  (E.). 

Sight  of  Trustee  in  Bankruptcy  to  Articles  in 
Course  of  Manufacture.]— &*?  ante,  col.  133. 

Revesting  of  Property  on  Conviction — Goods 
obtained  by  False  Pretences.]—  See  Market. 

Materials  used  in  Construction  of  Railway — 
Goods  Delivered  but  not  Fixed.]— See  Banbury 
and  Cheltenham  Railway  v.  Daniel,  ante,  col. 
1542. 

3.  Breach  of  Contract. 

Monthly  Deliveries — Hon-payment  for  one 
Delivery  —  Repudiation,]  —  The  respondents 
bought  from  the  appellant  company  5,000  tons 
of  steel  of  the  company's  make,  to  be  delivered 
1,000  tons  monthly,  commencing  January,  1881, 
payment  within  three  days  after  receipt  of 
shipping  documents,  in  January  the  company 
delivered  part  only  of  that  month's  instalments, 
and  in  the  beginning  of  February  made  a  further 
delivery.  On  the  2nd  February,  shortly  before 
payment  for  these  deliveries  became  due,  a  peti- 
tion was  presented  to  wind  up  the  company. 
The  respondents,  bona  fide,  under  the  erroneous 
advice  of  their  solicitor  that  they  could  not, 
without  leave  of  the  court,  safely  pay  pending 
the  petition,  objected  to  make  the  payments 
then  due  unless  the  company  obtained  the 
sanction  of  the  court,  which  they  asked  the 
company  to  obtain.  On  the  10th  February  the 
company  informed  the  respondents  that  they 
should  consider  the  refusal  to  pay  as  a  breach 
of  contract,  releasing  the  company  from  any 
further  obligations.  On  the  15th  February  an 
order  was  made  to  wind  up  the  company  by 
the  court.  A  correspondence  ensued  between 
the  respondents  and  the  liquidator,  in  which 
the  respondents  claimed  damages  for  failure  to 
deliver  the  January  instalment,  and  a  right  to 
deduct  those  damages  from  any  payments  then 
due ;  and  said  that  they  always  had  been  and 
still  were  ready  to  accept  such  deliveries  and 
make  such  payments  as  ought  to  be  accepted 
and  made  under  the  contract,  subject  to  the 
right  of  set-off.  The  liquidator  made  no  further 
deliveries,  and  brought  an  action  in  the  name  of 
the  company  for  the  price  of  the  steel  delivered. 
The  respondents  counter-claimed  for  damages 
for  breaches  of  contract  for  non-delivery: — 
Held,  that,  upon  the  true  construction  of  the 
contract,  payment  for  a  previous  delivery  was 
not  a  condition  precedent  to  the  right  to  claim 
the  next  delivery  ;  that  the  respondents  had  not 
by  postponing  payment  under  erroneous  advice, 
acted  so  as  to  show  an  intention  to  repudiate 
the  contract,  or  so  as  to  release  the  company 
from  further  performance.    Mersey  Steel  and 


Iron  Company  v.  Naylor,  9  App.  Cas.  434 ;  53 
L.  J.,  Q.  B.  497  ;  51  L.  T.  637  ;  32  W.  R.  98S- 
H.  L.  (E.). 

Bight  to  rejeet  when  inferior  to  Contract - 
Custom.] — A  vendor  cannot  compel  a  purchaser 
to  accept  goods  inferior  in  quality  to  that  con- 
tracted for,  where  no  property  in  the  goods  has 
passed  or  the  sale  is  not  of  a  specific  cargo.  No 
custom  exists  in  the  Liverpool  corn  trade  com- 
pelling the  buyer  to  accept  under  such  circum- 
stances, and  quaere  as  to  the  reasonableness  of 
such  a  custom.  Sinidino  v.  Kitchen,  1  C.  fc  B. 
217 — Hawkins,  J. 


4.  Warranties. 

Bale  of  Hone — Condition  for  Return— Hor» 
disabled  — Implied  Condition.]  — The  plaintiff 
bought  a  horse  of  the  defendant  warranted  quiet 
to  ride.  One  of  the  conditions  of  the  contract 
was  to  the  effect  that  if  the  buyer  contended 
that  the  horse  did  not  correspond  with  the 
warranty  it  must  be  returned  on  the  second 
day  after  the  sale,  and  that  the  non-return 
within  the  time  limited  should  be  a  bar  to 
any  claim  on  account  of  any  breach  of  warranty. 
The  horse  was  removed  by  the  plaintiff,  and 
while  being  ridden  fell,  and  was  so  injured  that 
it  could  not  safely  be  returned  on  the  second 
day  after  the  sale,  but  the  plaintiff  gave  notice 
to  the  defendant  on  that  day  that  the  animal 
was  not  according  to  warranty,  and  was  unfit  to 
travel : — Held,  that,  under  these  circumstances, 
the  non-return  of  the  horse  within  the  period 
stipulated  by  the  condition  was  no  bar  to  an 
action  for  breach  of  the  warranty.  Chapman  v. 
Withers,  20  Q.  B.  D.  824  ;  57  L.  J.,  Q.  B.  457 ;  Si 
W.  R.  29— D. 

Implied— Bale  of  Chain-Cable  untested  aid  la- 
stamped.] — In  every  case  of  a  contract  for  the 
sale  of  a  chain-cable,  whether  for  use  on  a 
British  ship  or  not,  there  is  an  implied  warranty 
that  it  has  been  properly  tested  and  stamped  in 
accordance  with  the  acts.  Hall  v.  B  Mine  htm, 
54  L.  T.  387 ;  34  W.  R.  122  ;  5  Asp.  M.  G.  538 
— D. 

Contract  to  manufacture  Goods  equal  te 

Sample  —  Caveat   emptor  —  Latent    Defect]  — 

Cloth-merchants  ordered  of  cloth  manufactures 
worsted  coatings  which  were  to  be  in  quality 
and  weight  equal  to  samples  previously  furnished 
by  the  manufacturers  to  the  merchants.  The 
object  of  the  merchants  was,  as  the  manu- 
facturers knew,  to  sell  the  coatings  to  clothiers 
or  tailors.  The  coatings  supplied  corresponded 
in  every  particular  with  the  samples,  but  owing 
to  a  certain  defect  were  unmerchantable  for 
purposes  for  which  goods  of  the  same  general 
class  had  previously  been  used  in  the  trade. 
The  same  defect  existed  in  the  samples,  bnt  was 
latent  and  was  not  discoverable  by  due  diligence 
upon  such  inspection  as  was  ordinary  and  usual 
upon  sales  of  cloth  of  that  class : — Held,  that 
upon  such  a  contract  there  was  an  implied 
warranty  that  the  goods  should  be  fit  for  use  in 
the  manner  in  which  goods  of  the  same  quality 
and  general  character  ordinarily  would  be  used. 
Mody  v.  Grepson  (4  L.  R.  Ex.  49)  approved. 
Drummond  v.  Van  Ingen,  12  App.  Cas.  284; 


1586 


SALE— Of  Goods. 


1586 


56  L.  J.,  Q.  B.  563  ;  57  L.  T.  1  :  36  W.  R.  20— 
H.  L.  (E.) 

Rile— Bale   of  Government    Bonds.] — The 

gOYernment  of  the  United  States  in  1865  issued 
bonds  payable   to   bearer,  redeemable  at  the 
pleasure  of  the  government,  after    1870,  and 
payable,  at   all   events,   in    1885.    When    the 
gOYernment  wished    to  redeem    any  of    these 
boods,  they  gave  notice  to  holders  by  public 
notification  that  they  would  be  paid  on  presen- 
tation.   After  such  notice,  the  bonds  notified 
were  called  "  Called  Bonds."    These  bonds  are 
dealt  in  in  England  for  the  purpose  of  making 
remittances  to  America.    The  course  of  business 
is  for  the  seller  to  supply  the  buyer  with  bonds 
or  coupons  of  railway  companies,  &c,  payable  in 
America  at  an  agreed  price,  no  particular  bonds 
or  coupons  being  specified.     It  was  proved  that 
whenever  default  was  made  in  payment  of  the 
coupons  in  America,  the  seller   returned   the 
money  paid  for  them,  but  no  evidence  was  given 
d  any  case  in  which  payment  of  a  bond  had 
been  refused.    A.  sold  to  B.  in  accordance  with 
the  above  course  of  business  certain  "  Called 
Bonds,"  which  had  been  originally  stolen  from 
American  holders,  and  payment  to  B.  of  the 
bonds  was  refused  by  the  American   govern- 
ment:— Held,  that  there  was  an  implied  war- 
ranty of  title  on  the  sale  by  A.  to  B.,  and  that 
B.  was  entitled  to  recover  from  A.  the  price  paid. 
Raphael  v.  Burt,  1  C.  &  B.  325— Stephen,  J. 


5.  Stoppage  in  Transitu. 

Goods  Sought  for  Shipment  Abroad — Delivery 
of  Goods  on  board  Ship — Termination  of  Transit.  ] 
—Goods  having  been  purchased  by  merchants 
in  London  of  manufacturers  in  Wolverhampton, 
tbe  purchasers  wrote  to  the  vendors  asking  them 
to  consign  the  goods  "  to  the  *  Darling  Downs/ 
to  Melbourne,  loading  in  the  East  India  Docks." 
The  goods  were  accordingly  delivered  by  the 
vendors  to  carriers  to  be  forwarded  to  the  ship. 
The  vendors    being  subsequently  informed  of 
the  purchaser's  insolvency  gave  notice  to  the 
carriers  to  stop  the  goods,  but  too  late  to  prevent 
their  shipment  on  board  the  "  Darling  Downs." 
The  ship  sailed  with  the  goods  on  board  for 
Melbourne,  bat  before  she  arrived  the  vendors 
claimed  the  goods  from  the  shipowners  as  their 
property  : — Held,  that  the  transit  was  not  at  an 
end  till  the  goods  reached  Melbourne,  and  there- 
fore that  the  vendors  had  till  then  a  right  to 
stop  them  in  transitu.     Bethell  v.  Clark,  20 
<lB.D.  615  ;  57  L.  J.,  Q.  B.  302  ;  59  L.  T.  808  ; 
36  W.  R.  611— C.  A.    Affirming  6  Asp.  M.  C.  194 
— D. 


Goods  Bought  by  Commission  Agent  in  England 
ltr  foreign  Principal.  ] — A  commission  agent  in 
London  was  employed  by  merchants  at  Kings- 
ton, Jamaica,  to  buy  goods  for  them  in  England. 
He  ordered  the  goods  of  tbe  manufacturers  "  for 
this  mark,1'  there  being  in  the  margin  of  the 
letter  which  gave  the  order  a  mark  consisting  of 
two  letters,  with  "  Kingston,  Jamaica,"  added. 
The  manufacturers  knew  from  previous  dealings 
that  this  mark  had  been  used  by  the  Jamaica 
fan.  The  goods  were  to  be  paid  for  by  six 
months'  bills  drawn  by  the  manufacturers  on 
the  commission  agent  and  accepted  by  him. 
On  the  11th  of  September  the  commission  agent 


wrote  to  the  manufacturers,  telling  them  to  pack 
the  goods  and  mark  them  with  the  mark  pre- 
viously mentioned,  and  to  forward  them  to 
specified  shipping  agents  at  Southampton,  for 
shipment  by  a  particular  ship,  "  advising  them 
with  particulars  for  clearance."  On  the  13th 
September,  the  manufacturers  sent  the  invoice 
of  the  goods  to  the  commission  agent,  telling 
him  that  they  had  that  day  forwarded  the  goods 
by  railway  to  the  shipping  agents  "  with  the 
usual  particulars  for  clearance. "  The  same  day 
the  manufacturers  wrote  to  the  shipping  agents, 
sending  them  the  particulars  of  the  goods,  and 
adding,  ''which  please  forward  as  directed."' 
The  particulars  described  the  goods  as  marked 
with  the  letters  originally  given  by  the  commis- 
sion agent,  and  the  words  "  Kingston,  Jamaica," 
and  numbered  with  specified  numbers,  but  the 
columns  for  "  consignee  "  and  "  destination  " 
were  left  in  blank.  The  cost  of  the  carriage  to 
Southampton  was  paid  by  the  manufacturers. 
On  the  14th  of  September  the  commission  agent 
sent  to  the  shipping  agents  particulars  of  the 
goods,  giving  the  name  of  the  Jamaica  firm  as 
consignees,  and  stating  the  destination  of  the 
goods  to  be  Kingston,  Jamaica.  The  goods  were 
shipped  on  board  the  vessel,  the  bills  of  lading 
describing  the  commission  agent  as  consignor, 
and  the  Jamaica  firm  as  consignees.  After  the 
ship  had  sailed,  but  before  her  arrival  at  Jamaica, 
the  commission  agent  stopped  payment,  and  the 
manufacturers,  who  had  not  been  paid  for  the 
goods,  gave  notice  to  the  shipowners  to  stop  them 
in  transitu  : — Held,  that,  as  between  the  com- 
mission agent  and  the  manufacturers,  the  transit 
was  at  an  end  when  the  goods  arrived  at  South- 
ampton, and  that  the  notice  to  stop  was  given 
too  late.  Watson,  Ex  parte  (5  Ch.  D.  35),  dis- 
tinguished. Miles,  Ex  parte,  Isaacs,  In  re,  15 
Q.  B.  D.  39  ;  54  L.  J.,  Q.  B.  566— C.  A. 


Purchase  by  Agent  in  England  for  Foreign 
Principal  —  Dolivery  on  Principal's  Vessel  — 
Mate's  Beceipts.J — B.  and  S.,  acting  as  agents  in 
England  for  a  foreign  principal,  purchased  from 
F.  &  Co.,  in  England,  cement  for  the  New 
York  market ;  the  cement  was  ordered  to  be 
sent  alongside  a  veseel  which  B.  and  S.  had  pur- 
chased for  their  principal,  and  was  shipped  on 
board  that  vessel ;  mate's  receipts  for  the  cement 
were  taken  by  F.  &  Co.  and  handed  on  to  B. 
and  S.,  who  exchanged  them  for  bills  of  lading 
in  which  B.  and  S.  were  stated  to  be  the  shippers, 
and  which  made  the  goods  deliverable  to  the 
order  of  B.  and  S.  B.  and  S.  gave  all  necessary 
directions  as  to  the  destination  of  the  goods  and 
the  sailing  of  the  vessel.  While  the  vessel  was 
on  its  way  to  New  York,  B.  and  S.  became  bank- 
rupt, and  F.  &  Co.  claimed  as  unpaid  vendors 
to  stop  the  cement  in  transitu.  F.  &  Co.  knew 
not  only  that  the  vessel  belonged  to  B.  and  S.'s 
principal,  but  also  that  the  cement  was  bought 
by  B.  and  S.  for  that  principal : — Held,  that  F. 
&  Co.  were  not  entitled  to  stop  the  cement  in 
transitu.  Francis,  Ex  parte,  Bruno,  In  re,  6ft 
L.  T.  577  ;  6  Asp.  M.  C.  138 ;  4  M.  B.  R.  146— 
Cave,  J. 

Goods  Shipped  to  Order  of  Vendee.] — The 

right  of  the  vendor  of  goods  to  stop  them  in 
transitu  is  not  lost  by  the  mere  fact  that  by  the 
bill  of  lading  under  which  they  are  shipped  they 
are  deliverable  to  the  vendee  or  his  assignees. 


i 


1687 


SALE — Sales  by  Auction. 


1688 


Brimdley  v.  Cilgwyn  Slate  Company,  65  L.  J., 
Q.  B.  67— D. 

The  plaintiffs  entered  into  a  contract  with  the 
defendants  to  purchase  seventy  tons  of  slates. 
At  the  request  of  the  plaintiffs  the  defendants 
chartered  a  ship  and  loaded  her  with  the  slates 
for  Southampton,  taking  hills  of  lading  by 
which  the  slates  were  deliverable  to  the  vendees 
or  their  assignees.  Before  the  arrival  of  the 
ship  at  Southampton  the  defendants  heard  of 
the  insolvency  of  the  plaintiffs,  and  gave  orders 
to  the  master  to  stop  the  slates  in  transitu.  In 
an  action  by  the  plaintiffs  for  non-delivery  of 
the  slates  : — Held,  that  the  transit  was  not  at  an 
end,  and  that  the  defendants  had  a  right  to  stop 
the  delivery  of  the  slates.  Ruck  v.  Hatfield  (5 
B.  &  Aid.  632)  ;  Roscvear  China  Clay  Company, 
Ex  parte  (11  Ch.  D.  560)  followed.     lb. 


Delivery  of  Bills  of  Lading— Telegram.]  — 
J.,  P.,  &  Co.,  merchants  at  Pernambuco,  having 
in  the  course  of  their  business  received  orders 
from  customers  to  purchase  goods  on  their 
account  in  New  York,  instructed  S.  J.  &  Co., 
their  agents  at  Liverpool,  to  purchase  the  goods 
and  have  them  shipped  to  J.,  P.,  &  Co.  S.  J.  & 
Co.  then  instructed  R.  B.  B.,  the  agent  at  New 
York  of  J.,  P.,  &  Co.  and  S.  J.  &  Co.,  to  purchase 
the  goods.  R.  B.  B.  purchased  the  goods  and 
shipped  them  to  J.,  P.,  &  Co.,  sending  with  them 
the  invoices  and  bills  of  lading.  To  provide 
himself  with  funds  to  purchase  the  goods, 
R.  B.  B.  drew  bills  of  exchange  on  8.  J.  &  Co.. 
in  which  were  the  words  "  and  charge  to  account 
as  advised."  Attached  to  each  bill  was  a 
counterfoil  headed  "  Advice  of  draft."  This  was 
addressed  to  S.  J.  &  Co.,  mentioned  the  number, 
date,  and  amount  of  the  bill,  and  concluded  with 
these  words  (mutatis  mutandis),  "  Against  ship- 
ments per  steamship  *  Glensannox,'  No.  6,  N.  Y. 
to  Brazil,  via  Baltimore.  Please  protect  the 
drafts  as  advised  above,  and  oblige  drawer. 
K  B.  B.,  New  York,  May  9, 1879."  These  bills 
were  sold  for  value  in  New  York,  and  R.  B.  B. 
advised  S.  J.  &  Co.  of  the  bills,  and  at  the  same 
time  forwarded  a  statement  of  account.    On 

Sresentation  of  the  bills  for  acceptance,  S.  J.  & 
o.  detached  the  counterfoils  and  kept  posses- 
sion of  them.  On  the  10th  June,  1879  (while 
the  plaintiffs,  P.,  S.,  &  Co.  were  the  holders  of 
these  bills,  drawn,  according  to  this  course  of 
business,  in  respect  of  a  shipment  to  J.,  P.,  &  Co., 
to  whom  the  bills  of  lading  were  at  the  same 
time  sent),  8.  J.  &  Co.  suspended  payment.  The 
same  day  the  failure  was  known  in  New  York, 
and  R.  B.  B.,  under  some  pressure  from  P.,  8.,  & 
Co.,  telegraphed  to  J..  P.,  &  Co., "  Having  pledged 
documents  and  shipments  *  Glensannox,'  hold 
proceeds  subject  order  P.,  S.,  &  Co."  The  ship 
"Glensannox"  arrived  at  Pernambuco  on  the 
11th  June,  and  the  goods  were  delivered  to  the 
customers  (of  J.,  P.,  &  Co.)  who  had  ordered 
them,  the  purchase  money  being  received  by 
J.,  P.,  &  Co.  The  court  found  that  the  bills  of 
lading  had  been  delivered  to  the  customers 
before  the  telegram  was  received.  The  bills  of 
exchange  were  dishonoured  by  S.  J.  &  Co.  when 
presented  for  acceptance.  J.,  P.,  &  Co.  claimed 
to  retain  the  purchase-moneys  against  moneys 
alleged  to  be  due  to  them  by  S.  J.  &  Co. — Held, 
that  even  if  the  telegram  had  reached  J.,  P.,  & 
Co.  before  the  transitus  was  at  an  end,  it  would 
not  operate  to  stop  them  in  transitu.    Phelps  v. 


Comber,  29  Ch.  D.  813  ;  54  L.  J.,  Ch.  1017 ;  52 
L.  T.  873 ;  33  W.  R.  829 ;  5  Asp.  M.  C.  428— 
C.A. 


II.    SALES  BY  AUCTION. 

Entry  in  Auctioneer's  Book— Bill  of  Bait— 
"Assurance  of  Personal  Chattels."]— Where  a 
contract  for  sale  of  goods  within  s.  17  of  the 
Statute  of  Frauds  is  valid  solely  by  virtue  of  a 
memorandum  in  writing,  such  memorandum  is 
an  assurance  of  personal  chattels  within  the 
Bills  of  Sale  Act,  1878.  Roberts,  In  re,  itosai 
v.  Robert*,  36  Ch.  D.  196  ;  56  L.  J.,  Ch.  952 ;  57 
L.  T.  79  ;  36  W.  B.  684  ;  51  J.   P.  757— Kay,  J. 

Commission,  when  earned— Introduction  of 
Purchaser.]— On  January  7th,  1887,  an  estate 
agent,  in  whose  hands  the  debtor  had  placed 
certain  property  for  sale,  introduced  to  such 
debtor  a  person  with  a  view  to  purchase,  but  no 
agreement  could  then  be  come  to  as  to  terns, 
and  the  debtor  a  few  days  afterwards  presented 
his  own  petition  in  bankruptcy.  On  January 
17th,  1887,  further  negotiations  took  place 
between  the  person  so  introduced  and  the  trustee 
in  the  bankruptcy  in  respect  of  the  property, 
and  on  January  24th,  1887,  the  purchase  was 
completed,  but  a  proof  subsequently  tendered 
by  the  estate  agent  for  his  commission  was  re- 
jected by  such  trustee  : — Held,  that  the  sale  was 
1  brought  about  in  consequence  of  the  introduc- 
tion, and  was  traceable  thereto,  and  that  the 
proof  for  commission  must  be  allowed.  Durrani, 
Ex  parte,  Beale,  In  re,  6  M.  B.  R.  37— See  also 
cases  ante,  col.  1521. 

Authority  of  Auctioneer  after  Amotion,]— At  a 
sale  by  auction  D.  became  the  purchaser  for 
6,0002.  of  certain  real  estate.  Before  the  sale 
took  place  the  auctioneer  had  received  a  letter 
from  S.,  stating  that  he  had  been  prevented 
from  attending  the  sale,  and  asking  if  any  of 
the  lots  remained  unsold.  After  the  sale  was 
concluded  the  auctioneer  informed  O.  that  a 
client  of  his  was  inquiring  about  the  property, 
and  D.  then  said  that  he  was  willing  to  resell 
the  same  for  6,600Z.,  of  which  1002.  should  be  paid 
to  the  auctioneer  as  commission,  provided  the 
offer  was  accepted  within  a  specified  time.  The 
offer  was  communicated  by  the  auctioneer  by 
letter  to  S.,  who  wrote  a  reply  to  the  auctioneer 
accepting  it.  S.  brought  an  action  against  IX 
for  the  specific  performance  of  the 


The  evidence  was  conflicting  as  to  the  time  with- 
in which  D.'s  offer  was  to  be  accepted,  and  his 
contention  was  that  it  was  not  accepted  in  time. 
He  also  contended  that  the  auctioneer's  authority 
did  not  extend  to  making  a  contract,  but  only 
to  bringing  the  parties  together: — Held,  that 
the  auctioneer  was  authorised  to  make  a  binding 
contract  for  a  sale  of  D.'s  interest  under  hie  con- 
tract ;  but  that  the  action  must  be  dismiasfrt  on 
the  ground  that  the  offer  had  not  been  accepted 
within  the  time  limited  by  D.  Samndert  v. 
Dence,  52  L.  T.  644— Field,  J. 


Trover— Conversion    Bale  "in  the  eoant  af 
hia   business  as  Auctioneer."]— An  auctioneer 

who,  in  the  ordinary  course  of  his  business,  sells 
by  public  auction  for  A.  goods  ostensibly 
belonging  to  A.,  but  really  belonging  to  Bn  and, 
without  notice,  pays  over  the  proceeds  of  sale  to 


1589 


SALE — Sales  by  Auction. 


1900 


A.,  is  not  guilty  of  a  conversion.    Turner  v. 
ffttfcy,  56  L.  J.,  Q.  B.  301— D. 

The  grantor  of  a  bill  of  sale,  which  included  a 
cow,  took  the  cow  to  a  public  market  kept  by 
the  corporation  of  N.,  and  placed  it  in  one  of  the 
pens  rented  by  the  defendant,  an  auctioneer, 
whom  he  instructed  to  sell  it.  The  defendant 
had  before  this  Bold  several  cows  in  the  same 
way  for  him.  The  defendant,  without  notice  or 
knowledge  of  the  bill  of  sale  in  question  or  that 
the  cow  was  not  the  property  of  the  person 
instructing  him,  sold  the  cow,  and  immediately 
after  be  received  the  money,  paid  it  over  to  the 
ostensible  seller,  he  having  previously  paid  the 
auctioneer  in  cash  the  amount  of  his  com- 
mission : — Held,  that  the  grantee  of  the  bill  of 
sale  could  not  afterwards  maintain  an  action 
against  the  auctioneer  for  the  value  of  the  cow. 

lien  on  Proceed! — Two  Funds,  one  subject  to 
lift*,  the  other  not— Marshalling.]  —  The 
defendants  were  auctioneers,  and  had  sold  for  a 
customer  a  brewery,  and  part  of  the  proceeds  of 
the  sale  was  in  their  hands  subject  to  their  claim 
for  charges  incurred  in  connexion  with  the  sale ; 
they  had  also  in  their  hands  the  balance  of  the 
price  of  some  furniture  sold  by  them  for  the 
same  customer.  The  plaintiff  was  a  creditor  of 
the  defendants'  customer,  and  be  by  letter 
charged  the  proceeds  of  the  sale  of  the  brewery 
in  favour  of  the  plaintiff.  The  defendants 
wrote  to  the  plaintiff  acknowledging  the  receipt 
of  the  letter  of  charge.  The  defendants  after- 
wards paid  their  customer  the  balance  of  the 
price  of  the  furniture,  and  appropriated  the 
part  of  the  proceeds  of  the  sale  of  the  brewery 
in  their  hands  to  the  payment  of  their  charges : — 
Held,  that  the  defendants,  as  auctioneers,  had  a 
lien  for  their  charges  upon  the  part  of  the  pro- 
ceeds of  the  sale  of  the  brewery  in  their  hands, 
and  that  they  were  at  liberty  to  appropriate  the 
part  of  the  proceeds  of  the  sale  of  the  brewery 
in  their  hands  to  the  payment  of  their  charges, 
and  were  not  bound  to  take  payment  of  their 
charges  out  of  the  price  of  the  furniture  in  order 
to  enable  the  plaintiff  to  obtain  payment  of  his 
charge,  and  that  the  doctrine  of  marshalling  did 
not  apply.  Webb  v.  Smith,  SO  Ch.  D.  192  ;  55 
L.  Jn  Ch.  343  ;  53  L.  T.  737— C.  A. 

Payment  by  Auctioneer  into  Bank— Fellow- 
iag  Tract  Honey.] — An  auctioneer  received 
moneys  from  a  sale  of  live  stock,  and  paid  them 
into  his  private  account  at  the  defendants'  bank. 
His  account  was  overdrawn  to  an  amount  not 
exceeding  2,5002. ;  but  under  an  arrangement 
which  was  then  subsisting,  he  was  permitted  to 
overdraw  up  to  2,5002.,  and  he  had  no  suspicion 
at  the  time  when  he  paid  in  such  moneys  of  any 
intention  on  the  part  of  the  bank  to  close  his 
account.  The  bank  shortly  afterwards  closed 
the  account,  and  applied  the  proceeds  of  the  sale 
in  redaction  of  the  overdraft.  The  bank  had 
notice  that  the  moneys  so  paid  in  were  substan- 
tially the  produce  of  the  sale  of  stock.  An 
action  waa  brought  by  the  plaintiff,  on  behalf  of 
all  the  rendors  at  the  sale,  against  the  bank,  to 
recover  their  respective  purchase-moneys,  less 
the  auctioneer's  commission : — Held,  that  the 
auctioneer  paid  the  proceeds  of  the  sale  to  his 
private  account  in  the  ordinary  course  of  busi- 
ness, and  was  not  guilty  of  a  breach  of  trust  in 
co  doing,  and  that  therefore  the  plaintiff  had  no 


remedy  against  the  bank.    Marten  v.  Roeke,  63 
L.  T.  946 ;  84  W.  R.  258— North,  J. 

Auctioneer's  Remuneration— Scale.]— A  testa- 
tor's real  estate  was  subject  to  a  mortgage  tor 
3,0002.  The  property  was  put  up  for  sale  by  an 
auctioneer  and  not  sold,  as  the  reserve  price 
(7,000Z.)  was  not  reached.  The  auctioneer  sub- 
sequently sold  the  property  by  private  contract 
at  the  reserve  price.  On  the  mortgagees  bring- 
ing their  accounts  of  the  sale  before  the  chief 
clerk,  he  allowed  the  auctioneer  only  the  charges 
usually  allowed  in  cases  of  sale  in  court,  and 
struck  off  621.  10*.  from  their  bill  for  commis- 
sion. An  action  for  the  administration  of  the 
testator's  estate  came  on  for  further  considera- 
tion, together  with  a  summons  by  the  mortga- 
gees to  vary  the  chief  clerk's  certificate  by 
allowing  the  62/.  10*. :— Held,  that  the  auctioneer 
was  only  entitled,  beyond  expenses  for  outgoings 
to  a  proper  remuneration  according  to  the  scale 
allowed  by  the  court  in  sales  of  property  under 
its  control,  and  that  auctioneers  had  no  right  to 
agree  among  themselves  to  fix  a  certain  scale 
of  remuneration  upon  which  to  charge  the  per- 
sons who  employed  them,  and  that  the  chief 
clerk  was  right  in  disallowing  the  621.  10*. 
Watford,  In  re,  Watford  v.  Watford,  59  L.  T. 
397— Kay,  J. 

Acceptance  of  Cheque  for  Deposit— Beaaonable- 

nesi.] — On  a  sale  by  auction  on  behalf  of  a 
mortgagee,  in  exercise  of  the  power  of  sale  con- 
tained in  his  mortgage  deed,  the  acceptance  by 
the  auctioneer,  on  behalf  of  the  vendor  and  with 
his  concurrence,  of  a  cheque  (which  was  dis- 
honoured on  presentation)  in  lieu  of  cash  for  the 
deposit  is  not,  having  regard  to  the  common 
practice  at  sales  by  auction,  unreasonable,  and 
is  not  such  an  act  of  negligence  on  the  part  of 
the  mortgagee  as  to  deprive  him  of  his  right  to 
the  costB  of  the  abortive  sale.  Farrer  v.  Lacy, 
31  Ch.  D.  42 ;  65  L.  J.,  Ch.  149  ;  58  L.  T.  615  ; 
34  W.  R.  22— C.  A. 


SALFORD    HUNDRED 
COURT. 

See  COURT. 


SALMON. 

8ee  FISH  AND  FISHERY. 


SALVAGE. 


See  SHIPPING. 


Am  applied  to  Insurance  Polieie*— Premiums.] 

IX8UBANOB,  I.  S. 


1591 


SCHOOL. 


1592 


SANITARY    LAW. 

See  HEALTH. 


SATISFACTION. 

By  way  of  Aooord.]— SeeAccoBD  akd  Satis- 
faction. 

Of  Legacies.]—  See  Will. 


SAVINGS    BANKS. 


See  BANKER. 


SCHOOL. 

School  Boards. 

a.  Election,  1591. 

b.  Contracts,  1592. 

e.  Attendance  of  Children — Fees,  1593. 
d.  Rating— See  Poor  Law. 

2.  Industrial  Schools,  1594. 

3.  Reformatory  Schools,  1595. 

4.  Endowed  Schools — See  Chabity,  IV. 

5.  Contracts  as  to  Schooling,  1595. 


1.  School  Boards. 

a.  Election. 

Vote— Ballot-papers,  Validity  of.  ]— The  Ballot 
Act,  1872,  Sched.  II.,  which  applies  to  municipal 
elections,  directs  that  a  voter  shall  vote  by  placing 
a  cross  on  the  right-hand  side  of  the  ballot-paper 
opposite  the  name  of  each  candidate  for  whom 
he  votes.  A  general  order  of  the  Education 
Department,  made  under  the  Elementary 
Education  Acts,  provides  that  the  poll  at  elec- 
tions of  school  boards  in  boroughs  shall  be 
conducted  in  like  manner  as  the  poll  at  a  con- 
tested municipal  election  as  directed  by  the 
Ballot  Act,  1872,  is  to  be  conducted,  and  the  pro- 
visions of  that  Act  shall,  subject  to  the  provisions 
of  the  order,  apply  to  elections  of  school  boards, 
provided  that — "  Every  voter  shall  be  entitled  to 
a  number  of  votes  equal  to  the  number  of  the 
members  of  the  school  board  to  be  elected,  and 
may  give  all  such  votes  to  one  candidate,  or  may 
distribute  them  among  the  candidates  as  he 
thinks  fit.  The  voter  may  place  against  the 
name  of  any  candidate  for  whom  he  votes  the 
number  of  votes  he  gives  to  such  candidate  in 
lieu  of  a  cross,  and  the  form  of  directions  for  the 
guidance  of  the  voter  in  voting  contained  in  the 
Ballot  Act,  1872,  shall  be  altered  accordingly  " : 
— Held,  applying  the  principle  of  Woodward  v. 
Sarsons  (10  L.  R.,  C.  P.  733),  that  the  provisions 
of  the  general  order  and  of  the  Ballot  Act,  1872, 


were  sufficiently  complied  with  where  ballot- 
papers  at  the  election  of  a  school  board  in  a 
borough  were  marked  otherwise  than  in  the 
mode  prescribed  by  the  order,  if  it  could  be 
ascertained  with  reasonable  certainty  for  whom 
the  voter  in  each  case  intended  to  vote,  and  how 
many  votes  he  intended  to  give,  and  if  it  appeared 
that  he  had  not  intended  to  give  a  greater 
number  of  votes  than  there  were  members  of 
the  school  board  to  be  elected  : — Applying  the 
above  principles,  the  court  held  that  ballot- 
papers  marked  by  placing  crosses  instead  of 
figures,  or  crossos  and  figures,  or  single  strokes, 
opposite  the  names  of  candidates,  were  valid. 
Phillips  v.  Goff,  17  Q.  B.  D.  805  ;  55  L.  J.,  a  B. 
512  ;  35  W.  R.  197  ;  50  J.  P.  614— D. 

Petition  —  Appeal  from  Commissioner's  De» 
oision.] — The  High  Court  has  no  jurisdiction  to 
entertain  an  appeal  against  the  decision  of  a 
commissioner  appointed  to  inquire  into  alleged 
corrupt  or  illegal  practices  at  a  school  boaid 
election,  except  on  points  of  law  reserved  for  its 
decision  by  way  of  a  case  stated  by  the  com- 
missioner. Sclwol  Board  Election,  In  re,  Apt*, 
Ex  parte,  54  L.  T.  296— D. 


b.  Contracts. 

Compulsory  Purchase  of  Lands—Agreement  fe 
Exchange  with  Third  Party  prior  to  Votise  t» 
Treat] — A  school  board  served  on  R.  the  cus- 
tomary notice  to  treat  for  land  belonging  to  him, 
all  the  requisite  preliminaries  required  by  the 
Elementary  Education  Act,  1870,  having  pre- 
viously been  complied  with.  Prior,  however,  to 
the  service  of  such  notice  to  treat  and  to  the 
passing  of  the  Confirmation  Act  as  required  by 
the  above  act,  the  board  had  entertained  and 
adopted,  subject  to  the  sanction  of  the  Education 
Department,  a  proposal  from  one  B.,  a  neigh* 
bouring  landowner,  for  exchanging  a  portion  of 
the  land  to  be  acquired  by  the  board  from  R.  for 
a  piece  of  B.'s  land,  he  undertaking  to  form  the 
land  so  to  be  conveyed  to  him  by  the  board  into 
a  public  road.  There  was  evidence  to  show  that 
such  road,  when  made,  would  be  advantageous  to 
the  school  intended  to  be  erected :— Held,  on 
motion  by  R.  for  an  injunction  to  restrain  the 
board  from  putting  in  force  their  statutory 
powers  with  respect  to  so  much  of  the  land 
comprised  in  the  notice  to  treat  as  they  pro- 
posed to  convey  to  B.,  that  the  board  weie 
justified  in  the  course  they  had  taken,  and 
could,  if  they  obtained  the  sanction  of  the 
Education  Department,  carry  out  the  proposal. 
Rolls  v.  London  School  Board,  27  Ch.  D.  689 ; 
51  L.  T.  567  ;  33  W.  R.  129— Chitty,  J. 

Officer— Architect — Contract  not  under  Sssl 
— Liability  of  Board.]— By  33  &  34  Vict  c  ft 
(the  Elementary  Education  Act,  1870),  s.  30, 
sub.-s.  (1),  a  school  board  shall  be  a  body  cor- 
porate .  .  .  having  a  perpetual  succession  and  a 
common  seal  .  .  .  sub.-s,  (4),  any  minute  made 
of  proceedings  at  meetings  of  the  school  board, 
if  signed  by  .  .  .  the  chairman  .  .  .  shall  be 
receivable  in  evidence  in  all  legal  proceedings 
without  further  proof  .  .  .  sub.-s.  (6),  the  role* 
contained  in  the  third  schedule  shall  be  observed. 
By  8.  35  a  school  board  may  appoint  a  clerk  sud 
a  treasurer  and  other  necessary  officers  .  .  •  Br 
the  Third  Schedule,  7,  the  appointment  of  any 


1598 


SCHOOL. 


1594 


officer  of  the  board  may  be  made  by  a  minute 
of  the  board,  signed  by  the  chairman  of  the 
board,  and  countersigned  by  the  clerk  (if  any) 
of  the  board,  and  any  appointment  so  made 
shall  be  as  valid  as  if  it  were  made  under  the 
seal  of  the  board.  By  a  minute  signed  by  the 
chairman  of  a  school  board  and  countersigned 
by  the  clerk,  the  plaintiff  was  appointed  archi- 
tect of  the  board,  and  under  orders  given  by 
subsequent  minutes  so  signed  and  countersigned 
and  communicated  to  him,  he  prepared  plans 
for  the  board  : — Held,  that  by  virtue  of  the 
provisions  of  the  act  he  was  entitled  to  recover 
payment  for  his  services  although  the  appoint- 
ment  and  orders  were  not  under  seal.  Scott  v. 
Great  Clifton  School  Board,  14  Q.  B.  D.  500  ; 
52  L.  T.  105 ;  33  W.  R.  368 ;  1  C.  &  B.  435— 
Mathew,  J.    Affirmed  in  C.  A. 


c.  Attandanoe  of  Children— Fees. 

Bye-laws— Hon-Attendance  at  School— Sea- 
sonable Excuse.  1 — A  school  board  made  a  bye- 
law  under  s.  74  of  the  Elementary  Education 
Act,  1870,  providing  that  "  the  parent  of  every 
child  of  not  less  than  five  nor  more  than 
thirteen  years  of  age,  shall  cause  such  child  to 
attend  school,  unless  there  be  a  reasonable  ex- 
cuse for  non-attendance/'  and  that  "  any  of  the 
following  reasons  shall  be  a  reasonable  excuse, 
namely,  that  the  child  is  under  efficient  instruc- 
tion in  some  other  manner  ;  that  the  child  has 
been  prevented  from  attending  school  by  sick- 
ness or  any  unavoidable  cause  ;  that  there  is  no 
public  elementary  school  open  which  the  child 
could  attend,  within  two  miles  from  the  resi- 
dence of  such  child."  Where  it  was  shown  that 
the  non-attendance  was  caused  by  the  child,  a 
girl  aged  twelve,  with  fair  elementary  instruc- 
tion, having  been  in  respectable  employment, 
e«ming  wages,  which  she  gave  to  her  parents, 
who  were  poor,  industrious  and  respectable 
people,  and  applied  them  to  the  support  of  their 
other  children,  whom  otherwise,  from  no  fault 
of  the  parents,  they  would  have  been  unable 
sufficiently  to  support : — Held,  that  these  facts 
constituted  a  " reasonable  excuse"  for  non- 
attendance.  London  School  Board  v.  Dug  a  an, 
13  Q.  B.  D.  176  ;  53  L.  J.,  M.  C.  104  ;  32  W.  R. 
768  ;  48  J.  P.  742— D. 

Yon-payment    of    Fees    for    Tuition — 

Causing  Child  to  Attend.]— The  London  School 
Board  made  bye-laws  under  s.  74  of  the  Elemen- 
tary Education  Act,  1870,  providing  that  the 
parent  of  every  child,  if  not  less  than  five  nor 
more  than  thirteen  years  of  age,  should  cause 
such  child  to  attend  school  unless  there  was  a 
reasonable  cause  for  non-attendance,  and  that 
every  parent  who  should  not  observe  or  should 
neglect  any  bye-law  should  be  liable,  upon  con- 
viction, to  a  penalty.  The  respondent  sent  his 
child,  aged  ten,  to  one  of  the  Board's  schools,  but 
did  not  pay,  though  he  was  able  to  pay,  the 
weekly  fees  for  tuition  prescribed  by  the  School 
Board  with  the  consent  of  the  Education  De- 
partment. The  child  was  admitted  to  the  school, 
jmri  received  instruction  therein  : — Held,  that 
the  respondent  had  not  caused  his  child  to 
attend  school  within  the  meaning  of  the  bye- 
laws,  and  therefore  was  liable  to  the  penalty. 
JLen&on  School  Board  v.  Wood,  15  Q.  B.  D.  415  ; 


54  L.  J.,  M.  0.  145  ;  54  L.  T.  88  ;   50  J.  P.  54 
— D. 

Action  to  recover  Fees  for  Tuition— Implied 
Promise  to  pay— Bye-laws.] — No  action  to  re- 
cover arrears  of  fees  for  tuition  can  be  main- 
tained by  a  school  board  against  the  parent  of  a 
child  attending  a  public  elementary  school ;  for 
it  being  compulsory  upon  the  parent  to  cause 
his  child  to  attend  a  school,  his  act  in  sending 
the  child  to  school  is  not  voluntary,  and  no  pro- 
mise to  pay  the  fees  can  be  implied ;  and  the 
Elementary  Education  Acts,  1870  to  1880,  con- 
template that  the  remedy  to  enforce  payment  of 
fees  shall  be  by  an  attendance  order  and  by 
summary  proceedings  before  justices  and  not  by 
action.  Saunders  v.  Richardson  (7  Q.  B.  D.  388) 
approved.  London  School  Board  v.  Wright,  12 
Q.  B.  D.  578  ;  63  L.  J.,  Q.  B.  266  ;  50  L.  T.  606 ; 
32  W.  R.  577  ;  48  J.  P.  484— C.  A. 

School  Hours — Home  Lessons— Unlawful  De- 
tention of  Scholar.] — The  Elementary  Education 
Acts  1870  and  1876,  do  not  authorise  the  setting 
of  lessons  to  be  prepared  at  home  by  children 
attending  a  board  school.  The  detention  at 
school  after  school  hours  of  a  child  for  not  doing 
home  lessons  is  therefore  unlawful,  and  renders 
the  master  who  detains  the  child  liable  to  be 
convicted  for  an  assault  Hunter  v.  Johnson, 
13  Q.  B.  D.  225  ;  53  L.  J.,  M.  C.  182  ;  51  L.  T. 
791 ;  32  W.  R.  857  ;  48  J.  P.  663  ;  15  Cox,  C.  C. 
600— -D. 

Closing  School  through  Disease— Bight  to 
Compensation  for  Master's  Fees.] — The  urban 
sanitary  authority,  owing  to  an  attack  of 
measles,  ordered  the  board  school  to  be  closed 
for  a  fortnight,  whereby  the  master  lost  his  fees, 
amounting  to  30*.  per  week.  He  claimed  com- 
pensation under  the  Public  Health  Act,  1875, 
s.  308 :— Held,  that  his  claim  could  not  be 
allowed,  the  power  to  close  being  given  by  the 
Education  Code,  1866,  8.  98,  and  not  by  the 
Public  Health  Act.  Roberts  v.  Falmouth  Sani- 
tary Authority,  62  J.  P.  741— D. 


2.  Industrial   Schools. 

Person  under  fourteen  years  of  age  living 
with  ProBtitu teg— Jurisdiction  of  Justices.] — 
The  Industrial  Schools  Act,  1886,  s.  14,  provides 
that  there  shall  be  a  power  to  any  person  to  bring 
before  two  justices  or  a  magistrate,  any  child, 
apparently  under  the  age  of  fourteen  years,  that 
comes  within  certain  descriptions  therein  set 
out,  to  which  the  Industrial  Schools  Act  Amend- 
ment Act,  1880,  s.  1,  adds  the  following  descrip- 
tions, namely,  "  that  is  lodging,  living  or  residing 
with  common  or  reputed  prostitutes,  or  in  a 
house  resided  in  or  frequented  for  the  purpose 
of  prostitution  ;  that  frequents  the  company  of 
prostitutes."  The  court  is  always  desirous  of 
doing  all  that  can  be  done  to  carry  out  the  bene- 
ficent object  of  these  acts,  and  will  require 
justices  to  whom  complaint  has  been  made  to 
issue  a  summons  against  the  child.  If  the  child 
does  not  appear,  then  a  warrant  may  be  issued 
to  bring  her  before  the  justices.  Hampshire 
JJ.%  In  re,  52  J.  P.  311— D. 

Child  living  with  Prostitutes  —  Summons 
against  Child.]— The  power  given  under  29  &  30 


1595 


SCOTLAND. 


1596 


Vict.  c.  118,  s*  14,  and  43  &  44  Vict.  c.  IB,  s.  1, 
to  any  person  to  bring  before  justices  a  child 
residing  with  prostitutes  includes  the  bringing 
of  the  child  by  way  of  legal  process  ;  hence  a 
summons  may  be  served  on  the  child,  and  pro- 
cess to  arrest  in  the  usual  way  may  follow  as 
provided  by  the  Summary  Jurisdiction  Acts. 
Beg.  v.  Moore,  62  J.  P.  37B— D. 


3.  Refoematoky  Schools. 
Bating.]—^  Poob  Law. 

4.  Endowed  Schools— See  Chabity,  IV. 


5.  CONTRACTS  AS  TO  SCHOOLING. 

Breach  of  School  Exiles  by  Parent— Bight  of 
Seaoelmaster  to  refuse  to  tomplete  his  Con- 
tract.]— The  defendant's  son  was  a  pupil  at  the 
plaintiff's  school,  one  of  the  rules  of  which — 
the  defendant  having  notice  of  it — was  that  no 
"  exeat,"  or  permission  to  leave  the  school  and 
remain  away  for  one  night,  was  allowed  during 
Easter  Term.  During  Easter  Term  the  defendant 
requested  that  his  son  might  be  allowed  to  come 
home  and  remain  for  the  night,  which  the  plain- 
tiff refused  to  allow  ;  but  subsequently,  on  the 
defendant  repeating  the  request  and  sending  a 
servant  for  the  boy,  the  plaintiff  allowed  him  to 
go  home,  writing  to  the  defendant  at  the  same 
time  that  he  did  so  on  the  understanding  that 
the  boy  returned  the  same  night.  On  the  boy 
reaching  home,  the  defendant  telegraphed  to  the 
plaintiff  that  it  was  not  convenient  to  send  the 
boy  that  day,  but  he  could  return  the  next 
morning,  to  which  the  plaintiff  telegraphed  in 
reply  that  unless  the  defendant's  son  returned 
that  night  he  should  not  receive  him  back.  In 
consequence  of  the  last  telegram  the  defendant 
did  not  send  the  boy  back,  and  the  present 
action  was  brought  to  recover  the  school  fees 
due  on  the  first  day  of  Easter  Term,  of  which 
term  less  than  three  weeks  had  expired  when 
the  boy  left.  The  defendant  paid  13/.  into 
court  with  a  denial  of  liability,  and  counter- 
claimed  damages  for  breach  of  contract  by  the 
plaintiff : — Held,  that  the  plaintiff's  contract 
was  to  board,  lodge,  and  educate  the  defendant's 
son  for  the  term  on  the  condition  that  he  should 
be  at  liberty  to  enforce,  with  regard  to  the  boy, 
the  rules  of  the  school,  or  such  of  them  as  were 
known  to  the  defendant;  that  this  condition 
having  been  broken  by  the  defendant,  the  plain- 
tiff had  the  right  to  refuse  to  complete  his  con- 
tract, and  was  consequently  entitled  to  succeed 
in  this  action  both  on  claim  and  counter-claim. 
Price  v.  Wilkins,  58  L.  T.  680— Wills,  J. 


SCOTCH   LAW. 


See    NEXT    TITLE 


SCOTLAND. 

Administration — Jurisdiction— Estate  of  deni- 
eilod  Scotch  Testator— Trust  Fundi  partly  ia 
Scotland,  partly  in  England.]— A  resident  and 
domiciled  Scotchman  died  leaving  a  trust  dis- 
position and  settlement  appointing  six  trustees : 
three  were  resident  in  Scotland,  one,  being  a 
Scotch  member  of  parliament,  resided  in  Scot- 
land when  parliament  was  not  sitting,  and  the 
other  two  were  resident  in  England.  The  truster 
had  a  very  large  amount  of  personalty  in  Scot- 
land as  well  as  heritable  estate ;  and  a  trifling 
amount  of  personal  estate  only  in  England. 
The  trustees  proved  the  trust  deed  in  Scotland, 
and  were  confirmed  as  executors.    They  then 
had  the  Scotch  probate  sealed  in  accordance 
with  21  &  22  Vict  c.  56,  s.  12,  and  thus  became 
the  personal  representatives  in  England.   They 
removed  all  but  a  small  portion  of  the  person- 
alty in  England  into  Scotland.    A  person  resi- 
dent in  England,  who  was  entitled  to  a  share  of 
a  large  legacy,  and  also  to  a  share  of  the  readoe, 
brought  an  action  in  England  to  administer  the 
estate.    The  trustees  were  served  and  entered  an 
appearance.     The  plaintiff,  an  infant,  in  the 
English  action  moved  for  judgment  for  adminis- 
tration of  the  whole  estate,  and  on  the  29th 
November,  1882,  the  Court  of  Appeal  granted 
the  order.     The  trustees  lodged  an  appeal  to 
this  House.    In  June,  1883,  the  trustees  carried 
certain  accounts  into  chambers  in  the  English 
action.    On  the  5th  July,  1883,  four  of  the  re- 
siduary legatees  commenced  this  action  in  Soot- 
land  against  the  trustees  for,  inter  alia,declaratar 
that  the  trustees  were  bound  to  administer  the 
estate  in  Scotland,  subject  to  the  Scotch  lav, 
and  under  the  authority  and  jurisdiction  of  the 
Scottish  courts  alone ;  and  that  they  were  not 
entitled  to  place  the  estate  under  the  control  of 
the  English  court  or  any  other  foreign  tribunal 
f urth  of  Scotland,  and  for  interdict ;  or,  alter- 
natively, to  the  conclusion  for  interdict  for  the 
removal  of  the  trnstees,  for  sequestration  of  the 
estate,  the  appointment  of  a  judicial  factor  and 
for  interdict  until  the  estate  should  be  vested  is 
the  judicial  factor.     On  the  30th  November, 
1883,  this  House  affirmed  the  order  of  the  Court 
of  Appeal.      On  the  29th  February,  1884,  the 
Court  of  Session  granted  an  interlocutor  finding 
in  terms  of  the  declaratory  conclusions  of  the 
summons:  sequestrating  the  estate,  appointing 
a  judicial  factor  and  interdicting  the  trustees 
from  removing  any  title-deeds,  &c,  from  Scot- 
land, or  accounting  to  anyone  otherwise  than 
the  judicial  factor.    On  appeal  taken  by  order 
of  the  Court  of  Chancery  in  England :— Held, 
that  the  decerniture  in  terms  of  the  declarator/ 
conclusions  of  the  summons,  which  in  effect 
affirms  the  exclusive  competency  of  the  Scottish 
jurisdiction,  was  not  supported  by  statute  or 
authority  ;  and,  therefore,  that  part  of  the  prin- 
cipal interlocutor  and  that  part  of  the  interdict 
relating  to  accounting  must  be  reversed;  bnt 
the  remaining  portion  of  the  principal  inter* 
locutor  and  the  others  appealed  from  must  be 
affirmed,  because  the  Scotch  courts  had  (I)  fall 
jurisdiction  to  sequestrate  the  estate  in  Scot- 
land— the  persons  of  the  trustees  and  the  trust 
property  being  there — and  to  appoint  a  judicial 
factor ;  and  (2)  because  in  the  circumstances 
and  on  the  undertaking  given  as  to  the  infant 


1597 


SCOTLAND. 


1598 


plaintiff  becoming  a  party  to  the  Scotch  ad- 
ministration, a  prim&  facie  case  of  convenience 
in  favour  of  a  judicial  administration  in  Scot- 
land had  been  made  out.  Dicta  of  Lord  Cotten- 
ham,  in  Preston  v.  Melville  (2  Bob.  App.  107), 
explained,  and  of  Lord  Westbury,  in  Mwhin  v. 
Wflie  (10  H.  L.  C.  13),  dissented  from.  Buying 
y.  Orr-Ewing,  10  App.  Cas.  453 ;  53  L.  T.  826 
— H.  L.  (8c.). 

Bankruptcy — Hotour  Bankruptcy — Sequestra- 
tion— Contingent  Debt.]— The  Debtors  (Scotland) 
Act,  1830  (43  &  44  Vict.  c.  34),  s.  6,  enacts  that 
in  any  case  in  which,  under  the  provisions  of 
this  act,  imprisonment  is  rendered  incompetent, 
notour  bankruptcy  shall  be  constituted  by  in- 
solvency, concurring  with  a  duly-executed  charge 
for  payment  followed  by  the  expiry  of  the  days 
of  cnarge  without  payment,  or  where  a  charge  is 
not  necessary  or  not  competent,  by  insolvency 
concurring  with  an  extracted  decree  for  pay- 
ment, followed  by  the  lapse  of  the  days  inter- 
vening prior  to  execution  without  payment 
having  been  made.  The  Court  of  Session  de- 
cerned A,  to  pay  B.,with  an  execution  of  charge 
thereon  indorsed,  dated  the  8th  of  June,  1883. 
The  days  of  charge  on  the  said  decree  expired  on 
the  14th  of  June,  1883,  and  payment  had  not 
been  then  made ;  but  on  the  13th  of  June  A.  in- 
♦if^fcttri  to  B*  that  he  had  appealed  to  this  House 
against  the  decree,  and  on  the  20th  of  June  the 
usual  order  of  service  in  the  said  appeal  granted 
on  the  18th  of  June  was  duly  served  on  B. : — 
Held,  that  there  was  notour  bankruptcy  under 
the  statute,  which  could  not  be  affected  by  the 
appeal.  Fleming  v.  Teamen,  9  App.  Cas.  967 — 
4  L.  (8c.). 

By  letters,  C.  agreed  that  any  advances  he 
made  to  A.  on  10  U's  should  not  be  an  obliga- 
tion against  A.  upon  which  he  could  sue  A.,  or 
nee  diligence  against  him,  but  that  they  should, 
until  final  adjustment  of  a  joint  adventure,  be  re- 
tained as  vouchers  of  the  current  account,  "  upon 
which  I  cannot  sue  you  or  use  diligence  for  them 
against  you.'*  A.  became  notour  bankrupt,  and 
C  the  petitioning  creditor,  in  a  petition  for  se- 
questration founded  on  the  debt  forming  the 
beJanceof  the  accounts  current,  which  he  vouched 
by  the  I  0  U's  :— Held,  that  the  debtor  having 
become  notour  bankrupt,  C.  was  not  barred  by 
the  agreement  from  applying  for  sequestration. 
lb. 

Per  Lord  Watson :  A  contingent  debt  within 
the  meaning  of  s.  14  of  the  Statute  of  1856  is  a 
debt  which  has  no  existence  now,  but  will  only 
emerge  and  become  due  upon  the  occurrence  of 
future  event.    lb. 


Bridge— Liability  for  Maintenance— Bridge 
partly  in  one  County  and.  partly  in  another.]— 
By  the  Roads  and  Bridges  (Scotland)  Act,  1878, 
a.  88,  after  reciting  that  "  there  are  or  may  be 
bridges  in  Scotland  which  accommodate,  or  may 
accommodate,  the  traffic,  not  only  of  the  county 
or  counties,  or  burgh  or  burghs,  as  the  case  may 
be,  within  which  they  are  locally  situated,  bat 
also  of  the  adjoining  county,  or  of  other  counties, 
and  burgh  or  burghs,  or  one  or  more  of  them, 
and  it  is  not  reasonable  that  the  whole  burden 
of  managing,  maintaining,  repairing,  and  if  need 
be,  rebuilding  such  bridges,  and  of  paying  the 
debt  affecting,  or  which  may  affect  the  same, 
enoolri  be  imposed  upon  the  county  or  burgh 
within  which  they  are  so  situated,"  provision  is 


made  for  proceedings  whereby  the  localities  in 
which  bridges  are  situate  may  be  relieved  of 
part  of  the  expense  of  maintaining  them  where 
they  accommodate  the  traffic  of  other  localities : 
— Held,  that  the  provisions  of  the  section  are 
applicable  to  bridges  locally  situate  in  more  than 
one  county  or  burgh.  Glasgow  Provost  v.  HUU 
head  Police  Commissioners,  11  App.  Cas.  699 
— H.  L.  (Sc). 

Charitable  Trust— Commingling  of  Different 
Funds — Exeess  of  Expenditure  over  Income — 
Personal  Liability  of  Trustees — Discretion  of 
the  Court.] — If  trustees  of  a  public  charitable 
trust  cannot  carry  out  the  main  purpose  of  the 
trust  in  the  mode  the  truster  has  expressed,  it 
is  their  duty  to  apply  to  the  court  for  direc- 
tions. When  capital  of  one  trust  fund  is  bona  fide 
intermixed  by  the  same  trustees  with  capital  of 
another  trust  fund,  both  funds  being  bequeathed 
for  the  same  public  charity,  and  an  actio  popu- 
laris  is  brought,  the  duty  of  the  court  is  to  con- 
sider what  course  is  best — looking  at  the  whole 
circumstances — for  the  interest  of  the  charity ; 
and  the  court  ought  to  refuse  to  give  any  decision 
until  the  whole  circumstances  to  form  such  final 
decision  is  before  them,  it  being  within  the  power 
of  the  court  to  order  either  an  independent 
inquiry  or  the  production  of  further  evidence  by 
the  parties.  Andrews  v.  M'Guffog,  11  App.  Cas. 
313— H.  L.  (Sc.). 

In  1869  James  E.  left  certain  sums  to  A.  and 

B.  to  found  a  ragged  school  in  N.  S.  A.  and  B. 
built  the  school.  In  1863  John  E.,  a  brother  of 
James  E.,  died,  having  directed  his  trustees  to 
hand  over  to  A.  and  B.,  as  James  E.'s  trustees, 
the  sum  of  7,0002.,  and  directed  that  if  A.  and  B. 
were  satisfied  the  ragged  school  was  sufficiently 
provided  for,  they  should  build  and  fit  up- 
specifying  5002.  as  the  cost— another  school  ad- 
joining the  ragged  school,  "  in  the  same  style  of 
architecture,"  and  apply  the  surplus  in  main- 
taining the  school  as  one  for  middle-class  educa- 
tion, the  two  schools  to  be  called  the  "  E. 
Institute."  In  1866  A.  E.,  sister  of  the  above, 
died,  and  by  her  will  left  the  residue  of  her 
estate,  about  3,0002.,  to  A.  and  B.,  as  James  E.'s 
trustees,  to  be  invested,  the  interest  to  be  applied 
annually  by  A.  and  B.  towards  the  support  and 
maintenance  of  the  ragged  school ;  and  should 
they  consider  that  the  funds  left  by  James  E.  are 
sufficient  for  that  purpose,  to  apply  the  whole  or 
any  part  of  the  annual  interest  in  support  of  the 
contemplated  school  for  affording  superior  edu- 
cation. At  the  time  of  this  last  legacy  A.  and  B. 
had  erected  and  nearly  completed  the  school  for 
superior  education,  but  the  accounts  had  not 
been  all  paid,  the  cost  much  exceeding  5002. 
The  bulk  of  John  E.'s  legacy,  namely  5,5002., 
had  been  invested  on  deposit  note  at  4J  per 
cent.,  and  payment  on  account  of  the  new 
building  had  been  met  by  overdrafts  on  the 
bank.  On  receipt  of  A.  E.'s  legacy  A.  and  B. 
paid  these  overdrafts  by  that  legacy.    D.  and 

C.  raised  this  action  on  the  part  of  the  public  to 
have  A.  and  B.  declared  personally  liable  to 
replace  on  investment  A.  E.'s  3,0002.    A.  and  B. 

J  deeded  that  they  had  considered  all  these 
egacies  as  forming  one  endowment  for  the  "  E. 
Institute,"  and  no  separation  was  made  in  the 
accounts  ;  and  that  the  3,0002.  was  represented 
by  an  aliquot  part  of  the  5,5002.  on  deposit.  It 
was  proved  that  A.  and  B.  had  acted  bona  fide, 
bad  not  spent  more  than  was  necessary  on  the 


1599 


SCOTLAND. 


1600 


new  building,  and  that  they  had  handed  over  the 
5,5002.  to  the  new  managers  of  the  school.  The 
Lord  Ordinary  held  A.  and  B.  bound  to  invest 
the  money.  The  Second  Division  recalled  that 
judgment,  and  dismissed  the  action  simpliciter : — 
Held,  except  as  to  the  recall  of  the  Lord  Ordi- 
nary's judgment,  that  A.  and  B.  were  entitled  to 
absolvitor  as  far  as  the  action  was  directed 
against  them  individually ;  but,  secondly,  that 
there  not  being  sufficient  evidence  before  the 
House,  the  case  must  go  back  to  the  court  below 
to  determine  whether  the  encroachments  which 
have  been  made  on  the  capital  either  of  John 
E.'s  or  A.  E.'8  bequest  ought  to  be  repaid,  or  any, 
and  if  so  to  what  extent,  by  accumulation  of 
future  income: — Held,  also,  that  the  fact  that 
John  E.'s  funds  were  in  other  hands  ought  not 
to  form  any  impediment  to  these  matters  being 
inquired  into.     lb. 

Praetioe — Partial  Decree.  ] — Pursuers  in 

an  actio  popularis  in  a  public  trust  have  no 
right  to  demand  a  partial  decree,  which  will 
leave  unsettled  matters  seriously  affecting  the 
future  administration  of  the  charity.  Andrew* 
v.  McOuffog,ll  App.  Cas.  313— H.  L.  (»Sc). 

Evidence — Statements  of  Deceased  Persons.] — 
By  the  law  of  Scotland  statements  of  a  deceased 
person  in  relation  to  facts,  which  must  pre- 
sumably have  been  within  his  personal  know- 
ledge, and  as  to  which,  if  alive,  he  could  have 
been  examined  as  a  witness,  may  after  his  death 
be  received  as  secondary  evidence  through  the 
medium  of  writing,  or  through  the  medium  of 
a  living  person  who  heard  the  statement. 
Where,  therefore,  a  member  of  the  family  writes 
a  note  in  a  manuscript  book  to  the  effect  that  he 
has  sent  original  letters  to  a  certain  person,  and 
they  cannot  be  found,  the  copies  of  such  letters, 
the  handwriting,  and  that  the  copies  were  from 
original  letters  being  proved,  the  note  and  the 
copies  of  the  letters  are  evidence  of  the  truth  of 
the  statements  within  the  writer's  personal 
knowledge,  and  appearing  to  be  so  by  the  letters 
themselves.  Lauderdale  Peerage,  The,  10  App. 
Cas.  692— H.  L.  (6c). 

So  also  a  statement,  whether  oral  or  written, 
is  not  vitiated  if  made  with  a  purpose,  where 
the  object  was  an  obvious  and  legitimate  one, 
and  one  supporting  and  not  discrediting  the 
presumption  of  truth.  But  the  statement  of  a 
deceased  person  is  not  admissible  as  evidence 
when  its  terms,  or  the  circumstances  in  which 
it  was  made,  are  such  as  to  beget  a  reasonable 
suspicion  either  that  the  statement  was  not  in 
accordance  with  the  truth,  or  that  it  was  a 
coloured  or  one-sided  version  of  the  truth  ;  and 
this  rule  should  be  applied  with  greater  strict- 
ness in  criminal  cases.    lb. 

The  general  rule  of  the  law  of  Scotland  is  that 
hearsay  of  a  deceased  person,  who  if  alive  would 
have  been  a  competent  witness,  is  admissible 
evidence  ;  but  if  the  fact  to  which  the  deceased 
testified  was  such  as  he  could  not  have  had  any 
special  knowledge  of  it, it  is  not  receivable;  and 
this  applies  to  written  as  well  as  oral  state- 
ments. Zovat  Peerage,  The,  10  App.  Cas.  763— 
H.  L.  (Sc.). 

Inferior  Court — Appeal — Question  of  Pact  or 
Law.]— S.  40  of  the  6  Geo.  4,  c.  120,  provides 
that  where  a  cause  is  commenced  in  the  Sheriff 
Court  or  other  Inferior  Court,  and  a  proof  is 


allowed,  the  judgment  shall  be  subject  to  appeal 
to  the  House  of  Lords  in  so  far  only  as  the  same 
depends  on  or  is  affected  by  matter  of  law.  An 
action  was  raised  in  the  Sheriff  Conrt  for 
declarator  that  the  burning  of  certain  heaps  of 
mineral  refuse  would  cause  serious  nuisance  and 
annoyance  to  the  proprietors  of  adjacent  residen- 
tial houses.  On  appeal  to  the  Court  of  Session, 
that  cjurt  found  that  the  ignition  of  the  heaps 
"  would  cause  material  discomfort  and  annoy- 
ance "  : — Held,  that  this  finding  was  not  upon  a 
question  of  law,  and  therefore  not  the  subject  of 
appeal.  Fleming  v.  Hislop,  11  App.  Cas.  6W- 
H.  L.  (Sc). 

Interdict — Huisance.] — The  words  of  an  in- 
terdict or  injunction  against  causing  a  nuisance 
ought  not  to  be  so  drawn  as  to  shut  out  all 
scientific  attempts  to  attain  the  desired  end 
without  causing  a  nuisance.    lb. 

Husband  and  Wife— Marriage— Legitima- 
tion.]—  By  Scotch  law  marriage  of  a  domi- 
ciled Scotchman  legitimates  his  children  bora 
previous  to  the  marriage,  and  the  same  effect 
is  produced  even  if  the  marriage  takes  place  on 
death  bed.  Lauderdale  Peerage,  The,  10  App. 
Cas.  692— H.  L.  (Sc.). 

Hullity— Impotenoe— Want  of  Sineerir/ 


—Triennial  Cohabitation.] — In  a  suit  for  nullity 
of  marriage  on  the  ground  of  impotency,  there 
may  be  facts  and  circumstances  proved  which  so 
plainly  imply  on  the  part  of  the  complaining 
spouse  a  recognition  of  the  existence  and  validity 
of  the  marriage,  as  to  render  it  most  inequitable 
and  contrary  to  public  policy  that  he  or  she 
should  be  permitted  to  go  on  to  challenge  it  with 
effect,  but  the  doctrine  designated  as  the  "doc- 
trine of  want  of  sincerity"  in  an  action  of  this 
kind  has  .been  too  much  extended  in  Englis* 
decisions,  and  that  doctrine,  apart  from  "  appro- 
bate"  and  "reprobate,"  has  never  been  recog- 
nised by  the  Scotch  law.     Delay  in  raising  i 
suit  of  nullity  on  the  ground  of  impotency  is  a 
material  element  in  the  investigation  of  a  case 
which  upon  the  facts  is  doubtful ;  but  there  is 
no  definite  or  absolute  bar  arising  from  it   The 
Canon  Law  rule  of  triennial  cohabitation  has 
not  been  recognised  in  England   beyond  this 
point,  that  where  a  husband  or  a  wife  seeks  a 
decree  of  nullity  propter  impotentiam,  if  there  ■ 
no  more  evidence  than  that  they  have  for  a 
period  of  three  years  lived  together  in  the  same 
house,  and  with  ordinary  opportunities  of  inter- 
course, and  it  is  clearly  proved  that  there  has 
been   no  consummation,  then,  if    that  is  the 
whole  state  of  the  evidence,  inability  on  the 
part  of  the  one  or  of  the  other  will  be  presumed 
O.  v.  M.,  10  App.  Cas.  171 ;  63  L.  T.  398— H.  L. 
(Sc.). 

Grounds   of    Divorce — Condonation  tf 


Adultery.]— By  the  law  of  Scotland  full  con- 
donation of  adultery  (remission  expressly  or  by 
implication  in  full  knowledge  of  the  acts  for- 
given), followed  by  cohabitation  as  man  and 
wife,  is  a  remissio  injuria  absolute  and  uncondi- 
tional, and  affords  an  absolute  bar  to  any  a***0* 
of  divorce  founded  on  the  condoned  acts  of 
adultery.  Nor  can  condonation  of  adultery- 
cohabitation  following — be  made  conditional  by 
any  arrangement  between  the  spouses.  Although 
the  condoned  adultery  cannot  be  founded  on, 


1601 


SCOTLAND. 


1602 


condonation  does  not  extinguish  the  guilty  acts 
entirely,  and  they  may  be  proved  so  far  as  they 
tend  to  throw  light  upon  charges  of  adultery 
posterior  to  the  condonation.  The  doctrine  laid 
down  in  Durant  v.  Durant  (1  Hag.  Ecc.  Rep. 
it  p.  761)  not  approved  without  qualification. 
Dent  y.  Dent  (4  Sw.  fc  Tr.  106),  direction  of 
Lord  Penzance  to  the  jury,  questioned  on  prin- 
ciple, and  distinguished  from  Blandford  v. 
Blandford  (8  P.  D.  19).  Collin*  v.  Collins,  9 
App.  Cas.  205  ;  32  W.  R.  500— H.  L.  (Sc). 

A  wife  confessed  to  several  acts  of  adultery 
with  E.  Her  husband  forgave  her  and  resumed 
cohabitation  on  the  alleged  condition  that  she 
should  not  speak  or  hold  any  communication 
with  E.  again.  Subsequently  she  met  £.  by 
appointment  several  times  under  suspicious  cir- 
cumstances ;  but,  admittedly,  no  act  of  adultery 
coold  be  proved.  The  husband  sued  for  a 
cliaeolntion  of  the  marriage  on  the  ground  that 
the  condoned  adultery  was  revived  by  the  wife's 
subsequent  conduct : — Held,  that  to  obtain  a 
divorce  he  must  prove  adultery  subsequent  to 
the  condonation,  and  no  less.    lb. 

Per  Lord  Blackburn  : — The  doctrine  of  revival 
of  adultery  as  a  ground  on  which  a  divorce  has 
been  granted  is  to  be  strongly  objected  to  as 
varying  the  status  of  married  persons.  On 
principle,  a  reconciliation  being  entered  into 
with  full  knowledge  of  the  guilt  and  with  free 
and  deliberate  intention  to  forgive  it,  where  that 
reconciliation  is  followed  by  living  together  as 
man  and  wife,  the  status  of  the  couple  ought  to 
be  the  same  and  not  more  precarious  than  if 
there  was  a  new  marriage.    Io. 

Per  Lord  Blackburn  : — Assuming  it  to  be  now 
established  English  law  that  any  matrimonial 
offence,  though  forgiven,  may  be  revived  by  any 
other  matrimonial  offence  of  which  the  courts 
take  cognizance,  it  is  very  modern  law,  and  not 
io  obviously  just  and  expedient,  that  this  House 
ought  to  infer  that  it  either  was  or  ought  to  have 
been  introduced  into  the  law  of  Scotland.    lb. 

See  Lord  Watson's  opinion,  for  the  terms 
of  a  remission  of  adultery  which  would  not 
constitute  plena  condonatio  in  the  law  of  Scot- 
land,   lb. 

Harried  Woman  —  Separate  Estate  — 

leeeipt  of  Income  by  Husband— Presumption  of 
Gift.]— By  the  law  of  Scotland,  as  well  as  by 
that  of  England,  a  married  woman  may  make 
an  effectual  gift  of  her  separate  income  to  her 
husband  ;  with  this  difference,  that  by  Scotch  law 
she  has  the  privilege  of  revoking  the  donation, 
even  after  her  husband's  death,  and  reclaiming 
the  subject  of  her  gift  in  so  far  as  it  had  not 
been  consumed.  The  same  circumstances  which 
are  in  England  held  to  imply  donations  between 
husband  and  wife  are  sufficient  to  sustain  a 
similar  inference  in  Scotland.  Edward  v.  Cheync, 
13  App.  Cae.  386— H.  L.  (8c.). 

A  married  woman  living  with  her  husband  in 
Scotland  was  entitled  to  the  income  of  a  fund 
settled  for  her  separate  use,  which  stood  in  the 
names  of  trustees,  of  whom  her  husband  was 
one;  and  he  also  acted  as  factor  of  the  trust. 
Payments  of  income  were  at  first  lodged  in  a 
bank  to  the  credit  of  the  wife's  separate  account, 
then  to  the  credit  of  an  account  in  the  names  of 
both  husband  and  wife ;  but  for  many  years 
previous  to  the  husband's  death,  both  before  and 
after  he  became  sole  trustee,  the  income  was 
paid  into  the  husband's  private  banking  account, 


and  mixed  with  his  own  funds : — Held,  that  these 
circumstances  inferred  a  complete  gift ;  and,  in 
respect  it  had  not  been  revoked  by  the  wife, 
that  her  representatives  were  not  entitled  to  an 
account  of  the  husband's  intromissions  with  her 
separate  estate.    lb. 


Ante-nuptial  Settlement  by  Infant— Con- 


tract, by  what  Law  governed.]— The  appellant, 
a  domiciled  Irishwoman,  being  an  infant  without 
legal  guardian,  married  in  Ireland,  before  the 
passing  of  the  Infants'  Settlement  Act  (18  &  19 
Vict.  c.  43),  a  domiciled  Scotchman.  An  ante- 
nuptial settlement  was  executed.  After  the 
death  of  her  husband  she  commenced  the  present 
action  in  the  Scotch  courts  to  set  aside  the  settle- 
ment. No  evidence  was  given  as  to  the  capacity 
of  an  infant  to  execute  a  binding  contract  by 
the  law  of  Ireland  : — Held,  that,  the  point  being 
raised  in  the  pleadings,  the  house  must  take 
judicial  notice  that  by  the  law  of  Ireland  the 
settlement  was  not  binding  on  the  appellant, 
without  regard  to  whether  any,  or  what,  evidence 
of  the  law  of  Ireland,  as  a  matter  of  fact,  had 
been  given  in  the  court  below ;  and,  further, 
that  the  validity  of  the  settlement  was  not 
affected  by  the  fact  that  at  the  time  of  its 
execution  both  parties  contemplated  a  Scottish 
domicil  during  their  married  life.  Cooper,  v. 
Cooper,  13  App.  Cas.  88  ;  69  L.  T.  1— H.  L.  (8c.). 


Post-nuptial  Settlement  by  Husband — 


Wife's  Assent  to  life-rent  Provision  —  Jus 
reliota.] — A  testator,  between  whom  and  his 
wife  there  was  no  ante-nuptial  contract,  by  the 
third  purpose  of  his  settlement,  directed  his 
trustees  to  pay  over  the  whole  annual  income  of 
his  estates  to  his  wife  for  her  life  ;  and  by  the 
fourth  purpose  "  after  the  death  of  the  longest 
liver  of  me  and  my  wife  to  convert  into  money 
all  my  estate  and  with  her  consent  and  full 
approbation  (in  token  of  which  she  has  sub- 
scribed this  deed)  to  pay  "  certain  legacies.  The 
deed  contained  no  express  discharge  of  the 
wife's  terce  and  jus  relictae  ;  and  it  reserved  a 
power  to  the  testator  to  alter  or  revoke.  The 
wife  signed  the  deed  without  any  limitation 
being  attached  to  her  signature  in  the  testing 
clause.  She  survived  the  testator  for  two  months, 
bat  was  incapable  of  transacting  any  business 
during  that  period: — Held,  that  although  the 
wife '8  consent  to  the  deed  could  not  be  carried 
beyond  the  fourth  purpose,  except  so  far  as  it 
necessarily  implied  approval  of  the  other  pur- 
poses, yet  the  fourth  purpose  and  the  antecedent 
provision  of  life-rent  in  the  third  purpose  were 
bo  intimately  connected  that  the  wife  must  be 
held  to  have  accepted  the  provision,  and  there- 
fore, although  the  wife  had  the  power  to  revoke 
her  consent,  her  representatives  had  not,  and 
their  claim  to  her  terce  and  jus  relictae  was 
untenable.  Edward  v.  Cheync,  13  App.  Cas. 
373— H.  L.  (Sc). 

Lease— Joint  Tenants— Covenant  to  pay  Bent 
— Liability  of  Executors  of  deceased  Tenant 
during  Sole  Tenancy  of  Survivor.] — A  mineral 
lease  for  thirty-one  years  was  granted  to  L.  and 
M.,  "and  the  survivor  of  them,  but  expressly 
excluding  assigns,  and  sub-tenants,  whether 
legal  or  conventional."  By  the  lease  L.  and  M. 
bound  themselves  and  their  respective  heirs, 
executors  and  successors,  all  conjunctly  and 
severally  renouncing  the  benefit  of  discussion,  to 

S  F 


1603 


SCOTLAND. 


1604 


pay  the  rent.  The  lease  also  provided  that  if 
L.  or  M.  became  bankrupt  it  should,  in  the 
option  of  the  lessor,  become  void.  Shortly  after 
the  commencement  of  the  lease  L.  became  bank- 
rupt, and  M.  died,  but  the  lessor  never  exercised 
his  option  to  determine  the  lease  : — Held,  that 
by  the  terms  of  the  clause  of  obligation  the 
lessees  were  conjunctly  and  severally  liable  for 
rent  irrespective  of  their  interest,  and  that  after 
M.'e  death,  his  representatives,  though  they  had 
no  interest  as  tenants,  remained  liable  for  rent 
during  the  currency  of  the  lease.  Burn*  v. 
Bryan  or  Martin,  12  App.  Cas.  184— H.  L.  (Sc.). 

Market — Power  of  Corporation  to  let  Covered 
Portion  of  Market  for  other  Purposes.]— By  37 
&  38  Vict,  a  Ixxxv.,  s.  8,  the  corporation  of 
Edinburgh  (who  were  grantees  of  a  market  in 
Edinburgh)  "  may  cover  in  a  suitable  and  con- 
venient manner  the  fruit  and  vegetable  market- 
place, and  improve  and  better  adapt  the  same 
for  the  purposes  of  such  market,  and  for  the 
accommodation  of  parties  using  the  same,  and 
of  the  public,  &c.  Provided  always  that  the 
ground  floor  only  of  such  market-place  shall  be 
used  for  such  fruit  and  vegetable  market,  and 
that  all  vacant  portions  of  such  market-place, 
whether  on  the  ground  floor  or  above  the  same, 
and  all  vacant  and  unlet  stands,  stalls,  or  shops 
in  or  on  such  market-place,  may  be  let  or  used  by 
the  corporation  for  such  purposes  and  for  such 
'  rents  or  sales  as  to  them  shall  6eem  proper  : — 
Held,  that  the  corporation  were  not  entitled  to 
exclude  members  of  the  public  from  the  covered 

Sortion  of  the  market  during  market  hours  and 
evote  the  building  to  other  purposes.  Edin- 
burgh Magistrate*  v.  Blaokie,  II  App.  Cas.  665 
— H.  L.  (Sc.). 

Per  Lord  Watson  : — When  a  grant  of  market 
is  not  confined  to  any  particular  locality,  the 
grantee  may  from  time  to  time  change  the  site 
in  order  to  suit  his  own  convenience  ;  but  it  is 
an  implied  condition  of  the  exclusive  privilege 
that  he  shall  provide  a  market-place,  and  that 
implied  condition  is  satisfied  so  long  as  he  gives 
reasonable  accommodation  to  those  members  of 
the  public  who  use  the  market  either  as  buyers 
or  sellers,  and  the  extent  of  the  accommodation 
which  must  be  afforded  in  each  case  must  vary 
with  the  circumstances.    lb. 

Orders  —  Enrolment  of,  in  England.] — See 
Dundee  Suburban  Railway,  In  re,  ante,  coL  1491. 

Parent  and  Child— Entailed  Estates— Legitim 
— Exclusion  of  Apparent  Heir  in  ante-nuptial 
Oontraot  of  Marriage.  1 — Although  the  right  of 
children  may  be  barred  or  excluded  altogether, 
either  by  direct  renunciation  between  their 
father  and  them,  or  by  an  express  exclusion  of 
their  right  in  the  ante-nuptial  contract  of  their 
parents,  yet  their  right  cannot  be  barred  by  in- 
ference or  implication.  By  ante-nuptial  con- 
tract of  marriage  between  the  settlor,  the  heir  in 
possession  of  entailed  estates  and  his  intended 
wife,  dated  1851,  the  settlor,  after  reciting  &  4 
of  the  Aberdeen  Act  (5  Geo.  4,  c  87),  granted 
provisions  in  favour  of  the  children  of  the  mar- 
riage, other  than  and  excluding  the  heir  who 
should  succeed  to  the  entailed  estates  ;  he  also 
appointed  tutors  to  the  children,  and,  inter  alia, 
gave  directions  as  to  the  maintenance  and  edu- 
cation of  the  heir  as  well  as  the  other  children, 
*  which  provisions  before  conceived  in  favour  of 


the  children  of  the  marriage  are  hereby  declared 
to  be  in  full  satisfaction  to  them  of  all  bairns' 
part  of  gear,  legitim,  portions  natural,"  fcc.  :— 
Held,  that  the  claim  of  the  eldest  son  and  child 
of  the  marriage  who  succeeded  to  the  entailed 
estates  to  legitim  was  not  barred  by  the  marriage 
contract.  Kintore  (  Countess)  v.  Kintore  (Eart), 
11  App.  Cas.  294— H.  L.  (8c.). 


Acquiescence.]— A  son  remained  in  ignor- 


ance of  his  right  to  legitim  for  nearly  three  yean 
after  his  father's  death,  and  all  parties  acted  as 
if  legitim  was  not  due  : — Held,  the  son's  claim 
to  legitim  was  not  barred  by  acquiescence.   lb. 

Balo  of  Goods— Delivery— Mercantile  Law 
Amendment  (Scotland)  Act,  1856— Bankreptey 
of  Vendor.]— By  the  law  of  Scotland  the  effect 
of  the  appropriation  and  acceptance  of  a  specific 
chattel  by  the  contracting  parties  is  to  perfect 
the  contract  of  sale,  and  to  give  the  purchaser  a 
right  to  demand  delivery,  but  the  property  in 
the  chattel  does  not  pass  to  him  until  he  has 
obtained  delivery  under  the  contract ;  and  a  1  of 
the  Mercantile  Law  Amendment  (Scotland)  Act, 
1856  (19  fc  20  Vict.  c.  60)  imposes  no  limitation 
upon  the  right  of  the  vendor's  creditors  to  attach 
goods  in  his  custody  until  the  contract  of  sale 
has  been  so  perfected.    G.  and  Son,  a  firm  of 
engineers,  undertook  by  different  contracts  to 
supply  and  fit  up  engines  in  various  ships  wfakb. 
were  being  built  by  the  appellants,  who  were 
shipbuilders,  and  advances  were  made  by  the 
appellants  as  the  work  progressed.    An  agree- 
ment was  subsequently  entered  into  between  the 
parties  by  which  it  was  stipulated  that  on  pay- 
ment being  made  on  account  of  any  contract 
"  the  portions  of  the  subjects  thereof,  so  far  si 
constructed,  and  all  materials  laid  down  "  in  C. 
and  Son's  yard  "  for  the  purpose  of  constructing 
the  same,  shall  become  and  be  held  as  the  abso- 
lute property  of  "  the  appellants,  "  subject  only 
to  the  lien  of  C.  and  Son  "  for  the  «•  payment  of 
the  price,  or   any  balance  thereof  that  may 
remain  due."    At  the  date  of  this  agreement  C. 
and  Son  were  insolvent  to  the  knowledge  of  the 
appellants,  and  the  only  considerable  oontracti 
they  had  on  hand  were  the  contracts  with  the 
appellants,  which  it  was  then   known  weald 
result  in  a  loss.     It  was  important  to  the  appel- 
lants that  the  contracts  should  be  completed, 
and  they  continued  to  make  advances  to  C.  and 
Son  until  the  most  important   contract  wta 
completed.     After  that  G.   and   Son   became 
bankrupt : — Held,  that  there  had  been  no  sale 
of  any  specific  goods  to  the  appellants  within 
the  meaning  of  s.  1  of  the  .Mercantile  Lav 
Amendment  (Scotland)  Act,  1856,  nor  delivery 
of  possession,  and  that  the  appellants  were  not 
entitled,  as  against  the  trustee  in  G.  and  Son'i 
bankruptcy,  to  take  possession  of  the  rnaterials 
to  be  used  in  carrying  out  their  contracts,  which 
were  in  G.  and  Son's  yard  at  the  date  of  their 
bankruptcy.    Sooth  v.  Moore,  11  App.  Gas.  350; 
55  L.  J.,  P.  C.  54;   64  L.  T.  690  ;  6  Asp.  M  G. 
586— H.  L.  (8c). 

Bea-shore— Crown  Property — Bounding  Char, 
tor— "With  pertinent! "— Preacriptivt  Title- 
Beneficial  Possession — Acts  of  Ownership— 
Drift  Boa-ware.] — The  pursuer  brought  an  action 
to  establish  his  title  as  against  the  defenders 
and  the  Grown  to  the  foreshore  of  the  sea  ex 
adverso  land  of  which  he  was  the  proprietor. 


1605 


SCOTLAND. 


1606 


He  claimed  under  a  grant  of  fen  made  to  his 
ancestor  in  1804,  which  described  the  property 
granted  as  land  bounded  by  the  sea,  but  he  did 
not  endeavour  to  show  that  the  grantor  had  an 
express  title  from  the  Crown.     He,  however, 
endeavoured  to  prove  his  title  to  the  foreshore 
by  prescriptive  possession  following  on  his  own 
title,  and,  inter  alia,  adduced  evidence  to  show 
that  his  predecessor  in  1827  built  a  retaining 
wall  upon  a  portion  of  the  foreshore  ;  that  he  and 
his  predecessors  had  taken  stone  and  sand  from 
the  shore  ;  and  that  they  and  their  tenants  had 
exclusively  carted  away  the  drift  sea- ware.   The 
Crown,  on  the  other  hand,  adduced  evidence  to 
show  that  stones  and  sand  were  taken  from  the 
shore  to  build  a  harbour,  and  that  the  villagers 
had  carried  away  in  creels  drift  sea-ware : — Held, 
that,  notwithstanding  the  absence  of  an  express 
title  in  the  superior,  the  pursuer  had  given  suffi- 
cient proof  that  he  and  his  predecessors  had  been 
in  possession  of  the  foreshore  in  question  for  the 
prescriptive  period  specified  in  the  Scottish  Act 
of  1617,  c.  12,  and  the  Act  of  37  &  38  Vict.  c.  94, 
by  virtue  of  their  heritable  infeftments,  and  that 
he  had  consequently  a  valid  right  of  property  in 
the  solum  of  the  foreshore  as  against  the  Crown. 
Lord  Advocate  v.   Young,  12  App.  Cas.  544 — 
H.  L.  (Sc). 

Security  for  past  and  future  Advances  — 
Votice  of  Assignation  by  Debtor— Further  Ad- 
vances after  Hotioe.]— A  disponee  who  holds 
property  on  an  ex  facie  absolute  title  of  owner- 
ship, but  in  security  only  of  advances  made  and 
to  be  made  to  the  disponee,  is  not  entitled  to 
hold  the  property  for  repayment  of  advances 
made  after  he  has  received  notice  that  the  dis- 
poser has,  for  a  valuable  consideration,  conveyed 
ids  reversionary  right  in  the  property  to  another. 
The  principle  of  Hopkinson  v.  Bolt  (9  H.  L.  C. 
514)  followed.  Union  Bank  of  Scotland  v. 
National  Bank  of  Scotland,  12  App.  Cas.  53  ; 
56  L.  T.  208— H.  L.  (8c.). 

•vperior  and  Vassal.] — An  action  of  declarator 
of  tinsel  of  a  feu  ob  non  solutum  canonem  is  an 
irredeemable  adjudication  of  the  feu  in  favour 
of  the  superior ;  but  the  sub-f euar  can  protect 
himself  from  eviction  by  paying  the  superior's 
full  preferable  debt,  and  when  he  does  so  he  has 
a  claim  of  relief  pro  rata  against  all  the  owners 
of  the  land  on  which  that  debt  is  charged.  It 
is  provided  by  the  Scotch  statute  1597,  c.  250, 
that  the  vassal  shall  lose  the  feu  of  his  lands  by 
his  failure  to  pay  the  fen  duty  for  two  years 
together,  in  like  manner  as  if  an  irritant  clause 
to  that  effect  had  existed  in  his  feu  contract. 
By  fen  contract  A.  disponed  in  feu  farm  to  B. 
and  C.  five  acres  of  building  land,  with  an 
annual  reddendo  of  480/.  The  contract  of  feu 
contained  tbe  expressed  declaration  "that  in 
case  at  any  time  two  years'  feu  duty  shall  be 
fully  resting,  owing  and  unpaid  together,  then 
this  present  feu  right,  and  all  that  may  follow 
hereon,  shall,  in  the  option  of  the  superior, 
become  void  and  null.  B.  and  C.  divided  the 
lands  between  them,  and  each  granted,  inter 
alia,  sab-feus  (narrating  in  the  deeds  conveying 
the  land  the  above-mentioned  feu  contract)  of 
portions  of  the  five  acres  to  D.  and  E.  respec- 
tively. Upwards  of  four  years'  feu  duties  became 
due.  A.  raised  an  action  of  declarator  of  irri- 
tancy ob  non  solutum  canonem.  D.  and  E.  con- 
tended that  the  irritancy  must  be  confined  to 


the  mid-superiorities  created  by  B.  and  C, 
and  had  no  effect  on  the  portions  of  land 
sub-feued  on  their  tendering  the  sub-feu  duty 
reserved  on  each  : — Held,  that  the  superior's 
right  was  not  merely  a  charge  upon  the  mid- 
superiorities,  but  a  right  to  annul  tho  charter 
of  his  feuars  and  all  sub-feus  made  by  them,  to 
the  effect  of  resuming  the  full  beneficial  pos- 
session of  the  lands  feued ;  and  that  the  circum- 
stances did  not  warrant  the  conclusion  that  the 
superior  had  consented  to  the  sub-infeudation. 
Sandeman  v.  Scottish  Property  Society,  10 
App.  Cas.  553— H.  L.  (Sc). 

Warrandice— Liability  of  Executor— Disposi- 
tion with  Warrandice  Clause— Heir  and  Executor 
— Residue.] — The  grantor,  by  a  disposition  mortis 
causa  dated  1853,  conveyed  his  whole  heritable 
and  moveable  estate  to  trustees  for  the  purpose 
(inter  alia),  failing  heirs  of  his  own  body,  of 
conveying  his  estate  of  M.  and  his  other  lands 
in  the  county  of  Lanark  to  his  brother  under  a 
strict  entail.  By  codicil  dated  1876,  and  soon 
after  bis  marriage,  the  testator  disponed  to  his 
wife,  in  the  event  of  her  surviving  him,  the  lands 
of  B.  and  A.,  directing  these  lands  to  be  excepted 
out  of  the  lands  directed  by  the  deed  of  1853  to 
be  entailed ;  and  bequeathed  to  her  the  whole 
residue  of  his  estate.  By  a  previous  deed  he 
appointed  his  wife  as  his  sole  executrix.  The 
disposition  of  B.  and  A.  to  the  wife  contained  a 
clause  of  warrandice  in  ordinary  form  under  the 
Titles  to  Land  Consolidation  Act  of  1868  (31  & 
32  Vict  c.  101),  s.  8,  Sched.  B„  which  under  s.  8 
imports  an  absolute  warrandice.  In  1882  he 
granted  a  bond  and  disposition  in  security  for 
250,000*.  over  the  estates  of  «« M.,"  •«  B.,"  and 
"  A."  On  the  grantor's  death  his  widow  claimed 
that  no  part  of  the  debt  of  250,0002.  was  payable 
out  of  B.  and  A.,  or  out  of  residue,  but  that 
the  whole  debt  was  entirely  chargeable  against 
"  M."  : — Held,  that  the  testator  had  in  imposing 
the  obligation  of  warrandice  used  words  limited 
in  their  significance  to  personal  obligation,  and 
that  his  widow  as  personal  representative  and 
executrix  must  herself  discharge  the  obligation 
of  warrandice.  Montrose  (Dowager  Dvchc**)  v. 
Stuart,  13  App.  Cas.  81— H.  L.  (Sc). 

Way— Public  Bight — Proscription — Non-user 
for  long  Period.] — According  to  the  law  of  Scotr 
land,  the  constitution  of  a  public  right  of  way 
does  not  depend  upon  any  legal  fiction,  but 
upon  the  fact  of  user  by  the  public  as  matter  of 
right,  continuously  and  without  interruption  for 
forty  years.  And  the  amount  of  user  must  be 
such  as  might  have  been  reasonably  expected  if 
the  road  in  dispute  had  been  an  undoubted  public 
highway.  Also,  the  user  must  be  a  user  of  the 
whole  road  as  a  means  of  passage  from  one 
terminus  to  the  other,  and  must  not  be  such  a 
user  as  can  be  reasonably  ascribed  either  to 
private  servitude  rights  or  to  the  licence  of  the 
proprietor.  The  continued  exclusion  of  the 
public  from  the  use  of  an  alleged  public  road 
for  thirty-seven  years  will  not,  per  se,  destroy  a 
pre-existent  right  of  public  way  unless  it  is 
maintained  for  the  prescriptive  period  of  forty 
years,  but  it  is  strong  evidence  that  no  such 
public  right  ever  existed.  Mann  v.  Brodie,  10 
App.  Cas.  378— H.  L.  (Sc.). 


3*2 


1607 


SEA. 


1608 


SEA. 

Fishery.]—  See  Fish  and  Fishery. 

Insurance.] — See  Insurance  (Marine). 

Sea-wall — Prescriptive  Liability  to  Bepair— 
Extraordinary  Storm.] — A.  was  a  frontager  in  a 
level  on  the  Essex  shore  of  the  Thames  under 
the  jurisdiction  of  commissioners  of  sewers.  An 
ancient  sea-wall  protected  the  level  against  in- 
cursions of  the  Bea.  There  was  evidence  proving 
a  prescriptive  liability  on  the  frontagers  in  the 
level  to  maintain  and  repair  the  portions  of  this 
wall  respectively  fronting  their  lands.  Part  of 
the  wall  in  front  of  A.'s  land  was  destroyed  by 
an  extraordinary  storm  and  high  tide.  This  part 
of  the  wall  was  previously  in  good  repair  and  in 
a  proper  condition  to  resist  the  flow  of  ordinary 
tides  and  the  force  of  ordinary  storms : — Held, 
following  Keighletfs  case  (10  Rep.  139)  and  Rex 
v.  Somerset  (8  T.  K.  312),  that  in  the  absence  of 
evidence  that  the  prescriptive  liability  of  the 
frontagers  extended  to  the  repair  of  damage 
caused  by  extraordinary  violence  of  the  sea,  the 
liability  to  repair  the  damage  thus  caused  to  the 
wall  fell  not  upon  A.  but  upon  the  whole  of  the 
level.  Fobbing  Commissioners  v.  Reg,,  11  A  pp. 
Gas.  449  ;  56  L.  J.,  M.  C.  1 ;  65  L.  T.  493 ;  34 
W.  R.  721 ;  51  J.  P.  227— H.  L.  (K.). 

Presentment  of  Jury  of  Liability  of  Front- 
ager— Disqualification  of  Commissioner  by  reason 
of  Interest] — The  presentment  of  a  j  ary  at  a  court 
of  sewers  in  1861  found  that  the  then  owner  of 
A. '8  land  was  bound  by  reason  of  his  tenure  to 
repair  a  portion  of  the  sea- wall  fronting  the  land 
so  as  to  prevent  the  influx  of  the  waters.  In 
1881-2  the  commissioners  of  sewers  made  orders 
upon  A.  as  the  owner  of  the  land  to  repair  this 
portion  of  the  wall,  it  having  been  destroyed  by 
the  aforesaid  extraordinary  storm  and  high  tide. 
These  orders  were  made  "  upon  reading  the  pre- 
sentment "  of  1861.  One  of  the  commissioners 
who  made  the  orders  was  personally  interested 
as  an  owner  of  lands  within  the  level : — Held, 
that  the  orders  were  bad  and  must  be  quashed  : 
first,  because,  following  Reg.  v.  Wharton  (2  B.  & 
S.  718),  s.  13  of  3  &  4  Will.  4,  c.  22,  which  enables 
orders  to  be  made  upon  a  previous  presentment, 
does  not  authorise  an  order  upon  a  person  who 
has  become  owner  of  the  land  since  the  present- 
ment ;  secondly,  because  the  presentment  being 
only  of  the  ordinary  liability  did  not  justify  an 
order  to  make  good  damage  caused  by  an  extra- 
ordinary storm  : — Held,  also,  that  if  the  commis- 
sioners had  made  the  orders  under  the  powers  of 
s.  33  of  the  Land  Drainage  Act,  1861  (24  &  25 
Vict  c.  133)  they  must  themselves  have  found  as 
a  fact  A.'s  liability  ;  that  if  they  had  exercised 
such  a  jurisdiction  they  would  have  been  acting 
judicially,  and  that  in  that  case  the  orders  would 
have  been  invalidated  by  the  fact  that  one  of 
the  commissioners  was  disqualified  by  reason  of 
interest.    lb. 

Vesting — Jurisdiction  of  Commissioners.] 

— S.  10  of  the  Sewers  Act,  1883  (amending  23 
Hen.  8,  c  5).  by  which  all  walls,  banks,  &c, 
adjoining  the  sea  or  tidal  rivers  are  to  be  within 
the  jurisdiction  of  the  commissioners,  does  not 
vest  such  walls,  &c,  in  the  commissioners  until 


they  have  taken  them  within  their  jurisdiction 
in  the  manner  described  in  s.  47.  West  Norfolk 
Farmers1  Manure  Company  v.  ArchdaU,  16 
Q.  B.  D.  754  ;  55  L.  J.,  Q.  B.  230 ;  64  L.  T.  561 ; 
34  W.  B.  401 ;  50  J.  P.  500— C.  A, 

Sea-shore  not  a  "  Street,  Highway,  or  Public 
Place."]— See  Gas  Company. 

Foreshore,  Possession  of— Prescription,]— See 
Lord  Advocate  v.  Young,  ante,  coL  1605. 

Bight  of  Aeeess  to  Sea — Foreshore.]— On  a 
petition  of  right  against  the  government  for 
damages  done  to  the  petitioner's  tenement  by 
the  execution  of  reclamation  and  other  works 
upon  the  foreshore  in  front  of  it : — Held,  that 
the  petitioner  by  virtue  of  his  tenement  had  the 
same  right  of  access  to  the  sea  as  a  riparian  pro- 
prietor has  in  respect  to  a  tidal  river.  Attorney- 
General  of  Straits  Settlement  v.  Weutyu,  13 
App.  Cas.  192  ;  57  L.  J.,  P.  C.  62 ;  58  L.  T.  358 
—P.O. 


SEAMEN. 


See  SHIPPING. 


SEARCH    WARRANT. 

Malicious  Application  for.] — See  Malicious 
Procedure. 


SECURED    CREDITOR. 


See  BANKRUPTCY. 


SECURITY    FOR    COSTS. 

Of  Appeal.]— See  Appeal,  II.  6. 

Appeals  from  County  Court] — See  Couhtt 
Court,  6,  e. 

On  Petitions  to  Wind  up  Companies.]— Sts 
Company,  XI.  3,  b. 

In  other  Cases.]— See  Practice,  III.  A.  8, 4. 


SEDITION. 

See  CRIMINAL  LAW,  IL  37. 


1609 


SETTLEMENT— Settlements. 


1610 


SEPARATE    ESTATE. 

See  HUSBAND  AND  WIFE. 


SEPARATION  DEEDS  AND 
AGREEMENTS. 

See  HUSBAND  AND  WIFE. 


SEQUESTRATION. 

See  ECCLESIASTICAL  LAW— EXECUTION. 


SERVANT. 

See  MASTER  AND  SERVANT. 


SERVICE   OF   WRITS,  ETC. 

See  PRACTICE. 


SESSIONS. 

8ee  JUSTICE   OF  THE   PEACE. 


SET-OFF. 

Bet-off  and  Counter-claim.]— &*  Practice. 

la  Winding  np  of  Companies.] — See  Com- 
pact. 

la  Bankruptcy.] — See  Bankruptcy. 
la  cam  of  Cotts.]— See  Costs. 


SETTLEMENT. 

I.  Settlements. 

1.  Generally,  1610. 

2.  Apportionment  of  Fundi  Received  or 

Lost,  1614. 

3.  Forfeiture  of  Life  Interest,  1616. 

4.  Construction,  1616. 

-  5.  Marriage  Settlements. —See  HUSBAND 
and  Wife. 

6.  Voluntary  Settlements— 13  Eliz.  c.  5— 

27  Eliz.  e.  L—See  Fraud. 

7.  Power  of  Appointment — Exercise  by 

Will.— See  Will. 

8.  Powers  of  Trustees  under.— See  Trust 

and  Trustee. 

9.  Rectification  of— See  Deed  and  Bond. 

II.  Settled  Land  and  Estates. 

1.  Settlement,  1620. 

2.  Who  entitled  to  Sell. 

a.  In  General,  1620. 

b.  Infants,  1626. 

c.  Married  Women,  1627. 

d.  Trustees,  1627. 

3.  What  Property  may  be  Sold  or  Let 

1630. 

4.  Leases,  1632. 

5.  Effect  of  Settled  Land  Act  on  Fin 

feiture  Clauses,  1633. 

6.  Capital  Moneys. 

a.  What  are,  1633. 

b.  Application  of. 

l.  Costs     and     Incumbrances, 

1633. 
ii.  Improvements,  1636. 
iii.  In  other  Cases,  1638. 

III.  Of  Paupers.— See  Poor  Law. 


I.  SETTLEMENTS. 
1.  GENERALLY. 

Protector  of  Settlement— Who  is.]— The  per- 
son who,  under  the  Fines  and  Recoveries  Act, 
s.  22,  is  the  protector  of  the  settlement,  as  being 
the  "owner  of  the  prior  estate"  to  the  estate 
tail,  is  the  person  who  is  beneficially  entitled  to 
the  rents  and  profits.  Ainslie,  In  re,  Ainslie  v. 
Ainslie,  54  L.  J.,  Ch.  8  ;  51  L.  T.  780  ;  33  W.  R. 
148— Pearson,  J. 

A  freehold  estate  was  devised  to  trustees  for  a 
term  of  ninety-nine  years,  if  the  testator's  son 
M.  should  so  long  live,  upon  trust  to  manage  the 
estate  and  to  pay  thereout  a  yearly' sum  of  260/. 
to  M.  for  life  ;  and,  subject  thereto,  to  pay  the 
surplus  of  the  rents  and  profits  to  the  person  for 
the  time  being  entitled  in  reversion  immediately 
expectant  upon  the  term  to  the  rents  and  profits. 
Upon  the  expiration  or  sooner  determination  of 
the  term,  the  estate  was  devised  to  the  use  of 
the  testator's  son  fl.  for  life,  with  remainder  to 
H.'s  sons  in  tail  male  :— Held,  that  H.  was  the 
protector  of  the  settlement.    lb. 

Jurisdiction  of  Court  to  Order  Expenditure  of 
Trust  Money  for  Preservation  of  Estate.] — Land 
and  money  were  vested  in  the  trustees  of  a 
settlement  for  the  benefit  of  the  husband  and 
wife  for  their  lives,  and  after  their  deaths  for 


1611 


SETTLEMENT— Settlements. 


1612 


their  children.  The  buildings  on  a  farm  on  the 
land  were  so  much  out  of  repair  as  to  make  the 
farm  untenantable  : — Held,  that  the  Court  had 
power  under  its' original  jurisdiction  to  sanction 
the  expenditure  of  part  of  the  money  in  repairing 
the  farm  buildings.  Conway  v.  Fenton,  40  Ch. 
D.  512 ;  58  L.  J.,  Ch.  282  ;  59  L.  T.  928  ;  37 
W.  R.  156 — Kekewich,  J.  See  also  Hotehkys, 
In  re,  Freke  v.  Calmady,  32  Ch.  D.  408;  55 
L.  J.,  Ch.  546  ;  55  L.  T.  110 ;  34  W.  R.  569— 
C.  A. 

A  testator  gave  his  residuary  personal  estate 
and  devised  his  real  estate  (subject,  as  to  the 
real  estate  only,  to  two  annuities)  to  his  son  for 
life,  and  then  to  his  children  who  were  infanta. 
A  farm  on  the  estate  was  vacant.  On  summons 
by  the  trustees  for  the  sanction  of  the  court  to 
the  advance  of  1,000/.  to  the  tenant  for  life  to 
stock  the  farm,  the  court,  holding  that  it  was  for 
the  preservation  of  the  estate,  made  the  order. 
Household,  In  re,  Household  v.  Household,  27 
Ch.  D.  553  ;  51  L.  T.  319— V.-C.  B. 

Power  of  Sale — Extinguishment]— J.  W.,  by 
his  will,  devised  hereditaments,  subject  to  certain 

Erior  charges  and  estates,  to  the  use  of  J.  O.  and 
is  assigns  during  his  life,  with  remainder  to  the 
use  of  his  first  and  other  sons  in  tail  male.    The 
will  contained  a  power  of  sale  exerciseable  by 
the  trustees  "  at  the  request  in  writing  of  any 
person  who  by  virtue  of  this  my  will  shall  be 
tenant  for  life  in  possession "  of  the  heredita- 
ments.   J.  0.,  and  his  eldest  son  F.  O.,  by  dis- 
entailing deed,  conveyed  the  settled  heredita- 
ments to  a  trustee  to  hold  the  same  [subject  to 
the  prior  uses  and  estates  (other  than  the  uses 
or  estates  limited  to  J.  O.  during  his  life),  but 
discharged  from  the  said  estate  in  tail  and  all 
subsequent  estates]  to  such  uses  as  J.  O.  and  F.  0. 
should  by  deed  jointly  appoint,  and,  in  default 
of  such  appointment,  to  such  and  the  same  uses 
and  subject  to  such  and  the  same  powers  as  were 
subsisting  immediately  before  the  execution  of 
the  disentailing  deed.     By  deed  of  resettlement, 
J.  0.  and  F.  0.  jointly  appointed  that  the  here- 
ditaments should  from  that  date  [but  subject  to 
the  prior  uses  and  estates  (other  than  the  uses 
and  estates  limited  to  J.  0.  and  his  assigns  for 
his  life),  and  subject  also  to  certain  mortgage 
debts  which  had  been  created]  remain  to  the 
uses  thereinafter  declared  ;  and,  subject  to  cer- 
tain rent-charges,  the  hereditaments  were  limited 
to  the  use  of  J.  0.  and  his  assigns  during  his  life 
"  in  restoration  and  by  way  of  continuance  and 
confirmation  of  the  former  life  estate  of  J.  0. 
under  or  by  virtue  of  the  will,"  with  remainders 
over.    It  was  then  provided  that  nothing  therein 
contained  should  prejudice  or  affect  the  power  of 
sale  contained  in  the  will : — Held,  that  J.  0.  was 
still  tenant  for  life  in  possession  by  virtue  of  the 
will,  and  that  the  power  of  sale  was  therefore 
still  exerciseable  by  the  trustees  of  the  will  at 
his  request.     Wright  to  Marshall,  In  re,  28  Ch. 
D.  93  ;  54  L.  J.,  Ch.  60  ;  51  L.  T.  781  ;  33  W.  R. 
304 — Pearson,  J. 

Permanent  Improvements — Trusts  of  Minority 
Term— Option  to  Trustees  to  pay  Charges  out  of 
Inoome  or  Capital.  1 — By  a  deed,  executed  two 
years  before  his  will,  a  testator  devised  estates 
in  Glamorganshire!  which  comprised  a  canal, 
harbour  and  docks  at  Cardiff,  and  also  estates  in 
the  counties  of  Bedford,  Herts  and  Durham,  to 
A.  B.  and  C,  upon  trust  out  of  rents  and  profits 


and  sums  to  be  raised  by  sale  or  mortgage,  to 
pay  expenses,  salaries,  mortgage  debts,  and  the 
residue  to  the  settlor.    He  empowered  the  trus- 
tees to  enlarge,  improve,  and  make  additional 
works  at  Cardiff,  ana  to  manage  the  estates,  with 
powers  of  leasing,  sale,  and  mortgage.    By  his 
will,  dated  two  months  before  the  birth  of  his 
first  son,  the  testator  devised  the  Glamorganshire 
estates  (except  Cardiff  Castle,  park,  and  lands 
adjoining)  to  B.  and  C.  and  their  heirs  for  a  term 
of  1,500  years,  and  subject  thereto  to  the  use  of 
hiB  first  son  for  life,  remainder  to  his  first  and 
other  sons  in  tail  male.    The  trusts  of  the  1,600 
years*  term  were  declared  to  be,  after  payment 
out  of  income  of  certain  annuities,  of  a  specified 
sum  for  certain    repairs,  "  by    mortgaging  or 
otherwise  disposing  of  the  term  ....  or  by, 
with  and  out  of  the  rents,  issues  and  profits 
of  the  same  hereditaments  ...  or  by  one  . . . 
or  all  of   the   aforesaid  wayB  and  means,  or 
by  any  other    reasonable    ways  and   means " 
to  raise  moneys  sufficient  for  the  above  pur- 
poses, and  with  the  moneys  to  arise  from  the 
sale  of  the  estates  in  Bedford,  Herts,  and  Durham, 
to  satisfy  the  trusts  of  such  sale.    The  trustees 
of  the  term  were  empowered  to  manage  and  im- 
prove the  hereditaments  comprised  in  the  term 
in  the  same  manner  as  the  trustees  of  the  deed. 
Testator  then  directed  that,  during  the  minority 
of  a  tenant  for  life  of  the  Glamorganshire  estates, 
D.  and  A.  should  enter  into  possession  and  receipt 
of  the  rents  and  profits  of  the  same  hereditaments, 
and  thereout  keep  down  the  interest  on  mort- 
gages, and  maintain  mansion-houses  and  grounds, 
and  pay  the  surplus  to  the  trustees  of  the  1,500 
years'  term  for  the  purposes  thereof,  and  u  subject 
thereto,  and  after  the  trusts  of  the  said  term  of 
1,500  years  shall  be  fully  performed  or  satisfied," 
apply  any  annual  sum  they  might  think  proper  for 
the  maintenance  of  the  minor,  and  invest  the  sur- 
plus and  accumulate  the  income  for  his  benefit  oa 
attaining  majority.   The  trusts  of  the  proceeds  of 
sale  of  the  Bedford,  Herts,  and  Durham  estates 
were  declared  to  be  :  (1)  to  pay  debts,  including 
mortgage  debts  on  the  Glamorganshire  estates; 
and  (2)  to  purchase  lands  to  be  settled  as  before. 
Six  months  after  the  birth  of  his  first  son,  testator 
died,  and  during  the  minority  the  trustees  of  the 
1,500  years'  term  laid  out  upwards  of  1,000,0001. 
in  enlarging  and  improving  the  canal,  docks,  and 
harbour,  and  in  other  works.  This  sum  was  largely 
paid  out  of  income : — Held,  that  the  expenditure 
was  a  charge  on  the  corpus  of  the  estates  com- 
prised in  the  term.    Bute  (Marqvui),  In  re,  Bute 
(Marquis)  v.  Ryder,  27  Ch.  D.  196  ;  32  W.  R. 
996— V.-C.  B. 

Bequest  of  Fund  to  be  Settled — Form  of  Set- 
tlement— Costs,  how  Paid.] — A  testator  be- 
queathed as  follows  :  "  To  my  daughter  A.,  wife 
of  M.  W.,  I  bequeath  10,000/.  This  amount  to 
be  settled  upon  her  for  her  life,  and  to  be  in- 
vested for  her  in  good  securities  in  the  names  of 
two  or  more  trustees.  At  her  death  8,000f.  of 
the  above  sum  to  be  divided  equally  amongst  her 
children,  and  the  remaining  2,0001.  to  be  given 
to  her  husband,  if  living ;  if  deceased,  then  the 
whole  amount  is  to  be  equally  divided  amongst 
her  children."  The  daughter  and  her  husband 
and  child  applied  for  the  sanction  of  the  court 
to  a  settlement  of  the  legacy  ;  but  it  was  held 
that  a  settlement  was  unnecessary,  and  it  was 
ordered  that  the  fund  should  be  paid  into  court 
and  the  income  paid  to  the  daughter  for  life, 


1618 


SETTLEMENT— Settlements. 


1614 


with  liberty  to  apply  on  her  death  ;  and  the  exe- 
cutrix was  ordered  to  pay  the  costs  out  of  the 
residue: — Held,  on  appeal,  that  a  settlement 
ought  to  be  directed,  treating  the  directions  in 
the  will  as  instructions  for  a  settlement : — That, 
on  the  construction  of  the  will,  the  settlement 
must  be  so  framed  as  to  make  the  contingent 
gift  of  2,000*.  to  "  her  husband  if  living  "  apply 
only  to  M.  W.,  and  not  to  any  future  husband, 
ana  so  as  to  confine  the  trusts  in  favour  of  the 
daughter's  children  to  her  children  by  him  : — 
Held,  further,  that  the  settlement  ought  to  be 
framed  so  as  to  restrain  the  daughter  from  an- 
ticipating the  income,  and  so  as  to  make 
the  fund  divisible  only  among  children  who 
being  sons  should  attain  twenty-one,  or  being 
daughters  attain  that  age  or  marry,  and  that  it 
ought  to  contain  the  usual  powers  of  mainte- 
nance and  advancement,  and  a  power  of  appoint- 
ment by  the  daughter  in  default  of  children, 
with  the  usual  limitations  to  herself  or  her  next 
of  kin  in  default  of  appointment,  but'  not  any 
power  of  appointment  among  the  children,  as 
such  a  power  would  be  inconsistent  with  the 
direction  for  equal  division.  Oliver  v.  Oliver 
<10  Ch.  D.  766)  distinguished  :— Held,  that  the 
costs  ought  to  be  paid  out  of  the  legacy  and  not 
out  of  the  residuary  estate.  Parrott,  In  re, 
Walter  v.  Parrott,  33  Ch.  D.  274  ;  55  L.  T.  132  ; 
34  W.  R.  653— C.  A. 

Voluntary — By  Mortgagor — Sale  by  Mort- 
gagee under  Powers— Title  to  Surplus  Money.]— 
A.  B.  having  mortgaged  estates  in  fee  simple, 
subsequently  made  a  voluntary  settlement  of  the 
same  estates  and  all  his  interest  therein  to 
grantees  to  uses  to  hold,  subject  to  the  mortgage 
and  to  a  power  of  raising  a  sum  of  money  for 
himself,  to  the  use  of  himself  for  life,  with  re- 
mainder to  his  first  and  other  sons  in  tail,  with 
remainders  over.  The  mortgagee  afterwards  sold 
the  estates  under  the  power  of  sale  in  the 
mortgage,  and  after  retainer  of  his  debt  and 
costs  paid  the  balance  of  the  sale  moneys  into 
court  under  the  Trustee  Belief  Act.  Upon  a 
petition  for  payment  out,  A.  B.  contended  that 
the  sale  had  destroyed  the  voluntary  settlement, 
and  that  the  persons  claiming  thereunder  had  no 
equity  against  the  sale  moneys,  which  must  be 
treated  as  if  the  sale  had  been  made,  by  A.  B. 
himself :— Held,  that  the  voluntary  settlement 
was  a  complete  disposition  by  the  settlor  of  the 
proceeds  of  the  sale  of  the  estate  in  case  the 
prior  mortgagee  should  exercise  his  power,  and 
that  the  volunteers  under  the  settlement  were 
entitled  as  against  the  settlor  to  the  fund  in 
court.  Walhamvton  Estate,  In  re,  26  Ch.  D. 
391  ;  63  L.  J.,  Ch.  1000  ;  51  L.  T.  280  ;  32  W.  R., 
S74— Kay,  J. 

Trust  for    Accumulation  —  Trust   for 

Benefit  of  Mortgagees.]— By  a  voluntary  settle- 
ment certain  freehold  estates  were  settled, 
subject  to  the  mortgages  subsisting  thereon,  to 
the  use  of  the  settlor  for  life,  with  remainder  to 
the  use  of  trustees  for  500  years,  and  subject 
thereto  in  strict  settlement.  And  the  trusts  of 
the  term  were  declared  to  be  that  the  trustees 
should  during  the  period  of  twenty-one  years 
from  the  death  of  the  settlor  receive  out  of  the 
rents  of  the  estate  the  annual  sum  of  1,000Z.  and 
accumulate  it  at  compound  interest,  and  should 
at  the  expiration  of  that  period,  or  from  time  to 
time  during  that  period,  as  they  might  think  fit, 


apply  the  accumulated  fund  in  satisfaction  of 
the  mortgages  then  charged  on  the  estate,  and 
should  pay  the  surplus  of  the  rents  to  the  person 
entitled  to  the  immediate  reversion  of  the  estate. 
Seven  years  after  the  death  of  the  settlor  the 
first  tenant  in  tail  in  possession  barred  the  entail 
and  acquired  the  fee  simple  subject  to  the  mort- 
gages ;  and  he  then  claimed  the  right  to  stop  the 
accumulations  and  to  receive  the  accumulated 
fund  and  the  whole  future  rents  of  the  estate : — 
Held,  that  the  mortgagees  were  cestuis  que  trust 
under  the  deed  equally  with  the  owner  of  the 
estate,  and  that  he  could  not  stop  the  accumula- 
tions or  receive  the  accumulated  fund  without 
their  consent.  The  doctrine  of  Garrard  v. 
Lauderdale  (2  Russ.  &  My.  451)  does  not  apply 
to  provisions  for  creditors  which  do  not  come 
into  operation  till  after  the  death  of  the  settlor. 
Fitzgerald's  Settlement,  In  re,  37  Ch.  D.  18  ;  57 
L.  J.,  Ch.  594  ;  57  L.  T.  706  ;  36  W.  R.  385— 
C.  A. 

Exercise  of  Powers  by  Trustee — Death  of 
Bankrupt] — The  Bankruptcy  Act,  1869,  which 
for  this  purpose  is  in  the  same  words  as  the 
Bankruptcy  Act,  1883,  does  not  enable  a  trustee 
to  exercise  after  the  bankrupt's  death  a  power 
which  at  the  commencement  of  the  bankruptcy 
the  bankrupt  might  have  exercised  for  his  own 
benefit.  By  L.'s  marriage  settlement  certain 
lands  were  at  the  date  of  his  bankruptcy  vested 
in  trustees  in  trust  for  L.  for  life  with  remainder 
as  he  should  appoint,  and  in  default  of  appoint- 
ment to  T.  L.  died  pending  the  bankruptcy, 
without  having  exercised  the  power.  After  his 
death  the  trustee  in  bankruptcy  contracted  to 
sell  the  property : — Held,  that  he  could  not 
make  a  good  title  under  the  power,  yicholl* 
and  Mxey's  Contract,  In  re,  29  Ch.  D.  1005  ;  52 
L.  T.  803 ;  33  W.  R.  840— Pearson,  J. 


2.  APPORTIONMENT    OP    FUNDS    RE- 
CEIVED  OR   LOST. 

Insufficient  Mortgage  Security  —  Compound 
Interest.] — Money  which  was  settled  by  a  testa- 
tor's will  was  invested  by  the  trustees  of  the  will 
on  mortgage.  The  interest  fell  into  arrear,  and 
when  the  mortgaged  property  was  sold  it  realised 
a  sum  less  than  the  principal  of  the  mortgage 
money  : — Held,  that  the  sum  realised  by  the  sale 
must  be  apportioned  between  the  tenant  for  life 
of  the  settled  money  and  the  persons  entitled  to 
it  in  remainder,  in  the  proportions  which  the 
principal  of  the  mortgage  money  (which  belonged 
to  the  persons  entitled  in  remainder)  and  the 
arrears  of  interest  (which  belonged  to  the  tenant 
for  life)  bore  to  one  another,  without  any  com- 
putation of  compound  interest.  Moore,  In  re, 
Moore  v.  Johnson,  54  L.  J.,  Ch.  432  ;  52  L.  T. 
510 — Pearson,  J. 

Windfalls  ^-Capital  or  Income.]— A  large  par 
of  the  income  of  a  settled  estate  was  derived  from 
the  thinnings  and  cuttings  of  larch  plantations , 
and,  during  a  tenancy  for  life,  high  winds  blew 
down  a  very  large  proportion  of  the  larches,  and 
it  became  necessary  for  the  good  cultivation  of 
the  estate  to  remove  almost  the  whole  of  those 
which  remained.  It  was  estimated  that  it  would 
take  forty  years  for  the  plantations  to  yield  the 
same  income  as  before  : — Held,  that  the  tenant 


1615 


SETTLEMENT— Settlements. 


1616 


for  life  was  not  entitled  to  receive  the  proceeds 
of  sale  either  of  the  trees  not  blown  down 
but  which  had  to  be  removed,  or  of  the  trees 
which  were  actually  blown  down,  but  that  the 
whole  of  the  proceeds  of  sale  must  be  invested 
as  capital.  But  held,  that  the  tenant  for  life 
was  entitled  to  receive  out  of  the  income  aris- 
ing from  the  invested  fund  and  the  plantations 
a  fixed  annual  sum,  equal  to  the  average  in- 
come which  would  have  been  derived  from  the 
plantations  if  no  gales  had  occurred — such  sum, 
if  necessary,  to  be  made  up  out  of  capital ;  the 
trustees  to  be  at  liberty  to  nave  recourse  to  the 
investments  or  the  income  of  the  plantations 
for  the  purpose  of  fresh  planting.  Harrison, 
In  r«,  Harrison  v.  Harrison,  28  Ch.  D.  220  ;  54 
L.  J.f  Ch.  617 ;  62  L.  T.  204  ;  33  W.  B.  240— 
C.  A. 

Business  on  Trust  for  Successive  Tenants  for 
Life — Loss  during  First,  Profit  during  Second, 
Tenancy  for  Life.]— In  an  action  to  execute  the 
trusts  of  a  settlement,  by  which  (inter  alia)  a 
business  was  assigned  to  trustees  on  trust  for 
successive  tenants  for  life  and  remaindermen,  a 
receiver  and  manager  was  appointed  to  carry  on 
the  business.  During  the  life  of  the  first  tenant 
for  life  the  business  was  carried  on  by  the  re- 
ceiver at  a  loss  ;  during  the  life  of  the  second 
tenant  for  life  profits  were  earned  : — Held,  that 
the  loss  must  be  made  good  out  of  the  subsequent 
profits,  and  not  out  of  capital.  Upton  v.  Brovon, 
26  Ch.  D.  688  ;  64  L.  J.,  Ch.  614  ;  51  L.  T.  691  ; 
32  W.  R.  679— Pearson,  J. 

Minerals — Coals  won  by  Innocent  Trespassers 
— Compensation  Moneys.] — Minerals  were  de- 
vised by  will  upon  trust  for  B.  for  life  without 
impeachment  of  waste,  with  remainder  on  trust 
for  the  defendant  for  life  without  impeachment 
of  waste,  with  remainders  over.  During  the  life, 
and  also  after  the  death  of  B.,  part  of  these 
minerals  were  won  by  instroke  by  the  owners  of 
adjoining  mines,  who  had  trespassed  innocently 
and  paid  compensation  moneys  for  so  doing  : — 
Held,  that  the  moneys  paid  in  respect  of  the 
minerals  so  won  during  the  respective  lives  of  B. 
and  the  defendant,  belonged  to  the  estate  of  B. 
and  to  the  defendant  respectively.  Harrington, 
In  ret  Oamlen  v.  Lyon,  38  Ch.  D.  523  ;  56  L.  J., 
Ch.  175  ;  56  L.  T.  87  ;  35  W.  R.  164— Kay,  J. 


Coals  required  for  Support  of  Railway — 

Compensation  Moneys.]-- The  minerals  were  leased 
by  the  testator.  A  railway  passed  over  a  portion 
of  the  lands  under  which  they  lay,  and  after  the 
death  of  B.,  the  lessee  gave  the  railway  company 
notice  of  his  desire  to  work  the  minerals  lying 
under  and  adjoining  a  portion  of  the  railway. 
The  company  gave  a  counter  notice  that  these 
minerals  were  required  for  the  support  of  the 
railway,  and  ultimately  paid  compensation 
money,  part  of  which  was  apportioned  as  paid 
in  respect  of  the  lessor's  interest : — Held,  that  as 
the  minerals  in  respect  of  which  the  compensa- 
tion money  had  been  paid  were  not  of  such 
extent  that  they  could  not  possibly  have  been 
got  during  the  life  of  the  existing  tenant  for  life, 
the  defendant,  as  such  tenant  for  life,  was 
entitled  to  such  apportioned  part  of  the  com- 
pensation money  under  the  74th  section  of  the 
Lands  Clauses  Consolidation  Act,  1846.    lb. 


3.  FORFEITURE    OF    LIFE    INTEREST. 

Effect  of  Settled  Land  Act.] — See  post,  col. 
1633. 

On  Alienation— Marriage  Settlement]— L 
was  entitled  to  a  life  interest  under  a  voluntary 
settlement  in  one-fourth  part  of  certain  funds, 
with  remainder  to  his  children  who  should  attain 
twenty-one,  or  die  under  that  age,  with  remainder 
over.  The  settlement  contained  a  proviso  for  the 
determination  of  his  life  interest  and  the  accele- 
ration of  the  subsequent  remainders  if  he  should 
alien,  dispose  of,  mortgage,  charge,  or  in  any  wise 
incumber  his  life  interest,  or  if  by  reason  of  bank- 
ruptcy, insolvency,  or  otherwise  the  income  of  the 
f  unds  could  no  longer  be  personally  enjoyed  by 
him,  but  would  but  for  that  proviso  become  vested 
in  or  payable  to  any  person  or  persons  other 
than  him.  By  a  subsequent  settlement  made  on 
his  marriage,  L.,  amongst  other  property, 
assigned  to  trustees  the  share  to  which  he  was 
entitled  under  the- former  settlement,  upon  trust 
to  continue  the  trust  funds  in  their  then  present 
investments,  or  upon  the  written  request  of  L-,  and 
after  his  death,  upon  such  request  or  at  such  dis- 
cretion as  therein  mentioned,  to  sell  the  same, 
and  pay  the  income  of  the  proceeds  to  L.  during 
his  life,  and  after  his  death  to  his  wife  during 
her  life,  with  remainder  for  the  issue  of  the 
marriage  as  L.  and  his  wife  jointly,  or  the  sur- 
vivor, should  appoint,  and  in  default  for  all  the 
children  of  the  marriage  in  equal  shares :— Held, 
that  no  forfeiture  of  L.'s  life  interest  was  pro- 
duced by  the  marriage  settlement,  for  the  assign- 
ment contemplated  by  the  forfeiture  clause  was 
one  by  reason  of  which  the  income  of  L-'s  share 
would  become  payable  to  some  person  other  than 
him,  whereas  by  the  marriage  settlement  the 
life  interest  was  assigned  to  trustees  for  his 
benefit.  Lockwood  v.  Slices,  51  L.  T.  562— 
Kay,  J. 

On  Bankruptcy.] — See  Bankruptcy,  XYIL 


4.  CONSTRUCTION. 

"Eldest  or  only  Son."]— Sir  C.  D.  (who died 
in  1857),  by  deed  in  1852,  appointed  a  fund  to 
trustees  in  trust  for  his  daughter  Lady  W.,  for 
life,  and  after  her  death  in  trust  for  the  child  or 
all  the  children,  "  except  an  eldest  or  only  son,** 
if  more  than  one,  of  Lady  W.,  who  should  attain 
twenty-one  or  marry,  and  failing  such  trusts 
then  over.  Lady  W.  died  in  1883,  having  had 
four  children  only,  viz.,  Thomas,  her  eldest  born 
son,  who  attained  twenty-one  in  January,  1869, 
and  died  in  April  following ;  Sir  F.  WM  who 
attained  twenty-one  in  1880;  Helena,  who  at- 
tained twenty-one  in  1865 ;  and  Edith,  who  died 
in  infancy,  in  1864  ;  so  that  the  fund  vested  in 
Helena  (subject  to  let  in  other  children)  in  the 
lifetime  of  the  eldest  born  son,  and  before  he 
attained  twenty-one.  At  the  date  of  the  deed 
certain  estates  stood  limited  under  a  settlement, 
to  which  Sir  C.  D.  was  a  party,  to  the  use  of 
Sir  T.  W.  (the  husband  of  Lady  W.)  for  life, 
with  remainder  to  the  use  of  the  first  and  other 
sons  of  Sir  T.  and  Lady  W.  in  tail  male.  In 
March,  1869,  Sir  T.  W.  and  his  son  Thomas 
disentailed  the  estates,  and  limited  them  to  the 
appointees  of  both,  or  of   the  survivor.    Tne 


1617 


SETTLEMENT— Settlements. 


1618 


joint  power  was  not  exercised ;  but  after  the 
death  of  Thomas,  Sir  T.  W.  by  will  appointed 
the  estates  to  Sir  F.  W.  for  life,  with  remainder 
to  his  sons  in  tail  male.  Upon  Lady  W.'s  death, 
Sir  F.  W.  claimed  half  the  fund,  and  Helena 
the  whole  of  it : — Held,  that,  if  the  expression 
"eldest  or  only  son  "  was  to  be  read  as  referring 
to  a  son  entitled  under  a  settlement  to  settled 
estates,  the  time  for  ascertaining  the  excluded 
•an  would  be  the  time  for  distributing  the 
younger  children's  portions ;  but  that  if  that 
expression  was  to  be  read  according  to  its  natural 
meaning,  the  time  of  Testing  would  be  the  time 
for  exclusion.  Domrrile  v.  Winnington,  26  Ch.  D. 
382 ;  53  L.  J.,  Ch.  782  ;  50  L.  T.  519  ;  32  W.  E. 
6W-Kay,  J. 

Held,  also,  that  the  words  an  "  eldest  or  only 
son"  prima  facie  mean  an  individual,  and  that 
is  there  was  an  eldest  son  in  existence  when  the 
provision  vested  in  Helena,  the  clause  of  exclusion 
applied  to  him,  and  its  operation  was  exhausted, 
so  that  any  other  son  who  attained  twenty-one 
wis  entitled  to  take -.—Held,  therefore,  that  Sir 
P.  W.  was  entitled  to  one-half  of  the  fund. 
Matthew  v.  Paul  (3  Sw.  328)  observed  upon. 

11  Inne."]  — "Issue,"  when  collocated  with 
parent,  is  to  be  taken  in  the  restricted  sense  of 
children  ;  and  this  doctrine  applies  to  a  deed  as 
well  as  to  a  will.  Barracltmgh  v.  Skill  it  o,  53 
U  J.,  Ch.  840  ;  32  W.  R.  876— Chitty,  J. 

There  is  no  inflexible  rule  that  if  the  word 
uiasneM  is  evidently  used  in  one  clause  of  a 
settlement  as  meaning  "  children  "  only,  it  must 
he  construed  in  the  same  sense  in  every  other 
clause.  Warren's  Trust*,  In  re,  26  Ch.  D.  208  ; 
«  L.  J.,  Ch.  787 ;  50  L.  T.  454  ;  32  W.  R.  641— 
Pearson,  J. 

Ultimate   Limitation  to  "right   Heirs"    of 
•trangers— Ho  Kale  Heirs— Joint  Tenancy  or 
Tenancy  in  Common.]— By  a  settlement,  dated 
in  1866,  real  estate  was  settled  to  the  use  of 
trustees  during    the   life    of  A.  upon  certain 
trusts,  and  after  his  death  to  the  use  of  B. 
for  life,  with  remainder  to  trustees  to  preserve 
contingent  remainders,  with  remainder  to  his 
first  and  other  sons  successively  In  tail  male,  and 
for  default  of  such  issue  to  the  use  of  the  "  right 
km"  of  C.  for  ever.    C.  had  no  estate  of  his 
own  in  the  property.    He  died  in  1854.    His 
"right  heirs  "  at  the  time  of  his  death  were  three 
asters  and  five  daughters  of  a  deceased  sister. 
The  preceding  limitations  all  failed.    The  pre- 
sent survivors  of  the  "  right  heire  "  were  four  of 
the  five  daughters  of  the  deceased  sister.     The 
question  was  whether  the  heirs  took  as  personse 
designate  or  as  coparceners.     On  the  one  hand 
it  was  contended  that  the  persons  who  were  the 
"right  heirs"  took  as  joint  tenants,  so  that  the 
estate  was  now  vested  in  the  survivors ;  on  the 
other  hand,  that  the  "  right  heirs ' '  took  as  tenants 
in  common,  and  that  consequently  their  shares 
(Bated  by  descent  or  devise  to  the  several  parties 
claiming  under  them : — Held,  that  the  persons 
who  were  the  " right  heirs"  of  C.  at  his  death 
took  as.  persons  designate,  and  as  joint  tenants, 
and  not  as  coparceners  with  descent  from  them 
as  such ;  so  that  on  the  death  of  one  of  them  the 
share  did  not  pass  by  her  will  or  descend  to  her 
heirs,  bat  survived  to  the  others ;  and,  there- 
fore, that  the  estate  was  now  vested  in  the  four 
•arriving   daughters   of    the   deceased   sister. 


Beren*  v.  Fellcnces,  56  L.  T.  391 ;  35  W.  R.  356 
—Kay,  J. 

Covenant  by  Settlor  for  Payment  of  sum  of 
Money  during  his  Life  or  after  his  Death — 
4 '  Free  from  all  Deductions  " — Succession  Duty.  1 
— The  father  of  a  married  woman  covenanted 
with  trustees  for  payment  to  them  at  such  time 
or  times  during  his  life  as  he  should  think  fit,  or 
within  twelve  calendar  months  after  his  death  „ 
of  the  sum  of  10,000/.  "  free  from  all  deductions 
whatsoever,"  and  for  payment  to  them  in  the 
meantime  of  an  annuity  of  200/.,  the  principal 
sum  and  the  annuity  to  be  held  upon  the  trusts 
therein  mentioned  for  the  daughter  and  her 
familv.  The  covenantor  did  not  pay  any  part 
of  the  10,000/.  in  his  lifetime,  but  after  his 
death  his  executor  paid  to  the  trustees  the  full 
sum  of  10,000/.  The  Crown  claimed  succession 
duty  from  the  trustees,  who  paid  it,  and  claimed 
repayment  from  the  executor  on  the  ground  that 
the  10.000/.  was  to  be  paid  free  from  all  deduc- 
tions. Both  parties  agreed  that  the  fund  was 
liable  to  succession  duty,  and  argued  the  case  on 
that  footing  : — Held,  that  if  the  duty  was  pay- 
able it  must  be  borne  by  the  fund,  for  that  the 
relation  between  the  trustees  and  the  executor 
was  simply  that  of  creditors  and  debtor,  that  the 
executor  was  not  liable  to  be  called  on  by  the 
Crown  for  the  duty,  and  that  when  he  had  paid 
the  10,000/.  in  full  to  the  trustees,  he  had  dis- 
charged his  testator's  obligation,  and  was  not 
concerned  with  the  question  whether  succession 
duty  was  payable.  Whether  any  succession  duty 
was  payable  on  the  death  of  the  covenantor, 
quaere.  Iliggine,  In  re,  Day  v.  Turnell,  31  Ch. 
D.  142  ;  55  L.  J.,  Ch.  235  ;  54  L.  T.  199  ;  34  W. 
R.  81— C.  A. 


Power  of  Appointment  —  Eevocation  and 
Hew  Appointment — Successive  Appointments — 
Priority.]— By  deed  of  October,  1860,  the  donee 
of  a  power  of  appointing  6,000/.  amongst  his 
children,  irrevocably  appointed  500/.  to  his 
daughter  B.,  and,  subject  to  revocation,  appointed 
the  5,500/.  residue  to  his  daughter  C.  By  a 
subsequent  deed  the  appointment  of  5,500/.  to 
C.  was  revoked,  and  the  hereditaments  subject 
to  the  power  were  charged  with  1,600/.  to  C.  and 
3,900/.  to  B.,  in  lieu  of  the  5,500/.  charged  by  the 
first  deed,  and  "subject  and  without  prejudice 
to  the  trusts  for  raising  the  500/.,"  trusts  for 
raising  the  1,600/.  and  3,900/.  were  declared. 
This  deed  contained  a  power  of  revocation  and 
new  appointment,  confined,  however,  to  the 
3,900/.  By  a  subsequent  deed  the  appointment 
of  3,900/.  was  revoked,  and  that  sum  was 
appointed  between  B.  and  C.  in  the  proportions 
of  300/.  to  B.  and  3,600/.  to  C,  in  addition  to  the 
sums  of  500/.  and  1,600/.  then  respectively 
remaining  charged  thereon — and  it  was  directed 
that  all  the  sums  raisable  under  the  trusts  of  the 
term  under  the  three  deeds,  should  be  charged 
and  chargeable  on  the  property  pari  passu  and 
without  priority  : — Held,  that  the  500/.  irrevoc- 
ably appointed  by  the  first  deed  had  priority 
over  the  other  charges,  and  that  this  priority 
was  unaffected  by  the  direction  that  the  charges 
should  rank  pari  passu  and  without  priority ; 
and  accordingly  that,  subject  to  any  question 
as  to  election,  the  500/.  had  priority,  and  that 
the  several  charges  amounting  to  5,500/.  stood 
subsequent  to  the  500/.,  but  inter  se  ranked  pari 


1619 


SETTLEMENT— Settled  Land  and  Estates. 


1620 


passu.  Wilson  v.  Xenriek,  31  Ch.  D.  658 ;  55 
L.  J.,  Ch.  525  ;  54  L.  T.  461— Chitty,  J. 

Excessive  Exercise — Delegated  Power  to 

Appoint] — The  donee  of  a  limited  power  of 
appointment  amongst  his  own  children  appointed, 
by  his  will,  to  his  son  for  life  ;  and,  after  his 
decease,  for  the  children  of  the  son,  as  he  should 
appoint ;  and,  in  default  of  appointment,  to  the 
son  absolutely.  The  son  died  without  having 
attempted  to  exercise  the  delegated  power : — 
Held,  that  the  ultimate  limitation  in  favour  of 
the  son  was  valid.  Williamson  v.  Farnell  or 
Farwell,  35  Ch.  D.  128  ;  56  L.  J.,  Ch.  645  ;  56 
L.  T.  824  ;  36  W.  R.  37— North,  J. 


Fraud  on  Power— Portions — Appoint- 


ment to  Infant  Children— Time  of  Vesting.] — 
Appointments  vesting  immediately  portions 
charged  on  land  in  young  children  who  die  soon 
afterwards,  will  be  looked  at  by  the  court  with 
suspicion  ;  and  very  little  additional  evidence  of 
improper  motive  or  object  will  induce  the  court 
to  Bet  them  aside ;  but  without  some  additional 
evidence  the  court  will  not  do  so.  There  is  no 
rule  of  law  by  which  every  power  for  raising 
portions  for  children,  in  whatever  way  it  is 
expressed,  is  subject  to  the  limitation  that  the 
portions  are  not  raisable  under  it  unless  the 
children  live  to  want  them.  Henty  v.  Wrry, 
21  Ch.  D.  332  ;  53  L.  J.,  Ch.  667  ;  47  L.  T.  231  ; 
30  W.  R.  850— C.  A. 

A  settlement  of  land  contained  a  power  to 
tenants  in  possession  to  charge  portions  for 
younger  children,  and  gave  the  appointor  full 
power  to  fix  the  ages  and  times  at  which  such 
portions  should  vest.  Under  this  power  the 
tenant  for  life  in  possession,  having  three 
daughters,  aged  nine,  seven  and  one,  by  deed  in 
1828,  appointed  the  aggregate  amount  which  he 
was  entitled  to  charge  for  the  portions  of  the 
daughters  to  be  a  vested  interest  in  them  imme- 
diately on  the  execution  of  the  appointment, 
and  to  be  paid  to  them  at  such  times  after  his 
death  as  he  should  appoint ;  and  in  default,  at 
their  age  of  twenty-one  or  marriage  if  after  his 
death,  or  if  the  same  should  happen  in  his  life- 
time then  the  payment  to  be  postponed  till  after 
his  death.  There  was  also  a  direction  for  mainten- 
ance from  his  death  and  a  power  of  revocation.  In 
1832  he  executed  a  similar  appointment  by  way 
of  confirmation.  The  two  younger  daughters 
afterwards  died  at  the  respective  ages  of  fourteen 
and  eighteen,  and  the  father  appointed  half  the 
fund  to  be  raised  and  paid  after  his  death  to  the 
surviving  daughter,  and  in  1875  he  assigned  to 
the  plaintiff  for  value  the  other  moiety  ap- 
pointed to  the  two  deceased  daughters  : — Held, 
that  the  appointment  was  not  a  fraud  upon  the 
power,  and  that  the  plaintiff  was  entitled  to 
have  the  remaining  moiety  raised  for  his  benefit 
lb. 

Portions — Priority— Execution  of  Power.]— 
The  priority  of  annuities  and  of  portions 
appointed  under  a  power  and  secured  by  a  term, 
determined  by  the  position  of  the  term  in  the 
original  deed  creating  them.  Motley  v.  Motley 
(5  Ves.  248)  explained.  Power  to  W.  B.  (a 
tenant  for  life  of  settled  lands  with  remainder 
to  his  male  issue  in  tail),  by  any  deed  or  writing, 
to  be  by  him  sealed,  delivered  and  attested  by 
two  or  more  witnesses,  to  appoint  to  any  woman 
or  women  whom  he  might  marry,  such  grant  to 


be  either  prior  or  subsequent  to  the  said  marriage, 
for  the  life  or  lives  of  such  woman  or  women 
respectively,  a  rent-charge  not  exceeding  5001., 
ana  also  by  such  deed  or  writing,  executed  and 
attested  as  aforesaid,  to  charge  the  lands  with 
any  sum  or  sums  of  money  by  way  of  porticos 
for  his  younger  children,  provided  that  the  said 
portions  should  not  in  any  event  exceed  4,0001 
W.  B.,  on  his  marriage,  in  1858,  by  deed-Doll 
appointed,  in  events  which  happened,  6002.  a 
year  jointure   to  be  raised  for  his  wife,  and 
2,0001.  portions  for  his  younger  children,   In 
1869,  W.  B.  made  a  will,  reciting  that  he  had  no 
male  issue,  and  thereby  appointed  an  additional 
sum   of    2,0002.    to    be    raised    for  his  two 
daughters : — Held,  that  it  was  not  obligatory 
upon  the  donee  of  the  power  to  exercise  the 
power  of  jointuring  and  charging  portions  by 
one  and  the  same  instrument ;  and  that  the 
appointment  of  the  additional  2,0002.  by  the 
will  was  valid.      Bevan  v.   Beran,  13  L.  IL 
Ir.  53. 


II.    SETTLED  LAVD  AED  E8TAT1A 

1.  SETTLEMENT. 

Definition— Original  and  Derivative  Battle- 
ments.]— When  a  complete  settlement  of  land 
has  been  made,  and  derivative  settlements  bate 
been  afterwards  made  by  persons  who  take 
interests  (not  yet  in  possession)  under  the 
original  settlement,  the  original  settlement 
alone  is  the  settlement  for  the  purposes  of  the 
Settled  Land  Act.  KnowleS  Settled  Estates,  h 
re,  27  Ch.  D.  707  ;  54  L.  J.,  Ch.  264  ;  51  L.  T. 
655  ;  38  W.  R.  364— Pearson,  J. 


2.    WHO  ENTITLED  TO  SELL. 
a.  In  General. 

" Tenant  for  Life" — Power  of 
of  Trustees  of  Settlement — Votiee.]— -Except  in 

a  case  mentioned  in  s.  15,  a  tenant  for  life  has, 
under  the  Settled  Land  Act,  1882,  an  absolnte 
power  of  selling  the  settled  land  without  the 
consent  or  control  of  the  trustees  of  the  settle- 
ment, unless  they  have  reason  to  believe  that  any 
intended  exercise  of  the  power  is  improper,  in 
which  case  they  may  apply  to  the  court  for  direc- 
tions under  s.  44.  Consequently,  neither  tbeiact 
that  at  the  time  the  tenant  for  life  enters  into  a 
contract  for  sale  there  are  no  trustees  of  the  settle- 
ment under  the  Act,  nor,  when  there  are  any, 
the  fact  that  no  notice  has  been  given  them  by 
the  tenant  for  life,  under  s.  45,  sub-s,  1,  of  hit 
intention  to  proceed   to  a   sale,  prevents  bis 
making  a  statutory  title.    It  is  sufficient  for  the 
protection  of  the  purchaser  if  by  the  tine  be 
comes  to  complete  there  are  trustees  under  the 
Act  to  whom  he  may  pay  his  purchase-sMnsY  a* 
required  so  to  do  by  the  tenant  for  life 
s.  22,  and  notice  has  been  given  them  under  a,  ti» 
sub-s.  1 ;  though,  under  sub-s,  3,  a  purchaser 
dealing  in  good  faith  with  the  tenant  for  life  u 
not  concerned  to  inquire  respecting  the  giving 
of  the  notice ;  but,  quere,  whether  a  purchaser 
incurs  liability  by  completing  his  purchase  with 
actual  knowledge  that  no  notice  has  been  given. 
Hatten  v.  Russell,  38  Ch.  D.  334  ;   67  I*  JM  Ch. 
425  ;  58  L.  T.  271  ;  36  W.  R.  317— Kay,  J. 


1621 


SETTLEMENT— Settled  Land  and  Estate*. 


1622 


The  relative  position  and  powers  of  a  tenant 
for  life  and  the  trustees  of  a  settlement  under  the 
Settled  Land  Acts,  1882  and  1884,  considered. 
lb. 

Equitable  Tenant  for  Life— Bight  to  receive 
Eents — Power  of  Leasing.]— A  testatrix  by  her 
will  directed  her  trustees  to  stand  possessed  of 
the  net  rents  of  her  real  estate,  upon  trust  to 
pay  the  same  to  Mrs.  W.,  a  married  woman,  for 
life,  for  her  separate  use,  her  receipt  alone  to  be 
a  sufficient  discharge  to  the  trustees ;  and  the 
testatrix  directed  her  trustees,  out  of  the  rents 
of  her  real  estate,  to  keep  in  repair  all  the  build- 
ings on  the  estate  during  the  period  of  their 
trust,  and  also  the  chancel  of  P.  Church.  No 
power  of  sale  or  leasing  was  contained  in  the 
▼ill :— Held,  that,  notwithstanding  the  direction 
to  the  trustees  with  respect  to  repairs,  Mrs.  W. 
was  equitable  tenant  for  life  of  the  settled  land, 
and,  as  such,  was  entitled  to  be  let  into  the 
possession  and  management  of  the  estate,  upon 
her  undertaking  to  see  to  the  repairs.  But,  that, 
inasmuch  as  there  were  no  trustees  of  the  settle- 
ment created  by  the  will  for  the  purposes  of  the 
Settled  Land  Act,  1882,  Mrs.  W.  was  not  entitled 
to  exercise  the  powers  of  a  tenant  for  life  under 
that  act  until  trustees  of  the  settlement  were 
appointed,  and  a  proper  notice  of  her  intention 
was  given  them.  Bentley,  In  re,  Wade  v.  Wilson, 
54  L.  J.,  Ch.  782  ;  33  W.  R.  610-  Pearson,  J. 

Persons  entitled  to  bid  at  Sale— life  Estates 
bought  back.]  —  Under  a  settlement  land  was 
appointed  to  the  use  of  a  father  for  his  life,  and 
arter  his  death  to  the  use  of  trustees  during  the 
life  of  his  son  W.,  and  after  his  death  to  the  use 
of  his  sons  successively  in  tail  male,  with  re- 
mainder to  the  use  of  the  trustees  during  the 
life  of  the  father's  son  G.,  with  remainders  over. 
And  it  was  declared  that  the  appointments  to 
the  trustees  were  made  on  trust  that  they 
should,  as  soon  as  might  be,  absolutely  sell  the 
life  estates  and  pay  the  net  proceeds  of  sale  to 
W.  and  G.  in  equal  shares  as  tenants  in 
common.  And  it  was  provided  that  until  sale 
the  rents  and  profits  of  the  life  estates  should 
he  paid  to  W.  and  G.  in  equal  shares  as  tenants 
in  common.  And  W.  and  G.  covenanted  with 
the  father,  and  also  separately  with  the  trustees, 
that  neither  of  them  would  claim  to  have  the 
We  estates  thereby  appointed  made  over  to 
them  or  either  of  them  in  specie,  it  being  the 
intention  of  the  parties  that  the  trusts  for  sale 
should  be  absolute  and  irrevocable,  notwith- 
standing any  law  of  equity  authorising  bene- 
ficiaries of  proceeds  of  sale  to  elect  to  take  the 
property  in  lien  of  theproceeds  of  sale.  After  the 
death  of  the  father,  W.  and  G.  contracted  to  sell 
some  of  the  land  in  fee.  The  purchaser  objected 
that  the  vendors  were  not  tenants  for  life  within 
themeanineof  the  Settled  Land  Act,  1882:— Held, 
that  as  either  W.  or  G.  alone  or  both  of  them 
together  might  bid  at  any  sale  by  the  trustees, 
they  must  be  treated  as  if  they  had  bought  the 
life  estates  back,  in  which  case  they  would  be 
tenants  for  life,  and  could  therefore  sell  under 
the  powers  of  the  act.  Hale  and  Clarke,  In  re, 
or  Hale  and  Smyth,  In  re,  66  L.  J.,  Ch.  550  ;  55 
L.  T.  161  ;  34  W.  R.  624— Pearson,  J. 

Biseretionary  Trust  for  Application  ef  Income 

daring  Life.]— A  trust,  although  it  be  to  last 
during  the  life  of  A.,  to  apply  the  rents  and 


profits  of  an  estate  for  the  benefit  of  A.  and  his 
wife  and  his  children,  if  any,  does  not  constitute 
A.,  or  A.  and  his  wife  together,  a  tenant  for  life 
of  the  estate  under  s.  2,  sub-s.  6,  of  the  Settled 
Land  Act,  1882,  or  a  person  with  the  powers  of 
a  tenant  for  life  under  s.  58  of  that  act  Atkin- 
son, In  re,  Atkinson  v.  Bruce,  31  Ch.  D.  577  ;  54 
L.  T.  403  ;  34  W.  R.  445— C.  A.  Affirming  65 
L.  J.,  Ch.  49— Pearson,  J. 

"Possession. "]— The  word  "possession,"  in  s.  2, 
sub-B.  5,  and  in  s.  68,  sub-s.  1,  is  to  be  read  as  in 
antithesis  to  "  remainder  "  or  **  reversion."    lb. 

"  So  entitled."]— The  words  "  so  entitled,"  in 
8.  2,  sub-s.  6,  mean  entitled  under  the  direction 
in  the  preceding  sub-section,  i.e.,  for  life.    lb. 

Ho  Legal  or  Equitable  Estate  in  Possession.] 

—A  testator,  who  died  in  1884,  by  his  will  made 
in  1874,  devised  his  residuary  real  estate  to 
trustees  upon  trust,  during  the  period  of  twenty 
years  after  his  death,  out  of  the  rents  to  manage 
and  superintend  his  real  estate  and  improve  the 
same,  and  to  accumulate  or  invest  in  the  pur- 
chase of  land  the  unapplied  part  of  the  rents, 
and  after  the  determination  of  the  said  term  of 
twenty  years  to  settle  and  assure  the  devised 
and  purchased  real  estate  to  the  uses  and  upon 
the  trusts  of  an  existing  settlement  under  which 
the  testator's  son  took  certain  estates  as  tenant 
for  life  :  —  Held,  that  the  testator's  son,  not 
having  any  estate  or  interest  in  possession  until 
the  determination  of  the  term,  had  not,  during 
its  continuance,  the  powers  of  a  tenant  for  life 
under  the  Settled  Land  Act  with  respect  to  the 
hereditaments  devised  by  the  wilL  Strangways, 
In  re,  Hickley  v.  Strangways,  34  Ch.  D.  423 ; 
56  L.  J.,  Ch.  195  ;  56  L.  T.  714  ;  35  W.  R.  83— 
C.  A. 

Owner  of  Undivided  Moiety— Concurrence  of 
other  Owner.]— The  tenant  for  life  of  an  un- 
divided moiety  of  land,  where  the  other  un- 
divided moiety  is  out  of  settlement,  cannot  sell 
the  moiety  of  which  he  is  tenant  for  life,  without 
the  concurrence  of  the  owner  of  the  other  un- 
divided moiety.  Colling  e' 8  Settled  Estates,  In 
re,  36  Ch.  D.  516 ;  57  L.  J.,  Ch.  219  ;  57  L.  T. 
221 ;  36  W.  R.  264— North,  J. 

Conditional  Life  Estate— Forfeiture  by  JTon- 
residence— Invalidity  of  Condition.]- A  testator 
devised  his  B.  estate  to  the  use  of  his  son,  "  so 
long  as  he  shall  reside  in  my  present  dwelling- 
house,  or  upon  some  part  of  my  B.  estate,  for 
not  less  than  three  months  in  each  year  after  he 
shall  become  entitled  to  the  actual  possession 
thereof  "  ;  and  after  the  death  of  the  son,  pro- 
vided that  he  should  have  complied  with  the 
condition,  to  such  uses  for  the  benefit  of  his 
children  as  he  should  by  will  appoint ;  and,  in 
default  of  such  appointment,  or,  if  he  should  fail 
in  compliance  with  the  above  condition,  on  the 
determination  of  his  estate  therein,  to  the  use  of 
trustees,  on  trust  for  sale  and  distribution,  of  the 
proceeds  of  sale  among  the  son's  children : — 
Held,  that  the  son  had  the  powers  of  a  tenant 
for  life  under  the  Settled  Land  Act,  and  could 
sell  the  estate,  and  that,  notwithstanding  the 
condition  as  to  residence,  he  would,  by  virtue  of 
s.  51  of  the  act,  be  entitled  to  the  income  of  the 
proceeds  of  sale  daring  his  life.    Paget' s  Settled 


1623 


SETTLEMENT— Settled  Land  and  Estates. 


1624 


Estates,  In  re,  30  Ch.  D.  161  ;  55  L.  J.,  Ch.  42  ; 
58  L.  T.  90 ;  33  W.  R.  898— Pearson,  J. 

Direction  for  postponed  Sale — Contingent  In- 
terest— Persons  entitled  Concurrently— Trust 
for  Accumulation.]  —  Devise  in  1874  of  real 
estates  to  trustees  upon  trust  for  sale,  but  with 
a  direction  that  testator's  M.  estate  should  not 
be  sold  until  the  expiration  of  twenty-one  years 
from  the  date  of  his  will ;  for  the  purpose  of 
transmission  the  real  estate  to  be  impressed  with 
the  quality  of  personalty  from  the  time  of  his 
death  ;  the  rents  of  the  real  estates  previous  to 
conversion  to  be  applied  in  the  same  manner  as 
the  income  of  the  proceeds  of  sale ;  after  pay- 
ment of  debts  and  legacies  the  surplus  proceeds 
of  sale  to  be  invested  and  (in  the  events  that 
happened)  the  capital  to  be  held  in  trust  for  all 
the  testator's  children  who  being  sons  should 
attain  twenty-five,  and  being  daughters  should 
attain  twenty- five  or  marry  under  that  age,  and 
if  more  than  one  in  equal  shares.  The  trustees 
were  empowered  to  apply  the  whole,  or  such 
part  as  might  be  required,  of  the  annual  income 
of  the  share  to  which  any  child  might  be  entitled 
in  expectancy  for  his  or  her  maintenance  or 
education,  with  a  direction  to  accumulate  the 
unapplied  surplus  of  the  income  in  augmentation 
of  the  share  whence  such  income  should  have 
proceeded,  and  eventually  to  devolve  in  the  same 
manner.  The  testator  died  in  February,  1888, 
leaving  six  children,  two  sons  who  had  attained 
twenty-one,  but  were  under  twenty-five ;  and 
three  sons  and  one  daughter,  who  were  infants  : 
— Held,  that  the  children  could  not  exercise  the 
powers  of  tenants  for  life  over  the  M.  estate, 
and  that  that  estate  could  not  be  sold  undci 
88.  63,  58,  or  59  of  the  Settled  Land  Act,  1882. 
Home's  Stttled  Estate,  In  re,  39  Ch.  D.  84  ; 
57  L.  J.,  Ch.  790  ;  59  L.  T.  580  :  37  W.  R.  69 
— C.  A. 

Trust  for  Sale.]— There  was  no  trust  or  direc- 
tion for  sale  within  s.  63.     lb.  per  North,  J. 

Person  entitled  to  Income  under  Trust  for 
Payment.]— A  testator  by  will  dated  in  1883  de- 
vised an  estate  to  the  use  of  tmstees  for  a  term 
of  1,300  years  and  subject  thereto  to  his  son 
H.  8.  for  life,  with  remainders  over  in  strict 
settlement.  The  trusts  of  the  term  were  to  raise 
portions,  to  pay  annuities,  H.  S.  being  one  of 
the  annuitants,  and  to  apply  the  residue  as  a 
sinking  fund  to  pay  off  mortgage  debts  and  other 
charges.  It  was  estimated  that  the  trusts  of  the 
term  would  require  from  fifteen  to  twenty  years 
for  their  fulfilment.  The  testator  directed  that 
the  trustees  should  "  during  the  continuance  of 
the  last-mentioned  trusts  "  enter  into  and  hold 
possession  of  the  rents  and  profits  of  the  estate 
"  and  not  deliver  the  same  to  any  person  bene- 
ficially interested  in  any  part  thereof/'  and 
should  manage  the  estate  as  therein  mentioned. 
Very  full  powers  of  management  were  given  to 
the  trustees,  provided  that  when  all  the  trusts 
of  the  term  should  have  been  fully  paid  and 
satisfied  the  term  should  cease.  He,  moreover, 
gave  to  the  trustees  such  other  powers  over  the 
estate  as  were  given  to  a  tenant  for  life  in 
possession  by  the  Settled  Land  Act,  1882  : — 
Held,  that  H.  S.  was  a  person  having  the  power 
of  a  tenant  for  life  of  the  estate  within  the 
meaning  of  s.  58,  sub-s.  1,  cl.  ix.  of  the  Settled 
Land  Act,  1882,  and  that  bis  consent  was  neces- 


sary under  s.  56,  sub-s.  2,  to  the  effectual  exer- 
cise by  the  trustees  of  the  powers  of  sale  ind 
enfranchisement  contained  in  the  will.  Clitherte 
Estate,  In  re,  or  BuccleucWs  (Duke)  Mete,  1% 
re,  31  Ch.  D.  135  ;  55  L.  J.,  Ch.  107  ;  53  L.T. 
733;  34  W.  R.  169— C.  A. 

Tenant  for  Years— Estate  detenuiiitti 


with  Lease.] — A  testator  who  had  granted  a 
lease  of  a  house  for  a  term  of  thirty-one  yean 
from  the  25th  of  March,  1859,  at  a  rent  of  50U 
year,  by  his  will,  dated  the  20th  of  June,  186fi, 
devised  his  freehold  interest  in  such  house  to 
trustees  upon  trust  to  permit  his  wife  to  receive 
the  rent  for  her  own  benefit  "during  the  re- 
mainder of  the  term  granted  by  the  said  lease  if 
she  should  so  long  live,"  and  in  case  she  should 
die  "  before  the  expiration  of  the  term  created  by 
such  lease,"  then  he  gave  and  devised  the  house 
to  the  children  of  his  brother  in  fee,  and  he 
directed  that  if  his  wife  should  "happen  to  life 
after  the  expiration  of  the  term  created  by  such 
lease  "  then  the  trustees  should  sell  the  house, 
and  out  of  the  income  from  the  investment  of 
the  proceeds  pay  50/.  a  year  to  his  wife  daring 
her  life,  and  subject  thereto  he  gave  the  residue 
of  the  proceeds  for  his  brother's  children.   The 
testator  died  in  1866,  and  the  question  being 
raised  whether  his  widow  could,  under  the  Settled 
Land  Act,  1882,  accept  a  surrender  of  such  lease 
and  grant  a  new  lease  of  the  house  for  a  term  of 
twenty-one  years  from  the  25th  of  December. 
1883,  at  an  increased    rent:— Held,  that  the 
widow  was  not  a  person  under  s.  58  of  that  act 
entitled  to  the  powers  of  a  tenant  for  life,  and 
was  therefore  not  able  to  accept  a  surrender  and 
make  a  new  lease  of  the  house.    HazWs  Sdtled 
Estates,  In  re,  29  Ch.  D.  78  ;  54  L.  J.,  Ch.  628; 
62  L.  T.  947  ;  33  W.  R.  759— -C.  A. 


Ho  Income  arising.] — Subject  to  stem 


for  raising  certain  sums,  freehold  estates  were 
devised  to  the  use  of  trustees  during  the  life  of 
A.,  with  remainders  to  the  use  of  A's  chiMies 
and  issue.     The  trustees  of  the  life  estate  were 
directed  to  enter  into  possession  of  and  manage 
the  property,  pay  outgoings,  keep  down  the  inte- 
rest on  incumbrances,  and  during  A.'s  life  to  pay 
out  of  the  residue  an  annuity  of  400J.  to  the 
person  next  entitled  in  remainder,  and  pay  the 
ultimate  residue  to  A.     The  estates  were  so 
heavily  incumbered  that,  after  payment  of  out- 
goings and  interest,  there  was  not  enough  to  pay 
the  annuity  of  400Z.    A.  therefore  had  received 
nothing,  and  there  was  no  prospect  of  his  reced- 
ing anything  for  many  years  : — Held,  that  A- 
was  a  person  entitled  to  the  income  of  land 
under  a  trust  or  direction  for  payment  thereof 
to  him  during  his  life,  subject  to  expenses  d 
management,  within  the  meaning  of  the  Settled 
Land   Act,  1882,  s.   58,  sub-s,  (1),  cL  ix,  and 
therefore  possessed  the  power  of  selling  given  by 
the  act  to  tenants  for  life.    Jones,  In  re,  26  Ch. 
D.736;  53  L.  J.f  Ch.  807  ;  50  L.T.466;  52  W. 
R.  735— C.  A. 

Infant — Executory  Limitation  over— Best* 
under  Twenty-one  without  Issue.]  —  Certain 
estates  were  devised  to  the  use  of  the  testator's 
wife  and  G.  T.,  upon  trust  to  pay  the  net  rents 
and  income  of  the  estates  to  the  wife  for  the 
maintenance,  education  and  benefit  of  the  testa- 
tor's son  until  he  should  attain  twenty^ne,  and 
without  being  liable  to  account  to  the  trustees 


1625 


SETTLEMENT— Settled  Land  and  Estates. 


1626 


or  to  the  son  for  the  same ;  and  upon  the  son's  | 
attaining  twenty-one,  then  upon  trust  for  him 
absolutely ;  hut  if  he  should  die  under  twenty- 
ooe  without  leaving  issue,  then  upon  trust  to 
permit  the  wife  to  receive  such  rents  and  income 
for  her  life,  and  after  her  death  upon  the  trusts 
therein  mentioned : — Held,  under  the  Settled 
Land  Act,  1882,  s.  58,  sub-s.  2,  that  the  infant 
son  had  the  powers  of  a  tenant  for  life,  being 
tenant  in  fee-simple  with  an  executory  limitation 
over  in  case  of  dying  under  twenty -one  without 
issue.  The  trustees  of  the  will  appointed  trus- 
tees for  the  purposes  of  the  act.  if  organ,  In  re, 
24  Ch.  D.  114  ;  53  L.  J.,  Ch.  85  ;  48  L.  T.  964  ; 
31  W.  R.  948— North,  J. 

A  testator  by  his  will  devised  all  the  residue 
of  his  real  estate  in  trust  for  his  six  younger 
children,  and  directed  that  in  case  any  one  or 
more  of  his  six  younger  ohildren  should  happen 
to  die  in  his  lifetime  leaving  issue  living  at  his 
decease,  and  which  issue,  being  issue  male, 
should  live  to  attain  the  age  of  twenty-one 
yean,  or,  dying  under  that  age,  should  leave 
issue  surviving,  or,  being  issue  female,  should 
live  to  attain  that  age  or  be  previously  married  : 
then  in  such  case  the  share  to  which  such  child 
so  dying  would,  if  he  or  she  had  survived  the 
testator  and  had  attained  the  age  of  twenty-one 
years,  have  become  absolutely  entitled,  should 
be  held  upon  trust  for  such  issue  : — Held,  that 
the  two  infant  children  of  one  of  the  six  younger 
children  of  the  testator  who  had  died  in  the  tes- 
tator's lifetime  took  a  vested  interest  in  the 
share  of  their  deceased  parent,  liable  to  be 
divested  on  their  death  under  the  age  of  twenty- 
one  years,  and  that  they  had,  therefore,  the 
powers  of  a  tenant  for  life  under  the  Settled 
Land  Act,  1882,  s.  58,  sub-s.  2,  in  respect  of  that 
share.  James*  Settled  Estates,  In  re,  51  L.  T. 
5% ;  32  W.  R.  898— Pearson,  J. 

Pendency  of  Administration  Action.]  —  The 
pendency  of  an  action  by  tenant  for  life  in 
which  a  decree  has  been  made  for  execution  of 
the  trusts  of  a  settlement,  does  not  prevent  him 
from  exercising  his  power  of  sale  under  the 
Settled  Land  Act,  1882,  without  the  sanction  of 
the  court.  Cardigan  {Lady)  v.  Curzun~Howe, 
80  Ch.  D.  53L  ;  55  L.  J.,  Ch.  71 ;  63  L.  T.  704  ; 
33  W.  R.  836— Chitty,  J. 

Eflbet  of  previous  Eestrictive  Act.] — A  settle- 
ment of  land  was  made  in  1853  by  a  private  act 
of  parliament.  By  this  act  the  estates  were 
vested  in  the  trustees  thereby  appointed,  upon 
trust  by  sale  or  mortgage  thereof  to  raise  money 
for  the  purpose  of  discharging  certain  incum- 
brances and  liabilities.  The  act  provided  that 
the  trustees  might  from  time  to  time  absolutely 
sell  and  dispose  of  all  or  any  part  of  the  estates 
mentioned  in  a  schedule,  provided  that  the  trus- 
tees should  not  sell  any  of  the  lands  situate  in 
the  parishes  of  C.  and  H.,  unless  it  should  be 
absolutely  necessary  for  the  purposes  of  the  act 
to  do  so,  and  in  case  of  such  necessity  should  not 
sell  any  of  those  lands  until  all  the  rest  of 
the  estates  were  sold.  After  the  Settled 
Land  Act,  1882,  had  come  into  operation,  the 
tenant  for  life  entered  into  a  contract  to  sell 
some  of  the  lands  situate  in  the  parishes  of  C. 
and  H.  The  whole  of  the  rest  of  the  estates  had 
not  then  been  sold : — Held,  that  the  power  of 
sale  conferred  on  the  tenant  for  life  by  the 
Settled  Land  Act  was  an  absolute  power  over 


and  above  that  given  to  the  trustees  by  the 
private  act,  and  that  he  was  therefore  entitled 
to  sell  free  from  the  restriction  imposed  by  the 
private  act  on  the  trustees.  Ckaytor's  Settled 
Estate  Act,  In  re,  25  Ch.  D.  651  ;  53  L.  J.,  Ch. 
312  ;  50  L.  T.  88  ;  32  W.  R.  517— Pearson,  J. 

Staying  Proceedings  under  previous  Order 
of  Court— Settled  Estates  Act,  1877.1— In  1878 
an  order  was  made  under  the  Settled  Estates  Act, 
1877,  directing  the  trustees  of  certain  settled 
estates  to  sell  certain  parts  thereof  with  the  ap- 
probation of  the  judge.  This  order  was  never 
acted  upon,  although  it  remained  in  force.  The 
tenant  for  life,  being  desirous  of  selling  such  parts 
of  the  estates,  the  question  was  whether  the  order 
of  1878  deprived  him  of  the  statutory  power  of 
sale  afforded  by  s.  56  of  the  Settled  Land  Act, 
1882,  or  whether  the  powers  given  by  that  act 
were  cumulative.  On  an  application  to  the  court 
to  stay  proceedings  under  tne  order  of  1878  : — 
Held,  that  the  order  which  had  been  made  was 
not  a  positive  direction  for  a  sale,  but  merely  an 
authority  to  the  trustees  to  sell,  and  the  court  had 
power  to  delay  a  sale  and  stay  all  proceedings 
under  the  order,  if  circumstances  arose  making 
Buch  a  course  expedient,  but  that  the  court  would 
not  do  so  under  the  present  circumstances. 
Barrs-Haden's  Settled  Estate,  In  re,  49  L.  T.  661 ; 
32  W.  R.  194— Kay,  J. 

Sect.  56  of  the  Settled  Land  Act,  1882,  was 
not  intended  to  apply  to  a  case  of  difference 
between  the  powers  given  by  that  act,  and  special 
powers  granted  by  orders  under  the  Settled 
Estates  Act,  1877.  In  this  respect  the  powers 
given  by  the  Settled  Land  Act,  1882,  are  not 
cumulative.  Where  it  is  desired  to  vary  powers 
of  leasing  granted  to  trustees  by  the  court  under 
the  Settled  Estates  Act,  1877,  it  is  necessary,  in 
spite  of  the  powers  given  by  the  Settled  Land 
Act,  1882,  and  of  s.  56  of  that  act,  to  make  an 
application  to  the  court  in  that  behalf  under  the 
Settled  Estates  Act,  1877,  stating  the  advisability 
of  the  proposed  course,  and  asking  that  the  opera- 
tion of  the  order  may  be  stayed  or  the  leave  to  grant 
leases  thereunder  be  suspended.  Poole'*  Settled 
Estate,  In  re,  50  L.  T.  585 ;  32  W.  R.  956— 
Pearson,  J. 

b.    Infants. 
Power  of  Tenant  for  Life.]— See  supra. 

Appointment  of  Persons  to  Exercise  Powers 
of  Tenant  for  Life.] — Where,  in  the  absence  of 
any  trustees  of  a  settlement  within  the  meaning 
of  the  Settled  Land  Act,  capable  of  exercising 
powers  of  sale  over  the  settled  land,  an  appoint- 
ment has  been  made  under  s.  60  of  persons  to 
exercise  on  behalf  of  an  infant  tenant  fir  life  the 
powers  of  a  tenant  for  life,  and  to  sell  part  of 
the  settled  estate,  the  persons  so  appointed  can 
make  a  good  title  without  the  necessity  of  appoint- 
ing under  8. 38  trustees  of  the  settlement  to  whom 
notice  of  the  intended  sale  can  be  given  under 
8.  45.  The  order  made  under  s.  60  ought  in  such 
a  case  to  direct  that  the  purchase-money  be  paid 
into  court.  Dudley  (Countess)  and  London  and 
North  Western  Railway,  In  re,  35  Ch.  D.  338 ; 
56  L.  J.,  Ch,  478  ;  57  L.  T.  10  ;  35  W.  R.  492— 
Chitty,  J. 

Service  of  Summons— On  whom.] — Service  of 
a  summons  for  leave  to  sell  the  mansion-house 
and  heirlooms  on  the  children  of  the  tenant  for 


1627 


SETTLEMENT— Settkd  Land  and  Estates. 


1628 


life  was  dispensed  with,  their  interests  being 
sufficiently  represented  by  the  trustees,  who  had 
been  served.    Brown's  Will,  In  re,  27  Ch.  D.  179; 

53  L.  J.,  Ch.  921 ;  51  L.  T.  156  ;  32  W.  R.  894— 
V.-C.  B. 

Sale  by  Trustees  out  of  Court.] — The  court 
can  authorise  trustees  who  have  been  appointed 
for  the  purposes  of  the  Settled  Land  Act,  1882, 
to  sell  property  of  their  infant  cestui  que  trust 
out  of  court.  Price,  In  re,  Leighton  v.  Price, 
27  Ch.  D.  552  ;  51  L.  T.  497  ;  32  W.  R.  1009— 
V.-C.  B. 

Absolute  Trust  for  Sale — Order  of  Court  for 
Sale  -  Concurrence  of  Tenant  for  Life  not 
required.]— A  testator  devised  all  his  real  and 
personal  estate  to  trustees  upon  trust  after  the 
death  of  his  wife  absolutely  to  sell  the  whole  of 
his  property  in  such  manner  as  they  should  think 
fit,  and  to  pay  one-fourteenth  part  of  the  proceeds 
to  each  of  his  fourteen  children  at  twenty-one  or 
marriage,  with  further  provisions  under  which 
his  daughters'  shares  were  settled  on  them  for 
life  with  remainders  over.  A  suit  having  been 
instituted  for  the  administration  of  the  estate, 
and  the  wife  being  dead,  an  order  was  made  in 
the  suit  for  sale  of  part  of  the  estate  by  the 
trustees : — Held,  that  the  concurrence  of  the 
children  constituting  the  tenant  for  life  under 
the  Settled  Land  Act,  1882,  was  not  necessary 
upon  the  sale  by  the  trustees  ;  but  even  if  such 
concurrence  would  be  necessary  the  order  of  the 
court  was  sufficient  to  enable  the  trustees  to  sell 
without  joining  the  fourteen  children  or  any  of 
them  in  the  conveyance  to  the  purchaser.  Taylor 
v.  Poneia,  25  Ch.  D.  646 ;  53  L.  J.,  Ch.  409  ;  50 
L.  T.  20  ;  32  W.  R.  335— Pearson,  J. 

o.    Xarried  Women. 

Separate  Examination.] — In  the  case  of  a 
woman  married  before  the  commencement  of  the 
Married  Women's  Property  Act,  1882,  s.  1  of  the 
act  applies  only  as  to  property  acquired  by  her 
after  the  commencement  of  the  act.  Therefore, 
if  such  a  woman  is  a  petitioner,  or  a  respondent 
to  a  petition,  under  the  Settled  Estates  Act,  1877, 
relating  to  property  her  interest  in  which  was 
acquired  before  the  commencement  of  the  act  of 
1882,  she  must  be  examined  separately,  as  pro- 
vided by  s.  50  of  the  act  of  1877.  Harris*  Settled 
Estates,  In  re,  28  Ch.  D.  171  ;  54  L.  J.,  Ch.  208  ; 

51  L.  T.  855  ;  33  W.  R.  393—  Pearson,  J. 

On  an  application  under  the  Settled  Estates 
Act,  1877,  for  the  sanction  of  the  court  to  the 
purchase  of  certain  land  by  the  trustees  of  a 
settlement  out  of  funds  in  court  arising  from 
sales  to  the  settled  hereditaments,  the  separate 
examination  of  a  married  woman,  the  tenant  for 
life,  was  directed,  notwithstanding  s.  32  of  the 
Settled  Land  Act,  1882.    Arab  in'*  Trusts,  In  re, 

52  L.  T.  728— Kay,  J. 

A  married  woman  consenting  to  a  sale  under 
the  Settled  Estates  Act,  1877,  need  not  be  ex- 
amined as  to  her  consent  as  required  by  s.  50  of 
the  act  if  she  has  been  married  since  the  com- 
mencement of  the  Married  Women's  Property 
Act,  1882.     Ridiiell  v.  Erringtm,  26  Ch.  D.  220  ; 

54  L.  J.,  Ch.  293  ;  50  L.  T.  584  ;  32  W.  R.  680— 
Pearson,  J. 

d.  Trustees. 

Who  are,  within  i.  2,  rab-s.  8,  of  Settled 
Laud  Aet,  1888.] — A  trustee  with  power  of  sale 


subject  to  the  consent  of  another  is  trustee  for 
the  purposes  of  the  Settled  Land  Acts.  A 
trustee  of  a  settlement  with  power  of  sale  is 
trustee  for  the  purposes  of  the  Settled  Land 
Acts,  including  the  sale  of  heirlooms.  CtmstiMe 
v.  Constable,  32  Ch.  D.  233  ;  55  L.  J.,  CL  491 ; 
54  L.  T.  608  ;  34  W.  R.  470— Pearson,  J. 

Trustees  having  a  power  of  sale  which  can  only 
be  exercised  with  the  concurrence  of  a  person 
whose  consent  cannot  be  obtained,  are  not  trus- 
tees within  the  meaning  of  the  Settled  Land 
Act,  1882.  In  such  cases,  if  a  sale  be  desirable, 
it  is  expedient  to  appoint  such  persons  as  trus- 
tees for  the  purposes  of  the  act.  JohnsUmc't 
Settlement,  In  re,  17  L.  R.,  Ir.  172— M.  R. 

By  settlement  (a),  executed  upon  the  marriage 
of  A.  and  B.,  it  was  declared  that  the  trustees,  C. 
and  M.,  should  stand  possessed  of  money  upon 
trust  that  they  and  the  survivor  of  them,  his 
executors,  administrators,  and   assigns,  should 
continue  the  money  on  the  present  investments, 
or  with  the  consent  in  writing  of  A  and  B.  or 
the  survivor,  and  after  the  death  of  toe  survivor 
then  of  the  proper  authority  of  such  trustees  or 
trustee,  to  sell  and  transfer  the  securities  and 
lay  out  and  invest  the  proceeds,  with  power 
from  time  to  time,  with  such  consent  as  afore- 
said, to  vary  the  securities.     All  after-acquired 
property,  both  real  and  personal,  to  be  assored 
and  settled  upon  the  same  trusts,  fcc.,  as  the 
principal   sum.      Power  to  appoint  new  trus- 
tees, and  to  maintain,  enlarge,  or  diminish  the 
original  number ;  every  new  trustee  to  have  the 
power,  &c.,  of  the  trustee  in  whose  place  he  was 
appointed.    By  settlement  (b),  executed  npon 
the  marriage  of  C.  and  D.  (the  sister  of  B.),  it 
was  declared  that  the  trustees  M.  and  N.  ahoold 
stand  possessed  of  money  upon  trust  to  continue 
the  same  upon  its  then  present  security,  or  with 
the  consent  in  writing  of  C.  and  D.  or  the  sur- 
vivor, and  after  the  death  of  the  survivor,  of  the 
proper  authority  of  such  trustees  or  trustee,  to 
call  in  the  said  principal  money  and  again  lay 
out  the  same  in  their  or  his  names  or  name 
upon   the   securities   therein   mentioned,  with 
power  for  the  trustees  or  trustee  for  the  tune 
being,  with  such  consent  or  at  such  discretion 
as  aforesaid,  to  alter,  vary,  and  transpose  the 
stocks,  funds,  or  investments  to  be  from  time  to 
time  made  under  the  authority  of  the  aforesaid 
power,  in  any  other  stocks,  &c.,  of  the  nature  or 
description  contemplated  by  the  trust  for  invest- 
ment.    Covenant  to  settle  after-acquired  pro- 
perty similar  in  terms  to  that  in  settlement  (a). 
M.  had  died,  and  three  new  trustees  of  settle- 
ment (a)  had  been  appointed,  by  A.  and  B.    S. 
was  the  sole  present  trustee  of  settlement  (b). 
Real  estate  had  descended  during  their  coverture 
upon  B.  and  D.,  as  co-heiresses  in  undivided 
moieties.    A  contract  for  the  sale  of  this  real 
estate  having  been  entered  into  by  A.  and  B. 
and  C.  and  D.  as  vendors : — Held,  upon  sum- 
mons under  the  Vendor   and    Purchaser  Aet, 
]  874,  that  under  the  express  power  contained  in 
settlement  (a),  and  the  implied  power  in  settle- 
ment (b),  the  existing  trustees  of  both  settle- 
ments had  full  power,  within  the  meaning  of 
the  Settled  Land  Act,  1882,  s.  2  (8),  to  act  as 
trustees  under  the  act,  and  that  it  was  not 
necessary  to  apply  to  the  court  under  the  Settled 
Land  Act,  1882,  s.  38,  for  the  appointment  of 
new  trustees  for  the  purposes  of  the  act.  (Harnett- 
Orme  to  Eargreaves,  26  Ch.  D.  595 ;  53  L.  K 


1629 


SETTLEMENT— Settled  Land  and  Estates. 


1680 


Ch.  196  ;  49  L.  T.  655  ;  32  W.  R.  313— V.-C.  B. 
And  see  next  case. 

Appointment  under  s.  88.]  —  Residuary  per- 
sonal estate  was  subject  to  a  trust  for  invest- 
ment in  the  purchase  of  lands  in  the  counties  of 
Cork  and  Tyrone,  to  be  settled  to  the  same  uses 
as  the  testator's  real  estate,  which  was  devised 
in  strict  settlement.  No  opportunity  having 
occurred  to  enable  such  an  investment  to  be 
made,  and  the  fund  representing  the  residue 
being  in  court  to  the  credit  of  a  suit  to  carry 
oat  the  trusts  of  the  will,  the  trustees  applied  to 
the  court,  under  s.  38  of  the  Settled  Land  Act, 
for  leave  to  enter  into  an  agreement  for  a  trans- 
fer of  a  mortgage  for  a  large  amount  secured 
noon  fee  simple  in  the  counties  of  Cork  and 
Kerry : — Held,  that  the  case  did  not  come 
within  s.  2,  sub-s.  8,  but  was  within  s.  38,  and 
the  court,  in  the  exercise  of  its  discretion  under 
that  section,  declined  to  make  the  order,  having 
regard  to  the  purpose  for  which  the  trustees 
were  sought  to  be  appointed.  Burke  v.  Gore,  13 
L.  R.,  It.  367— V.-C. 


When  Persons  appointed  under  s.  60.]— 

See  Dudley  (Countess)  and  London  and  North' 
Western  Railway,  In  re,  ante,  coL  1626. 


Discretion  of  Court.]  —  Semble,  in  ap- 
pointing trustees  under  s.  38,  the  court  should 
require  to  be  satisfied  not  only  of  the  fitness  of 
the  proposed  trustees,  but  also  that  the  purposes 
for  which  their  appointment  is  sought  is  such  as 
to  render  their  appointment  safe  and  beneficial 
to  all  persons  interested  in  the  property.  Burke 
t.  Gore,  supra. 


Who  appointed.]— The  court  will  not  in 

general  appoint  as  trustees  of  a  settlement  for 
the  purposes  of  the  act  two  persons  who  are 
near  relatives  to  each  other.  There  ought  to  be 
two  independent  trustees.  Enowles'  Settled 
Jftfrff*^  In  re,  27  Ch.  D.  707  ;  54  L.  J.,  Ch.  264  ; 
51  L.  T.  666 ;  33  W.  R.  364—  Pearson,  J. 

Where  estates  in  England  and  Ireland  were 
devised  upon  similar  limitations,  and  all  the 
rfftw"1  beneficially  interested  resided  in  Eng- 
land, the  court  appointed,  as  trustees  of  the 
Irish  estates  for  the  purposes  of  the  Settled  Land 
Act,  1882,  two  persons,  who  had  been  appointed 
by  the  Chancery  Division  in  England  trustees  of 
the  English  estates,  for  the  purpose  of  the  act, 
notwithstanding  their  residence  in  England. 
Maberty*  Settled  Estate.  In  re,  19  L.  R.,  Ir. 
341— M.  R. 

Whether  by  Court  or  remaining  Trustees 
t.] — One  of  two  trustees  appointed 
s.  38  of  the  Settled  Land  Act,  1882, 
to  retire.  The  court  appointed  a  new 
for  the  purposes  of  the  Settled  Land 
Acts  in  the  place  of  the  retiring  trustee  on  an 
application  made  under  that  section : — Quaere, 
whether  s.  31  of  the  Conveyancing  Act,  1881, 
applies  to  trustees  appointed  for  the  purposes  of 
toe  Settled  Land  Acts.  Wilcook,  In  re,  34  Ch. 
D.  508  ;  66  L.  J.,  Ch.  757  ;  56  L.  T.  629  ;  35  W. 
B.  460 — North,  J. 

One  of  three  trustees,  appointed  by  the  court 
38  of  the  Settled  Land  Act,  1882,  having 
to  reside  abroad,  the  court  appointed  a  new 

for  the  purposes  of   that  act,  in  his 

place,  under  a  38.     WUoock,  Ik  re  (34  Ch.  D. 


508),  followed.     Kane's  Trusts,  In  re,  21  L.  R., 
Ir.  112— M.  R. 

sTotioe  to  Trustees — Contract  by  Tenant  for 
Life  to  Sell.] — On  a  sale  by  a  tenant  for  life 
under  the  Settled  Land  Act,  1882,  a  notice  to 
the  trustees  given  less  than  a  month  before  the 
contract,  but  more  than  a  month  before  the  day 
fixed  for  completion : — Held,  a  sufficient  com- 
pliance with  s.  45.  Semble,  a  purchaser  cannot 
avail  himself  of  a  defect  in  such  notice  as  a 
defence  to  an  action  for  specific  performance. 
Marlborough  (Duke")  v.  Sartoris,  32  Ch.  D.  616  ; 
56  L.  J.,  Ch.  70 ;  55  L.  T.  506  ;  35  W.  R.  55— 
Chitty,  J. 

Time  for— Statutory  Title.]—  See  Hatten 

v.  Russell,  and  Bentley,  In  re,  ante,  cols.  1620, 
1621. 


Form  of  Notice  —  Lunatic  Tenant  for 

Life.] — A  general  notice  by  a  tenant  for  life  of 
an  intention  to  sell  or  lease  all  or  any  part  of 
the  settled  estates,  at  any  time  or  times  when  a 
proper  opportunity  shall  arise,  is  not  a  sufficient 
notice  within  s.  45  of  the  Settled  Land  Act, 
1882.  Bay's  Settled  Estates,  In  re,  25  Ch.  D. 
464  ;  53  L.  J.,  Ch.  205  ;  50  L.  T.  80 ;  32  W.  R. 
458— Pearson,  J. 

Costs.]— A  lunatic  tenant  for  life,  by  his 


committee,  gave  the  trustees  a  general  notice  of 
bis  intention  to  sell  or  lease  all  or  any  part  of 
the  settled  estates  as  a  proper  opportunity 
should  arise.  Upon  a  summons  by  the  trustees, 
asking  for  a  declaration  that  this  was  not  a 
sufficient  notice  : — Held,  that  as  the  notice  was 
insufficient  within  s.  45  of  the  act,  and  the  com. 
mittee  had  served  it  without  obtaining  the  sanc- 
tion of  the  court  in  lunacy,  he  must  pay  the 
costs  of  the  summons.    lb. 


3.   WHAT  PROPERTY  MAY  BE   SOLD 

OR   LET. 

Mansion-house  and  Heirlooms.] — A  testator 
bequeathed  to  his  trustees  certain  articles  as 
heirlooms  to  be  annexed  to  his  mansion-house 
and  held  in  trust  for  the  person  for  the  time 
being  entitled  to  the  mansion-house  under  the 
equitable  limitations  thereinafter  contained ;  and 
he  devised  his  mansion-house  and  estate,  com- 
prising about  360  acres,  to  the  trustees  upon 
trust  for  his  son  for  life,  with  equitable  remain- 
ders over  in  strict  settlement  for  the  benefit 
of  the  son's  issue ;  and  the  testator  directed  that 
his  mansion-house  and  certain  lands  thereto 
belonging,  comprising  about  thirty  acres,  and 
described  on  a  plan  indorsed  on  the  will,  should 
be  kept  up  as  a  place  of  residence  for  the  person 
for  the  time  being  entitled  to  the  possession 
thereof  under  his  will,  and  that  the  heirlooms 
should  at  all  times  be  kept  in  the  mansion-house. 
Powers  were  given  to  the  trustees  to  let,  sell,  or 
exchange  any  part  of  the  settled  estate  except 
the  mansion-house  and  lands  described  on  the 
plan.  The  testator's  son,  the  tenant  for  life, 
being  desirous  of  selling  the  whole  estate  under 
the  powers  of  the  Settled  Land  Act,  1882,  applied 
to  tne  court,  under  b.  15,  for  leave  to  sell  the 
excepted  mansion-house  and  lands,  on  the  ground 
that,  owing  to  ill  health  and  permanent  residence 
elsewhere,  he  was  unable  to  reside  in  the  man- 


1681 


SETTLEMENT— Settled  Land  and  Estates. 


168! 


gion-house,  and  also  that,  inasmuch  as  the  estate 
was  in  proximity  to  a  large  town,  the  bulk  of  the 
estate  could  not  be  sold  advantageously  without 
the  mansion-house  and  adjoining  lands.  The 
summons  did  not  ask  for  the  sale  of  or  contain 
any  reference  to  the  heirlooms : — Held,  that, 
on  the  evidence,  the  case  was  a  proper  one  for  a 
sale  of  the  mansion-house  and  adjoining  lands, 
but  that  leave  for  sale  would  not  be  granted 
without  some  direction  as  to  the  disposal  of  the 
heirlooms.  Br  own*  s  Will,  In  re,  27  Oh.  D.  179  ; 
63  L.  J.,  Ch.  921  ;  51  L.  T.  156  ;  32  W.  R.  894— 
V.-C.  B. 

The  summons  was  then  amended,  with  the 
consent  of  the  trustees,  by  asking  for  leave  to 
sell  the  heirlooms  also,  under  s.  37  of  the  Settled 
Land  Act,  1882,  by  reference  to  an  inventory 
verified  by  affidavit,  whereupon  an  order  was 
made  for  the  sale  of  the  heirlooms,  with  liberty 
for  the  tenant  for  life  to  bid  at  such  sale.     lb. 

Mansion-house  and  Park — Assignees  of  Tenant 
for  Life — Consent.] — The  court,  in  the  exercise 
of  the  discretion  given  by  s.  15  of  the  Settled 
Land  Act,  in  respect  to  ordering  a  sale  of  the 
mansion-house  and  park  on  the  settled  land, 
where  the  trustees  of  the  settlement  do  not  con- 
sent, will  not,  where  the  tenant  for  life  has  mort- 
gaged his  life  interest  to  its  full  val  ue,  make  the 
order  on  his  application  without  full  information 
as  to  the  proposed  sale,  and  the  consent  of  the 
mortgagees.  Sebright^  Settled  Estates,  In  re, 
33  Ch.  D.  429  ;  56  L.  J.,Ch.  169  ;  55  L.  T.  670  ; 
36  W.  R.  49—0.  A. 

Heirlooms  —  Proposed  Sale  —  Discretion  of 
Court.] — A  tenant  for  life  of  settled  estates 
applied,  under  the  Settled  Land  Act,  1882,  for 
the  sanction  of  the  Court  to  a  proposed  sale  of 
chattels  consisting  for  the  most  part  of  pictures 
at  the  family  mansion-house  and  settled  as  heir- 
looms. It  was  proposed  that  the  sum  arising 
from  the  sale  should  be  applied  in  reduction  of 
charges  upon  the  settled  estates.  The  estimated 
sum  to  arise  from  the  sale  was  7,3002.,  and  the 
annual  income  of  the  estate  was  about  7,500/. 
The  estates  were  settled  as  to  one-half  by  a 
settlement  made  in  1876,  and  as  to  the  other 

?art  by  the  will  of  a  testator  who  died  in  1882. 
he  guardians  ad  litem  of  the  tenant  in  tail  in 
remainder  and  the  trustees  were  opposed  to  the 
proposed  sale.  It  appeared  that  since  the  tes- 
tator's death  there  had  been  no  substantial 
depreciation  in  the  property.  The  pictures  were 
a  characteristic  feature  of  the  mansion-house  : — 
Held,  that  under  the  circumstances  of  the  case 
the  court  would  in  the  exercise  of  its  discretion 
refuse  to  sanction  the  proposed  sale.  Beaumont's 
Settled  Estates,  In  re,  68  L.  T.  916— Chitty,  J. 
See  also  Houghton's  Estate,  In  re,  post,  col. 
1636. 


Incorporeal    Hereditament  —  Tithes.] 
Esdaile,  In  re,  post,  col.  1635. 


See 


Title  of  Dignity  or  Honour.] — A  dignity 

or  title  of  honour,  as  an  incorporeal  hereditament, 
is  "  land "  within  the  meaning  of  the  37th  sec- 
tion of  the  Settled  Land  Act,  1882.  The  Settled 
Land  Act,  1882,  does  not  enable  a  limited  owner 
to  sell  any  property  which,  when  vested  in  a 
tenant  in  fee  simple,  is  by  law  inalienable. 
Rivett-Carnac's  Will,  In  re,  30  Oh.  D.  136 ;  64 


L.  J.,  Ch.  1074  ;  53  L.  T.  81 ;  33  W.  R.  837- 
Chitty,  J. 

Lease  of  Mansion-house.]  —  See  TkmfsmCt 
Will,  In  re,  infra. 


4.    LEASBS. 

Sanction  of  Court — Covenant  to  Renew  Least 
at  Future  Time.] — The  court  has  no  power  under 
S8.  4  and  5  of  the  Settled  Estates  Act,  1877, 
to  sanction  a  sub-lease  of  settled  land  (held 
under  a  renewable  lease)  for  the  unexpired 
residue  of  the  term,  with  a  covenant  for  the  ex- 
tension of  the  term  by  a  further  sub-lease  after 
the  renewal  of  the  head  lease.  Snch  a  lea* 
would,  as  regards  the  further  lease,  not  be  a 
lease  taking  effect  in  possession.  Farndl't 
Settled  Estates,  In  re,  33  Oh.  D.  599 ;  35  W.  B. 
250— North,  J. 

By  Tenant  for  Life — Impeachment  for  Wait* 
— Permissive  Waste.] — A  tenant  for  yean  i* 
liable  for  permissive  waste,  and  therefore  a  lease 
by  a  tenant  for  life  under  40  &  41  Vict  c.  18, 
s.  46,  exempting  the  lessee  from  liabilities  tor 
"  fair  wear  and  tear  and  damage  by  tempest "  if 
void  as  "  made  without  impeachment  of  waste." 
In  granting  such  a  lease  the  tenant  for  life  hat 
a  discretion  as  to  what  are  proper  covenants, 
and  the  lease  will  be  void  only  when  there  is  an 
outrageous  omission  of  covenants.  Xugent  ▼. 
Cuthbert  (Sugden  on  Real  Property,  475)  dis- 
tinguished. Davies  v.  Davies,  38  Oh.  D.  499 ;  57 
L.  J.,  Ch.  1093 ;  58  L.  T.  614  ;  36  W.  B.  399- 
Kekewich,  J. 


Building  Leases  for  long  Terms  —  Infut 
Tenant  in  tail.] — Where  an  infant  tenant  in 
tail  in  possession  was  eighteen  years  of  age,  the 
court  refused,  on  the  application  of  the  trustee! 
of  the  settlement,  who  had  the  powers  of  a 
tenant  for  life  under  s.  60  of  the  Settled  Land 
Act,  to  grant  general  authority  to  make  building 
leases  not  exceeding  200  years,  but  gave  such 
authority  subject  to  the  approval  of  the  court  to 
the  making  of  each  lease.  Cecil  v.  I+ngie*, 
64  L.  T.  418— Pearson,  J. 


Mineral  Lease — Setting  aside  part  of 
Capital  Moneys— Tenant  for  Life  impeaeaaate 

for  Waste.] — A  person  who  is  entitled  for  his 
life  to  the  income  of  the  money  to  arise  from  the 
sale  of  settled  land  and  to  the  rents  and  profits 
of  the  settled  land  until  sale,  although  to  be 
deemed  a  tenant  for  life  under  s.  63  of  the 
Settled  Land  Act,  1882,  is  not,  properly  speaking, 
''impeachable  for  waste  in  respect  of  minerals* 
within  the  meaning  of  s.  11.  Nevertheless 
where  a  lease  of  unopened  minerals  is  made  by 
Buch  a  person  under  the  provisions  of  the  act 
three-fourths  of  the  rents  and  royalties  should 
be  set  aside  as  capital  moneys  arising  under  the 
act,  and  the  residue  only  should  go  as  rents 
and  profits.  Ridge,  In  re,  HeUard  v.  JrWv, 
31  Ch.  D.  604  ;  56  L.  J.,  Ch.  265  ;  64  L.  T.  549 ; 
34  W.  R.  169— C.  A. 

"  Principal  Mansion-house  "  —  Btsiisaes 
Clause.] — A  principal  mansion-house  and  de- 
mesne in  the  county  of  Dublin  were  settled 
upon  the  same  trusts  as  lands  in  the  counties  of 
Mayo  and  Sligo,  with  a  condition  of  forfeiture 


1688 


SETTLEMENT— Settled  Land  and  Ettatet. 


1684 


on  non-residence  in,  selling  of,  or  letting  of  the 
said  mansion-house  and  demesne,  which  attached 
both  to  them  and  to  the  other  lands  settled  : — 
Held,  that  they  were  a  "  principal  mansion- 
house"  and  demesne  within  the  meaning  of 
s.  15  of  the  Settled  Land  Act,  1882 ;  that  the 
condition  of  forfeiture  was  void  for  the  purposes 
of  that  act ;  and  that  the  court,  on  the  facts, 
would  authorise  a  temporary  letting  of  them  to 
be  made.  Thompson'*  Will,  In  re,  21  L.  B.,  Ir. 
10*— M.  R. 


5.    EFFECT    OF    SETTLED     LAND    ACT 
ON  FORFEITURE  CLAUSES. 

■oa-rwUtaee— No  Sale  of  Land.]— A  tenant 
for  life  under  a  will  broke  the  terms  of  a  condi- 
tion of  residence  on  pain  of  forfeiture  contained 
in  the  will : — Held,  that,  no  sale  hating  been 
made,  the  forfeiture  took  effect,  notwithstanding 
&  61  of  the  Settled  Land  Act,  1882.  Hayne*, 
In  re,  Kemp  v.  Hay  net,  37  Ch.  D.  306  ;  57  L.  J., 
Ch.  619  ;  68  L.  T.  14  ;  36  W.  R.  321— North,  J. 

Validity  at}— Sec  Thompson'*  WUl,  In 

re,  supra,  and  Paget'*  Settled  Estate*,  In  re, 
ante,  coL  1622. 


6.    CAPITAL  MONEYS. 
a.  What  are. 
Mineral  Lease.]— See  Ridge,  In  re,  supra. 

lale  of  Timber  at  Valuation— Power  to  out 
lost— Claim  of  Tenant  for  lift  to  Proceeds.] 
— A  tenant  for  life  of  an  estate  in  strict  settle- 
ment had  power  to  cut  certain  timber  and  other 
trees,  to  sell  the  same  and  to  apply  the  proceeds 
to  his  own  use.  In  1885  the  tenant  for  life  sold 
the  estate  under  conditions  of  sale  which  stated 
that  the  purchaser  should  in  addition  to  the 
purchase-money  pay  for  the  timber  according  to 
a.  valuation.  The  tenant  for  life  claimed,  under 
the  provisions  for  the  settlement  and  under  the 
Settled  Land  Act,  1882,  s.  35,  to  be  paid  out  of 
the  purchase-money  the  value  of  the  timber  :— 
Held,  that  the  amount  of  the  valuation  of  the 
timber  was  an  addition  to  the  price  which  the 
purchaser  agreed  to  pay  for  the  estate,  and  must 
be  treated  as  capital  money  payable  to  the 
trustees  under  s.  21  of  the  Settled  Land  Act, 
1882,  and  that  the  claim  by  the  tenant  for  life 
to  be  paid  the  sums  asked  for  failed.  LUweilin, 
I*  re,  LieweUin  v.  William*,  37  Ch.  D.  317  ;  57 
L.  J„  Ch.  316 ;  58  L.  T.  152 ;  36  W.  R.  347— 
Stirling,  J. 

b.  Application  oil 
i  Cost*  and  Incumbrance*. 

Fsyment  of  Coots.  ]— In  1881  a  tenant  for  life 
contemplated  a  sale  of  the  estate,  but  he  was 
restrained  from  selling  (either  under  the  power 
in  the  will  or  under  that  contained  in  the  Settled 
Land  Act)  by  an  injunction  granted  in  an  action 
brought  by  persons  entitled  in  remainder.  In 
1884  the  action  was  dismissed  with  costs.  The 
teaant  for  life  claimed  to  be  paid  the  difference 
ci,  his  costs,  as  between  party  and  party  and 


solicitor  and  client : — Held,  that  he  was  entitled, 
in  defending  the  action  which  was  dismissed 
with  costs,  to  be  paid  his  extra  costs  of  so  much 
of  the  action  as  related  to  the  exercise  of  the 
powers  contained  in  the  Settled  Land  Act  as 
incidental  to  the  exercise  of  his  power  of  sale 
under  the  provisions  of  the  Settled  Land  Act, 
1882.    lb. 

Costs  irrecoverable  from  an  insolvent  com- 
pany were  ordered  to  be  paid  out  of  a  fund 
in  court  to  the  tenant  for  life.  Navan  and 
Kingecourt  Railway,  In  re,  Dya*,  Em  parte,  21 
L.  R.,  Ir.  369— M.  R. 

"  Proceedings  for  Protection  of  Settled 

Land  "—Parliamentary  Proceedings.] — Proceed- 
ings successfully  prosecuted  before  the  House  of 
Lords  Committee  for  Privileges  to  establish  a 
claim  to  an  earldom,  the  consequences  of  which 
were  that  the  petitioner  afterwards  recovered 
estates  which  were  subject  to  similar  limitations, 
held  to  be  "  proceedings  taken  for  the  protection 
of  settled  land,"  the  costs  of  which  the  court 
directed  to  be  paid  out  of  property  subject  to 
the  settlement,  under  s.  36  of  the  Settled  Land 
Act,  1882.  Form  of  order.  Carnal*  Will, 
In  re  (30  Ch.  D.  136),  considered.  Ayletford?* 
{Earl)  Settled  Estate*,  In  re,  32  Ch.  D.  162  ; 
56  L.  J.,  Ch.  523  ;  54  L.  T.  414  ;  34  W.  R.  410 
— V.-C.  B. 

Incumbrance  affecting  Inheritance.]  —  The 
proceeds  of  settled  land  sold  by  the  tenant  for 
life  under  the  Settled  Land  Act,  1882,  can  be 
applied  in  paying  off  a  debt  secured  by  a  mort- 
gage of  a  long  term.  Ireuxn,  In  re,  tretoen  v. 
James,  32  Ch.  D.  383  ;  57  L.  J.,  Ch.  1052 ;  59 
L.  T.  131 ;  36  W.  R.  840— North,  J. 

—  Sale  of  Heirlooms.] — The  money  arising 
by  the  sale,  on  the  application  of  the  tenant  for 
life  with  the  sanction  of  the  court,  of  chattels 
treated  in  a  settlement  as  heirlooms,  and  so  far 
as  the  rules  of  law  and  equity  would  permit 
annexed  to  the  settled  freehold  land,  may  be 
applied  in  the  discharge  of  incumbrances  affect- 
ing the  inheritance  of  the  settled  land,  without 
keeping  such  incumbrances  on  foot  for  the 
benefit  of  the  infant  remainderman  in  whom  the 
heirlooms  would,  if  unsold,  have  vested  absolutely 
on  his  attaining  twenty-one.  Marlborough'* 
{Duke)  Settlement,  In  re,  Marlborough  {Duke) 
v.  Majoribank*,  32  Ch.  D.  1  ;  55  L.  J.,  Ch.  339  ; 
54  L.  T.  914  ;  34  W.  R.  377— C.  A. 

Mortgage    affecting    Part   of    Settled 

Estate.]— Under  sub-s.  2  of  s.  21  of  the  Settled 
Land  Act,  the  purchase-money  could  be  applied 
in  discharging  a  mortgage  which  affected  part  of 
the  land  sold  and  another  mortgage  which 
affected  another  part  of  the  settled  estate,  and 
that  it  was  not  necessary  that  the  other  mort- 
gage should  be  one  affecting  the  whole  of  the 
settled  estates.  Chaytor'*  Settled  Estate  Act, 
In  re,  25  Ch.  D.  651  ;  53  L.  J.,  Ch.  312  ;  50  L. 
T.  88  ;  32  W.  R.  617— Pearson,  J. 

Tithes   subject   to   Annuity— Purchase 

with  a  view  to  discharge  Incumbrance.]— By  a 
charter  in  the  reign  of  James  1.  a  grant  was 
made  of  certain  tithes  issuing  out  of  the  rectory 
of  St.  Botolph  Without,  Aldgate,  in  the  City 
of  London,  to  persons  named  in  the  grant,  their 

3  a 


1681 


SETTLEMENT— Settled  Land  and  Estates. 


168! 


non-house,  and  also  that,  inasmuch  as  the  estate 
was  in  proximity  to  a  large  town,  the  bulk  of  the 
estate  could  not  be  sold  advantageously  without 
the  mansion-house  and  adjoining  lands.  The 
summons  did  not  ask  for  the  sale  of  or  contain 
any  reference  to  the  heirlooms : — Held,  that, 
on  the  evidence,  the  case  was  a  proper  one  for  a 
sale  of  the  mansion-house  and  adjoining  lands, 
but  that  leave  for  sale  would  not  be  granted 
without  some  direction  as  to  the  disposal  of  the 
heirlooms.  Brown'*  Will,  In  re,  27  Ch.  D.  179  ; 
63  L.  J.,  Ch.  921  ;  51  L.  T.  166  ;  32  W.  R.  894— 
V.-C.  B. 

The  summons  was  then  amended,  with  the 
consent  of  the  trustees,  by  asking  for  leave  to 
sell  the  heirlooms  also,  under  s.  37  of  the  Settled 
Land  Act,  1882,  by  reference  to  an  inventory 
verified  by  affidavit,  whereupon  an  order  was 
made  for  the  sale  of  the  heirlooms,  with  liberty 
for  the  tenant  for  life  to  bid  at  such  sale.     lb. 

Mansion-house  and  Park— Assignees  of  Tenant 
for  Life — Consent.] — The  court,  in  the  exercise 
of  the  discretion  given  by  s.  15  of  the  Settled 
Land  Act,  in  respect  to  ordering  a  sale  of  the 
mansion-house  and  park  on  the  settled  land, 
where  the  trustees  of  the  settlement  do  not  con- 
sent, will  not,  where  the  tenant  for  life  has  mort- 
gaged his  life  interest  to  its  full  val  ue,  make  the 
order  on  his  application  without  full  information 
as  to  the  proposed  sale,  and  the  consent  of  the 
mortgagees.  Sebright'*  Settled  Estates,  In  re, 
33  Ch.  D.  429  ;  56  L.  J.,  Ch.  169  ;  55  L.  T.  570  ; 
36  W.  R.  49— C.  A. 

Heirlooms  —  Proposed  Sale  —  Discretion  of 
Court.]  —  A  tenant  for  life  of  settled  estates 
applied,  under  the  Settled  Land  Act,  1882,  for 
the  sanction  of  the  Court  to  a  proposed  sale  of 
chattels  consisting  for  the  most  part  of  pictures 
at  the  family  mansion-house  and  settled  as  heir- 
looms. It  was  proposed  that  the  sum  arising 
from  the  sale  should  be  applied  in  reduction  of 
charges  upon  the  settled  estates.  The  estimated 
sum  to  arise  from  the  sale  was  7,300/.,  and  the 
annual  income  of  the  estate  was  about  7,5001. 
The  estates  were  settled  as  to  one-half  by  a 
settlement  made  in  1876,  and  as  to  the  other 
part  by  the  will  of  a  testator  who  died  in  1882. 
The  guardians  ad  litem  of  the  tenant  in  tail  in 
remainder  and  the  trustees  were  opposed  to  the 
proposed  sale.  It  appeared  that  since  the  tes- 
tator's death  there  had  been  no  substantial 
depreciation  in  the  property.  The  pictures  were 
a  characteristic  feature  of  the  mansion-house  : — 
Held,  that  under  the  circumstances  of  the  case 
the  court  would  in  the  exercise  of  its  discretion 
refuse  to  sanction  the  proposed  sale.  Beaumont's 
Settled  Estates,  In  re,  68  L.  T.  916— Chitty,  J. 
See  also  Houghton's  Estate,  In  re,  post,  col. 
1636. 

Incorporeal  Hereditament  —  Tithes.]  —  See 
Esdaile,  In  re,  post,  col.  1635. 


Title  of  Dignity  or  Honour.] — A  dignity 


or  title  of  honour,  as  an  incorporeal  hereditament, 
is  u  land  "  within  the  meaning  of  the  37th  sec- 
tion of  the  Settled  Land  Act,  1882.  The  Settled 
Land  Act,  1882,  does  not  enable  a  limited  owner 
to  sell  any  property  which,  when  vested  in  a 
tenant  in  fee  simple,  is  by  law  inalienable. 
Rivett-Carnae's  Will,  In  re,  30  Ch.  D.  136 ;  54 


L.  J.,  Ch.  1074 ;  63  L.  T.  81 ;  33  W.  R.  837- 
Chitty,  J. 

Lease  of  Mansion-house.]  —  See  Thompson'! 
Will,  In  re,  infra. 


4.    LEASES. 

Sanction  of  Court — Covenant  to  Bene*  Lesn 
at  Future  Time.] — The  court  has  no  power  under 
ss.  4  and  5  of  the  Settled  Estates  Act,  1877, 
to  sanction  a  sub-lease  of  settled  land  (held 
under  a  renewable  lease)  for  the  unexpired 
residue  of  the  term,  with  a  covenant  for  the  ex- 
tension of  the  term  by  a  further  sab-lease  after 
the  renewal  of  the  head  lease.  Such  a  lease 
would,  as  regards  the  further  lease,  not  be  a 
lease  taking  effect  in  possession.  FarwdXt 
Settled  Estates,  In  re,  33  Ch.  D.  699  ;  35  W.  R. 
260— North,  J. 

By  Tenant  for  Life — Impeachment  for  wsiti 
— Permissive  Waste.] — A  tenant  for  yean  is 
liable  for  permissive  waste,  and  therefore  a  leass 
by  a  tenant  for  life  under  40  &  41  Vict  c  18, 
s.  46,  exempting  the  lessee  from  liabilities  for 
"  fair  wear  and  tear  and  damage  by  tempest"  is 
void  as  "  made  without  impeachment  of  waste." 
In  granting  such  a  lease  the  tenant  for  life  has 
a  discretion  as  to  what  are  proper  covenants, 
and  the  lease  will  be  void  only  when  there  is  as 
outrageous  omission  of  covenants.  Nugent  ▼. 
Outhbert  (Sugden  on  Real  Property,  475)  dis- 
tinguished. Datries  v.  Davie*,  38  Ch.  D.  499 ;  57 
L.  J.,  Ch.  1093 ;  68  L.  T.  514  ;  36  W.  B.  3»- 
Kekewich,  J. 

Building  Leases  tor  long  Terms  —  Ddait 
Tenant  in  tail.] — Where  an  infant  tenant  is 
tail  in  possession  was  eighteen  years  of  age,  the 
court  refused,  on  the  application  of  the  trustee* 
of  the  settlement,  who  had  the  powers  of  a 
tenant  for  life  under  s.  60  of  the  Settled  Land 
Act,  to  grant  general  authority  to  make  building 
leases  not  exceeding  200  years,  but  gave  such 
authority  subject  to  the  approval  of  the  court  to 
the  making  of  each  lease.  Cecil  v.  Langism, 
54  L.  T.  418— Pearson,  J. 

Mineral  Lease — Setting  aside  part  of  Beat— 
Capital  Moneys— Tenant  for  Life  impeaeaaUa 

for  Waste.] — A  person  who  is  entitled  for  his 
life  to  the  income  of  the  money  to  arise  from  the 
sale  of  settled  land  and  to  the  rents  and  profits 
of  the  settled  land  until  sale,  although  to  be 
deemed  a  tenant  for  life  under  s,  63  of  the 
Settled  Land  Act,  1882,  is  not,  properly  Bpeaking, 
"  impeachable  for  waste  in  respect  of  minerals  * 
within  the  meaning  of  s.  11.  Nevertheless, 
where  a  lease  of  unopened  minerals  is  made  by 
such  a  person  under  the  provisions  of  the  act 
three-fourths  of  the  rents  and  royalties  should 
be  set  aside  as  capital  moneys  arising  under  the 
act,  and  the  residue  only  should  go  as  rents 
and  profits.  Ridge,  In  re,  Uellard  v.  Mood], 
31  Ch.  D.  604  ;  55  L.  J.,  Ch.  266  ;  64  L.  T.  649 ; 
34  W.  B.  169— C.  A. 

"  Principal  Mansion-house  "  —  Besidtaee 
Clause.] — A  principal  mansion-house  and  de- 
mesne in  the  county  of  Dublin  were  settled 
upon  the  same  trusts  as  lands  in  the  counties  of 
Mayo  and  Sligo,  with  a  condition  of  forfeiture 


1688 


SETTLEMENT— Settled  Land  and  Estates. 


1684 


on  non-residence  in,  selling  of,  or  letting  of  the 
said  mansion-house  and  demesne,  which  attached 
both  to  them  and  to  the  other  lands  settled  : — 
Held,  that  they  were  a  "  principal  mansion- 
house"  and  demesne  within  the  meaning  of 
a  15  of  the  Settled  Land  Act,  1882 ;  that  the 
condition  of  forfeiture  was  void  for  the  purposes 
of  that  act ;  and  that  the  court,  on  the  facts, 
would  authorise  a  temporary  letting  of  them  to 
be  made,  Thompson's  WiU,  In  re,  21  L.  R.,  Ir. 
10*— M.  R. 


5.    EFFECT    OF    SETTLED     LAND    ACT 
ON  FORFEITURE  CLAUSES. 

Van-xetjdenee— Ho  Bale  of  Laud.]— A  tenant 
for  life  under  a  will  broke  the  terms  of  a  condi- 
tion of  residence  on  pain  of  forfeiture  contained 
ia  the  will : — Held,  that,  no  sale  haying  been 
made,  the  forfeiture  took  effect,  notwithstanding 
a.  51  of  the  Settled  Land  Act,  1882.  Haynes, 
In  re,  Kemp  v.  Haynes,  37  Ch.  D.  306  ;  57  L.  J., 
Ch.  519  ;  68  L.  T.  14  ;  36  W.  R.  321— North,  J. 

Validity  oty—See  Thompson's  WUl,  In 

m,  supra,  and  Paget'*  Settled  Estates,  In  re, 
ante,  coL  1622. 


6.    CAPITAL  MONEYS. 

a.  What  are. 
Lease.] — See  Ridge,  In  re,  supra. 


isle  of  Timber  at  Valuation — Power  to  out 
Timber— -Claim  of  Tenant  for  Lift  to  Proceeds.] 

— A  tenant  for  life  of  an  estate  in  strict  settle- 
meat  had  power  to  cut  certain  timber  and  other 
trees,  to  sell  the  same  and  to  apply  the  proceeds 
to  his  own  nee.  In  1885  the  tenant  for  life  sold 
the  estate  under  conditions  of  sale  which  stated 
that  the  purchaser  should  in  addition  to  the 
pnrchnsn  money  pay  for  the  timber  according  to 
a  valuation.  The  tenant  for  life  claimed,  under 
the  provisions  for  the  settlement  and  under  the 
Settled  Land  Act,  1882,  s.  35,  to  be  paid  out  of 
the  purchase  money  the  value  of  the  timber : — 
Held,  that  the  amount  of  the  valuation  of  the 
timber  was  an  addition  to  the  price  which  the 
purchaser  agreed  to  pay  for  the  estate,  and  must 
be  treated  as  capital  money  payable  to  the 
trustees  under  s.  21  of  the  Settled  Land  Act, 
1883,  and  that  the  claim  by  the  tenant  for  life 
to  be  paid  the  sums  asked  for  failed.  Llewellin, 
Im  re,  IleweUin  v.  William*,  37  Ch.  D.  317  ;  57 
L.  J„  Ch.  316 ;  58  L.  T.  152 ;  86  W.  R.  347— 
Stirling,  J. 

b.  Application  o£ 

i  Cost*  and  Incumbrances. 

Payment  of  Coots.  ]— In  1881  a  tenant  for  lite 
contemplated  a  sale  of  the  estate,  but  he  was 
restrained  from  selling  (either  under  the  power 
in  the  will  or  under  that  contained  in  the  Settled 
Land  Act)  by  an  injunction  granted  in  an  action 
brought  by  persons  entitled  in  remainder.  In 
1884  the  action  was  dismissed  with  costs.  The 
tenant  for  life  claimed  to  be  paid  the  difference 
of  hit  costs,  as  between  party  and  party  and 


solicitor  and  client : — Held,  that  he  was  entitled, 
in  defending  the  action  which  was  dismissed 
with  costs,  to  be  paid  his  extra  costs  of  so  much 
of  the  action  as  related  to  the  exercise  of  the 
powers  contained  in  the  Settled  Land  Act  as 
incidental  to  the  exercise  of  his  power  of  sale 
under  the  provisions  of  the  Settled  Land  Act, 
1882.    lb. 

Costs  irrecoverable  from  an  insolvent  com- 
pany were  ordered  to  be  paid  out  of  a  fund 
in  court  to  the  tenant  for  life.  Navan  and 
Kingscourt  Railway,  In  re,  Dyas,  Em  parte,  21 
L.  R.,  Ir.  369— M.  R. 

"  Proceedings  for  Protection  of  Settled 

Land"— Parliamentary  Proceedings.] — Proceed- 
ings successfully  prosecuted  before  the  House  of 
Lords  Committee  for  Privileges  to  establish  a 
claim  to  an  earldom,  the  consequences  of  which 
were  that  the  petitioner  afterwards  recovered 
estates  which  were  subject  to  similar  limitations, 
held  to  be  "  proceedings  taken  for  the  protection 
of  settled  land,"  the  costs  of  which  the  court 
directed  to  be  paid  out  of  property  subject  to 
the  settlement,  under  s.  36  of  the  Settled  Land 
Act,  1882.  Form  of  order.  CamaSs  WW, 
In  re  (30  Ch.  D.  136),  considered.  Aylesfortfs 
(Earl)  Settled  Estates,  In  re,  32  Ch.  D.  162 ; 
55  L.  J.,  Ch.  523  ;  54  L.  T.  414 ;  34  W.  R.  410 
— V.-C.  B. 

Incumbrance  affecting  Inheritance.]  —  The 

Eroceeds  of  settled  land  sold  by  the  tenant  for 
fe  under  the  Settled  Land  Act,  1882,  can  be 
applied  in  paying  off  a  debt  secured  by  a  mort- 
gage of  a  long  term.  Irewen,  In  re,  freioen  v. 
James,  32  Ch.  D.  388  ;  57  L.  J.,  Ch.  1052 ;  59 
L.  T.  131 ;  36  W.  R.  840— North,  J. 


Sale  of  Heirlooms.] — The  money  arising 


by  the  sale,  on  the  application  of  the  tenant  for 
life  with  the  sanction  of  the  court,  of  chattels 
treated  in  a  settlement  as  heirlooms,  and  so  far 
as  the  rules  of  law  and  equity  would  permit 
annexed  to  the  settled  freehold  land,  may  be 
applied  in  the  discharge  of  incumbrances  affect- 
ing the  inheritance  of  the  settled  land,  without 
keeping  such  incumbrances  on  foot  for  the 
benefit  of  the  infant  remainderman  in  whom  the 
heirlooms  would,  if  unsold,  have  vested  absolutely 
on  his  attaining  twenty-one.  Marlborough's 
(Duke)  Settlement,  In  re,  Marlborough  (Duke) 
v.  Majoribanks,  32  Ch.  D.  1  ;  55  L.  J.,  Ch.  339  ; 
54  L.  T.  914  ;  34  W.  R.  377— C.  A. 

Mortgage    affecting    Part  of    Settled 

Estate.  ]— Under  sub-s.  2  of  8.  21  of  the  Settled 
Land  Act,  the  purchase-money  could  be  applied 
in  discharging  a  mortgage  which  affected  part  of 
the  land  sold  and  another  mortgage  which 
affected  another  part  of  the  settled  estate,  and 
that  it  was  not  necessary  that  the  other  mort- 
gage should  be  one  affecting  the  whole  of  the 
settled  estates.  Chaytor's  Settled  Estate  Act, 
In  re,  25  Ch.  D.  651  ;  53  L.  J.,  Ch.  312  ;  50  L. 
T.  88  ;  32  W.  R.  517— Pearson,  J. 


Tithes   subject   to   Annuity — Purchase 


with  a  view  to  discharge  Incumbrance.] — By  a 
charter  in  the  reign  of  James  I.  a  grant  was 
made  of  certain  tithes  issuing  out  of  the  rectory 
of  St.  Botolph  Without,  Aldgate,  in  the  City 
of  London,  to  persons  named  in  the  grant,  their 

3  G 


1685 


SETTLEMENT— Settled  Land  and  Estates. 


1686 


heirs  and  assigns.  In  1804,  by  a  marriage  settle- 
ment, it  was  provided  that  an  annuity  or  clear 
yearly  rentcharge  of  6401.  should  issae  and  be 
payable  out  of  the  tithes  in  question  for  the 
term  of  1,000  years.  The  tithes  afterwards 
became  vested  in  the  trustees  of  a  will,  subject 
to  the  annuity  created  by  the  settlement.  The 
trustees  sold  part  of  the  tithes  to  certain  railway 
companies  for  the  sum  of  30,670£.  The  tenant 
for  life  under  the  will  contended  that  the 
trustees  of  the  will  might,  under  s.  33  of  the 
Settled  Land  Act,  1882,  invest  or  apply  the 
30,670/.  as  capital  money  arising  under  that  act. 
By  s.  21  of  the  same  statute  it  is  provided  that 
capital  money  shall  be  applied  (inter  alia)  in 
discharge,  purchase,  or  redemption  of  in- 
cumbrances affecting  the  inheritance  of  the 
settled  land,  or  other  the  whole  estate  the  subject 
of  the  settlement.  The  tenant  for  life  asked 
that  the  trustees  might  be  at  liberty  to  apply 
the  30,6702.  in  the  purchase  of  the  annuity 
created  by  the  settlement  with  a  view  to  its 
discharge : — Held,  that  the  tithes  were  un- 
questionably an  incorporeal  hereditament ;  and 
that,  as  s.  2  sub-e.  (10)  of  the  Settled  Land  Act, 
1882,  includes  incorporeal  hereditaments,  such 
tithes  as  the  tithes  in  question  were  included. 
Held,  also,  that  the  annuity  created  by  a  settle- 
ment was  not  a  rent,  because  it  did  not  issue  out 
of  a  corporeal  hereditament ;  but  that  it  was  an 
incumbrance  on  the  tithes,  and  an  incumbrance 
affecting  the  inheritance  within  the  meaning  of 
the  Settled  Land  Act,  1882.  Held,  therefore, 
that  the  trustees  might  be  at  liberty  to  purchase 
the  annuity  with  a  view  to  its  discharge. 
Esdaile,  In  re,  Esdaile  v.  Esdaile,  54  L.  T.  637 
— Chitty,  J. 

Land  Drainage  Charge.] — Where  settled 

land  is  subject  to  a  charge  for  land  drainage 
improvements,  repayable  by  instalments,  money 
in  the  hands  of  the  trustees  of  the  settlement 
which  is  applicable  as  capital  money  arising 
under  the  Settled  Land  Act,  1882,  may  now, 
under  the  provisions  of  the  Settled  Land  Acts 
(Amendment)  Act,  1887,  be  from  time  to  time 
applied  in  payment  of  such  portions  of  the  in- 
stalments as  represent  capital,  so  as  to  relieve 
the  tenant  for  life  from  the  payment  thereof, 
but  such  money  ought  not  to  be  applied  in  pay- 
ment of  such  portions  of  the  instalments  as 
represent  interest.  Sudeley'e  (Lord)  Settled 
Estates,  In  re,  37  Ch.  D.  123  ;  57  L.  J.,  Ch.  182  ; 
58  L.  T.  7  ;  36  W.  R.  162— Kay,  J. 

Purchase  money  of  settled  lands  may  be 
applied,  at  the  instance  of  the  tenant  for  life,  in 
redemption  of  rent  charges  payable  for  loans  for 
the  drainage  and  improvement  of  other  lands 
settled  upon  the  like  uses.  Nanan  and  Kings- 
eourt  Railway,  In  re,  Dyas,  Eos  parte,  21  L.  R., 
Ir.  369— M.  R. 

Where  a  tenant  for  life  of  settled  land  has 
prior  to  the  Settled  Land  Act,  1882,  created 
charges  for  land  drainage  and  improvements 
under  the  Improvement  of  Land  Act,  1864,  and 
other  acts,  which  were  repayable  by  instalments, 
he  will  not  be  entitled  under  the  Settled  Land 
Act,  s.  21,  sub-s.  2,  to  have  these  charges  paid 
out  of  the  capital  of  the  settled  estates  so  as  to 
relieve  him  from  the  payment  of  the  instal- 
ments. Trustees  who  purchase  such  charges 
will  hold  them  upon  trust  to  receive  the  instal- 
ments payable  by  the  tenant  for  life,  and  to 
treat   them    as  capital.    KnatehbulVs   Settled 


Estate,  In  re,  29  Ch.  D.  588  ;  54  L.  JM  Ch.  1168 ; 
53  L.  T.  284  ;  33  W.  R.  569— C.  A. 


ii.  Improvements. 

"Silos."]— The  tenant  for  life  of  a  settled 
estate  after  the  passing  of  the  Settled  Land  Act, 
constructed  "silos"  upon  the  estate,  and  pro- 
posed to  construct  others.  He  then  applied  to 
the  court  to  allow  payment  for  the  work  done 
out  of  capital  trust  money  under  s.  25  (xL)  of 
the  act : — Held,  that  though  a  "  silo "  might 
come  within  the  term  "  buildings  "  used  in  the 
act,  yet,  inasmuch  as  the  construction  of  silos 
was  in  the  nature  of  an  experiment,  the  expen- 
diture could  not  be  sanctioned.  Broadwater 
Estate,  In  re,  54  L.  J.,  Ch.  1104  ;  53  L.  T.  745 ; 
33  W.  R.  738— C.  A. 

Water  Supply  — Drainage  — Rebuilding.]  — 
A  tenant  for  life  under  a  settlement  containing 
a  discretionary  trust  for  sale  of  the  settled 
estates,  and  also  a  power  to  sell  certain  settled 
heirlooms,  asked  leave  of  the  court  under  s.  37  of 
the  Settled  Land  Act,  1882,  that  he  might  be 
authorised  to  sell  part  of  the  settled  estates,  and 
also  a  specified  portion  of  the  heirlooms ;  tfast 
the  money  might  be  paid  to  the  trustees,  and 
that  such  part  as  might  be  necessary  might  be 
applied  by  them  in  paying  for  certain  improve- 
ments, consisting  of  (1)  a  larger  and  better  sop- 
ply  of  water  to  a  mansion-house  ;  (2)  a  new  and 
improved  system  of  drainage  of  the  mansion- 
house  ;  (3)  rebuilding  of  the  stables,  which  were 
out  of  repair;  (4)  the  building  of  an  agent's 
house;  and  (5)  the  building  of  two  cottages. 
The  trustees  submitted  that  the  proposed  im- 
provements (except  the  cottages)  were  not 
within  the  25th  section  of  the  act  of  1882 ;  and, 
that  even  if  they  were,  the  court  would  not 
supersede  the  power  of  the  trustees  by  giving 
leave  to  the  tenant  for  life  to  sell  either  the 
estate  or  the  heirlooms : — Held,  that  the  proposed 
outlay  was  all  within  s.  25  of  the  Settled  Land 
Act,  1882  ;  and  would  have  been  authorised 
without  the  statute;  and  leave  given  to  the 
tenant  for  life  to  sell  both  the  settled  estates  and 
the  heirlooms,  and  for  the  application  of  the 
proceeds  as  prayed.  Houghton's  Estate,  In  rv, 
or  Cholmonaeley's  (Marquis)  Settled  Estate,  J» 
re,  30  Ch.  D.102  ;  65  L.  J.,Ch,37  ;  63  L.T.196; 
33  W.  R.  869— V.-C.  B. 

Extra  Expenditure  —  8eheme — General  Ap- 
proval of  Trustees.  1 — In  carrying  out  a  scheme, 
which  has  been  duly  approved  by  the  trustees, 
for  improvements  of  permanent  benefit  to  the 
settled  estate,  extra  expenditure,  not  included  in 
the  contract  forming  part  of  the  scheme  sub- 
mitted to  the  trustees,  may  be  charged  on 
capital  moneys  part  of  the  settled  estate  in  the 
hands  of  the  trustees,  where  such  extra  expendi- 
ture is  incidental  to  and  has  properly  been 
incurred  in  a  due  execution  of  the  scheme,  and 
where  the  approval  of  the  trustees  has  been 
general,  and  not  limited  to  the  particular  amount 
mentioned  in  the  contract  JBulwer  Lytton's 
Will,  In  re,  Knebworth  Settled  Estates,  In 
re,  38  Ch.  D.  20  ;  57  L.  J.,  Ch.  340  ;  69  L.T.12; 
36  W.  R.  420— C.  A. 

Approval  of  Scheme  by  Trnsteee  bete* 
work  commenced.] — In  order  that  the  court  may 


1637 


SETTLEMENT— Settled  Land  and  Estates. 


1688 


sanction  the  expenditure  of  "capital  money" 
under  the  Settled  Land  Act,  in  payment  of  the 
cost  of  permanent  improvements  to  the  settled 
estate,  a  scheme  for  the  proposed  works  mast  be 
submitted  by  the  tenant  for  life  to  the  trustees, 
before  the  works  are  commenced.  If  the  tenant 
for  life  executes  the  works  at  his  own  expense, 
without  first  submitting  a  scheme  to  the  trustees 
and  obtaining  their  approval,  the  court  cannot 
then  authorise  the  repayment  of  the  cost  out  of 
"  capital  money."  Whether  the  expense  of  im- 
provements on  lands  which  have  been  sold,  and 
so  are  no  longer  comprised  in  the  settlement,  can 
be  afterwards  paid  out  of  capital  money,  quaere. 
Eotehhin's  Settled  Estates,  In  re,  35  Ch.  D.  41 ; 
56  L.  J..  Ch.  445  ;  56  L.  T.  244  ;  36  W.  R.  463— 
C.A. 

Whether  the  court  had  power  to  sanction  the 
payment  for  past  expenditure,  quaere.  Broad- 
voter  Estate,  In  re,  54  L.  J.,  Ch.  1104  ;  53  L.  T. 
745 ;  33  W.  R.  738— C.  A. 

Appearanee  by  Trustees  on  Application.] — 
The  court  will  not  hear  counsel  for  the  trustees 
of  a  settlement  in  support  of  an  application  by 
the  tenant  for  life  when  his  interest  is  opposed 
to  those  of  the  remaindermen,  it  being  the  duty 
of  the  trustees  to  act  as  a  check  upon  him. 
llatehiin's  Settled  Estates,  In  re,  supra.  Per 
North,  J. 

On  such  an  application,  the  trustees  should 
appear  separately.  Broadwater  Estate,  In  re, 
supra. 

Sight  of  Tenant  for  Life  —  Discretion.  ]  — 
A  tenant  for  life  of  settled  lands  is  not  deprived 
of  the  right  of  requiring  capital  moneys  arising 
under  the  settlement  to  be  applied  in  payment 
for  permanent  improvements  by  reason  of  the 
trustees  having  powers  under  which  they  might 
make  the  improvements  themselves  and  pay  for 
them  oat  of  the  rents  and  profits  of  the  settled 
property.  The  fact  that  the  tenant  for  life  will 
derive  a  benefit  from  the  exercise  of  any  power 
under  the  Settled  Land  Act  is  not  in  itself  suffi- 
cient to  prevent  him  from  exercising  the  honest 
discretion  required  of  him  by  8.  63  of  the 
act  Stamford's  {Lord)  Estate,  In  re,  56  L.  T. 
484— Stirling,  J. 

lepairs  and  Improvements — Income  or  Capi- 
tal. J — Lands  were  devised  in  1861  to  trustees 
during  the  lives  of  certain  tenants  for  life,  in 
trust  to  receive  the  rents  and  manage  the  estate 
with  the  powers  of  absolute  owners.  An  annuity 
was  directed  to  be  paid  to  the  tenant  for  life  in 
possession  out  of  the  rents,  and  the  surplus  rents 
were  to  be  laid  out  in  the  purchase  of  real  estates, 
or  accumulated  for  a  period  of  twenty-one  years 
from  testator's  death,  and  the  income  of  the 
accumulations  paid  to  the  tenant  for  life  ;  from 
the  expiration  of  that  period  the  whole  of  the 
surplus  rents  yearly  accruing  to  be  paid  to  the 
tenant  for  life  in  possession,  and  also  the  income 
of  the  accumulated  surplus.  The  period  of 
twenty-one  years  from  testator's  death  expired  in 
January,  1885.  The  trustees  named  in  the  will 
disclaimed,  and  the  property  had  since  been 
managed  by  a  receiver,  appointed  by  the  court. 
The  surplus  rents  accumulated  during  the 
twenty-one  years  amounted  to  37,000/.  Repairs 
and  improvements  amounting  to  between  4,000/. 
and  5,000/.  were  required  to  be  made  on  the 
settled  property :— Held,  that  such  of  the  pro- 


posed works  as  were  in  the  nature  of  improve- 
ments within  the  description  contained  in  s. 
25  of  the  Settled  Land  Act.  1882,  should  be 
provided  for  out  of  the  37,000/.,  which  was 
capital  money  within  the  act,  and  that  those 
which  were  merely  repairs  must  be  paid  for  out 
of  the  income  of  the  property.  Clarke  v. 
Thornton,  35  Ch.  D.  307  ;  56  L.  J.,  Ch.  302  ;  56 
L.  T.  294  ;  35  W.  R.  603— Chitty,  J. 


iii.  In  Other  Cases. 

Transfer  of  Funds  to  Trustees  of  Settlement.] 
— Lands  in  settlement  having  been  purchased 
compulsorily  under  statutory  powers,  an  order 
was  made  to  transfer  the  funds  in  court  repre- 
senting the  purchase-money  to  the  trustees  of 
the  settlement.  Rathmines  Drainage  Act,  In 
re,  15  L.  R.,  Ir.  576— M.  R. 


Option  of  Tenant  for  Life— Power  of 


Trustees  to  give  Receipts.]— In  1859  a  suit  was 
instituted  for  the  administration  of  the  estate  of 
a  testator,  who  had  devised  land  in  strict  settle- 
ment. In  1886  the  tenant  for  life  sold  the  land 
under  the  provisions  of  the  Settled  Land  Act. 
Trustees  had  previously  been  appointed  by  the 
court  for  the  purposes  of  the  act.  The  purchaser 
refused  to  complete  his  contract,  unless  the  pur- 
chase-money was  paid  into  court,  and  an  order 
was  made  on  his  application,  with  the  consent  of 
the  tenant  for  life,  giving  him  liberty  to  pay  it 
in,  and  it  was  paid  in  accordingly : — Held,  that 
by  consenting  to  the  order  for  payment  of  the 

Eurchase-money  into  court,  the  tenant  for  life 
ad  exercised  the  option  given  to  him  by  sub- 
8.  1  of  s.  22  of  the  act,  ot  having  the  money 
paid  either  to  the  trustees  of  the  settlement  or 
into  court,  and  that  the  money  could  not,  there- 
fore, be  paid  out  to  the  trustees,  but  must  remain 
in  court,  and  be  invested  or  applied  under  the 
direction  of  the  court.  Semble,  that  the  power 
to  give  receipts,  which  is  conferred  on  trustees 
by  8.  40  of  the  act,  extends  to  trustees  appointed 
by  the  court  under  s.  38.  Cookes  v.  Cookes,  34 
Ch.  D.  498  ;  56  L.  J.,  Ch.  397  ;  56  L.  T.  159  ;  35 
W.  R.  402— North,  J. 

Funds  in  Court — Interim  Investment.]— Lands 
belonging  absolutely  to  a  charity  were  taken  by 
a  public  body, and  the  purchase-moneypaid  into 
court  under  the  Lands  Clauses  Act : — Held,  that 
the  purchase-money  could  be  dealt  with  under 
the  provisions  of  the  32nd  section  of  the  Settled 
Land  Act,  1882,  as  "  money  liable  to  be  laid  out 
in  the  purchase  of  land  to  be  made  subject  to  a 
settlement."  Byron's  Charity,  In  re,  23  Ch.  D. 
171 ;  53  L.  J.,  Ch.  152  ;  48  L.  T.  515  ;  31  W.  R. 
617— Pry,  J. 

Sale  of  Reversion  on  a  Lease — Application  of 
Income.]— S.  34  of  the  Settled  Land  Act,  1882, 
and  s.  74  of  the  Lands  Clauses  Consolidation  Act, 
1845,  are  similar  enactments,  so  that  where  the 
facts  are  similar  decisions  on  s.  74  are  authori- 
ties on  s.  34.  As  between  tenant  for  life  and 
remainderman,  where  lands  subject  to  a  bene- 
ficial lease  are  sold  under  the  Settled  Land  Act, 
1882,  the  tenant  for  life  will,  during  the  unex- 
pired period  of  the  term,  be  entitled  to  so  much 
only  of  the  income  of  the  invested  purchase- 
moneys  as  equals  the  rents  under  the  lease,  and 
the  rest  of  that  income  must  be  accumulated 

3  O  2 


1689 


SHERIFF. 


1640 


and  invested  for  the  benefit  of  the  inheritance 
until  the  date  when  the  lease  would  have 
expired.  Cottrell  v.  Cottrell,  28  Ch.  D.  628 ; 
64  L.  J.,  Ch.  417  ;  62  L.  T.  486  ;  33  W.  R.  361— 
Kay,  J. 

Tenant  in  Tail  restrained  from  Alienation- 
Payment  out  to  Trustees.] — Where  funds  of 
large  amount  were  in  court,  representing  the 
proceeds  of  sale  of  settled  lands  which  were 
vested  in  a  tenant  in  tail  who  was  restrained  by 
statute  from  alienating,  the  funds  were,  on  the 
application  of  the  tenant  in  tail,  ordered  to  be 
paid  out  to  trustees  appointed  for  the  purposes 
of  the  Settled  Land  Acts,  1882  and  1884 ;  but 
the  court  declined  to  direct  the  trustees  to  give 
notice  of  any  intended  investments  to  the  tenant 
in  tail  next  in  remainder.  Bolton  Estate*  Act, 
In  re,  62  L.  T.  728— Kay,  J. 

Payment  of  Money  out  of  Court— Appointment 
of  Trustees.] — Where  a  testator's  daughter  was 
beneficial  tenant  for  life  of  a  fund  paid  into 
court  upon  the  compulsory  purchase  of  the  tes- 
tator's property,  the  daughter  being  one  of  the 
two  trustees  of  the  will,  and  both  trustees  being 
desirous  of  regaining  their  trusts,  and  there  being 
no  power  of  sale  in  the  will,  the  court  appointed 
two  new  trustees  of  the  settlement  effected  by 
the  will  for  the  purposes  of  the  Settled  Land 
Act,  1882,  and  ordered  the  fund  to  be  paid  out 
to  such  trustees,  to  be  held  by  them  upon  the 
trusts  of  the  will.  Wright's  Zrusts,  In  re,  24 
Ch.  D.  662  ;  63  L.  J.,  Ch.  139— North,  J. 

A  testator  devised  freehold  property  to  trus- 
tees in  trust  for  his  grandson  for  life,  and  then 
for  his  issue  in  tail.  There  were  four  trustees 
of  the  will,  and  the  testator's  grandson  was  one 
of  such  trustees.  The  will  contained  no  power 
of  sale.  Shortly  after  the  testator's  death  a 
portion  of  the  property  comprised  in  the  will 
was  purchased  by  a  railway  company  under 
their  powers,  and  the  money  was  paid  into  court. 
Upon  petition  for  payment  of  the  money  out  of 
court,  an  order  was  made  appointing  three  of 
the  trustees  of  the  will,  omitting  the  testator's 
grandson  (the  tenant  for  life),  to  be  trustees  of 
the  settlement  effected  by  the  will  for  the  pur- 
poses of  the  Settled  Land  Act,  1882 ;  and  the 
fund  was  ordered  to  be  paid  out  to  such  three 
trustees  to  be  held  by  them  upon  the  trusts  of 
the  will.  And  it  appearing  that  the  trustees  of 
the  will  had  advanced  a  large  sum  of  money  on 
mortgage,  including,  by  anticipation,  a  sum  of 
money  equivalent  to  the  fund  in  court — it  was 
ordered  that  the  three  trustees  appointed  by  the 
court  be  at  liberty  to  pay  the  fund  to  the  four 
trustees  of  the  will  upon  the  execution  by  them 
of  a  declaration  of  trust  in  favour  of  the  three 
trustees  of  so  much  of  the  principal  sum  secured 
by  the  mortgage  as  should  be  equivalent  to  the 
proceeds  of  the  fund  ordered  to  be  paid  out  of 
court  Harrofs  Trusts,  In  ret  24  Ch.  D.  717 ; 
63  L.  J.,  Ch.  137 ;  48  L.  T.  937— Pearson,  J. 

Settled  to  such  uses  as  A.  and  B.  should 

Appoint  —  Exeoution  of  Appointment  not  re- 
quired.]—Lands  settled  to  A.  for  life  with 
remainder  to  B.  in  tail  were  sold  under  the 
Settled  Estates  Act,  1877,  the  purchase-money 
was  paid  into  court  and  invested,  and  the  divi- 
dends ordered  to  be  paid  to  A.  for  life.  A.  and 
B.  executed  a  disentailing  assurance  assigning 
the  money  in  court  to  a  trustee  upon  such  trusts 


as  they  should  appoint,  and  discharging  it  of  all 
trusts  for  reinvestment  in  land.  A.  and  B.  peti- 
tioned for  the  payment  out  of  the  fund  to  them. 
They  had  not  executed  an  appointment  to  them- 
selves : — Held,  that  the  money  might  be  paid 
out  without  requiring  them  to  execute  any  such 
appointment.  Winstanley's  Settled  Estates,  1% 
re,  54  L.  T.  840— North,  J. 

Transmission  of  Proceeds  of  Bale  by  TnuteM 
to  Amerioa.] — L.  was  entitled  to  a  share  of  cer- 
tain land  in  Wales,  and  by  his  will  he  devised 
the  interest  on  the  principal  of  all  money  re- 
ceived by  his  executors  from  Wales  to  his  wife 
for  life,  and  after  her  death,  then  his  son  was  to 
have  the  whole  of  the  money  on  attaining  twenty- 
one.  L.  died  domiciled  in  America,  and  his  wife 
and  son  (who  was  a  minor)  were  resident  then. 
Trustees  were  appointed  under  the  Settled  land 
Act  of  the  share  of  L.  in  the  land,  and  with  the 
consent  of  the  other  beneficiaries  it  was  sold. 
Application  was  made  that  L.'s  share  might  be 
transmitted  to  his  executors  in  America  to  be 
re-invested  there  : — Held,  that  the  court  had  do 
power  to  allow  the  money  to  be  sent  to  America, 
and  that,  if  necessary,  trustees  must  be  appointed 
under  the  act  to  receive  it  in  that  country. 
Lloyd,  In  re,  Edwards  v.  Lloyd,  54  L.  T.  64J— 
Pearson,  J. 


SEWERS. 

In  Metropolis.  ]— See  Metropolis. 
In  other  Places.]— &«  Health. 
Courts  of— Presentments  at.]— See  Sea. 


SEXTON. 

See  ECCLESIASTICAL  LAW. 


SHARES. 

See  COMPANY. 


SHERIFF. 

1.  Duties  and  Liabilities,  1640. 

2.  Fees  and  Costs,  1643. 

3.  Interpleader  by. — See  Intkbplkabkb. 

4.  What  may  be  taken  t»  Execution,  £ft- 

See  Execution. 


1.  Duties  and  Liabilities. 

Executing  Writ  of  Attachment]— Where  a 
writ  of  attachment  has  issued  against  a  part/ 


1641 


SHERIFF. 


1642 


to  an  action  for  contempt  of  court  in  non-com- 
pliance with  an  order  for  the  delivery  over  of 
deeds  and  documents,  the  officer  charged  with 
the  execution  of  the  writ  may  break  open  the 
outer  door  of  the  house  in  order  to  execute  it. 
Harvey  v.  Hartey,  26  Ch.  644  ;  51  L.  T.  608 ; 
33  W.  R.  76  ;  48  J.  P.  468— Ohitty,  J. 

Several  Writ!  of  Execution.] —The  duty  of 
a  sheriff  who  has  several  writs  of  execution 
to  execute  is  to  execute  first  that  writ  which 
is  first  delivered  to  him  ;  and  when  he  has  sold 
enough  to  satisfy  that  writ,  to  sell  under  the 
next  in  order.  Therefore,  if  the  proceeds  of  the 
sale  of  the  goods  of  a  debtor  are  not  enough  to 
satisfy  the  earlier  writs  in  the  hands  of  the 
sheriff,  there  can  be  no  sale  under  the  subse- 
quent writs.  Crosthwaite,  Ex  parte,  Pearce,  In 
re,  14  Q.  B.  D.  966  ;  54  L.  J.,  Q.  B.  316 ;  52 
L.  T.  618  ;  33  W.  R.  614  ;  2  M.  B.  R.  106— 
Gave,  J. 

Setting  aaido  Sale— Plaintiff  purchasing  for 
Veninal  Consideration.]— The  defendant's  chat- 
tel interest  in  a  farm  of  land  was  put  up  for 
sale  under  a  fi.  fa.  at  the  suit  of  the  landlord, 
who  was  the  execution  creditor.  The  sale 
was  fully  advertised,  and,  after  two  adjourn- 
ments for  want  of  bidders,  the  solicitor  for  the 
plaintiff,  who  was  the  only  bidder  at  the  third 
sale,  was  declared  the  purchaser  for  11.  The 
interest  in  the  farm  was  admittedly  of  value, 
but  in  the  absence  of  collusive  or  improper 
conduct  by  the  sheriff,  the  court  refused  to  set 
aside  the  sale.  Cramer  v.  Murphy.  20  L.  R., 
Ir.  572— Q.  B.  D. 

femoral  of  Goods  for  Sale.]— Semble,  a 
sheriff  acts  improvidently  in  removing  goods 
for  sale  from  the  judgment  debtor's  establish- 
ment without  his  assent  or  other  sufficient 
grounds,  Purcell,  In  re,  13  L.  R.,  Ir.  489— 
Miller,  J. 

Withdrawal— Power  to  Re-enter.]— Where 
the  sheriff  has  entered  and  then  withdrawn  his 
writ  in  consequence  of  an  arrangement  having 
been  come  to  between  the  execution  creditor 
and  the  execution  debtor,  the  sheriff  cannot 
re-enter  again  without  fresh  instructions  from 
the  execution  creditor.  Shaw  v.  Kirby,  52  J.  P. 
182— Huddleston,  B. 

fleeond  Writ    by    different    Judgment 

Creditor.] — If  a  second  execution  creditor  levies 
a  writ  at  a  date  subsequent  to  the  first  execution 
creditor's  levy  and  anticipates  the  first  execu- 
tion creditor  in  consequence  of  such  arrangement 
as  aforesaid,  there  is  no  duty  cast  upon  the 
sheriff  to  report  the  fact  of  such  second  writ  to 
the  first  execution  creditor.    lb. 

Beiiure  of   Equity   of  Redemption.]— 

Where  goods  seized  in  execution  by  a  sheriff 
under  a  fL  fa.  have  been  previously  assigned  by 
the  execution  debtor  to  a  third  person  as 
security  for  a  debt,  the  sheriff  is  not  bound  to 
interplead  and  thereby  enable  proceedings  to  be 
taken  for  an  order  to  sell  being  made  by  a  judge 
under  s.  13  of  the  Common  Law  Procedure  Act, 
1860,  but  is  at  liberty  to  withdraw,  though  the 
value  of  the  goods  seized  exceed  the  sum  secured 
by  the  bill  of  sale,  and  the  execution  debtor 
therefore  has  an  equity  of  redemption  which  is 


valuable.  Scarlett  v.  Ramon,  12  Q.  B.  D.  213  ; 
53  L.  J.,  Q.  B.  62  ;  50  L.  T.  75 ;  32  W.  R.  310 
— C.A. 

Notice  of  Landlord's  Claim  for  Sent.] — There 
is  no  legal  obligation  upon  a  sheriff  to  give  an 
execution  creditor  notice  of  a  landlord's  claim 
for  rent.  Davidson  v.  Allen,  20  L.  R.,  Ir.  16 
— Q.  B.  D. 

Non-Execution  of  Process — Same  Under-sheriff 
Acting  under  Sucoessive  Sheriff.] — In  Novem- 
ber, 1883,  while  D.  was  high  sheriff  of  the 
county  of  K.,  civil  bill  decrees  for  money 
demands  were  delivered  to  his  sub-sheriff,  L., 
for  execution  in  February,  1884.  The  solicitor 
for  the  plaintiff  in  the  decrees  wrote  to  L., 
complaining  of  their  non-execution,  and  by 
letter,  dated  the  18th  of  that  month,  L.  wrote 
in  reply,  stating  that  he  had  been  unable  to 
levy  the  amounts,  and  asking  for  information  as 
to  the  goods  of  the  defendant  which  the  plaintiff 
alleged  were  available.  On  the  21st  February, 
H.  succeeded  D.  as  high  sheriff,  and  re-appointed 
L.  sub-sheriff,  who  retained  the  decrees  until 
July,  when  he  returned  them  unexecuted.  They 
were  in  force  until  June.  It  was  admitted  that 
after  H.'s  appointment  the  defendants  had  suffi- 
cient goods  from  which  the  amounts  of  the  de- 
crees might  have  been  levied : — Held,  that  H. 
was  liable  in  an  action  for  negligence  for  not 
having  executed  the  decrees ;  that,  having  re- 
gard to  the  fact  that  L.  continued  in  office  as 
sub-sheriff,  it  was  immaterial  that  no  list  had 
been  made  if  the  decrees  in  question  were  more 
than  two  months'  old ;  that  the  measure  of 
damages  was  the  amount  of  the  decrees.  &m- 
mons  v.  Henehy,  16  L.  B.,  Ir.  467— C.  P.  D. 

Under-sheriff— Liability  of,  for  Proceeds  of 
Execution  —  Death  of  Sheriff— Vacancy  of 
Shrievalty.] — Where  an  under-sheriff  (since 
deceased)  acting  as  sheriff  during  the  vacancv 
of  the  shrievalty  under  3  Geo.  1,  c.  15,  s.  8. 
wrongfully  retained  the  proceeds  of  an  execu- 
tion : — Held,  that  an  action  for  money  had  and 
received  was  maintainable  against  the  executor 
of  the  under-sheriff  by  the  execution  creditors  to 
recover  the  sum  so  wrongfully  retained.  [See 
now  the  Sheriffe  Act,  1887  (50  &  61  Vict.  c.  55), 
s.  25.]  Gloucestershire  Banking  Company  v. 
Edwards,  20  Q.  B.  D.  107  ;  57  L.  J.,  Q.  B.  61  ; 
58  L.  T.  463  ;  36  W.  R.  116—0.  A. 

Liability  for  Removal  of  Goods  after  Claim  tor 
Rent.]— fifed  Landlord  and  Tenant,  IV.  1. 

Liability  for  Damage  to  Goods  soiled.}— A 
sheriff  is  not  liable  for  damage  to  goods  which 
he  has  seized  under  a  fi.  fa.  caused  by  a  mob 
breaking  in  and  injuring  the  goods,  if  he  has 
used  reasonable  care  and  diligence  in  protect- 
ing them.  Willis  v.  Combe,  1  C.  &  E.  353— 
Stephen,  J. 

Semble,  if  a  sheriff  is  let  into  possession  of 
goods,  of  which  a  receiver,  appointed  by  the 
Court  of  Bankruptcy,  is  already  in  possession, 
he  will  not  be  liable  in  damages  for  not  protect- 
ing the  goods  against  third  parties.    lb. 

Liability  for  Seixure — Interpleader  Order  Re- 
scinded.]— Where  an  interpleader  order  provided 
that  no  action  should  be  brought  against  the 
sheriff,  and  the  order  was  subsequently  rescinded 


1643 


SHIPPING. 


1644 


owing  to  the  default  of  the  execution  creditor  to 
return  the  issue  : — Held,  that  the  claimant  had 
no  cause  of  action  against  the  sheriff  for  the 
original  seizure.  Martin  v.  Tritton,  1  C.  &  E. 
226— Lopes,  J. 

Liability  for  Non-return.]— A  sheriff  cannot  be 
held  liable  for  the  non-return  of  a  writ  of  fi.  fa. 
until  he  has  been  called  upon  and  has  neglected 
to  make  a  return,  and  such  neglect  as  will  give 
a  cause  of  action  must  be  specifically  alleged  in 
the  statement  of  claim.  Shaw  v.  Kir  by,  52  J.  P. 
182— Huddleston,  B. 

False  Return— Levy — Cheque  from  Debtor- 
Performance  of  Condition.]— After  the  death,  in 
Hay,  1880,  of  A.,  a  shopkeeper,  his  daughter  B. 
carried  on  the  business.  Judgment  was  obtained 
against  B.  personally,  and  a  fi.  fa.  issued  thereon 
and  delivered  to  the  sheriff  in  March,  1881.  At 
this  time  B.  was  in  possession  of  shop  goods  of 
considerable  value,  some  of  which  had  been  the 
property  of  A.  in  his  lifetime,  and  the  rest  were 
purchased  out  of  the  proceeds  of  sale  of  other 
goods  of  A.  The  sheriff,  having  required  and 
obtained  an  indemnity  from  the  execution 
creditor  before  seizure,  received  from  the  execu- 
tion debtor  a  cheque  for  982.,  which,  according 
to  the  evidence  of  some  of  the  witnesses  on 
behalf  of  the  sheriff,  was  given  to  him  as  a 
security  that  the  goods  would  be  forthcoming  in 
a  short  time,  with  the  view  of  awaiting  the 
result  of  certain  proceedings  in  the  Chancery 
Division  then  pending.  The  sheriff  subsequently 
made  a  return  of  nulla  bona,  and  the  execution 
creditor  having  brought  an  action  against  him 
for  a  false  return,  and  for  money  bad  and  re- 
ceived, he  repaid  the  amount  of  the  cheque  to 
the  execution  debtor,  having  retained  it  for  a 
period  of  about  ten  months ;  and  at  the  trial 
claimed  to  have  a  verdict  directed  in  his  favour 
on  the  grounds  that  the  goods  were  not  the 
goods  of  B.,  and  that  the  giving  of  the  cheque 
under  the  circumstances  was  not  a  levy.  No 
evidence  was  given  of  any  testamentary  dis- 
position by  A.  The  judge  having  refused  to 
give  such  direction,  and  a  verdict  having  been 
found  for  the  plaintiff: — Held,  that  assuming 
the  cheque  to  have  been  given  conditionally,  its 
retention  for  so  considerable  a  period  by  the 
sheriff  was  evidence  from  which  the  jury  were  at 
liberty  to  presume  that  the  condition  upon  which 
it  was  to  be  returned  to  the  execution  debtor 
was  not  performed.  Kelly  v.  Browne,  12  L.  R., 
Ir.  348— Ex.  D. 

Beturn— Fi  Fa.— Special  Bailiff]— When  a 
sheriff  has  appointed  a  special  bailiff  to  execute 
a  writ  of  fi.  fa.  at  the  request  and  peril  of  the 
plaintiff,  he  should  move  to  set  aside  any  rule 
subsequently  obtained  by  the  plaintiff  upon  him 
to  return  the  writ.  If  instead  of  doing  so  he 
returns  that  he  appointed  a  special  bailiff,  to 
whom  he  refers  as  to  the  execution  of  the  writ, 
the  return  may  be  set  aside,  even  on  motion  by 
the  plaintiff.  Tail  v.  Mitchell,  22  L.  R.,  Ir.  327 
—Ex.  D. 


2.  Fees  and  Costs. 

"  Cost!  of  Exeoution  "—Expenses  of  Reaping 
Growing  Crops.] — A  sheriff,  having  taken  in 
execution  standing  corn,  expended  money  in 


having  the  same  reaped,  threshed,  and  dressed 
before  sale.  No  authority  to  do  this  was  given 
him  either  by  the  execution  debtor  or  creditor, 
but  it  was  done  by  the  sheriff  for  the  purpose  of 
increasing,  and  did  in  fact  increase,  the  selling 
value  of  the  corn  : — Held,  that  the  sheriff  had 
no  power  to  incur  this  expense,  and  therefore 
was  not  entitled  to  the  same  as  costs  of  the  exe- 
cution under  s.  46  of  the  Bankruptcy  Act,  1883. 
Conder,  Ex  parte,  Woodham,  In  re,  20  Q.  B.  D. 
40  ;  57  L.  J.,  Q.  B.  46  ;  58  L.  T.  116;  36  W.B. 
626— D. 


Poundage.] — When  the'  bankruptcy  of  a 


judgment  debtor  supervenes  after  seizure,  but 
before  sale,  by  the  sheriff  under  a  writ  of  fi.  ft, 
the  sheriff  is  not  entitled  to  poundage  under  the 
words  "  costs  of  execution  "  in  snb-s.  1  of  s.  46 
of  the  Bankruptcy  Act,  1883.  Ludmre  or 
Ludford,  In  re,  13  Q.  B.  D.  415  ;  53  L.  J.,  Q.  B. 
418  ;  51  L.  T.  240  ;  33  W.  R.  152 ;  1M.B.R.  131 
— Cave,  J. 

Foes— Bale  under  fi.  fa.  partially  abortive- 
Part  of  Goods  Sold  before  Banxmptoy  of  Exe- 
cution Debtor.]— A  writ  of  fi.  fa.  for  2832.  UM. 
was  delivered  to  a  sheriff,  under  which  he  seiied 
several  musical  instruments  at  the  warehouse  of 
P.,  the  execution  debtor,  who  was  a  pianoforte 
seller  ;  and  without  receiving  any  directions  from 
either  P.  or  the  execution  creditor,  but  acting  on 
his  own  responsibility,  the  sheriff  without,  as  the 
court  considered,  sufficient  grounds  for  doing  so, 
removed  the  goods  from  P.'s  premises  to  a  sale 
mart  situate  dose  by,  where  a  small  part  of  them 
were  sold  by  auction  for  62/.  5*.,  and  in  conse- 
quence of  the  insufficient  bidding  the  sale  of  the 
remainder  was  adjourned.    P.  was  adjudicated 
a  bankrupt  before  the  day  to  which  the  sale  was 
adjourned.    The  sheriff  claimed,  as  against  P.'s 
assignees  in  bankruptcy,  to  retain  out  of  the 
proceeds  of  the  sale  in  his  bands  fees  on  the 
entire  sum  for  which  the  execution  was  issued, 
together  with  the   expenses  of  removing  the 
goods  to  the  sale  mart  and  the  hire  of  the  mart : 
— Held,  that  the  sheriff  was  only  entitled  to  re- 
tain fees  on  the  amount  actually  levied,  and  that 
the  residue  of  his  claim  must  be  disallowed. 
Purcell,  In  re,  13  L.  R.,  Ir.  48»— Miller,  J. 


SHIPPING. 

I.  Passenger  Ships,  1646. 
IT.  Barges,  1648. 

III.  Owners. 

1.  Part  Owners,  1648. 

2.  Managing  Owners,  1649. 

3.  Actions  of  Restraint,  1650. 

4.  Liability  for  Xecessaries,  1651. 

IV.  Master  and  Seaman. 

1.  Master,  1652. 

2.  Seaman,  1655. 

V.  Sale  and  Mortgage 

1.  Sale,  1657. 

2.  Mortgage,  1657. 


1645 


SHIPPING— Passenger  Ships. 


1646 


VI.  Bills  of  Lading. 

1.  Form  of,  1668. 

2.  Effect  of,  1669. 

3.  Exceptions  f ram  Liability,  1660. 

4.  Righ  ts  and  Liabilities  of  Indorsees, 

1662. 
6.  Sending  with  Bills  of  Exchange, 
1663. 

VII.  Chabtebpabty. 

1.  Stamping,  1663. 

2.  The  Contract,  1663. 

3.  Exemptions  from  Liability,  1667. 

VIIL  Cargo. 

1.  Stowage,  1668. 

2.  6taf«      of     Discharging  —  Bock 

Charges,  1668. 

3.  Actions  for  Loss  and  Non-delivery, 

1670. 

IX.  Freight. 

1.  When  Payable,  1673. 

2.  Jb  and  by  whom  Payable,  1673. 

3.  Time  for  Payment,  1673. 

4.  Rate  and  Amount,  1674. 
6.  Lien,  1674. 

X.  DEMUBBAGE,  1676. 

XL  Pilotage  and  Pilots. 

1.  Exemptions from  Employing , 1678. 

2.  Exemption  of  Owners  from  Lia- 

bility, 1679. 
8.  Other  Matters  relating  to,  1681. 

XII.  Collision. 

1.  On  the  High  Seas. 

a.  Regulations  Generally,  1681. 

b.  Lights,  1683. 
r.  Fog,  1684. 

d.  Vessels  Crossing,  OTertaking, 

and  Meeting,  1686. 

e.  Probability  of  Risk,  1688. 
/.  Speed,  1689. 

g.  Narrow  Channels,  1689. 

2.  In  other  Places. 

a.  Generally,  1690. 

b.  Danube,  1690. 

c.  Humber,  1690. 

d.  Mersey,  1691. 

e.  Tees,  1691. 

/.  Thames,  1691. 
g.  Tyne,  1693. 

3.  Duties  after  Collision,  1693. 

4.  Actions  for  Bamage. 

a.  Generally,  1694. 

b.  What  Recoverable,  1698. 

6.  Limitation  of  Liability. 

a.  In  what  Cases,  1701. 

b.  Practice,  1701. 

X1IL  Salvage  and  Towage. 

1.  Services  entitling  to  Salvage,  1703. 

2.  Life  Salvage,  1704. 

3.  Persons  entitled  to  Salvage,  1706. 

4.  Mights  of  Salvors,  1706. 

6.  Salvage  Agreements,  1707. 
6.  Right  to  Recover   Salvage    Ex- 
penses, 1708. 


7.  Amount  Awardable. 

a.  Principles   on  which  Award 

made,  1709. 

b.  Apportionment,  1710. 

c.  Reviewing  Award  on  Appeal, 

1711. 

8.  Practice  in  Salvage  Actions,  1711. 

9.  Agreements  as  to  Towage,  1712. 
10.  Liability  for  Negligence  in  Towing, 

1713. 

XIV.  BOTTOMBY,  1714. 

XV.  Average,  1716. 

XVI.  Docks,  Harbours,  Lighthouses,  and 
Wharves,  1717. 

XVII.  Jurisdiction. 

1.  Admiralty  Division,  1719. 

2.  County  Courts,  1720. 

3.  Vice-Admiralty  Courts,  1721. 

XVIII.  Pbactice. 

1.  Writ  and  Pleadings,  1721. 

2.  Default  Proceedings,  1722. 

3.  Stay  and  Transfer  of  Proceedings, 

1723. 

4.  Inspection  and  Discovery,  1724. 

5.  Trial,  1724. 

6.  Evidence,  1724. 

7.  Damages,  1726. 

8.  Sale  of  Ship,  1726. 

9.  Warrant  of  A  rrest,  1727. 

10.  Registrar's  Report,  1727. 

11.  Costs,  1728. 

12.  Appeals,  1729. 

XIX.  Wbecks,  1730. 
,XX.  IHQUIBIE8  BY  BOABD  OF  TRADE,  1730. 

XXI.  Detention  of  Ships  by  Board  of 
Tbade,  1730. 


I.  PASSEHGBB    SHIPS. 

Custom  as  to  Bight  to  Cany — Charterparty.] 
A  charterparty,  not  amounting  to  a  demise  ox 
the  ship,  provided  for  the  carriage  of  a  full  and 
complete  cargo  of  lawful  produce  and  mer- 
chandise for  payment  of  a  lump  freight,  but  was 
silent  as  to  the  use  to  which  the  passengers' 
cabins  might  be  put : — Held,  that  the  charterers 
were  not  entitled  to  carry  passengers  in  the 
cabins.  Shaw  v.  Aithen,  1  C.  k  B.  196— 
Denman,  J. 

No  custom  exists  entitling  the  charterer  under 
the  above  circumstances  to  carry  passengers,  or 
entitling  the  shipowner  to  have  passengers  car- 
ried for  his  benefit.    lb. 

Lou  of  Life — Both  Ships  to  blame — Claim  by 
Person  not  responsible  for  Negligence— Ad- 
miralty Bule  as  to  Damages.] — A  passenger  on 
board  the  "  Bushire "  and  one  of  the  crew  lost 
their  lives  by  drowning  in  consequence  of  a 
collision  with  the  "Bernina."  Both  vessels 
were  to  blame,  but  neither  of  the  deceased  had 
anything  to  do  with  the  negligent  navigation  of 
the  "  Bushire  "  : — Held,  that  their  representa- 
tives could  maintain  actions  under  Lord  Camp- 
bell's Act  against  the  owners  of  the  "  Bernina," 


1647 


SHIPPING— Bar^e*— Owner*. 


1648 


and  could  recover  the  whole  of  the  damages ; 
a.  36,  sub-s.  9,  of  the  Judicature  Act,  1873,  not 
being  applicable  to  such  actions.  Thorogood  v. 
Brvan  (8  C.  B.  115)  and  Armstrong  v.  Lan- 
cashire and  Yorkshire  Railway  (10  L.  R.  Ex. 
47)  overruled.  Mills  v.  Armstrong.  The  Ber- 
nina,  13  App.  Cas.  1 ;  67  L.  J.,  P.  65  ;  58  L.  T. 
423  ;  36  W.  R.  870  ;  62  J.  P.  212  ;  6  Asp.  M.  C. 
267— H.  L.  (B.) 

Liability  for  Injury  and  Death  caused  by 
Collision  at  Sea — Meaning  of  Words  "Loss  or 
Damage" — Passenger's  Tioket] — The  personal 
representatives  of  a  deceased  man  cannot  main- 
tain an  action  under  Lord  Campbell's  Act  (9  & 
10  Vict.  c.  93),  where  the  deceased,  if  he  had 
survived,  would  not  have  been  entitled  to  recover. 
The  defendants,  a  steamship  company,  issued  a 
passenger's  ticket,  which  contained  amongst 
others,  the  following  condition  : — "  The  com- 
pany will  not  be  responsible  for  any  loss, 
damage,  or  detention  of  luggage  under  any  cir- 
cumstances. .  .  .  The  company  will  not  be  re- 
sponsible for  the  maintenance  of  passengers,  or 
for  their  loss  of  time  or  any  consequence  arising 
therefrom  .  .  .  nor  for  any  delay  arising  out  of 
accidents ;  nor  from  any  loss  or  damage  arising 
from  the  perils  of  the  sea,  or  from  machinery, 
boilers,  or  steam,  or  from  any  act,  neglect  or 
default  whatsoever  of  the  pilot,  master  or 
mariner:" — Held,  that  the  words  "loss  or 
damage  arising  from  the  perils  of  the  sea,"  as 
contained  in  the  above  conditions,  exempted  the 
defendants  from  liability  for  injury  or  loss  of  life 
to  a  passenger  occasioned  on  the  voyage  by  the 
negligence  of  the  defendants'  servants.  Haigh  v. 
Royal  Mail  Steam  Packet  Company,  52  L.  J., 
Q.  B.  640 ;  49  L.  T.  802 ;  48  J.  P.  230 ;  5  Asp. 
M.  C.  189— C.  A. 

Conveyance  of  Passengers  by  Steamer— Cer- 
tificate— Persons  carried  Gratuitously.] — The 
Merchant  Shipping  Act,  1854,8. 303,  defines"  pas- 
senger "  as  including  any  person  carried  in  a 
steamship  other  than  the  master  and  crew,  and 
the  owner,  his  family  and  servants  ;  and  "  pas- 
senger steamer  "  as  including  every  British  steam- 
ship carrying  passengers  between  places  in  the 
United  Kingdom  ;  and  in  s.  318  provides  that  no 
passenger  steamer  shall  proceed  to  sea,  or  upon 
any  voyage  and  excursion  with  passengers  on 
board,  without  a  certificate  as  therein  prescribed, 
and  a  penalty  is  imposed  for  offending  against  the 
section.  The  Merchant  Shipping  Act  of  1876,  ex- 
empts from  these  provisions  steamships  carrying 
passengers  not  exceeding  twelve  in  number.  The 
owner  of  a  tug  steamer  called  the  "Flying 
Hawk,"  was  summoned  to  answer  a  complaint 
that  a  certain  passenger  steamship,  called  the 
"  Plying  Hawk,"  of  which  he  was  owner,  went 
to  sea  on  the  21st  July,  1882,  from  Dublin, 
with  more  than  twelve  passengers  on  board,  with- 
out any  Board  of  Trade  certificate,  and  without 
having  a  duplicate  of  such  certificate  put  up  in 
some  conspicuous  part  of  the  ship,  contrary  to  the 
provisions  of  the  17  &  18  Vict.  c.  104,  s.  318,  and 
the  39  &  40  Vict.  e.  80,  s.  16.  The  persons  on 
board  the  steamer  on  the  occasion  in  question, 
other  than  the  master  and  crew,  considerably  ex- 
ceeded twelve  in  number,  and  had  been  invited 
for  a  pleasure  trip  in  respect  of  which  none  of 
them  paid  anything.  The  magistrate  having  dis- 
missed the  summons ;  on  a  case  stated : — Held, 
that  the  magistrate,  if  he  believed  the  evidence, 


should  have  convicted  the  defendant  Kiddie  t. 
Kidston,  14  L.  R.,  Ir.  1 ;  15  Cox,  C.  a  379— 
Q.  B.  D. 

County  Court— Admiralty  Jurisdiction— Car- 
riage of  Passengers'  Luggage.]  —  Passengers' 
luggage  carried  on  board  a  ship  is  not "  goods" 
within  the  meaning  of  the  County  Courts  Ad- 
miralty Jurisdiction  Amendment  Act,  1869,  and 
consequently  the  Act  does  not  confer  jurisdiction 
to  try  a  claim  arising  out  of  the  loss  of  such 
luggage,  as  a  court  having  Admiralty  jurisdic- 
tion. Reg.  v.  City  of  London  Court  (Judge), 
12  Q.  B.  D.  115  ;  53  L.  J.,  Q.  B.  28  ;  51  L  T. 
197  ;  32  W.  R.  291 ;  5  Asp.  M.  C.  283— D. 


H.    BARGES. 

navigation— Watermen's  Act] — Under  the 
Thames  Conservancy  and  Watermen's  Acts,  and 
bye-laws  thereunder,  if  a  barge  under  weigh 
exceeds  50  tons,  there  must  be  two  qualified 
licensed  watermen  on  board,  and  one  is  not  suffi- 
cient though  assisted  by  another  unqualified 
man.    Perkins  v.  Gingell,  50  J.  P.  277— D. 

Assignment  of— Whether  Registration  re- 
quired.]— See  Qapp  v.  Bond,  post,  coL  1658. 


in. 


1.    PART-OWNERS. 

Jurisdiction— Admiralty  Court  Act,  1861.]— 

Quaere,  whether  s.  8.  of  the  Admiralty  Court  Act, 
1861,  giving  the  Admiralty  Court  jurisdiction  to 
decide  questions  between  co-owners,  is  not  con- 
fined to  questions  between  registered  co-ownen. 
The  Bonnie  Kate,  57  L.  T.  203 ;  6  Asp.  M.  C. 
149— Butt,  J. 

Powor  of  Sale  by  Court] — The  court 

will  not  exercise  the  power  of  sale  conferred  on 
it  by  24  Vict  c.  10,  s.  8  (2),  by  ordering-the  sale 
of  a  ship,  unless  a  part  owner — whether  he  be 
the  owner  of  a  minority  or  majority  of  shares- 
makes  out  a  very  strong  case.  Continued  and 
embittered  disagreements  between  two  part 
owners  were  held  not  to  constitute  sufficient 
reason  for  the  interference  of  the  court.  Tie 
Marion,  10  P.  D.  4 ;  54L.J..P.8;  51  L.T.906; 
33  W.  R.  432  ;  6  Asp.  M.  C.  339— Butt,  J. 


Transfer  of  Share- Bill  of  Bale.] — The 
ging  owners  of  the  steamship  **  B.  K."  in  1882 
agreed  to  sell  the  defendant  V.  one  sixty-fourth 
share  in  the  "  B.  K.,"  for  which  he  gave  them  a 
bill  of  exchange  for  156/.,  and  received  from 
them  a  receipt  tor  the  same  as  "  being  one  sixtr- 
fourth  share  in  the  s.s.  4B.  K.'M  In  1883  the 
managing  owners  sent  V.  82.  in  respect  of  profits 
on  his  share,  and  subsequently  sent  him  a  state- 
ment of  accounts.  No  bill  of  sale  was  ever 
executed  by  the  managing  owners,  and  it 
appeared  that  their  shares  in  the  "  B.  fcV'  were 
mortgaged  at  the  time  of  the  sale  to  V.,  and 
that  subsequently  they  never  were  in  a  position 
to  redeem  them.  Certain  of  the  owners  having 
paid  losses  incidental  to  the  working  of  the  ship, 
now  sued  V.  as  a  co-owner  for  his  proportion  of 
the  losses : — Held,  that,  notwithstanding  the 


1649 


SHIPPING— Owners. 


1660 


receipt  by  V.  of  the  8/.,  he  was  not,  either  in  law 
or  equity,  a  co-owner,  that  the  managing  owners 
had  no  authority  to  pledge  his  credit,  and  that 
therefore  he  was  not  liable.  The  Bonnie  Kate, 
infra. 

Charterparty  when  Binding.]— In  an  action 
of  restraint  it  appeared  that  the  plaintiffs,  a 
minority  of  the  co-owners,  had  given  notice  to 
the  managing  owner  that  they  declined  to  be 
hound  by  any  new  charterparty.  The  managing 
owner,,  who  had  been  appointed  manager  with 
the  sanction  of  the  plaintiffs,  had  on  the  day 
when  the  above  notice  was  given  to  him,  con- 
cluded an  arrangement  for  a  charterparty,  and 
had  himself  signed  the  charterparty,  though  it 
was  not  signed  by  the  charterers  till  some  days 
afterwards : — Held,  that  the  charterparty  was 
binding  on  the  plaintiffs.  The  Vindobala,  13 
P.  D.  42 ;  67  L.  J.,  P.  37  ;  58  L.  T.  363— Butt,  J. 
Serened  on  the  facts,  14  P.  D.  60  ;  68  L.  J.,  P. 
51 ;  60  L.  T.  667  ;  37  W.  B.  409—0.  A. 

liability  of  Purchaser.  J  —  A  purchaser  of 
shares  m  a  ship,  which  at  the  time  of  the  sale  is 
on  a  voyage,  is  liable  for  the  expenses  of  this 
voyage,  and  of  the  vessel's  outfit  for  it,  and  is 
entitled  to  a  share  of  the  freight.     lb. 

^—  Charter.] — A  vessel  was  chartered  fox 
twelve  months,  and  during  the  currency  of  the 
charter  the  charterers  made  default  in  certain 
payments  and  the  charter  lapsed.  The  vessel 
was  rechartered  by  a  voyage  cnarter  from  K.  to 
England.  During  the  performance  of  this 
voyage  the  defendant  purchased  a  share  in  this 
vessel :-— Held,  on  objection  to  the  registrar's 
report  in  a  co-ownership  action,  that  the  defen- 
dant was  not  liable  to  bear  any  of  the  losses 
occasioned  by  the  time  charter.  The  Meredith, 
infra. 

laatility  of  Trading  Owners.]— Part  owners 
who  do  not  dissent  from  the  employment  of  a 
ship,  and  are  aware  that  other  part  owners  have 
dissented,  are  liable  to  bear  the  expenses,  and  are 
entitled  to  receive  the  profits  of  the  ship  in  the 
proportion  which  their  shares  bear  to  the  number 
of  shares  in  the  ship,  after  the  deduction  of  the 
•hares  of  the  dissentient  part  owners.  The  Vin- 
Mofa,  supra. 


2.    MANAGING   OWNERS. 

iemuneration.]  —  A  part  owner  being  the 
manager  of  a  ship,  is  entitled  to  remuneration 
for  his  services,  but  there  is  no  fixed  rate  ap- 
plicable. The  Meredith,  or  White  v.  DitchfiAd, 
10  P.  D.  69  ;  62  L.  T.  520  ;  5  Asp.  M.  C.  400— 
Butt,  J. 

aeoeunta — Referenoe— Report — Stay  of  Exe- 
cution— Costs.] — A  managing  owner,  who  had 
not  delivered  accounts  for  nine  years,  instituted 
a  co-ownership  action  for  settlement  of  accounts, 
and  for  payment  of  the  balance  found  due  to 
him,  and  claimed  certain  items  in  respect  of 
materials  supplied  to  the  ship  for  which  he  had 
not  paid,  and  for  which  the  defendants  were 
being  sued  in  the  Queen's  Bench  Division.  The 
registrar  in  his  report  allowed  the  plaintiff  these 
Hems.  Upon  application  to  confirm  the  report, 
and  lor  judgment,  the  court  decreed  payment 


of  the  amount  found  due  by  the  registrar,  but 
stayed  execution  until  the  defendants  were 
protected  against  the  claims  in  the  Queen's 
bench  Division,  and  refused  the  plaintiff  the 
costs  of  the  action  upon  the  ground  of  delay  in 
rendering  his  accounts.  The  Charles  Jackson, 
52  L.  T.  631  ;  5  Asp.  M.  C.  399— Butt,  J. 


Objection  to  Report.] — Where  an  action 


is  instituted  in  an  Admiralty  District  Registry 
by  part  owners  of  a  ship  against  the  managing 
owner  for  an  account,  and  the  writ  claims  an 
account  under  Ord.  111.  r.  8,  and  an  order  for 
the  filing  of  the  accounts  is  made  under  Ord. 
XV.  r.  1,  and  the  account  is  proceeded  with 
pursuant  to  order,  and  the  district  registrar 
reports  thereon,  such  report  is  to  be  treated  as 
the  usual  report  in  an  Admiralty  Court  action, 
and  if  the  defendant  seeks  to  take  objection 
thereto,  he  must  do  so  according  to  the  pro- 
visions of  Ord.  LYI.  r.  11,  otherwise  the  plaintiff 
will  be  entitled  to  judgment  thereon.  Qowan 
v.  Sprott,  61  L.  T.  266;  6  Asp.  M.  C.  288— 
Butt,  J. 


Objecting  to — Extension  of  Time.] — The 


court  will  not  extend  the  time  for  objecting  to 
the  registrar's  report  in  a  co-ownership  action 
without  special  grounds  being  shown  by  the 
party  seeking  to  object.    lb. 

Payment  to — Misapplication  by  Him— Rights 
of  Owner  Paying.] — Where  a  part-owner  of  a 
ship  pays  to  the  managing  owner  his  contribu- 
tion due  upon  the  snip's  accounts  as  agreed 
between  the  co-owners,  the  managing  owner 
receives  such  contribution  as  agent  for  all  the 
owners  ;  and  in  the  event  of  the  managing 
owner  misapplying  such  payment  to  his  own 
use,  and  not  paying  the  ship's  accounts  there- 
with, the  contributing  owner  is  entitled  to  be 
credited  with  the  amount  so  paid,  but  all  the 
owners,  including  himself,  must  make  good  the 
defalcations  in  proportion  to  their  shares. 
The  Ida,  56  L.  T.  59 ;  6  Asp.  M.  C.  21— 
Butt,  J.  See  also  The  Dora  Tvlly,  post,  col. 
1653. 

Charges  given  by — Rights  of  Co-owners  — 
Mortgagee.]— &«  The  Faust,  post,  col.  1658. 

Authority  of  Master  to  Bind.]  —  See  reff.. 
post,  col.  1652. 

Duty  as  to  Cargo  on  Failure  of  Consignee  to 
take  Delivery.] — See  The  Clan  Maedonald,  post, 
col.  1669. 


3.  ACTIONS  OF  RESTRAINT. 

Bail,  who  can  obtain— Ship's  Husband.  ]— The 

plaintiff  and  all  the  other  owners  of  a  vessel 
appointed  two  persons  as  ship's  husbands  and 
managers  by  an  agreement,  which  stated  that 
they  should  be,  and  should  at  all  times  there- 
after discharge  the  duties  of,  ship's  husbands 
and  managers  of  the  said  vessel  and  of  agents 
for  the  owners,  their  executors  and  adminis- 
trators. The  agreement  also  gave  the  managers 
authority  to  perform  all  the  usual  duties  of 
ship's  husbands: — Held,  that  this  agreement 
did  not  debar  the  plaintiff  as  owner  of  two 
sixty-fourth  shares  in  the  ship  from  obtaining 


1651 


SHIPPING— Master  and  Seamen. 


1652 


in  an  action  of  restraint  bail  from  the  other 
part  owners  in  the  value  of  his  shares.  The 
England,  12  P.  D.  32 ;  56  L.  J.,  P.  115  ;  56 
L.  T.  896 ;  55  W.  R.  367 ;  6  Asp.  M.  C.  140— 
Hannen,  P. 

Bail  Bond.]  —  Where  the  defendants  in  an 
action  of  restraint  have  given  a  bond  for  the 
safe  return  of  the  ship  they  are  still  at  liberty 
to  dispute  the  plaintiff's  right  to  bring  the 
action,  and  the  court,  if  satisfied  that  the  plain- 
tiffs have  no  such  right,  will  set  aside  the  bond. 
The  Keroula,  11  P.  D.  92;  55  L.  J.,  P.  45  ; 
56  L.  T.  61  ;  85  W.  R.  60  ;  6  Asp.  M.  C.  23— 
Hannen,  P. 


Release  of  Sureties.] — In  an  action  of 


restraint  two  sureties  executed  a  bail  bond  for 
the  safe  return  of  the  ship.  No  time  was  fixed 
in  the  bond  at  which  the  liability  of  the  sureties 
should  cease.  After  the  bond  had  been  in 
existence  for  nearly  three  years,  and  when  the 
vessel  was  in  this  country,  and  the  owners  of  the 
majority  of  shares  were  changed,  the  sureties 
applied  to  be  released  from  the  bond : — Held, 
that  the  application  was  reasonable,  and  the  bond 
was  ordered  to  be  cancelled.  The  Vivienne,  12 
P.  D.  185  ;  56  L.  J.,  P.  107  ;  57  L.  T.  316 ;  36 
W.  R.  110  ;  6  Asp.  M.  C.  178— Butt,  J. 

How  long  it  Continues — Second  Aotion.] 

— Where  minority  owners  have  instituted  an 
action  of  restraint,  claiming  security  for  the 
safe  return  of  the  ship  to  a  named  port  within 
the  jurisdiction,  and  a  bond  is  given  by  the  defen- 
dants for  that  purpose,  such  bond  remains  in 
force  until  the  ship  returns  to  that  port,  and 
the  plaintiffs  are  not  entitled  to  institute  another 
action  for  further  security  upon  the  ship's  return 
to  another  port  within  the  jurisdiction,  and  if 
such  second  action  is  instituted,  it  will  be  dis- 
missed with  costs.  The  Regalia,  51  L.  T.  904 ; 
5  Asp.  M.  C.  338— Butt,  J. 

Form.] — In  an  action  of  restraint  the 

bail  bond  should  not  be  given  to  pay  what  may 
be  adjudged  against  the  defendant  in  an  action, 
but  simply  for  the  appraised  or  agreed  value  of 
the  plaintiffs  shares,  in  case  the  ship  does  not 
return  to  the  particular  port  named  in  the  bond. 
The  Robert  Dickinson,  10  P.  D.  15  ;  54  L.  J., 
P.  6  ;  52  L.  T.  55 ;  33  W.  R.  400 ;  5  Asp.  M.  C. 
341— Butt,  J. 


4.  LIABILITY  FOR  NECESSARIES. 

Lion  for.] — No  maritime  lien  attaches  to  a 
ship  in  respect  of  costs  or  other  necessaries 
supplied  to  it.  Laws  v.  Smith,  or  The  Rio  Tinto, 
9  App.  Cas.  356 ;  50  L.  T.  461  ;  5  Asp.  M.  C. 
224— P.  0. 

Aotion  in  rem — Time  of  Attachment  of 


Claim.] — The  lien  of  the  plaintiff  in  an  action 
in  rem  under  s.  4  of  the  Admiralty  Court  Act, 
1861,  takes  effect  from  the  moment  of  the  arrest 
of  the  ship.  Where,  therefore,  such  an  action 
was  commenced  against  a  vessel  belonging  to  a 
limited  company,  and  the  company  after  a  war- 
rant of  arrest  had  been  served  was  ordered  to  be 
wound  up  : — Held,  that  the  official  liquidator 
had  no  claim  to  the  proceeds  of  the  vessel  in  the 


hands  of  the  court  as  against  the  plaintiff.  The 
Cella,  13  P.  D.  82  ;  57  L.  J.,  P.  55 ;  59  L  T. 
125  ;  36  W.  R.  540 ;  6  Asp.  M.  C.  293— C.  A. 


Supplied  to  Foreign  Vessel  in  EngM 


Port]— The  statute  3  &  4  Vict  c  65,  s.  6,  does 
not  give  a  maritime  lien  in  respect  of  necessaries 
supplied  to  a  foreign  ship  in  an  English  port. 
Northcote  v.  Heinrich  Bj&rn  (Owners),  11  App. 
Cas.  270  ;  65  L.  J.,  P.  80  ;  65  L.  T.  66;  6 Asp. 
M.  C.  1— H.  L.  (E.).  Affirming  33  W.  R.  7W- 
C.  A. 

The  plaintiffs  advanced  to  the  part-owner  of 
a  foreign  ship  then  at  Liverpool  money  for 
necessaries  for  the  ship.  The  part-owner  having 
sold  his  interest  in  the  ship  to  the  defendant*, 
the  plaintiffs  brought  an  action  in  rem  for  the 
amount  of  the  advances  :—  Held,  that  the  action 
could  not  be  maintained.    lb. 


Priority  —  Mortgage  Action.]— A  cliim 


by  the  plaintiff  in  an  action  for  necessaries 
brought  under  s.  4  (or,  semble,  under  a.  5)  of 
the  Admiralty  Court  Act,  1861,  even  though 
it  includes  wages  paid  to  the  ship's  crew  at  the 
request  of  the  owner,  is  not  entitled  to  prece- 
dence of  a  mortgagee's  claim.  Semble,  prece- 
dence might  have  been  gained  by  obtaining 
prior  permission  from  the  court  to  make  the 
payment.  The  Lyons,  57  L.  T.  818  j  6  Asp.  M.  a 
199— Butt,  J. 


IV.    MASTER  AMD  8EAMEV. 

1.  MASTER. 

Duty  as  to  Repair.]— If  a  vessel  after  she 
has  started  on  her  voyage  receive  damage,  the 
master,  in  considering  what  steps  he  shall  tike 
in  regard  to  carrying  on  the  cargo  or  first  repair- 
ing the  ship,  is  bound  to  consider  not  one  indivi- 
dual interest,  but  the  interests  of  all  concerned; 
whether  it  be  to  return  to  his  port  of  loading 
and  repair,  or  repair  at  the  nearest  possible  place 
before  proceeding,  or  go  on  without  repairing; 
but  if  it  be  in  his  power  to  effect  the  repsin 
without  any  great  delay  or  expense  to  the 
interests  intrusted  to  his  charge,  it  is  his  duty  to 
repair  before  proceeding.  The  Rona,  51  L.  T.  38 ; 
5  Asp.  M.  C.  259— D. 

Authority  to  make  Salvage  Agreemsatfc]-- 

See  The  Renpor,  post,  col.  1707. 

Authority  to  make  Towage  Ajrreememti.]— 

Bee  Wellfield  (Owners')  v.  Adamson,  poet*  coL 
1712. 

Liability  of,  Error  in  Date  of  Bill  of  Laittg- 
Ship's  Brokers.]  —  The  mere  employment  of 
ship's  brokers  at  a  foreign  port  to  find  a  caigo 
for  a  ship  and  adjust  the  terms  upon  which 
it  is  earned  does  not  give  them  implied  power 
to  relieve  the  master,  when  he  signs  bills  of 
lading  presented  to  him,  from  the  duty  of 
seeing  that  the  dates  of  shipment  are  correctly 
stated  in  the  bills.  In  breach  of  that  duty  the 
master  is  liable  to  his  owners.  StuwMrt  v. 
Breen,  12  App.  Cas.  698  ;  66  L.  J.,  Q.  B.  401— 
H.  L.  (B.). 

Wages  and  Disbursements — if^^gt^g  (hmsr, 


1658 


SHIPPING— Master  and  Seamen. 


1654 


frtad  ofc}— A  master  on  his  appointment  agreed 
with  the  managing  owner  that  he,  the  master, 
should  find  the  provisions  for  the  officers  and 
crew  at  a  certain  rate  per  day.  The  master  sub- 
sequently agreed  with  the  managing  owner,  who 
was  also  a  ship's  store  dealer,  that  the  managing 
owner  should  supply  the  provisions  and  should 
charge  them  against  moneys  of  the  master  which 
he  held  in  his  hands.  The  managing  owner, 
however,  debited  his  co-owners  with  the  costs  of 
the  provisions,  and  fraudulently  applied  the 
master's  money  to  his  own  purposes  : — Held,  in 
an  action  in  rem  against  the  owners  by  the 
master  to  recover  wages  and  disbursements,  that 
the  master  was  entitled  to  credit  for  such  an 
amount  in  the  settlement  of  his  accounts  with 
the  owners,  the  fraudulent  application  of  his 
money  by  the  managing  owner  being  a  wrong 
done  to  the  co-owners  for  which  he  was  not 
responsible.  The  Bora  Tully,  64  L.  T.  467  ;  5 
Asp.  M.  C.  550— Hannen,  P. 

Action    in   rem.] — A  master  who   has 

incurred  liabilities  in  respect  of  necessaries  for 
the  ship  can  maintain  an  action  in  rem  for 
"disbursements,"  though  he  has  made  no  pay- 
ment in  respect  of  such  liabilities  at  the  time 
the  action  is  brought.  The  Feronia  (2  L.  K., 
Adm.  65)  and  The  Fairport  (8  P.  D.  48) 
approved ;  Tlte  Chieftain  (Br.  k  L.  104)  and 
The  Edwin  (Br.  &  L.  281)  overruled.  The  Sara, 
infra. 

lien.] — Under  the  Admiralty  Court  Act, 

1861,  g.  10,  and  the  Merchant  Shipping  Act, 
1854,  s.  191,  the  master  has  a  maritime  lien  on 
the  ship  for  disbursements.  The  Mary  Ann 
0  L.  R.,  Adm.  8)  and  The  Glentanner  (Swa. 
415)  approved.  The  Sara,  12  P.  D.  158 ;  66 
L.  J.,  P.  160  ;  57  L.  T.  328  ;  35  W.  R.  826  ; 
*  Asp.  M.  C.  163— C.  A.  Reversed  14  App.  Cas. 
209-H.  L.  (E.). 

Quaere,  has  a  master  under  s.  10  of  the 
Admiralty  Court  Act,  1861,  a  maritime  lien 
for  his  wages  and  disbursements  ?  The  Beeswing, 
infra. 

Priority  of  lien.]— Under  the  Admiralty 

Court  Act,  1861,  s.  6,  the  master  of  a  ship  has  a 
maritime  lien  on  it  for  disbursements,  and  his 
daim  has  priority  over  that  of  a  purchaser. 
The  Mary  Ann  (1  L.  R.,  Adm.  8)  followed. 
The  Ringdove,  11  P.  D.  120  ;  55  L.  J.,  P.  56  ; 
55  L.  T.  552  ;  34  W.  R.  744  ;  6  Asp.  M.  C.  28— 
Hannen,  P. 

Maritime  Lien  — Bight  against  Ship- 
owners or  Charterers— Authority.]— Where  a 
ahip  is  chartered  under  a  charter  providing  that 
the  master  shall  be  appointed  by  the  charterers, 
that  the  owners  are  to  provide  and  pay  for  all 
provisions  and  wages  of  captain  and  crew,  and 
for  the  necessary  equipment  and  efficient  working 
of  the  ship,  that  the  captain  is  to  be  dismissed 
oy  the  ownen  if  he  fails  to  give  satisfaction,  and 
that  the  charterers  shall  provide  and  pay  for  all 
wals,  pilotages,  port  charges,  &c,  the  master  is 
the  servant  of  the  shipowners,  and  hence  he  has 
a  right  in  rem  for  his  wages  and  such  disburse- 
ments as  are  necessary  for  the  navigation  of  the 
ship,  and  which  the  charterers  had  not  by  the 
provisions  of  the  charterparty  undertaken  to 
Pjy ;  and  semble,  per  Lord  Bsher,  M.R.,  if  the 
charterers  had  refused  to  make  these  disburse- 


ments, and  without  them  the  ship  could  not  be 
navigated,  the  master  would  be  entitled  to 
charge  them  against  the  shipowners.  Semble, 
where  the  master  is  the  servant  of  the  charterers 
and  not  of  the  shipowners,  he  has  no  right 
against  the  owners  in  respect  of  wages  and  dis- 
bursements. The  Beeswing,  53  L.  T.  554  ;  5  Asp. 
M.  C.  484— C.  A. 

By  charterparty  it  was  agreed  that  the  owners 
of  the  ship  should  provide  and  pay  for  provisions 
and  wages,  and  that  the  charterer  should  provide 
and  pay  for  coals  and  other  expenses.  The 
master  was  to  be  appointed  by  and  was  to  follow 
the  instructions  of  the  charterer.  The  master, 
with  notice  of  the  charterparty,  ordered  and 
made  himself  liable  for  provisions  and  coals  for 
the  vessel  at  a  foreign  port.  These  provisions 
and  coals  were  necessary  to  enable  the  vessel  to 
perform  her  voyage  : — Held,  in  an  action  by  the 
master  against  the  vessel,  that  he  was  entitled 
to  recover  for  the  provisions  but  not  for  the 
coals,  as  by  the  terms  of  the  charterparty  he 
had  no  power  to  pledge  the  owner's  credit  in 
respect  of  them.  The  Turgot,  11  P.  D.  21  ;  54 
L.  T.  276 ;  34  W.  R.  562 ;'  5  Asp.  M.  C.  548— 
Hannen,  P. 


Agreement  with  Owners — Lost  of  Lien 


— Non-payment.  ] — A  master,  who  after  receiving 
a  portion  of  his  wages  from  the  managing 
owners,  elects  to  allow  the  balance  to  remain  in 
their  hands  at  interest,  by  so  doing  loses  his 
lien,  and  cannot  recover  the  balance  in  rem,  bat 
if  he  has  had  no  opportunity  of  receiving  his 
wages,  or  has  been  refused  payment  of  them  on 
demand,  the  mere  fact  of  his  allowing  them  to 
remain  in  the  managing  owner's  hands  after 
they  become  due  will  not  deprive  him  of  his 
remedy.  The  Rainbow,  53  L.  T.  91  ;  5  Asp.  M.  C. 
479— Butt,  J. 

Where  shipowners,  in  answer  to  a  claim  for 
wages,  plead  an  agreement  between  the  manag- 
ing owner  and  the  plaintiff,  that  the  plaintiff 
shall,  instead  of  receiving  his  wages,  allow  it  to 
remain  in  the  hands  of  the  managing  owner,  and 
has  thereby  foregone  his  right  against  the  ship, 
the  onus  is  upon  the  defendants  to  clearly  prove 
that  there  was  an  express  arrangement  to  that 
effect,  before  the  court  will  deprive  the  plaintiff 
of  his  right.    lb. 

Wages  —  Xisoonduct — Mortgage.  ]— A  mort- 
gagee took  possession  of  a  ship  by  putting  a  man 
on  board  and  giving  notice  to  the  master.  The 
latter,  by  order  of  the  mortgagor,  took  the  vessel 
to  sea  with  the  man  in  possession  on  board.  In 
an  action  by  the  master  for  wages,  and  for  com- 
pensation for  wrongful  dismissal,  the  registrar 
awarded  him  a  sum  as  compensation,  being  the 
amount  of  wages  payable  for  two  months  after 
the  mortgagee  took  possession: — Held,  on  appeal, 
that  the  master  bad  been  guilty  of  misconduct 
in  taking  the  vessel  to  sea,  and  could  not  as 
against  the  mortgagee  be  properly  awarded  any 
sum  as  compensation  for  wrongful  dismissal. 
The  Fairport,  10  P.  D.  13  ;  54  L.  J.,  P.  3  ;  62 
L.  T.  62 ;  33  W.  R.  448 ;  5  Asp.  M.  C.  348— 
Butt,  J. 

Bight  to  Wages  up  to  Final  Settlement  of 
Claim.] — A  master  is  not  entitled  under  the 
Merchant  Seamen  (Payment  of  Wages)  Act, 
1880,  s.  4,  to  wages  up  to  the  final  settlement  of 
his  claim.    TheArina,  12  P.  D.  118  ;  56  L.  J.,  P. 


1655 


SHIPPING— Master  and  Seamen. 


1656 


67  ;  67  L.  T.  121  ;  35  W.  R.  654  :  6  Asp.  M.  C. 
141— D. 

Bight  to  Ten  Dayi'  Double  Pay.]— A  master 
is  not  entitled  under  ss.  187  &  191  of  the  Mer- 
chant Shipping  Act,  1854,  to  the  doable  pay  for 
delay  in  the  payment  of  wages  recoverable  by 
"  seamen "  under  the  former  section.  The 
Princes*  Helena  (Lush.  190)  overruled.    lb. 

Sufficient  Cause.] — Where,  in  an  action  for 

master's  wages,  it  appears  that,  at  the  institution 
of  the  suit,  accounts  are  outstanding  between 
the  owners  and  the  plaintiff,  and  that  the  same 
have  not  been  taken  or  settled,  and  that  within 
two  days  of  the  institution  of  the  suit  the  wages 
are  paid,  the  owners  have  not  refused  to  pay 
"  without  sufficient  cause "  within  the  meaning 
of  s.  187  of  the  Merchant  Shipping  Act,  1854, 
and  therefore  the  plaintiff  is  not  entitled  to 
recover  ten  days'  double  pay.  The  Turgot, 
supra. 

Under  the  provisions  of  s.  187  of  the  Merchant 
Shipping  Act,  1854,  and  s.  4  of  the  Merchant 
Shipping  Act,  1880,  as  to  non-payment  of  wages, 
the  right  to  recover  ten  days'  double  pay  and 
wages  to  the  time  of  final  settlement  is  not  en- 
forceable where  there  is  a  bond  fide  question  as 
to  liability.  The  Rainbow,  53  L.  T.  91 ;  5  Asp. 
M.  C.  479— Butt,  J. 


2.    SEAMEN. 

Expenses  of  Sending  Home — Solicitor's  Lien 
— Priority.]  —  Solicitors  for  defendants  in  a 
salvage  action  against  a  foreign  ship,  who  are 
entitled  to  a  charge  upon  the  ship,  or  the  pro- 
ceeds thereof,  for  their  costs  and  expenses  in- 
curred in  the  preservation  of  the  property,  do 
not  take  priority  of  the  claim  of  the  foreign 
government,  who,  on  the  abandonment  of  the 
ship  by  her  owners,  are  entitled,  by  the  pro- 
visions of  their  code,  to  a  lien  upon  the  ship,  or 
the  proceeds,  for  the  expenses  of  Bending  back 
the  ship's  crew  to  their  own  country.  An  Italian 
ship  was  brought  into  a  British  port  by  salvors. 
A  salvage  action  having  been  instituted,  the  ship 
was  sold  by  order  of  the  court,  and  a  sum  was 
awarded  out  of  the  proceeds  to  the  salvors. 
After  payment  of  that  sum,  and  the  costs  of  the 
plaintiffs,  a  balance  of  60J.  10*.  3d.  remained  in 
court.  The  defendants'  solicitors  had  incurred 
expenses  in  pumping  the  ship,  paying  the 
marshal's  possession  fees,  &c.,  and  claimed  a 
charging  order  upon  the  sum  in  court  for  such  ex- 
penses, and  sought  payment  out  of  such  balance 
to  them.  The  Italian  Government,  through  their 
consul  in  this  country,  had  sent  home  the  crew 
of  the  ship,  and  had  incurred  expenses  by  so 
doing.  By  Italian  law  such  last-mentioned 
expenses  are  a  lien  upon  the  ship.  The  Italian 
consul  opposed  payment  out  to  the  defendants' 
solicitors,  and  claimed  priority  for  the  lien  of 
the  Italian  Government : — Held,  that  the  Italian 
Government  was  entitled  to  such  priority.  The 
Livietta,  8  P.  D.  209  ;  52  L.  J.,  P.  81  ;  49  L.  T. 
411 ;  5  Asp.  M.  C.  151 — Hannen,  P. 

Wages —Action  for —Tics-Admiralty  Juris- 
diotion.]— See  The  Ferret,  post,  col.  1721. 


"  Dispute  as  to  Liability  "  — Counter- 
claim.]— A  counterclaim  in  respect  of  a  separate 


cause  of  action  is  not "  a  reasonable  dispute  ss 
to  liability  "  within  the  meaning  of  s.  4,  sub*  4, 
of  the  Merchant  Seamen  (Payment  of  Wages) 
Act,  1880.  Belaroqne  v.  Oxenholme  Steawkip 
Company,  1  C.  &  E.  122— Stephen,  J. 


Priority  of  Claims.]— The  owners  of  a 


vessel  who  have  recovered  judgment  against 
another  ship  in  an  action  for  damage  by  collision 
have  a  prior  right  against  the  proceeds  of  such 
ship  to  seamen  who  have  recovered  judgment 
against  the  same  ship  for  wages  earned  before 
and  after  the  collision.  The  Elin,  8  P.  D.  l» ; 
62  L.  J.,  P.  65  ;  49  L.  T.  87  ;  31  W.  R. 736;  5 
Asp.  M.  C.  120— C.  A. 

Mariners  have  priority  for  wages  over  pawns 
with  a  possessory  common  law  lien  up  to  the 
time  of  the  beginning  of  such  lien,  and  they  axe 
entitled  to  subsistence  money  from  the  time  they 
leave  the  ship  to  the  time  they  return  home; 
this  and  the  expenses  of  the  journey  home,  and 
the  costs  of  the  action,  iank  with  their  prior 
wages.  The  Immacolata  Coneezione,  9  P.  D.  37 ; 
53  L.  J.,  P.  19  ;  50  L.  T.  539  ;  32  W.  B.  706; 
5  Asp.  M.  C.  208— Butt,  J. 

The  lien  of  seamen  for  wages  ranks  before  a 
claim  in  respect  of  payments  for  the  towage  of 
the  ship  from  sea  to  an  inland  port,  and  the 
light  dues  and  dock  dues.  The  Andalma,  IS 
P.  D.  1  ;  56  L.  T.  171  ;  35  W.  R.  336 ;  6  asp. 
M.  C.  62— Butt,  J. 


Lien  for— Foreign-going  Ship— Yoyaga 


not  Proceeded  upon.] — Seamen  engaged  by  the 
owners  or  their  agent  for  a  voyage  upon  a 
foreign-going  ship,  which  does  not  proceed  upon 
the  voyage,  are  entitled  to  a  lien  for  their  wages 
upon  the  ship,  and  the  proceeds  of  sale  thereof, 
although  the  engagement  of  the  seamen  has  not 
been  in  writing.  Great  Eastern  Steamtkif 
Company,  In  re,  William**  Claim,  53  L.  T.  6W ; 
5  Asp.  M.  C.  511— Chitty,  J. 

lien  on  Freight— BuTMJtoarteT.]— Seamen 

have  a  maritime  lien  on  freight  due  from  sob- 
charterers  to  the  charterers  of  a  ship,  and  can 
arrest  the  cargo  for  the  purpose  of  enforcing 
such  lien.    The  Andalina,  supra. 

Agreement  for  Service — Breaeh  by  Shipowner 
— Damages.] — In  an  action  by  a  seaman  for 
breach  of  the  stipulations  in  his  agreement  for 
service,  the  court,  in  addition  to  the  compensa- 
tion provided  by  the  Merchant  Shipping  Act, 
1854,  can  award  general  damages  for  breach  of 
the  agreement,  and  for  hardships  incurred  by 
the  seaman  through  the  vessel  being  employed 
for  purposes  other  than  those  contemplated  by 
the  agreement.  The  Jvstitia,  12  P.  D.  145 ;  56 
L.  J.,  P.  Ill  ;  57  L.  T.  816  ;  6  Asp.  M.  C.  1»- 
Hannen,  P. 

Supplying,  without  Iioonoe  —  Sfttenet  — 
Onus  of  Proof  of  License   on   Defendant]— 

A  defendant  having  been  charged  under  the 
147th  section  of  the  Merchant  Shipping  Ad, 
1854,  with  supplying  a  seaman  to  a  merchant 
ship  in  the  United  Kingdom,  he  not  being 
a  person  holding  a  licence  from  the  Board 
of  Trade  for  that  purpose : — Held,  on  a  case 
stated,  that  proof  having  been  given  of  the  Ap- 
ply of  the  seaman  by  the  defendant,  the  onus  of 
proving  that  he  held  a  licence  from  the  Board  of 
Trade  rested  with  him.    Beg.  v.  JohmeUm,  55 


1667 


SHIPPING — Sale  and  Mortgage — Bills  of  Lading. 


1658 


L.  T.  265  ;  61  J.  P.  22 ;  16  Cox,  C.  0.  221  ;  6 
Asp.  M.  C.  14— D. 

Refusal  to  give  Certificate  of  Discharge — 
Penalty.] — An  action  will  not  lie  for  the  refusal 
to  give  to  a  seaman  the  certificate  of  discharge 
directed  to  be  given  by  the  172nd  section  of  the 
Merchant  Shipping  Act,  1854,  the  only  remedy 
for  such  refusal  being  the  penalty  provided  by 
that  section.  Vallanoe  v.  Falle,  13  Q.  B.  D. 
109  ;  63  L.  J.,  Q.  B.  459 ;  61  L.  T.  158  ;  32 
W.  B.  769  ;  48  J.  P.  519 ;  5  Asp.  M.  C.  280— D. 


V.    BALE   A1TD   MORTGAGE. 
1.  SALE. 

Sale  by  Court— At  initanoe  of  Part  Owners.] 
See  The  Marion,  ante,  col.  1648. 

Sale  of  Ships  by  Court.]— See  post,  XVIII.  8. 

2.  MORTGAGE. 

Aotion  to  Realise  Security— Costs— Material 
Man.] — Where  a  mortgagee  brings  an  action  to 
realise  his  security,  and  material  men  with  a 
common  law  possessory  lien  on  the  ship  inter- 
vene, and  the  ship,  by  order  of  the  court,  is  sold, 
and  the  proceeds  are  only  sufficient  to  satisfy 
the  claim  of  the  material  men,  the  mortgagee  is 
still  entitled  to  be  paid  his  taxed  costs,  up  to  the 
date  of  the  sale,  out  of  the  proceeds  of  the  sale 
of  the  ship  in  priority  to  the  material  men. 
The  Sherbro,  52  L.  J.,  P.  28 ;  48  L.  T.  767 ;  6 
Asp.  M.  C.  88— Sir  B.  Phillimore. 

Mortgagee  in  Possession— Bight  to  Freight.] 
— In  October,  1883,  W.  mortgaged  to  the  plain- 
tifEs  certain  shares  in  a  ship.  Subsequently  W., 
who  was  captain  and  ship's  husband  of  the  ship, 
incurred  liabilities  to  the  defendants  for  goods 
supplied  to  and  disbursements  made  for  the  ship, 
In  March.  1886,  the  ship  was  chartered  for  a 
voyage  from  Montreal  to  Liverpool,  the  freight 
being  payable  one-third  at  Quebec  and  two- 
thirds  on  right  delivery  of  the  cargo  in  Liver- 
pool. Immediately  upon  arrival  of  the  ship  in 
Liverpool,  the  plaintiffs  took  possession  and  gave 
notice  to  the  owners  of  the  cargo  to  pay  the 
freight  to  them.  The  defendants  afterwards 
obtained  judgment  against  W.,  and  obtained 
garnishee  orders  upon  the  receivers  of  the  cargo 
attaching  the  freight  due  from  them : — Held, 
that  the  defendants  had  no  right  to  the  freight 
as  against  the  plaintiffs.  Japp  v.  Campbell,  67 
I*  J-,  Q.  B.  79— A.  L.  Smith,  J. 


of  Ship.  ]— Where  the  regis- 
tered mortgagees  of  a  ship  instituted  an  aotion 
in  rem  as  mortgagees  for  possession,  and  the  ship 
was  arrested  therein  before  the  mortgage  money 
became  due,  and  without  any  default  on  the  part 
of  the  mortgagor,  the  court,  being  of  opinion 
upon  the  fact  that  the  ship  was  not  being  dealt 
with  ao  as  to  impair  the  mortgagee's  security, 
ordered  her  release.  The  Blanche,  58  L.  T.  592 ; 
6  Asp.  M.  C.  272— Butt,  J. 

Hailing  Boats — Nets  not  "Appurtenances."] 
— In  a  case  where  certain  fishing  boats  had  been 
mortgaged  by  the  bankrupts,  and  the  mortgagees 


laid  claim  to  the  nets  and  the  fishing  gear  which 
had  been  used  on  board  the  said  vessels  (but  of 
which  no  particular  nets  were  appropriated  to  or 
specially  belonging  to  any  particular  vessel)  on 
the  ground  that  such  nets  and  fishing  gear  came 
within  the  word "  ship  "  in  s.  72  of  the  Merchant 
Shipping  Act,  1854,  and  the  word  "appurte- 
nances "  in  the  form  of  mortgage  of  a  ship  now 
in  use  and  substituted  for  Form  I.  given  in  the 
Merchant  Shipping  Act,  1854  : — Held,  that  in 
order  to  make  a  thing  an  appurtenance  it  must 
be  specified  ;  that  in  the  present  case  there  was 
no  evidence  to  show  that  any  specific  nets  were 
appropriated  to  any  particular  ship,  but  that  they 
were  used  indiscriminately,  and  that  they  could 
not  in  consequence  be  considered  "appurte- 
nances "  within  the  meaning  of  the  act.  Gould, 
Em  parte,  Salmon,  In  re,  2M.B.B.  187— D. 

Master  taking  Man  in  Possession  to  Sea— 
Wages.]— See  The  Fairport,  ante,  col.  1654. 

Mortgage  Action  —  Charge  by  Managing 
Owner — Appointment  of  Receiver — Bights  of 
Co-owners.] — In  an  action  in  personam  by  a 
plaintiff  claiming  to  be  equitable  mortgagee  of 
the  foreign  ship  F.  and  her  freight,  to  secure  a 
liability  incurred  by  him  in  accepting  bills  of 
exchange  which  had  been  drawn  by  the  managing 
owner,  it  appeared  that  the  alleged  mortgage 
was  given  to  the  plaintiff  by  the  managing 
owner ;  that  the  plaintiff,  when  he  accepted  the 
bills,  thought  the  managing  owner  was  sole 
owner,  and  that  it  was  subsequently  sworn  on 
affidavit  that  the  managing  owner  was  only  a 
part  owner,  but  it  did  not  appear  whether  the 
amount  of  the  bills  was  in  fact  expended  on  the 
purposes  of  the  ship.  The  F.  was  in  an  English 
port  under  charter  to  carry  cargo  to  a  foreign 
port,  when,  on  application  by  the  plaintiff,  an 
order  was  made  appointing  a  receiver  and 
authorising  him  to  proceed  with  the  ship  to 
the  foreign  port  and  there  receive  the  ship  and 
all  the  freight  due  upon  the  voyage.  The  defen- 
dants appealed : — Held,  that,  even  assuming  the 
managing  owner  to  be  only  a  part  owner,  yet 
that,  as  it  did  not  appear  that  the  amount  of  the 
bills  was  not  expended  solely  for  the  purposes  of 
the  ship,  the  court  had  authority  to  appoint  a 
receiver  to  receive  the  whole  of  the  freight, 
and  that,  in  the  circumstances,  it  was  expedient 
that  the  order  should  stand.  Burn  v.  Herlofton, 
or  The  Faust,  56  L.  T.  722  ;  6  Asp.  M.  C.  126— 
CA. 

Assignment  of  Ship  or  Vessel— Dumb  Barge — 
Bill  of  Sale.] — A  dumb  barge,  propelled  by  oars, 
plying  on  the  River  Thames  and  carrying  goods, 
wares,  and  merchandise  (without  passengers)  is  a 
vessel  within  the  exception  of  the  Bills  of  Sale 
Acts,  1878  and  1882,  which  excepts  from  registra- 
tion as  a  bill  of  sale  transfers  or  assignments  of 
a  ship  or  vessel  or  any  share  thereof.  Qapp  v. 
Bond,  18  Q.  B.  D.  200  ;  56  L.  J.,  Q.  B.  438  ;  67 
L.  T.  437  ;  35  W.  R.  683— C.  A. 


VI.    BILLS    OF    LADIHCh 

1.    FORM    OF. 

Dato  of  Shipment  wrongly  stated—liability 
of  Master — Authority  of  Ship's  Brokers.] — 
Ship's  brokers  at  a   foreign  port  have  not,  as 


1659 


SHIPPING— Bills  of  Lading. 


1660 


such,  authority  to  relieve  the  captain  from  the 
duty  of  seeing  to  the  accuracy  of  statements 
contained  in  bills  of  lading  which  they  present 
to  him  for  signature.  Stumore  v.  Breen,  12  App. 
Cas.  698  ;  56  L.  J.,  Q.  B.  401— H.  L.  (E.) 

"  Shipped  on  Board  "—Goods  Floated  to  Ship.] 

— Timber  sleepers  were  floated  alongside  a  vessel 
on  rafts  and  there  delivered  to  the  mate,  who 
gave  a  receipt  for  them  : — Held,  that  the  goods 
were  not "  shipped  on  board"  within  the  meaning 
of  a  bill  of  lading.  Thorman  v.  Burt,  1  C.  &  E. 
596 — Grove,  J. 


2.    EFFECT    OF. 

Shipowner  Estopped  from  denying  that 
Contract  made  with  him.] — A  company  owned 
a  line  of  steamers  called  the  "  Monarch  Line," 
running  between  New  York  and  London.  A. 
was  in  the  habit  of  shipping  goods  on  steamers 
running  on  this  line.  A.  shipped  goods  on  a 
steamer  at  New  York  and  received  a  bill  of  lading 
made  out  in  the  ordinary  form  given  by  the 
company  for  goods  shipped  on  their  steamers, 
save  that  it  had  the  words  ''extra  steamer" 
added  after  the  words  "  Monarch  Line  of  Steam- 
ships." At  London  an  overside  release  for  the 
goods  was  signed  and  given  by  the  company's 
agent  to  A.,  and  the  freight  received  by  them 
from  A. : — Held,  in  an  action  by  A.  against  the 
company  for  non-delivery  of  the  goods  that  the 
company  were  estopped  from  saying  that  the 
contract  of  shipment  was  not  made  with  them. 
Herman  v.  Royal  Exchange  Shipping  Company, 
1  C.  &  E.  413— Huddleston,  B.  Affirmed  in  0.  A. 

Beading  with  Charterparty.] — See  post,  col. 
1665. 

Whether  conclusive  ai  to  amount  Shipped.] 

— A  charterparty  provided  that  the  bill  of  lading 
should  be  conclusive  evidence  against  the  owners 
of  the  quantity  of  cargo  received.  The  cargo 
(timber)  was  floated  alongside  the  vessel,  and 
receipts  by  the  mate  were  then  given  for  the  same. 
Part  of  the  cargo  was  lost  by  perils  of  the  sea 
before  shipment.  The  loss  was  notified  by  the 
master  to  the  agent  of  the  charterer,  but,  at  the 
latter's  request,  the  master  was  induced  to  sign 
bills  of  lading  for  the  whole  quantity  received 
alongside : — Held,  that  the  charterer  had  no 
claim  against  the  shipowners  in  respect  of  the 
difference  between  the  amount  of  cargo  received 
alongside,  and  the  amount  shipped  on  board. 
Pyman  v.  Burt,  1  0.  &  E.  207— Hawkins,  J. 

The  defendants  chartered  the  plaintiff's  ship 
for  the  carriage  of  a  cargo  of  timber  from  Memel. 
The  charterparty  provided  that  the  ship  should 
there  load  from  the  agents  of  the  said  affreighters 
as  customary  a  fall  cargo  of  fir  sleepers,  that 
the  cargo  should  be  brought  to  and  taken  from 
alongside  the  ship  at  merchants1  risk  and  expense, 
and  that  the  bill  of  lading  should  be  conclusive 
evidence  against  the  owners  of  the  quantity  of 
cargo  received  as  stated  therein.  There  was  a 
custom  at  Memel,  which,  however,  did  not  apply 
to  charterparties  in  the  form  of  the  above- 
mentioned  charterparty,  that  the  captain  should 
take  delivery  of  the  timber  to  be  shipped  at 
timber  ponds  up  the  river  at  some  distance  from 
the  ship,  the  timber  being  then  rafted  down  by 
fishermen  to  the  ship,  but  being  at  the  ship- 


owner's risk  during  the  process.    The  captain  of 
the  plaintiff's  ship,  on  her  arrival  at  Memel,  not 
being  aware  of  the  provisions  of  the  charter- 
party,  allowed  the  mate  to  give  receipts  for  the 
cargo  at  the  timber  ponds.    Part  of  the  timber 
included  in  such  receipts  was  lost  daring  the 
process  of  rafting  the  timber  down  to  the  ship, 
owing  to  the  force  of  the  current.    The  captain, 
having  become  aware  of  such  loss  and  of  the 
provisions  of  the  charterparty,  stated  to  the  agent 
at  Memel  of  the  shippers,  who  had  sold  the 
timber  to  the  defendants,  that  he  did  not  see  his 
way  to  signing  clean  bills  of  lading  for  the  full 
quantity  mentioned  in  the  mate's  receipt,  a  por- 
tion of  the  timber  having  been  lost ;  bat,  on 
being  told  by  such  agent  and  a  clerk  of  the  ship's 
brokers  that  he  was  bound  to  sign  clean  bills  of 
lading  for  the  full  quantity,  he  did  so.    The  bills 
of  lading  stated  that  such  quantity  was  shipped 
in  good  order  and  well  conditioned  to  be  delivered 
on  payment  of  freight  and  all  other  conditions 
as  per  charterparty.    In  an  action  for  balance  of 
chartered  freight  the  defendants  counterclaim*! 
in  respect  of  short  delivery  of  cargo:— Held, 
that  the  bills  of  lading  estopped  the  plaintiff 
from  denying  that  the  full  amount  of  cargo  stated 
therein  was  shipped.     Lithman  v.  CkrUUe,  19 
Q.  B.  D.  383  ;  56  L.  J.,  Q.  B.  538 ;  57  L  T. 552; 
35  W.  R.  744  ;  6  Asp.  M.  C.  186-C.  A. 

8ignatureofMaster,sAgent]—Toan  action 


for  freight  by  a  shipowner  against  the  indorsees 
of  the  bill  of  lading,  the  defendants  counter- 
claimed  in  respect  of  short  delivery.  All  the 
goods  that  were  actually  put  on  board  had  been 
delivered  to  them  ;  but  the  bill  of  lading  ac- 
knowledged the  receipt  of  a  larger  quantity.  All 
the  goods  mentioned  in  the  bill  of  lading  had 
been  floated  alongside  the  ship  in  rafts,  and 
mate's  receipts  given  for  them ;  but  some  of  them 
were  lost  before  they  were  shipped.  The  bill  of 
lading  was  signed,  "  By  authority  of  the  captain. 
Wilh.  Ganswindt  as  agent."  Ganswindt  was  the 
ship's  broker  at  the  shipping  port :— Held,  that 
apart  from  the  Bills  of  Lading  Act,  a  bill  of 
lading  is  not  conclusive  against  a  shipowner,  and 
he  is  not  liable  in  respect  of  any  goods  not 
actually  shipped  ;  and  that  in  the  present  case, 
he  was  not  liable  under  that  act,  as  the  bill  of 
lading  was  not  signed  by  or  for  him.  Tktrw* 
v.  Burt,  64  L.  T.  349  ;  6  Asp.  M.  C.  563-C.  A 


3.    EXCEPTIONS    FROM    LIABILITY. 

Perils  of  the  8ea— Evidence  to  varyTsmi- 
Deviation.] — The  plaintiffa  having  purchased 
goods  to  be  shipped:  from  a  foreign  port  on  the 
terms  that  payment  of  the  price  was  to  be  made 
in  exchange  for  shipping  documents,  the  bill  of 
lading  signed  upon  the  shipment  of  the  goods  was, 
upon  payment  of  the  price,  indorsed  to  them. 
The  bill  of  lading,  which  contained  the  usual 
exception  of  sea  perils,  stated  that  the  goods  were 
shipped  for  delivery  at  Dunkirk  on  board  a  vessel 
lying  at  Fiume  and  bound  for  Dunkirk,  with 
liberty  to  call  at  any  ports  in  any  order.  The 
ship,  instead  of  proceeding  direct  for  Dunkirk, 
sailed  for  Glasgow,  and  was  lost,  with  her  cargo, 
off  the  mouth  of  the  Clyde,  by  perils  of  the  sea. 
In  an  action  brought  by  the  plaintiffs  against 
the  shipowners  for  nondelivery  of  the  goods, 
evidence  was  given  to  show  that  the  shippers  of 
the  goods,  at  the  time  when  the  bill  of  lading 


1661 


SHIPPING— Bill*  of  Lading. 


1662 


was  given,  knew  that  the  vessel  was  intended 
to  proceed  via  Glasgow  : — Held,  that  such 
evidence  was  not  admissible  to  vary  the  terms 
of  the  bill  of  lading,  which  imported  a  voyage 
direct  from  Fiume  to  Dunkirk,  subject  to  the 
liberty  to  call  at  any  ports  of  call  substantially 
within  the  course  of  such  voyage ;  that  Glasgow. 
being  altogether  out  of  the  course  of  such  voyage, 
was  not  such  a  port ;  and  that  the  vessel  was 
therefore  lost  while  deviating  from  the  voyage 
contracted  for,  and  the  excepted  perils  clause 
did  not  exonerate  the  defendants  from  liability 
in  respect  of  non-delivery  of  the  goods.  Leduc 
v.  Ward,  20  Q.  B.  D.  475  ;  57  L.  J.,  Q.  B.  379  : 
58  L.  T.  908  ;  36  W.  B.  537— C.  A. 

Collision  —  Hegligenoe.]  —  Foundering 

caused  by  collision  with  another  vessel  is  within 
the  exception  "  dangers  and  accidents  of  the  sea  " 
in  a  bill  of  lading  ;  and  excuses  the  shipowner 
for  non-delivery  of  the  goods  if  it  occurs  with- 
out fault  in  the  carrying  ship.  Woodley  v. 
Mickell  (11  Q.  B.  D.  47)  overruled.  Wilson  v. 
The  Xantho,  12  App.  Cas.  503  ;  56  L.  J.,  P.  116 ; 
67  L.  T.  701  ;  36  W.  R.  353  ;  6  ABp.  M.  C.  207 
— H.  L.  (E.). 

Xxooptions  limiting  Implied  Warranty  of 
Seaworthiness.  ] — A  steamship  which  had  broken 
her  main  shaft  was  salved  by  another  steamship 
belonging  to  the  same  line.  The  breakdown  was 
caused  by  a  latent  defect  in  the  shaft  without 
negligence  on  the  part  of  the  owners  or  their 
servants.  In  a  salvage  action  brought  by  the 
owners,  master,  and  crew  of  the  salving  ship 
against  the  owners  of  cargo  on  board  the  salved 
snip : — Held,  first,  that  the  ship  was  unseaworthy 
when  she  started  on  the  voyage.  Secondly,  that 
the  implied  warranty  of  seaworthiness  in  the  bill 
of  lading  was  an  absolute  warranty  that  the 
ship  should  be  reasonably  fit  to  perform  the 
voyage,  and  not  merely  that  the  shipowner  would 
do  his  best  to  make  her  so.  Thirdly,  that  the 
exceptions  in  the  bill  of  lading,  "  all  and  every 
the  dangers  and  accidents  of  the  seas,  rivers,  and 
canaJ,  and  of  navigation  of  whatever  nature 
or  kind,"  had  not  the  effect  of  limiting  the 
warranty  of  seaworthiness,  but  that  such  excep- 
tions only  protected  the  shipowner  from  liability 
to  the  owners  of  cargo  for  loss  or  damage  sus- 
tained by  the  latter  through  "danger  or  acci- 
dents **  happening  to  a  seaworthy  vessel.  The 
Glen/ruin,  10  P.  D.  103  ;  54  L.  J.,  P.  49 ;  52 
L.  T.  769 ;  33  W.  R.  826 ;  5  Asp.  M.  C.  413— 
Butt,  J. 

A  steamship  became  disabled  at  sea  owing  to 
the  breaking  of  her  fly-wheel  shaft,  through  a 
flaw  in  the  welding  existing  at  the  commence- 
ment of  the  voyage,  but  not  discoverable  by  the 
exercise  of  any  reasonable  care.  The  cargo  on 
board  her  was  shipped  under  three  bills  of  lading, 
the  first  of  which  contained,  amongst  other  ex- 
cepted perils,  the  clause : — '*  warranted  seaworthy 
only  so  far  as  ordinary  care  can  provide ; "  the 
second :  •*  warranted  seaworthy  only  as  far  as 
cine  care  in  the  appointment  or  selection  of 
agents,  superintendents,  pilots,  masters,  officers, 
engineers,  and  crew  can  ensure  it ; "  and  the 
third  :  "  owners  not  to  be  liable  for  loss,  deten- 
tion, or  damage  ...  if  arising  directly  or  in- 
directly .  .  .  from  latent  defects  in  boilers, 
machinery,  or  any  part  of  the  vessel  in  which 
steam  is  need,  even  existing  at  the  time  of  ship- 
ment, provided  all  reasonable  means  have  been 


taken  to  secure  efficiency/'  A  vessel  belonging 
to  the  same  owners  towed  the  disabled  vessel  to 
a  place  of  safety.  In  an  action  of  salvage  brought 
by  the  owners,  master  and  crew  of  the  salving 
vessel  against  the  owners  of  cargo  in  the  salved 
vessel : — Held,  that  the  owners  of  the  cargo  had 
no  remedy  for  breach  of  the  contract  of  carriage, 
for  the  exceptions  in  the  bills  of  lading  were  such 
as  to  constitute  a  limited  warranty  of  seaworthi- 
ness at  the  commencement  of  the  voyage,  which 
limited  warranty  had  been  complied  with  by  the 
shipowners.  Cargo  ex  Laerte*,  12  P.  D.  187  ;  56 
L.  J.,  P.  108 ;  57  L.  T.  502 ;  36  W.  R.  Ill ;  6  Asp. 
M.  C.  174— Butt,  J. 


Cattle— limit  of  Value.]— The  plaintiff 


shipped  certain  cattle  on  board  the  defendant's 
ship  for  carriage  from  London  to  New  York  under 
a  bill  of  lading  which  provided  as  follows: — 
"  These  animals  being  in  sole  charge  of  shipper's 
servants,  it  is  hereby  expressly  agreed  that  the 
shipowners,  or  their  agentB  or  servants,  are,  as 
respects  these  animals,  in  no  way  responsible 
either  for  their  escape  from  the  steamer  or  for 
accidents,  disease,  or  mortality,  and  that  under 
no  circumstances  shall  they  be  held  liable  for 
more  than  hi.  for  each  of  the  animals."  The 
ship  had  on  her  previous  voyage  carried  cattle 
suffering  from  foot  and  mouth  disease.  Some  of 
the  cattle  shipped  under  the  bill  of  lading  were 
during  the  voyage  infected  with  that  disease, 
owing  to  the  negligence  of  the  defendants' 
servants  in  not  cleansing  and  disinfecting  the 
ship  before  receiving  the  plaintiffs  cattle  on 
board  and  signing  the  bill  of  lading,  and  the 
plaintiff  in  consequence  suffered  damage  amount- 
ing to  more  than  5/.  for  each  of  the  said  cattle : — 
Held,  that  the  provision  in  the  bill  of  lading 
limiting  liability  to  51.  for  each  of  the  cattle  did 
not  apply  to  damage  occasioned  by  the  defen- 
dants not  providing  a  ship  reasonably  fit  for  the 
Eurposes  of  the  carriage  of  the  cattle  which  they 
ad  contracted  to  carry.  Tattermll  v.  National 
Steamship  Company,  12  Q.  B.  D.  297  ;  53  L.  J., 
Q.  B.  332 ;  50  L.  T.  299  ;  32  W.  R.  566  ;  5  Asp. 
M.  C.  206— D. 


4.    RIGHTS  AND  LIABILITIES  OF 
INDORSEES. 


« 


Passing  of  Property"  in  Goods — Indorse- 
ment by  way  of  Pledge.] — The  mere  indorse- 
ment and  delivery  of  a  bill  of  lading  by  way  of 
pledge  for  a  loan  does  not  pass  "  the  property  in 
the  goods  "  to  the  indorsee,  so  as  to  transfer  to 
him  all  liabilities  in  respect  of  the  goods  within 
the  meaning  of  the  Bills  of  Lading  Act  (18  & 
19  Vict.  c.  Ill),  s.  1.  Sewell  v.  Burdich,  10 
App.  Cas.  74  ;  54  L.  J.,  Q.  B.  156  ;  52  L.  T.  445  ; 
33  W.  R.  461  ;  5  Asp.  M.  C.  376— H.  L.  (E.). 

Goods  were  shipped  to  a  foreign  port  under 
bills  of  lading  making  the  goods  deliverable  to 
the  shipper  or  assigns.  After  the  goods  had 
arrived,  and  been  warehoused,  the  shipper  in- 
dorsed the  bills  of  lading  in  blank  and  deposited 
them  with  the  indorsees  as  security  for  a  loan. 
The  indorsees  never  took  possession  of  or  dealt 
with  the  goods : — Held,  that  "  the  property"  in 
the  goods  did  not  "  pass  "  to  the  indorsees  within 
the  meaning  of  the  Bills  of  Lading  Act  so  as  to 
make  them  liable  in  an  action  by  the  shipowner 
for  the  freight.    lb. 


1668 


SHIPPING— Charterparty. 


1664 


Liability  for  demurrage  under  a  bill  of  lading 
is  imposed  on  the  holder  by  way  of  security  only 
who  presented  the  bill  and  demanded  the 
delivery.  Allen  v.  Coltart,  11  Q.  B.  D.  782  ;  52 
L.  J.,  Q.  B.  686  ;  48  L.  T.  944 ;  31  W.  B.  841  ;  5 
Asp.  M.  C.  104— Cave,  J. 

Action  against  Shipowner — Quality  Marks 
—  Bepresentation  —  Estoppel  —  Authority  of 
Master.] — A  bill  of  lading  signed  by  the  captain 
of  a  ship  in  respect  of  a  shipment  of  bales  of 
jute  contained  the  following  provision  : — "  If 
quality  marks  are  used,  they  are  to  be  of  the 
same  Bize  as  the  leading  marks  and  contiguous 
thereto,  and,  if  such  quality  marks  are  inserted 
in  the  shipping  notes  and  the  goods  are  accepted 
by  the  mate,  bills  of  lading  in  conformity  there- 
with shall  be  signed  by  the  captain,  and  the  ship 
shall  be  responsible  for  the  correct  delivery  of 
the  goods."  The  bill  of  lading  described  the 
bales  as  marked  in  proportions  specified  with 
different  quality  marks,  indicating  different 
qualities  of  jute,  which  marks  corresponded  with 
those  inserted  in  the  shipping  notes  made  out  by 
the  shippers.  When  the  ship  was  discharged, 
however,  it  was  found  that  there  had  in  fact 
been  shipped  fewer  bales  marked  with  one  of 
such  quality  marks  and  more  marked  with 
another  of  such  marks  indicating  an  inferior 
quality  than  stated  in  the  bill  of  lading : — Held, 
on  the  above  facts,  that  an  indorsee  of  the  bill 
of  lading  for  value,  without  notice  of  the  in- 
correctness of  the  description  of  the  marks  there- 
in, had  no  right  of  action  against  the  shipowners 
either  for  breach  of  contract  or  upon  the  ground 
that  they  were  estopped  by  the  representation 
contained  in  the  bill  of  lading.  Grant  v. 
Norway  (10  C.  B.  666)  followed-  Cox  v.  Bruce, 
18  Q.  B.  D.  147  ;  56  L.  J.,  Q.  B.  121  ;  67  L.  T. 
128  ;  35  W.  R.  207  ;  6  Asp.  M.  G.  162— C.  A. 


5.    SENDING  WITH  BILLS  OF 
EXCHANGE. 

Duties  arising  from.]—  See  ante,  coL  1581. 


VII.    CHABTEBPABTY. 

1.    STAMPING. 

Executed  Abroad— Evidence.]  —  A  charter- 
party  executed  entirely  abroad,  and  stamped 
within  two  months  after  it  has  been  received  in 
this  country,  can  be  received  in  evidence,  since 
it  falls  within  the  provisions  of  33  &  34  Vict.  c. 
97,  s.  15,  and  not  of  86.  67  &  68  of  that  act.  The 
Belfort,  9  P.  D.  216  ;  63  L.  J.,  P.  88  ;  51  L.  T. 
271  ;  83  W.  B.  171 ;  6  Asp.  M.  C.  291— D. 


2.    THE  CONTBAOT. 

Passengers,  right  to  Carry— Custom.] —  A 
charterparty,  not  amounting  to  a  demise  of  the 
ship,  provided  for  the  carriage  of  a  full  and  com- 
plete cargo  of  lawful  produce  and  merchandise 
for  payment  of  a  lump  freight,  but  was  silent  as 
to  the  use  to  which  the  passengers1  cabins  might 
be  put : — Held,  that  the  charterers  were  not 
entitled  to  carry  passengers  in  the  cabins.  Shaw 
v.  Aitken,  1  C.  &  E.  195 — Penman,  J. 


No  custom  exists  entitling  the  charterer  under 
the  above  circumstances  to  carry  passengers,  or 
entitling  the  shipowner  to  have  passengers  car- 
ried for  his  benefit    lb. 

Deck  Cargo  jettisoned— "  At  Xeresnifi 
Bisk,"] — It  was  stipulated  in  a  charterparty 
that  the  "  ship  should  be  provided  with  a  deck 
cargo,  if  required,  at  full  freight,  bat  at 
merchant's  risk  : " — Held,  that  the  words  "at 
merchant's  risk  "  did  not  exclude  the  right  of 
the  charterers  to  general  average  contribution 
from  the  shipowners  in  respect  of  deck  cargo 
shipped  by  the  charterers,  and  necessarily  jetti- 
soned to  save  the  ship  and  the  rest  of  the  cargo. 
Burton  v.  English,  12  Q.  B.  D.  218;  53  L.J„ 
Q.  B.  133  ;  49  L.  T.  768;  32  W.  IL655.;  5  asp. 
M.  C.  187— C.  A. 

Quantity  of  Cargo— "  About"]  —  Under  a 
charterparty  providing  that  the  ship  shall  load 
empty  petroleum  barrels,  as  many  as  may  be  re- 
quired by  the  master,  say  about  5,000;  the 
word  "  about "  entitles  the  master  to  require  at 
his  option  the  shipment  of  10  per  cent  more  or 
less  than  the  amount  specified.  Alcock  v.  lews, 
1  0.  &  £.  98— Mathew,  J. 

Cargo  to  be  loaded  from  Shore  "at  Ship*! 
Bisk  "—Loss  after  delivery  and  before  loaiiig.] 
By  a  charterparty  a  vessel  was  to  proceed  to  a 
port,  and  there  to  load  a  cargo  from  the  shore 
by  the  ship's  boats  and  crew  at  ship's  risk  sad 
expense.  A  part  of  the  cargo  was  lost,  after 
delivery  from  the  shore  and  before  it  was  loaded 
on  board,  through  one  of  the  perils  enumerated 
in  the  exceptions  in  the  charterparty.  In  as 
action  by  the  charterer  for  the  non-dettvery  of 
this  part  of  the  cargo : — Held,  that  the  expres- 
sion "at  ship's  risk"  did  not  mean  at  the 
absolute  risk  of  the  shipowner,  but  at  such  risk 
as  would  attach  if  the  goods  were  loaded  on 
board,  and  that  consequently  the  exceptions 
applied,  and  the  shipowner  was  not  liable  tor 
the  non-delivery.  Nottebohn  v.  Riekter,  18  Q. 
B.  D.  63 ;  66  L.  J.,  Q.  B.  33 ;  35  W.  B.  SOfr- 
C.A. 

Loss  of  Vessel  after  Expiration— Liability  ef 
Charterer— Aet  of  God.] — A  vessel  was  lost, 
through  stress  of  weather  and  without  negli- 
gence, after  the  expiration  of  a  charterparty  >- 
Held,  in  an  action  by  the  representative  of  the 
owner  against  the  charterer,  in  the  absence  of 
express  stipulation,  that  there  was  no  liability 
implied  by  law  on  the  part  of  the  person  h\ 
possession  for  loss  so  occasioned.  Smith  t. 
Drummond,  1  C.  &  B.  160— Cave,  J. 

Option  to  Cancel— -"  Excepted  Dangers."}- 
By  a  charterparty  of  a  steamship  it  was  agreed 
that  she  should  go  to  "  three  safe  loading  places " 
between  two  named  ports,  and  there  load  from 
the  charterers  a  cargo  of  oranges,  and  being  so 
loaded  proceed  to  London  ....  and  deliver  the 
same  pursuant  to  bills  of  lading  ....  (the  aet 
of  God  ....  and  all  dangers  of  the  seas,  riven, 
and  steam  navigation  of  what  nature  and  kind 
soever  during  the  said  voyage,  always  excepted), 
and  the  charterers  thereby  promised  to  load  the 
cargo,  and  stipulated,  after  a  provision  for  work- 
ing and  lay  days,  that  "  should  the  steamer  not 
be  arrived  at  first  loading  port  free  of  pratique, 
and  ready  to  load  on  or  before  the  16th  of 


1665 


SHIPPING— Charterparty. 


1666 


December  next,  charterers  have  the  option  of 
cancelling  or  confirming  this  charterparty." — By 
dangers  of  the  seas,  the  steamer,  although  arrived 
at  the  first  loading  port,  was  not  free  of  pratique 
and  ready  to  load  on  the  15th  of  December,  and 
the  charterers  therefore  cancelled  the  charter- 
party. — At  the  trial  of  an  action  against  them 
for  not  loading  the  cargo,  the  judge  left  to  the 
jury  the  disputed  question  whether  the  port  was 
a  "safe  loading  place,"  and  they  found  in  the 
affirmative : — Held,  that  the  excepted  dangers 
clause  applied  only  to  the  voyage  and  not  to  the 
clause  giving  the  option  to  cancel  the  charter- 
party  if  the  ship  was  not  ready  to  load  on  the 
day  fixed,  and  therefore  the  cancellation  was 
justified.  Smith  v.  Dart,  14  Q.  B.  D.  105  ;  54 
L.  J.,  Q.  B.  121  ;  52  L.  T.  218  ;  33  W.  R.  455  ; 
o  Asp.  M.  C.  360— D. 


"Ready   to    Load."] — A   charterparty 


provided,  that  should  the  steamer  not  be  ready 
to  load  on  or  before  the  31st  May,  1882,  the 
charterer  should  have  the  option  of  cancelling 
the  charter.  On  that  day  the  vessel  had  dis- 
charged two  holds  only  of  its  outward  cargo, 
and  was  not  completely  discharged  till  the 
middle  of  the  following  day  : — Held,  that  the 
charterers  were  entitled  to  cancel  the  charter. 
Graves  v.  Volkart,  1  C.  &  E.  309— -Lopes,  J. 
Affirmed  in  C.  A. 

Cesser  Clause — Incorporation  of  Conditions  of 
Charterparty  in  Bill  of  Lading.] — A  charter- 
party  contained  stipulations  in  the  usual  form 
for  payment  of  freight  and  demurrage,  and  also 
a  stipulation  that "  as  this  charterparty  is  entered 
into  by  the  charterers  on  account  of  another 
party,  their  liability  ceases  as  Boon  as  the  cargo 
is  on  board,  the  vessel  holding  a  lien  upon  the 
cargo  for  freight  and  demurrage."  The  char- 
terers having  placed  the  cargo  on  board  at  the 
port  of  loading,  a  bill  of  lading  was  signed 
whereby  the  goods  were  made  deliverable  to 
themselves  at  the  port  of  discharge,  "  they  pay- 
ing freight,  and  all  other  conditions  as  per 
charterparty."  In  an  action  by  the  shipowner 
against  them  as  consignees  of  the  cargo,  for 
demurrage  in  respect  of  delay  at  the  port  of 
discharge  : — Held,  that  the  cesser  clause  in  the 
charterparty  must  be  rejected  as  inapplicable  in 
reading  the  bill  of  lading,  which  incorporated 
all  the  conditions  of  the  charterparty  applicable 
to  the  reception  of  the  goods  at  the  port  of  dis- 
charge, and,  therefore,  that  the  plaintiff  was 
entitled  to  maintain  the  action.  Gvllischen  v. 
Stewart,  13  Q.  B.  D.  317  ;  53  L.  J.,  Q.  B.  173  ; 
50  L.  T.  47 ;  32  W.  B.  763  ;  5  Asp.  M.  C.  200— 
C.A. 

A  clause  in  a  charterparty  providing  for  the 
cesser  of  the  charterer's  liability  on  the  goods 
being  loaded,  does  not  absolve  the  charterer,  if 
he  be  also  the  indorsee  and  holder  of  a  bill  of 
lading,  incorporating  the  conditions  of  the  char- 
terparty, from  liability  for  damage  incurred  at 
an  intermediate  port  Bryden  v.  Niebv.hr,  1  C. 
k  E.  241— Stephen,  J. 

Bill  of  Lading  differing  from  Terms  of  Char- 
terparty. J — The  plaintiffs  chartered  the  defen- 
dant's ship  for  carriage  of  a  cargo  of  cotton-seed 
from  AlexAndria  to  the  United  Kingdom.  The 
charterparty  provided  that  the  master  was  to 
sign  bills  of  lading  at  any  rate  of  freight  and  as 
customary  at  port  of  lading  without  prejudice  to 


the  stipulation  of  the  charterparty.  There  was 
also  a  cesser  of  liability  clause.  A  cargo  was 
shipped  under  the  charterparty  at  Alexandria 
by  and  on  account  of  the  charterers,  and  a  bill 
of  lading  was  given  containing  an  exception, 
which  was  not  in  the  charterparty,  protecting 
the  shipowners  from  liability  for  damage  arising 
from  any  act,  neglect,  or  default  of  the  pilot, 
master,  or  mariners.  The  cargo  was  lost  by  the 
negligence  of  the  master.  In  an  action  for  non- 
delivery of  the  cargo,  the  jury  found  that  there 
was  no  special  custom  at  Alexandria  with  regard 
to  the  form  of  bill  of  lading  in  use  there : — 
Held,  that,  whether  such  finding  were  right  or 
wrong,  the  terms  of  the  charterparty  did  not 
authorise  the  giving  of  a  bill  of  lading  con- 
taining the  before-mentioned  exception ;  and 
that,  even  if  they  did,  in  the  absence  of  express 
provision  to  the  contrary,  as  between  the  ship- 
owners and  the  charterers  only  the  charterparty 
could  be  regarded  as  constituting  the  contract, 
and  the  bill  of  lading  must  be  looked  on  as  a 
mere  receipt  for  the  goods ;  and  consequently 
that  the  defendants  were  liable  for  non-delivery 
of  the  cargo.  Rodocanaehi  v.  MUbvrn,  18  Q. 
B.  D.  67  ;  56  L.  J.,  Q.  B.  202  ;  66  L.  T.  694  ;  35 
W.  R.  241 ;  6  Asp.  M.  C.  100^-0.  A.  See  Gard- 
ner v.  Trechmann,  post,  coL  1676. 

By  what  Law  governed — Law  of  the  Flag — 
"  Lex  loci  contractus."] — A  claim  was  made  by 
an  American  citizen  in  the  winding-up  of  a  British 
steamship  company  for  damages  for  the  loss  of 
his  cattle  arising  through  the  negligence  of  the 
master  and  crew.  The  ship  in  which  the  cattle 
were  carried  was  a  British  ship  trading  between 
Boston  and  Liverpool.  The  charterparty  con- 
tained express  stipulations  exempting  the  com- 
pany from  liability  caused  by  the  negligence  of 
the  master  and  crew.  The  cattle  were  shipped 
at  Boston,  and  bills  of  lading  were  given  there, 
in  conformity  with  the  contract.  The  ship 
stranded  on  the  coast  of  North  Wales,  owing,  as 
was  admitted,  to  the  negligence  of  the  master 
and  crew.  According  to  the  law  of  the  State 
of  Massachusetts,  as  at  present  ascertained,  the 
stipulations  exempting  the  owners  from  liability 
through  negligent  navigation  were  void;  but 
according  to  English  law  such  stipulations  were 
good,  and  were  usually  inserted  in  English  bills 
of  lading.  The  question  was  whether  the  law  of 
the  flag  (that  is  to  say,  the  personal  law  of  the 
shipowner)  or  the  lex  loci  contractus  should 
govern  the  contract  of  affreightment : — Held,  on 
the  authority  of  Lloyd  v.  Guibert  (1  L.  R.,  Q.  B. 
115),  that  the  stipulations  were  valid,  first  on  the 
general  ground  that  the  contract  was  governed 
by  the  law  of  the  flag ;  and,  secondly,  on  the 
particular  ground  that  from  the  special  provi- 
sions of  the  contract  itself  it  appeared  that  the 
parties  were  contracting  with  a  view  to  the  law 
of  England.  Missouri  Steamship  Company, 
Monroe's  Claim,  In  re,  58  L.  T.  377;  6  Asp.  M.  C. 
264— Chitty,  J.    Affirmed  37  W.  R.  696— C.  A. 

"Ready  Quay  Berth  as  ordered  by  Char- 
terer."]— By  a  charterparty  it  was  agreed  that 
the  plaintiff's  vessel  after  loading  a  certain  cargo 
should  proceed  to  "  London  or  Tyne  dock  to 
such  ready  quay  berth  as  ordered  by  the  char- 
terers," "  demurrage  to  be  at  the  rate  of  302.  per 
running  day,"  in  no  case  unless  in  berth  before 
noon  were  the  lay  days  to  count  before  the  day 
following  that  on  which  the  vessel  was  in  berth, 

3  H 


1667 


SHIPPING— Cargo, 


1668 


and  the  captain  or  owners  were  to  have  an  abso- 
lute lien  on  the  cargo  for  all  freight  and  demur- 
rage in  respect  thereof.  The  vessel  was  ordered 
by  the  charterers  to  a  certain  London  dock,  bnt 
when  the  vessel  arrived  at  such  dock  there  was 
no  quay  berth  ready  for  her,  and  she  was  conse- 
quently detained  one  day  beyond  the  time 
required  for  discharging  her,  had  she  been  able 
to  have  got  alongside  a  quay  berth  on  her  arrival 
in  the  dock  : — Held,  on  the  construction  of  this 
charterparty,  that  the  charterers  were  bound  to 
name  such  quay  berth  as  was  ready,  and  that  for 
the  detention  caused  by  the  charterers  neglect- 
ing to  do  so  the  plaintiffs  were  entitled  to  a  lien 
on  the  cargo  for  demurrage,  the  damage  for  the 
detention  being  sufficiently  in  the  nature  of  de- 
murrage to  come  within  the  demurrage  clause. 
Harris  v.  Marcut  Jacnbs,  16  Q.  B.  D.  247 ;  54 
L  J.,  Q.  B.  492 ;  54  L.  T.  61;  6  Asp,  M.  0.  630— 
— C.A. 

"  So  near  thereto  as  she  may  safely  get  at 
all  times  of  Tide  and  always  Afloat"] — A  ship 
was  chartered  to  unload  at  8.  or  "as  near  thereto 
as  she  might  safely  get  at  all  times  of  tide  and 
always  afloat,"  and  for  delay  in  unloading  the 
charterers  were  to  pay  demurrage.  The  state  of 
the  tide  prevented  the  ship  from  reaching  S.  for 
four  days  after  she  arrived  at  the  nearest  point 
where  she  was  able  to  float : — Held,  that,  accord- 
ing to  the  terms  of  the  charterparty,  this  was  a 
sufficient  arrival  of  the  ship  at  6.  to  found  a 
claim  for  demurrage.  Hordey  v.  Price,  11  Q.  B. 
D.  244  ;  62  L.  J.,  Q.  B.  603  ;  49  L.  T.  101;  31  W. 
B.  786 ;  5  Asp.  M.  C.  106— North,  J. 


"  If  sufficient  Water."]— A  condition  in  a 

charterparty  that  the  ship  shall  "  discharge  in  a 
dock  as  ordered  on  arriving,  if  sufficient  water, 
or  so  near  thereunto  as  she  may  safely  get, 
always  afloat,"  means  that  she  is  to  discharge 
in  the  dock  ordered,  if  there  is  sufficient  water 
at  the  time  of  giving  the  order.  AUen  v.  Coltart, 
11  Q.  B.  D.  782  ;  52  L.  J.,  Q.  B.  686  ;  48  L.  T. 
944  ;  31  W.  B.  841;  5  Asp.  M.  C.  104— Cave,  J. 

Blockade  of  Port  of  Loading — Delivery 


elsewhere.] — Under  a  charterparty  that  a  ship 
should  proceed  to  Taganrog,  or  "  so  near  thereto 
as  she  may  safely  get,"  and  there  deliver  cargo  : 
— Held,  that  this  port  being  under  blockade,  it 
was  not  a  fulfilment  of  the  contract  for  the 
vessel  to  discharge  at  Constantinople,  even 
though  that  might  be  a  reasonable  course  to 
adopt.  Cartel  v.  Trechman,  1  0.  &  E.  276— 
Stephen,  J. 

3.  EXEMPTIONS  FBOM  LIABILITY. 

"Bangers  and  Accidents  of  navigation."] — 
A  charterparty  provided  that  the  ship  should 
load  a  cargo  of  coal  and  deliver  the  same  at 
the  port  of  discharge  at  a  freight  of  so  much 
per  ton  on  the  quantity  delivered  (the  act  of 
God,  &c.,  and  all  and  every  other  dangers  and 
accidents  of  the  seas,  rivers,  and  navigation 
always  excepted),  the  freight  to  be  paid  two- 
thirds  in  cash  ten  days  after  the  vessel's  sailing, 
and  the  remainder  in  cash  on  the  right  and  true 
delivery  of  the  cargo  agreeably  to  bills  of  lading, 
less  cost  of  coal  delivered  short  of  bill  of  lading 
quantity: — Held,  that  a  collision  attributable 
solely  to  the  negligence  of  those  in  charge  of  the 
other  vessel  was  a  "  danger  or  accident  of  navi- 


gation "  within  the  meaning  of  the  charterparty 
and  therefore  that  the  shipowners  were  not  liable 
in  respect  of  non-delivery  of  part  of  the  eargo 
shipped  caused  by  such  a  collision ;  bat  that  the 
charterers  were  entitled  nevertheless  under  the 
charterparty  to  set  off  the  cost  of  the  coal  so 
undelivered  against  the  balance  of  freight  pay- 
able on  delivery  of  the  remainder  of  the  cargo  at 
the  port  of  discharge.  Woodleyv.  MtekeU(\\ 
Q.  B.  D.  47)  distinguished.  "OarHtm"  Sstft* 
Skip  Company  v.  Hitkie,  18  Q.  B.  D.  17 ;  W 
L.  J.,Q.B.38;  66  L.T.  879;  35  W.R.33;6Aip. 
M.  C.  71— C.  A. 

"  Bangers  and  Accidents  of  the  Seas."  J—Bice 
was  Bhipped  under  a  charterparty  and  bUli  of 
lading  which  excepted  "  dangers  and  accidents 
of  the  seas."  During  the  voyage  rats  gnawed 
a  hole  in  a  pipe  on  board  the  ship,  whereby 
sea- water  escaped  and  damaged  the  rice,  with- 
out neglect  or  default  on  the  part  of  the  ship- 
owners or  their  servants  :  —  Held,  that  the 
damage  was  within  the  exception,  and  that 
the  shipowners  were  not  liable.  Hamilton  t. 
Pandorf,  12  App.  Cos.  518 ;  57  L.  J„  Q.  &  24; 
57  L.  T.  726  ;  36  W.  R.  869  ;  62  J.  P.  196 ;  6  Asp. 
M.  C.  212— H.  L.  (E.). 

"  Dangers  of  the  Seas  and  Biveri."]-Timbei 
had  been  towed  alongside  a  vessel  lying  in  a 
river  for  shipment,  and  the  master's  receipts  for 
the  quantity  delivered  had  been  received,  and 
owing  to  a  rapid  current  and  strong  wind  then 
prevailing  the  usual  means  for  securing  the 
timber  proved  inefficient  and  a  large  amount 
was  lost : — Held,  that  the  loss  was  a  loss  within 
the  exception  of  a  charterparty  excluding  all 
"dangers  and  accidents  of  seas  and  riTexi' 
Pyman,  v.  Bwrt,  1  C.  &  £.  207— Hawkins,  J. 

Xfleet  of,  on  Option  to  Cancel.]— See  Smtih  ▼. 
Dart,  ante,  col.  1665. 


YIII.    CABGO. 
1.    STOWAGE. 

Carriage  of  Grain— Two-deck  Snip— ffliiftiig- 
boardi  in  Lower  Hold  —  Feeders.]  —  A  ship 
having  two  decks  and  loaded  with  a  cargo  «• 
barley  in  bulk  at  a  port  in  the  Mediterranean 
must,  upon  the  proper  construction  of  s.  4,  sub*. 
O),  of  the  Merchant  Shipping  (Carriage  of  Grain) 
Act,  1880,  and  the  Board  of  Trade  Begulations 
of  August,  1881,  be  provided  with  shifting- 
boards  in  the  lower  hold.  By  paragraph  4  (•) 
of  these  regulations— which  directs  that  feeders 
shall  be  fitted  to  feed  the  grain  carried  in  the 
between-decks,  such  feeders  to  contain  not^ 
than  2  per  cent,  of  the  compartments  they  feed 
—it  is  intended  that  the  .feeders  feeding  the 
grain  carried  in  the  between-decks,  shall  con- 
tain not  less  than  2  per  cent  of  the  grain  in  the 
compartments  in  the  between-decks  which  they 
feed,  and  of  the  grain  in  the  hold  below  which 
is  fed  by  such  compartments.  The  Batkbrnfj^ 
P.  D.  119  ;  67  L.  J.,  P.  99  ;  59  L.  T.  672;  37  W. 
B.  158— Butt,  J. 

2.    COSTS    OF    DISCHARGING— DOCK 

CHABGES. 

Failure  of  Cargo  Owner   to  take  Gotdi- 
Duty  of  Shipowner— Votiee  to  lignteraam.]-- 


1669 


SHIPPING— Cargo. 


1670 


When  goods  are  landed  under  sub-s.  6,  25  &  26 
Vict-  c.  63,  s.  67,  sub-s.  7  does  not  apply,  for  the 
latter  refers  only  to  the  discharging  of  cargo 
orerside,  and  not  to  the  landing  of  it  for  the 
purposes  of  assortment  on  the  wharf,  and  the 
written  notice  referred  to  in  sub-s.  7  applies, 
therefore,  to  cases  arising  under  that  sub-section 
only.  It  is  the  duty  of  the  owner  of  goods  who 
receives  either  a  written  or  a  verbal  notice  that 
he  can  have  them  to  take  them  away  within  a 
reasonable  time,  and  that  whether  sub-s.  6  or  7 
applies  to  the  case.  Notice  to  the  lighterman 
employed  by  the  owner  of  the  goods  is  notice  to 
the  owner  himself.  The  Clan  Macdonald,  8 
P.  D.  178 ;  52  L.  J.,  P.  89  ;  49  L.  T.  408 ;  32 
W.  B.  154  ;  5  Asp.  M.  C.  148— Hannen,  P. 

A  ship  arrived  in  dock  with  a  general  cargo  on 
the  12th  of  December,  and  began  to  unload  on 
the  quay  on  the  13th.  The  plaintiffs  (owners  of 
some  of  the  goods),  sent  a  lighterman  and  barge 
to  receive  their  portion  of  the  cargo  on  the  13th. 
It  was  not  then  ready.  On  the  14th  the  lighter- 
man again  attended,  but  could  obtain  no  infor- 
mation. On  the  14th  the  firm  of  lightermen 
wrote  to  the  defendants  (the  shipowners),  stat- 
ing they  had  made  application  for  the  goods,  and 
enclosing  a  notice  requiring  twenty-four  hours* 
notice  of  the  defendants1  readiness  to  deliver 
the  goods,  and  stating  that  they  would  not  be 
responsible  for  any  landing  charges.  On  the 
15th  the  landing  of  the  cargo  was  completed, 
and  the  lighterman  was  that  day  verbally  in- 
formed he  could  have  the  goods  on  the  morning 
of  the  16th.  He  did  not  attend,  and  the  goods 
were  not  taken  away  till  the  29th.  The  plain- 
tiffs paid  the  dock  charges  under  protest,  and 
brought  an  action  to  recover  them  back  : — Held, 
that  they  could  not  recover  them.    lb. 

Custom  of  Port  of  London.]— A  bill  of  lading 
stipulated  (inter  alia)  that  "the  merchandise 
shipped  thereunder  was  to  be  received  on  the 
quay  at  London,  and  delivered  therefrom  by  the 
person  appointed  by  the  steamship's  agents,  &c, 
the  merchandise  to  be  received  and  delivered 
according  to  the  customs  and  usages  of  the  re- 
spective ports."  A  custom  was  proved  with 
regard  to  grain  cargoes  coming  to  London,  that 
if  the  merchant  does  not  demand  delivery  of 
the  grain  within  twenty-four  hours  after  the 
ship's  arrival,  the  ship  is  entitled  to  discharge 
the  goods  on  the  quay.  The  merchant  did  not 
demand  delivery  of  the  cargo  within  the  twenty- 
fouT  hours,  and  it  was  landed  on  the  quay : — 
Held,  that  the  custom  was  not  inconsistent  with 
the  terms  of  the  bill  of  lading,  and  that  there- 
fore the  merchant  was  bound  to  pay  the  ex- 
penses incurred  in  weighing  out  the  cargo  and 
the  quay  rates.  Aste  v.  Stumore,  1  C.  &  E.  319 
— O.  A. 

Goods  were  shipped  under  a  bill  of  lading  at 
Calcutta  to  be  delivered  in  like  good  order  and 
condition  from  the  ship's  tackles  at  the  port  of 
London.  On  arrival  in  the  port  of  London  the 
consignees  demanded  overside  delivery  into 
lighters  immediately  from  the  ship's  tackles. 
The  shipowner  landed  them  on  the  dock  wharf, 
and  was  ready  to  deliver  them  thence  into  the 
consignee's  lighters,  but  the  consignee  carted 
them  away,  thereby  becoming  liable  to  certain 
dock  charges  which  he  paid.  In  an  action  by 
the  consignee  to  recover  the  amount  so  paid,  the 
jury  found  that  there  was  a  custom  for  steam- 
ships having  a  general  cargo  (the  defendants' 


ship  being  such)  coming  into  the  port  of  London 
ana  using  the  docks,  to  discharge  the  goods  on 
to  the  quay,  and  thence  into  lighters: — Held, 
that  the  custom  found  was  not  inconsistent 
with  the  terms  of  the  bill  of  lading,  and  that 
the  shipowner  was  entitled  to  discharge  the 
goods  on  to  the  quay,  and  was  not  liable  for  the 
charge  sought  to  be  recovered.  Marzetti  v. 
Smith,  49  L.  T.  680 ;  5  Asp.  M.  C.  166 — C.  A. 
Affirming  1  C.  &  E.  6— Cave,  J. 


3.   ACTIONS    FOR   LOSS    AND   NON- 
DELIVERY. 

Bock  Cargo — Jettison  of — Proximate  Cause 
of  Damage.] — On  a  ship  carrying  a  general 
cargo  from  New  Orleans  to  Liverpool  cotton 
was  shipped  on  deck,  under  a  practice  by  which 
owners  of  vessels  trading  between  those  ports 
were  in  the  habit  of  stowing  goods  on  deck  in 
violation  of  their  contract  with  the  shipper,  the 
shipowners  accepting  full  responsibility  for  the 
consequences.  The  bills  of  lading  for  part  of 
the  cotton  contained  the  words  "  under  deck." 
All  the  bills  of  lading  contained  exceptions 
(inter  alia)  in  favour  of  "  jettison."  On  the 
voyage  the  ship  took  ground,  and  in  order  to 
get  her  off  the  master  properly  jettisoned  the 
cotton.  The  indorsees  of  the  bills  of  lading 
having  brought  an  action  against  the  ship- 
owners to  recover  the  value  of  the  cotton : — 
Held,  that  (whether  the  bills  of  lading  did  or 
did  not  contain  the  words  " under  deck")  the 
cotton  was  carried  in  breach  of  the  contract  and 
was  not  within  the  exceptions  specified  in  the 
bills  of  lading,  whioh  had  exclusive  reference  to 
goods  safely  stowed  under  hatches ;  that  the 
shipowners  had  therefore  no  legal  excuse  for 
their  failure  to  deliver ;  that  the  cause  of 
damage  was  not  too  remote,  and  that  the  ship- 
owners were  liable  to  the  indorsees  for  the 
value  of  the  cotton.  Royal  Exehange  Shipping 
Company  v.  Dixon,  12  App.  Cas.  11 ;  56  L.  J., 
Q.  B.  266  ;  56  L.  T.  206  ;  35  W.  R.  461 ;  6  Asp. 
M.  C.  92— H.  L.  (E.). 

Collision — Transhipment — Lois  by  Perils  not 
previously  exoepted  —  Limitation  Action.]  —  A 
cargo  was  shipped  by  the  plaintiff  on  the  de- 
fendants' vessel  under  a  charterparty  and  bill  of 
lading,  not  excepting  the  negligence  of  the 
master  and  crew.  During  the  voyage,  and 
through  the  negligence  of  the  masters  and  crews 
of  both  ships,  the  vessel  came  into  collision  with 
another,  and  was  so  much  damaged  as  to  render 
it  necessary  to  discharge  her  cargo  at  a  port  of 
refuge,  and,  after  temporary  repairs,  to  complete 
the  voyage  in  ballast.  The  master  transihpped 
the  cargo  with  the  knowledge,  but  without  the 
assent  or  dissent  of  the  plaintiff,  into  three  other 
vessels,  under  bills  of  lading  excepting  the  negli- 
gence of  the  masters  and  crews.  Two  of  these 
vessels  with  their  cargoes  were,  through  the 
negligence  of  their  masters  and  crews,  lost  before 
reaching  the  port  of  discharge.  The  defendants 
obtained  a  decree  limiting  their  liability  arising 
out  of  the  collision  to  8/.  per  ton,  and  the  pro- 
ceeds were  distributed  to  the  claimants,  of  whom 
the  plaintiff  was  not  one.  In  an  action  for  non- 
delivery of  the  portion  of  the  cargo  lost : — Held, 
that  the  defendants  were  liable;  for  the  loss 
did  not  arise  from  an  excepted  peril,  and  the 

3  H  2 


1671 


SHIPPING— Cargo. 


1672 


transhipment,  though  justifiable}  was  for  the 
purpose  of  earning  the  freight  under  the  charter- 
party  ;  and  that  the  judgment  in  the  limitation 
action  was  no  bar  to  the  present  claim,  as  the 
loss  of  the  portion  of  the  cargo,  the  subject  of 
this  action,  was  not  caused  by  the  collision  in 
respect  of  which  the  defendants  had  limited 
their  liability.  The  Bernina,  12  P.  D.  36  ;  56 
L.  J.,  P.  38  ;  56  L.  T.  450 ;  35  W.  R.  214  ;  6  Asp. 
M.  C.  112— Hannen,  P. 


Both  Ships  to  Blame — Damage  to  Cargo.] 


—The  Admiralty  Court  rule  that  in  cases  of 
collision  the  damages  are  to  be  equally  divided 
where  both  ships  are  to  blame,  does  not  apply  to 
actions  for  breach  of  contract  of  carriage  brought 
by  owners  of  cargo  against  the  carrying  ship  to 
recover  damages  for  loss  of,  or  injury  to,  their 
goods,  and  hence  the  plaintiffs  in  such  actions 
are  entitled  to  recover  their  full  damages  from 
the  owners  of  the  carrying  ship.  The  Bushirc, 
52  L.  T.  740 ;  5  Asp.  M.  C.  416— Butt,  J. 

Measure  of  Damages — Loss  of  Market.]  — 
The  defendant,  the  master  of  the  steamer  "  Carbis 
Bay,"  lying  at  Wilmington,  signed  bills  of  lading 
for  400  bales  of  cotton  "  shipped  on  board  the 
*  Carbis  Bay'"  for  Liverpool.  In  consequence 
of  insufficient  room  only  165  bales  could  be 
shipped,  and  the  defendant  directed  the  remain- 
ing 235  bales  to  be  shipped  on  board  the  steamer 
44  Wylo,"  then  lying  in  the  same  port,  bound  for 
Liverpool.  The  "  Carbis  Bay  "  arrived  at  Liver- 
pool on  the  26th  of  October,  and  the  "  Wylo  "  on 
the  29th  of  October,  and  both  cargoes  were 
delivered  to  the  plaintiffs,  who  were  indorsees  of 
the  bills  of  lading.  Between  the  26th  and  the 
29th  of  October  a  fall  in  the  price  of  cotton  took 
place,  and  the  plaintiffs  sued  the  defendant  for 
the  loss  thereby  occasioned : — Held,  that  on  the 
26th  of  October  the  plaintiffs  had  a  right  of 
action  against  the  defendant  for  non-delivery, 
that  the  measure  of  damages  was  the  market 
price  of  cotton  on  that  day,  and  that  the  subse- 
quent delivery  of  the  cotton  ex  "  Wylo  "  could 
only  be  taken  into  account  in  reduction  of 
damages.  Smith  v.  Tregarthen,  56  L.  J.,  Q.  B. 
437 ;  57  L.  T.  58  ;  35  W.  R.  665 ;  6  Asp.  M.  C. 
137— D. 

Freight    Payable    in    Advanoe.l  —  A 

stipulation  in  a  charterparty  that  four-fifths  of 
the  freight  should  be  paid  in  advance — "  vessel 
lost  or  not  lost  "—does  not  prevent  the  charterer 
from  recovering  that  amount  as  damages  from 
the  shipowner  upon  a  loss  of  the  vessel  owing  to 
negligence.  Great  Indian  Peninsular  Railway 
v.  Turnbull,  53  L.  T.  325 ;  33  W.  R.  874  ;  1 
C.  &  £.  595  ;  5  Asp.  M.  C.  466—  Denman,  J. 

Circumstances   peculiar  to   Plaintiff — 

Advanced  Freight  "subject  to  insuranee."]— 

The  plaintiffs  having  sold  the  cargo  "  to  arrive," 
at  a  price  less  than  the  market  value  of  the 
goods  at  the  port  of  discharge  at  the  time  when 
the  cargo  should  have  arrived : — Held,  that  in 
estimating  the  damages  such  market  value  must 
be  looked  to,  and  not  the  price  at  which  the 
plaintiffs  had  sold  the  cargo.  The  charterparty 
provided  that  sufficient  cash  for  ship's  disburse- 
ments should  be  advanced,  if  required,  to  the 


captain  by  the  charterers  on  account  of  freight, 
subject  to  insurance  only.  The  plaintiffs  having 
advanced  sums  for  ship's  disbursements  on  ac- 
count of  freight  as  provided  for  in  the  charter- 
party  : — Held,  that,  in  estimating  the  damages 
for  non-delivery  of  the  cargo,  only  the  unpaid 
freight  must  be  deducted  from  the  market  value 
of  the  goods,  not  the  advanced  freight  as  well 
Rodocanachi  v.  MUburn,  18  Q.  B.  D.  67 ;  56  L 
J.,  Q.  B.  202 ;  56  L.  T.  594 ;  35  W.  R.  241 ;  6 
Asp.  M.  C.  100— C.  A. 


Advanced  Freight  insured— Subrogation 


of  Insurer  to  Bights  of  Assured.]— Goods  were 
shipped  by  the  plaintiffs  on  the  defendants*  ship 
under  a  charterparty,  which  provided  that  if  re- 
quired the  whole  freight  should  be  advanced 
subject  to  a  deduction  for  interest  and  insurance. 
The  freight  was  paid  in  advance,  and  the  amount 
was  insured.    The  charterers  sold  the  goods  to 
the  plaintiffs  at  a  price  covering  cost,  freight, 
and  insurance.    The  cargo  was  lost  by  the  negli- 
gence of  the  defendants.    In  an  action  for  the 
loss  of  the  goods : — Held,  that  the  plaintiffs 
were  entitled  to  recover  as  part  of  the  damages 
sustained  by  them  the  amount  of  the  advanced 
freight,  which  was  included  in  the  price  paid  bj 
them  for  the  goods,  for  the  insurers  of  the  freight 
who  had  indemnified  the  plaintiffs  were  entitled 
to  be  subrogated  to  the  rights  of  the  plaintiffs  in 
respect  of  the  advanced  freight,  and  to  have  the 
action    maintained    for  their    benefit   for  the 
amount  insured,  as  it  would,  but  for  the  insur- 
ance, have  formed  part  of  the  damages  to  which 
the  plaintiffs  would  have  been  entitled.    D*- 
fourcet  v.  Bishop,  18  Q.  B.   D.  373  ;  66  L.  J., 
Q.  B.  497 ;  56  L.  T.  633  ;  6  Asp.  M.  C.  109— 
Denman,  J. 


Bight  of  Owner  of  Cargo  to  recover  Salvage 
Expenses    from    Shipowner.]  —  The   plaintifb 
under  a  charterparty  shipped  a  large  quantity  of 
rye  on  board  one  of  the  defendants'  ships,  to  he 
carried  from  the  port  of  T.  to  the  port  of  A. 
Owing  to  the  negligent  navigation  of  the  defen- 
dants' servants  the  ship  was  cast  ashore,  and  a 
large  quantity  of  the  rye  was  lost ;  but  a  con- 
siderable quantity  was  saved  by  the  Salvage 
Association,  who  were  employed  by  the  under- 
writers of  the  cargo  with  the  assent  of  the  defen- 
dants.    The  average  statement  was  prepared, 
and  the  sum  assessed  was  agreed  to  by  the  plain- 
tiffs, and  the  Salvage  Association  were  paid  by 
the  underwriters  the  expenses  claimed  by  them. 
The  plaintiffs  brought  their  action  to  recover  the 
amount  of  the  salvage  expenses  so  paid  by  the 
underwriters.    The  plaintiffs  recovered  a  verdict 
for  an  amount  to  be  settled  out  of  court,   The 
question  of  law  involved  in  the  case  was  reserved 
for  further  consideration.    The  defendants  con- 
tended that  they  were  not  liable  because  the 
plaintiffs  themselves  had  not  paid  the  expenses, 
and  the  payment  under  the  circumstances  was 
voluntary  :— Held,  that  the  plaintiffs  were  en- 
titled to  recover  the  amount  of   the  salvage 
expenses,  as,  without  their  being  incurred,  the 
remainder  of  the  cargo  could  not  have  been  sent 
to  its  destination,  which  was  for  the  benefit  of 
the  defendants,  and  that  the  payment  under  the 
circumstances  was  not  voluntary.     Scara***9* 
v.  Marquand,  53  L.  T.  810  ;  5  Asp.  M.  C.  506— 
C.  A.    Affirming  1  C.  &  B.  500— Huddleston,  B. 


1678 


SHIPPING— Freight. 


1674 


IX    FREIGHT. 


1.    WHEN   PAYABLE. 

Pro  Bata — Abandonment— Salvage.]— Where 
a  saWing  ship  takes  a  crew  off  a  vessel  in  distress 
and  pats  men  on  board  of  her,  refusing  to  allow 
her  own  crew  to  return,  and  the  two  vessels  are 
in  company  navigated  into  port,  there  is  no  such 
abandonment  of  the  ship  as  to  put  an  end  to  the 
contract  of  carriage,  and  consequently  there  will 
be  freight  due  upon  the  consignees  requiring 
delivery  of  the  cargo,  such  freight  being  pro 
rat&,  assuming  the  port  not  to  be  the  port  to 
which  the  cargo  ought  to  have  been  taken  under 
the  contract  of  carriage.  The  Leptir,  52  L.  T. 
768  ;  6  Asp.  M.  C.  411— Butt,  J. 

Blockade  of  Port  of  Loading  —Delivery 

elitwhere.] — Under  a  charterparty  that  a  ship 
should  proceed  to  Taganrog,  or  "  bo  near  thereto 
as  she  may  safely  get,"  and  there  deliver  cargo  : 
—Held,  that  this  port  being  under  blockade,  it 
was  not  a  fulfilment  of  the  contract  for  the  vessel 
to  discharge  at  Constantinople,  even  though  that 
might  be  a  reasonable  course  to  adopt,  and  that 
no  contract  to  pay  freight  pro  rata  could  be 
implied,  and  that  the  charterers  having  paid  the 
freight  at  Constantinople,  under  protest,  were 
entitled  to  recover  it  back.  Oattel  v.  Trechman, 
1  C.  &  E.  276— Stephen,  J. 


2.  TO  AND  BY  WHOM  PAYABLE. 

Bight  of  Mortgage©  in  Possession  to  Freight.] 
— See  Japp  v.  Campbell,  ante,  col.  1657. 

Liability  for— BUI  of  Lading.]— See  Setvell  v. 
Burdiek,  ante,  col.  1662. 


3.  TIME  FOR  PAYMENT. 

"Port"  —Final  Sailing  of  Ship  from  last 

fort.]  —  By  the  terms  of  a  charterparty  the 

owners  were  entitled  to  an  advance  of  one-third 

of  the  freight  within  eight  days  "from  final 

sailing  of  the  vessel  from  her  last  port  in  United 

Kingdom."     The  vessel  was  loaded  at  Penarth 

dock,  and  was  towed  by  a  steam-tug  seven  or 

eight  miles,  bringing  her  out  about  three  miles 

into  the  Bristol  channel.   She  there  cast  anchor, 

as  the  weather  was  threatening.    While  she  was 

lying  at  anchor  a  storm  broke  her  cables,  and 

she  ultimately  ran  ashore  on  Penarth  beach,  and 

the  cargo  was  spoiled.    The  vessel  had  never 

been  beyond  the  limits  of  the  port  of  Cardiff  as 

defined  for  fiscal  purposes,  but  she  had  left  what, 

for  commercial  purposes,  is  considered  the  port, 

and  had  been  oat  at  sea.  She  went  ashore  within 

the  limits  of  the  port  in  its  commercial  sense. 

The  owners  sued  for  one-third  of  the  freight,  and 

the  charterers  resisted  the  claim  on  the  ground 

that  the  vessel  had  never  sailed  from  her  last 

port  in  the  United  Kingdom: — Held,  that  the 

word   "port"  must  be  taken  in  its  ordinary 

commercial  sense,  and  that  as  the  vessel  had  got 

out  to  sea  without  any  intention  of  returning, 

she  must  be  taken  to  have  finally  sailed  from  her 

last  port,  that  her  being  driven  back  into  it  by 

the  weather  made  no  difference,  and  that  the 

one-third  of  the  freight  was  payable.    Price  v. 


Livingstone,  9  Q.  B.  D.  679  ;  63  L.  J.,  Q.  B.  118; 
47  L.  T.  629  ;  5  Asp.  M.  C.  13— C.  A. 

The  word  "port"  in  a  charterparty  is  to  be 
understood  in  its  popular,  or  business,  or  com- 
mercial sense ;  it  does  not  in  such  a  document 
necessarily  mean  the  port  as  defined  for  revenue 
or  pilotage  purposes.  Tests  for  determining  the 
business  meaning  of  the  word  "  port "  considered. 
"  Garnton "  Sailing-ship  Company  v.  Hwkie, 
15  Q.  B.  D.  580 ;  53  L.  T.  795  ;  5  Asp.  M.  C.  499 
— C.  A. 

A  charterparty  provided  that  a  ship  should 
load  a  cargo  of  coals  at  Cardiff,  and  then  proceed 
to  Bombay,  the  freight  to  be  paid  two-thirds  in 
cash  "ten  days  after  the  final  sailing  of  the 
vessel  from  her  last  port  in  Great  Britain/'  and 
the  remainder  in  cash  on  delivery  of  the  cargo. 
The  ship  loaded  the  coals  in  the  Bute  Docks,  at 
Cardiff,  and,  having  cleared  at  the  Custom 
House,  started  on  her  voyage  to  Bombay.  She 
proceeded  down  the  artificial  channel  leading 
from  the  docks  to  the  river  Taff,  and,  when 
about  300  yards  beyond  the  junction  of  the 
channel  with  the  river,  she  came  into  collision 
with  a  steamer,  and  was  so  much  injured  that 
she  was  compelled  to  return  the  next  day  to  the 
docks  for  repairs : — Held,  that  at  the  time  of 
the  collision  the  ship  was  not  outside  the  limits 
of  the  port,  in  the  popular,  business,  or  com- 
mercial sense  of  the  word ;  that,  consequently, 
she  had  not  finally  sailed  from  her  last  port ; 
and  that  no  freight  was  payable.    lb. 


4.  RATE  AND  AMOUNT. 

Measurement.] — Timber  was  consigned  to  the 
Surrey  Commercial  Docks  under  a  charterparty, 
by  which  freight  was  made  payable  "  for  deals 
and  battens,  per  St.  Petersburg  standard  hun- 
dred : " — Held,  that  freight  was  payable  only 
upon  the  number  of  such  hundreds  as  ascertained 
by  the  customary  mode  of  measurement  adopted 
by  the  dock  company  for  timber  cargoes.  Neuten 
v.  Neamt,  1  C.  &  B.  288— Mathew,  J. 

Goods  were  shipped  from  Wilmington  in  the 
United  States  for  Liverpool  under  a  charterparty, 
which  provided  that  freight  was  to  be  paid  on 
the  "  Wilmington  gross  intake  weight :  M — Held, 
that  the  freight  was  to  be  paid  according  to  the 
method  of  weighing  adopted  at  Wilmington. 
Fullagsen  v.  Walford,  1  C.  &  B.  198— Williams, 
J. 

Whether  Payable  for  Whole  Bay.] — A  charter- 
party  provided  that  the  hire  of  a  vessel  should 
commence  at  noon  of  a  certain  day,  and  freight 
was  payable  at  so  much  per  calendar  month ; 
and  "  at  and  after  the  same  rates  for  any  part  of 
the  month"  until  her  delivery  to  owners.  On 
the  day  the  hiring  terminated  she  was  delivered 
to  her  owners  at  5.30  p.m. : — Held,  that  the 
charterers  were  liable  for  freight  for  the  whole 
day,  commencing  at  noon  of  the  day  of  her  de- 
livery. Angier  v.  Stewart,  1  C.  &  B.  357 — Den- 
man,  J. 


5.  LIEN. 

Incorporation  of  Conditions  of  Charterparty.] 
— A  charterparty  contained  a  stipulation  in  the 
usual  form  for  payment  of  freight  at  the  rate  of 


1676 


SHIPPING— Demurrage. 


1976 


1/.  11*.  M.  per  ton ;  it  also  contained  a  clause 
that  the  shipowner  should  have  an  "absolute 
lien  on  the  cargo  for  freight,  dead  freight,  de- 
murrage, lighterage  at  port  of  discharge  and 
average  ; "  and  a  further  clause  that  the  captain 
was  to  sign  bills  of  lading  at  any  rate  of  freight ; 
"  but  should  the  total  freight  as  per  bills  of 
lading  be  under  the  amount  estimated  to  be 
earned  by  this  charter,  the  captain  to  demand 
payment  of  any  difference  in  advance."  Certain 
goods  were  put  on  board  the  chartered  ship,  and 
were  made  deliverable  to  the  plaintiffs  (who 
were  not  the  charterers)  by  a  bill  of  lading, 
whereby  freight  was  made  payable  at  22*.  62. 
per  ton;  the  bill  of  lading  contained  also  a 
clause,  whereby  it  was  provided  that  extra 
expenses  should  be  borne  by  the  receivers  and 
"other  conditions  as  per  charterparty."  Upon 
the  arrival  of  the  ship  at  the  port  of  discharge 
the  defendant,  who  was  the  shipowner,  claimed 
and  compelled  payment  of  freight  at  the  rate 
mentioned  in  the  charterparty.  The  plaintiffs 
having  sued  to  recover  back  the  difference  be- 
tween the  freight  as  specified  in  the  charterparty 
and  the  freight  as  specified  in  the  bill  of  lading : 
— Held,  that  the  bill  of  lading  did  not  incorpo- 
rate the  stipulation  in  the  charterparty  as  to  the 
payment  of  freight,  that  no  right  of  lien  existed 
for  the  freight  mentioned  in  the  charterparty, 
and  that  the  plaintiffs  were  entitled  to  delivery 
of  the  goods  upon  payment  of  the  freight  specified 
in  the  bill  or  lading.  Gardner  v.  Trechnuinn, 
15  Q.  B.  D.  154 ;  54  L.  J.,  Q.  B.  515;  53  L.  T. 
518  ;  5  Asp.  M.  C.  558— C.  A. 

Collision— Be-fhipment.]— The  K.,  which  was 
on  a  voyage  under  charter  from  Cardiff  to  Bom- 
bay with  coalB,  was  run  into  by  the  B.,  shortly 
after  leaving  Penarth  Docks.  The  K.,  which 
waa  considerably  damaged,  returned  to  Cardiff, 
where  her  cargo  was  taken  out  of  her  in  order 
that  she  might  be  repaired.  The  owners  of  the 
cargo  proposed  that  the  coals,  which  were  also 
damaged,  should  be  sold  and  a  fresh  cargo 
shipped.  The  shipowner,  however,  refused  to 
ship  a  fresh  cargo  except  "  on  fresh  terms  as  to 
freight,  fcc.,"  and  the  charterer,  without  inquir- 
ing what  the  fresh  terms  would  be,  reshipped 
the  damaged  cargo,  which  was  carried  to  Bom- 
bay : — Held,  that  the  shipowner,  having  a  lien 
on  the  cargo  for  freight,  was  entitled  to  insist 
on  the  original  cargo  being  reshipped  if  it  was 
capable  of  being  carried  to  its  destination,  and 
that  the  cargo-owner  was  not  entitled  to  insist 
on  its  delivery  without  payment  of  freight.  The 
Blenheim,  10  P.  D.  167  ;  54  L.  J.,  P.  81  ;  53 
L.  T.  916 ;  34  W.  B.  154 ;  5  Asp.  M.  C.  522— 
Hanaen,  P. 


X    DEXUBJLA0X. 

Effect  of  Bill  of  Lading.]— &*  GnUieTuen  v. 
Stewart,  ante,  coL  1665. 

liability  of  Indorsee  of  BUI  of  Lading.]— See 

Allen  v.  Coltart,  ante,  col.  1663. 

Lay  Days— Usual  Plaoe  of  Discharge— Custom 
to  lighten  Vessel.]— By  a  charterparty  it  was 
agreed  that  the  plaintiff's  steamship  should  pro- 
ceed to  Cronstadt  and  load  a  cargo  of  wheat, 
and  therewith  proceed  to  a  port  in  the  English 
or  Bristol  Channel  as  ordered,  "or  so  near 


thereto  as  she  may  safely  get  at  all  times  of 
tide  and  always  afloat,  and  deliver  the  same. 
Eight  running  days,  Sunday  excepted,  to  be 
allowed  the  merchants,  if  the  ship  be  not  sooner 
despatched,  for   loading  and  discharging  the 
steamer,  and  ten  days  on  demurrage  if  required 
over  and  above  the  laying  days  at  252.  per  day." 
The  steamer  arrived  at  Cronstadt,  occupied  six 
running  days  in  loading  a  cargo  of  4,325  quarters 
of  wheat,  and  was  ordered  to  Gloucester,  Bristol 
Channel,  for  discharge.    She  arrived  at  Sharp* 
nese  Dock  in  the  Bristol  Channel  on  the  13th 
of  November.    Sharpness  Dock  is  within  the 
port  of  Gloucester,  and  about  seventeen  miles 
from  the  basin  within  the  city  of  Gloucester 
where  grain  cargoes  are  usually  discharged  if 
the  burthen  of  the  ship  will  admit  The  steamer 
was  ready  to  commence  the  discharge  of  her 
cargo  on  the  13th,  but  could  not  get  nearer  to 
Gloucester  than  Sharpness,  until  part  of  her 
cargo  was  first  discharged  at  Sharpness.   On 
the  14th  and  15th  of  November  the  consignees 
discharged  into  lighters  1,585  quarters  of  the 
cargo,  and  then  required  the  master  to  take  the 
steamer  through  the  canal  to  a  place  of  dis- 
charge within  the  basin  at  Gloucester.    The 
master  proceeded,  and  arrived  in  the  basin  on 
the  17th.    On  the  18th  the  residue  of  the  cup) 
was  discharged  and  the  vessel  returned  to  Sharp- 
ness, where  she  arrived  on  the  19th.     In  an 
action  for  demurrage,  evidence  was  given  of  t 
custom  of  the  port  of  Gloucester,  according  to 
which  the  usual  place    of    discharging  grain- 
cargoes  was  at  the  basin  within  the  city,  and 
when   vessels  with  grain-cargoes  destined  for 
Gloucester  were  of  too  heavy  a  burthen  to  come 
up  the  canal  they  were  lightened  at  Sharpness, 
and  during  the  discharge  at  Sharpness  of  so 
much  of  the  cargo  as  it  was  necessary  to  dis- 
charge in  order  to  enable  the  vessel  to  proceed 
by  the  canal  to  Gloucester  basin,  the  lay  days 
counted,  but  the  time  occupied  by  coming  up 
the  canal  to  discharge  at  Gloucester  basin  and 
by  returning  to  Sharpness  was  not  counted  :— 
Held,  first,  that  the   custom  was  reasonable; 
secondly,  that  it  was  not  inconsistent  with  the 
express   provision   in    the    charterparty  as  to 
"  running  days,"  and  that  the  time  occupied  by 
the  vessel  in  going  from  Sharpness  to  the  basm 
and  in  returning  to  Sharpness  ought  to  he  ex- 
cluded from  the  lay  days,  and  the  piaintifls 
were  entitled  to   one   day's   demurrage  only* 
Brown  v.  Johnson  (10  M.  &  W.  331)  disenssti 
Nielsen  v.  Wait,  16  Q.  B.  D.  67  ;  55  L.  J.,  Q.  B. 
87 ;  54  L.  T.  344 ;  34  W.  B.  33 ;  *  Asp,  M.  G 
553— C.  A. 

Wegleet  by  Charterer  to  Name  Beady  Qwj 
Berth.] — By  a  charterparty  it  was  agreed  that 
the  plaintiff's  vessel  after  loading  a  certain 
cargo  should  proceed  "to  London  or  Tyne  dock 
to  such  ready  quay  berth  as  ordered  by  the 
charterers,"  "  demurrage  to  be  at  the  rate  of  30J. 
per  running  day,"  in  no  case  unless  in  berth 
before  noon  were  the  lay  days  to  count  before 
the  day  following  that  on  which  the  vessel  was 
in  berth,  and  the  captain  or  owners  were  to 
have  an  absolute  lien  on  the  cargo  for  all  freight 
and  demurrage  in  respect  thereof. — The  vessel 
was  ordered  by  the  charterers  to  a  certain 
London  dock,  but  when  the  vessel  arrived  at  such 
dock  there  was  no  quay  berth  ready  for  her,  sad 
she  was  consequently  detained  one  day  beyond 
the  time  required  for  discharging  her,  had  sbt 


1677 


SHIPPING— POoto^e  and  Pilot*. 


1678 


been  able  to  have  got  alongside  a  quay  berth  on 
her  arrival  in  the  dock : — Held,  on  the  con- 
struction of  this  charterparty,  that  the  charterers 
were  bound  to  name  such  quay  berth  as  was 
ready,  and  that  for  the  detention  caused  by  the 
charterers  neglecting  to  do  so  the  plaintiffs  were 
entitled  to  a  lien  on  the  cargo  for  demurrage, 
the  damage  for  the  detention  being  sufficiently 
in  the  nature  of  demurrage  to  come  within  the 
demurrage  clause.  Hmrris  v.  Marcus  Jacob*, 
15  Q.  B.  D.  247  ;  54  L.  J.,  Q.  B.  492 ;  64  L.  T. 
61 ;  6  Asp.  M.  C.  530— C.  A. 

Charterer's  Option  to  order  Ship  to  one  of 
several  Places  in  Bosk — Discharge  of  Cargo.] — 
By  the  terms  of  a  charterparty  the  ship  was  to 
load  from  the  charterer's  agents  at  Cardiff  a 
cargo  of  coals,  "and  therewith  proceed  to  Dieppe 
and  deliver  the  same  alongside  consignee's  or 
railway  wharf,  or  into  lighters,  or  any  vessel  or 
wharf  where  she  may  safely  deliver,  as  ordered, 
cargo  to  be  loaded  and  discharged  in  forty-eight 
ruining  hours,  &c.  Demurrage  over  and  above 
the  said  lying  time  at  10*.  per  hour."  The  ship 
arrived  in  the  dock  at  Dieppe,  and  was  ordered 
to  discharge  at  the  railway  wharf,  but  in  con- 
sequence of  all  the  discharging  berths  being 
occupied,  she  was  not  berthed  at  the  railway 
wharf  until  twenty-four  hours  after  her  arrival 
in  the  dock.  In  an  action  by  shipowner  against 
charterers  for  demurrage: — Held,  that  the 
voyage  was  not  completed,  and  the  lay-days 
did  not  commence  under  the  charterparty  until 
the  ship  was  berthed  at  the  railway  wharf,  and 
therefore  that  the  defendants  were  not  liable  to 
pay  demurrage  for  delay  in  respect  of  the  period 
which  elapsed  between  the  ship's  arrival  in  the 
dock  at  Dieppe  and  her  being  berthed  at  the 
railway  wharf.  Murphy  v.  Coffin,  12  Q.  B.  D. 
37 ;  32  W.  B.  616— D. 

Lay-days  —  Computation,]  —  A  charterparty 
provided  that  the  vessel  should  proceed  to  Malta 
for  orders,  which  were  to  be  given  from  London 
within  twenty-four  hours  after  receipt  of  notice, 
or  lay-days  to  count : — Held,  that  orders  not 
having  been  given  within  the  prescribed  time, 
the  lay-days  did  not  begin  to  count  till  the 
expiration  of  the  twenty-four  hours.  Bryden 
v.  NUbuKr,  IC.dcS.  241— Stephen,  J. 

"frost  preventing  Loading."}— By  a  charter- 
party  a  ship  was  to  proceed  to  Cardiff,  East  Bute 
dock,  and  there  load  in  the  customary  manner 
from  the  agents  of  the  freighters  a  cargo  of  iron. 
44  Cargo  to  be  supplied  as  mat  as  steamer  can  re- 
ceive. ....  Time  to  commence  from  the  vessel 
being  ready  to  load  and  unload  and  ten  days,  on 
deoMxrage,  over  and  above  the  said  lay  days,  at 
402.  per  day.  (Except  in  case  of  hands  striking 
work,  or  frosts  or  floods,  or  any  other  unavoidable 

accidents  preventing  the  loading ; 

in  which  case  owners  to  have  the  option  of  em- 
ploying the  steamer  in  some  short  voyage  trade 
until  receipt  of  written  notice  from  charterers 
that  they  are  ready  to  resume  employment  with- 
out delay  to  the  ship.)11  The  ship  arrived  at  the 
Bast  Bute  dock,  and  loaded  part  of  her  cargo.  A 
frost  then  set  in,  and  made  a  canal  which  com- 
municated with  the  dock  impassable,  so  that  the 
remainder  of  the  cargo  which  was  ready  at  a 
wharf  on  the  canal  could  not  for  several  days  be 
brought  in  lighters  to  the  dock.  The  cargo  could 
not  have  been  brought  into  the  dock  by  carting 


or  otherwise  at  any  reasonable  expense.  The 
dock  itself  was  not  frozen  over,  and  if  the  cargo 
had  been  in  the  dock  the  loading  might  have 
proceeded  : — Held,  that  the  frost  did  not  "  pre- 
vent the  loading"  within  the  meaning  of  the 
exception.  Grant  v.  Coverdaley  9  App.  Cas. 
470 ;  53  L.  J.,  Q.  B.  462 ;  51  L.  T.  472 ;  32 
W.  R.  831 ;  5  Asp.  M.  C.  353— H.  L.  (B.). 

"  Strike  "  —  "  Hands  striking  work."] — 
The  term  "  strike "  in  a  charterparty  must  be 
used  in  the  ordinary  sense  of  strike  against 
employers.  The  abandonment  of  their  work  by 
miners  through  dread  of  cholera  does  not  bring 
the  charter  of  a  ship  within  the  exception  in  a 
charterparty  against  "  hands  striking  work  "  so 
as  to  relieve  him  from  payment  of  demurrage. 
Stephens  v.  Harris,  56  L.  J.f  Q.  B.  516  ;  57  L.  T. 
618 ;  6  Asp.  M.  C.  192— D.  Affirmed  on  other 
grounds,  infra. 

Customary  Manner  of  Loading— Construction 
of  Charterparty  with  reference  to  Pert  of  Load- 
ing.] —  By  a  charterparty  the  ship  was  to  pro- 
ceed to  Bilbao,  and  there  load  in  the  customary 
manner  in  regular  steamer  turn,  where  and 
as  ordered  by  the  agent  of  the  freighter,  a 
cargo  of  iron  ore  ;  four  hundred  tons  per  work- 
ing day,  weather  permitting,  to  be  allowed  for 
loading,  and  all  demurrage  over  and  above  the 
said  days  at  the  rate  of  12*.  6d.  per  hour,  no 
demurrage  to  be  paid  in  case  of  any  hands 
striking  work,  frosts,  or  floods,  which  might 
hinder  the  loading  of  the  vessel.  The  port  of 
Bilbao  was  on  a  river  where  there  were  a 
number  of  wharves,  and  the  iron  ore  was 
brought  down  to  the  wharves  by  railways  from 
storing  places  five  miles  off,  and  loaded  direct 
from  the  railway  trucks  into  the  ship  by  means 
of  shoots,  there  being  no  storing-places  at  the 
wharves.  Ships,  however,  were  sometimes 
loaded  while  lying  out  in  the  river  from  barges 
which  brought  the  ore  from  storing-places 
higher  up  the  river.  The  ship  was  ordered  to 
San  Nicolas  wharf  to  load,  and  she  was  there 
loaded  under  a  shoot  with  ore  brought  down  by 
rail  as  above-mentioned.  In  consequence  of 
heavy  rains  at  the  storing-places,  and  in  conse- 
quence of  the  men  who  were  loading  the  ore 
into  the  railway  trucks  there  refusing  to  work 
from  fear  of  the  cholera,  delay  occurred  and  the 
ship  was  detained  waiting  for  her  cargo : — 
Held,  without  deciding  whether  the  refusal  of 
the  men  to  work  came  within  the  exception  in 
the  demurrage  clause  of  "  hands  striking  work," 
that  neither  the  state  of  the  weather  nor  the 
refusal  of  the  men  to  work  hindered  the  "  load- 
ing'* inasmuch  as  both  those  causes  of  delay 
operated  before  the  ore  arrived  at  the  place  of 
loading,  and  the  nature  of  the  port  was  not 
such  that  the  only  possible  mode  of  loading  the 
ship  was  by  bringing  the  ore  by  railway  from 
the  storing-places  five  miles  off,  so  as  to  bring 
the  case  within  the  decision  in  Hudson  v.  Ede 
(3  L.  R.,  Q.  B.  412).  Stephens  v.  Harris,  57 
L.  J.,  Q.  B.  203— C.  A. 


XI.    PILOTAGE  AVD  PILOTS. 

1.    EXEMPTIONS  FROM  EMPLOYING. 

"  Loading"— *6  4  tt  Viet.   e.  68,  s.  41.]— 

The  word  "loading"  in  25  &  26  Vict  c.  63 


1679 


SHIPPING— Pilotage  and  Pilots. 


1680 


s.  41,  does  not  refer  to  the  taking  on  board  of 
cargo  only.  Therefore  when  a  steamer  anchored 
in  Dartmouth  Harbour,  and  took  on  board  20 
tons  of  coal  for  the  purposes  of  the  voyage,  and 
was  bound  from  a  place  out  of  the  outport 
district  to  a  destination  also  out  of  it : — Held, 
that  she  was  not  exempt  from  the  obligation  to 
employ  a  pilot.  The  Winston,  9  P.  D.  85  ;  53 
L.  J.,  P.  69  ;  51  L.  T.  183  ;  5  Asp.  M.  C.  274- 
C.  A.    Affirming  31  W.  R.  892— Hannen,  P. 

Humber  Dock.] — A  collision  occurred  in  the 
Humber  Dock,  Hull,  between  a  fly-boat  and 
a  foreign  schooner  bound  to  the  Prince's  Dock. 
The  schooner  was  in  charge  of  a  duly  licensed 
Humber  pilot,  who  had  taken  over  the  charge 
of  the  schooner  while  she  was  moored  at  a 
pier  in  the  Humber  from  the  pilot  who  had 
brought  her  in  from  sea.  One  sum  was  paid 
for  the  services  of  the  two  pilots : — Held,  that 
the  schooner  was  in  charge  of  a  pilot  whose 
employment  was  compulsory  by  law.  The 
Rigborgs  Minde,  8  P.  D.  132  ;  52  L.  J.,  P.  74  ; 
49  L.  T.  232 ;  5  Asp.  M.  C.  123— C.  A. 

River  Tyne— Foreign  Vessels.]— Under  the 
Tyne  Pilotage  Order  Confirmation  Act,  1865, 
Sched.,  s.  16,  pilotage  is  not  compulsory  on 
foreign  vessels  entering  the  Tyne.  The  Johann 
Sverdrup,  12  P.  D.  43  ;  56  L.  J.,  P.  63  ;  56  L.  T. 
256  ;  35  W.  R.  300  ;  6  Asp.  M.  C.  73— C.  A. 

London  District—" Ship  trading"  to  Place 
Worth  of  Boulogne.]- By  the  Merchant  Ship- 
ping Act,  1854  (17  &  18  Vict.  c.  104),  s.  379, 
ships  trading  to  any  place  in  Europe  north 
of  Boulogne  are,  when  not  carrying  passengers, 
exempted  from  compulsory  pilotage  in  the  Lon- 
don district.  A  British  ship  was  one  of  a  line  of 
vessels  making  regular  voyages  from  London  to 
Japan  and  ports  in  the  East,  and  back  to  London, 
and  thence  to  ports  in  Europe  north  of  Boulogne 
and  back  to  London.  On  a  return  voyage  from 
the  East  she  went,  as  usual,  to  London.  She 
there  discharged  part  of  her  cargo  and  her 
crew,  and  then,  with  the  bulk  of  the  cargo 
and  a  crew  of  runners,  but  without  passengers, 
proceeded  to  Holland : — Held,  that  she  was  a 
ship  "  trading  to  "  a  place  north  of  Boulogne, 
ana  therefore  exempted  from  compulsory  pilot- 
age in  the  London  district.  Courtney  v.  Cole,  19 
Q.  B.  D.  447  ;  56  L.  J.,  M.  C.  141  ;  67  L.  T.  409 ; 
36  W.  R.  8  ;  52  J.  P.  20  ;  6  Asp.  M.  C.  169— D. 

By  the  Merchant  Shipping  Act,  1854  (17  & 
18  Vict.  c.  104),  s.  379,  sub-s.  3,  the  following 
ships  when  not  carrying  passengers  shall  be 
exempted  from  compulsory  pilotage  in  the  Lon- 
don district — that  is  to  say,  ships  trading  to 
Boulogne,  or  to  any  place  in  Europe  north  of 
Boulogne.  A  vessel  while  on  a  voyage  from 
Liverpool  to  Hamburg  was  obliged  by  an 
accident  to  put  into  the  Thames  for  repairs  :— 
Held,  that  she  was  exempted  by  s.  879  from 
taking  a  pilot  in  the  London  district.  The 
Sutherland,  12  P.  D.  154  ;  56  L.  J.,  P.  94  ;  67 
L.  T.  631 ;  36  W.  R.  13  ;  6  Asp.  M.  C.  181— D. 


2.  EXEMPTION  OF  OWNERS  FROM 
LIABILITY. 

Collision— Boles  for  navigation  of  Danube.] 
-By  arts.  85,  89,  and  92  of  the  International 


Rules  for  the  Navigation  of  the  Danube,  pilotage 
is  compulsory  in  the  case  of  a  vessel  navigating 
the  Danube,  but  the  master  of  such  a  Teasel  is 
not  required  to  give  up  the  navigation  of  it  to 
the  pilot  Where,  therefore,  the  master  of  such 
a  vessel  has  in  fact  given  up  the  navigation  of 
it  to  a  pilot,  the  owners  remain  answerable  for 
damage  caused  by  the  improper  navigation  of 
the  pilot.  The  Agnes  Otto,  12  P.  D.  56;  66 
L.  J.,  P.  45  ;  56  L.  T.  746  ;  35  W.  B.  550 ;  6  Asp. 
M.  C.  119— Butt,  J. 


Pilotage  Regulations  for  River 
of  Havre.] — Although  the  employment  of  a  pilot 
by  a  vessel  entering  the  port  of  Havre  is  by 
French  law  compulsory,  such  pilot  does  not  as 
of  right,  as  is  the  case  in  England,  supersede  the 
master  and  take  charge  of  the  ship,  but  accord- 
ing to  French  decisions  the  master  remains  in 
charge,  the  pilot  being  merely  his  adviser. 
Hence,  though  the  master  may  allow  such  pilot 
to  take  charge  in  fact,  the  owners  are  not  ex- 
empted  from  liability  for  damage  done  to 
another  ship  by  the  negligence  of  the  pilot 
The  Augusta,  57  L.  T.  326  ;  6  Asp.  M.  C.  161- 
O.  A. 

Default  of  Pilot,  what  is.] — Damage  was  done 
by  the  fluke  of  a  schooner's  anchor  piercing  the 
side  of  the  fly-boat.  The  court  found  that  there 
was  no  want  of  care  in  the  crew  in  lowering  the 
anchor.  The  other  allegations  against  the 
schooner  were  that  the  anchor  was  improperly 
slung  ;  that  she  came  too  fast  up  the  dock  and 
without  a  check  rope  : — Held,  that  the  damage 
was  caused  by  the  fault  of  the  pilot  in  the 
course  of  his  duty.    The  Rigborgs  Minde,  supri 

light  Exhibited  by  Pilot's  Orders. }- 

The  steamship  R.,  in  tow  of  a  steamtng  which 
was  turning  her  in  the  river  Humber,  was,  under 
the  directions  of  a  pilot,  who  was  on  board  her 
by  compulsion  of  law,  exhibiting,  in  addition  to 
her  masthead  light  and  red  and  green  side  lights, 
an  anchor  light  which  was  hoisted  at  the  main 
peak.  In  these  circumstances  she  was  run  into 
by  the  steamship  E. : — Held,  that  the  exhibition 
of  the  anchor  light  was  a  breach  of  the  Humber 
rules  which  might  by  possibility  have  contributed 
to  the  collision  ;  that  the  master  of  the  R.  was 
responsible  for  such  breach  of  a  statutory  regu- 
lation as  to  lights,  and  that  the  owners  could  not 
therefore  escape  liability  on  the  ground  of  com* 
pulsory  pilotage.  The  Ripon,  10  P.  D.  66; 
54  L.  J.,  P.  56  ;  52  L.  T.  438  ;  33  W.  R.  659 ; 
5  Asp.  M.  O.  365— Butt,  J. 

Responsibility  of  Pilot  for  getting  under  Way 
—Suggestions  by  Master.]— Where  a  vessel  is  in 
charge  of  a  pilot  by  compulsion  of  law,  there  is 
no  duty  on  the  master  to  prevent  her  from  being 
got  under  way  in  obedience  to  an  order  of  the 
pilot,  unless  such  a  proceeding  is  manifestlv 
dangerous.  The  defendants'  vesBel  was  oompul- 
sorily  in  charge  of  a  duly  licensed  pilot,  and  was 

got  under  way  when  the  weather  was  thick  and 
azy,  but  vessels  could  be  seen  at  300  yards* 
distance : — Held,  that  the  defendants  were  not 
responsible  for  damage  caused  by  the  vessel 
being  under  way.  While  the  defendants1  vessel 
was  approaching  that  of  the  plaintiffs,  the 
master  expressed  his  opinion  that  her  helm 
should  be  starboarded.  The  pilot  gave  the 
order,  and   in  consequence  of   it   a  collision 


1681 


SHIPPING— Cottuion. 


1682 


occurred : — Held,  that  the  defendants  were  not 
responsible  for  the  damage  caused  by  the  col- 
lision. The  Loch  Libo  (3  W.  Rob.  310)  ap- 
proved The  Oakfield,\\  P.  D.  34;  55  L.  J., 
P.  11 ;  54  L.  T.  578  ;  34  W.  R.  687  ;  5  Asp.  M.  C. 
575— Hannen,  P. 

Damage  to  Oyster  Beds.] — A  ship  in  charee 
of  a  compulsory  pilot  was  at  high  water  brought 
into  and  anchored  by  the  pilot  in  a  river  in  which 
there  were  oyster  beds,  the  existence  of  which 
was  known  to  the  pilot.  The  place  where  she 
was  anchored  was  not  the  usual  and  customary 
place  for  vessels  of  her  size  and  draught  w 
anchor  in.  At  low  water  she  grounded,  and 
thereby  did  damage  to  an  oyster  bed.  On  notice 
of  the  existence  of  the  oyster  bed  being  given 
to  the  master,  he  took  all  reasonable  means  to 
remove  the  ship  as  speedily  as  possible,  in  an 
action  by  the  lessee  of  the  oyster  bed  against 
the  shipowner  and  the  pilot : — Held,  that  the 
act  of  the  pilot  in  anchoring  the  ship  where  he 
did  was  negligence  which  made  him  liable,  but 
that  the  ship  was  not  liable  because  the  master's 
dnty  on  receiving  notice  of  the  existence  of  the 
oyster  bed  was  to  take  all  reasonable  measures — 
not  extraordinary  measures — to  remove  his  ship, 
and  this  he  had  done.  The  Octavia  Stella,  57 
L.  T.  632 ;  6  Asp.  M.  C.  182— Hannen,  P. 


3.  OTHER  MATTERS  RELATING  TO. 

Pilotage  or  Salvage.]— &i  The  Monarch  and 
The  Aglaia,  post,  col.  1703. 

Charges — Rates  on  River  Thames.]— A  pilot 
who  brings  a  ship  from  Gravesend  to  the  entrance 
of  the  Tilbury  Bocks,  and  thence  into  the  docks, 
is  not  entitled  under  the  Order  in  Council  of 
May  17,  1882,  to  the  special  charge  "  for  re- 
moving a  vessel  from  moorings  into  a  dry  or  wet 
dock,"  or  to  charge  any  sum  other  than  the  rate 
from  Gravesend  to  Northfleet.  The  Clan  Grant, 
12  P.  D.  139  ;  56  L.  J.,  P.  62  ;  57  L.  T.  124  ; 
35  W.  R.  670  ;  6  Asp.  M.  C.  144— Butt,  J. 

Certificate— Refusal  of  Pilotage  Authority  to 
lewis.] — A  pilotage  authority  has  an  absolute 
discretion  under  the  Merchant  Shipping  Act, 
1854,  g.  341,  to  refuse  to  renew  a  pilotage 
certificate  granted  to  the  master  or  mate  of 
a  ship  under  s.  340.  Reg.  v.  Trinity  House 
Corporation,  35  W.  R.  835— D. 

Liability  of  Pilot  for  Negligence.]—*^  The 
Oetama  Stella,  supra. 


XII.    C0LLI8I0N. 

1.    ON  THE   HIGH   SEAS. 

a.  Regulation*  generally. 

Infringement  of— Presumption  of  Culpability.] 
— By  the  true  construction  of  the  Merchant 
Shipping  Act,  1873,  8. 17,  a  British  ship  cannot 
be  pronounced  in  fault  merely  by  reason  of  its 
non-observance  of  a  maritime  regulation.  A 
presumption  of  culpability  in  case  of  collision 
thence  arises,  but  such  presumption  may  be  met 
by  proof  that  the  infringement  could  not  by  any 


possibility  have  contributed  thereto.  TJie  Fanny 
M.  Carvill,  13  App.  Cas.  455,  n. ;  32  L.  T.  646  ; 
2  Asp.  M.  C.  565— P.  C. 

Where  a  ship  infringed  art.  3  of  the  Sailing 
Regulations  by  carrying  her  side-lights  with 
screens  shorter  than  the  length  prescribed 
thereby,  but  it  was  proved  that  such  breach  of 
the  regulation  could  not  possibly  have  contri- 
buted to  the  collision :— Held,  that  the  ship 
could  not  be  deemed  to  be  in  fault.    lb. 

Where  a  ship  carried  a  bright  light  of  such  a 
character  as  to  be  visible  at  three  miles'  distance, 
which  though  fixed  in  the  rigging  was  not  shown 
to  have  been  intercepted  by  the  clew  of  the  fore- 
sail or  otherwise  : — Held,  there  was  no  breach 
of  maritime  regulations,  art.  3  (ft)  and  s.  3,  and 
therefore  no  presumption  of  culpability  on  the 
part  of  such  ship,  according  to  the  principle  laid 
down  in  The  Fanny  M.  Carvill  (13  App.  Cas. 
455,  n.),  as  contributing  to  the  collision  in  re- 
spect of  which  she  sued.  The  Glamorganshire, 
13  App.  Cas.  454  ;  59  L.  T.  572— P.  C. 

Where  there  has  been  a  departure  from  an 
important  rule  of  navigation,  if  the  absence  of 
due  observance  of  the  rule  can  by  any  possibility 
have  contributed  to  the  accident,  then  the  party 
in  default  cannot  be  excused.  Where  the  lights 
of  the  complaining  vessel  were  not  properly 
burning,  and  were  not  visible  on  board  the  other 
vessel : — Held,  that  in  the  absence  of  proof  that 
this  latter  was  also  to  blame,  the  suit  must  be 
dismissed.  Emery  v.  Cichero,  The  Arkloto,  9 
App.  Cas.  136  ;  53  L.  J.,  P.  C.  9  ;  50  L.  T.  305  ; 
5  Asp.  M.  C.  219— P.  C. 

Art.  10  (a)  of  the  Regulations  for  Preventing 
Collisions  at  Sea,  1884,  requiring  all  fishing 
vessels  of  20  tons  net  and  upwards,  "when 
under  way,''  to  carry  the  ordinary  lights  of  a 
vessel  under  way,  unless  required  by  other 
regulations  to  carry  the  lights  therein  pre- 
scribed, is  applicable  to  trawlers  whilst  engaged 
in  trawling  and  in  motion.  Where  a  steamship 
having  come  into  collision  with  a  trawler,  which, 
in  violation  of  the  regulations  for  preventing 
collisions  at  sea,  was  carrying  a  white  masthead 
light  in  addition  to  side-lights,  and  it  appeared 
that  those  on  board  the  steamship  had  not  seen 
the  white  light,  the  court  refused  to  hold  the 
trawler  to  blame  for  the  breach  of  the  regula- 
tions, on  the  ground  that  it  could  not  possibly 
have  contributed  to  the  collision.  The  Chusan, 
53  L.  T.  60  ;  5  Asp.  M.  C.  476— Butt,  J. 

Competent  8eaman— Discovery  that  Regula- 
tions applicable.] — A  ship  failing  to  obey  one  of 
the  regulations  for  preventing  collisions  whereby 
a  collision  occurs,  is  not  to  be  deemed  to  be  in 
fault  within  the  Merchant  Shipping  Act,  1873 
(36  &  37  Vict.  c.  85),  s.  17,  if  the  circumstances 
were  such  that  a  competent  seaman  exercising 
reasonable  care  could  not  have  discovered  that 
the  regulation  was  in  fact  applicable.  Baker  v. 
The  Theodore  H.  Band.  The  Theodore  H.  Rand, 
12  App.  Cas.  247  ;  56  L.  J.,  P.  65  ;  56  L.  T.  343  ; 
S5  W.  R.  781  ;  6  Asp.  M.  C.  122— H.  L.  (E.). 

Of  two  sailing  ships  approaching  one  another, 
the  S.  was  running  free  and  the  T.  was  close- 
hauled  on  the  port  tack.  It  was  therefore  the 
duty  of  the  T.  to  keep  her  course  in  accordance 
with  arts.  14,  22,  of  the  Regulations  for  Prevent- 
ing Collisions  at  Sea  (1884),  but  those  navigating 
the  T.,  in  the  belief  that  the  S.  was  close-hauled 
on  the  starboard  tack,  ported,  whereby  a  collision 
occurred : — Held,  that  since  with  ordinary  skill 


1688 


SHIPPING— CoOuion. 


1684 


and  by  the 'exercise  of  reasonable  care  those 
navigating  the  T.  could  not  have  ascertained 
that  the  S.  was  running  free,  the  T.  was  not  to 
be  deemed  to  be  in  fault  within  the  Merchant 
8hipping  Act,  1873  (36  k  37  Vict.  c.  85),  s.  17. 
lb. 

b.  Light*. 

Overtaking  and  Overtaken  Ships  —  Stern 
light.]— Where  one  of  two  ships  is  abaft  the 
beam  of  the  other  in  such  a  position  that  the 
hinder  ship  cannot  see  the  side-lights  of  the 
leading  ship,  and  the  former  is  going  at  a 
greater  speed  than  the  latter,  and  getting  nearer 
to  her,  the  latter  is  a  "  ship  which  is  being  over- 
taken by  another  "  within  the  meaning  of  art  11 
of  the  Regulations  for  Preventing  Collisions  at 
Sea,  even  though  the  hinder  ship  broadens  on 
her  quarter;  and  she  is  in  such  circumstances 
bound  to  show  a  stern-light  in  sufficient  time  to 
enable  the  other,  by  the  exercise  of  reasonable 
precautions,  to  avoid  risk  of  collision.  The  Main, 
11  P.  D.  132  ;  55  L.  J.,  P.  70  ;  55  L.  T.  15  ;  84 
W.  R.  678 ;  6  Asp.  M.  C.  37— C.  A. 


Stern  Light— Character  and  Position.]— 


Art.  11  of  the  Regulations  for  Preventing  Colli- 
sion at  Sea — which  directs  that  a  ship  which  is 
being  overtaken  by  another  shall  show  from  her 
stern  to  such  last-mentioned  ship  a  white  light 
or  a  flare-up  light — is  infringed  if  such  light  is 
carried  in  any  way  other  than  is  necessary  to 
warn  overtaking  vessels.  Where  therefore  such 
light  is  so  placed  or  carried  as  to  be  visible  over 
part  of  the  area  of  a  side-light  it  must  be  taken 
that  there  is  a  breach  of  art.  11.  The  Palinuru*, 
13  P.  D.  14  ;  57  L.  J.,  P.  21 ;  58  L.  T.  533  ;  36 
W.  R.  768— Hannen,  P.  Affirmed  37  W.  R.  266 
— C.A. 

In  an  action  for  collision  it  appeared  that  one 
of  a  pair  of  ordinary  binnacle  lamps  in  the  plain- 
tiffs' vessel  was  temporarily  removed  from  its 
place  and  used  as  a  stern-light : — Held,  that  in 
the  absence  of  affirmative  evidence  of  its  effi- 
ciency on  the  particular  occasion  it  could  not  be 
deemed  to  be  such  a  light  as  is  required  by  art. 
11  of  the  Regulations  for  Preventing  Collisions 
at  Sea.  The  Patroclus,  13  P.  D.  54  ;  58  L.  T. 
774 ;  36  W.  R.  928 ;  6  Asp.  M.  C.  285— Hannen, 
P. 

A  smack  with  her  trawl  down  had  a  globular 
white  light  exhibited  from  her  weather  cross- 
tree  partially  hidden  from  overtaking  vessels  by 
her  sails,  and  did  not  exhibit  any  other  white 
light  or  flare-up  to  an  overtaking  steamer : — 
Held,  that  this  was  an  infringement  of  art.  11. 
The  Pacific,  9  P.  D.  124  ;  53  L.  J.,  P.  66  ;  51 
L.  T.  127 ;  33  W.  R.  124  ;  5  Asp.  M.  C.  263— 
Butt,  J. 

Stern  Light— Length  of  Time  visible.] — 

By  art.  11  a  ship  which  is  being  overtaken  by 
another  shall  show  from  her  stern  to  such  last- 
mentioned  ship  a  white  light  or  a  flare-up  light : 
— Held,  that  such  light  must  be  shown  not  once 
and  for  a  short  time  only,  but  from  time  to  time 
while  the  ship  is  "  being  overtaken  "  within  the 
meaning  of  the  article.  The  Essequibo,  13  P.  D. 
51 ;  57  L.  J.,  P.  29 ;  68  L.  T.  696  ;  6  Asp.  M.  C. 
276— Hannen,  P. 

Vessel  under  Way— Stationary  Vessel.]— A 


steam  trawler,  whilst  engaged  in  trawling  at  the 
rate  of  2\  knots  an  hour  through  the  water  sad 
4J  knots  an  hour  over  the  ground,  canyiog  a 
single  white  light,  was  run  down  by  the  D,; 
it  being  admitted  that  the  D.  was  to  blame, 
the  question  arose  whether  the  trawler  was  not 
also  to  blame  for  not  carrying  side-lights:— 
Held,  that  the  trawler  was  also  to  blame,  ana 
she  was  a  vessel  under  way,  and  therefore  sub- 
ject to  ait  3  of  the  Regulations  for  Preventing 
Collision*  at  Sea,  1880,  and  not  to  art  9  of  the 
Regulations  for  Preventing  Collisions  at  Set, 
1863,  substituted  by  Order  in  Council,  1880,  for 
art.  10  of  the  Regulations  of  1880 :— Held,  oa 
appeal,  that  the  decision  was  right ;  bat  on  the 
ground  that  though  the  trawler  was  one  of  a 
class  of  vessels  within  art  9  of  the  Regulations 
of  1863,  she,  in  order  to  be  u  stationary  "  within 
the  meaning  of  that  article,  was  bound  not  to  go 
faster  than  was  necessary  to  keep  herself  node? 
command  whilst  fishing,  and  that  as  her  apeai 
was  greater  than  was  necessary  for  so  doing,  ate 
was,  at  the  time  of  the  collision,  within  ait  3  of 
the  Regulations  of  1880.    The  2**4*,  9  P.  a 
164  ;  53  L.  J.,  P.  81 ;  51  L.  T.  214;  32W.H 
970 ;  5  Asp.  M.  C.  304— C.  A. 

Light  partially  Obscured.]- At  the  trial 


of  an  action  for  damage  by  collision,  it  appeared 
that  the  starboard  light  of  the  plaintinV  vend 
was  obscured  by  the  cathead  to  an  extent  of 
from  2J  to  3  degrees  ;  but  that  with  this  excep- 
tion her  side-lights  showed  an  unbrokeB  light 
over  10  points  of  the  horizon  : — Held,  that  there 
was  no  such  infringement  of  art  3  of  the  Bega- 
lations  for  Preventing  Collisions  at  Sea  as  to 
oblige  the  court,  under  the  Merchant  Shipping 
Act,  1873,  s.  17,  to  hold  the  vessel  to  blame  for 
the  collision.  The  Fire  Queen,  12  P.  D.  147 ;  56 
L.  J.,  P.  90  ;  57  L.  T.  312  ;  36  W.  R.  15  ;  6  Asp. 
M.  C.  146— Butt,  J. 

Approaching  Vessel  —  Flare-up  lights,}— A 

sailing  vessel  having  a  steamship  approaching  on 
her  starboard  bow  at  night,  burnt  flare-up  Ugh* 
to  attract  her  attention :— Held,  that  the  barring 
of  a  flare  is  not  forbidden  by  art  2  of  the  regu- 
lations. Held  further,  that  whether  a  vessel  ■ 
to  blame  or  not  for  showing  a  flare-up  tight 
must  depend  upon  whether  or  not  the  exhibition 
of  the  flare  is  calculated  to  mislead.  The  ifrr- 
chant  Prince,  10  P.  D.  139  ;  54  L.  J.,  P.  79;  53 
L.  T.  914 ;  34  W.  R.  231  ;  5  Asp.  M.  G  M0- 
Hannen,  P. 

o.    Fog. 

Whistle  heard  ahead  —  Duty  of  Stnejur— 

Speed.] — A  steamship,  the  D.,  in  a  dense  fog  oil 
Ushant,  proceeding  at  slow  speed,  heard  a  whistle 
about  three  points  on  her  starboard  bow ;  the 
whistle  was  repeated  several  times  and  answered 
by  the  D.  In  about  a  quarter  of  an  hour  from 
the  first  sound  of  the  whistle  the  steamship  & 
appeared  about  a  length  from  the  D.  crossing 
from  starboard  to  port.  The  engines  of  the  D. 
were  reversed  full  speed,  but  a  collision  oeevnd. 
The  court  having  held  both  ships  to  blame,  the 
owners  of  the  D.  appealed : — Held,  by  the  Const 
of  Appeal,  that  the  D.  was  also  to  blame,  far  she 
should  have  been  brought  to  as  complete  a  stand- 
still as  possible,  without  getting  out  of  command, 
at  an  early  period  after  the  first  sound  of  the 
whistle,  and  should  have  also  stopped  and  re- 


1686 


SHIPPING^oHww, 


1686 


Tened  sooner.  The  Dordogne,  10  P.  D.  6  ;  54 
L  J.,  P.  29  ;  51  L.  T.  650 ;  33  W.  B.  360  ;  6  Asp. 
M.  C.  328— C.  A. 

Where  an  officer  in  charge  of  a  steamship  in  a 
dense  fog  hears  a  whistle  apparently  two  or 
three  points  on  the  bow,  but  cannot  be  sore  of 
the  bearing  within  a  point  or  two,  and  does  not 
know  the  heading  of  the  vessel  whistling,  it  is 
his  duty  to  diminish  the  speed  of  his  vessel  to 
the  utmost  to  give  him  time  to  ascertain  the 
manoeuTres  of  the  other  vessel,  and  for  that 
purpose  he  most  either  reduce  the  speed  until 
the  engines  are  only  just  moving,  or  he  must 
stop  them,  but  he  need  not  necessarily  continue 
to  keep  them  stopped,  but  only  sufficiently  to 
dimmish  his  way,  and  when  he  is  beginning  to 
lose  steerage  way,  then  and  only  then,  may^  put 
them  on  again,  but  as  slowly  as  is  possible. 
The  Rosetta,  59  L.  T.  342  ;  6  Asp.  M.  C.  310— 
Hannen,  P. 

A  collision  happened  between  the  steamship 
I.  and  the  barque  Z.  in  a  fog.  It  was  proved 
that  the  I.  had  reduced  her  speed  so  far  as  was 
possible  without  stopping  her  way  altogether  : — 
Held,  that  she  had  not  infringed  art.  13  of  the 
Regulations  for  Preventing  Collisions  at  Sea. 
The  Zadok,  9  P.  D.  114  ;  53  L.  J.,  P.  72  ;  60 
L.  I.  695  ;  32  W.  B.  1003 ;  5  Asp.  M.  C.  252— 
Hannen,  P. 

It  is  the  duty  of  those  who  have  charge  of  a 
steamship  in  motion  during  a  dense  fog  on  first 
hearing  the  whistle  of  a  steamship  in  such  close 
proximity  to  them  that  risk  of  collision  between 
the  two  vessels  is  involved,  to  bring  their  vessel 
immediately  to  a  standstill  on  the  water,  and 
not  execute  any  manoeuvre  with  their  helm 
until  they  have  definitely  ascertained  the  posi- 
tion and  course  of  the  other  ship.  The  Kirbv 
E*U,  8  P.  D.  71 ;  52  L.  J.,  P.  31  ;  48  L.  T. 
797;  31  W.  B.  658;  5  Asp.  M.  C.  90— Sir  B. 
Phillimore. 

If  an  officer  in  charge  of  a  vessel  ina  fog  hears 
a  whistle  ahead,  he  must  act  sooner  than  if  it  is 
heard  from  any  other  quarter,  and  on  the  proba- 
bility that  the  vessel  which  is  sounding  the 
whistle  is  coming  towards  him.  The  JEbor,  infra 
—Per  Lord  Esher,  M.  B. 

Probability  of  Bisk— Art.  18.  ]— A  steamer 

heard  a  whistle  on  her  port  bow  in  a  dense  fog, 
and  it  was  repeated,  snowing  that  the  vessel 
from  which  it  was  sounded  was  approaching  and 
was  in  hex  vicinity  : — Held,  that  under  such  cir- 
cumstances it  is  a  general  rule  of  conduct  that 
there  is  a  necessity  to  stop  and  reverse,  and  that 
she  had  disobeyed  art.  18  by  not  so  doing.  The 
John  Mclntyre,  9  P.  D.  135  ;  63  L.  J.,  P.  114  ; 
61  L.  T.  185  ;  33  W.  B.  190  ;  5  Asp.  M.  C.  278— 
C.A. 

Under  art.  18  as  soon  as  it  is  perceived  by 
those  on  a  steamer  in  a  dense  fog  that  a  vessel  is 
coming  substantially  nearer,  the  steamer  should 
stop  and  reverse.    The  Dordogne,  supra. 

The  plaintiffs  steamer,  in  a  fog  off  Cromer,  heard 
a  whistle  almost  right  ahead  ;  she  was  then  going 
slowly,  about  three  knots  an  hour,  and  she  con- 
tinued at  this  speed  for  about  a  minute,  until  a 
second  whistle  was  heard,  when  the  order  was 
given  to  stop  and  reverse  ;  but  the  defendants' 
steamer  coming  into  sight,  a  collision  occurred. 
The  defendants  admitted  at  the  trial  that  they 
were  to  blame : — Held,  that  the  plaintiffs  were 
also  to  blame,  for  they  had  infringed  art.  18  by 
going  on  at  tne  same  speed  after  they  heard  the 


first  whistle  as  before.  The  Ebor>  11  P.  D.  25  ; 
54  L.  T.  200 ;  34  W.  B  448  ;  5  Asp.  M.  C.  560— 
C.A. 

Probability  af  Biak— Sailing  Vassal.]— 
Semble,  though  art  18  does  not  apply  to  a  sail- 
ing ship,  yet  she  ought  in  similar  circumstances 
to  take  off  sail  so  as  to  come  to  as  complete  a 
standstill  as  possible,  without  getting  out  of 
command.    The  Dordogne,  supra. 

"Moderate  Speed."]— The  officer  in  charge 
of  a  steamer,  on  hearing  a  whistle  almost  right 
ahead,  should  reduce  her  speed  to  as  slow  a  rate 
as  possible,  only  keeping  her  under  command ; 
by  omitting  to  do  so  he  had  not  gone  at  a 
"  moderate  "  speed  within  the  meaning  of  art.  13. 
The  Dordogne  (10  P.  D.  6)  commented  on.  The 
Ebor,  supra — Per  Lord  Esher,  M.  B. 

Under  art.  13  "  a  moderate  speed  "—in  a  river 
of  narrow  channel— means  that  a  vessel  shall  be 
brought  nearly  to  a  standstill,  whether  the 
whistle  or  fog-horn  of  another  vessel  is  heard  or 
not,  but  in  the  open  sea  the  article  need  not  be 
bo  strictly  construed,  unless  a  whistle  or  fog- 
horn is  heard.  The  Dordogne,  supra  —  Per 
Brett,  M.  B.  . 

The  term  "  moderate  speed  "  used  in  art.  13  of 
the  Begulations  for  Preventing  Collisions  at  Sea 
is  a  relative  term,  depending  upon  the  circum- 
stances. When  a  sailing  ship  was  going  in  a 
dense  fog  at  a  speed  greater  than  was  enough  to 
keep  her  under  control :— Held,  that  she  had 
infringed  art.  13.  The  Beta,  9  P.  D.  134  ;  61 
L.  T.  154 ;  33  W.  B.  190 ;  5  Asp.  M.  C.  27fr- 

C.  A.  ,.    T 

A  collision  happened  between  the  steamship  L 
and  the  barque  Z.  in  a  fog.  It  was  proved  that  the 
Z.  was  proceeding  at  more  than  four  knots  an 
hour:— Held,  an  infringement  of  art.  13,  for  the 
term  "  moderate  speed ,Y  means  that  a  vessel  is  to 
reduce  her  speed  so  far  as  she  can  consistently 
with  keeping  steerage  way.  The  Zadok,  9  P.  D. 
114  ;  53  L.  J.,  P.  72  ;  60  L.  T.  695  ;  32  W.  B. 
1003  ;  5  Asp.  M.  C.  252— Hannen,  P. 


Whistle  not  hoard— Evidence  of  Hegllgence.] 
—It  was  proved  at  the  trial  that  a  fog-horn  was 
blown  on  the  Z.  but  not  heard  on  the  I. ;— Held, 
that  this  was  not  prima  facie  evidence  of 
negligence  of  those  on  the  I.    lb. 

The  fact  of  a  steam-whistle  alleged  to  have 
been  blown  in  a  fog  not  being  heard  by  those  on 
an  approaching  ship  is  not  necessarily  proof  that 
there  was  a  bad  look-out  on  the  approaching 
ship,  as  the  direction  in  which  and  the  distance 
from  which  the  sound  would  be  heard  is  un- 
certain. The  Roeetta,  59  L.  T.  342 ;  6  Asp. 
M.  C.  310— Hannen,  P. 


d.    Vessel*  Creasing,  Overtaking  and 

Meeting. 

Application  of  Begnlations.]— The  Begula- 
tions for  Preventing  Collisions  at  Sea  only  apply 
at  a  time  when  two  vessels  have  approached  so 
near  to  one  another  that,  if  either  of  them  does 
anything  contrary  to  the  regulations,  risk  of 
collision  will  be  involved.  The  Banehee,  67 
L.  T.  841 ;  6  Asp.  M.  G  221— C.  A. 

Crossing  or  Overtaking.]— When  a  vessel  is  at 


1687 


SHIPPING— Collision. 


1688 


the  same  time  overtaking  and  crossing  the  course 
of  another  vessel,  she  is  to  be  deemed  an  over- 
taking, and  not  a  crossing  ship  under  art.  16,  and 
is  bound  therefore  to  obey  the  directions  of 
art.  20,  and  keep  out  of  the  way  of  the  other 
vessel.  The  Seaton,  9  P.  D.  1  ;  53  L.  J.,  P.  15  ; 
49  L.  T.  747  ;  32  W.  R.  600  ;  5  Asp.  M.  C.  191 
— D. 

Vessels  Crossing— Booking  Signal— "Special 
Ciroumstanoes."] — Where  a  steamship  in  charge 
of  a  pilot,  bound  for  Penarth  Dock,  and  carrying 
the  usual  docking  signal  of  two  bright  lights  aft, 
saw,  when  crossing  Cardiff  East  Flat,  the  red  and 
masthead  lights  of  a  steamship  coming  down  Car- 
diff Drain,  bearing  on  her  starboard  bow,  and  dis- 
tant from  three  to  four  cables'  length  ;  but  the 
pilot  in  charge  took  no  steps  to  get  out  of  the  way 
of  the  other  vessel  until  a  collision  was  inevitable, 
because  he  was  of  opinion  that,  as  he  was  bound 
for  the  dock,  he  was  entitled  to  hold  on  : — The 
court  held  that  his  vessel  was  to  blame  for  breach 
of  art.  16  of  the  Regulations  for  Preventing  Col- 
lisions, there  being  no  "  special  circumstances  " 
warranting  a  departure  from  the  regulations.  The 
St.  Andries,  64  L.  T.  278  ;  5  Asp.  M.  C.  552— 
Hannen,  P. 

Duty  to  Stop  and  Reverie— Risk  of  Collision.] 
— The  A.  and  B.  were  crossing  within  the  mean- 
ing of  art.  16,  and  it  was  the  duty  of  the  A.  to  keep 
out  of  the  way  of  the  B.,  but  she  did  not  do 
so.  The  B.,  when  from  a  quarter  to  half 
a  mile  distant,  slackened  her  speed  and  con- 
tinued with  slackened  speed  to  within  300  yards 
of  the  A.,  and  then  stopped  and  reversed,  but  not 
in  time  to  prevent  a  collision  : — Held,  that  the 
B.  must  be  held,  for  not  stopping  and  reversing 
sooner,  to  blame  as  well  as  the  A.  Arts.  16  and 
18  are  intended  to  be  applicable  according  to  the 
circumstances  as  they  would  present  themselves 
to  the  mind  of  a  prudent  sailor,  and  come  into 
force  before  the  risk  of  collision  is  fixed  and 
determined.  The  Beryl,  9  P.  D.  137  ;  53  L.  J., 
P.  75  ;  51 L.  T.  654  ;  33  W.  R.  191 ;  5  Asp.  M.  C. 
321— C.  A. 

A  steamer,  the  G.,  saw  a  green  light  at  some 
distance  and  starboarded  her  helm,  soon  after  the 
port  side  of  the  B.,  without  a  red  light,  came 
into  view,  so  close  that  the  only  chance  of  avoid- 
ing a  collision  was  for  the  G.  to  continue  at  full 
speed  ahead  and  starboard  her  helm,  which  she 
did.  The  B.  struck  the  G.  on  her  starboard  side  : 
— Held,  that  the  B.  was  alone  to  blame  for  the 
collision,  and  that  art.  18  of  the  Regulations  did 
not  apply  under  the  circumstances  to  the  G.,  and 
that  art.  23  was  applicable.  TheBenaret^  9  P.  D. 
16  ;  53  L.  J.,  P.  2 ;  49  L.  T.  702  ;  32  W.  R.  268  ; 
5  Asp.  M.  C.  171— C.  A. 

Where  two  steamships  are  approaching  so  as 
to  involve  risk  of  collision,  and  it  is  the  duty  of 
one  to  keep  out  of  the  way  and  of  the  other  to 
keep  her  course,  the  latter  is  bound  to  comply 
with  art.  18  of  the  regulations  as  to  slackening 
her  speed  or  stopping  and  reversing,  notwith- 
standing the  fact  that  continuing  her  speed  may 
be  the  best  and  most  seamanlike  manoeuvre  for 
the  purpose  of  avoiding  a  collision.  The  steam- 
ship M.  sighted  the  masthead  and  green  lights 
of  the  steamship  8.,  distant  about  three  miles, 
and  bearing  about  two  and  a  half  points  on  the 
port  bow.  When  the  8.  got  within  three  ship- 
lengths  of  the  M.,  still  showing  her  masthead 
and  green  lights  at  a  bearing  of  four  points  on 


the  port  bow,  she  suddenly  starboarded,  and 
although  the  M.  immediately  stopped  her  engines, 
a  collision  occurred.  The  court,  having  held 
that  the  S.  was  to  blame,  further  found  that  the 
respective  courses  of  the  vessels  was  such  that 
had  the  S.  kept  her  course  and  not  starboarded 
6he  would  have  passed  one  and  a  half  ship-lengths 
astern  of  the  M.,  and  that  the  best  and  most 
seamanlike  manoeuvre  for  the  M.  was  to  continue 
her  speed  as  she  did,  but  that  there  was  in  fact 
risk  of  collision  before  the  S.  starboarded,  and 
that  the  M.  was  to  blame  for  breach  of  art  18 
in  not  stopping  sooner.  The  Jfemnon,  59  L.  T. 
289  ;  6  Asp.  M.  C.  317— C.  A. 

" Course."]— The  word  "course,"  in  art  22 
refers  to  the  direction  of  the  vessel's  head  and 
not  to  her  speed.  The  Beryl,  9  P.  D.  137 ;  53 
L.  J.,  P.  75  ;  51  L.  T.  654  ;  33  W.  R.  191 ;  5  Asp. 
M.  C.  321— C.  A. 

Overtaken  Vessel  altering  Courts.]  — 
Semble,  that  a  vessel,  which  is  being  orer- 
taken  by  another,  is  not  to  blame  within  art  22 
of  the  Regulations  if  she  alters  her  course  at 
such  a  distance  ahead  of  the  overtaking  vessel 
that  the  latter  can.  by  the  exercise  of  reasonable 
care,  keep  out  of  the  way  of  the  former.  The 
Bafuhee,  57  L.  T.  841 ;  6  Asp.  M.  C.  221— C.  A. 


e.  Probability  of  Biak. 

In  what  Cases.]— The  S.  and  C.  were  approach- 
ing each  other  at  night  on  opposite  courses,  so 
as  to  pass  starboard  to  starboard.  The  master  of 
the  C.  saw  the  green  and  white  lights  of  the  S. 
somewhat  more  than  a  quarter  of  a  mile  distant, 
coming  into  line.  This  indicated  a  probability 
that  the  S.  was  porting,  which  would  cause  a 
risk  of  collision  ;  soon  after  the  red  light  of  the 
6.  was  seen.  The  engines  of  the  C.  had  been 
previously  stopped,  but  the  master  did  not 
reverse  her  engines  till  the  red  light  of  the  S. 
was  seen  ;  the  vessels  soon  after  came  into  col- 
lision :— Held,  that  the  C.  was  to  blame  for  in- 
fringing art.  18  of  the  Regulations  for  Prevent- 
ing Collisions  at  Sea,  because  as  there  was  a 
probability  of  risk  of  collision  when  the  master 
of  the  C.  saw  the  green  and  white  lights  of  the 
S.  coming  into  line,  he  should,  being  aware  of 
such  probability,  have  then  reversed  the  engines 
of  the  C.  The  Stanmore,  10  P.  D.  134  ;  54  L  J- 
P.  89  ;  53  L.  T.  10  ;  5  Asp.  M.  C.  441— a  A. 

In  accordance  with  the  18th  sailing  rule,  under 
Order  in  Council,  14th  of  August,  1879,  it  is  the 
duty  of  those  in  charge  of  a  steamship  in  motion* 
when  they  perceive  that  a  risk  of  collision  i* 
involved,  to  reverse  their  engines  and  bring  their 
ship  to  a  standstill  on  the  water.  A  collision 
occurred  between  the  steamship  A.  and  the 
steamship  B.  The  evidence  was  most  contra- 
dictory. It  was,  however,  satisfactorily  pored 
that  although  the  crew  of  the  ship  B.  had  been 
until  a  few  minutes  before  the  collision  engaged 
in  getting  the  anchors  on  board  in  ship-shape 
order,  and  that  the  captain  had  left  the  deck 
when  he  ought  to  have  been  there,  yet  that  when 
it  was  perceived  that  two  vessels  were  approach- 
ing in  such  a  manner  as  to  involve  risk  of  col- 
lision the  engines  were  reversed,  and  the  snip 
stopped.  On  board  the  ship  A.  everything  was 
proved  to  have  been  in  good  order  at  the  time  of 
the  collision.    But  her  captain  did  not  stop  his 


1689 


SHIPPING— CoVitum. 


1690 


engines  until  almost  the  moment  of  collision, 
and  consequently  the  ship  A.  cut  into  the  ship  8. 
to  the  water's  edge  : — Held,  that  there  was  fault 
on  both  sides,  contributing  to  the  damage  and 
loss  which  had  been  suffered,  and  therefore 
neither  were  entitled  to  costs.  Maelaren  v. 
Compagnie  Francaise  de  Navigation  a  Vapeur, 
9  App.  Cas.  640— H.  L.  (Sc). 

Instantaneous  Compliance.] — A  steamship  did 
not  stop  and  reverse  under  art.  18  as  soon  as  she 
might  have  done  : — Held,  that  she  was  to  blame, 
bat  that  instantaneous  compliance  with  art.  18 
is  not  necessary.  The  Emmy  Haase,  9  P.  D. 
81 ;  53  L.  J.,  P.  43  ;  50  L.  T.  372  ;  32  W.  R.  880  ; 
5  Asp.  M.  C.  216— Butt,  J. 

In  Case  of  Fog.]—  See  ante,  cols.  1685, 1686. 

In  Case  of  Vessels  Crossing,  Overtaking,  and 
lasting.]— See  ante,  col.  1687. 


1  Speed. 

Clear  Weathor  —  North  8ea.]  —  A  steamer 
being  in  the  North  Sea,  and  the  weather  fine 
and  clear,  though  the  night  was  dark,  was  pro- 
ceeding at  the  rate  of  eight  to  nine  knots  an 
hoar : — Held,  that  she  was  not,  under  the  cir- 
cumstances, going  at  too  high  a  rate  of  speed. 
The  Pacific,  9  P.  D.  124 ;  58  L.  J.,  P.  66  ;  51 
L.  T.  127  ;  33  W.  R.  124 ;  5  Asp.  M.  C.  263— 
Butt,  J. 


In  Pog.]— See  ante,  col.  1686. 


g.  Narrow  Channel*. 

What  are— 8trait  of  Messina.  1— The  Strait  of 
Messina  is  a  narrow  channel  within  the  meaning 
of  Article  21  of  the  Admiralty  Regulations  for 
Preventing  Collisions  at  Sea;  as  to  what  par- 
ticular width  or  length  will  constitute  a  narrow 
channel,  quaere : — Held,  that  the  A.  L.,  by  in- 
fringing the  said  article,  occasioned  the  collision 
which  afterwards  happened,  and  failed  to  esta- 
blish that  the  R.,  by  anything  which  she  did, 
contributed  to  it  or  could  in  any  way  have 
avoided  it.  Seieluna  v.  Stevenson,  The  Rhond&a, 
8  App.  Cas.  549 ;  49  L.  T.  210  ;  5  Asp.  M.  C. 
114— P.  C. 

Held,  that  the  R.'s  helm  having  been  put 
hard-a-port  in  a  way  which,  if  successful,  would 
have  put  her  on  such  a  course  as  would  have 
determined  the  risk  of  collision,  the  duty  of  re- 
versing her  engines  did  not  arise  till  it  was  dis- 
covered that  the  vessel,  owing  to  the  action  of  a 
current,  was  not  obeying  her  helm.    lb. 

Falmouth  Harbour.] — Art.  21    of   the 

Regulations  for  Preventing  Collisions  at  Sea, 
1880,  providing  that "  in  narrow  channels  every 
steamship  shall,  when  it  is  safe  and  practicable, 
keep  to  tnat  side  of  the  fairway  or  mid-channel 
which  lies  on  the  starboard  side  of  such  ship," 
applies  to  a  steamship  entering  and  passing  up 
Falmouth  Harbour,  and  if  a  steamer  going  into 
that  harbour  keeps  to  the  Bide  of  the  channel 
which  lies  on  her  port  hand,  she  violates  the 
regulations.  The  Clydach,  51  L.  T.  668 ;  5  Asp. 
Jf.  C.  336— Butt>  J. 


Cardiff  Docks.]— A  collision  occurred  at 

the  junction  of  the  main  channel  leading 
to  Cardiff  Docks  and  the  channel  to  the 
Roath  Basin,  between  a  steamer  going  up  the 
former  and  another  coming  down  the  latter : — 
Held,  that  the  place  of  collision  was  a  "  narrow 
channel"  within  art.  21  of  the  Regulations  for 
Preventing  Collisions  at  Sea,  and  that  arts.  16 
and  22  were  also  applicable,  there  being  no 
special  or  local  rules  to  supersede  the  general 
rules  of  navigation.  Tlie  Leverington,  11  P.  D. 
117  ;  55  L.  J.,  P.  78  ;  55  L.  T.  386  ;  6  Asp.  M.  C. 
7— C.  A. 


2.    IN  OTHBR  PLACES. 

a.  Generally. 

Duty  of  Steamship  Navigating  Reach.]  — 
Where  a  steamer  is  navigating  a  reach  in  which 
there  is  a  risk  of  her  smelling  the  ground,  it  is 
her  duty  to  be  under  such  control  by  occasion- 
ally stopping  her  engines  or  otherwise,  so  that 
she  may  be  able  to  avoid  collision  with  other 
craft  in  case  she  does  smell  the  ground  and  fails 
to  answer  her  helm.  The  Ralph  Creyke,  55 
L.  T.  155  ;  6  Asp.  M.  C.  19— Hannen,  P. 

Duty  of  Keel— Keels  lashed  together.]— In 
the  absence  of  any  rule  of  the  road,  regulation, 
or  custom,  there  is  no  duty  on  the  part  of  a  keel 
or  barge  drifting  up  river  to  keep  out  of  the 
deep  water  navigation  and  navigate  in  the 
shallow  water,  even  though  by  remaining  in  the 
deep  water  she  obstructs  the  passage  of  steam- 
ships which  can  only  navigate  in  the  deep 
water.  A  keel  with  her  mast  lowered  may 
drive  up  on  a  flood  tide  in  any  part  of  a  river 
lashed  to  another  keel,  but  it  is  her  duty  in  such 
circumstances  to  go  up  dredging  with  her  anchor 
down,  in  order  that  she  may  thereby  have  the 
means  in  an  emergency  of  bringing  herself  up  if 
necessary ;  and  whilst  two  keels  may  drive  up 
lashed  together  there  is  no  less  duty  imposed  on 
them  to  dredge.    lb. 


b.  Danube. 

Keeping  to  Bight  Bank  going  down.]  — 
Under  r.  34,  c.  2,  of  the  Danube  Commission 
Rules,  vessels  going  down  the  Danube  should 
keep  to  the  right  bank.  Where  a  vessel  going 
down  the  Danube,  when  there  was  a  fog  and 
approaching  night,  went  to  the  left  bank  : — Held, 
that  according  to  the  true  construction  of  the 
rule,  that  was  neglect  of  duty ;  and  that  such 
negligence  was  the  cause  of  a  collision  which 
occurred  with  a  vessel  coming  up,  although  the 
absence  of  lights  on  the  latter  vessel  might  have 
partly  contributed  to  the  accident.  The  Yourri, 
The  Spearman,  10  App.  Cas.  276 ;  53  L.  T.  29  ; 
5  Asp.  M.  C.  458— P.  C. 


o. 

Stern  light— Compulsory  Pilotage.]— The  R. 

in  charge  of  a  tug  was  dropping  stern  foremost 
up  the  Humber  with  the  tide,  and  was  eventually 
brought  athwart  the  tide  to  go  into  dock.  The 
R.  was  exhibiting,  in  addition  to  the  mast-head 
and  side  lights,  a  white  light  from  the  main 
peak  showing  astern,  which  had  been  placed 


1691 


SHIPPING— Collision. 


1692 


there  by  the  order  of  the  pilot,  who  was  by 
compulsion  of  law  in  charge  of  the  R.  The 
Bales  for  the  Navigation  of  the  River  Humber, 
made  by  Order  in  Council  in  pursuance  of  25  k 
26  Vict.  c.  63,  s.  82,  incorporate  the  Regulations 
for  Preventing  Collisions  at  Sea.  The  B., 
coming  down  the  Humber,  and  the  R.  came 
into  collision.  At  the  bearing  it  was  admitted 
that  the  E.  was  to  blame : — Held,  that  the  R. 
was  also  to  blame,  for  that  as  the  Humber  Rules 
were  within  the  purview  of  36  &  87  Vict.  c.  85, 
s.  17,  there  had  been,  by  the  exhibition  of  a 
stern  light,  a  breach  of  statutory  regulation, 
namely  of  art.  2,  which  it  was  impossible  to  say 
might  not  have  contributed  to  the  collision,  and 
there  was  no  circumstance  to  make  a  departure 
from  the  regulation  necessary.  The  Ripon,  10 
P.  D.  65  ;  54  L.  J.,  P.  56 ;  52  L.  T.  438  ;  33  W.  R. 
659  ;  5  Asp.  M.  C.  365— Butt,  J. 


d.  Kersey. 

Stem  Light.  J — At  the  trial  of  an  action  for 
damage  by  collision  it  appeared  that  the  stern 
light  of  the  plaintiffs'  vessel  was  placed  on  deck 
abaft  a  house  on  the  after  part  of  the  deck  : — 
Held,  that  this  was  an  infringement  of  rule  5  of 
the  Mersey  Rules,  but  the  court  having  regard 
to  the  position  of  the  plaintiffs1  and  the  defen- 
dant's vessels,  held,  that  the  infringement  could 
not  have  contributed  to  the  collision.  The  Fire 
Quern,  12  P.  D.  147  ;  56  L.  J.,  P.  90  ;  57  L.  T. 
312  ;  36  W.  R.  15  ;  6  Asp.  M.  C.  146— Butt,  J. 

Launch — Duty  of  Tag.]— Persons  in  charge  of 
a  launch  are  bound  to  take  the  utmost  pre- 
cautions to  avoid  injury  to  passing  vessels,  such 
precautions  being,  in  the  circumstances,  no  more 
than  reasonable.  It  is  their  duty  to  have  a  tug 
in  attendance  on  a  launch  in  the  Mersey, 
decorated  so  as  to  indicate  that  a  launch  is  im- 
minent, and,  if  necessary,  to  warn  approaching 
vessels.  The  George  Roper,  or  Bentinck 
Steamship  Company  v.  Potter,  8  P.  D.  119 ;  52 
L.  J.,  P.  69 ;  49  L.  T.  185 ;  31  W.  R.  953  ;  5 
Asp.  M.  C.  134— Butt,  J. 


e.    Tees. 

itarboard  sidsof  River— Steamship.  ]— Arts.  17 
and  18  of  the  River  Tees  Conservancy  Bye-laws, 
providing  that  ships  shall  keep  "  the  starboard 
side  of  the  river,  so  that  the  port  helm  may 
always  be  applied,"  and  that  a  "steamship, 
when  approaching  another  ship  on  an  opposite 
course  or  from  an  opposite  direction,  shall  before 
approaching  within  thirty  yards  slacken  her 
speed,  and  keep  as  near  as  possible  to  the  star- 
board side  of  the  river,"  are  to  be  observed  even 
when  vessels  are  approaching  one  another  so  as 
to  show  each  other  their  green  lights,  and 
nothing  will  excuse  the  non-observance  of  these 
rules  but  extreme  necessity.  The  Mary 
Lohden,  58  L.  T.  461  ;  6  Asp.  M.  C.  262— C.  A. 


f.    Thames. 

Duty  of  Bailing  Vessel— Steamship.]— Where 
a  steamship  navigating  the  river  Thames  is  in 
such  a  position,  through  no  fault  of  those  in 
charge  of  her,  that  it  is  unsafe  or  impracticable 
for  her  to  keep  out  of  the  way  of  a  sailing  vessel, 


it  is  the  duty  of  the  sailing  vessel  under  art  21 
of  the  Rules  and  Bye-laws  for  the  navigation  of 
the  River  Thames,  on  hearing  the  steamer's 
whistle  sounded  as  therein  provided,  to  keep  out 
of  the  way  of  the  steamer.  The  Longnetrton,  59 
L.  T.  260  ;  6  Asp.  M.  C.  302— Hannen,  P. 

Stopping  and  Reverting.] — A  steamer  having 
stopped  but  not  having,  as  she  should  hare  done, 
reversed  immediately  before  a  collision,  though 
the  court  found  as  a  fact  that  her  not  having 
done  so  did  not  affect  the  collision,  and  having 
thus  infringed  r.  14  of  the  Thames  Rules:— 
Held,  that  she  was  nevertheless  not  to  blame,  for 
the  Thames  Rules  do  not  fall  within  the  opera- 
tion  of  8.  17  of  the  Merchant  Shipping  Act,  1875 
(36  &  87  Vict,  c.  85).  The  Barton,  9  P.  D.  44 ; 
63  L.  J.,  P.  25  ;  50  L.  T.  370  ;  32  W.  K  697;  5 
Asp.  M.  C.  213— Butt,  J. 

Steamships  Meeting— Bounding  Fointi  of 
Biver.J— Rule  23  of  the  Thames  Rules  is  not 
confined  to  the  seaward  side  of  "  a  line  drawn 
from  Blackwall  Point  to  Bow  Creek."  A  steam- 
ship, the  C.  S.,  left  the  South-West  India  Docks 
nearly  opposite  the  curve  of  Blackwall  Point, 
and  proceeded  downstream  at  easy  speed  against 
a  flood  tide.  In  a  few  minutes,  as  she  was  about 
to  round  Blackwall  Point,  she  perceived  the 
steamship  M.  in  Bugsby's  Reach,  and  preparing 
to  round  the  point ;  the  C.  S.  stopped  and  re- 
versed her  engines,  but  a  collision  between  the 
C.  S.  and  the  M.  took  place  :— Held,  that  Bote 
23  of  the  Thames  Rules  did  not  apply,  under  the 
circumstances,  to  the  C.  S. ;  that  ordinary  care 
on  the  part  of  the  M.  would  have  enabled  her  to 
avoid  the  collision,  and  that  she  alone  was  to 
blame.  Cayzer  v.  Carron  Company,  9  App.  0a?. 
873  ;  54  L.  J.,  P.  18 ;  62  L.  T.  361  ;  33  W.  B. 
281  ;  5  Asp.  M.  C.  371— H.  L.  (E.). 

Fog — Sailing  and  Dumb  Barges.]  —  Domo 
barges  in  the  Thames  do  not  carry  anchors,  and 
have  no  means  of  bringing  themselves  up  except 
by  going  ashore  or  fastening  on  to  anything  they 
may  come  in  contact  with,  and  hence  a  dumb 
barge  starting  on  her  voyage  in  clear  weather 
and  getting  into  a  fog,  is  not  guilty  of  negligence 
if  she  comes  into  contact  with  a  vessel  moored 
in  the  river,  and  if  that  vessel  in  breach  of  the 
Rules  and  Bye-laws  for  the  navigation  of  the 
River  Thames  has  her  anchor  not  stock-a-wash, 
and  the  barge  is  thereby  injured,  the  vessel  » 
moored  is  solely  responsible  for  such  damage. 
The  Rose  of  England,  59  L.  T.  262  ;  6  Asp.  M. 
C.  304— Hannen,  P. 

Tug  and  Tow — Anchorage  Ground— Position  tf 
Anchor.] — Where  a  vessel,  intending  either  to 
moor  at  one  of  the  buoys  or  anchor  in  the  an- 
chorage ground  in  Gravesend  Reach,imoves  from 
buoy  to  buoy  to  select  one,  and,  fincling  them  all 
occupied,  anchors  a  short  distance  above  the  last 
of  the  buoys,  she  does  not  navigate  within  the 
anchorage  ground  in  contravention  of  art.  15  of 
the  Rules  and  Bye-laws  for  the  Navigation  of 
the  River  Thames,  1872.  The  (Sty  of  Delhi,  5$ 
L.  T.  531 ;  6  Asp.  M.  C.  269— Butt,  J. 

Where  a  vessel,  intending  either  to  moor  at 
one  of  the  buoys  or  anchor  in  the  anchorage 
ground  in  Gravesend  Reach,  finds  all  the  buoys 
occupied,  and,  on  passing  the  last  buoy,  gets  her 
anchor  a-cockbill  for  the  purpose  of  bringing 


1698 


SHIPPING— Cottinm. 


1694 


herself  to  anchor  on  finding  a  suitable  place, 
and,  after  she  has  got  a  short  distance  above  the 
booys,  a  collision  occurs  and  damage  is  done  by 
the  anchor,  such  anchor  is  only  a-cockbill  during 
men  time  as  is  "  absolutely  necessary  "  for  bring- 
ing her  to  anchor  within  the  meaning  of  art.  19 
of  the  Rules  and  Bye-laws  for  the  navigation  of 
the  River  Thames,  1872.    lb. 

g.    Tyne. 

Crowing  River— Duty  of  Vestelf  going  up  or 

tvwn.1— The  duty  imposed  by  art.  22  of  the 
rales  for  the  navigation  of  the  River  Tyne  upon 
vessels  crossing  the  river  not  to  cause  obstruc- 
tion, injury,  or  damage  to  other  vessels,  does  not 
require  them  in  any  event  to  get  out  of  the  way 
of  vessels  going  up  or  down,  and  they  are  at 
liberty  when  crossing  at  a  proper  time  and  in 
a  proper  manner  to  do  so  at  such  times  as  may 
be  convenient  to  themselves,  and  vessels  pro- 
ceeding up  and  down  must  take  the  ordinary 
precautions  to  avoid  collision  with  crossing  ships. 
The  Thetford,  57  L.  T.  455  ;  6  Asp.  M.  C.  179— 
Hannen,  P. 

Growing  near  Pier-heads.]— Bye-law  20  of  the 
regulations  of  the  River  Tyne,  1884,  must  be 
taken  to  mean  that  a  vessel  is  not  to  cross  from 
north  to  south,  or  from  south  to  north,  close  up 
to  the  pier-heads,  but  is  to  get  on  a  proper  course 
when  at  some  considerable  distance  outside  the 
pier-heads.  The  Harvest,  11  P.  D.  90 ;  55  L.  T. 
202;  6  Asp.  M.  C.  5— C.  A.  Affirming  55  L.  J., 
P.  35  j  34  W.  R.  491— Butt,  J. 


3.   DUTIES  AFTEB  COLLISION. 

Standing  by.]— The  E.  H.,  after  a  collision 
with  the  M.,  burnt  rockets  and  blue  lights  as 
agnate  of  distress,  but  the  M.  did  not,  as  she 
might  have  done,  reply  to  these  signals : — Held, 
a  breach  of  the  statutory  duty  of  rendering 
assistance  under  36  &  37  Vict.  c.  85,  s.  16,  and 
that  the  M.  was  therefore  to  be  deemed  to  blame. 
The  Bmmy  Haase,  9  P.  D.  81 ;  53  L.  J.,  P.  43  ; 
W  L.  T.  373 ;  32  W.  R.  880  ;  6  Asp.  M.  C.  216— 
Bott,J. 

Keasure  of  Damages— Cargo.]— The  K.,  which 
was  on  a  voyage  under  charter  from  Cardiff  to 
Bombay  with  coals,  was  run  into  by  the  B., 
shortly  after  leaving  Penarth  Docks.  The  K.j 
which  was  considerably  damaged,  returned  to 
Gaidiff,  where  her  cargo  was  taken  out  of  her  in 
Oder  that  she  might  be  repaired.  The  owners 
of  the  cargo  proposed  that  the  coals,  which  were 
also  damaged,  should  be  sold  and  a  fresh  cargo 
shipped.  The  shipowner,  however,  refused  to 
ship  a  fresh  cargo  except  "  on  fresh  terms  as  to 
freight,  Jtc,"  and  the  charterer,  without  inquir- 
ing what  the  fresh  terms  would  be,  reshipped 
the  damaged  cargo,  which  was  carried  to 
Bombay :— Held,  that  it  was  the  duty  of  the 
cargo-owner  to  have  ascertained  on  what  "  terms 
as  to  freight,  fcc, "  the  shipowner  would  consent 
to  ship  a  fresh  cargo  in  lien  of  that  which  had 
been  damaged,  so  as  to  be  able  to  form  a 
judgment  as  to  which  would  be  the  best  course 
to  diminish  the  loss  for  whomever  it  might 
concern.  The  Blenheim,  10  P.  D.  167  ;  54  L.  J., 
P.  81  ;  53  L.  T.  916  ;  34  W.R.  164  ;  5  Asp.  M.  C. 
~    -  P. 


4.  ACTIONS  FOR  DAMAGE, 
a.   Generally. 

Interest  to  maintain  Action.] — Where  the 
plaintiffs  in  an  action  for  damage  to  cargo  had 
indorsed  their  bills  of  lading  to  a  bank  to  secure 
advances : — Held,  that  they  retained  an  interest 
in  the  cargo  sufficient  to  enable  them  to  main- 
tain their  suit,  the  money  recovered  to  be  for  the 
benefit  of  the  parties  shown  to  be  entitled  thereto. 
The  Glamorganshire,  13  App.  Cas.  454  ;  59  L.  T. 
57fc— P.  C. 

Jurisdiction  of  County  Court.]  —  See  post, 
col.  1720. 

Claim  when  Barred — Contract  of  Towage — 
Implied  Agreement.]— A  tug  while  towing  the 
plaintiff's  vessel  came  into  collision  with  and 
sank  her.  The  tug  was  chartered  by  the  defen- 
dants, a  company,  to  work  with  their  own  tugs, 
and  one  of  the  terms  on  which  the  company 
towed  vessels  was  that  they  would  not  be  answer- 
able for  loss  ot  damage  to  any  vessel  in  tow  of 
their  tugs  (which  were  specified  by  name) 
whether  occasioned  by  the  negligence  of  their 
servants  or  otherwise.  The  tug  in  question  was 
not  one  of  those  specified,  but  the  plaintiff  was 
a  director  of  the  defendant  company,  and  was 
aware  of  the  chartering  of  the  tug : — Held,  that 
the  plaintiff  must  be  taken  to  have  impliedly 
agreed  to  employ  the  tug  on  the  same  terms  as 
the  other  tugs  of  the  company,  and  that  his 
claim  was  therefore  barred  by  the  condition. 
The  Tasmania*  13  P.  D.  110  ;  57  L.  J.,  P.  49  ;  69 
L.  T.  263  ;  6  Asp.  M.  C.  305— Hannen,  P. 

Collision  caused  by  Tug  — Payment  of 

Sum  by  Tow.] — The  schooner  J.  M.  S.  having 
come  into  collision  with  a  tug  and  her  tow,  a 
damage  action  in  rem  was  instituted  by  the 
owners  of  the  schooner  against  the  tug  to  recover 
all  the  damages  occasioned  by  the  collision. 
Subsequently  to  the  collision  the  plaintiffs 
received  from  the  owners  of  the  tow  a  sum  of 
money  described  in  an  agreement  entered  into 
between  these  parties  "  as  an  advance  on 
account  of  the  damages  to  be  recovered  from 
the  owners  of  the  tug."  By  the  agreement  it 
was  agreed  that  the  owners  of  the  tow  should 
give  the  plaintiffs  all  information  and  assistance 
necessary  to  bring  the  action  to  a  successful 
issue ;  that  if  the  schooner  and  the  tug  should 
both  be  held  to  blame,  the  plaintiffs  should 
repay  any  sum  by  which  the  money  already 
paid  exceeded  the  moiety  of  damages  recover- 
able against  the  tug  ;  and  that,  as  a  basis  of  the 
arrangement,  it  was  understood  that  the  schooner 
should  be  found  blameless  for  the  collision.  The 
court,  having  found  the  tug  alone  to  blame,  held 
that  the  above  payment  was  not  such  a  payment 
by  the  tow  in  satisfaction  of  the  damages  occa- 
sioned by  the  collision  as  amounted  to  a  settle- 
ment in  discharge  of  the  action,  and  was  conse- 
quently no  bar  to  the  action  ;  and  that,  notwith- 
standing the  advance  paid  by  the  tow,  the 
plaintiffs  were  entitled  to  recover  from  the 
defendants  all  the  damages  occasioned  by  the 
collision.  The  Stormtock,  53  L.  T.  53 ;  5  Asp. 
M.  C.  470— Hannen,  J. 

By  Shipowner  and  Cargo-owner — Compromise 
by  Shipowner— Limitation  of  Liability— Bight 
of  Cargo-owner.]— The  defendants'  vessel  came 


1695 


SHIPPING— Cotton. 


1696 


into  collision  with  and  sank  another  vessel 
carrying  cargo  belonging  to  the  plaintiffs. 
Actions  were  commenced  by  the  plaintiffs 
and  by  the  owners  of  the  carrying  vessel,  but 
in  the  action  between  the  latter  and  the 
defendants'  vessel,  the  parties  filed  in  the 
registry  an  agreement  to  a  decree  that  both 
vessels  were  to  blame,  and  for  the  usual  reference 
as  to  the  damages.  The  defendants  then  brought 
an  action  for  the  limitation  of  their  liability, 
and  paid  into  court  the  amount  of  their  liability 
under  the  Merchant  Shipping  Acts.  In  their 
statement  of  claim  they  referred  to  the  above- 
mentioned  agreement,  and  in  terms  admitted 
that  the  collision  was  "in  part  caused  by  the 
improper  navigation  of  their  vessel."  The  plain- 
tiffs, in  their  defence,  did  not  notice  this  admis- 
sion, or  otherwise  refer  to  the  cause  of  the 
collision.  The  usual  decree  was  made  for  limita- 
tion of  liability,  and  the  staying  of  the  plaintiffs' 
action  : — Held,  first,  that  the  agreement  between 
the  owners  of  the  two  vessels  having  been  filed 
in  the  registry  was,  under  Ord.  LII.  r.  23,  equiva- 
lent to  a  decree  of  the  court,  and  that  the  owners 
of  the  carrying  vessel  were  not  entitled  to  have 
such  agreement  rescinded  for  the  purpose  of 
proving  against  the  fund  in  court  for  more  than 
half  the  damage  sustained  by  them.  Secondly, 
that  there  was  no  admission  on  the  pleadings  by 
the  plaintiffs  as  defendants  in  the  limitation 
action  which  precluded  them  from  claiming  to 
prove  against  the  fund  for  the  whole  amount  of 
the  damage  sustained  by  them,  and  that  in  sup- 
port of  their  proof  an  issue  might  be  directed 
between  them  and  the  owners  of  the  carrying 
vessel  to  determine  whether  the  defendants'  vessel 
was  alone  to  blame  for  the  collision.  The  Karo, 
13  P.  D.  24:  67L.J.fP.8;  58  L.  T.  188  ;  6  Asp. 
M.  C.  245— Butt,  J. 

Preliminary  Act— Amendment] — Art.  IX.  of 
the  preliminary  act  on  behalf  of  the  defendants 
was  ordered  to  be  amended,  as  it  did  not  contain 
a  proper  statement  of  the  distance  and  bearing 
of  the  other  vessel  in  accordance  with  Ord.  XIX. 
r.  28  (i).  The  Godiva,  11  P.  D.  20;  55  L.  J., 
P.  13  ;  54  L.  T.  55  ;  34  W.  R.  551 ;  5  Asp.  M.  C. 
524— Butt,  J. 

Bail  to  Answer  Counter-claim.] — The  power 
of  the  Admiralty  Division  under  s.  34  of  the 
Admiralty  Court  Act,  1861,  to  order  an  action  to 
be  stayed  until  bail  has  been  given  to  answer  a 
cross-action  or  counter-claim,  does  not  extend  to 
making  an  absolute  order  to  give  bail ;  and  in  a 
damage  action  in  which  the  plaintiffs  had  dis- 
continued after  the  defendants  had  counter- 
claimed,  the  court  refused  to  enforce  an  order, 
made  by  the  registrar,  to  give  bail  to  answer 
such  counter-claim.  The  Alexander,  48  L.  T. 
797  ;  5  Asp.  M.  C.  89— Butt,  J. 

The  court  has  jurisdiction  by  24  Vict.  c.  10, 
8. 34,  to  order  a  plaintiff  in  an  action  for  damage 
by  collision  to  give  security  for  damages  to  a 
defendant  who  brings  a  counter-claim.  The 
court  can  exercise  this  power  when  such  plaintiff 
is  a  foreign  sovereign  whose  ship  cannot  be  ar- 
rested. The  Newbattle,  10  P.  D.  33  ;  54  L.  J., 
P.  16  ;  52  L.  T.  15  ;  33  W.  R.  318  ;  5  Asp.  M.  C. 
356—0.  A. 

Burden  of  Proof— Ship  at  Anchor.]— In  an 
action  founded  upon  a  collision  between  a  vessel 


at  anchor  and  one  in  motion,  the  burden  of  proof 
is  upon  the  owners  of  the  latter  to  prove  that  the 
collision  was  not  occasioned  by  any  negligence 
on  their  part.  The  Annot  Lyle,  11  P.  D.  114 ; 
55  L.  J.,  P.  62  ;  55  L.  T.  576  ;  34  W.  H.  647 ;  6 
Asp.  M.  0.  50— C.  A. 

In  an  action  for  damage  by  collision  it  ap- 
peared that  the  defendants'  vessel  while  in  motion 
came  into  collision  with  the  plaintiffs'  vessel 
which  was  at  anchor  : — Held,  that  the  fact  that 
the  plaintiffs'  vessel  at  the  time  of  the  collision 
was  at  anchor  and  could  be  seen  was  primA  facie 
evidence  of  negligence  on  the  part  of  the  de- 
fendants, and  that  the  burden  of  proof  was  then 
upon  them  to  rebut  the  presumption  of  liability, 
by  showing  either  that  the  collision  was  occa- 
sioned by  no  fault  on  their  part,  or  that  it  was 
due  to  inevitable  accident,  or  that  it  was  solely 
the  fault  of  a  pilot  who  was  on  board  their  Teasel 
by  compulsion  of  law.  Clyde  Navigation  Cm- 
party  v.  Barclay  (1  App.  Gas.  790)  considered. 
The  Indus,  12  P.  D.  46  ;  56  L.  J.,  P.  88  ;  56LT. 
376 ;  35  W.  R.  490  ;  6  Asp.  M.  C.  106-C.  A. 

Evidence  of  Negligence  —  Steam  Steeriig- 
gear.] — A  steamship  fitted  with  a  patent  steam 
steering-gear  ran  into  a  vessel  at  anchor  in  the 
Thames,  owing  to  the  steering-gear  suddenly  not 
acting ;  every  effort  was  unavailingly  made  to 
avoid  the  collision.  A  few  days  before,  on  the 
previous  voyage  of  the  same  steamship,  the  same 
apparatus  had  similarly  refused  to  act,  but  no 
cause  for  it  so  doing  could  be  seen  on  examina- 
tion. Large  numbers  of  the  gears  were  in  use 
on  steamers.  In  an  action  of  damage :— Held, 
first,  that  the  defendants  were  not  liable  for 
damage  caused  by  the  use  of  this  apparatus 
without  negligence.  Secondly,  that  the  use  of 
this  apparatus  on  the  Thames  after  it  had  acted 
wrongly  on  a  previous  occasion,  was  evidence  of 
negligence,  and  that  the  defendants  were  liable 
for  the  damage  caused  thereby.  The  Europe**, 
10  P.  D.  99  ;  54  L.  J.,  P.  61  ;  62  L.  T.  868;  33 
W.  B.  937  ;  5  Asp.  M.  C.  417— Butt,  J. 

Discontinuance  —  Limitation  of  Liability - 
Claim  against  Fund  in  Court— EstoppeL>-As 
action  having  been  brought  by  the  owners  of  the 
ship  E.  against  the  owners  of  ship  A.  for  damage* 
arising  out  of  a  collision,  an  agreement  was  drawn 
up  between  the  parties  that  the  action  be  "dis- 
continued without  costs  on  the  ground  of  inevit- 
able accident,"  and  an  order  in  those  terms  was 
drawn  up  in  the  Admiralty  Registry.  The 
owners  of  the  cargo  of  ship  E.  having  after* 
wards  brought  an  action  against  the  owners  of 
ship  A.  for  damages  arising  out  of  the  same  col- 
lision, both  ships  were  held  to  blame,  and  the 
cargo-owners  were  held  entitled  to  half  their 
damages.  The  owners  of  ship  A.  having  obtained 
a  decree  limiting  their  liability  and  having  paid 
a  sum  into  court,  the  cargo-owners  filed  theii 
claim  in  the  limitation  action.  The  owners  of 
ship  E.  having  afterwards  with  the  consent  of 
the  owners  of  6hip  A.  obtained  a  rescission  of 
the  order  for  discontinuance,  claimed  against 
the  fund  in  the  limitation  action.  The  cargo- 
owners  having  objected  to  this  claim :— Held, 
that  the  agreement  and  order  for  discontinuance 
(upon  their  true  construction)  did  not  amount 
to  a  release  of  all  claims,  and  that  the  owners 
of  ship  E.  were  not  precluded  from  claiming 
against  the  fund.  The  Bellcaim  (10  P.  D.  161) 
distinguished.    TheArd*ndk*or  Tke£re*?rUu, 


1697 


SHIPPING— Collision. 


1698 


12  App.  Cas.  266 ;  56  L.  J.,  P.  49 ;  56  L.  T.  345  ; 
35  W.  R.  783  ;  6  Asp.  M.  C.  124— H.  L.  (E.) 

Judgment  by  Consent — Setting  aside  by 
Consent  ] — In  an  action  by  the  owners  of  the 
*  Britannia "  against  the  owners  of  the  "  Bell- 
-cairn "for collision, a  judgment  dismissing  claim 
and  counter-claim  was  taken  by  consent.  Sub- 
sequently, the  owners  of  cargo  on  board  the 
-Britannia"  brought  an  action  against  the 
•owners  of  the  "  Bellcairn,"  and  obtained  a  judg- 
ment that  both  ships  were  to  blame.  The  owners 
-of  the  "  Bellcairn  "  then  limited  their  liability 
and  paid  the  money  into  court,  and  the  owners 
of  the  "  Britannia,"  having,  with  the  consent  of 
the  owners  of  the"  Bellcairn,"  obtained  an  order 
in  the  registry  setting  aside  the  judgment  in  the 
first  action,  brought  in  a  claim  against  the  fund 
in  court : — Held,  that  the  order  setting  aside  the 
judgment  of  the  court  was  void,  and  that  the 
owners  of  the  "  Britannia "  could  not  claim 
against  the  fnnd  in  court.  The  Bellcairn,  10 
F.  D.  161  ;  65  L.  J.,  P.  3  ;  53  L.  T.  686  ;  34 
W.  K.  55  ;  5  Asp.  M.  C.  503— C.  A. 

Sale  of  Ship  and  Cargo — Freight.  ]  —  Where 
in  an  action  in  rem  for  collision  against  ship 
and  freight,  in  which  the  defendants'  ship  was 
held  solely  to  blame,  the  ship  being  still  under 
arrest  with  the  cargo  on  board,  was  ordered  to  be 
sold ;  the  court  on  motion  directed  the  marshal  \ 
to  discharge  the  cargo,  to  retain  the  same  in  his 
custody  as  security  for  the  payment  of  the  land- 
ing and  other  charges  and  freight,  if  any,  due 
from  the  owners  or  consignees  of  the  cargo  in 
respect  of  the  same,  and  that  in  default  of  any 
application  for  the  delivery  of  the  cargo  within 
fourteen  days,  the  marshal  should  be  authorised 
to  sell  such  part  of  the  cargo  as  might  be  neces- 
sary to  pay  the  said  charges  and  freight,  if  any. 
doe.  The  Gettysburg,  52  L.  T.  GO  ;  5  Asp.  M.  C. 
347— Butt,  J. 

Beferenee — Evidence.] — On  a  reference  in  a 
collision  action  the  registrar  and  merchants  are 
not  bound  by  uncontradicted  evidence  as  to  the 
amount  of  damage  done,  but  are  entitled  to  use 
their  own  judgment  and  experience,  and  find  in 
accordance  therewith.  The  Bernina,  55  L.  T. 
Wl :  6  Asp.  M.  C.  65— Hannen,  P. 

Costs  —  Inevitable  Aeeident  —  Admission 
ia  Pleadings.] — The  plaintiffs  in  an  action  for 
damage  by  collision  admitted  on  the  pleadings 
that  the  collision  was  the  result  of  an  inevitable 
accident : — Held,  that  the  defendants  were  en- 
titled to  judgment  with  costs.  Unless  there  are 
special  circumstances  to  induce  the  court  to 
'depart  from  this  rule,  costs  will  be  given  against 
the  plaintiffs  in  an  action  of  damage,  whenever 
the  defendants  prove  that  the  collision  is  the 
result  of  an  inevitable  accident.  The  Naples, 
U  P.  D.  124  ;  55  L.  J.,  P.  64  ;  55  L.  T.  584  ;  35 
W.  R.  59 ;  6  Asp.  M.  C.  30— Butt,  J. 

Co-defendants — Costs  of  Successful  De- 
fendant]— The  dumb  barge  E.,  while  in  tow 
of  the  8teamtng  S.,  was  damaged  by  a  collision 
with  the  steamship  R.  L.  The  owners  of  the  E. 
commenced  an  action  joining  the  owners  of  both 
vessels  as  defendants.  At  the  trial  R.  L.  was 
found  alone  to  blame : — Held,  that  the  owners  of 
the  R.  L.,  having  endeavoured  to  throw  the  blame 
on  the  8.,  must  pay  her  costs  as  well  as  those  of 


the  plaintiffs.   The  River  Lagan,  67  L.  J.,  P.  28  ; 
68  L.  T.  773  ;  6  Asp.  M.  C.  281— Hannen,  P. 


Discontinuance— Compulsory  Pilotage.  ] 


— In  an  action  of  damage  by  collision,  the  defen- 
dants pleaded,  inter  alia,  that  their  vessel  at  the 
time  of  the  collision  was  compulsorily  in  charge 
of  a  licensed  pilot,  and  that  the  negligence,  if 
any,  which  caused  the  collision  was  solely  that  of 
the  pilot : — Held,  that  on  the  plaintiffs  discon- 
tinuing  their  action,  they  must  pav  the  defen- 
dants' costs.      The  J.  H.  Henke*,  \i  P.  D.  106  ; 


56  L.  J.,  P.  69  ;   56  L.  T.  581 
Asp.  M.  C.  121— Butt.  J. 


35  VV.  R.  412  :  6 


b.  What  Recoverable. 

Cost  of  Repairs — Restitutio  in  integrum — 
Lloyd's  Survey.] — A  successful  plaintiff  in  a 
collision  action  is  entitled  to  have  his  ship  put 
into  the  same  condition  in  which  it  was  previous 
to  the  collision  at  the  cost  of  the  wrongdoer, 
irrespective  of  the  fact  that  some  of  the  repairs 
necessitated  by  the  collision  would  shortly  have 
been  necessary  to  enable  the  ship  to  pass  her 
classification  survey,  and  in  estimating  the 
amount  of  the  wrong-doer's  liability  no  deduc- 
tion can  be  made  on  this  account.  The  Bernina, 
55  L.  T.  781 ;  6  Asp.  M.  C.  65 -Hannen,  P. 

Consequential  Damage  —  Rotten  Wood.  ]  — 
Where  a  ship  is  damaged  by  collision,  and  on 
optsning  her  up  to  effect  the  repairs  rendered 
necessary  by  the  collision  certain  parts  of  her 
not  injured  by  the  collision  are  found  to  be 
rotten,  and  to  require  renewing,  the  cost  of  such 
renewal  cannot  be  charged  to  the  collision 
damage,  although  such  parts  but  for  such  open- 
ing up  would  have  lasted  for  some  years.  The 
Princess,  52  L.  T.  932  ;  5  Asp.  M.  C.  451— D. 

Improper  Abandonment.] — Where  in  a 

collision  action  for  which  the  defendants  were 
held  to  blame,  the  court  found  that  after  the 
collision  the  plaintiffs1  vessel  had  been  impro- 
perly abandoned,  and  it  appeared  that  in  con- 
sequence thereof  she  sank  and  was  afterwards 
raised  by  the  plaintiffs,  whereas  she  might  have 
been  beached,  the  court  directed  the  registrar  in 
assessing  the  damages,  that,  as  the  only  ascer- 
tainable extra  cost  arising  from  the  abandonment 
was  the  cost  of  raising,  he  was  to  disallow  that 
amount.  The  Hansa,  58  L.  T.  530  ;  6  Asp.  M.  C. 
268— Butt,  J. 

Fishing  Boat— Fishing  Interrupted.] — 

A  French  fishing  brig  of  142  tons,  employed  in 
the  cod  fishery  off  the  banks  of  Newfoundland, 
came  into  collision  on  the  6th  of  July,  1881, 
with  an  Italian  barque,  and  in  consequence  of 
the  collision  was  compelled  to  put  into  port  for 
repairs,  but  her  repairs  having  been  completed, 
returned  to  the  fishing  ground  before  the  close 
of  the  fishing  season.  In  an  action  for  damage 
instituted  on  behalf  of  the  owners  of  the  brig 
against  the  barque,  the  court  pronounced  the 
barque  solely  to  blame  for  the  collision,  and 
referred  the  question  of  damages  to  the  registrar 
and  merchants.  At  the  reference  the  plaintiffs 
claimed  1,2001.  for  demurrage  of  their  vessel 
from  the  date  of  the  collision  to  the  26th  of 
August,  1881,  the  date  of  her  return  to  the 
fishing  ground ;  and  of  the  am  >unt  so  claime  I, 

3  1 


1699 


SHIPPING— CoUinon. 


1700 


the  registrar,  by  his  report,  allowed  the  plaintiffs 
8807.  as  the  loss  sustained  by  the  interruption  of 
their  fishing.  The  defendants  moved  the  court 
in  objection  to  the  report : — Held,  that  the 
motion  must  be  dismissed.  The  Bholuto,  8 
P.  D.  109  ;  52  L.  J.,  P.  46  ;  48  L.  T.  909  ;  31 
W.  E.  657  ;  5  Asp.  M.  C.  93— Sir  R.  Phillimore. 

Commission    on    Bail  —  Salvage  Action.]  — 

Commission  paid  for  bail  in  a  salvage  action  will 
not  be  allowed  as  part  of  the  damages  recoverable 
by  the  salved  vessel  in  an  action  of  damage. 
The  British  Commerce,  9  P.  D.  128  ;  53  L.  J., 
P.  72  ;  51  L.  T.  604  ;  33  W.  R.  200  ;  5  Asp.  M.  C. 
335— Butt,  J. 

Limitation  of  Liability — Compulsory  Pilotage 
— Admiralty  Rule.] — Sect.  54  of  the  Merchant 
Shipping  Amendment  Act,  1862,  which  limits 
the  liability  of  a  shipowner  to  a  certain  amount 
per  ton,  does  not  apply  to  a  case  where  two  ships 
are  to  blame  for  a  collision,  and  where  the  owners 
of  one  ship  are  relieved  from  all  liability  by  the 
owners  of  the  other,  under  s.  388  of  the  Merchant 
Shipping  Act,  1854,  on  the  ground  that  the 
damage  done  to  the  other  ship  was  caused  by  the 
fault  of  a  compulsory  pilot ;  but  under  the  Admi- 
ralty rules,  inasmuch  as  both  ships  are  to  blame, 
the  owners  of  the  ship  so  relieved  from  liability 
are  only  entitled  to  be  paid  by  the  owners  of  the 
other  ship  a  moiety  of  the  damage  caused  to 
their  ship.  The  Hector,  8  P.  D.  218  ;  52  L.  J., 
P.  51  ;  48  L.  T.  890  ;  31  W.  R.  881  ;  6  Asp. 
M.  C.  101— C.  A. 

8um  in  the  nature  of  Freight — Bill  of  Lading.  ] 
— A  ship  A.,  and  her  cargo,  belonged  to  the  same 
owners,  and  the  plaintiffs  advanced  1,0002.  as  a 
loan  to  such  owners,  and  received  as  security,  in 
conformity  with  the  agreement  made  between 
them  and  the  borrowers,  the  bill  of  lading,  on 
which  the  master  indorsed  the  receipt  for  1 ,000Z.as 
advanced  freight,  and  also  a  policy  of  insurance 
on  advanced  freight.  Ship  A.  was  lost  through 
a  collision  with  the  defendant's  vessel,  whose 
negligence  was  admitted.  It  was  proved  that 
the  difference  between  the  value  of  the  cargo  at 
the  port  of  destination  and  at  the  port  of  loading 
would  have  considerably  exceeded  1,0002.  In  an 
action  by  the  holders  of  the  bill  of  lading  for 
1,0002.  against  the  defendant's  ship  : — Held,  that 
the  plaintiffs  were  entitled  to  recover  the  sum, 
though  it  was  not,  strictly  speaking,  advanced 
freight,  but  a  prospective  increase  in  the  value 
of  the  cargo,  and  that  the  insurers  were  subro- 
gated to  the  rights  of  the  plaintiffs.  T/ie  Thya- 
tira,  8  P.  D.  155  ;  52  L.  J.,  P.  85  ;  49  L.  T.  406 ; 
32  W.  R.  276  ;  5  Asp.  M.  C.  147— Hannen,  P. 

Increase  of  Freight.] — The  E.,  which  was  on 
a  voyage  under  charter  from  Cardiff  to  Bombay 
with  coals,  was  run  into  by  the  B.,  shortly  after 
leaving  Penarth  Docks.  The  K.,  which  was 
considerably  damaged,  returned  to  Cardiff, 
where  her  cargo  was  taken  out  of  her  in  order 
that  she  might  be  repaired.  The  owners  of  the 
cargo  proposed  that  the  coals,  which  were  also 
damaged,  should  be  sold  and  a  fresh  cargo 
shipped.  The  shipowner,  however,  refused  to 
ship  a  fresh  cargo  except  "  on  fresh  terms  as  to 
freight,  &c,"  and  the  charterer,  without  inquir- 
ing what  the  fresh  terms  would  be,  reshipped 
the  damaged  cargo,  which  was  carried  to  Bom- 
bay : — Held,  that  the  shipowner,  having  a  lien  | 


on  the  cargo  for  freight,  was  entitled  to  insist 
on  the  original  cargo  being  reshipped  if  it  was 
capable  of  being  carried  to  its  destination,  and 
that  the  cargo-owner  was  not  entitled  to  insist 
on  its  delivery  without  payment  of  freight  :— 
Held,  further,  that  in  order  to  ascertain  the 
amount  to  be  paid  by  the  owners  of  the  wrong- 
doing ship,  it  was  necessary  to  estimate  what  the 
increased  freight  would  have  been,  before  com- 
paring the  loss  on  the  damaged  cargo  at  Bombay 
with  the  loss  which  would  have  arisen  on  the 
sale  of  the  cargo  at  Cardiff  and  shipping  a  fresh 
one.  The  Blenheim^  10  P.  D.  167  ;  54  L.  J.,  P. 
81  ;  53  L.  T.  916  ;  34  W.  R,  154 ;  5  Asp.M.C. 
522— Hannen,  P. 

Remoteness  of  Damage — Agreement  to  pro- 
vide Vessel  for  particular  Voyage— Absence  of 
definite  Charterparty.] — Previous  to  a  collision 
between  two  vessels,  the  owners  of  one  of  them 
had  made  an  oral  arrangement  with  a  firm  of 
shipbrokers  that  the  vessel  upon  the  completion 
of  the  voyage  upon  which  she  was  then  engaged 
should  go  to  Antwerp,  and  there  load  a  cargo  in 
turn  as  one  of  a  line  of  steamers,  and  proceed  by  a 
particular  route  to  the  Black  Sea.  In  consequence 
of  repairs  necessitated  by  the  collision,  the  vessel 
was  not  ready  to  start  for  Antwerp  so  as  to  load 
in  turn,  and,  by  arrangement,  another  smaller 
vessel  was  substituted  for  the  injured  vessel,  the 
latter  vessel  shortly  afterwards  taking  the  place 
of  the  substituted  vessel  on  a  less  remunerative 
route.  In  an  action  of  damage  the  owners  of  the 
injured  vessel  sought  to  recover  against  the 
owners  of  the  other  colliding  vessel  a  sum  repre- 
senting (1)  the  additional  profit  (calculated  on 
the  basis  of  the  profits  actually  made  by  the 
substituted  vessel)  which  would  have  been  earned 
but  for  the  substitution ;  (2)  the  loss  of  profit 
due  to  the  difference  in  size  of  the  two  vessels ; 
(3)  the  loss  of  time*  in  loading  the  injured  vessel 
for  the  substituted  route  : — Held  (Lord  Ether, 
M.R.,  dissenting),  that  evidence  of  the  profits 
made  by  the  substituted  vessel  was  inadmissible, 
and  that  the  damages  must  be  assessed  at  such  a 
sum  as  would  represent  what  a  vessel  of  the 
description  of  the  injured  vessel  mi^t  ordinarily 
and  fairly  be  expected  to  earn,  having  regard  to 
the  fact  that  a  contract  had  been  entered  into 
for  her  profitable  employment : — By  Lord  Usher, 
M.R.,  that  damages  in  respect  of  the  loss  of  the 
agreement  for  the  future  hiring  of  the  vessel 
were  too  remote  to  be  recovered.  The  Argent**** 
13  P.  D.  191  ;  58  L.  J.,  P.  1  ;  59  L.  T.  914 ;  37 
W.  E.  210— C.  A.  Affirmed  in  H.  L.,  W.  N., 
1889,  p.  167. 


Loss  of  Market]— A  ship  having  been 


damaged  by  a  collision  with  another  ship,  the 
owners  of  cargo  on  the  former  claimed  damages 
from  the  owners  of  the  latter  ship.  The  cargo- 
owners  claimed,  inter  alia,  for  damages  in  respect 
of  the  loss  of  market  in  consequence  of  a  portion 
of  the  cargo  having  been  delayed  in  its  arrival 
at  the  port  of  destination : — Held,  that  loss  of 
market  was  too  remote  a  consequence  to  be  con- 
sidered as  an  element  of  damage,  and  that  there 
was  no  difference  in  the  principles  which  regu- 
late the  measure  of  damages  in  an  action  of 
collision,  and  an  action  for  a  breach  of  dnty 
under  a  shipping  contract.  The  Watting  Silly 
9  P.  D.  105  ;  53  L.  J.,  P.  56  ;  51  L.  T.  «6  ;  82 
W.  R.  764  ;  5  Asp.  M.  C.  2il—0.  A.  Cp.  cases 
sub  tit.  Damages. 


1701 


SHIPPING— Collision. 


1702 


5.  LIMITATION    OF    LIABILITY. 
a.  In  what  Oases. 

Collision  with  Two  Ships — Separate  Acts  of 
legligenee.] — Where  a  ship  comes  into  collision 
with  two  Teasels  one  after  the  other,  there  being 
a  short  interval  between  the  two  collisions,  the 
shipowner  will  be  entitled  to  limit  his  liability 
to  8Z.  per  ton  (there  being  no  loss  of  life)  if  the 
first  collision  is  the  substantial  cause  of  the 
second,  and  there  is  no  separate  act  of  negli- 
gence on  the  part  of  those  in  charge  of  the 
plaintiffs  ship  in  respect  of  the  second  collision. 
The  Creadon,  54  L.  T.  880  ;  5  Asp.  M.  C.  585— 
Butt,  J. 

"  Improper  Navigation."]  — The  words  "  im- 
proper navigation  "  in  25  &  26  Vict.  c.  63,  s.  54, 
sub-s.  4,  are  not  to  be  restricted  to  the  negligent 
navigation  of  a  vessel  by  her  master  and  crew, 
for  the  statute  includes  all  damage  wrongfully 
done  by  a  ship  to  another  whilst  it  is  being 
navigated,  where  the  wrongful  action  is  due  to 
the  negligence  of  a  person  for  whom  the  owner 
is  responsible.  Therefore,  when  a  vessel,  owing 
to  the  negligence  of  a  person  on  shore  in  over- 
looking the  machinery,  steered  so  badly  that  she 
came  into  collision  with  another  vessel,  in  an 
action  for  limitation  of  liability,  the  court  gave 
a  decree  in  her  favour  on  the  ground  that  the 
statute  applied  to  such  a  case.  Tlie  Warhworth, 
9  P.  D.  145  ;  53  L.  J.,  P.  65  ;  51  L.  T.  558 ;  33 
W.  B.  112  ;  5  Asp.  M.  C.  326— C.  A. 

Claims  for  Loss  of  Life  8ettled.] —  In  an 
action  for  limitation  of  liability,  where  it  ap- 
peared that  all  the  claims  in  respect  of  loss  of 
life  had  been  settled,  the  court  ordered  that 
upon  payment  in  of  SI.  per  ton,  all  persons 
having  any  claim,  either  in  respect  of  loss  of 
life  or  damage  to  ship,  goods,  or  merchandise, 
should  be  restrained  from  bringing  any  action  in 
respect  of  the  collision.  The  Foscolino,  52  L.  T. 
866  ;  5  Asp.  M.  C.  420— Butt,  J. 

Two  Ships  to  Blame.]— Sect.  54  of  the  Mer- 
chant Shipping  Amendment  Act,  1862,  which 
limits  the  liability  of  a  shipowner  to  a  certain 
amount  per  ton,  does  not  apply  to  a  case  where 
two  ships  are  to  blame  for  a  collision,  and  where 
the  owners  of  one  ship  are  relieved  from  all 
liability  by  the  owners  of  the  other,  under  s.  388 
of  the  Merchant  Shipping  Act,  1854,  on  the 
ground  that  the  damage  done  to  the  other  ship 
was  caused  by  the  fault  of  a  compulsory  pilot. 
The  Hector,  8  P.  D.  218 ;  52  L.  J.,  P.  51 ;  48 
L.  T.  890 ;  31  W.  R.  881  ;  5  Asp.  M.  C.  101— 
C.  A. 

b.  Practice. 

Claim  against  Fund— Eight  of  Crown— Time.] 
— The  Crown  may  claim  against  a  fund  paid 
into  court  by  the  owners  of  a  ship  in  order  to 
limit  their  liability  under  the  Merchant  Shipping 
Acta,  1854  and  1862,  by  the  general  law,  and 
also  under  the  Admiralty  Suits  Act,  1868  (31 
k,  32  Vict.  c.  78),  s.  3.  A  claim  against  a  fund 
paid  into  court  in  a  suit  for  limitation  of  lia- 
bility under  the  Merchant  Shipping  Acts,  1854 
and  1862,  is  not  necessarily  excluded  by  the  fact 
that  the  time  fixed  by  the  order  of  the  court  for 
entering  claims  has  elapsed.    The  Zoe,  11  P.  D. 


72 ;  65  L.  J.,  P.  52  ;  54  L.  T.  879  ;  35  W.  B.  61  ; 
5  Asp.  M.  C.  583— Butt,  J. 

Discontinuance.]—^  The  Ardandhu  or  Tit* 
Kronprim,  ante,  col.  1696. 

Priorities  of  Claimants.]  —  The  plaintiffs  in 
an  action  to  limit  their  liability  paid  into  court 
the  sum  of  7,8622.  0*.  10rf.,  being  the  amount  of 
their  statutory  liability  at  the  rate  of  15Z.  per 
ton.  The  amount  so  paid  into  court  being  in- 
sufficient to  satisfy  in  full  claims  against  the 
plaintiffs  in  respect  of  loss  of  life  and  loss  of 
goods,  the  registrar,  by  his  report,  found  that  the 
claimants  in  respect  of  loss  of  life  were  entitled 
to  be  paid  out  of  the  sum  in  court  an  amount 
equal  to  71,  per  ton,  and  that  they  and  the 
claimants  in  respect  of  loss  of  goods  should  rank 
pari  passu  against  the  balance  representing  8/. 
per  ton.  On  objection  to  the  report : — Held, 
that  the  report  was  right,  as  the  court  had  power 
to  marshal  the  assets,  and  that  the  claimants  in 
respect  of  loss  of  goods  had  no  right  in  priority 
to  the  claimants  in  respect  of  loss  of  life  against 
the  sum  representing  8/.  per  ton.  The  Victoria, 
13  P.  D.  125  ;  57  L.  J.,  P.  103  ;  59  L.  T.  728  ;  37 
W.  B.  62— Butt,  J. 

Admissions  in  Pleadings.] — Sje  The  Karo, 
ante,  col.  1695. 

Registered  Tonnage.]— The  tonnage  in  respect 
of  which  shipowners  are  entitled  to  limit  their 
liability  under  s.  54  of  the  Merchant  Shipping 
Act  Amendment  Act,  1862,  is  the  tonnage  ap- 
pearing on  the  ship's  register  which  was  in  force 
at  the  time  of  the  collision.    The  Diane,  infra. 

Foreign  Ship— Crew  Space.]— The  owners 

of  a  foreign  ship  with  a  closed-in  space  on  the 
upper  deck  solely  appropriated  to  the  berthing 
ox  the  crew,  are  entitled,  in  limiting  their  lia- 
bility, to  deduct  such  space  under  the  Merchant 
Shipping  Act,  1854,  s.  21,  sub-s.  4,  though  the 
provisions  of  the  Merchant  Shipping  Act,  1867, 
s.  9,  have  not  been  complied  with.  The  Fran- 
conia  (3  P.  D.  164)  explained.  The  Palermo,  10 
P.  D.  21  ;  54  L.  J..  P.  46  ;  52  L.  T.  390  ;  33  W. 
B.  643  ;  5  Asp.  M.  C.  369— Butt,  J. 

Life  Claims  —  Payment  into  Court]  — In  an 
action  of  limitation  of  liability,  where  the 
plaintiffs  have  paid  into  court,  or  are  willing  to 
pay  in  8/.  per  ton  in  Tespect  of  damage  to  ship, 
goods,  and  merchandise,  bat  seek  in  respect  of 
the  life  claims  to  pay  into  court,  or  give  bail  for 
an  amount  less  than  their  total  liability  under 
the  Merchant  Shipping  Act,  the  court,  before 
fixing  such  amount,  will  require  the  plaintiffs  to 
state  on  affidavit  the  names,  of  the  persons  killed 
and  injured,  their  condition  in  life,  the  number 
of  those  who  are  legally  entitled  to  claim,  the 
number  of  claims  that  have  been  settled,  and  the 
amounts  paid  in  settlement.  The  J)ionet  52  L. 
T.  61  ;  5  Asp.  M.  C.  347— Butt,  J. 

Jurisdiction  of  Chancery  and  Admiralty  Divi- 
sions.]— An  action  in  rem  against  a  foreign  ship 
under  Lord  Campbell's  Act  (9  &  10  Vict  c.  93, 
s.  2),  is  not  within  the  Admiralty  Court  Act, 
1861  (24  Vict.  c.  10,  a  7),  and  therefore  the 
Admiralty  Division  has  not  jurisdiction  over 

3  I  2 


1703 


SHIPPING— Salvage  and  Towage. 


1704 


such  an  action.  The  Chancery  and  Admiralty 
Divisions  may  entertain  such  a  claim  in  an 
action  for  limitation  of  liability,  under  their 
general  statutory  jurisdiction  as  to  limitation  of 
liability.  Per  Brett,  M.  B.  The  Vera  Cruz,  9 
P.  D.  96  ;  58  L.  J..  P.  33  ;  51  L.  T.  104  ;  32  W. 
R.  783 ;  5  Asp.  M.  C.  270— C.  A.  See  8.  C,  in 
H.  L.,  post,  col.  1720. 


XTII.    SALVAGE   AHD   TOWAGE. 
1.    SERVICES  ENTITLING   TO   SALVAGE. 

Dependent  on  Success.  ]— The  C.  broke  down 
in  the  English  Channel  ten  miles  from  Anvil 
Point,  and  was  then  in  a  position  of  risk,  but 
not  of  imminent  danger.  The  H.  at  her  request 
took  the  C.  in  tow ;  near  the  Shambles  the 
hawsers  parted,  and  the  C.  then  anchored  and 
was  in  a  position  of  considerable  danger,  greater 
than  when  the  H.  took  her  in  tow.  The  H.  was 
unable  to  make  fast  a  hawser  again,  and  in 
trying  to  do  so,  came  into  collision  with  the  C. 
The  H.  then  left  the  C,  which  was  soon  after 
taken  in  tow  by  two  tugs  and  brought  in  safety 
to  Portland :— Held,  that  the  H.  was  not  entitled 
to  salvage.  The  India  (1 W.  Bob.  406)  followed. 
The  Cheerful,  11  P.  D.  3  ;  66  L.  JM  P.  5  ;  64  L. 
T.  66 ;  34  W.  B.  307  ;  5  Asp.  M.  C.  625— Butt,  J. 

Distinction  between  Salvage  and  Pilotage.]— 
A  pilot  on  a  salved  ship  who  rendered  trifling 
assistance  by  helping  at  the  wheel  and  windlass, 
held  not  entitled  to  salvage.  The  Monarch,  12 
P.  D.  5  ;  56  L.  J.,  P.  114  ;  56  L.  T.  204 ;  36  W.  B. 
292  ;  6  Asp.  M.  C.  90— Hannen,  P. 

In  an  action  for  salvage  it  appeared  that  on 
March  20,  about  11  A.M.,  the  plaintiffs'  fishing- 
smack  fell  in  with  the  defendants'  vessel  which 
was  showing  an  English  Jack  flag  in  her  rigging, 
in  1  he  North  Sea, forty  miles  from  Lowestoft.  The 
crew  of  the  vessel  were  suffering  from  frost-bite, 
the  helmsman  in  consequence  steering  with  one 
hand.  They  were  also  short  of  provisions.  They 
told  the  master  of  the  smack  that  they  wished 
to  be  piloted  to  the  nearest  port,  the  vessel 
being  at  this  time  out  of  pilotage  waters,  and  he 
agreed  to  take  and  took  the  vessel  to  Great 
Yarmouth  : — Held,  that  even  assuming  that  the 
signal  exhibited  by  the  defendants1  vessel  was 
ambiguous,  the  assistance  rendered  to  her  was  in 
the  circumstances  a  salvage  service,  and  that 
the  plaintiffs  were  entitled  to  remuneration  ac- 
cordingly. The  Aglaia,  13  P.  D.  160  ;  57  L.  J., 
P.  106  ;  59  L.  T.  528 ;  37  W.  B.  255— D. 

Distinction  between  Salvage  and  Towage.] — 
Where  a  steamship,  disabled  by  the  breaking  of 
her  crank-shaft,  was  towed  a  distance  of  about 
thirty  miles  without  danger  or  risk  by  another 
steamship  belonging  to  the  same  owners  as  the 
disabled  vessel,  and  fifteen  of  the  crew  of  the 
towing  vessel  instituted  a  salvage  action  in  the 
sum  of  5,000/.  against  the  vessel  towed,  and 
arrested  the  vessel,  cargo,  and  freight  therein, 
the  court  held  such  services  to  be  salvage  services, 
but  of  so  slight  a  character  that  on  a  value  of 
105,500?.  it  awarded  151.,  and  ordered  the  salvors 
to  pay  all  the  costs  of  the  action,  expressing  dis- 
approbation both  at  the  institution  of  the  action 
in  the  High  Court,  and  at  the  arrest  of  the  vessel 
for  such  an  amount  The  Agamemnon,  48  L.  T. 
880 ;  5  Asp.  M.  C.  92— Butt,  J. 


The  V.  fell  in  with  the  C,  shewing  signals  of 
distress,  with  her  propeller  shaft  broken,  about 
thirty  miles  out  of  her  usual  course  from  America 
to  England,  and  took  her  in  tow.  After  the  V. 
had  towed  the  C.  from  8.10  p.m.  to  7.45  the 
hawser  broke,  and  owing  to  the  danger  to  the 
cattle  on  board,  the  V.  would  not  take  the  C. 
again  in  tow.  By  the  services  of  the  V.  the  C. 
was  brought  ten  to  fourteen  miles  Dearer  her 
proper  track,  and  towed  eighty-fire  miles  on  her 
course,  and  thus  brought  into  greater  compara- 
tive safety.  The  C.  subsequently  arrived  safely 
at  Queenstown  : — Held,  that  the  V.  was  entitled 
to  some  salvage  reward,  and  she  was  accordingly 
awarded  2001.  The  Camellia,  9  P.  D.  27 ;  68 
L.  J.,  P.  12  ;  50  L.  T.  126  ;  32  W.  R.  495 ;  5  Asp. 
M.  C.  197— Hannen,  P. 


2.    LIFE    SALVAGE. 

Ho  Property  saved.] — A  steamship  was  re- 
quested by  another  steamship  in  distress  to 
stand  by  her.  An  agreement  was  accordingly 
made  between  the  two  masters  for  a  fixed  sum 
that  the  sound  vessel  would  remain  by  the 
damaged  one  until  she  was  in  a  safe  position  to 
get  to  port.  The  sound  vessel  remained  by  the 
damaged  one  until  the  latter  was  about  to  sink, 
when  she  took  her  crew  on  board,  and  the 
damaged  steamer  immediately  afterwards  sank. 
The  owners,  master  and  crew  of  the  salving  ship, 
brought  an  action  for  life  salvage : — Held,  that 
as  no  res  was  saved  the  action  would  not  lie 
either  as  a  salvage  action  simply  or  on  the  agree- 
ment. The  Eenpor,  8  P.  D.  115 ;  52  L.  J.,  P. 
49  ;  48  L.  T.  887  ;  31  W.  R.  640 ;  5  Asp.  M.  a 
98— C.  A. 


Wreck  raised  by  Thames  Conservators— 


Damages  recovered  from  wrongdoing  Ship.]— 

The  defendants1  vessel  having  been  sunk  in  the 
River  Thames  by  a  collision  occasioned  by  the 
fault  of  another  vessel,  the  conservators,  acting 
under  20  k  21  Vict,  c.  cxlvii.  8.  86,  caused  it 
to  be  raised  and  sold,  and  the  proceeds  of  the 
sale  being  insufficient  to  defray  the  expenses  of 
raising  it,  they  recovered,  under  s.  86,  the 
amount  of  the  deficiency  from  the  defendants. 
The  defendants  on  their  part  recovered  the  fall 
value  of  their  vessel  from  the  owners  of  the 
vessel  which  was  to  blame  for  the  collision.  In 
an  action  for  salvage  in  respect  of  the  preserva- 
tion of  the  lives  of  the  crew  of  the  defendants' 
vessel  at  the  time  of  the  collision  : — Held,  that 
the  salvors  could  not  recover;  that  the  defen- 
dants' vessel  not  having  been  saved  there  was 
nothing  to  which  the  claim  for  life  salvage  could 
attach;  and  that  it  could  not  be  preferred 
against  the  defendants  in  respect  of  the  amount 
recovered  as  damages  from  tne  vessel  to  blame 
for  the  collision.  The  Annie,  12  P.  D.  50;  56 
L.  J.,  P.  70  ;  56  L.  T.  500 ;  35  W.  R.  366  ;  6  Asp. 
M.  C.  117— Hannen,  P. 

Amount.] — in  a  case  of  salvage  the  court, 
having  out  of  the  proceeds  of  ship  and  cargo, 
amounting  to  608Z.,  awarded  one-half  to  salvon 
of  property,  awarded  150/.  to  life  salvors 
taking  off  the  crew,  together  with  costs  to  both 
plaintiffs.  The  Anna  Helena,  49  L.  T.  204 ;  6 
Asp.  M.  C.  142— Hannen,  P. 


1705 


SHIPPING—  Salvage  and  Towage. 


1706 


3.    PERSONS   ENTITLED   TO   SALVAGE. 

Salving  and  Salved  Ships  belonging  to  game 
Owners— Master  and  Crew.]— A  steamship  laden 
with  cargo  became  disabled  at  sea  in  consequence 
of  the  breaking  of  her  crank  shaft.  Such  break- 
age was  caused  by  a  latent  defect  in  the  shaft, 
arising  from  a  flaw  in  the  welding,  which  it  was 
impossible  to  discover.  Her  cargo  was  shipped 
under  bills  of  lading  which  contained  among  the 
excepted  perils  "  all  and  every  the  dangers  and 
accidents  of  the  seas  and  of  navigation  of  what- 
soever nature  or  kind."  Another  vessel  belonging 
to  the  same  owners  towed  the  disabled  vessel  to 
a  place  of  safety.  In  an  action  of  salvage  brought 
by  the  owners,  masters,  and  crew  of  the  salving 
vessel  against  the  owners  of  cargo  on  the  salved 
ship:— Held,  that  the  master  and  crew  were 
entitled  to  salvage,  but  that  the  owners  were  not, 
for  that  there  was  an  implied  warranty  by  them 
that  the  vessel  was  seaworthy  at  the  beginning 
of  the  voyage.  The  Glen/ruin,  10  P.  D.  103  ;  54 
L.  J.,  P.  49  ;  52  L.  T.  769  ;  33  W.  R.  826  :  6  ABp. 
M.  C.  41 3— Butt,  J. 

A  steamship  became  disabled  at  sea  owing  to 
the  breaking  of  her  fly-wheel  shaft,  through  a 
flaw  in  the  welding  existing  at  the  commencement 
of  the  voyage,  but  not  discoverable  by  the  exer- 
cise of  any  reasonable  care.  The  cargo  on  board 
her  was  shipped  under  three  bills  of  lading,  the 
first  of  which  contained,  amongst  other  excepted 
perils,  the  clause  : — "  warranted  seaworthy  only 
so  far  as  ordinary  care  can  provide  ;"  the  second  : 
"  warranted  seaworthy  only  as  far  as  due  care  in 
the  appointment  or  selection  of  agents,  superin- 
tendents, pilots,  masters,  officers,  engineers,  and 
crew  can  ensure  it ; "  and  the  third  :  "  owners 
not  to  be  liable  for  loss,  detention,  or  damage  .  .  . 
if  arising  directly  or  indirectly  .  .  .  from  latent 
defects  in  boilers,  machinery,  or  any  part  of  the 
vessel  in  which  steam  is  used,  even  existing  at 
time  of  shipment,  provided  all  reasonable  means 
have  been  taken  to  secure  efficiency."  A  vessel 
belonging  to  the  same  owners  towed  the  disabled 
▼easel  to  a  place  of  safety.  In  an  action  of  sal- 
vage brought  by  the  owners,  master  and  crew  of 
the  salving  vessel  against  the  owners  of  cargo  in 
the  salved  vessel : — Held,  that  the  owners  of  the 
salving  vessel  (though  at  the  same  time  owners  of 
the  salved  vessel)  were  entitled  to  salvage,  and  that 
the  owners  of  the  cargo  had  no  remedy  for  breach 
of  the  contract  of  carriage,  for  the  exceptions  in 
the  bills  of  lading  were  such  as  to  constitute  a 
limited  warranty  of  seaworthiness  at  the  com- 
mencement of  the  voyage,  which  limited  warranty 
had  been  complied  with  by  the  ship-owners. 
Cargo  ex  Laertes,  12  P.  D.  187  ;  56  L.  J.,  P.  108  ; 
57  L.  T.  602  ;  36  W.  R.  Ill ;  6  Asp.  M.  C.  174— 
Butt,  J.  See  also  The  Agamemnon,  ante,  col.  1703. 

Government  Transport  —  Regulations  for 
Transport  Service — Ch>vernment  Stores.] — The 
owners,  master,  and  crew  of  a  steamship  char- 
tered to  the  Government  as  a  transport  under  the 
ordinary  form  of  Government  charter,  incor- 
porating the  transport  regulations  (by  which  it 
ii  provided  that  "  when  necessary,  steam  trans- 
ports will  be  required  to  tow  other  vessels  ")  are 
entitled  to  recover  for  salvage  services  rendered 
to  a  ship  and  her  freight,  even  though  the  services 
be  rendered  with  the  assistance  of  a  naval  officer 
and  naval  seamen,  and  the  salved  vessel  be  laden 
(inter  alia)  with  government  stores.  The  Bertie, 
W  L.  T.  520  ;  6  Asp.  M.  C.  26— Hannen,  P. 


Queen's  Ship.] — A  vessel  with  a  valuable  cargo 
on  board,  struck  on  a  reef  on  an  uninhabited 
island  in  the  Red  Sea  near  the  mainland  ;  and 
the  crew  began  to  jettison  part  of  the  cargo, 
which  they  threw  into  shallow  water.  Armed 
Arabs  then  crossed  over  from  the  mainland  and 
began  to  plunder  the  jettisoned  cargo.  A  Queen's 
ship  having  come  up,  her  commander  anchored 
near  the  wrecked  vessel,  and  sent  a  number  of 
his  crew  to  act  as  sentinels  on  the  beach  of  the 
mainland,  who  were  posted  for  about  a  mile  along 
the  beach,  and  were  exposed  to  severe  heat. 
Others  of  the  crew  were  employed  in  discharging 
the  cargo,  working  up  to  their  waists  in  water  in 
the  hold,  which  was  greatly  fouled.  They  threw 
out  the  cargo  and  hauled  it  across  the  reef  to  the 
mainland,  where  it  was  collected  by  the  sentinels 
and  labourers.  In  an  action  of  salvage  by  the 
commander  and  crew  of  the  Queens  ship : — Held, 
that  the  services  rendered  by  them  being  beyond 
the  scope  of  their  public  duty  were  salvage 
services,  and  that  they  were  entitled  to  remune- 
ration accordingly.  Cargo  ex  Zflytsee,  13  P.  D. 
205  ;  58  L.  J.,  P.  11  ;  60  L.  T.  Ill ;  37  W.  R.  270 
— Hannen,  P. 

Intention  of  Salvor— Mistake  of  Fact.]— Where 
a  person  renders  services  in  a  nature  of  salvage 
to  a  vessel  which  he  at  the  time  bona  fide  believes 
to  be  his  own  by  purchase  or  otherwise,  he  is  not 
precluded  from  recovering  salvage  reward  in 
respect  of  such  services  because  it  turns  out  in 
fact  that  the  vessel  was  not  his  property.  The 
provisions  of  s.  450  of  the  Merchant  Shipping 
Act,  1854,  requiring  a  person  who  finds  or  takes 
possession  of  a  wreck  to  give  notice  to  the  receiver, 
are  not  applicable  to  the  case  of  a  person  who 
takes  possession  of  a  stranded  vessel  under  the 
belief  that  he  is  the  purchaser  thereof,  and  in 
such  a  case  these  provisions  do  not  operate  to 
deprive  him  of  his  right  to  recover  salvage.  The 
Liffey,  58  L.  T.  351;  6  Asp.  M.  0.  255— 
Hannen,  P. 


4.    RIGHTS    OF   SALVORS. 

To  retain  Possession  of  Vessel.] — Where 
salvors  have  brought  a  vessel  into  a  position  of 
safety  they  are  bound,  on  demand  by  the  owners, 
to  deliver  up  possession  of  the  salved  property, 
and  have  no  riarht  to  retain  it  for  the  alleged 
purpose  of  completing  the  repairs.  If  the  vessel 
is  at  the  time  of  the  demand  in  such  a  critical 
position  that  there  may  be  risk  of  loss  or  damage 
to  her  unless  the  salvors  are  allowed  to  complete 
their  operations,  semble  that  the  salvors  may 
retain  possession  pending  their  completion.  The 
Pinnae,  59  L.  T.  526 ;  G  Asp.  M.  C.  313— 
Hannen,  P. 

Misconduct  of  Salvors.]  —  The  master  and 
crew  of  the  Y.,  a  vessel  in  distress,  got  on  board 
the  K.,  a  steamer  standing  by  her.  The  mate 
and  two  of  the  crew  of  the  K.  afterwards  went 
on  board  the  Y.  but  refused  to  take  her  master 
back  with  them.  The  mate  subsequently  also 
refused  the  services  of  a  steam-tug,  and  finally 
having  from  want  of  local  knowledge  anchored 
the  Y.  in  an  insecure  place,  she  began  to  drift, 
was  forsaken  by  the  salvors,  and  sank.  She  was 
subsequently  raised  by  her  owners  at  consider- 
able expense.  In  an  action  for  salvage  the 
owners  of  the  Y.  denied  that  a  reward  was  due 


1707 


SHIPPING— Salvage  and  Towage. 


1708 


and  counter-claimed  for  damages : — Held,  that 
the  mate  was  guilty  of  misconduct  in  refusing 
to  take  the  master  of  the  Y.  on  board  of  her. 
and  to  engage  the  services  of  the  tag ;  bat  that 
if  the  T.  had  been  ultimately  saved  such  miscon- 
duct would  have  worked  a  partial  forfeiture  of 
the  reward  only : — Held,  further,  that  as  the 
loss  arising  from  the  misconduct  of  the  salvors 
was  probably  equal  to  that  from  which  the  Y. 
was  first  rescued,  no  salvage  reward  was  due. 
The  Yan-Ycan,  8  P.  D.  147  ;  52  L.  J.,  P.  67  ;  49 
L.  T.  186 ;  31  W.  R.  950 ;  5  Asp.  M.  C.  136— 
Hannen,  P. 


5.    SALVAGE    AGREEMENTS. 

Implied  Authority  of  Master.]— Observations 
as  to  the  implied  authority  of  shipmasters  to 
enter  into  salvage  agreements.  The  Renpor, 
8  P.  D.  115 ;  62  L.  J.,  P.  49  ;  48  L.  T.  887  ;  31 
W.  R.  640  ;  5  Asp.  M.  C.  98— Per  Brett,  M.R. 

Validity— Action  by  Seamen.  ]— An  agreement 
was  made  between  the  masters  of  the  W.  and 
the  N.,  which  was  in  need  of  assistance,  that  the 
W.  should  tow  the  N.  to  Queenstown  for  the  sum 
of  2001.  There  was  no  evidence  at  the  trial  to 
shew  that  the  master  of  the  W.  consulted  the 
officers  and  crew  as  to  the  terms  of  the  agree- 
ment. The  service  was  duly  performed,  and 
subsequently  thirteen  of  the  officers  and  crew  of 
the  W.  brought  an  action  of  salvage  against  the 
N.  The  defendants  pleaded,  inter  alia,  that 
they  had  tendered  2001.  to  the  owners  of  the  W., 
but  this  sum  was  not  paid  into  court : — Held, 
that  the  agreement  must  be  upheld,  and  the 
200Z.  apportioned  amongst  the  owner  and  crew 
of  the  W.  Held,  also,  that  when  a  fair  salvage 
agreement  has  been  made  in  a  bonft  fide  manner 
by  the  masters  of  the  salving  and  the  salved 
vessels  the  officers  and  seamen  of  the  salving 
ship  ought  not  to  bring  an  action  of  salvage,  and 
that  the  plaintifEB  must  therefore  pay  the  costs 
of  the  action.  The  Natmyth,  10  P.  D.  41 ;  54 
L.  J.,  P.  63  ;  62  L.  T.  392  ;  33  W.  R.  736  ;  5  Asp. 
M.  C.  364— Butt,  J. 

Liability  of  Shipowner  for  Value  of  Ship, 
Freight,  and  Cargo.] — An  agreement  made  by 
the  master  of  a  vessel  in  distress  to  pay  salvors  a 
fixed  sum  is  an  agreement  made  on  behalf  of 
and  pledging,  the  credit  of  the  shipowners,  so  as 
to  make  them  liable  to  the  salvors  for  the  whole 
amount  so  agreed  upon,  and  not  merely  for  such 
proportion  of  such  amount  as  the  value  of  the 
ship  and  freight  bears  to  the  value  of  the  cargo. 
The  Rauby  (10  P.  D.  114)  distinguished.  The 
Cumbrian,  57  L.  T.  205 ;  6  Asp.  M.  C.  151 — 
Butt,  J. 

A  vessel,  the  value  of  which  was  3,500Z.,  and 
the  cargo  of  which  was  worth  14,0002.,  having 
been  for  three  days  on  rocks  in  Castraes  Bay,  in 
the  Gulf  of  Tartary,  the  master  entered  into  an 
agreement  with  the  salvors  to  pay  them  2002. 
for  each  day  of  service,  and  a  further  sum  of 
2,0002.  in  the  event  of  the  vessel  being  got  or 
coming  off  the  rocks  during  the  continuance  of 
the  attendance  of  the  salvors  : — Held,  that  the 
agreement  was  fair  and  reasonable  and  binding 
on  the  owners  of  the  vessel,  and  that  the  owners 
of  the  vessel  were  liable  for  the  whole  amount 
agreed  upon  without  any  deduction  in  respect  of 
the  salvage  of  the  cargo.    The.  Rauby  (10  P.  D, 


114)  distinguished.  The  Prinz  Heinrick,  13 
P.  D.  31 ;  57  L.  J.,  P.  17  ;  58  L.  T.  593;  36 
W.  R.  511 ;  6  Asp.  M.  C.  273— Butt,  J. 


Avenge  Bond.]— The  G.  fell  in  with  the 


R.  which  was  in  distress.    The  following  agree- 
ment was  signed  by  the  two  captains :  "  At  my 
request  the  captain  of  the  G.  will  tow  my  ship 
the  R.  to  St.  Nazaire,  that  being  the  nearest 
port,  for  repairs.    The  matter  of  compensation 
to  be  left  to  arbitrators  at  home."  The  G.  towed 
the  R.  safely  to  St.  Nazaire.    The  R.  discharged 
her  cargo  at  Dunkirk,  and  an  average  bond  in 
the  usual  form  was  taken  from  the  consignees  of 
the  cargo.    The  owners  of  the  G.  brought  an 
action  for  salvage  of  the  ship  and  freight  against 
the  R.,  and  were  awarded  salvage.    They  also 
brought  an  action  in  France  for  the  salvage  of 
the  cargo  against  the  cargo-owners,  but  failed  in 
it.    They  den  brought  this  action  in  personam 
against  the  owners  of  the  R.  to  recover  salvage 
in  respect  of  the  services  to  the  cargo,  or,  in  the 
alternative,  damages  from  the  defendants,  for 
not  taking  a  proper  bond  to  secure  salvage  from 
the  cargo-owners : — Held,  that  the  defendants 
were  not   primarily  liable  to  pay  salvage  in 
respect  of  the  cargo,  that  they  had  not  bound 
themselves  by  the  above  agreement  to  do  so, 
and  that  it  was  not  their  doty  to  obtain  a  bond 
from  the  cargo-owners  for  the  proportion  of  any 
salvage  which  might  be  due.     The  Rdithf  or 
Cardiff  Steamship  Company   v.  Rarwieh,  10 
P.  D.  114;   54  L.  J.,  P.  65 ;   53  L.  T.  56;  33 
W.  R.  938  ;  5  Asp.  M.  C.  473— Hannen,  P. 


6.    RIGHT    TO    RECOVER    SALVAGE 
EXPENSES. 

Negligent  Navigation  —  Bight  of  Owner  «f 
Cargo  against  Shipowner.] — The  plaintiffs  under 
a  charterparty  shipped  a  large  quantity  of  rye 
on  board  one  of  the  defendants'  ships,  to  be 
carried  from  the  port  of  T.  to  the  port  of  A. 
Owing  to  the  negligent  navigation  of  the  defen- 
dants1 servants  the  ship  was  cast  ashore,  and  a 
large  quantity  of  the  rye  was  lost ;  but  a  con- 
siderable quantity  was  saved  by  the  Salvage 
Association,  who  were  employed  by  the  under- 
writers of  the  cargo  with  the  assent  of  the 
defendants.     The  average  statement  was  pre- 
pared, and  the  sum  assessed  was  agreed  to  by 
the  plaintiffs,  and  the  Salvage  Association  were 
paid  by  the  underwriters  the  expenses  claimed 
by  them.    The  plaintiffs  brought  their  action  to 
recover  the  amount  of  the  salvage  expenses  so 
paid  by  the  underwriters.    The  plaintiffs  re- 
covered a  verdict  for  an  amount  to  be  settled 
out  of  court.    The  question  of  law  involved  in 
the  case  was  reserved  for  further  consideration. 
The  defendants  contended  that  they  were  not 
liable  because  the  plaintiffs  themselves  bad  not 
paid  the  expenses,  and  the  payment  under  the 
circumstances  was  voluntary : — Held,  on  further 
consideration,  that  the  plaintiffs  were  entitled 
to  recover  the  amount  of  the  salvage  expenses, 
as,  without  their  being  incurred,  the  remainder 
of  the  cargo  could  not  have  been  sent  to  its 
destination,  which  was  for  the  benefit  of  the 
defendants,  and  that  the  payment  under  the 
circumstances  was  not  voluntary.    jSc*r*ma*fa 
v.  Marquand,  1   C.  &  E.  600— Huddleston,  B. 
Affirmed  53  L.  T.  810;  5  Asp.  M.  C.  606— C.  A. 


1709 


SHIPPING— Salvage  and  Towage. 


1710 


AMOUNT  AWARDABLE. 


sw  Principles  on  which  Award  made. 

Value  of  Property— Perils  of  Salving'  8hip — 
Possibility  of  Assistance — Character  of  Service.] 
—In  estimating  the  amount  of  a  salvage  remu- 
neration the  court  takes  into  consideration,  first, 
the  value  of  the  property  saved,  and  next  the 
actual  perils  from  which  it  has  been  saved.  In 
•considering  the  perils,  the  possibility  of  assist- 
ance being  rendered  to  the  vessel  in  peril  must 
be  taken  to  lessen  the  amount  to  be  awarded. 
The  value  of  the  Balving  ship  will  not  substan- 
tially affect  the  amount  of  the  reward,  but  the 
length  of  time  to  which  she  is  exposed  to  addi- 
tional risks  is  a  material  element  for  considera- 
tion. The  Werra.  12  P.  D.  52  ;  56  L.  J.,  P.  53  ; 
56  L.  T.  580 ;  35  W.  R.  552  ;  6  Asp.  M.  C.  115— 
Hannen,  P. 

Where  salvage  services  have  occasioned  the 
-salvors  serious  pecuniary  loss,  and  where  the 
value  of  the  ship  and  cargo  saved  is  ample  not 
only  to  defray  loss  sustained  by  a  salvor,  in  ad- 
dition to  a  proper  sum  for  the  master  and  crew, 
but  also  to  leave  a  substantial  surplus  for  the 
owner  of  the  property  saved,  the  salvor  should 
be  remunerated  where  possible  with  a  sum  suffi- 
cient to  reward  him  for  the  risk  and  labour,  and 
to  cover  damages  and  expenses  incurred'  through 
rendering  the  service,  and  evidence  of  the 
■damages  and  expenses  ought  to  be  received  by 
the  judge,  so  that  they  may  be  ascertained  with 
precision.  TJie  City  of  Chester,  infra — Per  Bag- 
gallay  and  Lindley,  L.JJ. 

Where  the  property  saved  is  ample,  losses 
voluntarily  incurred  by  the  salvor  should  be 
transferred  to  the  owner  of  the  property  saved, 
and  in  addition  the  salvor  should  receive  a  com- 
pensation for  his  exertions  and  for  the  risk  he 
runs  of  not  receiving  any  compensation  in  the 
•event  of  his  services  proving  ineffectual.  Bird 
y.  Qibh,  The  De  Bay,  8  App.  Cas.  559  ;  52  L.  J., 
P.  C.  57  ;  49  L.  T.  414 ;  5  Asp.  M.  C.  156— 
P.  C. 

The  losses  should  be  ascertained  with  precision 
where  practicable,  but  in  that  case  the  salvage 
remuneration  added  thereto  should  be  fixed  on  a 
more  moderate  scale  than  where  the  losses  cannot 
be  fixed  with  precision.    lb. 


Evidence — Loss  of  Earnings  by  and  Damage 
to  Balving  Ship.] — In  an  action  for  salvage, 
-evidence  of  the  loss  of  earnings  by  and  of  the 
costs  of  repairing  damage  done  to  the  salving 
Tessel  in  consequence  of  rendering  salvage  ser- 
vices is  admissible.  These  sums  are  only  to  be 
regarded  as  elements  for  consideration  in  esti- 
mating the  amount  of  the  salvage  reward,  and 
are  not  to  be  considered  as  fixed  amounts  to  be 
awarded  to  the  salvors  in  respect  of  these 
matters.  The  SunnUide,  8  P.  D.  137  ;  52  L.  J., 
P.  76  ;  49  L.  T.  401 ;  31  W.  R.  859  ;  5  Asp.  M.  C. 
140— Hannen,  P. 

In  an  action  of  salvage,  in  which  the  value  of 
the  salving  steamer  was  85,0001.,  and  of  her 
cargo  and  freight  104,047/.,  and  of  the  salved 
steamer  90,0002.,  and  of  her  cargo  and  freight 
£9,5351.,  the  court  awarded  4,5001.  to  the  owners, 
£002.  to  the  master,  and  1,500 J.  to  the  crew. 
During  the  hearing  the  owners  tendered  evi- 
dence of  the  particular  injuries  to  their  steamer 
caused  by  the  performance  of  the  services,  of 
the  costs  of  the  repairs,  and  of  the  pecuniary 


loss  caused  by  the  detention  of  their  steamer 
whilst  such '  repairs  were  being  executed :  the 
court  refused  to  receive  this  evidence,  or  to 
refer  it  to'  the  registrar  and  merchants  to  assess 
the,  amount  of  such  costs  and  losses  : — Held,  on 
appeal,  that  the  judge  of  the  Admiralty  Court  is 
not  bound  ex  debito  justitiae  to  admit  such  evi- 
dence or  to  decree  in  terms  that  a  specific  and 
ascertained  amount  shall  be  paid  to  salvors  in 
respect  of  damages  or  costs  caused  by  rendering 
salvage  services,  for  he  is  not  bound  always  to 
award  a  sum  sufficient  to  indemnify  a  salvor. 
But  the  judge  may,  in  his  discretion,  receive 
such  evidence,  and  may,  if  it  be  proper  under 
the  circumstances,  include  an  amount  in  respect 
of  damages  in  his  award.  Having  regard  to  the 
large  value  in  the  present  case,  the  decree  should 
be  varied  by  awarding  1,000/.  to  the  shipowners 
for  the  actual  services  rendered,  and  by  referring 
the  costs  of  repairs  to,  and  of  the  detention  of 
the  salvor's  steamer  to  be  ascertained  by  the 
registrar  and  merchants,  unless  the  appellants 
were  willing  that  the  decree  of  the  court  below 
should  stand.  The  City  of  Chester,  9  P.  D. 
182 ;  53  L.  J.,  P.  90 ;  51  L.  T.  485  ;  33  W.  R.  104 ; 
5  Asp.  M.  C.  311— C.A. 


b.  Apportionment. 

Derelict] — The  master  of  a  Norwegian  brig 
bound  to  Cardiff,  with  a  crew  of  nine  men,  fell 
in,  in  the  North  Sea  between  Heligoland  and* 
the  Dogger  Bank,  with  a  derelict  vessel  in  a 
very  crippled  condition,  and  put  his  mate  and 
two  of  his  crew  on  board  her.  The  mate  and 
the  two  men  on  board  the  derelict,  shortly  after 
they  had  boarded  her,  fearing  that  she  was 
about  to  founder,  endeavoured  to  leave  her,  but 
their  boat  was  swamped,  and  one  of  the  men 
drifted  astern,  and  was  picked  up  by  a  fish- 
ing smack.  The  mate  and  the  other  hand  suc- 
ceeded in  bringing  the  derelict  safely  into  the 
English  Channel,  and  within  three  miles  of 
Dungeness;  she  was  then  taken  in  tow  by  a 
Bteamship  and  towed  to  the  entrance  of  Dover 
Harbour,  within  which  she  was  subsequently 
placed  in  safety.  Actions  of  salvage  were  insti- 
tuted by  the  owners,  master,  and  crew  of  the 
brig,  and  by  the  owners,  master,  and  crew  of  the 
steamship  against  the  derelict  vessel  and  her 
cargo,  and  the  court  awarded  a  moiety  of  the 
value  of  the  property  proceeded  against,  and 
apportioned  three-fifths  of  the  amount  to  the 
owners,  master,  and  crew  of  the  brig.  The 
Litietta,  8  P.  D.  24  ;  48  L.  T.  799 ;  31  W.  R. 
643  ;  5  Asp.  M.  C.  132— Sir  R.  Phillimore. 


In  general.] — Two  tugs  rendered  salvage  ser- 
vices to  a  ship  driven  from  her  moorings  in  the 
Bristol  Channel,  by  towing  her,  in  a  very  heavy 
gale,  into  the  River  Usk.  The  services  lasted 
for  about  three  hours.  The  value  of  the  salved 
ship  was  4,0<XM.,  of  her  cargo  900/.,  and  of  her 
freight  288Z. ;  460?.  was  awarded.  The  Monarch, 
12  P.  D.  6 ;  56  L.  J.,  P.  114  ;  56  L.  T.  204  ;  35  W, 
R.  292  ;  6  Asp.  M.  C.  90— Hannen,  P. 

A  vessel  having  got  ashore  on  the  Parkin  Rock 
in  the  Red  Sea,  her  master  and  part  of  the  crew 
proceeded  to  Aden  for  assistance.  During  their 
absence  the  crew  left  on  board  were  driven  away 
by  Arab  wreckers,  but  the  vessel  was  never  per- 
manently abandoned.    Three  steamers  rendered 


1711 


SHIPPING— Salvage  and  Towage. 


1712 


valuable  services  to  the  vessel,  and  finally  suc- 
ceeded in  getting  her  off  the  rocks  and  saving 
part  of  her  cargo.  The  value  of  the  vessel  for 
the  purposes  of  the  action  was  taken  to  be 
3,750/.  The  court  awarded  2,000/.  as  salvage. 
The  Erato,  13  P.  D.  163 ;  57  L.  J.,  P.  107 ;  69 
L.  T.  840— Butt,  J.  See  also  The  City  of  Chester, 
supra  ;  The  Agamemnon,  and  The  Anna  Helena, 
ante,  cols.  1703, 1704. 


o.  Beriewing  Award  on  Appeal. 

Bale  of  Court  of  Appeal.] — Where  a  salvage 
award  is  appealed  against  the  Court  of  Appeal 
adheres  to  the  rule  laid  down  in  the  Privy 
Council,  and  will  not  alter  the  sum  unless  it 
has  been  given  on  wrong  principles,  or  with  a 
misapprehension  of  the  facts,  or  it  is  exorbitant 
and  oat  of  reason. — 6,0002.  was  awarded  for  ser- 
vices rendered  to  a  steamer  which  had  run 
aground  on  a  reef  in  the  Red  Sea,  nearly  five 
miles  from  Suez,  and  which,  owing  to  the  heavy 
sea  and  the  nature  of  her  position,  was  in  immi- 
nent peril.  The  services  were  rendered  at  much 
peril  to  the  salving  ship.  The  Court  of  Appeal 
refused  to  alter  this  award.  The  Lancaster,  9 
P.  D.  14  ;  49  L.  T.  705  ;  36  W.  R.  608  ;  5  Asp. 
M.  C.  174— C.  A. 

The  Court  of  Appeal  will,  in  a  salvage  action, 
where  it  appears  that  the  judge  below  has  mis- 
apprehended the  evidence,  and  consequently 
given  a  wrong  award,  increase  or  diminish  the 
award  as  the  justice  of  the  case  may  require. 
The  Star  of  Persia,  57  L.  T.  839  ;  6  Asp.  M.  C. 
220— C.  A. 

The  barque  u  Star  of  Persia,"  having  taken 
up  a  foul  berth  in  bad  weather  in  the  Downs, 
collided  with  another  barque.  The  tug  C.  towed 
her  clear  after  an  hour's  towing,  during  which 
time  her  anchor  and  chain  were  slipped.  After 
she  had  been  got  clear  the  tug  continued  to  tow 
ahead  until  another  anchor  had  been  brought 
off  from  the  shore  by  other  salvors,  and  she  was 
ultimately  saved.  Her  value  and  that  of  her 
Cargo  and  freight  amounted  in  all  to  23.000/. 
The  court,  in  a  salvage  action  against  the  "  Star 
of  Persia,"  having  awarded  15&.,  the  Court  of 
Appeal  held  that  the  evidence  as  to  the  danger 
from  which  the  "  Star  of  Persia "  had  been 
saved,  had  been  misapprehended,  and  increased 
the  award  to  300/.    lb. 

Salvage  remuneration  was  reduced  from 
$12,000  to  $7,500,  their  Lordships  being  of 
opinion  that  the  difference  between  the  sum 
awarded  and  that  which  would  be  liberal  was 
bo  large  as  to  require  correction.  The  Olenduror 
f3  L.  R.,  P.  C.  589)  approved  and  followed.  The 
Thomas  Allen,  12  App.  Cas.  118  ;  56  L.  T.  285 ; 
6  Asp.  M.  C.  99— P.  C. 

Where  a  judge  had  awarded  3,500/.  for  losses 
and  5,000/.  for  remuneration  (the  property  saved 
being  67,000/.) :— Held,  that  a  total  of  6,000/. 
was  sufficient.  Bird  v.  Gibb,  The  De  Bay,  ante, 
col.  1709.  And  see  Tlie  City  of  Chester,  ante, 
col.  1710. 


8.    PRACTICE   IN   SALVAGE  ACTIONS. 
Compromise— Mistake  of  Fact.]— A  compro- 


Reception  of  Evidence  in  Salvagt  Action 
whore  all  Pacts  admitted.]— See  The  Hard- 
trick ,  post,  col.  1725. 

Costs — Tender.] — Where  in  a  salvage  action 
defendants  with  their  defence  tender  and  pay 
into  court  a  sum  of  money  in  satisfaction  of  tbe 
plaintiff's  claim,  and  plead  such  payment  into 
court,  and  the  sum  paid  in  is  held  to  be  suffi- 
cient, the  court  will  order  the  defendants  to  pay 
the  plaintiff's  costs  up  to  the  date  of  the  delivery 
of  the  defence,  unless  the  circumstances  of  the 
case  render  it  just  and  expedient  to  order  other- 
wise. The  William  Symington,  10  P.  D.  1 ;  54 
L.  J.,  P.  4  ;  51  L.  T.  461 ;  33  W.  R.  371 ;  5  Asp. 
M.  C.  298— Butt,  J. 

In  a  salvage  action  it  is  not  necessary  that  a 
tender  should  be  accompanied  with  an  offer  to 
pay  the  plaintiff's  costs  up  to  the  date  of  tender. 
lb. 


Several  Issues.]— The  plaintiffs  harinjr 


towed  a  vessel  into  greater  comparative  safety,, 
the  hawser  then  broke,  and  it  was  dangerous  to 
take  her  again  in  tow.  In  an  action  for  salvage : 
—Held,  that  the  plaintiffs  were  entitled  to  the 
general  costs  of  the  action,  but  not  to  those  of  a 
special  issue  as  to  damage  to  machinery  on  which 
they  had  failed.  The  Camellia,  9  P.  D.  27 ;  & 
L.  J.,  P.  12  ;  50  L.  T.  126 ;  32  W.  R.  495 ;  5  Asp. 
M.  C.  197— Hannen,  P. 

Blight  Character  of  Services.]-'*'  The 


Agamemnon,  ante,  col.  1703. 
Offioers  and  Seamen — Action  on  Agree- 


ment.]— See  The  Nasmyth,  ante,  col.  1707. 


9.    AGREEMENTS  AS   TO   TOWAGE. 

Validity— Authority  of  Master.]— The  steam- 
ship W.  having  found  the  steamship  A.,  on  the 
12th  February,  off  Cape  Finisterre,  in  a  disabled 
condition,  towed  her  off  in  heavy  weather  until 
the  14th  February,  when,  in  consequence  of  the 
condition  of  the  A.,  the  master  of  the  W.  pro- 
posed to  abandon  her.  However,  at  the  request 
of  the  master  of  the  A.,  it  was  agreed  in  writing 
that  the  W.  should  "  stand  by  the  A.  as  long  » 
pOFBible,  and  that  the  W.  and  owners  are  to  be 
paid  for  the  time  and  towing  already  done  and 
to  be  done  from  the  12th  February,  1883."  Tbe 
W.  therefore  again  took  the  A.  in  tow.  but  op 
the  16th  February,  owing  to  stress  of  weather,  it 
was  found  necessary  to  abandon  her,  after  which 
she  was  totally  lost.  In  an  action  for  towage 
against  the  owners  of  the  A.,  the  court  held  that 
the  agreement  entered  into  by  the  master  of  the 
A.  was  a  reasonable  one,  and  one  which  in  his 
position  of  agent,  ex  necessitate  for  his  owners, 
he  had  an  authority  to  enter  into ;  and  awarded 
the  plaintiffs  the  sum  of  400/.  in  respect  of  tbe 
services  rendered  prior  to  and  after  the  agree- 
ment. Wellfield  (Owners)  v.  Adamstm^  The 
Alfred,  50  L.  T.  511 ;  5  Asp.  M.  C.  214— Butt,  J. 

Condition  Exempting  from  Liability— Msgli- 
genoo  of  Tug  Owners  or  Servants.] — The  master 
of  a  steam  tug,  who  had  contracted  to  tow  a 


mise  of  a  salvage  action  agreed  to  by  the  salvors  !  fishing  smack  out  of  the  harbour  of  Great  Tar- 
under  a  mistake  of  fact  is  not  binding  upon  them. !  mouth  to  sea  on  the  terms  that  his  owners  should 
The  Monarch,  supra.  .  not  be  liable  for  damage  arising  from  any  negli- 


1713 


SHIPPING— Bottomry. 


1714 


gencc  or  default  of  themselves  or  their  servants, 
after  the  towage  had  been  in  part  performed, 
took  in  tow,  in  addition  to  the  smack,  six  other 
vessels,  and  in  consequence  was  unable  to  keep 
the  fishing  smack  in  her  course,  so  that  she  went 
aground  and  was  lost.  By  having  more  than  six 
vessels  in  tow  at  once,  the  master  of  the  tug 
disobeyed  a  regulation  made  by  the  harbour- 
master of  Great  Yarmouth  under  statutory 
authority.  The  owners  of  the  fishing  smack 
brought  an  action  against  the  owners  of  the 
steam  tug  to  recover  damages  : — Held,  that  the 
loss  of  the  smack  was  occasioned  by  the  negli- 
gence of  the  master  of  the  tug  ;  that  the  defen- 
dants were  protected  from  liability  by  the  terms 
of  the  towage  contract,  and  that  the  action  must 
be  dismissed.  Tlte  United  Service  or  Cole  v. 
Great  Yarmouth  Steam  Tug  Company,  9  P.  D. 
3  ;  63  L.  J.,  P.  1  ;  49  L.  T.  701  ;  32  W.  R.  565  ; 
6Asp.M.  C.  170— C.  A. 

Implied  Agreement.] — A  tug  while  towing 
the  plaintiff's  vessel  came  into  collision  with  and 
sank  her.  The  tug  was  chartered  by  the  defen- 
dants, a  company,  to  work  with  their  own  tugs, 
and  one  of  the  terms  on  which  the  company 
towed  vessels  was  that  they  would  not  be  answer- 
able for  loss  or  damage  to  any  vessel  in  tow  of 
their  tugs  (which  were  specified  by  name) 
whether  occasioned  by  the  negligence  of  their 
servants  or  otherwise.  The  tug  in  question  was 
not  one  of  those  specified,  but  the  plaintiff  was  a 
director  of  the  defendant  company,  and  was 
aware  of  the  chartering  of  the  tug  : — Held,  that 
the  plaintiff  must  be  taken  to  have  impliedly 
agreed  to  employ  the  tug  on  the  same  terms  as 
the  other  tugs  of  the  company,  and  that  his 
claim  was  therefore  barred  by  the  condition. 
The  Tasmania,  13  P.  D.  110  ;  57  L.  J.,  P.  49  ;  59 
L.  T.  263 ;  6  Asp.  M.  C.  305— Hannen,  P. 

Efficiency  of  Tug  for  Service.] — There 

is  an  implied  obligation  in  a  contract  of  towage, 
that  the  tug  shall  be  efficient  and  properly 
equipped  for  the  service,  and  a  proviso  in  the 
contract  that  the  owners  will  not  be  responsible 
for  the  default  of  the  master,  does  not  release 
tbem  from  such  implied  obligation.  The  Un- 
daunted,  11  P.  D.  46  ;  65  L.  J.,  P.  24  ;  64  L.  T. 
542  ;  34  W.  B.  686  ;  5  Asp.  M.  C.  580— Butt,  J. 


10.    LIABILITY  FOR  NEGLIGENCE  IN 

TOWING. 

Duty  of  Tug  and  Tow.]— It  is  the  duty  of 
those  on  board  the  vessel  in  tow  to  give  general 
directions  to  the  master  of  the  tug  as  to  the 
towage.  But  the  master  of  the  tug  should 
exercise  his  discretion  as  to  the  proper  man- 
oeuvres to  be  employed,  especially  where  he  is 
more  competent  to  form  an  opinion  on  this 
point  than  the  master  of  the  vessel  in  tow.  The 
bea.  12  P.  D.  34  ;  66  L.  J.,  P.  47  ;  55  L.  T.  779  ; 
36  W.  K.  382  ;  6  Asp.  M.  C.  63— D. 

Under  an  ordinary  contract  of  towage,  the 
vessel  in  tow  has  control  over  the.  tug,  and  is 
therefore  liable  for  the  wrongful  acts  of  the 
latter,  unless  they  are  done  so  suddenly  as  to 
prevent  the  vessel  in  tow  from  controlling  them. 
The  Xiobe,  infra. 

It  is  not  the  duty  of  those  in  charge  of  a  tow 
which  is  being  towed  with  a  long  scope  of  hawser 


by  night  at  sea  to  direct  the  movements  of  the 
tug — the  circumstances  being  different  to  towing- 
by  day  in  a  river.  The  Stormcock,  63  L.  T.  63  ; 
5  Asp.  M.  C.  470— Hannen,  P. 

Liability  of  Vessel  in  Tow  for  Collision.]— A 
tug  with  a  vessel  in  tow  came  into  collision  with 
another  vessel,  which  was  seriously  injured  by 
the  tug,  but  not  injured  by  the  vessel  in  tow. 
The  collision  might  have  been  avoided  had  there- 
been  a  good  look-out  on  the  vessel  in  tow,  and 
had  she  warned  the  tug  that  the  latter  was  in 
danger  of  collision  by  continuing  on  her  course  : 
—  Held,  that  the  owners  of  the  vessel  in  tow  were 
liable.  The  Mohe,  13  P.  D.  55  ;  57  L.  J.,  P.  33  ; 
69  L.  T.  257  ;  36  W.  R.  812  ;  6  Asp.  M.  C.  300— 
Hannen,  P. 

Action  in  Bern  against  Tug — Maritime  Lien.] 
— A  steam  tug  under  charter  came  into  collision 
with  the  smack  which  she  was  towing,  through 
the  sole  negligence  of  a  servant  of  the  charterers, 
who  was  in  charge  of  the  tug.  The  towage  was 
on  the  terms  that  the  charterers  were  not  to  be 
answerable  for  damage  occasioned  by  the  negli- 
gence of  their  servants  -.—Held,  that  an  action 
in  rem  would  not  lie  against  the  tug,  for  the 
maritime  lien  arising  from  collision  is  not  abso- 
lute, and  the  owners  not  being  personally  liable 
for  this  collision,  and  the  charterers  being 
exempted  by  the  terms  of  their  contract  with 
the  plaintiff,  the  prima  facie  liability  of  the 
vessel  was  rebutted.  The  Ticonderoga  (Swsu 
215)  explained.     The  Tasmania,  supra. 

Collision  caused  by  Tug — Effect  of  Payment 
by  Tow.|] — The  schooner  J.  M.  S.  having  come 
into  collision  with  a  tug  and  her  tow,  a  damage- 
action  in  rem  was  instituted  by  the  owners  of 
the  schooner  against  the  tug  to  recover  all  the 
damages  occasioned  by  the  collision.      Subse- 
quently to  the  collision  the  plaintiffs  received 
from  the  owners  of  the  tow  a  sum  of  money 
described  in  an  agreement  entered  into  between 
these  parties  "  as  an  advance  on  account  of  the 
damages  to  be  recovered  from  the  owners  of  tho 
tug."     By  the  agreement  it  was  agreed  that  the 
owners  of  the  tow  should  give  the  plaintiffs  all 
information  and  assistance  necessary  to  bring 
the  action  to  a  successful  issue;    that  if  the 
schooner  and  the  tug  should  both  be  held  to 
blame,  the  plaintiffs  should  repay  any  sum  by 
which   the  money  already  paid  exceeded  the 
moiety  of  damages  recoverable  against  the  tug ; 
and  that,  as  a  basis  of  the  arrangement,  it  waa 
understood  that  the  schooner  should  be  found 
blameless  for  the  collision.    The  court,  having 
found  the  tug  alone  to  blame,  held  that  the 
above  payment  was  not  such  a  payment  by  the 
tow  in  satisfaction  of  the  damages  occasioned 
by  the  collision  as  amounted  to  a  settlement  in 
discharge  of  the  action,  and  was  consequently 
no  bar  to  the  action  ;  and  that,  notwithstanding 
the  advance  paid  by  the  tow,  the  plaintiffs  were 
entitled  to  recover  from  the  defendants  all  the 
damages  occasioned  by  the  collision.    The  Storm- 
cock,  supra. 


XIV.    B0TT0XBY. 

Bond  —  Jurisdiction  of  Begistrar  and  Mer- 
chants— Beduction  of  Amount. J — The  validity 
of  a  respondentia  bond  having  been  admitted,  it 


1715 


SHIPPING— Average. 


1716 


was  referred  to  the  registrar  and  merchants  to 
♦decide  what  amount  was  payable  thereunder. 
The  registrar  and  merchants  reduced  the  full 
amount  of  the  bond  by  lessening  the  charges  in 
respect  of  certain  metal  and  felt  supplied  to  the 
ship,  commissions  payable  to  the  agents,  and  the 
premium  on  the  bond,  on  the  ground  that  the 
•amounts  charged  were  unreasonable.  The  plain- 
tiffs objected  to  the  reduction,  and  filed  pleadings 
in  objection  to  the  report: — Held,  that  it  was 
within  the  jurisdiction  of  the  registrar  and  mer- 
chants to  reduce  the  amount  payable  under  the 
bond,  since  the  defendants  were  not  bound  to 
pay  more  than  such  sum  as  was  required  to  pay 
for  things  actually  necessary  for  the  ship,  and  at 
a  reasonable  rate.  The  Pontida,  9  P.  D.  177 ; 
•63  L.  J.,  P.  78 ;  51  L.  T.  849  ;  33  W.  R.  38 ; 
-5  Asp.  M.  C.  330— C.  A. 

Held,  also,  that  as  the  premium  on  the  bond 
•was  excessive  it  had  been  rightly  reduced,  and 
that  the  report  must  be  confirmed.    lb. 


What  is.] — A  foreign  vessel  was  in  an 


English  port,  and  the  owner,  being  temporarily 
in  England  and  in  want  of  funds  for  the  pur- 
•chase  of  necessaries,  made  an  agreement  with 
the  plaintiffs,  by  which,  in  consideration  of  their 
advancing  him  by  cash  or  acceptance  600/.  for 
necessaries  supplied  to  and  for  the  use  of  the 
vessel,  he  thereby  undertook  to  return  them  the 
^amount  so  advanced,  with  interest  and  all 
^charges  on  the  return  of  the  vessel  from  her 
voyage.  And  the  plaintiffs  were  thereby  au- 
thorised "to  cover  the  amount  advanced  the 
-owner  by  insurance  on  ship,  &c,  out  and  home 
at  owner's  cost."  In  an  action  in  rem  for  neces- 
saries in  respect  of  the  amount  so  advanced  : — 
Held  (Brett,  M.R.,  doubting),  that  the  agree- 
ment was  not  equivalent  to  a  bottomry  bond. 
The  Heinrich  Bjorn,  10  P.  D.  44  ;  64  L.  J., 
P.  33  ;  52  L.  T.  560  ;  33  W.  R.  719  ;  5  Asp.  M.C. 
591— C.  A. 


XV.    AVERAGE. 

Discharge  of  Fart  of  Cargo  before  Commenee- 

-mont  of  extraordinary  Measures.  ]— A  steamer, 

-carrying  among  other  cargo  a  large  amount  of 

specie,  ran  aground  and   lay  in  a  dangerous 

position.    The  specie  was  landed  by  the  master 

soon  after  the  vessel  struck.    After  the  landing 

•of  the  specie  the  master  jettisoned  part  of  the 

cargo,  and  had  recourse  to  other  extraordinary 

measures  for    getting   off   the  vessel.      These 

■measures   succeeded,    and    she    completed   her 

voyage  with  the  cargo   remaining  on   board. 

The  specie  was  conveyed  to  a  neighbouring  port, 

whence  it  was  sent  on  in  another  vessel,  but  for 

the  purposes  of  the  case  was  to  be  treated  as 

having  arrived  in  the  steamer : — Held,  that  the 

losses  and  expenses   incurred    in   getting    the 

steamer  off,  and  the  expenses  incurred  in  landing 

and    conveying    the  specie,  were  not   general 

-average  to  which  the  owners  of  the  specie  were 

liable  to  contribute.    Royal  Mail  Steam  Packet 

Company  v.  English  Bank  of  Rio  de  Janeiro, 

19  Q.  B.  D.  362  ;  57  L.  J.,  Q.  B.  31  ;  36  W.  R. 

105— D. 

Expenses  of  Reshipping  Cargo  and  of  Ship 
leaving  Port  of  Refuge.]— A  ship  on  a  voyage 
tiaving  sprung  a  dangerous  leak,  the  captain, 


acting  justifiably  for  the  safety  of  the  whole 
adventure,  put  into  a  port  of  refuge  to  repair. 
In  port  the  cargo  was  reasonably,  and  with  a 
view  to  the  common  safety  of  the  ship,  cargo, 
and  freight,  landed  in  order  to  repair  the  ship. 
The  ship  was  repaired,  the  cargo  reloaded,  and 
the  voyage  completed : — Held,  that  the  cargo- 
owners  were  not  chargeable  with  a  general 
average  contribution  in  respect  of  the  expenses 
of  reshipping  the  cargo.  At t  wood  v.  SelUr 
(6  Q.  B.  D.  286)  discussed.  Svensden  v.  Wallace, 
10  App.  Cas.  404 ;  54  L.  J.,  Q.  B.  497 ;  52 
L.  T.  901 ;  34  W.  R.  369 ;  5  Asp.  M.  C.  453- 
H.  Lt  (!£*)* 

Average  Bond— Proportion  of  Salvage— Duty 
of  Shipowner.] — See  Tlie  Raisby,  ante,  col.  1708. 


Security   for   Payment  —  Unreasenahli 


Terms — Liverpool  Bond.] — Where  a  shipowner 
in  the  exercise  of  his  lien  for  general  avenge 
requires  security  from  the  owner  of  the  cargo 
liable  to  contribution  without  insisting  upon 
immediate  payment  of   the  amount  due,  the 
security  so  required  must  be  reasonable.    The 
defendants,  who  had  a  lien  upon  goods  on  board 
their  ship  for  general  average,  did  not  demand 
payment  of  the  amount  due,  but  required  as 
security   that   the  consignees   should  make  a 
deposit  of  10  per  cent,  on  the  estimated  value  of 
the  goods  in  the  joint  names  of  the  defendants 
and  their  average  adjuster,  or  in  the  names  of 
the  defendants,  or  in  the  name  of  the  average 
adjuster,  or  should  execute  a  bond  providing 
that  the  deposit  should  be  held  as  security  for 
the  general  average  and  particular  charges,  and 
that  the  parties  in  whose  name  it  stood  might 
pay  thereout  such  sums  as  they  should  from 
time  to  time  consider  ought  to  be  paid  to  the 
owners  or  master  on  account  of  money  actually 
disbursed  by  them  or  him,  or  to  enable  them  or 
him  to  pay  off   and   discharge  claims  which 
formed  part  of  the  general  average  and  other 
expenses.    It  also  provided  that  all  questions  of 
general  average  should  be  referred  to  the  average 
adjuster  of  the  shipowner,  subject  to  an  appeal 
from  the  adjustment  to  arbitrators,  whose  decision 
should  be  final: — Held,  that  the  conditions  of 
the  deposit  and  the  form  of  the  bond  were  both 
unreasonable,  and  could  not  in  the  circumstanoai 
be  imposed  upon  the  consignees.     Uuth  v.  Larnr 
port,  or  Gihbs  v.   Lamport,  16  Q.  B.  D.  735; 
55  L.  J.,  Q.  B.  239  ;  54  L.  T.  663 ;  34  W.  R.  S86; 
5  Asp.  M.  C.  593— C.  A. 

Payment  by  Shipowner  —  liability  of  Cargo- 
owner —  Question  for  Jury.] — When  ship  and 
cargo  are  in  peril,  the  fact  that  the  shipowners 
have  by  the  act  of  the  master  become  bound 
to  pay  and  have  paid  a  sum  of  money  for 
preservation  of  ship  and  cargo,  and  that  the 
master  in  so  binding  them  pursued  a  reasonable 
course  under  the  circumstances,  is  not  conclusive 
that  the  whole  Bum  was  chargeable  to  general 
average  so  as  to  bind  the  cargo-owners  to  pay 
their  proportion.  A  new  trial  was  ordered  on 
the  ground  that  the  question  of  the  amount 
chargeable  to  general  average  ought  to  have 
been  submitted  to  the  jury.  Anderson  v.  Ocean 
Steamship  Company,  10  App.  Cas.  107  ;  64  L.  Jn 
Q.  B.  192  ;  52  L.  T.  441 ;  33  W.  R.  433;  5  Asp. 
M.  C.  401— H.  L.  (B.). 

Deck    Cargo    jettisoned  —  "  At   Merchaafa 


1717 


SHIPPING — Docks,  Harbours,  Lighthouses,  dc. 


1718 


Bilk."]— It  was  stipulated  in  a  charterparty 
that  the  u  ship  should  be  provided  with  a  deck 
cargo,  if  required,  at  full  freight,  but  at  mer- 
chant's risk :  "—Held,  that  the  words  "  at  mer- 
chant's risk "  did  not  exclude  the  right  of  the 
charterers  to  general  average  contribution  from 
the  shipowners  in  respect  of  deck  cargo  shipped 
by  the  charterers,  and  necessarily  jettisoned  to 
save  the  ship  and  the  rest  of  the  cargo.  Burton 
t.  English,  12  Q.  B.  D.  218  ;  53  L.  J.,  Q.  B.  133  ; 
49  L.  T.  768  ;  32  W.  B.  655  ;  5  Asp.  M.  C.  187— 
C.A. 


XVI.    DOCKS,  HABBOTJBS,  LIGHTHOUSES 
AKD  WHABVES. 

Docks— Mersey    Dock  —  Tonnage    Bates  — 
"Trading Inwards"  and  "Trading Outwards."] 

—Vessels  took  in  part  of  their  cargo  at  Glasgow, 
sailed  to  Liverpool,  entered  the  appellants'  docks 
and  there  completed  their  loading  but  discharged 
no  cargo :  they  then  proceeded  to  a  port  in 
India,  there  discharged  and  loaded  a  complete 
cargo,  thence  sailed  to  Liverpool,  entered  the 
appellants1  docks  and  there  discharged  the  whole 
or  part  of  their  cargo  and  then  returned  with 
the  remainder  of  their  cargo  or  in  ballast  to 
Glasgow:— Held,  that  under  8. 230  of  the  Merssy 
Docks  Acts  Consolidation  Act,  1858  (21  &  22  Vict, 
dtii.),  such  vessels  using  the  appellants1  docks 
as  aforesaid  on  their  way  to  India  were  liable 
to  dock  tonnage  rates,  not  as  vessels  "  trading 
inwards  "  from  Glasgow,  but  as  vessels  "  trading 
outwards  n  to  India,  and  that  such  vessels  using 
the  dockB  as  aforesaid  on  theinreturn  voyage  from 
India  were  liable  to  rates  as  vessels  "  trading  in- 
wards "  from  India.    Mersey  Docks  v.  Bender- 
m,  13  App.  Cas.  695  ;   58  L.  J.,  Q.  B.  152  ;    59 
L.  T.  697 ;  37  W.  B.  449— H.  L.  (E.). 

Barge  Propelled  by  Oars  only—"  Vessel. "  ] 

—A  "dumb  barge,"  a  river  craft  which  is  simply 
propelled  by  means  of  oars,  and  having  no  rigging 
or  other  equipment,  is  not  a  *'  vessel "  within  the 
meaning  of  as.  100  and  101  of  the  London  and 
St  Katharine  Docks  Act,  1864  (27  k  28  Vict. 
c.  clxxviii),  notwithstanding  the  definition  of 
the  word  "  vessel "  in  the  interpretation  clause 
(a.  3)  of  the  Harbours,  Docks  and  Piers  Clauses 
Act,  1847,  10  Vict.  c.  27,  and  consequently  the 
owner  is  not  liable  to  a  penalty  for  allowing  her 
to  remain  in  the  docks  regulated  by  the  former 
act  without  any  person  on  board.  Hedges  v. 
London  and  St.  Katharine  Docks  Company,  16 
Q.  B.  D.  597  ;  55  L.  J.,  M.  C.  46  ;  54  L.  T.  427  ; 
34  W.  R.  503  ;  50  J.  P.  580  ;  5  Asp.  M.  C.  539 
— D. 

Bating  o£  ]—&-<?  Poob  Law. 

Harbour  Commissioners — Liability  for  Dam- 
age.]— The  B.,  which  was  anchored  in  F.  outer 
harbour,  having  to  be  beached  in  the  inner 
harbour,  8.,  the  harbour-master,  directed  the 
master  of  the  B.  where  to  beach  her.  Before 
Hie  R.  left  the  outer  harbour,  8.  came  on  board, 
although  a  Trinity  House  pilot  was  in  the  vessel, 
and  when  she  had  arrived  near  the  place  where 
she  was  to  be  beached  gave  directions  as  to  the 
lowering  of  her  anchor.  The  B.  overran  her 
anchor  and  grounded  on  it,  sustaining  damage. 
In  an  action  against  the  harbour  commissioners 


and  S.,  the  court  found  as  a  fact  that  there  was 
negligence  on  the  part  of  S.,  and  that  the  place 
where  the  B.  grounded  was  outside  the  jurisdic- 
tion of  the  harbour  commissioners : — Held,  that 
the  duties  of  the  harbour-master  comprised 
directions  as  to  the  mooring  and  beaching  of 
vessels ;  that  by  giving  directions  when  he  went 
on  board,  S.  had  resumed  his  functions  as 
harbour-master,  and  that  he  and  the  commis- 
sioners were  therefore  liable  for  the  damage 
done  to  the  B.  The  Rlwsina,  or  Edwards  v. 
Falmouth  Harbour  Commissioners,  10  P.  D.  131 ; 
54  L.  J.,  P.  72  ;  53  L.  T.  30  ;  33  W.  B.  794  ;  5 
Asp.  M.  C.  460— C.  A. 

By  act  of  Parliament,  26  &  27  Vict.  c.  89,  the 
harbour  of  B.  was  vested  in  the  defendants,  the 
limits  were  defined,  and  the  defendants  had 
jurisdiction  over  the  harbour  of  P.  and  the 
channel  of  P.  beyond  those  limits,  for  the  pur- 
pose of,  inter  alia,  buoying  "  the  said  harbour 
and  channel,"  but  they  were  not  to  levy  dues  or 
rates  beyond  the  harbour  of  B.  By  42  &  43 
Vict.  c.  146,  a  moiety  of  the  residue  of  light 
duties  to  which  ships  entering  or  leaving  the 
harbour  of  P.  contributed,  were  to  be  paid  to  the 
defendants,  and  to  be  applied  by  them  in,  inter 
alia,  buoying  and  lighting  the  harbour  and 
channel  of  P.  A  vessel  was  wrecked  in  the 
channel  of  P.,  which  under  the  Wrecks  Removal 
Act,  1877  (40  &  41  Vict.  c.  16),  s.  4,  the  defen- 
dants had  power  to,  and  did  partially  remove. 
The  wreck  not  removed  was  not  buoyed,  and  the 
plaintiff's  vessel  was  in  consequence  wrecked : — 
Held,  that  the  statutes  imposed  upon  the  defen- 
dants an  obligation  to  remove  the  wreck  from 
the  channel,  or  to  mark  its  position  by  buoys, 
and  that,  not  having  done  so,  they  were  liable  in 
damages  to  the  plaintiff.  Dormant  v.  Furnes& 
Railway,  11  Q.  B.  D.  496  ;  52  L.  J.,  Q.  B.  331 ; 
49  L.  T.  134  ;  47  J.  P.  711 ;  5  Asp.  M.  C.  127— 
Kay,  J.   See  also  Reg,  v.  Williams,  ante,  col.  337. 

Lighthouses — Trinity  House — Beacon— Lia- 
bility for  Negligence.] — The  Trinity  House  was 
incorporated  by  charter  in  the  reign  of  Henry 
VIII.,  for  the  purpose,  inter  alia,  of  ordering 
and  erecting  lighthouses,  beacons,  and  buoys. 
Its  powers  were  extended  by  several  charters 
and  statutes,  until  it  became  the  general  light- 
house authority  for  England  and  Wales.  By 
the  Merchant  Shipping  Act,  1854,  s.  389,  the 
superintendence  and  management  of  all  light- 
houses, buoys,  and  beacons  in  England  and 
Wales,  and  certain  other  places,  were,  with 
certain  exceptions,  vested  in  the  Trinity  House  : 
— Held,  that  the  Trinity  House  was  not  a  de- 
partment of  State,  so  as  to  be  exempt  from 
liability  for  negligence  of  its  servants.  Gilbert 
v.  Trinity  House  Corporation,  17  Q.  B.  D.  795  ; 
56  L.  J.,  Q.  B.  85  ;  35  W.  B.  30— D. 

A  beacon  erected  by  and  vested  in  the  Trinity 
House,  having  been  nearly  destroyed,  a  stranger 
applied  to  the  Trinity  House,  and  obtained  leave 
to  remove  the  remains  of  it.  He  removed  part 
of  the  remains,  but  left  an  iron  stump  standing 
up  above  a  rock  under  the  water.  A  vessel 
struck  against  the  iron  stump  and  was  lost : — 
Held,  that  the  Trinity  House  was  liable.    lb. 


Bateability  to   Poor-rate.]— See   Poob 


Law. 


Wharves   and   Quays— Exercise   of  Private 
Bights  over— Obstruction  of  Public  Traffic.  ]-~ 


i 


1719 


SHIPPING— Jurisdiction. 


1720 


By  a  special  act  of  1840  trustees  were  appointed 
for  the  management  of  a  certain  harbour.  S.  53 
of  the  act  authorised  the  lord  of  the  manor, 
or  the  owner  of  land  situate  within  or  adjoining 
to  the  harbour,  amongst  other  things,  to  lay 
down  railways  over  the  quays,  roads,  and  works, 
but  so  as  all  such  railways  should  be  constructed 
of  such  height  and  in  such  form  as  should  not 
in  any  manner  impede  or  interrupt  the  general 
public  traffic  of  the  port,  or  the  free  passage  to 
and  from  the  same  ;  and  railways  so  to  be 
erected  or  made  were  (subject  to  the  aforesaid 
restriction)  to  be  wholly  excluded  from  the 
jurisdiction  of  the  trustees,  and  be  the  private 
property  and  for  the  sole  and  exclusive  use 
of  the  person  or  persons  upon  whose  land  the 
same  should  stand  or  be  placed,  and  his  or 
their  assigns.  The  lord  of  the  manor  was  the 
owner  of  lands  adjoining  the  south  side  quay  of 
the  harbour.  Tenants  of  the  lord  of  the  manor 
having  proceeded  to  lay  down  two  lines  of 
railway  from  their  works  along  the  south  side 
quay,  an  action  was  brought  by  the  trustees  of 
the  harbour  to  restrain  them  from  constructing 
such  railway,  on  the  ground  that  they  would 
impede  the  general  public  traffic  of  the  port : 
— Held,  that  the  main  object  of  the  act  was  to 
benefit  the  persons  frequenting  the  harbour,  and 
that  any  railway  laid  on  the  south  side  of  the 
quay  must  be  constructed  in  such  a  way  as  not 
by  its  construction,  or  its  natural  and  necessary 
user,  in  any  manner  to  impede  the  fair  public 
traffic  of  the  port : — Held  also,  that,  as  the 
defendants1  railway  did  so  impede  the  traffic,  the 
plaintiffs  were  entitled  to  an  injunction,  and  to  an 
order  for  removal  of  such  railway.  Lowther  v. 
Curtoen,  58  L.  T.  168— Kay,  J. 


Jetty  in  Tidal  River — Implied  Repre- 


sentation by  Wharfinger.]  —  The  defendants, 
who  were  wharfingers,  agreed  with  the  plaintiff 
for  a  consideration  to  allow  his  vessel  to  dis- 
charge and  load  her  cargo  at  their  wharf,  which 
abutted  upon  the  river  Thames.  It  was  neces- 
sary in  order  that  the  vessel  might  be  unloaded 
that  she  should  be  moored  alongside  a  jetty  of 
the  defendants  which  ran  into  the  river,  and 
that  she  should  take  the  ground  with  her  cargo 
at  the  ebb  of  the  tide.  The  vessel  at  the  ebb  of 
the  tide  sustained  injury  from  the  uneven  nature 
of  the  ground.  The  bed  of  the  river  at  the  point 
where  she  took  ground  was  vested  in  the  Con- 
servators, and  the  defendants  had  no  control 
over  it,  but  it  was  admitted  that  they  had  taken 
no  steps  to  ascertain  whether  it  was  suitable 
for  the  vessel  to  ground  upon : — Held,  that 
there  was  an  implied  undertaking  by  the  defen- 
dants that  they  had  taken  reasonable  care  to 
ascertain  that  the  bottom  of  the  river  at  the 
jetty  was  not  in  a  condition  to  cause  danger  to 
the  vessel,  and  that  they  were  liable  for  the 
damage  sustained  by  her.  The  Moorcock,  14 
P.  D.  64  ;  60  L.  T.  654 ;  37  W.  R.  439— C.  A. 
Affirming  58  L.  J.,  P.  15— Butt,  J. 


XVII.  JURISDICTION. 
1.  ADMIRALTY  DIVISION. 

Collision— Damage  to  Cargo.] — Under  24  Vict, 
c.  10,  s.  7,  the  Admiralty  Division  has  no  juris- 
diction to  entertain  an  action  in  rem  by  the 


owners  of  cargo  against  the  vessel  on  which  it 
was  laden  for  damage  done  to  such  cargo.  The 
Victoria,  12  P.  D.  105  ;  56  L.  J.,  P.  75 ;  56  L  T. 
499  ;  35  W.  R.  291  ;  6  Asp.  M.  C.  120-Butt,  J. 

Action  in  rem — Action  under  Lord  Campfeeiri 
Act.  1— The  Admiralty  Court  Act,  1861  (24  Vict 
c.  1(f),  which  by  s.  7  gave  the  Court  of  Admiralty 
"  jurisdiction  over  any  claim  for  damage  done  by 
any  ship,"  did  not  give  jurisdiction  over  claims 
for  damages  for  loss  of  life  under  Lord  Camp- 
bell's Act  (9  &  10  Vict.  c.  93)  ;  and  the  Admiralty 
Division  cannot  entertain  an  action  in  rem  for 
damages  for  Iqss  of  life  under  Lord  Campbell's 
Act.  The  Franeonia  (2  P.  D.  163)  overruled. 
Seward  v.  The  Vera  Cruz,  10  App.  Cas.  59 ;  54 
L.  J.,  P.  9  ;  52  L.  T.  474  ;  33  W.  R.  477  ;  49  J.P. 
324  ;  5  Asp.  M.  C.  386— H.  L.  (E.). 


Co-ownership — Sale  of  Ship— Registered 


in  Guernsey.] — The  Admiralty  Division  has  no 
jurisdiction  over  an  action  in  rem,  instituted 
under  s.  8  of  the  Admiralty  Court,  1861,  claiming 
an  account  of  the  earnings  and  sale  of  a  ship 
when  the  ship  is  registered  at  the  port  of 
Guernsey,  and  not  at  any  port  in  England  or 
Wales.  "The  llobintons  and  The  Satellite,  51 
L.  T.  905 ;  5  Asp.  M.  C.  338— Butt,  J. 


2.  COUNTY  COURTS. 

"  Damage  by  Collision."] — Damage  occasioned 
to  an  object  on  the  bank  of  a  river  by  contact 
with  the  sailing  gear  of  a  vessel  afloat  in  the  river 
is  not "  damage  by  collision  "  within  a.  3,  sub-i  3, 
of  the  County  Courts  Admiralty  Jurisdiction 
Act,  1868  (31  &  32  Vict.  c.  71),  and  a  coontj 
court  has  not  Admiralty  jurisdiction  in  respect  of 
such  damage.  Bobson  v.  Owner  of  the"  ijtff," 
21  Q.  B.  D.  13  ;  57  L.  J.,  Q.  B.  546  ;  59  L.T.657; 

36  W.  R.  910— D. 

Actions  under  £50.] — The  County  Courts 

Admiralty  Jurisdiction  Act,  1868  (31  &  32  Vict. 
c.  71),  does  not  deprive  county  courts  not  having 
Admiralty  jurisdiction  of  their  original  jnri* 
diction  to  try  actions  to  recover  damages  for 
injuries  caused  by  collision  between  vessels 
where  the  amount  claimed  does  not  exceed  501. 
Scovett  v.  Sevan,  19  Q.  B.  D.  428  ;  66  L.  J..Q.B. 
604  ;  36  W.  R.  301— D. 

"  Use  or  hire  of  any  Ship  " — Demurrage,]- 
A  loading  agreement  between  a  colliery  com- 
pany and  the  charterers  of  a  ship,  by  which  the 
colliery  company  undertake  to  load  the  ship  in  a 
certain  time,  and  pay  demurrage  if  that  time  » 
exceeded,  is  not  an  "  agreement  made  in  relation 
to  the  use  or  hire  "  of  a  ship  within  s.  2  of  the 
County  Courts  Admiralty  Jurisdiction  Amend- 
ment Act,  1869,  and  hence  the  county  court  has 
no  jurisdiction  on  the  Admiralty  side  to  enter- 
tain a  claim  for  demurrage  against  the  collier/ 
company.    The  Zeue,  13  P.  D.  188  ;  69  L.  T.  344 ; 

37  W.  R.  127 ;  6  Asp.  M.  C.  312— D. 

Freight— Actions  under  WO.]— The  statutes 
31  &  3z  Vict.  c.  71,  and  32  &  33  Vict,  c  51,  do 
not  deprive  county  courts  not  having  Admiralty 
jurisdiction,  of  their  jurisdiction  to  try  actions 
to  recover  freight  under  charterparties,  where 
the  amount  claimed  is  less  than  50/.    Bee.  v. 


1721 


SHIPPING— Practice. 


1722 


»>»thend  County  Court  Julo*\  13  Q.  B.  D.  142  ; 
33  L.  J.,  Q.  B.  423  ;  32  W.  R  754— U 

Breath  of  Contract  of  Towage.] — A  county 
court  has  under  32  &  83  Vict.  c.  51,  s.  2,  sub-s.  1, 
jarisdictioQ  to  entertain  a  claim  for  damage  for 
breach  of  a  contract  of  towasp.  The  Isra.  1 2  P.  D. 
34;  56  L.  J.,  P.  47 ;  55  L.  T.  779  ;  35  W.  R.  382 ; 
6  Asp.  M.  C.  63— D. 

Carriage  of  Passengers'  Luggage.]  —  Pas- 
sengers' luggage  carried  on  board  a  ship  is  not 
"floods"  within  the  meaning  of  the  County 
Coarts  Admiralty  Jurisdiction  Amendment  Act, 
1869,  and  consequently  the  act  docs  not  confer 
jurisdiction  to  try  a  claim  arising  out  of  the  loss 
of  such  luggage,  as  a  court  having  Admiralty 
jurisdiction.  Reg.  v.  City  of  London  Court 
Judge.  12  Q.  B.  D.  115  ;  53  L.  J.,  Q.  B.  28  ;  51 
LT.  197 ;  32  W.  R.  2:>1  ;  5  Asp.  M.  P.  283— D. 


3.  VICE-ADMIRALTY  COURTS. 

Extent  ot] — Vice- Admiralty  Courts  have  not 
(apart  from  statute)  more  than  the  ordinary 
Admiralty  jurisdiction,  i.  e.,  as  it  existed  before 
3&4Vict.c.65  enlarged  it.  The  Vice- Admiralty 
Act,  1863  (26  &  27  Vict.  c.  24),  s.  10,  sub-s.  10, 
does  not  create  a  maritime  lien  with  respect  to 
necessaries  supplied  within  the  possession.  Law* 
v.  Smith,  or  The  Rio  Tint*.  9  App.  Cas.  350  ;  50 
L  T.  461  ;  5  Asp.  M.  C.  224— P.  C. 

Suit  by  8ix  Seamen  for  Wages  and  Compensa- 
tion.]—By  an  Order  in  Council,  s.  15,  passed  in 
pursuance  of  2  Will.  4,  c.  51,  the  Vice- Admiralty 
Cunrt  has  jurisdiction  to  entertain  a  suit  brought 
by  any  number  of  seamen,  not  exceeding  six,  to 
recover  their  wages.  The  Merchant  Shipping 
Act,  1854,  s.  189,  does  not  take  away  such  right 
<rf  suit  so  long  as  the  total  aggregate  amount 
claimed  by  such  seamen  exceeds  50/.  Where,  in 
a  suit  brought  by  six  seamen  in  the  Vice- Ad- 
miralty Court,  the  judge  found  that  a  total 
amount  of  203/.  19*.  Sd.  was  due  to  them,  partly 
for  wages,  and  partly  for  wrongful  dismissal, 
bat  that  the  amount  due  to  each  was  less  than 
50J. :— Held,  that,  under  the  above  rule  and 
section,  the  judge  was  wrong  in  dismissing  the 
suit  for  want  of  jurisdiction,  and  that  a  decree 
for  203/.  19*.  %d.  should  be  made.  Phillip*  v. 
Highland  Railway,  Tlie  Ferret,  8  App.  Cas.  329  ; 
52  L.  J.,  P.  C.  61  ;  48  L.  T.  915  ;  31  W.  R.  869 ; 
*  Asp.  M.  C.  94— P.  C. 


XVIII.    PRACTICE. 
1.  WRIT  AND  PLEADINGS. 

Writ —  Address  —  Foreign  Corporation.]  —  A 
▼rit  in  personam  for  service  within  the  juris- 
diction is  invalidated  by  the  omission  of  the 
address  of  the  defendant.  Where,  therefore, 
soch  a  writ  was  addressed  to  a  foreign  corpora- 
tion without  giving  its  address: — Yield,  that, 
having  regard  to  Ord.  II.  r.  3,  the  omission  was 
material,  and  that  the  writ  was  invalid,  and 
most  be  set  aside.  The  W.  A.  Sholten,  13 
K  D.  8  ;  67  L.  J.,  P.  4  ;  58  L.  T.  91  ;  36  W.  R. 
359 ;  6  Asp.  M.  C.  244—  Butt  J. 


Amendment  of— Action  in  rem — Adding 

Parties.] — Plaintiffs  commenced  an  action  in 
rem  under  Lord  Campbell's  Act,  on  the  4th 
January,  1884,  in  respect  of  loss  of  life  by  col- 
lision at  sea  on  the  10th  January,  1883.  After 
the  10th  January,  1884,  it  having  been  decided 
in  the  interim  that  the  Admiralty  Court  had  no 
jurisdiction  in  such  actions,  the  plaintiffs  applied 
to  add  as  defendnnts  the  owners  of  the  wrong- 
doing ship  personally: — Held,  that  the  court 
had  no  power  to  add  parties  as  defendants  in 
personam  in  an  action  in  rem,  and  that  even  if 
such  power  existed,  the  proceedings  against  the 
owners  would  be  deemed  to  commence  from  the 
date  of  service  on  them  of  the  writ  of  summons, 
and  would  be  too  late.  The  Bowesfield,  51  L.  T. 
128  ;  5  Asp.  M.  C.  265— Butt,  J. 

Pleading — Statement  of  Claim — 8alvage.]— A 
statement  of  claim  in  a  salvage  action  was  drawn 
in  the  Form  No.  6  of  Appendix  C.  to  the  Rules 
of  the  Supreme  Court,  1883 ;  on  motion  by  the 
defendants  under  Ord.  XIX.  r.  7  for  a  further 
and  better  statement  of  claim  or  particulars  : — 
Held,  that  the  plaintiffs  must  deliver  a  fuller 
statement  of  claim,  and  that  in  salvage  actions 
a  fuller  form  than  that  given  in  Appendix  C, 
No.  6,  should  generally  be  followed.  The  I*i«, 
8  P.  D.  227  ;  53  L.  J.,  P.  14  ;  49  L.  T.  444  ;  32 
W.  R.  171  ;  5  Asp.  M.  C.  155— Hannen,  P. 


Tender— Payment  into  Court.] — A  plea 


of  tender  without  payment  into  court  is  bad. 
Tlie  Kastmyth,  10  P.  D.  41  ;  54  L.  J.,  P.  63  ;  52 
L.  T.  392  ;  33  W.  R.  736 ;  5  Asp.  M.  C.  364— 
Butt,  J. 


2.  DEFAULT  PROCEEDINGS. 

Sendee  of  Writ  in  Bern.]— In  an  action  in 
rem  the  writ  of  summons  was  served  in  the 
manner  provided  by  Ord.  IX.  r.  12,  no  appear- 
ance was  entered,  and  the  action  came  on  for 
judgment  by  default  under  Ord.  XIII.  rr.  12, 13. 
The  affidavit  of  service  of  the  writ  was  made  by 
the  solicitor's  clerk  who  had  served  such  writ : — 
Held,  that  service  of  a  writ  in  rem  by  a  solicitor 
or  his  clerk,  and  not  by  the  marshal  or  his  sub- 
stitute, was  a  valid  service,  and  that  the  affidavit 
was  sufficient.  The  Soil*,'  10  P.  D.  62  ;  54  L.  J., 
P.  52 ;  52  L.  T.  440  ;  33  W.  R.  659  ;  5  Asp.  M.  C. 
368— Butt,  J. 

The  affidavit  of  service  required  to  be  filed  in 
the  registry  before  proceedings  can  be  taken  to 
obtain  judgment  by  default  in  an  action  in  rem 
must  have  the  original  writ  in  rem  annexed  to 
it.  The  Eppos,  49  L.  T.  604  ;  32  W.  R.  154  ; 
5  Asp.  M.  C.  180— Hannen,  P. 

'  Motion  for  Judgment.]— Where  the  plaintiff 
in  a  default  action  in  rem  for  necessaries  had 
complied  with  all  the  formalities  entitling 
him  to  judgment  save  service  of  a  statement  of 
claim,  but  it  appeared  that  the  writ,  though  not 
specially  indorsed,  contained  particulars  of  the 
claim,  the  court  gave  judgment  for  the  plaintiff. 
The  Hulda,  58  L.  T.  29  ;  6  Asp.  M.  C.  244— 
Butt,  J. 

In  order  to  obtain  judgment  by  default  of 
appearance  in  an  action  in  rem  under  Ord. 
XIII.  r.  12,  the  ten  days  stated  in  Ord.  XXI. 
r.  6}  most  elapse,  and  a  notice  of  trial  under 


1728 


SHIPPING— Practice. 


1724 


Ord.  XXXVL  r.  11,  must  be  filed  in  the  registry. 
The  Avenir,  9  P.  D.  84 ;  53  L.  J.,  P.  63  ;  50 
L.  T.  512  ;  32  W.  R.  755 ;  5  Asp.  M.  C.  218— 
Butt,  J. 

As  under  Ord.  XIII.  r.  12,  default  actions  in 
rem  are  to  proceed  as  if  the  defendant  had 
appeared,  Ord.  XXVII.  r.  11,  as  to  setting 
down  an  action  on  motion  for  judgment  where 
the  defendant  makes  default  in  pleading,  applies 
to  such  actions,  and  judgment  therein  is  to  be 
obtained  under  the  provisions  of  that  rule.  TJie 
Spero  Expecto,  49  L.  T.  749 ;  32  W.  R.  524  ; 
5  Asp.  M.  C.  197— Butt,  J. 

Where  in  an  action  in  rem  for  collision  the 
defendant  makes  default,  the  plaintiff  should, 
on  moving  for  judgment,  support  his  claim  by 
affidavit.    lb. 


where  there  are  other  questions  in  the  action 
capable  of  being  tried  by  a  jury.  Ocean 
Steamship  Company  v.  Anderson,  33* W.  R.  536 
— C.  A. 


3.    STAY    AND    TRANSFER    OF 
PROCEEDINGS. 

Staying  Proceedings — lis  Alibi  Pendens.] — A 

collision  occurred  on  the  high  seas  between  the 
C.  and  the  J.,  two  foreign  vessels.  The  C.  was 
arrested  in  Holland  in  an  action  brought  by  the 
owners  of  the  J.  and  her  cargo,  but  was  released 
with  the  consent  of  the  agent  of  the  J.  on  the 
guarantee  of  a  firm  of  underwriters  interested 
in  the  C.  to  answer  judgment  in  the  action. 
Cross  proceedings  were  instituted  in  the  Dutch 
court  by  the  owners  of  the  C.  and  the  J.  An 
action  was  subsequently  commenced  in  this 
country  against  the  owners  of  the  C.  by  the 
owners  of  the  J.  and  her  cargo,  and  the  C.  was 
arrested  in  respect  of  the  same  collision.  The 
plaintiffs  expressed  their  willingness  to  abandon 
the  action  in  Holland :— Held(dissentiente  Brett, 
M.R.),  that  the  proceedings  in  this  country 
must  be  stayed  and  the  ship  released.  The  Chris- 
t  iamb  org,  10  P.  D.  144 ;  54  L.  J.,  P.  84 ;  53 
L.  T.  612  ;  5  Asp.  M.  C.  491^-C.  A. 

In  an  action  of  damage  in  personam  by  the 
owners  of  the  ship  G.,  against  the  owners  of  the 
ship  P.,  it  appeared  that  a  cause  of  damage  in 
rem  relating  to  the  same  collision  had,  prior  to 
the  proceedings  in  this  court,  been  instituted  by 
the  owners  of  the  P.  against  the  G.  in  a  vice- 
admiralty  court  abroad,  and  was  then  pending. 
The  court,  on  the  application  of  the  owners  of 
the  ship  P.,  stayed  the  proceedings  in  this  court 
until  after  the  hearing  of  the  cause  in  the  vice- 
admiralty  court  abroad.  The  Peshawvr,  8  P.  D. 
32 ;  52  L.  J.,  P.  30 ;  48  L.  T.  796  ;  31  W.  R.  660 ; 

5  Asp.  M.  C.  89— Sir  R.  Phillimore. 

Transfer  of  Actions.]— When  an  action  is 
transferred  from  an  inferior  court  and  consoli- 
dated with  a  cross  action  begun  in  the  High 
Court,  the  plaintiffs  in  the  action  in  the  inferior 
court  will  be  placed  in  the  position  of  plaintiffs 
in  the  consolidated  actions,  if  they  began  the 
action  in  the  inferior  court  before  the  cross  action 
in  the  High  Court.  77a?  Never  Despair }  9  P.  D. 
34  ;  53  L.  J.,  P.  80  ;  50  L.  T.  369  ;  32  W.  R.  599  ; 

6  Asp.  M.  C.  211— Hannen,  P.  S.  P.  TJie 
morn,  9  P.  D.  36  n. ;  5  Asp.  M.  C.  212  n.  ;  and 
The  Cosmopolitan,  9  P.  D.  85  n. ;  5  Asp.  M.  C. 
212  n.— Sir  R.  Phillimore. 

Although  an  action  in  which  the  sole  question 
is  a  question  of  salvage  may,  under  Ord.  XL IX. 
r.  3,  be  properly  transferred  to  the  Admiralty  I 
Division,  such  a  transfer  should  not  be  ordered  | 


4.  INSPECTION  AND  DISCOVERY. 

Inspection  by  Trinity  Hasten  before  Trial]- 
Before  the  hearing  of  an  action  an  application 
was  made  under  24  Vict.  c.  10,  s.  18,  by  the 
plaintiffs,  that  two  Trinity  masters  should 
inspect  the  lights  of  the  defendants'  ship  :— 
Held,  that  the  application  was  premature,  and 
ought  to  be  refused.  The  Victor  Cotaemek, 
10  P.  D.  40  ;  54  L.  J.,  P.  48  ;  52  L.  T.  632;  5 
Asp.  M.  C.  417— Butt,  J. 

Discovery— Depositions  made  before  Etceiw 
of  Wreck.  ] — Depositions  of  the  master  and  crew 
of  a  British  ship,  the  R.,  in  regard  to  a  collision, 
had  been  taken  by  the  Receiver  of  Wreck,  and 
the  Board  of  Trade  refused  to  give  copies  of  such 
•  depositions  to  the  owners  of  the  P.  in  an  action 
arising  out  of  the  collision  between  these  vessel*. 
Copies  had  however  been  obtained  for  the  purpose 
of  the  action  by  the  solicitors  to  the  owners  of  the 
R.,  whose  master  and  crew  had  made  the  deposi- 
tions. On  motion  by  the  owners  of  the  P.  for 
leave  to  inspect  and  take  copies  of  the  deposi- 
tions in  the  possession  of  the  solicitors  of  the 
owners  of  the  R. : — Held,  that  these  copies  weie 
privileged.  The  Palermo,  9  P.  D.  6  ;  53  L  J, 
P.  6  ;  49  L.  T.  551 ;  32  W.  R.  403 ;  5  Asp.  M.  C. 
165— C.  A. 


5.  TRIAL. 

By  Jury— Discretion.]— The  plaintiff  in  an 
action  in  rem  for  disbursements  in  the  Probate, 
Divorce,  and  Admiralty  Division,  applied  for  an 
order  that  the  action  should  be  tried  by  a  judge 
with  a  jury:— Held,  that  Ord,  XXXVI.  r.  6, 
gives  no  absolute  right  to  a  jury  in  actions  which 
before  the  passing  of  the  Judicature  Act,  1873, 
would  have  been  tried  without  a  jury  ;  that  the 
case  fell  within  Ord.  XXXVI.  rr.  4  and  7a,  and 
that  the  judge  had  a  discretionary  power  only, 
to  allow  trial  by  a  jury.  The  TsmpU  Bar,  11 
P.  D.  6  ;  55  L.  J.,  P.  1 ;  53  L.  T.  904 ;  34  W.B. 
68  ;  5  Asp.  M.  C.  509— C.  A. 

By  Judge  with  Assessors.] — If  the  judge  who 
tries  the  case  differs  from  his  assessors,  be  is 
bound  to  decide  in  accordance  with  his  own 
opinion.  The  Beryl,  9  P.  D.  137 ;  53  L.  Jt 
P.  75 ;  51  L.  T.  554 ;  33  W.  R.  191 ;  5  Asp. 
M.  C.  321— C.  A. 


6.  EVIDENCE. 

Trial  with  Assessors.]— Where  the  court  is 
assisted  by  Trinity  masters  Bitting  as  asseson, 
evidence  of  expert  witnesses  on  questions  of 
nautical  skill  and  seamanship  will  not  be  allowed. 
The  Kirby  Hall,  8  P.  D.  76  ;  48  L.  T.  797;  * 
Asp.  M.  C.  90— Sir  R.  Phillimore. 

Admissions  in  Pleadings.]— When  the  defen- 
dant admits  all  the  facts  pleaded  in  the  state- 
ment of  claim  in  a  salvage  action,  the  plaintiff 
will  not  be  allowed  to  call  evidence  exoept  by 
permission  of  the  court,  and  on  special  grounds. 


1725 


SHIPPING— Practice* 


172& 


The  Eardwkk,  9  P.  D.  32  ;  68  L.  J.,  P.  23  ;  50 
L.T.  128:  32  W.  R.  698  ;  6  Asp.  M.  C.   19*— 

Hannen,  P. 

Litter  of  Captain  to  Owners.] — A  letter 
written  by  the  captain  of  a  ship  to  Ms  owners  is 
admissible  in  evidence  against  the  owners ; 
though  all  the  statements  contained  in  the  letter 
may  not  be  evidence.  The  Solway,  10  P.  D. 
137;  54  L.  J.,  P.  83 ;  53  L.  T.  680 ;  34  W.  R. 
232 ;  5  Asp.  M.  C.  482— Hannen,  P. 

Aigiaeer's  Log.] — In  an  action  of  damage  the 
engineer's  log  is  admissible  as  evidence  against 
the  shipowner  by  whom  the  engineer  is  employed. 
The  Earl  of  Dumfries,  10  P.  D.  31  ;  54  L.  J.,  P. 
7;  51  L.  T.  906 ;  33  W.  R.  568  ;  5  Asp.  M.  C. 
342— Butt,  J. 

Beference— Cross-examination  of  Deponent.] 
-Under  Ord.  XXXVI 1.  r.  2— which  enables  the 
evidence  in  references  in  Admiralty  actions  to 
be  given  by  affidavit — it  is  in  the  discretion  of 
the  registrar  to  refuse,  if  he  thinks  fit,  to  give 
weight  to  such  evidence  unless  and  until  the 
deponent  has  been  cross-examined  on  his  affi- 
davit, and  where  the  deponent  is  a  party  to  the 
action,  he  may,  though  resident  abroad,  be 
required  to  attend  in  this  country  for  such  cross- 
examination.  The  Parisian,  13  P.  D.  16  ;  57 
L.  J.,  P.  13  ;  58  L.  T.  92  j  36  W.  R.  704  ;  6  Asp. 
M.  C.  249-Butt,  J. 


7.  DAMAGES. 

Ammmmit  of  — Lord  Campbells  Act.] — 
An  action  for  damages  under  Lord  Campbell's 
Act  was  commenced  in  the  Admiralty  Division, 
tod  no  application  was  made  to  transfer  the 
cause  to  any  other  division  : — Held,  that  upon 
default  in  pleading  by  the  defendants  the  plain- 
tiffs were  entitled,  under  Ord  XXVII.  r.  4,  to 
enter  interlocutory  judgment '  and  to  have  the 
damages  assessed  and  apportioned  by  a  jury. 
Tie  Orwell,  13  P.  D.  80  ;  57  L.  J.,  P.  61  ;  59 
LT.  312;  36  W.  R.  703  j  6  Asp.  M.  CL309— 
Hannen,  P. 

Interest  on.] — In  an  action  in  the  Admiralty 
Division,  which  could  not,  prior  to  the  Judicature 
Acts,  have  been  tried  in  the  Admiralty  Court, 
the  defendant  made  no  objection  to  the  jurisdic- 
tion, and  interest  was,  according  to  the  practice 
in  iht  Admiralty  registry,  allowed  on  the  assessed 
damages  from  the  time  when  the  plaintiffs'  claim 
anise.  In  another  action  .transferred  by  consent, 
After  verdict  for  the  plaintiff,  to  the  Admiralty 
Division  for  the  assessment  of  the  damages  by 
the  registrar  and  merchants,  the  same  practice 
*is  followed  in  regard  to  the  interest  >— Held, 
that  interest  on  the  damages  was  properly 
awarded  by  the  registrar  on  the  ground  that  the 
parties,  in  both,  cases,  having  proceeded  on  the 
understanding  that  the  Admiralty  practice  should 
*pply,  had  impliedly  consented  to  abide  by  such 
practice.  The  Gertrude,  The  Baron  Aberdare, 
13  P.  D.  105  ;  59  L.  TV  251 ;  36  W.  R.  616  ;  6 
Asp.  H.  C.  315—  C.  A.  Affirming  56  L.  «L,  P. 
106—Hannen  P. 

la  Collision  Actions.]—^  ante,  cols.  1698 
etseq. 


8.    SALE   OP    SHIP. 

When  Ordered.]— An  order  will  not  be  made 
for  the  sale  of  a  vessel  even  upon  the  application 
of  the  owner,  where  such  vessel  is  not  proceeded 
against  in  the  court.  The  Wexford,  13  P.  D. 
10 ;  57  L.  J.,  P.  6  ;  58  L.  T.  28  ;  36  W.  R.  560  ; 
6  Asp.  M.  C.  244— Butt,  J. 


At  Instance  of 

Marion,  ante,  col.  1648. 


Co-owners.]— See  The 


Sale  of  Ship  and  Cargo — Freight.] — Where  in 
an  action  in  rem  for  collision  against  ship  and 
freight,  in  which  the  defendants'  ship  was  held 
solely  to  blame,  the  ship  being  still  under  arrest 
with  the  cargo  on  board,  was  ordered  to  be  sold ; 
the  court  on  motion  directed  the  marshal  to 
discharge  the  cargo,  to  retain  the  same  in  his 
custody  as  security  for  the  payment  of  the  land- 
ing and  other  charges  and  freight,  if  any,  due 
from  the  owners  or  consignees  of  the  cargo  in 
respect  of  the  same,  and  that  in  default  of  any 
application  for  the  delivery  of  the  cargo  within 
fourteen  days,  the  marshal  should  be  authorised 
to  sell  such  part  of  the  cargo  as  might  be  neces- 
sary to  pay  the  said  charges  and  freight,  if  any,, 
due.  The  Gettysburg,  52  L.  T.  60 ;  5  Asp.  M.  C. 
347— Butt,  J. 


Foreign  Ship— Affidavit.]— The  court 


ordered  the  sale  of  a  foreign  ship  on  the  report 
of  the  marshal  that  it  was  desirable  she  should 
be  sold,  and  subject  to  the  filing  of  an  affidavit, 
verifying  the  cause  of  action  and  stating  that  no- 
appearance  had  been  entered.  The  Herculesy. 
11  P.  D.  10  ;  54  L.  T.  273  ;  34  W.  R.  400  ;  5  Asp. 
M.  C.  545— Butt,  J. 

Appraisement  —  Private  Contract.]  —  In  an 
action  for  master's  wages  and  disbursements, 
where  the  ship  proceeded  against  was  subject  to- 
other claims  by  mortgagees  and  material  men, 
the  court  upon  motion,  no  opposition  being 
offered,  ordered  an  official  appraisement  of  the 
ship  to  be  made,  and  the  ship  to  be  sold  by  the 
marshal  by  private  contract  for  a  sum  of  money 
not  less  than  the  appraisement,  upon  proof  that 
the  mortgagees  assented  to  such  sale,  and  that 
notice  of  the  motion  had  been  served  upon  all 
the  claimants.  The  Planet,  49  L.  T.  204  ;  5  Asp. 
M.  C.  144— Hannen,  P. 

Expenses — Marshal's  Fees — Mortgagees.  ]  — 
The  C.  was  arrested  in  an  action  for  necessaries 
supplied  by  the  plaintiff.  The  owners  appeared 
but  did  not  give  bail  or  deliver  pleadings.  The 
mortgagees  of  the  C.  intervened,  and  took  pos- 
session under  the  mortgage,  but  the  C.  still 
remained  in  the  custody  of  the  marshal,  and  was 
subsequently  sold  by  him  under  an  order  of  the 
court  obtained  by  the  interveners.  Judgment 
with  costs,  by  consent,  for  the  interveners,  was 
afterwards  entered.  Under  it  the  interveners 
claimed  from  the  plaintiff  the  amount  due  to  the 
marshal  for  the  expenses  of  the  sale  : — Held, 
that  aB  the  interveners,  though  able  to  obtain 
the  release  of  the  C.  by  giving  bail,  had  not 
done  so,  but  had  obtained  an  order  for  the 
sale  of  the  C,  and  had  received  the  proceeds 
of  such  sale,  thev  must  bear  the  expenses  of  it. 
The  Colamay,  11  P.  D.  17  ;  55  L.  J.,  P.  81 ;  54 
L.  T.  338  ;  5  Asp*  M.  €.  545— Butt,  J. 


i 


1727 


SHIPPING— Practice. 


1728 


Fund  in  Court — Prioritiei.] — When  a  fund,  by 
a  sale  of  a  ship,  is  placed  in  court  by  one  set  of 
•claimants,  so  as  to  be  available  for  other  claim- 
ants, the  former  are  entitled  to  their  costs  up  to 
and  inclusive  of  the  sale,  though  they  do  not 
rank  first  in  respect  of  their  actual  claim.  The 
Immacciata  Ooncezume,  9  P.  D.  37  ;  53  L.  J.,  P. 
19 ;  50  L.  T.  539 ;  32  W.  R.  705 ;  5  Asp.  M.  C. 
208— Butt,  J. 


9.  WARRANT  OF  ARREST. 

Service.] — A  warrant  of  arrest  in  an  action  in 
rem  was  issued  from  the  City  of  London  Court 
•directed  to  the  high  bailiff,  and  others  the  bailiffs 
thereof,  but  was,  without  authority  from  the 
«ourt,  served  by  a  clerk  in  the  high  bailiff's 
office : — Held,  that  this  was  not  a  proper  service 
<of  the  warrant.  Per  Sir  James  Hannen  :  "  Any 
•officer"  mentioned  in  31  &  32  Vict.  c.  71,  s.  23, 
means  any  officer  duly  authorised  by  the  court. 
Per  Butt,  J. :  "  That  it  means  any  officer  whose 
ordinary  duty  it  is  to  serve  processes,  or  one  duly 
authorised  so  to  do."  The  Palomares,  10  P.  D. 
86  ;  54  L.  J.,  P.  54  ;  52  L.  T.  57  ;  33  W.  R.  616  ; 
T,  Asp.  M.  C.  343— D. 

Notice — Telegram.] — When  the  marshal  sends 
by  telegram  to  his  substitute  at  an  outport  notice 
of  the  issue  of  a  warrant,  and  such  substitute 
communicates  it  to  the  master  of  the  ship  against 
which  it  is  issued,  it  is  a  contempt  of  court  to 
move  the  ship  from  the  place  where  it  is  lying. 
The  Seraglio,  10  P.  D.  120 ;  54  L.  J.,  P.  76  ;  52 
L.  T.  865 ;  34  W.  R.  32  ;  5  Asp.  M.  C.  421— 
Hannen,  P. 


10.  REGISTRAR'S  REPORT. 

Objection  to.] — Where  an  action  is  instituted 
in  an  Admiralty  District  Registry  by  part 
owners  of  a  ship  against  the  managing  owner 
for  an  account,  and  the  writ  claims  an  account 
under  Ord.  III.  r.  8,  and  an  order  for  the  filing 
of  the  accounts  is  made  under  Ord.  XV.  r.  1, 
«nd  the  account  is  proceeded  with  pursuant  to 
order,  and  the  district  registrar  reports  thereon, 
such  report  is  to  be  treated  as  the  usual  report 
in  an  Admiralty  Court  action,  and  if  the  defen- 
•dant  seeks  to  take  objection  thereto,  he  must  do 
so  according  to  the  provisions  of  Ord.  LVI.  r.  11, 
otherwise  the  plaintiff  will  be  entitled  to  judg- 
ment thereon.  Goioan  v.  Sprott,  51  L.  T.  266; 
£  Asp.  M.  C.  288—  Butt,  J. 

Time  for.] — A  report  of  the  registrar  and 

merchants  does  not  necessarily  stand  confirmed 
toy  reason  of  the  defendants  failing  to  take  ob- 
jection thereto  within  the  time  provided  for  in 
a*.  117  of  the  Admiralty  Court  Rules,  1859,  so  as 
to  absolutely  entitle  the  plaintiffs  to  payment  to 
them  by  the  defendants  of  a  sum  of  money 
which  the  court  is  of  opinion  ought  not  to  have 
been  allowed  them  in  the  report.  The  Thyatira, 
4i)  L.  T.  713  ;  5  Asp.  M.  C.  178— Hannen,  P. 


Extension  of  Time.  J — The  court  will  not 

•extend  the  time  for  objecting  to  the  registrar's 
report  in  a  co-ownership  action  without  special 
grounds  being  shown  by  the  party  seeking  to 
object.     Go  wan  v.  Sprott,  supra. 


The  court  has  power  to  extend  the  time  within 
which  objection  to  the  report  of  the  registrar 
and  merchants  may  be  taken.  The  Tkyatira, 
supra. 


11.    COSTS. 

Printing  Evidence.  J — The  parties  to  an  action 
between  the  owners  of  the  B.  and  the  C.  agreed 
that  the  evidence  taken  in  an  action  between 
the  owners  of  the  A.  and  the  C,  and  printed  for 
the  purpose  of  an  appeal,  should  be  used  in  the 
action  between  the  B.  and  the  C.  The  plain- 
tiffs paid  the  solicitors  of  the  A.  for  such  prints, 
and  charged  the  sums  so  paid  in  addition  to  the 
regular  charge  of  &/.  per  folio,  as  though  the 
printing  had  been  done  in  this  action,  under 
Ord.  LXVL  r.  7 :— Held,  on  objection  to  the 
taxation,  that  the  charge  of  &f.  per  folio  was  not 
improper.  The  Mammoth,  9  P.  D.  126  ;  53  L.  J, 
P.  70  ;  51  L.  T.  549  ;  33  W.  R.  172  ;  5  Asp.  M.  C. 
289— Butt,  J. 

Third  Counsel.] — In  an  action  arising  out  of  a 
collision  where  damage  had  been  done  to  the 
amount  of  2,700/. : — Held,  that  the  charges  of  a 
third  counsel  should  not  be  disallowed,    lb. 

Counsel's  Fees.] — In  an  action  for  damage  by 
collision,  where  the  damage  to  one 
amounted  to  20,000/.,  and  to  the  other  vc 
to  2,000/.,  three  counsel  were  instructed  on 
behalf  of  the  plaintiffs,  and  the  fees  marked 
ou  their  briefs  were  respectively,  seventy-fiTe 
guineas,  fifty  guineas,  and  thirty  guineas,  and 
the  registrar,  on  taxation,  reduced  these  fees 
to  sixty  guineas,  forty  guineas,  and  twenty-seven 
guineas  ;  the  court,  on  appeal  from  the  taxation, 
allowed  the  original  fees,  holding  that  they  were 
proper  fees  in  a  case  of  that  magnitude.  The 
City  of  Lucknow,  51  L.  T.  907  ;  5  Asp.  M.  C.  340 
—Butt,  J. 

Inevitable  Accident.] — See  The  Naples,  ante, 
col.  1697. 

Discontinuance  —  Commissions  for  Bail.]— 
The  expenses  of  procuring  bail  for  the  release  of 
a  ship  cannot  be  recovered  as  costs  against  a 
plaintiff  who  has  discontinued  his  action,  tboogh 
in  certain  circumstances  they  may  be  recovered 
as  damages.  The  Numida,  The  CoHimgrovt,  10 
P.  D.  158  ;  64  L.  J.,  P.  78  ;  53  L.  T.  681  ;  34  W. 
R.  156  ;  5  Asp.  M.  C.  483— D. 

On  Higher  Scale.]— Costs  on  the  higher  scale 
will  only  be  allowed  under  exceptional  circum- 
stances. The  Raisby  or  Cardiff  Steamship  Cm- 
pany  v.  Barwick,  53  L.  T.  56 ;  6  Asp.  H.  C 
473— Hannen,  P. 

Costs  on  the  higher  scale  will  only  be  granted 
when  special  grounds  of  urgency  or  importance 
are  shown,  as  it  was  intended  that  the  lower 
scale  should  be  the  ordinary  scale.  An  award  of 
2,400/.  having  been  made  in  a  salvage  action, 
an  application  under  Ord.  LXV.r.  9,  for  costs  on 
the  higher  scale  was  made  to  the  coart : — Held, 
that  this  was  not  a  special  ground  so  as  to  take 
the  case  out  of  the  ordinary  rule.  The  Her**, 
9  P.  D.  86  ;  53  L.  J.,  P.  64  ;  50  L.  T.  695  ;  » 
VV.  R.  755 ;  5  Asp.  M.  C.  218— Hannen,  P. 

Re'ereno*  —  Collision  —  Amount  of  Cut* 


1729 


SHIPPING—  Wrecks. 


1730 


allowed.] — Where  a  plaintiff  in  a  reference  in  a 
collision  action  withdraws  a  large  item  of  his 
claim  at  the  reference,  and  not  before,  and  he 
recovers  less  than  two-thirds  of  the  amount 
originally  claimed,  but  more  than  two-thirds  of 
the  amount  which  remains  after  his  withdrawal 
of  the  above  item,  the  original  amount  of  his 
claim  before  withdrawal  is  the  claim  upon  which 
costs  are  to  be  given,  and  he  is  not  entitled  to 
his  costs.  The  Bilean  JDubh,  49  L.  T.  444 ;  5 
Asp.  M.  C.  154— Hannen,  P. 

Jurisdiction.]— As  by  Ord.  LXV.  r.  1,  of 

the  Rules  of  the  Supreme  Court,  1883,  the  costs 
of  all  proceedings  are  in  the  discretion  of  the 
court,  the  general  rule  of  practice  in  the  Ad- 
miralty Court  as  to  the  costs  of  references, 
namely,  that  when  more  than  a  fourth  is  struck 
off  a  claim,  each  party  pays  his  own  costs,  and 
when  more  than  a  third  the  claimant  pays  the 
other  party's  costs,  is  wrong,  and  the  court  must 
exercise  its  discretion  according  to  the  circum- 
stances of  each  particular  case.  The  Empress 
Bvginie  (Lush.  140)  overruled.  T/ie  Friede- 
berg,  10  P.  D.  112  ;  54  L.  J.,  P.  75  ;  52  L.  T. 
837 ;  33  W.  R.  687  ;  5  Asp.  M.  C.  426— C.  A. 

Arrest — Bail.] — A  ship  was  arrested,  and  bail 
required  for  an  exorbitant  sum  :— Held,  that  the 
plaintiffs  must  pay  the  costs  and  expenses  in- 
curred by  the  defendants  in  giving  this  bail. 
The  George  Gordon,  9  P.  D.  46  ;  53  L.  J.,  P.  28  ; 
60  L.  T.  371  ;  32  W.  R.  596  ;  5  Asp.  M.  C.  216 
—Butt,  J. 


12.    APPEALS. 

From  County  Court — Time  for.] — The  power 
conferred  by  s.  27  of  the  County  Court  Admi- 
ralty Jurisdiction  Act,  1868,  to  extend  the  time 
within  which  an  instrument  of  appeal  may 
be  lodged,  provided  sufficient  cause  be  shown,  is 
not  altered  or  curtailed  by  s.  6  of  the  County 
Courts  Act,  1875,  this  latter  section  providing  an 
alternative  mod*  of  appeal.  The  Humber,  9  P.  D. 
12;  53 L.  J.,  P.  7  ;  49  L.  T.  604  ;  32  W.  R.  664  ; 
5  Asp.  M.  C.  181— D. 

To  Court  of  Appeal.] — Where,  on  appeal 

from  a  county  court  in  an  admiralty  cause,  the  Pro- 
bate Divorce  and  Admiralty  Division  alters  the 
judgment,  an  appeal  lies  without  leave  to  the 
Court  of  Appeal  under  s.  10  of  the  County 
Courts  Acts,  1875,  notwithstanding  s.  45  of  the 
Judicature  Act,  1873.  The  Lydia,  14  P.  D.  1  ; 
58  L.  J.,  P.  37 ;  59  L.  T.  843 ;  37  W.  R.  161— 
C.A. 

Collision  — Seasons  of  Nautical  Assessors.]— 
Where  in  a  collision  action  the  nautical  assessors 
sitting  in  the  Admiralty  Division  reduce  their 
reasons  into  writing,  parties  appealing  from  the 
decision  are  not  entitled  to  see  these  reasons  or 
have  copies  of  them  for  the  purposes  of  the 
appeal.  The  Banshee,  56  L.  T.  725  ;  6  Asp.  M. 
C  130— C.  A. 

Staying  proceedings  pending  Appeal  to  House 
«f  Lord*.] — When  an  appeal  is  brought  from  the 
Court  of  Appeal  to  the  House  of  Lords  in  an  ad- 
miralty action  in  which  bail  has  been  given  by 
the  parties,  an  application  by  the  appellant  to 
stay  execution  pending  the  appeal  will  not  be 


granted,  unless  special  circumstances  are  shown 
by  affidavit.  The  Annot  LyU,  11  P.  D.  114  ;  55 
L.  J.,  P.  62  ;  55  L.  T.  676  ;  34  W.  R.  647  ;  6  Asp. 
M.  C.  50— C.  A. 


XIX.    WBECXS. 

Thames  Conservancy — Expenses  of  liaising.] — 

In  ascertaining  the  charges  and  expenses  of 
weighing  or  raising  a  vessel  under  the  Thames 
Conservancy  Act,  1857,  s.  86,  the  cost  of  a  special 
apparatus  provided  by  the  Conservators  for  re- 
moving wrecks,  and  used  on  the  particular  occa- 
sion, may  be  taken  into  account ;  such  cost 
comprising  interest  upon  capital  invested  in  the 
apparatus,  repairs,  a  depreciation  fund,  and 
the  insurance  of  the  apparatus  against  risk. 
The  charge  for  insurance  of  the  apparatus  can- 
not be  estimated  by  reference  to  the  tonnage  of 
the  wreck  raised  by  it.  Where  it  appears  that 
the  work  in  question  could  have  been  done  more 
cheaply  by  a  less  expensive  apparatus,  the 
charges  must  be  based  on  the  lower  rate.  The 
Harrington,  13  P.  D.  48  ;  57  L.  J.,  P.  45  ;  59  L. 
T.  72  ;  6  Asp.  M.  C.  282-Hannen,  P. 

Notice  to  Receiver — Bight  to  Salvage.]— The 
provisions  of  s.  450  of  the  Merchant  Shipping 
Act,  1854,  requiring  a  person  who  finds  or  takes 
possession  of  a  wreck  to  give  notice  to  the 
receiver,  are  not  applicable  to  the  case  of  a  per- 
son who  takes  possession  of  a  stranded  vessel 
under  the  belief  that  he  is  the  purchaser  thereof, 
and  in  such  a  case  these  provisions  do  not 
operate  to  deprive  him  of  his  right  to  recover 
salvage.  The  Liffey,  58  L.  T.  351  ;  6  Asp.  M. 
C.  255 — Hannen,  P. 

liability  of  Harbour  Authority  for  Non- 
removal.] —  See  Dormont  v.  Furness  Railway, 
ante,  col.  1718. 


XX.    INQUIRIES  BT  B0ABD  OF  TRADE. 

Befaaal  to  order  Be-hearing — Appeal] — A  re- 
fusal by  the  Board  of  Trade  to  grant  a  re-hear* 
ing  of  an  investigation  into  the  conduct  of  a 
certificated  officer,  is  not  a  decision  within  42  & 
48  Vict.  c.  72,  s.  2,  sub-s.  2,  and  therefore  no 
appeal  lies  from  it  to  the  Admiralty  Division 
of  the  High  Court  The  Ida,  11  P.  D.  37  ; 
55  L.  J.,  P.  15  ;  54  L.  T.  497  ;  34  W.  R.  628  ;  6 
Asp.  M.  C.  57— D. 

Befusal  to  Institute  Inquiry — Foreign  Ship.] 
— A  refusal  by  the  Board  of  Trade  to  institute  an 
inquiry  under  17  &  18  Vict.  c.  104,  s.  512  is  not 
a  condition  precedent  to  an  action  in  rem  against 
a  foreign  ship.  The  Vera  Cruz,  9  P.  D.  88  ;  51 
L.  T.  24  ;  5  Asp.  M.  C.  254— Per  Butt,  J.  See 
S.  C.  in  H.  L.,  ante,  col.  1720. 


XXI.      DETENTION  OF  SHIPS  BT  B0ABD 

OF  TBABE. 

Bight  to  Trial  at  Bar— Change  of  Venue.]— 
By  the  Crown  Suits  Act,  1865,  s.  46,  where  in 
any  cause  in  which  the  attorney-general  is 
entitled  on  behalf  of  the  Crown  to  demand  as  of 
right  a  trial  at  bar  he  states  to  the  court  that  lie 
waives  that  right,  "  the  court  on  the  application 

3  K 


1781 


SOLICITOR. 


1782 


of  the  attorney-general  shall  change  the  venae 
to  any  court  he  may  select " :  — Held,  that  an 
action  under  39  A  40  Vict,  c  80,  s.  10,  against 
the  secretary  of  the  Board  of  Trade,  to  recover 
damages  for  the  detention  of  a  ship  for  survey 
without  reasonable  and  probable  cause,  is  within 
the  above  section,  that  the  attorney-general  is 
entitled  to  demand  as  of  right  a  trial  at  bar  in 
such  an  action,  and  that  the  court  is  bound  on 
his  waiving  that  right  to  change  the  venue  to 
any  county  wherein  he  elects  to  have  the  action 
tried.  Dixon  v.  Farrer,  18  Q.  B.  D.  43  ;  56  L. 
J.,  Q.  B.  53  ;  55  L.  T.  578  ;  35  W.  R.  95  ;  6  Asp. 
M.  C.  62— C.  A. 


SLANDER. 

See  DEFAMATION. 


SLANDER   OF   TITLE. 

See  TRADE. 


SOCIETY. 

Building.]— See  Building  Society. 
Friendly.]— See  Friendly  Society. 
Benefit.]— See  Fbiendly  Society. 
Industrial.] — See  Industrial  Society. 


SOLICITOR. 

I.  Articled  Clerks,  1733. 
II.  Certificate,  1733. 

III.  Privilege* 

1.  Personal  to  Solicitor,  1733. 

2.  In  Matters  relating  to  Clients,  1733. 

IV.  Authority  and  Duty. 

h  Authority  in  General,  1735. 

2.  Dealings  with  Clients, 

a.  Mortgage  by  Clients,  1737. 

b,  Gifts  to  and  Purchases  by  Solici- 

tor, 1739. 

3.  Notice  to  Solicitor,  when  Notice  to 

Client. — See  Notice*  . 

4.  Other  Duties  in  relation  to  Clients, 

1740. 


V. 


VI. 


Liability  of. 

1.  Summary  Jurisdiction. 

a.  Striking  off  the  Roll,  1741. 

b.  Attachment,  1742. 

c.  For  Costs,  1743. 

d.  For  Payment  of  Money,  1744. 

e.  Delivery  np  of  Documents,  1746. 

2.  For  Negligence,  17 46. 

3.  In  other  Cases,  1748. 

4.  What  Acts  of  Partner  binding  c* 

Firm,  1749. 

Costs. 

1.  Bill  of  Costs. 

a.  Delivery  of,  1750. 
*.  Contents  of,  1752. 

c.  Agreements  as  to  Costs,  1753. 

d.  Interest  on,  1 753. 
v.  Taxation  of,  1753. 

i.  Wbo  entitled  to  Order,  1753. 
ii.  Practice  Generally,  1754. 
iii.  After  Payment,  1756. 
iv.  More  than  Twelve  Months 

after  Delivery,  1759. 
v.  Costs  of  Taxation,  1761. 
vi.  Reviewing  Taxation.  1762. 
vii.  What  Sams  allowed,— Set 
infra,  VI.  2. 

2.  Wliat  Sums  allowed,  1763. 

a .  Solicitors  Remuneration  Act. 

i.  Election  as  to  Scale,  1763. 
ii.  In  what   cases  applicable, 
1765. 
a.  Generally,  1765. 
0.  Sale  of  Land,  1767. 
y.  Leases,  1773. 
5.  Mortgages,  1774. 
«.  Trustee  and  Cestui  qw 
Trust,  1775. 

b.  In  other  Cases,  1775. 

e.  When  Solicitor  a  Party,  1778. 

d.  When  Solicitor  an  Executor  or 

Trustee,  1778. 

3.  Payment,  1781. 

4.  Recovery  of,  1781. 

5.  Lien  for,  1783. 

a.  What  Debts,  1783. 

b.  On  what  Property,  1783. 

c.  In  what  Cases,  1784. 

d.  Priority,  1785. 

e.  When  Lost,  1786. 
/.  Set-off,  1787. 

g.  Collusion,  1787. 

6.  Charging  Orders,  1787. 

a.  Who  entitled  to,  1787. 

b.  In  respect  of  what  Costs,  1788. 

c.  Property  Recovered  or  Preserred, 

1788. 

d.  Priority,  1790. 

e.  Raising  Costs,  1792. 


VIL 

VIIX 

IX 

X. 


Country    Solicitor 

AGENT,  1792. 


and    London 


Change  of  Solicitors,  1792. 
Unqualified  Practitioners,  1793. 


Attestation  of  Bill  of  Sale 
See  Bills  of  Sale,  1^4  and  6. 


1788 


SOLICITOR. 


1784 


I.    ARTICLED   CLERKS. 

Examination— Ten  Tears'  Employment.]— A 
solicitor's  clerk  claiming  the  right  under  s.  4  of 
23  &  24  Vict.  c.  127,  to  go  up  for  his  inter- 
mediate examination  after  haying  served  as 
general  clerk  in  a  solicitor's  office  for  ten  years, 
and  as  an  articled  clerk  for  a  year  and  a  half, 
stated,  in  answer  to  questions  put  to  him  by 
the  examiners  of  the  Incorporated  Law  Society, 
that  he  had  commenced  such  antecedent  ser- 
vice at  the  age  of  thirteen.  The  examiners 
decided  that  service  at  such  age  was  not  bona 
fide  an  active  employment  in  the  business  of 
a  solicitor's  office,  and  refused  to  admit  him 
to  the  examination.  On  an  application  to  the 
High  Court  to  overrule  this  decision : — Held, 
that  no  appeal  would  lie.  James,  In  re,  33  W.  R. 
654-D. 

Death  of  Solicitor— Beturn  of  Premium.  ]— A 
solicitor  who  had  received  a  premium  on  taking  an 
articled  clerk,  died  during  the  term  of  the  articles : 
Held,  that  his  estate  was  not  liable  for  the 
return  of  any  part  of  the  premium.  Fvmx  v. 
Cdrr,  28  Ch.  D.  409  ;  54  L.  J.,  Oh.  478  ;  52  L.  T. 
348 ;  33  W.  R.  363  ;  49  J.  P.  503— Pearson,  J. 


II.    CERTIFICATE. 

BenewaL] — Where  a  solicitor  has  neglected 
for  a  whole  year  to  renew  his  certificate,  the 
Master  of  the  Rolls  only  has  power  to  order  the 
registrar  of  certificates  (the  Incorporated  Law 
Society)  to  grant  him  a  certificate  for  the 
current  year.  The  right  of  a  solicitor  who  has 
neglected  to  renew  his  certificate  to  apply  for 
a  fresh  one  is  not  a  "  right  acquired  or  accrued  " 
within  40  &  41  Vict.  c.  25,  s.  23,  Proviso  (B). 
Chaffers,  In  re,  Incorporated  Law  Society,  Ej> 
parte,  15  Q.  B.  D.  467— D. 

Restraining  by  Court,  instead  of  Striking 

off  Bolls.]— See  Whitehead,  In  re,  post,  col.  1741. 


III.    PRIVILEGE. 

1.    PERSONAL    TO    SOLICITOR. 

Action  commenced  in  High  Court — Costs — 
County  Courts  Act,  1867,  s.  5.]— Section  5  of  the 
County  Courts  Act,  1867,  which  deprives  plain- 
tiffs in  actions  commenced  in  the  High  Court  of 
costs  if  less  than  20/.  in  contract,  or  10/.  in  tort, 
is  recovered,  applies  to  an  action  in  which  a 
solicitor  is  plaintiff.  Blair  v.  Eider,  21  Q.  B.  D. 
18.> ;  57  L.  J„  Q.  B.  512  ;  59  L.  T.  337  ;  36  W.  R. 
767-D. 

May  be  sued  in  Mayor's  Court.] — A  solicitor 
is  equally  liable  to  be  sued  in  an  action  in  the 
Mayor's  Court  as  in  the  Superior  Court.  Day  v. 
Ward,  17  Q.  B.  D.  703  ;  55  L.  J.,  Q.  B.  494  ;  55 
L.  T.  518 ;  36  W.  R.  59— D. 

2.  IN  MATTERS  RELATING  TO  CLIENTS. 

'  Prodootion  <of  Deed— Names  of  Clients.  ]— » 
In  an  action  against  a  married  woman  judg- 
ment was  given  for  the  plaintiff,  and  an  inquiry 
was  directed  before  a  mastert  as  to  her  separate 


estate.  On  the  defendant's  marriage  a  settle- 
ment had  been  executed,  to  the  trustees  of  which 
the  appellant  was  solicitor,  and  as  such  was  in 
possession  of  the  deed.  The  appellant  appeared 
before  a  master  on  a  subpoena  duces  tecum, 
and  was  called  upon  to  produce  the  deed,  but 
refused  to  give  the  names  of  the  trustees 
although  he  admitted  that  he  knew  them; — Held, 
first,  that  the  appellant  was  bound  to  produce 
the  deed  inasmuch  as  his  clients,  the  trustees, 
could  not  have  withheld  it  j  secondly r  that  he 
was  bound  to  give  the  names  of  the  trustees 
on  the  ground  that,  the  privilege  of  the  soli- 
citor being  the  privilege  of  the  client,  the  solicitor 
is  bound  to  state  the  names  of  those  for  whom 
he  claims  the  privilege,  and  on  the  further 
ground  that  the  applicant's  knowledge  of  the 
trustees  might  have  been  obtained  otherwise 
than  by  means  of  confidential  communications 
from  his  clients.  Bursill  v.  Tanner,  16  Q.  B.  D. 
1 ;  55  L.  J.,  Q.  B.  53  ;  56  L.  T.  445  ;  34  W.  R, 
35— C.  A. 

Solicitor  Defendant  in  Action — Confidential 
Communication.] — In  an  action  for  libel  con- 
tained in  a  circular,  the  defendants  justified, 
giving  full  particulars  of  the  justification.  The 
plaintiff  administered  interrogatories  as  to  certain 
communications  referred  to  by  the  defendants, 
which  they  objected  to  answer  upon  the  ground 
that  by  so  doing  they  would  disclose  facts  and 
information  obtained  by  them  in  confidence  and 
acting  in  their  capacity  as  solicitors  for  a  client : 
— Held,  that  the  defendants  were  not  bound  to 
further  answer  the  interrogatories,  the  privilege 
claimed  not  being  their  privilege,  but  that  of 
theit  clients.  Proctor  v.  Smiles,  65  L.  J.,  Q.  B, 
527— C.  A. 

Advice  sought  to  further  Commission  of 
Crime.] — All  communications  between  a  solicitor 
and  his  client  are  not  privileged  from  disclosure, 
but  only  those  passing  between  them  in  profes- 
sional confidence  and  in  the  legitimate  course  of 
professional  employment  of  the  solicitor.  Com- 
munications made  by  a  solicitor  to  his  client 
before  the  commission  of  a  crime  for  the  purpose 
of  being  guided  or  helped  in  the  commission  of 
it,  are  not  privileged  from  disclosure.  Reg.  v.  Ootc, 
14  Q.  B.  D.  153 ;  54  L.  J.,  M.  C.  41  ;  52  L.  T, 
25  ;  33  W.  R.  396  ;  49  J.  P.  374  ;  15  Cox,  C.  C, 
611— C.  C.  R. 

C.  and  R.  were  partners  under  a  deed  of  part- 
nership. M.  brought  an  action  against  R.  &  Co., 
and  obtained  judgment  therein,  and  issued  exe- 
cution against  the  goods  of  R.  The  goods  seised  in 
execution  were  then  claimed  by  C.  as  his  absolute 
property  under  a  bill  of  sale  executed  in  his 
favour  by  R.  at  a  date  subsequent  to  the  above- 
mentioned  judgment.  An  interpleader  issue  was 
ordered  to  determine  the  validity  of  the  bill  of 
sale,  and  upon  the  trial  of  this  issue,  the  partner- 
ship deed  was  produced  on  C.'s  behalf,  bearing 
an  indorsement  purporting  to  be  a  memorandum 
of  dissolution  of  the  said  partnership,  prior  to  the 
commencement  of  the  action  by  M.  Subse- 
quently C.  and  R.  were  tried  and  convicted  upon 
a  charge  of  conspiring  to  defraud  M.,  and  upon 
that  trial  the  case  for  the  prosecution  was,  that 
the  bill  of  sale  was  fraudulent,  that  the  partner- 
ship between  R.  and  C.  was  in  truth  subsisting 
when  it  was  given,  and  that  the  memorandum  of 
dissolution  endorsed  on  the  deed  was  put  there 
after  M.  had  obtained  judgment,  and  fraudulently 

3  K  2 


1785 


SOLICITOR— Autltority  and  Duty. 


1736 


antedated,  the  whole  transaction  being,  it  was 
alleged,  a  fraud  intended  to  cheat  M.  of  the 
fruits  of  his  execution.  Upon  the  trial  a  solicitor 
was  called  on  behalf  of  the  prosecution  to  prove 
that  after  M.  had  obtained  the  judgment  C.  and 
R.  together  consulted  him  as  to  how  they  could 
defeat  M.'s  judgment,  and  as  to  whether  a  bill  of 
sale  could  legally  be  executed  by  R.  in  favour  of 
C.  so  as  to  defeat  such  judgment,  and  that  no 
suggestion  was  then  made  of  any  dissolution  of 
partnership  having  taken  place.  The  reception 
of  this  evidence  being  objected  to,  on  the  ground 
that  the  communication  was  one  between  solicitor 
and  client,  and  privileged:  the  evidence  was 
received,  but  the  question  of  whether  it  was 
properly  received  was  reserved  for  this  court : — 
Held,  that  the  evidence  was  properly  received. 
Cromack  v.  Heatlicote  (2  B.  &  B.  4)  ;  Rex  v. 
Smith  (1  Phil.  &  Am.  on  Evidence,  188)  ;  and 
Doe  v.  Harris  (5  C.  &  P.  592),  overruled.  FolUtt 
v.  Jefferyes  (1  Sim.,  N.  S.  1)  ;  Russell  v.  Jackson 
(9  Hare,  387)  ;  and  Gartsidey.  Out  ram  (26  L.  J., 
(Ch.  113),  approved.    lb. 

Communication!  with  Client  when  Privileged 
from  Discovery.]— See  Discoyxby,  I.,  4  and 
II.,  5. 


IV.    AUTHORITY  AMD  DUTY. 

I.    AUTHORITY  IN  GENERAL. 

Retainer— To  issue  Writ-— London  Agent.] — 
A  retainer  to  a  country  solicitor  does  not  justify 
an  action  in  which  his  London  agents  are 
the  solicitors  on  the  record.  A.,  an  illiterate 
woman,  being  desirous  of  knowing  whether  there 
was  any  balance  coming  to  her,  as  administra- 
trix of  C,  her  deceased  husband,  out  of  the 
proceeds  of  a  sale  by  the  mortgagee  of  property 
mortgaged  by  C,  gave  to  B.,  a  country  solicitor 
(who  had  recovered  j  udgment  in  an  action  against 
her,  as  administratrix,  for  a  debt  due  to  him 
from  her  deceased  husband)  this  written  retainer : 
44 1  hereby  authorise  you  to  act  as  my  solicitor  in 
the  administration  of  my  late  husband's  estate, 
and  authorise  you  to  investigate  the  accounts  of 
the  mortgagee,  and  take  such  steps  as  you  may 
think  proper  in  the  matter  on  my  behalf."  A 
writ  was  subsequently  issued  by  a  London  firm 
of  solicitors  in  the  names  of  A.  and  B.,  as  plain- 
tiffs, claiming  an  account  of  the  proceeds  of  sale 
of  the  mortgaged  property  and  payment  of  the 
balance,  the  claim  by  A.  being  "  as  legal  per- 
sonal representative  of  C,"  by  B.  "  as  a  creditor 
of  C.  who  had  obtained  judgment  against  A., 
and  had  obtained  execution  by  the  appointment 
of  a  receiver  of  the  balance  due  from  C."  Upon 
motion  by  A.  that  her  name  might  be  struck  out 
of  the  writ  as  having  been  issued  without  her 
knowledge  and  without  any  authority  on  her 
part : — Held,  that  the  retainer  was  not  sufficient 
to  justify  the  issue  of  the  writ ;  but  whether 
sufficient  or  not,  it  was  a  retainer  to  B.,  and  did 
not  authorise  the  London  firm  to  issue  the  writ 
in  the  name  of  A.  as  her  solicitors.  Wray  v. 
Kemp,  26  Ch.  D.  169 ;  53  L.  J.,  Ch.  1020 ;  50 
L,  T.  552  ;  32  W.  R.  334— Chitty,  J. 


Service  of  Kotiees  on  former  Solicitor.] — 
Where  a  judgment  has  not  been  worked  oat, 
nor  the  fruits  of  the  judgment  obtained,  in- 


asmuch as  it  is  the  duty  of  the  solicitor  of  the 
defendant  to  defend  his  client's  interest  in  the 
event  of  execution  being  levied  against  him,  his 
authority  still  continues  so  as  to  make  service  of 
a  notice  of  appeal  on  him  good  service  on  his 
client,  until  such  time  as  the  client  has  taken 
the  proper  steps  for  informing  his  opponent 
that  ne  has  withdrawn  his  solicitor's  authority. 
De  la  Pole  (Lady)  v.  />/>*,  29  Ch.  D.  351 ;  H 
L.  J.,  Ch.  940  ;  52  L.  T.  457 ;  33  W.  R.  58>- 
C.  A. 


Employment  to  collect  a  Debt— Prooeediigt 
in  Interpleader.] — A  solicitor  who  has  recovered 
judgment  for  a  client  under  an  ordinary  re- 
tainer, has  no  authority,  without  special 
instructions,  to  engage  in  proceedings  in  inter- 
pleader. James  v.  Ricknell,  20  Q.  B.  D.  164 ;  5T 
L.  J.,  Q.  B.  113  ;  58  L.  T.  278  ;  36  W.  R.  280-D. 


To   Eeceive  Mortgage  Money]— G.  and  H. 
were   mortgagees  for    1,000/.   on   property  of 
8.    Their    solicitors,  D.  &  P.,  who  had  the 
deeds  in  their  custody,  applied  to  the  defendant, 
who  was  also  a  client  of  theirs,  saying  that 
they  believed  he  had  1,000*.  to  invest  on  mort- 
gage, and  that  G.  and  H.  wanted  1,000/.  on  a 
transfer  of  S/s  mortgage.    The  defendant  in- 
spected the  property,  and  being  satisfied,  he,  on 
the  12th  of  June,  1878,  sent  the  1,000.'.  to  D.  &  P., 
who  gave  him  a  receipt  for  it     In  July,  D.  k  P. 
fraudulently  induced  G.   and  H.  to  execute  a 
deed  of  transfer  to  the  defendant  with  a  receipt 
indorsed,  which  deed  they  stated  to  G.  and  H. 
to  be  a  deed  of  reconveyance  to  S.  on  his  paying 
off  the  mortgage.     D.  &  P.  shortly  afterwards 
handed  this  deed  with  the  title  deeds  to  the 
defendant,  and  went  on  paying  him  interest  as 
if  they  had  received  it  from  S.,  who  was  in  fact 
paying  his  interest  to  the  agents  of  G.  and  H. ; 
G.  and  H.  made  no  inquiry  as  to  the  mortgage, 
and  this  went  on  till  1883,  when  D.  &  P.  became 
bankrupts,  and  the  l,0O0Z.  received  from  the 
defendant,  which  had  never  been  handed  orer 
to  G.  and  H.,  was  lost.    G.  and  H.  then  brought 
their  action  against  the  defendant,  asserting  a 
right  against,  the  property  in  the  nature  of  an 
unpaid  vendor's  lien  : — Held,  that  as  the  plain- 
tiffs by  the  deed  of  transfer  and  receipt  which 
they  handed  to  D.  &  P.  enabled  them  to  repre-1 
sent  to  the  defendant  that  the  1,000/.  which  bal 
had  previously  handed  to  D.  &  P.  had  come  to  the| 
hands  of  the  plaintiffs,  they  had  raised  a  countr 
equity  which  prevented  their  claiming  a  vendoi 
lien,  though  this  would  not  have  been  the  cassj 
if  (D.  &  P.  having  no  authority  to  receive  mone 
for  the  plaintiffs)  the  defendant  had  paid  U 
1.000/  to  D.  &  P.  at  the  time  when  the  deedl| 
were  delivered  to  him,  since  he  would  then  havi 
known  that  the  plaintiffs  had  not  received  the 
money.    Stcinbanhs,  Ex  parte  (11  Ch.  D.  325), 
distinguished.      Gordon    v.  James,  30  Ch.  D. 
249— C.  A. 

To  receive  Payments  from  Becoivsr.]— The 
solicitor  having  carriage  of  the  proceedings  has 
not,  as  such,  and  in  the  absence  of  special 
authority  in  that  behalf,  power  to  give  a  valid 
receipt  for  moneys  ordered  to  be  paid  by  a 
receiver  to  his  client.  Browne's  Estate,  In  rer 
19  L.  R.,  Ir.  183 -C.  A. 


1787 


SOLICITOR— Authority  and  Duty. 


1788 


2.   DEALINGS    WITH   CLIENTS. 

a.  Mortgage  by  Clients. 

Absence  of  Independent   Advice  —  Bate  of 
Iittnit—  Power  of  Sale.] — The  plaintiff,  who 
had  only  just  attained  his  majority,  and  his 
sister  and  brother,  being  entitled  in  remainder 
under  a  will  of  which  R.,  who  was  their  father, 
and  P.  were  trustees,  and  under  which  R.  was 
tenant  for  life,  joined  with  R.  in  mortgaging 
the  property  to  secure  advances,  with  interest 
thereon  at  10  per  cent,  which  was  made  for  R.'s 
benefit     The    power  of   sale  was  exercisable 
without  notice,  and  the  mortgage  contained  a 
clause  providing  that  if  the  power  of  sale  should 
arise  in  the  lifetime  of  R.,  it  should  be  lawful 
for  P.  to  postpone  the  sale,  or  to  await  R.'s 
death,  and  then  obtain  payment  of  the  shares  of 
the  children.    P.  was  a  certificated  conveyancer, 
and  prepared  the  deeds  for  all  parties.    In  an 
action  by  the  plaintiff  against  R.  and  P.  and  the 
other  mortgagors,  claiming  to  have  the  deeds  set 
aside  on  the  ground  of  undue  influence  and  want 
of  proper  advice,  or  that  R.  might  indemnify 
the  plaintiff,  the  judge  being  satisfied  that  the 
plaintiff  had,  on  his  own  evidence,  acted  volun- 
tarily and  with  full  understanding,  the  plaintiff 
was  refused  relief  against  P.,  but  R.  having  used 
the  trust  funds  for  his  own  benefit,  was  ordered 
to  indemnify  the  plaintiff  against  his  liability  to 
P.:— Held  (on  appeal  against  the  judgment  in 
faroar  of  P.),  that  the  court  being  dissatisfied 
with  the  mortgage  (1)  on  account  of  the  interest 
being  10  per  cent;  (2)  on  the  ground  that  the 
exercise  of  the  power  of  sale  could  be  postponed ; 
and  (3)  on  the  ground  that  the  power  of  sale 
was  unrestricted,  the  judgment  would  only  be 
affirmed  on  the  terms  of  (1)  P.  asking  for  no 
costs  in  the  court  below  or  on  appeal ;  (2)  P. 
undertaking  to  press  for  no  interest  against  the 
plaintiff  which  had  accrued  due  in  R.'s  lifetime ; 
(3)  P.  allowing  the  plaintiff  to  redeem  his  share 
on  payment  of  a  sum  proportionate  to  his  share 
of  the  property  mortgaged.    Readdy  v.  Pender- 
$<ut,  56  L.  T.  790— C.  A. 

Unusual  Provisions— Power  of  Sale— Duty 
to  Explain  Provisions.]  — In  April,  1879,  P. 
owed  450/.  to  his  solicitor  K.,  who  was  pressing 
for  payment  On  the  11th  of  April,  1879,  he 
gave  K.  his  promissory  note  for  4661. 17*.  10d., 
payable  three  months  after  date,  and  on  the  31st 
of  May  signed  an  agreement  to  mortgage  to  K. 
his  interest  in  a  railway  for  the  4662. 17*.  10<*. 
The  agreement  contained  a  provision  that,  if 
that  sum  was  not  paid  on  the  11th  of  July,  K. 
should  be  at  liberty  to  sell  the  property  without 
notice.  The  agreement  was  drawn  by  K.,  and  P. 
had  no  independent  advice.  Default  having 
been  made,  K.  sold  without  giving  such  notice  as 
is  required  in  the  common  form  of  power  of 
sale: — Held,  that  as  this  was  not  an  ordinary 
mortgage  transaction,  but  an  arrangement  for 
giving  the  client  time  for  payment  of  a  debt 
presently  payable,  the  doctrine  of  Cockburn  v. 
Edward*  (18  Ch.  D.  449)  did  not  apply  ;  that  it 
was  not  incumbent  on  K.  to  explain  to  P.  the 
onnsual  form  of  the  power  of  sale ;  and  that  the 
sale  could  not  be  impeached  on  the  ground  that 
it  was  not  authorised  by  the  common  form  of 
power.  Poolers  Trustee  v.  Whet  ham,  33  Ch.  D. 
Ill ;  55  L.  J.,  Ch.  899  ;  55  L.  T.  333  ;  34  W.  R. 
689-C.  A. 


In  a  mortgage  to  a  solicitor  by  his  client  there 
was  a  power  of  sale  without  qualification.  It 
was  not  explained  to  the  mortgagor  that  it  was 
usual  to  insert  a  proviso  that  the  power  should 
not  be  exercised  unless  interest  was  in  arrear 
for  three  months  or  notice  to  pay  off  had  been 
given  : — Held,  that  the  power  could  not  be 
properly  exercised  as  against  the  mortgagor, 
though  three  months'  interest  was  in  arrear. 
Craddock  v.  Rogers,  53  L.  J.,  Ch.  968  ;  51  L.  T. 
191— North,  J. 

Injunction  to  Restrain  Sale  by  Mortgagee.] 
— The  ordinary  rule  that  the  court  will  not 
grant  an  interlocutory  injunction  restraining  a 
mortgagee  from  exercising  his  power  of  sale 
except  on  the  terms  of  the  mortgagor  paying 
into  court  the  sum  sworn  by  the  mortgagee  to  be 
due  for  principal,  interest,  and  costs,  does  not 
apply  to  a  case  where  the  mortgagee  at  the  time 
of  taking  the  mortgage  was  the  solicitor  of  the 
mortgagor.  In  such  a  case  the  court  will  look 
to  all  the  circumstances  of  the  case,  and  will 
make  such  order  as  will  save  the  mortgagor  from 
oppression  without  injuring  the  security  of  the 
mortgagee.  MacLeod  v.  Jtmes,  24  Ch.  D.  289 ; 
53  L.  J.,  Ch.  145 ;  49  L.  T.  321  ;  32  W.  R.  43— 
C.A. 

The  plaintiff  was  a  lady  who  was  entitled 
to  a  life  interest  in  leasehold  property  which 
she  had  mortgaged  to  various  persons.  The 
defendant  acted  as  her  solicitor,  and  with  her 
sanction,  in  order  to  release  her  from  embarrass- 
ment, bought  up  several  of  the  incumbrances 
with  his  own  money  and  took  a  transfer  of 
them  to  himself,  having  previously  taken  a 
mortgage  of  the  life  interest  to  secure  his  past 
costs  and  the  costs  which  he  might  incur  in 
paying  off  the  incumbrances.  Afterwards  the 
plaintiff  discharged  the  defendant,  and  em- 
ployed another  solicitor,  who  applied  to  the 
defendant  for  information  respecting  the  secu« 
rities  transferred.  The  defendant  refused  to 
give  this  information  unless  the  payment  of 
what  was  due  to  him  was  guaranteed,  and 
threatened  to  proceed  to  a  sale  of  the  property. 
The  plaintiff  then  brought  an  action  to  impeach 
the  securities  and  to  restrain  the  sale  of  the 
property,  and  moved  for  an  injunction  till  the 
hearing: — Held,  that  considering  all  the  cir- 
cumstances, an  injunction  ought  to  be  granted, 
on  the  plaintiff  paying  into  court  such  a  sum  aa 
the  court  considered  would  cover  the  amount 
actually  advanced  by  the  defendant,  and  amend* 
ing  the  writ  so  as  to  make  it  a  simple  action  for 
redemption  and  injunction.    lb. 

Bate  of  Interest  allowable.]  —  Where  the 
mortgagee  at  the  time  of  making  the  mortgage 
was  the  solicitor  of  the  mortgagor,  and  a  dis- 
pute arose  as  to  the  rate  of  interest  to  which  he 
was  entitled  : — Held,  that  interest  must,  under 
the  circumstances,  be  allowed  at  5  per  cent 
Maclcod  v.  Jones,  53  L.  J.,  Ch.  534  ;  50  L.  T, 
358  ;  32  W.  R.  660— Pearson,  J. 

Opening  Settled  Account— Lapse  of  Time.]— 
Accounts  between  a  mortgagee  solicitor  and  nia 
client,  the  mortgagor,  stated  and  signed  more 
than  thirty  years  ago,  were  opened  on  the 
grounds  that  the  client  had  no  independent 
nrtvice,  and  signed  without  examination  or  ex- 
planation, that  the  accounts  contained  improper 
\  items,  and  that  a  third  person  was  put  forward 


1789 


SOLICITOR— Authority  and  Duty. 


1740 


as  the  mortgagee.    Ward  v.  Sharp,  53  L.  J.,  Ch. 
313  ;  50  L.  T.  557  ;  32  W.  R.  584— North.  J. 


b.  Gifts  to  and  Purchases  by  Solicitor. 

Voluntary  Gift— Election  to  Abide  by— Delay 
-taction  by  Personal  Representative.]— If  a 
person,  who  has  made  a  gift  to  a  solicitor  while 
the  relation  of  solicitor  and  client  subsisted  be- 
tween them,  is  entitled  at  the  time  of  his  death 
to  have  the  gift  set  aside,  the  personal  represen- 
tative of  the  deceased  upon  his  death,  succeeds 
to  the  right,  although  the  deceased  had  no  in- 
tention of  exercising  it,  and  had  even  expressed 
a  determination  not  to  do  so,  for  he  might  have 
changed  that  determination  the  next  day,  and 
would  have  had  a  perfect  right  to  do  so.  A 
solicitor  cannot  take  a  gift  from  his  client  while 
the  relation  of  solicitor  and  client  subsists,  and, 
in  order  to  sustain  such  a  gift,  if  made,  some- 
thing must  be  done,  after  the  confidential  rela- 
tion has  ceased,  amounting  to  a  release  of  the 
client's  right  to  set  aside  the  gift ;  but  the  sub- 
sequent settlement  by  the  client  of  a  bill  of  costs 
does  not  amount  to  such  a  release.  Tyars  v. 
AUop,  59  Ii.  T.  367 ;  36  W.  R.  919— Kekewich,  J. 
Affirmed  37  W.  R.  339  ;  53  J.  P.  212— C.  A. 

A.,  acting  as  a  solicitor  for  G.  in  an  action,  in 
June,  1880,  recovered  by  a  compromise,  5,000Z. 
for  her,  which  he  received,  and,  out  of  it,  by  her 
desire,  retained  1,000/.  as  a  gift  to  himself.  The 
relation  of  solicitor  and  client  terminated  shortly 
afterwards.  In  his  evidence  A.  swore  that  in 
April,  1883,  G.  had  told  him  that  she  had  deter- 
mined to  adhere  to  what  she  had  done.  Since 
the  severance  of  the  relation  G.  had  also  settled 
a  bill  of  .costs,  and  had  never  done  any  act  indi- 
cating an  intention  to  recede  from  her  gift.  She 
died  in  June,  1883.  Her  administratrix  com- 
menced this  action  within  six  months,  but  died 
in  October,  1884.  In  June,  1886,  T.  took  out  ad- 
ministration to  G.'s  effects,  and  in  the  following 
August  he  got  an  order  of  revivor  in  this  action. 
Poverty  was  the  excuse  given  for  the  delay : — 
Held,  that  the  gift  was  bad  at  the  time  it  was 
made ;  that  G.  had  never  effectually  released  her 
right  to  set  it  aside,  and  at  the  time  of  her  death 
was  entitled  to  exercise  that  right ;  that  on  her 
death  her  personal  representative  succeeded  to 
the  right ;  that  it  had  been  kept  alive  by  the 
action  notwithstanding  the  delay  ;  and  that  the 
gift  must  consequently  be  now  set  aside.  Mor- 
gan v.  Morgan  (6  Ch.  D.  638)  approved  and  fol- 
lowed. Mitchell  v.  Hamfray  (8  Q.  B.  D.  587) 
explained  and  distinguished.    lb. 

Purchase  from  Client's  Trustee  in  Bankruptcy 
—Obligation  to  make  complete  Disclosure.] — An 

action  was  brought  by  the  trustee  in  bankruptcy 
of  L.  to  set  aside  a  sale,  made  by  a  former  trustee 
in  the  bankruptcy,  of  the  bankrupt's  interest  in 
certain  freehold  property  under  a  will.  The 
defendants  were  J.  P.,  the  solicitor  of  the  bank- 
rupt, and  his  brother,  W.  P.,  and  the  sale  was 
made  to  J.  P.  in  the  name  of  W.  P.  as  his 
nominee.  Upon  the  construction  of  the  will, 
under  which  the  bankrupt  was  entitled,  it  was 
doubtful  whether  he  took  absolutely  or  for  life 
only.  In  the  former  case  his  interest  would  be 
worth  about  2,000/. ;  in  the  latter  case  about 
200/.  J.  P.  purchased  it  for  77/.,  and  it  was 
subsequently  declared  by  the  court  to  be  an 
absolute  interest.    J.  P.  had  acted  as  solicitor  to 


the  bankrupt  before  and  after  his  bankruptcy, 
and  had  advised  him,  according  to  counsel's 
opinion,  that  he  took  only  a  life  interest  The 
question  was,  whether  the  rule  of  law,  which 
prevents  a  solicitor  from  purchasing  the  property 
of  his  client  without  giving  full  and  complete 
disclosure,  applied  to  a  purchase  by  a  solicitor 
from  the  trustee  in  bankruptcy  of  his  client  In 
the  view  which  the  court  took  of  the  evidence, 
the  confidential  relation  of  solicitor  and  client 
existed  between  J.  P.  and  the  bankrupt  at  the 
time  of  the  purchase,  and  J.  P.  had  acquired  a 
knowledge  or  belief  as  to  the  value  of  the  pro- 
perty, which  he  would  have  been  bound  before 
buying  to  communicate -to  L.,  in  case  he  bad 
not  been  bankrupt,  and  which  he  did  not  disclose 
either  to  L.,  or  his  trustee,  or  to  the  solicitor  of  the 
trustee  : — Held,  that  the  trustee  in  bankruptcy 
so  stood  in  the  place  of  the  bankrupt  that  the 
bankrupt's  solicitor  could  not  be  allowed,  as 
against  the  trustee,  an  advantage  obtained  by  hhu 
on  a  purchase  from  the  trustee  by  means  of  the 
knowledge  he  had  gained  while  acting  as 
solicitor  for  the  bankrupt ;  and,  therefore,  that 
the  transaction  could  not  be  supported  in  equity t 
and  that  the  defendants  must  be  declared  to  be 
trustees  of  all  the  advantage  of  the  purchase  for 
L.'s  trustee  in  bankruptcy.  Luddys  Trustee  ?. 
Pmrd,  33  Ch.  D.  500  ;  53  L.  J.,  Ch.  884 ;  5* 
L.  T.  137  ;  35  W.  R.  44— Kay,  J. 

Sale  by  Court — Leave  to  Bid.  ]  —Leave  to  bid 

at  a  sale  by  the  court,  granted  to  a  solicitor  on 
the  record,  relieves  him  from  his  fiduciary  cha- 
racter, and  places  him  in  the  same  position  as  an 
ordinary  purchaser.  Coalts  v.  Botwcll,  11  App. 
Cas.  232  ;  55  L.  J..  Ch.  761  ;  55  L.  T.  32— H.  L 
(E.).    Reversing  33  W.  R.  376— C.  A. 


3.  NOTICE  TO  SOLICITOR,  WHEN  NOTICE 
TO  CLIENT.— See  Notice. 


4.    OTHER  DUTIES  IN  RELATION  TO 

CLIENTS. 

Solicitor  appointing  Son  as  Co-Trustee.]— 0b 
the  retirement  of  one  of  two  trustees  of  a  will* 
the  continuing  trustee,  who  was  the  solicitor  to 
the  trustees,  appointed  his  son,  who  was  his  part- 
ner in  his  business,  to  be  a  new  trustee.  The 
trusts  of  the  will  were  being  administered  by  the 
court : — Held,  that,  without  any  reference  to  the 
personal  fitness  of  the  son,  by  reason  of  his 
position,  the  appointment  was  one  which  the 
court  ought  not  to  approve,  though  it  would 
not  have  been  invalid  if  the  court  had  not  been 
administering  the  trusts.  Norri*,  In  re,  ALU* 
v.  Xorrti,  27  Ch.  D.  333  ;  53  L.  J.,  Ch.  912  ;  51 
L.  T.  593 ;  32  W.  R.  955—  Pearson,  J. 

Preparation  of  Wills.] — It  is  a  failure  of  duty 
on  the  part  of  a  solicitor  to  prepare  a  will  under 
any  circumstances  without  seeing  the  testator, 
and  it  is  utterly  inexcusable  to  do  so  for  an  aged 
testator  on  the  instructions  of  a  person  who  is- 
named  an  executor,  and  is  to  receive  such  a 
benefit  as  a  legacy  of  3,0002.,  with  a  percentage 
on  the  income  of  the  property  to  be  adminis- 
tered by  him.  The  solicitor  in  such  a  case  might 
prepare  a  draft,  or  even  an  engrossment,  but  he 


1741 


SOLICITOR— Liability  of. 


1742 


ought  never  to  part  with  it  until  he  had  seen 
the  testator.  Clery  v.  Barry,  21  L.  R.,  Ir.  162 
-C.  A. 

Voluntary  Deed— No  Power  of  Revocation.]*- 

It  is  the  duty  of  a  solicitor  who  prepares  a 
voluntary  deed  on  behalf  of  a  client  to  distinctly 
call  the  attention  of  the  settlor  to  the  ad  visable- 
ness  of  inserting  a  clause  of  revocation,  and  to 
point  out  the  results  that  might  ensue  from  the 
omission.  Ho  ran  v.  Macmahon,  17  L.  R.,  Ir. 
641— C.  A. 


V.  LIABILITY  OP. 
1.  8UMMARY  JURISDICTION. 

a.  Striking:  off  the  Boll. 

Appeal  to  Court  of  Appeal] — When  the  High 
Court  makes  an  order  ordering  a  solicitor  to  be 
struck  off  the  rolls  for  misconduct,  it  does  so  in 
exercise  of  a  disciplinary  jurisdiction  over  its 
own  officers,  and  not  of  a  jurisdiction  in  any 
criminal  cause  or  matter  within  the  meaning 
of  s.  47  of  the  Judicature  Act,  1873,  and  there- 
tore  an  appeal  lies  from  such  order  to  the  Court 
of  Appeal.  Hardwick,  In  re,  12  Q.  B.  D.  148  ; 
53  L.  J.,  Q.  B.  64  ;  49  L.  T.  584  ;  32  W.  B.  191 
-C.A. 

•'  —  Security  for  Costs.] — A  solicitor  who  ap- 
pealed from  an  order  striking  him  off  the  roll, 
and  directing  an  account  and  payment  of  moneys 
dae  from  him  to  clients  of  his  who  obtained  the 
order,  was  directed  to  give  security  for  costs,  it 
being  shown  that  he  was  in  insolvent  circum- 
stances. Whether  security  for  costs  would  have 
been  Required  if  the  solicitor  had  appealed  only 
against  an  order  striking  him  off  the  roll,  quaere. 
Stnmg,  In  re,  31  Ch.  D.  273  ;  55  L.  J.,  Ch.  506  ; 
64  L.  T.  219  ;  34  W.  R.  420— C.  A. 

Jurisdiction  of  Court  of  Appeal]— From  the 
evidence  given  by  a  solicitor  in  an  action  in  the 
court  of  the  County  Palatine  of  Lancaster,  he 
appeared  to  have  been  guilty  of  gross  miscon- 
duct in  his  character  of  solicitor  as  to  one  of  the 
mortgages  to  which  the  action  related.  The 
plaintiffs  in  the  action  having  appealed,  the  con- 
duct of  the  solicitor  came  under  the  considera- 
tion of  the  Court  of  Appeal,  who  directed  the 
official  solicitor  to  take  proceedings.  The  official 
solicitor  accordingly  moved  in  the  Court  of  Ap- 
peal for  an  order  calling  on  the  solicitor  to  ex- 
plain his  conduct,  or  that  he  might  be  struck  off 
fte  roll :— Held,  that  the  Court  of  Appeal  had 
jurisdiction  to  entertain  the  application,  although 
not  brought  before  them  by  way  of  appeal. 
Whitehead,  In  re,  28  Ch.  D.  614  ;  54  L.  J,,  Ch. 
796  ;  52  L.  T.  703  ;  33  W.  R.  601— C.  A. 

tatnurittg  Solicitor  from  applying  for  Be- 
wwal  of  Certificate.]— The  solicitor  had  not 
taken  out  his  certificate  for  several  years  and 
did  not  take  any  notice  of  the  application.  The 
tout,  under  the  special  tircumstances  of  the 
case,  did  not  think  fit  to  strike  him  off  the  roll 
*r  suspend  him,  but  made  an  order  restraining 
him  from  applying  to  renew  bis  certificate  with- 
out the  leave  of  the  court    lb. 


b.  Attachment. 


Default  in  Payment  subsequent  to  Order 
Striking  off  Boll.]— -Where  a  solicitor  makes 
default  in  payment  of  a  sum  of  money  which 
he  has  been  ordered  to  pay  in  the  character  of 
an  officer  of  the  court,  he  is  not  the  less  liable  to 
an  attachment  because  in  the  interval  between 
the  date  of  the  order  and  the  time  fixed  for  pay- 
ment he  has  been  struck  off  the  roll,  and  has 
ceased  to  be  a  solicitor.  Strong,  In  re,  32  Ch.  D. 
342 ;  55  L.  J.,  Ch.  553 ;  65  L.  T.  3 ;  34  W.  R. 
614  ;  51  J.  P.  6—0.  A. 

Of  the  three  possible  periods  for  ascertaining 
whether  the  person  ordered  to  pay  and  making 
default  held  the  character  of  a  solicitor,  and 
was  as  such  within  the  exception  of  s.  4,  sub-s.  4, 
of  <the  Debtors  Act,  1869,  vul-t(I)  of  the  act 
done ;  (2)  of  the  order  made ;  or  (3)  of  the 
default  committed,  that  to  be  looked  to  is,  if 
not  the  first,  at  the  latest  the  second  period. 
In  cases  of  a  trustee  and  person  acting  in  a 
fiduciary  capacity  (eub-s.  3)  (and  per  Fry,  L,  J., 
in  that  of  a  solicitor  also)  the  period  to  be 
looked  to  is  that  of  the  act  done.    lb. 

Non-compliance  with  Order  for  Payment.] — 
A  solicitor  received  on  behalf  of  a  client  a  sum 
of  3392.,  which  he  paid  into  his  account  with  his 
own  bankers  and  dealt  with  as  Jiis  own  money* 
He  afterwards  forwarded  to  his  client  a  sum  of 
100&,  and  refused  to  pay  the  balance,  on  the 
ground  that  he  had  a  claim  against  an  agent 
whom  his  client  had  employed  to  communicate 
with  him.  Application  having  been  made  to, 
the  Queen's  Bench  Division  to  compel  the 
solicitor  to  pay  the  money,  the  matter  was. 
referred  to  a  master,  who  reported  that  the 
balance  was  due  from  the  solicitor  to  his  client. 
An  order  was  made  by  the  Queen's  Bench  Divi- 
sion, and  also  a  subsequent  order  was  made  at 
chambers,  that  the  solicitor  should  pay  the  balance 
claimed  to  his  client.  These  orders  not  having 
been  complied  with,  an  order  for  the  attachment 
of  the  solicitor  was  made  by  a  judge  at  chambers : 
Held,  that  the  orders  for  the  payment  of  the 
balance  claimed  were  not  merely  in  the  nature  of 
civil  process,  but  were  orders  made  against  the 
solicitor  as  an  officer  of  the  court,  and  that  the 
attachment  was  properly  granted.  Bail,  I*  re 
(8  L.  B.,  C.  P.  104)  explained.  Freeton,  In  re 
(11  Q.  B.  D.  545)  followed.  Dudley,  In  re, 
Monet,  Ex  parte,  12  Q.  B.  D.  44  ;  53  L.  J.,  Q.  B. 
16  ;  49  L.  T.  737  ;  32  W.  R.  264— C.  A. 

Town  Agent  of  Country  Solicitor.]-— A  solicitor, 
the  London  agent  of  a  country  solicitor,  made 
default  in  payment  of  a  sum  ordered  to  be  paid 
by  him  in  an  action  for  an  account  of  his  agency : 
— Held,  that  the  defendant  was  liable  to  im- 
prisonment under  s.  4,  sub-s.  3,  of  the  Debtors 
Act,  1869,  as  a  person  acting  in  a  fiduciary 
capacity,  but  not  liable  under  s.  4,  sub-s.  4,  as  a 
solicitor  ordered  to  pay  in  his  capacity  of  officer 
of  the  court.  Litchfield  v.  Jones,  36  Ch.  D.  530 ; 
57  L.  J.,  Ch.  100 ;  58  L.  T.  20 ;  36  W.  R.  397— 
North,  J. 

Effect  of  Beoeiving  Order  in  Bankruptcy — 
Jurisdiction,]— An  attachment  against  a  soli- 
citor for  his  default  in  the  payment  of  a  sum 
of  money,  which  he  has  been  ordered  to  pay 
in  his  character  of  an  officer  of  the  court,  is 
not  a  merely  civil  process,  but  is  in  its  nature 


1748 


SOLICITOR— Liability  of. 


1744 


punitive  or  disciplinary,  and  therefore  the  fact 
that  a  receiving  order  in  bankruptcy  has  been 
made  against  the  solicitor  is  not  of  itself  a 
sufficient  reason  for  refusing  to  issue  an  attach- 
ment against  him  in  such  a  case ;  but  that  when 
such  an  order  for  the  payment  of  money  has 
been  made  against  a  solicitor  before  the  making 
of  a  receiving  order  against  him,  and  he  has  not 
obeyed  it,  the  court  has,  under  s.  10  of  the  Bank- 
ruptcy Act,  1883,  a  discretion  whether  it  will 
order  an  attachment  to  issue  by  way  of  punish- 
ment to  the  solicitor,  and  it  will  decline  to  do  so 
if  it  is  satisfied  that  the  person  who  asks  for  the 
order  can  derive  no  benefit  from  it,  and  that  the 
making  of  it  will  embarrass  the  bankruptcy  pro- 
ceedings. Sect-  9,  Bub-s.  1,  of  the  Bankruptcy 
Act,  1883,  does  not  apply  to  proceedings  pending 
against  a  debtor  at  the  time  when  a  receiving 
order  is  made  against  him.  On  appeal : — Held, 
that  the  Court  of  Appeal  would  not  interfere 
with  the  discretion  ot  the  court  below.  Wray, 
In  re,  36  Oh.  D.  138  ;  66  L.  J.,  Ch.  1106  ;  67 
L.  T.  606  ;  36  W.  B.  67— C.  A. 


o.  For  Costa. 

Of  Infant  Defendant! — Where  a  writ  of  sum- 
mons is  served  on  an  infant,  and  an  appearance 
entered  for  him  by  a  solicitor,  without  knowledge 
of  his  infancy  and  bona  fide,  and  costs  are  sub- 
sequently incurred  by  the  plaintiff  in  proceed- 
ings in  the  action,  which  became  abortive  by 
reason  of  the  defendant's  infancy : — Held,  that 
although  the  appearance  and  defence  will  be  set 
aside  as  irregular,  the  solicitor  entering  the  appear- 
ance is  not  personally  liable  for  the  costs  thereby 
occasioned  to  the  plaintiff.  Wade  v.  Keefe,  22 
L.  B.,  Ir.  164— Q.  B.  D. 

Hotiee  of  Appeal  — Client  suing  in  forma 
pauperis.]— A  former  solicitor  of  the  plaintiff  in 
an  action,  who  was  suing  in  forma  pauperis, 
served  notice  of  appeal  on  all  the  defendants 
who  had  been  successful  in  the  court  below. 
These  respondents  appeared  by  counsel  on  the 
hearing  of  the  appeal,  but  no  relief  was  then 
asked  as  against  one  of  them.  He  had  not  been 
previously  informed  that  the  appeal  would  not 
be  pressed  against  him,  and  had  incurred  expense 
in  preparing  to  resist  the  appeal : — Held,  that  it 
was  a  proper  case  for  giving  leave  to  the  re- 
spondent to  serve  the  solicitor  with  a  notice  of 
motion  for  an  order  to  Bhow  cause  why  he  should 
not  pay  the  costs  incurred  by  serving  notice  of 
appeal  without  good  cause.  Martinson  v.  Clowes, 
62  L.  T.  706  ;  33  W.  B.  655— C.  A. 

Order  to  repay  Costs  on  Beversal  of  Judg- 
ment. ] — An  action  being  dismissed  at  the  hearing 
with  costs,  a  sum  of  money  which  had  been  paid 
into  court  as  security  for  the  defendants*  costs 
was  ordered  to  be  paid  out  to  the  solicitors  for 
the  defendants  in  part  payment  of  the  de- 
fendants' costs.  The  judgment  was  reversed  by 
the  Court  of  Appeal,  and  the  costs  ordered  to  be 
paid  by  the  defendants.  The  plaintiffs  asked  for 
an  order  against  the  defendants's  solicitors  for 
repayment  by  them  : — Held,  that  the  court  had 
no  jurisdiction  on  the  appeal  to  order  the  de- 
fendants' solicitors  to  refund  the  money,  the 
solicitors  not  being  present.  Nor,  semble,  could 
such  an  order  have  been  made  if  they  had  been 
served  with  notice  of  the  application.    Lydney 


and  Wigpool  Iron  Ore  Company  v.  Bird,  33 
Ch.  D.  85  ;  56  L.  T.  558 ;  34  W.  R.  749-C.  A. 

Of  Proceedings  rendered  Hecessary  by  Solici- 
tor's Conduct.] — See  Slater  v.  Slater  and  Batten 
v.  Wedgwood  Coal  and  Iron  Company,  infra. 

Order  to  Pay— Appeal  without  Leave.]— An 
order  that  the  costs  of  an  application  at  chambers 
on  behalf  of  a  client  shall  be  paid  by  the  solicitor 
personally  cannot  be  costs  left  to  the  discretion 
of  the  court  within  s.  49  of  the  Judicature  Act, 
1873,  unless  the  solicitor  has  been  guilty  of  mis- 
conduct or  negligence,  and,  therefore,  an  appeal 
lies  from  such  order  without  leave  as  to  whether 
there  has  been  such  misconduct  or  negligence. 
Bradford,  In  re,  15  Q.  B.  D.  635  ;  53  L.  J.,  Q.  B. 
65  ;  60  L.  T.  170  ;  32' W.  B.  238— C.  A 


d.  For  Payment  of  Money. 

Relation  of  Solicitor  and  Client— "When  on- 
stituted.] — A  client  agreed  in  writing  to  lend 
his  solicitor  a  sum  of  money  to  enable  him  to 
make  a  purchase  of  land,  but  if  the  purchase 
was  not  completed,  the  money  was  to  be  at  once 
repaid.  The  purchase  was  not  made,  and  the 
money  was  not  returned.  The  client  applied  for 
an  order  for  repayment,  under  the  sununarj 
jurisdiction  of  the  court : — Held,  that,  there 
being  no  relation  of  solicitor  and  client  between 
the  parties  in  respect  of  the  agreement,  no  order 
could  be  made  under  the  summary  jurisdiction 
of  the  court.  Bryant,  In  rt,  50  L.  T.  450— 
V.-C.  B. 

Guarantee  of  Client's  Debt.] — A  solicitor  who 
guarantees  payment  of  a  debt  due  from  his  client 
may,  on  default  of  payment  by  the  client,  be 
ordered  by  the  court  in  a  summary  way  to  pay 
the  amount  himself,  without  any  necessity  on 
the  part  of  the  creditor  to  bring  an  action  against 
the  solicitor.    Pass,  In  re,  35  W.  R.  410— D. 

Order  for  payment  into  Court  on  Tnutw'i 
Default.]— An  order  was  made  on  a  trustee  to 
pay  into  court  interest  found  due  from  him,  and 
the  balance,  beyond  his  costs  to  be  taxed,  of 
capital  money  certified  to  have  come  to  hii 
hands.  The  capital  money  had  been  received  bj 
the  trustee's  solicitors  as  part  of  the  trust  estate. 
The  order  was  made  on  statements  implying 
that  the  trustee,  who  was  totally  unable  to  par, 
was  solvent.  The  trustee  having  made  default 
in  payment  of  the  interest,  the  court  made  an 
order,  notwithstanding  the  former  order,  that 
the  solicitors  should  pay  into  court  the  capital 
come  to  their  hands  with  interest  Staniari. 
Evans,  34  Oh.  D.  470 ;  56  L.  J.,  Ch.  581 ;  66 
L.  T.  87  ;  35  W.  B.  286— North,  J. 

Defence  setting  up  Tender — Payment  out  ef 
Court — Liability  to  refund.] — In  an  action  for 
wrongful  dismissal,  claiming  a  year's  salary  in 
lieu  of  notice,  the  defendant  pleaded  that  the 
plaintiff  was  only  entitled  to  one  month's  notice ; 
or,  in  the  alternative,  three  months  ;  that  before 
action  the  defendant  made  tender  of  three 
months'  salary,  which  the  plaintiff  refused ;  that 
the  defendant  had  paid  the  amount  into  court, 
and  that  it  was  enough  to  satisfy  the  plaintiffs 
claim.  The  request  for  lodgment  in  court  con- 
tained a  statement  that  the  money  was  paid  in 


1745 


SOLICITOR— Liability  of. 


1746 


with  a  defence  setting  up  tender.  The  plaintiffs 
solicitor,  without  obtaining  an  order,  but  on  the 
written  authority  of  the  plaintiff,  took  the 
money  out  of  court,  and  the  plaintiff  proceeded 
with  the  action.  At  the  trial  judgment  was 
giren  for  the  defendant  on  the  ground  that  the 
plaintiff  was  only  entitled  to  one  month's  salary. 
The  defendant  applied  for  an  order  againBt  the 
solicitor  to  refund  so  much  of  the  money  taken 
out  of  court  as  represented  the  difference  between 
one  month's  and  three  months'  salary.  The 
solicitor  had  acted  bona  fide  in  taking  the  money 
out  of  court,  and  had  paid  it  over  to  the  plaintiff 
before  the  application  to  make  him  refund  it  was 
made  .'—Held,  that  although  the  plaintiff  ought 
not  to  have  had  the  money  out  of  court,  because 
a  defence  of  tender  of  the  sum  paid  in  could  not 
be  pleaded  to  a  claim  for  unliquidated  damages, 
yet  under  the  circumstances  the  solicitor  ought 
not  to  be  ordered  to  refund  it.  Davys  v. 
Biehardton,  21  Q.  B.  D.  202  ;  57  L.  J.,  Q.  B.  409  ; 
59  L.  T.  765  ;  36  W.  R.  728— C.  A. 

Money  wrongly  paid  out  of  Court-— Forged 
Affidavit.] — In  an  administration  action  a  fund 
belonging  to  the  children  of  M.  who  should 
attain  twenty-one  or  marry  was  carried  over  to 
"the  account  of  the  issue  or  children  of  M. 
deceased."*   B.,  managing  clerk  of  the  firm  of 
solicitors  conducting  the  action,  knew  that  M. 
died  leaving  one  daughter,  who  would  attain 
twenty-one  in  December,  1886.    He  retained  L. 
as  solicitor  on  behalf  of  the  daughter  to  get  the 
fond  out,  saying  he  had  authority.    A  summons 
was  taken  out  in  chambers,  and  B.  having  pro- 
duced an  affidavit  that  the  daughter  was  of  age, 
an  order  was  made  by  the  chief  clerk  on  the 
28th  January,  1884,  for  transfer  and  payment  to 
the  daughter.    B.  got  the  usual  form  of  power  of 
attorney  from  the  Paymaster-General,  and  it  was 
apparently  executed  by  the  daughter  of  M.  in 
favour  of  L.,  but  in  reality  it  was  forged.    L. 
obtained  payment,  and  after  deducting  one-half 
of  one-sixth  of  the  fund  and  other  expenses, 
pursuant  to  an  agreement  between  him  and  B., 
paid  the  remainder  to  B.  on  an  authority  appa- 
rently signed  by  the  daughter  of  M.,  but  really 
forged.    L.  never  saw  the  daughter  of  M.,  and 
had  no  communication  with  her.    The  daughter 
of  M.  never  saw  B.,  and  never  gave  any  authority 
to  B.    B.  absconded.    In  December,  1886,  when 
the  daughter  of  M.  attained  twenty-one,  she  pre- 
sented a  petition  for  a  certificate  that  the  fund 
might  be  replaced  out  of  the  Consolidated  Fund. 
The  petition  was  served  upon  L. : — Held,  that 
the  order  of  the  28th  January,  1884,  must  be 
discharged,  and  an  order  now  be  made  that  the 
sums,  and  such  further  sums  as  would  have  been 
standing  to  the  credit  of  the  account,  if  the 
order  of  the  28th  January,  1884,  had  not  been 
made,  should  be  respectively  transferred  and 
paid  to  the  petitioner,  and  that  L.  should  within 
two  months  from  the  date  of  the  present  order 
pay  into  court  to  the  account  of  the  Paymaster- 
General  the  said  sums : — Held,  that  such  costs 
of  the  petitioner  as  would  necessarily  have  been 
incurred  if  the  petitioner  had  been  applying  for 
payment  to  her  of  the  funds  which  would  have 
been  standing  to  the  credit  of  the  account  if  the 
order  of  the  28th  January,  1884,  had  not  been 
made,  must  come  out  of  the  fund,  or  be  paid  by 
the  petitioner,  and  L.  would  be  ordered  to  pay 
all  the  other  costs  of  the  proceedings.    Slater  v. 
Slater,  58  L.  T.  149— Kay,  J. 


Kegligence — Omission  to  procure  Investment 
of  Purchase-money— Liability  to  Person  not  a 
Client.] — An  order  was  obtained  by  the  solicitor 
for  the  plaintiff  that  the  purchaser  of  property, 
sold  under  an  order  of  the  court  in  an  action, 
should  pay  his  purchase-money  into  court,  and 
that  the  money  when  paid  in  should  be  invested 
in  Consols.  The  plaintiff  had  the  conduct  of  the 
sale.  The  money  was  paid  into  court  by  the 
purchaser,  but  the  plaintiff's  solicitor  omitted 
to  leave  with  the  paymaster  the  necessary  re- 
quest for  its  investment,  and  consequently  the 
investment  was  not  made.  On  the  further  con- 
sideration of  the  action  it  was  ordered  that  the 
balance  of  the  purchase-money,  after  the  pay- 
ment of  certain  costs,  should  be  paid  to  the 
receiver  in  the  action,  in  part  satisfaction  of  a 
balance  due  to  him.  The  carriage  of  the  order 
was  given  to  the  receiver,  and  he  then  discovered 
that  the  purchase-money  had  not  been  invested. 
He  took  out  a  summons,  asking  that  the  plain- 
tiff's solicitor  might  be  ordered  to  pay  to  him 
the  amount  of  interest  lost  by  the  non-invest- 
ment of  the  purchase-money : — Held,  that  the 
solicitor,  as  the  officer  of  the  court  having  the 
conduct  of  the  sale,  was  responsible  not  only  to 
his  client  but  to  the  court  for  the  due  discharge 
of  his  duty,  and  that  he  must  make  good  to  the 
person  entitled  the  loss  of  interest,  but  that 
he  was  entitled  to  a  set-off  in  respect  of  a  gain 
which  had  resulted  from  a  fall  in  the  price  of 
Consols  between  the  time  when  the  investment 
ought  to  have  been  made  and  the  date  of  the 
order  on  further  consideration,  and  that  this 
liability  could  be  enforced  by  summons  in  the 
action.  The  solicitor  was  ordered  to  pay  the 
costs  of  the  summons,  though  on  allowing  the 
set-off,  it  appeared  that  the  amount  to  be  paid 
by  the  solicitor  would  be  only  5Z.  8*.  6d.  Batten 
v.  Wedgwood  Coal  and  Iron  Company,  31  Ch.  D. 
346  ;  55  L.  J.,  Ch.  396  ;  54  L.  T.  245  ;  34  W.  R. 
228— Pearson,  J. 


e.  Delivery  up  of  Documents. 

In  what  Cases.] — The  court  will  not  sum- 
marily order  a  solicitor  to  deliver  up  a  deed  to 
his  client  unless  it  be  clearly  shown  not  only 
that  his  solicitor  has  no  lien  upon  it,  but  that 
he  is  holding  it  for  the  applicant  alone,  and  as 
his  solicitor.  Cobcldick,  Ex  parte,  12  Q.  B.  D. 
149  ;  49  L.  T.  741 ;  32  W.  R.  239— C.  A. 

Payment  into  Court  of  Security.] — The  court 
has  jurisdiction,  upon  payment  into  court,  or 
giving  security  for  a  sum  sufficient  to  answer 
the  solicitor's  demand,  to  order  before  taxation 
delivery  up  by  a  solicitor  Of  the  client's  papers, 
where  retention  by  the  solicitor  of  the  papers 
on  which  he  claims  a  lien  would  embarrass  the 
client  in  the  prosecution  or  defence  of  pending 
actions.  Quaere  (per  Lindley,  L.  J.),  whether 
the  jurisdiction  is  not  extended  by  Ord.  L.  r.  8. 
Gotland,  In  re,  31  Ch.  D.  296  ;  55  L.  J.,  Ch.  478 ; 
53  L.  T.  921 ;  34  W.  R.  158— C.  A. 


2.    FOR  NEGLIGENCE. 

Restrictive  Covenant.] — A  solicitor  was  con- 
sulted by  a  lessee  of  premises  with  reference  to 
the  building  of  a  wall,  to  the  erection  of  which 


1747 


SOLICITOR— Liability  of. 


1748 


on  the  demised  premises  his  lessor  objected. 
The  lease  was  shown  to  the  solicitor.  The 
solicitor  made  no  inquiries  as  to  whether  there 
was  any  objection  to  building  the  wall,  other 
than  what  might  be  contained  in  the  lease. 
The  land  was  subject  to  a  restrictive  covenant 
against  any  such  erection  in  favour  of  the 
original  vendors  of  the  freehold,  and  the  wall 
after  erection  had  to  be  pulled  down : — Held, 
that  the  solicitor  had  been  guilty  of  no  negli- 
gence. Pitman  v.  Francis,  1  C.  &  E.  355 — 
Mathew,  J. 

<  Mortgage— Insufficient  Security— Statute  of 
Limitations.] — A  mortgage  was  made  through  a 
solicitor  and  proved  to  be  an  insufficient  security. 
More  than  six  years  afterwards  an  action  was 
brought  by  the  client  against  the  executor  of  the 
solicitor  claiming  damages  as  for  the  wilful 
default  of  the  solicitor : — Held,  on  the  facts, 
that,  the  client  had  approved  of  the  mortgage, 
and  that  the  solicitor  merely  did  the  legal  part 
of  the  business  and  was  not  in  the  position  of 
trustee,  and  therefore  that  the  Statute  of  Limi- 
tations applied.  Booby  v.  Watson,  39  Ch.  D. 
178 ;  57  L.  J.,  Ch.  865  ;  68  L.  T.  943  ;  36  W.  R. 
764— Kekewich,  J. 

•  A  solicitor  in  advancing  money  on  mortgage 
may  be  employed,  (1)  to  invest  in  a  particular 
mortgage ;  (2)  to  find  securities  to  be  approved 
by  the  client  and  then  invest  the  money ;  (3) 
to  find  securities  and  invest  the  money,  the 
client  taking  little  or  no  part  in  the  business. 
In  an  action  for  negligence  against  the  solicitors, 
the  Statute  of  Limitations  is  a  good  defence  in 
the  first  case  and  also  in  the  second  case  if  the 
client  has  approved  of  the  mortgage,  no  relation 
of  trustee  and  cestui  que  trust  then  existing 
between  them.    lb. 


Misrepresentation  of  Adequacy  of  Se- 


curity— Accounts.] — P.,  who  was  a  solicitor,  had 
acted  as  agent  for  the  late  husband  of  M.  in 
several  matters  of  business,  including  invest- 
ments of  money.  M.  took  out  administration  to 
her  husband,  and  placed  the  administration  of 
his  assets  in  the  hands  of  P.  as  her  agent.  P. 
collected  the  personal  estate,  and  received  large 
sums  on  foot  or  it.  He  acted  not  only  as  solicitor, 
but  as  general  agent  for  M.,  and  furnished  her 
with  accounts  of  his  receipts  and  disbursements. 
While  acting  as  agent  for  M.in  1871,  P.  invested 
1,500/.  on  mortgage  to  H.,  upon  security  which 
proved  to  be  valueless.  There  was  no  evidence 
that  P.  was  authorised  to  lend  upon  this  or  on 
any  special  security.  P.  acted  as  solicitor  both 
for  M.  and  for  H.  in  the  matter  of  the  loan. 
The  interest  was  paid  for  some  years  on  the 
1,6002.,  but  afterwards  H.  ceased  to  pay  any 
interest.  Proceedings  were  taken  and  expenses 
were  incurred  by  M.  in  endeavouring  to  realise 
the  security,  which  proved  to  be  fruitless.  P. 
having  died,  proceedings  were  taken  by  his  ad- 
ministratrix to  administer  his  real  and  personal 
estate  in  the  Chancery  Division.  M.  in  this 
action  claimed  as. creditor,  the  1,5002.  and  arrears 
of  interest  thereon,  and  the  costs  of  the  pro- 
ceedings to  realise  the  security ;  first,  as  for 
damages  sustained  by  negligence  on  the  part  of 
P.  as  her  solicitor  in  the  investment  of  the 
money  ;  secondly,  for  damages  for  false  repre- 
sentations by  P.  that  the  security  was  adequate  ; 
thirdly,  as  for  money  due  by  P.  on  foot  of  sums 
received  by  him  for  her  use,  and  for  which  he 


undertook  to  find  securities  as  her  agent  and 
trustee*  and  which  were  unaccounted  for  by  htm ; 
and  of  which  and  all  other  dealings  between  her 
and  P.,  as  her  agent  and  trustee,  she  sought  an 
account : — Held,  that  M.  waa  entitled  to  have  an 
account  taken  of  the  dealings  between  henelf 
and  P.,  as  between  principal  and  agent :  that 
there  was  a  fiduciary  relation  between  P.  and  M. 
which  precluded  the  personal  representative  of 
P.  from  relying  on  the  Statute  of  Limitations  as 
an  answer  to  M.'s  claim,  but  that  the  claim  put 
forward  by  M.  for  damages  for  negligence  and 
for  misrepresentation  of  the  adequacy  of  the 
security  was  not  now  open  to  M.  Power  v. 
Power,  13  L.  R.,  Ir.  281— V.  C. 

Where  there  is  not  merely  an  agency  between 
the  parties,  but  also  a  superadded  fiduciary  rela- 
tion, the  remedy  of  the  principal,  who  is  then 
also  the  cestui  que  trust,  is  not  one  arising  merely 
from  contract,  or  duty  springing  from  such  con- 
tract, where  a  common  law  liability  would  alone 
exist,  but  is  one  to  be  dealt  with  on  the  equitable 
relation  of  trustee  and  cestui  que  trust.    lb. 

Liability  to  Co-Trustee.] — In  an  action 


against  trustees,  the  court  held  that  the  invest- 
ments were  improper ;  that  the  trustees  had 
been  guilty  of  negligence  in  not  making  inquiries 
as  to  the  particulars,  and  in  not  giving  proper 
instructions  to  the  valuers,  And  in  acting  upon 
valuations  which  under  the  circumstances  they 
ought  not  to  have  acted  upon,  and  they  were 
jointly  and  severally  liable  for  the  money  lost, 
One  of  the  trustees,  A.,  was  a  solicitor,  autho- 
rised to  make  professional  charges  for  woik 
done  for  the  trust.  The  other  was  the  widow  of 
the  testator,  and  the  tenant  for  life  under  his 
will  of  the  trust  funds.  A.  took  the  more  active 
part  in  making  the  investments,  and  was  paid 
costs  for  his  professional  work,  charging  scale 
fees  both  for  negotiating  the  loans,  deducing  the 
title,  and  preparing  and  completing  the  mort- 
gages ;  and  he  did  not,  in  the  opinion  of  the 
court,  communicate  what  he  did  to  his  co-trustee 
in  such  a  way  as  to  enable  her  to  exercise  her 
judgment  upon  the  investments,  and  make  them 
her  acts  as  well  as  his  own  : — Held,  that  A.  bad 
undertaken  to  find  proper  investments,  and  that 
the  widow  had  joined  in  advancing  the  fond  on 
the  faith  that  the  investments  were  proper  ones 
which  had  been  looked  into  by  A.,  as  solicitor ; 
that  she  had  been  misled  by  him,  and  he  had 
been  guilty  of  negligence  in  his  duty  as  a  solici- 
tor ;  and  that,  as  between  A.  and  the  widow,  A. 
was  primarily  liable  for  the  breach  of  trust. 
Partington,  In  re,  Partington  v.  Allen,  67  L.  T. 
654— Stirling,  J. 

Deed  settled  by  Court.]— A  solicitor  may  be 
guilty  of  such  negligence  in  respect  to  a  deed 
settled  in  chambers  as  to  make  him  liable  to  his 
client,  notwithstanding  that  the  deed  professes 
to  be  a  deed  settled  by  the  court.  Stanford  v. 
Robert*,  26  Ch.  D.  155  ;  53  L.  J.,  Ch.  858 ;  50 
L.  T.  147  ;  32  W.  R.  404  ;  48  J.  P.  692— Kay,  J. 

Power  of  Master  to  disallow  Costs  earn* 

by.] — See  Massey  and  Carey,  In  re,  post,  col 
1776. 


3.    IN  OTHER  CASES. 

Undertaking  as  to  Costs.] —Where  the  soli- 
citors of  the  promoters  of  an  act  of  parlianwntt 


r 


1749 


SOLICITOR— Costa. 


1750 


whereby  *  company  is  created  and  empowered  to 
raise  capital  and  carry  oat  works,  and,  if  they 
so  resolve,  to  raise  separate  capital  for  and  carry 
oat  separately  certain  portions  of  such  works  as 
a  separate  undertaking,  agree  to  pay  certain 
claims  oat  of  the  first  capital  raised  by  the  com- 
pany and  the  company  duly  raise  capital  for  the 
separate  undertaking  and  none  other,  the  soli- 
citors are  not  liable  under  the  agreement.  Allan 
v.  RegenVs  Canal,  (My  and  Docks  Railway,  54 
L.  J.,  Q.  B.  201— Mathcw,  J.    Reversed  in  C.  A. 

liability  to  account — Treasury  Prosecution  by 
Local  Solicitor!.]  — .  When  local  solicitors  are 
retained  by  the  Treasury ,  to  conduct  prosecutions 
on  their  behalf,  such  local  solicitors  are  agents 
for  the  Treasury,  and  are  therefore  bound  to  ac- 
count to  the  Treasury  for  any  sums  of  money 
received  in  respect  of  costs,  and  to  pay  over  to 
the  Treasury  the  difference  between  the  sums  so 
received  as  costs  and  the  sum  allowed  them  on 
taxation.    Parkinson,  In  re,  56  L.  T.  715 — D. 

Constructive  Trustee.]— A  solicitor  can- 


not be  made  liable  as  a  constructive  trustee  to 
account  for  money  paid  to  him  in  respect  of  his 
costs,  unless  he  can  be  brought  within  the 
doctrine  with  reference  to  other  strangers  who 
are  not  themselves  trustees,  but  who  are  liable  in 
a  proper  case  to  be  made  to  account  as  con- 
structive trustees,  and  a  stranger  receiving 
money  from  the  trustee  which  he  knows  to  be 
part  of  the  trust  estate  is  not  liable  as  a  con- 
structive trustee  unless  facts  are  brought  home 
to  him  which  show  that  to  his  knowledge  the 
money  is  being  applied  in  a  manner  inconsistent 
with  the  trust,  so  that  it  must  be  made  out  that 
the  solicitor  was  either  party  to  a  fraud  or  party 
to  a  breach  of  trust  on  the  part  of  the  trustee. 
Blundell,  In  re,  Blundell  v.  Blundell,  40  Ch.  D. 
370 ;  67  L.  J.,  Ch.  780 ;  58  L.  T.  933  ;  36  W.  R. 
779— Stirling,  J'. 

Liability   to    Company  as  Promoter.] — See 
Great  Wheal  Polgooth,  In  re,  ante,  col.  355. 

Statute  of  Limitations— Trustee.]— See  Limi- 
tations, Statute  of,  I.,  1. 

Joinder   of  for    Purposes    of  Discovery  or 

Coats.] — The  court  will  not  allow  the  joinder  of 
solicitors  or  others  as  defendants  against  whom 
no  farther  relief  is  sought  beyond  discovery  or 

Siyment  of  costs.    Burstall  v.  B&yfus,  26  Ch. 
L  35  ;  53  L.  J.,  Ch.  565  ;  50  L.  T.  542  ;  32  W. 
R.  418— C.  A. 


4.     WHAT  ACTS   OF  PARTNER  BINDING 

ON  FIRM. 

-  Negligence  and  Fraud.]— In  May,  1869,  P.,  a 
member  of  a  firm  of  solicitors,  suggested  to  the 
plaintiff,  as  an  investment  for  a  sum  of  3,557/.  to 
which  he  was  entitled  in  court,  a  mortgage  of  a 
leasehold  property  at  E.,  and  made  certain  mis- 
representations with  respect  to  the  property.  In 
July  the  money  was  paid  out  of  court  to  the  firm 
on  behalf  of  the  plaintiff,  and  the  balance,  after 
certain  deductions  for  the  costs  of  payment  out, 
was  shortly  afterwards  paid  away  by  two  cheques 
signed  by  the  firm  for  332.  and  3,4002.  respec- 
tively. P.  sent  the  33/.  to  the  plaintiff,  and  in- 
formed him  that  the  3,400/  was  invested  upon 
the  security  at  E.  as  arranged,  and  in  August, 


1869,  he  sent  to  the  plaintiff  a  memorandum  of 
deposit  to  the  effect  that  he  held  the*  title-deeds, 
as  solicitor  for  and  on  behalf  of  the  plaintiff  to 
secure  3,400/.  In  1875  P.  executed  a  legal  mort- 
gage of  the  same  property  to  H.  without  dis- 
closing the  plaintiff  s  equitable  charge.  The  pro- 
perty was  insufficient  to  satisfy  both  charges. 
P.  continued  to  pay  interest  'to  the  plaintiff  on 
his  investment  until .  1881,  when  his  fraud  was 
discovered  .and  he  absconded  The  firm  did  not 
make  any  charge  to  the  plaintiff  for  investment, 
but  their  bill  of  costs  was  limited  to  the  costs  inci- 
dental to  the  payment  of  the  money  out  of  court* 
In  1884  the  plaintiff  brought  an  action  against  the-  • 
firm  to  recover  from  them  the  3,400/.  lost  by  P. 'a 
fraud : — Held,  first,  that  the  firm  was  guilty  of 
negligence,  in  the  transactions  of  1869,  in  .not 
seeing  that  the  plaintiff's  money  was  invested 
upon  a  proper  mortgage,  but  that  that  claim  was 
barred  by  the  statute  ;  secondly,  that  they  were, 
not  liable  ior  P. 'a  misrepresentations,  there  being 
no  sufficient  proof  that  the  plaintiff  relied  upon 
them  ;  thirdly,  that  they  were  not  liable  for  P/s 
fraud  in  1875,  as  it  was  not  committed  in  the 
course  of  the  firm's  business.  The  fact  that  a 
representation  is  by  its  nature  calculated  to 
induce  a  person  to  enter  into  a  contract  does  not 
raise  a  presumption  of  law  that  he  relied  upon 
such  » representation.  Hughes  v,  Twisden,  5& 
L.  J.,  Ch.  481  ;  54  L.  T.  670 ;  34  W.  R.  498— 
North,  J. 

Deposit  of  Bonds — Beope  of  Business.] — Trus- 
tees under  a  will  deposited  certain  bonds  payable 
to  bearer  with  P.,  a  member  of  the  firm  of  solici- 
tors who  were  acting  for  the  estate.  His  partners 
had  no  knowledge  of  this,  but  letters  referring  to> 
the  bonds  were  copied  in  the  letter-book  of  the 
firm  and  were  charged  for  in  the  bill  of  costs  of 
the  firm,  and  the  bonds  were  included  in  a  state* 
ment  of  account  which  the  firm  made  out  for  tho 
trustees.  P.  paid  some  of  the  interest  of  the 
bonds  by  cheques  of  the  firm,  but  on  each  oc- 
casion recouped  the  firm  by  a  cheque  for  the 
same  amount  on  his  private  account.  P.  mis- 
appropriated the  bonds  :— Held,  that  the 
cheques,  letters  and  entries  were  too  ambiguous, 
to  affect  the  other  partners  with  acquiescence  in 
P.  having  the  custody  of  the  bonds  as  part  of 
the  partnership  business,  and  that  they  could  not 
be  held  liable  for  their  misappropriation.  Har~ 
man  v.  Johnson  (2  E.  &  B.  61)  and  Dundonald 
(Earl  of  )  v.  Masterman  (7  L.  R.  Eq.  504)  con- 
sidered. Cleather  v.  Twisden,  28  Ch.  D.  340  ;. 
54  L.  J.,  Ch.  408  ;  52  L.  T.  330 ;  33  W.  R.  435— 
C.  A. 


VI.  COSTS. 
1.  BILL  OF  COSTS. 

a.    Delivery  oil 

Unsigned  Bill— Alteration  after  Delivery.]— 
A  solicitor  cannot,  after  delivery  of  a  bill  of 
costs,  and  objection  taken  to  the  amounts  of  the 
charges  therein  contained,  even  though  the  bill- 
be  unsigned,  withdraw  the  bill  from  taxation, 
and  substitute  another  in  which  the  charges  are 
reduced.  Jones,  In  re,  Xing,  Urn  parte,  54  L.  T.. 
648— D. 

Lump   Sam   in   Bill   Delivered— Subsequent 


1751 


SOLICITOR— Costs. 


1752 


Alteration.]  —  Solicitors  having  brought  in, 
under  an  order  lor  taxation,  a  bill  of  costs 
containing  an  item  in  a  lump  of  1,0002.  for 
the  costs,  charges,  and  expenses  of  an  action,  it 
was  held  that  the  agreement  to  pay  this  sum 
was  invalid,  because  it  was  not  in  writing : — 
Held,  that  they  were  entitled  to  bring  in  for 
taxation  a  bill  containing  the  particulars  of  these 
charges,  so  long  as  the  charges  did  not  exceed 
1,000/.    Russell,  In  re,  55  L.  T.  71— C.  A. 

Condition  for  Withdrawal— Delivery  of  Second 
Sill.] — A  solicitor  may,  when  sending  in  his  bill 
of  costs  to  his  client,  reserve  to  himself  the  right 
to  withdraw  or  alter  it  on  condition,  provided 
the  condition  is  fully  and  clearly  stated  to  the 
client ;  but  if  the  solicitor  has  sent  in  his  bill 
without  any  condition,  or  with  a  condition  which 
he  could  not  fairly  impose,  he  cannot  afterwards 
withdraw  it  or  send  in  an  amended  bill.  Thomp- 
son, In  re,  30  Ch.  D.  441 ;  55  L.  J.,  Ch.  138  ;  53 
L.  T.  479  ;  34  W.  R.  112— C.  A. 

A  firm  of  solicitors,  on  being  pressed  by  their 
clients  to  send  in  their  bill  of  costs,  delivered  a 
bill  accompanied  by  a  letter  saying  that  there 
were  certain  charges  which,  owing  to  haste,  had 
not  been  included  in  the  bill,  but  that  they  were 
willing  to  accept  a  stated  sum  in  full  discharge, 
though,  if  such  sum  was  not  paid  within  eight 
<Lays,  they  reserved  to  themselves  the  right  to 
withdraw  the  bill  and  deliver  another.  The 
clients,  however,  insisted  on  being  furnished 
with  the  particulars  of  further  charges,  and  the 
solicitors  wrote  withdrawing  the  bill.  The 
clients  then  obtained  a  common  order  for  taxa- 
tion of  that  bill,  and  for  delivery  and  taxation 
of  a  further  bill.  On  motion  by  the  solicitors, 
Bacon,  V.-C,  discharged  the  common  order  on 
the  ground  that  no  bill  had  been  "  delivered  " 
within  the  meaning  of  s.  37  of  the  Solicitors  Act, 
6  &  7  Vict.  c.  73  ;  but  ordered  the  solicitors  to 
deliver  a  bill  within  fourteen  days,  such  bill  to 
be  taxed.  The  solicitors,  in  pursuance  of  that 
order,  delivered  a  second  bill,  but  of  a  con- 
siderably less  amount  than  the  first,  whereupon 
the  clients  appealed  to  reverse  that  order  and  to 
have  it  declared  that  the  bill  to  be  taxed  was 
that  first  delivered  : — Held,  discharging  the  last- 
mentioned  order,  that  the  first  bill  was  condi- 
tional, but  that  the  condition  was  one  which  a 
solicitor  could  not  impose  on  his  client,  and  that 
therefore  the  original  common  order  for  taxation 
must  stand.    lb. 

To  Third  Parties— Withdrawal.]— On  a  sale 
of  mortgaged  property  by  the  mortgagors,  the 
mortgagees'  solicitors  rendered  services  for  which 
they  were  entitled  to  be  paid  by  the  mortgagors, 
and  the  mortgagors'  solicitors,  acting  on  behalf 
of  their  clients,  undertook  to  pay  those  charges. 
In  the  course  of  a  correspondence  between  the 
solicitors,  the  mortgagees  solicitors  mentioned  a 
lump  sum  as  the  amount  of  their  costs,  and 
stated  that  their  bill  was  not  yet  drafted,  and 
they  wished  to  know  whether  details  were  re- 
quired. The  mortgagors'  solicitors  requested  to 
have  details,  and  the  mortgagees1  solicitors  then 
sent  their  bill  to  them,  and  added  that  if  further 
details  were  required  they  must  furnish  them. 
The  parties  could  not  agree  as  to  the  amount  to  be 
paid,  and  the  mortgagors  presented  a  petition  for 
taxation  : — Held,  that  the  mortgagors'  solicitors 
were  acting  within  the  scope  of  their  employ- 
ment in  obtaining  the  bill,  and  it  could  not  now 


be  withdrawn  on  the  ground  that  it  had  been 
improperly  delivered  in  being  sent  to  the  solici- 
tors, and  not  to  the  clients ;  that  it  was  not 
necessary  that  the  bill  should  be  delivered  to 
the  mortgagees  to  enable  the  mortgagors  to  tax 
it ;  that  the  document  delivered  was  in  fact  a 
bill,  and  the  details  which  were  offered  were  not 
necessary  to  complete  it,  but  might  have  been 
given  on  the  taxation.  Kelloch,  In  *r,  66  L.  T. 
887  ;  35  W.  R.  695— Stirling,  J. 

Power  of  Court  to  order.]— Under  s.  396  of 
the  Victorian  Common  Law  Procedure  Act,  the 
court  has  power  to  order  delivery  of  his  bill  bj 
an  attorney,  whether  or  not  it  has  been  paid, 
and  whether  or  not  it  is  one  which  it  would  nave 
jurisdiction  to  refer  to  taxation.  [See  6  &  7 
Vict.  c.  73,  ss.  37  &  41.1  JDuffett  v.  MeEtoy,  10 
App.  Cas.  300  ;  64  L.  J.,  P.  C.  25  ;  52  L.  T.  633 
—P.  C. 

Busmen   not   Transacted  in  Court- 


Jurisdiction.]— The  jurisdiction  given  by  a,  37  of 
the  Solicitors  Act,  1843,  to  order  delivery  of  a 
solicitor's  bill  of  costs  where  no  part  of  the 
business  charged  for  has  been  transacted  in  any 
court  of  law  or  equity,  was  given  to  the  Lord 
Chancellor  and  Master  of  the  Rolls  as  Judges  of 
the  Court  of  Chancery,  and  was  transferred  to 
the  High  Court  of  Justice  by  s.  16  of  the  Judica- 
ture Act,  1873.  The  Judges  of  the  Queen's  Bench 
Division,  therefore  have  jurisdiction  to  order 
delivery  of  a  bill  of  costs  in  such  a  case ;  though 
the  application  for  delivery  ought  to  be  made 
in  the  Chancery  Division  (Lord  Esher,  M.R, 
dissenting).  S.  37  of  the  Solicitors  Act,  1843, 
gave  the  jurisdiction  to  the  Lord  Chancellor  and 
the  Master  of  the  Bolls,  not  as  judges  of  the 
Court  of  Chancery,  but  in  respect  of  their  in- 
dependent offices  as  Lord  Chancellor  and  Master 
of  the  Rolls,  and  that  jurisdiction  has  not  been 
transferred  by  any  subsequent  legislation.  By 
Lord  Esher,  M.R.  Pollard,  In  re,  20  Q.  R  D. 
656 ;  57  L.  J.,  Q.  B.  273  ;  59  L.  T.  96 ;  36  W.  R 
615— C.  A.     Reversing  52  J.  P.  85— D. 


b.    Contents  of. 

Scandalous  Matter.]— The  general  jurisdiction 
of  the  court  to  prevent  proceedings  before  it 
being  made  the  vehicle  of  scandal  or  impertin- 
ence extends  to  a  bill  of  costs  delivered,  and, 
accordingly,  entries  in  a  bill  of  costs  which 
contain  scandalous  matter  will  be  ordered  to  be 
struck  out.  Miller,  In  re,  French,  In  re,  Lev* 
v.  Hills,  54  L.  J.,  Ch.  205 ;  51  L.  T.  853 ;  33 
W.  R.  210— Kay,  J. 

Substantial  Part  improperly  described.]  — 
Where  a  substantial  part  of  a  bill  of  costs  is 
improperly  set  out  and  described,  the  whole  bill 
is  not  bad,  but  the  solicitor  can  recover  only 
those  items  that  are  properly  described.  Where, 
therefore,  in  a  bill  of  costs  for  51/.  16*.  6£,  a 
lump  charge  of  38J.  10*.  was  made  for  a  number 
of  items  lumped  together,  and  the  remaining 
items,  amounting  to  13/.  6*.  6rf.,  were  properly 
described,  it  was  held  that  the  solicitor  could 
recover  upon  those  items  that  were  properly 
described.  Dicta  in  Haigh  v.  Ousey  (7  E.  *  R 
578)  followed.  Blah*  v.  Hummrll,  51  L  T.  430; 
1  C.  &  B.  345— Denman,  J. 


r 


1758 


SOLICITOR— Costs. 


1754 


o.   Agreements  as  to  Costa. 


Verbal. ] — Since  the  Attorney  and  Solicitors 
Act,  1870,  a  verbal  agreement  by  a  client  to  pay 
his  solicitor  a  lump  sum  in  discharge  of  past 
costs  is  not  binding  on  the  client.  Russell,  In 
re,  30  Ch.  D.  114  ;  54  L.  J.,  Ch.  948  ;  52  L.  T. 
794  ;  33  W.  R.  816— Kay,  J. 

Fair  and  Seasonable.  ]— A  solicitor  agreed  to 
conduct  certain  bankruptcy  proceedings  on  the 
terms  that  his  costs  should  not  exceed  10/.    In 
the  course  of  the  proceedings  his  clients  left  him 
and  employed  other  solicitors,  and  he  sent  in  a 
bill  of  costs  for  a  larger  amount  than  10Z.    The  ■ 
county  court  judge  sitting  in  bankruptcy  declared  j 
the  agreement  to  be  void,  because  it  did  not ' 
contain  a  provision  that  the  solicitor  originally  j 
employed  might  conduct  the  bankruptcy  pro- 1 
ceedings  to  an  end  : — Held,  that  the  order  was 
wrong  on  the  ground  that  the  agreement  was 
fair  and  reasonable,  and  that  the  solicitor  could 
have    gained   no   advantage    if    he   had   been 
allowed  to  prosecute  the  proceedings  in  bank- 
ruptcy to  a  conclusion,  since  under  no  circum- 
stances could  he  have  obtained  costs  beyond  the 
amount  of  10J.  out  of  the  estate.    Payton,  Ex 
parte,  Owen,  In  re,  52  L.  T.  628  ;  2  M.  B.  R.  87 
— D. 


d.  Interest  on. 

Disbursements  and  Costs  —  Demand  from 
Client.]— By  General  Ord.  VII.  under  the 
Solicitors*  Remuneration  Act,  1881  (44  &  45 
Vict,  a  44),  s.  5,  the  interest  which  a  solicitor 
is  entitled  to  recover  under  the  order  on  the 
amount  due  on  business  transacted  by  him  is 
not  to  commence  till  the  amount  due  is 
ascertained,  either  by  agreement  or  taxation — 
and  it  is  provided  that  a  solicitor  may  charge 
interest  at  4  per  cent,  per  annum  on  his 
disbursements  and  costs,  whether  by  scale  or 
otherwise,  from  the  expiration  of  one  month 
from  demand  from  the  client.  A  solicitor 
delivered  his  bill  to  a  client  without  claiming 
interest.  The  bill  was  taxed,  and  the  client  paid 
the  amount  allowed  on  taxation.  On  such  amount 
being  paid  the  solicitor  claimed  interest  thereon 
at  4  per  cent,  from  one  month  from  the  date  of 
the  delivery  of  the  bill :— :Held,  that  the  solicitor 
was  entitled  to  such  interest.  Blair  v.  Cordner, 
19  Q.  B.  D.  516  ;  56  L.  J.,  Q.  B.  642 ;  36  W.  R. 
109— D. 


Appropriation  of  Payment.] — See  liar- 


rison,  In  re,  post,  col.  1781. 


e.  Taxation  of. 

i.    Who  Entitled  to  Order. 

Ex  parte — Special  Agreement — Ron-profes- 
sional Work.] — Where  an  agreement  has  been 
made  for  the  remuneration  of  a  solicitor,  and 
the  solicitor  alleges  that  the  remuneration  was 
for  non-professional  work,  the  person  chargeable 
cannot  obtain  the  ex  parte  order  for  the  delivery 
and  taxation  of  the  bill  of  costs.  The  Solicitors' 
Remuneration  Act,  1881,  s.  8,  has  made  no 
difference  in  the  practice  in  this  respect  Inder- 
wck,  In  re,  25  Ch.  D.  279  ;  54  L.  J.,  Ch.  72  ;  50 
L.  T.  221 ;  32  W.  R.  641— C.  A. 


Solicitor  to  Guardians— Taxation  by  Clerk  of 
the  Peace.] — When  a  solicitor  is  employed  by 
the  guardians  of  the  poor,  the  taxation  of  his. 
bill  of  costs  by  the  clerk  of  the  peace  under 
the  Poor  Law  Amendment  Act,  1844,  is  not 
final  and  conclusive  against  him,  and  he  is 
entitled  to  an  order  for  taxation  as  between 
solicitor  and  client,  under  the  Solicitors  Act, 
1843.  Southampton  Guardians  v.  Bell,  21 
Q.  B.  D.  297 ;  59  L.  T.  181  ;  36  W.  R.  924  ;  52 
J.  p.  567— D. 

Trustee  in  Bankruptcy.] —The  trustee  in 
bankruptcy  of  a  mortgagor  is  entitled  to  an 
order  to  tax,  under  6  and  7  Vict.  c.  73,  the  bill 
of  costs  of  the  solicitor  of  the  mortgagee 
incurred  in  selling  the  property  under  a  power 
of  sale.  Marsh,  In  re  (15  Q.  B.  D.  340) 
distinguished.  Ailing  ham,  In  re,  32  Ch.  D.  36  ; 
55  L.  J.,  Ch.  800  ;  54  L.  T.  905  ;  34  W.  R.  619— 
C.  A. 

"  Assignee  "  of  Costs.]— Whether  an  assignee 
of  costs  due  to  a  solicitor  is  such  an  **  assignee  " 
of  the  solicitor  as  is,  under  s.  37  of  the  act  6  &  7 
Vict  c.  73,  entitled  to  obtain  a  taxation  of  the 
costs,  quaere.  Ward,  In  re,  28  Ch.  D.  719  ;  54 
L.  J.,  Ch.  508  ;  33  W.  R.  783— Pearson,  J. 


ii.  Practice  Generally. 

Petitioner  out  of  Jurisdiction.]— A  petitioner,, 
in  a  matter  under  the  Solicitors  Act  (12  &  13 
Vict.  c.  53),  resident  out  of  the  jurisdiction, 
was  ordered  to  give  security  for  the  costs  in  the 
matter,  and  a  balance  claimed  to  "be  due  to  the 
respondent.  Cornwall,  In  re,  15  L.  R.,  Ir.  144 
— M.  R. 

Summons— Service  out  of  the  Jurisdiction.  ] — 
A  summons  to  tax  a  bill  of  costs,  not  being  a 
writ  of  summons  within  the  meaning  of  Ord.  XI. 
r.  1,  leave  to  serve  it  out  of  the  jurisdiction  will 
not  be  granted.  Brandon,  Ex  parte,  Bouron, 
In  re,  54  L.  T.  128  ;  34  W.  R.  352— D. 

Petition  —  Signature.]  —  London  solicitors 
acting  for  country  solicitors,  duly  authorised, 
obtained  an  order  for  taxation  of  costs.  The 
names  of  the  London  solicitors  were  indorsed  on 
the  petition  for  taxation  as  principals.  The 
order  for  taxation  was  discharged  on  the  motion 
of  the  client,  without  costs.  Scholes,  In  re, 
32  Ch.  D.  245  ;  55  L.  J.,  Ch.  626 ;  54  L.  T.  466  ; 
34  W.  R.  515— Pearson,  J. 

Petition  or  Summons.] — The  application  by 
mortgagors  to  tax  the  bill  of  the  mortgagees* 
solicitors  ought  to  be  made  by  summons,  and 
not  by  petition,  but  it  can  be  dealt  with  under 
Order  LXX.  r.  1,  on  the  terms  that  the  petitioners 
should  pay  the  difference  between  the  costs  of  a 
petition  and  those  of  an  adjourned  summons. 
Kellock,  In  re,  56  L.  T.  887 ;  35  W.  R.  695— 
Stirling,  J. 

Common  Order  or  Special  Order.] — Where 
solicitors  delivered  a  first  bill  which  was  after- 
wards withdrawn,  the  clients  should,  instead  of 
obtaining  the  common  order  to  tax,  obtain  a 
special  order  on  petition  raising  the  question  as 


1755 


SOLICITOR— Costs. 


1756 


to  the  right  of  the  solicitors  to  withdraw  their 
bill.  Thompson,  In  re,  30  Ch.  D.  441  ;  55  L.  J., 
Ch.  138  ;  53  L.  T.  479  ;  34  W.  R.  112— C.  A. 

Common  Order — Retainer.] — The  question  of 
retainer  can  be  raised  on  a  common  order  to  tax 
•as  to  particular  items  or  heads ;  but  not  as  to 
the  whole  of  a  bill  of  costs.  A  bill  of  costs  was 
divided  into  general  costs  and  costs  relating  to 
a  particular  matter.  On  a  common  order  to 
tax  : — Held,  that  the  whole  of  the  latter,  except 
two  small  items,  having  been  incurred  without 
authority,  were  properly  taxed  off.  Herbert, 
In  n\  34  Ch.  D.  504  ;  66*L.  J.,  Ch.  719  ;  56L.T. 
522  ;  35  W.  R.  606-North,  J. 


Obtained    bj   Solicitor  —  Retainer.]— 


Where  a  client  obtains  the  common  ex  parte 
order  for  the  taxation  of  a  solicitor's  bill  of 
costs,  he  cannot  dispute  his  retainer  to  the 
extent  of  the  whole  of  the  bill,  though  he  may 
do  so  in  respect  of  particular  items  in  the  bill, 
the  practice  being  to  require  the  client  on  his 
application  for  the  order  to  make  an  admission 
of  the  retainer ;  but  where  a  solicitor  obtains 
the  common  ex  parte  order  the  client  is  not 
bound  by  the  allegation  of  retainer  contained 
in  the  petition,  and  consequently  may  object  to 
■every  item  in  the  bill  on  the  ground  of  there 
having  been  no  retainer.  Consequently  it  is  no 
objection  to  the  common  order  when  obtained 
by  a  solicitor  that  he  knew  that  the  clients 
-disputed  his  retainer  as  to  the  whole  bill.  Jones, 
In  re,  36  Ch.  D.  105  ;  56  L.  J.,  Ch.  720  ;  57  L.  T. 
26  ;  35  W.  R.  649— Stirling,  J. 

Third-party  Order —Special  Expenses  autho- 
rised by  Client  primarily  liable.] — By  an  agree- 
ment, dated  the  15th  July,  1885,  the  Willenhall 
Local  Board  agreed  with  the  Earl  of  Lichfield 
and  Lord  Anson,  his  eldest  son,  for  the  purchase 
of  land,  part  of  their  entailed  estates,  at  a  price 
to  be  fixed  by  arbitration.  The  agreement  con- 
tained a  clause  that  the  local  board  should  pay 
^11  the  costs  of  the  reference  to  arbitration.  The 
arbitration  took  place,  and  the  purchase  was 
■completed.  The  vendors'  solicitors  sent  in  their 
bill  of  costs  to  the  board,  and  the  board  obtained 
the  usual  order  for  taxation  on  the  petition  of  a 
third  party  liable  to  pay  under  s.  38  of  the 
Attorneys  and  Solicitors  Act,  1843,  which  pro- 
vides that  the  third  party  shall  stand  in  the 
same  position  as  the  original  client.  The  order 
for  taxation,  which  was  in  the  common  form, 
contained  a  recital  that  the  petitioners  sub- 
mitted to  pay  what  should  be  found  due  upon 
taxation.  The  bill  of  costs  contained  a  number 
of  heavy  fees  paid  to  eminent  surveyors  who  had 
been  called  as  witnesses  for  the  vendors  at  the 
-arbitration.  The  local  board  objected  to  these 
payments  as  excessive.  The  taxing-master  at 
first  marked  them  for  reduction,  but,  on  the 
vendors'  solicitors  producing  a  letter  from  Lord 
Anson,  stating  that  he  had  acted  for  his  father 
in  the  matter,  and  had  authorised  the  calling  of 
the  surveyors  in  question,  and  approved  the 
payments  made  to  them,-  the  taxing-master  held 
that  he  was  precluded  from  reducing  the  items. 
The  local  board  took  out  a  summons  to  review 
the'  taxation  :«■— Held,  that,  by  taking  the  usual 
third-party  order  for  taxation  under  6.  38  of  the 
act,  the  local  board  had  precluded  themselves 
from  taking  any  objection  to  the  bill  of  costs, 
which  ooald  not  have  been 'taken  by  the  vendors ) 


and  that,  though  by  the  agreement  the  board 
were  only  bound  to  pay  reasonable  costs,  they 
could  not,  on  taxation,  object  to  anything  au- 
thorised by  the  vendors  as  unreasonable.  Their 
proper  course,  if  the  payments  were  unreason- 
able, was  not  to  apply  for  taxation,  but  to  refuse 
to  pay,  and  leave  the  vendors  to  bring  an  action 
or  refer  the  matter  to  arbitration.  IloUids}/ 
and  Godlee,  In  re,  58  L.  T.  301— North,  J. 

One  Bill  out  of  Several]— An  assignee  of 
costs  cannot  obtain  an  order  of  course  to  tax  one 
bill  of  costs  out  of  several,  even  if  that  bill  only 
has  been  assigned  to  him.  An  order  to  tax  one 
bill  out  of  several  alone  can  only  be  obtained  by 
means  of  a  special  application.  Ward,  In  re, 
28  Ch.  D.  719 ;  54  L.  J.,  Ch.  508 ;  33  W.R.  783- 
Pearson,  J. 

Fart  of  Bill — Country  Solicitor  and  London 
Agent.] — London  agents  delivered  to  a  country 
solicitor  their  bill  of  agency  charges  for  a  year. 
The  bill  included  their  charges  relating  to  a 
number  of  distinct  actions  and  matters  in  which 
they  acted  as  agents  for  the  solicitor.    The 
charges    relating    to    each    distinct  action  or 
matter,  were  made  out  separately  under  the  head 
of  that  action  or  matter,  though  the  whole  of  the 
charges  were  comprised  in  one  bill  -.—Held,  that 
the  bill  thus  delivered  was  one  bill,  and  that  the 
country  solicitor  was  not  entitled  to  have  the 
charges  relating  to  one  of  the  actions  taxed 
without  having  the  whole  bill  taxed ;  but  held, 
on  appeal,  that,  notwithstanding  s.  37  of  the 
Solicitors   Act,   the   court    under   its   general 
jurisdiction  can  order  taxation  of  part  of  a  bill, 
and  that  in  this  case  it  was  right  that  such 
jurisdiction  should  be  exercised,  but  only  npcm 
terms  which  would  prevent  any  injustice  being 
done.    Taxation  of  the  charges  relating  to  the 
one    action   was   therefore    ordered,  upon  the 
appellants  giving  an  undertaking  to  pay  within 
a  short  limited  time  (subject  to  an  undertaking 
to  refund)  the  balance  claimed  by  the  agents  to 
be  due  to  them  for  charges  and  disbursements, 
and  the  appellants,  who    had  not   previously 
offered  any  undertaking,  were  ordered  to  pay  the 
costs  of  the  appeal.    Johnson  and  Weathersft, 
In  re,  37  Ch.  D.  433  ;  57  L.  J.,  Ch.  306  ;  58  L.  T. 
692  ;  36  W.  R.  374— C.  A. 

Power  to  cross-examine  Witnesses.  ]— On  a 
taxation  between  solicitor  and  client,  the  master, 
after  perusing  an  affidavit  of  the  solicitor  and  an 
affidavit  of  the  client  denying  the  facts,  refused 
to  allow  the  solicitor  to  submit  an  affidavit  in 
reply,  or  to  cross-examine  the  client :— Held, 
that  under  such  circumstances,  the  master  should 
allow  further  evidence,  and  should  take  tivi 
voce  evidence  under  the  powers  given  him  by 
Ord.  LXV.  r.  27,  sub-r.  26.  Brown,  Ex  parte, 
Evans,  In  re,  35  W.  R.  546— D. 


iii.  After  Paymsnt. 

Retention  of  CoiU  by  Solicitor.  1— From  Feb- 
ruary, 1874,  to  August,  1879,  S.  had  acted  a*  the 
solicitor  and  man  of  business  of  B.f  a  married 
woman,  and  daring  this  period  had  wound  up 
her  former  husband's  estate,  collected  her  rents, 
and  managed  her  estates,  lent  her  money,  aid 
negotiated  mortgages  lor  her.  In  the  ooane  of 
these  transactions  the  various  itemaofTeeeiptB 
and  payments  on  her  behalf,  including  costs 


1757 


SOLICITOR— Costs. 


1758 


and  professional  charges,  were  entered  in  a 
book  of  accounts  kept  by  S.  Copies  of  these 
accounts  were  sent  to  B.  from  time  to  time,  and 
one  of  the  mortgages  by  B.  to  S.  contained  a 
recital  that  they  had  been  gone  through  and 
settled.  In  August,  1879,  when  a  mortgage  was 
negotiated  from  a  third  person  of  sufficient 
amount  to  pay  off  B.'s  debt  to  S.,  the  accounts 
were  gone  through  and  explained  to  B.,  when  S. 
retained  the  amount  due  to  him  for  advances, 
and  for  his  costs  and  professional  charges,  out  of 
the  mortgage  money,  and  carried  the  balance  to 
her  credit  in  the  book  of  accounts.  B.  thereupon 
signed  the  account.  S.  continued  to  act  for  B. 
as  before  down  to  the  end  of  1885.  B.  had  no 
independent  advice  when  she  signed  the  account 
in  August,  1879.  On  an  application  by  B.  and 
her  husband  for  the  delivery  and  consequent 
taxation  of  bills  of  costs  from  February,  1874,  to 
August,  1879 :— Held,  following  Street,  In  re  (10 
L.  R.,  Eq.  165),  that  there  had  been  no  payment 
within  the  meaning  of  6  &  7  Vict.  c.  73,  s.  41, 
and  that  B.  was  entitled  to  an  order  for  delivery 
of  proper  bills  of  costs  for  the  period  required, 
and  a  consequent  taxation,  notwithstanding  the 
lapse  of  time  and  the  signature  by  B.  of  the  ac- 
counts. Stoydon,  In  re,  Baker,  Ex  parte,  56 
L.  J.,  Ch.  420 ;  56  L.  T.  355 ;  51  J.  P.  565— 
Chitty,  J. 

Special  Circumstances — Application  by  Cestui 
que  Trust.] — Quaere,  whether  the  provision  in 
s.  41  of  the  Solicitors  Act,  1843,  as  to  the  neces- 
sity of  showing  "  special  circumstances "  on  an 
application  for  taxation  of  a  bill  of  costs  after 
payment,  applies  in  the  case  of  an  application 
by  a  cestui  que  trust  under  s.  39  for  taxation  of 
a  bill  paid  by  trustees.     CJiowne,  In  re,  52  L.  T. 

id  Ks.    A. 


Discretion  of  Court]— Whether  the  pro- 


vision applies  or  not,  the  court,  on  an  applica- 
tion under  s.  39,  has  a  discretion  as  to  ordering 
taxation,  even  where  special  circumstances  are 
shown.  Where  overcharges  of  only  21.  or  31. 
were  shown,  and  no  pressure  or  fraud  was 
proved,  the  court  declined  to  exercise  its  dis- 
cretion by  ordering  taxation.    lb. 


Overcharge  amounting  to  Fraud — Pres- 


sure,]— After  a  solicitor's  bill  had  been  paid,  an 
order  for  the  taxation  of  it  will  not  be  made, 
unless  special  circumstances — as  overcharges  such 
as  amount  to  fraud,  or  which  are  accompanied  by 
pressure — can  be  shown,  which,  in  the  opinion 
of  the  judge,  appear  to  make  it  proper  that  the 
bill  should  be  taxed.  Munns  and  Longden,  In 
ret  50  L.  T.  356— Kay,  J.  See  also  Mey,  In  re, 
post,  col.  1768. 

A  tenant  having  an  option  of  purchase  of  the 
fee  at  a  given  price  on  the  terms  of  his  paying 
all  the  vendors  costs,  gave  notice  in  December, 

1882,  of  his  exercise  of  the  option,  and  stated 
that  he  should  not  require  an  abstract  of  title. 
The  time  for  completion  was  the  25th  of  March, 

1883,  but  it  was  arranged  for  the  tenant's  con* 
venience  that  the  completion  should  be  six 
weeks  earlier,  and  that  the  property  should  be 
conveyed  in  two  lots.  He  Bent  his  draft  con- 
veyances for  perusal  before  the  end  of  De- 
•cember.  On  the  2nd  of  February,  1883,  the 
vendor's  solicitors  sent  in  their  bill  of  costs,  in 
which  they  charged  80*.  per  cent,  on  the  pur* 


chase-money  of  each  lot.  The  purchaser's  solici- 
tors objected  to  these  charges,  but  the  vendors 
solicitors  refused  to  allow  completion  unless  they 
were  paid,  and  on  the  14th  of  February  the  pur- 
chaser paid  them  under  protest,  and  completed 
the  purchase.  After  this  he  applied  for  taxation 
of  the  bill : — Held,  that,  having  regard  to  the 
dates,  there  was  no  pressure,  and  that  there  was 
no  overcharge  amounting  to  fraud,  and  that 
there  were  therefore  no  special  circumstances  to 
authorise  taxation  after  payment.  Looey  and 
Son,  In  re,  25  Ch.  D.  301 ;  53  L.  J.,  Ch.  287  ;  49 
L.  T.  755  ;  32  W.  R.  233— C.  A. 

A  foreclosure  action  having  been  commenced, 
and  judgment  for  foreclosure  having  been  ob- 
tained but  not  made  absolute,  the  mortgagee,  on 
the  19th  June,  1882,  paid  the  mortgagee's  solici- 
tor 263Z.,  which  was  alleged  to  be  due  for  princi- 
pal, interest,  and  costs.  There  was  no  taxation 
or  delivery  of  the  bill  of  costs.  In  February, 
1883,  the  mortgagee  took  out  a  summons  for 
delivery  and  taxation  of  the  bill  of  costs : — Held, 
that,  even  if  there  had  been  payment  to  the 
solicitor  within  the  meaning  of  the  Solicitors 
Act,  1843,  the  mere  pendency  of  the  foreclosure 
action  did  not  amount  to  pressure  so  as  to  entitle 
the  mortgagee  to  taxation.  Griffith  Jones  A-  Co., 
In  re,  53  L.  J.,  Ch.  303  ;  50  L.  T.  434  ;  32  W.  R. 
350— C.  A. 

Mortgagees  for  2,000Z.  were  proceeding  to  sell 
the  mortgaged  estates.  On  the  1st  of  September, 
S.,  the  mortgagor's  solicitor,  wrote  to  B.,  the 
mortgagee's  solicitor,  informing  him  that  he  had 
found  a  transferee,  and  proposing  to  complete 
the  transfer  on  the  3rd.  B.  wrote  back  pro- 
posing the  10th  for  completion,  and  afterwards 
postponed  the  appointment  to  the  13  th.  His 
bill  of  costs,  which  amounted  with  surveyor's 
charges  to  more  than  450/.,  was  received  by  S. 
on  the  9th.  On  that  day  S.  wrote  to  B.,  saying 
that  the  bill  of  costs  appeared  excessive,  and 
would  require  to  be  carefully  gone  into,  but 
did  not  propose  to  postpone  the  completion. 
On  the  12th  8.  took  with  him  a  written  pro- 
test against  the  bill,  and  had  two  interviews 
with  B.,  at  which  arrangements  were  made  for 
completion.  S.  did  not  mention  the  subject  of 
costs  at  either  interview,  but  deposed  that  he  had 
intended  to  do  so  at  a  third  appointment  on  the 
same  day,  which  B.  did  not  keep.  On  the  13th 
the  parties  met,  the  transfer  was  completed,  and 
the  bill  of  costs  paid,  B.  refusing  to  part  with  the 
deeds  unless  it  was  paid.  S.  delivered  his  written 
protest,  and  it  appeared  that  B.  expressed 
willingness  to  reconsider  his  bill  if  any  item 
were  shown  to  be  erroneous,  but  said  nothing  to 
the  effect  that  it  was  to  be  treated  as  open  to 
taxation.  The  mortgagor  applied  for  taxation, 
alleging  pressure  and  overcharge,  but  not  re- 
ferring to  any  particular  items  of  overcharge. 
Bacon,  V.-C,  made  an  order  for  taxation,  and  B. 
appealed:  —  Held,  by  Cotton  and  Fry,  L.JJ. 
(dissentiente,  Bowen,  L.J.),  that  the  order  for 
taxation  must  be  discharged,  for  that  as  the 
shortness  of  the  interval  between  the  delivery  of 
the  bill  and  the  time'  fixed  for  completion  did 
not  arise  from  any  act  of  the  mortgagee's  soli- 
citor, but  was  owing  only  to  the  desire  of  the 
mortgagor  for  speedy  completion,  there  was  no 
pressure  such  as  to  justify  taxation,  though  the 
case  would  have  been  otherwise  if  the  mort- 
gagee had  been  pressing  for  an  early  settlement. 
Boycott,  In  re,  29  Ch.  D.  571;  55  L.  J.,  Oh.  8*5 ; 
52  t.  T.  482 ;  84  W.  B.  26-*a  A. 


1759 


SOLICITOR— Costs. 


1760 


Held,  by  Bo  wen,  L.J.,  that  the  Solicitors  Act, 
1848,  8.  41,  authorises  taxation  after  payment 
where  there  are  special  circumstances  which,  in 
the  opinion  of  the  judge,  require  the  same ;  that 
there  is  no  inflexible  rale  that  the  special  cir- 
cumstances must  be  pressure  with  overcharge, 
or  overcharge  so  gross  as  to  amount  to  fraud ; 
and  that  in  the  present  case,  as  the  parties  did 
not  at  completion  treat  the  bill  as  finally  settled, 
and  B.  had  taken  advantage  of  the  inconve- 
nience which  a  postponement  of  the  settlement 
would  have  occasioned  to  the  mortgagor,  there 
were  special  circumstances  justifying  taxation. 
lb. 

Held,  by  Bowen,  L.J.,  that  where  a  bill  is  so 
large  as  to  be  redolent  of  overcharge  it  is  not 
necessary  that  specific  items  of  overcharge 
should  be  pointed  out.    lb. 

Held,  by  Fry,  L.J.,  that  though  the  bill  ap- 
peared excessive,  the  court  could  not  treat  over- 
charges as  shown,  unless  specific  items  were 
pointed  out  on  which  it  could  exercise  its  judg- 
ment,  lb. 


Common 


] — Where  a  fee  was 


paid  under  a  common  mistake  of  the  solicitor 
and  client  that  the  scale  under  the  Solicitors' 
Remuneration  Act  applied,  the  court  refused  to 
accede  to  an  application  for  an  order  for  taxa- 
tion. Qlaseodine  and  Carl  vie.  In  re,  62  L.  T. 
781— C.  A. 


Costs  incurred  previously  to  Retainer — 


Adoption  of  Services  by  Client.]  — A  solicitor 
undertook, without  retainer,  certain  investigations 
as  to  who  were  the  next  of  kin  of  an  intestate. 
These  investigations  were  adopted  and  paid  for 
by  the  administrator  for  whom  the  solicitor  sub- 
sequently acted.  A  summons  was  taken  out 
by  another  of  the  next  of  kin  for  taxation  of 
the  solicitor's  bill  of  costs,  to  which  the  solicitor 
consented.  The  taxing-master  was  to  be  at 
liberty  to  state  special  circumstances.  The 
taxing-master  disallowed  the  costs  of  these 
preliminary  investigations.  On  an  application 
by  the  solicitor  to  be  allowed  such  costs,  the 
court  directed  that,  subject  to  the  amount  over- 
paid being  paid  into  court,  there  should  be  an 
inquiry  as  to  what  costs,  if  any,  ought  to  be  al- 
lowed the  solicitor  for  the  investigations  (the 
majority  of  the  next  of  kin  being  willing  that 
they  should  be  allowed),  such  order  to  be  served 
on  the  next  of  kin.  The  court  was,  however,  of 
opinion  that,  under  s.  41  of  the  Attorneys  and 
Solicitors  Act,  1843,  it  had  jurisdiction,  even  in 
the  absence  of  such  willingness  on  the  part  of 
the  next  of  kin  to  make  the  above  order,  inas- 
much as  on  the  finding  of  the  taxing-master 
there  were  "  special  circumstances "  within  the 
meaning  of  that  enactment :  —  But  held,  on 
appeal,  that  the  judgment  must  be  varied  by 
striking  out  the  direction  for  immediate  pay- 
ment into  court,  the  solicitors  undertaking  to 
repay  any  sum  which  might  be  disallowed  as  the 
result  of  the  inquiry.  Hill,  In  re,  55  L.  J.,  Ch. 
871 ;  55  L.  T.  456— C.  A. 


iv.  Afore  than  Twelve  Months  after  Delivery. 

"Special  Circumstances."]— The  "special  cir- 
cumstances "  which,  under  6  &  7  Vict.  c.  73, 
8.  37,  allow  a  solicitor's  bill  of  costs  to  be  re- 
ferred for  taxation,  although  twelve  months 
have  elapsed  since  it  was  delivered  to  the  client, 


are  not  merely  pressure  and  overcharge,  or  over- 
charge amounting  to  fraud.  A  judge  has  a  dis- 
cretion in  ordering  the  bill  of  costs  to  be  taxed, 
if  it  contains  items  unreasonably  large,  or 
charges  requiring  explanation,  or  gross  blunders. 
Semble,  that  the  same  principle  ought  to  be 
applied  to  the  taxation  of  a  bill  of  costs  which 
has  been  paid.  Boycott,  In  re  (supra)  com- 
mented on.  Norman,  In  re,  Bradwell,  Ex  parte, 
16  Q.  B.  D.  673  ;  55  L.  J.,  Q.  B.  202 ;  ML  T. 
143  ;  34  W.  R.  313— C.  A. 

Bills  of  costs  delivered  by  a  solicitor  contained 
the  following  charges  : — 735Z.  for  the  costs  of  a 
reference,  lasting  six  days ;  83/.  for  witnesses' 
expenses,  none  of  which  had  been  paid  bj  the' 
solicitor,  but  nearly  the  whole  of  which  had  been 
paid  by  the  client ;  and  71*.  for  shorthand  notes 
of  the  proceedings  at  a  reference  where  no  pro- 
fessional shorthand  writer  had  been  employed, 
but  the  clerk  to  the  solicitor  had  taken  the 
notes,  and  it  did  not  appear  that  the  solicitor  had 
given  his  clerk  any  part  of  the  71/.  charged. 
More  than  twelve  months  had  elapsed  since  the 
bills  were  delivered  :— Held,  that  these  charges 
constituted  "  special  circumstances  "  within  the 
meaning  of  6  &  7  Vict.  c.  73,  8.  37,  which 
justified  a  judge  in  referring  the  bill  for  taxa- 
tion,   lb. 

Overcharge  amounting  to  Fraud.]— The 


charge  by  a  mortgagor's  solicitor  to  his  client 
of  a  scale  fee  for  "  negotiating  loan "  in  addi- 
tion to  the  procuration  fee  according  to  the 
scale  paid  to  mortgagee's  solicitor,  is  an  over- 
charge amounting  to  fraud  so  as  to  entitle  the 
client  to  an  order  to  tax  on  application  more 
than  a  year  after  delivery  of  the  bill ;  especi- 
ally when  coupled  with  the  fact  that  the 
solicitor  by  whom  the  overcharge  was  made  had 
not  complied  with  his  client's  instructions  to  get 
the  bill  taxed.  Pybvs,  In  re,  35  Ch.  D.  568 ;  56 
L.  J.,  Ch.  921  ;  57  L.  T.  362  ;  35  W.  R.  770- 
Chitty,  J. 

Country  Solicitor  and  London  Agent]  — 
London  solicitors  acted  as  agents  in  London  for 
a  country  solicitor  during  the  years  1877  to 
1884  inclusive.  The  agency  was  terminated  in 
1884.  During  the  period  of  the  agencj  the 
London  agents  delivered  to  the  country  solici- 
tor, generally  once  a  year  but  sometimes 
of  tener,  detailed  bills  of  the  charges  which  they 
claimed  against  him  in  each  of  the  actions  or 
other  matters  in  which  they  had  acted  for  him. 
They  also  delivered  to  him  a  cash  account  for 
each  year,  in  which  he  was  credited  with  all 
payments  made  by  him  to  them,  and  all  nonejs 
received  by  them  on  his  behalf,  and  was  debited 
with  all  payments  made  by  them  to  him  or  on 
his  behalf,  and  with  the  gross  amounts  of  the 
several  bills  of  charges  which  had  been  de- 
livered. The  balance  appearing  to  be  doe 
from  him  on  each  account  but  the  last  was 
carried  on  to  the  next  account.  Some  of  the 
actions  continued  during  several  years,  and  one 
of  them  (Rhode*  v.  Jenkins)  continued  daring 
the  whole  period  of  the  agency,  and  was  not 
then  concluded.  After  the  close  of  the  agencj 
the  country  solicitor  claimed  a  taxation  of  the 
whole  of  the  bills  :— Held,  by  Pearson,  J.»  to** 
only  those  bills  which  had  been  delivered  within 
twelve  months  could  be  taxed,  and  that  the 
earlier  bills  must  be  treated  as  having  been 
settled  in  account  and  thus  paid,    field,  by  the 


1761 


SOLICITOR— Costs. 


1762 


Court  of  Appeal,  that  the  bills 
Rhode*  v.  Jenkins  (to  which  the 
limited),  notwithstanding  the  fact 
costs  in  it  had  not  yet  been  taxed, 
separate  bills  could  not  be  treated 
tinuous  bill  at  the  option  of  the 
citor.  JYelson,  In  re,  30  Ch.  D.  1 ; 
998 ;  53  L.  T.  415 ;  33  W.  R.  645— 


of   costs  in 
appeal  was 
that  all  the 
being  in  fact 
as  one  con- 
country  soli- 
64  L.  J.,  Ch. 
C.A. 


Charge  for  Counsel's  Fees  not  yet  paid.] — 
The  London  agents  had  charged  the  county 
solicitor  with  fees  to  counsel  which  had  not  yet 
been  paid,  but  the  country  solicitor  had  not  sup- 
plied them  with  sufficient  funds  to  pay  the  fees : 
—Held,  by  Pearson,  J.,  that  this  charge  was  not 
a  circumstance  sufficient  to  justify  a  taxation. 
Ih 

At  instance  of  Third  Party.]— The  words  of 
the  proviso  at  the  end  of  s.  41  of  the  Solicitors 
Act,  1843,  being  express,  apply  to  applications 
under  s.  38.  Dawson,  In  re  (8  W.  R.  554)  not 
followed.    Smith,  In  re,  32  W.  R.  408— Chitty,  J. 


v.  Costs  of  Taxation. 

Offer  by  Solicitor  to  reduce  the  Amount — Cer- 
tifying special  cirenmstanoes.] — C,  a  solicitor, 
sent  in  to  executors  a  bill  of  costs  for  83/.,  writ- 
ing at  the  foot, "  say  78/.,"  and  the  78/.  was  paid. 
The  residuary  legatee  obtained  an  order  to  tax 
the  bill,  which  was  taxed  at  66/.,  being  more 
than  five-sixths  of  78/.,  but  less  than  five-sixths 
of  83/.  The  residuary  legatee  objected*  to  certain 
items  as  excessive,  and  the  taxing-master  con- 
sidered that  they  were  excessive ;  but  held  that 
as  the  executors  had  authorised  them,  and  ad- 
mitted their  liability  to  pay  them,  the  residuary 
legatee  could  not  have  them  reduced : — Held, 
that  the  taxing-master  was  right  in  allowing 
these  items  ;  that  the  bill  must  be  treated  as  a 
bill  for  78/.,  from  which  less  than  one-sixth  had 
been  taxed  off,  and  that  the  solicitor  was  entitled 
to  the  costs  of  the  reference.  But  held,  on 
appeal,  that  the  bill  delivered,  within  the  mean- 
ing of  6  &  7  Vict.  c.  73,  s.  37,  was  a  bill  for  83/., 
and  that,  as  more  than  one-sixth  had  been  taxed 
off,  the  solicitor  must,  according  to  that  section, 
pay  the  costs  of  the  reference;  the  case  not 
coming  within  the  proviso  giving  the  court  a 
discretion  where  special  circumstances  are  cer- 
tified. Carthew,  In  re,  27  Ch.  D.  485  ;  54  L.  J., 
Ch.  134  ;  61  L.  T.  435  ;  32  W.  R.  940— C.  A. 

P.,  a  solicitor,  delivered  a  bill  for  362/.,  but 
stated  that  he  would  only  claim  320/.,  and  the 
320/.  only  was  entered  in  the  cash  account  which 
he  delivered  to  his  clients.  The  clients  obtained 
an  order  for  taxation.  The  taxing-master  taxed 
the  bill  at  280/.,  being  more  than  five-sixths  of 
320/.,  but  less  than  five-sixths  of  362/.,  and  cer- 
tified that  he  had  allowed  the  solicitor  the  costs 
of  the  reference,  as  he  considered  that  since  he 
had  never  claimed  more  than  320/.,  the  difference 
of  42/.  between  this  sum  and  the  amount  of  the 
whole  bill,  ought  to  be  deducted  from  the  sums 
taxed  off,  thus  reducing  them  to  40/.,  which  was 
less  than  a  sixth  of  the  sum  he  had  claimed  : — 
Held,  that  the  solicitor  must  pay  the  costs  of  the 
reference.  Held,  on  appeal,  that  special  cir- 
enmstanoes were  certified,  so  as  to  give  the  court 
a  discretion  as  to  the  costs  of  the  reference,  but 
that  the  special  circumstances  were  not  such  aa 


to  induce  the  court  to  depart  from  the  general 
rule  that  the  costs  of  the  reference  should  follow 
the  event  of  the  taxation,  and  that  in  this  case 
also,  more  than  one-sixth  having  been  taxed  off 
the  362/.,  the  solicitor  must  pay  the  costs  of  the 
reference.  Paull,  In  re,  27  Oh.  D.  485  ;  54 
L.  J.,  Ch.  134  ;  51  L.  T.  435 ;  32  W.  R.  940— 
C.A. 

Bill  delivered — Payment  of  Less  Sum  in  Dis- 
charge.]— This  was  a  summons  on  behalf  of  a 
client  for  review  of  taxation,  and  that  the  costs 
of  taxation  might  be  allowed  to  the  client  and 
disallowed  to  the  solicitors.  The  solicitors  had 
paid  themselves  20/.  out  of  money  of  their  client 
in  their  hands  in  full  discharge  of  their  bill  of 
costs.  After  this  the  client  changed  his  solici- 
tors and  required  a  bill  of  costs,  and  obtained  a 
common  order  to  tax  the  costs  of  his  former 
solicitors.  The  bill  was  delivered  to  him,  and 
soon  after  the  solicitors  moved  the  court  to 
cancel  the  order,  but  the  motion  was  refused. 
The  bill  delivered  amounted  to  26/.  8*.  Zd.,  and 
was  reduced,  on  taxation,  to  20/.  16*.  Id.,  more 
than  one-sixth  being  taxed  off.  The  taxing- 
master  certified  that  the  solicitors  were  entitled 
to  all  the  costs  of  the  taxation,  on  the  ground 
that  the  sum  allowed  on  taxation  was  greater 
than  the  sum  accepted  by  the  solicitors  in  full 
discharge : — Held,  that  one-sixth  having  been 
taxed  off  the  bill,  the  solicitors  are  not  entitled 
to  the  costs  of  the  taxation.  Eltoes  and  Turner, 
In  re,  58  L.  T.  580— Kay,  J. 

Rule  not  applying  to  Bankruptcy.] — There  is 
no  practice  in  bankruptcy  by  which  a  creditor 
reducing  the  bill  of  tne  trustee's  solicitor  by 
more  than  one-sixth  is  entitled  to  the  costs  of 
the  taxation,  and  the  Solicitors  Act  (6  &  7  Vict, 
c.  73),  ss.  37  and  39,  does  not  apply.  Marsh,  Ex 
parte,  Marsh,  In  re,  15  Q.  B.  D.  340  ;  54  L.  J., 
Q.  B.  557 ;  53  L.  T.  418  ;  34  W.  R.  620  ;  2 
M.  B.  R.  232— C.  A. 


vi.  Reviewing  Taxation. 


Objections  taken  before  Taxing-master.]— To 
enable  the  court  to  entertain  a  summons  to 
review  a  taxing-master's  certificate,  where  the 
ground  of  objection  is  to  the  whole  of  the  find- 
ing generally,  it  is  not  necessary  that  the  objec- 
tions raised  by  the  summons  to  his  finding 
should  have  been  carried  in  before  the  signing 
of  the  certificate :  Ord.  LXV.  r.  27,  sub-rr.  39 
and  41,  being  applicable  only  where  particular 
items  are  objected  to.  Sparrow  v.  Hill  (7  Q.  B.  D. 
362  ;  8  Q.  B.  D.  479)  followed.  Castle,  In  re,  36 
Ch.  D.  194  ;  56  L.  J.,  Ch.  753  ;  57  L.  T.  76  ;  35 
W.  R.  621— Kay,  J. 

Where  under  an  order  for  taxation  of  a  solici- 
tor's bill  of  costs  and  cash  account,  the  taxing- 
master  found  that,  in  consequence  of  all  ac- 
counts between  the  parties  having  been  settled, 
there  was  nothing  to  tax,  and  certified  accord- 
ingly, but  no  objections  to  the  finding  were 
carried  in  before  the  certificate  was  signed : — 
Held,  that  the  court  had  jurisdiction  to  enter- 
tain a  summons  to  review  the  certificate.    lb. 

Ord.  LXV.  r.  27,  sub-r.  42,  of  the  Rules  of 
Court,  1883,  precludes  appellants  to  the  Court 
of  Appeal  from  taking  at  that  stage  of  the  pro- 
ceedings any  objection  to  the  taxation  or  adduc- 

3  L 


1768 


SOLICITOR— Coats. 


1764 


ing  any  evidence  other  than  that  which  had 
been  carried  in  and  brought  before  the  taxing 
officer.  Hester  v.  Hester,  34  Ch.  D.  607 ;  66 
L.  J.,  Oh.  247  ;  65  L.  T.  862  ;  35  W.  R.  233  ;  51 
J.  P.  438— C.  A. 

In  Bankruptcy.]— See  Bankruptcy,  XYIII.  5. 

Party  to  take  out  Summons.] — Where  solicitors 
to  trustees  claimed  to  be  entitled  to  certain 
charges  that  were  disallowed  by  the  taxing- 
master,  the  trustees  took  out  a  summons  to 
review  the  taxation : — Held,  that  the  matter 
had  been  wrongly  brought  before  the  court,  as 
the  summons  ought  to  have  been  taken  out  by 
the  solicitors,  and  not  the  trustees,  whose  duty 
it  was  to  protect  the  estate  against  increased 
charges,  and  the  costs  of  the  application  must 
be  paid  by  the  trustees  personally.  Wood  v. 
Calvert,  55  L.  T.  53 ;  34  W.  R.  732 -Kay,  J. 

Iff  otic©  to  consider  Objections— Length  of.] — 
Upon  a  party  objecting  to  the  allowance  of 
certain  costs,  his  solicitors  received  at  4.30  p.m. 
from  the  taxing-master  a  notice  that  at  1  p.m. 
the  following  day,  he  would  proceed  to  consider 
the  objections.  On  a  summons  to  review  taxa- 
tion on  the  ground  that  by  analogy  to  r.  16  of 
Ord.  LXV.  of  the  Rules  of  Court,  1883,  the 
taxing-master  ought  to  have  given  a  clear  day's 
notice  of  his  intention  to  proceed,  notice  of  the 
4th  of  December,  1885,  was  sufficient.  Hill, 
In  re,  33  Ch.  D.  266  ;  55  L.  T.  104— C.  A. 


2.  WHAT  SUMS  ALLOWED. 

a.  Solicitors'  Remuneration  Aot. 

i.  Election  as  to  Scale. 

Time  for — "Before  undertaking  any  Busi- 
ness."]— The  solicitors  of  the  assigns  of  a  lease 
of  copyhold  land  wrote  to  P.,  the  copyholder, 
asking  for  renewed  leases  to  their  clients  under 
a  covenant  in  the  original  lease.  On  the  25th 
of  July  P.'s  solicitors  wrote  to  the  solicitors  of 
the  applicants  stating  that  P.  had  called  on 
them  with  the  letter,  and  that  the  matter  therein 
referred  to  should  have  their  attention,  and 
asking  for  evidence  of  the  title  of  the  applicants. 
The  evidence  required  was  furnished.  Some 
delay  took  place  in  consequence  of  the  necessity 
of  P.  being  admitted,  and  obtaining  a  licence  to 
demise.  On  the  16th  of  October,  P.'s  solicitors 
were  informed  by  the  steward  of  the  manor  that 
P.  could  be  admitted,  and  that  licence  to  demise 
would  be  given.  On  the  19th  of  October,  P.'s 
solicitors  gave  him  written  notice  of  their  elec- 
tion to  be  remunerated  according  to  the  old 
system  as  modified  by  Schedule  II.  to  the  rules 
under  the  Solicitors'  Remuneration  Act.  In 
the  books  of  the  solicitors  was  an  entry  under 
that  date  "  instructions  for  drawing  new  leases," 
but  there  was  no  evidence  as  to  the  circum- 
stances under  which  it  was  made.  On  the  21st 
of  October  P.'s  solicitors  sent  to  the  applicant 
draft  leases.  The  leases  were  granted,  and  the 
lessees,  who  were  bound  to  pay  the  costs  of  the 
lessor's  solicitors,  insisted  that  the  remuneration 
must  be  according  to  the  scale  in  Schedule  I. : — 
Held,  that  the  election  on  the  19th  of  October 
was  too  late,  for  that  the  business  had  been 
undertaken  on  the  25th  of  July,  and  that  the 


taxation  must  be  according  to  the  scale.  Alien, 
In  re,  34  Ch.  D.  433 ;  56  L.  J.,  Ch.  487;  56 
L.  T.  6  ;  35  W.  R.  218— C.  A. 

The  notice  of  election  under  rule  6  of  the 
General  Order  to  the  Solicitors'  Remuneration 
Act,  1881,  must  be  given  by  the  solicitor  before 
he  undertakes  any  business  at  all  in  the  particular 
matter  for  his  client  After  having  done  any 
work  in  the  matter  for  which  he  could  charge 
his  client  if  the  scale  under  the  order  did  not 
apply,  it  is  too  late  for  him  to  elect  Allen,  h 
re  (supra)  followed.  Hester  v.  Hester,  34  Ch.  D. 
607 ;  56  L.  J..  Ch.  247  ;  55  L.  T.  862  ;  35  W.  BL 
233 ;  51  J.  P.  438— C.  A.  Affirming  55  L.  T.  669 
—Kay,  J. 

A  solicitor  who  acted  for  a  mortgagee  in  re- 
lation to  the  mortgaged  property  received  from 
the  solicitors  of  the  persons  entitled  to  theeqaitr 
of  redemption  a  request  that  the  mortgagee 
would  sell  under  his  power  of  sale,  and  in  pursu- 
ance of  this  he,  without  any  express  authority 
from  his  client,  did  work  in  relation  to  the  con- 
tract for  sale  for  which  if  authorised  he  would, 
apart  from  the  rules,  under  the  Solicitors'  Re- 
muneration Act,  have  been  entitled  to  be  paid, 
and  which  would  be  covered  by  the  scale  fee. 
The  sale  was  completed  : — Held,  that  a  notice  of 
election  to  be  remunerated  according  to  the  old 
system,  which  was  given  by  the  solicitor  after 
work  of  the  above  description  had  been  done, 
was  too  late,  although  given  before  the  contract 
was  signed,  for  that  as  the  client  had  ratified 
his  proceedings  he  stood  in  the  same  position  as 
if  he  had  received  previous  authority,  and  must 
be  treated  as  having  undertaken  the  business  as 
soon  as  ne  did  any  work  of  the  above  deacnp- 
tion.    lb. 

Where  money  is  paid  into  court  under  statutes 
incorporating  s.  80  of  the  Lands  Clauses  Con- 
solidation Act,  1845,  the  solicitor  for  the  Tender 
may  entitle  himself  to  detailed  charges,  provided 
that  he  signifies  his  election  "  before  undertaking 
the  business."  Bridewell  Hospital  and  Metv- 
politan  Board  of  Works,  In  re,  57  L.  T.  155- 
Chitty,  J. 

The  notice  of  election  under  rule  6  of  the 
general  order  under  the  Solicitors'  Remuneration 
Act,  1881,  as  to  remuneration  for  conveyancing 
business  arising  in  an  action,  must  be  given  by 
the  solicitor  before  he  undertakes  such  convey- 
ancing business.  After  having  done  any  work 
in  the  matter  which  would  properly  be  covered 
by  the  scale  charge,  e.g.,  discussed  with  the 
client  the  mode  of  sale  and  questions  relating  to 
the  title,  it  is  too  late  for  him  to  elect  All**, 
In  re  (34  Ch.  D.  433),  and  Hester  v.  Hester  (34 
Ch.  D.  607)  followed.  Metcalfe,  In  re,  Metesl/t 
v.  Blencotoe,  57  L.  J.,  Ch.  82 ;  57  I*  T.  925;  * 
W.  R.  137— Stirling,  J. 

Sending  in  a  bill  of  coats  in  the  old  form 
cannot  be  treated  as  an  election  by  the  solicitors 
to  charge  according  to  Schedule  II.  of  the  Order. 
Fleming  v.  Hardcastle,  52  L.  T.  851 ;  33  W.  B. 
776— Pearson,  J. 

Notice  of  Election— To  whom  given.]— Semble, 
where  a  solicitor  is  acting  for  several  trustees, 
notice  of  election  must  be  given  to  them  slL 
Hester  v.  Hester,  supra. 

Where  notice  of  election  under  the  rule  has 
been  properly  given  by  a  solicitor  to  his  client, 
a  first  mortgagee,  it  is  binding  on  a  subsequent 
incumbrancer  and  also  on  the  mortgagor.  Better 
v.  Hester— "Per  Kay,  J.,  supra. 


1765 


SOLICITOR— CosU. 


1766 


"  Clients."] — Where,  under  a  lease  con- 
taining a  power  of  renewal,  the  assigns  are  liable 
to  pay  the  costs  of  a  new  lease,  the  only  person 
to  whom  any  notice  of  election  under  r.  6  need 
be  given  by  the  lessor's  solicitor  is  the  lessor 
himself ;  the  assigns  not  being  "  clients  "  of  the 
solicitor  within  a.  1,  sub-s.  3,  of  the  Solicitors1 
Remuneration  Act,  1881.  so  as  to  make  any 
notice  to  them  necessary.  Allen,  In  re,  34 
Ch.  D.  423  ;  56  L.  J.,  Ch.  6  ;  55  L.  T.  630  ;  35 
W.  R.  100  ;  51  J.  P.  325— Per  Kay,  J.  See  &  C. 
in  C.  A.,  supra. 

Work  done  before  Boles.] — Whether  a  solicitor 
might  on  the  rules  coming  into  operation  have 
effectually  declared  such  election,  quaere.  Field, 
In  re,  infra. 

ii.    In,  what  Cotes  Applicable, 
a.  Generally, 

Conveyancing  Business  in  Action  —  "Other 
Business."] — Solicitors  who  transact  convey- 
ancing business  in  an  action  will,  under  the  Soli- 
dtors*  Remuneration  Act,  1881  (44  &  45  Vict, 
c.  44),  and  the  General  Order  of  August,  1882, 
be  allowed  taxed  costs  and  charges  for  such 
business  according  to  the  scales  set  forth  in  the 
schedules  to  the  General  Order.  The  proper 
construction  of  the  language  of  s.  2  of  the  Soli- 
citors' Remuneration  Act,  1881,  is  that  it  refers 
to  conveyancing  matters  which  take  place  in  an 
action  as  well  as  to  those  out  of  court,  and  that 
the  exception  is  only  from  "  other  business  "  not 
being  conveyancing  business,  and  accordingly 
where  the  taxing-master  had  disallowed  certain 
charges  made  for  conveyancing  business  in  an 
action,  and  under  the  scales  of  charges  contained 
in  the  schedules  to  the  General  Order  of  August, 
1882,  he  was  directed  to  review  his  taxation. 
Stanford  v.  Roberts,  26  Ch.  D.  165  ;  53  L.  J.,  Ch. 
338  ;  50  L.  T.  147  ;  32  W.  R.  404  ;  48  J.  P.  692 
— Kay,  J. 

The  words  of  s.  2,  "  not  being  business  in  any 
action  or  transaction  in  any  court  or  in  the 
chambers  of  any  judge  or  master,"  apply  only 
to  the  "  other  business"  mentioned  immediately 
before,  i.e.,  to  business  not  being  conveyancing 
business,  and  do  not  exclude  from  the  scale  con- 
veyancing business  done  under  the  direction  of 
the  court.  Merchant  Taylors' Company,  In  re,  30 
Ch.  D.  28  ;  54  L.  J.,  Ch.  867  ;  62  L.  T.  775  ;  33 
W.  R.  69a— C.  A. 

Whole  of  Business  must  be  Bone.] — A  tenant 
having  an  option  of  purchase  of  the  fee  at  a 
given  price  on  the  terms  of  his  paying  all  the 
vendor's  costs,  gave  notice  of  the  exercise  of  the 
option,  and  stated  that  he  should  not  require  an 
abstract  of  title,  and  sent  in  his  draft  convey- 
ances for  perusal.  The  vendor's  solicitors  sent 
in  their  bill  of  costs,  in  which  they  charged  30*. 
per  cent,  on  the  purchase-money  of  each  lot, 
considering  that  this  was  the  proper  charge  under 
the  Solicitors'  Remuneration  Act,  1881,  which 
provides  that  amount  of  remuneration  to  a  ven- 
dor's solicitor  "for  deducing  title  to  freehold, 
copyhold  or  leasehold  property,  and  perusing 
and  completing  conveyance  (including  prepara- 
tion of  contract  or  conditions  of  sale  if  any)  "  : 
— Held,  that  the  case  was  governed  by  the  new 
rales,  but  that  the  bill  was  framed  on  an 
^erroneous  footing,  for  that  the  ad  valorem  remu- 


neration authorised  by  Schedule  I.  was  charge- 
able only  where  the  whole  of  the  business  in 
respect  or  which  it  was  imposed,  viz.,  the  de- 
ducing title  and  perusing  and  completing  con- 
veyance was  done ;  that  here,  as  there  was  no 
deducing  of  title,  but  only  perusal  and  comple- 
tion of  the  conveyance,  Schedule  I.  did  not 
apply,  but  that  under  the  General  Order,  r.  2  (c), 
the  solicitor's  remuneration  was  to  be  regulated 
by  the  old  system  as  modified  by  Schedule  II. 
Lacey  $  Sons,  In  re,  25  Ch.  D.  301 ;  63  L.  J., 
Ch.  287  ;  49  L.  T.  755  ;  32  W.  R.  233—C.  A. 

Under  a  provision  contained  in  a  will  the 
testator's  sous  took  the  real  estate  at  a  valuation, 
and  took  over  the  assets  and  liabilities  of  his 
business,  the  sons  giving  a  mortgage  to  the 
trustees  to  secure  the  purchase-money.  The 
same  solicitors  acted  for  all  parties  in  preparing 
the  necessary  deeds,  and  charged  full  vendors^ 
and  purchasers'  costs,  and  also  mortgagors'  and 
mortgagees'  costs  under  the  scale  : — Held,  that 
they  were  only  entitled  to  remuneration  under 
schedule  2,  for,  as  they  had  not  "  investigated 
and  deduced  title,"  the  scale  charge  did  not 
apply.  Keeping  and  Gloag,  In  re,  58  L.  T.  679 
— Stirling,  J. 

In  July,  1881,  W.  instructed  his  solicitors 
to  prepare  a  building  agreement  with  form  of 
lease  to  be  granted  on  completion  set  out  in  the 
schedule.  In  June,  1883,  the  premises  having 
been  completed,  W.  gave  further  instructions 
for  a  lease,  which,  as  prepared,  was,  except  as  to 
parties,  a  verbatim  copy  of  that  contained  in 
the  schedule.  In  November,  1869,  the  solicitors 
delivered  their  bill  of  costs,  in  which  under  date 
July,  1881,  were  various  items  amounting  to  17Z. 
in  relation  to  preparing  the  agreement ;  and 
under  date  June,  1883,  "  to  costs  of  preparing, 
engrossing,  executing,  and  completing  lease  and 
counter-part,  as  per  Schedule  I.  of  Solicitors' 
Remuneration  Act,  592. 10«."  On  taxation  this 
item  was  objected  to,  on  the  ground  that  the  act 
did  not  apply,  as  the  substantial  part  of  the  work 
done  was  previous  to  the  1st  of  January,  1883, 
and  bad  been  already  charged  for  in  the  costs  of 
preparing  the  agreement.  The  taxing-master 
disallowed  the  objection,  but  deducted  20Z.  from 
the  591. 10*.,  and  directed  a  detailed  bill  of  costa 
in  relation  to  the  preparation  of  the  lease  to  be 
brought  in.  This  bill  was  delivered,  but  was  not 
taxed.  On  summons  to  review  taxation  : — Held, 
that  the  taxing-master  ought  to  have  taxed  the 
detailed  bill  for  the  actual  preparation  of  the 
lease,  and  not  have  allowed  the  ad  valorem  scale 
even  to  the  extent  he  did ;  that  the  ad  valorem 
scale  applied  only  where  the  solicitor  had  sub- 
stantially done  the  work  specified  in  Schedule  I. ; 
that  as  the  scale  charges  did  not  apply,  the 
taxing-master  ought  to  have  taxed  their  charges 
in  accordance  with  r.  2,  sub-s.  (c),  and  Schedule  II. 
Hichley,  In  re,  54  L.  J.,  Ch.  608 ;  52  L.  T.  89  ; 
33  W.  R.  320— Chitty,  J.  See  also  Wilson,  In  r*t 
and  Wood  v.  Calvert,  post,  coL  1771, 

Part  of  Work  done  before  Act.]— Negotiations 
for  a  lease  were  carried  on  through  the  lessor's 
solicitor  for  two  years  before  the  rules  under  the 
Solicitors'  Remuneration  Act,  1881,  came  into 
operation.  After  they  came  into  operation 
terms  were  come  to,  and  a  lease  executed.  The 
solicitor  in  his  bill  charged  for  the  negotiations, 
and  also  charged  the  amount  fixed  by  Schedule  I. 
Part  II.  to  the  rules,  as  remuneration  "  for  pre- 
paring, settling,  and  completing  lease  and  counter-* 

3  L  2 


1767 


SOLICITOR— Costs. 


1768 


part."  The  taxing-master  disallowed  all  the 
items  for  negotiations.  The  solicitor  appealed  : 
— Held,  that  though  the  business  had  been  com- 
menced before  the  rules  came  into  operation,  the 
taxation  must  be  conducted  according  to  the 
rules,  the  solicitor  not  having  declared  his  elec- 
tion to  the  contrary.  Field,  In  re,  29  Ch.  D. 
608  ;  54  L.  J.,  Ch.  661 ;  62  L.  T.  480 ;  33  W.  B. 
653  ;  49  J.  P.  613— C  A.  And  tee  preceding 
case. 

In  June,  1882,  D.  contracted  to  sell  a  piece  of 
land  for  3752.  upon  the  terms  of  the  purchaser 
paying  to  the  vendor  "  all  reasonable  and  proper 
costs"  of  making  and  verifying  his  title  and 
executing  the  conveyance.  In  January,  1883, 
the  general  order  under  the  Solicitors'  Remuner- 
ation Act,  1881 ,  came  into  operation.  That  Order 
provides  that  the  costs  of  the  vendor's  solicitor, 
with  respect  to  such  a  sale,  shall  be  according 
to  an  ad  valorem  scale  of  30*.  per  cent,  (see 
Schedule  L,  part  1).  In  April,  1883,  D.  (who 
had  previously  employed  a  country  solicitor) 
transferred  the  business  to  a  London  solicitor. 
In  March,  1884,  the  London  solicitor  sent  in  his 
bill  of  costs  to  the  purchaser's  solicitor  made  out 
on  the  old  system.  The  purchaser's  solicitor 
objected  that  the  bill  ought  to  be  made  out 
according  to  the  scale  prescribed  by  the  General 
Order.  On  a  summons  by  the  purchaser  for  a 
declaration  to  this  effect : — Held,  that  the  costs 
payable  by  the  purchaser  were  regulated  by  that 
Order.  Denne  and  Secretary  of  State  for  War, 
In  re,  or  Secretary  of  State  for  War  and  Denne, 
In  re,  54  L.  J.,  Ch.  45  ;  61  L.  T.  657  ;  33  W.  R. 
120— Pearson,  J.  See  alto  Fleming  v.  Hard- 
cattle,  infra. 

0.  Sale  of  Land. 

Out  of  the  Jurisdiction.] — The  general  order 
made  in  pursuance  of  the  Solicitors'  Remuner- 
ation Act,  1881,  does  not  apply  to  a  sale  of  land 
situate  outside  the  jurisdiction.  Therefore,  on 
such  a  sale,  the  costs  of  the  vendor's  solicitor  are 
not  chargeable  according  to  the  scale  in  Schedule 
I.,  part  l,but  are  regulated  by  the  old  system  as 
altered  by  Schedule  II.  QremUe't  Settlement,  In 
re,  40  Ch.  D.  441 ;  68  L.  J.,  Ch.  266 ;  60  L.  T. 
43  ;  37  W*.  R.  150— Kay,  J. 

"  Investigating  Title."]— The  Corporation  of 
London  resolved  to  purchase  the  old  bankruptcy 
court,  which  under  s.  68  of  the  Bankruptcy  Act, 
1861,  was  vested  in  the  Public  Works  Commis- 
sioners, the  purchase-money,  93,5002.,  being  pay- 
able out  of  funds  in  court  under  various  acts, 
including  the  Lands  Clauses  Act,  and  represent- 
ing lands  of  the  corporation  taken  by  certain 
public  bodies.  On  applying  to  the  commis- 
sioners the  corporation  were  informed  that  the 
property  was  vested  in  the  commissioners  under 
the  above  section,  and  that  they  "  did  not  agree 
to  furnish  any  evidence  of  title,"  but  would 
apply  to  the  lord  Chancellor,  under  the  section, 
for  his  authority  to  sell ;  and  they  subsequently 
wrote  that  the  Lord  Chancellor  had  authorised 
the  sale  by  his  secretary.  The  city  solicitor, 
however,  having  regard  to  the  terms  of  the 
Bection,  required  a  written  authority  signed  by 
the  Lord  Chancellor  himself,  which  was  duly 
obtained.  The  solicitor,  having  thus  satisfied 
himself  as  to  the  commissioners'  title,  obtained, 
on  summons  in  chambers,  an  order  sanctioning 
the  purchase,  the  chief  clerk,  upon  the  produc- 


tion of  the  Lord  Chancellor's  authority  and  at 
the  request  of  the  solicitor,  dispensing  with  the 
usual  reference  as  to  title.  The  purchase  having 
been  completed,  the  corporation  carried  in  their 
solicitor's  bill  for  taxation,  containing  a  charge 
for  278/.  lot.,  according  to  the  scale  in  Schedule 
I.,  part  1,  of  the  general  order  under  the  Solici- 
tors' Remuneration  Act,  1881,  for  "investigating 
title  and  preparing  and  completing  conveyance," 
The  taxing-master  disallowed  the  charge  on  the 
ground  that  there  had  been  no  investigation  of 
title,  and  that  therefore  the  scale  charge  did  not 
apply.  On  a  summons  by  the  corporation  to 
review  the  taxation  : — Held,  that  there  had  been 
an  "  investigation  of  title  "  within  the  terms  of 
the  general  order,  and  that  therefore  the  scale 
charge  applied.  London  (ATayor),  Ex  parte,  U 
Ch.  D.  452  ;  56  L.  J.,  Ch.  308  ;  56  L.  T.  13;  35 
W.  R.  210— Kay,  J. 

A  lessee,  with  an  option  of  purchasing  the 
freehold  of  the  land  leased,  gave  notice  of  his 
desire  to  exercise  the  option.  £.  said  he  thongfat 
one  of  the  lessors  had  money  to  lend,  and  com- 
municated the  lessee's  desire  to  him.  The  lessee 
and  lessor  met  and  arranged  between  them  that 
800Z.  should  be  advanced  upon  mortgage  of  the 
property  about  to  be  purchased.  E.  acted  as 
solicitor  in  reference  to  the  mortgage  and  par- 
chase.  He  did  not  ask  for  or  inspect  any  abstract 
of  title  on  behalf  of  the  mortgagee,  as  the  only 
title  was  that  of  the  lessors,  a  copy  of  which  had 
been  given  to  the  lessee.  The  purchase  and 
mortgage  were  completed,  and  £.  delivered  a 
bill  of  costs,  by  which  he  charged  the  fee* 
allowed  by  Sched.  I.,  part  ],  of  the  general 
order  under  the  Solicitors'  Remuneration  Act, 
1881,  for  investigating  title  and  preparing  mort- 
gage. The  bill  was  paid,  and  a  summons  was 
taken  out  after  payment  for  taxation :— Held, 
that  E.  was  not  entitled  to  the  scale  fee  for 
investigating  title,  as  there  had  been  no  investi- 
gation, and  that  the  overcharge  in  these  respect* 
was  such  as  to  constitute  "  special  circumstances" 
justifying  taxation  after  payment  under  6  &  ? 
Vict.  c.  73,  8.  41 ;  but  it  appearing  that  there 
had  been  a  bargain  between  the  client  and  E. 
previous  to  payment  not  to  dispute  the  bill  of 
costs,  the  summons  was  dismissed.  JSfcy,  /»  "> 
37  Ch.  D.  40 ;  56  L.  J.,  Ch.  905  ;  57  L  T.  233 ; 
36  W.  R.  96— North,  J. 


Preparation  of  Contract— Negotiation- 


Completion.]— Under  the  usual  order  for  taxation 
of  costs,  charges,  and  expenses  in  an  administra- 
tion action,  the  solicitors  sent  in  a  bill  of  costs 
for  conveyancing  work  done  for  the  estate  made 
out  in  the  old  way.  It  related  to  purchases  by 
the  trustees,  the  negotiations  and  most  of  the 
work  for  which  was  done  before,  but  which  waa 
completed  after,  the  act  came  into  operation. 
The  taxing-master  allowed  only  costs  according 
to  the  first  schedule  of  the  general  order.  One 
of  the  purchases  was  a  purchase  back  by  the 
trustees  of  surplus  lands  taken  from  them  by  a 
railway  company,  and  the  title  was  therefore 
taken  without  investigation,  except  as  to  a  very 
small  piece  which  had  belonged  to  another 
owner;  the  solicitors,  though  acting  for  the 
purchasers,  had  prepared  the  contract  for  sale : 
— Held,  that  the  scale  applied,  although  part  of 
the  work  was  done  before  the  act ;  that  the  title 
had  substantially  been  investigated  as  far  as  was 
necessary,  and  therefore  Lacey,  In  re  (25  Ch.  D. 
301)  did  not  apply,  but  that  they  were  entitled 


1769 


SOLICITOR—  Costs. 


1770 


to  charge  for  preparation  of  the  contract  in 
addition  to  the  scale  charge,  because  the  scale 
assames  the  contract  to  be  prepared  by  the 
vendor's  solicitor,  and  they  were  entitled  to 
1  per  cent,  for  negotiating  the  purchase  as  well 
as  to  the  1£  per  cent,  for  completion.  Firming 
v.  Ilardcastle,  52  L.  T.  851  ;  33  W.  R.  776— 
Pearson,  J. 

—  Fart  of  Money  on  Mortgage.] — When 
(art  of  the  purchase-money  is  allowed  to  remain 
on  mortgage  of  the  property  sold,  the  solicitor  of 
the  vendor  mortgagee  cannot  charge  the  scale 
fee  under  Schedule  I.,  part  1,  of  the  general 
order  under  the  Solicitors'  Remuneration  Act, 
1881,  for  investigating  the  mortgagor's  title. 
<ila*codine  and  Carlyle,  In  re,  52  L.  T.  781— C.  A. 

Deducing  Title— Perusing  and  Completing 
Conveyance.] — See  Harris,  In  re.  post,  col.  1772. 

Searches. ] — To  entitle  a  solicitor  to  the 

percentage  charges  under  Schedule  I.,  parts  1 
and  2,  of  the  general  orders  under  the  Solicitors' 
Remuneration  Act,  1881,  he  must  have  deduced 
title  to  the  premises,  and  of  such  deduction  of 
title,  furnishing  searches  is  an  essential  part. 
Buckley,  In  re,  Ferguson,  Ex  parte,  21  L.  R.,  Ir. 
392-M.  R. 

Penning  Abstracts.]  —Upon  the  construction 
of  Schedule  11.  of  the  General  Order  (containing 
scales  of  charges)  made  in  pursuance  of  the 
Solicitors'  Remuneration  Act,  1881,  abstracts  of 
title  are  not  included  in  the  words  *'  deeds,  wills, 
and  other  documents,"  the  charge  for  perusing 
which  is  therein  fixed  at  1*.  per  folio ;  but  the 
old  scale  of  6*.  $d.  for  perusal  of  every  three 
brief  sheets  of  eight  folios  each  remains  un- 
altered. Parker,  In  re,  29  Ch.  D.  199  ;  54  L.  J., 
Ch.  959  ;  52  I,.  T.  686  ;  33  W.  R.  541— Chitty,  J. 


Conveyance— Partition  Action.] — 
In  a  partition  action  an  order  was  made  for  the 
sale  of  the  estate  and  payment  of  the  costs  of  all 
parties  out  of  the  proceeds.  The  plaintiff,  who 
was  the  owner  of  one-fourth  of  the  estate,  had 
the  conduct  of  the  sale,  and  his  solicitor  was  paid 
his  costs  in  accordance  with  r.  2,  sub-s.  (a),  of 
the  general  order  under  the  Solicitors'  Remunera- 
tion Act,  1881 :— Held,  that  the  solicitors  of  the 
defendants,  who  were  the  owners  of  the  other 
three-fourths  of  the  estate,  were  entitled  to  be 
paid  the  costs  of  perusing  the  conveyance,  and 
obtaining  its  execution  by  their  clients,  under 
i.  2,  sub-s.  (c).  Humphreys  v.  Jones,  31  Ch.  D. 
30 ;  55  L.  J.,  Ch.  1  ;  53  L.  T.  482  ;  34  W.  R.  1— 
U  A. 

Attempted  Ineffectual  Bale— Change  of  Soli- 
citors.] -Schedule  I.,  part  1,  r.  2,  of  the  general 
order  to  the  Solicitors'  Remuneration  Act,  1881, 
applies  only  to  cases  where  the  attempted  in- 
effectual sale  and  the  subsequent  effectual  sale 
therein  mentioned  are  conducted  by  the  same 
solicitors.  If  there  is  a  change  of  solicitors  after 
an  attempted  ineffectual  sale,  the  taxation  of 
the  costs  of  such  sale  must  be  made  under  general 
order,  t.  2  (c).  Dean,  In  re.  Ward  v.  Holmes, 
32  Ch.  D.  209  ;  55  L.  J..  Ch.  420  ;  54  L.  T.  266— 
Kay,  J. 

Subject  to  Incumbrances — Scale  Charge,  how 
ascertained.] — The  property    of  a  company  in 


liquidation  was  sold  by  the  solicitors  of  the 
official  liquidator  for  24,0002.  (subject  to  a  mort- 
gage for  900/.),  and  after  the  satisfaction  of  the 
claims  of  former  successive  owners  a  sum  of 
1,750/.  remained  for  the  official  liquidator.  The 
sale  was  confirmed  by  an  order  made  in  the 
liquidation,  and  the  parties  to  the  conveyance 
were  the  company,  the  official  liquidator,  the 
original  owners,  and  certain  intermediate  pur- 
chasers  who  had  claims  for  unpaid  purchase- 
money.  The  solicitors  on  taxation  included  in 
their  bill  of  costs  scale  charges  as  upon  a  sale 
for  24,900/.  as  follows  :— Negotiating,  102/.  5*. ; 
deducing  title,  and  completing,  including  con- 
tract, 107/.  5*.  The  taxing-master  disallowed  the 
negotiating  fee,  and  only  allowed  the  scale 
charge  upon  the  J ,750/.  On  summons  to  review 
taxation  : — Held,  that  the  court  could  look  not 
only  at  the  contract,  but  at  the  substance  of  the 
transaction,  and  that,  having  regard  to  the  whole 
of  the  matters  with  reference  to  the  provisional 
contract  coupled  with  the  order,  the  liquidator's 
name  was  only  used  for  the  purpose  of  con- 
venience, and  that  the  taxing-master's  decision 
was  right.  Grey's  Brewery  Company,  In  re,  56 
L.  T.  298— Chitty,  J. 

Upon  the  sale  by  a  trustee  in  bankruptcy  of 
property  belonging  to  the  bankrupt  subject  to 
incumbrances,  the  solicitor  of  the  trustee  is  en- 
titled to  be  paid  a  percentage  on  the  total  amount 
of  the  purchase-money,  and  not  simply  on  the 
value  of  the  equity  of  redemption.  Harris,  Em 
parte,  Gallard,  In  re,  21  Q.  B.  D.  38  ;  57  L.  J., 
Q.  B.  628  ;  59  L.  T.  147  ;  36  W.  R.  592 ;  6  M. 
B.  R.  123— Cave,  J. 

Under  Lands  Clauses  Act.] — Money  arising 
from  the  sale  of  land  belonging  to  a  cor- 
poration, and  taken  by  a  railway  company 
under  their  statutory  powers,  was  reinvested  in 
land  under  the  direction  of  the  court.  The 
solicitor  of  the  corporation  charged  the  ad  valo- 
rem scale  fee  prescribed  by  the  rules  under  the 
Solicitors'  Remuneration  Act,  1881,  Schedule  L, 
part  1,  "  for  investigating  title  and  preparing 
and  completing  conveyance  :" — Held,  that  the  ex- 
ception in  Schedule  I., part  l,r.  11,  which  provides 
that  the  scale  shall  not  apply  in  cases  of  sales 
under  the  Lands  Clauses  Act,  or  any  other  private 
or  public  act  under  which  the  vendor's  charges 
are  paid  by  the  purchaser,  was  not  applicable  to 
the  case.  Merchant  Taylors'  Company,  In  ret 
30  Ch.  D.  28 ;  54  L.  J.,  Ch.  867 ;  52  L.  T.  775  j 
33  W.  R.  693— C.  A. 

Held,  also,  that  as  the  purchaser's  solicitor  had 
had  to  do  all  the  things  which  he  would  have  had 
to  do  in  a  purchase  not  under  the  direction  of 
the  court,  the  case  was  not  taken  out  of  the 
scale  by  the  fact  that,  in  a  purchase  under  the 
direction  of  the  court,  he  did  not  incur  as  much 
responsibility  as  in  a  private  purchase,  and 
therefore,  that  the  scale  fee  was  properly 
chargeable.    lb. 


Perusal  of  Deeds.] — Under  an  order  to 


tax  the  costs  awarded  to  the  owner  of  lands 
compulsorily  taken  by  a  company,  his  solicitor 
is  not  entitled  to  Is.  per  folio  for  perusing  deeds 
referred  to  in  the  abstract  of  title  furnished. 
The  general  order  made  in  pursuance  of  the 
Solicitors'  Remuneration  Act,  1861,  Schedule  II., 
does  not  apply  to  such  taxation.  Bann  Naviga- 
tion Aet,  In  re,  Olpherts,  Ex  parte,  17  L.  R.,Ir% 
168— M.  R. 


1771 


SOLICITOR— Costs. 


1772 


Election  as  to  Scale.]  —  See  Bridewell 

Hospital  and  Metropolitan  Board  of  Works, 
In  re,  ante,  col.  1764. 

Bale  by  Auction — tkune  Work  done  by  Sur- 
Teyor.] — A  trust  estate  in  Yorkshire  was  ordered 
to  be  sold  by  the  court,  and  the  costs  to  be 
taxed.  The  appointment  of  an  auctioneer  was 
sanctioned  in  cnambers,  and  also  the  appoint- 
ment of  a  certain  firm  of  surveyors.  The  pro- 
perty was  sold.  The  taxing-master  allowed  a 
zee  to  the  auctioneer  for  putting  the  property 
up  for  sale  and  knocking  it  down,  which,  accord- 
ing to  the  custom  of  the  country,  was  the  manner 
in  which  an  auctioneer  was  paid  there.  He  also 
allowed  charges  to  the  surveyors  for  dividing  the 
property  into  lots,  valuing  it,  preparing  plans, 
and  settling  the  reserves.  The  solicitors  to  the 
trustees  claimed  to  be  entitled  to  the  scale 
charges  allowed  by  the  schedule  to  the  Solicitors1 
Bemuneration  Act,  1881,  for  conducting  the 
sale,  and  also  to  be  allowed  the  fees  which  they 
had  paid  to  the  surveyors ;  the  auctioneer's  fee 
they  proposed  to  pay  themselves.  The  taxing- 
master  disallowed  the  scale  charges.  The  trus- 
tees took  out  a  summons  to  review  the  taxation : 
—Held,  that  the  solicitors  were  not  entitled  to 
the  scale  charges,  inasmuch  as  some  of  the 
work  which  they  ought  to  have  done  had  been 
done  by  the  surveyors,  and  their  fees  paid  by 
the  clients.  Wood  v.  Calvert,  55  L.  T.  53  ;  34 
W.  B.  732— Kay,  J. 

Property  of  a  lunatic  in  Lancashire  was  put 
up  for  sale  by  auction  under  an  order  in 
lunacy,  but  was  not  sold.  The  solicitor  charged 
162.  12*.  6<Z.  remuneration  according  to  the 
scale  in  the  order  under  the  Solicitors1  Remune- 
ration Act,  1881,  on  8,3001.,  the  amount  of  the 
reserved  prices.  He  also  paid  the  auctioneer 
6Z.  5*.,  which  was  allowed  against  the  estate, 
and  the  surveyor's  bill  of  402.  3*.  was  allowed  at 
312.  10*.  against  the  estate,  but  the  taxing- 
master  disallowed  the  16Z.  12*.  6d.,  and  only 
allowed  22. 2s.  for  instructing  the  auctioneer  and 
surveyor,  and  32.  3#.  for  particulars,  &c.  His 
reasons  were,  first,  that  the  solicitor  had  not  in 
fact  conducted  the  sale,  the  auctioneer  and  sur- 
veyor having  done  most  of  the  work  and  been 
paid  by  the  client ;  and  secondly,  that  the  scale 
did  not  apply,  for  that  a  commission  had  been 
paid  to  the  auctioneer  by  the  client  within  the 
meaning  of  r.  11  to  part  1  of  Schedule  I.  to  the 
general  order  : — Held,  that  as  the  bill  of  the 
surveyor  contained  charges  for  various  things 
which  it  was  the  duty  of  the  person  conducting 
the  sale  to  do,  the  solicitor  had  not  done  the 
whole  of  the  work  for  which  the  ad  valorem  re- 
nunexation  was  provided,  and  the  scale  did  not 
apply.  Wilson,  In  re,  29  Ch.  D.  790 ;  55  L.  J., 
Ch.  627 ;  63  L.  T.  406— C.  A. 

Conducting  Sale — Ho  Commission  paid 

by  Client  to  Auctioneer.]  —  Semble,  also,  that 
the  case  was  taken  out  of  r.  4  by  the  specific 
provision  of  r.  11  to  part  1  of  Schedule  I.  to  the 
order,  which  provides  that  the  scale  for  con- 
ducting a  sale  by  auction  shall  apply  only  in 
cases  where  no  commission  is  paid  by  the  client 
to  an  auctioneer.    lb. 

An  agreement  for  sale  of  certain  leasehold 
property  was  entered  into  whereby  the  pur- 
chasers, who  were  a  public  body,  agreed  to  pay 
the  vendor's  solicitors'  preliminary  costs,  and 
also  the  costs  of  title  and  conveyance,  and  the 


fees  of  the  vendor's  surveyor.    A  surveyor  wag 
employed,  who,  according  to  the  vendor's  soli* 
citors'  statement,  merely  valued  the  property, 
though  it  was  alleged  by  the  purchasers  that  he 
also  negotiated  the  price.    The  purchasers,  who 
had  become  owners  of  the  reversion,  did  not  re- 
quire any  abstract  or  copy  of  the  vendor's  lease 
to  be  furnished  to  them  on  being  informed  by 
the  vendor's  solicitors  that  the  title  consisted  of 
the  lease  only.    The  purchase  was  completed, 
and  the  purchasers  paid  the  fee  of  the  vendor's, 
surveyor.    The  vendor's  solicitors  sent  in  a  bill 
of  costs  to  the  purchasers  consisting  of  two 
items  only,  the  first  being  the  charge  allowed  by 
the  scale  in  Sched.  I.,  part  1,  of  the  General 
Order  to  the  Solicitors'  Remuneration  Act,  1881, 
for  negotiating  a  sale  by  private  contract,  and 
the  second  being  the  charge  allowed  by  the 
same  schedule  for  deducing  title  to  leasehold 
property  and  perusing  and  completing  convey- 
ance.    Upon  taxation  the  taxing-master  held 
that  the  vendor's  solicitors  were  not  entitled  to 
costs  calculated  upon  the  scale  in  Sched.  L,  part 
1,  but  to  costs  calculated  under  Sched.  II.  only: 
— Held,  upon  summons  to  review  taxation,  that 
the   solicitors  were  not  entitled   to  the  scale 
charge  for  negotiating  a  sale  by  private  con- 
tract, as  the  surveyor's  fee  was  a  commission  to 
"  an  auctioneer  or  estate  or  other  agent "  within 
Sched.  I.,  part  1,  r.  11,  of  the  General  Order,  and 
that  they  were  not  entitled  to  the  scale  charge 
for  deducing  title  and  perusing  and  completing- 
conveyance,  as  no  title  was  deduced.    Harris, 
In  re,  56  L.  T.  477— North,  J. 

Property  was  put  up  for  sale  by  public  auction, 
and  sold  in  two  lots.  The  auctioneer's  commis- 
sion was  paid  by  the  vendor.  The  solicitor  em- 
ployed by  the  vendor  in  connexion  with  the 
sale,  charged  the  scale  fee  provided  by  part  1  of 
Sched.  I.  to  the  General  Order  of  August,  1882, 
under  the  Solicitors'  Bemuneration  Act,  1881, 
for  "deducing  title,"  &c. ;  and  he  also  made 
various  charges  for  work  done  by  him  previous 
to  the  sale,  for  which  he  claimed  to  be  entitled 
under  clause  2  (c)  of  the  order.  The  taxing- 
master  allowed  the  scale  fee,  but  disallowed 
the  other  items,  considering  himself  bound  by 
Emanuel,  In  re  (33  Ch.  D.  40)  :— Held,  that  the 
solicitor  was  entitled  under  clause  2  (c)  (in 
addition  to  the  scale  fee  for  deducing  title),  to 
charge  in  respect  of  work  properly  done  by  him 
in  connexion  with  the  sale  for  which  the  auc- 
tioneer had  not  been  paid.  Faulkner,  In  re.  3d 
Ch.  D.  566 ;  56  L.  J.,  Ch.  1011  ;  67  L.  T.  342; 
36  W.  R.  59— North,  J. 

On  a  sale  by  auction  of  property  in  Yorkshire, 
under  an  order  made  in  an  administration  action, 
the  chief  clerk,  previously  to  sale,  settled  a  sum 
for  auctioneer's  fees.  In  accordance  with  the 
mode  of  business  in  Yorkshire  the  auctioneer 
merely  offered  the  property  for  sale,  and  the 
solicitor  having  the  conduct  of  the  sale  paid  all 
other  expenses  of  the  auction,  including  those  of 
preparing  and  distributing  the  particulars  and 
conditions  of  sale,  advertisements,  printer's  bills, 
and  the  costs  of  lithographed  plans : — Held,  that 
under  the  Solicitors'  Bemuneration  Act,  1881, 
General  Order,  Sched.  I.,  part  1,  r.  11,  the  solicitor 
was  not  entitled  to  scale  fees  for  conducting  the 
sale  by  auction.  Sykes,  In  re,  Sykes  v.  Sykes, 
56  L.  J.,  Ch.  238  ;  56  L.  T.  425  ;  36  W.  R.  234- 
Chitty,  J. 

A  solicitor  employed  in  a  sale  of  property  by 
auction,  where  the  auctioneer's  commission  was 


1773 


SOLICITOR— Costs. 


1774 


paid  by  the  client,  delivered  a  bill,  in  which  he 
charged  the  scale  fee  for  conducting  the  sale, 
and  deducing  the  title,  and  mentioned  items 
of  solicitor's  work  not  included  in  the  scale  fee 
for  deducing  the  title.  The  taxing-master  dis- 
allowed the  fee  for  conducting  the  sale  because 
of  the  auctioneer's  charges  being  paid  by  the 
client,  and  did  not  allow  any  fee  for  items  men- 
tioned in  the  bill  of  solicitor's  work  not  included 
in  the  scale  fee  for  deducing  the  title,  on  the 
ground  that  the  bill  was  made  up  on  a  wrong 
footing,  and  could  not  be  altered  by  adding 
charges  : — Held,  that  the  taxing-master  was 
right  in  disallowing  the  scale  fee  for  conducting 
the  sale,  but  that  he  ought  to  have  allowed  the 
solicitor  a  quantum  meruit  for  solicitor's  work 
done  by  him,  and  mentioned  in  his  bill,  and 
which  was  not  covered  by  the  scale  fee  for 
deducing  title.  Peace  and  Ellis,  In  re,  67  L.  T. 
758 ;  36  W.  R.  61— North,  J. 

Solicitors  were  employed  in  a  sale  of  property 
by  auction,  the  client  paid  the  auctioneer  a  lump 
sum  for  his  services.  The  solicitors  claimed  re- 
muneration for  work  done  by  them  in  relation  to 
the  conducting  of  the  sale.  Rule  11  of  Sched.  I., 
part  1,  provides  that  "  the  scale  for  conducting 
a  sale  bj  auction  shall  apply  only  to  cases  where 
no  commission  is  paid  by  the  client  to  the  auc- 
tioneer "  : — Held,  that  rule  11  does  not  deprive 
the  solicitor  of  all  remuneration  for  work  done 
in  respect  of  the  conduct  of  the  sale,  but  that 
under  the  General  Order,  s.  2.  sub-s.  (c),  he  is 
entitled  to  a  quantum  meruit  for  such  work,  the 
remuneration  to  be  regulated  according  to  the 
old  system  as  altered  by  Schedule  II.  Parker  v. 
Blenkhorn,  Newbould  v.Bailward,  14  App.  Cas. 
1 ;  58  L.  J.,  Q.  B.  209  ;  59  L.  T.  906  ;  87  W.  R. 
401— H.  L.  (E.).  Reversing  Parker,  In  re,  59 
L.  T.  491—  C.  A.,  and  Newbould,  In  re,  20  Q.  B. 
D.  204  ;  67  L.  J.,  Q.  B.  41 ;  58  L.  T.  334  ;  36 
W.  R.  161— C.  A. 

y.  Leases. 

Prior  Agreement  for — Scale  Fee.]— The  scale 
fee  prescribed  by  part  2  of  Sched.  L  to  the 
General  Order  of  August,  1882,  under  the  Soli- 
citors' Remuneration  Act,  1881,  to  be  paid  to  a 
lessor's  solicitor  "for  preparing,  settling,  and 
completing  lease  and  counterpart,"  includes  the 
solicitor's  remuneration  for  the  preparation  of  a 
prior  agreement  for  the  lease,  and  the  solicitor 
cannot  charge  for  the  preparation  of  the  agree- 
ment in  addition  to  the  scale  fee.  Emanuel,  In 
re,  33  Ch.  D.  40 ;  65  L.  J.,  Ch.  710  ;  55  L.  T.  79  ; 
34  W.  R.  613  ;  51  J.  P.  22— C.  A. 

An  agreement  for  a  lease  provided  that  the 
lessor  should  at  his  own  expense  do  certain 
repairs  to  the  property  and  deliver  possession  to 
the  lessee  as  soon  as  they  were  done,  which  was 
to  be  not  later  than  a  certain  day,  time  to  be  of 
the  essence  of  the  contract,  and  that,  on  the  les- 
sor complying  with  these  conditions,  the  lessor 
should  grant,  and  the  lessee  accept,  a  lease  in 
the  form  thereto  annexed : — Held,  that  these 
stipulations  did  not  relate  to  collateral  matters, 
so  as  to  make  the  agreement  something  more 
than  a  step  towards  the  granting  of  the  lease, 
but  related  only  to  the  terms  on  which  the  lease 
was  to  be  granted,  and  that  the  preparation  of 
the  agreement  was  "  business  connected  with  " 
the  lease  within  the  meaning  of  r.  2  of  the 
general  order,  and  could  not  be  separately 
charged  for.    lb. 


"  Agreements  for  leases  "  in  Sched.  I.,  part  2, 
means  agreements  for  leases  intended  to  be  relied 
on  as  regulating  the  tenancy  without  any  formal 
lease,  and  the  scale  fee  is  payable  in  respect  of 
them.    lb. 

Charge  for  Negotiations.]— Having  regard  to 
r.  2,  the  amount  fixed  by  Sched.  1.,  part  2,  in- 
cludes the  charges  for  negotiations  prior  to 
granting  a  lease.  Field,  In  re,  29  Gh.  D.  608 ; 
54  L.  J.,  Ch.  661 ;  52  L.  T.  480 ;  33  W.  R.  553  ; 
49  J.  P.  613—0.  A. 

Scale  — Rent — Shares — Money  Payment  or 
Premium.] — A  firm  of  solicitors  were  employed 
by  a  lessor  to  prepare  for  him  a  lease  of  certain 
property  for  twenty-one  years  to  a  company, 
the  consideration  for  the  lease  being  a  rent  of 
802.,  and  the  issue  of  400  shares  of  the  nominal 
value  of  10/.  None  of  the  company's  shares  had 
been  sold,  so  that  no  market  value  had  been 
placed  upon  them ;  and  200  of  the  400  shares 
had  not  been  issued.  The  solicitors  charged 
the  scale  fee  on  the  rent  of  802.,  and  also  the 
scale  fee  for  deducing  title,  perusing  and  com- 
pleting the  deed  as  upon  a  premium  of  4,000Z.f 
the  amount  of  the  nominal  value  of  the  400 
shares : — Held,  that  they  were  not  entitled  to 
make  the  latter  charge,  as  the  value  of  the 
shares  could  not  be  estimated,  and  r.  5,  part  2, 
Sched.  I.,  of  the  Remuneration  Order,  1882,  did 
not  apply  to  such  a  case.  Hasties  and  Oraw- 
furd,  In  re,  36  W.  R.  57fc- North,  J. 


5.  Mortgages* 

Negotiating  Pee.] — A  solicitor  mentioned  to 
a  borrower  the  name  of  a  client  of  his  as  likely 
to  lend.  A  mortgage  was  arranged  without 
further  action  on  the  part  of  the  solicitor,  who 
then  acted  for  both  parties  in  the  matter  of  the 
mortgage : — Held,  that  the  solicitor  was  not 
entitled  to  a  negotiating  fee.  Eley,  In  re,  37 
Ch.  D.  40  ;  56  L.  J.,  Oh.  906  ;  67  L.  T.  263  ;  36 
W.  R.  96— North,  J. 

"Perusing"  Title-deeds.]— A  solicitor  making 
advances  to  a  client  upon  the  security  of  real 
property  and  perusing  for  that  purpose  the  title- 
deeds  of  such  property,  is  not  entitled  to  charge 
at  the  rate  of  1*.  per  folio  "  for  perusing  "  under 
the  2nd  schedule  of  the  General  Order  of  August, 
1882,  made  in  pursuance  of  the  Solicitors'  Re- 
muneration Act,  1881  (44  &  46  Vict  c.  44). 
Robertson,  In  re,  19  Q.  B.  D.  1 ;  56  L.  T.  859  ; 
35  W.  R.  833— D. 

Sale  of  Leaseholds  —  Discretion  of  Taxing- 
Master. } — In  an  administration  action,  to  which 
mortgagees  of  leaseholds  were  not  parties,  the 
plaintiffs  obtained  an  order  to  sell  the  leaseholds, 
and  that  the  money  should  be  paid  into  court. 
The  order  was  made  without  the  knowledge  of 
the  mortgagees.  The  plaintiffs  wrote  to  the 
mortgagees  sending  draft  particulars  and  con- 
ditions of  sale  as  settled  by  the  conveyancing 
counsel  to  the  court "  for  your  perusal."  The 
mortgagees  undertook  to  concur  in  the  sale  on 
condition  that  their  mortgage  debt  and  costs 
and  expenses  were  provided  for  out  of  the  pro- 
ceeds of  sale  in  court,  and  they  returned  the 
conditions  approved.  The  taxing-master  dis- 
allowed the  fees  charged  at  the  rate  of  1*.  a 


1775 


SOLICITOR— Costs. 


1776 


folio  for  perusing  the  conditions  of  sale,  bat 
allowed  a  fee  of  one  guinea  for  reading  them. 
One  of  the  grounds  of  disallowance  was  that 
conditions  of  sale  were  not  such  documents 
as  were  intended  by  the  word  "  documents  "  in 
Schedule  II.  of  the  General  Order  made  in  pur- 
suance of  the  Solicitors1  Remuneration  Act,  1881. 
On  summons  to  vary  the  taxing-master's  certifi- 
cate : — Held,  that  (while  not  deciding  that  con- 
ditions of  sale  did  not  come  within  the  word 
"documents")  this  was  an  extraordinary  case 
where  the  taxing-master  had  a  discretion.  Bees, 
In  re,  Bees  v.  Bees,  58  L.  T.  68— Kay,  J. 

c.  Trustee  and  Cestui  que  Trust. 

Act  not  Applying.]  —  In  taxation  between 
solicitor  and  client,  cases  for  counsel  to  advise 
trustees  whether  they  should  require  a  release 
from  their  cestui  que  trusts  on  their  discharge, 
statements  for  the  information  of  the  client  as 
to  the  investment  of  the  trust  funds,  and  the 
prudence  of  changing  it,  or  directions  to  the 
trustees,  signed  by  the  client,  consenting  to  the 
change  of  investment,  and  directing  a  new  in- 
vestment, are  not  included  in  Sched.  II.  of  the 
General  Order  to  the  Solicitors'  Remuneration 
Act,  1881,  but  are  taxable  under  the  scale  of  fees 
prior  to  that  act  WHagan,  Ex  parte,  19  L.  R., 
Ir.  n~ M.  R. 

b.  In  Other  Gases. 

Charge  on  Recovered  or  Preserved  Property.] 
— H.  and  H.,  solicitors  acting  for  an  adminis- 
trator, were  authorised  by  him  to  retain,  in 
respect  of  their  costs,  certain  moneys  forming 
part  of  the  estate  of  the  deceased.    An  order  to 
tax  the  bill  of  costs  of  H.  and  H.  was  obtained 
by  J.,  one  of  the  next  of  kin  of  the  deceased, 
acting  by  R.,  her  solicitor.  The  taxation  showed 
that  H.  and  H.  had  been  overpaid  to  the  extent 
of  3542.    H.  and  H.  then  acted  for  J.,  and,  on 
her  behalf,  disputed  the  validity  of  R.'s  retainer 
by  J.    It  was,  however,  decided  by  Kay,  J.,  that 
the  retainer  was  valid.    An  order  was  then  ob- 
tained by  R.  giving  him  a  charge  on  the  3542., 
in  respect  of  his  costs  properly  incurred  in  the 
recovery  of   that  sum  ;   and  such  costs  were 
thereby  directed  to  be  taxed.    The  Court  of 
Appeal  affirmed  the  order,  upholding  R.'s  re- 
tainer.   In  taxing  the  costs  of  R.  under  the 
charging  order,  the  taxing-master  allowed  him 
the  costs  of  the  opposition  to  the  proceedings 
to  set  aside  the  retainer,  and  also  the  costs 
connected  with  the  appeal.    H.  and  H.  having 
objected  to  such  allowance,  they  received,  at 
4.30  p.m.  on  the  4th  December,  1885,  from  the 
taxing-master,  a  notice  that,  at  1  p.m.  on  the 
following  day,  he  would  proceed  to  consider 
their  objections.  H.  and  H.  requested  the  taxing- 
master  to  adjourn  to  a  later  day,  but  he  refused 
to  do  so,  and  proceeded  in  their  absence.    On  a 
summons  being  taken  out  by  the  administrator, 
that  the  taxation  should  be  reviewed  on  the 
grounds :  (1)  That  the  costs  in  reference  to  the 
dispute  as  to  retainer  ought  not  to  have  been 
included  in  the  taxation,  inasmuch  as  they  were 
merely  the  costs  of  a  private  dispute  between  J. 
and  R. ;  (2)  that  the  costs  of  the  appeal  ought 
not  to  have  been  included,  inasmuch  as  they 
were  incurred  after  the  date  of  the  charging 
order  : — Held,  (1)  that  the  costs  of  the  opposition 
to  the  proceedings  to  set  aside  the  retainer  were 


costs  of  "  recovering  '•  the  3542.,  and  that  snch 
costs  were  properly  included  in  the  taxation ; 
(2)  that  the  appeal  having  been  brought  in  con- 
sequence of  the  proceedings  in  the  court  below, 
the  costs  thereof  were  properly  included.  Hill, 
In  re,  33  Ch.  D.  266  ;  65  L.  T.  104— C.  A 

In  County  Court — Scale  in  Actions  underlie] 
— The  Appendix  to  the  County  Court  Bales, 
1886,  contains  a  scale  of  costs  as  between  solici- 
tor   and  client  where    the   amount  recovered 
exceeds  22.,  and  does  not  exceed  102.,  and  pro- 
vides that  no  other  costs  arc  to  be  allowed  where 
the  amount  claimed  does  not  exceed  102.,  unless 
the  judge  certifies  under  s.  5  of  the  County  Courts 
(Costs  and  Salaries)  Act,  1882.    The  plaintiff 
having  commenced  an  action  in  a  county  court 
for  10?.,  consulted  solicitors  with  reference  to  it, 
who,  after  taking  various  steps  to  investigate  the 
claim,  recommended  a  settlement,  which  the 
plaintiff  refused  to  accept.    The  solicitors  then 
returned  the  papers  to  the  plaintiff,  who  pro- 
ceeded with  the  action  in  person  : — Held,  that 
upon  the  taxation  of  the  solicitors1  bill  for  the 
services  rendered  by  them,  it  was  a  question  tor 
the  master  whether  the  solicitors  had,  in  fact, 
acted  in  the  conduct  of  the  action,  and  that  if 
they  appeared   to   have  so  acted,  they  could 
recover  no  other  costs  than  those  specified  in 
the  appendix.    Emanuel  and  Company,  In  re 
(9  Q.  B.  D.  408)  considered.      Bod,  Longttajf* 
and   Company,  In  re,  Lamond,  Ex  parte,  21 
Q.  B.  D.  242  ;  57  L.  J.,  Q.  B.  503  ;  59  L.  T.  467 
— D. 

Power  to  disallow  Items  caused  by  Vegli- 
genoe.1 — The  taxing-master  in  taxing  a  bill  of 
costs  between  a  solicitor  and  his  client  has 
power  to  disallow  the  costs  of  proceedings  in  an 
action  conducted  by  the  solicitor  which  were 
occasioned  by  the  negligence  or  ignorance  of  the 
solicitor.  But  if  the  negligence  goes  to  the  loss 
of  the  whole  action,  he  ought  not  to  disallow 
them,  but  to  leave  the  client  to  bring  an  action 
for  negligence  against  the  solicitor.  Mauey  and 
Carey,  In  re,  26  Ch.  D.  459  ;  53  L.  J.,  Ch,  705 ; 
51  L.  T.  390  ;  32  W.  K  1008— C.  A. 

Inaccurate  Particulars— Conditions  of  Bala.  ]— 
A  solicitor  inserted  an  inaccurate  statement  in 
the  particulars  of  a  sale,  which  he  attempted  to 
cover  by  a  condition.  An  intending  purchaser 
refused  to  complete  on  discovering  the  in- 
accuracy, but  counsel  advised  the  vendor's  solici- 
tor that  the  condition  in  question  bound  the 
purchaser,  and  advised  a  summons  under 
the  Vendor  and  Purchaser  Act,  which  was 
accordingly  taken  out;  the  chief  clerk  and 
court  of  first  instance  agreed  with  counsel,  but 
the  Court  of  Appeal  reversed  their  decision,  and 
held  that  the  said  condition  could  not  get  rid  of 
the  positive  statements  in  the  particulars,  so  that 
the  purchaser  could  not  be  compelled  to  com- 
plete. In  the  taxation  of  the  vendor's  costs  as 
between  him  and  the  solicitor,  the  taxing-master 
disallowed  the  solicitor  his  costs  in  connexion 
with  the  abortive  attempt  at  a  sale  and  with  the 
summons,  and  the  court  affirmed  his  disallow- 
ance.   X,  In  re,  54  L.  T.  634 — V.-C.  B. 

Country    Solicitor— Journeys    to   London,  J— 

Upon  a  summons  by  a  solicitor  for  an  order 
directing  the  taxing-master  to  review  his  taxa- 
tion of  a  bill  of  costs :— Held,  that  the  journeys 


1777 


SOLICITOBr-Co«fe. 


1778 


of  a  country  solicitor  to  town  to  attend  counsel  j 
and  otherwise  to  conduct  the  proceedings  in  an  j 
action  ought  to  be  allowed,  where  the  solicitor 
had  authority  from  his  client  to  make  these 
charges,  but  that  such  journeys  to  town  ought 
not  to  be  allowed  simply  on  the  principle  that 
the  country  solicitor  would  probably  be  better 
acquainted  with  the  subject-matter  than  his 
London  agent.  Foster,  In  re  (8  Ch.  D.  698) 
dissented  from.  Stortr,  In  re,  26  Ch.  D.  189 ; 
53  L.  J.,  Ch.  872  ;  50  L.  T.  583  ;  32  W.  R.  767— 
Pearson,  J. 

Solicitor  attending  Trial  where  he  does  not 
Practise.] — A  solicitor  attending  on  a  record 
for  trial  at  assizes  in  a  county  where  he  does  not 
usually  practise  is  entitled  upon  taxation  be- 
tween solicitor  and  client,  to  21.  2s.  for  each 
day  necessarily  occupied,  irrespectively  of  the 
number  of  days  the  cases  may  be  actually  at 
hearing,  or  of  its  being  settled  without  a  trial. 
The  allowances  Nos.  100  and  101  in  the  schedule 
to  the  General  Rules  of  1854  as  between  solicitor 
and  client,  are  not  altered  by  the  orders  as  to 
costs  under  the  Judicature  Act.  MNamara  v. 
Malone,  18  L.  R.,  Ir.  209— Ex.  D. 

Case  for  Counsel's  Opinion.] — A  fee  to  counsel 
for  advising  as  to  whether  an  ejectment  will  lie, 
and  who  are  the  necessary  parties  to  be  made 
plaintiffs,  may  in  a  proper  case  be  allowed,  as 
between  solicitor  and  client.    lb. 

Counsel's  Fees — Quantum — Authority  to  em- 
ploy particular  Counsel.  ]— The  special  allow- 
ances and  scale  of  fees  mentioned  in  rules  of 
Supreme  Court,  1883,  Ord.  LXV.  r.  27,  sub-s.  48, 
are  applicable  to  all  taxations,  whether  in  an 
action    in  the    Supreme  Court,  or   under  the 
common  order,  or  under  a  special  order  obtained 
by  a  client  against  his  solicitor  under  the  juris- 
diction given  by  the  Solicitors  Act,  1843  (6  &  7 
Vict  c.  73).    But  Ord.  LXV.  r.  27,  sub-s.  48, 
does  not  prevent  the  client  from  giving  the 
solicitor  authority,  which  may  be  expressed  or 
implied,  to  employ  a  particular  leader,  and  to 
give  him  such  special  fees  by  way  of  refresher 
or  otherwise,  though  of  far  larger  amount  than 
the  maximum  fixed  by  sub-s.  48,  as  may  be 
necessary  to  secure   his   services.      And  such 
authority  having  been  shown  by  the  evidence 
to  have  been  clearly  and  distinctly  given  by  the 
clients  (a  board  of  directors)  to  their  solicitor : — 
Held,  that    the   taxing-master   was   not    pre- 
cluded from  allowing  more  than  the  maximum 
scale  fee  fixed  by  sub-s.  48,  and  that  he  must 
exercise  his  discretion  as  to  the  quantum,  having 
regard  to  the  authority  given  by  the  clients  to 
their  solicitor.     Harrison,  In  re,  33  Ch.  D.  52  ; 
55  L.  J.,  Ch  768  ;  55  L.  T.  72  ;  34  W.  R.  645  ;  50 
J.  P.  372— C.  A. 

Befresher    and    Consultation   Fees.] — 

There  is  no  recognised  rule  that  where  special 
fees  have  been  paid  to  the  leader,  the  fees  paid 
to  hie  juniors  must  be  according  to  the  same 
rate  ;  and,  accordingly,  in  the  absence  of  proof 
that  the  clients  had  authorised  payment  of 
special  refresher  fees  to  the  junior  counsel  pro- 
portionate to  those  paid  to  the  leader,  the  dis- 
allowance by  the  taxing-master  of  special 
refresher  fees  to  the  junion  counsel  was  upheld. 
Although  the  case  was  one  of  very  great  magni- 
tude and  complication,  and  occupied  twenty- 
nine  days,  the  court  declined  to  interfere  with 


the  discretion  of  the  taxing-master  in  disallowing 
extra  fees  paid  by  the  solicitor  to  his  counsel 
for  consultations.    lb. 

Third  Counsel — Solicitor  not  informing 

Client  of  unusual  Expense.] — The  rule  laid 
down  in  Blyth  and  Fanshawe,  In  re  (10  Q.  B. 
D.  207),  applies  to  the  costs  of  employing  a 
third  counsel  on  the  hearing  of  an  appeal,  the 
expense  being  an  unusual  one.  Therefore,  even 
if  a  solicitor  has  obtained  his  client's  sanction  to 
the  employment  of  a  third  counsel  on  an  appeal, 
the  costs  will  not  be  allowed  on  taxation  be- 
tween solicitor  and  client,  unless  the  solicitor 
has  also  explained  to  the  client  that  the  costs 
will  probably  not  be  allowed  as  between  party 
and  party,  and  that,  even  if  he  succeeds  on  his 
appeal,  he  may  have  to  pay  the  costs  of  the 
third  counsel  himself.  Broad,  In  re,  15  Q.  B.  D. 
420 ;  54  L.  J.,  Q.  B.  573 ;  52  L.  T.  888— C.  A. 
Affirming  33  W.  R.  749— D. 


o.    When  Solicitor  a  Party. 

Solicitor  Suing  or  Defending  in  Person.] — 
Where  a  solicitor  sues  or  defends  an  action  in 
person,  and  obtains  judgment  with  costs,  he  is 
entitled  to  recover  from  his  adversary  the  same 
costs  as  would  have  been  allowed  if  he  were  not  a 
party  to  the  action,  but  were  acting  as  solicitor 
for  another  person,  subject  to  this,  that  the  costs 
to  be  allowed  must  not  include  any  items  which 
the  union  of  the  two  characters  renders  impos- 
sible or  unnecessary  ;  and  where  any  items  are 
attributable  to  the  fact  that  the  solicitor  is 
acting  in  the  two  characters,  such  items  should 
be  treated  on  taxation  as  attributable  to  his 
character  as  party  to  the  action,  and  not  to  his 
character  as  solicitor.  London  Scottish  Perma- 
nent Benefit  Society  v.  Chorlcy,  13  Q.  B.  D. 
872  ;  53  L.  J.,  Q.  B.  551  ;  51  L.  T.  100  ;  32 
W.  R.  781— C.  A. 

Where  one  of  a  body  of  mortgagees  is  a 
solicitor,  and  acts  as  such  in  enforcing  the  mort- 
gage security,  he  is  entitled  to  charge  profit 
costs  against  the  mortgagor,  whether  the  mort- 
gagees are  trustees  or  not.  If  in  such  a  case 
the  mortgagor,  in  applying  to  tax  the  bill  of 
the  solicitor-mortgagee,  desires  to  raise  the 
objection  to  profit  costs,  he  should  state  his 
objection  in  his  petition  for  taxation.  Donald- 
son, In  re,  27  Ch.  D.  544  ;  54  L.  J.,  Ch.  151  ;  51 
L.  T.  622— V.-C.  B. 


d.   When  Solicitor  an  (Executor  or  Trustee. 

Profit  Costs.] — A  testatrix,  after  appointing  V. 
and  H.,  who  was  a  solicitor  and  also  one  of  the 
attesting  witnesses  to  the  will,  executors  and 
trustees  of  her  will,  declared  that  H.  should  be 
entitled  to  charge  and  to  receive  payment  for  all 
professional  business  to  be  transacted  by  him 
under  the  will  in  the  same  manner  as  he  might 
have  done  if  he  had  not  been  an  executor.  V. 
proved  the  will,  and  a  creditor's  action  was  in- 
stituted against  her.  V.  employed  the  firm  of 
solicitors,  in  which  H.  was  a  partner,  as  her  soli- 
citors in  the  action.  H.  afterwards  proved  the 
will,  and  was  made  a  defendant  to  the  action. 
When  the  action  came  on  for  further  considera- 
tion, a  question  arose  whether  H.  was  entitled  to 
his  profit  costs,  and  an  order  was  made  declaring 


1779 


SOLICITOR— Costs. 


1780 


that  he  was  not  entitled  to  claim  payment  of 
profit  costs  07  virtue  of  the  declaration  in 
the  will,  he  being  one  of  the  attesting  wit- 
nesses thereto,  such  declaration  to  be  without 
prejudice  to  any  of  his  rights  apart  from  the 
clause  in  the  will.  The  taxing-master  dis- 
allowed H.'s  profit  costs  of  action,  on  the  ground 
that  he  was  a  solicitor-trustee,  and  as  such  not 
entitled  to  make  a  profit  out  of  his  trust : — Held, 
on  a  summons  to  review  the  taxation,  that  H. 
was  entitled  to  profit  costs  of  action,  but  that  he 
was  not  entitled  to  profit  costs  for  business  not 
done  in  the  action,  and  that  the  rule  applied  as 
well  to  costs  incurred  before  as  after  he  proved 
the  will.  Cradock  v.  Piper  (1  Mac.  &  G.  664) 
discussed,  and  held  not  to  have  been  overruled. 
Broughton  v.  Br  ought  on  (5  D.  M.  &  G.  160) 
discussed.    Barber,  In  re,  Burgess  v.  Vinicome, 

34  Ch.  D.  77  ;  56  L.  J.,  Ch.  216  ;  55  L.  T.  882  ; 

35  W.  B.  326— Chitty,  J. 

E.,  a  partner  in  a  firm  of  country  solicitors, 
was  one  of  two  trustees  of  a  will  which  con- 
tained no  power  to  charge  for  professional 
services.  E.  and  his  co-trustee  were  respondents 
to  an  application  for  maintenance  by  a  next 
friend  on  behalf  of  an  infant  under  the  sum- 
mary procedure  of  the  court,  and  E.'s  firm, 
through  their  London  agents,  acted  as  soli- 
citors for  E.  and  his  co-trustee  and  made  profit 
costs: — Held,  that  E.'s  firm  were  entitled  to 
receive  those  profit  costs  as  coming  within  the 
exception  laid  down  in  Cradock  v.  Piper  (1  Mac. 
&  G.  664).  Although  that  case  has  been  often 
disapproved,  it  has  been  so  long  acted  on  as  a 
binding  authority  that  it  ought  not  now  to  be 
overruled.  The  exception  applies  not  only  to 
proceedings  in  a  hostile  suit,  but  to  friendly 
proceedings  in  chambers,  such  as  an  application 
for  maintenance  of  an  infant.  Cor  sell  is,  In  re, 
Lawton  v.  Elwcs,  34  Ch.  D.  675  ;  56  L.  J.,  Ch. 
294  ;  56  L.  T.  411  ;  35  W.  R.  309  ;  61  J.  P.  597— 
C.A. 

After  the  death  of  E.'s  co-trustee,  E.  was  made 
defendant  to  an  administration  action  in  which 
a  receiver  was  appointed,  and  E.'s  firm,  through 
their  London  agents,  acted  for  the  receiver  and 
made  profit  costs  : — Held,  that  these  profit  costs 
could  not  be  retained  by  the  firm ;  on  the  prin- 
ciple that  a  trustee  must  not  place  himself  in  a 
position  in  which  his  interest  conflicts  with  his 
duty.    lb. 


Preparing   Leasee.] — E.    and  his  firm 


made  profit  costs  by  preparing  leases  and  agree- 
ments for  leases  of  portions  of  the  trust  estate, 
which  costs  were  paid  by  the  lessees: — Held, 
that  although  the  costs  were  paid  by  the  lessees, 
the  solicitors  were  employed  on  behalf  of  the 
trust  estate,  and  that  E.  and  his  firm  must 
account  to  the  estate  for  the  costs.    lb. 


Fees  of  Steward  of  Manor.]— E.  and  his 


co-trustee  appointed  E.'s  partner  steward  of  a 
manor  which  formed  part  of  the  trust  estate, 
and  fees  for  manorial  business  were  paid  to  the 
steward  by  the  tenants  and  brought  into  the 
partnership  accounts : — Held,  that  the  fees,  not 
being  received  by  the  steward  in  his  character 
of  solicitor,  were  not  liable  to  be  accounted  for 
to  the  trust  estate.    lb. 

Declaration  in  Will  — Solicitor— Attesting 
Witness.] — A  declaration  in  a  will  that  a 
solicitor,  who  is  an  executor  trustee  of  the  will, 


may  charge  profit  costs  for  work  done  for  the 
testator's  estate,  confers  a  beneficial  gift  or 
interest  on  him,  within  s.  15  of  the  Wills  Act, 
1837,  and  is  therefore  void  where  the  solicitor 
trustee  has  been  one  of  the  attesting  witnesses 
of  the  will.  Pooley,  In  re,  40  Ch.  D.  1 ;  5$ 
L.  J.,  Ch.  1  ;  60  L.  T.  73  ;  37  W.  R.  17— C.  A 

Charges  not  ■triotly  Professional.] — A  testa- 
trix by  her  will  appointed  her  solicitor  (who 
prepared  her  will)  one  of  her  two  executors  and 
trustees,  and,  stating  that  it  was  her  desire  that 
he  should  continue  to  act  as  solicitor  in  relation 
to  her  property  and  affairs,  and  should  "  make 
the  usual  professional  charges,"  expressly  directed 
that  notwithstanding  his  acceptance  of  the 
office  of  trustee  and  executor  he  should  be  en- 
titled to  make  the  same  professional  charges  and 
to  receive  the  same  pecuniary  emoluments  and 
remuneration  for  all  business  done  by  him,  and 
all  attendances,  time,  and  trouble  given  and 
bestowed  by  him  in  or  about  the  execution  of 
the  trusts  and  powers  of  the  will,  and  the 
management  and  administration  of  the  trust 
estate,  real  or  personal,  as  if  he,  not  being  him- 
self a  trustee  or  executor,  were  employed  by  the 
trustee  or  executor.  Under  this  direction  the 
solicitor-executor  delivered  bills  of  costs  which 
included  charges  for  all  business  done  by  him, 
whether  such  business  was  strictly  professional 
or  could  have  been  transacted  by  a  lay  executor 
without  the  assistance  of  a  solicitor  -.—Held, 
that  all  items  which  were  not  of  a  strictly  pro- 
fessional character  ought  to  be  disallowed. 
Chappie,  In  re,  Newton  v.  Chapman,  27  Ch.  D. 
584  ;  51  L.  T.  748  ;  33  W.  R.  336— Kay,  J. 

A  testator  by  his  will  authorised  any  taustee 
thereof,  who  might  be  a  solicitor,  to  make  the 
usual  professional  or  other  proper  and  reasonable 
charges,  for  all  business  done  and  time  expended 
in  relation  to  the  trusts  of  the  will,  whether  such 
business  was  usually  within  the  business  of  a 
solicitor  or  not.  On  the  further  consideration  of 
an  action  for  the  administration  of  the  testator's 
estate,  an  order  was  made  for  the  taxation  of  the 
costs,  charges,  and  expenses  of  the  trustees,  and 
it  was  directed  that  the  taxing-master  should 
have  regard  to  the  terms  of  the  will  as  to  the 
costs  of  the  trustees : — Held,  that  the  taxing- 
master  had  power  to  allow  to  a  trustee,  who  was  a 
solicitor,  the  proper  charges  for  business,  not 
strictly  of  a  professional  nature,  transacted  by 
him  in  relation  to  the  trust  estate.  Ames,  In 
re,  Ames  v.  Ttylor,  25  Ch.  D.  72  ;  32  W.  R.  2S7 
— North,  J. 

Remuneration.]  —  Where   estates  were 


devised  to  a  near  relative  and  a  family  solicitor 
until  B.  attained  the  age  of  twenty-eight  years, 
upon  trust  to  receive  the  rents  and  manage  the 
estate,  and  the  will  empowered  any  trustee  being 
a  solicitor  to  charge  and  be  paid  for  all  business 
done  by  him  as  a  solicitor  in  respect  of  such 
estate,  and  a  legacy  of  100Z.  was  given  to  each 
trustee,  and  the  trustees  managed  the  estates 
consisting  of  2,000  acres  partly  unlet  for  fifteen 
years,  paying  themselves  a  salary  of  100J.  a  year 
each  for  the  trouble  of  such  management, 
amounting  in  all  to  3,0002. ;  on  an  originating 
summons  on  behalf  of  the  tenant  for  life  and 
the  infant  remainderman  :— Held,  that  such  pay- 
ments of  200/.  a  year  were  unauthorised  by  the 
will ;  the  trustees  might  at  any  time  have 
applied  to  the  court,  but  they  neglected  to  <a> 


1781 


SOLICITOB— Costa. 


178* 


so ;  that  it  was  not  a  case  to  follow  the  coarse 
adopted  in  Marshall  v.  Uolloway  (2  Sw.  432), 
where  an  inquiry  was  directed  as  to  whether  any 
and  what  sum  should  be  allowed  to  the  trustees 
for  their  trouble.  The  salary  was  disallowed, 
and  an  order  made  for  payment  into  court,  with- 
out interest,  within  six  months.  Bedingjield, 
In  re,  Bedingfield  v.  If  Eye,  57  L.  T.  332— 
Kay,  J. 


3.    PAYMENT. 

Appropriation.] — A  solicitor  who  has  made 
disbursements  for  his  client,  and  who  has  re- 
ceded from  the  client  sums  paid  generally  on 
account,  but  sufficient  to  cover  those  disburse- 
ments, is  not  entitled  to  appropriate  the  sums  so 
received  to  costs  for  which  he  has  not  delivered 
a  bill,  in  order  that  he  may,  under  s.  17  of  the 
Solicitors  Act,  1870,  claim  interest  on  the  dis- 
bursements. Harrison,  In  re,  33  Ch.  D.  52  ;  55 
L.  J.,  Ch.  768 ;  65  L.  T.  72 ;  34  W.  B.  645  ;  50 
J.  P.  372— Per  Pearson,  J. 

To  Solicitor  of  Trustees.]— A  solicitor  dealing 
with  a  trustee  and  having  no  notice  of  any 
breach  of  trust  on  his  part,  is  entitled  to  deal 
with  him  on  the  footing  that  he  is  executing 
the  trust  and  doing  nothing  which  is  wrong,  and 
is  not  bound,  before  he  accepts  payment  out  of 
the  trust  estate,  to  call  upon  the  trustee  to  produce 
his  accounts,  and  satisfy  himself  that  he  has 
acted  properly.  To  preclude  a  solicitor  from 
accepting  payment  out  of  the  trust  estate,  there 
must  be  brought  home  to  him  knowledge  that  at 
the  time  when  he  accepted  it  the  trustee  had 
been  guilty  of  such  a  breach  of  trust  as  to  pre- 
vent him  altogether  from  resorting  to  the  trust 
estate  for  payment  of  those  costs,  and  that, 
in  tact,  such  a  payment  was  a  breach  of  trust. 
Blundell,  In  re.  Blundell  v.  Blundell,  40  Ch.  D. 
370 ;  57  L.  J.t  Ch.  730  ;  58  L.  T.  933  :  36  W.  R. 
779-Stixling,  J. 


4.    RECOVERY  OP. 

Solicitor  to  Trustees— Bights  of.]— A  solicitor 
employed  in  trust  business  is  the  solicitor  of  the 
trustees  personally,  and  has  no  direct  claim  on 
the  trust  estate  for  costs.  Staniar  v.  Evans,  34 
Ch.  D.  470  ;  56  L.  J.,  Ch.  581 ;  66  L.  T.  87  ;  35 
W.  R.  286— North,  J. 

An  executor  or  trustee  who  properly  employs 
a  solicitor  or  other  agent  to  assist  him  in  the 
execution  of  the  trust  enters  into  a  contract  in 
which  he  is  personally  liable,  but  he  is  entitled 
to  be  indemnified  out  of  the  trust  estate,  not 
merely  against  payments  actually  made,  bat 
against  his  liability,  so  that  he  has  a  right  to 
resort  to  the  trust  estate  in  the  first  instance  for 
making  the  necessary  payments  to  the  persons 
whom  he  employs,  though  he  may  commit  acts 
which  will  deprive  him  of  such  right.  Blundell, 
In  re,  Blundell  v.  Blundell,  supra. 

Aetiona — Promotion  of  Bill  Illegal.]— A  rural 
sanitary  authority,  being  unable  to  acquire  by 
purchase  land  and  water  rights  necessary  for  the 
purpose  of  procuring  a  water  supply  for  their 
district,  which  it  was  the  duty  of  the  authority 
to  do  under  the  Public  Health  Acts,  instructed 
their  solicitor  to  promote  a  bill  in  Parliament 


for  the  purpose  of  obtaining  powers  to  purchase 
the  land  and  water  rights  compulsorily  : — Held, 
that  the  rural  sanitary  authority  had  no  power 
to  promote  such  a  bill,  and  that  therefore  their 
solicitor  could  not  recover  his  costs  from  them. 
Clevertan  v.  St.  Germain's  Union,  56  L.  J.,  Q.  B. 
83— Stephen,  J. 

Order  XIV.— Taxation— Form  of  Order.  1 

— Where  an  action  is  brought  on  a  solicitor's  bill 
of  costs,  and  the  defendant  admits  his  liability 
but  desires  that  the  bills  should  be  taxed,  the 
proper  order  to  be  made  on  an  application  for 
liberty  to  sign  judgment  under  Ora.  XIV.  r.  1, 
is  as  follows: — "It  is  ordered  that  the  bill  of 
costs  on  which  the  action  is  brought  be  referred 
to  the  taxing-master,  pursuant  to  the  statute  ft 
&  7  Vict.  c.  73,  and  that  the  plaintiff  give  credit 
at  the  time  of  taxation  for  all  sums  of  money 
received  by  him  from  or  on. account  of  the 
defendant,  and  let  the  plaintiff  be  at  liberty  to 
sign  judgment  for  the  amount  of  the  master's 
allocatur  in  the  said  taxation,  and  costs  to  be 
taxed.  Smith  v.  Edwards,  22  Q.  B.  D.  10  ;  5& 
L.  J..  Q.  B.  227 ;  60  L.  T.  10 ;  37  W.  R.  112— 
C.  A. 

In  an  action  by  solicitors  on  an  untaxed  bill 
of  costs,  the  court,  on  motion  by  the  plaintiffs, 
under  Ord.  XIII.  r.  2,  referred  the  costs  for 
taxation,  subject  to  credits,  and  ordered  judg- 
ment to  be  entered  for  the  amount  to  be  certi- 
fied. Larkin  v.  M'Inerney,  16  L.  R.,  Ir.  246 — 
Ex.  D. 


Taxation,  whether  Condition  precedent.] 


— It  is  not  a  condition  precedent  of  a  solicitor's 
right  to  sue  a  guarantor  of  costs  to  be  incurred,, 
that  the  costs  should  have  been  taxed.  Moore  v» 
Walton,  1  C.  &  E.  279— Mathew,  J. 


Bight  of  Assignee  to  sign  and  sue.] — A 


solicitor  assigned  his  bill  of  costs  and  the  right 
to  recover  on  it,  and  the  assignee  gave  notice  of 
the  assignment,  and  delivered  the  bill  to  the 
party  to  be  charged,  inclosed  in  a  letter  signed 
by  himself.  After  the  expiration  of  a  month  he 
brought  an  action  in  his  own  name  on  the  bill  of 
costs : — Held,  that  the  plaintiff  was  an  assignee 
within  s.  37  of  the  Solicitors  Act,  1843,  and 
was  entitled  to  maintain  the  action.  Ingle  v. 
M'Cutchan,  12  Q.  B.  D.  618  ;  53  L.  J.,  Q.  B.  311 
— D. 


Signature,  Sufficiency   of.] — Where   a 


solicitor,  whose  right  hand  was  paralysed,  had 
his  hand  guided  over  his  name,  appended  to 
a  bill  of  coats,  by  a  clerk  who  had  written  the- 
name  : — Held,  to  be  a  sufficient  compliance- 
with  the  provisions  of  s.  37  of  the  Attorneys  and 
Solicitors  Act,  1843.  Angell  v.  Tratt,  1  C.  &  E. 
118 — Lopes,  J. 

Execution— Service  of  Order  and  Certificate.  ] 
— A.  obtained  a  common  order  for  taxation  of  the 
costs  of  his  former  solicitor  B.,  the  order  directing 
payment  by  A.  to  B.  of  the  amount  of  the  taxed 
costs  within  twenty-one  days  after  the  service  of 
the  order  and  of  the  certificate  of  taxation.  The 
order  and  certificate  were  served,  not  on  A.  per- 
sonally, but  on  the  solicitor  then  acting  for  nim 
in  the  taxation.  A.  failed  to  pay  the  amount 
within  twenty-one  days  after  service  of  the  order 
and  certificate  on  the  solicitor,  and  B.  applied 
fox  the  issue  of  a  writ  of  fi.  fa.  against  A.  fox- 


1783 


SOLICITOR— Costs. 


1784 


the  amount,  but  the  officer  of  the  court  refused 
to  issue  the  writ,  on  the  ground  that  A.  had 
not  been  personally  served  with  the  order  and 
certificate  :— Held,  that  B.  might  have  the  writ 
at  his  own  risk,  without  service  of  the  order  and 
certificate  on  A.  personally.  Solicitor,  In  re,  33 
W.  R.  131— Pearson,  J. 


5.    LIEN  FOR. 
a.  What  Debts. 

Hot  General  Debts— Statutory  Debt.]— Lien  is 
confined  to  what  is  due  to  the  solicitor  in  that 
character,  and  does  not  extend  to  general  debts. 
Accordingly  the  lien  of  the  solicitor  of  a  railway 
company  for  his  costs  does  not  include  costs 
incurred  in  relation  to  the  promotion  of  the 
company  before  incorporation,  such  costs  by  the 
usual  clause  in  the  act  having  been  made  a 
statutory  debt  to  be  paid  by  the  company. 
Galland,  In  re,  31  Ch.  D.  296 ;  65  L.  J.f  Ch. 
*78  ;  53  L.  T.  921 ;  34  W.  R.  158— C.  A. 

Debt  Barred  by  Statute.]— A  lien  is  not  barred 
by  the  fact  that  the  debt  in  respect  of  which  the 
lien  is  claimed  is  barred,  and  may  be  enforced 
tor  the  purpose  of  obstructing  an  administration 
■action,  if  the  debtor  declines  to  waive  his  rights 
tinder  the  statute.  Carter,  In  re,  Carter  v 
•Carter,  55  L.  J.,  Ch.  230 ;  53  L.  T.  630  :  34 
W.  R.  57— Kay,  J. 

b.    On  what  Property. 

Letters  of  Administration— Costs  of  Indepen- 
dent Proceedings.]— M.  and  her  sister  8.,  had 
employed  F.  as  their  solicitor  and  as  their  land 
*gent  over  a  joint  property ;  and  M.  was  in- 
debted to  him  in  the  amount  of  certain  costs  in 
1881,  when  S.  instituted  a  suit  against  him  in 
the  Chancery  Division  for  an  account  as  her  land 
*gent.  In  September,  1881,  F.  filed  an  account 
in  that  suit,  showing  that  there  was  a  consider- 
able balance  due  to  him  in  respect  of  the  rents. 
He  died  insolvent  in  August,  1882,  and  no  step 
was  taken  to  revive  the  suit  against  his  personal 
representatives.  The  costs  due  to  F.  had  been 
incurred  by  his  obtaining  for  M.,  in  1869,  a  grant 
of  administration  de  bonis  non  of  her  late  father, 
limited  to  receive  the  dividends  on  a  sum  of  stock 
standing  in  the  name  of  the  latter  as  executor  of 
a  will  under  which  the  dividends  were  payable  to 
*  tenant  for  life,  upon  whose  death  M.,  having 
become  beneficially  interested  in  the  principal, 
obtained  in  November,  1882,  an  order  from  the 
judge  of  the  Probate  Division  authorising  her  to 
apply  for  a  general  grant,  so  as  to  obtain  a  transfer 
of  the  stock  into  her  own  name.  M.  thereupon 
required  T.,  the  solicitor  for  F.'s  personal  repre- 
sentative, to  bring  in  the  limited  grant  for  can- 
cellation, which  he  declined  to  do,  claiming  a  lien 
upon  it  for  the  costs  due  by  M. :— Held,  that  T. 
was  entitled  to  the  lien  claimed.  Martin,  In 
goods  of,  13  L.  R.,  Ir.  312— C.  A. 

On  Documents  of  Company  —  Winding  up.] 

An  order  having  been  made  for  winding  up  a 
company,  applications  were  made  by  the  official 
liquidator  against  B.,  a  solicitor  employed  by  the 
company  before  the  winding-up,  that  B.  might 
be  ordered  to  deliver  up  the  following  docu- 
ments :  1.    The  share  register  and  minute  book, 


which  were  in  B.'s  hands  before  the  commence- 
ment of  the  winding-up  ;  2.   Other  documents 
which  came  to  B.fs  hands  after  the  presentation 
of  the  winding-up    petition,   but  before  the 
winding-up  order ;    3.    Documents  relating  to 
allotments  of  shares  which  had  come  to  B.'s 
hands  before  the  presentation  of  the  petition. 
B.  resisted  the  applications  on  the  ground  that 
he  claimed  a  lien.      The  court   ordered  that 
all  the  documents  should  be  delivered  to  the 
liquidator,  subject  to  the  lien,  if  any,  of  B.  :— 
Held,  on  appeal,  that  the  order  wis  right  as 
regarded  the  share  register  and  minute  book,  for 
that  the  directors  had  no  power  to  create  any  lien 
on  them  which  could  interfere  with  their  being 
used  for  the  purposes  of  the  company :— Held, 
also,  that  the  order  was  right  as  to  class  2 ;  for 
that  a  solicitor  could  not  assert  against  docu- 
ments which  came  to  his  hands  pending  the 
winding-up  any  such  lien  as  would  interfere 
with  the  prosecution  of  the  winding-up :— But 
held,  that  the  order  for  delivery  of  class  3  must 
be  discharged,  for  that  the  winding-up  order 
could  not  defeat  any  valid  lien  existing  at  the 
time  when  the   winding-up  petition  was  pre- 
sented. Belaney  v.  Ffrench  (8  L.  R.,  Ch.  918)  and 
Bovghton  v.  Bovghton  (23  Ch.  D.  169)  distin- 
guished. Capital  Fire  Insurance  Association,  h 
re,  24  Ch.  D.  408 ;  53  L.  J.,  Ch.  71 ;  49  L  T. 
697  ;  32  W.  R.  260— C.  A. 


Extent  of.] — The  solicitor  of  a  company 


cannot  acquire  a  lien  for  costs  upon  such  boob 
of  the  company  as  under  the  articles  of  the  com- 
pany or  the  provisions  of  the  Companies  Acts 
ought  to  be  kept  at  the  registered  office  of  the 
company.  Anglo-Maltese  Hydraulic  Dock  Gfc, 
In  re,  54  L.  J.,  Ch.  730  ;  52  L.  T.  841 :  33  W.K, 
652— Kay,  J. 

Costa  of  Interlocutory  Application.]— Costs 

awarded  upon  an  interlocutory  application  are 
subject  to  the  lien  of  the  solicitor  for  the  party 
to  whom  they  are  given,  and  cannot  be  attached 
by  a  judgment  creditor  of  the  party  to  the  pre- 
judice of  the  lien.  Cormick  v.  Rmayne,  22  L 
R.,  Ir.  140— Kx.  D. 


c.    In  what  Cases. 

Title-deeds  held  for  Mortgagor  and  Mortgage* 
—Costs  owing  by  Mortgagor.]— A  solicitor  act- 
ing for  mortgagee  as  well  as  mortgagor  in  the 
preparation  of  a  mortgage  thereby  loses  his  lien 
on  the  title-deeds  in  his  possession  for  costs  doe 
to  him  from  the  mortgagor,  even  though  the 
costs  were  incurred  prior  to  the  mortgage  and 
the  title-deeds  never  left  the  solicitor's  office, 
Quinn,  Ike  parte.  Nicholson.  In  re,  53  L.  J.,  Ch. 
302  ;  49  L.  T.  811  ;  32  W.  &.  296— C.  J.  B. 

Documents  belonging  to  Estate— Gosti  dw 
from  Testator,  Administrator  and  Administrato? 
de  bonis  non.]— There  is  a  privity  of  estate  be- 
tween an  administrator  or  executor  who  has 
partly  administered  and  a  subsequent  adminis- 
trator de  bonis  non,  and  the  latter  receives  the 
estate  with  all  the  liabilities  to  which  it  was  sub- 
ject in  the  hands  of  the  previous  administrator 
or  executor.  The  solicitor  of  a  testator  who  has 
afterwards  acted  for  his  legal  personal  repre- 
sentatives during  a  partial  administration  of  the 
estate,  and  has  unpaid  bills  of  costs  against  both 


1785 


SOLICITOR— Costs. 


1786 


the  testator  and  his  representatives,  is  entitled 
as  against  a  subsequent  administrator  de  bonis 
non,  to  a  lien  upon  documents  in  his  hands 
belonging  to  the  estate  for  all  the  costs  so  owing 
to  him.  Watson,  In  re,  53  L.  J.,  Cb.  305  ;  50 
L.  T.  205  ;  32  W.  R.  477— Pearson,  J. 

Where  Solicitor  is  alio  a  Mortgagee.] — Lands 
were  ordered  to  be  sold  on  the  petition  of  C,  an 
incumbrancer.      C,  who  had  previously  been 
solicitor  for  the  owner,  lodged  in  court,  under  an 
oider  and  subject  to  his  lien  for  costs  due  to  him 
by  the  owner,  several  deeds  and  documents  re- 
lating to  the  lands,  including  proposals   and 
counterparts  of  leases  under  which  the  tenants 
held.     These   deeds   and   documents    (as   the 
court  held)  had  come  into  the  hands  of  C, 
as  solicitor  for  the  owner.      C.  was  also  trans- 
ferree  of  a  mortgage  of  the  lands,  which  had 
been  executed  to  one  H.,  and  C.  had  acted  as 
solicitor  for  H.  and  the  owner  on  the  occasion 
of  the  mortgage.    The  owner  made  a  private 
offer  for  purchase  of  the  lands  which  was  ac- 
cepted, and  took    a   conveyance.    The  owner 
having  objected  to  the  claim  of  lien,  on  the 
grounds  that  the  documents  were  not  such  as  a 
purchaser  would  require,  and  further,  that  C. 
had  held  them  not  as  solicitor  but  as  mortgagee : 
—Held,  that  these  grounds  of  objection  were  un- 
sustainable, and  that  C.  was  entitled  to  his  lien  , 
on  the  deeds  and  documents  lodged  under  the 
order.    Semblc,  C.  would  not  have  lost  the  lien 
by  taking   a    mortgage    from    the    owner    for 
money  due  other  than  the  costs  secured  by  the 
lien.    Harvey's  Estate,  In  re,  17  L.  R.f  Ir.  65— 
Monroe,  J. 

Change  of  Solicitor.  ] — An  action  was  brought 
for  the  administration  of  the  estate  of  H.  by  his 
infant  grandchildren.  The  action  was  brought 
with  the  approval  of  the  infants'  father,  and  the 
next  friend  was  nominated  and  approved  by  him. 
The  father  having  died  pending  the  action,  the 
mother  of  the  infants,  who  was  also  their  testa- 
mentary guardian,  applied  to  be  appointed  next 
friend,  in  the  place  of  the  existing  next  friend, 
and  an  order  was  made  appointing  her.  She 
changed  the  plaintiff's  solicitors,  and  the  new 
solicitors  applied  to  the  old  solicitors  for  deli  very 
of  the  papers  in  the  action.  The  original  solici- 
tors refused  to  deliver  them  till  their  costs  were 
paid : — Held,  npon  a  summons,  that  the  old 
solicitors  must  deliver  them  over  to  the  new 
solicitors  without  prejudice  to  their  lien  for 
costs.  The  action  being  a  very  heavy  one,  and 
the  taxation  of  costs  not  likely  to  come  on  for 
some  years,  the  costs  of  the  original  solicitors 
were  under  the  special  circumstances  ordered  to 
be  taxed  at  once.  Hutchinson,  In  re,  Hutch  in- 
9t*n  v.  Norwood,  54  L.  T.  842  ;  34  W.  R.  637— 
North,  J. 

d.  Priority. 

Change  of  Solicitor.] — In  1875  A.  commenced 
an  action  against  a  colliery  company  on  behalf 
of  himself  and  all  other  debenture-holders. 
Shortly  afterwards  the  company  was  ordered  to 
be  wonnd  up,  and  the  official  liquidator 
was  appointed  receiver  and  manager  in  the 
action.  In  1881  the  plaintiff  A.  became  bankrupt, 
and  in  1882  B.,  another  debenture-holder,  was 
substituted  as  plaintiff  in  the  action.  An  order 
was  made  directing  A.'s  solicitor  to  hand  over 


the  papers  in  the  action  to  B.'s  solicitor,  without 
prejudice  to  his  lien,  if  any.  The  colliery  was. 
carried  on  by  the  receiver  and  manager  until 
1883,  when  it  was  sold  under  an  order  obtained 
in  the  action  by  an  auctioneer  thereby  appointed % 
The  purchase-money,  which  was  paid  into  court, 
was  insufficient  to  pay  the  balance  found  due  to 
the  receiver,  and  the  costs  of  all  parties.  The. 
solicitors  of  A.,  the  first  plaintiff,  claimed  that,, 
having  given  up  the  papers  without  prejudice  to 
their  lien,  they  were  entitled  to  be  paid  their 
costs  in  priority  to  all  parties  to  the  action  :— 
Held,  that  the  solicitors  of  a  plaintiff  in  a 
representative  action  for  whom  another  plaintiff 
was  substituted,  are  not  entitled  to  be  paid  their 
costs  out  of  a  fund  recovered  in  the  action  iu 
priority  to  the  new  plaintiff,  or  other  parties,  by 
reason  of  any  lien  they  might  have  upon  tho 
papers  handed  over  by  them  in  the  action v 
Batten  v.  Wedgwood  Coal  and  Iron  Co.,  28  Ch% 
D.  317  ;  54  L.  J.,  Ch.  686 ;  52  L.  T.  212 ;  3* 
W.  R.  303— Pearson,  J.  See  also  Wadsworth* 
Tn  re,  post,  col.  1788. 


e.  When  Lost. 

Discharge  of  Retainer  by  Solicitor.] — Where 
a  solicitor  has  discharged  himself  of  his  retainer 
from  acting  further  for  his  client,  he  will  be 
compelled,  if  the  client  has  resolved  to  further 
conduct  his  own  case  in  person,  to  deposit  tho 
papers  and  documents  in  the  cause  which  he  has. 
in  his  possession  in  the  custody  of  the  officer  of 
court  for  a  certain  period  in  order  that  the  client 
may  have  access  to  them,  although  the  solicitor 
has  still  a  lien  upon  such  papers  and  documents, 
for  his  unpaid  bill  of  costs.  Wontner,  In  re, 
Scheyer,  Ee  parte,  52  J.  P.  183— D.  Affirmed 
in  C.  A.,  W.  N.,  1888,  p.  136. 

Where  a  solicitor  applied  to  his  client  for 
funds  to  carry  on  an  action  under  a  special 
stipulation  in  the  retainer  that  such  fund* 
should  be  supplied,  and,  on  the  client  refusing 
to  pay,  declined  to  continue  the  suit  or  deliver 
up  the  papers  until  his  taxed  costs  were  paid :— 
Held,  that  this  was  a  discharge  by  the  solicitor, 
and  that  he  might  be  called  upon  to  deliver  to 
new  solicitors  the  papers  relating  to  the  matters 
in  question  in  the  action.  Robins  v.  G  aiding  ham 
(13  L.  R.,  Eq.  440)  followed.  Bluck  v.  Lover  hy \ 
35  W.  R.  232— D. 

Loss  of  Possession — Dissolution  of  Firm.]^ 
A  firm  of  solicitors  had  a  lien  for  costs  u}>on 
certain  documents  in  their  possession.  Tho 
partnership  was  dissolved,  and  the  firm  was 
reconstituted.  Shortly  after  dissolution,  the 
documents  in  question  were  removed  from  tho 
office  of  the  firm  by  a  former  partner  without 
their  consent  or  permission : — Held,  that  the 
lien  was  not  destroyed.  Carter,  In  re,  Carter 
v.  Carter,  55  L.  J.,  Ch.  230 ;  53  L.  T.  630  ;  34 
W.  R.  57— Kay,  J. 

Payment  into  Court  of  Security.] — The  court 
has  jurisdiction,  upon  payment  into  court,  or 
giving  security  for  a  sum  sufficient  to  answer  tho 
solicitor's  demand,  to  order  before  taxation 
delivery  up  by  a  solicitor  of  the  client's  papers, 
where  retention  by  the  solicitor  of  the  papers, 
on  which  he  claims  a  lien  would  embarrass  the 
client  in  the  prosecution  or  defence  of  pending 
actions: — Quaere  (per  Lindley,  L.J.),  whether 


1787 


SOLICITOR— CotU. 


1788 


the  jurisdiction  is  not  extended  by  Ord.  L. 
r.  8.  Oalland,  In  re,  31  Ch.  D.  296  ;  55 
L.  J.,  Ch.  478  ;  53  L.  T.  921 ;  34  W.  R.  158— 
€.  A. 

f .  Set  Off. 

Client  indebted  to  Trust  Estate.] — Where  a 
person,  at  the  time  of  an  order  being  made  for 
the  payment  of  his  costs  by  trustees  on  a  petition 
in  the  matter  of  a  trust,  is  indebted  to  the  trust 
estate,  although  the  amount  is  not  then  ascer- 
tained, he  cannot  get  any  of  such  costs  until  he 
has  paid  the  amount  due  from  him  to  the  trust, 
•and  the  trustees,  therefore,  can  set  off  the  costs 
payable  by  them  against  the  amount  due  from 
him.  His  solicitor  cannot  be  in  a  better  position 
than  he  is  himself,  and  has  no  lien  on  such  costs. 
Harrald,  In  re,  Wilde  v.  Watford,  53  L.  J.,  Ch. 
505  ;  51  L.  T.  441— C.  A.  Reversing  31  W.  R. 
318— Fry,  J. 

Secus,  as  to  the  costs  of  the  trustees  incurred 
in  recovering  such  amount.    lb. 

Cross-Judgments  in  Separate  Actions.] — The 

court,  upon  an  application  to  set  off  cross- 
judgments  in  distinct  actions,  are  entitled,  not- 
withstanding Ord.  LXV.  r.  14,  to  order  that  the 
set-off  shall  be  subject  to  the  lien  for  costs  of  the 
solicitor  of  the  opposite  party — for  assuming  that 
r.  14  applies  to  a  set-off  in  distinct  actions,  it 
leaves  the  court  a  discretion  to  allow  the  set-off, 
either  subject  to  or  notwithstanding  the  solicitor's 
lien,  and  if  it  has  no  application  the  court  have 
the  same  discretion  by  the  practice  previously  to 
Reg.  Hil.  Term,  1853,  r.  63,  which,  since  the 
repeal  of  that  rule  by  the  new  rules,  is  revived. 
Edward*  v.  Hope,  14  Q.  B.  D.  922  ;  54  L.  J., 
Q.  B.  379  ;  53  L.  T.  69  ;  33  W.  R.  672— 
C.  A. 

g.  Collusion. 

Compromise  of  Parties.] — In  an  admiralty 
action  for  wages  the  plaintiffs  and  defendants 
compromised  the  action  by  payment  to  each  of 
the  plaintiffs  of  a  certain  sum  in  discharge  of 
the  claim  and  costs.  The  plaintiffs  left  the 
country  without  paying  their  solicitors'  costs : — 
Held,  that  as  there  was  no  evidence  that  the 
parties  had  made  the  settlement,  with  the  inten- 
tion of  depriving  the  plaintiffs'  solicitors  of  their 
lien  for  their  costs,  the  defendants  ought  not  to 
.be  ordered  to  pay  the  plaintiffs1  taxed  costs. 
Brunsdon  v.  Altar d  (2  E.  &  E.  19),  Sullivan  v. 
Pearson,  Morrison,  Ex  parte  (4  L.  R.,  Q.  B.  153) 
approved.  TJie  Hope,  8  P.  D.  144  ;  52  L.  J.,  P. 
€3  ;  49  L.  T.  148 ;  32  W.  R.  269  ;  5  Asp.  M.  C. 
126— C.  A. 


6.  CHARGING  ORDERS. 

a.  Who  entitled  to. 

Solicitor  Discharged  before  Trial.] — A  soli- 
citor, through  whose  instrumentality  property 
has  been  recovered  or  preserved  in  an  action,  is 
entitled  under  the  28th  section  of  the  Attorneys 
and  Solicitors  Act,  1860,  to  a  declaration  of 
charge  upon  such  property,  although  his  client 
may  have  discharged  him  before  the  trial  of  the 
action.  In  such  a  case  his  charge  will  be  subject 
to  the  lien  for  costs  of  the  client's  solicitor  for 


the  time  being.  Wad*  wort  ft,  In  re,  Rhodes  t. 
Sugd-en,  29  Ch.  D.  51 7 ;  54  L.  J.,  Ch.  638 ;  53 
L.  T.  613  ;  33  W.  R.  558— Kay,  J. 

London  Agents.  ] — London  agents  of  a  country 
solicitor  have  no  right  to  a  charge  for  costs  as 
they  are  not  the  solicitors  employed  by  the  client 
Macfarlane  v.  Lister,  37  Ch.  D.  88 ;  57  L.  J., 
Ch.  92  ;  58  L.  T.  201— C.  A. 

Parties  to  Action  cannot  obtain  Order.]— The 
Attorneys  and  Solicitors  Act,  1860,  is  intended 
for  the  benefit  and  protection  of  solicitors  only, 
and  the  court  will  not  sanction  the  use  of  it  for 
the  purpose  of  enabling  parties  to  an  action  to 
charge  the  property  recovered  or  preserved  in 
the  action  with  the  payment  of  costs  for  which 
they  themselves  are  liable,  and  which  they  are 
able  to  pav.  Harrison  v.  ComtcaU  Mineral* 
Railway,  53  L.  J.,  Ch.  596  ;  50  L.  T.  452 ;  32 
W.  R.  748  ;  48  J.  P.  724— Kay,  J. 


b.  In  respect  of  what  Costs. 

In  an  Action.] — A  company  had  given  notice 
to  take  property  compulsorily,  the  price  to  be 
paid  was  ascertained  by  arbitration :— Held, 
that  the  solicitors  who  acted  for  the  vendor  in 
the  matter  were  not  entitled  to  a  charging  order, 
as  the  proceedings  were  not  in  a  court  of  justice. 
Maefarlanc  v.  Litter,  supra. 

What  allowed  on  Taxation.] — See  Hill,  In  rt, 
ante,  col.  1776. 

Proceedings  in  Court  where  Order  made.]— A 
solicitor  is  entitled,  under  39  &  40  Vict  a  44,  s.  3 
(equivalent  to  23  &  24  Vict.  c.  127,  s.  28),  to  a 
charge  for  costs  incurred  in  recovering  or  pre- 
serving property,  not  only  against  his  own  client 
but  against  all  persons  entitled  to  the  property. 
But  the  charging  order  must  be  confined  to  costs 
of  proceedings  in  the  court  where  it  is  made.  It 
docs  not  extend  to  miscellaneous  costs  or  costs  of 
proceedings  in  another  court  or  of  a  proceeding 
(e.  g.,  to  remit  an  action  to  an  inferior  court) 
which  has  been  abandoned.  Sheolin  v.  JFGmnf, 
17  L.  R.,  It.  271— Prob. 

Sale  of  Estate  by  order  of  Executrix— Sn- 
outrix  indebted  to  Estate.] — A  solicitor  was 
allowed  a  lien  on  the  proceeds  of  the  estate  of  * 
deceased  person,  realised  by  him  under  an  order 
of  the  court,  notwithstanding  that  a  balance 
was  due  to  the  estate  by  his  client  as  executrix, 
which  she  was  unable  to  bring  into  court.  White, 
In  re,  17  L.  R.,  Ir.  223— V.-C. 


c.  Property  Recovered  or  Preserved. 

Honey  Paid  into  Court] — An  action  having 
been  brought  to  recover  a  sum  of  7271.,  C,  one 
of  the  defendants,  counter-claimed  against  the 
plaintiff  for  the  sum  of  700J.  C.  presented  also  a 
petition  in  bankruptcy  against  the  plaintiff,  who 
was  ordered  to  bring  into  court  a  sum  of  300C 
The  action  and  the  proceedings  in  bankruptcy 
ultimately  were  referred  to  an  arbitrator,  who, 
by  his  award,  found  that  the  plaintiff  was  entitled 
to  judgment  in  the  action  for  167/.,  that  no  debt 
was  due  from  the  plaintiff  to  C,  and  that  the 
sum  of  300/.  must  be  paid  to  the  plaintiff  out  of 
the  Court  of  Bankruptcy.    The  plaintiff's  soli- 


1789 


SOLICITOR— Costs. 


1790 


titers  having  applied  to  the  Queen's  Bench 
Division  for  a  charging  order  on  the  sum  of  3001. 
for  their  costs  in  the  action : — Held,  that  they 
were  not  entitled  to  an  order.  Pierson  v.  Knuts- 
ford  Estates  Co.,  13  Q.  B.  D.  666  ;  53  L.  J.,  Q.  B. 
181  ;  32  W.  R.  451-  C.  A. 

Money  paid  into  court  as  a  security  for  the 
costs  of  a  party  to  an  action  is  not,  in  case  by  the 
success  of  the  party  it  becomes  payable  to  him, 
property  "  preserved  "  in  the  action  within  the 
meaning  of  the  Act.  Wadsworth,  In  re,  Rlwde* 
v.  Sugden,  29  Ch.  D.  517  ;  54  L.J  J.,  Ch.  638 ; 
52  L.  T.  613  ;  33  W.  R.  558— Kay,  J. 

Wife's  permanent  Maintenance.]  —  A  sum 
secured  to  the  wife  on  a  dissolution  of  marriage 
under  a.  32  of  the  Divorce  Act,  1867,  is  not 
alimony,  and  is  property  in  respect  of  which  the 
court  has  jurisdiction  to  grant  the  wife's  solicitor 
a  charging  order  for  costs  under  s.  28  of  the 
Solicitors  Act,  1860;  but  the  court  will  not 
grant  such  an  order  unless  the  solicitor  make 
out  a  prima  facie  case  of  inability  to  obtain  pay- 
ment in  any  other  way.  Harrison  v.  Harrison, 
13  P.  D.  180 ;  58  L.  J.,  P.  28 ;  60  L.  T.  39 ;  36 
W.  R.  748— C.  A. 

Partnership  Action— Compromise.] — An  action 
was  brought  for  the  dissolution  of  a  partnership 
and  the  winding-up  of  the  partnership  business. 
The  defendant  delivered  a  defence,  and  a  counter- 
claim claiming  certain  remedies  against  his  co- 
partners. At  the  trial  the  parties  agreed  to 
compromise  the  action,  including  the  counter* 
claim,  and  an  order  was  made  directing  the 
taxation  of  the  costs  of  all  parties,  and  staying 
all  proceedings  except  for  the  purpose  of  en- 
forcing the  agreement  and  that  order.  The 
agreement,  which  was  set  out  in  the  schedule  to 
the  order,  provided  for  the  dissolution  of  the 
partnership,  the  sale  of  the  partnership  property, 
and  that  all  costs  of  the  parties  should  be  paid 
ont  of  the  estate.  Subsequently  the  parties 
made  an  agreement  that  a  sale  of  a  certain  part 
of  the  partnership  property  should  be  rescinded  ; 
that  all  litigation  should  be  put  an  end  to,  and 
the  business  carried  on  as  before  the  action.  The 
defendant's  solicitor  applied  for  an  order  charging 
his  costs  on  the  shares,  both  of  the  plaintiffs  and 
defendant,  in  the  partnership  property,  or,  in 
the  alternative,  on  the  defendant's  share.  The 
defendant  was  willing  that  the  order  should  be 
made  as  regards  his  share  of  the  property : — 
Held,  that  the  solicitor  could  not  have  a  charging 
order  on  the  plaintiffs'  shares,  as  they  had  been 
in  no  way  recovered  or  preserved  through  his 
instrumentality.  Also,  that  the  persons  to  apply 
to  enforce  the  order  carrying  out  the  agreement 
were  the  parties  to  it,  and  the  solicitor  could  not 
Apply  under  it  to  obtain  payment  of  his  costs. 
Rowlands  v.  Williams,  53  L.  T.  135— Kay,  J. 
Reversed  in  G.  A. 

Costs  ordered  to  be  refunded.] — Costs  paid 
under  order  of  the  court  below  and  ordered  by 
the  Court  of  Appeal  to  be  refunded  are  property 
recovered  within  the  meaning  of  the  23  &  24 
Vict,  c.  127,  s.  28.  Guy  v.  Churchill,  35  Ch.  D. 
489  ;  56  L.  J.,  Ch.  670  ;  57  L.  T.  510 ;  35  W.  R. 
706— C.  A. 

An- action -was  dismissed  with  costs,  which 
were  taxed  at  298Z.  and  paid.  On  appeal  this 
judgment  was  reversed,  leave  was  given  to  amend 
the  pleadings,  and  the  action  was  ordered  to 


proceed  on  the  amended  pleadings,  and  the  de- 
fendants were  ordered  to  repay  to  the  plaintiffs  the 
costs  they  had  received,  and  to  pay  to  the  plaintiffs 
their  costs  of  the  appeal,  which  were  taxed  at 
165Z.  After  this  the  plaintiffs  became  bankrupt : 
—Held,  on  the  application  of  the  solicitors  who 
had  acted  for  the  plaintiffs  in  the  appeal,  that 
they  were  entitled  to  receive  from  the  defen- 
dants the  165 J.,  and  also  to  receive  from  the  de- 
fendants out  of  the  2982.  the  difference  between 
the  165/.  and  the  plaintiffs'  costs  of  the  appeal 
taxed  as  between  solicitor  and  client,  and  that 
the  balance  only  of  the  298Z.,  after  paying  the 
above  difference  and  the  costs  of  the  solicitors 
and  the  defendants  of  the  application,  was  to  be 
paid  to  the  trustee  in  the  bankruptcy.    lb. 

d.  Priority. 

Solicitor  discharged  before  Trial.]  —  The 
solicitor  who  had  acted  for  the  plaintiff  in  the 
institution  and  conduct  of  an  action  to  establish 
his  right  to  a  sum  of  money  was  discharged  by 
the  client  shortly  before  the  trial.  The  action 
was  continued  by  new  solicitors  on  behalf  of  the 
plaintiff,  and  judgment  was  delivered  in  favour 
of  the  plaintiff  ordering  the  defendant  to  pay 
him  the  money.  After  the  trial  the  former 
solicitor  obtained,  under  the  Attorneys  and 
Solicitors  Act,  1860,  s.  28,  a  declaration  of  charge 
upon  the  sum  recovered  "  subject  to  the  lien  of 
the  present  solicitors  of  the  plaintiff  upon  the 
said  sum  "  : — Held,  that  the  solicitor  who  was 
solicitor  at  the  time  the  fund  was  recovered  was 
entitled  to  a  first  charge  thereon  for  all  his 
taxed  costs  of  the  action,  and  subject  thereto 
that  the  discharged  solicitor  was  entitled  to 
such  lien  as  he  obtained  under  his  charging 
order.  Cormaek  v.  Beislcy  (3  De  G.  &  J.  157) 
followed.  Wadsworth,  In  re,  Rhodes  v.  Sua  den, 
34  Ch.  D.  155  ;  56  L.  J.,  Ch.  127  ;  55  L.  T. 
596  ;  35  W.  R.  75— Kay,  J. 

Landlord's  Claim  for  Sent] — A  solicitor  who 
has  obtained  an  order,  under  s.  28  of  the  Solicitors 
Act,  charging  property  preserved  with  payment 
of  his  taxed  costs,  takes  priority  over  a  landlord 
who,  before  the  charging  order,  might  have,  but 
had  not,  distrained  for  rent  upon  the  same  pro- 
perty. Suffield  and  Watts,  In  re,  Brown,  JEso 
parte,  20  Q.  B.  D.  693  ;  58  L.  T.  911 ;  36  W.  R. 
584  ;  5  M.  B.  R.  83— C.  A. 

Solicitor  acting  for  Mortgagor  and  Mort- 
gagee—  Direction  of  Client  as  to  Money.]  — 
While  a  suit  for  redemption  of  a  mortgaged 
estate  was  pending  the  plaintiff  mortgaged  his 
interest  in  the  estate  to  D.  The  plaintiff's 
solicitor  in  the  suit  acted  for  both  parties  in  this 
mortgage.  A  company  had  given  notice  to  take 
the  property  compulsorily,  but  the  price  had  not 
been  ascertained.  On  the  day  of  the  execution 
of  the  mortgage  to  D.  the  plaintiff  wrote  to  his 
solicitors  and  their  London  agents  a  letter  direct- 
ing them  to  pay  D.'s  mortgage  debt  out  of  the 
first  money  that  should  come  to  their  hands  from 
the  company,  and  the  solicitors  handed  this 
letter  to  D.  with  the  mortgage  deed.  After  this 
the  price  of  the  land  was  ascertained  by  arbitra- 
tion, in  which  arbitration  the  London  agents 
acted  as  the  plaintiff's  solicitors,  and  the  price 
was  carried  over  to  the  credit  of  the  redemption 
suit,  and  left  a  balance  after  paying  off  the 
original  mortgage  debt.    After  this  the  solicitors 


1791 


SOLICITOR. 


1792 


and  their  London  agents  applied  for  an  order 
charging  the  fund  with  their  costs  in  the  action 
and  in  the  arbitration.  The  court  made  an  order 
giving  them  a  charge,  and  decided  that  they 
were  entitled  to  priority  over  D.'s  mortgage  : — 
Held,  on  appeal,  that  the  mere  fact  that  the 
solicitors  acted  for  D.,  as  well  as  for  the  plaintiff, 
in  the  matter  of  the  mortgage,  did  not  disentitle 
them  to  priority.  Snail,  In  re  (6  Ch.  D.  105) 
distinguished.  But  held,  that  the  plaintiff's 
letter  was  a  direction  to  the  solicitors  that 
moneys  to  come  to  their  hands  from  the  property 
were  to  be  applied  in  the  first  place  in  paying 
D.,  and  that  they  having  forwarded  this  letter  to 
D.  were  bound  by  the  direction,  and  could  not 
set  up  a  claim  of  their  own  in  opposition  to  it, 
and  were  in  no  better  position  as  to  moneys  in 
court  than  as  to  moneys  which  actually  came  to 
their  hands,  and  that  their  charge  must  be  post- 
poned to  D.'s  mortgage.  Marfarlane  v.  Litter, 
37  Ch.  D.  88  ;  57  L.  J.,  Ch.  92 ;  58  L.  T.  201— 
C.  A. 

Garnishee  Summons.]  —  The  proceeds  of  a 
fi.  fa.,  issued  on  behalf  of  the  successful  plaintiff 
in  an  action,  were  attached  in  the  hands  of  the 
sheriff  by  a  garnishee  summons  from  a  county 
court  to  answer  a  judgment  obtained  against  the 
plaintiff  in  that  court.  The  plaintiffs  solicitor 
in  the  action,  who  had  received  notice  of  the 
service  of  the  garnishee  summons,  subsequently 
obtained  an  order  under  23  &  24  Vict.  c.  127, 
8.  28,  charging  the  fund  recovered  with  costs  of 
the  action  remaining  due  to  him  :— Held,  that 
such  order  was  rightly  made,  and  the  solicitor's 
claim  was  entitled  to  priority  over  the  claim  of 
the  judgment  creditor  of  the  plaintiff  under  the 
garnishee  summons.  Dallow  v.  Garrold,  14 
Q.  B.  D.  543  ;  54  L.  J.,  Q.  B.  76  ;  52  L.  T.  240 ; 
33  W.  R.  219— C.  A. 

Claim  by  Foreign  Consul  for  Payment  of 
Expense  of  sending  Crew   of  Ship  home.]  — 

Salvage  actions  were  brought  against  an  Italian 
vessel,  and  she  was  sold  by  order  of  the  court. 
After  the  salvors  had  been  remunerated,  the 
balance  of  the  fund  in  court  was  insufficient  to 
satisfy  the  costs  of  the  solicitors  who  had 
appeared  in  the  above  actions  for  the  parties 
interested  in  the  ship,  and  who  sought  to  enforce 
their  claim  for  such  costs  by  virtue  of  23  &  24 
Vict  c.  127,  s.  28,  as  well  as  the  claim  of  the 
Italian  consul  in  respect  of  the  expenses  of  send- 
ing the  crew  back  to  Italy.  It  was  proved  that 
by  the  law  of  Italy  such  expenses  and  the  keep 
or  the  master  and  crew  ranked  next  to  the 
salvage  payments  : — Held,  that  the  claim  of  the 
Italian  consul  had  priority  to  that  of  the  solicitors. 
The  Livietta,  8  P.  D.  209  ;  52  L.  J.,  P.  81 ;  49 
L.  T.  411  ;  5  Asp.  M.  C.  151— Hannen,  P. 

Partnership  Property— Bights  of  Creditors.] — 
Where  in  a  partnership  action  a  receiver  who 
was  appointed  at  the  instance  of  the  plaintiff, 
realised  the  assets  and  paid  into  court  a  fund  re- 
presenting the  proceeds  of  such  realisation : — 
Held,  that  the  solicitors  of  the  plaintiff  were 
entitled  to  a  lien  on  the  fund  for  their  costs 
in  priority  to  the  creditors  of  the  partnership. 
Hamer  v.  Giles  (11  Ch.  D.  942)  explained. 
Jaclison  v.  Smith,  Dig  by,  Ex  parte,  53  L.  J., 
Ch.  972  ;  51  L.  T.  72— Kay,  J. 

Semble,  the  court  in  such  a  case  would  not 


make  an  order  declaring  the  lien  in  the  absence 
of  the  creditors.  But  where  one  of  the  creditors 
was  present,  and  the  case  was  argued  on  his 
behalf,  the  court  appointed  him  to  represent  all 
the  creditors.    lb. 


e.  Raisins'  Costa. 

Direction  in  Order.] — In  the  absence  of  evi- 
dence that  the  plaintiff  was  himself  unable  to 
pay  the  costs,  the  order  ought  not  to  direct  the 
costs  to  be  raised  out  of  the  fund,  but  should 
merely  give  liberty  to  the  solicitors  to  apply  as 
to  raising  them.    lb. 

Time  for — Action  not  finished.]— A  decree  for 
administration  of  a  testator's  estate  was  made  at 
the  suit  of  an  infant  who  was  entitled  to  a  con- 
tingent reversionary  share  in  the  estate.  R.  was 
solicitor  for  the  plaintiff  and  for  J.  and  A,  two 
of  the  persons  entitled  to  the  other  shares.  After 
decree  he  ceased  to  be  solicitor  for  these  parties 
and  obtained  an  order  directing  taxation  of  hi* 
costs  as  their  solicitor  in  the  action,  including 
the  costs  of  the  application,  and  charging  their 
shares  in  the  estate  with  the  payment  of  such 
costs,  with  liberty  to  apply  to  have  them  raised. 
Before  the  cause  had  been  heard,  on  further  con- 
sideration, he  applied  to  have  the  costs  raised  by 
a  sale  of  the  shares  charged  : — Held,  that  the 
application  was  premature,  and  that  no  order 
ought  to  be  made  for  raising  the  costs  until 
the  cause  was  heard  on  further  consideration. 
Green,  In  re.  Green  v.  Green,  26  Ch.  D.  16; 
54  L.  J.,  Ch.  54  ;  50  L.  T.  513  ;  32  W.  B.  373— 
C.A. 


VII.    COUNTRY  SOLICITOR  AND  LOIDOK 

AGENT. 

Taxation  of  Costs.] — See  Xclson,  In  rt,  ante, 
col.  1761. 


Petition  —  Signature  by  Agent  of  Soli- 


citor.]— See  Scholen,  In  re,  ante,  col.  1754. 

Bill  of  London  Agent  by  Solicitor.]— 

See   Johnson    and     Weatherall,    In    re,  ante, 
col.  1756. 

Retainer  to  Country  Solicitor — Issue  of  Writ 
by  London  Finn.] — See  Wray  v.  Kemp,  ante, 
col.  1735. 

Service  of  Notice  of  Motion  and  Affidavit!  for 
Attachment  of  the  Person.] — See  Attachment. 

Honey  dne  to  Solicitor  by  Agent  —  Debtors 
Act.] — See  Liteh  field  v.  Jones,  ante,  coL  1743. 

Power  of  London  Agent  to  obtain  Ghargiiff 
Order.]  —  See  Marfarlane  t.  Lister,  ante, 
col.  1788.  • 


VIII.    CHANGE  OF  SOLICITORS. 

Taxation  of  Costs  of  Ineffectual  Sale.]— Sr 
Dean,  In  re,  Ward  v.  Holmes,  ante,  col.  17tJ9. 


1798 


SPECIFIC    PERFORMANCE. 


1794 


Charging  Order.]  —  See  Wadstoorth,  In  re, 
ante,  col.  1788. 

lien  for  Costa.]— See  Hutchinson,  In  re,  ante. 
coL1785. 


IX.    TOQUALTFIED  PBA0TITI0KEB8. 

Acting  aa  a  Solicitor— Attachment  for  Con- 
tempt.]— Every  person  who  acta  as  a  solicitor 
contrary  to  s.  2  of  6  &  7  Vict.  c.  73,  is  liable  to 
attachment  for  contempt  of  court  under  23  &  24 
Vict  c  127,  8.  26,  whether  he  so  acts  in  the 
name  of  any  other  person  or  in  his  own  name, 
unless  such  person  be  duly  qualified.  Although 
the  court  will  generally  adopt  the  findings  of  the 
master  aa  to  such  conduct,  his  report  is  not 
conclusive.  Simmons,  In  re,  15  Q.  B.  D.  348 ; 
53  L.  T.  147  ;  88  W.  R.  706  ;  49  J.  P.  740— D. 

Conviction.] — 8.,  a  partner  in  a  firm  of 

coal  merchants,  wrote  to  A.,  who  was  indebted 
to  the  firm  for  coals,  a  notice  signed  by  himself, 
Beaded,  "Final  notice  before  proceeding  in 
county  court.  Unless  you  pay  the  sum  of 
22s.  6d.  to  the  firm  of,  &c.,  I  shall  proceed 
against  you  under  the  above  act "  : — Held,  the 
justices  were  wrong  in  convicting  S.  of  pre- 
tending to  be  a  solicitor  contrary  to  37  &  38 
Vict  c.  68,  a.  12.  Symonds  v.  Incorporated 
Law  Society,  49  J.  P.  212— D. 

B.,  an  agent  who  used  to  issue  county  court 
summonses  for  people,  was  authorised  by  V.  to 
write  to  a  debtor  of  V.  for  payment  B.  sent  a 
notice  signed  by  himself  in  the  words,  "  County 
Courts.  Unless  the  sum  of  11.  16*.  6d.  due  to  V. 
is  paid  I  shall  proceed  against  you  under  the 
above  acts."  The  real  debt  due  to  V.  was  only 
1/.  6s.  B.  being  summoned  under  37  &  38  Vict, 
-c.  68,  s.  12 : — Held,  the  magistrate  was  right 
in  dismissing  the  summons,  as  there  was  no 
evidence  that  B.  pretended,  &c,  to  act  as  a 
aolicitor.  Incorporated  Lata  Society  v.  Bedford, 
49  J.  P.  216— D. 

Treatment  in  Prison  —  "Criminal  Pri- 

*onex.M  ] — A  person  committed  to  prison  under 
6  4  7  Vict  c.  73,  8.  32,  and  23  &  24  Vict.  c.  127, 
a.  26,  for  acting  as  a  solicitor,  though  not  duly 
qualified,  is  a  "  criminal  prisoner  "  within  28  &  29 
Vict  c.  126,  8.  4,  which  enacts  that  "  criminal 
prisoner  shall  mean  any  prisoner  charged  with 
or  convicted  of  a  crime."  Such  a  person  is  not 
•entitled  to  be  treated  as  a  misdemeanant  of  the 
first  class  by  40  k  41  Vict  c.  21,  s.  41.  Osborne 
v.  Milman,  18  Q.  B.  D.  471  ;  66  L.  J.,  Q.  B.  263  ; 
.66  L.  T.  808  ;  35  W.  R.  397  ;  51  J.  P.  437— C.  A. 
Reversing  16  Cox,  C.  C.  138— Denman,  J. 


SPECIAL   CASE. 

See  reft*,  sub  tit  Peactiof,  ante,  coL  1495. 


SPECIFIC  PERFORMANCE. 

1.  The  Contract. 

2.  In  what  Cases. 

3.  Jurisdiction  and  Practice. 


1.  The  Contract. 

Formation  of  Contract,  to.]— See  ante,  Con. 
tract. 

Variation  of  written  Agreement  by  oral 
Proviso.] — By  the  terms  of  a  written  agreement, 
J.  agreed  to  lease  to  W.  a  shop  and  premises 
which  are  to  be  built  at  a  cost  not  to  exceed 
400/.,  at  the  annual  rental  of  751.  J.  expended 
7502.  in  building  the  premises,  and  refused  to 
grant  a  lease  to  W.  at  the  annual  rent  of  751. 
In  an  action  by  W.  against  J.  for  specific  per- 
formance of  the  written  agreement,  the  defen- 
dant set  up  as  a  defence  a  contemporaneous  parol 
proviso  to  the  agreement,  to  the  effect  that,  if 
the  outlay  exceeded  400Z.,  the  rent  was  to  be 
raised  in  proportion  : — Held,  that,  as  such  parol 
proviso  did  not  contradict,  but  merely  explained 
the  terms  of  the  written  instrument,  evidence  of 
it  was  admissible ;  and,  as  the  evidence  proved 
that  the  plaintiff  had  agreed  to  such  parol 
proviso,  that  the  action  must*  be  dismissed. 
Williams  v.  Jones,  36  W.  R.  673— Kekewich,  J. 

Part  Performance— Parol  Agreement  aa  to 
Easement  of  Light.]— The  plaintiff  and  defen- 
dant, the  owners  of  adjoining  houses,  being 
about  to  rebuild,  entered  into  a  verbal  agreement 
that  the  plaintiff  should  pull  down  a  party-wall 
and  rebuild  it  lower  and  thinner,  and  that  each 
party  should  be  at  liberty  to  make  a  lean-to  sky* 
light  with  the  lower  end  resting  on  the  party* 
wall.  The  plaintiff  rebuilt  the  party-wall  and 
erected  a  lean-to  skylight  on  his  side  of  it  as 
agreed;  the  defendant  also  erected  a  skylight 
on  his  side,  but,  instead  of  a  lean-to,  so  shaped  it 
as  to  obstruct  the  access  of  light  to  the  plaintiff's 
premises  more  than  the  agreed  lean-to  skylight 
would  have  done : — Held,  that  the  effect  of  the 
agreement  was  to  give  to  each  party  an  easement 
of  light  over  the  other's  land  ;  and  that  the 
plaintiff,  having  performed  the  agreement  on  his 
part,  was  entitled  to  have  it  enforced  on  the 
part  of  the  defendant  A  mandatory  injunction 
was  accordingly  granted,  the  plaintiff  being  put 
under  a  corresponding  undertaking.  McManus  v 
Cooke,  35  Ch.  D.  681 ;  56  L.  J.,  Ch.  662 ;  66  L.  T 
900 ;  35  W.  R.  764  ;  61  J.  P.  708— Kay,  J. 

Damages.] — The  equitable  jurisdiction 

of  part  performance  cannot  be  made  use  of  for 
the  purpose  of  obtaining  damages  on  a  contract 
the  specific  performance  of  which  is  no  longer 
possible ;  neither  has  the  Judicature  Act,  1873 
extended  the  equitable  jurisdiction  so  as  to 
enable  the  court  to  give  damages  in  pases  where 
before  the  act  specific  performance*  would  not 
have  been  decreed.  Laxery  v.  Purssell,  39  Ch.  D. 
508  ;  67  L.  J.,  Ch.  670  ;  58  L.  T.  846 ;  87  W.  R, 
163— Chitty,  J. 

2.  In  what  Cabbs. 

Agreement  by  Purchaser  to  build  Wall  on 
Land  of  Vendor.] — Though  the  court  will  not,  aa 

3  M 


1795 


SPECIFIC    PERFORMANCE. 


1796 


a  rule,  specifically  enforce  contracts  to  build  or 
repair,  it  will  do  bo  in  cases  where  the  contract 
for  building  is  in  its  nature  defined.  Hepburn 
V.  Leather,  60  L.  T.  660— V.-C.  B. 

Preliminary  Building  Agreement]  —  The 
court  will  not  decree  the  specific  performance 
of  a  preliminary  building  agreement,  nor  give 
damages  for  the  breach  of  such  an  agreement. 
Wood  v.  Silcock,  50  L.  T.  251  ;  32  W.  R.  845— 
V.-C.  B. 

,  Agreement  for  Lease — Breach  of  Covenant  in 
Draft  Lease.  ] — Where  a  tenant  has  entered  into 
possession  of  premises  under  an  agreement  for  a 
lease  for  a  term  of  twenty-one  years,  such  agree- 
ment not  being  under  seal  and  consequently  void 
as  a  lease,  the  tenant  is,  until  payment  of  rent, 
merely  tenant  at  will,  and  the  landlord  may 
determine  the  tenancy  by  notice  without  assign- 
ing any  reason  for  bo  doing,  and  may  enter 
nnder  a  power  of  re-entry.  Where  any  rent  has 
been  paid  by  the  tenant,  the  landlord  is  estopped 
from  denying  the  existence  of  a  tenancy  from 
year  to  year  upon  such  of  the  terms  of  the  agree- 
ment as  are  applicable  to  such  a  tenancy.  The 
court  will  not  decree  specific  performance  of 
such  an  agreement  where  the  tenant  has  com- 
mitted a  breach  of  one  of  the  covenants  con- 
tained in  the  dr/rft  lease  which  has  been  signed 
as  approved  by  both  the  parties ;  and  the  matter 
is  in  no  wise  affected  by  s.  14  of  the  Conveyancing 
Act,  1881.  Coatsworth  v.  Johnson,  55  L.  J., 
Q;  B.  220  ;  54  L.  T.  520— C.  A. 

Misdescription  —  Underlease    described  '  as 

Lease.]  —  By  an  agreement,  dated  the  15th 
August,  1885,  and  made  between  eleven  persons 
described  as  the  committee  of  Verulam  Church 
and  A.  L.  Waring,  the  committee  agreed  to 
purchase  from  the  said  A.  L.  Waring  "his 
interest  in  the  lease  held  by  him  of  Verulam 
Church,  in  Kennington-lane,  for  the  sum  of 
5502/'  The  committee  having  failed  to  complete 
the  purchase,  A.  L.  Waring  brought  an  action  for 
Bpecific  performance.  On  the  2nd  November, 
1887,  judgment  was  given  in  the  said  action 
directing  the  usual  inquiry  whether  a  good  title 
could  be  made.  The  chief  clerk's  certificate, 
dated  22nd  March,  1888,  found  that  a  good  title 
could  be  made  to  a  derivative  term  of  ninety- 
three  and  a  quarter  years  from  the  25th  De- 
cember, 1824,  less  three  days : — Held,  that  the 
words  of  the  agreement  took  the  case  out  of 
the  authority  of  Madeley  v.  Booth  (2  De  G.  & 
Sm.  718),  and  that  the  plaintiff  was  entitled  to 
specific  performance.  Waring  v.  Scotland,  57 
L.  J.,  Ch.  1016  ;  59  L.  T.  132  j  36  W.  B.  756— 
North,  J. 

Agreement  to  Hake  a  Road— ^Approval  of 
Local  Board  —  Requirements  of  Local  Board 
inconsistent  with  Specification.] — The  defen- 
dants agreed  to  construct  a  road  over  land  of 
the  plaintiff,  who  was  to  grant  the  defendants 
a  right  of  way  over  the  road  when  completed, 
and  to  permit  it  to  be  declared  a  public  high- 
way by  the  local  board.  Defendants  were  to 
make  the  road  according  to  a  plan  and  specifica- 
tion already  approved  by  the  local  board,  and  to 
do  all  things  necessary  to  carry  out  a  resolution 
passed  by  the  board,  that  the  road  should,  six 
months'  after  completion  to  their  satisfaction,  be 
declared  by  the  board  a  public  highway;    The 


specification  provided  that  the  pathways  should 
be  gravelled,  and  did  not  provide  for  means  of 
lighting.  After  completion  of  the  road,  the 
board  were  advised  that  the  road  did  not  comply 
with  the  requirements  of  the  Public  Health  Act, 
1875,  8. 152,  inasmuch  as  it  was  not  flagged  nor 
provided  with  means  of  lighting,  and  they  with- 
held their  sanction  to  its  being  declared  a  public 
highway.  The  plaintiff  brought  an  action  claim- 
ing specific  performance  by  the  defendants  of 
the  agreement,  on  the  ground  that  they  had  not 
done  all  things  necessary  to  enable  the  board  to 
declare  the  road  a  public  highway,  and  claiming 
damages: — Held  that,  inasmuch  as  to  compel 
the  ■  defendants  to  construct  the  road  so  as  to 
conform  with  the  provisions  of  the  act  would 
be  to  enforce  performance  of  terms  at  variance 
with  the  agreement  and  entirely  outside  the  con- 
templation of  the  parties,  specific  performance 
could  not  be  ordered.  Whether  the  plaintiff 
would  have  been  entitled  to  damages  if  any 
had  been  shown,  quaere.  Saunders  v.  Bradina 
Harbour  Improvement  Company,  52  L.  T.  426— 
North,  J. 

Trustees  for  Sale — Depreciatory  Condition!— 
Breach  of  Trust.] — Trustees  for  sale,  in  No- 
vember, 1882,  put  up  land  for  sale  by  auction  as 
building  land  in  thirty-three  lots,  under  condi- 
tions (4)  providing  that  the  title  should  com- 
mence with  a  conveyance  dated  in  October,  1872, 
and  that  recitals  in  any  abstracted  document 
should  be  conclusive  evidence  ;  (6)  stating  that 
the  land  was  sold  subject  to  the  existing  tenan- 
cies, restrictive  covenants,  and  to  all  easements, 
quit-rents,  and  other  incidents  of  tenure  f  if  any) 
affecting  the  same,  and  providing  that  the  par- 
chasers  should  enter  into  covenants  to  perform 
the  covenants  and  indemnify  the  vendors.  There 
were  no  existing  tenancies  or  quit-rents,  and  the 
covenants  were  not  stated  so  as  to  show  only  the 
actual  liabilities  thereunder : — Held,  that,  having 
regard  to  the  nature  of  the  property  and  the 
large  number  of  small  lots,  the  limitation  of  title 
in  the  manner  provided  by  condition  (4)  was  not 
an  unreasonable  exercise  of  the  discretion  rested 
in  them  as  trustees  for  sale ;  but  that  the  6th 
condition,  suggesting  various  difficulties  which 
had.  in  fact  no  existence,  was  eminently  calcu- 
lated to  deter  intending  purchasers,  and  that  the 
trustees  could  not  obtain  the  assistance  of  the 
court  in  enforcing  the  contract.  The  court  re- 
fuses to  enforce  specific  performance  of  a  con- 
tract which  is  a  breach  of  trust,  equally  at  the 
suit  of  the  vendors  as  of  the  purchasers.  &*** 
v.  Flood,  28  Ch.  D.  686 ;  54  L.  J.,  Ch.  8T0 ;  52 
L.  T.  699  ;  33  W.  R.  315— C.  A. 


3.  Jurisdiction  and  Practice. 

Jurisdiction  of  County  Court.]—  See  Beg.  t. 
Westmoreland  County  Court  Judge,  ante,  coL 
547. 

Bectifloation   and   Specific    Performance.]  — 

Since  the  Judicature  Act,  1873,  the  court  his 
jurisdiction  (in  any  case  in  which  the  Statute  of 
Frauds  is  not  a  bar),  in  one  and  the  same  action, 
to  rectify  a  written  agreement,  upon  parol  evi- 
dence of  mistake,  and  to  order  the  agreement  to 
be  specifically  performed.  Olley  v.  Fisher,  34 
Ch.  D.  367  ;  56  L.  J.,  fch.  208  ;  65  L.  T.  807 ;  35 
W.  B.  301— North,  J. 


1797 


SPECIFIC   PEBFOKMANCE. 


1798 


Disentailing  Assurance— Fines  and  Beeoveries 

Act.  ]~-/The  jurisdiction  which  the  courts  of  equity 
had  prior  to 'the  Pines  and  Recoveries  Act  of  de- 
creeing specific  performance  of  a  contract  by  a 
tenant  in  tail  to  bar  the  entail  by  ordering  him 
to  levy  a  fine  or  suffer  a  common  recovery  for 
the  purpose,  and  enforcing  the  order  as  against 
the  tenant  in  tail  personally  by  the  process  of 
contempt,  has  not  been  excluded  by  s.  47  of  the 
Fines  and  Recoveries  Act,  and  the  court  can 
still  as  against  the  tenant  in  tail  himself  decree 
specific  performance  of  a  contract  to  execute  a 
disentailing  assurance,  although  the  contract  is 
not  enforceable  as  against  the  succeeding  issue 
in  taiL  Banket  v.  Small,  36  Gh.  D.  716  ;  56  L.  J., 
Ch.  832 ;  57  L.  T.  292 ;  35  W.  B.  765—0,  A. 

Waiver  of  Construction  of  Agreement] -~ 
Where  a  written  agreement  has  been  signed, 
though  it  is  in  some  cases  a  defence  to  an  action 
for  specific  performance  according  to  its  terms 
that  the  defendant  did  not  understand  it  accord- 
ing to  what  the  court  holds  to  be  its  true  con- 
struction, the  fact  that  the  plaintiff  has  put  an 
erroneous  construction  upon  it,  and  insisted  that 
it  included  what  it  did  not  include,  does  not  pre- 
clude the  plaintiff  from  waiving  the  question  of 
construction  and  obtaining  specific  performance 
according  to  what  the  defendant  admits  to  be  its 
true  construction.  Preston  v.  Luck,  27  Ch.  D. 
497  ;  33  W.  B.  317— C.  A. 

What  Plaintiff  must  Establish.]— A  plaintiff 
in  an  action  for  specific  performance  of  a  con- 
tract for  a  sale  of  land  must  prove  readiness  and 
willingness  on  his  own  part,  and  repudiation  of 
the  contract  on  the  defendant's  part  does  not 
relieve  the  plaintiff  from  this  obligation.  Ellis 
t.  Roger**  50  L.  T.  660— Kay,  J. 

Effect  of  Delay.] — On  a  sale  of  real  estate  the 
purchaser  paid  5001.,  which  was  stated  in  the 
contract  to  be  paid  "as  a  deposit,  and  in  part 
payment  of  the  purchase-money."  The  contract 
provided  that  the  purchase  should  be  completed 
on  a  day  named,  and  that  if  the  purchaser  should 
tail  to  comply  with  the  agreement,  the  vendor 
should  be  at  liberty  to  re-Bell  and  to  recover  any 
deficiency  in  price  as  liquidated  damages.  The 
purchaser  was  not  ready  with  his  purchase- 
money,  and  after  repeated  delays,  the  vendor 
re-sold  the  property  for  the  same  price.  The 
original  purchaser  having  brought  an  action  for 
specific  performance : — Held,  that  the  purchaser 
had  lost  by  his  delay  his  right  to  enforce  specific 
performance.  Howe  v.  Smith,  27  Ch.  D.  89  ;  53 
L.  J.,  Ch.  1055  ;  50  L.  T.  573  ;  32  W.  R.  802 ; 
48  J.  P.  773— C.  A. 

Damages — Judicature  Act — Lord  Cairns'  Act;] 
— Under  the  Judicature  Act,  1873,  the  court  has 
complete  jurisdiction  both  in  law  and  in  equity  ; 
so  that,  whether  the  court  could  in  a  particular 
case  grant  specific  performance  or  not,  it  could 
give  damages  for  breach  of  the  agreement. 
Elmore  v.  JHrrie,  57  L.  T.  333— Kay,  J. 

Under  Lord  Cairns'  Act,  the  plaintiff  had  first 
to  make  out  that  he  was  entitled  to  specific  per- 
formance before  he  could  get  damages  at  all ; 
now  he  may  come  to  the  court  and  say,  "  If  you 
think  I  am  not  entitled  to  specific  performance 
of  the  whole  or  any  part  of  the  agreement,  then 
give  me  damages."    lb. 

The  Judicature  Act,  1873,  s.  25,  sub-s.  11,  does 


not  extend  the  equity  jurisdiction  so  as  to  enable 
the  court  to  grant  damages  in  a  case  wherein 
before  the  act  damages  were  not  recoverable, 
e.g.,  in  the  case  of  an  oral  agreement  not  capable 
of  specific  performance  in  equity,  and  in  respect 
of  which,  in  an  action  at  law  lor  damages,  the 
defendant  could  have  successfully  pleaded  the 
Statute  of  Frauds.  Northumberland  Avenue 
Hotel  Company,  In  re,  Sully's  Case,  54  L.  T.-  76 
— Chitty,  J.  See  also  Lavery  v.  Puresell,  ante, 
col.  1794. 

—  Plaintiff  by  his  own  Act  unable  to  Per* 
form  Contract] — The  plaintiff  by  his  statement 
of  claim  claimed  specific  performance  of  a  con- 
tract by  whieh  he  agreed  to  sell,  and  the.  defen- 
dant agreed  to  purchase,  the  lease,  goodwill, 
fixtures,  and  stock-in-trade  of  a  business;  the 
plaintiff  alleging  that  he  was  and  always  had 
been  able  and  willing  to  perform  the  contract, 
bnt  that  the  defendant  refused  to  perform  the 
same.  The  statement  ef  claim  in  the  alternative 
claimed  100/.  as  liquidated  damages  fixed  by  the 
contract  for  the  refusal  to  perform  the  contract 
The  defence  set  up  certain  alleged  false  represen- 
tations, by  the  plaintiff  as  to  the  character  of 
the  business,  and  denied  that  the  plaintiff  was 
able  and  willing  to  perform  the;  contract  The 
plaintiff,  after  the  close  of  the  pleadings,  gave 
notice  to  the  defendant  that,  unless  the  defendant 
completed  the  purchase  within  a  week,  he  should 
re-sell  the  business,  which  he  accordingly  did* 
No  amendment  of  the  pleadings  was  then  asked 
for  by  the  plaintiff,  and  the  action  went  on  to 
trial.  At  the  trial  the  plaintiff's  counsel,  ad* 
mitting  that  the  claim  for  specific  performance 
must  be  abandoned,  sought  to  recover  the  100Z. 
as  liquidated  damages.  He  did  not  apply  for 
any  amendment  of  the  pleadings  : — Held,  that 
the  action  must  be  treated  as  one  for  specific 
performance  with  a  claim  for  damages  in  the 
alternative  as  a  substitute  for  specific  perform- 
ance, according,  to  the  practice  existing  before 
the  Judicature  Act  in  the  Court  of  Chancery, 
and  that  the  plaintiff,  having  by  his  own  act 
rendered  specific  performance  impossible,  was 
not  in  such  action  entitled  to  damages.  Hip- 
grave  v.  Case,  28  Ch.  D.  366 ;  64  L.  J.,  Ch.  399 ; 
62  L.  T.  242— C.  A. 

Delay  in  Giving  Possession  —  Loss  of 

Tenant  and  Deterioration.] — Two  houses,  stated 
in  the  particulars  to  have  been  "  recently  in  the 
possession  of  F.,"  were  put  up  by  the  plaintiffs 
(mortgagees  from  F.)  for  sale  by  auction,  and 
were  bought  by  the  defendant.  A  day  was  fixed 
for  completion  of  the  purchase,  when  the  rents 
or  possession  were  to  belong  to  the  purchaser. 
At  that  day  F.  was  still  in  possession,  and  re- 
mained so  until  he  was  turned  out  by  the  sheriff, 
more  than  a  month  after.  The  purchaser  had 
agreed  to  let  the  houses  to  a  tenant  as  from  a  day 
five  days  later  than  the  day  fixed  for  completion, 
but  the  tenant,  finding  that  he  could  not  have 
immediate  possession,  had  refused  to  take  the 
houses,  which  had  remained  unoccupied,  and 
had  also  been  damaged  by  the  removal  of  some 
fixtures  and  otherwise.  The  vendors  brought  an 
action  for  specific  performance  simply.  The  de- 
fendant counterclaimed  for  specific  performance 
with  compensation  : — Held,  that  the  purchaser 
was  entitled  to  damages  in  the  nature  of  com* 
pensation  for  loss  of  a  tenant,  and  that  the 
damages  would  be  the  amount  of  rent  lost,  and 

3  M  2 


1799 


SPECIFIC   PERFORMANCE. 


1800 


that  the  purchaser  was  entitled  to  damages  for 
the  deterioration  of  the  property.  Bain  v. 
Ibthergill  (7  L.  R.,  H.  L.  158)  distinguished. 
PhiUipt  v.  Silvester  (8  L.  R.,  Ch.  173)  followed 
and  discussed.  Royal  Bristol  Permanent 
Building  Society  v.  Bomash,  35  Ch.  D.  390 ;  56 
L.  J.,  Oh.  840 ;  57  L.  T.  179— Kekewich,  J. 

Delay— Bight  of  Way.]— The  purchaser 

of  a  piece  of  land  agreed,  as  part  of  the  consider- 
ation, to  grant  within  a  given  time  to  the  vendor 
a  right  of  way,  and  to  make  a  road  with  sewers 
leading  to  other  land  belonging  to  the  vendor. 
The  purchaser  was  unable  to  grant  the  right  of 
way  or  to  make  the  road  and  sewers  until  long 
after  the  time  fixed,  and  the  vendor  brought  an 
action  for  specific  performance  and  for  damages 
as  the  other  land  had  remained  unproductive 
until  the  road  was  made  : — Held,  that  judgment 
for  specific  performance  with  costs  must  be  given 
but  no  damages,  as  the  contract  was  for  a  sale  of 
real  estate ;  there  being  no  distinction  between 
a  contract  to  grant  a  right  of  way  and  make  a 
road  and  sewers,  and  a  contract  to  sell  real  estate. 
The  principle  on  which  in  such  a  case  damages 
would  be  assessed,  discussed.  Rowe  v.  London 
School  Board,  36  Ch.  D.  619  ;  57  L.  J.,  Ch.  179 ; 
67  L.  T.  182— Kekewich,  J. 

Defences— Sale  by  Auction — Fictitious  Bid- 
ding by  Stranger.] — It  is  no  defence  to  an  action 
for  specific  performance  brought  by  the  vendors 
against  the  purchaser  at  a  sale  by  auction,  that 
unknown  to  the  Tendon  a  fictitious  bidding  was 
made,  and  that  the  purchaser  was  thereby  in- 
duced to  give  more  than  he  had  previously  bid, 
which  was  more  than  the  reserved  price.  On  a 
sale  by  mortgagees  under  the  direction  of  the 
court  in  a  foreclosure  action,  the  mortgagees  are 
ordinary  vendors,  and  are  not  liable  for  the  acts 
of  other  parties  to  the  action.  Union  Bank  v. 
Muntter,  37  Ch.  D.  61  ;  67  L.  J.,  Ch.  124 ;  57 
L.  T.  877 ;  36  W.  R.  72 ;  52  J.  P.  453— Keke- 
wich, J. 

Non-mutuality.]— The  doctrine  of  non- 
mutuality  being  a  bar  to  specific  performance, 
does  not  apply  to  a  contract  which  to  the  know- 
ledge of  both  parties  cannot  be  enforced  by 
either  until  the  occurrence  of  a  contingent  event. 
Wylson  v.  Btmn,  34  Ch.  D.  669 ;  56  L.  J.,  Ch. 
865  ;  56  L.T.  192 ;  35  W.R.  406;  61  J.  P.  462— 
Kekewich,  J. 

Defendant  not  appearing  at  Trial  — Judg- 
ment.]— In  an  action  by  a  vendor  for  the  specific 
performance  of  an  agreement  to  purchase  real 
estate,  the  purchaser  having  accepted  the  title, 
but  having  failed- to  complete  at  the  time  fixed, 
there  being  a  condition  empowering  the  vendor, 
in  case  of  the  failure  of  the  purchaser  to  comply 
with  any  of  the  conditions  of  sale,  to  forfeit  the 
deposit  and  resell  the  property  : — Held,  that,  in 
lieu  of  judgment  for  specific  performance,  a 
declaration  may  be  made,  even  though  the 
defendant  had  not  appeared  to  the  writ,  that  the 
vendor  was  entitled  to  forfeit  the  deposit  and 
resell  the  property,  if  the  writ  has  claimed  such 
a  declaration  in  the  alternative.  But  held,  that 
the  order  should  direct  plaintiff  to  pay  the  costs 
of  the  action.  Stone  v.  Smith  (36  Ch.  D.  188) 
distinguished.  King  don  v.  Kirk,  37  Ch.  D.  141  ; 
67  L.  J.,  Ch.  328  ;  68  L.  T.  383  ;  36  W.  R.  430— 
Korth,  J, 


In  a  vendor's  action  to  enforce  a  contract  to 

Surchase  leaseholds,  the  defendant  delivered  a 
efence  admitting  that  he  was  unwilling  to 
complete  the  contract,  and  did  not  appear  at 
the  trial : — Held,  that  the  plaintiff  was  not  en- 
titled to  immediate  judgment  rescinding  the 
contract  and  forfeiting  the  deposit,  but  only  to 
the  usual  judgment  for  specific  performance. 
Stone  v.  Smith,  36  Ch.  D.  188  ;  56  L.  J.,  Ch.  871 ; 
56  L.  T.  333 ;  35  W.  R.  646—  Kekewich,  J. 

Ordering  Possession  to  be  given  up— Pay- 
ment into  Court.  J— The  Metropolitan  Board  of 
Works  gave  notice  to  the  plaintiff  of  their 
intention  to  acquire  houses  occupied  by  him 
under  their  statutory  powers.  They  afterwards 
agreed  to  purchase  the  houses,  on  a  representation 
by  the  plaintiff  that  he  held  them  as  a  lessee  for 
twenty-one  years.  The  board,  on  investigating 
the  title,  discovered  that  the  lease  could  be  pat 
an  end  to  by  the  landlord  or  the  tenant  at  the 
end  of  seven  or  fourteen  years,  and  on  that 
ground  claimed  an  abatement  in  the  purchase- 
money.  The  plaintiff  refused  to  make  the 
abatement,  and  brought  an  action  against  the 
board  for  specific  performance  of  the  agreement 
The  board  then  moved  in  the  action  for  an  order 
giving  them  possession  of  the  houses  on  their 
paying  into  court  the  amount  of  the  agreed 
price  with  interest,  and  Pearson,  J.,  made  the 
order : — Held,  on  appeal,  that  Pearson,  J.,  had, 
under  a  mistake,  acted  on  analogy  to  the  Land 
Clauses  Act,  1845,  but  that  he  had  no  power  to 
do  so  where,  as  in  this  case,  the  statutory  require- 
ments had  not  been  strictly  complied  with. 
Bygrave  v.  Metropolitan  Board  of  Worki,  32 
Ch.  D.  147  ;  55  L.  J.,  Ch.  602  ;  64  L. T.  889;  W 
J.  P.  788— C.  A, 

Refusal  to  obey  Order  of  Court— Exeeuuoi 
of  Lease.] — A  decree  was  made  for  specific 
performance  of  an  agreement  to  grant  a  new 
lease  of  certain  premises,  and  the  defendant  was 
ordered  to  execute  such  new  lease  to  the  plaintiff! 
The  defendant  having  refused  to  obey  the  order, 
the  plaintiff  moved  for  leave  to  issue  a  writ  of 
attachment  against  her: — Held,  that  there 
having  been  a  decree  for  specific  performance 
the  court  had  jurisdiction  under  s.  SO  of  the 
Trustee  Act,  1860,  to  appoint  a  person  to  execute 
the  lease  in  place  of  the  defendant,  and  the 
motion  was  directed  to  be  amended  accordingly. 
The  motion  having  been  amended,  an  order  was 
made  declaring  the  defendant  a  trustee  of  the 
premises  within  the  meaning  of  the  Trustee  Act, 
and  a  person  was  appointed  in  place  of  the 
defendant  to  execute  the  lease  to  the  plaintiff. 
Hall  v.  Bale,  51  L.  T.  226— Kay,  J.  See  now 
47  &  48  Vict.  c.  61,  s.  14. 

Rescission  after  Deer—    Costs.]— After 

a  decree  for  specific  performance  of  a  contract, 
if  the  party  in  whose  favour  the  decree  has  been 
made  is  unable,  or  neglects  to  carry  the  decree 
into  effect,  the  person  against  whom  the  decree 
was  made  is  entitled  to  an  order  for  rescission  of 
the  contract,  retaining  the  benefit  of  any  direc- 
tion as  to  costs  of  the  action,  but  not  to  damages 
or  to  occupation  rent.  He  is  also  entitled  to  the 
costs  of  obtaining  the  order  for  rescission. 
Henty  v.  Schroder  (12  Ch.  D.  666),  Foligno  ▼. 
Martin  (16  Beav.  586),  and  Watson  v.  Cox  (15 
L.  R.,  Bq.  219),  explained  and  followed.    Sued 


r 


1801 


STATUTES, 


1802 


t.  Meredith  (4  Gift.  207)  not  followed.  Hutch- 
(net  v.  Humphrey*,  54  L.  J.,  Ch.  650 ;  52  L.  T. 
€90 ;  83  W.  B.  563— North,  J. 

Conditional  Order  for  Payment— Delivery 

of  DeediJ —  The  decree  in  a  vendor's  action 
for  specific  performance  directed  that,  on  the 
plaintiff  executing  an  assignment  and  delivering 
to  the  defendant  the  deeds  and  writings  relating 
to  the  property,  the  defendant  should  pay  to  the 
plaintiff  the  amount  certified  to  be  due  for 
purchase-money,  interest,  and  costs.  The  plain- 
tiff executed  the  assignment,  and  tendered  the 
deeds  to  the  defendant  The  defendant  refused 
to  receive  the  deeds,  or  to  pay  the  money.  The 
plaintiff  moved  for  leave  to  issue  execution  for 
the  amount  certified  to  be  due,  on  the  ground 
that  be  had  performed  the  condition: — Held, 
that  the  plaintiff  must  deposit  the  executed 
asrignment  and  the  deeds  in  court,  and  on  such 
deposit  an  order  should  be  drawn  up  that  the 
defendant  should  pay  the  amount  certified  and 
the  costs  of  the  motion  within  four  days.  Bell 
v.  Denvir,  64  L.  T.  729  ;  34  W.  &  638— North,  J. 

Form   of  Order.] — Form  of   order  on 

farther  consideration  in  an  action  for  specific 
performance  by  vendor  where  the  defendant  has 
persistently  endeavoured  to  evade  the  judgment. 
Morgan  v.  Brisco,  31  Ch.  D.  216;  55  L.  J., 
Ch  194  ;  53  L.  T.  852  ;  34  W.  R.  193— V.-C.  B. 

Form  of  four-day  order  in  an  action  by  vendor 
for  specific  performance,  where  the  defendant 
has  persistently  endeavoured  to  evade  both  the 
judgment  and  the  order  on  further  consideration. 
Morgan  v.  Bruco,  32  Ch.  D.  192 ;  54  L.  T.  230  ; 
34  W.  B.  360— V.-C.  B. 

Costs.] — A  vendor  is  entitled  to  costs  of  action, 
if  he  showed  and  offered  a  good  possessory  title 
before  action,  though  it  is  not  proved  till  after- 
wards in  chambers.  Games  v.  Bo-nnor,  54  L.  J., 
Ch.  517  ;  33  W.  R.  64— C.  A 


SPECIFICATION. 

Of  Patents.]— See  Patent,  II. 

Of  Work.]— See  Building  Contract* 


STAGE    CARRIAGE. 


See  METROPOLIS,  IV. 


STAKEHOLDER. 

See  INTERPLEADER. 


STAMPS. 

See  REVENUE. 


STANNARIES. 

See  COURT. 


STATUTES. 

I.  Construction. 

1.  Generally,  1802. 

2.  Avoidance  of  Transaction*,  1806. 

3.  Nuisance  authorised,  1806. 

4.  Retrospective  Effect,  1807. 

5.  Repeal  when  Implied  and  otherwise^ 

1808. 

6.  Particular  Words,  1810. 

II.  Waivkb  or  Statutory  Rights,  1810. 
III.  Remedies  fob  Breach,  1811. 


L  CONSTRUCTION. 

1.  Generally. 

Effect  of,  on  Crown.]— Assuming  that  tha 
Lands  Clauses  Act  would  hare  been  read  into 
the  special  act  of  1855,  in  any  ordinary  case, 
can  this  be  done  in  the  case  of  these  commis- 
sioners, who  it  is  said  represent  the  Crown,  and 
are  in  fact  the  Crown,  the  Crown  not  being 
mentioned  in  the  Lands  Clauses  Act?  The 
Lands  Clauses  Act  is  brought  into  the  Act  of 
1855  by  reference,  and  the  legal  effect  of  its 
incorporation  is  this,  that  the  moment  the  later 
act  is  passed,  it  must  be  considered  that  the 
legislature  has  written  into  it  the  provisions  of 
the  Lands  Clauses  Act,  and.  if  that  be  so,  the 
Act  of  1855,  in  dealing  with  tnese  commissioners, 
if  they  are  to  be  taken  to  be  the  Crown,  is  deal- 
ing with  the  Crown  itself.  Therefore,  the  objec- 
tion that  the  Crown  is  not  mentioned  in  the 
Lands  Clauses  Act,  falls  to  the  ground.  Wood's 
Estate,  In  re,  Commissioners  of  Worhs  and 
Buildings,  Ex  parte,  31  Ch.  D.  607  ;  55  L.  J., 
Ch.  488  ;  64  L.  T.  145  ;  34  W.  R.  375— Per  Lord 
Bsher,  M.R. 

Application  of  English  Acts  to  foreign  Pro- 
perty.]— There  is  a  general  rule  of  construction 
that  English  actB  of  parliament,  when  dealing 

I  with  property  in  general,  are  not  to  be  treated 
as  applying  to  foreign  or  colonial  property.. 


1803 


STATUTES—CoawtructMm. 


1804 


Colquhoun  v.  Brooks,  19  Q.  B.  D.  406 ;  57  L.  J., 
Q.  B.  70 ;  57  h.  T.  448 ;  86  W.  B.  832— Per 
Wills,  J. 

Penal  Statute.] — If  yon  treat  the  Debtors  Act 
as  an  act  which  authorises  the  court  to  commit 
people  to  prison,  it  is  a  highly  penal  act  affect- 
ing the  liberty  of  the  subject,  and  yon  must 
construe  it  strictly.  Scott  v.  Morley,  20  Q.  B. 
D.  126  ;  B7  L.  J.,  Q.  B.  43  ;  67  L.  T.  219  ;  36 
W.  B.  67 ;  62  J.  P.  230 ;  4  M.  B.  R.  286— Per 
Lord  Esher,  M.B. 

Private  Act.]— A  private  act  of  parliament 
will  be  construed  more  strictly  than  a  public 
one  as  regards  provisions  made  by  it  for  the 
benefit  of  the  persons  who  obtained  it,  but, 
when  once  the  true  construction  is  ascertained, 
the  effect  of  a  private  act  is  the  same  as  that  of 
a  publio  act.  Altrvncham  Union  v.  Cheshire 
Lines  Committee,  15  Q.  B.  D.  697  ;  60  J.  P.  85 
— C.  A. 

Ordinary  Meaning— Application  to  Subject- 
matter.] — Whenever  you  have  to  construe  a 
statute  or  a  document  you  do  not  construe  it 
according  to  the  mere  ordinary  general  mean- 
ing of  the  words,  but  according  to  the  ordinary 
meaning  of  the  words  as  applied  to  the  subject- 
matter  with  regard  to  which  they  are  used, 
unless  there  is  something  which  obliges  you  to 
read  them  in  a  sense  which  is  not  their  ordinary 
sense  in  the  English  language  as  so  applied. 
JAon  Insurance  Association  v.  Tucker,  12  Q.  B. 
D.  186  ;  53  L.  J.,  Q.  B.  185  ;  49  L.  T.  764  ;  32 
W.  B.  646— Per  Brett,  M.B. 

Intention  of  Legislature.]— Where  the 

main  object  and  intention  of  a  statute  are  clear 
it  must  not  be  reduced  to  a  nullity  by  the  drafts- 
man's unskilfnlnesB  or  ignorance  of  law,  ex- 
cept in  the  case  of  necessity  or  the  absolute 
intractability  of  the  language  used.  Salmon  v. 
Buncombe,  11  App.  Cas.  627  ;  55  L.  J.,  P.  G.  69 ; 
66  L.  T.  446— P.  0. 

The  ordinary  meaning  of  the  words  used  in  a 
statute  must  be  adhered  to  unless  that  meaning 
is  at  variance  with  the  intention  of  the  legis- 
lature to  be  collected  from  the  statute  itself  or 
leads  to  some  absurdity  or  repugnance.  Pieter- 
maritzburg  (Mayor)  v.  Natal  Land  Company, 
13  App.  Cas.  478 ;  58  L.  J.,  P.  C.  82 ;  58  L.  T. 
895— P.  C. 

•  Injustice  modifying  plain  Language.]— 

A  very  strong  case  of  injustice  arising  from 
giving  the  language  of  an  Act  of  Parliament 
its  natural  meaning  must  be  made  out  before 
the  court  will  construe  a  section  in  a  way  con- 
trary to  the  natural  meaning  of  the  language 
used.  Hall,  In  re,  21  Q.  B.  D.  141 ;  57  L.  J., 
Q.  B.  494 ;  59  L.  T.  87  ;  .36  W.  B.  892— Per 
Cave,  J. 

Two  Meanings— One  causing  Injustice.]— If 
the  words  of  an  Act  of  Parliament,  though 
capable  of  an  interpretation  which  would  work 
manifest  injustice,  can  possibly  within  the 
bounds  of  grammatical  construction  and  reason- 
able interpretation  be  otherwise  construed,  the 
court  ought  not  to  attribute  to  the  legislature 
what  is  a  clear,  manifest,  and  gross  injustice. 
Plumstead  Board  of  Works  v.  Spackman,  13 
Q.  B.  B.  878 ;  53  L.  J.,  M.  G.  142 ;  51  L.  T.  760;  j 


49  J.  P.  132*~Per  Brett,  M.B.   8.  P.  Bes.* 
Tonbridge  Overseers,  per  Brett,  M.E.,  infra, 

— —  Powers  given  to  Local  Authority.}- II 
there  are  two  possible  constructions,  we  ought,  I 
think,  to  adopt  that  construction  which  it  baaed 
on  the  theory  that  the  legislature  only  gave 
such  powers  as  were  necessary  to  enable  the 
local  authority  to  carry  out  the  objects  of  the 
statute,  and  that  we  ought  not  to  presume  that 
the  legislature  intended  to  confer  upon  the  local 
authority  any  larger  powers  than  were  necessary. 
Wandsworth  Board  of  Works  v.  United  Td+ 
phone  Company,  13  Q.  B.  D.  904 ;  53  L.  J.,  Q.  B. 
457  ;  61  L.  T.  148  ;  32  W.  B.  776 ;  48  J.  P.  676 
— Per  Bowen,  LJF. 

Contradicting  other  Statutes.]— If  it  U 

found  that  reading  enactments  in  their  ordinary 
sense,  they  would  contradict  some  other  enact- 
ments, but  that  reading  them  in  a  sense  in 
which,  though  not  their  ordinary  sense,  they 
were  reasonably  capable  of  being  read,  they 
would  not  contradict  such  other  enactments, 
then  I  agree  that  they  should  be  read  so  that  all 
the  enactments  should  be  read  together  without 
contradicting  each  other.  Beg.  v.  Tosbridsi 
Overseers,  13  Q.  B.  D.  342  ;  53  L.  J.,  Q.  B.  489; 
51  L.  T.  199  ;  33  W.  B.  24 ;  48  J.  P.  740-P& 
Brett,  M.B. 

Argument   of  Inconvenience.]  — -  With 

regard  to  inconvenience,  I  think  that  it  is  a 
most  dangerous  doctrine.  I  agree  if  the  in* 
convenience  is  not  only  great,  but  what  I  may 
call  an  absurd  inconvenience,  by  reading  an 
enactment  in  its  ordinary  sense,  whereas  if  yo* 
read  it  in  a  manner  in  which  it  is  capable  of 
being  read,  though  not  its  ordinary  sense,  there 
would  not  be  any  inconvenience  at  all,  there 
would  be  reason  why  yon  should  not  read  it 
according  to  its  ordinary  grammatical  meaning. 
lb. 

Wresting  Words  when  superfluous.  ]— Nothing 
can  be  more  mischievous  than  the  attempt  to 
wrest  words  from  their  proper  and  legal  mean- 
ing, only  because  they  are  superfluous.  Hough 
v.  Windus,  12  Q.  B.  D.  229  ;  63  L.  J.,  Q.  B.  1©; 
50  L.  T.  312  ;  82  W.  B.  462;  1M.B.B,  1-Per 
Selborne,  L.C. 

Policy  of  a  Statute.]]— It  is  never  very  safe 
ground  in  the  construction  of  a  statute,  to  give 
weight  to  views  of  its  policy,  which  are  them- 
selves open  to  doubt  and  controversy.  Municipal 
Building  Society  v.  Kent,  9  App.  Cas.  273 ;  53 
L.  J.,  Q.  B.  290  ;  51  L.  T.  6  ;  32  W.  B.  681- 
Per  Selborne,  L.C. 

Interference  with  Common  Law  Bights.  T— 

The  fact  that  statutes  interfere  with  a  plaintiff's 
common  law  rights  is  no  reason  why  they  should 
be  construed  differently  from  any  other  Acts  of 
Parliament.  The  Warkwortk,  9  P.  D.  21 ;  53 
L.  J.,P.4;  49L.T.715;  32  W.  B.  479 ;  5  Asp. 
M.  C.  194— Per  Butt,  J. 

Injuring  Persons  without  Compensation.  }-jt 

is  a  proper  rule  of  construction  not  to  censtroe 
an  Act  of  Parliament  as  interfering  with  or  in- 
juring persons'  rights  without  compensation, 
unless  one  is  obliged  to  so  construe  it  Attorns** 
General  v.  Homer,  14  Q.  B.  D.  257;  64  I*.  J* 


1805 


STATUTES— Construction. 


1808 


<J.  B.  282  y  S3  W.  R.  93  J   49  I.  P:  326— Per 
Brett,  M.R. 

Applicable  to  particular  Trade.]— An  Act  of 
Parliament  which  is  made  applicable  to  a  large 
trade  or  business  should  be  construed,  if  possi- 
ble, not  according  to  the  strictest  and  nicest 
interpretation  of  language,  but  according  to  a 
reasonable  and  business  interpretation  of  it  with 
regard  to  the  trade  or  business  with  which  it  is 
dealing.  It  seems  to  me  impossible  reasonably 
to  hold  that  those  who  have  to  regulate  a  large 
trade  or  business  should  be  supposed  to  have 
made  an  enactment  which  would  prevent  that 
trade  or  business  from  being  carried  on,  unless 
you  are  forced  to  come  to  such  a  conclusion  by 
the  language.  The  Dwnelm,  9  P.  D.  171 ;  53 
L.  J.,  P.  81 ;  51  L.  T.214;  32  W.  R.970;  5  Asp. 
M.  C.  304r— Per  Brett,  M.R. 

Act  divided  into  Parts  with  Headings.]— 
Remarks  as  to  the  effect  upon  interpretation  of 
-dividing  an  Act  of  Parliament  into  parts  with 
appropriate  headings.  Union  Steamship  Com- 
pany of  New  Zealand  v.  Melbourne  Harbour 
Trusty  9  App.  Cas.  365  ;  63  L.  J.,  P.  C.  59  ;  50 
L.  T.  337— P.  C. 

Several  Words  followed  by  general  Expres- 
sion.]— 1  think  that,  as  a  matter  of  ordinary 
construction,  where  several  words  are  followed 
by  a  general  expression  which  is  as  much  appli- 
cable to  the  first  and  other  words  as  to  the  last, 
that  expression  is  not  limited  to  the  last,  but 
applies  to  all.  Great  Western  Railway  v. 
Swindon  and  Cheltenham  Railway,  9  App.  Cas. 
787  ;  53  L.  J.,  Ch.  1075  ;  51  L.  T.  798  ;  32  W.  R. 
357 — Per  Bramwell,  Lord. 

Creating  a  Casus  omissus.] — We  ought  not  to 
create  a  casus  omissus  by  interpretation  Bave  in 
some  case  of  strong  necessity.  Mersey  Docks 
t.  Henderson,  13  App.  Cas.  607  j  58  L.  J.,  Q.  B. 
152 ;  69  L.  T.  697 ;  87  W.  R.  449— Per  Lord 
Fitzgerald. 

Words  in  Later  Aot  following  those  in 
former  Ad] — Where  cases  have  been  decided  in 
courts  of  justice  on  particular  forms  of  words,  and 
acts  of  Parliament  use  those  forms  of  words 
Trhich  have  received  judicial  construction,  in  the 
absence  of  anything  in  the  acts  showing  that  the 
legislature  did  not  mean  to  use  the  words  in  the 
sense  attributed  to  them  by  the  courts,  the  pre- 
sumption  is  that  parliament  did  so  use  them, 
Barlow  v.  Teal,  15  Q.  B.  D.  403  ;  54  L.  J.,  Q.  B. 
400 ;  53  L.  T.  52— Per  Coleridge,  C  J. 

Impairing  Obligation  of  Person's  Contract.] — 
It  is  a  principle  of  law,  to  avoid,  if  possible,  a 
contraction  of  a  statute  which  would  enable  a 
person  to  defeat  or  impair  the  obligation  of  his 
own  contract  by  his  own  act.  Oowan  v.  Wright, 
18  Q.  B.  D.  201  ;  56  L.  J.,  Q.  B.  131 ;  35  W.  R. 
597— C.  A. 

Effect  of  Usage  and  Practioe.]— Neither  usage 
nor  long-continued  practice  can  have  any  effect 
upon  acts  of  parliament  relating  to  tolls. 
Jvortham  Bridge  Company  v.  Beg.,  55  L.  T.  759 
— Chitty,  J.  - 

Parol  Evidenee  to  Explain.]— Upon  the  trial 
of  an  information  at  the  suit  of  the  attorney- 


general  against  a  member  of  the  House  of 
Commons  for  voting  without  having  taken  the 
oath  of  allegiance  within  the  meaning  of  the 
Parliamentary  Oaths  Act,  1866*  as  amended  by 
the  Promissory  Oaths  Acts,  1868,  evidence  of  the 
practice  observed  in  the  House  of  Commons  as 
to  taking  the  oath  of  allegiance  is  admissible  for 
the  purpose  of  explaining  the  construction  of 
those  statutes.  Attorney' General  v.  Bradlaugh, 
14  Q.  B.  D.  667 ;  54  L.  J.,  Q.  B.  205 ;  52  L.  T. 
689 ;  83  W.  R.  673—C.  A. 


2.  Avoidance  of  Transactions. 

Purpose  of  Act  must  be  considered.] — Clauses 
in  statutes  avoiding  transactions  or  instruments 
are  to  be  interpreted  With  reference  to  the  pur- 
pose for  which  they  are  inserted,  and,  when 
open  to  question,  are  to  receive  a  wide  or  a 
limited  construction  according  as  the  one  or  the 
other  will  best  effectuate  the  purpose  of  the 
statute.  Byrne,  Ex  parte,  Burdett,  In  re,  20 
Q.  B.  D.  314  ;  57  L.  J.,  Q.  B.  263  ;  58  L.  T.  708  ; 
36  W.  R.  345  ;  5  M.  B.  R.  32— C.  A. 

Act  passed  subsequently.] — A  building  agree- 
ment provided  that  A.  should  build  houses  on 
land  within  a  specified  time,  and  that  on  their 
completion  B.  would  grant  to  A.  leases  of  them. 
A.  agreed  to  pay  a  specified  rent  to  B.  from  the 
date  of  the  agreement  to  the  expiration  of  the 
leases.  The  nouses  were  not  built  by  the  speci- 
fied time,  and  before  they  were  built,  an  act  of 
parliament  rendered  their  erection  illegal :-~ 
Held,  that  A.  was  not  relieved  from  his  liability 
to  pay  the  rent  under  the  agreement.  Gibbons 
v.  Chambers,  1  C.  &  £.  577— Day,  J. 

Contracts  rendered  illegal.]— See  Contract. 
III.  3. 


3.  Nuisance  Authorised. 

In  what  Cases.] — A  railway  company  were  by 
their  act  authorised,  among  other  things  to 
carry  cattle,  and  also  to  purchase  by  agreement 
(in  addition  to  the  lands  which  they  were  em- 
powered to  purchase  compulsorily)  any  lands 
not  exceeding  in  the  whole  fifty  acres,  in 
such  places  as  should  be  deemed  eligible  for  the 
purpose  of  providing  additional  stations,  yards, 
and  other  conveniences  for  receiving,  loading,  or 
keeping  any  cattle,  goods,  or  things  conveyed  or 
intended  to  be  conveyed  by  the  railway,  or  for 
making  convenient  roads  or  ways  thereto,  or  for 
any  other  purposes  connected  with  the  under- 
taking which  the  company  should  judge  requi- 
site. The  company  were  also  empowered  to  sell 
such  additional  lands  and  to  purchase  in  lieu 
thereof  other  lands  which  they  should  deem 
more  eligible  for  the  aforesaid  purposes,  and  so 
on  from  time  to  time.  The  act  contained  no 
provision  for  compensation  in  respect  of  lands 
so  purchased  by  agreement.  Under  this  power 
the  company,  some  years  after  the  expiration  of 
the  compulsory  powers,  bought  land  adjoining 
one  of  their  stations  and  used  it  as  a  yard  or 
dock  for  their  cattle  traffic.  To  the  occupiers  of 
houses  near  the  station  the  noise  of  the  cattle 
and  drovers  was  a  nuisance  which,  but  for  the 
act,  would  have  been  actionable.  There  was  no 
negligence  in  the  mode  in  which  the  company 
conducted  the  business : — Held,  that  the  pur* 


1807 


STATUTES— Construction. 


1806 


poee  for  which  the  land  was  acquired  being  ez- 

Sresslv  authorised  by  the  act,  and  being  inci- 
ental  and  necessary  to  the  authorised  use  of  the 
railway  for  the  cattle  traffic,  the  company  were 
authorised  to  do  what  they  did,  and  were  not 
bound  to  choose  a  site  more  convenient  to  other 
persons ;  and  that  the  adjoining  occupiers  were 
not  entitled  to  an  injunction  to  restrain  the 
company,  Metropolitan  Asylum  District  v. 
Hill  (S  App.  Cas.  198)  distinguished.  London, 
Brighton,  and  South  Coast  Railway  v.  Truman, 
11  App.  Cas.  45  ;  65  L.  J.,  Ch.  354  ;  54  L.  T. 
250  ;  34  W.  R.  657 ;  50  J.  P.  388— H.  L.  (E.) 

Statutory  Power  to  create  Huisance.]— 

The  town  of  H.  having  been  drained  for  a  long 
time  into  a  river,  the  company  obtained  a  local 
act  to  make  a  sewer  and  intercept  the  sewage  and 
purify  it  and  then  discharge  the  effluent  water 
Into  the  river ;  all  inhabitants  of  H.  being  at  the 
lame  time  prohibited  from  draining  direct  into 
the  river.  The  act  provided  that  the  N.  company 
should  not  discharge  sewage  water  into  the 
river  until  after  being  purified  by  the  best  known 
process: — Held,  that  the  statutory  provisions 
superseded  all  common  law  rights,  that  the  N. 
company  were  entitled  to  discharge  the  effluent 
water  after  being  purified  by  the  best  process, 
and  that  no  action  lay  against  the  N.  company 
for  polluting  the  river,  though  the  process  was 
Still  imperfect.  Lea  Conservancy  Board  v.  Hert- 
ford (Mayor),  48  J.  P.  628  ;  1  C.  &  E.  299— 
Williams,  J. 


4.  Retrospective  Effect. 

General  Sule.] — Primft  facie  the  general  rule 
of  construing  Acts  of  Parliament  is  that  they 
are  prospective,  and  you  are  not  to  interfere 
with  rights  unless  yon  find  express  words  to  that 
effect.  Allhusen  v.  Brooking,  26  Ch.  D.  564  ;  53 
L.  J.,  Ch.  520 ;  51  L.  T.  57 ;  32  W.  R.  667— 
Chitty,  J. 

When  Words  not  Plain.] — The  rule  of  con- 
struction, which  is  only  available  when  the 
words  of  an  act  of  parliament  are  not  plain,  is 
embodied  in  the  well-known  maxim  "  nova  con- 
Btitutio  futuris  temporibus  formam  imponere 
debet  non  praeteritis,  that  you  ought,  except  in 
special  cases,  to  construe  the  new  law  so  as  to 
interfere  as  little  as  possible  with  vested  rights 
or  vested  dispositions  of  property.  It  seems  to 
me  that  even  if  an  act  is  to  a  certain  extent  re- 
trospective, and  even  if  construing  a  section 
which  is  to  a  certain  extent  retrospective,  we 
ought  nevertheless  to  bear  in  mind  that  maxim 
as  applicable  whenever  we  reach  the  line  at 
which  the  words  of  the  section  cease  to  be  plain. 
Jteid  v.  Reid,  31  Ch.  D.  102  ;  65  L.  J.,  Ch.  294  ; 
64  L.  T.  100  ;  34  W.  R.  333— Per  Bowen,  LJ. 

When  a  statute  renders  necessary  to  the 
validity  of  a  transaction  a  condition  with  which 
it  is  impossible  that  the  parties  to  the  transaction 
could  comply  at  the  time  when  the  statute  comes 
into  operation,  the  statute  cannot  apply  to  ante- 
cedent transactions,  unless  the  legislature  have 
plainly  expressed  their  intention  that  it  is  to 
apply  to  them.  Todd,  Bob  parte,  Ashcroft,  In  re, 
infra — Per  Fry,  L  J". 

Statute  Repealing  former  Statute  and  in  part 
fte-enacting  it.] — In  determining  whether  any 


provision  of  an  act  was  intended  to  he  retrospec- 
tive or  not,  I  think  the  consequences  of  holding 
that  it  is  not  retrospective  must  be  looked  at, 
and  to  my  mind  it  is  inconceivable  that  the 
legislature,  when,  in  a  new  act  which  repeals  a 
former  act,  they  repeat  in  so  many  words  certain 
provisions  of  the  repealed  act,  should  have  in- 
tended that  persons  who,  before  the  passing  of 
the  new  act  had  broken  the  provisions  of  the  old 
act,  should  entirely  escape  the  consequences  of 
their  wrongdoing  by  reason  of  the  repeal  of  the 
old  act.  I  think  it  is  a  wholesome  doctrine  to 
hold  that  the  section  is  retrospective  so  far  as  it 
is  a  repetition  of  the  former  enactment,  hut  that 
it  is  not  retrospective  so  far  as  it  is  new.  Toddy 
Ex  parte,  Ashcroft,  In  re,  19  Q.  B.  D.  195;  56 
L.  J.,  Q.  B.  431  ;  57  L.  T.  836;  35  W.R.676;  4 
M.  B.  R.  209— Per  Esher  (Lord),  M.R. 


with  Procedure.] — Where  an  enact- 
ment deals  with  procedure  only,  unless  the  con- 
trary is  expressed,  the  enactment  applies  to  all 
actions,  whether  commenced  before  or  after  the 
passing  of  the  act.  Singer  v.  Hasson,  50  L.  T. 
326— D. 


6.  Repeal  when  Implied  Aim  Otherwise. 

Implied  Repeal— Special  by  General  Act]— 
Where  an  act  of  Parliament  dealing  in  a  special 
way  with  a  particular  Bubject-matter  is  followed 
by  a  general  act  dealing  in  a  general  way  with 
the  subject  of  the  previous  legislation,  general 
words  in  the  general  act  are  not  to  be  held  as 
repealing  the  prior  special  legislation,  unless  the 
general  act  contains  some  reference  to  the 
special  legislation,  or  unless  the  general  act 
cannot  be  given  effect  to  without  such  a  repeal 
Smith,  In  re,  Clements  v.  Ward,  35  Ch.  D.  589; 
56  L.  J.,  Ch.  726  ;  66  L.  T.  850 ;  35  W.  R.  614 \ 
51  J.  P.  692— Stirling,  J. 

It  does  not  necessarily  follow  that  a  previous 
special  act  is  to  remain  standing,  notwith- 
standing the  general  provisions  of  a  subsequent 
general  act,  if  it  is  found  on  the  consideration 
of  the  act  or  acts  that  such  is  not  the  intention 
of  the  legislature.  Williams,  In  re,  Jones  r. 
Williams,  36  Ch.  D.  573  ;  57  L.  J.,  Ch.  264 ;  5T 
L.  T.  756 ;  36  W.  R.  34— Per  North,  J. 

Where  there  are  general  words  in  a  later  act 
capable  of  reasonable  and  sensible  application 
without  extending  them  to  subjects  speciallj 
dealt  with  by  earlier  legislation,  you  are  not  to 
hold  that  earlier  and  special  legislation  to  be  in- 
directly repealed,  altered,  or  derogated  from, 
merely  by  force  of  such  general  words,  without 
any  indication  of  a  particular  intention  to  do  so. 
Seward  v.  The  Vera  Cruz,  10  App.  Cas.  68;  54 
L.  J.,  P.  9  ;  52  L.  T.  474  ;  33  W.  R.  477  ;  5  Asp. 
M.  C.  386— Per  Selborne,  L.  C. 

Burden  of  Procl]— When  a  statute  is 

not  expressly  repealed,  the  burden  is  on  those- 
who  assert  that  there  is  an  implied  repeal  to 
show  that  the  two  statutes  cannot  stand  con- 
sistently the  one  with  the  other.  Lybbt  v.ifrfi, 
29  Ch.  D.  15 ;  62  L.  T.  636— Chitty,  J. 

General    Provisions  —  Land    Draimag* 


Charge— Priority.]— The  General  Land  Drain- 
age and  Improvement  Company's  Act*  1849,  and 
the  Lands  improvement  Company's  Act,  1853, 
each  contained  a  section  which  provided  thai* 


1809 


STATUTES— Waiver  of  Statutory  Eights. 


1810 


upon  the  final  order  or  certificate  of  the  In- 
closure  Commissioners  and  the  execution  of  the 
improvements,  the  company  should  have  a  first 
charge  upon  the  inheritance  of  the  improved 
lands  in  priority  over  every  other  then  existing 
or  future  charge.  The  company  of  1853  haying 
executed  improvements  of  land  already  subject 
to  a  charge  in  favour  of  the  company  of  1849, 
contended  that  the  latter  charge  was  displaced 
by  theirs  : — Held,  that  the  two  sections  were  not 
irreconcilable,  and  that  the  charge  which  was 
first  in  order  of  time  was  entitled  to  priority. 
Pollock  v.  Lands  Improvement  Company,  37  Ch. 
D.  661 ;  57  L.  J.,  Ch.  863  ;  58  L.  T.  374  ;  36  W. 
R.  617— Chitty,  J. 

Qualified  Repealing  Section  considered.]— It 
has  been  urged  that  the  power  to  order  service 
out  of  the  jurisdiction  which  was  conferred  by 
the  Acts  2  Will.  4,  c.  33,  and  4  &  5  Will.  4,  c.  84, 
is  still  subsisting,  notwithstanding  the  repeal  of 
those  acts,  and  no  doubt  the  act  46  &  47  Vict. 
c.  49,  and  each  of  the  repealing  acts,  contains  a 
laving  clause,  which  provides  that  the  repeal  is 
not  to  affect  any  jurisdiction  established  by  any 
enactment  repealed  by  the  act  But  where,  as 
here,  we  have  a  code  of  rules  providing  for  ser- 
vice out  of  the  jurisdiction,  I  think  it  would  be 
wrong  to  hold  that  by  virtue  of  this  saving 
clause  a  further  jurisdiction  exists  under  a 
statute  which  has  been  repealed.  Busfisld,  In 
re,  Whaley  v.  Butfield,  32  Ch.  D.  123  ;  55  L.  J., 
Ch.  407 ;  64  L.  T.  220 ;  34  W.  R.  372— Per 
Cotton,  L.J. 

I  should  like  to  refer  to  the  great  difficulty  of 
interpreting  what,  if  any,  limitation  can  be  put 
upon  sub-s.  (b)  of  s.  5  of  the  Statute  Law  lie- 
vision  Act,  1883.  I  have  never  been  able  to 
attach  any  definite  meaning  to  that  section.  It 
is  almost  wide  enough  to  preserve  everything 
intended  to  be  swept  away  by  the  act.  Its  pro- 
fessed object  is  to  pave  the  way  to  a  revised 
edition  of  the  statutes  in  force,  and  to  eliminate 
obsolete  statutes ;  yet,  by  this  sub-section,  juris- 
diction, rights  and  liabilities  are  preserved  for 
which  reference  must  be  made  to  numerous  old 
statutes,  while  by  as.  7  and  8  powers  are  given 
and  provisions  enacted  which  are  expressly 
stated  to  be  interpreted  according  to  the  pro- 
visions in  the  sections  of  the  three  Common 
Law  Procedure  Acts,  1852, 1854,  and  1860 ;  yet 
these  are  professed  to  be  specifically  repealed  in 
the  schedule  of  the  act.  Winjield  v.  Boothroyd, 
64  L.  T.  674  ;  34  W.  R.  501— Per  Wills,  J. 

Amendment  Act— Implied  Re-enactment.] — 
In  1877  the  Metropolitan  Street  Improvements 
Act  was  passed  authorising  the  Metropolitan 
Board  of  Works  to  execute  certain  street  im- 

fwovements  and  to  take  land  for  that  purpose, 
t  incorporated  the  Lands  Clauses  Consolidation 
Acta.  Section  33  provided  that  accommodation 
should  be  furnished  for  such  of  the  labouring 
classes  as  would  be  displaced  by  the  proposed 
improvements,  and  authorised  the  Board  of 
Works  to  acquire  or  appropriate  certain  lands, 
and  sell  or  let  the  same  for  the  purpose  of  pro- 
Tiding  such  accommodation,  and  imposed  certain 
restrictions  on  the  board.  An  amending  act 
was  passed  in  1882,  which  by  s.  2  enacted  that 
the  board  should,  in  exercise  of  the  powers  by 
the  act  of  1877  conferred  upon  them,  appropriate 
\mnt\ttJ  shown  on  a  certain  plan,  to  the  erection 


of  artisans'  dwellings  in  three  pieces  succes- 
sively. Section  3  enacted  that,  in  reference  to 
the  land  shown  in  the  said  plan,  the  act  of  1877 
should  be  read  as  though  s.  33  were  not  con- 
tained therein : — Held,  that  s.  33  of  the  act  of 
1877  had  not  been  repealed  for  all  purposes,  and 
that  the  board  had  by  implication  the  powers  of 
selling  and  letting  conferred  by  that  section  for 
the  purpose  of  carrying  out  the  buildings  referred 
to  in  8.  2  of  the  act  of  1882.  Wigram  v.  Iryer, 
36  Ch.  D.  87  ;  56  L.  J.,  Ch.  1098 :  67  L.  T.  255  ; 
36  W.  R.  100— North,  J. 

Practice  under  Repealed  Statutes.]— On  a 
motion  to  strike  out  a  plea  to  a  return  to  a  writ 
of  mandamus  it  was  contended  that,  because  the 
statutes  which  allowed  a  plea  in  any  case  had 
been  repealed,  and  because  the  rules  of  1883  did 
not  provide  for  the  case  of  a  plea  to  a  return  of 
the  xind,  therefore  the  practice  which  existed 
under  those  statutes  was  no  longer  in  operation. 
By  Ord.  LXVIII.  r.  1,  and  by  Ord.  LXXII.  r.  2, 
nothing  in  these  rules  is  to  affect  the  procedure 
or  practice  in  proceedings  on  the  Crown  side  of 
the  Queen's  Bench  Division : — Held,  that  the 
practice  prevailing  at  the  time  the  rules  came 
into  operation  still  existed,  and  therefore  the 
plea  which  was  in  accordance  with  the  repealed 
statutes  must  stand.  Reg.  v.  Staffordshire 
JJ.  or  PirehUl  North  JJ.,  14  Q.  B.  D.  13; 
54  L.  J.,  M.  C.  17 ;  51  L.  T.  534 ;  33  W.  R. 
206— C.  A. 


6.  PABTICT7LAB  WORDS. 


«i 


Or  "  read  as  "  And."] — I  know  no  authority 
for  reading  "or"  as  " and  "  unless  the  context 
makes  the  necessary  meaning  of  "or"  "  and  "  as 
in  some  instances  it  does ;  but  I  believe  it  is 
wholly  unexampled  so  to  read  it  when  doing  so 
will  upon  one  construction  entirely  alter  the 
meaning  of  the  sentence,  unless  some  other  part 
of  the  same  statute  or  the  clear  intention  of  it 
requires  that  to  be  done.  It  may  indeed  be 
doubted  whether  some  of  the  cases  of  turning 
"  or  "  into  "  and  "  and  vice  vers&  have  not  gone 
to  the  extreme  limit  of  interpretation.  Mersey 
Docks  v.  Henderson,  13  App.  Cas.  603  ;  58 
L.  J.,  Q.  B.  152 ;  69  L.  T.  697  ;  37  W.  R.  449— 
Halsbury,  L.  C. 

When  "Parson"  includes  Corporation.]— An 
action  against  the  Melbourne  Harbour  Trust 
Commissioners  is  an  action  brought  against  a 
"  person "  within  the  meaning  of  s.  46  of  the 
Melbourne  Harbour  Trust  Act.  Union  Steamship 
Company  of  New  Zealand  v.  Melbourne  Harbour 
Trust,  9  App.  Cas.  365  ;  53  L.  J.,  P.  C.  69  ;  50 
L.  T.  337— P.  C. 

A  corporation,  such  as  a  board  of  guardians, 
is  included  in  the  word  "person,"  so  as  to  be 
within  the  protection  of  the  Sale  of  Food  and 
Drugs  Act,  1875.  Enniskillen  Guardians  vk 
HUliard,  14  L.  R.,  Ir.  214— Ex.  D. 


II.    WAIVBR   OF   STATUTORY   RIGHTS. 

By  Person  benefited.]— A  statute,  or  charter 
having  the  force  of  a  statute,  may  be  waived  by 
the  party  for  whose  benefit  it  was  enacted,  so  as  to 
render  the  acts  of  persons  disregarding  it  legal. 


1811 


STOCK   EXCHANGE. 


1812 


Goldmid  ▼.  Great  Eastern  B&Utoay,  25  Gh.  D. 
611 ;  58  L.  J.,  Oh.  371 ;  49  L.  T.  717 ;  82.  W.  H. 
841—0.  A. 

An  obligation  imposed  by  statute  ought  to  be 
capable  of  enforcement  with  respect  to  ail  future 
dealings  between  parties  affected  by  it  As  to 
the  result  of  past  breaches  of  the  obligation 
people  may  come  to  what  agreement  they  like ; 
but  as  to  future  breaches  of  it,  there  ought  to  be 
no  encouragement  given  to  the  making  of  an 
agreement  between  A.  and  B.  that  B.  shall  beat 
liberty  to  break  the  law  which  has  been  passed 
for  the  protection  of  A.  Baddeley  v.  Qraiwille 
{Earl),  19  Q.  B.  D.  426 ;  56  L.  J.,  Q.  B.  601 ;  57 
L.  T.  268 :  86  W.  B.  63 ;  61  J.  P.  822— Per 
Wills,  J. 


III.  REMEDIES  FOR  BREACH. 

General  Rules.]— There  are  three  classes  of 
cases  in  which  a  liability  may  be  established  by 
statute  : — (1)  Where  a  liability  existed  at  com- 
mon law  ana  was  only  re-enacted  by  the  statute 
with  a  special  form  of  remedy,  in  such  cases  the 
plaintiff  had  his  election  unless  the  statute  con- 
tained words  necessarily  excluding  the  common 
law  remedy ;  (2)  where  a  statute  has  created  a 
liability  but  given  no  remedy,  then  the  party 
may  adopt  an  action  of  debt  or  other  remedy  at 
common  law  to  enforce  it ;  (3)  where  the  statute 
creates  a  liability  not  existing  at  common  law 
and  gives  a  particular  remedy,  here  the  party 
must  adopt  the  form  of  remedy  given  by  the 
statute.  ValUnoe  v.  FaUe,  13  Q.  B.  D.  109 ; 
53  L.  J.,  Q.  B.  459 ;  51  L.  T.  158  ;  32  W.  R. 
770:  48  J.  P.  519;  6  Asp.  M.  C.  280— Per 
Mathew,  J. 

Provision  for  special  Benefit  of  Individual.] — 

Where  an  act  of  parliament  contains  a  provision 
for  the  special  protection  or  benefit  of  an  indi- 
vidual he  may  enforce  his  rights  thereunder  by 
an  action  without  either  joining  the  attorney- 
general  as  a  party  or  showing  that  he  has 
sustained  any  particular  damage.  Dcvenport 
{Mayor)  v.  Plymouth  Tramways  Company,  52 
L.  T.  161 ;  49  f.  P.  405— C.  A. 

Special  Remedy  excluding  Ordinary  Remedy.] 

—A  private  act  enacted  that  in  all  cases  of 
encroachments  of  buildings  on  the  streets  of  P. 
by  projections  on  the  true  lines  thereof,  it  should 
be  competent  for  the  corporate  council  to  have 
the  same  dealt  with  and  adjudicated  upon,  on 
due  notice  of  any  such  intention  given  to  the 
owner  thereof.  The  act  created  a  board  of 
assessors  with  power  to  award  compensation  to 
owners  of  property : — Held,  that  the  private  act 
ousted  the  jurisdiction  of  the  courts,  and  that  it 
was  incumbent  upon  the  corporation  to  proceed 
tinder  it  for  the  removal  of  an  encroachment  on 
the  street.  Pietermaritzburg  {Mayor)  v.  Natal 
Land  Company,  13  App.  Cas.  478;  57  L.  J., 
P.  C.  82  ;  &  L.  T.  895— P.  C. 

Where  a  special  remedy  is  given  for  the  failure 
to  comply  with  the  directions  of  a  statute,  that 
remedy  must  be  followed,  and  no  other  can  be 
supposed  to  exist  Bailey  v.  Bailey,  13  Q.  B.  D. 
869  ;  53  L.  J.,  Q.  B.  683— Per  Brett,  M.  R. 

Abolition  of  superior  of  two  Remedies.]— 
Where  there-  are  two  remedies  for  the  non- 


observance  of  a  right,  and  the  superior  remedy 
is  abolished  by  act  of  parliament,  the  neceswy 
result  is  that  the  inferior  remedy  is  brought  into 
exercise.  Christie  v.  Barker,  53  L.  J,  Q.  B. 
541— Per  Brett,  M.  R. 


STAYING    PROCEEDINGS. 

See  PRACTICE. 


STEALING. 

See  CRIMINAL  LAW. 


STOCK 

See  COMPANY. 


STOCK    EXCHANGE. 

Deposit  of  Bonds — Loan  to  Depositor.]"- A 
stockbroker,  member  of  the  London  Stock  Ex- 
change, deposited  bonds  as  a  security  for  a  loan 
with  a  stock  and  share  dealer,  a  member  of  the 
London  Stock  Exchange.  On  the  day  on  which 
such  a  loan  is  repayable,  the  practice  is  for  the 
lender  to  send  back  the  securities  to  the  borrower 
in  the  morning,  and  for  the  borrower  later  in  the 
day  to  send  a  good  cheque  to  the  lender  for  the 
amount  of  the  loan,  or  else  to  return  the  securi- 
ties or  other  securities  of  equal  value.  The 
lender  sent  back  the  securities  to  the  borrower 
on  the  morning  on  which  the  loan  was  payable: 
—Held,  that  this  did  not  affect  the  lender's 
right  to  the  securities  if  the  borrower  did  not 
give  him  a  good  cheque  for  the  loan,  or  send 
him  other  securities  of  a  value  equal  to  that  of 
the  securities  sent  back.  Bwrra  v.  Bicarit, 
1  C.  &  B.  478— Mathew,  J. 

Sale  of  Shares — (tastom— Common  Broker- 
Payment]— The  defendants  C.  and  R,  and  the 
plaintiffs*  D.  M.,  H.  M.,  K.  and  T.,  had  far 
some  time  been  in  the  habit,  respectively,  of 
employing  W.  as  their  stockbroker.  C.  and  B. 
instructed  W.  to  sell  for  them  some  shares  in 
the  A.  Co.  and  D.  M.,  and  H.  M.,  K.andTn 
respectively  instructed  him  to  bny  some  sbarei 
in  the  same  company.  On  the  6th  December, 
1881,  W.  sent  to  D.  M.  and  H.  M.  a  bought  note 
for  thirty  shares,  at  a  certain  price,  ana  to  S. 
and  to  T.  bought  notes  for  five  shares  each,  and 
he  sent  to  O.  and  B.  a  sold  note  for  forty  shares. 
On  the  same  day  W.  debited  the  accounts  of 
D.  M.  and  H.  M.,  K.  and  T.  with  thirty  shares, 
fire  shares,  and  five  shares,  respectively,  and 


1818 


STOCK   EXCHANGE. 


1814 


entiled  the    aecoant   of    0.    and    B.  with 
2,283*.  10#.  64.,  the  price  at  which  they  were 
fold.    Immediately  prior  to  this  transaction 
W„  upon  his  account  with  0.  and  B.,  was  in- 
debted to  them  in  a  sum  of  2002.    None  of  these 
parties  were  aware  of  the  fact  that  W.  was  act* 
rag  as  common  broker  for  the  buyers  and  the 
tellers.    On  the  16th  December,  D.  M.  and  H. 
M.  sent  W.  a  cheque  for  the  amount  of  the  prioe 
of  the  thirty  shares.    T.  had  sufficient  money  in 
W.'b  hands  to  pay  the  entire  price  of  the  shares 
sold  to  him,  and  K.  sufficient  to  pay  part,  and 
W.  appropriated  this  money  to  that  purpose,  and 
£.  sent  w.  a  cheque  for  the  balance  due  by  him. 
The  cheques  were  paid  by  W.  into  his  own  bank. 
On  the  22nd  December,  W.  sent  to  D.  M.  and 
JL  M.  a  transfer  for  fifteen  shares,  which  were 
executed  and  returned.    Transfers  of  the  re- 
maining shares  never  were  executed,  nor  the 
money  paid  by  W.  to  C.  and  B.,  and  on  the  27th 
January,  1882,  W.  was  adjudicated  a  bankrupt, 
D.  M.  and  H.  M.,  K.  and  T.,  haying  brought  an 
action  against  C.  and  B.  for  specific  performance 
of  the  contracts  contained  in  the  bought  and 
•old  notes: — Held,  that  the  payment  of  the 
purchase-money  by  D.  M.,  H.  M.,  E.  and  T.  to 
W.  did  not  amount  to  payment  to  G.  and  B.,  and 
that  the  contract  contained  in  the  bought  and 
sold  notes  could  not  be  specifically  performed, 
unless  upon  the  terms  of  the  payment  to  0.  and 
B.  of  the  purchase-money.    APDexitt  v.  Con- 
nolly, 15  L.  R»,  Ir.  500— C.  A. 

Sale  of  Bonds — Carrying  over— Continuation.] 
—Where  bonds  are  sold  and  not  paid  for,  but 
the  purchaser's  broker  is  instructed  by  him  to 
carry  them  oyer,  and  the  holders  of  the  bonds  at 
his  request  "  continue  "  them,  the  transaction  is 
not  a  loan,  but  a  sale  and  repurchase.  "To 
continue "  is  a  technical  term,  which  means  to 
sell  and  to  rebuy  the  same  amount  of  stock  at  a 
future  day  at  the  same  price,  a  further  sum 
being  paid  for  the  accommodation.  Bongiovanni 
T.  8ociiU  QtnArale,  54  L.  T.  320— C.  A. 

Broker's  Bight  of  Indemnity  by  Principal.]— 
See  cases,  ante,  cols.  1522  et  seq. 

Custom  as  to  Liability  of  Broker  where  Prin- 
cipal not  disclosed.]— See  Wildy  v.  Stephenson, 
ante,  coL  1521. 

Liability  of  Trustee  for  Fraud  of  Broker.]— See 
Speight  y.  Gawnt,  post,  Tbust  and  Tbustee. 


STOPPAGE  IN    TRANSITU. 

See  SALE,  I.  6. 


STRAITS   SETTLEMENTS. 


See  COLONY. 


STREET. 

See  HBALTH— MBTBOPOLIaU-WAY. 


SUCCESSION  DUTY. 

See  REVENUE. 


SUMMARY  JURISDICTION. 

See  JUSTICE  OF  THE  PEACE. 


SUMMONS. 

Debtor's  8ummona.] — See  Bankruptcy. 
Writ  oi]— See  Practice. 


SUNDAY. 


See  TIME. 


SUPERFLUOUS  LAND. 

See  LANDS  CLAUSES  ACT. 


SUPPORT. 

See  EASEMENT. 


SURETY. 

See  PBINCIPAL  AND  8UBETY. 


SURGEON. 

See  MEDICINE. 


J 


1815 


TELEGRAPHS   AND   TELEPHONES. 


1816 


SURRENDER. 

See  LANDLOBD  AND  TENANT,  V. 


SURVEYOR. 

8ee  ARCHITECT. 


rm 

4 


TAXATION  OF  COSTS. 

Between  Party  sad  Party.] — See  Costs. 
Between  Solicitor  and  Client.] — See  Solicitor. 
Of  Station  Petition!.] — See  Election  Law. 


TAXES. 

See  BEVBNUB. 


TELEGRAPHS    AND   TELE- 
PHONES. 

Telegraph  —  Compensation  for  Monopoly  — 
Award  of  Lump  Sum— Further  Claim— Arbitra- 
tion Clanses.  1— -By  the  Telegraph  Act,  1868,  a.  9, 
sub-s.  6,  the  Postmaster-General  shall  pay  rail- 
way companies  by  way  of  compensation  (clause 
D.)  such  sums  as  shall  be  settled  by  arbitration 
in  respect  of  the  loss  by  such  railway  company 
of  the  privilege  of  granting  other  way-leaves  and 
making  future  arrangements  with  telegraph  or 
other  companies,  and  in  respect  of  granting  a 
monopoly  to  the  Postmaster-General  for  the  con- 
veyance of  telegraphs  over  their  railways.  By 
clause  H.  of  the  same  sub-Bection,  on  acquisition 
of  the  telegraphs,  the  Postmaster-General  shall 
have  a  perpetual  right  of  way  for  his  poles  and 
wires  over  the  whole  of  the  railway  company's 
system,  and  in  consideration  thereof  he  shall  pay 
to  the  railway  company  such  sum  per  mile  per 
wire  over  the  whole  of  the  said  system  by  way  of 
yearly  rent  as  shall  be  fixed  by  arbitration.  The 
arbitrator  in  determining  the  amounts  to  be  paid 
to  the  railway  company  under  this  act,  shall 
have  regard  to  the  agreements  which  subsist 
between  the  railway  company  and  any  telegraph 
company,  and  also  to  a  compulsory  sale  being 
required  from  the  railway  company  ;  and  in  esti- 
mating the  amount  to  be  paid  under  any  one 
part  of  this  section  shall  have  regard  to  the 
advantages  to  be  obtained  and  the  disadvantages 
to  be  sustained  by  the  railway  company  under 
any  other  part  of  this  section.  By  sub-s.  8  of 
the  same  section,  power  is  reserved  to  the  rail- 
way company  to  erect  and  work  private  tele- 
graphs for  annual  rent  or  payment  for  way-leave 
from  traders.     An  arbitrator  had  awarded  a 


certain  lump  aum  to  the  defendants  as  and  by 
way  of  compensation  in  pursuance  of  the  pro- 
visions of  aub-e.  6  of  a.  9  of  this  act,  but  had 
made  no  allusion  in  his  award  to  any  yearly  rent 
under  clause  H.  of  that  sub-section :— Held, 
that  the  defendants  were  precluded  from  any 
further  compensation  for  extra  poles  or  vires 
which  the  Postmaster-General  might  in  future 
require  to  be  erected  upon  their  railway  system. 
Reg.  v.  Metropolitan  Railway,  60  L.  T.  6— 
G.  A. 

Telegraph  Wires  —  Overhead  and  Uadar- 
ground.] — A  local  board,  on  being  applied  to 
by  the  Postmaster-General  under  a  3  of  the 
Telegraph  Act,  1878,  for  their  consent  to  the 
placing  of  telegraphs  and  posts  upon,  along  and 
over  streets  and  roads  in  their  district,  refused 
their  consent,  except  on  condition  that  the  wires 
across  or  along  streets  or  roads  should  be  under- 
ground. This  difference,  after  having  been  re- 
ferred to  a  metropolitan  police  magistrate,  was, 
in  accordance  with  s.  4  of  the  Telegraph  Act, 
1878,  brought  before  the  Railway  Commis- 
sioners. The  Commissioners  decided  that  over- 
bead  wires  should  be  allowed,  subject  to  the 
following  conditions  : — 1.  That  all  wires  shall  be 
of  copper.  2.  That  all  poles  shall  be  of  iron. 
3.  That  no  wire  shall  be  placed  over,  along,  or 
across  any  road  or  footway  at  a  leas  height  than 
thirty  feet  above  such  road  or  footway.  4. 
That  where  a  wire  crosses  over  any  public  road 
or  street  the  distance  between  the  points  of 
support  at  either  side  of  such  road  or  street  shall 
not  in  any  case  exceed  100  yards.  Wandsworth 
District  Local  Board  v.  Postmaster- Ge%erd,i 
Nev.  &  Mac.  SOI — Commra. 

Overhead  Wiro— Metropolis— Injimetioii.]- 
By  the  Metropolis  Management  Act,  1855,  s.  96, 
"  all  streets,  being  highways,  shall  vest  in  and  be 
under  the  management  and  control  of  the  vestry 
or  district  board  of  the  parish  or  district  in  which 
such  highways  are  situate.1'  Defendants,  a  tele- 
phone company,  fixed  a  telephone  wire  to  a 
chimney,  and  stretched  it  across  a  street,  which 
was  vested  in  plaintiffs  as  the  district  board,  at 
a  height  of  about  thirty  feet  from  the  ground. 
Plaintiffs  brought  an  action  for  an  injunction  to 
restrain  defendants  from  keeping  up  the  wire  :— 
Held,  that  what  was  vested  in  plaintiffs  was  the 
property  in  the  surface  of  the  ground,  together 
with  as  much  space,  both  above  and  below  the 
surface,  as  amounted  to  the  area  of  ordinary 
user ;  and  that  as  the  wire  in  question  was  above 
this  area,  and  was  not  shown  to  be  dangerous,  so 
as  to  amount  to  a  nuisance,  plaintiffs  were  not 
entitled  to  an  injunction  : — Held,  also,  that 
defendants  did  not  require  plaintiffs'  consent 
under  26  &  27  Vict.  c.  112,  a.  12,  to  entitle  them 
to  place  the  wire  across  the  street.  WsmdswsrA 
Board  of  Works  v.  United  Telephone  Osmmtm, 
13  Q.  B.  D.  904  ;  53  L.  J.,  Q.  B.  449 ;  51  h.  T. 
148  ;  32  W.  B.  776  ;  48  J.  P.  676— C.  A 

Telegrams— Increased  Charge— Authority  of 
Clerk.]— Where  a  certain  sum  ia  charged  for  a 
telegram  and  the  sender  ia  afterwards  called 
upon  to  pay  an  increased  aum  : — Held,  that  he 
ia  bound  to  pay  the  amount  so  claimed,  as  the 
Postmaster-General  is  in  no  way  estopped  from 
suing,  and  is  not  bound  by  inaccurate  represen- 
tations made  by  a  clerk  in  his  employ.  Post- 
master-General  v.  Green,  61  J.  P.  682— D. 


1817 


TENANT. 


1818 


Contrast  by— Whero  made.]— The  plain- 
tiff telegraphed  from  Regent  Street  to  the  defen- 
dant at  Ludgate  Hill  directing  him  to  make 
beta,  on  his  behalf,  on  certain  horses.  The 
defendant  replied  by  telegram,  "  You  are  on." 
Upon  the  plaintiff  suing  the  defendant,  as 
his  agent,  in  the  Mayor's  Court  for  356Z.  re- 
ceived to  his  use,  the  defendant  applied  for  a 
writ  of  prohibition  :— Held,  that  the  application 
most  be  refused,  since  the  whole  cause  of  action 
arose  within  the  city — the  telegraph  office  being 
merely  the  medium  through  which  the  parties 
were  brought  into  communication — and  they 
were  accordingly  in  the  same  position  as  if  they 
bad  met  together  in  the  city  and  made  a  con- 
tact. Cowan  ▼.  O'Connor,  20  Q.  B.  D.  640 ;  67 
L.  J.,  Q.  B.  401 ;  58  L.  T.  857  ;  36  W.  R.  895 
-D. 

Sating  Wires,  eto.'j—See  Poor  Law. 


TENANT. 

1.  lbnant  for  Life  and  Remainderman,  1817. 

2.  Tenant*  for  Life,  1819. 

3.  Joint  Tenancy,  1820. 

4.  Tenant*  in  Common,  1821. 

5.  Tenant*  in  Tail,  1821. 

6.  Landlord  and    Tenant  —  See  LANDLORD 

ajtd  Tenant. 


1.   Tenant  for  Life  and  Remainderman. 

Unauthorised  Security — Enjoyment  by  Tenant 
Jot  life  in  Specie— Power  to  Trustees  to  retain 
existing  Securities.] — A  testator  empowered  his 
trustees  at  their  discretion  to  continue  all  or  any 
part  of  his  personal  estate  in  the  state  or  invest- 
ment in  or  upon  which  the  same  should  be  at 
his  death,  or  otherwise  to  convert  the  same  and 
to  invest  the  proceeds  in  the  names  of  the  trus- 
tees m  certain  specified  securities.    At  the  death 
of  the  testator  part  of  his  personal  estate  consisted 
of  securities  not  of  a  wasting  nature  and  not 
specifically  authorised.     In  an  action  for  the 
administration  of  the  estate  the  chief  clerk  found 
that  some  of  these  securities  were  proper  to  be 
continued,  and  that  others  were  proper  to  be 
called  in  : — Held,  that  the  tenants  for  life  under 
the  will  were  entitled  to  receive  in  specie  the 
income  of  those  unauthorised  securities  which 
were  retained,  and  which  were  not  of  a  wasting 
nature.      Sheldon,    In   re,   Nixon    v.  Sheldon, 
39  Ch.  D.  60 ;  58  L.  J.,  Ch.  25 ;  59  L.  T.  133 ; 
37  W.  R.  26— North,  J. 

Putting  Leaseholds  into  Bepair.]— A  testator 
bequeathed  certain  leaseholds  to  trustees  upon 
trust  for  his  widow  for  life,  and  after  her  death 
upon  trust  to  sell  and  to  divide  the  proceeds  as 
therein  mentioned.  And  the  testator  authorised 
his  trustees, "  providing  they  should  deem  it  ad- 
visable," to  sell  any  portion  of  his  short  lease- 
hold messuages.  At  the  time  of  the  death  of  the 
testator  these  leaseholds  were  in  a  very  bad 
state  of  repair,  and  the  tenant  for  life  only  did 
sufficient  repairs  to  keep  them  in  a  like  state  : — 
Held,  that  tne  tenant  for  life  was  under  no  legal 
obligation  to  put  the  leaseholds  in  such  a  state 


of  repair  as  to  satisfy  the  covenants  in  the  leases. 
Courtier,  In  re,  Cole*  v.  Courtier,  34  Ch.  D. 
136  ;  56  L.  J.,  Ch.  350 ;  55  L.  T.  574  ;  35  W.  R. 
86  ;  61  J.  P.  117— C.  A. 

Permissive  Waste — Gift  subject  to  keeping 
Property  in  "good  and  tenantable  Bepair."] — 
A  testator  devised  to  his  wife  for  life  two  free- 
hold houses  with  the  buildings,  land,  and  ap- 
purtenances thereto  belonging,  "she  keeping 
the  same  in  good  and  tenantable  repair."  The 
testator  directed  the  property  to  be  sold  by  his 
trustees  after  the  death  of  his  wife,  the  proceeds 
to  be  held  upon  the  trusts  mentioned  in  his  will. 
After  the  death  of  the  testator  his  widow  entered 
into  possession  of  the  property  and  continued 
therein  until  the  date  of  her  own  death.  It  was 
then  discovered  that  the  property  was  in  a 
dilapidated  condition,  and  particularly  the  out- 
buildings adjoining  one  of  the  houses,  consisting 
of  greenhouses  and  conservatories  formerly  used 
in  the  business  of  a  fruit-grower,  in  whose  pos- 
session such  house  was  before  the  testator  pur- 
chased it  An  originating  summons  was  accord- 
ingly taken  out  by  the  trustees  of  the  will, 
asking  that  what  sum  the  representative  of  the 
testator's  widow  was  liable  to  pay  by  reason  of 
the  property  not  having  been  kept  by  her  in 
good  and  tenantable  repair  might  be  determined. 
Evidence  was  adduced  to  show  that  the  green- 
houses were  wholly  neglected  and  in  complete 
disrepair  at  the  time  the  testator  purchased; 
that  he  never  intended  to  put  the  same  into  re- 

Sair,  but  had  thought  of  having  them  pulled 
own.  It  was  therefere  contended  that  the 
estate  of  the  testator's  widow  was  not  liable  in 
respect  of  the  repairs  required  to  such  green- 
houses : — Held,  that  the  fact  that  the  testator 
did  not  himself  keep  the  green-houses  in  good 
and  tenantable  repair  could  not  be  regarded 
as  an  excuse  for  his  widow  not  doing  so,  haying 
regard  to  the  express  direction  contained  in  the 
will ;  and  that,  therefore,  her  estate  was  liable 
for  the  amount  of  the  repairs  required.  Brad- 
brook,  In  re,  Look  v.  WUli*,  66  L.  T.  106— 
Kay,  J. 

"  Ordinary  Outgoings" — Drainage  Expenses.] 
— A  testator  gave  freehold  and  leasehold  houses, 
bonds  and  consols  on  trust  to  pay  the  income 
after  deducting  ordinary  outgoings  to  his  widow 
for  life: — Held,  that  the  tenant  for  life  must 
bear  the  cost  of  drainage  work  required  to  be 
done  to  one  of  the  leasehold  houses  by  the  vestry 
under  the  Metropolis  Local  Management  Act, 
1855,  a  73.  Crawley,  In  re,  Acton  v.  Crawley, 
28  Ch.  D.  431 ;  54  L.  J.,  Ch.  652  ;  52  L.  T.  460 ; 
33  W.  B.  611 ;  49  J.  P.  698— Pearson,  J. 

Profits  of  Business— Power  to  postpone  Sale.] 
— See  Chancellor,  In  re,  ante,  coL  776. 

Mortgage— Arrears— Deficient  Security.] — See 
Moore,  In  re,  ante,  col.  795. 

Capitalisation  of  Annuity.]—  See  Muffett,  In 
re,  ante,  coL  795. 

Issue  of  Hew  Stock— Profit  arising  from.] — 
See  Bromley,  In  re,  Sander*  v.  Bromley,  ante, 
coL  398. 

Compensation  for  Damage  to  Mines.]  —  See 
Barring  ton,  In  re,  ante,  col.  1228, 


1823 


TENDER— THEATRE— TIMBER 


1824 


and  the  order  appealed  from  must  be  discharged. 
Green  v.  Paterson,  32  Ch.  D.  95  ;  66  L.  J.,  Ch. 
181 ;  64  L.  T.  738  ;  34  W.  R.  724—0.  A. 


Specific    Performance  of  Contract  to 


Execute.]— See  Banket  v.  Small,  ante,  col.  1797. 

By  Infant  Female— Omitting  Property— 

Hiitale.]— See  Mills  v.  Fox,  ante,  col.  969. 


TENDER. 

Defence— Action  for  unliquidated  Damages.] 
— A  defence  of  tender  of  the  sum  paid  into  court 
cannot  be  pleaded  to  a  claim  for  unliquidated 
damages.  Bavyt  v.  Richardson,  21  Q.  B.  D.  202 ; 
67  L.  J.,  Q.  B.  409 ;  59  L.  T.  766  ;  86  W.  R.  728 
— C.A. 

Payment  into  Court  with  Plea.]—  See  Davys 
V.  Richardson,  ante,  coL  1427. 


THAMES. 

Watermen.]— See  Shipping,  II. 
Collisions  in.]— See  Shipping,  XII.  2,  f. 


THEATRE. 

Having  or  keeping  a  House  for  the  Public 
Performance  of  Stage  Plays.]— The  appellant 
was  the  owner  and  occupier  of  a  building  which 
he  gratuitously  allowed  to  be  used  on  a  few 
occasions  for  the  performance  of  stage  plays,  to 
which  the  public  were  admitted  on  payment,  for 
the  benefit  of  a  charity.  The  appellant  had  no 
licence  for  the  performance  of  stage  plays  in 
auch  building  :— Held,  that  he  was  rightly  con- 
victed, of  having  or  keeping  a  house  for  the 
Sublic  performance  of  stage  plays  without  a 
cence,  under  6  &  7  Vict.  c.  68,  s.  2.  Shelley  v. 
JBethell,  12  Q.  B.  D.  11  ;  53  L.  J.,  M.  C.  16 ;  49 
L.  T.  779  ;  32  W.  R.  276  ;  48  J.  P.  244— D. 


THIRD   PARTY. 

See  PRACTICE. 


TIMBER. 

Windfalls— Real  and  Personal  Estate— Tenant 
:for  life.] — A  testator  devised  estates  upon  which 
there  were  plantations  of  larch  trees.    At  the 


time  of  his  death  a  great  number  of  the  larch 
trees  had  been  more  or  less  blown  down  by  extra- 
ordinary gales.  It  was  held  by  Pearson,  J.,  that 
as  between  the  devisees  and  the  executors  of  the 
testator  the  trees  which  had  been  blown  down  to 
such  an  extent  that  they  could  not  grow  as  trees 
usually  grow,  were  severed  and  belonged  to  the 
executors,  and  that  the  trees  which  were  merely 
lifted  but  would  have  to  be  cut  for  the  proper 
cultivation  of  the  plantations  belonged  to  the 
devisees : — Held,  that  having  regard  to  the  maxim 
44  quicquid  plantatur  solo,  solo  cedit,"  the  prin- 
ciple applicable  was  that  if  a  tree  was  attached 
to  the  soil  it  was  real  estate,  and  if  severed, 
personalty ;  that  the  life  and  manner  of  growth 
of  any  particular  tree  was  no  test  of  its  attach- 
ment to  the  soil,  and  that  the  degree  of  attach- 
ment or  severance  was  a  question  of  fact  in  the 
case  of  each  particular  tree.  Ainslie,  In  re, 
Smnburn  v.  Ainslie,  30  Ch.  D.  485 ;  55  L.  J., 
Ch.  615;  53  L.  T.  646  ;  33  W.R.910;  50  J.P. 
180— C.  A, 

Capital  or  Income.]— A  large  part  of  the 

income  of  a  settled  estate  was  derived  from  the 
thinnings  and  cuttings  of  larch  plantations,  and, 
during  a  tenancy  for  life,  high  winds  blew  down 
a  very  large  proportion  of  the  larches,  and  it 
became  necessary  for  the  good  cultivation  of  the 
estate  to  remove  almost  the  whole  of  those  which 
remained.  It  was  estimated  that  it  would  take 
forty  years  for  the  plantations  to  yield  the  same 
income  as  before : — Held,  that  tie  tenant  for 
life  was  not  entitled  to  receive  the  proceeds  of 
sale  either  of  the  trees  not  blown  down  but 
which  had  to  be  removed,  or  of  the  trees  which 
were  actually  blown  down,  but  that  the  whole 
of  the  proceeds  of  sale  must  be  invested  as 
capital  But  held,  that  the  tenant  for  life  was 
entitled  to  receive  out  of  the  income  arising 
from  the  invested  fund  and  the  plantations  a 
fixed  annual  sum,  equal  to  the  average  income 
which  would  have  been  derived  from  the  plan- 
tations if  no  gales  had  occurred — such  sum,  if 
necessary,  to  be  made  up  out  of  capital;  the 
trustees  to  be  at  liberty  to  have  recourse  to  the 
investments  or  the  income  of  theplantations  for 
the  purpose  of  fresh  planting.  Harrison ,  In  re, 
Harrison  v.  Harrison,  28  Ch.  D.  220 ;  54  L.  £, 
Ch.  617  ;  52  L.  T.  204  ;  33  W.  R.  240— C.  A 

Tenant  in  Tail  restraining  Tenant  for  lis 
from  outting — Ornamental  or  sheltering  limber.] 
— The  plaintiff  was  tenant  in  tail  in  remainder, 
and  the  defendant  tenant  pur  autre  vie  of  an 
estate  settled  in  1855.  At  the  date  of  the  settle- 
ment there  was  no  mansion-bouse  on  the  estate, 
but  one  was  acquired  in  1859  by  exchange  under 
a  power  in  the  settlement.  The  defendant  felled 
certain  trees  in  the  vicinity  of  the  mansion- 
house,  marked  others  for  cutting,  and  advertised 
a  sale  of  timber ;  the  plaintiff  applied  for  an 
injunction : — Held,  that  there  must  be  an  inquiry 
in  the  form  adopted  in  Marker  v.  Marker  (9 
Hare  1),  as  to  what  trees  could  be  cut  without 
impairing  the  beauty  of  the  place,  or  the  shelter 
given  to  the  mansion-house,  as  at  the  acquisition 
thereof  in  1859 ;  an  undertaking  by  the  plaintiff 
in  damages,  and  an  injunction  as  prayed,  but 
conditional  on  the  plaintiff  giving  such  under- 
taking. Ashby  v.  Hincks,  58  L.  T.  557— 
Stirling,  J. 


r 


1825 


TIME— TITLE— TOLLS. 


1826 


TIME. 


Generally.]— See  Practice,  ante,  col.  1496. 

Tor  Appeal.]— See  Appeal. 

"  Forthwith."]— Where  an  order  for  the  dis- 
charge of  a  patient  has  been  given  under  8  &  9 
Vict,  c  100,  s.  72,  by  the  person  who  signed  the 
order  for  the  reception  of  such  patient,  the  pro- 
prietor of  the  asylum  is  bound  to  discharge  the 
patient  forthwith,  that  is,  as  soon  as  practically 
possible  under  the  circumstances.  Lome  v.  Fox, 
15  Q.  B.  D.  667 ;  54  L.  J.,  Q.  B.  561  ;  53  L.  T. 
386  ;  34  W.  R.  144 ;  50  J.  P.  244— C.  A.  See 
Hill,  Ex  parte,  ante,  col.  204. 

*'  Hot  leu  than"  Fourteen  Dayi.]— An  interval 
of  not  less  than  fourteen  days  which  is  to  elapse 
between  two  acts  done  is  an  interval  of  fourteen 
clear  days  exclusive  of  the  days  on  which  such 
arts  were  to  be  clone.  Railway  Sire  per*  Supply 
Company,  In  re,  29  Ch.  D.  204  ;  54  L.  J..  Ch. 
720  ;  52  L.  T.  731  ;  33  W.  R.  595— Chitty,  J. 

Calculation  of  Time  for  Registration  of  Bill  of 
Sale— Snndayi.] — A  bill  of  sale  through  inad- 
vertence not  being  registered  within  the  time 
limited  by  the  Bills  of  Sale  Act,  1879,  leave  was 
give  i  on  the  ex  parte  application  of  the  grantee 
to  register  within  three  oays,  and  the  bill  of  sale 
was  registered  on  the  fourth  day  from  the  order, 
reckoning  an  intervening  Sunday : — Held,  that 
Sunday  was  not  to  be  counted  in  the  three  days 
limited  by  the  order  for  registration,  and  that 
therefore  the  registration  had  been  effected 
wi  t hi n  the  time  prescribed  by  that  order.  Pa  rke, 
In  rt,  13  L.  R.,  Ir.  85— Miller,  J. 


(c 


Within  Three  Months."]— &*  Foster,  Ex 
parte,  Hanson,  In  re,  ante,  col.  101. 


TITHES. 

See  ECCLESIASTICAL  LAW. 

Subject  to  Annuity— Settled  Land  Aet.]- 
Endaile,  In  re,  ante,  col.  1636. 


-See 


TITLE- 

• 

Title  of  Dignity  or  Honour  —  Incorporeal 
Hereditament]— When  a  dignity  is  limited  to 
the  heirs  of  the  body,  then,  although  no  place  be 
named  in  the  creation  of  the  title,  the  dignity  is 
within  ihe  statute  De  Bonis,  and  descendible  as 
an  estate  tail,  and  the  patent  does  not  create  a 
fee  simple  conditional.  There  is  no  difference  in 
these  respects  between  a  baronetcy  and  other 
descendible  dignities.  Riv?.tt-Curna<?$  Will,  In 
r%  30  Ch.  D.  136  ;  64  L.  J.,  Ch.  1074 ;  53  L.  T. 
SI ;  S3  W.  R.  837— Chitty,  J. 


Right  of  Entry—"  Pretenoed  "  Title  to  Land 
— Buying  of— Forfeiture— Knowledge  of  Buyer.] 
— In  an  action  for  a  forfeiture  under  32  Hen.  8, 
c.  9.  8.  2,  against  the  buyer  of  a  right  of  entry, 
since  8  &  9  Vict.  c.  106,  s.  6,  the  onus  is  upon  the 
plaintiff  to  prove  not  only  that  the  title  pur- 
chased was  bad,  but  also  that  the  buyer  knew 
that  it  was  "  pretenoed,"  i.e.,  fictitious,  or  bad  in 
fact.  The  mere  fact  that  the  right  purchased 
was  barred  by  the  Statute  of  Limitations  at  the 
time  of  the  purchase  does  not  necessarily  render 
the  title  "  pretenced  "within  the  meaning  of  the 
32  Hen.  8,  c.  9.  Kennedy  v.  Lyell,  15  Q.  B.  D% 
491  ;  53  L.  T.  466  ;  1  C.  &  E.  584—  Denman,  J. 


TITLE-DEEDS. 

See  DEED  AND   BOND,  IV.  1. 


TOLLS. 

Charge  of,  for  Carriage.] — See  Carrier. 

Market  Tolls.]— See  Market. 

Liability  of  Postmaster-General  to  pay.]— .See 
Post  Office. 

Import  Dues— Grain  imported  for  8ale.] — The 
importation  of  an  article  for  the  purpose  of  its 
manufacture  or  conversion  into  a  form  other  than 
that  in  which  it  is  imported,  is  not  an  importa- 
tion of  such  article  for  sale,  notwithstanding  that 
it  may  at  the  time  of  importation  be  intended  for 
sale  when  manufactured  or  converted.  Where, 
therefore,  a  local  act  rendered  grain  brought  into 
a  port  for  sale  liable  to  duty,  such  duty  was  held 
not  to  be  leviable  upon  grain  imported  by  a  miller 
for  the  purposes  of  his  business.  Scott  v.  Tayler% 
48  J.  P.  424— D. 


TORTS. 


See  NEGLIGENCE— TRESPASS- 
TROVER,   ETC. 


TOWAGE. 

See  SHIPPING,  XIII. 


TOWN. 


See  HEALTH— METROPOLIS. 

Council]— See  CORPORATION. 

3  N 


1827 


TRADE    AND    TRADE    MARK— Trade. 


182& 


TOWING    PATH. 

See  WATER  (CANAL  COMPANY). 


TRADE  AND  TRADE 
MARK. 

I.  Trade. 

1.  Trade  Name,  1827. 

2.  Imitation  of  Goods,  1830. 

3.  Trade  Libels— Slander  of  Title,  1831. 

4.  Conspiracy  to  Injure,  1834. 

6.  Contracts  in  Restraint  of-— Bee  Con- 
tract, III.  3,  g. 

IL  Trade  Mares. 

1.  Registration. 

a.  Who  may  Register,  1834. 

b.  What  may  be  Registered. 

i.  Generally,  1836. 
ii.  Fancy  Words — Words  not  in 

Common  Use,  1838. 
iii.  Distinctive    Device,   Word, 

Mark,  fee,  1840. 
iv.  Similarity  —  Calculated   to 

Deceive,  1843. 
v.  Three  Mark  Rule,  1846. 
vi.  Words  Publici  Juris,  1847. 

c.  Practice. 

i.  Generally,  1847. 

ii.  Rectification  of  Register, 
1850. 

iii.  Common  Elements  —  Dis- 
claimer, 1854. 

2.  Infringement,  1855. 

III.  Merchandize  Marks,  1858. 

IV.  Designs,  1868. 

V.  Trade  Unions,  1860. 

I.  TRADE. 
1.    TRADE  NAME. 

Insuranee  Companies  —  Similarity  —  Injunc- 
tion.}— The  plaintiff  company  having  for  many 
years  carried  on  an  insurance  business  under  its 
name  as  stated'  below,  the  defendant  company 
obtained  registration,  and  began  to  issue  pro- 
spectuses and  advertisements  under  the  name 
stated  below.  The  offices  of  both  companies 
were  situated  in  the  city  of  London.  On  motion 
of  the  plaintiff  company,  an  injunction  was 
granted  to  restrain  the  defendant  company, 
until  the  hearing  or  further  order,  from  using 
its  name  as  stated  below,  or  any'  other  name 
calculated  to  cause  the  defendant  company  to 
be  mistaken  for  the  plaintiff  company.  Acci- 
dent Insurance  Company  v.  Accident,  Disease, 
and  General  Insurance  Corporation,  64  L.  J., 
Ch.  104  ;  51  L.  T.  597— Pearson,  J. 

Newspaper— Grounds  on  which  Publication 

restrained.]— The  right  of  the  proprietor  of  a 
newspaper   to   prevent   another    person   from 


adopting  the  same  or  similar  name  for  a  similar 
publication  is  not  founded  on  the  right  of  pro- 
perty in  the  proprietor,  but  rests  upon  the  equit- 
able doctrine  that  the  user  of  such  name  is. 
reasonably  calculated  to  induce  the  public  to 
believe  that  the  new  paper  is  that  of  the  original 
proprietor,  and  to  pass  off  his  paper  for  that  of 
the  original  proprietor.  Walter  v.  Emmattr 
infra. 

Where  the  owner  of  a  publication  claims  an 
injunction  to  restrain  the  issue  of  another  publi- 
cation with  a  similar  name  he  must  show  not 
only  that  the  assumption  of  the  name  by  the 
defendant  is  calculated  to  deceive  the  public, 
but  also  that  there  is  a  probability  of  the 
plaintiff  being  injured  by  such  deception. 
Borthwick  v.  Evening  Post.  37  Gh.  D.  449 ;  57 
L.  J.,  Q.  B.  406  ;  58  L.  T.  252  ;  36  W.  R.  434— 
C.A. 

The  plaintiff  had  long  been  the  proprietor  of  a 
daily  morning  newspaper,  called  the  "  Morning 
Post."  The  defendants  commenced  a  daily 
evening  newspaper  called  the  "  Evening  Post/* 
There  was  no  evidence  of  any  actual  injury 
having  been  done  to  the  plaintiff  by  the  conduct 
of  the  defendants :— Held,  that  although  the 
conduct  of  the  defendants  in  taking  the  name 
"  Evening  Post M  might  be  calculated  to  deceive 
the  public  into  supposing  that  there  was  a  con- 
nexion between  the  two  papers,  there  was  no 
probability  that  the  plaintiff  would  be  injured 
by  such  supposition  ;  and  an  injunction  wai 
therefore  refused.    lb. 

■  Misrepresentation — Interlocutory  Injunc- 


tion.]— The  proprietor  of  an  old-established  paper 
called  "  The  Mail,"  published  three  days  a  week 
at  11  a.m.  at  the  price  of  2d.  in  London,  but 
whose  principal  circulation  was  in  the  provinces 
and  abroad,  was  held  not  entitled,  upon  inter* 
locutory  application,  to  an  injunction  restraining 
the  defendant  from  using  on  a  daily  morning 
paper  which  he  had  just  started,  and  which  was 
published  in  London  at  3  a.m.  at  the  price  of  ^., 
the  title  of  "  The  Morning  MaiL"  Walter  t. 
Dmmott,  54  L.  J.,  Ch.  1069  ;  53  L.  T.  437— C.  A 

Registration  of  Copyright— User  and  Reputa- 
tion.]—The  plaintiffs,  on  the  3rd  February,  1888. 
published  the  first  number  of  a  newspaper,  and 
registered  it  at  Stationers*  Hall  on  the  next 
day.  No  advertisement  had  been  issued  that  a 
newspaper  under  that  name  was  about  to  be 
published.  On  the  6th  February  the  defendants 
published  the  first  number  of  a  newspaper  with 
the  same  name.  Very  few  copies  of  the  plain- 
tiffs' paper  had  then  been  solo!  : — Held,  that  the 
plaintiffs  could  not  restrain  the  defendants  from 
publishing  their  newspaper  under  that  name, 
for  that  the  registration  at  Stationers*  Hall  gave 
the  plaintiffs  no  exclusive  right  to  the  name,  and 
that  a  title  to  it  by  user  and  reputation  coold  not 
be  acquired  by  a  publication  for  three  days  with 
a  very  small  sale.  Licensed  Victuallers*  Nnr*~ 
paper  Company  v.  Bingham,  38  Ch.  D.  139  ;  58 
L.  J.,  Ch.  36  ;  59  L.  T.  187 ;  36  W.  B.  433- 
C.A. 

The  plaintiff  was  the  proprietor  of  a  news- 
paper called  "  The  Grocer,"  published  in  London, 
to  which  there  had  been  originally  attached  a 
monthly  supplement  entitled  *•  The  Oil  Trade  Re- 
view," both  of  which  were  registered  at  Stationers' 
Hall,  In  1886  the  two  were  amalgamated  under 
the  name  of  "  The  Grocer  and  Oil  Trade  Review." 


1829 


TRADE    AND    TRADE    MARK— Trade. 


1830 


In  1888  the  defendants  commenced,  in  Dublin, 
the  publication  of  a  bi-monthly  paper  called  "  The 
Grocer  and  Wine  Merchant  and  Irish  Brewer 
and  Distiller/'  intended  by  the  defendants  to 
represent  and  to  advocate  the  interests  of  a 
different  branch  of  the  trade  from  the  plaintiff's 
paper:— Held,  that  the  plaintiff  was  entitled  to 
an  injunction  to  restrain  the  defendants  from 
using  the  term  "  Grocer  "  as  the  first  or  principal 
part  of  the  title  of  their  paper.  Reed  v.  O'Meara, 
21  L.  B.,  Ir.  216— V.  C. 

Assuming  Name  —  Telegraphie  Address.]  — 

The  short  address  '*  Street,  London,"  was  used 
for  many  years  in  sending  telegrams  from 
abroad  to  Street  k  Co.,  of  Cornhill.  A  bank 
adopted  by  arrangement  with  the  Post  Office  the 
phrase  "  Street,  London,"  as  a  cypher  address  for 
telegrams  from  abroad  to  themselves: — Held, 
that  the  court  had  no  jurisdiction  to  restrain  the 
bank  from  using  such  cypher  address.  Street  v. 
Union  Bank  of  Spain  and  England,  30  Ch.  D. 
156 ;  55  L.  J.t  Ch.  31 ;  53  L.  T.  262  ;  33  W.  R. 
901— Pearson,  J. 

"  Cattle  Album  "  of  Photographs.]— An  album 
for  holding  photographs  containing  a  printed  list 
of  various  castles,  painted  illustrations  of 
which,  with  short  descriptions,  appeared  on  the 
pages  of  the  album,  is  not  a  book  within  the 
Copyright  Act,  1842.  Even  if  the  album  were  a 
book,  there  was  no  infringement  of  copyright  in 
taking  as  a  title  the  words  ;( Castle  Album," 
which  had  not  on  the  evidence  been  proved  to 
have  acquired  a  secondary  sense  in  the  market 
designating  the  plaintiff's  album  exclusively  so 
as  to  fall  within  the  principle  of  Wotherspoon  v. 
Currie  (5  L.  R.,H.L.  508).  Sehave  v.  Schmincke, 

33  Ch.  D.  546 ;  56  L.  J.,  Ch.  892  ;  65  L.  T.  212  ; 

34  W.  R.  700-Chitty,  J. 

Exolusive  Use  of  another  Person's  Name.] — 
F.  sought  to  restrain  C.  and  V.  from  using  the 
Same  **  Richter  Concerts,"  or  from  representing 
themselves  as  owners  of  the  undertaking  known 
by  that  name,  or  from  representing  that  they 
were  carrying  on  the  "Richter  Concerts"  in 
succession  to  F.'s  series ;  and  also  to  restrain  V. 
from  acting  in  the  matter  as  agent  for  C.    F. 
alleged  that  he  engaged  Dr.  Richter  to  conduct 
concerts,  and  in  1879  had  originated  the  "  Richter 
Concerts  "  ;  and  that  no  concerts  had  ever  been 
given  under  that  name  excepting  by  him.    It 
appeared  that  C.  had  announced  a  series   of 
u  Richter  Concerts,"  and  that  V.,  notwithstanding 
a  written  agreement  to  act  as  F.'s  agent,  had  held 
himself  out  as  the  agent  of  C.    It  was  contended 
by  F.  that  he  had  acquired  the  right  to  the  ex- 
clusive use  of  the  term  "  Richter  Concerts,"  as  a 
*  trade  name,"  by  having,  originally  introduced 
the  name  and  obtained  a  list  of  subscribers,  and 
by  the  introduction  of  original  features  as  to  price 
and  music.     Dr.  Richter  had  declined  to  act  any 
longer  as  the  conductor  of  F.'s  concerts,  and  had 
made  arrangements  with  C: — Held,  that  it  re- 
quired a  strong  case  to  be  made  out  to  sustain  a 
claim  to  the  exclusive  use  of  another  person's 
name  as  a  trade  name,  that  no  such  case  had 
been  established  In  the  present  instance,  and 
that  there  was  no  ground  for  saying  that  the 
term    "  Richter    Concerts "   had    become   dis- 
sociated from  Dr.  Richter  himself,  who  was  at 
liberty  to  carry  his  services  to  any  market  he 


chose.    Frank*   v.    ChappcH,  67   L.  T.   141 — 
Chitty,  J. 

Label  on  Champagne  Bottles — Misrepresenta- 
tion—Long User.]— In  July,  1885,  M.,  of  Dizy, 
in  France,  commenced  the  consignment  to  the 
plaintiff  in  London  of  champagne  under  the 
label  "Le  Court  et  Cie.,  Reims,"  which  had 
then  recently  been  registered  in  France  as 
his  trade-mark,  and  to  which  in  December,  1886, 
his  right  was  established  in  proceedings  against 
X.  before  the  French  tribunal.  Further  con- 
signments were  made  to  the  plaintiff  down  to 
July,  1886,  and  advertised  and  sold  by  him  as 
Le  Court  et  Cie. 'a  champagne.  In  March,  1886, 
the  defendant,  trading  under  the  name  of  Short 
&  Co.,  began  to  sell  (chiefly  at  a  wine  bar  across 
the  counter)  champagne  which  was  sent  to  him 
from  France  by  X.  as  Le  Court  et  Cie.'s  cham- 
pagne ;  and  it  appeared  that  in  1882  he  had 
proposed  to  register  in  France  a  label  with: 
the  name  Le  Court  et  Cie.  as  corresponding  to 
his  own  trade-name  of  Short  &  Co.,  but  from 
difficulties  in  obtaining  registration  abandoned 
the  idea.  Upon  motion  by  the  plaintiff  to 
restrain  the  use  of  the  name  and  brand  by  the 
defendant: — Held,  that  the  plaintiff  was  not 
entitled  to  an  injunction  against  the  defendant : 
because  the  evidence  failed  to  show  that  either 
by  long  user  or  reputation  had  the  wine  sold 
under  the  name  and  brand  "Le  Court  et  Cie."' 
become  so  associated  with  the  wine  of  the  plain- 
tiff as  to  enable  him  to  assert  bis  common  law 
right  of  restraining  another  person  from  passing 
off  his  goods  as  those  of  the  plaintiff.  Good- 
fellow  v.  Prince,  35  Ch.  D.  9  ;  66  L.  J.,  Ch.  545  ; 
56  L.  T.  617  ;  35  W.  R.  488— C.  A. 

Bight  of  User  on  Sale  of  Goodwill.]  —  See 
Goodwill. 


2    IMITATION    OF    GOODS. 

Fublio  not  Retail  Dealers  deceived— Right 
to  Injunction  —  Form  of  Account]  —  The 
defendants,  who  were  soap  manufacturers, 
brought  out  their  soap  in  packets  so  closely 
resembling  those  in  which  the  plaintiffs,  who 
were  also  soap  manufacturers,  had  been  in  the 
habit  of  bringing  out  their  soap,  as  to  be  calcu- 
lated to  deceive  purchasers : — Held,  that,  al- 
though the  retail  dealers  who  bought  soap  from 
the  defendants  would  not  be  deceived,  the 
defendants,  by  their  imitation  of  the  plaintiffs' 
packets  put  into  the  hands  of  the  retail  dealers 
an  instrument  of  fraud,  and  ought  to  be  restrained 
by  injunction.  An  injunction  was  accordingly 
granted,  and  an  account  was  directed  of  the 
profits  made  by  the  defendants  in  selling  soap 
in  the  form  in  which  it  was  held  that  they  were 
not  entitled  to  sell  it ;  and  on  an  appeal  the  court 
held  that  the  injunction  had  been  rightly  granted, 
and  that  the  account  was  in  the  proper  form, 
and  ought  not  to  be  limited  by  excluding  from  it 
soap  which  the  retail  dealers  sold  to  persons  who 
bought  it  as  the  defendants'  soap.  Lexer  v. 
Gooduiin,  36  Ch.  D.  1  ;  57  L.  T.  683  ;  36  W.  R. 
177— C.  A. 

♦'Guaranteed  Corset  "—Exclusive  User.] — 
A  firm  of  corset  manufacturers  had  for  upwards 
of  four  years  been  the  exclusive  makers  and 
sellers  of  a  corset  which  they  called  the  "  Guaran 

3  N  2 


1831 


TRADE    AND    TRADE    MARK—  Trade. 


1832 


teed  Corset,"  the  wear  of  which  they  guaranteed 
for  twelve  months  by  undertaking  to  supply  any 
purchaser  with  a  new  corset  in  case  of  complaint 
within  that  period.  The  corset  was  sold  in  a  box 
bearing  a  printed  label  with  the  words  "  Guaran- 
teed Corset'1  in  large  and  conspicuous  type,  and 
in  smaller  type  the  words,  "This  corset  is 
guaranteed  to  wear  twelve  months."  The 
defendants,  a  rival  firm  of  corset  manufacturers, 
subsequently  introduced  a  cheaper  and  inferior 
corset,  the  wear  of  which  they  also  professed  to 
guarantee  for  twelve  months,  and  which  they 
sold  in  a  box  bearing  a  printed  label  with  the 
words  "  Guaranteed  Corset "  in  large  type,  and 
words  in  smaller  type  similar  to  the  plaintiffs1 : 
— Held,  in  an  action  by  the  plaintiffs  for 
an  injunction,  that  the  word  "  guaranteed  "  was 
not  so  distinctively  and  exclusively  applicable  to 
the  plaintiffs1  corset  as  that  the  court  would  re- 
strain the  defendants  from  using  the  same  word 
in  connexion  with  their  corset.  Symington  v. 
Footman,  56  L.  T.  696— Kay,  J.  See  Goodfellow 
v.  Prince,  supra. 

Colourable  Imitation.  ] — W.  registered  the  word 
"  Reversi "  as  a  trade-mark  for  "  a  game  somewhat 
analogous  to  draughts."  The  word  was  the  name 
of  a  game  of  cards  popular  in  France  in  the  16th 
century.  In  the  rules  of  W.'s  game  the  word 
"reverse"  frsquently  occurred,  and  the  game 
depended  on  each  player  reversing  or  turning 
over  his  adversary's  counters.  A.  brought  out  a 
similar  game  under  the  name  "  Annex,"  and  on 
the  labels  of  the  boxes  in  which  he  sold  it,  he 
added  to  the  name  "a  game  of  reverses."  W. 
brought  an  action  to  restrain  A.  from  using  the 
word  "  reverses" : — Held,  that  the  use  of  the 
words  "  a  game  of  reverses,"  which  were  a  fair 
description  of  the  nature  of  the  game,  did  not 
shew  any  design  on  the  part  of  A.  to  pass  off  his 
game  as  that  of  W.,  and  that  an  injunction  ought 
not  to  be  granted.  Waterman  v.  Ay  res,  Water- 
man's Trade-mark,  In  re,  39  Ch.  D.  29  ;  57  L.  J., 
Oh.  893  ;  69  L.  T.  17  ;  37  W.  R.  110— C.  A. 

Exclusive  Bight  to  Use  apart  from  Legis- 
lation.]— In  the  absence  of  any  legislation  for 
the  registration  of  trade-marks,  as  soon  as  a  trade- 
mark has  been  so  employed  in  the  market  as  to 
indicate  to  purchasers  that  the  goods  to  which  it 
is  attached  are  the  manufacture  of  a  particular 
firm,  it  becomes  to  that  extent  the  exclusive 
property  of  that  firm,  and  no  one  else  has  aright 
to  copy  it,  or  even  to  appropriate  any  part  of  it, 
if  by  such  appropriation  purchasers  may  be  in- 
duced to  believe  that  they  are  getting  goods 
which  were  made  by  the  firm  to  which  the  trade- 
mark belongs.  But  the  acquisition  of  such  ex- 
clusive right  to  a  mark  or  name  in  connexion 
vith  a  particular  article  of  commerce  cannot 
entitle  the  owner  of  that  right  to  prohibit  the  use 
by  others  of  such  mark  or  name  in  connexion 
with  goods  of  a  totally  different  character. 
SmerxUU  v.  Schembri,  12  App.  Cas.  453  ;  56  L. 
J.,  P.  C.  61 ;  56  L.  T.  454— P.  0. 


8.    TRADE    LIBELS— SLANDER    OF 

TITLE. 

Wrapper — Descriptive  Title— Injunction.] — 
It  had  been  established  )>y  lit-gation  between  the 
L.  Company  and  A.  that  (1)  the  words  "  Liebig's 
Extract  of  Meat"  is  a  merely  descriptive  title 


open  to  all  the  public ;  (2)  that  it  is  equally  open 
to  the  public  to  sell  the  article  as  "  Baron  Liebig's 
Extract  of  Meat ; "  or  (3)  to  use  a  photograph  of 
Baron  Justus  Von  Liebig,  the  inventor  of  the 
receipt.  A.  then  proceeded  to  use  in  connexion 
with  the  extract  of  meat  sold  by  him,  a  wrapper 
with  a  photograph  of  Baron  Liebig,  and  a  state- 
ment "  this  is  the  only  genuine  brand,11  with  a 
reference  to  the  "favourable  decision"  of  the 
House  of  Lords  and  the  judgments  of  the  various 
judges  who  had  given  judgment  in  the  litigation 
which  had  been  carried  to  the  House  of  Lords. 
The  L.  Company  moved  to  restrain  A.  from  using 
the  wrapper  in  question  : — Held,  that  the  com- 
pany, who  were  notcarryingon  a  fraudulenttrade, 
were  entitled  to  an  injunction,  notwithstanding 
that  they  might  in  their  own  advertisements 
have  to  some  extent  gone  beyond  what  they  were 
entitled  to  say.  Liebig's  Extract  of  Meat  0m- 
pany  v.  Anderson,  55  L.  T.  206 — Chitty,  J. 

Ciroular  Warning  against  Infringement  «f 
Patent — Balance  of  Convenience.]— The  defen- 
dants, who  were  the  owners  of  patents  in  Belgium 
and  England  for  an  invention  for  making  glass 
lamp  globes,  by  a  deed  executed  in  Belgium, 
granted  a  licence  to  the  pliintiffs  to  manufacture 
articles  under  their  invention  in  Belgium,  but 
not  elsewhere.  The  deed  contained  a  clause  for 
submitting  disputes  to  arbitration.  The  plaintiflb 
under  this  licence  manufactured  articles  in 
Belgium  and  sold  them  in  England.  The  defen- 
dants issued  a  circular  warning  persons  engaged 
in  the  trade  that  the  importation  and  sale  of 
articles  made  in  foreign  countries  under  their 
invention,  except  by  themselves,  would  be  a 
violation  of  their  patent.  The  plaintiffs  brought 
an  action  to  restrain  the  issue  of  this  ci  re  alar 
until  the  matters  in  dispute  had  been  determined 
by  arbitration  : — Held,  that  where  a  trade  cir- 
cular is  issued  bona  fide,  an  interim  injunction 
will  not  be  granted  to  restrain  it  unless  it  is  in 
violation  of  some  contract  between  the  plaintiff 
and  defendant,  however  much  the  balance  of 
convenience  may  be  in  favour  of  granting  it 
Sieidti  Anonyme  des  Manufactures  de  Glaees 
v.  Tilghman's  Patent  Sand  Blast  Company,  25 
Ch.  D.  1  ;  53  L.  J.,  Ch.  1  ;  49  L.  T.  451 ;  32  W. 
R.  71  ;  48  J.  P.  68— C.  A. 

The  plaintiffs  were  the  makers  of  "  rainbow 
water  raisers  or  elevators,"  and  they  commenced 
an  action  for  an  injunction  to  restrain  the  defen- 
dants from  issuing  a  circular  cautioning  the 
public  against  the  use  of  such  elevators  as  being 
direct  infringements  of  certain  patents  of  the 
defendants.  The  plaintiffs  subsequently  gave 
notice  of  a  motion  to  restrain  the  issue  of  this 
circular  until  the  trial  of  the  action.  The  de- 
fendants then  commenced  a  cross  action,  claim- 
ing an  injunction  to  restrain  the  plaintiffs  from 
infringing  their  patents  : — Held,  that  as  there 
was  no  evidence  of  mala  fides  on  the  part  of  the 
defendants,  they  ought  not  to  be  restrained  from 
issuing  the  circular  until  their  action  had  been 
disposed  of  ;  but  that  they  must  undertake 
to  prosecute  their  action  without  delay.  Hmm- 
hold  v.  Fairhirn,  51  L.  T.  498— Kay,  J. 

The  defendants  issued  a  circular  to  their 
customers  stating  that  they  were  unable  to 
supply  a  particular  electric  bell  (for  which  the 
plaintiff  bad  obtained  protection)  as  it  had  •*  been 
proved  to  be  an  infringement"  of  another 
patented  bell.  Up  to  date  of  issue  of  the  circular 
no  action  or  proceeding  had  been  commenced 


1833 


TRADE    AND    TRADE    MARK- Trade  Marks. 


1834 


by  any  one  against  the  plaintiff  in  respect  of  his 
bell.  An  action  was  afterwards  commenced,  and 
then  abandoned : — Held,  that  as  the  alleged 
infringement  had  not  been  proved  by  any  proper 
proceeding  before  the  court,  there  was  no 
reasonable  and  probable  cause  for  the  statement 
in  the  circular,  and  the  plaintiff  was  entitled  to 
damages.  Crampton  v.  Swcte,  58  L.  T.  516 — 
Kekewicb,  J. 

Circular  —  Privilege  —  Malice  —  Erroneous 
Statement  of  Judgment  in  former  Action — 
Damages.]— The  plaintiff,  who  traded  as  R.  H.  & 
Co.,  and  the  defendants,  who  traded  as  R.  H.  & 
Sons,  were  rival  manufacturers  of  sail-cloth. 
The  plaintiff  had  formerly  been  a  partner  in  the 
defendant's  firm.  In  1885  the  defendants  brought 
an  action  against  the  plaintiff,  claiming  (inter 
alia)  an  injunction  to  restrain  him  from  re- 

S resenting  his  firm  to  be  the  original  firm  of 
I  H.  k,  Sons.  At  the  trial  of  the  action, 
North,  J.,  dismissed  it,  without  costs  as  to  that 
issue,  and  with  costs  as  to  the  other  issues. 
North.  J.,  was  satisfied  by  the  evidence  that  the 
then  defendant  had  never  made  any  such  repre- 
sentation, but  that  on  two  or  three  occasions  one 
of  his  agent*  without  his  knowledge  or  concur- 
rence had  represented  that  the  then  defendant's 
firm  was  the  original  firm.  The  then  defendant 
repudiated  this  as  soon  as  he  knew  it,  and  at  the 
trial  he  offered  by  his  counsel  to  give  an  under- 
taking that  he  would  never  make  such  a  repre- 
sentation. North,  J.,  desired  that  this  under- 
taking should  be  inserted  in  the  judgment ;  the 
defendant  assented,  and  it  was  accordingly  in- 
serted in  the  judgment  drawn  up  by  the  registrar. 
In  1886  the  present  defendants  distributed  a 
printed  circular,  which  stated  that  they  were  the 
original  firm,  and  after  giving  the  title  of  the 
former  action,  headed  by  the  word  "  Caution," 
proceeded  :  "  By  the  judgment  the  defendant  was 
ordered  to  undertake  not  to  represent  that  his  firm 
is,  or  that  the  plaintiffs'  firm  is  not  the  original 
firm  of  R.  H.  A:  Sons.  Messrs  R.  H.  &  Sons,  finding 
that  serious  misrepresentations  were  in  circula- 
tion to  their  prejudice,  felt  themselves  compelled 
to  bring  the  above  action "  : — Held,  that  the 
circular  contained  an  untrue  statement  of  the 
effect  of  the  judgment  in  the  former  action ; 
that  it  was  a  libel  injurious  to  the  plaintiff's 
trade ;  that  it  was  not  privileged ;  that  the  de- 
fendants had  published  it  maliciously ;  and  that 
the  plaintiff  was  entitled  to  an  injunction,  with 
the  costs  of  the  action.  But  there  being  no  evi- 
dence of  damage  to  the  plaintiff,  except  his  own 
affidavit  that  the  publication  of  the  circular  was 
calculated  to  injure  him,  and  had  injured  him,  in 
his  business,  which  he  said  had  greatly  fallen  off 
since  the  issue  of  it ;  and  the  plaintiff  not  having 
brought  the  action  until  three  months  after  he 
knew  of  the  publication  of  the  circular,  only  5/. 
damages  were  awarded  to  him.  Hayward  A-  Co. 
v.  Hayward  f  &ms,  34  Ch.  D.  198 ;  56  L.  J., 
Ch.  287  ;  65  L.  T.  729  ;  35  W.  R.  392— North,  J. 

Actions  not  abating  by  Death  of  Party.]— 
An  action  for  defamation,  either  of  private 
character  or  of  a  person  in  relation  to  his 
trade,  comes  to  end  on  the  death  of  the 
plaintiff,  but  an  action  for  the  publication  of  a 
false  and  malicious  statement,  causing  damage 
to  the  plaintiff's  personal  estate,  survives : — 
— Held,  therefore,  that  a  claim  for  falsely  and 
maliciously  publishing  a  statement  calculated 


to  injure  the  plaintiff's  right  of  property  in  a 
trade-mark  was  put  an  end  to  by  the  death  of 
the  plaintiff  after  the  commencement  of  the 
action  only  so  far  as  it  was  a  claim  for  libel,  but 
that  so  far  as  the  claim  was  in  the  nature  of  slander 
of  title  the  action  survived,  and  could  be  continued 
by  his  personal  representative,  who  would  be  en- 
titled to  recover  on  proof  of  special  damage. 
Uatehard  v.  Mege,  18  Q.  B.  D.  771 ;  56  L.  J..  Q.  B. 
397  ;  56  L.  T.  662  ;  35  W.  R.  576 ;  51  J.  P.  277— D. 

Injunction  to  restrain.] — See  Defamation, 
1.4. 


4.  CONSPIRACY  TO  INJURE. 

Combination  to  keep  down  Freight! — Rival  Ship- 
owners—Whether Actionable.] — The  plaintiffs 
complained  that  the  defendants  unlawfully  con- 
trived and  conspired  to  prevent  the  plaintiffs 
carrying  on  their  trade  by  forming  themselves 
into  a  conference  offering  a  rebate  of  5  per 
cent,  upon  all  freights  paid  by  those  shippers 
who  shipped  their  cargoes  on  board  conference 
vessels  alone,  to  the  exclusion  of  the  plaintiffs' 
vessels : — Held,  that  the  combination  was  not 
unlawful,  and  that  the  defendants  were  not 
guilty  of  a  misdemeanour ;  that  the  acts  done  in 
pursuance  of  the  combination  were  not  unlawful, 
wrongful,  malicious,  nor  in  restraint  of  trade. 
The  bargain  was  one  the  defendants  bad  a  right 
to  make,  and  they  were  entitled  to  judgment. 
Mogul  Steamship  Company  v.  McGregor,  21 
Q.  B.  D.  544  ;  67  L.  J.,  Q.  B.  541 ;  59  L.  T.  514 ; 
37  W.  R.  286  ;  53  J.  P.  391  ;  6  Asp.  M.  C.  320— 
Coleridge,  C.  J.    Affirmed  37  W.  R.  756— C.  A. 


Interlocutory  Injunction.] — A  confedera- 


tion or  conspiracy  by  an  associated  body  of 
shipowners  which  is  calculated  to  have,  and  has, 
the  effect  of  driving  the  ships  of  other  merchants 
or  owners,  and  those  of  the  plaintiffs  in  par- 
ticular, out  of  a  certain  line  of  trade, — even  though 
the  immediate  and  avowed  object  be  not  to 
injure  the  plaintiffs,  but  to  secure  to  the  con- 
spirators themselves  a  monopoly  of  the  carrying 
trade  between  certain  foreign  ports  and  this 
country,  is,  or  may  be,  an  indictable  offence,  and 
therefore  actionable,  if  private  and  particular 
damage  can  be  shown.  To  warrant  the  court, 
however,  in  granting  an  interim  or  interlocutory 
injunction  to  restrain  the  parties  from  con- 
tinuing to  pursue  the  objectionable  course,  those 
who  complain  must  at  least  6how  that  tbey  have 
sustained  or  will  sustain  "  irreparable  damage," 
— that  is,  damage  for  which  they  cannot  obtain 
adequate  compensation  without  the  special  in- 
terference of  the  court.  Mogvl  Steamship 
Cimpany  v.  M'Gregor.  15  Q.  B.  D.  476  ;  54  L.  J., 
Q.  B.  640 ;  53  L.  T.  268  ;  49  J.  P.  646  ;  5  Asp. 
M.  C.  467  ;  15  Cox,  C.  C.  740— D. 

5.    CONTRACTS    IN    RESTRAINT  OF.— See 

CONTBACT,  HI.  8,  g. 


II.    TRADE  MARKS. 

1.    REGISTRATION. 

a.    Who  may  Retfater. 

Applioant  carrying  on  Business  Abroad.]— 
Whether  in  order  to  entitle  a  person  to  have  a 


1885 


TRADE    AND    TRADE    MARK— Trad*   Marks. 


1836 


trade-mark  registered,  he  must  be  carrying  on 
or  intending  to  carry  on  business  in  England, 
quaere.  Riviere's  Trade-mark,  In  re,  26  Ch.  D. 
48 ;  53  L.  J.,  Ch.  678  ;  50  L.  T.  763  ;  32  W.  R. 
390— C.  A. 


.  Joint  Hark— Termination  of  Joint  Adventure 
— Application  by  One  Party.] — R.  J.,  a  merchant 
in  Manchester,  for  some  time  prior  to  the  passing 
of  the  Trade-marks  Act,  1875,  shipped  cotton 
drills  to  A.  &  Co.,  a  firm  at  Manilla,  for  sale  on 
commission,  the  goods,  in  common  with  other 
goods  sold  by  A.  &  Co.  for  other  people,  bear- 
ing a  trade-mark  representing  the  figure  of 
Britannia,  which  mark  was  the  property  of  A. 
&  Co.  After  the  passing  of  the  act,  doubts 
having  arisen  as  to  the  propriety  of  using  the 
'Britannia  mark,  R.  J.  wrote  to  A.  &  Co.,  suggest- 
ing the  use  of  a  new  design  ;  and  they  sent  back 
a  proposed  trade-mark  which  represented  the 
house  of  business  at  Manilla  of  A.  &  Co.,  with 
their  name  on  the  signboard.  Beneath  were 
three  columns  in  Chinese  characters.  The  first 
represented  "  R.  J.,  Manchester,"  the  second 
contained  the  crest  of  E.  (the  Manilla  partner 
of  A.  &  Co.),  with  words  indicating  that  it  was 
his  "  chop  "  or  mark,  and  the  third  represented 
"A.  &  Co.,  Manilla."  On  the  construction  of 
the  letters  between  the  parties,  the  court  held 
that  there  was  no  contract  that  the  mark  should 
be  the  property  of  R.  J. : — Held,  that  R.  J.,  after 
the  termination  of  the  joint  adventure,  was  not 
entitled  to  register  the  trade-mark  in  his  name, 
and,  semble,  that  if  there  had  been  such  a  con- 
tract, it  could  not  have  been  enforced,  as  the 
trade-mark,  if  registered  as  the  property  of 
B.  J.,  would  have  been  calculated  to  deceive  the 
public.    Jones's  Trade-mark,  In  re,  53  L.  T.  1 — 


Assignees— Goodwill— Rectification.]— M.  and 
R.,  carrying  on  business  as  co-partners  in  New 
York,  instructed  their  agents  in  this  country,  B. 
and  W.,  to  register  two  trade-marks  for  goods  of 
theirs,  of  which  B.  and  W.  had  the  exclusive  sale. 
Such  trade-marks  were  registered  by  B.  and  W. 
as  to  one  in  the  name  of  their  firm,  and  as  to  the 
other  in  the  name  of  W.  only.  B.  and  W.,  having 
no  beneficial  ownership  in  the  trade-marks,  in 
August,  1884,  assigned  them  to  M.  and  R.  In 
December,  1884,  one  of  the  partners  in  the  firm 
of  M.  and  R  retired,  and  by  deed  assigned  all 
his  interest  in  the  business  of  the  firm  and  in  the 
trade-marks  to  the  continuing  partners.  In  De- 
cember, 1885,  another  partner  retired,  and  three 
new  partners  joined  the  firm,  but  no  assignment 
was  executed  by  the  retiring  partner.  On  a 
motion  by  the  present  partners  in  the  firm  of  M. 
and  R.,  and  the  last  retiring  partner,  under  s.  78 
of  the  Patents,  Designs,  and  Trade-marks  Act, 
1883,  that  proper  notices  of  the  assignments  of 
August,  1884,  and  December,  1884,  might  be  en- 
tered on  the  register,  and  that  the  persons  entitled 
under  the  last-mentioned  assignment  might  be 
entered  as  the  present  proprietors  of  the  trade- 
marks:— Held,  that  the  application  might  be 
granted,  as  the  trade-marks  had  been  trans- 
mitted in  connexion  with  the  goodwill  of  the 
business  of  M.  and  R.  within  the  meaning  of 
s.  70  of  the  act.  Wellcome's  Trade-mark,  In  re, 
32  Ch.  D.  213  ;  65  L.  J.,  Ch.  542 ;  54  L.  T.  493  ; 
34  W.  R.  463—  Chitty,  J. 


b.    What  may  be  registered. 
i.  Generally. 

Entire  Class— User  for  part  of  Clatt— Exelu- 
•ive  Title  for  Entire  Glass.] — An  assignee  of  the 
goodwill  of  a  business  with  the  right  to  a  trade- 
mark which  has  been  registered  by  the  assignor 
under  the  Trade-marks  Registration  Act,  1875, 
in  respect  of  an  entire  class,  but  of  which  the 
articles  dealt  with  in  such  business  form  part 
only,  is  not  entitled  to  the  exclusive  user  of  the 
trade-mark  for  the  entire  class,  but  only  for  the 
particular  articles  in  connexion  with  which  it  is 
actually  used,  even  though  the  trade-mark  may 
have  been  on  the  register  for  five  years.  Edward* 
v.  Dennis,  Edwards'  Trade-mark,  In  re,  30  Ch.  D. 
454  ;  55  L.  J.,  Ch.  125  ;  54  L.  T.  112-C.  A.  Re- 
versing 1  C.  &  E.  428— A.  L.  Smith,  J. 

Semble,  it  is  cot  the  intention  of  the  act  that 
a  man  registering  a  trade-mark  for  an  entire 
class,  and  yet  only  using  it  for  one  description 
of  goods  in  that  class,  shall  be  able  to  claim  for 
himself  the  exclusive  right  to  use  it  for  eTeiy 
description  of  goods  in  that  class.  If  he  desires 
to  extend  his  business  and  apply  his  trade-mark 
to  a  new  description  of  goods  in  the  class,  he 
should  have  his  trade-mark  registered  in  respect 
of  those  goods.  Quaere,  whether  a  man  can  claim 
the  exclusive  use  of  a  registered  trade-mark  not 
in  actual  use  in  connexion  with  particular  goods 
at  the  time  of  registration.    lb. 

In  1883  E.  purchased  and  took  an  assignment 
of  the  goodwill  of  the  business  of  an  iron  mer- 
chant and  manufacturer,  and  also  of  the  right 
to  a  trade-mark,  consisting  of  a  device  of  "  Nep- 
tune "  holding  a  trident,  with  the  word  "  Nep- 
tune "  added,  which  had  been  registered  by  the 
assignor  in  1878,  under  the  Trade-marks  Regis- 
tration Acts,  1875  and  1876,  for  the  whole  of 
Class  5,  described  in  the  "  Trade-marks  Journal" 
as  "  unwrought  and  partly  wrought  metals  used 
in  manufacture,"  E.  duly  getting  himself  regis- 
tered as  proprietor  of  the  trade-mark.  The  onlj 
business  actually  carried  on  by  E.  and  his  as- 
signor was  and  had  been  that  of  a  manufacturer 
of  iron  sheets.  In  1880  D.  registered  a  trade- 
mark bearing  the  word  "  Neptune  "  for  "  steel 
wire  and  iron  wire"  in  Class  5,  his  business 
consisting  solely  of  the  manufacture  and  sale  of 
wire.  In  1884  E.  brought  an  action  against  D. 
for  infringement,  on  the  ground  of  the  alleged 
similarity  of  D.'s  trade-mark.  D.  then  applied 
by  summons  under  s.  5  of  the  act  of  1875,  to 
have  the  register  rectified  by  limiting  E.'s  trade- 
mark to  the  articles  in  Class  5  other  than  steel 
and  iron  wire : — Held,  that  inasmuch  as  the 
goods  sold  by  E.  and  D.  were  entirely  distinct, 
E.  was  not  entitled  to  an  injunction : — Held, 
also,  that,  notwithstanding  the  five  years'  regis- 
tration of  E.'s  trade-mark  for  the  whole  of 
Class  5,  his  trade-mark  must  be  limited  to  those 
articles  in  the  class  in  connexion  with  which  it 
was  being  actually  used,  namely,  iron  sheets.  lb. 

Sufficiency  of  T/ser.l— C.  &  Co.  in  1876  regis- 
tered as  a  trade-mark  the  words  "Excelsior 
Spring  Mattress."  In  1883  they  commenced  an 
action  in  the  Palatine  Court  of  the  Duchy  of 
Lancaster  against  B.  to  restrain  him  from  using 
their  trade-mark  "  Excelsior."  R  moved  to 
remove  the  trade-mark  from  the  register  on  the 
ground  that  the  word  " Excelsior"  had  not  been 
used  as  a  trade-mark  before  the  passing  of  the 


1887 


TEADE    AND    TRADE    MARK— Trade  Marks. 


1838 


set  of  1875.  It  appeared  that  the  word  had 
been  used  on  bills  and  notices,  but  always 
applying  to  a  mattress  made  tinder  a  patent  of 
B.'s  predecessors  in  business  which  expired  in 
1*83  ;  that  it  had  been  used  in  combination 
with  a  device  of  a  man  and  a  banner  on  metal 
plates  which  were  affixed  to  the  mattresses ;  that 
an  indiarubber  stamp  containing  the  words 
alone  had  been  made,  and  was  usually  impressed 
upon  the  side  of  the  mattress,  and  that  a  photo- 
graph was  constantly  used  in  selling  the  goods 
which  showed  the  mattress  with  a  label  attached, 
haying  on  it  only  the  words  "  Excelsior  Spring 
Mattress  "  : — Held,  that  there  had  been  sufficient 
user  as  a  trade-mark  and  the  mark  was  rightly 
put  on  the  register.  Chorlton's  Trade-mark, 
In  re,  53  L.  T.  337  ;  34  W.  R.  60— Pearson,  J. 

Where  it  appeared  that  the  customers  of  a  firm 
of  H.  &  Co.  had  for  many  years  been  accus- 
tomed to  ask  for  a  certain  article  by  the  name 
of  "  Coker  Canvas,"  but  it  did  not  appear  that 
the  words  *'  H.'s  Coker  Canvas "  had  been 
stamped  upon  any  of  the  goods  of  the  firm  or 
■advertised  as  a  trade-mark  : — Held,  that  there 
had  been  no  use  by  the  firm  of  the  words  "H.'s 
Coker  Canvas"  as  a  trade-mark.  Hay  ward'* 
Trade-mark,  In  re,  54  L.  J.,  Ch.  1003  ;  53  L.  T. 
487— -Kay,  J. 

Wordi  descriptive  of  Patented  Article— T/eer 
"before  1875.  ]— P.  in  1 876  registered  "  braided  fixed 
stars  "  as  a  trade-mark  for  matches,  alleging  that 
he  had  used  it  as  a  trade-mark  before  the  passing 
of  the  act  of  1875.  He  also  at  the  same  time 
registered  a  label  enveloping  the  boxes  in  which 
his  matches  were  sold,  which  contained  the  words 
**  braided  fixed  stars n  in  two  places  so  as  to  be 
conspicuous  on  each  side  of  the  boxes,  but  also 
contained  a  number  of  other  words.  It  was 
shown  that  at  the  time  when  P.  introduced  the 
term  "braided  fixed  stars"  the  term  "fixed  stars" 
was  known  in  the  trade  as  denoting  a  particular 
•class  of  fusees,  and  that  he  had  just  bought  a 
patent  for  enveloping  the  stems  of  fusees  with 
wire  by  means  of  a  braiding  machine.  This 
patent  expired  in  August,  1881.  It  appeared  from 
the  evidence  that  P.  had  not  before  the  act  used 
44  braided  fixed  stare"  separately  as  a  trade-mark, 
or  otherwise  than  as  a  part  of  the  above- 
mentioned  label.  In  October,  1881,  an  applica- 
tion was  made  by  a  rival  trader  to  expunge  the 
registration  : — Held,  that  the  registration  must 
be  expunged,  for  that  to  entitle  P.  to  register 
these  words  as  a  trade-mark  he  must  before  the 
act  have  used  them  as  such  alone,  and  not  merely 
in  conjunction  with  otherwords.  Palmer's  Trade- 
mark.  In  re,  24  Ch.  D.  504  ;  50  L.  T.  30;  32 
W.  I>.  306—— C  A. 

User  of  Word  in  Foreign  Country.] —Whether 
a  word  used  alone  as  a  trade-mark  in  a  foreign 
country  before  the  passing  of  the  Trade  Marks 
Act,  1875,  can  be  registered  under  the  act  if  it 
has  not  been  so  used  in  this  country,  quaere. 
Leonard  v.  Wells,  Leonard's  Trade-mark,  In  re, 
26  Ch.  D.  288 ;  53  L.  J.,  Ch.  603  ;  51  L.  T.  35— 
•C.  A.    Aftirming  32  W.  R.  530— Pearson,  J. 

Fraudulent  User  of  Foreign  Trade-mark.] — 
In  1718  (J.'s  firm,  who  were  manufacturers  of 
iron  at  Leufsta,  in  Sweden,  registered  in  Sweden, 
as  their  trade-mark,  the  letter  L.  inclosed  in  a 
ring  or  hoop,  commonly  known  as  the  "  hoop  L." 
In   1878  they  registered  in  England,  under  the 


Trade  Marks  Registration  Act,  1875,  the  hoop  L. 
mark  alone,  and  also  in  combination  with  the 
word  "  Leufsta."  Since  1835  they  had  exported 
iron  of  the  highest  quality  to  England  for  the 
manufacture  of  a  particular  kind  of  steel  known 
as  "blister  steel."  The  hoop  L.  mark  was 
stamped  upon  the  iron  in  combination  either 
with  the  name  of  their  English  consignee,  or 
with  the  word  "  Leufsta,"  or  with  both.  They 
registered  these  in  Sweden  as  bye-stamps  in 
addition  to  their  original  hoop  L.  mark.  H.s 
firm,  who  were  English  iron  and  steel  and  edge 
tool  manufacturers,  had  for  fifty  years  past  used 
the  hoop  L.  mark,  in  combination  with  the  name 
of  their  firm,  as  their  trade  mark  upon  blister 
steel  manufactured  by  them  from  inferior  brands 
of  Swedish  iron.  For  this  purpose  it  was  neces- 
sary to  cut  off  the  Swedish  mark,  as  the  bare  of 
iron  when  converted  into  steel  retained  upon 
their  surface,  unless  intentionally  obliterated, 
any  marks  which  might  be  stamped  upon  them, 
A  similar  practice  was  adopted  by  thirty  other 
English  firms  of  iron  and  steel  manufacturers, 
but  this  practice  did  not  come  to  G.'s  knowledge 
until  1881.  H.  applied,  under  the  Trade  Marks 
Registration  Act,  1875,  to  register  the  hoop  L. 
mark  in  combination  with  the  words  "  Brades 
Co.,  Warranted  :" — Held,  that  the  application 
must  be  refused,  with  costs,  upon  the  ground 
that,  whatever  might  have  been  the  practice  as 
to  the  user,  it  was  one  which  had  its  inception 
in  fraud,  and  was  calculated  to  deceive,  and 
therefore,  though  apparently  established  by  time 
and  usage,  could  not  receive  the  sanction  of  the 
court.  Heat  on"  s  Trade-mark,  In  re,  27  Ch.  D. 
570  ;  53  L.  J.,  Ch.  959  ;  51  L.  T.  220 ;  32  W.  R. 
951— Kay,  J. 


ii.  Fancy  Words — Words  not  in  Common  Use. 

Name  for  Hew  Article.} — A  name  which  has 
been  given  to  a  new  article,  and  which  is  the 
only  name  by  which  it  is  known,  cannot  be  a 
"  fancy  word  "  as  regards  that  article.  Water* 
man  v.  Ay  res,  Waterman's  Trade-mark,  In  re, 
infra — Per  Fry,  L.  J. 

Descriptive  of  Pattern  — "Gem."] —Where 
a  name  or  word  was  originally,  or  has  come 
to  be,  descriptive  of  the  article  to  which  it 
is  applied,  so  that  while  indicating  what  the 
article  is,  it  does  not  connect  it  with  any  par- 
ticular manufacturer,  such  name  or  word  cannot 
be  registered  as  a  trade- mark.  Accordingly,  where 
at  the  time  of  an  application  made  in  1884  for 
the  registration  of  the  word  "  gem  "  as  a  trade- 
mark for  air-guns  which  in  1881  had  been  newly 
introduced  into  England  and  called  "  Gem  "  air- 
guns  by  the  applicant,  the  word  "  gem1'  had  be- 
come descriptive  of  a  particular  pattern  of  gun, 
and  not  merely  of  the  applicant  s  gun,  it  was 
held  that  the  word  could  not  be  registered  as  the 
applicant's  trade-mark  for  air-guns.  The  word 
"  gem "  having  now  come  to  indicate  the 
excellence  of  the  article  to  which  it  is  applied  is 
'•not  now  a  "fancy  word"  within  the  meaning 
|  of  the  Patents,  Designs,  and  Trade  Marks  Act, 
1883,  s.  64,  sub-s.  1  (c).  Arbenz.  In  re,  "  Qem  " 
Trade-mark,  In  re,  35  Ch.  D.  248  ;  56  L.  J.,  Ch. 
524  ;  56  L.  T.  252  ;  35  W.  R.  527— C.  A. 

"  Sanitas ."]— "  Sanitas "  is  not  a  "  fancy  word 
not  in  common  use"  within  the  meaning  of 
sub-s  1  (c)  of  s.  64  of  the  Patents,  Designs,  and 


1839 


TRADE    AND    TRADE    MARK—  Trade  Marks. 


1840 


Trade  Marks  Act,  1883.  and  cannot  therefore  be 
registered.  "  Sanitas "  Trade-mark,  In  re,  58 
L.  T.  166— Kay,  J. 

"Bed,  White  and  Blue."]— An  application  to 
proceed  with  the  registration  of  the  words  "  Bed, 
White,  and  Blue,"  as  "  fancy  words  not  in  com- 
mon use"  within  the  meaning  of  s.  64  of  the 
Patents,  Designs,  and  Trade  Marks  Act,  1883, 
was  refused,  llanwnx  Trade-mark,  In  re,  37 
Oh.  D.  112  ;  57  L.  J.,  Ch.  173  ;  57  L.  T.  859  ;  36 
W.  B.  134— Kay,  J. 

"  Beverti"]— W.  registered  the  word  "Re- 
verei  "  as  a  trade-mark  for  "  a  game  somewhat 
analogous  to  draughts."  The  word  was  the 
name  of  a  game  of  cards  popular  in  France  in 
the  16th  century.  In  the  rules  of  W.'s  game 
the  word  "  reverse  "  frequently  occurred,  and 
the  game  depended  on  each  player  reversing 
or  turning  over  his  adversary's  counters.  A. 
brought  out  a  similar  game  under  the  name 
"Annex,"  and  on  the  labels  of  the  boxes  in 
which  he  sold  it.  he  added  to  the  name  "  a  game 
of  reverses."  W.  brought  an  action  to  restrain 
A.  from  infringing  the  trade-mark,  and  A.  applied 
to  remove  the  trade-mark  from  the  register : 
— Held,  that  as  the  woid  "  Beversi "  would 
suggest  to  an  ordinary  Englishman  the  idea  that 
the  game  had  something  to  do  with  reversing,  it 
was  not  a  word  which  obviously  could  not  have 
any  reference  to  the  character  of  the  article. 
Van  Dvzer's  Trade-mark,  In  re  (34  Ch.  D.  623, 
639)  ;  that  it  therefore  was  not  a  "  fancy  word," 
and  ought  to  be  removed  from  the  register. 
Waterman  v.  Ayres,  Waterman's  Trade-mark, 
In  re,  39  Ch.  D.  29  ;  57  L.  J.,  Ch.  893  ;  59  L.  T. 
17;  87  W.  B.  110— C.  A. 

"Hand  Grenade  Tire  Extinguisher."]— The 
words*4  Hand  Grenade  Fire  Extinguisher  "  are 
not  capable  of  registration  as  fancy  words  under 
the  Patents,  &c,  Act,  1883, s.  64,  as*  trade-mark 
for  an  instrument  consisting  of  a  glass  vessel  con- 
taining a  fire-extinguishing  fluid  intended  to  be 
liberated  by  means  of  the  vessel  being  broken 
when  thrown  by  the  hand.  Harden  Star  Hand 
Grenade  Company,  In  re,  55  L.  J.,  Ch.  596  ;  54 
L.  T.  884— Chitty,  J. 

"Melrose"— " Electric."]— The  fanciful  or 
abnormal  use  of  a  word  not  in  itself  obviously 
non-descriptive,  does  not  make  it  a  "fancy 
word "  within  the  Patents,  Designs,  and  Trade 
Marks  Act,  1 883,  s.  64,  sub-s.  1  (c),  so  as  to  be 
capable  of  registration  as  a  trade-mark.  Accord- 
ingly applications  for  a  direction  to  the  Comp- 
troller-General to  proceed  with  the  registration 
as  trade-marks  of  the  words  "  Melrose  Favourite 
Hair  Bestorer"  and  "  Electric  Velveteen,'*  were, 
in  both  cases,  refused.  Trade-mark  Alpine, 
In  re  (29  Ch.  D.  877)  questioned.  Van  Dvzer's 
Trade-mark,  In  re  ;  Leafs  Trade-mark,  In  re, 

34  Ch.  D.  623  ;   56  L.  J.,  Ch.  370 ;  66  L.  T.  286  ; 

35  W.  B.  294— C.  A. 

"  Jubilee."]— The  word  "  Jubilee  "  is  not  ob- 
viously meaningless  as  regards  paper  or  note- 
paper,  because  it  may  signify  that  the  paper  is 
Sroduced  in  the  Jubilee  year  (1887)  of  Her 
lajesty's  reign,  and  it  is,  moreover,  a  common 
English  word  used  by  well-known  English 
authors.  Consequently  the  word  "jubilee"  is 
not  capable  of  registration  as  a  trade-mark  for 


paper,  as  a  fancy  word  within  a.  64  of  the 
Patents,  Designs,  and  Trade  Marks  Act,  1881 
Towgood  v.  Pirie,  56  L.  T.  394 ;  35  W.  R.  72U— 
Chitty,  J. 

"National  Sperm."]— An  application  was 
made  for  an  order  upon  the  Comptroller  of 
Trade-marks  to  register  a  mark  having  the  word* 
"  Price's  Patent  Candle  Company  "  in  common 
letters  round  the  upper  border  and  "National 
Sperm  "  in  the  centre,  with  the  address  of  the 
company  round  the  lower  border :— Held,  thst 
the  words  "  National  Sperm  "  not  being  fancy 
words  "  not  in  common  use,"  the  label  did  not 
fulfil  the  requirements  of  the  Patents,  Designs, 
and  Trade-marks  Act,  1883,  s.  64.  Price* 
Patent  Candle  Company.  In  re,  27  Ch.  D.  681 ; 
54  L.  J.,  Ch.  210 ;  51  L.  T.  653— Pearson,  J. 

"Alpine."]— The  word  "Alpine"  and  words 
of  such  class,  although  words  in  common  use  and 
not  strictly  fancy  words,  may,  when  applied  to 
articles  such  as  woollen  and  cotton  goods,  be 
registered  as  a  trade-mark,  as  they  are,  if  not 
"fancy  words,"  at  least  fanciful  words  when 
applied  to  such  goods,  and  so  fall  within  s.  f4„ 
sub-s.  1  (c),  of  the  Patents,  Designs,  and 
Trade  Marks  Act,  1883  (46  &  47  Vict.  c.  ST). 
Trade-mark  "Alpine,"  In  re,  29  Ch.  D.  877; 
54  L.  J.,  Ch.  727  ;  53  L.  T.  79  ;  33  W.  R.  725- 
Chitty,  J. 

"  Strathmore."]— The  plaintiff,  who  was  a  wine 
and  spirit  merchant,  registered  a  trade-mark 
together  with  the  words  "  Strathmore  Wend* 
which  was  the  name  of  a  certain  blend  of  various 
whiskeys  made  and  sold  by  him,  and  be  adver- 
tised the  same  very  widely.  Many  of  the  plain- 
tiff's customers  were  in  the  habit  of  ordering- 
his  whiskey  by  calling  it  "  Strathmore  whiskey,'* 
omitting  the  word  "blend,"  and  the  whisker 
became  known  in  the  market  as  "  Strathmore 
whiskey."  The  defendant  subsequently  regis- 
tered a  trade-mark  and  the  name  of  "  Strath- 
more "  for  a  whiskey  blended  and  sold  by  him. 
The  question  was  whether  the  use  of  the  word 
"  Strathmore  "  by  the  defendant  was  calculated 
to  deceive: — Held,  that  the  word  " blend "de* 
scribed  simply  the  operation  of  manufacturing, 
and  was  not  an  essential  part  of  the  name  of  the 
plaintiff's  whiskey;  that  the  word  "Strath- 
more "  was  a  fancy  name  ;  that  the  use  of  that 
word  by  any  person,  other  than  the  plaintiff,  a* 
a  name  for  whiskey  would  be  calculated  to 
deceive ;  and  that  the  defendant  must  be  re- 
strained by  injunction  from  using  the  word 
either  as  part  of  his  trade-mark  or  otherwise. 
Held,  also,  that  it  was  not  lawful  for  the  defen- 
dant to  register  the  word  "  Strathmore  "  in  com- 
bination with  his  trade-mark,  and  that  the 
register  must  be  rectified  by  striking  out  the 
word.    Blair  v.  Stock,  52  L.  T.  123— Kay,  J. 


iii.  Distinctive  Device,  Word,  Mark,  ett. 

Independently  of  Colour.] — Under  s.  67  of  the 
Patents,  Designs,  and  Trade  Marks  Act,  1883,  a 
trade-mark  may  be  registered  in  any  colour  or 
colours  ;  but,  having  regard  to  s.  64,  it  most  be 
a  trade-mark  that  is  distinctive  independently 
of  colour.  A  trade-mark  of  which  the  only  dis- 
tinction is  colour  cannot  be  registered.    Hem- 


1841 


TRADE    AND    TRADE    MARK-  Trade  Marks. 


1842 


son's  Trade-mark,  In  re%  37  Ch.  D.  112  ;  57  L.  J., 
Ch.  173 ;  57  L.  T.  859  ;  36  W.  R.  134— Kay,  J. 

In  1872  H.,  a  wholesale  grocer,  commenced 
using,  for  French  coffee,  a  red,  white  and  blue 
label,  and  in  1881  he  registered  it  under  the 
Trade  Marks  Registration  Act,  1875,  in  class  42, 
for  "  coffee  "  only.  The  label  as  registered  was 
shaded  so  as  to  represent  three  colours,  across  it 
being  printed  the  words  "  Red,  White  and  Blue." 
After  the  passing  of  the  Patents,  Designs,  and 
Trade  Marks  Act.  1883,  H.  applied  for  the  regis- 
tration of  a  red,  white  and  blue  label  (in  colours) 
for  the  whole  of  the  goods  in  class  42,  but  the 
comptroller  refused  to  register  the  label  as  not 
being  sufficiently  distinctive.  On  a  motion  by 
H.  for  an  order  on  the  comptroller  to  proceed 
with  the  registration  : — Held,  that,  having  re- 
gard to  ss.  64  and  67  of  the  act,  the  label  was 
not  capable  of  registration  as  it  possessed  no  dis- 
tinctive character  independently  of  the  colours. 
lb. 


"Special  and  Distinctive  Wordi."]— A  "special 
and  distinctive  word"  used  in  the  definition  of 
a  trade-mark  in  s.  10  of  the  Trade  Marks  Regis- 
tration Act,  1875,  means  a  word  which  distin- 
guishes the  goods  to  which  it  is  attached  as 
goods  made  or  sold  by  the  owner  of  the  mark  ; 
and  by  using  some  additional  words  so  as  to 
induce  the  general  public,  as  distinguished  from 
persons  in  the  secrets  of  the  particular  trade 
who  would  not  be  deceived,  to  believe  that 
goods  so  marked  are  of  foreign  brand  and  manu- 
facture,  the  inventor  of  the  original  word  is  pre- 
cluded from  saying  that  such  word  is  distinctive 
of  his  own  manufacture,  so  as  to  be  capable  of 
registration  as  his  trade- mark.  Wood's  Trade- 
mark, In  re,  Wood  v.  Lambert ,  32  Ch.  D.  247  ; 
65  L.  J.,  Ch.  377  ;  54  L.  T.  314— C.  A.  And  see 
Harbord,  In  re,  infra. 

An  application  was  made  for  an  order  upon 
the  Comptroller  of  Trade-marks  to  register  a 
nrark  having  the  words  "  Price's  Patent  Candle 
Company"  in  common  letters  round  the  upper 
border  and  "  National  Sperm "  in  the  centre, 
with  the  address  of  the  company  round  the 
lower  border  : — Held,  that  the  name  of  the  firm 
printed  in  common  letters  not  being  distinctive, 
the  label  did  not  fulfil  the  requirements  of  the 
Patents,  Designs,  and  Trade  Marks  Act,  1883, 
a,  C4.  Price 's  Patent  Candle  Company,  In  re, 
27  Ch.  D.  681  ;  54  L.  J.,  Ch.  210  ;  51  L.  T.  653— 
Pearson,  J. 

-Distinctive  Mark."]— In  1861  the  plaintiffs 
registered  a  design  for  the  shape  of  blocks  of 
black  lead,  being  a  cylinder  terminated  by  a 
dome  at  one  end.  From  that  time  they  sold 
black  lead  in  boxes,  upon  which  a  black  dome 
was  impressed,  and  they  imprinted  a  dome  upon 
each  block  of  black  lead.  This  they  did  without 
regard  to  the  shape  of  the  blocks  they  sold,  and 
there  was  evidence  that  the  term  ''  dome  black 
lead  "  had  become  known  in  the  trade  as  de- 
noting black  lead  of  the  plaintiff's  manufacture. 
In  1877  they  registered  a  black  dome  as  their 
trade-mark  for  "  black  lead."  The  plaintiffs 
having  brought  an  action  to  restrain  infringe- 
ment of  their  trade-mark,  the  defendants  applied 
to  have  it  expunged  from  the  register  : — Held, 
that  there  was  no  reason  why  a  dome  should  not 
be  a  distinctive  mark  for  black  lead,  that  the 
evidence  showed  it  to  be  in  fact  distinctive,  that 


it  was  therefore  capable  of  registration  as  a  trade- 
mark. James's  Trade-mark,  In  re,  or  James  v^ 
Parry,  33  Ch.  D.  392  ;  55  L.  J.,  Ch.  915 ;  55. 
L.  T.  415  ;  35   W.  R.  67— C.  A. 


Separate  User  of  Distinctive  Words  before* 
1876.] — In  1877  Perry  Davis  &  Son  were  regis- 
tered as  proprietors  of  a  trade-mark  consisting  of 
the  words  *•  Pain  Killer,"  in  respect  of  which 
they  claimed  user  for  forty  years  prior  to  regis- 
tration,  in  connexion  with  a  medicine  sold  by* 
them.  On  an  application  by  L.  for  the  removal 
of  the  name  from  the  register,  the  evidence- 
showed  that,  although  the  medicine  had  been, 
spoken  of  and  ordered  as  "  Pain  Killer,"  it  had 
not  been  sold  under  that  name  alone.  The* 
wrapper  round  the  bottles,  and  a  label  attached 
to  the  bottles,  described  the  article  as  "  Perry 
Davis'  Vegetable  Pain  Killer;"  on  the  bottles* 
were  stamped  the  words, *'  Davis'  Vegetable  Pain 
Killer,"  and  the  government  stamp  attached 
bore  the  description  "  Pain  Killer "  alone  : — 
Held,  that  as  the  words  "  Pain  Killer"  had  not 
been  used  alone  as  a  trade-mark  before  t be- 
passing  of  the  Trade  Marks  Registration  Act^ 
1875,  they  were  not  a  proper  mark  for  registra- 
tion nnder  s.  10  of  that  act : — Held,  also  (by- 
Fry  and  Lopes,  L.JJ.),  that  the  words  were  not 
'* special  and  distinctive  words"  within  the- 
meauing  of  that  section.  Quaere,  whether  words, 
must  be  special  and  distinctive  from  their  owa 
proper  nature  or  internal  force,  or  whether  they 
may  acquire  a  distinctive  character  by  user  as. 
applied  to  goods.  Harbord,  In  re,  58  L.  T.  69& 
— C.  A. 

In  order  to  obtain  registration  of  a  word  aa 
having  become  **  distinctive  "  within  s.  64,  sub-s.. 
3,  of  the  Trade  Marks  Act,  1883,  by  user  or 
recognition  in  the  trade,  such  user  or  recognition 
must  have  been  prior  to  August,  1875.  Accord- 
ingly applications  for  a  direction  to  the  Comp- 
troller-General to  proceed  with  the  registration^ 
as  trade-marks  of  the  words  "  Melrose  Favourite 
Hair  Restorer "  and  "  Electric  Velveteen,"  the, 
use  of  which  by  the  applicants  would,  indepen- 
dently of  the  act,  by  user  and  recognition  in  the- 
trade  since  August,  1875,  have  been  entitled  to* 
protection,  were,  in  both  cases,  refused.  Van 
Duzers  Trade-mark,  In  re;  Leaf's  Trade-mark* 
In  re,  U  Ch.  D.  623  ;  56  L.  J.,  Ch.  370  ;  56  L.  T- 
286  ;  34  W.  R.  294— C.  A. 

In  order  to  entitle  a  person  to  register  a  trade* 
mark  under  s.  10  of  the  Trade  Marks  Registration 
Act,  1875,  consisting  of  special  and  distinctive- 
words,  or  combination  of  figures  or  letters,  used 
as  a  trade- mark  before  the  passing  of  that  act,, 
the  words  must  have  been  used  as  a  trade-mark 
by  themselves,  and  not  in  conjunction  with  any 
other  device.  In  1876  S.  registered  the  worda 
"  Diamond  Cast  Steel,"  as  a  trade-mark  for  steel 
and  for  files.  The  words  were  never  used  on 
goods  by  themselves,  but  always  in  combination, 
with  a  device  and  a  name.  The  words  were, 
however,  sometimes  stamped  on  one  side  of  the* 
goods,  whilst  the  device  and  name  were  stamped 
on  the  reverse  side.  Upon  an  application  to> 
rectify  the  register  of  trade-marks  by  expunging- 
this  trade-mark :  -  Held,  that  the  case  was  within 
the  principles  upon  which  Palmer's  Trade-mark* 
In  re  (24  Ch.  D.  504)  was  decided;  and  that 
as  there  bad  been  no  separate  user  of  the  worda 
as  a  trade-mark,  the  same  ought  not  to  have  been 
registered,  and  must,  therefore,  be  expunged  from 


1848 


TRADE    AND    TEADE    MARK—  Trade  Marks. 


1844 


-the  register.    Spencer's  Trade-mark,  In  re,  54 
L.  T.  659—  C.  A. 


"Heading"— "ValToline."]— L.  and  E. 


invented  in  1873  a  process  for  making  a  certain 
'description  of  lubricating  oil  which  they  called 
""  Valvoline,"  and  in  that  year  registered  in 
America  as  their  trade-mark  the  word  accom- 
panied by  a  device.  In  August,  1877,  they  regis- 
tered the  same  trade-mark  in  England,  and  in 
February,  1878,  registered  the  word  "  Valvoline" 
alone  as  their  trade-mark.  After  this  mark  had 
■been  five  years  on  the  register  they  commenced 
•an  action  against  W.  to  restrain  him  from  selling 
under  the  name  of  Valvoline  any  oil  not  made 
by  the  plaintiffs.  W.  moved  to  rectify  the 
.register  by  striking  out  the  trade-mark  "  Valvo- 
iline."  The  court  came  to  the  conclusion  on  the 
-evidence  that  L.  and  K.  had  not  used  "  Valvoline  " 
salone  as  a  trade-mark,  either  in  America  or 
England,  before  the  passing  of  the  Trade  Marks 
.Registration  Act,  1875,  but  only  in  conjunction 
•with  a  device,  and  that  "  Valvoline  "  was  a  word 
invented  to  describe  the  particular  class  of  oil  at 
the  same  time  as  the  process  was  invented,  and 
was  used  as  a  descriptive  term  for  that  particular 
kind  of  oil.  The-  process  was  not  the  subject  of 
«  patent : — Held,  that  a  single  word  cannot  be 
registered  under  the  act.  on  the  ground  that  it 
v/as  used  as  a  "heading,"  unless  it  was  so  used 
before  the  passing  of  the  act ;  and  that,  therefore, 
the  trade-mark  "Valvoline"  must  be  removed 
from  the  register.  Leonard  v.  Wellx,  Leonard'* 
Trade^nark,  In  rey  26  &..  D.  288  ;  53  L.  J.,  Ch. 
-603 ;  51  L.  T.  35— C.  A.  Affirming  32  W.  R. 
-530— Pearson,  J. 

"  Distinctive  Devioe"— Portrait— Words  Pub- 
lic! Juris.  ] — A  device  consisting  of  a  portrait  of 

the  original  inventor  of  the  article  sold,  with 

words  above  and  below  it,  the  essential  portion 
-of  which  have  become  the  common  property  of 

the  trade  and  pnblici  juris,  is  not  a  distinctive 
device  within  s.  10  of  the  Registration  of  Trade 

Marks  Act,  1875  (repealed  by  46  &  47  Vict.  c.  57), 
-and  cannot  be  registered  as  a  trade-mark  under 

that  act.  Anderson's  Trade-mark,  In  re,  54  L. 
-J.,  Ch.  1084^-C.  A.    Affirming  26  Ch.  D.  409  ;  32 

W.  R.  677— Chitty,  J. 


Descriptive  Words.] — Where  one  person 


registers  under  the  Trade  Marks  Registration 
Act,  1875,  a  trade-mark  consisting  of  a  distinctive 
-device,  together  with  a  word  descriptive  of  the 
•  article  to  which  the  mark  is  to  be  applied,  another 
:  person  is  entitled,  notwithstanding  such  registra- 
tion, to  register  for  the  same  goods  a  trade-mark 
^consisting  of  a  different  distinctive  device,  toge- 
.  ther  with  a  descriptive  word  identical  with  or 
•similar  to  the  word  comprised  in  the  earlier 
trade-mark.     IlorsburglCs  Application,  In  re, 
53  L.  J.,  Ch.  237,  n. ;  50  L.  T.  23,  n. ;  32  W.  R. 
-530,  n.— Jessel,  M.R. 


iv.  Similarity — Calculated  to  Deceive. 

Duty  of  Comptroller.] — Section  72,  sub-B.  2,  of 
the  Patents,   Designs,  and   Trade  Marks  Act, 

.  1883,  provides  that,  "  The  comptroller  shall  not 
register  with    respect   to    the  same  goods,  or 

-description  of  goods,  a  trade-mark  so  nearly 
resembling  a  trade-mark  already  on  the  register 

>with  respect  to  such  goods,  or  description  of 


goods,  as  to  be  calculated  to  deceive."  The 
comptroller  had  refused  to  register  a  trade- 
mark in  respect  of  linen  and  hemp  piece-goods, 
on  the  ground  that  it  too  closely  resembled  three 
trade-marks  which  had  been  already  registered 
in  the  same  class  in  1876  and  1884.  On  a 
summons  to  direct  the  comptroller  to  proceed 
with  registration  of  the  trade-mark :— Held, 
that,  though  it  were  a  case  in  which  the 
similarity  might  not  be  such  as  to  induce  the 
court  on  that  fact  alone  to  grant  an  injunction, 
it  was  the  duty  of  the  comptroller  to  consider, 
having  regard  to  the  course  of  trade,  whether 
the  trade-mark  so  nearly  resembled  the  other  as 
to  be  calculated  to  deceive,  and  he  would  be 
justified  in  refusing  to  register  a  trade-mark  so 
nearly  resembling  another  that  registration 
would  encourage  litigation  ;  and  that  this  trade- 
mark was  likely  to  mislead  persons  wishing 
to  buy  linen  stamped  with  one  of  the  earlier 
trade-marks.  Speer,  In  re,  55  L.  T.  880— Kay, J. 
See  also  Price's  Patent  Candle  Company,  In  n, 
post,  col.  1849. 

Old  Hark.] — An  application  made  in  Novem- 
ber, 1884,  by  an  American  firm  of  oil  manufac- 
turers for  the  registration  under  the  Act  of  1S83 
of  a  trade-mark  for  illuminating  oils,  which 
mark  had  been  used  by  them  in  America  since 
1872,  and  had  been  known  in  England  as  the 
"  White  Rose  "  mark  prior  to  1875,  was  refused 
by  the  comptroller  upon  the  ground  that  there 
had  been  on  the  register  since  1878  a  similar 
mark  for  illuminating  oils  called  the"Rcsaline'' 
mark,  of  which  an  English  firm  were  the  pro- 
prietors : — Held,  that  although  there  was  enough 
similarity  between  the  two  marks  to  render  it 
possible  for  the  public  to  mistake  the  one  for 
the  other,  yet  as  the  "  White  Rose rt  was  to  all 
intents  and  purposes  an  old  mark,  it  ought  to  be 
admitted  to  registration.  "  White  Rose*  Trade- 
mark,  In  re,  30  Ch.  D.  505  ;  64  L.  J.,  Ch.  961  ; 
53  L.  T.  33  ;  33  W.  R.  796— Kay,  J. 

Mode  of  Comparison.] — When  comparing  a 
trade-mark  tendered  for  registration  with  an- 
other mark  already  on  the  register  or  assigned 
by  the  Cutlers'  Company,  Sheffield,  for  the 
purpose  of  ascertaining  whether  the  new  mark 
so  nearly  resembles  the  old  one  as  to  be  calcu- 
lated to  deceive,  the  court  will  have  regard  to 
the  nature  of  the  goods,  to  the  nature  and  sue 
of  the  mark,  to  the  mode  of  affixing  it  to  the 
goods,  to  the  probable  result  in  practice,  and  to 
all  the  circumstances  of  the  case,  and  if,  having 
regard  to  such  circumstances,  the  new  mark 
would  be  likely  to  be  mistaken  for  the  old  one, 
registration  will  be  refused.  Rosing' s  Applica- 
tion, In  re,  54  L.  J.,  Ch.  975  (n.)— C.  A. 

R.  applied  for  the  registration  of  a  new  mark 
for  cutlery  and  metal  goods  included  in  classes 
12  and  13,  such  trade-mark  representing  a  part 
of  his  armorial  bearings,  and  consisting  of  a 
carved  horn,  with  a  twist  in  the  middle,  and 
surmounted  by  two  roses.  The  application  was 
opposed  by  the  Cutlers'  Company  of  Sheffield, 
on  the  ground  that  the  mark  so  nearly  resembled 
a  Sheffield  mark  for  similar  articles  assigned 
forty-five  years  previously  to  H.,  as  to  be  calcu- 
lated to  deceive.  H.'s  mark  consisted  of  a 
curved  horn,  suspended  by  a  looped  cord.  The 
marks  were  sufficiently  distinct  when  printed  in 
a  large  size,  but  the  Court  of  Appeal  being  of 
opinion  that,  in  practice,  when  the  two  marks 


1845 


TRADE    AND    TRADE    MARK— Trade  Marks. 


1846 


were  stamped  in  a  small  size  on  email  metal 
articles,  and  haying  regard  also  to  the  proba- 
bility of  blurring  taking  place  in  the  process  of 
stamping,  the  one  mark  would  be  likely  to  be 
mistaken  for  the  other : — Held,  that  registration 
most  be  refused.    lb. 

L.  had  used  from  1864,  in  respect  of  goods  in- 
cluded in  class  13,  a  trade-mark  consisting  of 
the  head  of  Minerva,  down  to  and  including  the 
shoulders,  the  head  bearing  a  helmet  with  ring- 
lets hanging  down  behind.  In  1884,  being  about 
to  extend  his  business  to  class  12,  he  applied  to 
register  for  that  class  the  same  head  with  the 
word  "  Athena  "  under  it.  This  application  was 
opposed  by  B.,  who  had  used  from  1869  a  cutler's 
mark,  consisting  of  a  head  with  the  word  "way" 
under  it.  The  head  had  a  sort  of  wig  upon  it, 
with  small  curls  behind,  and  included  the  neck 
and  part  of  the  shoulders.  In  1884  B.  regis- 
tered this  mark  under  the  Act  of  1883,  as  an  old 
cutler's  mark,  bat  the  design  actually  registered 
departed  from  the  old  mark  which  he  used,  the 
head  on  the  register  being  an  uncovered  head 
with  a  few  sparse  hairs  upon  it,  and  taking  in 
only  a  small  portion  of  the  neck  and  no  part  of 
the  shoulders  : — Held,  that  the  question  whether 
a  new  mark  is  so  like  another  as  to  be  calculated 
to  deceive  is  to  be  decided  by  considering 
whether  the  new  mark  is  so  like  the  other  that 
when  both  are  fairly  used  one  is  likely  to  be 
mistaken  for  the  other,  regard  being  had  to  size, 
the  material  on  which  the  mark  is  to  be  im- 
pressed, the  effects  of  wear  and  tear,  and  other 
surrounding  circumstances ;  that  L.'s  mark  was 
to  be  compared  with  the  mark  B.  had  put  on  the 
register,  not  with  the  mark  which  he  had  used ; 
and  that  B.,  whose  evidence  was  directed  to  a 
comparison  between  L.'s  mark  and  the  mark 
which  B.  had  used,  which  was  much  more  like 
L.'s  mark  than  B.'s  registered  mark  was,  had  not 
made  out  that  the  new  mark  was  calculated  to 
deceive.  Lyndon's  Trade-mark,  In  re,  32  Ch.  D. 
109  ;  56  L.  J.,  Ch.  456  ;  54  L.  T.  405  ;  34  W.  R. 
403 — C.  A.  Op.  Lambert's  Trade-mark,  In  re, 
post,  col.  1848. 

-  Under  Act  of  1875.]— The  prohibition  of  s.  6 
of  the  Trade  Marks  Registration  Act,  1875, 
against  registering,  in  connexion  with  a  trade- 
mark, words  the  exclusive  use  of  which  would 
not,  "by  reason  of  their  being  calculated  to 
deceive,  oi  otherwise,  be  deemed  entitled  to 
protection  in  a  court  of  equity,"  refers  to  decep- 
tLveness  inherent  in  the  words  themselves,  and 
not  to  deceptiveness  arising  from  similarity  to 
words  comprised  in  other  trade-marks.  A  device 
having  been  registered  together  with  the  word 
"Yalvoline"  as  a  trade-mark  for  lubricating 
oil : — Held,  that  a  different  firm  might  register 
for  the  same  article  the  word  "  Valvoleum"  in 
-combination  with  a  different  device.  Horsburgh's 
Application,  In  re,  supra. 

The  plaintiffs,  who  were  manufacturers  and 
Tendon  of  condensed  milk  and  other  similar 
articles  in  1876  registered,  in  respect  of  their 
goods,  a  trade-mark,  the  distinctive  feature  of 
which  was  the  representation  of  a  milk-maid. 
Previous  to  this  their  goods  had  become  known 
and  were  ordered  by  the  public  under  the  de- 
scription of  "  MUk  Maid "  or  "  Dairy  Maid " 
brand,  and  in  1884  they  registered  the  same 
mark  in  conjunction  with  the  words  "Milk 
Maid  Brand."  In  1882  the  defendant,  who 
carried  on    a    similar    business,   registered    a 


mark  which,  though  not  altogether  like  the 
plaintiffs  mark,  consisted  of  a  drawing  of  a 
dairy-maid  or  milk-maid  in  conjunction  with 
the  words  "  Dairy  Maid,1'  the  registration  being 
in  respect  of  a  class  of  goods  which  covered 
those  sold  by  the  plaintiffs.  He  afterwards 
used  this  mark  in  the  sale  of  condensed  milk 
in  tins  like  those  of  the  plaintiffs : — Held, 
that  the  plaintiffs  were  entitled  to  an  injunc- 
tion restraining  the  defendant  from  infringing 
their  mark,  and  also  to  have  the  register  recti- 
fied by  limiting  the  defendant's  mark  to  goods 
other  than  those  in  respect  of  which  the  plain- 
tiffs mark  was  registered.  Anglo- Swiss  Con- 
densed Milk  Company  v.  Metcalf,  31  Ch.  D. 
454  ;  55  L.  J.,  Ch.  463  ;  34  W.  R.  345— Kay,  J, 
See  Jones's  Trade-mark,  In  re,  ante,  col.  1835. 

Fraudulent  User  of  Foreign  Trade  Hark.] — 
See  Heat  oris  Trade-mark,  In  re,  ante,  col.  1838. 


v.   Three-mark  Rule. 

Common  to  the  Trade.] — A  mark  which  had 
been  registered  as  a  trade-mark,  is  at  the  time  of 
registration  "common  to  the  trade"  when 
similar  (though  not  in  each  case  identical) 
marks  are  then  in  use  by  more  than  three  persons 
engaged  in  the  same  trade,  although  in  some  of 
the  cases  the  mark  is  not  actually  placed  on  the 
goods,  but  is  only  used  on  billheads,  trade  circu- 
lars, advertisements,  or  show-cards.  Wragg's 
Trade-mark,  In  re,  29  Ch.  D.  551  ;  54  L.  J.,  Ch. 
391 ;  52  L.  T.  467— Pearson,  J. 

When  a  trade-mark  has  been  used  by  more  than 
three  persons  engaged  in  the  same  trade,  it  is 
common  to  the  trade,  and  cannot  be  registered 
by  any  one.  Hyde  $  Co.'s  Trade-mark,  In  re, 
7  Ch.  D.  724  ;  54  L.  J.,  Ch.  895,  n. ;  38  L.  T.  777 
— Jessel,  M.R. 

When  a  trade-mark  has  been  used  by  more 
than  three  different  persons  in  the  same  trade,  it 
is  not  distinctive,  but  common  to  the  trade,  and 
cannot  be  registered  by  any  of  them.  Wal kden's 
Aerated  Waters  Company's  Application,  In  re, 
infra. 

Old  Mark.] — When  a  trade-mark  has  been 
used  by  not  more  than  three  different  persons  in 
the  same  trade  as  an  old-mark — that  is,  before 
the  13th  of  August,  1875 — each  may  register  it, 
Walkden  Aerated  Waters  Company's  Applica- 
tion, In  re,  54  L.  J.,  Ch.  394,  n.— -Jessel,  M.R. 

When  it  has  been  used  by  one  or  two  persons 
as  an  old  mark,  it  can  only  be  registered  by 
another  person  as  a  new  mark  if  the  consent  of 
the  prior  owner  or  owners  is  obtained.    lb. 

Resemblance.] — Semble,  that  marks  which  so 
closely  resemble  one  another  that  the  use  of  the 
one  might  be  restrained  in  an  action  by  the 
owner  of  the  other,  will  be  treated  as  identical 
for  the  purposes  of  the  above  rules.    lb. 

Foreign  User.]  —  In  1844  the  predecessors 
in  business  of  L.  &  K.  invented  a  trade-mark  and 
used  it  on  all  the  articles  manufactured  by  them. 
L.  &  E.  registered  this  in  1880.  M.  now  applied 
for  the  registration  of  a  trade-mark  identical 
with  that  of  L.  &  K.,  with  the  exception  that  he 
substituted  his  own  name  for  that  of  "  Murray 
and  Lanman,"  which  appeared  in  the  original 
trade-mark.  He  alleged  foreign  user  since  1869, 
and  that  he  had  registered  abroad,  and  claimed 


1847 


TRADE    AND    TRADE    MARK—  Trade  Mark*. 


1848 


to  have  his  trade-mark  registered  here  as  an  old 
mark  under  the  u  three-mark  rule :  " — Held,  that 
the  resemblance  between  the  two  trade-marks 
was  so  close  that  the  later  one  must  have  been 
copied  from  the  earlier  one  ;  that  foreign  user 
alone  could  not  entitle  the  applicant  to  registra- 
tion, or  bring  him  within  the  operation  of  the 
"  three-mark  rule  *'  as  being  contemporaneous 
user  before  the  Trade  Mark  Act,  1875.  Munch'* 
Application,  In  re,  50  L.  T.  12— Chitty.  J. 


vi.    Words  Public i  Juris. 

Hew  Article  named  by  Inventor.]— If  a  person 
who  invents  a  process  for  making  a  new  article 
invents  at  the  same  time  a  new  name  for  describ- 
ing such  article,  and  the  article  comes  to  be 
known  by  that  name  only,  he  cannot  afterwards, 
when  everybody  is  at  liberty  to  make  that 
article,  claim  a  monopoly  in  the  name ;  there* 
fore,  the  defendants  were  not,  by  using  the  name 
"  Valvoline,"  which  was  the  only  name  by  which 
the  substance  in  question  was  known,  infringing 
any  rights  of  the  plaintiffs,  or  representing  their 
goods  as  made  by  the  plaintiffs,  and  that  the 
fact  that  the  plaintiffs  had  in  consequence  of  the 
registration  enjoyed  a  practical  monopoly  of  the 
name  for  five  years  did  not,  as  the  name  had 
been  improperly  put  in  the  rigister,  give  them 
any  better  right  than  they  would  otherwise  have 
had.  Leonard  v.  Wells,  Leonard's  Trade-war  It, 
2%  re,  ante,  coL  1843. 

Varna  of  Patented  Article.] — Semble,  that  the 
name  by  which  a  patented  article  is  generally 
known,  and  which  is  therefore  descriptive  of  it, 
becomes  publici  juris  at  the  expiration  of  the 
patent,  and  cannot  properly  be  registered  as  a 
trade-mark.  Ralphs  Trade-mark,  In  re, 25  Ch. 
D.  194;  53  L.  J.,  Gh.  188  ;  49  L.  T.  504;  32 
W.  R.  168  ;  48  J.  P.  135— Pearson,  J. 

A  patentee  has  no  exclusive  right  to  the  use  of 
words  properly  descriptive  of  a  patented  article, 
after  the  patent  has  expired.  Palmer's  Trade' 
mark,  In  re,  24  Ch.  D.  604  ;  60  L.  T.  30 ;  32 
W.  R.  306— C.  A. 

o.  Practice. 

i.  Generally. 

Registration  not  completed  within  Twelve 
Months — Abandonment.  ] — An  application  for 
registration  of  a  trade-mark  was  made  in  the 
year  1879,  but  registration  was  not  effected 
until  February,  1885,  after  the  commencement 
of  the  Patents,  Designs,  and  Trade  Marks  Act, 
1883.  S.  63  of  that  act  provides  that  "  where 
the  registration  of  a  trade-mark  has  not  been 
and  shall  not  be  completed  within  twelve  months 
from  the  date  of  the  application,  by  reason  of 
default  on  the  part  of  the  applicant,  the  applica- 
tion shall  be  deemed  to  be  abandoned  ;  and 
8.  113  provides  that  the  repeal  of  previous  en- 
actments therein  contained  shall  not  affect  any 
application  pending  : — Held,  that  the  effect  of 
8.  63  and  8.  113  read  together  was  that  such 
pending  applications  for  registration  as  were 
not  completed  by  registration  within  the  period 
of  twelve  months  prescribed  by  s.  63  came 
within  the  operation  of  the  last-mentioned 
section,  that  the  registrar  of  trade-marks  was 
therefore  bound  to  treat  the  application  as 
abandoned,  and  that  the  mark  was  improperly 


registered.     HaytcanTs  Trade-mark,  In  re,  54 
L.  J.,  Ch.  1003  ;  63  L.  T.  487— Kay,  J. 

Section  63  of  the  Trade  Marks  Act  of  1883  is 
retrospective  in  its  operation.    S.,  a  foreigner, 
applied   in   1876,   through  an   English  trade- 
mark   society,    for    registration   of    a  trade- 
mark.   The  Cutlers'  Company  gave  notice  of 
a  similar  mark  which  had  been  assigned  by 
them,  and  the  registrar  thereupon  wrote  to  8..  at 
the  society's  address,  to  say  that  he  could  not 
proceed    with    the    application   until   8.  had 
obtained  the  leave  of  the  court    This  letter  was 
never  communicated  to  S.  by  the  society,  who 
proceeded  no  further  with  the  application ;  bat 
8.  having  seen  the  advertisement  of  his  applica- 
tion in  the  "  Trade  Marks  Journal,"  believed  that 
his  mark  had  been  registered,  and  N.,  an  agent 
of  his,  sold  goods  in  England  marked  with  his 
mark.    In  the  year  1877  the  plaintiffs  registered 
a  mark  resembling  the  Cutlers'  mark,  and  in 
1883  brought  an  action  against  N.  to  restrain 
him  from  infringement,  and  S.,  finding  his  mark 
was  not  on  the  register,  then  made  a  fresh  appli- 
cation for  registration  : — Held,  that  S.  was  "  in 
default,"  and  that  his  original  application  most 
be  deemed  to  have  been  *' abandoned"  within  the 
meaning  of  p.  63  of  the  Act  of  1883,  and  could 
not  now  be  proceeded  with.    Jackson  v.  Najpet^ 
infra. 

Appointment  of  Agent  — Hotioea— Frttk  Appli- 
cation.]—There  is  nothing  in  the  Trade  Maris 
Act  of  1883  to  take  away  the  common  law  right 
of  an  applicant  for  registration  who  is  soi  jam 
to  appoint  an  agent  for  all  the  purposes  of  his 
application,  and  if  he  does  so  the  notices  required 
by  the  Act  may  properly  be  sent  to  him  through 
such  agent.  If  such  agent  does  not  inform  the 
applicant  of  notices  received  the  applicant  is 
entitled  to  make  a  fresh  application  for  regfetnv 
tion  notwithstanding  8.  76  of  the  Act  of  18& 
Jackson  v.  Rapper,  Schmidt's  Trade-mark,  Is  rrr 
35  Ch.  D.  162  ;  56  L.  J.,  Ch.  406  ;  55  L.  T.  836 ; 
35  W.  R.  228— Stirling,  J. 

Sheffield    Kegister— Old    Corporate   lark- 

Jurisdiotion  of  Cutlers'  Company.]— The  Cutlers' 
Company,  on  the  application  of  £.,  registered  in 
the  Sheffield  Registry  an  old  corporate  mark  of 
a  pipe  and  dart,  of  which  he  was  prima  mrie 
owner,  notwithstanding  notice  of  opposition  br 
W.,  the  owner  of  the  mark  of  a  pipe  only,  and 
without  hearing  W.  W.  appealed  to  the  comp- 
troller, who  decided  that  no  appeal  lay  to  him 
against  the  registration.  W.  then  applied  to 
the  court :— Held,  that  the  Cutlers'  Company 
acted  rightly  in  registering  L.*s  mark  without 
hearing  W.  in  opposition,  as  the  registration 
was  a  ministerial  duty  under  sub-s.  2  of  a.  81  of 
the  Patents,  Designs,  and  Trade  Marks  Act, 
1883 ;  that  there  was  no  appeal  to  the  comp- 
troller ;  and  that  L.'s  mark  was  not  so  similar 
to  that  of  W.  as  to  be  calculated  to  deceive. 
Lambert's  Trade-mark,  In  re%  37  W.  K  1M- 
North,  J. 

On  an  application  for  registration  for  metal 
goods  in  class  5  which  were  not  included  in  the 
Cutlers'  Company's  Act :— Held,  that  the  Cutlenf 
Company  were  not  entitled  to  oppose  with 
respect  to  goods  not  included  in  their  acts,  and 
that  registration  in  class  5,  limited  to  the 
specified  articles,  should  be  allowed.  fln*i*f'* 
Application,  In  re,  54  L.  J.,  Ch.  975,  a,— 
C.A. 


1849 


TRADE    AND    TRADE    HARK— Trade  Marks. 


1850 


laftual  by  Comptroller  to  register — Appeal— 
lotrd  of  Trade.] — A  person  whose  application 
to  register  a  trade-mark  has  been  refused  by  the 
comptroller  cannot  appeal  direct  to  the  court 
from  such  refusal,  as  a  person  aggrieved  by  the 
omission  of  his  name  from  the  register  under 
«.  90  of  the  Patents,  Designs,  and  Trade  Marks 
Act,  1893,  but  must  take  the  special  course  pre- 
scribed by  s.  62,  sub-s.  4.  of  appealing  to  the 
Board  of  Trade  from  the  comptroller's  decision. 
"Nwmal"  Trade-mark,  In  re,  35  Ch.  D.231  ; 
56  L.  J.,  Ch,  513  ;  56  L.  T.  246  ;  35  W.  R.  464— 
C.A. 


Opposition  to  Application — Jurisdiction  of 
Grart.]— Where,  upon  opposition  to  an  applica- 
tion to  register  a  trade-mark,  the  case  stands  for 
the  determination  of  the  court  under  p.  69, 
sab-s.  4,  of  the  Patents,  Designs,  and  Trade 
Marks  Act  of  1883,  the  court  has  juris  liction  to 
enter  into  and  determine  all  questions  arising 
npon  the  objections,  including,  in  a  case  where 
the  comptroller  has  already  registered  the  mark, 
the  question  whether  the  mark  has  been  rightly 
admitted  on  the  register.  Arbmz,  In  tv,  35 
Ch.  D.  248  ;  56  L.  J.,  Ch.  524  ;  56  L.  T.  252  ; 
33  W.  R.  527— C.  A. 

An  application  was  made  by  the  Sanitas  Com- 
pany to  register  the  word  •'  Sanitas  "as  a  trade 
inark  for  goods  in  class  3,  under  the  Patents, 
Designs  and  Trade  Marks  Act,  1883.  The 
Comptroller-General  refused  to  proceed  with  the 
registration,  on  the  ground  that  there  were 
already  on  the  register  two  trade-marks  com- 
prising the  word  "Sanitas."  On  the  matter 
being  referred  to  the  court,  in  addition  to  the 
objection  taken  by  the  Comptroller-General,  two 
further  objections  were  raised,  and  it  was  con- 
tended that  no  objections  ought  to  be  raised 
that  had  not  been  taken  by  the  comptroller  : — 
Held,  that  any  objection  could  be  entertained 
by  the  court,  and  that  the  refusal  to  register, 
tosed  on  the  previously  registered  trade-marks, 
*as  perfectly  right.  "  Sanita*"  Trade-mark, 
I*  re,  58  L.  T.  166—  Kay,  J. 

s  Daty  of  Comptroller.]— The  comptroller  is 
justified  in  refusing  to  register  a  label  so  nearly 
resembling  another  label  already  on  the  register 
as  to  be  calculated  to  deceive,  until  the  opinion 
of  the  court  should  have  been  obtained  autho- 
rising him  to  do  so.  Price'*  Patent  Candle 
Company,  In  re,  27  Ch.  D.  681 ;  54  L.  J.,  Ch.  210  ; 
-51  L.  T.  658 — Pearson,  J.  See  aUo  Sp*cr,  In 
re,  ante,  coL  1844. 

Coste  of  Appeal  to  Court]— The  costs  of  a 
■successful  appeal  to  the  court  from  a  refusal  by 
the  Comptroller-General  to  register  a  trade-mark 
most  be  paid  by  the  appellant.  '■  Alpine  "  Trade- 
mark, In  re,  29  Ch.  D.  877  ;  64  L.  J.,  Ch.  727  ; 
-53  L.  T.  79  ;  33  W.  R.  725— Chitty,  J. 

Jurisdiction  to  Order  Comptroller  to  pay 
^••te.]  —  Where  the  Comptroller- General  of 
Patents  unsuccessfully  opposes  an  application 
for  registration,  the  court  has  no  jurisdiction  to 
■order  him  to  pay  the  costs  of  the  applicant,  but 
may  refuse  to  give  him  anv  costs.  Leaf*  Trade- 
mark, In  re,  33  Ch.  D.  477  ;  55  L.  J.,  Ch.  740  ; 
*5  L.  T.  254  ;  35  W.  R.  99— V.-C.  B. 


ii.  Rectification  of  Register. 


Application  within  what  Time—] 
for  Five  Tears.] — The  right  to  the  exclusive  use 
of  a  trade-mark,  after  the  expiration  of  five 
years  from  the  date  of  registration,  given  by 
the  Trade  Marks  Act,  1883,  s.  76,  is  subject  to 
and  controlled  by  s.  90,  and  therefore  any  person 
who  considers  himself  aggrieved  by  any  entry 
made  in  the  register  without  sufficient  cause  is 
not  precluded  by  the  expiration  of  five  years 
from  the  date  of  such  registration  from  showing 
that  the  mark  ought  not  to  have  been  registered. 
Lloyd'*  Trade -mark,  In  re,  Lloyd  v.  Bottomley, 
27  Ch.  D.  64G  ;  54  L.  J.,  Ch.  66  ;  51  L.  T.  898— 
Chitty,  J. 

Sections  3  and  4  of  the  Trade-marks  Registra- 
tion Act,  1875,  do  not  confer  on  the  first  or 
subsequent  registered  proprietor  of  a  trade-mark 
who  has  been  on  the  register  for  five  years  the 
absolute  right  to  the  exclusive  use  of  his  trade* 
mark  as  against  all  the  world  ;  the  intention 
of  the  sections  is  merely  to  afford  him  assistance 
in  bringing  an  action  for  infringement  by  dis- 
pensing with  the  necessity  of  his  adducing 
evidence  in  that  action  of  exclusive  user ;  and 
the  sections  are  no  bar  to  an  application  under 
s.  5  to  rectify  the  register  on  the  ground  that  the 
trade-mark  is  improperly  on  the  register  or 
should  be  restricted  to  certain  goods.  Edward* 
v.  Denni*%  Edward*'  Trade-mark,  In  re,  30  Ch. 
D.  454  ;  55  L.  J.,  Ch.  125  ;  54  L.  T.  112— C.  A. 
Reversing  1  C.  &  E.  428— A.  L.  Smith,  J. 

The  registration  of  a  mark  as  a  trade-mark 
and  the  lapse  of  five  years  do  not,  under  s.  76 
of  the  Trade  Marks  Act,  1883,  confer  on  the 
person  who  has  made  the  rcgistrati<  >n  an  inde- 
feasible title  to  the  use  of  the  mark  as  a  trade- 
mark if,  by  reason  of  its  being  at  the  time  of 
registration  in  common  use  in  the  trade,  it  ought 
not  to  have  been  registered.  The  lapse  of  five 
years  cannot  make  good  a  registration  which 
was  in  its  inception  invalid.  A  trade- mark 
which  was  originally  improperly  registered  ought 
even  after  the  lapse  of  five  years,  to  be  removed 
from  the  register,  because  the  registration  might 
unable  the  person  who  has  made  it  to  commit  a 
fraud.  Wragg**  Trade-mark,  In  re,  29  Ch.  D. 
551  ;  54  L.  J.,  Ch.  391  ;  62  L.  T.  467  —Pearson,  J 

Onus  of  Proof]— Where  a  person  seeks  to 
remove  a  trade-mark  from  the  register,  the  onus 
is  upon  him  to  shew  that  it  ought  to  D3  removed, 
but  though  his  own  evidence  may  be  insufficient 
for  the  purpose,  the  onus  is  discharged  if  it 
appears  from  the  evidence  of  the  owner  of  the 
mark  that  it  ought  not  to  be  on  the  register. 
Leonard  v.  Well*,  Leonard?*  Trade-mark,  In  re, 
26  Ch.  D.  288  ;  63  L.  J.,  Ch.  603  ;  61  L.  T.  35— 
C.  A. 

Common  Hark— Costs.] — A  person  who  registers 
a  trade-mark  does  so  at  his  own  risk,  and  if  he 
registers  one  which  is  common  to  the  trade  it 
will  be  removed  from  the  register  on  the  applica- 
tion of  the  parties  aggrieved,  and  he  will  have 
to  pay  the  costs  of  the  application.  It  make* 
no  difference  that  he  was  the  person  who  wap 
the  first  to  adopt  the  trade-mark  if  it  had 
become  common  at  the  date  of  registration. 
Hyde  and  Company'*  Trade-mark,  In  re,  7  Ch. 
D.  724 ;  52  L.  J.,  Ch.  395,  n.;  88  L.  T.  777— 
J  esse  1,  M.R. 


1851 


TRADE    AND    TRADE    MARK— Trade  Mark*. 


1852 


Overlooking  Advertisement.]  —  There  is  no 
obligation  on  persons  interested  to  see  an  adver- 
tisement in  the  Trade-mark*  Journal  of  an 
application  for  registration,  and  the  fact  that 
they  hare  not  seen  Bach  an  advertisement  or 
opposed  the  application  is  no  bar  to  their  apply- 
ing to  have  the  mark  removed  from  the  register 
after  the  registration  is  complete.    lb. 

Calculated  to  Deceive.]— A  firm  of  distillers 
registered,  as  a  trade-mark  for  their  cherry 
brandy,  a  hunting-scene  in  connexion  with  the 
word  "Sportsman."  Their  cherry  brandy  con- 
sequently became  generally  known  as  "  The 
Sportsman's"  and  also  as  "Huntsman's"  and 
*'  Hunter's  "  cherry  brandy.  Some  years  after- 
wards another  firm  of  ..distillers  registered  a 
trade-mark  consisting  of  a  hunting  scene,  and 
the  words  "  Huntsman's  cherry  brandy. "  There 
was,  however,  no  resemblance  between  the  two 
hunting  scenes : — Held,  that,  notwithstanding 
the  dissimilarity  in  the  designs,  the  latter  trade- 
mark was  got  up  for  the  purpose  of  passing  off 
cherry  brandy  as  that  manufactured  by  the  pro- 

{>rietors  of  the  first  trade-mark,  and  was  caten- 
ated to  deceive  ;  and  that  the  register  must  be 
rectified  by  striking  out  the  latter  trade-mark. 
Barker's  Trade -mark,  In  re,  63  L.  T.  23 — 
Kay,  J.  See  also  Blair  v.  Stock,  ante,  col. 
1840. 

Where  a  trade-mark  contained  the  words 
"sole  maker"  immediately  preceding  words 
descriptive  of  an  article,  and  it  was  admitted 
that  the  persons  registering  the  mark  were  not 
the  sole  makers  of  that  article,  the  court  ordered 
the  mark  to  be  expunged  from  the  register  as 
being  calculated  to  deceive.  Hay-ward's  Trade- 
mark, In  re,  54  L.  J.,  Ch.  1003 ;  53  L.  T.  487— 
Kay,  J. 

Y.  &  Co.  registered  a  trade-mark  for  fermented 
liquors,  consisting  of  three  triangles,  two  placed 
on  a  third,  the  space  in  the  centre  being  blank. 
J.  B.  subsequently  registered  another  mark  for 
bottled  beer,  consisting  of  three  triangles  inter- 
laced, the  space  in  the  centre  containing  a  stag's 
head  : — Held,  on  the  authority  of  Worthington's 
Trade-mark,  In  re  (14  Ch.  D.  8),  that,  having 
regard  to  the  use  which  the  mark  subsequently 
registered  might  be  put  to  by  being  coloured,  it 
was  calculated  to  deceive,  and  that  so  much  of 
the  mark  as  consisted  of  the  triangular  arrange- 
ment must  be  expunged  from  the  register. 
Biegel's  Trade -mark,  In  re,  67  L.  T.  247— 
Chitty,  J.     Cp.  cases,  ante,  coL  1843  et  seq. 

Limiting  Mark  to  Particular  Goods.]—  See 
Anglo-Swiss  Milk  Company  v.  Metcalf,  ante, 
col.  1846. 

Extension  of  Time.] — Where  an  application 
for  registration  of  a  trade-mark  was  abandoned 
within  the  meaning  of  s.  63  of  the  Trade  Marks 
Act,  1883,  the  court,  in  exercise  of  the  discretion 
given  by  s.  90  of  the  act,  instead  of  directing  the 
mark  to  be  expunged,  ordered  that  the  register 
should  be  rectified  by  inserting  an  entry  direct- 
ing that  the  five  years  mentioned  in  s.  76  should 
begin  to  run  from  the  date  of  such  entry.  Hay- 
ward's  Trade-mark,  In  re,  supra. 

Clerical  Errors— Essential  Particulars.] — A 
trade-mark  for  sewing-cotton,  as  registered,  con- 
sisted of  a  lion  surrounded  with  the  inscription 


in  Bus8ian,  "  Ermen  and  Root.  Manchester." 
The  initial  aE  "  was,  however,*  in  the  English 
and  not  in  the  Russian  character.  The  owners 
of  the  mark  had  for  two  years  used  it  in  the 
Russian  trade,  with  the  alteration  of  the  English 
E  to  the  Russian  E,  and  with  the  insertion  of 
the  word  "of"  in  Russian  before  the  word 
"  Manchester."  The  comptroller  having  declined 
to  alter  the  register  under  s.  91,  application  to 
the  court  was  made  by  the  owners,  under  s.  92 
of  the  Patents,  &c,  Act,  1883,  for  leave  to  add  to 
and  alter  the  registered  mark  in  the  manner  in 
which  it  had  been  used,  and  the  court  acceded 
to  the  application  on  the  ground  that  the  addi- 
tion and  alteration  were  non-essential  particulars. 
Ermen  $  Roby's  Trade-mark,  In  re,  56  L.  J., 
Ch.  177  ;  56  L.  T.  230— Chitty,  J. 

Substitution  of  one  Kame  for  another.]— R.  fc 
Co.,  wine  and  spirit  merchants  at  Cognac,  for 
some  years  exported  to  M.  &  Co.,  wine  and  spirit 
merchants  at  Madras,  brandy,  which  was  sold  by 
M.  &  Co.  in  India,  with  a  label  affixed,  bearing  a 
trade-mark  of  a  red  Maltese  cross,  and  the  name 
M.  &  Co.    This  trade-mark  was  first  pat  on  the 
bottles  in  1875  by  R.  &  Co.  at  the  instance  of 
M.  &  Co.,  but  the  court  found  that  so  much  of 
the  mark  as  consisted  of  a  red  Maltese  cross  had 
been  previously  used  by  R.  &  Co.,  and  that  the 
intention  of  R.  &  Co.  was  that  this  mark  should 
be  exclusively  used  by  M.  &  Co.  so  long  only  as 
they  took  their  brandies  from  R.  &  Co.,  after 
which  it  should  be  the  mark  of  R.  &  Co.    In 
April,  1879,  M.  &  Co,  wrote  to  R.  &  Co.,  request- 
ing them  to  register  the  mark  in  England  for 
M.  &   Co.,  but  in  September,  1879,  R.  &  Co. 
registered  the  mark  of  the  red  Maltese  cross  in 
their  own  names.    M.  &  Co.  only  discovered  this 
in  1882,  after  the  business  relations  between  the 
two  firms  had  come  to  an  end,  when  they  applied 
for  rectification  of  the  register  by  striking  oat 
the  names  of  R.  &  Co.  and  substituting  the  names 
of  M.  &  Co.  as  owners  of  the  trade-mark,  bat 
the  court  refused  to  strike   out  the  names  of 
R.  &  Co.  on  the  ground  that  they  had  only 
registered  their  old  mark,  and  not  the  mark  used 
by  M.  &  Co. : — Held,  also,  that  even  if  the  names 
of  R.  &  Co.  had  been  expunged  from  the- register, 
the  court  would  not.  on  their  application,  hat* 
inserted  the  names  of  M.  &  Co.,  inasmuch  as  the 
requirements  of  the  Trade  Marks  Registration 
Act,  1875,  and  the  rules  thereunder  as  to  adver* 
tisements,  &c,  in  case  of  an  application  to  re- 
gister a  trade-mark,  had  not  been  complied  with. 
Riviere's  Trade-mark,  In  re,  55  L.  J.,  Ch.  545 ; 
53  L.  T.  237— C.  A.     See  aha  Welleome's  T/ad* 
mark,  In  re,  ante,  col.  1835. 

"Person  aggrieved  "—Trade  Hark  need  by 
Foreign  Trader.]— R.  &  Co.  registered  a  trade 
mark  for  brandy  in  England.  M.  &  Co.,  who 
carried  on  business  at  Madras,  but  neither  carried 
it  on  nor  intended  to  carry  it  on  in  England, 
applied  to .  rectify  the  register  by  striking  oat 
the  name  of  R.  i  Co.  and  substituting  that  of 
M.  &  Co.  as  owners  of  the  trade-mark,  alleging 
that  they,  M.  &  Co.,  were  the  owners  of  the  trade- 
mark, and  had  instructed  R.  &  Co.  to  register  it 
in  the  name  of  M.  k  Co.,  instead  of  which  R  ft 
Co.  had  registered  it  in  their  own  name :— Held, 
that  assuming  M.  &  Co.  to  have  no  right  to 
register  the  trade-mark  in  England,  it  did  not 
follow  as  a  necessary  consequence  that  they  could 
not  be  aggrieved  by  its  being  registered  here  in 


1853 


TRADE    AND    TRADE    MARK—  Trade  Marks. 


1854 


the  name  of  another  person,  and  that  the  case 
must  be  dealt  with  on  the  merits.  Riviere' sTrade- 
mark,  In  re,  26  Ch.  D.  48 ;  53  L.  J.,  Ch.  578  ; 
50  L.  T.  763  ;  32  W.  R.  390—0.  A. 

—  Proprietor  not  "  Engaged  in  any  Bui- 
mm,  *«."]-— The  assignee  of  a  patent  for  a 
washing-  machine  applied  to  it  the  name  of  "  The 
Home  Washer, "  and  registered  the  name  as  his 
trade-mark  in  respect  of  it.  He  did  not  manu- 
facture'the  machines,  or  any  other  goods  in  the 
sune  class,  bat  granted  an  exclusive  right  to  a 
manufacturing  firm  who  paid  him  royalties. 
They  invented  and  patented  various  improve- 
ments in  the  machine,  and  after  the  expiration 
of  the  patent  (six  years  from  the  registration  of 
the  trade-mark)  they  continued  to  manufacture 
the  improved  machines,  and  to  describe  them  by 
the  old  name,  but  paid  no  royalties,  and  •  the 
registered  proprietor  had  not,  after  a  year  and 
nine  months  from  the  expiration,  begun  to 
manufacture,  though  he  had  been  in  negotiation 
with  manufacturers  to  do  so  in  con  junction  with 
him  :—Held.  that  the  .former  licensees  (against 
whom  the  registered  proprietor  was  moving  for 
an  injunction)  were  "  persons  aggrieved  "  within 
r.  33,  and  that  the  mark  must  be  removed  from 
the  register  on  the  ground  that,  notwithstanding 
the  negotiations,  the  registered  proprietor  was 
not  "engaged  in  any  business  concerned  in  the 
goods  within  the  same  class  as  the  goods  in 
respect  to  which  the  mark  was  registered.'1 
Ralph:*  TradetnarU,  In  re,  25  Ch.  D.  194  ;  53 
L.  J.t  Ch.  188  ;  49  L.  T.  504  ;  32  W.  R.  168  ;  48 
J.  P.  133— Pearson,  J. 

Semble,  that  a  patentee  is  "engaged  in  any 
business,  &c,"  so  long  as  he  receives  royalties 
under  his  patent,  even  though  he  does  not  himself 
manufacture,    lb. 

Ion-user — Abandonment] — In  order todeprive 
a  manufacturer  of  his  right  to  a  trade-mark,  the 
Me  of  which  has  been  practically  given  up  for  a 
period  of  five  years,  mere  discontinuance  of  user 
for  lack  of  demand,  though  coupled  with  non- 
registration, and  non-assertion  of  any  right,  is 
not  enough  ;  there  must  be  evidence  of  distinct 
intention  to  abandon.  In  1874,  A.,  a  German 
*oap  manufacturer,  adopted  a  trade-mark  for  a 
particular  kind  of  soap,  which  for  about  two  years 
was  manufactured  and  sent  to  this  country  in 
large  quantities  for  exportation  to  Australia,  but 
from  1876  until  1882  the  manufacture  and  sale 
of  soap  thus  marked  fell  off,  until  it  practically 
ceased,  and  the  existence  of  the  particular  mark 
was  in  May,  1882,  forgotten  by  A.  In  1880,  B., 
a  manufacturer  of  soap  in  the  same  part  of  Ger- 
many, adopted,  in  complete  ignorance  of  A.'s 
mark,  a  precisely  similar  mark  for  soap  sent  to 
this  country  for  exportation  to  Australia,  and  in 
August,  1880,  he  registered  his  mark  under  the 
Trade  Marks  Acts  iu  this  country.  In  July,  1882, 
after  the  commencement  of  proceedings  by  B.  to 
restrain  an  infringement  of  his  registered  trade- 
mark by  A.,  A.  applied  for  registration  of  bis 
mark  of  1874.  Upon  application  (1)  by  B. 
to  restrain  this  infringement  of  his  trade-mark  ; 

(2)  by  A.  to  have  his  trade-mark  registered  ; 

(3)  by  A.  to  have  R.'s  trade-mark  removed  from 
the  register  : — Held  (1),  th«t  mere  non-user  by 
A.  of  his  mark  between  1876  and  1882,  though 
coupled  with  non- registration,  did  not,  having 
regard  to  the  fact  that  he  had  not  ceased  to  cany 
on  his  business,  and  had  not  broken  up  the  mould, 


and  that  a  number  indicating  soap  thus  marked 
was  retained  on  his  price  lists,  did  not  amount  to» 
an  abandonment  by  A.  of  the  mark,  so  as  to  give 
B.  any  exclusive  right  to  his  registered  mark.. 
(2)  That  the  existence  upon  the  register  of  B.'a 
mark  did  not  prevent  the  court  from  granting 
leave  for  the  registration  of  A.'s  mark.  (3)  That 
previous  bona  fide  registration  of  B.'s  mark  in 
ignorance  of  any  claim  by  A.,  followed  by  large 
dealings  under  that  mark,  prevented  A.,  after  the 
lapse  of  two  years,  from  getting  B.'s  mark  ex-, 
punged  from  the  register.  Mouson  v.  Boehm.  2d 
Ch.  D.  398  ;  53  L.  J.,  Ch.  932  ;  50  L.  T.  784  ;  32 
W.  R.  012— Chitty,  J. 


iii.  Common  Element* — Disclaimer, 

Practice  as  to.]— H.  applied  on  the  28th  of 
December,  1883,  to  register  as  a  trade-mark  a 
label  surrounded  by  a  pattern  of  ornamental  ■ 
design,  and  containing  in  the  centre  a  rect- 
angular black  space,  bearing  the  words  "  Hud- 
son's Carbolic  Acid  Soap  Powder,"  in  white- 
letters.  On  the  outside  of  the  rectangular  space 
were  other  words  descriptive  of  the  purposes, 
and  advantages  to  be  derived  from  the  use  of' 
the  soap  powder.  This  label  had  not  been  used 
before  the  application  : — Held,  that  the  appli- 
cation must  be  treated  as  being  made  under  the 
act  of  1875,  and  the  court  could  not  enforce  aa 
a  term  of  registration,  disclaimer  of  the  words. 
"Carbolic  Acid  Soap  Powder,"  which  were 
common  to  the  trade  and  merely  descriptive — 
that  act  having  no  provision  similar  to  that  con- 
tained in  s.  74  of  the  act  of  1883 ;  that  the  label 
was  a  distinctive  label  and  capable  of  registra- 
tion as  a  trade-mark  under  the  act  of  1875,  but 
that  only  the  label  as  a  whole  could  be  claimed 
as  a  trade-mark,  and  that  no  right  could  be 
acquired  by  such  registration  to  the  exclusive  use 
of  those  common  words,  however  long  might  be 
the  user  of  them ;  that,  whether  under  the  act  of 
1875  or  of  1883,  the  fact  of  there  having  been  no- 
previous  user  did  not  prevent  the  registration — 
the  act  of  1875  having  effected  a  change  in  the 
law  previously  existing  by  making  the  mere  act 
of  registration,  as  regards  any  of  the  particulars 
specified  in  s.  10,  equivalent  to  the  public,  user* 
which  before  that  act  was  the  essence  of  a 
trade-mark.  Hudson's  Trade-mark*,  In  re,  32 
Ch.  D.  311 ;  55  L.  J.,  Ch.  531  ;  55  L.  T.  228  ;  34 
W.  R.  616  -C.  A. 

When  an  application  is  made  for  the  registra- 
tion of  a  trade-mark  composed  in  part  of  dis- 
tinctive elements  and  in  part  of  elements 
common  to  the  trade,  the  proper  form  of  regis- 
tration is  to  register  the  entire  mark,  and  to  add 
a  note  disclaiming  the  exclusive  right  to  the 
common  elements.  KuhiCi  Trade-marks,  In  re, 
53  L.  J.,  Ch.  238,  n.— Jessel,  M.R. 

Objections  having  been  raised  by  the  owner  of 
a  registered  trade-mark  to  the  proposed  registra- 
tion of  another  trade-mark  for  use  in  connexion 
with  goods  included  in  classes  for  which  the 
first  mark  was  used,  but  no  formal  opposition 
having  been  lodged  to  the  application  for  regis-! 
t ration,  an  agreement  was  entered  into  between 
the  registered  owner  and  the  applicant  that  no 
formal  opposition  should  be  lodged ;  that  the 
applicant  should  use  his  mark  i&  connexion 
only  with  goods  actually  exported  to  certain 
specified  countries ;  and  that  he  would,  in  con*, 
nexion  with  the  registration,  cause  a  note  of 


1855 


TRADE    AND    TRADE    MARK— Trade  Marks. 


1856 


this  restriction  on  the  use  of  his  trade-mark  to 
foe  entered  on  the  register.  Upon  an  ex  parte 
application  by  the  applicant,  in  pursuance  of 
this  agreement,  the  court  directed  the  comp- 
troller of  trade-marks  to  enter  such  a  note  on 
the  register.  Keeps  Trade-mark,  In  re.  26  Ch. 
D.  187  ;  54  L.  J.,  Ch.  637  ;  50  L.  T.  453 ;  32 
W.  R.  427— Pearson,  J. 

Where  a  trade-mark,  not  otherwise  objection- 
able, contained  words  which  were  admitted  to 
ta  common  in  the  trade,  the  court  directed  the 
register  to  be  rectified  by  entering  thereon  a 
■disclaimer  of  the  intention  to  claim  any  right  of 
exclusive  use  of  such  words.  Hay  ward's  Trade- 
mark, In  re,  54  L.  J.,  Ch.  1003  ;  *53  L.  T.  487— 
Kay,  J. 

Two  manufacturers  of  whiskey  applied  for 
registration  of  a  trade-mark  consisting  of 
{amongst  other  things)  the  words  "  Cruiskeen 
Lawn,"  and  entered  into  an  agreement  that  they 
■should  respectively  be  at  liberty  to  register  their 
trade-marks,  but  that  the  user  should  be  re- 
stricted, and  that  a  note  of  the  restriction  should 
he  entered  on  the  register,  with  liberty  for  either 
party  to  apply  as  a  person  aggrieved  for  recti- 
fication of  the  register.  The  marks  were  re- 
gistered without  a  note  of  the  restriction.  On 
The  application  of  both  parties  an  order  was 
made  for  the  rectification  of  the  register  by  add- 
ing a  note  that  the  user  was  limited  by  the 
agreement.  Notice  of  the  rectification  to  be 
?riven  to  the  comptroller.  Mitchell's  Trade- 
mark, In  re,  28  Ch.  D.  666  ;  54  L.  J.,  Ch.  216  ; 
61  L.  T.  900;  33  W.  R.  148-Chitty,  J. 

The  entry  on  the  register  of  twosimilar  trade- 
marks in  the  same  class,  of  a  note  that  the  use 
of  the  marks  registered  is  restricted  by  an  agree- 
fiient  between  the  respective  owners  (the  effect 
of  which  is  not  stated)  is  irregular,  and  contrary 
to  the  provisions  of  the  Patents,  Designs,  and 
Trade-marks  Act,  1883;  but  a  note  of  the  mutual 
undertakings  not  to  use  the  marks  except  in  a 
certain  mariner  and  within  specified  districts 
may  be  entered  on  the  register.  Mitchell's 
Trade-mark,  In  re,  28  Ch.  D.  666 ;  54  L.  J..  Ch. 
409  ;  52  L.  T.  575  ;  33  W.  R.  480— Chitty,  J. 

Costs.] — Where  the  registration  of  certain 
trade-marks,  composed  in  part  of  elements  com- 
mon to  the  trade,  was  ordered  to  be  rectified, 
sand  the  registered  proprietor  did  not  consent  to 
the  rectification  but  appeared  by  counsel  on  the 
hearing  of  the  motion  : — Held,  that  the  re- 
spondents must  pay  the  costs  of  the  application, 
notwithstanding  that  no  previous  notice  of  it  had 
been  given  them,  and  that  they  had  sent  notice 
to  all  the  trade  when  their  registration  was 
effected,  after  which  a  year  and  a  half  had 
passed  before  the  motion  to  rectify  was  made. 
Marrows,  In  re  (5  Ch.  D.  353)  commented  on. 
Kn.hn's  Trade-marks,  In  re,  53  L.  J.,  Ch.  238,  n. 
—  Jessel,  M.R. 

But,  semble,  that  if  it  had  been  proved  that 
the  common  elements  in  the  marks  bad  become 
-common  solely  by  the  former  common  piracy  of 
th  i  applicants  for  rectification,  the  respondents 
be  ng  foreigners,  the  latter  would  not  have  been 
m  ide  to  pay  the  costs.    lb. 


2.    INFRINGEMENT. 

Non-registration  —  Label  —  Injunction.]— In 
-f-uly,  1885,  M.,  of  Dizy,  in  France,  commenced 


the  consignment  to  the  plaintiff  in  London  of 
champagne  under  the  label  "  Le  Court  et  Ck, 
Reims,'1  which  had  then  recently  been  registered 
in  France  as  his  trade-mark,  and  to  which  in 
December,  1886,  his  right  was  established  in 
proceedings  against  X.  before  the  French  tri- 
bunal. Further  consignments  were  made  to  the 
plaintiff  down  to  July,  1886,  and  advertised  and 
sold  by  him  as  Le  Court  et  Cic's  champagne, 
In  March,  1886,  the  defendant,  trading  under 
the  name  of  Short  &.  Co.,  began  to  sell  (chiefly  at 
a  wine  bar  across  the  counter)  champagne  which 
was  sent  to  him  from  France  by  X.  as  Le  Court 
et  Cie.'s  champagne ;  and  it  appeared  that  in 
1882  he  had  proposed  to  register  in  France  a 
label  with  the  name  Le  Court  et  Cie.  as  corre- 
sponding to  his  own  trade-name  of  Short  it  Co, 
but  from  difficulties  in  obtaining  registration 
abandoned  the  idea.  Upon  motion  by  the  plain- 
tiff to  restrain  the  use  of  the  name  and  brand  by 
the  defendant : — Held,  that  the  plaintiff  wat 
not  entitled  to  an  injunction  against  the  defen- 
dant ;  because,  the  label  being  capable  of  regis- 
tration in  this  country  and  not  having  been 
registered,  the  plaintiff  was  precluded  by  s.  77 
of  the  Trade-marks  Act,  1883,  from  instituting 
proceedings  to  restrain  infringement  of  a  trade- 
mark. Good/Hlow  v.  PHnee.  35  Ch.  D.  9 ;  36 
L.  J.,  Ch.  545  ;  56  L.  T.  617 ;  3.">  W.  R.  488— 
C.  A. 

Assignment  not  Registered.] — Where  a  trade- 
mark has  been  registered,  an  assignee  of  the 
registered  proprietor  can  bring  an  action  to 
prevent  the  use  of  the  trade-mark,  without  having 
registered  the  assignment.  Ihlee  v.  Hciuham, 
31  Ch.  D.  323  ;  55  L.  J.,  Ch.  273  ;  53  L.  T.  W9  J 
34  W.  R.  269— North,  J. 

Sale  by  Manufacturer  in  Bulk— Sale  by  Eatafl 
Dealer— Right  to  use  Trade-mark.]— A  manu- 
facturer who  sells  to  a  dealer,  in  bulk,  an  article 
usually  sold  and  used  in  small  quantities,  withoat 
any  restriction  as  to  its  disposal,  must  be  taken 
to  authorise  the  dealer  to  sell  it  as  being  his 
vendor's  manufacture.  The  dealer  may  there- 
fore call  the  article  by  the  name  registered  by 
the  manufacturer  as  his  trade-mark.  Condjf  v. 
Taylvr,  56  L.  T.  891— Kekewich,  J. 

Hame  calculated  to  Deceive.]— The  plaintift 
registered  the  word  "  Sanitas  "  as  a  trade-mark, 
under  the  Patents,  Designs,  and  Trade  Marks 
Act,  1883,  for  goods  manufactured  and  sold  by 
them.  The  defendant  advertised  and  sold  under 
the  name  of  "  Condi-Sanitas  "  articles  of  a  simi- 
lar nature  to  those  manufactured  by  the  plain- 
tiffs:—Held,  that  the  word  adopted  by  the 
defendant  so  resembled  the  plaintiffs'  trade-mark 
as  to  be  calculated  to  deceive  and  mislead ;  and 
that,  therefore,  an  interlocutory  injunction  most 
be  granted  to  restrain  the  defendant  from  using 
the  word  *'  Sanitas"  in  conjunction  with  "Condi," 
or  in  any  other  way  which  would  infringe  the 
plaintiffs*  trade-mark.  Sanitas  Company  v. 
Co/tdy,  56  L.  T.  621— Kay,  J. 

Plaintiffs'  Conduct   barring   Remedy.]— Tne 

plaintiffs,  who  were  manufacturers  of  and 
dealers  in  cigars  in  England,  imported  from 
Germany  cigars  made  of  Havannah  tobacco. 
There  was  no  direct  evidence  as  to  the  place 
whore  they  were  manufactured,  but  the  court 
found  us  a  fact  that  they  were  also  mannlae- 


1857 


TRADE    AND    TRADE    MARK. 


1858 


tared  in  Germany.    Plaintiffs  sold  these  cigars 
in  England  in  boxes  on  which  was  a  label  con- 
taining their  trade-mark  (registered  under  the 
Trade  Marks  Registration  Act,  1875),  and  con- 
sisted of  the  words  "  La  Pureza,"  and  a  pictorial 
representation  of  an  Indian  woman  in  a  state  of 
aemi-nndity  holding  ap  a  bundle  of  cigars,  two 
winged  boys  each  holding  a  shield,  and  a  back- 
ground representing  a  portion  of  some  tropical 
country.    On  one  shield  was  depicted  the  arms 
of  8pain,  and  on  the  other  those  of  Havannah. 
In  the  trade-mark  as  registered  the  shields  were 
blank.    A  smaller  label  contained  what  was 
apparently  the  lithographed  signature  of  "  Ra- 
mon Romnedo."    On  each  box  were  branded 
the  words  "  La  Pureza  "  and  "  Habana."    It  was 
proved  that  "La  Pureza"  was  an  old  brand, 
long  disused,  of  Havannah  cigars,  and  that  there 
was  no  known  existing  person  of  the  name  of 
"Ramon  Romnedo."    The  court  held,  that,  it 
having  been  a  general  custom  in  the  tobacco 
trade  for  over  twenty-five  years  to  mark  cigar- 
boxes  with  the  word  "Habana,"  though   the 
cigars  had  not  been  imported  from  Havannah, 
such  a  marking  did  not  disentitle  the  owner  of  a 
trade-mark  for  cigars  from  seeking  to  prevent 
infringement ;  and  that,  the  defendants  having 
used  similar  marks  on  their  cigar-boxes,  the 
plaintiffs  were  entitled  to  an  injunction  and  an 
account: — Held,  on  appeal,  that,  as  the  trade- 
mark and  other  marks  on  the  plaintiffs'  boxes 
together  amounted  to  a  "  dressing-np "  of  the 
plaintiffs'  cigars,  and  a  misrepresentation  that 
they  were  cigars  manufactured  in  the  Havannah, 
the  action  must  be  dismissed,  but  without  costs, 
the  defendants  being  entitled  only  to  the  costs 
of  the  appeal.    Newman  v.  Pinto.  67  L.  T.  31 — 
C  A. 

In  1876  A.  registered  as  his  trade-mark  the  word 
"Eton."  which  had  been  used  since  1869,  and 
become  known  in  the  trade  as  denoting  cigarettes 
of  his  manufacture.     He  had  also  been  in  the 
habit  of  selling,  and  supplying  for  the  purposes 
of  sale,  "  Eton  "  cigarettes  in  boxes  so  labelled 
(in  conformity  with  an  alleged  custom  in  the 
trade)  as  to  imply  that  such  cigarettes  were 
manufactured  at  St.  Petersburg  by  a  Russian 
firm  :— Held,  that  A.,  by  so  acting  in  connexion 
with  the    word  "  Eton  "  as  to  suggest  to  persons 
not  in  the  trade  that  the  cigarettes  were  not  of 
his  making,  had  destroyed  the  value  of  the  word 
as  "special  and  distinctive"  within  the  Trade- 
marks Act,  1875,  8.  10,  and  accordingly  that  at 
the  time  of  registration  it  had  ceased  to  be  his 
special  and  distinctive  mark  capable  of  registra- 
tion.   And  as  five  years  on  the  register  does  not 
(on  the  authorities)  give  an  indefeasible  title  to 
a  mark  which,  from  not  properly  constituting 
a  trade-mark  within  the  meaning  of  the  act, 
ought  not  to  have  been  registered,  A.'s  action  to 
restrain  an  infringement  of  the  mark  by  B.  was 
dismissed,  and  rectification  of  the  register  by 
removing  the  mark  on  B.'s  application  allowed. 
Woofs  Trademark,  In  re,  Wood  v.  Lambert, 
32  Ch.  D.  247  ;  55  L.  J.,  Ch.  377  ;  64  L.  T.  314— 
C.  A. 

Costs— Apology  after  Writ]— On  12th  June, 
1886,  an  order  was  received  by  the  defendant 
for  certain  goods  with  labels  attached  which 
infringed  the  plaintiff's  registered  trade-mark, 
and  on  6th  July,  1886,  a  writ  was  issued  to 
restrain  the  infringement.  On  the  7th  July, 
1886,  the  defendants  offered  to  compensate  the 


plaintiff  without  the  necessity  of  legal  proceed- 
ings, and  to  destroy  the  labels  and  comply  with 
any  reasonable  request  of  the  plaintiff ;  on  16th 
July  the  plaintiff  moved  for  an  injunction : — 
Held,  that  notwithstanding  the  defendant's  offer 
the  motion  was  not  an  unnecessary  proceeding, 
and  the  defendants  must  pay  the  costs  caused  by 
what  they  had  done.  Fennessy  v.  Day,  55  L.  T. 
161— V.-C.  B. 


On  Higher  or  Lower  Scale.] — A  submis- 


sion to  a  perpetual  injunction  with  costs  by  a 
defendant  in  an  action  for  the  infringement  of 
a  trade-mark  does  not  afford  a  special  ground 
upon  which  the  court  will  direct  taxation  of  the 
costs  upon  the  higher  scale  under  the  provisions 
of  Ord.  LXV.  r.  9.  Hudson  v.  Otgerby,  50  L.  T. 
323 ;  32  W.  R.  566— Pearson,  J. 


III.    MERCHANDISE  MARKS. 

False  Trade  Description.]  —  S.,  the  original 
patentee,  without  fraud,  sold  in  packets  S.'s 
patent  refined  isinglass,  a  well-known  article, 
which  was  really  only  gelatine  : — Held,  that  he 
ought  not  to  be  convicted  under  s.  2  of  the 
Merchandise  Marks  Act,  1887,  of  a  '•  false  trade 
description  "  merely  because  the  description  was 
not  in  the  strict  sense  of  the  words  an  accurate 
indication  of  the  material  in  the  packet.  To 
constitute  the  offence  there  must  be  an  intention 
to  mislead.  Gridley  v.  Stvinborne,  52  J.  P.  791 
— D. 

A  patentee,  who,  after  the  expiration  of  his 
patent,  continues  selling  the  same  articles  under 
the  description  of  patent  articles,  and  with  the 
royal  arms  on  the  wrappers,  is  not  necessarily 
guilty  of  describing  the  goods  falsely  as  the  sub- 
ject of  an  existing  patent ;  it  is  a  question  of 
fact  for  the  jury  or  the  magistrate  to  determine. 
lb. 


IV.    DESIGNS. 

Previous  Publication  —  Samples  —  Marking 
registered  Designs.] — The  inventor  of  a  design 
for  trimmings  for  corsets  submitted  it,  before 
taking  any  steps  to  obtain  registration,  to  his 
commission  agent,  who,  in  his  turn,  showed  it 
to  certain  customers,  and  obtained  orders  to  be 
executed  at  a  future  time.  Registration  was 
effected  before  any  orders  were  executed.  The 
trimming  to  which,  the  design  was  applied  was 
sold  in  lengths  of  several  yards  wrapped  round 
with  a  paper  band,  on  which  were  printed  the 
word  "  Rd."  and  the  registration  number : — Held, 
that  the  design  had  been  published  in  the  United 
Kingdom  previously  to  registration,  and  that  the 
trimming  was  marked  in  accordance  with  the 
statutory  requirements.  Blank  v.  Footman,  39 
Ch.  D.  678 ;  57  L.  J.,  Ch.  909  ;  59  L.  T.  607 ;  36 
W.  R.  921— Kekewich,  J. 

Mew  or  Original  Design.] — A  design  is  not  a 
proper  subject  of  registration  under  the  Patents, 
Designs,  and  Trade-marks  Act,  1883,  unless  there 
is  a  clearly  marked  and  defined  difference  involv- 
ing substantial  novelty  between  it  and  any  design 
previously  in  use.  Le  May  v.  Welch,  28  Ch.  D. 
24  ;  54  L.  J.,  Ch.  279  ;  51  L.  T.  867  ;  33  W.  R. 

33— C.  A. 

3  0 


1859 


TRADE    AND    TRADE    MARK—  Trad*  Unions. 


1860 


A  design;  for  at&hirt  collar  was  registered,  the 
advantages  claimed  for  which  were — the  height 
of  the  collar  above  the  stud  which  fastened  it  in 
front,  the  catting  away  the  corners  in  the  seg- 
ment of  a  circle,  and  the  absence  of  a  band.  A 
collar  was  shown  to  hare  been  previously  in  use 
which  had  no  band,  in  which  the  corners  were 
cat  away  in  ares  of  circles ;  bat  the  catting 
away  was  not  so  wide,  and  the  height  above  the 
stud  was  not  so  great,  as  in  the  registered  design : 
— Held,  that  the  registered  design  was  not  new 
or  original  within  the  meaning  of  the  act,  and 
must  be  removed  from  the  register.    lb. 

Begiitration— "  Proprietor."]  -In  May,  1885, 
G.,  who  was  acting  as  the  sole  agent  and  con- 
signee in  the  United  Kingdom,  during  the  year 
1885,  of  toys  manufactured  in  the  United  States 
by  an  American  company,  and  consigned  to  him 
by  them,  registered  in  his  own  name  the  designs 
in  accordance  with  which  some  of  such  toys  were 
manufactured.  The  company  had  authorised 
him  to  register  the  designs  in  his  own  name,  but 
had  not  assigned  to  him  the  designs,  or  the  right 
to  apply  them  to  goods,  the  only  arrangement 
between  them  and  G.  being  that  G.  should  sell 
in  the  United  Kingdom  goods  manufactured  and 
consigned  to  him  by  the  company : — Held,  that 
G.  was  not  the  proprietor  of  the  designs  within 
s.  61  of  the  Patents,  &c,  Act,  1883,  and  that  the 
registration  in  his  name  was  therefore  wrongful 
and  most  be  expunged.  Guiterjnan's  Registered 
Designs,  In  re,  55  L.  J.,  Ch.  309 — Pearson,  J. 

Infringement — "  Obvious  Imitation.1'] — A  firm 
of  calico  printers  copied  the  general  effect  of  a 
design  registered  by  a  rival  firm,  but  carefully 
avoided  copying  the  exact  details  of  the  design  : 
— Held,  a  4< fraudulent  and  obvious  imitation" 
within  the  meaning  of  this  section  of  the  Patents, 
Designs,  and  Trade  Marks  Act,  1883,  and  an  in- 
junction was  granted  on  the  balance  of  con- 
venience in  preference  to  defendant's  keeping 
an  account.  Grafton  v.  Watson,  51  L.  T.  141 
— C.A. 


Article  erroneously  marked — Proper  Steps 


out  observing  the  error.  The  letters  Bd.  formed 
part  of  both  the  marks :— Held,  that  the  pro- 
prietor had  not  forfeited  his  copyright,  but  that 
he  was  protected  by  the  proviso  in  s.  51. 
Upmann  v.  Forester  (24  Ch.  IX  231)  followed. 
WUtman  v.  Oppenheim,  27  Ch.  D.  260 ;  54  L.  J. 
Ch.  56 ;  50  L.  T.  713  ;  32  W.  B.  767-Peanon,  J. 

Costs.] — An  innocent  infringer  of  a  regis- 
tered design  must  pay  the  costs  of  a  motion  for 
an  injunction  to  restrain  him  from  infringing, 
though  the  plaintiff  had  given  him  no  notice  of 
the  infringement  before  serving  him  with  the 
writ  in  the  action.    lb. 


to  insure  Marking.!  —  S.  51  of  the  Patents, 
Designs,  and  Trade  Marks  Act,  1883,  applies  to 
the  delivery  on  sale  of  articles  to  which  a  design 
registered  under  the  act  5  &  6  Vict.  c.  100,  has 
been  applied,  and  the  marking  of  such  goods 
since  the  Act  of  1883  came  into  operation  is 
regulated  by  that  act.  Consequently,  the  pro- 
prietor of  a  design  registered  under  the  act  5 
&  6  Vict.  c.  100,  is  in  a  proper  case  entitled  to 
the  benefit  of  the  proviso  contained  in  s.  51, 
which  relieves  him  from  the  forfeiture  of  his 
copyright  resulting  from  the  omission  to  mark 
the  articles  with  the  prescribed  mark,  if  he 
shows  that  he  "  took  all  proper  steps  to  ensure 
the  marking."  The  proprietor  of -a  registered 
design  instructed  the  manufacturer,  who  made 
for  him  the  articles  to  which  the  design  was  ap- 
plied, to  stamp  the  proper  mark  upon  them,  and 
furnished  him  with  a  die  for  the  purpose.  By 
inadvertence  the  manufacturer  marked  some  of 
the  articles  with  a  mark  which  belonged  to  an- 
other design  registered  by  the  same  proprietor, 
the  copyright  of  which  had  expired,  using  for 
the  purpose  by  mistake  an  old  die  which  re- 
mained in  his  possession,  and  the  proprietor, 
after  the  Act  of  1883  came  into  operation,  sold 
some  of  the  articles  thus  wrongly  marked,  with* 


V.  TRADE  TOI0H8. 

JUrie«— Legality— Winding  up— Diftrftntwit 
of  Funds.] — Members  of  a  trade  association  were 
expelled  for  breach  of  rales  in  restraint  of  trade. 
The  association  passed  a  resolution  to  wind  up, 
with  a  direction  to  their  trustees  to  divide  the 
surplus  assets  among  the  persons  entitled  under 
the  rules.  An  inquiry  was  directed  on  summons 
as  to  who  were  the  persons  entitled,  and  in  what 
proportions  : — Held,  that  the  expelled  members 
were  properly  excluded  in  the  chief  clerk's  cer- 
tificate made  in  answer  to  the  inquiry.  Striri 
v.  Swansea  Tin  Plate  Company,  36  Ch.D.558; 
57  L.  J.,  Ch.  438  ;  57  L.  T.  392  ;  35  W.  R.  831— 
North,  J. 

Trade  Protection  Society— Jtale  in  Bertrsiat 
of  Trade.] — A  society  established  for  the  pro- 
tection of  a  particular  trade  contained  a  role 
that  no  member  should  employ  any  traveller, 
carman,  or  outdoor  em  ploy  6  who  had  left  the 
service  of  another  member  without  the  consent, 
in  writing,  of  his  late  employer,  till  after  the 
expiration  of  two  years : — Quaere,  whether  ssch 
a  society  was  to  any  and  what  extent  within  tke 
Trade  Union  Acts,  1871  and  |876.  Mineral 
Water,  fc.,  Society  v.  Boeth,  36  Ch.  D.  465 ;  Si 
L.  T.  673  ;  36  W.  R.  274— C.  A* 

Misapplication  of  Money  by  Officer— fa* 
mary  Conviotion  —  Extinguishment  of  M^h 

The  treasurer  of  a  local  branch  of  a  trade! 
union  fraudulently  misapplied  certain  money* 
belonging  to  his  society,  and  was  summarily  pro- 
ceeded against  and  ordered  to  pay  the  ainourt 
claimed,  and  hi.  by  way  of  penalty.  He  nude 
default  in  payment  of  the  two  sums  and  was 
sentenced  to  two  months'  imprisonment  with 
hard  labour.  He  was  afterwards  proceeded 
against  by  the  general  secretary  of  the  union  m 
the  county  court  for  the  amount  original)? 
claimed,  but  the  county  court  judge  nonssifed 
the  plaintiff  on  the  ground  that  he  was  not  eft- 
titled  to  maintain  the  action.  The  plaintiff 
moved  to  set  aside  the  nonsuit  >— Held,  on  the 
motion  to  set  aside  the  nonsuit,  that,  as  the 
plaintiff  had  had  recourse  to  the  remedy  pro- 
vided by  s.  12  of  34  &  35  Vict.  c.  31,  and  tie 
defendant  had  been  punished,  the  punishment 
suffered  by  him  operated  as  an  extinguishment 
of  the  debt.  Knight  v.  Whitman,  53  h.T.&* 
33  W.  R.  907— D. 

Bight  of  Guardians  to  Eeimbnrs«saeat}--A 

trade  union  is  not  a  "  benefit-  or  friendly  so- 
ciety "  from  which  guardians  of  the  poor  can 


1861 


TRAMWAYS. 


1862 


claim  reimbursement  under  s.  23  of  the  Divided 
Parishes  Act*  1876  (39  &  40  Vict.  c.  61),  s.  23,  in 
respect  of  the  maintenance  of  a  panper.  Winder 
r.  Kingston-upon-Hull,  20  Q.  B.  D.  412  ;  58  L. 
Z  583 ;  62  J.  P.  535— D. 


TRAMWAYS. 

liability  for  Aocident  —  Promoters  or  Les- 

m.1  —  The  Tramways  Act,  1870  (33  & 
34  Vict.  c.  78),  regulating  tramway  companies 
authorised  by  statute  to  use  tramcars  in  the 
public  streets,  enacts  by  s.  55  that  "The  pro- 
moters or  lessees,  as  the  case  may  be,  shall  be 
answerable  for  all  accident,  damages,  and  in- 
juries happening  through  their  act  or  default,  or 
through  the  act  or  default  of  any  person  in  their 
employment,  by  reason  or  in  consequence  of  any 
of  their  works  or  carriages.  .  .  "  : — Held,  that 
J.  55  applies  only  to  a  wrongful  act  or  default, 
•and  does  not  make  the  promoters  or  lessees  an- 
swerable for  mere  accident  caused  without  negli- 
gence by  their  use  of  tramcars.  Brocklehurst  v. 
Manchester  Steam  Tramways  Company,  17 
<J.  B.  D.  118 ;  55  L.  T.  406 ;  34  W.  R.  568  ;  51 
•J.  P.  55— D. 

Removal  of  Lines  — "Road  Authority"  — 
TOlo  to  Replace.] — A  railway  company,  which 
had  repaired  and  maintained  for  forty  years  a 
bridge  with  its  approaches  over  which  the  plain- 
tiff tramway  company  had  acquired  by  statute 
the  right  to  lay,  maintain,  and  use  their  tramway 
lines,  found  it  necessary  to  reconstruct  the  bridge 
in  the  interests  of  th«  public  safety,  and  gave  to 
the  plaintiff  company  statutory  notices  under 
«ction  32  of  the  Tramways  Act,  1870.  They 
then  reconstructed  the  bridge,  and  the  road 
over  it,  with  the  sanction  and  approval  of  the 
local  authorities  in  whom  the  road  was  vested, 
and  for  the  purposes  of  such  reconstruction  re- 
moved the  pla*n  tiffs'  tramways.  After  the  re-con- 
strnction  the  railway  company  restored  the  road- 
way over  the  bridge  and  its  approaches,  and  the 
plaintiffs  restored  the  tramways  under  protest  as 
to  the  cost  of  such  restoration  : — Held,  that  the 
railway  company  had  authority  to  remove  the 
tramway  lines  for  the  purposes  aforesaid,  and 
were  not  under  liability  to  the  plaintiffs,  pro- 
vided that  they  caused  as  little  detriment  or  in- 
convenience as  possible  in  carrying  out  the  said 
repairs.  Wolverhampton  Tramways  Company 
v.  Great  Western  Railway,  56  L.  J.,  Q.  B.  190 ; 
56  L.  T.  892— D. 

Paving — Control  of  Local  Authority— Refer- 
once  to  Arbitration.] — By  a  local  Tramway  Act, 
passed  after  and  incorporating  the  Tramways 
Act,  1870,  the  space  between  the  rails  and  for  a 
distance  of  eighteen  inches  beyond  each  external 
rail  was  to  be  paved  by  the  company  to  the 
satisfaction  of  the  local  authority  for  the  district 
with  wood  or  other  paving  to  be  approved  of  by 
the  local  authority.  On  an  application  by  the 
company  the  local  authority  declined  to  approve 
of  a  particular  paving,  and  the  company  there- 
upon laid  it  down  without  such  approval.  On 
an  application   by  the   local  authority  for  a 


mandamus .  to  the  company  to  take  up  the 
paving  bo  laid  down : — Held,  that  the  powers 
given  to  the  local  authority  were  subject  to  the 

S  revisions  of  the  Tramways  Act,  1870,  that  a 
ifference  had  arisen  within  s.  33  of  that  Act 
which  ought  to  be  determined  by  a  referee  ap- 
pointed by  the  Board  of  Trade,  and  that  the 
mandamus  ought  not  to  be  granted.  Reg.  v. 
Croydon  and  Norwood  Tramway*  Company,  18 
Q.  B.  D.  39  ;  56  L.  J.,  Q.  B.  125 ;  56  U  T.  78; 
35  W.  R.  299  ;  51  J.  P.  420— C.  A. 

Repair  of  Road— Agreement  with  Local  An* 
thority  —  Liability  of  County  Authority.]  — 
By  a  local  Tramways  Act  it  was  provided  that  in 
case  steam  power  should  be  used  on  the  tramway, 
the  tramway  company  should  repair  the  whole 
extent  of  that  part  of  a  main  road  over  which 
their  lines  passed,  but  that  the  company  might 
make  such  contracts  and  agreements  for  the 
repair  of  the  road  with  the  local  authority  of 
the  borough  as  might  be  approved  by  the  Board 
of  Trade.  It  was  also  provided  that  no  contract 
or  agreement  to  be  entered  into  under  the  act 
should  operate  to  lessen  the  liability  of  the  com- 
pany under  s.  28  of  the  Tramways  Act,  1870, 
The  road  authority  of  the  borough  entered  into 
a  contract  with  the  company,  by  which  the  ex- 
penses of  maintenance  and  repair  of  the  road 
were  divided  between  them.  In  an  action  by 
the  borough  road  authority  against  the  county 
authority  for  contribution  under  s.  13  of  the 
Highways  and  Locomotives  Act,  1878 : — Held, 
that  the  county  authority  were  liable  to  pay  out 
of  the  county  rate  one-half  of  the  expenses  in- 
curred by  the  borough  authority  under  the  con- 
tract. Over-Darwen  (Mayor)  v.  Lancashire  JJ., 
58  L.  T.  51  ;  36  W.  R.  140— D. 

Liability  for  Hon-repair  of  Road— Contract 
with  Road  Authority.  J  —  Where  a  tramway 
company  enters  into  a  contract  with  the  road 
authority  under  s.  29  of  the  Tramways  Act,  1870, 
whereby  the  road  authority  undertakes  the  repair 
of  the  portion  of  the  road  upon  which  the  tram* 
way  is  laid,  the  liability  for  damage  occasioned 
by  the  non-repair  of  that  part  of  the  road,  which 
would  but  for  such  contract  be  cast  by  s.  28 
upon  the  tramway  company,  is  transferred  to 
the  road  authority.  Howitt  v.  Nottingham  awl 
District  Tramways  Company,  12  Q.  B.  D.  16  ;  5-'l 
L.  J.,  Q.  B.  21 ;  50  L.  T.  99  ;  32  W.  R.  248— D, 

Liability  for  Obstruction  in  Road.  ]  —  Sta 
Barham  v.  Ipswich  Dock  Commissioners,  post, 
Wat. 

Use  of  Steam  Engines— Licence  of  County 
Authority.] — The  steam  engines  authorised  by 
statute  to  be  used  on  tramways  are  not  loco- 
motives within  the  meaning  of  the  Highway-) 
and  Locomotives  (Amendment)  Act,  1878,  a.  32, 
and,  therefore,  do  not  require  to  be  licensed  by 
the  county  authority.  Bell  v.  Stockton  Trami* 
ways  Company,  51  J.  P.  804 — D. 

Liability  for  Acts  of  Servants — Scope  of  Em- 
ployment.]— Section  52  of  the  Tramways  Act* 
1870,  which  enacts  that  "  it  shall  be  lawful  for 
any  officer  or  servant  of  the  promoters  or  lessevg 
of  any  tramway"  to  detain  any  person  defraud- 
ing the  company  of  his  fare,  must  be  construed 
as  limited  to  any  officer  or  servant  appointed  for 
that  purpose.     A  tramway  company  gave  to> 

3  0  2 


1363 


TRESPASS. 


1861 


their  conductors  printed  instructions,  in  which 
it  was  ordered  that,  except  in  cases  of  assault, 
conductors  were  not  to  give  passengers  into 
custody  without  the  authority  of  an  inspector  or 
timekeeper.  The  conductor  of  a  car,  in  which 
the  plaintiff  was  a  passenger,  detained  the 
plaintiff,  and  gave  her  into  custody  on  a  charge 
of  passing  bad  money : — Held,  in  an  action  for 
false  imprisonment  against  the  company,  that 
the  defendants  were  not  liable.  Charleston  v. 
London  Tramway*  Company,  36  W.  K.  367 
—I).    Affirmed  32  S.  J.  567— C.  A. 

A  passenger  on  a  tramway  tendered  a  half 
sovereign  to  the  conductor  of  the  car  in  payment 
of  the  fare.  The  conductor,  supposing  the  coin 
to  be  counterfeit,  gave  the  passenger  in  charge 
to  the  police.  Sections  51  and  52  of  the  Tramways 
Act,  1870,  empower  officers  or  servants  of  the  pro- 
moters or  lessees  of  any  tramway,  to  seize  and 
detain  any  person  seeking  to  avoid  payment  of 
his  fare  : — Held,  that  the  tramway  company 
were  liable  in  an  action  against  them  by  the 
passenger  for  false  imprisonment.  Furlong  v. 
South  London  Tramways  Company,  48  J.  P. 
829  ;  1  C.  &  E.  31ft—  Stephen,  J. 

Bye-laws  —  Emission  of  Steam.]  —  H.  was 
driver  of  a  steam-engine  on  a  tramway  ;  one  of 
the  bye-laws  enacting  that  no  steam  shall  be 
emitted  from  the  engine,  so  as  to  be  a  reasonable 
ground  of  complaint  to  passengers  or  the  public. 
H.  as  driver  was  resting  the  engine,  which  was 
not  in  good  repair,  and  he  could  not  help  emit- 
ting steam,  and  one  passenger  only,  when  passing, 
complained  of  it : — Held,  that  *H.  was  rightly 
convicted,  as  the  bye-law  was  imperative  and 
the  evidence  was  sufficient,  though  he  had  no 
mens  rea,  and  one  passenger  only  complained. 
Hartley  v.  Wilkinton,  49  J.  P.  726— D. 

Reasonableness— Delivery  of  Ticket]— 

The  bye-law  of  a  tramway  company  which  pro- 
vides that  each  passenger  shall  deliver  up  his 
licket  when  required  to  do  so,  or  pay  the  fare 
for  the  distance  travelled  over,  is  a  reasonable 
bye-law.  A  passenger  travelling  under  such  cir- 
cumstances, who  shows  his  ticket,  but  refuses  to 
deliver  it  up  on  the  ground  that  his  journey  has 
not  terminated,  is  liable  to  the  penalty  pre- 
scribed bv  the  bye-law.  Heap  v.  Day,  34  W.  R. 
627  ;  51  J.  P.  213— D. 


Regulating  number  of  Passengers.]— It 


is  competent  to  the  local  authority  of  any 
borough  to  make  and  to  enforce  a  bye-law  under 
s.  48  of  the  Tramways  Act,  1870,  for  regulating 
the  number  of  passengers  to  be  carried  in  and 
upon  tram  cars,  and  the  extent  of  accommodation 
to  be  afforded  to  them.  The  assent  of  the  lessees 
of  the  line  (under  s.  46)  is  not  necessary  to  the 
validitv  of  such  bye-law.  Smith  v.  Bvtler,  16 
Q.  B.  D.  349  ;  34  W.  R.  416  ;  50  J.  P.  260— D. 

Winding-up  Unregistered  Company.  ]— An  un- 
registered tramway  company  incorporated  by  a 
special  act  does  not  fall  within  the  exception  of 
"  railway  companies  incorporated  by  Act  of 
Parliament"  in  s.  199  of  the  Companies  Act, 
1 862.  and  it  may  therefore  be  wound  up  under 
that  section.  Brentford  and  Isleworth  Tram- 
way* Company,  In  re,  26  Ch.  D.  527  ;  53  L.  J., 
•  Ch.  624  ;  50  L.  T.  580  ;  32  W.  R.  895— V.-C.  B. 


TREES. 

See  TIMBER. 


TRESPASS. 

To  Land— Right  of  Owner  to  Bjeet.]— Where 
a  person  has  gained  possession  of  property,  bat 
has  no  title  to  it,  being  in  fact  a  trespasser,  the 
rightful  owner  is  entitled  to  use  force  in  ejecting 
him,  so  long  as  he  does  him  no  personal  injury. 
Scott  v.  Brown,  51  L.  T.  746 — Kay,  J. 

Animals  —  Liability  of  Owner.]  — The 

plaintiff,  a  labourer,  was  digging  a  hole  in  the 
garden  of  a  house  adjoining  that  of  the  defen- 
dant. A  low  wall  belonging  to  the  defendint 
divided  the  gardens.  While  the  plaintiff  was  at 
work  at  the  bottom  of  the  hole  a  dog  belonging 
to  the  defendant,  going  over  land  belonging  to 
third  persons  on  his  way  to  the  defendant's 
garden,  leaped  into  the  hole  and,  falling  on  the 
defendant,  injured  him  severely  : — Held,  that  as 
the  dog  was  not  shown  to  be  mischievous  to  the 
knowledge  of  the  owner,  no  action  would  lie 
either  for  trespass  or  any  breach  of  duty.  Sanim 
v.  Tcape,  51  L.  T.  263— D. 

Sending  back  Infected  Hones  to  Vender.} 

— A  purchaser  of  a  horse  sent  it  back  to  the 
seller  on  the  ground  of  non-compliance  with  a 
warranty.  The  horse  did  comply  with  the  war- 
ranty, and,  whilst  in  the  purchaser's  stables, 
contracted  a  contagious  disease.     Of  this  the 

Eurchaser  was  unaware  when  he  sent  back  the 
orse.  On  arriving  back  at  the  seller's  stable* 
other  horses  of  the  seller  s  contracted  the  disease 
from  it,  and  died  : — Held,  that  the  seller  could 
not  recover  damages  from  the  purchaser  for  the 
loss  of  those  other  horses.  Wright  v.  Urttt** 
Downs  Co-operative  Society,  1  C.  &  E.  200— 
Hawkins,  J. 

To  Person  and  Goods— Same  wrongful  Art- 
Estoppel.] — Damage  to  goods,  and  injury  to  the 
person,  although  they  have  been  occasioned  by 
one  and  the  same  wrongful  act,  are  infringe- 
ments of  different  rights,  and  give  rise  to  distinct 
causes  of  action  ;  and  therefore  the  recovery  in 
an  action  of  compensation  for  the  damage  to  the 
goods  is  no  bar  to  an  action  subsequently  com- 
menced for  the  injury  to  the  person.  The  plain- 
tiff brought  an  action  in  a  county  court  for 
damage  to  his  cab  occasioned  by  the  negligence 
of  the  defendant's  servant,  and,  having  recovered 
the  amount  claimed,  afterwards  brought  an 
action  in  the  High  Court  of  Justice  agaiust  the 
defendant,  claiming  damages  for  personal  injur? 
sustained  by  the  plaintiff  through  the  sane 
negligence : — Held  (Lord  Coleridge,  CJ.,  die- 
senting),  that  the  action  in  the  High  Court  was 
maintainable,  and  was  not  barred  by  the  pre- 
vious proceedings  in  the  county  court.  BrttnUen 
v.  Humphrey,  14  Q.  B.  D.  141  ;  53  L.  J.,  Q.  B. 
476  ;  51  L.  T.  529  ;  32  W.  R.  944 ;  42  J.  P.  4— 
C.  A. 


Proeeedings.]—  See  Ceisttnax  Law, 
II.  20,  and  Cole  v.  Mile*,  ante,  coL  1551. 


65 


TROVER— TRUST  AND  TRUSTEE. 


186G 


TRIAL. 

Of  Criminal  Guts.]— &e  Criminal  Law. 
Of  Civil  Hatters.]— See  Practice. 


TRINIDAD. 

See  COLONY. 


TRINITY  HOUSE. 

See  SHIPPING,  XVI. 


TROVER. 

Power  of  County  Court  to  order  return  of 
Chattel] — In  an  action  of  detinue  brought  in 
the  county  court,  the  county  court  judge  has 
jurisdiction  to  make  an  order  for  the  delivery^ 
by  the  defendant  of  the  specific  chattel  wrong- 
fully detained,  without  giving  him  the  option 
of  paying  its  assessed  value  as  an  alternative. 
Winfield  v.  Boothroyd,  54  L.  T.  574  :  34  W.  K. 
501-D. 

stli  of  Stolen  Goods  in  Market  Overt.]— The 
defendants  were  public  sale  masters,  and  carried 
on  business  in  a  legally  established  cattle  market, 
▼here  a  market  overt  for  the  sale  of  cattle  and 
sheep  was  held  once  a  week.  A  number  of  sheep, 
which  had  been  stolen  from  the  plaintiff,  were 
brought  on  a  market  day  to  the  stand  of  the 
defendants  by  the  thief,  who  employed  the  defen- 
dants to  sell  the  sheep  for  him.  The  defendants 
in  ignorance  of  the  theft  placed  the  sheep  in  their 
stand,  and  sold  and  delivered  them  to  a  purchaser 
by  whom  they  were  removed  : — Held,  that  the 
defendants  were  liable  in  an  action  of  trover  for 
the  value  of  the  sheep.  Delaney  v.  Walli*,  14 
L.  R.,  Ir.  31 ;  15  Cox,  C.  C.  525— C.  A. 

Against  Auctioneer  for  Goods  Sold.]— See 
Turner  v.  I  lite  key,  ante,  col.  1589. 

Goods  in  Custody  of  Police.] — The  police  have 
power  under  a  warrant  for  the  arrest  of  a  person 
■charged  with  stealing  goods,  to  take  possession 
of  the  goods  for  the  purposes  of  a  prosecution. 
A  person  is,  therefore,  justified  in  refusing  to 
band  over  goods  to  one  claiming  to  be  the  owner, 
it  snch  person  has  been  entrusted  with  them  by 
the  police  who  have  taken  possession  of  them 
onder  such  circumstances.  Tyler  v.  London  and 
Amth  Western  Railway,  1  C.  &  E.  285— 
Huddleston,  B. 

light  of  Owner  to  follow  Proceeds  of  Sale.]— 
Where  a  person  wrongfully  obtained  goods  and 


sold  them,  and  the  proceeds  of  sale  were  paid 
into  a  colonial  bank  for  the  purpose  of  trans- 
mission to  its  London  branch,  he  receiving  bills 
of  exchange  to  the  amount  of  the  proceeds  drawn 
by  the  colonial  bank  on  its  London  branch : — 
Held,  that  the  owners  of  the  goods  were  entitled 
to  follow  the  proceeds  in  the  bands  of  the  bank, 
and  to  be  paid  the  amount  of  the  bills,  as  bills, 
as  they  became  possessed  of  them.  ComitS  des 
Assureur*  Maritime*  v.  Standard  Bank  of  South 
Africa,  1  0.  &  E.  87— Stephen,  J. 

Measure  of  Damages.] — The  plaintiff  ware- 
housed  hops  with  the  defendants.  The  ware- 
house rent  not  being  paid,  the  defendants  on 
the  7th  of  July  sold  the  hops  to  R.  On  the 
29th  July  R.  sold  them  back  to  the  defendants, 
who,  on  the  same  day,  sold  them  to  L.  On  the 
16th  of  August  L.  sold  them  to  K.,  who,  on  the 
20th  of  September  removed  them  from  the  de- 
fendants' warehouse,  where  they  had  remained 
up  to  that  time,  not  having  been  removed  by 
any  of  the  purchasers.  None  of  these  sales  was 
in  market  overt.  A  letter  was  sent  by  the  de- 
fendants to  the  plaintiff  on  the  5th  of  July, 
giving  him  notice  of  their  intention  to  sell,  and 
a  second  letter  was  sent  on  the  22nd  of  July 
informing  the  plaintiff  of  the  sale,  and  inclosing 
a  cheque  for  the  balance  of  the  purchase-money, 
after  deducting  the  warehouse  rent.  The  plain- 
tiff never  received  either  of  these  letters : — Held, 
in  an  action  to  recover  damages  for  the  conver- 
sion of  the  hops,  that  the  measure  of  damages 
was  not  to  be  restricted  to  the  value  of  the  hops 
on  the  7th  of  July,  but  was  their  value  on  the 
20th  of  September,  when  K.  removed  them  from 
the  defendants'  warehouse.  Johnson,  v.  Hookt 
31  W.  R.  812  ;  1  C.  &  E.  89— Stephen,  J. 


TRUST   AND   TRUSTEE. 


I.   Ceeation     and 
Trusts,  1867. 


Declaration     of 


II.   Rights  and  Liabilities  of   Trus- 
tees. 

1.  Investment*,  1872. 

a.  Mortgages,  1872. 
A.  In  Other  Cases,  1876. 

2.  Right  to  Indemnity,  1877. 

3.  Right  of  Contribution  from  Co~Tru** 

tee,  1877. 

4.  Discretion  of  Trustee*.  1879. 

5.  Power*  of  Sale,  1882. 

6.  Dealing*  between  Trustee  and  Cestui 

que  Trust,  1885. 

7.  Breach  of  Trust,  1886. 

8.  Liability  for  Act*  of  Agent*,  1889. 

9.  Getting  in  Trust  Funds,  1890. 

10.  Management  of  Trust — Carrying  on, 

Business,  1891. 

11.  Payment*  to  Trustee*,  1892. 

12.  Preservation  and    Repair  of  Pre* 

mises,  1893. 

13.  Payment  of  Cost*,  1895. 

14.  Notice  to  Trustees,  1898. 

16.  Production  of  Title  Deeds,  1899. 
16.  Other  Proceeding*  by  and  against , 
1899 


1867 


TRUST    AND    TRUSTEE. 


*v 


186» 


III.  Tbu8tee  Acts. 

1.  Payment  into  Court,  1900. 

2.  Appointment  of  Person  to  Convey, 

1901. 

3.  Venting  Order — See  infra,  IV. 

IV.  Vesting  Orders. 

1.  In  what  Cases,  1903. 

2.  Practice  as  to,  1909. 

V.  Appointment  and  Removal  of  Trus- 
tees. 

1.  Exercise  of  Power,  1911. 

2.  In  what  Cases,  1912. 

3.  Who  Appointed  Trustees,  1917. 

4.  Practice,  1918. 

VI.  Following  Tbxtst  Money,  1919. 

VII.  The  Trust  Estate,  1921. 

VIII.  Effect  of  Statute  of  Limitations 
—See  Limitations  (Statute  of),  1. 1. 


I.  CEEATIOH  AHD  DECLARATION  OF 

TBU8T8. 

"  By  Operation  of  Law  " — How  Leaae.]— In 
1865,  A.  by  a  post-nuptial  settlement,  in  con- 
sideration of  natural  love  and  affection,  as- 
signed a  lease  for  a  term  expiring  in  1905  to 
trustees  in  trust  for  the  benefit  of  his  wife.  In 
1870,  without  disclosing  the  settlement,  A. 
obtained  a  lease  of  the  same  premises  for  forty 
years  in  consideration  of  a  premium  of  912.  and 
the  surrender  of  the  old  lease.  The  old  lease, 
cancelled,  and  the  new  lease,  were  delivered  by 
A.  to  his  wife  : — Held,  that  although  there  was 
no  written  declaration  of  trust  of  the  new  lease, 
such  lease  was  "  by  operation  of  law  "  subject  to 
the  trusts  of  the  settlement  declared  in  respect 
of  the  old  lease.  I/ulham,  In  re,  Brinton  v. 
Lull  tarn,  53  L.  T.  9  ;  33  W.  B.  78&— C.  A. 
Affirming  53  L.  J.,  Ch.  928— Kay,  J. 

Leaseholds — Tenant  for  Life  Purchasing  Re- 
Torsion.] — The  doctrine  that  a  renewal  of  lease- 
holds by  a  tenant  for  life  enures  for  the  benefit 
of  the  remainderman  applies  equally  to  a  pur- 
chase of  the  reversion.  Phillips  v.  Phillip*,  29 
Ch.  D.  673  ;  54  L.  J.,  Ch.  943  ;  53  L.  T.  403  ;  33 
W.  R.  863— C.  A. 

Renewal  becoming  Impossible — Purchase 

of  Reversion  by  Assignee  of  Tenant  for  Life.  J — 
A  leasehold  for  lives  was  devised  by  a  testator 
who  died  in  1820  to  trustees,  on  trust  for  a 
tenant  for  life  and  other  persons  in  remainder, 
the  ultimate  remainder  in  fee  being  given  to  the 
tenant  for  life.  The  first  trust  was  to  renew  the 
lease  from  time  to  time,  paying  the  necessary 
fines  and  expenses  out  of  the  rents,  or  raising 
them  by  mortgage.  In  1825,  the  trustees  ob- 
tained a  renewed  lease  for  three  lives,  one  of 
which  was  that  of  the  tenant  for  life.  In  1855, 
and  1859,  respectively,  the  other  two  lives  drop- 
ped. In  October,  1876,  the  tenant  for  life  con- 
tracted to  sell  all  his  interest  in  the  property  to 
B.,  and  a  conveyance  was  executed  in  March, 
1879.  In  December,  1876,  the  Ecclesiastical 
Commissioners,  in  whom  the  reversion  subject 
to  the  lease  was  then  vested,  and  who  would  not 


renew  the  lease,  contracted  to  sell  the  reversion 
to  B.t  and  in  August,  1879;  they  executed  a 
conveyance  to  him,  the  conveyance  being  ex- 
pressly made  subject  to  "such  trusts,  equities 
estates,  and   interests,"  as  then  affected  the 
leasehold  interest    In  June,  1878,  the  School 
Board  for  London,' under  their  statutory  powers 
took  part  of  the  property,  and  in  January,  1880,. 
they  paid  the  purchase-money  and  compensation 
money  into  court.    The  legal  estate  in  the  lease 
was  outstanding  in  the  representatives  of  the 
last  surviving  trustee  of  the  will : — Held,  that, 
irrespectively  of  the  form  of  the  conveyance  of 
the  reversion  to  B.,  it  was,  according  to  the 
ordinary  doctrine  of  a  Court  of  Equity,  impos- 
sible for  him  to  purchase  the  reversion  otherwise 
than  as  a  trustee  for  the  persons  interested  in 
the  lease  under  the  trusts  of  the  will,  and  that,, 
subject  to  his  right  to  be  recouped  the  poiehaie- 
money,  he  was  only  entitled  to  an  order  for  pay- 
ment of  the  interest  on  the  fund  in  court  during 
the  life  of  the  tenant  for  life  under  the  will 
Hardman  v.  Johnson  (3  Mer.  347)  distinguished. 
BanelagKs  (Zwrf)  Will,  In  re,  26  Ch.  D.  590 ; 
53  L.  J.,  Ch.  689 ;  61  L.  T.  87  ;  32  W.  B.  714— 
Pearson,  J. 

Bequest— Condition  in  Nature  of  a  Trust]- 
A  bequest  of  a  capital  sum  was  made  to  the 
Royal  National  Lifeboat  Institution  on  condition 
of  its  constructing  and  keeping  up  two  life- 
boats, and  coupled  with  a  gift  over  in  the  event 
of  non-compliance  with  the  condition :— Held, 
that  the  bequest  was  in  the  nature  of  a  trust 
Rieliurdson,  In  re.  Shuldham  v.  Royal  Xativtat 
Lifeboat  Institution,  56  L.  J..  Ch.  784  ;  57  L  t 
17  ;  35  W.  R.  710— Chitty,  J. 

Executor — Mistake — Besiduary  Account] — 
Where  an  executor  had  passed  his  residuary 
account,  stating  that  a  legacy  was  "  retained  in 
trust "  out  of  the  residue : — Held,  that  he  w» 
not  entitled  to  show  that  he  had  since  discovered 
that  the  account  had  proceeded  on  a  mistake, 
and  that  there  were  not  in  fact  assets  for  the 
legacy.  Brewster  v.  Prior,  55  L.  T.  771;  & 
W.  R.  251— Kekewich,  J. 

Direction  to  Executors  of  Donor— Betentioft 
of  Gift.]— Some  time  before  his  death  a  testator 
informed  his  daughter's  companion  F.  P.  that 
he  intended  to  give  her  a  debenture  bond  for 
1,000*.  in  the  M.  8.  and  L.  Railway  Company. 
Shortly  afterwards  he  signed  the  following 
memorandum  :  "  I  wish  to  communicate  to  my 
executors  that  I  have  to-day  given  to  Miss  F.  P. 
my  1,000*.  debenture  bond  of  the  M.  S.  and  L 
Railway  Company ;  but,  as  I  shall  require  the 
annual  dividends  to  meet  my  necessary  expense!, 
I  retain  the  document  in  my  own  possession  for 
my  lifetime,  requesting  you,  on  my  decease,  to 
hand  it  over  to  Miss  F.  P.,  and  communicate  to- 
the  secretary  of  the  railway  company  at  the 
Manchester  office,  relative  to  the  transfer  of  the 
said  bond  being  entered  in  their  books.  Given 
under  my  hand  this  9th  day  of  February,  1881 
As  witness  my  hand.— G.  S.  P.S.— You  will  find 
the  bond  in  my  deed-box  attached  to  this  memo- 
randum." After  the  testator's  death  a  certificate 
of  debenture  stock  for  1,000/.  in  the  M.  S.  and 
L.  Bail  way  Company  was  found  with  the  memo- 
randum in  the  deed-box : — Held,  that  the  memo- 
randum was  an  ineffectual  attempt  to  assign  the 
debenture  stock,  and  did  not  amount  to  a  good 


1869 


TBUST    AND    TKUOTEE. 


1870 


declaration  of  trust,  and  that  JF.  P.  had  no 
interest  in  the  debenture  stock.  Shield,  In  re, 
Pethybridge  v.  Burrow,  53  L.  T.  5— C.  A. 

Will— Trust  not  oommunioated  till  after  Tes- 
tfttor*!  Death.  J — A  testator  cannot  by  imposing 
a  trust  upon  his  devisee  or  legatee,  the  object  of 
which  be  does  not  communicate  to  him,  enable 
himself  to  evade  the  Statute  of  Wills  by  declar- 
ing those  objects  in  an  unattested  paper  found 
after  bis  death.  In  order  to  make  such  a  trust 
binding,  it  is  essential  that  it  should  be  commu- 
nicated to  the  devisee  or  legatee  during  the  tes- 
tator's lifetime,  and  that  he  should  accept  that 
particular  trust.  Boye*,  In  re,  Boyes  v.  Carritt, 
26  Ch.  D.  531 ;  63  L.  J.,  Ch.  654  ;  50  L.  T.  581  ; 
52  W.  R.  630-Kay,  J. 

The  testator,  by  his  will,  made  shortly  before 
going  abroad,  gave  all  his  property  to  C,  his 
sole  executor,  who  was  a  solicitor  and  drew  the 
will.  In  an  action  in  the  Probate  Division,  C. 
admitted  that  he  was  only  a  trustee  of  the  pro- 
perty, and  said  that  the  intention  of  the  testator 
was  that  he  should  hold  upon  certain  trusts  of 
which  he  would  inform  him  when  he  arrived 
abroad.  No  direction  was  given  to  C.  by  the 
testator  during  his  lifetime,  but  after  his  death 
two  letters  were  found  among  his  papers  ad- 
dressed to  C,  and  naming  a  person  whom  he 
wished  to  be  the  object  of  his  bounty : — Held, 
that  C.  was  a  trustee  for  the  next-of-kin  of  the 
testator.    lb. 

Bequest  of  200/.  to  A.  and  B.  "  to  spend  as  I " 
(the  testatrix)  "  shall,  by  word  of  mouth,  direct 
daring  my  lifetime."  The  testatrix  verbally 
informed  A.  that  she  wished  to  leave  "  some- 
thing to  J.,  and  something  to  the  Lord's  work," 
and  suggested  C.  and  D.  as  persons  to  whom  she 
proposed  to  give  the  last-mentioned  bequest 
After  the  testatrix's  death  A.  found  a  letter  in 
her  handwriting,  which,  after  reciting  the  bequest 
in  the  will  of  the  200/.,  proceeded  as  follows : — 
u  I  would  ask  you  to  give  or  send  100/.  to  J. ; 
the  second  I  wish  sent  for  the  Lord's  work,  50/. 
to  C,  and  50/.  to  D. ;  I  would  ask  them  to  lay  it 
out : " — Held,  that  no  valid  trust  was  created 
affecting  any  portion  of  the  200/.  King's  Estate, 
In  re,  21  L.  R.,  Ir.  273— Monroe,  J. 

Delivery  of  Promissory  Vote  to  Third  Person 
on  Condition.] — A  testatrix  made  her  will  in 
1873,  and  thereby  bequeathed  a  legacy  of  150/. 
to  E.  EL,  who  was  living  with  her  as  a  domestic 
servant.    In  August,  1877,  the  testatrix  handed 
to  C,  her  solicitor  (whom  she  had  appointed  one 
of  her  executors),  a  promissory  note  for  200/., 
signed  by  herself  and  payable  on  demand  to  E.  H., 
telling  C.  not  to  mention  the  note  to  any  one  but 
B.  H.,  but  to  retain  it  till  the  death  of  the  testa- 
trix, and  then  to  give  it  to  £.  H.,  if  she  should  re- 
main in  the  service  of  the  testatrix  until  her  death. 
B.  H.  was  informed  of  the  note  soon  after  it  had 
been  handed  to  C.    The  testatrix  had  previously 
told  E.  H.  that,  if  she  should  continue  in  her 
service  until  her  death,  she  would  leave  in  the 
care  of  C.  a  present  for  her,  beyond  what  she 
might  leave  to  her  in  her  will.  E.  H.  remained  in 
the  service  of  the  testatrix  until  the  death  of  the 
latter,  and  the  promissory  note  continued  in  the 
possession  of  O.  The  testatrix  died  in  1881.  Sbe 
had  never  revoked  the  direction  which  she  had 
given  to  C.  about  the  note  :— Held,  that  C.  was 
constituted  a  trustee  of  the  note,  that  he  might 
after  the  death  of  the  testatrix  hand  it  over  to 


E.  H.  if  she  had  fulfilled  the  prescribed  condition, 
and  that,  as  the  testatrix  had  never  revoked  the 
direction  which  she  had  given  to  C,  E.  H.  was 
entitled  to  prove  for  the  amount  of  the  note  in 
the  administration  of  the  estate  of  the  testatrix. 
Richard*,  In  re,  Shenttone  v.  Brock,  36  Ch.  D« 
541 ;  56  L.  J.,  Oh.  923  ;  57  L.  T.  249  ;  36  W.  R» 
118— North,  J. 

Money  to  pay  Dividends  in  hands  of  Agent* 
for  Foreign  Government] — A  foreign  govern- 
ment issued  a  public  loan  under  a  decree  and  an 
agreement  providing  for  a  mortgage  to  the  defen- 
dants of  certain  estates  on  behalf  of  bondholders. 
The  defendants  received  instructions  to  pay 
coupons  for  interest  falling  due  on  the  1st  of 
June,  less  five  per  cent,  tax,  pursuant  to  a  decree 
of  the  government  which  was  to  take  effect  sub- 
ject to  the  promulgation  of  a  decree  modifying 
the  Law  of  Liquidation.  The  defendants  having 
received  from  the  government  a  sum  of  money 
to  meet  the  half-yearly  interest  less  five  per  cent., 
advertised  that  they  would  make  such  payments. 
Subsequently  the  defendants  received  10,000/., 
being  the  amount  of  the  five  per  cent.,  from  the 
commissioners  of  the  government  who  managed 
the  mortgaged  estates,  but  it  did  not  appear  that 
such  commissioners  were  authorised  to  remit 
such  sum.  The  defendants,  however,  issued  a 
further  advertisement  that  the  coupons  would  be 
paid  in  full.  Finally,  they  issued  an  advertise- 
ment that  in  accordance  with  directions  of  the 
government  the  coupons  would  be  paid  less  five 
per  cent.,  notwithstanding  that  the  amount  re- 
quired to  pay  the  same  in  full  had  been  duly  re- 
mitted to  them  by  the  commissioners.  After 
such  last  advertisement  the  decree  modifyingthe 
Law  of  Liquidation  was  passed.  The  plaintiff,  a 
bondholder,  brought  this  action  claiming  pay- 
ment of  his  coupon  in  full  by  the  agents  pursuant 
to  the  second  advertisement : — Held,  that  the 
10,000/.  was  not  remitted  to  the  agents  by  persons 
who  had  authority  to  do  so  on  behalf  of  the 
government,  and  that  therefore  it  was  not  im- 
pressed with  a  trust  in  favour  of  the  bondholders, 
llenderton  v.  Rotlmchild,  56  L.  J.,  Ch.  471  ;  56 
L.  T.  98 ;  35  W.  R.  485— C.  A.  Affirming  33 
Ch.  D.  459— V.-C.  B. 


Agreement  before  Marriage— Hot  signed  by 
Party.] — Shortly  before  marriage  M.,  the  in- 
tended husband,*  signed  and  delivered  to  C,  the 
intended  wife,  an  agreement  for  the  separate  use 
by  the  latter  of  certain  tenements  held  by  her  in 
fee.  The  agreement,  however,  was  not  signed  by 
C.  After  the  marriage  she  made  a  will  devising 
the  said  property  to  the  defendants  who,  upon 
her  decease  took  possession  of  the  same.  In  an 
action  by  the  plaintiff,  C.'s  heir-at-law,  to  esta- 
blish his  title  to  and  recover  possession  of  the 
property  : — Held,  that  the  agreement  not  having 
been  signed  by  C,  it  was  by  reason  of  s.  7  of  the 
Statute  of  Frauds,  void  as  a  declaration  of  trust 
for  separate  use  of  the  fee  simple,  M.  having 
only  an  estate  for  the  joint  lives  of  himself  and 
C,  with  a  possible  estate  by  curtesy,  and  that 
the  plaintiff  was,  therefore,  entitled  to  recover  ; 
the  mere  renunciation  by  M.  of  his  marital  rights 
in  C.'s  real  property  not  being  sufficient  to  clothe 
her  with  a  testamentary  power,  or  to  constitute 
a  valid  declaration  of  trust  of  the  fee.  Dye  v. 
Dye,  13  Q.  B.  D.  147 ;  53  L.  J.,  Q.  B.  442  ;  51 
L.  T.  145  ;  33  W.  R.  2— C.  A. 


1871 


TRUST    AND    TRUSTEE. 


1872 


Trust  for  Accumulation— Treat  for  benefit  of 
Mortgagee!.]  —  By  a  voluntary  settlement 
certain  freehold  estates  were  settled,  subject 
to  the  mortgages  subsisting  thereon,  to  the 
use  of  the  settlor  for  life,  with  remainder  to 
the  use  of  trustees  for  500  years,  and  subject 
thereto  in  strict  settlement.  And  the  trusts  of 
the  term  were  declared  to  be  that  the  trustees 
should  during  the  period  of  twenty-one  years  from 
the  death  of  the  settlor  receive  out  of  the  rents 
of  the  estate  the  annual  sum  of  1,000/.  and 
accumulate  it  at  compound  interest,  and  should 
at  the  expiration  of  that  period,  or  from  time  to 
time  during  that  period,  as  they  might  think  fit, 
apply  the  accumulated  fund  in  satisfaction  of 
the  mortgages  then  charged  on  the  estate,  and 
6hould  pay  the  surplus  of  the  rents  to  the  person 
entitled  to  the  immediate  reversion  of  the  estate. 
Seven  years  after  the  death  of  the  settlor  the 
first  tenant  in  tail  in  possession  barred  the  entail 
and  acquired  the  fee  simple  subject  to  the  mort- 
gages ;  and  he  then  claimed  the  right  to  stop  the 
accumulations  and  to  receive  the  accumulated 
fund  and  the  whole  future  rents  of  the  estate : — 
Held,  that  the  mortgagees  were  cestuis  que  trust 
under  the  deed  equally  with  the  owner  of  the 
estate,  and  that  he  could  not  stop  the  accumula- 
tions or  receive  the  accumulated  fund  without 
their  consent.  The  doctrine  of  Garrard  v. 
Lauderdale  (2  Kuss.  &  My.  451)  does  not  apply 
to  provisions  for  creditors  which  do  not  come 
into  operation  till  after  the  death  of  the  settlor. 
Fitzgerald's  Settlement,  In  re,  37  Ch.  D.  18  ;  57 
L.  J.,  Ch.  594  ;  57  L.  T.  706  ;  36  W.  R.  385— 
C.A. 

Covenant  to  Fay  Annuity  for  Benefit  of  Widow 
of  Deceased  Partner.]— Articles  of  partnership 
between  two  solicitors  provided  that  the  partner- 
ship should  be  for  the  term  of  ten  years  from  the 
1st  of  May,  1875,  if  both  the  partners  should  so 
long  live.  The  partnership  was  also  made  deter- 
minable by  notice.  There  was  a  further  provision 
that  from  the  determination  of  the  partnership 
the  retiring  partner,  his  executors  or  adminis- 
trators, or  the  executors  or  administrators  of  the 
deceased  partner,  should  be  entitled  to  receive 
out  of  the  net  profits  of  the  partnership  business, 
during  so  much  (if  any)  of  the  term  of  five  years 
from  the  1st  of  May,  1880,  as  should  remain  after 
the  determination  of  the  partnership,  the  yearly 
sum  of  350/.,  and  during  bo  much  (if  any)  of  the 
term  of  five  years  from  the  1st  of  May,  1885,  as 
either  the  retiring  partner,  or  a  widow  of  the 
retiring  or  deceased  partner,  should  be  living, 
the  yearly  sum  of  250/.,  any  sum  which  might 
under  this  provision  for  the  time  being  become 
payable  to  the  executors  or  administrators  of  a 
deceased  partner  to  be  applied  in  such  manner 
as  such  partner  should  by  deed  or  will  direct  for 
the  benefit  of  his  widow  and  children,  and  in 
default  of  such  direction  to  be  paid  to  such 
widow,  if  living,  for  her  own  benefit.  It  was 
further  provided  that  the  annuity  should,  so  far 
ns  legally  might  be,  be  constituted  a  charge  on 
the  net  profits  of  the  business.  One  of  the  part- 
ners  died  in  1883,  leaving  a  widow,  but  without 
having  given  any  direction  as  to  the  application 
of  the  annuity.  By  his  will  he  appointed  his 
widow  his  universal  legatee  and  sole  executrix. 
He  died  insolvent,  and  an  action  was  brought  by 
a  creditor  to  administer  his  estate  :— Held,  that 
the  annuity  did  not  form  part  of  the  testator's 
estate,  but  that  by  the  articles  a  trust  of  it  was 


created  in  favour  of  the  widow,  and  that  she  was 
entitled  to  it  free  from  the  claims  of  the  testa- 
tor's creditors.  Flarell,  In  re,  Murray  v.  FUh 
veil,  25  Ch.  D.  89 ;  53  L.  J.,  Ch.  185 ;  49  L.  T. 
690 ;  32  W.  R.  102— C.  A. 

Money  handed  to  Solicitor  for  Investment— 
Representation  that  Money  advanced  on  Mort- 
gage.]— A  client  left  moneys  for  investment  in 
the  hands  of  his  solicitors.  *  The  solicitors  repre- 
sented that  the  sum  of  11.000/.,  part  of  these 
moneys,  was  invested  on  mortgage  of  freehold 
property  at  A.,  belonging  to  a  firm,  and  the 
client  made  no  further  inquiry.  The  solicitors 
were  in  fact  the  holders  of  a  mortgage  for 
55,000/.  upon  property  X.  at  A.,  belonging  to 
the  firm,  and  they  repaid  themselves  11,000*.  of 
the  55,000/.  with  the  client's  money.  The  firm 
afterwards  bought  property  Y.  at  A-,  and  mort- 
gaged it  in  fee  to  a  bank.  The  solicitors  released 
the  firm  from  the  mortgage  debt  of  55,000/.  on 
property  X.  and  took  from  them  a  mortgage  for 
50,000/.  on  properties  X.  and  Y.,  subsequently, 
by  arrangement  with  the  firm,  purchasing  the 
equity  of  redemption  in  both  properties,  and 
selling  them  for  shares  to  a  limited  company 
into  which  the  firm  was,  through  their  instru- 
mentality, converted.  These  transactions  all 
took  place  without  the  knowledge  of  the  client : 
— Held,  that  the  solicitors  must  be  treated  ta 
having  become  trustees  for  the  client  of  11,000/. 
out  of  the  55,000/.  secured  by  mortgage  on  pro- 
perty X. ;  and  having  improperly,  as  against  the 
client,  given  up  that  mortgage  in  exchange,  the 
client  had  a  right  under  the  circumstances  to 
claim  a  charge  for  11,000/.  and  interest  upon 
property  Y.  (in  which  the  legal  estate  was  out- 
standing) ns  well  as  upon  property  X.  Verne*, 
Ewen*  &  Co.,  In  re,  38  Ch.  D.  402 ;  5G  L.  J.,  Ch. 
12  ;  56  L.  T.  416  ;  35  W.  R.  225— C.  A. 


IL    EIGHTS   AND    LIABILITIES   07 
TBU8TEES. 

1.    INVESTMENTS. 

a.     Mortgages. 

Contributory  Mortgage.] — It  is  a  breach  of 
trust,  in  the  absence  of  express  authority  in  the 
instrument  creating  the  trusts,  where  the  trus- 
tees are  directed  to  invest  in  their  own  names, 
to  invest  trust  moneys  upon  a  contributory 
mortgage.  Webb  v.  Jonae,  39  Ch.  D.  660 ;  67 
L.  J.,  Ch.  671  ;  58  L.  T.  882 ;  36  W.  R.  666- 
Kekewich,  J. 

Trade  Premises— Insufficient  Security— Valia- 
tion.] — Trustees,  having  a  power  to  invest  on 
real  securities,  invested  3,500/.  on  a  mortgage  of 
a  freehold  brickyard  with  buildings,  machinery, 
and  plant  Before  doing  so  they  obtained  a 
report  from  a  competent  surveyor  that  the  pro- 
perty formed  a  good  security  for  the  amount  of 
the  advance.  The  report  did  not  state,  and  the 
trustees  did  not  inquire,  what  value  the  surveyor 
placed  upon  the  property,  nor  how  that  value 
was  arrived  at.  In  fact  the  valuation  was  based 
on  the  brick  business  being  carried  on  as  a  going 
concern,  and  the  land  was  taken  aa  worth  2,000/. 
only.  The  security  having  turned  out  insufficient, 
an  action  was  brought  against  the  trustees  to 


1873 


TRUST    AND    TRUSTEE. 


1874 


have  the  trost  fund  replaced  : — Held,  that  the 
trustees  had  not  acted  with  proper  care,  and 
were  liable  to  make  good  the  loss,  with  interest 
at  four  per  cent,  from  the  last  payment  by  the 
mortgagor : — Held,  also,  that  the  tenant  for  life 
could  not  be  required  to  bring  into  account  inte- 
rest in  excess  of  four  per  cent,  received  under  the 
mortgage  before  default  was  made.  Lcaroyd  v. 
Wkitrlry.  12  App.  Cas.  727  ;  57  L.  J.,  Ch.  390  ; 
:>8  L.  T.  93  ;  3G  W.  U.  721—  H.  L.  (E.). 

A  trustee  advanced  trust  moneys  to  a  brick - 
makinsr  firm  upon  the  security  of  a  lirst  mort- 
gage of  their  premises,  freehold  and  leasehold, 
and  some  of  the  plant.  In  so  doing  he  acted 
upon  the  advice  of  his  solicitor,  and  upon  a 
favourable  report  and  valuntiou  made  by  a 
respectable  firm  of  architects  and  surveyors. 
A  bank  of  good  standing,  moreover,  consented 
to  postpone  a  charge  of  theirs  to  his  mortgage. 
The  mortgagors  failed  three  years  afterwards, 
whereby  their  lease  of  that  part  of  the  property 
upon  which  was  found  most  of  the  clay  and 
shale  necessary  for  the  carrying  on  of  the  busi- 
ness, became  forfeited.  The  remainder  of  the 
property  proved  unsaleable,  and  rapidly  went  to 
rnin.  An  action  was  subsequently  brought  by 
the  cestuis  que  trust  to  make  the  trustee  liable 
for  the  loss  sustained  by  them,  and  it  appeared 
that  the  report  and  valuation  proceeded,  ex  facie, 
in  some  respects  upon  faulty  principles  : — Held, 
nevertheless,  that  the  trustee  had  acted  as  a 
prudent  man  would  have  acted  in  dealing  with 
fiis  own  property,  and  was  therefore  not  liable. 
Pearton,  In  re,  Oxley  v.  Scarth,  51  L.  T.  692— 
Pearson,  J. 

Trade  Premises  and  Personal  Security — Power 
to  lend  on  "Personal"  Security  —  Immunity 
Clause— Law  Agent  acting  for  both  Parties.]— 
Trustees  sold  a  tenement,  the  property  of  the 
trust,  to  one  of  seven  beneficiaries  under  the 
trust  deed,  the  price  according  to  the  terms  of 
the  contract  being  payable  in  May,  1874.  In 
November,  1874,  the  purchaser  being  unable  to 
pay  12,000/.  of  the  price,  was  allowed  to  retain 
it  on  loan.  As  security  for  the  loan,  he  con- 
veyed to  the  trustees  three  houses,  including 
his  purchase  from  the  trust,  upon  each  of  which 
there  were  prior  incumbrances,  to  an  amount 
exceeding  two- thirds  of  the  estimated  value  as 
stated  by  the  borrower.  Besides  these  securities 
the  trustees  held  the  personal  obligation  of  the 
borrower  and  his  father-in-law,  both  of  whom 
were  engaged  in  trade.  Some  of  the  other  bene- 
ficiaries remonstrated  in  1874,  and  again  in  1880 ; 
but  the  money  was  allowed  to  remain  on  these 
securities  until  1884,  when  the  borrower  and  his 
father-in-law  became  bankrupt,  and  about 
10,0002.  was  lost  to  the  trust.  The  trust  deed 
contained  (1),  a  clause  empowering  the  trustees 
to  lend  out  the  proceeds  and  other  funds  of  the 
trust  on  "  such  securities  heritable  or  personal  " 
as  they  might  think  proper ;  and  (2),  an  immu- 
nity clause  declaring  that  the  trustees  should 
not  be  liable  for  "  omissions,  errors,  or  neglect  of 
management."  The  same  law  agent  acted  for 
the  trustees  and  the  borrower  : — Held,  that  the 
trustees  had  not  acted  with  perfect  impartiality 
between  the  beneficiaries,  nor  had  they  brought 
to  the  management  the  same  care  and  diligence 
which  a  man  of  ordinary  prudence  would  have 
exercised  in  his  own  concerns,  that  in  these  cir- 
cumstances neither  the  immunity  clause  nor  the 
authority  to  lend  on  personal  security  were  suffi- 


cient to  protect  them,  and  that  they  were  per- 
sonally liable  to  make  good  the  deficiency  in  the 
trust  funds.  Knox  v.  Mackinnon,  13  App.  Cas. 
753— H.  L.  (8c). 

House  Property — Valuation — One-half  Bule.] 
Trustees,  who  were  empowered  to  invest  on 
mortgage,  advanced  the  sura  of  8,300/.  upon  the 
security  of  certain  leasehold  property  consisting 
of  small  cottages,  some  of  which  were  let  to 
weekly  tenants.  The  mortgagor  having  made 
default,  the  trustees  took  possession  of  the  pro- 
perty, which  would  not  realise  the  sum  advanced, 
the  value  of  the  property  haying  greatly  depre- 
ciated. Evidence  was  adduced  to  show  that,  at 
the  date  of  the  mortgage,  the  sum  advanced  was 
equal  to  about  two-thirds  of  the  value  of  the 
property.  But  there  was  other  evidence  to  the 
effect  that  the  property  was  then  even  less 
valuable  ;  and  that  the  trustees  had  not  obtained 
any  formal  valuation  thereof  : — Held,  that  the 
trustees  had  made  a  most  improvident  invest- 
ment, and  had  disregaided  the  rule  as  to  the 
limit  to  be  observed  when  investing  trust  funds 
upon  the  security  of  house  property  ;  that  they 
ought  to  have  made  a  more  careful  examination 
of  the  security ;  and  that,  under  the  circum- 
stances, they  were  liable  to  replace  the  sum 
advanced.  Olive,  In  re,  Olive  v.  Westerman, 
34  Ch.  D.  70 ;  56  L.  J.,  Ch.  75  ;  55  L.  T.  83  ;  51 
J.  P.  38— Kay,  J. 

Trustees  advanced  trust  money  upon  mortgage 
of  properties  consisting  of  an  hotel  and  stables, 
and  cottages  and  houses  which  were  principally 
let  at  weekly  rents.  Valuers  were  employed, 
and  the  particulars  of  the  several  properties  as 
furnished  by  the  mortgagors  were  submitted  to 
them,  but  the  trustees  did  not  make  inquiries 
for  the  purpose  of  verifying  the  statements 
made  by  the  mortgagors  as  to  the  value  or  nature 
of  the  properties,  or  whether  they  were  all  let, 
or  what  was  the  amount  of  the  outgoings  pay- 
able. In  their  instructions  to  the  valuers,  they 
told  them  that  the  mortgagees  were  trustees,  but 
they  did  not  tell  them,  according  to  the  rule  laid 
down  for  trustees  in  lending  on  the  security  of 
house  property,  that  they  did  not  desire  to  lend 
more  than  one-half  the  value.  Neither  did  they 
call  the  attention  of  the  valuers  to  circumstances 
which  might  affect  the  value.  They  also  omitted 
to  instruct  the  valuers  to  ascertain  whether  the 
particulars  were  correct,  or  what  were  the  out- 
goings or  average  amount  of  repairs.  In  each 
case  the  valuers  gave  it  as  their  opinion  that  a 
sum  more  than  one-half  of  the  value  might  be 
advanced  on  tne  security,  and  such  a  sum  was  in 
each  case  advanced.  Shortly  afterwards  the 
mortgagors  became  insolvent.  The  several  pro- 
perties were  put  up  for  sale,  but  failed  to  realise 
the  amounts  advanced  : — Held,  that  the  invest- 
ments were  improper ;  that  the  trustees  had 
been  guilty  of  negligence  in  not  making  inquiries 
as  to  the  particulars,  and  in  not  giving  proper 
instructions  to  the  valuers,  and  in  acting  upon 
valuations  which  under  the  circumstances  tbey 
ought  not  to  have  acted  upon,  and  they  were 
jointly  and  severally  liable  for  the  money  lost. 
Partington,  In  re,  Partington  v.  Allen,  57  L.  T. 
654 — Stirling,  J. 

In  1873  trustees  advanced  3,800/.  trust  moneys 
to  B.  upon  the  security  of  a  f  reeehold  house  and 
appurtenances  in  the  occupation  of  B.,  and 
carried  on  by  him  as  a  school  in  partnership 
with  8.   By  the  deed  of  partnership,  15.  as  owner. 


1875 


TRUST    AND    TRUSTEE. 


1876 


of  the  freehold,  was  to  receive  300/.  a  year  out  of 
the  profits  of  the  school,  and  in  the  event  of  his 
death,  8.  was  to  take  a  lease  at  the  same  rental. 
The  advance  was  made  in  reliance  upon  the 
report  of  a  surveyor,  instructed  by  one  of  the 
trustees  in  his  capacity  of  solicitor  to  B.,  such 
report  being  made  for  the  purposes  of  a  previous 
mortgage  negotiation  with  other  trustees,  which 
fell  through.  By  this  report  the  property  was 
estimated  at  5,800/.  on  the  assumption  that  a 
responsible  tenant  was  willing  to  take  a  lease  of 
the  property  at  a  rental  of  400/.  a  year.  The 
security  having  proved  insufficient :— Held,  that 
the  trustees  had  not  acted  as  prudent  men  in 
making  such  an  advance  upon  a  valuation  made 
on  behalf  of  the  borrower,  and  must  restore  the 
trust  funds.  Walcott  v.  Lyon*.  54  L.  T.  786  ;  60 
J.  P.. 772— V.-C.  B. 


Sub  -  mortgage  —  Building   Estate.]  — 


Under  a  settlement  S.  was  tenant  for  life  with 
an  ultimate  trust,  in  default  of  children  (which 
happened),  for  her  testamentary  appointees. 
The  trustees,  having  power  to  invest  on  lease- 
hold securities,  invested  the  trust  funds,  with 
S/s  consent,  on  separate  sub-mortgages  of  lease- 
hold houses,  unfinished  and  unlet,  on  a  build- 
ing estate  of  which  the  roads  and  drainage  were 
in  a  defective  condition.  The  investment  was 
made  without  an  independent  or  reliable  valua- 
tion, and  more  than  half  the  value  of  the  house 
was  lent  on  each  sub-mortgage.  S.  died,  having 
by  will  disposed  of  the  trust  funds,  and  appointed 
executors.  The  executors,  with  the  sanction  of 
the  chief  clerk  in  an  action  establishing  S/s 
testamentary  appointment,  had  the  sub-mort- 
gages transferred  to  them  by  the  trustees,  and 
subsequently,  finding  them  an  insufficient  se- 
curity, brought  an  action  against  the  trustees  to 
make  them  personally  liable  for  the  deficiency : 
— Held,  that,  although  the  sub-mortgages  were 
not  improper  investments  in  point  of  form,  the 
trustees  having  invested  the  trust  funds  on  in- 
sufficient security  of  a  speculative  character,  and 
without  proper  precautions,  must  make  good  the 
loss  ;  and  that  the  executors,  having  taken  the 
transfers  in  ignorance  of  the  circumstances 
attending  the  investment,  were  not  bound  by 
adoption  or  acquiescence.  Smet  hurst  v.  Hatting*, 
30  Ch.  D.  490 ;  56  L.  J.,  Ch.  173  ;  62  L.  T.  567  : 
33  W.  R.  496— V.-C.  B. 

Valuation  by  Mortgagors  Surveyor.]— 
Trustees  empowered  to  invest  on  mortgage  lent 
under  the  advice  of  their  solicitors  a  sum  of 
5,000/.  upon  mortgage  of  a  freehold  house  and 
grounds  at  Liverpool,  valued  to  them  at  from 
7,000/.  to  8,000/.  The  trustees  did  not  exercise 
their  own  judgment  as  to  the  choice  of  a  valuer, 
but  accepted  the  suggestion  of  their  solicitors, 
that  a  London  surveyor  who  had  introduced  the 
security  to  them,  and  was  in  fact  the  agent  of 
the  mortgagor  with  a  pecuniary  interest  in  the 
completion  of  the  mortgage,  should  value  the 
property  for  the  trustees,  and  they  acted  upon 
the  report  of  this  valuer,  which  was  of  an 
inflated  character.  The  mortgagor  afterwards 
became  bankrupt,  and  the  property  would  not 
realise  the  sum  advanced  :  —  Held,  that  the 
trustees  were  jointly  and  severally  liable  to 
replace  the  sum  advanced,  with  interest  at  4  per 
cent,  from  the  date  of  the  loan.  Fry  v.  Tapson, 
28  Ch.  D.  268  ;  54  L.  J.,  Ch.  224  ;  51  L.  T.  326  ; 
33  W.  B.  113— Kay,  J. 


Introduction  of  Valuer  to  Mortgagor.]— Trus- 
tees ought  not  to  introduce  the  valuer,  who  is 
valuing  property  with  a  view  to  a  mortgage  by  the 
trustees,  to  the  mortgagor,  or  the  mortgagor's 
agent,  for  the  purpose  of  negotiating  the  amount 
of  the  fee  for  the  valuation.  Partington,  Is  re, 
Partington  v.  Allen,  supra. 


b.    In  other  C 

"Irish  Land"— Liverpool  Corporation  Stock] 

Where  a  testator  gave  all  his  personal  estate  to 
executors  to  be  sold,  and  directed  them  out  of 
the  proceeds  to  buy  land  in  Ireland,  and  in  the 
meantime  the  executors  had  invested  part  of  the 
proceeds  in  Liverpool  Corporation  stock ;  on  an 
originating  summons,  asking  for  directions  at  to 
the  investments,  and  for  an  order  permitting  the 
applicant  to  delay  or  postpone  making  any  in- 
vestment in  Irish  land : — Held,  that  the  Lifer- 
pool  Corporation  stock  was  not  an  investment 
authorised  by  the  joint  operation  of  a.  21  of  the 
Settled  Land  Act,  1882,  and  s.  17  of  the  Local 
Authorities  Loans  Act,  1875.    Further,  that  it 
was  imprudent  for  the  trustees  to  invest  money 
in  Irish  land,  and  it  was  their  doty  to  retain  it 
until  such  time  as  it  was  prudent  to  carry  out 
the  directions  of  the  testator,  and  that  the  court 
had  jurisdiction  to  postpone    such  investment 
under  s.  33  of  the  Settled  Land    Act,  1882. 
Maberly,  In  re,  Maberly  v.  Maberly,  33  Ch.  455 ; 
66  L.  J.,  Ch.  54  ;  65  L.  T.  164  ;  34  W.  B.  771- 
V.-C.  B. 

"Beal  Securities"— Long  Leasehold!.]  —A 
power  to  invest  in  "  real  securities "  does  not 
authorise  trustees  to  invest  the  trust  funds  upon 
long  terms  of  years  created  in  real  estate  for  the 
purpose  of  raising  portions.  Leigh  v.  Leigh, 
56  L.  J.,  Ch.  125  ;  55  L.  T.  634  ;  35  W.  B.  121— 
Stirling,  J. 

Consols— national  Debt  Conversion.]— Trus- 
tees of  a  will  containing  directions  to  invest  in 
consols,  but  no  direction  to  change  or  vary  the 
investment,  may,  under  the  National  Debt  (Goo- 
version)  Act,  1888,  sell  original  stock  and  invest 
the  proceeds  in  authorised  securities.  Tuchetf* 
Trust*,  In  re,  57  L.  J.,  Ch.  760 ;  58  L.  T.  719; 
36  W.  R.  542— Chitty,  J. 

Bank  Shares — Foreign  and  Colonial  Beads.  1 
— A  testator  directed  that  his  trustees  should 
invest  the  moneys  coming  to  their  hands  in 
respect  of  his  estate  in  their  names,  or  under 
their  control,  in  such  mode  or  modes  of  invest- 
ment as  they  in  their  uncontrolled  dis- 
cretion should  think  fit.  Before  the  com- 
mencement of  an  action  to  administer  the 
testator's  estate,  the  trustees  (who  were  also 
executors)  invested  moneys  forming  part  of  it  in 
the  purchase  of  bonds  of  a  foreign  government, 
bonds  of  a  colonial  railway  company,  and  shares 
of  a  bank  on  which  there  was  a  further  liability. 
The  chief  clerk,  in  taking  the  accounts  of  the 
testa  tor's  estate,  disallowed  the  trustees  the  sums 
which  they  had  expended  in  the  purchase  of 
these  bonds  and  shares.  The  shares  in  the  bank 
had  been  previously  sold  at  a  profit : — Held,  that 
though  the  investments  in  question  ought  not  to 
be  retained  by  the  trustees,  yet,  as  they  had  acted 
bona  fide,  and  no  loss  had  resulted  to  the  trust 
estate,  they  ought  not  to  be  disallowed  the  sums 


1877 


TRUST    AND    TRUSTEE. 


187* 


which  they  had  laid  out  in  making  the  invest- 
ments. Brawn,  In  re,  Brown  v.  Brown,  29 
Ch.  D.  889  ;  54  L.  J.,  Ch.  1134  ;  62  L.  T.  853 ; 
33  W.  R.  692— -Pearson,  J. 

Altered  Conditions. ] — Where  fully  paid-up 

shares  in  a  banking  company  were  bequeathed  to 
trustees,  with  power  to  retain  the  investment, 
and  the  shares  after  the  testator's  death  were 
altered  in  amount  and  became  liable  to  calls  : — 
Held,  that  by  reason  of  the  changes  that  had 
taken  place,  the  shares  were  no  longer  in  the 
same  state  of  investment  as  at  the  testator's 
death,  but  were  in  a  Btate  of  investment  unau- 
thorised by  the  will,  and  that  the  trustees  must 
convert  them.  Morris,  In  re,  Bucknlll  v.  Morris, 
54  L.  J.,  Cb.  388  ;  52  L.  T.  462  ;  33  W.  R.  445— 
Pearson,  J. 


2.    RIGHT    TO    INDEMNITY. 

Proceedings  to  Recover  Property  not  lost  by 

Trustees.] — See  Tudball  v.  Medlicott,  post,  col. 
1891. 

By  Cestui  Que  Trust— Shares — Action  before 
Call.] — Certain  moneys  belonging  to  A.  were  in- 
vested in  shares  in  a  banking  company  in  the 
joint  names  of  A.  and  B.,  the  ultimate  trust 
being  for  the  estate  of  A.,  who  predeceased  B. 
The  company  went  into  liquidation  and  calls 
would  be  made  upon  the  shareholders,  on  the  list 
of  whom  the  executor  of  B.  would  be  put : — 
Held,  that  the  executor  of  B.  was  entitled  to  be 
indemnified  by  the  estate  of  A.,  and  might 
bring  an  action  for  and  obtain  a  declaration  of 
indemnity  before  he  was  placed  on  the  list  and 
before  any  call  was  made  on  him.  Fraser  v. 
Murdoch  (6  App.  Cas.  855)  discussed.  Hvghcs- 
Hallett  \. Indian  Mammoth  Gold  Mines  Company 
(22  Ch.  D.  561)  distinguished.  Hobbs  v.  Wayet, 
36  Ch.  D.  256  ;  57  L.  T.  225 ;  36  W.  R.  73— 
Kekewich,  J. 

Within  what  Limits.]— The  right  of  a  trustee 
to  be  indemnified  out  of  his  trust  fund  for 
money  expended  by  him  in  its  preservation,  is 
strictly  limited  to  the  trust  fund.  Leslie,  In  re 
(23  Ch.  D.  552)  explained.  Winchclsea's  (Earl} 
Policy  Trusts,  In  re,  39  Ch.  D.  168 ;  58  L.  J., 
Ch.  20  ;  59  L.  T.  167  ;  37  W.  R.  77— North,  J. 

The  right  of  a  trustee  to  be  indemnified  out 
of  the  trust  estate  covers  not  only  payments 
actually  made  by  him,  but  also  his  liability  to 
pay  ;  and  by  virtue  of  this  right  of  indemnity  a 
trustee  is  entitled  to  resort  in  the  first  instance 
to  the  trust  estate  for  necessary  expenses.  Blun- 
dell,  In  re,  Blundell  v.  BlundeU,  40  Ch.  D.  370  ; 
57  L.  J.,  Ch.  730  ;  58  L.  T.  933 ;  36  W.  R.  779— 
Stirling,  J. 

Meet  of— Broach  of  Trust.] — See  Beans  v. 
Benyon,  post,  col.  1886. 


3.   RIGHT    OF    CONTRIBUTION    FROM 
CO-TRUSTEE. 

In  what  Cases.]— HM  C,  and  T.,  trustees,  in- 
vested a  sum  on  mortgage.  The  security  turned 
out  to  be  insufficient,  and  a  loss  was  sus- 
tained.   In  a  suit  instituted  by  the  beneficiaries 


it  was  declared  that  T.,  C.  and  her  husband,  and 
the  estate  of  H.  were  jointly  liable  to  make 
this  loss  good,  and  numerous  orders  were  made- 
directing  C.  and  her  husband  and  T.  to  pay  cer«- 
tain  sums  into  court,  and  eventually  the  plain- 
tiffs, who  were  the  trustees  of  a  settlement 
which  comprised  certain  portions  of  H.'s  estate,, 
paid  the  whole  sum  into  court.  The  plaintifb. 
then  sued  T.  for  his  one-third  contribution,  and 
obtained  judgment,  but  by  reason  of  his  insol- 
vency recovered  nothing.  They  then  sued  Mr., 
and  Mrs.  0.  for  half  contribution.  There  waa 
an  arrangement  between  the  trustees  that  Mr., 
and  Mrs.  C,  who  were  resident  abroad,  should 
not  be  troubled  about  the  trusts,  and,  as  a  fact,, 
they  did  nothing  therein  : — Held,  that  this  waa. 
no  bar  to  contribution,  for  where  one  trustee  acta, 
honestly  though  erroneously,  the  other  trustee 
who  by  doing  nothing  neglects  his  duty  more 
than  the  acting  trustee,  is  not  entitled  to  indem- 
nity. Bacon  v.  Camphausen,  58  L.  T.  851 — 
Stirling,  J. 

Trustees  were  held  liable  to  replace  sums  im- 
properly invested  by  them.  One  of  the  trustees^ 
A.,  was  a  solicitor,  authorised  to  make  profes- 
sional charges  for  work  done  for  the  trust.  The 
other  was  the  widow  of  the  testator,  and  the 
tenant  for  life  under  his  will  of  the  trust  funds. 
A.  took  the  more  active  part  in  making  the  in«- 
vestments,  and  was  paid  costs  for  his  professional 
work,  charging  scale  fees  both  for  negotiating- 
the  loans,  deducing  the  title,  and  preparing  and 
completing  the  mortgages ;  and  he  did  not,  in* 
the  opinion  of  the  court,  communicate  what  he- 
did  to  his  co-trustee  in  such  a  way  as  to  enable 
her  to  exercise  her  judgment  upon  the  invest- 
ments, and  make  them  her  acts  as  well  as  hia 
own  : — Held,  that  A.  bad  undertaken  to  find 
proper  investments,  and  that  the  widow  had 
joined  in  advancing  the  fund  on  the  faith  that 
the  investments  were  proper  ones  which  had 
been  looked  into  by  A.,  as  solicitor ;  that  she- 
had  been  misled  by  him,  and  he  had  been  guilty 
of  negligence  in  his  duty  as  a  solicitor ;  and 
that,  as  between  A.  and  the  widow,  A.  waa. 
primarily  liable  for  the  breach  of  trust.  Parting* 
ton,  In  re,  Partington  v.  Allen,  67  L.  T.  654-—. 
Stirling,  J. 

Directors  —  Breach  of  Trust  —  Liability  of: 
Executor.]  —  The  directors  of  a  company  ad- 
vanced moneys  of  the  company  upon  an  un- 
authorised security,  and  two  sums  of  600/.  and 
400/.  so  lent  were  lost.  The  600/.  formed  part 
of  a  loan  of  800/.,  and  the  400/.  formed  part  of 
a  loan  of  1,000/.  which  was  granted  by  the 
board  of  directors,  and  of  which  400/.  was. 
actually  advanced  and  repaid,  and  a  second 400/*. 
was  advanced  and  not  repaid.  In  an  action  by 
the  company  against  one  of  the  directors  who* 
had  taken  part  in  granting  the  loans,  he  was. 
held  liable  to  pay  the  two  sums  of  600/.  and  400/,. 
to  the  company,  and,  having  paid  them,  he  sued 
three  of  his  co-directors  for  contribution.  One 
of  the  defendants  was  not  present  at  the  meeting 
at  which  the  loan  of  800/.  was  granted,  and  at 
which  a  cheque  for  the  800/.  was  drawn,  but  he- 
was  present  at  a  subsequent  meeting  at  which 
the  minutes  of  the  former  meeting  were  read 
and  confirmed.  The  800/.  had  been  already  paid 
to  the  borrower : — Held,  that,  whether  the  de*- 
fendant  would  or  would  not  have  been  liable  to> 
the  company,  there  was  no  equity  to  compel  him 
to  contribute  to  the  plaintiff  in  respect  of  th& 


1879 


TRUST    AND    TRUSTEE. 


1880 


«OOZ.  BarnAUl  v.  Edward*,  31  Ch.  D.  100;  55 
L.  J.,  Ch.  81  ;  53  L.  T.  949  ;  34  W.  R.  96- Pear- 
son, J. 

The  same  defendant  was  present  at  the  meet, 
ing  at  which  the  loan  of  1,000/.  was  granted, 
^when  he  protested  strongly  against  it.  He  was 
present  at  a  subsequent  meeting  at  which  the 
minutes  of  the  first  meeting  were  read  and  con- 
firmed, and  he  then  signed  a  cheque  which  was 
*irawn  for  the  first  400/.: — Held,  that  by  signing 
the  cheque  he  had  adopted  the  whole  loan  of 
1,0001.,  and  that  he  was  therefore  liable  to  con- 
tribute in  respect  of  the  second  400/.  which  was 
lost.    lb. 

The  third  defendant  died  after  the  commence- 
ment of  the  action,  and  his  administrator  was 
then  made  a  defendant : — Held,  that  the  liability 
to  contribute  survived  against  the  defendant's 
estate.    lb. 


4.    DISCRETION    OF    TRUSTEES. 

Trust  for  Benefit  of  Children— Authority  to 
Say  to  Parent.]— A  trust  for  the  benefit  of  the 
children  of  A.  with  an  authority  to  pay  the  trust 
funds  over  to  their  parent  or  guardian,  does  not 
empower  the  trustees  to  hand  over  the  trust 
funds  to  A.,  without  exercising  any  discretion  in 
respect  of  his  children's  interest.  Gainsborough 
(Earl)  v.  Wateombe  Terra  Cotta  Co.,  54  L.  J., 
Ch.  991  ;  53  L.  T.  116— North,  J. 

Trust  for  Maintenance  of  Children — Ability  of 
lather  to  Maintain.]— J.  B.  M.  having  absolute 

rower  to  dispose  of  property,  devised  it  to  her 
usband  J.  M.  for  life,  in  trust  that  he  should 
"'apply  the  same,  or  as  much  thereof  as  he 
should  from  time  to  time  think  proper,  for  or 
towards  the  maintenance  and  education,  or 
otherwise,  for  the  benefit  of  my  son  D.  M.,  and 
shall  and  do  invest  the  unapplied  income,  <fcc,  in 
such  stocks,  &c,  as  the  said  J.  M.  in  his  absolute 
and  uncontrolled  discretion  shall  think  fit,  with 
power  to  him  at  any  time,  and  from  time  to 
time,  to  use  and  apply  all  or  any  part  of  such 
accumulated  income  for  the  benefit  of  my  said 
son,  or  to  pay  the  same  over  to  him,  as  the  said 
J.  M.  may  from  time  to  time  think  proper:"  and 
after  the  death  of  J.  M.  she  devised  the  property, 
and  all  accumulations  which  should  not  have 
been  applied  or  paid  over  in  trust  for  his  son  ' 
D.  M.  absolutely ;  and  if  he  should  die  in  the  ; 
lifetime  of  his  father,  J.  M.,  to  J.  M.  absolutely.  > 
After  the  testatrix's  death,  J.  M.  received  the 
rents  and  maintained  his  son  in  a  manner  suit- 
able to  his  rank  until  his  own  death.  Indepen- 
dently of  the  testatrix's  property  he  was  during 
his  life  of  ability  to  maintain  his  son.  J.  M. 
having  died,  his  administratrix  in  an  action 
brought  by  1).  M.  claimed  credit  for  a  consider- 
able sum  for  the  maintenance  and  education,  &c, 
of  the  minor  by  J.  M.,  during  several  years.  It 
was  sought,  on  behalf  of  the  plaintiff,  to  have 
this  credit  disallowed  on  the  ground  that  the 
father,  having  been  of  sufficient  ability  to  main- 
tain and  educate  his  child,  was  not  entitled  to 
apply  any  of  the  trust  funds  for  that  purpose  : 
Held,  that  J.  M.  was  under  the  testatrix's  will 
entitled  (notwithstanding  his  own  ability)  to 
apply  so  much  of  the  income  of  the  trust  funds 
as  he  should  from  time  to  time  think  proper  for 
and  towards  the  maintenance  and  education, 
or  otherwise  for  the  benefit,  of  his  son  D.  M. 


Malcomton.   v.  MaleomtoH,   17  L.  R.,  Ir.  69— 
C.A. 


Child  Assigning  Interest ]— A  testator 


directed  his  trustees,  after  the  death  of  his  wife, 
to  apply  the  income  of  his  estate  u  in  and  towards 
the  maintenance,  education,  and  advancement  of 
my  children  in  such  manner  as  they  shall  deem 
most  expedient  until  the  youngest  of  my  said 
children  attains  the  age  of  twenty-one  years," 
and  on  the  happening  of  that  event  he  directed 
them  to  divide  his  estate  equally  among  all  his 
children  then  living.      The  testator  left  four 
children,  two  of  whom  at  the  death  of  the  widow 
in  1884  were  of  age,  and  the  youngest  was  in  his 
seventh  year.    After  the  decease  of  the  widow 
the  tiustees  paid  each  of  the  adult  children  one- 
fourth  of  the  income,  and  applied  the  other  two* 
fourths  for  the  benefit  of  the  minors  equally  till 
188H.  when  J.  8.  C,  the  eldest,  son,  made  an  ab- 
solute assignment  for  value  of  all  his  interest 
under  the  testator's  will  to   H.     The  trustees 
declining  to  pay  one-fourth  of  the  income  to  H. 
he  took  out  a  summons  to  have  the  construction 
of  the  will  determined  : — Held,  that  no  child  of 
the  testator  was  entitled,  prior  to  the  attainment 
of  twenty-one  by  the  youngest  of  the  testator's 
children,  to  the  payment  of  any  part  of  the 
income,  and  that  the  trustees  were  entitled  to 
apply  the  income  for  the  maintenance,  educa- 
tion, or  advancement  of  the  children,  including 
J.  S.  C,  in  their  absolute   discretion ;  that  H. 
was  entitled  to  no  interest  in  the  income  except 
such  moneys  or  property,  if  any,  as  might  be 
paid  or  delivered  or  appropriated  for  payment 
or  delivery  by  the  trustees  to  J.  8.  C,  and  that 
the  trustees  could  not  pay  or  deliver  to  J.  S.  C. 
money  or  goods  forming  part  of  the  income  or 
purchased  out  of  the  income,    for  that   such 
moneys  and  goods  so  paid  or  delivered,  or  appro- 
priated to  be  paid  or  delivered,  would  pass  by 
the    assignment.     Coleman,    In    re,  Henry  v. 
Strong,  39  Ch.  D.  443  ;  68  L.  J..  Ch.  226  ;  60  L. 
T.  127— C.  A. 


To  Advance  Money— Payment  into  Court— 
Effeot  upon  Discretion.] — A  testator  by  his  will 
devised  and  bequeathed  his  residuary  estate  to 
trustees,  and  gave  thereout  a  legacy  of  10,0001. 
to  each  of  his  five  daughters,  and  directed  that 
the  legacies  should  be  held  upon  certain  trusts 
for  the  benefit  of  his  daughters,  their  husbands 
and  children  respectively,  and  he  provided  that, 
on  the  request  of  any  of  his  daughters,  it  should 
be  lawful  for  the  trustees,  if  they  should  think 
fit,  to  advance  to  the  husband  or  husbands  of 
any  one  or  more  of  his  daughters,  part  of  her 
legacy  (not  exceeding  5,000/.)  for  the  purpose  of 
setting  up  the  husbands  in  business,  or  otherwise 
promoting  the  advancement  or  benefit  of  his  said 
daughter  and  her  husband  and  family.  The 
trustees  paid  the  legacy  of  one  of  the  daughters 
into  court  under  the  Trustee  Relief  Act.  Appli- 
cation was  now  made  for  the  advance  of  a  sum 
of  3,00u7.  to  the  husband  of  the  daughter  whose 
share  had  been  so  paid  in,  for  the  purpose  of 
furnishing  him  with  a  professional  residence. 
The  surviving  trustee  of  the  will  consented  to 
the  advance  being  made  : — Held,  that  the  trus- 
tees, by  paying  into  court,  had  terminated  their 
discretion,  and  that  the  discretion  being  a  per- 
sonal one  could  not  be  exercised  by  the  court, 
and  the  advance  could  not  therefore  be  made  ta 


1881 


TRUST    AND    TRUSTEE. 


1882 


the  husband.      XettlefoliVs  Trusts,  In   re,  59 
L.  T.  315— North,  J. 
SseAihburnhams  Trust ;  In  re,  post,  col.  1901. 

Application  of  Income  in  Payment  of  Interest 
Ml  Mortgage.] — See  Hotchkys,  In  re,  post,  col. 
1894. 

Power  to  Beleaae.] — A  marriage  settlement 
executed  in  1843  contained  a  proviso  that  if  the 
husband  should  survive  the  wife  it  should  be 
lawful  for  the  trustees  at  their  option  to  with- 
hold the  income  from  him,  and  to  appropriate  it 
as  they  might  think  most  proper  for  the  benefit 
of  him  or  his  children.  After  the  death  of  the 
survivor  of  the  husband  and  wife,  the  property 
was  to  go  as  the  wife  should  by  deed  or  will 
appoint: — Held,  that  the  power,  being  in  the 
nature  of  a  trust,  could  not  be  released.  Saul 
v.  Pattinson,  55  L.  J.,  Ch.  831 ;  54  L.  T.  670  ;  34 
W.  R.  561— Pearson,  J. 

Jurisdiction  of  Court  to  Interfere  —  Sale  of 
Leaseholds.] — A  testator  gave  leaseholds,  some 
of  which  were   held  on  short  terms,  to  two 
trustees,  one  of  whom  was  his  wife,  upon  trust 
for  his  wife  for  life,  and  after  her  death  upon 
trust  that  the  whole  should  be  sold,  and  the 
proceeds  divided  between  four  persons.    And  he 
authorised  his  trustees,  provided  that  they  should 
deem  it  advisable,  to  sell  his  short  leaseholds 
and  invest  the  proceeds  and  allow  his  wife  to 
receive  the  income  during  her  life.    The  lease- 
holds were  in  a  bad  state  of  repair  at  the  death 
of  the  testator ;  the  widow  kept  them  up  in  the 
same  state  of  repair,  but  declined  to  ao  more 
than  this.     The  remaindermen  applied  for  an 
order  to  oblige  the  tenant  for  life  to  maintain 
the  leaseholds  in  such  a  state  of  repair  as  to 
satisfy  the  covenants  in  the  leases,  so  as  to  avoid 
a  forfeiture,  or  else  to  concur  in  selling  the  short 
leaseholds  : — Held,  that  the  court  had  no  juris- 
diction to  interfere  with  the  discretion  of  the 
widow,  who  had  then  become  surviving  trustee, 
and  to  order  her  to  exercise  her  power  of  selling 
the  leaseholds.    Tempest  v.  Lord   Camay s  (21 
Ch.  D.  576,  n.)  distinguished.     Courtier,  In  rr, 
Coles  v.  Courtier,  34  Ch.  D.  136 ;  56  L.  J.,  Ch. 
350 ;  55  L.  T.  574  ;  35  W.  R.  85  ;  61  J.  P.  117  — 
C.A. 

Trust  for  Sale.] — Where  real  estate  is 

devised  to  trustees  in  trust  for  sale,  with  a  dis- 
cretionary power  to  postpone  the  sale,  the  court 
will  not  interfere  with  a  bona  fide  exercise  of 
their  discretion  as  to  the  time  and  mode  of  sale. 
Blake,  In  re,  Jones  v.  Blake,  29  Ch.  D.  913— 
C.A. 

Maintenance   of  Infant.]  —  A   female 

infant  was  entitled  contingently  on  her  attaining 
twenty-one,  or  marrying,  to  a  fund  of  which  her 
deceased  mother  had  been  tenant  for  life.  The 
trustees  had  power  to  "  apply  all  or  any  part"  of 
the  income  (about  538/.  a  year)  for  her  mainten- 
ance and  education.  On  a  summons  in  the 
matter  of  the  infant,  Bacon,  V.-C,  held  that  he 
had  jurisdiction  to  control  the  discretion  of  the 
trustees  as  to  the  quantum  to  be  allowed,  and 
made  an  order  on  them  to  pay  400/.  a  year  to 
the  father  for  her  maintenance  and  education. 
The  trustees  appealed,  and  in  answer  to  an 
inquiry  by  the  court,  stated  their  intention  to 
allow  250/.  to  the  father  for  her  maintenance 


and  education: — Held,  that  the  order  of  the 
Vice-Chancellor  was  irregular,  and  must  be  dis- 
charged, the  court  having  no  jurisdiction  on  a 
summons  in  the  matter  of  an  infant  to  make- 
any  order  for  payment  by  trustees  or  other 
persons.  Loftlumse,  In  re,  29  Ch.  D.  921 ;  54 
L.  J.,  Ch.,  1087  ;  53  L.  T.  174 ;  33  W.  R.  668-^ 
C.A. 

Whether  the  court  could  control  the  discretion 
of  the  trustees  as  to  the  amount  to  be  allowed 
for  maintenance  and  education,  so  long  as  such 
discretion  was  honestly  exercised.    Quaere.    IK 


5.   POWERS  OF  SALE. 

Jurisdiction  of  Court  to  Interfere  with  Dis- 
cretion.]— See  cases,  supra. 

Death  of  Parties  to  Concur.]— Real  property 
was  vested  in  trustees  upon  trust  at  the  request 
of  A.  and  B.  and  the  survivor,  and  after  their 
death  at  discretion,  to  sell  and  hold  the  proceeds, 
upon  trust  for  A.  and  B.  successively  for  life,  and 
then  for  the  children  equally.  After  the  deaths 
of  A.  and  B.  there  were  three  adult  children  : — «■ 
Held,  that  the  trust  for  sale  was  not  spent,  but 
was  exerciseable  by  the  trustees  without  the  con- 
currence of  the  beneficiaries.  Tweed  ie  and  Afiln*% 
In  re,  27  Ch.  D.  315  ;  54  L.  J.,  Ch.  71 ;  33  W.  R. 
133 — Pearson,  J. 

Power  to  increase  Capital  employed  in  Busi- 
ness—Mortgage to  secure  Business  Debts.] — A 

testator,  who  died  in  1866,  devised  and  be- 
queathed all  his  real  and  personal  estate  upon 
trust  for  sale  and  conversion,  and  empowered  hia 
trustees  to  carry  on  his  business  for  such  time  aa 
they  should  see  fit,  and  to  employ  in  the  businesa 
all  the  capital  which  might  be  invested  therein 
at  the  time  of  his  decease,  and  the  profits  thereof , 
and  to  increase  or  abridge  the  business  and  his. 
capital  therein,  and  generally  to  transact  all 
matters  and  concerns  respecting  the  business,, 
and  to  do  all  acts  relative  thereto,  in  the  same 
manner  as  if  they  were  absolutely  entitled  to  the 
same.    The  personal  esta'e  of  the  testator  com- 

Erised  nearly  the  whole  of  the  capital  of  the 
usiness.  His  real  estate  consisted  of  the  manu- 
factory  and  buildings  upon  which  the  businesa 
was  carried  on,  and  for  which  he  received  a  rent. 
The  trustees  carried  on  the  business  after  the 
testator's  death  in  partnership  with  other  per* 
sons  :  but  the  firm  ultimately  became  bankrupt.. 
In  1869  one  of  the  trustees  advanced  to  his  co- 
trustees 2,000/.,  and  the  title-deeds  relating  to 
the  manufactory  and  premises  were  deposited 
with  him  for  securing  the  repayment  of  the 
advance  with  interest.  The  money  was  applied 
for  the  purposes  of  the  business.  This  trans- 
action had  not  been  disclosed.  In  January, 
1882,  an  action  was  commenced  for  the  adminis- 
tration of  the  testator's  estate.  In  pursuance  of 
an  order  made  in  that  action,  the  business  was 
sold  in  1883.  In  September,  1882,  certain  of  the 
beneficiaries  mortgaged  all  their  respective  shares, 
under  the  will  to  secure  the  repayment  to  a 
banking  company  of  4,600/.  The  banking  com- 
pany applied  by  petition  for  leave  to  intervene 
in  the  action,  ana  obtained  payment  of  their 
debt.  The  question  raised  was,  whether  the 
trustees  had  power  to  mako  an  equitable  mort- 
gage of  real  estate,  which  did  not  form  part  of 


1888 


TRUST    AND    TRUSTEE. 


1884 


the  assets  employed  in  the  business,  for  the  par-* 
{roses  of  the  business : — Held,  that  power  to 
'employ  other  assets  in  the  business  was  conferred 
upon  the  trustees  by  the  authority  to  increase 
the  capital  of  the  business ;  that,  as-  they  could 
have  sold  the  real  estate  and  used  the  proceeds 
in  the  business,  they  were  not  wrong  in  using 
the  property  itself  to  assist  in  carrying  on  the 
business ;  and  that  the  mortgage  of  1869  had 
priority  over  the  mortgage  of  1882.  Held  also, 
that,  as  the  banking  company  were  not  creditors 
■of  the  testator,  they  had  taken  the  most  con- 
venient course  in  applying  to  intervene  by  peti- 
tion. Dimmock,  In  re,  Dimnu>ck  v.  Dim  mock, 
-52  L.  T.  494— Kay,  J. 

Extinguishment  —  Disentailing  Deed.]  —  An 
estate  was  devised  to  uses  to  secure  certain 
^annuities,  and  subject  thereto  in  strict  settle- 
ment, with  power  to  the  trustees  to  sell  at  the 
request  of  the  tenant  for  life  under  the  will. 
The  estate  was  disentailed  and  resettled  (the 
existing  life  estate  being  postponed  to  certain 
^charges,  and  the  powers  of  the  will  being 
expressed  to  be  kept  alive) : — Held,  that  the 
trustees  for  sale  and  the  tenant  for  life  could 
make  a  good  title.  Wright  and  Marshall.  In 
re,  28  Ch.  D.  93  ;  54  L.  J.,  Ch.  60 ;  51  L.  T.  781; 
33  W.  R.  804— Pearson,  J. 

Depreciatory  Conditions  of  Sale.]  — *  When 
trustees  sell  property  with  depreciatory  condi- 
tions, which  render  the  sale  liable  to  be  im- 
peached by  the  cestuis  que  trustent,  the  trustees 
<cannot  maintain  an  action  for  specific  jierform- 
ance  against  the  purchasers.  Ihiun  v.  Flood,  28 
Ch.  D.  586  ;  54  L.  J..  Ch.  370  ;  52  L.  T.  699  ;  33 
W.  R.  315— C.  A. 

Trustees  for  sale  sold  by  auction  certain  lease- 
holds. The  conditions  of  sale  provided  that 
■every  recital  in  any  abstracted  document  should 
A>e  conclusive  evidence  of  the  fact  stated ;  and 
that  the  lots  were  sold  u  subject  to  the  existing 
tenancies,  restrictive  covenants,  and  all  ease- 
ments and  quit-rents  (if  any)  affecting  the  same," 
«nd  that  the  purchasers  were  to  indemnify  the 
vendors  against  the  breach  of  any  restrictive 
covenants  contained  in  the  abstracted  muni- 
ments of  title.  The  sale  was  made  also  subject 
to  certain  general  conditions  restricting  the  oc- 
cupation of  the  land.  The  abstracted  documents 
contained  no  other  restrictive  covenants  than 
those  comprised  in  the  general  conditions ;  and 
the  Vendors  stated  that  they  knew  of  no  other 
restrictive  covenants,  and  of  no  existing  tenan- 
cies, easements,  or  quit-rents  affecting  the  pro- 
perty : — Held,  that  the  condition  as  to  existing 
tenancies  and  restrictive  covenants  was  depre- 
ciatory, and  that  the  objection  was  a  good  de* 
fence  to  an  action  for  specific  performance  by 
the  trustees  against  a  purchaser.    lb. 

Trustees  for  sale  sold  by  auction  certain  lease- 
hold properties.  One  of  the  conditions  of  sale 
stipulated  that  no  objection  should  be  made  if 
any  lease  was  an  underlease,  or  that  the  pre- 
mises were  held  on  the  same  lease  with  other 
property,  or  that  the  same  were  liable  to  superior 
rents  or  covenants.  A  purchaser  objected  to 
this  condition  as  depreciatory : — Held,  that  the 
solicitor  who  prepared  the  conditions  should  have 
ascertained  whether  the  leases  were  underleases 
■or  not ;  that  there  should  have  been  a  state- 
ment of  fact  as  to  each  lot,  and  not,  as  this  was, 
a  statement  which  might  apply  to  any  of  the 


lots  ;  and  that  this  was  a  depreciatory  condition, 
and  ought  not  to  have  been  inserted  by  the 
trustees.  -.  Rayner's  Trustees  and  Oreenawa^  1% 
re,  53  L.  T.  495— Kay,  J. 

Trustees 'for  sale  under  a  will  put  up  for  sale 
by  auction  certain  lands  in  numerous  small  lots, 
with  conditions  providing  that  the  title  should 
commence  with  the  conveyance  to  the  testator 
ten  years  before  : — Semble,  that  this  condition, 
having  regard  to  the  number  and  smaUness  of 
the  lots,  was  not  unreasonable.  Dunn  v.  Flood, 
28  Ch,  D.  586  ;  54  L.  J.,  Ch.  370 ;  52  L.  T.  699 ; 
33  W.  R.  315— C.  A. 

Implied  Power  —  Discretionary  Power  to 
invest  Estate.]  —  A  testator  devised  and  be- 
queathed the  residue  of  his  estate  and  effects  to 
trustees  upon  certain  trusts ;  and  he  declared 
that  it  should  be  lawful  for  his  trustees,  at  their 
absolute  and  uncontrolled  discretion,  to  con- 
tinue the  whole  or  any  part  of  his  estate  in  the 
firm  in  which  he  was  a  partner,  or  "  to  invest, 
re-invest,  and  lend  any  part "  of  his  estate  to  the 
firm  on  such  terms  as  the  said  trustee  should,  at 
such  discretion  as  aforesaid,  think  proper:— 
Held,  that  there  was  no  implied  power  to  sell 
the  real  estate.  Hollo  way.  In  re,  Hollotoay  v. 
Hollwcay,  60  L.  T.  46 ;  37  W.  R.  77— North,  J. 

Free  from  Portions.]— A  tenant  for  life  and  a 
tenant  in  remainder  having  power  under  a  settle- 
ment to  appoint  to  uses,  by  a  deed-poll  indorsed 
on  the  settlement,  appointed  that  the  settlement 
should  be  read  and  construed  as  if  the  words 
"  with  any  gross  sum  or  sums  (other  than  por- 
tions)" had  been  inserted  after  the  word  "charg- 
ing." The  intention  was  to  enable  the  trustees 
of  the  settlement  to  sell  any  part  of  the  land 
free  from  portions  charged  on  the  estate  by  the 
tenant  for  life  : — Held,  that  the  tenants  for  life 
and  in  remainder  having  power  to  appoint  to 
new  uses,  the  deed-poll  operated  as  a  due  ex- 
ercise of  such  power,  and  that  therefore  the 
trustees  of  the  settlement  had  power  to  sell  the 
lands,  the  subject  of  a  certain  contract,  free  from 
portions.  McAuliffe  and  Balfour,  In  re,  50 
L.  T.  353— V.-C.  B. 

Executor  of  Surviving  Truatee--<3ouveYaueuif 
Act,  a  30.] — A  testator  appointed  A.  and  B. 
executors  and  trustees  of  her  will,  and  devised 
certain  specified  properties,  and  all  other  estates 
or  interests  belonging  to  her  in  Ireland,  to  and  to 
the  use  of  A.  and  B.,  upon  trust  for  sale  of  such  part 
or  parts  thereof  as  might  in  their  judgment  be 
necessary  for  the  discharge  of  debts  and  legacies, 
and  as  to  the  remainder  thereof  upon  trust  that 
they,  or  the  survivors  of  them,  should  receive  the 
rents,  and  pay  them  to  A.  for  life,  and  after  his 
death,  sell  the  same  and  divide  and  pay  the  pro- 
ceeds to  or  among  her  nieces.  A.  died  before  the 
testatrix,  B.  survived  her,  and  died  without  ex- 
ercising either  trust  for  sale  : — Held,  that  B.'s 
executors  could  not  give  a  good  title,  notwith- 
standing the  Conveyancing  and  Law  of  Property 
Act,  1881,  s.  30.  Ingleby  and  Norwich  Inion 
Insurance  Company,  In  re,  13  L.  B.,  Ir.  32fc— 
M.R. 

Beeeipt  of  Purchase-Money— Power  to  dele- 
gate.]— On  the  sale  of  land  by  trustees  with 
power  of  sale,  the  purchasers  made  a  requisition 
that  either  the  vendors  should  attend  personally 
to  receive  the  purchase-money,  or  the  purchase- 


1885 


TRUST    AND   TRUSTEE. 


1886 


money  should  be  paid  into  a  bank  to  the  joint 
account  of  the  vendors  under  a  written  direction, 
to  be  signed  by  them  and  given  to  the  purchasers. 
The  vendors  refused  to  comply  with  the  requisi- 
tion, alleging '  that  it  was  inconvenient  so  to  do, 
and  proposed  that  one  of  them  should  attend 
and  receive  the  purchase-money  under  a  written 
direction  to  that  effect,  to  be  signed  by  them  all : 
—Held,  that  the  purchasers  were  entitled  to 
insist  upon  their  requisition.  Flower  v.  Metro* 
poHta*  Board  of  Work*,  27  Ch.  D.  592 ;  53 
L.  J.,  Ch.  955 ;  51  L.  T.  257;  32  W.  R.  1011— 
Kay,  J. 


€.  DEALINGS  BETWEEN   TRUSTEE  AND 
CESTUI  QUE  TRUST. 

Mortgage  from  Cestui  que  tmst— Priority 
ever  Prior  Incumbrance.]  —  A  trustee  who 
takes,  without  notice  of  a  prior  equitable  incum- 
brance, a  mortgage  from  his  cestui  que  trust 
upon  the  property  in  which  he  holds  the  legal 
estate,  is  entitled  to  the  ad  vantage  given  by  that 
legal  estate,  and  by  virtue  thereof  obtains  pri- 
ority for  his  mortgage  over  the  prior  incumbrance. 
Dictum  of  James,  V.-C,  in  Phippt  v.  Lovcgrove 
(16  L.  R.,  Eq.  80)  approved  and  followed.  il>io- 
man  v.  Newman*  28  Ch.  D.  674  ;  54  L.  J.,  Ch. 
598  ;  52  L.  T.  422  ;  33  W.  R.  505— North,  J. 

Sale— Setting  aside — Inadequate  Price— Con- 
etalment  of  Value.]— Part  of  the  estate  of 
a  testator  consisted  of  two-thirds  shares  of 
the  money  to  arise  from  the  sale  of  certain 
messuages  and  hereditaments  in  Sydney, 
which  during  the  life  of  the  testator  had,  by 
deed  in  1846,  been  vested  in  trustees  there 
upon  trust  for  sale,  with  power  to  suspend 
the  sale  and  to  manage  and  to  lease  the  property. 
The  testator,  at  the  time  of  his  death  in  1868, 
was  supposed  by  the  trustees  of  his  will  in  Eng- 
land, and  the  beneficiaries,  to  be  seised  in  fee 
simple  of  the  two-thirds  shares.  As  the  property 
was  expected  to  increase  in  value,  all  the  bene- 
ficiaries agreed  that  the  sale  should  be  post- 
poned, and  under  the  mistaken  impression  as  to 
the  nature  of  the  testator's  interest  they,  by  deed 
iu  1869,  requested  the  trustees  of  the  will  to 
postpone  the  sale.  In  1870  the  sum  of  10,000/. 
was  offered  for  the  entire  property,  but  was  re- 
fused. In  1875  one  of  the  beneficiaries  sold  his 
one-fifth  share  of  the  testator's  two-thirds  for 
1,000/.  In  March,  1880,  A.,  another  of  the  bene- 
ficiaries, being  ill,  and  in  pecuniary  difficulties, 
sold  his  one-fifth  share  to  S.,  one  of  the  trustees 
of  the  will,  for  900/.  Shortly  afterwards,  both 
A.  and  S.  died.  In  September,  1881,  the  entire 
property  was  sold  for  30,000/.,  and  consequently 
A.'s  share  therein  proved  to  be  worth  over  4,000/. 
eighteen  months  after  the  sale  of  it  to  S.  for 
900/.  In  an  action  by  A.'s  wife  against  L.,  the 
executor  of  S.,  to  set  aside  the  sale  of  A.'s  share 
to  S.,  she  did  not  aver  that  A.  had  been  guilty 
of  fraud  in  the  transaction,  or  that  A.  was  not 
fully  aware  of  what  he  was  doing  at  the  time  of 
the  sale  ;  but  she  prayed  for  relief  on  the  ground 
that  S.  stood  in  the  position  of  trustee  to  A., 
who  at  the  time  of  the  sale  was  in  very  embar- 
rassed circumstances,  as  S.  knew ;  that  the  price 
was  considerably  below  the  real  value  of  the 
fihare,  as  S.  also  knew ;  and  that  A.  had  no 
independent  advice  in  the  transaction  : — Held, 


that  as  the  purchaser  and  vendor  stood  in  the 
positions  of  trustee  and  cestui  que  trust,  although 
the  trustee  was  not  the  donee  of  a  power  of  sale, 
his  duty  was  to  see  that  the  property  realised  its 
full  value ;  and  that  the  vendor  being  in  embar- 
rassed circumstances  to  the  knowledge  of  the 
trustee,  and  the  price  given  by  the  trustee  for 
the  property  being  greatly  inadequate,  the  relief 
asked  for  must  be  granted.  Held,  also,  that  L. 
must  pay  the  costs  of  the  action,  and  was  not 
entitled  to  deduct  them  from  the  share  sold 
to  8.  Ploutright  v.  Lambert,  52  L.  T.  646— 
Field,  J. 


Purchase   by    Executor  who  has   not 


Proved.] — A  sale  is  not  to  be  avoided  merely 
because,  when  entered  upon,  the  purchaser  has 
the  power  to  become  trustee  of  the  property 
purchased,  as  for  instance  by  proving  the  will 
which  relates  thereto,  though  in  point  of  fact  he 
never  does  become  such.  Such  a  purchaser  is 
under  no  disability,  and  in  order  to  avoid  such 
sale  it  must  be  shown  that  he  ia  fact  used  his 
power  in  such  a  way  as  to  render  it  inequitable 
that  the  sale  should  be  upheld.  Clark  v.  Clark, 
9  App.  Cas.  788 ;  53  L.  J.,  P.  C.  99— P.  C. 

Sale  to  Stranger — Re-purchase  by  Trus- 
tee.]— The  fact  that  a  trustee  has  sold  trust 
property  in  the  hope  of  being  able  to  re-purchase 
it  for  himself  at  a  future  time  is  not  of  itself  a 
sufficient  ground  for  setting  aside  the  sale,  where 
the  price  was  not  inadequate  or  the  sale  im- 
proper in  other  respects.  In  a  case  of  suspicion 
of  improper  dealings  with  trust  property,  when 
the  parties  suspected  and  who  might  have  been 
able  to  give  a  satisfactory  explanation,  are  all 
dead,  if  a  reasonable  explanation  of  the  evi- 
dence, consistent  with  the  honesty  of  the 
suspected  transaction,  can  be  found,  the  court 
will  adopt  it  rather  than  draw  inferences 
from  the  evidence  which  are  unfavourable  to 
the  good  faith  of  those  who  are  no  longer  able 
to  explain  their  acts  and  written  words.  That 
a  transaction  was  legal  and  honest  is  a  presump- 
tion of  law  which  is  strengthened  by  lapse 
of  time.  Pottlethwaite,  In  re,  Postlethwaite 
v.  Rickman,  60  L.  T.  614  ;  37  W.  R.  200  ;  53 
J.  P.  357—  C.  A.  Reversing  59  L.  T.  58 ;  36 
W.  R.  808— Kekewich,  J. 


7.  BREACH  OF  TRUST. 

Indemnity— Concurrence  in  Breach  of  Trust] 
— A  trustee  who  distributes  a  trust  fund  among 
strangers  at  the  request  of  one  of  the  bene- 
ficiaries, from  whom  he  takes  a  covenant  of 
indemnity,  cannot  afterwards  recover  under  the 
covenant  for  the  loss  of  a  beneficial  interest,  to 
which  he  has  subsequently  become  entitled,  in 
the  fund.  The  effect  of  active  concurrence  by  a 
person  in  a  breach  of  trust  upon  a  beneficial 
interest  to  which  he  subsequently  becomes 
entitled  in  the  trust  fund  considered.  Evans  v. 
Bfinyon,  37  Ch.  D.  329  ;  58  L.  T.  700— C.  A. 

A.  was  sole  trustee  of  a  fund  held  in  trust 
for  B.  for  life,  then  for  Mrs.  B.  for  life,  then 
if  she  died  in  B.'s  lifetime,  in  trust  as  Bhe  should 
appoint  by  will,  and  in  default  for  her  next  of 
kin.  A.,  at  the  request  of  B.  and  his  wife,  raised 
!  5,000/.  out  of  the  fund,  paid  1,000/.  to  each  of 
i  the  four  adult  daughters  of  C,  and  1,000/.  to  C. 


1887 


TRUST    AND    TRUSTEE. 


1888 


in  trust  for  his  infant  daughter.  B.  covenanted 
with  A.  to  indemnify  him  against  "all  conse- 
quences" of  this  distribution  of  the  5,000/. 
Mrs.  B.  died  in  B.'s  lifetime  intestate,  and  her 
next  of  kin  were  A.  and  C.  On  the  death  of  B., 
A.'s  representative  sued  B.'s  representative  to 
compel  him  to  replace  the  5,000/. :  —Held,  that 
the  object  of  the  covenant  was  only  to  indemnify 
A.  from  demands  against  him,  as  trustee,  for 
breach  of  trust,  and  that  it  ought  not  to  be  con- 
strued as  an  undertaking  to  make  good  to  him 
any  loss  which  he,  as  a  beneficiary,  might  sustain 
by  the  diminution  of  the  trust  fund  ;  and  that 
since  A.,  as  next  of  kin,  could  not  have  made  a 
claim  against  himself  as  trustee  in  respect  of 
the  breach  of  trust,  there  was  no  claim  against 
A.'s  estate  in  respect  of  which  his  representative 
could  claim  indemnity  from  B.'s  estate  so  far  as 
regarded  A.'s  interest  as  one  of  the  next  of  kin  ; 
thatC,  having  actively  concurred  in  the  distri- 
bution, could  not  have  made  any  claim  against 
A.  or  his  estate  in  respect  of  it,  even  if  he  had 
not  known,  as  the  court  was  satisfied  he  did 
know,  that  he  had  a  possible  interest  in  the  trust 
fund,  and  that  the  distribution  of  it  was  a  breach 
of  trust ;  and,  therefore,  that  as  regarded  C.'s 
interest  as  one  of  the  next  of  kin,  there  was  no 
claim  against  B.'s  estate  under  the  covenant.  lb. 
Where  a  cestui  que  trust,  who  is  party  to  a 
breach  of  trust,  is  a  married  woman,  and  the 
trustees  claim  a  right  of  retainer  against  her  life 
interest  in  the  settled  funds  to  indemnify  thorn 
against  their  breach  of  trust,  they  are  bound  to 
show  that  she  acted  for  herself  in  the  breach  of 
trust,  and  was  fully  informed  of  the  state  of 
the  case.  Sawyer  v.  Sawyer,  28  Ch.  D.  695  ; 
64  L.  J.,  Ch.  444  ;  52  L.  T.  292  ;  33  W.  R.  403— 
C.A. 

Relation  between  Co-trustees.  ]~  The  relation 
between  co-trustees  in  regard  to  the  trust  funds 
in  their  charge  cannot  be  considered  as  that  of 
creditor  and  debtor.  Taylor,  Ex  parte,  Gold- 
iniid,  In  re%  18  Q.  B.  D.  295  ;  56  L.  J.,  Q.  B. 
195  ;  35  W.  R.  148— C.  A. 

Sight  of  Action  by  Trustee.] — A  trust  fund, 
with  the  concurrence  of  the  trustees  and  in 
breach  of  the  trust,  was  invested  in  erecting 
three  houses  on  ground  held  under  a  lease  to  S.. 
the  tenant  for  life  of  the  fund.  One  of  the 
trustees  brought  an  action  against  S.  and  the 
other  trustee  for  a  restoration  of  the  fund  by 
sale  of  the  houses.  The  court  ordered  S.  to 
bring  the  trust  fund  into  court,  or,  in  default, 
a  sale  of  the  houses,  holding  that  a  trustee  may 
follow  property  in  which  a  trust  fund  has  been 
wrongly  invested,  though  he  has  actively  con- 
curred in  the  breach  of  trust.  The  costs  of  an 
action  for  that  purpose  were  decreed  to  the  plain- 
tiff trustee  on  the  facts  of  the  case.  Carson  v. 
Sloane,  13  L.  R.,  Ir.  139— M.  R. 

Fraud  of  one  Trustee — Purchaser  for  Value 
without  notice.] — C,  trustee  with  the  plaintiff 
of  a  will,  and  also  trustee  with  the  defendant  of  a 
settlement,  having  misappropriated  a  portion  of 
the  settlement  fund,  applied  an  equal  portion  of 
the  will  fund  in  the  purchase  of  stock,  which  he 
transferred  into  the  names  of  himself  and  the 
defendant.  The  plaintiff  and  defendant  were 
both  innocent  of  C.'s  fraud,  and  the  defendant 
and  the  ccstuis  que  trusts  under  the  settlement 


had  no  notice  that  the  stock  was  purchased  with 
part  of  the  will  fund.  C.  died  insolvent  In  an 
action  by  the  plaintiff  to  compel  the  defendant 
to  transfer  the  stock  to  him : — Held,  that  the 
defendant  having  by  accepting  the  transfer  of 
the  stock  given  up  his  right  to  sue  C.  for  hi* 
debt  to  the  trust,  was  entitled  to  be  treated  as  a 
purchaser  for  value  without  notice,  and  conse- 
quently to  retain  the  stock  as  part  of  the  settle- 
ment fund.  Taylor  v.  Blakelock,  32  Ch.  D.  560 : 
56  L.  J..  Ch.  390  ;  55  L.  T.  8— C.  A.  Affirming 
34  W.  R.  175— V.-O.  B. 

Character  in  which  Plaintiff  Sues—  Acqui- 
escence.]—  Under  a  settlement  certain  foods 
were  held  by  trustee*  upon  trust  for  the  issue  of 
L.    8.  in  such  manner  as  she  should  by  will 
appoint.    L.  S.,  by  her  will,  appointed  the  funds 
to  trustees — as  to  two-fifths,  upon  trust  to  pay 
the  income  to  her  sou  until  he  should  attain  the 
age  of  forty  years,  and  when  and  as  soon  as  he 
should  attain  that  age  she  directed  that  the 
trust  premises  should  be  held  in  trust  for  her 
said  son,  his  executors  and  administrators,  and 
provided  that  if  her  said  son  should  sell,  assign, 
or   otherwise   part    with    his   said  share,  tbe 
appointment  in  his  favour  should  be  void,  and 
the  said  share  should  be  held  upon  the  trusts 
declared  of  the  remaining  three-fifth  parts  for 
the  benefit  of  her  daughter.    The  son  died  under 
1  forty  without  having  forfeited  his  interest   X^ 
|  the  surviving  trustee  of  the  will  of  L.  S.,  and 
who  was  also  co-trustee  with  L.  of  the  original 
I  settlement,  got  possession  of  the  two-fifths  and 
misappropriated  it,  and  the  beneficiaries  under 
the  will  of  the  son  obtained  judgment  for  tbe 
amount   against    B.,   who   was   the  surviving 
executor  and  trustee  of  the  son's  will,  on  the 
ground  of  his  negligence  and  wilful  default  in 
not  getting  in  the  trust  fand.    B.  having  died, 
his  executor  brought  this  action  against  L.  and 
N.,  seeking  a  declaration  that  they  were  jointly 
and  severally  liable  to  replace  the  amount  so- 
found  due  from  B.    N.  had  become  bankrupt  :— 
Held,  that  L.  was  not  liable,  on  the  ground  that 
the  plaintiff  must  be  treated  as  representing  B. : 
and  it  appearing  upon  the  evidence  that  B.  had,, 
in  1872,  treated  N.  as  solely  accountable  to  him 
for  the  two-fifths,  and  had  done  nothing  to 
recover  the  fund,  the  plaintiff  was  barred  by  tbe 
delay  and  acquiescence  of  B.     Seotney  v.  hmer, 
81  Ch.  D.  380  ;  55  L.  J.,  Ch.  443  ;  54  L.  T.  1W ; 
34  W.  R.  407— C.  A. 

Bankrupt  Trustee  entitled  to  Equitable  Inte- 
rest.]— A  testator  devised  real  estate  to  his  nine 
children,  nominatim  as  tenants  in  common,, 
giving  a  power  to  three  of  them  to  sell  the  whole 
to  avoid  the  difficulties  of  partition.  W.,  one  of 
the  three,  conducted  certain  sales  under  the 
power,  retained  more  than  his  share  of  the 
purchase-moneys,  and  went  into  liquidation. 
Further  sales  were  effected,  and  out  of  the  pro- 
ceeds a  further  sum  was  paid  to  W.'g  trustees  in 
liquidation  in  respect  of,  and  in  excess  of,  bis 
share  : — Held,  that  all  purchase-moneys  received 
by  the  trustees  were  impressed  with  a  trust  under 
the  will,  and  that  W.'s  equitable  interest  therein 
was  liable  to  recoup  the  other  beneficiaries. 
Brown,  In  re,  DUon  v.  Drown,  32  Ch.  D.  597  ; 
55  L.  J.,  Ch.  656  ;  64  L.  T.  789— Kay,  J. 

In  other  Oases.] — See  various  sub-head*. 


1889 


TRUST    AND    TRUSTEE. 


1890 


8.    LIABILITY  FOR  ACTS  OF  AGENTS. 

Ordinary  Scope  of  Basinets.] — The  rale  that 
trustees,  acting  according  to  the  ordinary  coarse 
of  business,  and  employing  agents  as  prudent 
men  of  business  would  do  on  their  own  behalf, 
are  not  liable  for  the  default  of  the  agent  so 
employed,  is  subject  to  the  limitation  that  the 
agent  mast  not  be  employed  out  of  the  ordinary 
scope  of  his  business.  try  v.  Tapson,  28  Ch.  D. 
568  ;  54  L.  J.,  Ch.  224  ;  51  L.  T.  326  ;  33  W.  R. 
113— Kay,  J. 

Stockbroker.] — A  trustee  investing  trust 

funds  is  justified  in  employing  a  broker  to  pro- 
care  securities  authorised  by  the  trust  and  in 
paving  the  purchase-money  to  the  broker,  if  he 
follows  the  usual  and  regular  course  of  business 
adopted  by  ordinary  prudent  men  in  making 
such  investments.  Speight  v.  Gaunt,  9  App.  Cas. 
1 ;  53  L.  J.,  Ch.  419  ;  50  L.  T.  330 ;  32  W.  R. 
435 ;  48  J.  P.  84— H.  L.  (E.). 

A  broker  employed  by  a  trustee  to  buy 
securities  of  municipal  corporations  authorised 
by  the  trust,  gave  the  trustee  a  bought  note 
which  purported  to  be  subject  to  the  rules  of  the 
London  Stock  Exchange,  and  obtained  the 
parchase-money  from  the  trustee  upon  the 
representation  that  it  was  payable  the  next  day, 
which  was  the  next  account  day  on  the  London 
Exchange.  The  broker  never  procured  the 
securities,  but  appropriated  the  money  to  his 
own  use  and  finally  became  insolvent.  Some  of 
the  securities  were  procurable  only  from  the 
corporations  direct,  and  were  not  bought  and 
sold  in  the  market,  and  there  was  evidence  that 
the  form  of  the  bought  note  would  have  sug- 
gested to  some  experts  that  the  loans  were  to  be 
direct  to  the  corporations ;  but  there  was  nothing 
calculated  to  excite  suspicion  in  the  mind  of  the 
trustee  or  of  an  ordinary  prudent  man  of  busi- 
ness ;  and  such  payment  to  a  broker  was  in 
accordance  with  the  usual  course  of  business  in 
purchases  on  the  London  Exchange : — Held 
(Lord  Fitzgerald)  doubting,  that  the  trustee  was 
not  liable  to  the  cestuis  que  trustent  for  the  loss 
of  the  trust  funds.    lb. 

Semble,  by  the  Earl  of  Selborne,  L.  C,  that  if 
the  broker  had  represented  to  the  trustee  that 
the  contracts  were  with  the  corporations  for 
loans  direct  to  them  from  the  trustee,  he  would 
not  have  been  justified  in  paying  the  money  to 
the  broker,  for  which  in  such  a  case  there  would 
have  been  no  moral  necessity  or  sufficient  prac- 
tical reason,    lb. 

A  trustee  must,  in  order  to  escape  liability  for 
a  loss  of  the  trust  property,  show  that  in 
connexion  with  the  transaction  in  which  the 
loss  occurred  he  acted  not  only  in  the  ordinary 
mode  of  business,  but  also  in  the  mode  in  which 
a  prudent  man  of  business  would  act  in  such  a 
transaction.  Bullock  v.  Bullock,  56  L.  J.,  Ch. 
221  ;  55  L.  T.  703— Kekewich,  J. 

B.,  one  of  the  trustees  of  a  marriage  settlement, 
was  employed  by  his  acting  co-trustee  to  make 
a  change  of  investment  of  part  of  the  trust 
property ;  but  although  he  sent  to  his  acting  co- 
trustee contract-notes  for  the  new  investments, 
the  latter  were  never  completed,  and  the  moneys 
were  misappropriated  by  a  third  party.  B.'s  co- 
trustees made  no  inquiries  at  all  for  the  securities 
to  which  the  contract-notes  related  for  over 
eighteen  months,  and  made  no  efficient  inquiries 
until  three  years  after  the  transaction  had  taken 


place ;  and  when  the  loss  was  discovered  B.  had 
shortly  before  become  bankrupt,  having  up  to 
within  a  few  months  of  that  time  been  in  good 
credit :— Held,  that  B.'s  co-trustees  were  liable 
for  the  loss,  having  been  guilty  of  negligence  in 
not  prosecuting  early  inquiries,  which  would 
have  resulted  in  information  upon  which  they 
might  have  recovered  the  trust  moneys  from  B. 
Speight  v.  Gaunt  (9  App.  Cas.  1)  distinguished. 
lb. 

Money  allowed  to  remain  in  Solicitor's  Hands.] 
— Trustees  are  not  justified  in  allowing  trust 
money  to  get  into  the  hands  of  a  solicitor,  or  in 
allowing  him  to  hold  the  securities  upon  which 
the  trust  fund  is  invested  ;  and  the  law  is  the 
same  where  the  estate  is  being  administered  by 
the  court.  Dcwar,  In  re,  Dewar  v.  Brooke,  54 
L.  J.,  Ch.  830 ;  52  L.  T.  489 ;  33  W.  R.  497— 
Kay,  J. 

Trustees  of  an  estate  which  was  being  ad- 
ministered by  the  court  employed  a  solicitor  to 
manage  the  trust  estate,  and  allowed  him  to 
receive  the  trust  moneys  for  the  purpose  of  in- 
vestment. The  solicitor  represented  that  he 
bad  duly  made  investments,  and  he  rendered 
periodical  accounts  to  the  trustees  purporting  to 
show  such  investments,  and  paid  the  interest 
upon  them.  He  had,  in  fact,  never  made  any 
investments,  but  had  misappropriated  the  money, 
and  ultimately  he  filed  a  liquidation  petition,  and 
a  part  of  the  trust  fund  was  thus  lost : — Held, 
that  the  trustees  were  liable  to  make  good  the 
loss  to  the  trust  estate,    lb. 

Agent   employed   to   Collect   Money— Onus 
probandi.] — A  common  order  having  been  made 
for  the  administration  of  a  testator's  estate,  the 
district  registrar  by  his  certificate  found  the 
outstanding  personal  estate  to  consist  in  part  of 
book  debts  amounting  nominally  to  291 /.,  as  to 
113/.  part  of  which  he  certified  that  it  repre- 
sented a  portion  of  book  debts  which  the  execu- 
tors had  employed  H.  to  collect,  and  for  which 
H.  had  not  accounted,  and  had  claimed  to  deduct 
55/.  for  remuneration,  but  that  251.  was  enough. 
The  certificate  went  on  to  say  that  H.  had  gone 
into  liquidation,  and  that  no  part  of  the  113/. 
was  likely  to  be  recovered.    No  application  was 
made  to  vary  this  certificate.    It  appeared  that 
H.  had  collected  in  all  168/.,  had  paid  to  the 
executors  in  April,  May,  and  June,  1880,  sums 
amounting    in    all  to  55/.,  and  had  gone  on 
collecting  without  making  any  further  payment 
to  the  executors  till  July,  1881,  when  a  receiver 
was  appointed  in  the  action,  but  it  did  not 
appear  when  he  became  insolvent,  nor  at  what 
times  the  moneys  received  came  to  his  hands  : — 
Held,  that  where  an  executor  or  trustee  employs 
an  agent  to  collect  money  under  circumstances 
which  make  such  employment  proper,  and  the 
money  collected  is  lost  by  the  agent's  insolvency, 
the  burden  of  proof  is  not  on  the  executor  to 
shew  that  the  loss  was  not  attributable  to  his 
own  default,  but  on  the  persons  seeking  to  charge 
him  to  prove  that  it  was.    Brier,  In  re,  Brier 
v.  Evtion,  26  Ch.  D.  238  j  51  L.  T.  133— C.  A. 


9.  GETTING  IN  TKUST  FUNDS. 

Duty  to  enforce  Payment.]— It  is  the  duty  of 
trustees  to  press  for  the  payment  of  the  trust 
funds  to  them,  and  if  they  are  not  paid  within  a 

3  P 


1891 


TRUST    AND    TRUSTEE. 


1892 


reasonable  time,  to  enforce  payment  by  legal 
proceedings.  And  it  is  especially  their  duty  to 
take  action  promptly  if  by  the  terms  of  the 
trust  payment  has  been  deferred  to  the  expira- 
tion of  a  specified  time.  The  only  excuse  for  not 
taking  action  to  enforce  payment  is  a  well- 
founded  belief  on  the  part  of  the  trustees  that 
such  action  would  be  fruitless  ;  and  the  burden 
of  proving  the  grounds  of  such  belief  is  on  the 
trustees.  Broaden,  In  re,  Billing  v.  Brogden, 
38  Ch.  D.  546  ;  69  L.  T.  660 ;  37  W.  R.  84— 
C.  A. 


Property  not  Lost  by  Trustees — Indem- 


nity.]— Trustees  are  not  bound  at  their  own 
expense  to  take  proceedings  for  the  recovery  of 
trust  property  not  lost  by  their  own  default. 
Tudball  v.  Medlieott,  69  L.  T.  370 ;  36  W.  R. 
886  ;  62  J.  P.  669— Kekewich,  J. 

A  testator  by  his  will  left  certain  freehold 
property  to  trustees  in  trust  for  certain  benefi- 
ciaries ;  a  short  time  after  the  testator's  death  a 
mortgage  of  the  devised  property  was  discovered, 
but  was  suspected  by  the  trustees  to  be  a  forgery. 
They  had  not  funds  with  which  to  institute  pro- 
ceedings : — Held,  that  they  were  not  bound  to 
take  proceedings  at  their  own  expense  to  recover 
the  trust  estate.    lb. 

Loss  by  Non-conversion — Form  of  Order.] — 
Where  there  has  been  a  loss  to  the  trust  estate 
by  reason  of  a  non-conversion  of  a  security 
forming  part  of  the  trust  property,  but  the 
trustees  allege  that  they  could  at  no  time  have 
realised  the  full  value  of  the  security,  they  will 
be  allowed  the  benefit  of  an  inquiry  to  show 
the  actual  amount  which  would  have  been 
realised  by  a  conversion  at  the  proper  time, 
and  their  liability  will  be  limited  accordingly. 
Gainsborough  (Earl)  v.  Wdtcombe  Terra  Cotta 
Company,  54  L.  J.,  Ch.  991  ;  53  L.  T.  116— 
North,  J. 

Deposit  at  Bank— Belay— Failure  of  Bank.] — 
A  will  appointing  trustees  only  authorised  them 
to  invest  in  parliamentary  stocks  or  funds,  or  in 
freehold,  copyhold,  or  leasehold  hereditaments. 
The  will  contained  a  provision  that  no  trustee 
should  be  answerable  for  any  banker,  broker,  or 
other  person  in  whose  hands  any  moneys  might 
be  deposited  for  safe  custody  or  otherwise.  The 
trustees  left  the  sum  of  500/.  on  deposit  at  a 
bank,  by  way  of  interim  investment,  whilst  they 
looked  for  a  mortgage,  for  fourteen  months, 
when  the  bank  failed.  Upon  the  question 
whether  the  trustees  were  liable  for  the  loss 
thereby  occasioned  :  —Held,  that  fourteen  months 
was  too  long  for  the  trustees  to  leave  trust 
monev  on  deposit  at  a  bank  ;  that  if  after  six 
months  they  could  not  get  a  mortgage,  they 
ought  to  have  invested  the  money  in  Consols ; 
that,  from  the  moment  they  left  it  too  long  on 
deposit,  they  became  responsible  for  the  conse- 
quences of  their  default,  and  were  therefore 
liable  for  the  sum  lost  to  the  trust  estate. 
Cann  v.  Cann,  51  L.  T.  770 ;  33  W.  R.  40— 
Kay,  J. 


10.  MANAGEMENT  OP  TRUST— CARRYING 
ON   BUSINESS. 

Solioitor   Trustee  —  Bight   to   Costs.]  —  See 

SOLIOITOB,  VI.,  2,  d. 


Trust  to  receive  Bents  and  manage  Estate— 
Salary.] — Where  estates  were  devised  to  a  near 
relative  and  a  family  solicitor  until  B.  attained 
the  age  of  twenty-eight  years,  upon  trust  to> 
receive  the  rents  and  manage  the  estate,  and  the 
will  empowered  any  trustee  being  a  solicitor  to 
charge  and  be  paid  for  all  business  done  by  him 
as  a  solicitor  in  respect  of  such  estate,  and  a 
legacy  of  1007.  was  given  to  each  trustee,  and 
the  trustees  managed  the  estates  consisting  of 
2,000  acres  partly  unlet  for  fifteen  years,  paying 
themselves  a  salary  of  100/.  a  year  each  for  the 
trouble  of  such  management,  amounting  in  all 
to  3,0O0Z. ;  on  an  originating  summons  on  behalf 
of  the  tenant  for  life  and  the  infant  remainder- 
man : — Held,  that  such  payments  of  2002.  a  year 
were  unauthorised  by  the  will;   the  trustee* 
might  at  any  time  have  applied  to  the  court,  bat 
they  neglected  to  do  so  ;  that  it  was  not  a  case 
to  follow  the  course  adopted  in  Marshall  t. 
Holloway  (2  Sw.  432),  where  an  inquiry  was 
directed  as  to  whether  any  and  what  sum  should 
be  allowed  to  the  trustees  for  their  trouble.  The 
salary  was  disallowed,  and  an  order  made  for 
payment  into  court,  without  interest,  within  six 
months.      Beding field,  In    re,  Bedingfidi  v. 
D'Eye,  57  L.  T.  332— Kay,  J.  See  alto  Freeman* 
Settlement  Tnurts,  In  re,  post,  col.  1918. 

Carrying  on  Business — Advances— Bight  of 
Creditor  against  Trust  Funds.] — By  a  marriage 
settlement,  a  lunatic  asylum  was  assigned  to 
trustees  on  trust,  at  the  request  of  the  husband 
and  wife,  to  sell  and  stand  possessed  of  the  pro- 
ceeds of  the  sale  for  the  benefit  of  the  wife  and 
children ;  but  the  trustees  were  to  allow  the 
husband  to  carry  on  the  business  of  the  asylum 
without  paying  any  rent,  but  PfjiBg  certain 
premiums  and  other  moneys.  The  husband 
became  bankrupt,  and  thereupon  the  surviving 
trustee  of  the  settlement  entered  into  possession 
of  the  asylum  and  carried  on  the  business  until 
the  asylum  was  sold  for  a  large  sum  of  money. 
A  tradesman  had  supplied  the  trustee  with  goods 
for  the  use  of  the  asylum,  and  brought  an  action 
claiming  payment  out  of  the  trust  funds  of  the 
settlement: — Held,  that,  whether  the  trustee 
would  or  would  not  have  been  entitled  to  be 
indemnified  for  moneys  advanced  by  him  for  the 
purposes  of  the  asylum,  the  tradesman  had  no 
right  to  recover  his  debt  out  of  the  trust  funds 
no  special  part  of  the  estate  having  been  appro- 
priated for  carrying  on  the  asylum.  Garland. 
Ex  parte  (10  Ves.  110)  considered.  StneiUnd 
v.  Symons,  26  Ch.  D.  245  ;  53  L.  J.,  Ch.  582 ;  51 
L.  T.  406  ;  32  W.  R.  889— C.  A. 


Increase  of  Capital— Mortgage.]  —  See 


Dimmock,  In  re,  ante,  col.  1883. 


11.    PAYMENTS  TO  TRUSTEES. 

Income — Form  of  Order.] — It  is  not  desirable 
as  a  general  rule  to  order  income  to  be  paid  to 
trustees,  "  or  either  of  them,"  according  to  the 
form  in  Seton  on  Decrees,  p.  88,  s.  4,  No,  1 
Clinton,  In  re  (8  W.  R.  492).  not  followed.  Can. 
In  re,  Carr  v.  Carr,  36  W.  it.  688— Keketficb,  J. 

To  Co-trustee— Maintenance  of  Infant— Vomea- 
ing  Items  of  Expenditure.]— H.  and  C.  were 
trustees  and  executors  of  a  will,  and  guardians 
of   the  testator's   daughters.      The   daughters 


1893 


TRUST    AND    TRUSTEE. 


1894 


during  their  infancy  were  maintained  by  C,  and 
H.  allowed  him  to  receive  the  income  for  that 
purpose.    After  they  attained  majority  j udgment 
was  given  for  administration  of  the  testator's 
estate,   in   which   the   usual  accounts  of   the 
personal  estate  were  directed,  and  an  inquiry 
how  and  by  whom  each  of  the  daughters  was 
maintained  during  infancy,  and  what  was  proper 
to  be  allowed  and  to  whom  out  of  the  income  of 
her  share  for  her  maintenance  and  education.    A 
dispute  having  arisen  in  taking  the  accounts  and 
inquiry,  H.  applied  for  a  declaration  that  the 
receipts  by  C.  of  the  income  of  the  shares  of  the 
daughters  for  maintenance  were  a  good  discharge 
to  H.,  and  that  H.  was  not  to  be  called  upon  to 
produce  vouchers  in  respect  of  the  particular 
manner  in  which  the  income  was  applied.    Kay. 
J.,  made  an  order  expressing  the  opinion  of  the 
court  that  the  accounts  of  the  trustees  should  be 
taken  as  directed  by  the  judgment  as  between 
guardian  and  ward,  and  ordering  H.  to  pay  the 
costs  of  the  application : — Held,  on  appeal,  that 
H.,  as  trustee,  was   not   discharged   by  mere 
evidence  of  payment  of  the  income  to  C,  his  co- 
guardian,  but  that  under  the  inquiry  H.  was  not 
bound  to  vouch  the  items  of  expenditure  ;  and 
if  it  was  shown  that  C.  had  properly  maintained 
and  educated  the  children,  the  sum  proper  for 
that  purpose  would    be  allowed   against   the 
balance   found  due  on  the    account,  without 
vouching  the  details  of  the  application.    Beans, 
In  re,   Welch  v.  Channell,  26   Ch.  D.  58 ;  53 
L.  J.,  Ch.  709 ;  51  L.  T.  175  ;  32  W.  R.  736— 
C.A. 

Sale  by  Trustees  —  Purchase-money.]  —  See 
Flower  v.  Metropolitan  Board  of  Works,  ante, 
col.  1885. 

8alary.] — See  Bedingfield,  In  re,  supra. 


12.    PRESERVATION  AND  REPAIR  OF 

PREMISES. 

Power  ae  to  Repair.] — By  his  will  a  testator 
gave  to  his  trustees  his  house  and  all  the  furni- 
ture, &a,  therein  at  the  time  of  his  death  in 
trust  to  permit  B.  to  use  and  occupy  the  house 
and  furniture  for  and  during  her  life,  free  of  all 
rent  or  compensation  for  the  same,  and  free  from 
all  obligation  to  repair  or  insure  (which  he 
expressly  directed  his  trustees  to  do),  and  free  of 
all  rates,  taxes  and  other  outgoings  (all  of  which 
he  directed  his  trustees  to  discharge)  ;  and  after 
the  death  of  BM  the  house  and  furniture  were  to 
fall  into  and  form  part  of  his  residuary  estate  : — 
Held,  that  the  trustees  were  not  bound  to  do 
more  than  repair  and  insure  the  premises,  and 
pay  the  rates,  taxes,  tithes,  and  other  outgoings 
during  B.'s  life  ;  but  that,  if  in  their  opinion  it 
should  be  necessary  to  do  more  than  this  to 
prevent  the  property  from  becoming  deteriorated, 
their  proper  course,  wonld  be  to  come  to  the  court 
for  direction.  Colyer,  In  re,  Mill  ikin  v.  Snelling, 
65  L.  T.  344— Kay,  J. 

A  testatrix  gave  "all  my  real  and  personal 
estate  "  to  trustees  "  upon  trust  at  their  discretion 
to  sell  all  such  parts  thereof  as  shall  not  consist 
of  money,"  and  out  of  the  produce  to  pay  her 
debts  and  funeral  and  testamentary  expenses, 
and  invest  the  residue,  "and  shall  stand  pos- 
sessed of  such  real  and  personal  estate,  moneys, 


and  securities'*  upon  trust  "to  pay  the  rents, 
interest,  and  dividends  and  annual  produce 
thereof "  to  T.  during  her  life,  with  a  clause  of 
forfeiture  on  alienation,  and  after  the  decease  of 
T.  the  testatrix  devised  and  bequeathed  "my 
said  real  and  personal  estate  and  the  securities 
on  which  the  same  may  be  invested  unto  and  to 
the  use  of  V.  C,  his  heirs,  executors,  adminis- 
trators, and  assigns  for  ever,  according  to  the 
nature  and  quality  thereof  respectively."  At  her 
death  she  was  entitled  in  fee  to  the  P.  estate,, 
which  was  unincumbered.  Some  time  after  her 
death  a  remainder  in  fee  to  which  she  was 
entitled  in  the  B.  estate,  which  was  subject  to 
mortgages  made  by  prior  owners  and  was  out  of 
repair,  fell  into  possession,  and  its  income  was 
only  sufficient  to  pay  the  interest  on  the  mort- 
gages. The  trustees  took  out  a  summons  for 
directions  as  to  interest  and  repairs.  The  tenant 
for  life  contended  that  she  could  disclaim  the 
B.  estate ;  the  remainderman  contended  that 
the  rents  of  the  P.  estate  were  liable  for  the 
interest  on  the  mortgages  of  the  B.  estate  and  for 
repairs  of  that  estate : — Held,  that  the  will  did 
not  create  a  trust  for  conversion,  but  only  gave  a 
power  of  sale ;  that  no  power  of  management 
and  applying  rents  in  repairs  was  conferred  on 
the  trustees ;  that  T.  as  equitable  tenant  for  life- 
was  not  bound  to  repair  ;  and  that  the  rents  of 
the  P.  estate  could  not  be  applied  by  the  trustees 
in  repairing  the  B.  estate,  though  the  court,  if 
applied  to,  could  sanction  the  doing  such  repairs 
as  were  expedient  on  terms  which  would  be 
equitable  as  between  the  tenant  for  life  and  the 
remainderman.  Held,  further,  that  under  a 
trust  of  this  nature  the  trustees  had  a  discre- 
tionary power  to  apply,  if  expedient,  the  income 
of  the  unincumbered  estate  in  paying  such  part 
of  the  interest  on  the  mortgages  as  the  rents  of 
the  mortgaged  estate  were  insufficient  to  pay, 
but  whether  in  case  of  their  doing  so  there 
would  not  be  equities  to  be  adjusted  between  the 
tenant  for  life  and  the  remainderman,  quaere. 
Hotchkys,  In  re,  Freke  v.  Calmady,  32  Ch.  D. 
408  ;  55  L.  J.,  Ch.  546 ;  55  L.  T.  110 ;  34  W.  R. 
569— C.  A. 

Aotion  against  Tenant  for  Life  for  Non-repair.  J 

— A  testator  gave  his  real  estate  to  trustees  upon 
trust  for  his  widow  for  life,  with  remainder  over, 
in  events  which  happened,  to  A.  for  life,  &c.  The 
will  contained  a  direction  that  each  tenant  for 
life  should  during  such  estate  keep  the  buildings 
thereon  in  substantial  repair,  and  if  any  such 
person  should  neglect  to  effect  such  repairs 
within  six  months  after  being  requested  so  to  do 
by  the  trustees,  the  trustees  should  be  at  liberty 
to  effect  such  repairs.  The  widow  of  the  testator 
was  in  possession  of  the  premises  till  her  death, 
and  she  had  omitted  to  repair  the  buildings.  A 
claim  was  carried  in  against  her  estate  in  an 
administration  action,  in  respect  of  the  omission 
to  repair,  the  claimants  being  the  trustees  of 
the  will,  and  the  then  equitable  tenant  for  life. 
The  claim  was  resisted,  on  the  ground  that  the 
right  to  recover,  if  any,  was  in  the  remainder- 
man, and  that  therefore  the  claim  was  preferred 
by  the  wrong  parties  : — Held,  that  as  the  trustees 
had  an  interest  in  protecting  the  ultimate  equit- 
able estate,  the  claim  was  properly  brought  by 
them.  Williames,  In  re,  Andrew  v.  Williames, 
54  L.  T.  105— C.  A. 

Jurisdiction  of  Court  to  order  Expenditure  of 

3  P  2 


1895 


TRUST    AND    TRUSTEE. 


1896 


Trait  Money  for  Preservation  of  Estate.]— See 
ante,  cols.  1610, 1611. 


13.    PAYMENT  OF  COSTS. 

Charge  on  Capital  and  Income,  when  properly 
Incurred.]— The  trustees  of  a  freehold  estate,  of 
which  the  plaintiff  was  equitable  tenant  for  life 
under  a  will,  brought  actions  under  the  advice 
of  counsel  against  two  persons  for  interfering 
with  the  property,  and  compromised  them  be- 
fore trial.  The  plaintiff  had  no  notice  of  the 
proceedings,  but  had  some  time  previously 
warned  the  trustees,  on  the  occasion  of  an 
injury  done  by  persons  other  than  the  defen- 
dants to  these  actions,  that  he  should  hold  them 
liable  if  they  did  not  take  all  necessary  steps 
to  protect  the  property.  In  December,  1881,  the 
plaintiff  applied  to  the  trustees  for  the  rents 
accrued  since  May,  1880.  The  trustees'  solicitor 
answered,  stating  the  amount  of  the  rents  re- 
ceived, and  saying  that  it  was  less  than  the  costs 
incurred  by  the  trustees  in  the  action,  and  that 
they  were  out  of  pocket  A  correspondence 
ensued,  in  the  course  of  which  the  trustees  ex- 
pressed their  willingness  to  concur  in  any  ar- 
rangement for  raising  the  costs  out  of  the  estate, 
but  the  plaintiff  insisted  on  having  the  rents 
paid  to  him  irrespective  of  any  arrangement  for 
raising  the  costs,  and  brought  his  action  to  enforce 
payment  The  Vice-chancellor  of  the  Lancaster 
Court  made  an  order,  declaring  that  as  the 
actions  were  brought  without  the  knowledge  or 
consent  of  the  plaintiff,  the  costs  were  not 
chargeable  against  the  income.  And  the  court 
"being  of  opinion  that  the  actions  were  com- 
menced under  the  advice  of  counsel,"  ordered  the 
trustees'  costs  of  them  to  be  raised  and  paid  out 
of  the  estate,  but  ordered  the  trustees  to  pay  the 

Elaintiff  his  costs  of  the  present  action  up  to  the 
earing.  The  plaintiff  appealed  against  the 
direction  to  raise  the  costs  of  the  former  actions 
out  of  the  estate,  and  the  trustees  from  the  order 
as  to  the  costs  of  the  present  action  : — Held,  on 
appeal,  that  the  direction  to  raise  the  costs  of  the 
trustees  of  the  old  actions  out  of  the  estate  ought 
to  be  affirmed,  for  that  the  actions  appeared  to 
have  been  brought  bona  fide  and  to  have  been 
beneficial  to  the  estate,  but  that  the  reason  given 
*n  the  decree  for  allowing  them  ought  to  be 
varied,  as  that  result  did  not  necessarily  follow 
from  their  having  been  commenced  under  the 
advice  of  counsel.  But  held,  that  the  order  on 
the  trustees  to  pay  costs  must  be  reversed,  and 
directions  given  for  raising  their  costs  of  this 
action  out  of  the  estate,  for  that  the  costs  of 
trustees  properly  incurred  in  the  administration 
of  the  trust  are  a  first  charge  on  both  the  capital 
and  income  of  the  trust  estate,  and  that  the  trus- 
tees were  not  bound  to  part  with  the  income  till 
their  costs  had  been  otherwise  provided  for,  and 
they  therefore  had  been  guilty  of  no  misconduct. 
Stott  v.  Milne,  25  Ch.  D.  710  ;  60  L.  T.  742— 
C.  A. 

Priority  of  Trustees.]— Trustees  in  an  adminis- 
tration action  brought  by  their  cestuis  que 
trustent,  where  an  order  has  been  made  for  pay- 
ment of  costs  out  of  the  estate,  and  it  appears 
probable  that  the  estate  will  not  be  sufficient  to 
pay  all  their  costs  in  full,  are  entitled  to  an  order 
directing  the  payment  of  their  costs,  charges, 
and  expenses  in  priority  to  the  costs  of  all  other 


parties  to  the  action.  Doddt  v.  Tuke,  25  Ch.  D. 
617  ;  53  L.  J.,  Ch.  598  ;  50  L.  T.  320 ;  32  W.  B. 
424— V.-C.  B. 

Attempt  to  uphold  Settlement  —  Ian  on 
Fund.] — Trustees  of  a  settlement,  originally 
valid,  but  which  becomes  void  on  the  bank- 
ruptcy of  the  settlor,  are  entitled  as  against  the 
trustee  in  bankruptcy  to  a  lien  on  the  trust 
property  for  expenses  properly  incurred  in  the 
performance  of  their  duty  as  trustees.  Official 
Receiver,  Ex  parte,  Holden,  In  re,  20  Q.  B.  D. 
43  ;  57  L.  J.,  Q.  B.  47  ;  58  L.  T.  118  ;  36  W.R. 
189— D. 

The  settlor  of  a  post-nuptial  settlement 
brought  an  action  to  set  it  aside.  The  trustees 
of  the  settlement  defended  the  action,  which  wm 
dismissed  with  costs,  but  the  costs  were  not  paid. 
— The  settlor  became  bankrupt  within  two  yean 
after  the  date  of  the  settlement,  which  accord- 
ingly became  void  under  s.  47  of  the  Bankruptcy 
Act  1883  :— Held,  that,  as  the  settlement  was 
originally  valid,  and  as  the  costs  of  the  action 
had  been  incurred  by  the  trustees  in  the  per- 
formance of  their  duty  as  trustees,  they  were 
entitled,  as  against  the  official  receiver,  to  a  lien 
on  the  trust  fund  for  such  costs.    lb. 

In  an  action  against  the  trustees  of  a  volun- 
tary settlement  for  rectification  : — Held,  that  as 
they  did  not  set  up  any  claim,  but  represented 
absent  parties,  who  could  not  be  ascertained, 
it  was  their  duty  to  attempt  to  maintain  the 
settlement,  and  therefore  the  costs  of  the 
trustees  were  declared  to  be  a  charge  on  the 
trust  estate.  James  v.  Couehman,  29  Ch.  D.  212 ; 
54  L.  J.,  Ch.  838  ;  52  L.  T.  344  ;  33  W.  R.  452 
— North,  J. 

As  between  Solicitor  and  Client  1— One  of 

two  executors  and  trustees  commenced  an  action 
against  the  other  for  the  administration  of  the 
estate,  and  a  decree  wa?  made.  There  was  no 
allegation  of  any  misconduct  on  the  part  of  the 
defendant  On  the  action  coming  on  for  further 
consideration,  the  court  gave  the  plaintiff  his 
costs  as  between  solicitor  and  client,  but  gave  the 
defendant  costs  only  as  between  party  and  party, 
holding  that  two  sets  of  costs  as  between  solicitor 
and  client  ought  not  to  be  allowed  to  the  trus- 
tees : — Held,  on  appeal,  that  a  trustee  is  entitled 
to  costs  as  between  solicitor  and  client  in  an 
administration  action,  unless  a  case  of  miscon- 
duct is  made  out  against  him,  and  that  the 
defendant  must  have  costs  as  between  solicitor 
and  client.  Lore,  In  re,  Hill  v.  Sturgeon,  29 
Ch.  D.  348  ;  54  L.  J.,  Ch.  816  ;  52  L.  T.  398 ;  33 
W.  R.  449— C.  A. 

Exercise  of  Powers  without  sanction  of  Court] 
— On  the  hearing  on  further  consideration  of  an 
administration  action,  an  order  was  made  by 
which  all  the  questions  raised  were  practically 
disposed  of,  but  liberty  to  apply  was  reserved. 
Subsequently  the  trustees  of  the  will  of  the  testa- 
tor in  the  action,  in  exercise  of  the  powers  under 
the  will,  and  with  the  consent  of  the  tenant  for 
life,  sold  land  forming  part  of  the  estate,  and 
carried  out  other  transactions,  without  applying 
for  or  obtaining  any  sanction  of  the  court:— 
Held,  that  the  trustees  were  entitled  to  their 
proper  costs  of  carrying  out  such  transactions. 
Mantel,  In  re,  Rhode*  v.  Jenkins,  64  L.  J.,  Ch. 
883  ;  52  L.  T.  806  ;  33  W.  R.  727— Pearson,  J. 


1897 


TRUST    AND    TRUSTEE. 


1898 


Aotion  to  set  aside  Sale  by  Cestui  que  trust 
to  Trustee.] — See  Plowright  v.  Lambert ,  ante, 
col.  1886. 

Hew  Trustees  liable  to  pay  Costs  preliminary 
to  Appointment — Costs  of  old  Trustees — Costs  of 
Donee  of  Power.] — In  a  partition  action  an  order 
was  made  directing  the  taxation  of  the  costs  of 
the  parties,  including  in  the  eosts  of  the  defen- 
dants, the  trustees,  "one  moiety  of  any  costs, 
charges,  and  expenses  properly  incurred  by  them 
as  trustees  of  the  will  of  the  testator  beyond 
their  costs"  of  the  action.  The  taxing-master 
disallowed  the  costs  of  former  trustees,  who 
were  dead,  paid  to  the  executor  of  the  survivor 
in  consideration  of  his  transferring  the  trust 
property,  also  costs  of  examining  into  the  state 
of  the  trust  property,  and  the  validity  of  the 
power,  before  the  appointment,  also  costs  of  the 
donee  of  the  power  m  appointing.  On  summons 
to  review  taxation  : — Held,  that  the  trustees 
were  bound  to  pay  the  costs  of  the  old  trustees 
properly  incurred ;  that  the  burden  of  proof 
that  the  payments  were  wrong  lay  on  the  ob- 
jectors : — Held,  also,  that  it  was  not  only  the 
right,  but  the  duty,  of  the  new  trustees  to  see 
what  the  estate  consisted  of,  and  that  the  power 
was  properly  exercised  ;  also  that  they  were 
entitled  to  the  costs  of  the  donee  of  the  power 
which  they  had  paid.  The  trustees  were  there- 
fore on  principle  entitled  to  the  costs  disallowed, 
subject  to  the  discretion  of  the  taxing-master 
as  to  items.  Harvey  v.  Olliver,  67  L.  T.  239 — 
Kay,  J. 

Defaulting  Trustee — Payment  into  Court.] — 
Where  in  a  Chancery  action  money  has  been 
found  due  from  a  trustee,  the  proper  form  of 
order  is  to  direct  the  money  due  to  be  paid  into 
court  before  the  trustee  in  default  is  allowed  to 
receive  his  costs  out  of  the  trust  estate,  or  even 
to  receive  any  share  in  the  trust  estate  to  which 
he  is  entitled.  Staniar  v.  Evans,  34  Ch.  D.  470 ; 
56  L.  J.,  Ch.  581  ;  56  L.  T.  87  ;  35  W.  R.  286— 
North,  J. 

A.  and  B.,  executors  and  trustees  of  a  testator, 
set  apart  a  fund  to  answer  an  nnnuity  bequeathed 
to  the  plaintiff.  A.  and  B.  committed  a  breach 
of  trust  by  means  whereof  the  fund  came  into 
the  name  of  B.  alone,  who  misappropriated  it. 
A.  died,  and  by  his  will  gave  a  legacy  to  B.  and 
J.  on  certain  trusts.  B.  having  become  bank- 
rupt, in  an  action  by  the  annuitant,  J.,  was 
ordered  to  refund  the  trust  legacy  in  his  hands, 
which  was  insufficient  to  answer  the  breach  of 
trust  committed  by  his  testator : — Held,  that 
neither  J.  nor  the  trustee  in  bankruptcy  of  B. 
was  entitled  to  have  his  costs  out  of  the  fund 
before  it  was  paid  into  court.  Knotty  In  re, 
Box  v.  Palmer,  56  L.  J.,  Ch.  318  ;  56  L.  T.  161 ; 
35  W.  R.  302— Stirling,  J. 

• 

Befusal  to  Transfer  Trust  Funds.] — A  sur- 
viving trustee  who,  without  sufficient  reason,  de- 
clined to  transfer  trust  funds  to  new  trustees, 
dnly  appointed  under  a  power  in  the  instrument 
creating  the  trust,  was  ordered  to  pay  the  costs 
of  an  action  to  compel  such  transfer.  Copjnnger 
t.  Sheldeton,  16  L.  R.,  Ir.  461— V.-C. 

Depriving  of— Misconduct.] — A  trustee  is  not, 
in  the  absence  of  misconduct,  to  be  deprived  of 
costs  by  reason  of  his  having  invested  in  what  is 
not,  strictly  speaking,  an  authorised  security,  if 


at  the  time  of  the  judgment  the  fund  has  been 
replaced  without  loss.  Peacock  v.  Colling,  54 
L.  J.,  Ch.  743 ;  53  L.  T.  620 ;  33  W.  R.  528— 
C.A. 

Costs  out  of  Trust  Fund— Tacit  Obstruction 
to  Cestui  que  trust.]— The  executors  of  the  sole 
executor  of  a  deceased  sole  trustee  whose  sole 
executor  had  never  acted  in  the  trust  were 
applied  to  in  April,  1883,  to  take  steps  to  enable 
the  tenant  for  life  of  a  small  sum  of  stock  stand- 
ing in  the  name  of  the  deceased  trustee  to  receive 
the  dividends.  In  May,  1883,  the  executors 
handed  to  the  solicitor  of  the  tenant  for  life  the 
probate  of  their  testator's  will,  that  he  might 
produce  it  at  the  Bank  of  England,  which  he 
did.  After  some  correspondence,  in  the  course 
of  which  the  executors  asked  for  evidence  of 
the  title  of  the  cestuis  que  trust,  which  did  not 
appear  to  have  been  produced,  the  solicitor  of 
the  tenant  for  life,  about  the  end  of  May,  sent  a 
power  of  attorney  to  be  executed  by  the  exe- 
cutors, to  enable  her  to  receive  the  dividends. 
The  executors  did  not  execute  or  return  the 
power.  In  July  the  solicitor  of  the  tenant  for 
life  applied  to  the  executors  to  appoint  new 
trustees  under  the  Conveyancing  and  Law  of 
Property  Act,  1881,  to  which  the  executors  re- 
plied, stating  their  ignorance  of  the  title  of  the 
cestuis  que  trust.  Ultimately,  in  November, 
1883,  the  cestuis  que  trust  presented  a  petition 
for  the  appointment  of  new  trustees  and  a  vest- 
ing order : — Held,  that  the  conduct  of  the  exe- 
cutors, who  appeared  to  have  accepted  the  trust 
by  taking  a  transfer  of  the  stock  into  their  own 
names,  had  been  vexatious,  and  that  they  must 
pay  the  costs  which  would  have  been  occasioned 
by  a  petition  simply  asking  for  payment  of  divi- 
dends to  the  tenant  for  life,  and  that  they  could 
not  be  allowed  any  costs  out  of  the  fund.  But 
held,  on  appeal,  that  as  the  cestuis  que  trust  had 
not  taken  proper  steps  to  satisfy  the  executors 
as  to  their  title,  the  executors  had  not  been 
guilty  of  any  such  misconduct  as  is  necessary  to 
deprive  a  trustee  of  his  right  to  costs  out  of  the 
trust  fund,  and  that  they  must  have  their  costs 
below,  but  that  as  the  Court  of  Appeal  was  not 
satisfied  with  their  conduct,  they  ought  to  have 
no  costs  of  their  appeal.  Knight's  Trusts  or 
Knight's  Will,  In  re,  26  Ch.  D.  82 ;  50  L.  T. 
550;  32  W.  R.  417— C.  A.  Reversing  53  L.  J., 
Ch.  223— Pearson,  J. 

Solicitor  Trustee,  Rights  of.] — See  Solicitor, 
VI.,  2,  d. 

Right  to  set  off  Debt  due  against  Costs.] — 

Where  a  person  at  the  time  of  an  order  being 
made  for  payment  of  his  costs  by  trustees  on  a 
petition  in  the  matter  of  a  trust  is  indebted  to 
the  trust  estate,  although  the  amount  is  not  then 
ascertained,  he  cannot  get  any  of  such  costs 
until  he  has  paid  the  amount  due  from  him  to 
the  trust,  and  the  trustees,  therefore,  can  set  off 
the  costs  payable  by  them  against  the  amount 
due  from  him.  Harrald,  In  re,  WUde  v.  Wal- 
ford,  53  L.  J.,  Ch.  505  ;  51  L.  T.  441— C.  A. 


14.  NOTICE  TO  TRUSTEES. 

Hew  Trustees — Kotiee  to  original  Trustees — 
Constructive  Kotiee.] — Persons  appointed  new 
trustees  under  a  will  or  settlement  are  bound  to 


1899 


TRUST    AND    TRUSTEE. 


1900 


inquire  what  the  trust  property  consists  of,  and 
what  the  trusts  are,  and  to  look  into  the  trust 
documents  to  see  what  incumbrances  their  pre- 
decessors had  notice  of.  But  if  there  was  no- 
thing among  the  trust  documents  which  would 
have  given  them  notice  of  an  incumbrance,  they 
will  not  be  held  liable  for  loss  arising  from  their 
ignorance  of  it,  even  though  they  have  in  fact 
omitted  to  look  into  those  documents.  Hallows 
v.  Lloyd,  39  Ch.  D.  686 ;  68  L.  J.,  Ch.  106 ;  69 
L.  T.  603  ;  37  W.  R.  12— Kekewich,  J. 


15.  PRODUCTION  OF  TITLE-DEEDS. 

To  Cestui  que  trust.] — Primft  facie,  and  in 
the  absence  of  any  special  circumstances,  a 
cestui  que  trust,  even  though  he  be  only  inter- 
ested in  the  proceeds  of  the  sale  of  land,  is  en- 
titled to  the  production  and  inspection  of  all 
title-deeds  and  other  documents  relating  to  the 
trust  estate  which  are  in  the  possession  of  the 
trustees.  One  cestui  que  trust  can  enforce  this 
right  against  the  trustees,  without  bringing 
before  the  court  the  other  persons  beneficially 
interested  in  the  property  when  they  have  no 
higher  right  than  himself.  Coicin,  In  re,  Cbivin 
v.  Gravett,  33  Ch.  D.  179  ;  56  L.  J.,  Ch.  78  ;  34 
W.  R.  735— North,  J. 


16.  OTHER  PROCEEDINGS  BY  AND 
AGAINST. 

Account  of  Moneys  received  by  Trustee  during 
Infancy.] — In  an  action  against  trustees  of  a 
settlement,  asking  (inter  alia)  that  each  should 
furnish  and  vouch  their  accounts  of  the  trust  de- 
clared thereby,  one  of  the  trustees  (R.)  had  only 
recently  attained  twenty-one.  Bacon,  V.-C, 
directed  that  in  taking  the  account,  the  same 
was,  as  regards  R.,  to  be  limited  to  any  moneys 
and  properties  received  by  him  since  he  attained 
twenty-one.  On  appeal,  the  court,  without  then 
determining  the  liability  of  such  infant  trustee, 
held  that  the  proper  form  of  decree  was  to  order 
the  account  against  the  adult  trustee  in  the  usual 
form,  directing  an  inquiry  whether  all  or  any  and 
what  parts  of  the  trust  property  had  come  to  the 
hands  of  R.,  and  what  had  been  his  dealings  and 
transactions  in  respect  of  the  same,  and  as  to  the 
dates  of,  and  circumstances  attending,  such  re- 
ceipts, dealings,  and  transactions.  Garnet,  In 
re,  Garnet  v.  Applin,  31  Ch.  D.  147 ;  55  L.  J., 
Ch.  303  ;  54  L.  T.  141  ;  34  W.  R.  127— C.  A. 

Sufficiency  of  Interest  to  maintain  Admi- 
nistration.]— A  member  of  a  class,  designated  as 
the  objects  entitled  to  a  trust  fund  in  the  event 
of  the  happening  of  one  or  more  contingencies, 
has  a  sufficient  interest  to  maintain  an  action 
for  the  protection  of  the  fund  if  at  the  time  of 
action  brought  the  maximum  number  of  the 
class  is  ascertained,  although  it  be  still  uncertain 
whether  he  will  ultimately  form  one  of  the 
members  of  that  class.  Peacock  v.  Colling, 
54  L.  J.,  Ch.  743  ;  53  L.  T.  620  ;  33  W.  R.  528— 
C.  A. 

Originating  Summons  —  Act  done  outride 
Trust.]— Rule  3  (e)  of  Ord.  LV.  only  relates 
to  the  doing,  or  the  abstaining  from  doing  by 


trustees,  of  some  act  within  the  scope  of  their 
trusts  ;  and  an  originating  summons  ought  not 
to  be  taken  out  under  that  rule  for  the  purpose 
of  obtaining  a  direction  to  trustees  to  do,  or  to 
abstain  from  doing,  an  act  which  is  outside  the 
scope  of  their  trust.  Suffolk  v.  Lawrence,  32 
W.  R.  899— Pearson,  J. 

Trustees  acting  under  Special  Case— Protec- 
tion.]—By  the  combined  effect  of  Ord.  XXXIV., 
r.  8,  and  the  saving  clause  in  the  Statute  Law 
Revision  Act,  1883,  the  protection  given  to 
trustees  and  others  acting  on  the  declaration  of 
the  court  on  a  special  case  is  preserved,  not- 
withstanding the  repeal  of  the  act.  Forkeri. 
Schlesingei;  54  L.  T.  51 — Pearson,  J. 

Refusal  of  Trustee  to  Sue — Sight  of  Cestui 
que  trust.]—  See  ante,  cols.  1398, 1399. 


III.  TRUSTEE  ACTS. 
1.  PAYMENT  INTO  COURT. 

Jurisdiction— Repayment  by  Trustees  of  Costs.] 
— On  applications  for  payment  out  of  a  fund  which 
has  been  paid  into  court  under  the  Trustee  Relief 
Act,  the  jurisdiction  of  the  court  is  limited  to  the 
fund  which  has  been  actually  brought  into  court ; 
and  repayment  by  the  trustees  of  costs  and  ex- 
penses deducted  by  them  from  the  fund  before 
payment  in  cannot  be  ordered.  If  it  can  be 
shown  that  in  such  a  case  the  costs  and  expenses 
have  been  improperly  retained  separate  proceed- 
ings must  be  taken  against  the  trustees  to  recover 
the  amount.  Parker's  Will,  In  re,  39  Ch.  D. 
303  ;  58  L.  J.,  Ch.  23  ;  60  L.  T.  83 ;  37  W.  R. 
313— C.  A. 


Service  out  of— Petition  for  Payment 


out.] — The  court  has  no  jurisdiction  to  allow 
service  out  of  the  jurisdiction  of  a  petition 
under  the  Trustee  Relief  Act  for  payment  of 
money  out  of  court.  Gordon's  Settlement  Trxstf, 
In  re  (W.  N.  1887,  p.  192)  not  followed.  On 
appeal  from  this  decision,  it  appearing  that  the 
order  sought  by  the  petition  was  only  for  carry- 
ing into  full  effect  an  order  which  had  recently 
been  obtained  by  the  respondents,  the  Court  of 
Appeal,  without  deciding  that  leave  was  neces- 
sary, gave  leave  to  serve  the  petition  on  the 
solicitors  who  had  presented  the  former  petition, 
and  who  were  willing  to  accept  service.  JeUari, 
In  re,  39  Ch.  D.  424 ;  60  L.  T.  83— North,  J., 
and  C.  A. 

To  exercise  Discretion  to  make  Advances 


for  Maintenance.] — Where  money  vested  by  a 
deed-poll  in  trustees  upon  trust  to  apply  it  in 
such  manner  in  every  respect  as  they  in  their 
uncontrolled  discretion  should  think  fit  for  or 
towards  the  maintenance,  education,  advance- 
ment, or  benefit  in  any  way  of  all  or  any  one  or 
more  exclusively  of  the  other  or  others  of  the 
children  of  a  certain  person,  and,  as  to  all  or  any 
part  of  the  said  sum  which  should  not  have  been 
applied  as  hereinbefore  mentioned  previously  to 
the  youngest  attaining  the  age  of  twenty-one 
years,  in  trust  for  alJ  the  children  in  equal 
shares,  is  paid  into  court  under  the  Trustee 
Relief  Acts,  it  is  competent  for  the  court  to 
exercise  the  discretion  as  to  advances  for  main- 


1901 


TRUST    AND    TRUSTEE. 


1902 


tenanoe,  education,  advancement,  or  benefit 
originally  given  to  the  trustees,  and  the  residue 
of  the  fund,  after  making  such  advances,  will  be 
divisible  among  the  beneficiaries  in  equal  shares 
without  taking  such  advances  into  account. 
Ashhtrnham's  Trv*t,  In  re,  64  L.  T.  84— D. 
But  tee  Kettle/old1*  Trusts,  In  re,  ante,  col. 
1881. 

Payment  out  to  Master  in  Lunacy  in  Hew 
South  Wales.] — See  Barlow,  In  re,  ante,  col. 
1161. 

Service  of  Affidavit.]— The  affidavit  to  be 
made  on  a  lodgment  of  funds  in  court  should 
be  served  forthwith  on  "  the  persons  interested 
in  or  entitled  to  them,"  i.e.,  in  the  same  way  and 
upon  the  same  parties  as  if  the  Chancery  Funds 
Roles,  1874,  remained  in  force,  and  had  not  been 
repealed  by  the  Supreme  Court  Funds  Rules, 
1884.  Stenning's  Trusts,  In  re,  50  L.  T.  586— 
Pearson,  J. 

Costs— Originating  Summons.] — Trustees  who 
pay  money  into  court  under  the  provisions  of 
the  Trustee  Relief  Act,  when  the  question 
arising  might  be  decided  upon  an  originating 
summons  under  Ord.  LV.  of  the  Rules  of  Court, 
1883,  will  in  future  not  be  allowed  the  costs 
occasioned  by  such  payment  into  court.  Giles, 
In  re,  55  L.  J.,  Ch.  695  ;  65  L.  T.  51 ;  34  W.  R. 
712-Kay,  J. 

- —  Costs  of  Appearance.] — Executors  who 
paid  into  court  under  the  Trustee  Relief  Act,  a 
rand  representing  part  only  of  a  share,  the  title 
to  which  was  disputed,  and  retained  the  re- 
mainder in  their  hands,  were  made  respondents 
to  a  petition  for  payment  out  of  the  fund  in 
court,  and  accepted  a  tender  of  30*.  for  their 
costs,  under  Ord.  LXV.  r.  27,  sub-r.  19  :— Held, 
that  they  were  entitled  to  their  costs  of  appear- 
ance out  of  the  remainder  of  the  share.  VardoiCs 
Trusts,  In  re,  33  W.  R.  297— Kay,  J. 

Practice  in  General  as  to.]— See  ante,  cols. 
1429, 1430. 


2.  APPOINTMENT  OF  PERSON  TO 

CONVEY. 

Order  for  Sale  —  Vendor  found  Lunatic]  — 
An  order  was  made  in  a  partition  action  for  sale 
of  the  leasehold  estate  in  respect  of  which  the 
action  was  brought.  After  a  sale  had  been 
made  it  was  discovered  that  one  of  the  bene- 
ficiaries was  a  lunatic  so  found,  but  that  no 
committee  had  been  appointed.  The  court  then 
made  an  order  declaring  the  other  beneficiaries 
seised  of  the  property  upon  a  trust  within  the 
meaning  of  the  Trustee  Act,  1850,  and  the 
Trustee  Extension  Act,  1852,  and  appointing 
another  party  to  the  action  to  convey  the 
property  to  the  purchaser  for  the  estates  of  the 
beneficiaries  therein  other  than  the  lunatic.  A 
petition  was  then  presented  to  the  Lord  Chan- 
cellor, intituled  in  Lunacy  and  in  the  Chancery 
Division,  asking  for  a  declaration  that  the  lunatic 
was  to  be  deemed  seised  of  his' share  upon  a  trust 
within  the  meaning  of  the  Trustee  Act,  1850, 
and  that  the  same  person  migfht  be  appointed  to 


convey  such  property  to  the  purchaser  for  all  the 
estate  and  interest  of  the  lunatic  : — Held,  that, 
as  the  order  for  sale  had  been  made,  the  lunatic 
was,  under  s.  1  of  the  Trustee  Act,  1852,  to  be 
deemed  to  be  possessed  upon  a  trust  within  the 
meaning  of  the  Act  of  1850,  and  that,  although 
the  rest  of  that  section  only  gave  jurisdiction  to 
the  Chancery  Division,  the  court  sitting  in 
Lunacy  could,  under  ss.  3  and  20  of  the  Trustee 
Act,  1850,  appoint  a  person  to  convey  the 
lunatic's  interest.  Watson,  In  re,  58  L.  T.  509 
— C.  A. 


Specific  Performance — Refusal  to  obey  Order.] 
— A  decree  was  made  for  specific  performance 
of  an  agreement  to  grant  a  new  lease  of  certain 
premises,  and  the  defendant  was  ordered  to  exe- 
cute such  new  lease  to  the  plaintiff.  The  defen- 
dant having  refused  to  obey  the  order,  the 
plaintiff  moved  for  leave  to  issue  a  writ  of 
attachment  against  her  : — Held,  that  there  hav- 
ing been  a  decree  for  specific  performance,  the 
court  had  jurisdiction,  under  s.  30  of  the  Trustee 
Act,  1850,  to  appoint  a  person  to  execute  the 
lease  in  place  of  the  defendant,  and  the  motion 
was  directed  to  be  amended  accordingly.  The 
motion  having  been  amended,  an  order  was  made 
declaring  the  defendant  a  trustee  of  the  premises 
within  the  meaning  of  the  Trustee  Act,  and  a 
person  was  appointed  in  place  of  the  defendant 
to  execute  the  lease  to  the  plaintiff.  Hall  v. 
Hale,  51  L.  T.  226— Kay,  J.  See  now  47  &  48 
Vict.,  c.  61,  s.  14. 


Mortgagee  a  Lunatic— Direction  to  Transfer.] 

— Section  3  of  the  Trustee  Act,  1850,  is  not  con- 
fined to  a  case  where  the  lunatic  or  person  of 
unsound  mind  is  a  sole  trustee  or  mortgagee,  but 
extends  to  the  case  where  he  is  one  of  several 
trustees  or  mortgagees.  One  of  two  trustees 
being  of  unsound  mind,  a  new  trustee  was 
appointed  in  his  place  under  a  power : — Held, 
that  the  court  has  jurisdiction  to  appoint  a 
person  to  convey  the  interest  of  the  trustee  of 
unsound  mind  in  a  mortgage,  forming  part  of  the 
trust  estate,  for  the  purpose  of  vesting  the  mort- 
gaged estate  in  the  continuing  trustee  and  the 
new  trustee.  Jones,  In  re,  33  Ch.  D.  414  ;  56 
L.  J.,  Ch.  272  ;  55  L.  T.  498  ;  35  W.  R.  172— 
C.  A. 

Where  a  person  of  unsound  mind  is  possessed 
of  an  estate  by  way  of  mortgage,  the  court  can, 
under  the  Trustee  Act,  1850,  s.  3,  appoint  a 
person  to  convey  the  estate  for  the  purpose  of 
effectuating  a  transfer  of  the  mortgage.  Alchol- 
xon,  In  re,  34  Ch.  D.  663  ;  56  L.  J.,  Ch.  1036  ;  56 
L.  T.  770  ;  35  W.  R.  569— C.  A. 

The  court  has  jurisdiction  under  s.  3  of  the 
Trustee  Act,  1850,  where  a  mortgagee  is  a  lunatic, 
to  direct  the  committee  to  transfer  the  mortgage. 
Peel,  In  re,  55  L.  T.  654  ;  35  W.  R.  81— C.  A. 

The  master  in  lunacy  having  reported  that  it 
was  desirable  that  property  of  which  the  lunatic 
was  mortgagee  should  be  sold  under  a  power  of 
sale  in  the  mortgage,  the  court  declined  to  make 
an  order  authorising  the  committee  to  sell  and 
to  convey  the  estate  to  the  purchaser,  but  only 
directed  him  to  sell,  leaving  the  transfer  of  the 
legal  estate  to  be  dealt  with  on  a  subsequent 
application  under  the  Trustee  Act,  1850.  Har- 
uwod,  In  re,  35  Ch.  D.  470 ;  56  L.  J.,  Ch.  974  ; 
56  L.  T.  502  ;  36  W.  R.  27— C.  A. 


1903 


TRUST    AND    TRUSTEE. 


1904 


IV.    VESTING    0SDEB8. 

1.    IN    WHAT    CASES. 

Land  in  Ireland.] — Where  a  trustee  of  land 
in  Ireland  becomes  a  lunatic,  the  judges  of  the 
Court  of  Appeal  in  England  can,  on  a  petition 
intituled  in  the  Chancery  Division  and  in  Lunacy, 
appoint  a  new  trustee  under  their  jurisdiction  in 
lunacy,  and  make  a  Testing  order  under  their 
jurisdiction  as  additional  judges  of  the  Chancery 
Division.  Smyth,  In  re,  65  L.  T.  37  ;  34  W.  R. 
493— C.  A. 

"Wilful"  Refusal  to  Convey.] —Section 2 of 
the  Trustee  Extension  Act,  1852,  only  applies  to 
cases  where  the  title  to  the  lands  of  the  person 
requiring  a  conveyance  thereof  is  free  from  doubt. 
Where  there  is  a  bonft  fide  doubt  as  to  such  title, 
the  refusal  of  a  trustee  to  convey  the  lands  is 
not  "  wilful "  within  that  section,  and  there  is 
therefore  no  jurisdiction  under  it  in  such  a  case 
to  grant  a  vesting  order.  Mills'  Trusts,  In  re, 
40  Ch.  D.  14  ;  60  L.  T.  442  ;  37  W.  R.  81— C.  A. 

Refusal  to  Convey  Land  in  Ireland.] — 

The  court  has  jurisdiction,  under  s.  2  of  the 
Trustee  Extension  Act,  1852,  to  vest  land  in  the 
beneficiaries  absolutely  entitled  thereto,  where 
the  trustee  thereof  wilfully  refuses  to  convey 
to  them,  although  the  land  and  the  trustee  are 
both  in  Ireland,  and  the  trusts  were  created  by 
an  Irish  settlement.  Steele,  In  re,  Gold  v. 
Brennan,  53  L.  T.  716— Chitty,  J. 

Trustee  out  of  Jurisdiction — Mortgage  Debt 
and  Stock.] — The  property  comprised  in  a  settle- 
ment consisted  of  money  lent  upon  a  mortgage 
of  freeholds  vested  in  the  two  surviving  trustees, 
and  of  a  sum  of  consols  standing  in  their  names. 
One  of  these  two  surviving  trustees  was  a  lunatic, 
and  the  other  was  resident  out  of  the  jurisdiction  ; 
and  under  a  power  in  the  settlement  two  persons 
were  appointed  new  trustees  in  their  places. 
Upon  a  petition  by  these  two  new  trustees  and 
by  all  the  beneficiaries  praying  for  an  order  re- 
appointing the  new  trustees  as  trustees  of  the 
settlement,  and  vesting  in  them  the  trust  pro- 
perty : — The  court  declined  to  reappoint  the  new 
trustees,  but  under  s.  3  of  the  Trustee  Act,  1850, 
vested  the  lands  subject  to  the  mortgage  in  the 
new  trustees,  and  under  s.  5  of  the  same  act 
vested  the  mortgage  debt  and  the  right  to  call 
for  a  transfer  of  the  consols  in  the  trustee  of 
sound  mind  resident  out  of  the  jurisdiction,  and, 
it  appearing  that  he  was  out  of  the  jurisdiction, 
vested  the  mortgage  debt  and  the  right  to  call  for 
a  transfer  of  the  consols  in  the  new  trustees. 
Batho,  In  re,  39  Ch.  D.  189  ;  58  L.  J.,  Ch.  32  ; 
59  L.  T.  882— C.  A. 

Trustee  of  Mortgage  Money.]— On  the 

1st  July,  1881,  a  house  was  mortgaged  to  B.  for 
3502.  On  the  15th  July,  1887,  this  mortgage 
was  transferred  to  D.  in  consideration  of  3852. 
This  money  was  in  fact  found  by  S.  and  T.,  and 
the  transfer  was  taken  to  D.  as  trustee  for  them, 
but  there  was  no  declaration  of  trust.  Soon 
after  the  transfer  D.  was  adjudicated  bankrupt, 
and  absconded.  At  the  date  of  the  petition  he 
was  out  of  the  jurisdiction,  and  could  not  be 
found.  The  mortgagor  and  S.  and  T.  presented 
a  petition  under  the  Trustee  Act,  1850,  for  an 


order  vesting  D.'s  estate  in  S.  and  T.  D.'s 
trustee  in  bankruptcy  admitted  that  he  took  no 
beneficial  interest : — Held,  that  the  court  hsd 
j  urisdiction  to  make  the  vesting  order.  .Barter's 
Mortgage  Trusts,  In  re,  58  L.  T.  303— North.  J. 

Death  of  Sole  Trustee— Ho  Perianal  Bepre- 
Mutative.] — The  sole  trustee  of  land  appointed 
by  a  will  died  in  the  lifetime  of  the  testator. 
The  testator's  heiress-at-law  died  intestate  (after 
the  Conveyancing  Act,  1881,  had  come  into 
operation),  and  there  was  no  representative  of 
her  estate  : — Held,  that,  on  a  petition  for  the 
appointment  of  new  trustees  of  the  will,  which 
was  served  on  the  testator's  heir,  an  order  could 
be  made  vesting  the  property  in  the  new  trustees 
for  such  estate  as  was  vested  in  the  heiress- 
at-law  at  the  time  of  her  death.  William* 
Trusts,  In  re,  36  Ch.  D.  231 ;  56  L.  J.,  Ch. 
1088  ;    56  L.  T.  884 ;    36  W.  R.  100-Xorth,  J. 

The  last  survivor  of  three  trustees  of  res! 
estate  died,  and  no  legal  personal  representative 
of  his  estate  had  been  appointed.  Upon  a  peti- 
tion for  the  appointment  of  new  trustees,  and  a 
vesting  order  of  the  trust  property,  an  order  was 
made  vesting  the  estate  in  the  new  trustees  for 
all  the  estate  and  interest  which  the  deceased 
trustee  had  in  him  immediately  before  his  death. 
Rackstraw's  Trusts,  In  re,  52  L.  T.  612 ;  33  W. 
B.  659— Kay,  J. 

Upon  the  death  of  a  sole  surviving  trustee  in- 
testate the  court  made  an  order  for  the  appoint- 
ment of  new  trustees,  and  ordered  certain  lands 
forming  part  of  the  estate  to  vest  in  the  new 
trustees  '*  for  the  estate  now  vested  in  the  heir- 
at-law  of  the  deceased  trustee,"  After  the 
order  had  been  passed  and  entered,  administra- 
tion was  taken  out  to  the  estate  of  the  deceased 
trustee.  Upon  motion  that  the  order  of  the 
court  might  be  altered  by  substituting  the  legal 
personal  representative  for  the  heir-at-law  of  the 
intestate  trustee  in  accordance  with  a  30  of  the 
Conveyancing  Act,  1881,  the  court  made  a  new 
order  that,  notwithstanding  the  previous  order, 
the  land  should  vest  in  the  new  trustees  "for all 
the  estate  therein  now  vested  in  the  legal  per- 
sonal representative  of  the  deceased  trustee." 
Pilling's  Trusts,  In  re,  26  Ch.  D.  432 ;  63  L.  J, 
Ch.  1052  ;  32  W.  R.  853— Pearson,  J. 


Form   of  Vesting  Order.]— In  1883  a 


lease  for  three  lives  of  a  certain  manor  was 
granted  to  A.,  B.,  and  C,  subject  to  the  trust* 
declared  by  the  will  of  a  testator.  C.  survived 
his  co-trustees  A.  and  B.,  but  afterwards  died 
intestate  as  to  the  trust  property.  C.  left  a 
brother,  D.,  who  died  intestate,  leaving  co- 
heiresses. A  petition  was  presented  for  the 
appointment  of  new  trustees  of  the  lease  and  a 
vesting  order.  A  question  theu  arose  as  to  the 
persons  in  whom  the  lease  would  be  legally 
vested  and  the  proper  wording  of  the  vesting 
order.  It  was  sought  to  amend  the  petition  hr 
varying  the  proposed  vesting  order  so  as  to 
vest  the  manor  in  the  new  trustees  "for  the 
same  estate  as  C.  would  have  had  if  he  had 
been  alive,"  and  reference  was  made  to  the  form 
in  Seton  (vol.  1,  p.  539)  :— Held,  that  no  tarn 
ought  to  be  adopted  in  which  the  heir  was  not 
named,  except  in  cases  where  it  was  in  fact 
inconvenient  or  impossible  to  identify  the  heir ; 
and  that  the  court,  on  a  broad  view,  ought  to 
regard  the  fact  that  the  estate  might  have  been 
dealt  with,  since  the  death  of  the  last  surviving 


1905 


TRUST    AND    TRUSTEE. 


1906 


trustee  in  such  a  way  that  parties  not  before 
the  court  might  be  prejudiced  by  a  Testing  order 
in  the  form  proposed.  Bat  held,  that  under  the 
circumstances  of  the  case  and  the  court  being 
satisfied  that  no  parties  could  be  prejudiced, 
the  Testing  order  might  be  made  in  the  form 
proposed.  Sarum  (Bishop  of),  In  re,  65  L.  T. 
313— Chitty,  J. 

Intestacy— Escheat.]— Where  the  Crown  has 
become  entitled  to  the  whole  of  the  trust  estate 
of  a  testator,  and  also  to  a  part  of  the  beneficial 
interest  therein,  the  court  cannot,  upon  an 
application  under  the  Trustee  Acts  for  the 
appointment  of  new  trustees  of  the  will  and  a 
Testing  order,  make  a  Testing  order  against  the 
Crown,  but  an  application  must  be  made  to  the 
court  under  s.  5  of  the  Intestates'  Estates  Act, 
1884.  Pratt's  Trusts,  In  re,  55  L.  T.  313  ;  34 
W.  R.  757— Chitty,  J. 

Absconding  Trustee — Sexual  to  join  in 
Appointment.]  —  The  persons  having  power  to 
appoint  new  trustees  of  a  marriage  settlement, 
Tiz.,  the  husband  and  wife,  appointed  a  new 
trustee  in  the  place  of  one  who  had  absconded 
abroad,  and  jointly  with  the  continuing  trustee. 
The  trustee  who  had  absconded  declined  to  join 
in  the  appointment,  and  to  execute  the  necessary 
transfers.  The  property  subject  to  the  trusts  of 
the  settlement  consisted  of  policies  of  insurance 
and  mortgages.  It  became  therefore  imprac- 
ticable, having  regard  to  sub-s.  3  of  s.  34  of  the 
Conveyancing  Act,  1881,  to  Test  such  property  in 
the  trustees  without  the  assistance  of  the  court. 
A  petition  for  a  Testing  order  was  accordingly 
presented,  under  the  Trustee  Acts,  1850  and 
1852,  by  the  husband  and  wife  and  the  continu- 
ing trustee  : — Held,  that  the  order  asked  for 
might  be  made ;  but  that  the  petition  must  be 
amended  by  adding  the  name  of  the  proposed 
new  trustee  as  a  co-petitioner.  Keeley's  Trusts, 
In  re,  53  L.  T.  487— Kay,  J. 

Absconding  Liquidator — Appointment  of 

lew  Liquidator.]— After  an  order  had  been 
made  for  the  compulsory  winding-up  of  a  com- 
pany A.  B.  was  appointed  official  liquidator. 
A  B.  afterwards  absconded,  and  he  was  removed 
from  the  post  of  official  liquidator,  and  in  his 
place  C.  D.  was  appointed  official  liquidator.  It 
was  found  that  a  sum  of  consols,  part  of  the 
assets  of  the  company,  was  standing  in  A.  B.'s 
name  as  official  liquidator.  An  application,  under 
the  Trustee  Act,  1850,  ss.  22  and  43,  was  there- 
fore made  by  motion  ex  parte  for  an  order  to 
Test  such  sum  of  consols  in  C.  D.  as  official  liqui- 
dator. A.  B.  had  become  bankrupt  and  could 
not  be  found  : — Held,  that  the  court  had  juris- 
diction to  make  the  order  asked  for  upon  motion ; 
but  that,  except  in  simple  cases  like  the  present, 
the  application  should  be  made  by  petition  : — 
Held,  also,  that  the  order  asked  for  should  be 
made,  but  not  drawn  up,  within  a  week,  and 
that  the  trustee  in  bankruptcy  of  the  absconding 
liquidator  should  forthwith  be  served  with  notice 
of  the  order.  Capital  Fire  Insurance  Association, 
In  re,  55  L.  T.  633— Chitty,  J.  See  also  Ilulme's 
Trusts,  In  re,  infra. 

11  Trustee,"  who  is— Infant— Maintenance- 
Appointment  of  Guardian.] — Under  the  will  of 
her  father  (a  domiciled  Scotchman,  who  made 
his  will  in  the   Scotch  form),  an  infant  was 


entitled  to  a  legacy.  The  will  contained  no 
express  trust  for  maintenance.  The  Court  of 
Session  in  Scotland  appointed  a  curator  bonis  to 
the  infant,  who  received  the  legacy,  and  invested 
it  in  the  purchase  of  some  New  Zealand  stock, 
in  the  sole  name  of  the  infant.  This  stock  was. 
transferable  at  the  Bank  of  England.  It  was 
the  only  property  of  the  infant,  and  the  income 
derived  from  it  was  not  sufficient  to  proTide  for 
her  maintenance  and  education.  The  Court  of 
Session  authorised  the  curator  bonis  to  advance 
from  time  to  time  sums  out  of  capital,  not  ex- 
ceeding in  all  100Z.,  for  the  purpose  of  supple- 
menting the  income  of  the  infant,  and  enabling 
her  to  be  placed  at  a  suitable  school.  The  curator 
bonis  as  next  friend,  presented  a  petition,  asking 
that  the  right  to  transfer  1001.  of  the  New  Zealand 
stock  might  vest  in  him,  and  that  he  might  be 
at  liberty  to  sell  and  transfer  the  same,  and  to 
apply  the  proceeds  in  or  towards  the  maintenance 
or  education  of  the  infant ;  that  the  dividends 
which  had  accrued,  and  which  might,  during  the 
minority  of  the  infant,  accrue  on  the  stock,  or 
on  the  residue  thereof  after  the  transfer,  might 
be  paid  to  him,  he  undertaking  to  apply  them  in 
or  towards  the  maintenance  or  education  of 
the  infant;  and  that  he  might  be  appointed 
guardian : — Held,  that  the  infant  was  a  "  trustee  '* 
of  the  stock,  within  the  meaning  of  the  Trustee 
Acts,  and  an  order  was  made  vesting  the  right  to 
transfer  100/.  of  the  stock  in  the  next  friend 
(who  was  appointed  guardian  to  the  infant),  and 
liberty  was  given  to  him  to  sell  and  transfer  the 
same,  and  to  apply  the  proceeds  in  or  towards 
the  maintenance  or  education  of  the  infant ;  and 
that  the  dividends,  accrued  and  to  accrue  during 
the  minority  of  the  infant,  should  be  paid  to  the 
guardian,  he  undertaking  to  apply  them  in  or 
towards  her  maintenance  or  education.  Gardner 
v.  Cowlcs  (3  Ch.  D.  304)  followed.  Findlay,In 
re,  32  Ch.  D.  221,  641  ;  55  L.  J.,  Ch.  895— 
North,  J. 


Contract  for  Sale  of  Realty— Death  of 


Vendor  before  Completion.] — By  an  order  under 
the  Lunacy  Regulation  Act,  1862,  the  guardians 
of  the  poor  of  N.  were  authorised  to  sell  a  free- 
hold belonging  to  A.  C,  a  person  of  unsound 
mind,  and  to  receive  the  purchase-money  and 
I  execute  a  conveyance.  The  property  was  sold 
:  in  May,  1885,  the  sale  to  be  completed  in  Novem- 
'  ber.  An  abstract  of  title  was  delivered,  and  no- 
objection  was  taken  to  the  title.  On  the  28th 
of  June  A.  C.  died.  The  guardians  now  pre- 
sented a  petition,  asking  that  A.  C.  might  be 
declared  a  trustee  within  the  meaning  of  the 
Trustee  Act,  1850,  and  that  their  clerk  might  be 
appointed  a  trustee  of  the  property  and  the 
estate  vested  in  him  in  trust  to  complete  the 
sale  : — Held,  that  A.  C.  could  not  be  held  a 
trustee  within  the  meaning  of  the  Trustee  Act, 
1850,  and  that  the  order  could  not  be  made. 
Carpenter,  In  re  (Kay,  418)  approved.  Colling, 
In  re,  32  Ch.  D.  333  ;  55  L.  J.,  Ch.  486  ;  54  L.  T. 
809 ;  34  W.  R.  464— C.  A. 

Covenant  to  surrender  Copyholds  to  Uses  of 
Marriage  Settlement.  ] — By  their  marriage  settle- 
ment, husband  and  wife  covenanted  with  the 
trustee  to  surrender  copyholds  of  the  wife  to 
the  uses  of  the  settlement.  The  marriage  was 
solemnised,  but  the  wife  died  without  ever 
having  surrendered  the  copyholds,  and  upon  her 
death  they  became  vested  in  the  youngest  child 


1907 


TKUST    AND    TRUSTEE. 


1908 


of  the  marriage  as  her  customary  heir.  Upon  a 
petition  presented  by  the  trustee  of  the  settle- 
ment, the  eldest  child,  who  was  of  age,  and  the 
other  children  of  the  marriage,  infants,  by  their 
father  and  next  friend,  it  was  ordered  by  the 
court  that  the  copyholds,  without  any  surrender 
or  admittance,  should  vest  in  the  trustee  of  the 
settlement  upon  the  trusts  of  the  settlement  for 
all  estate  of  the  customary  heir.  Bradley** 
Settled  Estate,  In  re,  54  L.  T.  43  ;  34  W.  K.  148 
— Chitty,  J. 

"  Seised  Jointly  "—Coparceners.  ] — The  words 
"seised  jointly"  in  s.  10  of  the  Trustee  Act, 
1850,  are  not  limited  strictly  to  a  legal  joint 
tenancy,  but  are  used  in  the  widest  sense,  and 
they  include  the  case  of  land  vested  in  copar- 
ceners, one  of  whom  is  out  of  the  jurisdiction 
of  the  court.  Temple r1 's  Trusts,  In  re  (4  N.  R. 
494),  and  McMurray  v.  Spirrr  (5  L.  R.,  Eq. 
527),  considered.  Greenwood's  Trusts,  In  re,  27 
Ch.  D.  359  ;  54  L.  J.,  Ch.  623  ;  51  L.  T.  283 ;  33 
\V.  R.  342— Pearson,  J. 

Agreement  to  grant  Building  Leases — Cove- 
nant for  Quiet  Enjoyment.]— The  defendant 
agreed  to  grant  to  the  plaintiff  leases  of  houses 
built  by  the  plaintiff  on  the  defendant's  land. 
Before  leases  were  granted  the  defendant  be- 
■came  of  unsound  mind,  though  he  had  not  been 
so  found  by  inquisition,  nor  had  any  committee 
of  his  estate  been  appointed.  In  an  action  for 
specific  performance,  the  defendant  offered  to 
submit  to  a  decree,  and  to  have  himself  declared 
a  trustee  for  the  plaintiff  under  the  Trustee  Act, 
1850,  and  to  have  a  person  appointed  to  execute 
the  leases  on  his  behalf,  or  to  have  the  houses 
vested  in  the  plaintiff  on  the  terms  of  the  agree- 
ment : — Held,  that  the  proposed  order  would 
vest  a  legal  term  in  the  plaintiff  pursuant  to  the 
contract,  but  would  not  give  him  the  benefit  of 
the  express  covenant  for  quiet  enjoyment. 
Cowper  v.  Harmer,  57  L.  J.,  Ch.  460 ;  57  L.  T. 
714— Stirling,  J. 

No     New    Trustee— Jurisdiction.]— A    new 

trustee  was  appointed,  under  a  power,  in  place 
of  a  trustee  who  had  become  incapable : — Held, 
that  there  was  no  jurisdiction  under  the  Trustee 
Acts  to  reappoint  the  new  trustee  and  vest  the 
.trust  estate  in  the  continuing  trustees  and  the 
new  trustee.  Dagleish's  Settlement,  In  re  (4 
Ch.  D.  143)  overruled.  Dewhirsfs  Trusts,  In 
re.  33  Ch.  D.  416  ;  55  L.  J.,  Ch.  842  ;  55  L.  T. 
427  ;  35  W.  R.  147— C.  A.  See  also  Batho,  In 
re,  ante,  col.  1903. 

Where  there  is  no  doubt  that  existing  trustees 
of  an  instrument  have  been  duly  constituted, 
the  court  will  not  reappoint  them,  with  a  view 
to  making  under  the  Trustee  Act,  1850,  s.  34,  a 
vesting  order  which  will  not  sever  the  joint 
tenancy.  Pearson,  In  re  (5  Ch.  D.  982)  not 
followed.  Vieat,  In  re,  33  Ch.  D.  103  ;  55  L.  J., 
Ch.  843,  n. ;  54  L.  T.  891  ;  34  W.  li.  645—C.  A. 

A.,  B.,  and  C.  were  named  trustees  in  a  will. 
A.  died,  B.  became  of  unsound  mind,  and  C.  ap- 
pointed £.  and  F.  trustees  in  the  place  of  A. 
and  B.  Part  of  the  trust  estate  consisted  of  a 
mortgage  of  freeholds.  The  appointment  of 
£.  and  F.  being  unquestionably  valid,  the  court 
refused  to  reappoint  them  and  make  an  order 
vesting  the  mortgage  estate  in  C,  E.  and  F.,  but 
made  an  order  appointing  0.  in  the  place  of  B. 


to  convey  the  mortgaged  property  for  the  estate 
of  himself  and  B.  to  himself,  £2.,  and  F.  upon  the 
trusts  of  the  will.    lb. 

One  of  two  trustees  was  convicted  of  felony 
and  sentenced  to  penal  servitude,  and  upon  an 
application  to  the  Palatine  Court  a  new  trustee 
was  appointed,  jointly  with  the  remaining 
trustee.  The  trust  property  consisted  of  land 
partly  within  and  partly  without  the  jurisdiction 
of  the  Palatine  Court  On  the  appointment  of 
the  new  trustee,  the  Palatine  Court  made  an 
order,  vesting  such  part  of  the  land  as  lay  within 
that  court's  jurisdiction  in  the  new  trustee  and 
the  remaining  trustee.  A  petition  was  then 
presented  to  this  court,  asking  for  an  order 
vesting  the  remaining  land  in  the  new  trustee 
and  the  remaining  trustee.  The  evidence  showed 
that  the  convict  trustee  could  not  be  found: 
— Held,  that  inasmuch  as  there  was  no  appoint- 
ment of  new  trustees  to  be  made  on  the  present 
petition,  no  vesting  order  could  be  made  under 
8.  8  of  the  Trustee  Extension  Act,  1852,  having 
regard  to  the  decision  of  Beiohvrst's  Trusts,  In 
re  (33  Ch.  D.  416).  But  held,  that,  as  there  was 
sufficient  evidence  that  the  convict  trustee  could 
not  be  found,  the  court  had  jurisdiction,  under 
8.  10  of  the  Trustee  Act,  1850,  to  make  a  vesting 
order,  and  would  accordingly  make  such  an 
order.  Hulmtfs  Trusts,  In  re,  57  L.  T.  13— 
Chitty,  J. 


Continuing  Trust.]— It    is  the  settled 


practice  of  the  court  under  the  Trustee  Acts, 
when  there  is  a  continuing  trust,  not  simplj  to 
remove  or  discharge  a  trustee,  without  appoint- 
ing a  new  trustee  in  his  place,  by  appointing  the 
remaining  trustees  to  be  sole  trustees  in  place  of 
themselves  and  him.  And  though  the  court 
will  deviate  from  this  rule  and  make  6uch  au 
appointment  if  the  trustees  have  no  duty  to 
perform  but  to  distribute  a  fund  which  is  imme- 
diately divisible,  it  will  adhere  to  the  ordinary 
rule  if  there  is  a  continuing  trust  as  regards 
even  a  relatively  small  part  of  the  trust  fond. 
Lamb's  Trusts,  In  re,  28  Ch.  D.  77  ;  54  L.  J.,Ch. 
107  ;  33  W.  R.  163— Pearson,  J. 

Although,  where  one  of  the  trustees  of  a  trust 
fund  becomes  lunatic,  the  court  will  not  in 
general  vest  the  right  to  deal  with  the  trust 
funds  in  the  trustees  of  sound  mind,  but  will 
require  a  new  trustee  to  be  appointed  in  the 
place  of  the  lunatic,  an  order  vesting  the  right 
to  the  fund  in  the  trustees  of  sound  mind  will  be 
made  where  the  fund  is  immediately  divisible. 
Martyn,  In  re,  ToutVs  Will,  In  re,  26  Ch.  D.  745 ; 
54  L.  J.,  Ch.  1016  ;  50  L.  T.  552  ;  32  W.  R  734 
— C.  A. 

Where  one  of  three  trustees  was  an  absconding 
bankrupt,  the  court  refused,  notwithstanding 
evidence  of  great  difficulty  in  getting  a  third 
person  to  act  as  trustee,  to  appoint  the  solvent 
trustees  in  place  of  themselves  and  the  bank- 
rupt, and  to  make  an  order  vesting  the  trust 
estate  in  the  solvent  trustees  alone,  on  the 
ground  that  the  court  will  not  reduce  the 
number  of  trustees  of  a  continuing  trust;  and 
also  that  there  is  no  power  to  appoint  existing 
trustees  to  be  new  trustees.  Gardiner's  Trusts, 
In  re,  33  Ch.  D.  590  ;  56  L.  J.,  Ch.  714 ;  55  L.  T. 
261 ;  35  W.  R.  28— North,  J. 


Bpeoial  Cireumitanoes.1 — One  of  the  four 


trustees  of  a  settlement  having  been  adjudicated 


1909 


TRUST    AND    TRUSTEE. 


1910 


a  bankrupt  and  having  absconded,  an  action  was 
brought  by  one  of  the  cestuis  que  trust  against 
the  other  three  trustees  claiming  to  have  the 
trusts  carried  into  execution,  and  to  have  it 
declared  that  the  defendants  were   bound  to 
make  good  any  loes  which    might  accrue  on 
three  mortgages  on  which   part  of    the  trust 
funds  had  been  invested,  and  which  the  plain- 
tiff alleged  to  be  insufficient  securities.     He 
also  alleged  that  the  fourth  trustee  had  acted 
fraudulently.    The  legal  estate  in  the  mortgaged 
properties  was  vested  in  all  the  four  trustees, 
and  the  stocks,  in  which  the  remainder  of  the 
trust  funds   had   been  invested,  stood  in  the 
names  of  the  four  trustees.    Before  issue  was 
joined  in  the  action  the  defendants,  in  pursuance 
of  an  order  of  the  court,  gave  notice  to  call  in 
two  of  the  mortgages,  and  one  of  the  notices 
had  expired.    Owing  to  the  pendency  of  the 
action  no  one  could  be  found  willing  to  accept 
the  trusts  in  place  of   the  bankrupt: — Held, 
that  under  these  circumstances,  the  court  could 
properly  appoint  the  defendants  trustees  in  the 
place  of  themselves  and  the  bankrupt.  An  order 
was  accordingly  made  appointing  the  defendants, 
and  vesting  in  them  the  mortgaged  properties, 
and  the  right  to  sue  for  and  receive  the  mort- 
gage debts,  and  to  call  for  a  transfer  of,  and  to 
transfer,  the  stocks  into  their  own  names,  and 
to  receive  the  dividends  thereon,  the  defendants 
to  pay  into  court  tbe  mortgage  money  when 
received.    Daties  v.  Hodgson,  32  Ch.  D.  225— 
North,  J. 

By  a  settlement  made  in  1859  four  trustees 
▼ere  appointed,  one  of  whom  disclaimed.  The 
existing  three  trustees  desired  to  retire,  and  in 
the  events  that  had  happened  the  power  to  ap- 
point new  trustees  contained  in  the  settlement 
wasnotexerciseable.  A  petition  was  accordingly 
presented  for  the  appointment  of  three  new  trus- 
tees in  placo  of  the  three  who  had  acted  and  now 
wished  to  retire.  Great  difficulty  was  found  in 
obtaining  the  consent  of  other  persons  to  act  as 
trustees,  and  this  was  alleged  as  a  ground  for  the 
application  that  three  new  trustees  should  be 
appointed  in  the  room  of  the  original  four : — 
Held,  that  on  an  appointment  of  new  trustees 
by  the  court,  assuming  it  was  necessary  to  prove 
special  circumstances  to  enable  the  court  to 
appoint  three  new  trustees  when  there  had 
originally  been  four  trustees,  tbe  disclaimer  by 
one  and  the  difficulty  of  obtaining  new  trustees 
constituted  special  circumstances.  Whether 
special  circumstances  were  actually  necessary 
to  be  shown,  quaere.  Fowler's  Trusts,  In  re,  55 
X.  T.  546— Chitty,  J. 


2.     PRACTICE  AS  TO. 

Form  and  Contents  of  Petition.]— A  petition 
presented  under  the  Trustee  Act  should  mention 
the  sections  under  which  it  is  proposed  that  the 
order  asked  for  should  be  made.  HalVs  Settle- 
ment Trusts,  In  re,  58  L.  T.  76— Kay,  J. 

Petitions  under  the  Trustee  Acts  should  con- 
tain a  statement  indicating  the  particular  sec- 
tions of  the  acts  under  which  the  court  is  asked 
to  make  an  order.  Moss's  Trusts,  In  re,  37  Ch.  D. 
513 ;  67  L.  J.,  Ch.  423  ;  58  L.  T.  468  ;  36  W.  R. 
316-Kay,  J. 

Originating  Summons  —  Jurisdiction.]  — The 
court  has  no  jurisdiction,  upon  an  originating 


summons  in  chambers,  to  make  an  order  appoint- 
ing new  trustees,  and  vesting  in  them  the  trust 
estate.  Gill,  In  re,  Smith  v.  Gill,  53  L.  T.  623  ; 
34  W.  R.  134— Kay,  J. 

Infant  Heir  of  surviving  Trustee — 8ervice  of 
Petition.] — A  petition  for  vesting  in  beneficiaries 
lands  of  which  the  legal  estate  had  descended  to 
the  infant  heir  of  the  last  surviving  trustee, 
ordered  to  be  served  on  the  infant.  Adams' 
Trusts,  In  re,  57  L.  T.  337  ;  35  W.  R.  770— 
Kay,  J. 

81ip  —  8econd  Petition  —  Further  Vesting 
Order.] — An  order  was  made,  upon  a  petition, 
appointing  new  trustees  of  the  will  of  a  testator, 
and  vesting  in  them  the  property  mentioned  in 
the  petition,  subject  to  the  trusts  of  the  will. 
After  the  order  had  been  drawn  up,  passed,  and 
entered,  it  was  discovered  that  one  part  of  the 
trust  property  had  been  inadvertently  omitted 
in  the  order,  and  another  part,  by  an  accident, 
had  not  been  mentioned  in  the  petition.  The 
new  trustees  were  not  able,  therefore,  to  obtain 
a  transfer  of  such  property  into  their  own  names. 
A  second  petition  was  accordingly  presented  by 
the  same  persons,  who  were  the  petitioners  in  the 
first  petition.  Ss.  22  and  35  of  the  Trustee  Relief 
Act  were  referred  to  as  giving  jurisdiction  to  the 
court  to  make  a  further  order.  The  court  made 
an  order  vesting  in  the  new  trustees  all  the  pro- 
perty which  had  been  omitted,  and  directing  the 
costs  of  the  application  to  be  paid  out  of  the 
trust  estate.  Iiopj?er's  Trusts,  In  re,  54  L.  T. 
267  ;  34  W.  R.  392— Chitty,  J. 

In  Chambers — Bight  to  Transfer  Stock.] — On 

a  petition  for  the  appointment  of  new  trustees 
and  a  vesting  order,  an  order  was  made  in  court 
on  the  28th  of  June,  1884,  that  two  or  more 
proper  persons  should  be  appointed  trustees,  and 
that  an  inquiry  should  be  made  of  what  the  trust 
funds  consisted ;  and  the  parties  were  to  be  at 
liberty  to  apply  in  chambers  for  an  order  to  vest 
the  trust  property  in'  the  new  trustees  when 
appointed.  On  the  22nd  of  July,  before  any 
certificate  as  to  the  trust  funds  had  been  made, 
an  order  was  made  in  chambers  appointing  new 
trustees,  and  directing  that  the  right  to  call  for 
a  transfer  of,  and  to  transfer  into  their  own 
names,  certain  sums  of  stock  specified  in  the 
order  "  may "  vest  in  the  new  trustees.  This 
order  mentioned,  but  did  not  recite,  the  order  of 
the  28th  of  June.  The  Bank  of  England  refused 
to  act  on  it,  and  Bacon,  V.-C,  on  the  28th  of 
November,  made  an  order  directing  them  to  do 
so.  The  bank  appealed  : — Held,  that  the  matter 
having  been  properly  brought  before  the  court 
on  petition,  the  judge  had  power,  under  the  pro- 
visions of  the  Masters  Abolition  Act,  1852  (15  & 
16  Vict.  c.  80),  to  dispose  in  chambers  of  such 
parts  of  the  matters  brought  before  him  on  the 
petition  as  he  thought  could  be  more  conveniently 
disposed  of  in  chambers  than  in  court,  and  that 
there  was  therefore  jurisdiction  to  make  the 
order  of  the  22nd  of  July.  Frodsham  v.  Frods- 
ham (15  Ch.  D.  317)  distinguished.  Tweedy.  In 
re,  28  Ch.  D.  529  ;  54  L.  J.,  Ch.  331 ;  52  L.  T.  65  ; 
33  W.  R.  313— C.  A. 

But  held,  that  the  order  was  so  irregular  in 
form  that  the  bank  were  justified  in  declining 
to  act  upon  it,  they  being  entitled  to  require  a 
vesting  order  to  be  in  such  a  form  as  to  show 
that    the    statutory   requirements    have    been 


1911 


TRUST    AND    TRUSTEE. 


1912 


satisfied.  Statement  of  the  recitals  which  ought 
to  be  contained  in  a  vesting  order  made  in 
chambers  under  the  Trustee  Act.    lb. 


V.  APPOINTMENT  AND  BEHOVAL  OF 

TRUSTEES. 

1.    EXERCISE  OF  POWER. 

Recital  in  Deed.] — A  will  contained  a  power 
for  the  trustees  or  trustee  thereof  to  appoint 
new  trustees.  The  trust  property  comprised 
a  renewable  release.  After  the  death  of  the 
testator  a  renewal  of  the  lease  was  granted  to 
four  persons,  who  had  not  been  appointed 
trustees  of  the  will,  but  who  in  the  lease 
granted  to  them  were  described  as  "the  pre- 
sent trustees"  of  the  will.  The  surviving 
trustee  and  executor  of  the  will  was  a  party  to 
this  deed,  and  the  demise  was  expressed  to  be 
made  by  his  direction  : — Held,  on  the  authority 
of  Paulson  v.  Wellington  (2  P.  Wms.  533),  that 
this  statement  in  the  renewed  lease  operated  as 
an  appointment  of  the  four  lessees  to  be  trustees 
of  the  will.  FarnelVt  Settled  Estates,  In  re, 
33  Ch.  D.  599 ;  35  W.  R.  250— North,  J. 

During  Pendency  of  Administration  Action.] — 

After  judgment  in  an  action  for  the  administra- 
tion of  the  trusts  of  a  will,  the  person  having  by 
the  terms  of  the  will  or  by  statute  the  power  of 
appointing  new  trustees,  retains  such  power  so 
far  as  it  does  not  conflict  with  the  order  which 
has  been  made,  but  subject  to  the  control  of  the 
court ;  and  the  proper  course  is  for  such  person, 
before  exercising  the  power,  to  submit  the  name 
of  the  proposed  new  trustee  to  the  chief  clerk  in 
chambers  for  approval.  Hall,  In  re,  Hall  v. 
Hall,  54  L.  J.,  Ch.  527  ;  51  L.  T.  901 ;  33  W.  R. 
608 — Pearson,  J. 

Refusal  of  Sole  Trustee  to  appoint  Co-trustee.  ] 
— A  sole  continuing  trustee  under  a  will  which 
contained  a  power  to  appoint  new  trustees 
so  worded  as  to  contemplate  the  possibility  of 
there  being  a  sole  trustee,  was  held  justified  in 
refusing  to  appoint  a  co-trustee  with  himself, 
although  required  to  do  so  by  a  cestui  que  trust ; 
and  a  trust  fund  which,  under  an  order  of  the 
court  below,  he  had  paid  into  court,  was  ordered 
to  be  paid  out  to  him  alone.  Peacock  v.  Colling, 
64  L.  J.,  Ch.  743  ;  53  L.  T.  620  ;  33  W.  R.  528— 
C.A. 

Person  to  exercise  Power.]  —  A  settlement 
executed  in  1878  contained  no  express  power  to 
appoint  new  trustees,  but  there  was  a  declaration 
that  the  husband  and  wife  during  their  joint 
lives,  and  the  survivor  of  them  during  his  or  her 
life,  "  shall  have  power  to  appoint  new  trustees 
or  a  new  trustee  for  this  settlement."  There 
was  no  express  reference  to  the  power  of  appoint- 
ing new  trustees  conferred  by  s.  27  of  Lord 
Cranworth's  Act,  which  was  then  in  force  : — 
Held,  that  after  the  commencement  of  the  Con- 
veyancing Act,  1881,  the  husband  and  wife  were 
the  proper  persons  to  exercise  the  power  con- 
ferred by  s.  31  of  that  act  of  appointing  a  new 
trustee  in  place  of  one  of  the  trustees  who  had 
remained  out  of  the  United  Kingdom  for  more 
than  twelve  months,  though  s.  27  of  Lord  Cran- 
worth's  act  did  not  provide  for,  and  the  parties 


when  they  executed  the  settlement  probably  did 
not  contemplate,  the  occurrence  of  a  vacancy  in 
that  event.  Walker  and  Hughes'  Contract,  lure* 
24  Ch.  D.  698 ;  53  L.  J.,  Ch.  135 ;  49  L.  T.  597 
— North,  J. 


Alienation  of  Interest  by  Donee  of  Power.] 


— A  power  to  appoint  new  trustees  may  be 
exercised  by  a  tenant  for  life  after  alienating  his 
interest.  By  a  settlement,  property  partly  real 
and  partly  personal  was  conveyed  to  trustees 
upon  trust  to  provide  an  annuity  for  A.,  a  widow, 
for  life,  and  subject  thereto,  for  B.,  her  son,  abso- 
lutely. The  settlement  provided  that  B.  during 
his  life,  and  after  his  death  the  trustees  or  trustee 
for  the  time  being,  or  the  executors  or  adminis- 
trators of  the  last  acting  trustee,  should  hare 
power  to  appoint  new  trustees,  if  necessary.  B. 
mortgaged  his  whole  interest  under  the  settle- 
ment, and  the  real  estate  (subject  to  A/s  annuity) 
was  sold  by  the  mortgagees  to  C.  The  personal 
estate  was  not  sold  by  the  mortgagees :— Held, 
that  B.  could  still  exercise  the  power  to  appoint 
new  trustees,  without  the  consent  of  C. 
Hardaker  v.  Moorlwuse,  26  Ch.  D.  417;  53 
L.  J.,  Ch.  713  ;  50  L.  T.  554 ;  32  W.  R.  638- 
North,  J. 

Provision  in  Private  Act — Approbation  of  th» 
Court.]  —A  private  act,  passed  in  the  year  1869, 
enacted  that  s.  27  of  Lord  Cranworth's  Act 
should  be  deemed  and  taken  to  apply  to  the 
trusteeship  of  the  "  Manchester  estates"  com- 
prised therein;  "provided  that  every  new 
trustee  of  the  said  estates  shall  be  appointed 
with  the  approbation  of  the  Court  of  Chancery." 
In  the  year  1886,  a  deed  was  executed  by  the 
continuing  trustees  appointing  new  trustees 
under  the  power  "  vested  in  them  by  statute." 
This  deed  contained  the  usual  declaration  rest- 
ing the  estates  in  the  new  trustees ;  but  the 
appointment  was  not  made  with  the  approba- 
tion of  the  court : — Held,  that  the  deed  must  be 
construed  as  if  the  special  provision  contained 
in  the  private  act  had  formed  part  of  Lord 
Cranworth's  Act ;  that,  as  Lord  Cranworth's 
Act  had  been  repealed,  the  court  could  not  add 
that  special  provision  to  the  general  power  of 
appointment  given  by  the  Conveyancing  Act,. 
1881 ;  and  that,  therefore,  the  new  trustees  were 
well  appointed.  Lloyd's  Trustee*,  In  re,  57  L  J* 
Ch.  246— North,  J. 

Bemoval,  in  what  Cases.] — There  is  a  jurisdic- 
tion in  Courts  of  Equity  to  remove  old  trustee* 
and  substitute  new  ones  in  cases  requiring  such  a 
remedy.  The  main  principle  on  which  such  juris- 
diction should  be  exercised  is  the  welfare  of  the 
beneficiaries  and  of  the  trust  estate.  The  court 
below  refused  to  remove  certain  trustees  on  the 
application  of  the  cestui  que  trust  On  appeals- 
Held,  that  the  trustees  must,  in  the  special  cir- 
cumstances of  the  case,  be  removed  without  costs 
of  appeal,  the  appellant  having  persisted  in 
charges  of  fraud  which  the  evidence  did  not 
sustain.  Letterstedt  v.  Broert,  9  App.  Cat.  371 \ 
53  L.  J.,  P.  C.  44  ;  51  L.  T.  169— P.  C. 


2.    IN  WHAT  CASKS. 

Death  of  Sole  Trustee  in  Lifetime  of  Testator] 
— Where  a  sole  trustee  for  sale  of  a  will  bad 
died  in  the  lifetime  of  the  testator,  a  petition 


1913 


TRUST    AND    TRUSTEE. 


1914 


was  presented  by  the  administrator  of  the  testa- 
tor, and  the  executors  and  trustees  of  the 
trustee  of  the  will  who  had  died,  asking  for 
the  appointment  of  two  new  trustees  and  for  a 
Testing  order: — Held,  that  s.  31  of  the  Convey- 
ancing Act,  1881,  did  not  apply,  and  that  there- 
fore the  petition  was  necessary.  Ambler's  Trusts, 
1%  re,  59  L.  T.  210— Kay,  J. 

Representative  of  Sole  Trustee.]— The  power  of 
appointing  new  trustees,  given  by  s.  31  of  the  Con- 
veyancing Act,  1881,  to  "  the  personal  representa- 
tives of  the  last  surviving  or  continuing  trustee  '* 
includes  the  case  of  an  executor  of  a  sole  trustee. 
Skafto's  Trusts,  In  re,  29  Ch.  D.  247  ;  54  L.  J., 
Co.  885 ;  53  L.  T.  261 ;  33  W.  R.  728— Pear- 
son, J. 

The  representative  of  a  deceased  trustee  is  not 
bound  at  the  request  of  the  cestuis  que  trustent 
to  exercise  the  power  of  appointing  new  trustees 
given  by  the  Conveyancing  and  Law  of  Property 
Act,  1881,  and  the  refusal  to  do  so  is  not  a  suffi- 
cient reason  for  ordering  the  executors  to  pay 
the  costs  of  a  petition  for  the  appointment  of 
new  trustees.  Knight's  Trust,  or  Will,  In  re,  26 
Ch.  D.  82  ;  53  L.  J.,  Ch.  223  ;  49  L.  T.  774  ;  32 
W.  B.  336— Pearson,  J. 

"Continuing  Trustees  "—"  Contrary  Inten- 
tion "—Conveyancing  Act,  1881.  s.  31.]— On  a 

summons  under  the  Vendor  and  Purchaser  Act, 
1874,  an  objection  was  taken  by  a  purchaser 
from  trustees  that  au  appointment  of  one  of 
their  number,  under  the  power  given  by  s.  31 
of  the  Conveyancing  Act,  1881,  in  the  place  of  a 
trustee  who  had  been  abroad  for  more  than 
twelve  months,  was  invalid  because  that  trustee 
had  not  joined  in  making  the  appointment : — 
field,  that  there  being  no  evidence  that  the 
absent  trustee  was  either  willing  or  competent 
to  join  in  making  the  appointment,  the  objection 
conld  not  be  sustained.  Coatcs  to  Parsons,  In  re, 
34  Ch.  D.  370  ;  56  L.  J.,  Ch.  242  ;  56  L.  T.  16  ;  35 
W.  R.  375— North,  J. 

The  instrument  creating  a  trust  cannot  be 
taken  to  have  expressed  a  contrary  intention 
within  sub-s.  7  of  8.  31  of  the  Conveyancing  Act, 
1881,  merely  because  it  does  not  provide  for 
filling  up  a  vacancy  in  the  number  of  the 
trustees  upon  the  happening  of  an  event  not 
contemplated  by  the  parties  to  that  instrument. 

Consent  of  Persons  beneficially  Inte- 
rested.]— A  settlement  of  real  estate  of  which 
there  were  four  trustees,  provided  that  if  the 
trustees  thereby  appointed,  "or  any  future 
trustee  or  trustees  to  be  appointed  in  the  place 
of  them  or  any  of  them  as  hereinafter  mentioned," 
should  die  or  be  desirous  of  being  discharged, 
Ac,  it  should  be  lawful  for  "  the  surviving  or 
■continuing  trustee  or  trustees  for  the  time  being," 
with  the  consent  of  the  tenant  for  life  or  in  tail 
for  the  time  being  entitled  in  possession,  to 
appoint  a  new  trustee  or  new  trustees  in  the 
place  of  the  trustee  or  trustees  so  dying,  &c. 
In  1872,  four  new  trustees  were  appointed  under 
the  Trustee  Act,  1850,  in  the  place  of  two  de- 
ceased and  two  retiring  trustees.  After  this  a 
decree  was  made  for  carrying  the  trusts  of  the 
settlement  into  execution.  Two  of  the  trustees 
of  1872  being  dead,  and  another  desiring  to 
retire,  the  plaintiff,  who  was  an  infant  tenant 
in  tail  in  possession,  took  out  a  summons  to  ap- 


point new  trustees.  W.,  the  continuing  trustee, 
took  out  a  summons,  asking  that  he  might  be  at 
liberty  to  appoint  new  trustees.  A  reference  to 
chambers  being  directed,  W.  proposed  new  trus- 
tees whom  the  court  considered  to  be  proper 
persons,  but  to  whom  all  the  persons  beneficially 
interested  objected : — Held,  that  the  persons 
nominated  by  W.  must  be  appointed,  though  the 
tenant  in  tail  in  possession  did  not  consent,  for 
that  as  the  power  in  the  settlement  only  applied 
to  filling  up  vacancies  in  the  number  of  original 
trustees,  or  trustees  appointed  under  the  power, 
it  had  come  to  an  end  when  new  trustees  were 
appointed  by  the  court  in  1872,  and  that  the 
fetter  imposed  by  the  settlement  on^he  exercise 
of  that  power  did  not  apply  to  the  new  power 
given  to  the  continuing  trustee  by  the  Convey- 
ancing and  Law  of  Property  Act,  1881,  which 
enabled  him  to  fill  up  vacancies  in  a  body  of 
trustees  not  coming  within  the  scope  of  the 
power  in  the  settlement.  Cecil  v.  Lang  dan,  28 
Ch.  D.  1  ;  54  L.  J.,  Ch.  313  ;  51  L.  T.  618 ;  33 
W.  R.  1— C.  A. 

Ee tiring  Trustee  joining  in  Appointment.] — 

Semble,  that  if  a  trust  deed  contained  a  power 
to  appoint  new  trustees  expressed  in  the  same 
words  as  sub-s.  1  of  s.  31,  without  anything 
more,  it  would  not  be  necessary  that  a  retiring 
trustee  should  join  in  the  appointment  of  his 
successor.  In  such  a  case  the  words  "  continuing 
trustee  "  would  mean  only  a  trustee  who  is  to 
continue  to  act  in  the  trusts  after  the  completion 
of  the  appointment.  Travis  v.  Illingworth  (2 
Dr.  &  Sm.  344),  and  Norris,  In  re  (27  Ch.  D.  333), 
approved.  Opinion  of  Bacon,  V.-C,  in  Olenny 
and  Hartley,  In  re  (25  Ch.  D.  611),  dissented 
from.     Coates  to  Parsons,  In.  re,  supra. 

A  trustee  who  has  made  up  his  mind  to  retire, 
may  be  a  "  continuing "  trustee,  until  he  has 
executed  the  deed  appointing  new  trustees. 
By  a  settlement  in  1867  (Lord  Cranworth's  Act 
having  been  passed  in  1860),  it  was  declared  that 
it  should  be  lawful  for  "  the  surviving  or  con- 
tinuing trustees,1'  in  the  event  of  any  trustees 
declining  to  act,  to  discharge  such  trustees,  and 
to  appoint  any  new  trustees  ;  and  it  was  provided 
that  nothing  should  authorise  the  discharge  of 
the  only  continuing  trustees  without  the  substi- 
tution of  others.  Of  three  original  trustees,  one 
having  died,  the  other  two  by  deed  in  1874,  after 
reciting  that  they  themselves  "  declined  to  act " 
and  "desired  to  be  discharged,"  and  had  "de- 
termined to  appoint "  three  other  persons  to  be 
trustees,  "in  exercise  of  the  power  for  this  pur- 
pose vested  in  them"  by  the  settlement,  appointed 
the  three  persons  "  to  be  trustees  in  the  place  of  " 
themselves  and  the  deceased  trustee  respec- 
tively : — Held,  that  the  appointment  was  good. 
Travis  v.  Illingioorth  (2  Dr.  &  Sm.  344)  not  fol- 
lowed. Glennyand  Hartley.  In  re, 25  Ch.  D.  611 ; 
53  L.  J.,  Ch.  417  ;  50  L.  T.  79  ;  32  W.  R.  457— 
V.-C.  B. 

When  a  power  of  appointing  new  trustees 
authorises  the  continuing  trustee  or  trustees  to 
appoint  a  new  trustee  or  trustees  in  the  place  of 
a  trustee  or  trustees  becoming  unwilling  to  act, 
an  appointment  by  a  sole  continuing  trustee,  in 
the  place  of  a  trustee  who  desires  to  retire,  is 
valid  ;  it  is  not  necessary  that  the  retiring  trus- 
tee should  join  in  making  the  appointment. 
Olenny  and  Hartley,  In  re  (25  Ch.  D.  611), 
commented  on.  Travis  v.  Illingioorth  (2  Dr.  & 
Sm.  344)  approved  and  followed.    JTorris,  In  re, 


1915 


TRUST    AND    TRUSTEE. 


191& 


Allen  v.  JYorris,  27  Ch.  D.  333  ;  53  L.  J.,  Ch. 
912  ;  51  L.  T.  593  ;  32  W.  B.  955— Pearson,  J. 

Separate  Sets  of  Trustees  for  distinct  Trusts.] 

— Under  the  trusts  of  a  will  different  parts  of 
the  testator's  property  were  subject  to  distinct 
trusts,  but  in  a  certain  event  the  trusts  would 
coalesce  : — Held,  that  there  was  power  to  appoint 
separate  sets  of  trustees  for  the  different  parts 
of  the  property.    Hetlwrington's  Trust*,  In  r<\ 

34  Ch.  D.  211  ;  56  L.  J.,  Ch.  174  ;  55  L.  T.  806  ; 

35  W.  R.  285— North,  J. 

Section  5,  sub-s.  1,  of  the  Conveyancing  Act, 
1882,  authorises  the  appointment  of  a  separate 
set  of  trustees  for  a  part  of  the  trust  property 
held  on  distinct  trusts  only  when  an  appoint- 
ment is  being  made  of  new  trustees  of  the 
whole  property.  It  does  not  enable  the  existing 
trustees  of  the  whole  property  to  retire  from  the 
trusts  as  to  part  by  means  of  an  appointment  of 
new  trustees  of  that  part.  Savile  v.  Couper,  36 
Ch.  D.  520  ;  56  L.  J.,  Ch.  980  ;  56  L.  T.  907  ;  35 
W.  R.  829— North,  J. 

A  testator  devised  properties  in  two  different 
parishes  in  strict  settlement  in  favour  of  different 
families,  and  appointed  two  trustees  of  the 
whole.  The  powers  entrusted  to  the  trustees 
were  very  wide.  One  trustee  having  died,  a  peti- 
tion was  presented  for  the  appointment  of  two 
new  trustees  to  act  with  the  surviving  trustee  as 
to  one  property  only  : — Held,  that  the  court  had 
power  to  make  the  appointment  under  the  Con- 
veyancing Act,  1882,  s.  5,  though  the  surviving 
trustee  was  trustee  for  both  properties.  Paine' s 
Trusts,  In  re,  28  Ch.  D.  725  ;  54  L.  J.,  Ch.  735  ; 
52  L.  T.  323  ;  33  W.  R.  564— Pearson,  J. 

Independently  of  8.  5  of  the  Conveyancing 
Act,  1882,  the  court  has  power  under  the  Trustee 
Acts  to  allow  trustees  to  retire  from  the  trusts 
of  a  part  of  the  trust  property,  held  upon  trusts 
distinct  from  those  affecting  the  remainder,  and 
to  appoint  a  separate  set  of  trustees  of  such  part. 
Savile  v.  Couper  (36  Ch.  D.  520)  considered. 
Moss's  Trusts,  In  re,  37  Ch.  D.  513  ;  57  L.  J.,  Ch. 
423  ;  58  L.  T.  468  ;  36  W.  R.  316— Kay,  J. 

Section  5,  sub-s.  1 ,  of  the  Conveyancing  Act,l  882. 
does  not  authorise  the  appointment  of  a  separate 
set  of  trustees  for  a  part  of  the  trust  property  held 
on  distinct  trusts,  except  on  an  appointment  of 
new  trustees  of  the  entire  property.  Nesbitt's 
Trusts,  In  re,  19  L.  R.,  Ir.  509— M.  R. 

Additional  Trustees — Trustee  Act,  1850,  s.  33.] 

— The  sole  trustee  of  a  will  who  had  acted, 
and  was  in  no  way  personally  disqualified  from 
continuing  to  act,  in  the  trusts,  was  desirous  of 
being  discharged  from  the  trusts  of  a  particular 
fund,  forming  portion  of  the  trust  property,  and 
had  expressed  his  intention  -of  lodging  Buch 
fund  in  court  unless  new  trustees  were  appointed 
in  respect  of  it,  whom  he  declined  to  appoint 
himself : — Held,  not  to  be  a  case  of  expediency 
for  the  appointment  of  additional  trustees  within 
8.  32  of  the  Trustee  Act,  1850.  Nesbitt's  Trusts, 
In  re,  19  L.  R.,  Ir.  509— C.  A. 

Under  s.  32  of  the  Trustee  Act,  1850,  the 
court  has  jurisdiction  to  appoint  an  additional 
trustee,  even  though  there  is  no  vacancy  in  the 
trusteeship.  JBraekenbury's  Trusts,  In  re  (10 
L.  R.,  Eq.  45)  followed.  Semble,  that  the  power 
conferred  by  sub-s.  2  of  s.  31  of  the  Conveyancing 
Act,  1881,  to  increase  the  number  of  trustees, 
"on  an  appointment  of  a  new  trustee,"  only 
arises  when  an  appointment  is  being  made  to 


supply  a  vacancy  in  the  trusteeship,  Grtgmt 
Trusts,  In  re,  84  Ch.  D.  209  ;  56  L.  J.,  Ch.286; 
35  W.  R.  286— North,  J. 

One  Trustee  a  Discharged  Bankrupt— lew- 
Trustee  substituted.] — One  of  the  two  trustees 
of  a  will  had  been  adjudicated  a  bankrupt,  bat 
had  obtained  his  discharge.  The  other  trustee 
who  was  beneficially  entitled  also  to  one-third  of 
the  trust  estate,  petitioned  fortheremoYalof  the 
trustee  who  had  been  bankrupt,  and  the  appoint- 
ment of  a  new  trustee.  The  application  was 
opposed  by  beneficiaries  entitled  to  greater  shares 
than  the  petitioner : — Held,  that  the  bankruptcy 
being  a  recent  one,  the  trustee  must  be  entirely 
impecunious  ;  and  that  it  was  expedient  under 
s.  147  of  the  Bankruptcy  Act,  1883,  to  appoint  a 
new  trustee  in  the  place  of  the  one  who  had  been 
bankrupt,  notwithstanding  that  he  had  obtained 
his  discharge.  Foster's  Trusts,  In  re,  55  L  T. 
479— Kay,  J. 

Lunatic — Consent  to  Appointment  by  Can- 
mittee.] — A  will  contained  a  power  of  appoint- 
ment  of  new  trustees  exercisable  with  the  consent 
of  the  tenant  for  life.  The  trustees  having  died, 
the  tenant  for  life  who  had  been  found  lunatic, 
presented  a  petition  in  Lunacy  and  Chancery  by 
the  committee  of  her  estate  as  next  friend  for  the 
appointment  of  new  trustees  : — Held,  that  there 
was  no  jurisdiction  in  lunacy  to  appoint  new 
trustees,  and  that  the  only  proper  application  is 
lunacy  was  to  ask  for  an  order  authorising  the 
committee  to  consent  on  behalf  of  the  lunatic  to 
an  appointment  of  trustees  under  the  power. 
Garrod,  In  re,  31  Ch.  D.  164  ;  65  L.  J.,Ch.  311; 
54  L.  T.  291 ;  34  W.  R.  157— C.  A. 


Denial  of  Lunacy — Jurisdiction.]  —The 


court  will  not,  on  a  petition  under  the  trustee 
Act,  1850,  remove  a  trustee  against  his  wish. 
Where  the  ground  for  a  petition  for  the  appoint- 
ment of  a  new  trustee  is  the  alleged  insanity  of 
a  trustee,  and  the  insanity  is  denied  by  him,  the 
court  will  not  try  the  question  whether  the 
trustee  is  of  sound  mind,  nor  will  it  (under 
8.  52)  direct  a  commission  in  the  nature  of  a 
writ  de  lunatico  inquirendo  to  issue  cancernin? 
such  person,  the  proper  mode  of  establishing  the 
lunacy  in  such  a  case  being  on  a  petition  in 
lunacy  or  in  an  action  in  the  High  Court  to 
remove  the  trustee.  Combs,  In  re,  51  L.  T.  45— 
C.A. 

"Person  of  Unsound  Mind."]— The  clause  in 
s.  2  of  the  Trustee  Act,  1850,  which  declares 
that  the  expression  "  person  of  unsound  mind 
shall  mean  "  any  person,  not  an  infant,  who,  not 
having  been  found  to  be  a  lunatic,  shall  be  in- 
capable from  infirmity  of  mind  to  manage  his 
own  affairs,"  must  be  construed  as  referring  to 
a  person  who,  although  not  found  a  lunatic  is 
nevertheless  in  such  a  state  of  mind  as  to  render 
him  liable  to  be  so  found  if  an  inquisition  were 
held  upon  him.  The  case  of  a  trustee  who  » 
from  great  age  and  its  infirmities  practically 
incapable  of  transacting  business  (though  not 
otherwise  of  unsound  mind)  is  within  s.  32  of 
the  Trustee  Act,  1850.  Phelps'  Settlement  Tnut*. 
In  re,  31  Ch.  D.  351 ;  55  L.  J.,  Ch.  465 ;  54  L.T. 
480— C.  A. 

A  paralytic  deprived  of  the  power  of  speech, 
and  unable  to  read  or  write  or  attend  to  bushiesi. 
hut  apparently  not  suffering  from  any  mental 


1917 


TEUST    AND    TRUSTEE. 


1918 


disease,  is  not  a  person  of  unsound  mind  within 
the  Trustee  Act,  1850.  Barber,  In  re,  39  Ch.  D. 
187 ;  57  L.  J.,  Ch.  756  ;  58  L.  T.  756  ;  37  W.  R. 
182— C.  A. 

A  person  is  of  "unsound  mind"  within  the 
meaning  of  the  Trustee  Act,  1850,  where  from 
permanent  incapacity  of  mind  he  is  incapable  of 
managing  his  affairs,  though  his  state  of  mind  is 
not  such  that  he  would  be  found  lunatic  on 
inquisition.  Phetys'  Settlement  Trusts,  In  re 
(31  Ch.  D.  351),  not  followed.  In  an  action  in 
the  Chancery  Division,  the  court  gave  a  judg- 
ment removing  a  trustee  of  unsound  mind,  and 
appointing  a  new  trustee  in  his  place,  but 
declined  to  make  an  order  under  s.  34  of  the 
Trustee  Act,  1850,  vesting  the  estate  in  the  new 
trustee,  considering  that  it  ought  to  be  applied 
for  in  Lunacy.  The  Lords  Justices  sitting  in 
Lunacy  made  the  vesting  order.  Martin's 
Trusts,  In  re,  34  Ch.  D.  618  ;  56  L.  J.,  Ch.  695  ; 
56  L  T.  241  ;  35  W.  R.  524— C.  A. 

Under  fettled  Land  Act] — See  Settlement. 

Policies  of  Insurance— Benefit  of  Wife  and 
Children.]— See  Insurance,  I.,  4. 


3.  WHO    APPOINTED    TRUSTEES. 

Interested  Parties.]— The  court  refused  to  ap- 
point as  trustee  the  remainderman  entitled  on 
the  death  of  an  infant  tenant  in  tail  in  posses- 
sion, the  powers  being  very  wide.  Paine' s 
Tnuts,  In  re,  28  Ch.  D.  725  ;  54  L.  J.,  Ch.  735 ; 
52  L.  T.  323  ;  33  W.  R.  564— Pearson,  J. 

The  original  trustees  of  a  will  being  dead,  a 
petition  was  presented  for  the  appointment  of 
new  trustees,  and  for  a  vesting  order.  The 
persons  proposed  to  be  appointed  were  both 
oeneficially  interested  under  the  will,  but  it  was 
found  impossible  to  obtain  the  services  of  in- 
dependent persons.  All  the  beneficiaries,  except 
one  who  was  abroad,  were  co-petitioners,  and 
were  desirous  that  the  persons  proposed  as 
trustees  should  be  appointed.  The  court  made 
the  order,  subject  to  an  undertaking  by  the  new 
trustees  that  if  either  became  sole  trustee  he 
would  use  every  endeavour  to  obtain  the  appoint- 
ment of  a  co-trustee  ;  and  dispensed  with  service 
on  the  absent  beneficiary.  Lightbody's  Trusts, 
In  re,  52  L.  T.  40  ;  33  W.  R.  452— Kay,  J. 

On  a  petition  for  the  appointment  of  a  new 
trustee  of  a  will  in  substitution  for  one  who  had 
died,  the  court  (declining  to  lay  down  any  hard- 
and-fast  rule  that  under  no  circumstances  will  a 
cestui  que  trust  and  one  of  the  donees  of  a  power 
to  appoint  new  trustees  be  appointed  as  trustee) 
directed  the  appointment  as  trustee  of  one  of 
several  persons  beneficially  interested  in  the  estate 
of  the  testator,  who  had  nominated  as  trustees 
of  his  will  persons  to  whom  he  had  given  bene- 
ficial interests,  and  on  their  death  or  retirement 
had  empowered  the  persons  beneficially  entitled 
for  the  time  being  "to  appoint  one  or  more 
persons  to  supply  the  vacancy."  Tempest  v. 
Camoys  (Zord),  58  L.  T.  221  ;  52  J.  P.  532— 
Chitty,  J. 

Solicitor  Trustee  appointing  Son.]— On  the 
retirement  of  one  of  two  trustees  of  a  will,  the 
continuing  trustee,  who  was  the  solicitor  to  the 
trustees,  appointed  his  son,  who  was  his  partner 


in  his  business,  to  be  a  new  trustee.  The  trusts 
of  the  will  were  being  administered  by  the 
court  :-^-Held,  that,  without  any  reference  to 
the  personal  fitness  of  the  son,  by  reason  of  his 
position  the  appointment  was  one  which  the 
court  ought  not  to  approve,  though  it  would  not 
have  been  invalid  if  the  court  had  not  been  ad- 
ministering the  trusts.  JYorris,  In  re,  Allen  v. 
Norru,  27  Ch.  D.  333 ;  53  L.  J.,  Ch.  912  ;  51 
L.  T.  593  ;  32  W.  R.  955— Pearson,  J. 

Two  Trustees  out  of,  and  one  within,  the 
Jurisdiction.] — The  cestuis  que  trust  (some  of 
whom  were  infants)  under  a  settlement  of  free- 
hold farms  in  Wales  (dated  in  1840),  were  all 
resident  out  of  the  jurisdiction  either  in  Canada 
or  the  United  States.  The  settlement  contained 
a  power  of  sale  exercisable  with  the  consent  of 
the  equitable  tenant  for  life,  and  a  power  of 
appointing  new  trustees  exercisable  by  the  sur- 
viving or  continuing  trustee,  or  the  heirs  or 
assigns  of  the  last  surviving  or  continuing  trustee. 
In  1874,  when  both  the  original  trustees  of  the 
settlement  were  dead,  the  executrix  of  the  last 
surviving  trustee,  erroneously  believing  herself 
empowered  in  that  behalf,  purported  to  appoint 
two  persons  resident  in  Canada  to  be  trustees  of 
the  settlement.  These  two  persons,  believing 
themselves  to  be  duly  appointed,  had  acted  as 
trustees  since  1874,  and  had  employed  an  English 
agent  to  receive  the  rents  of  the  farms,  paying 
him  a  commission  for  so  doing.  The  heir  of  the 
last  surviving  trustee  could  not  be  found,  and 
there  was  no  one  capable  of  exercising  the  power 
of  appointing  new  trustees  contained  in  the 
settlement.  Upon  a  petition  by  all  the  cestuis 
que  trust  for  the  appointment  by  the  court  of 
the  two  Canadians  and  the  English  agent  as 
new  trustees,  and  for  authority  to  pay  the 
English  trustee  a  commission  on  the  rents  while 
acting  as  manager  and  receiver,  the  court  ap- 
pointed the  two  persons  resident  in  Canada  and 
the  English  agent  to  be  new  trustees  of  the 
settlement,  but  required  an  undertaking  by  the 
trustees  out  of  the  jurisdiction  in  case  the  power 
of  appointing  new  trustees  should  become  exer- 
cisable by  them,  or  either  of  them,  not  to  appoint 
any  new  trustee  resident  out  of  the  jurisdiction 
without  the  consent  of  the  court.  The  court 
also,  subject  to  the  production  of  evidence  as  to 
the  number  of  the  holdings,  the  rents  and  dates 
of  payment,  the  necessity  of  paying  a  commission 
for  collecting  the  rents,  and  that  the  proposed 
remuneration  was  proper,  sanctioned  the  pay- 
ment of  a  commission  to  the  English  trustee. 
Freeman's  Settlement  Trusts,  In  re,  37  Ch.  D. 
148  ;  57  L.  J.,  Ch.  160  ;  57  L.  T.  798  ;  36  W.  R. 
71— Stirling,  J. 


4.    PRACTICE. 

Originating  8ummons.] — Upon  an  originating 
summons  asking  for  general  administration  of 
an  estate  and  the  appointment  of  new  trustees, 
the  court  can  make  an  order  for  the  appoint- 
ment of  new  trustees,  all  the  parties  interested 
in  the  appointment  being  before  the  court 
Allen,  In  re,  Simcs  v.  Simes,  56  L.  J.,  Ch.  779 
56L.T.  611— Stirling,  J. 

The  court  has  no  jurisdiction  upon  an  origi- 
nating summons  in  chambers,  to  make  an  or.ler 
appointing  new  trustees.  Gill,  In  re,  Smith  v. 
QUI,  63  L.  T.  623 ;  34  W.  R  134— Kay,  J. 


1919 


TRUST    AND    TRUSTEE. 


1920 


Service  of  Petition— Cestnis  que  Trust  out  of 
Jurisdiction.] — Upon  a  petition  presented  by  the 
persons  entitled  to  the  residue  of  a  testator's 
estate  for  the  appointment  of  new  trustees  of  his 
will  in  the  place  of  a  deceased  trustee  and  a 
lunatic  trustee,  the  court  dispensed  with  the 
service  of  the  petition  upon  one  out  of  four  per- 
sons entitled  to  the  proceeds  of  sale  of  certain 
real  estate  devised  by  the  will  who  was  resident 
in  Australia.  Wilson,  In  re,  31  Ch.  D.  522  ;  55 
L.  J.,  Ch.  632 ;  54  L.  T.  263— C.  A.  See  also 
Lightbody's  Trust*,  In  re,  supra. 

Affidavit  of  Fitness  of  New  Trustee— Descrip- 
tion.]— In  support  of  a  petition  for  the  appoint- 
ment of  a  new  trustee  in  the  place  of  a  trustee 
who  had  become  lunatic,  two  affidavits  were 
filed  as  to  the  fitness  of  the  person  proposed  to 
be  appointed.  The  deponent  of  one  affidavit 
was  described  as  a  "gentleman,"  the  other  de- 
ponent being  described  as  an  accountant.  Each 
affidavit  described  the  proposed  new  trustee  as  a 
"  gentleman,"  but  also  stated  that  he  was  a  per- 
son of  independent  means  : — Held,  that  the  de- 
scription of  the  deponent  as  a  "  gentleman  "  was 
insufficient,  that  the  position  in  life  of  the  depo- 
nent ought  to  be  stated,  so  as  to  enable  the  court 
to  judge  whether  his  evidence  was  reliable,  but 
that  the  other  affidavit  was  sufficient.  Horwood, 
In  re,  55  L.  T.  373—0.  A. 

Verification  of  Consent  of  Hew  Trustee.] — 

Although  the  Rules  of  December,  1885,  do  not 
apply  to  lunacy  proceedings,  and,  therefore,  when 
a  petition  is  presented  in  lunacy  for  the  appoint- 
ment of  new  trustees,  the  consent  of  the  new 
trustees  must  be  verified  by  affidavit,  yet  when 
a  petition  is  presented  intituled  in  the  Chancery 
Division  and  in  Lunacy,  asking  for  the  appoint- 
ment of  new  trustees  under  the  jurisdiction 
of  the  Lords  Justices  as  additional  judges  of  the 
Chancery  Division,  and  a  vesting  order  under 
the  jurisdiction  in  Lunacy,  the  Rules  of  Decem- 
ber, 1885,  apply,  and  the  consent  to  act  is  suffi- 
ciently verified  by  the  signature  of  the  solicitor. 
Hume,  In  re,  Trenchard's  Will,  In  re,  55  L.  T. 
414— C.  A. 

The  persons  entitled  to  the  residuary  estate 
of  a  testator  presented  a  petition  for  appoint- 
ment of  new  trustees  of  his  will  in  the  place  of 
the  original  trustees,  one  of  whom  had  died,  and 
the  other  was  a  lunatic  : — Held,  that  the  signa- 
ture of  a  new  trustee  to  his  consent  to  act  must 
in  lunacy  be  verified  by  affidavit  according  to 
the  old  practice,  the  Ord.  XXXVIII.,  r.  19a,  not 
applying  to  proceedings  in  lunacy.  Wilson, 
In  re,  31  Ch.  D.  522  ;  55  L.  J.,  Ch.  632  ;  54 
L.  T.  263—C.  A.  S.  P.  Needham,  In  re,  54  L. 
T.  263—C.  A. 

Where  a  new  trustee  is  appointed  in  Chancery 
as  well  as  in  Lunacy,  his  signature  to  his  consent 
to  act  may  be  verified  in  manner  provided  by 
Ord.  XXXVIII.,  r.  19  a,  and  need  not  be  verified 
by  affidavit  according  to  the  old  practice.  Secus, 
where  the  order  is  made  in  Lunacy  only.  Wilson, 
In  re  (31  Ch.  D.  522)  explained.     Hume,  In  re, 

35  Ch.  D.  457  ;  56  L.  J.,  Ch.  1020 ;  56  L.  T.  351 ; 

36  W.  R.  84— C.  A. 


VI.   FOLLOWING  TRUST  MOrTEY. 

Money  advanced  for  Particular  Purpose  — 
Uon-applioation  by  Borrower — Right  of  Lender.  ] 


— Money  had  been  advanced  by  the  plaintiff  to 
the  defendant  for  the  purpose  of  purchasing  a 
certain  business,  and  on  an  undertaking  of  the 
defendant  so  to  apply  it,  the  defendant  did  not 
apply  it  to  that  purpose,  but  spent  some  of  it  in 
paying  debts  of  his  own.  He  then  became 
bankrupt.  The  plaintiff  was  able  to  trace  the 
remainder  of  the  money  advanced  by  him:— 
Held,  that  a  duty  had  been  imposed  on  the  de- 
fendant of  applying  the  money  in  a  particular 
way,  and  a  fiduciary  relation  created,  so  that,  the 
money  not  having  been  applied  in  the  specified 
way,  the  plaintiff  could  recover  in  fnll  so  much 
as  remained  of  it,  notwithstanding  the  bank- 
ruptcy of  the  defendant.  Gibert  v.  Cfwiard,  54 
L.  J.,  Ch.  439 ;  52  L.  T.  54  ;  33  W.  R.  302- 
North,  J. 

Money  handed  to  Solicitor  —  Bight  of  De- 
frauded Person.]— A  solicitor  took  money  of  his 
clients,  and  pretended  to  have  invested  it  on 
mortgage  ;  after  the  death  of  the  solicitor  there 
was  money  in  the  hands  of  his  representatire 
which  could  be  identified  as  part  of  the  money 
received  by  him  from  his  client : — Held,  that  the 
client  could  follow  this  money,  and  require  it  to 
be  applied  in  payment  of  the  money  of  which 
he  had  been  defrauded.  Hallett's  Estate*  h  rr, 
Knatchbull  v.  Hallett  (13  Ch.  D.  696)  followed. 
Murray,  In  re,  Dickson  v.  Murray,  67  L  T.  223 
— Stirling,  J. 

Sale  of  Goods  wrongfully  obtained— Proceed*] 

— Where  a  person  wrongfully  obtained  goods 
and  sold  them,  and  the  proceeds  of  sale  were 
paid  into  a  colonial  bank  for  the  purpose  of 
transmission  to  its  London  branch,  he  receiving 
bills  of  exchange  to  the  amount  of  the  proceeds 
drawn  by  the  colonial  bank  on  its  London 
branch  : — Held,  that  the  owners  of  the  goods 
were  entitled  to  follow  the  proceeds  in  the 
hands  of  the  bank,  and  to  be  paid  the  amount 
of  the  bills,  as  bills,  as  they  became  possessed 
of  them.  Comiii  des  Assureurs  Maritmes  r. 
Standard  Bank  of  South  Africa,  1  C.  &  E.  87- 
Stephen,  J. 

Breach  of  Trust— Fraud  of  one  Trots*.]— 
C,  trustee  with  the  plaintiff  of  a  will  and  also 
trustee  with  the  defendant  of  a  settlement, 
having  misappropriated  a  portion  of  the  settle- 
ment fund,  applied  an  equal  portion  of  the  will 
fund  in  the  purchase  of  stock,  which  he  trans* 
f erred  into  the  names  of  himself  and  the  defen- 
dant. The  plaintiff  and  defendant  were  both 
innocent  of  C.'s  fraud,  and  the  defendant  and 
the  cestuis  que  trusts  under  the  settlement  had 
no  notice  that  the  stock  was  purchased  with 
part  of  the  will  fund.  C.  died  insolvent.  In  an 
action  by  the  plaintiff  to  compel  the  defendant 
to  transfer  the  stock  to  him  : — Held,  that  the 
defendant  having  by  accepting  the  transfer  of 
the  stock  given  up  his  right  to  sue  C.  for  his 
debt  to  the  trust,  was  entitled  to  be  treated  as  a 
purchaser  for  value  without  notice,  and  conse- 
quently to  retain  the  stock  as  part  of  the  setde- 
ment  fund.  TayUr  v.  Blakelock,  32  Ch.  D.  560 ; 
56  L.  J.,  Ch.  390 ;  55  L.  T.  8— C.  A.  Affirming 
34  W.  R.  175— V.-C.  B. 

Payment  by  Auctioneer  into  Bank.]  —An 
auctioneer  received  moneys  from  a  sale  of  li*« 
stock,  and  paid  them  into  his  private  account  at 
the  defendants1  bank.    His  account  was  over- 


1921 


UNCONSCIONABLE    BARGAINS,  ETC. 


1922 


drawn  to  an  amount  not  exceeding  2,500Z. ;  but 
under  an  arrangement  which  was  then  subsisting, 
he  was  permitted  to  overdraw  up  to  2,500/.,  and 
he  had  no  suspicion  at  the  time  when  he  paid  in 
inch  moneys  of  any  intention  on  the  part  of  the 
bank  to  close  his  account.  The  bank  shortly 
afterwards  closed  the  account,  and  applied  the 
proceeds  of  the  sale  in  reduction  of  the  over- 
draft The  bank  had  notice  that  the  moneys  so 
paid  in  were  substantially  the  produce  of  the 
sale  of  stock.  An  action  was  brought  by  the 
plaintiff,  on  behalf  of  all  the  vendors  at  the  sale, 
against  the  bank,  to  recover  their  respective 
purchase-moneys,  less  the  auctioneer's  commis- 
sion : — Held,  that  the  auctioneer  paid  the  pro- 
ceeds of  the  sale  to  his  private  account  in  the 
ordinary  course  of  business,  and  was  not  guilty 
of  a  breach  of  trust  in  so  doing,  and  that  there- 
fore the  plaintiff  had  no  remedy  against  the 
bank.  Marten  v.  Rocke,  63  L.  T.  946  ;  34  W.  JR. 
253 -North,  J. 


VII.    THE   TBUST   ESTATE. 

Accretion  to — Devise  to  first  Mortgagees- 
Mortgage  held  on  Trust] B.,  by  will  dated 

the  24th  March,  1884,  devised  his  freehold 
ground  rent  arising  out  of  the  house  and 
premises,  No.  7,  W.  Terrace,  and  all  his  interest 
in  the  said  premises,  '*  to  the  present  mortgagees 
thereof."  At  the  date  of  the  will,  and  of  B.'s 
death,  there  was  no  mortgage  of  the  freehold 
ground  rent  in  existence,  but  the  leasehold  pre- 
mises out  of  which  the  rent  arose  were  mort- 
gaged by  demise  to  the  trustees  of  a  certain 
settlement  to  secure  moneys  advanced  by  them 
out  of  the  trust  funds.  These  trustees  and  the 
beneficiaries  under  the  settlement  were  alike 
strangers  to  B. : — Held,  that  the  ground  rent 
passed  under  the  devise  to  the  trustees  of  the 
settlement,  but  that  they  took  upon  the  trusts  of 
the  settlement,  and  not  beneficially.  Payne's 
Settlement,  In  re,  Kibble  v.  Payne,  54  L.  T.  840 
—North,  J. 

Assignment — Fund  partly  in  Court  and  partly 
hi  Hands  of  Trustees.] — When  an  assignment 
is  made  of  an  interest  in  a  trust  fund,  part  of 
which  is  in  court  and  part  in  the  hands  of  the 
trustees,  the  assignee,  in  order  to  complete  his 
title,  must,  as  regards  the  fund  in  court,  obtain 
a  stop  order,  and  as  regards  the  fund  in  the  hands 
of  trustees,  give  notice  to  the  trustees.  Mutual 
iAfe  Assurance  Society  v.  Langley,  32  Ch.  D. 
460 ;  54  L.  T.  326—0.  A.  Affirming  53  L.  J., 
Ch.  996  ;  32  W.  R.  791— Pearson,  J. 


TURNPIKE, 

See  WAY. 


UNCONSCIONABLE    BAR- 
GAINS AND  UNDUE 
INFLUENCE. 

Setting  Aside  Deed— Gift  to  Solicitor.]— See 
Solicitor,  IV.,  2. 

Convent — Bules  of  Poverty  and  Obedience- 
Voluntary  Gift  — Laches — Acquiescence.]  —  In 

1868  A.  was  introduced  by  N.,  her  spiritual 
director  and  confessor  to  8.,  the  lady  superior 
of  a  sisterhood,  and  became  an  associate  of  the 
sisterhood.  N.  was  one  of  the  founders  and  also 
the  spiritual  director  and  confessor  of  the 
sisterhood,  which  was  an  association  of  ladies 
who  devoted  themselves  to  charitable  works.  In 
1871,  A.,  having  passed  through  the  grades  of 
postulant  and  novice,  became  a  professed  mem- 
ber of  the  sisterhood,  and  bound  herself  to 
observe  (inter  alia)  the  rules  of  poverty,  chastity, 
and  obedience,  by  which  the  sisterhood  was 
regulated,  and  which  were  made  known  to  her 
when  she  became  an  associate.  These  rules 
were  drawn  up  by  N.  The  rule  of  poverty 
required  the  member  to  give  up  all  her  property, 
either  to  her  relatives,  or  to  the  poor,  or  to  the 
sisterhood  itself,  but  the  forms  in  the  schedule 
to  the  rales  were  in  favour  of  the  sisterhood,  and 
provided  that  property  made  over  to  the  lady 
superior  should  be  held  by  her  in  trust  for  the 
general  purposes  of  the  sisterhood.  The  rule  of 
obedience  required  the  member  to  regard  the 
voice  of  her  superior  as  the  voice  of  God.  The 
rules  also  enjoined  that  no  sister  should  seek 
advice  of  any  extern  without  the  superior's 
leave.  A.,  within  a  few  days  after  becoming  a 
member,  made  a  will  bequeathing  all  her  pro- 
perty to  S. ;  and  in  1872  and  1874,  having 
become  possessed  of  considerable  property, 
handed  over  and  transferred  several  large  sums 
of  money  and  railway  stock  to  S.  In  May,  1879, 
A.  left  the  sisterhood  and  immediately  revoked 
her  will,  but  made  no  demand  for  the  return  of 
her  property  until  1885,  when  she  commenced 
an  action  against  S.,  claiming  the  return  of  her 
property  on  the  ground  that  it  was  made  over 
by  her  while  acting  under  the  paramount  and 
undue  influence  of  S.,  and  without  any  inde- 
pendent and  separate  advice  :  —  Held,  that 
although  A.  had  voluntarily  and  while  she  had 
independent  advice  entered  the  sisterhood  with 
the  intention  of  devoting  her  fortune  to  it,  yet 
as  at  the  time  when  she  made  the  gifts  she  was 
subject  to  the  influence  of  S.  and  N.,  and  to  the 
rules  of  the  sisterhood,  she  would  have  been 
entitled  on  leaving  the  sisterhood  to  claim  the 
restitution  of  such  part  of  her  property  as  was 
still  in  the  hands  of  S.,  but  not  of  such  part  as 
had  been  expended  on  the  purposes  of  the  sister- 
hood while  she  remained  in  it :— But  held  (dis- 
sentients Cotton,  L.J.),  that  under  the  circum- 
stances the  plaintiff's  claim  was  barred  by  her 
laches  and  acquiescence  since  she  left  the  sister- 
hood. Allcard  v.  Skinner,  36  Ch.  D.  145 ;  56 
L.  J.,  Ch.  1052 ;  57  L.  T.  61  ;  36  W.  K.  261— 
C.A. 

8ale  of  Eeversion  —  Independent  Advice  — 
Undervalue.] — Where  the  circumstances  attend- 
ing the  sale  of  a  reversion  raise  a  presumption 
of  fraud,  the  onus  of  proof  is  on  the  purchaser, 


1923 


UNIVERSITY— VACCINATION— VAGRANTS. 


1924 


and  if  it  appears  that  the  sale  was  made  by  a 
poor  and  ignorant  man,  at  a  considerable  under- 
value and  without  independent  advice,  the  court 
will  set  it  aside.  Fn/  v.  Lane,  40  Ch.  D.  312 ; 
58  L.  J.,  Ch.  113 ;  60  L.  T.  12 ;  37  W.  R.  135— 
Kay,  J. 


Setting  Aside— Terms.] — The  purchaser 


of  a  contingent  reversionary  interest  insured  the 
life  of  the  vendor  and  paid  premiums  for  some 
years.  The  sale  was  subsequently  set  aside  : — 
Held,  that  the  purchaser  was  entitled  to  repay- 
ment of  the  purchase  money  and  interest,  but 
not  to  repayment  of  the  premiums.    lb. 


UNDERWRITER. 


See  INSURANCE. 


VACCINATION. 

Summons — Default  of  Appearance  of  Parent] 
—By  the  Vaccination  Act  of  1867  (30  &  31  Vict, 
c.  84,  s.  31),  upon  an  information  that  a  notice 
to  the  parent  of  a  child  to  procure  its  being 
vaccinated  has  been  disregarded,  a  justice  may 
summon  such  parent  to  appear  with  the  child 
before  him,  and  "upon  the  appearance"  the 
justice  may  make  an  order  directing  such  child 
to  be  vaccinated.  By  s.  33,  the  11  &  12  Vict. 
c.  43  (Jervis's  Act),  except  s.  11  thereof,  shall 
apply  to  all  proceedings  to  be  taken  under  the 
act : — Held,  that  an  order  for  the  vaccination  of  a 
child  may  be  made  under  8.  31  of  the  Vacci- 
nation Act,  1867,  on  a  parent  duly  summoned, 
even  when  he  has  failed  to  appear  upon  the 
summons.  Reg.  v.  Cinque  Ports  (Justice)  ot 
Crawford,  17  Q.  B.  D.  191  ;  55  L.  J.,  M.  G.  136; 
34  W.  R.  789- D. 


UNIVERSITY. 

Bight  of  Undergraduates    to  Vote.]  —  The 

undergraduates  of  Oxford  and  Cambridge  are 
not  permitted  to  reside  in  their  rooms  during 
the  vacations,  which  comprise  nearly  six  months 
of  the  year,  without  special  leave  from  the 
college  authorities,  who  are  accustomed  to  let 
and  otherwise  make  use  of  their  rooms  during 
their  absence  : — Held,  that  such  compulsory 
absence  amounted  to  a  break  of  residence  dis- 
qualifying them  for  the  exercise  of  the  fran>- 
chise.  Tanner  v.  Carter  ;  Banks  v.  Mansell,  16 
Q.  B.  D.  231  ;  55  L.  J.,  Q.  B.  27  ;  53  L.  T.  663  ; 
34  \V.  R.  41  ;  1  Colt.  435— D. 

Jurisdiction  of  Chancellor's  Court.] — In  an 

action  for  libels  alleged  to  have  been  published 
in  London,  the  defendant  was  a  resident  under- 
graduate member  of  Oxford  University ;  the 
plaintiff  resided  in  London  and  had  no  con- 
nexion with  the  university.  The  Chancellor  of 
the  University  having  claimed  conusance  of  the 
action  in  his  court  under  the  Oxford  charter  of 
14  Hen.  8,  confirmed  by  statute  13  Eliz. : — Held, 
that  the  privilege  of  the  charter  extended  to 
caseB  in  which  the  plaintiff  resided  outside  the 
limits  of  the  city  of  Oxford,  and  therefore  that 
the  claim  must  be  allowed.  Oinnett  v.  Whit- 
tingham,  16  Q.  B.  D.  761  ;  55  L.  J.,  Q.  B.  409 ; 
34  VV.  R.  565— D. 


UNLAWFUL  ASSEMBLY, 

What  is.]— See  O*  Kelly  v.  Rarvey.  ante.  col. 
1066. 


VACATION. 

Ses  PRACTICE. 


VAGRANTS. 

♦•Wandering  abroad  to  beg  and  gather AhnT 
— Collier*  "  on  Strike."]— Colliers  "  on  strike,'* 
who  were  householders  in  a  colliery  district,  and 
had  wives  and  families,  went  from  house  tn 
house  in  a  street  of  a  town  four  miles  distant, 
with  a  waggon  inscribed  "children's  bread 
waggon,"  and  begged  for  assistance  in  money  or 
kind.  They  were  not  disorderly.  Having  been 
convicted  under  the  Vagrant  Act  (5  Geo.  4. 
c.  83),  8.  3,  which  enacts  that  every  person 
wandering  abroad  in  any  public  highway  to  be? 
or  gather  alms  shall  be  deemed  an  idle  and  dis- 
orderly person  : — Held,  that,  as  it  was  not  their 
habit  and  mode  of  life  to  wander  abroad  and 
beg,  they  were  not  within  the  meaning  of  the 
act,  and  the  conviction  was  wrong.  Point**  *• 
Hill,  12  Q.  B.  D.  306  ;  53  L.  J.,  M.  C.  62;  5<> 
L.  T.  268  ;  32  W.  R.  478  ;  48  J.  P.  341 ;  13  Cox. 
0.  C.  461— D. 

"Frequenting"  a  Public  Thoroughfare  with 
Intent  to  Commit  a  Felony.  ] — A  man  who  "fre- 
quents" a  public  street,  having  in  his  mind  the 
intent  to  commit  a  felony  when  and  wheresoeTer 
opportunity  arises,  is  liable  to  the  penalties  oi 
the  Vagrant  Act,  5  Geo.  4,  c.  83,  a.  4,  even  though 
no  opportunity  should  arise,  and  may  be  com- 
mitted! as  a  rogue  and  vagabond,  if  the  justice* 
are  satisfied  on  sufficient  evidence,  first*  tD*t  he 
frequented  the  street,  and  secondly,  that  be  did 
so  with  intent  to  commit  a  felony.  The  orert 
act,  or  the  attempt  to  carry  out  the  intent,  is 
not  an  essential  part  of  the  offence  against  the 
act.  The  appellant  was  found  and  apprehended 
by  two  constables  at  about  two  o'clock  in  the 
morning  in  a  public  thoroughfare  (soiled  victoria 
Road,  having  in  his  possession  a  portion  of  a 
brass  pump  which  appeared  to  have  been 
wrenched  off  from  the  continuation  pipe.  Being 
stopped  and  questioned  as  to  how  he  becaoe 
possessed  of  it  and  whither  he  was  taking  it,  bj 
gave  an  account  which  proved  to  be  false,  and 
also  a  false  name  and  address.  Being  charged 
before  two  justices  on  suspicion  of  having  stolen 
the  pump,  and  the  proof  failing,  he  was  then 


1925 


VENDOR   AND    PURCHASER 


1926 


charged  under  5  Geo.  4,  c.  83,  s.  4,  with  frequent- 
ing the  street  in  question  with  intent  to  commit 
a  felony ;  and  on  proof  that  he  was  an  associate 
of  thieves,  and  had  four  years  before  been  con- 
victed and  sentenced  to  imprisonment  for  a 
felony,— although  there  was  no  proof  that  he  had 
ever  before  been  seen  in  the  street  in  question, 
or  that  the  pump  had  been  stolen, —  he  was  con- 
victed as  a  rogue  and  vagabond  under  the  4th 
section  of  the  Vagrant  Act,  for  "frequenting  the 
public  thoroughfare  with  intent  to  commit  a 
felony,"  and  sentenced  to  be  imprisoned : — Held, 
that  the  evidence  did  not  warrant  the  convic- 
tion, inasmuch  as  it  did  not  show  a  frequenting 
of  Victoria  Road  with  intent  to  commit  a  felony. 
Clark  v.  Reg.,  or  Reg.  v.  Clark,  14  Q.  B.  D.  92 ; 
54  L.  J.,  M.  0.  66  ;  62  L.  T.  136  ;  33  W.  R.  226  ; 
49  J.  P.  246— D. 

Bogus  and  Vagabond— Astrology— Professing 
to  tell  Fortunes.] — The  appellant  was  convicted 
under  5  Geo.  4,  c.  83,  s.  4,  which  makes  punish- 
able as  a  rogue  and  vagabond  "  every  person 
pretending  or  professing  to  tell  fortunes  .  .  . 
to  deceive  and  impose  on  any  of  his  Majesty's 
subjects."  He  had  published  advertisements  in 
various  newspapers  offering  to  cast  nativities, 
give  yearly  advice,  and  answer  astrological 
questions.  A  detective  wrote  to  him  and 
received  from  him  a  circular  setting  forth  the 
appellant's  views  of  astrology  as  a  science,  and 
stating  that  by  the  positions  of  the  planets  in 
the  nativity,  and  their  aspects  to  each  other, 
he  was  able  to  tell  any  applicant's  fortune  in 
the  various  events  of  life  in  return  for  certain 
remuneration.  He  never  actually  told  anything 
to  the  detective,  and  there  was  no  evidence  to 
show  whether  or  not  he  believed  in  the  truth  of 
his  professions  : — Held,  that  on  this  evidence 
the  appellant  was  rightly  convicted.  Penny  v. 
Hanson,  18  Q.  B.  D.  478  ;  56  L.  J.,  M.  C.  41  ;  56 
L.  T.  233  ;  35  W.  R.  379  ;  51  J.  P.  167  ;  16  Cox, 
0.  G.  173— D. 


VALUER. 

Who  is.] — See  Wilson  and  Green,  In  re,  ante, 
col.  52,  and  Bawdy,  In  re,  ante,  col.  48. 

liability   for    Negligence.] — See     Cann    v. 
WHlmm,  ante,  col.  1300. 

Valuation — For    Purposes   of  Rating.]— &r 
Poor  Law. 


P0LI8. 


Metropolis  Valuation  Aet.  ] — See  Metbo- 


VENDOR  AND  PUR- 
CHASER. 

I.  The  Contract  and  Matters  Relating 
Thereto. 

1.  Portia,  1926. 

2.  formation  of  the  Contract,  1927. 


3.  Particulars  and  Condition*  of  Sale. 

a.  Description  of  Property,  1927. 

b.  Non-disclosure  of  Restrictive  Co- 

venants, 1930. 
e.  Time,  1932. 

d.  In  Other  Cases,  1933. 

4.  Title. 

a.  In  General,  1936. 

b.  Expenses  in  Making,  1938. 

5.  Jurisdiction  under  Vendor  and  Pur- 

chaser Act,  1939. 

6.  Effect  of  Notice.— See  NOTICE. 

II.  Rescission  of  the  Contract,  1940. 

III.  Specific  Performance  of  the  Con- 

tract.—^ Specific  Performance. 

IV.  Rights  and  Duties  of  Vendor  and 

Purchases. 

1.  In  General,  1943. 

2.  Conveyance,  1944. 

3.  Purchase  Money. 

a.  Payment  of,  1946. 

b.  Interest  on,  1947. 

e.  Lien  for,  1949. 

4.  Deposit,  1950. 

5.  Right  to  Compensation.~See   cases, 

ante,  I.  3. 

V.  Covenants   Binding    on    Purchaser, 
1951. 

VI.  Sale  under  Lands  Clauses  Act. — See 
Lands  Clauses  Act. 

VII.  Sale  by  Order  of  the  Court.— See 
Practice,  ante,  coL  1488. 


I.    THE    CONTRACT    AND    XATTER8 
RELATING    THERETO. 

1.   PARTIES. 

Death  of  Vendor  before  Completion — Whether 
a  Trustee.] — Where  a  vendor  has  died  before 
completion  of  the  contract  the  court  will  not  on 
a  petition  under  the  Trustee  Act,  1850,  make  an 
order  vesting  the  property  in  the  purchaser  and 
thereby  in  effect  decree  specific  performance. 
Per  Fry,  L.J.,  a  decree  for  sale  or  specific  per- 
formance is  a  condition  precedent  to  such  a 
vesting  order  under  the  Trustee  Act.  Colling, 
In  re,  32  Ch.  D.  333  ;  55  L.  J.,  Ch.  486  ;  54  L.  T. 
809  ;  34  W.  R.  464— C.  A. 


Defeotive  Title — Trust  for  Sale— Equit- 


able Conversion.} — Testator  (who  married  after 
1834),  by  his  will,  gave  all  his  real  estate  to 
trustees,  on  trust  to  convert  and  invest  1,000Z. 
out  of  the  proceeds  of  sale  and  pay  the  income 
to  his  widow  for  life,  and  then  gave  certain 
legacies,  but  did  not  dispose  of  the  residuary 
proceeds  of  sale.  The  testator  at  the  date  of  his 
death  had  contracted  to  sell  certain  lands  for 
3,0007.  After  his  death  his  trustees  found  that 
no  title  could  be  made  to  part  of  the  lands,  and 
rescinded  the  contract.  They  then  put  up  the 
lands  to  which  they  had  a  title  for  sale  by 
auction,  and  sold  them  for  2,5002.  to  the  same 
purchaser : — Held,  that  there  was  no  conversion 
of  the  testator's  real  estate  beyond  the  purposes 
declared  by  the  will,  and  that  the  undisposed-of 

3  Q  2 


1927 


VENDOE   AND    PURCHASER. 


1928 


proceeds  of  sale  resulted  to  the  heir.  Thomas, 
In  re,  Thomas  v.  Howell,  34  Ch.  D.  166  ;  56  L.  JM 
Ch.  9  ;  55  L.  T.  629— Kay,  J. 

Sale  by  Tenant  in  Tail.]— See  Tenant,  5. 

Sale  by  Executors.]  —  See  Executoe  and 
Administrator,  I.,  1. 

Sale  by  Trustees.]— See  Trust  and  Trustee, 
II.,  5. 

Sale  under  Power  in  Mortgage.] — See  Mort- 
gage, VI.,  1. 

Sale  under  Settled  Estates  Aot.] — See  Settle- 
ment, II. 

To  Conveyance.] — Sec  post,  IV.  2. 


2.    FORMATION   OF   THE   CONTRACT. 

"Interest  in  Land"— Statute  of  Frauds.]— 
See  Contract,  I.,  6,  c. 

Sufficiency  of  Koto  or  Memorandum.] — See 
Contract,  I.,  6,  a. 


3.    PARTICULARS  AND  CONDITIONS  OF 

SALE. 

a.  Description  of  Property. 

Value  of  Rental — Compensation  after  Convey- 
ance completed.  ] — The  plaintiff  purchased  cer- 
tain freehold  property  at  a  sale  by  auction.  The 
particulars  of  sale  erroneously  stated  the  value  | 
of  the  rental,  in  consequence  of  which  mistake  j 
the  plaintiff  gave  more  for  the  property  than  he 
otherwise  would  have  done.  The  conditions  of  j 
sale  contained  a  provision  that  if  any  error  should 
be  discovered  in  the  particulars  the  purchaser 
should  be  entitled  to  compensation.  The  plain- 
tiff did  not  find  out  the  error  until  after  he  had 
paid  the  purchase-money,  and  had  accepted  the 
conveyance  of  the  property : — Held,  that  the 
acceptance  of  the  conveyance  did  not  bar  the 
right  of  the  plaintiff  to  recover  compensation, 
and  that  he  was  entitled  to  receive  it.  Palmsr 
v.  Johnson,  13  Q.  B.  D.  351  ;  53  L.  J..  Q.  B.  348  ; 
51  L.  T.  211 ;  33  W.  R.  36— C.  A.  Affirming  48 
J.  P.  87— A.  L.  Smith,  J. 


t( 


Estimated  annual  value  " — Compensa- 
tion.]— Property  was  described  in  the  particu- 
lars of  sale  as  "  of  the  estimated  annual  value 
of  400/."  There  was  a  condition  entitling  the 
purchaser  to  compensation,  if  any  error  or  mis- 
statement should  appear  to  have  been  made 
in  the  particulars.  The  purchaser  adduced  evi- 
dence to  show  that  the  property  was  only  worth 
2001.  a  year ;  he  did  not,  however,  allege  that 
the  estimate  was  a  dishonest  one  : — Held,  that, 
as  the  property  was  of  the  "  estimated "  value 
stated,  and  the  estimate  was  admitted  not  to  be 
a  dishonest  one,  the  condition  did  not  apply ; 
and  that,  therefore,  the  purchaser  was  not  en- 
titled to  any  compensation.  Hurlbatt  and 
Chaytor,  In  re,  57  L.  J.,  Ch.  421— North,  J. 

Underlease   described   as   Lease — Error   in 
Description  of  Property.]— Houses  offered  for 


sale  were  stated  in  the  particulars  to  be  held  for 
ninety  years  from  the  24th  of  June,  1844.  at  a 
ground  rent  of  21/.    The  4  th  condition  provided 
that  the  title  should  commence  u  with  the  lease 
under  which  the  vendor  holds,  dated  11th  July, 
1845."    The  5th  condition  stated  that  u  the  de- 
scription of  the  property  in  the  particulars  is 
believed  to  be  correct,  but  if  any  error  shall  be 
found  therein  the  same  shall  not  annul  the  sale. 
nor  shall  any  compensation  be  allowed  in  respect 
thereof."    The  vendor  was  in  fact  entitled  to  an 
underlease  for  the  residue  of  the  term  of  ninety 
years  less  two  days  at  a  peppercorn  rent,  and 
the  owner  of  the  two  days  could  not  be  foand : 
—Held,  that  the  representation  that  the  property 
was  held  by  lease,  when  it  was  in  fact  held  by 
underlease,  was  a  fatal  misdescription,  unless  it 
was  cured  by  the  5th  condition,  and  that  the  5th 
condition  did  not  apply,  for  that  "  error  in  de- 
scription of  the  property"  meant  a  misdescription 
of  the  corporeal  property,  not  a  mistake  in  the 
description  of  the  vendor's  title  ;  and  therefore 
that  a  good  title  was  not  shown.    Dictum  of 
Jessel,  M.B.,  in  Camberwell  and  Sout\  Londo* 
Building  Society  v.  Holloway  (13  Ch.D.760) 
disapproved.    Bevfus  and  Masters,  In  re.  3!> 
Ch.  D.  1 10 ;  59  L.*T.  740 ;  37  W.  R.  261 ;  53  J.  P. 
293— C.  A. 

Term  of  Fifty  Tears— Condition  not  to  taka 
Objections.]— The  plaintiff  on  the  12th  March. 
1880,  entered  into  an  agreement  by  private 
contract  to  buy  certain  leasehold  houses  in 
Walworth  for  700/.  The  agreement  contained  a 
statement  that  the  property  was  held  for  a  term 
of  fifty  years,  less  ten  days,  from  Christmas 
1856,  and  also  a  condition  that  the  title  should 
commence  with  two  underleases,  dated  the  20th 
and  27th  April,  1857,  under  which  the  vendor 
held  the  property,  and  that  the  purchaser 
should  make  no  requisition  or  objection  in 
respect  of  the  prior  title  or  the  right  to  grant 
the  said  underleases.  The  purchase  was  com- 
pleted. Four  years  afterwanls  the  purchaser 
brought  an  action  to  set  aside  the  conveyance, 
having  discovered  the  underleases  to  be  invalid. 
The  court  held,  though  this  was  disputed,  that 
the  lessor  of  the  underleases  had  not  sufficient 
interest  to  support  them,  and  that  the  assign- 
ment to  the  purchaser  only  gave  him  the  pro- 
perty for  a  term,  which  would  expire  in  Sept. 
1889  :— Held,  that  the  purchaser  had  a  right  to 
rely  on  the  statement  that  the  property  was  held 
for  a  term  of  fifty  years,  and  that  the  condition 
could  not  prevail  against  it ;  that  the  purchaser 
was  entitled  to  have  the  conveyance  set  aside, 
but  the  parties  agreeing  that  damages  should  I* 
paid  him  instead,  the  proper  measure  of  such 
damages  was  the  difference  between  700/.  and 
the  true  value  of  the  property  for  a  term  with 
only  nine  and  a  half  years  to  run  from  the  date 
of  the  contract,  calculated  on  the  assumption 
that  700Z.  was  its  true  value  if  held  for  the  longer 
term.  Nash  v.  Wooderson,  52  L.  T.49 ;  33  W.  B. 
301— North,  J. 


Deficiency  in  Quantity— Compensation— 1 
to  Eescind.]— Certain  hereditaments  were  pot 
up  for  sale  in  lots  by  auction  subject  to  certain 
conditions  of  sale.  The  following  wnditiansoj 
sale  were  material :— -  3.  Each  lot  is  believed 
and  shall  be  taken  to  be  correctly  described  a*  to 
quantity  and  otherwise  ....  and  the  respective 
purchasers  ....  shall  be  deemed  to  buy  witn 


1929 


VENDOR    AND  PURCHASER. 


1980 


fall  knowledge  of  the  state  and  condition  of  the 
property  as  to  repairs  and  otherwise,  and  no 
error,  misstatement,    or    misdescription    shall 
annul  the  sale,  nor  shall  any  compensation  be 
allowed  in  respect  thereof.    6.  Each  purchaser 
shall  send  his  objections  and  requisitions  (if  any) 
to  or  in  respect  of  the  title,  and  of  all  matters 
Appearing  upon  the  abstract  or  the  particulars  or 
conditions,  of  sale,  to  ...  .  the  vendor's  solici- 
tors" within  a  limited  time.     "7.  If  any  pur- 
chaser shall  insist  on  any  objection  or  requisition 
which  the  respective  vendors  shall  be  unable,  or 
on  the  ground  of  expense  or  otherwise  unwilling 
to  answer,  comply  with,  or  remove,  the>  respec- 
tive vendors  may  ....  at  any  time,  and  not- 
withstanding   any    intermediate    or    pending 
negotiations,  proceedings    or   litigation,  annul 
the  sale."    Lot  3  consisted  of  buildings  and 
land,  and  was  stated  in  the  particulars  of  sale 
to  contain  4a.  3r.  37p.,  and  to  be  let  at  annual 
rents  amounting  to  271.     At  the  auction  lot  3 
was  sold,  and  a  deposit  was  paid.    The  abstract 
of  title  having  been  delivered,  the  purchaser  by 
his  requisitions  objected  that  lot  3  was  much 
smaller  in  extent  than  was  stated  in  the  par- 
ticulars, the  deficiency  amounting  to  an  acre  and 
a  half,  and  the  true  acreage  being  3a.  lr.  37p. 
The  misstatement  in  the  particulars  of  sale  as 
to  the  acreage  was  inserted  innocently,  and  the 
rentals  of  the  property  comprised  in  lot  3  were 
correctly  stated.    The  purchaser  claimed  that 
the  contract  should  be  carried  out  with  com- 
pensation ;  the  vendor  refused  any  compensation, 
oat  offered  to  annul  the  sale.     The  purchaser 
having  refused  to  withdraw  his  requisition  or  to 
consent  to  the  annulment  of  the  sale,  the  vendor 
^ave  notice  that  in  pursuance  of  the  seventh 
condition  she  annulled  the  sale.    The  purchaser 
haying  taken  out  a  summons  under  the  Vendor 
«nd  Purchaser  Act,  1874,  for  specific  performance 
with   compensation  : — Held,    that    the    vendor 
wight  lawfully  annul  the  sale  by  virtue  of  the 
seventh  condition,  for  the  requisition  as  to  the 
deficiency  in  the  quantity  was  a  requisition  as  to 
a  matter  appearing  upon  the  particulars  or  con- 
ditions of  sale  within  the  meaning  of  the  sixth 
•condition.    By  Lord  Esher,  M.R.,  and  Lindley, 
LJ. :— That  even  without  the  sixth  and  seventh 
•conditions  the  purchaser  would  have  been  pre- 
vented by  the   third  condition  from  obtaining 
specific  performance  with    compensation.      By 
Lopes,   L.J.  : — That    without    the    sixth    and 
■seventh  conditions    the    purchaser    would    not 
have  been  prevented  by  the  third    condition 
from  obtaining  specific  performance  with  com- 
pengation ;   for  that  condition  applied  only  to 
trivial  errors  and  not  to  a  deficiency  amounting 
rto  one-third  in  the  quantity  of  the  land  pur- 
dwrted  to  be  sold.     Whlttemore  v.  Whittemore 
<8  L.  R.,  Eq.  603),  and  Cordingley  v.  CJieese- 
torovfh  (4   D.   F.   &  J.  379),  commented  on. 
Terry  and    White,  In    re,  32   Ch.   D.  14  ;    55 
L.  J.,  Ch.  345 ;  54  L.  T.  353  ;  34  W.  R.  379— 
C.A. 

Rescission — Compensation  after  Convey- 

■Me.] — A.  purchased  for  building  purposes  three 
lotB  stated  in  the  particulars  of  sale  to  contain 
■as  to  one  lot  thereof  348  square  yards,  with  a  road 
frontage  of  39  feet  3  inches.  Each  lot  was 
stated  to  be  sold  "  subject  to  re-admeasure- 
ment." There  was  a  condition  to  the  effect  that 
**ny  error,  misstatement,  or  omission  should 
■Jut  annul  the  sale,  but  compensation  should  be 


allowed,  the  amount  of  such  compensation  to  be 
settled  by  the  auctioneer."  Subsequent  to  the 
conveyance  and  the  payment  of  the  purchase- 
money,  the  lot  in  question  was  found  to  contain 
only  135  square  yards,  and  a  frontage  of  18  feet, 
the  property  of  the  vendors.  A.  claimed  rescis- 
sion of  the  contract  and  conveyance,  and  repay- 
ment of  the  purchase-money  with  interest,  or  in 
the  alternative  damages  by  way  of  compensa- 
tion : — Held,  that  the  purchaser  was  not  entitled 
to  rescission,  but  that  he  was  entitled  to  com- 
pensation at  the  rate  of  22*.  6d.  per  square  yard 
for  every  square  yard  of  the  deficiency  (that 
being  the  rate  per  yard  at  which  the  land  was 
purchased  by  him),  and  to  damages  for  the 
actual  loss  sustained  by  him  in  the  preparation 
of  plans  and  specifications  for  building,  on  the 
footing  that  he  was  getting  the  larger  area,  but 
not  to  an  inquiry  for  damages  as  to  any  esti- 
mated loss  that  he  might  sustain  by  the  non- 
completion  of  the  projected  buildings.  Flewitt 
v.  Walker,  53  L.  T.  287  ;  33  W.  R.  894— V.-C.  B. 

Excessive  Quantity  —  Reference  to  Plan  — 
Compensation  to  Vendor.] — Vendors  agreed  to 
sell  a  parcel  of  land  "  containing  forty  acres  or 
thereabouts,  be  the  same  more  or  less,  delineated 
in  the  plan  hereunto  annexed,  and  therein  edged 
.  pink,"  for  9,000Z.  The  agreement  provided  for 
the  purchaser  taking  partial  conveyances  from 
time  to  time  at  prices  fixed  with  reference  to 
quantity,  and  also  that  "  if  any  mistake  or  omis- 
sion be  made  in  the  description  of  the  property 
the  same  shall  not  vitiate  or  annul  the  sale,  but 
a  compensation  or  an  allowance  shall  be  made  " 
as  therein  provided.  The  purchaser  had  taken 
conveyances  of  part  of  the  land  ;  but  the  ven- 
dors, having  discovered  that  the  acreage  was 
41  acres,  1  rood,  10  perches,  instead  of  40  acres, 
refused  to  convey  the  residue  without  compen- 
sation being  made  for  the  excess  of  1  acre, 
1  rood,  10  perches  : — Held,  that  the  vendors 
were  not  entitled  to  any  compensation,  and  must 
convey  the  residue  on  payment  of  the  balance 
of  the  purchase-money.  Orange  to  Wright,  64 
L.  J.,  Ch.  590  ;  52  L.  T.  606— V.-C.  B. 


b.  Non-disclosure  of  Restrictive  Covenants. 

Constructive  Notice  of  Onerous  Covenants.] — 
When  an  agreement  has  been  entered  into  for 
the  purchase  of  an  existing  lease,  the  purchaser 
is  not  affected  with  constructive  notice  of  the 
covenants  contained  in  the  lease,  and  is  not 
bound  to  complete  the  contract  if  the  lease  is 
subject  to  onerous  covenants  of  an  unusual 
character,  unless  before  the  agreement  was  made 
he  had  a  fair  opportunity  of  ascertaining  for 
himself  the  terms  of  such  covenants. — The  prin- 
ciple of  the  decision  in  Hyde  v.  Warden  (3  Ex. 
D.  72)  applies  to  an  agreement  to  purchase  an 
existing  lease,  as  well  as  to  an  agreement  to  take 
an  underlease.  Reeve  v.  Bcrridge,  20  Q.  B.  D. 
523 ;  57  L.  J.,  Q.  B.  265  ;  58  L.  T.  836  ;  36 
W.  R.  517  ;  52  J.  P.  549— C.  A. 

Silence  equivalent  to  Representation.] — The 
vendor  of  a  leasehold  interest  is  bound  to  know 
what  covenants  are  in  his  lease ;  and  if  an 
intending  purchaser  state  the  object  which  he 
has  in  purchasing,  the  vendor  is  bound  to  com- 
municate such  knowledge  to  him,  provided  such 
covenants    can    be   reasonably    interpreted    as 


1981 


VENDOR   AND    PURCHASER. 


1982 


affecting  the  object  which  he  is  aware  the 
purchaser  has  in  view  in  purchasing  the  pre- 
mises ;  and  if  the  vendor  is  silent  as  to  a 
covenant  in  the  lease  prohibiting  or  interfering 
with  that  object,  his  silence  is  equivalent  to  a 
representation  that  there  is  no  such  prohibitory 
covenant,  even  though  he  is  not  aware  of  its 
extent  or  operation.  Flight  v.  Barton  (3  My. 
&  K.  282)  followed  and  applied.  Power  v. 
Barrett,  19  L.  B.,  Ir.  450— V.-C. 

Betnxn  of  Deposit  —  Conditions  precluding 
Objection.] — The  owner  in  fee  of  land  sold  and 
conveyed  it,  during  the  years  1865,  1866,  and 
1867,  in  thirteen  lots  to  different  purchasers, 
each  lot  being  subject  to  covenants  entered  into 
by  the  purchasers,  restricting  the  use  of  the  land 
as  a  brick-yard,  and  in  other  respects.  The 
defendant  subsequently  became  the  purchaser  of 
lot  11,  but  the  deed  of  conveyance  to  him  did 
not  contain  the  restrictive  covenants.  In  1882 
the  plaintiffs,  a  company  for  manufacturing 
bricks,  contracted  to  purchase  lot  11  from  the 
defendant  under  conditions  of  sale  which  stated 
that  the  property  was  sold  subject  to  any  matter 
ot  thing  affecting  the  same,  whether  disclosed 
at  the  time  of  sale  or  not ;  and  provided  that 
any  error  or  omission  in  the  particulars  should 
not  annul  the  sale,  nor  entitle  the  purchaser  to 
compensation.  The  existence  of  the  restrictive 
covenants  was  not  mentioned  in  the  contract, 
but  during  the  negotiations  the  defendant  stated 
that  there  were  covenants  restricting  the  use  of 
the  land  as  a  brickyard,  but  his  solicitor,  who 
was  present,  and  to  whom  the  plaintiffs'  solici- 
tor applied  for  information,  stated  that  he  was 
not  aware  of  any  such  covenants.  The  plain- 
tiffs paid  a  deposit  upon  the  purchase-money, 
and  naving  subsequently  discovered  that  there 
were  restrictive  covenants,  claimed  to  rescind 
their  contract  and  sued  the  defendant  to  recover 
the  amount  of  the  deposit :— Held,  that  the 
plaintiffs,  if  their  contract  with  the  defendant 
were  carried  out,  would  be  bound  by  the  restric- 
tive covenants,  and  that  the  owners  of  the  other 
twelve  lots  purchased  from  the  original  vendor 
would  be  entitled  to  enforce  those  covenants 
against  the  plaintiffs ;  that  the  plaintiffs  were 
hot  precluded  by  the  terms  of  the  conditions  of 
sale,  nor  by  s.  3,  sub-s.  3,  of  the  Conveyancing 
Act,  1881,  from  refusing  to  complete  the  pur- 
chase, and  that  they  were  therefore  entitled  to 
recover  the  amount  of  the  deposit.  Nottingham 
Patent  Brick  and  Tile  Company  v.  Butter,  16 
Q.  B.  D.  778  ;  65  L.  J.,  Q.  B.  280 ;  54  L.  T.  444  ; 
34  W.  B.  405— C.  A. 

"Shop"  not  including  "Tavern."]— Land  had 
been  conveyed  to  the  defendant  by  an  indenture 
which  contained  a  covenant  on  the  part  of  the 
defendant  not  to  use  any  house  to  be  erected  on 
the  land  for  any  other  purpose  than  that  of  a 
private  dwelling-house,  "  with  the  exception  of 
shops  which  might  be  built  fronting  the  L. 
road."  The  defendant  put  up  parts  of  the 
property  for  sale  in  lots,  the  lot  purchased  by 
the  plaintiff  being  described  in  the  particulars  as 
Lot  1,  "  a  valuable  tavern  lot."  The  fourth 
condition  of  sale  was  to  the  effect  that  the  trade 
of  an  innkeeper,  victualler,  &c,  was  not  to  be 
carried  on  save  upon  Lot  1.  Lot  1  fronted  the  L. 
road  : — Held,  that  the  word  "  shop  "  did  not 
include  "tavern,"  and  that  the  plaintiff  was 


entitled  to  recover  his  deposit  with  interest  and 
costs.  Coombs  v.  Cook,  1  C.  &  E,  75 — Huddle- 
ston,  B. 

Knowledge  of  Purchaser  of  Defective  Title.]— 
A  railway  company  agreed  to  demise  to  E.  for 
building  purposes  certain  lands  which  they  had 
acquired  under  their  compulsory  powers.    E. 
was  restrained  from  assigning  without  licence. 
The  property  had  formerly  belonged  to  a  building 
society,  which  had  sold  it  in  lots,  each  purchaser 
entering  into  restrictive  covenants  for  the  benefit 
of  the  owners  of  the  other  lots,  and  the  convey- 
ance to  the  company  was  expressly  made  sub- 
ject to  these  covenants.    E.  agreed  to  sell  his 
interest  under  the  contract  to  B.     R.  at  the  time 
of  the  contract  knew  of  the  restrictive  covenants, 
but  believed  that  the  compulsory  purchase  by 
the  railway  company  had  extinguished  them. 
E.   did   not   know    of   their   existence.     B/i 
solicitors  having  discovered  the  existence  of  the 
covenants,  objected  to  the  title.    E.'s  solicitors 
replied  that  the  compulsory  purchase  had  extin- 
guished them.    B.  then  refused  to  proceed  with 
the  purchase.     E.  brought  a  bill  for  specific 
performance,  but   having  afterwards  resumed 
possession,  and  built,  in  order  to  avoid  a  forfeiture, 
the  action  came  on  as  an  action  for  damages. 
E.  had  never  obtained  a  licence  to  assign:— 
Held,  by  Kay,  J.,  that  as  E.  had  not  either  at 
the  time  of  the  repudiation  of  the  contract  by 
the    defendant,    or   subsequently,    obtained  a 
licence  to  assign,  he  never  was  in  a  position  to 
perform  his  part  of  the  contract,  and  therefore 
could  not  recover  damages.    Semble,  also,  that 
B.  had  not  such  knowledge  that  the  property 
was  still  subject  to  the  covenants  as  to  debar 
him  from  requiring  a  title  free   from  them. 
Held,  on  appeal,  that  B.  was  entitled  to  object 
to  the  title  on  the  ground  of  the  restrictive 
covenants,  for  that  in  order  to  take  a  case  out  of 
the  general  rule  that  a  purchaser  is  entitled  to 
require  a  good  title,  it  must  be  shown  that  at 
the  time  of  the  contract  he  knew  that  a  good 
title  could  not  be  made,  and  that  here  such 
knowledge  was  not  shown,  as  B.  believed  that 
the  covenants  had  been  extinguished.    Semble, 
that  R.'b  objection  on  the  ground  that  a  licence 
to  assign  had  not  been  obtained  was  not  valid, 
inasmuch  as  he  had  repudiated  the  contract 
before  the  time  had  arrived  at  which  it  was 
necessary  for  the  vendor  to  produce  a  licence. 
Ellis  v.  Rogers,  29  Ch.  D.  661 ;  53  L.  T.  377— 
C.A. 

o.  Time. 

acquisitions— When  to  be  Delivered.]— By  the 
conditions  of  sale  of  certain  property  it  was 
stipulated  that  all  objections  and  requisitions  in 
respect  of  the  title  should  be  delivered  within 
fourteen  days  from  the  delivery  of  the  abstract 
An  abstract  of  title  was  duly  delivered  contain- 
ing a  full  abstract  of  a  will  under  which  the 
property  was  sold.  After  the  fourteen  days  had 
elapsed  the  purchaser  made  an  objection  as  to 
the  construction  of  the  will.  The  question  was, 
whether  the  purchaser  could  make  any  requisi- 
tion after  the  expiration  of  the  time  agreed  upon 
by  the  conditions  of  sale : — Held,  that  the 
objection  did  not  go  to  the  root  of  the  title, 
and  the  requisition,  being  out  of  time,  failed. 
Thompson  to  Curzon,  In  re,  52  L.  T.  496— 
Kay,  J. 


1933 


VENDOR    AND    PURCHASER. 


1934 


When  Essence  of  Contract — Defect  of  Con- 
veyance—Repudiation.] — Where  a  contract  for 
sale  between  a  vendor  and  purchaser  fixes  a  day 
for  completion,  and  provides  that  if  the  purchase 
is  not  completed  on  that  day  the  purchaser  shall 
pay  interest  from  thatday  until  completion,  time  is 
not  of  the  essence  of  the  contract  so  as  to  entitle 
the  purchaser  immediately  to  repudiate  the  con- 
tract if,  in  consequence  of  a  defect  of  conveyance 
merely  and  not  of  title,  the  vendor  is  unable  on 
his  part  to  complete  the  contract  on  the  day 
fixed.  Where  the  defect  is  simply  one  of  con- 
veyance and  time  is  not  of  the  essence  of  the 
contract,  the  purchaser  is  not  entitled  to  re- 
pudiate after  the  day  fixed  by  the  contract  for 
completion  until  he  has  given  the  vendor  notice 
to  remove  the  defect  within  a  reasonable  time, 
and  the  vendor  has  failed  to  do  so.  Hattcn  v. 
Ruwll,  38  Ch.  D.  334  ;  57  L.  J.,  Ch.  425  ;  58 
L.  T.  271 ;  36  W.  R.  317— Kay,  J. 


Sale  by  bare  Trustee  —  Rescission.]  — 


The  rule  that  where  time  is  not  made  of  the 
essence  of  the  contract  for  the  purchase  of  land, 
the  purchaser  cannot,  in  the  absence  of  un- 
reasonable delay  on  the  part  of  the  vendor, 
arbitrarily  fix  a  short  day  after  which  he  will 
not  be  bound,  does  not  apply  to  a  case  where,  at 
the  date  of  the  contract,  the  vendor  had  not 
power  to  sell  the  estate.  Lee  v.  Soames,  59  L.  T. 
366 ;  36  W.  R.  884— Kekewich,  J. 

A.  being  seised  of  the  bare  legal  estate  in 
freeholds  without  any  power  of  sale,  contracted 
to  sell  to  B.  B.  on  discovering  that  there  were 
several  beneficial  owners,  required  that  they 
should  ratify  the  contract,  and  eventually  fixed 
a  short  day  for  rescission  of  the  contract,  unless 
ratification  should  be  previously  obtained.  Rati- 
fication not  having  been  obtained  by  the  day 
named : — Held,  that  B.  was  entitled  to  rescind 
and  to  have  his  deposit  returned.    lb. 


d.  In  other  Cases. 

-Most  desirable  Tenant." 1  —  The  plaintiffs 
put  up  an  hotel  for  sale  on  the  4th  of  August, 
1882,  stating  in  the  particulars  that  it  was  let 
to  "  F.  (a  most  desirable  tenant),  at  a  rental  of 
400/.  for  an  unexpired  term  of  27 J  years."  The 
L.  Co.  sent  M.,  their  secretary,  to  inspect  the 
property.  M.  reported  that  F.,  from  the  business 
be  was  doing,  could  hardly  pay  the  rent,  and 
that  the  town  in  which  it  was  situate  seemed  to 
be  in  the  last  stage  of  decay.  The  directors,  on 
receiving  this  report,  directed  M.  to  bid  up  to 
5.0002.  M.  went  and  bought  for  4,7002.  Before 
completion,  F.  went  into  liquidation,  and  the 
L.  Co.  refused  to  complete.  The  plaintiffs 
sued  for  specific  performance.  It  was  proved 
that  on  the  1st  of  May,  1882,  the  Lady  Day 
quarter's  rent  was  wholly  unpaid ;  that  a  dis- 
tress was  then  threatened,  and  that  F.  paid  30/. 
on  the  6th  of  May,  40/.  on  the  13th  of  June,  and 
the  remaining  30£.  shortly  before  the  auction, 
and  that  no  part  of  the  quarter's  rent  due  at 
Midsummer  had  been  paid.  The  chairman  of 
the  company  was  orally  examined,  and  deposed 
most  positively  that  the  company  would  not 
have  bought  but  for  the  representation  in  the 
particulars  that  F.  was  a  most  desirable  tenant. 
The  judge  of  first  instance  held,  that  there 
was  a  material  misrepresentation,  and  that  the 
contract   had   been   entered   into  in  reliance 


upon  it,  and  accordingly  dismissed  the  action, 
and  on  a  counter-claim  by  the  defendants, 
rescinded  the  contract : — Held,  on  appeal,  that 
the  description  of  F.,  as  a  most  desirable  tenant, 
was  not  a  mere  expression  of  opinion,  but  con- 
tained an  implied  assertion  that  the  vendors 
knew  of  no  facts  leading  to  the  conclusion  that 
he  was  not ;  that  the  circumstances  relating  to 
the  Lady  Day  rent  showed  that  he  was  not  a 
desirable  tenant;  and  that  there  was  a  mis- 
representation. Smith  v.  Land  and  House 
Property  Corporation,  28  Ch.  D.  7  ;  51  L.T.  718  \. 
49  J.  P.  182— C.  A. 

Easement  not  mentioned — Statement  in  Aue* 
tion-Room.] — A  dwelling-house  and  offices  were- 
put  up  for  sale  by  public  auction,  under  a  printed 
condition  in  a  common  form,  that  the  lot  was 
sold  subject  to  any  existing  rights  and  easements- 
of  whatever  nature — and  the  printed  particulars 
made  no  mention  of  any  easement,  or  of  any 
claim  to  an  easement.  As  the  result  of  evidence, 
it  appeared  that  the  house  was  subject  to  an 
easement  belonging  to  the  owner  of  a  neighbour- 
ing tenement  to  use  the  kitchen  for  particular 
purposes,  and  that  the  vendor's  solicitor  knew  ol 
the  rumoured  existence  of  some  such  easement,, 
but  forebore  to  make  inquiries.  No  grant  of  an 
easement  appeared  from  the  abstract,  and  its 
existence  was,  in  fact,  disputed  on  the  pleadings.. 
In  the  auction-room  the  plaintiff's  solicitor  said 
he  had  heard  of  some  such  claim,  but  had  no 
definite  information  about  it,  and  the  auctioneer, 
in  the  hearing  of  the  plaintiff's  solicitor,  on  being 
questioned,  told  the  audience  that  they  might 
dismiss  the  subject  of  the  rumoured  claims  from 
their. minds,  as  nobody  would  probably  ever  hear 
of  them  again  :— Held,  that  the  conditions  were 
misleading,  and  the  statements  in  the  auction- 
room  insufficient,  and  specific  performance  of 
the  contract  was  refused.  Heywood  v.  MallaUeuy 
25  Ch.  D.  357  ;  53  L.  J.,  Ch.  492 ;  49  L.  T.  658  \. 
32  W.  R.  538— V.-C.  B. 

Notice  to  Quit  .by  Tenant  not  disclosed.] — 
An  agreement  was  entered  into  for  the  purchase 
of  a  freehold  estate  of  4,400  acres  upon  the  terms 
of  certain  particulars  and  conditions  of  sale. 
In  the  particulars  it  was  stated  that  the  Y.  farm, 
a  farm  on  the  estate  of  605$  acres,  was  in  the 
occupation  of  H.  on  a  yearly  tenancy.  H.  had 
before  the  sale  written  to  the  vendor  informing 
him  that  he  intended  to  give  up  the  farm  at  the 
end  of  the  current  year,  but  this  was  written 
before  the  proper  time  for  giving  notice  to 
determine  the  tenancy.  The  vendor  answered 
this  letter,  and  wrote,  "  You  will  of  course  send 
me  a  formal  notice  at  the  right  time."  No 
mention  of  this  correspondence  was  made  in  the 
particulars,  or  at  the  time  of  the  sale.  After 
the  sale  H.  gave  formal  notice  to  quit.  The 
purchaser  refused  to  complete  his  purchase : — 
Held,  that  the  non-disclosure  of  the  intimation 
of  the  tenant  that  he  intended  to  leave  at  the- 
end  of  the  year,  he  not  having  given  formal', 
notice  to  quit,  did  not  make  the  statement  in. 
the  particulars  false  or  misleading,  and  tha- 
purchaser  was  not  entitled  to  have  the  contract 
rescinded,  but  must  complete  his  purchase.. 
Davenport  v.  Chardeyt  64  L.  T.  872;  34  W.  R„ 
391— Kay,  J. 

Road   made    up   and   Sewered— Measure  of 
Compensation.] — The  particulars  of  sale  under 


1985 


VENDOR    AND    PURCHASER. 


1986 


which  land  was  sold  described  it  as  "  approached 
by  Cuddington  Avenue,  a  new  road,  made  up 
and  sewered,  which  is  continued  across  the  pro- 
perty "  ;  and  the  plan  attached  to  the  particulars 
indicated  the  continuance  of  Cuddington  Avenue 
across  the  property.  It  turned  out,  however, 
that  the  road  across  the  property  was  not  made 
np  and  sewered  like  Cuddington  Avenue  : — Held, 
that  there  was  a  misdescription,  and  that  the 
measure  of  compensation  to  which  the  purchaser 
was  entitled  was  the  difference  between  the 
actual  value  of  the  property  at  the  date  of  the 
purchase  and  what  would  have  been  its  actual 
value  at  that  date  if  the  road  across  it  had 
been  made  up  and  sewered  like  Cuddington 
Avenue,  and  not  the  Bum  it  would  cost  to  have 
the  road  across  the  property  made  up  and 
sewered  like  Cuddington  Avenue.  Chifferiel,  In 
re,  Chifferiel  v.  Watson,  40  Ch.  D.  45  ;  58  L.  J., 
Ch.  263  ;  60  L.  T.  99  ;  37  W.  R.  120— North,  J. 

Condition  that  Vendor  may  Bescind  if  Re- 
quisitions not  complied  with.]—  See,  post,  1 1. 

Condition  as  to  Limited  Title.] — See  Marsh 
and  Granville  {Earl),  In  re,  infra. 

Incumbrance  appearing  on  Searohes  made  by 
Purchaser.] — By  a  contract  of  sale  dated  3rd 
May,  1884,  S.  agreed  to  purchase  certain  lease- 
hold property  for  240Z.,  subject  to  the  following 
condition  amongst  others  : — No  requisition  to  be 
made  in  respect  of  the  title  prior  to  the  convey- 
ance of  the  12th  of  May,  1869,  being  a  deed  of 
conveyance  to  the  vendors'  testator.  S.,  having 
discovered  through  searches  made  by  himself, 
two  judgment  mortgages  registered  in  1858  and 
1859  against  the  property,  required  proof  that 
they  had  been  discharged,  with  which  requisition 
the  vendors  declined  to  comply  : — Held,  that  S. 
was  not  precluded  from  objecting  to  the  title, 
on  the  ground  that  these  judgment  mortgages 
appeared  on  the  registry  searches.  A  condition 
so  framed  only  precludes  a  purchaser  from 
making  requisitions  upon  the  vendor  as  to  title, 
but  does  not  prevent  the  purchaser  from  show- 
ing aliunde  that  the  title  is  in  fact  defective. 
Davys  and  Saurin,  In  re,  17  L.  R.,  Ir.  334 
— V.-C. 

Condition  as  to  Parties  to  Conveyance.] — See 
post,  IV.,  2. 

Condition  as  to  Payment  of  Interest  on 
Purchase  Money.]— See  post,  IV.,  3,  b. 

Non-disclosure  of  Property  in  Wall— Rescission 
— Compensation.] — The  vendor  contracted  to 
sell  a  freehold  villa  and  garden,  between  which 
and  a  certain  road  there  was  a  wall.  The  parti- 
culars contained  a  statement  that  the  garden 
was  tastefully  laid  out  and  enclosed  by  a  rustic 
wall  with  tradesmen's  side  entrance.  The  wall, 
as  the  vendor  knew,  did  not  belong  to  him,  but 
he  did  not  disclose  that  fact  to  the  purchaser. 
There  was  in  the  wall  a  tablet  bearing  the  name 
of  the  villa,  as  well  as  a  tradesmen's  Bide  entrance. 
The  vendor  knew  that  the  purchaser  intended  to 
build  cottages  upon  the  property  with  access  to 
the  road.  The  frontage  of  the  property  upon 
that  side  was  181  feet.  The  conditions  of  sale 
provided  for  compensation  for  mistake  in  the 
particulars : — Held,  that  the  vendor  could  not 
avail  himself  of   the  condition  providing  for 


compensation,   and  that   the    purchaser  was 

entitled  to  rescind  the  contract.     Brevier  v. 

Broton,  28   Ch.  D.  309  ;    54  L.  J.,  Ch.  606- 
North,  J. 

Compensation — Waiver  of  Objection.]— M.  k 
Co.  bought  the  benefit  of  a  contract  for  purchase 
of  certain  property  which  was  sold  in  an  adminis- 
tration action,  and,  in  investigating  the  title, 
discovered  a  misdescription  in  the  particulars,  in 
respect  of  which  they  forthwith  claimed  compen- 
sation in  accordance  with  the  terms  of  the  con- 
tract. After  an  order  had  been  made  (but  not 
drawn  up)  on  a  summons  taken  out  by  M.  k  Co. 
for  liberty  to  pay  the  whole  of  the  purchase- 
money  into  court,  a  correspondence  took  place 
with  the  vendors'  solicitors,  in  which  the  latter, 
in  reply  to  inquiry  as  to  whether  they  intended 
to  take  advantage  of  the  order  in  meeting  the 
question  of  compensation,  stated  that  personally 
they  intended  to  take  no  advantage,  but  that, 
since  they  were  acting  for  an  infant,  the  matter 
must  proceed  strictly.  The  purchase-money  was 
paid  into  court,  and  the  conveyance  executed, 
the  property  being  therein  correctly  described : 
— Held,  that  the  vendees  were  not  estopped 
from  prosecuting  their  claim  for  compensation. 
Perriam,  In  re,  Perriam  v.  Perriam,  49  L.  T. 
710  ;  32  W.  R.  369— Pearson,  J. 


4.  TITLE. 

a.    In  General. 

Abstract  of  —  Insufficiency  —  Costs.]  —  An 
abstract  of  title  ought  to  set  out  every  part 
of  the  documents  abstracted  which  may  affect 
the  judgment  of  the  purchaser,  and  the  par- 
chaser  is  entitled  to  consider  that  no  part  of  the 
documents  which  is  not  so  set  out  has  any  bear- 
ing upon  the  title.  An  abstract  of  title  con- 
tained an  abstract  of  a  settlement  in  which  the 
property  to  be  sold  was  included,  but  did  not 
set  out  the  part  of  the  settlement  by  virtue  of 
which  it  was  so  included.  In  a  vendor's  action 
for  specific  performance  of  a  contract  to  pur- 
chase, in  which  the  vendor  was  successful:— 
Held,  that  no  costs  could  be  given  but  such  as 
had  been  incurred  after  the  abstract  had  been 
amended  by  setting  out  the  material  part  of  the 
settlement.  Burnaby  v. Equitable  Reversionary 
Interest  Society,  54  L.  J.,  Ch.  466  ;  52  L.  T. 
350  ;  33  W.  R.  639— Pearson,  J. 

Limited  Title— Condition— Voluntary  Deed.]- 
A  contract  entered  into  in  1882  for  the  sale  of 
freehold  estate  provided  that  the  title  should 
commence  "  with  an  indenture  dated  the  18th  of 
October,  1845,"  and  made  between  persons  whose 
names  were  mentioned,  and  that  the  earlier  title 
should  not  be  investigated  or  objected  to.  From 
the  abstract  of  title  delivered  by  the  vendors  to 
the  purchaser  it  appeared  that  the  deed  of  1845 
was  a  conveyance  by  a  person,  who  purported  to 
be  the  absolute  owner,  of  freehold  and  leasehold 
property  to  trustees,  on  trust  for  himself  for  life, 
and  after  his  death  on  trust  to  sell  the  property, 
and  to  hold  the  proceeds  of  sale  on  the  trusts 
declared  by  a  deed  of  even  date.  An  express 
power  was  reserved  to  the  grantor  to  revoke  the 
trusts.  The  deed  was  a  voluntary  one,  except 
for  the  consideration  which  resulted  from  the 
liability  assumed  by  the  trustees  in  respect  to 


i 


1987 


VENDOR    AND    PURCHASER. 


1988 


the  leaseholds : — Held,  that  inasmuch  as  the  fact 
that  the  deed  of  1845  was  a  voluntary  one  would 
influence  the  purchaser  in  determining  whether  he 
would  agree  to  accept  a  title  commencing  within 
forty  years,  the  vendors  ought  to  have  stated  in 
the  condition  of  sale  the  nature  of  the  deed ; 
that  the  omission  to  state  this  rendered  the  con- 
dition a  misleading  one ;  and  that  the  purchaser 
was  not  bound  by  the  contract  to  accept  a  title 
commencing  with  that  deed.  Marsh  and  Gran- 
xiUe  {Earl),  In  re,  24  Ch.  D.  11  ;  53  L.  J.,  Ch. 
SI  ;  48  L.  T.  947 ;  31  W.  R.  845— C.  A.  See 
Davys  and  Saurin,  In  re,  ante,  col.  1935. 

Production  of  Beoeipt — Underlease.] — On  the 
sale  of  an  underlease  the  production  of  the 
ground  landlord's  receipt  for  rent  paid  by  the 
vendor  to  the  ground  landlord  under  threat  of 
distress  for  the  ground  rent,  is  not  the  "  pro- 
duction of  the  receipt  for  the  last  payment  due 
for  rent  under  the  underlease,"  within  the  mean- 
ing of  the  Conveyancing  Act,  1881,  s.  3,  sub-s.  5. 
Hi  a  gin*  and  Percical,  In  re,  57  L.  J.,  Ch.  807  ; 
-59  L.  T.  213— Kay,  J. 


Peppercorn  Bent.]—  The  Conveyancing 


Act,  1881,  s.  3,  sub-s.  4,  does  not  apply  to  a 
peppercorn  rent  so  as  by  the  production  of  a 
receipt  for  a  peppercorn  to  relieve  the  vendors 
of  a  building  lease  from  the  obligation  of  show- 
ing that  the  covenants  with  their  lessor  (to 
finish  the  house  within  a  certain  time  to  the 
satisfaction  of  the  lessor's  surveyor)  have  been 
duly  performed  and  observed.  Moody  and 
Yates,  In  re,  30  Ch.  D.  344  ;  54  L.  J.,  Ch.  886  ; 
.63  Lu  T.  845  ;  33  W.  R.  785— C.  A. 

What  may  bo  forood  on  Purchaser.] — A 
twelve  years'  possessory  title  can  be  forced  on  a 
purchaser  though  the  vendor  had  no  title  at  the 
date  of  the  contract.  Such  a  title  can  be  proved 
in  chambers  by  less  than  the  strictest  evidence 
if  the  purchaser  does  not  raise  an  objection. 
Games  v.  JSannor,  54  L.  J.,  Ch.  517  ;  33  W.  R. 
e4— C.  A. 

G.,  the  lessee  of  a  house,  contracted  with  his 
lessor's  representatives  to  buy  the  reversion.  6. 
afterwards  sought  rescission  on  the  ground  that 
part  of  the  premises  contracted  to  be  sold  to  him 
was  in  fact  part  of  the  waste  of  the  manor,  and 
did  not  belong  to  the  vendors  : — Held,  that  as 
this  piece  of  land  had  been  inclosed  by  the 
Tendon  and  had  been  in  possession  of  G.  as 
their  lessee  from  1872  to  1884,  a  good  possessory 
title  had  been  shown  to  it,  and  that  G.  therefore 
was  not  enti  tied  to  rescission .  G rover  v.  Loonies, 
J>5  L.  J.,  Ch  52  ;  63  L.  T.  593  ;  34  W.  R.  94— 
V.-C.  B. 

A  railway  company,  upon  a  sale  of  superfluous 
lands,  arranged  with  the  purchasers  for  the  post- 
ponement of  the  payment  of  the  purchase  money 
until  a  given  date,  which  was  beyond  the  period 
prescribed  for  the  sale  by  the  railway  company 
of  its  superfluous  lands.  Part  of  the  arrange- 
ment consisted  in  a  declaration  by  the  parties 
that  the  railway  company  should  have  a  lien  on 
the  lands  sold  until  payment  of  the  purchase 
moneys.  The  purchasers  from  the  railway  com- 
pany having  contracted  to  sell  the  lands  to 
another  person  : — Held,  on  a  summons  under 
the  Vendor  and  Purchaser  Act,  1874,  that  the 
oourt  would  not  compel  the  person,  who  agreed 
to    purchase   from   the   purchasers    from    the 

ilway  company,  to  complete.    Whether  the 


sale  by  the  railway  company  was  an  absolute 
sale,  quaere.  Thackwray  and  Young,  In  re,  40 
Ch. '  D.  34 ;  58  L.  J.,  Ch.  72  ;  69  L.  T.  815 ; 
37  W.  R.  74— Chitty,  J. 


b.    Expenses  in  Making;. 

Sale  under  Power  in  Mortgage — Evidence  of 
Subsistence  of  Security.] — In  1818  certain  free- 
hold property  was  mortgaged  by  the  then  owner, 
the  form  of  the  mortgage  being  a  conveyance  of 
the  fee  simple  to  trustees  upon  trust,  at  any  time 
after  the  expiration  of  six  months  from  the  date 
named  for  •  repayment  of  the  principal,  to  sell 
the  property,  and  discbarge  the  debt,  &c.,  out  of 
the  proceeds,  and  to  pay  the  residue  to  the 
mortgagor,  his  executors,  administrators,  or 
assigns.  The  deed  contained  a  proviso  for 
redemption,  and  also  provisions  making  the 
receipt  of  the  trustees,  their  heirs,  or  assigns,  a 
sufficient  discharge  to  a  purchaser  of  the  pro- 
perty, and  exonerating  any  purchaser  from 
seeing  to  the  application  of  the  purchase  money, 
and  rendering  unnecessary  the  concurrence  of 
the  mortgagor,  or  his  heirs,  in  any  conveyance 
under  the  trust  for  sale.  The  deed,  however,  did 
not  contain  any  provision  exonerating  a  pur- 
chaser from  inquiring  whether  default  had  been 
made  in  payment  of  principal  or  interest,  nor  as 
to  whether  anything  was  owing  on  the  security. 
The  mortgagor  died  in  1839,  having  by  his  will 
devised  the  property  comprised  in  the  mortgage 
to  several  of  his  children  in  succession,  as  tenants 
for  life  with  remainders  over.  The  last  surviving 
tenant  for  life  died  in  1887,  and  shortly  after- 
wards A.  and  B.,  in  whom  the  mortgage  had 
become  vested  by  transfer  (there  having  pre- 
viously been  several  mesne  transfers),  contracted 
to  sell  the  property.  The  vendors  sold  as  mort- 
gagees, in  pursuance  of  the  trust  contained  in 
the  mortgage.  The  purchasers  having  raised  an 
objection  to  the  validity  of  the  title,  a  summons 
was  taken  out,  under  the  Vendor  and  Purchaser 
Act,  1874,  by  the  vendors  asking  for  a  declara- 
tion that  a  good  title  had  been  shown : — Held, 
that,  without  the  concurrence  of  all  the  persons 
at  present  entitled  to  the  equity  of  redemption, 
it  was  necessary,  in  order  to  enable  the  vendors 
to  make  a  good  title  to  the  property,  that  they 
should,  by  obtaining  statutory  declarations, 
furnish  evidence  of  the  subsistence  of  the  mort- 
gage from  the  death  of  the  mortgagor  down  to 
the  date  of  the  sale  : — Held,  also,  that  as  to  the 
costs  of  the  proceedings,  according  to  the  ordi- 
nary practice,  the  costs  of  the  statutory  declara- 
tions furnished  by  the  vendors  would,  under  s.  3, 
sub-s.  (6),  of  the  Conveyancing  Act,  1881,  be 
payable  by  the  purchasers — the  conditions  of 
sale  being  silent  as  to  such  expenses — while  the 
costs  of  the  summons  would  be  payable  by  the 
vendors.  But  held,  that  in  the  present  case  the 
proper  order  would  be  that  the  vendors'  expenses 
in  procuring  and  furnishing  the  purchasers 
with  the  evidence  of  payment  of  the  interest 
on  the  mortgage  should  be  considered  as  part 
of  the  vendors'  costs  of  the  summons,  and  that 
no  costs  of  the  summons  should  be  given  to 
either  side.  Edwards  and  Green,  In  re,  58  L.  T. 
789— Kay,  J. 

Abstract  of  Deed  not  in  Vendor's  Possession.] 

— A  vendor  is  bound  at  his  own  expense  to  pro- 
duce to  the  purchaser  a  proper  abstract  of  title, 


1939 


VENDOR    AND    PURCHASER. 


1940' 


either  for  the  statutory  period  of  forty  years,  or 
for  such  other  period  as  may  be  agreed  upon, 
and  s.  3,  sub-s.  6,  of  the  Conveyancing  Act,  1881, 
is  not  intended  to  interfere  with  the  performance 
by  the  vendor  of  that  duty,  but  proceeds  on  the 
assumption  that  the  vendor  has  produced  such 
an  abstract.  Therefore  on  an  open  contract  the 
vendor  must  bear  the  expense  of  procuring  and 
making  an  abstract  of  any  deed  forming  part 
of  the  forty  years'  title,  although  such  deed  be 
not  in  his  possession.  The  word  "abstract"  in 
that  sub-section  is  to  be  distinguished  from  the 
"abstract"  of  title  to  which  the  purchaser  is 
entitled ;  and  a  purchaser  cannot  be  said  to 
"  require  an  abstract  of  a  particular  deed,"  merely 
because  he  requires  an  abstract  of  title  for  the 
prescribed  length  of  time,  which  involves  the 
abstracting  of  that  deed.  Johnson  and  Tustin. 
In  re,  30  Ch.  D.  42  ;  54  L.  J.,  Ch.  89  ;  53  L.  T. 
281  ;  33  W.  R.  737— C.  A. 

Certificate  of  Lessor's  Surveyor.]— The  certi- 
ficate of  the  lessor's  surveyor  that  the  house  has 
been  finished  to  his  satisfaction  is  not  a  '■*  certifi- 
cate "  or  "  evidence  "  within  s.  3,  sub-s.  6,  the  ex- 
pense of  obtaining  which  must  be  borne  by  the 
purchaser,  but  it  is  part  of  the  title  itself.  Moody 
and  Totes,  In  re,  30  Ch.  D.  344  :  64  L.  J.,  Ch. 
886  ;  63  L.  T.  845  ;  33  W.  R.  785— C.  A. 

Registry  Searches.]—  Where  freehold  or  chattel 
real  property  is  offered  for  sale  under  conditions 
which  do  not  provide  for  the  expense  of  the 
registry  searches,  the  vendor  is  bound,  notwith- 
standing s.  3,  sub-s.-  6,  of  the  Conveyancing  and 
Law  of  Property  Act,  1881,  to  furnish  such 
searches  at  his  own  expense.  Murray  and 
Hegarty,  In  re,  15  L.  R.,  Ir.  510— V.-C. 


6.    JURISDICTION  UNDER  VENDOR  AND 
PURCHASER  ACT. 

Return  of  Deposit— Interest— Costa  of  Inves- 
tigating Title.] — In  exercising  the  summary 
jurisdiction  given  by  s.  9  of  the  Vendor  and 
Purchaser  Act,  1874,  the  court  has  power  not 
only  to  answer  the  question  submitted  to  it,  "but 
to  direct  such  things  to  be  done  as  are  the 
natural  consequence  of  the  decision.  Therefore, 
where  the  court  decided  that  the  vendor  had  not 
shown  a  good  title  or  answered  the  requisitions, 
the  court  ordered  the  vendor  to  return  the 
deposit,  with  interest  at  4  per  cent,  from  the  day 
when  it  was  paid,  and  to  pay  the  purchaser's 
costs  of  the  investigation  of  the  title.  Higgins 
and  IRtchman,  In  re  (21  Ch.  D.  95),  and 
Yellding  and  Wcstbrook,  In  re  (81  Ch.  D.  344), 
approved.  Hargrea/ces  and  Thompson,  In  re, 
32  Ch.  D.  454  ;  56  L.  J.,  Ch.  199 ;  55  L.  T.  239  ; 
34  W.  R.  708-^C.  A. 

On  making  an  order,  upon  a  summons  by  a 
purchaser  under  the  Vendor  and  Purchaser  Act, 
1874,  declaring  that  the  vendor  has  not  shown 
a  good  title  to  the  property,  the  court  has  juris- 
diction to  order  the  vendor  to  pay  the  pur- 
chaser's costs  of  investigating  "the  title,  and  to 
charge  them  upon  the  vendor's  interest  in  the 
property.  Hi g gins  and  Hitchman,  In  re  (21  Ch. 
D.  95),  followed.  Yeilding  and  Westbrook,  In 
re,  31  Ch.  D.  344  ;  65  L.  J.,  Ch.  496 ;  54  L.  T. 
631 ;  34  W.  R.  397— Pearson,  J. 

Whether  the  court  has  jurisdiction  upon  sum- 


mons under  s.  9  of  the  Vendor  and  Purchaser 
Act,  1874,  to  order  interest  which  has  been 
erroneously  paid  by  a  purchaser  to  be  repaid  to 
him — Quscre.  Young  and  Ilarston.  In  re,  31  Ch.. 
D.  168  ;  53  L.  T.  837  ;  34  W.  R.  84  ;  50  J.  P.  245 
— C.  A.     S.  C.  cor.  V.-C.  B.  54  L.  J..  Ch.  1144. 

Validity  of  Notice  to  Rescind  Contract]— 

Upon  a  summons  under  8.  9  of  the  Vendor  and 
Purchaser  Act,  1874,  the  court  has  jurisdiction 
to  determine  the  validity  of  a  notice  given  by  a 
vendor  to  rescind  his  contract  for  sale.  Such  a 
question  is  not "  a  question  affecting  the  existence 
or  validity  of  the  contract "  within  the  meaning 
of  8.  9,  those  words  referring  only  to  the  incep- 
tion of  the  contract.  Jackson  and  Woodbvr*. 
In  re,  37  Ch.  D.  44  ;  57  L.  J.,  Ch.  243  ;  57  L.  T.. 

753  ;  36  W.  R.  3iW— North,  J. 

Payment  of  Purchase  Honey  to  Married 
Woman  or  Trustees.] — A  married  woman  con- 
tracted to  sell  a  leasehold  vested  in  trustees  for 
her  under  a  will.  The  purchaser  objected  to  the 
title  on  the  ground  that  she  was  by  the  will 
restrained  from  anticipation.  She  took  out  a 
summons  under  the  Vendor  and  Purchaser  Act, 
1 874,  to  have  the  point  decided.  The  judge  made 
an  order  under  the  Conveyancing  and  Law  of 
Property  Act,  1881,  8.  39,  binding  her  interest  in 
the  property,  and  adjourned  into  court  the  ques- 
tion whether  she  was  restrained  from  anticipa- 
tion, directing  the  trustees  to  be  served.  The 
court  decided  that  she  was  restrained  from 
anticipation,  and  that  the  purchase  money  must 
not  be  paid  to  her,  but  to  the  trustees.  From 
this  she  appealed : — Held,  that  as  the  question 
whether  the  purchase  money  was  to  be  paid  to 
her  or  the  trustees  did  not  concern  the  purchaser, 
the  court  had  no  jurisdiction  to  decide  it  on  a 
vendor  and  purchaser  summons ;  but  the  court 
gave  the  vendor  leave  to  amend  the  summons  so 
as  to  make  it  an  originating  summons  under 
Ord.  LV.,  rule  3,  and  the  proper  parties  being 
before  the  court,  the  appeal  was  allowed  to  pro- 
ceed on  her  undertaking  so  to  amend  it  Tippett 
and  Kewbonld,  In  re,  37  Ch.  D.  444 ;  58  L.  T. 

754  ;  36  W.  R.  597— C.  A. 


II.   RESCISSION  OF  THE  CONTRACT. 

For  Misdescription,  4c.,  in  Particular!  aid 

Conditions.]— See  ante,  I.  3. 

Vender  unable  or  unwilling  to  Comply  with 
Requisitions.] — Land  was  contracted  to  be  sold 
under  a  condition  that  "  if  the  purchaser  should 
take  any  objection  or  make  any  requisition" 
which  the  vendor  was  "  unable  or  unwilling  to 
remove  or  comply  with."  the  vendor  might 
rescind  the  contract.  The  purchasers  made 
requisitions,  and  the  vendor,  for  reasons  stated, 
declined  to  comply  with  several  of  them.  The 
purchasers  insisted,  and  the  vendor  served  them 
with  notice  that  "  being  unable  or  unwilling  to 
remove  or  comply  with"  the  requisitions,  he 
rescinded  the  contract.  The  purchasers  in  reply 
denied  the  vendor's  right  to  rescind,  withdrew 
their  requisitions,  and  stated  that  they  were 
willing  to  complete : — Held,  that  the  contract 
had  been  duly  rescinded.  Dames  and  Woed,  I* 
re,  29  Ch.  D.  626  ;  64  L.  J.,  Ch.  771 ;  53  L.  T. 
177 ;  33  W.  R.  685— C.  A. 


1941 


VENDOK   AND    PURCHASER 


1942 


A  railway  company  contracted  to  Bell  some 
superfluous  land,  "  free  from  incumbrances,"  for 
8681.  The  contract  provided  that,  if  the  pur- 
chaser should  decline  to  waive  any  valid  objec- 
tion to  the  title,  the  company  might  at  any  time 
rescind  the  contract,  without  paying  the  pur- 
chaser any  costs  or  compensation.  The  abstract 
of  title  showed  that  the  land  was  subject  to  a 
perpetual  rent-charge  of  63/.  issuing  out  of  it, 
this  being  the  consideration  for  which  the  com- 
pany had  purchased  it  under  their  statutory 
powers,  for  the  making  of  a  railway,  which  by 
a  subsequent  act  they  were  authorised  to  aban- 
don. The  purchaser  required  the  company  to 
procure  the  release  of  the  land  from  the  rent- 
charge.  This  they  declined  to  do,  but  offered  to 
indemnify  him  against  it.  He  declined  to 
waive  his  requisition  : — Held,  that  the  company 
were  entitled  to  rescind  the  contract  under  the 
condition.  Great  Northern  Railway  and 
Sanderson,  In  re,  25  Ch.  D.  788  ;  53  L.  J.,  Ch. 
445  ;  50  L.  T.  87  ;  32  W.  R.  519— Pearson,  J. 

By  conditions  of  sale,  it  was  provided  that  if 
any  purchaser  should  insist  on  any  requisition 
as  to  title,  &c.,  which  the  vendors  should  con- 
sider themselves  unable,  or  on  the  ground  of 
expense,  or  for  any  other  reason  should  be  un- 
willing, to  remove  or  comply  with,  the  vendors 
might  by  writing  annul  the  sale.  On  the 
4th  July.  1884,  after  receipt  of  the  abstract  of 
title,  and  before  comparing  the  deeds,  the  pur- 
chaser sent  in  requisitions,  by  one  of  which  he 
required  a  copy  of  plans  and  certain  leases  to 
be  furnished.  By  another  requisition  he  re- 
quired an  abstract  of  certain  deeds  recited  in  an 
abstracted  deed.  By  a  third  he  required  a  copy 
of  the  schedule  to  another  deed  to  be  furnished. 
The  vendors  replied  that  they  would  furnish  the 
copy  plans  at  the  purchaser's  expense,  that  they 
must  decline  to  furnish  the  abstract  required, 
that  the  schedule  did  not  appear  to  affect  the 
property,  and  that  they  could  not  comply  with 
this  requisition.  The  purchaser,  before  receiving 
these  answers,  inspected  the  deeds,  which  were 
at  the  office  of  the  solicitors  of  the  mortgagees 
of  the  property,  and  not  in  the  possession  of  the 
vendors.  In  reply  to  the  answers,  his  solicitors 
on  the  22nd  August,  1884,  wrote  that  the  plans 
must  be  furnished  at  the  vendor's  expense,  that 
the  requisition  as  to  the  further  abstract  must 
be  complied  with,  and  that  the  copy  schedule 
must  be  supplied.  The  vendors  then  gave  a 
notice  rescinding  the  contract : — Held,  that 
there  were  good  reasons  for  refusing  to  comply 
with  the  requisitions,  that  the  conduct  of  the 
vendors  was  not  unreasonable  or  capricious,  that 
they  were  not  bound  to  state  such  reasons  when 
answering  the  requisitions,  and  that  they  had 
the  right  to  rescind.  Glenton  to  Haden,  In  re, 
53  L.  T.  434  ;  50  J.  P.  118— C.  A. 

Vendors  agreed  to  sell  a  piece  of  land,  contain- 
ing about  four  acres,  under  conditions  of  sale 
which  provided  that  the  vendors  might  rescind 
the  contract  if  they  could  not  comply  with  any 
requisition.  They  could  make  out  a  title  only  to 
three  and  a-half  acres  of  land  : — Held,  that  they 
were  entitled  to  rescind  the  contract.  Heppen- 
stall  v.  Ho*,  51  L.  T.  589  ;  33  W.  R.  30  ;  49  J.  P. 
100 — North,  J.  See  Terry  and  White,  In  re, 
ante,  col.  1929. 

Ho   Requisition  made.]—- A    sale    took 

place  under  a  condition  providing  that  all  objec- 
tions and  requisitions  should  be  sent  to  the 


vendor's  solicitors  within  fourteen  days  from 
the  delivery  of  the  abstract,  and  if  any  objec- 
tion or  requisition  should  be  made  and  insisted 
upon  which  the  vendors  should  be  unable  or 
unwilling  to  receive  or  comply  with,  the  vendors 
should  be  at  liberty  (notwithstanding  any  in- 
termediate negotiation  in  respect  thereof,  or 
attempts  to  remove  or  comply  with  the  same), 
by  notice  in  writing  to  the  purchaser,  by  whom 
such  objection  or  requisition  should  be  made,  or 
his  solicitor,  to  rescind  the  sale.  The  purchaser 
I  sent  the  conveyance  to  the  vendors  for  approval, 
and  they  requested  that  it  should  be  stated  in 
the  conveyance  that  the  property  was  sold  sub- 
ject to  a  restrictive  covenant  contained  in  a  deed 
dated  prior  to  the  commencement  of  title,  and 
which  did  not  therefore  appear  on  the  face  of 
the  abstract.  The  purchaser  objected  to  the 
restrictive  covenant  being  inserted  in  her  con- 
veyance, and  asked  for  a  copy  of  the  deed  con- 
taining it.  The  vendors  then  gave  notice  that 
they  rescinded  the  contract : — Held,  that  there 
was  no  requisition  made  or  insisted  upon,  and 
that  the  vendors  must  specifically  perform,  the 
conveyance  to  be  according  to  the  purchaser's 
draft.  Monckton  to  Gilzean,  27  Oh.  D.  555  ;  54 
L.  J.,  Ch.  257  ;  51  L.  T.  320  ;  32  W.  R.  973— 
V.-C.  B. 


Proper  Condition.] — Semble,  that  a  con- 


dition of  sale  giving  the  vendor  a  right  to* 
rescind  the  contract,  in  the  event  of  his  being 
unable  or  unwilling  to  comply  with  a  purchaser's 
requisition  as  to  conveyance,  is  not  in  general  a 
proper  condition.  Hardman  v.  Child,  or  Hard- 
man  and  Child,  In  re,  28  Ch.  D.  712  ;  54  L.  J., 
Ch.  695 ;  52  L.  T.  465 ;  33  W.  R.  544— Pear- 
son, J. 


Covenant  to  Bopair  not  Disclosed.] — 


Trustees  of  a  will  put  up  land  for  sale,  subject  to 
a  condition  that,  if  any  objection  or  requisition 
as  to  (inter  alia)  title,  or  abstract,  or  convey- 
ance should  be  insisted  on,  and  the  vendors 
should  be  unable  or  unwilling  to  remove  or 
comply  therewith,  they  should  be  at  liberty  to 
annul" the  sale.  The  abstract  delivered  to  the 
purchaser  showed  that  the  conveyance  to  the 
vendor's  testator  was  of  the  land,  together  with 
a  wall  on  the  east  side  of  it,  "  which  wall  is  to 
be  ever  hereafter  repaired  and  kept  in  repair" 
by  the  testator,  his  heirs  and  assigns.  This 
obligation  was  not  mentioned  in  the  particulars 
and  conditions  of  sale,  and  the  purchaser  did 
not  know  of  it  until  the  delivery  of  the  abstract. 
He  accepted  the  title,  and  tendered  to  the 
vendors  the  draft  of  a  conveyance  to  himself  of 
the  land  with  the  wall,  omitting  all  reference  to 
the  obligation  to  repair  the  wall.  The  vendors' 
solicitors  added  the  words  "  subject  to  and  with 
the  liability  for  ever  to  repair  the  wall  "  by  the 
purchaser,  his  heirs  and  assigns.  The  purchaser 
would  not  agree  to  the  addition,  and  the  vendors 
thereupon  gave  notice  to  rescind  the  contract. 
The  purchaser  then  brought  an  action  for  specific 
performance  of  the  contract,  claiming  the  right 
to  a  conveyance  without  the  additional  words  : — 
Held,  that,  if  the  obligation  to  repair  the  wall 
ran  with  the  land,  it  was  immaterial  whether  it 
was  mentioned  in  the  conveyance  or  not,  be- 
cause the  purchaser  would  be  bound  by  it  in 
either  case  ;  but  that  if  it  did  not  ran  with  the 
land,  the  vendors,  not  having  mentioned  it  in 


1948 


VENDOR    AND    PURCHASES. 


1944 


the  particulars  of  sale,  could  not  impose  it  on 
the  purchaser.  Consequently,  the  vendors  were 
not  entitled  to  rescind  the  contract.    lb. 


III.    SPECIFIC    PEB70EXANCE    OF    THE 
CONTRACT.—  See  Specific  Performance. 


IV.    BIGHTS  AND  DUTIES  OF  VENDOB 
AND  PURCHASES. 

1.  IN  GENERAL. 

Sale  with  Possession — Advantage  incidental 
to  Reversion  —  Dilapidations.] — A  dwelling- 
house  was  put  up  for  auction  on  the  2nd  March, 
1887.  The  particulars  announced  the  sale  as 
"  with  possession,"  and  stated  that  the  purchaser 
could  take  the  late  tenant's  fixtures  at  a  valuation 
if  he  desired.  The  conditions  provided  that  the 
purchase  should  be  completed  on  the  25th  March. 
There  was  no  mention,  except  as  above,  in  the 
particulars  and  conditions  of  any  tenancy.  B. 
purchased  the  house  at  the  auction.  It  was  in 
evidence  that  the  auctioneer  stated  at  the  auction 
that  the  house  was  not  in  good  decorative  repair. 
It  appeared  from  the  abstract  delivered  to  the 
purchaser  that  the  house  had  been  let  upon  a 
lease,  which  had  been  determined  by  notice 
expiring  on  the  25th  March,  1887,  and  which 
contained  covenants  by  the  lessee  to  keep  and 
deliver  up  the  premises  in  good  repair.  On  the 
20th  January,  1887,  a  receiving  order  in  bank- 
ruptcy had  been  made  against  the  lessee,  and  an 
arrangement  had  afterwards  been  come  to  giving 
the  vendor  power  to  take  immediate  possession. 
The  vendor  had  carried  in  a  proof  in  the  lessee's 
bankruptcy  for  damages  for  breach  of  the  repair- 
ing covenants.  The  purchaser  delivered  a  requi- 
sition claiming  to  be  entitled  to  any  sum  re- 
covered by  the  vendor  from  the  lessee  in  respect 
of  his  breach  of  covenant  to  repair.  This  was  a 
summons  taken  out  by  the  vendor  under  the 
Vendor  and  Purchaser  Act,  1874,  to  determine 
whether  the  purchaser  was  entitled  to  the  sum 
so  claimed  : — Held,  that  the  purchaser  had  con- 
tracted for  the  purchase  of  the  possession  of  the 
house  as  it  stood,  and  could  not  be  entitled  to  the 
claim  for  damages  for  breach  of  the  covenant  to 
repair,  because  that  claim  was  incident  to  the 
reversion  of  the  lease,  which  he  had  not  pur- 
chased. JSdie  and  Brown,  In  re,  58  L.  T.  307 — 
North,  J. 

Payment  of  Paving  Expenses  in  Metropolis.] 

— See  Egg  v.  Blaynvy,  ante,  col.  1220. 

Under     Public     Health     Act.]  —  See 

Bettesworth  and  Richer,  In  re,  ante,  col.  866. 

Discharge  of  Incumbrance.] — A  vendor  who 
contracts  to  sell  only  such  right  or  interest,  if 
Any,  as  he  has,  is  bound  to  convey  such  right  or 
interest  free  from  an  existing  incumbrance. 
Go  old  v.  Birmingham,  Bud  leg  and  District 
Bank,  58  L.  T.  560— Kekewich,  J. 

Conveyancing  Act,   1881,    s.   5.]— The 

court  will  not,  under  the  power  given  to 
it  by  s.  5  of  the  Conveyancing  Act,  1881, 
compel    a    vendor    of    land    to     pay    money 


into  court  for  the  purpose  of  discharging 
an  incumbrance  upon  the  land,  when  the 
result  of  so  doing  would  be  to  inflict  a  great 
hardship  on  him,  as,  for  instance,  if  the  incum- 
brance is  a  perpetual  rent-charge,  and  the  sum 
necessary  to  procure  its  discharge  would  far 
exceed  the  amount  of  the  purchase-money  pay- 
able to  the  vendor.  Great  Northern  Railway 
and  Sanderson,  In  re,  25  Ch.  D.  788 ;  53  L.  J., 

'  Ch.  445  ;  50  L.  T.  87  ;  32  W.  R.  519— Pearson, 

I  J. 

A  railway  company  contracted  to  sell  some 
superfluous  land,  "  free  from  incumbrances/1  for 
868/.  The  abstract  of  title  showed  that  the  land 
was  subject  to  a  perpetual  reot-charge  of  63/. 
issuing  out  of  it,  this  being  the  consideration  for 
which  the  company  had  purchased  it  under  their 
statutory  powers,  for  the  making  of  a  railway, 
which,  by  a  subsequent  act,  they  were  authorised 
to  abandon.  The  purchaser  required  the  com- 
pany to  procure  the  release  of  the  land  from  the 
rent-charge.  This  they  declined  to  do,  but 
offered  to  indemnify  him  against  it.  He  declined 
to  waive  his  requisition  : — Held,  that  the  com- 
pany were  not  bound  to  apply  to  the  court  under 
s.  5  of  the  Conveyancing  Act,  1881,  to  declare 
the  land  freed  from  the  rent-charge,  or  to  take 

;  any  other  steps  to  procure  the  release  of  the 
rent-charge.    lb. 


Enlargement  of  Long  Term  into  Fee— "Bent 
having  no  Honey  Value."] — Land  was  demise*! 
for  a  term  of  500  years  from  Michaelmas,  1646, 
at  the  yearly  rent  of  **  one  silver  penny,  if  law- 
fully demanded  "  : — Held,  that  this  rent  was  a 
14  rent  having  no  money  value,"  within  the 
meaning  of  8.  65  of  the  Conveyancing  Act,  1881, 
and  that  the  owner  of  the  term  in  1884  bad 
power  under  that  section  to  enlarge  the  term 
into  a  fee.  CJiapman  and  Jfobbs,  In  re,  29  Ch.  D. 
1007  ;  54  L.  J.,  Ch.  810  ;  52  L.  T.  805 ;  33  W.  R. 
703— Pearson,  J.  S.  P.  Smith  and  Stott,  In  rr. 
29  Ch.  D.  1009,  n.  ;  48  L.  T.  512  ;  31  W.  R.  411 
-Fry,  J. 


2.  CONVEYANCE. 

Parties — Sale  by  Trustees— Equitable  Teaait 
for  life.] — Certain  property  having  been  par- 
chased  by  a  company  from  trustees  who  bad  a 
power  of  sale,  the  purchasers  required  that  the 
equitable  tenant  for  life  of  the  property,  at  whose 
request  the  sale  was  made,  should  enter  into  co- 
venants for  title.  One  of  the  conditions  of  sale 
was,  that  "  the  vendors,  being  trustees,  are  to 
be  required  only  to  give  the  statutory  covenant 
against  incumbrances  implied  by  reason  of  their 
being  expressed  to  convey  as  trustees :  "—Held, 
that  the  purchasers  were  entitled  to  require  the 
equitable  tenant  for  life  to  enter  into  the  usual 
limited  covenants  for  title,  and  that  the  condi- 
tions of  sale  did  not  deprive  them  of  this  right. 
Sawyer  and  Baring's  Contract,  In  re,  53  L.  Jn 
Ch.  1104;  61  L.  T.  356 ;  33  W.  R.  26— Kay,  J. 


n 


Bare  Trustees  " — Harried  Woman.]— 
A  testator  devised  his  real  estate  to  trustees  for 
sale,  who  were  married  women,  one  of  them 
having  married  before  and  the  other  after  the 
Married  Women's  Property  Act,  1882.  Both  of 
them  also  took  beneficial  interests  in  the  pro- 
ceeds of  sale.    Under  the  judgment  in  an  action. 


1945 


VENDOR   AND    PURCHASER 


1946 


for  the  administration  of  the  testator's  estate, 
part  of  the  real  estate  was  sold  by  the  trustees, 
the  purchaser  paying  his  purchase-money  into 
court :  —  Held,  that  the  married  women  were 
w  bare  trustees "  within  s.  6  of  the  Vendor  and 
Purchaser  Act,  1874,  and  that  the  conveyance  to 
the  purchaser  did  not  require  the  concurrence  of 
the  husbands,  or  acknowledgment  under  the 
Fines  and  Recoveries  Act.  Docwra,  In  re,  Doc- 
wra v.  Faith,  29  Ch.  D.  693  ;  54  L.  J.,  Ch.  1121; 
53  L.  T.  288 ;  33  W.  R.  574— V.-C.  B. 


Condition  —  Legatee!  not  to  be.]  —  A 


testator  died  in  April,  1868,  and  left  all  his 
property  to  trustees  upon  trust  to  pay  his  debts, 
and  subject  thereto  in  trust  for  his  wife  and 
children  in  equal  shares.  In  October,  1885, 
R.,  one  of  the  trustees,  who  had  alone  proved 
the  will,  put  up  for  sale,  as  executrix,  a  portion 
of  the  assets,  consisting  of  a  house  in  Dublin 
held  for  a  term  of  years.  One  of  the  conditions 
of  sale  provided  that  the  purchaser  should  not 
require  any  of  the  legatees  to  be  parties  to  the 
conveyance.  C.  having  purchased  the  premises, 
objected  to  the  title,  upon  the  ground  that  a 
good  title  could  not  be  made  without  the  con- 
currence of  the  legatees  of  the  leasehold  and  the 
other  trustee : — Held,  that  the  purchaser  was 
precluded  by  the  condition  of  sale  from  raising 
the  point.  Ryan  and  Cavanagh,  In  re,  17  L.  R.. 
In  42— V.-C. 

Validity— Perpetuity — Covenant  to  reconvey.] 
— By  his  will  a  testator  devised  his  property  to 
trustees  upon  trust  for  his  eldest  son  for  life, 
with  remainder  in  trust  for  his  first  and  other 
Mons  in  tail  male,  with  remainder  in  trust  for  the 
testator's  second  and  third  sons  successively  for 
life  with  the  like  limitations  to  their  first  and 
other  sons  respectively,  with  remainder  in  trust 
for  his  grandson  for  life,  with  remainder  to  his 
first  and  other  sons  in  tail  male,  with  remainders 
over.  In  accordance  with  a  power  to  that  effect 
in  the  will,  the  trustees  sold  a  portion  of  the  set- 
tled land  to  a  tenant  for  life,  and  by  a  separate 
deed  he  covenanted  with  the  trustees  that  he 
would  not,  *'  during  the  continuance  of  the 
strict  settlement,"  sell  or  dispose  of  the  land 
otherwise  than  as  therein  mentioned ;  and  that 
he  would,  in  case  he  should  at  any  time  thereafter 
"during  the  continuance  of  the  aforesaid  settle- 
ment,"  be  called  upon  by  the  trustees  so  to  do, 
and  upon  being  reimbursed  the  purchase-money 
and  costs,  reconvey  all  such  of  the  lands  so  sold 
to  him  as  might  then  remain  unsold  or  undis- 
jjoscd  of : — Held,  that  the  covenant  was  void  as 
tending  to  a  perpetuity.  Trrcelyan  v.  Tretelyan, 
r,3  L..  T.  853— V.-C.  B. 

Restrictive  Covenant  between  Purchasers — 
Two  Lota— Withdrawal  of  One  Lot.] — Two  lots 
of  land  were  put  up  for  sale  under  conditions 
which,  after  reciting  that  the  vendor  was  pos- 
sessed of  adjoining  property  not  included  in  the 
sale,  provided  that  each  purchaser  should,  in  his 
conveyance,  enter  into  a  covenant  with  the 
vendor  and  the  purchaser  of  the  other  lot  not  to 
use  any  building  on  his  lot  as  a  public-house, 
and  to  the  conditions  was  annexed  a  form  of 
covenant  to  that  effect.  No  provision  was  made 
for  the  case  of  a  lot  remaining  unsold.  Lot  2 
was  purchased  at  the  sale,  and  the  purchaser 
signed  a  contract  embodying  the  conditions. 
Lot  1  remained  unsold : — Held,  that  the  pur- 


chaser was  boand  to  enter  into  the  restrictive 
covenant  with  the  vendor.  Mordy  and  Cowman, 
In  re,  51  L.  T.  721— C.  A. 

Leaseholds — Bight  of  Indemnity  against  other 
Lots— Custody  of  Original  Lease.] — A  leasehold, 
subject  to  the  yearly  rent  of  12/.  10*.,  was  put 
up  for  sale  by  auction  in  five  lots,  under  condi- 
tions of  sale,  one  of  which  provided  that  each  lot 
would  be  sold  subject  to  the  entire  rent,  but 
"  with  right  of  indemnity  against  the  other  lots, 
save  as  to  12/.  10*.,"  and  another,  that  the  ori- 
ginal lease  would  be  handed  to  "  the  purchaser 
of  the  largest  lot  in  amount."  At  the  auction 
only  two  lots  were  sold,  one  to  0.  for  200/.,  and 
the  other  to  S.  at  the  same  price.  A  few  days 
afterwards,  O.  sent  in  a  proposal  to  purchase 
another  lot  for  160/.,  subject  to  the  same  condi- 
tions of  sale,  which  offer  was  accepted.  S.  sub- 
sequently executed  an  agreement  with  O.,  sur- 
rendering in  his  favour  a  claim  which  he  (S.) 
might  have  to  the  original  lease.  The  two  other 
lots  remained  unsold  0.  claimed  the  custody  of 
the  original  lease,  and  to  have  inserted  in  the  con- 
veyance of  his  two  lots  to  him  a  clause  creating 
a  rent-charge  upon  the  other  three  lots  equiva- 
lent to  the  amount  of  their  aliquot  share  of  the 
rent,  with  powers  of  distress  and  entry  for  its 
enforcement: — Held,  upon  a  summons  issued 
by  0.,  under  the  Vendor  and  Purchaser  Act, 
1874,  that  he  was  entitled  to  insist  upon  his 
requisition,  save  as  to  the  creation  of  a  rent- 
charge.  Dohcrttfs  Contract,  In  re,  15  L.  R.,  Ir. 
247— C.  A. 

■ 

Covenant  for  Quiet  Enjoyment  —  Breach  — 
Decree — No  Disturbance  in  Possession.] — In  a 

conveyance  of  land  by  the  defendant  to  the 
plaintiff,  the  defendant  covenanted  for  title  and 
quiet  enjoyment  notwithstanding  any  act  or 
thing  done  or  suffered  by  him  or  any  of  his 
ancestors  or  predecessors  in  title.  After  the  con- 
veyance a  decree  was  made  in  a  suit  in  Chancery 
in  which  the  plaintiff,  though  not  a  party,  was 
represented  as  being  one  of  a  class  of  persons 
against  whom  the  suit  was  brought,  and  by  the 
decree  the  land  so  conveyed  by  the  defendant 
was  declared  to  be  subject  to  a  general  right  of 
common  over  it : — Held,  that  the  decree  alone, 
without  any  entry  or  actual  disturbance  of  the 
plaintiff  in  his  possession,  was  no  breach  of  the 
defendant's  covenant  for  quiet  enjoyment. 
Howard  v.  Maitland,  11  Q.  B.  D.  695  ;  53  L.  J., 
Q.  B.  42  ;  48  J.  P.  164— C.  A. 

Held,  also,  that  the  court,  in  the  absence  of 
evidence  of  a  grant  of  such  right  of  common  by 
some  predecessor  in  title  of  the  defendant,  would 
not  infer  that  there  must  have  been  such  grant 
so  as  to  be  a  breach  of  his  covenant  for  title 
within  the  meaning  of  the  covenant,    lb. 

Reservation  of  Easements  in.]  —  See  Ease- 
ment. 

3.    PURCHASE  MONEY, 
a.    Payment  of. 

Attendance  of  Trustees  —  Authority  to  Co- 
trustee.]— Where  trustees  are  vendors  a  pur- 
chaser from  them  has,  as  a  general  rule,  a  right 
to  insist  upon  paying  the  purchase-money  in  the 
presence  of  all  the  trustees,  or  into  a  bank  to 
their  joint  account,  and  is  not  bound  to  pay  the 


1947 


VENDOR    AND    PURCHASER. 


1948 


money  to  one  of  their  number  on  a  written 
authority  from  his  co-trustees.  Payment  in  the 
presence  of  all  is  payment  to  all  if  they  accept 
the  payment.  Freehold  and  leasehold  property 
having  been  agreed  to  be  purchased  by  the 
Metropolitan  Board  of  Works  from  the  trustees 
(three  in  number)  of  a  certain  will,  the  board 
made  a  requisition  that  the  trustees  should 
attend  personally,  on  completion  of  the  pur- 
chase, to  receive  the  purchase-moneys,  or  that 
they  should  give  to  the  board  a  written  direction, 
signed  by  the  trustees,  for  payment  of  the  same 
purchase-moneys  to  the  joint  account  at  some 
bank.  The  trustees  objected  to  this,  and  desired 
that  the  moneys  should  be  paid  to  one  of  their 
number,  to  whom  they  proposed  to  give  their 
written  authority  to  receive  it: — Held,  that  the 
principle  in  Bellamy  and  Metropolitan  Board  of 
Work*  (24  Ch.  D.  387)  applied  to  the  case,  and 
that  the  requisition  must  be  complied  with. 
Floicer  v.  Metropolitan  Board  of  Works,  In  re, 
27  Ch.  D.  592  ;  53  L.  J.,  Ch.  955  ;  61  L.  T.  257  ; 
32  W.  R.  1011— Kay,  J. 

Apportionment  of— Sale  under  power  in  Mort- 
gage— Separate  Receipts.] — Trustees  advanced 
money  on  mortgage,  a  deed  containing  the 
usual  power  of  sale  and  a  declaration  that  the 
receipts  of  the  mortgagees  or  their  assigns  should 
be  sufficient  discharges  to  purchasers,  and  that 
the  power  of  sale  might  be  exercised  by  any 
person  who  for  the  time  being  should  be  entitled 
to  receive  and  give  a  discharge  for  the  moneys 
for  the  time  being  owing  upon  the  security  of 
the  mortgage.  By  a  memorandum  of  even  date 
it  was  declared  that  the  mortgage-money 
belonged  to  the  mortgagees  in  certain  unequal 
shares.  Subsequently  the  mortgagees  assigned 
their  shares  separately  to  two  sets  of  trustees, 
who,  in  exercise  of  the  power  of  sale,  offered 
part  of  the  property  for  sale  by  auction.  The  pur- 
chaser of  one  of  the  lots  accepted  the  title,  but 
required  that  the  purchase-money  should  be 
apportioned  between  the  two  sets  of  trustees, 
and  that  each  set  of  trustees  should  give  a 
separate  receipt,  and  that  this  should  appear  on 
the  conveyance.  On  a  summons  taken  out  for 
the  opinion  of  the  court,  the  court  held  that 
a  joint  receipt  of  the  vendors  was  sufficient,  and 
that  no  apportionment  was  necessary.  On 
appeal  from  that  decision: — Held,  by  Cotton, 
L.J.,  that,  as  there  might  be  a  question  whether 
the  vendors  had  a  power  to  sell  at  all,  the  appeal 
ought  to  be  dismissed  on  the  ground  that  it  had 
not  been  brought  before  the  court  in  such  a 
manner  that  the  court  could  properly  adjudicate 
upon  it.  Held,  by  Lindley,  L.J.,  and  Lopes, 
L  .J.,  that  the  appeal  ought  also  to  be  dismissed 
on  its  merits,  as  upon  the  true  construction 
of  the  power  of  sale  in  the  mortgage  the 
persons  beneficially  entitled  to  the  money  had 
power  to  sell  and  to  give  receipts,  and  that 
the  joint  receipt  of  the  vendors  was  therefore 
sufficient,  and  that  no  apportionment  was 
necessary.  Parker  and  Beech,  In  re,  56  L.  J., 
Ch.  358  ;  56  L.  T.  95  ;  35  W.  R.  353— C.  A. 


b.    Interest  on. 

Vendor's  Delay.] — Where  there  is  a  condition 
that  the  purchaser  should  pay  interest  from  the 
day  fixed  for  completion  in  case  of  delay  from 
any  cause  "  except  the  wilful  neglect  or  default 


of  the  vendor,"  the  purchaser  cannot  relieve  him- 
self from  the  liability  to  pay  interest  by  setting 
apart  the  unpaid  purchase-money  and  giving  the 
vendor  notice  of  such  appropriation,  Gold* 
and  Xorton,  In  re,  (33  W.  R.  333)  not  followed. 
Riley  to  Streatfield,  In  re,  34  Ch.  D.  386;  56 
L.  J.",  Ch.  442 ;  56  L.  T.  48  ;  35  W.  R.  470- 
North,J. 

Where  the  delay  in  the  completion  of  a  pur- 
chase by  the  stipulated  day  arises  from  the  de- 
fault of  the  vendor,  and  the  purchaser  then  deposits 
his  purchase-money  in  a  bank  to  a  separate 
account,  and  gives  notice  of  the  fact  to  the  vendor, 
the  purchaser  is  relieved,  as  from  the  receipt  of 
such  notice  by  the  vendor,  from  payment  of  in- 
terest on  his  purchase-money,  notwithstanding 
that  he  has  been  in  possession  or  receipt  of  the 
rents  under  the  contract,  and  that  the  contract 
provides  that  he  shall  pay  interest "  if  from  any 
cause  whatever  "  the  purchase  is  not  completed 
on  the  day  named.  The  vendor  is,  however, 
entitled  to  the  interest  (if  any)  allowed  by  the 
bank  on  the  deposit.  Gold*  and  Xorton,  In  rr, 
52  L.  T.  321  ;  83  W.  R.  333— Kay,  J. 


"  Wilful  Default"  ]— Conditions  of  sale 


provided  that  the  purchase  was  to  be  completed 
by  the  8th  of  September,  and  that  "if  from 
any  cause  whatever  other  than  wilful  default 
on  the  part  of  the  vendor "  completion  of  the 
purchase  was  delayed  beyond  that  day,  the 
purchase-money  was  to  bear  interest  from 
that  day  to  the  day  of  actual  payment  The 
property  was  in  mortgage,  and  the  draft  con- 
veyance was  not  returned  approved  by  the  mort- 
gagees to  the  purchasers  until  the  6th  of  Sep- 
tember. On  the  8th  of  September  the  engross- 
ment was  sent  to  the  vendor's  solicitors,  but  the 
vendor  had  gone  abroad  for  his  autumn  holiday 
on  the  6th  of  September,  and  the  engrossment 
executed  by  him  was  noc  returned  until  the  18th 
of  September.  The  mortgagees  were  also  out  of 
town,  and  the  vendor's  solicitors  declined  to 
incur  the  expense  of  a  special  messenger  to 
procure  execution  by  them.  The  purchase  was 
not  completed  until  the  14th  of  October: 
— Held,  on  summons  by  the  purchaser  under  the 
Vendor  and  Purchaser  Act,  1874,  s.  9,  for 
recovery  of  interest  on  the  purchase-money  paid 
by  them  under  protest,  that  by  his  going  abroad 
two  days  before  the  time  known  by  him  to  hare 
been  fixed  for  completion  of  the  purchase,  there 
had  been  so  far  "  wilful  default  on  the  part  of 
the  vendor  "  within  the  exception  contained  in 
the  conditions  of  sale,  that  the  purchasers  were 
entitled  to  recover  out  of  the  interest  paid  by 
them  a  sum  proportionate  to  the  day.  ?**$ 
and  Bariton,  In  re.  31  Ch.  D.  168 ;  53  Li 
837  ;  34  W.  R.  84  ;  50  J.  P.  245— C.  A. 

Deduction  of  Bents  and  Profits.]— An  order 
was  made  in  an  administration  action  directing 
the  freehold  property  of  the  testator  to  be  pot 
up  for  sale  by  auction.  The  conditions  of  «*k 
provided  that  each  purchaser  should  pay  the 
balance  of  his  purchase-money  (after  dedocung 
the  amount  paid  as  deposit)  into  court  to  the 
credit  of  the  action,  on  or  before  21st  July,  1W 
or  in  default,  should  be  charged  interest  at  the 
rate  of  5  per  cent,  per  annum  until  payment  ox 
the  purchase-money ;  and  that  upon  such  pay- 
ment the  purchaser  should  be  entitled  to  posses- 
sion, or  to  the  rents  and  profits,  as  from  21st 
July,  1885.    The  pnrchaser  of  one  of  the  lots 


r 


1949 


VENDOR    AND    PURCHASER. 


1950 


having  refused  to  comply  with  this  condition,  a 
summops  was  taken  out,  upon  which  an  order 
was  made  that  on  or  before  the  7th  April,  1886, 
or  subsequently  within  seven  days  after  service 
of  the  order,  the  purchaser  should  lodge  in  court 
the  balance  of  his  purchase-money,  after  de- 
ducting the  deposit,  with  interest  thereon,  from 
the  21st  July,  1 885.    The  purchaser  then  asked 
that,  after  the  direction  for  the  payment  of  the 
money,  less  the  deposit,  there  should  be  inserted 
in  the  order  the  words,  "  Less  the  rents  and 
profits  of  the  said  premises  from  the  21st  July, 
1885."    He  contended  that  there  ought  to  be  no 
difference  made  between  a  completion  of  a  pur- 
chase where  the  property  was  being  sold  under 
the  direction  of  the  court  and  where  sold  outside 
the  court  in  the  usual  way,  the  course  then 
adopted  invariably  being  to  allow  the  rents  and 
profits  to  be  set  off  against  the  interest,  the 
balance  being  cither  paid  or  received  by  the 
•purchaser : — Held,  that  the  practice,  in  circum- 
stances like  the  present,  was  not  to  allow  the 
addition  of  the  words  referred  to ;  and  that, 
therefore,  the  purchaser's  application  must  be 
refused.    Smith,  In  re,  Day  v.  Bonaini,  55  L.  T. 
329-C.  A. 

o.  Lien  for. 

Express  Stipulation— Substitution.]— A  bank- 
ing company  entered  into  an  agreement  dated 
the  29th  May,  188G,  to  sell  certain  paper-mills 
and  machinery  to  the  L.  Company  for  20,000/. 
to  be  paid  by  instalments.    By  clause  2  of  the 
■agreement  it  was  provided  that  upon  payment 
of  the  first  two  instalments  the  bank  should 
convey  the  premises  to  the  L.  Company,  upon 
their  executing  a  mortgage  for  the  balance  of 
the  purchase-money,  and    that  the    mortgage 
•should  contain  a  clause  enabling  the  bank,  in 
case  the  business  of  the  L.  Company  should  be 
suspended,  to  re-enter  and  take  possession  of  the 
premises,  and  of  everything  which  should  have 
been  built  or  placed  thereon,  and  which  should 
not  require  registration  within  the  Bills  of  Sale 
Act,  1878,  and  to  hold  the  same  for  their  own 
use  and  benefit  absolutely,  but  without  prejudice 
to  the  liability  of  the  L.  Company  for  the  unpaid 
balance  of   the  purchase-money.     This  agree- 
ment was  not  registered  as  a  bill  of  sale.    The 
first  two  instalments  of   the    purchase-money 
were  paid,  but  no  conveyance  or  mortgage  of  the 
property   was    executed   in    pursuance  of  the 
agreements.    The  L.  Company  entered  into  and 
held  possession  of  the  property  until  a  winding- 
up  order  was  made  on  the  7th  February,  1887. 
The  bank  thereupon  re-entered  on  the  property. 
The  official  liquidator  of  the  L.  Company  asked 
by  summons  for  delivery  up  of  a  paper-making 
machine  and  all  other  trade  machinery  attached 
to  the  mills.    The  bank  claimed  possession  of 
the  fixtures  and  trade  machinery  under  their 
vendors'  lien  : — Held,  that  the  position  of  the 
parties  under  the  agreement  was  the  same  as  if 
a  conveyance  and  mortgage  of  the  property  had 
been  actually  executed,  and  that  the  bank  had 
no  vendor's  lien  for  unpaid  purchase-money,  as 
an  express  stipulation  had  been  substituted  for 
such   lien.      London   and    Lancashire    Paper 
Mills  Company,  In  re,  58  L.  T.  798— North,  J. 

Land  in  Btgister  County— Purchasers  without 
sToties.  J — Trustees  of  a  charity  conveyed  land  in 
Yorkshire  to  B,  and  W.,  part  of  the.  purchase- 


money  remaining  unpaid,  and  allowed  R.  and  W. 
to  register  the  conveyance,  knowing  that  they 
wanted  to  do  so  in  order  to  re-sell  the  land  in 
lots  : — Held,  that  the  trustees  had,  by  their  con- 
duct, precluded  themselves  from  asserting  their 
lien  for  unpaid  purchase-money  against  bona 
fide  sub-purchasers  from  R.  and  W.  without 
actual  notice,  though  the  sub-purchasers  had  not 
examined,  as  it  was  their  duty  to  have  done,  the 
conveyance  to  B.  and  W.,  a  memorial  of  which 
was  registered,  and  though  the  estate  of  one  of 
the  sub-purchasers  was  equitable  only.  Kettle- 
well  v.  Watson,  26  Ch.  D.  501  ;  53  L.  J.,  Ch.  717  ; 
51  L.  T.  135  ;  32  W.  R.  865— C.  A. 

Registration.] — A  vendor's  lien  for  unpaid 
purchase-money  need  not  be  registered  under 
2  &  3  Anne,  c.  4.    lb. 

Notice.] — The  mortgagee  of  a  sub-purchaser's 
lot  left  it  to  R.  and  W. "  to  manage  the  business  " : 
— Semble,  he  was  not  affected  with  constructive 
notice  of  the  lien.    lb. 

Sale  to  Railway  Company — Injunction.] — An 

unpaid  vendor  of  land  taken  by  a  railway  com- 
pany is  entitled  to  the  usual  relief  of  unpaid 
vendors  ;  therefore  in  an  action  by  him  against 
the  company  for  the  enforcement  of  his  lien  on 
the  land,  and  in  default  for  possession,  the  court, 
in  event  of  such  default,  will,  without  requiring 
the  land  to  be  offered  for  sale,  grant  an  injunc- 
tion against  the  company  from  using  the  land, 
and  make  an  order  for  delivery  up  of  possession 
to  the  vendor.  Allgood  v.  Merrybent  and  Dar- 
linqton  Railway.  33  Ch.  D.  571  ;  55  L.  J.,  Ch. 
743  ;  55  L.  T.  835  ;  35  W.  R.  180—  Chitty,  J. 


4.     DEPOSIT. 

Forfeiture— Purchaser's  Tailure  to  Complete.] 

— On  a  sale  of  real  estate  the  purchaser  paid 
500/.,  which  was  stated  in  the  contract  to  be 
paid  "  as  a  deposit,  and  in  part  payment  of  the 
purchase-money."  The  contract  provided  that 
the  purchase  should  be  completed  on  a  day 
named,  and  that  if  the  purchaser  should  fail  to 
comply  with  the  agreement,  the  vendor  should 
be  at  liberty  to  re-sell  and  to  recover  any  defi- 
ciency in  price  as  liquidated  damages.  The  pur- 
chaser was  not  ready  with  his  purchase-money, 
and  after  repeated  delays,  the  vendor  re-sold  the 
property  for  the  same  price.  The  original  pur- 
chaser having  brought  an  action  for  specific 
performance  : — Held,  that  the  deposit,  although 
to  be  taken  as  part  payment  if  the  contract  was 
completed,  was  also  a  guarantee  for  the  per- 
formance of  the  contract,  and  that  the  plaintiff, 
having  failed  to  perform  his  contract  within  a 
reasonable  time,  had  no  right  to  a  return  of  the 
deposit.  Painter  v.  Temple  (9  Ad.  &  E.  508)  dis- 
tinguished. Howe  v.  Smith,  27  Ch.  D.  89 ;  53 
L.  J.,  Ch.  1055  ;  50  L.  T.  573  ;  32  W.  R.  802  ;  48 
J.  P.  773— C.  A. 

An  agreement  for  sale  contained  the  two  fol- 
lowing provisions : — (9)  As  an  earnest  hereof 
the  purchaser  has  this  day  paid  into  the  hands 
of  S.  the  sum  of  500/.  as  a  deposit,  the  deposit  to 
form  part  of  the  purchase-money  to  be  paid  on 
the  day  of  possession ;  and  (10)  should  either 
vendor  or  purchaser  refuse  or  neglect  to  carry 
out  the  above  arrangement  on  her  or  his  part, 


1951 


VENDOE    AND    PURCHASER. 


1952 


the  one  so  refusing  or  neglecting  shall  pay  to 
the  other  the  sum  of  5002.  as  or  in  the  nature  of 
liquidated  damages.  The  purchaser  was  unable 
to  carry  out  his  part  of  the  agreement.  The 
vendor  brought  this  action  for  specific  perform- 
ance of  the  agreement,  or,  in  the  alternative, 
payment  of  the  500/.  as  liquidated  damages  : — 
Held,  that  the  meaning  of  the  agreement  was 
that  the  500/.  should  be  recoverable,  not  if  some 
minute  provision  were  not  carried  out,  but  if, 
owing  to  the  fault  of  either  party,  the  agreement 
were  not  carried  out  at  all,  and  that  that  sum 
could  be  recovered  in  this  case  as  liquidated 
damages : — and  further,  that  it  could  also  be 
recovered  if  the  action  were  looked  upon  as  an 
action  to  enforce  the  forfeiture  of  the  deposit. 
Catton  v.  Bennett,  51  L.  T.  70— Kay,  J. 


Rescission — Defect  of  Title  subsequently 


discovered.] — A  purchaser  of  land  is  not  entitled 
to  have  the  contract  set  aside  for  defect  of  title 
after  completion,  or  after  rescission  consequent 
upon  the  purchaser's  default.  The  conditions  in 
a  contract  for  sale  of  land  provided  that  the  pur- 
chaser should  pay  a  deposit,  and  that  if  he  failed 
to  comply  with  the  conditions  his  deposit  should 
be  forfeited,  and  the  vendors  should  be  at  liberty 
to  resell.  The  purchaser  paid  the  deposit,  ac- 
cepted the  title,  and  prepared  draft  conveyance, 
which  was  approved,  but  when  the  time  for 
completion  arrived  he  could  not  find  the  residue 
of  the  purchase-money.  The  vendors  therefore 
rescinded  the  contract.  Three  years  afterwards, 
on  a  sale  to  another  purchaser,  it  was  decided 
that  the  title  of  the  vendors  was  bad,  owing  to 
a  defect  which  appeared  on  the  face  of  the 
abstract  delivered  to  the  first  purchaser.  The 
first  purchaser  therefore  brought  an  action  to 
recover  his  deposit  on  the  ground  of  mutual  mis- 
take and  failure  of  consideration  : — Held,  that 
he  was  not  entitled  to  recover  the  deposit.  Want 
v.  Stallibrass  (8  L.  R.,  Ex.  175)  and  Hart  v. 
Sioaine  (7  Ch.  D.  42)  distinguished.  Soper  v. 
Arnold,  37  Ch.  D.  96;  57  L.  J.,  Ch.  145;  57 
L.  T.  747  ;  36  W.  R.  207 ;  52  J.  P.  374— C.  A. 
Affirmed  in  H.  L.,  W.  N.  1889,  p.  156. 

Return  of— Misdescription  in  Particulars.] — 
See  cases  ante,  I.,  3. 


V.   COVENANTS  BINDING  ON  PURCHASER. 

Building  Land— Plots — Rights  of  Purchaser.] 

— An  estate  was  laid  out  for  building,  and  a 
great  part  of  it  had  been  sold.  In  1882  some  of 
the  unsold  part  was  put  up  for  sale  by  auction, 
with  a  condition  that  the  purchaser  of  certain 
lots  was  to  covenant  to  expend  on  each  of  the 
dwelling-houses  built  not  less  than  1,2002.  As 
to  some  lots  there  were  other  restrictions  ;  and 
some  were  free  from  restriction.  One  of  the 
plaintiffs  bought  one  of  the  free  lots,  and  also  a 
restricted  lot,  not  being  one  of  the  first-named. 
Next  year  the  unsold  lots,  together  with  another 
piece  of  land  forming  together  the  whole  of  the 
unsold  parts  of  the  estate,  were  put  up  for  sale, 
with  similar  conditions  as  to  the  first-named 
lots  ;  but  as  to  other  lots  free  from  restrictions. 
All  the  lots  were  then  sold,  except  the  first- 
named  lots,  both  plaintiffs  being  purchasers  of 
free  lots.  The  first-named  lots  were  in  the  fol- 
lowing year  sold  to  the  defendant,  who  entered 
into  a  covenant  with  the  vendors  not  to  build 


houses  of  leas  value  than  1,200/.  He  now  pro- 
posed to  build  houses  of  less  value  .-—Held,  that 
the  doctrine  of  Nottingham  Patent  Briek  and 
Tile  Company  v.  Butler  (16  Q.  B.  D.  778),  ought 
to  be  extended  to  cover  the  present  case,  and 
that  the  plaintiffs  were  entitled  to  restrain  the 
defendant  from  building  houses  of  less  value. 
The  plaintiff  in  such  a  case  is  not  obliged  to 
prove  damage  in  order  to  obtain  an  injunction. 
Collins  v.  Castle ,  36  Ch.  D.  243 ;  57  L.  J.,  Ch.  76 ; 
57  L.  T.  764  ;  36  W.  R.  300— Kekewich,  J.  See 
also  Nottingham  Patent  Brick  and  Tile  Compaq 
v.  Butler,  ante,  col.  1931. 


of  Purchasers.] — Sites  of  a  row  of 
houses  in  a  town  were  conveyed  by  the  same 
vendors  to  various  persons,  all  about  the  same 
time,  and  the  conveyances  were  substantially  in 
the  same  form.  In  each  case  a  rent  charge  was 
reserved,  and  the  purchasers  covenanted  that 
they  would  bnild  the  houses  according  to  a  plan, 
and  that  the  outside  of  the  houses  should  not 
after  it  was  finished  ever  be  altered.  The 
assignees  of  a  purchaser  were  making  an  addi- 
tion to  the  front  of  one  house  and  the  assignee) 
of  the  purchaser  of  an  adjoining  house  sought  to 
restrain  the  alteration  : — Held,  that  it  was  a 
question  of  fact  in  each  case  whether  the 
restrictions  were  merely  matters  of  agreement 
between  the  vendor  and  the  several  purchasers 
for  the  protection  of  the  vendor,  or  were  in- 

;  tended  to  be  for  the  common  advantage  of  the 
several  purchasers,  and  that  in  this  case  it  we 

!  not  shown  that  they  were  intended  to  be  other- 
wise than  for  the  benefit  of  the  vendor,  and  the 
plaintiffs  could  not  enforce  them.  Wetter*  t. 
MacDermott  (2  L.  R.,  Ch.  72)  discussed.  Skrp- 
pard  v.  Qilmore,  57  L.  J.,  Ch.  6  ;  57  L.  T.  614— 
Stirling,  J. 

An  estate  was  sold  in  plots  for  building 
purposes,  according  to  a  scheme.  The  con- 
veyances contained  restrictive  covenants  as  to 
the  buildings  to  be  erected,  entered  into  by  the 
several  purchasers  with  the  vendors,  their  heire 
and  assigns  : — Held,  that  the  successor  in  title 
of  the  purchaser  of  one  of  such  plots  was  entitled 
to  enforce  such  restrictive  covenants  against  the 
successor  in  title  of  an  earlier  purchaser  of  an 
adjoining  plot.  Brown  v.  Inskip,  1  C.  &  E.  231 
Mathcw,  J. 

Personal  to  Vendor— Hot  binding  en  Assign*-] 
— G.,  a  lessee  of  a  house,  contracted  with  the 
trustees  of  his  lessor's  will  to  purchase  the  re- 
version of  his  leasehold.  Prior  to  the  contract, 
the  trustees  had  sold  the  adjoining  house,  known 
as  "  Verulam  House,"  to  W.,  and  had  covenanted 
with  W.  that  they,  the  vendors,  "would  not, 
either  alone  or  jointly  with  any  other  person  or 
persons  take  proceedings  to  prevent  the  said 
4  Verulam  House/  or  any  other  house  or  erec- 
tions that  might  thereafter  be  constructed  on 
the  said  premises,  being  used  or  occupied  by 
convalescent  fever  or  other  patients."  After  the 
contract,  G.  was  informed  by  W.'s  soliciton  of 
the  existence  of  this  covenant.  In  an  action  by 
G.  to  rescind  his  contract^  on  the  ground  that 
this  covenant  would  be  binding  on  him  as  pur- 
chaser with  notice :— Held,  that  the  covenant  was 
a  mere  personal  covenant  binding  the  vendois 
only  ana  did  not  in  any  way  bind  G.  GrtverT. 
Loomest  55  L.  J.,Ch.  52;  63  L.  T.698;  34  W.B. 
94— V.-C.  B. 


r 


1963 


VENDOR   AND    PURCHASER. 


1954 


Breath— "  Home "  to  be  Built  of  not   lets 
Tilne  than  £400— Two  Homos  or  Ono.]— The 
defendants  were  the  assignees  of  a  piece  of  land 
which  adjoined  the  plaintiffs,  and  which  was 
subject  to  a  covenant  entered  into  with  the 
plaintiff  that  no  house  should  be  erected  upon 
the  land  of  less  value   than  4002.     The  de- 
fendants commenced  to  build   two  houses  or 
shops,  each  two  stories  high,  upon  the  land, 
bat  on  an  objection  of  the  local  board,  the  two 
houses  were  thrown  together  by  making  a  com- 
munication between  them  on  the  ground  floor. 
As  altered,  the  houses  had  two  separate  doors 
opening  to  the  road,  and  two  separate  shop 
windows  fronting  to  the  road.    They  had  sepa- 
rate staircases,  but  one  of  them  had  no  kitchen, 
and  in  the  yard  behind,  which  was  common  to 
the  two  houses,  there  was  only  one  water-closet 
and  ashpit.    It  was  admitted  that  each  of  the 
two  houses,  if  they  were  to  be  considered  as 
separate,  was  of  less  value  than  4002.,  but  that 
the  value  of  the  two  exceeded  that  sum  : — Held, 
that  the  building  substantially  formed  two  houses, 
and  not  one,  and  that  therefore  a  breach  of  the 
covenant  had  been  committed.    Snow  v.  White- 
heri,  51  L.  T.  263— Kay,  J. 

Enforcement   of— Delay— Alterations  in  the 
Property.] — The  plaintiff  and  defendant  were 
owners  in  lee  of  two  houses,  situate  in  one  block, 
forming  part  of  a  property  which  was  laid  out 
as  a  building  estate  in  1877,  and  sold  with  re- 
strictive covenants  as  to  the  user  of  the  houses 
is  shops.    The  defendant  had   pnrchased   his 
bouse  in  1879,  with  full  notice  of  the  existence 
of  the  restrictive  covenant  from  a  previous  par- 
chaser  whose  deed  of  conveyance  contained  the 
covenant ;  but  in  the  deed  of  conveyance  to  the 
defendant  no  mention  was  made  of  the  existence 
of  any  such  covenants.    The  defendant  imme- 
diately after  his  purchase  commenced  to  sell, 
and  had  ever  since  6old,  beer  in  his  house  under 
an  "off  "  licence.    The  plaintiff,  who  had  pur- 
chased his  house,  which  was  only  four  doors 
off  the   defendant's,  in   1878,  also    with    full 
notice  of  the  covenants,  was  aware  of  the  fact 
of  the  defendant's  so  trading,  and  he  had  for 
nine  months  or  a  year  bought  beer  himself  at 
the  defendant's   house.    In  March,   1882,  the 
plaintiff  brought  this  action,  claiming  an  injunc- 
tion to  restrain  the  defendant  from  using  his 
noose  as  a  beershop  in  breach  of  the  contract. 
The  character  of  the  property  had  completely 
changed  since  1877,  several  houses  situate  in  the 
block  in  which  the  plaintiff's  and  defendant's 
bouses  stood   having   been  for  a  considerable 
time,  and  still  being  used  as  shops  and  places 
of  business.     Pearson,  J.,  held  that  the  change 
in  the   character  of   the   property   precluded 
the  defendant   from    enforcing    bis   covenant 
within    the    principle  of    Bedford    (Duke)  v. 
Brituh  Museum  Trustees  (2  Myl.  &  K.  552), 
and  that  the  plaintiff  had  incurred  no  damages, 
and  dismissed  the  action  with  costs : — Held,  on 
appeal,  that  the  plaintiff  had  been  guilty  of 
«och  an  amount  of   acquiescence  as  made  it 
inequitable  in  him  to  enforce   the   covenant 
8ayers  v.   Colly  er,  28  Ch.   D.  103;  54  L.  J., 
Ch.  1 ;  51  L.  T.  723  ;  33  W.  B.  91 ;  49  J.  P.  244 
-C.A. 

Enforcing  by  Injunction— Delay —Acqui- 

ejeeneo.] — See  Northumberland  {Duke)  v.  Boto- 
aaft,  ante,  col.  987. 


VENUE. 

See  PRACTICE  (TRIAL). 


VESTED  INTEREST   AND 
VESTING. 

See  WILL. 


VESTRY. 

See  ECCLESIASTICAL  LAW. 


VICTORIA. 

See  COLONY. 


VICE-ADMIRALTY 
COURTS. 

See  SHIPPING. 


VOLUNTARY    DEED. 

See  FRAUD— SETTLEMENT. 


VOTE. 

See  ELECTION  LAW. 


WAGER. 

See  GAMING  AND  WAGERING. 


3  R 


1955 


WAIVER   AND   ACQUIESCENCE. 


1956 


WAGES. 


Of  Berrent*-] — See  Marteb  and  Servant. 

Of  Smous.] — See  SHIPPING,  IV. 

Proof  in  Bankruptcy.] — See   Bankruptcy, 
IX,  1. 

On  Winding-up  of  Companies.]  —  See  Com- 
pact, XL,  8,  b. 


WAIVER  AND  ACQUIES- 
CENCE. 

General  Principles.] — Delay  is  not  waiver,  in- 
action is  not  waiver,  though  it  may  be  evidence 
of  waiver.  Waiver  is  consent  to  dispense  with 
the  notice — Per  Bowen,  L.J.  Selwyn  v.  Garfit, 
infra. 

A  testator  mortgaged  leaseholds.  On  his 
death  his  executors  took  possession  of  his  estate, 
including  the  leaseholds,  and  received  the  rents, 
and  for  a  long  time  paid  the  interest  on  the 
mortgages,  and  applied:  the  surplus  of  the  rents 
for  the  benefit  of  the  beneficiaries.  The  mort- 
gaged property  proved  insufficient  to  pay  the 
mortgage  debt,  and  in  an  action  for  the  adminis- 
tration of  the  testator's  estate  the  executors 
claimed  to  be  credited  with  the  payments  made 
to  the  beneficiaries  on  the  ground  of  acquies- 
cence on  the  part  of  the  mortgagees : — Held, 
that  the  onus  of  proving  acquiescence  is  on  the 
person  alleging  it,  and  to  show  acquiescence  he 
must  show  a  standing  by  with  a  full  knowledge 
of  what  was  being  done,  and  an  acquiescence  in 
the  devastavit ;  and  that  as  this  had  not  been 
proved,  acquiescence  by  the  mortgagees  had  not 
been  established.  Marsden,  In  re,  Botoden  v. 
Layland,  Qibbs  v.  Layland,  26  Ch.  D.  784 ;  54 
L.  J.,  Ch.  640  ;  61  L.  T.  417  ;  33  W.R.  28— 
Kay,  J. 

The  manager  of  a  bank,  being  in  the  habit  of 
obtaining  advances  for  the  bank,  obtained  an 
Advance  for  himself  on  his  personal  credit. 
The  bank  having  gone  into  liquidation,  the 
accounts  were  debited  with  this  advance  as 
made  to  the  bank,  and  the  bank,  in  ignorance  of 
the  facts,  acquiesced  in  this  statement  of  ac- 
count : — Held,  that  acquiescence  and  ratification 
must  be  founded  on  a  full  knowledge  of  the 
facts,  and  must  be  in  relation  to  a  transaction 
which  may  be  valid  in  itself,  and  not  illegal, 
and  to  which  effect  may  be  given  as  against  the 
party  by  his  acquiescence  in  and  adoption  of 
the  transaction,  and  that  there  was  no  ratifica- 
tion by  the  bank.  Banque  Jacques-  Cartier  v. 
Banque  B*Epargne,  13  App.  Cas.  Ill ;  67  L.  J., 
P.  C.  42— P.  C. 

What  amounts  to  in  general  See  judgment 
of  Fry,  L.J.,  citing  WUlmott  v.  Barber  (16  Ch. 
D.  96),  in  Russell  v.  Watts,  25  Ch.  D.  559  ;  60 
L.  T.  673  ;  32  W.  R.  626— C.  A. 

Company  —  Memorandum  of  Association  — 
Special  Resolutions— Ratification.]— The  memo- 
randum of  association  of  a  company  incorporated 
under  the  Companies  Act.  1862  (25  &  26  Vict.  c. 


89),  stated  that  a  portion  of  the  shares  were  to 
have  a  right  of  receiving  a  dividend  by  pre- 
ference to  the  other  shares,  and  that  the  pre- 
ference shares  should  have  a  right  to  a  dividend 
of  7  per  cent,  per  annum  in  priority  over  the 
ordinary  shares,  and  to  one-fifth  of  the  remain- 
der of  the  net  revenue  after  a  deduction  of  a 
sum  sufficient  for  paying  7  per  cent  per  annum 
on  the  ordinary  shares;  and  also  that  those 
shares  should  have  a  right  to  the  rest  of  the 
dividend,  whatever  it  might  be,  up  to  7  percent, 
after  paying  7  per  cent  to  the  preference  share* 
and  to  four-fifths  of  the  remainder  of  the  net 
revenue,  after  deduction  of  a  sum  sufficient  to 
pay  the  dividends  on  the  preference  and  ordi- 
nary shares.    The  directors  applied  the  profits  of 
the  company  in  substantial  accordance  with  the 
provisions  in  the  articles    of   association  till 
November,  1872,   when   the   company  passed 
special  resolutions  which  altered  the  priorities 
and  payments  of  the  net  revenue  as  between  the 
preference  and  ordinary  shareholders,  and  which 
provided  for  the  redemption  of  shares  out  of  the 
surplus  profits,  and  they  were  acted  upon  with- 
out any  objection  being  raised  to  them  by  any 
of  the  members  of  the  company  till  July,  1883, 
when  the  company  passed  a  special  resolution 
by  which   the    original    appropriation  of  the 
revenue  as  provided  by  the  memorandum  of 
association  was  restored  : — Held,  that  even  if 
the  resolutions  of  1872  would  be  valid  if  ratified 
by  every  member  of  the  company,  there  was  no 
evidence  on  which  the  court,  acting  as  a  jury, 
ought  to  infer  that  every  member  of  the  com- 
pany had  ratified  such   resolutions  with  foil 
knowledge  of  what  had  been  done.    Askbury  t. 
Watson,  30  Ch.  D.  376  ;  64  L.  J.,  Ch.  985 ;  M 
L.  T.  27  ;  33  W.  R.  882— C.  A. 

Waiver  of    Misrepresentations  in  Pro- 


spectus.]— See  Hale,  Ex  parte,  ante,  coL  349. 

Allowing   Varna   to  remain  on  Share 

Register.] — See  Yeoland  Consols,  In  re.  ante, 
col.  454. 

In  Registration  of  Company.]— See  Pep 

pleton,  Ex  parte,  ante,  col.  853. 

Forfeiture  by  Crown,]— See  Middleton  [Lsri) 
v.  Power,  ante,  coL  596. 

By  Legatee— Payments  wrongly  made.]— &* 
Hulkes,  In  re,  ante,  coL  792. 

Injunction  —  Effect  of  Acquiescence.  ]  — A* 

ante,  cols.  986,  987. 

Mortgage  —  Waiver,  by  whom.1—  After  a 
mortgagor  has  assigned  his  interest  in  the  property 
mortgaged  he  cannot  waive  a  notice  as  against 
the  other  persons  interested.  Selwyn  v.  Garfi, 
38  Ch.  D.  284  ;  67  L.  J.f  Ch.  609  ;  59  L.  T.  233 ; 
36  W.  R.  513— Per  Cotton,  LJ. 

By  Mortgagor  of  Provision  in  Mortgagt 

for  his  Benefit]—  See  Selwyn  v.  GarJU,  ante, 
coL  1258. 

Delay  in  following  Assets— Claim  against 

Residuary  Legatees.] — The  right  of  mortgagee* 
of  real  estate  whose  security  proves  insoificient, 
to  come  against  the  residuary  legatees  of  the 
mortgagor,  amongst  whom  his  personal  estate 


1967 


WAIVER   AND    ACQUIESCENCE. 


1958 


has  been  distributed,  is  a  purely  equitable  right, 
and  the  court  will  not  enforce  it  if  there  are 
drcumstances  which  would  make  it  inequitable 
to  do  so.     Blake  v.  Qale,  32  Ch.  D.  571  ;  56  L. 
J.,  Ch.  559  ;  55  L.  T.  234  ;   34  W.  R.  655— C.  A. 
A  testator  devised  his  freehold  farm  to  two  of 
his  sons  upon  trusts  for  his  children  and  issue, 
and  directed  that  his  unmarried  daughters  should 
be  at  liberty  to  carry  on  his  farming  business 
upon  it,  paying  a  rent  of  600/.    He   gave  his 
residuary  personal  estate,  in  the  events  which 
happened,  equally  among  his  six  children,  the 
above  two  sons  (who  were  executors  as  well  as 
trustees)  and  his  four  daughters.      The  testator 
had  made  a  first  mortgage  for  12,000/.,  and  a 
second  mortgage  for  2,400/.,  and  his  personal 
estate  was  under  11,000/.      Shortly  after  the 
death  of  the  testator  in  1859,  the  solicitors  of 
the  mortgagees  made  inquiry  as  to  his  affairs, 
and  the  solicitor  of  the  trustees  informed  them 
of  the  state  of  the  assets,  and  stated  that  the 
two  unmarried  daughters  would  probably  carry 
on  the  farm  for  a  time,  and  that  their  shares  of 
the  personal  estate  would  no  doubt  afford  them 
sufficient  means  to  do  so.    The  solicitors  of  the 
mortgagees  wrote  back  to  say  that  they  should 
be  glad  to  hear  that  the  daughters  were  able  to 
continue  at    the    farm.      The  two   daughters 
carried  on  the  farm  till  1863,  when  one  of  them 
married,  and  the  farm  was  then  let  by  the 
trustees  to  her  husband.     The  interest  was  duly 
paid  till  1880,  when,  owing  to  agricultural  de- 
pression, the  security  proved  insufficient.     The 
mortgagee  for  2,400/.  in    1882  commenced  an 
action  to  enforce  his  security,  and  to  prove  for 
the  deficiency  against   the  mortgaged   estate, 
seeking  to  charge  the  executors  with  a  devastavit 
in  distributing  the  personalty  without  providing 
for  his  mortgage  debt.      The  court  held  the 
executors  not  guilty  of  devastavit,  they  were 
charged  with  their  own  shares  of  the  residuary 
personalty  as  assets  in  hand,  and  the  balance 
found  due  from  them  was  applied  in  payment  of 
the  mortgage  debt,  without  prejudice  to  any 
proceeding  to  make  the  other  residuary  legatees 
refund.    The  plaintiff  then  brought  this  action 
against  the  four  daughters  to  recover  the  shares 
of  personalty  which  they  had  received : — Held, 
that  the  plaintiff  could  not  recover,  for  that  the 
mortgagees  having  assented  to  the  distribution 
of  the  personal    estate   among   the   residuary 
legatees,  could  not,  after  this  lapse  of  time,  claim 
it  back  from  them.    lb. 

Parent  and  Child  —  Entailed  Estate— Ex- 
elusion  of  Heir.]— See  Kintore  (Counteti)  v. 
Kintvre  (Earl),  ante,  coL  1604. 

Patent— Effect  of— -Action  for  Infringement] 
— See  Proctor  v.  Reams,  ante,  col.  1344. 

Surety  —  Action  against— Acquiescence  in 
Irregularities.]—  See  Durham  (Mayor)  v. 
FowUr,  ante,  coL  1532. 

Statutory  Bights  by  Person  Benefited.] — 
Edward  III.,  with  the  consent  of  parliament, 
granted  by  charter  to  the  citizens  of  London  that 
bo  market  within  seven  miles  round  about  the 
city  should  be  granted  by  the  king  or  his  heirs  to 
any  one.  In  1682  (after  an  inquiry  under  a  writ 
of  ad  quod  damnum),  by  charter,  Charles  II. 
granted  to  the  predecessors  in  title  of  the  plaintiffs 


the  right  to  hold  a  market  in  or  about  Spital 
Square  on  Thursdays  and  Saturdays.  In  1683, 
in  a  proceeding  in  quo  warranto,  Charles  II. 
obtained  a  judgment  cancelling  the  rights  and 
privileges  of  the  City  of  London.  In  1688, 
James  II.  granted  to  the  then  owner  of  the  Spital 
Square  market  the  right  of  holding  the  market 
on  Mondays,  Wednesdays  and  Saturdays,  in  lieu 
of  Thursdays  and  Saturdays.  By  2  Will.  &  Mary, 
sess.  1,  c.  8,  s.  4,  all  grants  made  in  derogation 
of  the  rights  of  the  city  since  the  judgment  in 
quo  warranto  were  declared  null  and  void.  This 
act  abrogated  the  grant  of  James  II. : — Held, 
that  the  charter  of  Edward  III.  had  the  validity 
of  a  private  act  of  Parliament ;  that  its  inten- 
tion was  that  no  market  should  be  granted  for 
seven  miles  round  the  city  in  derogation  of  the 
city's  privileges ;  that  there  being  evidence  of 
long-continued  user  of  the  market  at  the  least 
since  1723,  the  city  must  be  taken  to  have  waived 
their  rights  under  the  charter  of  Edward  IIL 
and  to  have  assented  to  the  charter  of  Charles  II. 
Great  Eastern  Railway  v.  Goldsmid,  9  App.  Cas. 
927  ;  64  L.  J.,  Ch.  162  ;  62  L.  T.  270 ;  33  W.  B. 
81 ;  49  J.  P.  260— H.  L.  (E.). 

Statutory  Contracts  —  Bights  under.]  —  See 
Price  v.  Bala  and  Festiniog  Railway  t  ante,  coL 
1542. 

Trustees— Transfer  of  Securities  to  Executors 
of  Cestui  que  trust.] — The  trustees  of  a  settle- 
ment advanced  a  sum  of  6,8872.,  part  of  the 
trust  estate,  upon  separate  sub-mortgages  of 
leasehold  houses.  This  advance  was  made  upon 
a  valuation  and  report  of  2nd  May,  1881,  which 
purported  upon  the  face  of  it  to  have  been  made 
at  the  request  of  the  borrower,  and  which 
founded  the  supposed  value  of  the  houses  upon 
a  statement  of  rent  which  was  merely  prospec- 
tive, all  the  houses  being  unlet  at  the  time,  and 
only  just  finished,  nor  were  any  deductions  made 
in  the  valuation  for  insurance  or  repairs.  On 
18th  December,  1883,  the  sub-mortgages  were 
transferred  by  the  trustees  to  the  executors  of 
the  deceased  cestui  que  trust  under  the  settle- 
ment. The  houses  were  then  found  to  have  so 
deteriorated  in  value  that  their  selling  value  was 
considerably  less  than  the  amount  advanced 
upon  them.  On  the  22nd  May,  1884,  the 
executors  commenced  an  action  against  the 
trustees.  The  evidence  showed  that  the  execu- 
tors, when  accepting  the  transfers,  had  no 
information  of  the  circumstances  under  which 
the  in  vestment  had  originally  been  made : — Held, 
that  the  executors,  by  accepting  the  transfers 
under  the  circumstances  which  existed,  must  not 
be  taken  to  have  acquiesced  in  or  adopted  the 
securities.  Smethurst  v.  Hatting*,  80  Ch.  D. 
490  ;  55  L.  J.,  Ch.  173  ;  62  L.  T.  667  ;  33  W.  B. 
496— V.-C.  B. 

—  Acquiescence  in  Possession  of  Fund.]— See 
Scotney  v.  Lom-er,  ante,  col.  1888. 

Yendor*s  Lien.]— Trustees  of  a  charity  con- 
veyed land  in  Yorkshire  to  B.  and  W.,  part  of 
the  purchase-money  remaining  unpaid,  and  al- 
lowed B.  and  W.  to  register  the  conveyance, 
knowing  that  they  wanted  to  do  so  in  order  to 
re-sell  the  land  in  lots  -.—Held,  that  the  trustees 
had,  by  their  conduct,  precluded  themselves  from 
asserting  their  lien  for  unpaid  purchase-money 

3  B  2 


1959 


WAR-- WATERr-  Water  Company. 


1960 


Against  bona  fide  sub-purchasers  without  actual 
notice.  Kettlewell  v.  Watson,  26  Ch.  D.  501  ;  53 
L.  J.,  Ch.  717 ;  51  L.  T.  135 ;  32  W.  B.  865— 
C.A. 

Voluntary  Qitt.]—Alloard  v.  Skinner,  ante, 
col.  1922. 


WAB. 

foreign  Enlistment  Ant— Fitting  out  of  Ex- 
pedition.]—The  offence  of  fitting  out  and 
preparing  an  expedition  within  the  Queen's 
dominions  against  a  friendly  state,  under  s.  11 
of  the  Foreign  Enlistment  Act,  1870,  is  suffi- 
ciently constituted  by  the  purchase  of  guns  and 
ammunition  in  this  country,  and  their  shipment 
for  the  purpose  of  being  put  on  board  a  snip  in 
a  foreign  port,  with  a  knowledge  of  the  pur- 
chaser and  shipper  that  they  are  to  be  used  in  a 
hostile  demonstration  against  such  state,  though 
the  shipper  takes  no  part  in  any  overt  act  of 
war,  and  the  ship  is  not  fully  equipped  for  the 
expedition  within  any  port  belonging  to  the 
Queen's  dominions.  Reg. v.  Sandoval,  56  L.  T.  526 ; 
35  W.  B.  500  j  51  J.  P.  709  ;  16  Cox,  C.  C.  206 
— D. 


WARD  OP  COURT. 

See  INFANT. 


WARRANTY. 

On  Sale  of  &oodn.]—8ee  Sale. 

Of  Troth  of   Answers— Life    Policy.]— &?« 
Thomson  v.  Weems,  ante,  col.  995. 

In  Policies  of  Marine  Insurance.]—^  In- 
8TJBAXCS,  III.  5. 

In  Bills  of  Lading.]— &w  SHlrtrao,  VI.  3. 


WASTE. 


Liability  of  Tenant  fox  Lift.]— See  Tbnakt,  I. 

CoTenant  to  Bepair  in  Leases.]— See  Land- 
lord and  Tenant. 


WATER. 

I.  Water  Company. 

1.  General  Powers  and  Duties,  1960. 

2.  Supply  of  Water. 

a.  Generally,  1963. 

b.  Cutting  off  Water,  1964. 


o.  Bates. 

L  Amount  how  Calculated, 

1965. 
ii.  Persons  Liable,  1967. 
iii.  Recovery  of,  1968. 

3.  Income  Tax.— See  Revenue. 

4.  Rating  to  Poor  Rate.— See  Poos 

Law. 

II.  Canal  Company,  1969. 

III.  BlVEBS  AND  STBEAKS,  1970. 

IV.  Injuries  bt  Wateb,  1972. 


L  WATEB  GOKPAHT. 

1.  GENERAL  POWERS  AND  DUTIB8. 

Compensation— Interests  injuriously  affected 
— Apparent  ambiguity.  ] — The  appellant  granted 
to  D.  certain  mills  on  a  stream  forming  the 
outlet  to  two  lochs  nearly  surrounded  by  bb 
property,  with  his  "  whole  rights  of  water  ssd 
water-power  connected  with  the  said  mills;" 
'•reserving"  all  his  "rights  in  the  lochs " sad 
stream  "  except  the  rights  therein  connected 
with  the  mills."  The  storage  capacity  of  the 
lochs  had  been  increased  by  embankments  made 
within  the  appellant's  ground.  The  respondents, 
who  were  waterworks  commissioners  under  a 
special  act,  acquired  by  agreement  the  rights  of 
D.  in  the  water,  and  under  their  compulsory 
powers  took  from  the  appellant  a  small  piece  of 
ground  and  a  way-leave  for  a  pipe,  which  they 
inserted  in  the  stream  and  diverted  the  waters  of 
the  lochs  to  supply  a  town.  S.  9  of  the  special 
act  provided  that  a  certain  quantity  of  water 
sent  down  the  stream  daily  should  be  held  to  be 
a  sufficient  compensation  to  the  mill-owners  and 
others.  S.  10  reserved,  inter  alia,  any  rights  the 
appellant  had  in  Loch  Humphrey.  In  a  claim  tor 
compensation  the  arbitrator  found  the  appellant 
entitled  (1)  to  502.  for  the  land  and  wayleave ; 
and  (2)  "  In  the  event  of  it  being  determined 
that  the  appellant  had  retained  any  right  or 
interest  in  the  waters  of  the  lochs  and  the 
streams  or  any  of  them,  and  that  he  is  now 
entitled  to  compensation  in  respect  of  such  right 
or  interest,  I  find  3,C002.  to  be  the  amount  to  be 
paid"  in  respect  of  the  right  or  interest  to  be 
acquired  from  the  appellant  "  in  the  aforesaid 
waters  and  the  embankments"  at  the  lochs, 
including  in  the  said  sum  of  3,0002.  the  sen  of 
1,6602.  as  the  estimated  price  or  value  of  the 
embankments : — Held,  that  the  award  was  tafia, 
inasmuch  as  the  arbitrator  had  valued  only  one 
thing,  the  enhanced  value  of  the  water  in  the 
lochs,  and  had  not  valued,  as  a  separate  subject, 
the  embankments,  but  had  properly  included  in 
the  3,0002.,  as  a  factor  of  value,  the  incidental 
right  obtained  by  the  respondents  to  have  the 
embankments  left  standing.  Blantyre  (Lord) 
v.  Babtie,  13  App.  Cas.  631— H.  L.  (8c.). 


Minerals   not   Workable-     .. 

Injury.]— By  the  Waterworks  Glauses  Act,  1847, 
s.  25,  the  undertakers  of  waterworks  shall  from 
time  to  time  pay  for  any  mines  or  minerals  not 
purchased  by  the  undertakers  which  cannot  be 
obtained  by  reason  of  making  and  maintaining 
the  works,  or  by  reason  of  apprehended  injury 


1961 


WATER—  Water  Company. 


1962 


from  the  working  thereof.    The  claimants  were 
lessees  of  a  coal  mine,  comprising  four  seams  of 
coal  running  beneath  land  which  the  corporation 
had,   under   a   special   act   incorporating   the 
Waterworks  Clauses  Act,  1847,  acquired  in  order 
to  make  a  reservoir  there.    The  claimants  were 
working  three  of  the  seams,  and  preparing  to 
sink  a  shaft  to   work  the  fourth,  called  the 
Oannel  seam,  and  they  gave   notice  of  their 
intention  to  work  the  seams  under  and  within 
the  prescribed  limits  of  the  land  of  the  corpora- 
tion, who  thereupon  gave  notice  to  treat  for  the 
purchase  of  a  part  of  one  of  the  lower  seams. 
An  arbitrator  found,  in  a  special  case  stated  for 
the  opinion  of  the  court,  that  the  workings  of 
the  claimants  had  not  yet  approached  the  reser- 
voir so  as  to  cause  any  present  risk  to  the  mines 
from  it,  bat  that,  assuming  the  corporation  to 
purchase  and  retain  in  situ  the  part  of  the  seam 
for  which  they  had  given  notice  and  no  other 
coal,  the  claimants,  by  reason  of  the  waterworks 
and  of  apprehension  of  injury  therefrom  to  the 
Cannel  seam,  could  not  work  or  get  more  than 
50  per  cent,  of  the  Cannel  coal  under  the  reser- 
voir or  within  twenty  yards  of  its  boundary,  and 
that  a  prudent  lessee  working  without  right  to 
compensation  would  be  compelled  by  reason  of 
such  apprehension  of  injury  to  abstain  from 
working  or  getting  more  than  50  per  cent,  of 
the  Cannel  coal : — Held  (Lord  Esher,  M.R.,  dis- 
senting), that  on  these  findings  the  arbitrator 
was  not  justified  in  awarding  compensation  under 
the  act  for  the  50  per  cent  of  the  Cannel  coal 
which  could  not  be  obtained.    Holliday  and 
Wakefield  (Mayor),  In  re,  20  Q.  B.  D.  699  ;  57 
L.  J„  Q.  B.  620 ;  59  L.  T.  248  ;  52  J.  P.  644— 
C.  A. 

Compulsory  Purchase   of  Surface  —  Clay — 
'•Other  Minerals."]— The  18th  section  of  the 
Waterworks  Clauses  Act,  1847  (10  &  11  Vict.  c. 
17),  provides  that  "  the  undertakers  shall  not  be 
entitled  to  any  mines  of  coal,  ironstone,  slate,  or 
other  minerals  under  any  land  purchased  by 
them."    The  appellants,  by  virtue  of  the  act 
and  a  conveyance  containing  a  reservation  of  the 
*>  whole  coal  and  other  minerals  in  the  land  in 
terms  of  the  Waterworks  Clauses  Act,  1847," 
purchased  from  the  respondent  a  parcel  of  land 
for  the  purpose  of  erecting  waterworks.    Under 
the  land  was  a  seam  of  valuable  brick  clay. 
The  respondent  worked  this  clay  in  the  adjoin- 
ing land,  and  having  reached  the  appellants1 
boundary,  claimed  the  right  to  work  out  the  clay 
under  the  land  purchased  by  the  appellants : — 
Held  (Lord  Herschell,  dissenting),  that  common 
clay,  forming  the  surface  or  subsoil  of  land,  was 
not  included  in  the  reservation  in  the  act,  and 
that  the  appellants  were  entitled  to  an  interdict 
restraining  the  respondent  from  working  the 
clay  under  the  land  purchased  by  them.  Glasgow 
(Lard  Protost)  v.  Fairie,  13  App.  Cas.  657 ;  58 
Xu  J-,  P.  C.  33 ;  60  L.  T.  274 ;  37  W.  R.  627— 
H.  I*.  (8c). 

Bight  to  subjacent  support  of  Pipes— Mines— 
Pup—rit  of  Plans.  1— The  deposit  of  plans  of  their 
underground  works,  pursuant  to  ss.  19  and  20  of 
the  Waterworks  Clauses  Act,  1847,  is  a  condition 
precedent  to  the  right  of  a  company  incorporated 
under  that  act  to  recover  for  injuries  caused  to 
their  pipes  by  the  ordinary  and  usual  workings 
of  a  subjacent  mine.  South  Staffordshire  Water- 


works Company  v.  Mason,  56  L.  J.,  Q.  B.  255 ; 
57  L.  T.  116— D. 

Duty  to  fix  proper  Fire-plugs  in  Mains.] — 
The  38th  section  of  the  Waterworks  Clauses  Act, 
1847  (10  Vict  c.  17),  imposes  no  duty  on  the 
undertakers  to  provide  a  pipe  of  sufficient  capa- 
city to  carry  a  proper  fire-plug  in  a  place  where 
their  existing  pipe  is  sufficient  for  that  purpose, 
although,  in  the  opinion  of  the  justices  em- 
powered by  the  section  to  settle  the  proper 
position  of  the  fire-plugs  in  the  district,  it  is,  as 
a  fact,  essential  that  a  fire-plug  should  be  placed 
there.  Beg.  v.  Wells  Water  Company,  55  L.  T. 
188;  61J.  P.135— D. 

Fire-plug  placed  in  Street— Duty  to  keep  in 
Bepair.  ] — A  fire-plug  had  been  lawfully  fixed  in 
a  highway  by  the  defendants.  Originally  the 
top  of  the  fire-plug  had  been  level  with  the 
pavement  of  the  highway,  but  in  consequence  of 
the  ordinary  wearing  away  of  the  highway  the 
fire-plug  projected  half  an  inch  above  the  level 
of  the  pavement.  The  fire-plug  itself  was  in 
perfect  repair.  The  plaintiff,  whilst  passing 
along  the  highway,  fell  over  the  fire-plug  and 
was  hurt : — Held,  that,  as  the  fire-plug  was  in 
good  repair,  and  had  been  lawfully  fixed  in  the 
highway,  no  action  by  the  plaintiff  would  lie 
against  the  defendants.  Kent  v.  Worthing  Local 
Board  (10  Q.  B.  D.  118)  commented  on.  Moore 
v.  Lambeth  Waterworks  Company,  17  Q.  B.  D. 
462  ;  55  L.  J.,  Q.  B.304  ;  55  L.T.S09  ;  34  W.  R. 
559  ;  50  J.  P.  756-C.  A. 

Power  to  do  Works  in  Street— Stop-valves  in 

Footway.]— The  28th  section  of  the  Waterworks 
Clauses  Act,  1847,  provides  that  the  undertakers 
may  open  and  break  up  the  soil  and  pavement 
of  streets  within  their  district  and  lay  down  and 
place  pipes,  conduits,  service  pipes,  and  other 
works  and  engines,  and  do  all  other  acts  which 
they  shall  from  time  to  time  deem  necessary  for 
supplying  water  to  the  inhabitants  of  the  dis- 
trict. The  ,32nd  section  of  the  same  act  provides 
that,  when  the  undertakers  open  or  break  up  the 
road  or  pavement  of  any  street  they  shall,  with 
all  convenient  speed,  complete  the  work  for 
which  the  same  shall  be  broken  up  and  fill  in  the 
ground  and  reinstate  and  make  good  the  read  or 
pavement  so  opened  or  broken  up : — Held,  that 
the  power  given  by  the  28th  section  includes 
any  works  which  the  undertakers  may  deem 
necessary  for  the  purpose  of  regulating  the 
supply  of  water,  and  is  not  confined  to  the  laying 
down  of  apparatus  underground,  but  enables  the 
undertakers  to  place  such  works  on  the  surface 
of  the  street  as  may  not  be  inconsistent  with  the 
substantial  reinstatement  of  the  road  or  pave- 
ment in  its  previous  condition  or  create  a 
nuisance  ;  and  therefore  that  a  water  company 
was  authorised  by  the  section  to  place  in  the 
pavement  of  a  street  covers  or  guard-boxes  to 
protect  stop-valves  placed  for  the  purpose  of 
regulating  tne  supply  of  water  in  the  communi- 
cation pipes,  by  which  water  was  supplied  to 
premises  in  the  street,  such  covers  or  guard- 
boxes  not  creating  a  nuisance  or  being  inconsis- 
tent with  the  substantial  reinstatement  of  the 
pavement.  Bast  London  Waterworks  Company 
v.  St.  Matthew,  Bethnal  Green,  17  Q.  B.  D.  476  ; 
56  L.  J.,  Q.  B.  571  ;  54  L.  T.  919  ;  36  W.  R.  87 ; 
50  J.  P.  820— C.  A.  See  also  Preston  (Mayor) 
v.  Fullwood  Local  Board,  post,  coL  1978. 


1968 


WATER—  Water  Company. 


1964 


2.    SUPPLY  OP  WATEB. 
a.  Generally. 

Duty  to  Supply  Pore  Water— Water  Pure  in 
Maim,  but  Contaminated  in  Consumer's  Pipes.] 
—  Undertaken  for  the  supply  of  water  to 
Huddersfield  were  bound  on  certain  conditions 
to  cause  pipes  to  be  laid  down  and  water  to  be 
brought  to  every  part  of  the  town,  and  by  s.  36 
of  the  Waterworks  Glauses  Act,  1847  (10  &  11 
Vict.  c.  17),  "  to  provide  and  keep  in  the  pipes 
to  be  laid  down  by  them  a  supply  of  pure  and 
wholesome  water,  sufficient  for  the  domestic  use 
of  all  the  inhabitants  of  the  town  who  should  be 
entitled  to  demand  a  supply  and  should  be  willing 
to  pay  water-rate  for  the  same."  By  their 
special  act  the  undertakers  were  empowered 
to  make  bye-laws  with  regard  to  the  consumers' 
pipes.  The  bye-laws  made  under  this  power 
prescribed  lead  as  the  necessary  material  for 
every  consumer's  pipe,  "  not  being  of  cast  iron." 
The  undertakers  in  accordance  with  their  usual 
practice  at  the  consumer's  request  and  cost  laid 
down  communication  and  service  pipes  of  lead 
between  their  mains  and  the  plaintiff's  house. 
The  effect  of  the  bye-laws  ana  of  a  19  of  the 
Waterworks  Clauses  Act,  1863  (26  &  27  Vict.  c. 
93),  was  that  though  the  lead  pipes  might  be  the 
property  of  the  plaintiff  they  were  entirely  under 
the  control  of  the  undertakers,  and  could  not 
without  their  consent  be  interfered  with  by  the 
plaintiff.  Water  was  supplied  by  them  to  the 
plaintiff  which  was  pure  and  wholesome  in  the 
mains  but  was  of  such  quality  that  in  its  passage 
from  the  mains  to  the  plaintiffs  house  it  became 
contaminated  by  the  lead  and  poisoned  the 
plaintiff.  The  plaintiff  having  brought  an  action 
against  the  undertakers  for  damages  for  the 
injury  to  his  health  alleged  a  breach  of  the 
statutory  obligation  : — Held,  that  the  obligation 
imposed  by  s.  35  was  to  supply  water  which  was 
pure  and  wholesome  in  the  mains  (and  Lord 
Belborne  and  Lord  Watson  dissenting),  that 
having  complied  with  that  obligation  the  under- 
takers were  not  (negligence  being  out  of  the 
case)  liable  to  the  plaintiff  in  this  action.  But 
held,  by  Lord  Selborne  and  Lord  Watson,  that 
the  undertakers  were  liable,  on  the  ground  that 
the  water  contained  some  special  and  peculiar 
solvent  of  lead  which  made  it  poisonous  after 
passing  through  the  leaden  pipes,  although  it 
would  have  been  harmless  if  it  could  have  been 
drunk  direct  from  the  mains.  Milne*  v.  Hud- 
dersfieU  (Mayor),  11  App.  Cas.  611  ;  56  L.  J., 
Q.  B.  1 ;  65  L.  T.  617 ;  34  W.  R.  761 ;  50  J.  P. 
676— H.  L.  (B.). 


Duty  of  Owner  to  supply  Water.]— Sect.  62  of 
the  Public  Health  Act,  1875,  enables  rural  sani- 
tary authorities  to  cause  houses  within  their 
districts  to  be  provided  with  a  proper  supply  of 
water,  where  there  is  an  available  supply  within 
a  reasonable  distance,  and  is  not  repealed  in  anv 
way  by  s.  6  of  the  Public  Health  (Water)  Act 
of  1878.  The  latter  section  enables  such  autho- 
rities to  cause  houses  within  their  districts  to  be 
provided  with  a  supply  of  water  where  there  is 
not  an  available  supply  within  a  reasonable  dis- 
tance, and  does  not  apply  to  cases  which  come 
within  the  former  section.  Colne  Valley  Water 
Company  v.  Treharne,  50  L.  T.  617  ;  48  J.  P.  279 
— D. 


By  Meter— "Dwelling-house."]  — A  person 
requiring  a  supply  of  water  in  a  home  for 
domestic  purposes  and  also  for  purposes  for 
which  no  rate  is  fixed  by  the  New  River  Com- 
pany's Act,  1852,  is  not  entitled,  under  a  41  of 
the  act,  to  require  the  company  to  supply  by 
meter  the  water  for  domestic  purposes  as  well 
as  the  water  for  other  purposes :— Semble,  that 
any  house  in  which  water  is  required  for  do- 
mestic purposes  is  a  "  dwelling-house "  within 
the  meaning  of  s.  35  of  the  act,  thoagh  no 
person  sleeps  or  takes  meals  there.  Cooke  r. 
New  River  Company,  38  Ch.  D.  56 ;  57  L.  J., 
Ch.  383  ;  58  L.  T.  830— C.  A.  Affirmed  W.  N. 
1889,  p.  167. 


Cost  of 


or  Hiring.] -The 
Sheffield  Waterworks  Company  was  authorised 
to  receive  payment  by  measure  and  not  by  a 
rate  for  water  supplied  to  fixed  baths  in  private 
houses.  There  is  no  express  provision  in  the 
principal  or  general  acts  as  to  how  the  water  far 
such  a  purpose  is  to  be  measured,  or  whether  the 
company  or  the  consumer  shall  bear  the  cost  of 
providing  a  meter  or  measuring  the  water ;  bat 
by  the  Waterworks  Clauses  Act,  1863,  a  14, 
where  the  company  supply  water  by  measure, 
they  may  let  to  a  consumer  a  meter  for  such 
remuneration  in  money  as  they  may  agree  upon : 
— Held,  that  a  consumer  taking  water  from  the 
company  for  a  fixed  bath  in  his  private  house 
was  bound  at  his  own  expense  to  measure  the 
water  so  used  by  some  automatic  and  self-regis- 
tering meter  or  other  instrument,  or  in  some 
other  equally  accurate  way,  and  to  record  the 
amount  from  time  to  time  taken.  SkefeU 
Waterworks  Company  v.  Bingham,  25  Ch.  D. 
443  ;  52  L.  J.,  Ch.  624  ;  48  L.  T.  604— Pearson,  J. 


b.  Cutting  off  Water. 

Hon-payment  of  Kate.]  —  P.'a  landlord  bad 
agreed  to  pay  water-rate,  and  had  duly  paid  it, 
when  P.  received  notice  to  quit.  P.  refused  to 
quit,  and  the  landlord  requested  the  0.  water- 
works company  to  cut  off  the  water,  which  they 
did  without  any  notice  to  P. : — Held,  that  the 
magistrate  was  wrong  in  holding  that  the  com- 
pany had  acted  in  contravention  of  the  statute 
50  &  51  Vict,  c  21,  s.  4.  Chelsea  Waterworks 
Company  v.  Paulet,  62  J.  P.  724— D. 

Action  by  Tenant  for.] — Where  a  dispute  has 
arisen  as  to  the  amount  of  the  water-rate  pay- 
able by  an  occupier  of  premises  to  a  water 
company  (whose  special  act  incorporated  the 
Waterworks  Clauses  Act,  1847),  the  determi- 
nation of  the  annual  value  of  the  premises 
supplied,  by  two  justices,  under  a  68  of  the  act 
of  1847,  is  a  condition  precedent  to  the  right  of 
the  occupier  to  sue  the  company  for  cutting  off 
the  water,  and  for  the  amount  alleged  to  have 
been  paid  in  excess.  Wliiting  v.  East  London 
Waterworks  Company,  1  C.  &  £.  331— A  I* 
Smith,  J. 

Injunction  to  Bettrain.] — Where  there  is  s 
dispute  as  to  the  annual  value  of  a  tenement  for 
the  purposes  of  water-rate,  and  the  waterworks 
company  threatens  to  discontinue  the  supply* 
the  court  has,  by  virtue  of  the  powers  conferred 
upon  it  by  the  Judicature  Act,  1873,  a  25,  sub-s. 
3,  jurisdiction  to  grant  an  injunction,  notwith- 
standing that  the  Waterworks  Clauses  Act,  1863, 


1965 


WATER—  Water  Company. 


1966 


provides  (s.  68)  for  the  determination  of  such 
disputes  by  two  justices,  and  imposes  (s.  43) 
upon  the  company  fixed  penalties  for  refusal  to 
supply.  Hayward  v.  East  London  Waterworks 
Company,  28  Ch.  D.  138  ;  64  L.  J.,  Ch.  523  ;  52 
L.  T.  175  ;  49  J.  P.  452— Chitty,  J. 

The  court,  however,  in  such  a  case,  will  decline 
to  grant  an  injunction,  except  pending  the  pro- 
ceedings before  the  justices  for  the  settlement 
of  the  dispute,  or  upon  an  undertaking  by  the 
plaintiff  to  commence  the  proceedings  within  a 
short  period.  The  discontinuation  of  a  water 
supply  by  a  London  waterworks  company  is  an 
injury  sufficiently  irreparable  to  support  an  in- 
junction,   lb. 


o.  Bates. 


:  * 


i.  Amount  how  Calculated. 

41  Annual  Value."]  -A  water  company  by  a 
special  act  of  1826  were  compellable  to  supply 
water  to  certain  dwelling-houses  in  the  metro- 
polis for  domestic  purposes  at  certain  rates  per 
cent,  per  annum,  payable  "according  to  the 
actual  amount  of  the  rent  where  the  same  can 
be  ascertained,  and  where  the  same  cannot  be 
ascertained  according  to  the  actual  amount  or 
annual  value  upon  which  the  assessment  to  the 
poor's-rate  is  computed  in  the  parish  or  district 
where  the  house  is  situated."  By  a  special  act 
of  1852  the  company  were  compellable  to  furnish 
the  water  •'  where  the  annual  value  of  the 
dwelling-house  or  other  place  supplied  shall  not 
exceed  200/.  at  a  rate  per  cent,  per  annum  on 
such  value  not  exceeding  41. ;  and  where  such 
annual  value  shall  exceed  2002.,  at  a  rate  per 
cent,  per  annum  on  such  value  not  exceeding 
32."  The  occupier  of  one  of  the  houses  was 
lessee  for  a  long  term  at  a  ground  rent,  and  paid 
no  rent  except  ihe  ground  rent: — Held,  that 
whether  the  later  act  repealed  the  provisions  of 
the  former  or  not,  the  case  must  be  dealt  with 
under  the  later  act ;  and  that  the  words  "  annual 
value"  in  the  later  act  meant  "net  annual 
value"  as  defined  in  the  Parochial  Assessments 
Act,  1836  (6  &  7  Will.  4,  c.  96),  s.  1  .—Held,  also, 
that  u  annual  value  "  had  the  same  meaning  in 
the  earlier  as  in  the  later  act.  Colvill  v.  Wood 
(2  C.  B.  210)  commented  on.  Dobbs  v.  Grand 
Junction  Waterworks  Company,  9  App.  Oas.  49  ; 
53  L.  J.,  Q.  B.  50 ;  49  L.  T.  541 ;  32  W.  R.  432  ; 
48  J.  P.  5— H.  L.  (E.). 

Annual  Back-rent.]— By  the  terms  of 

its  special  act  a  water  company  were  to  supply 
water  at  certain  rates  on  the  "  annual  rack-rent 
of  the  house  ....  if  the  same  be  let  at 
rack-rent,  and  on  the  annual  value  if  and  while 
the  same  is  not  let  at  rack-rent."  An  owner 
and  occupier  contended  that  his  house  not  being 
let  at  an  annual  rack-rent,  the  water-rates  pay- 
able by  him  ought  to  be  assessed  according  to  the 
annual  value  ;  and  that  the  annual  value  was  the 
net  annual  value  as  distinguished  from  the  gross 
value  or  gross  estimated  rental : — Held,  that  the 
words  in  the  section  "annual  rack-rent"  and 
11  annual  value  "  must  be  treated  as  equivalent ; 
that  the  legislature  never  intended  to  lay  down 
two  scales  of  charges,  one  for  tenants  of  houses 
and  the  other  for  owner  occupants  ;  and  that  an 
owner  occupying  his  own  house  must  pay  water- 
rates  upon  the  gross  estimated  rental  as  distin- 
guished from  the  net  annual  value.    Stevens  v. 


Barnet  Qas  and  Water  Company ,  57  L.  J.,  M.  C. 
82  ;  36  W.  R.  924— D. 

Garden  attached  to  Dwelling-house.]— Section 
68  of  the  Bristol  Waterworks  Act,  1862,  enacts  that 
the  company  shall  furnish  to  every  occupier  of 
a  private  dwelling-house  within  their  limits  a 
sufficient  supply  of  water  for  the  domestic  use 
of  such  occupier,  at  certain  annual  rents  or 
rates  according  to  the  "  annual  rack-rent  or  value 
of  the  premises  so  supplied  " — such  supply  (by 
8.  71)  not  to  include,  amongst  other  things,  a 
supply  of  water  "  for  watering  gardens  by  means 
of  a  tap,  tube,  pipe,  or  other  such  like  apparatus.*' 
And  s.  32  of  the  Bristol  Waterworks  Amendment 
Act,  1865,  enacts  that,  "if  any  dispute  shall 
arise  as  to  the  amount  of  the  annual  rent  or 
value  of  any  dwelling-house  or  premises  supplied 
with  water  by  the  company,  such  dispute  shall 
be  decided  by  two  justices ;  provided  that  the 
amount  of  the  annual  rack-rent  or  value  to  be 
fixed  by  such  justices  shall  not  be  less  than  the 
gross  sum  assessed  to  the  poor-rate,  or  less  than 
the  rent  actually  paid  for  such  dwelling-house  or 
premises."  A  dwelling-house  and  garden  in  the 
occupation  of  the  owner  were  assessed  to  the 
poor-rate  as  follows, — "  Gross  estimated  rental, 
2401.,"  "  Rateable  value,  204J."  It  was  proved 
that  the  value  of  the  house  without  the  garden 
would  be  10  per  cent,  less  ;  and  that  the  owner 
contracted  to  pay  and  did  pay  11.  Is.  annually 
for  the  watering  by  means  of  a  pipe  and  tap  in 
the  garden  which  surrounded  the  dwelling-house 
and  was  occupied  and  assessed  therewith : — 
Held,  upon  a  case  stated  by  the  justices,  that  the 
words  "gross  sum  assessed  to  the  poor-rate" 
meant  the  "  gross  estimated  rental,  and  not 
"  rateable  or  net  value ; "  and  that  the  water- 
rent  was  chargeable  upon  the  gross  estimated 
rental  of  "  the  premises,"  including  the  pleasure 
garden  occupied  with  the  house,  and  not  merely 
upon  the  dwelling-house  itself, — the  extra  charge 
for  the  garden  supply  being  for  using  a  pipe  and 
tap.  Bristol  Waterworks  Company  v.  Uren,  15 
Q.  B.  D.  637  ;  54  L.  J.,  M.  C.  97  ;  52  L.  T.  655  ; 
49  J.  P.  564— D. 

Premium  for  Lease — Public  House.] — By  the 
special  act  of  a  water  company  it  was  provided 
that  water  should  be  supplied  for  domestic  pur- 
poses by  the  company  at  a  rate  per  cent,  upon 
the  annual  value  of  the  dwelling-house  or  other 
place  supplied,  that  a  supply  of  water  for 
domestic  purposes  should  not  include  a  supply 
of  water  for,  among  other  things,  any  trade  or 
manufacture  or  business  requiring  an  extra 
supply  of  water,  and  that  the  company  might 
furnish  water  for  other  than  domestic  purposes 
on  such  terms  as  might  be  agreed  on  between 
the  company  and  the  consumer.  The  company 
supplied  water  for  domestic  purposes  to  a  house 
occupied  as  a  licensed  public-house.  The  com- 
pany contended  that  the  annual  value  of  the 
premises  as  a  licensed  public-house  should  be 
taken  as  the  basis  of  the  water-rate  payable  in 
respect  of  such  supply,  and  that  therefore  the 
fact  of  the  premises  being  licensed,  and  a 
premium  which  had  been  paid  for  the  lease  of  the 
premises  as  a  public-house  ought  to  be  taken  into 
consideration  in  fixing  the  value.  The  occupier 
contended  that  such  water-rate  should  be  based 
upon  the  value  of  the  premises  for  domestic 
purposes  only : — Held,  that  the  contention  of  the 
company  was  correct.     West  Middlesex  Water* 


1967 


WATER—  Water  Company. 


1968 


works  Company  v.  Coleman,  or  Coleman  r.  Weit 
Middlesex  Waterworks  Company,  14  Q.  B.  D. 
629  ;  54  L.  J.,  M.  C.  70  ;  62  L.  T.  578  ;  33  W.  B. 
649 ;  49  J.  P.  341— D. 

Minimum  Charge.] — No  dispute  determinable 
by  justices  of  the  peace  under  s.  68  of  the  Water- 
works Clauses  Act,  1847.  can  arise  as  to  the 
annual  value  of  premises  where  a  water  company 
are  making  the  minimum  charge  which  they  are 
entitled  to  make  under  their  special  act  Colne 
Valley  Water  Company  v.  Treharne,  60  L.  T. 
617 ;  48  J.  P.  279— D. 


ii.  Persons  Liable. 

Owner — Unoccupied  Houses  not  exceeding  the 
Value  of  Twenty  Pounds.]— The  respondents, 
relying  on  s.  58  of  their  private  act  (15  &  16 
Vict.  c.  clviii.),  which  extended  the  provisions 
of  s.  72  of  the  Waterworks  Glauses  Act,  1847,  to 
houses  not  exceeding  the  annual  value  of  202., 
claimed  water  rates  from  the  appellants  as 
owners  of  certain  houses  under  the  annual  value 
of  201.  each,  for  two  quarters,  during  the  whole 
of  which  time  such  houses  were  unoccupied  : — 
Held,  that  an  owner's  liability  for  rates  under 
s.  72  of  the  Waterworks  Glauses  Act,  1847, 
ceases  on  the  quarterly  day  of  payment  next 
after  the  house  has  become  unoccupied,  and  that 
as  s.  58  of  the  respondents'  private  act  merely 
extended  the  provisions  of  that  section  to  houses 
not  exceeding  the  annual  value  of  20Z.,  the 
respondents  were  not  entitled  to  recover.  British 
Empire  Mutual  Life  Assurance  Company  v. 
Southwarh  and  Vauxhall  Water  Company,  69 
L.  T.  321 ;  36  W.  R.  894  ;  62  J.  P.  768— D. 

Notice  to  obtain  proper  Supply — Non- 
compliance.]— A  local  authority  caused  a  supply 
of  water  to  be  brought  in  main  water-pipes  along 
the  street  in  which  a  house  was  situate,  and  gave 
notice  to  the  owner  of  the  house,  under  s.  62 
of  the  Public  Health  Act,  1875,  to  obtain  a 
proper  supply  and  do  all  such  works  as  might  be 
necessary  for  that  purpose.  That  notice  was  not 
complied  with,  and  the  local  authority  did  not 
exercise  the  power  given  to  them  by  that  section 
of  executing  the  works  necessary  to  connect  the 
house  with  the  main.  In  an  action  by  the 
water  company  for  water-rates :  —Held,  that 
the  defendant  was  liable,  and  that  it  was  not  a 
condition  precedent  to  such  liability  that  the 
works  necessary  to  bring  the  water  into  the 
house  should  have  been  executed.  Southend 
Waterworks  Company  v.  Howard,  13  Q.  B.  D. 
216 ;  58  L.  J.,  Q.  B.  354  ;  32  W.  B.  923  j  48  J.  P. 
469— D. 


Landlord  or  Tenant.]— In  a  lease  of  a  shop 
and  basement  and  of  three  rooms  on  the  third 
floor  of  the  same  house,  the  lessor  covenanted  to 
pay  "  all  rates  and  taxes  chargeable  in  respect 
of  the  demised  premises."  Water  was  separately 
supplied  by  a  water  company  to  the  shop  and 
basement,  and  paid  for  by  the  tenant  In  an 
action  to  recover  from  the  lessor  the  amount  so 
paid  : — Held,  that  such  a  charge  was  "  a  rate  " 
within  the  meaning  of  the  covenant.  Direct 
Spanish  Telegraph  Company  v.  Shepherd,  13 
Q.  B.  D.  202  ;  53  L.  J.,  Q.  B.  420 ;  51  L.  T.  124  ; 
32  W.  B.  717  ;  48  J.  P.  550— D. 


iii.  Recovery  of  . 


Dispute  as  to  Annual  Value— Juiadietiem  of 
Justices.] — Upon  the  hearing  before  justices  of  a 
summons  to  enforce  payment  of  a  water-rite 
made  under  a  local  act  incorporating  the  Water- 
works Glauses  Act,  1847,  the  justices  have  power, 
under  s.  68  of  that  act,  to  determine  a  dispute  at 
to  the  annual  value  of  the  premises  rated.  It  is 
not  necessary  to  their  jurisdiction  before  making 
an  order  for  payment  of  the  rate  upon  such 
summons  that  the  dispute  should  have  been  pre- 
viously determined  in  a  separate  proceeding 
before  justices.  New  River  Company  v.  Mather 
(10  L.  B.,C.  P.  442)  distinguished,  lea  v.  Aber- 
gavenny Improvement  Cmnmisnoners,  16  Q.  fi.  D. 
18  ;  65  L.  J.,  M.  C.  25  ;  53  L.  T.  728;  34  W.  R. 
105 ;  60  J.  P.  166— D.  See  Colne  Valley  Water 
Company  v.  Treharne,  supra. 


Bight  of  Distress—Power  under  Private 
Subsequent  Public  Act.] — A  private  act  passed 
in  46  Geo.  3,  gave  the  West  Middlesex  Water- 
works Company  power  to  levy  a  distress  on 
default  of  payment  by  consumers  of  water  of 
the  water-rates  mutually  agreed  upon  in  accord- 
ance with  46  Geo.  3,  c.  119,  s.  69.  By  an  act  passed 
four  years  later  the  company  was  empowered  to 
charge  a  reasonable  amount  for  the  water,  but 
there  was  no  express  enactment  as  to  the 
mode  of  recovering  that  amount.  Subsequently 
to  the  Waterworks  Glauses  Consolidation  Act, 
1847,  another  private  act,  15  &  16  Vict  c  dii-, 
was  passed  in  part  incorporating  that  act,  but 
expressly  stipulating  that,  "  except  as  by  this 
act  is  expressly  provided,  this  act  or  anything 
therein  contained  shall  not  repeal,  alter,  in- 
terpret, or  in  any  manner  affect  any  of  the  pro- 
visions in  force  at  the  commencement  of  this 
act,  of  the  recited  acts,  or  any  of  them ;  and, 
except  only  so  far  as  is  requisite  for  the  execution 
of  this  act,  all  those  provisions,  and  all  powers, 
privileges,  exemptions,  and  immunities  of  or  for 
the  benefit  of  any  person  or  corporation  thereby 
respectively  created,  conferred,  or  saved  shall  be 
and  continue  as  valid  and  effectual  as  if  this  set 
had  not  passed."  The  act  of  46  Geo.  3  was 
therein  recited.  The  company  issued  its  war- 
rant of  distress  on  the  plaintiffs  premises, 
and  he  brought  an  action  for  illegal  distress: 
— Held,  that  the  power  of  the  company  to 
distrain  was  not  taken  away  either  inferentiaUy 
by  the  Waterworks  Glauses  Consolidation  Act, 
1847,  or  expressly  by  the  subsequent  private 
act  incorporating  that  act  Richards  v.  Wat 
Middlesex  Waterworks  Company,  15  Q.  B.  D.660 ; 
54  L.  J.,  Q.  B.  651 ;  33  W.  B.  902  ;  49  J.  P.  631 
— D. 

Overcharge  —  Condition  Precedent  —  Deter- 
mination of  Justices.] — By  a  borough  improve- 
ment act  with  regard  to  the  supply  of  water,  it 
was  provided  that,"  The  following  acts  and  parts 
of  acts  (so  far  as  they  are  applicable  and  not  in- 
consistent with  this  act)  shall  be  incorporated 
with  this  act  (that  is  to  say)  :  The  Waterworks 
Glauses  Acts,  1847  and  1863  (except  the  provi- 
sions thereof  with  respect  to  the  amount  of 
profit  to  be  received  by  the  undertaken  when 
the  waterworks  are  carried  on  for  their  benefit)/ 
The  Waterworks  Glauses  Act,  1847,  provides: 
"  And  with  respect  to  the  payment  and  recovery 
of  water-rates,  be  it  enacted  as  follows."  Then 
comes  8.  68,  which  provides  that  the  rates  an  to 


1969 


WATER — Canal  Company — Rivers  and  Streams. 


1970 


be  paid  according  to  the  annual  value,  and  if 
any  dispute  arise  as  to  such  value,  the  same  shall 
be  determined  by  two  justices.  In  the  same  act 
there  are  a  series  of  sections  (75  to  84)  under  the 
heading :  "  and  with  respect  to  the  amount  of 
profit  to  be  received  by  the  undertakers  when 
the  waterworks  are  carried  on  for  their  benefit, 
be  it  enacted  as  follows."  Then  follow  ss.  75  to 
84  : — Held,  that  s.  68  of  the  Waterworks  Clauses 
Act,  1847,  was  not  incorporated  in  the  Borough 
Improvement  Act,  and  that  the  settlement  by 
two  justices  of  a  dispute  as  to  the  value  was  not 
a  condition  precedent  to  the  plaintiff's  right  to 
bring  an  action  for  an  overcharge.  Slater  v. 
Burnley  {Mayor),  59  L.  T.  636  ;  36  W.  R.  831 ; 
53  J.  P.  70— D. 


Money  had  and  received —Compulsory 


Payment.] — The  defendants,  as  sanitary  au- 
thority for  the  borough  of  B.,  had  demanded 
from  the  plaintiff,  and  the  plaintiff  had  paid,  a 
water-rate  of  SI.  15*.  id.,  such  rate  being 
calculated  on  the  "  gross  rental  "  of  the  plaintiff's 
premises.  The  plaintiff,  contending  that  such 
rate  ought  to  have  been  assessed  on  the  "  rate- 
able value  "  only,  brought  an  action  in  the  county 
court  to  recover  the  difference  overpaid.  The 
defendants  had  no  power  to  distrain  for  the 
rates,  but  they  had  a  power  to  stop  the  water 
supply  for  non-payment ;  they  had  not  stopped 
the  water  supply,  and  had  not  threatened  to  do 
so.  The  county  court  judge  held  that  the  pay- 
ment was  not  a  voluntary  one,  and  could  be 
recovered  back,  on  the  ground  that  the  de- 
fendants had  a  power  to  stop  the  water  supply : 
— Held,  that  the  payment  was  a  voluntary  one, 
and  could  not  be  recovered  back.    lb. 


II.    CABAL  COMPANY. 

Bight  to  8upport— Mines— Compensation  for 
not  Working— Bight  of  Action  for  Injury.]— 
By  an  act  giving  a  company  power  to  make  a 
canal  it  was  provided  that  nothing  therein 
contained  should  affect  the  right  of  the  owners 
of  land  to  the  mines  and  minerals  lying  within 
or  under  the  lands  to  be  made  use  of  for  the 
canal,  and  it  should  be  lawful  for  such  owners 
to  work  such  mines  not  thereby  injuring, 
prejudicing,  or  obstructing  the  canal ;  and  fur- 
ther, that  if  the  owner  or  worker  of  any  coal  or 
mine  should  in  pursuing  such  mine  work  near  or 
under  the  canal,  so  as  in  the  opinion  of  the  com- 
pany to  endanger  or  damage  the  same,  or  in  the 
opinion  of  the  owner  or  worker  of  the  mine  to 
endanger  or  damage  the  further  working  thereof, 
then  it  should  be  lawful  for  the  company  to  treat 
and  agree  with  the  owner  or  worker,  and  in  case 
of  disagreement  a  jury  was  to  be  summoned  to 
assess  the  amount  such  owner  or  worker  ought 
to  receive  on  being  restrained  from  working 
such  mine,  and  on  payment  of  the  amount 
assessed  by  the  jury  such  owner  or  worker  was 
to  be  perpetually  restrained  from  working  such 
mine  within  the  limits  for  which  satisfaction 
should  by  the  jury  be  declared  to  extend.  The 
defendants  gave  the  company  notice  that  they 
were  going  to  work  coal  forming  the  support  of 
the  canal,  and  the  company  declined  to  purchase 
or  pay  compensation  to  the  defendants  for 
leaving  the  coal.  The  defendants  thereupon 
worked    the  coal,  and   thereby  damaged  the 


canal : — Held,  that  the  coal-owner  or  worker  had 
a  right  under  the  act  to  require  that  compensa- 
tion should  be  assessed  by  a  jury,  but  had  no 
right  to  work  the  coal  to  the  injury  of  the  canal, 
and  was  liable  to  the  company  for  the  damage 
so  caused.  Dudley  Canal  Company  v.  Graze- 
brook  (1  B.  &  Ad.  59)  distinguished.  Lancashire 
and  Yorkshire  Railway  v.  Knotole*,  20  Q.  B.  D. 
391  ;  57  L.  J.,  Q.  B.  150  ;  52  J.  P.  340-C.  A. 
Affirmed  14  App.  Cas.  248— H.  L.  (B.). 

Towing  Path— Dedication  to  Public]— Land 
acquired  by  a  company  under  an  act  of  Parlia- 
ment for  the  purposes  of  their  undertaking  as 
specified  by  such  act  may  be  dedicated  by  them 
as  a  public  highway,  if  such  use  by  the  public 
be  not  incompatible  with  the  objects  prescribed 
by  the  act.  Therefore,  where  land  was  acquired 
and  used  by  a  canal  company  under  their  statutes 
for  the  purposes  of  a  towing-path,  and  it  appeared 
that  the  use  of  it  as  a  public  footpath  was  not 
inconsistent  with  its  use  as  a  towing-path  by 
the  company: — Held,  that  the  company  could 
dedicate  the  land  as  a  public  footpath  subject  to 
its  use  by  them  as  a  towing-path.  Rex  v.  Leake 
(5  B.  &  Ad.  469)  approved  and  followed.  Grand 
Junction  Canal  Company  v.  Petty,  21  Q.  B.  D. 
273  ;  57  L.  J.,  Q.  B.  572  ;  59  L.  T.  767  j  36  W.  R. 
795  ;  52  J.  P.  692— C.  A. 

Liability  for  Damage  by  Percolation.  ] — Bee 
Evan*  v.  Manchester,  Sheffield  and  Lincolnshire 
Railway,  post,  col.  1973. 


III.    BIYBB8  ABB  8TBBAJC8. 

Construction  of  Conveyance — Bed  of  Elver 
ad  medium  filum — Presumption.]  —  The  pre- 
sumption that,  by  a  conveyance  describing  the 
land  thereby  conveyed  as  bounded  by  a  river, 
it  is  intended  that  the  bed  of  the  river,  usque  ad 
medium  filum,  should  pass,  may  be  rebutted  by 
proof  of  surrounding  circumstances  in  relation 
to  the  property  in  question  which  negative  the 
possibility  of  such  having  been  the  intention. 
The  owners  of  a  manor  by  conveyances  made 
respectively  in  1767  and  1846  granted  to  pur- 
chasers pieces  of  riparian  land  fronting  a  river, 
the  bed  of  which  formed  parcel  of  the  manor. 
It  was  proved  that,  prior  to  the  earliest  of  the 
conveyances,  a  fishery  in  the  river  fronting  the 
lands  conveyed  had  for  a  very  long  time  back 
been  from  time  to  time  let  to  tenants  by  the 
lords  of  the  manor  as  a  separate  tenement,  dis- 
tinct from  the  riparian  closes  ;  and  that  at  the 
date  of  the  conveyances  in  1846  such  fishery 
was  actually  under  lease  to  tenants.  The 
grantees  under  the  before-mentioned  convey- 
ances, and  their  successors  in  title,  had,  until 
the  acts  complained  of  in  the  action,  never 
claimed  or  exercised  any  right  of  fishing  over 
the  bed  of  the  river  by  virtue  of  any  right  of 
soil  or  otherwise,  but  the  owners  of  the  manor 
or  their  tenants  of  the  fishery  had  always  fished 
without  interruption : — Held,  that  under  the 
circumstances  the  conveyances  ought  not  to  be 
construed  as  passing  any  portion  of  the  bed  of 
the  river  to  the  grantees.  Devonshire  (Duke)  v. 
Pattinson,  20  Q.  B.  D.  263  ;  57  L.  J.,  Q.  B.  189  ; 
68  L.  T.  392  ;  52  J.  P.  276— C.  A. 

Though  the  presumption  that  a  grant  of  land 
described  as  bounded  by  an  inland  river 


1971 


WATEB^- Injuries  by. 


1972 


the  adjoining  half  of  the  bed  of  the  river  may 
be  rebutted  by  circumstances  which  show  that 
the  parties  most  have  intended  it  not  to  pass, 
it  will  not  be  rebutted  because  subsequent 
circumstances,  not  contemplated  at  the  time 
of  the  grant,  show  it  to  have  been  very  dis- 
advantageous to  the  grantor  to  have  parted 
with  the  half  bed,  and  if  contemplated  would 
probably  have  induced  him  to  reserve  it ;  nor  is 
the  presumption  excluded  by  the  fact  that  the 
grantor  was  owner  of  both  banks  of  the  river. 
Micklcthwait  v.  Newlay  Bridge  Company, 
33  Ch.  D.  133  ;  55  L.  T.  336  ;  51  J.  P.  132— C.  A. 
M.  being  entitled  to  lands  on  both  sides  of  a 
river,  sold  and  conveyed  to  L.  a  piece  of  land 
the  dimensions  of  which  were  minutely  given  in 
the  conveyance,  and  which  was  therein  stated  to 
contain  7752  square  yards,  and  to  be  bounded  on 
the  north  by  the  river,  and  to  be  delineated  on 
the  plan  drawn  on  the  deed,  and  thereon  coloured 
pink.  The  dimensions  and  colouring  extended 
only  up  to  the  southern  edge  of  the  river,  and  if 
half  the  bed  had  been  included  the  area  would 
have  been  10,031  square  yards  instead  of  7,752. 
The  deed  contained  various  reservations  for  the 
benefit  of  M.,  but  contained  nothing  express  to 
show  whether  the  half  of  the  bed  was  intended 
to  pass  or  not.  M.  was  at  the  time  owner  of  a 
private  bridge  close  by,  from  which  he  received 
tolls.  Thirty  years  afterwards  a  bridge  was  pro- 
jected to  cross  the  river  from  L/s  land.  The 
plaintiffs,  who  had  succeeded  to  all  M.'s  property 
in  the  neighbourhood,  brought  their  action  to 
restrain  the  making  of  the  new  bridge.  If  the 
grant  to  L.  passed  half  the  bed,  no  part  of  the 
new  bridge  would  be  over  land  of  the  plaintiffs  : 
— Held,  that  the  presumption  that  the  grant  in- 
cluded half  the  bed  was  not  rebutted,  and  that 
an  injunction  could  not  be  granted  on  the  ground 
that  the  erection  of  the  bridge  would  be  a  tres- 
pass,   lb. 

Obstruction — Actual  Damage  not  essential.] 
— In  an  action  for  wrongfully  obstructing  the 
flow  of  a  river  by  increasing  the  height  of  a  weir, 
whereby  the  plaintiff's  land  abutting  on  the 
river  was  flooded,  if  the  effect  of  the  acts  com- 
plained of  was  to  raise  the  water  of  the  river  as 
it  flowed  past  the  plaintiff's  land  above  the 
height  at  which  it  ought  of  right  to  have  flowed, 
such  raising  would  be  an  actionable  wrong,  and 
would  entitle  the  plaintiff  to  a  finding  in  his 
favour  with  nominal  damages,  actual  damage 
not  being  essential  in  order  to  maintain  the 
action.  William*  v.  Morland  (2  B.  &  C.  910) 
not  followed.  McGlone  v.  Smithy  22  L.  R.,  Ir. 
559— Ex.  D. 

Riparian  Proprietors— Variation  of  User.] — 
The  owner  of  land  not  abutting  on  a  river  with 
the  licence  of  a  riparian  owner  took  water  from 
the  river,  and  after  using  it  for  cooling  certain 
apparatus  returned  it  to  the  river  unpolluted 
and  undiminished  : — Held,  that  a  lower  riparian 
owner  could  not  obtain  an  injunction  against 
the  landowner  so  taking  the  water,  or  against 
the  riparian  owner  through  whose  land  it  was 
taken.  Kensit  v.  Great  Eastern  Railway,  27 
Ch.  D.  122  ;  54  L.  J.,  Ch.  19 ;  51  L.  T.  862 ;  32 
W.  R.  885— C.  A. 

Observations  on  the  rights  which  can  be 
acquired  by  a  riparian  owner  in  an  artificial 
stream.    lb. 


Liability  of  Conservancy  (tommiisioneri  tor 
Damage  to  Lands  adjoining  Reclaimed  Lands.] 

— The  owner  of  a  farm  between  which  and  a 
tidal  river  were  lands  that  had  been  reclaimed 
by  conservancy  commissioners  from  the  iirer, 
sued  Bach  commissioners  for  damage  caused  to 
his  farm  by  the  river  overflowing  a  sea-wall  be- 
tween the  reclaimed  lands  and  the  river,  and 
flowing  over  the  reclaimed  lands  on  to  his  farm : 
— Held,  that  as  the  commissioners  were  by  their 
acts  under  the  obligation  to  maintain  and  repair 
the  sea-wall,  they  were  liable  not  only  for 
damage  caused  to  the  reclaimed  lands,  but  to 
lands  beyond  such  lands,  by  reason  of  the  sea- 
wall being  insufficient  in  height  to  prevent 
an  overflow  of  the  river,  and  further  that  the 

Elaintiff  was  not  deprived  of  his  right  of  action 
y  the  fact  of  the  water  having  flowed  from  the 
reclaimed  lands  on  to  his  farm  in  consequence 
of  his  landlords  having  made  a  cutting  through 
an  embankment  in  order  to  obtain  access  to  the 
reclaimed  lands.  Bramlett  v.  Toes  Conservancy 
Commissioners,  49  J.  P.  214 -D. 

navigation— Bye-law — Obstruction  of  ves- 
sels.]— The  W.  navigation  trustees  having  power 
to  make  bye-laws  for  the  ordering  and  good 
government  of  the  navigation  of  the  river  W., 
made  a  bye-law  that  the  person  having  charge  of 
a  vessel  shall  not  lie  up  or  moor  the  same  so  as 
to  prevent  other  vessels  passing.  S.'s  vessel  was 
moored  on  one  side,  the  I.  was  moored  on  the 
other  side,  and  each  said  it  was  the  other's  torn 
to  remove  for  a  third  vessel  to  pass,  but  neither 
moved  :— Held,  that  S.  was  rightly  convicted 
under  the  bye-law,  and  it  was  no  answer  to  set 
up  a  custom  about  each  obstructing  vessel  having 
to  remove  alternately,  and  that  he  had  removed 
the  time  previous.  Stubbs  v.  Hildtich,  51  J.  P. 
758— D. 

Waterman's  Act— Barge  of  50  Tons.]— Under 
the  Thames  Conservancy  and  Watermen's  Acts, 
and  bye-laws  thereunder,  if  a  barge  under  weigh 
exceeds  50  tons,  there  must  be  two  qualified 
licensed  watermen  on  board,  and  one  is  not 
sufficient  though  assisted  by  another  unqualified 
man.    Perkins  v.  Gingell,  50  J.  P.  277— D. 

Bight  of  Easement.  ]—See  Easbkekt,  IIL 

Pollution  ol]—See  Nuisance. 


IV.  OTTTBIE8  BT  WATER. 

Liability  of  Conservancy  ftnnmissioneri.]— 
See  Bramlett  v.  Tees  Conservatory  Cmmistknert, 
supra. 

Sending  Water  on  adjoining  Lands  for  Pro- 
tection of  Defendants'  Premises.]— By  reason 
of  an  unprecedented  rainfall  a  quantity  of  water 
was  accumulated  against  one  of  the  sides  of  the 
defendants'  railway  embankment,  to  such  an  ex- 
tent as  to  endanger  the  embankment,  when,  in 
order  to  protect  their  embankment,  the  defen- 
dants cut  trenches  in  it  by  which  the  water 
flowed  through,  and  went  ultimatelv  on  to  the 
land  of  the  plaintiff,  which  was  on  the  opposite 
side  of  the  embankment  and  at  a  lower  leTel, 
and  flooded  and  injured  it  to  a  greater  extent 
than  it  would  have  done  had  the  trenches  not 


1973 


WAY — Highways. 


1974 


been  cut.  In  an  action  for  damages  for  such 
injury,  the  jury  found  that  the  cutting  of  the 
trenches  was  reasonably  necessary  for  the  pro- 
tection of  the  defendants*  property,  and  that  it 
was  not  done  negligently  : — Held,  that  though 
the  defendants  had  not  brought  the  water  on 
their  land,  they  had  no  right  to  protect  their 
property  by  transferring  the  mischief  from  their 
own  land  to  that  of  the  plaintiff,  and  that  they 
were  therefore  liable.  Whallcy  v.  Lancashire 
and  Yorkshire  Railway,  13  Q.  B.  D.  131 ;  53 
L,  J.,  Q.  B.  285  ;  50  L.  T.  472  ;  32  W.  R.  711 ;  48 
J.  P.  500— C.  A. 

Percolation  from  one  House  to  adjoining 
House.] — A.  allowed  water  to  collect  in  the 
cellar  of  his  house.  The  water  percolated 
through  the  ground  and  injured  the  cellar  of 
the  adjoining  house  belonging  to  B. : — Held, 
that  B.  had  a  right  of  action  against  A.  in 
respect  of  the  injury  so  done.  Ballard  v.  Tom- 
linson  (26  Ch.  D.  194)  dissented  from.  Snow  v. 
Whitehead,  27  Ch.  D.  588  ;  53  L.  J.,  Ch.  885  ;  51 
L.  T.  253 ;  33  W.  R.  128— Kay,  J. 

Percolation  —  Compensation — Company  with 
Statutory  Powers.] — A  company  with  statutory 
powers  suffered  water  to  percolate  from  their 
canal  into  an  adjoining  mill  and  cause  damage. 
Such  percolation  arose  in  the  first  instance  from 
a  subsidence  of  the  land  caused  by  the  working 
of  a  mine-owner  under  both  the  canal  and  the 
mill,  and  could  not  have  been  foreseen  or  pre- 
vented by  the  company  by  any  reasonable  means 
at  any  reasonable  cost : — Held,  that  the  canal 
company  were  nevertheless  guilty  of  negligence 
in  not  making  good  the  damage  when  it  occurred, 
tod  must  pay  compensation  to  be  assessed  as 
provided  by  the  Canal  Act,  but  that  it  was  not  a 
case  for  granting  an  injunction  against  the  com- 
pany to  restrain  the  percolation  of  water.  Evans 
v.  Manchester ',  Sheffield,  and  Lincolnshire  Hail- 
way,  36  Ch.  D.  626  ;  57  L.  J.,  Ch.  153  ;  57  L.  T. 
194  ;  36  W.  R.  328— Kekewich,  J. 

Measure  of  Damages.]— Sec  Rust  v.  Victoria 
Graving  Dock  Company,  ante,  col.  601. 


WATERMEN. 

lumber  required  in  Navigation.]—^  Per- 
kins  v.  Qingell,  supra. 


WAT. 

I.  Highways. 

1.  Creation  of,  1974. 

2.  Stoppage  and  Diversion  of,  1975. 

3.  User  of. 

a.  Obstruction,  1976. 

b.  Encroachment,  1978. 

c.  User  of  Locomotives,  1978. 

4.  Power  and  Liability  of  Authority, 

1978. 


5.  Rates,  1979. 

6.  Repair. 

a.  Obtaining  Materials,  1980. 

b.  Extraordinary  Traffic,  1980. 

c.  Liability  of    County   Authority, 

1981. 

d.  Liability  in  other  Cases,  1983. 

e.  Summary  Proceedings  for  Non- 

repair, 1984. 
/.  Indictment  for  Non-repair,  1984. 

II.  Turnpike  Roads,  1985. 

III.  Bridges,  1985. 

IV.  Rights  op  Way.— See  Easement,  I. 

V.  Road   under  Public  Health  Act.— 
See  Health,  II.,  2. 

VI.  Road  in  Metropolis.—^  Metropolis, 
I.,  3,  b. 


I.    HIGHWAYS. 

1.    CREATION    OF. 

Dedication  to  Public— Tolls.] — The  promoters 
of  an  intended  road  by  deed  declared  that  the 
road  should  not  only  be  enjoyed  by  them  for 
their  individual  purposes,  but "  should  be  open 
to  the  use  of  the  public  at  large  for  all  manner 
of  purposes,  in  all  respects  as  a  common  turnpike 
road,"  but  subject  to  the  payment  of  tolls  by  the 
persons  using  it  : — Held,  that  this  was  not  & 
dedication  of  the  road  to  the  public,  and  that 
the  road  was  not  a  highway  repairable  by  the 
inhabitants  at  large  under  s.  150  of  the  Public 
Health  Act,  1875.  Austerberry  v.  Oldham  Cor- 
poration, 29  Ch.  D.  750  ;  55  L.  J.,  Ch.  633  ;  53 
L.  T.  543  ;  33  W.  R.  807  ;  49  J.  P.  532— C.  A. 

Semble,  an  individual  cannot,  without  legisla- 
tive authority,  dedicate  a  road  to  the  public  if 
he  reserves  the  right  to  charge  tolls  for  the  user  \ 
and  the  mere  fact  that  a  number  of  persons  form 
themselves  into  a  company  for  making  and  main- 
taining a  road,  and  erect  gates  and  bars  and 
charge  tolls,  does  not  make  the  road  a  "  turnpike 
road,"  in  the  sense  of  a  turnpike  road  made  such 
by  act  of  Parliament,  and  so  dedicated  to  the 
public.    lb. 


Land  Vested  in  Company  for  Statutory 


Purposes.] — Land  acquired  by  a  company  under 
an  act  of  Parliament  for  the  purposes  of  their 
undertaking  as  specified  by  such  act  may  be 
dedicated  by  them  as  a  public  highway,  if  such 
use  by  the  public  be  not  incompatible  with  the 
objects  prescribed  by  the  act  Therefore,  where 
land  was  acquired  and  used  by  a  canal  company 
under  their  statutes  for  the  purposes  of  a  towing- 
path,  and  it  appeared  that  the  use  of  it  as  & 
public  footpath  was  not  inconsistent  with  its  use 
as  a  towing-path  by  the  company  : — Held,  that 
the  company  could  dedicate  the  land  as  a  public- 
footpath  subject  to  its  use  by  them  as  a  towing- 
path.  Rex  v.  Leake  (5  B.  &  Ad.  469)  approved 
and  followed.  Grand  Junction  Canal  Company 
v.  Petty,  21  Q.  B.  D.  273 ;  57  L.  J.,  Q.  B.  572  -r 
59  L.  T.  767  ;  36  W.  R.  795  ;  52  J.  P.  692— 
O.  A. 

Main  Road— Application  for  Provisional  Order 
—Ordinary  Highway.]— The  16th  section  of  the 


1975 


WAY — Highways. 


1976 


Highways  and   Locomotives  Amendment  Act, 
1878,  provides  as  follows  :— "  If  it  appears  to  a 
county  authority  that  any  road  within   their 
county  which,  within  the  period  between  the 
31st  of  December,  1870,  and  the  date  of  the 
passing  of  this  act,  ceased  to  be  a  turnpike  road, 
ought  not  to  become  a  main  road  in  pursuance 
of  this  act,  such  authority  shall,  before  the  1st 
of  February,  1879,  make  an  application  to  the 
Local  Government  Board  for  a  provisional  order 
declaring  that  such  road  ought  not  to  become  a 
main  road."    The  section  further  provides  that, 
"Subject  as  aforesaid,  where  it  appears  to  a 
county  authority  that  any  road  within  their 
county,  which  has  become  a  main  road  in  pur- 
suance of  this  act,  ought  to  cease  to  be  a  main 
road  and  become  an  ordinary  highway,  such 
authority  may  apply  to  the  Local  Government 
Board  for  a  provisional  order  declaring  that  such 
road  has  ceased  to  be  a  main  road  and  become 
an   ordinary    highway  ":— Held,   that   a   road 
which  had  ceased  to  be  a  turnpike  road  within 
the  period  specified  by  the  first  of  the  above- 
mentioned  provisions,  and  had  become  a  main 
road,  there  being  no  application  for  a  provisional 
order  before  the  1st  of  February,  1879,  was  not 
excluded  from  the  operation  of  the  second  of  the 
above-mentioned  provisions,  and  that  the  Local 
Government  Board  had,  therefore,  jurisdiction 
to  make  a  provisional  order  declaring  such  road 
an  ordinary  highway  upon  an  application  made 
subsequently  to  the  1st  of  February,  1879.    Reg. 
v.  Local  Government  Board,  16  Q.  B.  D.  70  ;  54 
L.  J.,  M.  C.  104  ;  53  L.  T.  194 ;  49  J.  P.  680— 
C.  A. 


Company  v.  Tottenham  Board  of  Hcaitk,  13 
Q.  B.  D.  640;  53  L.  J.,  M.  C.  136;  32W.R. 
798— D. 


3.  USEE  OF. 


a.  Obstruction. 


Liberties  merged  in  Counties — County 

Authority— Becorder.]— Liberties  merged  into 
counties  by  the  Highways  Act,  1862,  are  revived 
by  the  Highways  Act,  1878,  and  so  far  as  that 
act  applies  are  to  be  deemed  separate  "  coun- 
ties." The  "county  authority  " for  such  liberties 
are  the  justices  of  those  liberties  in  quarter  ses- 
sions assembled.  A  recorder  of  a  borough  to 
which  such  liberties  belong,  when  holding  his 
quarter  sessions,  represents  the  justices  of  such 
counties  in  quarter  sessions  assembled,  and  he 
must  be  deemed  to  be  the  "  county  authority " 
under  the  Highways  Act  of  1878,  and  be  required 
to  exercise  the  jurisdiction  of  such  "  county  au- 
thority." The  plea  that  there  is  no  machinery 
for  exercising  such  authority  is  not  sufficient  to 
excuse  the  authority  having  such  jurisdiction 
from  acting  when  properly  applied  to  for  such 
purpose.  Reg.  v.  Dover  {Recorder),  32  W.  fi. 
876  ;  49  J.  P.  86— D. 


2.  STOPPAGE  AND  DIVERSION  OF. 

Expenses— Bight  to  employ  Solicitor.]— The 
charges  of  a  solicitor  employed  by  an  urban 
authority  to  conduct  proceedings  at  the  instance 
of  an  individual  for  the  stopping  up  or  diverting 
a  highway  under  ss.  84,  85  of  the  Highway  Act, 
6  &  6  Will  4,  c.  60,  are  not  "expenses"  within 
e.  84  of  the  act,  so  as  to  be  recoverable  in  the 
manner  pointed  out  by  s.  101 :— Semble,  that  all 
the  steps  required  by  s.  85  to  be  taken  for  the 
purDOse  of  obtaining  the  order  of  sessions,  are 
ministerial  acts  which  ought  to  be  done  by  the 
surveyor  of  the  local  authority.      United  Land 


Boiler  left  on  Roadside.]— The  defendant  left 
an  agricultural  roller  between  the  hedge  and  the 
metalled  part  of  the  road,  having  remored  it 
from  a  field  on  the  opposite  side  of  the  road  lor 
his  own  convenience.  A  pony,  drawing  a  car- 
riage in  which  the  plaintiff's  wife  was  riding,  shied 
at  the  roller,  upset  the  carriage,  and  the  plain- 
tiff's wife  was  killed :— Held,  that  the  roller  was 
an  obstruction  to  the  highway  ;  that  it  was  an 
unreasonable  user  of  the  highway  by  the  defen- 
dant, and  that  the  plaintiff  was  entitled  to  re- 
cover damages  for  the  death  of  his  wire  under 
Lord  Campbell's  Act  WUhhu  v.  2fef,  12 
Q.  B.  D.  110;  49  L.  T.  399  ;  32  W.  R.123;  48 
J.  P.  6— D. 

User  of  Traction-Engine  on  Harrow  Boai]- 
Persons  using  a  traction-engine  and  trucks  on  a 
highway  may  be  indicted  for  a  nuisance,  if  they 
create  a  substantial  obstruction  and  occasion 
delay  and  inconvenience  to  the  public  sub- 
stantially greater  than  such  as  would  arise 
from  the  use  of  carts  and  horses.  See.  t. 
Chittenden,  49  J.  P.  503 ;  15  Cox,  C.  C.  725 
— Hawkins,  J. 

The  owners  are  responsible  for  the  general 
management  of  the  engine  by  their  servants. 
lb. 

"  Wilful  Obstruction. "]-— The  appellant  was 
summoned  under  the  provisions  of  s.  72  of 
the  Highway  Act,  1835,  for  wilfully  obstraet- 
ing  the  free  passage  of  a  public  highway  it 
Sedgley.  It  appeared  that  he  had  marched  into 
the  Bull  Ring  (which  was  a  highway)  at  the 
head  of  a  band,  and  had  taken  up  his  position 
there,  and  had  addressed  a  crowd  for  an  hoar 
and  a  half,  during  which  period  no  person  eonld, 
without  considerable  inconvenience  and  danger, 
have  either  walked  or  driven  across  that  part  of 
the  highway  where  the  appellant  and  his  band 
and  the  crowd  were  stationed.  The  magistrate 
was  of  opinion  that,  although  there  was  a 
passage  round  the  crowd  available  for  traffic, 
the  appellant  was  not  entitled  to  appropriate  to 
himself  any  part  of  the  highway;  accordingly 
he  was  convicted : — Held,  upon  the  above  tads, 
that  there  was  evidence  on  which  the  magistnte 
could  properly  convict  the  appellant  of  an  offence 
under  s.  72  of  the  Highway  Act,  1835.  Hmrr 
or  Homer  v.  Cadman,  55  L.  J.,  M.  C.  110;  64 
L.  T.  421 ;  34  W.  R.  413 ;  60  J.  P.  454 ;  16  Cox, 
C.  C.  51— D. 

Magistrates  convicted  the  appellant  of  the 
offence  of  "  wilfully  obstructing  the  free  passage 
of  a  highway,"  under  5  &  6  Will.  4,  c.  50,  s.  7* 
although  the  appellant  had  not  done  any  act  of 
obstruction  : — Held,  that  an  omission  to  remote 
an  obstruction  after  notice  to  remove  it  might 
amount  to  wilful  obstruction.  GuUy  v.  Smtt* 
12  Q.  B.  D.  121;  53  L.  J.,M.C.35;  48J.P. 
309— D. 

Ditches  out  at  tide  of  Bead.]— The  right  of  the 
public  to  use  a  highway  extends  to  the  whole 
road,  and  not  merely  to  the  part  used  as  via 


1977 


WAY — Highway*. 


1978 


trita.  Therefore,  ditches  fifteen  inches  wide  and 
ten  inches  deep,  cut  completely  across  the  strips 
of  grass  land  at  the  sides  of  roads,  so  as  to 
amount  to  a  danger  to  persons  walking  along 
the  strips,  amount  to  a  nuisance  and  obstruction. 
Nicol  v.  Beaumont.  53  L.  J.,  Ch.  853  ;  50  L.  T. 
112— Kaj,J. 

Kaking  Fins  near— Danger  to  Passengers.] 
— H.  was  charged  under  5  &  6  Will.  4,  c.  50,  s.  72, 
with  unlawfully  assisting  in  making  a  fire  on  the 
highway.  He  was  rolling  a  tar-barrel  that  was 
alight,  along  a  road,  but  no  one  was  injured  or 
endangered  : — Held,  that  H.  could  not  be  con- 
victed, as  it  was  essential  to  the  offence  that 
passengers  should  be  endangered  or  interrupted. 
Hill  t.  Somerset,  61  J.  P.  742— D. 

Highway  within  Metropolitan  Area— Power 
of  Polio©  to  Prosecute.] — A  person,  by  singing 
hymns,  occasioned  a  crowd  to  assemble,  and 
thereby  obstructed  a  certain  highway  within 
the  metropolitan  police  district.  An  informa- 
tion was  accordingly  preferred  against  him  by 
an  inspector  of  police,  under  s.  72  of  the  High- 
way Act : — Held,  that  the  provisions  of  s.  72  of 
the  Highway  Act  were  applicable  to  highways 
within  the  metropolitan  area : — Held,  also,  tbat 
a  prosecution  under  a.  72  of  the  act  might  be 
initiated  by  anyone,  and  therefore  that  the  pro- 
ceedings taken  by  the  police  were  valid.  Back 
t.  Holmes,  57  L.  J.,  M.  C.  37 ;  56  L.  T.  713 ;  51 
J.  P.  693  ;  16  Cox,  C.  C.  263— D. 

BTuisance  —  Statutory    Bight  —  Accident.  ]— 
The  defendants  were  the  owners  of  a  quay,  over 
which  there  was  a  public  right  of  way  to  their 
docks.    The  Great  Eastern  Railway  Company 
by  their  private  act  were  empowered  to,  and 
did   enter  into  an  arrangement  with  the  de- 
fendants   to    lay    tramways    connecting    the 
docks  with    the    railway  system.    The    com- 
pany were  to  keep  the  tramways  in  good  work- 
ing order,  under  the  Tramways  Act,  1870.     The 
company,  as   promoters,  gave   notice   to   the 
defendants  of  their  intention  to  open  and  break 
np  the  road  for  the  purpose  of  doubling  the  rails 
at  a  particular  point.     The  company  did  break 
np   the  highway  for  their  tramway  purposes. 
The  plaintiff  was  injured  by  being  thrown  from 
his  cart  through  the  defective  condition  of  the 
roadway  at  the  place  where  the  works  were 
being  carried  out,  and  brought  his  action  for 
compensation  against  the  defendants  as  owners 
of    the  highway.    The  jury  at  the  trial  found 
that  the  accident  to  the  plaintiff  had  been  caused 
by  the  negligence  of  the  railway  company,  who 
were  in  possession  of  the  spot  where  the  occur- 
rence took  place,  and  tbat  the  roadway  was  in  a 
defective  condition  owing  to  a  breach  of  duty  on 
the  part  of  the  railway  company,  and  gave  the 
plaintiff  substantial  damages: — Held,  that  as 
the  railway  company  were  carrying  out  their 
works  not  under  the  orders  or  as  licensees  of 
the     defendants,    but    under    their    statutory 
powers,  and  were  in  sole  possession  of  the  place 
where  the  accident  happened,  which  was  entirely 
under  their  control,  and  the  negligence  causing 
the  accident  was.  that  of  the  railway  company 
and  not  of  the  defendants,  the  verdict  ought  to 
be    entered   for   the   defendants.     Barham  v. 
Ipswich    Dock  Commissioners,  54  L.  T.  23 — 
Jladdleston,  B. 


Breaking  up  without  Statutory  Autho- 
rity—Prescription.  1 — The  corporation  of  P., 
who  had  no  parliamentary  powers  for  the 
purpose,  supplied  water  to  the  adjoining 
urban  district  of  F.,  and  claimed  the  right  to 
enter  upon  and  break  up  the  streets  of  F.,  when- 
ever occasion  should  require  for  the  purpose  of 
repairing  their  water  pipes,  relying,  as  regarded 
some  of  the  streets,  on  alleged  irrevocable 
licences  granted  by  the  predecessors  of  the  local 
board  of  F.  (i.e.,  the  surveyors  of  highways), 
and  as  regarded  other  streets  on  prescription  : — 
Held,  (1)  tbat  the  claim  of  the  corporation  was 
to  commit  a  nuisance ;  (2)  that  it  was  not  in  the 
power  of  the  surveyors  of  highways  to  grant 
the  alleged  licences ;  (3)  that,  therefore,  as  a 
grant  could  not  be  presumed,  the  corporation 
could  not  obtain  the  right  claimed  by  pre- 
scription. Preston  (Mayor)  v.  Fulwood  Local 
Board,  53  L.  T.  718 ;  34  W.  R.  196  ;  60  J.  P. 
228— North,  J.  Cp.  East  London  Waterworks 
v.  St.  Matthew's,  Bethnal  Gheen,  ante,  col. 
1962. 


Duty  to  Protect.]— &?*  Negligence, 


II.,  4. 


b.    Encroachment. 


Limitation  of  Time  for  Conviction.]— By  9 
Geo.  4,  c.  77,  s.  18,  no  person  may  be  convicted 
of  an  offence  against  3  Geo.  4,  c.  126,  s.  118 
(which  enacts  that  any  person  causing  an 
encroachment  within  a  certain  distance  of 
the  centre  of  a  turnpike  road  shall  be  subject 
to  a  penalty),  after  the  expiration  of  six  months 
from  the  time  when  such  offence  shall  have  been 
committed.  The  period  of  six  months  mentioned 
in  the  section  begins  to  run  from  the  time  that 
a  substantial  encroachment  of  the  highway  has 
been  caused,  and  not  from  the  final  completion 
of  the  encroaching  building  or  other  encroach- 
ment. Hyde  v.  Bntwistle,  52  L.  T.  760 ;  49  J.  P. 
517— D. 

o.    User  of  Locomotive*. 

Tramway— licence  of  County  Authority.] — 
The  steam  engines  auhtorised  by  statute  to  be 
used  on  tramways  are  not  locomotives  within 
the  meaning  of  the  Highways  and  Locomotives 
(Amendment)  Act,  1878,  s.  32,  and,  therefore,  do 
not  require  to  be  licensed  by  the  county  autho- 
rity. Bell  v.  Stockton  Tramways  Company,  51 
J.  P.  804— D. 


4.  POWER   AND   LIABILITY  OF 
AUTHORITY. 


t< 


Dram  "— M  Watercourse  "—Dumbwell.] —A 

dumbwell,  or  shaft  sunk  into  a  porous  stratum 
of  chalk  or  gravel,  into  which  surface  water  from 
a  highway  is  conducted  by  pipes,  and  from  which 
it  percolates  away  through  the  subsoil,  is  not  a 
"  drain  or  watercourse  "  within  the  meaning  of 
8.  67  of  the  Highway  Act,  1835,  and  a  highway 
authority  having  the  powers  of  that  act  is  con- 
sequently not  authorised  by  tbat  act  to  construct 
such  a  dumbwell  in  private  land  near  to  the 
highway  as  part  of  its  drainage  system,  and  to 
clean  it  out  when  necessary.  Croft  v.  Riokmans- 
worth  Highway  Board,  39  Ch.  D.  272  ;  58  L.  J., 
Ch.  14  ;  60  L.  T.  34— C.  A. 


1979 


WAY — Highways. 


1980 


Aotions — Local  Venue.]  —  The  provisions  of 
the  Highways  Act,  1836,  8. 109,  as  to  local  venue 
are  abolished  by  the  Rales  of  Court,  1875,  Ord. 
XXX VI.,  r.  1.  Phelips  v.  Had  ham  District 
Board,  1  C.  &  B.  67— Coleridge,  C.  J. 

Notice  of  Action.]— The  provision  of  the 

above  section  as  to  notice  of  action  does  not 
apply  where  the  principal  object  of  the  action  is 
an  injunction.    lb. 

Dissolution  of  Highway  District.]— By 


the  dissolution  of  a  highway  district,  in  respect 
of  which  a  highway  board  had  been  constituted 
under  the  Highway  Act,  1862,  the  highway 
board,  though  it  ceases  to  have  any  control  over 
the  highways  in  its  district,  does  not  cease  to 
exist  as  a  corporate  body  for  the  performance  of 
its  other  duties,  such  as  those  of  suing  or  being 
sued,  and  of  acting  generally  for  the  purpose  of 
winding  up  its  affairs.  Reg.  v.  Essex  J  J.,  11 
Q.  B.  D.  704 ;  49  L.  T.  394  ;  32  W.  E.  220— 
C.  A.  Affirming  52  L.  J.,  M.  C.  124  ;  47  J.  P. 
725— D. 


5.  RATES. 

Publication — Signature  and  Allowance.]  — 

Where  a  highway  rate,  made  by  a  waywarden  of 
a  highway  district  under  27  &  28  Vict.  c.  101,  s. 
33,  has  been  published  like  a  poor-rate,  it  is  not 
necessary  that  it  should  also  have  been  signed 
and  allowed  by  justices  like  a  poor-rate.  Worth- 
ington  v.  QUI,  49  J.  P.  629— D. 

Urban  District  —  Part  of  Parish  excluded— 
Amount.]- By  s.  29  of  the  Highway  Act,  1835, 
no  highway  rate  to  be  levied  or  assessed  shall 
exceed  at  any  one  time  the  sum  of  10<J.  in  the 
pound,  or  2s.  6d.  in  the  pound  in  the  whole  in 
any  one  year,  without  the  consent  of  four-fifths 
of  the  inhabitants  assembled  at  a  specially  called 
meeting.  By  8.  216  of  the  Public  Health  Act, 
1875,  where  parts  of  a  district  are  not  rated  for 
works  of  paving,  water  supply,  and  sewerage,  or 
for  some  of  them,  the  cost  of  repair  of  highways 
in  those  parts  shall  be  defrayed  out  of  a  highway 
rate  to  be  separately  assessed  and  levied  in  those 
parts  by  the  urban  authority  as  surveyor  of  high- 
ways ;  provided  that  where  part  of  a  parish  is 
included  within  an  urban  district,  and  the  ex- 
cluded part  was,  before  the  constitution  of  that 
district,  liable  to  contribute  to  the  highway  rates 
for  such  parish,  such  excluded  part  shall,  for  all 
highway  purposes,  be  treated  as  forming  part  of 
such  district.  The  hamlet  of  G.  was  formerly  a 
"  parish  "  maintaining  its  own  highways.  Prior 
to  1875  part  of  the  hamlet  was  formed  into  a 
local  government  district,  called  the  inner  dis- 
trict, with  a  local  board,  and  became  an  urban 
district  under  the  Public  Health  Act,  1875.  Part 
of  the  hamlet,  called  the  outer  district,  was 
excluded  from  it.  The  local  board  of  the  inner 
district  repaired  the  highways  in  the  outer  dis- 
trict, and  separately  assessed  a  rate  of  3*.  id.  in 
the  pound  on  the  inhabitants  of  the  outer  dis- 
trict, without  first  obtaining  the  consent  of  four- 
fifths  of  them.  The  appellants  objected  to  the 
validity  of  the  rate  :— -Held,  that  the  consent  of 
four-fifths  of  the  inhabitants  of  the  outer  dis- 
trict was  rendered  unnecessary  by  s.  216  of  the 
Public  Health  Act,  1875,  and  that  the  rate  was 
valid.    Dyson  v.  Qreetland  Local  Board,  13  Q. 


B.  D.  946  ;  63  L.  J.,  M.  C.  106 ;  48  J.  P.  5%- 

C.  A.    Affirming  48  L.  T.  636— D. 


County   Bate— Liability— Borough  ex- 


tended.]— By  a  local  act  passed  in  1874,  the 
limits  of  the  borough  of  Middlesborougfa  were 
extended.  By  s.  20  of  that  act  it  was  enacted 
that  the  extended  area  "  shall  be  exempt  from 
all  county  rates  save  only  in  respect  of  the  pur- 
poses for  which  any  county  rates  are  now  leviable 
within  the  existing  borough."  At  the  time  of 
the  passing  of  that  act  general  county  rates  were 
leviable  within  the  existing  borough  for  all  pur- 
poses for  which  general  county  rates  could  be 
levied  in  any  part  of  the  riding.  By  s.  13  of  the 
Highways  and  Locomotives  (Amendment)  Act, 
1878,  any  road  which  has  ceased  to  be  a  turnpike 
road  in  manner  described  by  the  act  shall  be 
deemed  to  be  a  main  road,  and  one-half  of  the 
expense  incurred  by  the  highway  authority  in 
the  maintenance  of  such  road  shall  be  con- 
tributed out  of  the  county  rate  : — Held,  that  ss 
within  the  borough  existing  at  the  time  of  the 
passing  of  the  local  act  general  county  rate* 
were  leviable  for  all  purposes,  the  saving  of  such 
liability  rendered  the  exemption  in  a  20  in- 
operative; and  therefore  the  inhabitants  of  the 
extended  area  of  the  borough  were  not  exempt 
from  liability  to  pay  county  rates  for  the  main- 
tenance of  a  road  under  a.  13  of  the  Highway* 
and  Locomotives  (Amendment)  Act,  1878.  Mtd- 
dlesborough  Overseers  v.  Yorkshire  (IT.  R.)  /•** 
tices,  12  Q.  B.  D.  239 ;  32  W.  R.  671— C.  A. 


6.    REPAIR, 
a.  Obtaining  Material*. 

Order  for— Place  should  be  Speehtei]— A 
highway  surveyor  applied  under  5  &  6  Win.  4,  e. 
50,  s.  54,  for  an  order  to  take  materials  for  high- 
way repairs  out  of  a  wood  of  H.  The  wood 
consisted  of  thirteen  acres,  and  was  part  of  & 
larger  wood  of  a  hundred  acres : — Held,  that  the 
order  was  bad  for  not  specifying  the  part  of  the 
wood  where  the  materials  were  to  be  taken. 
Hooper  v.  Hawkins,  51  J.  P.  246— D. 


b.  Extraordinary  Traffic. 

What  is.]— Justices  having  made  an  order 
upon  the  appellants  to  pay  the  expenses  of 
repairing  a  highway  as  extraordinary  expensei 
within  s.  23  of  the  Highways  and  Locomotives 
(Amendment)  Act,  1878,  it  appeared  that  the 
road,  called  Carter's  Hill,  was  used  solely  ft* 
agricultural  traffic,  and  was  in  the  parish  of  S- 
which,  with  some  other  parishes  in  the  respon- 
dent's district,  was  situate  upon  a  range  of  hills. 
There  were  several  stone  quarries  upon  this 
range  of  hills  within  the  respondent's  district, 
from  which,  for  many  years,  the  surrounding 
country,  including  the  appellants',  had  drawn 
stones  for  the  repair  of  the  highways,  the  stone 
traffic  being  a  recognised  business  there;  bat 
until  1882  there  had  been  no  stone  taken  from 
the  parish  of  S.  In  1882  a  stone  quarry  w* 
opened  in  S.  at  the  top  of  Gaiter's  Hill,  and  the 
stone  was  conveyed  by  the  appellants  for  the 
repair  of  their  highways  down  Carter's  Hill  in 
the  manner  customary  in  the  stone  traffic— -that 


1981 


WAY — Highways. 


1982 


is,  in  heavy  waggons  with  the  wheels  chained, 
and  damage  was  in  consequence  done  to  the 
road :— Held,  that  the  evidence  warranted  the 
justices  in  coming  to  the  conclusion  that  the 
traffic  was  extraordinary  on  this  particular  road, 
and  that  the  order  therefore  was  right.  Tunbridge 
Highway  Board  v.  Sevenoaks  Highway  Board, 
33  W.  B.  806 ;  49  J.  P.  340— D. 

Liability  for— Contractor  and  8ub-Con tractor.] 
— L.  was  a  contractor  with  the  government  to 
erect  a  rifle-range,  and  employed  D.,  a  sub- 
contractor, to  cart  the  stone.  Nothing  in  the 
contract  between  L.  and  D.  specified  the  mode 
of  conveying  the  stone,  v.  used  traction 
engines,  and  caused  excessive  injury  to  the 
highway : — Held,  that  L.  was  not  the  person 
liable  under  the  Highways  and  Locomotives 
Act,  1878,  s.  23,  but  that  D.  was  liable,  being 
the  only  person  by  whose  orders  the  excessive 
weights  were  earned.  Lapthorn  v.  Harvey,  49 
J.  P.  709— D. 

farayor,  Appointment  of — Evidence.] — J. 
was  not  appointed  district  surveyor  under  seal, 
bat  only  by  minute  of  the  rural  sanitary  com- 
mittee signed  by  the  chairman,  but  not  counter- 
signed by  the  clerk  of  the  board.  L.  being 
summoned  for  damage  caused  by  extraordinary 
traffic,  set  up  the  defence  that  the  appointment 
of  J.  and  his  certificate  and  the  proceedings 
were  void : — Held,  that  as  J.  had  acted  de  facto 
as  surrey  or  the  objection  to  J.  's  appointment  was 
rightly  overruled,  and  the  order  on  L.  was  valid. 
Lancaster  v.  Harlech  Highway  Board,  52  J.  P. 
805-D. 


c.  Liability  of  County  Authority. 

Turnpike  Boads  ceasing  to  be  such  and 
becoming  Main  Boads.]— The  Highways  and 
Locomotives  (Amendment)  Act,  1878  (41  &  42 
Vict  c.  77),  by  s.  13  enacts  that  any  road  which 
has  M  between  the  31st  of  December,  1870,  and 
the  date  of  this  act  ceased  to  be  a  turnpike  road, 
and  any  road  which,  being  at  the  time  of  the 
passing  of  this  act  a  turnpike  road,  may  after- 
wards cease  to  be  such,  shall  be  deemed  to  be  a 
main  road ;  and  one-half  of  the  expenses  in- 
curred from  and  after  the  29th  of  September, 
1878,  by  the  highway  authority  in  the  mainten- 
ance of  such  road,  shall,  as  to  every  part  thereof 
which  is  within  the  limits  of  any  highway  area, 
be  paid  to  the  highway  authority  of  such  area 
by  the  county  authority  of  the  county  in  which 
each  road  is  situate  out  of  the  county  rate." 
The  corporation  of  the  borough  of  Rochdale  was 
the  highway  authority  of  the  Rochdale  highway 
area.  Under  as.  47 — 50  of  the  Towns  Improve- 
ment Clauses  Act,  1847  (10  &  11  Vict.  c.  34),  the 
obligation  to  repair  all  public  highways  within 
the  area  of  the  "  town  "  was  imposed  upon  the 
corporation,  and  the  turnpike  trustees  were  for- 
bidden to  collect  any  toll  or  lay  out  any  money 
on  any  road  within  that  area.  By  a  local  act  in 
1872,  the  boundaries  of  the  borough  were  en- 
larged and  all  the  provisions  of  the  acts  relating 
to  the  "town"  were  made  applicable  to  the 
enlarged  area  of  the  borough.  The  effect  was 
that  further  portions  of  turnpike  roads  were  for 
the  first  time  brought  within  the  area  of  the 
borough  and  within  the  operation  of  the  Towns 
Improvement  Clauses  Act,  1847  : — Held,  that 


these  further  portions,  being  only  parts  of  turn- 
pike roads,  had  not  ceased  to  oe  "turnpike 
roads"  and  were  not  deemed  to  be  "main 
roads,"  within  s.  13  of  the  Highways  and  Loco- 
motives (Amendment)  Act,  1878 ;  and  that  the 
county  authority  were  not  liable  to  pay  half  the 
expenses  of  their  maintenance.  Lancaster  JJ. 
v.  Roclhdale  (Mayor),  8  App.  Cas.  494  ;  53  L.  J., 
M.  C.  6  ;  49  L.  T.  368  ;  32  W.  R.  65  ;  48  J.  P.  20 
— H.  L.  (B.). 

The  Highways  and  Locomotives  (Amendment) 
Act,  1878,  s.  13,  provides  for  the  maintenance  of 
roads  which  have,  since  the  31st  of  December, 
1870,  ceased  to  be  turnpike  roads.  A  provision 
in  turnpike  acts  coming  into  operation  before  the 
Sist  of  December,  1870,  that  turnpike  trustees 
shall  not  spend  money  or  levy  toll  upon  certain 
portions  of  turnpike  roads,  does  not  prevent  such 
portions  of  the  roads  from  being  still  turnpike 
roads  on  the  31st  of  December,  1870,  within  the 
meaning  of  s.  13  of  the  Highways  and  Locomo- 
tives (Amendment)  Act,  1878.  An  agreement 
under  the  Local  Government  Act,  1858  (21  &  22 
Vict.  c.  98),  s.  41,  made  before  the  31st  of 
December,  1870,  between  turnpike  trustees  and  a 
corporation,  under  which  the  turnpikes  upon 
certain  portions  of  turnpike  roads  were  removed, 
and  the  repair  of  such  portions  was  undertaken 
by  the  corporation,  does  not  operate  to  make 
such  portions  cease  to  be  part  of  a  turnpike  road, 
and  therefore  these  portions  also  come  under  the 
operation  of  the  Highways  and  Locomotives 
(Amendment)  Act,  1878,  s.  13.  West  Riding 
JJ.  v.  Reg.,  8  App.  Cas.  781  ;  53  L.  J.,  M.  C. 
41  ;  49  L.  T.  786  ;  32  W.  R.  253  ;  48  J.  P.  229— 
H.  L.  (E.). 

In  1855  a  portion  of  a  turnpike  road  was  in- 
cluded in  an  improvement  district  under  a  local 
act  incorporating  the  Towns  Improvement 
Clauses  Act,  1847  (10  &  11  Vict.  c.  34).  There- 
upon, by  virtue  of  rs.  47-51  of  the  latter  act,  the 
maintenance  of  this  portion  of  the  road  became 
vested  in  the  improvement  commissioners,  and 
the  turnpike  trustees  ceased  to  have  power  to 
collect  tolls  or  lay  out  money  upon  it.  In  1877 
the  turnpike  trust  expired.  Toe  commissioners 
were  the  "  highway  authority  "  for  the  district, 
and  the  district  was  a  "  highway  area  "  within 
the  meaning  of  the  Highways  and  Locomotives 
(Amendment)  Act,  1878  (41  fc  42  Vict.  c,  77),  s. 
13  : — Held,  that  notwithstanding  the  operation 
of  88.  47-51  of  the  Towns  Improvement  Clauses 
Act,  1847,  the  road  only  "ceased  to  be  a  turn- 
pike road ''  and  became  a  "  main  road  "  within 
the  meaning  of  s.  13  of  the  Highways  and  Loco- 
motives (Amendment)  Act,  1878,  upon  the  ex* 
piration  of  the  turnpike  trust ;  and  that  since 
that  event  happened  after  1870,  the  county 
authority  was  liable  to  pay  to  the  commissioners 
one-half  of  the  expenses  incurred  by  them  in  the 
maintenance  of  the  portion  of  the  road  within 
their  district,  as  provided  by  s.  13.  Lancaster  J  J. 
v.  Kewton  Improvement  Commissioners,  11  App. 
Cas.  416  ;  56  L.  J.,  M.  C.  17  ;  55  L.  T.  615  ;  35 
W.  R.  185  ;  61  J.  P.  68— H.  L.  (B.) 

Tramways  —  Agreement  with  Local  Autho- 
rity.]— By  a  local  tramways  act  it  was  provided 
that  in  case  steam  power  should  be  used  on  the 
tramway,  the  tramway  company  should  repair 
the  whole  extent  of  that  part  of  a  main  road  over 
which  their  lines  passed,  but  that  the  company 
might  make  such  contracts  and  agreements  for 
the  repair  of  the  road  with  the  local  authority  of 


1988 


WAY — Highways. 


1984 


the  borough  as  might  be  approved  by  the  Board 
of  Trade.  It  was  also  provided  that  no  contract 
or  agreement  to  be  entered  into  under  the  act 
should  operate  to  lessen  the  liability  of  the  com- 
pany under  s.  28  of  the  Tramways  Acts,  1870. 
The  road  authority  of  the  borough  entered  into 
a  contract  with  the  company,  by  which  the  ex- 
penses of  maintenance  and  repair  of  the  road 
were  divided  between  them.  In  an  action  by 
the  borough  road  authority  against  the  county 
authority  for  contribution  under  s.  13  of  the 
Highways  and  Locomotives  Act,  1878  : — Held, 
that  the  county  authority  were  liable  to  pay  out 
of  the  county  rate  one-half  of  the  expenses  in- 
curred by  the  borough  authority  under  the  con- 
tract. Over*  Darwen  (Mayor)  v.  Lancashire  J  J., 
58  L.  T.  61  ;  36  W.  R.  140— D. 

44  Maintenance  "  of  Bead.]  —  Converting  a 
macadamized  road  into  a  paved  road  does  not 
come  within  the  term  "  maintenance  "  of  the  road 
as  used  in  s.  13  of  the  Highways  and  Locomotives 
(Amendment)  Act,  1878  (41  &  42  Vict.  c.  77)  ; 
and  therefore  a  highway  authority  cannot  recover 
half  the  expenses  thereby  incurred  from  the 
county  authority  under  that  section.  Leek  Im- 
provement Commissioner*  v.  Staffordshire  JJ.} 
20  Q.  B.  D.  794  ;  57  L.  J.,  M.  C.  102  ;  36  W.  R. 
654  ;  52  J.  P.  403— C.  A. 

"  County  Authority  "—Highway  in  Borough.] 
— By  the  Highways  and  Locomotive  (Amend- 
ment) Act,  1878,  8.  13,  half  the  cost  of  mainten- 
ance of  a  road  that  has  ceased  to  be  a  turnpike 
road  is  to  be  paid  "  by  the  county  authority  of 
the  county  in  which  such  road  is  situate  "  ;  and 
by  8. 38  the  word  "  county  "  in  that  act  is  to  have 
the  same  meaning  as  it  has  in  the  Highway 
Act,  1862  (25  &  26  Vict.  c.  61),  s.  2,  which 
provides  that,  for  the  purposes  of  that  act, 
"  all  liberties  and  franchises  except  boroughs 
shall  be  considered  as  forming  part  of  that 
county  by  which  they  are  surrounded."  The 
highway  authority  of  the  borough  of  Over 
Darwen  in  Lancashire  claimed  contribution  in 
respect  of  the  maintenance  of  part  of  a  road  in  the 
borough  that  had  ceased  to  be  a  turnpike  road 
from  the  county  authority  of  the  county  of  Lan- 
caster:— Held,  that  the  word  "county"  in  s.  13 
of  the  act  of  1878  is  a  geographical  term  ;  and 
that  the  county  authority  of  Lancaster,  by  which 
county  the  road  in  question  is  surrounded,  is 
liable  to  contribute  as  "the  county  authority 
of  the  county  in  which  such  road  is  situate." 
Over  Darwen  (Mayor)  v.  Lancashire  JJ.t 
15  Q.  B.  D.  20 ;  54  L.  J.,  M.  C.  51 ;  51  L.  T. 
739— C.  A.    Affirming  48  J.  P.  437— D. 


d.  Liability  in  other  Cases. 


Alteration  of  Highway  District— Rural  Sani- 
tary District.]— The  provisions  in  25  k  26  Vict 
c.  61,  s.  39,  for  altering  a  highway  district  by 
subtracting  from  it  any  parish  by  order  of  the 
county  authority  are  not  repealed  by  41  &  42 
Vict.  c.  77,  s.  3,  providing  for  the  formation  of 
highway  districts  coincident  in  area  with  rural 
sanitary  districts,  and,  by  s.  4,  for  the  exercise  by 
the  rural  sanitary  authority  of  the  powers  of  a 
highway  board  within  their  district,  and  for  the 
dissolution  of  the  existing  highway  board.  There- 
fore, although  by  an  order  made  under  41  &  42 
Vict.  c.  77,  the  area  of  a  highway  district  may 


have  become  coincident  with  the  area  of  a 
rural  sanitary  district,  and  the  rural  sanitary 
authority  have  been  duly  authorised  to  exercise 
the  powers  of  a  highway  board,  they  cannot  en- 
force contribution  to  the  expenses  of  the  board 
from  a  parish  which  has  been  duly  subtracted 
from  the  district  by  an  order  under  25  &  26  Vict, 
c.  61,  8.  39.  Sheppy  Union  v.  fflmley  Overseers, 
17  Q.  B.  D.  364  ;  55  L.  J.,  M.  C.  176  ;  35  W.  B. 
15  ;  50  J.  P.  343— D. 

Tramway  Company.]— See  Tramways. 


e.  Summary  Proceedings  for  Non-repair. 

Admission  by  Waywarden,  how  far  Kiaiig 
on  Highway  Board.] — Where  proceedings  are 
taken  before  justices  for  the  non-repair  of  a 
highway  in  a  parish  forming  part  of  a  highway 
district  under  25  &  26  Vict,  c  61,  a  bona  fide 
admission  by  the  waywarden  of  the  parish  that 
the  road  is  a  highway  which  the  parish  is  bound 
to  repair,  is  binding  on  the  highway  board,  and 
it  is  not  competent  for  them  after  such  an 
admission  to  deny  these  facts  so  as  to  oust  the 
j urisdiction  of  the  justices.  Loughbttrovgh  Hiei- 
way  Board  v.  Curzon,  17  Q.  B.  D.  344  ;  55  L.  J. 
M.  C.  122 ;  55  L.  T.  50  ;  34  W.  R.  621 ;  50  J.  P. 
788— C.  A. 


Authority  in  Default— Jnrisdietiea 
to  order  Bepair.] — Complaint  having  been  made 
under  s.  10  of  the  Highways  and  LocomotJTes 
(Amendment)  Act,  1878  (41  &  42  Vict,  c  77), 
to  a  county  authority  that  the  highway  authority 
of  a  highway  area  within  their  jurisdiction  had 
made  default  in  repairing  certain  highways 
within  their  jurisdiction,  the  county  authority 
were,  after  due  inquiry  and  report  by  their  sur- 
veyor, of  opinion  that  it  was  bona  fide  denied  by 
the  highway  authority  that  the  ways  were  high- 
ways, and  thereupon  held  that  they  had  no 
jurisdiction  to  make  an  order  : — Held,  that  by 
the  terms  of  the  above  section  it  was  the  duty  of 
the  justices  to  make  an  order,  and  that  a  manda- 
mus must  issue  ordering  them  so  to  do.  Btg. 
v.  Farrer  (1  L.  R,  Q.  B.  658)  discussed.  Reg. 
v.  Cheshire  JJ.,  50  L.  T.  483  ;  48  J.  P.  262— D. 


Appeal  to  Quarter  Sessions  from  Order.] — S* 
Illingworth  v.  Bulmer  Bast  Highway  ifteftf, 
ante,  col.  1073. 

Appoal  to  Court  of  Appeal— Special  Cast 
stated  by  Quarter  Sosrions.  ] — See  Illingworth 
v.  Bulmer  Bast  Highway  Board,  ante,  coL  96. 


t  Indictment  for  Non-repair. 

Urban  Sanitary  Authority.]— Neither  a.  144 
of  the  Public  Health  Act  nor  any  other  statute 
renders  an  urban  sanitary  authority  liable  to  a 
common  law  indictment  for  neglecting  duties 
conferred  on  them,  either  as  surveyors  of  high- 
ways or  as  inhabitants  in  vestry  assembled.  If, 
however,  this  liability  is  to  be  established  against 
such  an  authority  in  the  latter  capacity,  it  must 
be  upon  an  indictment  preferred  in  accordance 
with  6  &  6  Will.  4,  c.  50,  and  after  the  preliminary 
steps  thereby  required  have  been  taken.  Beg.  v. 
Poole  (Mayor),  19  Q.  B.  D.  602,  683 ;  66  L.  J„ 


1985 


WAY — Turnpike  Roads — Bridges. 


1986 


M.  C.  131 ;  57  L.  T.  485 ;  36  W.  B.  239  ;  52  J.  P. 
84;  16  Cox,  C.  C.  323— D. 

An  indictment  for  non-repair  of  a  highway- 
will  lie  against  an  urban  sanitary  authority 
under  s.  10  of  the  Highways  and  Locomotives 
Act  1878.  Reg.  v.  Wakefield  (Mayor),  20 
Q.  B.  D.  810 ;  57  L.  J.,  M.  C.  52  ;  36  W.  R.  911 ; 
62  J.  P.  422— D. 

Evidence— Wall  supporting  Highway  out  of 

Heptir.]— Where  a  highway  is  supported  by  a 
wall,  and  such  wall  becomes  dangerous  by  reason 
of  non-repair,  the  inhabitants  of  the  place  in 
which  such  highway  is  situate,  if  liable  to  repair 
the  highway,  can  be  convicted  upon  an  indict- 
ment for  non-repair,  it  being  a  question  for  the 
jury  whether  the  wall  forms  part  of  the  highway 
ot  not  Evidence  of  repairs  to  a  highway  by 
the  owners  of  the  adjoining  lands  is  inadmissible 
upon  an  indictment  against  the  inhabitants  of 
the  place  in  which  such  highway  is  situate, 
unless  liability  on  the  part  of  such  owners  to 
repair  the  highway  in  question,  ratione  tenure, 
has  been  specially  pleaded.  Evidence  of  a  pre- 
vious conviction  of  the  inhabitants  of  a  parti- 
cular district  in  a  parish  for  the  non-repair  of 
one  of  the  highways  in  such  district  is  admissible 
to  prove  that  the  district  is  liable  by  immemorial 
custom  to  repair  all  the  highways  within  its 
limits,  for  the  repair  of  which  the  inhabitants  of 
the  whole  common  law  parish  would  otherwise 
be  prima  facie  liable.  Reg.  v.  Lordsmere  In- 
habitants,  54  L.  T.  766 ;  51  J.  P.  86  ;  16  Cox, 
C.  C.  65— C.  C.  R. 

Acquittal — Motion  for  new  Trial  by  Prose- 
cution.]—Where  a  verdict  of  not  guilty  has  been 
returned  upon,  an  indictment  for  non-repair,  a 
new  trial  will  not  be  granted  ;  but  under  very 
special  circumstances  the  court  may  order  all 
proceedings  upon  the  judgment  to  be  suspended, 
»  as  to  give  an  opportunity  for  the  question  to 
be  again  raised  upon  a  fresh  indictment.  Rem 
v.  Wandsworth  (1  B.  &  Aid.  63)  approved. 
Beg.  v.  Southampton  County,  19  Q.  B.  D.  590  ; 
66  L.  J.,  M.  C.  112  ;  57  L.  T.  261 ;  52  J.  P.  52  ; 
16  Cox.  C.  C.  271— D. 


II.  TURHPIKE  ROADS. 

Repair— When  becoming  Main  Beads.] — See 
supra,  I.  6.  c. 


III.  BRIDGES. 

Liability  to  Repair— Bridge  not  Built  in  exist- 
ing Highwayt — Acquiescence  by  County.]  — 
Upon  the  trial  of  an  indictment  against  the  in- 
habitants of  a  county  for  the  non-repair  of  a 
bridge  built  by  private  owners,  but  not  built 
in  an  existing  highway,  the  true  effect  of  the 
evidence  as  to  the  dedication  to  and  the  adoption 
of  the  bridge  by  the  county  is  always  a  question 
for  the  jury.  The  fact  that  such  a  bridge  is  of 
public  utility  and  is  used  by  the  public  is  not 
necessarily  conclusive  against  the  county  on  the 
question  of  liability,  user  and  utility  being  only 
elements  for  consideration  in  determining  that 
question. ;  but  there  need  not,  in  addition  to 
evidence  of  public  user  and  public  utility,  be 
proof  of  an  overt  act  amounting  to  a  formal 
adoption  by  a  body  capable  of  representing  and 


binding  the  county.  Reg.  v.  Southampton 
County  (17  Q.  B.  D.  424),  in  part  dissented  from. 
Reg.  v.  Southampton  County,  19  Q.  B.  D.  590 ; 
56  L.  J.,  M.  C.  112  ;  57  L.  T.  261 ;  52  J.  P.  62  ; 
16  Cox,  C.  C.  271— D. 

The  owners  of  land  on  one  side  of  a  river 
made  a  road  across  such  land,  and  built  a  bridge 
connecting  such  road  with  an  existing  highway 
on  the  other  Bide  of  the  river.  They  then  dedi- 
cated both  bridge  and  road  simultaneously  to 
the  public,  who  afterwards  used  the  same : — 
Held,  that,  the  bridge  not  having  been  erected 
in  an  existing  highway,  the  county  was  not 
liable  for  its  repair,  inasmuch  as  there  was  no 
evidence  of  acquiescence  by  the  county  in  the 
building  and  dedication  of  the  bridge.  The  effect 
of  the  21st  section  of  the  Highway  Act,  1835,  is,  in 
the  case  of  county  bridges  built  subsequently  to 
that  act,  to  throw  the  liability  in  respect  of  sur- 
face repairs  to  the  roadway  of  the  bridge  and 
approaches  upon  the  highway  authority.  Where 
a  county  of  a  town  has  been  created  by  charter 
and  declared  to  be  a  separate  county,  the  county 
in  which  it  was  originally  situated  is  not  liable 
for  the  repair  of  bridges  within  its  boundaries. 
Reg.  v.  Southampton  County,  17  Q.  B.  D.  424 ; 
55  L.  J.,  M.  C.  158  ;  55  L.  T.  322  ;  35  W.  B. 
10  ;  50  J.  P.  773  ;  16  Cox,  C.  C.  117— D. 

Liability  of  Railway  Company  to  Repair.]— 

See  ante,  col.  1545. 

Restraining  Building  of  Hew  Bridge.]— M. 
being  entitled  to  lands  on  both  sides  of  a  river, 
sold  and  conveyed  to  L.  a  piece  of  land  the 
dimensions  of  which  were  minutely  given  in 
the  conveyance,  and  which  was  therein  stated  to 
contain  7752  square  yards,  and  to  be  bounded  on 
the  north  by  the  river,  and  to  be  delineated  on  the 
plan  drawn  on  the  deed,  and  thereon  coloured 
pink.  The  dimensions  and  colouring  extended 
only  up  to  the  southern  edge  of  the  river,  and  if 
half  the  bed  had  been  included  the  area  would 
have  been  10,031  square  yards  instead  of  7752. 
The  deed  contained  various  reservations  for  the 
benefit  of  M.,  but  contained  nothing  express  to 
show  whether  the  half  of  the  bed  was  intended 
to  pass  or  not  M.  was  at  the  time  owner  of  a 
private  bridge  close  by,  from  which  he  received 
tolls.  Thirty  years  afterwards  a  bridge  was  pro- 
jected to  cross  the  river  from  L.'s  land.  The 
plaintiffs,  who  had  succeeded  to  all  M.'s  property 
in  the  neighbourhood,  brought  their  action  to 
restrain  the  making  the  new  bridge.  If  the 
grant  to  L.  passed  half  the  bed,  no  part  of  the 
new  bridge  would  be  over  land  of  the  plain- 
tiffs : — Held,  that  the  presumption  that  the  grant 
included  half  the  bed  was  not  rebutted,  and  that 
an  injunction  could  not  be  granted  on  the  ground 
that  the  erection  of  the  bridge  would  be  a  tres- 
pagg  : — Held,  also,  that  a  stipulation  in  the  grant 
that  nothing  therein  contained  should  prejudice 
or  affect  M.'s  right  to  take  tolls  over  his  bridge 
did  not  preclude  L.  taking  away  custom  from 
that  bridge  by  the  erection  of  a  new  bridge. 
MwHcthwait  v.  Newlay  Bridge  Company,  33 
Ch.  D.  133  ;  55  L.  T.  336  ;  51  J.  P.  132— C.  A. 

The  conveyance  reserved  to  M.,  his  heirs,  &c., 
the  right  of  entering  upon  the  land  or  any  part 
thereof  for  the  purpose  of  repairing  M.'s  bridge : — 
Held,  that  this  did  not  preclude  L.  from  erecting 
any  structures  upon  the  land,  provided  he  left 
reasonable  access  for  the  purpose  of  repairing 
the  bridge,    lb, 

3  S 


1987 


WEIGHTS   AND   MEASURES— WHARFINGER 


1988 


WEIGHTS  AND  MEASURES. 

Sale  6f  Bread— Delivery  by  Cart  without 
Beam  and  Scales.]— The  appellant,  a  baker, 
haying  received  through  his  traveller  an  order 
from  a  customer  for  a  quartern  loaf,  the  manager 
of  the  baker's  shop  selected,  weighed,  and 
appropriated  to  the  customer  a  loaf,  which  was 
then  carried  out  in  the  cart  and  delivered  to  the 
customer,  on  credit,  by  a  servant  of  the  baker, 
without  being  provided  with  any  beam  and 
scales  with  proper  weights: — Held,  that  the 
appellant  was  rightly  convicted  under  6  &  7 
Will.  4,  c.  37,  s.  7,  which  enacts  that  every  baker 
beyond  certain  metropolitan  limits  who  shall 
"  carry  out  bread  for  sale  in  and  from  any  cart " 
shall  be  provided  with  a  correct  beam  and 
scales  with  proper  weights,  in  order  that  all 
bread  sold  by  him  may  be  weighed  in  the 
presence  of  the  purchaser ;  and  in  case  any  such 
baker  shall  "carry  out  or  deliver  any  bread" 
without  being  provided  with  such  beam  and 
scales  with  proper  weights,  he  shall  be  liable  to 
a  penalty.  Ridgmay  v.  Ward,  14  Q.  B.  D.  110 ; 
64  L.  J.,  M.  C.  20 ;  51  L.  T.  704  ;  33  W.  R.  166  ; 
49  J.  P.  160  ;  16  Cox,  C.  C.  603— D. 

Sect.  7  of  6  &  7  Will.  4,  c.  37,  provides  that 
every  baker  or  seller  of  bread,  and  every  servant 
employed  by  such  baker  or  seller  of  bread,  who 
shall  convey  or  carry  out  bread  for  sale  in  and 
from  any  cart,  shall  be  provided  with  a  beam 
and  scales  with  proper  weights,  in  order  that  all 
bread  sold  by  any  such  baker  or  seller  of  bread, 
or  his  servant,  may  be  weighed  in  the  presence 
of  the  purchaser  thereof :  and  in  case  any  "  such 
baker  or  seller  of  bread"  or  his  servant  shall 
carry  out  or  deliver  any  bread  without  being 
provided  with  such  beam  and  scales,  every  such 
baker  or  seller  of  bread  shall  be  liable  to  a 
penalty.  A  customer  bought  three  loaves  in  a 
baker's  Bhop.  The  baker  weighed  the  loaves  in 
her  presence,  and  subsequently,  at  her  request 
and  to  oblige  her,  his  servant  carried  them  out 
in  a  cart  and  delivered  them  at  her  house, 
without  being  provided  with  any  beam  and 
scales: — Held,  that  the  baker  had  not  carried 
out  or  delivered  the  loaves  as  "  such  baker  or 
seller  of  bread,"  and  therefore  could  not  be  con- 
victed of  an  offence  under  s.  7.  Daniel  v. 
Whitfield,  15  Q.  B.  D.  408  ;  54  L.  J.,  M.  C.  134  ; 
53  L.  T.  471 ;  33  W.  R.  905  ;  49  J.  P.  694— D. 

Sale  of  Intoxicating  Liquor  in  marked  Mea- 
sure.]— By  the  Licensing  Act,  1872,  s.  8,  all  in- 
toxicating liquor  which  is  sold  by  retail,  and  not 
in  cask  or  bottle,  and  is  not  sold  in  a  quantity 
less  than  half  a  pint,  is  to  be  sold  in  measures 
marked  according  to  the  imperial  standards.  A 
publican,  being  asked  for  a  pint  of  beer  by  a 
customer,  went  into  an  inner  room,  where  he 
drew  the  beer  into  a  marked  measure  and  poured 
it  into  a  jug,  which  he  then  brought  into  the 
room  where  the  customer  was  sitting  and  handed 
to  him.  The  customer  could  not  see  the  beer 
drawn,  and  never  saw  it  while  in  the  measure. 
The  publican  having  been  convicted  of  an  offence 
under  s.  8 : — Held,  that  the  sale  was  not  complete 
until  the  beer  was  handed  to  the  customer,  that 
the  beer  was  not  sold  in  a  marked  measure  as 
required  by  the  statute,  and  that  the  conviction 
was  right.  Addy  v.  Blake,  19  Q.  B.  D.  478  ;  66 
L.  T.  711 ;  36  W.  R.  719  ;  61  J.  P.  599  ;  16  Cox, 
C.  0.  259— D. 


WHARFINGER. 

Jetty  in  Tidal  River— Vessel  Grounding— 
Implied  Representation.] — The  defendants,  who 
were  wharfingers,  agreed  with  the  plaintiff  for  a 
consideration  to  allow  his  vessel  to  discharge  and 
load  her  cargo  at  their  wharf,  which  abutted 
upon  the  river  Thames.  It  was  necessary  in 
order  that  the  vessel  might  be  unloaded  that 
she  should  be  moored  alongside  a  jetty  of  the 
defendants  which  ran  into  the  river,  and  that 
she  should  take  the  ground  with  her  cargo  at 
the  ebb  of  the  tide.  The  vessel  at  the  ebb  of 
the  tide  sustained  injury  from  the  uneven  nature 
of  the  ground.  The  bed  of  the  river  at  the  paint 
where  she  took  ground  was  vested  in  the  Conser- 
vators, and  the  defendants  had  no  control  over 
it,  but  it  was  admitted  that  they  had  taken  no 
steps  to  ascertain  whether  it  was  suitable  for  the 
vessel  to  ground  upon : — Held,  that  there  was  an 
implied  undertaking  by  the  defendants  that  they 
had  taken  reasonable  care  to  ascertain  that  the 
bottom  of  the  river  at  the  jetty  was  not  in  a 
condition  to  cause  danger  to  the  vessel,  and  that 
they  were  liable  for  the  damage  sustained  fay 
her.  The  Moorcock,  14  P.  D.  64  ;  60  L.  T.  654 ; 
37  W.  R.  439—0.  A.  Affirming  58  L.  J.,  P.  16- 
Butt,  J. 

Warrant— negligent  Bepreaentation— Estop- 
pel.]—Goods  were  in  1875  stored  by  broken 
with  wharfingers,  who  issued  a  warrant  for  the 
same.  In  1885  the  servants  of  the  defendant, 
who  had  taken  over  the  wharf  and  business, 
delivered  the  goods  by  mistake  to  certain  per- 
sons instead  of  goods  to  which  they  were  en- 
titled, and  the  defendant  was  not  made  aware  of 
the  mistake.  The  warrant  had  been  negotiated, 
and  was  in  January,  1886,  in  the  possession  of 
B.  and  E.  In  that  month,  no  rent  having  been 
paid  for  the  goods  since  1880,  the  defendant 
wrote  two  letters  to  the  plaintiff,  who  had  pre- 
viously taken  over  the  business  of  the  brokers 
and  carried  it  on  under  their  name,  informing 
him,  as  the  supposed  holder  of  the  warrant,  ana 
as  the  person  presumedly  interested  in  the  goods, 
that  the  goods  were  in  hand,  that  rent  was  due, 
and  that,  unless  it  was  paid,  the  goods  would  be 
sold  to  cover  the  amount  due.  The  plaintiff 
made  no  reply,  but  afterwards,  and  in  conse- 
quence of  receiving  these  letters,  he  bought  the 
warrant  from  B.  and  £.  and  applied  to  the  de- 
fendant for  the  goods,  when  the  defendant  fist 
discovered  that  they  were  no  longer  in  his  pos- 
session. In  an  action  to  recover  damages  for  a 
wrongful  conversion  of  the  goods : — Held,  that 
the  defendant  was  liable,  being  estopped  from 
denying  that  he  had  the  goods  specified  in  the 
warrant,  because  he  had  by  his  negligent  mis- 
representation led  the  plaintiff  to  believe  that 
the  goods  were  in  his  possession,  and  such  mis- 
representation was  the  cause  of  the  plaintiff's 
loss,  the  plaintiff  having  purchased  the  warrant 
in  consequence  of  the  same.  Set  on  v.  Lafom^  19 
Q.  B.  D.  68  ;  56  L.  JM  Q.  B.  415;  57  L.  T.  547; 
35  W.  R.  749— C.  A. 


WIPE. 

See  HUSBAND  AND  WIFE. 


1989 


WILD   BIRDS— WILL. 


1990 


WILD    BIRDS. 

Piesei  tation— Authority  of  Owner  or  Occupier 
of  land.]— By  the  3rd  section  of  the  Wild  Birds 
Preservation  Act,  1880,  it  is  provided  that  any 
person  who  between  the  1st  day  of  March  and 
the  1st  day  of  August  in  any  year  after  the 
passing  of  the  act  shall  knowingly  and  wilfully 
shoot  or  attempt  to  shoot  any  wild  bird,  or  shall 
use  any  lime,  trap,  snare,  net,  or  other  instru- 
ment for  the  purpose  of  taking  any  wild  bird, 
shall  forfeit,  Jcc,  but  the  section  is  not  to  apply 
to  the  owner  or  occupier  of  any  land,  or  to  any 
person  authorised  by  the  owner  or  occupier  of 
any  land,  killing  or  taking  any  wild  bird  on 
such  land.  R.  having,  with  the  authority  of  the 
occupier  of  certain  land,  shot  wild  birds  thereon, 
which  were  taken  on  other  lands  without  the 
authority  of  the  owners  or  occupiers  thereof,  was 
charged  with  an  offence  against  the  section : — 
Held,  that  R.  did  not  come  within  the  exemption 
contained  in  the  section,  and  was  rightly  con- 
victed. Beg.  or  Warr  v.  Gilham,  52  L.  T.  326  ; 
49  J.  P.  367— D. 


WILL. 

I.  Testamentaby  Capacity,  1991. 
IL  Testamentaby    Instruments,    what 

ENTITLED  TO  PSOBATE,  ETC. 

1.  Foreign  Wilts,  1992. 

2.  Disposing  of  Freehold*,  1998. 

3.  By  Married  Women,  1993. 

4.  Where   there  are  Several  Instru- 

ments, 1994. 
6.  Incorporation  of  Unattested  Papers, 
1997. 

6.  Conditional  and  Contingent,  1997. 

7.  Alterations,  Additions,  and   Omis- 

sions, 1998. 

8.  Lost  Wills,  1998. 

III.  Donatio  Mobtis  Causa,  1999. 

IV.  Execution  and  Attestation. 

1.  Generally,  2000. 

2.  Attestation   by  Parties  Interested, 

2002. 

.  V.  Revocation,  2004. 

VI.  Republication,  2006. 

VII.  Pbobate  and  Lettebs  of  Adminis- 
tration. 

1.  Jurisdiction,  2006. 

2.  To  whom  granted, 

a.  Probate,  2007. 

b.  Letters  of  Administration,  2008. 

3.  Administration  Bond,  2011. 

4.  Revocation  of  Grant,  2012. 

5.  Practice  relating  to,  2013. 

6.  Probate   and   Legacy  Duty  —  See 

Revenue. 

VIII.  Constbuction. 

1.  General  Principles,  2016. 


2.  Inaccuracies  —  Parol   Evidence   to 

Explain,  2017. 

3.  Devisee*  and  Legatees. 

a.  To  what  Persons. 

i.  Children. 

a.  Illegitimate    Children, 

2021. 
$.  In  Ordinary  Cases,  2025. 
ii.  Survivors,  2027. 
iii  Executors,  2029. 
iv.  Next  of  Kin,  2030. 
v.  Representatives,  2031. 
vi.  Wife,  2032. 
vii.  Cousins,  2083. 
viii.  Heirs,  2033. 
ix.  In  other  Cases,  2034. 

b.  Gift  to  a  Class,  2037. 

c.  Vested  and  Contingent  Interests, 

2039. 

d.  Death  without  Issue,  2047. 

e.  Death  coupled  with  Contingency, 

2048. 
/.  Acceleration  of  Interests,  2052. 
4*  What  Interest  Passes, 

a.  Absolute. 

i.  Lands,  2052. 
ii.  In  other  Cases,  2055. 

b.  Life  Estate  or  Interest,  2058 

c.  Estate  Tail,  2062. 
5.  Bequests  and  Devises. 

a.  Particular  Words,  2065. 

b.  Conditions. 

i.  Repugnancy,  2073. 
ii.  Forfeiture  of   Estate  and 
Interest, 
a.  Non-Residence,  2074. 
JB.  Name  and  Arms  Clause, 

2076. 
y.  Bankruptcy,  &c.,  2077. 
iii.  Other  Conditions,  2078. 
e.  Validity. 

i.  Remoteness,  2080. 
ii.  Uncertainty,  2082. 
iii.  Perpetuities,  2083. 
iv.  Thellusson  Act,  2084. 
v.  To  Charities—  SceCnABlTY. 

d.  Specific  Bequests  and  Devises, 

2084. 

e.  Ademption  and  Satisfaction. 

i.  Ademption,  2087. 
ii.  Satisfaction.  2090. 
/.  Trusts. 

i.  Secret  Trusts,  2091. 
ii.  Resulting  Trusts,  2092. 
iii.  Precatory  Trusts,  2093. 
r.  Annuity,  2094. 
i.  Powers  of  Appointment. 

i.  Instruments  by  which  Exer- 
cised, 2095. 
ii.  Fraud  on  Power,  2099. 
iii.  To  what  Persons,  2101. 
iv.  Estate  by  Implication  in 

Default,  2102. 
v.  Other  Matters  relating  to, 
2103. 
i.  Election,  2106. 
;.  Mortgages   and    Incumbrances, 

2111. 
h.  Charge  and  Payment  of. 

i.  Charge  on  Leaseholds  and 

Real  Estate,  2113. 
ii.  Exoneration  of   Personal 

Estate,  2115. 
iii.  Contribution,  2118. 

3  8  2 


1 


1991 


WILL — Testamentary  Capacity. 


1992 


iv.  Marshalling,  2120. 

v.  Accumulations,  2121. 

vi.  Apportionment    of    Gain 

and  Loss,  2124. 
vii.  Other  Points  as  to  Pay- 
ment, 2126. 
I.  Interest  on  Legacies — See  ante, 

col.  791. 
m.  Conversion — See  Convebsion. 


I.    TESTAMENTARY    CAPACITY. 

Testator  subject  to  Delusions.] — In  a  case  in 
which  the  question  of  testamentary  incapacity 
arose,  the  court  followed  the  decision  of  Banks 
v.  Goodfellow  (5  L.  R.,  Q.  B.  649).  Murfett  v. 
Smith,  12  P.  D.  116 ;  57  L.  T.  498  ;  51  J.  P.  374 
— D. 

Undue  Influence — Coercion — Burden  of  Proof.] 

—To  establish  undue  influence  sufficient  to  in- 
validate a  will,  it  must  be  shown  that  the  will  of 
the  testator  was  coerced  into  doing  that  which 
he  did  not  desire  to  do,  and  the  mere  fact  that 
the  testator  in  making  his  will  was  influenced 
by  immoral  considerations  does  not  amount  to 
such  undue  influence  so  long  as  the  dispositions 
of  the  will  express  the  wishes  of  the  testator. 
Wingrove  v.  Wingrove,  11  P.  D.  81 ;  55  L.  J., 
P.  7  j  34  W.  R.  260  ;  50  J.  P.  56— Hannen,  P. 

Married  Woman— Future  Separate  Estate — 
Assent  of  Husband.]— The  will  of  a  married 
woman  who  had  no  personal  estate  belonging  to 
her  for  her  separate  use  at  the  date  of  the  will, 
made  without  the  assent  of  her  husband,  is 
effectual  to  dispose  of  personal  estate  to  her 
separate  use  which  she  afterwards  acquires  and 
is  entitled  to  at  her  death.  Ckarlemont  (Earl) 
v.  Spencer,  11  L.  R.,  Ir.  490 — C.  A. 

Realty — Renunciation  by  Husband.] — 

Mere  renunciation  by  an  intended  husband  of 
his  marital  rights  in  his  wife's  real  property  is 
not  sufficient  to  clothe  her  with  a  testamentary 
power,  or  to  constitute  a  valid  declaration  at 
trust  of  the  fee.  And  upon  the  death  of  the 
wife  without  issue  during  her  husband's  lifetime, 
her  heir-at-law,  and  not  her  devisee,  will  be 
entitled  to  the  land  of  which  she  is  seised  in  fee 
simple.  Rippon  v.  Baioding  (Ambl.  565)  com- 
mented on.  Bye  v.  Bye,  13  Q.  B.  D.  147  ;  53 
L.  J.,  Q.  B.  442  ;  51  L.  T.  145  ;  33  W.  R.  2— 
C.  A. 

Gift  towards  the  erection  of  a  Church, 

Invalid.]— Under  the  statute  43  Geo.  3,  c.  108, 
which  contained  a  power  to  all  persons  having 
an  interest  in  any  lands  or  in  any  goods  or 
chattels,  to  give  by  deed  enrolled,  or  will  exe- 
cuted, three  months  before  death,  lands  not 
exceeding  five  acres,  or  goods  and  chattels  not 
exceeding  in  value  500Z.,  for  or  towards  the 
erecting  of  any  church,  with  a  proviso  that  the 
act  should  not  extend  to  any  persons  being 
within  age,  nor  women  covert  without  their 
husbands  to  make  any  such  gift : — Held,  that 
the  proviso  was  not  affected  by  the  Married 
Women's  Property  Act,  1882,  which  by  s.  1, 
8ub-s.  1,  gave  power  to  married  women  to  dis- 
pose by  will  of  any  real  or  personal  property  as 
her  separate  property  in  the  same  manner  as  if 
she  were  a  feme  sole.  Consequently  a  gift  by  a 
married  woman,  by  will  executed  three  months 


before  death,  to  the  vicar  and  churchwardens  of 
a  church  of  a  sum  of  3002.  to  be  applied  by 
them  in  the  erection  of  a  new  church,  and  to  be 
paid  out  of  personal  estate  which  was  legally 
applicable  for  the  purpose,  was  held  to  be  in- 
valid. Smith's  Estate,  In  re,  Clement*  v.  Ward, 
35  Ch.  D.  589  ;  56  L.  J.,  Ch.  726  ;  66  L.  T.  850; 
35  W.  R.  514 ;  51  J.  P.  692-Stirling,  J. 

Republication   when  Discovert— Snbw- 

quently  acquired  Property.]  — Testatrix,  a 
married  woman,  having  under  her  marriage 
settlement  a  power  of  appointment  over  some 
15,0002.  worth  of  securities,  and  being  entitled 
to  jewels  and  furniture  for  her  separate  use,  by 
her  will  in  1883,  in  exercise  of  this  power  and 
"  of  all  other  powers  enabling  her  in  this  be- 
half," appointed,  gave,  and  bequeathed  "  all  the 
property  of  whatever  nature  comprised  in  the 
said  settlement,  and  over  which  I  have  any 
power  of  appointment  or  disposition  by  will,"  to 
trustees  upon  certain  trusts.  In  August,  1885, 
the  husband  of  the  testatrix  died,  and  she  there- 
upon became  entitled  to  certain  real  estate,  and 
had  7,5002.  worth  of  personal  estate ;  in  Decem- 
ber, 1885,  she  made  a  codicil  by  which  she 
devised  certain  real  estate  therein  referred  to  as 
having  come  to  her  from  her  late  husband,  bat 
which  did  not  otherwise  refer  to  or  confirm  her 
will.  Testatrix  died  in  1886  :— Held,  that  the 
will  as  originally  executed  was  only  intended  to 
deal  with  the  property  comprised  in  the  settle- 
ment, that  the  codicil  merely  confirmed  the  will 
as  it  originally  stood,  and  in  no  way  enlarged  its 
scope  so  as  to  make  it  include  7,5002.  subsequently 
acquired  from  her  husband,  and  that  as  to  this 
amount  there  was  an  intestacy.  Taylor,  In  rt, 
Whitby  v.  Highton,  57  L.  J.,  Ch.  430 ;  58  L.  T. 
842  ;  36  W.  R.  683— Chitty,  J. 

Section  l,sub-s.  1,  of  the  Married  Women's  Pro- 
perty Act,  1882,  gives  a  married  woman  power 
to  dispose  by  will  only  of  property  of  which  she 
is  seised  or  possessed  while  she  is  under  cover- 
ture. Consequently,  notwithstanding  &  24  of 
the  Wills  Act,  her  will  made  during  coverture  is 
not,  unless  it  is  re-executed  after  she  has  become 
discovert,  effectual  to  dispose  of  property  which 
she  acquires  after  the  coverture  nas  come  to  an 
end.  Price,  In  re,  Stafford  v.  Stafford,  or  PrUt 
v.  Stafford,  28  Ch.  D.  709 ;  54  L.  J.,  Ch.  509 ; 
52  L.  T.  430  ;  33  W.  R.  20— Pearson,  J. 

Banking  accounts  were  kept  in  the  joint  names 
of  husband  and  wife,  and  investments  in  railway 
stock  were  made  in  their  joint  names.  The  wife 
survived  her  husband  five  days,  having  executed 
a  will  during  coverture : — Held,  that  the  balances 
of  the  joint  accounts  and  the  joint  investments 
survived  to  the  wife,  but  did  not  pass  under  her 
will.  Yminq,  In  re,  Trye  v.  Sullivan,  28  Ch.  D. 
705  ;  54  L.  J.,  Ch.  1065  ;  52  L.  T.  754 ;  33  W.B. 
729— Pearson,  J. 


II.  TESTAMENTARY  INSTRUMENTS,  WHAT 
ENTITLES    TO    PRORATE,    ETC. 

1.  FOREIGN   WILLS. 

Execution  by  Alien  Abroad.]— A  will  made  by 
an  alien,  who  was  domiciled  abroad  at  the  time 
of  making  her  will  and  of  her  death,  and  executed 
according  to  the  forms  required  by  English  law, 
but  not  in  manner  required  by  the  law  of  the 


1993 


WILL — Testamentary  Instruments,  de. 


1994 


country  of  her  domicil,  is  not  entitled  to  pro- 
bate, though  her  domicil  of  origin  was  English. 
Bloxam  v.  luvre,  9  P.  D.  130  ;  53  L.  J.,  P.  26  ; 
50  L.  T.  766  ;  32  W.  R.  673— C.  A.  Affirming  47 
J.  P.  377— Hannen,  P. 

Scotch  Will— Invalid  according  to  English 
law— Leaseholds  in  England.] — An  Englishman 
resident  in  Scotland  bequeathed  his  whole  means 
and  estate  to  a  trustee  to  pay  certain  pecuniary 
legacies  and  all  the  rest  of  his  means  and  estate 
to  be  divided  equally  among  certain  of  his  god- 
children. The  execution  of  the  will  was  valid 
according  to  the  law  of  Scotland,  but  invalid 
according  to  English  law.  The  testator  possessed 
leasehold  property  in  England  : — Held,  that  the 
English  leaseholds  passed  under  the  will  by 
virtue  of  the  statute  24  &  25  Vict.  c.  114,  s.  2. 
Watson,  In  re,  Carlton  v.  Carlton,  35  W.  R.  711 
—North,  J. 


2.  DISPOSING    OF    FREEHOLDS. 

Equitable  Conversion.]— Where  freehold  pro- 
perty is,  by  the  doctrine  of  equitable  conversion, 
to  be  considered  as  personalty,  it  is  liable  to 
probate  and  legacy  duty,  and  a  will  disposing  of 
it  is  entitled  to  probate.  Gunn,  In  Goods  of, 
9  P.  D.  242  ;  53  L.  J.,  P.  107  ;  33  W.  R.  169 ;  49 
J.  P.  72— Hannen,  P. 


3.     BY  MARRIED  WOMEN. 
Testamentary  Capacity.]— &«  supra. 

General  or  Limited  Grant.  I— The  limitation 
inserted  before  the  Married  Women's  Property 
Act,  1882,  in  the  probate  of  the  will  of  a  married 
woman,  ought  no  longer  to  be  required,  and  the 
court  will  henceforth  make  a  general  grant. 
Price,  In  Goods  of,  12  P.  D.  137  ;  56  L.  J.,  P. 
72 ;  57  L.  T.  497  ;  35  W.  R.  596  ;  51  J.  P.  615— 
Butt,  J. 

The  court  refused  to  limit  a  grant  of  probate 
of  a  married  woman's  will,  even  where  such  will 
was  made,  and  the  person  who  made  it  had  died 
before  the  Married  Women's  Property  Act,  1882, 
and  when  the  will  and  codicils  were  executed  by 
virtue  of  a  power  of  appointment.  Homfray, 
In  Goods  of,  57  L.  T.  498,  n. ;  51  J.  P.  615— 
-Butt,  J. 

Since  the  Married  Women's  Property  Act,  1882, 
probate  of  the  will  of  a  married  woman  appoint- 
ing executors,  though  the  will  is  made  in  exercise 
of  a  power,  and  contains  no  disposition  of  property 
to  which  she  was  entitled  outside  the  power,  will 
be  granted  in  the  general  form,  and  not,  as  here- 
tofore, in  a  limited  form.  levers,  In  Goods  of, 
13  L.  R.,  Ir.  1— Prob. 

Will  dealing  with  Roalty  only— Personalty.] 
— The  will  of  a  married  woman  dealing  only  with 
realty,  but  appointing  executors,  is  entitled  to 
probate  where  a  portion  of  the  estate  consists 
of  personalty  vested  in  her  by  virtue  of  the 
Married  Women's  Property  Act,  1882.  Cubbon 
or  Cubban,  In  Goods  of,  11  P.  D.  169 ;  55  L.  J., 
P.  77 ;  57  L.  T.  87;  35  W.  R.  200 j  60  J.  P.  744— 
Butt,  J. 

Assent  of  Husband— Power  to  Revoke.]— A 


married  woman  made  a  will  with  the  assent  of 
her  husband,  and  after  her  death  he  assented  to 
the  will : — Held,  that  he  could  not  afterwards 
revoke  his  assent,  and  that  the  will  was  entitled 
to  probate.  The  form  of  the  judgment  and  pro- 
bate determined.  Chappell  v.  Charlton,  56  L.  J., 
P.  73 ;  67  L.  T.  496  ;  61  J.  P.  216— Butt,  J. 


4.  WHERE  THERE  ARE  SEVERAL 
INSTRUMENTS. 

Estate  in  England  and  Belgium— Two  Wills 
— One  in  Belgian,  other  in  English  Form.] — 
A  teBtator  having  an  English  domicil  of  origin 
died  in  Belgium  possessed  of  property  in  Eng- 
land and  in  Belgium.  He  left  two  wills,  one  in 
the  English  form  disposing  of  his  property  in  this 
country,  the  other  in  the  Belgian  form  disposing 
of  his  estate  situate  in  Belgium.  The  court,  on 
the  renunciation  of  the  Belgian  executor  and  on 
an  affidavit  that  according  to  the  law  of  Belgium 
the  Belgian  will  only  applied  to  the  property  in 
that  country,  granted  probate  of  both  wills,  as 
together  constituting  the  last  will  of  the  deceased, 
to  the  English  executor.  Bolton,  In  Goods  of, 
12  P.  D.  202 ;  57  L.  J.,  P.  12 ;  36  W.  R.  287— 
Hannen,  P. 

English  and  Spanish  Wills— Probate  of  Eng- 
lish Will  only.] — A  testator  made  a  will  in 
England,  which  disposed  only  of  English  pro- 
perty. Subsequently  he  made  abroad  another 
will,  which  disposed  of  property  abroad  and 
cancelled  all  previous  dispositions.  The  court, 
with  the  consent  of  all  the  parties  interested, 
ordered  probate  of  the  English  will  only,  and 
allowed  the  foreign  will  to  be  delivered  out  of 
the  registry  for  probate  abroad.  Smart,  In 
Goods  of,  9  P.  D.  64  ;  53  L.  J.,  P.  57;  32  W.  R. 
724  ;  48  J.  P.  456— Hannen,  P. 

Two  Documents   separately   Executed.] — A 

writing,  comprising  two  parts,  on  different 
pages,  separately  signed  and  attested,  but  exe- 
cuted on  the  same  day  and  occasion,  the  first 
part  appointing  executors,  and  commencing, 
"  I  further  will,"  and  disposing  of  further  pro- 
perty, admitted  to  probate  as  one  entire  will. 
Bonner,  In  Goods  of,  21  L.  R.,  Ir.  339— Prob. 

Codicil  the  only  executed  Paper  forthcoming.] 
— At  the  death  of  a  testatrix  the  sole  testamentary 
papers  forthcoming  were  a  duly  executed  codicil 
and  two  drafts  of  wills,  as  to  the  execution  or 
revocation  of  which  there  was  no  evidence : — 
Held,  that  though  the  codicil  by  its  language 
was  dependent  on  the  will  to  which  it  belonged, 
and  could  not  be  construed  without  it,  it  ought 
to  be  admitted  to  probate,  not  having  been  re- 
voked in  any  of  the  methods  prescribed  by  the 
Wills  Act.  Black  v.  Jobling  (1  L.  R.,  P.  685) 
followed.  Gardiner  v.  Court  hope,  12  P.  D.  14  ; 
56  L.  J.,  P.  55  ;  57  L.  T.  280 ;  35  W.  R.  352  ;  50 
J.  P.  791— Butt,  J. 

When  First  revoked  by  Second  Will.] — A 

testatrix  made  a  will  on  the  9th  February, 
1884,  which  she  declared  to  be  her  last  will, 
revoking  all  previous  wills,  and  appointing  a 
residuary  legatee  and  an  executor.  On  19th 
February,  1884,  she  made  another  will,  which 
commenced,  "  I  declare  this  to  be  my  last  will,' 


1995 


WILL — Testamentary  Instruments,  <&c. 


1996 


and  bequeathing  part  of  her  property  in  legacies, 
and  appointing  another  executor :—  Held,  that 
the  latter  will  did  not  revoke  the  former,  and 
both  were  admitted  to  probate.  O'Connor,  In 
Goods  of y  13  L.  R.,  Ir.  406— Prob. 

A  married  woman,  in  exercise  of  a  power  to 
appoint  real  estate  (subject  to  a  trust  for  sale, 
but  not  sold),  bj  will,  made  in  1870,  appointed  a 
life  interest  therein  to  her  husband,  and  after 
his  death  as  she  should  further  appoint.  By  a 
subsequent  will,  made  in  1880,  also  purporting 
to  be  made  in  exercise  of  the  Bame  power,  she  ap- 
pointed three  rent-charges— one  to  her  husband, 
and  the  others  to  two  of  her  children ;  and,  sub- 
ject to  such  rent-charges,  she  appointed  the 
lands  to  her  sons  and  daughters  successively  in 
tail  with  an  ultimate  remainder  to  her  sisters 
(who  were  not  objects  of  the  power)  in  fee,  thus 
purporting  to  deal  with  the  entire  estate ;  and 
she  appointed  her  husband  residuary  legatee  and 
devisee : — Held,  that  the  first  will  was  revoked 
by  the  second,  and  that  the  latter  will  should 
alone  be  admitted  to  probate.  Macfarlane,  In 
Goods  of,  13  L.  R.,  Ir.  264— Prob. 

%■ Evidence  of  Contents.]— A  testator  made 

a  will  in  1864,  appointing  his  wife  sole  executrix, 
and  duly  executed  another  document  in  1877. 
There  was  no  evidence  of  the  contents  of  the 
second  document  except  that  after  its  execution 
the  testator  said,  "  I  have  made  a  will  altering 
my  affairs,  and  I  have  taken  care  of  Ellen,  and 
there  will  be  something  for  Roby,"  and  except  a 
memorandum  at  the  foot  of  the  will  as  follows : 
"This  will  is  now  useless,  a  new  will  having 
been  made  in  October,  1877,  upon  my  wife  telling 
me  she  was  sorry  she  had  ever  seen  me,"  &c  : — 
Held,  that  in  the  absence  of  proof  of  an  altera- 
tion as  to  the  executrix  or  of  a  revocatory  clause 
of  disposition  wholly  inconsistent  with  the  first 
will,  that  will  was  not  revoked,  and  was  there- 
fore entitled  to  probate.  Quaere,  whether  the 
memorandum  was  admissible  in  evidence  to  show 
an  intention  to  revoke  the  first  will.  Hellier  v. 
Eellier,  9  P.  D.  237  ;  53  L.  J.,  P.  105 ;  33  W.  R. 
324  ;  49  J.  P.  8— Butt,  J. 

Will  by  Wife  during  Coverture.] — A  mar- 
ried woman,  having  in  a  settlement  a  special  power 
of  appointment  by  will  over  real  estate,  executed 
a  will  during  coverture  in  1866  appointing  the 
same.  After  the  death  of  her  husband  she  made 
three  other  wills.  In  the  first  and  second  she 
said:  "I  revoke  all  other  wills,"  and  in  the 
third :  "  I  .  .  .  hereby  revoke  all  wills,  codicils, 
and  other  testamentary  dispositions  heretofore 
made  by  me,  and  declare  this  to  be  my  last  will 
and  testament,"  and  then  disposed  of  all  her 
estate,  "  including  as  well  real  estate  as  personal 
estate  over  which  I  have  or  shall  have  a  general 
power  of  appointment,"  but  she  did  not  in  any 
way  exercise  or  affect  to  exercise  the  power  in 
the  settlement,  nor  did  she  refer  to  it,  or  to  the 
property  the  subject  of  the  power : — Held,  that 
the  testamentary  appointment  of  1866  was 
revoked.  Kingdon,  In  re,  Wilkins  v.  Pryer,  32 
Ch.  D.  604  ;  55  L.  J.,  Ch.  598  ;  54  L.  T.  753 ;  84 
W.  R.  634— Kay,  J. 

Will  by  Codicil- Appointment  in  Will— In- 
valid Appointment  by  Codicil.]— Testator  by 
will,  who  said  his  estate  would  realise  at  least 
10,0002.,  wished  4,000Z.  to  be  invested  on  trust 
for  his  sister,  A  P.,  for  her  life.    At  her  death 


the  principal  might  be  divided  between  her 
husband,  if  surviving,  and  children  as  she  might 
by  will  determine.  After  giving  other  legacies, 
the  testator  bequeathed  the  remainder  to  the 
children  of  J.  F.  A  sum  of  4,0002.  was  invested 
in  Consols  and  transferred  into  court.  A  P.  by 
will  gave  all  the  residue  of  her  property,  includ- 
ing the  sum  of  4,0002.  left  to  her  by  the  testator, 
and  over  which  she  had  a  disposing  power,  to 
her  husband  and  children  in  equal  terms.  One 
son  after  the  date  of  the  will  died,  leaving  two 
children,  and  by  a  codicil  made  afterwards,  A  P. 
bequeathed  the  share  which  would  have  gone  to 
him  in  trust  for  his  children.  On  petition  by  the 
husband  and  surviving  children  for  sale  of  the 
trust  fund  and  payment  of  the  proceeds  to  them : 
— Held,  that  the  invalid  appointment  by  the 
codicil  did  not  operate  as  a  revocation  pro  tanto 
of  the  gift  by  the  will  to  the  class,  and  that  the 
husband  and  surviving  children  were  entitled  to 
the  whole  of  the  fund.  Duguid  v.  Fnuer,  31 
Ch.  D.  449  ;  55  L.  J.,  Ch.  285  ;  54  L.  T.  70 ;  34 
W.  R.  267— Kay,  J. 

Revocation  of  Gifts  "in  favour  of "  Dons* 

of  Power.] — A  testator  by  his  will  gave  to  his 
sister  H.  a  life  interest  in  a  share  of  his  residuary 
estate,  and  a  special  power  of  appointment  by 
will  over  the  capital  of  the  share.  By  a  codicil 
he  revoked  all  devises  and  bequests  whatsoever 
"in  favour  of"  H. :— Held,  that  the  power  was 
revoked  as  well  as  the  life  interest.  JBromgh,  In 
re,  Carrey  v.  Brough,  38  Ch.  D.  456  ;  67  L.  J^. 
Ch.  436  ;  58  L.  T.  788  ;  36  W.  R.  409— Kay,  J. 


Will  to  be  read  as  if  Name  of  Legato* 


omitted.}— A  testatrix  by  her  will  bequeathed 
her  watch  to  her  granddaughter  M.,  and  her 
brooch  to  her  granddaughter  J.;  and,  after 
giving  certain  pecuniary  legacies,  bequeathed  to 
M.  a  legacy  of  200/.  A  codicil  made  by  the 
testatrix  three  years  later,  after  reciting  the 
legacies  of  the  watch  and  brooch,  continued  as 
follows : — "  Now  I  hereby  revoke  and  make  void 
the  said  legacies  and  bequests  in  my  said  wQl 
contained  in  favour  of  the  said  M.  and  J.,  and 
declare  that  my  said  will  shall  be  read  and 
construed  in  all  respects  as  if  the  names  of  the 
said  M.  and  J.  had  not  been  inserted  therein,  and 
in  all  other  respects  I  confirm  my  said  will":— 
Held,  that  the  legacy  of  2002.  was  not  revoked 
by  the  codicil.  PercizdL,  In  re,  Boote  v.  XtettM, 
59  L.  T.  21— C.  A. 

A  testatrix  gave  all  her  personal  estate  to  her 
sisters  Mary,  Sarah,  and  Ann  upon  trust  to 
invest  and  pay  the  income  to  her  said  sisters  in 
equal  shares  during  their  lives,  with  benefit  of 
survivorship,  and  after  the  death  of  the  survivor, 
in  case  any  of  her  nephews  D.  W.  8.  and  R.  0. 6. 
and  her  niece  M.  A  S.  should  be  then  living, 
she  gave  her  personal  estate  to  T.  R.  and  J.  upon 
trust  to  transfer  the  sums  invested  as  aforesaid, 
and  all  interest  unto  the  said  D.  W.  S.,  R.  0.  S* 
and  M.  A.  S.  in  equal  shares  and  proportions ;  and 
if  but  one  of  them  should  be  then  living,  then  the 
whole  of  such  principal  sums,  &c.,  to  be  paid  or 
assigned  to  such  one,  his  or  her  executors,  ad- 
ministrators, and  assigns  absolutely.  Bat  in 
case  of  the  death  of  the  testatrix's  said  nephews 
and  niece,  leaving  either  of  her  said  sisters, 
surviving,  the  testatrix  gave  and  bequeathed  all 
the  said  principal  sums,  &c,  and  all  other  her 
estate  unto  the  survivor  of  her  said  sisters 
absolutely.      The    testatrix    made   a  codicil, 


1997 


WILL— ^Testamentary  InrtrvmenU,  <te. 


1998 


whereby  she  requested  "  all  names  of  T.  B.,  J., 
and  of  D.  W.  S.,  B.  O.  8.,  and  M.  A.  6.,  and  any 
other  of  her  friends  except  her  three  sisters,  to 
be  considered  the  same  as  if  omitted  from  her 
will "  : — Held,  that  the  omission  of  these  names 
did  not  strike  out  the  gift  of  the  capital  to  the 
surviving  sister,  who  took  absolutely.  Stephenson 
v.  Stephenton,  66  L.  T.  76-43.  A.  Affirming  54 
L.  J.,  Ch.  928— Pearson,  J. 

A  testator  bequeathed  his  residuary  estate  upon 
trusts  for  the  benefit  of  his  children,  and  as  to 
the  sons'  shares  he  directed  that  one  moiety 
should  be  held  absolutely,  and  that  the  other 
moiety  should  be  settled.  By  a  codicil  the  tes- 
tator revoked  every  devise  and  bequest  to  or  in 
favour  of  his  son  S.  : — Held,  a  revocation  of  the 
interest  of  the  children  of  S.  in  the  settled 
moiety.  Tabor  v.  Prentice,  or  PrerUice  v.  Tabor, 
52  L.  T.  85 ;  32  W.  R.  872— Kay,  J. 


6.   INCORPORATION  OF  UNATTESTED 

PAPERS. 

Reference  in  Will  to  Papers.] — To  incorporate 
a  document  in  the  probate  of  a  will,  three  things 
are  necessary— (1)  that  the  will  should  refer  to 
the  document  as  then  in  existence ;  (2)  proof 
that  the  document  propounded  was  in  fact 
written  before  the  will  was  made ;  and  (3")  proof 
of  the  identity  of  such  document  with  that 
referred  to  in  the  will.  A  testator  bequeathed 
all  property  he  died  possessed  of  to  his  executors, 
to  be  disposed  of  in  charity  in  such  manner  as 
M 1  may  direct  them  ;  and  in  case  I  may  not 
leave  directions  or  instructions,  then  they  may 
dispose  of  it  in  such  manner  as  they  may  think 
fit/*  The  testator  signed  a  paper,  bearing  the 
same  date  as  the  will,  and  in  his  own  hand- 
writing, containing  directions  for  the  manage- 
ment of  his  property  for  charitable  purposes, 
and  headed  "  Directions  to  the  executors  of  my 
last  will,  executed  the  13th  February,  1879,  how 
they  are  to  manage  my  affairs : " — Held,  that 
the  will  did  not  sufficiently  describe  the  paper 
of  directions  as  then  existing,  and  that  parol 
evidence  was  not  admissible  to  identify  it  as  the 
document  referred  to  in  the  will.  The  court, 
therefore,  refused  to  incorporate  the  directions 
with  the  probate.  Kehoe,  In  Good*  of,  13  L.  R., 
Ir.  13— Prob. 

A  testatrix,  the  day  before  undergoing  an 
operation  which  ended  fatally,  wrote  two  letters ; 
the  first,  which  was  addressed  to  a  personal 
friend,  gave  directions  as  to  certain  articles  of 
plate  to  which  the  testatrix  had  affixed  the 
names  of  various  donees,  and  the  second  to  her 
executor.  In  this  letter,  which  was  duly 
attested  as  a  codicil,  she  mentioned  having 
written  the  first  letter : — Held,  that  the  second 
letter,  which  constituted  a  valid  codicil,  incor- 

S mated  the  first  letter  and  that  the  first  letter 
corporated  the  papers  therein  referred  to. 
Svmes  v.  Appelbe,  57  L.  T.  699 ;  51  J.  P.  682— 
Hansen,  P. 


6.    CONDITIONAL  AND  CONTINGENT. 

A1  testator  made  his  will  a&  follows : — "As  I 
am  about  to  leave  home  for  Bangor,  should  any 
accident,  &c.,  take  me  out  of  this  world,  I  will 


amount  of  60Z.  at  her  selection,"  for  her  sole  and 
separate  use.  "The  remainder  of  all  I  am 
possessed  of,  or  may  be  entitled  to  possess,  I 
leave  to  my  daughter  S.  C,  for  her  sole  and 
separate  use,  fee. ;  and  should,  in  God's  inscrut- 
able providence,  anything  take  her  and  her  son 
away  from  this  world  before  I  again  make  my 
will — S.  C.  and  her  son — I  will  everything  I 
may  be  possessed  of  to  E.  M'D.,  of,  &c.,  for  her 
sole  and  separate  use,"  &c.  The  testator  went 
to  Bangor  the  same  day,  and  returned  home  in  a 
week  without  meeting  with  any  accident,  and  did 
not  again  leave  Ireland,  or  make  any  other  will, 
until  his  death — more  than  six  years  afterwards : 
— Held,  that  the  will  was  not  conditional  or 
contingent  on  any  accident  to  him  during  his 
projected  journey  to  Bangor.  Principles  of 
construction  in  determining  whether  a  will  is 
conditional  or  absolute.  Stuart,  In  Ooodt  of, 
21  L.  R.,  Ir.  105— Prob. 


7.    ALTERATIONS,  ADDITIONS  AND 
OMISSIONS. 

Alteration— Duty  of  Court.]— A  testatrix  duly 
executed  a  holograph  will,  which  after  her 
decease  was  found  with  the  word  "  one  "  written 
in  the  place  of  another  word.  There  was  no 
evidence  to  show  when  the  alteration  was  made. 
The  original  word  was  quite  illegible  :— Held, 
that  it  was  the  duty  of  the  court  to  decide  what 
the  obliterated  word  was,  if,  from  the  evidence, 
it  was  able  to  do  so  with  "  reasonable  certainty," 
and  in  that  event  to  admit  the  will  to  probate 
with  the  word  so  decided  upon  in  place  of  the 
word  substituted  for  it  by  the  testatrix.  Jeffery 
v.  Cancer  Hospital,  57  L.  T.  600 ;  61  J.  P.  603— 
Butt,  J. 


Interlineation— Definition  ot] — The  definition 
of  the  word  "  interlineation  w  in  the  Wills  Act 
is  not  to  be  confined  to  something  written 
between  the  lines.  Something  put  into  one  of 
the  lines,  but  written  on  the  line,  is  equally  an 
"  interlineation  "  within  the  meaning  of  the  act. 
Bagshawe  v.  Canning,  52  J.  P.  583 — Hannen,  P. 

Mistake  in  Copying— Will  altered  to  corre- 
spond with  Draft.] — A  testator  in  the  draft  of 
his  will,  which  was  duly  executed  and  read  over 
to  him  before  execution,  bequeathed  a  legacy  to 
the  Bristol  Royal  Infirmary.  In  the  will,  which 
was  not  read  over  to  him,  the  bequest  by  a 
mistake  in  the  engrossment  was  to  the  British 
Royal  Infirmary.  The  Court,  subject  to  an 
affidavit  that  there  was  no  such  institution  as  the 
British  Royal  Infirmary,  granted  probate  of  the 
will,  with  the  word  "  Bristol "  substituted  for 
"  British."  BusheU,  In  Goods  of,  13  P.  D.  7 ;  67 
L.  J.,  P.  16:  58  L.  T.  58  j  36  W.R.528  ;  61  J.P. 
806—  Butt,  J. 


8.    LOST  WILLS. 

Eyidenee  of  Contents— Parol  Evidenoe— De- 
claration by  Testator.]— If  a  lost  will  is  pro- 
pounded for  probate  upon  parol  evidence  alone, 
with  evidence  of  a  residuary  bequest)  but  no 
sufficient  evidence  as  to  the  rest  of  the  will  :— 
I  Quaere,  whether  probate  ought  to  be  granted  of 


to  ILM'IXjOf,  6&,  2QQL  and  also  furniture  to  the  |  the  residuary  bequest  alone,  unless  the  court  is 


1999        WILL— Donatio  Mortis  Causa— Execution  and  Attestation.      2000 


satisfied  that  it  has  before  it  substantially  the 
testamentary  intentions  of  the  testator.  Quaere, 
also,  whether  post-testamentary  declarations  of 
the  testator  as  to  the  contents  are  admissible  in 
evidence.  Sugden  v.  Lord  St.  Leonards  (1  P.  D. 
154)  commented  on.  Woodward  v.  QouUtone, 
11  App.  Cas.  469 ;  56  L.  J.,  P.  1 ;  55  L.  T.  790  ; 
35  W.  B.  337  ;  51  J.  P.  307— H.  L.  (B.). 

Advertisement] —  Before  applying  for  pro- 
bate of  a  lost  will,  an  advertisement  should  be 
published  offering  a  reward  for  production  of  the 
will.  Callaghan,  In  Goods  of,  13  L.  B.,  Ir.  245 
— Prob. 


III.  DOHATIO  M0BTI8   CAUSA. 

Banker's  Deposit  Beceipt.]— A  deposit  receipt 
in  the  ordinary  form  used  by  banks  may  be  the 
subject  of  a  donatio  mortis  causa ;  and  this  is 
so,  although  the  receipt  is  expressed  to  be  not 
transferable.  Cassidy  v.  Belfast  Banking  Com- 
pany, 22  L.  B.,  Ir.  68— Ex.  D. 

Uncorroborated  Evidence  of  Donee.] — A 

gift  by  a  dying  man  of  a  banker's  deposit  receipt 
under  such  circumstances  as  to  constitute  it  a 
good  donatio  mortis  causa  will  be  upheld,  even 
though  the  only  evidence  in  support  of  the 
claim  be  that  of  the  donee,  if  the  court  con- 
siders the  evidence  trustworthy.  Farman,  In  re, 
Farman  v.  Smith,  57  L.  J.,  Ch.  637  ;  58  L.  T.  12 
— North,  J. 

Deposit-Vote — Besumption  of  Possession.] — 
G.  T.  in  his  last  illness  showed  a  deposit-note  to 
his  daughter  the  plaintiff,  and  told  her  in  effect 
that  it  was  to  belong  to  her  in  the  event  of  his 
death.  The  plaintiff  took  the  note,  and  by  her 
father's  "directions  placed  it  for  safe  custody  in 
a  cash-box  which  was  kept  in  her  father's  bed- 
room, but  of  which  she  had  the  key,  and  to 
which  she  had  resort  for  household  purposes  : — 
Held,  that  this  was  a  good  donatio  mortis  causa. 
Taylor,  In  re,  Taylor  v.  Taylor,  56  L.  J.,  Ch. 
697— Stirling,  J. 

Gift  of  Insurance  Money.] — A.,  having  made 
his  will  in  1880,  by  which  he  gave  the  income  of 
his  property  to  his  wife  B.,  fell  ill  in  1887,  and, 
being  in  anticipation  of  death,  signed  the  follow- 
ing document : — "  1887,  March  1. — I  give  all 
my  insurance  money  that  is  coming  to  me  to  my 
wife  B.  for  her  own  use,  as  well  as  2001.  in  the 
bank.  This  is  my  wish. — A.,  witness,  C."  This 
document  was,  at  A.'s  request,  placed  with  his 
will,  and  remained  there  till  his  death  in  April, 
1887.  Evidence  having  been  admitted  as  to  the 
circumstances  attending  the  execution  of  the 
document : — Held,  that  effect  could  not  be  given 
to  the  document  as  a  donatio  mortis  causa. 
Hughes,  In  re,  59  L.  T.  686 ;  36  W.  B.  821— 
C.A. 

Cheque  payable  to  Donor  or  Order.]  — A 
cheque  payable  to  the  donor  or  order,  and, 
without  having  been  indorsed  by  him,  given  by 
the  donor  during  his  last  illness  to  his  son, 
stands  on  the  same  footing  as  a  promissory  note 
or  bill  of  exchange  payable  to  the  donor  or  order, 
and  will  pass  to  the  son  by  way  of  donatio 


mortis  causa.  Veal  v.  Veal  (27  Beav.  303) 
followed.  Clement  v.  Ckeeseman,  27  Ch.  D, 
631  ;  64  L.  J.,  Ch.  158 ;  33  W.  B.  40- 
Chitty,  J. 


Bebutting  by  Parol  Evidence.]— Where 

a  will  appeared  on  the  face  of  it  to  have  been 
duly  executed  as  prescribed  by  the  Wills  Act, 
and  the  attestation  clause  was  in  full  accord- 
ance with  ss.  9  and  10  of  the  statute,  the  court, 
nevertheless,  gave  effect  to  the  parol  evidence  of 
the  attesting  witnesses,  varying  the  terms  of  the 
attestation  clause  they  had  subscribed  tor- 
Held,  that  the  presumption  of  law,  Omnia  pne- 
sumuntur  rite  et  solenniter  esse  acta,  was 
rebutted  by  their  evidence,  and  that  the  will 
had  not  been  duly  executed,  and  that  it  could 
not  be  admitted  to  probate.  Glover  v.  Smith, 
57  L.  T.  60 ;  60  J.  P.  466— Butt,  J. 

In  1878  the  testator,  who  was  a  good  man  of 
business,  but  not  a  lawyer,  wrote  a  holograph 
codicil  upon  the  same  paper  as  a  will  which  be 
had  made  in  1868,  and  wrote  at  the  end  of  it  an 
attestation  clause  adapting  that  at  the  end  of 
the  will  to  the  case  of  a  codicil.    He  called  the 
nurse  into  the  schoolroom,  and  asked  her  and 
the  nursery  governess  to  "sign    this  paper." 
There  was  evidence  that  he  took  his  own  pen 
into  the  room.    Both  witnesses  signed.    At  the 
trial,  which  took  place  between  four  and  five 
years  afterwards,  the  codicil  was  produced  bear- 
ing the  testator's  signature,  and  both  the  attest- 
ing witnesses  were  examined.    The  governess 
deposed  that  she  had  designedly  abstained  from 
looking  at  any  of  the  writing  on  the  paper,  and 
the  nurse,  it  appeared,  had  been  very  nervous. 
Neither  of  them  could  say  anything  as  to  what 
writing  was  on  the  paper,  nor  as  to  whether  the 
testator's  signature  was  there  when  they  signed, 
and  both  said  that  they  did  not  see  him  sign. 
The  President  pronounced  for  the  validity  of  the 


IV.  EXECUTION  AHD   ATTESTATION 
1.    GENERALLY. 

Presumption  of  due  Execution.]— The  cases 
which  have  been  decided  in  reference  to  the 
presumption  of  due  execution  of  wills  apply  as 
well  where  the  alleged  testator's  signature  has 
been  affixed  by  his  direction  as  where  he  has 
himself  actually  written  his  name.  Clery  v. 
Barry,  21  L.  B.,  Ir.  152— C.  A. 


Holograph  Codicil— Attesting  Witnesses 

unable  to  recollect  the  Execution.] — A  testator 
left  a  codicil  entirely  in  his  own  nand writing, 
written  on  the  third  side  of  the  sheet  of  fools- 
cap, the  first  side  of  which  contained  his  will 
There  was  an  attestation  clause  in  proper  form, 
and  the  testator  had  signed  his  name  at  the  foot 
of  the  codicil,  but  there  being  no  more  space  on 
the  sheet,  the  names  of  the  attesting  witnesses 
appeared  at  the  bottom  of  the  second  page, 
opposite  the  attestation  clause.  The  attesting 
witnesses  acknowledged  their  signatures,  but  had 
no  recollection  of  having  signed  the  paper,  nor 
of  ever  having  seen  it  before : — Held,  that  the 
codicil  was  duly  executed.  Woodhouse  v.  BcJU 
four,  13  P.  D.  2  ;  57  L.  J.,  P.  22  ;  58  L.  T.  59 ; 
36  W.  B.  368  ;  52  J.  P.  7— Hannen,  P. 


r 


2001 


WILL — Execution  and  Attestation. 


2002 


codicil :— Held,  by  Earl  Selborne,  L.  C,  that  the 
reasonable  conclusion  was  that  the  codicil  was 
signed  by  the  testator  in  the  presence  of  the 
witnesses.  Wright  v.  Sanderson,  Sanderson,  In 
n,  9  P.  D.  149  ;  63  L.  J.f  P.  49  ;  50  L.  T.  769  ; 
32  W.  R.  560  ;  48  J.  P.  180— C.  A. 

Held,  by  Cotton,  LJM  that  on  the  evidence 
he  should  have  come  to  the  contrary  conclusion, 
but  that  the  finding  of  the  President,  who  had 
seen  and  heard  the  witnesses,  ought  not  to  be 
reversed.    lb. 

Held,  by  Fry,  L.J.,  that  as  the  codicil  ex 
facie  appeared  to  be  properly  executed,  and  the 
presumption  omnia  rite  esse  acta  was  strengthened 
by  the  conduct  of  the  testator,  which  showed  an 
anxious  and  intelligent  desire  to  do  everything 
regularly,  that  presumption  was  not  rebutted  by 
the  evidence  of  the  witnesses,  who  appeared  to 
have  been  nervous  and  confused  on  the  occasion 
of  the  attestation,  and  whose  recollection  of  what 
took  place  was  evidently  imperfect.    lb. 

Codicil  executed   on  Margin  of  Will— Foot 
or  End.] — A  testator  duly  executed  a  will  pre- 
pared by  a  solicitor  which  was  written  on  the 
first  side  of  a  sheet  of  foolscap  paper.      Desiring 
shortly  before  his  death  to  make  an  alteration  in 
the  disposition  of  his  property  he  called  in  the 
assistance  of  a  neighbour,  who  wrote  out  a  codicil 
on  the  third  sheet  of  the  foolscap,  beginning, 
"The  following    alterations  having  been  first 
made  "  and  ending  with  an  attestation  clause  in 
due  form.    The  mark  of  the  testator,  however, 
and  the  signatures  of  the  attesting  witnesses, 
were  written  opposite  the  body  of  the  will  on 
the  margin  of  the  first  page,  the  person  who 
prepared  the  codicil  being  under  the  impression 
that  as  it  was  an  alteration  in  the  will  it  ought 
to  be  attested  on  the  margin  : — Held,  that  the 
codicil  was  not   duly  executed,   and    probate 
refused.    Hughes,  In  Goods  of,  12  P.  D.  107  ;  56 
L.  J.,  P.  71  ;   57  L.  T.  495 ;  35  W.   R.  568— 
Hannen,  P. 

Hark—Foot  or  End.]— A  testator  two  days 
before  his  death,  being  paralysed  on  one  side  and 
partly  speechless,  intimated  to  the  two  medical 
men  in  attendance  on  him  his  desire  to  make  a 
will.  They  interpreted  his  wishes  by  signs  and 
wrote  them  down  on  a  card.  He  executed  the 
document  by  making  his  mark,  which  however 
appeared  in  the  middle  of  the  writing,  and  they 
then  put  their  initials  as  witnesses  at  the  back  : 
— Held,  that  the  card  constituted  a  valid  testa- 
mentary paper  duly  witnessed,  expressing  the 
intentions  of  the  deceased  ;  but  that  it  was  not 
signed  at  the  "  foot  or  end  "  within  the  meaning 
of  the  statute,  and  was  therefore  not  duly 
executed  and  not  entitled  to  probate.  Margary 
v.  Robinson,  12  P.  D.  8  ;  56  L.  J.,  P.  42  ;  57  L. 
T.  281 ;  35  W.  R.  350  ;  51  J.  P.  407— Hannen,  P. 

Acknowledgment  of  Testator's  Signature.] — 
A  testatrix  exhibited  a  codicil  to  her  last  will, 
which  was  entirely  in  her  own  handwriting,  to 
one  of  the  attesting  witnesses,  telling  her  she 
had  something  which  required  two  witnesses. 
Subsequently,  the  second  attesting  witness  hav- 
ing come  into  the  room,  was  asked,  either  by  the 
testatrix  or  by  the  other  attesting  witness  in  her 
presence,  to  sign  it,  and  they  both  signed,  but 
the  testatrix  did  not  tell  them  that  it  was  a 
testamentary  paper,  nor  did  they  know  what  sort  of 
paper  it  was  that  they  had  attested.    They  did 


not  recollect  seeing  the  testatrix  sign,  but  one 
of  them  was  clear  that  her  signature  was  there  at 
the  time  they  signed  : — Held,  that  this  was  a 
sufficient  acknowledgment  by  the  testatrix  of 
her  signature,  and  that  the  codicil  was  entitled 
to  probate.  Daintree  v.  Fasulo,  13  P.  D.  102  ; 
57  L.  J.,  P.  76  ;  58  L.  T.  661— C.  A.  Affirming 
52  J.  P.  87— Butt,  J. 

Attestation — Sufficiency  ol]— Where  a  witness 
in  fact  attested  a  testator's  signature,  but  the 
form  of  attestation  described  him  as  only  attest- 
ing the  signatures  of  two  other  witnesses  (the 
attestation  of  one  of  whom  was  irregular),  pro- 
bate of  the  will  was  granted.  Mason  v.  Bishop, 
1  C.  &  B.  21— Williams,  J. 

A.,  having  made  his  will  in  1880,  by  which  he 
gave  the  income  of  his  property  to  his  wife  B., 
fell  ill  in  1887,  and,  being  in  anticipation  of 
death,  signed  the  following  document : — "  1887, 
March  1. — 1  give  all  my  insurance  money  that 
is  coming  to  me  to  my  wife  B.  for  her  own  use, 
as  well  as  200/.  in  the  bank.  This  is  my  wish. — 
A.,  witness,  C."  This  document  was,  at  A.'s 
request,  placed  with  his  will,  and  remained  there 
till  his  death  in  April,  1887.  Evidence  having 
been  admitted  as  to  the  circumstances  attending 
the  execution  of  the  document : — Held,  that  it 
was  intended  as  a  testamentary  instrument,  and, 
not  having  been  properly  attested  according  to 
the  Wills  Act,  could  not  take  effect  as  a  will. 
Hughes,  In  re,  59  L.  T.  586  ;  36  W.  R.  821— C.  A. 

Printed    Form — Attestation    on    first 

Page — Second  Page  excluded.] — A  will  was 
written  on  a  printed  form  by  a  testator's 
directions,  and  was  contained  partly  on  a  first 
page  and  partly  on  a  second.  The  attestation 
was  at  the  bottom  of  the  first  page,  and  there 
was  no  attestation  on  the  second  page.  The 
court  excluded  the  second  page  from  probate. 
Birt,  In  Goods  of  (2L.  R.,  P.  214),  distinguished. 
Malen,  In  Goods  of  54  L.  J.,  P.  91 ;  33  W.  R. 
826  ;  50  J.  P.  262— Butt,  J. 


Witness  Signing  Husband's  Fame.]— A 


will  was  signed  by  the  deceased  in  the  presence 
of  two  persons,  one  of  whom  subscribed  it  with 
his  own  name  and  the  other  with  the  name  of 
her  husband  : — Held,  that  the  will  was  not 
properly  attested.  Lever ington,  In  Goods  of,  11 
P.  D.  80  ;  55  L.  J.,  P.  62— Butt,  J. 


Evidenoe— Attesting  Witness  not  to  be 


found — Affidavit] — In  a  suit  for  revocation  of 
probate  on  the  grounds  of  undue  execution,  and 
incapacity,  where  it  appeared  that  every  effort 
had  been  made  to  find  one  of  the  attesting 
witnesses,  but  without  success — the  court  allowed 
the  affidavit  made  by  him  eight  years  before,  at 
the  time  of  proving  the  will  at  the  district 
registry,  to  be  admitted  as  evidence  of  execution 
and  capacity.  Gornall  v.  Mason,  12  P.  D.  142  ; 
56  L.  J.,  P.  86  ;  57  L.  T.  601 ;  35  W.  R.  672  ;  51 
J.  P.  66*— Butt,  J. 


2.  ATTESTATION  BY  PARTIES 
INTERESTED. 

Solicitor— Professional  Charges.]— A  declara 
tion  in  a  will  that  a  solicitor,  who  is  an  executor 
trustee  of  the  will,  may  charge  profit  costs  for 


2003 


WILL — Revocation. 


20M 


work  done  for  the  testator's  estate,  confers  a 
beneficial  gift  or  interest  on  him,  within  s.  15  of 
the  Wills  Act,  1837,  and  is  therefore  void  where 
the  solicitor  trustee  has  been  one  of  the  attesting 
witnesses  of  the  will.  Pooley,  In,  re,  40  Ch.  D. 
1 ;  68  L.  J.,  Ch.  1 ;  60  L.  T.  73 ;  87  W.  R.  17— 
0.  A. 

Insolvent  Estate.] — A.,  being  entitled  to 

a  life  interest  in  a  fund  over  which  she  had  a 
testamentary  power  of  appointment,  borrowed, 
in  1871,  from  B.,  3507.  on  the  security  of  a 
covenant  that  1,250?.  should  be  paid  one  month 
after  her  death.  She  died  in  1884,  having  by 
her  will  appointed  executors,  and  directed  pay- 
ment of  her  debts,  and  also  that  C. ,  one  of  her 
executors  (a  solicitor),  should  be  entitled  to 
charge  and  receive  payment  for  all  professional 
business  to  be  done  by  him  under  the  will.  C. 
was  one  of  the  attesting  witnesses.  In  an  ad- 
ministration action  by  B.  on  behalf  of  himself 
and  all  other  creditors,  the  estate  being  in- 
solvent : — Held,  that  C,  as  an  attesting  witness, 
was  prohibited  by  the  Wills  Act,  s.  15,  from 
receiving  that  which  was  not  a  debt  of  which 
payment  could  be  enforced  at  law,  but  a  bene- 
ficial gift,  which  could  only  be  claimed  by  virtue 
of  the  direction  in  the  will ;  and  (semble)  that 
even  if  he  had  not  attested  the  will,  the  direction 
authorising  him  to  charge  for  his  professional 
services  operated  by  way  of  bounty  only,  and, 
the  estate  being  insolvent,  could  not  take  effect 
as  against  the  creditors.  Barber \  In  re,  Burgess 
v.  Vinnicome,  31  Ch.  D.  665  ;  55  L.  J.,  Ch.  373  ; 
54  L.  T.  875  ;  34  W.  B.  395— Chitty,  J. 

Of  Will  and  Codioils— Bequest  under  Will.]— 
A  testator  by  his  will  gave  bequests  to  his 
employes  ;  one  of  the  employes  had  attested  the 
will  and  also  two  codicils  that  confirmed  the 
will ;  another  employe  had  attested  the  codicils 
but  not  the  will: — Held,  that  the  former 
employe  could  not  take  the  gift,  but  that  the 
latter  was  not  incapacitated  from  taking  under 
the  will.  Marcus,  In  re,  Marcus  v.  Marcus, 
57  L.  T.  399— North,  J. 

Acceleration  of  Interests.] — A  testator  devised 
and  bequeathed  all  his  real  and  personal  estate 
to  his  wife  for  life,  and  after  her  death  to  be 
equally  divided  between  such  of  his  children  as 
should  be  living  at  her  death ;  and  in  case  of 
any  of  the  above-mentioned  children  dying 
before  his  wife  leaving  children,  such  children 
were  to  take  their  parent's  share.  And  in  the 
event  of  any  of  his  daughters  being  married  at 
his  wife's  decease,  it  was  his  will  that  such 
proportion  as  they  might  be  entitled  to  should 
be  left  to  them  and  their  children  exclusively, 
and  should  in  no  way  be  controlled  by  their 
husbands.  At  the  death  of  the  testator's  widow 
one  of  his  daughters  was  living  who  had  several 
children.  Her  husband  was  an  attesting  witness 
to  the  will,  and  consequently  the  gift  to  her  was 
void  under  s.  15  of  the  Wills  Act : — Held,  that, 
the  daughter's  children  were  not  to  be  dis- 
appointed by  her  disability,  but  took  an  imme- 
diate interest  in  her  share  as  tenants  in  common. 
Clark,  In  re,  Clark  v.  Randall,  31  Ch.  D.  72 ; 
65  L.  J.,  Ch.  89  ;  53  L.  T.  691 ;  34  W.  B.  70— 
V.-C.  B. 

Gift  by  will  of  real  and  personal  estate  upon 
trust  to  convert  and  pay  the  income  of  the  pro- 
ceeds to  A.  for  life,  and  after  A.'s  death  to  pay 


the  capital  and  income  thereof  unto  the  child  or 
children  of  A.  in  equal  shares,  with  gifts  over  in 
case  A.  should  die  without  leaving  issue  living 
at  his  death.    The  will  had  been  attested  by 
A.*s  wife,  so  that  the  gift  of  a  life  interest  to 
him  was  void  under  Is.  15  of  the  Wills  Act 
There  were  no  children  of  A.'s  marriage.   The 
personal  estate  was  exhausted  and  the  trust 
funds  represented  real  estate  only :— Held,  that 
until  A.  had  a  child  the  gifts  upon  the  determi- 
nation of  A.'s  life  estate  could  not  be  accelerated, 
and  that  during  the  life  of  A.  and  so  long  as  he 
had  no  children,  the  income  of  the  trust  funds 
was  undisposed  of,  and  belonged  to  the  heir-at- 
law,  and  could  not  be  accumulated  for  the  benefit 
of  the  persons  contingently  entitled  in  remainder. 
Jull  v.  Jacobs  (3   Ch.  D.  703)  distinguished, 
Hodgson  v.  Earl  of  Bectire  (1  H.  &  M.  376),  and 
Bumble,    In  re   (23  Ch.    D.   360),  explained. 
Totcnsend,  In  re,  Townsend  v.  Totcnsend,  34  du 
D.  867  ;  56  L.  J.,  Ch.  227  ;  55  L.  T.  674 ;  85  W. 
B.  153— Chitty,  J. 


V.    REVOCATION. 

Presumption— Duplicates— One  in  Testatrix's 
Possession  Missing-] — Where  a  will  has  been 
executed  in  duplicate,  one  only  being  retained 
by  the  testatrix,  and  such  duplicate  is  not  forth- 
coming after  her  decease,  tne  presumption  of 
law  is  that  she  destroyed  it  ammo  revocandi. 
The  court,  while  doubting  whether  this  pie- 
sumption  must  necessarily  arise  on  the  hue  tact 
of  one  of  the  duplicates  having  disappeared, 
and  while  suggesting  that  a  stronger  presump- 
tion was  necessary  in  cases  where  a  duplicate 
will  was  known  to  a  testator  or  testatrix  to  be 
in  existence,  nevertheless  felt  bound  by  the 
authority  of  an  unreported  case  of  Irnvmsm  t. 
Chambers,  and  held,  that  the  presomptian  of 
law  must  be  upheld,  that  the  will  was  duly 
revoked,  and  that  the  testatrix  died  intestate. 
Jones  v.  Harding,  68  L.  T.  60 ;  52  J.  P.  71- 
Butt,  J. 

Codicil— Ho  Will.]—  See  Gardiner  J. 


Courthope,  ante,  col.  1994. 

Substitution— Two  Wills.]— A  testatrix,  baring 
made  a  formal  will,  subsequently  executed  » 
holograph  will,  which  did  not  contain  residuary 
or  revocation  clauses,  nor  any  powers  for  the 
administration  of  the  estate,  such  as  the  fiirt 
will  did  .-—Held,  that,  as  the  second  will  disposed 
of  all  the  property  of  the  testatrix,  it  was  to  be 
taken  to  be  m  substitution  for,  and  must  be 
admitted  to  probate  in  exclusion  of  the  fast 
will.  Tumour,  In  Goods  of,  56  L.  T.  671 :  » 
J.  P.  344— Hannen,  P.  See  also  ante,  cols.  1»4- 
1997. 

Destruction— -Incorporated  Document— Tarts- 
mentary  Intention.] — Because  part  of  the  will 
of  a  testator  fails  by  reason  of  some  legal  objec- 
tion to  it,  it  is  not,  therefore,  to  be  regarded js 
struck  out  of  the  will  for  all  purposes.  Although, 
so  far  as  the  law  intervenes,  a  clause  may  be 
inoperative,  it  may  still  be  read  with  a  view  to 
ascertaining  the  general  testamentary  intention. 
A  testator,  who  died  in  May,  1886,  by  his  will, 
dated  in  Dec.  1871,  disposed  of  all  his  property 
in  favour  of  his  children,  and  declared  that 
whereas  he  had  advanced,  ox  might  advanes,  for 


8006 


WILL — Revocation. 


2006 


the  benefit  of  his  children,  certain  sums  towards 
their  advancement  in  life  or  for  their  benefit, 
and  all  which  Bums  respectively  would  appear 
and  be  mentioned  in  a  book  marked  "  A,  and 
signed  by  him,  every-  sum  of  money  appearing 
or  mentioned  in  such  book  to  have  been  so 
advanced  or  paid  on  account  of  any  child  should 
be  taken  in  or  towards  satisfaction  of  such  child's 
■hare,  and  brought  into  hotchpot.  In  Jan.  1886 
the  testator  tore  from  the  book  marked  "A" 
several  leaves,  upon  which  entries  of  such  ad- 
vances had  been  written,  and  directed  them  to 
be  burnt  in  his  presence,  and  wrote  on  the  book, 
the  cover  of  which  was  preserved,  a  memorandum, 
stating  that  the  book  had  been  destroyed  by  him. 
It  appeared  that  some  of  the  sums  advanced  had 
been  advanced  before  the  date  of  the  will,  and 
others  subsequently.  An  originating  summons 
was  taken  out  for  the  purpose  of  determining 
the  effect  of  the  above  clause  : — Held,  that  the 
book  would  probably  have  been  admitted  to 
probate  if  it  had  contained  writing ;  and  that  if 
a  document  formed  part  of  a  will  it  was  liable 
to  revocation  in  the  same  manner  as  the  will 
itself  : — Held,  therefore,  that,  as  the  book  had 
been  destroyed  by  the  testator,  no  sum  advanced 
by  him,  whether  before  or  after  the  date  of  the 
will,  could  be  brought  into  hotchpot.  Coyte,  In 
re,  CoyU  v.  Coyte,  56  L.  T.  510-— Chitty,  J. 

Scratching  out  of  Signatures.]— A  will  which 
after  execution  had  remained  in  the  custody  of 
deceased  was  found  in  her  repositories  after  her 
death  with  her  own  signature  and  the  signatures 
of  the  attesting  witnesses  scratched  out  as  with 
a  knife : — Held,  that  there  was  a  revocation 
within  the  requirements  of  s.  20  of  the  Wills 
Act.  Morton,  In  Good*  of,  12  P.  D.  141 ;  56  L. 
J„  P.  96  ;  57  L.  T.  501 ;  35  W.  R.  735  ;  51  J.  P. 
680— Butt,  J. 

A  testator  two  days  before  his  death,  being 
paralysed  on  one  side  and  partly  speechless, 
intimated  to  the  two  medical  men  in  attendance 
on  him  his  desire  to  make  a  will.    They  inter- 

Sreted  his  wishes  by  signs  and  wrote  them 
own  on  a  card.  He  executed  the  document  by 
pnAing  his  mark,  which  however  appeared  in 
the  middle  of  the  writing,  and  they  then  put 
their  initials  as  witnesses  at  the  back.  Subse- 
quently, after  a  conversation  with  one  of  the 
testator's  relatives,  they  returned  to  his  room, 
and  telling  him  that  they  had  taken  on  them- 
selves more  responsibilitv  than  they  ought  to 
have  taken,  and  that  what  they  had  written 
must  be  regarded  as  a  memorandum,  they  erased 
their  initials  at  the  back.  The  testator  seemed 
to  acquiesce  in  this,  but  the  card  was  found 
after  nis  death  in  a  handbag  which  he  kept 
near  his  bed,  and  there  was  evidence  that  he 
had  shown  it  to  the  lady  whom  he  intended  it 
to  benefit,  telling  her  it  was  for  her,  and  wished 
her  to  take  it : — Held,  that  what  passed  at  the 
erasure  of  the  witnesses'  initials  did  not  amount 
to  a  revocation.  MargarvY.  Robinson,  12  P.  D. 
8  ;  56  L.  J„  P.  42  ;  57  L.  T.  281 ;  35  W.  K.  350  ; 
51  J.  P.  407— Hannen,  P. 

KmtuatiLon  —  Eevocation  of  Appointment  of 
Bxeeutors.] — A  testator  by  his  will  appointed 
two  executors,  with  the  usual  directions  as  to 
payment  of  debts,  &c.  He  also  appointed  the 
aanie  persons  trustees,  with  directions  to  pay  the 
income  arising  from  his  property  to  his  wife  and 


his  only  son  in  equal  shares  during  her  life  or 
widowhood,  and  after  her  death  or  remarriage 
the  whole  estate  was  beaueathed  to  the  son 
absolutely.  There  were  also  alternative  trusts 
in  the  case  of  the  son  dying  in  the  wife's  life- 
time, either  unmarried  or  married  leaving  chil- 
dren. After  his  death  the  will  was  found  with 
the  clause  appointing  executors  cut  out  of  it, 
and  there  was  evidence  of  declarations  by  the 
testator  that  he  had  cut  it  out  with  a  pair  of 
scissors,  with  the  intention  of  cutting  out  the 
name  of  one  of  the  executors.  The  wife  died  in 
the  lifetime  of  the  testator,  and  in  the  events 
which  had  happened  at  his  death  the  son  was 
the  only  person  entitled  to  the  estate: — Held, 
that  the  appointment  of  executors  was  revoked 
by  the  mutilation  of  the  will ;  that  the  trustees 
were  not  executors  according  to  the  tenor ;  and 
that  the  son  was  entitled  to  a  grant  of  adminis- 
tration with  the  will  annexed.  Maley,  In  Goods 
of,  12  P.  D.  134  ;  66  L.  J.,  P.  112  ;  57  L.  T.  500  ; 
35  W.  R.  764  ;  51  J.  P.  423— Hannen,  P. 


Burning — Conditional  —  Revival  of  Earlier 
Will.]— The  destruction  of  a  last  will  by  burn- 
ing or  otherwise,  does  not  revive  an  earlier  will ; 
and  therefore  where  a  testatrix  caused  her  last 
will  to  be  destroyed  by  burning  it,  at  the  same 
time  expressing  a  wish  that  the  provisions  of  an 
earlier  will  (which  had  been  in  terms  revoked 
by  a  clause  in  the  said  last  will)  should  there- 
upon again  become  operative : — Held  to  be  only 
a  conditional  revocation  of  the  last  will,  and 
that  as  the  condition  was  inoperative  the  act  of 
destruction  was  nugatory  and  the  last  will  was 
still  valid  and  subsisting  and  was  entitled  to 
probate.  Welch  v.  Gardner,  51  J.  P.  760— 
Hannen,  P. 

Obliteration— "  Writing  Declaring  an  Inten- 
tion to  Revoke."]— -The  testator  had  obliterated 
the  whole  of  a  codicil,  including  his  signature, 
by  thick  black  marks,  and  at  the  foot  of  it  had 
written  the  words,  signed  by  himself  and 
attested  by  two  witnesses : — "  We  are  witnesses 
of  the  erasure  of  the  above  " : — Held,  that  the 
codicil  was  revoked,  for  the  words  above  men- 
tioned were  "  a  writing  declaring  an  intention 
to  revoke  "it  within  s.  20  of  the  Wills  Act. 
Gosling,  In  Goods  of  11  P.  D.  79  ;  55  L.  J.,  P. 
27  ;  34  W.  R.  492  ;  60  J.  P.  26*— Butt,  J. 


VI.    BEFUBUCATIOir. 

Of  Married  Woman's  Will,  when  Discovert.] 
-See  Taylor,  In  re,  ante,  col.  1992. 


VII.    PROBATE    AND    LETTERS    OP 
ADMIHISTEAHOH. 

1.    JURISDICTION. 

Administration,  Letters  of  —  Proceeds  of 
Realty.] — The  proceeds  of  real  property  sold 
under  the  Settled  Estates  Acts,  and  not  yet  con- 
verted into  realty,  have  not  become  personal 
property  in  respect  of  which  letters  of  adminis- 
tration can  be  granted.    Lloyd,  In  Goods  of, 


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2008 


9  P.  D.  65  ;  53  L.  J.,  P.  48  ;  32  W.  R.  724  ;  48  J. 
P.  456— Butt,  J. 

Bomicil  of  Testator.]— &#  International 
Law,  UL 


2.    TO   WHOM    GRANTED. 

a.  Pkobate. 

Executor  according  to  the  Tenor.]— A  testator 
by  his  will  said,  "I  appoint  R.  H.  P.  and  J.  E. 
W.,"  but  did  not  state  in  what  capacity  he 
appointed  them.  He  also  bequeathed  legacies 
to  "each  of  my  executors,"  and  gave  to  his  "said 
executors"  the  residue  of  his  property,  with 
certain  directions  as  to  it.  The  court  held,  upon 
motion,  that  by  the  words  of  the  will  R.  H.  P. 
and  J.  E.  W.  were  appointed  executors,  and 
granted  probate  to  them  accordingly.  Bradley, 
In  Qood*  of  8  P.  D.  215  ;  52  L.  J.,  P.  101 ;  32 
W.  R.  324 ;  47  J.  P.  825— Hannen,  P. 

Trustee.] — Directions  to  get  in  the  estate 

of  the  testator,  and  to  distribute  it  in  a  certain 
manner  after  the  payment  of  all  funeral  and 
other  expenses : — Held,  sufficient  to  constitute  a 
trustee  an  executor  according  to  the  tenor. 
Lush,  In  Goods  of,  13  P.  D.  20 ;  57  L.  J.,  P.  23  ; 
58  L.  T.  684  ;  36  W.  R.  847  ;  52  J.  P.  199— 
Hannen,  P. 

A  testator  bequeathed  all  he  died  possessed  of 
"to  my  two  children,  subject  to  the  following 
limitations  : — I  wish  to  appoint  N.,  K.,  and  C. 
my  trustees  for  the  objects  of  this  my  will, 
everything  I  have  to  be  vested  in  them."  Hie 
will  then  declared  the  trusts  of  the  property  to 
be  so  vested  in  the  trustees.  The  trustees  were 
not  connected  with  the  ascertainment  or  realiza- 
tion of  the  assets,  but  were,  for  the  greater  part, 
connected  with  property  to  be  retained  and 
held  by  the  trustees  for  the  use  of  the  cestui  que 
trusts.  The  will  concluded  by  giving  certain 
directions  as  to  the  testator's  burial  : — Held, 
that  N,,  K.,  and  C.  were  entitled  to  probate  as 
executors  according  to  the  tenor.  A  direction 
to  pay  the  testator's  debts  is  not  indispensable 
to  the  appointment  of  an  executor  according  to 
the  tenor.  McCane,  In  Goods  of,  21  L.  R.,Ir.  1 
— C.  A. 

A  testator  bequeathed  a  part  of  his  household 
furniture  to  his  wife,  and  all  his  personal  pro- 
perty (and  real,  if  any),  consisting  of  books,  &c., 
money  in  bank,  together  with  all  household  fur- 
niture possessed  by  him  before  marriage,  or  pur- 
chased by  him  subsequently,  to  three  trustees, 
upon  trust  as  to  the  said  furniture  for  his  son 
A.  (or  if  he  should  not  be  alive  at  the  testator's 
death,  for  M.),  to  pay  over  to  A.  1000?.,  and  to 
invest  the  remainder  of  the  testator's  money 
upon  other  specified  trusts,  and  he  gave  direc- 
tions as  to  his  funeral  not  addressed  to  the  trus- 
tees : — Held,  that  the  trustees  were  not  executors 
according  to  the  tenor.  Gray,  In  Goods  of  21 
L.  R.,  Ir.  249— C.  A. 

In  a  will  there  was  a  bequest  of  all  property 
to  three  trustees  upon  trust,  first  to  manage  the 
same  as  they  might  think  best  for  those  in- 
terested, but  to  invest  no  part  of  the  same  except 
upon  securities  within  the  United  Kingdom  ; 
secondly  and  thirdly,  to  pay  the  annual  proceeds 
and  capital  of  the  property  on  specified  trusts : 
— Held,  that  the  trustees  were  executors  accord- 


ing to  the  tenor.  Hamilton,  In  Goods  of,  17 
L.  R.,  Ir.  277— Prob. 

Where  the  court  can  gather  from  the  words  of 
a  will  that  a  person  named  therein  is  required 
to  pay  the  debts,  and  generally  to  administer 
the  estate,  it  will  grant  probate  to  such  person, 
as  executor  according  to  the  tenor.  Bluett,  1% 
Goods  of  15  L.  R.,  Ir.  140— Prob. 

See  also  Maley,  In  Goods  of  ante,  col  2006. 


b.  Lettebs  of  Administration. 

JText-of-Kin  —  Persons  equally  entitled  — 
Selection.]  —  In  a  contest  among  next-of-kin 
prima  facie  equally  entitled  to  administer  to  the 
estate  of  a  deceased  relative,  the  choice  of  the 
fittest  person  should  be  made  on  summons  before 
one  of  the  registrars,  according  to  the  practice 
in  the  Probate  Division,  and  parties  improperly 
brought  into  court  on  motion  will  he  entitled  to 
their  costs.  John,  In  Goods  of  68  L.  T.  683 ; 
52  J.  P.  232— Butt,  J. 


Divorced  Wife  not  cited.]— Administra- 


tion of  the  estate  of  a  deceased  intestate  whose 
marriage  had  been  dissolved  by  the  High  Court 
of  Judicature  in  Bombay,  granted  to  his  next- 
of-kin  without  citing  the  divorced  wife.  Naret, 
In  Goods  of  13  P.  D.  35  ;  57  L.  J.,  P.  Wj 
58  L.  T.  529 ;  36  W.  R.  528 ;  62  J.  P.  231- 
Butt,  J. 

Guardian  of  Minor.]— The  next-of-kin  of  i 
minor,  the  universal  legatee,  were  an  uncle  who 
was  abroad,  an  aunt  who  was  in  poor  circum- 
stances, and  another  aunt  who  had  renounced. 
The  court  granted  letters  of  administration  with 
will  annexed  for  the  use  and  benefit  of  the  minor 
to  a  guardian  elected  by  her.  Gardintr,  h 
Goods  of  9  P.  D.  66  ;  53  L.  J.,  P.  31 ;  32  W.  B. 
756  ;  48  J.  P.  456— Hannen,  P. 

Where  upon  an  application  for  administration 
with  the  will  annexed  it  appeared  that  the 
testator's  children  were  minors,  the  court  granted 
administration  to  a  stranger  in  blood  elected  by 
the  children  as  their  testamentary  guardian, 
without  notice  to  the  next-of-kin  entitled  to  the 
grant,  on  proof  that  one  had  renounced  and  that 
the  remainder  were  at  a  distance,  or  that  their 
place  of  residence  was  unknown.  Webb*  J»  Ossis 
of  13  P.  D.  71  ;  57  L.  J.,  P.  36 ;  68  L.  T.  683; 
36  W.  R.  847  ;  52  J.  P.  231— Butt,  J. 

Cum  Testamento  Annexo — Colonial  Gnat- 
Substitution  of  Executors  —  Administrate 
General.]  —  A  testator  domiciled  in  British 
Guiana  by  his  will  appointed  two  executor*-- 
one  resident  in  the  colony,  the  other  in  England 
— with  power  of  substitution  in  the  event  of 
either  or  both  being  unable  or  unwilling  toad- 
The  executor  resident  in  the  colony  admuusrered 
the  estate  on  his  own  behalf  and  on  behalf  of  the 
other  executor  until  he  returned  to  this  country 
to  reside  here  permanently. — By  the  law  of  the 
colony  an  executor  under  such  drcnunstancei 
had  the  right  to  substitute ,  as  executor  the 
Administrator  -  General  of  the  Colony,  ™ 
thereupon  became  possessed  of  all  the  power* 
necessary  for  the  administration  of  the  estate 
This  substitution  had  been  effected  by  the 
executor  before  leaving  the  colony,  and  there 
being  estate  in  this  country  which  required  a 
personal  representative  here,  the  court  made  » 


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grant  of  administration  with  the  will  annexed 
to  persons  nominated  as  his  attorneys  by  the 
Administrator-General  until  such  time  as  the 
Administrator-General  or  the  executor  resident 
in  this  country  who  had  not  renounced  should 
apply,  and  without  requiring  justifying  security. 
Stack,  In  Good*  of,  IS  P.  D.  5 ;  67  L.  J.,  P.  20 ; 
36  W.  R.  400-Butt,  J. 

— Attorney  of  Executor— Death  of  Executor 
—Administration  de  bonis  non.] — A.  obtained  a 
grant  of  administration  with  a  foreign  will 
annexed  as  the  attorney  in  England  of  B.,  the 
executor  of  C,  the  testatrix.  After  B.'s  death  a 
similar  grant  was  made  to  D.  as  the  attorney  in 
England  of  A.'s  executors  : — Held,  that  the  chain 
d  representation  was  not  broken  by  the  grant  of 
administration  to  the  attorney  of  the  original 
testatrix,  and  that  D.  was  entitled  to  deal  with 
the  property  of  C.  in  this  country  without  a 
grant  of  administration  de  bonis  non.  Del 
Carmen  Vea  Murguia,  In  Good*  of,  9  P.  D.  236  ; 
53L.J.,P.  47;  32  W.  B.  799;  48  J.  P.  711— 
Butt,  J. 

—  Interest— Sister  or  Widow.]— In  aeon- 
test  for  administration  with  the  will  annexed  the 
court  preferred  the  sister  of  the  testator  to  the 
widow,  as  it  appeared  that  the  sister,  as  a 
legatee,  had  the  larger  interest  in  the  property 
to  be  distributed.  Iloman,  In  Goods  of  9  P.  D. 
61 ;  52  L.  J.,  P.  94  ;  31  W.  R.  955— Hannen, 
P. 

Be  Bonis    non— Ho  known  Halations.]— An 

intestate  having  died  without  known  relations, 
iiis  estate  was  administered  by  his  widow,  who, 
before  having  completed  the  administration, 
died,  leaving  a  will.  The  court  made  a  grant  de 
bonis  non  to  the  residuary  legatee  of  the  widow, 
the  nominee  of  the  Duchy  of  Lancaster. 
Atard,  In  Goods  of  11  P.  D.  75 ;  56  L.  T.  673 
—Hannen,  P. 

Ho  Residue — Specific  Legatee,  without 

(Station  or  Renunciation  of  Residuary  Legatee.] 
—Upon  an  application  for  a  grant  of  adminis- 
tration de  bonis  non  it  appeared  that  the 
residuary  legatee  resident  abroad  had  had 
notice  by  letter,  and  that  he  had  no  beneficial 
interest,  there  being  actually  no  residue : — Held, 
that  the  grant  might  be  made  to  a  specific 
legatee,  without  requiring  the  residuary  legatee 
to  be  cited,  or  to  renounce.  Wilde,  In  Goods  of 
13  P.  D.  1  ;  57  L.  J.,  P.  7  ;  57  L.  T.  815  ;  36  W.  R. 
400  ;  51J.  P.  776— Hannen,  P. 

Creditor — Insolvent  Estate.  ]— The  assets  being 
insufficient  to  pay  an  intestate's  debts  and  being 
in  the  hands  of  an  executor  de  son  tort,  who  was 
sued  by  the  creditors,  the  court  granted  adminis- 
tration to  one  creditor,  with  the  consent  of  the 
others,  he  undertaking  to  administer  the  assets 
rateable  Willett,  In  Goods  of  21  L.  R.,  Ir.  377 
— Prob" 

Poor  Law  Guardians — Deceased  Pauper 

Lunatic — Expense  of  Maintenance.] — The  de- 
ceased had,  for  over  six  years  prior  to  her 
death,  been  supported  as  a  pauper  lunatic  at  the 
county  lunatic  asylum.  During  the  whole  of  this 
period  she  was,  in  fact,  entitled  to  an  annuity  of 
241.  16*.  Gd.,  payable  by  the  Commissioners  for 
the  Reduction  of  the  National  Debt.    This  fact 


only  came  to  the  knowledge  of  the  guardians  at 
the  time  of  her  death,  or  shortly  thereafter  : — 
Held,  that  the  guardians  were  creditors  of  the 
deceased,  within  the  provisions  of  12  &  13  Vict 
c.  103,  ss.  16, 17,  and,  as  such,  entitled  to  adminis- 
tration of  her  estate.  Lambeth  Guardians  v. 
Bradshaw,  57  L.  T.  86  ;  50  J.  P.  472— Butt,  J. 


To  Nominee  of  Creditor.] — An  intestate 


was  the  holder  of  shares  in  a  company  on  which 
a  call  was  made  after  his  death  : — The  court 
made  a  grant  of  administration  to  the  nominee 
of  the  company  as  a  creditor  of  the  estate  of  the 
deceased.  Tomlinson  v.  Gilby,  54  L.  J.,  P.  80  ; 
33  W.  R.  800  ;  49  J.  P.  632— Butt,  J. 

The  court,  upon  the  application  of  a  creditor 
who  had  obtained  a  grant  of  letters  of  adminis- 
tration with  the  will  annexed  to  the  personal 
estate  and  effects  of  his  deceased  mortgagor, 
being  satisfied  that  there  were  special  circum- 
stances bringing  the  case  within  s.  73  of  the 
Probate  Act,  and  upon  affidavit  that  the  estate 
was  insolvent,  rescinded  such  grant  and  made  a 
fresh  grant  in  favour  of  a  nominee  of  the  credi- 
tor, such  nominee  to  be  approved  by  the  regis- 
trar.  Brown,  In  Goods  of  59  L.  T.  523 — Butt,  J. 

B.,  a  pauper  lunatic  chargeable  to  the  guar- 
dians of  the  Kingston  Union,  died,  a  spinster 
and  without  parents,  leaving  three  brothers  and 
one  sister  her  surviving,  all  of  whom  renounced 
their  right  to  administration.  One  other  brother, 
who  had  gone  to  America  in  1871,  but  who  had 
not  been  heard  of  since  1883,  was  cited  by  ad- 
vertisement, under  order  of  the  court.  The 
court,  upon  the  application  of  the  guardians, 
made  a  grant  of  administration  to  the  clerk  to 
the  board  as  their  nominee.  Byrne,  In  Goods  of 
52  J.  P.  281— Butt,  J. 

Hominee.] — The  court  will,  but  under  special 
circumstances  only,  make  a  grant  of  administra- 
tion to  a  nominee  of  the  parties  interested  in 
the  estate.  Clayton,  In  Goods  of  11  P.  D.  76 ; 
55  L.  J.,  P.  26  ;  34  W.  R.  444  ;  50  J.  P.  263— 
Butt,  J. 


Duchy  of  Lancaster.]  —  Where  an  in- 


testate had  died  leaving  no  known  relatives,  and 
his  estate  had  been  partly  administered  by  his 
widow,  who  died  leaving  a  will,  the  court  made 
a  grant  de  bonis  non  to  the  nominee  of  the 
Duchy  of  Lancaster,  who  was  the  residuary 
legatee  of  the  widow.  Avard,  In  Goods  of  11 
P.  D.  75  ;  56  L.  T.  673— Hannen,  P. 


Of  Creditor.] — See  supra. 


Specific  Legatee  —  Ho  Residue — Citation  of 
Residuary  Legatee.] — A  residuary  legatee  resi- 
dent at  a  known  address  in  Canada,  and  who 
was  in  regular  communication  with  his  relatives 
in  England,  was  informally  asked  to  renounce 
his  right  to  administer  to  his  father's  estate,  but 
made  no  reply  to  the  letters  of  the  solicitors. 
The  estate  was  being  administered  in  chancery, 
and  the  chief  clerk  had  certified  that  the  assets 
were  insufficient  for  payment  of  the  debts  and 
specific  legacies.  The  court  upon  affidavits  of 
these  facts  ordered  a  grant  of  administration  in 
favour  of  one  of  the  specific  legatees.  Wilde, 
In  Goods  of  13  P.  D.  1  ;  57  L.  J.,  P.  7  ;  57  L.  T. 
815  ;  36  W.  R.  400  ;  51  J.  P.  775— Hannen,  P. 


<< 


Special  Circumstances  "—Married  Woman 


2011 


W  ILL— Probate  and  Letters  />f  Administration. 


mi 


— Bankruptcy  of  Husband— Grant  to  Trustee.] 
— A  married  woman  died  intestate,  the  whole 
value  of  her  separate  estate  being  20Z.  Her 
husband  shortly  afterwards  absconded,  and  was 
adjudicated  a  bankrupt : — Held,  that  the  hus- 
band's right  to  administration  did  not  pass  to 
the  trustee  in  his  bankruptcy  under  s.  44  of  the 
Bankruptcy  Act,  1883,  but  that  there  were 
"special  circumstances"  to  justify  a  grant  to 
the  trustee  in  bankruptcy  under  s.  73  of  the 
Probate  Act,  1857,  without  citing  the  husband. 
Turner,  In  Goods  o/t  12  P.  D.  18  ;  56  L.  J.,  P. 
41  ;  57  L.  T.  372  ;  35  W.  R.  384— Butt,  J.  See 
alto  Brown,  In  Goods  of,  supra. 

Attorney  —  limited  Grant — Foreign  Law  — 
Evidence.}— By  the  law  of  Russia  all  testamentary 
instruments  executed  by  members  of  the  Im- 
perial family  are  disregarded,  and  the  disposition 
of  the  property  of  such  persons  after  their  death 
is  within  the  exclusive  power  of  the  Emperor  of 
Russia.  Oldenberg  (Prince'),  In  Goods  of,  9  P. 
D.  234  ;  53  L.  J.,  P.  46 ;  32  W.  R.  724 ;  49  J.  P. 
104— Butt,  J. 

A.,  a  member  of  the  Russian  Imperial  family, 
died  in  Russia,  having  executed  a  will  by  which 
he  appointed  B.,  his  son,  as  his  executor.  After 
A.'s  death  a  meeting  of  the  members  of  his 
family  was  held,  and  an  arrangement  for  the 
disposition  of  his  property  in  accordance  with 
the  terms  of  his  will  was  agreed  to,  and  was 
embodied  in  a  document  termed  an  "  Acte  De- 
finite," which  was  subsequently  confirmed  by 
the  Emperor  of  Russia ;  and  by  the  terms  of 
the  "Acte  Definitif"  B.  was  constituted  the 
sole  and  entire  owner  of  certain  shares  held  by 
the  deceased  in  a  railway  company  having  its 
offices  in  England.  The  court  upon  a  certificate 
from  the  Russian  ambassador  in  England,  with 
the  seal  of  the  Russian  embassy,  reciting  that 
the  law  of  Russia  is  as  stated  above,  and  that, 
under  the  "  Acte  Definitif,"  B.  was  the  sole  and 
entire  owner  of  the  railway  shares,  made  a 
grant  to  the  attorney  of  B.  of  letters  of  ad- 
ministration with  the  "  Acte  Definitif  "  annexed, 
limited  to  the  property  of  the  deceased  in  Eng- 
land,   lb. 


3.  ADMINISTRATION  BOND. 

Reduced  Penalty  —  Reduction  of  Estate- 
Grant  to  Attorney.] — A  widow  died  intestate, 
leaving  seven  infant  children,  and  a  grant  of 
administration  was  made  to  A.,  as  guardian  of 
the  infants,  for  their  use  and  benefit,  till  one  of 
them  should  attain  the  age  of  twenty-one.  A. 
absconded,  after  misappropriating  part  of  the 

Sersonal  estate  of  the  deceased.  One  of  the 
aughters  of  the  deceased,  who  had  attained 
the  age  of  twenty-one  and  was  resident  abroad, 
afterwards  appointed  B.  as  her  attorney  to 
obtain  a  grant  of  administration  in  England  of 
her  mother's  estate,  for  her  use  and  benefit,  till 
she  should  apply  for  a  grant  of  administration. 
The  court  allowed  the  attorney  to  give  an 
administration  bond  for  an  amount  representing 
the  present  value  of  the  estate  of  the  deceased. 
Hatliwell,  In  Goods  of,  10  P.  D.  198  ;  54  L.  J., 
P.  32  ;  33  W.  R.  371  ;  49  J.  P.  233— Hannen,  P. 

Sureties.] — The  court  will  not  by  reason  of 
the  property  being  large  and  the  risk  small, 
dispense  with   sureties   to   an   administration 


bond,  or  lessen  the  amount  to  be  secured.  But 
it  will  allow  the  security  to  be  made  up  of  any 
number  of  bonds,  Earlc,  In  Goods  of,  10  P.  D. 
196  ;  64  L.  J.,  P.  95 ;  34  W.  R.  48 ;  49  J.  P.  761 
—Hannen,  P.  S.  P.,  McGowan,  1%  €hoit  of, 
10  P.  D.  197  j  34  W.  R.  48 ;  49  J.  P.  7«1- 
Hamiffli,  P. 

Assignment  of,  to  Creditor.]— Since  the  Pro- 
bate Act,  1857,  an  unpaid  creditor  of  a  deceased 
intestate  is  entitled  to  an  assignment  of  the 
administration  bond.  A  motion  for  the  assign* 
ment  of  an  administration  bond  should  be  on 
notice,  Harding,  In  Goods  of,  15  L.  B.,  Ir.  166 
— Prob. 


4.  REVOCATION  OF  GRAOT. 

Absconding  Administrator  —  lew  Gnat  to 
Hext  of  Kin.  J — A  grant  of  administration  of  the 
estate  of  an  intestate  was  made  to  a  creditor, 
who,  after  his  debt  had  been  folly  satisfied, 
absconded,  and  could  not  be  found : — A  personal 
representative  of  the  estate  being  required  in  an 
action  in  the  Chancery  Division,  the  coart 
revoked  the  grant  to  the  creditor  without  citing 
him,  and  made  a  new  grant  to  the  sole  next-of- 
kin  of  the  deceased.  Bradshaw,  In  Geodt  (f, 
13  P.  D.  18  ;  67  L.  J.,  P.  12 ;  58  L.  T.  68; 
36  W.  R.  848  ;  62  J.  P.  56— Butt,  J. 

Married  Woman  intermeddling  vita  Estate.] 
— Administration  with  the  will  annexed  was 
granted  to  a  woman  who  intermeddled  with  the 
estate,  and  subsequently  married.  Her  husband 
deserted  her  and  could  not  be  found,  and  an 
application  was  accordingly  made  for  a  revoca- 
tion of  the  grant,  and  a  fresh  grant  to  another 
person  :— Held,  that  the  administratrix  hariitf 
intermeddled  with  the  estate  the  grant  coaM 
not  be  revoked.  Reid,  In  Goods  of,  11  P.  D.  70 ; 
55  L.  J.,  P.  75  ;  64  L.  T.  590 ;  34  W.  R.  577- 
C.  A.    Affirming  50  J.  P.  263— Butt,  J. 

Jurisdiction  of  Chanoery  Diviaion.]--Tboagb 
the  Chancery  Division  may  have  jurisdiction  to 
recall  the  probate  of  a  will,  it  ought  not,  as  a 
general  rule,  to  exercise  that  jurisdiction,  ewn 
if  the  estate  of  the  testator  is  in  court  in  a 
proceeding  in  that  division.  Finney  v.  Snt 
(6  Ch.  D.  98)  followed.  Bradford  v.  r«*. 
26  Ch.  D.  656 ;  54  L.  J.,  Ch.  96 ;  60  L.  T.  707; 
32  W.  R.  901— Pearson,  J. 

Jurisdiction  of  Probate  Division.]  —  Semble. 
the  Probate  Division  has  exclusive  jurisdiction  to 
revoke  probate  of  a  will.  Priestinan  v.  Thmsi, 
9  P.  D.  210 ;  53  L.  J.,  P.  109  ;  51  L.  T.  S4S; 
32  W.  R.  842— C.  A. 

Forgery  — Estoppel.]  —  In  an  action  in  the 
Probate  Division,  T.  and  G.  propounded  an 
earlier  and  P.  a  later  will.  The  aetion  was  com- 
promised, and  by  consent  verdict  and  judgment 
were  taken  establishing  the  earlier  wilL^  Subse- 
quently P.  discovered  that  the  earlier  will  was  a 
forgery,  and  in  an  action  in  the  Chancenr  Divi- 
sion, to  which  T.  and  G.  were  parties,  obtained 
the  verdict  of  a  jury  to  that  effect,  and  a 
decree  that  the  compromise  be  set  aside.  & 
another  action  in  the  Probate  Division  for  revoca- 
tion of  the  probate  of  the  earlier  will :— Held, 


2018 


WILL — Probate  and  Letters  of  Administration. 


2014 


that  T.  and  6.  were  estopped  from  denying  the 
forgery.    lb. 

Effect  of— Sale  of  Leaseholds.]— A  grant  of 
letters  of  administration  obtained  by  suppressing 
a  will  containing  no  appointment  of  executors  is 
not  void  ab  initio,  and  accordingly  a  sale  of  lease- 
holds by  an  administratrix  who  had  obtained  a 
grant  of  administration  under  such  circum- 
stances to  a  purchaser  who  was  ignorant  of  the 
suppression  of  the  will  was  upheld  by  the  court, 
although  the  grant  was  revoked  after  the  sale. 
Abram  v.  Cunningham  (2  Lev.  182)  distinguished. 
Boxall  v.  Boxall,  27  Ch.  D.  220 ;  63  L.  J.,  Ch. 
$38  ;  51  L.  T.  771 ;  32  W.  R.  896— Kay,  J. 


6.  PRACTICE  RELATING  TO. 

Citation — Service  on  Person  of  Unsound  Hind.] 
— Form  of  order  for  service  of  citation  on  a 
person  of  unsound  mind,  not  so  found  by 
inquisition.  M'Cormick  v.  Hey  den,  17  L.  R., 
It.  338— Prob. 

Executor  possessing  himself  of  Assets.] 

— Where  an  executor  possessed  himself  of  part 
of  the  personal  estate  of  the  deceased  without 
obtaining  probate,  and  did  not  appear  to  a 
citation  which  had  been  issued  by  a  legatee  to 
bring  in  and  prove  the  will,  the  court,  on  the 
application  of  the  legatee,  made  a  conditional 
order  that  the  executor  should,  within  a  limited 
time,  extract  probate.  Clune,  In  Goods  of, 
15  L.  R.,  Ir.  470— Prob. 


Widow  interested,  a  Lunatic— Heir-at- 
law  represented'.] — In  a  probate  suit  the  person 
interested  in  establishing  an  intestacy  were  the 
widow  of  the  testator  and  his  brother  the  heir- 
at-law.  The  widow  was  a  lunatic  confined  in 
an  asylum  in  Australia,  and  as  the  heir-at-law 
had  already  appeared  as  a  party  in  the  suit  the 
court  refused  to  order  the  widow  to  be  cited  to 
see  proceedings.  Ward  v.  HucUle,  12  P.  D.  110 ; 
56  L.  J.,  P.  110  ;  57  L.  T.  495  ;  35  W.  R.  736— 
Haiinen,  P. 

Presumption  of  Death— Hotice  to  Insurance 
Company.] — Where  the  estate  of  a  person  whose 
death  the  court  were  asked  to  presume  consisted 
in  part  of  a  policy  of  assurance  on  his  life,  the 
court  ordered  that  notice  of  the  application  should 
be  given  to  the  insurance  company.  Barber, 
In  Goods  of,  11  P.  D.  78  ;  56  L.  T.  894  ;  35  W.  R. 
80 — Butt,  J. 

Amending  Grant— Property  Abroad — Foreign 

Court.] — An  intestate  died  leaving  personal 
estate  to  the  amount  of  273Z.  in  this  country,  and 
6,1  OOZ.  in  the  Italian  rentes.  The  Italian  court 
refused  to  grant  the  authority  required  to  deal 
with  the  property  within  its  jurisdiction,  on  the 
ground  that  the  letters  of  administration  granted 
by  the  Court  of  Probate  here  were  on  the  face  of 
them  limited  to  the  smaller  amount  in  this 
country,  and  that  this  court,  if  it  had  been  made 
aware  of  the  full  value  of  the  estate,  would  have 
required  greater  security  for  its  administration. 
The  court  allowed  the  letters  of  administration 
to  be  amended — the  Board  of  Inland  Revenue 
having  signified  its  consent  to  accept  the  succes- 
sion duty  on  the  Italian  rentes  as  probate  duty — 
.so  as  to  state  on  the  face  of  them  that  the  larger 


sum  was"also  included.  Henley,  In  Goods  of, 
11  P.  D.  126  ;  56  L.  J.,  P.  61  ;  56  L.  T.  895  ;  35 
W.  R.  184  ;  50  J.  P.  520— Hannen,  P. 

Subpoena  to  bring  Scrip  into  Registry — Con- 
tempt of  Court.] — Where  a  writ  of  subpoena  was 
issued  in  a  non-contentious  matter  directing  R., 
a  solicitor,  to  bring  into  the  Probate  Registry  a 
scrip  which  was  stated  to  be,  but  which  was  not 
in  fact,  in  his  possession  or  control : — Held,  that 
his  non-compliance  with  the  subpoena  was  not 
under  the  circumstances  a  contempt;  that  the 
fact  that  he  bad  not  followed  the  practice 
general  in  such  a  case  (and  compulsory  in  a  con- 
tentious matter)  of  filing  an  affidavit  explaining 
the  reason  for  his  non-compliance,  with  which 
practice  he  was  acquainted,  was  not  a  contempt. 
Emmerson,  In  re,  Rawlings  v.  Mnmerson,  57 
L.  J.,  P.  1— C.  A, 

Interrogatories  —  Undue  Influence.]  —  The 
plaintiff  sued  to  recall  probate  on  the  ground 
that  the  testator  was  not  of  sound  mind,  and 
that  the  will  was  obtained  by  the  undue  in- 
fluence of  the  defendants,  two  of  whom  were 
the  executors,  and  the  third  universal  legatee. 
The  plaintiff  delivered  interrogatories  for  the 
examination  of  the  defendants,  asking  what 
sums  they  had  received  from  the  testator  by 
way  of  payment  for  services,  loan,  or  gift,  and 
whether  the  universal  legatee  had  since  the 
death  of  testator  made  over  any  and  what  part 
of  the  property  to  the  other  defendants.  The 
defendants  declined  to  answer  these  interroga- 
tories as  irrelevant : — Held,  that  the  interroga- 
tories must  be  answered,  the  period  in  the  first 
interrogatory  being  limited  to  three  years.  Hol- 
loway.  In  re,  Young  v.  Holloivay,  12  P.  D.  167 ; 
56  L.  J.,  P.  81  ;  57  L.  T.  515— C.  A. 

Particulars — Undue  Influence.  ]— The  defen- 
dant in  a  probate  action  alleged  that  the  will 
had  been  procured  by  the  undue  influence  of  the 
plaintiff  "  and  others."  The  plaintiff  applied 
for  particulars  of  the  names  of  the  persons 
charged  with  undue  influence  and  particulars  of 
the  acts  of  undue  influence  alleged,  and  the  times 
when  and  places  where  each  of  the  acts  was 
alleged  to  have  taken  place.  The  President 
ordered  the  defendant  to  give  the  names  of  the 
persons  charged  with  undue  influence,  but  re- 
fused to  order  him  to  give  particulars  of  the 
acts : — Held,  that  as  it  was  admitted  to  have 
been  the  long-settled  practice  of  the  Probate 
Court,  and  subsequently  of  the  Probate  Division, 
not  to  require  a  party  alleging  undue  influence 
to  give  particulars  of  the  acts  of  undue  influence, 
such  practice  ought  not  now  to  be  disturbed; 
and  semble  (per  Lindley  and  Fry,  L.J  J.),  that 
this  rule  of  practice  was  founded  on  good  reason. 
Salisbury  (Lord)  v.  Nugent,  9  P.  D.  23  ;  53 
L.  J.,  P.  23 ;  50  L.  T.  160  ;  32  W.  R.  221— C.  A. 

Incapacity.] — In  an  action  for  probate 

the  court  will  not  order  particulars  to  be  given 
of  incapacity.  Hankinson  v.  Barningham,  9 
P.  D.  62  ;  53  L.  J.,  P.  16  ;  32  W.  R.  324 ;  48 
J.  P.  24— Hannen,  P. 

Receiver  —  Injunction — Executor  intermed- 
dling with  Estate.] — An  executor  before  obtain- 
ing probate,  and  without  the  consent  of  his 
co-executor,  intermeddled  with  assets  and  made 
preparations  to  sell  them.  The  court  gTanted 
I  leave  to  the  co-executor  to  issue  a  writ  for  an 


2015 


WILL — Construction. 


2016 


injunction  and  for  a  receiver.  Moore,  In  Goods 
of,  13  P.  D.  36 ;  67  L.  J.,  P.  37  ;  58  L.  T.  386  ; 
36  W.  B.  576  ;  52  J.  P.  200— Hannen,  P. 


Application   before   Probate— Chancery 


Division.]— The  Judicature  Act,  1873,  b.  25, 
sub-s.  8,  enables  any  judge  of  the  High  Court  to 
appoint  a  receiver  of  a  deceased's  estate  (before 
grant  of  probate  or  administration),  notwith- 
standing the  absence  of  lis  pendens  ;  but  applica- 
tions for  any  such  order  being  on  the  way  to 
probate  proceedings  are  properly  made  in  the 
Probate  Division,  and  if  made  elsewhere  will 
not  be  encouraged.  Parker,  In  re,  Bearing  v. 
Brooks,  54  L.  J.,  Ch.  694— Chitty,  J. 

Parties — Striking  out] — In  a  probate  suit, 
out  of  nine  defendants  on  the  record  eight  had 
been  cited  and  had  not  appeared.  The  remain- 
ing one,  who  was  resident  in  New  Zealand,  had 
not  been  served.  The  court,  at  the  hearing, 
allowed  him  to  be  struck  off  the  record,  and  the 
case  to  proceed  against  the  other  eight  defen- 
dants. Brewitt  v.  Breuyitt,  58  L.  T.  684  ;  52 
J.  P.  232— Butt.  J. 

Evidence — Affidavit] — In  a  probate  suit  the 
court  allowed  an  affidavit,  used  on  a  motion 
formerly  made  in  the  suit,  and  sworn  by  a  wit- 
ness who  had  been  subpoenaed  but  was  unable  to 
attend,  owing  to  his  being,  at  the  time  of  the 
hearing,  engaged  as  a  witness  elsewhere,  to  be 
put  in  evidence,  and  treated  the  application  as 
made  before  the  trial  under  Ord.  XXXVII.,  r.  1. 
lb.    See  also  Gomall  v.  Mason,  ante,  col.  2002. 

Duchy  of  Cornwall.]  —On  motion  for 

grant  of  letters  of  administration  of  an  in- 
testate's effects  to  His  Boyal  Highness  the 
Prince  of  Wales,  as  Duke  of  Cornwall,  it  is  not 
necessary,  if  the  facts  are  sufficiently  set  forth 
in  the  warrant,  that  they  should  be  verified  by 
affidavit.  Griffith,  In  Goods  of,  9  P.  D.  63  ; 
53  L.  J.,  P.  30 ;  32  W.  B.  524 ;  48  J.  P.  312— 
Hannen,  P. 

As  to  Birth  or  Death.]— Upon  an  appli- 
cation for  administration  to  the  estate  of  a  child, 
the  court  allowed  the  birth  and  death  of  the 
child  to  be  proved  by  evidence  of  declarations 
by  its  deceased  mother.  Thompson,  In  Goods 
of,  12  P.  D.  100  ;  56  L.  J.,  P.  46  ;  57  L.  T.  373  ; 
36  W.  B.  384— Hannen,  P. 

Pleading — Embarrassing  Matter.]— The  plain- 
tiff propounded  for  probate  a  will  oi  September, 

1880.  A  defendant  counter-claimed  to  prove  a 
will  of  May,  1881.  The  plaintiff  replied  (inter 
alia)  that  the  testatrix  was  not  of  sound  mind 
when  she  executed  the  will  of  May.  1881 ;  and 
(5)  that  if  she  did  duly  execute  it  when  of  sound 
mind,  she  duly  revoked  it  by  a  will  of  June, 

1881,  executed  when  she  was  in  a  similar  state 
of  mind :— Held,  that  clause  5  of  the  reply  ought 
not  to  be  struck  out  as  embarrassing.  Rigg  v. 
Hughes,  Smith,  In  re,  9  P.  D.  68 ;  53  L.  J., 
P.  62  ;  50  L.  T.  293  ;  32  W.  B.  355— C.  A. 

Costs  —  Intervention — Two  Sets.  ]  —  Where 
an  intervener  in  a  probate  suit  had  been  cited 
to  appear  by  the  defendants,  the  unsuccessful 
parties,  and  had  been  charged  by  them  with 
procuring  the  will  by  undue  influence,  the  court, 
in  pronouncing  for  the  will,  departed  from  the 


usual  practice  of  allowing  only  one  set  of  costs, 
and  condemned  the  defendants  in  the  coats  of  the 
intervener  as  well  as  of  the  executors.  Tennant 
v.  Cross,  12  P.  D.  4  ;  56  L.  J.,  P.  74 ;  57  L  T. 
372— Butt,  J. 

Hew  Trial — Misdirection— Grounds  in Houce.] 
—Ord.  XXXIX.,  r.  3,  which  requires  that  the 
grounds  on  which  misdirection  is  alleged  should 
be  stated  in  the  notice  of  motion  for  a  new  trial, 
applies  to  motions  in  the  Probate  Division  as 
well  as  to  the  Queen's  Bench  Division.  Pfeifer 
v.  Midland  Railway  Company  (18  Q.  B.  D. 
243)  followed.  Murfett  v.  Smith,  12  P.  D.  116 ; 
56  L.  J.,  P.  87;  57  L.  T.  498;  35  W.B.460; 
51  J.  P.  374— D. 

Appeal  direct  from  Chambers.]— Appeals  from 
orders  made  in  chambers  are  to  be  subject  to  the 
same  rules  in  the  Probate  Division  as  in  the 
Chancery  Division,  and  will  not  be  entertained 
unless  the  judge  gives  leave  to  appeal  direct, 
or  certifies  that  he  does  not  require  to  hear 
further  argument.  Rigg  v.  Hughes,  Smith,  J% 
re,  supra. 


VIII.    C01TSTRTJCTC0H. 
1.  GENERAL  PRINCIPLES. 

Inconsistent  Clauses.] — Effect  must  be  given 
to  every  part  of  a  will  if  possible.  But  if  two 
clauses  are  so  irreconcileablc  as  to  be  incapable 
of  bearing  a  connected  meaning,  the  earlier 
clause  should  be  discarded,  and  effect  given  to 
the  later  one.  Biggar  v.  Eastwood,  15  L  H, 
Ir.  219— M.  R. 

Printed  Form.] — Where  a  testator,  using* 

a  common  printed  form  of  will,  gave,  devised, 
and  bequeathed  all  his  real  andpersonal  property 
and  estate  to  Albert  Twiddy  Hart,  with  certain 
exceptions,  and  then,  after  a  blank,  came  a  full 
residuary  clause  in  print  unto  Edmund  Twiddr 
Hart,  Amelia  Collins,  and  Albert  Dalby  and 
John  Collins,  to  and  for  their  own  use  and 
benefit  absolutely  :  —  Held,  that  nothing  re- 
mained upon  which  the  second  gift  could 
operate,  and  that  the  first  gift  prevailed.  Spencer, 
In  re,  Hart  v.  Mdnston,  54  L.  T.  597 ;  34  W.  B. 
527— V.-C.  B. 

Foreign  Will.]— If  a  domiciled  Englishman 
makes  a  will  expressed  in  the  technical  terms  of 
the  law  of  a  foreign  country,  so  as  to  manifest 
an  intention  that  it  should  operate  according  to 
that  law,  the  meaning  of  the  will  must  be  ascer- 
tained by  the  foreign  law,  and  then  an  equiva- 
lent effect  must  be  given  to  the  will  in  England. 
Studd  v.  Cook  (8  App.  Cas.  577)  discussed. 
Bradford  v.  Young,  26  Ch.  D.  656 ;  54  L.  J.,Ch. 
96  ;  50  L.  T.  707  ;  32  W.  R.  901— Pearson,  J. 

An  English  will  by  a  testator  domiciled  in 
Lower  Canada  must  be  interpreted  with  regard 
to  the  law  of  Lower  Canada,  and  not  that  of 
England.  Mc  Gibbon  v.  Abbott,  10  App.  Cas. 
653  ;  54  L.  J„  P.  C.  39  ;  54  L.  T.  138— P.  C. 

Rule  of  Construction— Rule  of  Law.]— A  role 
of  construction  is  one  which  points  out  what  a 
court  shall  do  in  the  absence  of  express  or 
implied  intention.  A  rule  of  law  is  one  which 
takes  effect  when  certain  conditions  are  found, 
although  a  testator  may  have  indicated  an  in" 


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tention  to  the  contrary.    Coward,  In  re,  Coward, 
v.  Larkman,  57  L.  T.  285— C.  A. 

Costs  of  obtaining  Decision  of  Court.  ] — Where 
a  testator  has  used  doubtful  language,  it  may  be 
right  for  those  interested  to  have  recourse  to  the 
<»urt  to  ascertain  the  true  construction  of  his 
will,  and  to  throw  the  necessary  costs  upon  the 
fund  in  dispute.  When  the  decision  of  the  court 
of  first  instance  has  been  obtained  at  the  expense 
of  the  fund,  if  either  party  is  dissatisfied,  he 
most,  as  a  general  rule,  challenge  that  decision 
at  his  own  peril.  If,  however,  the  appeal  be 
successful,  the  costs  of  the  appeal  may  be  re- 
garded as  parf  of  the  unavoidable  expense  of 
obtaining  a  correct  decision.  Dillon  v.  A  r kins, 
17  L.  R.,  Ir.  636— C.  A. 


2.  INACCURACIES— PAROL  EVIDENCE 
TO  EXPLAIN. 

Supplying  Blank — Power  to  look  at  Original 
Will.] — For  the  purpose  of  construing  a  will  the 
-court  is  entitled  to  look  at  the  original  will  as 
well  as  at  the  probate  copy.  Harrison,  In  re, 
Turner  v.  Hellard,  30  Ch.  D.  390  ;  55  L.  J.,  Ch. 
799 ;  53  L.  T.  799 ;  34  W.  R.  420— C.  A. 

lame  of  Legatee  in  blank.] — A  testatrix,  in 
making  her  will,  used  a  law  stationer's  form, 
which  was  partly  in  print,  blanks  being  left  in 
it  which  were  to  be  filled  up  by  the  person  who 
made  use  of  it.  After  directing  that  her  debts 
and  funeral  and  testamentary  expenses  should 
he  paid  by  her  executrix  thereinafter  named,  the 
testatrix  gave  all  her  property,  both  real  and 
personal,  "  unto  to  and  for  her  own  use 

and  benefit  absolutely,  and  I  nominate,  consti- 
tute, and  appoint  my  niece,  Catherine  Hellard, 
to  be  executrix  of  this  my  last  will  and  testa- 
ment : " — Held,  that  there  was  an  effectual  gift 
of  the  residue  to  Catherine  Hellard.  Harrison, 
In  re,  Twrner  v.  Hellard,  supra. 

Admissibility   of    Parol    Evidence.] — 

Testatrix,  who  made  her  will  on  a  printed  form, 
after  giving  certain  legacies,  gave  all  her  estate 
real  and  personal  "  unto 

to  and  for  own  use  and  benefit 

absolutely,"  and  then  appointed  C.  W.  C.  to 
pay  all  her  debts,  &c,  and  to  be  executor  of 
her  will.  The  Chief  Clerk  certified  that  the 
testatrix  was  illegitimate,  and  that  she  left  no 
issue  or  next  of  kin.  The  Crown  and  the  executor 
claimed  the  residue,  and  the  executor  tendered 
evidence  to  prove  that  the  intention  of  the  tes- 
tatrix was  that  he  should  take  the  residue,  if 
any,  for  his  own  benefit : — Held,  that,  under  the 
peculiar  circumstances,  parol  evidence  was  ad- 
missible to  rebut  the  presumption  against  the 
executor  arising  from  the  blanks  in  the  will,  and 
that  the  executor,  subject  to  the  payment  of 
costs,  was  entitled  for  his  own  benefit  to  what 
should  remain.  Bacon'*  Will,  In  re,  Camp  v. 
Coe,  31  Ch.  D.  460 ;  55  L.  J.,  Ch.  368  ;  54  L.  T. 
160 ;  34  W.  R.  319— Kay,  J. 

A  testator,  after  giving  legacies  to  Mary  Wyatt, 
Mathew  Wyatt,  Frederick  Wyatt,  Louisa  Atwell 
{called  Wyatt),  Maria  Weir,  and  Emily  de 
Vere,  proceeded  "I  give  and  bequeath  to  , 

daughter  of  ,  holding  some  situation  about 

the  church  ,    the   sum   of    fifty   pounds 


annually  during  the  continuance  of  her  natural 
life,  and  I  direct  my  trustees  or  trustee  for  the 
.  time  being  to  pay  to  the  said  the  said 

annuity  of  fifty  pounds  .  .  .  and  the  receipt  of 
the  said  shall  be  sufficient  discharge  to  my 

trustees  or  trustee  for  the  time  being ;  and  from 
the  decease  of  the  said  I  direct,"  &c.     And 

the  testator  directed  that,  "  in  case  any  one  of 
my  said  legatees,  Mary  Wyatt,  Frederick  Wyatt, 
Mathew  Wyatt,  Louisa  Atwell  (called  Wyatt), 
Maria  Weir,  Emily  de  Vere,  or  Marian  Elliott," 
should  become  bankrupt,  &c,  her  or  his  legacy 
should  determine,  and  that  the  trustees  or 
trustee  should  pay  to  her  or  him,  "  if  in  the  case 
of  Mary  Wyatt,  Mathew  Wyatt,  and  Frederick 
Wyatt,  the  sum  of  forty  shillings  a  week,"  and 
"  if  in  the  case  of  Maria  Weir  and  Emily  de  Vere, 
the  sum  of  thirty  shillings  a  week,"  and  "  if  in 
the  case  of  Marian  Elliott,  the  sum  of  fifteen 
shillings  a  week  : " — Held,  on  an  originating 
summons  by  Marian  Furniss  (formerly  Marian 
Elliott),  supported  by  an  affidavit  by  her  to  the 
effect  that  she  was  the  daughter  of  James  Elliott, 
beadle  of  the  parish  church  at  Epsom,  and  that 
the  testator  was  acquainted  with  her,  that  she 
was  entitled  to  the  annuity  of  fifty  pounds  given 
by  the  will.  Furniss  v.  Phear,  36  W.  R.  521— 
North,  J. 

Clerical  Error  in  Description — Correction  by 
Reference  to  Context.]— A  clerical  error  may  be 
corrected  where,  if  uncorrected,  it  makes  the  will 
absurd,  and  the  proper  correction  can  be  gathered 
from  the  context.  Northcn's  Estate,  In  re,  Salt 
v.  Pijm,  28  Ch.  D.  153  ;  54  L.  J.,  Ch.  273  ;  52 
L.  T.  173  ;  33  W.  R.  336— Chitty,  J. 

A  testator  devised  an  estate  called  Lea  Knowl 
to  trustees  upon  trusts  for  the  benefit  of  his 
daughter  W.,  her  husband  and  children,  and 
empowered  his  trustees,  at  the  request  of  his 
daughter  W.,  to  sell  the  estate  and  stand  pos- 
sessed of  the  sale  moneys  upon  the  trusts  there- 
inbefore declared  "  concerning  the  said  Lea 
Knowl  estate  hereby  devised,  as  to  such  and  so 
many  of  them  as  shall  at  the  time  of  sale  have 
been  existing  undetermined  and  capable  of 
taking  effect."  He  then  devised  an  estate  called 
Croxton  to  trustees  upon  similar  trusts  for  the 
benefit  of  his  daughter  C,  her  husband  and 
children,  and  empowered  his  trustees,  at  the  re- 
quest of  his  daughter  C,  to  sell  the  last-men- 
tioned devised  hereditaments  and  stand  possessed 
of  the  sale  moneys  "in  trust  for  such  person  and 
persons,  and  for  such  estates,  ends,  intents  and 
purposes,  powers,  provisoes,  and  conditions  as  are 
hereinbefore  limited,  expressed,  and  declared  of 
and  concerning  the  said  Lea  Knowl  estate  here- 
by devised,  as  to  such  and  so  many  of  them  as 
shall  at  the  time  of  sale  have  been  existing  un- 
determined and  capable  of  taking  effect :  " — 
Held,  that  the  words  "  the  said  Lea  Knowl 
estate,"  in  the  trusts  of  the  moneys  to  arise  from 
the  sale  of  the  Croxton  estate  had  been  inserted 
in  the  will  through  an  obvious  error ;  that  to 
read  the  words  "the  said  Lea  Knowl  estate," 
literally  and  grammatically,  would  be  making 
the  will  lead  to  a  manifest  absurdity  or  incon- 
gruity, and  that  the  will  must  be  read  as  if  the 
words  "  the  6aid  Croxton  estate  "  were  inserted 
in  the  place  of  the  words  "  the  said  Lea  Knowl 
estate,"  in  the  trusts  of  the  moneys  to  arise  from 
the  sale  of  the  Croxton  estate.    lb. 

Supplying  Omission- by  Inference.] — The  prin- 

3  T 


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ciples  on  which  the  court  acts  in  supplying 
by  inference  an  omission  in  a  will  discussed. 
An  omission  may  be  supplied  in  the  case  of 
independent  gifts  to  strangers,  as  well  as  in  the 
case  of  a  series  of  gifts  to  children  of  a  testator, 
or  to  members  of  a  class.  Mellor  v.  Daintree, 
83  Ch.  D.  198  ;  56  L.  J.,  Ch.  33  ;  65  L.  T.  175— 
North,  J. 

A  testator  devised  and  bequeathed  his  real  and 
residuary  personal  estate  to  trustees,  on  trust  as 
to  one  moiety  of  the  personalty  and  a  specific 
part  (being  about  half  in  value)  of  his  realty  to 
accumulate  the  income  until  B.  should  attain 
twenty-five  or  die,  whichever  should  first  happen, 
in  case  either  of  such  events  should  happen 
within  twenty-one  years  from  his  own  death, 
but,  in  case  that  period  should  expire  before 
either  of  such  events  should  happen,  upon  trust 
to  pay  the  income  to  B.,  if  living,  from  the 
expiration  of  such  period  until  he  should  attain 
twenty-five  or  die,  whichever  should  first  hap- 
pen, and,  subject  as  aforesaid,  the  testator 
directed  that  the  moiety  should  be  held  in  trust 
for  B.  absolutely  in  case  he  should  attain  twenty- 
five,  and  in  case  he  should  die  under  twenty- 
five,  leaving  a  son  or  sons  him  surviving,  who, 
or  any  one  of  them,  should  attain  twenty-one, 
the  moiety  was,  subject  as  aforesaid,  to  be  held 
in  trust  for  the  only,  or,  if  more  than  one,  the 
first  surviving  son  of  B.  who  should  attain 
twenty-one.  And  the  testator  directed  that  the 
second  moiety  of  the  personalty  and  the  rest  of 
the  realty  should  be  held  on  trust  to  accumulate 
the  income  until  D.  should  attain  twenty-five  or 
die,  whichever  should  first  happen  within  the 
period  of  twenty-one  years  from  his  own  death, 
and  in  case  that  period  should  expire  before 
either  of  such  events  should  happen,  then  upon 
trust  to  pay  the  income  to  D.  (if  living)  from 
the  expiration  of  such  period  until  he  should 
attain  twenty-five  or  die,  whichever  should  first 
happen,  and,  subject  as  aforesaid,  the  testator 
directed  that  the  moiety  should  be  held  in  trust 
"  for  such  only  surviving  son,  or,  if  more  than 
one  surviving  son,  for  the  eldest  of  such  surviv- 
ing sons  absolutely."  But,  in  case  D.  should 
leave  no  son  him  surviving,  the  property  was  to 
be  held  in  trust  for  B.  absolutely.  B.  was  a 
stranger  in  blood  to  the  testator ;  D.  was  the 
testator's  nephew.  D.  attained  twenty-five: — 
Held,  that,  having  regard  to  the  whole  scheme 
of  the  will,  an  absolute  gift  of  the  second  moiety 
to  D.  at  twenty-five  must  be  implied.    lb. 

Erroneous  Statement — Legatee  adducing  Evi- 
dence to  contradict  Will.] — A  testator  gave  the 
proceeds  of  sale  of  his  real  and  personal  estate 
to  trustees,  on  trust  to  divide  the  same  among 
his  children  living  at  his  death,  and  the  issue  of 
deceased  children,  in  equal  shares  per  stirpes. 
The  will  stated  that  the  testator  had  advanced 
to  four  of  his  sons  respectively  certain  specified 
amounts,  on  account  of  their  respective  shares, 
and  the  testator  directed  that  the  "  respective 
sums  hereinbefore  recited  to  have  been  advanced" 
should  be  brought  into  hotchpot  by  the  four  sons 
respectively  for  the  purposes  of  the  division  of 
his  estate : — Held,  that  the  sons  were  bound  by 
the  statement  in  the  will  of  the  amounts  of  the 
advances  made  to  them,  and  were  not  entitled 
to  adduce  evidence  to  show  that  the  advances 
which  had  been  made  to  them  were  in  fact  of 
less  amount  Aird's  Estate,  In  re  (12  Ch.  D. 
291)  followed.    The  decision  in  that  case  is  not 


overruled  by  Taylor**  Estate,  In  re  (22  Ch.  D. 
495).  Wood,  In  re,  Ward  v.  Wood,  32  Ch.  D. 
517;  55  L.  J.,  Ch.  720  ;  54  L.  T.  932  ;  34  W.  H 
788— North,  J. 

Description  of  Devised  Lands.]— A  testator 
devised  "  the  townland  of  T.,  including  the 
house,  offices,  and  demesne,  &c~,  of  W."  In 
addition  to  the  demesne  of  W.,  which,  in  fact, 
formed  part  of  T.,  the  testator  was  entitled  to 
adjoining  lands,  called  M.  and  C. :— Held,  that 
extrinsic  evidence  that  the  testator  treated  H. 
and  C.  as  part  of  the  demesne  of  W.  was  inad- 
missible for  the  purpose  of  showing  that  M.  and 
C.  passed  under  the  devise.  King  v.  Xing,  13 
L.  B.,  Ir.  581— V.-C. 

"Acre*"— Irian  or  Statute  Acrei.]— A  tes- 
tator, by  a  will  made  in  1872,  devised u  forty- 
five  acres  of  the  lands  of  D."  to  iu,  and  "fifty 
acres "  of  the  same  lands  to  B. :— Held,  that 
extrinsic  evidence  was  not  admissible  to  show 
that  the  testator  meant  Irish  and  not  statute 
acres.  By  the  statutory  definition  contained  in 
the  5  Geo.  4,  c.  74,  s.  2,  the  word  "ac^e,,  haa 
received  a  legal  signification  which  must  be 
attributed  to  that  word,  whether  used  in  a 
contract,  or  in  a  will,  or  other  voluntary  instm- 
ment.  O'Donnell  v.  O'&onnell,  13  L.  R.,  Ir.  226 
— C.A. 

Secret  Trust — Evidence  to  show  Existence  oil 
— A  testator  who  died  in  Jan.,  1885,  by  his  will 
dated  in  Dec,  1884,  bequeathed  to  his  friends  A 
and  B.  the  sum  of  500/.  free  of  legacy  dnty  to 
be  raised  and  be  paid  out  of  his  pure  personalty, 
"  relying,  but  not  by  way  of  trust,  upon  then- 
applying  the  said  sum  in  or  towards  the  object 
or  objects  privately  communicated  to  them  "by 
him.  The  executors  objected  to  pay  over  the 
bequest,  on  the  ground  that  there  was  a  secret 
trust,  and  that  such  trust  appeared  to  be  an 
illegal  one.  The  legatee  accordingly  applied  to 
the  court  to  order  payment  of  the  legacy.  The 
executors  tendered  affidavits  to  show  that  the 
bequest  was  upon  a  trust.  The  legatees  objected 
that  the  court  could  not  go  beyond  the  terms  of 
the  will  :— Held,  that  the  evidence  was  ad- 
missible. Russell  v.  Jackson  (10  Hare,  204) 
followed.  Spencer's  WUl,  In  re,  57  L.  T.  519- 
C.  A. 

Latent  Ambiguity— Description  of  Up&*- 
Parol  Evidence.]— A  testatrix  gave  a  share  of 
her  residue  to  her  "  cousin,  Harriet  Cloak.*  She 
had  no  cousin  of  that  name,  but  she  had  a 
married  cousin,  Harriet  Crane,  whose  maiden 
name  was  Cloak  ;  and  she  had  a  cousin, 
T.  Cloak,  whose  wife's  name  was  Harriet:— 
Held,  that  extrinsic  evidence  was  admissible  to 
show  the  testatrix's  knowledge  of  and  intimacy 
with  the  members  of  the  Cloak  family.  Gr*& 
v.  Grant  (5  L.  R.,  C.  P.  727)  dietuiguishei 
Taylor,  In  re,  Cloak  t.  Hammond,  84  Ch.  D. 
255;  56  L.  J.,  Ch.  171 ;  56  L.  T.  649 ;  85  W. B. 
186— C.  A. 

A  testator  by  his  will  left  to  his  nephew  his 
(the  testator's)  interest  in  the  lands  of  W 
subject  to  the  payment  of  all  charges  on  the  said 
farm  and  lands,  and,  as  to  the  said  farm,  wrtqect 
to  the  payment  by  him  (the  testator's  nephew) 
to  each  of  his  parents  during  their  respective 
lives,  of  the  sum  of  6J.  per  year.  At  the  tine 
of  his  decease,  and  at  the  date  of  the  will,  the 
testator  had  several  nephews,  sons  jof  the  tes- 


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WILL — Construction. 


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tator's  brothers,  who  had  emigrated  to  America 
many  years  before.  He  had  also  a  nephew  T.  D., 
son  of  his  sister  M.  D.  For  some  years  before 
his  death  the  testator  resided  with  M.  D.  and 
her  husband,  and  T.  D.  had  managed  the  tes- 
tator's farm  at  L.  The  solicitor  who  drew  the 
will  proved  that  the  testator  intended  T.  D.  as 
the  object  of  his  bounty  : — Held,  that  T.  D.  was 
entitled  to  the  farm.  Phelan  v.  Slattery,  19 
L.  B.,  Ir.  177— V.-C. 

A  testator,  in  1877,  left  to  his  trustees  a  sum 
of  10,000/.    railway   stock,    in    trust    for    the 
u  children  "  living  at  his  decease  of  his  deceased 
niece  "  Margaret  Kerr."    Some  years  before  the 
date  of  the  will  the  niece  mentioned  had  married 
a  second  time,  under  circumstances  which  very 
much  displeased  the  testator,  who  had  in  conse- 
quence declined  to  hold  any  communication  with 
her,  and  always  refused  to  recognise  her  by  any 
other  surname  than  that  of  "  Kerr,"  her  first 
husband's.    There  were  five  children  of  the  first 
marriage,  and  one  of  the  second,  who  survived 
the  testator.    Within  three  weeks  after  the  date 
of  the  will  the  testator  wrote  a  letter  to  one  of 
the  five  children  of  the  first  marriage,  from 
which  it  appeared  that  he  intended  to  confine 
the  gift  of  the  10,000/.  to  them,  as  he  stated 
therein  that  he  had  by  his  will  left  them  2,000/. 
each.    He  also  caused  a  similar  letter  to  be 
written  and  sent  about  four  years  later.    The 
testator  died  in   1883 :— Held,  that  the  word 
41  children"  must  bear  its  prima  facie  meaning, 
so  as  to  include  the  children  of  both  marriages, 
and  that,  there  being  no  latent  ambiguity  as  to 
its  signification  in  this  instance,  the  letters  were 
not  admissible  to  show  the  testator's  intention. 
Andrews  v.  Andrews,  15  L.  R.,  Ir.  199— C.  A. 

lUbutting  Presumption— Gift  to  Executor.]— 

Parol  evidence  is  admissible  to  rebut  the  pre- 
sumption that  a  legacy  given  to  a  person  who  is 
appointed  executor  is  annexed  to  the  office. 
Appleton,  In  re,  Barber  v.  Tebbit,  29  Ch.  D. 
893 ;  64  L.  J.,  Ch.  964  ;  52  L.  T.  906  ;  49  J.  P. 
708— Per  Cotton.  L.  J. 

A  testator's  will  contained  the  following 
clause : — *  I  give  and  bequeath  to  my  brother  E. 
whatsoever  real  estate  1  may  die  possessed  of, 
wheresoever  situate,  on  trust  nevertheless  to  pay 
thereout  the  sum  of  800/.  due  from  me  to  the  trus- 
tees under  the  marriage  settlement  of  S.,  and  the 
ram  of  300/.  due  from  me  to  B.,  and  also  on 
trust  to  pay  to  each  of  my  sisters  M.  and  C.  and 
to  my  brother  A.,  as  long  as  they  respectively 
live,  the  sum  of  60/.  every  year."  The  will  con- 
tained a  bequest  of  the  personalty  to  E.  and  A. 
and  certain  of  his  sisters,  and  appointed  E. 
executor  thereof  :— Held,  that  as  E.  was  an 
express  trustee,  parol  evidence  was  not  ad- 
missible to  show  that  there  was  an  intention  to 
give  him  a  beneficial  interest.  Oroome  v.  Croome, 
59  L.  T.  682— Stirling,  J.  And  see  Bacon's 
Will,  In  re,  ante,  col.  2017, 


3.    DEVISEES  AND  LEGATEES. 

a.  To  What  Persons. 

i.   Children. 

a.  Illegitimate  Children. 

Child  En  ventre  samere.]— G.  B.  went  through 
the  ceremony  of  marriage  with  J.  A.  C,  whose 


husband  had  deserted  her  and  gone  abroad  many 
years  before  and  was  believed  to  be  dead,  but 
G.  B.  was  aware  that  there  was  no  certain  infor- 
mation of  his  death.  Shortly  afterwards  G.  B. 
made  his  will,  by  which  he  gave  "to  my  dear 
wife  J.  A.  B.,  formerly  J.  A.  C.,"  an  interest  in 
certain  chattels  during  her  widowhood,  and  also 
gave  to  her  the  income  of  his  residuary  per- 
sonalty during  widowhood,  and  after  her  decease 
or  re-marriage  he  gave  the  corpus  to  "all  and 
every  my  child  and  children,"  as  therein  men- 
tioned, and  in  default  of  children  to  his  nephews 
and  nieces.  G.  B.  and  J.  A.  C.  cohabited  for 
more  than  a  year  and  a  half  after  the  date  of  the 
will,  when  G.  B.  died  leaving  J.  A.  C.  enceinte 
of  her  only  child.  She  enjoyed  the  income  of  the 
residue  till  her  death,  upon  which  event  the 
nephews  and  nieces  claimed  the  property  under 
the  gift  over,  and  proved  that  J.  A.  C.'s  child 
was  illegitimate,  her  former  husband  having  been 
alive  at  the  time  of  her  marriage  to  the  testator :: 
— Held,  that  the  child  could  not  take.  Oceleston* 
v.  Fullalove  (9  L.  R.,  Ch.  147),  leaves  untouched 
the  rule  that  there  cannot  be  a  valid  gift  to>  at 
future  illegitimate  child  described  solely  by 
reference  to  its  paternity.  Goodwin's  Trust,  In 
re  (17  L.  R,  Eq.  845),  observed  upon.  Bolton, 
In  re,  Brown  v.  Bolton,  31  Ch.  D.  542  ;  55  L.  J., 
Ch.  398  ;  54  L.  T.  396  ;  34  W.  B.  326 ;  50  J.  P. 
532— C.  A. 

Whether  an  illegitimate  child  en  ventre  sa 
mere  at  the  testator's  death,  but  not  en  ventre 
sa  mere  when  the  will  was  made,  can  take  as  the 
reputed  child  of  the  supposed  father,  quaere. 
lb. 

Children  to  bo  in  esse  at  Death  of  Testator.] — 

H.  by  his  will  gave  a  trust  fund  "  in  trust  for  my 
four  natural  children  by  M.  E.  M.,  viz.,  J.,  C,  E., 
and  J.  H.,  and  all  and  every  other  children  and 
child  which  may  be  born  of  the  said  M.  E.  M. 
previous  to  and  of  which  she  may  be  pregnant 
at  the  time  of  my  death,  share  and  share  alike:" 
Besides  the  four  children  named  in  the  will 
there  were  three  other  children  born  of  M.  E.  M. 
after  the  date  of  the  will  and  before  the  death 
of  the  testator,  all  of  whom  were  known  by  his 
surname  : — Held  (1),  that  upon  the  construction 
of  the  will  the  word  "  children  "  must  be  taken 
to  include  illegitimate  children,  and  was  not 
void  for  uncertainty  ;  and  (2),  that  being  a  gift 
by  will  to  illegitimate  children  of  the  testator  to 
be  in  esse  before  the  death  of  the  testator,  it  was 
a  good  gift  within  the  rule  laid  down  in  Oceleston 
v.  Fallalove  (9  L.  R.,  Ch.  147),  and  that  the 
children  who  came  into  esse  after  the  date  of  the 
will  and  before  the  death  of  the  testator  were 
entitled  to  share  in  tho  gift  Hastitfs  Trusts,  In 
re,  35  Ch.  D.  728 ;  66  L.  J.,  Ch.  792 ;  57  L.  T. 
168 ;  35  W.  fi.  692-Stirling,  J. 

Gift  to  "Children"— Gift  over.]— A  testator 
by  his  will,  made  in  1847,  gave  to  his  eldest 
daughter,  naming  her,  a  freehold  estate.  The 
testator  in  the  will  twice  called  her  his  eldest 
daughter.  He*  disposed  of  his  furniture  and 
continued,  "I  particularly  direct  that,  should 
any  of  my  children  die  without  having  any 
children  of  their  own  lawfully  begotten,  their 
share,  whether  land  or  money,  shall  be  divided 
equally  among  my  surviving  children,  and  none 
of  the  land  shall  ever  be  sold."  The  testator 
died  on  the  14th  December,  1854 ;  his  eldest 
daughter  was  illegitimate,  and  died  intestate 

3  T  2 


2023 


WILL — Construction. 


2024 


without  having  had  any  children.  An  action 
was  brought  for  partition  of  the  real  estate,  and 
the  chief  clerk  found  that  the  persons  entitled 
to  the  interest  of  the  eldest  daughter  in  the 
freehold  estate  devised  to  her  were  the  surviving 
children  of  the  testator.  On  summons  issued  by 
the  Attorney-General  claiming  the  estate  on 
behalf  of  the  Crown :— Held,  that  the  rule  of 
law,  that  where  there  is  a  gift  to  children,  an 
illegitimate  child  cannot  take  pari  passu  with 
legitimate  children  in  the  absence  of  special 
directions,  does  not  apply  to  a  gift  over ;  and 
that  on  the  death  of  the  eldest  daughter,  the 
estate  went  to  the  other  children  of  the  testator. 
Smith  v.  Jobton,  69  L.  T.  397—  Kay,  J. 


Sufficiency  of  Description.]— A  testator 


by  his  will,  dated  in  1868,  directed  his  trustees  to 
pay  the  income  of  a  certain  share  in  a  trust  fund 
"  to  my  sister  Charlotte,  the  wife  of  Thomas  H.," 
during  her  life,  and  after  her  death  to  pay  and 
divide  the  share  unto,  between  and  amongst  "  all 
her  children  "  who  should  be  living  at  her  death, 
and  the  "representatives"  of  such  of  them  as 
should  have  died  in  her  lifetime  who  should  have 
attained  twenty-one,  equally  share  and  share 
alike.  Charlotte  never  was  the  wife  of  Thomas 
H.,he  having  previously  to  1845  married  another 
woman  who  at  the  date  of  the  will  and  down  to 
his  death  in  1875  was  his  lawful  wife.  In  1845 
Charlotte  left  her  home,  and  thenceforth  co- 
habited with  Thomas  H.  until  he  died.  At  the 
date  of  the  will  she  had  had  four  illegitimate 
children  by  him,  the  two  survivors  of  whom 
were  then  living,  aged  respectively  twenty  and 
eighteen  ;  and  she  had  not  had  a  child  for 
seventeen  years,  and  was  presumably  past  child- 
bearing.  Charlotte  died  in  1885.  These  were 
the  only  children  she  ever  had,  and  only  one  of 
them  survived  her.  The  testator  was  well  aware 
of  the  connexion  of  his  sister  with  Thomas  H., 
visited  at  the  house  where  they  resided,  and 
recognized  the  children  of  his  sister  by  Thomas 
H.  as  his  own  nephews  and  nieces  : — Held,  that 
the  testator  in  describing  his  sister  Charlotte  as 
the  "  wife  "  of  Thomas  H.,  when  he  knew  she 
was  not  so,  and  in  using  correlatively  with  that 
the  expression  "children"  to  describe  the  off- 
spring of  a  woman  whom  he  knew  not  to  be 
lawfully  married,  had  shown  that  he  did  not  use 
the  term  "  children "  in  its  strict  legal  sense ; 
and  that,  applying  the  principles  laid  down  in 
mil  v.  Crook  (6  L.  R.,  H.  L.  265),  the  illegiti- 
mate children  of  Charlotte  were  intended,  and 
were  entitled  to  take  under  the  gift  in  the 
testator's  will.  Hill  v.  Crook  (6  L.  R.,  H.  L. 
265),  and  Dorin  v.  Dorin  (7  L.  R.,  H.  L.  568),  j 
explained.  Aylef  Trusts,  In  re  (1  Oh.  D.  282), 
Ellis  v.  Houstovn  (10  Ch.  D.  236),  and  Megson  v.  | 
Hindle  (15  Ch.  D.  198),  considered.  Horner,  j 
In  re,  Eaglet  on  v.  Horner,  37  Ch.  D.  695 ;  57  L.  ' 
J.,  Ch.  211  ;  68  L.  T.  103  ;  36  W.  R.  348— ' 
Stirling,  J.  | 

A  testator  described  R.  W.  and  another  person 
(who  was  a  legitimate  nephew  of  the  testator) 
as  "my  two  nephews."  He  gave  his  residuary 
estate  upon  trust  for  the  "children"  of  his 
brothers  E.  H.  and  T.  H..  and  of  his  sister  J.  W. 
and  of  his  late  sister  S.  B.,  in  equal  shares,  with 
a  gift  over  if  any  one  or  more  of  his  "  nephews 
and  nieces "  should  die  before  him  leaving 
children.  R.  W.  was  an  illegitimate  child  of  J. 
W.,  who  had  four  legitimate  children,  three  sons 
and  one  daughter : — Held,  that  the  circumstance 


that  R.  W.  was  described  by  the  testator  as 
"  nephew  "  was  not  sufficient  to  entitle  him  to 
share  under  the  gift  to  the  children  of  J.  W. 
Hall,  In  re,  Branston  v.  Weightman,  35  Ch. 
D.  551 ;  56  L.  J.,  Ch.  780  ;  57  L.  T.  42 ;  35  W. 
R.  797— Kay,  J. 

A  testatrix  bequeathed  to  A.,  "the  eldest 
daughter  of  my  deceased  daughter,  8.,  my  gold 
watch."  And  she  bequeathed  other  property  to 
trustees  "  in  trust  for  such  of  the  children  of  my 
said  deceased  daughter,  S.,  who  shall  attain 
twenty-one,  absolutely,  equally  share  and  share 
alike,  the  shares  of  such  of  them  as  shall  be 
daughters  to  be  for  their  sole  and  separate  o9e." 
S.  had  two  legitimate  children,  a  son  and  a 
daughter,  and  she  had  also'  an  illegitimate 
daughter,  who  was  the  person  spoken  of  in  the 
will  as  "  A.,  the  eldest  daughter  of  S."  :— Held, 
that  there  was  a  sufficient  indication  of  an  in- 
tention that  A.  should  be  included  in  the  descrip- 
tion of  "  the  children  of  S."  Humphries,,  In  it, 
Smith  v.  MUlidge,  24  Ch.  D.  691 ;  49  L.  T.  594 
— North,  J. 

Testator  by  his  will  bequeathed  to  M.  B.  BM 
"  daughter  of  my  nephew,  J.  B.,"  200Z. ;  and  to 
T.  B., "  son  of  the  said  J.  B.,"  100J.  He  directed 
his  trustees  to  stand  possessed  of  his  residue 
upon  trust  for  "  all  and  every  the  children  and 
child  "of  R.  C.  and  J.  B.  respectively.  By  a 
codicil  testator  revoked  the  bequest  of  200/.  "to 
my  great-niece  "  M.  B.  B.,  and  the  beqnest  of 
100J.  "  to  my  great-nephew,"  T.  B..  and  instead 
thereof  bequeathed  to  M.  B.  B.  100/. ;  to  T.  & 
1002. ;  and  to  A.  B., "  another  daughter  of  my 
nephew  J.  B.,"  100/.  M.  B.  B.  was  illegitimate; 
T.  B.  and  A.  B.  were  legitimate :— Held,  that 
M.  B.  B.  was  sufficiently  indicated  as  one  of  the 
persons  who  was  to  participate  in  the  residue. 
Megson  v.  Hindle  (lb  Ch.  D.  198) >  distinguished, 
Bryon,  In  re,  Drummond  v.  Leigh,  30  Ch.  D. 
110  ;  55  L.  J.,  Ch.  30— V.-C.  B. 


Illegitimate  Children    only  in  Szift- 


enoe.]— The  testator,  in  1860,  was  seized  with 
paralysis  at  the  house  of  his  sister-in-law, 
M.  A.  L.,  and  her  husband,  and  remained  there 
till  his  death.  M.  A.  L.  had  been  married  seren 
years,  and  had  by  her  husband  three  children, 
aged  sixteen,  thirteen,  and  eleven,  born  before 
her  marriage  with  him,  but  treated  as  legitimate. 
The  testator  was  intimate  with  them.  Being 
worse,  he  was  advised  by  his  medical  attendant 
to  make  his  will,  and  made  one  dated  the  7th  of 
October,  1860,  containing  the  following  disposi- 
tions : — "  1  give  and  bequeath  the  following 
legacies  to  the  following  persons  (that  is  to 
say),"  after  which  followed  gifts  of  legacies  to 
persons  named,  "  and  to  each  of  the  children  of 
M.  A.  L.  the  sum  of  5/.  for  mourning,  the  same 
to  be  paid  into  the  hands  and  on  the  receipt  of 
the  said  M.  A.  L.,  their  mother,  for  them,  not- 
withstanding their  coverture  and  their  mino- 
rity." On  the  5th  of  August,  1861,  he  made  a 
codicil,  by  which  he  bequeathed  400/.,  on  the 
death  of  an  annuitant,  "  unto  and  equally  be- 
tween all  the  children  who  shall  be  then  living 
of  M.  A.  L.f  share  and  share  alike/*  and  con- 
firmed his  will  except  as  varied  by  the  codiciL 
He  died  two  days  afterwards.  M.  A.  L.,  who 
was  aged  forty-four  when  the  will  was  made, 
never  had  any  legitimate  child.  On  the  death  of 
the  annuitant  in  1884  the  three  children  claimed 
the  400/.,  and  the  executors,  one  of  whom  was 
the  residuary  legatee,  took  out  an  originating 


2025 


WILL — Construction. 


2026 


summons  to  have  the  point  decided.  It  was  held 
that  the  children  were  not  entitled,  but  gave  the 
costs  of  all  parties  ont  of  the  400/.  The  children 
appealed :— Held,  by  Cotton,  L.J.,  that  the  ap- 
pellants were  not  entitled,  for  that  no  repug- 
nancy or  inconsistency  in  the  will  would  result 
from  giving  to  the  word  "  children  "  its  proper 
sense  of  legitimate  children ;  that  the  three 
children,  therefore,  were  not  entitled  to  the  5/. 
legacies,  and  whether,  if  they  had  been  so  en- 
titled, the  word  "  children  "  in  the  distinct  gift 
in  the  codicil  ought  to  be  construed  in  the 
same  way  as  in  the  will,  quaere.  But  held,  by 
Bowen  and  Fry,  L.JJ.,  that  there  was  enough  in 
the  will,  as  explained  by  the  surrounding  circum- 
stances, to  show  that  the  testator  used  the  word 
"children "  in  a  sense  which  would  apply 
(whether  exclusively  or  not)  to  the  existing 
children,  and  that  the  word  must  have  a  similar 
interpretation  in  the  codicil,  and  that  the  appel- 
lants, therefore,  were  entitled  to  the  400/. : — 
Held,  that  the  costs  of  the  proceedings  must  be 
borne  by  the  residuary  estate.  Haseldine,  In  re, 
Orangey,  Sturdy,  31  Ch.  D.  511 ;  54  L.  T.  322  j 
34  W.  R.  327  ;  50  J.  P.  390^-C.  A. 


/*.    In  Ordinary  Cases. 

Whether  including  Grandchildren.]— It  is  a 

rule  that  in  a  will  the  word  "  children  must  be 
construed  in  its  literal  sense,  unless  from  the  will 
itself  and  the  context  it  appears  that  the  word  is 
intended  to  have  a  wider  meaning  ;  and  for  this 
purpose  it  is  not  right  to  take  into  consideration 
outside  circumstances.  A  testator  left  residue  to 
trustees  upon  trust  to  divide  it  into  four  parts, 
and  pay  one  part  "  to  the  children  of  his  late 
brother  W.  equally  ;  "  the  other  part  "  to  the 
children  of  his  late  brother  J.  equally ; "  the  other 
part  "to  the  daughters  of  his  late  brother  A. 
equally  ; "  and  the  remaining  part  to  a  certain 
nephew.  J.  had  had  three  children  and  no  more, 
all  of  whom  were  dead  at  the  date  of  the  will. 
The  testator  knew  this.  J.  left,  however,  both 
grandchildren,  and  great-grandchildren  who  sur- 
vived the  testator : — Held,  on  the  above  principle, 
that  there  was  an  intestacy  as  to  the  share  given  to 
J/s"  children,"  there  being  nothing  in  the  context 
or  within  the  four  corners  of  the  will  to  justify 
the  meaning  being  extended  ;  it  being  clear,  on 
the  contrary,  that  the  word  "children"  was 
used  in  its  literal  sense  in  the  gift  to  W.'s 
children.  Kirk,  In  re,  Nicholson  v.  Kirk,  52  L. 
T.  346— Pearson,  J. 

A  testator  gave  his  residuary  real  and  personal 
estate  to  trustees  in  trust  for  sale,  and  to  divide 
the  proceeds  into  six  shares,  and  to  pay  one  of 
such  shares  to  the  "  children  "  of  his  deceased 
aster;  and  he  gave  the  other  five-sixths  in 
similar  terms  to  the  "  children  "  of  five  deceased 
persons.  At  the  date  of  the  will  there  were  no 
children  of  the  sister  living,  but  there  were  two 
grandchildren,  and  these  facts  were  well  known 
to  the  testator.  Both  the  grandchildren  survived 
the  testator  : — Held,  that  the  two  grandchildren 
took  the  one-sixth  given  to  the  "  children "  of 
the  deceased  sister.  Redd  iff e  v.  BuoJUey  (10 
Ves.  196)  distinguished.  Smith,  In  re,  Lord  v. 
Hayward,  35  Ch.  D.  558  ;  66  L.  J.,  Ch.  771  ;  56 
L.  T.  878  ;  36  W.  R.  663— Kay,  J. 

Issue  by  Two  Marriages.] — A  testator,  in 
1877,  left  to  his  trustees  a  sum  of  10,000/.  rail- 


way stock,  in  trust  for  the  "children"  living 
at  his  decease  of  his  deceased  niece  "  Margaret 
Kerr."  Some  years  before  the  date  of  the  will 
the  niece  mentioned  had  married  a  second  time, 
under  circumstances  which  very  much  displeased 
the  testator,  who  had  in  consequence  declined  to 
hold  any  communication  with  her,  and  always 
refused  to  recognise  her  by  any  other  surname 
than  that  of  "  Kerr,"  her  first  husband's.  There 
were  five  children  of  the  first  marriage,  and  one 
of  the  second,  who  survived  the  testator. 
Within  three  weeks  after  the  date  of  the  will  the 
testator  wrote  a  letter  to  one  of  the  five  chil- 
dren of  the  first  marriage,  from  which  it  ap- 
peared that  he  intended  to  confine  the  gift  of 
the  10,000/.  to  them,  as  he  stated  therein  that  he 
had  by  his  will  left  them  2,000/.  each.  He  also 
caused  a  similar  letter  to  be  written  and  sent 
about  four  years  later.  The  testator  died  in 
1883:— Held,  that  the  word  "children"  must 
bear  its  prima  facie  meaning,  so  as  to  include 
the  children  of  both  marriages,  and  that  there 
was  no  latent  ambiguity  as  to  its  signification. 
Andrews  v.  Andrews,  15  L.  R.,  Ir.  199 — C.  A. 

C.  for  life,  and  then  amongst  such  Children 
as  he  should  Appoint — Default  of  Appointment] 

— Leaseholds  were  assigned  to  trustees  upon 
trust,  after  the  decease  of  the  survivor  of  A., 
and  B.,  his  wife,  to  assign  the  same  unto  and 
amongst  such  of  the  children  of  the  said  A.,  and 
B.  his  wife,  then  living,  in  such  manner,  shares, 
times,  and  proportions  as  the  said  A.,  and  B.  his 
wife,  jointly,  or  the  survivor  of  them  separately, 
should  by  any  writing  appoint,  and  in  case  there 
should  be  no  such  child  or  children,  then  upon 
trust  for  C.  for  life,  and  after  his  decease  upon 
trust  to  assign  the  same  unto  and  amongst  such 
of  his  children,  and  in  such  manner,  shares, 
times,  and  proportions,  as  he  should  by  any 
writing  appoint.    A.  and  B.  died  without  issue, 

B.  in  1876,  A.  in  March,  1880.  C.  died  in  1863, 
having  had  ten  children,  of  whom  some  prede- 
ceased him,  and  some  died  between  his  death 
and  the  death  of  A.,  and  the  rest  survived  A. : — 
Held,  that  all  the  children  of  C.  took,  as  tenants 
in  common,  in  equal  shares.  Wilson  v.  Dttguid, 
24  Ch.  D.  244  ;  63  L.  J.,  Ch.  62  ;  49  L.  T.  124  ; 
31  W.  R.  945— Chitty,  J. 

A  power  given  by  will  to  a  tenant  for  life  to 
appoint  to  his  children,  with  an  express  limita- 
tion over  "  in  default  of  such  appointment," 
cannot  be  construed  as  conferring  upon  the 
children  any  estate  or  interest  in  default  of  the 
exercise  of  the  power  of  appointment,  at  least  in 
the  absence  of  provisions  extending  the  operation 
of  the  power.  Jefferys*  Trusts,  In  re  (14  L.  R., 
Eq.  136),  dissented  from  as  to  this  point,  by  Lord 
Esher,  M.R.    Bradley  v.  Cartwright  (2  L.  R., 

C.  P.  511)  explained  and  distinguished,  by 
Cotton,  L.J.    Richardson  v.  Harrison,  16  Q.  B. 

D.  85  ;  55  L.  J.,  Q.  B.  68  ;  54  L.  T.  456— C.  A. 

Gift  per  Stirpes  or  per  Capita.] — A  testator 
gave  some  houses  to  trustees  upon  trust  to  receive 
the  rents  and  to  pay  the  same  in  equal  moieties 
to  his  son  and  daughter  during  their  lives,  and 
after  the  death  of  either  of  them  without  issue 
living,  upon  trust  to  pay  the  whole  thereof  to 
the  survivor  during  the  life  of  such  survivor ; 
but  if  there  should  be  issue  living  of  the  first  of 
them  so  dying,  then  upon  trust  to  pay  one  moiety 
to  the  survivor  and  to  divide  the  remaining 
moiety  between  the  children  of  the  one  so  first 


2027 


WILL — Construction. 


2028 


dying ;  and  after  the  decease  of  the  survivor  of 
the  testator's  children,  on  trust  to  sell  the  pro- 
perty and  to  divide  the  proceeds  equally  amongst 
all  and  every  the  child  or  children  of  each  of 
them  the  testator's  son  and  daughter  who  should 
attain  twenty-one  in  equal  shares  and  propor- 
tions:— Held,  that  the  proceeds  of  sale  were 
divisible  among  the  grandchildren  per  stirpes 
and  not  per  capita.     Campbell's  Trusts,  In  re, 

33  Ch.  D.  98  ;  65  L.  J.,  Ch.  911 ;   55  L.  T.  463  ; 

34  W.  R.  629— C.  A. 

4 'According  to  the  Stocks.' f] — A  testator  gave 
the  income  of  a  trust  fund  to  his  wife  for  her 
life,  and  subject  thereto  the  fund  was  to  be  held 
in  trust  for  such  of  his  cousins  (the  children  of 
four  deceased  aunts  and  two  deceased  uncles  of 
the  testator  named  in  the  will)  living  at  the 
determination  of  the  wife's  life  interest,  and 
such  issue  then  living  (if  any)  of  his  said  cousins 
then  dead  as,  either  before  or  after  the  determi- 
nation of  such  life  interest,  should  attain  twenty- 
one,  or  should  die  under  twenty-one  leaving  issue 
living  at  his,  her,  or  their  death,  to  take  (if  more 
than  one)  in  a  course  of  distribution  according 
to  the  stocks,  and  not  according  to  the  number 
of  individuals.  At  the  time  of  the  death  of  the 
tenant  for  life,  there  were  living  one  cousin  of 
the  testator  (a  child  of  one  of  the  uncles  named 
in  the  will)  and  children  and  other  issue  of 
fifteen  deceased  cousins  (children  of  the  other 
uncle  and  of  the  four  aunts  named  in  the  will)  : 
-*-Held,  that  the  words,  "  according  to  the 
stocks,"  applied  to  the  descendants  of  cousins, 
and  not  to  the  cousins  themselves,  and  that  the 
fund  was  divisible  into  sixteen  shares.  BobiJt~ 
*on  v.  Shepherd  (4  D.,  J.  &  S.  129)  preferred  to 
Gibson  v.  Fisher  (5  L.  R.,  Bq.  1).  Wilson,  In 
re,  Parker  v.  Winder,  24  Ch.  D.  664 ;  53  L.  J., 
Ch.  130— North,  J. 


11.    Survivors. 

Indefinite  Gift  of  Income.] — A  will  contained 
this  clause  :  "  With  regard  to  the  residue  of  my 
estate  my  executors  shall  pay  the  interest  in 
equal  parts  half-yearly  to  my  sons  F.,  E.  and 
A.,  the  share  of  a  predecessor  to  be  equally  divided 
to  the  survivors  or  survivor."  A.  alone  survived 
the  testator : — Held,  that  A.  was  entitled  to  the 
capital  of  the  residue.  Tandy,  In  re,  Tandy  v. 
Tandy,  34  W.  R.  748— C.  A. 

Bequest  to  Legatees  for  Life,  and  on  Death  of 
.'any  without  Child,  Legacy  to  be  divided  amongst 
Survivors.] — A  testator  gave  legacies  to  four 
named  persons  for  their  respective  lives,  and 
•continued,  "the  interest  on  all  these  legacies  is 
to  be  paid  regularly  to  the  respective  parties  as 
it  becomes  due ;  and  in  the  event  of  either  of 
the  parties  dying,  and  without  child  or  children, 
then  the  legacy  of  the  deceased  is  to  be  at  once 
divided  amongst  the  survivors."  The  will  con- 
tained a  residuary  gift.  The  last  survivor  of  the 
four  named  persons  having  died  without  children: 
— Held,  that  his  legacy  fell  into  the  residue. 
KeviU  v.  Boddam  (28  Beav.  554),  and  CobbetVs 
Trusts,  In  re  (Johns.  891),  followed.  Maden  v. 
Taylor  (45  L.  J.,  Ch.  569)  and  Davidson  v. 
Kimpton  (18  Ch.  D.  213)  considered.  Mortimer, 
In  re,  Griffiths  y.  Mortimer,  54  L.  J.,  Ch.  414  ; 
52  L.  T.  383  ;  33  W.  R.  441— Kay,  J. 

A  testator  devised  to  each  of  his  children  an 


estate  for  the  life  of  that  child,  with  remainder 
to  the  children  of  that  child,  and  in  case  any  or 
either  of  the  testator's  children  should  die  with- 
out leaving  any  child  or  children,  him,  her,  or 
them  surviving,  then  the  testator  devised  the 
estates  to  which  their  child  or  children  respec- 
tively would  have  been  entitled  under  his  will, 
if  living,  to  his,  the  testator's,  surviving  children 
for  their  respective  natural  lives,  and  after  their 
deceases  respectively  he  gave  their  respective 
shares  to  their  respective  children,  their  bein, 
executors,  administrators,  and  assigns.  There  was 
no  gift  over  on  the  death  of  all  the  testators 
children  without  leaving  children.  C,  one  of 
the  testator's  children,  died  without  leaving  issue. 
Some  of  the  other  children  were  then  living; 
others  had  died  leaving  children  of  theirs  then 
living : — Held,  that  the  word  "  surviving  "  was 
to  be  read  in  its  proper  sense,  and  that  the 
children  of  those  cnildren  of  the  testator  who 
had  predeceased  C.  took  no  interest  in  the  estate 
of  which  C.  was  tenant  for  life.  Bennt  In  rr, 
Benn  v.  Benn,  29  Ch.  D.  839  ;  53  L.  T.  240 ;  34 
W.  R.  6— C.  A. 

The  fact  that  the  original  shares  are  all  settled 
by  the  will,  and  that  the  shares  which  the  "sur- 
vivors  "  take  in  the  share  of  a  child  who  dies 
without  issue  are  settled  in  the  same  way  as 
their  original  shares,  is  not  by  itself  sufficient 
to  show  that  "  survivors  "  is  used  otherwise  than 
in  its  proper  sense.    lb. 

Cross-remainders — Estates  tail]— A 


testatrix  devised  her  real  estate,  after  the  death 
of  her  daughter,  as  to  one  fourth  part  thereof,  to 
the  use  of  Thomas  (a  son  of  the  daughter)  for 
his  life ;  with  remainder  to  the  use  of  his 
children  as  tenants  in  common  in  tail ;  with 
cross-remainders  in  tail.  The  testatrix  devised 
the  other  three-fourths  of  her  real  estate  npon 
similar  limitations  in  favour  of  the  three  other 
children  of  the  daughters  and  their  issue.  By  a 
codicil  she  directed  that,  in  case  any  of  her 
grandchildren  named  in  her  will  should  die 
without  leaving  any  child  or  children,  then  the 
share  or  shares  of  them,  him,  or  her  so  dying  hi 
the  hereditaments  devised  by  her  will  should  go 
to  and  devolve  on  the  "  survivor  or  survivors 
of  her  grandchildren,  and  the  heirs  of  his,  her, 
or  their  respective  bodies.  One  grandchild  died 
a  spinster.  Then  two  of  the  grandchildren  died 
leaving  children.  Thomas  was  the  last  survrror, 
and  he  died  without  having  had  a  child :— Held, 
that  Thomas  could  not  take  his  own  share  as 
"  survivor,"  that  cross-remainders  were  to  be 
implied  between  the  four  grandchildren,  or  else 
the  words  "survivor  or  survivors"  were  to  he 
construed  "other  or  others,"  and  that  conse- 
quently Thomas's  shares  devolved,  on  his  death 
without  having  had  a  child,  upon  the  two  grand- 
children (who  left  children)  equally  as  tenants 
in  common  in  tail.  Asheto  v.  Askew,  57L.J* 
Ch.  629 ;  58  L.  T.  472  ;  36  W.  R.  620— North,  J. 

To  what  Event  Referable.]— A  testator  by  his 
will  gave  all  his  real  and  personal  estate  remain- 
ing after  payment  of  debts,  &c,  to  J.  S.  for  life, 
and  at  her  decease  he  gave  the  same  to  M.  i. 
and  W.  A.  "  if  they  are  both  living  at  the  time 
of  her  decease,  and  in  case  of  the  death  of  either 
of  them  before  J.  S.,"  he  gave  "  the  whole  to 
the  survivor  of  them  for  their  own  use  and 
benefit  absolutely."    The  testator  died  seised  of 


3029 


WILL — Construction. 


20S0 


Mil  estate ;  after  the  testator's  death  W.  A.  died, 
then  M.  A,  and  J.  S.  last  of  all :— Held,  that 
upon  the  true  construction  of  the  will  the  word 
"  reiriyor  "  in  the  ultimate  gift  meant  the  sur- 
vivor of  M.  A.  and  W.  A.  living  at  the  death  of 
J.  S.  the  tenant  for  life ;  that  since  M.  A.,  thongh 
shesurwed  W.  A.,  had  pro-deceased  J.  S.,  she 
had  not  come  within  the  terms  of  the  ultimate 
gift,  and  that  upon  the  death  of  J.  S.,  there  was 
an  intestacy  as  to  the  property  given  by  the  will, 
and  the  real  property  consequently  passed  to 
hia  heir-at-law.     Bill  to  Chapman,  In  re,  54 
L.  J.,  Ch.  595 ;  52  L.  T.  290 ;  33  W.  R.  570— 
CIA. 

A  testator  devised  copyholds,  subject  to  life 
interests,  to  his  cousins  A.  and  B.,  their  heirs  and 
assigns,  as  tenants  in  common ;  but  if  either 
should  die  in  the  lifetime  of  the  tenants  for  life, 
and  without  having  lawful  issue  then  living,  he 
devised  her  share  to  the  survivor  of  them,  her 
heire  and  assigns.  A.  died,  leaving  issue  ;  then 
B.  died  without  issue  ;  afterwards  the  tenant  for 
life  died :— Held,  that  B.'s  share  went  to  A.'s 
representative,  though  A.  did  not  survive  B. 
Johnson,  In  re,  Hickman  v.  Williamson,  58  L.  J.f 
Ch.1116-V.-CB. 

After  two  successive  life  estates,  a  testator 
derised  freehold  houses  (which  were  sub-demised) 
to  "  J.  S.,  and  W.  S.,  or  the  survivor  of  them.  The 
A.  Street  front  to  go  to  J.  S.,  the  H.  Street  front 
to  W.  S.j  and  an  equal  portion  of  the  back- 
ground to  go  to  each  tenement  after  the  lapse  of 
the  present  lease,  whatever  time  the  holding 
becomes  the  property  of  J.  S.,  and  W.  8. ;  provided 
the  lease  now  in  existence  has  not  terminated  ; 
the  rent  to  be  divided  equally  between  them, 
after  paying  the  chief  rent,  until  the  fall  of  said 
lease :  "—Held,  that  the  survivorship  was  to  be 
referred  to  the  determination  of  the  tenancies 
for  life,  and  therefore,  J.  S.,  who  had  then  sur- 
vived W.  S.,  was  entitled  to  the  houses.  Belfast 
town  Council,  In  re,  Savers.  Ex  parte,  13  L.  R., 
&.169-M.R. 

Younger  Children— After-born  Child.]— A  tes- 
tator by  his  will  directed  that  his  four  children 
should  be  made  wards  of  court,  and,  having  made 
provisions  for  maintenance,  and  bequeathed  pecu- 
niary legacies  to  his  younger  children,  appointed 
his  eldest  son,  W.,  residuary  legatee  and  devisee, 
and  directed  as  follows  : — "  In  case  of  any  of 
toe  younger  children  dying  before  they  attain  the 
age  of  twenty-one  years  or  leaving  legitimate 
i*ne,  I  direct  their  portion  or  portions  to  be 
divided  among  the  survivors,  share  and  share 
alike  ;  and  failing  all  my  own  children,  1  devise 
the  whole  of  my  property  to  the  children  of  my 
sister,"  &c    The  testator  left  four  children,  all 
minors,  him  surviving ;  namely,  W.,  his  eldest 
son,  and  J.f  R.  and  H.    At  the  time  of  the  death 
of  the  testator,  his  widow  was  enceinte  of  a 
child,   C,    who   was  born  after  the  testator's 
death,    R.,  one  of  the  children,  having  died 
nnder  twenty-one  and  unmarried : — Held,  that 
W.,  the    eldest   son,  and    C.  the  posthumous 
child,  were  not  entitled,  upon  the  construction 
of  the  will,  to  any  share  of  the  legacy  be- 
queathed to  R.     Wallis  v.  WaUis,  13  L.  R.,  Ir. 
25&-V.-C. 

iii.    Executors. 

Gift  to  A.,  and  on  his  death  to  his  Executors.] 
— A  gift  in  a  will  to  A.,  and  in  case  of  his  death 


to  his  executors  or  administrators,  passes  to  the 
legatee's  personal  representative  as  part  of  his 
personal  estate.  Palin  v.  Sills  (1  Myl.  &  K. 
470)  overruled.  Clay,  In  re,  Clay  v.  Clay,  54 
L.  J.,  Ch.  648 ;  52  L.  T.  641— C.  A.  Affirming 
32  W.  R.  616— Chitty,  J. 

Residuary  Gift  by  one  of  Legatees  to 


Testator.]— A  testator  made  a  general  bequest 
to  two  persons,  and  in  case  of  their  decease  to 
their  executors  and  administrators.  Both  the 
legatees  died  in  the  testator's  lifetime,  one  of 
them  having  bequeathed  to  the  testator  the 
residue  of  her  property,  which  included  the  share 
of  the  testator's  property  which  passed  to  her 
representative : — Held,  that  this  snare  was  not 
to  be  treated  as  forming  part  of  the  testator's 
estate,  and  so  distributed  again  under  his  will, 
but  went  to  his  next-of-kin  as  undisposed  of. 
Valdez*  Trusts,  In  re,  40  Ch.  D.  159 ;  60  L.  T.  42 ; 
37  W.  R.  162— Kay,  J. 

Gift  annexed  to  Office — Rebuttal  of  Presump- 
tion.]— The  mere  fact  that  the  gift  of  the  legacy 
precedes  the  appointment  of  the  legatee  as 
executor— or  that  the  legacies  to  several  persons 
appointed  executors  differ  either  in  their  amount 
or  subject-matter — is  not  enough  by  itself  to 
rebut  the  presumption,  that  a  legacy  given  to  a 
person  who  is  appointed  executor  is  annexed  to 
the  office.  Jervis  v.  Lawrence  (8  L.  R.,  Eq.  345) 
questioned.  Wildes  v.  Da  vies  (1  Sm.  &  Giff.  475) 
explained.  Appleton,  In  re,  Barber  v.  Tebbit, 
29  Ch.  D.  893  ;  54  L.  J.,  Ch.  964  ;  62  L.  T.  906  ; 
49  J.  P.  708— C.  A. 

A  testator  bequeathed  the  lands  of  K.  (build- 
ing ground)  to  his  son  F.  J.  N.,  whom  he  ap- 
pointed executor.  He  directed  the  land  to  be 
built  on  according  tp  certain  plans,  with  power 
to  F.  J.  N.  to  alter  them,  and  power  to  make 
building  leases.  He  appropriated  the  rents  of 
the  lettings  for  building  and  of  other  property 
for  carrying  out  his  general  trust,  which  he  did 
not  clearly  define,  and  gave  his  executors  duties 
to  perform  of  a  continuing  character,  to  keep  the 
furniture  and  the  house  in  which  he  had  resided 
for  his  daughters  and  sisters-in-law,  and  supply 
the  latter  with  clothes  and  pocket-money ;  and 
to  continue  to  carry  on  a  certain  business  in 
which  he  had  himself  been  engaged,  &c.: — Held, 
that  the  lands  of  E.  were  bequeathed  to  F.  J.  N. 
as  executor,  and  not  beneficially.  Nugent  v. 
Nugent,  15  L.  R.,  Ir.  321  —  M.  R.  See  also 
Bacon's  Will,  In  re,  ante,  col.  2017,  and  Croome 
v.  Croome,  ante,  col.  2021. 


iv.    Next  of  Kin. 

"Next  Male  Kin."]— C.  devised  the  rents  of 
certain  real  estate  to  nis  wife  for  life,  and  after 
her  death  in  certain  proportions  to  H.  and  G. 
during  their  lives,  and  in  the  event  of  either 
dying,  the  deceased's  share  to  revert  to  the  next 
male  kin : — Held,  that  next  male  kin  must  be 
taken  to  mean  those  of  the  testator's  next  of  kin 
at  his  death  who  were  males.  Chapman,  In  re, 
Ellich  v.  Cox,  49  L.  T.  673 ;  32  W.  R.  424— 
North,  J. 

Next  of  Kin  of  Wife— Time  for  ascertaining.] 
— A  testator  by  his  will  directed  that  the  shares 
of  his  daughters  in  his  residuary  estate  should 
be  settled,  the  ultimate  limitation,  in  case  a 
daughter  should  not  leave  any  child  or  children 


2081 


"WILL — Construction . 


2032 


who  should  be  living  at  the  decease  of  the  sur- 
vivor of  herself  and  her  husband,  being  in  trust 
for  the  person  or  persons  who,  under  the  Statutes 
of  Distribution,  "would  on  her  decease  have 
been  entitled  thereto  in  case  she  having  survived 
her  husband  and  had  then  died  possessed  thereof 
and  intestate."  A  daughter  having  died  without 
issue,  leaving  her  husband  surviving : — Held, 
that  her  next  of  kin  to  take  under  the  ultimate 
limitation  were  to  be  ascertained  at  the  time  of 
her  own  death,  and  not  at  the  time  of  the  death 
of  her  husband.  Chalmers  v.  North  (28  Beav. 
175)  disapproved.  Druitt  v.  Seaward,  31  Ch.  D. 
234  ;  55  L.  J.,  Ch.  239 ;  53  L.  T.  954  ;  34  W.  R. 
180—Pearson,  J. 


v.    Representatives. 

Gift  to  Legatee!  or  their  respective  "Legal 
Personal  Representatives."]— A  testatrix,  who 
died  in  1885,  by  her  will  dated  in  1884,  after 
bequeathing  certain  specific  legacies,  gave  all 
her  real  and  residuary  personal  estate  to  her 
trustees  upon  trust  to  convert  and  to  stand 
possessed  of  the  proceeds  to  pay  the  legacies 
ollowing,  which  she  thereby  bequeathed  to  the 
persons  thereinafter  mentioned  "  or  to  their  re- 
spective legal  personal  representatives."  Then 
followed  numerous  legacies.  The  testatrix  dis- 
posed of  the  residue  of  her  property  by  giving  it 
to  each  of  several  persons  named  "  or  the  legal 
personal  representatives"  of  such  of  them  re- 
spectively as  might  then  be  dead  or  should  die 
in  her  lifetime.  In  the  commencement  of  the 
will  the  testatrix  had  made  a  specific  bequest  of 
certain  portraits  to  a  legatee  there  named,  "  or 
to  his  executors  or  administrators."  One  of  the 
pecuniary  legatees  having  died  in  the  lifetime  of 
the  testatrix,  the  question  was  who  was  entitled 
to  his  legacy  under  the  words  "  legal  personal 
representatives "  : — Held,  that  the  prima  facie 
meaning  of  "legal  personal  representatives"  was, 
executors  or  administrators ;  but  that  there  was 
reason  here  for  departing  from  the  prima  facie 
meaning  of  the  words,  because  the  testatrix  had, 
in  one  instance,  used  the  words  executors  or 
administrators  in  a  similar  alternate  gift,  and  it 
was  legitimate  to  infer  a  change  of  meaning 
where  different  words  were  used  :— Held,  there- 
fore, that  the  legacy  belonged  to  the  next  of  kin 
of  the  deceased  legatee  ;  and  that  such  next  of 
kin  were  to  be  those  who  would  have  been  next 
of  kin,  according  to  the  Statutes  of  Distribution, 
if  the  legatee  had  died  at  the  time  of  the  death 
of  the  testatrix.  Thompson,  In  re,  Mochell  v. 
Newman,  65  L.  T.  85 — Kay,  J. 

Gift  to  * '  Personal  Representatives  "  of  Children 
'•per  stirpes."]— A  testatrix,  who  died  in  1827, 
by  her  will,  dated  in  1815,  devised  to  her  trustees 
therein  named  certain  freehold  hereditaments 
upon  trust  to  apply  the  rents  and  profits  thereof, 
in  the  first  place,  towards  the  discharge  of  certain 
debts  and  her  funeral  and  testamentary  expenses, 
and  then  to  pay,  apply,  appropriate,  and  divide 
all  and  every  such  rents  and  profits  unto  and  for 
the  equal  benefit  and  advantage  of  all  her  chil- 
dren and  their  respective  families  from  time  to 
time  so  long  as  any  of  her  children  should  live  ; 
and  from  and  after  the  death  of  the  youngest 
liver  of  her  children,  upon  further  trusts,  and 
she  did  thereby  order  and  direct  the  heirs  of 
her   surviving  trustee   to  sell  and  absolutely 


dispose  of  all  her  said  real  estate,  and  the 
moneys  arising  from  such  sale  or  sales  to  pay 
and  divide  unto  and  equally  amongst  all  and 
every  the  "personal  representatives"  of  her 
several  children  per  stirpes: — Held,  that  the 
words  "personal  representatives"  here  meant 
the  descendants  of  the  testatrix's  children ;  and 
that  the  issue  living  at  the  testatrix's  death,  and 
born  before  the  death  of  the  last  surviving  child 
of  the  testatrix,  were  entitled  to  share  per  stirpes. 
Knowlrt,  In  re,  Rainford  v.  Knowles,  59  L.  T. 
369— Kay,  J. 

"  Representatives  "  of  Children.]— A  testator 
by  his  will,  dated  in  1868,  directed  his  trustees 
to  pay  the  income  of  a  certain  share  in  a  trust 
fund  "  to  my  sister  Charlotte,  the  wife  of  Thomas 
H."  during  her  life,  and  after  her  death  to  pay 
and  divide  the  share  unto,  between  and  amongst 
"  all  her  children  "  who  should  be  living  at  her 
death,  and  the  "representatives"  of  such  of 
them  as  should  have  died  in  her  lifetime  who 
should  have  attained  twenty-one,  equally  share 
and  share  alike : — Held,  that  the  word  "  repre- 
sentatives" in  the  gift  must  be  construed  either 
as  "  next  of  kin  "  or  as  "  descendants,"  and  not 
as  "executors  or  administrators."  Horntr,  In 
re,  Eagleton  v.  Horner,  37  Ch.  D.  695 ;  67 
L.  J.,  Ch.  211  ;  58  L.  T.  103 ;  36  W.  R.  34&- 
Stirling,  J. 

vi.  Wife. 

Divoroe.] — A  testator  left  shares  in  his  resi- 
duary estate  in  trust  for  his  sons  for  life,  and 
from  and  after  the  decease  of  each  son,  in  trust 
to  permit  any  wife  of  such  son  to  receive  the 
income  of  his  share  during  her  life.  One  of  the 
sons  married,  was  divorced  from  his  wife  and 
died : — Held,  that  the  divorced  wife  was  not 
entitled  to  the  life  interest  in  his  share.  Bull- 
more  v.  Wynter  (22  Ch.  D.  619)  disapproved. 
mtchins  v.  Morrieton,  40  Ch.  D.  30 ;  68  L  J.. 
Ch.  80  ;  69  L.  T.  847  ;  37  W.  R.  91— Kay,  J. 

"My  Wife  "—Former  Wife  alive.]— A  testator 
bequeathed  the  residue  of  his  property  to  "my 
wife."  He  had  separated  from  his  wife  by 
mutual  consent,  and  in  her  lifetime  went  through 
the  ceremony  of  marriage  with  another  woman 
whom  he  always  treated  as  his  wife : — Held,  that 
the  second  "  wife  "  took  under  the  words  "  my 
wife."  Howe,  In  goods  of,  33  W.  R.  48 ;  48  J.  P. 
743— Butt,  J. 

"  So  long  as  she  shall  oontinue  my  Widow  aid 
Unmarried  " — Nullity.] — A  testator,  after  giving 
a  legacy  of  200/.  to  his  wife,  directed  bis  trustee* 
"in  addition  thereto  to  pay  to  my  said  wife,  so  Ion? 
as  she  shall  continue  my  widow  and  unmarried, 
an  annuity  of  300/.,  or  otherwise  in  lieu  and  in 
substitution  of  the  said  annuity,  at  the  option  of 
my  said  wife,  if  she  shall  prefer  it,  a  legacy  of 
2,000/."  After  the  date  of  the  will  the  niarriage 
was  declared  null  by  the  Divorce  Court  in  a  suit 
brought  by  the  wife  against  the  testator.  After 
this  the  testator  died  leaving  the  lady  surviving. 
Fry,  J.,  held  that  she  was  entitled  to  the  legacy 
of  200/.,  but  she  was  not  entitled  either  to  the 
annuity  or  the  2,000/.  She  appealed  from  th» 
decision  so  far  as  it  was  unfavourable  to  her:— 
Held,  that  although  if  the  lady  had  been  the 
testator's  wife  at  his  decease  the  words  **  shall 
continue  my  widow  and  unmarried,"  might  ha*e 
been  in  substance  the  same  as  "shall  continue 


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WILL — Construction. 


2084 


unmarried,"  the  reference  to  widowhood  could 
not  on  that  ground  be  treated  as  surplusage,  but 
was  the  principal  part  of  the  condition,  and  that, 
as  the  lady  did  not  at  the  testator's  death  fill  the 
position  of  the  testator's  widow,  she  could  not 
take  the  annuity.  Held,  further,  that  she  could 
not  take  the  2,000Z.,  for  that  an  option  to  take 
a  legacy  instead  of  an  annuity  could  not  exist  if 
there  was  no  right  to  take  the  annuity ;  and, 
moreover,  that  a  gift  by  way  of  substitution  for 
another  is  subject  to  the  same  conditions  as  the 
original  gift.  Rishton  v.  Cobb  (5  My.  &  Cr.  145) 
doubted.  Boddington,  In  re,  Boddington  v. 
Clairat,  25  Ch.  D.  685 ;  53  L.  J.,  Ch.  475 ;  50 
L.  T.  761 ;  32  W.  R.  448— C.  A. 


vii.  Cousins. 

Who  answer  Description.]— A  testatrix  gave  a 
share  of  her  residue  to  her  "cousin,  Harriet 
Cloak."  She  had  no  cousin  of  that  name,  but 
she  had  a  cousin,  T.  Cloak,  whose  wife's  name 
was  Harriet : — Held  (Bowen,  L.  J.,  dissenting), 
that "  cousin  "  might  be  understood  in  a  popular 
sense  as  the  wife  of  a  cousin  ;  and  that  Harriet, 
the  wife  of  T.  Cloak,  was  entitled  to  the  share  of 
the  residue.     Taylor,  In  re,  Cloak  v.  Hammond, 

34  Ch.  D.  255  ;  56  L.  J.,  Ch.  171 ;  56  L.  T.  648  ; 

35  W.  R.186— C.A. 

A  testator  gave  the  residue  of  the  proceeds 
of  the  sale  of  his  real  and  personal  estate 
equally  between  all  such  of  his  first  and  second 
cousins,  including  his  "  reputed  cousin  "  A.  B., 
and  his  children,  or  reputed  children,  and  the 
children  of  his  "reputed  cousin  "  S.  G.  as  should 
he  living  at  the  time  of  the  determination  of 
two  life  interests  given  by  the  will,  and  directed 
that  if  the  said  A.  B.  should  be  then  dead, 
the  share  to  which  he  would  have  been  entitled 
if  then  living  should  be  divided  amongst  his 
then  surviving  children.  By  a  codicil  he  gave 
a  legacy  "to  each  of  my  cousins"  J.  B.  and 
G.  C,  in  addition  to  any  sum  to  which  they 
might  be  entitled  under  his  wilL  The  testator 
had  no  second  cousins  either  at  the  date  of 
Ms  will  or  his  death.  He  had  at  his  death 
first  cousins,  first  cousins  once  removed,  and 
first  cousins  twice  removed.  A.  B.  and  8.  G. 
would,  if  legitimate,  have  been  his  first  cousins. 
J.  B.  and  G.  C.  were  his  first  cousins  once 
removed : — Held,  that  the  persons  to  take  were 
the  testator's  first  cousins,  and  first  cousins  once 
removed.  Wilks  v.  Bannister,  30  Ch.  D.  512  ; 
54  L.  J.,  Ch.  1139  ;  53  L.  T.  247  ;  33  W.  R.  922 
—Kay,  J. 

viii.  Heirs. 

Gift  of  Heal  and  Personal  Estate  together.  ] 
—A  testator  gave,  devised  and  bequeathed  to 
his  wife  all  his  property,  real  or  personal,  on 
trust  for  herself  for  her  life,  and  after  her  death 
the  whole  of  his  property  was  to  be  equally 
divided  among  all  his  children, "  or  such  of  them 
as  may  be  then  surviving,  or  their  heirs."  The 
testator  had  five  children,  all  of  whom  survived 
him.  Of  these  children  two  daughters  died 
before  the  wife,  leaving  children: — Held,  that 
the  word  **  heirs  "  had  a  twofold  meaning,  viz. : 
heir-at-law  as  regarded  the  real  estate,  and  next 
of  kin  as  regarded  the  personalty.  Held,  also, 
that  the  property  was  divisible  in  fifths — each 
surviving  child  of  the  testator  taking  one-fifth, 


and  the  heir-at-law  and  next  of  kin  of  each 
deceased  daughter  taking  between  them  (ac- 
cording to  the  nature  of  the  estate)  one-fifth 
share.  Wingfield  v.  Wingfield  (9  Ch.  D.  658) 
followed.  Smith  v.  Butcher  (10  Ch.  D.  113) 
distinguished.  Keay  v.  Boulton,  25  Ch.  D.  212 ; 
54  L.  J.,  Ch.  48  ;  49  L.  T.  631 ;  32  W.  R.  591— 
Pearson,  J. 

Personalty  —  Life  Estate.]  —  Testator  be- 
queathed his  residuary  estate  to  his  wife  for  life, 
his  will  continuing  as  follows  :  "  And  after  the 
death  of  my  said  wife,  1  give  unto  my  sister 
M.  H.,  the  wife  of  J.  H.,  the  sum  of  1,0002. 
sterling,  the  same  to  become  the  property,  at  her 
death,  of  her  heirs."  J.  H.  survived  M.  H.  (who 
died  without  issue),  and  by  his  will  bequeathed 
the  1,000Z.  given  to  M.  H.  to  X.  and  Z.  on  the 
subsequent  death  of  the  testator's  widow: — 
Held,  that  the  1,000?.  bequeathed  to  M.  H. 
belonged  to  J.  F.,  who  was  her  heiress  and  next 
of  kin,  and  not  to  X.  and  Z.  Russell,  In  re,  52 
L.  T.  559— C.  A.  Reversing  53  L.  J.,  Ch.  400— 
Kay,  J. 

Ix.  In  Other  Cases. 

"Other  Sons"— "To  be  Begotten M— Eldest 
Son  excluded.] — Testator  devised  his  mansion- 
house  successively  to  his  second  and  third  sons, 
F.  L.  and  J.  L.f  for  life,  with  remainder  to  their 
sons  in  tail  male,  and  then  to  the  use  of  his 
fourth,  fifth,  and  all  and  every  other  the  son  and 
sons  of  his  body  on  the  body  of  his  wife  to  be 
begotten,  born,  or  en  ventre  sa  mere  at  the  time 
of  his  decease,  severally,  successively,  and  in 
remainder  one  after  another  in  seniority  of  age 
and  priority  of  birth,  and  of  the  several  and 
respective  heirs  male  of  the  body  and  bodies  of 
all  and  every  such  son  and  sons  lawfully  issuing, 
the  elder  of  such  son  and  sons  and  the  heirs 
male  of  his  body  to  be  always  preferred,  and  to 
take  before  the  younger  of  such  6on  and  sons 
and  the  heirs  male  of  his  and  their  body  and 
bodies  issuing,  and  for  default  of  such  issue  to 
the  use  of  the  testator's  daughters,  begotten  or 
to  be  begotten,  as  tenants  in  common  in  tail. 
The  will  also  provided  for  portions  for  the 
testator's  children  other  than  his  three  eldest 
sons,  "who  are  otherwise  provided  for."  The 
will  contained  no  provision  for  the  eldest  son, 
but  he  was  entitled  to  other  family  estates  in 
remainder  upon  the  death  of  the  testator. 
The  testator  died  leaving  three  sons  and  five 
daughters,  all  of  whom  were  in  esse  at  the  date 
of  the  will.  The  limitations  to  the  second  and 
third  sons  and  their  issue  having  failed,  the 
eldest  son  claimed  an  estate  tail  under  the  devise 
to  the  fourth,  fifth,  and  other  sons  : — Held,  that 
he  was  not  entitled.  Locke  v.  Dunlop,  39  Ch.  D. 
387  ;  57  L.  J.,  Ch.  1010 ;  59  L.  T.  683— C.  A* 
Affirming  36  W.  R.  41— Stirling,  J. 

"  Eolations  hereafter  named  "—Names  omit- 
ted.]— A  testator  by  his  will,  dated  in  1861  r 
devised  and  bequeathed  all  his  property  to  his 
wife  for  life,  and  after  her  death  he  directed  it 
to  be  divided  amongst  his  "relations  hereafter 
named/'  No  relations  were  named  in  the  will, 
and  the  testator's  heir-at-law  claimed  on  the 
ground  that  there  was  an  intestacy : — Held,  that 
the  word  "  named  "  must  be  taken  in  its  plain 
sense,  indicating  an  intention  to  specify  certain 
relations ;  and  that  as  the  testator  had  not  done 


2085 


WILL — Construction. 


2086 


so  there  was  an  intestacy,  and  the  heir-at-law 
was  entitled  to  the  real  estate.  Crampton  v. 
Wite,  58  L.  T.  718— Chitty,  J. 

"  Unmarried."] — Although  the  word  "  unmar- 
ried "  is  one  of  flexible  meaning,  and  may  mean 
either  "never  having  been  married,"  or  "not 
having  a  husband  *'  at  the  time  when  a  gift  is  to 
take  effect,  the  former  is  the  primary  or  natural 
meaning,  and,  in  the  absence  of  any  context 
showing  a  different  intention,  the  word  will  be 
so  construed.  Sergeant,  In  re,  Me r tent  v.  WaUey. 
26  Ch.  D.  575  ;  54  L.  J.,  Ch.  159  ;  32  W.  R.  987 
— Pearson,  J. 

"Sole  and  Unmarried'1 — Divoroe.J — A  testa- 
trix, by  her  will  made  in  1860,  bequeathed  a 
fund  to  trustees,  on  trust  to  pay  the  income  to 
her  husband  for  his  life,  and  on  his  death  to  divide 
the  fund  into  four  equal  parts,  and,  as  to  one  of 
the  parts,  "  upon  trust  to  pay  the  same  to  J.  H., 
spinster,  if  she  be  then  sole  and  unmarried,  but, 
if  she  be  then  married,"  the  testatrix  directed 
her  trustees  to  pay  the  income  of  the  fourth  part 
to  J.  H.  for  her  life,  for  her  separate  use,  and 
after  her  death  to  hold  it  on  trust  for  her  children. 
In  June,  1878,  the  testatrix  died,  and  her  husband 
died  in  April,  1883.  In  April,  1861,  J.  H. 
married,  and  in  November,  1878,  a  decree  abso-  j 
lute  was  made  for  the  dissolution  of  her  marriage. 
There  were  three  children  of  the  marriage.  J.  H. 
did  not  marry  again  : — Held,  that  the  words 
"  then  sole  and  unmarried  "  meant  "  not  having 
a  husband"  at  the  time  of  the  death  of  the 
tenant  for  life,  and  that  in  the  events  which  had 
happened,  J.  H.  was  absolutely  entitled  to  the 
one-fourth  share.  Lesinghamts  Trusts,  In  re,  24 
Ch.  D.  703  ;  53  L.  J.,  Ch.  333  ;  49  L.  T.  235  ;  32 
W.  R.  116— North,  J. 

<  *  Died  Intestate  without  having  ever  bean 
Married."] — A  testator,  by  his  will  dated  in 
1883,  after  disposing  of  a  sum  of  20,0002.  in 
favour  of  his  son  and  others,  made  an  ultimate 
gift  of  that  sum  to  the  persons  who  would  be  the 
next  of  kin  of  his  (the  testator's)  late  mother  if 
she  had  "died  intestate  without  having  ever 
been  married."  The  trustees  of  the  will  paid 
the  20,0002.  into  court  under  the  Trustee  Relief 
Acts.  In  the  events  which  happened  the  whole 
of  the  fund  was  claimed  by  the  first  cousin  once 
removed  of  the  testator's  mother.  She  had  died, 
leaving  one  lineal  descendant  only,  who  opposed 
the  claims  of  her  first  cousins  once  removed : — 
Held,  that  the  words  "died  intestate  without 
ever  having  been  married  "  were  clear  and  un- 
ambiguous ;  and  that  effect  must  be  given  to 
them  by  directing  that  the  lineal  descendant  of 
the  testator's  late  mother  was,  by  the  terms  of 
the  bequest,  excluded  in  favour  of  her  collateral 
next  of  kin.  Watsoris  Trusts,  In  re,  55  L.  T. 
316— Chitty,  J. 

Testator1!  "  Family."]— A  testator  by  his  will 
appointed  two  trustees,  and  directed  that  all 
moneys  due  to  him  should  be  collected  and 
placed  to  his  trustees'  account  at  a  certain  bank, 
in  trust  for  his  "family" : — Held,  that  there  was 
nothing  in  the  context  of  the  will  to  deprive  the 
word  "family"  of  its  primary  meaning,  i.e., 
children  of  the  testator ;  and  that,  therefore, 
such  children  alone  were  entitled  to  share  in  the 
money  in  the  bank.  Muffett,  In  re,  Jones  v. 
Mason,  55  L.  T.  671— Chitty,  J. 


"  Household  Servants  "  confined  to  Doaustfo 
Servants.] — A  testator  gave  to  each  of  his 
"  household  servants1 '  who  should  have  been  in 
his  service  for  one  year  previously  to  his  death 
six  months'  wages,  free  of  legacy  duty  in  ad- 
dition to  the  ordinary  wages  that  might  be  due 
to  him  or  her  respectively.  The  servants  who 
had  been  in  the  testator's  service  the  requisite 
time,  in  addition  to  the  maid  servants  resident 
in  the  house,  were  a  coachman  who  lived  in  a 
cottage  adjoining  the  pleasure  grounds,  a  groom 
who  occupied  a  room  over  stables  in  the  park 
and  close  to  the  house,  and  another  groom  who 
also  occupied  a  room  over  the  stables :— Held, 
that  household  servants  had  the  same  meaning 
as  domestic  servants,  and  that  the  coachman  and 
grooms  were  not  entitled  to  the  gift  Ogle  v. 
Morgan  (1  D.  M.  &  G.  359)  followed.  Drax,  In 
re,  Savile  v.  Yeaiman,  57  L.  T.  475 — Kay,  J. 

"  To  Servants  in  my  Service  and  to  my 
Gardener."] — A  testator,  who  died  in  1883,  by 
his  will,  dated  in  1876,  gave  legacies  to  his 
servants,  in  the  following  terms :  "  To  each  of 
my  servants,  who  shall  at  my  death  have  been 
in  my  service  twelve  calendar  months,  or 
longer,  one  year's  wages,  in  addition  to  any- 
thing  owing  by  me,  and  to  my  gardener,  Peter 
Grieve,  300Z.  in  addition."  In  1880  PeterGrieve, 
who  had  been  in  the  testator's  service  for  over 
thirty  years,  relinquished  his  situation,  and  when 
he  did  so  the  testator  sent  him  100Z.  The  ques- 
tion was  whether  Peter  Grieve  was  entitled  to 
the  legacy  of  3002. :— Held,  that  the  words" and 
to  my  gardener,"  &c,  were  governed  by  the 
condition  that  the  servant  should  have  been  in 
the  testator's  service  during  twelve  months  pre- 
ceding the  testator's  death,  and  as  Peter  GrieTe 
had  not  fulfilled  that  condition  he  was  not 
entitled  to  the  legacy.  Benyon,  In  re,  Be*f** 
v.  Grieve,  53  L.  J.,  Ch.  1166  ;  51  L.  T.  116;  33 
W.  R.  871— Kay,  J. 

' '  Office  and  Warehouse  Employes."}— Testator, 
by  his  will,  bequeathed  as  follows :  "  My  office 
and  warehouse  employes,  such  as  clerks  and 
workmen,  shall  have  to  receive  six  months1  foil 
salary  "  : — Held,  that  the  persons  to  take  were 
the  employes  in  the  service  of  the  testator  at 
the  time  of  bis  death.  Marcus,  In  re,  Mareu 
v.  Marcus,  56  L.  J.,  Ch.  830 ;  57  L.  T.  3»- 
North,  J. 

Gift  to  a  Peer.] — A  testator  bequeathed  a 
silver  cup  to  Lord  S.  and  his  heirs  for  an  heir- 
loom. The  person  who  was  Lord  S.  at  the  date 
of  the  will  died  before  the  testator  leaving  a 
successor  to  the  title  : — Held,  that  the  bequest 
lapsed.  Whorwood,  In  re,  Ogle  v.  Skerbom 
(Lord),M  Ch.  D.  446;  56  L.  J.,  Ch.  340;  56 
L.  T.  71  ;  35  W.  R.  342— C.  A. 

Person  entitled  to  Possession  of  K.  Hon*}— 
Testator  bequeathed  a  collection  of  books,  manu- 
scripts and  pictures  to  his  executors  to  hold  as 
heirlooms,  and  suffer  the  same  to  be  used  and 
enjoyed  by  the  person  who  for  the  time  being 
under  the  limitations  of  "a  certain  deed  of 
entail  bearing  date  day  of  shall  he 

entitled  to  the  possession  of"  M.  House,  At 
the  testator's  death  there  was  no  such  deed  of 
entail  as  described  in  the  will  in  existence,  and 
the  testator  was  entitled  to  the  house  absolutely 
in  fee  simple  :— Held,  that  the  collection  be- 


3087 


WILL — Construction. 


2088 


longed  to  tbe  heir-at-law  of  the  testator,  as  the 
person  entitled  in  possession  to  M.  House.  Bute 
(Marquis').  In  re,  Bute  (Marguu)  v.  Ryder, 
27  Ch.  D.  196 ;  53  L.  J.,  Ch.  1090 ;  32  W.  R. 
996-V.-C.  B. 

Bequests  to  Charities.] — See  Chabity. 

Attesting  Witness.]— See  ante,  col.  2003. 

Solicitor— Direction  to  charge  for  work  done.] 

— See  ante,  col.  2002. 

b.  Gift  to  a  Class. 

Artificial  Class — Exclusion  of  Named  Per- 
sons.]—  Certain  property  was  bequeathed  by 
will  to  be  held  by  trustees,  in  events  which  hap- 
pened, "  in  trust  for  such  person  or  persons  as 
under  the  statutes  for  the  distribution  of  the 
estates  of  intestates  shall,  exclusive  of  my  said 
daughter  C.  L.,  and  of  my  said  grandchild  C.  6. 
and  her  issue  (if  any),  then  be  my  next  of  kin  ; 
such  persons,  if  more  than  one,  to  take  in  equal 
shares  as  tenants  in  common."  When  the  events 
happened,  there  were  living  the  above-named 
daughter  and  grandchild,  and  a  sister  of  the 
testator,  and  two  nephews,  sons  of  his  deceased 
brother  : — Held,  that  the  effect  of  the  will  was 
to  exclude  the  daughter  and  grandchild,  and  that 
the  sister  and  nephews  took  in  equal  shares  per 
capita.  Taylor,  In  re,  Taylor  v.  Ley,  52  L.  T. 
839-C.  A. 

Bequest  to  such  Children  as  attain  Twenty- 
one.] — Bequest  of  residue  "  in  trust  for  my  son 
George,  my  daughters  Lydia,  Mary  Ann,  Alice, 
and  Frances,  and  such  of  my  child  or  children, 
if  any,  hereafter  to  be  born,  as  shall  attain  the 
age  of  twenty-one  years  or  marry,  in  equal 
shares  as  tenants  in  common,  but  subject,  as  to 
the  share  of  any  daughter,  whether  now  living, 
or  a  child  hereafter  to  be  born,  to  the  trusts 
following  ;"  the  share  of  "such daughter"  being 
settled.  The  testator  had  six  children  only,  the 
five  named  and  one  other,  all  of  whom  had  at- 
tained twenty-one  at  the  date  of  the  will.  Of 
the  named  children,  two  died  in  the  testator's 
lifetime  without  issue,  and  three  survived  him : — 
Held,  that  the  five  named  children  took  as  a  class 
and  not  as  individuals,  and  that  the  whole  resi- 
due was  divisible  among  the  three  who  survived 
the  testator.  Stanhope's  Trusts,  In  re  (27  Beav. 
201), followed.  Jackson,  In  re,  Skiers  v.  Ash- 
worth,  25  Ch.  D.  162  ;  53  L.  J.,  Ch.  180  ;  50  L. 
T.  18  ;  32  W.  R.  194— Chitty,  J. 

Surviving  Children— Issue  of  Deceased  Child 
to  take  Parent's  Share— Issue  of  Children  Bead 
at  Date  of  WiU.1— A  testator,  by  a  codicil  to 
his  will,  bequeathed  to  the  widow  of  his  de- 
ceased son  the  interest  accruing  from  a  sum  of 
money,  the  payment  thereof  to  cease  upon  her 
death  or  second  marriage.  He  directed  his 
executors  to  divide  the  principal  sum  "  amongst 
my  surviving  male  and  female  children.  Should 
a  male  or  female  child's  death  precede  mine,  his 
or  her  share  to  be  divided  equally  between  the 
male  and  female  children  of  such  son  and 
daughter  deceased."  One  son  and  two  daughters 
of  the  testator  were  dead  at  the  date  of  the 
codicil ;  the  two  daughters  each  left  one  child, 
ight  children  of  the  testator  survived  him : — 


Held,  that  the  class  of  persons  entitled  under 
the  gift  were  children  of  the  testator  living  at 
his  death,  and,  per  stirpes,  the  children  living  at 
his  death  of  any  child  of  the  testator  who  had 
predeceased  him,  whether  before  or  after  the 
date  of  the  codicil ;  consequently  the  fund  was 
divisible  into  tenths  among  the  eight  surviving 
children  of  the  testator  and  the  children  of  the 
two  daughters  who  died  in  his  lifetime.  Mile* 
v.  Tudway,  49  L.  T.  664— Kay,  J. 

Brothers  and  Sisters  —  Children  of  Objeots 
Deceased  at  Bate  of  Will.] — A  testator,  after 
bequeathing  several  pecuniary  legacies,  gave 
the  residue  of  his  real  and  personal  estate  to 
trustees,  on  trust  to  sell  and  invest  the  surplus 
after  payment  of  his  debts,  and  pay  and  divide 
the  income  unto  and  between  all  his  brothers 
and  sisters,  share  and  share  alike,  during  the 
terms  of  their  natural  lives  respectively;  and 
upon  their  deaths  respectively  the  principal 
of  such  residuary  property  to  which  each  should 
be  entitled  for  his  or  her  natural  life,  should 
go  to  the  child  or  children  of  the  person  or 
persons  respectively  so  dying,  in  equal  shares 
and  proportions,  and  the  testator  stated  his 
wish  to  be,  and  he  recommended  such  child 
or  children  to  invest  the  amount  of  their  re- 
spective shares  in  the  purchase  of  farms.  The 
testator  had  two  brothers,  J.  and  C,  and  one 
sister  M.,  all  of  whom  were  married,  and  had 
families.  C.  and  M.  were  both  dead  at  the  date 
of  the  will.  J.  was  then  alive,  but  predeceased 
the  testator : —  Held,  that  the  residue  was 
divisible  equally  between  the  families  of  the 
two  brothers  and  the  sister,  so  that  each  stirps 
took  one-third  share.  Walsh  v.  Blayney,  21  L. 
B.,  Ir.  140— V.-C. 

Gift  of  Residue  to  Children  of  Nephew  to  be 
vested  at  Twenty-five — Children  born  before 
and  after  Testatrix's  Death.] — Testatrix  directed 
that  as  to  one  moiety  of  the  residue  of  her 
estate  the  trustees  should  hold  it  upon  trust 
for  the  benefit  of  the  children  of  her  nephew, 
W.  H.,  to  be  vested  interests  in  them ;  as  to 
sons  on  attaining  the  age  of  twenty-one  years  ; 
and  as  to  daughters  on  their  attaining  twenty- 
five  years  or  being  married  before  that  age ; 
and  in  case  a  daughter  should  marry  under 
age,  power  was  given  to  the  trustees  to  settle 
her  share.  Power  was  also  given  to  the  trus- 
tees to  apply  the  income  of  an  expectant  share 
of  any  child  for  maintenance,  education,  and 
bringing  up ;  and  also  to  apply  half  of  an 
expectant  share  for  advancement  in  life.  In 
case  all  the  children  of  W.  H.  should  die  with- 
out taking  a  vested  interest,  there  was  a  gift 
over  to  testatrix's  brothers  and  sisters,  &c.  W. 
H.  had  seven  children,  four  born  before  the 
testatrix's  death,  all  being  now  infants,  and 
three  afterwards.  A  daughter,  one  of  the  four, 
had  married  under  age : — Held,  that  the  four 
children  and  those  only  could  take,  and  that 
the  daughter  took  a  vested  interest  which  at 
present  was  one-fourth.  Elliott  v.  Elliott  (12 
Sim.  276)  followed.  Coppard,  In  re,  Howlett 
v.  Hodson,  35  Ch.  D.  350  ;  56  L.  J.,  Ch.  606  j  56 
L.  T.  359  ;  35  W.  R.  473— Stirling,  J. 

Class  described  by  Relationship  —  Half- 
blood.] — A  gift  in  a  will  to  a  class  of  persons 
described  by  relationship  will,  in  the  absence 
of   an  overruling  context,  be  construed  as  a 


2039 


"WILL — Construction. 


204O 


gift  to  all  persons  answering  the  relationship, 
whether  of  the  whole  blood  or  of  the  half- 
blood  ;  therefore,  a  bequest  simply  to  "  the  sisters 
of  A."  will  extend  to  A.*s  sisters  of  the  half- 
blood.  Reed,  In  re,  57  L.  J.,  Ch.  790  ;  36  W.  R. 
682— Chitty,  J. 

Ascertainment  of  Class— Gift  of  Income — 
Period  of  Distribution.]  —  The  "rule  of  con- 
venience," by  which  in  a  bequest  of  an  aggre- 
gate fund  to  children,  as  a  class,  payable  on 
attaining  a  given  age,  the  period  of  ascertaining 
the  class  is  the  time  when  the  first  of  the  class 
by  attaining  the  given  age  becomes  entitled  to 
payment,  and  children  coming  into  esse  after 
that  period  are  excluded,  is  not  applicable  to 
similar  bequests  of  income.  Wenmoth's  Estate, 
In  re,  Wenmoth  v.  Wenmoth,  37  Ch.  D.  266  ; 
57  L.  J.,  Ch.  649  ;  57  L.  T.  709  ;  36  W.  R,  409— 
Chitty,  J. 


■life  Estate  determinable  on  Bankruptcy 


— Gift  over  to  Children.] — A  testator  gave 
a  fund  to  trustees  upon  trust  to  pay  the  in- 
come to  his  son  during  his  life,  and  after  his 
death  to  pay  and  divide  the  fund  equally  among 
all  the  children  which  the  son  might  have, 
as  and  when  they  should  respectively  attain 
twenty-one,  and  if  the  son  snould  leave  no 
child  who  shall  attain  twenty-one,  the  fund 
was  to  sink  into  the  residue  of  the  testator's 
estate.  There  was  a  proviso  that  if  the  son 
should  be  adjudicated  bankrupt  the  fund  and 
the  income  thereof  should  thenceforth  imme- 
diately go  and  be  payable  or  applicable  to  or 
for  the  benefit  of  the  said  child  or  children  of 
the  son  "in  the  same  manner  as  if  he  was 
naturally  dead  "  or  in  default  of  such  child  or 
children  should  sink  into  the  residue.  After  the 
death  of  the  testator,  the  son  was  adjudicated  a 
bankrupt ;  at  the  date  of  the  adjudication  he 
had  two  children  ;  other  children  were  born  to 
him  afterwards  : — Held,  that  the  children  born 
after  the  adjudication  were  entitled  to  share  in 
the  fund  subject  to  the  contingency  of  their 
attaining  twenty-one.  Bedson's  Trusts,  In  re, 
28  Ch.  D.  523 ;  54  L.  J.,  Ch.  644  ;  52  L.  T.  554  ; 
33  W.  R.  386— C.  A. 


Period  of  Accumulation.] — The  testator 


directed  that  the  rents  of  the  trust  premises 
should  be  accumulated  for  twenty-one  years  ; 
and  that  the  accumulated  fund  should  be  in 
trust  for  all  the  children  of  B.  who  should 
attain  twenty-one,  in  equal  shares.  B.  had  six 
children  who  attained  twenty-one.  One  of 
them,  E.,  was  born  after  the  eldest  had  attained 
twenty-one,  but  during  the  period  of  accumu- 
lation : — Held,  that  E.,  having  been  born  before 
the  period  of  accumulation  came  to  an  end,  was 
entitled  to  take  as  a  member  of  the  class  ;  and 
that  the  fund  was,  therefore,  divisible  in  sixths. 
Watson  v.  Young,  28  Ch.  D.  436  ;  54  L.  J.,  Ch. 
502  ;  33  W.  R.  637— Pearson,  J. 


c.  Vested  and  Contingent  Interests. 

Discretionary  Trust  for  Maintenance  till 
youngest  Child  attains  Twenty-one.] — A  testator 
directed  his  trustees,  after  the  death  of  his  wife, 
to  apply  the  income  of  his  estate  "in  and 
towards  the  maintenance,  education,  and  advance- 
ment of  my  children  in  such  manner  as  they 


shall  deem  most  expedient  until  the  youngest 
of  my  said  children  attains  the  age  of  twenty- 
one  years,"  and  on  the  happening  of  that  event 
he  directed  them  to  divide  his  estate  equally 
among  all  his  children  then  living.  The  testator 
left  four  children,  two  of  whom  at  the  death  of 
the  widow  in  1884  were  of  age,  and  the  youngest 
was  in  his  seventh  year.  After  the  decease  of 
the  widow  the  trustees  paid  each  of  the  adult 
children  one-fourth  of  the  income,  and  applied 
the  other  two-fourths  for  the  benefit  of  the 
minors  equally  till  1886,  when  J.  S.  C,  the 
eldest  son,  made  an  absolute  assignment  for 
value  of  all  his  interest  under  the  testators  will 
to  H.  The  trustees  declining  to  pay  one-fourth 
of  the  income  to  H.  he  took  out  a  summons  to 
have  the  construction  of  the  will  determined  :— 
Held,  that  no  child  of  the  testator  was  entitle^ 
prior  to  the  attainment  of  twenty-one  by  the 
youngest  of  the  testator's  children,  to  the  pay- 
ment of  any  part  of  the  income.  Coleman,  In 
re,  Henry  v.  Strong,  39  Ch.  D.  443  ;  58  L.  J.r 
Ch.  226  ;  60  L.  T.  127— C.  A. 

Gift  of  Income  for  Maintenance  and  Bdnea- 
tion — Direction   to   Pay  at  Twenty-one.]  —  A 

testatrix,  who  died  in  1867,  by  her  will  dated  in 
1865,  devised  and  bequeathed" her  real  estate  and 
the  residue  of  her  personal  estate  to  trustees 
upon  trust  for  sale  and  conversion,  and  after 
payment  of  her  debts  and  certain  legacies,  upon 
trust  to  divide  the  residue  of  the  income  of  her 
personal  estate  and  the  rents  of  her  real  estate 
until  sold,  into  nine  equal  shares.  The  testatrix 
disposed  of  one  of  such  shares  in  the  following 
manner :  As  to  one  other  equal  ninth  part  or 
share  of  such  dividends,  rents  and  interest,  upon* 
trust  to  pay  or  apply  the  same  for  and  towards 
the  maintenance  and  education  of  A.,  B.,  and  C.; 
and  as  and  when  they  should  respectively  attain 
the  ages  of  twenty-one  years,  upon  trust  to  pay 
them  in  equal  shares  one  equal  ninth  part  or 
share  of  such  principal  moneys  and  the  dividends 
and  interest  which  might  accrue  due  thereon. 
A.  died  in  the  lifetime  of  the  testatrix.  B. 
survived  the  testatrix,  but  died  under  twenty- 
one.  C.  survived  the  testatrix  and  attained 
twenty-one  : — Held,  that  the  gift  was  contingent 
and  not  vested,  and  that  therefore  B.'s  share 
lapsed.  Martin,  In  re,  Tuke\.  Gilbert,  57  L.  T. 
471— Kay,  J. 

Legacies  were  given  by  a  testator  u  to  each  of 
my  children,  who,  being  sons,  shall  attain  the 
age  of  twenty-one  years,  and  being  daughters 
shall  attain  that  age  or  marry  under  that  acre 
with  the  consent  of  her  guardian  or  guardians" 
of  1,000Z.,  with  power  to  the  trustees  of  the  will 
if  any  of  the  sons  should  not  have  attained 
twenty-one,  or  any  of  the  daughters  should  not 
have  attained  that  age  or  married,  to  apply  the 
whole  or  part  of  the  interest  and  income  of  the 
legacies  to  which  any  of  the  children  should  be 
entitled  in  expectancy  during  the  minority  of  the 
sons  respectively  and  the  minority  and  discover- 
ture  of  the  daughters  respectively,  for  his  or  her 
maintenance  or  education  as  they  should  think  fit. 
The  will  contained  a  direction  to  accumulate  the 
residue  of  the  interest  and  income  by  investing 
the  same  for  the  benefit  of  those  who  should  be 
entitled  to  the  principal,  and  a  proviso,  if  any  of 
the  sons  or  daughters  snould  marry  any  person 
not  a  Protestant,  revoking  the  bequests  of  the 
children  so  offending,  and  giving  them  orer 
equally  amongst  all  the  others  of  the  children, 


2041 


WILL — Construction. 


2042 


sons  at  twenty-one  and  daughters  at  twenty-one 
or  marriage  with  such  consent  One  of  the 
-daughters  died  under  twenty-one  and  unmarried  : 
— Held,  that  her  legacy  did  not  vest.  Wilson  v. 
Knox,  13  L.  R.,  lr.  349— M.  R.  See  Sevan's 
Trusts,  In  re,  post,  col.  2051. 

Children  attaining  Twenty-one  or  Marrying 
— Condition  applying  to  only  Child.] — A  tes- 
tator gave  the  residue  of  his  real  and  personal 
^estate  to  trustees  upon  trusts  for  conversion,  and 
to  invest  4f000Z.  part  thereof,  and  to  pay  the  in- 
come   to  his   daughter  A.  for  life,  and  at  her 
death  to  divide  the  same  between  her  children 
in  equal  shares,  "who  being  sons  shall  attain 
twenty-one,  or  being  daughters  attain  that  age 
or  be  married,  and  if  only  one  child,  then  wholly 
to  him  or  her,  if  no  child  who  shall  live  to  attain 
a   Tested  interest,"   then  the  same  fund   was 
directed   to  be  paid  to  other  persons,  and  the 
testator  gave  the  residue  of  his  estate  upon  the 
-same   or  like  trusts.     It  was  alleged  that  the 
testator's  daughter  died,  having  had  only  one 
child,  a  daughter,  who  survived  her,  and  died 
under  age  unmarried  : — Held,  that  the  condition 
as  to  attaining  twenty-one  or  marrying  applied 
as  well  to  an  only  child  as  to  several  children, 
and  that  therefore  the  testator's  granddaughter, 
not  having  attained  twenty-one  or  been  married, 
did  not  become  entitled  to  the  funds  in  question. 
Fletcher,  In  re,  Pore"  v.  Fletcher,  53  L.  T.  813  ; 
34  W.  R.  29— North,  J. 

Tenant  in  Fee  Simple — Executory  Limitation 
over.] — A  testator  devised  realty  to  trustees  on 
trust  to  pay  the  rents  and  income  thereof  to  his 
wife  for  the  maintenance,  education,  and  benefit 
of  his  infant  son  until  twenty-one,  without 
liability  to  account  for  the  same,  and  upon  his 
said  son  attaining  twenty-one,  then  upon  trust 
for  him  absolutely ;  but  if  he  should  die  under 
twenty-one  without  leaving  issue,  then  upon  trust 
for  his  said  wife  during  life  or  widowhood,  with 
remainder  over  : — Held,  that  the  infant  son  was 
a  tenant  in  fee  simple  in  possession,  with  an 
■executory  limitation  over.  Morgan's  Estate,  In 
re,  24  Ch.  D.  114 ;  53  L.  J.,  Ch.  85  ;  48  L.  T. 
964  ;  31  W.  R.  948— North,  J. 

Vesting  subject  to  being  Divested.]  —  A 
legacy  was  given  to  testator's  son  A.,  when  he 
attained  twenty-five,  with  a  proviso  that  should 
any  of  the  testator's  sons  or  daughters  die  before 
attaining  twenty-one,  "the  legacy  hereby  be- 
queathed, or  share  of  the  residue  "  of  such  sons 
or  daughters  should  go  to  the  survivors  : — Held, 
.that  the  legacy  vested  in  A.  at  twenty-one. 
Gunning's  Estate,  In  re,  13  L.  R.,  lr.  203— Land 
Judges. 

Bequest  of  1,000/.  in  trust  to  apply  the  income 
for  the  maintenance  of  E.,  a  person  of  unsound 
mind,  for  life,  and  in  case  E.  should  recover 
.sanity,  in  trust  as  to  the  principal  as  E.  should 
by  will  appoint ;  and  in  default  of  such  appoint- 
ment,  then,  after  the  death  of  E..  to  pay  the 
Srincipal  of  the  bequest  to  J.    And  the  testator 
irected  that  in  case  of  the  death  of  any  of  his 
legatees  before  the  legacy  to  such  legatee  should 
become  vested  or  payable,   the  legacy   which 
-should  so  lapse  by  the  death  of  the  legatee  should 
go   to    P.      E.  survived  J.,  and  died  without 
recovering : — Held,  that  the  1,0002.  vested  in  J. 
jus  a  reversionary  legacy,  subject  to  be  divested 
on  an  appointment  by  E.,  in  the  event  of  recovery 
which  did  not  happen ;  that  it  was  not  subject 


to  the  gift  over  by  J.'s  death  in  the  lifetime  of  E.; 
and  that  the  gift  over  applied  only  to  legacies 
lapsing  by  the  legatee  predeceasing  the  testator. 
Beddy  v.  Courtnay,  19  L.  R.,  Ir.  245— V.-C. 

A  testator  by  his  will  devised  all  the  residue  of 
his  real  estate  in  trust  for  his  six  younger  children, 
and  directed  that  in  case  any  one  or  more  of  his 
six  younger  children  should  happen  to  die  in 
his  lifetime  leaving  issue  living  at  his  decease, 
and  which  issue,  being  issue  male,  should  live  to 
attain  the  age  of  twenty-one  years,  or,  dying 
under  that  age,  should  leave  issue  surviving,  or 
being  issue  female,  should  live  to  attain  that  age 
or  be  previously  married ;  then  in  such  case  the 
share  to  which  such  child  so  dying  would,  if  he 
or  she  had  survived  the  testator  and  had  attained 
the  age  of  twenty-one  years,  have  become  abso- 
lutely entitled,  should  be  held  upon  trust  for 
such  issue  : — Held,  that  the  two  infant  children 
of  one  of  the  six  younger  children  of  the  testator 
who  had  died  in  the  testator's  lifetime  took  a 
vested  interest  in  the  share  of  their  deceased 
parent  liable  to  be  divested  on  their  death  under 
the  age  of  twenty-one  years.  James'  Settled 
Estates,  In  re,  61  L.  T.  696  ;  32  W.  R.  898— 
Pearson,  J. 


Forfeiture   on  Alienation.]— A  testatrix 


by  her  will  appointed  two-fifths  of  certain 
property  to  trustees  upon  trust  to  pay  the  income 
to  her  son  until  he  should  attain  the  age  of  forty 
years,  and  then  to  hold  the  same  in  trust  for  her 
son,  his  executors  and  administrators  ;  provided 
that  in  case  her  son  should  assign  his  share  in 
the  property,  then  the  aforesaid  bequests  should 
be  void,  and  the  two-fifths  should  be  held  upon 
the  trusts  declared  as  to  the  other  three-fifths. 
The  son  died  before  he  attained  the  age  of  forty 
without  having  assigned  : — Held,  that  the  two- 
fifths  vested  in  trust  for  the  son  absolutely  so  as 
to  pass  by  his  will.  Sootney  v.  Lomer,  29  Ch.  D. 
535  ;  54  L.  J.,  Ch.  558  ;  52  L.  T.  747  ;  33  W.  R. 
633— North,  J. 

A.  for  life  or  until  Marriage— Gift  oyer  to 
Children  living  at  A.'s  death— Re-marriage.]— A 

testator  bequeathed  a  fund  upon  trust  for  a 
widow  for  her  life  or  until  she  should  marry 
again,  and  directed  his  trustees  from  and  im- 
mediately after  her  decease  or  marrying  again 
to  stand  possessed  of  the  fund  upon  trust  to  pay 
and  divide  the  same  equally  between  all  her 
children  "  living  at  the  time  of  their  mother's 
decease,"  and  the  issue  of  any  deceased  child, 
such  issue  taking  the  parent's  share.  The  widow 
married  again  : — Held,  that  thereupon  her  chil- 
dren took  immediate  vested  interests.  Bainbridge 
v.  Cream  (16  Beav.  24)  followed,  but  doubted. 
Tucker,  In  re,  Bowchier  v.  Gordon,  56  L.  J.,  Ch. 
449  ;  56  L.  T.  118  ;  35  W.  R.  344— Stirling,  J. 

Postponement  of  period  of  Distribution — 
Trust  to  Accumulate— Substitution  of  Issue.] — 
Testator  gave  and  devised  all  the  residue  of  his 
real  and  personal  estate  to  trustees,  upon  trust  to 
pay  his  wife  an  annuity  during  her  life  or  widow- 
hood, and  from  time  to  time  during  the  lifetime 
of  his  wife,  or  during  the  time  of  twenty-one 
years  after  his  decease,  which  should  first 
happen,  to  invest  and  accumulate  the  rest  of  the 
annual  produce  in  their  names ;  and  after  the  de- 
cease of  his  wife,  or  at  the  expiration  of  twenty- 
one  years,  whichever  should  first  happen,  he 
directed  his  trustees  to  sell  his  estate  ana  to  pay 


2043 


WILL — Construction. 


2044 


and  divide  the  balance  of  the  moneys  arising 
therefrom  after  providing  for  the  annuity,  if 
necessary,  amongst  all  his  children  in  equal 
shares,  "  the  issue  of  any  deceased  child  to  take 
his,  her,  or  their  deceased  parent's  share."  The 
testator  died  in  1877,  leaving  six  children,  who 
all  survived  him,  and  were  now  living ;  one  only 
of  the  children  had  issue : — Held,  that  the  six 
children  took  vested  and  indefeasible  interests 
on  the  death  of  the  testator.  Bragger,  In  re, 
Bragger  v.  Bragger,  56  L.  J.,  Ch.  490  ;  56  L.  T. 
521— Chitty,  J. 

Gift  over  of  Child's  Share  on  Death  "during 
Continuance  of  Trusts"  of  Will] — A  testator, 
who  died  in  1876,  by  his  will  gave  a  freehold 
house  to  trustees  upon  trust,  as  soon  as  con- 
veniently might  be  after  his  death,  to  let  the 
same  upon  certain  terms ;  and  until  the  granting 
of  a  lease  the  trustees  were  to  permit  the  business 
at  the  house  to  be  carried  on  by  the  testator's 
son  R.  and  his  daughter  M.  for  the  benefit  of  his 
estate.  Subject  thereto  the  testator  gave  the 
house  and  all  his  residuary  real  and  personal 
estate  to  his  trustees  upon  trust  to  sell  and  con- 
vert "  as  soon  as  conveniently  might  be  after  his 
death,"  and  to  hold  the  proceeds  in  trust  for  all 
his  children  equally  :  provided  that  if  any  child 
of  his  should  die  in  his  lifetime,  "  or  during  the 
continuance  of  the  trust  hereinbefore  declared," 
leaving  issue,  such  issue  should  take  by  substitu- 
tion the  parent's  share ;  and  if  any  son  of  his 
should  die  in  his  lifetime,  "or  during  the 
continuance  of  the  trusts  hereinbefore  declared," 
leaving  a  widow  and  no  issue,  such  widow  should 
take  the  share  of  her  deceased  husband  for  her 
life,  and  after  her  death  the  share  should  form 
part  of  the  testator's  residuary  estate.  The 
trustees  had  full  powers  as  to  mode,  time,  and 

Elace  of  Bale,  of  any  of  the  property  directed  to 
e  sold.  In  1878  the  trustees  let  the  freehold 
•house.  In  1881  one  of  the  sons  died  intestate, 
and  without  issue,  leaving  a  widow.  The 
question  was  whether,  on  the  death  of  the  son, 
his  interest  in  the  residuary  property  was  divested  : 
— Held,  that  the  absolute  interests  given  to  the 
testator's  children  became  indefeasible  at  the 
latest  when  the  lease  of  the  house  was  completed, 
and  the  business  was  no  longer  carried  on  for 
the  benefit  of  the  estate  ;  and  that  the  share  of 
the  deceased  son  would  devolve,  subject  to  his 
funeral  and  testamentary  expenses  and  debts, 
as  to  one  moiety  to  his  widow,  and  as  to  the  other 
to  his  next  of  kin.  Teale,  In  re,  TeaXe  v.  Teale, 
53  L.  T.  936  ;  34  W.  R.  248— Kay,  J. 

Gift  to  pay  Debts  and  to  convey  Residue  to 
Son  absolutely— Death  of  Son  leaving  Children.] 
— Testatrix  gave  all  her  real  and  personal  estate 
to  trustees  in  trust  to  pay  all  her  debts,  &c.,  and 
certain  annuities,  and  then  as  to  the  residue  of 
her  estate  directed  them  to  convey,  assign,  or 
otherwise  assure  the  same  unto  and  to  the  use  of 
her  son,  his  heirs,  executors,  &c,  absolutely. 
And  if  her  son  should  marry,  and  should  die 
leaving  children  who  should  live  to  attain  the 
age  of  twenty-one  years,  the  trustees  were  to 
convey,  &c,  the  residue  to  such  children  equally, 
as  tenants  in  common  absolutely,  but  if  her  son 
should  die  in  her  lifetime,  without  leaving 
children  or  a  child  surviving,  then  the  trustees 
were  to  convey,  &c,  the  residue  to  the  persons 
named,  for  their  absolute  use  and  benefit.  The 
son  married  after  the  date  of  the  will  in  the  | 


lifetime  of  the  testatrix,  survived  the  testatrix, 
and  had  children  living: — Held,  that  death 
leaving  children  meant  death  in  the  lifetime  of 
the  testatrix,  and  that  that  not  having  happened, 
the  son  became,  subject  to  the  payment  of  debts 
and  annuities,  entitled  absolutely  to  the  residue. 
Luddy,  In  re,  Peard  v.  Morton,  25  Ch.  D.  394 ; 
53  L.  J.,  Ch.  21  ;  49  L.  T.  706 ;  32  W.  R.  272— 
Kay,  J. 

Ineome  until  Harriage— Corpus  at  lime  of 
Marriage.]— A  testatrix  by  her  will,  after  specific 
bequest  ox  bonds,  gave  all  the  rest  of  her  stocks 
and  shares  upon  trust  to  pay  the  income  to  Ch 
until  his  marriage,  and  at  the  time  of  his  marriage 
to  hand  over  the  stocks  and  shares  to  him  '.—Held, 
that  6.  took  a  vested  interest  under  the  gift,  and 
being  of  age,  was  entitled  to  have  the  stocks  and 
shares  comprised  therein  transferred  to  him,  al- 
though he  had  not  married.  Battford  v.  Kcbbdl 
(3  Ves.  363)  distinguished  ;  Bunn,  In  re  (16  Ch. 
D.  47),  and  Vtze  v.  Stoney  (2  D.  &  WaL  659 ; 
S.  C,  1  D.  &  Wal.  337),  observed  upon.  Wrty,  h 
re,  Stuart  v.  Wrey,  30  Ch.  D.  507  ;  54  L.  J.T  Ch. 
1098  ;  53  L.  T.  334— Kay,  J. 

Gift  of  Inoome— Ultimate  Gift  at  Twwty- 
one.  ] — A  testatrix  by  her  will  devised  and  be- 
queathed  all  her  real  and  personal  estate  to  a 
trustee  absolutely,  upon  trust  to  sell  and  convert 
into  money,  and  thereout  to  pay  her  funeral  and 
testamentary  expenses  and  debts,  and  stand 
possessed  of  the  residue  upon  trust  to  invest  and 
apply  the  income  "arising  therefrom  for  or 
towards  the  maintenance  and  education  of  her 
two  children  "  (naming  them)  "  until  they  shall 
respectively  attain  the  age  of  twenty-one  yean, 
and  then  to  divide  the  trust  funds  equally  between 
them  as  tenants  in  common."  There  were  two 
children  only,  both  illegitimate  :  one,  a  sou,  died 
a  minor  and  unmarried,  and  if  his  share  vested 
it  went  to  the  crown.  On  summons : — Held,  that 
the  gifts  were  separate,  and  the  ultimate  gift 
was  contingent,  and  did  not  vest,  but  lapsed  an 
the  death  of  the  son  under  twenty-one,  MerrUr 
In  re,  Salter  v.  Att.-Gen.f  62  L.  T.  840 ;  33  W.B. 
895— V.-C.  B. 

Gift  over  on  Marriage— Taking  effect  oi 
Death.]— A  testator  bequeathed  to  his  daughter 
M.,  so  long  as  she  should  remain  single,  1204  a 
year,  and  directed  that  on  the  day  of  her  mar- 
riage the  principal  should  be  divided  amongst 
his  children,  the  shares  of  his  daughter  M.  and 
of  another  daughter  being  given  to  trustees 
upon  trust  for  the  daughters  for  life,  with  cer- 
tain remainders.  The  question  was,  whether 
the  gift  over  on  M.'a  marriage  took  effect  on  her 
death  :— Held,  that  the  balance  of  authority 
being  now  strongly  against  Pile  t.  Salter  (B  Sim. 
411),  the  ordinary  rule  prevailed,  and,  althongn 
the  gift  over  on  marriage  iucluded  a  life  tenancy 
in  one- third  of  the  original  sum,  it  took  effect  on 
death.  Scarborough  v.  Scarborough,  56  I*  *• 
851— Stirling,  J. 

Gift  during  Widowhood— Gift  ovar  on  Death 
— Be-marriage.]  —  Oift  by  will  to  ****% 
widow  A.  during  her  life,  provided  she  remained 
a  widow ;  and  from  and  after  her  death  or  re- 
marriage to  B.  absolutely,  with  provisions  ft* 
maintenance  in  case  B.  should  not  have  attained 
twenty-one  at  the  death  or  re-marriage  of  A.  la 
the  event  (which  happened)  of  B.  dying  dating 
the  lifetime  of  A.,  then  at  the  death  oi  A.  the 


2045 


"WILL — Construction. 


2046 


property  was  given  over  to  testator's  brothers 
and  sisters  who  should  be  living  at  A.'s  death.  B. 
died  an  infant,  and  afterwards  A.  married  again  : 
—Held,  that  upon  such  re-marriage  the  gift  over 
in  favour  of  testator's  brothers  and  sisters  took 
immediate  effect,  and  was  not  postponed  until 
A's  death.  Stanford  v.  Stanford,  34  Ch.  D. 
362 ;  56  L.  J.,  Ch.  273  ;  55  L.  T.  765 ;  35  W.  R. 
191-Chitty,  J. 

Heirlooms  —  Contingent  future    Interest  — 
Tenant  in  Tail— Personal  Estate.]— A  testator 
by  his  will  directed  that  his  books  and  plate 
should  he  considered  as  heirlooms  and  should 
pass  with  his  real  estate,  in  the  same  manner  as 
if  they  were  an  estate  of  inheritance  at  common 
law,  and  should  so  continue  annexed  to  his  real 
estate  as  long  as  the  law  would  permit,  to  be 
inherited  by  the  several  persons  who  should  suc- 
ceed thereto ;  and  he  devised  and  bequeathed 
all  his  real  and  residuary  personal  estate  to 
trustees  upon  trust  for  R.  C.  for  life,  and  after  the 
decease  of  R.  C.  for  his  first  and  other  sons  suc- 
cessively in  tail  male,  and  in  default  of  such 
issue  upon  trust  for  Henry  C,  the  eldest  son  of 
T.  C,  for  life,  and  after  his  decease  for  his  first 
and  other  sons  successively  in  tail  male,  and  in 
default  of  such  issue  upon  trust  for  "  the  next 
eldest  son  of  the  said  J.  C.  who   shall   sur- 
vive the  said  Henry  C."  for  life,  and   after 
his  decease    upon   trust   for  "the   first    and 
other  sons  of  the  body  of  the  said  next  eldest 
son  of  the  said  J.  C.  who  shall  survive  the  said 
Henry  C."  successively  in  tail  male,  and  in  de- 
fault of  such  issue  upon  trust  for  his,  the  testa- 
tor's, own  right  heirs.    R.  C.  and  Henry  C.  died 
without  having  married.    J.  C.  died  in  testator's 
lifetime,    George  was  the  next  eldest  son  of  J.  C, 
who  survived  Henry.    F.  J.  C.  was  the  eldest 
son  of  George,  and  the  first  tenant  in  tail  under 
the  settlement,  and  he  died  an  infant  in  the  life- 
time of  R.  0.  and  of  Henry  C. :— Held,  that  not- 
withstanding the  death  of  P.  J.  C.  before  it  could 
be  known  whether   his  father  would  survive 
Henry  C,  or  whether  there  would  be  any  issue 
male  either  of  R.  C.  or  Henry  C,  the  heirlooms 
and  residuary  personalty  vested  absolutely  in  the 
legal  personal  representative  of  F.  J.  C.    Hogg  v. 
Jones  (32  Beav.  45)  distinguished.    Creeswell,  In 
re,  Parkin  v.  Cresswell,  24  Ch.  D.  102  ;  52  L.  J., 
Ch.  798  ;  49  L.  T.  590— Kay,  J. 

Contingent    Remainder  —  Accumulation    of 
Bents  and  Profits  until  periods  of  Vesting.]— A 

testator,  by  his  will  dated  in  1851,  after  making 
divers  specific  devises  and  bequests,  and  giving 
a  life  interest  to  his  wife  in  his  residuary  real 
estate,  devised  such  residuary  real  estate,  after 
the  death  of  his  wife,  to  his  trustees  in  trust  for 
his  grandson  during  his  life,  and  from  and  after 
his  decease  in  trust  for  "  all  and  every  his  child 
and  children  who  shall  attain  the  age  or  respec- 
tive ages  of  twenty-one  years,  and  his,  her,  or 
their  heirs  and  assigns  for  ever"  ;  but  in  case 
there  should  be  no  child  of  his  grandson  who 
should  attain  the  age  of  twenty-one  years,  then, 
as  to  the  same  residuary  real  estate,  upon  trusts 
over  as  in  the  will  mentioned.  The  will  con- 
tained a  gift  of  the  residuary  personal  estate, 
but  it  was  distinct  from  the  above  devise,  and 
upon  different  trusts  from  those  declared  con- 
cerning the  real  estate,  although  some  of  the 
trusts  were  the  same.  The  will  also  contained 
powers  for  the  trustees  to  grant  leases,  and  apply 


the  rents  and  profits  of  the  real  estate  in  making 
repairs.  The  testator  died  in  1853,  and  his 
widow  died  in  1866.  The  grandson  died  in 
October,  1867,  leaving  an  only  child,  who  was 
born  on  the  11th  February,  1864.  The  question 
arose  whether  the  accumulated  rents  accruing 
between  the  date  of  the  death  of  the  testator's 
grandson  and  the  time  when  the  grandson's  only 
child  attained  the  age  of  twenty-one  years,  were 
undisposed  of  by  the  will,  or  passed  to  such 
child: — Held,  that  the  gift  to  the  grandson's 
child  was  a  contingent  remainder,  and  not  a 
vested  remainder,  and  subject  to  being  divested. 
William*,  In  re,  Spencer  v.  Brig  house,  64  L.  T. 
831-ChittY,J. 

Contingent  Remainder  or  Executory  Devise — 
Maintenance  of  Infants.] — Testator,  by  will 
executed  before  the  passing  of  the  Contingent 
Remainders  Act,  1877,  devised  freehold  property 
to  the  use  of  E.  for  life,  and  after  her  death  to 
the  use  of  trustees,  their  heirs  and  assigns,  during 
the  life  of  S.,  upon  trust  for  8.,  and  after  her 
death  to  the  child  or  children  of  S.,  who  being 
sons  should  attain  twenty-one,  or  being  daughters 
should  attain  that  age  or  marry.  The  testator 
then  directed  that  after  the  death  of  the  survivor 
of  E.  and  8.,  his  trustees  might,  during  the 
minority  of  any  child  of  8.  for  the  time  being 
presumptively  entitled,  receive  the  rents  of  the 
premises  or  the  share  thereof  to  which  any  such 
minor  should  be  actually  or  presumptively 
entitled,  and  apply  the  same  for  his  or  her 
maintenance,  and  directed  that  the  unapplied 
income  should  follow  the  destination  ot  the 
share  from  which  the  same  should  arise.  On 
the  death  of  the  survivor  of  E.  and  8.,  there 
were  five  children,  three  of  whom  were  infants 
and  unmarried : — Held,  that  the  children  took 
the  legal  estate ;  but,  looking  to  the  mainte- 
nance clause,  there  was  a  sufficient  intention  ex- 
pressed on  the  whole  will  that  infants  should 
share,  and  that  therefore  the  gift  must  be  con- 
strued as  an  executory  devise  and  not  as  a  con- 
tingent remainder.  Bourne,  In  re,  Rymer  v. 
Harpley,  56  L.  J.,  Ch.  566  ;  56  L.  T.  388 ;  35 
W.  R.  359— Kay,  J. 

Contingent  Remainder,  or  absolute  Gift  sub- 
ject to  Life  Interests.] — The  testatrix  by  her 
will  gave  certain  real  estate  to  trustees  upon 
trust  to  pay  to  or  otherwise  permit  E.  8.  to  re- 
ceive the  rents  and  profits  thereof  for  her  life, 
and  after  her  decease  upon  trust  to  pay  to  or 
otherwise  permit  A.  B.  to  receive  the  rents  and 
profits  thereof  for  her  life,  if  she  should  be 
living  at  the  time  of  the  decease  of  the  said 
E.  8.,  but  if  she  should  be  then  dead,  upon  trust 
for  two  nieces  of  the  testatrix's  late  husband, 
whom  she  named,  absolutely  as  tenants  in 
common  ;  and  the  testatrix  gave  all  the  residue 
of  her  estate  to  the  said  A.  B.  absolutely.  E.  8. 
survived  the  testatrix,  and  A.  B.  survived  E.  8., 
and  consequently  her  life  interest  took  effect. 
She  was  now  dead,  the  two  nieces  being  now 
living,  and  the  question  was  raised  whether  the 
estate  went  to  the  two  nieces,  or  whether,  inas- 
much as  A.  B.  did  not  die  in  the  lifetime  of 
E.  8.,  the  gift  to  them  failed,  and  the  estate 
went  to  A.  B.'s  representatives,  being  given  to 
her  absolutely  by  the  joint  operation  of  the  gift 
of  the  life  interest  and  of  the  residue  :— Held, 
that  the  property  went  to  the  two  nieces,  the 
gift  to  them  not  being  a  contingent  remainder, 


3047 


WILL — Construction. 


2048 


but  an  imperfect  expression  of  the  testatrix's 
intention  that,  subject  to  the  two  life  interests, 
the  nieces  were  to  take  absolutely.  Martin,  In 
re,  Smith  v.  Martin,  54  L.  J.,  Ch.  1071 ;  53  L.  T. 
34— Kay,  J. 


d.  Death  without  Issue. 


of 


Vesting  —  Prevision  for  Family  —  Bole 
Construction.]  —  The  rule  in  Hotograve  v. 
Cartier  (3  V.  &  B.  79)  in  favour  of  putting  on 
a  settlement  or  will  making  a  provision  for  a 
family  such  a  construction  as  will  give  the 
children  indefeasible  interests  on  their  attaining 
twenty-one,  is  only  a  rule  of  construction  to  be 
applied  in  construing  ambiguous  words,  and  not 
a  positive  rule  which  will  modify  the  effect 
of  plain  words.  Hamlet,  In  re,  Stephen  v. 
Cunningham,  39  Ch.  D.  426  ;  58  L.  J.,  Ch.  242  ; 
59  L.  T.  745  ;  37  W.  R.  245— C.  A. 


daughters  D.  and  S."  G.  A.  had  several  children 
all  of  whom  died  in  his  lifetime  without  issue. 
By  his  will  he  devised  and  bequeathed  all  the 
real  and  personal  estate  to  which  he  should  be 
entitled  at  his  decease  to  £. : — Held,  that,  upon 
G.  A.'s  death,  E.  took  a  life  estate  only  in  the 
property,  and  D.  and  6.  the  reversion  in  fee. 
White  v.  Hight  (12  Ch.  D.  751)  not  followed. 
lb. 

11  Die  without  leaving  Children  legally  to 
inherit."]  —  Bequest  of  a  share  of  testator's 
property  to  A.  (not  a  child  or  issue  of  the 
testator),  with  a  direction  that  if  any  legatee 
should  die  before  the  will  took  effect "  without 
leaving  any  children  legally  to  inherit,"  then  his 
or  her  share  should  "  lapse  to  the  general  fund." 
A.  died  in  the  testator's  lifetime,  tearing 
children  who  survived  the  testator : — Held,  that 
A.'s  children  took  by  implication  the  share  be- 
queathed to  him.  MLean  v.  Simpson,  19  L.  R., 
•Ir.  528— V.-C. 


"  Die  without  leaving  any  Child."  ]— A  testator 
gave  his  property  to  his  daughter  for  life,  and 
then  to  her  children,  who  being  sons  should 
attain  twenty-one,  or  being  daughters  attain 
that  age  or  marry.  "And  in  case  my  said 
•daughter  shall  happen  to  die  without  leaving 

any  child  or  children  her  surviving,  or  leaving  positions  in  favour  of  his  children  to  be  effected 
such,  they  shall  all  die  without  having  obtained  by  conveyance  from  the  trustees  of  the  will  at 
a  vested  interest  in  the  said  trust-moneys,  and    her  decease,  directed  that "  if  any  of  my  said 


"Die  without  leaving  lawful  Issue"— Period 
when  ascertained.]  —  Where  a  testator,  after 
making  particular  dispositions  during  the  life- 
time  of  his  widow,  and  certain  absolute  dis- 


without  leaving  any  issue  them,  him  or  her 
surviving,"  then  over  to  two  cousins.  The  daugh- 
ter had  children,  some  of  whom  attained  twenty- 
one,  but  all  died  in  her  lifetime : — Held,  that 
the  gift  over  took  effect,  its  terms  being  un- 
ambiguous and  the  event  to  which  it  referred 
having  happened.    lb. 

"Die  without  leaving  Issue."] — A  testator 
bequeathed  personal  estate  on  trust  after  the 
death  of  W.  K.  B.  for  W.  R.  B.,  and  in  case 
W.  B.  B.  died  without  leaving  issue  male,  for 
J.  B.  W.  R.  B.  died  in  the  lifetime  of  W.  K.  B., 
having  had  only  one  son,  who  died  an  infant  in 
his  father's  lifetime :— Held,  that  the  words  "die 
without  leaving  issue  male  "  must  be  construed 
as  "  die  without  leaving  issue  male  living  at  the 
death,"  and  not  as  "die  without  having  had 
issue  male,"  and  therefore  that  the  gift  over  to 
J.  B.  took  effect.  White  v.  Hight  (12  Ch.  D. 
751)  overruled.  Ball,  In  re,  Slattery  v.  Ball, 
40  Ch.  D.  11  ;  58  L.  J.,  Ch.  232  ;  59  L.  T.  800  ; 
37  W.  R.  37— C.A. 

Testator  gave  all  his  property  to  his  daughter, 
and  if  she  "should  die  before  the  age  of  twenty- 
one,  and  at  any  time  without  issue  "  over.  The 
daughter  attained  twenty-one,  married,  and  had 
.a  child  : — Held,  that  "  without  issue  "  meant 
*'  without  leaving  issue  alive  at  the  time  of  her 
•death."     Clay  v.  Coles,  57  L.  T.  682— Stirling,  J. 

The  words  "without  leaving"  may  be  read 
"without  having  had"  where  the  result  of  so 
doing  is  to  make  the  whole  instrument  consis- 
tent, and  where  the  contrary  construction  would 
have  the  effect  of  diverting  a  previously  vested 
gift  in  a  manner  inconsistent  with  the  expressed 
intention  of  the  testator  ;  but  they  will  not  be  so 
read  for  the  purpose  of  altering  the  event  upon 
which  the  divesting  of  a  gift  previously  vested 
•is  to  take  place.  Armstrong  v.  Armstrong, 
21  L.  R.,  Ir.  114— C.  A. 

Testator  devised  real  estate  to  "  my  son  G.  A. 
..  .  .  .  Should  my  son  G.  and  his  wife  £.  die 
leaving  no  family,  his  share  to  revert  to  my  two 


children  shall  die  without  leaving  lawful  issne 
them  surviving  the  property  hereby  devised  and 
bequeathed  to  each  of  my  said  children  shall 
be  equally  divided  amongst  my  surviving 
children  "  :— Held,  that,  according  to  the  whole 
scope  and  intention  of  the  will,  the  time  of 
dying  without  lawful  issue  was  confined  to  the 
time  before  the  grant  of  the  absolute  interest, 
that  is  during  the  lifetime  of  the  widow;  and 
that  after  conveyance  of  the  absolute  interest, 
no  defeasance  was  contemplated.  Lewi*  v. 
KUley,  13  App.  Cas.  783  ;  59  L.  T.  675— P.  C. 

A  testator  devised  real  estate  to  his  son  and 
his  heirs ;  and  then  declared  that  in  case  his 
said  son  should  die  without  leaving  lawful  issue, 
then  and  in  such  case  the  estate  should  go  to 
his  son's  next  heir-at-law,  to  whom  he  gave  and 
devised  the  same  accordingly : — Held,  that  the 
contingency  of  death  without  leaving  issue  was 
not  confined  to  death  in  the  lifetime  of  the 
testator,  but  referred  to  death  at  any  time ;  and 
that  the  gift  over  was  repugnant  and  void ;  and 
that  the  devisee  took  an  absolute  estate  in  fee 
simple.  Parry  and  Daggs,  In  re,  31  Ch.  D. 
130 ;  55  L.  J.,  Ch.  237  ;  54  L.  T.  229 ;  34  W.  R 
353— C.  A. 

e.  Death  coupled  with  Contingency. 

To  A.  for  life,  and  after  Her  deooatt  t§ 
Children— Death  before  Testator.]— A  testator 
bequeathed  the  residue  of  his  personal  estate 
to  trustees  upon  trust  for  a  nephew  and  three 
nieces  by  name,  equally  between  them;  and 
he  declared  that  his  trustees  should  retain  the 
share  of  each  of  his  nieces,  upon  trust  to  par 
the  income  to  her  during  her  life,  for  her  sepa- 
rate use  without  power  of  anticipation,  and  after 
her  decease,  as  to  the  capital  thereof,  upon  trot 
as  she  should  by  will  appoint,  and  in  default  of 
appointment,  upon  trust  for  her  child  or  children, 
sons  at  twenty-one  and  daughters  at  twenty-one 
or  marriage,  equally  between  them  if  more  than 
one.    One  of  the  nieces  married,  and  died  before 


2049 


"WILL — Construction. 


2050 


the  testator,  leaving  an  infant  daughter  her  sur- 
viving .-—Held,  that  the  share  of  the  deceased 
niece  had  lapsed,  and  that  there  was  an  intestacy 
in  respect  of  it.  Stewart  v.  Jones  (3  De  G.  &  J. 
532)  followed ;  Unsworth  v.  Speakman  (4  Ch.  D. 
620)  disapproved.  Roberts,  In  re,  Tarleton  v. 
Brwton,  27  Ch.  D.  346  ;  63  L.  J.,  Ch.  1023 ;  61 
L.  T.  664  ;  32  W.  B.  986— Pearson,  J.  Affirmed 
30  Ch.  D.  234 :  53  L.  T.  432— C.  A. 

Testator  bequeathed  the  proceeds  of  his  real 
estate  upon  trust  for  the  equal  benefit  of  his 
sisters,  nephews,  and  nieces  as  follows :  As  to  the 
shares  of  his  nephews  upon  trust  to  pay  the  same 
to  them  absolutely,  and  as  to  the  shares  of  his 
sisters  and  nieces  upon  trust  to  invest  and  pay 
the  dividends  unto  each  such  sister  and  niece  for 
life  for  her  separate  use,  and  after  the  death  of 
each  sister  upon  trust  to  apply  her  share  for  the 
benefit  of  his  said  nieces  upon  the  trusts  of  the 
original  shares  of  such  nieces,  and  after  the 
death  of  each  niece  upon  trust  to  pay  her  share 
to  snch  of  her  children  as  she  should  by  will 
appoint,  and  in  default  of  appointment  to  her 
children  equally  on  attaining  twenty-one,  and  if 
no  such  children  then  in  trust  for  the  survivors 
or  survivor  of  his  said  nieces.  And  the  will  pro- 
vided that  if  any  niece  should  die  in  the  testator's 
lifetime  her  share  should  be  for  the  benefit  of  her 
child  or  children,  but  if  no  such  children  who 
should  live  to  attain  twenty-one  then  such  share 
should  be  for  the  benefit  of  his  surviving  nieces 
equally  and  upon  the  same  trusts  : — Held,  that 
the  child  of  a  niece  who  was  dead  at  the  date  of 
the  will  was  not  entitled.  Smith's  Trusts,  In  re 
(5  Ch.  D.  497  n.),  not  followed.  Chinery,  In  re, 
Chinerv  v.  Hill,  39  Ch.  D.  614  ;  57  L.  J.,  Ch. 
804 ;  5?  L.  T.  303— Stirling,  J. 

To  "  all  the  Children  of  X.,"  "  or,  in  event  of 
Decease,  to  their  Descendants."]— The  testator, 
by  will,  bequeathed  all  his  share  in  an  estate  in 
Barbadoes  "  to  all  the  children  of  "  his  dear  de- 
parted wife's  sister,  M.,  "  or  in  event  of  decease, 
to  their  descendants,  share  and  share  alike."  M. 
had  sir  children,  of  whom  five  were  living  at 
the  date  of  the  will  and  at  the  death  of  the  tes- 
tator, and  one  had  died  prior  to  the  date  of  the 
will,  leaving  issue  an  only  daughter: — Held, 
following  the  decision  in  Christopher  v.  Naylor 
(1  Mer.  320),  that  the  issue  of  the  child  of  M., 
who  was  dead  at  the  date  of  the  will,  was  not 
entitled  to  a  share  of  the  property,  but  that  it 
went  to  the  five  children  of  M.  who  survived  the 
testator.  Webster's  Estate,  In  re,  Wigden  v. 
Mello,  23  Ch.  D.  737  ;  52  L.  J.,  Ch.  767  ;  49  L.  T. 
585 — Kay,  J. 

Death  before  Payment — Gift  over.]— Testator 
gave  the  residue  of  the  proceeds  of  the  sale 
of  his  real  and  personal  estate  between  all 
such  of  his  first  and  second  cousins  as  should  be 
living  at  the  time  of  the  determination  of  two 
life  interests  given  by  the  will.  The  testator  by 
a  codicil  directed  that  if  any  or  either  of  his 
first  or  second  cousins  should  die  before  the 
payment  of  any  sum  or  share  thereby,  or  by 
his  will,  directed  to  be  paid  to  him  or  her,  such 
sum  or  share  should  be  equally  divided  amongst 
certain  persons : — Held,  that  the  gift  over  was 
meant  to  take  effect  in  the  event  of  death  before 
the  time  of  payment,  i.e.,  the  determination  of 
the  life  interests.  Wilks  v.  Bannister,  30  Ch.  D. 
612  ;  54  L.  J.,  Ch.  1139  ;  63  L.  T.  247  ;  33  W.  R. 
922— Kay,  J. 


A.  for  life,  and  afterwards  equally  between 
Children  of  Testator's  Brothers — "Issue  of 
Deoeased  Child  to  take  Parent1!  Share."] — 
A  testator,  who  died  in  1871,  by  his  will, 
dated  in  1870,  gave  his  residuary  estate  to 
trustees  upon  trust  to  pay  the  income  thereof  to 
his  widow  for  her  life,  and  after  her  death  he  gave 
the  property  unto  and  equally  between  all  and 
every  the  children  of  his  brothers  and  sisters, 
share  and  share  alike,  "  the  issue  of  any  deceased 
child  to  take  the  parent's  share."  The  testator's 
widow  died  in  1881.  Some  of  the  children  of 
the  brothers  and  sisters  of  the  testator  survived 
him,  but  died  in  the  lifetime  of  the  testator's 
widow,  leaving  issue.  The  question  was, 
whether  the  issue  of  the  deceased  children  of 
the  brothers  and  sisters  of  the  testator  were 
respectively  entitled  to  the  shares  of  their  de- 
ceased parents  : — Held,  that  the  substitutional 
gift  took  effect  in  the  case  of  anv  child  of  a 
brother  or  sister  of  a  testator  who  had  died  in 
the  lifetime  of  the  testator's  widow.  Gilbert, 
In  re,  Daniel  v.  Matthews,  54  L.  T.  752 ;  34 
W.  R.  577— Kay,  J. 

Children  of  A.  and  lawful  Issue  of  ineh  as 
"  then"  Dead.]— Testator  bequeathed  his  residuary 
personal  estate  upon  trust  for  his  aunt  for  life, 
and  from  and  after  her  decease  for  all  the  child- 
ren of  his  uncle,  "  and  the  lawful  issue  of  such 
of  them  as  may  be  then  dead."  The  aunt  and 
all  the  children  of  the  testator's  uncle  died  in 
the  testator's  lifetime,  but  one  of  such  children 
died  after  the  tenant  for  life,  leaving  issue  who 
survived  the  testator  : — Held,  that  the  word 
"  then  "  referred  to  the  death  of  the  tenant  for 
life,  and  not  to  the  period  of  distribution,  and 
that  consequently  there  was  an  intestacy. 
Milne,  In  re,  Grant  v.  Heysham,  67  L.  T. 
828— C.  A.  Affirming  66  L.  J.,  Ch.  543— 
Stirling,  J. 

41  Die  Unmarried  and  without  Legal  Issue  " — 
"And"  read  "or."]— A  testator  made  his  will 
as  follows : — "  I  leave  to  my  son  S.  all  my  landed 
property  in  the  county  K.,  also  the  policy  of 
assurance  effected  on  the  life  of  my  sister  C.  for 
1.500Z.  It  is  my  desire  that  should  the  said  S. 
die  unmarried  and  without  legal  issue,  that  all 
my  property  bequeathed  to  him  should  go  share 
and  share  alike  between  my  daughters  J.  and  E. 
I  give  power  to  my  son  S.  to  settle  a  jointure 
out  of  the  said  property  not  exceeding  1001.  a  year 
on  the  woman  he  may  marry. ...  I  do  appoint 
my  son  S.  as  residuary  legatee."  The  testator 
made  a  codicil  to  his  will  as  follows  :  "  I  hereby 
give  and  bequeath  to  my  daughter  E.  the  sum 
of  4002.,  to  be  paid  to  her  when  the  insurance  on 
the  life  of  my  sister  C.  is  paid  in."  S.  died 
leaving  a  widow,  and  never  had  any  issue  :— 
Held,  that  in  the  executory  gift  to  testator's 
daughters,  "  should  the  said  S.  die  unmarried 
and  without  legal  issue,"  the  word  "  and  "  must 
be  read  "or,"  and  that,  therefore,  upon  S.'s 
death  without  issue,  though  leaving  a  widow, 
the  testator's  lands  in  the  county  K.  passed 
under  the  executory  gift  to  J.  and  E.  subject  to 
a  jointure  of  1002.  a  year  which  S.  had  charged 
thereon  for  his  widow.  Long  v.  Lane,  17  L.  R., 
It.  11— C.  A. 

Gift  at  Twenty-five— Contingent  Gift— Gift 
over.] — A  testatrix  by  her  will,  dated  in  1828, 
gave  all  her  property  to  trustees  upon  trust,  as 

8  U 


2051 


WILL — Construction. 


2052 


to  the  interest  of  a  sum  of  5,0002.,  for  her  sister 
for  life ;  and  after  the  death  of  such  sister  the 
interest  to  be  paid  to  the  testatrix's  daughter 
(Bhe  having  first  attained  twenty- five) ;  if  the 
daughter  married  with  the  consent  of  the  exe- 
cutors, and  died  "  leaving  children,  the  interest 
to  be  appropriated  for  the  maintenance  and 
education  of  such  children,"  of  whom  the  testa- 
trix constituted  the  executors  guardians  as  to 
the  due  application  of  the  same  according  to 
their  discretion, "  and  the  principal  to  be  divided 
amongst  them  as  they  shall  severally  attain  the 
age  of  twenty-five  years ; "  after  the  death  of  the 
sister,  and  in  the  event  of  the  daughter  marry- 
ing without  consent,  or  marrying  with  consent 
"  and  dying  without  leaving  issue,"  then  over. 
The  daughter  survived  the  testatrix,  attained 
twenty-five,  and  in  1842  married  with  the  neces- 
sary consent.  The  sister  died  in  1854,  and  the 
daughter  in  1866,  having  had  two  children,  who 
survived  her : — Held,  that  the  gift  was  not  void 
for  remoteness,  but  that  the  fund  vested  in  the 
children  of  the  daughter  living  at  her  death. 
Sevan's  Trusts,  In  re,  34  Ch.  D.  716 ;  56  L.  J., 
Ch.  652  ;  56  L.  T.  277  ;  35  W.  R.  400— Kay.  J. 

"Die  before  they  are  Entitled  "—Death  of 
Remainderman  before  Tenant  for  Life.] — By  a 

testamentary  appointment  a  testatrix  gave  three 
copyhold  houses  to  E.  for  life,  and  after  his  death 
she  directed  the  houses  to  be  sold  and  the  pro- 
ceeds "  to  be  equally  divided  amongst "  her  three 
nephews  and  niece, "  but  should  either  of  my  said 
nephewB  or  niece  die  before  they  are  entitled  to 
the  property,  leaving  issue,  I  give  the  share  of  him 
or  her  so  dying  to  his  or  her  child  or  children." 
All  the  remaindermen  survived  the  testatrix,  but 
three  of  them  predeceased  E.,  leaving  children 
living  at  his  death  : — Held,  that  "  entitled " 
meant  entitled  "  in  possession,"  and  that  there- 
fore the  shares  of  the  three  deceased  remainder- 
men did  not  pass  to  their  legal  personal  repre- 
sentatives, but  to  their  children.  Commissioners 
of  Charitable  Donations  v.  Cotter  (1  D.  &  War. 
498)  distinguished.  Noyce,  In  re,  Brown  v.  Bigg, 
31  Ch.  D.  76  ;  55  L.  J.,  Ch.  114  j  53  L.  T.  688  ; 
34  W.  R.  147— V.-C.  B. 

Gift  oyer  on  Death  of  Legatee.] — A  tes- 
tator by  his  will,  dated  in  1851,  devised  all  his 
real  estate  to  trustees  upon  trust  to  receive  the 
Tents  and  accumulate  them  until  sufficient  to 
pay  his  debts,  and  also  to  provide  for  the  lega- 
cies next  given.    The  testator  then  gave  to  J.  C. 
the  sum  of  200/.;  to  S.  W.  the  sum  of  150Z.;  and 
to  J.  R.  the  sum  of  192. 19*.    All  of  the  three 
last-mentioned   legacies    the    testator   directed 
should  be  paid  by  his  trustees  at  the  end  of 
.•seven  years   next    after  his  decease  ;    and  he 
•  directed  that,  in  case  of  the  death  of  J.  C.  and 
'-  S.  W„  respectively  before  they  became  entitled 
?  to  the  legacies  above  mentioned,  leaving  lawful 
\  issue  him  or  her  surviving,  the  legacy  of  him  or 
Vherso  dying  should  go  and  be  equally  divided 
"between  and  amongst  his  or  her  issue  at  the  end 
of  seven  years  next  after  the  testator's  decease, 
in  case  such  issue  should  then  have  attained  the 
age  of  twenty-one  years,  but  if  they  should  not 
ihave  attained  the  age  of  twenty-one  years,  then 
when  and  as  they  respectively  attained  that  age. 
The  testator  died  in  September,  1861.    J.  C.  died 
in  February,  1864,  within  seven  years  after  the 
testator's  death.    He  left  two  children  and  a 
^grandchild.    The  question  arose  between  them 


and  his  executors  whether,  in  the  events  mat 
had  happened,  the  gift  over  of  his  legacy  had 
taken  effect:— Held,  that  the  words  "become 
entitled "  did  not  mean  "  become  entitled  in 
possession;"  that,  therefore,  notwithstanding 
that  J.  O.  died  within  seven  years  after  the 
testator's  decease,  the  gift  over  of  his  legacy 
did  not  take  effect ;  but  that  he  became  entitled 
thereto  indefeasibly  on  the  testator's  death. 
Crosland,  In  re,  Craig  v.  Mdgley,  54  L.  T.  238 
— Kay,  J. 

/.  ACCBLEBATION  OF  IKTBBEST8. 

Incapacity  of  Legatee— Substitutional  Gift.]— 
A  testator  devised  and  bequeathed  all  his  real 
and  personal  estate  to  his  wife  for  life,  and  after 
her  death  to  be  equally  divided  between  such  of 
his  children  as  should  be  living  at  her  death ; 
and  in  case  of  any  of  the  above-mentioned 
children  dying  before  his  wife  leaving  children, 
such  children  were  to  take  their  parent's  share. 
And  in  the  event  of  any  of  his  daughters  being 
married  at  his  wife's  decease,  it  was  his  will  that 
such  proportion  as  they  might  be  entitled  to 
should  be  left  to  them  and  their  children  exclu- 
sively, and  should  in  no  way  be  controlled  bv 
their  husbands.  At  the  death  of  the  testators 
widow  one  of  his  daughters  was  living  who  had 
several  children.  Her  husband  was  an  attesting 
witness  to  the  will,  and  consequently  the  gift  to 
her  was  void  under  s.  15  of  the  Wills  Act :— HeM, 
that  the  daughter's  children  were  not  to  be  dis- 
appointed by  her  disability,  but  took  an  imme- 
diate interest  in  her  share  as  tenants  in  common. 
Clark,  In  re,  Clark  v.  Randall,  31  Ch.  D.  72 ; 
55  L.  J.,  Ch.  89  ;  53  L.  T.  591 ;  34  W.  R.  70- 
V.-C.  B. 

Gift  by  will  of  real  and  personal  estate  apoa 
trust  to  convert  and  pay  the  income  of  the  pro- 
ceeds to  A.  for  life,  and  after  A.'s  death  to  pay 
the  capital  and  income  thereof  unto  the  child  or 
children  of  A.  in  equal  shares,  with  gifts  over  in 
case  A.  should  die  without  leaving  issue  living 
at  his  death.  The  will  had  been  attested  by  A* 
wife,  so  that  the  gift  of  a  life's  interest  to  him 
was  void  under  s.  16  of  the  Wills  Act.  There 
were  no  children  of  A/s  marriage.  The  personal 
estate  was  exhausted  and  the  trust  funds  repre- 
sented real  estate  only  : — Held,  that  until  A  had 
a  child  the  gifts  upon  the  determination  of  A*s 
life  estate  could  not  be  accelerated,  and  that 
during  the  life  of  A.  and  so  long  as  he  had  no 
children,  the  income  of  the  trust  funds  was  un- 
disposed of,  and  belonged  to  the  heir-at-law,  and 
could  not  be  accumulated  for  the  benefit  of  the 
persons  contingently  entitled  in  remainder.  M 
v.  Jacobs  (3  Ch.  D.  703)  distinguished.  Hoist* 
v.  Earl  of  Bective  (1  H.  &  M.  376)  and  DftmhU, 
In  re  (23  Ch.  D.  360)  explained.  Townsend,  I* 
re,  Townsend  v.  Townsend,  34  Ch.  D.  357 ;  5* 
L.  J.,  Ch.  227  ;  55  L.  T.  674  ;  35  W.  B.  153- 
Chitty,  J. 


4.  WHAT    INTEREST    PASSES. 

a.  Absolute. 

i.  Lands. 

"  All  my  Interest  "—Will  made  bafore  1  Tift 
o.  26.]— A  testator  in  a  will  made  before  tfce 
Wills  Act  gave  and  bequeathed  u  all  the  intere* 


2058 


WILL — Construction. 


2054 


of  my  houses  and  cottages  situated  as  follows." 
He  then  proceeded  to  dispose  of  this  property, 
which  was  copyhold,  and,  after  giving  life  in- 
terests, concluded  with  a  gift  to  T.  S. :— Held, 
that  the  words  "  all  my  interest "  at  the  com- 
mencement of  the  will  ran  through  the  whole 
will,  and  were  not  in  the  nature  of  a  recital 
merely,  and  that  T.  S.  took  the  fee.  Be  la 
Hunt  and  Pennington,  In  rey  57  L.  T.  874— 
Chitty,  J. 

For  sole  use  and  benefit — Forfeiture  on  Aliena- 

ation.] — A.  was  entitled  under  the  will  of  his 
father,  to  an  income  amounting  to  109Z.  4*.  6d., 
arising  from  houses  in  the  city  of  Cork  and 
certain  shares  Tested  in  trustees,  being  a  third 
share  of  the  father's  estate,  upon  trust  "  for  the 
sole  use  and  benefit "  of  the  respondent,  and  "to 
he  assigned,  transferred,  and  handed  over  to 
him  as  soon  as  conveniently  may  be "  after  the 
decease  of  the  father.  The  will  directed  that  if 
any  of  the  three  sons  of  the  testator  should  die 
unmarried  and  without  issue  his  share  should  go 
to  the  survivors,  and  it  was  further  provided  that 
neither  of  the  sons  of  the  testator  should  have 
power  to  mortgage,  sell,  alien,  charge  or  incum- 
ber any  part  of  the  property  assigned  to  them, 
and  that  in  the  event  of  either  of  them  doing 
so  the  trustees  should  stand  possessed  of  his 
share : — Held,  that  A.  took  an  estate  in  fee 
simple  under  the  will,  and  that  the  provision 
for  forfeiture  in  case  of  alienation  was  therefore 
roid.  Corbett  v.  Corbett,  14  P.  D.  7  ;  58  L.  J., 
P.  17;  60  L.  T.  74;  37  W.  R.  114— C.  A. 

Absolute  Devise  in  fee — Gift  Over— Restraint 
m  Alienation.] — A  testator  who  died  in  1871, 
after  reciting  in  bis  will  that  he  was  seised  of 
certain  lands,  devised  the  same  to  his  son,  T.  M., 
without  words  of  limitation,  and  directed  that 
his  said  son  should  not  have  power  to  sell, 
assign,  transfer,  or  make  over  the  said  therein- 
before mentioned  lands,  or  part  with  the  posses- 
sion of  any  part  thereof  to  any  person  or 
persons  whomsoever,  except  by  will  to  his  wife, 
child,  or  children,  lawfully  begotten,  or  next-of- 
kin,  in  such  shares  and  proportions  as,  by  his 
last  will  and  testament,  he  should  direct  or 
appoint.  And  in  case  the  testator's  said  son 
should  happen  to  die  intestate  and  without 
lawful  issue,  then  the  testator  declared  that  his 
executor  should  have  power  to  dispose  of  the 
lands,  but  always  to  the  testator's  next  heir,  or 
heirs,  or  next-of-kin,  it  being  the  testator's  will 
that  said  lands  should  not  pass  out  of  his 
family.  And  it  was  also  the  testator's  will 
that  any  lawful  issue  of  his  said  son,  T.  M., 
should  not  sell,  assign,  transfer,  or  make  over 
the  said  lands  or  any  part  thereof,  except  in 
like  manner  as  his  (the  testator's)  said  son, 
T.,  by  will  to  his  or  their  child  or  children,  or 
next-of-kin.  T.  M.  died  without  issue,  but 
made  a  will,  whereby  he  devised  and  be- 
queathed all  his  property  to  his  wife,  H.  M. 
T.  M.  died  seised  and  possessed  of  other  pro- 
perty besides  that  devised  and  bequeathed  to 
him  by  his  father: — Held,  that  neither  the 
restraint  on  alienation,  nor  the  gift  over,  were 
indicative  of  an  intention  contrary  to  the 
devise  to  T.  M.  passing  the  fee-simple  or 
absolute  estate  and  interest  of  the  testator  in 
the  lands  devised.  Martin  y.  Martin,  19  L.  R., 
Ir.  72— V.-C. 


Devise  to  Class— Gift  over  on  Death  leaving 
Issue.] — A  testator  had  devised  and  bequeathed 
his  real  and  personal  estates  to  his  wife  during 
widowhood,  and  at  her  decease  or  marriage  to 
his  sons  and  daughters  therein  named  in  equal 
shares ;  and  the  will  then  proceeded  as  follows  : 
14  but  if  any  of  my  children  should  die  during 
my  lifetime,  or  otherwise,  leaving  issue,  such 
child  or  children,  as  the  case  may  be,  to  have 
their  father's  or  mother's  share,  to  be  equally 
divided  between  them  absolutely."  The  tes- 
tator's widow  died  in  1884,  leaving  all  the  sons 
and  daughters  named  in  the  will  her  surviv- 
ing, and  all  of  them  had  attained  twenty-one 
years.  Such  sons  and  daughters  were  the 
vendors  of  the  property  sold : — Held,  that  the 
children  were  entitled  to  their  respective  shares 
for  an  indefeasible  estate  in  fee  simple,  and 
that  they  could  therefore  make  a  good  title. 
Thompson  to  Curzon,  In  re,  52  L.  T.  498— 
Kay,  J. 

Renewable  Leaseholds— Purchase  of  Rever- 
sion.]— Testatrix  devised  leaseholds,  renewable 
by  custom,  to  J.  P.  for  the  residue  of  the  term, 
and  after  the  death  of  J.  P.,  during  the  residue 
of  the  term,  to  the  children  of  J.  P.  in  equal 
shares.  J.  P.  renewed  the  leaseholds  more  than 
once,  and  finally  purchased  the  reversion : — 
Held,  that  the  fee  simple  in  the  property  passed 
by  the  devise  in  the  will  to  the  children  of 
J.  P.,  and  became  subject  to  the  trusts  of  the 
will.  Phillips  v.  Phillips,  29  Ch.  D.  673 ;  54 
L.  J.,  Ch.  943 ;  53  L.  T.  403 ;  33  W.  R.  863— C.  A. 

Shelley's  Case— Power  to  Appoint— Ultimate 
Limitation  to  Right  Heirs  of  Tenant  for  life— 
"  In  default  of  such  Appointment"] — By  a  will 
made  in  the  year  1833  a  testatrix  devised  a  free- 
hold messuage  unto  trustees,  their  heirs  and 
assigns,  upon  trust  for  her  daughter  during  her 
life,  and  after  her  decease  upon  such  trusts  for 
the  lawful  child  or  children  of  the  daughter  as 
she  should  by  deed  or  will  appoint,  and  "  in  de- 
fault of  such  appointment"  in  trust  for  the 
daughter's  right  heirs.  The  testatrix  directed 
that  the  receipts  of  her  daughter  should  be  a  dis- 
charge to  the  trustees,  that  the  messuage  should 
be  enjoyed  by  her  daughter  free  from  the  debts, 
control,  or  engagements  of  any  husband,  with 
whom  she  might  intermarry,  and  that  the  trustees 
might  reimburse  themselves.  The  testatrix  autho- 
rised the  trustees,  their  heirs,  or  assigns,  also  to 
sell  the  messuage  with  the  consent  of  her 
daughter,  "  or  other  the  persons  or  person  who 
shall  be  beneficially  interested  under  the  trusts." 
The  daughter  after  her  mother's  death  granted 
the  messuage  to  the  defendants  in  fee  simple,  and 
died  without  having  been  married.  The  plain- 
tiff, her  heir-at-law,  having  brought  an  action  to 
recover  the  messuage: — Held,  that  the  messuage 
was  devised  to  the  trustees  in  fee  simple  at  law  ; 
that  the  limitation  to  the  right  heirs  of  the 
daughter  in  default  of  an  appointment  to  her 
children  was  a  remainder  and  not  an  executory 
devise  ;  that  both  the  estate  for  life  devised  to 
the  daughter  and  the  remainder  to  her  right 
heirs  were  equitable  estates  ;  that  consequently 
the  estate  for  life  and  the  remainder  to  the  right 
heirs  coalesced  pursuant  to  the  rule  in  Shelley's 
Case  (1  Rep.  93  b),  that  the  daughter  could 
make  a  valid  disposition  of  the  fee  simple,  and 
that  the  defendants  were  entitled  to  the  mes- 
suage.    Cunliffe  v.  Braneher  (3  Ch.  D.  393)  ; 

3  U  2 


2055 


WILL — Construction. 


2056 


Hart's  Estate,  In  re  (W.  N.  1883,  p.  164)  dis- 
tinguished, by  Cotton,  L.J.  Richardson  v. 
Harrison,  16  Q.  8.  D.  85 ;  55  L.  J.,  Q.  B.  58  ; 
64  L.  T.  456— C.  A. 

Legal  Estate— Trustees.]— By  his  will  a  testa- 
tor  devised  a  certain  freehold  messuage,  mill, 
tenement,  and  closes  of  land,  together  with  the 
millstones,  mill  machinery,  threshing  machine, 
&c.,  "  and  other  fixtures  "  to  two  trustees,  their 
heirs  and  assigns,  upon  trust  for  A.  J.  T.  for  life, 
upon  the  express  condition  that  the  premises 
should  be  kept  in  good  repair,  and  insured  in  the 
names  of  the  trustees,  and  after  the  death  of  A. 
J.  T.  in  trust  for  the  children  of  A.  J.  T.  at 
twenty-one  or  marriage  : — Held,  that  upon  the 
construction  of  the  will,  the  trustees  had  no  legal 
estate  vested  in  them.  Tudball  v.  Medlicott, 
69  L.  T.  370 ;  36  W.  R.  886  ;  52  J.  P.  659— 
Eekewich,  J. 

A  testator  directed  his  executors  to  pay  his 
debts  and  carry  out  the  intentions  of  his  will,  and 
devised  his  real  estate  to  his  wife  and  daughters. 
The  will  contained  a  proviso  limiting  the  wife's 
share  to  her  for  life,  with  remainder  to  his 
surviving  daughters,  or  their  children,  and  a 
direction  to  invest  the  shares  of  his  daughters 
for  their  benefit  and  that  of  their  children : — 
Held,  that  the  executors  took  the  legal  estate  in 
the  testator's  realty.  Davies  to  Jones,  49  L.  T. 
624  ;  32  W.  R.  460— Pearson,  J. 


ii.    In  other  Cases. 

Qualification  of  Absolute  Gift.]— Where  in  a 
will  there  is  an  absolute  gift  followed  by  a 
qualification  of  the  mode  of  its  enjoyment  to 
secure  certain  objects  for  the  benefit  of  the 
legatee,  then,  if  the  object  fails,  the  absolute  gift 
remains.  But  if  there  is  an  absolute  gift,  fol- 
lowed by  a  clause  diminishing  the  estate  so  given 
to  the  first  taker,  the  absolute  gift  has,  in  effect, 
been  cut  down,  and  the  court  can  only  give  effect 
to  it  as  so  diminished.  Richards,  In  re,  Williams 
v.  Gorvin,  60  L.  T.  22— Pearson,  J. 

Under  a  gift  by  A. .  to  his  wife  of  10,000Z., 
"  afterwards  to  go  to  the  understated  residuary 
legatee  E.  :  "—Held,  that  the  legacy  of  10,000*. 
was  given  to  the  wife  absolutely,  but  that 
interest  upon  such  legacy  did  not  begin  to  run 
until  after  one  year  from  the  testator's  death. 
Percy  v.  Percy,  Percy,  In  re,  24  Ch.  D.  616 ;  63 
L.  J.,  Ch.  143  ;  49  L.  T.  554— V.-C.  B. 

Property  to  be  enjoyed  with  and  go  with 
Title.]— A  testatrix  by  a  codicil  to  her  will 
bequeathed  to  C.  A.,  sixth  Earl  of  E.,  and  to 
his  successors,  all  her  plate,  and  also  gave, 
devised,  and  bequeathed  a  leasehold  house  to 
him  and  "  to  his  successors,  and  to  be  enjoyed 
with  and  to  go  with  the  title  ": — Held,  that  the 
plate  and  leasehold  house  passed  to  the  sixth  Earl 
absolutely  ;  the  words  "  to  be  enjoyed  with  and 
to  go  with  the  title"  not  being  sufficient  in 
themselves  to  create  an  executory  trust  or  to  cut 
down  the  interest  to  a  life  estate.  Montagu  v. 
Inohiquin  {Lord),  (23  W.  R.  692)  discussed. 
Johnston,  In  re,  Cockerell  v.  Essex  (Earl),  26 
Ch.  D.  538  ;  53  L.  J.,  Ch.  645  ;  52  L.  T.  44  ;  32 
W.  R.  634— Chitty,  J. 

X.  for  Life,  and  to  Heirs  after  her  —  Gift 
over.] — A  testatrix  bequeathed  a  sum  of  money 


to  "  M.  for  the  term  of  her  life  and  to  her 
heirs  after  her ; "  and  in  case  M.  should  not 
survive  her,  the  testatrix  bequeathed  the  said 
sum  to  E.  for  her  life,  and  at  the  death  of  £.  to 
certain  other  persons  : — Held,  that  the  legacy 
did  not  upon  the  death  of  M.,  who  survived  the 
testatrix,  pass  to  her  heir-at-law  as  a  persons 
designata,  but  that  M.  took  the  bequest  abso- 
lutely. Atkinson  v.  L1  Estrange,  15  L.  K,  ir. 
340— V.-C. 

On  Death  of  Legatees  Shares  should  go  to 
Next  of  Kin.] -J.  C.  by  his  will,  dated  19 
March,  1877,  gave  and  bequeathed  his  lease- 
hold messuage  in  W.-road,  and  also  all  the 
plant,  stock-in-trade,  fixtures,  and  utensils  of 
trade,  and  the  goodwill  of  the  trade  or  busi- 
ness of  tyresmith  carried  on  on  the  said 
premises,  but  not  including  the  book-debts  ow- 
ing at  the  testator's  decease,  unto  his  three  sons, 
J.  C,  W.  C.t  and  T.  C.  in  equal  shares,  provided 
that  upon  the  death  of  either  of  them  the  said 
J.  C,  W.  C.  and  T.  C.  (whether  in  the  testator's 
lifetime  or  after  his  decease)  the  share  or  shares 
of  him  or  them  so  dying  of  and  in  the  said  lease- 
hold messuage,  plant,  stock-in-trade,  &c,  should 
go  to  his  or  their  next-of-kin  according  to  the 
Statutes  of  Distribution.  The  testator  died  on 
the  21st  of  March,  1877.  The  three  sons  pur- 
chased the  book-debts  from  the  testator's  estate, 
and  carried  on  the  business  in  partnership  until 
the  year  1886,  during  which  time  they  had 
largely  increased  the  value  of  the  stock-in-trade, 
and  had  purchased  additional  leasehold  premises 
for  the  business.  In  1886  T.  C.  agreed  to  pur- 
chase the  share  of  W.  C.  in  the  business  for 
4,500Z. :— Held,  that  W.  C.  had  a  right  toreceiTe 
the  whole  of  the  purchase-money,  and  it  was  not 
necessary  to  set  apart  any  part  thereof  for  the 
persons  who  might  be  ultimately  entitled  nnder 
the  gift  to  the  next-of-kin.  Connolly  v. 
Connolly,  56  L.  T.  304— North,  J. 

Gift  of  Rents  and  Income— Life  or  Absolute 
Interest — Contrary  Intention.] — Testator  bj  his 
will  gave  a  legacy  of  100/.  to  nis  wife  "  for  her 
present  wants"  and  appointed  her  sole  executrix. 
And  he  gave,  devised,  and  bequeathed  the  rente 
and  income  of  all  his  freehold,  copyhold,  sad 
leasehold  properties  at  B.,  and  all  the  rents  and 
profits  of  nis  leasehold  houses  in  P.,  to  his  wife. 
He  also  directed  that  she  should  be  entitled  to 
all  other  the  income  of  his  estate  and  effects, 
real  or  personal,  and  that  any  moneys  which 
might  be  in  his  house  or  in  the  hands  of  his  said 
wife  might  be  invested  in  her  name  in  consols, 
and  the  interest  to  arise  therefrom  might  be  re- 
tained or  received  by  his  said  wife  as  part  of  his 
said  income.  He  desired  that  his  wife  "  should 
be  at  liberty  out  of  the  proceeds  of  the  surplus 
residuary  estate  to  erect  any  monument  to  my 
memory  which  she  may  please,  not  exceeding 
the  sum  of  300Z."  He  also  gave  and  bequeathed 
to  his  wife  all  his  household  furniture,  goods 
and  effects  in  his  house  at  E.,  and  desired  that 
she  should  "  have  the  free  use  and  occupation  of 
his  dwelling-house  at  E.,"  and  directed  that  an 
inventory  of  such  furniture  and  effects  should 
be  made.  The  court  held,  that  there  was  no  in- 
dication sufficiently  clear  to  show  that  the  widow 
took  only  a  life  interest,  and  therefore  that  she 
took  an  absolute  interest  in  all  the  property  :— 
Held,  on  appeal,  (1)  that  there  is  a  well-settled 
rule  that  a  gift  of  income  carries  the  corpus 


2057 


WILL — Construction. 


2068 


unless  there  are  in  the  will  sufficient  words  to  cut 
down  the  gift  to  a  life  interest  only ;  (2)  that 
the  rule  is  merely  one  of  construction,  to  be  read 
only  with  reference  to  other  parts  of  the  will, 
and  applicable  only  when  the  testator  has 
himself  given  no  rale  for  reading  his  will ; 
(3)  that  there  being  nothing  to  cut  down  the 
gift  of  the  property  at  B.  and  P.  and  the  f  urni- 
tare,  the  widow  was  absolutely  entitled  to  those 
properties ;  (4)  that  there  was  sufficient  in  the 
will  to  cut  down  the  gift  of  the  E.  property  and 
the  residuary  real  and  personal  property  to  a  life 
interest  only.  Coward,  In  re,  Coward  v.  Lark- 
man,  hi  L.  T.  285— C.  A.  Affirmed  60  L.  T.  1— 
H.  L.  (E.). 

8ubject  to  Condition.]— A  testator  by  his  will, 
dated  in  1885,  appointed  executors,  and  continued 
as  follows :  "  I  give  to  my  two  sons  ...  all  my 
real  and  personal  property  ...  for  their  natural 
life,  subject  to  the  condition  of  paying"  the 
legacies  therein  mentioned.  "  If  my  sons  marry 
and  have  issue,  I  give  to  each  of  their  heirs  their 
father's  share,  and  to  their  heirs  for  ever ;  if 
there  is  no  male  issue  with  either  of  my  two 
sons  and  there  is  female  issue,  then  the  father's 
share  shall  be  divided  between  them  share  and 
share  alike  as  tenants  in  common,  and  to  their 
heirs  for  ever.  Should  either  of  my  sons  die 
without  issue,  then  such  son's  share  shall  go  to 
my  other  son  and  to  his  heirs  for  ever.  Should 
both  of  my  sons  die  without  issue,  then  at  the 
death  of  the  last  of  them,  I  give  all  my  real  pro- 
perty to  the  whole  of  my  grandchildren  share 
and  share  alike  as  tenants  in  common,  and  to 
their  heirs  for  ever."  He  then  directed  that  his 
two  sons  should  pay  out  of  his  real  property  any 
payment  due  and  owing  thereon  : — Held,  that 
-the  two  sons  took  the  personalty  absolutely  sub- 
ject to  the  conditions  mentioned  in  the  will. 
Score,  In  re,  Tolman  v.  Score,  57  L.  T.  40 — Kay,  J. 

Devise  to  Trustees  in  Trust  for  A.,  subject 
to  Charges  still  subsisting.]— In  1878  W.  B.  de- 
vised and  bequeathed  his  real  and  residuary  per- 
sonal estate  upon  trust  to  permit  his  wife  to 
carry  on  his  business  during  widowhood,  and  to 
employ  therein  any  capital  so  employed  by  the 
testator  at  his  death.  W.  B.  died  in  1879,  having 
since  1865  carried  on  the  business  of  a  licensed 
victualler  on  freehold  premises,  known  as  the 
TV.  hotel.  The  fee  simple  of  the  hotel  belonged 
to  A.  B.,  W.  B.'s  father.  In  1876  A.  B.  gave  and 
devised  his  real  and  leasehold  estates,  including 
the  hotel,  to  trustees  upon  trust  to  pay  the  ex- 
penses of  repairs  and  insurance,  and  tne  expenses 
incidental  to  the  management  of  the  property 
und  the  collection  of  rents,  and  to  pay  out  of 
-the  rents  and  profits  certain  annuities,  and  to 
permit  his  wife  to  occupy  the  house  in  which  he 
died  rent  free,  or  in  default  any  other  house 
which  he  might  die  possessed  of  not  exceeding 
in  yearly  rent  20/.,  and  he  directed  his  trustees 
to  stand  possessed  of  his  said  real  and  leasehold 
estates  in  trust  for  his  son  W.  B.  absolutely. 
After  the  death  of  A.  B.  in  1876,  W.  B.  continued 
an  possession  of  the  hotel  as  before,  and  on  his 
death  his  widow  continued  to  carry  on  business 
there.  In  1886  the  widow  was  adjudged  bank- 
rupt. The  annual  charges  created  by  the  will 
of  A.  B.  were  still  subsisting  : — Held,  that  W.  B. 
was  not  entitled  to  possession  under  the  will  of 
.A-  B.,  and  that  the  hotel  was  not  capital  em- 
ployed by  him  in  his  business,  and  consequently 


did  not  pass  to  the  trustee  in  bankruptcy  of  the 
widow.  Brtiley,  In  re,  Fleming  v.  JBrUley,  56 
L.  T.  853— Stirling,  J. 

Postponement  of  Enjoyment  of  Principal — 
Interim  Gift  of  Income.]— Property  was  assigned 
to  trustees  in  trust  for  S.  for  life,  and  after  her 
death  to  such  of  her  issue  as  she  should  by  will 
appoint.  S.  by  her  will  appointed  two-fifths  of 
the  property  to  two  trustees  of  whom  L.  was  the 
survivor  in  trust  to  pay  the  income  to  her  son 
till  he  should  attain  the  age  of  forty  years,  and 
then  in  trust  for  her  son,  his  executors  and  ad- 
ministrators ;  provided  that  in  case  her  son 
should  assign  his  share  in  the  property,  then  the 
appointment  for  his  benefit  should  be  void,  and 
the  two-fifths  should  be  held  in  trust  for  the 
other  objects  of  the  power.  The  son  died  under 
the  age  of  forty  without  having  assigned  his 
share,  leaving  a  will  of  which  B.  was  executor. 
After  the  death  of  8.,  L.  and  N.  were  appointed 
trustees  of  the  original  settlement.  N.  after- 
wards (with  the  consent  of  the  son's  executor) 
obtained  possession  of  the  son's  share.  Subse- 
quently N.  misappropriated  the  fund.  The 
persons  beneficially  interested  under  the  son's 
will  recovered  judgment  against  B.  for  wilful 
default  in  allowing  the  property  to  remain  in 
N.'s  hands ;  and  B.  being  dead,  his  executor 
brought  an  action  against  D.  to  make  him  liable 
for  the  loss  of  the  fund  : — Held,  on  the  con- 
struction of  the  will  of  S.,  that  the  beneficial  in- 
terest in  two-fifths  of  the  property  vested  abso- 
lutely in  her  son  and  passed  by  his  will.  Scotney 
v.  Lomer,  31  Ch.  D.  380  ;  65  L.  J.,  Ch.  443 ; 
54  L.  T.  194  ;  34  W.  B.  407— C.  A. 

Precatory  Trusts.] — See  post,  col.  2093. 


b.  Life  Estate  ob  Interest. 

By  Implication.] — By  a  marriage  settlement 
certain  trust  funds  stood  limited  in  trust  for  the 
wife  for  life,  and  after  her  death,  in  default  of 
children,  for  such  persons  as  A.  (the  wife)  should 
by  will  appoint,  and,  in  default  of  appointment, 
to  her  next  of  kin.  The  husband  took  no  inte- 
rest under  the  settlement.  By  her  will  A.,  after 
reciting  the  settlement,  directed  and  appointed 
all  such  property  so  subject  to  her  disposition  as 
aforesaid,  and  from  and  after  the  decease  of  her 
said  husband  (but  not  to  affect  the  income 
thereof  during  his  life),  in  equal  fifth  parts  unto 
and  between  her  brother  and  four  sisters  therein 
named.  At  the  date  of  the  will  the  said  brother 
and  sisters  were  five  out  of  six  people  who  would 
have  been  entitled  as  the  next  of  kin  of  A.  if  she 
had  then  died : — Held,  that  the  husband  of  A. 
did  not  take  any  life  estate  by  implication. 
Woodhoute  v.  Spurgeon,  52  L.  J.,  Ch.  825  ;  49 
L.  T.  97  ;  32  W.  R.  225— Denman,  J. 

A  testator  bequeathed  the  residue  of  his  per- 
sonal estate,  which  he  directed  to  be  converted 
into  money  by  his  executors,  and  to  be  divided 
in  sixths.  He  bequeathed  the  interest  of  five- 
sixths  to  W.  L.  for  life,  and  after  his  death  the 
principal  to  his  children,  and  if  he  should  have 
no  children,  the  interest  to  A.  C.  for  life,  and 
after  her  death  the  principal  to  her  children  ; 
and  if  there  should  be  no  child  of  A.  C,  he 
bequeathed  the  five-sixths  to  the  St.  George 
family  in  different  shares.  He  bequeathed  the 
remaining  one-sixth  and  the  interest  and  divi- 


2059 


WILL — Construction. 


9060 


dends  thereof,  fcc,  after  the  decease  of  W.  L.f  to 
the  children  of  A.  C,  and  if  there  should  foe  no 
child  of  A.  C,  to  the  St.  Georges  in  equal 
shares.  There  was  no  child  of  A.  C. :—  Held 
(1)  that  W.  L.  did  not  take  an  interest  for 
Dfe  in  the  one-sixth  by  implication  ;  (2)  that  the 
interest  of  the  one-sixth  went,  daring  the  life  of 
W.  L.  to  the  St  George  family.  Greener. Flood, 
15  L.  R.,  It.  450— M.  B. 

To  Sou  for  life— «  Heir  "-  Bale  in  Shelley's 

Case.] — A  testator  devised  certain  land  to  his 
sons  successively  for  life,  beginning  with  the 
youngest,  ''and  so  on  from  son  to  son  till  it 
arrives  to  the  oldest  son,  then  the  said  estate  to 
be  for  ever  enjoyed  by  the  oldest  surviving  heir 
of  his  oldest  surviving  son  then  living  for  their 
life  or  lives  for  ever  : — Held,  that  upon  the  true 
construction  of  the  will,  the  intention  of  the 
testator  was  to  give  a  life  estate  to  the  "  heir  "  ; 
that  the  word  "  heir"  was  not  to  be  regarded  as 
a  word  of  limitation,  and  therefore  that  the  rule 
in  Shelley's  case  (1  Rep.  93)*  did  not  apply,  and 
that  the  testator's  oldest  surviving  son  took  only 
a  life  estate.  Pedder  v.  Hunt,  18  Q.  B.  D.  565  ; 
56  L.  J.,  Q.  B.  212 ;  56  L.  T.  687  ;  35  W.  R.  371 
— C.  A. 

Absolute  Power  of  Disposal — Enjoyment  in 
Specie— -Cask]— Testator  directed  his  debts  to 
be  paid,  and  Bubject  thereto  gave  his  personal 
estate  to  his  widow  for  her  own  use  as  long  as 
she  might  live,  and  on  her  death  directed  the 
remainder  of  his  personal  estate  and  effects  which 
might  then  exist  to  be  made  into  money,  and 
bequeathed  the  same  to  his  brothers  and  sisters, 
and  appointed  his  widow  co-executrix  of  his  will. 
The  estate  included  a  sum  of  cash  at  the  bank  : — 
Held,  that  the  widow  had  no  absolute  power  of  dis- 
posal over  the  personal  estate,  but  took  only  a  life 
estate,  with  a  right  to  enjoy  the  property  in 
specie,  and  that  the  cash  at  the  bank  must  be 
invested.  Jffolden,  In  re,  Holden  v.  Smith,  57 
I/.  J.,  Ch.  648  ;  59  L.  T.  358— Kay,  J. 

With  power  of  Disposition — "Remain  undis- 
posed of."] — A  testator,  by  his  will,  gave  his 
residue  to  his  wife  absolutely.  By  a  codicil  he 
revoked  this  gift,  and  after  making  a  specific 
gift,  gave  his  residue  to  his  wife  "  for  her  own 
absolute  use  and  benefit  and  disposal ;"  but, 
without  prejudice  to  the  absolute  power  of 
disposal  by  his  wife  of  all  the  said  residue,  in 
case  at  her  decease  any  part  thereof  should 
"remain  undisposed  of"  by  her,  he  gave  the 
same  to  two  other  persons  equally  as  tenants  in 
common,  subject  to  the  payment  by  them  of  his 
wife's  debts  and  funeral  expenses  : — Held,  that 
the  testator's  wife  took  a  life  interest,  with 
a  power  of  disposition  by  act  inter  vivos,  but 
not  by  will.  Pounder,  In  re,  Williams  v. 
Pounder,  56  L.  J.,"  Ch.  113  ;  56  L.  T.  104— 
Kay,  J. 

Life  Estate  with  Power  of  Appointment  or 
absolute  Interest.] — A  testator  left  all  his  pro- 
perty to  his  wife,  in  trust  for  the  uses  there- 
after mentioned.  He  then  bequeathed  certain 
pecuniary  legacies,  and  stated  that  it  was  his 
will  that  his  youngest  son  P.  should  live  and 
reside  with  his  mother,  and  be  attentive  to  her, 
and  directed  by  her  in  order  that  she  might  by 
deed  or  by  her  last  will  and  testament  provide 
for  him  in  such  a  manner  as  to  her  might  seem 


most  expedient  and  proper ;  and  he  appointed 
and  nominated  his  said  wife  his  residuary  legatee 
and  trustee  of  his  will,  in  order  that  she  might 
direct  and  govern  his  said  children  and  assist  to 
arrange  all  matters  between  them ;  and  previoas 
to  her  death — provided  that  she  did  not  many 
again — that  she  might  dispose  of  the  residue  of 
his  property  to  and  amongst  his  said  children 
and  provide  for  his  son  P.  as  she  might  think 
expedient ;  and  he  directed  that  if  she  married 
again  Bhe  should  cease  to  be  trustee,  and  receive 
the  sum  of  1002.  only ;  and  that  in  such  esse 
his  son  E.  should  act  as  trustee  in  her  stead.  Be 
nominated  his  son  £.  and  his  wife  executor  and 
executrix  : — Held,  that  the  testator's  wife  took 
the  residue  absolutely,  and  that  there  was  not  an 
estate  for  life  merely  in  the  wife,  with  power  of 
appointment.  Morrin  v.  Morrin,  19  L.  &,  Ir. 
37— V.-C. 

Absolute  Gift  out  down. J— By  his  will,  dated 
in  1870,  a  testator  gave  all  his  household  furni- 
ture, and  all  his  real  and  personal  estate,  and 
sums  of  money  in  the  house,  and  all  sums  of 
money  in  the  savings  bank,  and  all  other  his 
estate  and  effects  with  the  exception  of  two  5J. 
shares  in  a  certain  company,  unto  his  wife,  sad 
he  gave  to  his  sons  the  two  52.  shares ;  anid  he 
also  desired  that,  at  the  decease  of  his  wife, 
what  might  remain  of  his  property  should  be 
equally  divided  amongst  his  surviving  children. 
The  question  was  whether  this  was  an  absolute 
gift  of  the  property  to  the  testator's  widow,  or 
whether  there  was  a  trust  in  favour  of  the 
testator's  children  :— Held,  that  the  testator's 
widow  took  only  a  life  interest  in  the  properly. 
Shsldon  and  Kemble,  In  re,  53  L.  T.  527— 
Kay,  J.    See  Coward,  In  re,  ante,  coL  2057. 

Remainder  to  Female  Issue.] — A  testator, 
after  reciting  that  he  wished  to  dispose  of  all  his 
worldly  substance,  and  to  settle  and  assure  his 
several  estates  in  the  counties  of  C.  and  L.  to 
the  several  uses  and  purposes  therein  set  forth, 
devised  the  same  unto  his  sister  A.  L.  for  life ; 
and,  on  her  death,  he  declared  it  to  be  his  will 
and  intention  to  settle  and  assure  his  said 
estates  amongst  certain  families  named,  in  the 
following  "  parts  or  proportions  ;"  and  he  then 
gave  to  six  persons  one-sixth  "  part "  each,  and 
declared  that  the  several  six  parts  should  re- 
main to  each  of  the  said  devisees  for  life,  with 
remainder  to  the  first  and  every  other  son  of 
each  of  the  said  devisees,  severally  and  succes- 
sively in  tail  male,  and  in  default  of  such  issue, 
then  with  remainder  to  the  issue  female  of  each 
or  any  of  the  said  devisees,  to  take  as  tenants  in 
common  and  not  as  joint  tenants  ;  and  that,  in 
case  of  the  decease  of  any  of  the  said  six  devisees 
without  issue  male  or  female,  either  in  the  tes- 
tator's lifetime  or  after  his  decease,  then  the 
one-sixth  part  or  parts  of  those  who  should 
happen  to  die  without  issue  should  go  to  and 
augment  the  shares  of  such  survivors,  "so  long 
as  the  entail  intended  to  be  thereby  created 
should  continue  to  subsist,"  and,  in  case  all  his 
said  estates  should,  under  such  limitations  as- 
aforesaid,  vest  in  any  one  of  his  said  devisees,  or 
their  heirs  male,  his  will  and  intention  was,  that 
such  person  should  take  the  name  and  arms  of 
the  testator  : — Held,  that  under  the  above  will* 
the  six  devisees  took  estates  for  life  only,  with 
remainder  (after  the  express  estates  in  tail 
male  limited  to  their  first  and  other  sons)  to 


3061 


.WILL — Construction. 


2062 


their  issue  female  in  fee  as  purchasers.  Shannon 
(Earl)  v.  Good,  15  L.  B.,  Ir.  284— C.  A. 

Gift  of  Bents— Gift  over  on  Death  to  Children.] 
—A  testator  bequeathed  leaseholds  to  a  trustee 
upon  trust  to  give  yearly  equal  portions  of  the 
rents  to  the  two  brothers  and  three  sisters  of  the 
testator ;  that  was  to  say,  each  to  receive  one- 
fifth  part  of  the  net  proceeds  of  rent ;  and  he 
directed  that,  on  the  decease  of  any  or  all  of  his 
brothers  and  sisters,  "  the  same  should  go  to  their 
children  " : — Held,  that  the  brothers  and  sisters 
of  the  testator  took  life  interests  only.  Houghton, 
In  re,  Houghton  v.  Brown,  53  L.  J.,  Ch.  1018  ; 
50  L.  T.  529— Pearson,  J. 

Estate  in  quasi  Tail  —  Issue  taking  as 
Purchasers.] — A  testator  who  held  under  a  lease 
for  lives  renewable  for  ever,  by  his  will  made 
before  the  Wills  Act,  1837,  devised  all  his  estate 
in  the  lands  to  trustees  upon  trust  for  the  main- 
tenance of  his  son  G.  S.  6.  during  his  minority. 
He  directed  that  the  residue  of  the  rents  should 
accumulate  for  G.  S.  B.  till  he  married  or 
attained  twenty-one,  when  the  accumulations 
should  be  handed  over  to  him.  And  as  to  the 
said  lands,  the  testator  declared  that  they  were 
given  to  the  trustees  on  trust  for  accumulation 
of  the  rents  as  aforesaid,  and  in  the  next  place, 
to  suffer  G.  S.  B.  to  take  the  rents  of  the  said 
lands  for  life,  and  after  his  death  then  to  the 
issue  of  G.  8.  R.  lawfully  begotten,  in  such 
shares  and  proportions  as  G.  S.  B.  should 
appoint,  and  for  want  of  appointment,  the  said 
lands  to  go  to  and  among  all  the  lawful  issue  of 
G.  8.  R.  living  at  the  time  of  his  death,  share 
and  share  alike,  and,  if  but  one  child  living,  then 
the  whole  of  the  lands  to  go  to  such  only  child, 
his  or  her  heirs  or  assigns  for  ever.  If  G.  S.  K. 
should  die  without  leaving  issue,  the  testator 
devised  the  lands  over  to  E.  R.  and  T.  R.  in  fee. 
G.  6.  R.  attained  twenty-one  and  obtained  a  fee- 
farm  grant  of  the  said  lands  in  which  it  was 
recited  that  G.  8.  R.  was  tenant  for  life  :— Held, 
that  G.  8.  R.  took  an  estate  for  life  only  in  the 
lands,  with  remainder  to  his  issue  living  at  his 
death  in  quasi  fee,  and  that  on  his  death  without 
issue  E.  R.  and  T.  R.  became  entitled  to  the 
lands.  Rotherham  v.  Rotherham,  13  L.  B.,  Ir. 
429-C.  A. 

Equitable  Estate— Attaining  Twenty-one.]— 
A  testator  devised  freeholds  and  chattels  toge- 
ther to  trustees  on  trust  to  permit  his  wife  to 
reside  on  the  property,  and  have  the  use  of  the 
chattels  until  his  youngest  son  attained  twenty- 
one,  when  the  whole  was  to  be  divided  among 
his  three  children,  they  paying  the  wife  an  an- 
nuity if  then  living :— Held,  that  the  interests 
of  the  children  in  the  freehold  after  the  youngest 
attained  twenty-one  were  equitable.  Foxoke  v. 
Jhayeott,  52  L.  T.  890  ;  33  W.  R.  701— North,  J. 

Payment  of  Bents  to  Harried  Woman— 

Direction  to  Trustees  to  Repair.]— A  testatrix  by 
her  will  directed  her  trustees  to  stand  possessed 
of  the  net  rents  of  her  real  estate,  upon  trust  to 

S,y  the  same  to  Mrs.  W.,  a  married  woman,  for 
e,  for  her  separate  use,  her  receipt  alone  to  be 
a  sufficient  discharge  to  the  trustees ;  and  the 
testatrix  directed  her  trustees,  out  of  the  rents 
of  her  real  estate,  to  keep  in  repair  all  the 
buildings  on  the  estate  during  the  period  of  their 
trust,  and  also  the  chancel  of  P.  Church.    No 


power  of  sale  or  leasing  was  contained  in  the 
will : — Held,  that,  notwithstanding  the  direction 
to  the  trustees  with  respect  to  repairs,  Mrs.  W. 
was  equitable  tenant  for  life  of  the  settled  land, 
and,  as  such,  was  entitled  to  be  let  into  the  pos- 
session and  management  of  the  estate,  upon  her 
undertaking  to  see  to  the  repairs.  Bentley,  In 
re,  Wade  v.  Wilson,  54  L.  J.,  Ch.  782  ;  33  W.  R. 
610— Pearson,  J, 


c.  Estate  Tail. 

"  Child  or  Children  "— "  Dying  without  Issue  " 
—Bale  in  Shelley's  Case.]— A  will  made  in  1820 
contained  the  following  clause,  "I  give  and 
devise  unto  my  eldest  son  Thomas  all  my  real 
and  freehold  estate  and  all  leases  and  leasehold 
premises  now  in  my  possession  (subject  to  the 
payment  of  the  rents  and  the  performance  of  the 
covenants  mentioned  in  the  said  indentures  of 
leases)  during  the  term  of  his  natural  life,  and 
after  his  decease  to  his  legitimate  child  or  children 
(if  there  be  any)  ;  but  if  he  dies  without  issue, 
my  will  is  it  may  go  unto  my  other  son  William 
during  the  term  of  his  natural  life,  and  afterwards 
to  bis  legitimate  child  or  children  (if  any)  ;  but 
if  he  should  likewise  die  without  issue,  my  will  is 
it  may  go  to  my  daughter  Mary  and  to  her  heirs 
and  assigns  for  ever."  The  will  then  gave  legacies 
to  the  second  son  and  the  daughters,  with  provi- 
sions for  the  daughters,  to  be  paid  in  the  first 
instance  by  Thomas,  but  to  be  repaid  in  part  or 
in  whole  to  him  in  certain  events  by  his  successor 
in  the  estate.  Thomas  died  without  issue : — Held, 
by  Earl  Cairns  and  Lords  Blackburn  and  Fitz- 
gerald, that  reading  the  whole  will  together, 
Thomas  took  an  estate  tail  in  the  realty.  Contra, 
by  the  Earl  of  Bel  borne,  L.  C,  and  Lord  B ram- 
well,  that  Thomas  took  an  estate  for  life,  with 
remainder  to  his  children  (if  any)  in  fee  as 
purchasers.  Bowen  v.  Lewi*,  9  App.  Cas.  890 ; 
54  L.  J.,  Q.  B.  55  ;  62  L.  T.  189— H.  L.  (E.). 

"Issue"  with  Words  of  Limitation  super- 
added.]—A  testator  by  his  will,  dated  1860,  dis- 
posed of  all  his  real  estate,  subject  to  an  interest 
therein  to  his  wife  for  life,  in  favour  of  his  six 
nephews,  "  and  all  my  right,  title,  and  interest  to 
and  in  the  same  and  every  part  thereof,  to  be 
equally  divided  amongst  my  six  nephews,  share 
and  share  alike,  and  their  issue  after  them,  to 
and  for  their  heirs,  executors,  administrators, 
and  assigns."  The  question  arose  whether  the 
word  "  issue,"  with  the  words  of  limitation 
superadded,  operated  to  give  an  estate  tail,  or 
whether  the  issue  took  as  purchasers  : — Held, 
that  the  words  in  question  created  an  estate  tail 
in  the  six  nephews ;  that  the  addition  of  a 
limitation  to  the  heirs  general  of  the  issue 
would  not  prevent  the  word  "issue"  from 
operating  to  give  an  estate  tail  as  a  word  of 
limitation ;  that  in  this  case  the  words  "equally 
divided  "  made  the  estate  divisible  into  six  shares, 
and  there  were  no  words  to  subdivide  those 
shares,  and  consequently  that  the  subsequent 
words  "heirs,  executors,  administrators,  and 
assigns,"  must  be  rejected.  William*  v.  William** 
61  L.  T.  779  ;  33  W.  B.  118— Chitty,  J. 

Implied  Estate  Tail— Bule  in  Shelley's  Case.] 
— G.,  who  died  in  1837,  by  will  devised  certain 
freehold  hereditaments  to  W.  B.  for  life,  and  if 
he  should  die  without  having  a  son,  over.    W.  B. 


2063 


"WILL— Construction. 


2064 


entered  into  possession  of  the  property  and  died 
in  1882,  leaving  a  son,  W.  E.  B.,  who  entered 
into  possession  of  the  property,  and  contracted 
to  sell  it.  The  purchaser  having  objected  to  the 
title,  a  summons  was  taken  out  under  the  Vendor 
and  Purchaser  Act : — Held,  that  there  was  an 
implied  gift  to  the  son  of  W.  B.,  and  this  implied 
gift  following  on  the  gift  to  W.  B.  for  life,  was 
equivalent  to  a  word  of  limitation,  and  therefore, 
by  the  rule  in  Shelley's  case,  gave  W.  B.  an  estate 
in  tail  male,  and  as  this  had  not  been  barred, 
W.  E.  B.  was  entitled  to  the  property  for  an 
estate  in  tail  male.  Bird  and  Barnard,  In  re, 
69  L.  T.  166— North,  J. 

Contingent  Estate  Tail.]— Devise  of  the 

testator's  Galway  estate  to  the  use  of  his 
daughter  F.  for  life  ;  remainder  to  the  use  of  the 
second  son  of  F.,  and  the  heirs  male  of  the  body 
of  such  second  son ;  remainder  to  the  use  of  the 
third,  fourth,  and  all  and  every  the  son  and  sons 
of  F.,  severally,  successively,  and  in  remainder, 
one  after  another,  as  they  shall  be  in  order  of  age 
and  priority  of  birth,  and  the  heirs  male  of  the 
body  and  bodies  of  all  and  every  such  son  and 
sons ;  remainder  to  the  daughter  and  daughters 
of  F.,  equally  to  be  divided  amongst  them  in  such 
shares,  &c,  as  F.  should  by  deed  or  will  appoint, 
as  tenants  in  common,  and  the  heirs  of  the  body 
and  bodies  of  all  and  every  such  daughter  and 
daughters ;  "  and  in  default  of  issue  male  or 
female  of  F.,"  to  the  use  of  testator's  daughter 
Marion,  and  her  issue  male  or  female,  in  the 
same  manner  as  other  estates  of  the  testator  were 
by  the  same  will  devised  to  her  and  her  issue ; 
remainder  to  the  testator's  right  heirs,  on  the 
express  condition  that  none  of  his  daughters 
should  take  the  veil  and  become  a  nun.  And  in 
case  any  of  them  should  do  so,  such  daughter 
should  forfeit  all  her  right  and  title  to  such  estate 
and  lands,  and  her  estate  so  forfeited  should 
thenceforth  be  vested  in  and  divided  among  her 
surviving  sisters  (excepting  two)  and  their  issue, 
share  and  share  alike.  And  he  left  the  residue 
of  his  property  to  his  four  daughters,  M.,  L.,  F., 
and  Marion.  And  in  case  all  his  children  should 
die  without  issue,  he  devised  all  his  estates  to  his 
wife  for  life,  and  after  her  decease  to  his  right 
heirs  for  ever.  In  1865  F.,  by  a  disentailing 
deed,  recited  the  limitations  of  the  Galway 
estate,  and  that  she  had  been  advised  that  she 
might  be  entitled  under  them  to  an  estate  tail 
by  implication  in  remainder,  expectant  upon  the 
determination  of  the  express  estates  tail  limited 
to  the  second  and  other  succeeding  sons,  and  to 
her  daughters  ;  and  that  she  was  desirous  in  the 
event  of  her  being  entitled  to  such  estate  tail  in 
remainder  by  implication,  of  barring  the  same, 
and  converting  it  into  an  estate  in  fee  simple, 
granted  all  the  lands  in  Galway  so  devised  to  her, 
and  all  other  the  hereditaments  in  which,  under 
and  by  virtue  of  the  said  will,  she  was  entitled  to 
any  estate  tail,  &&,  and  all  her  estate  and  interest 
therein,  to  a  trustee,  discharged  from  all  remain- 
ders, &c.,  to  such  uses  as  she  should  appoint ; 
and  in  default,  and  subject  to  such  appointment, 
to  the  use  of  F.  and  her  heirs.  In  1866  Marion 
became  a  professed  nun.  In  1868  F.  by  her  will 
devised  the  residue  of  her  property,  subject  to 
some  pecuniary  legacies  to  Marion,  and  died 
without  issue  in  1880 :— Held,  1.  That  F.  did  not 
take  an  estate  tail  by  implication  in  the  Galway 
lands.  2.  That,  on  Marion  becoming  a  professed 
nun,  her  vested  remainder  for  life  passed  to  M.,  | 


L.,  and  F.f  as  tenants  in  common  in  quasi  tail. 
3.  That  F.'s  quasi  estate  tail  in  one-third  of 
Marion's  life  estate  was  not  barred  by  the  dis- 
entailing deed,  and  that  on  F.'s  death  one-third 
of  Marion's  life  estate,  which  went  over  to  F.  on 
Marion  becoming  a  professed  nun,  passed  under 
the  residuary  clause  in  the  original  testator's  will 
to  M.,  L.,  F.,  and  Marion  absolutely.  Oration 
v.  Langdale,  11  L.  B.,  Ir.  473 — M.  B. 

Limitation  whether  executory.] — By  his  will 
a  testator  devised  his  W.  property  to  J.F.  L.  and 
declared  that  he  was  to  hold  it  with  other  pro- 
perty for  his  life,  and  after  his  decease  to  the  use 
of  his  first  and  other  sons  successively,  one  after 
another,  in  tail  male,  with  several  remainders 
over.  '  He  afterwards  purchased  the  lands  of  D., 
and  by  a  codicil  devised  them  to  J.  F.  L.,  he 
paying  any  part  of  the  purchase-money  which 
remained  unpaid,  to  hold  it  subject  to  the  same 
entail  as  the  W.  property  ;  and  by  another 
codicil,  dated  six  years  afterwards,  devised  it  to 
J.  F.  L.  and  "  entailed  it  in  him  and  his  issue 
male "  : — Held,  that  J.  F.  L.  took  an  estate  in 
tail  mail  in  the  lands  of  D.  Lowry  v.  Zotvry,  13 
L.  R.,  Ir.  317— M.  B. 

Charge  on  Lands.] — By  a  will,  coming  into 
operation  prior  to  the  Wills  Act,  the  testator 
devised  all  the  freehold  estate,  right,  title,  and 
interest,  in  certain  lands  to  his  wife  for  life 
subject  to  legacies  ;  remainder  to  his  son  J.  for 
life  ;  remainder,  after  the  decease  of  J.T  M  to  his 
first  and  every  other  son  lawfully  to  be  begotten 
according  to  seniority  of  age  and  priority  of 
birth  ; "  remainder  to  T.  for  life  ;  remainder  to 
his  first  and  every  other  son  and  their  heirs.  In 
a  subsequent  part  of  the  will  the  testator  be- 
queathed a  sum  of  money,  charged  on  the  said 
lands  to  his  daughter  M.,  and  desired  that,  in 
case  she  should  die  unmarried,  it  should  go  and 
enure  to  J.,  if  then  living,  or  the  heirs  male  of 
his  body.  In  action  brought  by  J.  BM  who  was 
J.'s  younger  son,  to  recover  possession  of  the 
lands  on  the  title  : — Held,  that  the  plaintiff  was 
entitled  to  an  immediate  estate  for  his  life,  and 
accordingly  to  recover  possession  of  the  lands. 
Palmer  v.  Palmer,  18  L.  R.,  Ir.  192— C.  A. 

Subject  to    Condition.]— A    testator  by  his 
will,  dated  in   1885,  appointed  executors,  and 
continued  as  follows :  '*  I  give  to  my  two  sons 
...    all  my  real  and  personal  property  .  .  . 
for  their  natural  life,  subject  to  the  condition  of 
paying"  the  legacies  therein  mentioned.    "If 
my  sons  marry  and  have  issue,  I  give  to  each  of 
their  heirs  their  father's  share,  and  to  their  heirs 
for  ever ;  if  there  is  no  male  issue  with  either  of 
my  two  sons,  and  there  is  female  issue,  then  the 
father's  share  shall  be  divided  between  them 
share  and  share  alike  as  tenants  in  common,  and 
to  their  heirs  for  ever.    Should  either  of  my  sons 
die  without  issue,  then  such  son's  share  shall  go 
to  my  other  son  and  to  his  heirs  for  ever.   Should 
both  of  my  sons  die  without  issue,  then  at  the 
death  of  the  last  of  them,  I  give  all  my  real  pro- 
perty to  the  whole  of  my  grandchildren  snare 
and  share  alike  as  tenants  in  common,  and  to 
their  heirs  for  ever."    He  then  directed  that  bis 
two  sons  should  pay  out  of  his  real  property  any 
payment  due  and  owing  thereon : — Held,  that 
the  two  sons  took  the  real  estate  in  tail  male. 
Score,  In  re,  Iblman  v.  Score,  67  L.  T.  40— 
Kay,  J, 


2065 


WILL— Comtinction. 


2066 


5.    BEQUESTS  AND  DEVISES. 
a.   Pabticulab  Words. 

General  Wordi  followed  by  Particular— Beai- 
4ne.] — A  testator  by  his  will  having  made  a 
bequest  of  a  sum  of  money  secured  by  a  mort- 
gage proceeded  in  the  following  terms : — I  leave 
*'  the  remainder  of  my  personal  property  in  funds, 
royal  bank,  and  other  deposit  dockets  to  my 
wife  absolutely."  He  left  pecuniary  legacies  to 
two  individuals  : — Held,  that  the  words  "in 
funds,  royal  bank,  and  other  deposit  dockets," 
<lid  not  cut  down  the  generality  of  the  gift  of 
**  the  remainder  "  of  his  personal  estate,  which 
passed  to  the  testator's  wife  under  the  bequest. 
light  v.  Featherstonhavgh,  13  L.  R.,  Ir.401— V.-C. 

"  All  my  property  Leasehold  and  Freehold."  1 
— R.  by  will,  after  appointing  executors  and 
directing  his  debts  and  funeral  expenses  to  be 
paid,  gave  his  wife  "  all  my  property  leasehold 
and  freehold  which  I  now  possess  : " — Held,  that 
All  the  testator's  real  and  personal  estate  passed 
under  the  gift  to  his  widow,  and  not  only  his 
leaseholds  and  freeholds.  Roberts,  In  re,  Kiff 
▼.  Roberta  55  L.  T.  498  ;  36  W.  R.  176— C.  A. 
Affirming  55  L.  J.,  Ch.  628—  Pearson,  J.  See 
JPartal  and  Lamb,  In  re,  post,  col,  2087. 

"  All  my  Interest  "—Will  made  before  1  Viet. 

c.  26.] — A  testator  in  a  will  made  before  the 
Wills  Act  gave  and  bequeathed  "  all  the  interest 
of  my  houses  and  cottages  situated  as  follows." 
He  then  proceeded  to  dispose  of  this  property, 
which  was  copyhold,  and,  after  giving  life 
interests,  concluded  with  a  gift  to  T.  S. :— Held, 
that  the  words  "  all  my  interest "  at  the  com- 
mencement of  the  will  ran  through  the  whole 
will,  and  were  not  in  the  nature  of  a  recital 
merely,  and  that  T.  S.  took  the  fee.  De  la  Ilunt 
4ind  Pennington,  In  re,  57  L.  T.  874 — Chitty,  J. 

"All  my  Personal  Property" — Enumeration 
comprising  Beal  Estate — After-acquired  Free- 
hold*.]— A  testator,  by  his  will,  dated  in  1875, 
gave  and  devised  to  the  wife  Rebecca  "  all  my 
personal  property,  wherewith  it  has  pleased  God 
to  bless  me;  that  is,  my  freehold  land,  and  my 
two   cottages,  Pennce  Birr,  situated  at  Clow- 
«top  .   .   .  also  my  five  leasehold  houses  .  .  . 
to  have  and  to  hold  the  same  for  her  natural 
life."    He  then  directed  her  to  provide  "  out  of 
the  rents  of  the  above  property  "  for  a  grand- 
•daughter  of   hers,  and   concluded,  "  my  wife 
Kebecca  to  be  sole  executor  of  the  same."    Sub- 
sequently to  the  date  of  his  will  the  testator 
acquired  other  freehold  property  at  Clowstop,  of 
•which,  together  with  personal  property,  besides 
the  leaseholds,  he  died  possessed.    The  question 
was,  what  property  passed  by  the  will : — Held, 
that  the  words  "  personal  property "  were  not 
used  in  their  technical  sense ;  that  the  testator 
meant  to  give  all  the  property  of  every  kind  be- 
longing to  him  personally ;   that  this  general 
description  was  not  cut  down  by  the  words  of 
enumeration  which  followed  ;  and  that  the  widow 
was  entitled,  for  her  life,  to  all  the  real  and  per- 
sonal estate  of  the  testator  which  he  possessed  at 
the  date  of  his  death.    Smalley,  In  re,  Smalley 
▼.  Snudley,  49  L.  T.  662— Kay,  J. 


«< 


Seal  Estate" — Leaseholds  for  Tears.] — A 
testator  by  his  will,  dated  in  1870,  declared  that 
jug  trustees  should  stand  possessed  of  and  inter- 


ested in  the  annual  income  and  proceeds  of  his 
real  and  personal  estate  in  trust  to  pay  an 
annuity  to  his  wife,  and  after  her  decease  he 
declared  and  directed  that  his  trustees  should 
stand  possessed  of  and  interested  in  his  real  and 
personal  estate  upon  the  trusts  and  for  the 
intents  and  purposes  following,  that  is  to  say, 
"  as  to  my  real  estates  wheresoever  situate  (the 
Victoria  Park  Cemetery  in  the  parish  of  St. 
Matthew,  Bethnal  Green,  excepted)  "  in  trust  to 
pay  the  annual  rents  and  proceeds  thereof  to 
two  children  as  therein  mentioned,  "  and  as  to 
my  freehold  estate  called  the  Victoria  Park 
Cemetery,  and  my  personal  estate  wheresoever 
situated,  upon  trust  to  pay  the  dividends,  inte- 
rest, and  annual  proceeds  thereof,"  to  his  five 
daughters  in  equal  proportions.  The  personal 
estate  comprised  certain  leaseholds  for  years  : — 
Held,  that  according  to  the  true  construction  of 
the  26th  section  of  the  Wills  Act  (1  Vict.  c.  26) 
the  leaseholds  for  years  did  not  pass  under  the 
gift  of  the  real  estates.  Wilson  v.  Eden  (16 
Beav.  153),  discussed  ;  Turner  v.  Turner  (21 
L.  J.,  Ch.  843),  and  Chilly  v.  Davis  (10  L.  JR., 
£q.  562),  discussed  and  distinguished.  Butler 
v.  Butler,  28  Ch.  D.  66 ;  64  L.  J.,  Ch.  197  ;  52 
L.  T.  90 ;  33  W.  R.  192— Chitty,  J. 

B.,  by  will,  gave  all  his  real  estate  in  Kent  to 
trustees  upon  trust  for  his  sons,  in  strict  settle- 
ment, and  he  gave  all  his  real  estate  in  the 
several  counties  of  Durham  and  Middlesex,  and 
elsewhere,  and  certain  land  at  Stillington,  in  the 
county  of  Durham,  held  on  lease  from  Merton 
College,  Oxford,  and  all  the  residue  of  his 
personal  estate,  upon  trust  as  to  the  personal 
estate  for  sale  and  conversion  as  therein  men- 
tioned, and  as  to  the  said  real  and  leasehold 
estates  in  the  counties  of  Durham  and  Middlesex, 
subject  as  to  the  said  leasehold  estate  to  the 
rents  and  covenants  in  the  then  present  or  any 
future  lease  thereof  reserved  or  contained,  upon 
the  like  trusts  as  were  thereinbefore  declared 
concerning  the  hereditaments  in  Kent.  The 
testator  at  his  death  possessed  in  Kent  a  freehold 
mansion  and  estate  ;  in  Middlesex,  a  leasehold 
house  only,  and  no  real  estate  properly  so  called  ; 
in  Durham,  both  freehold  and  leasehold  lands  in 
addition  to  the  lands  at  Stillington  mentioned 
in  the  will :— Held,  that  s.  26  of  the  Wills  Act 
applied,  and  all  the  leaseholds  passed  under  the 
gift  of  real  estate  in  the  counties  of  Durham 
and  Middlesex.  Davison,  In  re,  Greenwcll  v. 
Davison,  58  L.  T.  304— North,  J. 

"My  freehold  farm  and  lands  "— Copyholds.] 
— A  testator  devised  a  farm  by  the  description  of 
"  my  freehold  farm  and  lands  situate  at  Edgware, 
and  now  in  the  occupation  of  James  Bray."  The 
will  contained  no  residuary  devise.  The  farm 
comprised  about  seventy-six  acres,  of  which 
twenty-six  were  copyhold : — Held,  that  the 
copyhold  parts  of  the  farm  passed  under  the 
devise.  Ilall  v.  Fisher  (1  Coll.  47)  and  Stone  v. 
Greening  (13  Sim.  390)  discussed  and  questioned. 
Bright-Smith,  In  re,  Bright-Smith  v.  Bright- 
Smith,  31  Ch.  D.  314  ;  55  L.  J.,  Ch.  365  ;  64  L.  T. 
47 ;  34  W.  R.  252— Chitty,  J. 

"  Leasehold  House  "  —  Stables,  whether  in- 
cluded.]— A  testator  bequeathed  to  his  wife  his 
leasehold  house,  No.  32,  Princes  Gate.  Together 
with  this  house  he  had  at  the  time  of  his 
death  occupied  stables  called  No.  3,  Princes- 
mews,  which  were  originally  held  under  a  dif- 


2067 


WILL — Construction. 


2068 


ferent  lease  from  the  house,  though  each  lease 
was  entered  into  on  the  same  day,  and  they  were 
for  exactly  similar  terms,  and  between  the  same 
lessor  and  lessee.  Upon  the  purchase  of  the 
house  and  stables  by  the  testator  from  the  original 
lessee,  they  were  assigned  to  him  by  one  deed, 
and  afterwards  the  testator  again  assigned  both 
house  and  stables  by  one  deed  by  way  of  mort- 
gage :— Held,  that  the  stables  passed  with  the 
house  to  the  wife.  Miusatta,  In  re,  Mooatta  v. 
Mooatta,  49  L.  T.  629  j  32  W.  R.  477— Pearson,  J. 

"Lease  of  House  "—Freehold.}— A  testator 
gave  the  lease  of  the  house  in  which  he  should 
be  living  at  the  time  of  his  decease  to  his  wife. 
At  the  date  of  the  will  he  was  living  in  a  house 
he  held  for  a  short  term  at  a  rack-rent ;  he  sub- 
sequently bought  and  went  to  reside  at  a  free- 
hold house  where  he  died ; — Held,  that  the 
freehold  house  was  not  devised  to  the  testator's 
widow.  Knight,  In  re,  Knight  v.  Burgess,  34 
Ch.  D.  518  ;  56  L.  J.,  Ch.  770  ;  56  L.  T.  630  ;  35 
W.  R.  536— North,  J. 

"  Temporal  Effects."]—"  Temporal  effects  "  in 
a  will  were  held  to  include  real  estate.  Sheridan, 
In  re,  17  L.  R.,  Ir.  179— Monroe,  J. 

"  Money."] — In  construing  a  will  no  absolute 
technical  meaning  should  be  giving  to  such  a 
word  as  "  money,"  the  meaning  of  which  must 
depend  upon  the  context,  if  any,  and  such  sur- 
rounding circumstances  as  the  court  can  take 
into  consideration.  A  testatrix  who  was  pos- 
sessed of  cash,  securities,  leaseholds,  furniture, 
and  effects,  by  her  will,  made  in  expectation  of 
her  death,  which  occurred  two  days  after  its 
date,  gave  "  one  half  of  the  money  of  which  I 
am  possessed  to  H.,  and  the  remainder  equally 
between  0.  and  S.,  and  after  them  to  their  chil- 
dren "  : — Held,  that  the  word  "  money  "  passed 
all  the  personal  estate.  Cadogan,  In  re,  Cadogan 
v.  Palagi,  25  Ch.  D.  154  ;  53  L.  J.,  Ch.  207  ;  49 
L.  T.  666  ;  32  W.  R.  57— Kay,  J. 

L.  by  her  will  desired  that  all  her  debts, 
funeral  and  testamentary  expenses  should  be 
paid,  and  if  she  should  not  leave  enough  money 
for  that  purpose,  she  desired  that  sufficient  to 
pay  her  debts  might  be  sold  of  the  property  she 
purchased  from  R.  She  gave  the  remainder  of 
of  that  property  to  W.  specifically ;  and,  after 
making  certain  specific  bequests  of  furniture  and 
jewellery,  gave  her  interest  in  certain  real  estate 
to  A.  and  made  him  her  residuary  legatee.  The 
property  purchased  from  R.  was  leasehold,  held 
for  a  very  long  term  of  years.  The  testatrix  at 
her  death  possessed  no  actual  cash.  She  had  a 
small  sum  due  to  her  for  rents,  and  the  half  of  a 
turnpike  bond,  besides  furniture,  the  property 
purchased  from  R.,  one  leasehold  dwelling-house, 
and  the  real  estate  specifically  devised  to  A. : — 
Held,  that  the  word  "  money  "  must  be  taken  to 
mean  not  the  general  personal  estate,  but  the 
rents  and  money  due  on  the  bond,  and  those 
being  exhausted,  the  residue  of  the  debts  must 
be  paid  out  of  the  property  purchased  from  R. 
in  exoneration  of  the  furniture  and  leaseholds. 
Lloyd  v.  Lloyd,  54  L.  T.  841 ;  34  W.  R.  608— 
North,  J. 

At  the  date  of  the  will  in  August,  1881,  the 
testatrix  had  over  6002.  at  her  bankers.  In 
February,  1883,  she  invested  600/.  in  the  pur- 
chase of  586Z.  Consols.  At  the  date  of  her  death 
in  May,  1884,  she  had  the  586/.  Consols,  555/.  at 


her  bankers,  and  8/.  cash  in  her  house :— Held, 
that  the  word  "  money  "  in  the  will  ought  not  to 
be  extended  beyond  its  strict  meaning.  Sutton, 
In  re,  Stone  v.  Att.-Oen,,  28  Ch.  D.  464 ;  33 
W.  R.  619— Pearson,  J. 

"All  my  Money •"  — Extent  of  Gift.]  — A 
testatrix,  by  her  will  dated  in  1874,  appointed 
executors  thereof,  gave  pecuniary  legacies  to  ser- 
vants, and  directed  her  debts  and  expenses  to  be 
paid,  and  continued  : — "  I  give  in  equal  shares 
all  my  moneys  to  my  brothers  and  sisters  as  shall 
be  living  at  my  decease."  Then  she  went 
minutely  through  her  furniture  and  similar 
articles,  bequeathing  them  to  different  members 
of  her  family,  but  some  articles  of  f urnitore, 
<fec,  were  omitted  from  the  bequest,  and  the  will 
contained  no  mention  or  express  disposition  of 
any  stocks  or  investments,  nor  any  residuary 
clause.  By  a  codicil,  dated  in  1883,  the  testatrix 
bequeathed  her  furniture,  &c,  which  might  be 
in  the  house  in  which  she  and  her  sister  X. 
should  be  living  together  at  the  time  of  her 
decease  to  X.  for  life,  and,  after  her  death,  she 
directed  that  the  same  should  belong  to  the  per- 
sons to  whom  the  same  effects  were  bequeathed 
by  her  will,  and  in  all  other  respects  she  con- 
firmed her  will.  The  testatrix  died  in  Septem- 
ber, 1883,  possessed  of  New  Three  per  Cents, 
standing  in  her  name  ;  bonds  of  a  foreign  govern- 
ment payable  to  bearer  ;  consolidated  and  pre- 
ference stock  of  a  railway  company,  registered  in 
her  name  in  the  company's  books ;  sums  due  to 
her  ;  cash  in  her  house  ;  and  furniture,  &c,  some 
of  which  was  not  specifically  mentioned  in  the 
will : — Held,  that  the  intention  of  the  testatrix 
appearing  from  her  will  and  codicil  was  to  dis- 
pose— first,  of  all  her  moneys ;  secondly,  of  all 
her  furniture,  &c. ;  and  therefore  that,  though 
the  gift  of  all  her  moneys  could  not  be  read  as  a 
residuary  clause,  it  must  be  read  as  applying  to- 
all  the  property  of  which  the  testatrix  died  pos- 
sessed, other  than  furniture,  &c,  and  that  the 
f  urnitare,  &a,  not  specifically  disposed  of  was, 
therefore,  the  only  property  as  to  which  the 
testatrix  had  died  intestate.  Lowe  v.  Thorn** 
(5  De  Gex.  M.  &  6. 315),  distinguished.  Totcnlry. 
In  re,  Townley  v.  Tovmley,  53  L.  J.,  Ch.  516 ;  50 
L.  T.  394  ;  32  W.  R.  549— Pearson,  J. 

"  Remainder  of  my  Money."] — The  words 
"  remainder  of  my  money  "  pass  all  stocks  and 
investments  of  money,  but  not  the  general 
residue  other  than  such  investments.  Hart  v. 
Hernandez,  52  L.  T.  217— Pearson,  J. 

"  Securities  for  Honey."]— A  testator,  who 
died  in  1878,  bequeathed  all  his  "  moneys  due 
on  mortgage,  securities  for  money,  and  ready 
money,"  to  trustees  upon  trust  for  his  children. 
Part  of  the  testator's  property  consisted  of  the 
following :  (1)  Consols  ;  (2)  Proportion  of  divi- 
dend on  such  Consols  to  the  date  of  the  testator's 
death ;  (3)  Promissory  notes  ;  and  (4)  Railway 
debenture  stocks.  The  question  was,  whether 
such  property  passed  under  the  specific  gift  '•— 
Held,  that  the  Consols  and  promissory  notes 
were  "  securities  for  money  "  within  the  mean- 
ing of  the  gift,  and  so  also  the  railway  debenture 
stocks,  it  being  expressly  provided  by  s.  23  of 
the  Companies  Clauses  Act,  1863,  that  deben- 
ture stock  and  interest  thereon  should  be  a 
charge  upon  the  undertaking  of  the  company. 
But,held,  that  the  proportion  of  dividend  on  the 


2069 


WILL — Construction. 


2070 


Consols  did  not  pass,  as  the  Apportionment  Act, 
1870,  applied,  and  the  dividend  must  therefore 
be  apportioned  as  at  the  date  of  the  testator's 
death.  Beaven,  In  re,  Beaten  v.  Beaven,  53  L.  T. 
245 — Kay,  J. 

"  Stock  Standing  in  my  Name."]— Where  a 
testator  made  a  specific  bequest  of  "  all  my  stock 
standing  in  my  name  in  various  companies, 
together  with  all  bonds,  &c."  : — Held,  that  Bums 
in  Consols,  and  in  New  Three  per  Cent.  Annui- 
ties, a  thirty  years*  annuity,  also  sums  of  New 
Zealand  Four  per  Cent,  stock  ;  of  Victoria,  1883, 
Four  per  Cent,  stock  ;  of  New  South  Wales  Four 
per  Cent,  stock ;  of  Metropolitan  Board  of  Works 
stock ;  of  Nottingham  Corporation  stock  and 
dividends,  passed  under  the  bequest.  Parrott, 
In  re,  Parrott  v.  Parrott,  63  L.  T.  12— V.-C.  B. 

"  Shares  "  in  Company— Debentures.]— A  tes- 
tator bequeathed  all  his  stock,  shares,  and  deben- 
tures in  the  M.  bank,  shares  in  four  other  com- 
panies (including  the  A.  Gas  Company),  and  all 
other  shares  in  banks  or  public  companies,  not 
otherwise  disposed  of.  At  the  time  or  his  death 
the  testator  possessed  one  hundred  and  thirty- 
five  shares  in  the  A.  Gas  Company,  and  also 
2,0002.  debentures  in  that  company  : — Held,  that 
the  debentures  did  not  pass  under  the  bequest. 
Lmard  v.  Lane  (14  Ch.  D.  856)  questioned. 
ZKllo*  v.  Arkins  17  L.  R.,  Ir.  636— C.  A. 

"My  Property  atB.'s  Bank" — Cash  Balance 
— Share  Certificates.] — Bequest  of  "half  my 
property  at  B.'s  bank."  At  the  time  of  his  will 
and  of  his  death  the  testator  had  at  R.'s  bank  in 
Paris  a  cash  balance  and  certificates  of  French 
shares,  some  inscribed  and  some  transferable  by 
delivery,  which  were  deposited  with  the  bankers, 
who  received  the  dividends  and  carried  them  to 
his  credit.  He  had  nothing  else  at  the  bank  : — 
Held,  by  the  court  of  first  instance,  that  only 
half  of  the  cash  balance  passed  by  the  bequest : 
— But  held,  on  appeal,  that  a  moiety  of  the  shares 
also  passed.  Prater,  In  re,  Desinge  v.  Beare, 
37  Ch.  D.  481 ;  57  L.  J.,  Ch.  342  ;  58  L.  T.  784  ; 
36  W.  B.  561— C.  A. 

Bequest  of  Fund  "  to  be  Settled."]— A  testator 
bequeathed  as  follows :  "  To  my  daughter  A.,  wife 
of  M.  W.,  I  bequeath  10,000/.  This  amount  to 
be  settled  upon  her  for  her  life,  and  to  be  in- 
Tested  for  her  in  good  securities  in  the  names  of 
two  or  more  trustees.  At  her  death  8,000/.  of 
the  above  sum  to  be  divided  equally  amongst 
her  children,  and  the  remaining  2,000/.  to  be 
given  to  her  husband  if  living ;  if  deceased,  then 
the  whole  amount  is  to  be  equally  divided 
amongst  her  children."  The  daughter  and  her 
husband  and  child  applied  for  the  sanction  of 
the  court  to  a  settlement  of  the  legacy : — Held, 
that  a  settlement  ought  to  be  directed,  treating 
the  directions  in  the  will  as  instructions  for  a 
settlement.  Parrott,  In  re,  Walter  v.  Parrott, 
33  Ch.  D.  274  ;  66  L.  T.  132  ;  34  W.  R.  553— C.  A. 

Bequest  of  2,0002.,  for  the  benefit  of  a  feme  sole, 
"  to  be  paid  upon  her  marriage,  and  to  be  settled 
upon  her  by  her  settlement/'  the  interest  to  be 
paid  to  her  in  the  meantime ;  and,  in  case  she 
should  not  marry  before  attaining  the  age  of 
thirty-five  years,  the  principal  sum  to  be  paid  to 
herself.  The  legatee  married  under  the  age  of 
thirty-five  years,  and  applied  for  payment  of  a 
sum  of  money  in  court,  which  represented  the 
legacy : — Held,  that  a  settlement  should  be  made 


of  the  legacy  upon  the  legatee  and  her  children- 
Duckett  v.  Thompson,  11  L.  B.,  Ir.  424— V.-C. 

* 

"  To  select  and  set  aside  Collection."] — 

A  testatrix  bequeathed  certain  legacies  to  A.  C, 
sixth  Earl  of  £.,  and  as  to  all  her  household 
furniture,  paintings,  books,  china,  and  the  whole 
contents  of  her  house,  she  bequeathed  the  same 
to  her  trustees  and  executors  upon  trust  that 
they  should  in  the  first  place  select  and  set  aside 
a  collection  of  the  best  paintings,  statuary,  and 
china  for  the  said  Earl  of  E.,  and  his  successors, 
to  be  held  and  settled  as  heirlooms,  and  to  go 
with  the  title :— Held,  that  the  gift  was  a  clear 
direction  to  settle,  and  created  an  executory 
trust,  and  a  settlement  was  directed  (to  be 
settled  in  chambers)  giving  a  life  interest  to  the 
sixth  Earl,  with  remainder  to  the  next  heir  to 
the  earldom  for  his  life.  Johnston,  In  re, 
CockereU  v.  Essex  {EarV),  26  Ch.  D.  638 ;  53  L.  J., 
Ch.  645  ;  62  L.  T.  44 ;  32  W.  R.  634— Chitty,  J, 

"  Full  Salary  "—Legacy  duty.]— A  gift  of  six 
months'  full  salary  is  not  a  gift  free  from  legacy 
duty.  Marcus,  In  re,  Marcus  v.  Marcus,  56 
L.  J.,  Ch.  830 ;  57  L.  T.  399— North,  J. 

Mortgages  on  Eeal  Security.  1  —  Specific 
bequest  of  all  moneys,  stocks,  funds,  shares,  and 
other  securities,  "except  mortgages  on  real  and 
leasehold  security"  ; — Held,  that  mortgages  of 
turnpike  road  tolls  and  mortgages  of  turnpike 
road  tolls  and  toll-houses  were  not  mortgages  on 
real  security,  and  did  not  come  within  the 
exception  in  the  bequest.  Cavendish  v.  Caven- 
dish, 30  Ch.  D.  227  ;  65  L.  J.,  Ch.  144  ;  53  L.  T. 
652— C.  A. 

Business  and  Goodwill.]— The  testator  directed 
his  executors  to  assign  and  transfer  to  H.  "  my 
business  and  the  goodwill  thereof,  with  the 
premises  in  which  the  same  shall  be  carried 
on "  :— Held,  that  the  capital  of  the  testator 
employed  in  the  business  at  his  death  and  the 
stock-in-trade  did  not  pass  to  H.  under  this 
bequest,  and  that  the  debts  due  to  the  business 
formed  part  of  the  capital,  but  the  sacks,  horses, 
and  drays  did  pass  to  H.  Ddany  y.  Delanyr 
15  L.  R.,  Ir.  56— V.-C. 

"  Share,  Sight  and  Interest "  in  Partnership.] 

— B.  bequeathed  all  his  "  share,  right,  and  in- 
terest "  in  the  goodwill  of  a  partnership  business, 
and  in  the  partnership  real  and  personal  estate,, 
to  his  son,  upon  trusts  for  the  benefit  of  the  tes- 
tator's wife  and  children: — Held,  that  a  debt 
due  to  B.  from  the  partnership,  and  on  which  he 
was  receiving  interest,  did  not  pass  by  the  trust 
bequest,  but  formed  part  of  the  testator's 
residuary  estate.  Beard,  In  re,  Simpson  v» 
Beard,  67  L.  J.,  Ch.  887  ;  58  L.  T.  629  ;  36 
W.  R.  519— North,  J. 

"  Fortune  "—Words  of  complete  Disposition— 
Foreign  Real  Property.] — A  testatrix,  of  French 
birth,  made  her  will,  dated  1868,  in  the  French 
language.  The  will  was,  however,  in  English 
form,  and  the  testatrix's  domicil  was  English. 
The  testatrix  gave  legacies  and  annuities  to 
various  persons,  including  her  only  daughter,  and 
a  specific  legacy  of  articles  of  vertu  to  her  only 
son.  The  testatrix  then  declared  that,  after  the 
deduction  of  all  the  above  bequests,  together 
with  the  necessary  sums  to  secure  the  payment 
of  the  annuities,  the  residue  of  her  fortune  (le 


2071 


WILL — Construction. 


2072 


surplus  de  ma  fortune)  should  belong  to  her 
grandson.  The  only  real  estate  which  the  testa- 
trix possessed  was  situate  in  France.  Her 
personal  property  was  not  quite  sufficient  to  pay 
all  her  debts  and  legacies.  The  question  was, 
whether  the  testatrix's  real  estate  in  France, 
devolving  to  her  French  heirs,  could  be  taken  as 
intended  by  the  testatrix  to  be  comprised  in  her 
will,  and  to  be  subjected  by  her  to  the  same 
obligation  of  contributing  to  the  payment  of 
debts  and  legacies,  in  which  event  the  French 
heirs  would  be  put  to  their  election  : — Held,  that 
according  to  the  authorities,  the  universality  of 
a  gift  of  property  contained  in  a  will  was  not 
sufficient  to  demonstrate  or  create  a  ground  of 
inference  that  the  testator  meant  it  to  extend  to 
property  which  was  incapable,  although  his  own, 
of  being  given  by  the  particular  instrument ; 
and  that,  therefore,  the  testatrix  could  not  be 
Baid  to  have  intended  to  affect  her  French  real 
estate,  there  being  nothing  in  the  will  from 
which  the  court  could  infer  any  such  intention  so 
as  to  take  the  case  out  of  the  rule  above  stated. 
Baring  v.  Athburton,  64  L.  T.  463— Chitty,  J. 

*'  Furniture,  Goods,  and  Chattels."]— A  testa- 
tor, after  bequeathing  pecuniary  legacies,  di- 
rected them  to  "  be  paid  from  such  part  of  my 
personal  estate  as  shall  consist  of  money  at  my 
bankers  or  in  the  3  per  cent.  Consols."  And 
after  directing  that  the  whole  of  his  income 
should  be  devoted  to  the  comfort  and  mainte- 
nance of  his  wife,  and  that  she  should  have  the 
use  of  his  residence,  he  desired  "  that  the  furni- 
ture, goods,  and  chattels  be  not  sold  during  my 
wife's  lifetime,  but  at  her  decease  to  be  divided 
among  the  executors"  : — Held,  applying  the 
rule,  ejusdem  generis,  that  the  gift  of  "furni- 
ture, goods  and-  chattels,"  passed  only  such 
furniture,  &c.,  as,  on  the  house  being  let  fur- 
nished, would  go  with  the  occupation  of  the 
house,  and  not  such  articles  as  jewellery,  guns, 
pistols,  tricyles,  and  scientific  instruments, 
Manton  v.  TaboU,  30  Ch.  D.  92  ;  54  L.  J.,  Ch. 
1008  ;  53  L.  T.  289 ;  33  W.  R.  832— V.-C.  B. 

''Other   Household    Effects "  —  Wine.]  —  A 

testator  by  his  will,  made  on  the  21st  Decem- 
ber, 1879,  devised  his  property,  known  as  Heath- 
field,  with  the  offices,  gardens,  fields,  and  appur- 
tenances belonging  thereto,  to  the  use  of  his 
wife,  and  then  the  will  went  on  :  "  I  bequeath  all 
my  furniture,  pictures,  plate,  jewellery,  horses, 
and  carriages,  and  other  household  effects,  to  my 
said  wife  absolutely  "  : — Held,  that  all  the  wine 
at  Heathfield  passed  under  the  words  "other 
household  effects."  Bourne,  In  re,  Bourne  v. 
Brandreth,  68  L.  T.  637— Kay,  J. 

Gash  and  Book  Debt.] — Under  a  residuary 


gift  of  "  all  my  household  furniture,  wines,  car- 
riages, horses  and  other  effects,  except  my 
jewellery " : — Held,  that  750Z.  in  cash  and  a 
book  debt  of  220/.  passed.  Parrott,  In  re, 
Parrott,  63  L.  T.  12— V.-C.  B. 


"  All  Consumable  Stores,  Except  Wines."] — 
By  his  will  the  testator  bequeathed  to  B.  certain 
other  legacies, "  also  all  consumable  stores  in  my 
house,  except  wines,  with  respect  to  which  she 
may  have  as  much  as  she  requires  for  con- 
sumption in  the  house,  and  with  respect  to  the 
rest  to  which  I  have  hereafter  given  specific 
directions  in  dealing  with  my  house."  In  a  sub- 
sequent part  of  the  will  the  testator  gave  to  his 


trustees  his  house  and  all  the  furniture,  plate, 
linen,  china,  wines,  and  other  goods,  chattels,  and 
effects  therein,  at  the  time  of  his  decease,  and 
certain  other  premises  occupied  by  him,  in  trust ; 
to  permit  B.  to  use  and  occupy  such  house,  furni- 
ture, plate,  china,  and  other  things,  and  to  con- 
sume as  much  as  she  cared  to  do  of  his  wines  for 
and  during  her  life,  free  of  all  rent  or  compensa- 
tion of  the  same,  and  free  of  all  obligation  to 
repair  or  insure  the  premises  or  property  (which 
he  expressly  directed  his  trustees  to  do),  and 
free  of  all  rates,  taxes,  tithes,  and  other  oat- 
goings  (all  of  which  he  directed  his  trustees  to 
discharge)  ;  and  after  the  death  of  B.,  the  house 
and  property  were  to  fall  into  and  form  part  of 
his  residuary  estate : — Held,  that  B.  was  only 
entitled  to  the  wines  which  she  might  require 
for  consumption  ,*  that  the  rule  with  regard  to 
gifts  of  all  consumable  articles  could  not  be  ex- 
tended to  a  gift  such  as  this  ;  and  that  B.  was 
not  eu tit  led  to  all  the  wines  absolutely,  though 
it  might  be  that  she  and  her  friends  would  con- 
sume the  whole  during  her  occupation  of  the 
house.  Colyer,  In  re,  Millikin  v.  Sndline,  55 
L.  T.  344— Kay,  J. 

11  Contents  of  House."]— A  testatrix  be- 
queathed certain  legacies  to  A.  C,  sixth  Earl 
of  E.,  and  as  to  all  her  household  furniture, 
paintings,  books,  china,  and  the  whole  contents 
of  her  house,  she  bequeathed  the  same  to  her 
.trustees  and  executors  upon  trust  that  they 
should  in  the  first  place  select  and  set  aside  a  col- 
lection of  the  best  paintings,  statuary,  and  china 
for  the  Earl  of  E.,  and  his  successors,  to  be  held 
and  settled  as  heirlooms,  and  to  go  with  the 
title,"  and  she  authorised  them  to  give  to  the 
said  Earl  or  his  successors,  any  articles  of  fur- 
niture which  they  should  think  fit,  and  as  to  all 
the  rest  and  residue  of  the  contents  of  her  house 
upon  trust  for  her  trustees  to  select  presents  for 
her  friends,  and  directed  them  to  present  anj 
portion  of  the  residue  of  the  contents  of  her 
house  to  her  cousins  if  they  should  think  fit,  or 
to  sell  the  same,  and  the  moneys  so  receired 
to  form  part  of  her  residuary  personal  estate. 
The  testatrix  died  possessed  of  considerable  per- 
sonal estate,  which  comprised  amongst  other 
things,  a  number  of  articles  of  jewellery  which 
were  at  her  death  in  a  box  at  her  bankers,  which 
jewellery  had  been  bequeathed  to  her.  It  was 
proved  that  it  had  been  the  practice  of  the  testa- 
trix, and  also  of  the  former  owner,  to  send  sock 
box  for  safe  custody  to  the  bankers,  when  they 
respectively  were  away  from  London: — Held, 
that  the  box  of  jewellery  passed  to  the  trustees 
as  part  of  the  contents  of  the  house,  that  being 
the  locality  to  which  the  property  ought  to 
be  ascribed,  although  jewellery  is  merely  for 
personal  use,  and  is  not  appropriate  to  a  house. 
Johnston,  In  re,  Cockerell  v.  Euex  {Earl).  26  Ch. 
D.  538  ;  53  L.  J.,  Ch.  646  ;  52  L.  T.44  ;  32 W.SL 
634— Chitty,  J. 

Direction  that  Share  "  shall  fall  into  Ssd- 
due."] — A  testator  bequeathed  the  residue  of  his 
personal  estate  to  his  wife  for  life,  and  after  her 
death  to  his  sister  and  three  brothers  in  equal 
shares;  but  directed  that  in  the  event  of  his 
sister  dying  unmarried  in  his  wife's  lifetime 
(which  happened),  "  her  one-fourth  should  fall 
into  the  residue  " :— Held,  that  there  was  no  in- 
testacy as  to  the  sister's  one-fourth,  but  that  the 
whole  residue  was,  on  the  widow's  death,  di- 


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WILL — Construction . 


2074 


risible  in  thirds  between  the  three  other  lega- 
tees. Bumble  v.  Shore  (7  Hare,  247  ;  1  H.  &  M. 
560,  n.),  Lightfoot  v.  BurttaXl  (1  H.  &  M.  546), 
and  Crawthaw  v.  Crawshaw  (14  Ch.  D.  817) 
considered.  Rhoades,  In  re%  Lane  v.  Rhoadet, 
29  Ch.  D.  142  ;  54  L.  J.,  Ch.  573  ;  53  L.  T.  15  ; 
33  W.  B.  608— V.-C.  B. 


b.  Conditions. 
i.  Bepugnancy. 

Devise  in  Fee— Beitraint  on  Alienation.] — A 
condition  in  absolute  restraint  of  alienation 
annexed  to  a  devise  in  fee,  even  though  its 
operation  is  limited  to  a  particular  time,  e.g.,  to 
the  life  of  another  living  person,  is  void  in  law 
as  being  repugnant  to  the  nature  of  an  estate  in 
fee.  Maclcay.  In  re  (20  L.  R.,  Bq.  186),  com- 
mented on.  Large'*  cane  (2  Leon.  82  ;  3  Leon. 
182)  explained.  Rotlier,  In  re,  Rosher  v.  Rosher. 
26  Ch.  D.  801 ;  53  L.  J.,  Ch.  722  ;  51  L.  T.  785  ; 
32  W.  B.  820— Pearson,  J. 

A  testator  devised  an  estate  to  his  son  in  fee, 
provided  always  that  if  the  son,  his  heirs  or 
devisees,  or  any  person  claiming  through  or 
under  him  or  them,  should  desire  to  sell  the 
estate,  or  any  part  or  parts  thereof,  in  the  life- 
time of  the  testator's  wife,  she  should  have  the 
option  to  purchase  the  same  at  the  price  of 
3,000/.  for  the  whole,  and  at  a  proportionate 
price  for  any  part  or  parts  thereof,  and  the  same 
should  accordingly  be  first  offered  to  her  at  such 
price  or  proportionate  price  or  prices.  The  real 
selling  value  of  the  estate  was,  at  the  date  of  the 
will  and  at  the  time  of  the  testator's  death, 
15,000/.  : — Held,  that  the  proviso  amounted  to 
an  absolute  restraint  on  alienation  during  the 
life  of  the  testator's  widow ;  that  it  was  void  in 
law  ;  and  that  the  son  was  entitled  to  sell  the 
estate  as  he  pleased,  without  first  offering  it  to 
the  widow  at  the  price  named  in  the  will.    lb. 

A.  was  entitled  under  the  will  of  his  father, 
to  an  income  amounting  to  109/.  4*.  6d.,  arising 
from  houses  in  the  city  of  Cork  and  certain  shares 
rested  in  trustees,  being  a  third  share  of  the 
father's  estate,  upon  trust  "  for  the  sole  use  and 
benefit  "  of  the  respondent,  and  "  to  be  assigned, 
transferred,  and  handed  over  to  him  as  soon  as 
conveniently  may  be  "  after  the  decease  of  the 
father.  The  will  directed  that  if  any  of  the 
three  sons  of  the  testator  should  die  unmarried 
and  without  issue  his  share  should  £0  to  the 
survivors,  and  it  was  further  provided  that 
neither  of  the  sons  of  the  testator  should  have 
power  to  mortgage,  sell,  alien,  charge  or  incumber 
any  part  of  the  property  assigned  to  them,  and 
that  in  the  event  of  either  of  them  doing  so  the 
trustees  should  stand  possessed  of  his  share : — 
Held,  that  A.  took  an  estate  in  fee  simple  under 
the  will,  and  that  the  provision  for  forfeiture 
in  case  of  alienation  was  therefore  void.  Corbett 
v.  Corbett,  14  P.  D.  7  ;  68  L.  J.,  P.  17  ;  60  L.  T. 
74  ;  37  W.  B.  114— C.  A. 

A  testatrix  gave  certain  real  and  personal 
estate  "  upon  trust  for  my  third  son,  J. ,  his  heirs 
and  assigns  ;  but  if  my  said  son  should  do, 
execute,  commit,  or  suffer  any  act,  deed,  or  thing 
whatsoever  whereby  or  by  reason  or  in  conse- 
quence whereof,  or  if  by  operation  of  law,  he 
-would  be  deprived  of  the  personal  beneficial 
enjoyment  of  the  said  premises  in  his  lifetime, 
then  and  in  such  case  the  trust  hereinbefore 


contained  for  the  benefit  of  my  said  son  shall 
absolutely  cease  and  determine,  and  the  estates 
and  premises  hereinbefore  limited  in  trust  for 
him"  should  go  and  be  held  in  trust  for  his 
wife,  or,  if  no  wife  then  living,  for  his  children 
equally.  J.  survived  his  mother,  and  was  still 
living,  a  bachelor: — Held,  that  he  took  an 
absolute  interest  under  the  gift,  and  that  the 
attempted  executory  gift  over  was  void  for 
repugnancy.  Conditional  gifts  by  way  of  re- 
straint on  alienation,  discussed.  Dug  dale,  In  re, 
Dugdale  v.  Dug  dale,  38  Ch.  D.  176  ;  57  L.  J., 
Ch.  634  ;  58  L.  T.  581 ;  36  W.  B.  462— Kay,  J. 

Executory  Devise— Death  of  Devisee  without 
leaving  Issue.] — A  testator  devised  real  estate 
to  his  son  and  his  heirs ;  and  then  declared  that 
in  case  his  said  son  should  die  without  leaving 
lawful  issue,  then  and  in  such  case  the  estate 
should  go  to  his  son's  next  heir-at-law,  to  whom 
he  gave  and  devised  the  same  accordingly : — 
Held,  that  the  contingency  of  death  without 
leaving  issue  was  not  confined  to  death  in  the 
lifetime  of  the  testator,  but  referred  to  death  at 
any  time  ;  and  that  the  gift  over  was  repugnant 
and  void  ;  and  that  the  devisee  took  an  absolute 
estate  in  fee  simple.  Parry  and  Baggt,  In  re, 
31  Ch.  D.  180 ;  55  L.  J.,  Ch.  237  ;  54  L.  T.  229 ; 
34  W.  B.  353— C.  A. 

Fee  Simple  Estate  —  Hame  Clause.] — A  tes- 
tatrix, who  died  in  1832,  settled  her  freehold 
estate  upon  her  grandchildren,  a  share  becoming 
vested  in  one  of  them,  Lucy,  in  fee  simple  in 
possession ;  and  the  will  contained  a  proviso 
that  any  person  becoming  entitled  in  possession 
to  the  estate  should  within  one  year  thereafter, 
take  and  use  the  name  of  "  Jones,"  and  that  in 
case  any  such  person  should  refuse  or  neglect  to 
use  the  name  of  Jones  within  one  year,  then  the 
estate  limited  to  him  or  her  should  be  void,  and 
should  first  go  to  her  niece,  Catherine  Jones, 
since  deceased,  for  her  life,  and  after  her  decease 
to  the  person  or  persons  next  in  remainder  under 
the  trusts  of  the  will,  in  the  same  manner  as  if 
the  person  so  refusing  were  dead.  Lucy  was 
twice  married,  and  neither  she  nor  either  of  her 
husbands  ever  took  the  name  of  Jones  : — Held, 
that  the  gift  being  in  fee  simple,  and  there  being 
necessarily  no  person  entitled  in  remainder,  the 
name  clause  was  void,  and  that  there  had  conse- 
quently been  no  forfeiture  by  Lucy.  Brooke, 
In  re,  Mutgrave  v.  Brooke,  26  Ch.  D.  792  ; 
54  L.  J.,  Ch.  102  ;  33  W.  B.  211— Pearson,  J. 


it    Forfeiture  of  Estate  and  Interest. 

a.  Non-Regidvnve. 

What  Amounts  to  Besidenee.]— Testator 
devised  a  messuage  and  hereditaments  in  the 
country  to  the  use  of  his  son  G.  for  life, 
"  provided  as  a  sine  qua  non  "  that  he  "  within 
six  calendar  months  after  my  decease  shall  enter 
upon  and  take  actual  possession  of  "  the  messuage 
and  hereditaments  '•  as  and  for  his  residence  and 
place  of  abode  ;  "  and  "  shall  as  such  tenant  for 
life  thereafter  during  his  life  continue  to  reside 
in  or  upon  the  same  capital  messuage  for  at  least 
six  calendar  months  (but  not  necessarily  con- 
secutively) in  every  year."  After  G.'s  death, 
11  or  his  failing  to  take  such  possession  as  afore- 
said and  to  reside  in  "  the  house,  testator  devised 


■2076 


WILL — Construction. 


2076 


the  same  to  G.'s  first  and  other  sons  in  tail  male. 
G.  entered  and  took  possession  within  six  months 
after  the  testator's  decease ;  bnt  as  to  residence, 
during  the  year  following  the  expiration  of  the 
six  months,  he  was  in  the  house  for  eighteen 
days  only ;  and  from  the  1st  of  January  to  the 
28th  of  December  in  the  year  following  the  date 
•of  such  expiration,  for  no  more  than  twenty-four 
-days.  He  had,  however,  placed  the  house  in 
charge  of  a  staff  of  servants,  he  had  paid  the 
rates,  he  had  kept  horses  and  poultry  in  the 
stables  and  on  the  grounds,  and  his  son,  who 
was  at  a  college  near,  had  stayed  at  the  house  on 
an  average  on  eveiy  alternate  Saturday  till 
Monday  : — Held,  that  no  forfeiture  of  G.  s  life 
•estate  had  taken  place.  Moir,  In  re,  Warner  v. 
Moir,  25  Ch.  D.  605  ;  53  L.  J.,  Ch.  474  ;  50  L.  T. 
10  ;  32  W.  B.  377— V.-C.  B. 


Effect  of  Settled  Land  Aot,  1882,  s.  51.]— A 

condition  in  a  will  or  settlement  requiring  a 
tenant  for  life  to  reside  on  settled  land  is  not 
Absolutely  avoided  by  s.  51  of  the  Settled  Land 
Act,  1882,  but  only  when  it  interferes  with  the 
actual  exercise  by  the  tenant  for  life  of  his 
powers  under  the  act.  Where,  therefore,  such  a 
-condition  had  been  broken  by  a  tenant  for  life 
before  any  question  of  exercising  the  powers 
given  by  the  act  had  arisen : — Held,  that  the 
interest  of  the  tenant  for  life  was  forfeited. 
Pagefs  Settled  Estates,  In  re  (30  Ch.  D.  161) 
•explained.  Hay  net,  In  re,  Kemp  v.  Hay  net,  37 
Ch.  D.  306  ;  57  L.  J.,  Ch.  519  ;  58  L.  T.  14  ;  36 
W.  B.  321— North,  J. 

A  principal  mansion  house  was  devised  to  A. 
for  life  and  other  limitations  with  a  condition 
of  forfeiture  on  non-residence  in  selling  of,  or 
letting  the  same  : — Held,  that  the  condition  of 
forfeiture  was  void  for  the  purposes  of  the 
Settled  Land  Act,  1882,  and  the  court  autho- 
rised a  temporary  letting  to  be  made.  Thomp- 
son's  Will,  In  re,  21  L.  B.,  Ir.  109— M.  B. 

P.  devised  an  estate  to  the  use  of  his  son  F.  H. 
so  long  as  he  should  continue  to  reside  in  the 
testator's  present  dwelling-house,  or  upon  some 
part  of  the  said  estate  for  a  period  of  not  less 
than  three  calendar  months  in  each  year  after  he 
should  become  entitled  to  the  actual  possession 
thereof.  And  after  the  death  of  the  said  F.  H., 
provided  he  should  have  complied  with  and  ful- 
filled the  above  condition,  to  such  uses  for  the 
benefit  of  all  or  any  of  his  children  as  the  said 
F.  H.  should  by  will  appoint,  and  in  default  of 
such  appointment,  or  if  the  said  F.  H.  should 
fail  in  compliance  with  the  above  condition, 
then  from  the  determination  of  F.  H.'s  estate  to 
the  use  of  trustees  upon  trust  to  sell  and  hold 
the  proceeds  upon  trust  for  the  children  of  F.  H. 
as  therein  mentioned,  and  in  default  of  children 
for  other  persons.  F.  H.  took  out  a  summons 
for  the  opinion  of  the  court  whether  under  this 
devise  he  had  the  powers  of  a  tenant  for  life 
under  the  Settled  Land  Act ;  whether  the  con- 
dition of  residence  was  void  under  s.  51  of  the 
Settled  Land  Act,  1882 ;  and  for  the  sanction  of 
the  court  to  selling  the  mansion-house : — Held, 
that  the  condition  of  residence  was  one  tending 
to  induce  the  tenant  for  life  not  to  exercise  the 
powers  under  the  act,  and  was  therefore  void 
under  s.  51,  and  that  the  sale  of  the  mansion- 
bouse  ought  to  be  sanctioned.  Paget 's  Settled 
Estate,  In  re,  30  Ch.  D.  161  ;  55  L.  J.,  Ch.  42  ; 
53  L.  T.  90 ;  33  W.  B.  898— Pearson,  J. 


0.  Name  and  Arms  Clause. 


Validity— Disentailing  Deed,  Effect  ot]-A 
testatrix  devised  her  real  estate  in  strict  settle- 
ment, the  will  containing  an  ordinary  name  and 
arms  clause.    And  she  bequeathed  personal  estate 
to  trustees,  in  trust  for  the  person  or  persons  who 
for  the  time  being  should  by  virtue  of  the  will 
be  beneficially  entitled  to  the  real  estate,  for 
such  or  the  like  estates  or  interests,  to  the  intent 
that  the  personal  estate  should  go  along  with 
the  real  estate,  so  far  as  the  nature  of  the  per- 
sonal estate  and  the  rules  of  law  and  equity 
would  permit.    And  the  testatrix  directed  that 
the  name  and  arms  clause  relating  to  the  real 
estate  should  not  affect  the  personal  estate,  hat 
in  lieu  thereof  she  directed  (inter  alia)  that  if 
any  person,  being  a  male,  who  should  be  entitled 
under  any  of  the  limitations  of  the  will  to  any 
absolute   beneficial   interest  in   possession  by 
purchase  in  the  personal  estate  should  refuse  or 
neglect  to  assume,  use,  and  bear  the  name  and 
arms  of  C.  within  the  period  therein  mentioned, 
provided   such   period    should    expire  within 
twenty-one  years  next  after  the  death  of  the 
survivor  of   three   persons   named,  or  should 
after  having  assumed  the  name  and  arms,  dis- 
continue to  use  and  bear  the  same,  or  either  of 
them,  for  six  months  at  any  time  within  the 
period  of  twenty-one  years,  then  and  in  any  of 
such  cases,  and  from  time  to  time,  the  estate  and 
interest  of  the  person  so  refusing,  or  neglecting, 
or  discontinuing,  in  the  personal  estate  should 
absolutely  cease,  and  the  personal  estate  should 
from  time  to  time  go  over  to  the  person  or 
persons  who  would  have  been  entitled  to  the 
real  estate  under  the  limitations  of  the  will  in 
case  the  party  whose  estate  should  so  cease. 
being  tenant  for  life  of  the  real  estate,  were 
dead,  or,  being  tenant  in  tail  of  the  real  estate, 
were  dead  without  issue,  for  such  or  the  like 
estates  or  interests  as  such  person  or  persons 
would  have  been  entitled  to  in  the  real  estate. 
Within  the  proper  time  after  the  death  of  the 
testatrix  the  first  tenant  for  life  under  the  will 
assumed  the  name  and  arms  of  C,  and  continued 
to  use  them  until  his  death.    The  plaintiff  was 
his  first  son  and  the  first  tenant  in  tail  of  the 
real  estate  under  the  will.  After  he  had  attained 
twenty-one  he  executed  a  disentailing  deed  of 
the  real  estate  and  limited  it  to  himself  in  foe 
simple.    He  then   claimed  to  be  indefensibly 
entitled  in  possession  to  the  personal  estate  :— 
Held,  that  the  forfeiture  clause  relating  to  the 
personal  estate  was  valid,  and  that  the  effect  of 
it  was  to  make  the  interest  of  the  tenant  in  tafl, 
in  case  it  should  be  forfeited,  go  over  to  the 
person  who  would  have  been  entitled  to  the  real 
estate  under  the  limitations  of  the  will  in  case 
the  tenant  in  tail  had  been  dead  without  issue, 
and  no  disentailing  deed  had  been  executed  :— 
Held,  therefore,  that  the  plaintiff  was  not  inde- 
f  easibly  entitled  to  the  personal  estate ;  but  that 
his  interest  was  liable  to  forfeiture  in  case  within 
the  period  of  twenty-one  years  he  should  discon- 
tinue to  use  the  name  and  arms  of  C.    Csm- 
wallis,  In  re,  ComwaUis  v.  Wyktkam-Msft*** 
32  Ch.  D.  388  ;  55  L.  J.,  Ch.  716  ;  54  L.  T.844 
— Pearson,  J. 

Compliance  with— Licence  of  College  of  Arm] 

— A  name  and  arms  clause  contained  a  proviso 
that  in  case  the  devisee  should  "  refuse  or  neglect 
within  one  year  to  take,  use,  and  bear  the  sot- 


2077 


WILL — Construction. 


2078 


name  "  of  A~,  or  should  at  any  time  afterwards 
"  discontinue  to  use  and  bear  such  surname  or 
arms,"  then,  and  in  every  such  case  immediately 
after  the  expiration  of  a  year,  or  immediately 
after  such  discontinuance,  the  devise  should  de- 
termine and  become  void.  The  devisee  assumed 
the  surname,  and  also  used  his  best  endeavours 
to  comply  with  the  direction  as  to  the  arms,  but 
bailed  to  obtain  a  grant  from  the  Herald's 
Oollegeof  the  right  to  use  the  identical  arms 
used  by  A. : — Held,  that  the  estate  of  the  devisee 
bad  not  been  divested  by  the  failure  to  obtain  a 
£T&nt  of  the  identical  arms  used  by  A.  Semble, 
that  a  name  and  arms  clause  requires  a  taking 
of  arms  by  a  proper  grant  from  a  proper  au- 
thority (namely,  the  College  of  Arms),  and  is 
not  satisfied  by  a  mere  voluntary  assumption  of 
a  coat  of  arms.  Austen  v.  Collins,  54  L.  T.  90S 
-^Chitty,  J. 

y.  Bankruptcy,  etc. 

Future  Event  1— The  testator  directed  that  if 
the  annuitant  should  become  bankrupt  or  in- 
solvent he  should  forfeit  the  annuity  : — Semble, 
euch  a  direction  applies  only  to  future  events, 
and  no  forfeiture  would  be  incurred  by  an  in- 
<8olvency  incurred  during  the  testator's  lifetime. 
Jhraper's  Trusts.  In  re,  57  L.  J.,  Ch.  942  ;  58 
X.  T.  942 ;  36  W.  R.  783— Kekewich,  J. 

Annulment.] — A  testator  gave  his  residuary 
Teal  and  personal  estate  to  trustees  upon  trust, 
to  pay  one-third  of  the  rents  and  proceeds  to  his 
son  until  he  should  die  or  become  bankrupt,  or 
assign,  charge,  or  incumber,  or  attempt  to  assign, 
charge,  or  incumber  the  same  or  any  part  thereof, 
or  do  something  whereby  the  same  or  some  part 
thereof  would  by  operation  of  law  or  otherwise 
if  belonging  absolutely  to  him  become  vested  in, 
or  payable  to,  some  other  person  or  persons,  with 
a  gift  over  on  the  failure  or  determination  of  the 
trust.  Shortly  before  the  death  of  the  testator 
insolvency  proceedings  were  instituted  against 
the  son  in  Melbourne  where  he  was  living,  and 
trustees  of  his  estate  were  appointed,  who  gave 
notice  to  the  trustees  of  the  testator's  will  to 
pay  over  to  them  any  sums  in  their  hands  to 
-which  the  bankrupt  was  entitled.  The  insol- 
vency proceedings  were  very  shortly  afterwards 
annulled,  and  it  appeared  that  the  insolvency 
trustees  had  not  received  anything  from  the 
trustees  of  the  will : — Held,  that,  notwithstand- 
ing the  annulment  of  the  insolvency  proceed- 
ings, the  clause  of  forfeiture  had  taken  effect. 
Broughton,  In  re,  Peat  y.  Brmgldon,  57  L.  T.  8 
— Chitty,  J. 

Effect  of  Words  "  do  or  suffer  "— -Registration 
•of  Judgment.] — Under  a  will,  the   rents  and 

Srofits  of  certain  lands  were  made  payable  to 
L  for  life,  or  until  he  should  become  bankrupt, 
or  assign,  convey,  charge,  or  incumber  the  same, 
"  or  do  or  suffer  something,  whereby  the  same, 
or  some  part  thereof  would,  by  operation  of  law 
or  otherwise,  if  belonging  absolutely  to  him, 
become  vested  in  or  become  payable  to  some 
other  person  or  persons."  A  judgment  creditor 
of  M.  registered  his  judgment  as  a  mortgage 
against  the  lands : — Held,  that,  under  the  words 
"  do  or  suffer  something,"  a  forfeiture  had 
occurred  of  M.'s  life  interest  in  the  lands. 
Moore's  Estate,  In  re,  17  L.  B.,  Ir.  549 — 
Flanagan,  J. 


Felony—"  Operation  of  Law"— Act  to  abolish 
Forfeitures.!— A  testatrix,  by  her  will,  dated  in 
July,  1869,  devised  and  bequeathed  all  her  real 
and  personal  estate  to  T.  K.  in  trust  for  her 
sister  M.  C.  for  life,  and  after  her  decease  upon 
trust  to  pay  to  or  permit  H.  D.  G.  to  receive  the 
interest  for  his  life,  but  if  he  should  become 
bankrupt,  or  publicly  insolvent,  or  should  com- 
pound with  his  creditors,  or  should  assign  or 
incumber  his  interest  under  the  trust,  or  any 
part  thereof,  or  should  otherwise  by  his  own 
act,  or  by  operation  of  law,  be  deprived  of  the 
absolute  personal  enjoyment  of  the  same  interest, 
or  any  part  thereof,  then,  and  in  either  of  such 
cases,  the  trust  in  favour  of  H.  0.  D.  should  be 
void,  and  T.  K.  should  thenceforth  apply  the 
interest  for  the  maintenance,  education  and 
support  of  the  children  of  H.  0.  D.  The  tes- 
tatrix died  in  1871,  and  M.  C.  died  in  1881.  In 
July,  1878,  H.  G.  D.  was  convicted  of  felony  and 
sentenced  to  ten  years'  penal  servitude.  Before 
the  expiration  of  his  sentence  he  obtained  a 
ticket  of  leave  and  commenced  an  action  for  the 
administration  of  the  estate  of  the  testatrix,  and 
claimed  the  arrears  of  interest : — Held,  that  he 
had  not  been  deprived  of  the  actual  enjoyment 
of  the  life  interest  by  any  operation  of  law,  and 
that  he  was  entitled  to  all  arrears  of  interest. 
Dash,  In  re,  Barley  v.  King,  57  L.  T.  219— 
Chitty,  J. 

iii.    Other  Conditions, 

Illegal  Condition— Husband  and  Wife— Gift 
while  living  apart.]— A  testator  directed  his 
trustee  to  pay  to  his  sister  M.  "during  such 
time  as  she  may  live  apart  from  her  husband, 
before  my  son  attains  the  age  of  twenty-one 
years,  the  sum  of  21. 10s.  per  week  for  her  main- 
tenance whilst  so  living  apart  from  her  hus- 
band." M.  and  her  husband  were  married  some 
years  before  the  date  of  the  will,  and  never  lived 
apart  till  some  time  after  the  death  of  the  tes- 
tator. The  testator's  son  was  living  and  an 
infant : — Held,  that  the  bequest  to  M.  was  not 
to  be  construed  as  a  gift  to  her  during  the  joint 
lives  of  herself  and  her  husband  until  the  son 
attained  twenty-one,  upon  a  condition,  which 
might  have  been  rejected  as  against  the  policy 
of  the  law,  that  she  and  her  husband  should  not 
live  together,  but  as  a  limited  gift  of  weekly 
payments  to  be  made  during  a  period  the  com- 
mencement and  duration  of  which  were  fixed  in 
a  way  which  the  law  does  not  allow,  and  that 
the  gift  was  void.  Brown  v.  Peck  (1  Eden.  140) 
and  Wren  v.  Bradley  (2  De  G.  &  Sm.  49)  con- 
sidered. The  distinction  between  gifts  on  con- 
dition and  gifts  by  way  of  limitation,  discussed. 
Moore,  In  re,  Trafford  v.  Maeonochie,  39  Ch. 
D.  116 ;  57  L.  J.,  Ch.  936 ;  59  L.  T.  681;  37  W.  B. 
83— C.  A.    Affirming  52  J.  P.  596— Kay,  J. 

"For  Services  and  collecting  of  Rents"— 
Collection  of  Bents  by  Agent  J— A  testator  gave 
to  his  trustees  "  for  their  services  and  collecting 
of  rents,  &c,"  an  annuity  of  25/.  each.  The 
property  principally  consisted  of  eighty  nouses, 
some  let  at  weekly  tenancies,  and  the  trustees 
employed  a  collector  of  the  rents,  and  the  chief 
clerk  allowed  the  trustees  in  taking  their  accounts 
a  sum  of  80/.  paid  to  the  collector  : — Held,  that 
the  trustees  were  not  entitled  to  these  annuities 
in  addition  to  the  sum  allowed  for  the  collection 
of  rents,  and  that  as  that  allowance  exceeded 


2079 


WILL — Construction. 


208O 


the  aggregate  of  the  two  annuities,  no  appor- 
tionment of  the  annuities  so  as  to  cover  the 
trustees'  services  other  than  the  collection  of 
rents,  if  otherwise  possible,  could  be  made. 
Muffett,  In  re.  Jones  v.  Mason.  56  L.  J.,  Ch.  600 ; 
56  L.  T.  685  ;  51  J.  P.  660— C.  A. 

Persons  who  should  Establish  Bight  as  Kext 
of  Kin  within  One  Tear.] — A  testator  bequeathed 
his  residuary  personal  estate  to  such  persons  who 
should  within  one  year  from  his  death  establish 
their  right  or  title  thereto  as  his  next  of  kin, 
with  a  gift  over  in  default.  An  order  for 
limited  administration,  including  an  inquiry  as 
to  next  of  kin,  was  made  on  summons  shortly 
after  the  testator's  death.  The  persons  who  were 
next  of  kin  did  not  bring  in  a  claim  within  the 
year: — Held,  that  the  gift  over  took  effect. 
Tollner  v.  Marriott  (4  Sim.  19)  distinguished. 
Hartley,  In  re,  Stedman  v.  Dunster,  34  Ch.  D. 
742 ;  66  L.  J.,  Ch.  564  ;  56  L.  T.  565  ;  35  W.  B. 
624— North,  J. 

Discretion  of  Executors  as  to  Conduct  of 
Legatee — Declaration  of  Dissatisfaction.] — A 
testator  bequeathed  to  his  6on  A.  a  sum  of  2,000/., 
if  he  should  conduct  himself  to  the  satisfaction 
of  the  testator's  executors.  He  also  devised  and 
bequeathed  the  residue  of  his  property  to  his 
executors  upon  trust  for  the  use  and  benefit  of 
all  his  children,  including  his  son  A.,  in  equal 
shares,  and  declared  that  if  his  son  A.  should  not 
conduct  himself  to  the  satisfaction  of  his  execu- 
tors or  the  survivor  of  them,  then  that  he  should 
not  be  entitled  to  receive  any  portion  of  the  re- 
siduary estate  ;  and  in  that  case  a  declaration  in 
writing,  signed  by  the  said  executors  or  the  sur- 
vivor of  them,  of  their,  her,  or  his  dissatisfaction 
with  him,  should  be  conclusive  evidence  that  he 
was  not  to  receive  any  portion  thereof : — Held, 
that  a  declaration  of  dissatisfaction  signed  by 
two  of  the  executors  who  alone  proved  the  will, 
leave  having  been  reserved  for  the  remaining 
three,  was  sufficient  to  disentitle  A.  to  the  legacy 
and  to  a  share  of  the  residue.  Delany  v.  Delany, 
15  L.  B.,  Ir.  55— V.-C. 

Provision  as  to  Disputes  on  Construction  of 
Will.] — A  testator  cannot,  by  constituting  pri- 
vate individuals  a  forum  domesticum  to  decide 
whatever  questions  may  arise  upon  the  construc- 
tion of  his  will,  oust  the  jurisdiction  of  the  court 
to  determine  such  questions.  A  will,  after  several 
dispositions  of  the  testator's  property,  contained 
the  following  declaration  :  "  I  have  now  stated 
my  will,  to  the  best  of  my  ability,  clearly  as  to 
the  disposal  of  my  different  properties ;  yet,  in 
order  to  prevent  disputes,  I  shall  add  this  clause : 
And  it  is  my  will  that  all  differences  of  opinion 
as  to  my  intention  shall  be  left  to  the  decision  of 
the  executors,  whose  decision  shall  be  final,  if 
they  agree ;  and  if  they  do  not,  they  shall 
appoint  an  umpire,  from  whose  judgment  there 
shall  be  no  appeal.  Anyone  resorting  to  law,  1 
here  cancel  and  annul  every  benefit  they  would 
otherwise  have  derived  from  this  my  will,  and 
whatever  they  have  forfeited  shall  be  divided 
by  the  executors  among  those  who  had  acceded 
to  their  decision  "  : — Held,  that  the  jurisdiction 
of  the  court  to  decide  any  questions  arising  upon 
the  will  was  not  ousted  by  the  clause  attempting 
to  confer  upon  the  executors  exclusive  power  to 
determine  them.  Massy  v.  Rogers,  11  L.  B.,  Ir. 
409— V.-C. 


c.  Validity. 


Gift  at  Twenty-five— Contingent  Gift— Gift 
over.]— A  testatrix  by  her  will,  dated  in  1828, 
gave  all  her  property  to  trustees  upon  trust,  as 
to  the  interest  of  a  sum  of  5,0002L,  for  her  sister 
for  life ;  and  after  the  death  of  such  sister  the 
interest  to  be  paid  to  the  testatrix's  daughter 
(she  having  first  attained  twenty-five) ;  if  the 
daughter  married  with  the  consent  of  the  exe- 
cutors, and  died  "  leaving  children,  the  interest 
to  be  appropriated  for  the  maintenance  and 
education  of  such  children,'*  of  whom  the  testa- 
trix constituted  the  executors  guardians  as  to 
the  due  application  of  the  same  according  to 
their  discretion, "  and  the  principal  to  he  divided 
amongst  them  as  they  shall  severally  attain  the 
age  of  twenty-five  years ; "  after  the  death  of  the 
sister,  and  in  the  event  of  the  daughter  manr- 
ing  without  consent,  or  marrying  with  consent 
"  and  dying  without  leaving  issue,"  then  over. 
The  daughter  survived  the  testatrix,  attained 
twenty-five,  and  in  1842  married  with  the  neces- 
sary consent.  The  sister  died  in  1854,  and  the 
daughter  in  1866,  having  had  two  children,  who 
survived  her : — Held,  that  the  gift  was  not  void 
for  remoteness,  but  that  the  fund  vested  in  the 
children  of  the  daughter  living  at  her  death. 
Sevan's  Trusts,  In  re,  34  Ch.  D.  716  ;  56  L.  J., 
Ch.  652  ;  56  L.  T.  277  ;  35  W.  R.  400— Kay,  J. 

Gift  to  Children  of  any  Son  of  Tenant  for  lift 
— Tenant  for  Life  past  Child-bearing — Admisn- 
bility  of  Evidence.] — A  testator  by  his  will, 
dated  September,  1866,  gave  all  his  estate  to 
trustees  upon  trust  to  pay  an  annuity  to  his 
daughter  (the  plaintiff)  for  life,  and  on  her 
decease  he  declared  that  they  should  stand  pos- 
sessed of  the  residue  of  the  trust  funds  in  trust 
for  such  child  or  children  of  the  plaintiff  as  had 
attained  or  should  live  to  attain  the  age  of 
twenty-one   years,   or    (being   a  daughter  or 
daughters)  should  have  attained  or  should  lire 
to  attain  that  age,  or  have  married  or  manrr 
and  also  for  such  child  or  children  of  any  son 
of  the  plaintiff  who  should  die  under  the  age 
of  twenty-one,  as  should  live  to  attain  the  age 
of  twenty-one  years,  or  (being  a  daughter  or 
daughters)  should  live  to  attain  that  age  or 
marry,  and,  if  more  than  one,  in  equal  shares 
and  proportions  as  between  brothers  and  sisters. 
The  testator  died  in  January,  1875,  and  at  his 
death  the  plaintiff,  who  was  then  over  sixty 
years  of  age,  had  one  son  and  five  daughters 
living : — Held,  that  the  trust  in  favour  of  the 
grandchildren  of  the  plaintiff  was  void  for  re- 
moteness, and  that  evidence  was  not  admissible 
to  show  that  at  the  testator's  death  the  plaintiff 
was  past  the  age  of  child-bearing.  Jee  v.  Auikf 
(1  Cox,  324)  and  Saver's  Trusts,  In  re  (6  L  R- 
Eq.  319)  followed.  Cooper  v.  Laroehe  (17  CLD. 
368)  disregarded.    Dawson,  In  re,  Johnston  v. 
Hill,  39  Ch.  D.  155  ;  57  L.  J.,  Ch.  1061 ;  59  L  T. 
725 ;  37  W.  B.  51— Chitty,  J. 

Divisible  Gift.]— The  will  of  a  testatrix  con- 
tained an  ultimate  limitation  of  her  real  estate 
to  her  right  heirs  in  case  both  her  daughters  (for 
whom  and  their  husbands  and  issue  provision 
had  been  made  by  the  will),  should  die  withoat 
leaving  any  child  or  the  issue  of  any  child  living 
at  the  decease  of  the  survivor  of  them,  or  of  the 


2081 


WILL — Construction. 


2082 


survivor  of  their  respective  then  present  or  any 
future  husbands.  The  personal  estate  was  be- 
queathed by  reference  on  the  trusts  of  the  real 
estate.  Neither  of  the  daughters  married  again. 
Each  died  leaving  her  husband  surviving  her, 
but  no  issue : — Held,  by  the  court  below  that 
the  gift  over  was  divisible  into  two  distinct 
-gifts,  viz.  (1)  in  case  both  the  daughters  should 
die  without  leaving  issue  living  at  their  respec- 
tive deaths  ;  (2)  in  case  the  (laughters  or  either 
of  them  should  die  leaving  issue,  and  there 
should  be  no  such  issue  living  at  the  death  of 
the  survivor  of  the  husbands  of  the  daughters ; 
and  that,  the  first  event  having  happened,  the 
gift  over  was  good,  though  it  would  have  been 
void  for  remoteness  if  the  daughters  had  left 
issue ;  but  held,  on  appeal,  that  the  gift  over 
was  not  in  the  alternative  on  the  happening  of 
either  of  two  distinct  events,  but  a  single  gift 
over  on  one  event  involving  two  things ;  that 
as  the  testatrix  had  not  separated  the  gift  the 
court  could  not  separate  it,  and  that  therefore 
the  gift  over  was  void  for  remoteness.  Harvey ', 
In  re,  Peek  v.  Savory,  39  Ch.  D.  289  ;  60  L.  T. 
79 — C.  A. 

Devise  of  real  estate  to  trustees  in  fee,  upon 
trust  for  J.  for  life,  and  after  his  death  upon 
trust  for  his  children  who  should  attain  twenty- 
one,  and  the  issue  of  any  child  who  should  die 
under  twenty-one  leaving  issue  who  should 
attain  that  age ;  but  in  case  there  should  be 
no  child,  nor  the  issue  of  any  child  of  J.  who 
should  attain  twenty-one,  the  property  was  to  be 
held  on  trust  for  the  child  or  children  of  R.  who 
should  respectively  attain  twenty-one,  if  more 
than  one,  in  equal  shares.  Provided  always,  that 
the  rents  of  the  trust  premises  should,  during 
the  term  of  twenty-one  years  from  the  day  next 
before  the  day  of  the  testator's  death,  be  accu- 
mulated by  way  of  compound  interest,  and  the 
accumulated  fund  should  be  held  in  trust  for 
the  child,  if  only  one,  or  all  the  children  equally, 
if  more  than  one,  of  R.  who  should  attain 
twenty-one.  J.  died  without  ever  having  had  a 
child.  R.  had  six  children  who  attained  twenty- 
one.  The  youngest  of  them  was  born  after  the 
eldest  had  attained  twenty-one,  but  before  the 
end  of  the  period  of  accumulation  : — Held,  that 
-the  gift  over  to  the  children  of  R.  was  divisible 
into  two  distinct  alternative  gifts,  viz.  (1)  a  gift 
over  in  the  event  of  there  never  being  any  child 
of  J.;  (2)  a  gift  over  in  the  event  of  no  child  or 
issue  of  any  child  of  J.  attaining  twenty-one ; 
-and  that  consequently  the  first  alternative  was 
not  too  remote,  and  the  gift  over  was  in  the 
events  which  had  happened  good.  Evert  v. 
Challi*  (7  H.  L.  C.  531)  explained.  Stuart  v. 
Cockerell  (5  L.  R.,  Ch.  713)  distinguished.  Wat- 
jfon  ▼.  Young,  28  Ch.  D.  436  ;  54  L.  J.,  Ch.  502  ; 
33  W.  R.  637— Pearson,  J. 

Investment  of  certain  Moneys — Payment  to 
Persons  named — Further  Limitations.] — A  tes- 
tatrix directed  that  the  interest  of  3,0002.,  which 
was  a  charge  upon  certain  real  estates  belong- 
ing to  C,  should  be  each  year  invested,  and 
when  it  amounted  to  5001.  should  be  divided 
equally  between  A,  and  B.,  and  so  continued 
until  they  should  have  received  1,0007.  each. 
She  further  directed  that  if,  at  the  time  they 
should  have  received  the  last  instalment,  the 
estates  held  by  C.  should  still  be  in  the  hands  of 
a  member  of  her  family,  and  a  Protestant,  the 
interest  of  the  3,0002.  was  still  to  continue  to  be 


invested,  and,  as  it  amounted  to  a  sufficient  sum, 
to  be  applied  to  buying  up  the  tithe  rent-charges 
on  the  estate  one  by  one.  When  the  tithe 
rent-charges  were  all  bought  up,  the  3,0002.  was 
to  lapse  to  the  owner  of  the  estates.  In  the 
event  of  the  said  estates  not  being  in  the  hands 
of  a  Protestant  member  of  her  family  at  the 
time  A.  and  B.  should  have  received  the  instal- 
ment, or  if,  during  the  time  of  buying  up  the 
rent-charges,  they  should  cease  to  belong  to  a 
Protestant  member  of  her  family,  the  3,0002. 
was  to  be  divided  equally  between  A.,  B.,  D.  and 
E. : — Held,  that  the  entire  trust  for  accumula- 
tion was  void  for  remoteness.  Smith  v.  Cuning- 
lmme,  13  L.  R.,  Ir.  480— V.-C. 
See  also  next  case. 

Powers  of  Appointment.]— See  post,  cols.  2101, 
2102. 


11.  Uncertainty. 

Gift  to  any  Kieee  or  Female  Relative  of  A., 
provided  she  marries  a  Person  named  B.] — A 

testator  left  all  his  property  upon  trust  for  A. 
for  life,  and  from  and  after  his  death,  to  pay 
the  same  to  any  niece  or  female  relative  of  A., 
provided  she  marries  a  person  of  the  name 
of  B.,  residing  in  the  county  of  T.,  and  who 
has  been  born  and  reared  a  Roman  Catholic ;  but 
the  said  bequest  is  not  to  vest  in  the  niece  or 
female  relative  of  A.  so  marrying  a  B.  until  five 
years  after  the  death  of  A. : — Held,  to  be  void 
for  remoteness,  and,  on  appeal,  to  be  void  for 
uncertainty.  Smithwick  v.  Hay  den,  19  L.  R., 
Ir.  490— C.  A. 

Gift  for  Hospital  rendered  Impossible.]— A 

testator,  by  deed-poll,  duly  enrolled  in  Chancery, 
conveyed  to  trustees  a  piece  of  land  and  cottages 
for  the  purpose  of  an  hospital  for  ten  aged  or 
infirm  poor  persons,  preference  being  given  to 
particular  parishes.  By  his  will,  made  in  1882, 
he  charged  his  copyhold  and  freehold  estates 
with  his  debts  and  funeral  expenses  and  legacies, 
and  gave  the  residue  of  his  personal  property  to 
the  trustees  of  the  deed-poll  upon  trust  to  build 
an  hospital  on  the  site  of  the  premises  conveyed 
by  the  deed-poll,  and  to  employ  the  income  of 
the  remainder  in  insurance  and  repairs,  and 
paying  182.  or  more  to  each  of  the  ten  poor 
inmates,  and  the  ultimate  balance  (if  any)  to 
aged  and  deserving  poor  of  either  sex  as  out-of- 
door  pensioners.  The  testator  died  within 
twelve  months  from  the  execution  of  the  deed- 
poll,  which  therefore  became  void  under  the 
Statute  of  Mortmain.  Upon  further  considera- 
tion in  an  administration  action : — Held,  that 
the  ultimate  gift  of  the  balance  of  the  dividends 
failed  for  uncertainty,  and  that  the  legacies 
'  must  be  paid  out  of  the  proceeds  of  the  real 
estate,  and  the  debts  and  funeral  expenses  in  the 
first  instance,  out  of  the  personalty.  Taylor, 
In  re,  Martin  v.  Freeman,  58  L.  T.  538 — 
Kay,  J. 

Gift  of  Shares  in  Unlimited  Company  subse- 
quently converted  into  limited  Company — 
Change  In  Value  of  Shares.] — A  testator  be- 
queathed "fifty  shares  in  the  York  Union 
Banking  Company,"  to  be  held  upon  certain 
trusts.  At  the  date  of  the  will  the  company 
was  registered  and  incorporated  as  an  unlimited 
company  under  the  Companies  Acts,  and  the 

3  X 


2083 


WILL — Construction. 


mi 


testator  held  seventy  shares  therein  of  the 
nominal  value  of  1001.  each.  Between  the  dates 
of  his  will  and  his  death,  the  company  was 
registered  as  a  limited  company  under  the  same 
style,  except  that  the  word  "  limited"  was  added, 
and  each  1002.  share  was  converted  into  two 
shares  of  the  nominal  value  of  60Z.,  and  140 
of  these  new  shares  were  allotted  to  the  testator 
in  substitution  for  his  seventy  shares  of  100/. 
each : — Held,  that  the  bequest  was  not  specific 
but  general,  that  it  was  in  effect  a  gift  of  such 
a  sum  as  at  the  death  of  the  testator  should  be 
the  value  of  fifty  shares  of  1002.  each  in  the 
unlimited  company,  and  that  as,  by  reason  of 
events  of  which  the  testator  was  aware,  it  had 
become  impossible  to  determine  such  value,  the 
bequest  failed.  Gray,  In  re,  Dresser  v.  Gray, 
36  Ch.  D.  206  ;  56  L.  J.,  Ch.  »75  ;  57  L.  T.  132  ; 
35  W.  R.  795— Kay,  J. 


iiL    Perpetuities. 

Bequest  to  Individuals— For  the  purposes  of  a 
Convent.]— Bequest  of  1,000/.  to  S., "  Superioress 
of  the  Convent  of  Mercy  at  K.,  to  and  for  the 
purposes  solely  of  the  said  convent,  or  to  such 
other  person  as  may  be  superioress  of  the  said 
convent  at  my"  (the  testator's)  "decease": 
— Held,  that  the  bequest  was  valid  as  a  bequest 
to  the  person  who  should  be  superioress  of  the 
convent  at  the  testator's  death,  and  that  it  was 
not  the  less  so  by  reason  of  the  direction  to 
apply  it  solely  to  the  purposes  of  the  convent. 
Cooks  v.  Manners  (12  L.  R.,  Eq.  574)  approved 
and  followed.  Wilkinson's  Trusts,  In  re,  19 
L.  R.,  Ir.  631— C.  A. 

A  testatrix  by  her  will  gave  a  bequest  of  100/. 
to  the  Marist  Bisters  of  the  Convent  of  C,  a  be- 
quest to  M.,  Superioress  of  the  St.  Anne's  Con- 
vent of  Mercy,  in  trust  for  the  community  of 
the  said  convent,  and  a  bequest  of  the  residue 
of  real  and  personal  estate  to  G.,  Superioress 
of  the  Convent  of  D.,  in  trust  for  the  support 
and  maintenance- of  the  said  D.  Convent.  The 
communities  consisted,  at  the  death  of  the  testa- 
trix, of  a  superioress  and  a  number  of  sisters, 
whose  names  were  given.  There  was  no 
evidence  of  the  constitution  or  object  of  either 
of  the  convents : — Held,  that  the  community  of 
a  convent  means  the  persons  at  the  time 
members  of  the  convent,  and  that  these  legacies 
were  valid  bequests  to  the  respective  legatees  as 
individuals,  and,  therefore,  did  not  transgress  the 
rule  against  perpetuities.  Bradshaw  v.  Jack- 
man,  21  L.  R.,  Ir.  12— M.  R. 

For  Masses.]— The  testatrix  also  gave  a 

bequest  of  bank  stock  to  J.,  Provincial  of  the 
Franciscan  Missionaries  of  Merchant' s-quay,  in 
the  city  of  Dublin,  or  to  the  Provincial  of  the 
said  missionaries  at  the  time  of  the  testatrix's 
death,  for  the  offering  of  masses  for  the  repose 
of  the  soul  of  the  testatrix,  &c. : — Held,  that 
this  legacy  was  not  to  or  for  the  benefit  of  the 
Franciscan  Missionaries,  but  to  J.  individually, 
for  the  offering  up  of  masses,  and  as  such  was 
valid.    lb. 

Residuary  bequest,  the  income  thereof  to  be 
divided  between  the  two  priests  officiating  at 
the  time  of  the  testator's  decease,  and  such 
others  who  should  be  from  time  to  time  officiat- 
ing in  the  parish  of  K,  in  consideration  of  their 


saying  masses  for  the  repose  of  the  testator'* 
soul : — Held,  void.  Dorrian  v.  QUmert,  15 
L.  R.,  Ir.  69— V.-C. 


iv.    ThellusBon  Act. 

Accumulation  of  Income  —  Provision  fcr 
Raising  Portions.] — A  testator,  who  died  in 
1858,  by  his  will,  dated  in  that  year,  gave  life 
annuities  to  his  wife  and  two  brothers,  and 
directed  that  the  income  of  his  residuary 
personal  estate,  and  the  rents  and  profits  of  cer. 
tain  freehold  and  leasehold  properties,  should  be 
accumulated  during  the  life  of  his  wife  and 
brothers  and  the  survivor  ;  and  after  the  de- 
cease of  the  survivor  he  bequeathed  his  residuary 
personal  estate  and  the  accumulation  of  the  in- 
come thereof,  and  of  the  rents  and  profits  of  the 
freeholds,  and  leaseholds,  to  his  nephews  and 
nieces,  children  of  his  two  brothers,  "the same 
to  be  paid  to  them  on  their  respectively  attain- 
ing the  age  of  twenty-one  years.*1  The  testator 
gave  the  freeholds  and  leaseholds  to  other  per- 
sons. The  wife  and  brothers  survived  the  tes- 
tator, and  lived  for  more  than  twenty-one  yeas 
after  his  death.  The  questions  were,  whether 
the  direction  to  accumulate  was  invalid  as  being 
contrary  to  the  Thellusson  Act,  or  whether  it 
came  within  the  exception  contained  in  8. 2  of 
that  statute.  For  the  nephews  and  nieces,  it 
was  argued  that,  although,  according  to  the 
authorities,  the  gift  of  the  capital  of  the  resi- 
duary personal  estate,  together  with  the  accu- 
mulations thereof,  was  not  a  "  provision  for 
raising  portions/'  within  the  exception  to  this 
act,  yet  the  gift  of  the  accumulations  of  the 
rents  and  profits  of  the  freeholds  and  leaseholds, 
not  being  accompanied  by  a  gift  of  the  freehold! 
and  leaseholds  themselves,  was  such  a  provision ; 
and  that,  therefore,  as  to  such  rents  and  profits, 
the  direction  for  accumulation  was  effectual  :— 
Held,  that  the  rents  and  profits,  could  not  be 
severed  from  the  aggregate  fund,  as  a  part  of 
which  they  were  given ;  and  that  the  direction 
for  accumulating  them  was  not  a  "  protision  for 
raising  portions  "  within  the  exception,  and  was 
ineffectual  beyond  the  twenty-one  years  allowed 
by  the  act.  .  Walker,  In  re,  Walker  v.  WaUur, 
54  L.  T.  792— Kay,  J. 


v.    To  Charities— See  Chabitt. 


d.  Specific  Bequests  ajsd  Devises. 

Speoifle  Bequests— What  are.]— A  specific 
legacy  is  something  which  a  testator,  identifying 
it  by  a  sufficient  description,  and  manifesting  an 
intention  that  it  should  be  enjoyed  in  the  state 
and  condition  indicated  by  that  description, 
separates  in  favour  of  a  particular  legatee,  from 
the  general  mass  of  his  personal  estate.  Bsberi- 
son  v.  Broadbent,  8  App.  Cas.  812 ;  53  L  X, 
Ch.  266 ;  60  L.  T.  243 ;  32  W.  B.  205-EL 
(E.). 

By  marriage  settlement  a  wife  had,  in  the 
event  of  her  dying  in  her  husband's  lifetime,  a 
power  of  appointment  by  will  over  the  property 
therein  comprised,  which  in  the  event  of  bar 
surviving  him  became  hers  absolutely.  At  the 
date  of  the  wife's  death  the  property  comprised 
in  the  marriage  settlement  included  Consols  sad 


2085 


WILL — Construction. 


2086 


Reduced  and  New  Three  per  Gents. ;  her  separate 
property  comprised  Consols.  By  her  will  the 
wife,  after  reciting  the  settlement,  gave  and 
appointed  everything  she  had  power  to  dispose 
of  to  trustees,  and  then  gave  a  number  of  stock 
legacies  in  the  form,  "  I  direct  my  trustees  to 
stand  possessed  of  1,0002.  Consols  upon  trust  to 
pay  the  dividends  to  A.  for  life,  and  after  his 
death  to  transfer  the  same  sum  of  Consols  to  his 
children  ; "  and  in  the  form,  "  I  direct  my 
trustees  to  transfer  1,6002.  Consols  to  B."  The 
New  Three  per  Cents,  so  given  amounted  to 
exactly,  and  the  Reduced  Three  per  Cents,  to 
very  nearly,  the  amount  of  those  stocks  subject 
to  the  settlement.  The  amount  of  Consols  so 
given  was  more  than  that  subject  to  the  settle- 
ment, but  lees  than  the  amounts  subject  to  the 
settlement  and  belonging  to  her  separate  estate 
taken  together.  The  will  contained  a  residuary 
gift : — Held,  that  all  the  legacies  were  specific, 
that  those  of  New  and  Reduced  Three  per  Cents, 
failed,  and  those  of  Consols  could  only  be  paid 
pro  tanto  out  of  the  Consols  belonging  to  the 
testatrix's  separate  estate.  Young,  In  re,  Trye 
v.  Sullivan,  52  L.  T.  754— Pearson,  J. 

A  testator  by  his  will  directed  his  executor 
to  transfer  any  money  that  he  might  have  in 
hank  stock  at  his  death  into  the  executor's 
name,  and  pay  the  income  to  his  wife  for  life,  or 
until  she  should  marry  again,  and  if  she  should 
marry  again  that  she  should  thereupon  forfeit 
her  life  interest  in  the  fund,  and  that  the  whole 
of  the  bank  stock  should,  upon  his  wife's  second 
marriage,  be  distributed  as  follows : — 1,0002.  to 
be  retained  by  his  said  executor,  and  applied  by 
him  in  having  masses  offered  for  the  repose  of 
testator's  soul,  and  the  residue  to  be  distributed 
among  such  Roman  Catholic  charities  in  Dublin 
as  his  executor,  in  his  absolute  discretion,  might 
think  fit ;  but  if  his  wife  did  not  marry  again, 
the  testator  directed  that  at  her  death  his  execu- 
tor should  retain  a  sum  of  2,0002.  out  of  the 
bank  stock,  and  apply  the  same  as  he  saw  fit  in 
having  such  number  of  masses  as  he  approved 
of  offered  up  for  the  repose  of  testator's  soul, 
and  for  the  repose  of  the  soul  of  his  wife  ;  and 
that  the  residue  of  the  bank  stock  which  should 
remain,  after  providing  for  such  masses  as  afore- 
said, should  be  divided  in  five  equal  parts,  and 
paid  to  the  treasurers  of  five  different  charitable 
institutions  named  in  his  will,  and  the  testator 
appointed  R.,  his  executor,  his  residuary  legatee. 
The  testator  died  leaving  his  wife  surviving. 
8he  never  married  again,  and  survived  R.  R. 
survived  the  testator,  and  died  without  having 
applied  any  portions  of  the  bank  stock  in  having 
masses  said ;  and  by  his  will  he  bequeathed  all 
the  property  he  derived  in  reversion  or  otherwise 
under  the  testator's  will : — Held,  that  the  gift 
of  the  residue  of  the  bank  stocks,  after  provid- 
ing for  such  masses,  was  a  specific  gift  of  the 
portion  of  bank  stock  remaining  after  taking 
2,0002.  out  of  it ;  that  the  testator's  widow  not 
having  married  again,  and  having  survived  R., 
the  gift  of  2,0002.  failed,  the  event  upon  which 
it  was  given  never  having  arisen ;  and  that  the 
legacy  of  2,0002/  fell  into  the  general  residue, 
and  therefore  passed  to  R.  under  the  residuary 
bequest  in  the  testator's  will.  Fee  v.  M'Manut, 
15  L.  R.,  It.  31— C.  A. 

A  testator  bequeathed  "fifty  shares  in  the 
York  Union  Banking  Company,"  to  be  held 
upon  certain  trusts.*  At  the  date  of  the  will  the 
company  was  registered  and  incorporated  as  an 


unlimited  company  under  the  Companies  Acts, 
and  the  testator  held  seventy  shares  therein 
of  the  nominal  value  of  1002.  each.  Between 
the  dates  of  his  will  and  his  death,  the  company 
was  registered  as  a  limited  company  under  the 
same  style,  except  that  the  word  "  limited  *'  was 
added,  and  each  1002.  share  was  converted  into 
two  shares  of  the  nominal  value  of  602.,  and  140 
of  these  new  shares  were  allotted  to  the  testator 
in  substitution  for  his  seventy  shares  of  1002. 
each :— Held,  that  the  bequest  was  not  specific. 
Gray,  In  re,  Dresser  v.  Gray,  36  Ch.  D.  205 ; 
56  L.  J.,  Ch.  975  ;  57  L.  T.  132  ;  35  W.  R.  795— 
Kay,  J. 


Specific  or  Demonstrative  Legacy.] — M. 


S.,  by  her  will  dated  in  1865,  directed  the  trnstees 
thereof  to  stand  possessed  of  the  sum  of  1,5002., 
then  invested  in  the  Bombay,  Baroda,  and  Central 
India  Railway  Company,  upon  trust  for  her 
brother,  who  had  then  disappeared,  for  life,  if 
he  should  present  himself  to  the  trustees  within 
five  years  after  her  death ;  and  after  the  five 
years  or  the  decease  of  her  brother,  whichever 
should  first  happen,  she  bequeathed  the  sum  of 
5002.,  part  of  the  Bombay,  Baroda,  and  Central 
India  Railway  shares,  to  the  trustees  of  a  charity 
for  the  benefit  thereof.  M.  S.  was  at  the  date  of 
her  will  possessed  of  about  1,9002.  in  the  railway, 
but  at  tne  date  of  her  death  in  1881  she  was 

Cessed  of  no  property  therein,  and  the  brother 
not  appeared : — Held,  that  the  legacy  to  the 
charity  was  a  specific  and  not  a  demonstrative 
legacy,  and  that  the  investment  out  of  which  it 
was  given  having  ceased  to  exist,  the  legacy  was 
not  payable  to  the  charity  out  of  the  testatrix's 
general  estate.  Sayer,  In  re,  Mo  Clellan  v.  Clark, 
53  L.  J.,  Ch.  832  ;  50  L.  T.  616— Pearson,  J. 


Specific  legacy  or  Residuary  Bequest.] — 


A  testator  by  his  will,  after  directing  his  exe- 
cutors to  pay  all  his  just  debts  and  funeral  and 
testamentary  expenses,  and  giving  pecuniary 
legacies  to  individuals  and  to  charities,  gave  all 
his  personal  estate  and  effects  of  which  he 
should  die  possessed,  and  which  should  not 
consist  of  money  or  securities  for  money,  to  E. 
A.  R.  absolutely.  And  he  gave  and  devised  all 
the  rest,  residue,  and  remainder  of  his  estate, 
both  real  and  personal,  to  his  executors  upon 
certain  trusts ;  ail  the  legacies  to  be  free  of  legacy 
duty ;  the  legacies  for  charitable  purposes  to  be 
paid  exclusively  out  of  such  part  of  his  personal 
estate  as  might  lawfully  be  appropriated  to  such 
purposes  and  preferably  to  any  other  payment 
thereout : — Held,  that  the  legacy  to  E.  A.  EL  was 
not  specific,  and  not  exempt  from  the  payment 
of  the  pecuniary  legacies.  Robertson  v.  Broad- 
bent,  supra. 

Specific  Devise— After-acquired  Freeholds.]— 
A  testator,  by  a  codicil  executed  in  1867,  devised 
to  the  defendant  "all  those  three  freehold 
cottages  .  .  .  and  premises  thereunto  belonging 
which  I  have  lately  purchased."  At  that  date 
he  owned,  as  tenant  in  common  with  his  brother, 
a  share  in  a  piece  of  garden-land  adjoining  one 
of  the  cottages,  which  he  occupied  as  his  resi- 
dence from  1870  until  his  death  in  1888.  In 
1875  the  testator's  brother  devised  to  him  his 
share  in  the  garden-land,  which  the  testator 
thenceforward  occupied  with  his  residence: — 
Held,  that  the  garden-land  did  not  pass  under 
the  devise  in  the  codicil.    Cave  v.  ffdrrit,  57  L. 

3X2 


2087 


WILL — Construction, 


2088 


J.,  Ch.  62;  67 
Kekewich,  J. 


L.  T.  768:    36  W.  R.   182— 


Subsequent  Contract  to  Purchase."!— A. 

devised  to  G.  for  life,  "  my  cottage  and  all  my 
land  at  S.,n  subject  to  the  stipulation  (among 
others)  that  the  plantations,  heather,  and  furze 
be  all  preserved  "in  their  present  state,"  and 
devised  "  all  other  my  freehold  manor,  messuages, 
lands,  and  real  estate  whatsoever  and  whereso- 
ever" to  trustees  upon  trust  for  sale.  At  the 
date  of  his  will  A.  had  a  small  cottage  with 
twenty-two  acres  of  rough  land  held  with  it, 
and  he  subsequently  contracted  to  purchase  from 
G.  a  house  of  considerable  size  with  gardens  and 
land  comprising  ten  acres  closely  adjoining  the 
cottage  and  land.  The  contract  was  not  com- 
pleted at  his  death  : — Held,  that  a  contrary 
intention  within  the  meaning  of  the  24th  section 
of  the  Wills  Act  was  not  shown  with  sufficient 
clearness,  but  that,  construing  the  will  as  if  it 
had  been  made  on  the  day  of  the  testator's  death, 
having  regard  to  the  circumstances  at  that  date, 
and  to  the  residuary  devise,  the  specific  devise 
more  aptly  referred  to  the  cottage  and  rough 
land,  and  did  not  carry  the  after-acquired  pro- 
perty. Portal  and  Lamb,  In  re,  30  Ch.  D.  50 ; 
64  L.  J.,  Ch.  1012 ;  63  L.  T.  660 ;  33  W.  R.  859 
— C.A. 

The  words  "  all  my  land  at  S."  would,  if  used 
alone,  have  been  sufficient  to  carry  the  after- 
acquired  land  with  the  house  standing  upon  it ; 
but  upon  the  authority  of  Ewer  v.  Hay  den  (Cro. 
Eliz.  476,  658),  by  force  of  the  context  the  word 
"land"  must  be  taken  as  confined  to  lands  in 
contradistinction  from  buildings.    lb. 


Effect  of  i.  24  of  Willi  Act]— Semble,  per 
Lindley,  L. J. :— S.  24  of  the  Wills  Act,  which 
provides  that  a  will  shall  speak  as  to  the  real 
and  personal  estate  comprised  in  it  (i.e.,  the 
will)  from  the  day  of  the  testator's  death,  leaves 
open  the  question  whether  a  particular  property 
passes  by  the  specific  or  the  residuary  devise.  Ibm 

Ademption  of.]— See  infra. 


e.  Ademption  and  Satisfaction. 
L  Ademption. 

Parol  Evidence.] — Parol  evidence  and  de- 
clarations of  the  testator  contemporaneous,  or 
subsequent,  are  admissible  to  rebut  or  to  confirm 
the  legal  presumption  of  ademption,  but  they 
must  be  directed  to  the  very  transaction  relied 
on  as  an  ademption.  Griffith  v.  Bourke,  21  L. 
R.,  It.  92— M.  R. 

Stranger  or  Person  in  Parental  Relation.] — 
Difference  of  the  legal  presumption  where  the 
legacy  and  gift  are  by  a  stranger,  and  where 
they  are  by  one  standing  in  a  parental  relation. 
lb. 

Moral  Obligation  other  than  Parental.] — The 
doctrine  of  ademption  of  legacies  founded  on 
parental  or  quasi-parental  relation  applies  also 
to  cases  where  a  moral  obligation  other  than 
parental  or  quasi-parental  is  recognised  in  the 
will,  though  without  reference  to  any  special 
application   of   the    money.     Pollock,  In  re, 


Pollock  v.  Worrall,  28  Ch.  D.  552  ;  64  L.  J.,Ch. 
489  ;  62  L.  T.  718— C.  A. 

A  testatrix  by  her  will  bequeathed  to  a  niece 
of  her  deceased  husband  6002.  with  these  words, 
"  according  to  the  wish  of  my  late  beloved  hus- 
band," and  she  afterwards  in  her  lifetime  paid 
$001.  to  such  legatee,  with  a  contemporaneous 
entry  in  her  diary  that  such  payment  was  a 
"legacy  from"  the  legatee's  "uncle  John":— 
Held,  that  the  presumption  was  that  such  legacy 
was  adeemed  to  the  extent  of  3002.,  and  that 
such  presumption  of  ademption  pro  tanto  only 
was  not  displaced  by  evidence  that  more  than  a 
year  before  the  3002.  was  given  the  testatrix 
had  said  that  the  legatee,  when  asked  by  the 
testatrix  whether  she  would  rather  receive"3002. 
down  than  a  larger  sum  after  the  testatrix's 
death,  had  replied  that  she  would  prefer  SOOJL 
down.    lb. 

Legacy  to  Priest — Gift  to  Archbishop  for 
same  Purpose.] — Legacy  to  the  parish  priest  of 
the  parish  K.,  for  the  erection  of  a  new  chapel 
in  the  town  C. : — Held,  adeemed  by  the  gift  of 
a  like  sum,  for  the  same  purpose,  to  the  Roman 
Catholic  Archbishop  of  the  diocese  by  the 
testator  in  his  lifetime.  Griffith  v.  Bourke, 
supra. 

Will  speaking  from  the  Date — Contrary  In- 
tention.]—J.  made  his  will,  dated  the  6th  March, 
1879,  and  thereby  bequeathed  all  his  real  and 
personal  estate  to  his  executors,  in  trust  to  pay 
certain  legacies  which  he  set  forth.    The  will 
then  proceeds  as  follows : — "And  inasmuch  as  my 
property  almost  exclusively  consists  of  United 
States  securities,  which  are  to  be  redeemed  by 
that  Government  at  specified  times,  my  will  is 
that  they  be  not  disposed  of  or  realised  until 
they  are  redeemed  by  the  said  Government,  I 
direct  that  in  case  I  shall  die  before  the  time 
for  such  redemption  shall  arrive  of  the  said 
securities,  the  interest  to  accrue  due  thereon 
shall  be  divided  equally  "  between  certain  chari- 
ties which  the  testator  specified.    At  the  date  of 
the  will  the  testator's  property  consisted  of  two 
United  States  5-20  bonds  of  1869  loan  for  1,000 
dollars  each,  four  bonds  of  the  same  loan  for 
500  dollars  each,  and  three  bonds  of  the  United 
States  6  per  cent.,  1861,  loan  for  1,000  dollars 
each.    Shortly  after  the  date  of  the  will  he  sold 
these  bonds,  and  purchased  in  lieu  of  them  four 
United  States  bonds  for  1,000  dollars  each,  and 
one  bond  of  the  Victoria  Government  for  6002. 
The  testator  died  on  the  11th  May,  18S3,  the 
last-mentioned  securities  being  then  in  his  pos- 
session : — Held,  that  the  bequest  to  the  charities 
was  adeemed.    Murphy  v.  Cheevers,  17  L.  R.,  Ir. 
206— V.-C. 


Legaoy  of  Share  in  Settled  Fund  — SpeciAe 
Gift  J— A  testatrix  by  her  will,  after  directing 
the  payment  of  her  debts,  and  giving  certain 
legacies,  gave  a  sum  of  7,5002., "  which  I  believe 
is  left  under  uncle  Price's  will  to  me,"  in  various 
legacies  to  several  persons.  At  the  date  of  her 
will  she  was  entitled  in  reversion  to  shares  in 
two  sums  of  25,0002.  and  20,0002.,  which  together 
amounted  to  7,6002.  under  her  uncle's  will  and  a 
settlement  which  contained  the  usual  power  to 
change  investments  made  by  him.  When  the 
reversion  fell  into  possession  the  testatrix  re- 
ceived the  money  representing  her  share,  which 
she  invested   and   the   investments  could   be 


2089 


WILL — Construction. 


2090 


traced :— Held,  that  the  gift  of  the  7,5002.  was 
not  adeemed,  but  was  effectual  so  far  as  the 
funds  representing  the  shares  of  the  testatrix 
under  her  uncle's  will  and  settlement  could  be 
traced.  Kenyan's  Estate,  In  re,  Mann  v.  Knapp, 
56  L.  T.  626— Chitty,  J. 

Specific  Bequest  —  Charge  on  Estate.]  —  A 
testator,  by  his  will  dated  the  23rd  June,  1869, 
after  reciting  that  he  was  entitled  as  against  the 
M.  estates  to  the  sum  of  7,9662. 11*.  id.,  being 
the  amount  ascertained  to  be  paid  by  him  in  his 
character  of  executor  of  the  late  R.  H.  B.,  in 
discharge  of  the  residue  of  liabilities  to  which 
the  inheritance  in  the  M.  estates  was  liable, 
bequeathed  to  his  son  W.  the  sum  of  7,9661, 1  Is  Ad., 
or  such  other  sum  as  he  might  be  entitled  to 
raise  off  the  M.  estates.  The  testator  was  tenant 
for  life  of  the  M.  estates,  with  remainder  to  W. 
in  tail  male.  By  deed,  dated  the  9th  day  of 
July,  1875,  the  M.  estates,  and  also  the  B.  estates, 
of  which  the  testator  was  tenant  for  life,  with 
remainder  to  W.  in  tail,  were  re-settled.  This 
deed  recited  that,  upon  the  winding-up  of  the 
testamentary  estate  of  R.  H.  £.  (under  whose 
will  the  M.  estates  were  limited),  an  account 
was  settled  between  the  several  devisees  of  the 
respective  estates  of  R.  H.  E.,  with  a  view  to 
ascertain  their  liability,  and  that  the  testator 
had  been  ascertained  to  be  entitled  to  stand 
against  the  M.  estate  for  the  sum  of  8,3292.  0*.  2d., 
and  that  it  had  been  agreed  that  the  said  sum  of 
8,3292.  fa.  2d.  should  be  charged  on  the  inherit- 
ance of  the  said  several  estates  ;  and  by  the  said 
deed  the  M.  estates  and  the  B.  estates  were 
granted  to  trustees  for  five  hundred  years,  in 
trDst  to  raise  the  sum  of  8,3292.  0*.  2d.,  and  pay 
the  same  as  the  testator  should  appoint : — Held, 
that  there  was  no  ademption  of  the  bequest  to 
W.  of  the  charge  on  the  estates.  Longfield  v. 
Bantry,  15  L.  R.,  Ir.  101— V.-C. 

"All  my  interest  in  C.  Estate  "—Sale  before 
Testator's  Death.]— Testator  devised  "all  my 
interest  in  the  C.  estate  "  after  the  death  of  his 
wife,  to  M.  Previously  to  his  death  the  C.  estate 
was  sold  and  the  proceeds  of  sale  paid  into  court. 
The  money  was  then  paid  out  to  the  testator,  and 
part  of  it  was  paid  into  a  deposit  account  and 
part  into  his  current  account  with  other  moneys : 
—Held,  that  there  was  an  ademption  of  the  C. 
estate,  and  that  nothing  passed  to  M.  Clark  v. 
Brown  (2  8m.  &  G.  524)  not  followed.  Moore 
v.  Moore  (29  Beav.  496)  distinguished.  Manton 
v.  Tabois,  30  Ch.  D.  92  ;  54  L.  J.,  Ch.  1008  ;  53 
L.  T.  289  ;  33  W.  R.  832— V.-C.  B. 

Bequest  of  Business — Double  Portions.] — A  tes- 
tator bequeathed  the  residue  of  his  estate  (includ- 
ing a  business  which  he  directed  to  be  sold)  for  the 
benefit  of  his  children  equally.  He  had  two  sons 
and  three  daughters.  Subsequently  to  the  date 
of  his  will  he  assigned  the  business  to  his  eldest 
son  on  trusts,  which  provided  for  the  admission 
of  the  younger  son  as  partner  on  equal  terms 
with  the  elder  on  attaining  full  age,  the  repay- 
ment with  interest  to  the  father  of  a  sum  tem- 
porarily employed  by  him  in  the  business,  and 
the  payment  to  the  father  of  a  weekly  sum  of  102. 
for  life : — Held,  that  the  shares  of  the  sons  in  the 
residue  were  adeemed  to  the  extent  of  the  value 
of  the  property  assigned  on  trust  for  them  at  the 
time  of  the  assignment,  and  must  be  brought 


into  account  in  the  distribution  of  residue. 
Viokers,  In  re,  Viekers  v.  Viehers,  37  Ch.  D. 
625  ;  57  L.  J.,  Ch.  738  ;  68  L.  T.  920  ;  36  W.  R. 
546— North,  J. 


it    Satisfaction. 

Contemporaneous  Deed  and  Will.]  —  The 
circumstance  that  two  documents  are  contempo- 
raneous, so  that  both  are  present  to  the  mind  of 
the  donor  when  he  executes  each  of  them,  is  a 
strong  reason  against  holding  a  gift  in  one  to  be 
a  satisfaction  of  an  obligation  under  the  other 
to  pay  a  like  sum.  Horlock  v.  Wiggins,  39  Ch. 
D.  142 ;  68  L.  J.,  Ch.  46  ;  69  L.  T.  710—0.  A. 

By  a  separation  deed,  dated  the  7th  September, 
1844,  the  husband  covenanted  that  his  executors 
or  administrators  should  on  his  decease  pay  to 
his  wife,  if  she  survived  him,  1002. ;  with  a 
proviso  that  if  62.  per  month  was  paid  her  for  six 
months  from  his  death,  the  balance  should  only 
be  paid  at  the  end  of  that  period.  By  his  will, 
dated  the  6th  day  of  September,  1844,  but  alleged 
to  have  been  signed  on  the  9th,  "  after  all  my 
just  debts,  funeral  and  testamentary  expenses 
are  paid,  I  bequeath  to  my  wife  1002.  payable 
within  six  months  after  my  decease,  62.  to  oe  paid 
to  her  or  her  order  until  my  estate  is  finally 
settled,  and  the  same  to  be  deducted  from  the 
said  1002.  as  per  indenture  stated  in  our  mutual 
separation "  :— Held,  that  the  legacy  was  not  in 
satisfaction  of  the  sum  covenanted  by  the  deed 
to  be  paid,  but  that  the  widow  was  entitled  to 
both  sums.    lb. 

Double  Portions.] — A  father  on  the  marriage 
of  his  second  son,  hy  deed  of  settlement  cove- 
nanted to  pay  him  an  annuity  of  1,0002.  a  year  for 
life,  and  to  charge  the  annuity  on  a  sufficient 
part  of  the  real  estate  he  might  die  seised  of  ; 
provided  that  nothing  in  the  settlement  should 

Erevent  his  dealing  with  his  real  estate  during 
is  life,  or,  so  only  that  sufficient  real  estate  were 
left  charged  with  the  annuity,  by  will.  The 
father  subsequently  made  his  will  by  which  he 
devised  his  real  estate  (subject  to  the  charges 
and  incumbrances  thereon)  in  strict  settlement 
on  his  first  and  other  sons  in  tail  male  ;  he 
bequeathed  the  greater  part  of  his  personal 
estate  among  his  children,  giving  his  second  son 
legacies  the  income  of  which  when  invested 
would  be  considerably  more  than  1,0002.  a  year. 
He  died  leaving  three  sons : — Held  (Fry,  L.J., 
dissentiente),  that  the  words  "subject  to  the 
charges  and  incumbrances  thereon,"  were  too 
general  to  rebut  the  presumption  against  double 
portions,  and  that  the  second  son  was  not  entitled 
both  to  the  annuity  and  to  the  bequests  under 
the  will.  The  doctrine  of  double  portions  dis- 
cussed. Montague  v.  Sandwich  (Earl),  32  Ch.  D. 
526  ;  65  L.  J.,  Ch.  926  ;  54  L.  T.  602— C.  A. 

Legacy  —  Portion   in   Settlement.]— A.,  by 

marriage  settlement,  granted  certain  lands  to 
trustees,  to  raise  the  sum  of  3,0002.  for  the 
children  of  the  marriage  in  such  shares  as  A. 
should  appoint,  and  in  default  of  appointment 
equally  among  them.  A.  had  three  sons  and  six 
daughters.  The  power  of  appointment  was 
never  exercised.  A.  by  will  bequeathed  his 
residuary  estate,  which  realised  a  clear  fund, 
exceeding  what  his  daughters  would  have  been 
entitled  to  under  the   settlement  upon  trust, 


2091 


WILL — Construction. 


2092 


after  the  death  of  bis  wife  (to  whom  he  gave 
the  interest  thereon  for  life  for  the  maintenance 
of  his  daughters),  to  pay  each  of  his  daughters 
one-sixth  of  the  interest  while  unmarried,  and 
a  like  share  of  the  principal  on  marriage  with 
consent,  with  a  gift  over  to  the  survivors  of  the 
share  of  any  daughter  dving  unmarried : — Held, 
that  the  provisions  made  by  the  will  operated 
as  a  satisfaction  of  the  portions  given  to  the 
daughters  by  the  settlement.  Battersby's  Estate, 
In  re,  19  L.  R.,  Ir.  869— Monroe,  J. 

Legacy— Debt.  ]— A  testator  bequeathed  his 
wife  a  legacy  of  625/.  He  then  owed  her  that 
exact  amount.  The  debt  was  paid  off  in  his 
lifetime :— Held,  that  the  sum  was  not  payable 
as  a  legacy.  Fletcher,  In  re,  killings  v.  Fletcher, 
88  Ch.  D.  873  ;  57  L.  J.,  Ch.  1032  ;  69  L.  T.  313; 
86  W.  B,  841— North,  J. 

A  testator  bequeathed  2502.  to  his  son,  and 
directed  that  his  debts  of  every  kind,  including 
specialty  debts,  should  be  paid  out  of  his  personal 
estate  : — Held,  that  the  legacy  was  not  a  satis- 
faction of  a  debt  of  92/.  due  by  the  testator  to 
his  son  for  business  advances  on  a  current 
account  Buckley  v.  Buckley,  19  L.  B.,  Ir.  544 
— M.  B. 

Policy  subject  to  Payment  of  Debts— Testator's 
Lunacy— Payment  by  Committee.] — A  testator 
bequeathed  a  policy  on  his  own  life  on  trust  to 
pay  two  debts  due  from  him,  and  to  pay  the 
balance  of  the  money  to  be  received  on  the  policy 
if  any,  to  his  daughter  J.  The  testator  paid  off 
one  debt ;  he  became  lunatic ;  his  committee 
paid  off  the  other  debt : — Held,  that  J.  was  en- 
titled to  the  money  received  on  the  policy,  less  the 
debt  paid  by  the  committee.  Larking,  In  re, 
Larking  v.  Larking,  87  Ch.  D.  310 ;  67  L.  J., 
Ch.  282— North,  J. 


/.    Trusts. 
1.    Secret  Trusts. 

Communication  of  Object  of  Trust  to  Trustee.] 
—A.  B.  instructed  his  solicitor  to  prepare  for 
him  a  will  leaving  all  his  property  to  the  solicitor 
himself  absolutely,  but  to  be  held  and  disposed 
of  by  him  according  to  written  directions  to  be 
subsequently  given,  and  a  will  was  prepared  and 
executed  accordingly,  under  which  the  solicitor 
was  universal  legatee  and  sole  executor.  No  such 
directions  were,  however,  given  to  the  solicitor 
by  the  testator  in  his  lifetime,  but  after  his  death 
an  unattested  paper  was  found  by  which  the 
testator  stated  his  wish  that  X.  Y.  should  have 
all  his  property  except  a  small  sum  of  money 
which  he  gave  to  the  solicitor.  The  solicitor 
claimed  no  beneficial  interest  in  the  testator's 
property  except  to  the  extent  of  his  legacy, 
and  claimed  to  hold  the  rest  of  the  property 
as  trustee  for  X.  T. : — Held,  that  as  the  testator 
had  not  in  his  own  lifetime  oommunicated  to  the 
solicitor  the  objeot  of  the  trust  no  valid  trust  in 
favour  of  X.  T.  had  been  constituted,  and  accord- 
ingly that  the  solicitor  held  the  property  as 
trustee  for  the  next  of  kin  of  the  testator. 
Boyes,  In  re,  Boyes  v.  Carritt,  26  Ch.  D.  531  ;  63 
h.  J.,  Ch.  654 ;  60  L.  T-  581  ;  32  W.  B.  630— 
Kay,  J. 

Bequest  of  200/.  to  A.  and  B.  "  to  spend  as  I" 
(the    testatrix)    "shall,   by  word  of    mouth, 


direct  during  my  lifetime."  The  testatrix 
verbally  informed  A.  that  she  wished  to  leave 
"  something  to  J.,  and  something  to  the  Lord's 
work,"  and  suggested  C.  and  D.  as  persons  to 
whom  she  proposed  to  give  the  last-mentioned 
bequest.  After  the  testatrix's  death  A.  found  t 
letter  in  her  handwriting,  which,  after  reciting 
the  bequest  in  the  will  of  the  2002.,  proceeded  is 
follows: — u  I  would  ask  you  to  give  or  send  1001. 
to  J. ;  the  second  hundred  I  wish  sent  for  the 
Lord's  work,  50J.  to  C.  and  50Z.  to  D. ;  I  would 
ask  them  to  lay  it  out : " — Held,  that  no  valid 
trust  was  created  affecting  any  portion  of  the 
2002.  King's  Estate,  In  re,  21  L.  R.,  Ir.  27&- 
Monroe,  J. 

Admissibility  of   Evidence    to   show  Exist- 
ence.]— A  testator  who  died  in  Jan.,  1885,  by 
his  will  dated  in  Dec.,  1884,  bequeathed  to  his 
friends  A.  and  B.  the  sum  of  500/.  free  of  legacy 
duty  to  be  raised  and  be  paid  out  of  his  pure 
personalty,  "  relying,  but  not  by  way  of  trust, 
upon  their  applying  the  said  sum  in  or  towards 
the  object  or  objects  privately  communicated 
to  them "  by  him.    The  executors  objected  to 
pay  over  the  bequest,  on  the  ground  that  there 
was  a  secret  trust,  and  that  such  trust  appeared 
to  be  an  illegal  one.    The  legatee  accordingly 
applied  to  the  court  to  order  payment  of  the 
legacy.     The  executors  tendered  affidavits  to 
show  that  the  bequest  was  upon  a  trust   The 
legatees  objected  that  the  court  could  not  go 
beyond  the  terms  of  the  wiU  : — Held,  that  the 
evidence  was  admissible.    Russell  v.  Jaehen 
(10  Hare,  204)  followed.    Spencer's  WiU,  In  re, 
57  L.  T.  619— C.  A. 


ii.  Besmltin?  Trusts. 

In  what  Cases.]— By  an  agreement  between 
H.  and  B.  certain  shares  in  a  limited  bank* 
which  were  the  property  of  H.,  but  standing  in 
the  names  of  H.  and  B.,  were  to  be  held  for  B. 
for  life,  with  remainder  to  B.  for  life,  with 
remainder  to  such  charities  as  H.  should  by 
will  appoint.  H.  died  in  1878,  having  appointed 
the  shares  among  certain  charities,  subject  to 
R.'s  life  interest.  B.  died  in  1884.  A  winding- 
up  order  having  been  made  against  the  bank, 
the  executors  of  both  H.  and  B.  were  informed 
that  a  call  would  be  made  against  them  on  the 
shares.  All  the  charities  had  disclaimed.  The 
executor  of  B.  brought  an  action  against  H.'s 
executors,  one  of  whom  was  also  H.'s  residuary 
legatee,  claiming  indemnity  in  respect  of  the 
liability  on  the  shares  : — Held,  that,  on  the  dis- 
claimer by  the  charities,  there  was  a  resulting 
trust  of  the  shares  in  favour  of  H.'s  estate,  and 
that  H.'s  residuary  legatee  was  bound  to  in- 
demnify R.'s  executor.  Hobbs  v.  Wayet,  36  Ch. 
D.  256 ;  57  L.  T.  225  ;  36  W.  R  273— Kefa- 
wich,  J. 

A  testator's  will  contained  the  following 
clause : — I  give  land  bequeath  to  my  brother 
£.  whatsoever  real  estate  I  may  die  possessed 
of,1  wheresoever  situate,  on  trust  nevertheless 
to  pay  thereout  the  sum  of  8001.  due  from  me  to 
the  trustees  under  the  marriage  settlement  of  &, 
and  the  sum  of  300/.  due  from  me  to  R,  and 
also  on  trust  to  pay  to  each  of  my  sisters  M.  and 
C.  and  to  my  brother  A.,  as  long  as  they  respec- 
tively live,  the  sum  of  SOI.  everv  Tear.'*  Ihe 


2098 


WILL — Construction. 


2094 


will  contained  a  bequest  of  the  personalty  to  E. 
and  A.  and  certain  of  his  sisters,  and  appointed 
E.  executor  thereof :— Held,  that  the  word 
11  thereout "  and  the  words  "  and  also  on  trust " 
were  sufficient  to  show  that  the  gift  to  E.  was 
not  for  the  purposes  thereafter  expressed,  but 
onlj  subject  to  such  trusts  as  were  expressed. 
Xing  v.  Denison  (1  V.  &  B.  261)  explained. 
Crome  v.  Croome,  59  L.  T.  582— C.  A.  Affirmed 
87  L.  T.  Jour.  201—  H.  L.  (E.). 

Acceleration  of  Interests .]— See  ante,  col.  2052. 

ill    Precatory  Trusts. 

General  Bole  of  Construction.]— The  doctrine 
<rf  precatory  trusts  is  not  to  be  extended,  and. 
in  considering  whether  precatory  words  create 
a  trust,  the  court  will  not  look  only  to  particular 
expressions,  but  sec  whether  on  the  whole  will 
the  testator's  intention  was  to  create  a  trust, 
•and  regard  will  be  had  to  any  embarrassment 
sud  difficulty  which  would  arise  from  a  trust. 
Biggies,  In  re,  Gregory  v.  Edmondson,  infra. 

11  In  roll   confidence  she  will  do  what  is 

right."] — A  testator  gave  and  devised  all  his 
real  ana  personal  estate  unto  and  to  the  absolute 
use  of  his  wife,  her  heirs,  executors,  adminis- 
trators, and  assigns  "  in  full  confidence  that  she 
will  do  what  is  right  as  to  the  disposal  thereof, 
between  my  children,  either  in  her  lifetime  or 
by  will  after  her  decease  " : — Held,  that  under 
these  words  the  widow  took  an  absolute  interest 
in  the  property  unfettered  by  any  trust  in  favour 
<*f  the  children.    Lambe  v.  JSames  (6  L.  R.,  Ch. 
597),  Hutchinson  and  Tenant,  In  re  (8  Ch.  D. 
540),  Curnick  v.  Tuehsr  (17  L.  R.,  Eq.  320), 
and  Le  Mar  chant  v.  Le  Marehani  (18  L.  R., 
Eq.  444)  commented  on.    Adams  and  Kensington 
Vestry,  In  re,  27  Ch.  D.  394  ;  64  L.  J.,  Ch.  87  ; 
51  L.  T.  382  ;  32  W.  R.  883— C.  A. 

"  They  are  hereby  enjoined."] — Bequest  as 
follows  :  "  I  give  to  my  brother,  in  trust  for  my 
sisters,  M.,  C,  and  H.,  4,0002.,  ...  on  con- 
dition that  they  will  support  M.  M.  ;  at  the 
demise  of  either  or  any  of  the  above,  the  sur- 
vivors or  survivor  to  receive  the  increased  income 
produced  thereby.  They  are  hereby  enjoined  to 
take  care  of  my  nephew  J.,  as  may  seem  best  in 
the  future  "  : — Held,  that  the  sisters  took  abso- 
lutely as  joint  tenants ;  and  that  there  was  no 
precatory  or  other  trust  in  favour  of  the  nephew. 
Moore,  In  re,  Moore  v.  Roche,  55  L.  J.,  Ch.  418 ; 
54  L.  T.  231  ;  34  W.  R.  343— Kay,  J. 

"It  is    my  desire  that   she   allows."]— A 

testatrix  gave  all  her  property  real  and  personal 
to  her  daughter,  "  her  heirs  and  assigns  ;  and  it 
is  my  desire  that  she  allows  to  A.  G.  an  annuity 
of  25/.  during  her  life,  and  that  A.  G.  shall,  if 
she  desire  it,  have  the  use  of  such  portions  of  my 
household  furniture  as  may  not  be  required  by 
my  daughter."  The  daughter  and  her  husband 
were  appointed  executors : — Held,  that  no  trust  or 
obligation  to  pay  the  annuity  was  imposed  upon 
the  daughter,  but  that  there  was  only  a  request 
to  the  daughter,  not  binding  her  in  law,  to  make 
"that  provision  for  A.  G.  Biggies,  In  re,  Gregory 
w.  Edwiondson,  39  Ch.  D.  253  ;  59  L.  T.  884— C.  A. 

"In  order  that  she  might  provide  for."]— A 
testator  left  all  his  property  to  his  wife,  in  trust 
for  the  uses  thereafter  mentioned.    He  then  be- 


queathed certain  pecuniary  legacies,  and  stated 
that  it  was  his  will  that  his  youngest  son  P. 
should  live  and  reside  with  his  mother,  and  be 
attentive  to  her,  and  directed  by  her  in  order 
that  she  might  by  deed  or  by  her  last  will  and 
testament  provide  for  him  in  such  a  manner  as 
to  her  might  seem  most  expedient  and  proper  ; 
and  he  appointed  and  nominated  his  said  wife 
his  residuary  legatee  and  trustee  of  his  will,  in 
order  that  she  might  direct  and  govern  his  said 
children  and  assist  to  arrange  all  matters  between 
them ;  and  previous  to  her  death — provided  that 
she  did  not  marry  again — that  she  might  dispose 
of  the  residue  of  his  property  to  and  amongst  his 
said  children  and  provide  for  his  son  P.  as  she 
might  think  expedient ;  and  he  directed  that  if 
she  married  again  she  should  cease  to  be  trustee, 
and  receive  the  sum  of  100/.  only  ;  and  that  in 
such  case  his  son  E.  should  act  as  trustee  in  her 
stead.  He  nominated  his  son  E.  and  his  wife 
executor  and  executrix  : — Held,  that  the  tes- 
tator's wife  took  the  residue  absolutely,  and 
that  there  was  no  precatory  trust  in  favour  of  P. 
Morrin  v.  Morrin,  19  L.  R.f  Ir.  37— V.-C. 


g.    Annuity. 

Whether  for  Life  or  Perpetual.]— A  testator, 
being  the  lessor  of  the  lands  of  B.,  which  were 
held  under  him  by  a  lease  for  lives,  renewable 
for  ever,  at  a  yearly  rent  of  46?.,  made  a  will 
containing  the  following  dispositions  relating  to 
these  lands  :  "  I  hereby  give  and  bequeath  unto 
my  three  daughters  ?  naming  them]  «*  two 
years'  profit  rent  to  each  out  of  B.,  that  is  to 
say,  60*.  to  each,  to  be  paid  as  the  rent  becomes 
due  after  my  decease  ;  I  order  that,  in  case  any 
of  my  daughters  should  die  before  they  come  to 
the  age  of  twenty-one  years,  her  part  should  be 
divided  between  the  surviving  daughters  above 
mentioned.  I  also  will  and  bequeath  unto  my 
six  sons "  [naming  them]  "  all  my  interest  in 
M.  Farm  and  T.  farm,  and  51.  per  annum  to 
each  out  of  B.  after  my  daughters  are  paid  off." 
Upon  the  argument  of  a  demurrer,  it  not  ex- 
pressly appearing  from  the  pleadings  whether 
the  lessor  was  liable  to  any  or  what  head-rent  in 
respect  of  B. : — Held,  that  the  annuities  of  52. 
each  to  the  testator's  sons  were  not  perpetual 
annuities,  but  were  for  the  lives  of  the  annuitants 
only.  Whitten  v.  Banlon,  15  L.  R.,  Ir.  298— 
Ex.  D. 

Bight  of  Annuitant  to  have  Annuity  secured.] 
— The  testator  gave  all  his  real  and  personal 
estate  to  his  son,  upon  trust  to  pay  thereout 
weekly  and  every  week  to  the  testator's  wife 
during  her  life  the  sum  of  11.  10*.,  and,  subject 
thereto,  upon  trust  for  his  said  son  absolutely. 
The  testator  had  been  dead  four  years,  and  the 
weekly  payment  had  been  regularly  made  during 
all  that  period.  The  widow  now  asked  that  its 
future  payment  should  be  secured  by  the  sale  of 
the  property  and  the  investment  of  the  proceeds. 
The  estate  consisted  substantially  of  a  leasehold 
public-house,  and  the  business  carried  on  there, 
and  the  total  amount  of  it,  if  realised,  would 
not  have  been  equal  to  the  amount  of  the  capi- 
talised value  of  the  annuity : — Held,  that  the 
property  was  given  to  the  son  absolutely,  subject 
only  to  the  payment  of  the  annuity,  and  so  long 
as  he  paid  that,  he  was  entitled  to  the  quiet 


2095 


WILL — Construction. 


2096 


possession  of  his  property,  and  the  widow  was 
not  entitled  to  have  it  Bold.  Potter,  In  re, 
Potter  v.  Potter,  50  L.  T.  8— V.-C.  B. 

Gift  in  Beversion — Direction  to  Purchase — 
Death  of  Annuitant — Failure  of  Gift.] — A  tes- 
tator, having  an  absolute  power  of  disposition 
over  a  fund  subject  to  the  interest  of  a  tenant 
for  life,  directed  that  at  the  death  of  the  tenant 
for  life,  1,0002.  of  the  fund  should  be  invested  in 
the  purchase  of  a  life  annuity  for  the  benefit  of 
D.,  and  that  in  the  event  of  insolvency  or  aliena- 
tion by  D.,  the  annuity  fund  should  fall  into 
residue,  and  he  gave  his  residuary  estate  to  the 
aforesaid  tenant  for  life.  The  annuitant  pre- 
deceased the  tenant  for  life : — Held,  that  the 
gift  of  the  annuity  fund  failed,  and  the  fund 
fell  into  the  residue.  Power  v.  Hayne  (8  L.  R., 
Eq.  262)  followed.  Day  v.  Day  (1  Drew.  569) 
not  followed.  Draper's  Trusts,  In  re,  67 
L.  J.,  Ch.  942 ;  68  L.  T.  942 ;  86  W.  R.  783— 
Kekewich,  J. 

Charge  on  Leaseholds  or  Beal  Estate.]— See 
post,  col.  2114. 


A.  Powers  of  Appointment. 
1.  Inatrumenta  by  which  Exercised. 

Intention  to  exercise  Power  —  Residuary 
Gift.]— A  marriage  settlement  made  in  1840 
reserved  to  the  husband  a  general  power  of 
appointment  by  will  "expressly  referring  to 
this  power  or  the  subject  thereof."  By  his  will 
(not  referring  to  the  power)  he  gave  the  residue 
of  his  property  to  trustees  on  certain  trusts 
differing  from  those  declared  by  the  settlement 
in  default  of  appointment : — Held,  that  the 
power  was  exercised  by  the  will.  In  ascer- 
taining whether  a  testator  has  shown  an  inten- 
tion not  to  exercise  by  a  residuary  gift  a  general 
power  of  appointment  reserved  to  him  by  a 
settlement  made  by  himself  the  will  only  can  be 
looked  at.  Marsh,  In  re,  Mason  v.  Thorne, 
38  Ch.  D.  630  ;  67  L.  J.,  Ch.  639  ;  59  L.  T.  695  ; 
37  W.  R.  10— North,  J. 

A  testator,  who  had  under  a  settlement  a  power 
of  appointment  over  leasehold  and  other  personal 
estate  among  his  children  or  grandchildren  or 
other  issue,  by  his  will,  which  contained  no 
reference  to  the  power,  gave  "  all  the  real  and 
personal  estate  and  effects  whatsoever,  and 
wheresoever,  whether  in  possession,  reversion, 
remainder,  or  expectancy,  over  which  at  the 
time  of  my  decease  I  shall  have  any  beneficial 
disposing  power  by  this  my  will"  to  trustees, 
upon  trusts  partly  for  persons  who  were  objects 
of  the  power,  and  partly  in  excess  of  the  power  : 
— Held,  that  the  use  of  the  word  "  beneficial " 
did  not  conclusively  show  that  the  testator  could 
not  have  intended  to  exercise  a  power  which  be 
could  not  exercise  for  his  own  benefit  or  the 
benefit  of  his  estate.  Ames  v.  Cadogan  (12 
Ch.  D.  868)  discussed.  Von  Brockdorff  v. 
Malcolm,  30  Ch.  D.  172 ;  55  L.  J.,  Ch.  121  ; 
53  L.  T.  263  ;  33  W.  R.  934— Pearson,  J. 

There  being,  in  the  opinion  of  the  court,  upon 
the  will  taken  as  a  whole,  a  sufficient  indication 
of  an  intention  to  exercise  the  power  : — Held, 
that  the  power  was  exercised  by  the  will,  the 
trusts,  so  far  as  they  were  in  excess  of  the  power, 
being  inoperative.    lb. 


Share  and  Interest  in  Colliery  Company.} 

— A  testator  having,  under  a  settlement,  a  power 
of  appointment  over  two  freehold  estates,  B.  and 
S.,  and  over  one-fourth  share  in  a  colliery 
company,  by  his  will,  which  contained  do 
reference  to  the  power,  devised  to  one  son  "  all 
my  freehold  estates  at  B."  and  to  another  son 
"  my  estate  known  as  S.,"  and  also  bequeathed 
"all  my  shares  and  interest  in  the  above- 
mentioned  and  two  other  colliery  companies"  to 
his  three  daughters.  He  had  no  estate  of  his 
own  at  B.  and  S.  besides  the  settled  estates,  bat 
he  had  a  share  in  each  of  the  three  colliery  com- 
panies, besides  the  share  comprised  in  the  settle- 
ment : — Held,  that  the  bequest  of  all  his  shares 
and  interest  in  the  colliery  companies  operated 
as  an  appointment  of  the  settled  share,  as  the 
manner  in  which  he  had  exercised  his  power 
over  the  estates  of  B.  and  S.  showed  that  he 
intended  to  exercise  his  power  over  the  settled 
share  by  the  bequest  of  all  his  shares  and 
interest  in  the  colliery  companies.  Wait,  In  re, 
Workman  v.  Petgrave,  30  Ch.  D.  617  ;  54  L.  J„ 
Ch.  1172  ;  53  L.  T.  336 ;  33  W.  B.  930— Pear- 
son, J. 

Over  Beal  Estate — Testator  having  no- 
other  Bealty.  J — The  question  whether,  since  the 
Wills  Act,  a  special  power  of  appointing  real 
estate  is  exercised  by  a  general  devise,  where  the 
testator  had  neither  at  the  date  of  his  will  nor  of 
his  death  any  real  estate  of  his  own,  is  one  of 
intention  to  be  inferred  from  the  words  of  the 
will  and  from  the  surrounding  circumstances 
at  the  date  of  it,  particularly  the  enlarged 
operation  given  by  the  act  to  a  general  devise. 
A  testator  making  a  mere  general  devise,  though 
having  no  real  estate  of  his  own,  does  not 
thereby  sufficiently  indicate  an  intention  of 
exercising  a  special  power  of  appointing  real 
estate,  notwithstanding  that  the  objects  of  the 
power  happen  to  be  included  among  the  de- 
visees. Mills,  In  re,  Mill*  v.  MUU,  34  Ch.  D. 
186  ;  56  L.  J.,  Ch.  118  ;  56  L.  T.  666  ;  35  W.  B. 
133— Kay,  J. 

Exercise    of    Power   up    to    Specified 

Amount] — A  testator  by  his  will,  dated  in  1884. 
after  giving  his  residuary  real  and  personal 
estate  upon  certain  trusts  for  the  benefit  of  his 
widow  and  his  daughter  and  the  daughters 
children,  empowered  his  widow  by  will  to 
appoint  that  any  sum  or  sums  of  money  not 
exceeding  20,OOOZ.  should  after  her  death  be 
raised  and  applied  as  she  should  think  fit  The 
widow  by  her  will  dated  in  1835.  devised  and 
bequeathed  all  her  estate  and  effects  real  and 
personal  which  she  might  die  possessed  of  or 
entitled  to  unto  her  daughter  absolutely :— Held, 
that  by  force  of  the  27th  section  of  the  Wills 
Act,  the  general  devise  and  bequest  in  the 
widow's  will  operated  as  an  exercise  to  the 
extent  of  20,000£.  of  the  power  of  appointment 
contained  in  the  will  of  the  testator.  Jones* 
In  re,  Greene  v.  Gordon,  34  Ch.  D.  65  ;  56  L.  J, 
Ch.  58  ;  55  L.  T.  597  ;  35  W.  R.  74— Kay,  J. 


Power  created  after  Will.]— A  testa- 
trix, who  had  a  general  power  of  appointment 
over  the  A.  property,  by  her  will  in  1854  after 
specific  devises  and  bequests  devised  and  be- 
queathed the  residue  of  her  estate  to  X.  By  a 
deed-poll  in  1855  she  appointed  the  A.  property 
upon  such  trusts  as  she  by  deed  or  her  last  will 


2097 


WILL — Construction. 


2098 


"  should  from  time  to  time  or  at  any  time  there- 
after direct  or  appoint,"  and  in  default  of 
appointment  upon  trust  for  Y.  The  testatrix 
died  in  1857  : — Held,  that  reading  together 
88.  24  and  27  of  the  Wills  Act,  1837  (7  Will.  4 
&  1  Vict.  c.  26),  the  will  operated  as  an  exercise 
of  the  power  given  or  reserved  by  the  subsequent 
deed-poll  and  passed  the  property  to  X.  Boyes 
v.  Cook  (14  Ch.  D.  53)  approved.  Semble,  that 
the  case  also  fell  within  s.  23  of  the  Wills  Act, 
and  with  the  same  result.  Airey  v.  Bower ', 
12  App.  Cas.  263 ;  56  L.  J.,  Ch.  742 ;  56  L.  T. 
409;  36  W.  R.  667— H.  L.  (B.).  See  aUo 
Hernando,  In  re,  post,  col.  2105. 

P.,  a  married  woman,  made  a  will  the  day 
after  her  marriage  in  the  following  terms :  "  In 
pursuance  and  exercise  of  the  power  of  appoint- 
ment, vested  in  me  by  the  settlement  executed 
previously  to  my  marriage,  and  of  every  other 
power  enabling  me,  I  hereby  appoint,  give,  and 
bequeath  all  the  property  settled  by  me  on  my 
marriage,  and  over  which  I  have  any  disposing 
power,  unto  my  dear  husband."  After  the 
execution  of  the  will,  but  in  the  lifetime  of  P., 
0.  died,  having  by  will  bequeathed  1002.  East 
Indian  Railway  Annuities  in  trust  for  P.  for  life, 
with  remainder  as  she  should  by  will  appoint, 
with  remainders  over: — Held,  that  P.'s  will  was 
not  confined  to  the  property  comprised  in  her 
marriage  settlement,  but  operated  to  exercise 
the  power  given  her  by  the  will  of  O.  Old's 
Trusts,  In  re,  PengeUey  v.  Herbert,  54  L.  T.  677 
—Pearson,  J. 

Revocation — Valid  Appointment  in  Will  — 
Invalid  Appointment  by  Codicil.] — Testator  by 
will,  who  said  his  estate  would  realise  at  least 
10,0007.,  wished  4,0002.  to  be  invested  on  trust 
for  his  sister,  A.  P.,  for  her  life.  At  her  death 
the  principal  might  be  divided  between  her 
husband,  if  surviving,  and  children  as  she  might 
by  will  determine.  After  giving  other  legacies, 
the  testator  bequeathed  the  remainder  to  the 
children  of  J.  F.  A  sum  of  4,0002.  was  invested 
in  Consols  and  transferred  into  court.  A.  P.  by 
will  gave  all  the  residue  of  her  property,  includ- 
ing the  sum  of  4,0002.  left  to  her  by  the  testator, 
and  over  which  she  had  a  disposing  power,  to 
her  husband  and  children  in  equal  terms.  One 
son  after  the  date  of  the  will  died,  leaving  two 
children,  and  by  a  codicil  made  afterwards,  A.  P. 
bequeathed  the  share  which  would  have  gone  to 
him  in  trust  for  his  children.  On  petition  by 
the  husband  and  surviving  children  for  sale  of 
the  trust  fund  and  payment  of  the  proceeds  to 
them  : — Held,  that  the  invalid  appointment  by 
the  codicil  did  not  operate  as  a  revocation  pro 
tanto  of  the  gift  by  the  will  to  the  class,  and  that 
the  husband  and  surviving  children  were  entitled 
to  the  whole  of  the  fund.  Duguid  v.  Fraser,  31 
Ch.  D.  449  ;  65  L.  J.,  Ch.  285  ;  54  L.  T.  70 ;  34 
W.  R.  267— Kay,  J.  See  also  Kirwan's  Trusts, 
In  re,  infra. 

Will  of  Wife  during  Coverture — General 

Disposition  by  Will,  after  Death  of  Husband.] 
— A  married  woman,  having  in  a  settlement  a 
special  power  of  appointment  by  will  over  real 
estate,  executed  a  will  during  coverture  in  1866 
appointing  the  same.  After  the  death  of  her 
husband  she  made  three  other  wills.  In  the  first 
and  second  she  said  :  "  I  revoke  all  other  wills," 
and  in  the  third :  "  I  .  .  .  hereby  revoke  all 
wills,  codicils,  and  other  testamentary  disposi- 


tions heretofore  made  by  me,  and  declare  this  to 
be  my  last  will  and  testament,"  and  then  dis- 
posed of  all  her  estate,  "  including  as  well  real 
estate  as  personal  estate  over  which  I  have  or 
shall  have  a  general  power  of  appointment," 
but  she  did  not  in  any  way  exercise  or  affect  to 
exercise  the  power  in  the  settlement,  nor  did  she 
refer  to  it,  or  to  the  property  the  subject  of  the 
power : — Held,  that  the  testamentary  appoint- 
ment of  1866  was  revoked.  King  don.  In  reT 
Wilhins  v.  Pryer,  32  Ch.  D.  604  ;  65  L.  J.,  Ch. 
698  ;  64  L.  T.  753  ;  34  W.  R.  634— Kay,  J. 

— —  Testamentary  Appointment — Residuary 
Bequest.  ] — A  testator  executed  a  "  testamentary 
appointment "  under  a  general  power.  A  month 
later  he  executed  a  will  containing  a  residuary- 
bequest,  and  not  referring  to  the  testamentary 
appointment : — Held,  that  the  will  operated  as 
an  execution  of  the  power,  and  revocation  of 
the  testamentary  appointment.  Oibbes*  Settle- 
ment, In  re,  White  v.  Bandolf,  37  Ch.  D.  143 ; 
57  L.  J.,  Ch.  757  ;  68  L.  T.  11  ;  36  W.  R.  429— 
North,  J. 

Residuary  Gift — Appointment  to  Persons  not 
Objects.] — A  testatrix  having  a  testamentary 
power  of  appointment  over  a  trust  fund  in  favour 
of  her  children  only,  purported  by  her  will  to 
appoint  to  three  of  her  children,  including  F.  and 
B.,  one-fourth  each,  and  the  remaining  fourth  to 
a  grandchild,  not  an  object  of  the  power ;  and 
"all  the  rest,  residue,  and  remainder  of  my 
personal  estate  and  effects  whatsoever  and 
wheresoever,  and  of  what  nature  or  kind  soever,, 
and  over  which  I  have  any  power  of  disposal  by 
this  my  will,  I  give  and  bequeath  the  same  unto 
and  equally  between  my  said  sons  F.  and  B. 
share  and  share  alike  "  : — Held,  that  the  residuary 
gift  operated  as  an  appointment  to  F.  and  B„ 
of  the  one-fourth  badly  appointed  to  the  grand- 
child. Hunt's  Trusts,  In  re,  31  Ch.  D.  308  ;  5."> 
L.  J.,  Ch.  280 ;  54  L.  T.  69 ;  34  W.  R.  247— 
V.-C.  B. 

A  testatrix  had,  under  the  will  of  a  brother 
who  had  predeceased  her,  a  power  to  appoint  his 
property  by  will  among  his  nephews  and  nieces, 
and  the  children  or  child  of  deceased  nephews 
and  nieces.  She,  by  her  will,  gave  all  the  real 
and  personal  estate  of  which  she  might  be  seised 
or  possessed  at  the  time  of  her  death,  or  over 
which  she  might  have  any  testamentary  power 
of  disposition,  to  trustees,  upon  trust  for  sale  and 
conversion,  and  to  stand  possessed  of  the  pro- 
ceeds  (which  she  described  as  "  my  said  trust 
funds")  upon  trust  to  pay  costs  and  expenses, 
and  to  pay  her  debts  and  funeral  expenses  and 
certain  pecuniary  legacies,  and  then  upon  trust 
as  to  two  one-fourth  parts  of  her  trust  funds- 
respectively  for  persons  who  were  objects  of  the 
power  ;  and  upon  trust  as  to  the  other  two  one- 
fourth  parts  respectively  for  persons  who  were 
not  objects  of  the  power.  And  she  declared 
that,  in  case  of  the  failure  of  the  trusts  therein- 
before declared  of  any  of  the  one-fourth  parts  of 
her  trust  funds,  the  one-fourth  part,  or  so  much 
thereof  of  which  the  trust  should  fail,  should  be 
held  upon  the  trusts  thereinbefore  declared  of 
the  others  or  other  of  the  fourth  parts  of  which 
the  trusts  should  not  fail : — Held,  that  the 
testatrix  had  manifested  an  intention  to  exercise 
the  power,  and  that  as  to  one  moiety  of  the 
brother's  property  the  power  was  well  exercised. 


1 


2099 


WILL — Cotutruction. 


2100 


Held,  also,  that  as  to  the  other  moiety  of  the 
brother's  property  the  appointment  was  invalid, 
but  that  by  virtue  of  the  gift "  in  case  of  the 
failure  of  any  of  the  trusts  thereinbefore  de- 
clared," that  moiety  went  to  the  persons  to 
whom  the  first  moiety  was  well  appointed,  and 
that,  consequently,  no  case  of  election  arose. 
Swinburne*  In,  re,  Swinburne  v.  Pitt,  27  Ch.  D. 
696  ;  64  L.  J.,  Ch.  229  ;  33  W.  R.  394— Pear- 
son, J. 

By  Will  or  Deed.]— F.,  by  his  will,  devised  an 
estate  at  K.  to  his  daughter  H.  for  life,  and  directed 
that  H.  should  not  have  any  power  to  mortgage, 
sell,  or  give  it  away  during  the  term  of  her 
natural  life,  but  at  her  decease  she  might  give  it 
to  whom  she  pleased.  By  a  post-nuptial  settle- 
ment H.  and  her  husband  settled  the  K.  estate 
in  trust  for  all  their  children  equally.  After- 
wards H.,  by  her  will,  appointed  the  E.  estate 
to  her  only  child  for  life,  with  remainder  to  his 
children  : — Held,  that  H.  had  only  a  testamen- 
tary power  of  appointment  over  the  K.  estate, 
and  that  she  could  not  dispose  of  the  estate  by 
deed  during  her  life.  Flower,  In  re,  Edmonds 
v.  Edmonds,  55  L.  J.,  Ch.  200  ;  53  L.  T.  717  ;  34 
W.  R.  149— North,  J. 

A  testator  gave  by  will  the  whole  of  his 
property  to  his  three  nieces  during  their  joint 
and  several  lives,  and  added,  "In  leaving  my 
property  to  my  three  nieces  it  is  my  wish  that 
if  my  grandnephew  J.  conducts  himself  to  their 
satisfaction,  they  shall  leave  him  the  property  I 
now  leave  them  "  : — Held,  that  the  power  could 
only  be  exercised  by  will.  Moore  v.  Ffolliot,  19 
L.  R.,  Ir.  499— M.  R. 

Unattested  Codicil— Deed.] — A  holograph  co- 
dicil not  duly  attested  was  admitted  to  probate 
under  24  &  25  Vict,  c  114  :— Held,  that  though 
admitted  to  probate,  the  codicil  was  invalid  as  a 
testamentary  exercise  of  a  power  of  appointment, 
sections  9  and  10  of  the  Wills  Act  not  being 
repealed  by  24  &  25  Vict.  c.  114 :— Held,  also, 
that  the  codicil  could  not  be  treated  as  a  defec- 
tive attempt  to  execute  a  power  by  deed  which 
the  court  would  aid.  Kirwan's  Trusts,  In  re, 
infra. 

ii.  Fraud  on  Power. 

Bargain  to  Settle  the  appointed  Property.] — 
Real  estate  was  vested  in  trustees  under  a  will, 
upon  trust  as  to  one  moiety  to  pay  the  rents  to 
A.  for  life,  and  after  his  death  to  convey  it  to 
and  among  his  children  who  should  attain 
twenty-one,  and  if  he  had  no  such  child  then  on 
the  trusts  of  the  other  moiety,  and  as  to  the 
other  moiety  on  similar  trusts  for  B.  and  his 
children.  The  will  empowered  the  trustees  if 
they  should  think  fit,  to  convey  the  shares  of  A. 
.and  B.,  or  either  of  them,  to  them  in  fee.  In 
1882,  A.  and  B.,  the  younger  of  whom  was  of 
the  age  of  sixty-two.  and  neither  of  whom  had 
any  child,  having  incumbered  their  interests, 
and  being  pressed  by  their  mortgagees,  applied 
to  the  trustees  to  exercise  their  power  of  giving 
them  their  shares  of  the  estate  in  fee.  An 
arrangement  was  made  between  A.  and  B.  and 
the  trustees  that  the  trustees  should,  in  exercise 
of  their  power,  convey  the  estate  to  A.  and  B., 
as  tenants  in  common  in  fee,  and  that,  subject 
to  such  mortgages  as  should  be  approved  by 


the  trustees  for  raising  money  to  pay  off  the 
existing  mortgages,  a  part  of  the  property  should 
be  settled  upon  trusts  which  gave  A.  and  B. 
respectively  powers  of  appointment  in  favour  of 
their  respective  children  and  remoter  issue,  and 
powers  of  jointuring  their  wives.    The  trustees 
accordingly  conveyed  to  A.  and  B.,  as  tenants  in 
common  in  fee,  and  the   re-aettlement,  which 
vested  the  equity  of  redemption  in  new  trustees, 
with  a  power  of  sale,  upon  the  trusts  which  had 
been  arranged,  was  made  by  a  deed  which  re- 
cited that  the  trustees  had  exercised  the  power 
on  condition   that   the  settlement   should  he 
made : — Held,  that  looking  at  all  the  circum- 
stances of  the  case,  it  was  not  shown  that  the 
bargain    for    the    re-settloment    induced   the 
appointment,  or  that  if  the  bargain  had  not  been 
entered  into  the  appointment  would  not  hare 
been  made,  and  that  the  appointment  and  settle- 
ment were  therefore  valid,  and  that  the  trustees 
of   the    settlement   could  make  a  good  title. 
Turner's  Settled  Estates,  In  re,  28  Ch.  D.  205; 
54  L.  J.,  Ch.  690;  62  L.  T.  70  ;  33  W.  R.  265- 
C.  A. 

A  tenant  for  life,  having  power  to  charge 
settled  estates  with  a  jointure  of  200Z.  a  year 
in  favour  of  a  wife,  executed  a  deed  appointing 
the  full  amount,  but,  as  the  court  found  upon 
the  evidence,  upon  a  bargain  and  with  the  sole 
purpose  that  601.  should  be  paid  each  year  out 
of  the  jointure  to  a  third  person,  and  the  deed 
was  executed  as  an  escrow  to  be  delivered  to 
the  jointress  upon  her  securing  the  60/.  annuity, 
which  condition  she  had  not  fulfilled : — Held, 
that  the  appointment  was  invalid  as  being  a 
fraud  upon  the  persons  entitled  to  the  settled 
property  in  remainder  after  the  death  of  the 
tenant  for  life.  Whelan  v.  Palmer,  39  Ch.  D. 
648  ;  57  L.  J.,  Ch.  784  ;  58  L.  T.  937  ;  36  W.  B. 
587— Kekewich,  J. 

The  donee  of  a  power  of  appointment  amongst 
his  children,  exercisable  by  deed  or  will,  having 
one  son  and  one  daughter,  by  will  in  1862  made 
a  valid  appointment  to  the  daughter  of  the  whole 
fund  subject  to  the  power.  By  a  French  settle- 
ment, not  under  seal,  made  in  1866,  upon  the 
marriage  of  his  daughter,  he  purported  to  appoint 
the  whole  fund  to  her,  reserving  to  himself  the 
power  of  disposing  of  a  life  interest  in  a  portion 
of  the  fund  in  favour  of  his  second  wife ;  and 
by  a  holograph  codicil,  dated  in  1871,  made 
in  France,  and  unattested,  after  reciting  an 
arrangement  made  when  his  daughter  was  mar- 
ried between  himself,  his  daughter  and  her 
intended  husband,  that  such  second  wife  should 
have  such  provision,  he  in  effect  appointed  that 
if  his  daughter  and  her  husband  should  carry  oat 
this  arrangement  they  should  have  the  whole  of 
the  fund.  This  codicil  was  admitted  to  probate 
under  24  &  25  Vict,  c  114  :— Held,  that  though 
admitted  to  probate,  the  codicil  was  invalid  as  a 
testamentary  exercise  of  the  power,  and  did  not 
revoke  the  appointment  by  will,  that  the 
appointments  by  the  settlement  and  codicil 
were  frauds  upon  the  power,  and  that  the 
arrangements  made  by  the  settlement  and 
codicil  involved  a  threat  to  revoke  the  will  if 
they  were  not  carried  into  effect,  and  that  con- 
sequently the  will,  being  an  ambulatory  instru- 
ment, was  vitiated  and  became  a  fraud  upon  the 
power,  although  at  the  date  of  its  execution  it 
was  not  open  to  objection.  Kirwan*s  Trust*,  A 
re,  25  Ch.  D.  373  ;  52  L.  J.,  Ch.  952 ;  49  JL  T. 
292  ;  32  W.  H.  581— Kay,  J. 


2101 


WILL — Construction. 


2102 


ill.    To  what  Persons. 


Xemainder  to  Hext-of-Kin.] — An  appointment 
to  an  object  of  a  power  for  life  with  remainder 
to  his  next-of-kin  will  take  effect  if  at  the  death 
of  the  tenant  for  life  his  next-of-kin  are  objects 
of  the  power.  Coulman,  In  re,  Munhy  v.  Ross, 
30  Ch.  D.  186 ;  66  L.  J.,  Ch.  34 ;  53  L.  T.  560— 
Pearson,  J. 

Trustees  for  Benefit  of  Son.] — Property  was 
assigned  to  trustees  on  trust  for  S.  for  life,  and 
after  her  death  to  such  of  her  issue  as  she  should 
by  will  appoint.  S.  by  her  will  appointed  the 
property  to  two  trustees  in  trust  to  pay  the 
income  to  her  son  : — Held,  that  S.  had  power  to 
appoint  the  property  to  trustees  for  her  son. 
Seatney  v.  Zomer,  29  Ch.  D.  535  ;  54  L.  J., 
Ch.  558  ;  52  L.  T.  747  ;  83  W.  E.  633— 
North,  J. 

Child  leaving  Issue— (apse— Wills  Act,  s.  88.  ] 
—The  33rd  section  of  the  Wills  Act,  which 
•enacts  that  a  devise  or  bequest  to  a  child  of 
the  testator  who  dies  in  the  lifetime  of  the 
testator  leaving  issue  shall  not  lapse,  does 
not  apply  to  an  appointment  under  a  special 
jwwer.  Freme  v.  Clement  (18  Ch.  D.  499)  dis- 
approved.   Uolyland  v.  Lewin,  26  Ch.  D.  266  ; 

53  L.  J.,  Ch.  530 ;  51  L.  T.  14  ;  32  W.  R.  443— 
C.A. 

"Issue,"  Meaning  of.] — The  word  "issue" 
may  bear  different  interpretations  in  different 
parts  of  the  same  deed,  and  it  is  not  an  inflexible 
role  that,  because  the  word  evidently  means 
"children,"  in  the  proper  sense  of  the  term, 
in  one  part  of  a  settlement,  it  must  be  neces- 
sarily so  construed  in  another  part  of  the 
document.  Warren1*  Trusts,  In  re,  26  Ch.  D. 
208  ;  53  L.  J.,  Ch.  787  ;  50  L.  T.  454  ;  32  W.  R. 
641 — Pearson,  J. 

To  Issue— Gift  over  in  Default  of  Appoint- 
ment to  "sneh  Issue."] — The  testatrix  gave  all 
her  property  to  trustees,  upon  trust  to  pay  the 
income  to  such  child  or  children  of  hers  as 
should  survive  her  during  their  lives,  in  equal 
shares  if  more  than  one,  and  in  case  of  the 
death  of  any  of  her  children  in  her  lifetime  or 
afterwards  she  directed  that  the  issue  of  such 
•child,  or  any  one  or  more  of  them,  should  take 
his,  her,  or  their  parent's  share  in  6uch  shares 
and  proportions  as  his,  her,  or  their  parent  should 
by  will  appoint ;  "  in  default  of  such  appoint- 
ment such  issue  to  take  equally  as  tenants  in 
common."  The  testatrix  had  several  children, 
all  of  whom  survived  her,  and  two  of  whom 
afterwards  died  without  exercising  the  power 
and  having  had  children,  some  of  whom  pre- 
deceased their  respective  parents : — Held,  that 
the  words  "  such  issue "  meant  all  the  issue  of 
•children  of  the  testatrix  to  whom  an  appoint- 
ment might  have  been  made,  and  therefore  that 
all  the  grandchildren  of  the  testatrix  were 
entitled  to  share  whether  they  had  survived 
their  respective  parents  or  not.  Hutchinson, 
In  re,  Alexander  v.  Jolley,  55  L.  J.,  Ch.  574  ; 

54  L.  T.  527— Kay,  J. 

Remoteness —  Time  now  Calculated.]  —  A 
married  woman  exercised  a  general  testamentary 
power  : — Held,  that  time  under  the  rule  against 
perpetuities  ran  from  her  death,  and  not  from 


the  date  of  the  instrument  creating  the  power. 
PowelVs  Trusts,  In  re  (39  L.  J.,  Ch.  188),  dis- 
cussed and  not  followed.  Rous  v.  Jackson,  29 
Ch.  D.  521  ;  54  L.  J.,  Ch.  732  ;  52  L.  T.  733  ;  33 
W.  R.  773— Chitty,  J. 

A  testator  devised  an  estate  to  his  daughter 
for  life,  with  a  power  of  appointment  to  be 
exercised  by  her  by  will ;  she  appointed  to  her 
only  child  for  life  with  remainder  to  the  child's 
children  :  —  Held,  that  time  under  the  rule 
against  perpetuities  ran  from  the  date  of  the 
daughter's  death,  and  not  from  the  date  of  the 
testator's  will  conferring  the  power.  Rous  v. 
Jackson  (29  Ch.  D.  521)  followed.  PowelVs 
Trusts,  In  re  (39  L.  J.,  Ch.  188),  disapproved. 
Flower,  In  re,  Edmonds  v.  Edmonds,  56  L.  J., 
Ch.  200;  53  L.  T.  717;  34  W.  R.  149— 
North,  J. 

A  testator,  who  had  under  a  settlement  a 
power  of  appointment  over  leasehold  and  other 
personal  estate  among  his  children  or  grand- 
children or  other  issue,  by  his  will,  gave  a  moiety 
of  the  property  on  trust  for  his  daughters  who 
should  survive  him,  and  attain  twenty-four,  in 
equal  shares.  The  testator's  youngest  daughter 
was  more  than  three  years  old  at  the  time  of  his 
death  : — Held,  that  the  appointment  was  not 
void  for  remoteness.  Von  Brockdorff  v. 
Malcolm,  30  Ch.  D.  172  ;  55  L.  J.,  Ch.  121  ;  53 
L.  T.  263  ;  33  W.  R.  934— Pearson,  J. 

By  an  ante-nuptial  settlement,  dated  1834,  to 
which  the  wife  (an  infant)  was  party,  her 
parents  agreed,  and  the  husband  covenanted, 
that  the  husband  and  wife  would,  on  her 
attaining  twenty-one,  convey  her  real  estate  to 
the  uses  of  the  settlement.  In  1836  the  wife, 
having  attained  twenty-one,  by  deed  duly 
acknowledged,  in  which  the  husband  concurred, 
granted  the  real  estate  to  the  uses  of  the  settle- 
ment : — Held,  for  the  purpose  of  testing  the 
validity  of  the  exercise  of  a  power,  with 
reference  to  the  rule  against  perpetuity,  that 
the  real  estate  was  settled  in  1834.  Cooke  v. 
Cooke,  infra. 

Severable  Proviso.] — A  marriage  settlement 
gave  the  intended  husband  and  wife  power  by 
deed  or  the  survivor  by  deed  or  will,  to 
appoint  among  children.  The  husband  sur- 
vived, and  by  will  appointed  the  settled 
property  among  his  three  daughters  equally, 
with  a  proviso  that  if  at  the  time  of  his 
death  any  of  them  should  be  unmarried,  her 
share  should  be  held  on  trust  for  her  for  life,  and 
after  her  decease,  in  case  she  should  die  leaving 
issue,  as  she  should  appoint,  and  in  default  of 
appointment,  or  in  case  she  should  not  leave 
issue,  on  corresponding  trusts  in  favour  of  his 
other  children :— Held,  that  the  trusts  of  the 
proviso  were  inseparable  and  totally  void  for 
remoteness,  and  that  the  absolute  gift  in  favour 
of  a  daughter  unmarried  at  the  death  of  the 
testator  prevailed.  Cooke  v.  Cooke,  38  Ch.  D. 
202  ;  69  L.  T.  693  ;  36  W.  R.  756— North,  J. 

lv.  Estate  by  Implication  in  Default. 

A  testator  left  to  his  three  nieces,  M.,  E.,  and 
R.,  the  entirety  of  his  property  of  every  kind 
whatsoever  during  their  joint  and  several  lives, 
but  subject  to  legacies,  and  added — "  In  leaving 
my  property  to  my  three  nieces  and  co-heirs  it 
is  my  wish  that  if  my  grand-nephew  J.  conducts 
himself  to  their  satisfaction  they  shall  leave  him 


2103 


WILL — Construction. 


210* 


the  property  I  now  leave  to  them."  J.  died  in 
the  lifetime  of  two  of  the  nieces,  M.  and  E.,  who 
both  died  intestate :— Held,  that  J.,  if  he  had 
survived  all  the  tenants  for  life,  wonld  have 
taken  an  estate  by  implication  in  default  of 
appointment,  but  not  having  survived  them  that 
there  was  an  intestacy  as  to  the  real  estate, 
which  descended  to  the  heir  of  the  testator. 
The  decisions  on  simple  powers  of  appointment, 
powers  coupled  with  a  trust  and  gins  by  impli- 
cation in  default  of  appointment  distinguished 
and  reviewed.  Moore  v.  Ffolliot,  19  L,  R.,  Ir. 
499— M.  R. 

Leaseholds  were  assigned  to  trustees  upon 
trust,  after  the  decease  of  the  survivor  of  A., 
and  B.  his  wife,  to  assign  the  same  unto  and 
amongst  such  of  the  children  of  the  said  A.,  and 
B.  his  wife,  then  living,  in  such  manner,  shares, 
times,  and  proportions  as  the  said  A.,  and  B.  his 
wife,  jointly,  or  the  survivor  of  them  separately, 
should  by  any  writing  appoint,  and  in  case  there 
should  be  no  such  child  or  children,  then  upon 
trust  for  C.  for  life,  and  after  his  decease  upon 
trust  to  assign  the  same  unto  and  amongst  such 
of  his  children,  and  in  such  manner,  shares, 
times,  and  proportions,  as  he  should  by  any 
writing  appoint.  A.  and  B.  died  without  issue, 
B.  in  1876,  A.  in  March,  1880.  C.  died  in  1863, 
having  had  ten  children,  of  whom  some  prede- 
ceased him,  and  some  died  between  his  death 
and  the  death  of  A.,  and  the  rest  survived  A. : — 
Held,  that  all  the  children  of  C.  took,  as  tenants 
in  common,  in  equal  shares.  Wilson  v.  JDuguid, 
24  Ch.  D.  244  ;  53  L.  J.,  Ch.  62  ;  49  L.  T.  124  ; 
31  W.  R.  946— Chitty,  J. 

A  power  given  by  will  to  a  tenant  for  life  to 
appoint  to  his  children,  with  an  express  limi- 
tation over  "  in  default  of  such  appointment," 
cannot  be  construed  as  conferring  upon  the 
children  any  estate  or  interest  in  default  of  the 
exercise  of  the  power  of  appointment,  at  least 
in  the  absence  of  provisions  extending  the  opera- 
tion of  the  power.  Jefferys'  Trusts,  In  re  (14 
L.  R.,  Eq.  136),  dissented  from  as  to  this  point, 
by  Lord  Esher,  M.R.  Bradley  v.  Cartwright 
(2  L.  R.,  C.  P.  511)  explained  and  distinguished, 
by  Cotton,  L.  J.  Richardson  v.  Harrison,  16 
Q.  B.  D.  85  ;  55  L.  J.,  Q.  B.  58  ;  54  L.  T.  456— 
C.A. 

v.  Other  Matters  relating1  to. 

Donee's  Intention  to  make  Property  her  Own.] 

— A  testatrix  exercised  a  general  power  of  ap- 
pointment, and  appointed  an  executor,  who  was 
the  sole  trustee  of  the  property : — Held,  upon 
the  construction  of  the  will,  that  she  had  not 
made  the  property  the  subject  of  the  power  her 
own  for  all  purposes,  and  that  the  gift  over  in 
default  of  appointment  took  effect.    The  ap- 

§  ointment  of  an  executor  is  not  sufficient  evi- 
ence  of  intention  to  make  the  property  the 
subject  of  the  power  assets  for  all  purposes. 
Thurston,  In  re,  Thurston  v.  Evans,  32  Ch.  D. 
608  ;  56  L.  J.,  Ch.  664  ;  54  L.  T.  833  ;  34  W.  R. 
628— Chitty,  J. 

—  Donee  unaware  of  Power.] — A  married 
woman  being  (although  unaware  of  it)  the  donee 
of  a  general  power  of  appointment  by  deed  or 
will  over  policy  moneys  payable  upon  her  own 
death,  concurred  with  her  husband  in  settling 
certain  family  estates  by  an  indenture  which 
treated  the  policy  moneys  as  the  husband's  own 


property,  and  settled  them  also.  Her  concurrence 
in  the  settlement  was  for  a  purpose  entirely  un- 
connected with  the  policy  moneys,  and  under  it 
she  took  a  life  interest  in  remainder,  after  her 
husband's  death,  in  the  estates,  but  no  interest 
in  the  policy  moneys.  She  survived  her  husband, 
received  in  respect  of  her  life  interest  in  the 
estates  sums  exceeding  the  amount  of  the  policy 
moneys,  and  died,  having  by  her  will  given  all 
property  over  which  she  had  any  disposing 
power  to  certain  beneficiaries :  —Held,  that  hy 
her  will  she  had  exercised  her  general  power  so 
as  to  make  the  policy  moneys  her  own  assets ; 
and  that,  having  taken  under  the  settlement 
benefits  exceeding  the  value  of  the  policy  moneys 
she  could  not  by  the  exercise  of  her  power  take 
the  policy  moneys  out  of  the  settlement,  with- 
out making  good  to  the  settlement  beneficiaries 
an  equal  amount  from  her  own  estate ;  and 
accordingly  that  the  policy  moneys  must  be 
paid  to  the  settlement  trustees.  (rriffith-Bos- 
eawen  v.  Scott,  26  Ch.  D.  358  ;  53  L.  J.,  Ch.  571 ; 
50  L.  T.  386  ;  32  W.  R.  580— Kay,  J. 

Semble,  the  concurrence  of  the  donee  of  the 
power  in  the  deed  of  settlement,  for  purposes- 
unconnected  with  the  policy  moneys  subject  to 
the  power,  and  in  ignorance  of  its  existence, 
could  not  operate  as  an  exercise  of  the  power,, 
although  the  deed  purported  to  pass  the  policy 
moneys.    lb. 

Subject  to  Charge.] — R.,  having  a  testamentary 
power  to  appoint  land  to  his  male  issue  in  such 
shares  ana  proportions  as  he  should  direct, 
devised  certain  of  the  lands  to  his  eldest  son, 
J.  (who  survived  him),  *'  to  be  chargeable  with 
2,0007.  borrowed  for  J.'s  sole  use,"  and  which  JL 
in  a  subsequent  part  of  his  will  stated  that  he 
had  paid.  R.  by  his  will  gave  benefits  out  of 
his  own  property  to  all  the  objects  of  the  power, 
and  directed  that  certain  portions  of  his  estates 
should  be  sold  or  charged  as  by  his  will  provided, 
and  the  proceeds  applied,  together  with  the 
2,000/.  borrowed  for  his  son  J.,  and  which  he 
stated  he  had  paid,  to  form  a  fund  for  payment 
of  his  debts  and  legacies  : — Held,  that  the  devise 
to  J.,  subject  to  the  2,000/.  was  not  the  case  of 
a  gift  absolute,  with  a  superadded  attempt  to 
modify  it,  within  the  principle  of  Carter  v. 
Bowles  (2  Russ.  &  Myl.  301),  but  the  gift  of  a 
certain  portion  only  of  the  interest  in  the  lands, 
the  deduction  of  the  2,000/.  charge  being  neces- 
sarily incorporated  with  the  gift,  and  that, 
therefore,  J.  took  the  lands  subject  to  the 
charge  of  2,000/.  White  v.  White  (22  Ch.  D. 
555)  followed.  Xing  v.  King,  13  L.  R.,  Ir.  531 
— V.-C. 

By  what  Law  governed.]— On  the  20th  of  De- 
cember, 1881,  prior  to  the  marriage  (solemniied 
in  England)  of  a  domiciled  Englishwoman  (a 
widow)  with  a  domiciled  Spaniard,  real  estate  in 
England  of  the  intended  wife  was  vested  by  her 
in  a  trustee  in  fee,  to  such  uses  as  the  intended 
wife  should  by  deed  or  will  appoint,  and,  subject 
thereto,  to  the  use  of  the  intended  wife,  for  her 
separate  use.  The  settlement  was  made  with  the 
approbation  of  the  intended  husband,  and  the 
deed  contained  a  statement  that  this  approbation 
was  given  in  consideration  of  a  renunciation  the 
same  day  executed  by  the  intended  wife  of  any 
rights  which  she  would  otherwise  have  acquired 
,  by  her  marriage  in  respect  of  the  property  of  the 
'  intended  husband  according  to  the  law  of  Spain- 


5105 


WILL — Construction. 


2106 


The  deed  also  contained  a  declaration  that  it  was 
to  take  effect  and  be  construed  according  to  the 
law  of  England.  The  marriage  was  solemnized 
-on  the  next  day.  On  the  23rd  of  February, 
1882,  the  wife  (being  then  domiciled  in  Spain) 
executed  a  deed-poll,  in  accordance  with  the 
provisions  of  the  settlement,  whereby  she,  in 
-exercise  of  the  power  given  to  her  by  the  settle- 
ment, appointed  the  real  estate  to  the  use  of 
herself  in  fee  for  her  separate  use.  By  another 
•deed  executed  the  same  day,  to  which  the  hus- 
band was  a  party,  she,  with  the  consent  of  the 
husband,  appointed  and  conveyed,  and  the  hus- 
band conveyed,  the  real  estate  to  the  use  of  a 
trustee  in  fee,  upon  trust  for  sale,  and  out  of  the 
proceeds  of  sale  to  pay  certain  specified  debts, 
-and,  subject  thereto,  in  trust  for  such  person  or 
persons  as  the  wife  "  shall  at  any  time  or  times 
hereafter  by  any  writing  or  writings  from  time 
to  time  appoint/1  and  in  default  of  any  appoint- 
ment and  subject  thereto,  in  trust  for  the  wife 
■absolutely  for  her  separate  use.  Under  this  deed 
the  trustee  sold  the  property,  and  out  of  the  pro- 
ceeds of  sale  paid  the  specified  debts,  and  there 
then  remained  a  surplus  in  his  hands.  The  wife 
died  in  June,  1882,  having  by  a  will  executed 
immediately  after  her  marriage,  and  which  pur- 
ported to  be  made  in  exercise  of  the  powers 
reserved  to  her  by  her  marriage  settlement,  and 
of  all  other  powers  enabling  her,  directed, 
appointed  and  declared  that  the  real  and  per- 
sonal estate  over  which  she  had  any  disposing 
power  at  the  time  of  her  death  should  be  held 
and  applied  in  the  payment  of  certain  legacies 
and  annuities,  and,  subject  thereto,  she  gave 
four-fifths  of  her  real  and  personal  estate,  in 
case  she  should  leave  no  children,  to  her  husband 
absolutely  ;  and  she  gave  the  remaining  one- 
fifth  of  her  property,  charged  with  the  before- 
mentioned  annuities  and  legacies,  to  her  brothers 
and  sisters,  or  to  the  children  per  stirpes  of  such 
of  them  as  should  die  before  her  leaving  chil- 
dren. The  testatrix  died  without  issue.  The 
husband  survived  her.  According  to  the  law  of 
Spain,  under  such  circumstances,  two- thirds  of 
her  property  belonged  to  her  father  and  mother, 
notwithstanding  that  she  had  left  a  will : — Held, 
that  whether  the  will  was  or  was  not  a  good 
exercise  of  the  power  reserved  by  the  deed  of 
February,  1882,  it  was  a  valid  testamentary  dis- 
position by  virtue  of  the  limitation  in  default  of 
appointment  to  the  separate  use  of  the  testatrix  ; 
that  it  took  effect  according  to  English  law,  and 
that  the  legatees  named  in  it  (including  the 
husband)  were  entitled  to  the  benefits  given  to 
them  by  it.  Hernando,  In  re,  Hernando  v. 
Sawtell,  27  Ch.  D.  284  ;  53  L.  J.,  Ch.  865  ;  51  L. 
T.  117 ;  33  W.  R.  252— Pearson,  J. 

Semble,  that  on  the  authority  of  Boyes  v. 
Cook  (14  Ch.  D.  53)  the  will  was  a  valid  exercise 
of  the  power  of  appointment  given  by  the  deed 
of  February,  1882.    lb. 

Future  Gift  of  Residue  —  Power  to  grant 
Jointure.] — A  testatrix,  by  her  will,  after  re- 
citing that  she  was  entitled  under  the  marriage 
settlement  of  her  granddaughter  to  a  fund, 
subject  to  the  life  interest  of  A.,  gave  all 
her  "reversionary  interest"  in  the  fund  to 
trustees,  upon  trust,  on  the  determination  of  the 
interest  of  A.,  to  stand  possessed  thereof  upon 
the  like  trusts,  and  with  the  same  powers,  so 
far  as  applicable,  for  any  issue  of  A.  by  any 
future  wife  as  were  declared  in  the  settlement 


for  any  issue  of  A.  by  his  late  wife,  the  testatrix's 
said  granddaughter.  And  the  testatrix  declared 
that  A.  might  by  will  or  codicil  appoint  that  the 
income  of  the  fund  should  be  paid  to  any  future 
wife  of  his  during  her  life  or  for  any  less  period, 
and  that,  in  default  of  issue  attaining  a  vested 
interest,  the  fund  should  be  held  upon  trust  for 
A.  absolutely ;  and  the  testatrix  gave  the  residue 
of  her  property  in  trust  to  A.  absolutely.  By  a 
codicil,  the  testatrix,  in  lieu  of  the  trusts  in  her 
will  as  to  residuary  estate,  declared  that  the 
trustees  should  pay  the  income  thereof  to  B.  for 
life,  and  after  his  death  should  hold  the  same 
upon  the  like  trusts  in  favour  of  A.  and  his 
issue,  and  with  the  same  powers  in  all  respects  as 
were  contained  in  her  will  with  reference  to  her 
reversionary  interest  under  the  settlement,  and 
as  if  the  same  were  repeated  in  the  codicil.  A. 
married  a  second  wife.  B.  subsequently  died. 
A.  then  claimed  the  income  of  the  testatrix's  re- 
siduary estate  accrued  since  the  death  of  B.  The 
court  decided  that,  although  there  was  no  express 
disposition  of  the  income  after  A.'s  death  during 
the  remainder  of  his  life,  such  income  would 
nevertheless  belong  to  the  parties  who  might 
eventually  become  entitled  to  the  corpus,  since  a 
future  gift  of  residue  carried  with  it  previous 
income  not  expressly  disposed  of,  and  that  it 
must  therefore  be  accumulated  for  the  possible 
children  of  A.  by  his  then  marriage,  who  might 
attain  a  vested  interest  therein.  Shortly  after- 
wards A.  appointed  the  income  of  the  testatrix's 
residuary  estate  to  his  wife  for  life  : — Held,  that 
the  power  given  by  the  will  to  appoint  to  a  wife 
was  in  the  nature  of  a  power  to  grant  a  jointure, 
that  the  power  given  by  the  codicil  with  regard 
to  the  residue  was  of  the  same  nature  ;  and  that 
therefore  the  appointment  would  only  take 
effect  after  A.'s  death.  Lindo,  In  re,  Ask'ui  v. 
Ferguson,  59  L.  T.  462— Kay,  J. 

Testamentary  Expenses— Probate  and  Legacy 
Duty — Payment  out  of  what  Fund.] — Testatrix, 
in  exercise  of  a  general  power  of  appointment, 
made  several  appointments  of  (in  each  case) 
"so  much  and  such  part  of1'  the  said  trust 
funds  as  should  be  of  the  "clear"  value  of  a 
specified  sum  of  money  in  each  case,  and  lastly 
made  an  appointment  of  "all  the  residue"  of 
the  said  trust  funds.  The  will  disposed  of  no 
other  property  except  that  subject  to  the  power, 
and  contained  no  direction  for  payment  of 
testamentary  expenses,  probate  or  legacy  duty  : 
— Held,  that  the  testamentary  expenses  and 
probate  duty,  and  the  legacy  duty  on  the 
specified  portions  of  the  trust  funds,  must  be 
paid  out  of  that  part  of  the  trust  funds  which 
was  lastly  appointed  as  residue.  Carrie,  In  ret 
Bjorkman  v.  Kimberley  {Lord),  57  L.  J.,  Ch. 
743  ;  59  L.  T.  200  ;  36  W.  R.  752— Kay,  J. 


i.  Election. 

Doctrine  of  Compensation.] — The  engrafted 
doctrine  of  compensation  does  not  apply  to  the 
case  of  a  person  electing  to  take  under  the  in- 
strument which  gives  rise  to  the  election. 
Wilsan  v.  Townshend  (Lord)  (2  Yes.  693),  dis- 
cussed and  not  followed.  Chesham  {Lord),  In 
re,  Cavendish  v.  Daere,  31  Ch.  D.  466  ;  55  L.  J., 
Ch.  401 ;  64  L.  T.  164  ;  34  W.  R.  321— Chitty,  J. 


1 


2107 


WILL — Construction. 


2108 


Bequest  of  Heirlooms  In  disregard  of 

Settlement.]— A  testator,  who  died  in  1882,  by 
his  will  dated  in  1878,  gave  certain  chattels  upon 
trust  for  sale,  for  the  benefit  of  his  two 
younger  sons,  and  the  residue  of  his  estate  to 
his  eldest  son,  0.  The  chattels  so  bequeathed 
by  the  will  were,  in  fact,  heirlooms  settled 
by  a  deed  dated  in  1877,  upon  trust  to  go  and 
be  held  with  a  certain  mansion-house,  of  which 
G.  was  tenant  for  life : — Held,  upon  the  ques- 
tions whether  C.  having  elected  to  take  under 
the  will,  was  or  was  not  put  to  his  election 
between  the  benefits  given  to  him  by  the  will 
and  the  chattels  which  were  bequeathed  by  the 
same  will,  and  whether  he  ought  not  to  make 
compensation  to  his  younger  brothers,  that  he 
was  not  bound  to  make  any  compensation  out  of 
his  legacy  to  his  younger  brothers,  that  he  had 
no  interest  in  the  chattels  apart  from  the 
mansion-house,  which  he  could  make  over  for 
their  benefit,  and  that  no  case  of  election 
arose,    lb. 


Stock  belonging  to  Wife  in  Joint  JTames 


— Bequest  by  Husband  of  life  Interest  to  Wife.] 
— A  testator  after  making  certain  bequests,  and 
giving  his  wife  a  legacy  of  3,000/.,  gave  all  the 
residue  of  his  estate  and  effects,  "including 
therein  the  money  in  my  banking  account  in  the 
Bank  of  England,  and  money  in  the  public 
funds,  and  whether  standing  in  my  name  alone, 
or  jointly  with  my  said  wife,"  and  all  his  shares 
and  interest  in  any  public  company,  and  other 
effects,  to  his  wife  for  her  life,  and  after  her 
decease  to  other  persons.  At  the  date  of  the 
will,  and  at  the  time  of  the  testator's  death, 
there  was  only  one  sum  (viz.,  7,1101.  Consols) 
standing  in  the  joint  names  of  himself  and  his 
wife.  This  stock  had  by  a  previous  will  been 
bequeathed  to  the  wife,  subject  to  two  executory 
gifts  over,  which  did  not  take  effect,  one  in 
favour  of  her  children,  if  any,  and  the  other  of 
her  husband,  if  he  survived.  The  stock  had  been 
received  by  the  testator,  and  by  him  transferred 
into  their  joint  names.  After  the  testator's  death 
his  wife  received  the  income  of  all  the  residuary 
estate,  including  the  7,1102.  Consols,  but  made 
no  attempt  to  deal  with  the  stock  as  her  own 
property.  There  was,  however,  no  evidence  to 
show  that  she  knew  what  her  rights  were.  She 
subsequently  died,  and  her  representativesclaimed 
the  stock.  The  question  was,  whether  they  were 
bound,  under  the  doctrine  of  election,  to  com- 
pensate the  residuary  legatees,  who  would  be 
disappointed  by  their  taking  the  stock,  to  any 
and  what  extent: — Held,  that  the  testator  in- 
tended the  stock  to  pass,  and  was  not  dealing 
only  with  his  right  of  survivorship ;  that  he 
affected  to  give  property  belonging  to  his  wife, 
and  consequently  the  doctrine  of  election  applied 
both  to  the  wife  and  her  representatives  claim- 
ing under  her  ;  and  that  her  representatives 
could  only  take  the  stock  upon  the  terms  of  com- 
pensating the  disappointed  residuary  legatees  to 
the  extent  of  the  legacy  of  3,000/.,  and  of  the 
amount  actually  received  by  the  wife  in  respect 
of  her  life  interest  in  the  testator's  own  pro- 
perty. Carpenter,  In  re,  Carpenter  v.  Disney, 
51  L.  T.  773— Kay,  J. 

Bevoeation  by  Will  of  Settlement  containing 
no  Bower  of  Bevooation.]— Where  a  testator, 
after  making  a  voluntary  settlement  containing 
no  power  of  revocation,  by  his  will  revoked,  set 


aside,  and  avoided  all  other  wills,  settlements, 
and  agreements  for  settlements  which  he  had  at 
any  time  theretofore  made  and  executed:— Held,, 
that  no  case  of  election  was  raised.  Booker,  1% 
re.  Booker  v.  Booker,  54  L.  T.  239 ;  34  W.  B. 
346— Chitty,  J. 

Bequest  subject  to  Payment  of  Debts— In- 
adequacy  of  Estate.] — A  testator  gave  all  his 
interest  in  certain  leasehold  farms  mentioned  in 
his  will,  and  all  the  stock  of  every  description 
thereon,  and  also  all  moneys  due  to  mm,  to  his  son, 
subject  nevertheless  to  the  payment  of  all  his 
debts,  funeral  and  testamentary  expenses.  The 
testator's  son  continued  in  possession  and  re- 
ceipt of  the  profits  of  the  farms  for  about  three 
years,  when  the  leases  of  the  farms  and  the  stock 
thereon  were  disposed  of.  The  testator's  estate 
was  very  involved,  and  the  liabilities  to  be  dis- 
charged by  the  son,  under  the  terms  of  the  will, 
and  as  a  condition  of  his  accepting  the  bequest, 
greatly  exceeded  the  value  of  the  bequest:— 
Held,  that  the  son  must  be  deemed  to  hare 
elected  to  accept  the  bequest  contained  in  the 
will,  subject  to  the  payment  of  debts,  funeral 
and  testamentary  expenses ;  but  he  was  not 
personally  liable  to  pay  the  same.  Gtnotof,  h 
re,  Soueh  v.  Cowley,  53  L.  T.  494— Kay,  J. 

Conversion — Trust  tor  Sale.]— A  testator  de- 
vised and  bequeathed  real  and  personal  estate 
to  trustees  in  trust  for  his  wife  for  life,  and 
after  her  death,  as  to  one  freehold  house, 
upon  trust  for  one  of  his  sons  for  life,  as  to 
another  freehold  house  upon  trust  for  his 
daughter  for  life,  and  as  to  a  third  freehold  house 
upon  trust  for  another  son  for  life,  and  after 
their  respective  deaths  to  their  issue  respectr?elTr 
and  after  the  respective  deaths  of  any  without 
issue  he  directed  his  trustees  to  sell  the  house  of 
such  child  and  to  pay  the  proceeds  of  sale  to  the 
survivors  or  the  survivor  of  his  three  chfldreii,. 
and  until  sale  to  pay  the  rents  to  the  same 
persons  or  person,  and  he  gave  his  residiarr 
real  and  personal  estate  to  such  of  his  three 
children  as  should  survive  the  widow.  One  of 
the  sons  predeceased  the  widow,  a  bachelor.  The 
daughter  survived  her  and  died  intestate  in  1877, 
and  all  her  property  passed  to  her  surviving* 
brother  as  her  sole  next  of  kin.  The  houses 
were  let  to  weekly  tenants,  and  the  surviving 
son,  since  1877,  received  all  the  rents.  He  died 
in  1885,  and  shortly  before  his  death  he  handed 
the  title-deeds  of  the  houses  to  a  solicitor,  direct- 
ing that  a  gift  of  all  his  property  should  bemads 
to  a  niece,  but  he  died  before  a  conveyance  could 
be  executed.  The  question  then  arose  whether 
the  will  had  effected  a  conversion  of  the  reattv, 
and,  if  so,  whether  the  surviving  son  had  elected 
to  take  the  property  as  real  estate : — Held,  that 
there  had  been  an  out-and-out  conversion,  and 
that  the  son  must  be  taken  to  have  elected  to 
take  the  houses  as  real  estate.  Potter  v.  Dudeujf* 
66L.T.  395— Chitty,  J. 

Beal  and  Personal  Sstate— Seal  Watt 

in  Lease  with  Option  to  purchase  Bevsrsiaa.]-- 

A  testator  by  his  will  gave  bis  real  estate  sad 
the  residue  of  his  personal  estate  to  trustees,  on 
trust  to  sell  his  real  estate,  and  to  convert  sad 
get  in  his  residuary  personal  estate,  and  to  stand 
possessed  of  the  moneys  arising  from  both,  on 
trust  to  invest  the  same,  and  to  pay  tfce  teame 
to  his  wife,  during  her  life  or  widowhood,  sod, 


2109 


WILL — Construction. 


2110 


after  her  death  or  second  marriage,  upon  truBt  to 
divide  the  trust  funds  equally  between  such  of 
his  children  as  should  be  living  at  his  death, 
and  the  issue  of  such  of  them  as  might  be  then 
dead.  The  testator  died  in  1869.  The  wife  and 
two  infant  children  survived  him.  There  was 
no  issue  of  any  deceased  child.  Both  the  chil- 
dren died  before  the  wife  unmarried  and  intes- 
tate, the  one  who  died  last  dying  in  1876.  The 
wife  did  not  marry  again,  and  she  died  in  1885 
intestate.  The  only  real  estate  of  the  testator 
was  a  house,  of  which  he  had  in  1869  agreed  to 
grant  a  lease  for  twenty  years,  with  an  option 
to  the  tenant  to  purchase  the  reversion  at  any 
time  during  the  term.  At  the  death  of  the  widow 
this  option  had  not  been  exercised,  and  the  houBe 
had  not  been  sold  by  the  trustees.  After  the 
deaths  of  the  children  the  widow  continued  in 
receipt  of  the  rent  of  the  house : — Held,  that,  by 
reason  of  the  tenant's  option  to  purchase  the 
house,  the  widow's  continued  receipt  of  the  rent 
was  no  evidence  of  an  election  by  her  to  take 
the  property  as  real  estate,  and  that  on  her  death 
it  descended  as  personalty  to  her  next  of  kin. 
Gordon,  In  re  (6  Ch.  D.  531),  distinguished. 
Lewis,  In  re,  Fttxwell  v.  Lewis,  30  Ch.  D.  654  ; 
55  L.  J.,  Ch.  232  ;  53  L.  T.  387  ;  34  W.  R.  150— 
Pearson,  J. 

Invalid  Devise  of  Land— Bequest  of  Snares.] 
— A  married  woman  who  was  entitled  to  some 
shares  in  a  colliery  for  life,  for  her  separate  use, 
with  a  power  of  appointment  by  will,  and  also  to 
real  estate  in  fee  simple  not  for  her  separate  use, 
by  her  will,  made  in  February,  1880,  appointed 
the  shares  in  favour  of  her  heir  and  other  chil- 
dren, and  purported  to  devise  the  real  estate 
away  from  the  heir.  She  died  in  June,  1880, 
leaving  her  husband  surviving  :— Held,  that  the 
will  being  void  as  to  the  real  estate,  the  heir 
was  not  put  to  his  election  as  between  the  real 
estate  and  his  interest  in  the  colliery.  Be  Burgh 
Lawson,  In  re,  Be  Burgh  Lawson  v.  Be  Burgh 
Lawson,  55  L.  J.,  Ch.  46 ;  53  L.  T.  522  ;  34  W.  R. 
89— Kay,  J. 

Power  of  Appointment — Exercise  of— Non- 
existent Power.]— A  testatrix  entitled  for  life  to 
property  which  in  case  of  her  death  without 
issue  (an  event  which  happened)  went  over  to 
her  brothers  and  sisters,  of  whom  J.  was  one,  by 
her  will,  purporting  to  exercise  a  power,  which 
she  erroneously  supposed  herself  to  possess, 
appointed  the  property  to  a  class  consisting  of 
certain  named  persons  referred  to  in  the  will  as 
objects  of  the  power,  of  whom  J.  was  not  one, 
and  by  a  codicil  gave  to  J.  certain  property  over 
which  she  had  a  free  power  of  disposal : — Held, 
that  J.  was  put  to  his  election  whether  he  would 
take  under  or  against  the  will.  Brooksbank, 
In  re,  Beauclerk  v.  James,  34  Ch.  D.  160 ;  56 
L.  J.,  Ch.  82  ;  55  L.  T.  693  ;  35  W.  R.  101— Kay,  J. 

R.,  having  a  testamentary  power  to  appoint 
land  to  his  male  issue  in  such  shares  and  propor- 
tions as  he  should  direct,  devised  certain  of  the 
lands  to  his  eldest  son,  J.  (who  survived  him), 
"to  be  chargeable  with  2,000/.  borrowed  for 
J.'s  sole  use,"  and  which  R.  in  a  subsequent  part 
of  his  will  stated  that  he  had  paid.  R.  by  his 
will  gave  benefits  out  of  his  own  property  to 
all  the  objects  of  the  power,  and  directed  that 
certain  portions  of  his  estates  should  be  sold  or 
charged  as  by  his  will  provided,  and  the  proceeds 
applied,  together  with  the  2,0001.  borrowed  for 


his  son  J.,  and  which  he  stated  he  had  paid,  to 
form  a  fund  for  payment  of  his  debts  and 
legacies: — Held,  that  the  charge  of  2,000/.  not 
being  well  appointed,  a  case  of  election  arose 
between  the  objects  of  the  power  and  the  persons 
entitled  to  the  general  fund  of  which  R.  intended 
that  the  2,000/.  should  be  part.  King  v.  Xing, 
13  L.  R.,  Ir.  531— V.-C. 

A  testatrix  had,  under  the  will  of  a  brother 
who  had  predeceased  her,  a  power  to  appoint  his 
property  by  will  among  his  nephews  and  nieces, 
and  the  children  or  child  of  deceased  nephews 
and  nieces.  She,  by  her  will,  gave  all  the  real 
and  personal  estate  of  which  she  might  be 
seised  or  possessed  at  the  time  of  her  death, 
or  over  which  she  might  have  any  testa- 
mentary power  of  disposition,  to  trustees,  upon 
trust  for  sale  and  conversion,  and  to  stand 
possessed  of  the  proceeds  (which  she  described 
as  "  my  said  trust  funds ")  upon  trust  to  pay 
costs  and  expenses,  and  to  pay  her  debts  and 
funeral  expenses  and  certain  pecuniary  legacies, 
and  then  upon  trust  as  to  two  one-fourth 
parts  of  her  trust  funds  respectively  for  persona 
who  were  objects  of  the  power ;  and  upon  trust 
as  to  the  other  two  one-fourth  parts  respectively 
for  persons  who  were  not  objects  of  the  power. 
And  she  declared  that,  in  case  of  the  failure  of 
the  trusts  thereinbefore  declared  of  any  of  the 
one-fourth  parts  of  her  trust  funds,  the  one- 
fourth  part,  or  so  much  thereof  of  which  the 
trust  should  fail,  should  be  held  upon  the  trusts 
thereinbefore  declared  of  the  others  or  other  of 
the  fourth  parts  of  which  the  trust  should  not 
fail : — Held,  that  the  testatrix  had  manifested 
an  intention  to  exercise  the  power,  and  that  as 
to  one  moiety  of  the  brother's  property  the 
power  was  well  exercised.  Held,  also,  that  as 
to  the  other  moiety  of  the  brother's  property  the 
appointment  was  invalid,  but  that  Dy  virtue  of 
the  gift "  in  case  of  the  failure  of  any  of  the 
trusts  thereinbefore  declared,"  that  moiety  went 
to  the  persons  to  whom  the  first  moiety  was 
well  appointed,  and  that,  consequently,  no  case 
of  election  arose.  Swinburne,  In  re,  Swinburne 
v.  Pitt,  27  Ch.  D.  696  ;  54  L.  J.,  Ch.  229 ;  33 
W.  R.  394— Pearson,  J. 

Onerous  Property — Power  of  legatee  to 
Refuse.] — A  testator  devised  and  bequeathed  a 
freehold  house  and  the  furniture  and  effects 
therein  on  trust  for  A.  and  R.  for  life.  The 
house  was  subject  to  a  mortgage  for  more  than 
its  value  : — Held,  that  A.  and  B.  were  entitled 
to  the  use  of  the  furniture  without  keeping 
down  the  interest  on  the  mortgagee.  Syer  v. 
Gladstone,  30  Ch.  D.  614;  34  W.  R.  565— 
Pearson,  J. 

A  testatrix  gave  "all  my  real  and  personal 
estate  "  to  trustees  "  upon  trust  at  their  discre- 
tion to  sell  all  such  parts  thereof  as  shall  not 
consist  of  money,"  and  out  of  the  produce  to 
pay  her  debts  and  funeral  and  testamentary 
expenses,  and  invest  the  residue,  "and  shall 
stand  possessed  of  such  real  and  personal  estate, 
moneys,  and  securities  "  upon  trust  "  to  pay  the 
rents,  interest,  and  dividends  and  annual  pro- 
duce thereof"  to  T.  during  her  life,  with  a 
clause  of  forfeiture  on  alienation,  and  after  the 
decease  of  T.  the  testatrix  devised  and  be- 
queathed the  same  to  other  persons.  At  her 
death  she  was  entitled  in  fee  to  the  P.  estate, 
which  was  unincumbered.  Some  time  after  her 
death  a  remainder  in  fee  to  'Which  she  was 


2111 


WILL — Construction . 


2112 


entitled  in  the  B.  estate,  which  was  subject  to 
mortgages  made  by  prior  owners  and  was  oat  of 
repair,  fell  into  possession,  and  its  income  was 
only  sufficient  to  pay  the  interest  on  the  mort- 
gages. The  trustees  took  out  a  summons  for 
directions  as  to  interest  and  repairs.  The  tenant 
for  life  contended  that  she  could  disclaim  the 
B.  estate  : — Held,  that  as  the  P.  and  B.  estates 
were  not  specifically  mentioned,  but  only  formed 
parts  of  one  gift  in  general  terms,  T.  could  not 
■accept  one  and  refuse  the  other.  Guthris  v. 
Walrond  (22  Ch.  D.  573),  and  Syer  v.  Gladstone 
(30  Ch.  D.  61 4),  distinguished.  Hotehkys,  In  re. 
Frelte  v.  Calmady,  32  Ch.  D.  408  ;  55  L.  J.,  Ch. 
546  ;  55  L.  T.  110 ;  34  W.  R.  569— C.  A. 


j.  Mortgages  and  Incumbrances. 

Eealty  contracted  to  be  Purchased— Unpaid 
Purchase-money.] — A  testator  who  had  con- 
tracted to  purchase  real  estate,  and  paid  the 
deposit  money,  by  will  made  in  1881,  specifically 
devised  such  real  estate  to  his  daughter  for  life, 
with  remainder  to  her  children,  without  showing 
any  intention  that  the  purchase-money  should 
be  paid  out  of  his  personal  estate  ;  and  he  died 
without  having  disposed  of  his  personal  estate, 
which  was  rather  less  in  amount  than  the  un- 
paid purchase-money,  and  without  having  com- 
pleted the  purchase  or  paid  any  further  part  of 
the  purchase-money.  After  his  death  an  action 
by  the  vendor  against  the  executor  and  trustee 
of  the  will  for  specific  performance  of  the  con- 
tract was  compromised  by  the  defendant  thereto, 
and  the  contract  was  put  an  end  to  upon  the 
terms  that  the  vendor  should  retain  the  deposit 
money  and  have  his  costs  ;  and  this  compromise 
was  confirmed  by  the  court  by  an  order  made 
by  consent  in  an  administration  action  in  the 
presence  of  the  tenant  for  life  of  the  real  estate 
and  the  trustee,  all  the  remaindermen  being 
infants.  Upon  the  further  consideration  of  the 
administration  action,  the  devisees  contended 
that  they  were  entitled  to  so  much  of  the  per- 
sonal estate  as  was  equivalent  to  the  unpaid 
purchase-money,  upon  the  ground  that  the  pur- 
chase was  a  conversion  by  the  testator  of  his 
personal  estate  to  that  extent,  and  that  Locke 
King's  Acts  had  not  altered  the  law  in  that 
respect : — Held,  that  there  was  a  vendor's  lien, 
and  that  Locke  King's  Acts  Amendment  Act 
applied  ;  that,  accordingly,  all  the  devisees  were 
entitled  to  was  the  real  estate  charged  with  the 
unpaid  purchase-money,  and  therefore  on  the 
facts  to  nothing ;  but  held,  moreover,  that  the 
order  of  compromise  would  be  fatal  to  their 
claim,  if  otherwise  good.  Coekcroft,  In  re, 
Broadbent  v.  Graves,  24  Ch.  D.  94  ;  52  L.  J.,  Ch. 
811 ;  49  L.  T.  497  ;  32  W.  R.  223— Kay,  J. 

Bequest  of  leasehold— Contract  to  Purchase 
Reversion  not  Completed.] — Locke  King's  Acts 
Amendment  Act,  1877  (40  &  41  Vict.  c.  34),  s.  1, 
applies  to  leaseholds.  A  testator  by  his  will, 
made  in  1884,  bequeathed  to  his  wife  the  lease- 
hold house  "  in  which  I  now  reside.'*  At  the 
date  of  the  will  he  was  residing  in  a  leasehold 
house.  In  1887  he  entered  into  a  contract  with 
his  lessor  to  purchase -the  reversionary  ground 
lease,  but  died  before  the  purchase  was  com- 
pleted. His  widow  accepted  the  bequest: — 
Held,  that  all  the  testator's  interest  in  the  house 
passed  to  the  widow,  subject  to  her  liability  to 


*  pay  the  purchase-money.  Kershaw,  I*  ne, 
Drake  v.  Kershaw,  37  Ch.  D.  674  ;  57  L.  J.,  Ch. 
599  ;  58  L.  T.  512 ;  36  W.  R.  413— North,  J. 

"  Contrary  or  other  Intention.1*]— A  testator 
directed  his  private  debts  to  be  paid  out  of  the 
proceeds  of  certain  life  policies  ;  he  bequeathed 
his  residue,  subject  to  the  payment  of  his  trade 
debts;  after  the  date  of  his  will  he  deposited 
the  title-deeds  of  real  estate  with  his  bankcre  to 
seenre  an  overdrawn  trade  account : — Held,  that 
this  amounted  to  a  declaration  of  intention  con- 
trary to  Locke  King's  Act  and  that  the  devisee 
of  the  real  estate  was  entitled  to  have  it  exone- 
rated from  the  banker's  lien.  Fleck,  In  re, 
Colston  v.  Roberts,  37  Ch.  D.  677  ;  57  L.  J.,  Chi 
943  ;  58  L.  T.  624  ;  36  W.  R.  663— North,  J. 

A  testator,  after  directing  the  payment  of  his 
debts,  devised  a  freehold  house  to  his  wife 
"  absolutely,  to  do  with  as  she  thinks  proper ; " 
and  he  requested  his  executors  to  sell  and  convert 
into  money  whatever  freehold  or  other  property 
he  possessed,  and  to  collect  all  debts  due  to  him, 
and  to  apply  the  proceeds  in  the  payment  of 
certain  legacies.  The  testator's  real  estate  was 
all  subject  to  one  mortgage  : — Held,  that  the  will 
did  not  show  any  "contrary  or  other  intention" 
within  the  meaning  of  Locke  King's  Act,  and 
that  consequently  the  widow  took  the  house 
subject  to  its  rateable  proportion  of  the  mortgage 
debt.  Brownson  v.  Lawranee  (6  L.  R.,  Eq.  1) 
dissented  from.  Sackville  v.  Smyth  (17  L.  R, 
Eq.  153),  and  Gibbins  v.  Eyden  (7  L.  IL,  Eq. 
371),  followed.  Smith,  In,  re,  Hanningto*  r. 
True,  33  Ch.  D.  195  ;  55  L.  J.,  Ch.914  ;  55  L.T. 
549  ;  35  W.  R.  103— North,  J. 


Harshalling.] — A  testator,  seised  and 


possessed  of  real  and  personal  estate,  after 
bequeathing  some  pecuniary  legacies  (amongst 
others  250/.  to  his  son  C.  E.),  directed  by  his  will 
that  his  trustees  should,  in  the  first  place,  pay 
out  of  his  personal  estate  all  debts  of  every  kind, 
including  specialty  debts,  in  full  exoneration  of 
his  real  estate.  He  devised  to  his  wife  an  an* 
nuity  for  life,  and  to  his  daughter  and  his  five 
sons  respectively  perpetual  annuities,  which  he 
*  directed  to  be  1st,  2nd,  3rd,  and  4th  charges  on 
his  real  estate,  and  two  small  annuities  to  others. 
He  appointed  his  son  C.  E.  and  another  trustees 
and  executors  of  his  will.  The  testators  real 
estate  produced  6602.  a  year.  It  was  subject  to 
two  mortgages  of  6,000/.  and  1,500Z.  and  wis 
sufficient  to  pay  the  annuities  charged  thereon 
by  the  will  if  the  mortgages  were  paid  out  of  the 
personal  estate  (8,0002.),  which  was  more  than 
sufficient  to  pay  the  mortgages  and  other  debts. 
But  if  the  mortgages  were  primarily  payable  oat 
of  the  real  estate,  and  the  personal  estate  applied 
in  exonerating  the  real  estate  therefrom,  it  might 
not  reach  the  legacy  of  2502.  to  C.  E. :— Held,  on 
the  construction  of  the  will,  that  the  mortgages 
were  primarily  payable  out  of  the  lands  mort- 
gaged ;  that  the  annuities  were  charged  by  the 
will  on  the  real  estate  alone ;  and  also,  that  the 
application  of  Locke  King's  Act  and  the  acts 
amending  it  did  not  preclude  the  annuitants 
from  their  equity  to  marshal  the  assets.  Buckley 
v.  Buckley,  19  L.  R.,  Ir.  544— M.  R. 

Implied  Exoneration.]— A  testator,  who 


died  in  1874,  bequeathed  three  leaseholds,  A,  B. 
and  C,  to  his  wife,  and  directed  that  "  shooM 
there  be  at  the  time  of  my  death  any  incnm- 


2113 


WILL — Construction. 


2114 


brances  on  C,  I  desire  the  said  incumbrances  to 
be  paid  off."  A.  and  B.  were  subject  to  mort- 
gages at  the  time  of  his  death,  but  C.  was  un- 
incumbered:— Held,  that  the  above  direction 
did  not  raise  an  implication  that  A.  and  B.  were 
not  to  be  exonerated  out  of  the  general  estate  of 
the  testator.  Bull,  In  re,  Catty  v.  Bull,  49  L. 
T.  692 ;  31  W.  R.  854— Kay,  J. 


k.  Chabge  and  Payment  of. 
L  Charge  on  Leaseholds  and  Beal  Estate. 

What  Words  sufficient  to  Create.]— A  testatrix, 
whose  personal  estate  was  insufficient  to  pay  her 
legacies,  and  who  had  a  general  power  of 
appointing  real  estate  by  her  will,  in  1880  "  de- 
vised, bequeathed,  and  appointed  all  her  real 
and  personal  estate,  any  moneys  and  other 
chattel  property  "to  her  trustees  as  executors 
thereinafter  named,  "  subject  as  hereinafter. " 
She  then  "gave,  devised,  and  bequeathed"  a 
number  of  pecuniary,  and  some  specific,  legacies, 
and  "gave,  devised,  and  bequeathed  "  her  free- 
hold and  leasehold  estate  to  her  two  nieces,  and 
all  the  rest  and  residue  of  any  property  "  she 
might  have  at  her  death,  subject  to  the  payment 
of  the  legacies  aforesaid  "  and  her  debts.  By  a 
codicil  she  revoked  some  of  the  legacies  on 
account  of  the  depreciation  of  her  property  : — 
Held,  that  the  legacies  were  charges  on  the  real 
estate.  Wybrant*  v.  Maffett,  17  L.  R.,  Ir.  229— 
M.  B. 

A  father,  on  the  marriage  of  his  second  son,  by 
deed  of  settlement  covenanted  to  pay  him  an 
annuity  of  l,000i.  a  year  for  life,  and  to  charge 
the  annuity  on  a  sufficient  part  of  the  real  estate 
he  might  die  seised  of  ;  provided  that  nothing  in 
the  settlement  should  prevent  his  dealing  with 
his  real  estate  during  his  life,  or,  so  only  that 
sufficient  real  estate  were  left  charged  with  the 
annuity,  by  will.  The  father  subsequently  made 
his  will,  by  which  he  devised  his  real  estate 
(subject  to  the  charges  and  incumbrances  there- 
on) in  strict  settlement  on  his  first  and  other 
sons  in  tail  male: — Held  (Cotton,  L.  J.,  dis- 
sentiente),  that  the  settlement  operated  not  only 
as  a  covenant  by  the  father,  but  also  as  a  charge 
upon  all  the  real  estate  of  which  he  should  die 
seised.  Montague  v.  Sandwich  (Earl),  32  Ch.  D. 
625 ;  65  L.  J.,  Ch.  926 ;  64  L.  T.  602— C:  A. 

A  testator,  by  his  will,  made  in  1882,  charged 
his  copyhold  and  freehold  estates  with  his  debts 
and  funeral  expenses  and  legacies,  and  gave  the 
residue  of  his  personal  property  to  the  trustees 
of  the  deed-poll  upon  trust  to  build  an  hospital 
on  the  site  of  premises  conveyed  by  a  deed-poll. 
The  testator  died  within  twelve  months  from 
the  execution  of  the  deed-poll,  which  therefore 
became  roid  under  the  Statute  of  Mortmain. 
Upon  farther  consideration  in  an  administration 
action  : — Held,  that  the  legacies  must  be  paid 
out  of  the  proceeds  of  the  real  estate,  and  the 
debts  and  funeral  expenses,  in  the  first  instance, 
out  of  the  personalty.  Taylor,  In  re,  Martin  v. 
Freeman,  58  L.  T.  638— Kay,  J. 

A  testator,  after  giving  legacies  and  annuities, 
proceeded  to  say:  "My  executors  may  realise 
such  part  of  my  estate  as  they  think  right  in 
their  judgment  to  pay  the  aforenamed  legacies  "  : 
— Held,  that  the  legacies  were  not  charged  on 
the  real  estate,  for  that  the  direction  to  the 
executors  to  realise  such  parts  of  his  estate  as 


they  thought  right  to  pay  the  legacies,  was  satis- 
fied by  holding  it  to  apply  to  property  which 
they  took  as  executors.  Cameron,  In  re,  Nixon  v. 
Cameron,  26  Ch.  D.  19  ;  63  L.  J.,  Ch.  1139  ;  50 
L.  T.  339;  32  W.  R.  834— C.  A.  See  alto 
Buckley  v.  Buckley,  ante,  col.  2112  ;  and  Biggar 
v.  Eastwood,  post,  col.  2119. 

Gift  of  Annuity  out  of  "  Rents  and  Profits  "— 
Bequest  of  Leaseholds  "subject  thereto."]— 
Bequest  of  leaseholds  "upon  trust,  out  of  the 
rente  and  profits  of  the  said  lands,  to  pay  my 
just  debts,  and,  subject  thereto,  upon  trust  to  pay 
out  of  the  rents  and  profits  of  the  said  lands,  to 
my  wife  Jane  Moore,  during  her  life,  an  annuity 
or  yearly  rent-charge  of  150  J.  per  annum ;  and, 
subject  thereto,  I  bequeath  the  said  lands  of  S., 
upon  trust  to  receive  the  rents  and  profits,  and 
to  apply  the  same  for  the  maintenance,  &c,  of 
my  son,"  and  on  his  attaining  twenty-one,  to 
assign  him  the  lands  and  accumulations  (if  any) 
of  the  said  rents  and  profits,  &c. : — Held,  that 
the  annuity  was  a  charge  upon  the  corpus  of  the 
leaseholds.  Moore1 1  Estate,  In  re,  19  L.  R.,  Ir. 
366 — Monroe,  J. 

Dovise  of  Lands  in  Trust  to  pay  Annuity — 
Subsequent  Speoifio  Devise.] — A  testator  devised 
and  bequeathed  all  his  estates,  real,  freehold, 
and  leasehold,  to  trustees,  on  trust  to  pay  an 
annuity  of  120/.  a  year  among  three  of  his 
children,  A.,  B.,  and  C. ;  the  said  annuity  to  be 
charged  on  all  his  said  estates  ;  and  after  giving 
certain  pecuniary  legacies,  he  devised  to  his 
trustees  a  certain  farm  of  land,  held  in  fee  simple, 
to  be  divided  between  his  two  sons,  P.  and  M., 
and  devised  to  his  trustees  certain  other  lands  to 
the  use  that  his  daughter  R.  should  receive  an 
annuity  of  50/.,  to  be  charged  on  the  said  lands  ; 
and  subject  thereto,  to  the  use  of  his  son  P. ;  and 
he  devised  certain  other  lands  to  his  trustees,  to 
the  use  that  his  daughter  J.  should  receive  an 
annuity  of  60/.,  to  be  charged  on  the  said  lands, 
and  subject  thereto  to  the  use  of  his  son  M.  After 
certain  specific  bequests,  the  testator  bequeathed 
all  the  residue  and  remainder  of  his  personalty 
not  otherwise  disposed  of — three-fourths  to  his 
sons  P.  and  M.,  and  one-fourth  to  be  divided 
amongst  three  of  his  daughters  : — Held,  that  the 
annuity  of  1202.  a  year  was  charged  upon,  and 
payable  out  of,  all  the  testator's  real,  freehold, 
and  leasehold  estates,  including  those  specifically 
devised.  Sponge  v.  Sponge  (3  Bli.,  N.  S.  84), 
and  Conron  v.  Conron  (7  H.  L.  C.  168)  distin- 
guished. Cornwall  v.  Saurin,  17  L.  R„  Ir.  695 
— C.A. 

Additional  Legacy  given  by  Codicil.]— The 
principle  that  where  a  will  contains  a  gift  of 
legacies  and  residue  the  legacies  are  (in  the 
event  of  the  personal  estate  proving  insufficient 
for  their  payment)  to  be  deemed  to  be  charged 
upon  the  real  estate  applies  in  favour  of  an 
additional  legacy  given  by  a  codicil  to  a  legatee 
named  in  the  wilL  Hall,  In  re,  Hall  v.  Mall, 
51  L.  T.  86— Pearson,  J. 

Order  of  Application  of  Beal  and  Personal 
Estate.  ] — A  testator,  after  directing  his  executors 
(whom  he  also  appointed  trustees)  to  pay  his 
debts  and  funeral  and  testamentary  expenses, 
and  giving  various  pecuniary  legacies,  gave  all 
his  personal  estate  and  effects,  except  money  or 
securities  for  money,  to  R. ;  and  he  gave  and 

3  Y 


2115 


WILL — Construction. 


2116 


devised  all  the  rest,  residue,  and  remainder  of 
his  estate,  both  real  and  personal,  to  his  trustees, 
upon  trust  thereout,  in  the  first  place,  to  pay  two 
specified  sums,  and,  as  to  the  residue  thereof,  or 
such  part  or  parts  thereof  as  might  lawfully  be 
appropriated  for  the  purpose,  for  such  one  or 
more,  or  any  hospital  of  a  charitable  nature,  and 
in  such  proportions  as  they  in  their  uncontrolled 
discretion  should  think  fit.  It  was  held  by  the 
Court  of  Appeal  that  the  gift  to  R.  was  not 
specific,  but  that  all  the  pecuniary  legacies  were 
payable  in  full  before  she  could  be  entitled  to 
anything  under  the  bequest  to  her.  The  personal 
estate  (including  that  bequeathed  to  R.),  was 
insufficient  for  the  payment  of  the  legacies,  and 
the  real  estate  had  to  be  sold  to  make  good  the 
deficiency.  After  the  legacies  had  been  paid 
there  remained  a  surplus  of  the  proceeds  of  the 
sale  of  the  real  estate: — Held,  that  the  real 
estate  was  charged  with  the  payment  of  the 
legacies  only  in  aid  of  the  personal  estate,  and 
that  R.  was  not  entitled  to  be  recouped  pro 
tanto  out  of  the  surplus  the  loss  which  she  had 
suffered  by  the  application  of  the  personal  estate 
bequeathed  to  her  in  the  payment  of  legacies. 
Ovey,  In  re,  BroadberU  v.  Barrow,  31  Ch.  D. 
118 ;  66  L.  J.f  Ch.  103  ;  63  L.  T.  723;  34  W.  R. 
100 — Pearson,  J.  See  Taylor,  In  re,  ante,  col. 
2082. 

Bight  of  Legatees  to  Back  Rents.]  —  Where 
a  devisee  or  his  assigns  have  been  in  possession 
of  jeal  estate  charged  with  the  payment  of 
legacies,  and  the  estate  proves  insufficient  to 
satisfy  the  legacies,  the  legatees  are  not  entitled 
to  back  rents.  Qarfitt  v.  Allen,  or  Allen  v. 
Longstaffe,  37  Ch.  D.  48  ;  67  L.  J.,  Ch.  420  ;  67 
L.  T.  848 ;  36  W.  R.  413— North,  J. 

"  Testamentary  Expenses" — Costs  of  Litigation 
in  Probate  Division.  ]— A  testatrix,  by  her  will, 
after  making  various  specific  devises  of  her  real 
estate,  and  giving  certain  legacies,  charged  her 
real  estate,  in  exoneration  of  her  personal  estate, 
with  the  payment  of  her  debts,  funeral  and 
testamentary  expenses,  and  the  legacies  which 
she  gave.  The  will  was  disputed  in  the  Probate 
Division  by,  amongst  other  persons,  her  co- 
heiresses-at-law.  The  action  in  that  Division 
was  compromised,  and  the  will  proved  in  solemn 
form,  it  being  provided  in  the  agreement  for  the 
compromise  that  the  costs  of  that  action  should 
be  paid  out  of  the  estate  in  accordance  with  the 
rules  and  practice  of  the  court.  The  question 
arose  whether  the  costs  incurred  by  the  co- 
heiresses in  that  action  were  testamentary  ex- 
penses, so  as  to  be  payable  out  of  the  real  estate 
under  the  charge  of  those  expenses  upon  the  real 
estate  made  by  the  will : — Held,  that  such  costs 
were  testamentary  expenses,  inasmuch  as  they 
were  incurred  in  establishing  the  will,  and  that 
they  were  therefore  payable  out  of  the  real 
estate.  Brown  v.  Burdett,  63  L.  J.,  Ch.  66  ; 
48  L.  T.  763  ;  31  W.  R.  864— V.-C.  B. 


it  Exoneration  of  Personal  Estate. 

In  what  Cases.]— Testator  gave  to  his  wife  an 
annuity  of  602.,  issuing  and  payable  out  of  his 
real  estate  thereinafter  devised  to  his  three  sons. 
He  then  gave  to  his  daughter  A.  a  legacy  of 
6002.,  and  to  each  of  his  sons  H.  and  8.,  and  to 
each  of  his  daughters  M.  and  E.,  a  legacy  of 


1,6002.,  to  be  paid,  with  interest,  two  years  after 
his  death.  And  he  thereby  charged  and  made 
chargeable  his  real  estate,  thereinafter  devised  to 
his  three  sons  J.,  T.,  and  F.,  with  the  payment 
of  the  said  legacies  and  the  interest  thereon. 
He  gave  his  personal  estate  (charged  with  the 
payment  of  debts,  funeral  and  testamentary  ex- 
penses, and  expenses  of  proving  his  will)  unto 
his  said  sons  J.,  T.,  and  F.,  and  gave  all  his  re- 
siduary real  estate  (subject  to  mortgages,  and 
subject  to  and  charged  with  the  payment  of  the 
annuity  of  602.,  and  the  legacies  to  his  sons  H. 
and  S.  and  his  daughters  M.  and  E.,  and  also 
the  legacy  of  6002.  to  his  daughter  A.,  and  sub- 
ject also,  in  aid  of  his  personal  estate,  to  the 
payment  of  his  debts,  funeral  and  testamentary 
expenses,  and  the  expenses  of  proving  his  will) 
equally  between  his  said  sons  J.,  T.,  and  F.:— 
Held,  that  the  legacies  were  charged  on  the  real 
estate  exclusively  in  exoneration  of  the  personal 
estate.  Needkam,  In  re,  Robinson  v.  Keedham, 
64  L.  J.,  Ch.  75— V.-C.  B. 

By  his  will  a  testator  bequeathed  a  legacy  of 
16,0002.  to  trustees  for  his  daughter  A.  daring 
her  life,  and  after  her  death  directed  that  the 
legacy  should  revert  to  and  be  added  to  his 
general  residuary  personal  estate  and  go  as  the 
same  was  bequeathed  by  his  will.     The  testator 
then  gave  his  general  residuary  personal  estate 
to  B.    The  testator  devised  his  estates  in  certain 
places  to  other  trustees  as  a  fund  for  the  dis- 
charge of  his  debts,  funeral  and  testamentarv 
expenses,  and  his  pecuniary  legacies  in  aid  of 
his  personal  estate,  with  power  to  his  trustees,  if 
they  thought  it  expedient  or  necessary,  either 
before  or  after  his  residuary  personal  estate 
should  be  exhausted,  to  raise  money  for  those 
purposes  by  sale  or  mortgage,  and  subject  thereto, 
upon  trust  for  B.  in  fee.    The  personal  estate  of 
the  testator  was  insufficient  for  the  payment  of 
his  debts  and  legacies,  and  B.  supplied  such 
deficiency,  including  the  annual  payments  to  A 
in  respect  of  her  legacy.    A.  survived  both  the 
testator  and  B.    On  the  death  of  B.  the  question 
arose  whether,  as  the  testator's  personalty  was 
insufficient  for  the  payments  before  mentioned, 
the  testator  intended  that  the  corpus  of  the 
legacy  should  be  raised  out  of  the  real  estate 
devised  to  B.  for  the  benefit  of  B.,  who  was  the 
testator's  residuary  legatee: — Held  (following 
Johnson  v.  Webster,  4  De  G.  M.  &  G.  474),  that 
the  words u  revert  to  and  be  added  to  my  general 
residuary  estate,"  in  the  will,  showed  that  the 
testator  meant  the  legacy  to  be  restored  to  the 
funds  from  which  it  was  taken  ;  and  that  it  was 
not  to  be  taken  from  the  real  estate  merely  for 
the  purpose  of  augmenting  the  personal  estate : 
— Held  also,  that  B.  had  a  vested  interest  in  the 
charge  on  the  real  estate  of  which  he  was  abso- 
lute owner ;  and  that  such  interest  was  in  im- 
mediate contact  with  his  ownership  of  the  in* 
heritance   in   the   land.     Held   further,  that, 
inasmuch  as  the  charge  was  not  raised  during 
the  lifetime  of  B.,  and  that  now  it  was  neither 
necessary  nor  expedient  to  raise  it,  the  corpus  of 
the  legacy  was  not  raisable  out  of  the  real  estate 
for  the  benefit  of  B.'g  personal  estate  at  the  in* 
stance  of  those  who  were  entitled  to  his  per- 
sonal estate.    Somerset  (Duke),  In  re%  Thymt 
v.  St.  Afattr,  65  L.  T.  763— Chitty,  J.  See  Ufi 
v.  Lloyd,  ante,  coi  2067. 

Lapsed  Bequest]— A  testatrix  devised 

her  real  estate  to  trustees  in  trust  for  sale,  and 


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"WILL — Construction. 


2118 


directed  them  out  of  the  proceeds  to  pay  her 
funeral  and  testamentary  expenses,  debts,  and 
legacies,  and  pay  the  residue  to  a  class  of  persons. 
She  then  directed  her  trustees,  who  were  also 
her  executors,  to  sell  her  leaseholds,  and  if  the 
sale  moneys  of  the  real  estate  were  insufficient 
to  pay  her  debts,  funeral  and  testamentary  ex- 
penses, and  legacies,  to  apply  so  much  of  the 
proceeds  of  the  sale  of  the  leaseholds  as  should 
be  sufficient  for  that  purpose,  and  to  pay  the 
residue,  or  if  no  part  was  required  for  the  above 
purpose,  the  whole  of  the  proceeds  to  another 
class  of  persons.  She  then  bequeathed  to  her 
trustees  "  all  my  personal  estate,"  upon  trust  to 
call  it  in  and  convert  it  into  money,  and  after 
payment  of  the  expenses  of  such  calling  in 
and  conversion,  to  pay  the  proceeds  to  the 
churchwardens  of  C.  for  charitable  purposes. 
Part  of  the  personal  estate  consisted  of  a  mort- 
gage debt,  as  to  which  the  charitable  bequest 
failed,  and  the  Grown  became  entitled,  there 
being  no  next  of  kin : — Held,  that  there  was 
upon  the  will  a  sufficient  indication  of  intention 
that  the  general  personal  estate  should  be  exone- 
rated from  debts,  funeral  and  testamentary  ex- 
penses, and  legacies  out  of  the  real  estate ; 
and  if  that  was  insufficient,  out  of  the  lease- 
holds ;  but  that  this  right  to  exoneration  failed 
as  regarded  the  property  which  went  to  the 
Crown,  and  that  there  was  no  distinction  in  this 
respect  between  the  freeholds  and  leaseholds. 
Browne  v.  Qroombridge  (4  Madd.  495),  in  which 
a  direction  to  exonerate  the  general  personal 
estate  out  of  a  specific  fund  of  personalty  was 
held  to  enure  for  the  benefit  of  persons  who  took 
by  lapse,  not  followed : — Held,  therefore,  that 
the  debts,  funeral  and  testamentary  expenses, 
and  legacies,  must  be  apportioned  rateably  be- 
tween the  pure  and  impure  personalty,  including 
the  leaseholds ;  that  the  real  estate  and  then  the 
leaseholds  were  to  be  applied  in  exonerating  the 
pure  personalty  from  its  proportion  of  debts,  &c, 
and  that  the  charity  took  the  pure  personalty, 
subject  to  bo  much  of  that  proportion  as  the 
freehold  and  leasehold  estates  were  insufficient 
to  satisfy,  and  that  the  Grown  took  the  impure 
personalty  (other  than  leaseholds)  subject  to  its 
proportion  of  debts,  &c.  Meere,  In  re,  KUford 
v.  Blaney,  31  Gh.  D.  56  ;  55  L.  J.,  Gh.  185  ;  54 
L.  T.  287 ;  34  W.  R.  109— C.  A. 

Deed— Specific  Personal   Estate.]— The 

role  that  a  charge  of  debts  on  real  estate  does 
not  of  itself  exonerate  the  personal  estate  applies 
to  a  case  where  a  charge  for  payment  of  debts 
after  the  grantor's  death  is  created  by  deed.  But 
no  such  rule  applies  to  specific  personal  estate 
given  on  similar  trusts ;  in  such  a  case  the 
specific  personal  estate  will  be  the  primary  fund 
for  the  payment  of  the  debts.  Trott  v. 
Buchanan,  28  Gh.  D.  446  ;  54  L.  J.,  Gh.  678  ;  52 
L.  T.  248  ;  33  W.  R.  339— Pearson,  J. 

A  testator  by  a  deed  executed  in  his  lifetime 
conveyed  and  assigned  real  and  personal  estate  to 
trustees,  in  trust  for  himself  during  his  life,  and 
after  his  death  to  sell  and  convert  the  property, 
and  to  stand  possessed  of  the  proceeds  on  trust, 
after  payment  of  costs,  to  pay  all  the  debts 
which  should  be  due  from  him,  and  his  funeral 
expenses,  and,  after  such  payment  as  aforesaid, 
upon  trust  for  his  sons  and  their  children.  By 
his  will  the  testator,  after  reciting  the  deed, 
devised  and  bequeathed  all  and  every  the  residue 
of  his  real  and  personal  estate  not  comprised  in 


and  subject  to  the  trusts  of  the  deed  to  his  wife 
for  her  life,  with  remainders  over,  and  he  ap- 

Sointed  his  wife  and  one  of  the  trustees  of  the 
eed  executors  of  his  will,  which  was  proved  by 
the  widow  and  one  of  the  trustees  : — Held,  that 
as  regarded  the  real  estate  comprised  in  the  deed, 
the  testator's  general  personal  estate  was  not 
exonerated  from  its  primary  liability  to  pay  his 
debts.  But  held,  that  the  personal  estate  com- 
prised in  the  deed  was  the  primary  fund  for  the 
payment  of  the  debts.  Prench  v.  Chiehetter 
(2  Vera.  568)  discussed  and  explained.    lb. 

Bpeoiflo  and  Residuary  Gifts  of  Personalty.] 
— A  testatrix  bequeathed  to  her  trustees  certain 
specified  moneys,  upon  trust,  "after  payment 
thereout,  in  the  event  of  my  predeceasing  my 
husband,  of  my  debts  and  funeral  expenses  as 
well  as  of  my  testamentary  expenses  for  the 
time  being,'*  for  her  nephew  ;  and  after  giving 
certain  pecuniary  legacies  she  devised  and  be- 
queathed all  her  real  and  personal  estate  not 
thereinbefore  otherwise  bequeathed,  to  trustees, 
upon  trust  after  her  husband's  death,  to  sell  and 
convert,  and  out  of  the  proceeds, "  subject  never- 
theless to  the  bequest  of  moneys  to  my  said 
nephew  hereinbefore  contained,"  to  pay  her 
debts,  pecuniary  legacies,  and  funeral  and  testa- 
mentary expenses,  and  invest  the  residue  and 
stand  possessed  thereof  upon  certain  trusts.  The 
testatrix  predeceased  her  husband  : — Held,  that 
the  moneys  comprised  in  the  specific  gift  were 
primarily  applicable  to  the  payment  of  the  debts 
and  funeral  and  testamentary  expenses  of  the 
testatrix.  Hastings  (Lady),  In  re,  Hallett  v. 
Hastings,  55  L.  J.,  Ch.  278 ;  64  L.  T.  75 ;  34 
W.  R.  452— Kay,  J. 


ill.  Contribution. 

Charitable  Bequest.] — A  testator,  entitled  to 
estates  in  two  counties,  L.  and  A.,  both  subject 
to  incumbrances,  devised  them  to  trustees  in 
trust  to  apply  the  rents  in  payment  of  head- 
rents,  fines  for  renewal,  taxes,  &c.,  and  the 
interest  upon  charges  affecting  them,  and  to 
pay  the  residue  of  the  rents  to  his  wife  for  life  ; 
and  after  her  death  in  trust  to  receive  the 
rents,  and  employ  them  during  the  period  of 
twenty-one  years  in  payment  of  head-rents, 
fines,  &c.,  and  the  interest  on  charges  and  two 
annuities  to  his  nephews  A.  N.  and  G.  N. ;  and 
next,  so  far  as  the  rents  would  extend,  in  payment 
of  the  charges  on  his  estates,  his  debts  and  legacies, 
at  such  time  as  the  trustees  should  think  most 
convenient.  He  devised  portions  of  the  L. 
estate  to  his  nephews  A.  N.  and  G.  N.,  free  from 
incumbrances  after  the  expiration  of  the  period 
of  twenty-one  years ;  and  as  to  the  rest,  residue 
and  remainder  of  his  estates  not  before  devised, 
charged  with  the  residue  of  the  incumbrances, 
debts,  and  legacies  then  unpaid,  to  T.  for  life, 
remainder  to  T.'s  first  and  other  sons  in  tail 
male,  remainder  to  B.  for  life,  remainder  to  B.'s 
first  and  other  sons  in  tail  male,  with  other 
remainders  over,  and  an  ultimate  remainder  to 
his  own  right  heirs.  He  bequeathed  annuities 
for  charitable  purposes  charged  on  the  A.  estate, 
and  directed  that  charges  which  should  affect 
his  estates,  and  all  his  debts  due  at  his  death, 
and  his  legacies,  should  be  borne  by  and  be 
charges  primarily  affecting  the  "  aforesaid  resi- 
due" of  his  estates  limited  as  aforesaid,  and 

3  T  2 


2119 


WILL — Construction. 


2120 


be  paid  oat  of  the  rents  and  profits  thereof  in 
exoneration  of  his  personal  estate  and  other 
properties  bequeathed  and  devised  to  his  wife 
and  nephews,  and  so  that  such  personal  estate 
and  other  property  should  be  relieved  therefrom. 
After  the  wife's  death,  estate  A.  was  sold  by  the 
creditors,  and  the  proceeds  of  the  sale  paid  all 
the  charges  except  a  sum  of  3372. : — Held,  that 
during  the  period  of  twenty-one  years  from  the 
death  of  the  testator's  wife  the  rents  and  profits 
of  the  estates  devised  to  A.  N.  and  C.  N.  and  to 
B.  respectively  were  both  equally  applicable  to 
the  payment  of  the  charges  on  the  testator's 
estates  and  his  debts  and  legacies,  and  that  the 
estates  devised  to  B.  were  not  bound  to  in- 
demnify the  estates  devised  to  A.  N.  and  C.  N. 
against  such  charges,  debts,  and  legacies  until 
after  the  expiration  of  the  term  of  twenty-one 
years : — Held,  also,  that  the  fact  that  the 
charges  had  been  paid  off  by  the  sale  of  estate 
A.  did  not  entitle  A.  N.  and  C.  N.  to  go  into 
possession  of  the  estate  devised  to  them  before 
the  expiration  of  the  twenty-one  years,  and  that 
the  surplus  rents  of  the  unsold  estates,  after 
payment  of  the  sum  of  3372.  so  left  unpaid  and 
interest,  and  of  the  annuities  payable  to  A.  N. 
and  C.  N.,  and  the  legacies,  were  applicable, 
during  the  twenty-one  years,  to  recoup  the 
persons  who  would,  but  for  the  sale,  have  been 
entitled  to  the  sold  lands,  so  much  of  the  charges 
paid  out  of  the  corpus  of  the  estate  sold  as,  but 
for  the  sale,  would  have  been  payable  out  of 
the  rents  during  the  term  of  twenty-one  years : 
— Held,  further,  that  the  charitable  annuities 
were  not  charged  on  the  estates  devised  to 
A.  N.  and  C.  N.,  and  that  the  legacies  were  only 
charged  on  the  rents  of  these  estates  during  the 
twenty-one  years : — Held,  further,  that  the 
charitable  annuities  charged  on  the  A.  estate 
were  entitled  to  marshal  and  stand  in  the  place 
of  the  incumbrances  as  against  the  unsold  estates, 
but  so  that  at  the  expiration  of  the  twenty-one 
yeara'  term,  their  right  to  marshal  as  against  the 
estates  devised  to  A.  N.  and  C.  N.  should  cease. 
Biggar  v.  Eastwood,  19  L.  B.,  Ir.  49—  C.  A. 

Deficiency  of  Personal  Estate— Abatement — 
Portions  charged  on  Seal  Estate.] — A  testator 
devised  his  real  estate  to  the  use  of  his  wife 
during  her  life  or  widowhood,  with  remainder 
to  the  use  of  trustees  for  a  term  of  500  years,  on 
trust  to  raise,  by  mortgage  of  the  real  estate  or 
out  of  the  rents  and  profits,  portions  of  5,0002. 
apiece  for  each  of  his  younger  children,  with 
remainders  in  strict  settlement,  the  testator's 
eldest  son  taking  the  first  life  estate.  The  tes- 
tator's general  personal  estate  was  insufficient 
for  the  payment  of  his  debts,  and,  consequently, 
the  specifically  bequeathed  personal  estate  and 
the  real  estate  had  to  contribute : — Held,  that,  as 
between  the'portioners  and  the  persons  entitled 
to  the  real  estate  on  which  they  were  charged, 
the  former  were  not  bound  to  contribute  to 
make  good  the  deficiency.  Raikes  v.  Boulton 
(29  Beav.  41)  followed;  Long  v.  Short  (1  P. 
Wins.  403)  considered  and  explained: — Held, 
also,  that,  as  between  the  real  estate  and  the 
specifically  bequeathed  personal  estate,  the 
former  must  contribute  in  proportion  to  its 
full  value,  not  in  proportion  to  its  value  less  the 
amount  of  the  portions.  Saunders-Bavies,  In 
re,  Saunders- Bavies  v.  Saunders-Bavies,  34  Ch. 
D.  482 ;  56  L.  J.,  Ch.  492 ;  56  L.  T.  153 ;  35 
W.  R.  493— North,  J. 


Xixed  Fund  of  Bealty  and  Personalty— Pay- 
ment  out  of  Personal  Estate.]— A  testator  by 
his  will  declared  in  effect  that  his  debts,  legacies, 
funeral  and  testamentary  expenses,  and  the 
costs,  charges,  and  expenses  incidental  to  the 
execution  'of  the  trusts  of  his  will,  should  be 
paid  rateably  out  of  all  his  estate,  real  and 
personal.  In  the  administration  of  bis  estate 
by  the  court,  the  debts,  &&,  were  paid  out  of 
the  personalty,  but  without  prejudice  to  the 
liability  of  the  realty.  On  the  further  con- 
sideration of  the  action  :— Held,  that  the  Teal 
estate  must  make  good  to  the  personal  estate  its 
rateable  proportion  of  the  amount  paid  oat  of 
the  personal  estate  for  debts,  fee.,  with  interest 
Ashtoorth  v.  Munn,  34  Ch.  D.  391 ;  56  L.  J, 
Ch.  451 ;  56  L.  T.  86  ;  36  W.  R.  513— North,  J. 

Expenses  of  Probate— Married  Woman,  Will 
of— Costs  of  Proceedings.] — A  married  woman 
who  had  a  power  of  appointment  over  certain 
trust  funds,  and  was  also  possessed  of  separate 
estate  her  title  to  which  had  accrued  before  the 
Married  Women's  Property  Act,  1882,  died  in 
1887,  having  in  the  same  year  made  a  will,  by 
which  she  exercised  her  power  of  appointment 
over  the  trust  fund  and  appointed  executors, 
but  made  no  disposition  of  her  separate  pro* 
perty.  Probate  of  the  will  was  granted  to  the 
executors  according  to  the  altered  practioe  in- 
troduced by  the  Probate  Roles  of  1887,  U.t  in 
the  ordinary  form  without  any  exception  or 
limitation.  The  court  decided  that  on  the  death 
of  the  testatrix  the  title  of  her  husband  to  her 
undisposed  of  separate  estate  accrued,  and  that 
the  executors  of  her  will  became  trustees  of  it 
for  him,  and  not  for  the  next  of  kin  of  the 
testatrix  : — Held,  that  the  expenses  of  proring 
the  will,  including  the  probate  duty,  most  be 
apportioned  rateably  between  the  appointed 
and  undisposed  of  property  in  the  same  manner 
in  which  they  would  have  been  apportioned 
under  a  grant  ceeterorum  before  the  change  in 
the  form  of  the  grant ;  but  that  the  costs  of  the 
proceedings  in  which  the  questions  were  deter- 
mined must  fall  upon  the  undisposed  of  pro- 
perty, as  they  were  occasioned  by  a  contest 
between  the  husband  and  the  next  of  Ian. 
Lambert's  Estate,  In  re,  Stanton  v.  Lambert, 
39  Ch.  D.  626  ;  67  L.  J.,  Ch.  927 ;  69  L.  T.  4»- 
Stirling,  J. 

iv.    "Marshalling. 

Residuary  Gift  to  Charities  with  ttnete 
for  Payment  exclusively  out  of  pore  PersaaaltyJ 
—A  testatrix  gave  all  her  real  and  personal 
estate  to  trustees  upon  trust  to  convert,  and  oit 
of  the  proceeds  pay  her  debts,  funeral  and  testa- 
mentary expenses,  and  certain  legacies  be- 
queathed to  private  individuals,  and  directed 
that  all  such  legacies  should  in  the  first  instance 
be  payable  out  of  the  proceeds  of  sale  of  her 
"  real  and  leasehold  estate,  if  any. n  She  directed 
her  trustees  to  divide  the  residue  of  her  estate 
into  three  parts  and  pay  the  same  to  certain 
charities.  She  then  directed  that « '  the  fbregomf 
charitable  legacies  "  should  be  paid  M  exclnsrfeJr 
out  of  such  part  of  her  pure  personal  &tote* 
was  legally  applicable  for  that  purpose.  The 
testatrix  had  no  real  or  leasehold  estate  in  th» 
country,  but  was  possessed  of  land  in  the  cotonr 
of  the  Cape  of  Good  Hope  (the  value  of  wtacB 
was  less  than  the  amount  of  the  general  legacisi) 


2121 


WILL — Construction. 


2122 


and  of  pure  and  impure  personalty: — Held, 
that  the  direction  as  to  payment  of  the  charitable 
legacies  was  in  effect  equivalent  to  a  direction 
that  the  residue  should  consist  exclusively  of 
pure  personalty,  and  therefore  operated  as  a 
direction  to  marshal  for  the  benefit  of  the 
charities ;  that  the  general  legacies  were  pri- 
marily payable  out  of  the  proceeds  of  sale  of  the 
land  in  the  colony ;  and  that  the  debts  and 
funeral  and  testamentary  expenses  and  costs  of 
action  and  the  unpaid  portion  of  the  general 
legacies  must  be  paid  in  the  first  instance  out  of 
the  impure  personalty  so  as  to  leave  the  pure 
personalty,  so  far  as  possible,  to  constitute  the 
ultimate  residue.  Arnold,  In  re,  Ravenseroft  v. 
Workman,  37  Ch.  D.  637  ;  67  L.  J.,  Ch.  682  ;  68 
L.  T.  469  ;  36  W.  R.  424— Kay,  J. 

Mortmain  Act— Direction  to  Marshal.]— A 
testator,  by  will  dated  in  1883,  after  giving 
certain  pecuniary  legacies,  gave  the  residue  of 
his  estate  and  property  to  trustees  upon  trust  to 
sell  and  convert,  and  out  of  the  proceeds  of  sale 
and  the  money  of  which  he  should  be  possessed 
at  the  time  of  his  death  to  pay  his  funeral 
expenses,  and  upon  trust  to  pay  and  divide  the 
net  residue  unto  and  equally  between  the  trea- 
surers for  the  time  being  of  St.  Thomas's  Hos- 
pital, St.  George's  Hospital,  Westminster  Hos- 
pital, and  Charing  Cross  Hospital,  to  be  applied 
for  the  use  and  benefit  of  the  said  hospitals. 
The  testator  then  declared  that  his  pure  personal 
estate  should  in  the  first  place  be  applied  in 
payment  of  the  shares  of  St.  Thomas's  Hospital 
and  Charing  Cross  Hospital.  The  Westminster 
Hospital  and  the  St.  George's  Hospital  were 
empowered  to  take  land  or  impure  personalty ; 
the  other  two  hospitals  were  not.  The  testator 
at  the  time  of  his  death  was  entitled  to  both 
pore  and  impure  personal  estate  : — Held,  that 
there  was  in  the  will  sufficient  direction  to 
marshal  the  estates  so  that  the  pure  personalty 
was  first  to  be  applied  in  payment  of  the  shares 
of  the  two  hospitals  which  could  not  take  land 
or  impure  personalty.  Pitt,  In  re,  Lacy  v. 
Stone,  53  L.  T.  113  ;  33  W.  R.  663— Chitty,  J. 

See  alto  Biggar  v.  Eastwood,  supra. 

Meet  of  Locke  King's  Let.]— See  Buckley 
v.  Buckley,  ante,  col.  2112. 


▼.    Accumulations. 

Residue.]  —  A  testator  bequeathed  to  his 
trustees  and  executors,  the  sum  of  3,7602.  Bank 
of  Ireland  stock,  and  directed  them  to  retain 
it  in  their  names  for  the  purpose  of  se- 
curing the  punctual  payment  of  an  annuity 
of  300Z.  to  his  wife ;  and  after  her  death 
he  directed  the  annuity  to  be  paid  to  the 
governor  and  trustees  of  the  Hospital  for  Incur- 
ables, Donnybrook  Road,  Dublin  ;  and  by  a 
codicil  he  bequeathed  the  residue  of  his  estate 
to  the  trustees  for  the  time  being  of  the  Mater 
Misericordi©  Hospital,  Dublin.  The  dividends 
on  the  bank  stock  were  more  than  sufficient  to 
pay  the  annuity  and  a  large  surplus  had  been 
accumulated  and  invested  by  the  trustees  in 
Three  per  Cent.  Stock:— Held,  on  a  peti- 
tion presented  by  them  for  the  advice  of  the 
court,  that  they  were  at  liberty  to  pay  over 
accumulations  of  the  surplus  dividends  to 
the  trustees  of  the  latter  hospital  as  residuary 


legatees.      ThareVs  Trusts,  In  re,  13  L.  R.,  Ir. 
337— M.  R. 

Directions  to  accumulate  till  Mortgage  Paid 
off— Sale  of  Part  by  Mortgagees.] — A  testator 
who  died  in  1875  devised  his  estate  to  trustees, 
and  directed  that  the  rents  should  be  accumu- 
lated until  the  amount  of  the  accumulations  was 
sufficient  to  discharge  the  principal-money  due 
on  mortgages  on  the  estate,  and  that  thereupon 
the  trustees  should  pay  off  the  6ame.  And  he 
declared  that  the  tenants  for  life  should  not  be 
entitled  to  any  portion  of  the  rents  until  the 
mortgages  had  been  paid  off.  There  were  two 
mortgages  on  the  estates.  The  trustees  accumu- 
lated the  rents  and  paid  off  one  mortgage.  The 
mortgagees  of  the  other  mortgage  in  1884  Bold 
the  part  of  the  estates  subject  to  it  for  less  than 
the  amount  of  the  mortgage  debt,  and  the  residue 
was  paid  off  out  of  the  accumulations  of  which 
a  surplus  still  remained  : — Held,  that  the  tenant 
for  life  was  entitled  to  be  let  into  possession  of 
the  rest  of  the  estates,  and  to  payment  of  the 
remainder  of  the  accumulations.  Norton  v. 
Johnstone,  30  Ch.  D.  649  ;  66  L.  J.,  Ch.  222  ;  34 
W.  R.  13— Pearson,  J. 

Contingent  Remainder— Rents  and  Profits — 
Doctrine  of  Attraction.]— A  testator,  by  his  will 
dated  in  1851,  after  making  divers  specific 
devises  and  bequests,  and  giving  a  life  interest 
to  his  wife  in  his  residuary  real  estate,  devised 
such  residuary  real  estate,  after  the  death  of  his 
wife,  to  his  trustees  in  trust  for  his  grandson 
during  his  life,  and  from  and  after  his  decease 
in  trust  for  "  all  and  every  his  child  and  children 
who  shall  attain  the  age  or  respective  ages  of 
twenty-one  years,  and  his,  her,  or  their  heirs  and 
assigns  for  ever  " ;  but  in  case  there  should  be  no 
child  of  his  grandson  who  should  attain  the  age 
of  twenty-one  years,  then,  as  to  the  same  resi- 
duary real  estate,  upon  trusts  over  as  in  the  will 
mentioned.  The  will  contained  a  gift  of  the  re- 
siduary personal  estate,  but  it  was  distinct  from 
the  above  devise,  and  upon  different  trusts  from 
those  declared  concerning  the  real  estate,  although 
some  of  the  trusts  were  the  same.  The  will  alio 
contained  powers  for  the  trustees  to  grant  leases, 
and  apply  the  rents  and  profits  of  the  real  estate 
in  making  repairs.  The  testator  died  in  1853, 
and  his  widow  died  in  1866.  The  grandson  died 
in  October,  1867,  leaving  an  only  child,  who  was 
born  on  the  11th  February,  1864.  The  question 
arose  whether  the  accumulated  rents  accruing 
between  the  date  of  the  death  of  the  testator's 
grandson  and  the  time  when  the  grandson's  only 
child  attained  the  age  of  twenty-one  years,  were 
undisposed  of  by  the  will,  or  passed  to  such 
child: — Held,  that  the  accumulated  rents  be- 
longed to  the  testator's  heir-at-law  : — Held,  fur- 
ther, that  the  doctrine  of  attraction,  as  established 
by  Qenery  v.  Fitzgerald  ( Jac.  468)  and  Bumble, 
In  re,  Williams  v.  Murrell  (23  Ch.  D.  360),  did 
not  apply.  Williams,  In  re,  Spencer  v.  Brig- 
house,  64  L.  T.  831— Chitty,  J. 

Contingent  Legacy— Direction  to  Set  Apart- 
Intermediate  Income.] — A  testator  appointed 
executors  and  trustees,  and  bequeathed  to  his 
trustees  the  sum  of  7502.  upon  trust  to  pay  and 
divide  the  same  amongBt  certain  persons  con- 
tingently upon  their  surviving  him  and  attain- 
ing twenty-one;  and  in  default  of  any  such 
person  attaining  a  vested  interest  he  directed 


2123 


WILL — Construction. 


2124 


that  the  750/.  and  the  investments  representing 
the  same  should  fall  into  his  residuary  personal 
estate;  and  he  gave  his  residue  not  therein- 
before otherwise  disposed  of  to  his  trustees  upon 
trust  to  convert  the  same,  and  out  of  the  moneys 
thereby  arising  pay  his  debts  and  legacies,  and 
invest  the  residue  of  the  same  moneys,  and  pay 
the  income  to  his  wife  for  life.  The  persons 
contingently  interested  in  the  750/.  were  infants  : 
—Held,  that  as  the  750/.  was  by  the  terms  of  the 
will  directed  to  be  set  apart  for  the  benefit  of 
the  contingent  legatees,  there  was  a  gift  to  them 
of  the  intermediate  income,  which  was  therefore 
applicable  for  their  maintenance.  Medlock,  In 
re,  Ryffle  v.  Medlock,  55  L.  J.,  Ch.  738 ;  54  L.  T. 
828— Kay,  J. 

A  testator  by  will,  after  giving  his  real  and 
personal  estate  to  trustees  upon  trust  for  sale 
and  conversion  and  payment  of  debts  and 
legacies,  directed  the  trustees  to  stand  possessed 
of  the  residue  of  the  trust  moneys  upon  trust, 
in  the  first  place,  to  pay  thereout  1,500/.  to  be 
equally  divided  between  such  of  six  legatees 
whom  he  named  as  should  be  alive  at  the  death 
of  A.  B. ;  such  shares  to  be  paid  to  them  respec- 
tively on  attaining  twenty-one  or  marriage. 
And  as  to  the  rest  of  his  residuary  estate  upon 
trust  for  X.  T.  A.  B.  and  the  six  legatees  all 
survived  the  testator  and  were  still  living.  The 
trustees  having  set  apart  and  invested  1,500/.  to 
meet  the  legacy,  X.  Y.,  the  six  legatees,  and  the 
next  of  kin  of  the  testator,  all  claimed  to  be  entitled 
to  the  income  thereof  during  the  life  of  A.  B. : 
— Held,  that  such  income  passed  under  the  gift 
of  the  rest  of  the  testator's  residuary  estate,  and 
that  X.  Y.  was  entitled  thereto  during  the  life 
of  A.  B.  Judkin'a  Trusts,  In  re9  25  Ch.  D.  7,43  ; 
53  L.  J.,  Ch.  496 ;  50  L.  T.  200 ;  32  W.  R.  407— 
Kay,  J. 

Where  a  contingent  deferred  legacy  has  been 
severed  from  the  general  estate  of  the  testator, 
such  severance  will  not  entitle  the  legatee  to 
interim  interest  thereon  unless  the  severance 
has  been  necessitated  by  something  connected 
with  the  legacy  itself.    lb. 

Jurisdiction  of  Court  to  allow  Maintenance 
— Tenant  for  Life.] — A  testator  directed  the 
income  of  his  real  and  personal  estate  to  be 
accumulated  for  twenty-one  years,  and  gave  the 
accumulated  estates  to  his  sister  J.  C.  for  life, 
then  to  her  son  W.  for  life,  and  after  his  decease 
to  his  children  in  tail  male,  and  then  to  her  son 
J.  for  life,  and  then  to  her  son  A.  in  tail  male. 
The  court  directed  an  annual  sum  to  be  paid  to 
J.  C.  out  of  the  income  of  the  personal  estate  for 
the  maintenance  and  education  of  her  three 
sons.  Havelock  v.  Havelock  (17  Ch.  D.  807) 
followed.  Collins,  In  re,  Collins  v.  Collins,  32 
Ch.  D.  229 ;  55  L.  J.,  Ch.  672 ;  56  L.  T.  21 ;  34 
W.  R.  660  ;  60  J.  P.  821— Pearson,  J. 

Where  a  testator  has  by  his  will  made  a  settle- 
ment of  his  estate,  subject  to  a  prior  trust  for 
the  accumulation  of  the  whole  income  during  a 
term  of  years  not  exceeding  the  legal  limit,  the 
court  has,  in  the  absence  of  special  circumstances, 
no  jurisdiction  to  order  an  allowance  to  be  paid 
out  of  the  income  for  the  maintenance  and 
education  of  the  person  who  will,  if  he  is  living 
at  the  end  of  the  term,  be  a  tenant  for  life,  even 
if  there  is  no  other  way  in  which  a  provision 
can  be  made  for  his  maintenance  and  education. 
Havelock  v.  Havelock  (17  Ch.  D.  807)  distin- 
guished.    Alford,  In  re,  Hunt,  or   Hurst  v. 


Parry,  32  Ch.  D.  383 ;  55  L.  JM  Ch.  659 ;  54 
L.  T.  674  ;  34  W.  R.  773— Pearson,  J. 

A  testator  devised  his  real  estate  to  trustees  for 
a  term  of  twenty  years  after  his  death,  and,  after 
the  expiration  of  the  term,  and  in  the  meantime 
subject  thereto,  to  the  use  of  the  plaintiff  for 
life,  with  remainder  to  the  use  of  nis  first  and 
other  sons  successively  in  tail,  with  remainders 
over.  Under  the  trusts  of  the  term  the  rents 
were  to  be  accumulated  for  a  period  of  twenty 
years  after  the  testator's  death.  The  income  of 
the  testator's  residuary  personalty  was  subject  to 
a  similar  trust.  At  the  end  of  the  twenty  yean 
the  residuary  personalty  and  the  accumulations 
of  the  income  and  of  the  rents  were  to  be  hud 
out  in  the  purchase  of  real  estate,  which  was 
limited  to  the  same  uses.  The  will  contained  no 
provision  for  the  maintenance  of  the  plaintiff 
during  the  term.  He  was  not  the  heir-at-law  of 
the  testator,  but  he  was  the  eldest  son  of  a 
favourite  niece  of  the  testator,  who  had  before 
her  marriage  lived  a  good  deal  with  him  and  had 
been  educated  at  his  expense.  The  testator  was 
a  tenant-farmer.  The  rental  of  his  real  estate 
was  about  440/.  per  annum ;  his  personal  estate 
was  about  10,000/.  An  order  had  been  made  in 
the  action  allowing  300/.  a  year  for  the  main- 
tenance and  education  of  the  plaintiff  during  his 
minority.  After  he  had  attained  twenty -one  the 
plaintiff  applied  for  the  continuance  of  the 
allowance  until  further  order  : — Held,  thatT 
there  being  no  special  circumstances,  there  was 
no  jurisdiction  to  interfere  any  further  with  the 
trust  for  accumulation.    lb. 

A  testator  devised  to  trustees  real  estate,  pro- 
ducing an  estimated  income  of  1,300/.  a  year,  in 
trust  to  accumulate  the  rents   and  profits  at 
compound  interest  for  a  term  of   twenty-one 
years,  and  at  the  end  of  the  said  term,  or  as  soon 
as  circumstances  would  permit,  to  lay  out  toe 
accumulations  in  the  purchase  of  lands,  to  be 
settled  subject  to  the  said  trust  term  to  the  use 
of  A.  for  life ;  remainder  to  B.,  the  eldest  son  of 
A.,  for  life ;   remainder  to  B.'s  first  and  other 
sons  in  tail  male;  remainder  to  A.'s  younger 
sons  (then  in  being)  successively  for  life ;  with 
like  remainders  to  their  first  and  other  sons  in 
tail  male  respectively ;  with  several  remainders 
over.    The  testator  also  bequeathed  his  residuary 
personal  estate  (which  was  above  the  value  of 
58,000/.)  in  trust  to  be  invested  in  the  purchase 
of  lands,  to  be  settled  to  the  like  uses  as  were 
thereinbefore  directed  in  relation  to  the  accumu- 
lations of  the  rents  and  profits  of  the  lands 
comprised  in  the  term.     The  directions  as  .to 
accumulation  contained  in  the  will  were  repeated 
in  the  codicils.     A.'s  sons  were  minora.     An 
application  was  made  on  behalf  of  the  eldest  for 
an  allowance  to  A.  out  of  the  rent,  profits,  and 
income  for  the  maintenance  of  the  sons,  on  the 
ground  that  A.'s  own  means  were  not  sufficient 
to  enable  him  to  educate  and  maintain  them 
suitably  to  their  prospective  position :— Held, 
that  as  there  was  an  imperative  trust  to  accumu- 
late, the  court  could  not  make  an  allowance  for 
maintenance.    Havelock  v.  Havelock  (17  Ch.  D. 
807)  not  followed.    Kcmmis  v.  Kemvus,  15  L.  B^ 
Ir.  90— C.  A. 


vi.  Apportionment  of  Gain  and  Lota. 

Trust  for  Conversion — Power  to  Postpone— 
Property  falling  in  after  Testator*!  Death.  J— 


2125 


WILL — Construction. 


2126 


Where  a  testator  has  bequeathed  his  residuary 
personal  estate  to  trustees  upon  trust  for  con- 
Tersion,  with  power  to  postpone  such  conversion 
at  their  discretion,  and  to  hold  the  proceeds 
upon  trust  for  a  person  for  life  with  remainders 
orer,  and  such  residue  includes  outstanding  per- 
sonal estate,  the  conversion  of  which  the  trustees, 
in  the  exercise  of  their  discretion,  postpone  for 
the  benefit  of  the  estate,  and  which  eventually 
falls  in  some  years  after  the  testator's  death — as, 
for  instance,  a  mortgage  debt  with  arrears  of 
interest,  or  arrears  of  an  annuity  with  interest, 
or  moneys  payable  on  a  life  policy — such  out- 
standing personal  estate  should,  on  falling  in, 
be  apportioned  as  between  capital  and  income, 
by  ascertaining  the  sum  which,  put  out  at 
interest  at  4  per  cent,  per  annum,  on  the  day 
of  the  testator  8  death,  and  accumulating  at  com- 
pound interest  calculated  at  that  rate  with  yearly 
rests  and  deducting  income  tax,  would,  with  the 
accumulations  of  interest,  have  produced,  at  the 
day  of  receipt,  the  amount  actually  received ; 
and  the  sum  so  ascertained  should  be  treated  as 
capital,  and  the  residue  as  income.  Chesterfield's 
(Earl)  Trusts,  In  re,  24  Ch.  D.  648  ;  52  L.  J., 
Ch.  958  ;  49  L.  T.  261  ;  32  W.  R.  361— Chitty, 
J.  8.  P.,  Beavan  v.  Beavan,  24  Ch.  D.  649,  n. ; 
52  L.  J.,  Ch.  961,  n. ;  49  L.  T.  263,  n. ;  32  W.  B. 
363,  n.— Romilly,  M.  R. 

Contingent  Reversionary  Interest — Capital 
and  Inoome.]  —  A  testator  by  his  will  be- 
queathed his  residuary  personal  estate  upon 
trust,  after  payment  of  debts  and  legacies,  to 
lay  out  and  invest  the  residue  as  therein  men- 
tioned, and  to  pay  the  income  to  the  plaintiff  for 
life,  with  remainders  over.  Part  of  the  residuary 
estate  consisted  of  a  contingent  reversionary  in- 
terest in  some  settled  funds.  The  testator  died 
in  1832,  and  the  reversion  first  became  saleable 
in  1846,  but  it  had  never  been  sold.  Since  1846 
the  reversion  had  enormously  increased  in  value. 
Upon  an  application  in  effect  to  have  the  value 
of  the  reversion  apportioned  as  between  tenant 
for  life  and  remainderman : — Held,  that  the 
principle  of  Chesterfield's  Trusts,  In  re  (24 
Ch.  IX  648),  applied,  and  that  assuming  the 
reversion  to  have  been  sold  at  an  agreed  price, 
it  must  be  ascertained  what  principal  sum  would, 
with  compound  interest  from  the  date  of  the 
testator's  death,  make  up  the  agreed  price,  and 
such  principal  sum  alone  must  be  attributed  to 
corpus,  and  the  whole  of  the  rest  to  income. 
Hooson,  In  re.  Walker  v.  Appaeh,  55  L.  J.,  Ch. 
422  ;  53  L.  T.  627  ;  34  W.  R.  70— Kay,  J. 

Apportionment  Act.] — See  Apportionment. 

Inoidenoe  of  Loss — Power  to  continue  Busi- 
ness.]— A.  gave  all  his  real  and  personal  estate 
to  trustees  upon  trust  for  sale,  conversion  and 
investment,  and  to  pay  the  income  of  one-fifth 
part  to  his  wife  for  life,  and  subject  thereto,  to 
divide  the  whole  into  four  parts,  and  pay  the 
income  of  one  such  part  to  each  of  his  four 
daughters  for  life,  and  after  her  death  to  hold 
such  part  in  trust  for  her  children  equally. 
And  he  empowered  his  trustees  to  carry  on  any 
business  carried  on  by  him,  and  directed  that 
the  net  profits  of  any  business  so  carried  on 
should,  except  such  parts  thereof  as  the  trustees 
should  in  their  discretion  reserve  for  the  purpose 
of  increasing  the  capital  in  such  business,  be 
treated  as  income  of  his  said  trust  estate.    And 


he  directed  that,  should  any  losses  (not  being 
the  result  of  neglect)  fall  on  his  trustees  in  con- 
sequence of  their  carrying  on  such  business,  the 
same  should  be  defrayed  out  of  his  estate.  The 
testator  left  property  employed  in  business,  and 
other  property.  The  trustees  carried  on  the 
business,  and  duly  invested  the  other  property. 
For  some  years  the  business  was  successful,  and  the 
profits  were  duly  divided  among  the  tenants  for 
Life.  In  a  subsequent  year  losses  were  incurred, 
and  the  trustees  claimed  that  they  should  be 
recouped  out  of  the  income  of  the  trust  estate 
generally : — Held,  that  the  losses  must  be  borne 
by  the  capital  of  the  testator's  estate,  and  not  by 
the  tenants  for  life.  Milliehamp,  Goodale  and 
Bullook,  In  re,  52  L.  T.  758 — Pearson,  J. 


Bequest  of  Share  of  Business.] — A  trader 


devised  and  bequeathed  to  trustees  all  his  real 
and  personal  estate,  including  his  share  in  the 
business  in  which  he  was  a  partner,  on  trust  as  to 
one  moiety  thereof,  to  pay  the  annual  proceeds 
("including  the  net  profits  of  the  business)  to  his 
daughter  for  her  life,  for  her  separate  use  with- 
out power  of  anticipation,  and  after  her  death 
the  moiety  was  to  be  held  in  trust  for  her  children 
or  remoter  issue.  He  directed  his  trustees  to 
carry  on  the  business  after  his  death  until  the 
expiration  of  the  partnership  term,  and  authorised 
them  to  use,  not  only  such  capital  as  he  should 
have  in  the  business  at  the  time  of  his  death,  but 
also  such  other  part  of  the  trust  premises  as  they 
should  think  fit.  The  partnership  deed  autho- 
rised the  partners  to  dispose  of  their  shares  by 
will ;  it  did  not  provide  how  any  loss  in  carrying 
on  the  business  should  be  borne.  The  will  con- 
tained no  provision  as  to  the  mode  in  which  any 
loss  should  be  borne  as  between  the  persons 
interested  in  the  testator's  estate.  It  had  been 
the  practice  of  the  firm  in  prosperous  years  to 
divide  the  whole  profit  among  the  partners,  and 
in  years  in  which  there  was  a  loss  to  write  off 
each  partner's  proportion  of  the  loss  from  his 
share  of  the  capital.  The  testator  died  in  1879. 
After  his  death  the  business  was  carried  on  by 
his  trustees  in  partnership  with  the  other  part- 
ners. Up  to  the  end  of  1880  it  .was  carried  on 
at  a  profit,  and  half  the  testator's  share  of  that 
profit  was  paid  by  the  trustees  to  the  daughter. 
For  the  year  1881  there  was  a  loss,  and  the 
testator's  share  of  the  loss  was  written  off  from 
his  share  of  the  capital  in  the  books  of  the  firm. 
For  the  year  1882  there  was  a  profit : — Held, 
that  the  daughter  was  entitled  to  receive  half 
that  share  of  the  profits  which  the  testator, 
according  to  the  practice  of  the  firm,  would 
have  received  if  he  had  been  alive,  and  that, 
consequently,  she  was  entitled  to  receive  half 
his  share  of  the  profits  for  the  year  1882,  with- 
out any  deduction  for  the  purpose  of  making 
good  the  corpus  of  the  settled  share  in  the 
interest  of  the  remaindermen.  Goto  v.  Foster, 
26  Ch.  D.  672  ;  51  L.  T.  394 ;  32  W.  R.  1019— 
Pearson,  J. 


vii.    Other  Points  aa  to  Payment. 

Advance  by  Parent  to  Child — Interest  on  Pay- 
ment of  Inoome  to  Widow — Hotchpot  Clause.] — 
A  testator  had  advanced  by  way  of  loan  to  the  de- 
fendant, one  of  his  children,  a  sum  of  2,000/.,  upon 
which  sum  interest  was  paid  during  the  testator's 
lifetime.  The  testator  by  his  will,  devised  and  be- 


A 


2127 


WILL — Construction. 


2128 


queathed  his  property,  both  real  and  personal,  to 
trustees  on  trust  to  permit  his  widow  to  receive 
the  income  actually  produced  by  such  property, 
however  constituted  or  invested,  during  widow- 
hood, and  subject  thereto  on  trust  for  his  child, 
if  only  one,  or  all  his  children  equally  if  more 
than  one,  who  being  a  son  or  sons  should  attain 
the  age  of  twenty-one  years,  or  being  a  daughter 
or  daughters  should  attain  that  age  or  marry. 
The  will  contained  a  proviso  that  any  ad- 
vances made  by  the  testator  to  any  child  or  to 
the  husband  of  any  child  in  his  lifetime,  together 
with  interest  on  such  advances,  as  charged 
against  such  child  or  her  husband  in  his  private 
memorandum  book  in  his  own  handwriting, 
should,  according  to  the  amount  thereof,  be 
taken  in  full  or  in  part  satisfaction  of  his  or  her 
share  in  the  testator's  property,  unless  the  tes- 
tator should  otherwise  declare  by  writing  under 
his  hand.  The  sum  advanced  to  the  defendant 
was  charged  against  him  in  the  testator's  memo- 
randum book,  and  such  book  contained  an 
entry  as  follows  : — "  This  is  the  memorandum 
book  named  in  my  will  as  containing  the  ad- 
vances made  by  me  to  my  children  or  their 
husbands  to  be  taken  in  satisfaction  of  their 
respective  shares  in  my  estate  "  : — Held  (Cotton, 
L.J.,  dissenting),  that  the  testator's  widow  was 
entitled  to  receive  from  the  defendant  during 
her  life,  as  part  of  the  annual  income  given  to 
her  by  the  will,  interest  on  the  said  sum  of  2,000/. 
Limpu4  v.  Arnold,  15  Q.  B.  D.  300  ;  54  L.  J., 
Q.  B.  85  ;  33  W.  B.  537— C.  A. 

Deferred  Payment— Substitutional  Legacy.] — 
By  his  will  a  testator  bequeathed  10,0002.  upon 
trust  for  A.  for  life,  and  after  her  decease  for 
eight  persons  named,  in  certain  proportions, 
among  whom  was  B.,  who  was  to  receive  1,000/. ; 
by  a  codicil  to  his  will  the  testator  gave  to  B. 
"  2,000/.  instead  of  1,000/.  as  bequeathed  by  my 
said  will "  : — Held,  that,  following  the  general 
rule,  the  legacy  by  the  codicil  being  given  in- 
stead of  that  by  the  will,  was  subject  to  the 
same  incidents,  and  the  payment  must  be  de- 
ferred until  after  the  death  of  A.  Colyer,  In  re, 
Millikin  v.  Snelling,  55  L.  T.  344— Kay,  J. 

Direction  to  appropriate  Fund— Deficiency  in 
Income— Besort  to  Capital.]— A  testator,  after 
giving  various  pecuniary  legacies,  bequeathed  to 
Various  persons  annuities  of  1/.  a  week,  and  he 
directed  sufficient  funds  to  be  appropriated  in 
the  name  of  his  trustee  out  of  his  personal 
estate  to  answer  by  means  of  the  income  the 
payment  of  the  annuities,  and  he  directed  that 
on  the  dropping  of  the  annuities  the  appro- 
priated funds  should  follow  the  distribution  of 
Lis  residuary  personal  estate.  The  income  of 
the  personal  estate,  after  payment  of  the  pecu- 
niary legacies,  was  insufficient  to  pay  the  annui- 
ties :— Held,  that  the  annuities  were  payable, 
so  far  as  necessary,  out  of  the  capital  of  the 
estate.  Taylor,  In  re,  IUtley  v.  Handall,  53 
L.  J.,  Ch.  1161;  50  L.  T.  717;  33  W.  R.  18— 
Pearson,  J. 

Annuity  free  of  Legacy  Duty — Deficient  Estate 
— Abatement  of  Annuities.] — When  a  testator's 
estate  is  insufficient  (after  payment  of  his  debts) 
to  pay  in  full  annuities  given  by  his  will,  the 
fund  must  (after  payment  of  costs)  be  appor- 
tioned between  the  annuitants  in  the  proportion 


which  the  sum  composed  of  the  arrears  of  the 
annuity  in  each  case  plus  the  present  value  of 
the  future  payments  bear  to  each  other,  and  this 
rule  applies  in  a  case  in  which  the  annuitants 
are  all  living  at  the  time  of  distribution.  A  tes- 
tator gave  an  annuity  of  150/.  to  bis  widow,  sod 
an  annuity  of  100/.  to  a  stranger  in  blood,  and  be 
directed  that  the  second  annuity  should  be  paid 
free  of  legacy  duty,  which  should  be  paid  out  of 
his  estate.  After  payment  of  his  debts,  the  estate 
was  insufficient  to  pay  the  annuities  in  foil:— 
Held,  that  (after  payment  of  costs)  the  fond 
must  be  apportioned  as  above  between  the  two 
annuitants;  that  the  legacy  duty  payable  on 
the  sum  apportioned  to  the  second  annuitant 
must  be  deducted  from  the  whole  fund,  and  the 
balance  then  divided  in  the  same  proportion 
between  the  two  annuitants.  Heath  v.  Xw§at 
(29  Beav.  266)  followed.  Wilkiitt.  In  re,  WUkini 
v.  Rotherham,  27  Ch.  D.  703  ;  54  L.  J.,  Ch.  188 ; 
33  W.  B.  42— Pearson,  J. 

Bequest  subject  to  Payment  of  Debts— In- 
adequacy of  Estate  —  Legatee  not  personally 
Liable.] — A  testator  gave  all  his  interest  in 
certain  leasehold  farms  mentioned  in  his  will, 
and  all  the  stock  of  every  description  thereon, 
and  also  all  moneys  due  to  him,  to  his  son, 
subject  nevertheless  to  the  payment  of  all  his 
debts,  funeral  and  testamentary  expenses.  The 
testator's  son  continued  in  possession  and  re- 
ceipt of  the  profits  of  the  farms  for  about  three 
years,  when  the  leases  of  the  farms  and  the  stock 
thereon  were  disposed  of.  The  testators  estate 
was  very  involved,  and  the  liabilities  to  be  dis- 
charged by  the  son,  under  the  terms  of  the  will, 
and  as  a  condition  of  his  accepting  the  bequest, 
greatly  exceeded  the  value  of  the  bequest:— 
Held,  that  the  son  must  be  deemed  to  have 
elected  to  accept  the  bequest  contained  in  the 
will,  subject  to  the  payment  of  debts,  funeral 
and  testamentary  expenses ;  but  he  was  not  per- 
sonally liable  to  pay  the  same.  Cowley,  In  re, 
Souch  v.  Cowley,  53  L.  T.  494— Kay,  J. 

Bequests  "  free  of  Legacy  Duty."]  —  Set 
Revenue,  III.  7. 


WINDFALLS. 


See  TIMBER 


WINDING  UP. 


See  company. 


WINDOWS. 

See  EASEMENT. 


2129 


WORDS. 


2180 


WINE. 

See  INTOXICATING  LIQUORS. 


WITNESS. 

In  Bankruptcy  Cases.]— &?*  Bankeuftcy. 
In  Criminal  Gases.]— See  Criminal  Cases. 
Li  Other  0mm.]— See  Evidence. 


"  At  or  before."]— &e  Tunnel  Mining  Com* 
pany,  In  re,  ante,  col.  446. 

"At  Ship's  Risk." ]—SeeNottebohmv.Richter, 
ante,  col.  1664. 


"  At  Merchant's 
lish,  ante,  col.  1664. 


"]—/&«  Burton  v.  Eng- 


44  At  the   Wreck."]— See  Difiori  v.   Adams, 
ante,  col.  1011. 


WOMEN. 

Criminal  Law  Relating  to.]— See  Chimin al 
Law. 

Other  Matters  Relating  to.]— See  Husband 
and  Wife. 


WORDS. 

In  Testamentary  Instruments.]— See  Will. 

44  About."]— See  Alcock  ▼.  Leeuto,  ante,  coL 
1664. 

"Acting  under  the  Public  Health  Act."]— 
See  Lea  v.  Facey,  ante,  col.  878. 

44  Action."]  —  See  Colli*  v.  Lewie,  ante,  col. 
668. 

44  Actually  Enjoyed."] — See  Cooper  v.  Straker, 
ante,  coL  677. 

"Allowances."]  —  See  Whiteley  v.  Barley, 
ante,  coL  876. 

44  And  »>  44  Or."]— See  Mersey  Bocks  v.  Hender- 
son, ante,  col.  1717. 

44  Annual  Profits  or  Gains."] — See  ante,  cols. 
1667-1570. 

44  Annual  Value."]  —  See  Stevens  v.  Bishop, 
ante,  col.  1571,  and  cases  ante,  cols.  1965, 1966. 

"Appurtenances."]  —  See  Thomas  v.  Owen, 
ante,  col.  672. 

44  As  far  as  is  Reasonably  Practicable."]  — 
See  Wales  v.  Thomas,  ante,  col.  1229. 

44  Assignee."] — See  Ward,  In  re,  ante,  col. 
1754,  and  Ingle  v.  McCutchan,  ante,  col.  1782. 

41  At  and  from  Port."]— See  Colonial  Insur- 
ance Company  v.  Adelaide  Marine  Insurance 
Company,  ante,  col.  1011. 


44 At  Risk  of  Craft  until  Safely  Landed."]— 
See  Houlder  v.  Merchants'  Marine  Insurance 
Company,  ante,  col.  1011. 

44  Beer."] — See  Howorth  v.  Minns,  ante,  col. 
1047. 

"Beneficial  Owner."]  —  See  Stanford,  Ex 
parte,  Barber,  In  re,  ante,  coL  288. 

4  4  Building."  ]—8ee  Harris  v.  Be  Pinna,  ante, 
col.  678. 

44  Case  or  Canister."]— See  Foster  ▼.  Diphwys 
Casson  Slate  Company,  ante,  col.  1229. 

44  Carry  on  Business."]— See  Lewis  ▼.  Graham, 
ante,  coL  1202. 

44  Cause  of  Aetion."]  —  See  Read  v.  Brown, 
ante,  coL  5. 

44  Cause  then  Pending."]  —  See  BosweU  ▼. 
Coahs,  ante,  col.  1395. 

44  Cause  or  Matter  relating  to  Real  Estate."] 
— See  ante,  coL  1488. 

44  Cause.  Shown."]  —  See  Newitt,  Ex  parte , 
Mansel,  In  re,  ante,  col.  92. 

44  Causing  or  Permitting."]  —  &0  Midland 
Railway  v.  Freeman,  ante,  col.  17. 

44  Charge  or  Control."]  —  See  Qibbs  v.  Cheat 
Western  Railway,  ante,  col.  1193. 

44  Colonial  Wines."]  —  See  Commissioners  for 
Railways  v.  Hyland,  ante,  col.  319. 

44  Common  to  the  Trade/*]— See  ante,  col.  1846. 

44  Continuing  Trustees."]— &«  ante,  coL  1913. 

44  Copartnership."] — See  Reg.  v.  Robson,  ante, 
col.  667. 

44  Costs  of  Execution."]— See  Ludford,  In  re, 
and  Conder,  Ex  parte,  ante,  coL  1644. 

44  Concerned  or  interested  in  Contract."] — 
See  ante,  col.  876. 

44  Criminal  cause  or  matter."]  —  See  cases, 
ante,  coL  22  et  seq. 

44  Damage  by  Collision."]  —  See  Robson  v. 
Owner  of  the  Kate,  ante,  col.  1720. 

44  Dangeri  and  Accidents  of  the  8ea  or  Ravi- 
gation."] — See  Qarston  Sailing  Ship  Company 


2181 


WORDS. 


2182 


v.  Hiokie,  ante,  col.  1668;  Wilson  v.  The 
Xantho,  ante,  col.  1661 ;  Hamilton  v.  Pandorf 
ante,  col.  1668,  and  The  Qlenfruin,  ante,  col. 
1661. 

"Debenture."]— See  ante,  col.  368. 

"Debt  or  Liability.1']  —See  Linton,  Ex  parte, 
ante,  col.  143. 

"  Defeasance."]—  See  Consolidated  Credit  Co. 
v.  Gosney,  ante,  col.  250. 

4  <  Defeot  in  Condition  of  Wayi  or  Machinery."  ] 
— See  ante,  cols.  1194  et  seq. 

"Dilution."]—  See  Croft*  v.  Taylor,  ante, 
col.  1661. 

"  Divisible  Assets."  ]  -See  Mysore  Reefs  Gold 
Mining  Company,  ante,  col.  420. 

"Distinctive  Device."] — See  cases  ante,  cols. 
1840  et  seq. 

41  Domestio  Animals."]—  See  Colam  v.  PageUp 
ante,  coL  15. 

"Drain."] — See  Bateman  v.  Poplar  Board 
of  Works,  ante,  col.  1216,  and  Croft  v.  Rickmans- 
worth  Highway  Board,  ante,  col.  1978. 

"  Drunken  Person."] — See  Cundy  v.  Le  Cocg, 
ante,  col.  1054. 

"  Due  Cause."] — See  Adam  Eyton,  In  re, ante, 
coL  421. 

"Dwelling-bouse."]—  See  Wriaht  v.  Wallasey 
Local  Board,  ante,  col.  697,  ana  Cooke  v.  New 
River  Company,  ante,  col.  1964. 

"Due  Segard."] — See  Hemsworth  Grammar 
School,  In  re,  ante,  coL  314. 

"Dumb  Barge."]— See  Gapp  v.  Bond,  ante, 
col.  1658,  and  Hedges  v.  London  Booh  Company, 
ante,  coL  1717. 

"  Event."]— See  ante,  cols.  520,  530. 

"  P.  0.  B."]— See  Stock  v.  Inglis,  ante,  col. 
1581. 

"Fair  Criticism."]— See  Merivalev.  Carson, 
ante,  col.  634. 

"Fancy  Word."]— See  cases  ante,  cols.  1838 
et  seq. 

"Final  Judgment "]— &*  ante,  col.  105. 

"Finally  Sailed  from  her  Last  Port"]— See 
Price  v.  Livingstone,  ante,  col.  1673. 

"  For  and  on  Behalf  of."]— See  West  London 
Commercial  Bank  v.  Kitson,  ante,  col.  1519. 

"For  the  Purposes  of  the  Act"] — See  Grand 
Junction  Canal  Company  v.  Petty, ante,  coL  1974. 

14  Formal  Defect."]— See  Johnson,  Ex  parte, 
Johnson,  In  re,  ante,  col.  102. 


"  Forthwith."]— See  Furber  v.  Cobb,  ante, 
col.  251,  and  Lowe  v.  Fox,  ante,  coL  1825. 

"  Free  of  Legacy  Duty."]— See  ante,  col  1578. 

"Free  from  all  Deductions."]— See  Hi§giu, 
In  re,  Day  y.  Turnell,  ante,  col.  1576. 

"Free  from  Particular  Average  under  Thres 
per  Cent"]—  See  Stewart  v.  Merchants' Marine 
Insurance  Company,  ante,  coL  1015. 

"Future  Debt  or  Liability."]  —  See  Linton, 
Ex  parte,  Linton,  In  re,  ante,  col.  143. 

"  Frequenting."]  —See  Clark  v.  Regn  ante, 
col.  1925. 

"Frost  Preventing  the  Loading."]— Set 
Grant  v.  Coterdale,  ante,  col.  1678. 

"  General  Line  of  Building."]— See  Spaekma* 
v.  Plumstead  Board  of  Works,  ante,  coL  1210. 

"Good  Cause."]— See  ante,  coL  521. 

"  Goods."]— See  Reg.  v.  Slade,  ante,  coL  18. 

"Heirs  or  Assigns."]—  See  Bynevor  (Lord) 
v.  Tennant,  ante,  col.  674. 

"House."]— See  Kerford  v.  Seacombe,  ftn 
Railway  and  Barnes  v.  Southsea  Railway, nnte, 
col.  1116,  and  Wright  v.  Ingle,  ante,  coL  1218. 

"  If  he  shall  think  fit."]— See  Abergaeesmn 
(Marquis)  v.  Llandaff (Bishop),  ante,  coL690. 

"  In  Port."]— See  Hunter  v.  Northern  Marine 
Insurance  Company,  ante,  coL  1010. 

"  In  lieu  of."]— See  Reg.  v.  Sussex  Count) 
Court  Judge,  ante,  col.  110. 

"  Incendiarism."] — See  Walker  v.  London  tad 
Provincial  Insurance  Company,  ante,  coL  1007. 

"  Incidental  to."]— See  Llewellin,  In  re,  ante, 
col.  1634. 

"  Improper  navigation  of  Ships."]— See  Cur- 
michael  v.  Liverpool  Sailing  Ship  Owners*  As- 
sociation, ante,  ooL  1012. 

"In  or  Hear."]— See  Att.-Gen.  v.  Homer, 
ante,  col.  1179. 

"  In  or  At"]— See  Bownshire  (Marquis)  v. 
O'Brien,  ante,  col.  1179. 

"  Income."] — See  Benwcll,  Ex  parte,  Hmtt**, 
In  re,  and  Webber,  Ex  parte,  ante,  coL  133. 


(i 


Injuriously  affecting."]— See  ante,  coL  1118. 


«( 


Innocent   Shippers."]  —  See   Brooking  t. 
Maudslay,  ante,  col.  1019. 

"  Interest  in  Land."]— See Latery  t.  PmrsssU, 
ante,  coL  472;  Thomas,  In  re,  Thomas  r. 
Howell,  ante,  col.  919. 


(< 


Interested  in  Contract."]— See  ante.  ooL  871 


2133 


WORDS. 


2134 


"  Interval  of  not  leu  than  Fourteen  Days."] 
—See  The  Railway  Sleepers  Supply  Company, 
In  re,  ante,  coL  1825. 

"  Intimidation."] — See  Judge  v.  Bennett,  ante, 
col.  667. 

"  Judgment  or  Order."]  —  See  Haslam  En- 
gineering Company  v.  Hall,  ante,  27. 

"Iisue  any  Mote."]— See  Att.-Gen.  v.  Birkr 
bsck,  ante,  coL  81. 

"Land."]—  Sec  Wright  v.  Ingle,  ante,  col. 
1218. 

"Last  Place  of  Abode."]— See  cases  ante, 
col.  212. 


1103. 


."] — See  Swain  v.  Ayres,  ante,  col. 


"  Legal  Motioe  to  Quit."]— See  Friend  v.  Shaw, 
ante,  coL  547. 

"Lodger."] — See  Heawood  v.  Bone,  ante,  c*l. 
1097. 

"Lower  Bates."] — See  Glasgow  and  South- 
western Railway  v.  Maekinnon,  ante,  col.  292. 

"Maliciously."] — See  Reg.  v.  Latimer,  ante, 
coL  582. 

"Means  to  Pay."] — See  Koster,  Ex  parte, 
Park,  In  re,  ante,  coL  608. 

"Minerals."]— See  Midland  Railway  v.  Ro- 
binson, ante,  col.  1546 ;  Glasgow  (Lord  Provost) 
t.  Farie,  ante,  col.  1226  ;  and  Att.-Gen.  v.  Welsh 
Granite  Company,  ante,  col.  1225. 

"Moderate  Speed."]  —  See  cases  ante,  coL 
1686. 

"Molestation."]  —  See  Fearon  v.  Aylesford 
{Earl),  ante,  col.  912. 

"  Mominee."]— See  Vrquhart  v.  Butterfield, 
ante,  coL  599. 

"Obtaining  Credit"]— See  Reg.  v.  Peters, 
ante,  coL  187. 

"Open  Court"] — See  Ktnyon  v.  Eastwood, 
ante,  col.  549. 

"Or  Otherwise."] — See  Landergan  v.  Feast, 
ante,  col.  1426,  and  Driffield  Linseed  Cake 
Company  v.  Waterloo  Mills  Cake  Company, 
ante,  col.  1353. 

"Order."] — See  Reg.  v.  Edwards,  ante,  col. 
1122. 

"  Or  "  "  And."]— See  Mersey  Docks  v.  Hender- 
son, ante,  col.  1717. 

"  Ordinary  course  of  Post."] — See  Child's  v. 
Cox,  ante,  coL  713. 

"Ornaments  and  Separations."]— &<?  Pala- 
tine Estate  Charity,  In  re,  ante,  col.  810. 


"  Owing."  V-See  Faure  Electric  Accumulator 
Company  v.  Phillipart,  ante,  col.  393. 

"Owner."]  —  See  Reg.  v.  St.  Marylebone 
Vestry,  ante,  col.  60;  Williams  v.  Wands- 
worth Board  of  Works,  ante,  col.  1219  ;  Wright 
y.  Ingle,  ante,  col.  1218,  and  St.  Helen's  {Mayor) 
v.  Kirkham,  ante,  col.  866. 

"  Passenger  Trains."] — See  Burnett  v.  Great 
North  of  Scotland  Railway,  ante,  col.  1543. 

"Pending  Aotion."}— &£  Cropper  Y.Smith, 
ante,  coL  1342. 

"  Perils  of  the  Sea,  and  all  other  Perils."]— 
See  Thames  and  Mersey  Marine  Insurance 
Company  v.  Hamilton,  ante,  col.  1012. 

"Person.*'] — See  Union  Steamship  Co.  v.  Mel- 
bourne Harbour  Commissioners,  ante,  col.  321. 

"Person  aggrieved."]  —  See  cases,  ante,  col. 
201 ;  Ralph's  Trade  Mark,  In  re,  and  Riviire's 
Trade  Mark,  In  re,  ante,  col.  1853  ;  Poulton,  Ex 
parte,  ante,  col.  505  ;  Garrett  v.  Middlesex  J  J., 
ante,  col.  1052  ;  and  Reg.  v.  Andover,  ante,  col. 
1057. 


"  Personal 
ante,  col.  133. 


,»]—&*    Ebbs,    In   re, 


"Place  of  Dramatic  Entertainment."]— See 
Duck  v.  Bates,  ante,  col.  500. 

"  Plant."]— See   Yarmouth  v.  France,  ante, 
coL  1195. 

"  Policy."]— See    Norwich    Equitable    Fire 
Assurance  Society,  In  re,  ante,  col.  1008. 


<( 


Port."]— See  ante,  cols.  1673, 1674. 


"  Promoter."]  —  See  Great  Wheal  Polgooth 
Company,  In  re,  ante,  col.  422. 

"  Public  Charity."]— See  Hall  v.  Derby  Sani- 
tary Authority,  ante,  col.  871. 

"  Bailway  Company."] — See  Brentford  and 
Isleworth  Tramways  Company,  In  re,  ante,  col. 
1863. 

"Bash  and  Hazardous  Speculations."] — See 

ante,  cols.  172, 181. 

"Bates,  Assessments,  Impositions,  and  Out- 
goings."]—^* ante,  col.  1086. 

"  Beady  Quay  Berth."] — See  Harris  v.  Jacobs, 
ante,  col.  1667. 

"  Realised  Profits."]  —  See  Oxford  Benefit 
Building  Society,  In  re,  ante,  col.  362. 

"Recovered  or  Preserved."] — See  ante,  col. 
1788  et  seq. 

"  Bisk  of  Craft."] — See  Houlder  v.  Merchants' 
Marine  Insurance  Company,  ante,  col.  1011. 

"  Bead  Authority."]  —  See  Wolverhampton 
Tramways  Company  v.  Great  Western  Railway, 
ante,  col.  1861. 


2185 


WORDS— WORKMAN— WEIT. 


2186 


"Soyal  Courti  of  Justice."]  —  See  Petty  ▼. 
Daniel,  ante,  col.  1482. 

"  Salary."]— &«  Brindle,  Ex  parte,  ante,  col. 
132. 

"  Separate  Court  of  Quarter  Sessions."]— See 
St.  Lawrence  (Overseers)  v.  Kent  J  J.,  ante,  col. 
1072. 

14  Settlement"]— See  Todd,  Ex  parte,  ante, 
col.  161. 

"  Sewer."]— See  Bateman  v.  Poplar  Board  of 
Works,  ante,  col.  1216,  and  Acton  Local  Board 
t.  Batten,  ante,  coL  859. 

"  Shipped  tor  Sale."]— See  Witham  v.  Vane, 
ante,  col.  618. 

"  Special  and  Distinctive  Word."]  —  See 
ante,  col.  1841. 

"  Street"]— See  ante,  cols.  852, 1212  ;  and  St. 
John's,  Hampstead,  v.  Cotton,  ante,  col.  1220. 

"Stationary  Vessels."]  —  See  The  Dunelm, 
ante,  col.  1684. 


"Within  the  United  Kingdom."]- See Stm* 
ham  v.  Ocean,  Rati  way.. and  Accident  Insurance 
Company,  ante,  coL  996. 

"  Within  Three  Months."]— See  Foster,  22r 
parte,  Sanson,  In  re,  ante,  coL  101. 

"  Without  Prejudice."]— See  Kurtn.  Spenee, 
ante,  coL  750. 

"  Workman."]— See  HoUyodk,  Ex  parte,  ante, 
col.  139,  and  cases  ante,  coL  1190. 


M 


Works."]— See  Howe  v.Pinch, ante, col  1194. 


"Striking  Work."]— See  Stephens  v. \Barru, 
ante,  col.  1678. 

"  Surveyor."]  —  See  Lewis  v.  Weston-super- 
Mare  Local  Board,  ante,  col.  865. 

"Taking  LtLJL&*."]—SeeCharlstonv.  RoUeston, 
ante,  col.  1115. 

"  Tolls."]  —  See  Manchester,  Sheffield,  and 
Lincolnshire  Railway  v.  North  Central  Wagon 
Company,  ante,  col.  293. 

"Town."]  —  See  KUUnister  v.  Fitton,  ante, 
coL  1180. 

"Trade  or  Business."]— See  Sully,  Ex  parte, 
Wallis,  In  re,  ante,  coL  124. 


"Works  for  Sewage  Purposes."]— Set  Wim- 
bledon Local  Board  v.  Croydon  Sanitary  Art* 
rity,  ante,  coL  861. 


WORK    AND    LABOUR 

See   BUILDING   CONTRACTS. 


(i 


Inwards"— "Trading  Outwards." 
— See  Mersey  Docks  v.  Henderson,  ante,  co 
1717. 


2 


WORKHOUSE. 

See    POOR   LAW. 


"Turnpike  Boad."J— See  Midland  Railway 
v.  Watton,  ante,  col.  858. 

"  Undertaking."]— See  Mersey  Railway,  In 
re,  ante,  col.  1548. 

"Vested  Interest."]— See  cases  ante,  cols.  313 
and  2039  et  seq. 

"Vessel."]— See  Hedges  t.  London  Bock  Co., 
ante,  col.  1717. 

"Visible  Means."]— See  Lea  v.  Parker,  ante, 
col.  552. 

"  Vocation."}— See  Partridge  v.  Mallandaine, 
ante,  col.  1567. 

"Wilfully  Obstruct."]— &«?  cases  ante,  col. 
1976. 

"  Within  or  at  the  end  of  the  Year."]— See 
Reg.  v.  Income  Tax  Commissioners,  ante,  col.  1573. 


WORKMAN. 

Trade  Unions.]— See  Trade. 

Bights  and  Duties.]  —  See  Master  aid 
Servant. 

Lien — Charge  during  Detention.] —A  wort- 
man  detaining  a  chattel  in  respect  of  a  lien  for 
work  done  thereon,  has  no  claim  for  warehouse 
charges  during  such  detention.  Bruce  v.  Ever- 
son,  1  C.  &  B.  18— Stephen,  J. 


See  SHIPPING. 


WRIT. 

Of  Attachment.]— &c  Attachment. 
Of  FL  Pa.]— See  Execution— Shoot. 
Of  Summons.]— See  Practice. 
Of  Elegit.]— See  Exectjtioh— Sheriff. 


2137 


WRIT. 


2188 


Ve  Exeat  Begno.]—  See  Ne  Exeat  Regno. 

Of  Injunction-] — See  Injunction. 

De  Contumace  Capiendo.]— See  Ecclesias- 
tical Law. 

Writ  of  Assistance— Delivery  of  Chattels.]— 
Although  for  the  purpose  of  recovering  land  the 
old  writ  of  assistance  has  been  superseded  by  the 
writ  of  possession  (Ord.  XLVII.)the  writ  may 
still  be  issued  for  the  purpose  of  recovering  pos- 
session of  and  preserving  chattels  which  have 
been  ordered  to  be  delivered  to  a  receiver. 
Wyman  v.  Knight,  39  Ch.  D.  165  ;  57  L.  J.,  Ch. 
886 ;  59  L.  T.  164  ;  37  W.  R.  76— Chitty,  J. 

Writ  of  Possession— When  Plaintiffs  Title 
expired.]  — Where  a  landlord  has  recovered 
judgment  in  an  action  against  his  tenant  for 


« 

the  possession  of  premises  which  had  been  held 
over  after  the  expiration  of  the  tenancy,  he  will 
be  allowed  to  issue  the  writ  of  possession  not- 
withstanding that  his  estate  in  the  premises 
terminated  after  the  commencement  of  the  action 
and  before  the  trial,  unless  it  be  unjust  and 
futile  to  issue  such  writ,  and  it  is  for  the  defen- 
dant to  show  affirmatively  that  this  will  be  the 
result  of  issuing  such  writ.  Knight  v.  Clarke, 
15  Q.  B.  D.  294 ;  54  L.  J.,  Q.  B.  509  ;  50  J.  P.  84 
— C.  A. 


YORK. 


Chanoery,  Court  of.]— See   Ecclesiastical 
Law. 


TABLE    OF   CASES. 


A.'§  Divorce  BUI    904,905 

A.  v.  A.  (falsely  called  B.)  885 

A.  (falsely  called  M.)  v.  M 888 

A.V.M.  479,886 

A.  B.,  In  re     687 

Abd-Ul-Messih  r.  Farxa  1026,  1031 

Aberaron  Tin  Plate  Co.,  Inre   420 

Abergavenny  (Marquifl)i7.Llandaff  (Bishop)    690 

Abram  v.  Aldridge,  Aldridge,  In  re 10 

Abrams,  Ex  parte,  Johnstone,  In  re 138 

Abiath  v.  North  Eastern  By 516, 1171 

Acason  v.  Greenwood,  Grey's  Settlements, 

Inre    923 

Accident  Insurance  Co.  v.  Accident,  Dis- 
ease, and  General  Insurance  Corpora- 
tion    1827 

Ackers  v.  Howard 718 

Ackroyd  v.  Smithies 2,  222, 1358 

Acton  v.  Crawley,  Crawley,  Inre  ...     1221, 1818 

Acton  Local  Board  v.  Batten 859 

v.  Lewsey 868 

Adam,  Byton,  In  re,  Charlesworth,  Ex  parte 

28,  421,  1895 

v,  Townend     1330 

Adames'  Trusts,  Inre 925 

Adams'  Trusts,  In  re    1910 

Adams  v.  Batley    657 

v.Buchanan 712 

v.Ford  707 

v.  Fox     707 

v.Morgan  63,1558 

v.  Newbigging 823,1382 

Adams  and  Kensington  Vestry,  In  re    1091 ,  2093 

Adamson,  Ex  parte,  Hagan,  Inre    197 

Addington,  Ex  parte,  Ives,  In  re  ...  85,  550,  609 
Addlestone  Linoleum  Co.,  In  re,  Benson's 

case 448 

Addy  v.Blake    1056,1987 

Adelaide  Corporation  v.  White  340 

Adnitt  v.  Hands    1041 

Agamemnon,  The 1703 


Agar-Ellis,  In  re,  Agar-Ellis  v.  Lascelles    978 

Agerv.  Blacklock 529 

v.   Peninsular   and  Oriental   Steam 

Navigation  Co 502 

Agg-Gardner,  In  re  498 

Aglaia,The    1708 

Agnes  Otto,  The    1680 

Agnew  v.  McDowell 1454 

v.  Usher 1417 

Ahierv.  Ahier    897 

Ahrbecker  or  Ahrbecket  v.  Frost  ...  55,  531,  539 

Ainslie,  In  re,  Ainslie  v.  Ainslie    1610 

Swinburn  v.  Ainslie    ...  790, 1824 

Airey  v.  Bower 615,2097 

Akankoo  Mining  Co.,  In  re    438 

Albion  Mutual  Permanent  Building  Society, 

Inre    441 

Alcock  v.  Leeuw   1664 

Alderson  v.  Elgey 1280 

Alderton  v.  Archer   1203 

Aldridge's  case  607 

Aldridge,  In  re,  Abram  v.  Aldridge 10 

v.  Aldridge     479,886 

v.  Feme 1086 

Alexander,  The 1695 

v.Burke 706 

v.  Calder,  Wilson,  Inre  ...    763,  802 

v.  Cross,  Cousins,  Inre  797 

v.  Jolley,  Hutchinson,  Inre  ...  2101 

Alford,  In  re,  Hunt  or  Hurst  v.  Parry 2128 

Alison  v.  Charlesworth    1070 

Alfred,  The 1712 

Allam,  Ex  parte,  Munday,  In  re 246, 257 

Allan  v.  Hamilton  Waterworks  Commis- 
sioners    1568 

v.Pratt    339 

v.  Regent's  Canal,  City  and  Docks 

By 402,1749 

AUcard  v.  Skinner 1922 

Allen's  case. 383 

Allen,  In  re 1764, 1765 

In  re,  Simes  v.  Simes 1487, 1 91 8 

v.  Allen 768,  889 

v.  Coltart 1668,1667 


TABLE    OF    CASES. 


Allen  v.  Longstaffe 2115 

v.  Norris,  Norris,  In  re...  1740, 1914, 1918 

v.  Quebec  Warehouse  Co 339 

v,  Taylor,  Gyhon,  In  re   1450 

Allestree,  Ex  parte,  Clarkson,  In  re    182 

Allgood  v.  Merrybent  and  Darlington  Ry. 

1541, 1950 

Allhuaen  v.  Brooking   833,1807 

Alliance  Society,  In  re 432 

Allingham,  In  re  1754 

Almada  and  Tirito  Co.,  In  re,  Allen's  case     383 

" Alpine"  Trade-mark,  In  re  1840,  1849 

Altrincham  Union  v.  Cheshire  Lines  Com- 
mittee      1373, 1803 

Ambler's  Trusts,  In  re 1913 

Amersham  Union  v.  City  of  London  Union  1383 

Ames,  In  re,  Ames  v.  Taylor  1780 

Amos  v.  Heme  Bay  Pavilion  Co 1408 

Amstell  v.  Lesser  1492,1539 

Andalina,  The    1656 

Anderson's  Trade-mark,  In  re    1843 

Anderson,  Ex  parte,  Tollemache,  In  re  ...   149, 

747 

v.  Commercial  Union  Assurance 

Co 1006 

v.  Dublin  Corporation 529, 864 

v.  Ocean  Steamship  Co. 1716 

Andrew  v.  Williames,  Williames,  In  re   ...   787, 

1894 
Andrews,  Ex  parte,  Andrews,  In  re 113 

Ex  parte,  Wilcoxon,  In  re   145 

In  re,  Edwards  v.  Dewar 928 

«.  Andrews   2021,2026 

v.Barnes  538 

v.  Cox    885 

v.  McGuffog   312,1698,1599 

v.  Patriotic  Assurance  Co.    1007, 1478 

Angell,  In  re,  Shoolbred,  Ex  parte  199 

v.  Tratt 1782 

Angier,  Ex  parte,  Johnstone,  In  re  200 

v.  Stewart    1674 

Anglo- African  Steamship  Co.,  In  re 441 

Anglo-American  Brush  Electric  Light  Cor- 
poration v.  Crompton  1347 

Anglo-French  Co-operative  Society,  In  re, 

Felly,  Ex  parte 431 

Anglo-Indian  Industrial  Institution,  In  re, 

Montagu's  case ;  Grey's  case  392 

Anglo-Maltese  Hydraulic  Dock  Co.,  In  re  1784 
Anglo-Swiss  Condensed  Milk  Co.  v.  Met- 

calf  1846 

Anlaby  v.  Pnetorius  28, 1409, 1479,1499 

Anna  Helena,  The 1704 

Annie,  The 1704 

Annot  Lyle,  The 20,  1696, 1730 

Anson,  Ex  parte,  Mutual  Aid  Permanent 

Benefit  Building  Society,  In  re 267 

Anstice,  In  re,  Anstice  v.  Hibell    1 439 

Anstis,  In  re,  Chetwynd  v.  Morgan 962, 1201 


Apollinaris  Co.  v.  Wilson 1441 

Appleby  v.  Franklin  5,573 

Appleton,  In  re,  Barber  r.  Tebbit  ...  2021, 2030 

Apthorpe  v.  Apthorpe 58,70 

Arabin's  Trusts,  In  re 937, 1627 

Arbenz,  In  re  1838,1849 

Arcedeckne,  In  re,  Atkins  v.  Arcedeckne...  1535 

Arch  v.  Bentinck  720 

Archer  v.  Prall,  Smeed,  In  re 972 

Ardanhu,  The 1696 

Arden,  Ex  parte,  Arden,  In  re  ...  150, 204, 207 

r.  Arden 628,1255,1309 

v.  Deacon   150,204,207 

Argentino,  The * ....  1700 

Argus  Life  Assurance  Co.,  In  re 1004 

Argyle  Coal  and  Cannell  Co.,  In  re,  Wat- 
son, Ex  parte 450 

Arina,  The 1654 

Arklow,  The  1682 

Armfield  v.  London  and  Westminster  Bank    79 

Armour  v.  Walker    757 

Armstrong,  Ex  parte,  Armstrong,  In  re  134, 922 

In  re,  Boyd,  Ex  parte   134 

In  re,  Gilchrist,  Ex  parte...  41, 134, 

922 

v.  Armstrong 2047 

v.  Milburn 1142 

Army  and  Navy  Hotel,  In  re 414 

Arnal,  Ex  parte,  Witton,  In  re 120, 121 

Arnaud,  Ex  parte,  Bullen,  In  re  182 

Arnison  v.  Smith     345,360 

Arnold,  In  re,  Ravenscroft  v.  Workman      307, 

2121 

Arnot's  case. ....   449 

Arnotte.  Hayes 750 

Arrowsmithc.  Dickenson 1386 

Ashburnham's  Trust,  In  re 1901 

Ashbury  v.  Watson   898,1956 

Ashby  v.  Costin  832,998 

v.  Day 738,1527 

r.Hincks    1824 

Ashcroft,  In  re,  Todd,  Ex  parte  160,1807,1808 

Asher  v .  Calcraft  694 

Ashworth  v.  Lord 1281 

v.  Munn    2120 

Askew  v.  Askew 2023 

v.  Lewis 234 

A  skin  v.  Ferguson,  Lindo, /»  re. 2106 

Aspeyv.  Jones  547 

Asphaltic  Paving  Co.,  In  re,  Lee  and  Chap- 
man, Ex  parte    427,491 

Asquith  v.  Griffin 1W1 

Aste  v.  Stumore 654,754,1669 

Atherley  v.  Barnett  12S 

v.  Burnett  -..  I83 

Atkins  v.  Arcedeckne,  Arcedeckne,  In  re...  1535 
Atkinson,  In  re,  Atkinson  v.  Bruce  I*32 

v.  Collard 596,708 

v.  L'Estrange  *** 


TABLE    OF    CASES. 


Atkinson  v.  Powell,  York,  Inre    21 0 

Attenboiough'8  case,  Cunningham  &  Co., 

Inre    226 

Att-Gen.  v.  Ailesbury  (Marquis)  1 577 

v.Anderaon  696 

v.  Barry  Dock  and  Ry 1645 

v.  Birkbeck    81 

v.  Blackburn  (Corporation)  614 

«.Bradlaugh   ...    25,27,743,751,985, 

1816,  1474,  1806 

v.  Heywood  1560 

v.  Horner...  621,1178,  1179,  1180, 1804 

v.  Hubbuck  1676 

v.  Leonard 695 

v.  Llewellyn   42,1492 

*.  Maule 1573 

v,  Montefiore 1575 

v.  Murray  1677 

v.  Welsh  Granite  Co 1225 

(Duchy  of  Lancaster)  v.  Devon- 

shire (Duke) 984,1074 

(Nova  Scotia)  v.  Gregory    338 

(Quebec)  v.  Bead 325 

(Queensland)  v.  Gibbon 320 

(Straits  Settlements)  v.  Wemyss     337, 

1608 

Angusta,  The 1680 

Anld  v.  Glasgow  Working  Men's  Building 

Society. 278 

Austen  v.  Collins 1488,2077 

Austerberry  t>.  Oldham  Corporation  ...  623,  853, 

1080, 1974 
Autothreptic  Steam  Boiler  Co.,  In  re  ...  55,  585 

Avard,  In  goods  of 661,2009,2010 

Avenir,  The 1723 

Avery's  Patent, Inre 1350 

Aylesford  Peerage,  The 743,  744,  884 

Aylesford'8  (Earl)  Settled  Estates, Inre...  1634 
Aylmer,  In  re.  Bischoflfeheim,  Ex  parte  171, 1061 
Ayres,  Ex  parte,  Finsbury  School  Board 

Election,  In  re 41, 1692 

Ayshford,  1%  re,  Lovering,  Ex  parte 166 


B. 


Babington  v.  O'Connor 1092 

Back  v.  Holmes 1215,1977 

Backhouse  v.  Alcock 764 

Bacmeister  v.  Fenton  1521 

Bacon's  Will,  In  re,  Camp  v.  Coe 2017 

Bacon  v.  Camphausen  1878 

v.  Ford,  Kensington  (Lord)  In  re  ...  1061 

Badcock,  Ex  parte,  Badcock,  Inre 180 

Baddeley  v.  Granville  (Earl) 1198, 1811 

Badeley  v.  Consolidated  Bank 70,  774, 1243, 

1326, 1534 
Badisehe  Anilin  und  Soda  Fabrik  v.  Levin- 
stein  1340,1848,1349 


Bagleyv.  Searle 1507 

Bagshawe  v.  Canning   1998 

Bagster,  Ex  parte,  Bagster,  Inre 175 

Bahin  «.  Hughes 914, 1629 

Bailes  v.  Sunderland  Equitable  Industrial 

Society 966 

Bailey  r.  Badham 702 

v.  Bailey 901, 1422, 1811 

Baillie  v.  Goodwin 1410 

Baines*.  Geary 485 

v.  Toye   966 

v.  Wright  176 

Baiid  v.  Thompson 1402 

Baker,  Ex  parte,  Baker,  2*  re  104 

Ex  parte,  Stogdon,  Inre    1757 

In  re,  Baker,  Ex  parte    104 

In  re,  Connell  v.  Baker  766 

v.Baker  457,797 

r.Hedgecock   481,  485 

v.  Monmouth  Town  Council 711 

v.  The  Theodore  H.  Rand 1682 

Bala  and  Festiniog  Railway,  Inre   1 129 

Baldry  v.  Bates 1614 

Balgooley  Distillery  Co.,  In  re,  Weekes's  case,  401 

Balkis  Consolidated  Co.,  In  re 388,  619 

Ball,  Ex  parte,  Hutchinson,  In  re 163 

Inre,  Slattery  v.  Ball 2047 

Ballard  v.  Tomlinson 1312 

Banbury  and   Cheltenham   Direct  Ry.  v. 

Daniel 264,  1542 

Bank  of  Africa  v.  Colonial  Government  ...    329 
of  Ireland,  Ex  parte,  8.,  In  re...  142, 1001 

t>.  Brookfleld  Linen  Co....  1307 

of  Montreal  v.  Sweeny 76,  327 

of  New  South  Wales  v.  Campbell   ...    319 

of  Toronto  v.  Lambe  324 

Bankeso.  Small 816, 1797,1822 

Banks  v.  Mansell 709,  1923 

Bann  Navigation  Act,  In  re,  Olpherts,  Ex 

parte    1770 

Bannatynev.  Direct  Spanish  Telegraph  Co., 

375,  876 

Banque     Jacques     Cartier     v.     Banque 

d'Epargne 476,1955 

Bansha  Woollen  Mills  Co.,  In  re 238,866 

Banshee,  The 1686,1688,1729 

Barangah  Oil  Refining  Co.,  In  re,  Arnot's 

case  449 

Barber's  Mortgage  Trusts,  In  re 1904 

Barber,  In  re 1917 

In  re,  Burgess  v.  Vinicome  807, 813, 

1779, 2003 
In  re,  Stanford,  Ex  parte . .  .237, 238. 240 

In  goods  of    1008,2013 

v.  Houston. H*8 

v.  Tebbit,  Appleton,  In  re 2021, 2030 

Barhamv.  Ipswich  Dock  Commissioners  ...  1977 

Baring  t.  Ashburton 2071 

Barker's  Trade-mark,  Inre 1851 

3  Z 


TABLE    OF    CASES. 


Barker  v.  Lavery  19 

v.  Purvis    1481 

v.  Vogan    1429 

Barlow,  In  re,  Barton  v.  Spencer  ...40,  319, 1161 

In  re,  Thornber,  Ex  parte  173 

v.  St  Mary  Abbott's  Vestry...  1210, 1211 

v.  Teal 1107,1805 

Barnacottv.  Passmore 818 

Barnard,  In  re,  Barnard  v.  White     1035 

In  re,  Edwards  v.  Barnard  217, 804, 1326 

v.  White,  Barnard,  In  re 1035 

Barne,  Ex  parte,  Barne,  In  re  96 

Barnes  v.  Southsea  By 1116 

v.  Toye   966 

Barnett,  In  re,  Reynolds,  Ex  parte     86, 193, 196 

v.  South  London  Tramways  Co. ...  1515 

Barney  *.  United  Telephone  Co 1354 

Barnstaple  Second  Annuitant  Society,  In  re 

481,  752 

Baron  Aberdare,  The 1024, 1444, 1725 

— -  Liebig's  Cocoa  and  Chocolate  Works, 

In  re    441 

Barr  v.  Hardiog 1276, 1455, 1486 

v.  Kingsford 247 

Barraclough  v.  Shillito 1617 

Barrington,  In  re,  Oamlen  v.  Lyon    1228, 1615 

Barron  v.  Ehlers    158 

Barrow*.  Dyster  753,1520 

v.Myers    1416 

v.  Smith    1273 

Haematite  Steel  Co.,  In  re    377 

Mutual  Ship  Insurance  Co.  v.  Ash- 

burner 393,  737,  1021 

Barrs-Haden's  Settled  Estate,  In  re 1626 

Barry  v.  Quinlan  811 

Barter,  Ex  parte,  Walker,  In  re   134, 263 

Bartlett  v.  Northumberland  Avenue  Hotel 

Co 422 

Barton  v.  London  and  North- Western  By.  1462 

v.  North  Staffordshire  By.    ...  389,  733, 

760,  778, 1144 

v.  Spencer,  Barlow,  In  re   40,  319, 1161 

v.  Taylor   318 

Regis  Guardians  «.  St  Pancras 1384 

Basan,  Ex  parte,  Foster,  In  re 114 

Batcheldor  v.  Yates,  Yates,  In  re 227, 1258 

Batchelor  v.  Fortescue 1298 

v.  Yates,  Yates,  In  re   227, 1258 

Bateman  v.  Ball 408 

v.  Poplar  Board  of  Works  ...     8, 1210, 

1216 
Bates,  In  re,  Lindsey ,  Ex  parte 106, 1 12 

v.Moore  1480 

Bath,  Ex  parte,  Phillips,  In  re 141,  272 

Batho,  In  re  1908 

Batten  v.  Wedgwood  Coal  and  Iron  Co. 

431, 1746, 1786 

Battersby's  Estate,  In  re 2091 

Batthyany,  In  re,  Batthyany  <?.  Walford  ...  1464 


Batthyany  v.  Walford 803, 1033, 1401 

Batthyany,  In  re..,  1464 

Baudains  v.  Jersey  Banking  Co 338, 339 

Bax  v.  Palmer,  Knott,  In  re  1897 

Baxendale  v.  De  Valmer 748 

Bayley  and  Hanbary 's  case    449, 1200 

v.  Great  Western  By. 620,  672, 1117 

Bayly  v.  Went  1263 

Baynes,  Ex  parte,  Clarke,  In  re    207 

Baynton  v.  Collins    934 

v.  Morgan   1105,1529 

Beal  r.  Exeter  (Town  Clerk) 706 

Beale,  In  re,  Durrant,  Etc  parte. 1521, 1588 

Beamish  v.  Cox 1099 

Bean  v.  Wade 1141 

Bear,  In  re,  Official  Receiver,  Ex  parte  ...    164 

Beard,  In  re,  Simpson  v.  Beard 2070 

Beatty  v.  Leacy 1499 

Beaty  v.  Glenister 1067 

Bean  clerk  v.  James,  Brooksbank,  In  re   ...  2109 

Beaumont's  Settled  Estates,  In  re 1631 

Beaupre's  Trusts,  In  re    924 

Beavane.  Beavan 1819,2125 

Beayen,  In  re,  Beaven  v.  Beaven 44,2069 

Beckett  v.  Manchester  Corporation  1191 

v.  Bamsdale,  Hodgson,  In  re 728, 

754,  805, 807, 1329 

v.  Tasker .. 927 

Bedborough  v.  Army  and  Navy  Hotel  Co.     57 

Beddington  v.  Atlee 676 

Beddy  v.  Courtnay 2042 

Bedingfield,  In  re,  Bedingfieldv.  D'Eye  1781,1892 

Bedson'8  Trusts,  In  re 2089 

Beesty,  Ex  parte,  Lowenthal,  In  re 84 

Beeswing,  The  39,  1653,1654 

Beetham,  In  re,  Broderick,  Ex  parte  475, 1242 
Belfast  Town  Council,  In  re,  Savers,  Ex 

parte    2029 

Belfort,  The  751,1567,1663 

Bell's  Estate,  In  re  828,983 

Bell,  In  re,  Carter  v.  Stadden 773,1255 

Inre,  Lake  v.  Bell 1139 

v.  Denvir  1801 

v.  Stockton  Tramways  Co 1862,1978 

v.Sunderland  Building  Society    1249,1280 

Bellairsv.  Tucker 346 

Bellamy,  In  re,  Elder  v.  Pearson  913 

Bellcairn,  The 1479, 1480, 1697 

Beltv.Lawes H*5 

Benares,  The 1687 

Bendelow  v.  Wortley  Union  1 311 

Beninfield  v.  Baxter  330,779 

Benington  v.  Metropolitan  Board  of  Works  1117 

Benn,  In  re,  Benn  r.  Benn 2028 

Benson's  case *..   ^ 

Bent  v.  Lister 1055 

Benthall  v.  Eilmorey  (Earl) ~ 315 

Bentinck,  Ex  parte,  Branksea  Island  Okt 

Inre 387,436,447 


TABLE    OF    CASES. 


Bentinck  Steamship  Co.  v.  Potter 1691 

Bentley,  In  re,  Wade  v.  Wilson  1621, 2062 

v.  Vilmont    672,677,1185 

Benwell,  Ex  parte,  Hutton,  In  re 133 

Benyon,  In  re,  Benyon  v.  Grieve  2036 

Beren's  Settlement  Trusts,  In  re  948 

Berens  v.  Fellowes    1618, 1821 

Berlin,  Ex  parte,  South  City  Market  Co., 

In  re    1126 

Beridge,  Inre    1165 

Berkley  v.  Thompson   212 

Berner,  Ex  parte,  Laine,  Inre 147 

Berners  v.  Bullen-Smith,  Bullen-Smith,  In 

re 1027,1484 

Bernina,The    1287,1647,1671,1697,1698 

Berridge  ".  Man  On  Insurance  Co.  ...   482, 1010 

Bertie,  The 1705 

Beryl,  The 1687, 1688, 1724 

Bertey  t\  Besley 1404 

Best  i».  Applegate 1273 

Beswick,  In  re,  Hazlehurst,  Ex  parte 86 

Beta,  The    1686 

Bethell,/*  re,  Bethell  *.  Bethell  222, 1142, 1146 

In  re,  Bethell  t>.  Hildyard 882, 1036 

v.  Bethell,  Bethell,  In  re    ...  222, 1142, 

1146 

v.  Clark    1585 

v.  Hildyard,  Bethell,  In  re  ...882,1036 

Bethlehem  and  Bridewell  Hospitals,  In  re   1128 
Bettesworth  and  Bicher,  Inre  866 

v.  Allingham 511,1069 

Better.  Armstead 848 

v.  Betts,  Symons,  In  re 1400 

Bevan's  Trusts,  In  re  2051,2080 

Bevan  r.  Bevan 1620 

v.  Carr    478 

Bew,  Inre,  Bull,  Ex  parte 1108 

Beyfus,  Ex  parte,  Saville,  In  re Ill 

and  Masters,  In  re 1928 

Bianchi*.  Oflford  243 

Bice*  Jarvis  70,594,1365 

Bickers  v.  Speight 1409 

Bickerton  t\  Walker 1245 

Bidder  v.  Bridges 3,660,747,759 

Biegel'8  Trade-mark,  In  re 1851 

Biggar  v.  Eastwood 782,  811,  2016,  2119 

Bigwood  v.  Bigwood 892 

Billing  v.  Brogden,  Brogden,  In  re  ...  794, 1891 

Billington  «.  Cyples 214 

Binney  v.  Mutrie  1336 

Birch,  In  re,  Roe  v.  Birch 788, 1073 

Birch's  Trustees,  Inre 972 

Bird  and  Barnard,  In  re 2063 

v.  Andrew 38 

v.  Eggleton  1133 

v.  Gibb  1709,1711 

v.  Greville  (Lord) 488, 1110 

v.  Ponsf  ord    1133 

o.Wenn 1282 


Birkbeck  v.  Bullard 720,  721,  722 

Birkenhead  (Mayor)  v.  London  and  North- 
western Ry 861,1120 

Birmingham  and  Lichfield  Junction  Ry., 

Inre   1320 

Banking  Co.  v.  Ross 676, 1200 

Land  Co.  v.  London  and  North- 

western Ry.    ...    38,1113,1124, 

1396,  1458,  1461 

Birrellf?.  Dryer 742,1014 

Bischoffsheim,  Ex  parte,  Aylmer,  Inre  ...   171, 

1061 

Biscoe  «.  Jackson 308 

Bissell  t?.  Fox 219 

Bissett  v.  Jones 1270,  1420 

Bjorkman  v.  Kimberley  (Lord),  Currie,  In 

re 1579,2106 

Bjorn,  The 1444, 1723 

Blachford,  In  re,  Blachford  «.  Worsley    ...    791 
Black,  In  goods  of    2009 

v.  Ballymena  Commissioners 682 

Blackburn  t?.  Haslam 1014, 1512 

v.  Vigors  1013,1511 

Corporation  «.  Micklethwait  ...    867 

District  Benefit  Building  Society 

v.  Brooks    269 

Blackett  v.  Blackett  526,907 

Blackball  v.  Blackhall 900 

Blackie  v.  Osmaston 1436 

Blaibergi;.  Beckett 249,  261 

v.  Parsons    249,252 

Blair  <?.  Cordner  1022,1436,1763 

v.  Deakin 1313 

v.  Eisler  538,  1733 

v.  Stock 1840 

Blake,  In  re,  Jones  «.  Blake 802,  811,  1881 

v.  Gale  794,1155,1279,1957 

r.  Gale,  Gale,  In  re 1141 

v.Harvey  1491 

v.  Hummell    1752 

v.Kelly  864 

<?.  London  (Mayor) 1564 

Blakeway,  In  re,  Rankart,  Ex  parte  ...  132,  201 

Blakeyv.  Hall  536,989,1490 

Blanche,  The 1667 

Blanchett,  Ex  parte,  Keeling,  Inre    105 

Blank  v.  Footman 1858 

Blantyre  (Lord)  v.  Babtie  *..,  1960 

Blashilli?.  Chambers 1211 

Blease,  Ex  parte,  Blinkhorn,  Inre  208 

Blenheim,  The 1675, 1693,  1700 

Blenkarn  v.  Longstaffe,  Longstaffe,  In  re    762 

Blinkhorn,  In  re,  Blease,  Ex  parte  208 

Blockley,  In  re,  Blockley  v.  Blockley  ...  10,  945 

Blosse  v.  Wheatley   717 

Blount  v.  O'Connor    775,  776,  800 

Blower  v.  Ellis  819 

Bloxamt?.  Favre 1029, 1993 

Bluck,  Ex  parte,  Bluck,  In  re   151 

3  z  2 


TABLE    OF    CASES. 


Black  ».  Lovering. 1786 

Bluett,  In  Goods  of  2008 

Blundell,  In  re,  Blandell  v.  Slundell  1749,  1781, 

1877 

*.  DeFalbe  955 

Boaler  v.  Holder 1171,1465 

v.Reg. 594,641 

Board  of  Trade,  Ex  parte,  Brunner,  In  re    198 

Ex  parte,  Chudley,  In  re      92 

Ex  parte,  Games,  In  re      91 

Ebb  parte,  Gyll,  In  re   ...    118 

Ex  parte,  Heap,  In  re  ...    180 

Ex  parte,  Margetts,  In  re      93 

Ex  parte,  Martin,  In  re      91 

Ex  parte,  Mutton,  In  re   182, 

205 

Ex  parte,  Pearce,  /*  re  92, 194 

Ex  parte,  Pryor,  In  re ...    199 

Ex  parte,  Rogers,  In   re      92 

Ex  parte,  Rowlands,    In 

re 94 

Ex  parte,  Strand,  In   re    200 

Ex  parte,  Stainton,  i»  rc    202 

Ex  parte,  Taylor,   In  re      89 

*.  Block 184,189 

Boarder  tr.  Lindsay  654 

Boddington,  In  re,  Boddington  t>.  Clairat  2033 

v.  Bees 1465 

Bolingbroke  v.  Hinde  1269 

Bollard  v.  Spring  732 

Bollen  v.  Southali     714 

Bolton,  In  re,  Brown  v.  Bolton 2022 

In  goods  of   1994 

Estates  Act,  In  re f  1639 

».  O'Brien     636,1475 


Bombay  Civil  Fund  Act,  In  re,  Pringle, 

Ex  parte     964 

Bompasv.  King    1264 

Bond,  In  re,  Official  Receiver,  Ex  parte  ...    104 

v.Evans 1054 

v.  Walford    626,963 

Bonella  v.  Twickenham  Local  Board 860 

Bongiovanni  v.  Societe  Generate  1813 

Bonham,  Ex  parte,  Tollemache,  In  re     ...    149 

Bonner,  In  goods  of 1994 

Bonnie  Kate,  The   1648,1649 

Booker,  In  re,  Booker  «.  Booker    791,  2108 

Boote  v.  Dutton,  Percival,  In  re    1996 

Booth  v.  Smith 1556, 1556 

».  Trail,  Hayson,  In  re 70 

Borlick  v.  Head 1198 

Borneman  v.  Wilson  94,1403 

Borthwick  v.  Ransford  1485,1828 

Bortick  v.  Head 1198 

Boston  Deep  Sea  Fishing  Co.  v.  Ansell  ...  1187, 

1188, 1189, 1525 
Bosvile  v.  Att.-Gen.    .  742,  884 

v.  Bo3vile     909 

Boswell  v.  Coaks  529,  533,  540,  765, 1395 


Bouch  «.  Sproule  399 

Bourgoise,  /*  re 1026 

Bourkev.  Donoghue 1278 

tf.Nichol 1600 

Bourne,  In  re,  Bourne  v.  Brandreth 2071 

In  re,  Rymer  v.  Harpley 2046 

v.  Coulter.... 1446 

v.  Netherseal  Colliery  Co 1290 

Bournemouth  Commissioners  v.  Watts 869 

Bouron,  In  re,  Brandon,  Ex  parte  1484, 

1764 

Bousfield  v.  Dove,  Dove,  In  re  185, 1493 

Bovill  tr.  Gibbe  1212 

Bowchier  v,  Gordon,  Tucker,  In  re  2042 

Bowden  v.  Bealey .. 508 

v.  Layland,  Marsden,  In  re...  789, 1140, 

1966 

Bowenv.  Lewis 2062 

Bowes,  In  re,  Strathmore  (Earl)  v.  Vane...    78, 

787 

Bowesfield,  The 1722 

Bowie  v.  Ailsa  (Marquis) 20 

Bowker  v.  Evans  45,1401 

Bowles  v.  Hyatt,  Hyatt,  In  re  789, 1140 

Bown,  In  re,  O'Halloran  v.  King  ~ 937 

Boxall  v.  Boxall    778,918,2013 

Boycott,  In  re    1758 

Boyd,  Ex  parte,  Armstrong,  In  re   134 

In  re 1«3 

v.Allen    1322 

v.  Farrar 1346 

Boyes,  In  re,  Boyes  v.  Carritt  1869, 2091 

Boyle's  case    453 

Boyle  v.  Sacker 1396, 1414,1494 

Boyse,  In  re,  Crofton  v,  Crofton  215,216, 

221,  223,  1142, 1557 

Bradbrook,  In  re,  Lock  v.  Willis   1813 

Bradbury  v.  Cooper 636,1438 

Bradford  (Mayor),  Ex  parte,  Hargreave's 

Trust,  In  re  1128 

In  re 541,1744 

v.Young 1027,2012,2016 

v.  Young,  Falconar's  Trust,  In 

re 36 

Banking  Co.  «.  Briggs  386, 1257 

Banking  Co.  v.  Cure,  dough,  In 

re   34,1236,1326 

Bradlaughv.  Gossett 1315 

Bradley,  In  re,  Brown  tr.  Cottrell 954 

In  goods  of WR 

v.  Price    ~..   8*9 

Bradley's  Settled  Estate,  In  re  I**7 

Bradshaw,  In  goods  of 20** 

v.  Jackman -••  **3 

*.  Warlow  662, 1473 

Brad  well,  Ex  parte,  Norman,  Inre..„ 1769 

Brady,  In  re  112,11© 

«.  M'Argle 1* 

Bragger,  In  re,  Bragger  v.  Bragger 2043 


TABLE    OF    CASES. 


Braine,  Em  parte,  Dublin  Grains  Co.,  In 

re 416 

Braintree  Local  Board  v.  Boyton  862 

Bramlett  v.  Tees   Conservancy  Commis- 

aioners 1972 

Brandon,  Em  parte,  Bouron,  In  re  ...  1484, 1754 

—     Em  parte,  Trench,  In  re 97 

Brandon's  Patent,  In  re  1351 

Brandram,  In  re  1129 

Branksea  Island  Co.,  In  re,  Bentinck,  Ex 

parte 387,  436,  447 

Branston  v.  Weightman,  Hall,  In  re 2024 

Brasnett's  case  42,427 

Bray  v.  Gardiner  1342 

«.  Lancashire  J  J 1666 

Brennan  v.  Dorney  1058 


Brentford  and  Isleworth  Tramways  Co., 

In  re    411,1863 

Brereton  v.  Edwards    772, 1496 

Brewer  v.  Brown  1936 

Brewster  v.  Prior 791,1868 

Briant,  In  re,  Poulter  v.  Shackel 786,  918 

Bridewell  Hospital  and  Metropolitan  Board 

of  Works,  In  re 1764 

Bridge,  In  re,  Franks  v.  Worth 1485 

Bridgend  Gas  and  Water  Co.  v.  Dnnraven    1111 

Bridger  v.  Savage 835, 1525 

Bridges  v.  Dyas 1445 

v.  Miller   713 

Bridgetown  Waterworks  Co.  v.  Barbados 

Water  Supply  Co 1447 

Bridgewater  Navigation  Co.,  In  re 383,  429 

Brien  v.  Sullivan  1476 

Brier,  In  re,  Brier  v.  Evison  788, 1890 

v.  Evison,  Brier,  In  re 788,  1890 

Brierley  Hill  Local  Board  v.  Pearsall  873 

Brigg*.  Brigg    950 

Bright  v.  Campbell  1265 

Bright-Smith,  In  re,  Bright-Smith  v.  Bright- 
Smith  2066 

Brightmore,  In  re,  May,  Em  parte  110 

Brighton  Livery  Stables  Co.,  In  re  37,527 

Brindle,  Ex  parte,  Brindle,  In  re 132 

Brindley,  Em  parte,  Brindley,  In  re 132 

v.  Cilgwyn  Slate  Co 1687 

Brinton  r.  Lulham,Lulham,ift  r<?...827, 952, 1867 

v.  Maddison 178 

Brisley,  In  re,  Fleming  v.  Brisley 2068 

Bristol  (Guardians)  v.  Bristol  (Mayor)    ...  1380 

(Mayor)  v.  Cox 650 

8team  Navigation  Co.  v.  Indemnity 

Mutual  Marine  Insurance  Co 1018 

Waterworks  Co.  v.  Uren 1966 

British  and  Foreign  Contract  Co.  v.  Wright    645 
Burmah  Lead  Co.,  In  re,  Tickers, 

Em  parte  344 

Commerce,  The    1699 


British  Empire  Match  Co.,  In  re,  Boss,  Em 
parte   382 


British  Empire  Mutual  Life  Assurance  Co. 
v.  Southwark  and  Vauxhall 
Water  Co 1967 

Land  and  Mortgage  Co.  of  America, 

In  re 378 

Mutual  Banking  Co.  v.  Charnwood 

Forest  Ry 1515 

Briton  Life  Association,  In  re   1004 

-  Medical  and  General  Life  Assurance 
Association,  In  re 354,  419, 1005 

Brittain  v.  Overton 315 

Brittlebank  v.  Smith    761 

Broad,  Em  parte,  Neck,  In  re   127 

In  re  1778 

v.  Perkins 1638 

Broadbent  v.  Barrow,  Ovey,  In  re 304,  809, 

2115 

v.  Groves,  Cockcroft,  In  re 2111 

Broadwater  Estate,  In  re 1636, 1637 

Broadwood's  Trusts,  In  re  1430 

Brocklehurst  v.  Manchester  Steam  Tram- 
ways Co 1861 

Broderick,  Em  parte,  Beetham,  In  to... 475, 1242 

Brodribb  v.  Brodribb  13,461,896 

Brogden,  In  re,  Billing  v.  Brogden  ...  794, 1891 

Bromley,  In  re,  Sanders  v.  Bromley 898 

Brook  v.  Brook  894 

Brooke,  In  re 120 

In  re,  Musgrave  v.  Brooke  2074 

Brooking  v.  Maudslay  992, 1019, 1505 

v.  Skewis  1277 

Brooks,  Em  parte,  Speight,  In  re  208 

In  re 87 

v.  Blackburn  Building  Society. 268 

c.  Hassell 1516 

v.  London  and  North- Western  Ry.  1293 

Brooksbank,  In  re,  Beauclerk  v.  James  ...  2109 

Brosnan,  Em  parte   24 

Brough,  In  re,  Currey  v.  Brough  1996 

Broughton,  In  re,  Peat  «.  Broughton     191,  2077 

Coal  Co.  v.  Kirkpatrick  1670 

Brown,  Em  parte,  Evans,  In  re 1756 

Em  parte,  Landau,  In  re 204 

Em  parte,  Smith,  In  re    71,  94, 152,  613 

Em  parte,  Sheffield  and  Watts,  7a 

re 85, 1396, 1790 

Em  parte,  Wise,  In  re 88,208,209 

Inre 978,1159 

In  re,  Brown  v.  Brown 1877 

In  re,  Dixon  v.  Brown 1282, 1888 

In  goods  of 2010 

v.  Alabaster 670 

«.  Bolton,  Bolton,  Inre    2022 

v.  Brown,  Brown,  In  re 1877 

v.  Burdett    524,811,2115 

v.  Butterley  Coal  Co > 1191 

v.  Collins 977 

v.  Cottrell,  Bradley,  Inre 964 

v.  Great  Western  Ry 1288, 1291 


8 


TABLE    OF    CASES. 


Brown  v.  Inskip  1952 

v.  Kough 131 

v.  Iiell 654 

v.  Bigg,  Noyce,  In  re 2051 

v.  Watkins  644 

Vm  Watt 1571 

Brown's  Will,  In  re 1627, 1631 

Browne  v.  La  Trinidad    402,404 

v.  Netherseal  Colliery  Co 1230 

Browne's  Estate,  In  re 1456, 1736 

Brownsoombe  v.  Fair  195 

Brace  v.  Everson  1136,2136 

Brunner,  In  re,  Board  of  Trade,  Ex  parte .    198 

Bruno,  In  re,  Francis,  Ex  parte    1586 

Brunsden  v.  Beresford ,    265 

v.  Humphrey  728,1864 

v.  Staines  Local  Board  49,265 

Bryans  v.  Hughes 1411 

Bryant,  In  re 1744 

v.  Beading  25,43,1044 

Bryden  *.  Niebuhr    1665,1677 

Bryon,  In  re,  Drnmmond  v.  Leigh    2024 

Brysonv.  Russell 7, 17, 1366,  1466 

Buccleuch's  (Duke)  Estate,  In  re 1624 

Buchanan  v/Hardy 583,1169 

Buckingham  v.  Whitehaven  Trustees   1317 

Buckle  v.  Lordonny 275 

Buckley,  In  re,  Ferguson,  Ex  parte 1769 

v.  Buckley 2091,2112 

Bucknill  v.  Morris,  Morris,  In  re  1877 

Budd  v.  London  and  North- Western  By . . . .    298 

Budden,  Em  parte,  Underhill,  In  re 198 

Bull,  Ex  parte,  Bew,  In  re 1108 

In  re,  Catty  v.  Bull    2113 

Bullen,  In  re,  Amaud,  Ex  parte  182 

Bullen-Smith,  In  re,  Berners  v.  Bullen- 

Smith 1027,1484 

Bullers  v.  Dickinson 680 

Bullock,  Ex  parte,  Garnett,  In  re 189 

In  re   1163 

v.  Bullock  1889 

Bulman  v.  Young 652 

Buhner  v.  Bulmer 1303 

Bulwer-Lytton's  Will,  In  re  1636 

Burden,  In  re,  Wood,  Ex  parte 85 

Burdett,  In  re,  Byrne,  Ex  parte    237,  418, 1806 

Burford  v.  Unwin 1086 

Burge,  In  re,  Gillard  v.  Lawrenson  1140 

Bulges  v.  Bristol  Sanitary  Authority    879 

Burgess,  Ex  parte,  Burgess,  In  re 190 

In  re,  Burgess  v.  Bottomley  981 

v.Clark  876 

v.  Gillespie 178 

v.  V innicome,  Barber,  In  re... 807,  813, 

1779,  2003 

Burke,  In  re  127 

r    v.  Gore  1629 

Burlinson  v.  Hall  62 

Burn  v.  Herlofson 1658 


Burnaby  v.  Equitable  Reversionary  Inte- 
rest Society 967, 1820, 1986 

Burnett  v.  Great  North  of  Scotland  By.  ...  1543 

Burns  v.  Bryan  or  Martin  1603 

Burr  v.  Wimbledon  Local  Board    63,1404 

Bum  v.  Ricardo    1812 

Burrows  v.  Holley 627 

Barry  Port  and  Gwendreath  Valley  By. 

In  re    ....    371 

Bursill  v.  Tanner  756,930,1423,1734 

Burstall  v.  Beyfus...  644, 1408,  1424, 1463, 1749 

v.Bryant. 1045,1474 

v.  Fearon. 1402 

Burton  v.  Acton 859 

v.Bradley 852 

V.English 1664,1717 

Bury  (Mayor)  v.  Lancashire  and  Yorkshire 

Ry 1545 

Bnsfield,  In  re,  Whaley  v.  Busfield    1484,1809 

Bush  v.  Whitehaven  Trustees 467 

Bushell,  In  goods  of 1998 

v.  Pocock 464 

Bushire,  The  1671 

Butcher  v.  Pooler 527,543 

Butchers'  Company,  In  re  ~ 11S3 

Bute  (Marquis),  In  re,  Bute  (Marquis)  v. 

Ryder  1612,2037 

(Marquis)  v.  James 760 

Butler's  Trusts,  In  re,  Hughes  v.  Anderson 

9, 883, 1820 
Butter  v.  Butler     13,460,896,915,2066 

v.  Manchester,  Sheffield  and  Lin- 

colnshire Ry 283 

v.  Wearing. 71,156 

Buxton  and  High  Peak  Co.  v.  Mitchell   ...    480 
Bygrave  v.  Metropolitan  Board  of  Works...  1117 

1800 
Byrne,  Ex  parte,  Burdett, In  re...  237,  481, 1806 

In  re,  Hawes,  Ex  parte   11W 

In  goods  of  1166,1387,2010 

Byron's  Charity,  In  re 1124,1638 


C. 


C.'s  Settlement,  In  re 933 

Cadman  v.  Cadman  ~ 971 

Cadogan,  In  re,  Cadogan  v.  Palagi 2067 

Cahill  v.  Cahffl W 

v.Fitzgibbon 1172 

Caird  v.  Moss 624,  726, 1231 

v.  Sime    M* 

Caldicott,  Ex  parte,  Hart,  In  re  147, 153 

Caldwell  v.  McLaren   S27 

Callaghan,  In  rey  Elliott  v.  Lambert    ......   977 

In  goods  of 19S$ 

v.  Society  for  Prevention  of 

Cruelty  to  Animals  I* 


TABLE    OF    CASES, 


C&Uan,  Ex  parte,  Whitley  k  Co.,  In  re  ...   350, 

451, 1612 

Callendar  v.  Wallingf ord 1462 

Callow,  Ebb  parte,  Jensen,  In  re   125, 198 

v.  Callow 918 

v.  Young  66,67 

Caloric  Engine  and  Siren  Fog  Signals  Co., 

In  re    407 

Calton's  Will  or  Trusts,  In  re 1128 

Calver  v.  Laxton,  Jones,  In  re  785 

Calvert  v.  Thomas 249, 252 

Oambefort  v.  Chapman    728, 1881 

Camellia,  The. 1704, 1712 

Cameron,  In  re,  Nixon  v.  Cameron  ...  777, 2114 

and  Wells,  In  re 829 

Camp  v.  Coe,  Bacon's  Will,  In  re 2017 

Campbell,  Ex  parte,  Campbell,  In  re 97 

Ex  parte,  Wallace,  In  re...    169, 173 

In  re,  Campbell,  Ex  parte  97 

In  re,  Wolverhampton  Banking 

Co.,  Ex  parte...   167,168,206,484 

Lord  Colin,  In  re  190 

^.Chambers   705,714 

Campbell's  Trusts,  In  re 2027 

Cann,  In  re,  Hunt,  Ex  parte 256 

v.  Cann    1891 

v.  Willson  825,1800 

Canning  v.  Farquhar    995 

Cannock  and  Rugeiey  Colliery  Co.,  In  re, 

Harrison,  Ex  parte  387 

Capel  v.  Sim's  Ships  Compositions  Co 347 

Capital  Fire  Insurance  Association,  In  re  420, 

1784, 1905 

Carden  v.  Albert  Palace  Association 436 

Cardiff  Steamship  Co.  v.  Bar  wick...     538, 1708, 

1728 

Cardigan  (Lady)  v.  Canon-Howe 1625 

Cardinall  v.  Cardinall  57,1469 

Caidwell  (Lord)  v.  Tomlinson ...  653, 1167, 1406 
Cargo  ex  Laertes  1662,1705 

Ulysses  1706 

Carling  v.  London  and  Leeds  Bank  . . .  344, 348 
Carlisle  Banking  Co.  v.  Thompson  ...  271, 1248 
Carlton  v.  Bowcock      737, 1105 

v.  Carlton,  Watson,  In  re 1993 

Carlyon,  In  re,  Carlyon  v.  Carlyon  1485 

Carmichael    v.    Liverpool    Sailing     Ship 

Owners'  Association 1012 

Carnac,  In  re,  Simmonds,  Ex  parte  ...  95, 1232 

Carnegie  v.  Carnegie 730,  899 

Carnelly,  Ex  parte,    Lancashire    Cotton 

Spinning  Co.,  In  re 423 

Carpenter,  In  re,  Carpenter  v.  Disney 2107 

Carpenter's  Patent  Davit  Co.,  In  re 354 

Carr,  Ex  parte,  Carr,  In  re    115 

In  re,  Carr  v.  Carr 1892 

In  ret  Carr,  Ex  parte  115 

Carriage  Co-operative  Supply  Association, 

In  re 427,  446 


Carson  v.  Pickersgill 627, 1398 

v.  Sloane   1887 

Carshore  v.  North  Eastern  By 1460, 1461 

Carter's  case  421 

Carter,  In  re,  Carter  v.  Carter 1783, 1786 

v.  Carter,  Carter,  In  re 1783, 1786 

v.  Drysdale    1191 

v.  Molson  825 

v.  Stadden,  Bell,  In  re   773,1255 

v.White     221,1633 

Carthew,  In  re  1761 

Carus-Wilson,  In  re 52 

Carvill,  In  re     93 

Casey  v.  Hellyer    1409 

Cassidy  v.  Belfast  Banking  Co 1445, 1999 

Casson  v.  Churchley  236,617 

Castel  v.  Trechman    1667,1673 

Castle,  In  re  1762 

Castle  Mail  Packets  Co.,  Ex  parte,  Payne, 

In  re    : 183, 188,  201 

Cattley  v.  Loundes  578 

Catton  v.  Bennett    1362, 1459, 1961 

Catty  v.  Bull,  Bull,  In  re    2113 

Cave  v.Harris   2086 

v.Torre     1437 

Cavendish  v.  Cavendish  2070 

v.  Dacre,  Chesham  (Lord),  In  re  2106 

Cavendish-Bentinok  v.  Fenn 359, 1524 

Cawley  v.  National  Employers'  Assurance 

Association 996 

Caygill  v.  Thwaite    818 

Cayley   v.    Sandycroft    Brick,    Tile,  and 

Colliery  Co 660 

Cayzer  v.  Canon  Co 1692 

Cecil  v.  Langdon    1632,1914 

Cella,The  1662 

Central  News  Co.  v.  Eastern  News  Tele- 
graph Co. 644,  754 

Chadwick  v.  Ball 563,1538 

v.Bowman  648 

Chaffers,  In  re,  Incorporated  Law  Society, 

Ex  parte    1733 

Chalk  fc  Co.  v.  Tennent 6, 443 

Challender  v.  Boyle   1355, 1356 

Chalmers  v.  Wingfield,  Marrett,  In  re 1027 

Chamber  Colliery  Co.  v.  Hop  wood    682 

Chancellor,  In  re,  Chancellor  v.  Brown  ...    776 
Chandler,  Ex  parte,  Davison,  In  re ...  146, 1060 

Chapel  House  Colliery  Co.,  In  re  413 

Chapell  v.  Emson 850 

Chaplin,  Ex  parte,  Sinclair,  In  re  100, 144, 166, 

826 
Chapman,  In  re,  Edwards,  Ex  parte  169 

In  re,  Ellick  v.  Cox  2080 

In  re,  Fardell  v.  Chapman   1487 

In  re,  Johnson,  Ex  parte  100, 236, 265, 

260,762 

In  re,  Parker,  Ex  parte    143 

and  Hobbs,  In  re   1944 


10 


TABLE    OF    CASES. 


Chapman  c.  Withers 559, 1584 

v.  Wood,  Smith,  In  re  338 

Chappell,  In  re,  Ford,  Ex  parte     141,  465, 1529 

v.  Charlton  1994 

v.  Griffith 846, 1336 

Chappie,  In  re,  Izard,  Eat  parte 125,  258 

In  re,  Newton  v.  Chapman    1780 

Charlemont  (Sari)  «.  Spencer  939, 1991 

Charles,  Ex  parte,  Trfcks,  Jit  re    205 

t>.  Jones  541, 1260 

Charles  Jackson,  The  1650 

Charleston  v.  London  Tramways  Co.  1173, 1199, 

1863 
Charlesworth,  Ex  parte,  Adam  Ejton,  In 

re  28,421,1395 

Charlston  v.  Bolleston 1115 

Charman  v.  South  Eastern  Ry 1293 

Charrington,  Ex  parte,  Dickinson,  In  re  ...    155 

Chase,  In  re,  Cooper,  Ex  parte  182 

Chatteris  v.  Isaacson 845 

Chaytor's  Settled  Estate  Act,  In  re  537, 1626, 1634 

Cheerful,  The 1708 

Chelsea  Waterworks  Co.,  In  re 1127 

t?.  Paulet. 1964 

Chepstow  Bobbin  Mills  Co.,  In  re 412,  416 

Cherry  v.  Endean  299,1204 

Chesham  (Lord),  In  re,  Cavendish  t\  Dacre,  2106 
Cheshire  Banking  Co.,  In  re,  Duff's  Exe- 
cutors' case 381,  787 

Chester  v.  Powell  1109 

Chesterfield    Corporation   and    Brampton 

Local  Board,  In  re 56,  874 

Chesterfield's  (Earl)  Trusts,  In  re 1819,2125 

Chetwynd  v.  Morgan,  Anstis,  In  re  962 

Chichester  v.  Chichester 888 

Chifferiel,  In  re,  Chifferiel  v.  Watson,... 763, 1935 

Childs  v.  Cox 718 

Chillington  Iron  Co.,  In  re,  Mansell,  Ex 

parte   407 

Chinery,  Ex  parte,  Chinery,  In  re 109 

In  re,  Chinery  «.  Hill 2049 

Chisholmv.  Holland 1364 

Cholmondeley'8  (Marquis)  Settled  Estate, 

In  re 1636 

Chorlton's  Trade-mark,  In  re 1837 

Chowne,  In  re   1757 

Christchurch  Inclosure  Act,  In  re    31 1, 341 

Gas  Co.  v.  Kelly    893,738 

Christian  v.  Whitaker,  Whitaker,  In  re    ...    946 

Christiansborg,  The 1431, 1728 

Christie*.  Barker 6,  466,  702, 1556,1812 

Christison  v.  Bolam,  Gregson,  In  re  1284 

Christinas,  In  re,  Martin  v.  Lacon 302 

Christopher  «.  Croll 31 

Chudley,  In  re,  Board  of  Trade,  Ex  parte      92 
Churchill  (Lord),  In  re,  Manisty  v.  Churchill 

597, 1534 

Chusan,  The  1682 

City  Bank  v.  Sovereign  Life  Assurance  Co.    999 


City  of  Chester,  The 615, 1709, 1710 

Delhi,  The 1692 

Lucknow,  The  533,535, 1728 

Civil  Service  and  General  Store,  In  re 436 

Clagett,  In  re,  Lewis,  Ex  parte 1022, 1060 

Clan  Grant,  The ~ 1681 

Macdonald,  The   1669 

Claphamv.  Andrews 1276 

v.  Draper    M 44,1093 

Clarapede  v.  Commercial  Union  Association  1440 
Clark,  Ex  parte,  Clark,  In  re..~ 172 

Ex  parte,  Huntingdon  Election,  Inre    510 

Ex  parte,  Townsend,  In  re 225,237 

In  re,  Clark,  Ex  parte 172 

Inre,  Clark  c.  Randall  2003,2052 

In  re,  Husband  v.  Martin    305 

v.Clark  780,889,1886 

<?.  Bandall,  Clark,  Inre. 2052 

<?.  Reg .. 1925 

v.  South  Metropolitan  Gas  Co. 778 

r.  Wray 1503 

Clarke,  In  re,  Baynes,  Ex  parte ~ . .    207 

In  re,  Combe  r.  Carter. 1240 

c.Bennett  659 

«?.  Berger. 1409 

W.Buchanan   .705,710 

v.  MillwallDock  Co 10» 

r.  Somersetshire  Drainage  Commis- 

sioners   683, 1312 

v.  Thornton    1638 

Clarkson,  In  re,  Allestree,  Ex  parte 182 

Class  v.  Marshall  1337 

Claxton  v.  Lucas  554 

Clay,  In  re,  Clay  v.  Clay     2030 

«\  Coles  2047 

Clayton,  In  goods  of 2010 

Mills  Manufacturing  Co.,  In  re  ...     31 

Cleather  v.  Twisden 39,1327, 1750 

Cleaver,  In  re,  Rawlings,  Ex  parte.  ..239, 249, 251 

v.  Cleaver 19,897 

Clegg  v.  Baretta. ,..    548 

v.  Clegg  806,983 

Clement,  In  re,  Goas,  Ex  parte 1 79, 620 

v.  Cheeseman „ 2000 

Clements  v.  Richardson 1095 

v.  Ward,  Smith,  In  re,  303, 940, 1808, 

1992 

Clemson  c.  Townsend  240 

Clench  v.  D'Arenberg  1110 

v.Dooley 43, 1043, 1044 

Clerical,  Medical,  and  General  life  As- 
surance Society  v.  Carter. 1004, 1568 

Clerk  v.  British  Linen  Co.  1563 

Clery  v.  Barry  1741,  2000 

Cleverton  v.  St.  Germain's  Union  865, 1317, 1782 

Clifford  «.  Clifford. 910 

Clitheroe,  Ex  parte,  National  Building  and 
Land  Investment  Co.,  Inre  431 


TABLE    OF    CASES. 


ii 


Clitheroe  Estate,  In  re  1624 

Cloak  v.  Hammond,  Taylor,  In  re...    2020,  2033 
Cloghessy,  In  re,  McDonald  v.  Cloghessy...    809 

Close,  Ex  parte,  Hall,  In  re  226 

Clothworkers'  Co.,  Ex  parte,  Finley,  In  re    121 
Clough,  In  re,  Bradford  Commercial  Bank- 
ing Co.  v.  Cure  34, 1236, 1326 

Clover  v.  Wilts  and  Western  Benefit  Build- 
ing Society 1280, 1451 

Clune,  In  goods  of    2018 

Clydach,  The 1689 

Coaks  v.  Boswell  1489,1740 

Coates  to  Parsons,  In  re 1913, 1914 

v.  Mackillop,  Holburne,  In  re   303 

Coatsworth  v.  Johnson 1076,  1103, 1795 

Cobeldick,  Ex  parte 1746 

Coburnr.  Collins 230,1504 

Coch  v.  Allcock 757 

Cock,  In  re,  Shilson,  Ex  parte  121 

Cockcroft,  In  re,  Broad  bent  v.  Groves 2111 

Cockerell  v.  Essex  (Earl),  Johnston,  In  re  1578, 

2055,  2070,  2072 

Coffin*.  Dyke    546 

Cohen,  Ex  parte,  Cohen,  In  re 184 

In  re,  Schmitz,  Ex  parte  108 

Colam  v.  Pagett 15 

Colbeck,  In  re,  Hall  v.  Colbeck 1406 

Cole  r.  Great  Yarmouth  Steam  Tug  Co.  ...    464, 

1713 

r.  Miles  1064, 1551 

r.  Saqui 22, 1348 

Coles  r.  Civil  Service  Supply  Association...  1462 

t\  Courtier,  Courtier,  In  re   ...  1818, 1881 

r.  Fibbens    864 

Coleman,  In  re,  Henry  v.  Strong   ...    974, 1880, 

2040 

v.  Llewellin  1274 

r.  West  Middlesex    Waterworks 

Co 1967 

Colledge  v.  Pike 1444 

Collett  v.  Young   1091 

Colling,  In  re 1906,  1926 

Collinge's  Settled  Estates,  In  re    1622 

Collingridge  v .  Emmott  503 

Collingrove,  The    1728 

Collins,  In  re,  Collins  v.  Collins 2123 

r.  Castle   266,987,1952 

v.  Collins 892,  894,  1601 

v.   ,  Collins,  In  re 2123 

Collinson,  Ex  parte,  Collinson,  In  re  112 

Collis  v.  Lewis  558,1043 

Colls  v.  Robins  1487 

Oolne  Valley  Water  Co.  v.  Treharne    1963, 1967 
Colombia  Chemical  Factory  Manure  and 

Phosphate  Works,  In  re,  Hewitt's  and 

Brett'8case  445 

Colonial  Bank  v.  Exchange  Bank  of  Yar- 
mouth   1233 

*.  Hepworth   396,732 


Colonial  Bank  v.  Whinney 8, 124,  397 

Building  and  Investment  Associa- 

tion v.  Att.-Gen.  of  Quebec 324 

Insurance  8ociety  of  New  Zealand 

v.  Adelaide  Marine  Insurance 

Co 339,1010,1011 

Colonsay,  The    1726 

Colquhoun  r.  Brooks 1200, 1477,  1569, 1803 

Colston  v.  Roberts,  Fleck,  In  re 2112 

Colverson  v.  Bloomfield  612, 1287 

Colyer,  In  re,  Millikin  v.  Snelling ...  1893,  2072, 

2127 

Combs,  In  re 1916 

Comity  des  Assureurs  Maritimes  v.  Standard 

Bank  of  South  Africa  1866, 1920 

Commercial  Bank  of  South  Australia,  In  re  410, 

417 

of  South  Australia,  In  re, 

Commercial  Banking 
Co.  of  Sydney,  Ex 
parte  223 

Banking  Co.  of  Sydney,  Ex 

parte,  Commercial  Bank  of 

South  Australia,  In  re 223 

Commissioner  for  Railways  v.  Brown  339 

v.  Hyland  319 

v.  Toohey   320 

Commissioners  of  Woods  and  Forests,  Ex 

parte,  Thomas,  In  re    119,  595 

of  Works,  Ex  parte,  Wood's 

Estate,  In  re  596, 1130, 1802 
Compagnie  du  Senegal  v.  Woods  or  Smith  51 
Compton,  In  re,  Norton  v.  Compton    30,  38, 785 

Comptroller,  Ex  parte,  Thomas,  In  re 93 

Concha  v.  Concha 726,763 

Conder,  Ex  parte,  Woodham,  In  re  ...  158, 1644 

Condon  «.  Vollum 979 

Condy*.  Taylor 1856 

Coney,  In  re,  Coney  v.  Bennett 769, 1458 

Connan,  In  re,  Hyde,  Ex  parte 106 

Connell  v.  Baker,  Baker,  In  re  765 

Connery  v.  Best 464 

Connolly  v.  Connolly   2056 

v.  Munster  Bank 781 

Conolan  v.  Leyland  927 

Consolidated  Credit  Corporation  v.  Gosney    250 

Telephone  Co.,  In  re    379 

Constable  v.  Constable 979, 1628 

Contract  and  Agency  Corporation,  In  re...    415 

Conway  v.  Fenton 1611 

Coodeo.  Johns  1109 

Cook,  In  re,  Dudgeon,  Ex  parte   124 

v.  North  Metropolitan  Tramways  Co.  1190 

Cooke's  Trusts,  In  re    1029 

Cooke  v.  Cooke 2102 

v.  Eshelby  735, 1511 

v.  New  River  Co 1964 

v.  Wilby 761 

Cookes  r.  Cookes  1638 


12 


TABLE    OF    CASES. 


Cooksonr.  Swire 234,258 

Coombe  v.  Carter,  Clarke,  In  re    1240 

v.  Vincent,  Stedman,  In  re  1322 

Coomberv.  Berks  JJ 1566 

Coombe  v.  Cook 1932 

Cooper,  Ex  parte,  Chase,  In  re 182 

Ex  parte,  Knight,  In  re   143 

Ex  parte,  Morris,  In  re  140, 1186 

Ex  parte,  Pennington,  In  re    826 

In  re,  Cooper  v.  Slight  10 

v.  Cooper 21,  1036, 1602 

v.  Davis 235 

v.   Metropolitan  Board  of  Works   749, 

844,  1125, 1241 

v.  Slight,  Cooper,  In  re 10 

v.  Straker 677 

v.  Zeffert 236,  258 

Cootev.  Ingram 1469 

v.  Judd   503,504 

Coper.  Cope 48, 1333 

Coppard,  In  re,  Howlett  v.  Hodson  2038 

Coppinger  v.  Shekleton    1897 

Corbett*.  Corbett  2053,2073 

«.  Plowden   1262 

Corbold,  Ex  parte,  Progressive  Investment 

and  Building  Society,  In  re  279,  433 

Corkeu.  Brims 1565 

Cormickv.  Ronayne  71, 1784 

Cornford  v.  Elliott,  Watts,  In  re...  301,  302,  616 
Cornwall,  In  re    1441, 1754 

v.  Saurin 40,  2114 

Cornwallis,  In  re,  Cornwallis  v.  Wykeham- 

Martin 2075 

Corsellis,  In  re,  Lawton  v.  Elwes  981,  1779 

Cory*.  Burr 1014 

Cosby  v.  Shaw  1082 

Cosmopolitan,  The  1444,  1723 

CosBman  v.  West   1016 

Coton,  In  re,  Payne,  Ex  parte  239 

Cottrell  v.  Cottrell    1639 

Coalman,  In  re,  Munby  v.  Boss 2101 

Coulson,  Ex  parte,  Gardiner,  In  re 95,  944 

Coulton,  In  re,  Hamling  v.  Elliott   1482 

Counaell  v.  London  and  Westminster  Loan 

and  Discount  Co 254 

Courtier,  In  re,  Coles  v.  Courtier 1818, 1881 

Courtney,  In  re,  Dear,  Ex  parte  204 

v.  Cole  1679 

Cousins,  In  re,  Alexander  r.  Cross    797 

Cousins'  Trusts,  In  re 1256,  1310 

Coventry  v.  Great  Eastern  By 290,  739 

Cowan  v.  Carlill 73,  773 

v.  O'Connor 465, 1202, 1817 

Coward,  In  re,  Coward  v.  Larkman...  2017,  2057 

Cowell  v.  Taylor 93, 1442 

Cowin,  In  re,  Cowin  v.  Gravett 630, 1899 

Cowley,  In  re,  Souch  v.  Cowley    2108,  2128 

Cowperv.  Harmer. 1907 

Cox,  Ex  parte   27,  616,  687 


Cox,  Ex  parte,  Dublin  Drapery  Co.,  In  re  366, 

367,  368, 371 

In  re,  Trustee,  Ex  parte. 139 

v.  Andrews 835 

t.  Bruce 166$ 

Coyle  t\  Great  Northern  Ry 1288, 1289 

Coyte,  In  re,  Coyte  v.  Coyte  2006 

Crabtree  r.  Robinson    1095 

Craddock  r.  Rogers  1738 

Craig  v.  Elliott 471 

v.  Midgley,  Crossland.  In  re 2052 

Cramer  v.  Giles « 467 

v.  Murphy 1641 

Crampton  v.  Ridley  52 

v.  Swete    1833 

r.  Wise 2035 

Crane  v.  Lewis  218, 1328 

Craven,  Ex  parte,  Ingham,  In  re 148 

v.  Ingham 1493 

Crawford  v.  Crawford 898,899 

v.Newton 1081 

v.  Peel    1298 

Crawley,  In  re,  Acton  v.  Crawley    ...  1221, 1818 

Crawshay,  In  re,  Dennis  r.  Crawshay  1493 

Crawshay's  case     440 

Creadon,  The 1701 

Crears  r.  Hunter  or  Burnyeat 479 

Credit  Co.,  Ex  parte,  McHenry,  In  re 91 

<?.  Webster  439 

Credits  Gerundeuse  v.  Van  Weede. . .    1041 ,  1484 
Creed  v.  Henderson,  Hudson,  In  re  474, 

478 

Cresswell,  In  re,  Parkin  tr.  Cresswell   2045 

Creswell  r.  Davidson    1)02 

Crew  v .  Cummings    M 233 

Crick  v.  Hewlett   1448,1472 

Cripps,  In  re,  Ross,  Ex  parte 113,158 

v.  Judge    1195 

v.  Tappin  1328 

Crisfordr.  Dodd    1507 

Croft  v.  London  and  County  Banking  Co.  1104 

r.  Rickmansworth  Highway  Board  742, 

1978 
Crofton  r.  Crofton,  Boyset  In  re  215, 216, 221, 

223,1142,1557 

Crofts  t?.  Taylor 1047,1561 

Crompton  v.  Anglo-American  Brush  Elec- 
tric Light  Corporation 1347 

v.  Jarrett 619,692 

Cronin  v.  Rogers    1081,1103 

Crooke's  Mining  and  Smelting  Co.,  In  re, 

Gilman'scase 450 

Croome  «?.  Croome 2021,2093 

Cropper  v.  Smith  36, 1342, 1601 

v.  Warner. 1042,1088 

Crosby,  In  re,  Munns  v.  Burn    & 

Crosland,  In  re,  Craig  v.  Midgley *E* 

Crosley,  In  re,  Munns  v.  Burn  ...   33. 187. 1143 
Crossneld  r.  Shurmur  ®* 


TABLE    OF    CASES. 


13 


Crossman  v.  Gent-Davis  720,  72 1 

v.  Beg.  ..! 1560 

Crosthwaite,  Ex  parte,  Pearce,  In  re  157, 1641 

Crowley  v.  Feniy 1058 

Crown,  The,  Ex  parte,  Oriental  Bank  Cor- 
poration, In  re  321,  430,  595 

Crowther,  In  re,  Duff,  Ex  parte    121 

In  re,  Ellis,  Ex  parte  209 

v.  Boult    526 

v.  Elgood 611 

v.  Thorley 352 

Croydon    County  Court   (Begistrar),   Ex 

parte,  Wise,  In  re  88,  208,  209 

Union  v.  Beigate  Union    1384 

Crorierv.  Dowsett. 540,1275 

Crump  v.  Leicester,  Sinclair's  Settlement, 
l*re    492 

Cubbop  or  Cubban,  In  goods  of 1993 

Cuddeford,  Ex  parte,  Long,  In  re 106 

Cumbrian,  The  1707 

Cundy  v.  Le  Cocq 565,1054 

Cunningham,  Ex  parte,  Mitchell,  In  re    96, 1026 

In  re  67 

k  Co.,  In  re 28, 415 

k  Co.,  In  re,  Attenborough's 

case 226 

k  Co.,  In  re,  Simpson's  Claim  1513 

Cunnington  v.  Great  Northern  By 291 

Currey,  In  re,  Gibson  v.  Way 983, 944 

v.  Brough,  Broagh,  In  re  1996 

Currie,   In   re,    Bjorkman    v.    Kimberley 

(Lord)     1579,2106 

Curtin  9.  Great  Southern  and  Western  By.  1293 
Curtis,  In  re,  Hawes  v.  Curtis    917 

v.  Wainbrook  Iron  Co 157 

Cusack  v.  Farrell  1099 

Cutler  v.  North  London  By 294 


D. 


D.,  In  re 179 

D'Amico  v.  Trigona  334 

D'Arcy  v.  D'Arcy 890 

Dadswell  v.  Jacobs  1464,1525 

Dagnino  v.  Bellotti  340 

Daintreev.  Fasulo 2002 

Baking  v.  Fraser  714 

Dale,  Ex  parte,  Dale,  In  re    203 

In  re,  Leicestershire  Banking  Co.,  Ex 

parte 207 

Dallas  v.  Ledger   460 

Dallow  v.  Garrold 71,1791 

Daly  v.Daly 607,902 

k  Co.,  In  re 485 

Damant  v.  Hennell  982 

Dames  and  Wood,  In  re  1940 

Danby,  In  re 1166 

v.  Coutts  623,1307,1391 


Daniel,  Ex  parte,  Roberta,  In  re  164 

v.  Matthews,  Gilbert,  In  re 2050 

v.  Whitfield 75, 1987 

Daniels  v.  Allard  711 

Darbyshire,  In  re,  Hill,  Ex  parte 204 

Darenth  Main  Valley  Sewerage  Board  v. 

Dartford  Union   872 

Darley  v.  King,  Dash,  In  re  4,  574,  2078 

v.  Tennant 1153 

Main  Colliery  Co.  v.  Mitchell    1144, 1227 

Darling,  In  re    1164 

Darlington  Forge  Co.,  In  re   391 

Darracott  v.  Harrison 606,  943 

Dartmouth  Harbour  Commissioners  v.  Dart- 
mouth Mayor 1443 

Dash,  In  re,  Darley  v.  King  4,  574,  2078 

Dashwood,  In  re,  Kirk,  Ex  parte 138 

v.  Ayles  715 

Daubuz  v.  Lavington 1278, 1421 

Davenport  v.  Charsley 1934 

Davey  v.  London  and  South  Western  By.     1291 

v.  Thompson 1562 

David  v.  Howe  553 

Davidson  v.  Allen  1094,1642 

v.  lllidge,  Iilidge,  In  re 792 

v.  Young    1492 

Davies,  In  re 463 

In  re,  Davies  v.  Davies  1485 

to  Jones 2066 

v.  Davies    486,  488,  537,  1076, 1632 

v.  Davies,  Davies,  In  re 1486 

v.Hodgson   1909 

v.  Makuna    481,1206 

v.  Bees  238 

v.Smith 1268,1451 

- —   v.White 749,760 

v.  Williams,  Williams,  In  re 1154 

v.Wright  1270 

Davis,  In  re,  Muckalt  v.  Davis  783 

In  re,  Pollen  Trustees,  Ex  parte  ...    159, 

1094 

In  re,  Bawlings,  Ex  parte  127,  232 

v.  Burton  243.253 

v.  Comitti    601 

v.  Galmoye 66 

v.James 1499 

v.  Loach 1069 

v.  Shepstone   634 

v.  Simmonds  607 

v.  Usher  266 

Davison,  In  re,  Chandler,  Ex  parte...  146, 1060 

In  re,  Greenwell  v.  Davison  2066 

Davys  and  Saurin,  In  re 1936 

v.  Bichardson 1427, 1745, 1823 

Dawdy,  In  re 48 

Dawes,  Ex  parte,  Moon,  In  re 26,  180, 192, 

202 

v.  Creyke 906,944 

Dawson,  In  re,  Johnston  vt  Hill 2080 


14 


TABLE    OF    CASES, 


Dawson  v.  Fox 25, 1045 

Day,  In  re,  Steed,  Ex  parte  208 

v.  Bonaini,  Smith,  In  re 1949 

r.  Sykes 375 

v.  Turaell,  Higgins,  In  re    1576, 1618 

v.  Ward 1203, 1733 

D'Estampes,  In  re,  D'Estampes  v.  Hankey     945 

D'Etchegoyen  v.  D'Etchegoyen 1029 

De  Bay,  The 1709,  1711 

De  Bargh  Lawson,  In  re,  De  Burgh  Law- 
son  v.  De  Burgh  Lawson...-. 2109 

De  Carteret  v.  Baudains 333 

De  Caux  v.  Skipper  1276 

De  Jager  t>.  De  Jager    331 

De  Jongh  t?.  Newman  1507 

De  Mattes  v.  Great  Eastern  Steamship  Co.     603 

De  Montfort  v.  Broera 329 

De  Mora  v.  Concha  28,747 

De  Portugal,  In  re 569,  814 

De  Rechberg  v.  Beeton 1574 

De  Bos'  Trust,  In  re,  Hardwicke  v.  Wilmot    945 

De  Rosaz,  In  re,  Rymer  v.  De  Bosaz 535 

De  Stacpoole  v.  De  Stacpoole 969 

De  Waal  v.  Adler 331 

Del  Carmen  Vea  Murguia,  In  goods  of 2009 

De  la  Chevrotiere  v.  Montreal    324 

De  la  Hunt  and  Pennington,  In  re...  2053,  2065 

De  la  Pole  (Lady)  v.  Dick    33, 1736 

Des  Vignes,  Ex  parte,  Des  Vignes,  2*  re...    152 

Deacon  «.  Arden 90, 1457 

Deakin  v.  Lakin,  Shakespear,  In  re  926 

Dean,  In  re,  Ward  v.  Holmes 1769 

Dear,  Ex  parte,  Courtenay,  In  re 204 

Dealing  v.  Brooks,  Parker,  In  re 1454,  2015 

Dearie,  Ex  parte,  Hastings,  In  re 103 

v.  Petersfield  Union 877, 1368 

Dearmer,  In  re,  James  v.  Dearmer  .........    922 

Debenham  v.  King's  College,  Cambridge      58 

Deering  v.  Bank  of  Ireland 148 

Deignan  v.  Deignan 937 

Delaney  v.  Wallis 577,  1184, 1865 

Delany  «?.  Delany 2070,2079 

Delaroque  v.  Oxenholme    Steamship    Co.  1656 
Delta  Syndicate,  In  re,  Forde,  Ex  parte    446 

Delves  v.  Newington 18 

Dempsey  «.  Eeegan 716 

Denaby  Main  Colliery  Co.  v.  Manchester, 

Sheffield,  and  Lincolnshire  Ry. 297 

Denham,  In  re 360,  442, 1308 

Denne  and  Secretary  of  State  for  War,  In 

rr 1767 

Dennis  v.  Crawshay,  Crawshay,  In  re  1493 

Derbon,  In  re,  Derbon  v.  Collis 1424 

Derby  Union  r.  Sharratt,  Webster,  In  re  1165, 

1387 

Desinge  t?.  Beare,  Prater,  In  re 2069 

Dessau  v.  Lcwin,  Michael,  In  re 762 

Deutsche  Springstoff  Actien  Gesellschaft  v. 
Briscoe 49 


Dever,  Ex  parts,  Suae,  In  re,  128, 130, 135, 467, 

921,  995, 1003, 1035 

De  vine  *>.  Keeling 1049 

Devitt  v.  Kearney 782 

Devonport  (Mayor)  v.  Plymouth  Tramways 

Co 5,  989, 1811 

Devonshire  (Duke)  v.  Pattinson  597,  621,  818, 

1970 

Dewar,  In  re,  Dewar  «.  Brooke 1890 

Dewhirst's  Trusts,  In  re 1907 

Dewsbury  Waterworks  Board  v.  Penistone 

Union  Assessment  Committee  1377 

Union  v.  West  Ham  Union 6. 1073 

Dickinson,  In  re,  Charrington  or  Moore,  Ex 

parte    1® 

Dickson,  In  re,  Hill  v.  Grant 971 

v.  Great  Northern  By. 296 

v.  Lough 1362 

v.  Murray,  Murray,  In  re 823, 1920 

Difiori  v.  Adams  1011 

Digby,  Ex  parte,  Jackson  v.  Smith 1791 

Diggles,  In  re,  Gregory  v.  Edmondson  ...  2093 

Dillett,  In  re 338 

Dillon's  claim,  Monster  Bank,  In  re 455 

Dillon  v.  Arkins 2017, 2069 

«.  Balfour 633,1502 

v.  O'Brien  594,1366 

Dimmock,  In  re,  Dimmock  t?.  Dimmock  804,1883 

Dinning  r.  South  Shields  Union 1387 

Dione,  The 1702 

Direct  Spanish  Telegraph  Co.  In  re 375 

v.  Shepherd,  1086 

1967 

District  Bank-of  London,  Ex  parte,  Genese, 

In  re 1« 

In  re 416 

Dix  v.  Great  Western  By M06 

Dixon,  Ex  parte,  Dixon,  In  re  ...  110, 115, 174, 

207 

In  re,  Dixon  v.  Smith 929 

v.  Brown,  Brown,  In  re 1232, 1888 

r.  Fairer  697.1731 

v.  Pyner  960 

v.  Smith,  Dixon,  In  re 939 

Dobbin's  Settlement,  In  re  233 

Dobbs  v.  Grand  Junction  Waterworks  Co.  1965 

Doble  *.  Manley 1266,1272 

Docwra,  In  re,  Docwra  r.  Faith  936, 1945 

Dod,  Longstaffe  and  Co.,  In  re,  Lamond,  Eat 

parte 557, 1776 

Dodds  r.  Tuke 743,808,1896 

Doggett  v.  Revett,  Youngs,  In  re  29, 804, 1434, 

1480 

Doherty's  Contract,  In  re 1946 

Dominion  of  Canada  Freehold  Estate  and 

Timber  Co.,  In  re   437 

Plumbago  Co.,  In  re   420 

431 

Domvile  v.  Wilmington 1617 


TABLE    OF    CASES, 


IS 


Donaldson,  In  re  528,  1279,  1778 

Donoghue  v.  Brook 708 

Donohoe  v.  Donohoe  551,969,1034 

v.  Mullarkey 772 

Doobv  v.  Watson  1141,1747 

Dora  Tally,  The  1653 

Boron  v.  Moore  1093 

Dorchester  Union  v.  Poplar  Union 1383 

v.  Weymouth  Union  ...  1385 

Dordogne,  The    1685,1686 

Dore  v.  Fletcher,  Fletcher,  In  re 2041 

Dormont  v.  Furness  Ry 517, 1718 

Dorrian  v.  Gilmore 2084 

Dougherty  v.  Teaz  619,1491 

Doughty  v.  Firbank 1194 

Douglas,  In  re,  Douglas  v.  Wood 1207 

Obert  v.  Barrow 305 

Wood  v.   Douglas 724 

v.  Wood,  Douglas,  In  re  1207 

Doulon  v.  Halse  704 

Dove,  In  re,  Bousfield  v.  Dove 185, 1493 

Dowden  v.  Lewis  1532 

Dower  v.  Dower 1153 

Down*.  Steele  710 

Downer.  Fletcher 930,  1423 

Downes  v.  Somerville,  Somerville,  In  re  ...      42 
Downing  v.   Falmouth   United    Sewerage 

Board  645 

Downs  v.  Salmon  235 

Downshire  (Marquis)  v.  O'Brien. .  .1 1 78, 1 1 79, 1 181 
Dowson,  Ex  parte,  Dowson,  In  re 183 

In  re,  Jaynes,  Ex  parte  198 

Doyle  v.  City  of  Glasgow  Life  Assurance  Co.  1003 

v.  Maguire 796, 1497 

Draget?.  Hartopp   798,1407 

Drake r.  Francke,  Francke,  In  re... 807, 1455, 1486 

v.  Greaves 1133 

v.  Kershaw,  Kershaw,  In  re   2112 

Draper's  Trusts,  In  re 2077,  2095 

Draycott  v.  Harrison    606,  943 

Dresser  v.  Gray,  Gray,  In  re  2083,  2086 

Drew  v.  Drew 891 

v.Josolyne 64, 165,263 

v.  Metropolitan  Board  of  Works... 1209, 1314 

Drewitt  v.  Drewitt    2015 

Driffield  Linseed  Cake   Co.  v.  Waterloo 

Mills  Co 1353 

Driscoiv.  King 552 

Druitt  v.  Christchurch  Overseers  712 

-p.  Seaward 2031 

Drum  Slate  Quarry  Co.,  In  re    364,  445 

Drummond  v.  Leigh,  Bryon,  In  re 2024 

v.  Van  Ingen 1584 

Drury  v.  Orsmond,  Orsmond,  In  re   792 

Drury  Lowe's  Marriage  Settlement,  In  re, 

Sitwell,  Ex  parte 1574 

Drax,  In  re,  Saviie  r.  Yeatman 2036 

Dry  Docks  Corporation,  In  re    424 

Duanev.  Lee 799 


Dublin  Corporation  v.  M'Adam 1 568 

and  Wicklow  Manure  Co.,  In  re, 

O'Brien,  Ex  parte 447 

Drapery    Co.,   In   re,    Cox,    Ex 

parte  366, 867,  868,  371 

Grains  Co.,  In  re,  Braine,  Ex  parte    415 

Duck  v.  Bates 500 

Duckett  v.  Thompson   2070 

Ducondu  v.  Dupuy   328 

Dudgeon,  Ex  parte.  Cook,  In  re    124 

Dudley,  Ex  parte,  Sol  i ci tor,  In  re 1 498 

In  re,  Monet,  Ex  parte 61 1 ,  1742 

(Countess)  and  London  and  North 

Western  Railway,  In  re  1626 

Duff's  Executors'  Case 881,  787 

Duff,  Ex  parte,  Crowther,  In  re    121 

v.  Duff 896 

Duffett*.  McEvoy 321,1752 

Dufourcet  v.  Bishop 1672 

Dugdale,  In  re,  Dugdale  v.  Dugdale  2074 

Duguid  v.  Fraser  1996,  2097 

Dumoulin  v.  Langtry    332 

Duncan  «.  Toms 1068 

Dundee  Suburban  Railway,  In  re 1 49 1 

Dunelm,  The 1684, 1805 

Dunkley  v.  Harrison 831 

Dunn  v.  Dunn   901 

v.  Flood 1796,  1883,  1884 

v.  Lareau 322 

v.  Newton    1521 

Dunning,  In  re,  Hatherley  v.  Dunning   . . .    783 

v.  Gainsborough  (Earl)  1306 

Durham    (Earl),  In  re,  Grey    (Earl)  r. 

Durham  (Earl)  622 

V.Durham  884 

(Mayor)  v.  Fowler 1532 

Durrant,  Ex  parte,  Beale,  In  re  1521, 1588 

Dwyer  v.  Meehan 632 

Dyas,  Ex  parte,  Navan  &  Kingscourt  Ry., 

In  re    1634,  1635 

Dye«.  Dye 921,  939, 1870, 1991 

Dyer,  Ex  parte,  Taylor,  In  re 126 

In  re,  Dyer  v.  Paynter 1321 

Dyke  v.  Stephens 644,981 

Dynevor  (Lord)  v.  Tennant 674,  1078 

Dyson  v.  Godfrey 333 

r.  Greetland  Local  Board    1979 


E. 


E.v.  C 1419 

E.  C.  Powder  Co.,  In  re  378 

Eagleton  v.  Horner,  Horner,  In  re   ...2023,  2032 

Earl  of  Dumfries,  The   743,  1725 

Earle,  In  goods  of 2012 

Early  v.  Kathbone 622,  1240 

East  and  West  India  Dock  Co.,  In  re  1549 

v.  Kirk 49 


16 


TABLE    OF    CASES. 


East  and  West  India  Dock  Co.  r.  Shaw, 

SayiU  &  Co 1652 

East  London  Waterworks  Co.  v.  St  Matthew, 

Bethnal  Green  1962 

Easton  v.  London  Joint  Stock  Bank 534 

Estate  Co.  r.  Western  Waggon  Co. 

10S7, 154 

Easy,  In  re,  Hill,  Ex  parte    84, 112 

Eaton  v.Lake    501 

Ebbs,  In  re 133 

Eberle's  Hotel  Co.  v.  Jonas  153,  426 

Ebor,  The 1685, 1686 

Ebrard  v.  Gassier 562,  1441 

Eccles  r.  Wirral  Sanitary  Authority 867 

Edellv.  Cave 1419 

Edelston  r.  Rnssell  645 

Eden  v.  Weardale  Iron  and  Coal  Co....  655, 1463 

Eder  v.  Levy 1205 

Edge  v.  Boileau 1083 

Edgington  v.  Fitzmaurice 344,  345,  536,  822 

Edie  and  Brown,  In  re    1943 

Edinburgh  Magistrates  v.  Blackie  ...  1183, 1603 

Edison  Electric  Light  Co.  v.  Holland  1461 

v.  Woodhouse  ...  1340 

Edmonds  v.  Blaina  Furnaces  Co 368,  369 

v.  Edmonds,  Flower,  In  re    ...  2099, 

2102 

v.  Robinson 1337,  1481 

Edmonton  Guardians  v.  St.  Mary,  Isling- 
ton, Guardians  1382 

Edmunds,  Ex  parte.  Green,  In  re 200 

v.  Wallingford 466, 1234, 1528 

Edward  v.  Cheyne 917, 1601,  1602 

Edwards,  Ex  parte,  Chapman,  In  re    169 

Ex  parte.  Home,  In  re  87 

Ex  parte,  Smith,  In  re  ...  49,  142, 193 

Ex  parte,  Tollemache,  In  r<?...149,  746 

In  re,  Owen  v.  Edwards 619, 1491 

and  Green,  In  re 1938 

u.  Barnard,  Barnard,  In  re...  217,  804, 

1326 

v.  Chancellor 216 

v.  Dennis 1836,  1850 

v.  Dewar,  Andrews,  In  re 928 

^.Edwards    925 

v.  Falmouth    Harbour    Commis- 

sioners   517, 1718 

.  v.Hope 540,1787 

r.  Lloyd 711 

v.  Lloyd,  Lloyd,  In  re 1640 

v.  Salmon  877 

Edwards'  Trade-mark,  In  re 1836, 1850 

Egg  v.  Blayney 1220 

Eggleton  v.  Newbegin,  Newbegin,  In  re...  1165, 

1387 

Ehlers  v.  Kauffman 155 

Ehrlichv.  Ihlee 1347 

Eilean  Dubh,  The 1729 

Elder  v.  Pearson,  Bellamy,  In  re  913 


Blderton,  In  re 977 

In  re,  Russell,  Ex  parte    308 

Eley,  In  re  1768,1774 

v.  Lytle 584 

Elin,  The. 1656 

Ellick  v.  Cox,  Chapman,  In  re  2090 

Ellington  v.  Clark  37,536,1340 

Elliott  v.  Dean  469 

v.  Elliott    969,1429 

v.  Hall    1295 

v.  Harris 1478, 1509 

r.  Lambert,  Callaghan,  In  re. 977 

r.  Nailstone  Colliery  Co. .. 1295 

Ellis,  Ex  parte,  Crowther,  In  re  209 

In  re,  Hinshel wood,  Ex  parte 103 

r.  Johnson,  Glanvill,  2*  re 928, 942 

v.Rogers    1797,1932 

v.Stewart 34 

Ellis'  Trusts,  In  re,  Kelson  v.  Ellis 1486 

Elmore  v.  Pirrie. 1797 

Elphinstone  v.  Monkland  Iron  and  Coal  Co. 

428, 1082, 1085, 1362 

Elsas  v.  Williams 1490 

Elwell  v.  Jackson  72,222,1358 

Elwes  and  Turner,  In  re 1762 

v.  Brigg  Gas  Co.    1077 

Elworthy  v.  Harvey ....  1487 

Emanuel,  In  re 1773 

v.  Parfitt,  Tucker,  In  re   926 

Emeny  v.  Sandes  - 522,553 

Emery,  In  re,  Official  Receiver,  Ex  parte. . .    234 

v.  Cichero 1682 

— -    v.  Sandes 522,553 

Emery's  Trust,  In  re   935 

Emmensv.  Pottle 636 

Emmerson,  In  re,  Rawlings  v.  Emmerson 

462, 543,  2014 

v.  Ind 20 

Emmett  v.  Heyes 539 

Emmy  Haase,  The 1689, 1693 

Emperor  Life  Assurance  Society,  In  re, 

Holliday,  Ex  parte  440 

Empire  Theatre,   In  re,    Reg.    r.  Inland 

Revenue  Commissioners  1046 

England,  The     1651 

v.  Shearburn 1100 

English's  Trusts,  In  re 1132 

English  and  Scottish  Trust  Co.  v  Flatao...  1463 
Ennis  v.  Rochf  ord  728,789 

and  West  Clare  Ry.,  In  re 1320 

Enniskillen  Guardians  v.  Hilliard     ...  850, 1810 

Eppos,  The     1782 

Erato,  The 1711 

Ermen  &  Ruby's  Trade-mark,  In  re 1853 

Erskine  v.  Armstrong      469 

Escallier  v.  Escallicr    537 

Esdaile,  In  re,  Esdaile  v.  Esdaile -.--■  1635 

v.  City  of  London  Union 700, 1376 

Espir  v.  Todd 1091 


TABLE    OF    CASES. 


17 


Bssequibo,  The 1683 

Essery  v.  Cowlard  626,963 

Essex  Election  (South- Eastern  Division), 

In  re    719 

Btheridge  p.  Womersley,  Womersley,  In  re    806 

European,  The     1292,1696 

Boston  v.  Smith 656,  886 

Evans,  Ex  parte,  Evans,  In  re    101, 102 

In  re 1430 

In  re}  Brown,  Ex  parte 1756 

In  re,  Evans,  Ex  parte 101,  102 

In  re,  Evans  v.  Evans        777 

In  re,  Welch  r.  Channell      ...  975, 1893 

v.  Benyon    37,1886 

r.  Evans,  Evans,  In  re   777 

r.  Hemingway    1055,1071 

r.  Manchester,  Sheffield    and  Lin- 

colnshire By 992,  1296,  1973 

r.  Maxwell,  Orme,  In  re    12,785 

v.  O'Donnell     1145 

1?.  Boberts,  Boberts,  In  re  229,  472,  1588 

Evatt,  Ex  parte.  Old  Swan  Benefit  Build- 
ing Society,  In  re 278 

Ewing  v.  Orr-Ewing     614,  801, 1032,  1033,  1597 
Exchange  Bank  of  Canada  v.  Beg 323 

Drapery  Co.,  In  re 429 

and  Hop   Warehouses  v.  Land 

Financiers'  Association      1450 


F. 


Fabian,  Ex  parte,  Landrock,  In  re    131 

Fagan  v.  Monks     552 

Fairbnrn  v.  Household 1467 

Fairport,  The 1654 

Faithfull,  In  re,  Hard  wick  i\  Sutton  784 

In  re,  Moore,  Ex  parte     108 

Falcke  r.  Scottish  Imperial  Insurance  Co. 

1000, 1396 
Falconar'8  Trusts,  In  re,  Bradford  v.  Young      36 

Fanny  M.  Carvill,  The     1682 

Fanshawe  v.  London  and  Provincial  Dairy 

Co.    1468 

Fardell  v.  Chapman,  Chapman,  In  rr  1487 

Karman,  In  re,  Farman  r.  Smith  1999 

Farmer  v.  Farmer 890 

v,  London  and  North  Western  By.  1380 

Faraeirs  Settled  Estates,  In  re  1632,1911 

Farnell  v.  Bowman  318 

Farnworth  Local  Board  v.  Compton 868 

Farrar  v.  Farrars  536,  1259 

Farrer*.  Lacy 35,  1261,  1271, 1276, 1590 

v.Nelson   833,1091 

Farrington  v.  Farrington  907,908 

Faulkner,  In  re 1772 

Faure  Electric  Accumulator  Co.,. In  re     363,  422 

v.  Philli- 

part  393, 737 


Faust,  The 1658 

Fawcus,  In  goods  of    761 

Fawsitt,  In  re,  Galland  v.  Burton 30 

Fearon  v.  Aylesford  (Earl)    483,  664,  912 

Feast,  Ex  parte,  Feast,  In  re     107 

Fee  v.  M'Manus    2086 

Fellows  v.  Thornton 72 

©.Wood    966 

Fendall  v.  O'Connell   663,  943, 1601 

Fennessy  r.  Clark     646 

t?.  Day    520,1858 

v.  Babbits 1469 

Fenton,  Ex  parte,  Sissling,  In  re 151 

Ferens  v.  O'Brien 574 

Ferguson,  Ex  parte,  Buckley,  In  re 1769 

Ferns*  Carr 1733 

Ferret,  The     1721 

Fewings,  Ex  parte,  Sneyd,  In  re 188, 1023, 

1061, 1279 

Field,  In  re    1765, 1767, 1774 

In  re,  Hollyoak,  Ex  parte    139 

v.  Bennett  1410 

r.  Field  888,900 

p.  Lydall,  Tillet,  In  re , 806, 1493 

v.  White,  Bownson,  In  re  783,  788 

Fielding  v.  Cronin 787 

Findlaterv.  Tuohy    799, 1422 

Findlay,  In  re   970, 1906 

Fine  Art  Society  v.  Union  Bank     77, 1304, 1389 

Finlay  «.  Chirney 883, 1400 

Finley,  In  re,  Clothworkers'  Co.  or  Han- 
bury,  Ex  parte  122 

Finnis  to  Forbes,  Finnis,  Ex  parte  313 

Tower  Ward  Schools  Trus- 
tees, Ex  parte 314 

Finsbury  School  Board  Election,  In  re, 

Ajrea,  Ex  parte  41,  1592 

Firbank,  In  re,  Knight,  Ex  parte 88 

v.  Humphreys 373, 1618 

Fire  Queen,  The  1684, 1691 

Firmin,  In  re,  London  and  County  Banking 

Co.  v.  Firmin 612 

Firth  v.  North  Eastern  By 286 

*.  Slingsby   1147 

Fisher's  Case  452 

Fisher  and  Haalett,  In  re 778 

Fitt  v.  Bryant 72 

Fitzgerald's  Settlement,  In  re    1266, 1614, 

1871 

Fitzpatrick,  In  re 236 

r.  Waring 72 

Fitzroy  Bessemer  Steel  Co.,  In  re  363, 1143, 1308 
Flatau,  In  re,  Scotch  Whiskey  Distillers, 

Ex  parte  111,113 

Flavell,  In  re,  Murray  v.  Flavell 1334, 1872 

Fleck,  In  re,  Colston  v.  Boberts 2112 

Fleming  t?.  Brisley,  Brisley,  In  re 2058 

v.  Hardcastle   1764,1769 

r.  Hislop 1600 


i8 


TABLE    OF    CASES. 


Fleming  v.  Yeamen  1597 

Flemyng's  Trusts,  In  re  956 

Fletcher,  Ex  parte,  Fletcher,  In  re 116 

In  re,  Dore  v.  Fletcher 2041 

In  re,  Gillings  v.  Fletcher  2091 

v.  Bealey 1813 

Flewitt «.  Walker 1930 

Flint,  Ex  parte 58 

Coal  and  Cannel  Co.,  2*  re 419 

Flintham  v.  Roxburgh 507 

Florence   Land   and    Public   Works  Co., 

In  re,  Nicol's  case,  Tufnell  &  Ponsonby's 

case 391 

Flower,  In  re,  Edmonds  v.  Edmonds   2099,  2102 

-  v.  Metropolitan  Board  of  Works, 

In  re  1886, 1947 

Flynn,  In  re,  Guy  *.  McCarthy 809 

Foakea  v.  Beer  2,  478 

«.  Webb 668 

Fobbing  Commissioners  r.  Reg 669, 1607 

Foot  *.  Leslie 1161 

Foott  v.  Bean  1448, 1472 

Ford,  Ex  parte,  Chappell,  In  re...  141,  465, 1529 

Ex  parte,  Ford,  In  re 106 

v.Bames  709 

r.  Hoar 716 

«.  Metropolitan      and    Metropolitan 

District  Rys 1119 

r.  Miescke 1413 

v.  8hephard  1410 

v.  Smerdon  718 

Forde,  Ex  parte,  Delta  Syndicate,  In  re...    446 

Fore  Street  Warehouse  Co.,  In  re 377 

Foreman,  Ex  parte,  Hann,  In  re  206 

Ex  parte,  Price,  In  re 119 

Forrest  v.  Shore 1273 

Forster,  In  re,  Rawlings,  Ex  parte    166 

fc  Co.,  In  re,  Schumann,  Ex  parte  441, 

1188 

v.  Da  vies,  McRae,  In  re  ...  33,  803, 1329 

v.  Schlesinger 1495,  1900 

Foscolino,  The  1701 

Foskettv.  Kaufman 715 

Foster's  Trusts,  In  re   1916 

Foster,  Ex  parte,  Hanson,  In  re   101 

Ex  parte,  Webster,  In  re 87,  174 

Ex  parte,  Woolstenholme,  In  re  ...      98 

In  re,  Basan,  Ex  parte  114 

v.  Diphwys  Casson  Slate  Co 1229 

«.  Ward 220, 1325 

v.  Wheeler 479,  601, 1075 

Foulkes  r.  Quartz  Hill  Consolidated  Gold 

Mining  Co 849 

Fowker.  Draycott 936,  2061 

Fowler's  Trusts,  In  re  1909 

Fox's    Claim,    Northumberland    Avenue 

Hotel  Co.,  In  re 478 

Fox,  Ex  parte,  Smith,  In  re  95,  140 

In  re  1169 


Fox  v.  Railway  Passengers  Assurance  Co.  50, 997 

v.Smith  25,1045 

Foxwell  o.  Lewis,  Lewis,  In  re 495, 2109 

France  v.  Clark 387 

Francis,  Ex  parte,  Bruno,  In  re  1586 

Francke,  In  re,  Drake  v.  Francke    ...  807, 1455, 

1486 

Franke  t\  Chappell  1830 

Franks  v.  Worth,  Bridge,  In  re 1485 

Fraser,  In  re 49 

v.  Brescia  Steam  Tramways  Co. ...   420, 

537 

v.  Denison 688 

v.  Ehrensperger   49,616 

v.  Mason    496 

Frechette  v.  La  Compagnie  Manufacturiere 

de  St.  Hyacinthe 327,683 

Free  Fishermen  of  Faversham,  In  re  411 

Freeman's  Settlement  Trusts,  In  re 1918 

Freeman  v.  Newman    714 

Freke  v.  Calmady,  Hotcbkys,  In  re...  1894,  2111 
French,  In  re,  Love  v.  Hills. 1396, 1762 

v.Hope 1249 

v.  Municipal  Permanent  Building 

Society. 275 

French  Hoek  Commissioners  v.  Hugo...  331.  683 

Frewen,  In  re,  Frewen  «.  James    1634 

Friedeberg,  The. 543,1729 

Friedlander,  In  re,  Oastler,  Ex  parte  ...  98, 201 

Friend  v.  Shaw 547, 1111 

Frith*.  Cooke  1272 

v.  Simpson   1550 

Frowde  v.  Williams 1324 

Fry  v.Lane 1000,1923 

v.  Tapson 1875,1889 

Fryer,  Ex  parte,  Fryer,  In  re 105,  608, 895 

Fryman's  Estate,  In  re,  Fryman  c  Fry- 
man   210, 1094 

Fulham  Board  of  Works  v.  Smith 1215 

Union  r.  Wells  1223 

Fullagsen  v.  Walford    1674 

Furber  «.  Abrey VI 

v.Cobb  246,250,251,253 

Furlong  v.  South  London  Tramways  Co....  1173, 

1199,180 
Furness  v.  Davis 524 

Railway  v.  Cumberland  Building 

Society    671,1119 

Furnissv.  Phear    3018 

Fusee  Vesta  Co.  v.  Bryant  and  May...  1342, 1354 

Fussell  v.  Dowding  149$ 

v.  O'Boyle 1509 

Futcherv.  Saunders 507 


G. 


G.v.  M 20,885,16** 

Gabriel  v.  Blankenstein  122 


TABLE    OF    CASES. 


19 


Gainsborough  (Earl)  v.  Watcombe  Terra 

CottaCo 1306,1879,1891 

Gale,  In  re,  Blake  v.  Gale  1141 

Galland,  In  re  1747,1783,1787 

v.  Burton,  FawBitt,  In  re    30 

Gallard,  In  re,  Harris,  Ex  parte  199, 1770 

v.  Hawkins    497 

Games,  In  re,  Board  of  Trade,  Ex  parte  ...      91 

*.  Bonnor 40,  541,  1801, 1937 

Gamlen,  In  re,  Ward,  Ex  parte 117 

v.  Lyon,  Barrington,  In  re...  1228, 1615 

Gandy  v.  Gandy  4,  475,  629,  725,  911, 1399 

v.  Macaulay,  Garnett,  In  re   ...  623,625, 

754,  805, 1486 

Gapp  *.  Bond 224, 1658 

Garcia  v.  Garcia 891 

Gard  v.  Commissioners  of  Sewers  ...  616, 1213, 

1214 
Gardner  v.Jay  1471 

v.  Mansbridge    585 

v.  Smart 236 

v.Tapling  982,1478 

v.  Trechmann 1675 

Gardiner,  In  re,  Coulson,  Ex  parte 95,  944 

In  goods  of  2008 

v.  Conrthorpe  1994 

Gardiner's  Trusts,  In  re  1908 

Gare's  Patent,  In  re 1341 

Garfittv.  Allen 2115 

Games,  In  re,  Games  v.  Applin 984, 1899 

Garnett,  In  re,  Bullock,  Ex  parte 189 

In  re,  Gandy  v.  Macaulay  . . .  623,  625, 

754,  806, 1486 

In  re,  Robinson  v.  Gandy    949 

Garnett-Orme  to  Hargreaves 1628 

Garnham  v.  Skipper 1254,1450 

Garrett  v.  Middlesex  JJ 1052 

Garrod,  In  re 1160,1916 

"  Garston  "  Sailing  Ship  Go.  v.  Hickie 1668, 

1674 

Gaseoyne  v.  Bisley    1049 

Gaslight  and  Coke  Co.  v.  Hardy    842 

v.  Holloway  1107 

v.  St.  Mary  Abbott's 

Vestry 842,1209 

v.  South  Metropoli- 

tan Gas  Co 838 

*.  Towse     1088 

Gasonv.  Bich 8,844 

Gateshead  (Mayor)  v.  Hudspeth,  Hewitt's 

Estate,  In  re 304 

Oanlard  and  Gibbs'  Patent,  In  re  ...  1343, 1361 

-  v.Lindsay  1343 

Gayner  v.  Sunderland  Joint  Stock  Pre- 
mium Association 1018 

Gedling  Rectory,  In  re 1132 

Gee  v.Bell 1420,  1455,1486 

Geisel,  Ex  parte,  Stanger,  In  re  98, 118 

"  Gem  "  Trade-mark,  In  re 1838 


General  Horticultural  Co.,  In  re,  White- 
house,  Ebb  parte 70 

General  Horticultural  Co.,  In  re,  White- 
house's  Claim 368 

Genese,  In  re,  District  Bank  of  London, 

Ex  parte 144 

In  re,  Gilbert,  Ex  parte 755 

In  re,  Kearsley,  Ex  parte  ...  139, 170, 

173, 197 

Ex  parte,  Lascelles,  In  re  27,  609 

Gent,  In  re,  Gent-Davis  v.  Harris 610, 1315 

George  Gordon,  The 1729 

George  Roper,  The    1691 

Gera  v.  Ciantar 338 

Gerard  (Lord),  In  re,  Oliphant  v.  Gerard       948 

Germ  Milling  Co.  v.  Robinson 1345, 1348 

Gertrude,  The   1024, 1444, 1725 

Gettysburg,  The 1697, 1726 

Ghost's  Trusts,  In  re 734,  792 

Gibbes'  Settlement,  In  re,  White  v.  Ran- 

dolf 2098 

Gibbings  v.  Strong   1608 

Gibbon*,  In  re  796 

v.  Chambers 483, 1806 

v.  Hickson 226 

Gibbs  v.  Great  Western  Ry 1193 

v.Lamport 1716 

v.  Layland,  Marsden,  In  re  ...  1140, 1955 

Gibert  v.  Gonard  132,1920 

Gibson,  Ex  parte,  Lamb,  In  re 99, 168 

Ex  parte,  Stockton,  In  re   203 

v.  Way,  Currey,  In  re 933,  944 

v.Wise 1160 

Gilford's  Divorce  Bill 904,  905 

Gilford  and  Bury  Town  Council,  In  re 873 

Q  ilbert,  Ex  parte,  Genese,  In  re  755 

In  re,  Daniel  v.  Matthews    2050 

In  re,  Gilbert  v.  Huddlestone 544 

v.  Aviolet,  Heathcote,  In  re 494 

v.  Huddlestone,  Gilbert,  In  re 644 

v.  North  London  Ry 282 

v.  Trinity  House  Corporation  617, 1299, 

1718 

Gilchrist,  Ex  parte,  Armstrong,  In  re...  41, 134, 

922 

Giles,  In  re 796, 1901 

Gill,  Ex  parte,  Reg.  v.  Yorkshire  JJ 1176 

In  re,  Smith  v.  Gill 1487, 1910, 1918 

v.  Woodfin 39, 1482, 1609 

Gillard  v.  Cheshire  Lines  Committee   1118 

v.  Lawrenson,  Burge,  In  re  1 140 

Gillatt  v.  Colquhoun 1671 

Gillespie,  In  re,  Morrison,  Ex  parte ...  151,  204 

In  re,  Reid,  Ex  parte 162,  200 

In  re,  Robarts,  Ex  parte 143,  223 

Gillings  v.  Fletcher,  Fletcher,  In  re 2091 

Gilman'scase 450 

Gilmer,  In  re 767, 1068 

Gilroy  v.  Bowey 246 

4  A 


20 


TABLE    OF    CASES. 


Ginnett*  Whittingham 1923 

Glamorganshire,  The 1682, 1694 

Banking  Co.,  In  re,  Mor- 

gan's case    438 

Glanvill,  In  re,  Ellis  v.  Johnson 928,  942 

Glanville,  In  re,  Jenkins,  Ex  parte... 90,  99, 164 

Glascodine  and  Carlyle,  In  re 1759, 1769 

Glasgow  Corporation  v.  Miller  1567 

(Lord  Provost)  v.  Farie. 1226, 1961 

v.  Hillhead  Police 

Commissioners  1598 

and  South  Western  By.  v.  Mac- 

kinnon   292 

and  South  Western  By.  and  Lon- 

don and  North  Western  By., 

In  re  53 

Glen  v.  Fnlham  Overseers  1221 

Glenfruin,  The. 1661, 1705 

Glenister  v.  Harding,  Tomer,  7a  re 744,  748 

Glenny  and  Hartley,  In  re 1914 

Glenton  to  Haden,  In  re 1941 

Gliddon,  Ex  parte,  Wakeham,  In  re   146 

«.  Brodenen 481 

Gloucestershire  Banking  Co.  v.  Edwards  5, 1642 

Banking  Co.  v.  Phillips  ...   943, 

1463 

Glover  v.  Smith 2000 

Goad  v.  Empire  Printing  Co 630 

Goas,  Ex  parte,  Clement,  In  re 179, 620 

Godfrey,  Ex  parte,  Lazarus,  In  re 173 

Ex  parte,  Winslow,  In  re   136 

v.  Poole   828 

Godiva,The    1696 

Gold  v.  Brennan,  Steele,  In  re  1903 

Goldring  v.  Lancaster,  Ormston,  In  re 525 

Golds  and  Norton,  In  re 1948 

Goldsmid,  In  re,  Taylor,  Ex  parte    ...  163, 1887 

v.  Great  Eastern  By 1811 

Goldstrom  o.  Tallerman  242,245 

Gooch  v.  London  Banking  Association 428 

Good,  Ex  parte,  Salkeld,  In  re 120 

Goodall  v.  Harding  472 

Goodbody  v.  Gallaher  1428 

Goodden  v.  Coles  668,  693, 1266 

Goodenough,  Ex  parte,  Walmsley  v.  Mundy      57 

Goodesv.  Cluff 560 

Goodf  ellow  ».  Prince    1830, 1856 

Goodharto.  Hyett    520,684 

Gooding  v.  Ealing  Local  Board 857 

Goodland  v.  Ewing  787 

Goodman  v.  Blake    558,1043 

t;.  Robinson  69 

Goodwin  v.  Goodwin.. 906 

Goold,  Ex  parte,  Walker,  In  re...  123, 192, 193, 

1083, 1101, 1103 

In  re,  Goold  v.  Goold 1404 

v.  Birmingham,  Dudley  and  District 

Bank 1943 

Gordon  v.  James    1283, 1514, 1736 


Gornall  v.  Mason  762,200* 

Gorringe  v.  Irwell  India  Rubber  and  Gutta 

Percha  Works 61,433 

Gort  (Viscount)  v.  Rowney ....    529 

Gosling,  In  goods  of 2006 

Gosnell  v.  Bishop  536 

Gough  v.  Heatley 1478 

v.  Murdoch    848 

Gough's  Trusts,  In  re,  Great  Western  By., 

Ex  parte 1132 

Goulard  v.  Lindsay  1353 

Gould,  Ex  parte,  Richardson,  In  re  ......  88,140 

Ex  parte,  Salmon,  In  re. 1658 

Ex  parte,  Walker,  In  re...  123,192,193, 

1083, 1101, 1108 

In  re,  Official  Receiver,  Ex  parte   210 

Gouraud  v.  Edison  Gower  Bell  Telephone 

Co 650 

v.  Fitzgerald 637,1437 

Goutard*.  Carr 54,530,1428 

Gowo.  Foster. 2126 

Gowan  «,  Sprott 1650,1727 

v.Wright  613,1805 

Gower  v.  Postmaster-General 1079 

Grafton  v.  Watson. 637,1859 

Graham  v.  Edge. 417 

v.  Lewis  1202 

Grahame  v.  Grahame   80, 762, 1528 

Grand  Junction  Canal  Co.  v.  Petty    1970,1974 

Junction  By.  of  Canada  v.  Peter- 

borough (Corporation) ~ . .    326 

Trunk  By.  of  Canada  v.  Jennings ...  1302 

Grange  v.  Sturdy,  Haseldine,  In  re  ...  796,2025 
Grant,  In  re,  Whinney,  Ex  parte 136, 174 

v.  Coverdale 1678 

v.  Easton   1088,1421 

v.  Heysham,  Milne,  In  re  2050 

Grattan  v.  Langdale M.M 2064 

Graves  v.  Masters M 1515 

Gray,  In  re,  Dresser  v.  Gray  2083,2086 

In  goods  of ....  2007 

v.  Commissioners  of  Customs  .........  106S 

v.  Hopper. 651 

v.  Press  Association  1417 

v.  Stait 1098 

Great  Berlin  Steamboat  Co.,  In  re   ...    437, 823 
Great  Eastern  By.  v.  Goldsmid  1180, 1182, 1956 

Steamship  Co.,  In  re,  Wil- 

liams'Claim 1656 

Great  Indian  Peninsular  By.  v.  TumbulL..  1671 

Northern  By.  and  Sanderson,  In  re...  IHh 

1944 

v.  Tahourdin  1548 

Great  Western  Forest  of  Dean  Coal  Con- 
sumers' Go^  Tarns,  Carter's 


»••«••*■••*« 


■  •«••  *•*• 


Great  Western  Forest  of  Dean  Coal  Con- 
sumers' Co.,  In  re,  Craw- 
shay's  case  - 


421 


440 


TABLE    OF    CASES. 


21 


Great  Western   By.,  Ex  parte,  Gough's 

Trusts,  In  re  1132 

v.  Bagge     291 

v.  Bunch    286 

v.  Central  Wales  B y.  1552 

v.  McCarthy  295 

v.  Swindon  and  Chel- 

tenham By....     1114, 
1115, 1805 

Steamship  Co.,  In  re 378 

Wheal  Polgooth,  In  re 365, 422 

Grebert-Borgnis  v.  Nugent 604 

Green,  In  re,  Edmunds,  Ex  parte 200 

-  In  re,  Green  v.  Green 1792 

v.  Belfast  Tramways  Co 686 

f».  Bennett  1467 

*.  Biggs    1243 

v.  Brand  827, 1007 

t>.  Burgess,  Williams,  In  re 796 

v.  Green,  Green,  In  re  1792 

v.  Humphreys 1146 

«.  Paterson  498,  817,  936,  962, 

1823 

Greenbank  v.  Sanderson 526,  819 

Greene's  Estate,  In  re 1145 

Greene  v.  Flood 792,2059 

-  v.  Gordon,  Jones,  In  re  2096 

v.  Thornton  1477 

Greenway  v.  Bachelor 607,  718 

Greenwell  v.  Davison,  Davison,  In  re  2066 

—      v.  National  Provincial  Bank 79 

Greenwood's  Trusts,  In  re  1907 

Greenwood  v.  Hornsey  679,  681,  986 

Gregory  v.  Bdmondson,  Diggles,  In  re 2093 

Gregson,  In  re,  Christison  v.  Bolam 1284 

Gregson's  Trusts,  In  re    1916 

Grepe,  Ex  parte,  Grepe,  In  re   205 

v.  Loam  1479 

Greville's  Settlement,  In  re   1767 

Grey's  Case 392 

Brewery  Co.,  In  re  439,1770 

Settlements,  In  re,  Acason  v.  Green- 
wood        923 

Grey  (Earl)  v.  Durham  (Earl),  Durham 

(Earl),  In  re 622 

Gridley  v.  Swinborne  1858 

Griffith,  In  re 174 

In  goods  of 605,  2016 

v.  Blake  988 

v.  Bourke 2087,  2088 

Griffith-Boscawen  *.  Scott 2104 

Griffith  Jones  &  Co.,  In  re 1276, 1758 

Griffiths,  In  re  969,1077 

-  In  re,  Griffiths  v.  Lewis  809 

v.  Lancashire  J  J 1050 

-  v.  Lewis,  Griffiths,  In  re 809 

«.  London  and  St  Katharine  Dock 

Co 1189 

v.  Mortimer,  Mortimer,  In  re 2027 


Grimmett's  Trusts,  In  re 1163 

Grimwade,  Ex  parte,  Tennent,  In  re  ...  109,  443 

v.  Mutual  Society 360 

Grogan  v.  London  and  Manchester  Indus- 
trial Assurance  Co 995 

Grosvenor  v.  Grosvenor   893 

Bank*.  Boaler 354 

Grove,  In  re,  Vauoher  v.  Solicitor  to  the 

Treasury 1026, 1031 

Grover  v.  Loomes 1937, 1952 

Groves  v.  Volkart 1665 

Grumbrecht  v.  Parry   666 

Grundy  v.  Townsend 730, 1203, 1233 

Guest,  Ex  parte,  Russell,  In  re 109,  613 

Guilfoyle,  In  re   148, 177 

GuiJlemin,  Ex  parte,  Oriental  Bank  Cor- 
poration, In  re  436 

Guinness  v.  Fitzsimons. 990 

Guiterman's  Registered  Designs,  In  re 1859 

Gullischen  v.  Stewart  1665 

Gully  v.Smith  1976 

Gun  r.  McCarthy   752, 1231 

Gunn,  In  goods  of 493,  940, 1676, 1993 

Gunning's  Estate,  In  re  2041 

Guy,  In  re.  Scantlebury,  Ex  parte  200 

v.Churchill  1789 

v.Hancock    654 

v.  McCarthy,  Flynn,  In  re 809 

Gyhon,  In  re,  Allen  v.  Taylor 1460 

Gyll,  In  re,  Board  of  Trade,  Ex  parte 118 

Gyte  v.  Gyte 607, 895 


H. 


Haberdashers'  Co.,  Ex  parte 1127 

Haddan's  Patent,  In  re    656, 1351 

Haddon  v.  Haddon   905 

Hagan,  In  re,  Adamson,  Ex  parte    197 

Haigh  v.  Haigh 1480 

v.  Royal  Mail  Steam  Packet  Co.  283, 1301, 

1647 

Haines  v.  Guthrie 744 

Hale,  Ex  parte,  London  and  Provincial 

Electric  Lighting  Co.,  In  re  349 

Hale  and  Clarke,  In  re 1621 

and  Smyth,  In  re 1621 

Hall,  Ex  parte,  Beg.  v.  Cuming 58 

In  re 1342,1808 

In  re,  Branston  v.  Weightman 2024 

In  re,  Close,  Ex  parte 226 

In  re,  Hall  v.  HaU  1453, 1911,  2114 

Hall's  Settlement  Trusts,  In  re 1909 

Hall  v.  Billingham   1584 

v.  Brand 61,  755 

v.  Bromley 497 

v.  Colbeck,  Colbeck,  In  re 1406 

v.  Comfort 228, 1278, 1421 

v.  Derby  Sanitary  Authority,  812,  871, 1370 

4  A  2 


22 


TABLE    OF    CASES. 


Hall  v.  Ewin 1088 

v.  Hale 1800, 1902 

v.  Hall,  Hall,  In  re, 1453,1911,  2114 

*.  Hewaid 1280 

v.  London,  Brighton,  and  South  Coast 

By 26,  292, 1562, 1553 

v.  Truman 662 

v.  West  End  Advance  Co 740, 1254 

*  Co.,  In  re 416,  449, 1310 

Hallas  v.  Robinson  259 

Hall-Dare  v.  Hall-Dare 624,  816 

Hallett  v.  Furze  1270 

v.  Hastings,  Hastings  (Lady),  In  re,  928, 

1154,  2118 

Halliwell,  In  goods  of 2011 

HallowBV.  Lloyd 1899 

Hamill  v.  Lilley 20 

—  v.  Murphy  736 

Hamilton,  In  re  974 

In  goods  of 2008 

v.  Barr 1415 

v.  Bone 585 

(Duke)  v.  Dunlop  620,1224 

v.  Pandorf 1668 

Hamlet,  In  re,  Stephen  v.  Cunningham  ...  2047 

Handing  v.  Elliott,  Coulton,  In  re 1482 

Hammond  v.  Bussey 605 

-  v.Hocking 251 

Hampden  v.  Wallis 67,  68, 1426 

Hampshire,  JJ.,  In  re * 1594 

Hanbury,  Ex  parte,  Finley,  In  re  122 

v.  Cundy  1068,1092 

Hance  v.  Harding 95, 160 

Hancock,  In  re,  Hancock  v.  Berrey  ...  1144, 1245 

v.Hancock 947 

Hankey  v.  Martin  1237 

Hankinson  v.  Barningham 2014 

Hanmer  v.  King  558 

Hann,  In  re,  Foreman,  Ex  parte 206 

Hannay  v.  Graham 1436 

Hannington  v.  True,  Smith,  In  re  2112 

Hanrahan  v.  Limerick  Steamship  Co.  554, 1190 

Hansa,  The    1698 

Hanson,  In  re,  Foster,  Ex  parte 101 

v.  Maddox    541,1043 

Hanson's  Trade-mark,  In  re 1839, 1841 

Harbord,  In  re 1842 

Hardaker  v.  Moorhouse 1912 

Harden  Star  Hand  Grenade  Co.,  In  re  ...  1839 
Harding,  In  goods  of 2012 

v.  Barker 1199,1215 

v.  Board  of  Land  and  Works 821 

v.  Harding 62,  889 

V.Lyons 1499 

Hardxnan  and  Child,  in  re  1942 

v.  Child  1942 

-  v.  Maffett  955 

Hardwick,  In  re 23, 1741 

—      In  re,  Hubbard,  Ex  parte 226 


Hardwick,  The  755, 1715 

v.  Sutton,  Faithfull,  In  re 784 

Hardwickev.  Wilmot,  De  Eos'  Trnst,  law   945 

Hardwidge,  In  re 43 

Hardy  v.  Fothergill 186 

v.  North  Biding  JJ 7, 1068 

Hargrave  v.  Eettlewell 1429 

Hargreave's  Trust,  In  re,  Bradford  (Mayor), 

Ea  parte -..  1138 

Hargreaves  and  Thompson,  In  re ~ 1989 

Harker  v.  Edwards 1524 

Harnett,  In  re,  Leahy  v.  O'Grady 754,805 

v.  Miles ~..   832 

Harper  v.  Aplin  ~ 1266 

v.  Davis  554 

Harrald,  In  re,  Wilde  v.  Walford ...  1787, 1898 

Harrington,  The  -..  I730 

Harris,  Ex  parte 1097 

Ex  parte,  Gallard,  In  re 199, 1770 

In  re  .... -..  177* 

In  re,  Harris  v.  Harris 807 

v.Briscoe   - ^ 

v.  Davies  » 

v.  De  Pinna ^ 

v.  Marcus  Jacobs  1667,1677 

v.May  -   W 

v.  Bothwell  I*39 

v.  Slater 549 

v.  Tenpany ^ 

Harris'  Settled  Estates,  In  re  937,1627 

Harrison,  Ex  parte,  Cannock  and  Rugelev 

Colliery  Co.,  In  re  .... W 

Ex  parte,  Peake,  In  re ......  159,842 

Ex  parte,  Jordan,  In  re 1* 

In  re 1777,1781 

In  re,  Harrison  v.  Harrison  1615, 1824 

In  re,  Latimer  v.  Harrison 786 

In  re,  Perry  v.  Spencer 498 

In  re,  Turner  v.  Hellard   *>17 

v.  Abergavenny  (Marquis) 1447 

v.  Cornwall  Minerals  By.   1788 

v.  Harrison 901, 903, 927, 1789 

v.  Harrison,  Harrison,  In  re.. .1615, 1884 

v.  London  and  North  Western  By.  1802 

v.  McLlfeel —  M6 

v.  National  Provincial  Bank IM* 

Harrop's  Trusts,  In  re 16S* 

Harsant  v.  Blaine  1022, 1234, 1525 

Harston  v.  Harvey —   *** 

Hart,  In  re,  Caldicott,  Ex  parte  147, 153 

v.  Hernandes   **** 

v.  Manston,  Spencer,  In  re  .... 2016 

Hartcup  v.  Bell  44,  734, 1064, 10» 

Harte  v.  Meredith -•-•■   ^ 

Hartley,  In  re,  Stedman  v.  Dunster 2079 

v.  Wilkinson 18* 

Harton,  The  16W 

Hartoppv.  Huskisson  - **** 

Harvest,  The  ie* 


•  •...•.•......... M.«.  •••••> 


•  ••»••••••* 


TABLE    OF    CASES. 


23 


Harvey,  Ex  parte,  Fl&jer,  Inre   167 

In  re,  Harvey  v.  Lambert 780 

In  re,  Peek  v.  Savory  2081 

Inre,  Phillips,  Ex  parte 179 

In  re,  Wright  1?.  Woods    809 

v.  Croydon  Union  Rural  Sanitary 

Authority    1489 

— —    v.  Dougherty   1418 

v.  Haryey 69, 1641 

v.  Lambert,  Harvey,  In  re    780 

v.  Lovekin  666,657,663,887 

v.  Municipal  Permanent  Investment 

Building  Society    272 

v.  Olliver 1897 

Harvey's  Estate 1785 

Harwood,  In  re 1159, 1902 

Hateldine,  In  re,  Grange  v.  Sturdy 796,  2025 

Hasker,  Ex  parte 1177, 1493 

v.  Wood 622 

Haslam  Engineering  Co.  v.  Hall   27, 1348 

— -    Foundry  and  Engineering  Co.  v. 

Goodfellow 1343 

Hassard  v.  Clark   833 

Hassonv.  Chambers 707 

Hattie's  Trusts,  In  re  2022 

Hasties  and  Crawfurd,  In  re  1774 

HastingB,  In  re,  Dearie,  Ex  parte 103 

(Lady),  In  re,  Hallett  v.  Hastings   928, 

1154,  2118 

Hatchard  v.  Mege 1400, 1834 

Hatten  v.  Russell 1620, 1933 

Hatherley  v.  Dunning,  Dunning,  In  re 783 

Hawes,  Ex  parte,  Byrne,  Inre  1 156 

— —  v.  Bauman 176 

v.  Curtis,  Curtis,  In  re    917 

v.  Hawes    900 

v.  South  Eastern  By.  289,602 

Hawke,  In  re,  Scott,  Ex  parte  84 

v.  Brear 53,  631 

Hawken  v.  Shearer  1295 

Hawkesworth  v.  Chaff ey 465 

Hawkins  v.  Hawkins    894 

Hawksford  v.  Giffard 333,1039 

Haydon  v.  Brown 231 

Haynes,  In  re,  Kemp  v.  Haynes    1633,  2075 

Hayson,  In  re,  Booth  v.  Trail 70 

Hayward's  Trade  Mark,  In  re... IS37, 1848, 1861, 

1866 
Hayward  v.  East  London  Waterworks  Co.  989, 1965 

v.  Lely  503,604 

v.  Moss  53 

k  Co.  v.  Hayward  &  Sons   ...635, 1833 

Haywood  v.  Silber. 1076 

Haseldine  v.  Heaton 1105 

Hade's  Settled  Estates,  In  re    1624 

Hatlehurst,  Ex  parte,  Beswick,  Inre  86 

Headington  Union  v.  St  Olave's  Union  ...  1381 
Heap,  In  re,  Board  of  Trade,  Ex  parte. 180 

v.  Burnley  Union    862 


Heap  v.Day  1863 

Heathcote,  In  re,  Gilbert  v.  A  violet 494 

v.  Livealey 166 

Heaton's  Trade-mark, Inre,  1  $38 

Heawood  v.  Bone  1097 

Hector,  The 40,1699,1701 

Hedgely,  In  re,  Small  v.  Hedgely 793, 929 

Hedges  v.  London  and  St.  Eatherine  Docks 

Co.    1717 

Heinrich  Bjorn,  The 1715 

Heintz,  Ex  parte,  Heintz,  In  re 177 

Helder,  Ex  parte,  Lewis,  In  re 101, 168 

Hellard  v.  Moody, Ridge, Inre 1632 

Hellierv.  Hellier  1995 

Helmore  v.  Smith 461, 766  1332, 1338 

Hemsworth  Free  Grammar  School,  In  re,. . .    814 
Henderson,  Ex  parte,  Henderson,  In  re  109, 901 

In  re,  Nouvion  v.  Freeman    ...  1039 

v.Maxwell 1445 

v.  Preston  1173, 1636 

v.  Rothschild 399, 1234, 1619, 1870 

Hendry,  In  re,  Watson  v.  Blakeney 302 

v.  Turner 1837 

Henley,  In  goods  of 2014 

Hennessy  v.  Wright  637,  647,661, 1438 

Henry  v.  Armitage 508,509 

v.  Strong,  Coleman,  In  re  974, 1880, 2040 

Henty  v.  Wrey 616,1619 

Hepburn,  In  re,  Smith,  Ex  parte  145, 11 38 

v.  Leather 1795 

Heppenstall  v.  Hose. 1941 

Herbert,  In  re   1765 

Hercules,  The 1726 

Herman  v.  Jeuchner  • 484,  594, 1234 

v.  Royal  Exchange  Shipping  Co.  738, 1669 

v.  Zeuchner 484,  594, 1234 

Hermann  Loog,  In  re,  Ramsay's  case    419 

v.  Bean. .  .639, 991, 1135, 1390, 1526 

Hernando,  In  re,  Hernando  v.  Sawtell. .  .1036, 2105 

Hersantv.Halse 705 

Heskev.  Samuelson 1196 

Hesketh  v.  Bray 1572 

Heslin  v.  Fay 1335 

Hester  v.  Hester 1763, 1764 

Hetherington'8  Trusts,  Inre  1915 

v.  Groome    239,249 

v.  Hetherington 905 

Hettihewage  v.  Queen's  Advocate 332 

Hewat's  Divorce  Bill 904 

Hewett  v.  Murray  769,1466 

Hewitaon*.  Fabre 1413 

Hewitt,  Ex  parte,  Hewitt,  Inre  187,  210 

Hewitt's  Estate,  In  re,  Gateshead  (Mayor) 

v.Hudspeth  304 

and  Brett's  case 445 

Heyes  v.  Heyes 894,  897 

Heywood,  Inre 563 

v.  Mallalieu 1934 

v.  Manchester  (Bishop) 89 


*4 


TABLE    OF    CASES. 


Heyworth,  Ex  parte,  Bhodes,  In  re 114 

v.  London  (Mayor) 1638 

Hibernian  Joint  Stock  Co.  v.  Fottrell  1402 

Hickey,  In  re,  Hickey  v.  Colmer  612 

Hickley,7*r* 1766 

-  v.Strangways,  Stiangways,  In  re     1622 
Hickman,  In  re,  Strawbridge,  Ex  parte  94, 175, 

176 

v.  Williamson,  Johnson,  In  re  ...  2029 

Hicks  v.  Dunstable  Overseers 1369 

Hiddingh  v.  De  ViUiers    329,  775 

-  v.  Denyssen 339 

Wiggins,  In  re.  Day  v.  Tornell  1576,1618 

and  Percival,  In  re  1937 

v.  Browne 1433 

v.  Hall  850 

v.Hill    483 

v.  Scott 1509 

Higgs  v.  Weaver,  Weaver,  In  re 209 

Highworth  and  Swindon  Union  v.  West- 

bnry-on-Severn  Union 1382 

Hilbersv.  Parkinson 951 

Hill,  Ex  parte,  Darbyshire,  In  re 204 

—  Em  parte,  Easy,  In  re  84,112 

Em  parte,  Lane,  In  re 240 

In  re  1769, 1763, 1776 

to  Chapman,  In  re 2029 

v.  East  and  West  India  Dock  Co 128 

v.  Edward    866, 1086 

v.  Grant,  Dickson,  In  re 971 

v.  Hart-Davis 653,  762, 1604 

v.  Somerset 1977 

v.  Spnrgeon,  Love,  In  re    813, 1896 

fcCo.tr.  Hill   353,488 

Hilleary  and  Taylor,  In  re 532 

Hillyard  v.  Smyth 1409 

Hilton  t>.  Tncker  226,1367 

Hinks,  In  re,  Verdi,  Ex  parte   142 

Hinshelwood,  Ex  parte,  Ellis,  In  re 103 

Hints,  Ex  parte,  Hints,  In  re,  177 

Hipgrave  v.  Case. 1503, 1798 

Hire  Purchase  Furnishing  Co.  v.  Richens    408 

Hitchin8  9.  Morrieson  906, 2032 

Hoarev.  Hoare 306 

v.  Stephens    1274 

Hobbs,  In  re,  Hobbs  v.  Wade. 971, 1151 

«.  Wayet 772, 1877,  2092 

Hobson,  In  re    154 

In  re,  Walker  v.  Appach  ...  1819, 2125 

7a  re,  Webster  v.  Bickards 924 

Hockady,  In  re,  Kelson,  Ex  parte    257 

Hookey  v.  Evans 1041 

Hodge  v.  Beg 325 

Hodges  f>.  London  Tramways  Omnibus  Co.  990, 

1223 
Hodgson,  In  re,  Beckett  v.  Bamsdale     728,  764, 

805,  807, 1329 
Hodkinson  v.  London andNorth- Western  By.  286 
Hodson  and  Howes,  7a  re  1243  | 


Hogan  v.  Sterrett 705 

Hogg  v.  Brooks 1099 

Hohenzollern  Actien  Gesellschaft  and  the 

Contract  Corporation,  In  re   46 

Holborn  Union  v.  Chertsey  Union  26, 1385 

Viaduct  Land  Co.  «.  Beg.   ...597,1673 

Holburne,  In  re,  Coates  v.  Mackillop  303 

Holden,  In  re,  Holden  v.  Smith    2059 

In  re,  Official  Receiver,  Em  parte  160, 

1896 
Holgate  «.  Brett    1368 

v.  Shutt     277,1461,1452 

Holland,  In  re,  Warren,  Ex  parte    157 

v.  Dickson,  or  Crystal  Palace  Co.    355 

v.  Worley    680,965 

Holliday,  Ex  parte,  Emperor  Life  Assu- 
rance Society,  7a  re    —.    440 

and  Godlee,  In  re  ~ 1756 

and  Wakefield  (Mayor),  In  re     55, 

1961 
HoUingshead,    7a    re,     Hollingshead  v. 

Webster  1147 

Hollingworth  v.  Willing,  Weir,  In  re    628, 1309 

Hollins  v.  Verney 673 

Hollman  v.  Pullin    1520 

Holloway,  In  re,  Holloway  «.  Holloway ...  1884 

In  re,  Young  v.  Holloway     649, 669, 

2014 

Holly  v.  Burke  706 

RoYLjoek,  Ex  parte,  Field,  In  re  139 

Holmes,  7»  re 1257, 1495 

v.  Brierley    * 883,967 

v.  Durkee  220,468,1627 

v.  Shaw   ....  1606 

Holt  v.  Beagle  1*7* 

Holton  v.  London  and  South- Western  Ry.    281 
Holy  Trinity  Church,  Stroud  Green,  A  re   OS 

Holyland  v.  Lewin   ~ 2101 

Homan,  In  goods  of 3009 

Home,  Exparte,B.ome,Inre  144,161,827,943 

7a  re,  Edwards,  Ex  parte. 87 

Home  Secretary  and  Fletcher,  In  re    1229 

Homer  v.  Cadman    1976 

District  Consolidated  Gold  Mines, 

In  re,  Smith,  Ex  parte    382 

Homfray,  In  goods  of —•  1*99 

Honeybone  v,  Hambridge 710 

Honygar,  Ex  parte,  Mahler,  In  re   -..     89 

Hood  v.  Bandell,  Bandell,  In  re *• 

Hooper  v.  Exeter  (Mayor)  1333 

"■^^■™  tr.  xiawKins  ..«•••.••••...«..««.«.*•>«  ••••  x9^f 

v.  Smith,  Smith,  In  re  31 

Hope,  The  ••  1« 

v.  Croydon  and  Norwood  Tramways 

Co. .-     *M 

*.  Evered    H*1 

Hopkinson  v.  Caunt **** 

Hopper's  Trusts,  In  re     —  !**• 

Horace,  The  636,1713 


TABLE    OF   GASES. 


»5 


Horan  v.  Macmahon    626, 1741 

Hordern  v.  Commercial  Union  Assurance 

Co 751, 1006 

Hornby  v.  Silvester 841 

Home,  In  re,  Nassau,  Ex  parte    126 

and  Hellard,  In  re  371 

Home's  Settled  Estate,  In  re 1623 

Horner,  In  re,  Eagleton  v.  Horner  ...  2023, 2032 

v.  Cadman  1976 

v.  Whitechapel  Board  of    Works  638, 

1184, 1216 
Horniblow,  In  re,  Official  Receiver,  Em  parte     90 

Horsbnrgh's  Application,  In  re    1843, 1846 

HorseH  v.  Swindon  Local  Board    859 

Horsley  v.  Price    1667 

Horton,  In  re,  Horton  v.  Perks   735,  960 

Horwood,  In  re 761, 1919 

Hoeking  v.  Smith 272, 1247 

Hospital  for  Incurables,  In  re 312,  751 

Hotchkin's  Settled  Estates,  In  re 1637 

Hotchkys,  In  re,  Freke  v.  Calmady...  1894,  2111 
Hough,  Ex  parte,  Windus,  In  re 154, 155 

v.  Head 1012 

v.  Windus    154,767,1804 

Houghton,  In  re,  Houghton  v.  Brown 2061 

v.  Sevenoaks  Estate  Co 1268 

Houghton's  Estate,  In  re 1636 

Houlder  v.  Merchants'  Marine  Insurance  Co.  101 1 

Hounsell  v.  Suttill    610 

House,  Ex  parte,  May,  In  re  ...  725,  731, 1286, 

1395 

Property  and   Investment    Co.  v. 

Horse  Nail  Co. 1406 

Household,  In  re,  Household  v.  Household  1611 

v.  Fairburn 1352,1832 

Houstoun  v.  Sligo  (Marquis)  726, 747, 1077, 1433 
Howard  v.  Clarke 1173,1357 

v.  Graves 567 

v.Harris 74 

v.  Maitland 1946 

v.  Patent  Ivory  Manufacturing  Co.  366, 

402 

v.  Refuge  Friendly  Society  ...  482, 837, 

1001 
Howarth  v.  Brearley 1206 

v.  Howarth  ...  619,  896,  897,  898, 1491 

Howe,  Inre  88,184 

In  goods  of   2032 

v.  Finch 1194 

v.Smith  1797,1960 

Howell  v.  Dawson 1042,1455 

Howitt  v.  Nottingham  and  District  Tram- 
ways Co. 1862 

Hewlett  v.  Hodson,  Coppard,  Inre 2038 

Howorth  v.  Minns 1047 

Hoyland  Silkstone  Colliery,  In  re 419 

Hubback,  In  re,  International  Hydropathic 

Co.  v.  Hawes    443,783 

Hubbard,  Ex  parte,  Hardwiok,  In  re 226 


Hubbuck  v.  Helms   374,1482 

Hudson's  Trade-marks,  Inre 1854 

Hudson,  In  re,  Creed  v.  Henderson    ...  474,  478 

v.  Osgerby  537,1858 

Hugall  v.  McKean 1081 

Huggin8,  Ex  parte,  Woodward,  Inre  1 26 

Hughes'  Trustees,  Ex  parte,  Ruthin  Ry., 

Inre    1319 

Hughes,  Ex  parte,  Hughes,  Inre  115, 116 

-  Ex  parte,  Thackrah,  In  re 127 

Inre  61,1999,2002 

In  goods  of 2001 

In  re,  Hughes,  Ex  parte  115,116 

-, —    v.  Anderson,  Butler's  Trusts,  In  re       9, 

883,  1820 

v.  Coles    1153 

v.Finney. 663 

v.  Little  30,  237,  242,  257, 1045 

v.  Twisden 823, 1141, 1327,  1760 

v.  West   798,1402 

Hugill  v.  Wilkinson 1152 

Hulda,  The 1722 

Hulkes,  In  re,  Powell  v.  Hulkes 792 

Hull,  Barnsley,  and  West  Riding  Ry.,  In 

re 1541, 1549 

Barnsley,  and  West  Riding  Junction 

Ry.  v.  Yorkshire  and  Derbyshire 

Coal  Co 299 

Hulme's  Trusts,  In  re 1908 

Humber,  The 1729 

Hume,  In  «  1919 

In  re,  Trenchard's  Will,  Inre  1919 

Humphery  «.  Sumner  40 

Humphrey  v.  Earle  713 

Humphreys  v.  Jones 1769 

Humphries,  In  re,  Smith  v.  Millidge 2024 

v.  Taylor  Drug  Co 1489 

Hunniugs  v.  Williamson 749, 1208 

Hunt's  Trusts,  In  re 2098 

Hunt,  Ex  parte,  Cann,  In  re 256 

v.  Fensham 767 

v.  Hunt 913,  928,  988 

v.  Parry,  Alford,  In  re 2123 

V.Williams. 837,1157 

Hunter  v.  Johnson    1594 

v.  Myatt   1271 

v.  Northern  Marine  Insurance  Co.  1010 

Huntingdon  Election,  In  re,  Clark,  Ex 

parte   610 

Hurlbatt  and  Chaytor,  In  re 1927 

Hunt  v.  Hurst  811 

-  v.  Parry,  Alford,  In  re 2123 

v.Taylor 1296 

Husband  v.  Martin,  Clark,  In  re  806 

Hutcheson  v.  Eaton   46,1620 

Hatchings  to  Burt,  In  re 924 

— —     v.  Humphreys 1801 

Hutchinson,  Ex  parte,  Hutchinson,  In  re  155, 

772 


26 


TABLE    OF    GASES. 


Hutchinson,  In  re,  Alexander  v.  Jolley   ...  2101 

Jk  re,  Ball,  Ex  parte. 163 

In  re,  Hutchinson  or  Plowden, 

Ebb  parte  « 155,772 

In  re,  Hutchinson  «.  Norwood  1462, 

1785 

v.  Norwood .. 981 

v.  Norwood,    Hutchinson,  In  1452, 

r*..„ 1785 

Huth  v.  Lamport  1716 

Hntton,  In  re,  Benwell,  Ex  parte 133 

Huxley  v.  West  London  Extension  By.   ...    621 

Hyatt,  In  re,  Bowles  v.  Hyatt  789, 1140 

Hyde,  Ex  parte,  Connan,  In  re 106 

and  Co.'s  Trade-mark,  In  re  ...  1846,  1850 

v.  Beardsley  55,  525,  539 

v.  Entwistle  1978 

v.Hyde  762,768,773,900,903,931 

Hyett  v.  Melon 493 

Hymanv.  Helm    1432 


Ida,  The 1650, 1730 

Ide,  Ex  parte,lde,  Inre 107 

levers,  In  goods  ol 1993 

Ihlee  v.  Henshaw 1856 

LUidge,  In  re,  Davidson  v.  Illidge 792 

Illingworth  v.  Bulmer  East  Highway  Board     26, 

1073 

Hlsley  v.  Bandall,  Taylor,  In  re 2127 

Imbert-Terry  v.  Carver. 1421 

Immacolata  Concezione,  The 1656,  1 727 

Imperial  Continental  Water  Corporation, 

In  re 438 

—  Gaslight  and  Coke  Co.  v.  West 

London  Junction  Gas  Co.  838 

Ince  v.  Thorburn  832 

Inchiquin  (Lord)  v.  Lyons 1099 

Incorporated  Law  Society,  Ex  parte,  Chaf- 
fers, Inre  ...  1733 

t\  Bedford 1793 

Ind  v.  Emmerson 647 

Inderwick,  In  re  1763 

v.  Leech 1081 

Indian Zoedone  Co.,  Inre  406, 408 

Indus,  The 1696 

Ingham,  In  re,  Craven  or  King,  Ex  parte  .    148 

v.Sachs  1030 

Ingle  t>.  M'Cutchan  63, 1782 

Ingleby  and  Norwich  Union  Insurance  Co., 

Inre    1884 

Inglis  f>.  Stock  1009 

Ingram  v.  Little    1146 

Inland  Revenue  Commissioners,  Ex  parte  1561 
v.  Glasgow 

and  South  Western  By.   1559 


Institution  of  Civil  Engineers,  In  re* 1562 

Instone  v.  Elmslie.. ...... ............ —••..—•—«•  1371 

Interleaf  Publishing  Co.  v.  Phillips  ...  751, 1557 
International  Marine  Hydropathic  Co.,  In 
«•«  425 

International  Marine  Hydropathic  Co.  e. 

Hawes,  Hubback,  In  re  ~ 443,783 

Ipswich  Union  «.  West  Ham  Union 1386 

Irish  Land  Commission  v.  Grant 701, 1153 

Isaac,  In  re,  Jacob  v.  Isaac 942, 1443 

Isaacs,  In  re,  Miles,  Ex  parte 206,1586 

v.Hardy    472,1580 

Isaacson  v.  Dnrant    704,  718,  719,  720,  721, 1025 

Isca,  The 1713,1721 

Isis,  The 1498, 1722 

Isle  of  Wight  By.  v.  Tahourdin. 406 

Ives,  In  re,  Addington,  Ex  parte  ...  85,  550, 609 
Izard,  Ex  parte,  Chappie,  In  re. 125, 253 

Ex  parte,  Vanderhaege,  In  re...    152, 206 


J. 

J.  H.  Henkes,  The 1698 

Jablochkon*  Electric  light  and  Power  Co., 

Inre    416 

Jack,  Inre 196 

Jackson,  Ex  parte,  Sunderland  32nd  Uni- 
versal Building  Society,  In  re  ..    278 

In  re,  Shiers  v.  Ashworth 2037 

In  re,  Smith  v.  Sibthorpe  ...  1236, 1821 

In  re,  Walker,  In  re 754,883 

and  Woodburn,  In  re 1940 

v.  Astley 487,990 

v.  Hill 1191 

v.  Kruger    1405 

v.  Munster  Bank  359,405 

v.  Napper 1848 

v.  Northampton  Street  Tramways 

Co 110* 

v.  Smith,  Digby,  Ex  parte  1791 

Jacob  v.  Isaac,  Isaac,  In  re 942,1443 

Jacobs  v.  Credit  Lyonnais  1038 

v.  Dawkes 557 

v.  Monck    1408 

Jacoby  v.  Whitmore 486,488 

Jacques  v.  Harrison 1397, 1420, 1479 

Jagger  v.  Jagger   953 

James,  Ex  parte,  Maiden,  Inre    ...    94, 95, 145 

Ex  parte,  Mutual  and  Permanent 

Benefit  Building  Society,  In  re...  1526 

Inre  95,1160,1733 

v.  Coachman    625, 1896 

v.  Dearmer,  Dearmer,  In  re 922 

v.  Despott   1412 

v.  Lovel    990 

V.Nicholas 1562 


TABLE    OF    CASES. 


27 


James  v.  Parry  ' 1842 

v.  Bicknell  1736 

v.  Wyvill 857 

v.  Yonng 1229 

James'  Settled  Estates,  In  re   1626,  2042 

James's  Trade-Mark,  In  re 1842 

Jameson  v.  Midland  By 290,  491,  603 

Japp  v.  Campbell  1657 

Jarrett  v.  Hunter 470 

Jaynes,  Ex  parte,  Dowson,  In  re  198 

Jeffery  v.  Cancer  Hospital  1998 

Jeffreys,  Ex  parte. 1069 

Jellard,  In  re 1487,  1900 

Jenkin'8  Case    141,  394 

Jenkins,  Ex  parte,  Glanyille,  In  re...  90,  99,  164 

v.  Rees 1466 

Jenkinson,  In  re,  Nottingham  Bank,  Ex 

parte    126 

v.  Brandley  Mining  Co 369 

Jenksv.  Torpin 836 

Jenner-Fust  v.  Needham 1274 

Jenneyv.  Mackintosh 1418 

Jennings'  Estate,  In  re    1243 

Jensen,  In  re,  Callow,  Ex  parte  125, 198 

Jersey  (Earl)  v.  Neath  Union 1226 

Jesus  College,  Cambridge,  Ex  parte 1128 

Jetley  v.  Hill 914 

Jewson  v.  Gatti 1295 

Jobling,  Ex  parte,  Wheal  Buller  Consols, 

In  re    444 

Johann  Sverdrup,  The 1679 

John,  In  goods  of 2008 

John  Mclntyre,  The 1685 

Johnson,  Ex  parte,  Chapman,  In  re   100,  236, 

255,  260,  762 

Ex  parte,  Johnson,  In  re 102 

In  re    460 

In  re,  Johnson,  Ex  parte 102 

In  re,  Hickman  v.  Williamson    ...  2029 

In  re,  Sly  v.  Blake    802,  1145 

In  re,  Wagg  v.  Shand  805 

and  Tostin,  In  re 1939 

and  Weatherall,  In  re 1756 

v.  Altrincham  Permanent  Benefit 

Building  Society    276 

v.  Croydon  (Mayor) 613 

v.  Hook  1866 

v.Johnson  936 

Johnston,  In  re,  Cockerell  v.  Essex  (Earl)  1578, 

2055,  2070,  2072 

v.  English   1403 

v.  Great  Northern  By 1303 

v.  Hill,  Dawson,  In  re 2080 

v.  Johnston  627,  824,  963 

v.  Salvage  Association  1019, 1458, 1534 

Johnstone's  Settlement,  In  re 1628 

Johnstone,  In  re,  Abrams,  Ex  parte 138 

In  ref  Angier,  Ex  part e 200 

In  re,  Singleton,  Ex  parte  89 


Johnstone*.  Browne  606,  930 

v.Marks  966 

v.  Milling 490 

v.  Spencer  (Earl)   496 

Jonas  r.  Long 557 

Jones's  Trade*  mark,  In  re  1835 

Jones,  Ex  parte,  Stephens,  In  re  203 

In  re 1160,  1624, 1765, 1902 

In  re,  Calver  v.  Laxton    786 

In  re,  Greene  v.  Gordon  2096 

In  re,  King,  Ex  parte  1760 

v.Andrews  31,661 

v.  Ashwin 735, 1328 

v.  Blake,  Blake,  In  re  802,  811, 1881 

v.  Cheverton    87 

v.  Curling  521,  532,  541 

v.  Dorothea  Co 1101 

v.Harding  2004 

v.Harris 1507 

v.  Hawkins,  Stocken,  In  re 801 

v.  Jaggar 613 

v.Jones    1068 

v.  Liverpool  Corporation  1296 

v.  Mason,  Muffett,  In  re...  795,  2035,  2079 

v.  Parry   859 

v.  Richards 661 

v.  Scottish  Accident  Insurance  Co....  1417 

v.  Slee 830 

v.Thomas    636 

v.  Whitaker 1531 

v.  Williams,  Williams,  In  re  82,  210, 1808 

Jones'  Trustees  v.  Gittens  655, 1538 

Jonmenjoy  Coondoo  v.  Watson  1391 

Jordan,  In  re,  Harrison,  Ex  parte    139 

In  re,  Kino  v.  Picard  932,  933 

Joseph  v.  Lyons  241,259 

Josolyne  v.  Meeson   1211 

Jowett  v.  Idle  Local  Board 852 

Joynt's  Divorce  Bill 904 

Judge  v.  Bennett 567,  685 

Judkin's  Trusts,  In  re 791,  971,  2123 

Jupp,  In  re,  Jupp  v.  Buckwell  916 

v.Powell 1146 

Justice  v.  Fooks 1137 

Justitia,The  1656 


K. 


Kaltenbach  v.  Lewis 1517 

Kane's  Trusts,  In  re 1630 

Kannreuther  v.  Geiselbrecht,  Klcebe,  In  re  794, 

1034 

Karo,  The    ....' 1695 

Kaye  v.  Sutherland  1417 

Kearney  v.  Great  Southern  and  Western 

By 283 


28 


TABLE    OP    CASES. 


Kearsley,  Ex  parte,  Genese,  In  re   ...  139, 170, 

173, 197 

Keay  v.  Boulton. .. 2034 

Keeley's  Trusts,  In  re 1905 

Keeling,  In  re,  Blanchett,  Ex  parte 105 

Keep's  Trade-mark,  In  re  1855 

Keeping  and  Oloag,  In  re  1766 

Kehoe,  In  good*  of 1997 

v.  Waterford  and  Limerick  By 400 

Keith  9.  Bnrke  221 

v.  Batcher  1407 

v.  Day 1273 

Kelday,  In  re,  Meston,  Ex  parte 107 

Keilard  «.  Booke  1192 

Keller,  In  re 23 

Kellock,  In  re 1752, 1754 

Kelts  Union,  In  re,  Smith,  Ex  parte  1125 

Kelly's  Settlement,  In  re,  West  *.  Turner      961 
Kelly  v.  Browne    766,1643 

v.  Kellond  617 

v.  Kelly    810 

v.  London   and   Staffordshire  Fire 

Insurance  Co 1005 

Kelson  v.  Ellis,  Ellis'  Trusts,  In  re  1486 

Kemmis  v.  Kemmis 2124 

Kemp,  In  re 972 

In  re,  Luck,  Ex  parte  101,162 

«.  Goldberg 1268, 1437 

v,  Haynes,  Haynes,  In  re 1633,2075 

Kenmare  (Lord)  t>.  Casey  675,1498 

Kennard  v.  Simmons 1070, 1536 

Kennedy,  Ex  parte,  Willis,  In  re 228 

v.Lyell 1826 

v.  Purcell 338 

Kensington  (Lord),  In  re,  Bacon  v.  Ford     1061 

Kensit  v.  Great  Eastern  By 681, 1971 

Kent's  case ~ 434,447 

Kenyon's  Estate,  In  re,  Mann  r.  Knapp ...  2089 

Kenyone.  Eastwood 549 

Kerford  v.  Seacombe,  Hoylake,  and  Dee- 
side  By 1116 

Keroula,The . 1661 

Kerr  v.  Chambers 710 

Kershaw,  In  re,  Drake  v.  Kershaw  2112 

v.  Kershaw   934 

v.  Sheffield  (Corporation) 868 

Keswick  Old  Brewery  Co.,  In  re  414 

Kettlewell  v.  Watson 629, 1950, 1959 

Kewney  v.  Attrill 774 

Keyset?.  Keyse 895 

Kibble  v.  Payne,  Payne's  Settlement,  In 

re 1921 

Kiddle  v.  Lovett 490,604 

v.  Kidston 1648 

Kiff  «.  Roberts,  Roberts,  In  re 28, 1398, 

2065 

Kilford  t>.  Blaney,  Meere,  In  re 2117 

Killmister  v.  Fitton 1180 

Kimber  v.  Paravicini   693 


Kimberley  North  Block  Diamond  Mining 

Co.,  In  re,  Wernher,  Ex  parte  391 

King's  Estate,  In  re  1869,2093 

King,  Ex  parte,  Ingham,  In  re 148 

Ex  parte,  Jones,  In  re 1750 

In  re,  Mesham,  Ex  parte 150 

v.  Chick,  Talbott,  In  re 808 

v.  King. 2020,2104,2110 

v.  Lucas    926 

v.  Oxford  Co-operative  Society   ......   560 

Kingdon,  In  re,  Wilkins  v.  Pryer   ...  1995, 2098 

r.  Kirk    ....  1799 

KingBbridge    Union   r.  East   Stonehouse 

Guardians  ~ 1583 

Kingstown  Commissioners,  Ex  parte 1539 

Commissioners,  Ex  pa  rtt,  Local 

Government  Board,  In  re  ...    530 

Kinnaird  v.  Trollope    1278 

Kino  v.  Picard,  Jordan,  In  re 932,933 

Kintore  (Countess)  r.  Kintore  (Earl) 1601 

Kirby  Hall,  The 1685,1724 

Kirk,  Ex  parte,  Dashwood,  In  re 138 

In  re,  Nicholson  c.  Kirk  2025 

9.  Coates 849 

Kirpatrick  v.  South  Australian  Insurance 

Co 1005,1360 

Kirwan's  Trusts,  In  re ....    2099,2100 

Kirwinv.  Hines. 666 

Klcebe,  In  re,  Kannreuther't?.  Geiselbrecht  794, 

1034 

Knatchbull's  Settled  Estate,  In  re    1635 

Knebworth  Settled  Estates,  In  re 1636 

K uight,  Ex  parte,  Firbank,  In  re ~ 88 

In  re,  Cooper,  Ex  parte   H3 

In  re,  Knight «.  Burgess 2067 

In  re,  Knight  r.  Gardner    34, 764, 800, 

812 

In  re,  Smith,  Ex  parte 152 

v.  Bowers -..«   849 

v.Clarke  702,1497,2138 

v.  Coales  *6 

v.  Cotesworth 1013 

v.  Gardner,  Knight,  In  re    84, 764, 800, 

812 

v.  Whitmore  I860 

Knight's  Trusts  or  Will,  In  re    523, 541, 1898, 

1913 

Knill  t>.  Prowse 62 

Knott,  In  re,  Bax  v.  Palmer  WW 

Knowles,  In  re,  Bsinford  v.  Knowles  2023 

*.  Booth 568,830,831 

v.  Roberts  ..« -..  l**3 

Knowles'  Settled  Estates,  In  re 1620, 1629 

Knox  v.  Mackinnon W74 

Koster,  Ex  parte,  Park,  Inre   60S 

v.Park 608 

Krantscke  v.  Robinson f 

Kronprins,  The M* 

Kuhn's  Trade-marks,/*  re 1864»18» 


TABLE    OF    CASES. 


29 


Kurta  v.  Spence    ...  750,  1135, 1353, 1354, 1355, 

1504 

Kylev.Barbor 866,1365 

Kyshe  v.  Alturas  Gold  Co 858 


L. 


La  Trinidad  v.  Browne    764 

Lacey,  In  r$%  Taylor,  Ex  parte 106 

v.  Waghorne 1246 

and  Sons,  In  re 1768,1766 

Laoon  v.  Tyrrell    1275 

Lacy  v.  Stone,  Pitt,  In  re    306, 2121 

Ladds  *.  Walthew 646 

Ladywell  Mining  Co.  v.  Brookes  or  Huggons    356 

Laertes,  Cargo  ex 1662,1706 

Laine,  In  re,  Berner,  Ex  parte  147 

Lake*.  Bell,  Bell,  In  re  1139 

v.  Haseltine 1441 

Lamb,  In  re,  Gibson,  Ex  parte 99, 168 

Lamb's  Trusts,  In  re 1908 

Lambert,/*™ 745 

In  re,  Stanton  v.  Lambert     913, 1677, 

2120 
Lambert's  Estate,  In  re  1264 

Trade-Mark,  In  re 1848 

Lambeth  Guardians  v.  Bradshaw. . .     1 166, 1387, 

2010 

Lambton  v.  Parkinson 625, 1447 

I«amond,  Ex  parte,  Dod,  Longstaffe  &  Co., 

Inre    567,1776 

Lamplugh  v.  Talding  Overseers 700, 1379 

Lancashire   Cotton  Spinning  Co.,  In  re, 

Carnelley,  Ex  parte  423 

and  Yorkshire  Ry.,  In  re  1124 

v.    Green- 

wood   292 

v.  Enowles  1970 

Telephone  Co.  v.  Manchester 

Overseers 1374 

Lancaster,  Ex  parte,  Marsden,  In  re  162 

The  1711 

v.  Allsnp 1334 

v.  Harlech  Highway  Board 1981 

JJ.    v.   Newton    Improvement 

Commissioners  1982 

J  J.  v.  Rochdale  (Mayor) 1982 

Land    Development   Association,    In   re, 

Kent's  case 434,447 

Land  Loan  Mortgage  and  General  Trust 

Co.  of  South  Africa,  In  re,  Boyle's  case    453 

Landau,  In  re,  Brown,  Ex  parte  204 

Landergan  v.  Feast  1426 

Landowners'  West  of  England  Drainage 

Cav.  Ashford    640 

Landrock,  In  re,  Fabian,  Ex  parte  131 

Lane,  In  re,  Hill,  Ex  parte    240 


Lane,  In  re,  Lane  v.  Robin 1034 

•.Collins 849 

v.  Lane,  Llewellyn,  In  re 802 

v.  Moeder 1100 

v.  Rhoades,  Rhoades,  In  re   2073 

v.  Robin,  Lane,  In  re 1034 

v.  Tyler  260, 1093 

Langen  v.Tate  767 

Langworthy  v.  Langworthy    887 

Lanyon  v.  Martin 475 

Lapington  v.  Lapington 892 

Laptborn  v.  Harvey 1981 

Lapthorne  v.  St.  Aubyn  265 

Larkin  v.  M'Inerney    1422, 1782 

Larking,  In  re,  Larking  v.  Larking  2091 

Lascelles,  In  re,  Genese,  Ex  parte,    27,  609 

Last  v.  London  Assurance  Corporation  1003, 1568 

Latimer  v.  Harrison,  Harrison,  Inre    785 

v.  Official  Co-operative  Society    ...    684 

Lauderdale  Peerage,  The  748, 882, 1026, 1599, 1600 

Lavery  v.  Purssell  472, 1794 

Lawv.Philby    1420 

Lawes  v.  Maughan    1533 

Lawley  v.  Merricks  834 

Lawrence  v.  Lawrence 43 

v.  Norreys  (Lord)  1436 

Laws  v.  Smith   1661, 1721 

Lawson  v.  Vacuum  Brake  Co 757 

Lawton  v.  Elwes,  Corsellis,  In  re  981,  1779 

Lay,  In  re,  Woodward,  Ex  parte  126 

Lazarus,  In  re,  Godfrey,  Ex  parte 173 

Le  Blond  v.  Curtis. 1472 

Le  May  v.  Welch  1868 

Le  Phenix,  In  re  1004 

Lea,  In  re,  Lea  v.  Cooke 306 

—  v.  Abergavenny  Improvement  Commis- 

sioners   1968 

—  v.  Cooke,  Lea,  In  re 306 

—  v.  Facey 7,  878 

—  v.  Parker 552 

—  Conservancy  Board  v.  Hertford  (Mayor)  1311, 

1807 
Leader  v.  Duffey   969 

v.Hayes    1101 

Leaf's  Trade  Mark,  In  re 628, 1839, 1842, 1849 

Leahy  v.  O'Grady,  Harnett,  In  re    764,  805 

v.  Tobin  1403 

Leamington  Priors  Gas  Co.  v.  Davis 839 

Learoydv.  Whiteley 1873 

Leathersellers'  Co.,  Ex  parte,  Tickle,  In  re  142, 

393, 1101 
Leaver,  Ex  parte,  Metropolitan  (Brush) 

Electric  Light  and  Power  Co.,  In  re 438 

Ledbrook  v.  Passman    1246 

Ledgard  0.  Bull 1345 

Ledger,  Ex  parte,  Postlethwaitc,  In  re    ...    169 

Leduc  v.Ward  1406, 1661 

Leev.Abdy 998,1037 

—  v.  Barnes 254 


3Q 


TABLE    OF    CASES. 


Lee  v.    Chapman,    Ex    parte,    Asphaltic 

Paving  Co.,  In  re 427,  491 

-  v.  Dunsford 1269 

-  v.  Neuchatel  Asphalte  Co 400 

-  v.  Soames    1983 

-  v.  Tomer. 236 

-  and  Hemingway,  In  re    522 

Leeds  v.  Leeds   888 

(Mayor)  v.  Bobshaw 869 

Estate  Building  Co.  v.  Shepherd... 361, 364 

Leek     Improvement     Commissioners    v. 

Staffordshire  JJ 1983 

Lees,  In  re 1164 

Leete  v.  Wallace   1001, 1522 

Leggott  v.  Western   772 

Leicester  Club  and  County  Baoe  Course  Co., 

In  re    438 

Urban    Sanitary    Authority    v. 

Holland  1065 

Leicestershire  Banking  Co.,  Ex  parte,  Dale, 

In  re   207 

Leigh  v.  Burnett   1248 

v.  Dickeson  1076,1235,1821 

v.Leigh  1876 

v.  Bumney,  Bevill,  In  re 806 

Leighton  v.  Price,  Price,  In  re  1627 

Leitch  v.  Abbott 658,1440 

Lemon  v.  Simmons  632,  941 

Lemons,  Inre 976 

Lenders  v.  Anderson 1417 

Lenham  v.  Barber 512 

Lennox,  Ex  parte,  Lennox,  In  re Ill,  612 

Leonard  v.  Wells 1837, 1843,  1847, 1850 

Leonard's  Trade  Mark,  In  re  ...1837,  1843,  1847, 

1850 

Leptir,  The 1673 

Lesingham's  Trusts,  In  re .....907,  2035 

Leslie,  Ex  parte,  Leslie,  Inre   1 16 

v.  Cave    650 

v.  Clifford  1446 

Letterstedt  v.  Broers 1912 

Lever  v.  Goodwin 1830 

Leverington,  The  1690 

In  goods  of 2002 

Levy's  Trusts,  In  re 192 

Levy  v.  Abercorris  Slate  Co. 368,  369 

v.  Merchants'  Marine  Insurance  Co.  1010, 

1017 

v.  Polack  241 

v.  Sewill,  Moss,  In  re  1023, 1282 

Lewin,  Inre  1397 

v.  Jones 1276 

v.  Killey 2048 

v.  Trimming   522,539 

v.  Wilson  1149 

Lewis,  Ex  parte  1176,1223,1481 

Ex  parte,  Clagett,  Inre  1022, 1060 

In  re,  Foxwell  v.  Lewis 495,  2109 

In  re,  Helder,  Ex  parte  101, 168 


Lewis,  In  re,  Lewis  v.  Williams 42 

v.  Aberdare  and  Plymouth  Co. 1271 

v.  DriscoU  234 

v.  Fermor  15 

v.Graham 1202 

V.Herbert 1411 

v.James 763,1225,1425 

v.Jones 18 

v.Lewis - 551 

v.  Pritchard,  Pngh,  In  re    543 

v.  Ramsdale 1391, 1517 

v.  Weston  Super  Mare  Local  Board    866 

v.  Williams,  Lewis,  In  re 42 

Lhoneux   v.  Hong   Kong   and  Shanghai 

Banking  Corporation   1410 

Licensed   Victuallers'   Newspaper   Co.  v. 

Bingham 1828 

Liebig's  Extract  of  Meat  Co.  r.  Anderson  1832 

Liffey,The  1706,1730 

Light  v.  Anticosti  Co.  758 

Lightbody's  Trusts,  In  re    1917 

Lightbound  v.  Bebington  Local  Board 867 

Lightbown  v.  McMyn,  McMyn,  In  re  784, 914, 1535 

Lilley  v.  Rankin 216,  482,  838 

Limehouse  Board  of  Works,  Ex  parte,  Val- 

lance,  In  re 748 

Limpus  v.  Arnold 2127 

Lindo,  In  re,  Askin  v.  Ferguson 2106 

Lindsell  v.  Phillips,  Powers,  In  re  ...  804, 1148, 

1152 

Lindsey,  Ex  parte,  Bates,  In  re 106,  112 

Line  v.  Warren 27,  511,  512 

Linen  and  Woollen  Drapers'  Institution,  In 

re 1564 

Linton.  Ex  parte,  Linton,  In  re...  143,  607,  902 

v.Linton. 143,607,902 

Linwood  v.  Andrews 211,462 

Lion  Mutual  Marine  Insurance  Association 

v.  Tucker 456, 1019, 1803 

Lipscombe,  Ex  parte,  Lipscombe,  Inre  ...    Ill 

Lisbon-Berlyn  Gold  Fields  v.  Heddle  1414 

Lishman  v.  Christie 1660 

Litchfield  v.  Jones 68,  611,  666, 1742 

Little,  Inre  933 

Littleton  (Post-mistress),  Ex  parte  „..    640 

Liverpool  Guardians  v.  Portsea  Overseers...  1382 
Liverpool  Household  Stores  Association  v. 

Smith  638 

Livesey,  In  re   156 

Livietta,  The 1655,  1710, 1791 

Llangennech  Coal  Co.,  In  re 293, 1137 

Llewellin,  In  re,  Llewellin  v.  Williams   ...  1638 

In  re,  Lane  v.  Lane  808 


Lloyd,  In  re,  Edwards  v.  Lloyd 1640 

In  goods  of    2006 

v.  Bottomley 1860 

v.Lloyd 833,2067 

Generate  Italiano, /»  rr 409 

Lloyd's  Banking  Co.  c  Jones  1236, 1261 


TABLE    OP    CASES. 


3i 


Lloyd's  Trade-mark,  In  re I860 

— -  Trustees,/*™ 1912 

Local  Government  Board,  In  re,  Kings- 
town Commissioners,  Ex  parte 630 

Lock  v.  Willis,  Bradbrook,  In  re  1818 

Locke  v.  Dunlop    2034 

v.  White   ....; 1466,1601 

Lockhart  v.  St.  Albans  (Mayor) 1071 

v.  Webster 476 

Lockwood  v.  Sikes 1616 

t».  Tunbridge  Wells  Local  Board  1369 

Loder's  Trusts,  In  re  939, 1285 

Lofthonse,  In  re   973,1882 

Lomax  v.  Ward 158 

Long,  Ex  parte,  Long,  In  n- 106 

v.  Lane 2050 

Longfield  v.  Bantry 2089 

Longnewton,  The 1692 

Longstaffe,  In  re,  Blenkarn  v.  Longstaffe. . .    762 
London  (Mayor),  Em  parte 1128, 1768 

Ex  parte,  Sion  College, 

In  re    1130 

«.  Brooke    927 

London  Alliance  Discount  Co.  v.  Kerr 931 

London,  Brighton,  and  South   Coast  Ry. 

v.  Truman 1811,  1546,1807 

London  Celluloid  Co.,  In  re   383 

Bayley  and 

Hanbury's  case 449, 1200 

London,  Chatham  and  Dover  By.  v.  South- 
Eastern  Ry. 1465, 1551 

London  Financial  Assocation  v.  Kelk   401 

-  Founders'  Association  v.  Clarke  ...    881 

Land  Company  v.  Harris 1445 

Road  Car  Company  v.  Kelly    1448 

School  Board  v.  Duggan  1593 

v.       St.   Leonard's, 

Shoreditch 1373 

Vm  Wood   1593 

v.Wright    1594 

Scottish  Permanent  Benefit  Society 

v.  Chorley 528,1778 

- —  Steam  Dyeing  Company  v.  Digby  536,1478 

Street,  Greenwich,  and  London, 

Chatham,  and  Dover  Ry.,  In  re  1131 

Tilbury,  and  8outhend  Ry.  v.  Kirk    664 

Wharfing  Co.,  In  re  640 

and  Blackwall  Ry.  v.  Cross   61, 

1121, 1436 

and  County  Banking  Co.  v.  Firmin, 

Firmin,  In  re  612 

and  County  Banking  Co.  v.  London 

and  River  Plate  Bank    1304 

and  County  Banking  Co.  v.  Terry, 

Sherry,  In  re 80, 1360, 1528 

■  and  County  Plate  Glass  Insurance 

Co.,  In  re 379 

— -  and  Lancashire  Fire  Insurance  Co. 

v.  British  American  Association...      66 


London  and  Lancashire  Paper  Mills  Co., 

In  re 439,440, 1239, 1949 

and  Provincial  Electric  Lighting 

Co.,  In  re,  Hale,  Ex  parte    349 

and  Provincial  Fire  Insurance  Co., 

In  re 378 

and  Provincial  Provident  Associa- 

tion, In  re,  Mogridge's  case 452 

and  Southern  Counties  Freehold 

Land  Co.,  In  re  367 

and  Staffordshire  Fire  Insurance 

Co.,  In  re,  Wallace's  case 350 

and  Westminster  Supply  Associa- 

tion v.  Griffiths  386 

and  Yorkshire  Bank  v.  Belton 1109 

v.  Cooper. 651 

v.  Pritt 487 

Lord  v.  Hayward,  Smith,  In  re 2025 

Lord  Advocate  v.  Young 1605 

Loring  v.  Davis 1524 

Loughborough  Highway  Board  v.  Cunon     26, 

1984 

Lound  v.  Grimwade 484 

Lovat  Peerage,  The 745,1599 

Love,  In  re,  Hill  v.  Spurgeon    813, 1896 

v.Bell    1227 

v.  Hills,  Miller,  In  re,  French,  In  re  1896, 

1752 

Lovell  v.  Wallis 625,  762 

Lovely  v.  White 72 

Lovering,  Ex  parte,  Ayshf  ord,  In  re 166 

Ex  parte,  Murrell,  In  re  124 

Lowcock  v.  Broughton  Overseers  712 

Lower.  Dixon  1824, 1531 

v.  Fox 619,  940,  1169,  1825 

Lowenthal,  In  re,  Beesty,  Ex  parte 84 

Lowestoft  (Manor  of),  In  re,  Reeve,  Ex 

parte 596, 1126 

Lowndes,  In  re,  Trustee.  Ex  parte    159, 194,983 

Lowry  0.  Lowry  2064 

Lowther  v.  Curwen   1719 

v.  Heaver    1603 

Lucas,  In  re,  Parish  v.  Hudson  44 

v.  Harris  69,771,  1363, 1465- 

v.  Martin 173 

Luck,  Ex  parte,  Kemp,  In  re 101,162 

Luddy,  In  re,  Peard  v.  Morton 2044 

Luddy's  Trustee  v.  Peard 1740 

Ludford,  In  re 168,  1644 

Ludmore,  In  re    158, 1644 

Lulham,  In  re,  Brinton  v.  Lulham  827, 952, 1867 

Lumb  v.  Beaumont 1449,1498,1504 

Lumley  v.  Nicholson  1521 

v.  Simmons 239, 244, 245,  246, 252 

Lund  v.  Campbell  54,  530 

Lush,  In  goods  of 2007 

Luttonv.  Doherty 862 

Lybbe  *.  Hart 121,1090,1808 

Lydia,  The    1729 


1 


32 


TABLE    OF    CASES. 


Lydney  and  Wigpool  Iron  Ore  Company  v. 

Bird 22,366,  537, 1443,  1744 

Lyell  v.  Kennedy  648, 650, 663, 664, 665, 748, 1149 
Lynch  v.  Commissioners  of  Sewers 741, 1113 

v.  Lynch 607,  894 

v.  Macdonald   1471 

v.  Wheatley   717 

Lyndon's  Trade-mark,  In  re  1845 

Lyon  v.  Morris 252/1044 

Lyons,  The 1652 

Lytton  (Barl)  v.  Devey   1135 


M. 


M.  (falsely  called  D.)  v.  D 885,  887 

Maberly,  In  re,  Maberly  v.  Maberly 1876 

Maberly's  Settled  Estate,  In  re 1629 

McAllister  v.  McAllister 803 

McAlpine,  Ex  parte,  McAlpine,  litre 176 

Mac  Arthurs  Hood  1406 

McAuliffe  and  Balfour,  In  re 1884 

McBean  v.  Deane 691 

McCane,  In  goods  oi 2007 

McCartan  v.  North-Eastern  By 284 

M'Carthy  v.  Cork  Steam  Packet  Co 36 

McCaull  v.Strauss  468,1512 

M'Ciean  v.  Prichard 507,706 

McClellan,  In  re,  McClellan  v.  McClellan    523. 

642,609 

v.  Clark,  Sayer,  In  re 2086 

McConnell,  In  re,  Saunders  v.  McConnell      39 

M4Cormick  v.  Heyden 1168,2013 

McDermott,  Ex  parte,  McHenry,  In  re  ...     177 

M'Devitt  v.  Connolly 1813 

McDonald  v.  Cloghessy,  Cloghessy,  In  re    809 
Macdonald  v.  Lochrane  614 

v.  Tacquah  Gold  Mines  Co. ...      70 

v.  Whitfield     220,  326 

Macdonnell  v.  Marsden  1189 

Macdougal  v.  Knight  634 

MacDowall's   Case  442,1188 

Macey  v.  Gilbert  252 

M'Evoy  v.  Waterford  Steamship  Co.  554, 1196, 

1290 

McEwan  v.  Crombie 807,812 

Macfarlane,  In  goods  of  1995 

v.  Lister    1788, 1791 

M'Garry  v.  White 769,  931, 1455 

McGibbon  v.  Abbott 328,  2016 

McGlone  v.  Smith 1971 

McGough  v.  Lancaster  Burial  Board  697 

McGowan,  In  goods  of 2012 

McGreevy  v.  Russell  823,  478 

McGregor  v.  McGregor 473,  916 

McHardy  v.  Liptrott  559 

Macharg  v.  Stoke-upon-Trent  Assessment 

Committee 1372 

Machellv.  Newman,  Thompson,  In  re 2031 


McHenry,  Ex  parte,  McHenry,  In  re. Ill 

In  re    85,150,205 

Credit  Co.,  Ex  parte ...     91 

McDermott,  Ex  parte...   177 

McHenry,  Ex  parte 118 

M'llwraith  v.  Green 1429,1446 

Mackay,  Ex  parte,  Page,  In  re 138 

Shirley,  In  re   104,444 

v.  Banister 660 

v.  Merritt    166, 


Mackellar  v.  Bond    331 

M'Kendrick  t?.  Buchanan 709 

Mackenzie  and  Ascot  Gas  Co.,  In  re 52, 874 

Mackie  r.  Herbertson  953 

Mackintosh,  Ex  parte,  Mackintosh,  In  re   194 

Mackreth  r.  Walmsley    1636 

Maclaren    v.   Compagnie     Francaise   de 

Navigation  a  Vapeur   1689 

McLean '8  Case  446 

McLean  v.  Clydesdale  Banking  Co 30, 218 

Maclean  v.  Currie 1U0 

M'Lean  v.  Simpson  2048 

McLean  v.  Smith,  Pearce,  In  re 810 

Macleod  v.  Jones  1022, 1260, 1281,1738 

MacMahon,  Ex  parte 1176 

Mctfahon,  In  re,  McMahon  v.  McMabon...  843, 

1242 

McManusc.  Cooke  474,676,1794 

McMurdo,  Ex  parte,  Sedgwick,  In  re ......    108 

M'Myn,  In  re,  Lightbown  «.  M'Myn  ...  784,914, 

1636 

Macnamara's  Estate  1244, 1361 

M'Namara  v.  Malone   —  1777 

Macnicoll  v.  Parnell  ....    770 

Macpherson's  Estate,  In  re,  Macpherson  «. 

Macpherson    945 

v.  Scottish  Rights  of  Way 

and  Recreation  Society  673 

McTear,  Ex  parte,  McTear,  In  re 1 70 

McRae,  In  re,  Forster  v.  Da  vies  ...  33,  803, 1329 

Norden  v.  McRae  ...  803,  809, 1329 

Macreight,  In  re,  Paxton  v.  Macreight  69,  10(28 
Maddever,  In  re,  Three  Towns  Banking  Co. 

r.  Maddever  827,1073 

Maddock  v.  Wallasey  Local  Board  840 

Madgwick,  In  re 1133 

Magarill  v.  Whitehaven  Overseers 710 

Magee,  Ex  parte,  Magee,  In  re 198 

Magnus  r.  National  Bank  of  Scotland  730, 1448 

«.  Queensland  National  Bank  77,  1284 

Magrath  v.  Reichel «>1,727 

Mahler,  In  re,  Honygar,  Ex  parte 39 

Maidstone  and  Ashford  Ry.,  In  re 1129 

Maidstone  Union  v.  Holborn  Union 1383 

Main,  The  - 1*8 

Malcomson  v.  Malcomson   973, 1880 

Maiden,  In  re,  James,  Ex  parte 94, 96, 145 

Malen,  In  goods  of  3002 

Maley,  In  goods  of   *** 


TABLE    OF    CASES. 


33 


Mallam  v.  Bean  612 

Mallet  v.  Hanley 1318 

Malone  v.  Fitzgerald 688,  661 

Mammatt  v.  Brett  409 

Mammoth,  The 533,  535, 1728 

Manchester  (Mayor)  v.  Hampson 870 

Overseers  *.  Headlam 1379 

—      v.    Ormskirk     Guar- 

dians      1885 

Economic    Building    Society, 

In  re  32,1395 

Sheffield,  and  Lincolnshire  By. 

v.  Brown  295 

Sheffield,  and  Lincolnshire  By. 

v.  North  Central  Waggon  Co.  232, 

293 

and  Oldham  Bank,  In  re 454 

u  Cook   ...   490, 

601,  736 

Mander  v.  Harris,  March,  In  re 916 

Manisty  v.  Churchill,  Churchill  (Lord),  In 

re 597, 1534 

Mann*.  Brodie 673, 1606 

v.  Knapp,  Kenyon's  Estate,  In  re...  2089 

Manners  v.  Mew    1250 

Manning,  In  re 609 

v.Adams 1189 

v.  Moriarty  1423 

Mansel,  In  re,  Newitt,  Ex  parte  92 

In  re,  Rhodes  t\  Jenkins 1896 

In  re,  Sayer,  Ex  parte 92 

v.  Clanricarde 764 

Mansell,  Ex  parte,  Chillington  Iron  Co., 

In  re    407 

Manton  v.  Tabois    2071,2089 

Maple  t>.  Shrewsbury  (Earl)  1427 

March,  Ex  parte,  Richards,  In  re 204 

In  re,  Mander  v.  Harris 916 

Marcus,  In  re,  Marcus  v.  Marcus  ...  1578,  2003, 

2036,  2070 

Marcy  v.  Morris 342 

Margary  v.  Robinson 2001,2005 

Margetts,  In  re,  Board  of  Trade,  Ex  parte      93 
Marine  Insurance  Co.  v.  China  Transpacific 

Steamship  Co 1016 

Marion,  The   1648 

Marlborough's  (Duke)  Settlement,  In  re, 

Marlborough   (Duke)  v. 

Majoribanks  1634 

(Duke)  v.  Sartoris 1630 

Marony  v.  Taylor,  Wickham,  In  re  1484 

Marrett,  In  re,  Chalmers  v.  Wingfield 1027 

Marriott  v.  Chamberlain  638,  662 

Marsden,  In  re,  Bowden  v.  Lay  land...  789, 1140, 

1955 

In  re,  Gibbs  v.  Layland  ...  1140, 1955 

In  re,  Lancaster,  Ex  parte  162 

Marseilles  Extension  By.  and  Land  Co., 

Smallpage  and  Brandon,  In  re... 220, 421, 1087 


Marsh,  Ex  parte,  Marsh,  In  re 199, 1762 

In  re,  Mason  v.  Thome  2095 

and  Granville  (Earl),  In  re 1937 

Marshal  v.  Maclure 468, 1826 

Marshall  v.  Edelston,  Owtram,  In  re   ......    185 

v.  Jones 1499 

«.  Marshall    1416 

Marshfield,  In  re,  Marshfield  v.  Hutchings    749, 

1151,  1260 
Mainland,  In  re 919, 1028, 1059 

v.  Hole 80 

Marten  v.  Bocke  79,1590,1921 

Martin's  Estate,  In  re 1454 

Trusts,  In  re 1917 

Martin,  Ex  parte,  Strick,  In  re 114 

In  re,  Board  of  Trade,  Ex  parte...      91 

In  re,  Smith  v.  Martin  2047 

In  re,  Tuke  v.  Gilbert 2040 

Ingoodsof  1783 

v.  Beauchamp  (Earl) 1433 

v.  Connah's  Quay  Alkali  Co. 1197 

v.  Dale  957 

v.  Freeman,  Taylor,  In  re  ...  309,  2082, 

2113 

v.  Fyfe  56 

v.  Hanrahan 708 

v.  Lacon,  Christmas,  In  re    302 

v.  Martin 2058 

r.  Russell 1440 

v.  Spicer  657,1075 

r.  Treacher    666 

v.  Tritton   1042,1643 

v.  Wyatt   698 

Martineau,  In  re  1578 

Martinson  v.  Clowes 41, 1269, 1743 

Martyn,  In  re,  Toutt's  Will,  In  re 1908 

Mary  Lohden,  The 1691 

Marzetti  f>.  Smith 763,1670 

Mason  v.  Ashton  Gas  Co 840 

v.  Bishop 2002 

^.Rhodes   1246 

v.  Thome,  Marsh,  In  re 2096 

v.  Westoby 1265,1454 

Masonic  and  General  Life  Assurance  Co., 

In  re 414,799 

Massey  and  Carey,  In  re 1776 

v.  Heynes 1418 

Massy  v.  Rogers. 2079 

Masters  v.  Green  1109 

Matheson,  In  re 410 

Mathews  v.  Carpenter 1064 

v.  London  Street  Tramways  Co.  1287 

v.  Ovey  669 

Matthew,  Ex  parte,  Matthew,  In  re  108,  222, 

1358 

Matthews  v.  Munster  211 

Maugham,  Ex  parte,  Maugham,  In  re...  86, 103 
Maughan,  In  re,  Monkhouse,  Ex  parte  ...  119 
Maullin*.  Rogers 1482 


34 


TABLE    OF    CASES. 


May,  Ex  parte,  Brightmore,  In  re 1 10 

Ex  parte,  May,  In  re    117,  209 

In  re,  Bouse,  Ex  parte  725,731, 1286, 1395 

In  re,  May,  Ex  parte  117,  209 

v.  Harcourt  52 

v.  Newton   , 804,  806 

Mayer  v.  Mindlevich 256 

Meager,  Ex  parte,  Pellew,  In  re 607,  944 

v.  Pellew 606,  944 

Meakinr.  Morris  44,  966 

Medical   Attendance   Association,  In   re, 

Onslow's  case 444 

Medlock,  In  re,  Ruffle  v.  Medlock 2123 

Medway  Union  v.  Bedminster  Union    1384 

Meehan  v.  Meehan    1508 

Meek  v.  Wendt  1519 

Meeie,  In  re,  Kilford  v.  Blaney 2117 

MegBon  v.  Mapleson 1096 

Mein,  Ex  parte,  Ridgway,  In  re    146 

Melaugh  v.  Chambers  716 

Meldrum  v.  Scorer 1399 

MeUifl  v.  Shirley  Local  Board  482,  516,  874,  875 
Mellor*.  Daintree 2019 

v.  Porter 983, 1267 

«.  Swire,  Swire,  In  re 1481 

^.Thompson    38,1473 

Melly,  In  re  1160 

Melville  v.  Stringer 239,  245 

Memnon,  The 1688 

Mercantile  Mutual  Marine  Insurance  Asso- 
ciation, In  re,  Jenkins'  case 141,  394 

Mercer,  Ex  parte,  Wise,  In  re  825 

Merchant  Banking  Co.  v.  London  and  Han- 

seatic  Bank 1267 

Prince,  The  1684 

Taylors'  Co.  In  re 1765, 1770 

Merchants  of  Staple  of  England  v.  Bank  of 

England  75,  389,  741 

Meredith,  The    1649 

In  re,  Meredith  v.  Facey  180 

Men  vale  t>.  Carson    634 

Merriman,  Ex  parte,  Stenson,  In  re 151 

Mersey  Docks  v.  Henderson    ...  1717, 1805, 1810 

Docks  v.  Llaneilian  Overseers  1371 

Docks  v.  Lucas 1667 

Bail  way,  In  re 1548 

Steamship  Co.  v.  Shuttleworth 1477 

Steel  and  Iron  Co.  v.  Naylor    426,  477, 

1583 

Mortens  v.  Walley,  Serjeant,  In  re    2035 

Merthyr  Union  v.  Stepney  Union 1384 

Mesham,  Ex  parte,  King,  In  re 150 

Meston,  Ex  parte,  Eelday,  In  re  107 

Metcalfe,  In  re,  Metcalfe  v.  Blencowe 1764 

Metropolitan  Bank  v.  Pooley    188,  300,  408,  516, 

1170,  1464,  1465 
— —        Board  of  Works  v.  Anthony...  1211 

v.  Eaton 1218 

f.  Heaton  ...  1218 


Metropolitan  Board  of  Works  v.  Lathey  ...  1213 

v.  Nathan  ...  1213 

(Brush)  Electric  light  and 

Power  Co.,  In  re, 
Leaver,  Ex  parte 

Electric  Light  and 

Power  Co.,  In  re, 
Offor,  Ex  parte ... 


438 


761 


Railway  t>.  Wright 1475 

Meylerv.  Meyler  623 

Michael,  In  re,  Dessau  v.  Lewin 762 

Michel  v.  Mutch    1489 

Micklethwait  v.  Newlay  Bridge  Co.  621, 1971, 

1986 
Middlesborough  Building  Society,  In  re  274, 280 

In     re, 

Wythes, 
Exparte  274 

Firebrick  Co.,  In  re  418 

Overseers     v.    Yorkshire 

(N.  R.)  JJ.   545,1980 

Middlesex  JJ.  v.  Reg.  1537 

Midland  Railway  v.  Freeman 17 

„.  Miles   1547 

f».  Robinson. -...  1546 

Vm  Watton 862,  853, 868 

Midleton  (Lord)  v.  Power   696, 1181, 1182, 

1183 

Milan  Tramways  Co.,  In  re,  Theys,  J8r 

parte 63,426,1500 

Mildred  v.  Maspons 1511 

Miles,  Exparte,  Isaacs,  In  re 206, 1586 

v.  Jarvis 1321, 1488 

r.  New  Zealand  Alford  Estate  Co.  385, 

456,  474, 479 

v.  Scotting  1232 

v.  Tudway  2038 

Milford    Haven    Ry.  and    Estate   Co.  «. 

Mowatt   1245 

Millar  v.  Harper 657,1440 

v.  Toulmin 22,1475 

Miller,  In  re,  Love  v.  Hills 1396, 1752 

v.Douglas 782 

v.  Gulson  2W 

Miller's  case  394,442 

Dale  and  Ashwood  Dale  Lime  Co., 

In  re    407 

Millichamp,  Goodale  and  Bullock,  In  re...  2126 
Millikin  v.  Snelling,  Colyer,  In  re...  1893, 2072, 

2127 

Mills,  In  re,  Mills  v.  Mills  2096 

In  re,  Official  Receiver,  Exparte  ...    163 

v.  Armstrong 1287, 1647 

«.Fox  969 

v.  Mills,  Mills,  In  re 2096 

Mills'  Estate,  In  re  522,1129 

Trusts,  Inre  498,1903 

Millward  v.  Midland  Ry. H* 

v.  Millward  •* 


TABLE    OF    CASES. 


35 


Milne,  In  re,  Giant  v.  Heysham    2050 

Milner,  Ex  parte,  Milner,  In  re 1 79 

v.  Great  Northern  Ry 1199 

Millies  v.  Hudderafield  (Mayor) 1963 

v.  Sherwin 11,786 

Mineral  Water  Bottle  Exchange  Society  v. 

Booth 487,1860 

Minifie  r.  Banger  715 

Mining  Co.  of  Ireland  v.  Delany    G6,  988 

Minnett,  Ex  parte    1053 

MinshuU  v.  Brinsmead    478 

Missouri  Steamship  Co.,  Monroe's  claim, 

lure 1037,1666 

Mitchell,  in  re,  Cunningham,  Ex  parte  ...     96, 

1026 

In  re,  Mitchell  *.  Mitchell 1526 

and  Governor  of  Ceylon,  In  re...      49 

v.  Cantrill 677 

v.  Darley  Main  Colliery  Co 653 

v.  Mitchell,  Mitchell,  In  re  1526 

Mitchell's  Trade-mark,  In  re 1855 

Mitchelstown  Inquisition,  In  re    505 

Mitchison  v.  Thompson    1104 

Mocatta,  In  re,  Mocatta  v.  Mocatta 2067 

Mogg*.  Clark   694,1208 

Mogridge's  case 452 

Mogul  Steamship  Co.  v.  Macgregor  ...  459,  986, 

1834 

Moir,  In  re,  Warner  v.  Moir  2076 

Molony  v.  Molony 1449 

Molyneux  and  White,  In  re    779 

Monarch,  The 1703,  1710, 1711 

Moncktonto  Gilzean 1942 

■ 

Monet,  Ex  parte,  Dudley,  In  re    611, 1742 

Monetary  Advance  Co.  v.  Cater 217, 255 

Monk.  In  re,  Wayman  v.  Monk 693 

Monkhouse,  Ex  parte,  Maughan,  In  re   ...    119 
Monroe's  claim,  Missouri  Steamship  Co., 

In  re    1037,1666 

Montagu's  case 392 

Montagu,  In  re,  Montagu  v.  Festing 980 

v.  Land  Corporation  of  England  1509 

Montague  v.  Sandwich  (Earl)   2090,2113 

Montrose  (Dowager  Duchess)  v.  Stuart   ...  1606 

Moody  and  Yates,  In  re 1937, 1939 

Moon,  Ex  parte,  Moon,  In  re 170 

In  re    208 

In  re,  Dawes,  Ex  parte 26, 180, 192, 

£02 

In  re.  Moon,  Ex  parte 170 

Moorcock,  The  1301, 1719, 1988 

Moore,  Ex  parte,  Faithfull,  In  re 108 

Ex  parte,  Dickinson,  In  re   155 

In  re  87 

In  re,  Moore  v.  Johnson 795, 1614 

In  re,  Moore  v.  Roche 2093 

In  re,  Trafford  v.  Maconochie  2078 

Ingoodsof    798,2015 

— -   v.  Bemrose,  Walters,  In  re 525 


Moore  v.  Deakin  1468 

v.  Explosives  Co 347 

v.  Ffolliot 2099,2103 

v.  Johnson,  Moore,  In  re    796, 1614 

v.  Lambeth  Waterworks  Co 1962 

v.  Moore 910 

v.  Palmer  1189 

v.  Roche,  Moore,  In  re  2093 

v.Simkin 724 

v.Walton 1788 

Moore's  Estate,  In  re  2077,2114 

Moorhouse  v,  Linney    509 

Mordey  and  Co.,  In  re 380 

Mordy  and  Cowman,  In  re 1946 

Morgan,  7n  re 1625 

In  re,  Owen  v.  Morgan  ...  40,  659, 1505 

t>.  Brisco  1801 

v.  Davey 1224 

v.  Eyre  606,944 

v.  Hardy 1080 

v.  London  General  Omnibus  Co....   615, 

1190 
Morgan's  case 438 

Estate,  In  re 2041 

Patent,  In  re    1351 

Morite  v.  Stephan 773,  1416 

Moroney,  In  re 826 

Morrin  v.  Morrin 2060,2094 

Morris,  In  re,  Bucknill  v.  Morris  1 877 

In  re%  Cooper,  Ex  parte. 140, 1186 

In  re,  Salter  v.  Att.-Gen 2044 

v.  Griffiths,  Raw,  In  re  493 

r.  Howell 1449 

v.  London  and  Westminster  Bank. . .      79 

v.Lowe 559 

Morrison,  Ex  parte,  Gillespie,  In  re  ...  151,  204 

v.  Great  Eastern  Ry 1123 

Morritt,  Li  re,  Official  Receiver,  Ex  parte 

246,  248 
Mortgage  Insurance  Corporation  v.  Inland 

Revenue  Commissioners   215, 1558, 1559 

Mortimer,  In  re,  Griffiths  v.  Mortimer 2027 

v.  Wilson 1488 

Morton,  In  goods  of 2005 

Moseley  v.  Victoria  Rubber  Co.  ...  537,  649,  663, 

1341, 1346 

Moser,  In  re,  Painter,  Ex  parte 120 

Moss,  Ex  parte,  Toward,  In  re  16$ 

In  re,  Levy  v.  Sewill  1023, 1282 

v.  Bradburn 1469 

f».  Malings  1347 

Moss's  Trusts,  In  re   1909,1915 

Mouflet  v.  Washburn    550 

Mounsey  r.  Rankin  472 

Mount  Morgan  (West)  Gold  Mine,  In  re, 

West,  Ex  parte 349 

Mouson  v.  Boehm 1854 

Mowatt  v.  Castle  Steel  and  Ironworks  Co. 

372,  733 
4  B 


36 


TABLE    OF    CASES. 


Mozon  v.  London  Tramways  Co 550 

Movers  v.  Soady   v  47,262 

Mnckalt  v.  Davis,  Davis,  Inre  783 

Muffett,  In  re,  Jones  v.  Mason...  795,  2035,  2079 
Mulcahy  v.  Eilmacthomas  Guardians  ...  17,  879 

Malckern  v.  Doerks  1419 

Mulleneisen  v.  Coulson 553, 1397 

Mnlton,  Ex  parte,  Malton,  In  re  182 

Manby  c  Ross,  Coalman,  In  re 2101 

Munch's  Application,  In  re 1847 

Monday,  In  re,  Allam,  Ex  parte 246,  257 

Mundy,  In  re,  Shead,  Ex  parte 207 

Municipal  Building  Society  v.  Kent...  275, 1804 

v.  Richards  ...    277 

v.Smith  1079,1263 

Freehold  Land  Co.  v.  Metropo- 

litan and  District  Rys 1118 

Trust  Co.,  In  re  379,  380 

Manns*.  Burn,  Crosby  or  Crosley,  In  re...     33, 

187, 1143 

and  Longden,  In  re 42, 1483, 1757 

Monro  v.  Watson  513 

Munsterv.  Cox 1330 

v.Lamb  633 

Bank,  In  re,  Dillon's  Claim    455 

Munton  v.  Truro  (Lord) 627 

Murfett  v.  Smith 1474,  1991,  2016 

Murphy  v.  Cheevers 2088 

v.  Coffin 1677 

v.  Davey 1234 

v.  Nolan 1423 

v.Wilson 1194 

Murray,  In  re,  Dickson  v.  Murray 823, 1920 

v.  Flavell,  Flavell,  In  re 1334, 

1872 

and  Hegarty,  In  re  1939 

v.  Glasgow  and  South  -  Western 

Ry.   297 

v.Scott 268,279 

v.  Stephenson 1409 

Murrell,  In  re,  Lovering,  Ex  parte  124 

v.  Fysh    490,605,1106 

Musgrave  v.  Brooke,  Brooke,  In  re  2074 

v.Stephens 259 

Mutrie  v.  Binney  1432 

Mutter  v.  Eastern  and  Midlands  Ry. 355 

Mutton,  In  re,  Board  of  Trade,  Ex  parte. . .    185, 

205 

In  re,  Mutton,  Ex  parte 182 

Mutual  Aid  Permanent  Benefit  Building 

Society,  In  re,  Anson,  Ex  parte    267 

Life  Assurance  Society  r.  Langley     65, 

1256, 1267, 1271,  1430, 1495, 1921 

and  Permanent  Benefit  Building 

Society,  In  re,  James,  Ex  parte  1526 

Myers  v.  Elliott 244 

Myles  v.  Burton 931 

Mysore  Reefs  Gold  Mining  Co.,  In  re  420 

Mytton  v.  Mytton 890 


N. 


Nacupai  Gold  Mining  Co.,  In  re   416 

Nadin  v.  Bassett    758 

Nallyt>.  Reg.  300 

Nanney  v.  Morgan    386 

Naples,  The 1697 

Nares,  In  goods  of 2008 

Nash  v.  Wooderson  1928 

Nasmyth,The    1707,1722 

Nassan,  Ex  parte,  Home,  In  re 126 

Nathan,  Inre    1174,1578 

Newman  &  Co.,  In  re  441 

Nation,  In  re,  Nation  v.  Hamilton    41,532 

National  Arms  and  Ammunition  Co.,  In 

re 425 

Bank  v.  Canning  1448 

Bank  v.  Gourley   97« 

Building  and  Land  Investment 

Co.,  In  re,  Clitheroe,  Ex  parte    431 

Coffee  Palace  Co.,  In  re,  Panmure, 

Ex  parte  382,1518 

Provincial  Bank  of  England  r. 

Games    1277 

Provincial  Bank  of  England  v. 

Jackson 618, 1245, 1250, 125S 

Natt,  In  re,  Walker  r.  Gammage  795 

Navan  and  Eingscourt  By.,  In  re,  Dyas, 

Ex  part*  1634. 
1635 

In  re,  Price, 

Expartr...  1550 

Naylor  and  Spendl&'s  Contract,  Inre  496 

Neal,  In  re,  Weston  v.  Neal   1434 

Neath    Harbour    Smelting    and    Rolling 

Works,  Inre    ^ 362 

and  Bristol  Steamship  Co.,  In  re...  415, 

667 

Neaves  v.  Spooner 538 

Neck,  In  re,  Broad,  Ex  parte 127 

Needham,  Inre 1919 

In  re,  Robinson  v.  Needham   ...  2116 

v.  Bowers 1565 

Negus  v.Jones  923 

Neilsen  v.  Neame 1674 

Neilson  v.  Mossend  Iron  Co 1333 

Nelson,  Ex  parte,  Hockaday ,  In  re 257 

Inre 1761 

v.  Pastorino 1831, 1411, 1419 

v.  Robins,  Robins,  In  re   ~~  1578 

Nesbitt's  Trusts,  In  re 191* 

Nettlefold's  Trusts,  In  re 1881 

Never  Despair,  The  1444, 17*8 

Nevill,  Jura  —  U** 

New  Chile  Gold  Mining  Co.,  In  re   384 

City  Constitutional  Club  Co.,  In  re, 

Purssell,  Ex  parte  424 

University  Club,  In  re  1«*3 


TABLE    OF    CASES. 


37 


New  Windsor  (Mayor)  v.  Stovell 876 

York  Exchange,  In  re    412 

Newbattle,  The 1442, 1695 

Newbegin,  In  re,  Eggleton  v.  Newbegin  ...  1165, 

1387 
Newbouldv.  Bailward 1773 

-  c.Smith  746,1148 

v.  Steade 1445 

Newfoundland  Government  v.  Newfound- 
land By 65,336 

Newhaven  Local  Board  v.  Newhayen  School 

Board  848,855 

Newitt,  Ex  parte,  Mansel,  In  re   92 

Newlands  v.  National  Employers'  Accident 

Association 408, 1516 

Newlove  v.  Shrewsbury   231 

Newman  v.  Jones 1054 

-  v.  Newman 999, 1247, 1255, 1885 

v.  Pinto  1857 

Newport  Slipway  Dry  Dock  Co.  v.  Paynter  1439 

Newson  v.  Pender 680,986 

Newton's  Patents,  In  re  1351 

Newton  v.  Chapman,  Chappie,  In  re    1780 

v.  Monkcom 852 

v.  Newton    901 

v.  West  Biding  JJ 1057 

Newtownards  Gas  Co.,  In  re,  Stephenson, 

Ha  parte 430 

Nicholl «.  Wheeler    662 

Nicholls  v.  Morgan   931 

v.  North  Eastern  By 288 

and  Nixey's  Contract,  In  re   135, 

1614 

Nichols  to  Nixey 135, 1614 

Nicholson,  Ex  parte,  Nicholson,  In  re 196 

Ex  parte,  Stone,  In  re 85, 608 

In  re    1169,1902 

In  re,  Nicholson,  Ex  parte 196 

In  re,  Quinn,  Ex  parte 1784 

v.  Booth 583, 1064 

v.  Holborn  Union 1372 

v.  Kirk,  Kirk,  In  re 2025 

v.  Wood  1441 

Nickoll,  Ex  parte,  Walker,  In  re 98,206 

Nicorscase 391 

Nicol  v.  Beaumont    674, 1977 

v.  Nicol 910 

Nicoll  v.  Beere  . 486 

Nicols v.  Pitman 602,991 

Nielsen  v.  Wait 1676 

Niobe,  The 1713, 1714 

Nisbet  v.  M*Innes 1565 

Nixon  e.  Cameron,  Cameron,  In  re  ...  777, 2114 

v.  Sheldon,  Sheldon,  In  re  34, 1817 

v.  Tynemouth  Bural  Sanitary  Au- 

thority    1313 

v.  Verry  192 

Noble  c.Ahier   687 

Noel  v.Noel    907,909 


Nolloth  «?.  Simplified  Permanent  Building 

Society 273 

Norden  r.  McBae,  McBae,  In  re 803,  809, 

1329 

"  Normal "  Trade-mark,  In  re    1849 

Norman,  In  re,  Bradwell,  Ex  parte 1760 

v.  Bolt 102,1531 

Normanton  Gas  Co.  v.  Pope    841 

Norris,  Ex  parte,  Sadler,  In  re :     150 

In  re,  Allen  «.  Norris    1740,  1914, 

1918 
In  re,  Reynolds,  Ex  parte  96 

v.  Catmur   1296 

North  Brazilian  Sugar  Factories,  In  re   ...   416, 

440 

r-  British  By.  v.  Perth,  Provost  of     ...  1544 

Eastern  By.  v.  Cairns  296 

Eastern  By.  tj.  Sutton  Overseers    ...    514 

London  Freehold  Land  and  House 

Co.  v.  Jacques    1104 

-  Molton  Mining  Co.,  In  re  421 

North- West  Transportation  Co.  v.  Beatty    359 
North  and  South  Western  Junction  By.  v. 

Brentford  Union     1373,1381 

Northam  Bridge  Co.  v.  Beg 1390,  1805 

Northcote  e.  Heinrich  Bjorn  (Owners)    ...  1652 

Northen's  Estate,  In  re,  Salt  r.  Pym    20 1 8 

Northern  Counties  of  England  Fire  Insu- 
rance Co.  v.  Whipp    1249,  1252 

Northumberland  (Duke)  v.  Bowman    987 

Avenue  Hotel  Co.,  In  re 

Fox's  claim    478 

In  re,  Sully's 

case  403, 1798 
Norton  v.  Compton,  Compton,  In  re   30,  38, 

785 

v.  Fenwick  534 

V.Johnstone    2122 

Norwich  Equitable  Fire  Insurance  Co.,  In 

re,  439,  1008.  1009 

In  re,  Brasnett's 

case 42,  427 

In   re,    Miller's 

case 394,442 

Norwich  Town  Close  Estate,  In  re    311 

Nottebohn  v.  Bichter    1664 

Notting  Hill,  The 602,1700 

Nottingham,  Ex  parte,  Tuff,  In  re    1 44 

Bank,  Ex  parte,  Jenkinson, 

In  re    125 

Patent  Brick  and  Tile  Co.  v. 

Butler 1931 

Nouvion  r.  Freeman,  Henderson,  In  re    ...  1039 

Noyce,  In  re,  Brown  v.  Bigg  2051 

Noyes  v.  Pollock  1265, 1281, 1283 

Nugent's  Trusts,  In  re 1 152 

Nugent  v.  Nugent 2030 

Numida,  The 1728 

Nutter  v.  Messageries  Maritimes  de  France  1410 

4  B  2 


38 


TABLE    OF    CASES. 


o. 


O.  D.  In  re,  Robinson,  Ex  parte   150 

O'Brien,  Ex  parte,  Dublin   and  Wicklow 

Manure  Co.,  In  re 447 

v.  Gillman  808 

v.  Tyssen 302,1485 

O'Byrne's  Estate,  In  re  628,1257 

O'Connor,  In  goods  of 1995 

O'Donnell  v.  O'Donnell     32,  2020 

O'Donoghue  v.  Vowles,  Vowles,  In  re  812 

O'Dwyer,  In  re 238 

O'Grady  v.  Mercers'  Hospital  515 

O'Hagan,  Ex  parte  1775 

O'Halloran  v.  King,  Bown,  In  re  937 

O'Kellj  *.  Harvey    1066 

O'Loughlin  v.  Dwyer    1106, 1137 

O'Malley  t>.  Kilmallock  Union  535 

CNeil  v.  City  and  County  Finance  Co.    ...    260 

O'Neill  (Lord),  In  re  1576 

O'Borke  v.  O'Rorke  919 

Oakey  v.  Dalton    1401 

v.  Stretton      591 

Oakfield,  The 1681 

Oastler,  Ex  parte,  Friedlander,  In  re  ...  98,  201 

Obert  v.  Barrow,  Douglas,  In  re    805 

Ocean  Iron  Steamship  Insurance  Associa- 
tion v.  Leslie    1020 

Steamship  Co.  v.  Anderson   ...  1446, 1724 

Octavia  Stella,  The    1296, 1681 

Oddy  v.  Hallett  1535 

Odell  v.  Cormack 217, 1612 

Odevaine  v.  Odevaine  901 

Official  Receiver,  Ex  parte,  Bear,  In  re  ...    164 

Ex  parte,  Bond,  In  re  ...    104 

Ex  parte,  Emery,  In  re    234 

Ex  parte,  Gould,  In  re . . .    210 

Ex  parte,  Holden,  In  re 

160,  1896 

Ex  parte,  Horniblow,  In 

re 90 

Ex  parte,  Mills,  In  re  ...    163 

Ex  parte,  Morritt,  In  re 

246,  248 

Ex  parte,  Parker,  In  re    194 

Ex  parte,  Reed,  In  re  ...    202 

Ex  parte,  Richards,  In  re    136 

Ex  parte,  Ryley,    In    re    609 

— —  Ex  parte,  Stephenson,  In 

re   143 

Ex  parte,  Taylor,  In  re  ...      89 

ExparU,  White,  J*r*... 136, 196 

Exparte,WHkiDBon,Inre    162 

Ex  parte,  Williams,  In  re    197 

Offer,    Ex  parte,    Metropolitan    (Brush) 

Electric  Light  and  Power  Co.,  In  re 761 

Ogle  v.  Sherborne  (Lord),  Whorwood,  In 
re 2036  | 


Olathe  Silver  Mining  Co.,  litre    414, 419 

Old  Mill  Co.  v.  Dukinfield  Local  Bond...  1470 
Old  Swan,  &c.  Benefit  Building  Society, 

In  re,  Evatt,  Ex  parte 278 

Old's  Trusts,  In  re,  Pengelley  v.  Herbert...  2097 

Oldenberg  (Prince),  In  goods  of 2011 

Oldham  v.  Stringer  1243 

Oliphant  v.  Gerard,  Gerard  (Lord),  In  re...   948 

Olive,  In  re,  Olive  v.  Westerman. 791, 1874 

Olley  u  Fisher    624,1796 

Olpherts,  Ex  parte,  Bann  Navigation  Act, 

In  re .. 1770 

Onslow,  In  re,  Plowden  v.  Gayford  923 

Onslow's  case 444 

Openahaw  t>.  Evans  1081 

Oppenheim  v.  Oppenheim 209 

Oppert  v,  Beaumont .35,1412 

Oram,  Ex  parte,  Watson,  In  re 110 

Orange  to  Wright 1930 

Orient    Steam   Navigation   Co.  v.  Ocean 

Marine  Insurance  Co .55, 533, 1426 

Oriental  Bank  Corporation,  In  re  ...28,  410, 428, 

\m 

In  re,  TheCrown, 

Ex  parte...  321, 
430,595 

In  re,  Gufllemin, 

Ex  parte...   436 

In  re,  MacDow- 

all'sCase...  442, 
1188 

v.  Richer 335 

Orme,  In  re,  Evans  v.  Maxwell  12, 785 

Ormerod  v.  Bleasdale   ~ 38 

Ormston,  In  re,  Goldring  r.  Lancaster.. ....  525 

Oramond,  In  re,  Drury  v.  Orsmond 792 

Orwell,  The    1725 

Osborne  v.  London  and  North  Western  Ry.  1294 

«.  Milman  1536,1793 

V.Morgan   320 

Otto  v.  Steel  I*39 

Otway,  Ex  parte,  Otway,  In  re. 105,  607, 902 

v.  Otway  893,899 

Outlay  Assurance  Society,  In  re 3U 

Over-Darwen  (Mayor)  «.  Lancashire  JJ. 

1862,1983 

Ovey,  In  re,  Broadbent «.  Barrow   .304, 309, 

2115 

Owen,  Ex  parte,  Owen,  In  re 105,1327 

In  re,  Payton,  Ex  parte  -201, 1753 

v.  Edwards,  Edwards,  In  re 619,1491 

v.  Morgan,  Morgan,  In  re  40, 1505 

v.Roberts  *?° 

Owens  v.  Shield. - 70 

College  v.  Chorlton-upon-Medlock 

Overseers    137f 

Owtram,  In  re,  Marshall  v.  Edelston. I*5 

Oxford  Benefit  Building  Society,  In  re  ...   362 
Ozley  r.  Rcarth,  Pearson,  In  re 1WS 


TABLE    OF    CASES. 


39 


p. 

Pacific,  The    1688, 1689 

Packard  v.  Collings  720,  722 

Paddington  Burial  Board  v.  Inland  Revenue 

Commissioners 698,  1567 

Page,  In  re,  Mackay,  Ex  parte 123 

v.  Eastern  and  Midlands  By 364 

v.  Morgan 472, 1580 

r.  Blade    1337 

Paget  v.  Marshall    624, 1231 

Paget's  Settled  Estates,  In  re 1622,  2075 

Paine  v.  Matthews    225 

Paine's  Trusts,  In  re 1915, 1917 

Painter,  Ex  parte,  Moser,  In  re    120 

Palatine  Estate  Charity,  In  re 310 

Palermo,  The 647, 1702, 1724 

Paley  v.  Garnett    1196 

Palinurus,  The   - 1683 

Palliser  v.  Gurney     926 

Palmer,  Ex  parte,  Palmer,  In  re  190 

In  re,  Skipper  v.  Skipper 1472 

v.  Hnmmerston    635 

v.  Johnson 615,  617, 1927 

v.  MaUet 487,1336 

v.  Palmer. 745,2064 

Palmer's  Trade  Mark, Inre 1837, 1847 

Palomares,  The    546, 1727 

Pandorf  t>.  Hamilton    615 

Panmure,  Ex  parte,  National  Coffee  Palace 

Co.,  In  re     882, 1518 

Pape  v.  Pape 934 

Paris  and   New  York  Telegraph    Co.  v. 

Penzance  Union. 1375 

Parish  v.  Hudson,  Lucas,  in  r«  44 

c.Poole    633,1242 

Parisian,  The 1725 

Park,  In  re,  Eoster,  Ex  parte 608 

Parkdale  Corporation  v.  West    326 

Parke,  In  re 234,  266, 1826 

Parker,  Ex  parte,  Chapman,  Inre   1 43 

Inre 1769 

In  re,  Dealing  v.  Brooks 1454,  2015 

In  re,  Official  Receiver,  Ex  parte    194 

and  Beech,  In  re 1947 

v.  Blenkhorn   1773 

o.Inge  862 

v.  Winder,  Wilson,  In  re  2027 

Parker's  Will,  In  re 1900 

Parkers,  In  re,  Sheppard,  Ex  parte 147 

In  re,  Tnrquand,  Ex  parte  ...  122, 126, 

232 

Parkin  «.  Cresswell, Cresswell,  Inre. 2045 

Parkinson,  In  re  593,1749 

v.  Potter 1024,  1086, 1370 

Parnacottf.  Passmore 818 

Paraell  v.  Mort 526,  562, 1348 

v.  Btedman 826 

Parrott,  In  re,  Parrott  v.  Parrott    ...  2069,  2071 


Parrott,  In  re,  Walter  v.  Parrott. 1613,  2069 

Parry  and  Daggs,  In  re 2048,  2074 

Parsons,  Ex  parte,  Townsend,  Inre  ...  225,  237 

v.  Cotterell 486 

v.  Hargreaves  249,  252 

Partington,  In  re,  Partington  v.  Allen 1748, 

1874, 1876, 1878 

v.  Hawthorne  727, 1613 

Partridge,  Ex  parte 1206 

v.  Mallandaine    1567 

Pascoev.  Puleston 721 

Pass,  In  re 1744 

Patent  Invert  Sugar  Company,  In  re  375 

Paterson,  Ex  parte,  Bathbone,  In  re 119 

Patience,  In  re,  Patience  v.  Main 1028 

Paton  v.  Carter 1098 

Patroclus,  The   1683 

Patten  v.  Wood 1187 

Patton  v.  Employers'  Liability  Assurance 

Co 997 

Paull,  In  re    1762 

Paxton v.  Macreight,  Macreight,  In  re,..     59, 

1028 
Payne,  Ex  parte,  Coton,  In  re 239 

Ex  parte,  Sinclair,  In  re  168 

In  re,  Castle  Mail  Packets  Co.,  Ex 

parte 183, 188,  201 

v.  Esdaile 701, 1153 

v.  Tanner 790 

Payne's  Settlement,  In  re,  Kibble  v.  Payne  1921 

Payton,  Ex  parte,  Owen,  Inre 201, 1753 

Peace,  Ex  parte,  Williams,  In  re 247 

and  Ellis,  In  re 1773 

and  Waller,  In  re  770,931 

Peacock  v.  Colling  1898,1899,1911 

Peake,  In  re,  Harrison,  Ex  parte  159,  842 

v.  Finchley  Local  Board 874 

Pearce,  In  re,  Board  of  Trade,  Ex  parte 

92, 194 

In  re,  Crosthwaite,  Ex  parte... 157, 1641 

In  re,  McLean  v.  Smith    810 

v.Foster 648,1188 

Peard  r.  Morton,  Lnddy,  Inre 2044 

Pearson,  In  re,  Oxley  v.  Scarth 1873 

-  In  re,  West  Cannock  Colliery  Co., 

Ex  parte 156 

v.  Att-Gen.,  Perton,  Inre 744 

v.  Pearson    555,  615, 752,  801,  845 

v.  Ripley 54,531 

Pease  v.  Pattinson 308 

Peat  v.  Broughton,  Broughton,  In  re...  191,  2077 

v.  Fowler 351,  830 

v.  Nicholson 1274 

Peckham  Tramways  Co.,  In  re 417 

Pedder*.  Hunt  1161,2059 

Peek  v.  Deny 344,  345,  350,  824 

v.  Savory,  Harvey,  In  re 2081 

Peel,  In  re 1160,1902 

Pegram  v.  Dixon  1194 


40 


TABLE    OF    CASES. 


Pellew,  In  re,  Meager,  Fob  parte 607,  944 

Pelly,  Ex  parte,  Anglo-French  Co-operative 

Society,  In  re 431 

Pengelley  v.  Herbert,  Old's  Trusts,  In  re..,  2097 

Pennington,  In  re,  Cooper,  Ex  parte  826 

v.  Payne,  Wilson,  In  re    781 

Penny  v.  Hanson  1925 

People's  Cafe  Co.,  In  re 378 

Pepper's  Trusts,  In  re 954 

Pepper,  In  re,  Pepper  v.  Pepper    ...    1167, 1484 

Perdval,  In  re,  Boote  v.  Dutton    1996 

v.Dunn 61,1466 

v.  Pedley    551 

Percy  v.  Percy,  Percy,  In  rr  2055 

Perkins  r.  Dangerfield 1474 

v.  Gingell 1648,1972 

Perratt   v.    London    Scottish    Permanent 

Benefit  Building  Society 274 

Perriam,  In  re,  Perriam  v.  Perriam  1936 

Perry,  Ex  parte. 510 

v.  Barnett  1528 

v.  Spencer,  Harrison,  In  re 493 

Perton,  In  re,  Pearson  v.  Att.-Gen 744 

Pesood  ?.  Pescod   52 

Peshawur,  The  1431,1723 

Peter  v.  Thomas-Peter 1404 

Peterborough    Corporation   v.  Wilsthorpe 

Overseers 26,29 

Peters  v.  Tilly 731,1434 

Pethybridge  v.  Barrow,  Shield,  In  re  1869 

Petty  v.  Daniel  68,1482 

Pfeiffer  v.  Midland  Ry 1474 

Phelan  v.  Slattery 2021 

v.  Tedcastle  469 

Phelips  v.  Hadham  District  Board 7, 1466, 

1979 
Phelps  v.  Comber 129,1587 

v.  Upton  Snodsbury  Highway  Board    516 

Phelps'  Settlement  Trusts,  In  re  1916 

Philips  v.  Beale 1467 

Phillips,  Ex  parte,  Harvey.  In  re 179 

Ex  parte,  Phillips,  In  re 106, 205 

Ex  parte,  Rodway,  In  re 199, 200 

Ex  parte,  Watson,  In  re 30, 786 

In  re    967 

:    In  re,  Bath,  Ex  parte 141, 272 

,    In  re,  Phillips,  Ex  parte 106, 205 

V.Andrews 1322 

p.  Goff... 1592 

v.  HighlandRy 1721 

v.Homfray 19 

V.Phillips   926,1820,1867,2064 

Phillipson  v.  Emanuel 1409 

Philp,  Ex  parte,  United  Stock  Exchange, 

In  re   416 

Phipps  v.  Jackson  990, 1089 

Pickard,  In  re,  Turner  v.  Nicholson    1162, 1323 

v.  Wheater,  Robinson,  In  re    1487, 1488 

Picker  v.  London  and  County  Banking  Co.  1304 


Pickering,  In  re,  Pickering  v.  Pickering  ...  651 , 

1331 

Pidler  v.  Berry  818 

Pierson  v.  Knutsford  Estates  Co 1789 

Pietermaritzburg  (Mayor)  v.  Natal  Land 

Co.    330,1803,1811 

Pike  v.  Ongley  753,1520 

Pilley  v.  Robinson 1406 

Pilling's  Truste,  In  re 1402, 1904 

Pilot  v.  Craze 1513 

Pine  v.Barnes   1065 

Pinnas,The    1706 

Pitman  v.  Francis  , 1747 

Pitt's  Estate,  In  re,  Lacy  v.  Stone 306,2121 

Pitt  v.  White 1322 

Planet,  The 1726 

Plater  v.  Burnley  (Mayor) 1233 

Piatt,  In  re H&& 

v.Mendel 1267,1272 

Player,  In  re,  Harvey,  Ex  parte   167 

Plimmer  v.  Wellington  (Mayor)    336 

Plowden,  Ex  parte,  Hutchinson,  In  re    156, 772 

v.  Gayford,  Onslow,  In  re 923 

Plowright  v.  Lambert  1886 

Plumb  v.  Craker    556 

Plumstead  Board  of  Works  r.  Spackman...  1803 

Pochin  v.  Smith 834 

Pocockv.  Gilham 1092 

Pointin  v.  Porrier 289 

Pointonv.  Hill  1924 

Pollard,  In  re 1752 

Pollen  Trustees,  Ex  parte,  Davis,  In  re  159, 1094 

Pollexfen  v.  Sibson  1330 

Pollock,  In  re,  Pollock  v.  Woxrall ...    2087,208$ 

v.  Lands  Improvement  Co.  ...  669, 1809 

Pomero  v.  Pomeio „..   896 

Pommery  v.  Apthorpe 1570 

Ponsford  v.  Abbott   186,1081 

Ponsonby  v.  Ponsonby 906 

Pontida,The 1715 

Pontifex  v.  Foord 1459 

Pool's  case 445 

Pool  v.  Tunnel  Mining  Co 446 

Poole,  In  re,  Poole  v.  Poole. 1445 

Poole's  Settled  Estate,  In  re 1& 

Pooley,  In  re 1780,2008 

Pooley's  Trustee  v.Whetham,  34,93,614,1442,173: 

Pope,  J»  re 771,1453 

Poppleton,  Ex  parte,  Thomas,  In  re 35$ 

Porrett  v.  White    14* 

Portal  and  Lamb,  2*  re  2087 

Porteous  v.  Reynar  ....   538 

Porter  v.  Grant 807,812 

v.  Porter 1167,1» 

Portman  v.  Home  Hospitals  Association  ...  1087 

Portsmouth  (Mayor)  v.  Smith    -  -  •   & 

Postlethwaite,  In  re,  Ledger,  Ex  parte  ...    1® 

In  re,  Postlethwidte  ».  Kick- 

man  649,1886 


TABLE    OF    CASES. 


4i 


Postmaster-General  v.  Green  ...    736, 1389, 1816 
Potter,  In  re,  Potter  v.  Potter    2095 

v.  Dudeney   495,2108 

Potteries,  Shrewsbury,  and  North  Wales 

Co.,  In  re    *. 1319 

Poulter  v.  Shackel,  Briant,  In  re  786, 918 

Poulton,  Ex  parte    .....4. 505 

Pounder,  In  re,  Williams  v.  Pounder   2059 

Pountain,  In  re 1166 

Powell  «.  Apollo  Candle  Co 318 

v.  Cobb  1469 

.    v.  Hulkes,  Hulkes,  In  re 792 

v.  Nevitt    461 

Power  v.  Barrett  1931 

v.  Power 1189,1748 

Powers,  In  re,  Lindsell  v.  Phillips  ...  804, 1148, 

1152 

Prater,  In  re,  Desinge  v.  Beare 2069 

Pratt,  Ex  parte,  Pratt,  In  re 101 

Pratt's  Trusts,  In  re 1905 

Prcece  v.  Gilling 230 

Prentice  v.  Tabor 1997 

Preston  v.  Etherington 610,612 

r.  Luck 468,1797 

(Mayor)  v.  Fulwood  Local  Board      686, 

1502,  1978 

Previdi*.  Gatti 1192 

Prevost  v.  Compagnie  de  Fives-Lille 828 

Price,  Ex  parte,  Navan  and   Kingscourt 

Ry.,  In  re 1550 

In  re 1164 

In  re,  Foreman,  Ex  parte  119 

In  re,  Leighton  v.  Price  1627 

In  re,  Stafford  v.  Stafford    989, 1992 

In  re,  Williams  v.  Jenkins  811 

In  goods  of 1993 

r.«Al"  Ships'  Small  Damage  In- 
surance Co 1015 

v.  Bala  and  Festiniog  Ry 987, 1542 

r.  Bradley   819 

r.  Livingstone 1673 

v.  Neault 323 

x.  Price    1155 

v.Shaw    1204 

v.  Stafford  939,1992 

t'.Wilkins   489,1595 

Price's  Patent  Candle  Co.,  In  re  1840, 1841, 1849 

Priest  r.  Archer 818 

Priestman  v.  Thomas    725, 2012 

Prim  v.Smith    1204 

Princess,  The 1698 

Pringle,  Ex  parte,  Bombay  Civil  Fund  Act, 

In  re    964 

Prinz  Heinrich,  The 1708 

Prior  v.  Bagster    1336 

Pritchard  v.  Bangor  (Mayor) 608 

v.  Pritchard 553,1474 

Proctor  v.  Bennis 789, 1340, 1344 

v.  Smiles  663,1734 


Proctor  v.  Webster   684 

Progressive  Investment  and  Building  So- 
ciety, In  re,  Corbold,  Ex  parte 279, 433 

Provincial  Bank  v.  Cussen 1532 

Prynne,  In  re 942, 988 

Pry  or,  In  re,  Board  of  Trade,  Ex  parte  ...    199 

v.  Pryor  884,908 

Pugh,  In  re,  Lewis  v.  Pritchard 543 

Pulbrook  v.  Ashby 229 

Pullan  v,  Roughfort  Bleaching  Co 681 

Punch  v.  Boyd  639 

Purcell,  In  re 1641, 1644 

17.  Henderson  1359 

v.  Sheehy 952 

Purser  v.  Worthing  Local  Board    871 

Purssell,  Ex  parte,  New  City  Constitu- 
tional Club  Co.,  In  re   424 

Purvis,  In  re,  Rooke,  Ex  parte  ... 137 

Pyatt,  In  re,  Rogers,  Ex  parte  ...   135,  629,  935 

Pybus,  In  re  1760 

Pyman  v.Burt  1659,1668 


Q. 


Quarts  Hill  Consolidated  Gold  Mining  Co. 

v.  Byre 1170 

Queade's  Trusts,  In  re 708,947 

Queale's  Estate,  In  re 781 

Queensland  Mercantile  Agency  Co.,  In  re .    418 

Quilligan  t>.  Limerick  Market  Trustees 1184 

Quinlane  v.  Murnane    1475 

Quinn,  Ex  parte,  Nicholson,  In  re   1 784 


R. 


Rackstraw's  Trusts,  In  re   1904 

Railway  Sleepers  Supply  Co.,  In  re  ...  407, 1825 

and  Electric  Appliances  Co.,  In 

re 465,620 

Rainbow,  The    1654,1655 

Rainford  v.  Enowles,  Enowles,  In  re  2032 

Raisby,  The  538, 1708, 1728 

Ralph  Creyke,  The   1690 

Ralph's  Trade-mark,  In  re 1847,  1853 

Ramsay's  case 419 

Ramskill  v.  Edwards 186, 1401, 1530, 1879 

Randall  v.  Lithgow  73 

Randell,  In  re,  Hood  v.  Randell    40 

In  re,  Randell  v.  Dixon  308 

Ranelagh's  (Lord)  Will,  In  re    1868 

Rankart,  Ex  parte,  Blakeway,  In  re  ...  132,  201 

Rankin,  Ex  parte,  Rankin,  In  re 183,  203 

Raphael*?.  Burt 1585 

Rapley  v.  Taylor   1095 


42 


TABLE    OF    CASES. 


Rasbotham  v.  Shropshire  Union  Rys.  and 

Canal  Co 665 

Rathbone,  In  re,  Peterson,  Ex  parte 119 

Rathmines  Drainage  Act,  In  re 1638 

Ravenscroft  v.  Workman,  Arnold,  In  re  307, 2121 

Raw,  In  re,  Morris  v.  Griffiths  493 

RawlingB,  Ex  parte,  Cleaver,  In  re  239,  249, 251 

Ex  parte,  Davis,  In  re 127t  232 

Ex  parte,  Forster,  In  re  166 

v.  Emmerson,  Emmerson,  In  re  462, 

543,  2014 
Rawnsley  v.  Lancashire  and  Yorkshire  Ry.    560 

Rawstone  v.  Preston  Corporation  647 

Ray's  Settled  Estates,  In  re  1162,  1630 

Rayt>.  Wallis 1192 

Rayner*s  Trustees  and  Greenaway,  In  re...  1884 

Read,  Ex  parte 687 

v.  Anderson  834, 1522 

t>.  Brown   6,1203 

Readdy  v.  Pendergast  1737 

Reading  v.  London  School  Board 1040 

Real  and  Personal  Advance  Co.  v.  Clears...    243 

Reay  v.  Gateshead  (Mayor)    858 

Redfield  v.  Wickham  (Corporation) 327 

Redhead  v.  Westwood  232 

Reece  v.  Strousberg 1095, 1263 

Reed,  Ex  parte,  Reed,  In  re...  169, 170, 187,  207 

In  re 2039 

In  re,  Official  Receiver.  Ex  parte   ...    202 

In  re,  Reed,  Ex  parte ...  169, 170,  187,  207 

v.  O'Meara    1829 

v.  Winn,  Winn,  In  re 920, 1002 

Rees,  In  re,  Rees  v.  Rees 1775 

Reeve,  Ex  parte,  Lowestoft  (Manor  of), 

In  re  596,  1126 

v.  Berridge , 1930 

Beeves  v.  Barlow 225,  264 

Regalia,  The  1651 

Reg.  v.  Adams    581 

f».  Andover  Justices 1067 

v.  Ashwell 575 

v.  Ayley 566 

v.  Bangor  (Mayor)  507 

v.  Banks 676 

v.  Barnet  Union  977 

v.  Beckley 1063 

v.  Beddlington  Overseen   1878 

v.  Berwick  Assessment  Committee  ...  1371 

v.  Biron 1175 

v.  Bishop    1048 

v.  Bloomsbury  County  Court  Judge . . .    719 

v.  Brackenridge 587,  732, 1062, 1066 

v.  Bredin    569 

v.  Brindley    840 

v.  Brittleton 590 

v.  Brompton  County  Court  Judge   549,  608 

v.  Buckmaster 675 

v.  Burgess 573 

v.  Burns  586,592 


Beg.  t. 

v. 

V. 

V. 

V. 

ft. 

V. 

F. 


V. 

V. 
V. 
V. 

v. 

V. 


v. 

v. 

V. 

v. 

V. 
V. 
V. 

r. 
v. 
v. 
v. 

V. 
V. 
V. 

V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

f>. 

V. 
V. 

v. 

V. 

V. 
V. 
V. 

<?. 

v. 

V. 
V. 

V. 

ff. 

V. 

V. 
V. 


Burnup 862 

Burton  572 

Bushell  593,1365 

Butt    573 

Carroll  1540 

Carter 576 

Cattley 830 

Central  Criminal  Court  (Justices)    23, 

577,587,1174 
Cham  wood  Forest  Ry.   ...  390,  737, 1175 

Cheshire  Justices 1984 

Chittenden    197fi 

Christopherson 696, 1373 

Cinque  Ports  Justice  1924 

City  of  London  Court  Judge  654, 55*». 

1648, 1721 

Clarence    582 

Clark 1925 

Coles  584 

Coley 567 

Cooban 847,848 

Cook  835 

Copping  Syke  Overseers 1381 

Cork  Justices   1068 

Cox   756,1049,1178,1734 

Crawford  1924 

Crewkerne  Justices 1051 

Cronmire  568 

Croydon  County  Court  Judge...  138,548 
Croydon  and  Norwood  Tramways 

Co 1862 

Cumberland  Justices  1062 

Cuming,  Hall,  Ex  parte  ->8 

Curtis 579 

De  Portugal 814 

DeWinton    212 

Deasy 586 

Dee 580 

D'Eyncourt  1065 

Denbighshire  Justices 1381 

Dibbin  1367 

Dobbins -..  10W 

Doherty  579,592 

Doutre 211,323 

Dover  (Recorder)    1975 

Downing  515 

Dublin  (Recorder)  104** 

Dudley  579 

Dykes  565,941 

Eardley  583,732,1064,1177 

East  and  West  India  Dock  Co. 1222 

Edwards 616, 1063. 1122 

Essex 266, 1119 

Essex  County  Court  Judge  ...  556. 1022 

Essex  Justices WW 

Farrant r 1062 

Felbermann Wl 

Finkelstein 574,815 

Flannagan 580,588 


TABLE    OF    CASES. 


43 


Reg.  f. 

«. 

v. 

V. 

V. 

t\ 

V. 

v. 

V. 

V. 

V. 

V. 

V. 

V. 

e. 

v. 

o. 

V. 

■ <\ 

r. 

r. 

r. 

r. 

p. 

r. 

r. 

r. 

r. 

e. 

F. 

v. 

r. 

F. 

r. 

v. 

p. 

F. 

v. 

V, 

V. 

V. 

V. 

V. 

V. 

V. 

if. 

V. 

r. 

V. 

r. 

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o. 

v. 


Flavell  213 

Fletcher 213, 1063 

Flowers 675 

Foote 24 

Fox 723 

Garrett  1052 

Garstang  Union  1386 

Garvey  723 

General  Assessment  Sessions 1222 

General  Medical  Council  1206 

Gibson   591 

Gilham  1989 

Great  Western  Ry 1551 

Great  Western  Ry.  Directors 506 

Greenwich  Board  of  Works  1218 

Greenwich  County  Court  Judge  ...    556 
Greenwich  County  Court  Registrar   193, 

555,  557 

Griffiths 1068 

Gunnell 590 

Hadfield 584 

Hagbourne  (Vicar) 694 

Hall    214 

Hands 574 

Hanley  (Recorder) 840 

Hannam 872 

Haslehurst 1367,  1368 

Hatts 588 

Hazzlewood  671 

Headlam   1379 

Henkers 581 

Hollis 575 

Holmes 572 

Holroyd 552 

Income  Tax  Commissioners...  1174, 1477, 

1573 

Ingham 1561 

Inland  Revenue  Commissioners  ...  1174, 

1578 
Inland    Revenue    Commissioners, 

Empire  Theatre,  In  re 1046 

Jefferson   1379 

Jessop 678 

Johnson 680 

Johnston  1656 

Jones  571,588 

Jordan 460,  550,  559 

Juby  187 

Judd  640 

Kain  692 

Kay    566 

Kent  Inhabitants    863 

Kettle    559 

King    1048,1177 

Kirkdale  Justices    1049 

Labouchere  640 

Lambeth  County  Court  Judge 462, 

550,  719 
Langriville  Overseers 1381 


Reg.  v. 
v. 

v. 

V. 

V. 

V. 


v. 

V. 
V. 
V. 

r. 
t. 


v. 

v. 

V. 
V. 

v. 
v. 

V. 
V. 
V. 
V. 

0. 

V. 

V, 

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v. 

V, 
V. 

v. 

V. 
V. 
V. 
V. 
V. 
V. 

v. 

V, 

0. 

V. 
F. 
V. 

p. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

t\ 

V. 
V. 
V. 
V, 

r. 


Latimer 682 

Lavaudier 814 

Lee 212 

Leeds  County  Court  Registrar 555 

Leresche    934 

Lincolnshire  County  Court  Judge. . .   771, 

1456 

Liverpool  Justices  1051 

Liverpool  (Mayor) 561 

Llewellyn 863 

Lloyd     584 

Local  Government  Board 1975 

London  (Mayor)  ...  641,  941,  1068,  1071, 

1176 

London  School  Board 1373 

London  and  North  Western  Ry. ...    593 

Long 854 

Lordsmere  Inhabitants 1985 

McDonald     576 

Mace 681 

Mallory 591 

Mann 589 

Manning    566 

Market  Bosworth  Justices     1051 

Marsham 1176, 1221 

Marylebone  County  Court  Judge . . .    551 

Marylebone  Guardians  1381 

Masters 592 

Midland  Ry 1551 

Millhouse  592 

Miskin  Higher  Justices  1052 

Merthyr  Tydvil  Justices  1060 

Metropolitan  Ry.     1816 

Montagu   1050 

Moore    1595 

Newcastle-upon-Tyne  Justices 1053 

Nillins    814 

Northampton  County  Court  Judge    830 

Norton     588,  722 

O'Connell 1049 

Oldham  Justices 934 

Owen 582 

Packer  581 

Peters  187,592 

Phillimore     1175 

Pierce    572 

Pilling   1175 

Pirehill  Justices  1178 

North  Justices  1177, 1810 

Poole  (Mayor) 587,  878, 1984 

Poplar  Union    1222 

Portugal    569 

Poulter 1118, 1119 

Powell 513,  571 

Preston  Guardians  1386 

Price 605,  564,  578 

Pruntey 589 

Ramsay    640,  641 

Randell 570 


44 


TABLE    OF    CASES. 


Reg.  «.  Rawlins 1367 

c.  Redditch  Justices    1051 

©.Regan    691 

v.  Registrar  of  Joint-Stock  Companies   446, 

1174, 1177 

v.  Riel    323 

r.  Riley    580,591 

v.  Ritson    577  ' 

v.  Robinson   506 

v.  Robson  567 

v.Rogers    548 

v.Rose   578 

v.  Rudge    24 

v.  St.  George's  Vestry 695, 1 208 

v.  St.  Mary,  Bermondsey  1223 

v.    Islington  1222, 1382 

v.  St.  Marylebone  Vestry  60 

-    -  v.  St  Matthew's,  Bethnal  Green 695 

v.  St.  Olave's  Union    1381 

—  —v.  Sampson    570 

v.Sandoval   1959 

v.  Seme 579 

v.  Sheffield  (Recorder)    870 

v.  Sheil 1176,1213 

v.  Shepley 1369 

v.  Shingler 214 

v.  Shropshire  County  Court  Judge  548, 1061 

v.  Shurmer    ♦    588 

v.  Sibly 1317,1369 

v.  Simpson     566 

v.  Slade  18 

v.  Smith  589,  1123, 1370 

v.  South  Staffordshire  Waterworks  Co.  1377 

v.  Southampton  County    1985, 1986 

v.  Southend  County  Court  Judge  ...  1721 

v.  Sparks    1051 

p.  Staffordshire  County  Court  Judge    550 

v.         (Justices)    1177, 1810 

v.  Staines  Local  Board  593 

v.  Stephens 568 

v.  Stephenson     505,  564,  578 

v.  Stepney  Union   1384 

v.  Stonor 528,  549,  608 

v.  Stroulger  587,  722 

v.  Stubbs    593 

v.  Sullivan 590 

v.  Surrey  Justices   299,1047 

v.  Sussex  County  Court  Judge  110 

—  v.  Wakefield 1051 

v.  Wakefield  Guardians  1386 

v.  Wakefield  (Mayor) 878,1985 

v.  Wandsworth  Board  of  Works 1217 

v.  Ward 586 

v.  Warr  1989 

v.  Wealand 581 

v.  Webster 582 

v.Weil 23,814 

v.  Wellard 583 

r.  Wells  Water  Company   1962 


Beg.  r.  West  Bromwich  School  Board 1374 

v.  West  Riding  Justices  1053,1057 

v.  Westmoreland  County  Court  Judge    547, 

1538 

r.  Wheatley  528,862 

r.  Whelan 1540 

v.White 1317,1369 

r.  Whitfield   1168 

r.  Wigan  Corporation 512 

c.  Williams 337, 1300 

r.  Wilton  (Mayor)   509 

r.  Wolverhampton  (Recorder)  1072 

r.  Woodfield  590,834 

r.  Wynn 576 

v.  Tonbridge  Overseers 697,1804 

r.  Tooke 1062 

c.  Townshend    225,569 

r.  Trinity  House  Corporation 1681 

- —  v.  Truro  (Lord) 627 

r.  TurnbuU. 1070,1536 

».  Tynemouth  Justices 1070, 1536 

v.  York  (Archbishop)  687 

r.  Yorkshire  Justices,  Gill,  Ex  parte.. .117& 

Reichel  v.  Oxford  (Bishop) 690 

Reid,  Ex  parte  1176 

Ex  parte,  Gillespie,  In  re 152,  200 

Ingoodsof  2012 

c.  Explosives  Company 441 ,  1188 

r.  Hoare 956 

v.  London  and  Staffordshire  Fire  insu- 
rance Company  349 

v.  Reid 918,924,1807 

Renpor,  The    1704,1707 

Republic  of  Peru  v.  Dreyfus   1024, 1412 

v.  Peruvian  Guano  Com- 
pany      1464 

Revell,  Ex  parte,  Tollemache,  In  re   ...  149,746 

Revill,  In  re,  Leigh  v.  Rumney 806 

Rew  v.  Payne 1582 

Reynolds,  Ex  parte,  Barnett,  In  re... SB,  193, 196 

Ex  parte,  Norris,  In  re 9$ 

v.  Coleman 1413,1416 

Rhoades,  In  re,  Lane  v.  Rhoades   3073 

Rhodes,  In  re,  Hey  worth,  Ex  parte 114 

In  re,  Rhodes  v.  Rhodes   742 

Will,  In  re  1430 

r.  Dawson 189,1042,1443 

v.  Jenkins,  Mansel,  In  re 1896 

v.  Pateley  Bridge  Union 1378 

— —     v.  Rhodes,  Rhodes,  In  re. 742 

r.  Sugden,  Wadsworth,  In  re   1788, 

1789, 1790 

Rhondda,  The 1689 

Rhosina,  The 517, 1297,  1301,  1517,1718 

Rice,  2*  re 750 

v.  Howard. 755 

Richards,  Ex  parte,  Wallace,  In  re 112, 1391 

In  re,  March,  Ex  parte 204 

In  re9  Official  Receiver,  Ex  pa  He    13C 


TABLE    OF    CASES. 


45 


Richards,  In  re,  Shenstone  v.  Brock 1870 

• In  re,  Williams  v.  Gorvin 2055 

v.  Banks  1046,  1561 

v.  Jenkins 735,  774,  1041 

v.  Kessick 853 

r.  West  Middlesex  Waterworks 

Co 1199,  1968 

Richardson,  In  re,  Gould,  Ex  parte  88,  141 

In  re,  Shillito  v.  Hobson 1243 

In    re,    Shuldham    v.    Royal 

National  Lifeboat  Institu- 
tion     306,  1868 

v.  Brown 856 

v.  Feary    1321 

v.  Harrison    2026,  2055,  2103 

v.  Pratt 97 

v.  Webb 767 

Richardson's  Will,  In  re 308 

Riddell,  In  re,  Strathmore  (Earl),  Ex  parte    1 09 

i?.  Errington 936,  1627 

Riddeough,  In  re,  Vaughan,  Ex  parte.. .136, 165 

Ridge,  In  re,  Hellard  v.  Moody 1632 

Ridgway,  JSx  parte,  Ridgway,  In  re 167 

In  re,  Mein,  Ex  parte 146 

v.Ward   74,1987 

Riel  v.  Reg 323 

Rigborga  Minde,  The 1679,  1680 

Rigg  v.  Hughes,  Smith,  In  re 43,  2015,  2016 

Riley  to  Streatfield,  In  re 1948 

Ringdove,  The    1653 

Rio  Tinto,  The 1651, 1721 

Ripley  v.  Paper  Bottle  Co 398 

■ v.  Sawyer  982,1507 

Ripon,The   1680,1691 

Risoluto,  The 1699 

Riyer  Lagan,  The 1698 

River  Plate  Fresh  Meat  Co. ,  In  re    380 

Rivett-Camac's  Will,  In  re 1631,  1825 

Riviere's  Trade-mark,  In  re  ...  1835,  1852,  1853 

Robarts,  Ex  parte,  Gillespie,  In  re 143,  223 

,  Robert  Dickinson,  The 1651 

Roberts,  Ex  parte 300 

In  re,  Daniel,  Ex  parte  1 64 

In  re,  Evans  v.  Roberts 229,  472, 

1588 

In  ret  Riff  v.  Roberts...  28, 1398,  2065 

In  re,  Tarleton  v.  Bruton    2049 

-  -    v.  Barnard  1522 

v.  Falmouth  Sanitary  Authority. . .  1594 


v.  Oppenheim  650,652 

--    -    v.  Roberts    228,237,240,241,255 

Robertson,  In  re  205,1774 

v.  Broadbent    2084,  2086 

v.  Richardson 191 

Robey  v.  Snafell  Mining  Co 1416 

Robins,  In  re,  Nelson  r.  Robins 1578 

Robinson,  Ex  parte,  O.  D.,  In  re  150 

In  re  65,  903,  1164 

In  re,  Pickard  r.  Wheater. .  .1487,  1488 


Robinson  v.  Barton  Local  Board 852,  858 

v.  Dand 691 

v.  Gandy,  Garnett,  In  re  949 

r.  Milne 265,  1078,  1225 

v.  Needham,  Need  ham,  In  re  ...  2116 

^.Robinson 904 

v.  Trevor  270, 1247 

— -      v.  Tucker 25,  224,  1045,  1474 

Robinsons,  The  1720 

Robson,  Ex  parte 511 

r.  Ownerof  the  Kate 1720 

v.  Worswick,  Worswick,  In  re 647 

Rochdale    Building    Society   v.   Rochdale 

(Mayor) 872,  1070 

Rodocanachi  v.  Milburn 1666, 1672 

Rodway,  In  re,  Phillips,  Ex  parte  199,  200 

Roe  v.  Birch,  Birch,  In  re  788, 1073 

v.  Mutual  Loan  Fund  ...  188,  244,  260,  736 

Rogers,  Ex  parte,  Pyatt,  In  re   ...  135,  629,  935 
. Ex  parte,  Rogers,  In  re 170,  172 

In  re,  Board  of  Trade,  Ex  parte  ...      92 

v.  Drury    488 

Holland  v.  Cassidy 322 

Rollason,  In  re,  Rollason  v.  Rollason...  766, 1358 

Rolls  i'.  London  School  Board 1592 

v.Miller    1086 

Bona,  The  1652 

Ronan  v.  Midland  Ry 296 

Rooke,  Ex  parte,  Purvis,  In  re 137 

Rooney,  Ex  parte,  Tallerman,  In  re 151 

Roots  v.  Beaumont   864 

V.Williamson 386 

Roper,  In  re,  Roper  v.  Doncaster  929 

Rose  of  England,  The 1692 

Roselle  v.  Buchanan 636, 1438 

Rosetta,  The 1686,1686 

Rosher,  In  re,  Kosher  v.  Rosher 616,  2073 

Rosing's  Application,  In  re 1844, 1848 

Ross,  Ex  parte,  British  Empire  Match  Co., 

In  re 382 

Ex  parte,  Cripps,  In  re  113, 158 

v.  Army  and  Navy  Hotel  Co 370 

ltothbury,  The   1668 

Rotherham  (Mayor)  v.  Fullerton 854 

v.  Rotherham    . 2061 

Alum  and  Chemical  Co.,  In  re 

403,  475 

Rous  v.  Jackson 2102 

Routh,  Ex  parte,  Whitehead,  In  re 474 

Rowe,  In  re,  Rowe  v.  Smith  978 

v.Kelly  1426 

v.  London  School  Board  1799 

v.  Smith,  Rowe,  In  re 978 

Rowlands,  In  re,  Board  of  Trade,  Ex  parte      94 

v.  De  Vecchi    745, 1135 

v.  Williams  1789 

Rownson,  In  re,  Field  v.  White  783,  78& 

Royal  Bristol  Permanent  Building  Society 

v.  Bomash   1799 


46 


TABLE    OF    CASES. 


Royal  Exchange  Shipping  Co.  t>.  Dixon  ...  1670 

Liver  Friendly  Society,  In  re 831 

Mail  Steam   Packet  Co.  v.  English 

Bank  of  Bio  de  Janeiro    1715 

Rudland  r.  Sunderland  (Mayor)    857 

Ruffle  v.  Medlock,  Medlock,  In  re 2123 

Rusbbrooke  v.  Farley   1424 

Russell,  Ex  parte,  Elderton,  In  re    208 

In  re    1751, 1753,  2034 

— —    In  re,  Guest,  Ex  parte  109,613 

In  ref  Russell  v.  Shoolbred...  1106, 1530 

r.  Town  and  County  Bank  1571 

r.  Waterford  and  Limerick  Ry. ...    729 

v.  Watts  675,1965 

Rust  v.  Victoria  Graving  Dock  Co 601 

Ruthin  Ry.,  In  re,  Hughes'  Trustees,  Ex 

parte    1319 

Ryan,/*™  192,961 

v.  Fraser 532 

and  Cavanagh,  In  re 779,  1945 

Ryder,  In  re    1132,1162 

Rye  v.  Hawkes  1422 

Ryley,  In  re,  Official  Receiver,  Ex  parte...    609 

In  re,  Stewart,  Ex  parte 168 

Rymer  v.  De  Rosaz,  De  Rosaz,  In  re 535 

v.  Harpley,  Bourne,  In  re   2046 

Rymill  v.  Wandsworth  District  Board  72 


S. 


S.,  In  re,  Bank  of  Ireland,  Ex  parte...  142,  1001 

S.  (falsely  called  B.)  v.  B 887 

Sachs  v.  Speilroan 1439 

Sadler,  In  re,  Norris,  Ex  parte  1 50 

St.  Agnes,  In  re 693 

St.  Alphege  (Parson),  In  re    1 127 

London  Wall,  In  re 313 

St.  Andrews  Election   718 

St.  Andrew's  Hospital -n.  Shearsmith 1566 

St.  Andries,  The 1687 

St.  Botolph  Estates,  In  re  312 

St.  Croix  v.  Morris    482,  838 

St.  Gabriel,  Fenchurch  v.  Williams  1375 

St.  George's  Estate,  In  re    1457 

St.  George  v.  St.  George    669,  799 

St.  Giles,  Camberwell  c.  Greenwich  Board 

of  Works 1219 

©.Hunt    1220 

St.  Helen's  (Mayor)  r.  Kirkham    866 

Corporation     v.     St.     Helen's 

Colliery  Co 871 

St.  John  the  Evangelist,  In  re  313 

St.  John's,  Haxnp8tead,  v.  Cotton  1220 

v.  Hoopel  1217 

St.  Lawrence  (Overseers)  v.  Kent  JJ...  545, 1072 
St  Leonard,  Shoreditch,  Schools,  In  re  ...    314 

St.  Leonard's  Vestry  v.  Holmes 1217 

St.  Mary's,  Aldermanbury,  In  re   313 


St.  Mary,  Newington,  v.  South  London  Fish 

Market  Co 1214 

St.  Matthew's,  Bethnal  Green,  v.  Perkins...     695 
St  Pancras  Guardians  v.  Norwich  Guar- 
dians   1382 

St.  Saviour's  Rectory  (Trustees)  and  Oyler, 

In  re    700 

St.  Stephen's,  Coleman  Street,  In  re 313 

Salaman,  Ex  parte,  Salaman,  In  re 181,  207 

Salisbury  (Bishop)  v.  Ottley  688 

(Lord)  «.  Nugent   2U14 

Salkeld,  In  re,  Good,  Ex  parte  1 20 

Salm  Kyrburg  v.  Posnanski  66,  1492 

Salmon,  In  re,  Gould,  Eos  parte 1658 

v.  Duncombe  382,1808 

Salt  v.  Edgar  i 1273 

v.  Pym,  Northen's  Estate,  In  re  2018 

Salter  v.  Att.-GenM  Morris,  In  rt  2044 

Salting,  Ex  parte,  Stratton,  In  re 146 

Sampson  and  Wall,  In  re    968 

Sandars,  In  re,  Serjeant,  Ex  parte  86,  206, 1109 
Sandeman  v.  Scottish  Property  Society  ...  1606 
Sanders,  In  re,  Serjeant,  Ex  parte   86,206,1109 

In  re,  Whinney,  Ex  parte 109,  443 

v.  Anderson 1417 

v.  Bromley,  Bromley,  In  re 398 

v.  Davis  1238 

r.  Maclean  1581 

v.  Peek 1407 

r.  Teape  18,  1300, 1864 

Sanderson,  In  re,  Wright  v.  Sanderson    39,  2001 

v.  Berwick-upon-Tweed  (Mayor)  1084 

Sandford-P.  Clarke 1076,  1090, 1101, 1295 

Sandgate  Local  Board  v.  Leney 684 

r.  Pledge     873,1071 

Sandwell,  In  re,  Zerfass,  Ex  parte    121 

Sangster  v.  Cochrane    271 

"Sanitas"  Trade-mark,  In  re  1839,  1849 

Sanitas  Co.  v.  Condy     1856 

Sara.  The    1653 

Sarum  (Bishop  of),  Iu  re    1905 

Satellite,  The     1720 

Saul  v.  Pattinson    1267, 1881 

r.  Wigton  Sanitary  Authority  872 

Saunders  v.  Brading  Harbour  Improvement 

Co.    1796 

v.  Dence    1588 

v.  McConnell,  McConnell,  In  nr      39 

v.  Pawley    1471,1496 

«.  Pitfield  833 

Saunders- Davies,   In  re,  Saunders-Davie* 

v.  Saunders-Davies   2119 

Savage  v.  Payne,  Stamford  (Earl),  In   re  1427 

Savile  v.  Couper 1915 

v,  Teatman,  Drax,  In  re 2036 

Saville,  Ex  parte,  Saville,  In  re    Ill 

In  re,  Beyfus  or  Saville,  Br  parte    111 

Sawyer  v.  Sawyer  1459,1887 

and  Baring's  Contract,  In  re    1944 


TABLE    OF    CASES. 


47 


Sayer,  Ex  parte,  Mansel,  In  re   92 

In  re,  McClellan  v.  Clark    2086 

v.  Hutton    1288 

Sayers,  Ex  parte,   Belfast  Town  Council, 

In  re    2029 

v.  Oollyer     985,  987, 1953 

Saywood  v.  Cross  539 

Scanlan,  In  re   980 

Scantlebury,  Ex  parte,  Guy,  In  re   200 

Scaramanga  v.  Marquand     1672,1708 

Scarborough  v.  Scarborough    2044 

Scarlett  v.  Hanson    1642 

Scatchard  v.  Johnson   1054 

Scharrer,  In  re,  Tilly,  Ex  parte  137,  202 

Scheyer,  Ex  parte,  Wontner,  In  re      1786 

Schmidt's  Trade-mark,  In  re 1848 

Schmitz,  Ex  parte,  Cohen,  In  re  108 

Schneider  v.  Duncan     722 

Schofield  v.  Hincks    123,  1090,  1 107 

v.Solomon    1156 

Scholee,  In  re    1754 

Scholfield  r.  Spooner    951 

Schove  v.  Schmincke    501,  1829 

Schreiber  v.  Dinkel  829 

Schultze  v.  Schultze     920,  1002 

Scholze  v.  Great  Eastern  By 291,  603 

Schumann,  Ex  parte,  Forster  &  Co.,  In  re  441, 

1188 

Scicl una  r.  Stevenson  1689 

Score,  In  re,  Tolman  v.  Score  2057,  2064 

Scotch    Whiskey    Distillers,     Ex  parte, 

Flatau,  In  re   111,113 

Scotney  v.  Lomer  1888,  2042,  2058,  2101 

Scott,  Ex  parte.  Hawke,  In  re  84 

jn  re 1166 

v.  Attorney-General 330, 1030 

v.  Brown  1104,1864 

v.  Great  Clifton  School  Board    1593 

v.  Morley  606,  930,  943,  1803 

v.  Murphy  808 

v.  Pape    678 

—  v.  Sebright      886 

r.  Taylor 1826 

ScoYell  v.  Bevan    1720 

Sea  Insurance  Co.  v.  Hadden  or  Hodden ...  1018 

Seaarv.  Webb  1483 

Seager  v.  White    590,  1056 

Seagrave's  Trust,  In  re 932 

Searle  v.  Choat  772,1457 

Seath  v.Moore  133,1604 

Beaton,  The    1687 

r.  Seaton 968 

Sebright^  Settled  Estates,  In  re   1631 

Secretary  of  State  for  War  and  Denne,  In  re  1767 
Sedgwick,  In  re,  McMurdo,  Ex  parte 108 

v.  Yedras  Mining  Co 1408 

Self-Acting  Sewing  Machine  Co.,  In  re  ...    445 
Bellors  v.  Matlock  Bath  Local  Board  ...  7,  878, 

1313 


Selous   v.  Croydon    Rural    Sanitary   Au- 
thority      768,  1482 

Selwyn  *.  Garfit    1258,1955.1956 

Senhouse  v.  Mawson     209 

Sephton  v.  Bephton  934 

Seraglio,  The 1727 

Serff  r.  Acton  Local  Board  670,  1408, 1483 

Sergeant,  Ex  parte,  Sandars,  In  re  ...  86,  206 

1109 

In  re,  Mertens  v.  Walley  2035 

Seroka  v.  Kattenburg    914,  941 

Serrao  v.  Noel    732 

Seton  v.  Laf one     740,1988 

Seventh  East  Central  Building  Society,  In 

re 421 

Seward  v.  The  Vera  Cruz    1301, 1720, 1808 

Sewell  v.  Burdick  1583,1662 

Seymour  v.  Bridge    1523 

Seyton,  In  re,  Seyton  v.  Satterthwaite  920, 1002 
Shafto  v.  Bolckow,  Vaugban  &  Co.  ...  500, 1407, 

1471 

Shafto's  Trusts,  In  re  1913 

Shakespear,  In  re,  Deakin  v.  Lakin 926 

Shannon  (Earl)  v.  Good 2061 

Shapcott  v.  Chappell 559 

Sharp,  Ex  parte,  Walker,  In  re    84 

v.  Fowle 1096 

v.  McHenry...  175, 196,  235,  236,  255, 256 

Sharpe  «.  Wakefield 1051 

Shaw  v.  Aitken    1646,1663 

v.Benson 351 

v.  Kirby 1641,1643 

v.  Lomas  1095 

v.  Port  Phillip  Gold  Mining  Co.  394,  1516 

v.Simmons 352 

v.  Smith  644,  655,  1449 

and  the  Birmingham  Corporation,  In 

re 60 

Shead,  Ex  parte,  Mundy,  In  re 207 

;  Sheffield  (Earl)  v.  London   Joint  Stock 

Bank 76 

Building  Society,  In  re,  Watson, 

Ex  parte    269,734 

Waterworks  Co.  v.  Bingham 872, 

1964 

and  South  Yorkshire  Permanent 

Building  Society  v.  Harrison. . .  228, 

1238 
Sheldon,  Jn  re,  Nixon  v.  Sheldon 1817 

and  Kemble,  In  re  2060 

Shelley  v.  Bethell 666, 1823 

Shenstone  v.  Brock,  Richards,  In  re 1870 

Sheolin  v.  M*Grane  1788 

Shepherd,  In  re,  Whitehaven  Mutual  In- 
surance Society,  Ex  parte  ...   149, 

150 

v.  Folland  525,1184 

v.  Norwich  (Mayor)    1112,1122 

v.  Pulbrook 231 


48 


TABLE    OF    CASES. 


Sheppard,  Ex  parte,  Parkers,  In  re 147 

r.  Gilmore 266,  1470,  1952 

v.  Scinde,  Punjaub,  and    Delhi 

Ry 430 

Sheppy  Union  t\  Elmley  Overseers  1984 

Sherbro,  The  1667 

Sheridan.  In  re 2067 

Sherrington's  case 452 

Sherry,  In  re,  London  and  County  Banking 

Co.  v.  Terry  80,1360,1528 

Shield,  In  re,  Pethybridge  v.  Burrow  1869 

Shiers  i\  Ashworth,  Jackson,  In  re   2037 

Shillito  v.  Hobson,  Richardson,  In  re  1243 

Shilson,  Ex  parte,  Cock,  In  re 121 

Shingler  r.  Smith 214 

Shirley,  In  re,  Mackay,  Ex  parte  104,  444 

Shoolbred,  Ex  parte,  Angell,  In  re 199 

Shoreditch  (Hoxton  Division)  Election,  In 

re,  Walker,  Ex  parte  719 

Shrapnel  v.  Laing     520 

Shroder  r.  Myers  1466 

Shrubb  v.  Lee 1108 

Shuldham  v.  Royal  National  Lifeboat  In- 
stitution, Richardson,  In  re    306, 1868 

Shumm  r.  Dixon  529 

Shurly,  Ex  parte,  Shurly,  In  re    115 

Shurmur  v.  Sedgwick  828 

Shurrock  v.  Lillie 67 

Shute  v.  Hogge 949 

Sibeth,  Ex  parte,  Sibeth,  In  re  131,  923 

Sibley  v.  Higgs 240 

Siddall,  In  re 352 

Siddell  v.  Vickers 1340 

Siegenberg  v.  Metropolitan  District  Ry.  ...  1116 

Silva's  Trusts,  In  re 1163 

Silverton  «.  Marriott    1296 

Simes  v.  Simes,  Allen,  In  re     1487, 1918 

Simkin  v.  London  and  North  Western  Ry.  1292 
Simmondfl,  Ex  parte,  Carnac,  In  re  ...  95, 1232 
Simmons,  In  re  57,1793 

v.  Henchy 1642 

Simonds  v.  Blackheath  J  J 1053 

Simpson's  Claim,  Cunningham  &  Co.,  In  re  1513 
Simpson  v.  Beard,  Beard,  In  re 2070 

v.  Charing  Cross  Bank     254 

v.  Shaw  300,  1204 

Sinclair,  In  re,  Chaplin,  Ex  parte   ...   100, 144, 

166,  826 

In  re,  Payne,  Ex  parte  168 

Sinclair's    Settlement,   In    re,  Crump    t\ 

Leicester 492 

Sinclair's  Trust,  In  re 304 

Singer  v.  Hasson     1341,1808 

Singleton,  Ex  parte,  Johnstone,  In  re 89 

v.  Knight 325, 1328 

Sinidino  v.  Kitchen    ^  46,1584 

Sion  College,  In  re,  London  (Mayor)  Ex 

parte   1130 

Sissling,  In  re,  Fenton,  Ex  parte 151 


Sitwell,  Ex  parte,  Drury  Lowe's  Marriage 

Settlement,  In  re 1574 

Skinner  v.  City  of  London  Marine  Insur- 
ance Corporation    390, 603 

v.  Skinner    980 

v.  Weguelin 1526 

Skipper  v.  Skipper,  Palmer^  In  re 1472 

Skipwith  v.  Great  Western  Ry 287 

Slack  v.  Parker 1328 

Slater  i\  Burnley  (Mayor)  1969 

? v,  slater 1429,  1745 

Slattery  v.  Ball.  Ball,  In  re 2047 

f?.  Naylor 281,319 

Sly  v.  Blake,  Johnson,  In  re .802,  1145 

Small,  Ike  parte,  Small,  In  re 182 

v.  Hedgely,  Hedgely,  In  re 793,  929 

v.  Smith 278 

Smailey,  In  re,  Smalley  «.  Smalley  2065 

Smallpage  and  Brandon's  Case    ...220,  421,  1037 

Smalpage  v.  Tonge    1412 

Smart,  In  goods  of    1994 

Smeed,  In  re,  Archer  v.  Prall 972 

Smethurstf.  Hastings 1875.  1958 

Smiles  v.  Crooke    1565 

Smith,  Ex  parte,  Hepburn,  In  re 145, 1138 

Ex  parte,    Homer    District    Con- 

solidated Gold  Mines,  In  re 382 

Ex  parte,  Kells  Union,  In  re. 1 1 25 

Ex  parte,  Knight,  Inre 152 

Ex  parte,  Staniar,  In  re. 171 

Inre 1761 

In  re,  Brown,  Ex  parte  ...71,  94, 152,  613 

In  re,  Chapman  r.  Wood. 938 

In  re,  Day  v.  Bonaini 1949 

In  re,  Edwards,  Ex  parte. 49,  142, 193 

In  re,  Fox,  Ex  parte 95, 140 

In  re,  Hannington  v.  True  2112 

In  re,  Hooper  v.  Smith 31 

In  re,  Lord  v.  Hay  ward  2085 

In  re,  Rigg  v. :  Hughes    43,2015,2016 

In  re,  Smith  v.  Went  664 

and  Stott,  In  re     1944 

v.  Acock 1108 

v.  Barham  1377 

v.  Buchan  1508 

v.  Butler 1071.1863 

u.  Carter 769,1456 

v.  Chadwick  348,821 

v.  Critchfield 1039,1042 

tr.  Cropper 734, 1346, 1351 

i?.  Cuninghame 2082 

v.  Darlow 25, 1043, 1044 

v.    Dart 1475,1665 

v.  Davies 30,1268,1451 

v.  Drummond    1664 

v.  Edwards 1422.  V® 

v.  Gill,  GUI,  In  re 1487, 1910, 191? 

v.  Gordon   - 3 

v.  Hargrove    1473 


TABLE    OF    CASES. 


49 


Smith  t?.  Hunt    833 

v.  Jobson    2023 

v.  Land  and  House  Property  Cor- 

poration   39,  824,  1934 

r.  Maclure 1238 

v.  Manchester  (Duke) 357 

v.  Martin,  Martin,  In  re 2047 

v.  Midland  Railway 290 

v.  Millidge,  Humphries,  In  re    2024 

uOlding 1271 

v,  Pearman 1273 

v.  Sibthorpe,  Jackson,  In  re  ...1236,  1821 

v.  Smith   891,908,1207 

v.  Spence,  Wheatley,  In  re 703,  923 

v.  Tregarthen  602,1671 

v.  Went,  Smith,  In  re 654 

v.  Whitlock    „ 927 

v.Wills  533 

Smith's  Estate,  In  re,  Clements  v.  Ward. .  .303, 940, 

1808, 1992 

Smithwick  v.  Hayden  2082 

Smyth,  In  re 1903 

8mythe  v.Smythe  457,  900, 1491 

Snell  v.  Heighten    230, 1583 

Snelling  v.  Pulling 523,544 

Sneyd,  In  re,  Fewings,  Ex  parte  188,  1023, 

1061, 1279 

Snow*.  Hill 835 

v.  Whitehead  1953, 1973 

Soanes,  Ex  parte,  Walker,  In  re  197,  203 

Societe  Anonyme  des  Manufactures  de 
Glaces  v.  Tilghman's  Patent 
Sand  Blast    Co 1352,  1832 

Francaise  des  Asphaltes  v.  Farrell    681 

Generate  de  Paris  v.  Dreyfus    1411 

r.  Geen     176 

v.  Tramways  Union 

Co 1308 

v.  Walker     397 

Solicitor,  In  re  .* 1492,  1783 

In  re,  Dudley,  Ex  parte 1498 

to  the  Treasury  v.  White 759 

Solis,  The 1722 

Solomon  v.  Davis  221 

Solway,  The   743,1725 

Somerset  (Duke),/*  re,  Thynne  v.&t.  Maur 

941,  981,  2116 

t\  Hart  1054 

Somenrille,  In  re,  Downes  v.  Somerville  ...      42 

v.  Schembri  885, 1881 

Sonnenschein  v.  Barnard 540 

Soper  v.  Arnold 1951 

Souch  v.  Cowley,  Cowley,  In  re 2108,  2128 

Soutar's  Policy  Trust,  In  re 920, 1001 

South  City  Market  Co.,  In  re,  Bergin,  Ex 

parte    1126 

Dublin  Union  v.  Jones. 526, 1071 

Durham  Brewery  Co.,  In  re   888 

London  Fish  Market  Co.,  In  re 411 


South  Shropshire  Election,  In  re  720 

Staffordshire    Waterworks    Co.    v. 

Mason 1961 

Staffordshire    Waterworks    Co.    v. 

Stone  1070 

Southend  Waterworks  Co.  v.  Howard 1967 

Southampton  Guardians  v.  Bell 1368, 1754 

Southport  Banking  Co.,  In  re,  Fisher's  case, 

Sherrington's  case   4  52 

Banking  Co.  v.  Thompson 1239 

Spackman  v.  Plumstead  Board  of  Works ...  1210 

Spamer,  Ex  parte,  Voght,  In  re    151 

Spearman,  The  1690 

Spedding  t?.  Fitzpatrick  1438 

Speer, /are    1844 

Speers  v.  Daggers 561, 1040 

Speight,  In  re,  Brooks,  Ex  parte  208 

v.  Gaunt 1889 

Speller  v.  Bristol  Steam  Navigation  Co.  ...  1460, 

1461 

Spencer,  In  re,  Hart  v.  M anston    201 6 

In  re,  Thomas  v.  Spencer 988 

v.  Ancoate  Vale  Rubber  Co 88 

t?.  Brighouse,  Williams,  In  re  ...  2046, 

2122 
Spencer's  Trade-mark,  In  re  1848 

Will,  In  re   2020,2092 

Spencer-Bell  to  the  London    and   South 

Western  Ry.  1028,1124 

Spero  Expecto,  The 1723 

Spettigue's  Trusts,  In  re 536 

Spittall*.  Brook. 709 

Squire  v.  Arnison 800 

Stafford  v.  Stafford,  Price,  In  re   989, 1992 

Stafford's  Charity,  In  re 1181 

Staines,  In  re,  Staines  v.  Staines  1488 

Stain  ton,  In  re,  Board  of  Trade,  Ex  parte,  202 
Stamford  (Earl),  In  re,  Savage  v.  Payne  ..  1427 

Stamford's  (Lord)  Estate,  In  re    1687 

Standing  v.  Bowring 18, 888 

Stanford,  Ex  parte,  Barber,  In  re    237,  288,  240 

r.  Roberts 1748, 1765 

v.  Stanford    2045 

Stanger,  In  re,  Geisel,  Ex  parte   98,118 

Stanhope  v.  Stanhope  1,896 

Staniar,  In  re,  Smith,  Ex  parte    171 

v.Evans 1490,1744,1781,1897 

Stanmore,  The  1688 

Stanton  v.  Lambert,  Lambert,  In  re    913, 

1577,  2120 

Star  of  Persia,  The   1711 

Stedman,  In  re,  Coombe  v.  Vincent 1322 

v.  Dunster,  Hartley,  In  re    2079 

Steed*  Ex  parte,  Day,  In  re  208 

Steedman  v.  Hakin  41,1494 

Steele,  In  re,  Gold  v.  Brennan   1908 

v.  Sutton  Gas  Co 364 

Stein*,  dope 1515 

Stenning'  Trusts,  In  re    1901 


5o 


TABLE    OF    CASES. 


S  tenson,  In  re,  Merriman,  Ex  pa  He 151 

Stephen  v.  Cunningham,  Hamlet,  In  re  ...  2047 
Stephens,  In  re,  Jones,  Ex  parte  203 

if.  Harris  1678 

v.  London  and    South  Western 

Ry. 294 

v.  Stephens  952 

Stephenson,  Ex  parte,  Newtownards  Gas 

Co.,  In  re 480 

In  re,  Official  Receiver,  Ex 

parte 148 

v.Stephenson 1997 

Stevens,  Ex  parte,  Whicher,  In  re   137 

In  re    1820 

v.  Barnet  Gas  and  Water  Co. 1966 

v.  Biller  1526 

v.  Bishop 701,1571 

v.  Great  Western  Ry 290 

v.  Metropolitan  District  Ry.    544, 1544 

v.  Thompson,  Thompson,  In  re  ...   942, 

1448 
Steward  v.  North  Metropolitan  Tramways 

Co 1502 

Stewart,  Ex  parte,  Ryley,  In  re  168 

-  —     «.  Fletcher 937 

v.  Merchant  Marine  Insurance  Co.  1015 

r.  West  Derby  Burial  Board    698 

Stewartstown  Loan  Co.  v.  Daly 1423 

Stimpson  v.  Wood 1302 

Stock  *.  Inglis   1009,1581 

Stocken,  In  re,  Jones  v.  Hawkins 801 

Stockton,  In  re,  Gibson,  Ex  parte 203 

Stoer,  In  re 760,884 

Stogdon,  In  re,  Baker,  Ex  parte   1757 

Stokes  v.  Stokes 651 

Stolworthy  v.  Powell    548 

Stone,  In  re,  Nicholson,  Ex  parte 85, 608 

v.  Att.-  Gen.,  Sutton,  In  re 303, 2068 

v.  Smith  1473,1800 

Stone's  Trusts,  In  re 1326 

Stoneham  r.  Ocean,  Railway,  and  General 

Accident  Insurance  Co 996 

Stonoru.  Fowle 608 

Stonor's  Trusts,  In  re  946 

Storer,  In  re  1777 

Storey  v.  Storey 893 

Stormcock,  The 1694,1714 

Stote8bury  v.  St.  Giles,  Camberwell 1220 

Stott  v.  Fairlamb 216 

v.Milne 1895 

Strand,  In  re,  Board  of  Trade,  Ex  parte . . .  200 
Strangways,  In  re,  Hickley  v.  Strangways  1622 
Strathmore  (Earl),  Ex  parte,  Riddell,  In 

re 109 

v.  Vane,  Bowes,  In  re  78, 787 

Stratton,  In  re,  Salting,  Ex  parte 1 46 

Strauss  v.  County  Hotel  and  Wine  Co.  993, 1294 
Strawbridge,  Ex  parte,  Hickman,  In  re  ...     94, 

175, 176 


Streatham  Estates  Co.  r.   Public  Works 

Commissioners  1123 

Street  v.  Crump 1509 

v.  Union  Bank  of  Spain  and  Eng- 

land        6,  991, 1829 

Stribling  v.  Halse 7«6 

Strick,  In  re,  Martin,  Ex  parte 114 

if.  Swansea  Tin  Plate  Co.    1860 

Strickland  v.  Symons  1892 

t>.  Weldon   4,316,476,1398 

Strike*.  Collins 1184 

Strong,  In  re 34,  610, 1741, 1742 

Stroud  v.  Austin    601 

Strugnell  r.  Strugnell 983,1322 

Stuart,  In  goods  of    1998 

v.  BalkisCo 760,761 

v.  Wrey,  Wrey,  In  re  2044 

Stubbs  v.  Hilditch 1972 

Stuchbery  v.  Spencer   1046, 1560 

Studdert  v.  Grosvenor  357 

Studds  v.  Watson 471 

Stumore  v.  Breen  1652,1659 

Sturgis  (British)  Motor  Power  Syndicate, 

In  re    415 

Styles  v.  New  York  Life  Insurance  Co.   ...  1004, 

1568 

Suckling  v.  Gabb  1447 

Sudeley's  (Lord)  Settled  Estates,  In  re.  ...  1636 
Suffield  and  Watts,  In  re,  Brown,  Ex  parte 

85,  1396, 1790 

Suffolk  v.  Lawrence 1486,1900 

Sugg  v.  Bray 751 

Sullivan  v.  O'Connor    1298 

Sully,  Ex  paHe,  Wallis,  In  re    134 

Sully's  case 403,1798 

Sulzberger,  Ex  parte,  Sulzberger,  In  re    183 

Summers  v.  Moorhouse 509 

Summerville,  In  re  1161 

Sunderland     32nd     Universal      Building 

Society,  In  re,  Jackson.  Ex  parte 278 

Sunniside,  The  1709 

Suse,  In  re,  Dever,  Ex  parte 128, 130, 135. 

467,  921,  995, 1003, 1035 

Sutdiffet?.  Wood  1434 

Sutherland,  The 1679 

Sutton,  In  re,  Stone  r.  Att-Gen 303,2068 

(Parish  of)  to  Church    314, 341 

Svensden  v.  Wallace 534,  1016r  1716 

Swabey  v.  Dovey  657 

Swain  v.  Ayres  1103 

v.  Follows  560 

Swansea  Co-operative  Building  Society  r. 

Davies 553 

Sweet  v.  Combley 1271 

Swift  v.  Pannell 125,258 

Swinburn  v.Ainslie,  Ainslie,  In  re  ...  790, 1824 

v.  MUburn    1069 

Swinburne,  In  re,  Swinburne  v.  Pitt  2099, 2110 
Swindell  v.  Bulkeley 800 


TABLE    OF    CASES. 


Si 


Swire,  In  re,  Mellor  v.  Swire 1481 

Syer  v.  Gladstone 2110 

Sykes,  In  re,  Sykes  v.  Sykes  1772 

v.  Sacerdoti    1442 

Byrnes  v.  Appelbe 1997 

Symington  v.  Footman    1831 

Symondsr.  City  Bank 1508 

v.  Hallett  941 

v.  Incorporated  Law  Society 1793 

Symons,  In  re,  Betts  t\  Betts 1400 

v.  Leaker 672 


T. 


T.  v.  T 1029 

Tabor  v.  Prentice  1997 

Tacon  v.  National  Standard  Investment  Co.  1507 

Tagartt?.  Marcus 1500, 1514 

Tailby  v.  Official  Receiver 242 

Tait  v.  Mitchell 1643 

Talbott,  In  re,  King  v.  Chick 808 

Tallerman,  In  re,  Rooney,  Ex  parte 151 

Tambracherry  Estates  Co.,  In  re  379 

Tamvaco*.  Timothy 287 

Tandy,  In  re,  Tandy  v.  Tandy    2027 

Tanner,  In  re 12,  970 

^.Carter 709,1923 

v.  Scrivener 688 

Taplin  v.  Taplin    897,1474 

Tapling  v.  Weston 1097 

Tarleton  v.  Bruton,  Roberts,  In  re 2049 

Tarn  v.  Commercial  Banking  Co.  of  Sydney   798, 

1436 

^.Turner  1279 

Tarratt,  In  re 1163 

Tartt,  Ike  parte 894 

Tasmania,  The  1694,1713,1714 

Tate  v.  Hysiop 1013, 1310 

Tattersall  v.  National  Steamship  Co....  288, 1662 

Tatum  v.  Evans 1534 

Taurine  Company,  In  re 454 

Tay*.  Bignell    666 

Taylor,  Ex  parte,  Goldsmid,  In  re    ...  163, 1887 

Ex  parte,  Lacey,  In  re 106 

In  re,  Board  of  Trade,  Ex  parte ...      89 

In  re,  Cloak  v.  Hammond  ...  2020,  2033 

In  re,  Dyer,  Ex  parte    126 

In  re,  lllsley  v.  Randall 2127 

In  re,  Martin  v.  Freeman  ...  309,  2082, 

2113 

In  re,  Official  Receiver,  Ex  parte. . .      89 

In  re,  Taylor  *.  Ley  2037 

In  re,  Taylor  v.  Taylor  1999 

In  re,  Whitby  v.  Highton 1992 

«.  Bank  of  New  South  Wales  1533 

v.  Blakelock  1888,1920 

v.  Ley,  Taylor,  In  re 2037 


Taylor  *.  Mostyn  1226, 1264, 1269, 1270 

v.  Neate 1337 

v,  Pendleton  Overseers  1369 

v.  Pilsen  Joel  and  General  Electric 

Light  Co 406 

«.  Poncia  1627 

v.  Smetten    837,1157 

v.  Taylor,  Taylor,  In  re 1999 

v.  Timson 694 

Teale,  In  re,  Teale  v.  Teale 2043 

Tearle  v.  Edols 317 

Tempest  v.  Camoys  (Lord) 1917 

Temple  v.  Thring 808,880,1820 

Bar,  The 1468,1724 

Tench's  Trusts,  In  re    925 

Tench  v.  Eykyn 1460 

Tennant  v.  Cross  2016 

v.  Howatson  337 

Tennent,  In  re,  Grimwade,  Ex  parte...  109,  443 

v.  Welch 935 

Terry  and  White,  In  re  1929 

v.  Dubois 1457 


Tetley  v.  Griffith  930,1507 

Teuliere  v.  St.  Mary  Abbott's  Vestry   1214 

Tew  v.  Newbold-on-Avon  District  School 

Board  265 

Thackrah,  In  re,  Hughes,  Ex  parte 127 

Thackwray  and  Young,  In  re 1134, 1938 

Thames  Conservator  v.  Inland  Revenue 

Commissioners  1559 

and  Mersey  Marine  Insurance  Co. 

^.Hamilton    1012 

Thanemore  Steamship  v.  Thompson 1418 

Tharel's  Trusts,  In  re  2122 

Thatcher's  Trusts,  In  re 972 

Theodore  H.  Rand,  The   1682 

Thetford,  The 1693 

Theys,  Ex  parte,  Milan  Tramways  Co.,  In 

re  63,426,1500 

Thomas,  Ex  parte,  Trotter,  In  re   119,  596 

In  re,  Commissioners  of  Woods 

and  Forests,  Ex  parte  119,  596 

In  re,  Comptroller,  Ex  parte 93 

In  re,  Poppleton,  Ex  parte    353 

In  re,  Thomas  v.  Howell   ...  493,919, 

1927 

In  re,  Tstradfodwg  Local  Board, 

Ex  parte  140,873 

v.  Exeter  Flying  Post  Co 1474 

v.  Hamilton  (Duchess    Dowager)  1413 

1?.  Howell,  Thomas,  In  re  ...  493,  919, 

1927 

v.  Kelly 26,241,1043 

v.  Mirehouse  1093 

v.  Owen  672 

v.  Peek 546 

v.  Quartermaine 1197 

v.Sherwood 322 

r.  Spencer,  Spencer,  In  re 93$ 

4  O 


52 


TABLE    OF    CASES. 


Thomas  v.  Tomer 604 

Thomas  Allen,  The   1711 

Thompson,  In  re 1751,1755 

In  re,  Machell  v.  Newman 2031 

In  re,  Stevens  v.  Thompson  942, 1448 

In  goods  of 744,  2015 

and  Curzon,  In  re 925 

to  Curaon,  In  re 1932,  2054 

v.  Royal  Mail  Steam  Packet  Co.    287 

V.Thompson 899 

v.Wright   1040 

Thompson's  Will,  In  re 1633,  2075 

Thomson  v.  Weems  995 

Thorman  v.  Burt 1659,  1660 

Thornber,  Ex  parte.  Barlow,  In  re  1 73 

Thorniley,  In  re,  Woolley  v.  Thorniley 1466 

Thornton  v.  Thornton 1431 

Thorp  v.  Dakin    178,737 

Thorpe  v.  Cregeen 245 

Three  Towns  Banking  Co.  v.  Maddever, 

Maddever,  In  re   827, 1073 

Throssel  v.  Marsh  285 

Throssell  v.  Handyside 1294 

Thurston,  In  re,  Thurston  v.  Evans  2103 

Thwaites  v.  Wilding 1096 

Thyatira,  The 729, 1699, 1727, 1728 

Thynne  v.  St.  Maur,  Somerset  (Duke),  In  re  941, 

981,  2116 
Tickle,  In  re,  Leathersellers*  Co.,  Ex  parte  142, 

193, 1101 

Tidswell,  Ex  parte,  Tidswell,  In  re  144 

Tighe  v.  Featherstonhaugh 2065 

Tillet,  In  re,  Field  v.  Lydall  806, 1498 

Tillett  v.  Nixon    1268, 1454 

Tilly,  Ex  parte,  Scharrer,  In  re  187,  202 

Timson  v.  Wilson  1468 

Tinnuchi  v.  Smart 611 

Tippett,  Ex  parte,  Tippett,  In  re 82 

and  Newbould,  In  re 937, 1940 

Tischler  v.  Apthorpe 1569 

Tisdall  «.  Richardson    533 

Titian  Steamship  Co.,  In  re 417 

Tiverton  and  North  Devon  Ry.  v.  Loosemore  1116 

Tod-Heatley  v.  Benham  1087 

Todd,  Ex  parte,  Ashcroft,  In  re    160, 1807, 1808 

v.  Robinson  876,  877, 1362 

Tolhausen  v.  Davies 1298 

Tolman  v.  Score,  Score,  In  re 2057,  2064 

Tollemache,  In  re,  Anderson,  Ex  parte  149,747 

In  re,  Bonham,  Ex  parte  149 

In  re,  Edwards,  Ex  parte     149,  745 

In  re,  Revell,  Ex  parte 149,  746 

TomkJnson  v.  South-Eastern  Ry 406, 1506 

Tomlin  Patent  Horse  Shoe  Co.,  In  re  412 

Tomlinson  v.  Ashworth    1187 

v.  Gilby    393,2010 

v.  Land  and  Finance  Corporation  1042 

Tompson  v.  Dashwood 633 

Tone  v.  Preston 685 


Tonsley  v.  Heifer  1468 

Toogood's  Trusts,  In  re  1430, 1495 

Topham  v.  Booth  1151 

v.  Greenside  Glazed  Fire  Brick  Co.  227, 

369 

Topley  v.  Corsbie  253 

Toppin  v.  Buckerfield  546 

Torish  v.  Clark 704,  709 

Torquay  Market  Co.  r.  Burridge  1183 

Tosh  v.  North  British  Building  Society    ...    279 

Totness  Union  t?.  Cardiff  Union 1385 

Tottenham  v.  Swansea  Zinc  Ore  Co.    423,  820, 

1239 

Toulmin  v.  Millar 22, 1476, 1521 

Toutt's  Will,  In  re,  Martyn,  In  re 1908 

Toward,  In  re,  Moss,  Ex  parte  165 

Tower  Ward  Schools  Trustees,  Ex  parte, 

Finnis  to  Forbes    314 

Towgood  v.  Pirie   1840 

Townley,  In  re,  Townley  r.  Townley   2068 

Townsend,  In  re,  Clark  or  Parsons,  Ex 

parte 225,237 

In  re,  Townsend  r.  Townsend  2004, 

2052 

Towse  v.  Loveridge  1461 

Tozier  v.  Hawkins  1413,1415 

Trafford  v.  Blanc,  Trufort,  In  re    1026, 1034, 

1039. 1502 

v.  Maconochie,  Moore,  In  re  2078 

Tranter  v.  Lancashire  Justices    1050 

Treadwell  v.  London  and  South- Western 

Ry 1112 

Tredegar  Iron  and  Coal  Co.  v.  Gielgud 601 

Treherne  v.  Dale   67 

Trench,  In  re,  Brandon,  Ex  parte 97 

Trenchard's  Will,  In  re,  Hume,  In  re  1919 

Tress  t>.  Tress 889 

Trevelyan  v.  Trevelyan    1946 

Trevor  v.  Whitworth 384 

Tricks,  In  re,  Charles,  Ex  parte    205 

Trinder  v.  Raynor 234 

Tritton  v.  Bankart    1087, 1459, 1462 

Trott  v.  Buchanan 794,2117 

Trotter,  In  re,  Thomas,  Ex  parte 1 1 9, 596 

Troward  v.  Troward 896 

Trower  v.  Law  Life  Assurance  Society 1467 

Trufort,  In  re,  Trafford  v.  Blanc    ...   1026, 1034, 

1039. 1503 
Trustee,  Ex  parte,  Cox,  In  re 139 

Ex  parte,  Lowndes,  In  re  159, 194, 983 

Ex  parte,  Walsh,  7*  re 99 

Ex  parte,  Whitaker,  7*  w  ...    119,194 

Ex  parte,  Yapp,  In  re 196 

Trustees  and  Agency  Co.  v.  Short 1149 

Trye  «.  Sullivan,  Young,  In  re   939, 1992, 2085 
Try  on  v.  National  Provident  Institution ...  1404 

Tuck  v.  Priester 501 

Tucker,  In  re,  Bowchier  v.  Gordon  2012 

In  re,  Emanuel  v.  Parfitt 


TABLE    OF    CASES. 


53 


Tucker  v.  Bennett     624, 963 

v.  CottereU  628,1398 

v.  Collinson 628, 1398 

v.  Linger  1078 

Tuckett 'b  Trusts,  Inre 1876 

Tudball  v.  Medlicott 1891, 2056 

Tuer's  Will,  In  re 1163 

Tufdnell  v.  Nicholls 1272 

Tuff,  In  re,  Nottingham,  Ex  parte  144 

Tufnell  &  Ponsonby's  case  391 

Tugwell,  Inre  492,1126,1158 

Tuke  v.  Gilbert,  Martin,  In  re   2040 

Tunbridge  Highway  Board  v.  Sevenoaks 

Highway  Board 1981 

Tunnel  Mining  Co.,  In  re,  Pool's  case  446 

Tunnicliffe  v.  Birkdale  Overseers  1 373 

Turcan,  In  re 947,998 

Turgot,  The 1654, 1655 

Turnbull  v.  Forman 926 

Turner,  In  re,  Glenister  v.  Harding  ...    744, 748 

In  re,  Turner  v.  Turner. 11, 813 

In  goods  of  134,2011 

v.  Culpan 236,253 

v.  Hellard,  Harrison,  In  re  2017 

u.Hockey 1589 

v.  Nicholson,  Pickard,  In  re    1162, 1323 

^.Thompson    1029 

v.  Turner,  Turner,  In  re    11,813 

Turner's  Settled  Estates,  In  re  2100 

Tumour,  In  goods  of    2004 

Tuxquand,  Ex  parte,  Parkers,  Inre ...  121, 126, 

232 

v.  Board  of  Trade  89 

Tutherv.  Caralampi 630,1422 

Tweedie  and  Miles,  In  re    1882 

Tweedy,  Inre    1910 

Tyars  v.  Alsop    1739 

Tyler  v.  London  and  South  Western  By. ...   594, 

1365, 1865 
Tyne  Boiler  Works  Co.  v.  Longbenton  Over- 
seers   1371 

v.Tynemouth  Union  1371 

Tynemonth  Union  v.  Backworth  Overseers  1379 


U. 


Ullee,  In  re    979 

Ulysses,  Cargo,  Ex   1706 

Undaunted,  The 1713 

Underbank    Mills    Cotton    Spinning   and 

Manufacturing  Co.,  Inre    367 

Underhay  v.  Read 1262 

Underhill,  In  re,  Budden,  Ex  parte 198 

Ulster  Land  Co.,  Inre 442 

Permanent    Building    Society    v. 

Glenton 272,  1085,1244 


Union  Bank  of  London  v.  Kent 1249, 1252 

v.  Munster  ...  614, 1799 

of  Scotland  v.  National  Bank 

of  Scotland 1257,1605 

Union  Electrical  Power  and  Light  Co.  v. 

Electrical  Storage  Co 1355 

Steamship  Co.  of  New  Zealand  v. 

Melbourne  Harbour  Trust 8,  321 , 

1805, 1810 
United  Horse-Shoe  and  Nail  Co.  v.  Stewart  1849 

Kingdom  Mutual  Steamship  Assur- 

ance Association  v.  Nevill 1020 

Land  Co.  v.  Tottenham  Local  Board  865, 

1975 

Service,  The 464,1713 

Stock  Exchange,  In  re  415 

In  re,  Philp,  Ex 

parte    416 

Telephone  Co.  v.  Bassano 35, 189 

v.Dale    ...    66,988,1344 

o.Donohoe 1478 

v.  London  and  Globe 

Telephone  &  Main- 
tenance Co 1344 

v.  Sharpies 1843 

r.  Walker  1349 

Upton  u.  Brown 1616 

Urquhart  v.  Butterfleld 211,  599,  743, 1030 

Utting  v.  Berney  1171 

Uzielli  v.  Boston  Marine  Insurance  Co.   ...  1017' 


V. 


Valdez'  Trusts,  Inre 2030 

Yallance,  In  re,  Limehouse  Board  of  Works, 

Ex  parte 748 

In  re,  Yallance  v.  Blagden 483 

- —     v.  Falle 5, 1361,  1657, 1811 

Yan  Dozer's  Trade-mark,  In  re 1839, 1842 

Yanderhaege,  In  re,  Izard,  Ex  parte.,.  152,  206 

Vardon's  Trusts,  In  re 30,  703,  961, 1901 

Yaucher  v.  Solicitor  to  the  Treasury,  Grove, 

In  re   1026, 1031 

Yaughan,  Ex  parte,  Riddeough,  Inre...  136, 165 

In  re,  Yaughan  v.  Thomas 303 

Vavasour,  In  re 1158 

Yeale  v.  Automatic  Boiler  Feeder  Co 1408 

Yenkata    Narasimha    Row    tf.    Court    of 

Wards 340 

Vera  Cruz,  The 39,  617, 1288, 1703, 1730 

Verdi,  Ex  parte,  Hinks,  Inre 142 

Verney  v.  Thomas 1421 

Vernon  v.  Croft 1429 

*.  Hallam 486,844 

Ewens,  &  Co., Inre 746, 1250, 1872 

Vibert  v.  Eastern  Telegraph  Co 1187 

4  C  2 


54 


TABLE    OF    OASES. 


Vicat,  Inre 1907 

Vickers,  Ex  parte,  British  Burmah  Lead 

Co.,  Inre    344 

In  re,  Vickers  v.  Vickers 2090 

Victor  Covacevich,  The   1449, 1734 

Victoria,  The 1702,1720 

Victorian  Railway  Commissioners  v.  Coultas  600, 

1303 

Vincent  v.  Vincent   478 

Vindobala,  The  1649 

Viney  v.  Bignold  50, 1006 

v.  Norwich  Union 60, 1006 

Vint  v.  Hudspeth 27, 142, 188,  915, 1476 

Vivian  &  Co.,  In  re,West  African  Telegraph 

Co.,  Inre 379 

Vivienne,  The 1651 

Voght,  In  re,  Spamer,  Ex  parte 1 51 

Voinet  v.  Barrett  1039 

Vollum  v.  Reyett,  Youngs,  In  re  ...29,  804, 1480 

Von  Brockdorff  v.  Malcolm 2096,  2102 

Vowles,  In  re,  O'Donoghue  v.  Vowles 812 

Vyseu.  Brown 69 


W. 


W.  A.  Scholten,The 1410, 1721 

Wade*.  Keefe  982,1743 

t?.  Wilson,  Bentley,  Inre 1621 ,  2062 

Wadham  v.  North-Eastern  By 1119 

Wadsworth,  In  re,  Rhodes  v.  Sugden  ...     1788, 

1789, 1790 

Wagg v.  Shand, Johnson,  Inre 806 

Wagstaff  v.  Clinton 1089 

v.  Shorthorn  Dairy  Co 601 

Wait,  In  re,  Workman  v.  Petgrave  2096 

Waiter  Morland 906,921 

Wake  v.  Sheffield  (Mayor) 870 

Wakefield  v.  Maffet 958 

Wakeham,  In  re,  Gliddon,  Ex  parte    ?46 

Wakelin  v.  London  and    South- Western 

Ry 1289 

Walcott  «.  Lyons  1406, 1876 

Wales  v.  Thomas  1229 

Walford,  In  re,  Walford  v.  Walford     1261, 1690 

Walhampton  Estate,  In  re 1248, 1613 

Walkden's  Aerated  Waters  Co.'s  Applica- 
tion, In  re  1846 

Walker,  Ex  parte,  Hoxton  Election,  In  re    719 

In  re,  Barter,  Ex  parte   134, 263 

In  re,  Gould  or  Goold,  Ex  parte...   123, 

192, 193, 1083, 1101, 1103 

In  re,  Jackson,  In  re 764, 883 

In  re,  Nickoll,  Ex  parte  98, 206 

In  re,  Sharp,  Ex  parte 84 

In  re,  Soanes,  Ex  parte    1 97, 203 

In  re,  Walker  v.  Walker  2084 

and  Beckenham  Local  Board,  In  re    874 


Walker  and  Hacking,  In  re  385 

and  Hughes'  Contract,  Inre  1912 

v.  Appach,  Hobson,  Inre...    1819,2125 

v.  Bradford  Old  Bank  62 

v.  Clarke 1356 

v.  Dodds  562 

v.  Gammage,  Natt,  Inre 795 

v.    General    Mutual    Investment 

Building  Society 276 

v.  Hirsch 1324 

v.  James  1478 

v.  London  and  Provincial  Insu- 

rance Co 1007 

v.  Midland  Ry 993,1293 

v.  Southall  1237 

v.  Walker,  Walker,  In  re 2084 

Wall,  In  re 968 

v.  Stanwick 970 

Wallace's  case    350 

Wallace,  Ex  parte,  Wallace,  Inre  ...  112, 1391 

In  re,  Campbell,  Ex  parte  ...  169, 173 

In  re,  Richards  or  Wallace,  Ex 

parte  112,1391 

Wallasey  Local  Board  v,  Gracey 864 

Wallis,  In  re,  Sully,  Ex  parte  124 

v.  Wallis    


Walls  v.  Thomas    1229 

Walmsley    v.    Mundy,    Goodenough,   Ex 

parte    57 

Walrond  v.  Goldmann 258 

Walsh,  Inre  976 

In  re,  Trustee,  Ex  parte    9 

«.  Blayney 208 

-    r.Whiteley  ltf 


Walter  v.  Emmott    614, 182* 

«.  James 1473 

v.  Parrott,  Parrott,  In  re 1613,2069 

Walters,  In  re,  Moore  v.  Bemrose 325 

Walton  «.  Edge 280 

Wandsworth  Board  of  Works  v.  United 

Telephone  Co.    1215,1804,1816 
District  Local  Board  v.  Post- 
master-General     1816 

Wanklyn  v.  Wilson  1425 

Warburg,  Ex  parte,  Whalley,  In  re  ...  102, 204 

Ward's  Estate,  In  re 1126 

Ward,  Ex  parte,  Gamlen,  In  re    117 

Inre 1754,1756 

v.  Dudley  (Countess)   1228 

v.  Holmes,  Dean,  In  re    1769 

*.  Huckle    2013 

v.  Royal  Exchange  Shipping  Co.  ...    365 

v.  Sharp 1452,1504,1739 

v.  Sheffield  (Mayor)  514,866 

v.  Wood,  Wood,  In  re  2020 

Waring  v.  Pearman 54,531 

v.  Scotland  1795 

Warkworth,  The 1701, 1804 

Warne  v.  Lawrence  504 


TABLE    OF    CASES. 


55 


Warne  v.  Seebohm    503 

Warner  v.  Moir,  Moir,  In  re  2075 

Warren,  Ex  parte,  Holland,  In  re. 1 57 

In  re,  Weedon  v.  Warren 780 

Warren's  Settlement,  In  re 932 

Trusts,  In  re  969,  1617,  2101 

Washburn  and  Moen  Manufacturing  Co.  v. 

Patterson 35 

Waterhouse  v.  Gilbert  25,1044 

v,  Worsnop  1167 

Waterman  v.  Ayres 1831, 1838, 1839 

Waterman's  Trade-mark,  In  re    ...   1831, 1838, 

1839 

Watkin  v.  Neweomen  799 

Watkins,  Ex  parte,  Watkins,  In  re  202 

Ex  parte,  Wilson,  In  re 198 

In  re,  Watkins,  Ex  parte 202 

v.  Evans 238,248 

Watkinson,  Ex  parte,  Wilson,  In  re 198 

Watson,  Ex  parte,  Argle  Coal  and  Cannell 

Co.,  In  re 450 

Ex  parte,  Sheffield  Building  So- 

ciety, In  re  269,734 

In  re  790, 1158, 1785, 1902 

In  re,  Carlton  v.  Carlton 1993 

In  re,  Oram,  Ex  parte 110 

In  re,  Phillips,  Ex  parte 30,  786 

v.  Black  : 711 

v.  Blakeney,  Hendry,  In  re 302 

v.  Strickland    238,263 

v.  Young  2039,2081 

Watson's  Trusts,  In  re 2035 

Watts,  In  re,  Cornford  v.  Elliott...  301,  302.  616 

Waye  v.  Thompson   861 

Wayman  v.  Monk,  Monk,  In  re 693 

Weaver,  In  re,  Higgs  v.  Weaver    209 

Webb,  Ex  parte,  Webb,  In  re 175,  202 

In  goods  of 2008 

v.Jonas  1872 

v.  Kerr    1509 

v.  Shaw 43,1044 

v.  Smith   62,1689 

Webber,  Ex  parte,  Webber,  In  re 133 

Weblin  v.  Ballard  1197,1198 

Webster,  In  re,  Derby  Union  v.  Sharratt 

1165,  1387 

In  re,  Foster,  Ex  parte 87, 174 

t\  Armstrong 732 

v.Bond   289 

v.  Friedeberg 1475 

v.  Myer    1496 

«.  Patteson 1275 

v.  Rickards,  Hobson,  In  re 924 

v.  Southey  310,1389 

Webster's  Estate,  In  re,  Wigden  v.  Mello  2049 

Weedon  v.  Warren,  Warren,  In  re  780 

Weekes'sCase    401 

Weekes  *.  King „ 861 

Weguelin  v.  Wyatt   1565 


Weir,    In   re,  Hollingworth    «.    Willing    628, 

1309 

Welch  v.  Channell,  Evans,  In  re 976, 1893 

v.  Gardner 2006 

v.  London  and  North  Western  By.     287 

v.  National  Cycle  Works  Co 1274 

v.  Peterborough  (Bishop)  689 

Weld,  J»r<?    1159 

Weldon  t>.  De  Bathe    631,  941 

v.Gounod    769,1483 

v.  Maples 34 

v.  Neal 694,846,940,  1602 

v.  Riviere     940 

v.  Weldon  889,607 

v.  Window  940 

Wellcome's  Trade-mark,  In  re  1835 

Weller*.  Stone 499 

Wellfield  (Owners)  v.  Adamson  1712 

Wells  v.  Masons'  Company  of  London 515 

v.  Stanforth    714 

Wemyss,  Ex  parte,  Wemyss,  In  re  114 

Wenlock  (Baroness)  v.  River  Dee  Co.  67, 342, 365, 

366,  669 
Wenmoth'8   Estate,  In   re,  Wenmoth   v. 

Wenmoth    2039 

Wennhak  v,  Morgan 636,1189 

Wentworth  v.  Humphrey  318 

Werlev.  Colquhoun 1570 

Wernher,    Ex  parte,    Eimberley    North 

Block  Diamond  Mining  Co.,  In  re 391 

Werra,  The     1709 

West,  Ex  parte,  Mount  Morgan  (West) 

Gold  Mine,  In  re  349 

West  v.  Turner,  Kelly's  Settlement,  In  re    961 
West  African  Telegraph  Co.,  In  re,  Vivian 

k  Co.,  In  re  379 

Bromwich  School  Board  v.  West 

Bromwich  Overseers 1374 

Cannock  Colliery  Co.,  Ex  parte, 

Pearson,  In  re 156 

Cumberland  Iron  and  Steel  Co.,  In 

re    380 

Devon  Great  Consols  Mine,  In  re 

38,  211,  440,  563 

Lancashire  Ry.  v.  Iddon  1545 

London  Commercial  Bank,  In  re  430, 

595 

v.  Kit- 

son  218, 
358, 1519 

v.  Re- 
liance Permanent  Building 
Society  1260 

Middlesex     Waterworks    Co.     v. 

Coleman   1966 

-^   Norfolk  Farmers'  Manure  Co.  v. 

Archdale   1608 

Riding  JJ.  v.  Reg.      1982 

Westacott  v.  Smalley  220 


56 


TABLE    OF    OASES. 


Westbrook  v.  Field  16 

Westbury-on-Severn  Sanitary  Authority  v. 

Meredith    6,1397 

Western  Suburban,  &c.,  Permanent  Benefit 

Society  v.  Martin  276 

Westfield  and  Metropolitan  By.  Cos.,  In  re  1123 

v.  Metropolitan  District  By.     ...  1123 

Westhead  v.  Biley     770 

Westminster  Fire  Office  v.  Glasgow  Provi- 
dent Investment  Society 1007 

Weston  v.  Neal,  Neal,  In  re   1434 

Westropp's  Divorce  Bill  905 

Westropp  v.  Elligott    1059 

Wexford,  The    1726 

Whaley  v.  Buafield,  Busfield,  In  re...  1484, 1809 
Whalley,  2»  r«,  Warburg,  Ike  parte  ...  102,204 

v.  Lancashire  and  Yorkshire  By.  1546, 

1973 
Wheal  Buller  Consols,  In  re,  Jobling,  Ex 

parte   444 

Wheatcroft  v.  Matlock  Local  Board 859 

Wheatley,  In  re,  Smith  v.  Spence  703,  923 

v .  Silkstone   and    Haigh    Moor 

Coal  Co 372 

Wheekerc.  Webb 850 

Wheeler  v.  United  Telephone  Co 1428 

Whelan  v.  Palmer     2100 

Whetham  v.  Davey    1236, 1326 

Whicher,  In  re,  Stevens,  Ex  parte    137 

Whickham,  The     654 

Whinney,  Ex  parte,  Grant,  In  re  136, 174 

Ex  parte,  Sanders,  In  re    ...  109,  443 

Whistler  and  Bichardson,  In  re     779 

Whitaker,  In  re,  Trustee,  Ex  parte  ...  119, 194 

In  re,  Christian  v.  Whitaker   ...    946 

v.  Derby  Urban  Sanitary   Au- 

thority         863 

Whitby  v.  Highton,  Taylor,  In  re     1992 

White,  Ex  parte,  White,  In  re    181,207 

Inre  1788 

In  re,  Official  Beceiver,  Ex  parte  136, 

196 

Inre,  White,  Ex  parte   181,207 

v.  Baxter  1521 

v.  Bywater 849 

v.  City  of  London  Brewery  Co.  ...  1057, 

1263 

p.  Ditchfield 1649 

v.  Haymen 348 

t?.  McMahon 470 

v.  Milne 558,1044 

v.  Neaylon 320 

v.  Norwood  Burial  Board  699 

v.  Peto 1212,1299 

v,  Bandolf ,  Gibbes'  Settlement,  In 

re 2098 

White's  Trusts,  In  re    309 

" White  Bose "  Trade-mark,  Inre 1844 

Whitehall  Court,  In  re 361 


Whitehaven  Mutual  Insurance  Society,  Ex 

parte,  Shepherd,  In  w.,.149,  160 

Joint   Stock  Banking  Co.  v. 

Beed. 373 

Whitehead,  Ex  parte,  Whitehead,  Inre...    132, 

474,  917 

Inre   21,1741 

In  re,  Whitehead,  Ex  parte  132, 474, 

917 
Whitehouse,  In  re,  Whitehouse «?.  Edwards  12 
Whitehouse 's  Claim,  General  Horticultural 

Co.,  Inre    70,368 

Whiteley,  In  re,  Whiteley  r.  Learoyd  770, 1454 

v.  Barley 645,876 

v.  Learoyd,  Whiteley,  In  re  ...    770, 

1454 

Whitham  v.  Kershaw  1082 

Whiting  p.  East  London  Waterworks  Co....  1964 
Whitley  &  Co.,  In  re,  Callan,  Ex  parte  ...   350, 

451, 1512 

Whittaker,  In  re   90 

Whitten  v.  Hanlon    2094 

Whittick  v.  Mozley  474 

Whittingstall  v.  Grover  793,1330 

Whitton  v.  Hanlon   1501 

WhitwelTs  Estate,  In  re 1321 

Whorwood,  In  re,  Ogle  v.  Sherborne  (Lord)  2036 
Whyte  v.  Ahrens  646,1452 

v.  Tyndall 1079 

Wickham,  In  re,  Marony  v.  Taylor  1 434 

Wicksteed  v.  Biggs 535,665 

Wigden  v.  Mello,  Webster's  Estate,  In  re. . .  2049 
Wiggeston  Hospital  and  Stephenson,  In  re     63, 

1482 

Wight  v.  Shaw  521 

Wigram  «.  Fryer 1121, 1810 

Wilcock,  Inre  1629 

Wilcoxon,  In  re,  Andrews,  Ex  parte    1 45 

Wilde,  In  goods  of 2009,2010 

v.  Walford,  Harrald,  In  re 1787, 1898 

Wildy  r.  Stephenson 1521 

Wilkins,  Inre,WUkmsr.  Botherham...809, 1679, 

2128 

r.  Birmingham  (Mayor)    60 

v.Day  1976 

v.  Pryer,  Kingdon,  In  re 1995,  2098 

v.  Botherham,  Wilkins,  In  re  809, 1579, 

2128 
Wilkinson,   In  re,  Official    Beceiver,  Ex 

parte 162 

f?.  Collyer 1086 

v.  Jagger  558,831 

Wilkinson's  Trusts,  Inre 2068 

Wilks,  Ew  parte    610 

v.  Bannister. 2033,2049 

Willett,  In  goods  of  2009 

William  Symington,  The 1712 

Williames,  In  re,  Andrew  v.  Williames,  787,1894 
Williams.  Ex  parte,  Williams,  Inre    203 


TABLE    OF    CASES. 


57 


Williams,  In  re,  Daviesv.  Williams 1154 

In  re,  Green  v.  Burgess 796 

In  re,  Jones  v.  Williams   82,  210, 1808 

~     In  re,  Official  Receiver,  Ex  parte    197 

In  re,  Pearce,  Ex  parte 247 

In  re,  Spencer  v.  Brighouse  2046, 2122 

In  re,  Williams,  Ex  parte 203 

■           v.  British  Marine  Mutual  Insu- 
rance Association 1021 

v.  Colonial  Bank  ...76,  895, 1038, 1305 

v.  De  Boinville 1482 

v.  Gorvin,  Richards,  In  re 2055 

v.  Great  Western  By 17,  288 

v.  Jenkins,  Price,  In  re  811 

v.Jones  542,751,1794 

v.  Mercier 950 

v.  Morgan 820 

v.  Peel  River  Land  Co 642 

— — -     v.  Pounder,  Pounder,  In  re  2059 

v.  Ramsdale 1438 

v.  Shadbolt    221 

v.  Smith 632 

v.  Wallasey  Local  Board  855 

v.  Wandsworth  Board  of  Works    1219 

v.  Ward 521 

-     v.Ware 1429 

v.  Williams  2062 

v.  Wynne 1069 

Williams'  Claim,  Great  Eastern  Steamship 

Co.,  Inre  1656 

Trusts,  Inre 1904 

Williamson  v.  Burrage 1273 

v.  Farnell  or  Farwell 1619 

v.  North  Staffordshire  Ry 537 

Willis,  In  re,  Kennedy,  Ex  parte 228 

v.  Beauchamp  (Earl) 1435, 1464 

v.  Combe    1642 

Willoughby,  In  re 976 

Wills  v.  Luff  1268 

Willyams  v.  Scottish  Widows  Fund 742 

Wilmott  v.  Freehold  House  Property  Co.     1424, 

1442 

v.  London  Celluloid  Co 374,  435 

Wilson,  In  re  1771,1919 

In  re,  Alexander  v.  Calder 763,  802 

. In  re,  Parker  v.  Winder    2027 

In  re,  Pennington  v.  Payne 781 

In  re,  Watkins  or  Watkinson,  Ex 

parte 198 

In  re,  Wilson  v.  Alltree 526,  667 

and  Green,  In  re 62 

v.  Alltree,  Wilson,  In  re 627,  667 

v.Barnes 311 

v.  Conde  D'Eu  Ry 51 

v.  DeCoulon   758 

v.  Duguid  2026,2103 

v.  Fasson 1565 

v.  Glossop 914 

v.  Kenrick    1619 


Wilson  v.  Knox 2041 

v.  M'Mains    521 

v.Noble 1508 

v.Owens 1297 

v.Wilson    758 

v.  The  Xantho  1661 

Wilton  v.  Leeds  Forge  Valley  Co 557 

Wimbledon  Local  Board  v.  Croydon  Sani- 
tary Authority 861,  987 

Winby,  Ex  parte,  Winby,  Inre    118 

Winchilsea(Earl)  Policy  Trusts,  In  re  1000, 1877 
Winder  v.  Kingston-upon-Hull   1166, 1388, 1861 

Windham  v.  Bainton    535 

Windsor  and  Annapolis  By.  v.  Reg 597 

Winfield  v.  Boothroyd  548,  642, 1809, 1865 

Wingrove  v.  Wingrove 1991 

Winn,  In  re,  Reed  v.  Winn 920 

Winslow,  In  re,  Godfrey,  Ex  parte  136 

Winstanley's  Settled  Estates,  Inre 1640 

Winston,  The 1679 

Winterbottom,  Ex  parte,Wmterbottom,  In 

re 103,111 

Wise,  In  re,  Brown,  Ex  parte    88,  208,  209 

In  re,  Croydon  County  Court  Re- 
gistrar, Ex  parte  88,  208,  209 

In  re,  Mercer,  Ex  parte  825 

Withall  v.  Nixon  1274 

Witham  v.  Vane    618, 1224, 1463 

Wittv.  Banner 240 

Witten,  Inre 980 

Wittmann  v.  Oppenheim    519, 1860 

Witton,  In  re,  Arnal,  Ex  parte 120, 121 

Woburn  Union  v.  Newport  Pagnell  Union    863 
Wolstenholme,  Ex  parte  ,Wolstenholme,ift  re    99 

v.  Sheffield  Union  Banking 

Co 78 

Wolverhampton  Banking  Co.,   Ex  parte, 

Campbell,  Inre  ...  167, 168, 

206,  484 

Tramways    Co.  v.   Great 

Western  Ry 1861 

Womersley,  In  re,  Etheridge  v.  Womersley    806 

Wontner,  In  re,  Scheyer,  Ex  parte  1786 

Wood,  Ex  parte,  Burden,  Inre 85 

In  re,  Ward  v.  Wood    2020 

v.  Anderston  Foundry  Co 1410 

v.  Aylward 469 

v.Calvert    1763,1771 

v.  Chandler    713 

v.  Douglas,  Douglas, Inre 724, 1207 

v.  Durham  (Earl) 688, 1498, 1600 

v.  Lambert 1841, 1867 

v.Silcock    265,1796 

v.  West  Ham  Gas  Co 842 

v.Wood  892,901 

Wood's  Estate,  In  re,  Commissioners  of 
Works  and  Public  Buildings,  Ex 

parte 596, 1130, 1802 

Trade-mark,  Inre 1841, 1857 


5» 


TABLE    OF    CASES. 


Woodall,  J»  »v  23,814 

Woodgate  v.  Great  Western  By 285 

Woodhall,  Ex  parte 23 

Ex  parte,  Woodhall,  In  re 107 

Woodham,  In  re,  Conder,  Ex  parte  ...  168, 1644 

Woodhill  v.  Sunderland  (Mayor)  866 

Woodhouse  v.  Balfour 2000 

t?.  Spurgeon    2058 

Woodruff  v.  Brecon  and  Merthyr  Tydvil  Ry.  1543 

Woods  v.  Woods 906 

Woodward,  Ex  parte,  Lay,  In  re  126 

In  re,  Huggins,  Ex  parte 1 26 

v.  Goulstone 1999 

v.  Sansum  1341 

Woolhouse,  In  re  1159 

Woolley  v.  Thorniley,  Thorniley,  In  re 1466 

Woolstenholme,  In  re,  Foster,  Ex  parte  ...      98 

Workman  v.  Petgrave,  Wait,  In  re   2096 

Worthington  v.  Dublin,  Wicklow  and  Wex- 
ford Ry 650 

«.  Gill 1979 

Worswick,  In  re,  Robson  r.  Worswick 647 

Wortley  v.  St.  Mary,  Islington   1219 

Wraggs'  Trade-mark,  In  re 1846, 1850 

WTaj,Inre 113,1743 

v.  Kemp  1735 

Wrey,  In  re,  Stuart  v.  Wrey  2044 

Wright's  Trusts,  In  re    932, 1639 

Wright  and  Marshall,  In  re 1611,1883 

r.  Harris 1047 

v.  HettoniDowns  Co-operative  Society  1864 

v.  Horton    367 

«.  Ingle 697, 1218 

t.  Midland  Ry 1288, 1290 

v.  Robotham 630 

v.  Sanderson,  Sanderson,  In  re 39, 

2001 

v.  Wallasey  Local  Board 697 

v.  Watson  163 

v.  Woods,  Harvey,  In  re 809 

Wybrants  v.  Maffett 2113 

Wycombe  Union  v.  Marylebone  Guardians  1381 
Wyggeston  Hospital  and  Stephenson,  In  re     53, 

1482 

Wylsonv.  Dunn  470,  1799 

Wyman  v.  Knight 2137 

Wy  thes,  Ex  parte,  Middlesborough  Building 
Society,  In  re 274 


X.,  In  re 


1776 


Y. 

Yan-Tean,The  "07 

Yapp,  In  re,  Trustee,  Ex  parte 196 

Yarmouth  v.  France 1190, 1195, 1198, 1200 

Exchange  Bank  v.  Blethen  ...618, 736 

Yates,  In  re,  Batcheldor  or  Batchelor  tr. 

Yates  227,1258 

and  Kellett's  Patent,  In  re   1351 

r.  Reg 639 

Yeilding  and  Westbrook,  In  re 1939 

Yelland  v.  Winter 1562 

Yeo  v.  Dawe  216, 1558 

Yeoland  Consols,  In  re  414,454 

York,  In  re,  Atkinson  «.  Powell  210 

Yorkshire  Banking  Co.  v.  Mullan  1268 

Tannery  v.  Eglington  Chemical 

Co 1412,1419 

Young,  Ex  parte,  Young,  In  re 172 

In  re,  Trye  «.  Sullivan . . .  939, 1992, 2085 

In  re,  Young,  Ex  parte 172 

and  Harston,  In  re  1940,1948 

v.  Beattie 1499 

v.  Holloway,  Holloway,  In  re  649, 659, 

2014 

v.  Schuler 752 

Youngev.  Cocker 983,1267 

Youngs,  In  re,  Doggett  v.  Revett   29,  804, 1434, 

1480 

In  re,  Vollum  v.  Revett...  29,  804, 1480 

Yourri,  The 1690 

Ystradfodwg    Local    Board,    Ex    parte, 

Thomas,  In  re 140,873 


Z. 

Zadok,  The  1685,1686 

Zappert,  In  re    120 

Zerfass,  Ex  parte,  Sandwell,  In  re 121 

Zeus,  The 1720 

Zoe,  The 1701 

Zoedone  Co.,  In  re 418 


THE    END. 


MtADBUBT,  AQ9KW,   &   CO.,    PRIfTTERS,    W H  ITBPRIAlUl. 


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